Modern Management Services, LLC d/b/a The Modern Honolulu

National Labor Relations Board - Board Decisions

Aug 18, 2014

361 N.L.R.B. 228 (N.L.R.B. 2014)

228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Modern Management Services, LLC d/b/a The Mod-
ern Honolulu and UNITE HERE! Local 5. Cases
20–CA–072776, 20–CA–080437, 20–CA–081477,
20–CA–081478, and 20–CA–083330
August 18, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On January 23, 2014, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified and set
forth in full below.4
1 Pursuant to Reliant Energy, 339 NLRB 66 (2003), we have accept-
ed and considered both the Respondent’s postbrief letter calling our
attention to recent case authority and the General Counsel’s letter in
response.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
3 For the reasons stated in his decision, we adopt the judge’s finding
that the Respondent violated Sec. 8(a)(1) by interrogating employees
Jovelyn Gecain and Florence Miguel. We find it unnecessary to pass
on the judge’s additional finding that the Respondent unlawfully inter-
rogated employee Amy Chow, as any such finding would be cumula-
tive of the other interrogation findings and would not affect the remedy.
Member Hirozawa would adopt the judge’s finding that the Respondent
unlawfully interrogated Chow. Member Johnson finds it unnecessary
to pass on the judge’s finding that the Respondent unlawfully interro-
gated Miguel.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by refusing employee Jenie Amoguis’ request for a union repre-
sentative during an investigatory interview, we note that Amoguis’
statement at the interview, that “I need someone to be with me,” suffi-
ciently put the Respondent on notice of Amoguis’ desire for union
representation. See Southwestern Bell Telephone Co., 227 NLRB
1223, 1223 (1977) (employee’s right to union representation sufficient-
ly invoked where employee remarked: “I would like to have someone
there that could explain to me what was happening.”).
4 We shall modify the judge’s recommended Order to incorporate
the standard affirmative remedies for the violations found. We shall
also substitute a new notice to conform to the Order as modified and in
For the reasons stated in his decision, we adopt the
judge’s finding that the Respondent violated Section
8(a)(1) by surveilling employees’ union activity, and by
creating the impression of surveillance, when Supervisor
Raymond Texeria attended a bargaining session that em-
ployees were observing, and informed employee Amy
Chow that he was there to record the names of those in
attendance. Contrary to our dissenting colleague’s con-
tention, the coercive nature of Texeria’s conduct is not
diminished by the fact that the meeting was “open.” See
Heartland of Lansing Nursing Home, 307 NLRB 152,
159 (1992) (“surveillance of employees’ activities car-
ried on in a public place” is unlawful if such surveillance
involves something other than fortuitous circumstances
and “involve[s] suspicious behavior or untoward con-
duct”); W. T. Carter & Brother, 90 NLRB 2020, 2025
(1950) (“even if the [respondents’ representatives] were
privileged to attend [two union] meetings because of
their open nature, such privilege did not extend to having
a reporter take notes on the proceedings”).5 Indeed, by
his own admission, Texeria did not merely attend the
“open” bargaining session, but actively observed and
recorded the names of the employees who chose to at-
tend.6
We also adopt the judge’s finding that, prior to this
bargaining session, the Respondent created the impres-
sion of surveillance when, in the presence of employee
Wilma Riveral, Housekeeping Director Emma Clemente
instructed Texeria to attend the session, take notes of
who attended, and report what happened. We find no
merit in the Respondent’s contention that the judge erred
in finding this violation because it was not alleged in the
complaint. The facts that form the basis of this violation
were fully litigated by the parties, and the issue is closely
connected to the complaint’s surveillance and impression
of surveillance allegations. Therefore, the judge’s find-
ing of this violation did not deprive the Respondent of
accordance with our decision in Durham School Services, 360 NLRB
694 (2014).
5 Our dissenting colleague additionally contends that Heartland of
Lansing Nursing Home, supra, and W. T. Carter & Brother, supra, are
not applicable because the surveillance of employees’ union activities
in those cases was accompanied by other acts showing employer oppo-
sition to a union’s organizing effort. This is a distinction without sig-
nificance. In both cases the unlawfully surveilled activity was, as here,
open. In neither case did the Board hold that evidence of additional
coercive conduct was required to establish the violation.
6 We note that in contending that Texeria had a legitimate purpose
for attending the bargaining session, the Respondent relied on Clemen-
te’s testimony that Texeria attended the meeting to determine whether
additional employees were needed to cover for the on-duty employees
who were observing the bargaining session. That testimony, however,
was specifically discredited by the judge. We therefore find no support
for our colleague’s contention that Texeria “seemingly” had a legiti-
mate reason for attending the bargaining session.
361 NLRB No. 24

MODERN HONOLULU 229
due process. Pergament United Sales, 296 NLRB 333,
334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Moreo-
ver, Q-1 Motor Express, Inc., 308 NLRB 1267, 1268
(1992), cited by our dissenting colleague, is distinguish-
able. In that case, the Board declined to find an unal-
leged violation because the General Counsel affirmative-
ly stated at the hearing that the evidence regarding that
conduct was adduced as background for the incidents
alleged in the complaint. The General Counsel made no
such representation in this proceeding.
For the reasons stated by the judge, we find that the
Respondent unlawfully terminated employee Juliana
Alcaraz. We also adopt the judge’s finding that, follow-
ing Alcaraz’ unlawful discharge, the Respondent violated
Section 8(a)(5) and (1) by denying her access to the Re-
spondent’s facility in her capacity as an agent of the Un-
ion. We find that Alcaraz’ prior employment with the
Respondent provided no basis for the Respondent’s uni-
lateral denial of access. See generally Claremont Resort
& Spa, 344 NLRB 832, 832, 834–835 (2005) (employer
violated Section 8(a)(5) by refusing to allow a former
employee access to its facility to perform her duties as a
union representative); Fitzsimons Mfg. Co., 251 NLRB
375, 379 (1980) (“It is well established that each party to
a collective-bargaining relationship has both the right to
select its representative for bargaining and negotiations
and the duty to deal with the chosen representative of the
other party.”), enfd. sub nom. Auto Workers v. NLRB,
670 F.2d 663 (6th Cir. 1982).7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Modern Management Ser-
vices, LLC, d/b/a The Modern Honolulu, Honolulu, Ha-
waii, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion activities, sympathies, or support on behalf of the
Union, UNITE HERE! Local 5.
(b) Placing employees under surveillance while they
engage in union or other protected concerted activities.
(c) Creating the impression that it is surveilling its
employees’ union or other protected concerted activities.
7 Contrary to our dissenting colleague, we find that the judge’s cred-
ibility resolutions are adequately supported (see fn. 2, supra) and that
there is no need to remand the Alcaraz termination allegation for more
explicit findings regarding testimony that contradicts the explicitly
credited testimony of the General Counsel’s witnesses. “It is well
established that explicit credibility resolutions are unnecessary where a
judge has implicitly resolved conflicts in the testimony.” Amber Foods,
Inc., 338 NLRB 712, 713 fn. 7 (2002).

(d) Denying the requests of employees for union rep-
resentation during investigatory interviews which they
reasonably believe may result in discipline.
(e) Discharging employees because they engage in
protected concerted activities.
(f) Denying the Union’s agents access to the Re-
spondent’s facility to perform their collective-bargaining
duties in accord with the customary practice the Re-
spondent has followed since recognizing the Union as the
exclusive collective-bargaining representative of its em-
ployees.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Grant the Union’s agents access to the Respond-
ent’s facility to perform their collective-bargaining duties
in accord with the practice followed since recognizing
the Union as the exclusive collective-bargaining repre-
sentative of its employees.
(b) Within 14 days from the date of this Order, offer
Juliana Alcaraz full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(c) Make Juliana Alcaraz whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her, in the manner set forth in the remedy
section of the judge’s decision.
(d) Compensate Juliana Alcaraz for any adverse tax
consequences of receiving backpay in one lump sum, and
file a report with the Social Security Administration allo-
cating her backpay award to the appropriate calendar
quarters.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter, notify Juliana Al-
caraz in writing that this has been done and that the dis-
charge will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
the Modern Honolulu Hotel, in Honolulu, Hawaii, copies

230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the attached notice marked “Appendix.”8 Copies of
the notice, on forms provided by the Regional Director
for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 2011.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

