Hotel Del Coronado

National Labor Relations Board - Board Decisions

Aug 26, 2005

345 N.L.R.B. 306 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 24
306
KSL DC Management, LLC d/b/a Hotel Del Coro-
nado and Hotel Employees and Restaurant Em-
ployees International Union, Local 30, AFL–
CIO, CLC. Cases 21–CA–36119 and 21–CA–
36195
August 26, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 13, 2004, Administrative Law Judge
Lana H. Parke issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. Employee David A. Hall
filed an amicus brief in support of the Respondent’s ex-
ceptions.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 as modified below and to adopt
the recommended Order.
1. We agree with the judge, for the reasons set forth
below, that the Respondent violated Section 8(a)(5) and
(1) by refusing to recognize and bargain with the Union
as the exclusive representative of a unit of elevator op-
erators, storeroom specialists, spa attendants, and facili-
ties employees.
The Respondent, KSL Management, LLC (the Re-
spondent) operates the Hotel del Coronado. Prior to late
2003, the hotel was operated by Destination Coronado
Hotel, Inc. (the predecessor employer). The Predecessor
Employer and the Union were parties to a collective-
bargaining agreement, effective 2000–2005, that covered

1 On May 5, 2005, the Board granted the request of David A. Hall to
file an amicus brief and accepted the brief that accompanied that re-
quest.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 1083 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent also contends that the judge’s rulings, findings, and
conclusions demonstrate bias and prejudice. On careful examination of
the judge’s decision and the entire record, we are satisfied that the
Respondent’s contentions are without merit.
3 Member Schaumber finds it unnecessary to pass on whether the
Respondent, through Manager Eddie Ramirez, violated Sec. 8(a)(1) by
telling employee Joaquin Garcia that “it was easier to fire someone
since there was no union” when the Union did, in fact, represent the
employees, and by telling employees “no seniority, no union.” Mem-
ber Schaumber observes that such findings would be cumulative of the
violations found and would not affect the remedy.
hotel culinary, stewarding, dining, convention services,
housekeeping, and banquet employees. On September
26, 2001, the Predecessor Employer and the Union en-
tered into a neutrality agreement that governed the par-
ties’ conduct during any subsequent union organizing
drives at the hotel.
In September 2003,4 the Union began organizing some
unrepresented hotel employees. (At that time, there were
two units of hotel employees that were represented by
the Union.) On October 6, the Union filed a representa-
tion petition seeking an election in a unit that covered the
predecessor employer’s elevator operators, storeroom
specialists, spa attendants, and facilities employees. On
October 9, the Union and the predecessor employer en-
tered into a Stipulation for Certification upon Consent
Election Agreement for that unit of employees. The
Board-conducted election was held on October 30. The
Union won the election and was certified as the unit’s
exclusive bargaining representative on November 7.
The Respondent purchased the Hotel from the prede-
cessor employer on December 18. The Respondent did
not hire all of the predecessor’s employees and did not
adopt the collective-bargaining agreement between the
Union and the predecessor, but set its own initial terms
and conditions of employment. However, a majority of
the employees hired by the Respondent worked for the
predecessor, and the Respondent concedes that it is a
successor within the meaning of NLRB v. Burns Security
Services, 406 U.S. 272 (1972).
The Union requested that the Respondent recognize it
as the bargaining representative of the Hotel’s employees
that it had represented under the predecessor employer,
including those in the newly certified unit. Although the
Respondent recognized the Union as representative of
the employees in the other two units covered by the
predecessor’s contract, it refused to recognize and bar-
gain with the Union as the representative of the employ-
ees in the newly certified unit.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) by refusing to recognize the Un-
ion as representative of the unit of the Respondent’s ele-
vator operators, storeroom specialists, spa attendants, and
facilities employees. The Respondent raises several de-
fenses to this allegation. It argues that: (1) the certified
unit is not appropriate; (2) the voters in the election had
no reasonable expectation of continued employment at
the time of the election (because the predecessor in-
formed them on October 17 that it would terminate
them); and (3) the predecessor and the Union tainted the

4 All dates are in 2003 unless noted.
HOTEL DEL CORONADO 307
election by entering into an unlawful neutrality agree-
ment.
We reject those arguments. We find that the Respon-
dent is procedurally barred from challenging the Union’s
certification on grounds that the predecessor employer
could have raised in the underlying representation case.
The Board has held that a successor employer stands in
the shoes of its predecessor and may not defend against
an allegation that it is unlawfully refusing to recognize
and bargain with a certified union by alleging matters
that its predecessor could have raised in a prior represen-
tation proceeding, absent special circumstances.5 New
London Convalescent Home, 274 NLRB 1442 (1985)
(barring successor employer from challenging union’s
certification on grounds that predecessor employer raised
or could have raised in prior representation case); Dy-
namic Machine Co., 221 NLRB 1140, 1142 (1975)
(same), enfd. 552 F.2d 1195 (7th Cir. 1977); Investment
Building Cafeteria, 120 NLRB 38, 43 (1958) (same).
Here, the predecessor employer could have raised each
of the issues in the representation case that the Respon-
dent now raises. It did not. Nor do we find any special
circumstances in this case that would warrant allowing
the Respondent to press its arguments. The fact that the
Respondent was not a party to the Board election does
not constitute a “special circumstance” that would permit
it to challenge the Union’s certification. New London
Convalescent Home, 274 NLRB at 1443 (finding that
successor employer had not raised any special circum-
stances); Investment Building Cafeteria, 120 NLRB at
43; cf. Evangeline of Natchitoches, Inc., 323 NLRB 223
(1997) (finding that postcertification decision by Su-
preme Court constituted “special circumstances”) Brinks
Inc. of Florida, 276 NLRB 1, 2 (1985) (finding special
circumstances where employer alleged that certified unit
of guards had affiliated with a nonguard union in viola-
tion of the Act). Consequently, we adopt the judge’s
finding that the Respondent violated Section 8(a)(5) and
(1) by refusing to recognize and bargain with the Union.6

5 Chairman Battista notes that “any person” (not just the predeces-
sor) could have filed a charge alleging that the neutrality agreement
was unlawful. No charge was filed.
6 Chairman Battista finds it unnecessary to decide whether a card-
check recognition, based on a neutrality clause, would be binding on a
successor employer.
Because the Board finds that the Respondent is procedurally barred
from challenging the Union’s certification, Member Schaumber finds it
unnecessary to pass on the issues raised in the amicus brief.
2. We adopt the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) by temporarily demoting
employee Joel Martinez from server to busboy on De-
cember 21, 2003. The Respondent claimed that it tempo-
rarily demoted Martinez on that date because, on De-
cember 14, he “stole” a table that was assigned to another
team of employees. The record shows that Martinez and
two coworkers, fellow server Florence Hatfield and bus-
boy Zeferino Cortez, served the table at issue. The judge
found, and we agree, that the General Counsel satisfied
his initial burden of proving that animus was a motivat-
ing factor in the decision to temporarily demote Marti-
nez. The judge then found that the Respondent’s as-
serted legitimate justification was pretextual. Specifi-
cally, the judge found that the Respondent did not in fact
rely on the alleged table theft because the Respondent
failed to adequately investigate it before disciplining
Martinez. We find that the Respondent’s asserted justifi-
cation was pretextual, but we do not rely on the Respon-
dent’s failure to investigate the alleged table theft. Cf.
Guardian Automotive Trim, Inc., 340 NLRB 475, 475 fn.
1 (2003).7 Instead, we find pretext based on the Respon-
dent’s failure to adequately explain why it targeted Mar-
tinez and not his teammates, who also served the table.
Absent such an explanation, the Respondent has failed to
establish by a preponderance of the evidence that it was
in fact motivated by the alleged table theft when it tem-
porarily demoted Martinez. Absent a nonpretextual justi-
fication for disciplining Martinez, the Respondent has
not satisfied its rebuttal burden under Wright Line, 250
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
of demonstrating that it would have temporarily demoted
Martinez even absent his protected activity. See Bantek
West, Inc., 344 NLRB No. 110, slip op. at 1 fn. 1, 8
(2005).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, KSL DC Management, LLC
d/b/a Hotel del Coronado, Coronado, California, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.

7 In finding that the Respondent violated the Act by temporarily de-
moting employee Martinez, Member Liebman relies on both the
judge’s analysis and her colleagues’ analysis below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD308
Robert N. MacKay, Atty., for the General Counsel.
Matthew T. Wakefield and Candice T. Zee, Attys. (Ballard,
Rosenberg, Golper, & Savitt, LLP), of Universal City, Cali-
fornia, for the Respondent.
Brigitte Browning, Organizer, of San Diego, California,1 for
the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in San Diego, California on July 19–21, 2004, on an order
consolidating cases, consolidated complaint, and notice of hear-
ing (the complaint) issued April 21, 2004,2 by the Regional
Director of Region 21 of the National Labor Relations Board
(the Board) based on charges filed by the Hotel Employees and
Restaurant Employees International Union, Local 30, AFL–
CIO, CLC (the Union.)3 The complaint, as amended, alleges
KSL DC Management, LLC d/b/a Hotel del Coronado (Re-
spondent) violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act). Respondent essentially denied
all allegations of unlawful conduct.
Issues
1. Did Respondent independently violate Section 8(a)(1) of
the Act by threatening to report an employee to management
for engaging in union or other protected activities, by threaten-
ing an employee with unspecified reprisals for engaging in
union or other protected activities, by informing employees of
the futility of selecting the Union as their bargaining represen-
tative, by telling an employee he needed to learn not to picket,
by telling an employee he had been demoted so he would learn
not to picket, by telling an employee he was being sent home so
he would learn not to picket, by instructing a supervisor, in the
presence of employees, to send home an employee because he
engaged in union activities, or by indicating to an employee
that he was disciplined because of his union or other protected
activities.
2. Did Respondent temporarily demote, twice suspend, and
discharge employee Joel Martinez because he engaged in con-
certed, protected activities to discourage other employees from
doing likewise.
3. Did Respondent discharge employee Juan Torres because

