Interstate Management Company, L.L.C. as agent for BRE Newton Hotels Property Owner, LLC d/b/a Resid

National Labor Relations Board - Board Decisions

May 20, 2020

369 N.L.R.B. 84 (N.L.R.B. 2020)

369 NLRB No. 84
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Interstate Management Company, LLC as agent for
Bre Newton Hotels Property Owner, LLC d/b/a
Residence Inn by Marriott Santa Fe All-Suites
Hotel and Residence Marriott Committee. Case
28–CA–206663
May 20, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On September 11, 2018, Administrative Law Judge
John T. Giannopoulos issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent 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, and conclusions1 only to the extent consistent with
this Decision and Order.
I. BACKGROUND
The Respondent is a third party hotel management com-
pany that operates approximately 400 hotels throughout
the United States. At issue here are allegations that the
Respondent unlawfully maintained two overly broad pol-
icies in its Business Code of Conduct and Ethics (Code of
Conduct or Code): section 16, entitled, “Government In-
vestigations,” and section 6, entitled, “Information Protec-
tion.” The Code of Conduct applies to the Respondent’s
approximately 30,000 employees nationwide.
The General Counsel does not allege that the Govern-
ment Investigations policy, in its entirety, is unlawful. Ra-
ther, he only challenges the language emphasized below
(emphasis added):
We promote cooperation with law enforcement agencies
and government agencies. However, rights of third par-
ties, associates, customers, suppliers, and others may be
affected. In most cases, the Company requires an offi-
cial written request or a subpoena describing the re-
quested information or documents and will ensure that
the information requested is limited to information legit-
imately required for the agency’s or party’s purpose.
1 In the absence of exceptions, we adopt the judge’s dismissal of al-
legations that the Respondent violated Sec. 8(a)(1) by interrogating em-
ployees, threatening employees with discharge and unspecified reprisals,
and threatening to call the police in response to protected activity.
Therefore, requests from the police, Internal Revenue
Service and other regulatory authorities must not be an-
swered without first obtaining clearance from our Legal
Department.
Similarly, the General Counsel has only challenged the
highlighted language in the Information Protection policy,
set forth below (emphasis added):
One of the Company’s most valuable assets is infor-
mation and the information systems we use to process
and store that data. Keeping confidential our Com-
pany’s non-public information is important to the suc-
cess of our Company. Confidential information in-
cludes, but is not limited to:
 personal information, which is defined broadly to
include any information that can be associated with
or traced to any individual, such as an individual’s
name, address, telephone number, e-mail address,
bank and credit card information, social security
number, etc. The personal information covered by
this Code could pertain to a customer, potential cus-
tomer, associate, former associate, owner or joint
venture partner;
 information system user IDs, passwords, voice
mail, and dial-up access numbers;
 proprietary information that provides our Company
with an advantage over our competitors (e.g., email,
financial systems, business intelligence site, devel-
opment plans, revenue management techniques,
etc.).
Every associate is responsible for utilizing the Com-
pany’s information solely for authorized business pur-
poses. In addition, every associate is responsible for pro-
tecting the Company’s confidential information and in-
formation systems from unauthorized internal and exter-
nal access.
The judge found that the challenged language in each
provision violated Section 8(a)(1) of the Act.2 For the rea-
sons stated below, we reverse.
II. ANALYSIS
A. Legal Standard
In Boeing Co., 365 NLRB No. 154 (2017), the Board
set out a new standard for determining whether a facially
2 Neither policy explicitly restricts Sec. 7 rights, nor is there any al-
legation that either policy has been applied to prohibit, or was promul-
gated in response to, Sec. 7 activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
neutral work rule or policy, reasonably interpreted, would
unlawfully interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights.3 The Board in that
decision overruled the “reasonably construe” prong delin-
eated in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004). Under the standard articulated in Boeing,
when evaluating a facially neutral policy, rule or hand-
book provision that, when reasonably interpreted, would
potentially interfere with the exercise of NLRA rights,
the Board will evaluate two things: (i) the nature and ex-
tent of the potential impact on NLRA rights, and (ii) le-
gitimate justifications associated with the rule.
365 NLRB No. 154, slip op. at 3 (emphasis in original). In
conducting this evaluation, the Board will strike the proper
balance between the employer’s asserted business justifica-
tions for a rule or policy against the extent to which the rule
or policy interferes with employees’ rights as viewed from
the objectively reasonable employee’s perspective. Id. The
Board will progressively delineate three categories of work
rules:
Category 1 will include rules that the Board designates
as lawful to maintain, either because ([a]) the rule, when
reasonably interpreted, does not prohibit or interfere
with the exercise of NLRA rights; or ([b]) the potential
adverse impact on protected rights is outweighed by jus-
tifications associated with the rule. . . .
Category 2 will include rules that warrant individualized
scrutiny in each case as to whether the rule would pro-
hibit or interfere with NLRA rights, and if so, whether
any adverse impact on NLRA-protected conduct is out-
weighed by legitimate justifications.
Category 3 will include rules that the Board will desig-
nate as unlawful to maintain because they would prohibit
or limit NLRA-protected conduct, and the adverse im-
pact on NLRA rights is not outweighed by justifications
associated with the rule.
Id., slip op. at 3–4 (emphasis in original).4 However, these
categories “will represent a classification of results from the
Board’s application of the new test. The categories are not
part of the test itself.” Id., slip op. at 4 (emphasis in original).
3 The outcome of this inquiry should be determined by reference to
the perspective of an objectively reasonable employee who is aware of
his legal rights but who also interprets work rules as they apply to the
everydayness of his job. The reasonable employee does not view every
employer policy through the prism of the Act. LA Specialty Produce
Co., 368 NLRB No. 93, slip op. at 2 (2019).
As further explained in LA Specialty Produce, the Gen-
eral Counsel has the initial burden under Boeing to prove
that a facially neutral rule or policy would, when read in
context, be interpreted by a reasonable employee as poten-
tially interfering with the exercise of Section 7 rights. 368
NLRB No. 93, slip op. at 2. If the General Counsel does
not meet this initial burden, then the Board does not need
to address the employer’s legitimate justifications for the
rule; the rule is lawful and fits within Boeing Category
1(a). Id.
If the General Counsel does meet the initial burden of
proving that a reasonable employee would interpret a rule
as potentially interfering with the exercise of Section 7
rights, the Board will balance that potential interference
against the employer’s legitimate justifications for the
rule. Id., slip op. at 3. When the balance favors general
employer interests, the rule at issue will be lawful and will
fit within Boeing Category 1(b). When the potential inter-
ference with Section 7 rights generally outweighs any pos-
sible employer justification, the rule at issue will be un-
lawful and fit within Boeing Category 3. Finally, in some
instances, “it will not be possible to draw any broad con-
clusions about the legality of a particular rule because the
context of the rule and the competing rights and interests
involved are specific to that rule and that employer.” Id.
These rules will fit within Boeing Category 2.
B. Government Investigations Policy
Applying Boeing, the judge found that the Government
Investigations policy would interfere with the rights of
employees to provide evidence to the Board or cooperate
in Board investigations. He further found that the Re-
spondent’s justification for the policy—preventing em-
ployees from providing official responses to requests from
police or government investigators on behalf of the Com-
pany—did not outweigh its infringement of Section 7
rights. Accordingly, he concluded that maintenance of the
policy violated Section 8(a)(1).
As a preliminary matter, we readily agree with the judge
that employees have a Section 7 right to provide evidence
to the Board and to cooperate in Board and other state and
federal labor and employment–related investigations
without interference. Congress has made it clear that it
wishes all persons with information about unfair labor
practices to be completely free from coercion in reporting
them to the Board,5 and the Supreme Court has long
4 In LA Specialty Produce, above, the Board redesignated the subdi-
visions of Boeing Category 1 as (a) and (b).
5 Nash v. Florida Industrial Commission, 389 U.S. 235, 238 (1967);
see also Victory Casino Cruises II, 363 NLRB No. 167, slip op. at 3
(2016) (“[E]mployees have a Section 7 right to discuss their conditions
of employment with third parties, such as union representatives [and]
Board agents.”).
INTERSTATE MANAGEMENT CO. LLC 3
recognized the “special danger” of witness intimidation
in NLRB proceedings.6 We disagree, however, with the
judge's finding that the Government Investigations policy
is unlawful, and we dismiss this allegation.
To begin, nothing in the policy compels an interpreta-
tion that employees must refer NLRB investigative inquir-
ies directed to them to the Respondent’s legal department.
Indeed, consistent with the testimony of Joy Johnson, the
Respondent’s vice president of compliance, we find that
the Government Investigations policy is intended to pro-
vide guidance to employees concerning instances in which
the Respondent is asked to cooperate with government in-
vestigations. On its face, the policy is expressly limited to
protecting the “rights of third parties, associates, custom-
ers, suppliers, and others” who may be affected by the re-
lease of their information. Importantly, the Respondent is
not one of the entities listed. And because the Respondent
itself is not similar to its “associates, customers, [or] sup-
pliers,” a reasonable employee would not read the policy
to signify that “and others” includes the Respondent. In-
deed, if the Respondent intended to shield itself or exert
control over investigations into its own workplace issues
or conduct, it would have referred to company information
or included language to that effect, rather than limiting the
stated purpose of its policy to safeguarding third parties.
Nevertheless, because the policy does not include lan-
guage specifically limiting it to situations in which an em-
ployee is asked to provide information on the Respond-
ent’s behalf, we cannot categorically find that employees
would not reasonably view it as restraining Section 7 ac-
tivity to some degree. Accordingly, we turn to the Re-
spondent’s business justification for its policy.
As stated above, the Respondent operates approxi-
mately 400 hotels nationwide and employs approximately
30,000 employees. In the course of its operations, it ob-
tains sensitive personally identifiable information and
business information about its employees, customers, ven-
dors, and others. Stating the obvious, Johnson testified
that the Respondent’s employees are not experts on State
and Federal laws and regulations with which the Respond-
ent is obligated to comply. Johnson also testified that it is
common for local police, FBI, or other law enforcement
personnel to visit hotel properties, flash a badge, and re-
quest information about employees or hotel guests from
the Respondent’s front desk or management personnel.
Such unexpected encounters can result in the release of
information without regard for the rights of those affected
or the obligations of the Respondent to ensure that infor-
mation is released in accordance with appropriate legal
processes. In addition, Johnson testified about an instance
6 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239–242 (1978).
where the Respondent was facing potentially conflicting
State and Federal laws regarding the information an em-
ployer may provide the United States Immigration and
Customs Enforcement Agency.