MEMBER JOHNSON, dissenting in part.
I dissent in two respects.
First, I would not find either the surveillance or im-
pression of surveillance violations. As to the Clemente-
Texeria conversation overheard by Riveral, the complaint
did not allege this violation, the General Counsel never
sought to amend the complaint, and he did not contend in
the posthearing brief that it was unlawful. Under these
circumstances, the Respondent did not have fair notice
that the judge would find the unalleged violation. Thus,
the Board has dismissed additional violations found
based on evidence introduced as only background where
there was no complaint allegation, no amendment was
sought, and no argument was made in the General Coun-
sel’s posthearing brief. Q-1 Motor Express, Inc., 308
NLRB 1267, 1268 (1992). The absence of an affirmative
representation by the General Counsel limiting the pur-
pose for which the evidence is introduced does not satis-
fy the due process requirement of putting the employer
on notice of potential liability for a new, separate claim.
See Mine Workers District 29, 308 NLRB 1155, 1158
(1992) (simple presentation of evidence does not satisfy
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
due process requirement that a claim has been fully and
fairly litigated where respondent lacks notice that it faces
liability for the particular conduct) (citing NLRB v.
Quality C.A.T.V., Inc., 824 F.2d 542, 548 (7th Cir.
1987)).
As to Texeria’s presence at the first hotel-union bar-
gaining session, I note that it was an open meeting which
the Union had invited employees to attend. The Re-
spondent’s negotiators, including the hotel’s general
manager and human resources manager, were present as
well and could just as easily see and identify the employ-
ees who openly attended. For that matter, the Union it-
self publicized their attendance by taking photos of the
employees and the next day distributing at the workplace
flyers containing their photos. Texeria, moreover, seem-
ingly had a legitimate reason for attending as it is undis-
puted that the Union and the hotel had not agreed that
on-duty employees could attend.1 Under these circum-
stances, I find that Texeria’s brief, open presence at the
joint bargaining session is not reasonably characterized
as surveillance or creating the impression of surveil-
lance.2
Second, although I agree that the Respondent violated
Section 8(a)(5) by denying Alcaraz access as the Union’s
1 My colleagues note that the Respondent relied on discredited tes-
timony by Clemente about Texeria’s attendance at the bargaining ses-
sion to support his having a legitimate purpose. But the judge’s credi-
bility resolution in that regard, as with his credibility resolution con-
cerning Alcaraz’ conduct at the December 8 meeting, see infra, also
lacks adequate explanation. In any event, my conclusion that Texeria
seemingly had a legitimate reason for briefly appearing at the session
(to see if any on-duty employee was present there instead of working)
is a reasonable inference drawn from the undisputed fact that no
agreement existed permitting on-duty employees to attend.
2 Heartland of Lansing Nursing Home, supra, and W. T. Carter &
Brother, supra, cited by my colleagues, are distinguishable. Unlike the
facts of this case, the conduct in those cases found to be unlawful sur-
veillance of employees’ union activities was part of the employer’s
opposition to the union’s organizing effort. Heartland of Lansing
Nursing Home, moreover, involved continuous, systematic, surrepti-
tious surveillance by a rotating group of supervisors, without any justi-
fication, of employees’ handbilling outside the facility. W. T. Carter &
Brother likewise arose in far different circumstances. The Board there
found that the presence of a reporter taking notes for the respondents at
two “open” union meetings was just a continuation of the respondents’
earlier unlawful surveillance when its supervisors and a deputy sheriff
followed the union organizers as they drove around the “company
town” conducting mobile meetings with a loudspeaker. W. T. Carter &
Brother, supra at 2024. Because the respondents had also unlawfully
precluded any “stationary” union meetings within the “company town,”
the Board concluded that the surveillance of the organizers “was not
motivated solely by a desire simply to observe these roving meetings,
but was also motivated by a desire to completely prevent even that type
of limited meeting.” Id. For the same reasons, the Board found no
merit, therefore, in the respondents’ contention that they could lawfully
send a reporter on their behalf to record the proceedings of “open”
union meetings. Id. at 2025.

MODERN HONOLULU 231
agent, I would not adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) by terminating Al-
caraz. I would instead remand this issue to the judge for
further explanation of his conclusion that her conduct at
the December 8, 2011 meeting remained protected under
the test of Atlantic Steel Co., 245 NLRB 814 (1979). In
so finding, the judge rejected the Respondent’s version
of events at this meeting based on crediting certain testi-
mony of the General Counsel’s witnesses. However, the
judge failed to adequately explain his credibility deter-
minations, failed to consider those same witnesses’ tes-
timony supportive of the Respondent’s version, and ig-
nored, without explanation, arguably corroborating tes-
timony by two of the Respondent’s witnesses who are
never even mentioned in his decision. I would remand
this case in the first instance for the judge to make more
explicit key credibility resolutions and to address the
record evidence at odds with his findings. I also do not
agree with the suggestion in the judge’s Atlantic Steel
analysis that only violent or similar misconduct can
cause loss of statutory protection, see Plaza Auto Cen-
ters, Inc., 360 NLRB 972, 986 (2014) (Member Johnson
dissenting) or that the Atlantic Steel provocation factor
favors protection even where the alleged employer prov-
ocation of an employee “outburst” is not an unfair labor
practice. Atlantic Steel, supra at 816.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

WE WILL NOT coercively interrogate you about your
union activities, sympathies, or support on behalf of the
Union, UNITE HERE! Local 5.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT create the impression that we are sur-
veilling your union or other protected concerted activi-
ties.
WE WILL NOT deny your requests for union representa-
tion during investigatory interviews which you reasona-
bly believe may result in discipline.
WE WILL NOT discharge you for engaging in protected
concerted activities.
WE WILL NOT deny the Union’s agents access to our
facility to perform their collective-bargaining duties in
accord with the customary practice we have followed
since recognizing the Union as your exclusive collective-
bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL grant the Union’s agents access to our facili-
ty to perform their collective-bargaining duties in accord
with the practice we have followed since recognizing the
Union as your exclusive collective-bargaining repre-
sentative.
WE WILL, within 14 days from the date of the Board’s
Order, offer Juliana Alcaraz full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Juliana Alcaraz whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL compensate Juliana Alcaraz for any adverse
tax consequences of receiving backpay in one lump sum,
and WE WILL file a report with the Social Security Ad-
ministration allocating her backpay award to the appro-
priate calendar quarters.
WE WILL remove from our files any reference to the
unlawful discharge of Juliana Alcaraz, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the discharge will not be used
against her in any way.
MODERN MANAGEMENT SERVICES, LLC, D/B/A
THE MODERN HONOLULU

The Board’s decision can be found at
www.nlrb.gov/case/20–CA–072776 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Trent K. Kakuda and Katrina H. Woodcock, Esqs., for the Act-
ing General Counsel.
Robert S. Katz and John S. Mackey, Esqs. (Torkildson, Katz,
Moore, Hetherington & Harris), of Honolulu, Hawaii, for
the Respondent.
Jennifer Cynn, Esq. (UNITE HERE! Local 5), of Honolulu,
Hawaii, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. UNITE
HERE! Local 5 (Union, Local 5, or Charging Party) filed Case
20–CA–072776 on January 18, 2012, alleging that Modern
Honolulu (Respondent, Hotel, or Employer) violated Section
8(a)(3) and (1) of the National Labor Relations Act (NLRA or
Act) by terminating Alcaraz. The Union filed Case 20–CA–
080437 on May 4 alleging that Respondent violated Section
8(a)(1) and (5) by refusing to recognize the Union’s appointed
bargaining representative and by denying the representative
access to its property. On May 18, the Union filed Cases 20–
CA–081477 and 20–CA–081478 alleging that Respondent’s
agent violated Section 8(a)(1) repeatedly by coercively interro-
gating employees, and by engaging in unlawful surveillance or
giving the impression of engaging in unlawful surveillance of
employee union activities. On June 15, the Union filed Case
20–CA–083330 alleging that Respondent’s agent violated Sec-
tion 8(a)(1) and (3) by discriminating and retaliating against
employee Jenie Amoguis for her union activity and by denying
Amoguis’ request to have union representation at an investiga-
tory interview that led to disciplinary action.
Based on these and other charges that Union filed against
Respondent that are no longer relevant here, the Regional Di-
rector for National Labor Relations Board, Region 20, issued an
order consolidating the pending charges and a consolidated
complaint on June 29 alleging that Respondent violated Section
8(a)(1), (3), and (5). On September 14, 2012, the Regional
Director issued an order severing certain of the cases initially
consolidated, and issued a second order consolidating cases and
a second amended consolidated complaint in the cases set forth
in the caption here alleging that Respondent violated Section
8(a)(1), (3), and (5). This pleading (the complaint) is the Gen-
eral Counsel’s principal pleading in this case. Respondent filed
a timely answer denying the substantive unfair labor practice
allegations in the complaint.
I heard this case in Honolulu, Hawaii, from October 1
through 4, 2012. Having now considered the record, including
the demeanor of the witnesses, together with the briefs filed on
behalf of the General Counsel and the Respondent, I find that
the Respondent violated Section 8(a)(1) and (5) of the Act as
alleged based on the following1
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a Hawaii limited liability company, operates the
Modern Honolulu, a hotel formerly known as the Waikiki Edi-
tion, a business that provides lodging and food for its guests.
During a 12-month period to August 31, 2012, Respondent
derived gross revenues in excess of $500,000 from conducting
this operation. During the same period, Respondent purchased
and received products, goods, and materials valued in excess of
$5000 from locations outside the State of Hawaii. Respondent
admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent further admits, and I find, that Unite Here! Local 5
is a labor organization within the meaning of Section 2(5) of
the Act. I further find that it would effectuate the purposes of
the Act of the Board to exercise its statutory jurisdiction to
resolve this labor dispute.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Marriott International owned this property when it operated
as the Waikiki Edition. Marriott voluntarily recognized Local 5
as the collective-bargaining representative of a wall-to-wall
hotel industry unit on June 15, 2011,2 but sold the property to
Respondent before it concluded a collective-bargaining agree-
ment. Respondent began operating the property on August 28
and renamed it the Modern Honolulu. It hired most of the for-
mer Marriott workers, and granted recognition to Local 5 in the
existing unit.
Following recognition, the Employer voluntarily granted Lo-
cal 5’s assigned agents access to the hotel property.3 Under
this arrangement, union agents walked around the hotel unes-
corted to observe working conditions but only spoke with em-
ployees in the nonworking areas such as the locker rooms and
the employee dining room. Local 5 assigned two agents to
service the employees they represented at the property. Be-
tween the time of the Union’s initial recognition and early
2012, these agents were Renee Togafau and Justin Jansen.
They regularly visited the property to observe working condi-
tions, and to talk with workers about their job concerns, upcom-
ing union meetings, and the status of the contract negotiations.
This case primarily concerns workers in the Hotel’s house-
keeping department, a portion of the overall unit represented by
Local 5. The unit includes the following nonsupervisory work-
1 In its posthearing brief, counsel for the General Counsel moved to
withdraw par. 8(b) of the Second Amended Complaint. The motion is
granted.
2 The relevant events involving these parties occurred between Au-
gust 2011 and June 2012. References in my findings to particular dates
refer to the appropriate 2011 or 2012 calendar year.
3 In an April 1 letter, Local 5 Agent Laura Moye asserted that this
access arrangement provided: (1) union representatives will not hand
out leaflets to workers in public working areas; (2) union representa-
tives will have access in the kitchen but will not go behind the line; and
(3) union representatives will not go on guest floors to speak to house-
keepers. (GC Exh. 10.) Respondent never disputed her assertion.

