Hyatt Hotels Corporation d/b/a Hyatt Regency Scottsdale

National Labor Relations Board - Administrative Judge Opinions

Jul 31, 2014

28-CA-112474 (N.L.R.B. Jul. 31, 2014)

JD(SF)–29–14
Scottsdale, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
HYATT CORPORATION d/b/a
HYATT REGENCY SCOTTSDALE
Respondent
and Case 28-CA-112474
CHRIS WELCH, an Individual
Charging Party
William Mabry III, Esq., for the General Counsel
Thomas M. Stanek, Esq., for the Respondent
DECISION
STATEMENT OF THE CASE
Dickie Montemayor, Administrative Law Judge. This case was tried before me on
March 4-6, 2014, in Phoenix, Arizona. Chris Welch (Charging Party) filed a charge on
September 3, 2013, alleging violations by Hyatt Corporation d/b/a Hyatt Regency Scottsdale (the
Respondent) of Section 8(a)(1) of the National Labor Relations Act, as amended (the Act).
Respondent filed an answer denying that it violated the Act. The parties were given full
opportunity to participate, to introduce relevant evidence, to examine and cross examine
witnesses, and to file briefs. I carefully observed the demeanor of witnesses as they testified and
I rely on those observations here. I have studied the whole record, and based upon the detailed
findings and analysis below, I conclude that the Respondent violated the Act as alleged.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits and I find that:
1. (a) At all material times, Respondent has been a Delaware corporation with an office
and place of business in Scottsdale, Arizona (Respondent’s facility) and has been
engaged in the business of operating hotels and providing food and lodging.
JD(SF)–29–14
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(b) In conducting its operations during the 12-month period ending September 3,
2013, Respondent purchased and received at Respondent’s facility goods valued in excess of
$50,000 directly from points outside the State of Arizona.
5
(c) In conducting its operations during the 12-month period ending September 3,
2013, Respondent derived gross revenues in excess of $500,000.
(d) At all material times, Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.10
2. At all material times, the following individuals held the positions set forth
opposite their respective names and have been supervisors of Respondent within the meaning of
Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the
Act:15
Jon Rosenthal - Alto Ristorante Manager
Jeff Chetty - Assistant Food & Beverage Director
Donna Lowell - Human Resources Director
20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Chris Welch was employed as a fine dining server in Respondent’s Alto Ristorante. He 25
began his employment on January 19, 2006, and worked until his discharge on March 7, 2013.
(Tr. 92:1). His job was that of a “liaison” between the kitchen and hotel. His duties included
taking orders, serving food, bringing drinks and serving as an “ambassador for Hyatt hotels.”
(Tr. 92:6-12). His immediate supervisor was Jon Rosenthal the manager of the Alto Ristorante.
(Tr. 37:2). Jeff Chetty was the assistant food and beverage manager, Carlos Morales was the 30
food and beverage director, and Donna Lowell was Respondent’s human resources director.
B. Chris Welch Complains About Terms and Conditions of Employment
Respondent had in place a regular practice of conducting pre-shift meetings. At these 35
pre-shift meetings, various topics were discussed regarding the operation of the facility during
that particular shift including rotation of tables, assigned sections, special events and other
matters. Normally, the meetings were attended by between four to eight employees depending
upon who was scheduled to work that evening. At the time, Respondent had in place a sick leave
policy which provided that regular full-time employees were eligible to receive paid sick days 40
after 90 days of service, directly related to their respective length of service. (GC Exh. 3:21)
Part-time employees were not eligible for paid sick time, and if a part-time employee missed
work due to illness, that employee was subject to counseling, the first step in Respondent’s
disciplinary process. (GC Exh. 3:36; Tr. 43:8).
45
JD(SF)–29–14
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During one of the pre-shift meetings sometime in January or February 2013, one of the
part-time staff members, John Meeske had been out sick and Rosenthal was “refreshing” sick
leave policy with staff. (Tr. 42:21). Charging Party raised his concerns regarding the sick leave
policy. (Tr. 42:17--25). Specifically, Charging Party made known his belief that the policy was
unfair not only because part-time employees did not receive paid sick leave but also that it was 5
unfair to “document” and or “coach” part-time employees for being sick. (Tr. 43:3). Charging
Party expressed his disagreement with part-time employees being written up for being sick.
(Tr:44:6--10). His concern was that if employees were written up for being sick, the policy
would essentially force them to work while sick. (Tr. 102--103). This he believed was a
violation of the food safety manual for food service workers. (GC Exh. 5). 10
This wasn’t the first time Charging Party raised workplace issues during the pre-shift
meetings and general discussions. On other occasions, he expressed his concerns regarding
Respondent’s policy of applying a gratuity to the total amount of the bill including the sales tax
portion. (Tr. 95). He also expressed concerns regarding the propriety of reselling to new
customers unused portions of alcohol that was previously purchased by other customers. (Tr. 15
97:2--15). On another occasion, he expressed concerns regarding what he perceived to be unfair
rotation of shifts and the distribution of large parties. (Tr. 73:4--6).
On March 6, 2013, Charging Party attended a pre-shift meeting with Rosenthal and other
employees. At this meeting, Rosenthal complained about being feverish, having the chills and 20
having strong headaches. (Tr. 344:16--345:3). He joked that maybe he caught something from
another employee who had been ill in the prior weeks. Charging Party responded, “well that’s
why you don’t make people work while they’re sick. The thing stays in the building and
everybody gets sick.” (Tr. 109:12--21). There was a pause and Rosenthal tilted his head down
and stared intensely at Charging Party. (Tr. 109:23-25). The meeting ended without further 25
incident.
