DH Long Point Management LLC dba Terranea Resort

National Labor Relations Board - Administrative Judge Opinions

Jun 21, 2019

31-CA-226377 (N.L.R.B. Jun. 21, 2019)

JD(SF)–18–19
Rancho Palos Verdes, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DH LONG POINT MANAGEMENT LLC
and Case 31–CA–226377
UNITE HERE LOCAL 11
Marissa Dagdagan, Esq.,
for the General Counsel.
Paul Rosenberg, Esq. and Nancy Inesta, Esq.
(Baker & Hostetler LLP),
for the Respondent Company.
Jeremy Blasi, Esq. and Charles Du, Esq.,
for the Charging Party Union.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. For approximately 9 years,
Freddy Lovato worked in the kitchens at the Terranea Resort in Rancho Palos Verdes, California.
He began in May 2009 as a cook II, was promoted to a cook I in March 2010, and was promoted
again to the position of junior sous chef in July 2010. He continued in that position for the next
8 years without incident (aside from a verbal warning in 2012 for not taking a break on time).
However, in October 2017, Lovato began openly and actively supporting an employee
campaign to obtain representation by UNITE HERE Local 11 and to improve working
conditions at the resort. He was a member of the union organizing committee. He spoke to the
press and was quoted by several news outlets in October and December 2017 (Bloomberg, Eater
Los Angeles, LAist, and the Los Angeles Times) describing the “terrible” working conditions in
“the back of the house” and the resort’s alleged violations of wage and hour laws and
exploitation of foreign interns. He also participated in several union and/or employee
delegations, including two that attempted to meet with the resort’s president in October 2017 and
March 2018, and a third that submitted a petition to the City in early May 2018 in support of a
local ballot initiative to require the resort and other large hospitality employers to pay a $15/hour
minimum wage.
Several weeks later, on June 2, 2018, Lovato was issued a “final written warning”—his
first discipline in 6 years—assertedly because he failed to ensure that the sauce on a guest’s mac
and cheese dish was gluten-free as ordered. And a few months later, on August 13, he was
terminated, assertedly because he attempted to wash off and reuse a large batch of 50 fried
chicken wings after the guests belatedly changed their order to a different sauce, and because he
subsequently left the wings uncovered in the cooler and failed to throw them out as instructed by
the chef de cuisine.
JD(SF)–18–19
2
The General Counsel alleges that both the final written warning and the termination were
unlawful; that the Respondent Company1 disciplined and discharged Lovato for the asserted
reasons because he was a prominent and outspoken supporter of the union campaign and
improving employee working conditions at the resort, in violation of both Section 8(a)(1) and
Section 8(a)(3) of the National Labor Relations Act.25
The Company denies the allegations. It contends that junior sous chef is a supervisory
position and that Lovato was therefore not even an employee protected by the Act.
Alternatively, it contends that Lovato’s union or protected concerted activities had nothing to do
with the final written warning and the termination; that Lovato was lawfully disciplined and 10
discharged solely because of his poor work performance and insubordination as stated in the
June and August 2018 disciplinary notices.
A hearing to address these allegations and defenses was held on April 2–5, 2019, in West
Los Angeles. The General Counsel, the Union, and the Company thereafter filed briefs on May 15
23, 2019. As discussed below, the allegations are supported by a preponderance of the credible
evidence.3
I. BACKGROUND
20
The Terranea Resort includes a 600-room hotel and numerous restaurants (Mar’sel,
Nelson’s, Bashi, Catalina Kitchen, Solviva, The Grill, and Cielo Point), each of which has its
own menu, kitchen, and operating procedures. There is also a separate banquet kitchen, which
prepares food for large events, and an adjacent “in-room dining” (IRD) kitchen that is open 24
hours a day and prepares food ordered off the room service menu. The IRD kitchen also prepares 25
food for Sea Beans, a coffee bar at the resort, and the Lobby Bar & Lounge.
Bernard Ibarra, the executive chef and vice president of culinary experience, oversees all
of the resort’s kitchens. Each kitchen also has a chef de cuisine and sous chef, which all parties
agree are likewise management positions. Below them in each kitchen, by order of rank, are a 30
junior sous chef, cooks I, II, and III, cook interns who recently completed culinary school,
and helpers provided by a temp agency when needed. (Tr. 596–599, 608, 655–656, 669, 730,
734.)
35

1 The Respondent, DH Long Point Management LLC, operates the resort.
2 The initial and amended charges were filed on August 24 and October 4, and the complaint
issued on December 28, 2018. The Board’s jurisdiction is uncontested and established by the
admitted factual allegations.
3 Citations to the record are included to aid review and are not necessarily exclusive or
exhaustive. In making credibility findings, all relevant factors have been considered, including
the interests and demeanor of the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts; inherent probabilities;
and reasonable inferences that may be drawn from the record as a whole. See, e.g., Daikichi
Corp., 335 NLRB 622, 623 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed
Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert. denied 522 U.S. 948 (1997).
JD(SF)–18–19
3
Following his promotion to junior sous chef, Lovato initially worked at Nelson’s and/or
Catalina Kitchen. However, he transferred to the IRD kitchen in or about 2012, where he
continued for the next 6 years until his August 2018 discharge. At the time of the alleged
unlawful disciplinary actions, the sous chef in the IRD kitchen was Efren Ruano, and the chef de
cuisine, the top manager in the kitchen, was Mona Guerrero. Guerrero had previously been 5
promoted into the same position at Nelson’s but transferred to the IRD kitchen at the end of 2017
or beginning of 2018. Also working in the IRD kitchen were 9 or 10 cooks, 5 or 6 cook interns,
and 2 helpers.4
Guerrero and/or Ruano set the weekly work schedule for Lovato and the other IRD 10
kitchen workers, assigning each to one or more of the four daily shifts (breakfast, lunch, dinner,
and overnight). Lovato was always scheduled to work the dinner shift (2–10:30 pm). Guerrero
and Ruano typically began work between 9 am and noon and worked at least 10 hours. One or
both of them always worked on the same days as Lovato and were present during most of his
shift.515
Guerrero and/or Ruano also assigned Lovato and the other IRD kitchen workers to a
particular station in the kitchen based on an assessment of each person’s skills and experience.
Lovato and the cooks and cook interns were assigned to one of the three sections on “the line”:
the hot side, the fryer, or the cold side. Lovato and the other more experienced cooks (I or II) 20
were assigned to the hot side, which cooks the more expensive protein dishes. Less experienced
cooks were assigned to the cold side, which cooks pizzas and makes salads, cold sandwiches,
appetizers, and desserts. (Tr. 37–38, 49–50, 55, 152, 641, 741, 805.)
Lovato and the other cooks on the line received food orders on tickets that were typed 25
into a computer by room service personnel and printed out on one of the kitchen’s two printers.
Depending on their station, they then cooked or prepared whatever hot and/or cold dishes were
on the ticket. Whoever prepared the dishes then placed them in a window on a long counter that
runs along the line for the servers to pick up and deliver to the rooms.
30
During a “rush” (a very busy period during a shift), Guerrero, Ruano, or a room service
manager usually acted as an expediter or “expo” by standing on the other side of the window/
counter and making sure the dishes were prepared and organized correctly according to the ticket
order and the resort’s standards. However, during other periods or if none of these individuals
were available, it was up to those working on the line and the servers to make sure the dishes35
were correct. (Tr. 36–41, 231, 671, 701–709, 803–804, 817–818.)

4 See GC Exhs 2, 9; R. Exh. 5; and Tr. 156–159. Executive Chef Ibarra usually began work
at 6:30 am and stayed until about 9 pm. Although he had an office near the IRD kitchen, he only
spent about 60 percent of his time in it, and as indicated above he also had to oversee all the
other kitchens. (Tr. 612, 625, 660–661, 679.)
5 See GC Exh. 9; R, Exhs. 3 (“Culinary Weekly Leadership” schedule), 5, 30; and Tr. 42, 60.
Like Lovato, neither Guerrero nor Ruano typically worked during the overnight shift and early
breakfast shift (10:30 pm–9 am). Thus, the record indicates that no one in the IRD kitchen
“leadership” was present in the kitchen to oversee the cooks and other employees during that
time.
JD(SF)–18–19
4
II. WHETHER LOVATO WAS A SUPERVISOR
Section 2(11) of the Act, 29 U.S.C. § 152, defines a supervisor as
any individual having authority, in the interest of the employer, to hire, transfer, 5
suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.10
The burden is on the party asserting 2(11) supervisory status to establish by a preponderance of
the evidence that the individual has the authority to perform or effectively recommend at least
one of these listed actions. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 710
(2001); and Entergy Mississippi, Inc., 367 NLRB No. 109, slip op. at 2 (2019).15
Here, there is no contention or evidence that the junior sous chefs in the IRD and other
kitchens had the 2(11) authority to hire, transfer, suspend, lay off, recall, promote, discharge,
assign,6 reward,7 discipline, or adjust grievances of cooks or other kitchen employees during the
relevant period. Nor is there any contention or evidence that they had the 2(11) authority to 20
effectively recommend such actions. Indeed, there is no evidence that they were even consulted
or asked to provide an evaluation or other input with respect to any of these types of actions.

6 The Company introduced a transcript of a September 15, 2016 deposition Lovato gave in an
unrelated third-party lawsuit where he testified that he was an “entry level supervisor” who
“help[ed]” his chef “supervise” the kitchen staff, and that he had the authority in 2014 to grant a
cook’s request to leave early (R. Exh. 4, pp. 7, 30–33). The Company also elicited testimony
from Lovato on cross-examination that, during the relevant period here (from October 2017 until
his August 2018 termination), cooks or other kitchen employees would sometimes ask him if
they could leave early if business was slow and the chef de cuisine and sous chef were not
around (Tr. 192–193). However, the Company’s posthearing brief cites this as evidence of
responsible direction rather than assignment of employees. In any event, Lovato did not testify
that he still had the authority to grant such requests during the relevant period (Company counsel
never asked him). Further, as discussed above, the record indicates that Guerrero and/or Ruano
were always scheduled to work on the same days as Lovato, and were present during most of his
dinner shift, including the rush period. The Company presented no evidence that Lovato’s
decision would have been more than “routine or clerical in nature” and required “independent
judgment” within the meaning of Section 2(11) in these circumstances. Accordingly, the
Company failed to establish that Lovato had supervisory authority on this basis. See Hobson
Bearing International, 365 NLRB No. 73, slip op. at 22 (2017); and Community Education
Centers, Inc., 360 NLRB 85, 94 (2014).
7 Chef de Cuisine Guerrero testified that junior sous chefs could “verbally reward”
employees (Tr. 816). However, the Company’s posthearing brief does not rely on this testimony.
In any event, the mere ability to orally praise or compliment an employee’s work is insufficient
to establish 2(11) supervisory authority. Indeed, even the authority to issue written evaluations is
insufficient to establish 2(11) supervisory status absent evidence that the evaluations affect the
wages or job status of the evaluated employees. See Willamette Industries, Inc., 336 NLRB 743
(2001); and Harborside Healthcare, Inc., 330 NLRB 1334 (2000), and cases cited there.
JD(SF)–18–19
5
Rather, the Company’s sole contention is that the IRD and other junior sous chefs had the
2(11) authority to responsibly direct cooks and other kitchen employees. In support, it cites a
variety of documentary and testimonial evidence, including the junior sous chef position
description, testimony by Ibarra, Guerrero, Lovato himself, and other junior sous chefs and
cooks about the junior sous chef’s authority, performance evaluations and assessments of junior 5
sous chefs, and certain secondary or circumstantial indicia of supervisory status.
As discussed below, however, none of this evidence, either individually or in
combination, satisfies the Company’s burden of proof.
10
A. The Junior Sous Chef Position Description
The junior sous chef position description in effect during the relevant period stated,
among other things, that junior sous chefs had “the opportunity” to “supervise [and] coordinate
. . . activities of cooks and other kitchen personnel,” and the “responsibilities” of “guiding and 15
supporting the team”; that the “scope” of their position included “oversee[ing] Terranea Resort
culinary operations” and “[being] responsible for leadership of direct reports and all of their
employees”; and that the “activities” of their position included “provid[ing] essential hands on
leadership to ensure functional food & beverage operations.” (R. Exh. 7.)
20
However, the Board has consistently held that such “paper” authority is insufficient by
itself to establish actual supervisory authority under Section 2(11). See Chi Lakewood Health,
365 NLRB No. 10, slip op. at 1 n. 1 (2016), and cases cited there. See also Beverly Enterprises-
Massachusetts, Inc. v. NLRB, 165 F.3d 960, 962–964 (D.C. Cir. 1999).
25
B. Testimony Regarding the Authority of Junior Sous Chefs
As discussed above, like the cooks, the junior sous chef was assigned to a station on the
line in the IRD kitchen and cooked dishes throughout the scheduled shift. However, Ibarra
testified that when both the chef de cuisine and the sous chef were not around—i.e., when they 30
were off or were doing other tasks in the office such as making menu changes, ordering supplies,
or performing administrative work—the junior sous chef became “the person in charge.” This
meant that, in addition to cooking, he was expected to “monitor” the line, make sure the cooks
made the dishes correctly, and direct them to remake a dish if they failed to do so. (Tr. 605–607,
610.) Guerrero testified that when both she and Ruano were not around the junior sous chef 35
could also move a cook to a different station “on the fly” if the kitchen was “going down” during
a rush (Tr. 796–798, 820).
Lovato and other junior sous chefs gave similar testimony. Lovato confirmed that he was
“in charge” when Guerrero and Ruano were not there, and that he had to “keep an eye on the 40
line” and would correct mistakes if he caught them.8 Francisco Santos, who worked as a junior
sous chef in the banquet/main kitchen, testified that he was “the one to oversee . . . the operation”
when the chef de cuisine and sous chef were not there (Tr. 456). And Pablo Noh, who worked as
a junior sous chef at Nelson’s until January 2019, testified that he was one of “the kind of

