Aqua-Aston Hospitality, LLC, d/b/a Aston Waikiki Beach Hotel and Hotel Renew

National Labor Relations Board - Administrative Judge Opinions

May 31, 2016

20-CA-154749 (N.L.R.B. May. 31, 2016)

JD(SF)-24-16
Honolulu, HI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AQUA-ASTON HOSPITALITY, LLC
d/b/a ASTON WAIKIKI BEACH Cases 20-CA-154749
HOTEL AND HOTEL RENEW, 20-CA-157769
Respondent, 20-CA-160516
20-CA-160517
and
UNITE HERE! LOCAL 5
Charging Party.
ERRATA
On May 31, 2016, I issued my decision in the case referenced above (the Decision).
On June 10, 2016, the General Counsel filed an unopposed letter-motion requesting that
paragraph 3(b) of the Decision's Conclusions of Law be modified to conform to paragraph 1(b)
of the Decision's Order by replacing paragraph 3(b) of the Conclusions of Law with a paragraph
that reads:
(b) ordering employees to cease engaging in union and/or protected activity; and
In addition, the General Counsel, by its letter-motion, requested that the spelling of an
individual's name on page 16, line 16 of the Decision be corrected to reflect the name, "Jonathan
Ching."
On June 13, 2016, Respondent Aqua-Aston Hospitality, LLC filed a letter-motion
requesting the spelling of an additional individual's name on page 4, line 41 of the Decision be
corrected to reflect the name, "Santos Ragunj an."
I find that the parties' letter motions request non-substantive errata and that good cause
exists for granting both letter-motions. I therefore order modification of my Decision consistent
with the terms contained in the parties' letter-motions as referenced above.
Dated: Washington, D.C. June 17, 2016
Mara-Louise Anzalone
Administrative Law Judge
JD(SF)-24-16
Honolulu, HI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AQUA-ASTON HOSPITALITY, LLC
d/b/a ASTON WAIKIKI BEACH
HOTEL and HOTEL RENEW,
Respondent,
and
UNITE HERE! LOCAL 5
Charging Party.
Cases 20-CA-154749
20-CA-157769
20-CA-160516
20-CA-160517
Scott E. Hovey, Jr. and Jeff F. Beerman, Esqs., for the General Counsel.
Robert S. Katz and Christine K David, Esqs.
(Torkildson Katz Moore Hetherington & Harris) for the Respondent.
Jennifer ynn, Esq. for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case on February 2
through February 5, 2016, in Honolulu, Hawaii. This case was tried following the issuance of an
Order Consolidating Cases, Consolidated Complaint and Notice of Hearing (the Complaint) by
the Regional Director for Region 20 of the National Labor Relations Board (the Board) on
October 28, 2015. The Complaint was based on a number of original and amended unfair labor
practice charges, as captioned above, filed by UNITE HERE! Local 5 (Local 5, the Union or
Charging Party). The General Counsel alleges that Respondent Aqua-Aston Hospitality, LLC
d/b/a Aston Waikiki Beach Hotel and Hotel Renew (Respondent) violated Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et. seq. (the Act). The
Respondent filed a timely answer to the Complaint denying the commission of the alleged unfair
labor practices.
JD(SF)-24-16
At trial, all parties were afforded the right to call, examine, and cross-examine witnesses,
to present any relevant documentary evidence, to argue their respective legal positions orally,
and to file post-hearing briefs.' Post-hearing briefs were filed by Respondent and the General
5 Counsel, and each of these briefs has been carefully considered.2 Accordingly, based upon the
entire record herein, including the post-hearing briefs and my observation of the credibility of the
witnesses, I make the following
FINDINGS OF FACT
10
I. JURISDICTION
The complaint alleges and the evidence establishes that Respondent, a limited liability
company, is engaged in the business of operating hotels, with a place of business in Honolulu,
15 Hawaii, where it operates and manages the Aston Waikiki Beach Hotel and Hotel Renew. The
evidence establishes, the parties admit, and I find that, in conducting its business operations,
Respondent derived gross revenues in excess of $500,000, and also purchased and received at its
Honolulu facility goods valued in excess of $5,000 directly from points located outside the State
of Hawaii. It is alleged, Respondent admits, and I find that Respondent is an employer engaged
20 in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and further that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the National
Labor Relations Board (the Board) has jurisdiction of this case, pursuant to Section 10(a) of the
25 Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Operations and the Union Organizing Campaign
30
Respondent manages and operates two adjacent hotels — the Aston Waikiki Beach Hotel
and Hotel Renew — in Waikiki, a popular tourist area in Honolulu. Respondent operates the
properties as a single entity (the Hotel). Respondent's Executive Vice President of Operations
Gary Ettinger (Ettinger) has overall responsibility for operations; the Hotel is managed by
35 General Manager Mark DeMello (DeMello); reporting to DeMello is Rooms Division Manager
Janine Webster (Webster). Until her retirement in October 2015, Valina Haines (Haines) served
as Respondent's Senior Vice President of Human Resources.
It is undisputed that, beginning in February 2015,3 Charging Party Local 5 began an
40 organizing campaign at the Hotel, which involved numerous Union-sponsored rallies being held
1 Abbreviations used in this decision are as follows: "Tr." for transcript; "GC Exh. " for General
Counsel's Exhibit; "R. Exh. "for Respondent's Exhibit; "GC Br. at "for the General Counsel's post-
hearing brief and "R. Br. at "for Respondent's post-hearing brief
2 On February 29, 2016, I granted counsel for the General Counsel's unopposed motion to correct the
transcript, which was filed the day prior. The record is therefore amended to reflect the proposed changes
set forth in that motion.
All dates are in 2015, unless otherwise indicated.
2
JD(SF)-24-16
outside the two, adjacent Hotel properties. The allegations in this case concern Respondent's
reaction to this campaign.
B. The Written Warnings
5
The General Counsel alleges that, on June 30, Respondent disciplined Maintenance
Engineer Edgardo Guzman (Guzman) and Utility Housekeeper Santos "Sonny" Ragunjan
(Ragunjan) for engaging in union activity. The discriminatees were each issued a written
warning for their conduct in soliciting a third employee, Utility Housekeeper Dany Pajinag
10 (Pajinag), to sign a union authorization card and requesting him to have his picture taken for a
union flyer. Respondent maintains that it disciplined the discriminatees after making a good-
faith — and ultimately correct — determination that they had engaged in serious misconduct.
According to Respondent's witnesses, Pajinag complained that Guzman and Ragunjan had
repeatedly interfered with his work. Respondent contends that its subsequent investigation
15 disclosed that the two men had engaged in an ongoing campaign of harassment that had
distracted Pajinag from his work, and that Ragunjan had physically threatened Pajinag.
While it is undisputed that the June 30 written warnings resulted from Pajinag's
complaints, the testimony regarding the substance of these complaints, as well as Respondent's
20 response, varied widely both in substance and relative credibility.' For the reasons stated below,
I find that Respondent's managers and officials did not in fact hold an honest belief that Guzman
and Ragunjan had engaged in serious misconduct and therefore find that the written warnings
violated the Act.
25 1. Factual Background
a. Respondent's policies
Respondent's employee handbook sets forth various bases for discipline, including the
30 following:
(Rule #3) Interference with others in the performance of their jobs, horseplay, or
disorderly conduct while on working time on Company premises.
35 (Rule #8) Threatening, fighting or engaging in any act of physical aggression (as
well as any attempt or threat to engage in a fight or to provide a fight), either by
words or actions.
(R. Exh. 9 at 37-38) Respondent maintains a workplace violence policy whereby it pledges to
40 "promptly and thoroughly investigate all reports of threats of (or actual) violence "and
4 I have based my credibility resolutions on consideration of a witness' opportunity to be familiar with the
subjects covered by the testimony given; established or admitted facts; the impact of bias on the witness'
testimony; the quality of the witness' recollection; testimonial consistency; the presence or absence of
corroboration; the strength of rebuttal evidence, if any; the weight of the evidence; and witness demeanor
while testifying and the form of questions eliciting responses. Credibility findings need not be all-or-
nothing propositions, and it is common for a fact finder to credit some, but not all, of a witness'
testimony. Daikichi Sushi, 335 NLRB 622, 622 (2001).
3
JD(SF)-24-16
explicitly retains the right to "suspend employees, either with or without pay, pending
investigation." Id. at 50. Haines confirmed that Respondent takes workplace threats of physical
harm seriously.

