Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage

National Labor Relations Board - Administrative Judge Opinions

Jun 6, 2013

19-CA-032599 (N.L.R.B. Jun. 6, 2013)

JD(SF)–22–13
Anchorage, AL
i
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
REMINGTON LODGING & HOSPITALITY, LLC,
d/b/a THE SHERATON ANCHORAGE
and Cases 19–CA–32599
19–CA–32733
UNITE-HERE! LOCAL 878 19–CA–32734
19–CA–32735
19–CA–32736
19–CA–32737
19–CA–32738
19–CA–32739
19–CA–32740
19–CA–32745
19–CA–32760
19–CA–32806
19–CA–32812
19–CA–32915
19–CA–33009
19–CA–33010
19–CA–33011
19–CA–33047
19–CA–33194
19–CA–70707
19–CA–70719
TABLE OF CONTENTS
Statement of the Case.................................................................................................................................... 1
Findings of Fact ............................................................................................................................................ 3
I. Jurisdiction ............................................................................................................................................ 3
II. Labor Organization .............................................................................................................................. 3
III. The Alleged Unfair Labor Practices ................................................................................................... 4
A. Respondents’ History with the Board.............................................................................................. 4
B. The current unfair labor practices.................................................................................................... 5
1. The 8(a)(1) allegations................................................................................................................. 6
a. The surveillance of employees’ union activities...................................................................... 6
i. The surveillance cameras ..................................................................................................... 6
ii. Managers’ increased presence in the employee cafeteria ................................................... 8
iii. The June 22, 2010 bake sale surveillance ........................................................................ 10
iv. July 6, 2010 press conference surveillance ...................................................................... 10
v. July 30, 2010 surveillance of the Union march of the rat ................................................. 10
vi. August 26, 2010 surveillance of the Union march........................................................... 11
b. Removal of union buttons by Rydin and Fullenkamp ........................................................... 12
c. Coercion by Emmsley, Sr. regarding NLRB testimony ........................................................ 13
d. Interrogation of employees by Artiles and Emmsley about signing the
decertification petition........................................................................................................... 14
e. Enforcement of work rules .................................................................................................... 16
JD(SF)–22–13
ii
f. Prohibiting employees from distributing literature on the hotel property.............................. 18
2. The 8(a)(3) allegations............................................................................................................... 19
a. Discipline of Fay Gavin......................................................................................................... 19
i. The March 19, 2010 discipline........................................................................................... 19
ii. The November 3, 2010 appraisal and reprimand .............................................................. 21
a) The reprimand............................................................................................................... 21
b) The appraisal ................................................................................................................ 23
c) The discipline................................................................................................................ 24
d) The evaluation .............................................................................................................. 25
b. The April 14-15, 2010 discipline of Ana Rodriguez, Audelia Hernandez
and Shirley Grimes ............................................................................................................... 25
c. Shirley Grimes January 19, 2011 discipline .......................................................................... 28
d. The Dexter Wray discipline................................................................................................... 30
i. The May 10, 2010, pool overflow incident and discipline................................................. 30
ii. Swearing incident and discipline ...................................................................................... 31
iii. The gambling incident and Wray’s termination .............................................................. 33
e. The termination of Yanira Escalante Medrano...................................................................... 36
f. The schedule change, reduced hours, and discharge of Elda Buezo ...................................... 37
i. The schedule change and reduction of hours ..................................................................... 38
ii. Buezo’s termination .......................................................................................................... 39
g. The August 2010 decrease in shifts for banquet employees Joanna Littau,
Fay Gavin, John Fields, Vicki Williams................................................................................ 41
h. The July 2010 decrease in hours for restaurant employees Gina Tubman
and Kyoko Akers ................................................................................................................... 46
i. The August 2010 increase in shifts for banquet employees who signed
the decertification petition ...................................................................................................... 49
3. The 8(a)(5) allegations............................................................................................................... 53
a. The April 24, 2010 ban of Union Representative Esparza from the hotel............................. 53
b. The July 2, 2010, ban of the Union from the hotel................................................................ 55
c. The July 2010 elimination of banquet employees’ scheduling preference sheets ................. 55
d. The July 2010 cessation of posting banquet employees’ schedules by noon
on Friday................................................................................................................................ 57
e. In July 2010 Respondent ceased assigning work and scheduling by seniority...................... 57
f. In July 2010 Respondent assigned engineering unit work to non unit employees................. 58
g. The July 2010 change in sick leave policy ............................................................................ 59
h. In July 2010 Respondent ceased payments to the UNITE-HERE!
National Retirement Fund ..................................................................................................... 61
i. The October 2011 subcontracting of bargaining unit banquet server work ........................... 62
j. In October 2010 Respondent reduced banquet server pay by reallocating part
of their gratuity to a third party provider ................................................................................ 63
k. The March 30 and April 20, 2010 information requests concerning Server
Fay Gavin’s grievance........................................................................................................... 67
l. The April 20, 2010 information requests concerning the Audelia Hernandez,
Ana Rodriguez, and Shirley Grimes’ grievances. ................................................................. 68
m. The June 11, 2010 information request for schedules for by department
and an updated employee roster ................................................................................................ 69
Conclusions of Law .................................................................................................................................... 70
Remedy ....................................................................................................................................................... 73
ORDER....................................................................................................................................................... 75
APPENDIX................................................................................................................................................ 81
JD(SF)–22–13
Anchorage, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
REMINGTON LODGING & HOSPITALITY, LLC,
d/b/a THE SHERATON ANCHORAGE
and Cases 19–CA–32599
19–CA–32733
UNITE-HERE! LOCAL 878 19–CA–32734
19–CA–32735
19–CA–32736
19–CA–32737
19–CA–32738
19–CA–32739
19–CA–32740
19–CA–32745
19–CA–32760
19–CA–32806
19–CA–32812
19–CA–32915
19–CA–33009
19–CA–33010
19–CA–33011
19–CA–33047
19–CA–33194
19–CA–70707
19–CA–70719
Susannah C. Merritt, Esq., and Rachel Cherem, Esq.,
for the Acting General Counsel.
Karl M. Terrell, Esq., and Todd B. Stoller, Esq.
for the Respondent.
Mark Westerberg, Esq. and Noah Sunflower, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Anchorage,
Alaska, over 19 days between October 16 and December 14, 2012, upon the order further
consolidating cases, third amended consolidated complaint and notice of hearing,
JD(SF)–22–13
2
as amended1, herein complaint, in Cases 19–CA–32599 et al, issued on September 17, 2012, by
the Regional Director for Region 19.
The complaint alleges that Respondent violated Section 8(a)(1) of the Act by creating an
impression that employees’ union activities were under surveillance, by engaging in numerous 5
acts of surveillance of employees’ union activities, by telling employees to remove union
buttons, by coercing employees regarding testimony at an NLRB hearing, by interrogating
employees about signing a union decertification petition, by maintaining and enforcing a rule
limiting access to hotel property without manager’s approval, by maintaining and enforcing a
rule prohibiting distribution of material in a work area or by soliciting guests at any time, by 10
maintaining and enforcing a rule limiting employee presence to work areas and limiting access to
nonwork areas without approval of management, by prohibiting off duty employees from
distributing literature at the hotel entrance or on hotel property, and by threatening to call police
if employees failed to leave hotel property.
15
The complaint also alleges that Respondent violated Section 8(a)(1) and (3) of the Act by
disciplining employee Fay Gavin, by reducing Gavin’s hours, and by giving Gavin a poor
evaluation. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act by
disciplining employees Ana Rodriguez, Audelia Hernandez, and Shirley Grimes. The complaint
alleges that Respondent violated Section 8(a)(1), (3), and (4) of the Act by disciplining and 20
discharging employees Dexter Wray and Yanira Escalante Medrano. The complaint alleges that
Respondent violated Section 8(a)(1) and (3) of the Act by changing the schedule, reducing the
hours of and discharging employee Elda Buezo. The complaint alleges that Respondent violated
Section 8(a)(1) and (3) of the Act by decreasing the shifts for banquet employees who supported
the union and by decreasing the number of hours for restaurant employees who supported the 25
Union. Finally, the complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act
by increasing the number of shifts of banquet employees who signed a petition to decertify the
Union.
The complaint also alleges that Respondent violated Section 8(a)(1) and (5) of the Act by 30
banning Union Representative Daniel Esparza from the hotel facility, by banning the Union from
the facility, by eliminating banquet employees’ scheduling preference sheets, by terminating its
practice of posting banquet employee schedules by noon on Fridays, by ceasing to assign work
and schedule employees according to seniority, by assigning engineering bargaining unit work to
nonunit employees, by changing its sick leave policy, by ceasing to make retirement fund 35
contributions on behalf of unit employees, by subcontracting banquet server work, by reducing
banquet server compensation by reallocating a portion of their gratuity to pay for the services of
subcontractors, by changing banquet set up and server duties, by changing banquet server and set
up staffing and scheduling and by refusing to provide information to the Union that was
necessary and relevant to their duties as collective-bargaining representative.40
Respondent timely filed its answer2 to the complaint and stating it had committed no
wrongdoing.

1 On October 16, 2012, General Counsel moved to amend the complaint by removing any reference to Case 19–
CA–32764, as that case was withdrawn, withdrawing complaint pars. 20(b) and (d) as well as other technical
amendments. The motion was granted. See GC Exh. 1(pppp).
JD(SF)–22–13
3
FINDINGS OF FACT
Upon the entire record here, including the briefs from the Counsel for the Acting General
Counsel (General Counsel) and Respondent, I make the following findings of fact.5
I. JURISDICTION
Respondent in its answer denied virtually every allegation in the complaint including the
jurisdiction allegations of paragraphs 2 and 3. 10
This is not the first time this Respondent has been involved in litigation before the Board.
After the record in the instant case closed, the Board decided Sheraton Anchorage, 359 NLRB
No. 95 (2013). (Remington I). In Remington I, the Board affirmed the decision of
Administrative Law Judge Gregory Meyerson and found that Respondent had engaged in 15
numerous unfair labor practices, including unlawful withdrawal of recognition from the Union,
unlawful refusal to bargain with the Union, maintenance and enforcement of overbroad and
unlawful work rules, numerous unlawful disciplines and terminations, and multiple unilateral
changes in terms and conditions of employment without notice to or bargaining with the Union.
20
In his decision Judge Meyerson found, based upon the parties’ stipulation, that the
Respondent, during the 12 months preceding the issuance of the first complaint, in conducting its
business operations, derived gross revenues in excess of $500,000, and also purchased and
received at its Anchorage facility goods valued in excess of $50,000 directly from points located
outside the State of Alaska. There is no evidence that Respondent’s business operations have 25
failed to meet the Board’s jurisdictional requirements at the present time. I find that the
Respondent is now, and at all times material here has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION30
Respondent denied that Unite Here!, Local 878, AFL–CIO, here the Union, is a labor
organization within the meaning of the Act. In Remington I Respondent also denied the labor
organization status of the Union, however Judge Meyerson concluded that, “the evidence
provided at the hearing through the testimony of numerous witnesses establishes that Local 878 35
negotiates collective-bargaining agreements on behalf of employees with various employers in
the State of Alaska, the terms of which agreements provide for the wages, hours, and working
conditions of the represented employees. Further, the evidence establishes that Local 878
engages in the processing of grievances under the terms of those collective-bargaining
agreements on behalf of said employees, and that employees fully participate in the operation of 40

2 On October 19, 2012, Respondent moved to amend its answer to add additional affirmative defenses including
laches and that Respondent has remedied unfair labor practices as ordered by the United States District Court in the
10(j) injunction. The motion was granted. See R.Exh. 11.
JD(SF)–22–13
4
the Union and in the collective-bargaining process.”3 No evidence was adduced in the instant
hearing to establish that the Union no longer engages in the above enumerated functions.
Accordingly, I find that at all times material here, the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES5
A. Respondents’ History with the Board
Respondent operates and manages the Sheraton Anchorage hotel, a 370 room facility
located in downtown Anchorage, Alaska. The Union has represented a unit of about 180
employees at the hotel for over 30 years. In its answer, Respondent denied the successorship 10
allegations contained in complaint paragraph 2 and the appropriate unit allegations in paragraph
6. In Remington I, Judge Meyerson found that in December of 2006, the hotel property was
purchased by Ashford TRS Nickle, LLC, (Ashford). Remington, the agent for the new owner,
assumed management of the hotel and hired all of the existing employees. When Ashford
bought the hotel, the previous manager of the hotel, Interstate Hotels and Resorts, Inc. d/b/a 15
Sheraton Anchorage Hotel (Interstate) and the Union were parties to a collective-bargaining
agreement in effect from March 1, 2005 to February 28, 2009. The parties in Remington I
stipulated that Remington is a successor to Interstate with respect to the operation of the hotel.4
Further, they stipulated that the Union was the exclusive collective-bargaining representative of
the employees in the hotel unit, which unit constituted an appropriate bargaining unit within the 20
meaning of Section 9(a) of the Act. The parties agreed that Interstate recognized the Union in
successive collective-bargaining agreements, until the hotel was sold in December 2006. The
most recent of those agreements is referred to as the expired collective-bargaining agreement.5
Based on these facts, Judge Meyerson found that Respondent recognized the Union as its
employees’ collective-bargaining representative and assumed the collective-bargaining 25
agreement when it commenced operating the hotel in December of 2006. He also found that
Respondent was a successor employer within the meaning of the Act and that the represented
unit at the hotel which consisted of all employees, with the exception of guards, supervisors,
managerial employees, clerical employees, and confidential employees was an appropriate unit.
30
Based upon Judge Meyerson’s findings, as affirmed by the Board, as well as the parties’
stipulation here, I conclude that Remington was a successor to Interstate and that the Union was
the exclusive collective-bargaining representative of the employees in the hotel unit, which unit
constituted an appropriate bargaining unit within the meaning of Section 9(a) of the Act. I find
that Interstate recognized the Union as such in successive collective-bargaining agreements, until 35
the hotel was sold in December 2006. The most recent of those agreements was in effect from
March 1, 2005 to February 28, 2009. I find that Respondent recognized the Union as its
employees’ collective-bargaining representative and it assumed the collective-bargaining
agreement when it commenced operating the hotel in December of 2006. Finally, I find that the
unit the Union represented at the hotel consists of all employees, with the exception of guards, 40
supervisors, managerial employees, clerical employees, and confidential employees, as set forth
in paragraph 6(a) of the complaint.

3 Remington I at p. 3.
4 At the hearing on October 16, 2012, Respondent stipulated that it is a successor to Interstate.
5 GC Exh. 2.
JD(SF)–22–13
5
The Board affirmed Judge Meyerson’s finding that the parties engaged in bargaining for
a successor collective-bargaining agreement from October 27, 2008, through March 11, 2010.
While he found that the parties bargained to impasse on August 21, 2009, that impasse was
broken as a result of further negotiations on March 10, 2010. The Board found that 5
Respondent’s continued refusal to engage in bargaining after March 11, 2010, showed it was not
bargaining in good faith and constituted a violation of Section 8(a)(5) of the Act.
In addition, the Board found that Respondent violated Section 8(a)(3) of the Act
commencing on November 19, 2009, when it suspended and/or issued written disciplinary 10
warnings to nine union supporters who presented Respondent’s General Manager Artiles with
the Union’s boycott petition and on February 3 and 17, 2010, when it suspended and then
terminated four union supporters who had distributed handbills outside the hotel calling on
potential customers to boycott the hotel.
15
Further unlawful conduct found by the Board in Remington I included confiscation of
union buttons by supervisors on about December 8, 2009, and since November 1, 2009, the
maintenance and enforcement of unlawful rules of conduct in its employee handbook, all in
violation of Section 8(a)(1) of the Act.
20
The Board also affirmed Judge Meyerson’s finding that Respondent violated Section
8(a)(5) of the Act by its unilateral assignment of security duties to bargaining unit engineers
from July through September of 2009. He also found that Respondent violated Section 8(a)(5) of
the Act when in mid-October of 2009 it unilaterally implement changes in the terms and
conditions of the expired collective-bargaining agreement including increasing the number of 25
rooms attendants were expected to clean from 15 to 17; ceasing to pay for meal breaks; and
imposing a fee on employee purchases in the cafeteria.
The Board also found that on March 11, 2010, the Respondent prematurely declared an
impasse in negotiations, and violated the Act on May 1, 2010, by unilaterally implemented a new 30
medical insurance plan and by ceasing payments to the extant medical insurance plan (the Taft-
Hartley Plan). In addition the Board found that since March 11, 2010, the Respondent has
unlawfully failed and refused to continue negotiating with the Union.
The Board affirmed Judge Meyerson’s finding that a decertification petition presented by 35
unit employees to Respondent on May 20, 2010, was tainted by Respondent’s pervasive,
unremedied unfair labor practices and by the unlawful assistance Respondent’s managers and
supervisors gave by coercing employees into signing the petition. Based on these findings, the
Board concluded that Respondent’s July 2, 2010, withdrawal of recognition from the Union as
the exclusive collective-bargaining representative of the bargaining unit and its continued refusal 40
to continue negotiations violated Section 8(a)(5) of the Act.
B. The Current Unfair Labor Practices
This case is yet a further chapter in Respondent’s unlawful refusal to recognize and
bargain with the Union and its continuing efforts to undermine the Union by unlawfully 45
threatening and coercing employees, by spying on employees’ union activities, by unlawfully
maintaining and enforcing overly broad work rules, by disciplining union adherents not only for
JD(SF)–22–13
6
their union activities but also for participating in Board proceedings, by banning union
representatives from entering hotel property, by refusing to provide the Union with information
necessary and relevant to perform its obligation as bargaining unit representative and by
unilaterally changing bargaining unit employees’ terms and conditions of employment.
5
During the relevant period here, the management structure at the Sheraton Anchorage
Hotel included General Managers Denis Artiles and John Kranock, who took over for Artiles in
2011, Human Resources Director Jamie Fullenkamp, Housekeeping Director Eduardo Canas,
Executive Chef Glen Rydin, Chief of Engineering and Security Ed Emmsley Sr., and Banquet
Manager Cindy Mathers.10
The union officials who were involved in this case include President, Marvin Jones,
Business Agent Daniel Esparza and organizer Jessica Lawson.
1. The 8(a)(1) allegations
a. The surveillance of employees’ union activities15
i. The surveillance cameras
On April 14, 2010, Respondent’s housekeeping porter Audelia Hernandez was called to a
meeting in General Manager Artiles’ office. Artiles told Hernandez other managers and
employees accused her of distributing papers for the Union. Hernandez denied distributing 20
papers for the Union. Artiles told Hernandez to sign her disciplinary form6 which stated that, “it
was reported by several associates that you, during your worktime, approached them during their
worktime while they were on the clock, and asked them to sign a document regarding union
issues.” Hernandez refused to sign the form because she did not agree with the accusations.
Artiles replied that there were several surveillance cameras around the hotel and more would be 25
installed. He said he would investigate and talk to her further. I credit Hernandez’ testimony as
it was consistent and given without guile. Artiles was not called as a witness at this hearing.
Analysis
30
Complaint paragraph 7 alleges that on about April 14, 2010, Artiles created an impression
among its employees that their union activities were under surveillance by telling them that he had
cameras up and would put up more at the facility.
It is well settled that the Board’s test for a violation of Section 8(a)(1) of the Act 35
is that:
[I]nterference, restraint, and coercion under Section 8 (a) (1) of the Act does not turn on
the employer’s motive or on whether the coercion succeeded or failed. The test is
whether the employer engaged in conduct which, it may reasonably be said, tends to 40
interfere with the free exercise of employee rights under the Act. American
Freightways, Co., 124 NLRB 146, 147 (1959).

6 GC Exh. 53.
JD(SF)–22–13
7
In Miller Electric Pump and Plumbing, 334 NLRB 824, 825 (2001) the Board reaffirmed
the principle that the coerciveness of an employer’s action or statements is not dependent upon
the effect on the employees or the subjective reaction of the employee. In Miller the Board held
that in determining the coerciveness of an employer’s remark:
5
The Board applies the objective standard of whether the remark tends to interfere with the
free exercise of employee rights. The Board does not consider either the motivation
behind the remark or its actual effect. . . . Moreover, as discussed above, speculation as
to the subjective reactions of the Respondent’s other employees are irrelevant since the
objective tendency of this statement is to interfere with the free exercise of employee 10
rights. . . . Moreover, we reject the judge’s assessment of Hemphill’s reaction to Miller’s
request. Rather, we must again assess the objective tendency of the statements to coerce
employees, and not the employees’ subjective reactions.
Respondent suggests that in assessing whether there has been unlawful surveillance the 15
subjective feelings of those who have been spied upon are a relevant consideration.
Respondent’s position is unsupported by either Board law or the cases it cites. Neither U.S.
Steel Corp. v. NLRB, 682 F.2d 98, 101 (3d Cir. 1982) nor NLRB v. Computed Time Corp, 587
F.2d 790 (5th Cir., 1979) support the proposition that employees’ subjective feelings are a
consideration in determining if Respondent’s action are coercive under Section 8(a)(1) of the 20
Act. U.S. Steel and Computed Time merely stand for the proposition that whether an employer
has created an unlawful impression of surveillance depends upon whether under all the relevant
circumstances reasonable employees would assume from the statement in question that their
union or protected activities had been placed under surveillance.
25
The Board’s test for determining whether an employer has created an unlawful
impression of surveillance is whether under all the relevant circumstances reasonable employees
would assume from the statement in question that their union or protected activities had been
placed under surveillance. Stevens Creek Chrysler, 353 NLRB 1294, 1295–1296 (2009);
Bridgestone Firestone South Carolina, 350 NLRB 526, 527 (2007).30
In Labor Ready, Inc., 327 NLRB 1055, 1059 (1999), the Board affirmed the ALJ who
found that Respondent’s use of a video camera created an impression that employees’ union
activities were under surveillance. In Labor Ready the employer did not set up the camera until
after it became aware of employees’ union activities. The camera was used to surveil other 35
employees protected activities and to dissuade them from engaging in union activities. While
there was some dispute as to when the camera was turned on, the judge found the employees
would have reasonably believed that it was set up to record their actions and was operating.
The issue here is not the use of surveillance cameras but rather Artiles’ statement to 40
Hernandez, in the context of her protected activities, that there were surveillance cameras; that
more would be installed in the hotel; and that he would investigate further and get back to her.
A reasonable conclusion could be drawn from Artiles’ statement that he was going to determine
if her defense had any merit by reviewing the surveillance recordings to determine if Hernandez’
conduct violated Respondent’s no solicitation rule, a legitimate purpose. However, the reference 45
to more cameras being installed suggests a threat that Respondent would be setting up more
cameras to more closely monitor Hernandez’ protected activity. I conclude that under all the
circumstances, reasonable employees would assume from the statement that more surveillance
JD(SF)–22–13
8
cameras would be installed and that their union or protected activities had or would be placed
under surveillance in violation of Section 8(a)(1) of the Act. Stevens Creek Chrysler, 353 NLRB
1294, 1295–1296 (2009); Bridgestone Firestone South Carolina, 350 NLRB 526, 527 (2007).
ii. Managers’ increased presence in the employee cafeteria5
In early 2010, Union Representatives Esparza and Jones met with employees in
Respondent’s basement cafeteria on a daily basis during their breaks to discuss union issues.
Esparza was present in the cafeteria from 10:30 a.m. until about 1:30 p.m. and again between
5:30 p.m. and 6:30 p.m. in early 2010. In March and April 2010, Esparza noted that certain of 10
Respondent’s supervisors and managers, including Human Resources Director Fullenkamp,
Chief of Engineering Ed Emmsley Sr., chef Rydin and Housekeeping Manager Eduardo Canas
began visiting the employee cafeteria on a more frequent basis. Before March 2010, Esparza
never saw Rydin in the cafeteria during the day. After March 2010, Rydin would stand with his
arms folded for up to 15 minutes observing employees. Esparza saw Canas in the cafeteria only 15
infrequently during the day but began coming more frequently in March and staying for half an
hour. Emmsley would stay in the cafeteria the entire time Esparza was present during the day.
Esparza noted that in March Fullenkamp began visiting the employee cafeteria for the first time
during the evening hours.
20
In early 2010, it was Jones’ practice to visit with employees 6 or 7 days a week in the
cafeteria twice a day, at 10 a.m. for about 2 to 3 hours and again at 4 p.m. His testimony was
consistent with that of Esparza that in April 2010, he began to see managers, including Emmsley,
Fullenkamp, and Canas more frequently in the employee cafeteria than in late 20097 and early
2010. Jones saw Emmsley in the cafeteria daily for 1–1-1/2 hours eating and talking to 25
employees. Prior to early 2010, Jones saw Emmsley in the cafeteria four or five times a month.
Canas was seldom in the cafeteria in late 2009 and early 2010 but was present three times a week
for 30 minutes at a time after March. Likewise Fullenkamp was rarely in the cafeteria for an
extended period in late 2009, but after March she was there three times a week in the morning
and afternoon for 30 minutes at a time. I credit Jones and Esparza’s testimony as they were in 30
the best position to observe who came and went from the cafeteria and in no way tried to
embellish their testimony.
Several employees for each party testified about the frequency of Respondent’s managers
in the employee cafeteria in early 2010. Since most of them were present for 30 minutes or less 35
at a time between 10:30 a.m. and 1 p.m., I find that Esparza and Jones, by virtue of the length of
time they were in the employee cafeteria on a daily basis, were in a more competent position to
observe the presence of Respondent’s managers.
Canas did not testify and Emmsley did not deny he was in the cafeteria more frequently. 40
Fullenkamp testified that she has eaten in the employee cafeteria between noon and 1:30 p.m.
four to five times a week since 1980, and is in and out of the cafeteria three to four times a day
for coffee. She said she sees Emmsley four to five times a week in the cafeteria and that neither
were more frequently in the cafeteria in early 2010 than in late 2009. Fullenkamp claimed that
she saw Rydin eating in the cafeteria three to four times a week but she admitted that she and he 45

