HTH Corporation, Pacific Beach Corporation, and Koa Management, LLC dba Pacific Beach Hotel (as a si

National Labor Relations Board - Board Decisions

Oct 24, 2014

361 N.L.R.B. 709 (N.L.R.B. 2014)

HTH CORP. 709
HTH Corporation, Pacific Beach Corporation, and
KOA Management, LLC, a single employer,
d/b/a Pacific Beach Hotel and International
Longshore and Warehouse Union, Local 142.
Cases 37–CA–007965, 37–CA–008064, 37–CA–
008094, 37–CA–008096, 37–CA–008097, 37–CA–
008112, 37–CA–008113, and 37–CA–008145.
October 24, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, JOHNSON, AND SCHIFFER
On September 13, 2011, Administrative Law Judge
John J. McCarrick issued the attached decision.1 The
Respondents filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondents filed a reply brief. In addition, the General
Counsel filed cross-exceptions and a supporting brief, the
Respondents filed an answering brief, and the General
Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions, to modify his remedy, and to
1 On November 21, 2011, after the judge issued his decision, the
United States District Court for the District of Hawaii issued an injunc-
tion under Sec. 10(j) of the National Labor Relations Act, ordering the
Respondents to offer immediate reinstatement to unlawfully discharged
employee Rhandy Villanueva; immediately rescind, at the Union’s
request, unilateral changes to bargaining unit employees’ terms and
conditions of employment; provide requested information to the Union;
and post the order and have it read aloud. Frankl v. HTH Corp., 825
F.Supp.2d 1010 (D. Haw. 2011), affd. 693 F.3d 1051 (9th Cir. 2012).
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondents violated Sec.
8(a)(5) and (1) of the Act by unilaterally suspending matching contribu-
tions to employee 401(k) accounts from January 1 to May 1, 2010, we
do not rely on his discussion of the impossibility of impasse in negotia-
tions on June 24, 2010.
Although fully discussed in his decision, the judge inadvertently
failed to specifically state that certain refusals to furnish requested
information by the Respondents violated Sec. 8(a)(5) and (1). There-
fore, we clarify that, in addition to the refusals to furnish information
specifically found by the judge, the Respondents unlawfully refused to
respond to (a) the Union’s June 18, 2010 request for a copy of employ-
ee Rhandy Villanueva’s May 20, 2010 written warning and all state-
ments and notes that the Respondents considered before disciplining
Villanueva, and (b) the Union’s July 26 and August 6, 2010 requests
for the Respondents’ investigative records and any other documents
that they relied on in discharging Villanueva. We correct these omis-
sions by the judge and find that this conduct violated the Act as alleged.
adopt the recommended Order as modified and set forth
in full below.
AMENDED REMEDY
During the Respondents’ 10-year history of violations
before us and the Federal courts, we have imposed our
usual remedies and secured Section 10(j) injunctions.3 In
addition to the egregious and pervasive violations we
find today,4 we have found in prior decisions that the
Respondents maintained an overbroad solicitation policy
and threatened and coerced employees (which made it
necessary for us to overturn election results and rerun the
election),5 unlawfully granted promotions and wage in-
creases during the critical period before an election,6
There are no exceptions to the judge’s finding that the Respondents
violated Sec. 8(a)(1) by disparaging the Union by informing employees
that union representatives Dave Mori and Carmelita Labtingao were
banned from the hotel. There are also no exceptions to the judge’s
findings that the Respondents violated Sec. 8(a)(5) and (1) by substan-
tially refusing to respond to the Union’s November 24, 2009 request for
information related to their cessation of 401(k) plan matching contribu-
tions, and by refusing to respond to the Union’s July 16, 2010 request
for information related to Villanueva’s suspension.
We agree with the judge that Rhandy Villanueva’s warning, suspen-
sion, and discharge were unlawful under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). We do not rely on the judge’s recitation of the Wright Line
standard, however, to the extent it implies that the General Counsel
must establish a separate “nexus” element in his initial burden. See,
e.g., Mesker Door, 357 NLRB 591, 592 fn. 5 (2011) (noting that there
is no “nexus” element in the General Counsel’s initial burden under
Wright Line).
In accordance with the General Counsel’s request, we shall correct
the judge’s description of the collective-bargaining unit set forth in his
decision and in his recommended Order and notice.
3 See HTH Corp., 356 NLRB 1397 (2011); Pacific Beach Corp., 344
NLRB 1160 (2005) (finding actions interfered with second election);
Pacific Beach Hotel, 342 NLRB 372 (2004) (finding actions interfered
with initial election). See also Frankl v. HTH Corp., 832 F.Supp.2d
1179 (D. Haw. 2011) (granting contempt relief); Frankl v. HTH Corp.,
825 F.Supp.2d 1010 (granting Sec. 10(j) injunction), affd. 693 F.3d at
1061–1067; Norelli v. HTH Corp., 699 F.Supp.2d 1176 (D. Haw. 2010)
(granting Sec. 10(j) injunction), and 699 F.Supp.2d 1208 (ordering Sec.
10(j) relief), affd. sub nom. Frankl v. HTH Corp., 650 F.3d 1334 (9th
Cir. 2011), cert. denied 132 S.Ct. 1821 (2012).
4 As set forth in detail in the attached administrative law judge’s de-
cision and our Order, these violations include warning, suspending, and
discharging an employee because of his union activity, unilaterally
changing terms and conditions of employment by restricting the exer-
cise of previously agreed-upon union access practices, increasing
housekeepers’ assignments, ceasing contributions to the employees’
401(k) plan, failing to provide information requested by the Union that
is relevant and necessary for the Union to perform its duties as exclu-
sive bargaining representative, placing employees under surveillance
while they engage in union activity, undermining the Union by telling
employees that union agents are barred from the premises, threatening
union agents with removal from public sidewalks because they are
passing out union literature, and intimidating union representatives
engaging in lawful leafleting.
5 Pacific Beach Hotel, 342 NLRB at 372–374.
6 Pacific Beach Corp., 344 NLRB at 1162.
361 NLRB No. 65

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
unlawfully discharged members of the Union’s bargain-
ing committee, promulgated numerous overbroad rules,
threatened employees with job loss, bargained in bad
faith, unlawfully withdrew recognition from the employ-
ees’ chosen representative, unilaterally changed various
terms and conditions of employment, unlawfully im-
posed discipline, laid off employees and reassigned em-
ployees to other jobs without providing the Union notice
and opportunity to bargain, and refused to provide the
Union with requested information to enable it to fulfill its
bargaining responsibilities.7 Not only have the Respond-
ents repeatedly acted to prevent employees from exercis-
ing their Section 7 rights and retaliated against employ-
ees when they nevertheless dared to exercise their rights,
but the Respondents’ violations have tended to under-
mine the Union as the employees’ freely chosen repre-
sentative. These violations have tended to weaken the
Union in the eyes of its members and may well have
forced it to incur additional expenses in an attempt to
maintain employee support undermined by the Respond-
ents’ unlawful conduct.
Despite having been found in violation of multiple
provisions of the Act, having been found to have en-
gaged in objectionable conduct that interfered with elec-
tions on two occasions, having been subject to two Sec-
tion 10(j) injunctions, and having been found in con-
tempt of court for violating a Federal district court’s in-
junction, the case before us demonstrates that the Re-
spondents still have not complied with the remedial obli-
gations imposed on them during our earlier encounters.
Rather, they have continued to engage in unlawful activi-
ty, some of which repeatedly targeted the same employ-
ees for their protected activity and detrimentally affected
collective bargaining. For example, after the Board held
that the Respondents unlawfully imposed unilateral in-
creases to housekeepers’ workloads in 2007, the Re-
spondents only briefly restored the lower workloads be-
fore again unilaterally raising them.8 Similarly, the Re-
spondents unlawfully disciplined, suspended, and then
discharged discriminatee Rhandy Villanueva a second
time for his protected activity, after he was reinstated
pursuant to a Federal district court order of interim in-
junctive relief.9 By their actions, their words,10 and their
7 HTH Corp., 356 NLRB No. 182, slip op. at 3–6.
8 See id., slip op. at 5.
9 See Norelli v. HTH Corp., 699 F.Supp.2d at 1207, 1208–1209;
HTH Corp., 356 NLRB 1397, 1401. Villanueva was again reinstated
pursuant to the second Sec. 10(j) order. See Frankl v. HTH, 825
F.Supp.2d at 1018–1031, 1050.
10 The credited testimony shows that when union representative
Dave Mori notified the Respondents’ regional vice president of opera-
tions, Robert Minicola, that the changes in housekeeping room assign-
ments and the cessation of matching 401(k) contributions violated the
contempt of court,11 the Respondents have made plain
their persistent indifference toward their responsibilities
under the Act and their equally persistent defiance of the
Board and the courts.
Notably, in affirming the district court’s most recent
Section 10(j) injunction, the Ninth Circuit expressly con-
demned the Respondents’ conduct and the blatant disre-
gard that the Respondents have demonstrated for the
Board’s processes:

Two themes repeat themselves in the decade-long his-
tory of this dispute. The first is HTH’s defiance of the
Labor Act and its employees’ statutory rights. The se-
cond is HTH’s consistent losses before the agency and
the courts. A skeptical adjudicator might question
whether HTH has ever taken seriously its obligations
under the law. We hope that we do not need to consid-
er that question again.

Frankl v. HTH Corp., 693 F.3d at 1066–1067.
In addition to the Board’s standard remedies for the
specific violations in this case, the judge has recom-
mended a broad cease-and-desist order as well as a no-
tice-reading requirement. We agree that these remedies,
as far as they go, are appropriate. Under the circum-
stances of this case, however—where, as described
above, the Respondents’ unfair labor practices have been
severe and pervasive and have lasted for over a decade,
notwithstanding the Board’s enforcement efforts—we
find that a broad cease-and-desist order and a notice-
reading requirement are insufficient to dissipate the like-
ly chilling effects of the Respondents’ unlawful conduct,
to promote the free exercise of Section 7 rights, and to
fully restore the Union to its former position.
We have broad discretion to exercise our remedial au-
thority under Section 10(c) of the Act even when no par-
ty has taken issue with the judge’s recommended reme-
dies. Teamsters Local 122, 334 NLRB 1190, 1195
(2001), enfd. mem. No. 01–1513 (D.C. Cir. 2003) (con-
sent judgment); WestPac Electric, 321 NLRB 1322,
1322 (1996); Indian Hills Care Center, 321 NLRB 144,
144 fn. 3 (1996). That statutory provision directs us,
upon finding a violation, to require “such affirmative
action including reinstatement of employees with or
without backpay, as will effectuate the policies of th[e]
Act.”
With these principles and goals in mind, we turn to the
question of whether additional remedies, beyond those
ordered by the judge, are necessary and appropriate here
10(j) order imposed by United States District Court Judge Seabright on
March 29, 2010, Minicola responded, “Fuck the judge. He’s wrong
. . . [the changes are] not illegal unless I go to jail.”
11 Frankl v. HTH, 832 F.Supp.2d at 1216–1217.

HTH CORP. 711
to effectuate the policies of the Act. We must tailor the
remedies to the violations in each case. See NLRB v.
Mackay Radio & Telegraph Co., 304 U.S. 333, 348
(1938); Ishikawa Gasket America, 337 NLRB 175, 176
(2001), enfd. 354 F.3d 534 (6th Cir. 2004) (Board may
impose additional remedies “where required by the par-
ticular circumstances of a case”). Our remedial goal is to
reaffirm to employees their Section 7 rights and to reas-
sure them that the Respondents will respect those rights
in the future. See Guardsmark, LLC, 344 NLRB 809,
812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007); see also Tiidee Products, Inc., 196 NLRB 158,
159 (1972), enfd. sub nom. International Union of Elec-
trical, Radio & Machine Workers v. NLRB, 502 F.2d 349
(D.C. Cir. 1974), cert. denied 417 U.S. 921 (1974).12
Here, we draw primarily on the Board’s established
remedial options, including some that have not been used
regularly but are clearly established in precedent. We
also find it appropriate, in the context of this case, to
enhance some of these established remedies, while tailor-
ing them to the circumstances here. Our analysis, as set
forth below, begins with monetary remedies, including
the award of litigation costs to the General Counsel and
the Union, as well as certain other costs incurred by the
Union as a direct result of the Respondents’ unfair labor
practices. We next consider the need to ensure that the
Respondents’ employees are fully informed of the
Board’s actions and the protections of the Act, address-
ing the notice-posting requirement and examining the
reasons why the circumstances here warrant an extended
posting period, notice mailing, and an additional Expla-
nation of Rights. Following that examination, we apply
the historically recognized remedy of publication in me-
dia of general circulation in the area and our standard
rescission of unlawful unilateral changes. Next, we ex-
plain the need for supervisory attendance at notice read-
ings and a narrowly-crafted visitation remedy to ensure
the Respondents’ compliance with the mailing, posting,
and publication components of our Order over the ex-
tended period we find necessary and order today. Final-
ly, we address whether nontraditional remedies may be
required to make whole employee Rhandy Villanueva,
who twice has been unlawfully discharged.
After consideration of the full record, as well as the na-
ture of the violations before us, we amend the judge’s
recommended remedies and modify his recommended
12 While we observe that aspects of restoration and deterrence may at
times be found in the same remedy (as with standard backpay awards),
see NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175 (2d Cir. 1965),
cert. denied 384 U.S. 972 (1966), we do not rely on deterrence alone to
justify any particular remedial action. See Republic Steel Corp. v.
NLRB, 311 U.S. 7, 12 (1940).
Order to conform to our findings below and to the
Board’s standard remedial language.13 We also substi-
tute a new notice to conform to the Order as modified
and in accordance with Durham School Services, 360
NLRB 694 (2014).
1. Litigation expenses of the General Counsel and
the Union
The Board has awarded litigation expenses where a re-
spondent asserts frivolous defenses or otherwise exhibits
bad faith in the conduct of litigation or actions leading to
the litigation. See, e.g., Camelot Terrace, 357 NLRB
1934 (2011); Teamsters Local 122, 334 NLRB 1190,
1193 (2001); Alwin Mfg. Co., 326 NLRB 646, 647
(1998), enfd. 192 F.3d 133 (D.C. Cir. 1999); Lake Holi-
day Manor, 325 NLRB 469, 469 fn. 5 (1998); see gener-
ally Roadway Express, Inc. v. Piper, 447 U.S. 752, 766
(1980). We find that standard met here by, inter alia, the
Respondents’ conduct leading up to the instant litigation.
Accordingly, we order the Respondents to reimburse the
General Counsel and the Union the costs and expenses
incurred in the investigation, preparation, presentation,
and conduct of the present proceeding before the Board,
including reasonable counsel fees, salaries, witness fees,
transcript and record costs, printing costs, travel expens-
es and per diems, and other reasonable costs and expens-
es.14 These costs shall be determined at the compliance
stage.
In ordering this remedy, we rely on the Board’s inher-
ent authority to control and maintain the integrity of its
own proceedings through an application of the bad-faith
exception to the American Rule.15
13 In addition to the remedies discussed below, and modifications to
conform to the Board’s standard remedial language, we shall modify
the judge’s recommended Order in accordance with our decision in
Indian Hills Care Center, supra. We shall also order the Respondents
to compensate all affected unit employees and former unit employees,
including Rhandy Villanueva, for the adverse tax consequences, if any,
of receiving lump-sum backpay awards and to file a report with the
Social Security Administration allocating the backpay awards to the
appropriate calendar quarters for each employee. Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014).
In addressing the Respondents’ unlawful unilateral increase to
housekeepers’ workloads, the judge found that the Respondents “disci-
plined housekeepers who failed to clean their assigned number of
rooms,” including issuing discipline to housekeeper Marissa Julian for
“failing to clean the 17 rooms assigned to her in the Beach Tower” of
the hotel. However, the judge did not provide a remedy for that disci-
pline. We do so here.
Finally, we correct several inadvertent errors made by the judge in
his statement of Remedy and proposed Order.
14 Neither the General Counsel nor the Union has requested an award
of litigation costs or attorneys’ fees.
15 See Frontier Hotel & Casino, 318 NLRB 857, 864 (1995), enf.
denied in relevant part sub nom. Unbelievable, Inc. v. NLRB, 118 F.3d
795 (D.C. Cir. 1997). In Unbelievable, the United States Court of
Appeals for the District of Columbia Circuit found that the Board did

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
The principles articulated and applied in Camelot Ter-
race and the Board’s earlier decisions relying on its in-
herent authority are directly applicable here (and, as in
Camelot Terrace, we need not pass on whether the
Board’s remedial authority under Section 10(c) of the
Act encompasses the remedy here).16 We have already
detailed the Respondents’ history before us. It reflects,
in the Ninth Circuit’s words, prolonged “defiance of the
Labor Act and . . . employees’ statutory rights.” Frankl
v. HTH Corp., 693 F.3d at 1066–1067. The Respondents
have failed to comply with the remedial obligations we
imposed during their earlier appearances before us, even
in the face of a Section 10(j) injunction. They have not
only retaliated against their employees for protected con-
duct, but have also targeted one employee for repeated
retribution. In sum, the Respondents have demonstrated
bad faith in their actions giving rise to the instant litiga-
tion by their failure to remedy their earlier unfair labor
not have the authority, under Sec. 10(c) of the Act, to order a respond-
ent to pay litigation costs incurred by the charging party and the Gen-
eral Counsel. But the court did not address the Board’s inherent power
to control its own proceedings through an application of the bad-faith
exception to the American Rule against awarding litigation expenses.
Id. at 800 fn.* As Judge Wald stated in her partial dissent in that case,
this necessary power allows an agency such as the Board “to ensure the
fairness, efficiency and integrity of its processes and the appropriate-
ness of the conduct of the parties appearing before it.” Id. at 812.
Judge Wald further recognized that awarding litigation expenses in
cases of severe misconduct “effectuates the policies of the NLRA by
directly remedying the economic injury incurred by the party.” Id. at
810. For these reasons, and as recognized in our subsequent decisions,
we find that the Board has the authority to award litigation costs pursu-
ant to the bad-faith exception to the American Rule against fee-shifting
based on our inherent authority to control the integrity of own proceed-
ings. See Camelot Terrace, supra, slip op. at 4–6; Lake Holiday Man-
or, supra at 469 fn. 5.
In their separate opinions, our dissenting colleagues Member
Miscimarra and Member Johnson, relying on the District of Columbia
Circuit’s decision in Unbelievable, supra, reject our position, but cite to
no authority squarely holding that the Board lacks the power to award
litigation expenses as a function of its inherent authority to preserve the
integrity of its own processes. To the contrary, as we noted in Camelot
Terrace, courts generally recognize that administrative agencies have
the inherent power to protect the integrity of their administrative pro-
cesses. Camelot Terrace, supra, slip op. at 5 (citing cases). There is no
reason to believe the courts intend the Board to be treated differently.
Even following its decision in Unbelievable, the District of Columbia
Circuit found an order requiring payment of litigation expenses under
the bad-faith exception to the American Rule was not “obviously ultra
vires” and chose not to review the Board’s remedy, although it could
have done so despite the employer’s failure to preserve the issue if it
believed the remedy was “patently in excess of the Board’s authority.”
See Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 143 fn. 13 (D.C. Cir.
1999).
16 Camelot Terrace, supra, slip op. at 4 fn. 10 (Because the Board
may award litigation expenses against a party who engages in bad-faith
conduct based on its inherent authority to control its own proceedings,
it is unnecessary to pass on whether it may alternatively do so under its
Sec. 10(c) remedial authority to effectuate the policies of the Act.).
practices and by their insistence on maintaining the terms
that they unlawfully instituted. As a result of these ac-
tions, the Respondents should bear the financial respon-
sibility for prolonging this case and depriving their em-
ployees of the relief from unfair labor practices to which
they are entitled.17
Contrary to Member Miscimarra’s and Member John-
son’s suggestion in their separate opinions, an award of
litigation expenses is not a punitive measure beyond the
Board’s statutory authority. The remedy, rather, is clear-
ly compensatory in nature: it redresses only the harm
caused to participants in the Board’s proceedings, by the
Respondents’ actions. The Respondents’ conduct has
forced the General Counsel to divert scarce resources and
time from other cases in order to once again take action
against the Respondents for their repeated defiance of its
obligations under the Act. Our award of litigation ex-
penses—measured by what the General Counsel and the
Union have been required to expend—helps restore the
parties to where they would have been but for the Re-
spondents’ unlawful conduct. See Phelps Dodge v.
NLRB, 313 U.S. 177, 194 (1941). At the same time, it
preserves the integrity of our processes, serving as a de-
terrent to violations of our Order in the instant case, en-
couraging compliance with our Order, and protecting the
rights of the parties before us. See Kentucky River Medi-
cal Center, 356 NLRB No. 8, slip op. at 4 (2010) (“en-
hanced monetary remedies also serve to deter the com-
mission of unfair labor practices and to encourage com-
pliance with Board orders”); NLRB v. Gissel Packing
Co., 395 U.S. 575, 612 (1969).18
17 We disagree with the views of Member Johnson and Member
Miscimarra that the Charging Party Union is not entitled to post-
complaint litigation costs because such participation on its part was
“voluntary.” In litigating unfair labor practices of the scope, variety,
and duration of those here, the “voluntary” participation of the Charg-
ing Party, exercising its right under the Board’s Rules and Regulations,
in preparing, filing, and presenting the charges and assisting in their
litigation, not only advances the interests of workers on whose behalf
the charges have been filed, but also inherently inures to the benefit of
the General Counsel in the presentation of the case. Of course, the
complexity of the case (evidenced by the 16-day hearing involving
myriad allegations and witnesses) was the result of the Respondents’
unlawful conduct and repeated abuse of Board processes. To be sure,
our award of litigation expenses is not based on the benefit conferred
by the Union’s participation, but on the Respondents’ bad faith and
conduct of this litigation. Protecting the integrity of the Board’s pro-
ceedings necessarily requires compensating those parties to the pro-
ceedings who were entitled to participate and who have been harmed
by the bad-faith conduct of an opposing party.
18 We are also unconvinced by Member Miscimarra’s and Member
Johnson’s view that we lack the authority to award litigation expenses
because Congress did not expressly authorize such a remedy when it
enacted the Act and that its absence warrants the conclusion that Con-
gress intentionally decided not to authorize fee-shifting. As explained,
we rely here (as the Board has done in the past) on the Agency’s inher-

HTH CORP. 713
2. Union bargaining and other expenses
The Board historically has awarded a union its reason-
able bargaining expenses in cases of unusually aggravat-
ed misconduct—where the respondent’s unfair labor
practices have “infected the core of a bargaining pro-
cess”—in order to make the union whole for its wasted
resources and to restore its prior economic strength.
Frontier Hotel & Casino, supra at 859, enfd. in relevant
part sub nom. Unbelievable, Inc., supra. Although not
lightly imposed, bargaining expenses are appropriate
where the effect of the respondent’s violations cannot be
eliminated by traditional remedies. See, e.g., Teamsters
Local 122, 334 NLRB at 1195; Harowe Servo Controls,
Inc., 250 NLRB 958, 964 (1980). Such expenses may
include, for example, reasonable salaries, travel expens-
es, and per diems. See EPE, Inc., 273 NLRB 1375, 1379
(1985); J. P. Stevens & Co., 239 NLRB 738, 773 (1978),
remanded 623 F.2d 322 (4th Cir. 1980), cert. denied 449
U.S. 1077 (1981).
In our view, the Respondents’ bad faith in bargaining
is amply demonstrated by their intransigence, their nu-
merous unilateral changes to the terms and conditions of
employment, their ad hoc promulgation of new rules,
their use of those rules to justify the termination of a un-
ion supporter, and their repeated refusal to provide the
Union with presumptively relevant information. We find
it appropriate to order the Respondents to reimburse the
Union for the bargaining expenses it incurred as it pur-
sued bargaining in the face of the Respondents’ willful
defiance of the Act. That the Union ultimately was able
to achieve a collective-bargaining agreement does not
defeat its entitlement. See Whitesell Corp., 357 NLRB
No. 97, slip op. at 5 (2011) (awarding bargaining ex-
penses even though some agreements were reached be-
cause the employer’s bad faith reduced bargaining to a
sham and wasted the union’s time and resources). It
must be provided with relief from the “economic conse-
quences stemming from the [Respondents’] recalci-
trance” in bargaining, otherwise the Respondents “will
have succeeded in using unlawful conduct to compro-
mise the Union’s economic strength at the bargaining
table.” Id.
Compounding its other unlawful conduct, the Re-
spondents also barred union officials Mori and Carmelita
ent authority to protect the integrity of its proceedings. We note, how-
ever, that Congress did not expressly authorize notice mailing or post-
ing, orders to unions and employers alike to engage in bargaining,
granting of access rights, or indeed many of the other remedies we
order as part of our mandate under Sec. 10(c) to effectuate the policies
of the Act. The very language of the Act is expansive in this regard,
authorizing “affirmative action including reinstatement of employees
with or without backpay.” Sec. 10(c) (emphasis added).
Labtingao from entering the facility, in violation of an
access agreement with the Union.19 This unfair labor
practice, alone or in conjunction with other unlawful
conduct, may have required the Union to incur additional
expenses to effectively communicate with bargaining-
unit employees for representational purposes or to main-
tain support and cohesion in the face of the Respondents’
violations when, because of that misconduct, the Union
was unable to fully respond to members’ needs. We be-
lieve that it is appropriate to require the Respondents to
reimburse the Union for those additional expenses, in
light of the Respondents’ pattern of willful misconduct in
seeking to undermine the Union’s status as certified bar-
gaining representative of the unit employees. Like the
bargaining expenses in Teamsters Local 122, supra at
1195, these expenses reflect the “direct causal relation-
ship” between the Respondents’ actions and the Union’s
losses. They may include, but are not limited to, addi-
tional costs in communicating with unit members, hold-
ing meetings offsite due to the Respondents’ unlawful
refusal to allow union agents on their property, and other
related expenses incurred as a result of the Respondents’
unlawful conduct. To guard against a speculative reme-
dy, we will require the Union to provide detailed evi-
dence of such expenditures at the compliance proceed-
ing, along with evidence showing that they resulted from
the Respondents’ unfair labor practices and why they
would not otherwise have been incurred.20 For expenses
that the Union would normally have incurred, but which
were heightened because of circumstances stemming
from the Respondents’ conduct, we shall award the Un-
ion only the amount over and above its normal expendi-
tures.
3. Posting and mailing of the notice, Board Decision,
and Explanation of Rights
The judge ordered the Respondents to post a standard
notice in their facility and to distribute it electronically if
the Respondents customarily communicate with their
employees in that manner. These are standard remedies.
J. Picini Flooring, 356 NLRB 11, 12 (2010). We agree
and attach an amended notice as Appendix A to this De-
cision and Order.
However, we find that an additional document—
specifically, an Explanation of Rights—is warranted here
19 In this respect, we disagree with our colleague Member Johnson’s
view that remedying the contractually agreed-to access for the Union’s
representatives is less warranted than a refusal to bargain. Although the
Act does not require union access, it does require employers and unions
alike to bargain in good faith and adhere to those bargained-for terms.
20 We believe such requirements address Member Johnson’s con-
cerns in his separate opinion that expenses incurred by the Union are
speculative.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
in order to fully inform employees, supervisors, and
managers of the employees’ rights under the Act. Such a
document will help to undo the likely impact of the vio-
lations on employees and help remedy the chilling effect
of the Respondents’ conduct. This is especially true
when, as here, the rights of so many employees have
been broadly suppressed for an extended period of time
and in numerous ways. The Explanation of Rights,
which is attached as Appendix B to this Decision and
Order, will be provided by the Regional Director for Re-
gion 20. In addition to the language in our standard no-
tice, the Explanation of Rights sets out the employees’
core rights under the Act, coupled with clear general ex-
amples that are specifically relevant to the unfair labor
practices found in this case.21
We also find that both the standard notice and the Ex-
planation of Rights should be posted for a period suffi-
ciently long to serve their purposes adequately in the
context of this case. In prior cases, we have been asked
to order notice posting beyond the standard 60 days but
have declined to do so, given the facts of those cases.
Here, however, we find a longer period is essential to
achieve the goals of the notice-posting remedy. In our
view, a 3-year period will better help mitigate what the
Fifth Circuit has called the chilling “lore of the shop.”
Bandag, Inc. v. NLRB, 583 F.2d 765, 772 (5th Cir. 1978).
Like threats of plant closure and coercion during an
election, the Respondents’ unfair labor practices have
been so pervasive that they likely live on in employees’
memories and could continue to erode employees’ will-
ingness to exercise their rights years after the actual vio-
lations. See ADB Utility Contractors, 355 NLRB 1020,
1021 (2010); California Gas Transport, 347 NLRB
1314, 1326 (2006), enfd. 507 F.3d 847 (5th Cir. 2007).
This is so even for employees who were not direct targets
of the unfair labor practices but who hear of them from
their coworkers and fall victim to a “legacy of coercion”
that limits their own willingness to exercise their rights,
even after the originally-targeted employees have depart-
ed. Garvey Marine, 328 NLRB 991, 996 (1999), enfd.
245 F.3d 819, 827–828 (D.C. Cir. 2001). When new
hires learn of the employer’s prior unlawful activity, par-
ticularly in cases involving a discriminatory discharge,
they are likely to conclude that they are no less expenda-
ble than their predecessors. See, e.g., Intersweet, 321
21 The Board’s recent rule requiring all employers subject to the Act
to post a notice of statutory rights has been enjoined by two Federal
appellate courts. See Chamber of Commerce v. NLRB, 721 F.3d 152
(4th Cir. 2013); and National Assn. of Mfgs. v. NLRB, 717 F.3d 947
(D.C. Cir. 2013). That rule did not (as we do here) require a posting
solely as a remedy for unfair labor practices. Because the rule has been
enjoined, the remedial Explanation of Rights is not superfluous.
NLRB 1, 19 (1996), enfd. 125 F.3d 1064, 1070 (7th Cir.
1997). As in those cases, the Respondents have sent a
clear message that not only will they refuse to abide by
the law, but they will take adverse action against those
employees who exercise their rights. It is difficult to
believe that the impression made by the Respondents’
unlawful conduct over a period of years will dissipate in
a matter of 60 days. Extended posting also serves as a
constant reminder of the Respondents’ obligation to
abide by the Act, thus helping to change its workplace
culture while also ensuring that supervisors and manag-
ers are aware of their own responsibilities to adhere to
the law and understand what rights the Act protects.
For these reasons, and based on the facts of this case,
we shall require the Respondents to post the notice and
the Explanation of Rights in its Honolulu, Hawaii facili-
ty22 for a period of 3 consecutive years in order to pro-
vide employees with the information they need to under-
stand their rights and be assured that those rights are tak-
en seriously and enforced.23
Both the notice and the Explanation of Rights shall al-
so be given to all new employees and all new supervisors
and managers, upon hire, for a period of 3 years. Both
documents shall also be mailed to the homes of all cur-
rent employees, supervisors, and managers, and all for-
mer employees employed by the Respondents at any time
since November 24, 2009 (the date of the first unfair
labor practice in this proceeding). Such mailings shall
take place within 14 days from the date of the Board’s
Order. Notice mailing is a well-established part of the
Board’s remedial repertoire when traditional posting is
insufficient to dissipate the effects of the unfair labor
practices. See, e.g., Sambo’s Restaurant, Inc., 247
NLRB 777, 778 fn. 6 (1980), enfd. 641 F.2d. 794 (9th
Cir. 1981) (enforcing Board’s remedies after employer
failed to file motion for reconsideration to Board); J. P.
Stevens & Co., Inc., 157 NLRB 869, 878 (1966), enfd.
22 Pursuant to the Board’s standard remedial language, the Respond-
ents are also ordered to post both the notice and Explanation of Rights
on their intranet and any other electronic message area, including email,
where they generally communicate with employees.
23 This 3-year period is particular to the facts of this case and does
not foreclose the possibility of a longer or shorter duration in other
cases as may be appropriate. Notably, the Equal Employment Oppor-
tunity Commission frequently includes extended postings as part of its
settlement decrees, some of which require the employer to post a reme-
dial notice for 2, 3, or 4 years, depending on the facts of the case and
the nature of the allegations. See Equal Employment Opportunity
Commission, “E-Race: Significant EEOC Race/Color Cases,”
http://www.eeoc.gov/eeoc/initiatives/e-race/caselist.cfm (last visited
October 10, 2014). As this practice persuasively demonstrates, certain
offenses may be so severe and pervasive, and do such damage to the
employees’ protected rights, that a longer posting period may be neces-
sary to adequately remedy the harm by alerting employees as to the
alleged violations and reassuring them of their legal rights.