C. The Events of the Evening of March 6, 2013
After the meeting, Charging Party began his regular shift and was scheduled to work 30
from 4 p.m. until the restaurant closed. (Tr: 49:1--7). Charging Party was assigned to work table
65 which was occupied by two male guests and two female guests. (Tr. 170:1--8). Charging
Party served the table a bottle of wine. Thereafter the female guests departed for the evening.
(Tr. 110). Charging Party recounted the events of the evening as follows:
35
And as soon as their wives left, he asked me to -- he said, "You know what, go get four of
the most expensive shots of tequila that you have." And I told him, "Well, they're going
to be about $250 apiece." And they said, "Well, all right. Well, get something nice. You
know, maybe something around $50." I said, "Okay." So I went to the bar. At that time
our bartender, Stephen Marshall was no longer there. And the protocol, I type it into the 40
computer and it prints up a ticket. I then take that ticket to the main bar, the Center Stage
Bar. I took it directly to the manager, the bar manager at the time. His name is Jonas.
Handed him the ticket.
This is, you know, very expensive liquor. It's under lock and key. And we had to walk in 45
back -- part of the hotel we call the bowling alley where there's a -- kind of a liquor
JD(SF)–29–14
4
storeroom. And it was there where we got the bottle, poured the shots, poured four shots,
and then took it to the -- to the gentleman that ordered it.
They then took two for themselves and gave two to these two women that were at a table
right next to them right after their wives left, and they basically started hitting on them. 5
And being jovial, joking around, and they were asking why -- you know, why is tequila --
you know, what's -- what's $50 of tequila -- why is -- why does it taste -- you know, what
goes into it? So I tell them it's like an aged Scotch where they're aged in barrels, there's a
very limited amount of that particular tequila, it's a type of thing that you sip. It's not like
doing shots, you -- you sip on it and taste it and -- and told them that -- what goes into it.10
And they said, "Well, it seems like you enjoy this type of thing. Can we buy you a shot?"
And I said, "Well, you know, I don't know. Let me go ask." It was at that point I go into
Jon Rosenthal's office and he was saying, "What's going on, you know, out there?" And
he could see that they were a lively bunch and, you know, there's quite a -- there's a bit of 15
drama ensuing. And I basically said, "You know, they offered to buy me a shot." And he
said, "Well, especially it's" -- "it's not even wine." You know, he was uncomfortable
with that and he told me not to do it. So I go out –
Q Let me stop you there. When you came into his office, did you tell him that you had 20
taken a shot?
A No. Me -- no. I said that they had offered to give me a shot.
Q What happened next? 25
A He told me that especially because it wasn't wine that he was uncomfortable with that
and not to do it. So I said, "Okay." So I went out, I told the guests, you know, "Thanks
but no thanks. You know, you're going to get me in trouble if I do that." And so I didn't.
30
They then -- they were there for a few -- a bit longer. They were talking with the girls
whom they had bought the shots for. And I still had a couple of other tables closing out.
There's closing duties that you go about in the restaurant; polishing silverware, putting
the different, you know, linens and setting things up, away. So I went about those duties.
Everybody in the restaurant sort of trickled out and the last -- the two gentlemen that 35
ordered the original four shots were the last people in the restaurant. And they walked
from their table up in the direction of their room and met me at the Cantina Due bar.
At that time there was no bartender. Everything had been locked up. There was
nothing -- no alcohol available. They said, "Hey, we'd like to close out. We" -- "Can we 40
have another round for the road and we'll sign the check for you?" I said, "Sure." So I
rang in two more shots for these gentlemen, took the ticket back to Jonas, the bar
manager, who poured two bottles -- or two -- two shots. I brought the glasses from the
Cantina Due, our bar. The glasses are out just on the shelves. The liquor's the only thing
that gets -- liquor and wine's the only thing that gets locked up. 45
So I took the glasses, got the shots, came back, gave it to the gentlemen. They were still
JD(SF)–29–14
5
just talking, having a good time, talking about lots of things and saying, "Hey, you know,
are you sure you don't want a shot? You know, the manager's not around." I said, "No.
You know, it's going to get me in trouble. And, you know, I'm 31 I don't" -- "I don't need
to get a DUI on my way home from here. You know, thanks but no thanks." They go,
"Well, come on, what if I gave you $100?" I was like, "Well, that's -- "that's tempting," 5
but, you know, I declined.
They were saying, "Oh, well, you know, it's rude not to. Why not? You know, he's
offering you this." You know, just kind of joking around being kind of an obnoxious
drunk, so to speak. So I grabbed a little glass and there's a gun on just about every bar 10
that has soda, ginger ale, Coke, diet Coke, flat water, things like that. And I just spritzed
just a tiny little thing in the glass and said, "hey, cheers. Thank you very much for
coming in. My name's Chris. If you ever come back, I would, you know, like to take
care of you again. Congratulations on your good fortune. Thank you very much." They
took the check. They did give me a very nice tip. And that was pretty much the extent of 15
dealing with those guests.
Q What did you spritz in your -- in your glass?
A Ginger ale. It's labeled G on the gun. There is no alcohol on the gun available. It's 20
all soft drinks.
Q Was your glass the same as the guests' glasses?