1 W. James Young, Atty., of the National Right to Work Legal De-
fense Foundation, Inc., who represents David A. Hall, an employee of
Respondent opposed to union organization, sought to intervene in these
proceedings for the purpose of urging that a neutrality agreement en-
tered into between Respondent’s predecessor and the Union was im-
proper. I denied the motion to intervene but granted permission to file
an amicus curiae brief herein.
2 All dates herein are 2004 unless otherwise specified.
3 At the hearing, counsel for the General Counsel amended the com-
plaint as follows: (1) alleged Eddie Jaramillo to be a banquet supervisor
and a supervisor and agent of Respondent within the meaning of the
Act, (2) alleged Respondent violated Sec. 8(a)(1) of the Act, through
Eddie Ramirez, by informing employees of the futility of selecting the
Union and (2) through Mark Braswell, by indicating to an employee
that he was disciplined because of his protected activities. Respondent
admitted the first allegation and denied the latter two.
he engaged in union or other concerted protected activities and
to discourage other employees from doing likewise.
4. Do the following classifications of employees constitute
an appropriate unit within the meaning of Section 9(b) of the
Act:
All full time and regular part-time elevator operators, store-
room specialists, spa attendants and facilities employees em-
ployed by the Employer at its facility located at 1500 Orange
Avenue, Coronado, California.
5. Since December 18, 2003, has the Union been the exclu-
sive collective-bargaining representative of the above-described
unit employees.
6. Has Respondent, since December 31, 2003, failed and re-
fused to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the above-described unit
employees in violation of Section 8(a)(5) of the Act.
On the entire record,4 including my observation of the de-
meanor of witnesses and after considering the briefs filed by
the General Counsel, Respondent, and the amicus curiae brief
of Charging Party/Petitioner, I make the following
FINDINGS OF FACTS
I. JURISDICTION
Since December 18, 2003, Respondent, a Delaware limited
liability company, with a facility located in Coronado, Califor-
nia, has been engaged in the operation of a hotel providing food
and lodging (the Hotel).5 Based on a projection of its opera-
tions since December 18, 2003, Respondent will annually de-
rive gross revenues in excess of $500,000 and will annually
purchase and receive goods valued in excess of $50,000 at the
hotel directly from points outside the State of California and
from other enterprises located within the State of California,
each of which will have received the goods directly from points
outside the State of California. Respondent admits, and I find, it
has at all relevant times been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Refusal to Recognize and Bargain
At relevant times prior to December 18, 2003, Destination
Coronado Hotel, Inc., d/b/a Hotel del Coronado (Coronado)
operated the Hotel. The Union and Coronado were parties to a
collective-bargaining agreement for the term of September 1,
2000, through October 31, 2005, covering, inter alia, the Ho-
tel’s culinary, stewarding, dining, convention services, house-
keeping, and banquet employees. On September 26, 2001,
Coronado and the Union entered into a “neutrality agreement,”
which gave the Union, on written notice, access to the Hotel’s
unrepresented employees in nonwork areas during nonwork-

4 Respondent and Counsel for the General Counsel’s unopposed
posthearing motions to correct the transcript are granted. The motions
and corrections are received as ALJ Exhs. 1 and 2, respectively.
5 Where not otherwise noted, the findings are based on the pleadings,
the stipulations of counsel, and/or unchallenged credible evidence.
HOTEL DEL CORONADO 309
times and provided for streamlined representation election pro-
cedures if the Union obtained a showing of interest.
On October 6, 2003, after an organizing campaign conducted
under the provisions of the neutrality agreement, the Union
filed a representation petition with the Board for a unit of Re-
spondent’s employees employed at the Hotel in the following
classifications (the unit):
All full-time and regular part-time elevator operators, store-
room specialists, spa attendants and facilities employees em-
ployed by Respondent at its facility located at 1500 Orange
Avenue, Coronado, California.
On October 9, 2003, the Union and Coronado entered into a
Stipulation for Certification Upon Consent Election Agreement
providing for a representation election in the unit on Octo-
ber 30, 2003, which agreement the Regional Director of Region
21 approved on October 10, 2003. The Union won the October
30, 2003 election, and the Region certified the Union as the
exclusive collective-bargaining representative of employees in
the unit on November 7, 2003.
On December 18, 2003, Respondent purchased the assets of
Coronado. Respondent did not hire all of Coronado’s employ-
ees and did not adopt the collective-bargaining agreement be-
tween the Union and Coronado but set its own initial terms and
conditions of employment. By letter dated December 17, 2003,
the Union demanded Respondent recognize it as the collective-
bargaining representative of employees in more than 90 classi-
fications, including those in the unit.
By letter dated December 31, 2003, Respondent recognized
and offered to bargain with the Union as the collective-
bargaining representative of two units of employees previously
covered by the terms of the 2000 through 2005 collective-
bargaining agreement between Coronado and the Union. 6 Re-
spondent said nothing about recognizing or bargaining with the
Union regarding the unit.
By letter to Respondent dated January 30, the Union sent a
copy of the November 7, 2003 certification of representative of
the unit and stated in pertinent part:
please be advised that we represent the following clas-
sifications: Maintenance, Storeroom, Spa Attendants, and
Elevator Operators (NLRB Certification attached).
Your letter of December 31, 2003 failed to list these
classifications as represented by the union. Please include
[certain information] for these classifications also.
Respondent declined to recognize the Union as the represen-
tative of employees in the unit and has continued to refuse to do
so since December 31, 2003, taking the position that the unit is
inappropriate and that conduct by the Union and Coronado
invalidated the October 30, 2003 representation election.
B. Alleged Independent 8(a)(1) Violations
At all relevant times, the following individuals were supervi-
sors and agents of Respondent within the meaning of the Act in
the following positions, which positions they had held when

6 Respondent is currently in negotiations with the Union regarding
the two units.
Coronado operated the Hotel:
Eddie Ramirez (Ramirez) Banquet Manager
Toby Graff (Graff) Banquet Manager7
Michael Holst (Holst) Banquet Manager
Mark Braswell (Braswell) Banquet Manager8
Matt Albert (Albert) Banquet Manager
Eddie Jaramillo (Jaramillo) Banquet Manager
Linda Contreras (Contreras) Assistant Director
Human Resources
Prior to Respondent’s takeover, Brigitte Browning (Brown-
ing), organizer for the Union, prepared an employee petition
(the employee petition), which was to be signed by the Hotel’s
employees and was intended to protest, inter alia, Respondent’s
failure to hire all of Coronado’s employees. Browning gave
copies of the petition to key employees, including Joel Marti-
nez (Martinez), banquet server, for signature solicitation. Mar-
tinez collected employee signatures on the employee petition
during the week of December 18, 2003.9 According to em-
ployee Modesto Perez (Perez), one day, as Martinez discussed
the employee petition with him at a table in the employee cafe-
teria, Ramirez stopped by them and looked at the petition,
which lay on the table. Ramirez asked, “That is a union peti-
tion, right?” Saying he would tell Braswell so he could take
action, Ramirez left. Ramirez denied ever seeing any petition
or asking or commenting to any employee about one, and
Braswell denied that Ramirez had ever told him of a petition.
Because of inconsistency and vacillation in Ramirez’ testi-
mony, as set forth below, I do not credit his denial. I found
Perez to be a forthright and reliable witness, and I find Ramirez
made the statements Perez attributed to him.
The Union engaged in picketing and leafleting in front of the
Hotel on December 18, 20, and 31, 2003, and January 19 in
protest, inter alia, of Respondent’s changes in terms of em-
ployment and refusal to hire all employees of Coronado. Some
employees wore union buttons at work.
On about December 20, 2003, Ramirez walked past Joaquin
Garcia (Garcia) in the banquet office, touched him on the
shoulder and said, “Joaquin, no more union. Be careful.”10
Ramirez denied making any such statement. I found Garcia to
be clear and careful in his testimony. I note he was employed
at the Hotel at the time of the hearing, and, as a current em-
ployee, his testimony adverse to Respondent is given against
self-interest, a factor not to be regarded lightly. Moreover, he
evinced no animosity toward either the Company or his super-
visors, and his manner and demeanor were convincing. I ac-
cept Garcia’s accounts in this instance and in further testimony
as set forth below.

7 Graft left Respondent’s employ in February 2004.
8 Braswell left Respondent’s employ in February 2004.
9 Respondent contends the failure of counsel for the General Counsel
or the Charging Party to introduce any such petition into evidence
shows Martinez was never involved in circulating the petition. It is not
necessary, however, to see the petition to accept evidence of its exis-
tence and circulation.
10 In his investigatory affidavit, Garcia recounted Ramirez’ comment
as follows: “You guys need to be careful because the Union isn’t here
anymore and that you guys can be fired for any mistake.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD310
Perez testified that on December 25, 2003, during his shift,
he overheard Jaramillo say to Graff as they worked at the mi-
cros (credit card) machine, “Send home the picket line guy.”
According to Perez, Jaramillo made the statement in English.
Perez, whose primary language is Spanish and who testified
through an interpreter, demonstrated his ability to comprehend
English. Graff and Jaramillo denied any such interchange. I
credit Perez’ testimony.
Garcia missed work during the Christmas 2003 holidays be-
cause of illness. According to Garcia, on January 10, he ex-
plained to Ramirez that when, prior to the holidays, he had been
unable to reach a supervisor, he had followed the procedure of
a decade and had notified security of his prospective absence.
Ramirez told Garcia he would have to talk to Braswell about
whether Garcia had made proper notification, and if not, some
action would be taken against him because a union contract no
longer existed, and the company could fire him. Ramirez said
it was easier to fire someone since there was no union. On
other occasions when Garcia asked why he was being sched-
uled fewer days although he had seniority, Ramirez told him,
“No seniority, no union.” On three or four other occasions,
Ramirez told employees there was no union, and they should be
careful not to do the wrong thing. Respondent points out that
Respondent had recognized the Union for two units of employ-
ees, including the one in which Garcia worked, and therefore,
Garcia’s testimony is inherently unreliable. I note Garcia testi-
fied Ramirez said the union contract no longer existed as well
as saying there was no union, and I find it reasonable to infer
that a declaration of “no union” was intended and was under-
stood to mean no contract. I credit Garcia’s testimony.
Garcia wore union buttons at work and engaged in picketing
the Hotel on January 19. Two or 3 days later, Albert told Gar-
cia, “You guys making too many [sic] noise outside. You guys
better be careful because you know what happened with Jona-
than [Juan Torres who was fired on January 14].” Albert de-
nied making any such statement to Garcia. I credit Garcia’s
testimony.
C. Discharge of Juan Torres
Juan Torres (sometimes called “Jonathan” at the workplace
and herein Torres), worked at the Hotel from 1986 until his
discharge on January 14, as a barback, the duties of which are
to prepare banquet bars for serving, i.e., assembling ice,
glasses, beverages, etc. Respondent hired Torres when it pur-
chased the Hotel. Torres’ supervisors remained unchanged; his
immediate supervisor after December 18, 2003 was Ramirez
who reported to Braswell. Gabriel “Guinny” Zambrano (Zam-
brano) continued to serve as lead barback, the duties of which
include posting work schedules and notifying employees of
schedule changes.
Torres participated in picketing at the Hotel on December 18
and 20, 2003, during which time, he testified, he saw Ramirez
and Graff watching the picketing from the second story window
of the Grand Hall. Ramirez denied that he had seen any picket-
ing at all at the Hotel until about two months prior to the hear-
ing (sometime in May). Graff denied seeing Torres picketing.
Ramirez’ testimony that he never saw any picketing at the Ho-
tel prior to May is so implausible that I cannot credit him. I
find Respondent was aware Torres engaged in picketing the
Hotel prior to his discharge.
Before Respondent’s takeover of the Hotel, Coronado gener-
ated weekly work schedules for banquet employees. Banquet
bartender and barback schedules were set out on a paper enti-
tled “Banquet Server Weekly Schedule,” a copy of which was
available to each employee and also posted on Saturday after-
noons. Each schedule covered the period of Monday through
Sunday of each week and designated employee reporting time
under columns marked “B, L, and D” for breakfast, lunch, and
dinner, respectively. After December 18, 2003, Respondent
changed the weekly work schedule period to begin on Saturday
and end on Friday. Respondent posted a notice in several ban-
quet office areas, which in pertinent part, read:
WORK WEEK SCHEDULE
Effective Immediately: 12/19/03
Due to new company policies the new work schedule begins
on Saturday and ends on Friday.
Torres worked Saturday, December 20, 2003 but did not see
the posted notice of the changed schedule period. He obtained
a copy of the barback schedule posted for Monday, December
22 through Sunday, December 28, 2003, of the following week.
The schedule was blank for all employees for the days of De-
cember 27 and 28, 2003, and showed no work assignment for
Torres at any time during that week. Respondent posted an-
other schedule that reflected the changed scheduling period,
Saturday, December 27, 2003 through January 2. The new
schedule showed Torres scheduled as follows:
December 27, 2003—9 a.m. to 5 p.m.
December 31, 2003—4 p.m. to midnight
Torres did not see the changed schedule and did not report to
work on December 27, 2003. No one from the Hotel contacted
Torres to tell him of any change in the schedule or that he was
scheduled to work on December 27, 2003.
According to Braswell, Ramirez came to him the night of
December 27, 2003 and told him Torres had not shown up for
work. Braswell told Ramirez to document it. Ramirez did not
fully corroborate Braswell’s testimony. Although Ramirez
testified he told Braswell that Torres was a no-call/no-show that
night, he testified Braswell made no response. A disciplinary
action form was created for Torres, which Braswell said he
signed and forwarded to human resources and which reads in
pertinent part:
Date written: 12–29–03
Date of Incident: 12–27–03
. . . .
Incident Description: Juan was scheduled to work on
12–27–03. He did not call nor did he report to work as
scheduled.
. . . .
Disciplinary action taken:
. . . .
Final Written Warning
. . . .
HOTEL DEL CORONADO 311
Has employee received any prior warnings of any
kind? . . . Final Written Warning
Torres denied Respondent ever gave him the above discipli-
nary action form or that any supervisor ever spoke to him about
missing the December 27 shift prior to his discharge, and there
is no contrary evidence. According to Braswell, he was not
involved in giving this written warning to Torres. When Rami-
rez was asked if he had given Torres the disciplinary action
form for no-call/no-show on December 27, 2003, his answer
was as follows:
A. There was a time–if we are—when he showed up
to work, he had already gotten the no-call/no-show. Mark
was still—that paperwork and then, after that, he presented
that. I believe he did that job abandonment. I am not sure
when all that took action. After that job abandonment, I
know that Mark was going to take action, over it.
Although it is unclear what Ramirez meant by this somewhat
circumlocutory answer, it is obvious he did not give Torres the
written warning. Further, Ramirez admitted he did not know if
the written warning had been shown to Torres before January
14. Ramirez did testify, without further explication, that Torres
“mentioned” to him he knew he was on schedule for December
27, 2003, but in light of the vague and inconsistent testimony
regarding the warning, I cannot accept his assertion. I find,
therefore, that Respondent neither gave Torres any warning,
oral or written, for not coming to work on December 27, 2003,
nor even mentioned the matter to him prior to his discharge.
On December 28, 2003, Torres telephoned the Hotel to learn
his schedule for the following week. He spoke to barback Gus-
tavo Hernandez, who said he was scheduled to work December
31, 2003, at 4 p.m.
On December 30, 2003, Torres went to the Hotel to talk to
Ramirez. He told Ramirez he needed more hours, that he had
not been scheduled for even 1 day. According to Torres, Rami-
rez told him Braswell prepared the schedule, and Torres went to
Braswell with his complaint. Braswell told him Ramirez made
the schedule. Ramirez entered Braswell’s office at that mo-
ment, and Torres told him in Spanish what Braswell had said.
Ramirez answered in Spanish that both of them made out the
schedule. Torres asked why Respondent was not giving him
any hours. Ramirez said he could do as he pleased, as there
was no union and no seniority, and that what Torres was doing
was not helping him; it was not the right thing, and he should
not use the buttons. Torres showed Ramirez Respondent’s
Hotel Del Coronado associate handbook, which had been given
to employees and which stated seniority could be taken into
account in scheduling.11 Ramirez agreed it could. Torres told
Ramirez he was going to talk to personnel. Ramirez essentially
denied any such conversation although he testified he told Tor-
res work assignments were based on performance. Although
Ramirez observed Torres wearing a union button “all the time,”