5 b. Pajinag's complaints
According to Respondent's witnesses, Pajinag initially complained to his supervisor,
Executive Housekeeper Marissa Cacacho (Cacacho). She testified that, on May 22, he told her
that Ragunj an had approached him the day before while he was working and invited him to have
10 his picture taken and sign a union authorization card. According to Cacacho, Pajinag said that
Ragunj an had bothered him several times previously and was interfering with his work. She
further testified that, on June 9, Pajinag made similar complaints about Guzman, claiming that,
on June 5 and June 9, Guzman had solicited him to sign a union authorization card and to have
his picture taken and that he was having trouble concentrating on his job. Pajinag submitted
15 handwritten statements regarding the events of May 21, June 5 and June 9. In each statement, he
indicated that the incident he was reporting was not the first of its kind; Guzman, he wrote
"always bother[ed]" him and on May 21, Ragunj an asked him to sign a Union authorization card
"again." (GC Exh. 13, R. Exh. 13)
20 Pajinag's testimony regarding his May 22 and June 9 reports to Cacacho stood in stark
contrast to Cacacho's version. First, he adamantly denied that he told her that his work was
being interrupted or that he was unable to concentrate, due to being bothered or distracted by
either Ragunj an or Guzman. Asked if he had told Cacacho that there had been other, prior
incidents with Ragunj an, he initially stated unequivocally that he had not. After counsel pointed
25 out that his written complaint dated May 22 referenced Ragunjan bothering him "again," he
changed his story, stating, "I cannot remember what I told [Cacacho]." (Tr. 594) With respect
to Guzman, Pajinag initially could not recall whether he told Cacacho about any prior incidents,
and (referring to his written statement), merely stated, "[w]hatever is within there that's what I
told her." When reminded that his statement said Guzman "always bothers me," he suddenly
30 recalled, "I told [Cacacho] that Edgar [Guzman] has not just bothered me once or twice." Asked
for specifics as to what he told Cacacho, his memory failed again, and he stated, "I don't know.
I forgot already." (Id. at 598-600)
c. Respondent's investigation and the loading dock incident
35
Respondent's witnesses testified that, after each of Cacacho's meetings with Pajinag,
Cacacho reported his concerns to her superiors Webster and DeMello. According to
Respondent, Pajinag's June 9 complaint spurred it to investigate his complaints against Ragunj an
and Guzman. General Manager DeMello and Rooms Division Manager Webster took charge.
40 As Webster explained, the decision to investigate was based on their belief that Pajinag was
explicitly complaining that Guzman and Santos Ragunj an's conduct was "distracting him from
completing his assignments" and that this "harassment or interference" had occurred numerous
times. (Tr. 805, 811)
4
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(i) Guzman's June 10 interview
On June 10, Webster and DeMello interviewed Guzman for approximately 15 minutes.
The testimony regarding this meeting was relatively consistent. DeMello asked Guzman if he
5 had ever asked someone to take a picture for any non-work related purposes during work hours
and work time, and Guzman denied doing so.5 Guzman repeatedly asked who had complained
about him, but DeMello responded that such information was confidential. According to
Webster, DeMello then told Guzman, "you are not allowed to do non-work related things on
company time during work time while employees are on property." (Tr. 815)
10
(ii) Pajinag's June 15 interview
Five days later, Webster and DeMello again interviewed Pajinag; according to
Respondent, this interview was precipitated by a new complaint filed by Pajinag that very day.'
15 Cacacho testified that Pajinag had approached her "very upset" and "shaking" and reported that,
on the prior Saturday, Ragunjan had threatened him in the Ilocano language while they were on
the loading dock. (Tr. 568-69) According to Cacacho, the words Ragunjan used literally
translated into a warning to "watch your back all the time," but in Ilocano, is equivalent to a
death threat. Cacacho typed up a written statement reciting Ragunj an's threat (in English) and
20 provided it to Webster and DeMello, telling them that the statement was "more threatening" in
Ilocano and Pajinag was afraid to leave his house. (Id. at 445, 571; R. Exh. 14)7
Webster and DeMello testified that Pajinag was highly distressed during his interview,
and, besides reporting Ragunjan's alleged threat, also claimed to be "scared and intimidated" by
25 one of his interactions with Guzman, which had taken place in a dimly lit laundry room.'
According to DeMello, Pajinag also indicated that there had been additional incidents between
him and the two men, but was so distraught and upset that he was unable to give details
regarding those incidents. Once again, Pajinag's version of events differed significantly.9
According to him, he simply reported what Ragunjan had said to him on May 21 and what
30 Guzman had said to him on June 5 and June 9 (in his words, "[t]hat's all that I told them"), but
did not indicate that there had been additional incidents he was too upset to recall. (Tr. 608)
Moreover, his version of the interview did not include any specific mention of the alleged "death
threat" Respondent claimed precipitated the meeting.' Indeed, in his testimony Pajinag
5 The testimony is unclear as to whether, at this point, Guzman acknowledged his wrongdoing, referring
to a workplace poster regarding non-solicitation. Regardless, there being evidence that Respondent relied
on any such policy in disciplining Guzman, whether he made such an "admission" is irrelevant.
6 See Tr. 812 ("we actually reached out to him immediately after we were notified on June 15th that a few
days prior to that [] Ragunjan had approached him on the loading dock and threatened him").
7 Cacacho's typewritten statement refers to the event occurring on June 12, not June 13.
There is no evidence that Pajinag had previously reported being physically afraid of Guzman.
9 Overall, Pajinag's demeanor while testifying about the meeting was relatively blase, considering that,
according to Respondent, he was describing reporting a then-recent death threat.
1° What he told Webster and DeMello, Pajinag testified, was the information contained within his two
handwritten statements (GC Exh. 13, R. Exh. 13), not Cacacho's typewritten notes.
5
JD(SF)-24-16
indicated that the "watch your back" threat itself had occurred prior to his first complaint to
Cacacho on March 22."
While Pajinag's version of this interview is at odds with that of Webster and DeMello in