MODERN HONOLULU 233
ers from the housekeeping department: room attendants, turn-
down room attendants, public area attendants, linen coordina-
tors, housekeeping coordinators, seamstresses, and housemen.
About 80 employees work in this department.
In October 2011, Respondent hired Emma Clemente as the
manager of the housekeeping department. A month later, the
Hotel promoted Clemente to the position of director of house-
keeping and a succession of individuals succeeded her as the
department manager. At the times pertinent here, Bogdanca
Spiric and Alex Teng served as the housekeeping manager.
The department also employed several supervisors, including
Raymond Texeria who figures in the allegations here.
The housekeeping department is located in the Hotel base-
ment. Two private offices are contained within the depart-
ment’s space, one for its director and the other for its manager.
The nonsupervisory coordinator’s desk is located in the outer
space near the entrance leading to the director’s private office.
A large bulletin board for use in posting employee work sched-
ules and other notices of importance to the workers is located
on a wall in the large outer space of the departmental office.
Employees ordinarily had unrestricted access to this area out-
side the private offices.
Early in its organizing campaign Local 5 established an em-
ployee committee that included workers from various Hotel
departments. The committee members assisted Local 5 with its
organizational activities at the property and, following recogni-
tion, they served as typical union stewards.
On November 17, Local 5 and the Hotel agreed to meet for
their first collective-bargaining session on December 14.
Shortly afterward, Local 5 distributed flyers in the employee
dining room and the locker rooms (also used by the hotel’s
managers and supervisors) announcing the start of negotiations
and introducing the union committee pictorially to the Hotel’s
workers. Housekeeping department workers pictured on this
flyer included Juliana Alcaraz, Florence Miguel, Audrey Jor-
dan-Gecain, Jovelyn Gecain, Maria Cabusas, Fapiana Esa, and
Fapiki Esa.
As found below, I have concluded that the General Counsel
has met his burden of proving the allegations of the complaint
in this case. Specifically I find that the credible evidence
demonstrates that Clemente unlawfully fired Alcaraz for her
protected concerted activity. I further find that the Hotel later
barred Alcaraz unlawfully from the property after Local 5 des-
ignated her as an agent to service the unit employees. In addi-
tion, the evidence shows that Clemente coercively questioned
workers in the housekeeping department about their protected
activities and the protected activities of other employees, and
that she denied an employee’s timely request for Weingarten
representation at an investigatory interview. In making these
findings, I have concluded, for a variety of reasons noted be-
low, that various assertions made by Clemente, the key defense
witness, are simply not credible. Hence, I have relied on her
testimony only where it is not contradicted by other more cred-
ible witnesses. The credible evidence strongly suggests that
Clemente felt that the employees’ choice to be represented by a
union amounted to a personal affront because of her superior
managerial skills.
B. Facts Relevant to the Unfair Labor Practice Allegations
The Hotel employs a housekeeping coordinator (a unit posi-
tion) on each shift. Clemente hired Wilma Riveral as the se-
cond shift coordinator (2–10 p.m.) on October 13. About a
week after Riveral’s hire, Clemente began questioning Riveral
about her union sympathies on several separate occasions.
Clemente asked Riveral if she was “anti-union or [was on] their
side.” On the first occasion Clemente probed her union sympa-
thies, Riveral merely smiled and when pressed further she told
Clemente that the Union did not matter so long as she had the
job.
In early October, Local 5 Organizer Jansen learned that the
Hotel hired Clemente as the new department manager. Around
that time, he visited the outer area of the housekeeping depart-
ment on nearly a daily basis to view the work schedules and
any alterations that might have been made to it. On one such
occasion, Clemente approached him, introduced herself, and
asked who he was. After Jansen identified himself as a union
organizer assigned to the property, Clemente invited him into
her office where the two had what Jansen described as a pleas-
ant conversation that lasted about 5 minutes.
After meeting Clemente, Jansen continued to visit the house-
keeping department until one day in early November when she
challenged him about being in the office without her prior per-
mission. Jansen responded by saying he did not need her per-
mission to check the schedule. Clemente accused him of being
rude and arrogant, and instructed Jenie Amoguis, the first shift
coordinator, to call security. A hotel security officer soon ar-
rived and asked Jansen what he was doing to which Jansen
replied that he was simply there to check the work schedule.
Amoguis overheard Clemente later request that the security
officer call the police but there is no indication that anyone
connected with the Hotel ever summoned the police. Shortly
thereafter, Jansen left the housekeeping office and went about
his business.
Later that day, Clemente spoke with Riveral about her inci-
dent with Jansen that morning. During this exchange, Clemen-
te disparaged Amoguis because she had not “saved” her from
the union representative. Clemente queried Riveral as to
whether she would have saved her from the union agent had she
been there but Riveral did not respond. Clemente then instruct-
ed Riveral to prepare a sign saying that the outer door to the
housekeeping department office must always remain closed.
For the next several weeks, the door to the housekeeping de-
partment remained locked. As a result, Jansen no longer had
access to the office and the employee schedules posted there.
Jansen prepared the union flyer for distribution shortly after
Thanksgiving Day that announced the start of negotiations and
that pictured the workers designated to serve on the Union’s
bargaining committee. He provided copies to the committee
members for distribution in the employee dining room and the
locker rooms. Later, Clemente told Riveral that the employee-
committee members pictured on the Union’s flyer were “prob-
lems and headaches.”
Florence Miguel works at the Hotel as a full-time turndown
room attendant. She began working there when Marriott oper-
ated the property. Miguel became and remained a member of
the union’s committee and served on its negotiating team. Mi-
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
guel’s husband, Ray, also worked at the hotel during this rele-
vant period.
Miguel saw copies of the Union’s flyer with her picture,
among others, in the employee dining room and the women’s
locker room in late November or early December. After the
flyer’s distribution, Clemente confronted Miguel in the locker
room in the presence of others seeking an explanation as to why
her picture appeared in it and why the employees needed a
union. Miguel told Clemente the employees needed a union for
job security. Clemente scoffed at her response. She told Mi-
guel “[Y]ou guys don’t need a union because I’m a good man-
ager.” Miguel did not respond. Later, Clemente told house-
keeping coordinator Wilma Riveral that she should have never
hired Ray Miguel because his wife “is very strong union.”
Jovelyn (Jovy) Gecain works as a housekeeper in the Hotel’s
public area. She also serves on the Union’s committee. In late
November or early December, Clemente summoned Gecain to
her office over the handheld radio Gecain carries. When
Gecain went to the office, Clemente conducted a closed-door
meeting with her. Clemente told Gecain that she wanted to get
to know her. Among the inquiries Clemente made of Gecain
was whether she was “union” and whether she supported the
“union.” Gecain responded affirmatively to both questions.
The Hotel’s “Team Member Handbook” (Handbook) lists
gossiping as item no. 49 on its list of 57 “House Rules” as
“conduct that must be avoided.” (GC Exh. 6, pp. 23–26.) The
Handbook warns that the failure “to comply with any rules and
policies will result in disciplinary action up to and including
termination.” (Id., p. 23.)
Soon after her appointment, Clemente instituted a practice of
conducting two “briefings” per day for the purpose of providing
the staff with updated instructions and directions. These brief-
ings normally lasted about 15 minutes. The morning briefing
began at 8:30 a.m. and the afternoon briefing began at 5 p.m.
At several of the briefings in the latter part of November,
Clemente admonished employees for gossiping. Some evi-
dence suggests that her admonishments really grew out of
Clemente’s concern about employees talking to “outsiders.”
Other evidence indicates younger workers complained of older
workers gossiping on the floors during worktime. No allega-
tion claims that Clemente sought to interfere with Section 7
activities by lecturing employees against gossiping. In discuss-
ing this topic at one or more of the briefings, Clemente made
reference to “cutting tongues,” or “cutting the tongue,” an idi-
omatic expression a Filipino worker had used when she brought
up the topic of gossiping early on. Despite the fact that a large
majority of the housekeepers are Filipinos, some, including
Juliana Alcaraz, did not understand this idiom.
Alcaraz worked with Miguel on the afternoon shift as a turn-
down attendant.4 Along with Miguel, Alcaraz became very
active in Local 5’s organizing effort. She attended union meet-
ings, distributed literature, promoted the Local 5 to other work-
ers at the Hotel as well as at other properties, and soon became
4 From the start of their shifts at 1 p.m. until the dinner break at 4:30
p.m., Alcaraz and Miguel worked as regular room cleaners. After the
dinner break and Clemente’s afternoon briefing, their work shifted to
that of a turndown attendant until the end of their day at 9 p.m.
a member of the Union’s committee at the Hotel. Her picture
appeared in the Union’s flyer widely distributed around the
Hotel after Thanksgiving.
Miguel and several of the regular room cleaners with whom
Alcaraz spoke seemed thoroughly confused about the “cutting
tongue” idom Clemente used in connection with her admoni-
tions against gossiping. Several of the employees encouraged
Alcaraz to ask Clemente for an explanation of its meaning but
Alcaraz feared doing so. At the urging of some fellow workers,
Alcaraz finally agreed that she would ask Clemente about the
meaning of “cutting tongues” at the upcoming mandatory meet-
ing for the housekeeping employees.
Clemente scheduled the departmental meeting for December
8 from 3 to 5 p.m. Notice of the meeting had been posted well
in advance in the housekeeping office and Clemente mentioned
it several times at the daily briefings. In planning the meeting,
Clemente had arranged for Vital Calamur, the Hotel’s general
manager (also referred to by employees as “V” or Mr. V), and
Jodi Ching, the Hotel’s HR manager, to speak.5 In addition,
she arranged presentations by an Ecolab trainer about the clean-
ing chemicals the housekeepers regularly used, and by an expe-
rienced housekeeper about the proper towel-folding procedure.
The December 8 meeting was held in the outer area of the
housekeeping department, an area witnesses estimated to be
from 200 to 350 square feet. Approximately 60 employees
attended. Clemente set a table up in the front of the room and
rows of chairs facing the table as well as along a couple of the
walls. The witnesses described the atmosphere as very crowd-
ed and quite warm.
For most of the meeting, Clemente stood or sat in the front of
the room to make her own presentations or to introduce the
speakers. Alcaraz arrived slightly late for the meeting and
stood along the back wall throughout most of the meeting.
Toward the end of the meeting, Clemente called on the depart-
ment supervisors to acknowledge the employees’ good work.
After the supervisors finished, Clemente asked for questions or
comments from the employees. The noise level in the room
increased considerably as several workers sought recognition to
speak and others spoke up without being recognized or to voice
support for comments made by others.
Alcaraz raised her hand seeking a turn to speak. When rec-
ognized, Alcaraz asked what Clemente meant when she spoke
of gossiping and “cutting tongue” at the daily briefings. She
added that when people speak the truth, it is not gossip. Sever-
al of the workers nodded or spoke of their agreement with Al-
caraz’ comment. Clemente did not respond to Alcaraz. In-
stead, she moved on asking if any others had comments or
questions.6
5 As it turned out, Calamur could not attend.
6 I base my findings regarding Alcaraz’ conduct during this meet
largely on the testimony of Audrey Gecain. Clemente denied that she
even opened the meeting for employee comments but I find this claim
unworthy of belief because of contrary testimony from several employ-
ee witnesses and the evidence that several other employees actually
spoke. Unfortunately, Alcaraz, a native Tagalog speaker, chose to
testify using her very limited English language skills. As a result, I
found significant portions of her account about this meeting simply
incomprehensible.