8 Tr. 34, 153, 163 –165, 175. See also Lovato’s prior deposition testimony, discussed in fn. 9,
above, R. Exh. 4, at pp. 12, 30 and 33 (it was his decision whether to allow a cook to leave early
in 2014 because he was the cook’s “supervisor”)
JD(SF)–18–19
6
managers” and the “third person in charge” after the chef de cuisine and sous chef (Tr. 367–368).
See also the testimony of Jose Flamenco, who worked as a cook II in the IRD kitchen, Tr. 249
(chef de cuisine, sous chef, and junior sous chef are the three supervisors in the kitchen); and
Gary Landsberg, who worked as a cook II at Mar’sel until March 2018, Tr. 285–286, 333–334
(he reported to the junior sous chef “in some capacity,” who would sometimes tell him what to 5
do).9
There is insufficient evidence, however, that such direction required “independent
judgment” within the meaning of Section 2(11). The Board has held that judgment is not
independent within the meaning of that provision if it is “dictated or controlled by detailed 10
instructions, whether set forth in company policies or rules [or] the verbal instructions of higher
authority.” Oakwood Healthcare, Inc., 348 NLRB 686, 693 (2006). Consistent with Section
2(11), this interpretation distinguishes “true supervisors who exercise ‘genuine management
prerogatives’ with ‘straw bosses, leadmen, [and] set-up men,’ who are still entitled to the Act’s
protections despite the exercise of ‘minor supervisory duties[,]’ NLRB v. Bell Aerospace Co., 15
416 U.S. 267, 280–81 [ ] (1974),” and “faithfully implements the Supreme Court’s guidance”
in NLRB v. Kentucky River Community Care, 532 U.S. at 714, that “‘detailed orders and
regulations issued by the employer’ might preclude a finding of independent judgment.” NLRB.
v. Sub Acute Rehabilitation Center at Kearny, LLC, 675 F. Appx. 173, 177 (3d Cir. 2017).
20
Executive Chef Ibarra testified that the IRD junior sous chef had no involvement in
creating the room service menu, selecting the ingredients for each dish, establishing the steps for
preparing each dish, or determining how the dish should taste or look on the plate. Ibarra
testified that only he, the IRD chef de cuisine and sous chef did so; that they were “very precise”
about it; and that the cooks, including the junior sous chef, were required to follow the 25
“standard” or “template” they created.10 Further, Guerrero testified that the junior sous chef
would only move a cook to a different station in a crunch who was already known to have the
experience to work at that station.
There is also insufficient evidence that the IRD junior sous chef “responsibly” directed 30
other cooks in preparing dishes within the meaning of Section 2(11). Responsible direction
means not only being able to take action to ensure tasks are performed correctly by an employee,

9 At the General Counsel’s request, I permitted Landsberg to testify by videoconference from
the Board’s regional office in Philadelphia. Although the Company objected, I found that the
General Counsel’s motion set forth “good cause based on compelling circumstances” under Sec.
102.35(c) of the Board’s Rules; specifically, that Landsberg currently lived and worked as a
restaurant line cook in that city; that his corroborating testimony was necessary to prove the
complaint allegations; that he might be unable to travel to Los Angeles for the hearing due to the
additional time it would require him to be away from his job; that he would most likely be
precluded from testifying if he was not permitted to do so by videoconference; and that
videoconferencing was the only certain means of securing his testimony. I also found that the
General Counsel’s motion set forth “the conditions in place to protect the integrity of the
testimony” and the “appropriate safeguards” that would be implemented as required by Sec.
102.3(c)(1) and (2). See my March 29, 2019 order.
10 See also Guerrero’s testimony, Tr. 815 (she would ask “everybody” in the kitchen for input
on the menu, including but not limited to the junior sous chef, but she created the room service
menu in collaboration with Ibarra and Ruano, and she and Ibarra made the final decision).
JD(SF)–18–19
7
but also being accountable for that performance, i.e., there is a prospect of material consequences
to the alleged supervisor if the employees he/she directs do not perform their tasks correctly.
Oakwood Healthcare, 348 NLRB at 691–692; and Golden Crest Healthcare Center, 348 NLRB
727, 731 and n. 13 (2006). See also UPS Ground Freight, Inc. v. NLRB, 921 F.3d 251, 255 (D.C.
Cir. 2019).5
The Company attempted to establish that the IRD junior sous chef could be held
accountable for the performance of other kitchen staff by introducing a “memo to file” regarding
Lovato that Guerrero wrote in early July 2018 and emailed to Ibarra and Anita Kwok, the
resort’s chief of “people services” a/k/a human resources (HR). The memo stated:10
I am writing this not as a disciplinary notice, but to clarify some concerns that
have recently been brought to my attention and to note the disciplinary actions
that may transpire from these issues if the behavior continues.
15
The memo then summarized a conversation she had with Lovato on July 7 about the previous
evening’s service. The memo stated that she expressed “concern” with the “lack of leadership”
and “initiative to guide the team” he displayed during the “much disorganized evening of
service,” and the “hope” that he “will be able to provide leadership, guidance, and supervision to
our team” moving forward. (R. Exh. 21.) 20
However, the memo did not set forth any further details regarding the “disorganized
evening of service.” Neither did Guerrero in her hearing testimony, except that “it was kind of a
cluster that night” and Lovato’s station “crumbled” (Tr. 775).
25
Further, Executive Chef Ibarra, who supervised Guerrero, testified that he did not believe
the evening service on July 7 warranted disciplining Lovato, and that he told Guerrero so. Ibarra
testified that “we do a lot of lecturing and coaching,” and that Guerrero’s conversation with
Lovato was just a coaching. (Tr. 645–646.)
30
Moreover, Guerrero acknowledged that, aside from the June 2018 final written warning
to Lovato for failing to ensure that a mac and cheese order was gluten free, she could not identify
any example during her 5 years as a chef de cuisine where a junior sous chef in any of the
resort’s kitchens was disciplined for the poor performance of other kitchen staff. Neither could
Ibarra, who had been the resort’s executive chef for 6 years, nor Kwok, who had been the HR 35
director or senior director since 2015.11

11 See Tr. 692, 695–697 (Ibarra); 818 (Guerrero); and 842–843, 864, 871 (Kwok). The
Company argues that a written warning Banquet Kitchen Junior Sous Chef Santos received in
November 2018 for serving undercooked/raw chicken (GC Exh. 21, p. 12) is such an example.
When questioned at the hearing, Santos testified that he had, in fact, been disciplined on that
occasion for someone else’s mistake (Tr. 475–476, 480). However, when asked to explain
exactly what happened, Santos testified that he was the only person responsible for the event that
day; that he personally heated up the chicken in the oven and plated it; and that he didn’t check
to make sure the chicken was fully cooked because he thought it had been fully cooked the day
before per the usual practice (Tr. 476). Santos’s description of the incident is consistent with the
summary description in the written warning and was not controverted. Thus, when he testified
that he had been disciplined for someone else’s mistake on that occasion, he was obviously
JD(SF)–18–19
8
As for Lovato’s June 2018 final written warning, the testimony is conflicting about why
it was issued. Although Guerrero and Ibarra testified that Lovato was disciplined for failing to
ensure that the other hot-side cook (Jose Flamenco) made the gluten free mac and cheese dish
correctly, Kwok—who Ibarra consulted and who wrote the summary “description of situation”
on the disciplinary notice—testified that she thought that both Flamenco and Lovato had made 5
the mac and cheese dish incorrectly.12 Thus, even assuming the June 2018 final written warning
to Lovato was nondiscriminatory and lawful (which, as discussed below, is contrary to the
weight of the evidence), it is not a clear example of a junior sous chef being disciplined solely
for the poor performance of others.
10
Accordingly, the Company failed to establish by a preponderance of the evidence that
there was a prospect of discipline to Lovato or other junior sous chefs for failing to ensure that
other kitchen staff performed their tasks well or correctly. See Entergy Mississippi, 367 NLRB
No. 109, slip op. at 2–3 (“Supervisory status is not proven where the record evidence ‘is in
conflict or otherwise inconclusive.’”), quoting Phelps Community Medical Center, 295 NLRB 15
486, 490 (1989).
C. Performance Evaluations and Assessments of Junior Sous Chefs
The record also includes a number of performance evaluations or assessments that 20
management completed over the years for Lovato and Santos, who as indicated above worked as
a junior sous chef in the banquet/main kitchen. Three of the Lovato evaluations or assessments
commented that he needed to “take control of the kitchen more” (Nelson’s-Catalina Kitchen July
2011); to “show more initiative in organization of kitchen” and “more leadership” (IRD Kitchen
July 2015); and to “[m]ake sure WHOLE team is set for the shift” and “be more engaging and 25
show your presence as a manager” (IRD Kitchen May 2018) (GC Exhs. 3, 5; R. Exh. 22).13
Several of the Santos evaluations similarly commented that he needed to “work on being a leader
and giving Associates directions” (July 2013); to exercise “more of a leadership role” (August
2014); to “understand[] his role as a supervisor,” “grow and develop more as a supervisor,” and
“delegate simple task[s]” to . . . cook [III] and helpers” (July 2015); and to “guide our staff to 30
success” and learn “to organize the staff and execute orders accordingly” (Dec. 2017). (R. Exhs.
8–11).
The Company contends that these negative comments likewise show that Lovato and the
other junior sous chefs were accountable for the performance of the other kitchen staff. 35
However, as indicated above, such negative comments are not alone sufficient to establish
accountability; rather, the Company must show that Lovato or Santos suffered or might have
suffered material adverse consequences as a result. See Golden Crest Healthcare Center, 348
NLRB at 731–732.
40