Based on Johnson’s undisputed testimony described
above, we find that the Respondent has established a com-
pelling interest in safeguarding the information of its
guests, associates, and other third parties and in protecting
itself from liability that might arise if the information it
collects were to be disclosed without appropriate vetting
from the Respondent’s legal department. In addition, the
Respondent has an obligation to ensure that any infor-
mation released to a government agency is subject to in-
ternal review for accuracy. In short, it is inconceivable
that a multistate hotel operation subject to myriad state and
federal regulations would lack specific procedural guide-
lines for employees confronted with inquiries and requests
for documents and information entrusted to it by hotel
guests and others.
In light of the above, we find that the Respondent’s le-
gitimate business interests outweigh the slight risk that
employees would misread the rule as restricting their abil-
ity to provide information to the Board or other law en-
forcement agencies on behalf of themselves or their
coworkers. Accordingly, we find that the Respondent’s
maintenance of this policy does not violate the Act, and
we dismiss the allegation.
We find, however, that as a multistate hotel manage-
ment company, the Respondent has specific interests that
carry significant weight in the balancing analysis that
leads to our decision here under Boeing. Therefore, be-
cause we find that certain articulated “interests involved
are specific to [this policy] and . . . employer,” we do not
reach a broad conclusion about the legality of similar pol-
icies outside of the current context. LA Specialty Produce,
above, slip op. at 3. Rather, such rules will fall into Boe-
ing Category 2, requiring consideration and balancing of
respective employee rights and employer interests on a
case-by-case basis to determine the degree to which the
rules would interfere with the Section 7 rights of employ-
ees and whether any adverse impact on NLRA-protected
conduct is outweighed by an employer’s specific legiti-
mate justifications.
C. Information Protection Policy
The judge also determined that the Information Protec-
tion policy, when reasonably interpreted in context with
other rules in the Code of Conduct,7 would interfere with
employees’ exercise of their Section 7 rights to use the
names and contact information of their coworkers for or-
ganizing purposes. Applying Boeing’s balancing test, he
7 The judge did not explain what “other rules” he meant here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
found that the policy’s adverse impact on employee rights
was significant and outweighed the Respondent’s legiti-
mate interest in protecting the personally identifiable in-
formation it collects in the course of business, and there-
fore he concluded that the Information Protection policy
was unlawful.
It is well established that employees have a Section 7
right to use generally known information about coworkers
such as names, telephone numbers, and other contact in-
formation they learn during the normal course of their
work for organizing and other protected concerted activi-
ties.8 The Respondent’s Information Protection policy,
however, is limited to the disclosure of information given
to the Respondent in confidence and stored by the Re-
spondent in its records and databases.9 As discussed fur-
ther below, we reverse the judge and dismiss the allega-
tion.
The Respondent collects personally identifiable infor-
mation from its guests, employees, vendors, and others
and stores it in its databases. As with the Government In-
vestigations policy, the record establishes that the Infor-
mation Protection policy provides guidelines, in part as re-
quired by various State and Federal privacy laws, to pro-
tect the sizable amount of sensitive information that the
Company obtains. In particular, the Respondent has es-
tablished that the purpose of the policy is to prohibit a
company representative who has access to company rec-
ords or databases from obtaining and distributing confi-
dential information without authorization.
The Respondent’s databases house a significant amount
of confidential employee information, including I-9
forms, tax and bank account information, personal health
care information, and information about dependents. We
recognize that the confidential information covered by this
policy also includes the “name, address, telephone num-
ber, [and] e-mail address” of employees. The policy’s pre-
amble, however, emphasizes that the restriction on disclo-
sure only pertains to information the Respondent keeps,
referencing “our Company’s” information and infor-
mation systems, and referring to the information the Re-
spondent collects as among “the Company’s most
8 See Ridgely Mfg. Co., 207 NLRB 193, 196–197 (1973) (“[E]mploy-
ees are entitled to use for self-organizational purposes information and
knowledge which comes to their attention in the normal course of work
activity and association but are not entitled to their [e]mployer’s private
or confidential records.”), enfd. 510 F.2d 185 (D.C. Cir. 1975); Gray
Flooring, 212 NLRB 668, 669 (1974) (finding unlawful the discharge of
an employee who copied other employees’ names and telephone num-
bers from the employer’s index cards that were not maintained as private
records).
9 See Macy’s, Inc., 365 NLRB No. 116, slip op. at 4 (2014) (finding
lawful confidentiality rule that “restrict[s] the use or disclosure of confi-
dential . . . information that the [r]espondent ‘has’ or ‘maintains’”);
valuable assets.” Similarly, the closing paragraph states
that “every associate is responsible for protecting the
Company’s confidential information and information sys-
tems from unauthorized internal and external access.”
(Emphasis added.) Based on this plain language, includ-
ing the reference to “internal and external access,” objec-
tively reasonable employees would understand that the in-
formation protected by this policy is information collected
by the Respondent and stored in its databases and that the
policy does not restrict their ability to share generally
known contact information with each other or with a third
party, such as a union, that they learn through their own
personal and working relationships with their coworkers.
Moreover, the employee information that is listed in the
policy includes bank and credit card information and So-
cial Security numbers—information that is typically
stored in a company’s records. This would clearly signal
to employees that the policy refers to information stored
by the Respondent and that the privacy concerns at issue
relate to matters such as personal security, fraud, and iden-
tity theft—not to organizing or other Section 7 activity.
The other categories of information deemed confidential,
such as “information system user IDs [and] passwords”
and “proprietary information,” further confirm that the
policy’s scope is limited to information stored in the Re-
spondent’s records.10
But even assuming there is some risk that employees
may misunderstand the policy to apply to information
other than that stored in the Respondent’s records, we find
that any such potential interference with the exercise of
Section 7 rights is slight, and that the risk is outweighed
by the Respondent’s legitimate business justifications for
the policy. As noted above, with 30,000 employees across
multiple states and a patchwork of State privacy laws, the
Respondent has a substantial interest in protecting the per-
sonal information that it maintains about its employees
and in protecting itself from the considerable liability re-
sulting from a data breach, and that interest would be rea-
sonably obvious to its employees.
Based on the foregoing, we find that the Information
Protection policy at issue is lawful. Further, we designate
International Business Machines Corp., 265 NLRB 638, 638 (1982)
(recognizing employees have no Sec. 7 right to disseminate information
obtained from an employer’s confidential records).
10 The Board has repeatedly held that, in analyzing the lawfulness of
a work rule, it must refrain from reading particular language in isolation.
Lutheran Heritage, 343 NLRB at 646 (citing Lafayette Park Hotel, 326
NLRB 824, 825, 827 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999)). See
also LA Specialty Produce, above, slip op. at 4 (2019) (confidentiality
rule prohibiting disclosure of “client/vendor lists” lawful where other
categories of information prohibited from disclosure confirmed that the
rule only applied to employer’s nonpublic, proprietary records).
INTERSTATE MANAGEMENT CO. LLC 5
confidentiality rules that prohibit employees from disclos-
ing the names and contact information of employees as
Category 2 rules under Boeing, above, slip op. at 4. Such
confidentiality rules require individualized scrutiny to de-
termine whether an objectively reasonable employee in
the particular workplace would understand that a rule is
necessarily limited to preventing employees from disclos-
ing private, personal information obtained from an em-
ployer’s databases or would more broadly restrain em-
ployees from sharing the names and contact information
of their coworkers for organizing or other Section 7–pro-
tected purposes.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. May 20, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Judith Dávila, Esq.,for the General Counsel.
Matthew T. Wakefield, Esq., Nicole K. Haynes, Esq. (Ballard,
Rosenberg, Golper & Savitt, LLP), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This
case was tried before me in Albuquerque, New Mexico, on April
17–18, 2018, based upon charges filed by the Residence Marriott
Committee, and a complaint and notice of hearing dated January
9, 2018 (Complaint). The Complaint alleges that Interstate Man-
agement Company, LLC, as an agent for the property owner
BRE Newton Hotels, LLC d/b/a Residence Inn By Marriott
1 Testimony contrary to my findings has been discredited. Witness
demeanor was the primary consideration used in making credibility res-
olutions.
2 Transcript citations are denoted by “Tr.” with the appropriate page
number. Citations to the General Counsel and Respondent exhibits are
denoted by “GC.” and “R.” respectively. Transcript and exhibit citations
are intended as an aid, as factual findings are based upon the entire record
as a whole. Respondent’s unopposed motion to correct the transcript is
granted and the motion is made part of the record.
Santa Fe All-Suites Hotel (Respondent or Interstate) violated
Section 8(a)(1) of the National Labor Relations Act (Act) and by
threatening employees, interrogating employees, and maintain-
ing certain overly-broad and discriminatory work rules. Re-
spondent denies the allegations.
Based upon the entire record, including my observation of wit-
ness demeanor, and after considering the briefs filed by the Gen-
eral Counsel, and Respondent, I make the following findings of
fact and conclusions of law.1
I. JURISDICTION AND LABOR ORGANIZATION
Interstate admits that it is a limited liability company with an
office and place of business in Santa Fe, New Mexico, where it
operates a hotel providing both lodging and food services. It fur-
ther admits that, in conducting its business operations, the com-
pany annually performs services valued in excess of $50,000 in
states other than the State of New Mexico, and that it derives
annual gross revenues in excess of $500,000. Respondent ad-
mits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. FACTS
A. Background
Respondent operates approximately 400 hotels throughout the
United States under various brand names including Marriott Res-
idence Inn, Hilton Grand, Holiday Inn, Sheraton, and Crowne
Plaza. As a third-party management company, Interstate oper-
ates the hotels, using its own employees, through management
agreements with various individual property owners. Approxi-
mately 30,000 employees work for Respondent in the United
States.2 (Tr. 162–166.)
In Santa Fe, New Mexico, Respondent operates a Marriott
Residence Inn branded property (Santa Fe Marriott). The gen-
eral manager at this hotel is Kate Lettenberger (Lettenberger).
Ana Rojo (Rojo) supervises the hotel housekeeping employees.
(Tr. 21, 31, 88, 89, 118, 165.)
B. Employee Letter
In early July 2017 three of Respondent’s Santa Fe Marriott
housekeeping employees, Lluvia M. Ramirez-Orozo (Ramirez-
Orozo), Marixenia Brandt (Brandt), and Maria Orona (Orona),
visited Somos Un Pueblo Unido (Somos), a group described as
a “social services” or “immigrant rights” organization.3 Ulti-
mately the three signed an agreement with Somos forming a
workers’ committee. (Tr. 33–34, 119; GC. 6.)