MODERN HONOLULU 235
Alcaraz raised her hand again, saying that she had not fin-
ished, that she had more to say. Someone around Alcaraz, a
very slight woman, pushed her forward into the room. Clemen-
te told her that if she still had more concerns, she should come
to her office so they could discuss them further. Regardless,
Alcaraz persisted in her request to speak again. When Clement
said she needed to give others a chance to talk, Alcaraz blurted
out, “[W]hat is this, Communist? We can't speak anymore?”
By this time, Alcaraz was close to Audrey Jordan-Gecain
(Gecain or Audrey Gecain), the linen coordinator, and Clemen-
te stood close by in the front of the room near the supervisors.
Gecain caught Clemente’s attention to obtain Clemente’s per-
mission to leave the room because she felt warm and uncom-
fortable. When Clemente nodded she could go, Gecain took
Alcaraz by the arm attempting to take her along because, ac-
cording to Gecain, no one was listening to her. But others sup-
ported Alcaraz’ attempt to speak further. Arnold, the house-
man, told Gecain, “Let Juliana speak.” Gecain finally aban-
doned her attempt to leave and sat down.
Clemente, who had approached somewhat closer to Alcaraz
and Gecain, finally relented and asked Alcaraz what she wanted
to say about gossiping. Alcaraz responded saying that workers
were being accused of gossiping. An exchange followed be-
tween the two that lead Clemente to insist that Alcaraz identify
who had been gossiping. At first, Alcaraz refused saying she
preferred not to name anyone. Clemente, however, insisted that
Alcaraz tell her who had been gossiping.7 Finally, Alcaraz
pointed her finger at Clemente and said that she had been gos-
siping. There is no evidence that Clemente responded to Al-
caraz’ accusation or that anything further happened between
them at that time.
Clemente recognized several other employees who sought to
speak about their workplace concerns. One, Adoracion Padilla,
asked Clemente why the Filipino workers were reprimanded
when they spoke around the workplace in their native language
but others who spoke different languages were not. When
Clemente asked Bogdanca Spiric, the housekeeping department
manager who succeeded Clemente in that position, Spiric told
her that the Filipino employees had never been prohibited be-
fore from talking among themselves in their native language.
Another unidentified worker accused Clemente of showing
favoritism toward certain workers. Florence Miguel told
Clemente that she treated the workers like kids. Another work-
er identified only as Arnold, a houseman, accused Clemente of
staging the meeting because they were union. Throughout
these exchanges, the noise level in the room steadily increased.
7 Wilma Riveral credibly testified that Clemente used a very aggres-
sive tone of voice when she demanded that Alcaraz identify the gossip-
ers to whom she referred. Clemente’s internal memo supports the
claims of Alcaraz and Riveral that Clemente demanded that Alcaraz
disclose specific names. Thus, the memo states: “When Juliana was
asked who were those employees that she had mentioned gossiping and
unhappy she couldn't provide their names but instead she responded
disrespectfully, “It's YOU.” I was shocked myself but I didn't give her
the opportunity to see me being affected by it. I stood still and calmly
thank[ed] everyone for all their hard work and that all I ask is to sup-
port the leadership and authority in Housekeeping and treat everyone
with respect and stop gossiping.” (GC Exh. 21.) [Emphasis supplied]
Later, Clemente described several of these workers as Alcaraz’
“support group.”8 (GC Exh. 21.)
The meeting finally ended around 5:30 p.m. when Ray Mi-
guel asked that Clemente excuse his wife, Florence, and him-
self. Clemente agreed but when Florence stood up she fainted
and collapsed to the floor. A near-panic atmosphere erupted.
Several employees began running from the room while others
shouted for 911 emergency assistance. Ultimately, an EMT
team arrived and transported Florence Miguel to a hospital.
After the meeting, Alcaraz returned to her usual work as a
turndown attendant. At the end of her shift, she went to the
housekeeping office where she met Clemente by chance.
Clemente asked her to work the next day at an overtime rate
because Alcaraz ordinarily did not work on Saturday. Alcaraz
agreed and offered to work Sunday also but Clemente told her
she would not be needed that added day.9
Meanwhile, Clemente said that she offered her resignation to
the hotel manager following the meeting because she became
so distraught over losing control of the proceeding but Calamur
refused the offer. Sometime thereafter, Clemente decided that
she would terminate Alcaraz. Clemente prepared the termina-
tion paperwork over the weekend and presented it to Human
Resources Manager Ching on Monday, December 12.10 At
some point Clemente also prepared an internal memorandum
containing her account of the events at the December 8 meeting
that the Company later produced to the Union pursuant to its
request in January. This document does not specify when she
prepared it. (GC Exh. 21.)
On Monday, December 12, Clemente intercepted Alcaraz be-
fore she started work and took her to Ching’s office in the hu-
man resources department. There, in Ching’s presence,
Clemente read the termination notice to Alcaraz because she
did not have her glasses. In sum, the termination form Clemen-
te prepared accused Alcaraz, who had never received any prior
discipline, of discourteousness, insubordination, bullying be-
havior, and gossiping at the December 8 meeting. (GC Exh. 2.)
After Clemente finished reading it, she asked Alcaraz to sign
the form but she refused.11
Alcaraz implored Ching to intervene to prevent her termina-
tion. However, Ching told Alcaraz there was nothing that she
could do because Clemente made the decision to terminate her.
After Alcaraz requested and obtained a copy of her discharge
8 Clemente included Spiric, the department manager, as one of Al-
caraz’ supporters in her internal memo. (GC Exh. 21.) Presumably,
Spiric gained this distinction by failing to support the policy that pro-
hibited workers from speaking Tagalog among themselves.
9 Clemente claims that she never saw Alcaraz again following the
mandatory meeting until Monday, December 12, when she terminated
Alcaraz. I do not credit this claim. Respondent did not dispute that
Alcaraz worked overtime on Saturday, her regular day off, and provid-
ed no alternate explanation as to how Alcaraz came to be working on
that Saturday.
10 Ching reviews all disciplinary actions to ensure consistency and
compliance with the Respondent’s policies. However, she did not
independently investigate the basis for Alcaraz’ discharge; instead, this
termination was based solely on Clemente’s decision.
11 At some point, during the meeting, Alcaraz sought to have a repre-
sentative present. Clemente claimed that she did not know what Al-
caraz meant by her request.