HTH CORP. 715
380 F.2d 292 (2d Cir. 1967), cert. denied 389 U.S. 1005
(1967). Although we order an extended posting remedy,
the additional mailing is necessary on the facts of this
case. As in other notice-mailing cases, the Respondents’
violations were unquestionably deliberate, targeted, and
egregious, designed to frustrate the exercise of Section 7
rights and undermine the Union’s effectiveness. Mail-
ings will reach individuals who would not otherwise see
the posting but who were affected by the Respondents’
unlawful conduct, such as the Respondents’ former em-
ployees who lack access to the Respondents’ facility.
Through these documents, supervisors, and managers
will receive additional, direct instruction as to their re-
sponsibilities under the Act. Such instruction is clearly
necessary, in light of (1) their significant involvement in
the Respondents’ unfair labor practices, such as the uni-
lateral increase in housekeeping work assignments, the
ad hoc promulgation of new rules used to justify the dis-
charge of Villanueva, and the removal of union agents
from the facility; and (2) the culture of union animus that
the Respondents facilitated and encouraged over the past
decade.24 Current and newly-hired employees, as well as
supervisors and managers, will be afforded the oppor-
tunity to privately review the documents free from the
Respondents’ potential scrutiny for as long as necessary
to understand their contents and as often as necessary to
reinforce their rights in the future. Providing employees
with this information creates an immediate assurance of a
workplace culture in which their rights will be respected,
and encourages an expectation of compliance with the
Act.
The Respondents are further ordered to provide and
mail a copy of our Decision and Order in this case to new
and current employees, supervisors, and managers for the
3-year period in order to promote an understanding of
and compliance with the Act. The Decision and Order
builds on the notice and the Explanation of Rights by not
only detailing the nature of the Respondents’ violations,
but also explaining the employees’ statutory rights, the
legal processes under the Act, and the ways in which
employees’ rights ultimately were enforced. Mailing of
the Decision and Order shall take place no later than 21
days and no earlier than 14 days from the date of the
Board’s Order.25 The mailing shall also include a cover
24 The Board has for similar reasons previously required such direct
instruction of supervisors as a remedy for an employer’s flagrant mis-
conduct. See, e.g., J. P. Stevens & Co., 245 NLRB 198, 199 (1979),
enfd. in relevant part 638 F.2d 676 (4th Cir. 1980); S. E. Nichols, Inc.,
284 NLRB 556 (1987), enfd. in part 862 F.2d 952 (2d Cir. 1988), cert.
denied 490 U.S. 1108 (1989).
25 As discussed below, we will also require the Respondents to give
copies of the notice and Explanation of Rights to supervisors and man-
agers at the time of the reading.
letter provided by the Regional Director for Region 20,
attached as Appendix C to this Decision and Order,
which explains that the Decision and Order is being
mailed pursuant to the Board’s Order and which refer-
ences the notice and the Explanation of Rights previously
mailed to employees.
The Respondents shall retain a copy of the notice and
the Explanation of Rights provided to each individual in
their personnel records for the 3-year period, along with
receipts, proofs of mailing, and documentation evidenc-
ing the date and manner of distribution.
4. General publication of notice and explanation
of rights
We further order the Respondents to publish the notice
and the Explanation of Rights in English in two local
publications of broad circulation and local appeal twice a
week for a period of 8 weeks. Such a publication remedy,
though not routinely used, has been found appropriate in
other egregious cases. See, e.g., Fieldcrest Cannon, 318
NLRB 470, 473 (1995), enfd. in relevant part 97 F.3d 65
(4th Cir. 1996); Three Sisters Sportswear Co., 312
NLRB 853, 854 (1993), enfd. mem. 55 F.3d 684 (D.C.
Cir. 1995), cert. denied 516 U.S. 1093 (1996). “[W]here
the violations are flagrant and repeated, the publication
order has the salutary effect of neutralizing the frustrat-
ing effects of persistent illegal activity by letting in ‘a
warming wind of information and, more important, reas-
surance.’” NLRB v. Union Nacional de Trabajadores,
540 F.2d 1, 12 (1st Cir. 1976) (quoting J. P. Stevens Co.
v. NLRB, 417 F.2d 533, 538–540 (4th Cir. 1972)), cert.
denied 429 U.S. 1039 (1977). The publications shall be
chosen by the Regional Director for Region 20 and need
not be limited to newspapers as long as they will achieve
broad coverage of the area. In this way, the notice and
the Explanation of Rights will better reach all those af-
fected by the Respondents’ unfair labor practices, partic-
ularly former employees for whom the Respondents do
not have current mailing information, as well as future
employees in the Honolulu hospitality industry. See
Electrical Workers Local 3 (Northern Telecom), 265
NLRB 213, 219 (1982), enfd. 730 F.2d 870, 880–881 (2d
Cir. 1984) (citing cases); Haddon House Food Products,
242 NLRB 1057, 1060 (1979), enfd. in relevant part sub
nom. Teamsters Local 115 v. NLRB, 640 F.2d 392 (D.C.
Cir. 1981), cert. denied 454 U.S. 827 (1981), and cert.
denied sub nom. Haddon House Food Products, Inc. v.
NLRB, 454 U.S. 837 (1981).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
5. Attendance of supervisors and managers at the
notice reading
Supervisors are the direct contact points between em-
ployees and management, and it is necessary here to craft
a remedy that takes into account the role supervisors
have in an employer’s compliance with the Act. In this
case, as discussed above, the Respondents’ director of
housekeeping, housekeeping manager, and housekeeping
supervisor were directly involved in the unilateral in-
crease in housekeeping work assignments and/or the ad
hoc promulgation of new rules used to justify the dis-
charge of Villanueva. The assistant manager for restau-
rant operations was involved in the removal of union
agents from the facility. It is appropriate, then, to require
supervisors and managers to attend a reading of the no-
tice and the Explanation of Rights. See McAllister Tow-
ing & Transportation Co., 341 NLRB 394, 400 (2004),
enfd. mem. 156 Fed. Appx. 386 (2d Cir. 2005); Three
Sisters Sportswear Co., 312 NLRB at 853. Not only
does this convey a message to the employees that their
supervisors are just as responsible as upper management
for adhering to the law, it also exposes the supervisors to
information concerning their own substantive obligations
under the Act. See Domsey Trading Corp., 310 NLRB
777, 780 (1993), enfd. 16 F.3d 517 (2d Cir. 1994) (re-
quiring manager who had committed unfair labor prac-
tices to be present when notice is read to employees).
We therefore amend the judge’s remedy to require all
employees, supervisors, and managers to attend a public
reading of the notice and the Explanation of Rights.26
The reading shall be held in the presence of a Board
agent. The notice and Explanation of Rights shall be
read by Regional Vice President Robert Minicola (or his
successor) or, at the Respondents’ option, by the Board
agent in the presence of Minicola (or his successor),
CEO Corine Watanabe, or President John Hayashi.27 We
26 For purposes of this remedy, we include within the meaning of su-
pervisors and managers all individuals who oversee bargaining unit
employees in any capacity or who serve other managerial roles, not
only those who qualify as statutory supervisors under the Act.
27 In accordance with the Board’s standard remedial practice, we
amend the judge’s remedy to allow the Respondents the option of hav-
ing a Board agent read the notice to the assembled individuals in lieu of
Minicola. We will, however, order Minicola to sign the attached notice
because of his high position and prominent role in the Respondents’
unfair labor practices.
In light of the size of the Respondents’ work force and our decision
to require broad attendance, we will allow the Respondents to hold
several meetings during which the notice and Explanation of Rights
will be read. To guard against the risk that all or most supervisors and
managers will attend a single session, thereby undermining the message
for employees attending another session that all levels of management
appreciate and respect their rights, we shall require at least two supervi-
sors/managers and at least one of the Respondents’ three central man-
agement representatives—Watanabe, Hayashi, or Minicola—to be
will also order the Respondents to grant the Union,
through the Regional Director, reasonable notice and
opportunity to have a representative present when the
notice and the Explanation of Rights are read to employ-
ees.28 See Texas Super Foods, 303 NLRB 209, 209, 220
(1991) (adopting remedy). Translation shall be made
available for any individual whose language of fluency is
other than English. The Respondents are ordered to
maintain sign-in sheets for supervisors and managers at
the public readings, give them copies of the notice and
the Explanation of Rights at the time of the reading, and
maintain receipts. These documents will be made avail-
able to the Board’s duly-authorized representatives for
compliance purposes as set forth in this Amended Reme-
dy and Order.
6. Rescission of unlawful unilateral changes
The standard affirmative remedy for unlawful unilat-
eral changes to the terms and conditions of employment
is immediate rescission of the offending changes to the
status quo ex ante. Goya Foods of Florida, 356 NLRB
1461, 1462 (2011). As found by the judge, the Respond-
ents here unilaterally increased housekeeping assign-
ments in both the Beach and Ocean Towers of the hotel
and ceased matching 401(k) contributions. We order
them to rescind these unlawful unilateral changes and to
make unit employees whole for any loss of earnings and
other benefits attributable to this unlawful conduct. The
make-whole remedy shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). Addi-
tionally, having found that the Respondents violated Sec-
tion 8(a)(5) and (1) by ceasing to make contributions to
employees’ 401(k) plans from January to May 2010, we
shall order the Respondents to make such contributions,
including any additional amounts due the plan in accord-
ance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979), and to make whole the unit employees
for any loss of interest they may have suffered as a result
of the failure to make such payments.29 We shall also
present at each reading. Each of these three managers must attend at
least one meeting.
28 The Union here is a representative of the unit employees under
Sec. 9(a) of the Act, further justifying its presence at the reading.
29 To the extent that an employee has made personal contributions to
the 401(k) savings plan that have been accepted by the plan in lieu of
the Respondents’ delinquent contributions during the period of the
delinquency, the Respondents will reimburse the employee, but the
amount of such reimbursement will constitute a set-off to the amount
that the Respondents otherwise owe the fund. See, e.g., Capital Iron

HTH CORP. 717
order the Respondents to reimburse unit employees for
any expenses ensuing from the Respondents’ failure to
make the contractually-required contributions, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891, 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra. We
emphasize, however, that these remedies do not diminish
any contractual rights secured by the Union in bargain-
ing.
7. Access for union representatives
We will order the Respondents to rescind any rule or
practice limiting the Union’s access to its property at
variance with its past practice or prior agreements with
the Union and notify union agents Mori and Labtingao or
their successors, both orally and in writing, that they are
no longer barred and that the Respondents will not deny
union representatives access at variance with past prac-
tice or the terms of the existing collective-bargaining
agreement.
The violation that we remedy occurred in 2010. We
take administrative notice of the fact that the Respond-
ents and the Union reached a collective-bargaining
agreement in January 2013. Therefore, so as not to dis-
turb or diminish contractual rights secured by the Union
in subsequent collective bargaining, our restoration of the
access rights that were based on the parties’ agreements
in existence prior to the violations we find today shall be
implemented only upon the request of the Union.30
8. Visitation
As stated above, we have ordered the Respondents to
post the notice and the Explanation of Rights and mail
copies of those documents, as well as the Board’s Deci-
sion and Order, to all new employees, and new supervi-
sors and managers for a period of 3 years. We deem it
both necessary and appropriate to take measures to en-
sure that our Order is fully carried out during that period.
The Board has considered visitation provisions to en-
sure compliance with its Orders. See, e.g., Hilton Inn
North, 279 NLRB 45 (1986), enfd. 817 F.2d 391 (6th
Cir. 1987); Cherokee Marine Terminal, 287 NLRB 1080
(1988); 299 Lincoln Street, 292 NLRB 172, 175 (1988);
El Mundo Corp., 301 NLRB 351 (1991). Although the
Board has rejected so-called standard visitation clauses,
it has granted visitation on a case-by-case basis “when
Works Co., 355 NLRB No. 138 (2010) (not reported in Board volumes)
(incorporating by reference 355 NLRB 127, 129 fn. 4 (2010)).
30 This case did not involve a question of whether or under what cir-
cumstances the Act might permit the Union to enter the Respondents’
facility in the absence of the parties’ past practice or agreement.
the equities demonstrate a likelihood that a respondent
will fail to cooperate or otherwise attempt to evade com-
pliance” and “it appears possible that the respondent may
not cooperate in providing relevant evidence unless giv-
en specific, sanction-backed directions to do so.” Chero-
kee Marine Terminal, supra at 1083 fn. 14; see also 299
Lincoln Street, supra at 175 (narrow visitation clause
warranted).
As the Board did in 299 Lincoln Street and El Mundo
Corp., above, we refrain from issuing a broad visitation
clause like that at issue in Cherokee Marine, but find a
narrowly-tailored one appropriate here. Under our Or-
der, a duly-appointed Board agent may enter the Re-
spondents’ facility for a period of 3 years, at reasonable
times and in a manner not to unduly interfere with the
Respondents’ operations, for the limited purpose of de-
termining whether the Respondents are in compliance
with our posting, distribution, and mailing requirements.
The Respondents must maintain and make available for
inspection proofs of mailings, receipts, and sign-in sheets
as discussed in connection with the notice-reading, mail-
ing, and in-person delivery obligations ordered herein.
In making this determination, we are mindful of the
facts that make visitation especially appropriate and the
specific advantages of that remedy here. See Hilton Inn
North, supra. As indicated, visitation will help to ensure
continuous compliance with our Order throughout the
entire 3-year period. It will further relieve employees of
the onus of a watchdog role with respect to the Respond-
ents’ compliance, a factor we find particularly important
in reducing the risk of retaliation against them and in
restoring their confidence in their statutory rights. To the
extent that the Respondents experience management
turnover or operational changes, regular monitoring by a
Board agent will also help ensure compliance throughout
that period.
We have tailored the clause to meet our compliance
goals. First, our 3-year time limit directly corresponds
with the 3-year requirements concerning posting of the
notice and the Explanation of Rights. Second, the lim-
ited purpose of the visitation is clearly defined in relation
to specific remedies requiring ongoing monitoring, rather
than general compliance or a search for possible future
violations. Third, the Order language specifically de-
fines third parties included in its scope to cover the Re-
spondents, their officers, agents, successors, or assigns,
their employees, or their former employees having
knowledge concerning the posting and maintenance of
the notice and the Explanation of Rights in the manner
and for the time required. See Cherokee Marine Termi-
nal, supra at 1081–1082.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
9. Remedies for discriminatee Villanueva
The Respondents have twice unlawfully terminated
employee Rhandy Villanueva for his protected activity.
We adopt the judge’s recommended remedies of rein-
statement and make-whole relief for any loss of earnings
and other benefits that Villanueva may have suffered as a
result of the discrimination against him.31 Reinstatement
of union supporters has long been recognized as a way to
vindicate employees’ statutory right to organize in the
workplace. See, e.g., Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 195 (1941). It serves important—indeed,
unique—statutory policies. Without reinstatement, the
extended absence of discharged union supporters leaves
the remaining employees without the leadership of active
coworkers and demonstrates that the employer’s unlaw-
ful conduct cannot be redressed.
Nevertheless, and without any intent to undermine the
effectiveness of reinstatement as the typical remedy for
an unlawful discharge, we believe that the facts of this
case raise a serious question as to whether reinstatement
adequately serves to make Villanueva whole. The hard-
ships Villanueva faces as a result of the Respondents’
unlawful conduct may continue should he accept rein-
statement. In certain circumstances, a remedy of rein-
statement forces employees to either return to their for-
mer workplace and face the likelihood of further hostili-
ty, retaliation, illegal discrimination, and possible loss of
employment, or forego their right to reinstatement to
avoid these anticipated consequences and be subjected to
further economic loss. Evidence suggests that victims of
unlawful employer conduct who choose reinstatement
have faced considerable challenges and often do not re-
main long at their jobs.32 Reinstatees who were the sub-
ject of targeted unfair labor practices are subject to con-
siderable risk of retaliation from their employers, as well
as tension with their coworkers, fears that have deterred
many from accepting reinstatement when offered.33 The
31 We recognize that Villanueva likely faces additional challenges in
obtaining other employment and mitigating his backpay in light of his
repeat discharges. Given the particular circumstances of this case, we
will look skeptically on any claim by the Respondents in compliance
that Villanueva has failed to mitigate damages. Contrary to Member
Miscimarra’s contention, we are not prejudging any future mitigation of
damages claim here. We simply note that any such claim must neces-
sarily be weighed against the Respondents’ repeated discrimination and
consequent damage to Villanueva’s employment prospects.
32 See, e.g., West, The Case Against Reinstatement in Wrongful Dis-
charge, 1988 U. Ill. L. Rev. 1, 29–31 and fns. 138–141 (1998); Chaney,
The Reinstatement Remedy Revisited, 32 Lab. L. J. 357, 359–361
(1981).
33 See, e.g., Summers, Effective Remedies for Employment Rights:
Preliminary Guidelines & Proposals, 141 U. Pa. L. Rev. 457, 477–478
(1992); Weiler, Promises to Keep: Securing Workers’ Rights To Self-
Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1791 (1983).
record in this case suggests an even greater likelihood of
such risks. The Respondents have demonstrated signifi-
cant hostility toward Villanueva’s continued employ-
ment. His earlier reinstatement only led to more targeted
unfair labor practices by the Respondents, including har-
assment, retaliation, unlawful discipline and job loss.
The extended litigation in this and previous cases does
not bode well for an improved relationship.
Recognizing these problems, Federal employment law,
as interpreted by the courts and by administrative agen-
cies, offers the option of front pay in lieu of reinstate-
ment in appropriate cases. This remedy is recognized
under many Federal antidiscrimination statutes, including
Title VII of the Civil Rights Act of 1964, which has re-
medial provisions modeled on our Act. See, e.g., Pollard
v. E. I. du Pont de Nemours & Co., 532 U.S. 843, 848–
851 (2001). The Supreme Court carefully examined the
nature of front pay and the statutory basis for such an
award under Title VII in Pollard, holding that front pay
is “not an element of compensatory damages” and is
therefore not subject to the statutory cap on those types
of damages. Id. at 848. Rather, the Court explained,
“front pay is simply money awarded for lost compensa-
tion during the period between judgment and reinstate-
ment or in lieu of reinstatement.” Id. at 846. In reaching
its conclusion, the Court observed that the remedial pro-
visions of Title VII “closely tracked the language of Sec-
tion 10(c) of the National Labor Relations Act, which
similarly authorized orders requiring employers to take
appropriate, remedial ‘affirmative action.’” Id. at 848–
849 (citations omitted). Indeed, repeatedly invoking the
Act, it found that the interpretation of Section 10(c)
served as “guidance as to the proper meaning” of Title
VII’s provisions. Id. at 849. The Court’s decision makes
clear that an award of front pay in lieu of reinstatement is
an affirmative make-whole remedy under Title VII’s
remedial provision—a provision that echoes the language
of the Act. Id. at 853. See also Albemarle Paper Co. v.
Moody, 422 U.S. 405, 419–421 (1975) (linking the
make-whole purpose of Title VII’s remedies to its use of
the Act as a model and noting the Act’s goal to make
workers whole for losses suffered due to unfair labor
practices).
As explained, Section 10(c) instructs us to issue an or-
der requiring a party that engaged in an unfair labor prac-
tice to “take such affirmative action . . . as will effectuate
the policies of th[e] Act.” The Supreme Court has long
recognized that our remedial power “is a broad discre-
tionary one.” NLRB v. Seven-Up Bottling Co. of Miami,
344 U.S. 344, 346 (1953); NLRB v. J. H. Rutter-Rex Mfg.
Co., 396 U.S. 258, 262–263 (1969) (internal quotation
and citation omitted). As the Court has explained, “[t]he

HTH CORP. 719
Act does not create rights for individuals which must be
vindicated according to a rigid scheme of remedies.”
Phelps Dodge Corp., supra at 194. Rather, remedies
“must be functions of the purposes to be accomplished”
and must “heed ‘the importance of taking fair account, in
a civilized legal system, of every socially desirable factor
in the final judgment.’” Seven-Up Bottling Co., supra at
346 (quoting Phelps Dodge Corp., supra at 198). Each
remedy should “be tailored to the unfair labor practice it
is intended to redress.” Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 900 (1984). Of course, our remedies may not
be punitive. Consolidated Edison Co. v. NLRB, 305 U.S.
197, 235 (1938). We therefore “adapt [our] remedies to
the needs of particular situations so that ‘the victims of
discrimination’ may be treated fairly” in ways that best
effectuate the purpose of the Act, provided they are not
purely punitive.34 Carpenters Local 60 v. NLRB, 365
U.S. 651, 655 (1961) (quoting Phelps Dodge Corp., su-
pra).
Although we emphasize that reinstatement is the pre-
ferred remedy for an unlawful discharge, the Supreme
Court’s decision in Pollard provides strong support for
concluding that an award of front pay reasonably serves a
make-whole purpose that falls squarely within the
Board’s remedial authority. The Act’s remedies closely
resemble those available under those statutes modeled,
directly or indirectly, on the Act, such as Title VII. It is
noteworthy that those statutes, like the Act, prohibit un-
lawful employment discrimination, including discrimina-
tory employment terminations, and they authorize the
formulation of effective remedies. And under those oth-
er statutes, as explained previously, the courts have
awarded front pay where circumstances warrant such an
award. In some cases, it has been found warranted when,
as here, there is evidence that the reinstatement would
not be readily feasible because of extreme hostility or
antagonism between the parties, psychological harm re-
sulting from the discrimination, or when the employer
has demonstrated aggressive behavior towards the former
employee.35 The advisable remedy in those cases may
34 The Supreme Court chose in Seven-Up Bottling Co. to avoid the
“bog of logomachy” surrounding the debate between remedial and
punitive measures, finding it “more profitable to stick closely to the
direction of the Act by considering what order does, as this does, and
what order does not, bear appropriate relation to the policies of the
Act.” Supra at 348.
35 See, e.g., Donlin v. Philips Lighting Co., 581 F.3d 73, 86 (3d Cir.
2009); Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56, 79
(2d Cir. 2004), vacated on other grounds sub nom. KAPL, Inc. v.
Meacham, 544 U.S. 957 (2005); Abuan v. Level 3 Communications,
Inc., 353 F.3d 1158, 1176–1177 (10th Cir. 2003); Brooks v. Woodline
Motor Freight, Inc., 852 F.2d 1061, 1066 (8th Cir. 1988); Spulak v. K-
Mart Corp., 894 F.2d 1150, 1157–1158 (10th Cir. 1990); Whittlesey v.
Union Carbide Corp., 742 F.2d 724, 729 (2d Cir. 1984).
be to allow the individual to move forward, away from
the workplace, to restore his or her state ex ante to the
violations. See, e.g., Pollard, supra at 846; Feldman v.
Philadelphia Housing Authority, 43 F.3d 823, 831–832
(3d Cir. 1994).
Nevertheless, the Board has never awarded front pay
in lieu of reinstatement to a victim of unlawful discrimi-
nation under the Act, nor has it addressed its statutory
authority to do so.36 And while this case presents cir-
cumstances that powerfully support an award of front
pay—an employee has been discharged unlawfully not
once, but twice, in the context of numerous other viola-
tions of the Act and instances of retaliation for union
activity37—we have decided to defer consideration of the
Board’s authority to award front pay and we shall not
include an award of front pay in this case.
Here, neither the General Counsel nor the Union has
asked us to consider front pay as an appropriate remedy
for Villanueva. Although today (as before) we have
granted remedies not requested by the General Counsel
or the Union, and we have devised enhanced remedies
building on established remedial tools, an award of front
pay would also require the Board to determine when cir-
cumstances warrant such an award, as well as the meth-
odology of its calculation. Neither of these determina-
tions is a simple matter, and both would need to be ex-
amined in detail and with care. There is no uniform test
for when front pay may be awarded under various em-
ployment antidiscrimination statutes, nor is there a stand-
ard method for how to calculate it.38 The critical deter-
minations of when and how to calculate such an award
are better made in the context of a future case or cases
where the necessary factual record has been fully devel-
oped and there has been appropriate briefing.39
36 We take notice of the fact that front pay is currently being includ-
ed in Board settlements at the election of the parties. See Memoran-
dum GC 13–02 (January 9, 2013).
37 These circumstances might be balanced against the facts that Vil-
lanueva is represented by the Union and that the Union has finally
achieved a collective-bargaining agreement.
38 Given the age and complexity of this case, it is particularly im-
portant to avoid the further delay inherent in severing the issue of front
pay and inviting either additional briefing or additional proceedings to
consider the propriety of a front pay award here.
39 We reject Member Miscimarra’s assertion that the Board is so
clearly prohibited from awarding front pay that we err in even contem-
plating it as a possibly viable remedy after due consideration in a future
case. Our colleague’s arguments are, at best, premature. As indicated
above, we readily recognize the primacy of reinstatement, but we also
recognize that certain factors may limit its effectiveness and cause
wronged employees to waive reinstatement, thereby depriving them of
any meaningful remedy, while rewarding particularly hostile employer
conduct. See, e.g., Summers, Effective Remedies For Employment
Rights: Preliminary Guidelines and Proposals, supra, 141 U. Pa. L.
Rev. at 477; West, The Case Against Reinstatement In Wrongful Dis-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
ORDER
The National Labor Relations Board orders that the
Respondents, HTH Corporation, Pacific Beach Corpora-
tion and Koa Management, a single employer, d/b/a Pa-
cific Beach Hotel, Honolulu, Hawaii, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, International Longshore and Warehouse Un-
ion, Local 142, as the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
All full-time, regular part-time, and regular on-call
concierge, concierge II, concierge II night auditor,
guest service agent I, guest service II, room control
clerk, bell help, bell sergeant, door attendant, head door
attendant, senior bell sergeant, working bell captain,
parking attendant, parking valet, FIT reservation clerk,
FIT reservation clerk I, FIT reservation clerk II, junior
reservation clerk, senior FIT reservation, senior reser-
vation clerk, housekeeper IA, housekeeping clerk, qual-
ity control, housekeeper IB, housekeeper II, house-
keeper III, laundry attendant I, seamstress, bushelp,
hosthelp, waithelp, banquet bus help, head banquet
captain, banquet captain, head banquet porter, assistant
head banquet porter, banquet porter, banquet wait help,
purchasing clerk, senior store keeper, butcher, cook I,
cook II, cook III, cook IV, pantry, pantry I, pantry II,
head buffet runner, buffet foodrunner, head steward,
utility steward, cafeteria server, Aloha Center attendant,
relief assistant manager (Oceanarium Restaurant), head
banquet bartender, banquet bartender, head bartender,
assistant head bartender, bartender, pastry cook I, pas-
try cook II, pastry cook III, food and beverage audit in-
charge, supra, 1988 U. Ill. L. Rev. at 30–31, fns. 144–150; Weiler,
Promises to Keep: Securing Workers’ Rights To Self-Organization
Under the National Labor Relations Act, supra, 96 Harv. L. Rev. at
1795. See also Office of the General Counsel, Memorandum GC 10–
07, p. 1 (Sept. 30, 2010) (“with the passage of time, the discharged
employees are likely to be unavailable for, or no longer desire, rein-
statement when ordered by the Board”). Indeed, statistics show that
most discriminatees work for the employers who initially discriminated
against them for only a short time following their reinstatement. See
Chaney, The Reinstatement Remedy Revisited, 32 Lab. L. J. at 359–361
(approximately 87 percent of reinstated employees left their offending
employers within less than 1 year, and 74 percent of those cited unfair
treatment as the reason for their departure); West, supra at 29–31, fns.
138–141 (1988) (30 percent of reinstated employees in a 1962-1964
study were working at their employer two years after reinstatement; 83
percent of reinstated employees in a 1971–1972 study left within 1 year
after reinstatement and only 11 percent remained after the end of 2
years). In light of these concerns, the broad language of the statute, and
our obligation to craft appropriate remedies tailored to the violations
found, we find that a discussion about the possibility of front pay is
entirely appropriate.
come, night auditor, data processing clerk, senior cost
control clerk, food and beverage cashier, network sup-
port specialist, diver level I, diver level II, diver level
III, diver level IV, PBX operator, lead operator,
maintenance 2nd, maintenance 1st, mechanic foreman,
assistant/general maintenance, maintenance trainee,
senior maintenance trainee, maintenance utility, assis-
tant gardener, assistant head gardener and gardener
employed by the Employer at the Pacific Beach Hotel,
located at 2490 Kalakaua Avenue, Honolulu, Hawaii,
but excluding the president, the corporate general man-
ager, corporate director of hotel operations, director of
human resources, director of finance, director of sales
and marcom (sic), director of revenue management, di-
rector of Far East Sales, director of food and beverage,
director of facilities management, Pacific Beach Hotel
director of front office services, director of IT, corpo-
rate controller, operations controller, financial control-
ler, head cashiers (food and beverage), executive
housekeeper, assistant executive housekeeper, restau-
rant managers, banquet managers, sous chefs, chief
steward/stewards managers, Aloha Coffee Shop Man-
ager, income auditor manager, sales administrative as-
sistant, PBC FE/concierge, chief engineer, landscaping
manager, and the accounts receivable manager, manag-
ers, assistant managers, administrative assistant to the
director of sales and marketing, purchasing agent em-
ployees, confidential employees, guards and/or watch-
persons and supervisors as defined in the Act.
(b) Unilaterally changing the terms and conditions of
employment of their unit employees during the course of
collective bargaining without the parties having reached
a lawful impasse, or at any time without first notifying
the Union and giving it an opportunity to bargain, includ-
ing but not limited to restricting the exercise of previous-
ly-existing access rights of union agents to the hotel
property, increasing housekeeping assignments in both
the Beach and the Ocean Towers, and the cessation of
matching 401(k) contributions.
(c) Refusing to bargain in good faith with the Union by
failing and refusing to furnish it with information the
Union has requested that is relevant and necessary to the
Union’s performance of its functions as the collective-
bargaining representative of the Respondents’ unit em-
ployees, including but not limited to 401(k) plans and
employees who participated in the plans, grievances and
discipline, and related documents, work schedules and
assignments, awards, benefits, financial data, and other
terms and conditions of employment.
(d) Warning, suspending, or discharging employees,
including but not limited to Rhandy Villanueva, for sup-