5 several key aspects, it is undisputed that he did identify a potential employee-witness to at least
one of the incidents he had reported, but expressed doubt that this individual had actually
overheard the conversation in question.' Respondent never interviewed the housekeeper(s) in
question. There is no credible evidence that, following this interview, Respondent took any
interim steps to prevent a further confrontation between Pajinag and either Ragunj an or
10 Guzman.'
(iii) The June 19 interviews
On June 19, DeMello and Webster briefly re-interviewed Guzman and interviewed
15 Ragunjan for the first time regarding Pajinag's complaints. The facts of Guzman's interview are
not significantly disputed. Guzman continued to ask for the identity of the person who had
complained about him, but was again refused this information. Asked to provide a statement
about the incident he maintained had never happened, Guzman wrote a summary of what
Webster and DeMello had asked him during the prior interview and stated that he had no change
20 in his response to their accusation. (R. Exh. 11)
The same day, Ragunj an was interviewed for the first time regarding his alleged
misconduct." DeMello testified that he first asked Ragunj an whether he had ever asked anyone
to take a picture for a non-work related purpose during work time, which Ragunjan denied.
25 Then, according to DeMello, he directly asked Ragunjan whether he had ever threatened anyone
on the loading dock, and Ragunj an again said no, this time avoiding eye contact, appearing
nervous and almost laughing. (Tr. 488) Webster's recollection of the interview was similar,
except for one critical aspect: she made no mention of confronting Ragunj an with the alleged
threat but instead testified he was simply asked was whether he had ever requested that someone
30 take a picture for a non-work related purpose. (Id. at 812) I credit Webster's account of the
exchange; it came across less forced and rehearsed than DeMello's testimony and also squares
more accurately with the record as a whole.
Pajinag clearly testified, after being asked whether there was anything else he recalled about the May
21 incident, that there was "one thing before" and then described the "watch your back" incident. When
Respondent's counsel asked Pajinag to confirm whether it had happened before "or after" the May 21
incident, he stated "after" and but then claimed he could not recall when, stating, "I need to look at the
paper." (Tr. 590) I credit his original, uncoached testimony that the incident he described happened
before May 22, not on the Saturday prior to June 15, as Respondent contends.
12 According to DeMello, Pajinag identified a room attendant who was present in a guest room during one
of the incidents he reported between him and Guzman in early June; Webster recalled that he reported a
room attendant-witness to Pajinag's claimed May 21 incident with Ragunjan.
13 DeMello testified that he and Webster instructed Cacacho at some point to "try to monitor [Pajinag]
when he was working" and "keep a sort of a close eye on the whole situation." (Tr. 467) I do not credit
this testimony, which went uncorroborated by either Webster or Cacacho, and had a self-serving ring to it.
14 Ragunjan did not testify.
6
JD(SF)-24-16
d. Respondent disciplines Guzman and Ragunjan on June 30
Respondent's witnesses testified that, at some point between June 19 and June 30,
DeMello and Webster provided the results of their investigation to Haines, along with a draft
5 corrective action for each man and their recommendation for discipline. They informed Haines
that they believed that Guzman and Ragunjan, based on their demeanor when interviewed, were
not being truthful and that Ragunj an in particular did not seem to want to discuss the accusations
against him.
10 Haines concluded that Guzman and Ragunjan had repeatedly interfered with Pajinag
being able to do his work, in violation of Respondent's non-interference rule (Rule #3, supra),
and that Ragunj an had additionally violated Respondent's anti-threatening rule (Rule #8, supra)
by warning Pajinag "about being careful and watching his back." (Tr. 712)'5 She decided that
both Guzman and Ragunj an should receive a written warning for their conduce' On June 30,
15 management presented both Guzman and Ragunjan with their corrective action notices, which
they refused to sign. The warning issued to Guzman makes reference to the alleged incidents on
June 5 and June 9; Ragunj an's warning refers to the alleged incident on May 21 and the loading
dock threat, which Respondent identified as having occurred on June 11. (GC Exh. 10, 11)
20 2. Applicable Legal Principles
a. The Burnup & Sims standard
Where the conduct for which an employee is disciplined is intertwined with the
25 employee's otherwise protected activity, the employer's motivation is not at issue, and the proper
analytical framework is that found in NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Under this
framework, an employer may lawfully discipline an employee for engaging in misconduct in the
course of his otherwise protected activity, but only if it had a good-faith and correct belief that
such misconduct occurred. Burnup & Sims, supra at 23-24; see also La-Z-Boy Midwest, 340
30 NLRB 80 (2003).
Under the Burnup & Sims framework, the initial burden is on the General Counsel to
establish that the employee was disciplined or discharged for conduct occurring during the
course of protected activity. The burden then shifts to the employer to show that it held an
35 honest belief that the employee engaged in serious misconduct. Burnup & Sims, supra at 23.
The test for "serious misconduct" is whether the employee's activity is such that, under the
circumstances existing, it may reasonably tend to coerce or intimidate coworkers. Clear Pine
Mouldings, 268 NLRB 1044 (1984); see also Fresh and Easy Neighborhood Market, Inc., 361
NLRB No. 12, slip op. at 5 (2014) (employee's Section 7 activity does not lose protection merely
40 because it makes fellow employee uncomfortable) (citing Frazier Industrial Co., 328 NLRB
717, 719 (1999), enfd. 213 F.3d 750 (D.C. Cir. 2000)); Consolidated Diesel Co., 332 NLRB
15 It is unclear from the record whether Haines was informed (per DeMello's version of events) that
Ragunjan had been confronted with and denied making the loading dock threat to Pajinag.
16 Haines, whose typical policy was to review cases of similar transgressions to ensure fairness in meting
out discipline in a particular case, could not recall whether she did so with respect to Guzman or
Ragunjan's written warning.
7
JD(SF)-24-16
1019, 1020 (2000) ("Megitimate managerial concerns to prevent harassment do not justify
discipline on the basis of the subjective reactions of others to [employees'] protected activity").
Once the employer establishes that it held an honest belief in the employee's serious

5 misconduct, the burden shifts to the General Counsel to affirmatively show that the misconduct
did not in fact occur. Rubin Bros. Footwear, Inc., 99 NLRB 610, 611 (1952), enf denied on
other grounds 203 F.2d 486 (5th Cir. 1953); see also Akal Security, Inc., 354 NLRB 122, 124-25
(2009), reaff d 355 NLRB 584 (2010); Tracer Protection Service, 328 NLRB 734, fn. 2 (1999);
Desert Inn Country Club, 275 NLRB 790, 795 (1985). Thus, an employer who disciplines an
10 employee for misconduct within the course of otherwise protected activity will be found to have
violated the Act where the evidence discloses that: (a) it did not honestly believe the serious
conduct occurred; or (b) even if it did so believe, it was mistaken."
b. The June 30 written warnings violated Section 8(a)(3) and (1) of the Act
15
As a preliminary matter, I find that the existence or lack of unlawful animus is not
relevant in this matter, as the June 30 written warning issued to Guzman and Ragunj an were
admittedly motivated by their protected conduct, i.e., their effort to convince a third employee,
Pajinag, to support the Union and its organizing effort at the Hotel. See Burnup & Sims, supra:8
20 Next, I examine whether Respondent met its burden in establishing that, in issuing the discipline,
it held a good-faith belief that Guzman and Ragunjan had engaged in serious misconduct in their
interactions with Pajinag. I find that Respondent failed to meet this burden.
Frankly, much of the testimony offered by Respondent's witnesses regarding the events
25 leading to the June 30 written warnings appeared rehearsed. Cacacho, Pajinag's direct
supervisor, had trouble remembering which employee Pajinag had complained about and when,
and both DeMello and Webster struggled to recite the convoluted questions they claim to have
asked when interviewing the discriminatees. Cacacho, Webster and DeMello each parsed their
answers in a manner that did not suggest forthrightness. Ultimately, Respondent's management
30 witnesses could not agree on a consistent version of the facts and contradicted each other on
significant details, such as whether Ragunjan had ever been confronted with the alleged death
threat.
Regarding the complaints, I credit Pajinag's more unvarnished version of events, which
35 departed from Respondent's script in key respects. First, I credit Pajinag's testimony that his
specific complaints regarding Guzman were based on two conversations with Guzman four days
apart. Likewise, he reported — at most — a single incident with Ragunjan on May 21 and an
17 Holding an employer liable for a good-faith, but mistaken, belief in employee misconduct in the context
of protected activity is necessary, "otherwise the protected activity would lose some of its immunity,
since the example of employees who are discharged on false charges would or might have a deterrent
effect on other employees A protected activity acquires a precarious status if innocent employees can
be discharged while engaging in it, even though the employer acts in good faith." Burnzip & Sims, supra
at 23.
18 Respondent's suggestion that this conduct was unprotected because it may have violated a lawful no-
solicitation rule is unavailing, in that there is no evidence Respondent relied on any such rule in issuing
the written warnings. (See R. Br. at 43, fn. 6, citing cases)
8
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allegedly threatening comment by Ragunjan occurring some time before that.' In this regard, I
find this case distinguishable from BJ's Wholesale Club, cited by Respondent. See 318 NLRB
684, 685 (1995). In that case, the Board upheld a discipline based, in part, on a coworker's
report that the discriminatee had solicited her to sign a union authorization card three times in a