236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice, Clemente called the security department to escort Al-
caraz while she cleaned out her locker and left.
A day or two following Alcaraz’ termination, Clemente di-
rected the circulation of a petition among the housekeeping
department employees expressing opposition to any attempt by
Alcaraz to be reinstated to her job at the Hotel. The petition,
dated December 14th, stated in part: “This petition letter
should serve as a notice stating that we are not comfortable
bringing back Juliana Alcaraz in our housekeeping department.
We understand that Juliana Alcaraz may make an attempt to be
reinstated to our department but in some reason we do not fore-
see a positive impact in our department.” (GC Exh. 3.)
Riveral first saw the petition a day after Alcaraz’ termina-
tion. According to her credible account, Clemente prodded
Florimel Pasqua, the morning housekeeping coordinator at the
time, to give the petition to Riveral when she came to work that
day and they both asked her to sign it. Riveral disregarded their
requests at the time but Pasqua gave the petition back to Riveral
when she was about to leave work. Later, Riveral gave the
petition to Miriam Cantora, one of the room attendants.
Over the course of the day, Clemente asked Riveral several
times whether any employees had signed the petition. After a
few hours, Cantora returned the petition to Riveral with several
signatures on it. Riveral then returned the petition to Clemente.
Clemente kept the petition in her office. She also instructed
Riveral to solicit the signatures from any of the housekeepers
who had not signed it other than the “seven angry birds.”12 In
addition, Clemente even asked a couple of employees in other
departments, one in security and the other in engineering, to
sign the petition. Riveral recalled witnessing two employees
sign the petition in Clemente’s office. Eventually, Riveral her-
self signed the petition twice. She claimed that she did so be-
cause she feared for her job. Eventually, according to Clemen-
te, whose account I do not believe, a group of employees gave
the petition to the hotel manager.
Pursuant to the agreement reached in November, the first
bargaining session was held on December 14. The union
agents servicing the property invited employees to attend the
session held at the Hotel but no claim is made that Local 5 and
the Hotel had agreed that on-duty employees could attend.
Room setup arrangements show a table provided for the parties’
negotiators and chairs arranged along the wall for others per-
mitted to attend. The Local 5 negotiators consisted of six or
seven Local 5 officials and unit employees. There were three
Hotel negotiators, two of whom included the Hotel manager
and its human resources manager.
Around the time the session was scheduled to begin, Riveral
asked Clemente for permission to attend. Clemente refused.
Instead, she said that Supervisor Raymond Texeria, who was
present at the time, would be attending the bargaining session.
Riveral overheard Clemente instruct Texeria to take notes of
what went on at the session and who attended. Clemente in-
structed Riveral to get Texeria a notebook to use for this pur-
12 Riveral identified the seven angry birds as the “Russian,” Padilla,
Amy Chow, Jenie Amoguis, Audrey Jordan-Gecain, Jovy Gecain, and
Florence Miguel. The “Russian” was never further identified. Presum-
ably, “Padilla” refers to Andoracion Padilla.
pose.
Amy Chow, a seamstress and a unit employee, attended the
negotiations as an observer. When she saw Texeria arrive at
the session, she approached him and asked what he was doing
there. Texeria told Chow that he was taking down the names of
the people attending the bargaining session. Later that evening,
Riveral saw Texeria return to the housekeeping department
office and enter Clemente’s office, purportedly locking the door
behind him.
Apart from Riveral’s credible account, no other reliable ex-
planation was provided as to what may have occurred inside the
housekeeping offices before or after the December 14 bargain-
ing session. Texeria did not testify and Clemente’s following
testimony provides yet another self-serving, contradictory, and
improbable account that I do not credit:

Q. Do you remember there was a union negotiating
meeting on December 14, 2011, at the hotel?
A. Yes.
Q. Did you attend that meeting?
A. No.
Q. Do you know whether any of your supervisors at-
tended the meeting?
A. No.
Q. Do you know whether any of your supervisors was
at the meeting before it started?
A. No.
Q. Do you know Ray Texeria?
A. Yes.
Q. Do you know whether he was at that meeting?
A. I don't know if he was in that meeting, but Ray
Texeria is a public area supervisor, and the meeting that
was held at the Modern Honolulu is considered public area
location.
Q. What time did the public area attendants start their
work?
A. From 2:00 from 10:00.
Q. To your knowledge, was there any agreement at
that time between the hotel and the Union about whether
on-duty employees would be allowed to leave work and go
attend the meeting?
A. No, there was not.
Q. Did any of your supervisors tell you that they had
attended the meeting on December 14?
A. Ray Texeria had asked me, Emma, I heard that
Jovy was in the meeting, but she called in sick today. But I
just want to make sure if she's there and check also the
public areas in case they in a meeting and we have no re-
placement so I would be prepared.
And to me that's his area, and he has the responsibility
to supervise to make sure if there's not enough people
around the public area then we can call the replacement.
So I said, it's your call.
Q. Did he tell you whether he was going to go over to
the meeting area to see if Jovy was in the meeting or not?
A. Yes.
Q. And did you hear back from him later what he
found out, if anything?

MODERN HONOLULU 237
A. Yes, he came back and said that Jovy, he confirmed
that Jovy was there. And I said, well, do you have a re-
placement for Jovy? At that time he told me that I think
we're good, yeah.

(Tr. 479–480; emphasis added.)13
On December 15, the Union arranged for a flyer to be dis-
tributed in the Hotel’s employee dining and locker rooms. It
contained a grainy black-and-white photo taken at the Decem-
ber 14 bargaining session along with general information about
the bargaining, and a notice that the next session would be on
January 17. (GC Exh. 8.) A copy of the flyer was at the dining
table where Chow and Clemente ate lunch together that day.
During their lunch, Clemente asked Chow to identify the em-
ployees who appeared in the blurred picture on the flyer. Chow
complied with Clemente’s request using her memory of where
people sat.14
Following her termination, Alcaraz attended the bargaining
sessions held at the Hotel on December 14 and January 17.
(GC Exh. 13.) Although the Employer apparently objected to
the size of the Union’s committee at the January 17 session, no
evidence shows that it specifically objected to Alcaraz’ pres-
ence on its premises at either occasion.
In March, the Union designated Alcaraz as a “Union Organ-
izer.” On March 28, the Union sent a notice to the Hotel’s
chief negotiator that it had designated five individuals, includ-
ing Alcaraz, as its agents “to provide service to its membership
effective immediately.” The letter requested that the negotiator
inform “all appropriate personnel of their presence at your
property.” (GC Exh. 4.) The Hotel’s negotiator responded in
an emailed letter on the same day. In pertinent part, the re-
sponse stated:

Given the circumstances of Ms. Alcaraz’s termination for her
insubordinate assault of the Director of Housekeeping, the
Employer is not in Agreement with allowing Ms. Alcaraz in-
side the hotel. The Employer’s security personnel will be ad-
vised to deny her access to the premises and will call the
proper authorities in the event that she attempts to enter the in-
terior of the Hotel.