HTH CORP. 721
porting the Union, or any other labor organization, or
because they engage in protected concerted activities.
(e) Placing employees under surveillance while they
engage in union activities or other protected concerted
activities.
(f) Denying union representatives access to the Re-
spondents’ facility at variance with past practice or the
terms of collective-bargaining agreements.
(g) Undermining the Union by telling employees that
union agents are barred from entering the facility.
(h) Threatening union agents with removal from the
public sidewalk for passing out union literature or other
protected concerted activity.
(i) Intimidating union agents regarding lawful leaflet-
ing.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, publish
in two publications of general local interest and circula-
tion copies of the attached notice, signed by the Re-
spondents’ regional vice president of operations, Robert
Minicola, or his successor, and the Explanation of
Rights. Such notice and Explanation of Rights shall be
published twice weekly for a period of 8 weeks. The
publications shall be determined by the Regional Direc-
tor for Region 20, and need not be limited to newspapers
so long as they will achieve broad coverage of the area.
(b) Within 14 days from the date of this Order, mail a
copy of the attached notice and the Explanation of Rights
to the homes of all current employees, supervisors, and
managers, and all former employees employed by the
Respondents at any time since November 24, 2009. The
Respondents shall maintain proofs of mailings as set
forth in the Amended Remedy section of this Decision.
(c) No later than 21 days and no earlier than 14 days
from the date of this Order, mail a copy of this Decision
and Order to all current employees, supervisors, and
managers, and all former employees employed by the
Respondents at any time since November 24, 2009; and
within 7 days from the date of hiring, mail a copy of this
Decision and Order to all newly hired employees, super-
visors, and managers. Mailings shall be sent to new em-
ployees for a period of 3 consecutive years from the date
of this Order. The mailing shall include a copy of a cov-
er letter, provided by the Regional Director for Region
20 and attached to this Decision and Order as Appendix
C, explaining that the Decision and Order are being
mailed pursuant to the Board’s Order and referencing the
notice and the Explanation of Rights previously mailed.
The Respondents shall maintain proofs of mailings as set
forth in the Amended Remedy section of this Decision.
(d) For a period of 3 consecutive years from the date of
this Order, provide a copy of the notice and the Explana-
tion of Rights on forms provided by the Regional Direc-
tor for Region 20 to all new employees, supervisors, and
managers within 7 days from the date on which their
employment by the Respondents commences. The Re-
spondents shall retain a copy of the notice and the Expla-
nation of Rights provided to each individual in their rec-
ords for the 3-year period, along with receipts and docu-
mentation evidencing the date and manner of their distri-
bution as set forth in the Amended Remedy section of
this Decision.
(e) Within 14 days after service by the Region, post at
its hotel in Honolulu, Hawaii copies of the attached no-
tice and the Explanation of Rights, marked “Appendix
A” and “Appendix B.”40 Copies of the notice and the
Explanation of Rights, on forms provided by the Region-
al Director for Region 20, shall be posted and maintained
for a period of 3 consecutive years in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, both the notice and the Explanation of Rights
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondents customarily communi-
cate with their employees by such means. The notice
and the Explanation of Rights shall not be altered, de-
faced, or covered by any other material. If those docu-
ments are so altered, defaced, or covered, the Respond-
ents shall promptly notify the Region and obtain new
copies at their own expense.
(f) Within 14 days from the date of this Order, convene
meetings at their Honolulu, Hawaii hotel during working
time, scheduled to ensure the widest possible attendance,
at which the attached notice and Explanation of Rights
are to be read to all employees, supervisors, and manag-
ers. The meetings shall be held in the presence of a
Board agent, and the notice and Explanation of Rights
shall be read by Robert Minicola (or his successor) or, at
the Respondents’ option, by the Board agent in the pres-
ence of Minicola (or his successor), Corine Watanabe, or
John Hayashi. At least one of these three individuals
(Minicola, Watanabe, Hayashi, or their successors) must
be in attendance at each reading, and each of the three
individuals must attend at least one reading. At least two
40 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
supervisors/managers must be present at each reading.
The Respondents shall maintain sign-in sheets for super-
visors and managers at the readings, give them copies of
the notice and the Explanation of Rights at the time of
the reading, and maintain receipts as set forth in the
Amended Remedy section of this Decision. The Re-
spondents shall also afford the Union, through the Re-
gional Director, reasonable notice and opportunity to
have a representative present when the notice and the
Explanation of Rights are read to employees. Transla-
tion shall be made available for any individual whose
language of fluency is other than English. The meetings
shall be for the above-stated purpose only. Individuals
unable to attend the meeting to which they have been
assigned will be able to attend a subsequent meeting dur-
ing which the same reading shall take place under the
same conditions. The Respondents shall allow all em-
ployees to attend these meetings without penalty or ad-
verse employment consequences, either financial or oth-
erwise.
(g) Give notice to and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the unit before implementing
any changes to terms and conditions of employment that
are not contained in the collective-bargaining agreement,
including but not limited to access to the Respondents’
property by union agents, payments to employees’
401(k) plans, and changed or increased room assign-
ments for housekeeping employees. For any term and
condition of employment contained in the collective-
bargaining agreement, obtain the Union’s consent before
implementing changes to any such term.
(h) Rescind any unilateral change limiting the Union’s
access to hotel property that is at variance with past prac-
tice or the parties’ agreements, and notify union agents
Mori and Labtingao, both orally and in writing, that they
are no longer barred, and that the Respondents will not
deny union representatives access at variance with past
practice or the parties’ agreements. Nothing in the Or-
der shall diminish or enlarge the contractual rights se-
cured by the Union in subsequent negotiations with the
Respondents.
(i) Within 14 days from the date of this Order, rescind
the unlawful unilateral changes in the terms and condi-
tions of employment found in the judge’s decision as
amended in this Decision, including but not limited to the
increase in housekeeping assignments in both the Beach
and the Ocean Towers and the cessation of matching
401(k) contributions. Nothing in this Order shall dimin-
ish or enlarge any contractual rights secured by the Un-
ion in subsequent negotiations with the Respondents.
(j) Make Rhandy Villanueva whole for any loss of
earnings and other benefits suffered as a result of the
Respondents’ discrimination against him, in the manner
set forth in the remedy section of the judge’s decision as
amended in this Decision.
(k) Make all affected unit employees, including Maris-
sa Julian, and former unit employees whole for any loss
of earnings and other benefits suffered as a result of the
Respondents’ unlawful unilateral change in housekeep-
ing room assignments, in the manner set forth in the
Amended Remedy section of this Decision.
(l) Compensate all affected unit employees and former
unit employees for the adverse tax consequences, if any,
of receiving lump-sum backpay awards, and file a report
with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters for
each unit employee.
(m) Reimburse all affected unit employees and former
unit employees for matching contributions to their 401(k)
plans for the period January 1, 2010, to May 1, 2010, in
the manner set forth in the Amended Remedy section of
this Decision.
(n) Within 14 days from the date of this Order, offer
Rhandy Villanueva full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(o) Furnish to the Union in a timely manner all infor-
mation requested by the Union in November 2009 and in
April, May, June, July, and August 2010, including but
not limited to full data regarding the hotel’s financial
state as set forth in the judge’s decision.
(p) Pay to the General Counsel the costs and expenses
incurred by him in the investigation, preparation, presen-
tation, and conduct of this proceeding before the Board,
including reasonable counsel fees, salaries, witness fees,
transcript and record costs, printing costs, travel expens-
es and per diems, and other reasonable costs and expens-
es, in an amount to be determined at the compliance
stage of this proceeding.
(q) Pay to the Union the costs and expenses incurred
by it in the investigation, preparation, presentation, and
conduct of this proceeding before the Board, including
reasonable counsel fees, salaries, witness fees, transcript
and record costs, printing costs, travel expenses and per
diems, and other reasonable costs and expenses, in an
amount to be determined at the compliance stage of this
proceeding.
(r) Reimburse the Union for its costs and expenses in-
curred in collective bargaining for all negotiations stem-
ming from the violations found in this Decision, includ-
ing, for example, reasonable salaries, travel expenses,
HTH CORP. 723
and per diems, in the manner set forth in the amended
remedy section of this decision.
(s) Pay to the Union the nonlitigation, nonbargaining
expenses resulting from the Respondents’ unfair labor
practices in the manner set forth in the Amended Reme-
dy section of this Decision, in an amount to be deter-
mined at the compliance stage of this proceeding. Such
expenses may include, but are not limited to, additional
costs in communicating with unit members, holding
meetings off site due to the Respondents’ unlawful re-
fusal to allow union agents on their property, and main-
taining cohesion in the face of the Respondents’ viola-
tions when, because of that misconduct, the Union was
unable to fully respond to members’ needs. The Union is
required to provide evidence of such expenditures along
with evidence showing that they resulted from the Re-
spondents’ unfair labor practices over and above its nor-
mal expenditures.
(t) Within 14 days from the date of this Order, remove
from their files any references to the unlawful written
warning, suspension, and termination imposed on
Rhandy Villanueva, and within 3 days thereafter, notify
him in writing that this has been done and that the warn-
ing, suspension, and termination will not be used against
him in any way.
(u) Within 14 days from the date of this Order, remove
from their files any references to the unlawful discipline
imposed on Marissa Julian and any other employees in
connection with the Respondents’ unlawful increase in
housekeeping assignments, and within 3 days thereafter,
notify them in writing that this has been done and that
the discipline will not be used against them in any way.
(v) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable places desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(w) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of Corine Watanabe, John Hayashi, and Robert
Minicola, or their successors, on a form provided by the
Region, attesting to the steps that the Respondents have
taken to comply with this Order.
(x) For a 3-year period following the date of this Or-
der, allow the Board or any of its duly-authorized repre-
sentatives to obtain at any time, in both oral and docu-
mentary forms, discovery and evidence from the Re-
spondents, their officers, agents, successors or assigns,
and their employees or former employees having
knowledge concerning the posting and maintenance of
the notice and the Explanation of Rights as well as the
mailing of those documents and the Board’s Decision
and Order to all new employees and new supervisors and
managers as set forth in the Amended Remedy section of
this Decision in the manner and for the time required.
Such visitation shall be conducted under the supervision
of the Regional Director for Region 20, and shall be nar-
rowly limited to assessing and ensuring the Respondents’
compliance with this Order as described in the Amended
Remedy. The Respondents shall make available for in-
spection proofs of mailings, receipts, and sign-in sheets
as set forth in the Amended Remedy.
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
I concur regarding some remedies imposed by my col-
leagues in this case to address Respondents’ violations of
the Act,1 but I dissent regarding other remedies, especial-
ly (i) the requirement of “fee-shifting” (requiring Re-
spondents to pay the attorneys’ fees incurred by the Gen-
eral Counsel and also by the Union), and (ii) the sugges-
tion that the Board may commence awarding “front pay
in lieu of reinstatement” (the payment of future wages
without any requirement that the employee work or ac-
cept reinstatement). For reasons specific to the Act and
its legislative history, I believe the Board lacks authority
to impose these remedies. And putting aside limits on
the Board’s authority, these remedies are ill-advised be-
cause their potential availability will fundamentally
change the careful balancing of interests reflected in our
statute.
The Board is unanimous about one thing: this case in-
volves circumstances that render appropriate many of the
1 I also concur with my colleagues’ findings of liability in this case.
However, regarding Respondents’ unilateral curtailment of matching
contributions to employee 401(k) accounts from January 1 to May 1,
2010, in violation of Sec. 8(a)(5) and (1) of the Act, I do not rely on
RBE Electronics of S.D., 320 NLRB 80 (1995), and Bottom Line Enter-
prises, 302 NLRB 373 (1991), enfd. sub nom. Master Window Clean-
ing, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994), which the judge cited.
Regarding the finding that employee Rhandy Villanueva’s warning,
suspension, and discharge were unlawful, I disagree with the majority’s
statement that the General Counsel need not establish a “nexus” be-
tween decisions and unlawful motivation under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). As expressed in my concurring opinion in Star-
bucks Corp., 360 NLRB 1168, 1172 fn. 1 (2014), generalized antiunion
animus does not satisfy the General Counsel’s initial burden under
Wright Line absent evidence that the challenged adverse action was
motivated by antiunion animus. As stated in Wright Line itself, the
General Counsel must make “a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘motivating factor’ in
the employer’s decision.” 251 NLRB at 1089 (emphasis added).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
remedies described by my colleagues.2 As reflected in
the record before us, the company has exhibited con-
tempt, literally and figuratively, for its obligation to
comply with Federal law, which includes the National
Labor Relations Act. As my colleagues rightfully state,
“Respondents have made plain their persistent indiffer-
ence toward their responsibilities under the Act and their
equally persistent defiance of the Board and the courts.”
The Respondents’ multiple violations of the Act involve
two discharge decisions found to be unlawful, plus other
unlawful actions. These violations span more than 10
years, including four separate cases before the Board,
and numerous related court proceedings. The record
includes credited testimony that a company vice presi-
dent—upon being informed that Respondents were vio-
lating a Federal court order issued pursuant to Section
10(j) of the Act—stated, “Fuck the judge. He’s wrong,”
and added that actions are “not illegal unless I go to jail.”
The National Labor Relations Act provides that, if the
Board finds that any party “has engaged in or is engaging
in any such unfair labor practice,” the Board shall devise
an order “requiring such person to cease and desist from
such unfair labor practice, and to take such affirmative
action including reinstatement of employees with or
without backpay, as will effectuate the policies of this
Act.”3 Not only can the Board devise remedies con-
sistent with its authority under the Act, the Board has the
authority in appropriate cases to seek interim injunctive
relief under Section 10(j).4 Moreover, the Board’s orders
are subject to enforcement in the courts. When any party
violates a court’s enforcement of an NLRB order, that
violation is subject to potential civil and criminal con-
tempt proceedings and penalties, including potential
fines and imprisonment.5
I embrace the remedies and enforcement measures
available to the Board and courts under the Act, includ-
ing aggressive resort to civil and criminal contempt pro-
ceedings in appropriate cases. When the Board encoun-
2 It is well established that the Board has broad remedial authority
under Sec. 10 of the Act, although the Board’s remedial authority is not
unlimited. See discussion in part A (“Fee-Shifting”) below.
3 Sec. 10(c). Sec. 10(a) also states that “[t]he Board is empowered
. . . to prevent any person from engaging in any unfair labor practice . . .
affecting commerce.”
4 Sec. 10(l) similarly requires the Board to seek injunctive relief re-
garding unlawful secondary picketing and related activity.
5 Sec. 10(e) provides for the Board to secure court orders enforcing
Board decisions, and noncompliance is similarly subject to potential
civil and criminal contempt proceedings punishable by fines, impris-
onment, or both. See, e.g., Amalgamated Utility Workers v. Consoli-
dated Edison Co., 309 U.S. 261, 270 (1940) (describing the Board’s
authority “to ask the court to punish the violation of its decree [enforc-
ing a Board order] as a contempt”); In re Winn-Dixie Stores, Inc., 386
F.2d 309 (5th Cir. 1967) (criminal contempt proceeding).
ters a recidivist offender that has violated repeated Board
and court orders, and where the violations span many
years, the Board has the responsibility to carefully evalu-
ate and devise remedies that in these particular circum-
stances will “effectuate the policies of [the] Act.”6
Accordingly, as described below, I agree with many
remedies the Board finds appropriate to impose in cases
like this one. The Board in a narrow range of cases has
awarded compensation for the union’s reasonable bar-
gaining expenses in cases involving unusually aggravat-
ed misconduct (see majority opinion, part 2).7 Circum-
stances like those presented here can warrant the posting
and mailing to employees of the Board’s remedial notice
and decision, together with an Explanation of Rights
particularized to the types of violations presented here
(id., part 3).8 Consistent with other cases involving ex-
6 Sec. 10(c).
7 I agree with my colleagues that the award of bargaining expenses,
though appropriate in a narrow range of cases, is “not lightly imposed.”
Examples include EPE, Inc., 273 NLRB 1375, 1379 (1985); J. P. Ste-
vens & Co., 239 NLRB 738, 773 (1978), remanded 623 F.2d 322 (4th
Cir. 1980), cert. denied 449 U.S. 1077 (1981); Harowe Servo Controls,
Inc., 250 NLRB 958, 964 (1980); Teamsters Local 122, 334 NLRB
1190, 1195 (2001), enfd. mem. No. 01–1513 (D.C. Cir. 2003); Unbe-
lievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997). Cf. Camelot
Terrace, 357 NLRB 1934, 1945 fn. 9 (2011) (Member Hayes, dissent-
ing in part) (“I join my colleagues in finding that the Union should be
reimbursed for its negotiation expenses due to the Respondent’s failure
and refusal to bargain in good faith, a remedy long sanctioned by both
the Board and the courts.”).
Although I agree an award of bargaining expenses is appropriate
here, I dissent from my colleagues’ award of “costs” related to the
exclusion of union representatives Mori and Labtingao from the prem-
ises. We have found that the exclusion of Mori and Labtingao was an
unlawful unilateral change in the parties’ practice. However, there is
no reason that the standard remedy of restoring the status quo, if the
Union so requests, and ordering the Respondents to cease and desist
engaging in this unlawful conduct is insufficient to remedy this viola-
tion. This award of costs is similar to the type of fee-shifting that I
believe exceeds the Board’s authority for the reasons expressed in part
A of this opinion below.
8 My colleagues’ Explanation of Rights is not intended to function as
a blanket notice requirement regarding generalized rights and obliga-
tions under the Act. Also, I note that the requirement that the Respond-
ents provide copies of the notice and Explanation of Rights to newly
hired employees for a 3-year period (which, like my colleagues, I find
reasonable in this case) does not otherwise restrict the employer’s right
to engage in other communications and orientation sessions as the
employer deems appropriate. In this regard, however, it is well estab-
lished that employers are prohibited from devising their own parallel
notices or communications that overtly negate or disclaim compliance
with Board orders and posted notices. See NLRB Casehandling Manu-
al, Part 3, Sec. 10518.6 (discussing the impermissibility of “side notic-
es” that minimize or negate a party’s remedial obligations); cf. Deister
Concentrator Co., 253 NLRB 358, 359 fn. 5 (1980).
I dissent from my colleagues’ requirement that the Respondents mail
the Board’s Order, decision, notice and Explanation of Rights to their
current managers and supervisors (and to mail or distribute the same
materials to those individuals hired in the future for a 3-year period). It
is well established that, as a matter of law, managers and supervisors

HTH CORP. 725
treme and recurring unlawful conduct, we have the au-
thority (a) to require publication of certain documents in
local newspapers or other periodicals (id., part 4); (b) to
require the reading of documents by a designated man-
agement representative in the presence of a Board agent
and a representative of the certified union (id., part 5);9
(c) to impose the standard remedy of rescinding unlawful
unilateral changes (id., part 6);10 (d) to apply our tradi-
tional prohibition against unlawful discrimination that
unilaterally eliminates a preexisting right—if afforded by
existing contract provisions or past practice—giving ac-
cess to union representatives consistent with the applica-
ble contract provisions or past practice (id., part 7);11 (e)
to impose the existing remedy, though rarely utilized,
providing for reasonable periodic Board access solely to
inspect and confirm compliance with the Board’s order
(id., part 8);12 and (f) to utilize the standard remedies of
are not members of any bargaining unit (see, e.g., NLRB v. Yeshiva
University, 444 U.S. 672, 681–682 (1980)). Because of the required 3-
year posting and mailing of the notice and expanded Explanation of
Rights for bargaining unit employees, it is likely that the Employer—
even if not required—would also distribute these documents to manag-
ers and supervisors. The required posting of these documents will also
make managers and supervisors aware of them. However, I believe it is
inappropriate for the Board to require the mailing and distribution of
these documents to nonunit employees.
9 See, e.g., McCallister Towing & Transportation Co., 341 NLRB
394, 400 (2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005); U.S. Ser-
vices Industries, 319 NLRB 231, 232 (1995), enfd. mem. 107 F.3d 923
(D.C. Cir. 1997). I agree with my colleagues that the reading require-
ment can be satisfied, at Respondents’ option, by having the Board
agent do the reading in the presence of the designated representatives.
10 See, e.g., California Pacific Medical Center v. NLRB, 87 F.3d
304, 311 (9th Cir. 1996) (stating that restoration of the status quo ante
is the usual remedy in unilateral change cases).
11 See, e.g., Dow Jones & Co., 318 NLRB 574, 575–577 (1995),
affd. mem. 100 F.3d 950 (4th Cir. 1996). My colleagues restate this
traditional prohibition as a requirement that Respondents “rescind any
rule or practice limiting the Union’s access to its property at variance
with its past practice or prior agreements with the Union and notify
union agents . . . , both orally and in writing, that they are no longer
barred and that the Respondents will not deny union representatives
access at variance with past practice or the terms of the existing collec-
tive-bargaining agreement.” This requirement is essentially the same as
the Board’s standard cease-and-desist order in cases where union repre-
sentatives previously were afforded a right of access to the workplace
for union business, and where the employer unilaterally denied access
based on antiunion discrimination or in retaliation for protected union
activities. Id.
12 Sec. 10(e) of the Act authorizes the Board to require a violator “to
make reports from time to time showing the extent to which it has
complied with the [Board’s] order.” As noted in the majority opinion,
any future access afforded to Board representatives shall be “at reason-
able times and in a manner not to unduly interfere with the Respond-
ents’ operations, for the limited purpose of determining whether the
Respondents are in compliance with our posting, distribution, and mail-
ing requirements.” The facts in the instant case, consistent with other
decisions where a similar remedy has been ordered, make it reasonable
to conclude that the Respondents “will fail to cooperate or [will] other-
wise attempt to evade compliance,” and “may not cooperate in provid-
reinstatement, backpay and lost benefits for individuals
whose discharge(s) were proven to result from unlawful
discrimination (id., part 9).13
However, as to these and other remedies described by
my colleagues, I believe several points warrant elabora-
tion.
First, the Board regards this as an extremely unusual
case. Putting aside the standard remedies of rescission,
reinstatement, back wages, and lost benefits, the other
remedies described above are truly extraordinary
measures. They address misconduct by a party that has
been adjudicated to be in contempt of court, whose ob-
jectionable actions interfered with multiple elections,
where two Section 10(j) injunctions have been issued,
where multiple discharges violated Section 8(a)(3), and
where the Respondents exhibited open contempt for the
Act’s requirements and for Board and court orders. And
nearly all of the foregoing remedies have been utilized by
the Board previously in other cases involving outrageous
or recidivist violations. We are a nation of laws, and
parties must be responsible for conduct that fails to con-
form to those laws. The Board should require the same
accountability regarding the statute we have responsibil-
ity to enforce.
Second, consistent with the structure of the Act and the
neutral role played by the Board, extraordinary remedies
like those described above may be appropriately imposed
against any party, whether it be an employer or union,14
that violates Board and court orders over a period of
many years.
Third, any party’s noncompliance with court-enforced
Board orders is subject, as noted previously, to civil and
criminal contempt proceedings.15 I support the aggres-
ing relevant evidence unless given specific, sanction-backed directions
to do so.” Cherokee Marine Terminal, supra at 1083 fn. 14.
13 Although the standard remedy of backpay is appropriate for Vil-
lanueva’s unlawful discharge, I dissent from my colleagues’ pro-
nouncement that “we will look skeptically on any claim by the Re-
spondents in compliance that Villanueva has failed to mitigate damag-
es.” Board and court cases provide that backpay awards are subject to a
duty to exercise reasonable diligence in mitigating damages by seeking
interim employment. American Bottling Co., 116 NLRB 1303 (1956);
NLRB v. F.E. Hazard Ltd., 959 F.2d 407 (2d Cir. 1992). Any future
claims about whether Villanueva exercised reasonable diligence in
mitigating damages would need to be based on an evidentiary record,
which cannot reasonably be prejudged in advance. Sec. 10(c) (requir-
ing Board findings to be based on the “preponderance of the testimo-
ny”); Sec. 10(e) (providing for court enforcement of Board findings “if
supported by substantial evidence on the record considered as a
whole”).
14 See, e.g., Sec. 10(c) (“[W]here an order directs reinstatement of an
employee, backpay may be required of the employer or labor organiza-
tion, as the case may be, responsible for the discrimination suffered by
him”).
15 See fn. 5 supra.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
sive pursuit of contempt proceedings when a party refus-
es to comply with Board orders that have been enforced.
These proceedings are clearly within the authority of the
Board and the courts, and such proceedings obviously
afford due process to the parties.16 However, we should
not substitute an enhancement of remedies for our fail-
ure, in the first instance, to pursue contempt proceedings
that are justified by a party’s noncompliance with court-
enforced Board Orders.
Finally, and most importantly, I part company with my
colleagues regarding two remedies: the award of attor-
neys’ fees to the General Counsel and the Union, and the
award of front pay in lieu of reinstatement (which can be
more accurately called “future pay”).17 These remedies
16 Respondents in contempt actions obviously have notice and the
opportunity to defend against the contempt proceeding. Additionally,
they usually have had the prior opportunity to defend against the court
of appeals’ enforcement of the Board Order, in addition to the oppor-
tunity before the Board to defend against the underlying alleged viola-
tions of the Act.
17 The term “front pay” causes confusion because it has multiple
meanings. My colleagues argue in favor of “front pay in lieu of rein-
statement,” which contemplates the Board will award employees future
wages without any requirement that they accept reinstatement or per-
form other work. My colleagues acknowledge this type of front pay
(future pay) has never been awarded in the Board’s long history. How-
ever, as the Supreme Court has described in Pollard v. E. I. du Pont de
Nemours & Co., 532 U.S. 843, 846 (2001), some courts in Title VII
cases have also used the term “front pay” to describe the Board’s tradi-
tional “backpay” remedy conditioned on, and limited by, the employ-
er’s offer of reinstatement. This conventional “backpay” remedy was
regarded as “front pay” merely because most claimants are reinstated
only after parties receive the judgment requiring reinstatement, so a
small portion of this traditional “backpay” relates to the period after
judgment is entered. For a further explanation of this distinction, see
the discussion of Pollard in the text accompanying notes 56–67 below.
Under the Board’s traditional approach, reinstatement supplemented
with backpay and benefits has been the standard remedy for an unlaw-
ful discharge, except in those cases where an intervening event cuts
short the backpay period and eliminates the reinstatement obligation.
This would occur, for example, if the record reveals that the employee
was unlawfully discharged from a position that the employer proves
was eliminated for lawful reasons (e.g., in the event of a complete
cessation of business for bankruptcy or other business reasons). See,
e.g., December 12, Inc., 282 NLRB 475 (1986), enfd. mem. 838 F.2d
474 (9th Cir. 1988). Similarly, the backpay period might be shortened
(or backpay liability may be subject to an offset) based on evidence that
an employee refused the employer’s unconditional offer of reinstate-
ment (see, e.g., Denson Electric Co., 133 NLRB 122, 123–124 (1961))
or otherwise failed to exercise reasonable diligence in mitigating dam-
ages (see, e.g., Mastro Plastics, 136 NLRB 1342, 1346–1347 (1962),
enfd. in relevant part 354 F.2d 170 (2d Cir. 1965), cert. denied 384 U.S.
972 (1966); Painters Local 419 (Spoon Tile Co.), 117 NLRB 1596,
1598 fn. 7 (1957) (citing Laister-Kauffman Aircraft Corporation, 63
NLRB 1367 (1945)), enfd. sub nom. NLRB v. Brotherhood of Painters,
242 F.2d 477 (10th Cir. 1957)). In all cases involving the Board’s
traditional approach, however, backpay and benefits would cease as of
the date the employer offered reinstatement (regardless of whether or
not the employee accepted reinstatement). By comparison, my col-
leagues suggest the Board could require—in addition to backward-
were not sought in the instant case, they have not been
the subject of briefing, and I believe they are clearly out-
side the Board’s remedial authority under the Act. Fee-
shifting and front pay in lieu of reinstatement—if regu-
larly awarded by the Board—would substantially alter
the character of NLRB litigation, in addition to disrupt-
ing the “balancing [of] competing interests of labor and
management” which is the province of Congress and not
the Board. American Ship Building Co. v. NLRB, 380
U.S. 300, 316 (1965) (the Board does not have “general
authority to define national labor policy by balancing the
competing interests of labor and management”).18 Dif-
ferent considerations highlight the inappropriateness of
these remedies, and I address each of them in turn below.
A. Fee-Shifting
The scope of any statute must start with an examina-
tion of its plain language. Griffin v. Oceanic Contrac-
tors, Inc., 458 U.S. 564, 571 (1982); Bell Atlantic Tele-
phone Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir.
1997). The NLRA provides that the Board has the power
to “prevent any person from engaging in any unfair labor
practice” (Sec. 10(a)). And if a violation is proven based
upon “the preponderance of the testimony,” the Act is
very specific regarding what the Board may do:
[T]he Board shall state its findings of fact and shall is-
sue and cause to be served on such person an order re-
quiring such person to cease and desist from such un-
fair labor practice, and to take such affirmative action
including reinstatement of employees with or without
backpay, as will effectuate the policies of this Act.
Sec. 10(c) (emphasis added). Regarding the Board’s reme-
dial authority, Congress included additional specific re-
quirements and restrictions in the Act:

• As reflected in the above language, the Act in-
dicates that the remedy of “backpay” is intended
only to supplement “reinstatement of employ-
ees.” Id. This notion is reinforced by Section
10(c)’s language indicating who should be re-
looking wages and benefits—a payment equivalent to future wages and
benefits without any reinstatement and the future performance of work
by the employee (and, presumably, without regard to whether the em-
ployee found future employment with a different employer).
18 See also International Longshore Assoc. v. Allied International,
Inc., 456 U.S. 212, 226–227 (1982) (“The labor laws reflect a careful
balancing of interests.”); NLRB v. Brown, 380 U.S. 278, 291–292
(1965) (stating that, regarding the “proper balance to be struck between
conflicting interests,” deference to the Board “cannot be allowed to slip
into a judicial inertia which results in the unauthorized assumption by
an agency of major policy decisions properly made by Congress”). Cf.
NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607,
617–618 (1980) (Blackmun, J., concurring) (referring to “Congress’
striking of the delicate balance” regarding the right to be free from
“coerced participation in industrial strife”).

HTH CORP. 727
sponsible for backpay. Here, the Act states:
“[W]here an order directs reinstatement of an
employee, backpay may be required of the em-
ployer or labor organization, as the case may
be, responsible for the discrimination suffered
by him.” Id. [emphasis added].
• Section 10(c) sets forth a further requirement
added as a result of the Taft-Hartley amend-
ments in 1947 regarding the remedy of “rein-
statement.” Here, the Act states: “No order of
the Board shall require the reinstatement of any
individual as an employee who has been sus-
pended or discharged, or the payment to him of
any backpay, if such individual was suspended
or discharged for cause.” Id. [emphasis added].
• Section 10(c) also provides for a reporting re-
quirement, stating that the Board’s remedial or-
der “may further require such person [found to
have violated the Act] to make reports from
time to time showing the extent to which it has
complied with the order.” Id.

The Supreme Court has also been specific about what
the Board may not do when the Board concludes that a
party has violated the Act. The Board’s remedial author-
ity, though broad, is strictly limited to measures that are
“remedial,” not punitive. Republic Steel Corp. v. NLRB,
311 U.S. 7, 11–12 (1940) (citing Consolidated Edison
Co. v. NLRB, 305 U. S. 197, 235–236 (1938)); NLRB v.
Pennsylvania Greyhound Lines, 303 U. S. 261, 267–268
(1938). The Board is not “free to set up any system of
penalties which it would deem adequate” to “have the
effect of deterring persons from violating the Act.” Re-
public Steel, 311 U.S. at 12. The Board’s authority to
devise remedies “does not go so far as to confer a puni-
tive jurisdiction enabling the Board to inflict upon the
employer any penalty it may choose because he is en-
gaged in unfair labor practices, even though the Board be
of the opinion that the policies of the Act might be effec-
tuated by such an order.” Consolidated Edison, 305
U.S. at 235–236 (emphasis added). As the Supreme
Court stated in Republic Steel: “We do not think that
Congress intended to vest in the Board a virtually unlim-
ited discretion to devise punitive measures, and thus to
prescribe penalties or fines which the Board may think
would effectuate the policies of the Act.” 311 U.S. at 11
(emphasis added).
The Supreme Court has held that “the circumstances
under which attorney’s fees are to be awarded and the
range of discretion of the courts in making those awards
are matters for Congress to determine,” Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240 (1975),
and “a court may award attorney’s fees only when ex-
pressly so authorized by the legislature,” Summit Valley
Industries, Inc. v. Carpenters, 456 U.S. 717, 726 (1982).
It would be incongruous to suggest that the Board as
an agency, not a court, has greater authority to require
fee-shifting without congressional authorization than
suggested by the Supreme Court in Alyeska and Summit
Valley. However, a detailed examination of this question
has been rendered unnecessary because the D.C. Circuit
in Unbelievable, Inc. v. NLRB, 118 F.3d 795, 806 (D.C.
Cir. 1997), squarely held that the Board cannot impose
fee-shifting as a remedy for unfair labor practices. See
also Camelot Terrace, 357 NLRB 1934, 1944 (Member
Hayes, dissenting) (“[T]he Board lacks the authority un-
der Section 10(c) to impose a fee-shifting order.”). The
D.C. Circuit in Unbelievable, Inc. indicates that (i) “the
presumption against fee-shifting does apply to the
NLRA” (118 F.3d at 802), (ii) “congressional silence in a
particular statute [is] an indication that the legislature did
not intend to authorize fee shifting” (id.), (iii) “by impos-
ing an award of attorney’s fees the Board moves away
from its expertise in labor relations and exercises a dis-
cretionary power entrusted to a court only when specifi-
cally legislated” (id. at 805), and (iv) “[t]o the extent that
the power to shift fees is justified as a deterrent to frivo-
lous litigation . . . the power is punitive and therefore
beyond the Board’s delegated authority” (id. ).
For several reasons, I disagree with the suggestion that
we can impose fee-shifting because of what my col-
leagues describe as the Board’s “inherent authority to
control and maintain the integrity of its own proceed-
ings.”
First, statutory authorization for a recovery of attor-
neys’ fees is not only absent from the NLRA, but its ab-
sence stands in stark contrast to other statutes where fee-
shifting has expressly been authorized by Congress.19
This warrants a conclusion that Congress intentionally
decided not to authorize fee-shifting in the NLRA.
Indeed, such a conclusion is inescapable from a com-
parison of the NLRA to the Railway Labor Act (RLA).
The RLA was originally enacted in 1926 without any
fee-shifting provision.20 However, in 1934—while Con-
gress was actively considering the Wagner Act legisla-
19 Congress has included fee-shifting provisions in numerous other
employment statutes that, similar to the RLA (and unlike the NLRA),
authorize fee-shifting awards. See, e.g., Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 1988; Age Discrimination in Employment
Act, 29 U.S.C. §§ 216(b) and 626(b); Americans with Disabilities Act,
29 U.S.C. § 12205; Family and Medical Leave Act, 29 U.S.C. § 2617;
Workers Adjustment and Retraining Notification Act, 29 U.S.C. §
2104.
20 44 Stat. 577–587 (1926).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
tion, which ultimately became the NLRA21—Congress
enacted RLA amendments including an express RLA fee
-shifting provision.22 The NLRA’s subsequent enact-
ment without any fee-shifting provision compels a con-
clusion that Congress intended not to permit an award of
attorneys’ fees under the NLRA. As stated in Alcoa
Steamship Co. v. Federal Maritime Comm., 348 F.2d
756, 758 (D.C. Cir. 1965), “[w]here Congress has con-
sistently made express its delegation of a particular pow-
er, its silence is strong evidence that it did not intend to
grant the power.”
Second, there is a good reason that Congress did not
authorize the NLRB to require parties to pay one anoth-
er’s attorneys’ fees: the Act avoids the need for any par-
ty to retain counsel when pursuing Board charges and
complaints.23 Not only does the Act provide for Board
21 The Wagner Act legislation dates back to March 1, 1934, when
Senator Robert F. Wagner introduced S. 2926 during the 73d Congress.
S. 2926, 73d Cong. (1934), reprinted in 1 NLRB, Legislative History of
the National Labor Relations Act, 1935, at 1 (1935). Companion legis-
lation—H.R. 8434—was introduced in the House by Representative
William Connery, Chairman of the House Committee on Labor. H.R.
8423, 73d Cong. (1934), 1 Leg. Hist. 1128 (introduced March 1, 1934).
Hereinafter, the two-volume compiled NLRA legislative history is
referred to as “__ Leg. Hist. __.”
The Wagner Act legislation was the subject of Senate Labor Com-
mittee hearings in March and April 1934 when, on April 2, 1934, im-
portant RLA amendments were introduced, which included a fee-
shifting provision; and the RLA amendments were signed into law on
June 21, 1934. See S. 3266, 73d Cong. (1934) (introduced April 2,
1934); S. 3266, 73d Cong. (1934) (reported favorably to Senate, April
2, 1934); H.R. 9861, 73d Cong. (1934) (introduced June 6, 1934); 78
Cong. Rec. 10,576 (Senate debates, June 6, 1934); 48 Stat. 1185–1997
(1934) (signed June 21, 1934). Congress continued its deliberations
regarding the Wagner Act legislation, which ultimately was enacted—
without any fee-shifting provisions—on July 5, 1935. See S. 1958,
74th Cong. (1935), 1 Leg. Hist. 1295; H.R. 6187, 74th Cong. (1935), 2
Leg. Hist. 2445; H.R. 6288, 74th Cong. (1935), 2 Leg. Hist. 2459; H.R.
7978, 74th Cong. (1935), 2 Leg. Hist. 2857; S. 1958, 74th Cong.
(1935), 2 Leg. Hist. 2944; S. 1958, 74th Cong. (1935), 2 Leg. Hist.
3032; S. 1958, 74th Cong. (1935), 2 Leg. Hist. 2416; S. 1958, 74th
Cong (1935), 2 Leg. Hist. 3238; H.R. Rep. 74–1371 (1935), 2 Leg.
Hist. 3252; S. 1958, 74th Cong. (1935), 2 Leg. Hist. 3270.
22 Under the RLA’s fee-shifting provision, an award of attorneys’
fees is authorized, but only in favor of a party who “shall finally pre-
vail” in a “District Court of the United States” in a lawsuit challenging
non-compliance with an order issued by a division of the National
Railroad Adjustment Board (NRAB), previously known as the “Na-
tional Board of Adjustment.” See RLA Sec. 3, First, (p), 45 U.S.C. §
153, First, (p) (Lawsuits challenging non-compliance with an NRAB
order may be filed in “the District Court of the United States,” and “[i]f
the petitioner shall finally prevail he shall be allowed a reasonable
attorney's fee, to be taxed and collected as a part of the costs of the
suit.”). See also S. 3266, 73d Cong. (1934) (amendments to RLA in-
troduced on April 2, 1934) (same).
23 Unfair labor practice charges are initiated by a charging party—
often individuals—who receive assistance from full-time Board attor-
neys, agents, or other individuals in NLRB Regional Offices through-
out the country. The Board’s regional attorneys or other regional staff
conduct an independent investigation of every charge, equipped with
attorneys to prosecute all aspects of charges and com-
plaints (through potential review by the U.S. Supreme
Court), the Act also authorizes (or, under Sec. 10(l), re-
quires) the Board to seek or provide other unusual reme-
dies, including injunctions providing for remedies like
interim reinstatement even before the Board has decided
whether the Act has been violated.24 The NLRA is mate-
rially different from other statues that expressly provide
for fee-shifting. These other statutes usually confer a
private right of action on individuals who, in most if not
all cases, at some stage must pursue their own claims
with their own attorneys. As the D.C. Circuit held in
Unbelievable, Inc., participation by the charging party in
Board cases “is strictly voluntary. The union, employee,
or employer filing a charge with the Board need not play
any role in the proceedings beyond serving the respond-
ent with a copy of the charge.” 118 F.3d at 803 (empha-
sis added).
Third, there is no authorization in the Act for a recov-
ery of attorneys’ fees payable to the Board itself. No-
body should condone the unnecessary expenditure of
public funds in agency litigation against parties whose
noncompliance results in unnecessary proceedings and
litigation. However, Congress made the policy judgment
to create the Board and to provide public funding for the
Board’s activities.25 The Act contains no provision au-
investigative and subpoena powers (specifically authorized in Sec. 11
of the Act). These Board attorneys and staff members are responsible
for obtaining affidavits in support of any charge. If the General Coun-
sel concludes there is reasonable cause to believe a charge has merit,
the General Counsel (acting through a regional director)—and not the
private party—issues the complaint served on an allegedly offending
employer or union. And all aspects of a complaint’s prosecution, in-
cluding the presentation of testimony and documentary evidence before
the Board’s administrative law judge, is the responsibility of the
Board’s General Counsel (again, typically acting through the Board’s
regional attorneys). After an ALJ decision is issued, the Board’s Gen-
eral Counsel likewise is responsible for filing exceptions with the
Board in support of the complaint (and for defending against any ex-
ceptions filed by the respondent employer or union). After the Board
itself renders a decision, other Board attorneys pursue the case in the
courts of appeals and, if certiorari is granted, the U.S. Supreme Court.
24 See, e.g., Secs. 10(j) and (l). Longstanding Board procedures
permit parties who support a charge or complaint to be represented by
counsel, and private parties with appropriate standing can intervene in
support of a complaint. See Sec. 10(b) of the NLRA; see also Sec.
102.29 of the Board’s Rules and Regulations. However, as noted in the
text, the Act’s extensive provisions reflect a conscious decision by
Congress not to confer a right of action on private parties to enforce
relevant rights themselves. To the contrary, the Act provides that the
Board’s own personnel will be responsible, at all stages, for pursuing
charges and complaints, and there is no need for the charging party or
any intervening parties to have legal representation.
25 The Act contains detailed provisions regarding expenses of the
Board, reporting by the agency regarding “moneys it has disbursed,”
and the treatment of other Board expenses. See, e.g., Sec. 3(c), Secs.
4(a), (b).