7 In late 2009 Jones was in the employee cafeteria twice a day, 3 to 4 days a week.
JD(SF)–22–13
9
ate in the cafeteria at different times. She also ate at different hours than Canas and was in no
position to competently testify about his or Rydins’ presence in the cafeteria in late 2009 or early
2010.
I find that Fullenkamp’s testimony was not reliable but was conveniently tailored to meet 5
the needs of Respondent. In another context, Fullenkamp’s explanation that the “Termination
Record”8 for Elda Buezo which states “termed by phone” means Buezo quit, is beyond belief.
Her contention that it was Buezo who quit is also belied by Fullenkamp’s notes9 of her
conversation with Buezo on June 15, 2011. The notes state, “6/15 Elda called. Told her since
she didn’t follow procedure & fill out correct paper work I considered her as she resigned.” An 10
email chain10 dated June 6, 2011, between Fullenkamp and Remington Corporate VP Nancy
Hafner concerning Buezo’s termination, further discredits Fullenkamp’s credibility. Fullenkamp
asks Hafner if she can terminate Buezo and Hafner replies, “Yes, tell her that by failing to show
up-that we consider that she has voluntarily resigned her position. We are not terming her-she
resigned.” In essence, Hafner tells Fullenkamp, yes you can terminate her but call it a 15
resignation. Fullenkamp was the ultimate convenient witness for Respondent. I do not credit
Fullenkamp’s testimony concerning the frequency of managers in the cafeteria or any other
matter in controversy.
I find there is evidence to establish that Respondent’s managers, including Emmsley, 20
Rydin, and Canas, substantially increased their presence in the employee cafeteria in the period
of early 2010 compared to their previous practice in late 2009, at a time when both the
decertification petition and a rival pro-union petition were being circulated among Respondent’s
employees.
25
Analysis
Complaint paragraph 8 alleges that beginning on or about March 16, 2010, through about
July 2, 1010, Respondent through its managers and supervisors engaged in surveillance of
employees union activities in the employee cafeteria. 30
The Board, in F. W. Woolworth Co., 310 NLRB 1197 (1993), held that an employer’s
mere observation of open, public union activity on or near its property does not constitute
unlawful surveillance. However, an employer may not do something out of the ordinary to give
employees the impression that it is engaging in surveillance of their protected activities. Sprain 35
Brook Manor Nursing Home, 351 NLRB 1190, 1191 (2006).
In Liberty Nursing Homes, Inc., 245 NLRB 1194, 1200 (1979), the Board found that it
was out of the ordinary when supervisors departed from their usual practice of eating separately,
and mingled with employees in the dining areas utilized by employees during break and lunch 40
periods.
Here the record reflects that from about March 16, 2010, through July 2, 2010, when
Respondent withdrew recognition from the Union and banned the Union from the hotel property,

8 GC Exh. 129.
9 R. Exh. 21.
10 GC Exh. 131.
JD(SF)–22–13
10
the presence of supervisors and managers in the employee cafeteria significantly increased in a
manner out of their ordinary practice. This increased presence amounted to unlawful
surveillance in the employee cafeteria where union representatives conducted meetings with
employees on breaktime in violation of Section 8(a)(1) of the Act.
5
iii. The June 22, 2010 bake sale surveillance
On about June 22, 2010, the Union held a bake sale in support of four employees that
Respondent had fired. In Remington I, the Board found these employees were terminated in
violation of Section 8(a)(3) of the Act. The bake sale was held from 3 p.m. to 6 p.m., on the 10
public side walk on Eagle Street, near the hotel garage. About four to ten of Respondent’s
employees sold baked goods, and about 10 to 40 of Respondent’s employees purchased baked
goods.
It is undisputed that Respondent’s security guards photographed and videotaped the bake 15
sale from the roof of the parking garage for up to an hour.
In addition to the guards, Emmsley Senior also observed the bake sale from the front of
the hotel on Fifth Avenue for 5 to 10 minutes and from the garage roof for about 45 minutes.
Emmsley did not deny his observation of the bake sale.20
iv. July 6, 2010 press conference surveillance
On July 6, 2010, at 3:30 p.m., the Union held a rally regarding the return to work of four
fired employees. About seven employees together with 30 to 40 other participants gathered on
the public area of Denali Street near the Sixth Avenue entrance of the hotel. Union President 25
Marvin Jones together with employees Troy Prichacharn, Ana Rodriguez, Gina Tubman, and
Dexter Wray spoke at the rally about the employees returning to work and continuing to fight for
a fair contract. The press conference did not block access to the Sixth Avenue entrance of the
hotel.
30
It is again undisputed that two of Respondent’s security guards took photos and
videotaped the rally. Jones saw one security guard standing about 10 feet behind the group, and
another security guard photographing or videotaping from the sidewalk next to the hotel. The
guards also videotaped the rally from the parking lot on Denali and from outside the hotel
entrance. 35
Shortly after the rally started, Artiles, Rydin, Canas, and Emmsley came out of the Sixth
Avenue entrance and watched the press conference for about 10 to 15 minutes and then went
back inside the hotel to watch the remainder of the rally through the hotel’s restaurant window
for about an hour. From there, Rydin took pictures of the rally through the window. 40
v. July 30, 2010 surveillance of the union march of the rat
The “March of the Rat”, so called because the Union placed an 18–20 foot tall inflated rat
balloon on the public street in front of the hotel, took place in late July 2010. Over 100
participants, including at least 13 of Respondent’s employees participated in this event. Those 45
JD(SF)–22–13
11
attending the rally gathered around a podium on Denali Street on the corner of Sixth Avenue.
Jones and AFL–CIO President Vince Beltrani spoke, then the group circled the hotel shouting
chants and holding picket signs. The rally lasted about an hour without blocking access to the
hotel.
5
There is no dispute that security guards photographed and videotaped the entire rally
from the sidewalk and the parking lot near the hotel.
When the group arrived at the hotel, managers, including Artiles, Emmsley, Rydin,
Canas, Spa Manager Julie, and Remington Human Resources VP Mary Villareal came out of the 10
Sixth Avenue doors to watch the rally for from a few minutes to most of the event. Rydin taped
the event, from behind Artiles, for 45 minutes to an hour. Emmsley also took photos of the rally.
vi. August 26, 2010 surveillance of the union march
During an AFL–CIO conference on August 26, 2010, at about 3:30 p.m., representatives 15
of the unions attending the conference joined with Respondent’s employees in a march from the
Captain Cook Hotel to the Sheraton Anchorage Hotel. There were over 100 marchers including
about 10 employees.
At the Sheraton the crowd gathered around a truck parked on Denali Street near Sixth 20
Avenue. Richard Trumka, president of the International AFL–CIO, and Rick Sawyer,
International Regional Vice President for Unite Here, spoke from the truck bed. Also on the
truck were Respondent’s employees Shirley Grimes, Joanna Littau, Troy Prichacharn, Ana
Rodriguez, and Gina Tubman.
25
For 10 to 15 minutes of this march, Respondent’s managers, including Artiles, Canas,
Emmsley, Senior, Fullenkamp, and Rydin, stood outside the Sixth Avenue entrance to the hotel
and watched. Two of Respondent’s security guards videotaped and photographed the entire
march.
30
Analysis
Complaint paragraphs 9, 10, 11, and 12 allege that Respondent engaged in surveillance of
its employees’ union activities at a June 22, 2010, bake sale, a July 6, 2010, press conference, a
July 30, 2010, union rally and an August 26, 2010, union march.35
The Board, in F. W. Woolworth Co., 310 NLRB 1197 (1993), held that an employer’s
mere observation of open, public union activity on or near its property does not constitute
unlawful surveillance. However, photographing and videotaping clearly constitute more than
‘mere observation’ because photographing creates fear among employees of future reprisals. 40
Photographing in the mere, “belief that something might happen does not justify the employer’s
conduct when balanced against the tendency of that conduct to interfere with employees’ right to
engage in concerted activity.” National Steel & Shipbuilding Co., 324 NLRB 499, 499 (1997).
In Kingsbridge Heights Rehabilitation and Care Center, 352 NLRB 6, 10 (2008), in 45
order to validate photographing protected activity, the Board requires an employer to
JD(SF)–22–13
12
demonstrate that it had a reasonable basis to have anticipated misconduct by the employees and
thus engaged in photographing or videotaping protected activity to record evidence of
misconduct.
Respondent contends it had a need to observe, video and photograph the Union’s bake 5
sale, and peaceful marches because there had been an increase in vandalism and criminal
activity at the hotel in 2010. None of the incidents of vandalism and criminal activity testified to
by Emmsley could in any way be attributed to the Union or to the bargaining unit employees. In
fact none of the incidents Emmsely enumerated were caused in the course of a public union
event like a bake sale. It is pure speculation by Respondent to attribute any of the incidents to 10
the Union or bargaining unit employees. Respondent’s reliance on Home Comfort Products Co.,
180 NLRB 597, 600 (1970), is inapposite since there was no causal relation whatsoever between
the Union or Respondent’s bargaining unit employees and the acts of vandalism and criminal
activity at the hotel. Any subjective intent or motivation by Respondent in engaging in the above
surveillance is irrelevant as I ruled at the hearing. 15
Respondent’s photographing and videotaping of the bake sale and union rallies was
without justification and constituted unlawful surveillance in violation of Section 8(a)(1) of the
Act. However, the observation of the events by Respondent’s managers and supervisors appears
to have been mere observation of open, public union activity on or near its property and does not 20
constitute unlawful surveillance.
b. Removal of union buttons by Rydin and Fullenkamp
On July 7, 2010, bargaining unit Banquet Captain Shirley Grimes was at work wearing a
1-inch square gold and black union button that said Local 878, as she had every day since 1999. 25
While in the banquet area with fellow banquet server John Fields, chef Rydin came up to Grimes
and said take your button off. We are no longer union. Grimes took the button off and has never
worn it again at work.
In July 2010, shortly after he was reinstated by Respondent after his February 2010,30
termination for leafleting, bellman Troy Prichacharn was at work wearing a pin like Grimes’
with the Local 878 logo. Fullenkamp came up to Prichacharn in the hotel lobby and told him,
“this place is not union, take the button off.”11 Prichacharn removed the button and did not wear
it again until the 10(j) order was issued in 2012. I credit both Grimes and Prichacharn. Their
testimony was not rebutted.35
Analysis
Complaint paragraph 13 alleges that Respondent in early July 2010, and mid July 2010,
told employees to remove their union buttons. 40
The Board has long recognized that wearing union insignia is protected under the Act.
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945). Employers may not infringe upon
this right absent a showing of “special circumstances.” An employer violates the Act by

11 Tr. 1553, LL 6–7.
JD(SF)–22–13
13
instructing employees not to wear union buttons, or to remove union buttons. Wayneview Care
Center, 352 NLRB 1089, 1115 (2008).
It is undisputed that both Rydin and Fullenkamp told employees to remove union buttons.
No special circumstances for doing so were established in the record. By ordering employees 5
Grimes and Prichacharn to remove their union buttons, Respondent violated Section 8(a)(1) of
the Act.
c. Coercion by Emmsley Senor regarding NLRB testimony
Engineering employee Dexter Wray gave testimony on August 23 and 24, 2010, at the 10
Remington I hearing about, among things, Emmsley’s unlawful assistance regarding the
decertification petition. Artiles was present in the courtroom when Wray testified. Between the
2 days of hearing, on about August 24, 2010, in the morning before he testified, Wray had a
conversation in the engineering shop with Emmsley. Emmsley told Wray that Wray had to go to
court and then said, “don’t tell them about I had got you to sign the decert form or else I will lose 15
my job.”12 Wray said nothing and walked out of the shop. Emmsley denied making this
statement.
In his brief, Respondent’s counsel repeatedly casts Wray as a liar. In support of this slur,
counsel refers to several examples of Wray’s testimony in this case. First, Wray testified that on 20
about July 5, 2010, Emmsley Senior told him that his hours were being cut from 40 to 32 hours.
When Wray protested that he was the most senior employee, Emmsley told him it didn’t matter
since there was no union so he could do what he wanted. Wray said his hours were cut for a
period of between 2 to 4 weeks then he was restored to about 40 hours a week. However, it
appears from Wray’s timecards13 that his hours were cut by only a few hours in July and 25
August 2010. This is hardly the “bald faced lie” counsel accuses Wray of. Next counsel claims
Wray lied when saying Emmsley Senior denied him a union representative after receiving
discipline on about May 10, 2010, since Respondent had not yet refused to recognize the Union.
However , a reading of the transcript14 makes it unclear that the point in time Wray was referring
to was after July 2, 2010, since he referenced to this incident as when Emmsely said there was no 30
Union.

Next counsel takes issue with Wray’s description of the location of the swearing incident,
discussed below, claiming Wray put the incident in a nonpublic area. Wray did nothing of the
kind. Wray said the incident occurred in the back of the house, in a first floor service area in a 35
hallway.15 The record reflects that the incident took place in a corridor. Respondent’s counsel,
while assuming Wray meant a non-public area by his use of the term “back of the house”, never
bothered to ask Wray what he meant by “back of the house.” This uncertainty over location is
hardly a lie.
40
Finally counsel for Respondent accuses Wray of lying about whether he was playing
poker the morning of October 23, 1010. Counsel claims that in testimony Wray denied playing

12 Tr. 276, LL 4–5.
13 R. Exh. 42.
14 Tr. 307, LL 1–8.
15 Tr. 320, LL 1–7.
JD(SF)–22–13
14
poker before he went to work the morning of October 23.16 Counsel then asserts that Wray
admitted in a statement given to Union Representative Jessica Lawson, that he played poker that
morning.17 In the brief excerpt from his statement to Lawson, Wray did not explain what he
meant by playing poker and it is likely that Wray was referring to his consistent testimony that
he did go on line to the poker website not to play but to transfer play money to a fellow 5
employee. The fellow employee, Ed Emmsley Jr., the son of Emmsley Senior who fired Wray,
was never called as a witness by Respondent to rebut Wray’s assertion. I will draw an adverse
inference that if called, Emmsley Junior would have testified adversely to Respondent.
Contrary to Respondent’s assertion, I do not share his opinion that Wray was a “bald 10
faced liar.” Like Judge Meyerson, I will credit Wray’s testimony over that of Emmsley Senor
whose testimony was given in rote answers to conveniently provide cover for Respondent’s
defense. While Wray was not a well spoken man, his answers had a ring of truth to them unlike
Emmsley’s rote denials.
15
Respondent’s counsel, in his brief,18 suggests that if I credit Wray, I too am a liar.
Respondent’s counsel writes, “As Winston Churchill said, ‘It takes two to lie. One to lie and
one to listen.’ In this case, the ‘one to listen’ is this ALJ.” I find this suggestion offensive and
inappropriate. Respondent’s counsel has cast my reputation for honesty and fairness as an
administrative law judge in doubt and is a form of coercion and intimidation designed to have me 20
discredit Wray. Respondent’s unfounded accusation is deserving of reproach.
Analysis
Complaint paragraph 14 alleges that on about August 24, 2010, Respondent coerced an 25
employee regarding testimony at an NLRB hearing.
It is well settled that employer attempts to influence an employee’s testimony before the
Board or discourage an employee from pursuing an unfair labor practice charge are unlawful.
Remington Electric, 317 NLRB 1232, 1232 fn. 2, 1237 (1995); Aero Metal Forms, 310 NLRB 30
397, 398 (1993).
I find that Emmsley’s order to Wray not to testify about his solicitation of Wray to sign
the decertification petition in the Remington I hearing was an unlawful attempt to influence an
employee’s testimony before the Board in violation of Section 8(a)(1) of the Act.35
d. Interrogation of employees by Artiles and Emmsley about signing the
decertification petition
In September 1010, during the trial in Remington I, Somchai Hill, a food preparer at the
Jade Restaurant in Respondent’s hotel, was called into a meeting with Respondent’s General 40
Manager Artiles in the Jade Restaurant. Hill is a native Thai speaker and his English skills are
limited. He required the assistance of a Thai interpreter at the instant hearing. Artiles does not

16 At Tr. 335, L 17–25 Wray explains he was not playing poker that morning but was on the poker web site to
transfer chips to a fellow employee.
17 Tr. 419, L 22 toTr. 420, line 1.
18 Respondent’s posthearing brief, p. 35.
JD(SF)–22–13
15
speak Thai. The conversation between Artiles and Hill was in English. Apparently in order to
bolster its defense concerning allegations of improper influence by the employer regarding the
decertification petition at issue in Remington I, Artiles presented Hill with a form19 to fill out and
sign that is in the English language and was not translated for Hill. The form states that
Respondent wanted to ask Hill questions about a decertification petition he signed since it was 5
being challenged in an unfair labor practice charge filed by the Union. The form indicates that
the employee will not be retaliated against for anything said or not said to Respondent’s
management, that the interview is voluntary, and that the employee is not required to answer
questions or talk to Respondent’s management. The questionnaire then asks the employee to list
the reasons why they signed the decertification petition. 10
Hill testified that he did not understand all of the language on the form, nor did he
understand Artiles’ explanation of the form. While not reading or understanding the form, Hill
signed and initialed it. On a separate piece of paper, Artiles wrote down items circled 1, 2, and 3
on the form and had Hill copy them onto the form. Hill had not discussed items 1, 2, or 3 with 15
Artiles during this conversation. I credit Hill. His testimony was given in a consistent manner
and was never rebutted. It had a ring of truth to it.
At some unidentified time presumably after July 2010, Respondent’s banquet set up
employee Jun Sangalang was called into a meeting with several other employees to discuss 20
benefits with someone named Joe and Emmsley Senior. Joe gave Sangalang a packet of
information20 together with the decertification petition.21 Emmsley gave the employees the
questionnaire about the decertification petition,22 discussed above, and told them to read it, sign
it, and then give it to him. Emmsley did not deny these statements. I credit Sangalang.
25
Analysis
Complaint paragraph 15 alleges that on two occasions in August and September 2010,
Artiles and Emmsley interrogated its employees about their reasons for signing a union
decertification petition.30
General Counsel contends that the use of this form constituted unlawful interrogation. As
to Hill, the form was never explained to him in a language he fully comprehended so in essence
there were no warnings given. General Counsel also argues that the form itself violates the
requirements of Johnnie’s Poultry, Co., 146 NLRB 770, 775 (1964), since it asks for employees 35
subjective state of mind and the context in which the forms were distributed was not free of
employer coercion or hostility to union organization.
In Johnnie’s Poultry, Co., the Board held that where an employer has a legitimate reason
to inquire, such as the investigation of facts necessary to prepare the employer’s defense for trial 40
of an unfair labor practice case the employer may legitimately question employees. However,
the Board has safeguards designed to minimize the coercive impact of such employer
interrogation. The employer:

19 GC Exh. 96.
20 GC Exh. 103.
21 GC Exh. 97.
22 GC Exh. 97.
JD(SF)–22–13
16
[M]ust communicate to the employee the purpose of the questioning, assure him that no
reprisal will take place, and obtain his participation on a voluntary basis; the questioning
must occur in a context free from employer hostility to union organization and must not
be itself coercive in nature; and the questions must not exceed the necessities of the
legitimate purpose by prying into other union matters, eliciting information concerning 5
an employee's subjective state of mind, or otherwise interfering with the statutory rights
of employees. When an employer transgresses the boundaries of these safeguards, he
loses the benefits of the privilege.
Even when an employer gives the necessary assurances, the manner and substance of 10
employer questioning may violate the Act. The Board has held that questioning beyond the
permissible scope of inquiry constitutes a violation of Section 8(a)(1). See, e.g., Wisconsin
Porcelain Co., 349 NLRB 151, 153 (2007); Daniel Construction Co., 244 NLRB 704, 718
(1979).
15
Here when the general manager gave English language forms to a Thai speaker, without
any spoken explanation in the Thai language, Respondent in essence provided no warning
pursuant to Johnnie’s Poultry and Respondent lost the privilege of being able to interrogate Hill
regarding his reasons for signing the decertification petition.
20
General Counsel contends that the form is invalid on its face since, contrary to the
admonition in Johnnie’s Poultry, it asks for information concerning an employee’s subjective
state of mind. At the time this questionnaire was given to employees, Respondent was in the
midst of the Remington I trial in which the validity of its withdrawal of recognition of the Union
was in issue. The form asks for reasons why employees signed the decertification petition, an 25
essentially subjective process. While arguably, the purpose of form was to establish evidence to
show that the Union had actually lost the support of a majority of the bargaining unit employees,
their subjective reasons for doing so are irrelevant. Levitz Furniture Co., 333 NLRB 717 (2001).
Finally, given the context in which the forms were distributed, the use of the forms was 30
inherently coercive. In the case of Sangalang, he and other employees were called to a meeting
with engineering and security director Emmsley where they were told to fill out the forms. In
Hill’s case it was the general manager himself who gave and then filled out the form. This case
is one in which it has been established both in Remington I and here, as discussed below, that
Respondent demonstrated hostility to the Union and union activity by withdrawing recognition 35
from the Union, unlawfully terminating its employees because of their union activity, and
unilaterally changing terms and conditions of employment.
Contrary to Respondent’s assertion, the allegation contained in complaint paragraph 15 is
broad enough to encompass the validity of the form. It is the form that constitutes the 40
interrogation as it asks for the reasons employees signed the decertification petition while Artiles
and Emmsley effectuated the form’s questions through their distribution.
Thus, Respondent’s use of the form failed to comply with the requirements of Johnnie’s
Poultry and violated Section 8(a)(1) of the Act. 45
e. Enforcement of work rules
JD(SF)–22–13
17
Complaint paragraph 16 alleges that Respondent has enforced the rules in its handbook
described below.
a. Employees “agree not to return to the Hotel before or after [their] working hours
without authorization from [their] manager.”235
b. Distribution of any literature, pamphlets, or other materials in a guest or work area is
prohibited . . . Solicitation of guests by associates at any time for any purpose is also
inappropriate
10
c. Employees “must confine their presence in the Hotel to the area of their job
assignment and work duties. It is not permissible to roam the property at will or visit
other parts of the Hotel, parking lots, or outside facilities without permission of the
immediate Department Head
15
There is no evidence that these rules have been rescinded or that employees have been
advised by Respondent that they no longer have to follow these rules.
In Remington I at pages 2–3, the Board found that several work rules in Respondent’s
employee handbook24 overbroad and unlawful on their face or that their maintenance was 20
unlawful.
The Board found that rule a., above, which requires employees to secure permission
from the Respondent’s managers as a precondition to engaging in union or concerted activity
on the employee’s off duty hours and in a nonwork area, is presumptively unlawful. See25
Brunswick Corp., 282 NLRB 794, 795 (1987); Norris/O’Bannon, 307 NLRB 1236, 1245
(1992).
As discussed below in section xi, Respondent enforced all three rules in October 2011,
with respect to employees Joanna Littau, Scarlett Eickmeyer, and Fay Gavin.30
The Board also found rule c., above, as maintained, was an anti-loitering rule intended to
confine the employees to their immediate work areas and to prevent them from “roaming” the
property and was illegal. Palms Hotel & Casino, 344 NLRB 1363, 1363, 1391–1392 (2005);
Lutheran Heritage Village-Livonia, 343 NLRB 646, 649 fn. 16 (2004); Tri-County Medical35
Center, 222 NLRB 1089 (1976). In Palms Hotel & Casino, the Board found that rule prohibiting
employees from “loitering in company premises before and after working hours” violated
Section 8(a)(1), because the terms “loitering” and “premises” could lead off-duty employees to
conclude they could not engage in protected activities with other employees in nonworking areas
of the respondent’s property. 344 NLRB at 1363 fn. 3. Any ambiguity in a no loitering rule 40
“must be construed against the [employer] as the promulgator of the rules.” Ark Las Vegas
Restaurant, 343 NLRB 1281, 1282 (2004). See also Lutheran Heritage Village-Livonia, 343
NLRB 646, 655 fn. 3 (finding facially invalid rule against “[l]oitering on company property (the
premises) without permission from the Administrator”).
45

23 Id. at p.33.
24 GC Exh. 89.
JD(SF)–22–13
18
The Board agreed with Judge Meyerson that rule c., above, created a total prohibition on
all solicitation and distribution by the unit employees at the hotel and as maintained was
unlawful. Pace, Inc., 167 NLRB1089, 1098 (1967); Care Initiatives, Inc., 326 NLRB 144, 156
(1996).
5
Likewise, I find that these rules are invalid in their promulgation and enforcement and
violate Section 8(a)(1) of the Act.
f. Prohibiting employees from distributing literature on the hotel property
In early October 2011, Respondent’s banquet server Joanna Littau was handbilling with 10
fellow employee Scarlett Eickmeyer at the Sixth Avenue entrance to the hotel. They were about
10 feet from the front door and handing out flyers asking the public to boycott Respondent.
General Manager John Kranock came through the front doors and asked what Littau was doing
and who they were. Eickmeyer said they were both employees of the hotel. After some
conversation about the two employees not working at the hotel too much, Kranock said, “You 15
shouldn’t be here.”25
In late October 2011, Littau was again handbilling with fellow employee Fay Gavin at
Respondent’s Sixth Avenue entrance at the same location about ten feet from the door to the
hotel. The handbills asked patrons to boycott the hotel. After a period of time Kranock came out 20
to where Littau was handbilling and said that Littau and Gavin could not be there. Gavin said a
recent court case (apparently referring to Judge Meyerson’s decision) gave them permission to
be there. Kranock responded, “according to the handbook and according to our policies you are
not allowed to be here, you are trespassing.”26 Littau again referenced Judge Meyerson’s
decision finding the handbook rule unlawful. Kranock said he did not care about the decision 25
since it wasn’t a real judge. After some give and take, Kranock said that they did not have the
right to be handbilling and that he was going to call the police if they did not remove themselves
to the public sidewalk some 30 feet away. Littau called over union organizer Mark Westerberg,
who confronted Kranock and said the employees had a right to handbill. Kranock said he was
going to call the police. Kranock did not deny these allegations. I credit both Littau and Gavin.30
Analysis
Complaint paragraphs 17 and 18 allege that in early October and late October 2010,
Respondent prohibited off duty employees from distributing union literature near the main 35
entrance of the hotel and threatened to call police if the employees failed to leave the hotel
property.
The Act guarantees employees the right to distribute union literature on their employer’s
premises during nonwork time in nonwork areas. Republic Aviation Co. v. NLRB, 324 U.S. 793, 40
803–804 (1945); NLRB v. Babcock & Wilcox, 351 U.S. 105, 110–111 (1956); Central Hardware
Co. v. NLRB, 407 U.S. 539 (1972).