5 single day and that she was "too busy" to be bothered. Moreover, while Respondent's
management witnesses stressed, in lockstep fashion, that they were chiefly concerned about the
fact that Pajinag had complained that Guzman and Ragunjan were interfering with him getting
his work done, this is precisely what Pajinag denied complaining about; he clearly testified that
he just wanted his coworkers to stop "bothering" him about the Union. See Chartwells,
10 Compass Group, USA, 342 NLRB 1155, 1157 (2004) (employer may not lawfully discipline an
employee for making pro-union (or antiunion) statements that merely cause another employee to
feel uncomfortable) (citing Consolidated Diesel Co., 332 NLRB at 1020 (2000)). This falls far
short of the Board's standard for "serious misconduct" in the course of protected activity.
15 Respondent's investigation into Pajinag's complaints further suggests that it did not
honestly believe that either Guzman or Ragunjan's solicitations for a photograph and/or union
authorization card had actually interrupted Pajinag's work or otherwise lost the Act's protection.
Instead of responding to Pajinag's complaints with interim action, Respondent's managers
focused on amassing documentation of the alleged misconduct. Respondent's failure to
20 interview an identified witness (based solely on Pajinag's speculation about that individual's
hearing range) and refusal to inform Ragunjan or Guzman (despite the latter's repeated requests)
of the identity of their accuser reflects prejudgment of the situation inconsistent with a good-faith
investigation. Arkema, Inc., 357 NLRB 1248, 1248-49 (2011) (failure to allow employee to
refute allegation or identify accuser indicates lack of honest belief in misconduct); Trailmobile
25 Trailer, LLC, 343 NLRB 95, 106 (2004) (failure to conduct meaningful investigation, including
avoiding ignoring potential evidence, suggests that employer "seized upon" complaint to rid
itself of union officers).
Likewise, Respondent's languid and tepid response to Pajinag's complaint that Ragunjan
30 had recently physically threatened him was not consistent with the actions of a concerned
employer seeking to ascertain the truth of the matter, or to otherwise respond to such a serious
allegation. While Cacacho testified that Ragunjan's comment was tantamount to a death threat,
and DeMello described Pajinag as "distraught" and "scared," Respondent did not contact law
enforcement or take any other action to protect Pajinag, such as suspending Ragunjan pursuant to
35 its workplace violence policy. (Tr. 439-40) Instead, DeMello and Webster inexplicably waited
four days to interview Ragunjan and then failed to confront him about the loading dock incident.
See Remington Lodging & Hospitality, LLC (Sheraton Anchorage), 363 NLRB No. 6, 16 (2015)
(failure to elicit accused employee's version of events is inconsistent with good-faith
investigation) (citing K & M Electronics, 283 NLRB 279, 291 fn. 45 (1987)). Finally, while
40 finding Ragunjan guilty of "threatening" pursuant to its policies, Respondent meted out exactly
the same level of discipline it issued Guzman, who was found guilty of no such infraction.
19 As noted, I am convinced, based on the testimony and demeanor of the witnesses, that Pajinag never
reported that he had been seriously threatened the Saturday prior to June 15, as Respondent claims.
While I do not reject Pajinag's testimony that he may, in fact, at some point in time, have felt threatened
by Ragunjan, it appears to me that any threat reported by Pajinag was based on long-passed events
repackaged by Cacacho to appear more imminent, allowing Respondent to seize upon it as a reason for
discipline.
9
1
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Accordingly, I find that Respondent failed to establish that it disciplined Guzman and
Ragunj an based on an honestly held belief that they had engaged in serious misconduct in the
course of protected activity; as such, I find that their written warnings violated the Act.
5
C. The Employee Meetings
The General Counsel alleges that, during meetings with Hotel employees in May 2015,
Respondent's Executive Vice President of Operations Gary Ettinger made various statements in
10 violation of Section 8(a)(1) of the Act. Specifically, according to the General Counsel, Ettinger:
(a) directed employees to stop participating in union-organized rallies; (b) directed employees to
stop visiting the homes of coworkers to engage in union and/or other protected concerted
activities; (c) impliedly threatened employees with the loss of their jobs for engaging in union
and/or protected concerted activities by telling them that they were lucky to have jobs; and
15 (d) told employees to apologize to Respondent for engaging in union and/or protected concerted
activities.
While Respondent concedes that Ettinger held the meetings in question, it sharply
disputes the version of his comments testified to by the General Counsel's witnesses and further
suggests that his remarks must be judged by a "reasonable employee" standard that assumes an
20 English-speaking employee who understood his comments fully.
As set forth below, I find that Respondent, by Ettinger, violated the Act as alleged.
1. Factual Background
Beginning in February 2015, pro-union Hotel employees began holding early morning
25 rallies outside the Hotel during which they chanted and banged pots and pans. Within a week of
the first such rally, Respondent began holding meetings with employees to address the union
campaign. The General Counsel's allegations concern statements made by Ettinger at two such
meetings held on May 19, 2015 in the Aston Waikiki's Lokahi room.2° Three current employees
testified for the General Counsel regarding the meetings: inspector Faustino Fabro (Fabro),
30 breakfast attendant Cecile Daniels (Daniels) and guest service agent Lotuseini Kava (Kava).
Respondent presented the testimony of all of the management attendees, as well as Ettinger
himself A single employee, housekeeper Alona Afable (Afable), also testified for Respondent.21
The basic background facts regarding the meetings are undisputed. Ettinger addressed
35 30-35 Hotel employees seated in a circle around him Webster, Haines and DeMello were
seated among the employees. Ettinger spoke from prepared bullet points22 and did not solicit
questions from the attendees. Although the majority of employees attending these meetings did
20 Respondent's management witnesses, who each attended both meetings, testified consistently that
Ettinger's presentation was similar each time.
21 Afable testified that attendance at the meetings was mandatoty.
22 Under Fed. R. Evid. 611(c) examination, Ettinger adopted his typed bullet points as an accurate
reflection of what he said; his counsel's subsequent attempt to have him backtrack on this point was
unconvincing. I find that, as he originally testified, he in fact addressed each of the bullet points. (Tr.
657; GC Exh. 16)
10
JD(SF)-24-16
not speak English as a primary language, Ettinger spoke in English without the assistance of a
translator. There is no evidence that any employee spoke during the meeting.
Ettinger began by expressing concern about how long the Union's organizing campaign