11 The pertinent provision of the Associate Handbook reads:
SENIORITY
Classification seniority, which is the length of time an em-
ployee has held their current position . . . may be taken into con-
sideration for purposes of scheduling.
he denied he said anything to him about it. I did not find Rami-
rez’ to be a convincing witness. I found Torres to be earnest
and careful in testifying and apparently candid. I accept his
testimony in this regard.
Respondent’s barback schedule for the first Saturday through
Friday period in January showed Torres assigned to work on
Monday, January 5, 11 a.m. to 7 p.m. On Sunday, January 4,
Zambrano telephoned Torres and told him to start work on the
following day, Monday, January 5, at 9 a.m. instead of 11 a.m.
As directed, Torres reported to work at 9 a.m. on January 5 and
worked until 4:30 p.m. At 4:30 p.m., Zambrano said the em-
ployees for the evening shift were already there, and the earlier
shift employees could leave. According to Torres, it was not
unusual for Zambrano to give such directions. Torres’ timecard
shows he punched out at 4:30 p.m.12
Ramirez testified he had given Zambrano permission to
leave early on January 5, but had given no such permission to
Torres. According to Ramirez, he noticed Torres was gone at
about 2:30 p.m.; he prepared a disciplinary action form for
Torres and submitted it to Braswell.13 Later, at Torres’ next
scheduled shift, Ramirez asked him about his absence. Torres
told Ramirez that Zambrano had authorized his leaving early.
According to Ramirez, he then asked Zambrano if he had au-
thorized Torres to leave early, and Zambrano denied having
done so. According to Ramirez, he told Braswell of Zam-
brano’s response.
Braswell’s testimony regarding Torres’ leaving on January 5
was not fully consistent with that of Ramirez. Braswell testi-
fied Ramirez came to him on January 5 and told him, “Juan is
gone.” Braswell asked Ramirez to talk to Torres and find out
what had happened. Ramirez “probably” reported back to him
at Torres’ next shift that Torres said Zambrano told him he
could leave. Under cross-examination, Braswell testified Ra-
mirez also told him Zambrano had admitted telling Torres he
could leave early. The inconsistencies between Ramirez and
Braswell’s accounts further diminishes Ramirez’ credibility.
Braswell assertedly found Torres’ reason for leaving unac-
ceptable. According to Braswell, sometime during the summer
of 2003, a grievance resolution meeting between Coronado and
the Union, attended by barbacks, including Torres, addressed
Zambrano’s authority to release employees from work early.
Coronado and the Union agreed that Zambrano could release
the barbacks for breaks but could not change employees’
schedules, either to bring them in early or send them home
early. Because of that background, Braswell concluded Torres
left work without permission although he knew better.
Braswell initially testified the grievance related to Torres’ hav-
ing left early. Under cross-examination, he was unsure whether
the grievance concerned Torres. Graff testified the grievance
was that of an employee named “Joaquin.” The recollections of
Braswell and Graff about the meeting were vague, and I con-

12 Having reported to work at 9 a.m., presumably Torres’ shift would
have ended at 5 p.m. or 30 minutes after he left work.
13 Ramirez did not explain why he believed Torres was gone from
work by 2:30 p.m. although Torres did not punch out until 4:30 p.m. I
find this unexplained inconsistency a further reason to discredit Rami-
rez’ testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD312
clude Braswell did not have a good-faith belief that the griev-
ance related to Torres or even that he was present at the meet-
ing.
Torres called in sick prior to his shift on Tuesday, January 6,
and did not report to work again until January 10. When he did
so, Ramirez gave him a written warning for having started and
left work early on January 5. Torres protested that Zambrano
had called him in early and had told him to leave early. Rami-
rez said that Zambrano could call Torres in early but had no
authority to let him leave early. Torres denied he had ever
before been told Zambrano had no authority to send him home
early.
About a week later, after a discussion with Contreras and
considering Torres’ past performance issues, his no-call/no-
show of December 27, and that he was still in his 90-day proba-
tion period, Braswell recommended Torres be terminated.
Braswell denied any knowledge of Torres’ involvement in un-
ion activities. Given Ramirez’ observation that Torres wore a
union button all the time, I cannot accept Braswell’s denial of
knowledge.
During Torres’ scheduled shift on January 14, Ramirez
called him to the banquet office and, with Holst present, fired
him. Ramirez told Torres that Respondent no longer needed his
services because he had not reported to work on two days and
because he had left work early on January 5. When Torres
asked what days he had missed, Ramirez did not answer. Tor-
res told Ramirez what he was saying was untrue. He refused to
sign the termination notice, which read, “Juan left work one
hour early without informing his manager. Juan is aware he
must have manager’s authorization to leave his scheduled shift
early.” The notice further noted a prior warning for “No call no
show on 12/27/04 [sic].”
According to Braswell, Respondent terminated Torres be-
cause he was no-call/no-show for a shift, left work early with-
out permission, and had serious performance issues beginning
prior to December 18, 2003. When asked to specify the issues,
Braswell testified as follows:
A. Just recall some—a big—Juan, also, had—would
leave work early, in the past—has left work early, that
type of thing, disappeared. We could not find him.
. . . .
Q. Were you relying on his performance before De-
cember 18th or after December 18th?
A. It would be after, again. He would continue the
same—the same—
Specifically, Braswell recalled that on New Year’s Eve, he
and Ramirez tried unsuccessfully to reach Torres by radio dur-
ing his shift when work was “real busy.” Braswell helped Ra-
mirez look for Torres because he was “responsible for the De-
partment.” Braswell and Ramirez found Torres talking to a
bartender. When asked if he had said anything to Torres,
Braswell testified:
A. I let—Eddie [Ramirez] was with me and I let Eddie
handle that.
Q. And did Eddie say something to him?
A. Yeah. He told him to get back to work—I did not
hear him say that. So, I cannot really say. I am assuming
that is what he told him because he answered the radio,
from that point on.
Ramirez recounted an occasion on either Christmas or New
Year when he looked for Torres who had been told to get wine
buckets. While Ramirez said he found Torres talking to a bar-
tender, he did not otherwise corroborate Braswell’s account of
hunting for a nonresponsive Torres. Ramirez said nothing
about Braswell’s participation in looking for Torres, and he
testified Torres did, in fact, respond to Ramirez’ radio calls
with “10/4,” meaning he would take care of the needed wine
buckets. Further, according to Ramirez, upon finding Torres,
he only said to the employee, “We have been waiting for the
wine buckets.” According to Ramirez, Torres pointed to an-
other employee who was approaching with a cart of wine buck-
ets. Ramirez did not, by his own account, dispute Torres’ ex-
planation that he had been doing something else but only re-
proached him for not calling if he needed help. Respondent
issued no written discipline to Torres for dereliction of duty on
New Year’s Eve or any other time, and Braswell admitted
Torres’ work performance was no different after the December
18 takeover than it had been prior thereto. On cross-
examination, Ramirez initially testified Torres was the third
worst barback he supervised and later testified he was the
worst. Given Braswell and Ramirez’ vague and inconsistent
testimony regarding Torres’ poor work performance or malin-
gering, I conclude Respondent had no good faith complaint
about Torres’ work.
In spite of the assertedly well-known decree regarding Zam-
brano’s lack of authority to release employees early, Braswell
did not consider Zambrano’s conduct to be an infraction of
Respondent’s rules. Respondent did not address Zambrano’s
role in Torres’ leaving work early until March 19, more than
two months after Torres’ discharge, at which time Respondent
issued Zambrano a written warning, signed inter alia by Rami-
rez, with the following incident description:
Management recently had knowledge that Guinny altered
both his and another associate schedule without the approval
of a banquet manager. He and the other associate swiped in
and out earlier than their original scheduled time. This was
not authorized by a banquet manager. Any changes to a
schedule must always be approved by a banquet manager.
D. Discharge of Joel Martinez
Martinez worked at the Hotel from 1989 until his discharge
on January 22. For the last 5 years of his employment, he
worked as a banquet server. In that position, both before and
after December 18, 2003, his supervisors were Braswell, Graff,
Holst, and Jaramillo.
On December 14, 2003, Martinez collected signatures on the
employee petition during his lunchbreak in the employee cafe-
teria. According to Martinez, as he held the employee petition
and asked coworkers to sign it, Graff approached and stared at
him. Graff shook his head in a gesture of disapproval but said
nothing. Martinez put the petition away. Graff denied ever
seeing Martinez circulate a petition or indicating disapproval of
it. I found Martinez to be generally a forthright and sincere
HOTEL DEL CORONADO 313
witness with a good recall and direct manner.14 For reasons set
forth below, I found Graff’s testimony to be sometimes equivo-
cal and/or inconsistent. Therefore, I credit Martinez’ account
of this incident.
On the same day, December 14, 2003, Martinez was as-
signed to serve seven to eight tables at the Crown Room buffet
as a member of a team that also included server, Florence Hat-
field (Hatfield)15 and dining room attendant (also called busboy
or DRA, and herein called DRA) Zeferino Cortez (Cortez).
During the shift, host Antony Castillo assigned Martinez’ team
to serve at a big table in the Coronet room that accommodated
large parties. Martinez testified Hatfield and Cortez served the
large table; Martinez only presented the bill. Later that day,
Graff called him to a storage area and told him he was sus-
pended for the next Sunday brunch because he had “stolen” a
table from a coworker and also because he had been collecting
signatures that morning. (A server steals a table when he/she
serves at an unassigned table, thereby obtaining the table’s tip.)
Martinez denied having stolen any table. Graff testified that
server, Don Smith, complained to him of Martinez’ stealing one
of his tables. Graff observed Martinez working the table
pointed out by Don Smith and then went and spoke with
Braswell about the situation. Graff testified that he investigated
the accusation before going to Braswell, but I cannot accept his
testimony. Under cross-examination, Graff initially testified he
knew the subject table was Smith’s and not Martinez’ essen-
tially because Smith, whom he respected, had told him so.
When questioned if he had asked Armando, the seating host,
whether he had assigned the table to Smith or to Martinez,
Graff first answered, “No,” then contradicting himself, testified,
“I asked. I never question Armando’s decision but I did ask
Armando, was it Don’s? He goes, yes.” Because of his initial
failure to mention any inquiry of Armando and his manner and
demeanor in later claiming to have done so, I find Graff made
no genuine investigation before taking the table-stealing com-
plaint to Braswell.
According to Braswell, upon receiving Graff’s report of ta-
ble-stealing, he instructed Graff to assign Martinez as a DRA
for three public dining shifts (since DRAs did not work ban-
quets) to let him address his performance problems.16 Braswell
said demotion to DRA was a common disciplinary practice at
the Hotel for performance problems. Graff testified he told
Martinez he would be assigned as a DRA for the next three
public dining shifts, which would have been the Sunday brunch
on December 21, 2003, the Christmas Eve holiday event on
December 24, 2003, and the Christmas holiday event on De-
cember 25, 2003. I cannot accept Braswell or Graff’s accounts.
I note Respondent failed to investigate the allegation of table-
stealing and jumped directly to discipline with inexplicable