25 Tr. 1165, L 1.
26 Id. at p. 1170, LL 13–15.
JD(SF)–22–13
19
Respondent’s argument that the areas in front of the hotel entrances are work areas is
unsupported by Board law. In Santa Fe Hotel, Inc., 331 NLRB 723, 723 (2000), a hotel-
casino, claimed that the entire property was a working area because employees, at times,
cleaned and maintained the parking lot, and security guards patrolled the lot. In Santa Fe Hotel
the Board said that to hold areas such as the handbilled entrances outside its hotel-casino a 5
work area would effectively destroy the right of employees to distribute literature. The Board
in Santa Fe found that activities such as security, maintenance, and valet parking, which
typically occur at the entrances to a hotel, are incidental to a hotel’s primary function, and,
thus, are insufficient to transform a hotel’s front entrance area into a work area where the
employer could lawfully ban employee distributions. The Board reaffirmed this principle in 10
Meijer, Inc., 344 NLRB 916, 917 (2005), a retail department store. The Board found that
employees retrieving shopping carts and assisting customers to load purchases into cars was
not work integral to its food distribution business, therefore, the customer parking lot was not a
working area.
15
Kranock unlawfully enforced the three rules already found to be overly broad above.
I find that Kranock’s ban on employee handbilling at the hotel entrances was an overbroad
application of its no solicitation no distribution rule and violated Section 8(a)(1) of the Act.
In addition, Kranock’s threat to call the police if Gavin and Littau did not cease their 20
protected activity violated Section 8(a)(1) of the Act. Under Board law an employer violates
Section 8(a)(1) of the Act if it threatens to call the police in response to employees’ protected
union activity at its facility. Winkle Bus Co., 347 NLRB 1203, 1219 (2006).
2. The 8(a)(3) allegations25
a. Discipline of Fay Gavin
Fay Gavin has worked as a banquet server for Respondent and its predecessors for 25
years. At all times material here her supervisor was Banquet Manager Cindy Mathers. Gavin
has been very active in the Union for 20 years, serving on the Union’s executive board and the 30
negotiation committee for 20 years. After Respondent took over the Sheraton Anchorage hotel
operations, Gavin took part in the rallies in 2010 and engaged in handbilling at the hotel. In
February and March 2010, she passed out union buttons that said support the Fired Four, a
reference to four employees Judge Meyerson found Respondent had fired unlawfully. One of the
employees she gave a button to was Sue Kennedy at the hotel at the beginning of her shift.35
i. The March 19, 2010 discipline
On March 19, 2010, Gavin was given a written reprimand27 by Fullenkamp that stated:
40
On February 19, 2010, a banquet server came to see me and stated that you had given her
a union button to wear to support the 4 associates that were terminated. She said she told

27 GC Exh. 24.
JD(SF)–22–13
20
you that she did not want to wear the button and you told her if she did not wear the
button you would take her name off the tip pool.
* * *
5
Fay, you do not have the authority to remove any associate name from the tip pool.
Doing so will result in your immediate termination.
Verbally harassing, intimidating and or making threatening statements to another
associate are in violation of Remington’s company policy and will not be tolerated. . . .10
During the meeting Fullenkamp refused to disclose the name of the employee who had
made the complaint against Gavin. Gavin asked Fullenkamp if she wanted to hear her side of the
story and Fullenkamp replied that they thought the complaint was true. The employee, identified
during the course of the trial as Sue Kennedy, provided Respondent with a statement28 on 15
February 22, 2010, that stated Gavin had told her she would have her name taken off the “tips
paper” if she did not want to wear the button. According to Gavin, she offered Kennedy a
button, said she only had a few and if she wasn’t going to wear it she would like it back.
Nothing else was said between the two employees. The facts are essentially not in dispute
20
Analysis
Complaint paragraph 19(a) alleges that on March 19, 2010, Respondent disciplined
Gavin.
25
It is undisputed that Gavin was issued a written reprimand because she gave Kennedy a
button in support of four fired coworkers. The only issue is whether this activity lost its
protection as a result of Gavin’s alleged threat to Kennedy. In these circumstances, where the
conduct for which the Respondent claims to have disciplined Gavin was protected activity, the
Wright Line analysis is not appropriate. Felix Industries, 331 NLRB 144, 146 (2000); Neff 30
Perkins Co., 315 NLRB 1229 fn. 2 (1994); and Mast Advertising & Publishing, 304 NLRB 819
(1991).
Respondent’s defense is that Gavin was disciplined not because she was handing out
buttons, but because she threatened to remove her coworker from the tip pool if she refused to 35
wear the button. This defense is pretext. If such a threat was made it was patently an absurd and
hollow one because it is undisputed that Gavin, a nonsupervisory employee, had no authority to
take any banquet employee’s name out of the tip pool. It was standard operating procedure for
the gratuity to be distributed through servers’ paychecks. The gratuity was based on how many
hours each employee worked in the banquet department on any given shift. This payment was 40
solely in the control of Respondent.
Moreover, the evidence reflects that the incident was never investigated. Gavin was
never asked about the incident prior to receiving discipline. Even when Gavin asked Fullenkamp
if she wanted to hear Gavin’s side of the story during the disciplinary meeting, Fullenkamp was 45
not interested in what Gavin had to say stating, “we believe it to be true.” This prejudgment of

28 GC Exh. 7.
JD(SF)–22–13
21
Gavin and lack of a full investigation reflects further Respondent’s true discriminatory intent. K
& M Electronics, 283 NLRB 279, 291 fn. 45 (1987).
Even assuming the Wright Line test should apply, I find that Respondent was well aware
of Gavin’s union activity and its sham investigation reflects its true discriminatory intent. I find 5
that Respondent violated Section 8(a)(1) and (3) of the Act in issuing discipline to Gavin for
allegedly threatening her coworker.
ii. The November 3, 2010 appraisal and reprimand
a) The reprimand
10
On about November 3, 2010, Gavin was called to a meeting with Mathers and
Fullenkamp. At this meeting Gavin received a September appraisal29 as well as a reprimand.30
The reprimand was for missing two work shifts in October. The disciplinary action states in
pertinent part:
15
On October 11, 2010 Fay, you were scheduled at 6:30 AM but called off saying you
had personal reasons and would be out of town. You stated to me (Cindy Mathers)
that you were not able to work the following week of October 18th-23rd. At this time
I informed you that you needed to fill out the vacation or LOA form to see if your
request would be approved. You did not fill out the requested forms. October 18, 20
2010 you were scheduled at 6:30 AM but called off saying you would be out of town.
Our Company policy indicates that vacation or leave of absence time and or pay must
be requested in advance and approved by the Department Head. Also, it is well
known Hotel policy that vacations cannot be approved during period October 15 to
January 15 because of business needs.25
During the meeting Gavin told Fullenkamp and Mathers that she had given Rydin and
Mathers advance notice that she was going to be out of town on the 18th.
Gavin had given Rydin her preference sheet31 for September and October 2010, on 30
August 9, 2010. On that form Gavin requested off October 14–18, 2010. As noted below, after
July 2, 2010, Respondent stopped scheduling by seniority. As a result Gavin, one of the most
senior banquet employees, was scheduled for no work in July, August, and September 2010.32
Accordingly, Gavin was surprised to find out from a coworker, when the week’s schedule was
posted on Friday, October 8, 2010, that she had been scheduled for a 6:30 a.m. shift on Monday, 35
October 11, 2010. Gavin was at her house in Kenai, Alaska, several hours drive from Anchorage
because her Anchorage home had flooded and was under construction.
Gavin called her supervisor, Banquet Manager Mathers, on the day the schedule was
posted and told her she was unavailable to work October 11, 2010, because she had a flood at her 40
house in Anchorage and was at her cabin in Kenai, Alaska. Mathers replied, “that’s okay, I’ll

29 GC Exh. 29.
30 GC Exh. 33.
31 GC Exh. 25.
32 GC Exh. 28, pp 53–75.
JD(SF)–22–13
22
take care of it.”33 In that conversation Gavin told Mathers that she had given Rydin her August
preference sheet and that she would not be available for a few more days in October. Mathers
said that Respondent no longer used preference sheets and that Gavin would have to get a
vacation leave or fill out paperwork for a vacation leave. Gavin said that she did not need a paid
vacation. 5
On October 12, 2010, before Gavin left Anchorage, she met Banquet Captain Shirley
Grimes at a union contract negotiations meeting at the union hall. Gavin asked Grimes if she
would take a note to Fullenkamp just to let her know the days that Gavin was going to be out of
town and had let Rydin and Mathers know this. The next day Grimes slid Gavin’s note under 10
Fullenkamp’s office door.
While Gavin was out of town, she called Grimes on Friday, October 15, 2010, the day
that the schedule was posted, to make sure she was not scheduled for the next week. Grimes told
Gavin that she had been scheduled for 6:30 a.m. on October 18. Gavin immediately started 15
calling Mathers and left three messages telling Mathers that she was not available for the
October 18 shift.
When Gavin did not get a return call from Mathers, she called Rydin on Saturday,
October 16, and left a message that she would not be available for the October 18 shift. When 20
Rydin did not return her call, Gavin called the hotel on Sunday, October 17. Gavin spoke with
Jeff, the manager on duty. Gavin identified herself to Jeff and said that she would not be there
on Monday and that she had gone through all the steps to reach her managers and was not able to
reach anyone. I credit Gavin’s testimony.
25
The record is clear that prior to July 2, 2010, banquet employees requested time off
through filling out their preference sheets.34 No other forms were required by Respondent. It
was not until after Respondent refused to recognize the Union on July 2, 2010, that it changed
the policy in the banquet department. In addition, the record is clear that scheduling of
employees in the banquet department was based upon seniority under the collective-bargaining 30
agreement. The most senior employees were given priority in the shifts requested and in taking
days off. As set forth in more detail below, the record reflects that employees requested days off
on their preference sheets and were not required to submit additional documentation.
Banquet employees Gavin, Joanna Littau, Mary Jo Audette, and Vicky Williams testified 35
without contradiction that employees requested days off on the preference sheets without having
to fill out any other forms.
Audette testified that after July 2010, when preference sheets were no longer being used
by Respondent, she only had to notify Mathers orally if she had to be out of town for her other 40
job and Mathers would not schedule Audette for that week. Mathers never told Audette she had
to fill out any paperwork in addition to these oral requests.

33 Tr. 643, L 15.
34 GC Exhs. 26 and 27.
JD(SF)–22–13
23
In February or March 2011, Audette missed a scheduled shift. Audette called Mathers
and apologized and Mathers told Audette not to worry about it. Audette was not disciplined for
missing the shift.
Contrary to Respondent’s assertion in Gavin’s reprimand, the record reflects that banquet 5
servers take time off during the busy season. Audette took time off in the fall and winter, Sue
Kennedy took time off from October 2010 through March 2011, and Banquet Captain Carmelita
Muse took time off during the week of Christmas in 2010.
b) The appraisal
10
Over the course of this meeting Mathers reviewed each section of Gavin’s 2010
evaluation. In reviewing the section of Gavin’s appraisal dealing with Quality and Quantity of
Work, Mathers read the comments that stated “You try to finish your duties that are assigned
timely but I have witness (sic) you doing union work on the time clock.” 35 When Gavin denied
doing union work on the clock, Mathers said she had seen Gavin doing it but could not give 15
Gavin a specific example.
Gavin had received annual performance evaluations from Respondent and its
predecessors for many years. The evaluation form has a numerical grading formula from 1 to 4
points in six categories. A marginal grade is represented by the number 1. Acceptable is 2. 20
Commendable is 3 and Outstanding is 4. Her September 2010 evaluation was all 1’s and 2’s,
resulting in an overall grade of acceptable.
In prior year’s evaluations Gavin had received much higher scores. In her 2007
appraisal36 Gavin’s supervisors at Respondent had given her all commendable grades. Her 2008 25
appraisal37 likewise contained an overall commendable rating. However, in Gavin’s 2009
appraisal38 her scores slipped to only acceptable ratings. Included in the 2009 appraisal was the
comment, “You also become preoccupied with conducting union business on the job which
affects your productivity. Your goal is to not allow for outside interests to interfere with
department productivity.” The evaluation contains the additional comment, “You interact 30
positively with very few members on the team. You regularly voice negative comments on
associates, department procedures and management.” It should be noted that Gavin was the
union shop steward for the hotel at this time.
The analysis35
Complaint paragraphs 19(c) and (d) allege that on September 24, 2010, Respondent gave
Gavin a poor evaluation and on November 3, 2010, disciplined Gavin.
To establish a violation of Section 8(a)(3) of the Act, the General Counsel must prove, by 40
a preponderance of the evidence, that an individual’s protected activity was a motivating factor
in the employer’s action. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Once the General Counsel makes this showing, the

35 GC Exh. 29, p. 2.
36 GC Exh. 30.
37 GC Exh. 31
38 GC Exh. 32.
JD(SF)–22–13
24
burden of persuasion then shifts to the employer to prove its affirmative defense that it would
have taken the same action even in the absence of the protected conduct. To sustain its burden
the General Counsel must show that the employee was engaged in protected activity, that the
employer was aware of that activity, and that the activity was a substantial or motivating reason
for the employer’s action.5
The General Counsel may meet its Wright Line, supra, burden with evidence short of
direct evidence of motivation, i.e., inferential evidence arising from a variety of circumstances
such as union animus, timing or pretext may sustain the Government’s burden.
10
Furthermore, it may be found that where an employer’s proffered nondiscriminatory
motivational explanation is false, even in the absence of direct evidence of motivation, the trier
of fact may infer unlawful motivation. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966); and Fluor Daniel, Inc., 304 NLRB 970 (1991).
15
Motivation of antiunion animus may be inferred from the record as a whole, where an
employer’s proffered explanation is implausible or a combination of factors circumstantially
support such inference. Union Tribune Co. v. NLRB, 1 F.3d 486, 490–492 (7th Cir. 1993). Direct
evidence of union animus is not required to support such inference. NLRB v. So-White Freight
Lines, Inc., 969 F.2d 401 (7th Cir. 1992). If it is found an employer’s actions are pretextual, that 20
is, either false or not relied on, the employer fails by definition to show it would have taken the
same action in the absence of the protected conduct and it is unnecessary to perform the second
part of the Wright Line analysis. Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982), Metropolitan Transportation Services, 351 NLRB 657, 659 (2007).
25
Respondent was aware of Gavin’s union activities including membership on the Union’s
negotiating committee, membership on the Union’s Executive Board, shop steward, health and
welfare trust member, participation in union rallies and union button distribution. Respondent’s
animus toward its employees’ union activity has been well established here and in Remington I.
General Counsel has established its burden under Wright Line and the burden shifts to 30
Respondent to show Gavin’s disciplinary action is based not on her union activity but upon her
failure to fill out the proper leave forms prior to requesting days off.
c) The discipline
In August Gavin had given Respondent notice on her preference sheet for September and 35
October 2010, that she would be off October 14–18, 2010. Moreover, on the same sheet she
indicted she was unavailable on Mondays. Nevertheless, Respondent scheduled Gavin to work
on October 11, a Monday and October 18. I have found below that Respondent’s unilateral
discontinuance of the use of preference sheets in scheduling bargaining unit employees violated
Section 8(a)(5) of the Act. Respondent cannot benefit from its unlawful activity by claiming that 40
Gavin failed to fill out the proper paperwork for time off. As the record reflects, until the
unlawful July 2010 withdrawal of recognition, the preference sheet was the only required
paperwork for requesting days off without pay.
Moreover, Mathers told Gavin it was ok that she not work the October 11 shift when she 45
learned of the flood in Gavin’s home. In addition, the disparate treatment received by Gavin
when compared with Audette, suggests pretext and is evidence of Respondent’s discriminatory
JD(SF)–22–13
25
motive. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966); Keller Mfg. Co.,
237 NLRB 712, 717 (1978).
Respondent violated Section 8(a)(3) of the Act when it disciplined Gavin for allegedly
not notifying Respondent ahead of time of her unavailability for two shifts. 5
d) The evaluation
Poor evaluations that are based on discriminatory motive violate of Section 8(a)(3) of the
Act. DHL Express, Inc., 355 NLRB 680, 699 (2012); Parkview Hospital, 343 NLRB 76, 76
(2007); Mammoth Mountain Ski Area, 342 NLRB 837, 842–845 (2004).10
Gavin’s poor evaluation in 2010, was part of an ongoing effort on the part of Respondent
to discriminate against her because of her union activity. Respondent had already disciplined
Gavin in March 2010, for handing out union buttons. Her November 2010 discipline for failing
to fill out paperwork for time off was part of that continued effort. The poor appraisal was yet 15
another step. After having glowing appraisals for several years, with the advent of the conflict in
the hotel between Respondent and the Union, Gavin’s appraisals not only suffered but began to
reflect Respondent’s animus toward her union activity. Included in the 2009 appraisal was the
comment, “You also become preoccupied with conducting union business on the job which
affects your productivity. Your goal is to not allow for outside interests to interfere with 20
department productivity.” The 2010 evaluation contains the additional comment, “You interact
positively with very few members on the team. You regularly voice negative comments on
associates, department procedures and management.” Those comments together with the animus
in her two reprimands reflect the causal link between Gavin’s union activity and her poor
evaluation. 25

Respondent violated Section 8(a)(1) and (3) of the Act when it issued Gavin a poor
evaluation on November 3, 2011.
b. The April 14–15, 2010 discipline of Ana Rodriguez, Audelia Hernandez, and
Shirley Grimes30
Ana Rodriguez was Respondent’s housekeeping supervisor, a bargaining unit position,
since 2001. Rodriguez was a member of the Union’s negotiating committee from 2009 until she
quit in September 2010. Rodriguez attended several union rallies, including in the cafeteria in
April 2010, where the Union brought “8(a)(1)” cupcakes during break periods in an effort to tell 35
employees they could talk about the Union during nonwork time. Rodriguez also wore a union
button to work.
In March or April 2010, Rodriguez handed out a revocation form39 for employees to sign
revoking their support for the decertification petition. She gave the forms to about four or five of 40
her coworkers in the cafeteria and in the hallway by the time clock before work. Rodriguez also
spoke with a coworker named Neticia about the forms while she was working and asked Neticia
if she would like to keep the Union. Rodriguez told her that she had a paper that she could sign

39 GC Exh. 18.
JD(SF)–22–13
26
if she wanted to keep the Union. Neticia said that she was going to think about it. There is no
evidence that Rodriguez showed the form to Neticia.
On April 14, 2010, Rodriguez was called to Artiles’ office where Fullenkamp and Artiles
gave her a written reprimand.40 The reprimand stated:5
On Thursday and Friday; 4/8-9/10, it was reported by several associates that you, during
your work time, approached them during their work time while they were on the clock,
and asked them to sign a document regarding union issues. . . .You must stop this
behavior and action immediately.10
You are in violation of Remington policies, as well as the hotel CBA. Specifically you
are in violation of the Solicitation policy, section XXII of the handbook stating associates
may not solicit while they are engaged in the performance of work tasks, nor may any
associate be solicited while working. You also violated section IX, Harassment in the 15
Workplace, because while on duty you verbally harassed and intimidated other associates
by trying to get them to sign a document that is not work related. You are also in
violation of Associate Rules and regulations by conducting personal business on
company time and asking other associates to help you. You further violated Associate
Rules and Regulations by not confining your presence in the hotel to the area of your 20
assignment and work duties. . . .
* * *
If you continue in this behavior or action, or there are any other complaints of this nature 25
which are fond to be valid, it will result in your immediate dismissal. . . .
Artiles then told Rodriguez that he was not paying her to do union work. Rodriguez said
what are you talking about and Artiles replied that people said you are collecting signatures for
the Union. When Rodriguez asked him to bring those people to her, Artiles said that he did not 30
have to give Rodriguez any proof about anything. Other than the employee name and the
signature lines, the formal notice of counseling issued to Rodriguez is identical to the one issued
to Grimes and Hernandez. I credit Rodriguez’ testimony.
Rodriguez and refused to sign the discipline and was not asked any questions by Artiles 35
or Fullenkamp about this incident before she received the discipline.
Respondent’s porter Audelia Hernandez had worked for Respondent and its predecessors
for 9 years. Hernandez was a member of the Union and participated in the union rallies in 2010.
40
On April 14, 2010, Hernandez received the identical written discipline form41 Ana
Rodriguez had received, as discussed above. Hernandez was also called to Artiles office with
Fullenkamp. Artiles said managers and workers are saying you are distributing papers for the
Union. Hernandez responded she had never been distributing any papers from the Union and
refused to sign the discipline. Artiles said there were many cameras in the hotel and more to be 45

40 GC Exh. 117.
41 GC Exh 53.
JD(SF)–22–13
27
installed and he could talk to her further about this incident. Hernandez replied that was good.
Artiles said with or without the union he could dismiss anyone he wanted. He wondered why
people with so many years with Respondent would risk their jobs to continue engaging in union
activities. Artiles refused to provide Hernandez with the names of her accusers. Artiles’
statements are unrebutted and I credit Herndandez.5
Respondent’s Banquet Captain Shirley Grimes had worked for Respondent and its
predecessors since July 1999. Grimes, a member of the Union, attended the rallies in 2010, and
handed out union buttons to employees before work. The Union asked Grimes to pass out the
same union revocation42 form Ana Rodriguez had passed out on breaks, before and after work. 10
During a morning break in the employee cafeteria, Grimes asked several employees to sign the
form.
On April 15, 2010, Grimes’ banquet manager told her she had to go to the general
manager’s office. Once there, Grimes met with Artiles and Fullenkamp. Artiles gave Grimes a 15
written warning43 identical to those given to Rodriguez and Hernandez. Artiles told Grimes
several employees said she was passing out the union revocation form in other break areas of the
hotel on the clock and that would not be allowed. Grimes denied passing out petitions in other
areas of the hotel on the clock. Grimes asked Artiles if he included on the clock while she was
on break. Artiles said, “well, you’re clocked in, aren’t you.”44 I credit Grimes.20
Kitchen employee Somchai Hill’s unrebutted testimony established that, in the spring of
2010, he was asked by Mejia, in front of a supervisor, to sign the decertification petition while he
was on the clock. Engineer Dexter Wray testified that in mid-May 2010, his supervisor,
Emmsley Senior had solicited his signature as well as bellman Joel’s for the decertification 25
petition on multiple occasions while on the clock. In Remington I, Judge Meyerson found that
Emmsley Senior solicited employees to sign a decertification petition. Respondent’s managers
participated in solicitation of the decertification petition on the clock.
The analysis30
Complaint paragraphs 20, 21, and 22 (a) allege that on about April 15, 2010, Respondent
disciplined employees Rodriguez, Hernandez, and Grimes.
Grimes, Hernandez, and Rodriguez were disciplined for engaging in union activity by 35
distributing the revocation forms. Since their discipline was “intertwined with the union and the
protected concerted activity,” a violation may be found based on this casual link alone. Felix
Industries, 331 NLRB 144, 146 (2000); Nor-Cal Beverage Co., 330 NLRB 610, 611–612 (2000).
An analysis under Wright Line is not necessary. Under Felix Industries, the only issue that
remains is whether the three employees did anything while engaged in that activity that would 40
cause them to lose the protection of the Act under Respondent’s theory that the three employees
solicited signatures while on the clock and in a harassing manner.

42 GC Exh. 76.
43 GC Exh. 77.
44 Tr. 1343, L 3.
JD(SF)–22–13
28
Other than the disciplinary forms, Respondent provided no evidence to support its
assertions. Further, the evidence reflects that the three employees were disciplined for violating
Respondent’s overbroad rules as each discipline states:
You also violated section IX, Harassment in the Workplace, because while on duty you 5
verbally harassed and intimidated other associates by trying to get them to sign a
document that is not work related. You are also in violation of Associate Rules and
regulations by conducting personal business on company time and asking other associates
to help you. You further violated Associate Rules and Regulations by not confining your
presence in the hotel to the area of your assignment and work duties. . . . 10
Respondent’s true motives are further suspect since no investigation was conducted and
the three discriminatees were not given an opportunity to explain their side of the case before the
discipline was issued. In Arkema, Inc., 357 NLRB No. 103 slip op at 1–2 (2011), an employee
received a written reprimand, based on the company’s harassment policy, for urging a fellow 15
employee to vote no in a decertification election. The Board found that the employer violated
the Act by issuing the discipline, and concluded that the ALJ correctly applied the Burnup &
Sims analysis as the employer did not have an honest belief that the employee engaged in
misconduct during the protected activity. The Board found that the employer failed to
investigate the incident, failed to allow the employee to refute the allegation and refused to 20
identify the alleged victim, to inform the employee when the incident took place, or provide any
of the ordinary information that would have given him a fair chance to defend himself.

Moreover, there is substantial evidence that Respondent allowed and encouraged
solicitation on the clock with regard to the decertification petition and is further evidence of 25
Respondent’s true motive. Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999).
Here, Respondent failed to give the discriminates an opportunity to defend themselves,
disciplined them based upon overbroad rules, allowed other employees to engage in similar
antiunion solicitation and therefore failed to show that it had honest belief that Grimes, 30
Hernandez, and Rodriguez had solicited employee signatures on working time in a harassing
manner. I find that Respondent violated Section 8(a)(1) and (3) when it disciplined Grimes,
Hernandez, and Rodriguez.
c. Shirley Grimes January 19, 2011 discipline
35
Respondent’s Banquet Captain Grimes worked for Respondent since 1999. She had been
a banquet captain for about 10 years. Her supervisor was Cindy Mathers. Grimes was involved
in union activities, including attending union rallies in 2010, at the hotel and handing out union
buttons. Rydin ordered Grimes to take off her union button in July 2010, and she was unlawfully
disciplined for handing out union revocation forms in April 2010. 40
On January 19, 2011, Grimes received a written reprimand45 for insubordination in
refusing the order of the Catering Manager Irene Kelly to clean the dance floor and window sills
in a banquet room being set up for an event. The reprimand states that Grimes told the catering
manager, “no, that’s not our job—it is housekeeping!”45

45 GC Exh. 78.
JD(SF)–22–13
29
Grimes received the reprimand from Mathers and Fullenkamp. Grimes denied refusing
the order to clean the dance floor and window sills and told Mathers and Fullenkamp that it was
Jun Sangalang who made that statement. Fullenkamp had a statement from Kelly that stated it
was Grimes who said, “That’s not our job it is housekeeping. You need to call housekeeping”465
Neither Mathers nor Fullenkamp gave Grimes a chance to tell her side of the story. Fullenkamp
told Grimes to resign before she had to fire her. When Grimes said she was not resigning,
Fullenkamp said that she should have been fired a long time ago.
The events leading up to this reprimand occurred on about January 7, 2011. Grimes and 10
Sangalang set up a room for an evening reception when the Catering Manager Kelly said the
dance floor needed to be mopped and the window sills cleaned. Sangaland testified that it was
he who told the catering manager that it was not their job but housekeeping’s and she should call
housekeeping. Sangalang testified that he was never asked about this incident and he was not
disciplined for his part in the incident. Grimes nevertheless cleaned the sills. 15
Fullenkamp admitted that she did not speak to Grimes to get her side of the story until
she was issuing the discipline to Grimes. Fullenkamp admitted further that she did not speak to
Sangalang about the incident until after she had issued the discipline to Grimes. She testified
that Sangalang told her he could not recall the event. For the reasons I have discussed above, 20
I do not find Fullenkamp to be a credible witness. I credit Sangalang whose testimony was given
in an honest and forthright manner and whose demeanor suggested he was without guile.
Analysis
25
Complaint paragraph 22(b) alleges that on about January 19, 2011, Respondent
disciplined Grimes.
General Counsel has established its burden under Wright Line that Grimes’ reprimand
violated Section 8(a)(3) of the Act. Grimes’ union activities were well known to Respondent at 30
the time she was disciplined. Respondent’s animus toward Grimes’ union activities has also
been established as a result of her prior unlawful discipline and Respondent’s order for her to
remove her union button. The burden shifts to Respondent to show in its defense it would have
disciplined Grimes despite her union activity.
35
Respondent’s defense that Grimes was insubordinate in her comments to Kelly is a sham.
Fullenkamp did not fully investigate this incident. Respondent assumed Kelly was correct even
though Grimes and Sangalang denied Grimes was insubordinate. Fullenkamp did not even talk
to Sangalang. Had she done so she would have known it was he not Grimes who uttered the
comments to Kelly. 40
Fullenkamp’s sham investigation reflects Respondent’s discriminatory motive. The
Board may infer unlawful motive based on an employer’s failure to conduct a meaningful
investigation into the alleged wrongdoing and failure to give the employee the opportunity to
explain their actions before issuing discipline. New Orleans Cold Storage & Warehouse Co., 45
326 NLRB 1471 (1998); Rood Trucking Company, 342 NLRB 895 (2004).