5 had gone on. He said that guests were complaining about noise from the rallies, and that, going
into the Hotel's busy season, he was concerned that this conduct would drive away business and
reduce work opportunities. In his words, Ettinger said that the noisy rallies were "disturbing
guests," creating an environment not "conducive" to guests enjoying their vacations and "having
a deleterious impact on business." Next he said that certain employees had complained about
10 being bothered, at home and at work, by pro-Union employees. This conduct, he said, was
causing "acrimony" and "discomfort" among the employees. (Tr. 640-41, 644) 23 He then
instructed the employees that they had the right to decide who entered their homes and that, if
union supporters refused to leave when asked, the visited employee could contact the police.
15 General Counsel's witnesses, none of whom speak English as a primary language,
testified, to the best of their ability, as to what Ettinger said in English. Not surprisingly, their
recollection of his remarks did not include words such as "deleterious" and "acrimony." Instead,
they testified that he affirmatively ordered the employees to cease engaging in certain conduct.
Fabro and Daniels testified that Ettinger told the employees to stop banging pots and pans and to
20 stop bothering their coworkers at home. Kava testified that Ettinger said the rallies needed to
end, because they were waking people up at the Hotel. General Counsel's witnesses recalled a
specific aspect of Ettinger's body language during the meeting: he was holding a plastic water
bottle and "banging" it back and forth between his hands. Kava also testified that he appeared
upset and spoke loudly.'
25
In markedly more plain-spoken language, Ettinger next talked about employees' negative
experiences at unionized workplaces in the local area. He then told a story about his own mother
being denied his father's union-funded pension benefits after his death, promising the assembled
employees that, even if a union came in, they could rest assured that they would still be entitled
30 to their 401(k) account balances. Referring to a pro-union Hotel employee who had recently
been interviewed on local radio regarding his prior job at a unionized hotel, according to
Ettinger's notes, he then asked the employees, if that employee's experience "was so great," why
did he leave to work at the Hotel, a nonunion property? "Why," he asked them, "are there so
many jobs posted for union properties? Why are union hotels struggling to keep people[?]" (GC
35 Exh. 16)
23 DeMello confirmed that Ettinger used terminology such as "discord," "in-fighting" and "dissention"
when describing the atmosphere the Union had created. (Tr. 746; R. Exh. 17)
24 Ettinger's manner during the meeting was described by DeMello as "intense." (Tr. 464)
11
JD(SF)-24-16
In his closing remarks, Ettinger returned to the subject of the rallies, asking rhetorically
why the Union had not called for a vote yet. Then he told the employees it was because the
Union wanted to disrupt the Hotel's business. Ettinger then said that he was angry with the
situation because it was "not necessary," that the Hotel was ready for an election and that the

5 Union "should call for a vote, not do things via pots, pans and harassment." (R. Exh. 18, 19)25
The General Counsel's witnesses testified that the meeting ended on a much heavier note. All
three witnesses testified that Ettinger said — in simple English — they were lucky to have jobs.
Finally, according to Fabro and Daniels, he then said they could stop by his office and apologize
to him. These remarks — also delivered in easily understood English — were universally denied
10 by Respondent's witnesses.
2. Analysis
a. Credibility
15
I credit the General Counsel's witnesses with respect to Ettinger's statements. I found
Fabro to be especially credible, in that he listened carefully to questions and maintained the same
demeanor regardless of who was examining him. Daniels, who mainly testified through a
Tagalog interpreter and appeared somewhat nervous, was nonetheless certain of what she
20 understood Ettinger to have said, which she recounted in English. While Kava's recollection
was not as complete as the two others, her demeanor was composed and steady, and she struck
me as committed to speaking the truth?' I attribute enhanced credibility to Fabro, Daniels and
Kava, due to their status as current employees. Flexsteel Industries, 316 NLRB 745 (1995) ("
the testimony of current employees which contradicts statements of their supervisors is likely to
25 be particularly reliable because these witnesses are testifying adversely to their pecuniary
interests") (citations omitted), affd. mem. 83 F.3d 419 (5th Cir. 1996).
By contrast, I found Ettinger's testimony less than fully credible. His dismissive denials,
sometimes accompanied by laughter, struck me as a sign of nervousness and discomfort,
30 particularly regarding the specific statements the General Counsel's witnesses attributed to him.
Respondent's remaining witnesses gave guarded testimony that presented as less than forthright.
Both DeMello and Afable appeared nervous while testifying, as if unsure which of Ettinger's
remarks might damage Respondent's case. Haines, who was present for Ettinger's own
testimony, nonetheless appeared uncomfortable testifying about the meetings; she was only to
35 recall vague portions of the meeting and then simply stated denials in response to leading
questions?' I found Webster to be slightly more credible; I note, however, that she was present
25 I credit Webster's meeting notes regarding these remarks; Ettinger related a gentler version, in which he
merely said that "the conduct of the people that were outside of the hotel banging pots and pans were
creating an environment that wasn't suitable for, you know, the vacation experience." (Ti'. 648)
26 Respondent's spurious accusation that Kava committed "perjury" when she denied that her memory
had been improperly refreshed at hearing is not well taken; it is quite common for a witness whose
recollection is refreshed on one portion of a conversation to then recall subsequent portions.
27 Especially concerning to me were Haines' typewritten notes of the meeting (R. Exh. 16), which
substantially echo Ettinger's testimony and which she claimed to have typed based on her
contemporaneous handwritten notes. When the handwritten notes were produced, they consisted of two
short notations that could not have possibly served as the basis for the typewritten notes. (Tr. 781-83)
12
JD(SF)-24-16
during the entire hearing and, as the final witness, had heard all of the other testimony regarding
the meetings, which detracts from the reliability of her own testimony.
b. Ettinger's comments violated the Act
5
Section 8(a)(1) of the Act provides that it is an unfair labor practice to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7, which protects
the right of employees to engage in "concerted activity" for, inter alia, their "mutual aid or
protection." It is well settled that the Board assesses the objective tendency of a statement to
10 interfere with the free exercise of employee rights rather than considering either the employer's
motive or employees' actual subjective reactions regarding the statement. Miller Electric Pump
and Plumbing, 334 NLRB 824, 825 (2001); Joy Recovery Technology Corp., 320 NLRB 356,
365 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998). The issue, then, is how a "reasonable
employee" would interpret the statement considering all surrounding circumstances. The
15 Roomstore, 357 NLRB 1690, 1690, fn. 3(2011).
"The test of whether a statement is unlawful is whether the words could reasonably be
construed as coercive, whether or not that is the only reasonable construction." Double D
Construction Group, 339 NLRB 303, 303 (2003) (citation omitted). While certain employer
20 statements, taken alone, may be considered noncoercive, they will violate the Act where they
"take on the character and quality of coercive comments which accompany them. " Oak Mfg.
Co., 141 NLRB 1323, 1325 (1963). An employer will be held accountable for misleading or
confusing statements that would reasonably tend to chill an employee's protected activity; as
Chief Justice Warren stated in the Gissel case:
25
[a]n employer, who has control over [the employment] relationship
and therefore knows it best, cannot be heard to complain that he is
without an adequate guide for his behavior. He can easily make
his views known without engaging in "brinkmanship" when it
30 becomes all too easy to "overstep and tumble [over] the brink."
NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969) (citing Wausau Steel Corp. v. NLRB, 377
F.2d 369, 372 (7th Cir. 1967)).
35 The identity of the speaker and his position of relative power in the workplace are also
given consideration; when an employer uses a high-level manager to voice its antiunion message,
that message takes on an especially coercive quality and is unlikely to be forgotten. See Electro-
Voice, 320 NLRB 1094, 1096 (1996); America's Best Quality Coatings Corp., 313 NLRB 470,
472 (1993), enfd. 44 F.3d 516 (7th Cir. 1995), cert. denied, 515 U.S. 1158 (1995); see also
40 Aldworth Co., 338 NLRB 137, 149 (2002) (captive audience meetings convey a significant
impact when conducted by high-level officials). A high ranking employer official who peppers
his remarks with provocative phrases "skillfully chosen to obscure their definitive meaning or to
create a double entendre" may violate the Act where those remarks effectively instill fear of
economic jeopardy in the minds of the employees listening. Brandenburg Tel. Co., 164 NLRB
45 825, 831-32 (1967) (citing International Ass. of Machinists (Serrick Corp) v. NLRB, 311 U.S.
72, 80 (1940) ("interference must be determined by careful scrutiny of all factors, often subtle,
which restrain the employees' choice. ")).
13
JD(SF)-24-16
In assessing the lawfulness of communications in a multilingual workplace, language
barriers cannot be ignored. The Board has noted that "some imprecision inevitably arises" in
such settings, particularly where the employer's communication "walk[s] the fine line between