Upset with what they perceived to be various workplace in-
justices, on August 22, 2017, the three workers delivered a letter
to Interstate stating that they had formed a workers’ committee.
In the letter the employees complain about pressure from
3 See Merchants Bld. Maint. LLC, 358 NLRB 578, 582 (2012) (de-
scribing Somos as a “social service organization”); Palacios-Valencia v.
San Juan Cty. Bd. of Commissioners, No. CV 14-01050 WJ/KBM, 2016
WL 10592146, at *1 (D.N.M. Feb. 10, 2016) (describing Somos as an
“immigrant rights organization”). Brandt testified that Somos it as a
“corporation where we’re all together so that . . . we can all get help.”
(Tr. 33.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Lettenberger and work requirements which, they allege, have
caused injuries and health problems. The employees further
complain that they feel pressured to work while injured, they are
victims of age discrimination, and hotel management ignores
their problems. The letter, which is signed individually by
Ramirez-Orozo, Brandt, and Orona, under the title “Committee
Hotel Marriott,” ends by asking for a meeting to solve the issues
addressed in the document. Ramirez-Orozo sent the letter to Re-
spondent via certified mail, and also handed it to Rojo, who said
she would give the letter to Lettenberger. (Tr. 91–92; GC 4.)
C. Yamini Shankar Visits the Santa Fe Marriott
Yamini Shankar (Shankar), Respondent’s director of human
resources, received a copy of the letter from Lettenberger. Shan-
kar has worked for Interstate in a human recourses capacity for
over 10 years. (Tr. 138.)
Shankar testified that she was concerned about the severity of
the issues raised in the letter and decided to visit the Santa Fe
Marriott personally to meet with the workers. Shankar informed
Lettenberger about the visit, asking her to contact the housekeep-
ers and determine a date for the meeting; it was decided the meet-
ing would occur on August 30, 2017. Shankar flew to Santa Fe
on August 30, and left the next day. She had never previously
been to the Santa Fe Marriott. (Tr. 22, 139–141.)
Certain aspects of the August 30 meeting are undisputed. The
meeting started at around 3 p.m., with Ramirez-Orozo, Brandt,
Orona, and Shankar meeting in a conference room on the second
floor of the hotel. Shankar first met with the employees as a
group, and then met with them individually. While they were
waiting to meet with Shankar individually, the workers sat in an-
other conference room across the hall. (Tr. 22, 37, 82, 92, 104–
105, 141.)
Because Shankar does not speak or understand Spanish, and
the three employees have a limited knowledge of English, a
translator named Isabelle Jennings (Jennings) was used to during
the meeting. Jennings, who lives in Santa Fe, owns her own
translation service and has been an interpreter for over 30 years.
Lettenberger hired Jennings, who testified that she works for Re-
spondent as a translator at the Santa Fe Marriott “all the time.”
Jennings translated during both the group and the individual
meetings between Shankar and the employees. (Tr. 143–144,
182, 192.)
D. Testimony Regarding the August 30 Meeting
1. Marixenia Brandt
Because of a surgery, Brandt had been on an extended leave
of absence since April 2017; she came to the hotel on August 30
specifically to meet with Shankar. Brandt testified that, when
she arrived at the second floor conference room for the 3 p.m.
meeting, Shankar and Jennings were already there waiting. In
the room everyone sat at a long conference table. During the
meeting Shankar spoke in English, and the employees waited for
Jennings to translate what was said into Spanish. (Tr. 37–40, 42,
49–51, 121–122; GC 7–8.)
The meeting started with Shankar saying that she was going
to help them, and asking the employees why they sent the letter.
The workers responded that they wanted to be heard and needed
Respondent to pay attention when they had a problem. (Tr. 43,
55.)
According to Brandt, the employees then took turns express-
ing their concerns and complaints. Among the things they told
Shankar were that: managers were not honoring Brandt’s medi-
cal restrictions; the hotel needed to hire more people; Ramirez-
Orozo should not be required to work the night shift alone; Let-
tenberger was pressuring them to complete their work quickly;
employees were incurring workers’ compensation injuries be-
cause of the workload; they would not get a lunch break when it
was busy; the laundry room was too hot in the summer and too
cold in the winter; the housekeepers should not have to maintain
the pool area, deliver guest checkout paperwork, or make coffee
for breakfast; two employees should be scheduled to work in the
laundry overnight because of the workload; employee lockers,
which had been removed, should be reinstalled; they did not have
sufficient supplies; and employees should be treated profession-
ally and with respect (Tr. 55–78.)
Brandt testified that, at some point, Shankar said she wanted
to meet with them separately because in a group setting everyone
could hear their individual, personal, and intimate issues. The
employees said that they were a committee, and wanted to ad-
dress their issues as a committee. Shankar then asked what the
committee was, if it was legal, whether they had an attorney, and
if so, who. The employees did not name their attorney, because
they did not actually have one at the time. After this exchange
the group meeting ended, the employees were separated, and the
individual meetings started. (Tr. 44–45, 73–74, 79, 85.)
According to Brandt, Shankar was calm during the group
meeting. However, she testified that Jennings was “aggressive.”
(Tr. 52.) Ramirez-Orozo, who Brandt described as having a loud
voice, was “revved up” asking questions. Brandt testified that
Jennings got mad, became aggressive, and acted as if she wanted
to punch someone. At some point during the group meeting Jen-
nings said something about the police. However, Brandt was not
paying attention and did not hear the details of the comment. She
was also unsure of what Shankar was telling the interpreter at the
time, explaining that “all we were receiving was what the inter-
preter was saying.” (Tr. 42–43, 52–54, 58, 72, 84, 85.)
During her individual meeting with Shankar, Brandt com-
plained that she hurt her shoulder due to the excessive workload,
was told that Respondent would not help her as she did not have
any rights, and that she wanted Interstate to pay for her surgery.
Brandt also told Shankar that, when she was working alone, there
was too much work to perform, that the maintenance employees
were careless, and she further complained about the temperature
in the laundry room. After Brandt finished her individual meet-
ing, she did not leave the hotel, but waited in the conference
room across the hall because she carpooled to the meeting with
one of the other workers. Brandt estimated that her individual
meeting with Shankar lasted for about 30 minutes. (Tr. 47, 75,
81–82, 85.)
2. Lluvia M. Ramirez-Orozo
Ramirez-Orozo started working for Respondent in October
INTERSTATE MANAGEMENT CO. LLC 7
2016 as a housekeeper.4 She testified that, at the beginning of
the group meeting, she wanted to record the encounter using her
cell phone. However, Jennings said that, according to Shankar,
they were not allowed to record the meeting; Ramirez-Orozo
turned off her phone. The meeting then started with Shankar
greeting employees by saying good afternoon, and that it was a
good thing the police “aren’t here, right?” (Tr. 94, 107.)
Ramirez-Orozo, who testified at the hearing through a translator,
said that she knows the word ‘police’ in English, she heard Shan-
kar say the word in English, watched Shankar as she said it, and
Jennings interpreted the word into Spanish.5 Shankar then asked
the workers about their concerns, and each person explained
their particular issues; they also discussed items they wanted
changed at the hotel. Then, Ramirez-Orozo told Shankar that the
workers had formed a legal committee, and had an attorney help
them. Shankar inquired about the committee, asking why the
employees had formed a committee, for an explanation about the
details of the committee, whether it was legal, who was their syn-
dicate,6 who represented the committee, and for the name of their
attorney. Ramirez-Orozo testified that she replied saying the
committee was a group of workers who joined together to defend
themselves, and that it was legal. Ramirez-Orozo declined to
give Shankar the name of their attorney. Shankar then said that
they would meet individually, because she did not want everyone
to hear about their coworkers’ intimate issues. (Tr. 95–96, 103,
107–110, 116.)
Ramirez-Orozo estimated that the group meeting lasted be-
tween a half-hour to an hour. She described Shankar’s mood as
serious and ironic at the same time, testifying that Shankar was
trying to intimidate them. Ramirez-Orozo denied getting upset
or using any profanity during the group meeting. She also denied
that Jennings ever said anything about the workers needing to act
professionally. According to Ramirez-Orozo, at the end of the
group meeting Jennings said that she wanted to punch her. (Tr.
96, 103, 106–108.)
Ramirez-Orozo was the second worker to meet individually
with Shankar, and testified that Shankar asked why employees
“had done this.” (Tr. 96.) Ramirez-Orozo replied that Letten-
berger did not respect her accident-related work restrictions.
Shankar asked her to provide proof of both the accident and the
work restrictions, and Ramirez-Orozo said she had paperwork as
proof. Shankar, appearing angry, then called her a “liar.” (Tr.
97, 110.) Ramirez-Orozo asked for permission to retrieve the
paperwork from her car. When she returned with the documents,
Ramirez-Orozo testified that Shankar, again appearing angry,
said “do you know I can fire you this minute.” (Tr. 110.)
Ramirez-Orozo asked if the comment was a threat, and Shankar
said no. Shankar then asked for the documents but Ramirez-
Orozo told her to get them from her doctor. While she did not
give the documents to Shankar, she did show the paperwork to
her. Finally, Ramirez-Orozo asked for her shift to be changed,
4 At the time of the hearing, Ramirez-Orozo no longer worked at the
hotel as she had been fired. (Tr. 97.)
5 The translation of Ramirez-Orozo’s trial testimony uses the word
“cops” instead of “police.” (Tr. 94, 107.)
6 The Spanish word “sindicato” or syndicate can also be defined as a
trade or labor union. See Concise Spanish-English/English-Spanish
claiming that medical restrictions prohibited her from lifting
more than 50 pounds, and that the heavy work is conducted in
the afternoon; however, Shankar said that she could not .change
her shift. (Tr. 96–97, 104, 110–111.)
3. Maria Orona
Orona, like Brandt, was also on a leave of absence in August
2017; she was recovering from a surgery due to a workplace in-
jury. According to Orona, at the meeting, just after the introduc-
tions, Shankar said “the good thing is that the police is not here
and I hope that we don’t have to call them, correct.”7 (Tr. 128)
While Orona attributed the statement to Shankar, Orona testified
that she did not understand what Shankar was saying in English,
and that her trial testimony was based solely upon what Jennings
told them as the translator. (Tr. 118, 123, 127–129.)