46 R. Exh. 31.
JD(SF)–22–13
30
I find that Respondent’s defense fails and that it violated Section 8(a)(1) and (3) when it
issued this disciplinary action to Grimes.
d. The Dexter Wray discipline
5
Respondent has employed Dexter Wray as an engineer to perform electrical and
maintenance work, as well as plumbing from May 2008, until his termination on
October 27, 2010. His immediate supervisor was Ed Emmsley, Sr.
Wray was a union member and member of the Union’s negotiating committee. He 10
participated in the Union’s 2010 rallies at the hotel and spoke at the July 6, 2010 rally in front of
the hotel.
It was unrebutted that in March 2010, Emmsley Senior told Wray that Artiles wanted to
get rid of Wray because of his union activity. As noted above, in August 2010, Emmsley warned 15
Wray not to testify at the hearing in Remington I about Emmsley’s involvement in circulating
and soliciting signatures on the decertification petition.
i. The May 10, 2010, pool overflow incident and discipline
On May 10, 2010, Wray received a written reprimand47 concerning a fountain/pool 20
overflow in the hotel lobby. During his meeting with Emmsley Senior, Wray explained that he
did not fill the pool, that it was another employee named Sam. Wray said that he did not know
the pool was being refilled and that Sam had taken it upon himself to refill the pond. Emmsley
said it was Wray’s responsibility since he was the senior engineer. It is undisputed that while he
was showing Sam how to drain and clean the pool, Wray was called away on another job to shut 25
down the water for the entire hotel so that a valve could be repaired. While Wray never told Sam
to refill the pool, Sam refilled the pool in Wray’s absence. Sam was never written up nor did
Sam testify.
About a week later in the engineering shop Emmsley approached Wray and told him that 30
if he signed the decertification petition, the pool overflow write up would go away.
Analysis
The complaint does not allege that this incident violated Section 8(a)(3) or (4) of the Act. 35
However, the allegation is closely related to the charge involving Wray’s other discipline
discussed below and was fully litigated at the hearing. Airborne Freight Corp., 343 NLRB 580,
581 (2004); Pergament United States, 296 NLRB 333, 334 (1989).
Once again General Counsel has satisfied its burden under Wright Line that Respondent 40
violated Section 8(a)(1) of the Act in that Wray had union activities well known to Respondent
and Respondent has demonstrated hostility to Wray’s protected activity.

47 GC Exh. 36.
JD(SF)–22–13
31
Respondent’s defense is that it was Wray’s responsibility to ensure that the pool was
refilled properly. If it is found an employer’s actions are pretextual, that is, either false or not
relied on, the employer fails by definition to show it would have taken the same action in the
absence of the protected conduct and it is unnecessary to perform the second part of the Wright
Line analysis. Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.5
1982), Metropolitan Transportation Services, 351 NLRB 657, 659 (2007).
In this case, Respondent’s defense is pretext. Respondent blames Wray for the pool
overflow even though there is no evidence that he caused it. The unrebutted testimony reflects
that Sam, without Wray’s knowledge, while Wray was absent on another essential task, took it 10
upon himself to refill the pool without Wray’s knowledge. The pool incident was a convenient
excuse to fulfill Emmsley’s March 2010 statement that Artiles wanted to get rid of Wray because
of his union activity. I find that in issuing Wray the May 10, 2010 discipline, Respondent
violated Section 8(a)(3) of the Act.
ii Swearing incident and discipline15
On July 7, 2010, Wray was given another written warning48 for swearing. The warning
states that Wray:
“used company equipment (radio) in an unauthorized manner to communicate non hotel 20
information. His communication was witnessed by two individuals and heard by several
on the radio. Dexter was heard by a corporate officer saying loudly to another employee-
‘I don’t need to put up with this shit.’
* * *25
It is against company policy to use company equipment, supplies, etc for non company
business. It is also a violation of policy to use profane, obscene or offensive language on
the property at any time.
30
When Wray was given this warning by Fullenkamp and Emmsley Senior, Wray
said that he was in the back of the house talking to another employee and Spa Director
Lorraine Park was 10 to 12 feet away. There is no dispute that Wray used the word
“sh—t.” There were no hotel guests in the vicinity. Wray’s two way radio was on at the
time he uttered these words although he was not speaking into the radio.35
General Counsel contends that the record reflects that Respondent disparately applied its
rules in disciplining Wray. Respondent on the other hand contends there was no disparate
treatment. Respondent contends that the General Counsel’s examples of profanity uttered by
employees and management was somehow different from the profanity used by Wray since the 40
General Counsel’s examples of disparate conduct occurred in nonpublic areas of the hotel and/or
were not reported by the offended employee. When a complaint was made, discipline was
issued.

48 GC Exh. 37.
JD(SF)–22–13
32
Bellman Troy Prichacharn, Wray, and banquet employees Sam Tiger and Vicky Williams
testified, it was common for employees at the hotel to use profanity. Tiger testified that although
he frequently swore in front of his supervisor, Banquet Manager Cindy Mathers, he has never
been counseled or disciplined by Mathers for use of profanity.
5
Both Elda Buezo and Ana Rodriguez complained to Canas about housekeeping employee
Lumni Deskaj swearing at them. In February 2010, Housekeeping Supervisor Ana Rodriguez
reported to Director of Housekeeping Canas that she heard Lumni repeatedly say “oh my God,”
“sh—t,” and “motherf—cker,” on his cell phone in the 14th floor hallway just outside guest
rooms. In the summer of 2010, Rodriguez told Canas that she heard from housekeeper Maria 10
Hernandez that Lumni was continuing to swear loudly in guest areas. Contrary to Respondent’s
contention, Lumni was not disciplined for these incidents. Lumni was disciplined for incidents
in December 2009, and November 2010.49
The record also reflects that managers, like Wray, used profanity in the presence of other 15
employees, in public areas and over the hand held radio. In the summer of 2010, Director of
Housekeeping Canas, said in Spanish to housekeeping employee Ana Rodriguez, motherf—ckers
(cabrones) and cunt (coño) on more than once occasion. During the summer of 2010, Canas said
to housekeeping employee Maria Hernandez, who was changing linens in a public guestroom,
motherf—cker (cabrones). In April or May 2010, in a guest suite Canas said to Wray, I’ll be a 20
son of a b—tch. In May 2010, Canas at the loading dock of the hotel told Lumni to stop
bullshitting. In 2010, in a public corridor of the hotel Canas, with housekeeping employees Luz
Maria Espinosa Sabala present, said: “Keep going, keep going, keep going until you come in
bed.”50 Later that day Carlos repeated this profanity to female employee Espinoza Sabala later
that day while cleaning a guest room. 25
It was unrebutted that bellman Prichacharn in the summer of 2010, heard General
Manager Artiles yell into his radio in the hotel lobby: “What the hell is going on? Where—
where is security?”51
30
In addition front Desk Manager Jeff Brown used the word “f—ck” and “f—
cking” in regular conversation in various locations around the hotel during 2010. In late
2009 to early 2010, in the engineering shop Assistant Manager Julie Kopkechka said to
Wray, engineering employee Ken and the assistant banquet manager, “Come go with me
so I can get this drunken son of a b—tch of out this building.”52 Again in January 2010,35
Kopkechka told Wray, “being that drunken b—tch won’t go home then I got to fire
her.”53
It is ironic that the Spa Director Park, who reported that Wray had used profanity, used
profanity herself. On July 23, 2010, Wray was on the elevator with Park, an engineer named 40
John, and two housemen named Harka and Lumni. Park called Harka a “bullsh—tter” in front of
the group. Wray complained about Park’s language to Fullenkamp. Respondent claims that a

49 R. Exhs. 24 and 25.
50 Tr. 1295, LL 14–15.
51 Tr. 1557, LL 1–25 and Tr.1558, LL 1–12.
52 Tr. 355, LL 21–22.
53 Tr. 357, LL 8–9.
JD(SF)–22–13
33
memo54 dated July 30, 2010, is a discipline for Park’s use of profanity. However, the memo is
devoid of any adverse consequences for Park.
Analysis
5
Complaint paragraph 23(a) alleges that on about July 7, 2010, Respondent disciplined its
employee Dexter Wray.
As already noted, General Counsel has established its Wright Line burden that
Respondent violated Section 8(a)(3) of the Act since Respondent was aware of Wray’s union 10
activity and has demonstrated antiunion animus toward him. If it is found an employer’s actions
are pretextual, that is, either false or not relied on, the employer fails by definition to show it
would have taken the same action in the absence of the protected conduct and it is unnecessary to
perform the second part of the Wright Line analysis. Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982), Metropolitan Transportation Services, 351 NLRB 15
657, 659 (2007).
Contrary to Respondents contentions in its brief, the examples of profane language used
by other employees and managers did occur in public areas of the hotel, i.e., the lobby, public
corridors, as well as guest rooms. Respondent misrepresents the record in saying that no 20
employee complained about profanity used in their presence. Ana Rodriguez complained twice
to Canas about Lumni’s profanity without any result. The Lumni disciplines involved other
incidents from December 2009, and November 2010. More significant is the use of profanity by
supervisors and managers, Canas, Artiles, Park, Brown, and Kopkechka. Indeed, Artiles use of
profanity is more egregious than Wray’s. Unlike Wray, Artiles was intentionally speaking into 25
the radio that could be heard all over the hotel and was the highest ranking manager at the hotel.
At best Respondent was inconsistent in enforcing its policy regarding use of profanity at worst it
encouraged use of profanity through the example of its managers and supervisors. I find that
Respondent’s discipline of Wray for use of profanity was a pretext to disguise its true object of
trying to get rid of union adherent Wray. In so doing Respondent violated Section 8(a)(3) of the 30
Act.
iii. The gambling incident and Wray’s termination
On August 23 and 24, 2010, Wray gave testimony55 adverse to Respondent’s interests at
the hearing in Remington I.35

On October 23, 2010, Wray came into work at about 6:30 a.m. for his 7 a.m. shift. When
he arrived, security guard Ed Emmsley Jr., Emmsley Senior’s son, asked Wray him if he had his
laptop. After Wray said that he did, Emmsley Junior asked Wray if he could transfer him
$100,000 in play money poker chips. Both Wray and Emmsley, Junior played poker on line at a 40
site called PokerStars.com. Wray agreed and went to the break area at the back of the
engineering shop and turned on his computer to the PokerStars website. By 6:55 a.m. Emmsley
Junior had not logged on to the PokerStars website to receive the chips, so Wray clocked in at
the clock near the human resources office and began work. He left his computer on. Wray used

54 R. Exh. 43.
55 GC Exhs. 34 and 35.
JD(SF)–22–13
34
his own internet provider, Clearwire for his access to the PokerStars website that day, not the
hotel internet provider. At about 9 a.m. that day, Wray returned to the shop and found his laptop
was missing. At 11 a.m. Wray met Emmsley Senior on the 13th floor of the hotel. Wray asked
if Emmsley had seen his laptop and Emmsley replied “oh that’s your laptop. I’m going to have
to send you home.” When Wray asked for what Emmsley said “for gambling at work.”56 5
Emmsley explained that he was not gambling at work, that he was performing a variety of tasks
during the morning. Emmsley said he would investigate.
On about October 25, 2010, Emmsley claims that he reviewed October 23, 2010,
recordings of cameras located in the hallway adjacent to the entrances to the engineering rooms 10
beginning at 6 a.m.57 According to Emmsley, the recordings showed that Wray first entered the
engineering suite of three interconnected rooms58 at about 6:58 a.m. Next Wray left the
engineering rooms at 8:02 a.m. Wray reentered the engineering offices at 8:17 a.m. and left at
8:32 a.m. At 8:38 a.m. Wray reentered engineering and left at 8:54 a.m. At about 8:50 a
corporate engineering vice president named Faren Ardis entered the engineering room. Ardis 15
found Wray’s laptop opened to a poker website.59 It is undisputed that there was an entrance to
the engineering offices that the surveillance cameras could not capture.
On October 27, 2010, Wray was called to a meeting with Emmsley and Fullenkamp in
her office. Emmsley told Wray that since he had three write ups in the last 6 months he had to 20
terminate him. Wray was never asked for his side of the story.
Wray’s termination document60 states in part:
On the morning of October 23, Dexter set up his personal lap top computer in a back 25
storage area of the engineering shop. A corporate representative saw the laptop while
searching for vinyl in the area. The laptop was hidden behind several pieces of furniture
and out of plain view from anyone entering either doorway of the shop. The laptop
screen was open to a poker website and the screen indicated that Dexter was logged in
and had been playing. 30
The use of cell phones, email devices, etc. are prohibited from use during working hours.
Additionally associates may not use company equipment, supplies, etc for personal
purposes and access to the internet was through the Hotel’s Zenet internet access.
Conducting personal business during work hours and gambling on company time or 35
premises are also prohibited.
. . .
There was a violation of several company policies.

56 Tr. 339, LL 23–25.
57 No copy of the recordings was produced for the record. The only disk of the October 23 surveillance cameras
was given to Artiles. Respondent’s counsel asserts that Respondent could not find the disk. However, Artiles was
never contacted by counsel to see if he had the disk. (Tr. 2870, LL 1–11.) The only evidence of the substance of the
recordings is Emmsley, Senior’s testimony and a summary he produced listing times Wray entered and left the shop
on October 23. (R. Exh. 36.) Given the failure to produce the recording and Emmsley’s lack of credibility, absent a
copy of the recording, I am not willing to believe Emmsley’s assertion that Wray was not in the engineering shop
before 6:58 a.m.
58 R. Exh. 37.
59 R. Exhs. 4 and 5.
60 GC Exh. 39.
JD(SF)–22–13
35
. . .
Dexter has had two other disciplinary actions in the last 5 months and this will be
his third within that time frame. Because of the multiple violations as well as the
serious nature of same in this third disciplinary action, Dexter’s employment will
be terminated consistent with the Involuntary Termination provision in the 5
Associate Handbook.
On January 1, 2012, Wray received an email61 from the PokerStars website indicating
that there were no real money poker games played from October 22–24, 2010.
10
Analysis
Complaint paragraph 23(b) alleges that on about October 24, 2010, Respondent
discharged Wray in violation of both Section 8(a)(3) and (4) of the Act.
15
Section 8(a)(4) of the Act makes it unlawful, “to discharge or otherwise to discriminate
against an employee because he has file charges of given testimony under this Act.” In order to
find a violation of Section 8(a)(4) of the Act, a Wright Line analysis is followed. American
Garden’s Mgmt. Co., 338 NLRB 644, 645 (2002). The timing of discharges may support a
finding that the discharges were motivated by the employee’s testimony before the Board. Gary 20
Enterprises, Inc., 300 NLRB 1111, 1113 (1990).
As with the two previous disciplines Respondent gave to Wray in 2010, here I find that
Counsel for the General Counsel has satisfied its Wright Line burden that Respondent violated
the Act because Respondent was well aware of Wray’s union activity and his adverse testimony 25
in Remington I and demonstrated antiunion animus toward him. Moreover, the timing of Wray’s
discharge, only 2 months after giving testimony substantially adverse to Respondent in
Remington I, suggests the motivation in his termination was his testimony before Judge
Meyerson.
30
The evidence is undisputed that Respondent did not inquire of Wray his side of the story.
Embarrassed that a corporate VP had found a laptop open to a poker website, Emmsley was
determined to discipline Wray. Had Emmsley conducted a thorough investigation, he would
have discovered that Wray was not gambling, as the January 2012 website email established, but
that he was transferring chips to Emmsley’s son, and that he was not using the hotel’s website 35
but his own to do so.
The significance of this is that assuming Wray was using his laptop, he was simply
playing a game and not gambling, since there was no money that could be won or lost. This is
also supported by Respondent’s own evidence, photos62 purportedly taken of Wray’s laptop 40
screen on October 23, 2010, that reflect he was using play money.
Respondent contends that Wray was lying when he said he did not play poker on
October 23, 2010, based upon a written statement attached to his Board affidavit. In the attached
statement Wray said that, “He got to the hotel at 6:30 a.m., so since he was there early he45

61 GC Exh. 40.
62 R. Exhs. 4 and 5.
JD(SF)–22–13
36
opened up his computer and started playing poker on it.”63 No one questioned Wray as to what
he meant by playing poker. More in depth examination may have reflected his transfer of chips
to Emmsley Junior constituted “playing poker.” Respondent also argues that a review of
surveillance cameras by Emmsley Senior establishes that Wray was gambling on his computer
the morning of October 23, 2010. I have already noted above that Emmsley is the only source of 5
what the cameras revealed and I do not find him credible. Moreover, it is undisputed that Wray
could have exited or entered the engineering rooms via an entrance that the cameras could not
detect. If Emmsley is to be believed, all the cameras show is that Wray entered and exited
engineering between 6:58 a.m. and 8:54 a.m. No one saw Wray gambling. The fact that Ardis
found a laptop open to a gambling website does not establish that Wray was doing any more than 10
he claimed, transferring play chips to Emmsley Junior. The fact that the laptop was on does not
establish that Wray was playing poker on worktime, merely that it was in an on position. The
engineering rooms were open to a host of other people, including Wray, who could have struck a
key on the laptop and turned the screen on. Thus, Respondent’s assertion that Wray was using
his laptop during working hours must also fail as there is no evidence Wray was using his 15
computer during working hours.
Respondent’s rush to judgment precluded a meaningful investigation and is further
evidence of Respondent’s unlawful motive as well as pretext. Firestone Textile Co., 203 NLRB
89, 95 (1973). Since I find Respondent’s proferred reasons for Wray’s termination were pretext, 20
it precludes finding that Respondent would have terminated Wray despite his union activities and
testimony before the Board. Golden State Foods Corp., 340 NLRB 382, 385 (2003). I find that
in firing Wray, Respondent violated Section 8(a)(3) and (4) of the Act.
e. The termination of Yanira Escalante Medrano
25
Yanira Medrano was employed as a housekeeper by Respondent for about 6 years until
her October 28, 2010 discharge. Medrano was assigned to a VIP floor that required extra care in
cleaning. She testified that she had to regularly replace up to 25 shower curtains a week. During
the relevant periods, her supervisor was Eduardo Canas. Medrano gave testimony at the
Remington I trial on September 24, 2010, about Artiles’ threatening employees with reprisals if 30
they did not sign the decertification petition and making threats to employees. Medrano refused
Artiles’ demand that she gather more signatures on the decertification petition. Artiles was
present when Medrano testified in Remington I. In addition, Medrano signed Elda Buezo’s
petition64 that Buezo gave to Respondent on October 18, 2010, protesting the suspension of Ana
Rodriguez.35
On October 28, 2010, Respondent terminated65 Medrano for creating an unsafe condition
by leaving chemicals and for unauthorized storage of hotel supplies in her locker.
On October 26, 2010, Medrano was called to meet Fullenkamp and Canas at her locker in 40
the ladies’ locker room. The contents of her locker were on the floor of the locker room
including cleaning chemicals, shower curtains, garbage bags, Medrano’s personal belongings
and a picture frame. Fullenkamp told Medrano that she had opened her locker because Audelia

63 Tr. 419, LL 24–25 and Tr. 420, line 1.
64 GC Exh. 45a.
65 GC Exh. 55.
JD(SF)–22–13
37
reported there was blood coming from the locker. Fullenkamp said you have 12 shower curtains
in your locker. Canas added that when the locker was opened they found 12 shower curtains and
chemicals. He said you are not supposed to have these in your locker. Medrano said she kept
them in her locker so she wouldn’t run out because housekeeping doesn’t have them. Canas said
if they are out they are out. Medrano said she didn’t like it when she is told she did not put 5
something in a room.
On October 28, 2010, Medrano was called to a meeting in Fullenkamp’s office.
Fullenkamp said she had to fire Medrano because of what they found in her locker. When
Medrano asked if they were firing her because she was a thief, Fullenkamp said no, not for 10
stealing. You are fired because of the chemical. It was a risk for the hotel and your coworkers.
Medrano said she was not the only one who kept cleaning chemicals in her locker. Fullenkamp
said what is important now is you. When Medrano asked when Fullenkamp told her that she was
not supposed to have cleaning chemicals or supplies in her locker, Fullenkamp made no reply.
15
The record is replete with evidence that virtually all of Respondent’s housekeeping
employees kept both cleaning chemicals and various supplies for the hotel rooms in their lockers
before Medrano was fired. It is further clear that Respondent’s supervisors were aware of this.
Fullenkamp made regular unannounced inspections of the housekeepers’ lockers in which she
would have seen the chemicals and supplies. At the beginning of the day, the housekeepers went 20
to their lockers, picked up their cleaning chemicals and supplies and then went to a meeting
where they were given their room assignments for the day. At the assignment meetings the
supplies and chemicals were in bags that were open at the top and clearly displayed the cleaning
bottles and supplies. Canas was present at these meetings and would have seen the
housekeepers’ bags.25
Analysis
General Counsel has established that Medrano’s testimony in Remington I and her union
activity known to Respondent were motivating factors in her termination. Medrano’s 30
termination came about 1 month after her testimony in Remington I and within 10 days of
signing the petition protesting Ana Rodriguez’ suspension. The timing of discharges may
support a finding that the discharges were motivated by the employee’s testimony before the
Board. Gary Enterprises, Inc., 300 NLRB 1111, 1113 (1990).
35
Respondent’s position that it was “shocking to management” that Medrano stored so
much hotel property in her locker is simply pretext. Its contention that the amount of items
stored in her locker appeared “to be staging hotel property there in relation to an ongoing theft
of this property” is simply unsupported by the record.
40
Respondent’s defense is no more than a bald faced pretext. Respondent was aware of and
permitted its employees to keep a wide range of cleaning supplies and guest room supplies in
their lockers. Moreover, there is no evidence that until Medrano was fired Respondent ever told
its housekeeping employees that they could not store cleaning or guest room supplies in their
lockers.45
Even if Medrano violated Respondent’s handbook rule by keeping hotel guest room
supplies in her locker, the evidence established this rule was never followed or enforced until the
JD(SF)–22–13
38
supplies were found in Medrano’s’ locker. Respondent was unable to offer any examples of
employee discipline for violating a rule dealing with keeping hotel supplies in an employee’s
locker.

Since I find Respondent’s defenses to Medrano’s termination are pretext, Respondent 5
may not meet the Wright Line burden, and I find that Respondent violated Section 8(a)(3) and (4)
of the Act in discharging Yanira Medrano. Cincinnati Truck Center, 315 NLRB 554, 556–557
(1994).
f. The schedule change, reduced hours, and discharge of Elda Buezo
10
Elda Buezo was employed as a housekeeper by Respondent and its predecessors since
1989. Buezo worked part time from 7 a.m. to noon Monday through Friday for 15 years. She
was a union member since 1989 and a member of the negotiating committee from 2009 to 2011.
Buezo attended the union rallies in 2010 and wore a union pin at work. When coworker Ana
Rodriguez was fired by Respondent in September 2010, Buezo spoke to several coworkers and 15
prepared a petition66 that she gave to Fullenkamp on October 11, 2010, asking that Rodriguez be
reinstated.
After submitting the petition, on October 18, 2010, Buezo was called to a meeting with
Fullenkamp and Canas. Fullenkamp told Buezo that this was not a reprimand but that 20
Respondent paid Buezo to do her job and go home. Fullenkamp added, we don’t pay you to do
activities not related to work. When Buezo asked what Fullenkamp meant, either Fullenkamp or
Canas said you are collecting signatures. When Buezo said who says, Fullenkamp replied
coworkers. When Buezo demanded that the coworkers be identified, Fullenkamp refused to
identify the coworkers. When Buezo asked if she could talk to anyone at work, Fullenkamp 25
replied that Buezo should talk about work related things and that she was not allowed to do
anything inside of the hotel related to the Union. Fullenkamp told Buezo to just work and leave.
Fullenkamp reaffirmed her comments to Buezo in a February 8, 2011 memo67 to Buezo that
stated in part:
30
Elda, you must have misunderstood when you were advised in the HR office after
the Ana petition was submitted. You were told to keep all union activities off
company paid time. You are mistaken in your statement “that I not allowed doing
any activity related to the union.” Of course you can engage in union activities,
just do them on your own time and off Remington property.35
i. The schedule change and reduction of hours
In February 2011, Buezo had a conversation with her Supervisor Yolanda Hanna as to
why Buezo had been reassigned from her regular duties on the 14th floor of the hotel. Hanna 40
told Buezo that she was part time and Hanna needed someone who worked 8 hours. Buezo said
she had much seniority and Hanna replied there was no more seniority at the hotel. Hanna told
Buezo she would need her to work 8 hours during the high season from May to October 2011.