(GC Exh. 9; emphasis added.)
On April 1, the Union emailed a letter replying to the Re-
spondent characterizing the claim that Alcaraz had assaulted
Clemente as defamatory and insisting that she should be grant-
ed access. (GC Exh. 10.) Beginning in early May and continu-
ing through the remainder of the month, the Hotel’s chief nego-
13 During her testimony, Jovy Gecain said that she learned of the
December 8 mandatory meeting, among other ways, at the 8:30 a.m.
briefing. Hence, it is fair to infer, absent some evidence to the contrary
of which there is none, that Jovy Gecain was a day-shift employee and
that her shift would have ended at 4:30 p.m. Respondent produced no
business records to support Clemente’s claim contradicting the infer-
ence warranted by Jovy Gecain’s testimony, or showing that Jovy
Gecain took sick leave that day. Texeria did not testify at all nor was
his absence explained.
14 Clemente denied Chow’s claim that she quizzed her concerning
the identity of the people depicted in the flyer photograph. According
to Clemente, she never has lunch with a single employee, only groups
of employees. I do not credit Clemente’s denial or explanation.
tiator, in series of correspondence and messages exchanged
with Local 5 in an effort to schedule a bargaining session, re-
confirmed that Alcaraz would not be granted access to the
property for any session scheduled to be held at the Hotel. In
all of this correspondence, the Employer’s negotiator held fast
to the position even though Local 5 pointed out that Alcaraz
had attended two bargaining sessions held at the Hotel follow-
ing her termination. For its part, the Employer made clear that
it would agree to meet and negotiate at other locations, such as
the Union’s office or an office of the Federal Mediation and
Conciliation Service, if Local 5 insisted on Alcaraz’ presence.
(GC Exhs. 11–14.)
Jenie Amoguis, the morning-shift housekeeping coordinator
who began working in that position while the hotel was operat-
ed by Marriott, received two disciplinary actions from Clemen-
te in 2012, one in May and the other in June. She received the
discipline at issue on Tuesday, June 12, 2012. That morning at
about 9 a.m. room attendant Elifer Cabudol, a recently hired
worker, complained to Clemente that Amoguis unfairly
switched the room assignments between herself and a more
senior room attendant on two consecutive days so as to burden
Cabudol with extra work.
Clemente immediately summoned Department Manager
Alex Teng and Amoguis into the office where she questioned
Amoguis about the schedule changes and, in a raised voice,
accused her of giving the more difficult work to the room at-
tendants she did not like. Amoguis apologized to Cabudol and
attempted to explain to Clemente that she had assigned the
rooms based on a seniority system that she had learned when
she first started at the hotel during the Marriott regime.
Clemente chastised Amoguis for using that system and contin-
ued to accuse her of playing favorites. With that, Amoguis put
her hand up and said, “[S]top Emma, I need someone to be with
me.” Clemente summarily dismissed the request saying,
“Why? Is Elifer not a witness? Is Alex not a witness?”15 Then
Clemente continued to press Amoguis to explain why she had
switched the room assignments.
Later in the afternoon, Amoguis learned from Teng that she
would receive a written warning because of Cabudol’s com-
plaint. She told Teng that she wanted Audrey Gecain to be
present when it occurred. When Clemente called Amoguis and
Teng to her office to present the written warning, Teng told
Clemente about Amoguis’ request to have Gecain present but
Clemente denied the request. Amoguis then stated that she
wanted someone to be with her. Clemente again denied her
request indicating the meeting was not an investigation but
rather a write-up. In addition, Clemente told Amoguis that
Gecain was on company time and that she was working. Teng
then read the warning to Amoguis. She refused their request to
sign it so Teng signed it for her. Later, Teng informed Amo-
guis that Clemente wanted Teng to make a statement asserting
that Amoguis did not ask for representation and that he did not
intend to lie for her. Teng did not testify nor was his absence
15 Amoguis claimed that she wanted the assistance of linen coordina-
tor Audrey Gecain, who is one of the Local 5 committee persons, but
the evidence does not show that she made a specific request at this time
to have Gecain called.

238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
explained.16
C. Further Findings, Analysis, and Conclusions
1. Complaint paragraphs 8(a), (c), and (d):
the interrogation allegations
The General Counsel argues that Clemente’s questioning of
Miguel, Gecain, and Chow violated Section 8(a)(1).17 The
General Counsel does not allege that similar questioning of
Wilma Riveral by Clemente violated the Act. Instead, counsel
for the General Counsel represented at the hearing that he had
only adduced the evidence pertaining to the questioning of
Riveral in order to show Respondent’s animus. Based on this
representation, Respondent’s counsel withdrew his objection to
Riveral’s testimony about being questioned by Clemente and
did not further pursue the issue. Hence, I find that this issue
has not been sufficiently litigated to support an unfair labor
practice finding as to the questioning of Riveral.
Interrogation of employees violates Section 8(a)(1) if, under
all the circumstances, it reasonably “tends to restrain, coerce, or
interfere with rights guaranteed by the Act.” Rossmore House,
269 NLRB 1176 (1984), affd. sub nom. Hotel Employees &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). In making this determination, the Board regards it
appropriate to consider the analytical factors first set out in
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Medcare
Associates, Inc., 330 NLRB 935, 939 (2000). Succinctly stated,
the Bourne factors include: (1) the background of employer
hostility toward protected employee activities; (2) any indica-
tions that the interrogator sought information for the purpose of
taking adverse action against individual employees; (3) the
relative position of the questioner in the company’s hierarchy;
(4) the place and method of interrogation; and (5) the truthful-
ness of any employee response. However, determining whether
employee questioning violates the Act does not require strict
evaluation of each Bourne factor. 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 question-
ing, but rather useful indicia that serve as a starting point for
assessing the ‘totality of the circumstance.’” Timsco Inc. v.
NLRB, 819 F.2d 1173, 1178 (D.C. Cir. 1987).
Certain aspects of the Bourne factors are present in each of
these three episodes alleged unlawful here; others are not. Pre-
sent in all three is the fact that Clemente, the highest-ranking
16 The General Counsel subpoenaed the statement that Teng provid-
ed about these June 12 events but Respondent petitioned to quash that
statement and others of a similar nature. I granted Respondent’s peti-
tion finding the Teng statement to be attorney work product based on
the representation of Respondent’s counsel that it had been prepared
and submitted through Hotel channels at his specific direction.
17 Sec. 8(a)(1) prohibits employer conduct that interferes with, re-
strains, or coerces employees “in the exercise of the rights guaranteed
in Section 7.” In part, Sec. 7 provides that employees “have the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.” Sec. 7 also guarantees employ-
ees the right to refrain from these activities but this case is not about the
right to refrain from Sec. 7 activities.
management official in the housekeeping department, conduct-
ed all of the questioning in issue.18 Also, present in all three
instances is the fact that each of the employees answered
Clemente’s inquiries truthfully. I find that the first of these two
particular factors should be accorded far more weight than the
latter. Based on my observations of the witnesses in this case,
there can be little mistake about the significant sophistication
gap that existed between Clemente and the employees in her
department, including those she questioned. Even though the
employees here answered Clemente’s probing questions hon-
estly, I have concluded that these employees, whether they
knew it or not, had a justifiable reason to fear her inquiries,
particularly Miguel and those who may have overheard this
exchange in the locker room.
Clemente’s questioning of Miguel exhibited pointed hostility
toward employee support for union representation, which she
personalized as an affront to her own position and ability. In
this particular instance, Clemente pressed Miguel, a member of
the union’s committee, in the presence of others to justify em-
ployee support for the union and then reproached her for the
answer provided, i.e., to secure employee job security. In sum,
Clemente appeared to be using the occasion to make the point
to Miguel and others nearby that, as a “good manager” she felt
offended that employees had chosen union representation. I
find her conduct on this occasion would restrain and coerce any
reasonable employee such as Miguel, who actively supported
unionization, and others who might have overheard and ob-
served Clemente on this occasion.
Likewise, I have reached a similar conclusion with respect to
the Gecain interrogation. In this instance, Clemente summoned
Gecain to her office during worktime for a one-on-one meeting,
ostensibly to get to know her, but which eventually led to prob-
ing this employee’s union sympathies while alone in the locus
of departmental authority. I have concluded that a reasonable
employee would be restrained and coerced by Clemente’s prob-
ing questions about a private matter in such circumstances.
This is especially true where, as here, there is no apparent justi-
fication for the inquiry as well as other evidence showing
Clemente’s hostility toward employee support for the union.
The questioning of Chow about the specific identity of the
employees who chose to attend the bargaining session on De-
cember 14 followed immediately on the heels of her direction
to Supervisor Texeria to go to the meeting and take note of the
employees present at that session. I find the two directions
reflect a consistent pattern on the part of Clemente to identify
the employees interested in the ongoing union activities.
In sum, I have concluded that Clemente’s questioning in all
three instances possessed a coercive quality sufficient to violate
Section 8(a)(1) as alleged in complaint paragraphs 8(a), (c), and
(d).
2. Complaint paragraphs 9(a) and (b):
the surveillance allegations
Complaint paragraph 9(a) alleges that Clemente and Texeria
engaged in surveillance of employees engaged in union activi-
18 Clemente flatly denied that she questioned these three employees
in the manner shown by their testimony. I do not credit her denials.