HTH CORP. 729
thorizing the Board to recover its own attorneys’ fees
from private parties, and the Supreme Court in Republic
Steel expressly held the Board does not have authority to
require “payments to the Federal, State, County, or other
governments” to redress “an injury to the public.” 311
U.S. at 12–13. It is also noteworthy that—when we de-
fend against claims that the Board should pay a respond-
ent’s attorneys’ fees for frivolous, non-meritorious litiga-
tion—the Board often opposes such awards, and we have
found that the only “specific legislation” authorizing a
potential fee recovery is the Equal Access to Justice Act
(EAJA). Raley’s, 348 NLRB 382, 388 (2006) (“The only
‘specific legislation’ that could bear upon the Respond-
ents’ potential eligibility [for an attorneys’ fees award] is
EAJA.”).26
Fourth, unlike my colleagues, I do not believe the
Board has “inherent authority” to impose an attorneys’
fees award on private parties, in the absence of authoriza-
tion by Congress, merely because the Board disclaimed
reliance on an “inherent authority” argument when the
D.C. Circuit—in Unbelievable, Inc.—held the Board
lacked statutory authority to require the payment of at-
torneys’ fees.27 As noted above, I believe the Act’s
structure and language—rather than merely reflecting the
absence of authority to award attorneys’ fees—reflects an
intentional decision by Congress not to permit the Board
to award such fees. A Board majority relied on the same
“inherent authority” argument in Camelot Terrace, 357
NLRB No. 161, slip op. at 5, where parties argued that
attorneys’ fee awards were needed “as a sanction for a
party’s bad-faith conduct”28 and “to protect the integrity
of [the Board’s] administrative processes.”29 In my
view, neither contention has merit. The D.C. Circuit in
Unbelievable, Inc. rejected the Board’s argument that
fee-shifting awards can be imposed based on the need to
deter bad-faith, frivolous claims.30 As to any need to
26 When considering its own potential responsibility to pay for a pre-
vailing respondent’s claims for attorneys’ fees under EAJA, the Board
has hardly given an expansive interpretation to the potential right to
recover attorneys’ fees. Id. (indicating that EAJA claims “must be
strictly construed in favor of the United States”); Austin Fire Equip-
ment, LLC, 360 NLRB 1176, 1176, 1179 (finding that meritless litiga-
tion was “substantially justified in the circumstances”), 4–6 (Member
Miscimarra, dissenting).
27 As the D.C. Circuit majority explained in Unbelievable, Inc., 118
F.3d at 800 (unnumbered footnote), the Board’s counsel disclaimed
basing any right to impose attorneys’ fees on an “alternative rationale”
involving the Board’s “inherent authority” to control its own proceed-
ings.
28 Id. (citing Link v. Wabash R. Co., 370 U.S. 626 (1962)).
29 Id. (citations omitted). I agree with the reasoning set forth by
former Member Hayes in his partial dissenting opinion in Camelot
Terrace. Id., slip op. at 11–12.
30 See, e.g., Unbelievable, Inc., 118 F.3d at 805 (“[I]t is not itself an
unfair labor practice to present a frivolous defense to an unfair labor
protect the Board’s “administrative processes,” this has
been raised to justify fee-shifting in a line of cases dating
back to Tiidee Products, Inc., 194 NLRB 1234 (1972).
In Tiidee, the Board justified a fee-shifting award to en-
sure that parties have “speedy access to uncrowded
Board and court dockets” and to avoid “reward[ing] Re-
spondent's delaying tactics.”31 The D.C. Circuit in Unbe-
lievable, Inc. reviewed these cases, including Tiidee
(which predated the Supreme Court’s broad reaffirmation
of the “American rule” presumption against fee-shifting
in Alyeska), and nonetheless held “there must be ‘clear
support’ for the agency’s claim that the Congress author-
ized the agency to order one party to pay the fees of an-
other party or of the agency itself.”32 The D.C. Circuit’s
ultimate conclusion regarding fee-shifting was that “the
Board lacks that authority.”33
For these reasons, I do not believe the Board can justi-
fy fee-shifting based on a claim to have “inherent” au-
thority. If accepted, such a position would effectively
eliminate any requirement of authorization by Congress
and would validate non-remedial measures that the Su-
preme Court has consistently held may not be imposed
by the Board. Republic Steel, supra; Consolidated Edi-
son, supra; Pennsylvania Greyhound Lines, supra.
B. Front Pay (Future Pay)
I also dissent from my colleagues’ broad endorsement
of “front pay in lieu of reinstatement,” which would be
an even more radical departure from the Board’s tradi-
tional remedies. For starters, as noted above, no party
here has even sought the remedy of front pay in lieu of
reinstatement, the judge did not award front pay in lieu
of reinstatement, and nobody has been given the oppor-
tunity to submit briefs regarding whether we have au-
thority to award such a remedy. My colleagues concede
this remedy would be unprecedented and extraordinary:
we have never imposed front pay in lieu of reinstatement
at any time in our history of nearly 80 years.
My colleagues refrain from the actual imposition of
front pay in lieu of reinstatement in the instant case.
However, their opinion all but finds that the Board has
practice charge,” and if “the power to shift fees is justified as a deter-
rent to frivolous litigation . . . the power is punitive and therefore be-
yond the Board’s delegated authority.”) (citation omitted).
31 194 NLRB at 1236.
32 118 F.3d at 806.
33 Id. Disputing this point, my colleagues cite Alwin Mfg. Co. v.
NLRB, 192 F.3d 133, 143 fn. 13 (D.C. Cir. 1999). But in Alwin, the
D.C. Circuit concluded that it lacked jurisdiction to consider Alwin’s
objections to the Board’s fee-shifting remedy because Alwin had not
properly preserved the issue for review as required by Sec. 10(e) and
related case law. Id. at 143–144. Indeed, the D.C. Circuit stated that it
was not deciding whether the Board has authority to award “litigation
costs under its inherent authority.” Id at 143 fn. 13.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
the authority under the Act to award front pay in lieu of
reinstatement.34 I believe such a conclusion is incorrect
because this remedy not only appears to be unsupported
by the Act, but it would do violence to the NLRA’s
unique focus on collective action—i.e., “concerted ac-
tivities for the purpose of collective bargaining,” includ-
ing “self-organization” and “other mutual aid and protec-
tion” between and among employees in the workplace.35
Especially given the absence of any briefing by the
parties or the solicitation of submissions from amici curi-
ae, I credit my colleagues for their restraint in not award-
ing front pay in this case. However, some comment is
warranted in response to this aspect of my colleagues’
opinion.
(1) Unlike Other Discrimination Statutes, the Act’s
Central, Near-Exclusive Focus Relates to “Collective”
and “Concerted” Activities Among Employees at Work.
The National Labor Relations Act is unique among Fed-
eral employment statutes. The core focus of the NLRA
relates almost exclusively to the manner in which em-
ployees interact collectively and in support of one anoth-
er. In relevant part, Section 7 of the Act states:
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.36
Section 7 is the cornerstone of the Act, and it encompasses a
range of activities.37 The language in Section 7 plainly re-
flects the Act’s focus on “collective” actions, “self-
organization” and representation, and these terms shed some
light on the meaning of “mutual aid or protection.” 38 How-
ever, all of these protections have meaning only if employ-
34 Because my colleagues effectively endorse front pay as a remedy
the Board should award, I disagree with their criticism of my discussion
of the issue as “at best, premature.”
35 Sec. 7 (emphasis added).
36 Sec. 7 (emphasis added).
37 See, e.g., Charles J. Morris, NLRB Protection in the Nonunion
Workplace: A Glimpse at A General Theory of Section 7 Conduct, 137
U. Penn. L. Rev. 1673, 1682 (1989) (hereinafter Morris) (Sec. 7 embod-
ies the “substantive content” of the Act’s unfair labor practice provi-
sions).
38 See, e.g., Mohave Electric Cooperative, Inc. v. NLRB, 206 F.3d
1183, 1191–1192 (D.C. Cir. 2000) (“[T]he canon of ejusdem generis
. . . counsels against our reading [a] general phrase to include conduct
wholly unlike that specified in the immediately preceding list.”). It is
also well established that statutory language must be construed as a
whole, and particular words or phrases are to be understood in relation
to associated words and phrases. 2A Norman J. Singer, STATUTES AND
STATUTORY CONSTRUCTION (SUTHERLAND STATUTORY
CONSTRUCTION) Sec. 47.16 (5th ed. 1992).
ees have support from other employees who remain part of
the work force.
Obviously, an individual employee has protection un-
der the Act: he or she has the right to file an NLRB
charge, to participate in an NLRB election, to participate
in NLRB proceedings, and to refrain from engaging in
protected activities. However, the Act’s purpose and
objectives relate exclusively to “collective” and “con-
certed” activities between and among multiple employ-
ees as a group. As the Board held in Meyers Industries,
Inc. (Meyers II),39 employee conduct is not protected and
concerted under Section 7 unless “the record evidence
demonstrates group activities” or, at a minimum, interac-
tion for the purpose of “seek[ing] to initiate or to induce
or to prepare for group action.”40 See also Mushroom
Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir.
1964) (The Act’s protection extends to actions “engaged
in with the object of initiating or inducing or preparing
for group action or . . . [having] some relation to group
action in the interest of the employees.”).
Even the NLRA’s discrimination provisions are mate-
rially different from other discrimination laws. Statutes
like Title VII and the Age Discrimination in Employment
Act (ADEA) prohibit discrimination based on an indi-
vidual employee’s personal characteristics. Thus, Title
VII makes it unlawful to discharge or otherwise discrim-
inate against an employee “because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). The ADEA makes it unlawful to dis-
charge or otherwise discriminate against an employee
who is age 40 and older “because of such individual’s
age.” 29 U.S.C. § 623(a)(1). By comparison, the NLRA
does not protect any employee on the basis of his or her
individual characteristics. Rather, it generally protects
employees only concerning what they do in relation to
one another. For employers, Section 8(a)(1) prohibits
restraint, coercion, or interference with employees “in the
exercise of the rights guaranteed in section 7”—i.e., in
the exercise of their right to “collective” or “concerted”
activities. Section 8(a)(3) makes it unlawful for employ-
ers to engage in “discrimination in regard to hire or ten-
ure of employment or any term or condition of employ-
ment to encourage or discourage membership in any
labor organization.” For unions, Section 8(b)(1)(A)
likewise makes it unlawful to restrain or coerce employ-
ees “in the exercise of [Section 7] rights,” which again
only protects “collective” or “concerted” activities. Sec-
tion 8(b)(2) makes it unlawful for a union to “cause or
39 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d
1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
40 281 NLRB at 887 (emphasis added).

HTH CORP. 731
attempt to cause an employer to discriminate against an
employee” in violation of Section 8(a)(3).
Other provisions of the Act similarly reflect the im-
portance that Congress attached to having employees in
the workplace. Section 10(j) authorizes the Board to
seek temporary injunctive relief in Federal court, which
is frequently used to require interim reinstatement even
before the Board has resolved the alleged unfair labor
practices.41 The Act’s other provisions set forth addi-
tional detailed requirements regarding how employees
can choose to be represented by a union (conditioned on
support “by the majority of the employees” in an appro-
priate unit),42 what types of picketing and other concert-
ed activities by groups of employees are protected and
restricted,43 the Board’s resolution of disputes regarding
work assignments to “employees in a particular labor
organization . . . rather than to employees in another la-
bor organization,”44 and the requirement that employers
and unions “bargain collectively” in good faith.45
(2) The Act’s Provisions Suggest that the Board Lacks
Authority to Award Front Pay Without Reinstatement.
The NLRA’s predominant focus on “collective” and
“concerted” employee action obviously affects what
remedies “effectuate the purposes of the Act.” Nothing
in the Act suggests that Congress contemplated that the
Board would require the payment of “future pay” to em-
ployees unconnected to the requirement that they be rein-
stated.46 In fact, Section 10(c) states the opposite: the
Board can order “reinstatement of employees,” which, if
imposed, can be “with or without backpay.” The focus
on “reinstatement” was made even more explicit by addi-
tional language in Section 10(c)—added in 1947 by the
Taft-Hartley amendments47—providing that “where an
41 As reported by the Board’s Acting General Counsel in 2010, Sec.
10(j) injunctions “have provided a substantial and relatively swift rem-
edy by requiring employers to offer interim reinstatement to unlawfully
discharged employees pending the Board’s order.” Mem. GC 10–07,
“Effective Section 10(j) Remedies for Unlawful Discharges in Organiz-
ing Campaigns,” at 1 (Sept. 30, 2010).
42 Sec. 9(a).
43 See, e.g., Sec. 8(b)(4).
44 See, e.g., Secs. 8(b)(4)(d), 10(k).
45 See, e.g., Sec. 8(a)(5), 8(b)(3).
46 As indicated previously, the Board’s traditional approach has al-
ways treated backpay and benefits as supplementing the remedy of
requiring reinstatement (i.e., an offer of reinstatement). See fn. 17,
supra.
47 The Taft-Hartley amendments precluding reinstatement and back-
pay if an employee had been discharged or suspended for “cause” re-
sulted from objections in Congress that the Board had improperly or-
dered reinstatement in several cases when “acts constituting the cause
for discharge were committed in connection with a concerted activity.”
H.R. Rep. 80–510 at 39 (1947), reprinted in 1 NLRB, Legislative His-
tory of the Labor Management Relation Act, 1947 (hereinafter LMRA
Hist.) 543.
order directs reinstatement of an employee, backpay may
be required of the employer or labor organization, as the
case may be, responsible for the discrimination suffered
by him. . . . No order of the Board shall require the rein-
statement of any individual as an employee who has been
suspended or discharged, or the payment to him of any
backpay, if such individual was suspended or discharged
for cause.”48 The House report stated that this language
“forbids the Board to reinstate an individual unless the
weight of the evidence shows that the individual was not
suspended or discharged for cause,”49 again reflecting a
view that Congress regarded “reinstatement” as the core
remedy afforded by Section 10(c).
The Board has gone to significant lengths to ensure
that collective strength is not dissipated based on the
absence of employees who support one another or who
express forceful support for or against their union. We
have denounced conduct that unlawfully diminishes em-
ployee leverage or defers bargaining, for example, until
“the collective strength of the employees’ bargaining unit
had been dissipated.”50 Awarding front pay in lieu of
reinstatement, as a response to unlawful discrimination
caused by employers or unions, would remove the most
important employees from the workplace at times when
their presence predictably would be most important, and
when their absence would most adversely affect their
fellow employees.
Similar to what the D.C. Circuit said about fee-
shifting, any Board-ordered future pay awards uncon-
nected to reinstatement would “[move] the Board . . .
away from its expertise in labor relations,” and the Board
would exercise “a discretionary power entrusted to a
court only when specifically legislated.”51 It is an under-
statement to acknowledge, as my colleagues do, that an
award of future pay would require determinations as to
“when circumstances warrant such an award, as well as
the methodology of its calculation,” that there is “no uni-
form test for when front pay may be awarded under vari-
ous employment antidiscrimination statutes,” and that
there is no “standard method for how to calculate it.”
Front pay (future pay), as imposed by the courts under
Title VII and comparable statutes, involves far more
complex determinations than those associated with tradi-
tional NLRB backpay and benefits. Courts must decide
48 Sec. 10(c) (emphasis added).
49 H.R. Rep. 80–245 at 42 (1947), reprinted in 1 LMRA Hist. 333
(emphasis added), regarding H.R. 3020, 80th Cong. (1947).
50 Walter Pape, Inc., 205 NLRB 719 (1973). See also Royal Type-
writer Co., 209 NLRB 1006, 1015 (1974), enfd. 533 F.2d 1030 (8th
Cir. 1976); Summit Tooling Co., 195 NLRB 479, 481 (1972), enfd.
mem. 474 F.2d 1352 (7th Cir. 1973); Transmarine Navigation Corp.,
170 NLRB 389, 389–390 (1968).
51 Unbelievable, Inc., 118 F.3d at 805.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
what constitutes “essential data” to result in a “reasona-
bly certain” calculation, “the length of time the plaintiff
expects to work for the defendant,” and the “applicable
discount rate,” while avoiding any front pay award that
would be “unduly speculative.” Barbour v. Merrill, 48
F.3d 1270, 1280 (D.C. Cir. 1995) (citations omitted).
There can be an even greater risk of inappropriate front
pay awards in “certain cases involving multiple plaintiffs
or multiple jobs.” Id. Not only are these types of more
complex financial issues foreign to the Board’s compe-
tence, this was recognized by the Board itself when, in
1940, the Agency abolished its Division of Economic
Research,52 and Section 4(a) of the Act—adopted by
Congress in 1947—prohibits the Board from appointing
personnel to engage in “economic analysis.”53 There-
fore, the statute appears to preclude the Board from do-
ing the work needed to determine whether, when or how
to calculate the present value of an employee’s projected
future pay in lieu of reinstatement. Such a determina-
tion—if made by the Board—almost certainly would not
be entitled to deference from any court. Cf. Unbelieva-
ble, Inc., 118 F.3d at 805 (stating that the Board, by im-
posing fee-shifting awards, “moves away from its exper-
tise in labor relations”).
In my view, three final considerations reinforce a con-
clusion that the Act does not authorize the Board to
award employees future pay in lieu of reinstatement, and
such awards would be ill-advised.
First, employers or unions, if responsible for unlawful
discrimination, may favor future pay awards in lieu of
reinstatement to ensure discriminatees never return to the
workplace. In this respect, the availability of front pay
(future pay) may have the unintended consequence of
encouraging some parties to engage in worse violations
to “justify” a future pay remedy instead of reinstatement.
Second, unlike conventional reinstatement awards
supplemented with backpay, Board-ordered front pay
(future wages without reinstatement) would, by defini-
tion, exceed make-whole relief because the payments
would be removed from any claimant’s obligation to
perform work. A backpay claimant has a duty to seek
interim employment, and an unreasonable failure to do
so reduces the amount of the employer’s liability. Front
52 93 Cong. Rec. 6661, reprinted in 2 LMRA Hist. 1577 (June 6,
1947) (analysis of H.R. 3020). See generally John E. Higgins, Jr., La-
bor Czars—Commissars—Keeping Women in the Kitchen—The Pur-
pose and Effects of the Administrative Changes Made by Taft-Hartley,
47 Cath. U. L. Rev. 941, 951–952 (1998).
53 Sec. 4(a) states in part: “Nothing in this Act shall be construed to
authorize the Board to appoint individuals . . . for economic analysis.”
This language was added to the NLRA as part of the Labor Manage-
ment Relations Act (LMRA), 61 Stat. 136, Sec. 101 (amending NLRA
Sec. 4(a)) (1947).
pay (future pay), by contrast, involves the up-front pay-
ment of a claimant’s future income stream—potentially
for a prolonged period—without any requirement that the
claimant perform work and presumably without any re-
duction if the claimant immediately obtains reemploy-
ment elsewhere. In combination, the remedies advocated
by my colleagues—traditional backpay and benefits,
combined with attorneys’ fees and future wage payments
unconnected to the performance of work—are likely to
cause or threaten substantial economic injury or financial
ruin for many employers and unions who unsuccessfully
defend against Board charges. Even if rarely imposed,
such remedies will cause a much larger number of em-
ployers and unions to conclude they cannot afford to
raise meritorious defenses to Board charges or com-
plaints based on the risk of ruinous financial liability. In
these respects, Board-awarded front pay, even though
well intentioned, would give parties a “powerful tool”54
either to thwart the Act’s requirements (by encouraging
recalcitrant employers or unions to create the type of
environment that produces a front pay award and ensures
a claimant is removed from the workplace), or to im-
properly use Board proceedings to reap advantages in
collective bargaining or union representation disputes
(where the other party cannot afford the contingent risk
of front pay on top of backpay and other potential Board-
ordered remedies).
Third, my colleagues fail to appreciate the significance
of the fact that the Board has never awarded front pay
(future pay) at any time in our long history. The Su-
preme Court’s Pollard decision indicates that courts ap-
plying Title VII and similar antidiscrimination laws
adopted an “expanded” view of front pay (defined as
future pay without reinstatement) in the 1970s, and “[b]y
1991, virtually all of the courts of appeals had recognized
that ‘front pay’ was a remedy authorized” by Title VII.55
As of 1991, the Board had interpreted and applied the
NLRA’s remedial provisions for more than 55 years
without awarding “front pay” (future pay), and the Board
persisted in this failure to award front pay for nearly 25
additional years. Throughout this extended time period,
the Board clearly endeavored to remedy unfair labor
practices with the full measure of remedial authority con-
ferred by Congress. Thus, the Board’s failure to afford
front pay even once—contrary to the widespread imposi-
tion of front pay under Title VII and other statutes—is
strong evidence that the Board has consistently viewed
such a remedy as being unavailable under the Act. See
NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416
54 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 683
(1981).
55 Pollard, 532 U.S. at 850.

HTH CORP. 733
U.S. 267, 274–275 (1974) (“[A] court may accord great
weight to the longstanding interpretation placed on a
statute by an agency charged with its administration.”);
Railway Labor Executives, 29 F.3d at 669 (court rejects
NMB’s claimed authority to initiate representation dis-
putes because, among other things, such a right was in-
voked “only in the last five years of its sixty-year histo-
ry”).
(3) The Supreme Court Decision in Pollard Does Not
Support Arguments that the Board Has Authority to
Award Front Pay in Lieu of Reinstatement. Contrary to
my colleagues’ assertion that the Supreme Court decision
in Pollard56 suggests the Board has authority to award
“front pay in lieu of reinstatement,” the Supreme Court
in Pollard clearly differentiated between the remedy my
colleagues embrace—front pay in lieu of reinstatement,
which the Board has never awarded in its entire histo-
ry—and the Board’s backpay awards, which have always
been limited by, and conditioned on, reinstatement.57
Moreover, the Supreme Court’s holding in Pollard
turned on amendments to Title VII of the Civil Rights
Act of 1964, which, the Court recognized, enlarged Title
VII’s remedial scope in relation to front pay. My col-
leagues fail to acknowledge that corresponding amend-
ments have never been made to the NLRA, which has a
remedial purpose and scope that, as noted above, was
narrowed by Congress.
As noted above, the NLRA’s remedial provision au-
thorizes the Board to order a respondent to take “such
affirmative action including reinstatement of employees
with or without backpay, as will effectuate the policies of
[the] Act.”58 By comparison, Title VII states that a court
“may enjoin the respondent from engaging in [an] unlaw-
ful employment practice, and order such affirmative ac-
tion as may be appropriate, which may include, but is
not limited to, reinstatement or hiring of employees, with
or without backpay . . . , or any other equitable relief as
the court deems appropriate.”59
The Supreme Court in Pollard explained that Congress
in 1972 “expanded” Title VII’s remedial provisions to
include the reference to “any other equitable relief as the
56 532 U.S. at 843.
57 I refer to Board-ordered backpay as being “limited by, and condi-
tioned on, reinstatement” because Board-ordered backpay has invaria-
bly been treated as supplemental to the Board requirement that the
employer offer reinstatement; and even if not accepted by the employ-
ee, the employer’s reinstatement offer stops any further accrual of
backpay liability. As noted previously, however, certain intervening
events can cause backpay liability to cease earlier (or cause an offset to
backpay liability) or can eliminate the requirement of reinstatement.
See fn. 17, supra.
58 Sec. 10(c) (emphasis added).
59 42 U.S.C. § 2000e-5(g)(1) (emphasis added).
court deems appropriate.”60 Until this 1972 amendment
occurred, the courts in Title VII cases only provided for
the NLRB’s traditional type of “backpay.”61 This tradi-
tional NLRB remedy, which the Board “called ‘back-
pay,’” only included “‘backpay’ up to the date the em-
ployee was reinstated or returned to the position he
should have been in had the violation of the NLRA not
occurred, even if such event occurred after judgment.”62
Although this NLRB-awarded “backpay” was condi-
tioned on (and limited by) reinstatement, the Pollard
Court explained that courts used the term “front pay”
when applying this traditional NLRB “backpay” remedy
because (i) the employee’s reinstatement, as ordered by
the court, obviously occurred only “after judgment” was
entered, and (ii) in “the Title VII context, this form of
‘backpay’ occurring after the date of judgment [was]
known . . . as ‘front pay.’”63
Thus, Pollard makes three things clear. First, the tra-
ditional NLRB “backpay” remedy was always limited by
Board-ordered reinstatement even though courts called it
“front pay” (since a portion of the “backpay” period oc-
curred prior to reinstatement but after the court entered
judgment).
Second, according to the Supreme Court in Pollard,
the “broad view of front pay”—i.e., front pay in lieu of
reinstatement (where courts concluded “reinstatement
was not always a viable option” and began to award
“front pay as a substitute for reinstatement” (id. at
850))—was adopted only after Congress “expanded”
Title VII’s remedial provision in 1972, which for the first
time authorized courts to award “any other equitable re-
lief as the court deems appropriate.”64 The NLRB’s re-
medial power has never been expanded to include “equi-
table relief” as deemed appropriate by the Board. Rather,
Section 10(c) continues to limit the Board’s authority to
require “affirmative action including reinstatement of
employees with or without backpay, as will effectuate the
policies of [the] Act.”65
Third, the Supreme Court in Pollard evaluated the
treatment of front pay awards under Title VII, but
acknowledged that Congress determined, in the first in-
stance, whether or not to authorize a remedy of front pay
in lieu of reinstatement. Here, the Court stated: “Had
Congress drawn . . . a line in the statute and foreclosed
front pay awards in lieu of reinstatement, we certainly
would honor that line. But, as written, the text of [Title
60 Pollard, 532 U.S. at 849–850.
61 Id.
62 Id. at 849 (emphasis added).
63 Id. (emphasis added).
64 Id. at 849–850.
65 Sec. 10(c) (emphasis added).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 734
VII] does not lend itself to such a distinction, and we will
not create one.”66 Unlike Title VII, I believe the text of
the NLRA, and the statute’s policies and purposes, only
authorize backpay awards that are conditioned on and
limited by reinstatement, and front pay awards (future
pay in lieu of reinstatement) are “foreclosed” under the
Act.67
For these reasons, as to the above issues, I respectfully
concur in part and dissent in part.

MEMBER JOHNSON, concurring in part and dissenting in
part.
There is no dispute among the Members of the Board
that these Respondents engaged in serious, and at times
egregious, unfair labor practices over a long period of
time and that some extraordinary remedies are warranted
under the circumstances of this case. I agree with my
colleagues’ finding of the violations for the reasons de-
scribed in this decision. I write separately, because in
some instances, I believe the Board majority has either
overstepped its remedial authority or unwisely and with-
out justification has piled on extraordinary and novel
remedies that were neither requested by any party nor
recommended by the administrative law judge. In the
aggregate, some of these duplicative remedies are unnec-
essary to enforce the Act’s remedial goals.
It is clear that Section 10(c) of the Act, as interpreted
by Federal courts, provides the Board with broad discre-
tion in designing appropriate, well-tailored remedies.
See Teamsters Local 122, 334 NLRB 1190, 1195 (2001),
enfd. mem. No. 01–1513 (D.C. Cir. 2003) (consent
judgment), and NLRB v. Mackay Radio & Telegraph Co.
304 U.S. 333, 378 (1938). But the Board’s discretion is
not unlimited. See Republic Steel Corp. v. NLRB, 311
U.S. 7, 11–12 (1940) (citing Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 235–236 (1938). The Board’s au-
thority does not include imposing remedies that are puni-
tive or oppressive. Id.; see also NLRB v. Seven-Up Bot-
tling Co. of Miami, 344 U.S. 344, 349–353 (1953) (find-
ing that the Board’s calculation of backpay mitigation
on a quarterly basis is within its broad remedial discre-
tion, but explaining that the Board must apply its rules in
manner that is not oppressive under the circumstances).
Thus, as discussed by my colleagues above, the Board is
simply not free to devise punitive measures, such as pen-
alties and fines, even if the Board may think it would
effectuate the Act to do so. 311 U.S. at 11. As discussed
below, I find that several of the remedies imposed by the
majority taken individually, and others taken in the ag-
66 532 U.S. at 853.
67 Id.
gregate, go beyond the limits of make-whole relief pro-
vided for by the Act and are therefore unlawfully puni-
tive.
First, I would not award litigation costs to either the
General Counsel or the Union. Such an award is beyond
the Board’s statutory authority. I join Member Misci-
marra’s reasoned discussion of the limitations of the
Board’s ability to award a fee-shifting remedy. In par-
ticular, I am persuaded by the holding in Unbelievable,
Inc. v. NLRB, 118 F.3d 795, 800–806 (D.C. Cir. 1997),
as informed by the Supreme Court’s rulings in Summit
Valley Industries v. Carpenters, 456 U.S. 717, 726
(1982), Alyeska Pipeline Service Co. v. Wilderness So-
ciety, 421 U.S. 240 (1975), and Republic Steel Corp.,
supra, that the Board is foreclosed from awarding litiga-
tion costs and attorneys’ fees by the absence of explicit
authorization in the Act. My colleagues in the majority
assert that the Board has authority to impose fee-shifting
remedies in its inherent authority to police its own pro-
cesses. I disagree. In accord with former Member
Hayes’ dissent in Camelot Terrace, 357 NLRB 1934,
1944–1945 (2011) and Member Miscimarra’s dissent
here, I find no support for the inherent authority theory,
in all its forms. Whether or not “inherent authority” is
characterized as the power of the Board to guarantee
speedy access to its processes, to indemnify against a
public injury, to deter delay in a party’s compliance, or to
react to a party’s bad faith, there still needs to be some
clear authority given to us by Congress to award attor-
neys’ fees, and we lack that here.1 Moreover, “[i]t makes
no sense to acknowledge that the broad grant of remedial
authority to fashion remedies under Section 10(c) fails to
establish the necessary ‘clear support,’” required by Su-
preme Court doctrine, but then to “divine such powers
from the vagaries of ‘inherent authority’ vested in article
III courts.” 357 NLRB 1934, at 1945 (Member Hayes,
dissenting). The Board is an administrative agency cre-
ated by statute, not an article III court. Id.
Second, although I agree with my colleagues that the
Respondents’ repeated commission of bargaining-related
unfair labor practices justifies the award of bargaining
costs to the Union in this case, I would not award the
payment of additional moneys described by my col-
leagues as costs related to the exclusion of Union repre-
1 In the abstract, some kind of “repeat user fee” in the form of an at-
torneys’ fee award might be functionally appropriate where a recalci-
trant employer (or union) requires the Agency to engage in multiple
rounds of litigation to remedy the same pattern of violations, repeated
over and over, thereby diverting public funds from the Act’s enforce-
ment in other contexts and for other parties. However, the Supreme
Court ruled squarely against this indemnity-based view of the Act in
Republic Steel, above, and, thus, it is not our place to advance such a
theory under the rubric of “inherent authority.”