The employees were then asked about their concerns, and for
ideas on how they would like to see the hotel change for the bet-
ter. According to Orona, as employees replied with their issues
and ideas, Shankar took notes on a small notepad. Orona testi-
fied that, after employees discussed their concerns as a group,
they were told they had to meet with Shankar separately; the em-
ployees replied that they could not speak separately because they
were a committee. Specifically, Ramirez-Orozo said the work-
ers had formed a committee and had an attorney that helped
them. According to Orona, Shankar became upset, asked about
the committee, the lawyer, and whether it was legal. Orona tes-
tified that she tried to speak up, but was told they were going to
speak separately because their work issues were private. (Tr.
123–124, 133–134.)
Orona was the last person to meet with Shankar individually.
During her individual meeting, Shankar asked Orona why they
had written the letter. Orona replied that it was because the com-
pany was not listening, that they needed things at work but Re-
spondent did not pay any attention to them. When asked how
she wanted things to change, Orona expressed concerns about
Lettenberger as the general manager. She complained that Let-
tenberger was unable to communicate with employees, and gave
Shankar various examples. (Tr. 124, 135–136.)
4. Isabelle Jennings
According to Jennings, the August 30 meeting started with
some difficulty, as there was not much structure, and one of the
employees was a little unruly, talking loudly, and cursing in
Spanish. Jennings testified that she had to lay some ground rules,
because an interpreter is also a moderator and cannot let a situa-
tion escalate. Regarding her ground rules, Jennings testified she
told employees not to interrupt, and for everyone to wait their
turn to speak. One of the employees wanted to record the meet-
ing. Jennings asked Shankar if recordings were allowed, and
Shankar said no. Jennings relayed this to the employees, and
according to Jennings the person who wanted to record the meet-
ing started swearing. Jennings told her to stop swearing or
Dictionary 479 (Larousse 1993) (defining “sindicato” as “trade union,
labor union”).
7 Orona’s testimony about this incident was consistent with the affi-
davit she gave during the underlying investigation. (Tr. 123, 129, 131–
132.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
“you’re going out and that’s it.” (Tr. 186.) The employee com-
plied, and they continued with the meeting. (Tr. 183–186.)
Jennings testified that she interpreted in the first person during
the meeting and that Shankar was aware of everything that was
occurring. Jennings would ask Shankar if she was interpreting
certain things correctly, or whether what was being said made
sense. Jennings testified that Shankar never raised her voice or
became angry. Instead, she was very patient, and took notes.
She denied that Shankar said anything about calling the police or
threatened to fire anyone. (Tr. 186–188, 193.)
That being said, Jennings could remember little else from the
August 30 meeting. She could not remember the names of the
employees who attended, or even Shankar’s name. At trial, she
had to visually identify Shankar, who was sitting in the court-
room, as the official who attended the August 30 meeting. Jen-
nings could not remember whether the employees first met to-
gether as a group, did not remember the topics or issues the em-
ployees discussed, and did not remember if anyone from the ho-
tel briefed her before the meeting started. On cross-examination
Jennings admitted that she really did not remember the interpre-
tation at all and generally does not remember any of her inter-
pretations.8 Jennings denied ever making a fist, and stated that
the meeting was not physically contentious. She described the
translation as a Ping-Pong game, going back and forth between
herself, Shankar, and the employees. (Tr. 183–188, 190–194.)
5. Yamini Shankar
Shankar testified that the primary purpose of the meeting was
to gather information about the concerns raised in the employee
letter. The August 30 meeting was Shankar’s first visit to the
hotel, and when she arrived at the facility at 3 p.m. Jennings was
already in the conference room while the employees were across
the hall waiting. She introduced herself to the employees and
asked whether they wanted to meet individually or as a group;
Ramirez-Orozo replied that they wanted to meet collectively.9
According to Shankar, she then invited them into the conference
room across the hall and introduced them to Jennings. (Tr. 141–
142.)
After the introductions, Shankar testified that she set forth
some ground rules about being professional, and reiterated the
company’s open door, no harassment, and no retaliation policies.
She also reminding the workers that “whatever we discussed, it’s
better that we retain it here; again it will be shared only on a
need-to-know basis” by Respondent. (Tr. 142–143.) Shankar
denied saying anything about the police during the meeting, and
denied hearing the interpreter discuss the police. Shankar, who
does not speak or understand Spanish, testified that it appeared
to her as if Ramirez-Orozo was initially trying to take over the
meeting, and that Jennings was trying to calm her down on more
than one occasion. (Tr. 143–144.)
After reviewing the company’s various policies, Shankar ex-
plained that she was present to discuss the concerns the employ-
ees raised in their letter. According to Shankar, as she was going
through the various issues, Ramirez-Orozo interrupted saying
8 On direct examination Jennings had testified that she remembered
“some” of the interpretation. (Tr. 182.)
9 Shankar testified that this part of the conversation occurred in Eng-
lish, without the interpreter. (Tr. 142.)
repeatedly that the employees were a committee. Shankar asked
her to explain, and Ramirez-Orozo replied that they had formed
a committee and had an attorney representing them. Shankar
asked for the name of the attorney, or a contact, but Ramirez-
Orozo said she would not disclose that information. Shankar tes-
tified that she wanted this information to provide to Respond-
ent’s counsel in the event the company needed to follow-up. (Tr.
144–145.)
Shankar then asked the employees to take turns discussing
their complaints. Ramirez-Orozo went first, and then the other
employees followed. However, according to Shankar, Ramirez-
Orozo continuously interrupted the other employees while they
were speaking. After everyone finished discussing their con-
cerns, Shankar testified that she gave them the opportunity to
meet with her individually if they wanted, to discuss personal,
medical, or disciplinary issues. According to Shankar, the work-
ers “were very amenable” to meeting individually, and said they
wanted to do so. (Tr. 144–148.)
E. Respondent’s Business Code of Conduct
Respondent’s maintains a Business Code of Conduct (Code of
Conduct) that applies to all Interstate employees throughout the
United States. Employees get a physical copy of the Code of
Conduct, in both English and Spanish, when they are hired. An
electronic version is also available on the company’s intranet
site. Respondent’s vice president of compliance, Joy Johnson
(Johnson), helped draft the Code of Conduct, and testified that
the purpose of the document is to provide employees with guid-
ance on how to deal with certain situations in an ethical manner.
(Tr. 163, 177–179.)
The Code of Conduct is divided into 17 sections based on sub-
ject matter; it ends with instructions telling employees to contact
an attorney in the legal department if they have any questions or
concerns. (GC 3, p.6; Tr. 163–164.) Paragraph 5(b) of the Com-
plaint alleges that portions of the Code of Conduct in Section 6
(Information Protection) and Section 16 (Government Investiga-
tions) violate Section 8(a)(1) of the Act. (GC 1(g); GC. 3.)
1. Provision on iformation security
Section 6 of the Code of Conduct contains rules regarding the
confidentiality of personal information, and reads as follows:
Section 6:10 Information Protection
One of the Company’s most valuable assets is information and
the information systems we use to process and store that data.
Keeping confidential our Company’s non-public information
is important to the success of our Company. Confidential in-
formation includes, but is not limited to:
• personal information, which is defined broadly to include
any information that can be associated with or traced to
any individual, such as an individual’s name, address, tel-
ephone number, e-mail address, bank and credit card in-
formation, social security number, etc. The personal in-
formation covered by this Code could pertain to a
10 The Complaint mistakenly identifies this as Section 5 of Respond-
ent’s Business Code of Conduct.
INTERSTATE MANAGEMENT CO. LLC 9
customer, potential customer, associate, former associate,
owner or joint venture partner;
• information system user IDs, passwords, voice mail, and
dial-up access numbers;
• proprietary information that provides our Company with
an advantage over our competitors (e.g., email, financial
systems, business intelligence site, development plans,
revenue management techniques, etc.).
 Every associate is responsible for utilizing the Company’s
information solely for authorized business purposes. In
addition, every associate is responsible for protecting the
Company’s confidential information and information sys-
tems from unauthorized internal and external access.
The General Counsel alleges that the portion of this policy which
deems as confidential “personal information, which is defined
broadly to include any information that can be associated with or
traced to any individual, such as an individual’s name, address,
telephone number, [and] email address” pertaining to an “asso-
ciate, [or] former associate” violates Section 8(a)(1) of the Act.
Johnson testified that this portion of the Code of Conduct is nec-
essary due to obligations under various state and/or federal laws
involving data privacy. According to Johnson, because Re-
spondent collects information on employees as part of its busi-
ness operations, there is an expectation that the information is
secure, as per various data privacy laws. Thus, Johnson testified
data privacy laws and personal security are the primary reasons
that Section 6 is included in the Code of Conduct. (Tr. 167–171.)
Regarding the specific information Respondent considers
confidential, according to Johnson this includes protected infor-
mation in the company’s database regarding employees includ-
ing their name, address, email, social security number, I-9 form,
tax and bank account information, along with health care infor-
mation and the identity of dependents. The company refers to
this information as personally identifiable information, or “PII.”
Respondent considers any one piece of information that, when
tied to a person’s name, can specifically identify the individual,
as being PII. Thus, according to Johnson, an individual workers
name, by itself, is not confidential. However, if the name is tied
to some other piece of information which could specifically iden-
tify the individual—like an address, phone number, or email,
then it would be considered confidential PII. (Tr. 166–169.)
According to Johnson, the policy does not prohibit an em-
ployee from giving out his or her own name, address, telephone
number, etc. Instead, the purpose of the policy is to prohibit a
company representative who has access to confidential infor-
mation taken from company records or databases from distrib-
uting this information. Johnson testified that she is not aware of
anyone being disciplined for violating this policy. (Tr. 171–
172.)
2. Provision on government investigations
The Code of Conduct contains a provision prohibiting em-
ployees from answering requests from the police, Internal Reve-
nue Service, or other regulatory authorities without first obtain-
ing clearance from Respondent’s legal department. The General
Counsel alleges that this provision violates Section 8(a)(1) of the
Act. The full policy reads as follows:
Section 16: Government Investigations
We promote cooperation with law enforcement agencies and
government agencies. However, rights of third parties, associ-
ates, customers, suppliers, and others may be affected. In most
cases, the Company requires an official written request or a
subpoena describing the requested information or documents
and will ensure that the information requested is limited to in-
formation legitimately required for the agency’s or party’s pur-
pose. Therefore, requests from the police, Internal Revenue
Service and other regulatory authorities must not be answered
without first obtaining clearance from our Legal Department.