A Yes. (Tr. 110-114:1-14). 25
Charging Party’s toast with the guests was witnessed by Rosenthal. Charging Party was
thereafter called into Rosenthal’s office where he was confronted about drinking with the guests.
He explained to Rosenthal that he did not drink alcohol and offered to take a drug/alcohol test to
prove that he had not. (Tr. 115:9-17). 30
D. Chris Welch is Discharged
The following day when Charging Party arrived at work, Rosenthal escorted him to the
human resources director’s office. When he arrived, he was handed a peer review counseling 35
form and then was questioned about the events of the prior evening. (Resp. Exh. 7). The form
had been completed prior to the meeting and the box on the form entitled “separation of
Employment” was checked. The description of the incident included a typed portion that stated
that at approximately 11:30 Charging Party was observed “taking a shot of tequila with guests.”
(R. Ex. 7). Donna Lowell asked him if he had taken a shot of tequila with guests. He testified as 40
follows regarding what happened next:
I said that I did not, "that that would be, you know, a mistake. I don't need to get a DUI.
I'm 31. Jon was uncomfortable with it." And at that point I said, you know, "This is" --
"what I really think this is about -- because I've noticed changes. I've been here for seven 45
years. Things are different. You know, I'm being treated differently. It's a red flag. And
what I really believe all of this is about is me complaining about the sick [leave] policy,
JD(SF)–29–14
6
reselling the alcohol and the added sales tax on all of the gratuity."
Q And -- and did anybody respond to you saying that?
A It -- basically -- sort of. Jon basically got very irate. He turned red and just sort of --5
for lack of a better word, he -- I was basically -- you know, filibuster. He just kept
screaming and yelling. Would not answer any of the -- answer to any of the claims that I
had made.

And it was at that point Donna quickly gets up. And I remember her hands shaking. She 10
grabs my food handler's card, comes down and gives it to me and says, "Well, you know,
Jon's the manager. It's his testimony. I think clearly at this point it's" -- "we just need to
part ways.”
(TR. 119:23-25, 120-1-25).
15
After Welch denied having violated the policy and expressed his belief as to the real
reason for what he realized was going to be his termination, Lowell requested that he sign the
peer review counseling form (the termination form). He refused and was “showed the door.”
(Tr. 120: 24).
20
The above facts as recounted by Charging Party are undisputed in many respects. There
is no dispute regarding the fact that Charging Party was serving individuals who offered to buy
him a shot of tequila. There is no dispute that he approached his manager to speak to him about
it. There is no dispute that after speaking with his manager, he went out to the guests and
continued to serve them. There is no dispute that Charging Party was unable to pour his own 25
liquor because it was kept under lock and key and that a bartender had to pour any drinks. There
is also no dispute regarding whether Charging Party drank a liquid from a glass that resembled
the same snifter glasses that the guests were drinking out of. There is no dispute that the next
day Charging Party was called into the office and after meeting with Lowell and Rosenthal was
terminated. 30
What is in dispute is whether Charging Party was in fact drinking alcohol (or as he
testified was drinking ginger ale), and whether he admitted to Rosenthal and Lowell that he
drank a shot or shots. After carefully considering the evidence of record, and as will be
discussed in more detail below, I credit the testimony of Charging Party and do not credit the 35
testimony of Rosenthal or Lowell regarding these basic disputed questions of fact.1 Charging
Party was subjected to adept and skillful cross examination yet at all times remained composed
and confident and his testimony was convincing. He very easily could have advanced his
interests by denying drinking anything altogether. Instead, he candidly admitted that he drank out
of the snifter glass. 40

1 Similar findings were made in the unemployment compensation hearing. Although admissible but
not controlling, the decision specifically found that “the supervisor testified that he observed the claimant
drinking a substance, but no evidence was offered as to how he knew what that substance was.” (GC
Exh. 6 p. 3). See Cardiovascular Consultants of Nevada, 323 NLRB 67 (1997).
JD(SF)–29–14
7
I find that Charging Party was confronted with a difficult situation with difficult guests
which required an on the spot creative solution. His solution was to toast the guests with ginger
ale which balanced the interest of serving as a good “ambassador,” complying with the wishes of
his manager that he not drink alcohol, while at the same time keeping in mind his own interest of
maximizing his gratuity. It should be noted that it was a requirement of his position description 5
to proactively seek opportunities to delight guests and co-workers, and creatively identify
solutions when problems occur. (Resp. Exh. 12). In keeping with the letter and spirit of his
position description, I find this is exactly what he did.
E. Analysis10
In order to determine whether an adverse employment action was effected for prohibited
reasons, the Board applies the analysis articulated in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982), approved in NLRB v.
Transportation Mgmt. Corp., 462 U.S. 393 (1983).15
To establish an unlawful discharge under Wright Line, the General Counsel must first
prove, by a preponderance of the evidence, that the employee's protected activities were a
substantial or motivating factor in the employer's decision to take action against them. Manno
Electric, Inc., 321 NLRB 278, 280 (1996). The General Counsel makes a showing of 20
discriminatory motivation by proving the employee's protected activity, employer knowledge of
that activity, and animus against the employee's protected conduct. Naomi Knitting Plant, 328
NLRB 1279, 1281 (1999). Proof of an employer's motive can be based upon direct evidence or
can be inferred from circumstantial evidence, based on the record as a whole. Ronin
Shipbuilding, 330 NLRB 464 (2000); Robert Orr/Sysco Food Services, 343 NLRB 1183 (2004).25
If the General Counsel is successful, the burden of persuasion then shifts to the employer
to show that it would have taken the same action even in the absence of the employee's protected
activities. Wright Line, 251 NLRB at 1089; Septix Waste, Inc., 346 NLRB 494, 496 (2006);
Williamette Industries, 341 NLRB 560, 563 (2004). 30
Once the General Counsel has met its initial burden under Wright Line, an employer does
not satisfy its burden merely by stating a legitimate reason for the action taken, but instead must
persuade by a preponderance of the credible evidence that it would have taken the same action in
the absence of the protected conduct. T&J Trucking Co., 316 NLRB 771 (1995); Manno Electric, 35
Inc., 321 NLRB at 280 fn. 12 (1996).