HTH CORP. 735
sentatives from the premises. This remedy is both un-
precedented and unwarranted. The Board has never or-
dered this novel remedy. My colleagues’ attempt to
analogize this remedy to the award of bargaining costs is
misplaced. The Board justifies the award of bargaining
costs in response to specific, bargaining-related viola-
tions of the Act that have caused one party to incur iden-
tifiable expenses as a result of the other party’s bad faith
bargaining. See, e.g., Frontier Hotel & Casino, 318
NLRB 857, 859 (1995), enfd. in relevant part sub nom.
Unbelievable, Inc., 188 F.3d at 799–800. The Act re-
quires parties to bargain in good faith, which often re-
quires parties to incur expenses. When a party incurs
expenses by attempting to bargain in good faith in the
face of an opponent who obstructs the process, the Board
may require the offending party to reimburse the other
party’s costs to restore the status quo to the non-
offending party. The exclusion of union representatives
Mori and Labtingao from the premises, however, is not
analogous to a pervasive, bad-faith bargaining violation.
Significantly, the Act does not require the Union to en-
gage in organizing activities by accessing the Respond-
ents’ premises, as it requires parties to bargain in good
faith. Moreover, there has been no showing that the ex-
clusion of Mori and Labtingao from the premises caused
the Union to incur any additional costs and so any loss is
speculative at best. Significantly, only these two individ-
uals were excluded from the premises, not all Union rep-
resentatives, and there has been no showing that unit
employees lacked access to Union representatives. We
have found that the exclusion of Mori and Labtingao was
an unlawful unilateral change in the parties’ practice.
There is no showing that the Board’s standard remedy of
restoring the status quo and ordering the Respondents to
cease and desist engaging in the unlawful activity is in-
sufficient to remedy this violation and therefore no sup-
port for fashioning this extraordinary remedy.2
Third, because I agree that this case presents extraor-
dinary circumstances, due to the volume and variety of
violations committed by the Respondents, which have
occurred over an extended period of time in the same
workplace, as well as the Respondents’ demonstrated
2 In contrast to my colleagues’ suggestion, I do not take the position
that remedying one type of violation is less warranted than another.
Simply, I would reserve the imposition of custom-tailored new or ex-
traordinary remedies for extraordinary violations in extraordinary cir-
cumstances. Additionally, although I may agree with the majority that
the Act effectively imposes a duty to abide by a valid labor contract in
various circumstances, here we are confronted with a unfair labor prac-
tice violation where the parties themselves never had agreed on any
measuring stick for damages or remedies relating to their informal
verbal access agreement. Therefore, I find the majority’s remedy in-
herently speculative and punitive.
reluctance to abide by their obligations under the Act, I
agree that an extended notice period is warranted. In
contrast to my colleagues, however, I would limit the
extended notice and compliance period to no more than 1
year. I believe that the 3-year period is excessive and
appears punitive,3 particularly in these circumstances
where the parties’ relationship has at long last achieved
some stability under a collective-bargaining agreement. I
would not rely on the EEOC’s practices cited by the ma-
jority to support a multiyear notice period. The cases
cited in the EEOC’s website cited by the majority in-
volve consent decrees, not remedial orders imposed by
the administrative agency. The website mentioned above
expressly refers to and illustrates the EEOC’s Initiative
to Eradicate Race Discrimination in the 21st Century; as
the NLRA does not prescribe comparable overarching
society-wide remedial initiatives, these examples lend
only minimal guidance to our implementation of the
Act’s remedial goals.
In contrast to my colleagues, I would grant the Re-
spondents 28 days to accomplish the mailings of the no-
tice, the Explanation of Rights, and the Decision and
Order rather than the more limited time periods awarded
by my colleagues. Although I do not object to the mail-
ing of these materials under the circumstances, I believe
that hand delivering them directly to employees and pub-
lishing them in the Respondents’ employee handbooks
may be more effective means of getting across the
Board’s remedial messages, which may also be less on-
erous and costly.
Considering the extensive and extraordinary notice re-
quirements imposed by the Board here, and in the ab-
sence of any showing that the employees cannot be
reached by means of the postings, readings, and mailings
of notices, I would not require the Respondents to also
publish the notices in newspapers. Under the circum-
stances, I find this requirement to be both excessive and
punitive.
Finally, I would not reach the issue of front pay what-
soever, but would defer the issue to a future case, if one
is presented to the Board. I join my colleagues in adopt-
ing the traditional reinstatement and make-whole reme-
dies for losses sustained by Villanueva because of the
discriminatory discharge alleged in the complaint before
us, as recommended by the administrative law judge. I
concur with the majority’s stated decision to defer ruling
on whether and under what circumstances the Board
might have authority to award front pay in lieu of rein-
3 This 3-year period is as long as a typical collective-bargaining
agreement, and the Board lacks the authority to simply impose bargain-
ing agreements on the parties. See, e.g., H. K. Porter Co. v. NLRB, 397
U.S. 99, 102–109 (1970).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 736
statement, an issue that was not raised at any time in this
litigation. I do not join my colleagues’ extended discus-
sion of possible rationales or policy considerations for
claiming authority to award front pay in this case or a
hypothetical one. That discussion goes far beyond what
is necessary to resolve this case and to set aside the ques-
tion for the future. I would simply leave any considera-
tion of the efficacies of this novel remedial approach to a
future case, if one is presented to the Board, in which
parties and other stakeholders have actually been afford-
ed an opportunity to consider and fully brief the issues.
Nor do I join my colleagues’ speculation about Villanue-
va’s past or future hardships. I would not prejudge the
evidence in a future compliance proceeding by passing
now on claims not yet made.
In these substantive but limited respects, I dissent from
the Board’s remedial order today.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED AND MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to bargain in good faith
with the Union, International Longshore and Warehouse
Union, Local 142, as the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:

All full-time, regular part-time, and regular on-call
concierge, concierge II, concierge II night auditor,
guest service agent I, guest service II, room control
clerk, bell help, bell sergeant, door attendant, head door
attendant, senior bell sergeant, working bell captain,
parking attendant, parking valet, FIT reservation clerk,
FIT reservation clerk I, FIT reservation clerk II, junior
reservation clerk, senior FIT reservation, senior reser-
vation clerk, housekeeper IA, housekeeping clerk, qual-
ity control, housekeeper IB, housekeeper II, house-
keeper III, laundry attendant I, seamstress, bushelp,
hosthelp, waithelp, banquet bus help, head banquet
captain, banquet captain, head banquet porter, assistant
head banquet porter, banquet porter, banquet wait help,
purchasing clerk, senior store keeper, butcher, cook I,
cook II, cook III, cook IV, pantry, pantry I, pantry II,
head buffet runner, buffet foodrunner, head steward,
utility steward, cafeteria server, Aloha Center attendant,
relief assistant manager (Oceanarium Restaurant), head
banquet bartender, banquet bartender, head bartender,
assistant head bartender, bartender, pastry cook I, pas-
try cook II, pastry cook III, food and beverage audit in-
come, night auditor, data processing clerk, senior cost
control clerk, food and beverage cashier, network sup-
port specialist, diver level I, diver level II, diver level
III, diver level IV, PBX operator, lead operator,
maintenance 2nd, maintenance 1st, mechanic foreman,
assistant/general maintenance, maintenance trainee,
senior maintenance trainee, maintenance utility, assis-
tant gardener, assistant head gardener and gardener
employed by the Employer at the Pacific Beach Hotel,
located at 2490 Kalakaua Avenue, Honolulu, Hawaii,
but excluding the president, the corporate general man-
ager, corporate director of hotel operations, director of
human resources, director of finance, director of sales
and marcom (sic), director of revenue management, di-
rector of Far East Sales, director of food and beverage,
director of facilities management, Pacific Beach Hotel
director of front office services, director of IT, corpo-
rate controller, operations controller, financial control-
ler, head cashiers (food and beverage), executive
housekeeper, assistant executive housekeeper, restau-
rant managers, banquet managers, sous chefs, chief
steward/stewards managers, Aloha Coffee Shop Man-
ager, income auditor manager, sales administrative as-
sistant, PBC FE/concierge, chief engineer, landscaping
manager, and the accounts receivable manager, manag-
ers, assistant managers, administrative assistant to the
director of sales and marketing, purchasing agent em-
ployees, confidential employees, guards and/or watch-
persons and supervisors as defined in the Act.
WE WILL NOT unilaterally change your terms and con-
ditions of employment during the course of collective
bargaining without reaching a lawful impasse with the
Union, or at any time without first notifying the Union
and giving it an opportunity to bargain, including but not
limited to restricting the exercise of previously-existing
access rights of union agents to the hotel property, in-
creasing housekeeping assignments in both the Beach
and Ocean Towers, and the cessation of matching 401(k)
contributions.
WE WILL NOT refuse to bargain in good faith with the
Union by failing and refusing to furnish it with infor-
mation the Union has requested that is relevant and nec-
HTH CORP. 737
essary to the Union’s performance of its functions as the
collective-bargaining representative of our unit employ-
ees, including but not limited to 401(k) plans and em-
ployees who participated in the plans, grievances and
discipline and related documents, work schedules and
assignments, awards, benefits, financial data, and other
terms and conditions of employment.
WE WILL NOT warn, suspend, or discharge you for
supporting the Union, or any other labor organization, or
because you engage in protected concerted activities.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT deny union representatives access to our
facility at variance with past practice, prior agreements,
or the terms of collective-bargaining agreements.
WE WILL NOT undermine the Union by telling you that
union agents are barred from entering the facility.
WE WILL NOT threaten your union agents with removal
from the public sidewalk for passing out union literature
or other protected concerted activity.
WE WILL NOT intimidate your union agents regarding
lawful leafleting.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, and twice weekly for a period of 8 weeks, publish
in two publications of general local interest and circula-
tion, chosen by the Board, copies of this notice, signed
by our regional vice president of operations, Robert Min-
icola, or his successor, and an Explanation of Rights pro-
vided by the Board regarding your rights under Federal
labor law.
WE WILL, within 14 days from the date of the Board’s
Order, mail a copy of this notice and the Explanation of
Rights to the homes of all current employees, supervi-
sors, and managers, and all former employees employed
by us at any time since November 24, 2009. WE WILL
maintain proofs of mailing as required by the Board.
WE WILL, no later than 21 days and no earlier than 14
days from the date of the Board’s Order, mail a copy of
its Decision and Order to all current employees, supervi-
sors, and managers, and all former employees employed
by us at any time since November 24, 2009, and WE
WILL, within 7 days from the date of hiring, mail a copy
of the Board’s Decision and Order to all newly hired
employees, supervisors, and managers. Mailings shall be
sent to new employees for a period of 3 consecutive
years from the date of the Board’s Order. The mailing
shall include a copy of a cover letter, provided by the
Board, explaining that the Decision and Order are being
mailed pursuant to the Board’s Order and referencing the
notice and the Explanation of Rights previously mailed
to you. WE WILL maintain proofs of mailings as required
by the Board.
WE WILL, for a period of 3 consecutive years from the
date of the Board’s Order, provide a copy of this notice
and Explanation of Rights to all new employees, supervi-
sors, and managers, within 7 days from the date on which
their employment by us begins. WE WILL retain a copy
of these documents provided to each individual in our
records for the 3-year period, along with receipts and
documentation evidencing the date and manner of their
distribution as required by the Board.
WE WILL, within 14 days after service by the Region,
post this notice and Explanation of Rights at our hotel in
Honolulu, Hawaii, for a period of 3 consecutive years.
In addition, WE WILL post the notice and the Explanation
of Rights on our intranet and any other electronic mes-
sage area, including email, where we generally com-
municate with you.
WE WILL, within 14 days from the date of the Board’s
Order, convene meetings at our Honolulu, Hawaii hotel
during working time, at which this notice and the
Board’s Explanation of Rights will be read to you, your
supervisors, and managers. The meetings shall be held
in the presence of a Board agent, and this notice and the
Board’s Explanation of Rights shall be read by Robert
Minicola (or his successor) or, at our option, by the
Board agent in the presence of Minicola (or his succes-
sor), Corine Watanabe, or John Hayashi. At least one of
these three individuals (or their successors) must be in
attendance at each reading, and each of the three individ-
uals must attend at least one reading. WE WILL maintain
sign-in sheets for supervisors and managers at these read-
ings, give them copies of the notice and the Explanation
of Rights at the meeting, and maintain receipts as re-
quired by the Board. In addition, WE WILL afford the
Union reasonable notice and opportunity to have a repre-
sentative present when this notice and the Explanation of
Rights are read to employees. Translation shall be made
available for anyone whose language of fluency is other
than English. The meetings shall be for the above-stated
purpose only. If you cannot attend the meeting to which
you have been assigned, you will be able to attend anoth-
er meeting during which the same reading shall take
place under the same conditions. WE WILL allow you to
attend the meeting without penalty or adverse employ-
ment consequences, either financial or otherwise.
WE WILL give notice to and, on request, bargain with
the Union as your exclusive collective-bargaining repre-
sentative before implementing any changes to terms and
conditions of employment that are not contained in the
collective-bargaining agreement, including but not lim-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 738
ited to access to our property by union agents, payments
to your 401(k) plans, and changed or increased room
assignments for housekeeping employees. For any term
and condition of employment contained in the collective-
bargaining agreement, WE WILL obtain the Union’s con-
sent before implementing changes to any such term.
WE WILL rescind any unilateral change limiting the
Union’s access to our property that is at variance with
past practice or the parties’ agreements and WE WILL no-
tify union agents Dave Mori and Carmelita Labtingao,
both in writing and orally, that they are no longer barred,
and that we will not deny union representatives access at
variance with past practice or the parties’ agreements.
This will not enlarge or diminish any contractual rights
secured by the Union in subsequent negotiations with us.
WE WILL, within 14 days from the date of the Board’s
Order, rescind our unlawful unilateral changes in your
terms and conditions of employment, including but not
limited to the increase in housekeeping assignments in
both the Beach and the Ocean Towers and the cessation
of matching 401(k) contributions. This will not diminish
or enlarge any contractual rights secured by the Union in
subsequent negotiations with us.
WE WILL make Rhandy Villanueva whole for any loss
of earnings or other benefits suffered as a result of our
discrimination against him, less any net interim earnings,
plus interest.
WE WILL make whole, with interest, all affected unit
employees, including Marissa Julian, and former unit
employees for any loss of earnings and other benefits
suffered as a result of our unlawful unilateral change in
housekeeping room assignments.
WE WILL compensate all affected unit employees and
former unit employees for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and WE
WILL file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar
quarters for each unit employee.
WE WILL reimburse all affected unit employees and
former unit employees for matching contributions to
their 401(k) plans for the period January 1, 2010, to May
1, 2010, and make them whole for any other losses suf-
fered as a result of the unlawful change.
WE WILL, within 14 days from the date of the Board’s
Order, offer Rhandy Villanueva full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL furnish to the Union in a timely manner all
information requested by it in November 2009 and in
April, May, June, July, and August 2010, including but
not limited to full data regarding our financial state.
WE WILL pay to the General Counsel the costs and ex-
penses incurred by him in the investigation, preparation,
presentation, and conduct of this proceeding before the
Board, including reasonable counsel fees, salaries, wit-
ness fees, transcript and record costs, printing costs, trav-
el expenses and per diems, and other reasonable costs
and expenses.
WE WILL pay to the Union the costs and expenses in-
curred by it in the investigation, preparation, presenta-
tion, and conduct of this proceeding before the Board,
including reasonable counsel fees, salaries, witness fees,
transcript and record costs, printing costs, travel expens-
es and per diems, and other reasonable costs and expens-
es.
WE WILL reimburse the Union for its costs and expens-
es incurred in collective bargaining for all negotiations
stemming from the violations found by the Board, in-
cluding, for example, reasonable salaries, travel expens-
es, and per diems.
WE WILL pay to the Union the nonlitigation, nonbar-
gaining expenses resulting from our unfair labor practic-
es as found by the Board. Such expenses may include,
but are not limited to, additional costs in communicating
with you, holding meetings off-site due to our unlawful
refusal to allow union agents on our property, and main-
taining cohesion in the face of our violations when, be-
cause of our misconduct, the Union was unable to fully
respond to your needs.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any references to the un-
lawful written warning, suspension, and termination im-
posed on Rhandy Villanueva, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the warning, suspension, and termination
will not be used against him in any way.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any references to the un-
lawful discipline imposed on Marissa Julian and any oth-
er employees in connection with our unlawful increase in
housekeeping assignments, and WE WILL within 3 days
thereafter, notify them in writing that this has been done
and that the discipline will not be used against them in
any way.
WE WILL, for a 3-year period following the date of the
Board’s Order, allow the Board or any of its duly-
authorized representatives to obtain at any time, in both
oral and documentary forms, discovery and evidence
from us, our officers, agents, successors or assigns, em-
ployees, or former employees having knowledge con-
cerning the posting and maintenance of the notice and
the Explanation of Rights as well as the mailing of those
documents and the Board’s Decision and Order to all
HTH CORP. 739
new employees and new supervisors and managers in
compliance with the Board’s Order. WE WILL make
available, for inspection by the Board, proof of mailings,
receipts, and sign-in sheets, as required.

HTH CORPORATION, PACIFIC BEACH
CORPORATION, AND KOA MANAGEMENT, LLC,
A SINGLE EMPLOYER, D/B/A PACIFIC BEACH
HOTEL

The Board’s decision can be found at
http://www.nlrb.gov/case/37-CA-007965 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington D.C.
20570 or by calling (202) 273-1940.

APPENDIX B
EXPLANATION OF RIGHTS
POSTED, MAILED, AND PUBLISHED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

Employees covered by the National Labor Relations
Act have the right to join together to improve their wages
and working conditions, including by organizing a union
and bargaining collectively with their employer, and also
the right to choose not to do so. This Explanation of
Rights contains important information about your rights
under this Federal law. The National Labor Relations
Board has ordered Pacific Beach Hotel to provide you
with the Explanation of Rights to describe your rights
and to provide examples of illegal behavior.

Under the National Labor Relations Act, you have the
right to:
• Organize a union to negotiate with your em-
ployer concerning your wages, hours, and work-
ing conditions.
• Support your union in negotiations.
• Discuss your wages, benefits, other terms and
conditions of employment, and collective-
bargaining negotiations with your coworkers or
your union.
• Take action with one or more coworkers to im-
prove your working conditions.
• Strike and picket, depending on the purpose or
means used.
• Choose not to do any of these activities.

It is illegal for your employer to:
• Threaten you with job loss or loss of pay or
benefits, or threaten to close your workplace, if
you support a union or act in support of collec-
tive bargaining.
• Question you about your union sympathies or
activities, or the sympathies or activities of oth-
er employees, in circumstances where that ques-
tioning tends to interfere with, restrain or coerce
you in the exercise of the rights listed above.
• Promise you benefits, such as promotions, pay
raises, or better treatment, in order to discourage
your support for the union or for collective bar-
gaining.
• Make unilateral changes in your terms and con-
ditions of employment without first providing
your union with notice of the proposed changes
and affording the union an opportunity to bar-
gain about the changes, except in certain situa-
tions.
• Warn, suspend, discharge, transfer or reassign
you to another shift or more difficult work be-
cause you have supported the union or acted in
support of collective bargaining. It is also ille-
gal for your employer to threaten to do any of
these things.
• Fire, lay off, transfer or reassign you to another
shift or to more difficult work, or take other ad-
verse action against you because you have filed
an unfair labor practice charge or participated in
an investigation conducted by the National La-
bor Relations Board. It is illegal for your em-
ployer to threaten to do any of these things.
• Spy on your activities in support of your union
or collective bargaining. There are rules that
govern your employer’s conduct during col-
lective bargaining with your union.
• Your employer must meet with your union at
reasonable times to bargain in good faith about
wages, hours, vacation time, insurance, safety
practices and other mandatory subjects.
• Your employer must participate actively in the
negotiations with a sincere intent to reach an
agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740
• pon a request by the union, your employer is re-
quired to provide information to the union that it
needs to do its job as your representative.
• Your employer must continue to bargain with
the union after the contract expires and must not
change existing working terms and conditions
while bargaining continues.
• Your employer must honor any collective-
bargaining agreement that it reaches with your
union.
• Your employer cannot retaliate against you if
you participate or assist your union in collective
bargaining.
Illegal conduct will not be permitted. The National
Labor Relations Board enforces the Act by prosecuting
violations. If you believe your rights or the rights of oth-
ers have been violated, you should contact the NLRB
promptly to protect your rights, generally within 6
months of the unlawful activity. You may ask about a
possible violation without your employer or anyone else
being informed that you have done so. The NLRB will
conduct an investigation of possible violations if a charge
is filed. Charges may be filed by any person and need
not be filed by the employee directly affected by the vio-
lation.
You can contact the NLRB’s regional office, located
at: 901 Market Street, Suite 400, San Francisco,
California 94103–1735
Or you can contact the NLRB by calling:
415–356–5130
For more information about your rights and about the Na-
tional Labor Relations Board and the Act, visit the Agency’s
Website: http://www.nlrb.gov.

This is an official Government Notice and must not
be defaced by anyone.
[TRANSLATIONS]

APPENDIX C

The enclosed Decision and Order is a ruling by the Na-
tional Labor Relations Board, a federal agency responsi-
ble for administering the National Labor Relations Act.
The Decision and Order describes violations of that Act
which the Board found were committed by HTH
CORPORATION, PACIFIC BEACH CORPORATION, AND KOA
MANAGEMENT, LLC, A SINGLE EMPLOYER, D/B/A PACIFIC
BEACH HOTEL, in Case 37–CA–007965 et al. This offi-
cial document has been mailed to you in accordance with
the remedy ordered by the Board in the enclosed Deci-
sion and Order, dated October 24, 2014.
You should have already received a copy of the Notice
and Explanation of Rights which was required to be
mailed to you within 14 days from the date of the
Board’s Order. These documents are intended to help
explain your rights under the National Labor Relations
Act and Pacific Beach Hotel’s obligations to you under
the Board’s ruling.
If you have any questions, call 415–356–5130.
/s/
Regional Director Region 20

Dale K. Yashiki, Esq. and Trent K. Kakuda, Esq., for the Acting
General Counsel.
Wesley M. Fujimoto, Esq. and Ryan E. Sanada, Esq. (Imanaka
Kudo & Fujimoto), for the Respondent.
Dave K. Mori, Oahu Division Director, ILWU, L-142, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Honolulu, Hawaii, on 16 days between February
16, 2011, and April 28, 2011. The complaint in Case 37–CA–
008097, as amended, issued on November 29, 2010, and the
consolidated complaint, as amended, in Cases 37–CA–007965,
et al., issued on January 28, 2011, by the Regional Director for
Region 20.
On April 4, 2011, given the common issues of fact and law,
the common parties, and in order to avoid conflicting decisions
and for the sake of judicial economy, without objection
I consolidated the complaint in Case 37–CA–008097 with the
consolidated complaint in Cases 37–CA–007965, et al.
The complaint in Case 37–CA–008097 alleges that HTH
Corporation, Pacific Beach Corporation, and KOA Manage-
ment, LLC, a single employer, d/b/a Pacific Beach Hotel (Re-
spondent) violated Section 8(a)(1) and (3) of the National La-
bor Relations Act (the Act) by issuing verbal warnings to its
employee Rhandy Villanueva, by suspending and by terminat-
ing Villanueva.
The consolidated complaint in Cases 37–CA–007965, et al.,
as amended,1 alleges that Respondent violated Section 8(a)(1)
of the Act by engaging in surveillance of employees’ union
activities and by announcing to employees that Union Repre-
sentatives Dave Mori and Carmelita Labtingao were prohibited
from entering Respondent’s property.
The consolidated complaint in Cases 37–CA–007965, et al.
also alleges that Respondent violated Section 8(a)(1) and (5) of
the Act by ceasing to match employee contributions to its
401(k) plan, by banning Union Representatives Dave Mori and
Carmelita Labtingao from Respondent’s facility, by failing to
furnish and unreasonably delaying in furnishing information to
the Union necessary and relevant to the Union’s performance of
its duties as exclusive collective-bargaining representative, and
by unilaterally changing terms and conditions of employment
without providing the Union notice and an opportunity to bar-
gain with respect to the alleged changes.
1 At the hearing counsel for the General Counsel moved to amend
the consolidated complaint to remove pars. 11(a), (4) and (d). There
being no objection, the motion was granted.

HTH CORP. 741
Respondent filed timely answers to both the complaint and
consolidated complaint stating it had committed no wrongdo-
ing.
FINDINGS OF FACT
Upon the entire record herein, including the briefs from the
counsel for the Acting General Counsel (the GC) and Respond-
ent, I make the following findings of fact.
I. JURISDICTION
Respondent in its answers admitted that HTH Corporation is
a Hawaii corporation with headquarters in Honolulu, Hawaii,
that Pacific Beach Corporation is a Hawaii corporation with
headquarters in Honolulu, Hawaii, that Pacific Beach Corpora-
tion is the sole member of KOA Management, admitted that
Pacific Beach Corporation has been engaged in the business of
operating the Pacific Beach Hotel, providing food and lodging
in Honolulu, Hawaii, and that Pacific Beach Corporation in
operating the Pacific Beach Hotel annually earned in excess of
$500,000 and purchased and received at the Pacific Beach Ho-
tel products, goods, and material valued in excess of $5000
which originated from points outside the State of Hawaii.
Respondent denied KOA Management is a Delaware limited
liability company or that it received revenues from the Pacific
Beach Hotel. Respondent denied that HTH Corporation, Pacif-
ic Beach Corporation, or KOA Management have been affiliat-
ed business enterprises with common officers, ownership direc-
tors, management, and supervision, have a common labor poli-
cy, have shared facilities or have held themselves out to the
public as a single-integrated business enterprise. Respondent
denied that HTH Corporation, Pacific Beach Corporation, or
KOA Management constitute a single-integrated business en-
terprise and a single employer.
At the hearing the parties stipulated2 that the single-
employer allegation herein was litigated by the parties in Cases
37–CA–007311, et al. before Administrative Law Judge James
Kennedy and that the parties would refer to the transcript of
that proceeding to determine the single-employer issue, herein.
In his decision, Judge Kennedy found that the three entities in
his case and herein constitute a single employer.
Following the close of the hearing herein, the Board affirmed
Judge Kennedy’s decision in HTH Corp. d/b/a Pacific Beach
Hotel, 356 NLRB 1397 (2011), herein called HTH I. In HTH I,
supra at 1401, the Board found that:

Respondents HTH Corporation, Pacific Beach Corporation
and KOA Management, LLC, together doing business as Pa-
cific Beach Hotel, constitute a single employer engaged in
commerce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.

I will only give a brief history of the management structure
at the Pacific Beach Hotel (the hotel) as that has been exten-
sively detailed previously by both the Board in HTH I and
Judge Kennedy. Since at least 2002, the various enterprises
herein were operated by Herbert T. Hayashi. Much of the ho-
tel’s business has come from Japan where Herbert Hayashi’s
nephew, John Hayashi, serves as the hotel’s agent. Herbert
2 Jt. Exh. 1.
died in 2005, leaving his share of the business to his daughter,
Corine Hayashi. C. Hayashi has since married and her last
name is now Watanabe. Since about December 2003, Robert
M. (Mick) Minicola has been employed by both HTH and Pa-
cific Beach Corporation. Minicola was hired as regional gen-
eral manager, to oversee the King Kamehameha Kona Beach
Hotel, the Pagoda Hotel and Floating Restaurant, as well as the
Pacific Beach Hotel. Later, Minicola became the regional vice
president of operations for both Pacific Beach Corporation and
HTH. He reports to Corine Watanabe. She is the chief execu-
tive officer, though she is corporate vice president for both
HTH and Pacific Beach Corporation. Watanabe did not testify
in either this matter or Judge Kennedy’s case. Christine Ko was
Respondent’s director of housekeeping, Charlene Lam was
Respondent’s housekeeping manager, Roselind Mad was Re-
spondent’s housekeeping clerk, Eric Hangai was Respondent’s
security director, Charles Sayles was Respondent’s restaurant
operations manager, and Margaret Yang was Respondent’s
recruiting and training manager. Ko did not testify in this case.
Since there has been virtually no change in the labor rela-
tions policies, ownership, or the management structure of Re-
spondents3 since the trial before Judge Kennedy or the Board’s
decision in HTH I, I conclude that HTH, PBC, and KOA (Re-
spondent) continue to constitute a single employer4 and are
engaged in commerce within the meaning of the Act.
II. LABOR ORGANIZATION
Respondent admitted, the Board has found, and I find that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s History with the Board
Respondent herein operates the Pacific Beach Hotel (the ho-
tel) on Waikiki Beach in Honolulu, Hawaii. The hotel consists
of two towers, the Ocean and Beach Towers bordered by Liliu-
okalani and Kalakaua, Kuhio and Kealohilani Avenues. Re-
spondent also operates the Oceanarium Restaurant in the hotel.
There is a parking structure attached to the hotel that can be
accessed from both Kuhio and Liliuokalani and Kalakaua Ave-
nues. The entrances to the parking structure have been the site
of many union handbilling activities directed at Respondent.
This case is yet a further chapter in Respondent’s attempt to
impede the rights of employees of the Pacific Beach Hotel to
select and be represented by International Longshore and
Warehouse Union, Local 142 (the Union). The Union’s organ-
izing drive was begun in 2002. The first NLRB election was
conducted on July 31, 2002, and was overturned by the Board
based on coercive interrogation of employees and maintenance
of an overly broad no-solicitation rule by Respondent HTH
Corporation. Pacific Beach Corp., 342 NLRB 372 (2004). A
second election was conducted on August 24, 2004. Among
other things, the second election involved challenged ballots in
a sufficient number to affect the outcome. The Board in Pacific
Beach Corp., 344 NLRB 148 (2005), ruled Respondent inter-
3 Jt. Exh. 1.
4 Central Mack Sales, 273 NLRB 1268, 1271–1272 (1984).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742
fered with employee free choice in the 2004 rerun election by
granting employees promotions and raises during the critical
period. The Board directed that first, certain challenged ballots
should be opened and counted, and second, in the event the
revised tally resulted in a majority favoring union representa-
tion, a certification of representative was to be issued; if it did
not, the Union’s objections were to be sustained, and a third
election conducted. The ballots were opened, counted, and a
revised tally issued showing that the Union had won by one
vote. Accordingly, on August 15, 2005, the Regional Director
issued a certificate of representative in favor of the Union in the
following unit:

All full-time, regular part-time, and regular on call concierge,
concierge II, concierge II night auditor, guest service agent I,
guest service II, room control clerk, bell help, door attendant,
head door attendant, senior bell sergeant, working bell cap-
tain, parking attendant, parking valet, FIT reservation clerk,
FIT reservation clerk I, FIT reservation clerk II, junior reser-
vation clerk, senior FIT reservation, to senior reservation
clerk, housekeeper IA, housekeeping clerk, quality control,
housekeeper I, housekeeper II, housekeeper III, laundry at-
tendant I, seamstress, bushelp, waithelp, banquet bus help,
head banquet captain, banquet captain, head banquet porter,
assistant head banquet porter, banquet porter, banquet wait
help, purchasing clerk, senior store keeper, butcher, cook I,
cook II, cook III, cook IV, pantry, pantry I, pantry II, head
buffet runner, buffet foodrunner, head steward, utility stew-
ard, cafeteria server, Aloha Center attendant, relief assistant
manager (Oceanarium Restaurant), head banquet bartender,
banquet bartender, head bartender, assistant head bartender,
bartender, pastry cook I, pastry cook II, pastry cook III, food
and beverage audit income, night auditor, data processing
clerk, senior costs control clerk, food and beverage cashier,
network support specialist, diver level I, diver level II, diver
level III, diver level IV, PBX operator, lead operator, mainte-
nance 2nd, maintenance 1st, mechanic foreman, assis-
tant/general maintenance, maintenance trainee, senior mainte-
nance trainee, maintenance utility, assistant gardener, assistant
head gardener and gardener employed at the Pacific Beach
Hotel, located at 2490, Kalakaua Avenue, Honolulu, Hawaii,
but excluding the president, the corporate general manager,
corporate director of hotel operations, director of human re-
sources, director of finance, director of sales and marcom (sic)
[marketing], director of revenue management, director of Far
East Sales, director of food and beverage, director of facilities
management, Pacific Beach Hotel director of front office ser-
vices, director of IT, corporate controller, operations control-
ler, financial controller, head cashiers (food and beverage),
executive housekeeper, assistant executive housekeeper, res-
taurant managers, banquet managers, sous chefs, chief stew-
ard/stewards managers, Aloha Coffee Shop Manager, income
auditor manager, sales administrative assistant, PBC
FE/concierge, chief engineer, landscaping manager, and the
accounts receivable manager, managers, assistant managers,
administrative assistant to the director of sales and marketing,
purchasing agent employees, confidential employees, guards
and/or watchpersons and supervisors as defined in the Act.