66 GC Exh. 45a.
67 GC Exh. 130.
JD(SF)–22–13
39
On April 15, 2011, Buezo learned that the schedule showed her as no longer part time but now
an on call housekeeping employee. An on call employee must call each day at 7 a.m. to see if
there is work for that day. Buezo spoke with Fullenkamp on April 15 and Fullenkamp told
Buezo she could not have the 14th floor rooms any longer because they needed a person to work
8 hours and this was the reason she was now on call. Fullenkamp told Buezo that they had 5
offered her 8 hours. Buezo denied she had been offered to work 8 hours and said Hanna had said
she would have to work 8 hours in the May to October busy season. It is unrebutted that Buezo
told Fullenkamp that she would work 8 hours if necessary. While Fullenkamp said they would
meet later about Buezo’s on call status, the meeting never occurred. Buezo remained in on call
status. Despite calling in every morning, from April 15, 2011, through May 19, 2011, Buezo 10
worked only five 5-hour shifts. Contrary to Respondent’s assertion, there is absolutely no
evidence that before April 15, Respondent offered Buezo an 8-hour shift or that Buezo refused to
work an 8-hour shift. Before April 15, Buezo had a regular schedule from 7 a.m. to noon
Monday through Friday for 15 years. Buezo found there were less senior employees who had a
regularly scheduled workweek. Buezo asked her Supervisor Margarita Lucero why she was on 15
call when others with less seniority were scheduled. I credit Buezo’s testimony that she was
never offered an 8-hour shift and do not credit Fullenkamp for the reasons previously stated.
ii. Buezo’s termination
It is undisputed that on May 20, 2011, Buezo called68 both housekeeping and human 20
resources and left messages that she had to go to Montana on an emergency. Buezo went to
Montana because the mother of her boyfriend of many years was dying. While in Montana the
mother died and Buezo attended the funeral. When Buezo returned from Montana on May 30,
2011, she was told there was no work. Buezo had no work assignments for June.
25
On June 7, 2011, Buezo was told to call Fullenkamp. Fullenkamp told Buezo that she
had left without telling Respondent. Buezo told Fullenkamp she had left messages saying she
had to leave for an emergency. Fullenkamp said they needed to schedule a meeting. Later that
day Buezo called Fullenkamp and asked why she needed to meet with Fullenkamp and
Fullenkamp replied that Buezo had failed to fill out a paper before leaving. Buezo said she did 30
not know there was a paper to fill out. Fullenkamp said Buezo knew she should fill out a paper.
A meeting was scheduled a few days later. Buezo cancelled that meeting and they agreed to
meet on June 14, at 8:30 a.m. Buezo also cancelled that meeting and Fullenkamp suggested a
phone meeting. Finally on about June 15, 2011, Bezo called Fullenkamp who told Buezo that
since they could not meet and Buezo failed to fill out her paperwork before she left for Montana, 35
Buezo had resigned.
Fullenkamp testified that if Buezo had come to one of the meetings that Buezo cancelled,
filled out the leave of absence form and provided Fullenkamp with the funeral program, Buezo
would not have been fired. Respondent contends that it was Buezo who resigned voluntarily. 40
However, an email chain69 between Fullenkamp and Remington Corporate Vice President Nancy
Hafner concerning Buezo’s termination dated June 6, 2011, explains why Fullenkamp insisted in
her testimony that Buezo resigned. In the email Fullenkamp asks Hafner if she can terminate

68 GC Exh. 50, page 2, Buezo’s phone bill, shows phone numbers 343–3121 and 343–3126 which are for
Respondent’s housekeeping and human resources departments respectively.
69 GC Exh. 131.
JD(SF)–22–13
40
Buezo and Hafner replies, “Yes, tell her that by failing to show up-that we consider that she has
voluntarily resigned her position. We are not terming her-she resigned.” In essence, Hafner tells
Fullenkamp, yes you can terminate her but call it a resignation. Moreover, Fullenkamp’s notes70
of her conversation with Buezo on June 15, 2011, belie her assertion that Buezo resigned
voluntarily and are consistent with the email with Hafner. The notes dated June 15, 2011, 5
reflect, “6/15 Elda called. Told her since she didn’t follow procedure & fill out correct paper
work I considered her as she resigned.” In addition Buezo’s “Termination Record”71 does not
show Buezo quit but that she was terminated. Based upon the above, I credit Buezo’s testimony
that she did not quit voluntarily and discredit Fullenkamp. I found Buezo to be a forthright and
consistent witness. While not a native English speaker, her testimony and demeanor suggested 10
she was telling the truth.
Analysis
Complaint paragraph 25(a) alleges that on about April 15, 2011, Respondent changed the 15
schedule of employee Elda Buezo from regular part time to an on call schedule. Complaint
paragraph 25(b) alleges that from April to May 2011, Respondent reduced Buezo’s hours.
Buezo’s Union and protected concerted activity and Respondent’s knowledge of that
activity is well documented. Buezo’s gave testimony adverse to Respondent in Remington I in 20
the fall of 2010, and met with Fullenkamp and Canas in October 2010, to present the Ana
Rodriguez petition. During that meeting, Canas and Fullenkamp told Buezo that she could not
conduct this protected activity while she was at work or on Remington property, demonstrating
their hostility to her protected activity.
25
On April 15, 2011, Buezo learned that Respondent had placed her in on call status after
15 years working a regular part-time schedule. This change in work schedule resulted in
Buezo’s hours being reduced from 25 hours a week to 25 hours a month.
In Queen Kapiolani Hotel, 316 NLRB 655, 664 (1995), the Board, in affirming the ALJ, 30
found that changing an employee from a regular schedule to “on call” status violated Section
8(a)(3) of the Act. I find that given Respondent’s knowledge of her union and protected activity
as well as its demonstrated hostility to its employees’ union activity, General Counsel has
established its initial burden under Wright Line.
35
Respondent contends in making Buezo on call it acted within its power under the
management rights provision of the expired collective-bargaining agreement to discontinue
Buezo’s 5-hour schedule when Buezo declined the opportunity to work an 8-hour schedule.
This is an interesting position for Respondent to take since it had by this time declared 40
impasse, ceased honoring most of the provisions of the collective-bargaining agreement and
refused to recognize the union.

70 R. Exh. 21.
71 GC Exh. 129.
JD(SF)–22–13
41
Respondent’s argument that the management rights provision of the expired and
disregarded collective-bargaining agreement somehow gave them the right to determine
schedules is misplaced. The collective-bargaining agreement containing the management rights
clause had expired. The Board consistently has held that a waiver of bargaining rights under a
management rights clause does not survive the expiration of a contract. Beverly Health and 5
Rehabilitation Services, Inc., 335 NLRB 635, 655 (2001); Buck Creek Coal, 310 NLRB 1240
(1993); Control Services, 303 NLRB 481 (1991), enfd. 975 F.2d 1551 (3d Cir. 1992), and enfd.
961 F.2d 1568 (3d Cir. 1992); Kendall College of Art, 288 NLRB l205, 1212 (1988).
Respondent’s management rights defense is mere post discrimination invention. There is 10
no evidence that Buezo ever refused to change to an 8-hour shift and when Fullenkamp asked
Buezo if she was willing to take an 8-hour shift, Buezo said that she would. Despite telling
Buezo that Fullenkamp would set up a meeting with the director of housekeeping to discuss the
possibility of Buezo working 8 hours, that meeting never took place.
15
Since Respondent’s defense for placing Buezo in on call status fails and is mere pretext,
Respondent fails to overcome its Wright Line burden to show that it would have placed Buezo in
on call status regardless of her Union and protected concerted activity. Where an employer’s
asserted reason for an adverse action is false, the Board may infer that employer is concealing an
unlawful motive. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). 20
Respondent violated Section 8(a)(1) and (3) of the Act for placing Buezo in on call status and
thereby reducing her hours.
Complaint paragraph 25(c) alleges that on about June 15, 2011, Respondent discharged
Buezo.25
As I have found with her change to on call status and reduction in hours, I find that
General Counsel has satisfied its burden of proof under Wright Line to show that Buezo’s union
activities were known to Respondent and Respondent was motivated by its demonstrated
hostility to Buezo’s union and protected activity in firing her.30
Respondent’s defense is that Buezo voluntarily resigned her post with the hotel. This is
more pretext. As seen in the emails between Fullenkamp and Hafner on June 6, 2011, and
Buezo’s termination document, Respondent found an opportunity to fire a known union adherent
and call it a resignation. Shifting explanations for adverse employee actions is evidence of 35
discriminatory intent as well as pretext. Abbey’s Transportation Services, Inc. v. NLRB, 703
F.2d 363, 372 (9th Cir. 1983); Seminole Fire Protection, Inc. v. NLRB, 306 NLRB 590, 592
(1992).
I find that in firing Buezo on June 16, 2011, Respondent violated Section 8(a)(1) and (3) 40
of the Act.
g. The August 2010 decrease in shifts for banquet employees Joanna Littau, Fay Gavin,
John Fields, and Vicki Williams
JD(SF)–22–13
42
Before Respondent’s unlawful withdrawal of recognition of the Union in July 2010, the
parties’ expired collective-bargaining agreement at article XIV, section 172 provided for use of
seniority in all departments in scheduling employees. The record is likewise clear that after July
2010, seniority was no longer considered by Respondent in making banquet department work 5
assignments. After July 2, 2010, Respondent no longer followed seniority in, among things, shift
assignments or hours of work. After withdrawing recognition from the Union in July 2010,
Fullenkamp in both her capacities as human resources director and later director of
housekeeping, Rydin as executive chef in charge of kitchen employees and restaurant servers,
Mathers as banquet manager, and Emmsley Senior as chief engineer all told their employees that 10
Respondent no longer followed seniority.
Joanna Littau
Banquet server Joanna Littau was actively engaged in union activities. She was union 15
shop steward and a member of the Union’s negotiating committee since 1998. As shown in
Respondent’s schedules from February 2010 to November 201073, Littau was sixth in seniority
on February 2010, when Judge Meyerson found Respondent unlawfully terminated her for
distributing boycott leaflets. Respondent reinstated Littau on about July 4, 2010. In August and
September 2010, Littau testified in the Remington I hearing.74 General Manager Artiles was 20
present during her testimony.
Through her preference sheets, Littau indicated she was available to work both morning
and afternoon Tuesday through Thursday, and mornings only on Friday and Saturday. Before
July 2010, Littau worked about 25 to 30 hours per week during the busy season at the hotel and 25
as much as 40 hours per week. During the slow season of June, July, and August, Littau worked
15 hours or less per week. Littau’s W-2s75 reflect that she earned $28,382.03 in 2008 and
$14,391.83 in 2009. Respondent reinstated Littau around July 4, 2010.76 Littau was listed as
sixth in seniority through the schedule beginning July 17, 2010, and she was scheduled to work
on July 23—24, 2010. 77 After the week of July 24, 2010, Respondent ceased scheduling 30
according to seniority and availability. While Littau continued to be available to work, she lost
her position of seniority and was no longer scheduled to work.78 From July 24 through
December 2010 Respondent scheduled Littau to work only on September 6, 2010, despite the
fact less senior employees were scheduled to work.79
35
In 2011 Littau’s availability did not change and she did not tell Respondent she was
unable to work. However, the record reflects that Respondent scheduled Littau less than 20
times in 2011.80 Littau’s W-2s81 reflect that her earnings were $2,107.21 for 2011.

72 GC Exh. 2, p. 14.
73 GC Exh. 28.
74 GC Exhs. 60 and 61.
75 GC Exh. 72.
76 Compare GC Exh. 28, pp. 44 and 47.
77 Ibid., at p. 50.
78 Ibid., at p. 57.
79 Ibid., at pp. 57–92.
80 GC Exhs. 71 and 73.
81 GC Exh. 72.
JD(SF)–22–13
43
Fay Gavin
Banquet server Fay Gavin was the most senior of Respondent’s banquet servers in July
2010. Her union activity is discussed above as is Respondent’s knowledge of her union activity.
I have found that Respondent has violated Section 8(a)(1) and (3) of the Act in giving Gavin a 5
poor performance review and in disciplining her on March 19, 2010, and November 3, 2010.
Before July 2010, Gavin worked 3 to 4 days a week during the high season of fall and
winter. Banquet schedules from February through May 201082 show Gavin worked an average of
2 to 3 days per week. 10
As noted above, after July 2010, when Respondent stopped scheduling by seniority and
availability, Gavin’s hours dropped dramatically. Despite being the most senior banquet server,
Respondent did not schedule Gavin to work in July, August, September, or early October of
2010,83 although less senior servers were scheduled. On October 11, 2011, Respondent 15
scheduled84 Gavin for 6:30 a.m. although Gavin had worked mostly evenings for 25 years.
Respondent next scheduled Gavin to work October 18 and November 3, 2010, again for a
morning shift.85
In January and February 2011, Gavin was scheduled86 for three shifts. From March 20
through July 2011, Respondent did not schedule Gavin.87 From July through November 2011,
Respondent scheduled Gavin one to two shifts per month.88 Her scheduling increased slightly in
December 2011, the peak banquet season.89
John Fields25
Banquet server John Fields was second in seniority before July 2010.90 Fields has been a
member of the Union since 1986 and has worn a union button at work. He is a member of the
union negotiating committee. Fields was available for any shift any day of the week. Before
July 2010, during the early high season in September and October, Fields worked less than 40 30
hours per week but during the high season of November and December his hours increased to
about 40 hours per week. In the banquet season from February to May 2010, Fields was
scheduled for about five shifts per week.91 During the slow summer season Fields worked about
30 hours per week. The record reflects that Fields worked an average of two to three shifts per
week in June and early July 2010. 35
Consistent with Respondent’s abandonment of seniority after July 2, 2010, in the week of
July 24, 2010, Fields went from second to eleventh in seniority on the schedule.92 While Fields

82 GC Exh. 28.
83 Ibid., at pp. 53–75.
84 Ibid., at p. 75.
85 Ibid., p. 79.
86 GC Exh. 73, pp. 1–16.
87 Ibid., at pp. 17–58.
88 Ibid., at pp. 59–78.
89 Ibid., at pp. 79–96.
90 GC Exh. 28, p. 50.
91 Ibid.
92 Ibid., at p. 53.
JD(SF)–22–13
44
continued to be available, he was not scheduled for work in August, September, and October of
2010, although less senior servers were scheduled. Respondent did not schedule Fields again
until November 4, 2010.93 Fields was scheduled three times for the rest of the peak season,
November and December 2010.94
5
Fields availability never changed in 2011. In January and February 2011, Respondent
scheduled Fields for an average of only one to three shifts per week.95 From March until the end
of July 2011, Fields was not scheduled despite less senior employees working.96 For the rest of
2011, Fields got very few shifts.97
10
Vicki Williams
Banquet bartender Vicky Williams was Respondent’s most senior banquet bartender until
July 2010.98 Williams participated in union events, and wore a union pin during her 6 years at
work.15
For the years before July 2, 2010, Williams preference sheets showed she was available
to work on Wednesday at 2 p.m., Friday after 2 p.m., and Saturday after 3 p.m.99 Williams
testified that in the October to January high season for banquet bartenders, Williams worked an
average of 20 hours per week. During the slow season, Williams said she worked 1 night per 20
week, on average. This is consistent with the schedules in the record.100

Beginning with the schedule for the week of July 24 2010, Williams moved to second
place on the banquet bartender list.101 Katie Keim, who had previously been fourth in seniority
for banquet bartenders, moved to number one.102 25
In August 2010, Williams complained to management regarding Respondent’s changes to
the schedule and its failure to follow seniority under the collective-bargaining agreement.
Williams first complained to Rydin, then to Fullenkamp.103
30
In September 2010, while Williams was available, she worked less often than lower
seniority bartenders, such as Keim.104 For the week of September 25, 2010, Respondent moved
Williams to the bottom of the schedule of seven bartenders.105 Respondent failed to schedule
Williams during October, November, and the first part of December 2010, the busy season.106
35

93 Ibid., pages 55–79.
94 Ibid., pages 81, 87, 89.
95 GC Exh. 73, pp. 1–18.
96 Ibid., at pp. 19–58.
97 Ibid., pp. 59–96.
98 GC Exh. 28, p. 52.
99 Ibid., at p. 52.
100 Ibid.
101 Ibid., at pp. 53–54.
102 Ibid., pages 52–54.
103 GC Exh. 84.
104 GC Exh. 28, pp. 63–70.
105 Ibid., at p. 72.
106 Ibid., at pp. 72–86.
JD(SF)–22–13
45
In about October 2010, Williams told Mathers that she had increased her availability to
Tuesday through Sunday after 3 p.m. Mathers said that “a certain part of the scheduling was
based on attitude and that my name had been tossed around as not being all that happy with the
changes that were going on, in fact that I’d been a little bit lippy about it.”107 Mathers said that if
Williams could keep a good attitude, she could get shifts. 5

While Respondent scheduled108 Williams to work on December 10, 11, 17, and 18, 2010,
lower-seniority bartenders received more shifts per week on days Williams was available.109
In December 2010, Williams told Fullenkamp that it was great to have a shift. Williams 10
said she understood that they were being scheduled based on attitude, so it was her intention to
keep her attitude good and keep her chin up, her head down, and behave herself about union
stuff. It is unrebutted that Fullenkamp responded, “Good, because that’s what it takes to get a
shift around here.”110 Williams was an honest and forthright witness who testified without any
hostility. I will credit her testimony.15

From January through April 2011, Williams’ availability did not change but she did not
receive the number of shifts she had in the past.111 From mid-March through early August 2011,
Williams was not scheduled for any shifts.112
20
Analysis
Complaint paragraph 26(a), as amended, alleges that Respondent decreased the number
of shifts for those employees who supported the Union, including Littau, Gavin, Fields, and
Williams.25
Employees who avail themselves of rights under a collective-bargaining agreement also
engage in protected activity under the Act. Grinell Fire Protection Systems Co., 328 NLRB 585,
604 (1999).
30
General Counsel contends that Respondent singled out employees Gavin, Fields, Littau,
and Williams, all possessing high seniority in the banquet department, for retaliation because
they have engaged in protected activity.
Respondent contends there is no evidence that seniority was discontinued in any 35
department or that employees lost any money. I find this position is simply not supported by the
evidence as set forth in detail above.
The record is clear that Littau, Gavin, Fields, and Williams all have engaged in protected
activity including complaining about the changes to the banquet schedule, being members of the 40
union negotiating committee, and being shop stewards. Littau and Gavin have been found to
have been unlawfully discriminated against. Respondent has confirmed that in order to get

107 Tr. 1497, LL 15–18.
108 GC Exh. 28, pp. 87–90.
109 Ibid.
110 Tr. 1499, LL 9–11.
111 GC Exh. 73.
112 Ibid., at pp. 21–61.
JD(SF)–22–13
46
scheduled, an employee should not complain about the scheduling changes and behave
themselves about union matters. The record demonstrates that each employee was not scheduled
when less senior employees were scheduled in violation of the seniority provisions of the expired
collective-bargaining agreement. No rational explanation was given for why these four
employees had their schedules reduced in favor of less senior employees. 5
General Counsel has established under Wright Line that Respondent discriminated
against Littau, Gavin, Fields, and Williams. They were all engaged in union activity known to
Respondent or complained to Respondent about the new scheduling without seniority.
Respondent made it clear that getting scheduled required behaving themselves when it came to 10
union matters and not complaining about Respondent’s unlawful procedures in scheduling.
Respondent’s inability to proffer any rational basis for failing to schedule these most senior
employees establishes that its true motivation was to punish those who supported the Union. In
Amber Foods Inc., 338 NLRB 712, 716 (2002) the Board held that where the employer failed to
introduce any evidence to rebut General Counsel’s prima facie case, a violation must be found. 15
In reducing the shifts of Littau, Gavin, Fields, and Williams Respondent violated Section 8(a)(3)
of the Act.
h. The July 2010 decrease in hours for restaurant employees Gina Tubman and Kyoko Akers
Before July 2, 2010 Respondent scheduled employees in its Jade Restaurant pursuant to 20
the seniority provisions of the expired collective-bargaining agreement. It is unrebutted that
before July 2010, Respondent used seniority to determine which shifts, hours, and days off
employees selected. For example, if the restaurant manager needed to send a server home early,
the senior person was asked if they wanted to go home. Ultimately the least senior server was
sent home early if the more senior servers wished to work. 25
Gina Tubman
Gina Tubman has worked as a server for Respondent in the Jade Restaurant for more than
15 years. She is the most senior of all restaurant servers. Tubman was a member of the union 30
negotiating committee since 2009, participated in and spoke at union events, and was found
illegally discharged in Remington I for distributing boycott flyers. She gave testimony113 about
her discharge at the Remington I hearing, while General Manager Artiles was present.
Prior to her February 2010 discharge, Tubman worked from 5:30 a.m. to 1:30 p.m., 35
Wednesday through Sunday. As the most senior restaurant server, Tubman generally worked 40
hours per week, and her average number of hours per week did not change at all depending on
the season.
Tubman was reinstated by Respondent on July 3, 2010. It is unrebutted that in the last 40
week of July 2010, Respondent began sending Tubman home early. On July 28, 2010, Tubman
began her shift from 5:30 a.m. to 1:30 p.m. together with two or three servers. At about 10 a.m.,
Restaurant Supervisor Sam told Tubman that Rydin said she had to go home. Tubman went into
the kitchen and asked Rydin why he was sending her home since she was most senior. Rydin
said that she had already made her money and that there was no seniority any longer. 45

113 GC Exh. 90.
JD(SF)–22–13
47
On July 29 and 30, 2010, Respondent sent Tubman home at around 8 a.m. Respondent
sent Tubman home early even though two to three servers were scheduled each day and Tubman
was most senior.
5
In the first week of August 2010, Respondent continued to send Tubman home before the
end of her shift, usually when the third server of the morning came in to work. For the rest of
August 2010, Respondent sent Tubman home early every other day despite the fact that
Respondent had scheduled two or three less senior servers per day. Payroll records reflect that
Tubman hours dropped to 50 hours for the 2-week pay period in the first part of August and rose 10
to 61.25 hours for the second pay period in August.114

It is unrebutted that in August 2010, Jade Restaurant Manager Fernando Durante told
bellman Troy Prichacharn that Rydin told him to get rid of Tubman all the time, and that, if it
was not busy, to send Tubman home. Durante said that Rydin told him that Tubman “is trouble” 15
and “if there’s no need, send her home.”115 In a conversation shortly thereafter, Durante told
Prichacharn that Rydin does not like Tubman and always wants to get rid of her.
Respondent continued to send Tubman home between 9 a.m. and 11 a.m., every other
day from August through part of December 2010. If a third server came in, then Respondent 20
sent Tubman home early for the day. As a result, in October, November, and December 2010,
Tubman worked only 58.75 to 70.25 hours per 2-week pay period.116 Tubman had previously
averaged around 40 hours per week.
While in December 2010, Tubman began receiving more hours, she continued to be sent 25
home early, at about 11 a.m. or 12 p.m., about once per week, if a third server came in that day.
While Tubman was on vacation during the month of April 2011, the schedule117 no longer listed
employees by seniority. Tubman’s name went from first to fourth on the schedule for morning
restaurant servers.
30
In May 2011, Mathers and Rydin made the restaurant schedule. In May and early June
2011, Mathers told Tubman to go home early whenever a third server came in to work, about
every other day. Tubman told Mathers that if she was going to continue to send her home early,
Tubman wanted to work only 2 days per week so that she could get another job that provided
health care. Mathers scheduled Tubman only 2 days per week until March 2012, after the 10(j) 35
order issued and Tubman’s number of days worked increased.118

114 GC Exhs. 136(p), p. 19 and 136(q), p. 18.
115 Tr. 1598, LL 3–5.
116 GC Exhs. 136(t), p. 19; 136(u), p. 20; 136(v), p. 20; 136(w), p. 20; 136(x), p. 22 and 136(y), p. 19.
117 GC Exh. 86, p. 25
118 GC Exh. 87.
JD(SF)–22–13
48
Kyoko Akers
Jade Restaurant server Kyoko Akers has worked for Respondent and its predecessors for
14 years and was second in seniority in July 2010, among Jade restaurant servers. Akers
attended union rallies in 2010, and has worn a union button at work. Before July 2010, Akers 5
worked morning shifts Saturday through Wednesday for approximately 35 to 40 hours per week.
On or about July 25, 2010, after starting her shift at 5:30 a.m., restaurant manager Sam
said Rydin was sending her home at 8:30 a.m., even though three less senior servers were still
working. Akers spoke to Rydin about why she was being sent home since she had seniority. 10
Rydin told her that the hotel was nonunion and there was no seniority. Akers then spoke with
Fullenkamp and said Rydin told her the hotel was nonunion and there was no seniority.
Fullenkamp confirmed that the hotel was not union, and there was no more seniority. Again on
July 26, 2010, at about 9 a.m., Respondent sent Akers home early while three less senior servers
remained at work. Payroll records reflect a drop in Aker’s hours. Akers worked 78 hours for the 15
2-week pay period ending July 16, 70 hours for the pay period ending July 30, and 56.25 hours
for the pay period ending August 13, 2010.119
For the weeks of October 30 to November 7, 2010, Respondent posted a restaurant
schedule120 that had Akers working 4 days while less senior servers Alvin Daubs and Jocelyn 20
Morales, who had signed the decertification petition,121 each worked 5 days. Akers asked
Mathers why she had fewer days than less senior servers Alvin and Jocelyn. Mathers told Akers
that Rydin told her that Alvin and Jocelyn had “first priority.”
In 2011, Respondent continued to schedule Akers for less than 5 days per week12225
although her availability remained unchanged at 5 days per week. Respondent also scheduled
Akers to work from 5:30 to 11:30 a.m.123 rather than her usual 5:30 a.m. to 1:30 p.m. shift she
worked before July 2, 2010.
Analysis30
Complaint paragraph 26(b) alleges that beginning in about July 2010, Respondent
decreased the number of hours for those restaurant employees who supported the Union,
including Gina Tubman and Kyoko Ayers.
35
General Counsel contends that Respondent violated the Act by altering the hours and
shifts of top-seniority restaurant servers Tubman and Akers. Respondent again argues there is no
evidence that seniority was discontinued in any department or that employees lost any money.
Once again I find this position is simply not supported by the evidence as set forth in detail
above. 40
Both Tubman and Akers were active union members, whose activities were well known
to Respondent. Tubman was fired unlawfully in February 2010 for distributing boycott flyers.