According to Johnson, this policy provides employees with
guidance on cooperating with government investigations and en-
sures that the information provided is appropriate. Johnson tes-
tified that it does not apply to employees who make a claim
against the company, or who cooperate on their own in providing
information to the government. (Tr. 173.)
Johnson gave examples of various situations in an attempt to
show why Respondent maintains this policy. According to John-
son, it is common for local police, the FBI, or law enforcement,
to visit a property and request information on a guest or em-
ployee by simply showing a badge, saying they are conducting
an investigation, and need access to information. Johnson also
testified that, in California there are conflicts between state and
federal law regarding the type of information an employer can
provide the Department of Homeland Security Immigration and
Customs Enforcement Agency. Finally, Johnson also gave as an
example a Department of Labor audit where a manager provided
the agency with responsive information, instead of contacting su-
periors, which resulted in a fine. Johnson claimed that, had the
manager gone through proper channels, Respondent would have
been able to provide other timekeeping information to the gov-
ernment and avoided a fine. (Tr. 174–176.)
According to Johnson, these situations are “very intimidating”
to employees; thus Respondent’s policy alleviates pressure from
workers by giving them a standard response: we want to coop-
erate but need to contact the legal department and will then co-
operate as guided. Respondent asserts that Section 16 allows the
company to have a consistent and appropriate response to the
various regulatory agencies contacting the hotel and requesting
information. Johnson testified that she is not aware of anyone
being disciplined for violating Section 16 of the Code of Con-
duct. (Tr. 174–177.)
F. Respondent’s Employee Handbook and the General Coun-
sel’s Motion to Amend
The Complaint alleged that a provision in Respondent’s em-
ployee handbook prohibiting associates from “recording conver-
sations or actions of guests or associates without authorization,”
along with a separate clause deeming as confidential “policies,
procedures, [and] manuals,” violated Section 8(a)(1) of the Act.
However, at the opening of the hearing, the General Counsel
withdrew these allegations. (Tr. 9.)
After the hearing ended, contemporaneously with the filing of
its post hearing brief, the General Counsel filed a Motion to
Amend the Complaint (Motion to Amend). In the Motion to
Amend, the General Counsel seeks to add two additional 8(a)(1)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
allegations, claiming that the evidence presented at trial supports
a finding that, on about August 30, 2017, at Respondent’s facil-
ity, Shankar: (1) prohibited employees from recording a meeting
in which they discussed concerted complaints about their terms
and conditions of employment with Respondent; and (2) prohib-
ited employees from discussing with others a meeting in which
they discussed concerted complaints about their working condi-
tions.
Pursuant to an Order to Show Cause, Respondent filed a sup-
plemental brief arguing that the General Counsel’s Motion to
Amend should be denied as untimely, and because the allega-
tions were not fully litigated. Respondent further argued that, if
the Motion to Amend was granted, the additional allegations
should be dismissed on the merits.
1. Prohibiting the recording of the August 30 meeting
Respondent had served a trial subpoena upon Ramirez-Orozo,
and during cross-examination asked whether she possessed any
documents responsive to the subpoena. One of the subpoena re-
quests sought any recordings of the August 30 meeting. After
some confusion, I specifically asked Ramirez-Orozo whether she
made a recording of the meeting. In reply to my question,
Ramirez-Orozo testified that she was going to record the meet-
ing, but Shankar said she could not do so, so she turned her phone
off and did not record the meeting. This testimony occurred dur-
ing the General Counsel’s case-in-chief. (Tr. 102–103.)
Jennings testified about this same incident on the second day
of hearing, after the government had rested. Specifically, Jen-
nings testified that, as she was setting her ground rules, one of
the employees wanted to record the meeting. Jennings asked
Shankar if recording was allowed, and Shankar said no. Jen-
nings then relayed this information to the employees. (Tr. 185–
186.)
After Jennings testified, I asked Shankar whether this incident
occurred. Shankar testified that Ramirez-Orozo did, in fact, ask
to record the meeting, and that Shankar said that she could not
do so. As a follow-up to this question, Respondent’s counsel
asked Shankar why she did not want the meeting recorded.
Shankar testified that, Respondent typically does not allow meet-
ings to be recorded, and the company’s policy does not allow
recordings without authorization. But, according to Shankar, the
primary reason was that she was there to gather information from
the associates, and her speculation that “once you put a recorder
into play, it probably does not make associates feel very com-
fortable to open up.” (Tr. 195.) However, Shankar never asked
any of the workers whether they did, or did not, want the meeting
to be recorded. (Tr. 195–196.)
2. Prohibiting employees from discussing the meeting
As for the allegation that Shankar prohibited employees from
talking about the August 30 meeting, the testimony relied upon
by the General Counsel comes directly from Respondent’s ex-
amination of Shankar, which occurred after the government had
rested its case-in-chief. Specifically, Respondent’s counsel
asked Shankar what occurred when she first went into the con-
ference room with the interpreter and the three employees. Shan-
kar testified that, after laying some ground rules, she went over
some of the company’s policies, and “with regards to confiden-
tiality, I did remind them that whatever we discussed, it’s better
that we retain it here; again, it will be shared only on a need-to-
know basis on the Employer’s side.” (Tr. 142–143.)
III. ANALYSIS
A. The General Counsel’s Motion to Amend
Pursuant to Section 102.17 of the Board’s Rules and Regula-
tions, a judge has wide discretion to grant or deny motions to
amend complaints. Rogan Bros. Sanitation, Inc., 362 NLRB
547, 548 fn. 8 (2015), enfd. sub. nom. R&S Waste Services, LLC
v. NLRB, 651 Fed.Appx. 34, 35–36 (2d Cir. 2016). “In deter-
mining whether that discretion has been properly exercised, the
Board evaluates (1) whether there was surprise or lack of notice,
(2) whether there was a valid excuse for the delay in moving to
amend, and (3) whether the matter was fully litigated.” Id.
Here, I find that the facts do not support granting the General
Counsel’s motion. First, at the opening of the hearing, the Gen-
eral Counsel withdrew the complaint allegation that Respond-
ent’s rule prohibiting employees from recording conversations
with coworkers violated Section 8(a)(1) of the Act. Thus, after
the allegation was withdrawn, it was reasonable for Respondent
to presume that, going forward, there were no alleged unfair la-
bor practices with respect to the prohibition, and presented its
evidence at trial accordingly. Had it known of the allegation in
the Motion to Amend before presenting its evidence, Respondent
argues that it would have more fully developed the record. (R.
Supp. Br. at 7.) While the General Counsel argues the matter
was fully litigated, pointing to the fact that Respondent’s counsel
asked Shankar to provide the company’s justification for not al-
lowing the recording, it may not be simply “assumed that Re-
spondent counsel’s handling of Respondent’s case would have
been unchanged had he been aware of the potential new allega-
tions.” Consolidated Printers, 305 NLRB 1061, 1064 (1992).
Thus, I do not necessarily believe that the matter was fully liti-
gated. It is possible that, had Respondent known of the allega-
tion before the hearing closed, Shankar, or Johnson, could have
more fully developed the record regarding Respondent’s no-re-
cording policy, and the application of that policy to the facts pre-
sented involving the August 30 meeting.
Also, the General Counsel first learned of the facts supporting
this allegation from Ramirez-Orozo’s testimony, during the
Government’s case-in-chief. And, Ramirez-Orozo’s testimony
about the incident was confirmed by both Jennings and Shankar
before the trial was adjourned. However, there is no explanation
as to why the Government waited until the filing of its post hear-
ing brief, over a month after the hearing closed, to move to
amend the complaint. Thus, the issues of delay, and lack of no-
tice, also militate against granting the motion.
Similarly, regarding the allegation that Respondent prohibited
employees from discussing the August 30 meeting, the General
Counsel does not explain its delay in moving to amend the com-
plaint. And, although it is difficult to imagine what business jus-
tification Respondent could have proffered for Shankar’s telling
employees that “whatever we discussed, it’s better that we retain
it here,” our system of justice requires that a party accused of
wrongdoing, at the very least, be given an opportunity to present
a defense against the allegation. Because Respondent was never
given such an opportunity, I deny the General Counsel’s
INTERSTATE MANAGEMENT CO. LLC 11
motion.11
B. Alleged 8(a)(1) Violations Involving the
August 30, 2017 Meeting
Paragraph 5(c) of the complaint alleges that, during the Au-
gust 30, 2017 meeting Shankar violated Section 8(a)(1) of the
Act by: interrogating employees; threatening employees with
discharge and unspecified reprisals; and threatening employees
with calling the police.
1. Interrogating employees
To support the allegation that Respondent unlawfully interro-
gated employees, the General Counsel points to Shankar’s ques-
tioning the employees about the committee. Specifically, the
General Counsel asserts that:
Rather than focusing on the subject matter of the letter, Shankar
questioned the employees about their Committee, asking what
syndicate represented them and whether their committee was
legal. . . . Given the tone set by Shankar . . . making a remark
about the police, her title, the location of the room, and the in-
sistence on some formality to the committee . . . Shankar intim-
idated and interrogated the employees about their union and
protected concerted activities. GC. Br. at 22.
Regarding what transpired, I find that the credited evidence
shows that while discussing the letter during the group meeting,
at some point Shankar told the workers they would need to meet
with her individually to discuss their personal issues. 12 The em-
ployees protested saying that they did not want to meet sepa-
rately, they were a committee, and wanted to address their issues
as a committee.13 During this discussion, Ramirez-Orozo said
that the workers had an attorney help them form the committee.
Shankar asked them to explain exactly what the committee was,
whether it was legal, and for the name of their attorney.14 In
response, Ramirez-Orozo said that the committee was a group of
workers who joined together to defend themselves, and declined
to name their attorney.
Citing Rossmore House, 269 NLRB 1176 (1984), affd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985), and Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964), the General Counsel asserts that Shankar’s questions con-
stitute an unlawful interrogation. In deciding whether an inter-
rogation occurred, the Board looks at a number of factors, based
on the “totality of the circumstances.” Rossmore House, 269
NLRB at 1178. These factors include: (1) the background, i.e.
whether there is a history of employer hostility and/or
11 In Boeing Co., 362 NLRB 1789, 1791 (2015), the Board found a
notice given to employees during an investigative interview that “recom-
mended” they refrain from discussing the matter was a violation of Sec.
8(a)(1) of the Act, as “[e]mployees have a Section 7 right to discuss em-
ployer investigations with their coworkers.” However, in finding a vio-
lation, the Board noted that the employer “has not demonstrated the ex-
istence of a legitimate and substantial business justification for this rule.”