It should be noted that the employer to whom the certification
ran was HTH.
Respondent and the Union bargained between November
2005 and December 4, 2006. On January 1, 2007, PBHM, who
the Board found is an agent of Respondent, pursuant to an
agreement with KOA Management began operating the hotel
and bargaining with the Union. In early August 2007, Minicola
notified PBHM that it was canceling the management agree-
ment effective December 1, 2007, PBHM changed its bargain-
ing team. As a result, PBHM and the Union memorialized a
number of the tentative agreements which they had reached. It
also established a daily housekeeping limitation providing that
housekeepers would be assigned 16 rooms per day in the Ocean
Tower and 15 rooms per day in the Beach Tower.
As of January 1, 2008, Respondent refused to recognize or
bargain with the Union.
Pursuant to a complaint issued by the Regional Director for
Region 20 on September 30, 2008, in HTH Corporation, Pacific
Beach Corporation and KOA Management, LLC, a single em-
ployer, d/b/a Pacific Beach Hotel, Cases 37–CA–007311, et al.,
Judge Kennedy conducted a hearing and issued his decision on
September 30, 2009. JD(SF)–35–09.
Meanwhile, on January 7, 2010, the Regional Director for
Region 20 filed a petition with the United States District Court
for the District of Hawaii. (CIV. NO. 10-00014JMS/LEK)
seeking injunctive relief pursuant to Section 10(j) of the Act
against HTH Corporation, Pacific Beach Corporation and
KOA Management, LLC, a single employer, d/b/a Pacific
Beach Hotel. On March 29, 2010, United States District Court
Judge Michael Seabright granted the Region’s petition for in-
junctive relief and ordered Respondent, inter alia, to cease
withdrawing recognition from the Union, cease refusing to
bargain in good faith with the Union, unilaterally changing
terms and conditions of employment without giving notice to
and bargaining with the Union. Judge Seabright also ordered
Respondent to resume contract negotiations and honor all tenta-
tive agreement entered into from the point Respondent and the
Union, and PBHM and the Union, left off negotiations on No-
vember 30, 2007, . . . provided, however, that the parties may in
good faith reopen negotiations on any tentative agreement that
has been validly affected by a change in economic or other
circumstances; and to reinstate Ruben Bumanglag, Darryl
Miyashiro, Virginia Recaido, Virbina Revamonte, and Rhandy
Villanueva to their former job positions. 699 Fed. Supp.2d
1176 (Dist of Hawaii 2010).
As noted above, Judge Kennedy’s decision was affirmed by
the Board at 356 NLRB No. 182 (2011). The Board at 5–6
found Respondent violated Section 8(a)(1) of the Act by prom-
ulgating overbroad rules, by polling employees concerning
their union activities, by threatening employees for being asser-
tive during the collective-bargaining process, and by threaten-
ing employees with the loss of their jobs if the Hotel had to
close because of union boycotts.
The Board found Respondent violated Section 8(a)(3) and
(1) of the Act by discharging employees Keith Kapena Kana-
iaupuni, Darryl Miyashiro, Todd Hatanaka, Rhandy Villanueva,
Virginia Recaido, Ruben Bumanglag, and Virbina Revamonte
because of their union activities.
HTH CORP. 743
The Board found Respondent engaged in a litany of viola-
tions of Section 8(a)(5) and (1) of the Act by bargaining with
the Union with no intention of reaching an agreement, by using
PBHM as a middleman as part of a scheme to disguise their
decision to deprive the employees of union representation and
to escape their obligation to collectively bargain in good faith,
by withdrawing recognition of the Union as the 9(a) representa-
tive of the unit employees, by unilaterally and without bargain-
ing with the Union promulgating rules through employment
offers and/or the issuance of a new employee handbook, by
unilaterally and without bargaining with the Union changing
housekeepers’ workloads by adding 2 additional rooms to clean
per day, from 16 to 18 rooms per day in the Ocean Tower and
from 15 to 17 in the Beach Tower, by unilaterally and without
bargaining with the Union imposing new conditions of em-
ployment on their employees, including requiring them to apply
for their own jobs and treating them as new employees, requir-
ing drug tests, and imposing a 90-day probationary period, by
unilaterally and without bargaining with the Union closing the
Shogun Restaurant and discharging an undetermined number of
employees who worked in that restaurant, by unilaterally and
without bargaining with the Union laying off hotel employees,
by discharging employees Keith Kapena Kanaiaupuni, Darryl
Miyashiro, Todd Hatanaka, Rhandy Villanueva, Virginia Re-
caido, Ruben Bumanglag, and Virbina Revamonte without
bargaining with the Union, by unilaterally and without bargain-
ing with the Union reassigning certain employees to different
positions and unilaterally lowering their wages, by unilaterally
and without bargaining with the Union implementing wage
increases for both tipping and non tipping category employees,
and by refusing to provide relevant and necessary information
to the Union concerning the legal relationship between PBHM
and the Respondent, information concerning the management
agreement between PBHM and the Respondent, and infor-
mation concerning the Respondent’s resumption of manage-
ment of the Hotel and changes to unit employees’ terms and
conditions of employment that the Respondent wished to effect
after they resumed management of the Hotel.
B. Case 37–CA–008097
1. The written warning to Villanueva
In this case in complaint paragraph 6(a) the General Counsel
alleges that Respondent issued a written warning to Villanueva
because of his union activity.
The Board found in HTH I, that Villanueva was terminated
unlawfully because of his union activities in December 2007.
He was reinstated pursuant to Judge Seabright’s Order on April
12, 2010. Villanueva worked in the housekeeping department
as a houseman. He had been employed by the Hotel for over 14
years. As a houseman, Villanueva performed a variety of tasks
in support of the housekeeping staff, assisting with room clean-
ing as called upon, hallway and public area custodial work, and
as a runner providing services (such as delivering rollaway
beds) to hotel guests. He was classified for payroll purposes as
a housekeeper II. Villanueva was selected by the housekeeping
staff to be one of its representatives on the Union’s negotiating
committee. He served continuously on that committee from its
inception in 2005 through the changeover in December 2007.
During that timeframe he missed only two bargaining sessions.
He often sat directly across the table from Minicola. In addi-
tion, he manned the Union’s information booth on Kuhio Ave-
nue behind the Hotel. On one occasion he noticed Minicola
observing him as he attended rallies in front of the Hotel. Vil-
lanueva was terminated on November 30, 2007, pursuant to the
Pacific Beach Corporation again taking operational control of
the Hotel from PBHM. The Board agreed with Judge Kennedy
that the only conclusion that can be reasonably drawn is that
Respondent chose not to recall Villanueva because of his union
activism, including his long participation as a member of the
Union’s negotiating committee.
Pursuant to District Court Judge Seabright’s March 29, 2010
order, Respondent reinstated Villanueva in April 2010. During
Villanueva’s 28-month hiatus working for Respondent, he was
employed by the Union as an organizer at Respondent’s hotel.
After his reinstatement, Villanueva continued his union activi-
ties, including attending negotiations, attending membership
meetings and talking to employees during breaks about the
Union.
Villanueva was reinstated as a housekeeper II, cleaning
rooms and delivering supplies to maid’s closets. Prior to his
28-month hiatus, Villanueva did not clean rooms and he did not
deliver supplies to maid’s closets but for a brief period in 2003.
After his reinstatement, Villanueva received 1 day’s training in
his new duties from fellow employee Larry Andrade but was
never given any written rules concerning his duties.
Villanueva and other housekeepers I and II completed a pro-
duction log5 for each shift they worked. A production log must
be completed for each shift worked. Villanueva filled out a
production log while he worked as a housekeeper II/runner in
2007, and he completed production logs upon his reinstatement
in 2010. In April 2010, Christine Ko, Respondent’s director of
housekeeping, told Villanueva that she was checking his pro-
duction logs and that he was doing a good job.
In early May 2010, Ko told Villanueva that he did not ser-
vice a room. The production log reflected that he had cleaned
the room. Ko told Villanueva he should have put his time in
and out of the room on his production log.
In the last week of April 2010, at a meeting with Ko, House-
keeping Manager Sandy Lam (Lam) and Housekeeping Super-
visor Bobbi Hind (Hind), Ko told Villanueva that he should not
have put a case of toilet paper on the top shelf of a maid’s clos-
et. This was on a floor that maid Lolita Lucas worked. Vil-
lanueva said he put the case of toilet paper on the top shelf
because there was no room to put it anywhere else. In an ex-
ample of Respondent making up rules on the fly, Ko advised
Villanueva that in the future, if he finds that there is no room on
the bottom shelf for a case of toilet tissue ordered by the room
attendant, he should not deliver the toilet tissue, and that he
should note on the supplies form that there was not enough
room on the bottom shelf to make the delivery as requested.
Ko and Hind informed Villanueva that they would inform the
room attendants that if the area for the toilet tissue is not clear,
the toilet tissue will not be delivered. Hind told Villanueva the
next day that she had already spoken with the room attendants.
5 GC Exhs. 14, 21.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744
A new rule was announced by Ko about 2 weeks later when she
told Villanueva to put the toilet paper cases in the linen closet if
the supplies closet was full and the housekeeper could call a
houseman to transfer the case to the supplies closet. It is un-
contested that for the 3 weeks Villanueva had been working
after his reinstatement by Respondent, he had put cases of toilet
paper on the top shelf and had never been advised by Ko or
anyone else not to do so. While Housekeeping Manager Lam
claimed every houseman was given procedures on how to stock
the supply closets and knew heavy items should be placed on
the ground, no evidence of the procedures or training for
housemen or Villanueva specifically was proffered. Villanue-
va’s credited testimony establishes that he had seen cases of
toilet paper on the top shelves in the maid’s closets on other
floors.
On May 20, 2010, a month after Villanueva was told by Ko
not to put the toilet paper case on the top shelf of the supply
closet, she gave him a written warning for putting toilet paper
on the top shelf of a supply closet and for failing to fill out his
production log. The warning stated:6

It is necessary to advise you the following:

On April 27, 2010 at 8:37AM, Ocean Tower 20th floor
housekeeper called down to the housekeeping office, saying
that an opened box of toilet tissue was up on the top shelf and
it was too heavy for her to bring it down to the floor.

Upon checking with the houseman assignment, Rhandy de-
livered supplies to 20th floor the previous night. On supply
order form, you check marked that you put a new box of toilet
tissue on the shelf.

When questioned, you said you did deliver supplies to 20th
floor.

Advised you that you are not supposed to put any heavy sup-
plies up on the top shelf because it is a safety hazard also, you
have to make sure you write the time received and time com-
pleted on your production log.

Advised employee need to follow proper operating proce-
dures and safety rules. Also informed employees (sic) any
other incidents regarding not following procedures will result
in further disciplinary action.

Respondent contends that Villanueva was warned for his
failure to follow procedures concerning maintenance of his
production log and for failure to follow safety procedures in
stocking a supply closet with toilet paper. No written rules
were produced concerning either infraction. Ko, who is still
employed by Respondent, who was the manager of Villanue-
va’s depart-ment and the person most likely to know of such
procedures was not called by Respondent as a witness. She
was in the best position to testify concerning what training
Villanueva received in delivery of supplies and what training he
received in filling out production logs. She could have testified
why it took her over 3 weeks to warn Villanueva why he had
not properly filled out production logs when she was reviewing
his logs several times a week after his reinstatement. I will
6 GC Exh. 3.
infer that if Ko had testified she would have testified Villanue-
va received no training regarding where to put toilet paper in
supply closets, that there were no rules concerning where to put
the toilet paper and that there were no rules about how to fill
out his production log. Pratt Towers, Inc., 338 NLRB 61, 96
fn. 81 (2002), citing Johnson Freightlines, 323 NLRB 1213,
1222 (1997); Bay Metal Cabinets, 302 NLRB 152, 173 (1990),
enfd. 940 F.2d 661 (6th Cir. 1991); Redwood Empire, Inc., 296
NLRB 369 fn. 1 (1980). See also Seda Specialty Packaging
Corp., 324 NLRB 350, 351 (1997); Texaco, Inc., 291 NLRB
325, 338 fn. 65 (1988); Certified Service, Inc., 270 NLRB 360,
365 (1984); Martin Luther King, Sr. Nursing Center, 231
NLRB 15 (1977)
It is uncontested that Ko never explained to Villanueva that
Respondent had a rule about the location of toilet paper in the
supplies closet. It is uncontested that Villanueva had seen toilet
paper on the top shelf in other supply closets. Together with
Ko’s failure to explain Respondent’s policies, a review of Gen-
eral Counsel’s Exhibit 21 reveals that other housemen failed to
record the time they received a work order and the time they
completed the work order on their daily production logs with-
out receiving a warning. Houseman Boun failed to properly
complete his production logs on March 6, 10, 20, 24, 25, 26,
27, and 30, April 8–10, July 13, 14, and 19, and December 28,
2010, and often completed his production logs in the same fash-
ion as Villanueva did prior to his discussion with Ko.7 The
only discipline that Boun received is disclosed in General
Counsel’s Exhibit 24, page DI to 13. Boun was not disciplined
for failing to properly complete his production log. Houseman
Edrada failed to properly complete his production logs on Janu-
ary 12 and 14, February 27 and 28, March 1, 2, 7, 8, 11 to 16,
18, 19, 21 to 23, 28, 29, and 31, April 4 to 6, 12, 15, and 17,
May 2 and 26, 2010, in the same manner that resulted in disci-
pline for Villanueva.8 Edrada testified that he was not disci-
plined for failing to complete his production log properly for
May 26, 2010. Similarly, housemen Ferdinand Nastor (Nastor)
and Anthony Ramiro (Ramiro) failed to properly complete their
production logs on a consistent basis. Records reflect six dates
between January 30 and July 25, 2010, when Nastor failed to
complete his production log properly9 and six examples be-
tween May 5 and July 20, 2010, when Ramiro failed to com-
plete his production log properly.10 There is no evidence of
either one being disciplined for this failure.
As will be seen below, it appears that Respondent made up
its rules in an ad hoc fashion in an effort to justify the termina-
tion of Villanueva and rid itself yet again of a union supporter.
2. Villanueva’s suspension and termination
In complaint paragraphs 6(b) and (c) it is alleged that Re-
spondent suspended and terminated Villanueva due to his sup-
port for the Union.
Next, Villanueva was suspended by Ko on July 12, 2010,
pending investigation. However, it was not until a July 20,
2010 meeting with Minicola and Union Representatives Brian
7 GC Exh. 2 1, pp.A3–7; GC Exh. 14, pp. 1–21).
8 GC Exh. 21, pp. B1–61.
9 GC Exh. 21, pp. CI–11.
10 GC Exh. 21, pp.Dl–30.

HTH CORP. 745
Tanaka and Eadie Omanaka that Villanueva learned the specif-
ic reasons for his suspension. Villanueva was told he was sus-
pended for using a bug spray known as “565 Plus.” In response
to questions from Minicola, Villanueva admitted using the bug
spray in a guest room to kill a cockroach. At the meeting, Vil-
lanueva repeatedly told Minicola that he was unsure of the date
of the incident. Minicola took this uncertainty to mean Vil-
lanueva was lying.
At the July 20 meeting, notes were taken by both the Union
and Respondent.11 Eadie Omanaka took verbatim notes for the
Union and Lan Yao took notes for Respondent. Yao admitted
that some of her notes were not verbatim but a summary of
what she thought was said because she missed some of what
was said at the meeting. She admitted her notes were only 90-
percentaccurate.
Both Omanaka’s and Yao’s notes reflect that Minicola re-
peatedly asked Villanueva if an incident involving security
occurred on July 5. While Villanueva readily admitted that he
had asked security for keys to open the housekeeping office, he
told Minicola he could not recall if this happened on July 5.
The transcript revealed that Villanueva was cooperative, re-
sponsive to Minicola’s questions and in no way appeared to
prevaricate. It is credible that Villanueva was unsure of a spe-
cific date in July that he sprayed a room for insects given the
fact that Minicola refused to tell the Union or Villanueva the
precise nature of Villanueva’s alleged infractions until the July
20 meeting. Moreover, much was made of Villanueva’s use of
the term “disinfectant” for the 565 Plus bug spray. It should be
noted here that English is not Villanueva’s primary language.
At the hearing it was obvious that Villanueva’s use of English
was rudimentary at best. There is no dispute that Villanueva
showed Hangai the can of 565 Plus when he referred to it as
“disinfectant” on July 5. There could have been no doubt in
Hangai’s mind that Villanueva’s use of the term “disinfectant”
was the 565 Plus. Even Hangai’s cursory look at the can in the
housekeeping office on July 5 would have revealed it to be bug
spray not “disinfectant.”12 It stretches credulity to suggest that
Villanueva was lying or less than candid with Minicola at the
July 20 meeting.
Villanueva explained to Minicola that since his return to
work in April, he had used 565 Plus to kill insects on three
occasions. Villanueva told Minicola that he got the bug spray
from Roselind Mad, a housekeeping clerk in the housekeeping
office, as he had done in the past. While Mad denied ever giv-
ing Villanueva 565 Plus, I found Mad to be an incredible wit-
ness. Her demeanor suggested she was not telling the truth
when asked if she had given Villanueva 565 Plus. She refused
to look at me, hesitated and answered in a voice lower than that
given in her other testimony. I credit Villanueva that he had
received the 565 Plus from Mad on more than one occasion.
Villanueva’s own contemporary production logs13 reflects that
his use of “disinfectant” was used in conjunction with bugs on
numerous occasions and independently corroborate his testi-
mony that he obtained bug spray from someone in the house-
11 GC Exh. 20; R. Exh. 15.
12 GC Exh. 12 is plainly labeled “Contact Insecticide.”
13 GC Exh. 14 at pp. 12, 25, 32, 42, and 45.
keeping office, the only location where 565 Plus was stored.
Villanueva told Minicola the second time he sprayed bugs he
had received a call from the night manager on duty at the hotel
telling him to spray a cockroach in a guest room. Since the
housekeeping office where the 565 Plus was kept was locked,
the manager on duty told Villanueva to get the housekeeping
office key from the security office. Villanueva got the house-
keeping key from security guard Bartolome,14 retrieved the 565
Plus from the housekeeping office, sprayed the cockroach in
the presence of two Japanese female guests, logged his action
on his production log, and returned the spray to the table out-
side the locked housekeeping office. Villanueva explained that
the third time he sprayed for insects, he got a call on his radio
to spray a guest room for bugs. On this occasion, Villanueva
got the key to the housekeeping office from Respondent’s secu-
rity director, Hangai. Hangai took Villanueva to the house-
keeping office, unlocked the door, saw Villanueva get the 565
Plus and logged in the security log that Villanueva had gotten
the bug spray. After Villanueva had sprayed the bugs in the
guest room, he left the 565 Plus in the housekeeping bag near
the front desk with his room keys and radio. Villanueva’s pro-
duction logs reflect that between April 21 and July 5, 2010, he
sprayed guest rooms on at least six occasions.15 The logs re-
flect Villanueva’s use of the term “disinfectant.” However,
every time Villanueva used the term disinfectant it was in con-
junction with killing bugs. If any manager had conducted a
thorough review of Villanueva’s production logs, they could
not have failed to understand the connection. Villanueva ex-
plained at the hearing that he had used 565 Plus on many occa-
sions between 1993 and 2007 and always retrieved it from the
housekeeping office. Respondent failed to proffer evidence
that there were written policies concerning entering the house-
keeping office after it was locked for the night nor was Vil-
lanueva given any directions concerning entering the house-
keeping office after hours. Villanueva also saw other employ-
ees in the housekeeping office after it had been locked during
the period April to July 2010. There was no evidence adduced
concerning written or verbal rules governing the use of 565.
On July 28, 2010, Respondent fired Villanueva a second
time. In making his decision to terminate Villanueva, Minicola
considered Hangai’s report,16 his July 20 interview with Vil-
lanueva, the statement of Roselind Mad17 and the statement of
Carazon Imanil.18 His termination document stated that Vil-
lanueva was fired for violating various house rules including:19

#1—Falsification or giving misleading information on em-
ployment application or falsification of Company records or
reports. This includes falsification of jury duty note, medical
certificate or time cards and /or punching, signing in/out or
14 Not only did Bartoleme not testify, his log entry reflects that he al-
lowed Villanueva to enter the locked housekeeping office to retrieve
bug spray on July 3, 2010.
15 GC Exh. 14 at pp. 12, 25, 32, 37, 42, and 45.
16 GC Exh. 17.
17 R. Exh. 26.
18 R. Exh. 27.
19 GC Exh. 4.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746
someone else’s timecard/sheet, knowingly permitting some-
one to punch/sign your time card/sheet.

#2—Theft or misappropriation of property (such as food,
beverage or keys), unauthorized possession, embezzlement, or
misappropriation of moneys or authorized storage, transfer,
utilization of property belonging to the Company, guests, oth-
er employees and/or others.

#12—Loitering or straying into areas not designated as work
areas, or where your duties do not take you.

#30—Not reporting damaged or lost items belonging to the
Company, guests, or outside agencies properties: refusing to
cooperate with the Company in obtaining true and factual
statements; dishonesty in any form.

#42—Not complying with your respective Department Rules
and Procedures.

At the July 28, 2010 termination meeting, Minicola told Un-
ion Representative Lindo and Villanueva that the rule numbers
listed in Villanueva’s termination document were from Re-
spondent’s employee handbook.20 Minicola said that Villanue-
va violated rule #1 by giving false statements during the inves-
tigation meeting on July 20, 2010; rule #2 by stealing the 565
Plus bug spray; rule #12 by going into the locked housekeeping
office to get the spray without authorization; rule #30 by violat-
ing rules 1 and 2, by not returning the spray and by not being
truthful during the July 20 meeting; and rule #42 by all of the
conduct aforementioned. When Lindo asked what false state-
ments Villanueva had made, Minicola said Villanueva was
dishonest about what had occurred with the bug spray. When
Lindo said Villanueva had not stolen bug spray but placed it in
the housekeeping bag, Minicola said the spray had not been
found. When Lindo asked if Hangai had been disciplined for
entering the housekeeping office, Minicola said he had not and
that Hangai had done a good job. When Lindo asked for copies
of the procedures Villanueva had violated, Minicola said he
was not sure there were any procedures and that only a limited
number of people could use the 565 bug spray, only those
trained to use it. No evidence was proffered about such proce-
dures.
3. Analysis
In order to find a violation of Section 8(a)(3) of the Act, the
General Counsel has the initial burden of establishing that un-
ion activity was a motivating factor in Respondent’s action
alleged to constitute discrimination in violation of Section
8(a)(3) of the Act. The elements required to support such a
prima facie violation of Section 8(a)(3) are union activity, em-
ployer knowledge of the activity, and a connection between the
employer’s antiunion animus and the discriminatory conduct.
Intermet Stevensville, 350 NLRB 1270, 1274 (2007). Once the
General Counsel has established its prima facie case, the bur-
den shifts to Respondent to show that it would have taken the
disciplinary action even in the absence of protected activity.
Wright Line, 251 NLRB 1083 (1980).
20 R. Exh. 7.
Motive or animus may be inferred from all of the circum-
stances in the absence of direct evidence. A blatant disparity is
sufficient to support a prima facie case of discrimination. Fluor
Daniel, Inc., 304 NLRB 970 (1991). As stated by the Board:
“A pretextual reason, of course, supports an inference of an
unlawful one.” Keller Mfg. Co., 237 NLRB 712, 717 (1978).
The disparate nature of discipline, the unprecedented scope
of an investigation, the absence of a cogent reason for conduct-
ing such an investigation, and the failure to afford a discrimi-
natee any opportunity to answer the allegations raised by the
investigation are factors that have repeatedly been found ade-
quate to infer discriminatory motivation. Tubular Corp. of
America, 337 NLRB 99 (2001).
There is ample evidence of Villanueva’s union activity both
before and after his reinstatement that was well known to Re-
spondent. The record here and in HTH I is replete with evi-
dence of Respondent’s animus toward its employees and the
Union. I find that counsel for the Acting General Counsel has
established a prima facie case that Respondent again unlawfully
warned, suspended, and terminated Villanueva. The burden
now shifts to Respondent to show that they would have taken
the same action in the absence of Villanueva’s union activity.
I find that Respondent’s proffered reasons for warning Vil-
lanueva for failing to fill out production logs and for placing
toilet paper on the top shelf of the supply closet were pretext
and Respondent has failed to establish they would have warned
Villanueva in the absence of his union activities. There is no
evidence that Respondent had any rules, written or oral, con-
cerning where toilet paper should be placed in supply closets.
As noted above by Ko’s ad hoc creation of a rule concerning
where to place toilet paper if the shelves were full in the supply
closet, Respondent seems to make up policies as they go along
without ensuring employees are notified. Moreover, there is no
evidence any manager told Villanueva where he should place
toilet paper. It must be remembered it had been over 7 years
since Villanueva had stocked supplies and over 2 years since he
had worked for Respondent. The uncontroverted evidence
reflects that toilet paper was placed on the top shelf of supply
closets in the past and that during April 2010 Villanueva had
placed toilet paper in such a location without warning. With
respect to Villanueva’s alleged failure to properly fill out his
production logs, the evidence amply demonstrates that Re-
spondent had no rules and failed to discipline any employees
for improperly filling out production logs.
I conclude that Respondent issued Villanueva the written
warnings in violation of Section 8(a)(1) and(3) of the Act.
The Board has held that an employer’s failure to conduct a
fair investigation and to give the employee an opportunity to
say what happened prior to the imposition of discipline are
“significant factors in finding of discriminatory motivation.”
Johnson Freightlines, 323 NLRB 1213, 1222 (1997), citing
Publishers Printing Co., 317 NLRB 933, 938 (1995).
Respondent asserts that Villanueva violated five rules in
spraying for cockroaches on or about July 5, 2010, but have
presented no conclusive evidence of any violation.
Respondent contends that Villanueva violated rule #1 by giv-
ing false statements during the investigation meeting on July
20, 2010; rule #2 by stealing the 565 Plus bug spray; rule #12

HTH CORP. 747
by going into the locked housekeeping office to get the spray
without authorization; rule #30 by violating rules 1 and 2, by
not returning the spray and by not being truthful during the July
20 meeting; and rule #42 by all of the conduct aforementioned.
With respect to rule #1, as noted above, Villanueva made no
false statements to Minicola on July 20. Villanueva was honest
about using the bug spray and he was consistent in telling Min-
icola he could not remember the date or dates he used it. If
Minicola had made even a cursory review of Villanueva’s pro-
duction logs, he would have discovered Villanueva’s numerous
uses of spray to kill bugs documented including on July 5,
2010. The production logs would have further discredited
Mad’s denial of giving Villanueva bug spray and corroborated
Villanueva. Further, when Hangai admitted Villanueva into the
housekeeping office he admitted Villanueva went right to the
cabinet behind Mad’s desk to get the spray. This familiar ac-
tion by Villanueva further supports his testimony that he had
gotten the 565 Plus on many occasions from Mad.
Respondent fired Villanueva for stealing bug spray in viola-
tion of rule #2. If so, Villanueva must be the dumbest man in
Respondent’s employ because before he “stole” the bug spray
he showed Security Director Hangai exactly where he got it and
then recorded that he used the same spray to kill a bug in his
production record for July 5. What is truly puzzling is that
Respondent did not catch Villanueva in his “lie” by reviewing
disks of the surveillance cameras that scanned the front desk
area where Villanueva would have failed to place the spray into
the housekeeping bag. Respondent never reviewed the disks of
those cameras to verify Villanueva’s story. In short, there is no
evidence Villanueva stole the spray can.
According to Respondent, Villanueva violated rule #12 by
entering the locked housekeeping office without Ko’s con-
sent.21 There is no dispute that Villanueva gained access to the
locked housekeeping office with the permission of the manager
on duty, security officers Bartolome and Hangai. However,
Hangai, security guard Bartolome, and the manager on duty
were not disciplined for allowing Villanueva into the locked
housekeeping office without calling Ko. This discrepancy re-
flects not only disparate treatment of Villanueva but suggests
that Respondent had no policy requiring that Ko be called prior
to anyone gaining access to the locked housekeeping office. If
the security manager and the security guard on duty did not
know that Ko had to be called prior to an employee gaining
access to the housekeeping office, it is apparent there was no
such rule. It is significant that Respondent’s own witness,
houseman Larry Edrada, was unaware of any rule prohibiting
employees from entering the housekeeping office after it
closed. Ko did not testify, despite being the management offi-
cial most familiar with the alleged rules regarding access to the
housekeeping office and use of 565 Plus bug spray. I conclude
had she testified Ko would have admitted there were no rules
requiring her permission to enter the locked housekeeping of-
21 In their brief, counsel for the Acting General Counsel moved to
withdraw complaint pars. 6 and 7(e) dealing with maintaining and
enforcing rule #12 in view of the Board’s finding in HTH I that in
maintaining rule #12 Respondent violated Sec. 8(a)(1) of the Act. The
motion is granted.
fice nor were there any rules regarding who could use the bug
spray. Moreover, since Hangai, a management official, gave
Villanueva permission to enter the office, Villanueva could not
have entered without permission. Respondent’s suggestion that
Villanueva gained access through false pretenses by telling
Hangai he needed “disinfectant” is belied by Hangai’s request
to see the can of bug spray.
Rules #30 and #42 are simply a reiteration of rules restate-
ments of prior rules #1, #2, and #12. Rule #42 relates to Vil-
lanueva’s failure to follow policy. As noted above, since there
are no policies concerning Villanueva’s use of 565 Plus or his
access to the office, there were no rules he could have violated.
In addition, Respondent contends that its policy allowed only
a limited number of trained employees to use the 565 Plus bug
spray. However, neither Roselind Mad, Respondent’s house-
keeping clerk who gave Villanueva the 565 Plus, nor Lam, the
housekeeping manager were aware of any rules or policy con-
cerning who could use 565 Plus. Minicola never asked for a
list of who was trained to use 565 Plus.
Any contention that Villanueva violated a rule by failing to
fill out a log entry when he took the 565 Plus spray is ludicrous
since there is no evidence that Villanueva was required to fill
out a log and since Hangai was aware Villanueva had the spray
in his possession.
Respondent contends that Villanueva violated a rule when he
used the 565 Plus while guests were in the room. No such rule
has been established. Indeed, although houseman Edrada con-
firmed that he does not spray insects at night in guest rooms, he
also testified that he saw nothing in writing instructing him not
use bug spray in a guest room at night, nor prohibiting him
from entering the housekeeping office after hours. While both
Minicola and Lam testified that the hotel policy prohibits the
use of bug spray in guest rooms while guests are present, Lam
also stated that she is unaware of anyone informing Villanueva
of this practice. Lam incredibly testified that insects reported in
guest rooms where the guests are present must be caught by
hand, and not sprayed. It strains credulity that a line of ants
could be caught by hand.
I conclude, that like the purported rule regarding placement
of toilet paper in the supply closets, the alleged rules regarding
access to the housekeeping office and use of 565 Plus were
made from whole cloth in an ad hoc attempt to once again justi-
fy the termination of Villanueva in retaliation for his union
activity.
There is further evidence that Villanueva’s alleged transgres-
sions were treated in disparate fashion from those of similarly
situated employees. Employee disciplinary records22 reflect
that during the period December 21, 2007, through December
27, 2010, Respondent disciplined 24 employees for removing
guest property, i.e., cash, without authorization, taking a guest’s
bottle of face wash from a guest room, losing a master key,
requiring all rooms to be rekeyed, being in unauthorized work
areas, lying to management, failing to follow procedures, unau-
thorized taking of a $100-tip, failing to report $300-gift certifi-
cates found in a guest room, removing hotel or guest property
from the hotel, logging rooms as cleaned that were not cleaned,
22 GC Exhs. 24–26.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
removing a guest’s boxes of chocolates from a guest room,
failure to secure a cash bank overnight, seven instances of cash
variances between $14 and $101, sleeping on the job, failure to
assist a guest, allowing food to spoil, adding a tip to a guest
bill, and taking food without authorization from the Hotel.
Despite the seriousness of the offenses, including theft and
dishonesty, none of the employees received more than a sus-
pension.
Respondent would have me believe that Villanueva, who had
no prior discipline, who never lied to Minicola or anyone else,
who did not steal the bug spray, who was asked by a manager
on duty to kill bugs at a guest’s request, who, to the guest’s’
relief, killed the bugs, who was authorized to use the bug spray
in guest rooms by housekeeping clerk Mad and Security Direc-
tor Hangai and who was admitted into the housekeeping office
twice by security officers, engaged in conduct more serious
than 24 other employees who got no more than a suspension.
Such a contention is untenable.
While Respondent claims that many employees were given
harsher discipline than Villanueva, termination seems to be the
ultimate penalty. Further, as noted above, many employees
whose conduct was more serious than Villanueva received less
discipline. Respondent lists 14 employees who were fired. A
cursory review of the disciplinary records cited in Respondent’s
brief reflects that the employees fired were multiple miscreants
whose conduct was far more egregious than Villanueva’s. A
review of the underlying records shows that employee B. Fiatoa
was finally fired on August 29, 2008, after he failed to show up
for work for 3 days.23 Guest services employee J. Brash was
terminated after repeated refusals and failures to perform his
work duties and to follow instructions.24 K. Chang was let go
for filling out a timecard for a day he did not work.25 S. Jung
was dismissed for failure to show up for work on six occa-
sions.26 T. Chang was discharged for losing a master key
twice, requiring rekeying of all doors.27 Security guard A.
Elieisar was drummed out because he received multiple com-
plaints about his attitude and performance from multiple de-
partments.28 Security guard T. Larson was cashiered after re-
ceiving numerous complaints from employees, including com-
plaints of sexual harassment.29 Security guard K. Young was
given his walking papers after having been previously disci-
plined eight times for an inability to comprehend that he had to
be on time.30 C Nami was sacked for giving confidential hotel
information to outside sources.31 M. Choi was given the ax for
sleeping on the job, in plain view, outside the grand ballroom.32
R. Corpuz was removed for theft of overtime without authori-
zation after having been previously warned.33 B Hee was
23 GC Exh. 25 at G-8.
24 R. Exh. 12, p. 3.
25 R. Exh. 12 p. 13.
26 R. Exh. 12, p. 27.
27 R. Exh. 12, p. 80.
28 R. Exh. 12, p. 95.
29 R. Exh. 12, p.119.
30 R. Exh. 12, p. 133.
31 R. Exh. 13, p. 30.
32 R. Exh. 13, p. 35.
33 R. Exh. 13, p. 37.
shown the door for leaving a garbage can full of refuse in a wait
station despite prior warnings.34 P. Louis was removed for
asking a guest for a tip; failing to receive the tip, he was rude to
the guest; he then compounded his crime by failing to serve the
guest.35 Finally, T. Waltman was given the boot for giving
false information about her workers’ compensation claim.36
From the above facts, I find that Respondent’s reasons for
suspending and terminating Villanueva were a sham. Respond-
ent has failed to show that they would have terminated Vil-
lanueva despite his union activity and his suspension and ter-
mination violated Section 8(a)(1) and (3) of the Act.
C. The Facts in Cases 37–CA–007965, et al.
In these cases, counsel for the Acting General Counsel con-
tends that Respondent violated Section 8(a)(1) of the Act by
engaging in surveillance of employees’ union activities on Sep-
tember 10, 2010, when security guards observed and photo-
graphed union representatives handing leaflets to employees
entering Respondent’s parking garage and by announcing to
employees that Union Representatives Dave Mori and Carmel-
ita Labtingao were prohibited from entering Respondent’s
property. The General Counsel also argues that Respondent
violated Sections 8(a)(1) and (5) of the Act by unilaterally ceas-
ing to match employee contributions to its 401(k) plan, by uni-
laterally banning Union Representatives Dave Mori and Car-
melita Labtingao from entering Respondent’s facility, by fail-
ing to furnish and unreasonably delaying in furnishing infor-
mation to the Union necessary and relevant to the Union’s per-
formance of its duties as exclusive collective-bargaining repre-
sentative, and by unilaterally changing terms and conditions of
employment without providing the Union notice and an oppor-
tunity to bargain with respect to the alleged changes.
1. Respondent barred Mori and Labtingao from
entering its facility
Consolidated complaint paragraph 8 alleges that on about
May 6, 2010, Respondent unilaterally banned Mori and
Labtingao from the premises of the Hotel in violation of an
existing access agreement in violation of Section 8(a)(5) of the
Act.
From about 2005 to 2007, by agreement of the parties, Re-
spondent allowed union access to the Hotel upon notice to Min-
icola with the understanding that the access would not disrupt
hotel operations. Respondent misrepresents the evidence when
they claim in their brief that there was an oral understanding as
to what constituted disruption. In response to a question from
counsel for the General Counsel as to whether the parties de-
scribed in their understanding what would constitute disruption
to hotel operations Minicola conceded, “No, we didn’t get into
a lot of detail.”37 It is undisputed that from 2005 until 2007
when Respondent unlawfully withdrew recognition from the
Union, Mori was granted permission to access the Hotel for
bargaining and other union business.
34 R. Exh. 13, p. 56.
35 R. Exh. 13, p. 90.
36 R. Exh. 13, p. 137.
37 Tr. 1420, L. 13.