14 Although this incident occurred prior to Respondent’s purchase of
the Hotel assets and is not attributable to Respondent, since Respondent
employed Graff as a supervisor, it may serve to demonstrate animus.
15 In his testimony, Braswell referred to an employee named Flor-
ence “Henderson,” but the record suggests Florence Hatfield and Flor-
ence Henderson are one and the same. I have referred to that employee
as Hatfield herein.
16 Banquet servers worked during banquets and public dining events,
the latter of which are Sunday brunch and holiday buffets.
haste. Respondent also failed to present any corroborating
employee witness to the table-stealing incident or explain its
failure to do so. Further, although Braswell claimed Martinez
had stolen tables on several occasions in the past, the last oc-
curring in October or November 2003, there is no evidence
Martinez was ever disciplined for doing so; Martinez testified
without contradiction that he had never, before December 2003,
been demoted to DRA. I accept, therefore, Martinez’ version
of his interchange with Graff, although as noted below, Marti-
nez was not suspended for the following Sunday brunch.
On an afternoon in the latter part of December 2003, proba-
bly December 20,17 Martinez again collected signatures on the
employee petition in the cafeteria. Ramirez who was walking
across the cafeteria stopped next to Martinez as he was asking
coworkers to sign and said, “You guys collecting signatures for
the union, right?” The employees did not answer, and Rami-
rez said that he would tell Braswell and Jaramillo, who were
supervising that day. Martinez put the petition away for the
rest of the day. Later, Martinez joined the union picket line
from which he observed Graff and Jaramillo at a smoking area
outside the main kitchen. As Martinez passed in front of them,
both shook their heads in gestures of disapproval. Jaramillo
denied ever seeing Martinez picketing. Martinez worked as a
server that night without incident. I credit Martinez’ account of
the incidents.
There is testimonial confusion regarding whether Martinez
worked on December 21, 2003. Martinez testified he did not
work, maintaining he was suspended on that date, but Respon-
dent’s records show the following for Martinez’ work hours of
December 20 through 25, 2003:
DATE CLOCK IN CLOCK OUT POSITIONCODE
Dec. 20 3 p.m. 11 p.m. 855 (server)
Dec. 21 7 p.m. 3:30 p.m. 198 (DRA)
Dec. 24 3 p.m. 10:15 p.m. 855
Dec. 25 8:30 a.m.
10:36 a.m.
10:06 a.m.
Noon
855
19818
I find Martinez worked the Sunday brunch on December 21,
2003, as a DRA.19 According to Martinez, when he arrived at
work, Graff said he was to work as a DRA. Martinez, who had
not worked as a DRA for 5 years, asked why, and Graff said,
“You have to learn not to picket.”20 Although Martinez testi-
fied this exchange occurred on December 24, 2003, since Re-
spondent’s records show Martinez worked on that date as a
server, the recounted exchange with Graff could not have oc-
curred then. It is reasonable to infer that Martinez may have
confused what occurred on December 24, 2003, with what oc-

17 Although Martinez testified this incident occurred on December
18, 2003, his time card shows he was mistaken. Respondent argues
that Martinez’ mistake about the date proves he did not picket, but it is
reasonable to infer Martinez merely confused the date.
18 No explanation was given as to why this apparently inaccurate
code appears on Martinez’ timecard for this time and date.
19 As a DRA, Martinez assisted servers and received only 15 percent
of the tip pool, the remaining going to the servers.
20 Under cross-examination, Martinez added that Graff also said his
demotion was for collecting signatures.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD314
curred on December 21, 2003. I do not find his confusion with
dates affects his credibility.
Martinez was scheduled to work as a server in the ballroom
on December 25, 2003 and arrived at work at about 10 a.m.
After Martinez worked as a server for about 1-1/2 hours in the
ballroom, Jaramillo sent him and his serving partner, Adam
Nichols (Nichols), to the Crown Room, which opened at noon,
saying Graff needed servers there. According to Graff, “I had a
station I had to expand. I had one huge station but with two
people. It was a monster station . . . so, I took that station and
made it reasonable, and that was the station [Nichols and Mar-
tinez] got.”
When Martinez reported to the Crown Room a few minutes
before noon, Graff assigned him and Nichols to a station of five
tables while other servers were assigned more. Nichols asked
Graff if the small station was meant as a punishment. Although
Martinez was not happy about the assignment, he did not com-
plain.
According to Graff, he went to Martinez and apologized for
the smallness of his assigned station. Graff testified he knew
Martinez was upset about the station because he “gave a hand
gesture, like what is this?” Graff testified Martinez said he
would rather go home. Graff ascertained from Nichols that he
could handle the station by himself and then spoke to Braswell,
telling him he intended to give Martinez a choice of staying or
leaving. Braswell said he had no problem with that. Graff
wanted to have someone with him when he talked to Martinez
because he believed Martinez was angry about the situation.
Taking Martina Ewing, banquet manager, with him, Graff ap-
proached Martinez and told him Nichols could handle the sta-
tion, and if Martinez liked he could go home. Martinez shook
Graff’s hand and thanked him. Graff told him to enjoy his
Christmas with his family, and Martinez clocked out. Martina
Ewing, called as a witness, did not recall any such conversa-
tion, although she testified she would have recalled a situation
in which a supervisor suspended an employee and ordered him
to go home.
Martinez’ testimony differed from Graff’s. According to
Martinez, at about 12:30 p.m., Graff led Martinez’ to the [time
clock] and said, “Check out, go home, Merry Christmas.” On
direct examination, Martinez testified he asked why he was
being sent home, and Graff said, “You got to learn the lesson
not to be on the picket line.” Under cross-examination, Marti-
nez recounted his December 25 exchange with Graff somewhat
differently:
Q. BY WAKEFIELD: As best as you can recall, what
was it that Toby said to you, at the time you left?
A. Check out, go home, Merry Christmas and I asked
him why? He said, go home, Merry Christmas.
With regard to the interchange between Martinez and Graff
on December 25, 2003, there are factors that weigh against the
credibility of both participants. Martinez’ direct and cross-
examination versions of Graff’s statements are inconsistent,
and I find that troubling. Graff’s account suffers from inherent
incongruity. His testimony that he believed Martinez was an-
gry at the smallness of the station he was assigned in the Crown
Room is implausible. From Graff’s description, Martinez’
hand gesture could not have produced any rational belief that
Martinez was angry. Indeed, according to Graff, Nichols was
far more open than Martinez about his displeasure, asking if the
assignment was a punishment, and yet Graff did not, appar-
ently, conclude he was angry. Graff claimed Martinez said he
would rather go home than work the shift, and yet when Graff
approached him to tell him he could do just that, Graff assert-
edly felt the need to take another manager (who, incidentally
recalls no such event) to beard the allegedly angry Martinez.
Further, Graff’s assertion that Respondent did not need Marti-
nez’ services that day is inconsistent with his testimony that
holiday dining events were “a lot of work,” and “crazy,” “re-
volving door” occasions, when Braswell did not send any em-
ployee home.21 All circumstances considered, I conclude Mar-
tinez’ failure to repeat fully in cross-examination what he had
testified to in direct, does not vitiate his direct testimony. I find
the inconsistency is more likely the product of nerves than of
mendacity. Further, I found Graff’s testimony to be unreliable
and his manner and demeanor unprepossessing. Accordingly, I
give weight to Martinez’ direct testimony.
Friday, January 2, was Respondent’s biweekly payday. Mar-
tinez, who was not scheduled to work, went in to pick up his
paycheck. Seeing Holst, Martinez asked him why he was not
being given work although he was available morning, noon,
and night. Holst said, “You have to learn the lesson to not to be
in the picket line.” Holst recalled the conversation but denied
he said anything about the picket line. Rather, he said he told
Martinez that Respondent assigned full-time shifts based on
performance. Holst denied knowing Martinez had picketed. I
accept Martinez’ testimony.
On January 9, Martinez reported for work at about 8:20 a.m.,
not knowing the 9:30 a.m. event for which he was scheduled
had been canceled. According to Martinez, after he had
changed into his uniform, secretary Rosemary Castillo (Casti-
llo) told him the event had been canceled, that she had been
unable to reach him by telephone to tell him, but that there was
a chance the hotel might need servers for the afternoon or eve-
ning. Castillo testified she told Martinez it was a good thing he
had shown up because the Hotel was going to use him to do
side duty work. According to both Jaramillo and Castillo,
Jaramillo told Martinez he was to roll silverware into napkins
(rollups). In his direct testimony, Martinez denied anyone had
told him there was work for him to do on January 9 or that
Jaramillo had told him to roll silverware. Under cross-
examination, however, Martinez said it was possible he had
later admitted to Braswell that he had been told to do rollups. I
find Jaramillo did, in fact, tell Martinez he was to perform side
work that morning.
After Martinez learned the event had been canceled, he went
to human resources and talked to Contreras about his concern
that his supervisors wanted to fire him. According to Martinez,
he did not tell Contreras about supervisor statements to him
concerning his picketing or signature collection because he
feared she would report the accusations to Braswell, and he