In applying Wright Line the Board has cautioned that “a judge's personal belief that the
employer's legitimate reason was sufficient to warrant the action taken [cannot be] a substitute
for evidence that the employer would have relied on this reason alone.” Ingramo Enterprise, 351 40
NLRB 1337, 1338, fn. 10 (2007), rev. denied 310 Fed. Appx. 452 (2d Cir. 2009).
The Board has also reminded that “[a]n employer has the right to determine when
discipline is warranted and in what form . . . . The Board's role is only to evaluate whether the
reasons the employer proffered for the discipline were the actual reasons or mere pretexts.” Cast-45
Matic Corp., 350 NLRB 1349, 1358-1359 (2007).
JD(SF)–29–14
8
Applying the law to the facts of the case, I find that the General Counsel has established a
prima facie case. It is undisputed in this record that Charging Party engaged in protected and
concerted activity when he complained about work policies including the sick leave policy that
applied to part-time workers at the facility. See Chromalloy Gas Turbine Co., 331 NLRB 858,
863 (2000) enfd. 262 F.3d 184, 190 (2nd Cir. 2001). See also, Worldmark by Windham, 356 5
NLRB No.104 (2011). Thus, I find that the first element of the prima facie case has been met.
The second element of the prima facie case is also met as it is undisputed that the
employer was aware of Charging Party’s complaints. This is necessarily true because the
complaints were made during the open pre-shift meetings when not only the manager but other 10
employees were present.
The third element of the prima facie case is also met as the discharge took place within a
time frame in which improper motives can be inferred. Charging Party’s discharge was set in
motion the very day he complained about sick leave policies and effectuated the day after. I find 15
the timing of the discharge sufficient to support an inference of animus. See Sawyer of Napa,
300 NLRB 131 (1990); Olathe Health Care Center, 314 NLRB 54 (1994); Daniel Construction
Co.; 264 NLRB 569 (1982), enfd. 731 F.2d 191 (2nd Cir. 1984). This inference is further
supported by the direct expression of anger by Rosenthal at the time of Charging Party’s
discharge. Rosenthal erupted in anger when Charging Party confronted him with what he 20
believed were the true reasons for his discharge, his having engaged in protected activity. I find
Rosenthal’s anger tied directly to Charging Party’s clear opposition to being terminated for
engaging in protected activity is a clear expression of animus. As will be discussed in more
detail below, other evidence of animus is found in the fabrication of evidence to support the
termination. 25
Having concluded that the General Counsel satisfied his initial burden under Wright Line,
the burden shifts to the Respondent to prove, as an affirmative defense, that it would have
discharged Charging Party even in the absence of his protected activities. This burden may not
be satisfied by proffered reasons that are found to be pretextual, i.e., false reasons or reasons not 30
in fact relied upon for the discharge. Rather, as the Board has consistently held, a finding of
pretext defeats an employer's attempt to meet its rebuttal burden. Stevens Creek Chrysler Jeep
Dodge, 357 NLRB No. 57, slip op. at 5 (2011), enfd. sub nom. Mathew Enterprise, Inc. v. NLRB,
498 Fed. Appx. 45 (D.C. Cir. 2012). Further, an employer does not carry its Wright Line burden
merely by asserting a legitimate reason for an adverse action, where the evidence shows it was 35
not the real reason and that protected activity was the actual motivation. T&J Trucking Co., 316
NLRB 771, 771-773 (1995), enfd. mem. sub nom. NLRB v. T&J Container Systems, 86 F.3d
1146 (1st Cir. 1996); Stevens Creek, supra, 357 NLRB No. 57, slip op. at 5; Metropolitan
Transportation Services, 351 NLRB 657, 659-660 (2007). Applying these principles, I find that
the Respondent failed to satisfy its burden under Wright Line. 40
Respondent contends that Charging Party was terminated because he was insubordinate
and drank alcohol with guests and his termination had nothing to do with his protected activities.
Respondent’s defense is multi-layered. First, that Charging Party admitted to Rosenthal that he
drank tequila, second, that Rosenthal witnessed Charging Party drink what was “presumed” to be
tequila, third, that Rosenthal, upon observing Charging Party drink, called him into the office and 45
he again admitted to drinking tequila, fourth, that after he spoke with Charging Party, Rosenthal
JD(SF)–29–14
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spoke with the guests who also confirmed that Charging Party was drinking tequila with them,
fifth, that after Rosenthal spoke to the guests, he smelled Charging Party’s glass and smelled
tequila.
The defense although multilayered has one significant thread that runs throughout it and 5
that is that the defense is dependent upon whether or not Rosenthal’s testimony can be credited
as truthful. As noted above, I observed the demeanor of the witnesses first hand and my
credibility determinations are based in part on those observations. More importantly, I have
studied the evidence of record which reveals discrepancies in the testimony of Rosenthal that
lead directly to the conclusion that his testimony is suspect and unworthy of credence and that 10
Respondent has failed to meet its burden.