MODERN HONOLULU 239
ties. Complaint paragraph 9(b) alleges that Clemente and
Texeria created an impression among employees that their un-
ion activities were under surveillance by Respondent.
Where, as here, employees openly engage in protected ac-
tivities on the employer’s premises, management officials may
lawfully observe those activities but they may not do anything
out of the ordinary to keep employee protected activities under
watch. Albertsons v. NLRB, 161 F.3d 1231, 1238 (10th Cir.
1998). See also Broadway, 267 NLRB 385, 399–402 (1983),
and the cases cited there. Statements by employer agents caus-
ing employees to reasonably assume that their protected activi-
ties are under surveillance violate the Act. Tres Estrellas de
Oro, 329 NLRB 50, 51 (1999); Electro-Voice, Inc., 320 NLRB
1094 (1996). Certain employer conduct may amount to unlaw-
ful surveillance and create the impression of surveillance within
the same set of circumstances. Seton Co., 332 NLRB 979, 981
(2000).
Respondent, relying solely on Clemente’s testimony, claims
that Texeria went to the December 14 negotiations session, held
at the Hotel, for a legitimate purpose, i.e., “to see if Jovy
Gecain and any of his other employees were there so he would
know if he needed to get additional employees to ensure cover-
age.” (R. Br., p. 55.) I reject that contention.
In this instance, Clemente’s testimony, which I regard as
generally suspect anyway, is unsupported by other evidence
obviously within Respondent’s control. This session began at 5
p.m. Although Clemente claimed Jovy Gecain and other public
area attendants worked from 2 to 10 p.m., Jovy Gecain’s testi-
mony provides a strong basis for inferring that she worked the
earlier shift as she mentioned her attendance at Clemente’s 8:30
a.m. briefings held for the first-shift workers who normally
finish their workday at 4:30 p.m. Respondent’s business rec-
ords would obviously resolve any possible doubts about Jovy
Gecain’s normal work shift but it chose not to address this po-
tential contradiction with its records.
In addition, Respondent chose not to use its business records
to support Clemente’s hearsay assertion that Texeria told her
Jovy Gecain called in sick on December 14. Not only did Re-
spondent fail to provide evidentiary support for this assertion
from its business records, it also failed to call Texeria as a wit-
ness to support any of Clemente’s testimony. In these circum-
stances, I conclude that Respondent’s assertions about the legit-
imacy of Texeria’s December 14 mission at the bargaining
session lacks credible support.
By contrast, General Counsel witnesses Riveral and Chow
provided accounts that are, by and large, mutually corrobora-
tive. Riveral said she overheard Clemente, who had no known
assignment from the Hotel management related to the bargain-
ing, tell Texeria to take notes at the bargaining session about
who attended and what occurred. To aid him in his assignment,
Clemente instructed Riveral to get Texeria a notebook. By
Chow’s account, Texeria told her when he arrived at the nego-
tiating session that he came because Clemente instructed him to
take note of who attended.
Both of these employee accounts provide an ample basis for
concluding, as I have, that Clemente assigned Texeria to en-
gage in surveillance. In addition, they provide an ample basis
to conclude that Clemente’s instruction to Texeria in the pres-
ence of Riveral, and Texeria’s statement to Chow would tend to
create an impression of surveillance in the minds of these two
employees. Based on the credible employee accounts, I have
concluded that the General Counsel has proven both of the
surveillance allegations by a preponderance of the evidence.
3. Complaint paragraphs 11 and 12:
the Alcaraz allegations
a. Alcaraz’ termination
Complaint paragraph 11 alleges that Respondent terminated
Alcaraz on December 12 because of her protected concerted
activities at the December 8 mandatory meeting, and because of
her membership in Local 5 and activities on behalf of that labor
organization. Respondent argues that even if Alcaraz engaged
in protected activities at the December 8 meeting, she lost the
protection of the Act by engaging in insubordinate, disruptive
conduct during the meeting that warranted Clemente’s dis-
charge action.
Where an employer takes adverse action against an employ-
ee for alleged misconduct occurring in the course of the em-
ployee’s protected activities, the employer has the burden of
showing that it held an honest belief that the employee engaged
in serious misconduct. NLRB v. Burnup & Sims, Inc., 379 U.S.
21, 23 (1964). If the employer meets that burden, then the
General Counsel must affirmatively show that the alleged mis-
conduct did not occur in order to establish that the employer
violated the Act. Pepsi-Cola Co., 330 NLRB 474 (2000), cit-
ing Rubin Bros. Footwear, Inc., 99 NLRB 610 (1952).
In this case, I find that Alcaraz engaged in protected activity
at the December 8 meeting by raising the question of gossip
and the meaning of the cutting tongues metaphor used several
times by Clemente at the daily briefings. In addition to the
evidence showing that she had several discussions about this
matter with other employees after Clemente addressed it at the
daily briefings, the evidence also shows that Alcaraz’ fellow
workers encouraged her to take it up at the December 8 meet-
ing. When Clemente failed to respond to Alcaraz’ initial re-
marks at the meeting with anything other than asking her to
take the matter up later in private, employees at the meeting
supported Alcaraz’ effort to speak further about the subject at
that time. As the subject matter concerned an issue addressed
by Respondent’s rules and Clemente’s own prior admonitions, I
find Alcaraz was engaged in activity protected by Section 7
when she attempted to speak about the gossiping topic at the
December 8 meeting. Kiewit Power Constructors Co., 355
NLRB 708, enf. denied 652 F.3d 22 (D.C. Cir. 2011).
However, even though Section 7 protects the right of em-
ployees to engage in concerted activities, the Board recognizes
that this does not mean that an employee is free to engage in an
activity with impunity. Stanford N.Y., LLC, 344 NLRB 558
(2005), citing NLRB v. City Disposal Systems, 465 U.S. 822,
837 (1984).
When an employee is discharged for conduct that is part of
the res gestae of protected concerted activities, the pertinent
question is whether the conduct is sufficiently egregious to
remove it from the protection of the Act. Stanford N.Y., supra,
citing Aluminum Co. of America, 338 NLRB 20 (2002). How
egregious is “sufficiently egregious”? In the following portion
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of its decision in St. Margaret Mercy Healthcare Centers, 350
NLRB 203, 204–205 (2007), enfd. 519 F.3d 373 (7th Cir.
2008), the Board cited with approval this strict test:

As the Seventh Circuit explained in Dreis & Krump Mfg. v.
NLRB, 544 F.2d 320 (7th Cir. 1976), “the standard for deter-
mining whether specified conduct is removed from the pro-
tections of the Act [is] as articulated by the Board: communi-
cations occurring during the course of otherwise protected ac-
tivity remain likewise protected unless found to be ‘so violent
or of such serious character as to render the employee unfit
for further service.’” Id. at 329.