119 GC Exh. 136(n), p. 22; 136(o), p. 18; 136(p), p. 19.
120 GC Exh. 85, p. 54.
121 GC Exh. 97.
122 GC Exh. 86, pp. 3–23.
123 Ibid. at p. 45.
JD(SF)–22–13
49
Rydin stated she was “trouble” and he wanted to get rid of her. Apparently the way to get rid of
Tubman and Akers was to reduce their hours to the point they would quit. Respondent was
nearly successful with Tubman as she told Mathers she had to find other work in order to get
health insurance because Respondent had cut her hours so severely. Both Tubman and Akers
complained about Respondent not following seniority and were told there was no seniority 5
because there was no union. I find that General Counsel has established its burden under Wright
Line that Respondent discriminated against Tubman and Akers given their union activity known
to Respondent and the general animosity toward employees’ union activities which supplies the
requisite motivation.
Since Respondent here has proffered no rational basis for its departure from the use of 10
seniority and for reducing both Tubman and Aker’s hours, I find Respondent violated Section
8(a)(1) and (3) of the Act. Amber Foods Inc., 338 NLRB 712, 716 (2002).
i. The August 2010 increase in shifts for banquet employees who signed the
decertification petition
15
In the spring of 2010 a decertification petition was signed by Respondent’s employees at
the hotel.124 In the banquet department Supaporn Kennedy, Nestor Arguson, Flora Sanchez,
Stella Hernandez, Carmelita Muse, and Katie Keim signed the petition125 which was given to
Respondent. Based upon this petition, Respondent withdrew recognition from the Union on
July 2, 2010. 20
As of July 17, 2010, Sanchez, Hernandez, Kennedy, and Arguson ranked 11, 23, 25, and
28 in seniority among servers. On the same date bartender Katie Keim was fourth in seniority.126
The next schedule for the week of July 24, 2010, had the names of the servers and bartender who
signed the decertification petition on the top of their respective job categories.127 As of July 24 25
the banquet server schedule listed Kennedy at the top of the list, Arguson second, Sanchez third,
and Hernandez fifth. Keim moved to the head of the list for banquet bartenders.
Not only were these individuals listed higher on the banquet schedules than the union
supporters but they were also scheduled for more hours than the employees who supported the 30
Union.
Supaporn Kennedy
Supaporn Kennedy was 25th in seniority for banquet servers before she signed the 35
decertification petition.128 Based on her low seniority,\ Kennedy worked about one shift per
week in February 2010, no shifts in March and April 2010, zero to two shifts per week in May
2010, and no shifts in June and July 2010.129

124 GC Exh. 97.
125 Compare GC Exh. 28, schedules, with the names on the decertification petition and the seniority rosters, GC
Exh. 93, to identify the banquet employees who signed the decertification petition.
126 GC Exh. 28, pp. 50–52.
127 Ibid. at p. 53.
128 Ibid. at p. 51.
129 Ibid. pp. 1–51.
JD(SF)–22–13
50
By July 24, 2010, Kennedy was at the top of the list of banquet servers.130 From August
10 through October 17, 2010, Kennedy worked about three to five shifts per week.131 Kennedy
was off work from October 2010 until March 2011.
When Kennedy returned to work in April and May 2011, she was again scheduled for5
about three to five shifts per week.132 During the slow month of June, Kennedy was still
scheduled for about two to three shifts per week, when higher-seniority servers did not work.133
Flora Sanchez
10
Banquet server Flora Sanchez was 11th in seniority for banquet servers just before July 2,
2010.134 Commensurate with her seniority, she worked about three banquet shifts per week from
February to May 2010.135 For June and the first part of July 2010, Sanchez worked only one
shift.136
15
However, after the decertification petition was received by Respondent and after
withdrawal of recognition on July 24, 2010, Sanchez was moved to third in seniority and began
receiving more shifts.137 During August 2010, during the banquet slow season, Sanchez received
about one shift per week.138 From September through the end of December 2010, Sanchez
received about five shifts per week.139 At the same time Littau, who had been sixth in seniority, 20
did not work.140

From January through March 2011, Sanchez worked three to five shifts per week in the
banquet department and additional shifts in the Jade Restaurant.141 In April through June 2011,
Sanchez received about one to two banquet shifts per week and more shifts in the Jade 25
Restaurant.142 In July and August 2011, during the slow season, Sanchez was scheduled for one
shift per week as a server and had more shifts in the Jade Restaurant.143
Stella Hernandez
30
Banquet server Stella Hernandez was 23rd in seniority prior to signing the decertification
petition.144 Based on her low seniority, she worked 2 weeks in mid-February 2010, and received
one shift per week.145 Likewise from late February through April 2010, Hernandez did not

130 Ibid. at p. 53.
131 Ibid. at pp. 57–75.
132 GCExh. 73.
133 Ibid.
134 GC Exh. 28, p. 50.
135 Ibid. at pp. 1–35.
136 Ibid. at pp. 36–49.
137 Ibid. at p. 53.
138 Ibid. pp. 55–61.
139 Ibid. at pp. 65–92.
140 Ibid at pp. 67–92.
141 GC Exh. 73, pp. 1–26.
142 Ibid. at pp. 27–52.
143 Ibid. at pp. 51–68.
144 GC Exh. 28 at pp. 50–52.
145 Ibid. at pp. 1–4.
JD(SF)–22–13
51
receive any shifts.146 In May 2010, Hernandez worked two to three shifts per week for most of
May 2010, but in June and July she did not work.147
By July 24, 2010, Hernandez was fifth in seniority.148 From September to December
2010, Hernandez was scheduled for about three to five shifts per week.149 Throughout 2011 5
Herndanez received more shifts than her prounion counterparts.150
Nestor Arguson
Nestor Arguson was least senior among banquet servers before he signed the 10
decertification petition.151 While Arguson’s name was on the banquet schedule the week of
February 21, 2010, Respondent scheduled him only once as a banquet server until after
July 2, 2010.152
By July 24, 2010, Arguson jumped to second in seniority on the banquet server 15
schedule.153 For example, the week of July 24, 2010, Arguson worked two banquet shifts, on
July 27 he was one of two servers working, on July 29 he was the only banquet server scheduled
to work.154 Arguson also worked shifts on August 14 and August 21, 2010, ahead of more senior
servers.155
20
Katie Keim
Katie Keim was least senior among four bartenders at the time she signed the
decertification petition.156 In line with this seniority, Keim worked no shifts in February 2010,
one shift in March 2010, two shifts in April 2010, and no shifts in May, June, and the first part of 25
July 2010.157
As of July 24, 2010, Keim became the most senior banquet bartender.158 From this point
on through May 2011, Keim received more shifts than union supporter Williams.159
30

146 Ibid. at pp. 6–26.
147 Ibid. at pp. 27–52.
148 Ibid. at p. 53.
149 Ibid, at pp. 63–92.
150 GC Exh. 73.
151 GC Exh. 28, pp. 50–52.
152 Ibid. at pp. 6–52.
153 Ibid. at p. 53.
154 Ibid.
155 Ibid. at pp. 57–60.
156 Ibid. at p. 53.
157 Ibid. at pp. 1–52.
158 Ibid. at p. 54.
159 GC Exh. 28, pages 55–92 and exh. 73, pp. 1–44.
JD(SF)–22–13
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Analysis
Complaint paragraph 27 alleges that beginning in about August 2010, Respondent
increased the number of scheduled shifts to those banquet employees who signed a petition to
decertify the Union.5
This allegation is an unusual twist on the Wright Line160 test for finding unlawful
employer discrimination in terms and condition of employment in order to discourage union
activity. Here the alleged employer motivation is not the discouragement of union activity but
the encouragement of antiunion activity. Nevertheless, the test remains the same. Under Wright 10
Line, the General Counsel’s burden in all cases turning on employer motivation is to establish by
a preponderance of the credible evidence that an unlawfully discriminatory consideration,
usually, the employer’s hostility to a union or to union activities, was a motivating factor in the
action of the employer challenged by the complaint.

If such a showing is made, the burden of
proof shifts to Respondent to show that it would have taken the same actions without regard to 15
its unlawful motivation. Miramar Hotel Corp., 336 NLRB 1203, 1211 (2001); General Clay
Products Corp., 306 NLRB 1046, 1052–1053 (1992).
The only difference between this case and a conventional Wright Line case is that here,
the acts of discrimination said to have been motivated by the Respondent’s wish to rid itself of 20
an unwanted union presence were not acts of discrimination against prounion workers, but acts
for the benefit of antiunion workers who signed a decertification petition.
General Counsel’s threshold burden is to establish by a preponderance of the credible
evidence that the antiunion activities of the four employees named in the complaint were 25
motivating factors in the Respondent’s decisions to give the increased shifts to those particular
employees. An unlawful employer motive may be inferred where the employer’s stated reasons
for the action in question are themselves seen by the trier of fact as false or highly dubious in the
light of reliable surrounding evidence. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,
470 (9th Cir. 1966).30
The evidence establishes that Respondent had knowledge that the four employees were
against the union since their signatures were affixed to the decertification petition that was given
to Respondent before these employees began receiving increased shifts in July 2010. That their
antiunion sympathies were a motivating factor in Respondent’s decision to give these benefits is 35
established by the importance Respondent placed upon the decertification petition as a means to
rid itself of its bargaining obligations with the Union. In this regard Respondent encouraged and
had several supervisors assist in the distribution of the petition and in soliciting signatures on the
petition. The significance of the petition to Respondent was demonstrated by Chief Engineer
Emmsely Senior when he told Wray that if Wray signed the petition, his discipline would go 40
away. Further, Respondent offered no cogent reason why it would give its least senior servers
more shifts than its more experienced wait staff, leading to the inference that rewarding the
loyalty of antiunion employees motivated Respondent’s action. I find that in giving the four
employees discussed above more shifts than they had been receiving prior to July 2010, violated
Section 8(a)(3) of the Act. 45

160 251 NLRB 1083 (1980).
JD(SF)–22–13
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3. The 8(a)(5) allegations
a. The April 24, 2010 ban of Union Representative Esparza from the hotel
Article VIII, section 1, of the parties’ expired collective-bargaining agreement provides:
5
A Business Representative or other authorized representative of the Union shall be
permitted to visit the premises of the Employer at any reasonable time during working
hours and such visits shall not interfere with work or service to or to cause
embarrassment to guest or customers. Union representatives will exercise reasonable
efforts to provide the Human Resources Office with as much advance notice as is 10
feasible when they plan to visit. Business Representatives and other authorized
representatives of the Union shall conduct employee interviews in non-working areas
(i.e., employee cafeteria) and all such interviews shall be conducted during the
Employee’s non-working time.161
15
Before July 2010, it was the parties’ practice for the Union to call either Fullenkamp or
Artiles and let them know they were coming to speak with bargaining unit members. The union
officials who went to the hotel to visit including, business agent Esparza and President Jones,
would call in advance and speak to Fullenkamp or Artiles or leave a message before they arrived.
The union officials generally met with employees in the basement employee cafeteria. 20
Daniel Esparza was the Union’s business agent for about 4 years. He was the only union
official who was fluent in the Spanish language, a language spoken by a significant number of
bargaining unit employees.
25
On February 22, 2010, the Union received a letter162 from Artiles complaining that Jones
had failed to notify Artiles prior to a visit to the hotel and that Esparza had screamed at
employees in the employee cafeteria on February 9, 2010. In the letter Artiles limited union
visitation to twice a day for 1 hour per visit and demanded that he be personally contacted before
the Union came to the hotel. In addition, Artiles threatened:30
If union representatives cannot conduct themselves in a professional manner and treat
our associates with dignity and respect, they will be asked to leave the property
immediately.
35
Jones showed Artiles’ letter to Esparza who denied that he had yelled at any bargaining
unit members. About a week later Jones met with Artiles at the hotel and told him that Esparza
denied the accusations contained in his letter. Artiles replied that, “this is what happens in war,
when you have a war.”163 Jones asked Artiles to meet with Esparza and Artiles agreed.
40
About April 15, 2010, Esparza went to Artiles’ office and spoke with him about the
employees’ accusations and gave his side of the story. After Esparza was finished with his

161 GC Exh. 2, p. 9.
162 GC Exh. 110.
163 Tr. 2087, LL 20–21.
JD(SF)–22–13
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explanation, Artiles said, “Okay, then you’ll—it might be true what you said to me, okay, but
I got a job to do and I’ve been ordered to keep you out, so I got to do what I need to do.”164
Artiles thanked Esparza for not using Sheraton employees in a March 2010 union rally,
because if the Union had used Respondent’s bargaining unit employees, “I will fire them right on 5
the spot because it’s against company policy he would have had to fire them right on the spot
because it’s against company policy.”165
On April 21, 2010, Artiles sent another letter166 to Jones that made further accusations
that Esparza had threatened bargaining unit employees and banned Esparza from the hotel 10
property. Prior to this edict, there was no bargaining with the Union about Esparza’s access to
the hotel. Respondent failed to call Esparza’s accuser Delores Cuellar. While the other accuser
Margarito Lucero was called as a witness by Respondent, she provided no testimony concerning
Esparza’s conduct toward her. Moreover, Artiles was never called as a witness. I credit
Esparza’s testimony here as I did earlier. His testimony was detailed, consistent and he made no 15
efforts to embellish.
Analysis
Complaint paragraph 28(a) alleges that on April 21, 2010, Respondent banned Union 20
Representative Daniel Esparza from the hotel.
It is well established that the union access provisions of a collective-bargaining
agreement survive its expiration. Further the practice of an employer in allowing union agents
access to its premises to meet with employees becomes a term and condition of employment that 25
may not be unilaterally changed. Great Western Coca-Cola Bottling Co., 265 NLRB 766, 778
(1982); Oaktree Capital Management, LLC, 355 NLRB 1272, 1272 (2010).
The parties’ expired collective-bargaining agreement granted union access to the hotel
and the parties had established a practice allowing union representatives to visit the cafeteria 30
during employee breaks. No bargaining over the denial of access by Esparza ever took place
before Artiles unilaterally decided to bar his presence. Moreover, it is clear from Artiles’
unrebutted statement to Jones that, “this is what happens in war,” shows that his complaints
regarding Esparza were false. This was later confirmed in Artiles’ statement to Esparza after
Esparza was denied access to employees, “Okay, then you’ll—it might be true what you said to 35
me, okay, but I got a job to do and I’ve been ordered to keep you out, so I got to do what I need
to do.”
Respondent violated Section 8(a)(1) and (5) when it unilaterally barred Union
Representative Daniel Esparza from the hotel on April 21, 2010, without giving the Union an 40
opportunity to bargain about the issue.

164 Id. at p. 99, LL 8–10.
165 Id. at p. 99, LL 21–22.
166 GCExh. 111.
JD(SF)–22–13
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b. The July 2, 2010, ban of the Union from the hotel
On July 2, 2010, Respondent’s attorney Arch Stokes sent the Union a letter167
immediately withdrawing recognition from the Union as the exclusive bargaining representative
of unit employees because a decertification petition had been filed. 5
On about July 2, 2010, Jones, and Union Representative Lawson visited with bargaining
unit employees in the employees’ cafeteria at the hotel. After about 30 minutes Artiles, Canas,
and Rydin approached Jones. Artiles spoke to Jones in the hallway outside the cafeteria and
asked Jones if he had received the letter. When Jones said no, Artiles told him the Union was 10
not allowed on the property. Jones then said he recalled the letter and said he was not taking it
seriously since the NLRB was deciding if the Union had lost majority status. Artiles said that it
was Respondent’s position that it was not a union house. When Jones asked Artiles if he was
asking him to leave the hotel, Artiles replied, yes.
15
On July 3, 2010, Artiles sent the Union a letter168 stating that the Union no longer
represented a majority of Respondent’s employees and that “Accordingly, neither you nor any
other representative of local 878 may attempt to enter the hotel’s property for any purposes
related to the representative capacity you no longer possess.
20
This decision was made without notice to or bargaining with the Union.
Analysis
Complaint paragraph 28(b) alleges that on July 2, 2010, Respondent banned the Union 25
and its representatives from the hotel.
Respondent’s defense to this unilateral change is that its withdrawal of recognition of the
Union, based upon the decertification petition, relieved it of its obligation to bargain with the
Union about this change. However, since Judge Meyerson in Remington I found that 30
Respondent’s withdrawal of recognition was unlawful, Respondent’s defense cannot stand.
Great Western Coca-Cola Bottling Co., 265 NLRB 766, 778 (1982). I find that Respondent
violated Section 8(a)(1) and (5) of the Act by unilaterally barring union representatives from the
hotel on July 2, 2010.
c. The July 2010 elimination of banquet employees’ scheduling preference sheets35
After withdrawing recognition from the Union on July 2, 2010, the record is clear that
Respondent no longer used preference sheets169 or, as discussed above, seniority, in scheduling
banquet department bargaining unit employees. This decision was made without notice to or
bargaining with the Union. Jones testified that the use of preference sheets was negotiated 40
between the parties and was the subject of a side letter.

167 GC Exh. 108.
168 GC Exh. 109.
169 GC Exh. 81, sometimes referred to as an availability sheet.
JD(SF)–22–13
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Preference sheets were filled out by banquet employees to indicate the days and hours
they were available to work. Based on need, availability, and seniority employees were assigned
days and shifts. Days off were also requested on the preference sheet. Since days off did not
involve vacation pay, no other form was required and Respondent generally granted the time off.
5
The decision to cease using preference sheets was confirmed in a July 25, 2010
memorandum170 from Rydin which stated: “There are to be no more schedule changes, trades etc
with out (sic) my approval. Please submit any changes in writing to me.” A September 6, 2010
memorandum171 from Artiles to banquet employees regarding banquet schedules stated that:
10
Associates will be scheduled according to the business we have and the overall hours the
associate is available to work. Flexibility in scheduling your work hours is a normal
requirement for our hotel and the industry.
These memoranda were a departure from use of seniority and employees preference 15
sheets in creating the schedule, and eliminated employees’ ability to give away shifts according
to seniority and availability.
In addition to the memos, Respondent’s change in use of seniority and preference sheets
in scheduling unit employees was confirmed by Banquet Manager Mathers, who told banquet 20
employees that Respondent no longer used seniority or accepted preference sheets when
scheduling banquet employees. Banquet employees Mary Jo Audette, Fay Gavin, Joanna Littau,
and Vicky Williams all testified that in the summer and fall of 2010, Mathers told them that
Respondent no longer accepted or followed preference sheets. In place of seniority, Mathers said
Respondent had substituted availability, attitude, and appearance.25

These changes are further confirmed by the banquet employees’ schedules for the week
of July 24, 2010.172 The schedule now listed the banquet employees in nonseniority,
nonalphabetical order, removed the a.m. and p.m. indications of availability in the row next to
each banquet employee’s name and removed employee telephone numbers that had allowed 30
banquet staff to trade shifts. This reflects that Respondent began scheduling banquets without
regard to seniority or availability. The effect of these changes is discussed above, reflecting that
less senior servers were scheduled ahead or formerly high and mid seniority servers.

After the February 2012 United States District Court 10(j) injunction, Respondent again 35
recognized seniority and scheduled banquet employees according to seniority and availability.173
Analysis
Complaint paragraph 28(c) alleges that on about July 2010, Respondent eliminated 40
banquet employees’ preference sheets.
The Board has found work schedule posting requirements and bidding procedures are
terms of employment that constitute mandatory subjects of bargaining. Beverly Health and

170 GC Exh. 79.
171 GC Exh. 70.
172 GC Exh. 28, pp. 53–54.
173 GC Exh. 74.
JD(SF)–22–13
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Rehabilitation Services, Inc., 335 NLRB 635, 636 (2001); Benteler Industries, Inc., 323 NLRB
712, 715 (1997). Respondent scheduled banquet employees for many years through the use of
preference sheets together with seniority. By terminating its past practice of scheduling
according to preference sheets without notice to or bargaining with the Union, Respondent
violated Section 8(a)(1) and (5) of the Act. 5
d. The July 2010 cessation of posting banquet employees’ schedules by noon on Friday
Article XIX, section 5 of the expired collective-bargaining agreement provides that
except for the housekeeping department, the “[s]chedule will be posted weekly by 12 noon on
Fridays.”174 Shortly after July 2, 2010, Respondent stopped posting the banquet schedule by 10
early Friday afternoon for 3 to 4 weeks. Respondent did so without notifying or offering to
bargain with the Union.

Complaint paragraph 28(d) alleges that in July 2010, Respondent terminated its practice
of posting banquet employee schedules by noon on Fridays.15
As noted above, posting work schedules is a mandatory subject of bargaining. Beverly
Health and Rehabilitation Services, Inc., supra. Failure to post for a 3 to 4-week period was a
material change and appears to be a part of Respondent’s pattern of repudiating the terms and
conditions of employment embodied in the expired collective-bargaining agreement absent 20
impasse. I find the failure to post the work schedules violated Section 8(a)(1) and (5) of the Act.
e. In July 2010 Respondent ceased assigning work and scheduling by seniority
Article XIV of the expired collective-bargaining agreement175 deals with seniority.
Section 1 provides in part, “seniority shall be the controlling consideration in determining shift 25
changes, shift assignment, days off, layoffs, recalls from layoffs, hours of work, and vacation
scheduling.” Section 2 provides that, seniority shall be by departments and job classifications
within the departments.
The record reflects that before July 2010, Respondent scheduled banquet servers, banquet 30
captains, banquet bartenders, banquet set up, engineers, room attendants, housekeeping
supervisors, porters, kitchen, and restaurant servers according to seniority.
After July 2, 2010, Respondent no longer followed seniority in, among things, shift
assignments or hours of work. After withdrawing recognition from the Union in July 2010, 35
Human Resources Director Fullenkamp, Executive Chef for the Kitchen Rydin, Banquet
Manager Mathers, and Chief Engineer Emmsley Senior,Front Desk Manager Jeff Brown, and
Housekeeping Director Hanna all said that Respondent no longer followed seniority.
It is unrebutted that after July 2010, Fullenkamp told restaurant server Kyoko Akers, 40
banquet server Fay Gavin, housekeeping porter Audelia Hernandez, and housekeeper Maria
Hernandez, there was no more seniority.

174 GC Exh. 2, p. 20.
175 Id. at p. 14.
JD(SF)–22–13
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It is also undisputed that in July and August 2010, Rydin told the restaurant employees he
scheduled that, as the hotel was no longer Union, he could schedule as he wished. It is
unrebutted that Mathers told several banquet employees that Respondent was scheduling banquet
employees based on attitude, availability, and appearance, and that she could schedule how she
wanted. Engineer Dexter Wray credibly testified that Emmsley Senior in response to his 5
question as to why Emmsley Senior was cutting his hours if he was highest in seniority,
responded that it did not matter now, that there was no more Union so he could do what he
wanted to do. In July or August 2010, Front Desk Manager/Acting Housekeeping Manager Jeff
Brown, housekeeping manager Yolanda Hanna, and Fullenkamp, all told housekeeping
employees there was no more seniority. 10
Banquet set up employees were scheduled according to seniority until August 2011.176
However, as of the schedule for the week of August 6, 2011, Respondent no longer listed names
on the set up schedule in seniority order, but rather alphabetically.177 In October 2011,
Respondent completely restructured the banquet set up department without regard to seniority. 15
Respondent returned to scheduling according to seniority after the 10(j) injunction
ordered it to do so.
Analysis
Complaint paragraph 28(e) alleges that in about July 2010 Respondent ceased assigning 20
work and scheduling employees according to seniority.
It is well established Board law that the seniority provisions of an expired contract
survive and must be followed absent impasse. L & L Wine & Liquor Corporation, 323 NLRB
848, 853 (1997). 25
By abandoning the use of seniority in assigning work throughout the hotel, as required in
the expired collective-bargaining agreement, from July 2010 until at least February 2012,
Respondent violated Section 8(a)(1) and (5) of the Act.
f. In July 2010 Respondent assigned engineering unit work to nonunit employees30
The engineering department is responsible for performing building maintenance that
includes checking the building water pumps, meters, and mechanical room, answering
maintenance calls, and doing preventative maintenance.
35
Before July 2010, Respondent scheduled its engineers according to seniority. Seniority
also guided employees’ preference for days off, hours, and overtime. When hours were cut, the
lowest person in seniority was cut first.
In July 2010, Dexter Wray was most senior in the engineering department. Wray 40
averaged 40 hours work plus overtime during the summer high season and 40 hours per week
during the winter slow season.