5 lawful descriptions and unlawful threats." Labriola Baking, 361 NLRB No. 41, 4 (2014).
However, the Board has specifically rejected the argument that employers should be granted
"greater latitude in addressing non-English speaking workers," instead finding that such
statements "deserve careful scrutiny." Id. Thus, an employer will be held responsible for
misunderstandings that result from a misunderstood English language statement, even where the
10 coercion takes the form of a mistranslation it unwittingly sanctioned. Id. at 2; see also Cream of
the Crop, 300 NLRB 914, 917 (1990) (citations omitted). Likewise, where the employer fails to
take reasonable steps to ensure that its antiunion message is accurately understood by its
multilingual workforce, it engages in the very "brinksmanship" Justice Warren cautioned
against, and should be held accountable for the results.
15
Evaluated under these standards, I find that Ettinger's comments violated the Act. In a
speech peppered with outmoded, bookish phraseology, such as "deleterious impact" and
"acrimony," critical portions of Ettinger's remarks were virtually ensured to be understood in
only the most basic terms by those in attendance.' According to the General Counsel's
20 witnesses, those basic terms were: (a) stop the rallies or you will lose work, and (b) stop
bothering your coworkers about the Union or the police will be involved.29 Lest they
misunderstand the consequences of failing to 'fall in line,' Ettinger closed his remarks in far
more understandable English, including telling them they were "lucky to have jobs" and were
welcome to "apologize" to him The coercive nature of his remarks was exacerbated by
25 Ettinger's status at the Hotel, as well as by his body language and "intense" demeanor.
Based on the above, I find that a reasonable employee attending Ettinger's meetings,
while perhaps confused by certain of his phrases, would have reasonably understood that the
Hotel's highest level of management was fed up and angry with their union organizing and noisy
30 protests and was telling them to stop. See Lancaster Fairfield Comm. Hosp., 311 NLRB 401,
401 (1993) (directing employee to "discontinue this disruptive behavior immediately," in
reference to employee complaining about working conditions, constitutes an unlawful threat of
future reprisal for engaging in such conduct); American Tool & Engineering Co., 257 NLRB
608, 608 (1981) (ordering employees to stop wearing union insignia and distributing union
35 literature violates Section 8(a)(1)). I also find that a reasonable employee ordered by top
management to cease pro-union conduct would reasonably feel his job security threatened when
then informed that he was lucky to have a job, especially considering that Ettinger had earlier
suggested that local union hotels were losing money and not able to keep people employed.30
28 As Ettinger apparently considered the subtlety of his message to require the use of such ornate
language, surely it would have made sense to have his comments translated or at least confirmed that
those gathered had understood him by taking questions after his presentation.
29 Frankly, mentally "editing" out Ettinger's antiquated verbiage from his own admitted account of the
meeting leaves me with very much the same impression.
30 Put in this context, Ettinger's remarks — which did not refer to the assembled employees' skill level or
the overall job market — effectively linked the employees' ability to remain "lucky" (i.e., employed) with
their compliance with his directive that they cease their protected conduct. Cf. Children's Services Intl,
347 NLRB 67 (2006).
14
JD(SF)-24-16
Finally, I find that Ettinger's invitation to employees to "apologize" to him constitutes an
unlawful solicitation that they disclose their Union sentiments. Having been informed that some
employees had already complained to management about the Union, a reasonable employee

5 would feel pressured by Ettinger's invitation to disclose her union sentiments, one way or the
other. The Board has found such solicitations to violate the Act. See, e.g., Barton Nelson, Inc.,
318 NLRB 712, 712 (1995) (asking employees to make an "observable choice" regarding their
union sentiments violates the Act); Capitol Records, Inc., 232 NLRB 228, 228 (1977) (soliciting
employees to disclose their sentiments regarding the union violates the Act).
10
D. The Handbilling Incident
The General Counsel alleges that, on August 11, Respondent, by Security Guard Andrew
Smith, unlawfully threatened employees with discipline for distributing union literature near the
15 lower lobby of the Hotel.
1. Factual Background
a. The layout of the lower lobby
20
The lower lobby acts a main entrance for the Hotel, but is not where guests regularly
check in.31 The lobby is accessed via a porte-cochere (i.e., covered driveway), which is not
uncommon among hotel properties. What does make the lower lobby somewhat distinctive is its
open-air design; it lacks a structural façade fronting the driveway. Instead, an individual
25 entering the lobby from the driveway would cross over a red-painted curb and walk onto a tiled
area containing several red-painted pillars accented by potted plants. (See GC Exh. 5, R. Exh. 3)
Approximately two feet beyond those pillars, the flooring converts to wood, and tables and
chairs are arranged, along with televisions, in a lounge seating area. I will refer to the tiled area
containing the pillars abutting the driveway as the lobby's "entrance area."
30
Despite its open-air design, the lower lobby offers no overhead or beach views, but
instead looks over the covered Hotel driveway and the hotel across the street. The lobby is open
to the public as well as Hotel guests.' Other than the televisions, the Hotel does not provide
entertainment in the lower lobby. The lobby contains a convenience store, as well as two
35 restaurants, none of which are operated by the Hotel. Although guests may "take out" food from
these establishments and eat it in the lobby seating area, the Hotel itself does not serve food to
guests in the lower lobby. By contrast, Respondent's main, upper lobby area — where guests
regularly check in — contains a swimming pool and deck and a large restaurant run by the Hotel.
31 While large groups may check in at the lower lobby, this is relatively uncommon, and no such group
was present on August 11.
32 There was limited testimony from Hotel security guard Andrew Smith that only Hotel guests — not
members of the public — were permitted to actually sit in the lobby seating area. I found that his
testimony lacked foundation, in that he merely claimed to inform anyone he identified as a non-guest that
the seating was for Hotel guests only. (Tr. 115-16)
15
JD(SF)-24-16
As of August 11, Respondent also hosted "breakfast on the beach" events where it served food to
guests in its upper lobby.'
Certain Hotel employees perform work in the lower lobby, including the entrance area.