In making this determination, the Board examines the following
factors: (1) the place of the discussion; (2) the subject matter of
the discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an em-
ployer’s unfair labor practice. Atlantic Steel Co., 245 NLRB
814, 816 (1979).
The circumstances that lead to Alcaraz’ discharge occurred
in the department office near the end of the December 8 de-
partmental meeting and well after the instructional phrase of the
meeting had concluded. Respondent claims that Clemente
never opened the meeting for employee comments; employee
witnesses dispute that claim. Because I regard Clemente’s
credibility highly suspect on virtually all contested issues, and
because of the credible evidence showing that other employees
concurrently voiced similar, if not more hostile, complaints
about Clemente’s management style,19 I credit the employee
claims that Clemente solicited employee comments at this
meeting.20 As Clemente sought employee comments about
their concerns and as the meeting occurred at a location deter-
mined by management that was away from the normal work
areas or any guest area, I find that this factor favors protection.
Random Acquisitions, LLC, 357 NLRB 303, 316 (noting com-
ments were made in an office away from the work area weigh
in favor of protection); Datwyler Rubber & Plastics, Inc., 350
NLRB 669, 670 (2007) (outburst in a breakroom away from
work areas) favored protection of employee conduct.
The subject matter factor also favors Alcaraz. She attempted
to open a discussion about the admonitions concerning gossip-
ing that Clemente raised on several occasions at daily briefings
and to learn what she meant by the reference to cutting tongues.
The sole response Alcaraz received from Clemente was to see
her later in private. When Clemente ignored Alcaraz’ effort to
speak further, other employees spoke out in support of Alcaraz’
effort to speak further by insisting that Clemente to “let Juliana
speak.” This fact strongly signals a shared interest on the part
of several employees for an open discussion about gossiping
19 These included the purportedly disparate practice of discouraging
or reprimanding Tagalog-speaking workers from using their language
when talking among themselves in contrast to others who used their
primary language without any known rebuke, Clemente’s alleged pro-
pensity to treat employees like “kids,” and her purported displays of
favoritism.
20 Although it is true that Clemente asked for the department super-
visors to provide a few laudatory words about the employees, I credit
Jordan-Gecain’s recollection that they had very little to say before
Clemente solicited employee comments.
around the workplace. Accordingly, I find that the subject
matter favors protection. Stanford N.Y., LLC, supra, at 559.
Finally, both the “outburst” and provocation factors also fa-
vor Alcaraz. The fact of the matter is Alcaraz’ termination did
not result from any type of “outburst” at all. As Clemente’s
internal memo given to Local 5 in January clearly shows, it
resulted from the fact that Alcaraz accused Clemente of engag-
ing in gossiping, a subject about which Clemente herself had
lectured employees several times during the daily briefings.
And this accusation only occurred because Clemente insisted
repeatedly that Alcaraz name the person or persons allegedly
engaged in gossiping, a disclosure Alcaraz expressed reluctance
to make. In short, Clemente brought the gossiping accusation
for which she fired Alcaraz on herself.
Respondent’s brief makes a footnote reference to Jordan-
Gecain’s testimony that Alcaraz commented, “[W]hat is this,
Communist? We can't speak anymore?” while she was seeking
to be recognized to speak again. Even assuming that it oc-
curred, there is no indication that Clemente heard the remark.
She did not mention it in her testimony, and there is no refer-
ence to it in the internal memo she wrote or in the statement
inserted in Alcaraz’ termination form. In short, there is no
evidence that this alleged comment had any bearing on the
decision to fire Alcaraz.
For the foregoing reasons, I find that Alcaraz’ conduct at the
December 8 meeting did not involve either violent conduct or
any type of conduct of such serious character as to render her
unfit for further service. Accordingly, I find Respondent termi-
nated Alcaraz for her protected concerted activity in violation
of Section 8(a)(1) as alleged. In view of this conclusion, I find
it unnecessary to consider the General Counsel’s further claim
that Alcaraz’ termination violated Section 8(a)(3).
b. Respondent’s refusal to grant Alcaraz access to the
Hotel as a union agent
Complaint paragraph 12 alleges that Alcaraz became a union
agent in March and that Respondent since that time has barred
her from the Hotel premises and refused to bargain with her.
Respondent admits that it has barred Alcaraz from the Hotel
premises because of her “assault” on Clemente at the December
8 meeting but asserts that it is willing and has bargained with
the Union and Alcaraz at other locations.
It is well established that both unions and employers have
the right to choose their representatives for purposes of collec-
tive bargaining or performing other labor relations activities.
Absent unusual circumstances, other parties are legally obligat-
ed to deal with the party’s chosen representative. United Par-
cel Service, 330 NLRB 1020 (2000). In cases of this kind, the
Board seeks to determine whether there is persuasive evidence
that the presence of a particular individual would create ill will
and make good-faith bargaining impossible. Neilmed Products,
358 NLRB 47, 47 fn. 2 (2012), and the cases cited there.
Although the parties appear to have focused on the ability of
Alcaraz to participate in the negotiation sessions because of the
Respondent’s position barring her from its premises, once she
became a union agent, Respondent’s position precluded her
from performing any functions normally performed by Local 5
agents such as meeting and speaking with employees at their

MODERN HONOLULU 241
workplace areas where other union agents are permitted.
Hence, I find that Respondent’s willingness to meet with Al-
caraz anywhere but at the Hotel fails to cure this problem.
Having concluded that Respondent unlawfully terminated
Alcaraz, I find it cannot justify barring her from its premises in
her capacity as a union agent. Respondent failed to show that
Alcaraz assaulted Clemente at the December 8 meeting as
claimed or at any other time. Furthermore, Respondent has
failed to provide any persuasive evidence that Alcaraz’ pres-
ence on its property to perform the functions of a union agent
would “create ill will and make good-faith bargaining impossi-
ble.” Accordingly, I find that Respondent violated Section
8(a)(5) by barring Alcaraz from its property for the purpose of
performing the usual and ordinary functions as a designated
agent of Local 5.
4. Complaint paragraph 10: Jenie Amoguis
and the Weingarten issue
Complaint paragraph 10 alleges that Respondent violated
Section 8(a)(1) by denying Amoguis’ request to be represented
by the Union during the June 12 interview that she had reason-
able cause to believe would result in disciplinary action against
her. The General Counsel’s brief makes clear that this allega-
tion pertains only to the first Amoguis interview conducted by
Clemente that day. (GC Br. at 45–47.) Respondent contends
that Amoguis did not request union representation and, assum-
ing she did, she did not do so until “all investigatory aspects of
the meeting were over.” (R. Br. at 56.)
Amoguis’ account, which I credit, reflects that Clemente
made harsh demands for Amoguis to explain Cabudol’s room
cleaning assignments from the outset. In the midst of this,
Clemente reminded Amoguis that she had been warned before.
Accordingly, I find that the tone and atmosphere of the inter-
view along with the reference to a warning given to Amoguis
the month before provided a reasonable basis for her to con-
clude that the interview might result in disciplinary action.
When this potential result became apparent to her, Amoguis
requested to have “someone” present. Respondent’s assertion
that the investigatory aspect of the meeting had concluded by
that point lacks merit in view of the credible evidence showing
that Clemente scoffed at the request and continued demands
that Amoguis explain the basis for the room cleaning alloca-
tions she made among the room attendant staff.
In my judgment, the credible evidence on this issue shows
that Clemente violated Section 8(a)(1) in this instance. Amo-
guis’ request that morning to have “someone” present was suf-
ficient to invoke her Weingarten rights. General Die Casters,
Inc., 358 NLRB 742 (2012). Because she failed to permit
Amoguis to obtain the presence of a representative or terminate
the interview, Clemente interfered with Amoguis’ Section 7
rights. General Motors Corp., 251 NLRB 850, 857 (1980),
enfd. in part and enf. denied in part 674 F.2d 576 (6th Cir.
1982).
CONCLUSIONS OF LAW
1. By coercively interrogating its employees about their ac-
tivities or sympathies on behalf of Local 5; by engaging in sur-
veillance of its employees’ union activities and creating the
impression among its employees that it was engaged in surveil-
lance of its employees’ activities on behalf of Local 5; by refus-
ing Jenie Amoguis’ request for representation during an inves-
tigatory interview on the morning of June 12, 2012; and by
discharging Juliana Alcaraz on December 12, 2011, Respond-
ent engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
2. By denying Juliana Alcaraz access to the Hotel in her ca-
pacity as an agent of Local 5 after March 28, 2012, Respondent
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
My recommended Order requires Respondent to offer Juli-
ana Alcaraz reinstatement to her former position, or if that posi-
tion no longer exists to a substantially equivalent position and
make her whole for any loss of earnings and other benefits she
suffered as a result of her unlawful termination on December
12, 2011. Backpay for Alcaraz shall be computed in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In ac-
cord with Latino Express, Inc., 359 NLRB 518, my recom-
mended Order also requires Respondent to (1) submit the ap-
propriate documentation to the Social Security Administration
(SSA) so that when backpay is paid to Alcaraz, it will be allo-
cated to the appropriate calendar quarters, and/or (2) reimburse
her for any additional Federal and State income taxes she may
be assessed as a consequence of receiving a lump-sum backpay
award covering more than 1 calendar year.
My recommended Order also requires Respondent to ex-
punge from its records any reference to Alcaraz’ termination,
and to notify her in writing that this action has been taken and
that any evidence related to her unlawful termination will not
be considered in any future personnel action affecting her.
Sterling Sugars, Inc., 261 NLRB 472 (1982).
Finally, my recommended Order requires Respondent to post
the attached notice to employees (see Appendix) as provided in
J. Picini Flooring, 356 NLRB 11 (2010).
[Recommended Order omitted from publication.]