referring to the failure of someone to fully cook the chicken the day before, not the mistake of
someone under his direction on the day the chicken was served.
12 See Tr. 638–639, 723 (Ibarra), 757, 760 (Guerrero), and 868–869 (Kwok). The description
Kwok wrote is set forth infra.
13 Although the May 2018 assessment contained no title, Guerrero testified that it was a
“PIP” (performance improvement plan). See Tr. 729–732, 735.
JD(SF)–18–19
9
The Company argues that the potential for such adverse consequences is shown by the
fact that Lovato was never promoted to a sous chef position. See Lovato’s testimony, Tr. 47 (he
applied for a sous chef position but was never called for an interview).14 However, the
Company never presented any direct evidence that this was or might have been due to Lovato’s
inadequate direction of the other kitchen staff. Nor does the record as a whole support an 5
inference of such a cause and effect. As indicated above, only three of Lovato’s junior sous chef
evaluations or assessments between July 2010 and August 2018 included such negative
comments, in 2011, 2015, and 2018. And the record does not reveal when or how many times
Lovato applied for a sous chef position.15
10
Further, the standard evaluation form that the Company used for Lovato and the other
junior sous chefs did not even include directing the kitchen staff as a performance factor. Rather,
the above-quoted negative comments were variously included under such factors as “Knowledge
of Job,” “Working Relationships and Cooperation,” and “Dependability.”16
15
Moreover, similar negative comments were included in Lovato’s previous evaluations in
October 2009 and June 2010, when he was still a cook II or I. See GC Exhs. 6, 7 (“He needs to
push the younger cooks around him to do more and take more initiatives,” and “needs to improve
his leadership”). Yet, he was promoted to junior sous chef anyway shortly thereafter.
20
Thus, as with the prospect of discipline, the Company failed to establish that there was a
real—i.e., more than “merely speculative” (Golden Crest, 348 NLRB at 731)—prospect of being
denied a promotion or suffering other material adverse consequences for failing to adequately
direct the staff.
25
D. Secondary or Circumstantial Indicia of Supervisory Status
The Company does not dispute that Lovato and other junior sous chefs were required to
clock in and were paid by the hour like other employees rather than a salary like the chef de
cuisine and sous chef; that they received the same benefits as employees and were not eligible 30
for bonuses like the chef de cuisine and sous chef; and that they did not attend management or

14 As noted by the Company, the Board in Golden Crest indicated that material adverse
consequences could include, not only being disciplined, but being denied a merit increase, bonus,
or promotion. See 348 NLRB at 731 n. 13. It is unclear, however, whether the Board meant to
include any type of promotion, i.e., not only a promotion that involves a change in title and
increase in pay, but also a promotion that additionally involves a substantial change or increase
in job duties and authority (such as a promotion from junior sous chef to sous chef).
Nevertheless, as neither the General Counsel nor the Union argues for distinguishing between
types of promotions, I have assumed for purposes of this decision that being denied either type
may be evidence of accountability.
15 The record indicates that the IRD sous chef position was vacant from about Labor Day
(Sept. 5) 2016 to about Labor Day (Sept. 4) 2017. See Tr. 46, 228. Lovato’s two evaluations
prior to or during this period, in July 2015 and August 2017, rated him average, above average,
or outstanding on all the listed performance factors and did not include negative comments of the
type quoted above. See GC Exhs. 2, 3. (The record does not include a 2016 evaluation.)
16 The above-quoted comments in Guerrero’s May 2018 assessment or “PIP” were included
under the headings “Projects” and “Opportunities.”
JD(SF)–18–19
10
supervisory meetings and were denied access to certain “salaried manager” only areas like the
Culinary Room (Tr. 51, 56, 84, 687, 812; GC Exh. 8). However, it argues that certain other
“secondary indicia” support a finding that Lovato and the other junior sous chefs were
supervisors. Specifically, it cites Ibarra’s uncontroverted testimony that, like the chefs de cuisine
and sous chefs, junior sous chefs were given an email address and wore black pants and a jacket 5
with their name embroidered on it, rather than blue and white checkered pants and a plastic
nametag like the cooks (Tr. 608, 655–656). It also cites the previously discussed testimony by
Lovato and other junior sous chefs and cooks regarding their perception of the junior sous chefs’
supervisory status and/or authority.17
10
However, such secondary or circumstantial indicia cannot establish 2(11) supervisory
status where there is insufficient evidence that the subject individual actually has the authority to
perform or effectively recommend one or more of the specific actions listed in that section. See,
e.g., Sam’s Club, 349 NLRB 1007, 1014 (2007); Webco Industries, 334 NLRB 608, 610 (2001),
enfd. 90 Fed. Appx. 276, 282 (10th Cir. 2003); and NLRB v. Dole Fresh Vegetables, Inc., 334 15
F.3d 478 (6th Cir. 2003). As discussed above, the Company failed to establish that the IRD and
other junior sous chefs have any such authority.
III. WHETHER LOVATO WAS UNLAWFULLY DISCIPLINED AND DISCHARGED
20
A. The June 2 Final Written Warning
(The Gluten-Free Mac and Cheese Incident)
1. Factual background
25
Over the years, the IRD kitchen frequently received special orders from guests with
gluten, dairy, nut, and other allergies or sensitivities. The kitchen accommodated such special
orders by offering to prepare certain dishes without the offensive ingredient. For example, it
offered a gluten-free pizza and a gluten-free mac and cheese. The former required substituting a
frozen premade gluten-free pizza crust and using fresh sauce and cheese from a previously30
unopened container or bag to avoid cross-contamination. The latter required substituting both a
gluten-free pasta and a gluten-free cheese sauce prepared à la minute (on the spot) with cheddar
cheese and cream, as the regular sauce had a roux (mixture of butter or oil and flour) in it.18
There were occasionally incidents prior to 2018 where guests complained that a special 35
order was not prepared allergen-free as requested. Following such incidents, or if a VIP with
allergies was a guest, the IRD chef de cuisine at the time would remind the kitchen staff during
the regular preshift lineups that they needed to be vigilant and take precautions to avoid cross-
contamination, including using clean gloves, pans, utensils, and surfaces in preparing the special

17 The Company’s posthearing brief also cites evidence indicating that Lovato is often the
only chef on duty during the last hour or two of his dinner shift. However, as previously noted
(fn. 5), the record also indicates that there is typically no IRD kitchen chef whatsoever (chef de
cuisine, sous chef, or junior sous chef) during the entire overnight shift and early breakfast shift.
18 See R. Exh. 19 (IRD menu allergen chart that lists which items contain common allergens
and whether the allergens could be omitted from the order); and Tr. 72–75, 82, 210, 212, 256,
610–616, 753. See also fn. 39, infra.
JD(SF)–18–19
11
order. (Tr. 73–75.) There is no evidence that any kitchen staff were disciplined following those
incidents, however.
A few allergy-related incidents also occurred in 2018 between January, when Guerrero
transferred into the IRD kitchen, and August, when Lovato was terminated. The first occurred 5
on May 19, about a week before the subject mac and cheese incident, and involved an order for a
gluten-free pizza. The second was the gluten-free mac and cheese incident on May 25. The
third occurred a month later on June 29 and involved a guest with a pineapple allergy who
ordered a pineapple-free fruit dish.
10
a. The previous May 19 pizza incident
The previous incident involving the gluten-free pizza occurred late Saturday afternoon,
between 4:45 and 5 pm. Both Guerrero and Ruano were working that day and Guerrero was
moving around the kitchen at the time (R. Exh. 5; Tr. 806). Lovato was also working (R. Exh. 15
25).
At 4:52 pm a ticket came in for various items, including a gluten-free pepperoni pizza,
sliders, a vegan burger, a house salad, and brownies.19 Per the usual practice, the ticket
emphasized the special pizza order by stating “Gluten Free” underneath it multiple times. It also 20
added, “SEVERE WHEAT GLUTEN ALLERGY,” indicating that the gluten allergy was
particularly severe. (R. Exh. 26.)
A cook proceeded to make the pizza, and Guerrero, who was in the window, made sure it
was set aside for the server to deliver to the guest. Unfortunately, however, later that evening the 25
manager on duty received a report that the guest had suffered an allergic reaction and had been
transported to the local hospital by paramedics. The child’s father also complained to the front
desk the following morning, stating that his son “could have died”; that his family was
“traumatized”; and that he “highly doubted” that proper precautions were taken in preparing the
meal.2030
The incident was reported to Executive Chef Ibarra and others in the “Terranea
Leadership Group” later that morning. Ibarra subsequently spoke to Guerrero and Ruano about
it, and concluded that, at the very least, some cross-contamination had occurred in making the
pizza.21 However, he decided not to issue any type of discipline to anyone. Instead, he directed 35

19 The record is unclear whether pizza toppings such as pepperoni contained gluten.
However, the IRD menu allergen chart discussed above (R. Exh. 19) specifically indicated that a
“pepperoni pizza” could be prepared gluten-free.
20 Jt. Exh. 5; GC Exh. 19. The record does not reveal whether the family subsequently sought
compensation from the resort for medical expenses or other damages.
21 To the extent Guerrero’s and Ibarra’s testimony is inconsistent with this finding, it is
discredited. Guerrero testified that she was on the line when the ticket came in; that she
witnessed the cook make the gluten-free pizza properly; and that the cook confirmed that he
made it properly when she questioned him later (Tr. 752–753, 804). And Ibarra testified that he
relied on Guerrero’s account because it “was pretty factual” and “straight to the point” and he
“had no reason to believe that what she told me was not the truth” (Tr. 699). But, when she was
asked to identify who the cook was, Guerrero claimed that she could not remember, even after
JD(SF)–18–19
12
Guerrero and Ruano to remind the kitchen staff about the standard operating procedures for
allergen-free orders during the preshift lineups.22