21 The General Counsel points out that many servers worked over-
time that day, but, as Respondent counters, that relates to how long the
brunch ran that day and not to whether more servers were needed.
HOTEL DEL CORONADO 315
would be fired on the spot. Although he sought her help, Mar-
tinez felt the less he told human resources the better, as there
was no union protection. Contreras testified that Martinez told
her Graff had falsely accused him of stealing tables and that
union steward, Michael Donaldson (Donaldson) had told him to
be careful because management was out to fire him. Contreras
reported the conversation to Braswell, who was shocked about
Donaldson’s reported statement.
After talking to Contreras, Martinez changed back into his
street clothes and instead of going to the banquet office to do
silverware roll ups, left the hotel. On his way to the parking
lot, he passed by Graff, Jaramillo, and Holst in the smoking
area. According to Martinez, he neither spoke to them nor they
to him. According to Holst, Graff, and Jaramillo, Martinez
appeared to be trying to avoid their notice and ignored them
when they called to him.
Braswell testified that Holst reported Martinez’ leaving on
January 9, and after contacting other managers, Braswell dis-
covered no one had authorized Martinez to leave work. There-
after, Braswell “wanted to meet with the managers that saw
[Martinez] leaving and ask what they saw and have them give
me something in writing, as to what they had seen.”
Martinez worked on January 10 and 11. On January 12, Cas-
tillo telephoned Martinez to ask if he could work a shift that
day, which he was unable to do. During that time, no manager
said anything to him about his having left work on January 9.
On January 12, Holst emailed a statement regarding the
events of January 9 to Graff, Jaramillo, and Ramirez, with a
copy to Braswell. The email read, in pertinent part, as follows:
Subject: Joel Martinez
The following is my statement of what took place on
January 8th and 9th of 2004.
. . . .
On Friday, the 9th, Joel showed up for the 9:30 am
cancelled shift. Eddie Jaramillo informed Joel of the can-
celled function and that he needed to stay and roll silver-
ware for a function later that night. Joel then went to the
cafeteria.
Around 10:00 am Toby Graff, Eddie Jaramillo, and
myself were outside by the “high-noon” smoking area. I
noticed Joel and Alfredo Gonzalez walking out from the
employee entrance. When I looked again it was just Al-
fredo walking by himself. I then noticed Joel walking be-
hind the convention services tents, cutting through to his
vehicle. Eddie Jaramillo and I both tried to get Joel’s at-
tention from across the parking lot. When we asked Joel
where he was going, Joel stopped from getting in the vehi-
cle and looked over at us, then proceeded to climb into his
vehicle and left for the day.
Holst emailed his statement a second time to Jaramillo on
Wednesday, January 14,22 and about 20 minutes later, Jaramillo
emailed his statement to Braswell, which read as follows:

22 Holst testified he did not know why he twice emailed his state-
ment to Jaramillo, that maybe it was because Jaramillo did not know
how to put together a statement. I find it is reasonable to infer that
Holst wanted to ensure his and Jaramillo’s statements matched.
On 1–9–04 Joel showed up to the office for his 10 am
shift. I reminded him that due to the cancellation of the
event, we had called and cancelled a lot of the associates
but we need to help do 302 roll-ups for an evening event.
Rosmary [sic] was also in the office and she also told Joel
what he was doing that day. Joel disappeared for about 40
minutes so we thought he was down in the cafeteria wait-
ing for his 10 am shift. Michael, Toby and myself were
outside near the tent, when Michael saw Alfredo Gonzales
coming out threw [sic] security with Joel Martinez. When
Joel saw Mike he stopped and walked threw [sic] the
backside of the tent where he proceeded to go to his car.
Mike called for him and that’s when Joel looked at Mike
and got into his car and went home.
Graff, Jaramillo, and Holst testified in essential conformity
to the information contained in the emailed statements. Marti-
nez testified he walked by the supervisors as he left the Hotel
on January 9, but they said nothing to him and he said nothing
to them. Because, as noted above, I have reservations about the
credibility of these supervisors and because of what appears to
be Holst and Jaramillo’s orchestration of evidence regarding
Martinez’ leaving the Hotel, I accept Martinez’ testimony.
On the next payday, January 16, Martinez went to the hotel
to get his paycheck and to check his schedule. While at the
hotel, he asked to talk to Braswell, as he wanted to find out why
he was not being scheduled while others were working 5 to 6
days a week. Braswell took Martinez to his office where Graff
was also present. According to Martinez, Braswell told Marti-
nez to sit down and held up three papers, telling him he had
three warnings: he had not shown up for work on January 9 and
11. Martinez said he had worked on January 11, and he re-
minded Braswell that they had made the dessert table together,
to which Braswell agreed. Martinez said the event on January
9 had been canceled. Braswell told Martinez that although the
event had been canceled, Martinez had been told to stay and do
silverware rollups, but he had left without doing them. I accept
Martinez’ account.
According to Braswell, he also asked Martinez whether
Donaldson had told Martinez to watch out because Respondent
was trying to get rid of him.23 Braswell said Martinez denied
ever making such an accusation to Contreras.
Braswell told Martinez that every employee at the Hotel had
a brand new slate, that all disciplinary documentation from the
previous owner was gone, that he was very disappointed in
Martinez, and that he had not expected [such conduct] from
him. Braswell said the matter was a serious problem, and he
was going to suspend Martinez for 3 days. According to Mar-
tinez, he asked Graff to leave so he could talk to Braswell alone
to make things clear.24 When Graff left the room, Martinez
asked Braswell to consider his family situation: a wife and four
children, and his 15-year work history with the Hotel. Braswell

23 Braswell testified that after Contreras reported to him what Marti-
nez’ had said about Donaldson, Braswell had asked Donaldson about
the alleged conversation, and Donaldson had denied making such a
statement.
24 Graff denied Martinez asked him to leave or that he did so. I ac-
cept Martinez’ testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD316
told Martinez he would have time to think about what he was
doing and to learn not to be on the picket line. Braswell denied
making such a statement and denied knowing Martinez had
picketed, saying he had encouraged the staff to picket prior to
Respondent’s takeover, as he was not in favor of the change.
Assuming Braswell encouraged employees to picket before the
takeover, by December 18, 2003, Braswell had accepted em-
ployment with Respondent, and it is reasonable to assume he
did not then view picketing so benignly. After considering the
testimony as a whole as well as manner and demeanor of the
witnesses, I credit Martinez’ account.
Braswell gave Martinez a disciplinary action form dated
January 14, which stated, “On Friday, 01/09/04, Joel Martinez
abandoned his job by leaving without consent and without
completing his duties assigned by management.” The form
stated Martinez was suspended from January 17–22 with a
recommendation for termination. The form indicated no “prior
warnings of any kind” and noted that Martinez should call hu-
man resources on January 22. Martinez, feeling pressured and
humiliated, signed the form without looking at it.
On January 22, Martinez returned to the hotel. He showed
the disciplinary action form he had received on January 16 to
Contreras in human resources. She said she was sorry, but he
was fired. Martinez protested the unfairness of Respondent’s
action and offered to take a lie detector test to show his super-
visors were lying. Contreras said she would talk to her supervi-
sor about it. Martinez heard nothing further from Respondent
about his discharge.
At the hearing, Respondent offered evidence of numerous
problems with Martinez’ work prior to his discharge. Accord-
ing to Braswell, Martinez had a proclivity for stealing tables,
one instance of which Braswell observed sometime in the latter
part of 2003. Braswell also thought Martinez did not address
his tables quickly enough. Further, there were several occa-
sions when Martinez disappeared during his shift,25 and a cou-
ple of occasions when Martinez untruthfully told Braswell he
had permission to be away from his assigned banquet room.
Graff testified that Martinez was the object of frequent table-
stealing complaints from other servers and that no one liked to
work with him because he was rude and uncooperative. Hat-
field, according to Graff, was a server who complained about
Martinez. I cannot accept Braswell or Graff’s testimony in this
regard. Braswell’s description of Martinez as a problem em-
ployee is inconsistent with his having told Martinez at the
January 16 discipline meeting that he was very disappointed in
him, and he had not expected misconduct from him. Had Mar-
tinez, in fact, had such a troubled work history, Braswell would
have been neither surprised nor disappointed.
Moreover, it is unlikely Respondent would have hired him.26
As for Graff’s testimony, it is likewise inconsistent with the
facts. Graff claimed frequent table-stealing complaints were
leveled at Martinez, but Respondent does not point out any
previous counseling or discipline, including DRA duty, meted
to Martinez. Hatfield, named by both Braswell and Graff as a
corroborating source, did not testify.
E. Discipline of Other Employees
Disciplinary action forms received into evidence show Re-
spondent issued discipline to banquet department employees
during the relevant period as follows:

25 In following testimony, Braswell said Martinez “would inevitably
disappear” during banquet team assignments and named Hatfield as an
employee who reported Martinez’ absence.
26 Although Braswell claimed to have had no input into Respon-
dent’s employee selection, it is inconceivable that Respondent, which
did not hire all employees, would have hired blindly.
INITIALS
OF
EMPLOYEE
DATE AND TYPE
OF DISCIPLINE INCIDENT DESCRIPTION
CORRECTIVE
ACTION EXPECTED
JDE 1/17/04
written warning27
On 1/17/04 [JDE] was scheduled to work at 10 am. He no called or showed. Call 2 hours prior to
the scheduled shift.
KP 1/20/04
written warning
No Call/No Show on 1/19/04
MM 3/28/04
written warning
M. was out of his work area from 9:10–9:55. He did not have permission nor did he
request to leave.
Inform manager
when leaving the
work area.
EC 1/22/04
verbal warning
E was assigned to set a coffee break along with another associate. The break included
3 urns and condiments, as well as to go cups. All equipment was there in a timely
manner and the break took 2 hours to set. E should understand that assignments
should be carried out in an efficient and timely manner. This created a hardship on
remaining staff who were setting a lunch for 550 people.
ED 12/29/03
final written warn-
ing28
E was scheduled to work on 12-27-03. E did not call nor report to work as scheduled. Must call in 2 hours
prior to scheduled
shift if unable to
work
RD 12/29/03
final written warn-
ing
R was scheduled to work on 12-28-03. R did not call nor report to work as scheduled. Must call in 2 hours
prior to scheduled
shift if unable to
work