Id., slip op. at 4. Here, Respondent was never given an opportunity to
present evidence on whether such a justification existed.
12 I do not credit Shankar’s testimony that the workers were “very
amendable” to meeting individually. Instead, I credit the employees’
testimony that they wanted to meet as a committee, but were told they
had to meet with Shankar separately.
discrimination against employee protected conduct; (2) the na-
ture of the information sought, e.g., whether the interrogator ap-
peared to be seeking information on which to base taking action
against an employee; (3) the identity of the questioner – and their
place in the management hierarchy; (4) the place and method of
the interrogation, e.g., whether there was an atmosphere of un-
natural formality, or if the employee was called from work into
the bosses’ office; and (5) the truthfulness of the reply. West-
wood Health Care Center, 330 NLRB 935, 939 (2000) (citing
Bourne v. NLRB, 332 F.2d at 48). These and other factors are
not applied mechanically.15 Id. “Instead, ‘[t]he flexibility and
deliberately broad focus of this test make clear that the Bourne
criteria are not prerequisites to a finding of coercive questioning,
but rather useful indicia that serve as a starting point for as-
sessing the ‘totality of the circumstances.”’ Id. (citing Perdue
Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998). In the
end, the “task is to determine whether under all the circum-
stances the questioning at issue would reasonably tend to coerce
the employee at whom it is directed so that he or she would feel
restrained from exercising rights protected by Section 7 of the
Act.” Westwood Health Care Ctr., 330 NLRB at 940.
Applying these factors here, I find that Shankar’s questions
did not amount to an unlawful interrogation. While Shankar is
Respondent’s highest level human resources official, it was the
employees who asked for a meeting with someone from the hotel
to discuss their complaints and concerns about Lettenberger.
And, because the employee letter was also sent to Respondent’s
corporate office in Virginia, it is sensible that someone of Shan-
kar’s position would respond. The meeting occurred at a confer-
ence room in the hotel, which is not an unwarranted location
given that both Orona and Brandt were on a leave of absence.
And, the questioning occurred during a back and forth discussion
about complaints the employees expressed in their letter. Shan-
kar asked employees to explain the committee, whether it was
legal, and for the name of their attorney. The response from the
employees was truthful; Ramirez-Orozo told Shankar that the
committee was legal, and was a group of workers who joined
together to defend themselves. While they did not give the name
of their attorney, Brandt testified that it was because they did not
actually have one.
The core of the allegation involves the information Shankar
sought to illicit from the workers. I do not find that, in these
circumstances, Shankar’s request for the name of the commit-
tee’s attorney was coercive, as it came in direct response to
Ramirez-Orozo’s statement that employees formed a committee
13 I do not credit Ramirez-Orozo’s testimony that, during the group
meeting, Shankar asked why employees formed the committee, and
“who is your syndicate [union].” (Tr. 95, 107.) I note that neither Orona
nor Brandt mentioned these statements from Shankar.
14 Shankar admitted asking employees for the name of their attorney.
And, all three employees testified that Shankar asked whether the com-
mittee was legal. Shankar did not testify as to whether she did, or did
not, ask if the committee was “legal.”
15 The Board also looks at other factors such as whether a legitimate
purpose for the questioning existed or was conveyed, whether employees
were given assurances against reprisals, and if there were contemporane-
ous threats. See, e.g., Fiber Glass Sysrems, 298 NLRB 504, 505 (1990);
Amerace Corp., 225 NLRB 1093, 1101 (1976).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and had a lawyer; Shankar did not press the issue further after
the workers refused to give her a name. Thus, I find the circum-
stances here are different from those in Deep Distributors of
Greater NY d/b/a The Imperial Sales, Inc., where the Board
found an unlawful interrogation. 365 NLRB No. 95, slip op. at
18 (2017) (interrogation where general manager asked employee
whether he knew anything about the lawyer who filed an FLSA
lawsuit against the company, and continued questioning the em-
ployee about the lawsuit, noting the employee was listed as a
plaintiff).
I believe that Shankar’s asking employees to explain exactly
what the committee was, and whether it was legal, is more trou-
bling. Shankar, who worked in human resources for over 10
years surely understood the meaning of the employees’ letter,
their statement about forming a workers committee, and knew
that they were not doing anything illegal.16 Instead, I believe
Shankar’s comments were a flippant response to the employees’
insistence that they wanted to meet as a group, as opposed to
individually, because they were a committee. That being said,
cheekiness is not a factor in determining whether an unlawful
interrogation occurred. And, while Shankar asked whether the
committee was legal, she did not specifically tell the workers that
what they were doing was unlawful, or otherwise tell them to
stop. Cf., Storall Mfg. Co., 275 NLRB 220, 230–231 (1985),
enfd. 786 F.2d 1169 (8th Cir. 1986) (Table) (violation of Section
8(a)(1) to tell employees that it was illegal for them to be passing
out union cards on the company’s property). Thus, under the
totality of the circumstances, I do not believe that Shankar’s
comments amounted to an unlawful interrogation, and recom-
mend that the allegation be dismissed.
2. Threatening employees with discharge and
unspecified reprisals
Both of these allegations derive from Ramirez-Orozo’s testi-
mony about what occurred during her individual meeting with
Shankar, and the discussion about the paperwork involving her
work-related accident. According to Ramirez-Orozo, Shankar
asked for proof of her work-related accident. Ramirez-Orozo
asked for a minute, saying she had the paperwork, and testified
that Shankar, appearing angry, and called her a liar. Ramirez-
Orozo then went to her car and came back with a stack of papers.
She testified that, when she returned with the paperwork Shan-
kar, again appearing angry, said “do you know I can fire you this
minute.” (Tr. 110.) Ramirez-Orozo asked whether the comment
was a threat, and Shankar said no. Then, when Shankar asked
for the documents, Ramirez-Orozo testified that she told her to
get them from her doctor. Shankar denied ever threatening fire
anyone, or telling any of the employees that she thought they
16 I find Respondent’s argument that it would be reasonable for Shan-
kar to ask about the committee, and its legality, to avoid a possible
8(a)(2) violation as without merit. (R. Br. at 23–24.) Shankar did not
testify as to why she asked employees to further explain the committee
or its legality. Thus, Respondent’s argument is no more than a post-hoc
attempt to justify Shankar’s comments, that has no basis in the trial evi-
dence.
17 According to Shankar’s notes of the meeting, it was Ramirez-Orozo
who asked, “are you firing me,” several times in reply to Shankar’s ex-
planation as to why the company could not accommodate her request to
were lying. (Tr. 148.)
Regarding this incident, while I have credited various parts of
Ramirez-Orozo’s testimony, particularly when it was corrobo-
rated by the other employees, it was clear at trial that she was
sometimes prone to exaggeration, and was also angry at Re-
spondent for having been fired. Her testimony that Shankar ab-
ruptly called her a liar and threatened to fire her simply does not
ring true.17 Accordingly, I credit Shankar’s testimony that she
never made these statements. Accordingly, I recommend these
allegations be dismissed.
3. Threatening employees with calling the police.
I credit the testimony of the employees that, at the August 30
meeting, Jennings told them in Spanish that it was a good thing
the police were not present, and she hoped that they did not need
to be called.18 That being said, I also credit Shankar’s testimony
that she personally did not say anything about the police.19 Ac-
cordingly, the credited evidence shows that, sometime during the
beginning of the group meeting, Ramirez-Orozo became loud,
was “revved up” asking questions, and trying to dominate the
meeting. Jennings, trying to stop Ramirez-Orozo, said to the em-
ployees that it was a good thing the police were not at the meet-
ing, and she hoped that she did not need to call them.
The Board has found that threats to call the police, in response
to employees’ protected activity, violate Section 8(a)(1) of the
Act. Healthbridge Mgmt., LLC, 365 NLRB No. 37, slip op. at 4
(2017); Roadway Package Systems, Inc., 302 NLRB 961 (1991);
All American Gourmet, 292 NLRB 1111 fn. 2 (1989). And, a
translator’s statements can violate the Section 8(a)(1), with the
respondent being held responsible for the violation, where the
translator is an “important and partisan conduit” between the em-
ployer “and its Spanish-speaking employees” and thereby is the
employer’s agent for communicating with its employees. Ella
Industries, 295 NLRB 976, 976 fn. 2 (1989). Here, however, the
fatal flaw to the unfair labor practice allegation is that the Gen-
eral Counsel does not allege that Jennings was Respondent’s
agent. The Complaint does not contain this allegation, nor does
the government make this argument in its post hearing brief. Ac-
cordingly, because Jennings is not alleged to be Respondent’s
agent, and the statement about the police was made by Jennings,
and not by Shankar, I recommend that this allegation be dis-
missed.
C. Respondent’s Business Code of Conduct
1. Legal framework
In Boeing Co., 365 NLRB No. 154 (2017), the Board estab-
lished a new standard to determine whether facially neutral
change shifts. And Shankar explained that she was not being fired. (GC.
6, p. 5.)
18 I do not credit Ramirez-Orozo’s testimony, which none of the other
employees corroborated, that she heard Shankar say the word “police” in
English, and that she watched Shankar as she said it.
19 As for Shankar’s testimony that she did not hear the interpreter dis-
cuss the police, Shankar admitted that she does not speak or understand
Spanish. Thus, by her own admission, she could not have understood
what Jennings was telling employees and I do not credit this part of her
testimony.
INTERSTATE MANAGEMENT CO. LLC 13
policies or rules violate Section 8(a)(1) of the Act.20 Since 2004
the Board had used a test that a work rule or policy not explicitly
restricting Section 7 activity would be deemed unlawful if: (1)
employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the ex-
ercise of Section 7 rights. Lutheran Heritage Village-Livonia,
343 NLRB 646, 646–647 (2004). In overruling Lutheran Herit-
age, the Boeing Co. Board stated that, when evaluating a facially
neutral provision “the Board will evaluate two things: (i) the
nature and extent of the potential impact on NLRA rights, and
(ii) legitimate justifications associated with the rule.” The Boe-
ing Co., 365 NLRB No. 154, slip. op. at 3. As a result of this
balancing, the Board established three categories of employment
rules, policies, and handbook provisions:
• Category 1, which includes rules that the Board desig-
nates as lawful to maintain, either because (i) the rule,
when reasonably interpreted, does not prohibit or interfere
with the exercise of NLRA rights; or (ii) the potential ad-
verse impact on protected rights is outweighed by justifi-
cations associated with the rule.