being shown the work schedule for that evening (R. Exh. 5). In fact, she testified that it could
have been “anybody” on the line, even Lovato. (Tr. 805–806.) It is highly unlikely that Guerrero
could have forgotten who the cook was under the circumstances. As discussed above, it was an
unforgettable incident; a child was transported by paramedics to the hospital and reportedly
almost died. Further, Guerrero claimed to have personally watched the cook make the pizza, and
to have questioned him about it after learning of the child’s hospitalization. Indeed, she claimed
to remember very specific details about what she observed. See Tr. 752–753 (“I saw [the pizza]
being prepared . . . off to the side on another table”; “I remember seeing a bag of cheese” and a
new container of pizza sauce; and “when it came up to the window, we set it aside [where] the
server’s going to pick it up.”) Moreover, it is also highly unlikely that the pizza was made by
Lovato. As discussed above, pizzas were made on the cold side and there is no evidence that
Lovato even knew that the incident occurred at the time. (Lovato himself testified that he only
later heard about the incident from room service managers, and he did not know what day it
occurred or that he was working that day. See Tr. 79–80, 203–204.) Finally, it is also highly
unlikely under the circumstances that Guerrero would not remember that Lovato made the pizza
if, in fact, he had done so. In sum, Guerrero’s testimony was wholly unbelievable. And given
the obvious relevance of the incident to determining whether Lovato was disparately treated for
the subsequent mac and cheese incident, it is reasonable to infer that her testimony was intended,
not only to prevent the General Counsel and the Union from identifying and questioning the
cook who made the pizza, but to falsely suggest that Lovato himself might have made it.
There are also good reasons to disbelieve Ibarra’s testimony about what Guerrero said
had happened and/or whether he believed her. For example, although Ibarra testified that he had
no reason to doubt what Guerrero told him, there were clearly grounds to do so, including not
only the guest’s report and apparently strong belief about what had happened, but also the fact
that Guerrero, as the manager overseeing the kitchen at the time, obviously had a personal and
professional interest in absolving the kitchen of culpability. Moreover, at another point in his
testimony Ibarra seemed to falsely cast blame on the guest. See Tr. 621 (testifying that the guest
had not been “firm” in “stating that [the pizza] had to be totally segregated when the food was
delivered”). As indicated above, the ticket shows that the guest had, in fact, notified room
service that the child had a “SEVERE WHEAT GLUTEN ALLERGY.”
Accordingly, the opposite of Guerrero’s and Ibarra’s testimony is inferred: that no
discipline was issued despite their belief that the kitchen had failed to take sufficient precautions
to avoid cross-contamination or to otherwise ensure that the pizza was made gluten-free. See
Ozark Automotive Distributors, Inc. v. NLRB, 779 F.3d 576, 585 (D.C. Cir. 2015); and NLRB v.
Howell Chevrolet, 204 F.2d 79, 86 (9th Cir.) affd. 346 U.S. 482 (1953) (where witnesses are
discredited, the trier of fact may find, not only that their testimony was untrue, but that the truth
is the opposite of their testimony).
22 Ibarra’s testimony about management’s subsequent measures to make sure the staff were
reminded of the standard procedures for allergen-free orders was elicited by the Company itself
on direct examination. It has not been not relied on by the General Counsel or the Union in their
posthearing briefs, or here, as additional evidence that the kitchen had failed to follow the
standard procedures in making the gluten-free pizza. See FRE 407, Subsequent Remedial
Measures.
JD(SF)–18–19
13
b. The May 25 mac and cheese incident
As indicated above, the second incident involving the subject gluten-free mac and cheese
order occurred just 6 days later, on Friday May 25. It was early in the evening, between 6:15 and
6:30 pm, and the IRD kitchen was very busy. Lovato was working the hot-side grill and oven as 5
usual. Next to him, about 5–8 feet down the line working the stove and sauté station, was Jose
Flamenco. Flamenco was an experienced cook II who had worked the hot-side with Lovato for
several years, helped train the newer cooks, and prepared gluten-free orders every day. Unlike
Lovato, however, he had not publicly supported the union and was not considered a union
supporter by management.2310
Both Chef de Cuisine Guerrero and Sous Chef Ruano were also working. However,
neither was overseeing the line at the time. Guerrero was in the kitchen office working on menu
changes for the Lobby Bar. And Ruano was in the back helping her with recipes for the new
menu items. No room service manager was around to expedite either. (R. Exh. 5; Tr. 209, 232, 15
745).
At 6:22 pm, a ticket came in ordering numerous items, including a gluten free mac and
cheese, two regular mac and cheeses, an avocado grilled cheese, a BLTA, a burger, and three
orders of fries. Again, the ticket highlighted the special mac and cheese order by stating “Gluten 20
Free” several times underneath it. It also stated “Allergy” several times to emphasize that the
guest actually had an allergy to gluten. (R. Exh. 24; Tr. 747–748.)
It was Flamenco’s job to make all three mac and cheese orders at the stove and
sauté station, including the gluten-free one, and he did so. He then placed them in the window 25
on the counter for the server to take along with the other items on the ticket. Lovato, who was
busy at the grill and oven preparing other orders, did not work on or handle the gluten-free mac
and cheese dish in any way. (Tr. 82– 83, 258, 264–266, 760.)
Sometime later, the front house manager received a call from the mother of the child who 30
had ordered the gluten-free mac and cheese. She reported that her daughter began vomiting after
eating it. The manager apologized and asked if her daughter needed medical assistance. She
said no, was forgiving about the matter, and accepted the manager’s offer to comp the room
service bill. (Jt. Exh. 3.)
35

23 See R. Exhs. 5, 24; and Tr. 81, 157, 166, 207–208, 247–252, 255–256, 259, 266–267, 806,
853–858. Contrary to Lovato and Flamenco, Guerrero testified that it was “later in the evening”
and was not particularly busy at the time because the dinner rush typically occurs “kind of early”
(Tr. 821). However, her testimony was not corroborated by Ruano, whom the Company did not
call to testify, the room service manager, who was also not called to testify, or any other
manager. Moreover, it was inconsistent with the documentary evidence. The ticket for the mac
and cheese order (R. Exh. 24), which Guerrero testified she inspected after the incident (Tr. 746),
shows that it came in at 6:22 pm. Thus, this appears to be another example where Guerrero gave
false testimony; this time both to explain why she and Ruano were not in the window and to
suggest that any error that occurred in making the gluten-free mac and cheese dish was more
egregious because the kitchen was not particularly busy at the time. See also fn. 21, above.
JD(SF)–18–19
14
The manager notified Guerrero of the call shortly after, and Guerrero went to the line to
look at the ticket and speak with Lovato and Flamenco about it. Her conversation with them was
very short, about 30–45 seconds, and she asked only two questions. Her first question was
whether Flamenco had used the gluten-free pasta, which was a different shape than the regular
kind. Flamenco said he had and showed her the separate pot and water he had used to boil it. 5
Guerrero then asked what else could have been the cause of the daughter’s reaction. Lovato
replied, “Oh, the cheese sauce, it has a roux in it.” And Flamenco did not follow up or say
anything indicating that he had substituted a gluten-free sauce. Guerrero therefore concluded
that Flamenco must have forgotten to do so, and she ended the conversation and returned to her
office.24 10
Shortly thereafter, beginning around 9 pm, Guerrero sent a series of emails to Executive
Chef Ibarra describing the incident. She told him about the child’s order for a gluten-free mac
and cheese; that Lovato and Flamenco were on the line at the time; and that “the cheese sauce
which has a roux, was given to the server which the server took to the guest.” She told him that 15
neither she nor Ruano were in the window at the time and that she had let Ruano know that one
of them needed to be there in the future “especially for all the tickets with allergies.” She said
she had “reminded [Lovato] that he also needs to be watching out for these mistakes.” (Jt. Exh.
3; Tr. 746, 750.)
20
Ibarra was upset when he read Guerrero’s emails, and asked if she and Ruano had talked
about “allergies/sop” during the IRD kitchen preshift lineup. Guerrero replied that they had.
Ibarra also subsequently reviewed the house manager’s May 25 notes about the mother’s report
and discussed the matter further with both Guerrero and HR Chief Kwok. All three agreed that
both Flamenco and Lovato should be disciplined for the incident. Specifically, Ibarra and 25
Guerrero agreed that Flamenco should be disciplined for failing to make the gluten-free mac and
cheese dish gluten-free; and that Lovato should be disciplined for failing to ensure that Flamenco
made the dish gluten-free. As for Kwok, as previously discussed, she incorrectly thought that
both Lovato and Flamenco had made the mac and cheese dish. (Jt. Exh. 3; Tr. 635, 638–639,
664, 703, 757–760, 773, 844, 868–871.)30
On May 29, Ibarra forwarded to Kwok both the manager’s report and Guerrero’s emails
to assist in drafting the disciplinary notices. Kwok emailed Ibarra and Guerrero a draft written
warning for Lovato later that day, stating that they could use the same draft for Flamenco by
swapping his name. Kwok also stated that, while the draft for Lovato was prepared as a written 35

24 See Guerrero’s testimony, Tr. 744–745, 749–750, 808. There are some reasons to doubt
Guerrero’s account. For example, it suggests that, despite being the IRD chef de cuisine, she did
not know or recall that the regular cheese sauce contained a roux until Lovato mentioned it. See
also fns. 21 and 23, above. However, Flamenco and Lovato failed to demonstrate a good or
consistent recollection of the short conversation or offer an alternative version of what was said.
Flamenco recalled that Guerrero had called both him and Lovato to the office that evening and
told them that the child got sick, but he could not remember whether he told Guerrero his version
of what happened or exactly what else was said (Tr. 257–258, 265). Lovato, on the other hand,
testified that he did not recall Guerrero even talking to him about the incident that evening (Tr.
208, 239). Further, there is nothing else in the record that might explain how Guerrero came to
the conclusion that the order was made with gluten-free pasta but not gluten-free sauce.
Accordingly, Guerrero’s testimony in this respect has been credited.
JD(SF)–18–19
15
warning, she would leave it up to them to decide whether to raise it to a final written warning.
(Jt. Exh. 3; R. Exh. 20; Tr. 635.)
Ibarra and Guerrero did, in fact, decide to change the draft to a final written warning for
Lovato. They presented the completed “Progressive Disciplinary Notice” to him a few days 5
later, on June 2, in Ibarra’s office. Except for substituting “final written warning,” the completed
notice was identical to that drafted by Kwok. Under “Description of Situation,” the notice
stated:
On Friday, May 25th, the Resort received a complaint in which a child of a guest 10
had been violently ill. The guest had ordered mac n cheese which was to be
gluten-free due to her Celiac disease. It was discovered that the pasta used was
gluten-free but the cheese sauce was not. The child had an allergic reaction and
began to vomit. As a chef, it is your responsibility to know all the ingredients
used in a dish and to ensure allergy requests such as gluten-free, nut-allergy, 15
dairy-allergy, are adhered to. This situation caused a child to become ill,
jeopardized her health, and the outcome could have been far worse. Based on the
severity of your actions, this documentation serves as a final written warning.
Any future infractions may result in further disciplinary action up to and including
termination.20
In addition, under “Solution–Desired Behavior/Performance,” the notice stated, “When you are
unsure of the dish and its interaction with an allergy, you can always go to another Chef to get
guidance.” Finally, the notice indicated that Lovato had not received any prior discipline for the
same offense.25
Lovato told Ibarra and Guerrero that he disagreed with the disciplinary notice. He
explained that he was busy that evening, there was a rush, and none of the managers were around
to check the food on the line. He also wrote the following on the notice under “Associate
Comments:”30
That night there was like 3 to 4 manager[s] on charge on my department, I’m
at the bottom of level—no any higher manager check[ed] this dish or
communicate[d] any extra warning about this special order.
35
However, Guerrero told Lovato that he was responsible because he was the junior sous chef and
working that day. And Lovato ultimately signed the notice. (Jt. Exh. 1; Tr. 78–79, 640, 759,
771–772.)
The same day, Ibarra and Guerrero also gave Flamenco a progressive disciplinary notice. 40
However, it was only a written warning rather than a final written warning. Other than
substituting “Cook II” for “chef,” the notice was otherwise essentially the same as the one given
to Lovato. It contained the same “Description of Situation” and “Solution—Desired Behavior/
Performance,” and likewise indicated that Flamenco had no prior discipline for the same offense.
45
JD(SF)–18–19
16
Like Lovato, Flamenco signed the disciplinary notice. However, unlike Lovato, he did
not protest, offer an explanation, or write anything under “Associate Comments.”25
c. The subsequent June 29 pineapple incident
5
The third incident involving the pineapple allergy occurred about a month later, on June
29. It was a Friday afternoon. All three IRD chefs, Guerrero, Ruano, and Lovato were working
that day. However, Guerrero testified that she was not overseeing the line or expediting at the
time, and the record does not reveal where Ruano and Lovato were or what they were doing.26
10
At about 4 pm a ticket came into the kitchen that included an order for a fruit dish
without pineapple. The ticket clearly stated that pineapple had to be omitted because the guest
had an “allergy” to it.
A Cook III-intern, Colin Lindayao, was working the cold side at the time and it was his 15
job to make the fruit dish. He did so, and a server delivered it to the room. Shortly after,
Guerrero received a report that the dish was not made without pineapple as requested.
Fortunately, however, the guest noticed that the dish contained pineapple and did not ingest it.
Guerrero subsequently spoke to Lindayao and he admitted that he saw that the guest was allergic
to pineapple but forgot to omit it when he made the dish.20
Lindayao was issued a verbal warning, the lowest level of discipline, later the same day.
Under “Description of Situation,” the disciplinary notice stated:
Colin was working in the pantry of In Room Dining kitchen at approximately 25
4 pm when a ticket was produced for a guest with an allergy to pineapple. The
ticket clearly stated allergy, Colin claimed he saw the allergy and that he forgot
when he served the fruit with the pineapple. The fruit went out to the room and
the guest actually caught the fruit before it was ingested.