5 From a bell and valet stand situated far to one side of the entrance area, Hotel employees provide
concierge services and are dispatched to handle luggage and valet park vehicles. A "doorman"
or "greeter" is also assigned to this operation; this employee greets guests and directs them to the
Hotel's registration area on the floor above. A housekeeper lobby attendant is also assigned to
the lower lobby and regularly empties trash bins in the entrance area. There was some evidence
10 that maintenance employees sometimes work on repairs in the lower lobby, but are not regularly
assigned there. Security guards employed by a third-party contractor routinely patrol the lower
lobby.
b. The events of August 10
15
On August 10, Webster learned that Jonathan Ching (Ching), a Guest Service Agent at
the Hotel, was planning to pass out pro-Union fliers in the lower lobby the next day. Along with
DeMello and Front Services Manager Makana Kaanoi (Kaanoi), Webster met with Andrew
Smith (Smith), who leads the Hotel's outside-contracted security team. Webster and DeMello
20 instructed Smith to order Ching to leave the Hotel property and additionally warn him that he
would be "trespassed" if he refused to leave. "Trespassing" means barring an unwanted person
from the Hotel property for a year with the threat that, should they return within that year, they
would risk arrest. Witnesses agreed that, prior to August 10, no Hotel employee had ever been
"trespassed." Webster then instructed Smith that, should Ching fail to comply, he should in fact,
25 be "trespassed." (Tr. 50) I credit Smith's testimony regarding this meeting; his recollection was
concise, and his demeanor was businesslike and matter-of-fact.
The following day, shortly after 7 a.m., Ching and another Hotel employee, Lakai
Wolfgramm (Wolfgramm), each of whom were off duty, stationed themselves in the lobby's
30 entrance area, each in front of a red pillar, and prepared to hand out flyers on behalf of the
Union. Approximately three minutes later, Smith approached with another security guard and
Front Office Manager Adam Miyasato (Miyasato), who supervises Ching and Wolfgramm.
Smith told Ching he was being given a "verbal warning to stop passing out flyers in the lower
lobby" and "you're not allowed to pass out pamphlets on property." He then told Ching that, if
35 they refused to leave, they would be "trespassed." As Wolfgramm approached and joined the
conversation, Ching insisted that they had the right to remain, to which Smith responded, "it
doesn't matter. You guys can't be here. I'm going to ask you guys to leave." (Tr. 52-53, 106,
160)
40 Ching then addressed Miyasato, asking whether there was someone to direct him "other
than an outside contractor." Miyasato gestured towards Smith and stated, "he'll do." Smith
confirmed this, telling Ching, "I represent management and [] I speak on their behalf." Miyasato
33 Ettinger testified that this event was held in the upper lobby; later, DeMello testified that, due to a lack
of space, guests would "oftentimes" bring their breakfast meal down to the lower lobby and eat it in the
lobby seating area. Frankly, I found this portion of DeMello's testimony less than convincing; it was
apparent that he was quite focused on "selling" the open-air experience of the lower lobby.
16
JD(SF)-24-16
remained silent. Smith again told Ching he would "trespass" him unless he refused to stop
handbilling and left the property (which they did). (Id. at 72-74) Again, I credit Smith's version
of events, as corroborated by Ching and Wolfgramm. Miyasato did not testify.

5 2. Analysis
a. Ching and Wolfgramm's conduct on August 11
It is well settled that, absent special circumstances, the Act guarantees employees the
10 right to distribute union literature on their employer's premises during nonwork time in nonwork
areas. Republic Aviation Coq,. v. NLRB, 324 U.S. 793, 803-04 (1945). Here, there is no
contention (and no evidence) that either Ching or Wolfgramm made any effort to impede ingress
or egress of persons to or from the Hotel property, interfere with other employees performing
their jobs or engage in any other conduct that would justify Smith's intervention for the purpose
15 of maintaining security or discipline. Thus, Ching and Wolfgramm's attempt to handbill Hotel
customers in furtherance of the Union's organizing effort, assuming it was carried out in a
nonwork area, constituted protected activity.
b. Smith's agency status
20
The next issue is whether Smith acted as Respondent's agent. An employer may be held
liable for unfair labor practices committed by security guards acting in their official capacity.
Saint Johns Health Center, 357 NLRB 2078, 2096 (2011) (security guards acting under direct
authority from upper management violated Section 8(a)(1) by threatening to have employees
25 charged with trespassing for distributing pro-union literature) (citing Opryland Hotel, 323 NLRB
723 fn. 3 (1997); Bakersfield Mem. Hosp., 315 NLRB 596 (1994); Southern Maryland Hospital
Center, 293 NLRB 1209 (1989)). Here, the evidence establishes that DeMello and Webster
explicitly delegated to Smith the authority to warn Ching that his handbilling would be handled
as a trespass if he did not cease and leave the Hotel property. Poly-America, Inc., 328 NLRB
30 667, 667-68 (1999) (security guards act as employer's agents where they act under employer's
specific instructions in ejecting unwanted persons from its property).
Moreover, Smith's authority was confirmed by Miyasato, who, when asked whether there
was a member of management in charge of the situation, told Ching that Smith would be
35 sufficient to serve in that role. Based on this, a reasonable employee would understand that
Smith was speaking and acting for Respondent; I therefore find that he had apparent authority to
speak on behalf of Respondent on this occasion. See Perdue Farms, Inc., 323 NLRB 345, 351
(1997) (security guards placed in a position to stop individuals from entering premises are
cloaked with apparent authority); see also Waterbed World, 286 NLRB 425, 426-27 (1987) (test
40 for apparent authority is, whether, under all the circumstances, the employees "would reasonably
believe that the employee in question [the alleged agent] was reflecting company policy and
speaking and acting for management"). I therefore find that Smith acted as Respondent's
Section 2(13) agent.
17
JD(SF)-24-16
c. Smith's alleged threat
I next examine whether Smith's words would reasonably tend to unlawfully coerce
employees in Ching and Wolfgramm's position. Because Smith did not explicitly threaten to