27 JDE also failed to call or show on January 18 and 19, and Respondent terminated him.
28 When ED was a no-call/no-show for the following day, December 28, 2003, Respondent terminated him.
HOTEL DEL CORONADO 317
SAL 2/05/04
final written warn-
ing
S no called/no showed for scheduled shift on Thursday 2-05-04 at 4:30 p.m.
AC 12/24/03
suspended,
recommended for
termination
A left the work place and did not return. A walked off the job on 12/24 without noti-
fying Manager.29
CV 1/27/03 suspen-
sion
. . . was not able to complete shift and refused the instructions from Security and
walked off the job on 1/26 . . . suspended pending investigation.30

29 AC had no prior warnings. It may be that AC self-terminated. Contreras testified that AC was no longer working at the Hotel because “[h]e
walked off the job.”
30 Respondent later terminated CV.
III. DISCUSSION
A. Refusal to Recognize and Bargain
Respondent does not dispute that it is a successor to Coro-
nado within the auspices of NLRB v. Burns Security Services,
406 U.S. 272 (1972). In its answer to the complaint, however,
Respondent denied the appropriateness of the unit, and in its
posthearing brief, Respondent argued that an unlawful neutral-
ity agreement and ensuing misconduct by the Union and Coro-
nado led to the certification of an inappropriate “fictional” unit.
David A. Hall, in his amicus curiae brief, argues that neutrality
agreements are “bargaining to organize” schemes, in which
employers agree to assist union organizing drives in exchange
for favorable union treatment. Such, he argues, constitutes
improper encouragement of union membership.
At the hearing, Respondent sought to introduce evidence that
the Stipulation for Certification Upon Consent Election Agree-
ment entered into by the Union and Coronado on October 9,
2003, was, essentially, an unlawfully contrived accord, owing
its existence to the parties’ adherence to an unlawful neutrality
agreement. Respondent also sought to adduce evidence to sup-
port its argument that the November 7, 2003 certification of
representation of employees should not be given effect, and that
the unit is an inappropriate grouping of employees for purposes
of collective bargaining. Respondent presented a comprehen-
sive offer of proof.
In ruling on Respondent’s offer of proof, I have considered
that the Board encourages voluntary union recognition as a
fundamental element of national labor policy. Dana Corp., 341
NLRB 1283, 1285–1286 (2004). The Board “seeks to balance
the competing goals of effectuating free choice while promot-
ing voluntary recognition and protecting the stability of collec-
tive-bargaining relationships.” Ford Center for the Performing
Arts, 328 NLRB 1 (1999). Moreover, the Board does not find
neutrality agreements between employers and unions, per se,
violate the Act. There is nothing in the neutrality agreement
herein to suggest that Coronado agreed to union organizational
tactics or procedures that in any way interfered with employ-
ees’ free choice. Further, there is nothing in Respondent’s offer
of proof to show the likely existence of any evidence of fraud
or collusion in either the negotiation of the neutrality agreement
or the agreement to a consent election. Respondent’s offer of
proof does not allege any special circumstances that would
require the Board to reexamine the decision made in the repre-
sentation proceeding. Since Respondent’s offer of proof failed
to raise any representation issue properly litigable in this unfair
labor practice proceeding, I rejected Respondent’s offer of
proof and declined to receive any testimony regarding the pro
priety of the neutrality agreement or the consent election
agreement.
As to the appropriateness of the unit, the Board refuses to al-
low relitigation of unit appropriateness where the intent behind
the parties’ unit stipulation is clear and unambiguous even if
the stipulated result differs from that which the Board would
reach. South Coast Hospice, 333 NLRB 198 (2001); Hampton
Inn Suites, 331 NLRB 238, 239 (2000); Otis Hospital, 219
NLRB 164, 165 (1975). As stated by the Board, “The initial
question is ‘whether the intent of the parties is unambiguously
manifested in the unit stipulation.’” Southwest Gas Corp., 305
NLRB 542 fn. 6 (1991). If the objective intent of the parties is
manifested, the Board gives effect to the agreement. [Citations
omitted.]” G & K Services, 340 NLRB 921, 922 (2003). See
also Genesis Health Ventures of West Virginia, L.P., 326
NLRB 1208 (1998) (“Where the parties’ intent is clear and
does not contravene any statutory provision or Board policy,
the Board holds the parties to their agreement. [Citation omit-
ted]”); Laidlaw Transit, Inc., 322 NLRB 895 (1997) (the Board
will not examine extrinsic evidence to determine parties’ intent
if the unit description is in clear and unambiguous terms).
Here, no ambiguity exists in the unit description, and the cer-
tification of representative is proper. Accordingly, as of No-
vember 7, 2003, the Union was the certified collective-
bargaining representative of Coronado’s employees in the unit.
Where, as here, Respondent, the successor employer, made a
conscious decision to maintain generally the same business and
to hire a majority of its employees from Coronado’s work
force, Respondent is obliged under Section 8(a)(5) of the Act to
recognize and bargain with the collective-bargaining represen-
tative of Coronado’s employees in the unit. Accordingly, I find
Respondent violated Section 8(a)(5) of the Act by its refusal to
recognize and bargain with the Union as the collective-
bargaining representative of its employees in the unit.
B. Independent Violations of Section 8(a)(1) of the Act
Section 8(a)(1) of the Act provides that “It shall be an unfair
labor practice for an employer . . . to interfere with, restrain or
coerce employees in the exercise of the rights guaranteed in
Section 7 [of the Act].” In considering communications from
an employer to employees, the Board applies the “objective
standard of whether the remark tends to interfere with the free
exercise of employee rights. The Board does not consider ei-
ther the motivation behind the remark or its actual effect.
Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
Communications from an employer to employees that threaten
reprisal for supporting a labor organization interfere with, re-
strain, or coerce employees as contemplated by Section 8(a)(1).
Manhattan Crowne Plaza Town Park Hotel Corp., 341 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD318
619 (2004); Grouse Mountain Lodge, 333 NLRB 1322 fn.
2 (2001). The Board has also found violations of Section
8(a)(1) by an employer’s disparaging or undermining the union
or its representatives. Prudential Insurance Co. of America,
317 NLRB 357 (1995); Oster Specialty Products, 315 NLRB
67 (1994). Employers, likewise, may violate Section 8(a)(1) by
stating that an employee was disciplined or terminated for en-
gaging in protected activities. Baker Electric, 317 NLRB 835
(1995). Further, “an employer violates Section 8(a)(1) of the
Act if its conduct may reasonably be said to have a tendency to
interfere with the free exercise of employee rights. Unbeliev-
able, Inc., 323 NLRB 815, 816 (1997).
By the following conduct, the following supervisors of Re-
spondent interfered with, restrained, and/or coerced employees
in violation of Section 8(a)(1) of the Act:
Eddie Ramirez
On December 18, 2003, Ramirez threatened to report Marti-
nez and coworkers to management because they were collect-
ing signatures on an employee petition. Such is an implied
threat of retaliation for engaging in protected activity.
On December 20, 2003, Ramirez told Garcia, “Joaquin, no
more union. Be careful.” On December 30, 2003, Ramirez
told Torres he could schedule him as he pleased, as there was
neither union nor seniority. On January 10, Ramirez told Gar-
cia the same thing. On other occasions, Ramirez told other
employees there was no union, and they should be careful not
to do the wrong thing. In fact, there was a union on the scene;
Respondent had recognized the Union as the representative of
its banquet department and other employees. Ramirez’ state-
ment could only have been intended to portray the union as
weak or ineffectual and to make clear that the employer alone
was in control. The statements further signaled an intention to
ignore the role of the Union as the representative of its employ-
ees and thereby warned employees of the futility of supporting
the Union. Such communications restrain employees in the
exercise of their right to support a union.
In the hearing of Perez, Ramirez told Jaramillo to “send
home the picket line guy.” The statement could reasonably be
expected to create in the employee’s mind a belief that another
employee was being sent home because of his union activity. It
is irrelevant that the supervisors may not have intended any
employee to overhear the conversation. Corporate Interiors,
Inc., 340 NLRB 732, 732–733 (2003).
On December 30, 2003, Ramirez told Torres what he was
doing was not helping him, and he should not use the [union]
buttons. The statement, especially when made in conjunction
with a discussion of why Torres was not being scheduled for
work, is an implied threat of retaliation for the protected activ-
ity of wearing union buttons. Ark Las Vegas Restaurant, 335
NLRB 1284 fn. 1 (2001).
Toby Graff
On December 21, 2003, Graff told Martinez he was being
temporarily demoted to DRA to teach him not to picket. On
December 25, 2003, Graff told Martinez he was sending him
home from work early to teach him not to picket. Informing an
employee that employment action has been taken for unlawful
reasons is coercive.
Matt Albert
On January 19, Albert told Garcia that picketing employees
were “making too many [sic] noise outside,” and warned, “You
guys better be careful because you know what happened with
Jonathan.” The warning could only have referred to Torres,
commonly known among employees as “Jonathan,” whom
Respondent had recently fired on January 14. The statement
constituted a none-too-subtle threat of retaliatory discharge of
employees who engaged in picketing.31
Michael Holst
On January 2, Holst told Martinez that he was not being
scheduled because he needed to learn not to picket.
Mark Braswell
On January 16, Braswell told Martinez that during his period
of discipline, he would have time to think about what he was
doing and learn not to picket. Braswell’s statement clearly
linked the imposed discipline to Martinez’ protected activities
and violates Section 8(a)(1) of the Act.
C. Violations of Section 8(a)(3) of the Act
The complaint alleges that Respondent violated the Section
8(a)(3) of the Act by the following conduct:
1. On December 21, 2003, temporarily demoting Mar-
tinez.
2. On December 25, 2003, suspending Martinez for
the remainder of his shift.
3. On January 14, discharging Torres.
4. On January 16, suspending Martinez pending ter-
mination.
5. On January 22, discharging Martinez.
In each of the above actions, the pivotal question is whether
unlawful consideration of the employees’ union activities
prompted Respondent to impose the discipline. For questions
of motivation in employer discipline, the Board has set up ana-
lytical guidelines. Under the Board’s decision in Wright Line,32
if the General Counsel’s evidence supports a reasonable infer-
ence that protected concerted activity was a catalyzing factor in
Respondent’s actions, the General Counsel has made an initial
showing of unlawful conduct.33 The burden of proof then shifts
to Respondent to establish persuasively by a preponderance34 of
the evidence that it would have made the same decision, even
in the absence of union activity. Avondale Industries, Inc., 329