25 See Jt. Exh. 4; and Tr. 642–643 (Ibarra), 773 (Guerrero). Flamenco testified that he
actually made the entire mac and cheese dish gluten-free, including the cheese sauce using cream
and cheese; that he placed it in the window on the counter separate from the other mac and
cheese dishes; and that the server must have taken the wrong order (Tr. 256–259, 268–271). He
also testified that he tried to tell Guerrero this when he was given the written warning but she
was very upset and didn’t want to hear about it (Tr. 258). However, there are several problems
with this testimony. First, there is no corroborating evidence that Flamenco prepared and
substituted the gluten-free cheese sauce on the dish. Lovato testified that he recalled seeing
Flamenco making the pasta but not the cheese sauce (Tr. 208). Second, as previously discussed,
Flamenco didn’t tell Guerrero that he prepared and substituted a gluten-free cheese sauce on the
dish when she asked him and Lovato about the order that same evening. Rather, when Lovato
mentioned that the regular cheese sauce had gluten in it, Flamenco remained silent. Third, as
indicated above, Flamenco also didn’t write any alternative version or explanation on the
disciplinary form under “Associate Comments.” Accordingly, Flamenco’s foregoing testimony
has not been credited.
26 R. Exh. 30; Tr. 793. As previously noted, the Company did not call Ruano to testify.
Lovato was never asked at the hearing if he was aware of the pineapple incident or where he was
at the time.
JD(SF)–18–19
17
Under “Solution–Desired Behavior/Performance,” the notice stated, “Colin needs to be focused
and aware of all and any food being prepared and leaving his station at all times.” The notice did
not indicate whether he had been previously disciplined for the same offense.
Lindayao signed the notice and did not write anything on it under “Associate 5
Comments.”27
2. Legal Analysis
The parties agree that the proper analytical framework for determining whether the June 10
2, 2018 final written warning to Lovato was unlawful is set forth in Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
that framework, the General Counsel must prove by a preponderance of the direct and/or
circumstantial evidence that an employee's union or protected activity was a substantial or
motivating factor for the adverse employment action. The General Counsel can make a sufficient 15
initial showing in this regard by demonstrating that the employee engaged in union or protected
activity and the employer knew or suspected it, and that the employer had animus against the
union or protected activity. If the General Counsel makes the required initial showing, the burden
shifts to the employer to establish by a preponderance of the evidence that it would have taken
the same adverse action against the employee even absent his/her union or protected activity. 20
See Shamrock Foods Co., 366 NLRB No. 117, slip op. at 26-27 (2018); East End Bus Lines,
Inc., 366 NLRB No. 180, slip op. at 1 n. 7 (2018); and American Red Cross Missouri-Illinois
Blood Services Region, 347 NLRB 347, 349 (2006), and cases cited there.
a. Lovato’s union and protected activities25
It is undisputed that Lovato participated in the following union and other activities to
improve working conditions at the resort prior to the June 2 final written warning.
Union organizing committee. Lovato began attending union meetings in the summer of 30
2017 and became a member of the union organizing committee (Tr. 57, 69 331, 392).
Public announcement of union campaign. The union organizing campaign was publicly
announced at the resort on October 19, 2017. Approximately 200 employees, union organizers,
and union members from other hotels gathered in one of the resort’s public parking lots and 35
marched, passed out union flyers, and chanted union slogans. Lovato joined the marchers and
also later attended a press conference in one of the parking lots. (CP Exhs. 5, 10; Tr. 58, 145–
146, 200, 321–322, 339–340.)

27 R. Exh. 29; Tr. 791–792. The record does not reveal whether Lindayao was a union
supporter or whether the Company knew or suspected he was. The record is also unclear
regarding who, other than Guerrero, was involved in the decision to issue him a verbal
warning. Company counsel, who introduced the evidence, never questioned Ibarra and Kwok
about the incident. As for Guerrero, she admitted that she didn’t email Ibarra about the incident
but testified that she “believe[d]” she had spoken with him about it (Tr. 825–826). She also
twice testified that “we” decided to issue the verbal warning, but she did not identify who “we”
referred to (Tr. 792).
JD(SF)–18–19
18
First delegation to meet with the resort’s president. On the same day, about 35 of the
participants, including Lovato, formed a delegation to try and meet with the resort’s president,
Terri Haack, and request that management stay neutral during the union campaign. They did not
get beyond the reception area outside Haack’s office or get to see her. However, before leaving
the building Lovato and several other employees spoke about why they were supporting the 5
campaign. (Tr. 58–63, 323–324, 345, 394–395, 499–500, 526–527.)
Press interviews and news articles. Lovato was one of only a few employees who talked
to the press about the union campaign and working conditions at the resort. And he was the only
employee still working at the resort in May 2018 who was quoted in multiple news articles. 10
Three of the articles were published on October 19, 2017, by Bloomberg, Eater Los Angeles, and
LAist. A fourth article was published on December 27, 2017 by the Los Angeles Times. (GC
Exhs. 11–14; Tr. 69, 502, 520–525.)
The Bloomberg Business article was titled, “Who’s the Boss? Union Organizers Target 15
Private Equity Owners,” and included a large picture of the resort. It described the employees’
plans to unionize and to file a class-action lawsuit against the resort alleging, among other things,
that they were unlawfully denied rest breaks and pay for overtime and the extra hour it took to
ride a company shuttle between the resort and the distant employee parking lot. The article also
discussed the Union’s plans to oppose a tax-assessment appeal by the resort and to bring the 20
employees’ grievances to the attention of the private equity firm associated with the resort’s
operating company. It included comments from the Union’s co-president and from a
management-side attorney/former NLRB Board member. It also included a prepared statement
issued by the resort stating that it strictly adhered to and abided by all labor laws. Finally, it
closed with the following comments by Lovato, the only employee identified by name and 25
quoted in the article:
“Everything looks so beautiful in front of the house, but if you go in back of the
house, where we are, it's terrible," said Terranea cook Freddy Lovato, who's
worked at the resort for nine years. With customers living it up while employees 30
toil, he said, "I always picture the 'Titanic' movie." [GC Exh. 11.]
The Eater Los Angeles article was titled “Terranea Workers Allege Wage Theft
Violations in Class Action Lawsuit,” and also included a picture of the resort. It reported that the
employees had filed a class action lawsuit against the resort alleging various wage theft 35
violations, including denial of meal and rest breaks and failure to pay for full hours worked. It
included comments by Lovato and another employee, Galen Landsberg, who was a cook II in the
resort’s Mar’sel restaurant at the time but subsequently left in March 2018, before the alleged
unlawful events here. The article quoted Lovato first, in the second paragraph of the article,
stating:40
According to Terranea employee Freddy Lovato, the kitchen is “incredibly busy
and we are regularly not permitted to take breaks.”
Like the Bloomberg story, the article also included a prepared statement from the resort45
stating that it strictly adhered to and abided by all labor laws. (GC Exh. 12.)
JD(SF)–18–19
19
The LAist article was titled, “Workers At Luxury Rancho Palos Verdes Resort Sue Over
Alleged Wage Theft Violations,” and also included a large picture of the resort. Like the Eater
Los Angeles story, the article reported on the class action lawsuit filed on behalf of resort
employees and included comments by Lovato and Landsberg. The article reported Lovato’s
comments first, in the third and fourth paragraphs of the article:5
"I am proud of the work my coworkers and I do to provide excellent service for
our guests and to make this resort successful," Freddy Lovato, a cook who works
in a kitchen preparing food for room service, the lobby bar, and Terranea's Sea
Beans cafe, said in a statement. "But behind the scenes there are problems with 10
the way we workers are being treated. And that is why I am speaking out."
Lovato alleges that the resort denies him and other workers the 10-minute rest
breaks they are legally allowed, saying, "I know the law says that we are
supposed to be able to take two ten-minute rest breaks when we work an eight-15
hour shift. But that is not the reality. The company also does not provide workers
like me with the pay it is supposed to provide when we can't take these breaks."
Like the other stories, the article also included a statement from the resort that it adhered to and
abided by all labor laws. (GC Exh. 13.)20
The subsequent December 27 LA Times article was titled, “Complaint accuses luxury
Terranea Resort of human trafficking violations, exploiting foreign interns.” It reported that the
Union had filed a complaint the previous week with the U.S. State Department on behalf of two
former cook-interns from India alleging that the resort’s use of foreign interns violated the J-1 25
cultural and educational exchange visa program and human trafficking and labor laws. The
article included comments by the former interns and the Union’s attorney. It also included the
following comments by Lovato, the only current employee identified and quoted in the article:
Lead cook Freddy Lovato, 45, said he noticed when interns began filling full-time30
entry-level cook positions. Now, he estimates that interns fill at least 60% of those
positions overall.
Lovato works in the room service kitchen, where he met [the two foreign interns].
He has 20 years cooking experience and has been with Terranea since it opened in 35
2009.
He said the interns' lack of experience and training can make his job more
difficult, especially because they leave just as they're getting better. "We train
them fast because we also have our own duties," he said.40
Finally, the article also included a statement from the resort’s spokeswoman that the allegations
were “baseless.” (GC Exh. 14.)
Delegation to the HR Office. On November 28, 2017, Lovato participated in a delegation 45
of about 5–10 employees on the union organizing committee that went to the HR office during a
break to ask for their personnel files. The receptionist told them they had to each fill out and
JD(SF)–18–19
20
sign a “Request to Inspect Personnel Records” form. Lovado did so and then returned to work.
(GC Exh. 10; Tr. 64–66, 397.)
Second delegation to meet with the resort’s president. On March 17, 2018, Lovato
participated in a delegation of a few employees on the union organizing committee that went to 5
the HR office to schedule an appointment to meet with President Haack. They wanted to speak
to Haack because they had heard she was meeting with the CEO of another hotel where there
was likewise a union campaign underway. Kei Eusebio, a senior HR manager, informed them
that Haack was not available. A few days later, on March 20, Eusebio approached Lovato in the
kitchen and asked if the group would meet with Haack that evening. However, the other 10
members of the delegation were not present, so the meeting did not occur. (GC Exh. 18; Tr. 66–
68, 398.).
Delegation to City Hall. On May 2, 2018, a union delegation went to the Rancho Palos
Verdes city hall to deliver several thousand signatures that had been collected on a petition. The 15
petition called for a local ballot initiative to enact an ordinance requiring large hospitality
employers in the city such as Terranea to pay employees a $15/hour minimum wage and to
provide panic buttons for those working in housekeeping or other isolated areas. Although the
delegation included a number of union organizers and activists, Lovato was the only Terranea
employee in the group. Unlike other union supporters, he was off work that day. (GC Exh. 15; 20
Tr. 68–70, 513–515.)
The General Counsel’s complaint alleges that all of Lovato’s foregoing activities between
mid-October 2017 and early May 2018 constituted protected concerted activities under the Act.
And Board precedent supports the allegations. See North West Rural Electric Cooperative, 366 25
NLRB No. 132, slip op. at 1 n. 1, and 12–15 (2018); Allstate Insurance Co., 332 NLRB 759 n.3,
767 (2000); Alaska Pulp Corp., 296 NLRB 1260 (1989), enfd. 944 F.2d 909 (9th Cir. 1991); and
Roure Bertrand Dupont, Inc., 271 NLRB 443, 444, 448–449 (1984), and cases cited there.
Further, the Company’s posthearing brief does not argue otherwise, i.e., it does not contend that
any of Lovato’s foregoing activities were not concerted or protected under the Act or that Lovato30
said or did anything in particular during those activities that exceeded the bounds of protected
conduct.28
b. The Company’s knowledge or suspicion
of Lovato’s union and protected activities35
Chef de Cuisine Guerrero and HR Chief Kwok admitted that they knew Lovato supported
the Union prior to issuing him the final written warning. Both testified that they either saw him
or were aware that he was with the other union supporters on October 19, 2017.29 Kwok also
40