Regarding the events of March 6, 2013, Rosenthal testified as follows:
A. He -- at around 11:00 p.m., the first -- the night of the 6th, the first discussion about 15
shots with the guests, Chris had approached me in the office. I asked Chris what was --
how it was going on the floor.
He said, "Why, what did you see?"
20
I said, "Well, I saw your guests from 65 and 64, two tables, comingling."
He said, "Well, I may have taken a shot with the guests." At that point, I counseled Mr.
Welch on not doing that. And you know, reminded him, he was well aware of the
policies.25
Q. So hold on. So you're telling me he told you at that time, he drank with the guests.
A. Drank alcohol, tequila, yes.
Q. Tequila.
A. Yes, sir.30
Q. And was in uniform.
A. In uniform.
Q. On the clock.
A. But again --
Q. And all you did wa --35
A. -- without witness --
Q. Hold on.
A. -- that act --
Q. My question is -- and you only counseled him?
A. Yes, sir.40
Q. You didn't write him up.
A. No, sir. I counseled Chris. I asked him not to make me write him up for these
infractions, not to do it again. He was well aware of the policies. And that we do things
professionally. We do it off the floor. We do it in sanctioned tastings with vendors or for
training for the staff. That we don't do it at the table. 45
I mean again, it's not about the guest that he's enjoying. It's the perception of what's
JD(SF)–29–14
10
going on. The other guests that might be around. Or even another manager might walk
by and just see a server out on the floor drinking with guests. It just -- it doesn't send the
right message. It's not what we do at Hyatt or in Alto. (Tr. 58:17--25, 59:1--25, 60:1--5).
5
He elaborated on the details of what happened next in the testimony that follows:
Q. And on the night in question, March 6th, were you able to see Mr. Welch and the two
guests?
A. I could.10
Q. You saw them at the bar through that window?
A. I could -- I did.
Q. And what did you witness that night when you were walking past Cantina Due Bar,
but looking through the window at Mr. Welch and his two guests?
A. I witnessed the three men raise their glass in drink, and witnessed Mr. Welch take a 15
shot.
Q. What did you think when you saw that?
A. Damn was, I think, my initial reaction.
Q. And why is that?
A. Because it was upsetting. It was definitely not the way you want to end an evening 20
and definitely not something you want to see one of your associates do.
Q. Reflecting back on your other testimony, what time did you say you had the
discussion with Mr. Welch in your office where you instructed him not to do the drink or
have a shot of tequila or any alcohol with guests?
A. 11 p.m., or just after.25
Q. And approximately what time did you witness him when you were walking through
the area -- depicted by Respondent's 19, what time did you see that?
A. About 11:30.
Q. So what did you do after seeing that?
A. Well, got stop[ped] dead in my tracks just because I was so miffed. I went --30
continued to the back of the house after I watched that. Seconds after, Chris came back
around, and I said, Chris, can I see you in the office for a moment? I walked down there,
closed the door, and I said, now we have a problem. He said, okay.
I said I just saw you take that shot with the guests. He said, yes. And he apologized, said 35
I'm sorry. Again, they're really cool. You know, they offered me $100, and I was just
showing them a good time.
Chris, that's not what we do, and I said, unfortunately, now you've put me in a position
where I need to do my job and bubble this up to Donna Lowell, Carlos. I said, I'm not 40
going to risk my job for you to drink with the guests. I said, unfortunately, you've left me
no choice.
And he said, he understood. He apologized again. He said, you know, I know how these
things play out. You know, it's been a pleasure working with you. And I said, Chris, I 45
don't know how these things play out. I said, but I'm going to discuss it with them.
JD(SF)–29–14
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And, again, you know, he apologized. And we had a couple minutes dialogue, if that,
about the conversation, and then from there, I kind of said, well, the reason is I have a
complaint about another guest. And so, he kind of said in
his -- oh, well, you know, everything was great.
5
I said, well, no, everything is not great, they complained about it and this is the group
contact. This is a big deal. You know, this is -- they could let their meeting planner
know, this could impact the way that they, you know, they book their business in the
future.
10
I said, this is a big deal that you felt that you didn't provide a great service. And so, he,
said, no, they left me extra money, everything's great. I said, no, you know, Chris,
unfortunately, this is the situation.
So, you know, I told him about it, kind of finished that conversation up, and I just said, 15
listen, just finish up for the evening. You know, finish up with those guests, and I kind of
left it at that.