• Category 2, which includes rules that warrant individual-
ized scrutiny in each case as to whether the rule would
prohibit or interfere with NLRA rights, and if so, whether
any adverse impact on NLRA-protected conduct is out-
weighed by legitimate justifications.
• Category 3, which includes rules that the Board will des-
ignate as unlawful to maintain because they would pro-
hibit or limit NLRA-protected conduct, and the adverse
impact on NLRA rights is not outweighed by justifica-
tions associated with the rule.
Id. slip. op. at 3, 15.21 These categories are not part of the test
itself, but represent a classification of results from the applica-
tion of the test. Id.
Therefore, to determine the lawfulness of the two work rules
here, I must evaluate whether the rules, when “reasonably inter-
preted,” would potentially interfere with the exercise of Section
20 The Board defined the term “facially neutral” as describing “poli-
cies, rules and handbook provisions that do not expressly restrict Sec. 7
activity, were not adopted in response to NLRA-protected activity, and
have not been applied to restrict NLRA-protected activity.” The Boeing
Co., 365 NLRB No. 154, slip. op. at 1, fn. 4.
21 Even before The Boeing Co., when analyzing the legality of a work
rule, policy, or handbook provision, the Board has required the balancing
of employee Sec. 7 rights with the company’s asserted “legitimate and
substantial business justifications.” Caesar’s Palace, 336 NLRB 271,
272 (2001); International Business Machine Corp., 265 NLRB 638
(1982) (Company policy prohibiting employees from distributing wage
data that was compiled by the company and classified as confidential was
lawful, as the employer had a substantial and legitimate business interest
supporting the policy which outweighed employees’ interests in making
use of data compiled by the company). This was true even after Lutheran
Heritage. See First Transit, Inc., 360 NLRB 619, 619–620, 628 (2014)
(Board affirms ALJ’s finding that employer’s handbook rule on refer-
ences is lawful, as the company “articulated a legitimate and substantial
business justification for the rule that outweighs any speculative in-
fringement of employee rights.”); Century Fast Foods, Inc., 363 NLRB
7 rights, and if so, (i) the nature and extent of the rule’s potential
impact on Section 7 rights, and (ii) the legitimate business justi-
fication associated with the rule. Id. slip. op. at 14.
2. Respondent’s rule on government investigations
Here, a reasonable interpretation of the government investiga-
tions rule requires employees to first obtain clearance from Re-
spondent’s legal department before answering requests from the
police or regulatory authorities. The General Counsel argues
that the term “regulatory authorities” includes the NLRB and
other government regulatory/law enforcement agencies, and
therefore the rule infringes upon employee Section 7 rights as it
requires employees to get pre-clearance from the legal depart-
ment before cooperating with any such entity.22 GC. Br., at 19–
20. Respondent argues that there is no infringement on em-
ployee Section 7 rights, as the rule is limited to “official written
requests” and “subpoenas” and that Interstate “is merely seeking
to prevent employees from providing an official response on be-
half of Respondent.” (R. Br., at 37.)
I disagree with Respondent’s assertion and agree with the
General Counsel. Nowhere does the Code of Conduct say that
the rule is limited to only “official written requests” or “subpoe-
nas,” or that Respondent is seeking to prevent employees from
giving an official response on behalf of the company. Moreover,
there is no evidence that employees have ever been told of this
purported limitation. Laidlaw Transit, Inc., 315 NLRB 79, 83
(1994) (any clarification or narrowed interpretation of an overly
broad rule must be effectively communicated to an employer’s
work force “before the Board will conclude that the impact of
facially illegal rules has been eliminated.”). Because the Code
of Conduct is given to each employee when they are hired, it is
reasonable to conclude they would believe that its provisions
generally govern their interaction with government agencies, in-
cluding Board investigators.23 And, pursuant to the plain reading
of the rule, employees would conclude that requests from a
Board agent to provide an affidavit or other evidence during an
investigation “must not be answered without first obtaining
clearance” from Respondent’s legal department. Accordingly, I
find that the rule—as written—impacts the Section 7 right of
No. 97, slip. op. at 2, fn. 4 (2016) (confidentiality provision in arbitration
agreement a violation as the employer “failed to show a legitimate and
substantial business justification that outweighs the employees’ Sec. 7
rights.”).
22 In her testimony about the need for this rule Johnson used as an
example a Department of Labor official seeking information as part of
an audit. (Tr. 174–176.) Therefore it is clear from both the plain reading
of the rule, and Respondent’s interpretation, that the term “regulatory
authorities” encompasses Federal regulatory agencies such as the De-
partment of Labor and the NLRB. In its brief Respondent does not argue
otherwise.
23 Respondent’s claim that this rule is properly clarified for employees
by the fact that it has posted, in English and Spanish, an NLRB employee
rights poster is not supported by Board precedent. See Passavant Me-
morial Area Hospital, 237 NLRB 138, 138 (1978). Moreover, Respond-
ent’s Code of Conduct is given to all Interstate employees throughout the
United States. There was no evidence presented at trial that the NLRB
Employee Rights poster is posted at any locations outside of Santa Fe.
(Tr. 125–128.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
employees to provide evidence to the Board, or to cooperate in
Board investigations.24
I further find that the impact on Section 7 rights is severe. In
practice, Respondent’s rule would require employees to identify
themselves to Interstate as having been contacted by a Board
agent—or other government/law enforcement agency—and re-
ceive clearance before providing evidence; this puts employees
at risk of intimidation and coercion. As noted by the Supreme
Court, “Congress has made it clear that it wishes all persons with
information about” alleged unfair labor practices “to be com-
pletely free from coercion against reporting them to the Board.”
Nash v. Florida Industrial Commission, 389 U.S. 235, 238
(1967). Thus, in NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 239–242 (1978), the Supreme Court recognized the “special
danger” of witness intimidation, including intimidating employ-
ees and others to change their testimony—or not testify at all—
if “employers, or in some cases, unions” were allowed pre-hear-
ing discovery in NLRB proceedings.25 Robbins Tire & Rubber
Co., 437 U.S. 214, 239–242 (1978). The Court noted that the
“danger of witness intimidation is particularly acute with respect
to current employees . . . over whom the employer by virtue of
the employment relationship, may exercise intense leverage.”
Id. Here, Respondent’s rule puts employees at risk of intimida-
tion, and could make them “reluctant to give statements to NLRB
investigators at all.” Id. at 240. (noting that because the “vast
majority” of NLRB cases are resolved short of hearing, without
the need to disclose witness statements, employees giving state-
ments to Board investigators can have some assurance that in
most instances their statement will not be made public). Cf.
United States v. Julius Doochin Enterprises, Inc., 370 F.Supp.
942, 943 (M.D.Tenn. 1973) (Court noting that the “informer’s
privilege,” which privileges the government from disclosing the
identity of individuals providing information concerning viola-
tions of the law has been given “great weight” in Fair Labor
Standards Act cases “by virtue of the fact that enforcement is so
dependent upon the cooperation of, and information from, em-
ployees, and there is therefore, a concomitant need for protecting
those employees from potential retribution from employers.”)
Although Robbins Tire & Rubber dealt with the issue of
providing actual witness statements to an opposing party before
trial, the potential for coercion and intimidation similarly applies
to situations such as here, where employees are required to iden-
tify themselves to their employer as having been contacted by a
Board investigator, and then receive pre-clearance from the com-
pany before providing evidence to the Board during an investi-
gation. Indeed, the danger of potential intimidation, including
trying to shape a witnesses’ testimony or convince them not to
cooperate, is even more acute before the employee has actually
24 It similarly impacts upon the Section 7 right of employees to con-
certedly participate in investigations by other regulatory or law enforce-
ment agencies. T & W Fashions, 291 NLRB 137, 137 fn. 2 (1988) (em-
ployees’ concerted participation in U.S. Department of Labor investiga-
tive meetings protected); Squier Distributing Co., 276 NLRB 1195, 1195
fn. 1 (1985), enfd. 801 F.2d 238, 241 (6th Cir. 1986) (Section 7 protects
employees’ concerted cooperation with sheriff regarding suspicions that
manager was embezzling company funds).
25 The Board does not require the disclosure of witness names to a
party prior to an unfair labor practice hearing. See Pacific 9
provided a witness statement than after.
Given the severe infringement upon employee Section 7
rights, I find that Respondent’s purported justification associated
with the rule does not outweigh the adverse impact upon em-
ployee rights.26 If, as Respondent asserts in its post hearing brief,
the rule is “merely seeking to prevent employees from providing
an official response on behalf of Respondent,” there would be no
need to prohibit all employees from answering requests from
Board investigators, or other regulatory/law enforcement author-
ities, without obtaining pre-clearance from the legal department.
Instead, “[a] more narrowly tailored rule that does not interfere
with protected employee activity would be sufficient to accom-
plish the Company’s presumed interest.”27 Cintas Corp. v.
NLRB, 482 F.3d 463, 470 (D.C. Cir. 2007). See also, Mercury
Marine-Div. of Brunswick Corp., 282 NLRB 794, 795 (1987)
(the Board has held that any rule requiring employees to secure
permission from their employer as a precondition to engaging in
protected concerted activity on an employee’s free time and in
non-work areas is unlawful); Trump Marina Associates., LLC v.
NLRB, 435 Fed.Appx. 1, 2 (D.C. Cir. 2011) (employee handbook
rule prohibiting employees from releasing statements to the me-
dia without prior permission a violation). Accordingly, I find
that, by maintaining a rule in its Code of Conduct requiring em-
ployees to get clearance from the company before answering re-
quests from the police, Internal Revenue Service, or other regu-
latory authorities, Respondent has violated Section 8(a)(1) of the
Act.
3. Respondent’s rule on information protection
The rule on Information Protection in Section 6 of Respond-
ent’s Code of Conduct defines confidential information as in-
cluding the “personal information” of an employee, or former
employee. It then defines personal information “broadly to in-
clude any information that can be associated with or traced to an
individual, such as an individual’s name, address, telephone
number, [and] email address.” The General Counsel argues that
this portion of the rule violates Section 8(a)(1) of the Act, as it
interferes with the right of employees to share the names and
contact information of coworkers with other employees, labor
unions, government agencies, or other third parties—such as So-
mos—in furtherance of union or concerted activities. (GC. Br.,
at 18.)
Respondent asserts that the purpose of the policy is: (1) to
protect the personally identifiable information (PII) that it col-
lects from guests, employees, vendors, and other third parties as
required by various State and Federal privacy laws; and (2) to
protect the personal safety of Respondent’s employees. Resp’t.