28 In its answer to the complaint, the Company stated that it “lack[ed] sufficient information
to admit or deny the allegations,” which operated as a denial under Sec. 102.20 of the Board’s
Rules. However, the Company certainly had sufficient information by the end of the hearing to
dispute the allegations, yet as indicated above it did not do so in its posthearing brief.
29 Tr. 786, 814, 820, 851–852. Indeed, Kwok demonstrated an impressive knowledge and
memory of who participated in the October 19 demonstration and/or supported the Union. See
Tr. 853–858 (identifying by name 15 such individuals who were still employed at the resort).
JD(SF)–18–19
21
testified that she read the December 2017 LA Times article quoting Lovato regarding the resort’s
use of foreign interns, and that the other three October 2017 articles quoting Lovato were
likewise circulated to the Leadership Group, including President Haack and Executive Chef
Ibarra, and discussed at their weekly senior management meetings (Tr. 876, 879–881). In
addition, as the head of HR, Kwok likely would have been aware of Lovato’s documented visits 5
to the HR office with other union supporters in November 2017 and March 2018 to obtain the
personnel files of the union organizing committee members and to schedule a meeting with
Haack.30 And Kwok did not specifically deny that she was aware that Lovato went to City Hall
with the Union on May 2, 2018 to deliver the petition for the ballot initiative. See Tr. 852 (“Q
[by company counsel]. “[W]ere you aware that Mr. Lovato went to City Hall? He spoke about a 10
ballot ordinance.” A. I don’t believe I was aware of him speaking.”).31 See also GC Exh. 15
(series of emails between city officials and Haack in February, March, April, and early May
2018 indicating that the city officials and others were keeping Haack informed about the Union’s
petition drive and that Haack was also informed when the petition was delivered to City Hall on
May 2).3215
As for Executive Chef Ibarra, he was initially evasive and inconsistent when asked
whether he knew Lovato participated in the October 2017 demonstration and supported the
union. See Tr. 643 (“Q [by company counsel]. [A]t the time of [the mac and cheese incident], did
you know that Mr. Lovato was a supporter of the Union? A. You know no. And I knew he had 20
sympathetic views. I don’t talk to anybody about that. That never came to me. I don’t know
who’s pro except for Mr. Santos.33 That’s the only one I knew.” . . . Q. Okay. Did you ever see
whether [Lovato] participated in any of the demonstrations the Union conducted? A. I re – I
might have, yeah. I might have, yeah. Yeah. Yeah.”).34 However, like Kwok, Ibarra admitted on
cross-examination that the October and December 2017 news articles quoting Lovato were 25
emailed to him and others in the Leadership Group. He also admitted that he read at least some
of the articles, including those about the class-action wage and hour lawsuit and the J-1 cook-

30 After Kwok admitted that she was aware that Lovato participated in the October 19, 2017
march, company counsel vaguely asked if she was also aware whether Lovato had participated in
“other delegations” (Tr. 852). Kwok testified she was not. However, counsel did not
specifically ask Kwok if she was aware of Lovato’s visits to the HR office in November 2017
and March 2018. And as discussed, infra, Kwok subsequently admitted, at least implicitly, that
she was aware that Lovato went to City Hall with the Union in early May 2018 to deliver the
petition for the ballot initiative.
31 Kwok’s belief was correct; Lovato was present but did not speak when the petition was
delivered to City Hall (Tr. 69–70).
32 The Company did not call Haack to testify.
33 As previously discussed, Francisco Santos was a junior sous chef in the banquet kitchen.
Like Lovato, he was one of the most active union supporters (Tr. 525).
34 Both Lovato and former Cook II Landsberg credibly testified that they saw Ibarra outside
watching the marchers. Lovato also credibly testified that he saw someone he identified as a
manager taking photos or filming the smaller delegation when it was inside the office reception
area, and that he later saw the manager apparently showing the photos or video to Ibarra outside.
(Tr. 61–63, 137, 324.)
JD(SF)–18–19
22
interns. Finally, he also admitted that the union campaign and related activities were discussed
among the Leadership Group at weekly senior management meetings. (Tr. 673–678, 721).
The foregoing direct and circumstantial evidence is sufficient to establish that the
Company—including specifically Haack (the highest-ranking onsite manager) and Kwok, Ibarra, 5
and Guerrero (the three managers admittedly involved in disciplining Lovato)35—knew or
suspected that Lovato engaged in the union and other protected concerted activities described
above and was one of the most active union supporters.
c. The Company’s animus against the union and protected activities10
Within a few weeks after the union organizing campaign was announced, the Company
began holding a series of mandatory antiunion meetings with employees in each kitchen or
department. Senior company managers, including President Haack, expressed strong opposition
to the union at the meetings. (Tr. 310, 328–329, 430.) Indeed, Haack told the banquet kitchen 15
employees at one such meeting in March or April 2018 that the Union would get in “over my
dead body.”36 The Board has held that such a statement by a high-level manager constitutes an
unlawful threat of futility in violation of Section 8(a)(1) of the Act and demonstrates an
employer’s union animus. See Montgomery Ward & Co., 316 NLRB 1248, 1249, 1255 (1995),
enfd. per curiam 97 F.3d 1148 (4th Cir. 1996); and South Nassau Communities Hospital, 262 20
NLRB 1166, 1175 (1982).37

35 There is no apparent dispute, and the record as a whole establishes, that all four are
supervisors and/or agents of the Company as defined in Section 2(11) and (13) of the Act.
36 See Santos’s testimony, Tr. 429–431. With respect to the timing of the meeting, see also
Santos’s testimony regarding his prior March 2018 trip to Pennsylvania with a union delegation
to meet with the resort’s investors (Tr. 400). Although Santos’s testimony regarding Haack’s
statement was not corroborated by other banquet kitchen employees (none were called to testify
by the General Counsel or the Union), it was credible on its face and was not controverted by
Haack (who as noted above was not called to testify by the Company) or any other company
witness. Nor does the Company’s posthearing brief argue that it should be discredited or
discounted. While the brief argues that Santos was a biased witness (citing his admission that the
Union paid for his flight and hotel when he joined the union delegation to Pennsylvania), it does
so only with respect to his testimony about poor safety and health practices in the banquet
kitchen. See Br. at 38 n. 19. Further, it repeatedly cites and relies on Santos’s testimony as
support for the Company’s positions on other significant matters. See Br. at 8, 20–26.
37 Haack’s March/April 2018 statement is not alleged as an unfair labor practice in the
Union’s charges or the General Counsel’s complaint. However, this did not preclude the Union
from presenting testimony about Haack’s unlawful statement as additional evidence of the
Company’s antiunion animus and discriminatory motive for disciplining and discharging Lovato.
See, e.g., NLRB v. RELCO Locomotives, Inc., 734 F.3d 764 (8th Cir. 2013); and NLRB v. Wright
Line, 662 F.2d 899, 907 n. 14 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See also CSC
Holding, LLC, 365 NLRB No. 68, slip op. at 4 (2017); and Wilmington Fabricators, 332 NLRB
57 n. 6 (2000). Indeed, as noted in RELCO and Wright Line, the Board has consistently held that
antiunion statements may be relied on as background evidence of animus even if they were not
unlawful. Further, the Company was given adequate notice that the Union would be presenting
such evidence. Union counsel said so in his opening statement (Tr. 20–22). And there was
further discussion about the matter in response to company counsel’s evidentiary objection early
JD(SF)–18–19
23
Haack also expressed strong opposition to the Union’s ballot initiative for a $15
minimum wage and panic buttons. She even contacted the mayor and other city officials in April
2018 and asked if they could stop the Union and its supporters from soliciting city residents to
sign the petition at a local public event (Whale of the Day Festival) that was being held about a
mile from the resort. (The city officials responded that they were unable to do so.) See GC Exh. 5
15. Cf. Chelsea Homes, 298 NLRB 813 n. 2 (1990); and Gainesville Mfg. Co., 271 NLRB 1186,
1188 (1984) (an employer violates Section 8(a)(1) of the Act by calling the police to prevent
union supporters from engaging in handbilling on public property). Thus, the evidence
establishes that the Company likewise had animus against that activity. Cf. Pacific Beach Hotel.,
361 NLRB 709, 746, 752 (2014) (employer’s animus was demonstrated by its numerous unfair 10
labor practices, including attempting to prevent a union organizer from handbilling on a public
sidewalk).
Although there is no evidence that Haack was directly involved in issuing the June 2,
2018 final written warning to Lovato, this makes no difference. As indicated above, both Ibarra 15
and Kwok admitted that the union campaign was discussed at weekly senior management
meetings. Ibarra also admitted that Haack repeatedly expressed her unhappiness about and
opposition to the union campaign at the meetings (Tr. 676–678, 721). Further, as indicated
above, Haack was the highest onsite manager of the resort and clearly spoke and acted on behalf
the Company. See Parsippany Hotel Management Co. v. NLRB, 99 F.3d 413, 423–424 (D.C. Cir. 20
1996). It may reasonably and appropriately be inferred that other managers such as Ibarra,
Kwok, and Chef de Cuisine Guerrero acted consistent with the Company’s position or view. See
NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 782 (6th Cir. 2013) (CEO’s open hostility
towards unions could reasonably be imputed to other senior managers); and Spurlino Materials,
LLC v. NLRB, 645 F.3d 870, 878 n. 7 (7th Cir. 2011) (rejecting employer’s argument that 25
General Counsel failed to prove an 8(a)(3) discriminatory dispatching violation because the
evidence only established that the general manager had animus and not the dispatchers).