Q. Okay. At any point during that conversation, did he ever claim that he did not drink
tequila?20
A. He did not.
Q. Did he actually admit to you that he did drink tequila?
A. He admitted that he drank tequila.
Q. And he said he would drink it if for $100
A. Yes.25
Q. Did he ever say it was actually Ginger Ale?
A. He had never mentioned Ginger Ale.
Q. Did he ever say it was some liquid other than tequila?
A. He did not. (Tr. 378: 20--25, 379:1--25, 380:1--25, 381:1--17).
30
Rosenthal further testified that he spoke with the two guests and questioned them
regarding whether Charging Party had taken a shot with them and he testified that, “they kind of
jump up and say shot, more like shots.” (Tr. 385:7--10). During this conversation with the
JD(SF)–29–14
12
guests, he asserted that he picked up the glass that he saw Charging Party drinking from and
smelled it. He testified that upon doing so he smelled tequila. (Tr. 387:22-25, 388:8--11).2
1. Rosenthal’s Fabrication
5
The cornerstone of Respondent’s defense is that Rosenthal, as part of his investigation
smelled tequila in Charging Party’s glass. Reviewing the notes that Rosenthal prepared, there is
no mention whatsoever of smelling the glass of Charging Party. (Resp. Ex. 22). There is
similarly no mention of smelling the glass in the peer review counseling form. There is no
mention of him smelling the glass in Judge Montell’s Decision in the State unemployment 10
compensation case. (Resp. Exh. 7). Indeed the decision clearly states, “the supervisor testified
that he observed the claimant drinking a substance, but no evidence was offered as to how he
knew what that substance was.” (GC Exh. 6 p. 3). Nor is there any mention of the smelling of
the glass in Donna Lowell’s notes dated March 7, 2013, the day of the alleged termination.
(Resp. Exh. 27). The unemployment hearing preparation notes of Lowell also fail to mention 15
any smelling of the glass. (Resp. Ex. 28).
I find it highly unlikely that such an important detail would have been overlooked given
the numerous opportunities to raise the issue in notes and communications (both formal and

2 During the timeframe in question, Respondent had in place a substance abuse policy. That policy
provided in pertinent part:
The use or possession of alcohol during the working day or reporting to work under the influence
is also a violation of [Respondent’s] substance abuse policy and may result in disciplinary action
up to and including separation of employment.
If [Respondent] suspects an employee has violated the substance abuse policy, they may
request that the employee submit to drug and/or alcohol testing. (GC Exh. 3:30)
Respondent’s Drug-Free Workplace Policy, which includes its Substance Abuse Policy,
states in pertinent part:[Respondent] also reserves the right to take all appropriate and lawful
actions where there is reasonable suspicion to believe than an employee has violated this policy,
including reasonable suspicion that the employee is under the influence of illegal drugs and/or
alcohol. When an employee’s appearance, behavior, speech or body odor (e.g. smell of alcohol) is
indicative of the use of legal drugs which impairs safety or job performance or the use of any
illegal drugs or alcohol, the employee will be suspended pending an investigation. The employee
also may be subject to a physical examination, including blood, urine or Breathalyzer testing, at a
designated medical facility. (GC Exh. 4).
Respondent’s policies however contain an exception that sanctions the consumption of
alcohol in some circumstances. The policy found under the heading of “Consumption of Alcohol
Related to Business and/or Social Function,” provides that “[e]mployees whose job
responsibilities involve periodic entertainment of guests or others may be involved in situations in
which alcohol is ordered and/or served, and it is not the intent of this policy to create an absolute
ban against the consumption of alcohol in such circumstances. However, it is the obligation of
such employees who may consume alcohol to do so responsibly and in moderation.” (GC Exh. 4).
In addition to the above policies, Arizona state law forbids employees of a retail
establishments from consuming liquor while serving customers. See A.R.S. Section 4-244(13).
JD(SF)–29–14
13
informal) before trial. I find that more likely than not this testimony was fabricated in an attempt
by Rosenthal to bolster Respondent’s case. This fabrication casts doubt on the veracity of all of
Rosenthal’s testimony and Respondent’s asserted reasons for its actions and supports a finding
that Respondent’s actions lacked good faith and were pretext.
5
Moreover, I credit Charging Party’s testimony as truthful. Therefore, assuming for the
sake of argument that Rosenthal indeed smelled Charging Party’s glass, he would have smelled
ginger ale which has a distinctly different smell than tequila (as demonstrated by Respondent
during the trial). If, after smelling ginger ale, he then nevertheless proceeded to terminate
Charging Party there is no conclusion that can be drawn from this evidence but that the discharge 10
was not based upon any good-faith belief but rather was pretext. See Victor’s Café 52 Inc., 321
NLRB 504 (1996), a strikingly similar case, wherein a person alleged to be drinking alcohol was
instead found to be drinking Roses’ Lime Juice and Club Soda and the allegation of alcohol use
was found by the Board to be a pretext to discharge the employee. The reasoning and rationale
of Victor’s Café is equally applicable to the facts of this case.15
2. Rosenthal’s Alleged Conversation With The Guests
Rosenthal, although conveniently, didn’t speak to the bartender who actually poured
drinks and presumably had direct knowledge of the facts, testified that he spoke with two guests 20
who specifically told him that Charging Party drank alcohol with them.3 In the first instance,
given my findings discussed previously that Rosenthal fabricated his testimony, I question
whether he also fabricated his testimony regarding what, if anything, the guests allegedly told
him.
25
The notes of Rosenthal were analyzed to determine if they comported with his testimony
at trial regarding the incident. (Resp. 22). Regarding the alleged conversation with the guests,
Rosenthal wrote that, “the two gentlemen then told me as well that Chris had been drinking all

3 It should be noted that testimony regarding what the guests told Rosenthal was admitted over the
hearsay objection of counsel for the General Counsel. The testimony was admitted pursuant to FRE
801(c)(2) as it was not offered to prove the truth of the matter asserted. The practical effect of this is that
any weight given the evidence is entirely dependent on whether or not Rosenthal’s version is found to be
credible. As noted above, his testimony involved fabrication, was not reliable or trustworthy and
accordingly his testimony regarding what (if anything) was allegedly said to him is accorded little weight.