176 GC Exh. 101.
177 GC Exh. 102.
JD(SF)–22–13
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In early July 2010, Emmsley Senior announced to the engineers that he was going to cut
back everyone’s hours. Wray asked why Emmsley Senior was cutting his hours, as he had
highest seniority. Emmsley Senior replied that it did not matter now, that there was no more
Union so he could do what he wanted to do. Emmsley Senior explained that he was reducing
hours so that he did not have to lay anybody off, which, was contrary to how the seniority system 5
had worked in the past.
While Wray testified that Emmsley Senior reduced engineers’ hours to 32 hours per
week, his timecards178 reflect that Wray’s hours were cut by only a few hours in July and August
2010, and he then resumed his normal hours. 10
After 1 p.m., when ‘Wray was off duty, there were no other bargaining unit engineering
employees in the hotel until 3 p.m. Wray assumed that Emmsely Senior performed any
necessary calls between 1 p.m. and 3 p.m. because Emmsely said he had used Wray’s tools.
Wray never actually saw Emmsely perform bargaining unit work. While Emmsley Senior told 15
Wray that he was tired because he was doing the engineering job and security, this is not enough
to establish he performed bargaining unit work rather than his supervisory duties in engineering
and security.
Analysis20
Complaint paragraph 28(f) alleges that in about July 2010, Respondent assigned
engineering bargaining unit work to nonunit employees.
While it is well established that the performance of unit work by supervisors is a 25
mandatory subject of collective bargaining, I am unable to find that there is sufficient evidence
that Emmsley Senior performed bargaining unit work. Wray never saw Emmsley perform
bargaining unit work and he is speculating based upon Emmsley’s use of Wray’s tools that
bargaining unit work was performed. No explanation was given for what Emmsley may have
used the tools for. I will recommend that this allegation be dismissed.30
g. The July 2010 change in sick leave policy
Article XXVI of the expired collective-bargaining agreement179 covers the subject of sick
leave. Section 1 provides that “sick pay will be available to Employees from the first through the
sixth day of any absence caused by sickness or accident where the sickness or accident causes 35
the Employee to be absent three or more consecutive shifts.” Section 5 of the sick leave article
provides that if the employer has reason to believe an employee is abusing sick leave, it may
request the employee provide written certification of the reason for the sick absence by a
physician.
40
It is undisputed that after withdrawing recognition from the Union on July 2, 2010, until
February 2012, Respondent began following its own employee handbook180 with respect to sick
leave policy rather than the collective-bargaining agreement. In early July 2010, Respondent

178 R. Exh. 42.
179 GC Exh. 2, p. 27.
180 GC Exh. 89.
JD(SF)–22–13
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posted181 an excerpt of its policy on absenteeism and tardiness from the Remington employee
handbook.
Section V of the handbook deals with absences and tardiness and states that, “Three (3)
or more absences in a six (6) month period, either excused or unexcused, may result in 5
disciplinary action or possible termination.” This provision of the handbook also requires a
physician’s written release prior to returning to work, where an employee is absent for three or
more consecutive days. 182 Under the heading Sick Pay, Respondent’s employee handbook
provides that:
10
No sick pay will be paid for the first day of fan illness; sick pay will begin on the second
day of the illness.
Associates must notify their supervisor of their illness on the first day out ill, and each
day thereafter that the associate remains ill. If the associate fails to report his illness, sick 15
pay will not be paid for days the associate does not report.183
On or about October 18, 2010, Respondent issued housekeeper Elda Buezo a formal
notice of counseling184 that states:
20
Company policy indicates that 3 or more absences in a 6 month period may result in
disciplinary action or possible termination. Elda has missed 3 days of work within a 2
month period as shown below:
September 14, 2010 Called in sick.25
September 17, 2010 Called in sick.
October 14, 2010 Called in sick.
During the disciplinary meeting, Fullenkamp told Buezo that her absences constituted a
violation of the policy in the Remington employee handbook. 30
In February 2011, Housekeeping Manager Hanna told porter Audelia Hernandez that
Respondent required a doctor’s note for her to be out sick for 1 day of work. Hernandez went to
the doctor, who gave her a note for 3 days’ rest. Hernandez did not receive sick leave pay for her
absences due to illness. At no time did Respondent give notice to or bargain with the Union 35
about this change.
Analysis
Complaint paragraph 28(g) alleges that in July 2010, Respondent changed its sick 40
leave policy.
It is well established that sick leave policies are mandatory subjects of bargaining. Pratt
Industries, Inc., 358 NLRB No. 52, slip op. at 1, 8–9 (2012). Changes to sick leave reporting

181 GC Exh. 88.
182 Ibid. at p. 18.
183 Ibid. at p. 6.
184 GC Exh. 46.
JD(SF)–22–13
61
requirements have a material impact on terms and conditions of employment. Further where the
new requirements provide for disciplinary consequences the changes are a material change in
terms and conditions of employment. Pratt Industries, Inc., supra at 9.
Here Respondent unilaterally changed the extant sick leave policy embodied in the 5
collective-bargaining agreement when it enforced the provisions of its employee handbook
policies. Respondent announced and implemented the new rule that employees could receive
discipline for three absences within a 6-month period, even if the employee was legitimately
absent due to illness, as demonstrated by Fullenkamp’s statement to Buezo during her
disciplinary meeting. Further, as demonstrated with Buezo, Respondent actually imposed 10
discipline for illness-related absences based on this new rule.
By applying the sick leave and absence and tardiness provisions of its employee handbook
rather than the collective-bargaining agreement, sick leave provisions without notice to or
bargaining with the Union Respondent violated Section 8(a)(1) and (5) of the Act. 15
h. In July 2010 Respondent ceased payments to the UNITE-HERE! National
Retirement Fund
Article XXXIV185 of the expired collective-bargaining agreement provided that
Respondent was to make pension fund contributions for bargaining unit employees to the Alaska 20
Hotel and Restaurant Employees Pension Trust. Since about 2009, the pension contributions
were made to the UNITE-HERE! National Retirement Fund. It is undisputed that on October 12,
2010, Respondent’s counsel sent a letter186 to the Union’s pension trust fund stating that as a
result of a decertification petition having been submitted to Respondent by a majority of
employees at the hotel, Respondent had withdrawn recognition from the Union and was no 25
longer making payments into the pension trust.
It is undisputed that, from at least August 2010, Respondent failed to make payments into
the Union’s pension fund.187 There is no dispute that Respondent never gave notice to or
bargained with the Union before making this change. While Respondent reached a financial 30
settlement188 with the Pension Fund Trust, it did not reach any settlement with the Union
regarding this unilateral change.
Respondent contends that Respondent through its settlement with the Pension Trust is
current on pension contributions and there was no animus involved in the failure to make the 35
pension trust payments. Motivation is irrelevant, but as General Counsel concedes that the
pension trust payments are current, it does not seek a monetary remedy only a notice positing.
Since it has been found in Remington I that Respondent’s withdrawal of recognition was
unlawful, Respondent is not privileged to cease making pension contributions. Employee 40
pensions are a mandatory subject of bargaining and any unilateral change in a pension plan
without bargaining with the Union violates Section 8(a)(5) of the Act. Columbia Portland

185 GC Exh. 2, p. 38
186 GC Exh. 112.
187 GC Exhs. 113–116.
188 R. Exh. 12.
JD(SF)–22–13
62
Cement Co., 303 NLRB 880, 884 (1991). Respondent violated Section 8(a)(1) and (5) of the Act
when it unilaterally ceased making contributions to Respondent’s Pension Fund.
i. The October 2011 subcontracting of bargaining unit banquet server work
5
Article IX, section 8 of the collective-bargaining agreement189 provides that if
Respondent decides to subcontract out bargaining unit work, it shall first notify and bargain with
the Union about the proposed action.
Union President Jones testified that the parties’ understanding regarding subcontracting 10
of banquet servers’ work was that as long as Respondent used all of its bargaining unit servers, it
could then call for temporary banquet servers from a third party employer. Up until July 2, 2010,
this understanding was followed and Respondent did not use temporary banquet servers from
Adams & Associates or any other third-party company. Three of Respondent’s most senior
banquet employees said that they had never seen temporaries working in Respondent’s banquet 15
department, while another long-term employee recalled that she had seen temporaries working,
at most, once per year, during Christmas time. Union President Jones testified that prior to 2010,
the hotel used temporary banquet servers two to three times per year.
It is uncontested that from September 19, 2010, to July 24, 2011, Respondent regularly 20
brought in temporaries from subcontractor Adams & Associates to work as servers in its banquet
department.190 This was done without notifying or bargaining with the Union.
At some functions during the 2010–2011 banquet season half or more of the staff were
temporaries at times. The ratio of temporaries to Respondent’s servers per day or event varied 25
greatly. The number of temporaries used in a particular event ranged from one to 19.
During the 2010–2011 banquet season, many of Respondent’s senior servers received
very few shifts, despite being available to work, as discussed above. Further, the use of
temporary servers greatly affected Respondent’s banquet servers because they lost money by not 30
being scheduled. If Respondent’s servers were not working, they did not get their hours for
pension and vacation time.
Analysis
35
Subcontracting is a mandatory subject of bargaining if it involves nothing more than the
substitution of one group of workers for another to perform the same work and does not
constitute a change in the scope, nature, and direction of the enterprise. Sociedad Espanola de
Auxilio Mutuo y Beneficia de P.R., 342 NLRB 458, 458 (2004). Moreover, the expired
collective-bargaining agreement provided that if Respondent decided to subcontract bargaining 40
unit work, it would first notify and bargain with the Union. Respondent did neither.
Respondent contends that there can be no back pay liability since there is no evidence
that a server was available to work and would have worked but for not being scheduled

189 GC Exh. 2, pp. 11–12.
190 GC Exh. 92(a)–(cc).
JD(SF)–22–13
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because an Adam’s server took his or her place. Respondent further contends that there is no
evidence that union animus may have motivated the denial of a shift. I need not reach this
contention at this time since this issue should be reserved for compliance.
I find that Respondent violated Section 8(a)(1) and (5) of the Act by failing to comply 5
with the terms of the expired collective-bargaining agreement dealing with subcontracting.
j. In October 2010 Respondent reduced banquet server pay by reallocating part of their
gratuity to a third party provider
10
As reflected in article XX of the expired collective-bargaining agreement, Tips,
Gratuities and Service Charges191 As provided in the expired collective-bargaining agreement:
Gratuities will be allocated twenty percent (20%) to the employer and eighty
percent (80%) to Employees, with a guarantee of a minimum of thirteen percent 15
(13%).
Respondent has at all times material charged guest groups a 15 percent gratuity on their
food and beverage sales. An event that results in a $10,000 food and beverage bill will produce a
gratuity of $1500. The usual practice was that of the $1500 gratuity, $200 would be kept by 20
Respondent and $1300 would be distributed to the banquet employees.
Prior to Respondent’s regular use of temporary banquet servers, Respondent divided the
13 percentage points among the banquet servers based on the hours worked that day.192 During
the term of the collective-bargaining agreement, this practice was followed. Respondent added 25
together the total number of hours worked by banquet servers for the day, and then divided that
total number of hours worked into the gratuity. Since it is a pooled gratuity, if there were
multiple events in a day, the 13 percent gratuity of all the events was combined and then divided
evenly by the total number of hours worked that day.
30
When Respondent began using the Adams & Associates temporary servers from
September 2010 to July 2011, it paid Adams & Associates $20 per hour for each temporary
server provided.193 Respondent admitted that this $20 per hour came out of the 13 percent of the
gratuity pool normally allocated for Respondent’s bargaining unit banquet servers. After
reducing the gratuity pool allocated for bargaining unit banquet servers by the amount paid to 35
Adams & Associates, Respondent divided the remaining gratuity pool among Respondent’s unit
banquet servers.
The actual gratuity amount distributed to Respondent’s bargaining unit servers on days
when temporary servers worked varied based on the size of the event and hence the size of the 40
gratuity as well as the number of Adams & Associates employees used. Respondent used a
hypothetical example194 of the new gratuity system where the customer was charged $10,000 for
food and beverage where five servers worked for a total of 40 hours. Three of Respondent’s

191 GC Exh. 2, p. 12.
192 Ibid.
193 GC Exh. 92(a)–(cc).
194 R. Exh. 32.
JD(SF)–22–13
64
banquet servers worked 8 hours each at the event, for a total of 24 hours, and two Adams temps
worked 8 hours each, for a total of 16 hours demonstrated. Under example 2 Respondent
reduced the 13 percent gratuity to the bargaining unit servers by the amount paid to the Adams
temps, i.e., $20 per hour times 16 hours for a total of $320. The bargaining unit gratuity pool
was reduced from $1300, 13 percent of $10,000, to $980. The $980 was then divided among the 5
three unit servers.
Respondent admitted that this constituted a change from the way it had previously
distributed banquet gratuity. Respondent did not notify or offer to bargain with the Union before
this change occurred. 10
Analysis
Complaint paragraph 28(j) alleges that in about October 2010, Respondent reduced
banquet server compensation by reallocating a portion of their gratuities to pay for the services 15
of a third party provider of banquet servers.
The Board has found that the distribution of tips among employees is a mandatory subject
of bargaining and a unilateral change in the manner of tip distribution is unlawful. Stephenson
Haus, 279 NLRB 998, 1003 (1986); Statler Hilton Hotel, 191 NLRB 283, 284, 287 (1971).20
In the instant case the collective bargaining agreement provided for a minimum tip
distribution to employees of 13 percent. By reducing the gratuity pool by the amount owed to
Adams & Associates for use of its temps, Respondent reduced the tip pool below the
contractually agreed upon 13 percent without giving notice to or bargaining with the Union. 25
Respondent contends that this new method of distribution benefitted banquet employees
scheduled to work. While the unlawful use of subcontracted temps may have increased the share
of the tip pool to those unit employees left serving, as in Respondent’s hypothetical, the law is
clear that any unilateral change made without bargaining to impasse is unlawful even if it 30
benefits employees. Grosvenor Orlando Assoc., Ltd., 336 NLRB 613, 617 (2001). Moreover, as
the Supreme Court held: “[t]he employer is prohibited from making unilateral changes in
working conditions during negotiations—even though the terms of employment are thereby
improved—lest the union be denigrated in the employees’ eyes and its existence, as an inevitable
result, imperiled.” General Transformer Co., 173 NLRB 360, 376 (1968) (citing NLRB v. 35
Crompton-Highland Mills, Inc., 337 U.S. 217 (1949).
I find that in changing the allocation of money to the tip pool, Respondent violated
Section 8(a)(5) of the Act.
40
In October 2011, Respondent changed banquet set up and server job duties
In October 2011, Respondent changed banquet server and set up staffing and scheduling
As reflected in the banquet servers’ schedules before October 2011, Respondent’s 45
banquet department consisted of about 25 banquet servers, a banquet manager, banquet captains,
JD(SF)–22–13
65
banquet bartenders, and bartender backups.195 Servers’ duties included setting tablecloths,
silverware, napkins, and dishes on tables. Servers also prepared butter, creamers, and roll
baskets. Banquet servers served the food and cleared the dishes and plates. The banquet servers
also cleared the glassware and china from the tables. Servers picked up trash from the tops of the
tables, then removed linens. 5
The banquet setup schedules reflect that Respondent employed approximately 12 banquet
set up employees in the banquet department before October 15, 2011.196 Set up employees set up
tables and chairs, moved partition walls, brought stages, dance floors, and flags, cleaned the
room, vacuumed and laid out glasses, water, pens, and paper. After banquet events, set up broke 10
down the tables, put the tables on carts, stacked chairs, vacuumed, removed garbage, cleaned the
room, and set up the room for the next function.
Before October 2011, banquet set up shifts lasted 6 to 8 hours.197 Morning shift was from
about 6 a.m. to 2 p.m., and night shift was about 2 to 10 p.m. During high season more than one 15
set up employee worked each shift but during summer slow season one employee worked the
morning shift and two employees worked in the evening.
The collective-bargaining agreement seniority article provided at article XIV,
section 9,198 that:20
Employees may be cross-utilized in job classifications within their department other than
their regular job classification to perform available work in a temporary position.
In October 2011, Respondent restructured its banquet department as part of its linen-less 25
table initiative, through which it acquired brushed aluminum tables. In October 2011, before any
changes occurred, Respondent’s food and beverage director, Dorrance Scott told set up employee
Samuel Tiger that, although he had a hard time picking, Respondent would use Tiger as the
nighttime setup guy and employee Adel as morning set up. At the time, Tiger and Adel were
eighth and fourth in seniority, respectively.19930
In about October 2011, at a meeting of set up employees, Scott said that Respondent had
purchased new tables and was going to reduce the number of set up employees and combine
server and set up job duties. Scott also said if set up employees were not available to work at 4
a.m., they had no work. 35
In the first week of October 2011, Respondent conducted a meeting of all banquet
department employees together with General Manager Kranock, Scott, and Mathers. Kranock
announced he was going to make several changes in the departments. He said he was going to
have only one set up employee per shift. Kranock said Respondent was going to use different 40
types of tables and that duties of servers and set up would be combined. Mathers said banquet
employees would no longer be scheduled by seniority but on the basis of their attitude and
availability.

195 GC Exh. 73, p. 71.
196 GC Exh. 102, p. 31.
197 GC Exh. 102.
198 GC Exh. 2, p. 16.
199 GC Exh. 102, p. 27.
JD(SF)–22–13
66
As announced, the October 15, 2011 banquet set up schedule200 reflects there were only
two set up employees, Tiger and Adel. Consistent with Respondent’s combination of server and
set up duties, former set up employees Jun Sangalang, Efren Gardiola, Ener Pineda, Eric Pineda,
and Quenton could now be found listed on the banquet server schedule for the week of 5
November 5, 2011.201
As promised, in October 2011, banquet servers job duties changed. Respondent told the
servers to open tables, push carts loaded with chairs and tables, set chairs around tables, break
down meeting rooms, stack chairs, tape down register chords, vacuum and pick up garbage. All 10
of these duties had been formerly performed by set up employees.

Respondent did not notify or offer to bargain with the Union before announcing or
implementing any of the banquet changes. Only after the Section 10(j) injunction requiring
Respondent to recognize and bargain with the Union, months after the changes occurred, did 15
Respondent even discuss the purchase of the new tables with Union President Jones.
The changes to the banquet department, including the use of only two set up and the
practice of assigning servers to set up work, are ongoing.
20
Analysis
Complaint paragraph 28(k) alleges that in about October 2011, Respondent changed
banquet set up and banquet server job duties and paragraph 28(l) alleges that in October 2011,
Respondent changed banquet server and set up staffing and scheduling.25
Job descriptions have been found to be a mandatory subject of bargaining and a material
change in job description without notice to the union or bargaining to impasse has been found to
be a unilateral change. ABB, Inc., 355 NLRB 13, 18. (2010). Further, employee job assignments
is a mandatory subject of bargaining and a material change in job assignments without notice to 30
or bargaining with the union is a unilateral change. Flambeau Airmold Corp., 334 NLRB 165,
171–172 (2001). In addition, the Board has found an increase in job duties to constitute an
unlawful unilateral change. Bundy Corp., 292 NLRB 671, 678 (1989). As noted above,
seniority provisions of an expired contract survive and must be followed absent impasse. L & L
Wine & Liquor Corporation, 323 NLRB 848, 853 (1997). The Board has found scheduling of 35
employees is a mandatory subject of bargaining. Beverly Health and Rehabilitation Services,
Inc., 335 NLRB 635, 636 (2001); Benteler Industries, Inc., 323 NLRB 712, 715 (1997).
General Counsel contends that Respondent unlawfully changed employees’ terms and
conditions of employment by reducing the number of regularly scheduled banquet set up 40
employees, choosing which banquet set up employees would continue working as set up
employees without regard to seniority, changing the schedules and hours of the former set up
employees in the new combined position of set up/server, and requiring banquet servers and
former set up employees to perform a new set up/server job.

200 GC Exh. 102, p. 32.
201 GC Exh. 73, p. 73. Respondent did not produce the schedules for the weeks of September 19–November 4.
2011.
JD(SF)–22–13
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Respondents’ changes substantially affected both the set up employees’ and servers’ jobs.
For the two set up employees who remained, they had more work to perform and their hours
were changed. Those set up employees who became banquet servers received fewer hours, had
changed job duties, and their pay rates were changed. Servers had the entire nature of work 5
performed changed and they performed more manual labor involved. The changes to the
working condition of the servers and set up employees was material and substantial.
Respondent contends that it implemented a company-wide linen less banquet table
program and that its right to implement this change falls squarely within its rights under the10
expired collective-bargaining agreement’s management clause provision. Unfortunately for
Respondent, a management rights clause does not survive the expiration of a collective-
bargaining agreement. The Board consistently has held that a waiver of bargaining rights under a
management rights clause does not survive the expiration of a contract. Beverly Health and
Rehabilitation Services, Inc., 335 NLRB 635, 655 (2001); Buck Creek Coal, 310 NLRB 1240 15
(1993); Control Services, 303 NLRB 481 (1991), enfd. 975 F.2d 1551 (3d Cir. 1992), and enfd.
961 F.2d 1568 (3d Cir. 1992); Kendall College of Art, 288 NLRB l205, 1212 (1988).
Accordingly, Respondent’s argument regarding the linen less tables is rejected.
Since changes to seniority, scheduling, hours, and job duties are mandatory subjects of 20
bargaining, Respondent violated Section 8(a)(5) of the Act by implementing these changes
without first notifying and offering to bargain with the Union.
k. The March 30 and April 20, 2010 information requests concerning
Server Fay Gavin’s grievance
On March 24, 2010, the Union filed a grievance regarding Fay Gavin’s 25
March 19, 2010,202 discipline for allegedly coercing an employee into wearing a union button.
On March 30, 2010, Esparza requested the name of the employee that accused Gavin of
wrongdoing.203
On April 7 and 27, 2010,204 Respondent replied to the Union, but never provided the 30
requested information until June 13, 2012. On April 27, 2010, Respondent provided the Union
with a copy of the employee’s statement with the name redacted, and asserted that this witness
did not wish to speak with the Union.
Complaint paragraph 29(a) alleges that since about March 30, 2010, the Union has
requested that Respondent furnish it with the name of the associate that accuses Gavin of 35
wrongdoing.

An employer has an obligation to provide relevant information to the Union in order for it
to perform its duties as collective-bargaining representative. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). Names of witnesses to an incident for which an employee received discipline 40
are presumptively relevant. Metropolitan Edison Co., 330 NLRB 107 (1999); Boyertown
Packaging Corp., 303 NLRB 441 (1991); Pennsylvania Power, 301 NLRB 1104 (1991).

202 GC Exh. 3.
203 GC Exh. 5.
204 GC Exhs. 6 and 7.
JD(SF)–22–13
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When an employer contends that relevant information requested by the union is
confidential, the employer has the burden of establishing the confidentiality interest. With
respect to assertions of confidentiality, the Board balances the union’s need for the information
against the employer’s legitimate and substantial confidentiality interest. Further, an employer 5
claiming that relevant information is confidential has a duty to seek an accommodation.
Piedmont Gardens, 359 NLRB No. 46, Slip op. at 2 (2012).
When an employer argues that disclosure of a witness’ name would result in harassment,
the employer has a duty to produce the witness names where the concerns of harassment were 10
speculative and outweighed by the union’s need for the information.” Piedmont Gardens, supra
at 3–4; Northern Indiana Public Service Co., 347 NLRB 210 (2006); Metropolitan Edison Co.,
330 NLRB 107 (1999).

Respondent unlawfully failed to respond to the Union’s March 30, 2010, request for the 15
name of the associate accusing Gavin of alleged wrongdoings. While Respondent may contend
that it did not provide the name of the witness out of concerns for threats and confidentiality,
Fullenkamp’s testimony failed to show that concerns regarding threats were anything more than
speculation, and does not outweigh the Union’s long-established right to obtain the names of
witnesses to an incident leading to the discipline of an employee. Respondent could have 20
requested that the Union keep the witness’s name confidential; yet Respondent presented no
evidence that it did so. As such, Respondent violated Section 8(a)(1) and (5).
l. The April 20, 2010 information requests concerning the Audelia Hernandez, Ana
Rodriguez and Shirley Grimes’ grievances.
25
On April 14 and 15, 2010, Respondent issued identical disciplines to Grimes, Hernandez,
and Rodriguez for soliciting signatures while on the clock in a harassing and intimidating
manner. On April 20, 2010, the Union filed separate grievances205 on behalf of Grimes,
Hernandez, and Rodriguez. In each grievance the Union made an information request for a list
of witnesses to start the investigation. On April 20, 2010, Respondent replied206 to each 30
grievance and refused to provide the Union with a list of witnesses at that time.
On April 30, 2010, the Union sent Respondent a follow-up letter207 renewing its request
that Respondent list the persons accusing Grimes of inappropriate behavior. On May 5, 2010,
Fullenkamp responded208 to Esparza and refused to provide the names of employee witnesses, 35
claiming that these employees expressed concerns about having their identities revealed to the
Union and feared harassment and/or retaliation from the Union. Respondent presented no
evidence showing the basis for employees’ fear of harassment from the Union.

While the Union has never withdrawn Grimes, Hernandez, or Rodriguez’ grievances, it 40
withdrew the information requests on June 13, 2012.

205 GC Exhs. 8, 10, and 12.
206 GC Exhs. 9, 11, and 13.
207 R. Exh. 2.
208 R. Exh. 3.
JD(SF)–22–13
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Complaint paragraph 29((b) through (d) alleges that Since on about April 20, 2010, the
Union has requested that Respondent furnish it with a list of witnesses relating to the grievances
of Grimes, Hernandez, and Rodriguez.
For the reasons cited above with respect to the Gavin information request, Respondent 5
violated the Act by refusing to provide the names of witnesses regarding the disciplines of
Shirley Grimes, Audelia Hernandez, and Ana Rodriguez. As a result, Respondent violated
Section 8(a)(5) by failing to provide relevant, requested information to the Union.
m. The June 11, 2010 information request for schedules for by department and an updated
employee roster10
On June 11, 2010,209 the Union made a written request of Respondent for 3 weeks of
schedules for the banquet, engineering, guest services, housekeeping, kitchen, and restaurant
departments at the hotel. In the same letter the Union requested an updated employee roster,
including the employee’s name, date of hire, date of birth, job classification, address, and phone 15
number. On June 17, 2010,210 Fullenkamp requested the basis for the Union’s need for the
requested information. On July 12, 2010,211 the Union explained that the requested information
was relevant and necessary both for effective bargaining and representation of unit members and
renewed the Union’s requests for information. Respondent failed to respond further and failed to
provide the requested information.20
On June 13, 2012, the Union withdrew this request for information.
Complaint paragraph 29(e) alleges that since about June 11, 2011, the Union requested
that Respondent furnish it with schedules and an undated employee roster.25
The Board has held that information concerning bargaining unit employee information is
presumptively relevant, including, names, addresses, phone numbers, job classification, date of
birth, and seniority lists and data. Essex Valley Visiting Nurses Assoc., 353 NLRB 1044 (2009);
River Oak Ctr. for Children, 345 NLRB 1335 (2005); Staff Builders Services, 289 NLRB 373 30
(1988). Similarly, the Board has held the schedules and hours of work for bargaining unit
employees are presumptively relevant. Postal Service, 308 NLRB 358 (1992).
Respondent contends that article XXXV of the expired collective-bargaining
agreement212 does not require Respondent to provide the information requested. Article XXXV 35
provides:
Section 1. Except as may be specifically provided elsewhere in this Agreement,
neither party shall be required during the term of this Agreement to provide the
other party with any data, documents or information in its possession or under its40
control for any purpose except insofar as such data, documents, or information may be
relevant to a grievance at any stage pursuant to Article VII.