on the second day of hearing, followed by a ruling that such evidence was clearly relevant and
admissible (Tr. 311–319).
The Union also introduced documentary evidence of unalleged statements Haack made in
posted letters to employees in 2018 and 2019 regarding the Union’s campaign for a consumer
boycott of the resort. CP Exhs. 7–9. See also, with respect to the boycott campaign, a March 23,
2018 company “union activity” report, CP Exh. 10 (three demonstrators, including one
employee, handed out flyers to incoming vehicles and chanted “No respect, No peace. Don’t
check in. Check out. Shame on you, for staying here, shame on you”); and Tr. 347, 580. It also
presented uncontroverted evidence of unalleged antiunion conduct by other resort managers and
security guards (e.g., surveilling employees engaged in prounion activity, telling employees not
to talk about the union at work, and prohibiting off-duty employees from handbilling around the
resort), at least some of which was included in prior union charges and settled pursuant to a
nonadmission informal settlement agreement (CP Exh. 10; Tr. 310–311, 321–326). See St.
Mary’s Nursing Home, 342 NLRB 979, 979–980 (2004), affd. 240 Fed. Appx. 8 (6th Cir. 2007),
and cases cited there (presettlement conduct may be used to show animus and a discriminatory
motive in a subsequent case, regardless of whether the settlement reserved the right to do so).
However, it is unnecessary to address this additional evidence given the other direct and
circumstantial evidence of the Company’s animus and discriminatory motive discussed above.
JD(SF)–18–19
24
d. Circumstantial evidence of the Company’s
animus and discriminatory motive
There is also abundant circumstantial evidence of the Company’s animus and
discriminatory motive.5
Cursory investigation. An employer’s cursory investigation or failure to seek an
explanation from an employee before issuing discipline may support an inference of animus and
discriminatory motive. See, e.g., Shamrock Foods, 366 NLRB No. 117, slip op. at 28 (2018);
and Golden State Foods Corp., 340 NLRB 382, 385 (2003). See also CC1 Ltd. Partnership v. 10
NLRB, 898 F.3d 26, 33 (D.C. Cir. 2018). Here, as discussed above, Guerrero’s investigation
lasted only about 30–45 seconds and consisted of looking at the room service ticket and asking
Flamenco and Lovato only two questions: 1) whether Flamenco had used gluten-free pasta, and
2) what else could have caused the guest’s reaction. And while their responses indicated to
Guerrero that Flamenco had failed to substitute a gluten-free sauce, she never inquired or 15
investigated how busy Lovato was at the time or whether there were any other circumstances that
would explain why he did not see or ask whether Flamenco substituted a gluten-free sauce. Nor
did Ibarra. It was not until after they issued the final written warning to Lovato that he was given
an opportunity to explain, and his explanation (that it was busy that evening, there was a rush,
and none of the kitchen or room service managers were around to help check the food on the 20
line) was summarily rejected.
Failure to apply progressive discipline. An employer’s failure to apply its progressive
disciplinary system may also support an inference of animus and discriminatory motive. See,
e.g., Aliante Casino & Hotel, 364 NLRB No. 78, slip op. at 1, 13 (2016); and E.R. Carpenter 25
Co., Inc., 306 NLRB 878, 881 (1992). See also Fort Dearborn Co. v. NLRB, 827 F.3d 1067,
1075–1076 (D.C. Cir. 2016). Here, as indicated above, the Company had a multi-step
progressive disciplinary system, including, in order of severity, verbal warning, written warning,
final written warning, and termination.38 Yet, the Company immediately issued Lovato a final
written warning, bypassing the two previous steps, even though he had no prior discipline on his 30
record at the time. The only time he had been disciplined was a verbal warning he received 6
years earlier, in 2012, for failing to take a break on time, and that discipline was expunged from
his record 6 months later (Tr. 30).
When asked by company counsel why Lovato was immediately issued a final written 35
warning, Ibarra testified it was because “we almost killed somebody,” and that he wanted to send
“a strong enough message to make Lovato realize that we almost killed someone” (Tr. 638, 665).
Guerrero similarly emphasized the severity of the incident, stating:
It was something so—such a careless mistake, and the severity of it was—it was 40
intense. I mean, a child got sick and it was for something that—I mean, it was
just—it's just so easy. It's right there. You make the cheese sauce and you know
what's in there, and then you sold it. You knew—I mean, he knew that he was
selling something that was gluten-free; he made a separate pasta for it, but yet
then put the cheese—like, it was just indescribable. Just felt very careless.45

38 See, e.g., Jt. Exh. 1; R. Exh. 31, p. 31; and Tr. 837. Suspension is also a listed option on
the progressive disciplinary form.
JD(SF)–18–19
25
(Tr. 759). However, it was the prior pizza incident, not the mac and cheese incident, where the
guest reportedly almost died. Further, it was not Lovato who made “such a careless mistake” in
preparing the mac and cheese dish, but Flamenco. And Guerrero knew it, both because it was
Flamenco’s job to do so where he was stationed and because Flamenco told her he did so when
she asked him that evening.395
As for HR Chief Kwok, she testified generally that there are times when the Company
will bypass the progressive disciplinary system (Tr. 837). However, she did not provide any
concrete or comparable examples. Nor were any such examples otherwise offered into evidence.
Although the Company introduced 10 final written warnings issued to other resort employees in10
2016, 2017, and 2018 (R. Exh. 37; Tr. 829), none of them involved cooks or other kitchen
workers. Further, one of the notices indicated that the employee had received prior discipline for
the same offense, another did not indicate one way or the other, and none of them indicated
whether, like Lovato, the employees had no prior discipline on their record for any offense.
15
Disparate treatment. An employer’s disparate treatment of union supporters may
likewise support an inference of animus and discriminatory motive. See Shamrock Foods Co.,
366 NLRB No. 107, slip op. at 1 n. 1 (2018); and Cayuga Medical Center at Ithaca, Inc., 367
NLRB No. 21, slip op. at 32–35 (2018), and cases cited there. See also Fort Dearborn, 827 F.3d
at 1075–1076. Here, as discussed above, Lovato was issued more severe discipline than 20
Flamenco, who was not a union supporter, even though Ibarra and Guerrero knew that Flamenco
was the one who made the mac and cheese dish.
Ibarra and Guerrero testified that they decided to issue Lovato more severe discipline
because he was a junior sous chef whereas Flamenco was a cook II, and he was responsible for 25
making sure the cooks performed their job properly (Tr. 638–692, 773). However, as discussed
above, Flamenco was an experienced cook II who had worked with Lovato on the hot side for
years, helped train the newer cooks, and made gluten-free dishes every day. And the Company
had never before disciplined a junior sous chef for failing to ensure that the cooks or other
kitchen employees performed their work properly. 30
Further, the record indicates that no one, neither cook nor chef, was disciplined following
the pizza incident just a week earlier, even though the guest was transported to the hospital and

39 See also Tr. 760 (admitting she believed it was Flamenco who made the mac and cheese);
and R. Br. 35 n. 18 (“Ibarra and Guerrero made the final decision and knew very well that
Flamenco likely cooked the dish.”). Moreover, as noted above, Guerrero herself apparently did
not know or recall at the time that the cheese sauce had gluten in it. Incredibly, she also testified
that the IRD kitchen did not even offer or make a gluten-free cheese sauce; that the cooks had to
use olive oil or butter on the gluten-free pasta instead (Tr. 825). However, both Lovato and
Flamenco testified otherwise. And Ibarra, who was exempt from the sequestration order and
heard their testimony, did not contradict it when he was subsequently called by the Company to
testify. See Tr. 722–723. Further, the IRD menu allergen chart, which room service used when
taking orders, indicated that dairy could not be omitted from the mac and cheese dish. Thus,
Guerrero’s testimony that olive oil could be substituted for cheese on a mac and cheese was also
contrary to the documentary evidence. Finally, a “mac and cheese” without cheese would be no
mac and cheese at all.
JD(SF)–18–19
26
reportedly almost died, and even though, as found above, Ibarra believed the IRD kitchen had
failed to follow the proper procedures to avoid cross-contamination.40
Finally, while an IRD cook was disciplined several weeks later for failing to make a fruit
dish pineapple-free as ordered by a guest with a pineapple allergy, he was only issued a verbal 5
warning. Guerrero testified that the lowest level of discipline was issued because he was just a
cook III-intern, and “it’s our job to guide and lead and teach” (Tr. 792). However, the incident
plainly had nothing to do with a lack of guidance or training. Guerrero testified that, like other
cooks, the cook III-interns had recently been instructed during preshift lineups regarding the
standard operating procedures for preparing allergen-free orders (Tr. 826). And the cook III-10
intern who made the dish admitted to Guerrero that he simply forgot to omit the pineapple.41
False or misleading testimony. False or misleading testimony regarding the relevant
facts and circumstances may also support an inference of animus and discriminatory motive. See
Shamrock Foods, 366 NLRB No. 117, slip op. at 27–28 (2018); and Airgas USA, LLC, 366 15
NLRB No. 104, slip op. at 3 (2018), enfd. 916 F.3d 555 (6th Cir. 2019), and cases cited there.
Here, as discussed above, Ibarra was both evasive and inconsistent when asked if he knew
Lovato was a union supporter. Further, both he and Guerrero exaggerated the seriousness of the
mac and cheese incident and Lovato’s role in it when asked why they had issued him the final
written warning. See also fns. 21 (discrediting Guerrero’s and Ibarra’s testimony about the 20
comparable pizza incident) and 23 (discrediting Guerrero’s testimony about when the mac and
cheese incident occurred and how busy the kitchen was at the time).
In sum, the General Counsel and the Union presented a strong prima facie case that the
Company harbored animus against the union and protected concerted activities and seized upon 25
the mac and cheese incident as a pretext to issue a final written warning to Lovato and thereby
create the foundation to rid itself of one of the Union’s most active and outspoken supporters.

40 Disciplining a cook or a manager following the pizza incident would not necessarily have
increased the Company’s risk of legal liability to the guest. Any such discipline likely would
have been excluded from evidence in the legal proceeding, and thus could not have been used
against the Company, on the ground that it constituted a subsequent remedial measure under Cal.
Evid. Code § 1151, the equivalent of FRE 407. See Fox v. Kramer, 22 Cal.4th 531, 545, 93
Cal.Rptr.2d 497, 994 P.2d 343 (2000). See also IVC US, Inc. v. Kinden Bulk Transportation SW,
LLC, 2017 WL 5203055, at *9 (N.D. Ga. April 4, 2017); Al-Turki v. Robinson, 2015 WL
6464411, at *12 (D. Colo. Oct. 27, 2015); and Mahnke v. Washington Metropolitan Area Transit
Authority, 821 F.Supp.2d 125, 151–152 (D.D.C. 2011), and cases cited there.
41 As previously discussed, unlike with the pizza and mac and cheese incidents, the guest
caught the cook’s mistake and did not ingest the pineapple. And HR Chief Kwok testified that
she would consider whether anyone was injured in evaluating the level of discipline (Tr. 836–
837). However, unlike with the mac and cheese incident, there is no evidence that Guerrero
consulted Kwok with respect to the pineapple incident. See also Tr. 833, 839 (not all
disciplinary matters go through HR; managers have the ability to issue discipline without
consulting HR).
JD(SF)–18–19
27
e. The Company’s defenses
The Company argues that the foregoing evidence fails to prove the alleged violation
primarily for three reasons: 1) because Lovato was not given the final written warning for the
mac and cheese incident until over 7 months after he revealed that he was a union supporter at 5
the October 19, 2017 demonstration; 2) because two other known union supporters who likewise
participated in the demonstration (Santos and Marta Castro) were given a more favorable
performance evaluation just 2 weeks later and they and many others remain employed at the
resort;42 and 3) because Ibarra and Guerrero had an honest belief that Lovato was responsible for
failing to ensure that Flamenco made the mac and cheese gluten-free. 10
The Company’s first argument might have some force if Lovato had not engaged in any
further open union or other protected concerted activities after October 19, 2017. See, e.g.,
Consolidated Biscuit Co., 346 NLRB 1175, 1180 (2006) (timing of employee’s termination, 5
months after he last engaged in protected activity, did not support an inference of unlawful 15
motive). However, as discussed above, the record shows that Lovato continued to openly engage
in a variety of union and protected activities up until shortly before the final written warning, and
that the Company knew or suspected that he engaged in those activities and harbored strong
animus toward such activities. Further, there is substantial other circumstantial evidence of the
Company’s discriminatory motive.4320
The Company’s second argument also fails. The Board has repeatedly held that an
otherwise well-supported showing of discriminatory motivation is not disproved by the fact that
the employer did not take similar actions against all known union supporters. See Fresh &
Green’s of Washington, D.C., LLC, 361 NLRB No. 35, slip op. at 1 n. 1 (2014); Volair 25
Contractors, Inc., 341 NLRB 673, 676 n. 17 (2004); and George A. Tomasso Construction
Corp., 316 NLRB 738, 742 (1995), and cases cited there.
The Company’s third “honest belief” argument likewise provides no defense under the
circumstances. See Fort Dearborn, 827 F.3d at 1076 (“A good-faith belief . . . is of little aid to 30
an employer where the discipline imposed by the company departs from its policy or practice.”).
See also Aston Waikiki Beach Hotel, 367 NLRB No. 27, slip op. at 8 (2018), and cases cited
there (where the General Counsel establishes that the employer’s cited reason for the adverse
action was pretextual, the employer by definition cannot meet its burden of showing that it would
have taken the same action even absent the employee’s union or protected activity).35
Accordingly, a preponderance of the credible evidence establishes that the June 2 final
written warning violated both Section 8(a)(1) and Section 8(a)(3) of the Act as alleged.
40