Moreover, assuming that one of Rosenthal’s versions of what was said is correct, the guests were
inebriated. While the guests alleged statements were not offered to prove the truth of the matter asserted,
Rosenthal allegedly relied upon the guest’s statements as truthful. This reliance is clothed of its own
probative force. Rosenthal failed to credit his own employee who was employed by Respondent for 7
years, and in the past received distinguished performance evaluations. (Resp. Exh. 12). Instead,
Rosenthal would purportedly rely on the statements of guests who were so inebriated they were offering
to buy strangers shots of tequila and “hitting on women” after their wives retired for the evening, with at
least one of the guests presenting as “an obnoxious drunk.” (Tr. 111:13, Tr. 113:25). It is also entirely
within the realm of inherent probabilities that if anything was said to Rosenthal by the inebriated guests it
simply may not have been intended by them to be taken as truthful or literal and may have simply been
the type of banter that is commonly attributed to persons who have been drinking. Taking statements of
inebriated guests whose statements may or may not have been truthful (or even meant to be truthful) over
that of Charging Party’s given his adamant denial and request for an alcohol test suggests that Rosenthal
had another agenda and in fact was “gunning” for Charging Party’s job. (Tr. 190-191).
JD(SF)–29–14
14
night with them and I said yes I know of the 1 shot Chris had taken prior with them, and they
replied, ‘more than that’” emphatically (emphasis added, quotations in original). (Resp. 22).
At the trial, his testimony was different. He never mentioned anything regarding the guests
telling him that the Charging Party had been “drinking all night with them” and his testimony
regarding what was allegedly said differed from his written quoted language in his notes. He 5
testified that he was told by the men that when referring to the amount of liquor consumed by
Charging Party they said “shot- more like shots.” (Tr. 385).4 Rosenthal’s first version of an
employee drinking “all night” and his own quoted language of “more than that” is significantly
different than what he later testified he heard. Given that what is directly in issue is what
Rosenthal allegedly heard, I find the previously discussed fabrication along with the 10
discrepancies set forth above renders his testimony both unreliable and untrustworthy. 5
3. The Alleged Admissions
Rosenthal’s contention that Charging Party admitted to him that he drank alcohol is also 15
difficult to credit given the fact that what Rosenthal alleged was told to him changed at least
three times in the record. When first questioned at trial, Rosenthal testified that Charging Party
told him, “well I may have taken a shot with the guests (emphasis added).” (Tr. 58:24). When
questioned later, he testified that Charging Party, came in the office and said, “I may or may not
have just done a shot of tequila with these guys (emphasis added).”6 (Tr. 455: 15--20). 20
Rosenthal’s notes indicate that Charging Party, “told me he had taken a shot with a guest at
their request (emphasis added).” (Tr. 22). The discrepancy between the three versions is plainly
apparent. The third is a blatant admission while the second version is not an admission at all.
The shifting nature of his testimony regarding the alleged admission casts significant doubt upon
the reliability of his testimony. 25
I also find other assertions by Rosenthal and Lowell that Charging Party admitted that he
was drinking with guests suspect and not worthy of credence. Lowell testified that Charging
Party, “said that he had taken a shot with a guest, because it was ‘$100.00 dollars in his pocket.’
He said he took a shot of tequila.” (Tr. 502: 1--8). There is a direct conflict between Charging 30
Party and Lowell regarding this alleged admission. Charging Party denies that he admitted
drinking alcohol and further avers that in fact he refused to sign the separation document. The
separation document which appears in the record is in fact unsigned. (Resp. Exh. 7). I find it
inherently improbable that Charging Party complained about being discharged for engaging in
protected and concerted activities, thereafter admitted drinking alcohol, and then refused to sign 35
the separation papers. I find Charging Party’s version is more believable.

4 It is also important to note that the identity of the guests was known to Respondent but neither were
called to testify at trial. Respondent instead chose to rely exclusively on the testimony of Rosenthal
regarding this issue.
5 There are other inconsistencies in Rosenthal’s testimony regarding other issues about which he
testified however to discuss them all would serve no useful purpose.
JD(SF)–29–14
15
4. The Totality of the Evidence
Respondent’s defense when analyzed separately and in a compartmentalized fashion fails
to meet its required burden under Wright Line. This conclusion is even more evident when
viewed in its totality, and further supports a finding of pretext. 5
It is undisputed in the record that Charging Party could not pour his own drinks and in
fact the drinks had to be poured by a bartender because the high priced tequila was kept under
lock and key. (Tr. 111:5). Rosenthal testified he never saw Charging Party pour any drink and
conveniently never attempted to speak to the bartender to determine whether or not he poured 10
Charging Party any liquor for his own consumption. (Tr. 55:20-22). This suggests that he really
didn’t want to know the answer, or stated differently he didn’t want the bartender to muddy up
his plans to get rid of Charging Party.7 See Kidde, Inc., 284 NLRB 78 (1987), wherein the Board
citing perfunctory nature of the investigation conducted by Respondent found the discharge of an
employee who was alleged to have been terminated for drinking alcohol was pretext finding that 15
“ it was as if Respondent’s agents feared that expanded investigation would not produce
confirmation but perhaps even contradiction….” Id. at 87.
Other cumulative evidence of pretext lie in the fact that when confronted with the
allegation that he was drinking alcohol, Charging Party immediately denied drinking and 20
volunteered to be tested for alcohol. (Tr. 115:9--17). Respondent’s policy in effect at the time
specifically provides that employees may be subject to “physical examination, including urine or
Brethalyzer testing at a designated facility. (GC Exh. 4). Despite the policy, and Charging
Party’s expressed desire to be tested, no testing was arranged. Similarly, when asked whether he
even attempted to smell Charging Party’s breath to determine if there was any odor of alcohol 25
Rosenthal testified, that he made no attempt to do so. (Tr. 63:13).