31 At the hearing, Respondent moved to dismiss par. 16(a) of the
complaint as no evidence was adduced that Albert unlawfully informed
employees the Union was no longer at the Hotel. No such evidence
appearing, I have dismissed that allegation herein.
32 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
33 “The General Counsel must establish four elements by a prepon-
derance of the evidence. First, the General Counsel must show the
existence of activity protected by the Act. Second, the General Counsel
must prove that the respondent was aware that the employee had en-
gaged in such activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment action. Fourth,
the General Counsel must establish a motivational link, or nexus, be-
tween the employee’s protected activity and the adverse employment
action. [citation omitted].” American Gardens Management Co., 338
NLRB 644, 645 (2002).
34 A “preponderance” of evidence means that the proffered evidence
must be sufficient to permit the conclusion that the proposed finding is
more probable than not. McCormick Evidence, at 676–677 (1st ed.
1954).
HOTEL DEL CORONADO 319
NLRB 1064 (1999); T&J Trucking Co., 316 NLRB 771 (1995).
The burden shifts only if the General Counsel establishes that
protected conduct was a “substantial or motivating factor in the
employer’s decision.” Budrovich Contracting Co., 331 NLRB
1333, 1333 (2000). Put another way, “the General Counsel
must establish that the employees’ protected conduct was, in
fact, a motivating factor in the [employer’s] decision.” Webco
Industries, 334 NLRB 608 fn. 3 (2001).
The elements of discriminatory motivation are union activ-
ity, employer knowledge, and employer animus. Farmer Bros.
Co., 303 NLRB 638, 649 (1991). Here, these elements are
clearly met for both Torres and Martinez, the former of whom
engaged in the protected activities of picketing and wearing
union buttons, the latter of whom engaged in the protected ac-
tivities of picketing and collecting employee signatures on a
work-related petition. Respondent was well aware of Torres’
support for the Union it and disapproved of it as demonstrated
by Ramirez’ warning to Torres that he should not use the
[union] buttons. Ramirez’ warning to Torres that what he
was doing was not helping him, could only have related to
Torres’ union activities, and demonstrated both knowledge
and animosity. As for Martinez, both Graff and Ramirez
observed him collecting employee signatures, and Ramirez
threatened to report him for it. When demoting Martinez to
DRA on December 21, 2003, and sending him home early
on December 25, 2003, Graff ascribed the actions to a desire
to teach Martinez not to picket, as did Braswell when sus-
pending/terminating Martinez.
In these circumstances, I find the General Counsel has made
“an initial ‘showing sufficient to support the inference that
protected conduct was a motivating factor’” in Respondent’s
decision to discharge Torres and to demote, suspend, and dis-
charge Martinez. American Gardens Management Co., 338
NLRB at 645; Tom Rice Buick, Pontiac & GMC Truck, 334
NLRB 785, 786 fn. 6 (2001). This finding “does not mean that
[any action, including] discharge was in fact ‘unlawfully moti-
vated.’” American Gardens, supra at 645. As the Board has
noted, “The existence of protected activity, employer knowl-
edge of the same, and animus . . . may not, standing alone, pro-
vide the causal nexus sufficient to conclude that the protected
activity was a motivating factor for the adverse employment
action.” Shearer’s Foods, Inc., 340 NLRB 1093, 1094 fn. 4
(2003); see also American Gardens, supra at 645. However,
the General Counsel having met his initial burden, the burden
of proof shifts to Respondent to show the personnel actions
against Torres and Martinez would have (not just could have)
occurred even in the absence of their union support. Avondale
Industries, Inc., supra at 1066.
Discharge of Juan Torres
Respondent contends it discharged Torres for (1) his failure
to report to work on December 27, 2003, (2) poor performance,
and (3) job abandonment on January 5. During the first week
of Respondent’s Hotel management, it changed the weekly
banquet schedule period from Monday through Saturday to
Saturday through Friday. Torres inadvertently failed to note
the changed schedule and missed his scheduled shift on De-
cember 27, 2003. Respondent argues that Torres must have
known he was scheduled to work on December 27, 2003, and
its discharge of him for failing to work is nondiscriminatory. I
have accepted Torres’ assertion that he did not know he was
scheduled to work on December 27, 2003, but even if I
were to accept Respondent’s contention that Torres knowingly
missed a scheduled shift, I could not accept Respondent’s claim
that it fired him for that reason. As noted, Respondent never
sought an explanation from Torres’ for his missed shift or even
mentioned the matter to him until January 14 when Ramirez
cited the incident as one of the bases for discharge. The evi-
dence thus clearly establishes that the first basis for Torres’
discharge was either false or not relied upon and was conse-
quently pretextual. Golden State Foods Corp., 340 NLRB 382,
383 (2003).
The second basis, poor performance, is unsupported. As to
poor performance generally, both Braswell and Ramirez were
vague as noted above, and I cannot accept that either one con-
sidered Torres to be a poor worker. As for the specific example
Braswell and Ramirez gave of Torres’ New Year’s Eve failure
to respond to Ramirez’ radio calls, I have found both accounts
to be vague, inconsistent, and unreliable as described above. I
find Braswell and Ramirez either concocted or exaggerated an
incident too minor to have warranted supervisory attention in
order to bolster the discharge case against Torres. Such was
pretextual.
Respondent’s third charge against Torres of leaving early is
also flawed. Although Ramirez claimed Zambrano had denied
giving Torres permission to leave early, he told Braswell Zam-
brano had admitted giving permission. Although Braswell
initially insisted Torres knew Zambrano had no authority to
give such permission because Torres had earlier grieved a simi-
lar situation, later evidence established that Torres was not the
grievant, and there is no reliable evidence that Torres knew
Zambrano could not permit him to leave early. Although Re-
spondent asserts that Zambrano wrongfully gave permission to
Torres to leave early, there is no evidence Respondent so much
as reproved Zambrano for having done so until Respondent
issued him a written warning in March. By that time, the Un-
ion had filed unfair labor practices against Respondent, and,
under all the circumstances, it is reasonable to infer that the
written warning to Zambrano was another effort to bolster Re-
spondent’s defense. Such an inference is particularly warranted
since the written warning issued to Zambrano also cited leaving
work early on January 5 as an infraction although Ramirez,
who signed the warning, testified he had given Zambrano per-
mission to leave early that day. The contradictions and incon-
sistencies surrounding this charge against Torres show it was
also pretextual.
In sum, Respondent has failed to meet its burden to show it
would have discharged Torres notwithstanding his protected
activities and its animus thereto. Accordingly, I find Respon-
dent violated Section 8(a)(3) of the Act when it discharged
Torres.
Demotion, Suspension, and Discharge of Joel Martinez
Respondent demoted Martinez to DRA for one shift on De-
cember 21, 2003. The burden having shifted to Respondent to
show the demotion would have occurred even in the absence of
Martinez’ protected activities, Respondent must provide a per-
suasive rationale for the demotion. Although Respondent con-
tends it demoted Martinez because he had stolen a table from
another server, for the reasons noted above, I cannot accept that
explanation. Since Respondent’s asserted reason for demoting
Martinez fails, Respondent has not met its burden of proof, and
the General Counsel’s evidence of unlawful motivation pre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
vails. Accordingly, I find Respondent demoted Martinez to
DRA on December 21, 2003, because of his union activities in
violation of Section 8(a)(3) of the Act.
The General Counsel alleges Respondent unlawfully sus-
pended Martinez on December 25, 2003, by sending him home
early because of his union activities. As noted above, I have
credited Martinez’ testimony that Graff sent him home that day
with an admonition to “learn the lesson not to be on the picket
line.” Graff’s giving Martinez an unlawful reason for sending
him home strongly evidences unlawful motivation. Moreover,
for the reasons given earlier, I am unable to credit Graff’s ex-
planation for sending Martinez home. Accordingly, Respon-
dent has not met its burden of proof, and the General Counsel’s
evidence of unlawful motivation prevails. I find Respondent
temporarily suspended Martinez on December 25, 2003, in
violation of Section 8(a)(3) of the Act.
The General Counsel alleges that Martinez’ suspension of
January 16 and his discharge of January 22 were discrimina-
tory. Respondent contends it suspended and then discharged
Martinez for two principal, nondiscriminatory reasons: (1) Mar-
tinez’ dishonesty in initially denying leaving work without
permission and his dishonesty in claiming that a union steward,
Donaldson, had said Respondent was trying to fire Martinez,
(2) Martinez’ abandoning his job on January 9. As to Respon-
dent’s contention regarding dishonesty, I cannot conclude Re-
spondent had any genuine concern about Martinez’ alleged
misrepresentation of a conversation with a union steward. Re-
spondent made no reference to dishonesty on the January 16
Disciplinary Action Report issued to Martinez, and Respon-
dent’s focus on dishonesty appears to be very much an after-
thought. I find Respondent’s position to be weakened by as-
serting an invalid basis for discharge. As to the contention
regarding initial false denial of leaving early, it is clear Re-
spondent had made its suspension/termination decision before
Martinez ever denied misconduct, and his denial cannot, there-
fore, have been a factor in the discipline.
Respondent’s contention regarding job abandonment has
more substance. As set forth above, I have found Martinez did,
in fact, leave work on January 9, ignoring a supervisory direc-
tive to do silverware rollups. Counsel for the General Counsel
argues the discharge was a suspiciously harsh consequence for
leaving work, but I cannot agree. I find Martinez’ intentional
flouting of a work order could well constitute a legitimate basis
for discharge. It is not for the Board to decide “whether a non-
discriminatory reason for discharging an employee is wise or
well supported,”35 and it is well established the Board “cannot
substitute its judgment for that of the employer and decide what
constitutes appropriate discipline.”36 Nonetheless, the Board’s
role is to ascertain whether an employer’s proffered reasons for
disciplinary action are the actual ones. Ibid. In determining
Respondent’s actual motivation for discharging Martinez, I
have considered, as discussed below, Respondent’s animus
toward Martinez, its alleged bases for his final suspension and
discharge, and its discipline of other employees.
It is clear Respondent bore considerable animus toward Mar-
tinez for his protected activities. However, the fact that an
employer may desire to retaliate against employees or to curtail
union activities does not, of itself, establish the illegality of a