42 See R. Exhs. 11, 40; and Tr. 466, 853–858, 861–862.
43 The Company’s posthearing brief also argues (p. 31) that the fact Lovato was not
disciplined for the prior pizza incident shows that it was not trying to punish Lovato for his union
or other protected activities. However, this argument merely perpetuates the fiction created by
Guerrero’s false hearing testimony that Lovato might have made the pizza. See fn. 21, supra.
JD(SF)–18–19
28
B. The August 13 Termination
(The Chicken Wings Incident)
1. Factual background
5
The subsequent chicken wings incident occurred about 2 months later, on August 8. It
was a Wednesday, early in the evening, and the kitchen was again very busy. Lovato was
working the hot side as usual. Guerrero was expediting at the window.
At about 5:30 pm, Lovato was tossing a large batch of about 50 fried chicken wings in 10
buffalo sauce for an order from the Lobby Bar when Guerrero informed him that the guests had
changed their mind and wanted barbeque sauce. So he started washing the buffalo sauce off with
water. It was common for cooks to wash off other proteins when the wrong sauce had been used
and Guerrero had a general practice of trying to save proteins as they were relatively costly and
she and other chefs de cuisine received bonuses for keeping costs down. Further, he didn’t think 15
the guests would notice since the sauces contained similar ingredients. His plan was therefore to
wash the buffalo sauce off, warm the wings back up in the fryer, and then toss them in the
barbeque sauce.
However, when Guerrero saw what Lovato was doing, she told him to “get rid of” them20
and use fresh wings instead. She felt it was inappropriate to rinse and reuse the wings because
they had breading on them that would absorb the water. Lovato therefore warmed up a fresh
batch of 50 wings in the fryer (the wings were already fully cooked). However, he did not throw
out the rinsed wings. He frequently provided leftover food to the overnight cook to use in
making meals for the employees on the overnight shift, and he decided to do the same with the 25
wings. So he put them in a large bowl and placed them on a shelf in the walk-in cooler. He left
the bowl uncovered because he couldn’t find the plastic wrap and the wings were still a little
warm. He planned to cover it later when he had a free moment.
However, about 30 minutes later, Guerrero went into the cooler and noticed the 30
uncovered bowl of wings. She touched them and realized that they were the same rinsed wings
that she had told Lovato to get rid of. She took a picture of the wings to document it. She then
went out and asked Lovato if they were the same wings. Lovato admitted that they were.
Guerrero therefore immediately threw them in the trash. (R. Exh. 28; Tr. 88–94, 113–114, 219–
221, 241, 301–304, 405–407, 473, 685–687, 715, 779–780, 811–812.)35
The following afternoon, August 9, Guerrero sent an email to Ibarra describing what had
occurred, both that Lovato had tried to rinse and reuse the wings and that he had subsequently
put them in the cooler rather than get rid of them as she had instructed. Guerrero told Ibarra that
the water “would have soaked into the breading and the wings and probably would have diluted 40
the flavor of the chicken.” She also said the amount of moisture in the wings could have made it
“dangerous” to put them back in the fryer. But she said she was “more bothered that [Lovato]
would alter the integrity of the product to save them from being thrown away.” (R. Exh. 27.)
Ibarra and Guerrero subsequently discussed the matter with HR Chief Kwok, and all 45
three agreed that Lovato should be terminated given his prior final written warning for the mac
and cheese incident. Kwok therefore drafted a termination notice. The notice stated that Lovato
had compromised the integrity of the food by trying to reuse the wings; that he had also violated
JD(SF)–18–19
29
health code standards by both trying to reuse the wings and placing them uncovered in the walk-
in cooler; that he could have also jeopardized the safety of himself and his colleagues by refrying
the rinsed wings (“refrying the wings could have caused [a] potential oil explosion”); and that he
had also been insubordinate in violation of the employee rules of conduct by putting the rinsed
wings in the cooler rather than getting rid of them as requested. The notice also referenced the 5
prior final written warning that he had been issued for the mac and cheese incident and indicated
that he had previously been disciplined for the same offense.44
Ibarra and Guerrero presented the termination notice to Lovato on August 13. Guerrero
asked Lovato if he remembered the chicken wings incident and told him he was being terminated 10
for it. Lovato, however, was taken by surprise as the incident had occurred 5 days earlier and no
one had ever talked to him about it. He therefore refused to sign the notice, stating that he
believed management was targeting him because of his union activity. (Tr. 84–85, 236, 652,
725.)
15
2. Legal Analysis
As discussed above, the General Counsel and the Union presented a strong prima facie
case that the Company knew or suspected that Lovato was one of the most active and outspoken
union supporters, that it had animus against the union and protected concerted activity, and that it 20
was motivated by that animus when it issued the June 2 final written warning to Lovato for the
mac and cheese incident. The same evidence and circumstances establish a strong prima facie
case with respect to Lovato’s August 13 termination following the chicken wings incident.
Further, the Company’s failure again to interview Lovato about the incident or offer him an
opportunity to explain his actions provides additional circumstantial evidence of its 25
discriminatory motive for the termination.45
Moreover, Ibarra and Guerrero both acknowledged that the chicken wings incident would
not have warranted termination but for the prior final written warning for the mac and cheese
incident (Tr. 651, 784). Accordingly, as the final written warning was unlawful, so necessarily 30
was the termination. See Care Manor of Farmington, Inc., 318 NLRB 725, 726 (1995); and
Dynamics Corp., 296 NLRB 1252, 1254 (1989), enfd. 928 F.2d 609 (2d Cir. 1991). See also
RELCO Locomotives, 734 F.3d at 787 (“An adverse employment decision is unlawful if it relies
upon and results from a previous unlawful action.”).
35

44 Jt. Exh. 2; Tr. 651, 784, 850–851. Kwok testified that Lovato’s prior discipline for the mac
and cheese incident was the same offense because it likewise involved a “food handling
violation.” Tr. 850.
45 The General Counsel and the Union also presented evidence that it was common to
temporarily leave food uncovered in the cooler during busy periods and that management failed
to remedy health and safety issues or problems when they were reported by kitchen staff. See
Tr. 96–112, 226–227, 242–243, 412–429, 467–472; and CP Exh. 1–3, 6. Although the evidence
was credible, it is unnecessary to address whether it also shows disparate treatment of Lovato
given the other substantial evidence of the Company’s unlawful motivation discussed above and
the Company’s admitted reliance on the prior unlawful final written warning as support for the
termination.
JD(SF)–18–19
30
Accordingly, a preponderance of the evidence establishes that the August 13 termination
violated both Section 8(a)(1) and Section 8(a)(3) of the Act as alleged.
CONCLUSIONS OF LAW
5
1. The Company engaged in unfair labor practices in violation of both Section 8(a)(1) and
Section 8(a)(3) of the Act by issuing Lovato a final written warning on June 2, 2018 because he
engaged in union and other protected concerted activities and to discourage employees from
engaging in such activities.
10
2. The Company likewise engaged in unfair labor practices in violation of both Section
8(a)(1) and Section 8(a)(3) of the Act by terminating Lovato on August 13, 2018 because he
engaged in union and other protected concerted activities and to discourage employees from
engaging in such activities.
15
3. The Company’s unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
20
The appropriate remedy for the violations found is an order requiring the Company to
cease and desist from its unlawful conduct and to take certain affirmative action. Specifically,
the Company must offer Lovato full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to his seniority or any other rights
or privileges previously enjoyed. The Company must also make Lovato whole for any loss of 25
earnings and other benefits suffered as a result of the unlawful termination of his employment on
August 13, 2018. Backpay shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest compounded daily as prescribed in New Horizons, 283 NLRB
1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010).
30
In addition, the Company must compensate Lovato for any adverse tax consequences of
receiving a lump-sum backpay award, and file with the Regional Director a report allocating the
backpay award to the appropriate calendar years. See AdvoServ of New Jersey, Inc., 363 NLRB
No. 143 (2016).
35
The Company must also compensate Lovato for his search-for-work and interim
employment expenses, regardless of whether those expenses exceed interim earnings. See King
Soopers, Inc., 364 NLRB No. 93 (2016). The search-for-work and interim employment expenses
shall be calculated separately from taxable net backpay, with interest compounded daily as
prescribed in New Horizons, supra, and Kentucky River Medical Center, supra.40
Further, the Company must remove from its files any references to the unlawful June 2,
2018 final written warning and August 13, 2018 termination, and notify Lovato in writing that
this has been done and that those actions will not be used against him in any way.
45
JD(SF)–18–19
31
Finally, as the record indicates that Spanish is the primary language of some of the
Company’s employees,46 the Company must post a notice to employees in both English and
Spanish notifying them of their rights under the Act and the Board’s decision and order.
ORDER475
The Respondent, DH Long Point Management LLC, its officers, agents, successors, and
assigns, shall
1. Cease and desist from10
(a) Disciplining or discharging employees because of their union or other protected
concerted activities.
(b) In any like or related manner restraining or coercing employees in the exercise of 15
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 the Board’s order, offer Freddy Lovato full 20
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Lovato whole for any loss of earnings and benefits suffered as a result of the
August 13, 2018 discriminatory termination of his employment, in the manner set forth in the 25
remedy section above.
(c) Make Lovato whole for his reasonable search-for-work and interim employment
expenses, in the manner set forth in the remedy section above.
30
(d) Compensate Lovato for the adverse tax consequences, if any, of receiving a lump-
sum backpay award, and file with the Regional Director for Region 31, within 21 days of the
date the amount of backpay is fixed, either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year.
35
(e) 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
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 due under the terms of the Board’s 40
order.

46 Flamenco testified through a Spanish-language interpreter.
47 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules, the findings,
conclusions, and recommended Order will be adopted by the Board and all objections to them
will be deemed waived for all purposes as provided by Section 102.48 of the Board’s Rules.
JD(SF)–18–19
32
(f) Within 14 days of the date of the Board’s order, remove from its files any reference
to the unlawful June 2, 2018 final written warning issued to Lovato and the August 13, 2018
termination of his employment, and within 3 days thereafter, notify him in writing that this has
been done and that those actions will not be used against him in any way.
5
(g) Within 14 days after service by the Region, post at its facility in Rancho Palos
Verdes, California copies of the attached notice marked “Appendix.”48 Copies of the notice, on
forms provided by the Regional Director for Region 31, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 10
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 15
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 June
2, 2018.
20
(h) 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.
Dated, Washington, D.C., June 21, 201925

Jeffrey D. Wedekind
Administrative Law Judge

48 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.”
Q i'''``'4
JD(SF)–18–19
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discipline, discharge, or otherwise discriminate against you because you
support UNITE HERE Local 11 or any other union or engage in other protected concerted
activities for your mutual aid and protection.
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 from the date of the Board’s order, offer Freddy Lovato full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Lovato whole for any loss of earnings and benefits suffered as a result of our
unlawful termination of his employment on August 13, 2018.
WE WILL also make Lovato whole for his reasonable search-for-work and interim employment
expenses.
WE WILL also compensate Lovato for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Board’s Regional Director a report allocating the
backpay award to the appropriate calendar year.
WE WILL also remove from our files any reference to the unlawful June 2, 2018 final written
warning issued to Lovato and the August 13, 2018 termination of his employment, and notify
him in writing that this has been done and that those actions will not be used against him in any
way.
JD(SF)–18–19
DH LONG POINT MANAGEMENT LLC
(Employer)
Dated By
(Representative) (Title)
The Administrative Law Judge's decision can be found at www.nlrb.gov/case/31-CA-226377 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
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.
11150 West Olympic Boulevard, Suite 700, Los Angeles, CA 90064-1824
(310) 235-7352, Hours: 8:30 a.m. to 5 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, (310) 235-7424.