Br., at 26. Thus, Respondent argues the rule cannot be read to
Transportation, Inc., 21–CA–116403, 2015 WL 3643583 (2015) (un-
published order) citing Mid-West Paper Products Co., 223 NLRB 1367,
1376 (1976).
26 As for Johnson’s testimony that she does not know of anyone ever
being disciplined under this rule, the mere maintenance of a rule that can
chill employee Section 7 rights and amount to an unfair labor practice,
even without evidence of enforcement. Cintas Corp. v. NLRB, 482 F.3d
463, 467–468 (D.C. Cir. 2007).
27 The same is true regarding the various scenarios about which John-
son testified to justify the rule.
INTERSTATE MANAGEMENT CO. LLC 15
prohibit employee Section 7 activity. In support of its defense,
Respondent cites to the various hypotheticals Johnson gave in
her testimony about the prohibited use of personal information
“such as accessing PII in Respondent’s database and sharing it
with unauthorized persons, sharing PII with one of Respondent’s
competitors, or jeopardizing an employee’s safety by sharing PII
with a third party.” Id. Finally, relying on the terms “our Com-
pany” in the rule, Respondent argues that the rule only prohibits
the release of company non-public information stored in Re-
spondent’s databases. Id. at 27.
I believe that Section 6, when reasonably interpreted in con-
text with the other rules in the Code of Conduct, interferes with
the exercise of employee Section 7 rights. The Board has long
held that employees can lawfully use information that comes to
their attention in the normal course of their work activity and
association with colleagues, including the names and contact in-
formation of their coworkers, for self-organizing purposes.
Thus, in Ridgley Manufacturing, 207 NLRB 193, 196–197
(1973) the Board held that an employee was engaged in pro-
tected, concerted activity by memorizing the names of cowork-
ers from timecards for the purpose of contacting them about un-
ionizing. And in Gray Flooring, 212 NLRB 668 (1974), the
Board found that an employer unlawfully fired a worker for cop-
ying the names and telephone numbers of coworkers from infor-
mation that was openly available in a supervisor’s office in order
to give to the union. The Gray Flooring Board noted that em-
ployees regularly went to the office for both social and work re-
lated reasons, and employees were allowed to get various papers
and information from the office, without supervision or asking
for permission. Id. 668–671. Because the information was not
“in any meaningful sense, ‘private records,’” the employee was
free to use that information to help the union in organizing. Id.
Here, the rule on information protection deems as confidential
employee names, addresses, telephone numbers and email ad-
dresses; there is no exception for information employees learn
during the normal course of their work and association with
coworkers, which they are entitled to use for activities protected
under Section 7 of the Act. Albertsons, Inc., 351 NLRB 254, 259
(2007) (confidentiality rule cannot prevent employee from
providing list of employee names to union organizers). As such,
the rule interferes with employee Section 7 rights.
As for Respondent’s claim that the rule is aimed at protecting
personally identifiable information (PII)—neither the acronym
“PII” nor the phrase “personally identifiable information” ap-
pears anywhere in the rule—or in the Code of Conduct for that
matter. The same is generally true regarding Respondent’s claim
that the rule is necessary for the protection of employee safety.
There is no explanation in the rule saying that confidential infor-
mation does not prohibit employee Section 7 activity, but is in-
stead meant for the protection of employee safety in situations
such as those testified to by Johnson, such as potential domestic
violence, etc. Finally, while the rule does use the term “our
Company,” Respondent reads the sentence out of context. In no
way is the rule explicitly limited to company non-public infor-
mation contained in Respondent’s databases. Accordingly, I
find that the rule—as written—impacts employee Section 7
rights to share information amongst themselves, and with third
parties, including labor organizations and worker advocacy
groups.
I also find that the impact on employee Section 7 rights is sig-
nificant. As noted by the Court of Appeals for the District of
Columbia Circuit, the type of information deemed confidential
here—employee names and contact information—is the type of
information “that employees must be permitted to gather and
share among themselves and with union organizers in exercising
their Section 7 rights.” Quicken Loans, Inc. v. NLRB, 830 F.3d
542, 548 (D.C. Cir. 2016).
Thus, the question here is whether the rule’s adverse impact
on employee rights is outweighed by Respondent’s legitimate
justifications; I find that it is not. As with the government inves-
tigations rule, Respondent can accomplish all of its presumed
justifications with a more narrowly tailored rule that does not in-
terfere with employee protected activity, including the right to
share the names and contact information of their coworkers with
a union. Cintas Corp. v. NLRB, 482 F.3d 463, 470 (D.C. Cir.
2007). Because a more narrowly drafted rule would meet Re-
spondent’s purported interests of protecting PII, and employee
safety, I find that its business justifications have not outweighed
the significant infringement on employee Section 7 rights. Id.
Therefore, I find that Respondent has violated Section 8(a)(1) of
the Act by maintaining a rule in its Code of Conduct that deems
as confidential the names, addresses, telephone numbers, and
email addresses of current and former employees.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
maintaining an overly broad and discriminatory rule in its Busi-
ness Code of Conduct requiring employees to keep confidential
the names, addresses, telephone numbers, and email addresses of
their coworkers or former coworkers.
3. The Respondent violated Section 8(a)(1) of the Act by
maintaining an overly broad and discriminatory rule in its Busi-
ness Code of Conduct requiring employees to receive clearance
before answering requests from the police, Internal Revenue Ser-
vice, or other regulatory authorities.
4. The Respondent did not violate the Act as further alleged
in the complaint.
REMEDY
Having found Respondent has engaged in certain unfair labor
practices, I shall order it to cease and desist therefrom and to take
certain affirmative actions designed to effectuate the policies of
the Act. The Respondent shall be required to post the attached
notice, in both English and Spanish, in accordance with J. Picini
Flooring, 356 NLRB 11 (2010).
Also, immediate rescission of the offending rules is the stand-
ard affirmative remedy for the maintenance of unlawful work
rules, as it guarantees workers can engage in protected activity
without the fear of being subjected to the unlawful rules. Fresh
& Easy Neighborhood Market, Inc., 361 NLRB 151, 159
(2014)159 (citing Guardsmark, LLC, 344 NLRB 809, 812
(2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir. 2007). Ac-
cordingly, Respondent shall supply employees with inserts for
its Business Code of Conduct stating that the unlawful rules have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
been rescinded, or with new and lawfully worded rules on adhe-
sive backing that will cover the unlawfully broad rules, until it
republishes the Business Code of Conduct either without the un-
lawful provisions or with lawfully-worded rules. Id. Any copies
of the Business Code of Conduct that are printed with the unlaw-
ful rules must include the inserts before being distributed to em-
ployees. Id.
Finally, the General Counsel also seeks a nationwide notice
posting as a remedy. A nationwide notice posting is appropriate
where the employer’s unlawful rules are maintained on a com-
pany wide basis. See Fresh & Easy Neighborhood Market, Inc.,
361 NLRB at 160. “[O]nly a company-wide remedy extending
as far as the company-wide violation can remedy the damage.”
Guardsmark, LLC. v. NLRB, 475 F.3d 369, 381 (D.C. Cir. 2007).
Here, the evidence shows that Respondent maintains its Business
Code of Conduct nationwide. Therefore, I find that a nationwide
remedy is appropriate.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended28
ORDER
Respondent Interstate Management Company, LLC, as agent
for BRE Newton Hotels Property Owner, LLC, d/b/a Residence
Inn by Marriott Santa Fe All-Suites Hotel, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining rules, including a provision in its Business
Code of Conduct, requiring employees to keep confidential the
names, addresses, telephone numbers, and email addresses of
their coworkers or former coworkers.
(b) Maintaining rules, including a provision in its Business
Code of Conduct, requiring employees to receive clearance from
the company before answering requests from the police, Internal
Revenue Service, or other regulatory authority.
(c) In any like or related manner, interfering with restraining
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Rescind the rules requiring employees to keep confidential
the names, addresses, telephone numbers, and email addresses of
their coworkers or former coworkers.
(b) Rescind the rules requiring employees to receive clear-
ance from the company before answering requests from the po-
lice, Internal Revenue Service, or other regulatory authority.
(c) Furnish employees with inserts for the current Business
Code of Conduct that (1) advise them that the unlawful rules
have been rescinded or (2) provide a lawfully worded rules on
adhesive backing that will cover the unlawful rules; or publish
and distribute to employees a revised policy that (1) does not
contain the unlawful rules or (2) provides lawfully worded rules.
To the extent that these rules, or any characterizations or sum-
maries of the same, are also found on the Respondent’s intranet
28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
portal, revise that content so that it (1) does not contain the un-
lawful rules, or (2) provide lawfully worded rules.
(d) Within 14 days after service by the Region, post (in both
English and Spanish) at all of its facilities nationwide, including
its Santa Fe, New Mexico facility, copies of the attached notice
marked “Appendix.”29 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has gone out of
business or closed any of the facilities involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former employ-
ees employed by the Respondent at the closed facilities any time
since March 22, 2017.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 28 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply with this order.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. September 11, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose a representative to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain work rules, including rules in our Busi-
ness Code of Conduct, requiring employees to keep confidential
the names, addresses, telephone numbers, and email addresses of
their coworkers or former coworkers.
WE WILL NOT maintain work rules, including rules in our Busi-
ness Code of Conduct, requiring that employees receive
29 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
INTERSTATE MANAGEMENT CO. LLC 17
clearance before answering requests from the police, Internal
Revenue Service, or other regulatory authority.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind the portions of our Business Code of Conduct
requiring employees to keep confidential the names, addresses,
telephone numbers, and email addresses of their coworkers or
former coworkers.
WE WILL rescind the portions of our Business Code of Conduct
requiring employees to receive clearance before answering re-
quests from the police, Internal Revenue Service, or other regu-
latory authority.
WE WILL furnish you with inserts for the Business Code of
Conduct that (1) advise you that the unlawful rules have been
rescinded, or (2) provide lawfully-worded rules on adhesive
backing that will cover the unlawful rules; or WE WILL publish
and distribute to all current employees nationwide a revised
Business Code of Conduct that (1) do not contain the unlawful
rules, or (2) provide lawfully-worded rules.
INTERSTATE MANAGEMENT COMPANY, LLC, AS AGENT
FOR BRE NEWTON HOTELS PROPERTY OWNER, LLC,
D/B/A RESIDENCE INN BY MARRIOTT SANTA FE ALL -
SUITES HOTEL
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/28-CA-206663 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.