HTH CORP. 749
On April 28, 2010, Minicola gave Mori and Labtingao per-
mission to visit the Hotel to go to lunch. After being seated in
the Oceanarium Restaurant, a restaurant with a large, signature
aquarium, bus person Midori Fukushima approached the table
at which Mori and Labtingao were seated to bring them water.
From my observation of Fukushima, it is clear that her first
language is not English and that her understanding of the Eng-
lish language is limited. At the hearing, Fukushima was assist-
ed by a Japanese interpreter. Labtingao said, “hi,” to Fukushi-
ma whom she knew from having worked at the Hotel and from
union meetings. Labtingao said, “We joined the Union.”38
Fukushima replied by saying, “Oh.” At the hearing, Fukushima
said she was not upset by Labtingao’s statement. Labtingao
told Fukushima to come to her office. Fukushima went to the
service area at the back of the restaurant to find out what had
happened with the Union. As Fukushima walked to the service
area, she saw Charles Sayles, the assistant manager for restau-
rant operations, standing outside his office. Fukushima asked
Sayles, “[S]o, did the hotel join the union?” Sayles said, “[N]o,
what did those guys tell you?”39 Sayles told Fukushima not to
go out into the restaurant and told another waiter, Nestor Baja,
to do her job. Fukushima testified that she made a face at
Sayles to show she did not like the fact that he was not allowing
her to do her job. Fukushima remained in the restaurant service
area with other wait staff, Nestor Baja and Joyce Kekona, and
they complained about the Union contacting people at home
without an appointment. Fukushima guessed40 that Kekona
was upset about the Union coming to her house and to the res-
taurant. However, other than speaking in a loud voice, as she
usually did, Kekona did not stop performing her job duties.
Contrary to Sayles and Hangai, Fukushima testified she nev-
er told Sayles or Hangai she did not want to go out on the floor
nor did she tell them she was upset by her conversation with
Labtingao. Later, Fukushima refused to sign a statement for
Respondent about what had occurred.
According to Sayles, on April 28 Fukushima approached him
near his office at the back of the restaurant. She said the lady
asked me you are part of the Union and Fukushima said I don’t
know. Fukushima identified a lady at table 4. Fukushima re-
peated several times, “I don’t want to go out.”41 Sayles as-
sumed this meant Fukushima felt harassed. Given the fact that
Fukushima knew Labtingao for many years, her use of the im-
personal “lady at table 4” to identify Labtingao is not credible.
In his initial examination by the General Counsel, Sayles failed
to say if Fukushima appeared upset. When asked by the Gen-
eral Counsel, “[W]hen you spoke with Ms. Fukushima before
you went out on the floor, she never mentioned that she was—
that she felt harassed did she?” Sayles replied, “Yeah, she did
feel harassed.” When asked what words Fukushima used,
Sayles replied, “Well, she came back and, you know, she used,
38 Tr. at 1558, L. 5.
39 Tr. at 1560, LL. 17–19.
40 Tr. at 1609, LL. 16–21.
41 In their brief, Respondent misrepresents Sayles testimony claim-
ing that Fukushima said she did not want to go out on the floor because
the union representatives were talking to her about the Union. Sayles
testified only that Fukushima said, “I don’t want to go out.” Tr. 2505,
LL. 25 to 2506; L. 11.
‘No, I don’t want to go out.’”42 According to Sayles, this con-
versation was conducted in English. Sayles went to Mori and
Labtingao’s table and said you are not allowed to talk to em-
ployees about the Union on the property and the employee felt
harassed. Sayles called Hangai and told him he had an em-
ployee who was being harassed. Hangai went to the restaurant
and spoke to Fukushima in English in the service area. Accord-
ing to Hangai, he asked Fukushima what had happened. She
replied, “[T]hey said, ‘do you know you are in the union. The
Board has decided.’” Hangai asked who said that and Fuku-
shima replied, “[T]he people at the table I was serving and
I don’t want to go back out there.” Hangai asked if she was
upset and Fukushima said yes. Hangai said she looked stiff and
tense. Hangai then went to Mori and Labtingao’s table and told
them he had a complaint from an employee about statements
they had made and that they had to leave the restaurant. Mori
said he was not leaving and Hangai said he would call the po-
lice. Hangai returned to the service area and asked Fukushima
if she was upset. She said she was. In the meantime, both Mori
and Labtingao left the restaurant.
I credit Fukushima’s testimony that she told neither Sayles
nor Hangai that she was upset by her conversation with
Labtingao nor did she tell them she did not want to go back out
into the restaurant. Rather, she remained in the service area
because Sayles told her to do so. It is clear that Fukushima’s
first language is Japanese. However, according to Sayles, his
discussion with Fukushima was in English. Hangai also spoke
English to Fukushima. It is likely that it was Sayles not Fuku-
shima who was upset when he learned that Union Representa-
tives Mori and Labtingao were in his restaurant and spoke to an
employee about the Union. From the overreaction of both her
boss, Sayles, and Security Chief Hangai, it is not surprising that
Fukushima did not appear happy but rather stiff and tense. I
find Fukushima’s hearing testimony translated from English to
Japanese is the more reliable account.
Hangai gave Minicola copies of a security report43 concern-
ing the incident between Fukushima and the union representa-
tives.
On May 14, 2010, Respondent posted notices44 to employees
in the Hotel that advised employees that Union Representatives
Mori and Labtingao were banned from the Hotel because they
disrupted operations and that Respondent’s had filed a police
report of the incident. By letter45 dated May 6, 2010, Minicola
permanently banned both Mori and Labtingao from the Hotel
without consultation with Mori or seeking Mori’s version of
what occurred.
At a meeting in early June 2010 between Mori and Minicola
to discuss compliance with the 10(j) order, Mori told Minicola
he excepted to being banned from the Hotel without having
provided his version of what happened. Mori said that he did
not speak to employees and that neither he nor Labtingao had
been disruptive. When Minicola said Mori should have called
him, Mori said he did not think it was a serious matter. Minico-
42 Tr. 1467–1468.
43 GC Exh. 80.
44 GC Exh. 45.
45 GC Exh. 42.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
la suggested that if Mori made a verbal apology to the employ-
ees, he could come back to the Hotel. Mori said he had nothing
to apologize for. A few weeks later in another meeting with
Minicola, Minicola proposed that Mori apologize to the em-
ployees. Mori said Carmelita was the one who spoke. Do you
want me to post? Minicola said I had to post. (Pursuant to
Judge Seabright’s order.) At no time did Minicola bargain with
the Union over the issue of Hotel access by Mori and Labtingao
before banning them.
It is well established that an employer’s regular and
longstanding practices, even if those practices are not required
by a collective-bargaining agreement, become terms and condi-
tions of employment that an employer may not alter without
providing a union with notice and opportunity to bargain. Tur-
tle Bay Resorts, 355 NLRB 706 (2010); Lafayette Grinding
Corp., 337 NLRB 832 (2002). Where an employer has a past
practice of providing union agents with access to its facilities, it
cannot change that practice without first notifying and bargain-
ing with the union to agreement or a good-faith impasse. Gran-
ite City Steel Co., 167 NLRB 310, 315 (1967).
Mori followed the past practice for gaining hotel access by
notifying and acquiring permission from Minicola to enter the
Hotel. Despite Respondent’s contention to the contrary, it is
clear that neither Mori nor Labtingao violated the access
agreement by engaging in disruptive behavior at the Hotel.
Despite Hangai and Sayles testimony to the contrary, I have
credited Fukushima that she was not upset by Labtingao’s
comments.
In deciding to ban Mori and Labtingao, Minicola relied on
secondhand reports of what occurred without consulting with
those who actually were present including wait staff Fukushi-
ma, Kekona, and Baja.
I find Respondent has fabricated another incident to thwart
its employees from enjoying the benefits of their choice to have
the Union represent them. There is not a scintilla of evidence
that Mori or Labtingao in any way disrupted the operation of
the restaurant. It was Sayles who told Fukushima to remain in
the kitchen area and assigned another employee to perform her
duties in a restaurant that had more fish than customers. Mini-
cola’s ludicrous suggestion to Mori that the Union post a notice
and apologize to employees for a nonexistent disruption as a
condition for Mori and Labtingao’s access to the Hotel, reflects
further that it was antiunion animus that motivated Respond-
ent’s ban rather than any disruption.
By way of defense, Respondent asserts that they made no
changes to the access policy but merely enforced those provi-
sions dealing with disruptions to the Hotel’s operation. I find
no merit in this defense. First, I have found there was no dis-
ruption to the Hotel’s operation. Second, there was no under-
standing between the parties about what constituted a disrup-
tion or what consequences would arise from a disruption. Min-
icola was unilaterally enforcing his own definition. Respondent
has the chutzpah to suggest that Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 798 (1945), stands for the proposition that
absent an understanding as to what constitutes disruption, it has
the right to unilaterally make such a decision and ban union
representatives without bargaining. Republic Aviation does not
support such a position. Respondent also suggests that Mori
has admitted he and Labtingao harassed employees. The record
is devoid of any evidence to support this proposition. Moreo-
ver, this is not a Lechmere46 situation where non employees
may be excluded from an employer’s premises absent a show-
ing of an inability to communicate with the employees. Here
there was an extant access policy between Respondent and the
Union permitting union agents access to the hotel. Respondent
is not permitted to unilaterally abrogate that policy without
notice to and bargaining with the Union.
Respondent’s contention that it did not abrogate the access
policy since it continued to allow other union representatives
access, is not supported in the law. It is not for the Respondent
to decide which union representatives may have access to its
facility, where access has been furnished to the Union through
negotiations and past practice. Respondent’s denial of Mori
and Labtingao’s access to the Hotel had a material, substantial,
and significant negative impact on the Union’s representational
activity on behalf of the bargaining unit employees, and, thus,
potentially affected their terms and conditions of employment.
Cf. KGTV, 355 NLRB 1283 (2010); Peerless Food Products,
Inc., 236 NLRB 161 (1978).
By banning Mori and Labtingao, Respondent unilaterally
changed an established access practice without first notice to
the Union in violation of Section 8(a)(1) and (5) of the Act.
2. Notice to employees that Mori and Labtingao
were banned from the Hotel
In the consolidated complaint at paragraph 9, it is alleged
that Respondent on May 14, 2010, in announcing to its unit
employees that it had permanently banned Union Oahu Divi-
sion Director Mori and organizer Labtingao from its Hotel and
had filed a report of the incident with the Honolulu police de-
partment, coerced and restrained employees in the exercise of
their Section 7 rights.
On May 14, 2010, Minicola drafted and ordered the posting
of a notice to employees informing them that Mori and
Labtingao were permanently banned from the Hotel “because
they disrupted Hotel operations.”47 This notice was clearly
posted by the timeclock near the employees’ cafeteria at the
Hotel where bargaining unit employees, such as Darryl
Miyashiro, would undoubtedly read it.
Where an employer seizes upon an incident as a pretext to
disparage and undermine the union in the eyes of the employ-
ees, it violates Section 8(a)(1). Sheraton Hotel Waterbury, 312
NLRB 304 fn. 3 (1993). Minicola publicly disparaged the ef-
fectiveness of the Union by posting the notice permanently
banning Mori and Labtingao for all bargaining unit employees
to see. This conduct flies in the face of the District Court’s
order directing Respondent to recognize and bargain with the
Union, after years of unlawfully refusing to do so. It is a state-
ment to employees that the Union, even with an order from the
District Court is impotent. Respondent’s notice to employees
of the unfounded banishment of the Union’s representatives
undermines the Union in the eyes of employees and it therefore
violates Section 8(a)(1) of the Act.
46 502 U.S. 527 (1992).
47 GC Exh. 45.

HTH CORP. 751
3. The surveillance
Consolidated complaint paragraph 17 alleges that on Sep-
tember 10, 2010, Hangai and other security officers engaged in
surveillance of employees’ union activities in violation of sec-
tion 8(a)(1) of the Act.
On September 10, 2010, union field organizer Labtingao and
part-time mobilizer Patrick DeCosta leafleted at the garage
entrances to Respondent’s hotel from about 1:30 to about 3:30
p.m. The leaflets described that Villanueva had been fired by
Respondent. The garage entrances are located on Kuhio and
Liliuokalani and Kalakaua Avenues. Photos48 and a map49
represent the locations of the garage entrances. Labtingao and
De Costa handed out leaflets50 to employees who approached
the garage entrances and exits in their vehicles. Labtingao
handed out leaflets at the Lilioukulani entrance while DeCosta
handed out leaflets at the Kuhio entrance. During most of the
time they were handing out leaflets, Respondent’s security
guards both observed51 Labtingao and DeCosta and took pho-
tographs of them while handing out leaflets to employees.
DeCosta and Labtingao handed out leaflets to employees they
recognized or to employees wearing hotel uniforms. Photos52
taken by Respondent reflect that both DeCosta and Labtingao
handed out leaflets on the public sidewalk. Respondent con-
tends that the photos do not show DeCosta handing out flyers to
employees. This contention is unfounded as shown in General
Counsel’s Exhibit 83(V) and the testimony of bargaining unit
employee Darryl Miyashiro who said that the photo was of his
car. The sidewalk on Kuhio is demarked by flagstones. The
public sidewalk runs across the ramp that leads to the garage
and it ends at the street or in a grass strip near the street. On
Liliuokalani and Kalakaua the sidewalk is concrete and runs
across the ramp entrance to the garage. None of Respondent’s
photos reflect that either Labtingao or DeCosta obstructed the
garage entrances or caused entering or exiting vehicles to create
a traffic hazard. At about 1:45 p.m., a guard approached De-
Costa and said, “[Y]ou can’t be there you have to leave.” De-
Costa replied that he had a right to be there. “I am on a public
sidewalk.” At this time DeCosta was standing where the public
sidewalk ended and the ramp to the garage began. This was
clearly public space. The guard repeated that DeCosta was not
supposed to be there and that he could not hand out things from
where he was standing. A few minutes later, a second guard
appeared and said to DeCosta, “What are you doing here?”
DeCosta said, “[Y]ou know what I am doing.” Guard two said,
“[B]eat it. You’re not supposed to be here.” Then a third guard
approached and stood shoulder-to-shoulder with guards one and
two and said, “What are you doing here? You have to leave.”
A valet next approached, stood with the three security guards
and told DeCosta he had to leave. At first, all four were about
6 feet from DeCosta but advanced to within 1 foot of him and
told him he had to leave. One guard and the valet left but two
48 GC Exhs. 83, 90–92.
49 R. Exh. 33.
50 GC Exh. 89.
51 GC Exhs. 90, 91.
52 GC Exh. 83 items.
guards remained and observed DeCosta from the top of the
ramp near the garage entrance.
While security guards Davis and Hangai testified that De-
Costa’s leafleting created a traffic hazard, the photos taken by
Respondent belie this allegation. Security guards Davis and
Hangai both exaggerated when they said that a bus had to avoid
an accident due to a vehicle protruding onto the street from the
garage ramp. However, they admitted that the bus did not
come to an abrupt stop where brakes would have caused tires to
make skid marks. Davis admitted that the bus stopped at least
12 feet from the car. Hangai said a vehicle making a left turn
into the Kuhio entrance caused traffic to slow. The fact that a
car making a left turn may have caused traffic to slow, is the
fault of the driver not DeCosta. Moreover, neither Davis nor
Hangai attempted to direct traffic into the driveway so all cars
would be clear of Kuhio Avenue; even though they could have
done so from hotel property. Hangai also made no effort to talk
with DeCosta or Labtingao about their dangerous behavior at
the time, which belies the existence of any traffic hazard. I
credit both Labtingao and DeCosta that they at no time blocked
the garage entrances or created a traffic hazard.
An employer violates Section 8(a)(1) when it “surveils em-
ployees engaged in Section 7 activity by observing them in a
way that is ‘out of the ordinary’ and thereby coercive.” Alad-
din Gaming, LLC, 345 NLRB 585, 586 (2005). Indicia of coer-
civeness include the “duration of the observation, the employ-
er’s distance from its employees while observing them, and
whether the employer engaged in other coercive behavior dur-
ing its observation.” Id. Moreover, “[p]hotographing . . . clear-
ly constitute[s] more than ‘mere observation’ because such
pictorial recordkeeping tends to create fear among employees
of future reprisals.” F. W. Woolworth Co., 310 NLRB 1197
(1993).
Respondent relies on Town & Country Supermarkets, 340
NLRB 1410 (2001); Saia Motor Freight Line, Inc., 333 NLRB
784 (2001); and Brown Transport Corp., 294 NLRB 969
(1989), for the proposition that an employer is justified in pho-
tographing handbilling activity based on a concern for traffic
congestion and accidents.
Town & Country Supermarkets, supra, stands for the propo-
sition that photographing in the mere belief that something
might happen does not justify the employers’ conduct. The
Board requires an employer to show that it had a reasonable
basis to have anticipated misconduct by the employees.
Here, there is no evidence that DeCosta or Labtingao en-
gaged in misconduct or that Respondent had reason to believe
they would engage in misconduct since Respondent concedes
all prior handbilling was done without impeding traffic. Ra-
ther, Respondent’s justification for photographing its employ-
ees is pretext. Respondent’s own photographs reflect that nei-
ther DeCosta nor Labtingao created a hazardous traffic condi-
tion. The position of both leafleters was on the public side-
walk, they took only a brief time to hand leaflets to employees
and the photos reveal that no car was blocking the street outside
the garage entrances. The allegation concerning the bus is an
exaggeration as there is no evidence the bus had to engage in
any kind of emergency action to slow down or stop. Moreover,
the lack of action by any security guard to attempt to direct

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
traffic belies the absence of any traffic hazard that would war-
rant hours of surveillance and photography of employees en-
gaged in Section 7 activities.
Respondent’s 2-hour observation of and photographing the
activities of DeCosta and Labtingao handing out leaflets to
employees constitutes unlawful surveillance in violation of
Section 8(a)(1) of the Act.
4. Security guards’ intimidation of DeCosta
In their brief, counsel for the General Counsel allege that the
guards’ attempt to intimidate DeCosta and prevent distribution
of union literature violates Section 8(a)(1) of the Act.
An unpled matter may support an unfair labor practice find-
ing if it is closely related to the subject matter of the complaint
and has been fully litigated. Airborne Freight Corp., 343
NLRB 580, 581 (2004); Hi-Tech Cable Corp., 318 NLRB 280
(1995); Pergament United Sales, Inc., 296 NLRB 333, 334
(1989). In the instant case, the above-surveillance allegation is
closely related to the issue of preventing DeCosta from leaflet-
ing. The factual issues of where DeCosta was located, i.e., on a
public sidewalk or on Respondent’s property, the statements
made by the guards that DeCosta had to leave and the proximi-
ty of the guards to DeCosta were all fully litigated. I will con-
sider this additional unfair labor practice allegation.
Respondent’s attempt to exclude a union representative dis-
tributing leaflets to employees on a public sidewalk without
producing evidence to show any property interest is also a vio-
lation of Section 8(a)(1). See Bristol Farms, 311 NLRB 437,
439 (1993). The Board held in Bristol Farms, supra at 437:

In considering the issues raised by this case, we bear in mind
the following general principles. It is beyond question that an
employer’s exclusion of union representatives from public
property violates Section 8(a)(1), so long as the union repre-
sentatives are engaged in activity protected by Section 7 of the
Act.

It is undisputed that the sidewalk where DeCosta distributed
handbill was a pubic thoroughfare. It is likewise undisputed
that several security guards and a parking attendant seriatim
told DeCosta he had to leave. At one point, three security
guards and a parking attendant standing shoulder-to-shoulder
approached to within 1 foot of DeCosta and told him he had to
leave. I find that through the guards acting in their capacity as
agents for Respondent, Respondent’s, in attempting to exclude
DeCosta from the public walkway, while he was engaged in
activity protected by Section 7 of the Act, violated Section
8(a)(1) of the Act.
5. The unilateral changes
As noted above, by August 2007 PBHM and the Union me-
morialized a number of the tentative agreements which they
had reached including a provision that established a daily
house-keeping limitation providing that housekeepers would be
assigned 16 rooms per day in the Ocean Tower and 15 rooms
per day in the Beach Tower. In his order, Judge Seabright di-
rected Respondent to:

Resume contract negotiations and honor all tentative agree-
ments entered into from the point Respondents and the Union,
and PBHM and the Union, left off negotiations on November
30, 2007, and if an understanding is reached, embody such
understanding in a signed agreement; provided, however, that
the parties may in good faith reopen negotiations on any ten-
tative agreement that has been validly affected by a change in
economic or other circumstances;

After Judge Seabright’s order issued on March 29, 2010, the
Union sought to meet with Respondent to assure compliance
with the terms of the Order. Thus, on April 12, 2010,53 the
Union wrote to Respondent requesting that it, pursuant to Judge
Seabright’s order, rescind certain unilaterally made changes to
employees’ terms and conditions of employment. In addition,
in April and May at least three meetings took place to discuss
implementation of the 10(j) order. All discussions centered
around unilateral changes that Respondent had implemented
including room assignments for housekeepers, duties given to
housekeepers, the medical plan, and a drug rider. Minicola said
the Hotel had no intention of making retroactive payments into
the 401(k) plan or for gift certificates. Some of the infor-
mation requests the Union sent to Respondent, including the
June 8, 2010 information request were for the purpose of de-
termining what terms and conditions of employment had
changed since December 2007 when Respondent refused to
recognize the Union in order to restore the status quo pursuant
to Judge Seabright’s order. Thus, on June 14, 2010,54 Mori
sent Minicola a list of the tentative agreements that had been
entered into and asked Minicola to confirm them. Minicola did
not respond. Minicola insisted that these early sessions were
bargaining sessions, yet at the June 24, 2010 meeting when
Minicola declared impasse, Mori responded how can there be
impasse if you haven’t confirmed the tentative agreements
reached. By June 24, 2010, Respondent had not provided the
Union with any of the information to determine what changes
in unit employees’ terms and conditions of employment had
taken place. Moreover, on June 24, 2010, Respondent declared
impasse due to economic exigencies without providing the
Union with the underlying financial information needed to
assess the validity of Respondent’s claim. Included in the
changes Minicola announced pursuant to the impasse were
changes in room assignments and stopping matching contribu-
tions to the 401(k) plan. When Mori said the changes violated
Judge Seabright’s 10(j) order, Minicola replied, “Fuck the
judge. He’s wrong.” Mori inquired about his previous infor-
mation requests and said he needed the information for bargain-
ing in order to determine the status quo. Minicola said Judge
Seabright’s order required the status quo to begin in 2010.
Minicola claimed the information requests were a ploy by the
Union to slow down bargaining. In discussing whether Re-
spondent’s actions violated Judge Seabright’s order, Minicola
said, “It’s not illegal unless I go to jail.” Minicola denied he
said, “Fuck the judge.” I found Minicola to be an evasive, of-
ten unresponsive witness whose statements in many cases were
absurd or self-serving. I credit Mori’s testimony which I found
53 GC Exh. 36.
54 GC Exh. 52.

HTH CORP. 753
consistent, responsive, and detailed. Judge Kennedy also found
Minicola an implausible, disingenuous witness.55
The 401(k) plan
Consolidated complaint paragraph 7 alleges that on or about
November 19, 2009, Respondent, without notice to or bargain-
ing with the Union, notified employees that it would cease
matching unit employees’ contributions to its 401(k) plan, and
did so effective January 1 to May 1, 2010.
Respondent has maintained a 401 (k) plan56 and made
matching employee contributions to that plan from at least De-
cember 1, 2007, until January 1, 2010. Upon an employee’s
completion of 1 year of service, Respondent would match 100
percent of the employee’s pretax contributions up to I percent
of the employee’s compensation. After an employee had com-
pleted 3 years of service, Respondent would match 100 percent
of the employee’s pretax contributions up to 3 percent of the
employee’s compensation. As noted above, Respondent re-
fused to recognize or bargain with the Union until March 29,
2010, when United States District Court Judge Seabright or-
dered Respondent to recognize and bargain with the Union.
However, on November 19, 2009,57 Respondent announced it
was ceasing matching contributions to employees’ 401(k) plans
as of January 1, 2010. This change was made without notice to
or bargaining with the Union. On May 1, 2010,58 Respondent
resumed making matching contributions to employee 401(k)
plans but has not reimbursed employees for the loss of employ-
er contributions from January 1 to May 1, 2010.
In their brief, Respondent seems to suggest that the Union
may have waived its claim to back payments from Respondent
for employer contributions from January 1 to May 1, 2010, by
not continuing to request information requested from Respond-
ent in November 2009 regarding a list of employees affected by
changes to the 401(k) plan. This argument is ludicrous. Recall
that Respondent refused to recognize or bargain with the Union
until Judge Seabright’s order of March 29, 2010. Only then on
about May 5, 2010, did Respondent furnish part of the infor-
mation responsive to the Union’s request. There was no waiver
by the Union. Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
708 fn.12 (1983).
There can be no doubt that employer contributions to a
401(k) plan is a mandatory subject of bargaining. Lakeside
Healthcare Center, 340 NLRB 397, 399 (2003). The unilateral
failure to make matching payments.
Respondent contends that economic exigencies permitted
them to make the unilateral changes in ceasing matching pay-
ments to employees’ 401(k) plan citing Bottomline Enterprises,
302 NLRB 373 (1991). Respondent’s reliance on Bottomline
Enterprises is misplaced. Where parties are engaged in negoti-
ations over a collective-bargaining agreement, an employer has
a heightened obligation to refrain from unilateral changes. An
employer must refrain from implementation of any changes to
terms and conditions of employment, unless and until an over-
55 JD(SF)–35–09, September 30, 2009, p. 40, LL. 1–6, 21–22.
56 GC Exh. 33.
57 GC Exh. 34.
58 GC Exh. 39.
all impasse has been reached on bargaining for the agreement
as a whole.’ Bottom Line Enterprises, 302 NLRB at374.
Overall impasse was not possible on June 24, 2010, when
Minicola announced his intent to unilaterally cease making
401(k) contributions and to implement the increase to house-
keepers’ daily room assignments, because formal contract ne-
gotiations had not resumed by that time. Contrary to Minico-
la’s assertion, the meetings to this point dealt with establishing
the status quo pursuant to Judge Seabright’s 10(j) order. Evi-
dence of the lack of contract negotiations is affirmed in that the
three meetings between Mori and Minicola in April and May
2010 did not include the negotiating committees, which ran
counter to the established past practice for contract negotiations
between the parties. Mori credibly testified that all three meet-
ings with Minicola were to lay the foundation for re-starting
contract negotiations. Actual contract negotiations resumed on
August 30, 2010, with the bargaining committee members pre-
sent. Moreover, Respondent cannot declare impasse on a few
subjects, and then implement unilateral changes based on them.
Bottom Line, supra, requires an overall impasse prior to an
employer’s implementation of any unilateral change. That is
simply not the case here.
There are only a few exceptions to Bottom Line’s prohibition
on unilateral changes during contract negotiations. An employ-
er engaged in contract negotiations may implement a unilateral
change without reaching an overall impasse when a union, in
response to an employer’s diligent and earnest efforts to engage
in bargaining, insists on continually avoiding or delaying bar-
gaining, and when economic exigencies compel prompt action.
An employer must proffer evidence of its economic circum-
stances at the time it takes action. Bottom Line, supra at 374.
In RBE Electronics of S.D., 320 NLRB 80, 81 (1995), the
Board further defined the economic exigency exception:

In cases subsequent to Bottom Line, the Board has character-
ized the economic exigency exception as requiring a heavy
burden, and as involving the existence of circumstances
which require implementation at the time the action is taken
or an economic business emergency that requires prompt ac-
tion. . . . Absent a dire financial emergency, the Board has
held that economic events such as loss of significant accounts
or contracts, operation at a competitive disadvantage, or sup-
ply shortages do not justify unilateral action. [Citations omit-
ted.]