5 have them arrested and because no Hotel employee had previously been "trespassed," the
potential repercussions to Ching and Wolfgramm for disobeying his directive were not clear.
However, because Smith (as instructed) specifically invoked the "trespass" procedure — which
was known to involve an automatic one-year penalty from the Hotel — I find that a reasonable
employee would assume that some level of discipline or reprisal was at stake. In any event,
10 Smith's statements also amounted to an order that the employees cease their handbilling conduct
or face unspecified consequences. As such, if their activity was protected, this directive
constituted an unlawful threat of future unspecified reprisals. See Lancaster Fairfield Comm.
Hosp., 311 NLRB 401, 401 (1993) (directing employees to cease engaging in protected conduct
constitutes a threat of future unspecified reprisals for engaging in such activity); see also Casino
15 Pauma, 363 NLRB No. 60, slip op. at 9 (2015) (order that employees cease lawful handbilling
constitutes unlawful interference with protected activity in violation of 8(a)(1)).
d. The entrance area as a work vs. nonwork area
20 Whether Ching and Wolfgramm's conduct on August 11 was protected turns, of course,
on whether it was conducted in a work or nonwork area of the Hotel. The Board law is clear that
activities such as security, maintenance and valet parking, which typically occur in a hotel lobby,
are incidental to a hotel's primary function, and thus insufficient to transform a hotel's front
entrance area into a "work area" where an employer may lawfully ban employee distributions.
25 Casino Pauma, supra; Remington Lodging & Hospitality, LLC (Sheraton Anchorage), 363
NLRB No. 6 (2015); Remington Lodging & Hospitality, LLC (Sheraton Anchorage), 362 NLRB
No. 123 (2013); Santa Fe Hotel, Inc., 331 NLRB 723 (2000). Respondent argues that, due to the
lower lobby's open-air design, the refusal to allow Ching and Wolfgramm distribute handbills on
August 11 should not be judged by this standard. Specifically, according to Respondent, the
30 Hotel operation's primary function differs from that of a traditional hotel or casino hotel in that it
includes providing "outdoor lounging and food and beverage services to its guests"; the lower
lobby, Respondent asserts, is "essential" to this function, in that it provides a setting for guests to
enjoy food as well as a tropical, outdoor lounging experience. (R. Br. at 37, 40)34 Furthermore,
Respondent argues that, unlike the handbillers in prior cases, Ching and Wolfgramm were not
35 positioned "outside" a hotel entrance, but rather stood "inside" the Hotel; that is, beyond the red
curb line.
I disagree with Respondent that the Board's prior hotel handbilling cases are inapplicable
here. As a preliminary matter, I am not convinced that the lower lobby is significantly different
40 from any other hotel lobby where departing guests wait with their luggage for the next stage of
34 In this regard, Respondent has moved for administrative notice of certain facts, including the
temperatures in Anchorage and Honolulu on the days handbilling occurred in this and the prior cases.
(See R. Exh. 20) As neither the Board decisions nor the underlying administrative law judge decisions in
the Sheraton Anchorage cases considered Anchorage's weather in finding that certain handbilling took
place in a nonwork area, my taking notice of such facts would be inappropriate. Respondent's Motion to
Take Administrative Notice, which additionally requests that I take notice of an unauthenticated
photograph of the Sheraton Anchorage hotel, is hereby denied.
18
JD(SF)-24-16
their travel. While Respondent's guests may enjoy the local climate while they wait, the lobby
itself does not provide ocean or sky views, and the record evidence demonstrates that most of the
waiting guests are either watching television, napping or engaging with their smartphones.
Moreover, unlike the lobby area considered by the Division of Advice in Hyatt Hotels Corp
5 d/b/a Hyatt Regency Century, Case 31-CA-088555, Advice Memorandum dated April 11, 2013,
the Hotel operates no bar or restaurant in the lower lobby and provides no regular live
entertainment there.' Under these circumstances, I cannot find that the maintenance of an open-
air lobby that allows Hotel guests (along with the general public) to enjoy the agreeable local
climate itself renders that space integral to Respondent's provision of lodging and guest services.
10
I also decline to find that Ching and Wolfgramm lost the Act's protection based on where
they stood when Smith confronted them. As a preliminary matter, an area does not gain
"nonwork" status based solely on its physical location but rather on the activity that is conducted
there.36 The photographic and testimonial evidence indicates that Ching and Wolfgramm stood
15 in the entry area in front of large pillars and plants, which form the only physical barrier of any
kind between the driveway and the lounge area. But for the lack of a structural façade, they were
positioned similarly to the employees in the Board's prior hotel handbilling cases, and, as in
those cases, in an area where the only operations carried out are incidental to the Hotel's main
function.'
20
For the above reasons, I find that the entrance area, as I have defined it above, constitutes
a nonwork area of the Hotel, and therefore find that Respondent, by Smith, unlawfully threatened
Ching and Wolfgramm with unspecified reprisals if they handbilled there. Finally, I would note
that, even were the area where Ching and Wolfgramm stood found to be a working area, Smith's
25 order would be unlawful, in that — based on his explicit instructions from Hotel management — he
threatened to "trespass" them if they did not leave the Hotel property, not just the lower lobby.
As such, to the extent that his order acted to ban the employees from handbilling anywhere on
Respondent's property, it was unlawful regardless of where they stood when Smith issued it.
35 In any event, an Advice Memorandum does not constitute Board law and has no binding effect on me.
I therefore decline to give it any significant weight. See Glendale Associates, Ltd., 335 NLRB 27,33-34
(2001) (citations omitted).
36 For this reason, I reject as irrelevant Respondent's claim that the employees stood "inside" the Hotel's
"entrance" as demarcated by the red-painted curb line. (R. Br. at 35)
37 Respondent's suggestion that it may declare its lobby a work area because it allows handbilling in
alternative non-work areas misreads the Board law; where employee access is at issue, the employer's
provision of alternative access is not a defense. See Mazzara Trucking & Excavating Corp., 362 NLRB
No. 79, slip op. at 4 (2015) (discussing differing standards governing lawful restrictions on employee
versus nonemployee access for purposes of organizing).
19
JD(SF)-24-16
CONCLUSIONS OF LAW
1. Respondent Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and
5 Hotel Renew is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. By issuing employees Edgardo Guzman and Santos "Sonny" Ragunj an written
discipline for engaging in union and/or protected activity, Respondent has violated Section
10 8(a)(3) and (1) of the Act.
3. By the following acts and conduct, Respondent has violated Section 8(a)(1) of the
Act:
15 (a) threatening employees with discharge for engaging in
union and/or protected activity;
(b) ordering employees to cease engaging in union and/or protected activity; and
(c) soliciting employees to disclose their union sympathies.
20 4. The unfair labor practices, described above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that 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. On these findings of fact and conclusions of law and on the entire record,
I issue the following recommendedm
ORDER
Respondent, Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew,
its officers, agents, successors and assigns, shall
35
1. Cease and desist from:
(a) Disciplining employees because they engaged in union and/or protected activity;
40 (b) Ordering employees to cease engaging in union and/or protected activity;
38 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
20
25
30
Mara-Louise Anzalon
JD(SF)-24-16
(c) Threatening employees with discharge for engaging in union and/or protected
activity;
(d) Soliciting employees to disclose their union sympathies; or
(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, remove from its files any reference to
its unlawful discipline of Edgardo Guzman and Santos ("Sonny") Ragunj an, and within 3 days
thereafter notify each of them in writing that this has been done and that this discipline will not
be used against him in any way.
15
(b) Within 14 days after service by the Region, post at its facility in Honolulu, Hawaii
copies of the attached notice marked "Appendix" in English, Ilocano and Tagalog." Copies of
the notice, on forms provided by the Regional Director for Region 20, after being signed by
Respondent's authorized representative, shall be posted by Respondent and maintained for 60
20 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
25 current employees and former employees employed by the Respondent at any time since May
19, 2015.
(c) Within 21 days after service by the Region, file with the Regional Director for
Region 20 a sworn certification of a responsible official on a form provided by the Region
30 attesting to the steps that Respondent has taken to comply.
It is further ordered that the Complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
5
10
35 Dated: Washington, D.C. May 31, 2016
Administrative Law Judge
39 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board."
40
21
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT discipline you for discussing UNITE HERE! Local 5 (the Union) with your
coworkers, including asking them to take pictures for the Union and/or to sign authorization
cards for the Union.
WE WILL NOT threaten you with unspecified reprisals for concertedly handbilling at the
entrance to the Aston Waikiki Beach Hotel lower lobby or any other nonwork area at the Aston
Waikiki Beach Hotel or Hotel Renew (the Hotel properties) seeking to publicize the Union's
organizing campaign at the Hotel properties.
WE WILL NOT order you not to engage in rallies in support of the Union.
WE WILL NOT order you not to visit your coworkers' homes to discuss the Union.
WE WILL NOT threaten you with discharge by telling you that you are lucky to have jobs.
WE WILL NOT ask you to disclose your feelings about the Union by inviting you to
"apologize" for engaging in conduct in support of the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL, within 14 days of this Order, remove from our files any reference to the unlawful
written warnings issued to Edgardo Guzman and Santos "Sonny" Ragunjan, and WE WILL,
within 3 days thereafter, inform each of them in writing that this has been done and that those
written warnings will not be used against them in any way.
AQUA-ASTON HOSPITALITY, LLC d/b/a
ASTON WAIKIKI BEACH HOTEL and HOTEL
RENEW
(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.
NLRB Region 20
901 Market Street, Suite 400
San Francisco, CA 94103
Hours: 8:30 a.m. to 5 p.m.
415-356-5130
The Administrative Law Judge's decision can be found at www.nlrb.govicase/20-CA-154749 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, SE., Washington, D.C. 20570, or by calling (202) 273-1940.
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, 415-356-5130