35 West Limited Corp., 330 NLRB 527 fn. 5 (2000).
36 Detroit Paneling Systems, Inc., 330 NLRB 1170, 1171 fn. 6
(2000), and cases cited therein.
discharge. If an employee provides an employer with sufficient
cause for dismissal by engaging in conduct that would, in any
event, have resulted in termination, the fact the employer wel-
comes the opportunity does not render the discharge unlawful.
Avondale Industries, Inc., supra; Klate Holt Co., 161 NLRB
1606, 1612 (1966).
At the hearing, Respondent offered evidence of numerous
problems with Martinez’ work prior to his suspension/discharge
as support for its action. According to Braswell, Martinez had
a proclivity for stealing tables, one instance of which Braswell
observed sometime in the latter part of 2003. Braswell also
thought Martinez did not address his tables quickly enough and
claimed Martinez “inevitably” disappeared during his shift.
Braswell also complained that Martinez had, in the past, un-
truthfully told Braswell he had permission to be away from his
assigned banquet room. Graff testified that Martinez was the
object of frequent table-stealing complaints from other servers
and that no one liked to work with him because he was rude
and uncooperative. Both Graff and Braswell named Hatfield as
a server who complained about Martinez. However, neither she
nor any other disinterested party testified about Martinez’ al-
leged misconduct. In fact, none of these complaints was sub-
stantiated, and none resulted in any discipline. Moreover, if the
described misconduct had in fact occurred, it was well before
Respondent’s takeover of the Hotel, and Braswell testified that
employees hired by Respondent on December 18, 2003, had
started with a new slate. I can only infer from Respondent’s
alleging past, unsubstantiated, and undisciplined misconduct as
a basis for Martinez’ discharge that Respondent, in preparing a
defense against the instant charges, threw as many accusations
against Martinez as it could conceive, hoping some of them
would stick. Respondent’s disingenuousness as to Martinez’
past performance strongly suggests its motive in suspending
Martinez on January 16 and discharging him on January 22 was
unlawful.
In evaluating Respondent bases for discharging Martinez, I
have also considered Respondent’s discipline of other employ-
ees. There is no evidence of Respondent having dealt with any
employee in the same situation as Martinez, i.e., reporting to
work to find an assignment cancelled and leaving work without
performing an alternate assignment. The disciplinary records in
evidence for employees of the banquet department during the
relevant period show that Respondent has issued written warn-
ings to employees for not reporting to work as scheduled (no-
call/no show). Employees who walk off the job have been
dealt with more summarily: two employees, identified herein as
AC and CV, walked off the job; both were suspended, and both
were terminated. There is no evidence either had prior warn-
ings. From this disciplinary evidence, it is apparent Respon-
dent viewed employees’ no-call/no-shows as less egregious
than walking off the job. The former generated warnings, the
latter terminations. The question is to which category Marti-
nez’ conduct on January 9 can be more closely analogized.
It might be argued that Martinez’ conduct in failing to appear
in the banquet office to roll up silverware as directed on Janu-
ary 9 was comparable to a no-call/no-show, i.e., Respondent
gave Martinez an assignment, and he failed to show up for it,
just as a no-show/no-call fails to appear for a scheduled shift.
If that view were accepted, then the appropriate discipline,
based on Respondent’s past practice, would be a written warn-
ing. On the other hand, Martinez’ conduct can arguably be
compared to walking off the job, i.e., he appeared for work at
HOTEL DEL CORONADO 321
the Hotel and, after being given an assignment, left the Hotel
without permission and without carrying out the assignment. If
that view were accepted, Respondent’s past practice would
decree discharge as the appropriate discipline.
Martinez’ January 9 behavior is not clearly analogous to ei-
ther no-show/no-call or walking-off-the-job conduct. While
no-call/no-shows never appear at the Hotel to work their shifts,
Martinez actually arrived at the Hotel, albeit not to roll up sil-
verware, and then left contrary to supervisory direction. Re-
spondent might reasonably regard this conduct as more insub-
ordinate than simply not reporting to work. Neither, however,
does walking-off-the-job clearly describe Martinez’ behavior.
There are significant differences between the misconduct of AC
and CV, which resulted in their terminations, and that of Marti-
nez. Martinez did not walk off the job during a regularly
scheduled shift. Rather, he reported to work as scheduled to
find his event had been canceled. Jaramillo then directed Mar-
tinez to roll silverware, a job entirely different from the one he
had been scheduled to perform and for which he reported to
work. Martinez had not commenced any work for Respondent
before leaving the Hotel; he had not even punched in. Given
these facts, I cannot find Martinez’ conduct comparable to ei-
ther that of no-call/no-shows or that of employees who walk off
the job, and I cannot use the discipline meted to them as a para-
digm for Martinez’ discipline. I do not, therefore, find that
based on past disciplinary practice, Respondent would have
discharged Martinez for his January 9 actions.
I have found Martinez intentionally did not comply with
Jaramillo’s January 9 direction to roll silverware but instead left
the Hotel. I also find his doing so was grounds for discipline,
perhaps even discharge. But the question is not whether Re-
spondent could have discharged Martinez for his conduct but
whether Respondent did, in fact, do so. In other words, Re-
spondent’s motive in discharging Martinez must be determined.
In reaching my conclusion as to Respondent’s motive, I have
considered Respondent’s witnesses’ credibility deficiencies as
detailed above, Respondent’s unreliable cataloging of other
alleged misconduct by Martinez, and Respondent’s 8(a)(1)
conduct. I have also considered that, in contrast to AC and
CV’s terminations, both of which were effected within a day of
their walking off the job, Respondent engaged in inexplicable
delay in suspending/terminating Martinez. Thus, Martinez
worked on January 10 and 11, and was requested to work on
January 12, without any supervisor mentioning the January 9
incident to him. Finally, I have credited Martinez’ testimony
that when alone with Braswell during the discipline meeting on
January 16, Braswell told him the discipline would teach him
not to picket. Braswell’s statement clearly links the imposed
discipline to Martinez’ protected activities and provides com-
pelling evidence of Respondent’s unlawful motive.
In these circumstances, I find Respondent did not meet its
burden of proving that it would have suspended and later ter-
minated Martinez even in the absence of his protected activi-
ties. Accordingly, I find Respondent violated Section 8(a)(3)
and (1) of the Act by suspending and terminating Martinez on
January 16 and 22, respectively.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by
(a) Impliedly threatening employees with retaliation for en-
gaging in the protected activity of circulating and/or signing an
employee petition regarding terms and conditions of employ-
ment.
(b) Impliedly threatening employees with retaliation for en-
gaging in the protected activity of wearing union buttons.
(c) Restraining and coercing employees in the exercise of
their Section 7 rights by portraying the Union, their collective-
bargaining representative, as weak or ineffectual or conveying
the impression that Respondent alone is in control of employ-
ees’ terms and conditions of employment and thereby warning
employees of the futility of supporting the Union.
(d) Restraining and coercing employees in the exercise of
their Section 7 rights by directing that an employee be sent
home for engaging in protected activity.
(e) Telling an employee he was temporarily demoted to
teach him not to engage in the protected activity of picket-
ing.
(f) Telling an employee he was being sent home from
work early to teach him not to engage in the protected activ-
ity of picketing.
(g) Restraining and coercing employees in the exercise of
their Section 7 rights by warning an employee that picketing
employees were making too much noise outside.
(h) Impliedly threatening retaliation for engaging in the pro-
tected activity of picketing by reminding an employee about
the discharge of another employee.
(i) Telling an employee that a suspension/termination
would give him time to think about engaging in protected
activity and teach him not to picket.
2. Respondent violated Section 8(a)(3) and (1) of the Act on
January 14 by discriminatorily discharging Juan Torres.
3. Respondent violated Section 8(a)(3) and (1) of the Act on
December 21 and 25, 2003, January 16 and 22 by, respectively,
discriminatorily demoting, discriminatorily temporarily sus-
pending, suspending, and discharging Joel Martinez.
4. The following unit of Respondent’s employees is appro-
priate for collective-bargaining purposes within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time elevator operators, store-
room specialists, spa attendants and facilities employees em-
ployed by Respondent at its facility located at 1500 Orange
Avenue, Coronado, California.
5. The Union has been at all times since November 7, 2003,
and is now, the exclusive bargaining representative of the em-
ployees in the above-described unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the Act.
6. Respondent has violated Section 8(a)(5) and (1) of the
Act since December 31, 2003 by failing and refusing to recog-
nize and bargain with the Union as the exclusive bargaining
representative of its employees in the above-described unit.
7. The unfair labor practices set forth above affect com-
merce within the meaning of Section 8(a)(1), (3), and (5) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having discriminatorily discharged Juan Torres
and Joel Martinez, it must offer them reinstatement insofar as it
has not already done so and make them whole for any loss of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD322
earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). Respon-
dent having discriminatorily demoted and suspended Joel Mar-
tinez, it must make him whole for any loss of earnings and
other benefits suffered as a result thereof. The recommended
Order will also provide that Respondent bargain in good faith
with the Union as the exclusive collective-bargaining represen-
tative of the above-described unit.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended37
ORDER
The Respondent, KSL DC Management, LLC d/b/a Hotel
del Coronado, Coronado, California, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union as the exclusive bargaining representative of its employ-
ees in the above-described unit.
(b) Demoting, suspending, or discharging any employee for
engaging in union or other concerted protected activities.
(c) Impliedly threatening employees with retaliation for en-
gaging in the protected activity of circulating and/or signing an
employee petition regarding terms and conditions of employ-
ment.
(d) Impliedly threatening employees with retaliation for en-
gaging in the protected activity of wearing union buttons.
(e) Restraining and coercing employees in the exercise of
their Section 7 rights by portraying the Union, their collective-
bargaining representative, as weak or ineffectual or conveying
the impression that Respondent alone is in control of employ-
ees’ terms and conditions of employment and thereby warning
employees of the futility of supporting the Union.
(f) Restraining and coercing employees in the exercise of
their Section 7 rights by directing that an employee be sent
home for engaging in union or other concerted protected activ-
ity.
(g) Restraining and coercing employees in the exercise of
their Section 7 rights by telling employees they are being
disciplined to discourage their protected activities.
(h) Restraining and coercing employees in the exercise of
their Section 7 rights by warning that picketing employees
are making too much noise.
(i) Impliedly threatening retaliation for engaging in the pro-
tected activity of picketing by reminding an employee about
the discharge of another employee.
(j) Telling an employee that a suspension/termination
would give him time to think about engaging in protected
activity and teach him not to picket.
(k) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

37
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) On request, bargain with the Hotel Employees and Res-
taurant Employees International Union, Local 30, AFL–CIO,
CLC as the exclusive representative of the employees in the
following appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time elevator operators, store-
room specialists, spa attendants and facilities employees em-
ployed by Respondent at its facility located at 1500 Orange
Avenue, Coronado, California.
(b) Within 14 days from the date of this Order, insofar as it
has not already done so, offer Juan Torres and Joel Martinez
full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(c) Make Juan Torres and Joel Martinez whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the remedy
section of the decision.
(d) Expunge from its files any reference to the unlawful dis-
charges or other discipline of Juan Torres and Joel Martinez
and thereafter notify them in writing that this has been done and
that the discharges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, 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 this Order.
(f) Within 14 days after service by the Region, post at its ho-
tel in Coronado, California copies (in English and Spanish) of
the attached notice marked “Appendix.”38 Copies of the notice,
on forms provided by the Regional Director for Region 21 after
being signed by Respondent’s authorized representative, shall
be posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Re-
spondent at any time since December 18, 2003.
(g) 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
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-

38 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
HOTEL DEL CORONADO 323
far as it alleges violations of the Act not specifically found. 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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything that interferes with these rights.
More particularly,
WE WILL NOT fail and refuse to recognize and bargain with
the Hotel Employees and Restaurant Employees International
Union, Local 30, AFL–CIO, CLC (the Union) as the exclusive
bargaining representative of its employees in the following
unit:
All full-time and regular part-time elevator operators, store-
room specialists, spa attendants and facilities employees em-
ployed by Respondent at its facility located at 1500 Orange
Avenue, Coronado, California.
WE WILL NOT discharge or demote or suspend or otherwise
discipline any of you for supporting the Union or participating
in other concerted protected activities.
WE WILL NOT impliedly threaten you with retaliation for en-
gaging in the protected activity of circulating and/or signing an
employee petition regarding terms and conditions of employ-
ment.
WE WILL NOT impliedly threaten you with retaliation for en-
gaging in the protected activity of wearing union buttons.
WE WILL NOT impliedly threaten you with retaliation for en-
gaging in the protected activity of picketing.
WE WILL NOT portray the Union as weak or ineffectual or
suggest that it is useless to support the Union.
WE WILL NOT direct that an employee be sent home for en-
gaging in the protected activity of picketing.
WE WILL NOT tell employees they are being disciplined to
discourage their protected activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights listed
above.
WE WILL, on request, bargain with the Union and put in writ-
ing and sign any agreement reached on terms and conditions of
employment for our employees in the above-described bargain-
ing unit.
WE WILL, within 14 days from the date of the Board’s Order,
insofar as we have not already done so, offer Juan Torres and
Joel Martinez full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Juan Torres and Joel Martinez whole for any
loss of earnings and other benefits resulting from their unlawful
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD324
discharges and other discipline, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
and discipline of Juan Torres and Joel Martinez and WE WILL,
within 3 days thereafter, notify them in writing that this has
been done and that the discharges and discipline will not be
used against them in any way.
KSL DC MANAGEMENT, LLC D/B/A HOTEL