In RBE, supra, the Board noted an additional exception
where an employer is confronted with an economic exigency
compelling prompt action short of the type relieving an em-
ployer of its obligation to bargain entirely. The employer will
satisfy its statutory burden by providing the union with ade-
quate notice and an opportunity to bargain. RBE Electronics of
S.D., 320 NLRB at 81–82. This exception is “limited only to
those exigencies in which time is of the essence and which
demand prompt action Therefore, Respondents are required to
“show a need that the particular action proposed be implement-
ed promptly.” Additionally, consistent with the requirement
that employers prove the proposed change was “compelled,”
Respondents would have to show that the exigency was caused

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
by external events, was beyond the employer’s control, or was
not reasonably foreseeable. RBE, supra at 82.
On June 24, 2010, Respondent presented no evidence of an
economic exigency, either catastrophic or lesser requiring im-
plementation of changes to the 401(k) plan. Minicola merely
made reference to Respondent’s general economic conditions
and poor economic performance in 2008 and 2009. However,
Respondent never presented any evidence until August 2010 of
economic exigency or an unforeseen exigency compelling im-
mediate action. Moreover, the evidence presented in August
201059 was insufficient to assess whether there was an econom-
ic exigency.
Respondent suggests in their brief that the Union delayed
and avoided bargaining. Assuming, arguendo, that Mori de-
clined to bargain about the 401(k) contributions or the rooms
assignments, in the period April to June, it must be recalled that
Respondent had yet to confirm any tentative agreements as
ordered in the 10(j) order nor had Respondent furnished the
Union with information concerning changes that had been
made to the 401(k) plan or to housekeeping room assignments.
As of June 24, 2010, the Union was not in a position to bargain,
lacking information to do so.
I find that in ceasing to make matching contributions to em-
ployee 401(k) plans without notice to or bargaining with the
Union, Respondent violated Section 8(a)(1) and (5) of the Act.
The room assignments
Consolidated complaint paragraph 16 alleges that on about
June 24, 2010, Respondent unilaterally and without notice to or
bargaining with the Union changed terms and conditions of
employment by increasing the number of rooms housekeepers
must clean per shift from 16 to 18 in the Ocean Tower and from
15 to 17 in the Beach Tower.
In HTH I, the Board found Respondent violated Section
8(a)(1) and (5) of the Act around December 1, 2007, by unilat-
erally and without bargaining with the Union changing house-
keepers’ workloads by adding 2 additional rooms to clean per
day, from 16 to 18 rooms per day in the Ocean Tower and from
15 to 17 in the Beach Tower. On March 29, 2010, the U.S.
District Court issued its Injunctive Order requiring Respondent
to rescind any unilateral changes upon request by the Union.
By letter60 dated April 12, 2010, Mori directed that the daily
housekeeping room assignments be restored to 15 per day in
the Beach Tower and 16 per day in the Ocean Tower. Re-
spondent then restored the daily room assignments for house-
keepers to 15 per day in the Beach Tower and 16 per day in the
Ocean Tower sometime in April 2010. In a letter61 dated June
24, 2010, Respondent announced to the Union that, due to eco-
nomic hardship, it was, inter alia, reinstating housekeeping
room assignments as of July 1, 2010. By letter dated June 25,
2010, Mori confirmed that Respondent was rescinding house-
keeping room assignments of 15 rooms in the Beach Tower and
16 rooms in the Ocean Tower as of July 1.
Respondent’s housekeeper of 16 years, Virginia Recaido,
was terminated by Respondent in December 2007. Both Judge
59 GC Exhs. 78,79.
60 GC Exh. 36.
61 GC Exh. 54.
Seabright and the Board in HTH I found that her termination
violated Section 8(a)(1) and (3) of the Act and ordered her rein-
stated. Respondent reinstated Recaido in April 2010 after
Judge Seabright’s order issued. Recaido testified without con-
tradiction that before December 2007 she cleaned 16 rooms per
shift in the Ocean Tower and 15 rooms in the Beach Tower. On
April 18, 2010, Recaido and 30 other room attendants were told
by Assistant Housekeeper Bobbi Hind62 that they were to clean
15 rooms in the Beach Tower and 16 rooms in the Ocean Tow-
er per shift. On July 1, 2010, Hind told 30 assembled room
attendants that they were to clean per shift 18 rooms in the
Ocean Tower and 17 rooms in the Beach Tower. From July 1
to September 16, 2010, Recaido cleaned 18 rooms per shift in
the Ocean Tower. On September 16, 2010, Recaido’s work
assignments were reduced to 16 rooms per shift in the Ocean
Tower. However, from October 1, 2010, to April 11, 2011,
Recaido has had to clean 18 rooms per shift in the Ocean Tow-
er.
According to Respondent’s brief, the room assignments re-
verted back to the number set forth in the District Court Order
in September 2010 and then fluctuated. However, Recaido’s
work assignment sheets for the period July 1 to December 5,
2010,63 support her testimony. The July 1, 2010 changes made
by Respondent were done without notice to or bargaining with
the Union.
Changing the number of rooms housekeepers are assigned to
clean per day has a material and substantial impact on house-
keepers’ terms and conditions of employment. By increasing
the number of rooms assigned to housekeepers per day by two
in each tower, Respondent increased the number of rooms the
housekeepers are responsible for cleaning, and therefore in-
creased housekeepers’ overall workload. Such a change was
impermissible without first providing the Union with an oppor-
tunity to bargain.’ HTH I, supra at 2, 35, 37.
Respondent suggests in their brief that there has not been an
actual increase to the number of rooms housekeepers actually
clean because housekeepers might encounter do-not-disturb
rooms or rooms that refuse service. The evidence does not sup-
port this contention. Recaido testified that housekeepers do not
know whether they will encounter any rooms with do-not-
disturb signs when they receive their daily room assignments.
As a result of this uncertainty, housekeepers still increase the
pace of their work to clean two additional rooms a day because
they are not always fortunate enough to encounter rooms that
do not require service.
Respondent contends that any changes to room assignments
were de minimus, citing Oneida Knitting Mills, Inc., 205 NLRB
500 (1973), contending that the changes lasted just a few
months. The Board has dealt with this issue in HTH I, finding
the changes in room assignments a mandatory subject of bar-
gaining.
Moreover, Respondent disciplined64 housekeepers who
failed to clean their assigned number of rooms. Respondent’s
62 Hind did not testify at the hearing.
63 GC Exh. 93.
64 GC Exh. 24, pp. A10, 14, 21, 28, I 15, 21, 31, 52. R.’ Exh. 14, pp.
53, 98, and 100.

HTH CORP. 755
own exhibit indicates that after July 1, 2010, when the unilat-
eral increase went into effect, Respondent disciplined house-
keeper Marissa Julian65 for failing to clean the 17 rooms as-
signed to her in the Beach Tower, and directed her to pace her-
self properly to complete all room assignments. Based on the
foregoing, Respondent cannot sustain their de minimus argu-
ment, especially when the Board has held that the mere threat
of discipline for breach of a unilaterally implemented policy is
sufficient to establish that the policy constitutes a material
change in working conditions. Ferguson Industries, 349 NLRB
617, 618–619 (2007).
Respondent contends further than Bottom Line Enterprises,
302 NLRB 373 (1991), permits Respondent to make the unilat-
eral changes given the Union’s refusal to bargain and Respond-
ent’s own economic exigencies.
This is the same argument Respondent has made concerning
cessation of contributions to employees’ 401(k) plans discussed
above in section C,1. According to Minicola, on June 24, 2010,
he told the Union that he needed to change the number of room
assignments for operational and financial reasons but Mori
refused to discuss room assignments absent an overall collec-
tive-bargaining agreement. Minicola said he would implement
the room assignment changes and the parties could discuss the
effects. Mori made it clear that negotiations would not take
place until his employee negotiating committee was reestab-
lished after an absence of over 2 years. As noted above, no
overall impasse was ever reached in collective bargaining be-
tween the parties. Despite this, Minicola provided no evidence
of any economic exigency or other unforeseen circumstances
justifying the need to immediately implement room assignment
changes.
Respondent contends that they gave the Union notice of the
changes and an opportunity to bargain about the room assign-
ments. As noted above, in order to avoid piecemeal bargaining
an employer must refrain from implementing any changes until
there is overall impasse, absent an exception, not merely im-
passe on some subjects.
By implementing the changes to room assignments on July
1, 2010, during collective bargaining for a first contract without
reaching overall impasse, Respondent violated Section 8(a)(1)
and (5) of the Act.
6. The information requests
Consolidated complaint paragraphs 10, 11, 12, 13, 14, and
15 allege that Respondent failed to provide or failed to provide
in a timely fashion, information the Union had requested that
was necessary for and relevant to the Union’s performance of
its duties as the exclusive collective-bargaining representative
of unit employees.
November 24, 2009
After discovering that Respondent planned to cease making
matching 401(k) contributions for unit employees, on Novem-
ber 24, 2009, Mori sent an information request66 to Minicola
requesting the (1) names, job titles, rates of pay, and hire dates
of all bargaining unit employees who would be affected by
65 R. Exh. 14, p. 53.
66 GC Exh. 35.
Respondent’s decision to change the 401(k) plan; (2) a copy of
the 401(k) plan for the last 3 years; (3) an auditor’s financial
report for the past 2 years, including balance sheets, statements
of operations and statements of cash flow; (4) corporate income
tax schedules for the past 2 years; and (5) a schedule showing a
breakdown of executive compensation, wages for unit employ-
ees, and wages for all other employees for the past 2 years.
Only after Judge Seabright’s order of March 29, 2010, did
Respondent on about May 5, 2010, furnish information respon-
sive to item (2). Respondent has provided no other infor-
mation.
Respondent asserts that they satisfied their duty of providing
information by suggesting that the Union may have waived its
claim to information about the 401(k) plan by not continuing to
request information requested from Respondent in November
2009. This argument is without merit. Recall that Respondent
refused to recognize or bargain with the Union until Judge Sea-
bright’s order of March 29, 2010. Only then on about May 5,
2010, did Respondent furnish part of the information respon-
sive to the Union’s request. Moreover, even if Respondent
claimed such a waiver, they would need impressive evidence.
As explicated in Plough, Inc., 262 NLRB 1095, 1104 (1982):

A “waiver” will not be lightly inferred however, and a waiver
of a statutory right to requested relevant information must be
clear and unmistakable. Globe-Union, Inc., 233 NLRB 1458
(1977). A waiver requires “conscious relinquishment by the
Union, clearly intended and expressed.” Perkins Machine
Company, 141 NLRB 98, 102 (1963).

There was no waiver by the Union. Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 708 fn. 12 (1983). By failing to pro-
vide the information requested in its November 24, 2009 in-
formation request Respondent violated Section 8(a)(1) and (5)
of the Act.
April 21, 2010
By letter67 dated April 21, 2010, Union Business Agent Karl
Lindo requested information from Respondent in conjunction
with a grievance filed on behalf of terminated employee George
Ishikawa. The information request included, inter alia, items
such as: investigative notes, reports, statements, interviews,
memos related to the Respondent’s effort to discover if the
employee violated Respondent’s rules; names, addresses, and
positions of witnesses to the relevant incidents; names, address-
es, and positions of all management personnel who made rec-
ommendations for or against discipline and; prior disciplinary
actions of other employees for violations of the same rules. On
April 26, 2010,68 Minicola acknowledged receipt of Lindo’s
April 21 letter, but provided none of the requested information.
In letters of May 2169 and June 8, 2010,70 the Union renewed
its request for information in Lindo’s April 21, 2010 letter. To
date none of the requested information has been provided.
This information is directly related to terms and conditions
of employment of a disciplined bargaining unit employee and is
67 GC Exh. 37.
68 GC Exh. 38.
69 GC Exh. 41.
70 GC Exh. 50.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
therefore presumptively relevant. Disneyland Park, 350 NLRB
1256, 1257 (2007). With respect to Respondent’s investigative
notes, witness information, and information about management
decisionmakers, Respondent has not offered a timely confiden-
tiality claim to balance against the relevance of the Union’s
request. Exxon Co. USA, 321 NLRB 896, 898 (1996) (in order
to trigger a balancing test, an employer must first timely raise
and prove its confidentiality claim),
Lindo also requested statements from certain managers and
employees which Respondent relied on to terminate Ishikawa.
Minicola told Lindo that witness statements were used in decid-
ing to discipline Ishikawa. Thus, the statements were relevant
to a determination of the validity of Ishikawa’s termination.
Under current Board law, the duty to furnish relevant infor-
mation does not encompass the duty to furnish witness state-
ments themselves. Fleming Cos., 332 NLRB 1086, 1087
(2000); Anheuser-Busch, 237 NLRB 982, 984 (1978). Howev-
er, the Board has indicated that in order to constitute a witness
statement, the witness must be given assurances that the state-
ment will remain confidential. New Jersey Bell Telephone Co.,
300 NLRB 42, 43 (1990). In this case, there is no evidence that
Respondent provided confidentiality assurances to witnesses
which would otherwise qualify their statements as “witness
statements.” Even assuming, arguendo, that the statements
themselves are privileged from disclosure to the Union under
Fleming and Anheuser-Busch, the Union is entitled to receive
summaries of these relevant statements. Pennsylvania Power
Co., 301 NLRB 1104 (1991).
Respondent contends that there is no grievance procedure in
effect, citing Minicola’s letter71 to Lindo of April 26, 2010.
However, that same letter acknowledges that Respondent:

. . . [W]ould follow the employee handbook in effect at the
time. The procedure provided that the Union could appeal the
decision first to the Hotel’s Human Resource Manager. If the
Union was dissatisfied with the decision following the first
level appeal, the Union had a final appeal to the Hotel’s Gen-
eral Manager.

Respondent also contends it is their policy not to provide the
Union with employee disciplinary records.
Respondent also cites Swearingen Aviation Corp., 227
NLRB 228, 236 (1976), and Asarco, Inc., 316 NLRB 636
(1995), for the proposition that absent a grievance-arbitration
provision in a collective-bargaining agreement, an employer
has no obligation to provide information to a union regarding
employer discipline.
The absence of a contractual grievance-arbitration procedure
does not extinguish the Union’s right to or Respondent’s con-
comitant obligation to provide information related to discipli-
nary actions involving bargaining unit employees. As the Board
found in affirming the administrative law judge in Westside
Community Mental Health Center, 327 NLRB 661, 667 (1999):

While the grievance procedure was in-house and not based on
a collective-bargaining agreement, the Union’s representa-
tional interests are not any less. The Union’s interest was le-
gitimate and substantial. It was representing its members and,
71 GC Exh. 38.
the Union had a right to request information relevant to its de-
termination of whether Respondent breached existing practic-
es and policies in disciplining Hollenback and Spencer, to ad-
vise employees of their rights in the event they were treated
disparately, and to otherwise represent these members in an
appropriate fashion either through the internal grievance
mechanism or otherwise.

Here, there is no dispute that Respondent followed an exist-
ing two-step appeals process and there was no existing contrac-
tual grievance-arbitration procedure. This appeals process
served as a type of in-house grievance procedure that the Union
or employees could use to appeal disciplinary actions. Clearly,
under Westside Community Health Center, the Union had a
substantial representational interest and obligation to its mem-
bers in determining if Respondent breached their policies in
disciplining employees and to represent those employees in the
internal grievance procedure.
Respondent’s citations to Swearingen Aviation Corp. and
Asarco, Inc., are inapposite. In Swearingen, there was no certi-
fied collective-bargaining representative of the employees,
hence no obligation to furnish information. In Asarco, the
Board affirmed an administratve law judge’s finding that the
employer was required to furnish the union with information to
process a grievance. However, Asarco does not stand for the
proposition that the union is entitled to information only if there
is a contractual grievance-arbitration process.
Accordingly, I find that Respondent, in refusing to provide
information requested on April 21, 2010, in conjunction with a
grievance filed on behalf of terminated employee George Ishi-
kawa, violated Section 8(a)(1) and (5) of the Act.
May 28, 2010
By letter72 dated May 28, 2010, Lindo requested information
from Respondent in conjunction with a grievance filed on be-
half of disciplined employee Villanueva. The information re-
quest included, inter alia, items such as: the specific rule violat-
ed, investigative notes, reports, statements, interviews, memos
related to the Respondent’s effort to discover if the employee
violated Respondent’s rules; names, addresses, and positions of
witnesses to the relevant incidents; names, addresses, and posi-
tions of all management personnel who made recommendations
for or against discipline and; prior disciplinary actions of other
employees for violations of the same rules. In a letter dated
June 18, 2010,73 the Union renewed its request for information
in Lindo’s May 28, 2010 letter and in addition requested a copy
of Villanueva’s written warning and all statements and notes
used by Respondent to determine the disciplinary action. To
date none of the requested information has been provided.
This information is directly related to terms and conditions
of employment of a disciplined bargaining unit employee and is
therefore presumptively relevant. Disneyland Park, supra.
Respondent contends that there is no grievance procedure in
effect, citing Minicola’s letter74 to Lindo of April 26, 2010.
However, that same letter acknowledges that Respondent:

72 GC Exh. 48.
73 GC Exh. 53.
74 GC Exh. 38.

HTH CORP. 757
. . . would follow the employee handbook in effect at the
time. The procedure provided that the Union could appeal the
decision first to the Hotel’s Human Resource Manager. If the
Union was dissatisfied with the decision following the first
level appeal, the Union had a final appeal to the Hotel’s Gen-
eral Manager.

Respondent also contends it is their policy not to provide the
Union with employee disciplinary records.
For the reasons set forth above in section III, I find that in re-
fusing to provide information requested on May 28, 2010, in
conjunction with a grievance filed on behalf of disciplined Vil-
lanueva, violated Section 8(a)(1) and (5) of the Act.
June 8, 2010
By letter75 dated June 8, 2010, the Union requested infor-
mation from Respondent including (1) disciplinary action is-
sued to housekeeping employees from December 1, 2001, to
the present. (2) Daily room assignments for housekeeping
employees from April 19, 2010, to the present. (3) A list of
employees who earned perfect attendance awards from 2007 to
2009 and the number of days off each employee received per
year. (4) All department work schedules from December 1,
2007, to the present. Other than furnishing on December 7,
2010, departmental work schedules for the period August 29 to
December 4, 2010, Respondent has furnished no information
responsive to the Union’s June 8, 2010 information request.
In defense, Respondent contends its policy is not to give out
disciplinary records, that it had restored room assignments, that
it did not have records on perfect attendance awards for 2007,
that Mori should have told Respondent who did not receive
perfect attendance awards for 2008–2009, and that Respondent
provided some work schedules.
Bargaining unit employee disciplinary records are presump-
tively relevant and an employer must provide them to the union
upon request. Grand Rapids Press, 331 NLRB 296, 299 (2000);
Antioch Rock & Ready Mix, 328 NLRB No. 116, slip op. at 1
(1999) (not reported in Board volumes).
The daily room assignments for housekeeping employees are
presumptively relevant. See Superior Protection, Inc., 341
NLRB 267, 269 (2004). See Disneyland Park, supra at 1257.
Respondent maintains an employee incentive program called
the perfect attendance award in its employee handbook.76 The
award consists of an additional paid day off when an employee
has no sick leave, suspension, leave of absence without pay,
and no more than four tardies within a calendar year. The em-
ployee may accumulate up to 5-paid days off if the employee
continues to meet the requirements for multiple consecutive 12-
month periods.
The perfect attendance award is an unmistakable term and
condition of employment because it is an incentive program
which rewards employees for stellar attendance at work. The
requested information is therefore presumptively relevant be-
cause it is directly related to a term and condition of employ-
ment for bargaining unit employees and lies at the core of the
75 GC Exh. 49.
76 R. Exh. 7, p. 27.
employee-employer relationship. Cross Pointe Paper Corp.,
317 NLRB 558, 558–559 (1995).
Work schedules and information relating thereto are pre-
sumptively relevant. Castle Hill Health Care Center, 355
NLRB 1156, 1183–1184 (2010); Le Rendezvous Restaurant,
323 NLRB 445, 453 (1997).
Minicola waited until about December 7, 2010, to finally
provide the Union with copies of departmental work schedules
from August 29 to December 4, 2010, but Minicola did not
provide schedules for the period prior to August 29, 2010.
Minicola did not offer an explanation for his 6 months of daw-
dling before providing the Union with some requested work
schedules. By unreasonably delaying the provision of some
work schedules for 6 months, Respondent violated Section
8(a)(5) and (1). Hawaii Tribune-Herald, 356 NLRB 661, 663,
684–685. (2010).
Rather than providing Respondent with a defense, Minico-
la’s testimony revealed an absolute failure to comprehend that
all the requested information was presumptively relevant and,
therefore, the Union was not required to provide Respondent
with any further justification for these requests. Disneyland
Park, supra at 1257.
By failing to provide or to provide the information requested
on June 8, 2010, in a timely manner, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
July 16, 2010
By letter77 dated July 16, 2010, the Union requested infor-
mation from Respondent concerning employee Villanueva’s
suspension. The information requested included a copy of
Villanueva’s disciplinary action and the reason he was sus-
pended together with supporting documents. The information
request was renewed by letter78 of July 26, 2010, and added a
request for Respondent’s investigative records. On August 6,
2010,79 the Union renewed its July 16 and 26 requests and fur-
ther requested any documents relied upon in terminating Vil-
lanueva. Other than furnishing a copy of the Counsel-
ing/Infraction of company Rules Form signed on July 28, 2010,
by Minicola and Ko, Respondent has furnished none of the
information requested.
This information is directly related to terms and conditions
of employment of a disciplined bargaining unit employee and is
therefore presumptively relevant. Disneyland Park, supra at
1257.
Respondent contends that there is no grievance procedure in
effect, citing Minicola’s letter80 to Lindo of April 26, 2010.
However, that same letter acknowledges that Respondent:

. . . would follow the employee handbook in effect at the
time. The procedure provided that the Union could appeal the
decision first to the Hotel’s Human Resource Manager. If the
Union was dissatisfied with the decision following the first
level appeal, the Union had a final appeal to the Hotel’s Gen-
eral Manager.

77 GC Exh. 84.
78 GC Exh. 85.
79 GC Exh. 86.
80 GC Exh. 38.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
Respondent also contends it is their policy not to provide the
Union with employee disciplinary records.
For the reasons cited above in refusing to provide the infor-
mation requested by the Union in its July 16, 2010 letter, Re-
spondent violated Section 8(a)(1) and(5) of the Act.
August 12, 2010
Since at least June 24, 2010, Respondent has asserted to the
Union that it was in financial difficulties to warrant changes to
items agreed to tentatively during collective bargaining. Thus,
in his June 25, 2010 letter81 to Mori, Minicola stated:

As you know, at our meeting (June 24, 2010) I provided no-
tice to you and the other Union officials present that because
of ongoing economic hardships, the Hotel, as of July 1, 2010,
will be, but not limited to, reinstating the previous housekeep-
ing rooms guideline, providing notice of the temporary stop-
page of the company contribution to the 410(k) plan for em-
ployees as of August 1, 2010 and maintaining the drug plan.

Accordingly, on June 25, 2010,82 since it appeared Respond-
ent was “pleading poverty” Mori demanded the opportunity to
have a CPA review Respondent’s financial records to verify
Respondent’s assertion. Mori requested (1) an independent
auditor’s complete financial report for the past 2 years includ-
ing balance sheets, statement of operations, and statements of
cash flows. (2) Corporate income tax returns for 2 years. (3)
Interim financial statements for the current year. (4) A schedule
showing breakdowns of executive compensation, wages paid to
bargaining unit employees and wages paid to all other employ-
ees for the past 2 years.
On June 29, 2010,83 Minicola responded to Mori’s June 25
letter. Minicola agreed to provide the “independent auditor”
only the information that had been provided to Subregion 37
during its investigation of the unfair labor practice.84 This in-
formation consisted of one-page Statements of Income and
Loss for 2008 and 2009.
The Union selected CPA Lowell Nagaue to review Respond-
ent’s financial information and so advised Respondent on June
30, 2010.85 On August 12, 2010,86 Nagaue indicated the only
financial information he had received from Respondent were
Statements of Income and Loss for 2008 and 2009. Nagaue
stated that these statements were insufficient to analyze the
financial condition of the Hotel. He further asked Respondent
to provide him with the information Mori had requested on
June 25, 2010. On August 23, 2010,87 Nagaue reiterated his
information request of August 12, 2010. At the hearing,
Naguae explained that the Statements of Income and Loss were
insufficient to analyze the financial strength of Respondent.
In their brief, Respondent misrepresents Nagaue’s testimony
concerning the adequacy of the information he needed to assess
their financial status. Respondent stated that Nagaue testified
81 GC Exh. 54.
82 GC Exh. 55.
83 GC Exh. 57.
84 GC Exhs. 78, 79.
85 GC Exh. 58.
86 GC Exh. 72.
87 GC Exh. 74.
that there were no accounting standards for what information is
necessary to determine the financial condition of a company.
What Nagaue actually said was there were no accepted ac-
counting principles for determining the financial condition of a
company when engaged to do so by the Union.88 Respondent
further mischaracterizes Nagaue’s testimony concerning what
financial records he needs to make an assessment of financial
status of a company, suggesting that Respondent’s one-page
Statements of Income were sufficient. Nagaue made it clear
that while he had not always received all of the financial rec-
ords he requested when performing a financial assessment, he
received at least interim financial statements from the Compa-
ny’s accountant.89
To date, other than the Statements of Income and Loss, Re-
spondent has furnished no other financial information to the
Union or to Nagaue.
Board law is unmistakably clear that an employer’s claim of
inability to pay triggers a concomitant duty to supply to a un-
ion, upon request, financial information to substantiate its
claim. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); R.E.C.
Corp., 307 NLRB 330, 332–333 (1992), citing Clemson Bros.,
290 NLRB 944 (1988).
Unsurprisingly, uncertified financial statements have not
been considered sufficient to meet an employer’s obligations
under Truitt, supra, R.E.C. Corp., 307 NLRB at 33, or Hiney
Printing Co., 262 NLRB 157,162 (1988).
In REC, supra at 333, the Board affirmed the administrative
law judge who found:

Respondent argues initially that on December 1 it offered to
supply the Union with information adequate to support its
claim of financial inability to pay. Albany Garage, 126 NLRB
417, 418 (1960). I do not agree. While Respondent did offer
to supply the Union its financial statements for the past 5
years, these statements for the past 2 years were not certified
. . . . Indeed even absent such evidence of financial “loose-
ness” of employers, uncertified financial statements have not
been deemed sufficient to meet the employers’ obligations
under Truitt American Model & Pattern, 277 NLRB 176, 184
(1985); Hiney Printing Co., 262 NLRB 157, 162 (1982); see
also Tony’s Meats, 211 NLRB 625, 626 (1974). (Employer
must permit CPA to examine employer’s records.)

Nagaue testified that Respondent’s financial summaries were
uncertified and that he was unable to verify any of the figures
provided by Respondent. Nagaue explained that certification is
necessary for the reader of a financial statement to place reli-
ance on the figures contained in any document.
Respondent argues that the Union’s request for financial in-
formation must be weighed against an employer’s confidentiali-
ty concerns. Respondent cites Albany Garage, Inc., 126 NLRB
417 (1960), to support its argument.
While confidentiality is a factor that may limit disclosure of
certain documents, the burden is on the objecting party to estab-
lish the need to limit disclosure. The administrative law judge,
affirmed by the Board, in REC, supra at 333, held:

88 Tr. 1954, LL. 7–11.
89 Tr. 1957, LL.1–25, Tr. 1958, LL. 1–5.

HTH CORP. 759
However, the union’s interest in arguably relevant in-
formation does not always predominate over all other in-
terests. There are situations where an employer may be
justified in limiting or conditioning the disclosure of oth-
erwise relevant information. Detroit Edison Co. v. NLRB,
440 U.S. 301 (1979); Yakima Frozen Foods, 130 NLRB
1269, 1273 (1960), enfd. in pertinent part 316 F.2d 389
(D.C. Cir. 1963). In evaluating a requested condition, the
important question to be decided is whether the employer
has asserted a legitimate and substantial justification for
limiting the disclosure. Detroit Edison, supra; Plough,
Inc., 262 NLRB 1095, 1096 (1982). The party asserting
the need for the limitation or condition has the burden of
proof on that question. Washington Gas Light Co., 273
NLRB 116, 117 (1984); Boise Cascade Co., 279 NLRB
422, 431 (1986); McDonnell Douglas Corp., 224 NLRB
881, 890 (1976).

Here, Respondent has provided no compelling evidence to
limit disclosure of the financial information necessary to estab-
lish their claim of financial difficulties, particularly in view of
Nagaue’s signature of a confidentiality statement90 regarding
Respondent’s financial records.
Moreover, Albany Garage, supra, cited by Respondent is
clearly distinguishable. There the Board concluded that the
employers had furnished the union financial statements, plus
comparative profit and sales and profit statements; no question
was ever issued regarding the accuracy of the financial infor-
mation submitted by the union; these statements had been ac-
cepted as adequate by banks with which respondent did busi-
ness and the Internal Revenue Service (IRS); and the union had
been furnished in prior years with the same records and had
never rejected such documents as inadequate. Here, the factors
relied on by the Board in Albany Garage were not present.
Most importantly, the Nagaue questioned the accuracy of the
documents offered by Respondent, and in fact had reasonable
grounds for making such a contention.
I find that in failing to provide to Nagaue the financial rec-
ords requested by the Union to establish Respondent’s claim of
“poverty” Respondent violated Section 8(a)(1) and (5) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent, HTH Corporation, Pacific Beach Corpo-
ration and KOA Management, LLC, together doing business as
Pacific Beach Hotel, constitutes a single employer engaged in
commerce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Each is there-
fore jointly and severally responsible for the remedy of the
unfair labor practices of the others.
2. International Longshore and Warehouse Union, Local 142
is a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times since the Board certified it as the 9(a) repre-
sentative of the hotel employees on August 15, 2005, the Union
has represented a majority of the Hotel’s employees in the ap-
propriate bargaining unit.
90 GC Exh. 68.
4. By engaging in the following conduct, the Respondent
committed unfair labor practices in violation of Section 8(a)(1)
of the Act.
a. On or about May 14, 2010, disparaged the Union by noti-
fying employees that Union agents Dave Mori and Carmelita
Labtingao were barred from entering the Hotel.
b. On or about September 10, 2010, by engaging in surveil-
lance of its employees activities protected by Section 7 of the
Act.
c. On or about September 10, 2010, by threatening Union
Agent Patrick DeCosta with removal from a public sidewalk
while he was engaged in handing out union literature to Re-
spondent’s employees.
5. The Respondent committed unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act by issuing a written
warning to Rhandy Villanueva on May 20, 2010, by suspending
him on July 12, 2010, and by discharging him on July 28, 2010,
because he was a union activist.
6. By engaging in the following conduct, the Respondent
committed unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act.
a. On or about January 1 through May 1, 2010, the Respond-
ent unilaterally and without bargaining with the Union ceased
making matching contributions to employees’ 401(k) plans.
b. On or about May 6, 2010, Respondent unilaterally and
without bargaining with the Union barred Union Representa-
tives Dave Mori and Carmelita Labtingao from the hotel prop-
erty in violation of the parties agreed upon access policy.
c. On July 1, 2010, the Respondent unilaterally and without
bargaining with the Union changed housekeepers’ workloads
by adding 2 additional rooms to clean per day, from 16 to 18
rooms per day in the Ocean Tower and from 15 to 17 in the
Beach Tower.
d. In November 2009 and in April, May, June, July, and Au-
gust 2010, the Union made various demands for relevant in-
formation concerning Respondent’s 401(k) plan and employees
who participated in the plan, the grievance regarding George
Ishikawa’s discipline, the grievance regarding Rhandy Vil-
lanueva’s written warning, the discipline of housekeeping em-
ployees, their work schedules and awards, the grievance con-
cerning Villanueva’s suspension and termination, and financial
data regarding Respondent’s claim of poverty. The Respondent
did not reply to any of these requests or did not provide the
requested information in a timely manner.
REMEDY
Counsel for the Acting General Counsel requests that the
administrative law judge order a third broad cease-and-desist
order that a senior level management official to read the notice
to employees to assembled employees during worktime, that
the notice to employees be read to employees assembled during
worktime by Respondent’s CEO, Corine Watanabe, and Presi-
dent John Hayashi, in the presence of Minicola or in the alter-
native that Minicola, be required to publicly read the notice to
employees in the presence of Watanabe and Hayashi. Counsel
for the Acting General Counsel also requests that the remedy
permit a Board agent to be present for the reading of the notice
to employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
This case presents yet another example of this Respondent’s
efforts to impede its employees free exercise of their rights
guaranteed under Section 7 of the Act. The Board noted with
approval the judge’s proposed remedy of a broad cease-and-
desist order in HTH I, supra at 8, justified “ . . . in light of the
Respondent’s proclivity to violate the Act and their serious
misconduct that demonstrates a general disregard for their em-
ployees’ fundamental rights, . . . See Hickmott Foods, 242
NLRB 1357 (1979).”
In view of Respondent’s ongoing violations of the Act, I
agree that a broad order enjoining Respondent from violating
the Act in any other manner is warranted.
In HTH I, the Board also ordered Respondent to have the no-
tice to employees notice publicly read by a responsible corpo-
rate executive in the presence of a Board agent or, at the Re-
spondent’s option, by a Board agent in the presence of a re-
sponsible corporate executive citing Homer D. Bronson Co.,
349 NLRB 512, 515–516 (2007), enfd. mem. 273 Fed.Appx. 32
(2d Cir. 2008).
In this case, I agree that Respondent’s ongoing violations,
their disregard for the 10(j) order issued by the United States
District Court, despite its provision that, “a responsible man-
agement official . . . will read to employees the court’s sepa-
rate-entered order . . . ,” justifies that that the notice to employ-
ees be read to employees assembled during worktime by Re-
spondent’s CEO, Corine Watanabe, and President John
Hayashi, in the presence of Minicola or in the alternative that
Minicola, be required to publicly read the notice to employees
in the presence of Watanabe and Hayashi with a Board agent to
be present for the reading of the notice to employees.
The Respondent will be ordered to offer reinstatement to
Rhandy Villanueva who it unlawfully terminated and make him
whole for any wages or other rights and benefits he may have
suffered as a result of the discrimination against him in accord-
ance with the formula set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as provided for in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), and Kentucky
River Medical Center, 356 NLRB 6 (2010).
[Recommended Order omitted from publication.]