Similarly, the charge receipt records also support Charging Party’s version of events. He
testified the guests bought four shots and gave two to the women the guests were “hitting on.”
(111:11). He later testified that the guests ordered two more shots. (Tr.111). The charge receipts 30
show that exactly six shots were ordered. (Resp. Exh. 5). This not only supports Charging
Party’s version of events but also directly contradicts any assertion that Charging Party was
“drinking all night” with the guests. This was information that was directly within Respondent’s
control but Respondent failed and\or refused to consider it.
35
Other evidence of pretext can be found in the treatment of other employees in comparison
to the treatment afforded Charging Party. It is undisputed in the record that no restaurant
employee (other than Charging Party) was identified as ever having been disciplined and/or

7 Nor was the bartender or other person who may have poured the drinks called as a witness.
Applying the adverse inference rule, I find that had the person been called his testimony would have
reflected unfavorably upon Respondent. See, In re DPI New England, 354 NLRB 849, 858 (2009).
“[W]hen a party fails to call a witness who may reasonably be assumed to be favorably disposed
to the party, an adverse inference may be drawn regarding any factual question on which the
witness is likely to have knowledge.” International Automated Machinist., Inc., 285 NLRB 1122,
1123 (1987) (citing 2 Wigmore, Evidence § 286 (2d ed.1940); McCormick, Evidence § 272 (3d
ed.1984).
JD(SF)–29–14
16
terminated for drinking a soft drink. Stated differently, Respondent failed to establish that
Charging Party would have been terminated for drinking a soft drink even in the absence of
prohibited motives.
The totality of the combined evidence makes inescapable the conclusion that Respondent 5
has failed to meet its burden of establishing that it would have made the same decision in the
absence of prohibited motivation. Moreover, there is ample evidence in the record to conclude
that the asserted reasons for Charging Party’s termination were pretext.
CONCLUSIONS OF LAW10
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By discharging Charging Party for engaging in protected and concerted activities 15
Respondent violated the Section 8(a)(1) of the Act as alleged in the complaint.
Remedy
Having found Respondent has engaged in certain unfair labor practices, I find 20
Respondent must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent having unlawfully terminated Charging Party Chris Welch shall offer him
reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be
computed on a quarterly basis from the date of his discharge to the date of proper offer of 25
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), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010). Respondent will also be ordered to make changes to the personnel file of Charging Party
as described more fully below. Respondent will be ordered to post appropriate notices.30
The Company shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. The Company shall also compensate the Charging
Party for the adverse tax consequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012).35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
Order
40
The Respondent, Hyatt Corporation d/b/a Hyatt Regency Scottsdale its officers, agents,
successors, and assigns, shall

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–29–14
17
1. Cease and desist from engaging in the following conduct:
(a) Terminating any employee for engaging in protected concerted activities, including
but not limited to expressions of concern by employees regarding leave and attendance policies.
(b) In any like or related manner interfering with, restraining, or coercing employees 5
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this Order, offer Chris Welch full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.10
(b) Make Chris Welch whole for any loss of earnings and other benefits suffered as a
result of the unlawful discrimination against him, in the manner set forth in the remedy section of
the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to 15
the unlawful termination of Chris Welch and within 3 days thereafter notify him in writing that
this has been done and that the materials removed will not be used as a basis for any future
personnel action against him and/or referred to in response to any inquiry whatsoever including
but not limited to any inquiry from any employer, employment agency, unemployment insurance
office, or reference seeker or otherwise used against him in any way. 20
(d) Provide at a reasonable place designated by the Board or its agents, all payroll
records, social security payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of back pay due under the terms of this Order.
25
(e) Within 14 days after service by the Region, post at its facility in Scottsdale,
Arizona, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are 30
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In addition to physical posting of
paper notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. In the event that, during the pendency of these 35
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to

9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–29–14
18
all current employees and former employees employed by the Respondent at any time since
February 24, 2011.
(f) 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 5
the Respondent has taken to comply.
Dated, Washington, D.C. July 31, 2014
10
___________________15
Dickie Montemayor
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT discharge any employee for discussing wages, hours, and terms and
conditions of employment, such as our sick leave policy, with other employees.
WE WILL NOT discharge you for engaging in concerted activities or because you bring
group complaints to our attention.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of
the Act.
YOU HAVE THE RIGHT to discuss your wages, hours, and terms and conditions of
employment including sick leave policies with other employees.
YOU HAVE THE RIGHT to bring group concerns regarding terms and conditions of
employment to our attention.
WE WILL offer Chris Welch full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to his seniority or to any other
rights or privileges previously enjoyed.
WE WILL make Chris Welch whole for any loss of earnings and other benefits suffered as a
result of our unlawful discharge.
WE WILL remove from our files any reference to the unlawful discharge of Chris Welch and
notify him in writing that this has been done and that the materials removed will not be used
as a basis for any future personnel action against him or referred to in response to any inquiry
whatsoever including but not limited to any inquiry from any employer, employment agency,
unemployment insurance office, or reference seeker or otherwise used against him in any
way.
HYATT CORPORATION d/b/a
HYATT REGENCY SCOTTSDALE
________________________________
(Employer)
Dated: __________________ By:_________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-112474 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.