209 GC Exh. 14.
210 GC Exh. 15.
211 GC Exh. 16.
212 GC Exh. 2, p. 39.
JD(SF)–22–13
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Respondent reasons that because counsel for the General Counsel failed to prove that the
June 11, 2010, information request was relevant to a grievance under article VII of the
collective-bargaining agreement, there was no obligation under expired article XXXV for
Respondent to produce the information requested.5
Essentially, Respondent is arguing that this language amounts to a waiver by the Union
of its rights, much like a management-rights clause. Like a management-rights clause, however,
this type of waiver language does not survive the contract’s expiration. Thus, Respondent’s
argument is rejected. Beverly Health and Rehabilitation Services, Inc., 335 NLRB 635, 655 10
(2001); Buck Creek Coal, 310 NLRB 1240 (1993); Control Services, 303 NLRB 481 (1991),
enfd. 975 F.2d 1551 (3d Cir. 1992), and enfd. 961 F.2d 1568 (3d Cir. 1992); Kendall College of
Art, 288 NLRB l205, 1212 (1988).
I find that Respondent violated Section 8(a)(1) and (5) of the Act by failing to provide 15
presumptively relevant information including schedules and an employee roster including name,
date of hire, date of birth, job classification, address, and phone number.
CONCLUSIONS OF LAW
1. Respondent Remington Lodging & Hospitality, LLC d/b/a/ the Sheraton Anchorage is 20
an employer engaged in commerce and in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Unite-Here! Local 878, AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act and is the exclusive collective-bargaining representative of Respondent’s 25
employees in the following appropriate collective-bargaining unit:
All the employees employed at the Sheraton Anchorage hotel, with the exception of
guards, supervisors, managerial employees, clerical employees, and confidential
employees, which unit is appropriate for the purposes of collective bargaining within 30
the meaning of Section 9(b) of the Act.
3. By engaging in the following conduct, the Respondent committed unfair labor
practices in violation of Section 8(a)(1) of the Act.
35
(a) Maintaining and enforcing the following access rule in its employee handbook:
Employees “agree not to return to the Hotel before or after [their] working hours
without authorization from [their] manager.”
40
(b) Maintaining and enforcing the following access rule in its employee handbook:
Employees “must confine their presence in the Hotel to the area of their job
assignment and work duties. It is not permissible to roam the property at will or
visit other parts of the Hotel, parking lots, or outside facilities without permission 45
of the immediate Department Head.
JD(SF)–22–13
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(c) Maintaining and enforcing the following solicitation and distribution rule
in its employee handbook:
“Distribution of any literature, pamphlets, or other materials in a guest or work
area is prohibited . . . Solicitation of guests by associates at any time for any 5
purpose is also inappropriate.”
(d) Interrogating employees about their union activities.
(e) Engaging in surveillance of its employees’ union activities.10
(f) Creating the impression that its employees’ union activities were under
surveillance.
(g) Coercing its employees regarding their testimony at an NLRB hearing. 15
(h) Telling employees to remove their union buttons.
(i) Prohibiting off duty employees from distributing union literature on hotel
property 20
(j) Threatening to call the police on its employees or have its employees arrested
because they were engaged in union activity.
4. By engaging in the following conduct, the Respondents committed unfair labor 25
practices in violation of Section 8(a)(3) of the Act:
(a) By disciplining its employee Fay Gavin on March 19, 2010, reducing her hours in
September 2010, giving her a poor evaluation on September 24, 2010, and by disciplining her on
November 3, 2010, because she engaged in union activities.30
(b) By disciplining its employee Ana Rodriguez on April 14, 2010, because she
engaged in union activities.
(c) By disciplining its employee Audelia Hernandez on April 14, 2010, because she 35
engaged in union activities.
(d) By disciplining its employee Shirley Grimes on April 15, 2010, and by
disciplining her on January 19, 2011, because she engaged in union activities.
40
(e) By disciplining its employee Dexter Wray on May 10, 2010, and July 7, 2010,
and by discharging him on October 24, 2010, because he engaged in union activities.
(f) By discharging its employee Yanira Escalante Medrano because she engaged in
union activities.45
JD(SF)–22–13
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(g) By changing its employee Elda Buezo’s schedule from part time to on call on
April 15, 2011, by reducing her hours from April to May 2011, and by discharging her on June
15, 2011, because she engaged in union activities.
(h) By decreasing the shifts of its banquet employees Joanna Littau, Fay Gavin, John 5
Fields, and Vicki Williams beginning in August 2010, because they engaged in union activities.
(i) By decreasing the hours of its restaurant employees Gina Tubman and Kyoko
Akers beginning in July 2010, because they engaged in union activities.
10
(j) By increasing the number of scheduled shifts for banquet employees Supaporn
(Sue) Kennedy, Nestor Arguson, Flora Sanchez, Stella Hernandez, Carmelita Muse, and Katie
Keim beginning in August 2010, to discourage employees from engaging in union activities.
15
5. By engaging in the following conduct, the Respondents committed unfair labor
practices in violation of Section 8(a)(4) of the Act:
(a) By discharging its employee Dexter Wray on October 24, 2010, because he gave
testimony to the Board in the form of affidavits and testified at an unfair labor practice 20
proceeding before the Board in Case 19–CA–32148 et al.
(b) By discharging its employee Yanira Escalante Medrano because she gave
testimony to the Board in the form of affidavits and testified at an unfair labor practice
proceeding before the Board in Case 19–CA–32148 et al. 25
6. By engaging in the following conduct, the Respondents committed unfair labor
practices in violation of Section 8(a)(5) of the Act:
(a) By unilaterally and without bargaining with the Union, banning Union 30
Representative Daniel Esparza from the hotel on April 21, 2010.
(b) By unilaterally and without bargaining with the Union, banning the Union and all
of its representatives from the hotel on July 2, 2010.
35
(c) By unilaterally and without bargaining with the Union, eliminating banquet
employees’ scheduling preference sheets in July 2010.
(d) By unilaterally and without bargaining with the Union, terminating its practice of
posting banquet employee schedules by noon on Fridays in July 2010.40
(e) By unilaterally and without bargaining with the Union, ceasing to assign work
and scheduling employees according to seniority in July 2010.
(f) By unilaterally and without bargaining with the Union, changing the sick leave 45
policy in the parties’ expired collective-bargaining agreement in July 2010.
JD(SF)–22–13
73
(g) By unilaterally and without bargaining with the Union, ceasing to make
contributions to the Unite Here National Retirement Fund on behalf of bargaining unit
employees in July 2010.
(h) By unilaterally and without bargaining with the Union, subcontracting bargaining 5
unit work beginning in October 2010.
(i) By unilaterally and without bargaining with the Union, reducing banquet server
compensation by allocating a portion of their gratuities to pay for the services of third party
banquet servers in about October 2010.10
(j) By unilaterally and without bargaining with the Union, changing banquet server
and set up duties in October 2011.
(k) By unilaterally and without bargaining with the Union, changing banquet server 15
and set up staffing and scheduling in October 2011.
(l) By failing and refusing to provide the Union with information necessary for and
relevant to the Union’s performance of its duties as the exclusive collective-bargaining
representative of bargaining unit employees including:20
(1) The name of the associate that accused Fay Gavin of wrongdoing in the
grievance of unit employee Gavin.
(2) A list of witnesses to start the investigation in the grievance of bargaining unit 25
employee Shirley Grimes.
(3) A list of witnesses to start the investigation in the grievance of bargaining unit
employee Audelia Hernandez.
30
(4) A list of witnesses to start the investigation in the grievance of bargaining unit
employee Ana Rodriguez.
(5) The most recent schedules for the week ending June 5th and 12th and the
upcoming schedules for June 18th for the banquet, engineering, guest 35
services, housekeeping, kitchen and restaurant departments.
(6) An updated employee roster including the employees’ first and last names,
date of hire, date of birth, job classification, address and phone number.
REMEDY40
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
45
The evidence having established that the Respondent discharged its employees Dexter
Wray, Yanira Escalante Medrano, and Elda Buezo, issued disciplinary warnings to its employees
JD(SF)–22–13
74
Fay Gavin, Ana Rodriguez, Audelia Hernandez, Shirley Grimes, and Dexter Wray, changed the
schedule of Elda Buezo to on call, and reduced the hours or shifts of Elda Buezo, Joanne Littau,
Fay Gavin, John Fields, Vicki Williams, Gina Tubman, and Kyoko Akers, my recommended
order requires the Respondent to make them whole. M y recommended order also requires the
Respondent to offer Dexter Wray, Yanira Escalante Medrano, and Elda Buezo immediate 5
reinstatement to their former positions, displacing if necessary any replacements, or if their
positions no longer exist, to substantially equivalent positions, without loss of seniority and other
privileges previously enjoyed, and to make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them. My recommended order further
requires that backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 10
(1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987),
plus daily compound interest as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010).
The recommended order also requires that the Respondent shall expunge from its files 15
and records any and all references to the unlawful discharges and warnings issued to the above
named employees, and to notify them in writing that this has been done and that the unlawful
discrimination will not be used against them in any way. Sterling Sugars, Inc., 261 NLRB 472
(1982). Further, the Respondent must not make any reference to the expunged material in
response to any inquiry from any employer, employment agency, unemployment insurance 20
office, or reference seeker, or use the expunged material against them in any other way.
Also, having found various provisions in the Respondent’s employee handbook
unlawful, the recommended order requires that the Respondent revise or rescind the unlawful
rules, and advise its employees in writing that said rules have been so revised or rescinded.25
Further, as I found that the Respondent made certain unlawful unilateral changes in
the terms and conditions of employment of the unit employees, I shall recommend that the
Respondent be ordered to, at the request of the Union, rescind any and all of those changes.
These include banning of Union Representative Daniel Esparza as well as the Union and all 30
union representatives from the hotel property, the elimination of the use of scheduling
preference sheets for banquet employees, the failure to post banquet employee schedules by
noon on Fridays, the cessation of assigning work and scheduling employees according to
seniority, changes in sick leave policy from the terms of the collective-bargaining agreement,
the cessation of contributions to the Unite Here National Retirement Fund, the subcontracting 35
of banquet server work, reduction in compensation for banquet servers by reallocating a
portion of their gratuity to pay for third party banquet serves, changing banquet server and set
up job duties, and changing the scheduling and staffing of banquet servers and set up
employees.
40
The Respondent shall be required to make whole bargaining unit employees for all
losses they suffered as a result of the Respondent’s unlawful unilateral changes, plus daily
compound interest as prescribed in Kentucky River Medical Center, supra.
The Respondent shall be required to post a notice that assures its employees that it 45
will respect their rights under the Act. As the Respondent has a large number of
employees whose primary language is Spanish, the Respondent shall be required to post
the paper notice in both English and Spanish. A significant number of the Respondent’s
employees speak neither English nor Spanish as their primary language. However, it
JD(SF)–22–13
75
would be impractical to translate the notice into each of the many native languages spoken
by each and every employee.
In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or internet site, and/or other electronic 5
means, if the Respondent customarily communicates with its employees by such means.
J. Picini Flooring, 356 NLRB No. 8 (2010).
General Counsel also requests that discriminatees be reimbursed for any excess taxes
owed as a result of a lump-sum backpay award and that Respondent be ordered to complete 10
the appropriate paperwork as set forth in IRS Publication 975 to notify the Social Security
Administration what periods to which the backpay should be allocated as requested in the
remedy section of the complaint.
In Latino Express, Inc., 359 NLRB No. 44 (2012), the Board ordered that retroactively it 15
will routinely require the filing of a report with the Social Security Administration allocating
backpay awards to the appropriate calendar quarters. The Board also held that it will routinely
require respondents to compensate employees for the adverse tax consequences of receiving one
or more lump-sum backpay awards covering periods longer than 1 year. The Board concluded
that it is the General Counsel’s burden to prove and quantify the extent of any adverse tax 20
consequences resulting from the lump-sum backpay award and that such matters shall be
resolved in compliance proceedings.
Pursuant to Latino Express, I will order that Respondent shall file a report with the Social
Security Administration allocating any backpay awards to the appropriate calendar quarters. 25
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.213
ORDER
30
The Respondent, Remington Lodging & Hospitality, LLC d/b/a/ the Sheraton Anchorage
its successors, and assigns, shall
1. Cease and desist from
35
(a) Maintaining and enforcing the following access rule in its employee handbook:
Employees “agree not to return to the Hotel before or after [their] working
hours without authorization from [their] manager.”
40
(b) Maintaining and enforcing the following access rule in its employee handbook:
Employees “must confine their presence in the Hotel to the area of their
job assignment and work duties. It is not permissible to roam the property

213 If no exceptions are filed as provided by Sec.102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections shall be waived for all purposes.
JD(SF)–22–13
76
at will or visit other parts of the Hotel, parking lots, or outside facilities
without permission of the immediate Department Head.”
(c) Maintaining and enforcing the following solicitation and distribution rule
in its employee handbook:5
“Distribution of any literature, pamphlets, or other materials in a guest
orwork area is prohibited . . . Solicitation of guests by associates at any
time for any purpose is also inappropriate.”
10
(d) Interrogating employees about their union activities.
(e) Engaging in surveillance of its employees’ union activities.
(f) Creating the impression that its employees’ union activities were under 15
surveillance.
(g) Coercing its employees regarding their testimony at an NLRB hearing.
(h)Telling employees to remove their union buttons. 20
(i) Prohibiting off duty employees from distributing union literature on hotel
property.
(j) Threatening to call the police on its employees or have its employees arrested 25
because they were engaged in union activity.
(k) Disciplining its employee Fay Gavin on March 19, 2010, reducing her hours in
September 2010, giving her a poor evaluation on September 24, 2010, and by disciplining her on
November 3, 2010, because she engaged in union activities.30
(l) Disciplining its employee Ana Rodriguez on April 14, 2010, because she engaged
in union activities.
(m) Disciplining its employee Audelia Hernandez on April 14, 2010, because she 35
engaged in union activities.
(n) Disciplining its employee Shirley Grimes on April 15, 2010, and by disciplining
her on January 19, 2011, because she engaged in union activities.
40
(o) Disciplining its employee Dexter Wray on May 10, 2010, and July 7, 2010, and
by discharging him on October 24, 2010, because he engaged in union activities and for giving
testimony to the Board in the form of affidavits and testifying at an unfair labor practice
proceeding before the Board in Case 19–CA–32148 et al.
45
(p) Discharging its employee Yanira Escalante Medrano because she engaged in
union activities and for giving testimony to the Board in the form of affidavits and testifying at
an unfair labor practice proceeding before the Board in Case 19–CA–32148 et al.
JD(SF)–22–13
77
(q) Changing its employee Elda Buezo’s schedule from part time to on call on
April 15, 2011, by reducing her hours from April to May 2011, and by discharging her on June
15, 2011, because she engaged in union activities.
5
(r) Decreasing the shifts of its banquet employees Joanna Littau, Fay Gavin, John
Fields, and Vicki Williams beginning in August 2010, because they engaged in union activities.
(s) Decreasing the hours of its restaurant employees Gina Tubman and Kyoko Akers
beginning in July 2010, because they engaged in union activities.10
(t) Increasing the number of scheduled shifts for banquet employees Supaporn (Sue)
Kennedy, Nestor Arguson, Flora Sanchez, Stella Hernandez, Carmelita Muse, and Katie Keim
beginning in August 2010, to discourage employees from engaging in union activities.
15
(u) Refusing to bargain in good faith with Unite Here!, Local 878, AFL–CIO, as the
exclusive collective-bargaining representative of its employees in the following collective-
bargaining unit:
All the employees employed at the Sheraton Anchorage hotel, with the exception 20
of guards, supervisors, managerial employees, clerical employees, and
confidential employees, which unit is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
(v) Unilaterally and without bargaining with the Union, banning Union 25
Representative Daniel Esparza from the hotel on April 21, 2010.
(w) Unilaterally and without bargaining with the Union, banning the Union and all of
its representatives from the hotel on July 2, 2010.
30
(x) Unilaterally and without bargaining with the Union, eliminating banquet
employees’ scheduling preference sheets in July 2010.
(y) Unilaterally and without bargaining with the Union, terminating its practice of
posting banquet employee schedules by noon on Fridays in July 2010.35
(z) Unilaterally and without bargaining with the Union, ceasing to assign work and
scheduling employees according to seniority in July 2010.
(aa) Unilaterally and without bargaining with the Union, changing the sick leave 40
policy in the parties’ expired collective-bargaining agreement in July 2010.
(bb) Unilaterally and without bargaining with the Union, ceasing to make
contributions to the Unite Here National Retirement Fund on behalf of bargaining unit
employees in July 2010.45
(cc) Unilaterally and without bargaining with the Union, subcontracting bargaining
unit work beginning in October 2010.
JD(SF)–22–13
78
(dd) Unilaterally and without bargaining with the Union, reducing banquet server
compensation by allocating a portion of their gratuities to pay for the services of third party
banquet servers in about October 2010.
5
(ee) Unilaterally and without bargaining with the Union, changing banquet server and
set up duties in October 2011.
(ff) Unilaterally and without bargaining with the Union, changing banquet server and
set up staffing and scheduling in October 2011.10
(gg) Failing and refusing to provide the Union with information necessary for and
relevant to the Union’s performance of its duties as the exclusive collective-bargaining
representative of bargaining unit employees including:
15
1. The name of the associate that accused Fay Gavin of wrongdoing in the
grievance of unit employee Gavin.
2. a list of witnesses to start the investigation in the grievance of bargaining unit
employee Shirley Grimes.20
3. a list of witnesses to start the investigation in the grievance of bargaining unit
employee Audelia Hernandez.
4. a list of witnesses to start the investigation in the grievance of bargaining unit 25
employee Ana Rodriguez.
5. the most recent schedules for the week ending June 5th and 12th and the
upcoming schedules for June 18th for the banquet, engineering, guest services,
housekeeping, kitchen and restaurant departments.30
6. an updated employee roster including the employees’ first and last names, date
of hire, date of birth, job classification, address and phone number.
(ii) In any other manner interfering with, restraining, or coercing employees in the 35
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) At the request of the Union, the Respondent shall rescind the unilateral changes 40
made in its employees’ terms and conditions of employment implemented on or about July 2010,
which changes included eliminating banquet servers’ scheduling preference sheets, terminating
its practice of posting banquet employees’ schedules by noon on Fridays, ceasing the assignment
of work and scheduling of employees according to seniority, changing its sick leave policy from
that contained in the expired collective bargaining agreement, and ceasing to make contributions 45
to the Unite Here National Retirement Fund;
JD(SF)–22–13
79
(b) At the request of the Union, the Respondent shall rescind the unilateral changes
made in its employees’ terms and conditions of employment implemented on or about
October 2011, including the subcontracting of bargaining unit server work, reducing banquet
server compensation by reallocating a portion of their gratuity to pay for third party banquet
servers, changing banquet server and set up job duties, and changing banquet server and set up 5
staffing and scheduling.
(c) At the request of the Union, the Respondent shall grant reasonable access to the
hotel upon reasonable notice to Union Representative Daniel Esparza and all union
representatives.10
(d) Make whole its employees for any losses incurred as a result of its unilateral
changes made in the terms and conditions of their employment, plus interest as provided for in
the Remedy section of this decision.
15
(e) Within 14 days of the Board’s Order, offer Dexter Wray, Yanira Escalante
Medrano, and Elda Buezo full reinstatement to their former jobs, or if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their seniority or other rights or
privileges previously enjoyed;
20
(f) Within 14 days of the Board’s Order, rescind the suspensions, written disciplines
and poor evaluations issued to Fay Gavin, Ana Rodriguez, Audelia Hernandez, Shirley Grimes,
and Dexter Wray.
(g) Make Dexter Wray, Yanira Escalante Medrano, Elda Buezo, Gina Tubman, 25
Joanna Littau, Fay Gavin, John Fields, Vicki Williams, and Kyoko Akers whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(h) Within 14 days of the Board’s Order, remove from its files any references to the 30
unlawful discharges, suspensions, written disciplines and poor evaluations of Dexter Wray,
Yanira Escalante Medrano, Elda Buezo, Fay Gavin, Ana Rodriguez, Audelia Hernandez, and
Shirley Grimes and inform them in writing that this has been done, and that the Respondent’s
unlawful discrimination against them will not be used against them as the basis of any future
personnel actions, or referred to in response to any inquiry from any employer, employment 35
agency, unemployment insurance office, or reference seeker, or otherwise used against them.
(i) 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 designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records 40
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay and other earrings and benefits due
under the terms of this Order;
(j) Within 14 days of the Board’s Order, revise or rescind the rules in its employee 45
handbook where employees “agree not to return to the hotel before or after [their] working hours
without authorization from [their] manager;”
JD(SF)–22–13
80
(k) Within 14 days of the Board’s Order, revise or rescind the rules in its employee
handbook where employees “must confine their presence in the hotel to the area of their job
assignment and work duties. It is not permissible to roam the property at will or visit other parts
of the hotel, parking lots, or outside facilities without the permission of the immediate
Department Head;”5
(l) Within 14 days of the Board’s Order, revise or rescind the rules in its employee
handbook where “distribution of any literature, pamphlets, or other material in a guest or work
area is prohibited . . . . Solicitation of guests by associates at anytime for any purpose is also
inappropriate;”10
(m) Within 14 days after service by the Region, post at its hotel in Anchorage,
Alaska, copies of the attached notice marked “Appendix” in both English and Spanish. Copies
of the notice, on forms provided by the Regional Director for Region 19, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and maintained 15
for 60 consecutive days in conspicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not 20
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since July of 2009; and25
(n) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
30
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of
the Act not specifically found.
Dated, Washington, D.C. June 6, 201335
______________________
John J. McCarrick
Administrative Law Judge40
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
FEDERAL LAW GIVES EMPLOYEES THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Chose not to engage in any of these protected activities
After a trial at which we appeared, argued and presented evidence, the National Labor Relations
Board has found that we violated the National Labor Relations Act and has directed us to post
this notice to employees in both English and Spanish and to abide by its terms.
Accordingly, we give our employees the following assurances:
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT refuse to recognize and bargain collectively with UNITE-HERE!, Local 878,
AFL–CIO (the Union), as the exclusive collective-bargaining representative of our hotel
employees, including by unlawfully withdrawing recognition of the Union.
WE WILL NOT ban the Union or its representatives from our hotel without first bargaining with
your Union about it.
WE WILL NOT eliminate banquet employees’ scheduling preference sheets without first
bargaining with your Union about it.
WE WILL NOT stop posting banquet employees schedules by noon on Fridays without first
bargaining with your Union about it.
WE WILL NOT stop assigning work and scheduling employees by seniority without first
bargaining with your Union about it.
WE WILL NOT change our sick leave policy from the terms of the expired collective-bargaining
agreement to that contained in our employee handbook without first bargaining with your Union
about it.
WE WILL NOT cease making contributions to the Unite Here National Retirement Fund for you
without first bargaining with your Union about it.
WE WILL NOT subcontract banquet server work without first bargaining with your Union about it.
WE WILL NOT reduce banquet server pay by giving a part of your gratuity to pay for third party
banquet servers without first bargaining with your Union about it.
WE WILL NOT change the job duties of banquet servers or set up employees without first
bargaining with your Union about it.
WE WILL NOT change banquet server and set up staffing and scheduling without first bargaining
with your Union about it.
WE WILL NOT refuse to provide your Union with information that is relevant and necessary for
the Union to perform its job as your collective-bargaining representative.
WE WILL NOT interrogate you about your feelings towards the Union.
WE WILL NOT spy on your union activities or create the impression we are spying on your union
activities by photographing or videotaping those activities or by being present in your cafeteria
for excessive periods of time.
WE WILL NOT demand that you stop wearing your union buttons.
WE WILL NOT try to improperly influence your testimony at an NLRB hearing.
WE WILL NOT maintain and/or enforce our employee handbook rule that you agree not to return
to the hotel before or after your working hours without prior authorization from your manager.
WE WILL NOT maintain and/or enforce our employee handbook rule that you must confine your
presence in the hotel to the area of your job assignment and work duties, and that you are not
permitted to roam the property at will or visit other parts of the hotel, parking lots, or outside
facilities without prior permission of the immediate department head.
WE WILL NOT maintain and/or enforce our employee handbook rule that distribution of any
literature, pamphlets, or other materials in a guest or work area is prohibited, or that solicitation
of guests by associates at any time for any purpose is inappropriate.
WE WILL NOT threaten to call the police or have you arrested for handbilling outside the doors of
our hotel seeking to have members of the public boycott our hotel.
WE WILL NOT discipline you for concertedly handbilling outside the doors of our hotel seeking to
have members of the public boycott our hotel.
WE WILL NOT discipline you for soliciting signatures of employees in support of a petition to
have an employee reinstated.
WE WILL NOT discipline you, fire you, give you a poor evaluation, cut your hours of employment,
reduce you from part time to on call, decrease your shifts or increase your shifts in order to
discourage your union or other activities that are protected under Section 7 of the National Labor
Relations Act or for giving testimony at an NLRB hearing.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by the National Labor Relations Act.
WE WILL recognize and, on request, bargain collectively with the Union as the exclusive
representative of our hotel employees with respect to wages, hours, and other terms and
conditions of employment and, if an agreement is reached, embody it in a signed document.
WE WILL provide the Union with the information that it requested on March 30, 2010, regarding
witness named in the Gavin grievance, the information requested on April 20, 2010, regarding
the Grimes’ Hernandez, and Rodriguez grievances, and the information requested on June 11,
2010, regarding department schedules and an updated employee roster.
WE WILL resume making payments to the Unite Here National Retirement Fund.
WE WILL reinstate our policies of using employee preference sheets for scheduling, of posting
banquet schedules by noon on Fridays, of assigning work and scheduling employees by
seniority, and of following the expired collective bargaining agreement policies regarding sick
leave.
WE WILL recognize your right to engage in protected concerted and union activity by wearing
union buttons.
WE WILL recognize your right to engage in protected concerted and union activity by handbilling
our customers outside the front doors to the hotel.
WE WILL recognize your right to solicit employee signatures during nonworking time for
petitions to us dealing with wages, hours, and other terms and conditions of employment.
WE HAVE reinstated Dexter Wray, Yanira Escalante Medrano, and Elda Buezo to their former
positions of employment.
WE HAVE made Dexter Wray, Yanira Escalante Medrano, Elda Buezo, Gina Tubman, Kyoko
Akers, Joanna Littau, Fay Gavin, John Fields, and Vicki Williams whole for any loss of earnings
and benefits, including interest, they sustained as a result of our discharges, and reduction in
shifts and hours.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any and all
records of the discrimination against Dexter Wray, Yanira Escalante Medrano, Elda Buezo, Gina
Tubman, Kyoko Akers, Joanna Littau, Fay Gavin, John Fields, Vicki Williams, Ana Rodriguez,
and Audelia Hernandez, and WE WILL within 3 days thereafter, notify them in writing that we
have taken this action, and that the material removed will not be used as a basis for any future
personnel action against them or referred to in response to any inquiry from any employer,
employment agency, unemployment insurance office, or reference seeker, or otherwise used
against them.
WE WILL expunge or revise the rule from our employee handbook that employees may not return
to the hotel before or after their working hours without authorization from their manager.
WE WILL expunge or revise the rule from our employee handbook that employees must confine
their presence in the hotel to the area of their job assignment and work duties, and that they may
not roam the property at will or visit other parts of the hotel, parking lots, or outside facilities
without the permission of their immediate department heads.
WE WILL expunge or revise the rule from our employee handbook that prohibits employees from
distribution of any literature, pamphlets, or other material in a guest or work area, or from
soliciting hotel guests at anytime for any purpose.
WE WILL within 14 days of the Board’s Order inform you in writing as to the manner in which
we have revised, rescinded, expunged, or modified those rules in our employee handbook, which
were found to be unlawful, to now comply with Federal Labor Law and your rights under the
National Labor Relations Act.
REMINGTON LODGING & HOSPITALITY, LLC, D/B/A
THE SHERATON ANCHORAGE
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Room 2948, Seattle, WA 98174-1078
(206) 220-6300, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (206) 220-6284.