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

National Labor Relations Board - Board Decisions

Apr 10, 2017

365 NLRB No. 53 (N.L.R.B. 2017)

365 NLRB No. 53
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki
Beach Hotel and Hotel Renew and UNITE
HERE! Local 5 Cases 20–CA–154749, 20–CA–
157769, 20–CA–160516, and 20–CA–160517
April 10, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On May 31, 2016, Administrative Law Judge Mara-
Louise Anzalone issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The Respond-
ent also filed a reply brief.
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,1 and conclusions as modified below2 and to adopt
the recommended Order as modified.3

1
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 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In adopting the judge’s finding that the Respondent failed to estab-
lish that it held a good-faith belief that discriminatees Edgardo Guzman
and Santos “Sonny” Ragunjan engaged in misconduct, we note that the
record does not support that the employees’ solicitation activity would
have constituted misconduct under the Respondent’s handbook poli-
cies. In addition, we do not rely on the judge’s citation to Clear Pine
Mouldings, 268 NLRB 1044 (1984), enfd. 768 F.2d 148 (9th Cir.
1985).
In finding that the Respondent, through Vice President of Operations
Gary Ettinger, violated Sec. 8(a)(1) of the Act, we rely solely on the
judge’s credited account that Ettinger told employees: (1) to stop the
rallies or they would lose work; (2) to stop bothering their coworkers
about the Union at home or the police would get involved; (3) that they
were lucky to have jobs; and (4) that they were welcome to apologize
to him.
Acting Chairman Miscimarra agrees with his colleagues that
Ettinger violated Sec. 8(a)(1) by inviting employees to apologize to him
for their union activity. He finds, however, that the General Counsel
did not otherwise sustain his burden of affirmatively showing that
Ettinger made any specific statements that would objectively be under-
stood by a reasonable employee to prohibit protected conduct. Rather
the General Counsel presented—and the judge relied upon—general
employee testimony that was more likely to reflect employees’ subjec-
tive impressions of Ettinger’s message than reliably to report what he
actually said. Acting Chairman Miscimarra finds the judge’s conclu-
sions in this respect further undermined by the importance that the
judge attached to employees’ supposed inability to understand
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 3(d).
“(d) threatening employees with unspecified reprisals
for handbilling in nonwork areas.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Aqua-
Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel
and Hotel Renew, Honolulu, Hawaii, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(e) and reletter
the subsequent paragraph.
“(e) Threatening employees with unspecified reprisals
for handbilling in nonwork areas.”
2. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its facility in Honolulu, Hawaii copies of the attached
notice marked “Appendix” in English, Ilocano, and Ta-
galog.4 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other

Ettinger’s language and to Ettinger’s position within the Company.
Additionally, Acting Chairman Miscimarra does not agree with or rely
on the judge’s finding that the lower lobby was a nonwork area. See
Sheraton Anchorage, 362 NLRB No. 123, slip op. at 5 (2015) (Member
Miscimarra, concurring in part and dissenting in part). Accordingly,
Acting Chairman Miscimarra affirms the judge’s conclusion that the
Respondent violated Sec. 8(a)(1) by threatening employees with un-
specified reprisals for handbilling in nonwork areas solely because the
record supports the judge’s finding that the Respondent’s threat related
to the entire property, not just the lower lobby.
2 We have amended the judge’s conclusions of law to conform to
her unfair labor practice findings.
3 We shall modify the judge’s recommended Order to conform to
her unfair labor practice findings and provide for the posting of the
notice in accord with J. Picini Flooring, 356 NLRB 11 (2010), and
substitute a new notice to conform to the Order as modified.
4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 19, 2015.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. April 10, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated the National Labor Relations Act 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 bene-
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT discipline you for engaging in union
and/or protected activity.
WE WILL NOT order you to cease engaging in union
and/or protected activity.
WE WILL NOT threaten you with discharge for engaging
in union and/or protected activity.
WE WILL NOT ask you to disclose your feelings about
the union.
WE WILL NOT threaten you with unspecified reprisals
for handbilling in nonwork areas of the Hotel properties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful written warnings issued to Edgardo Guzman and San-
tos “Sonny” Ragunjan, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the written warnings will not be used
against them in any way.
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON
WAIKIKI BEACH HOTEL AND HOTEL RENEW
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-154749 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Scott E. Hovey, Jr. and Jeff F. Beerman, Esqs., for the General
Counsel.
Robert S. Katz and Christine K. David, Esqs. (Torkildson Katz
Moore Hetherington & Harris) for the Respondent.
Jennifer Cynn, Esq. for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I
heard this case on February 2 through February 5, 2016, in
Honolulu, Hawaii. This case was tried following the issuance
of an Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing (the Complaint) by the Regional Director for
Region 20 of the National Labor Relations Board (the Board)
on October 28, 2015. The Complaint was based on a number
of original and amended unfair labor practice charges, as cap-
tioned above, filed by UNITE HERE! Local 5 (Local 5, the
Union or Charging Party). The General Counsel alleges that
Respondent Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki
Beach Hotel and Hotel Renew (Respondent) violated Section
8(a)(3) and (1) of the National Labor Relations Act, as amend-
ed, 29 U.S.C. Sec. 151, et. seq. (the Act). The Respondent filed
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH AND HOTEL RENEW
a timely answer to the Complaint denying the commission of
the alleged unfair labor practices.
At trial, all parties were afforded the right to call, examine,
and cross-examine witnesses, to present any relevant documen-
tary evidence, to argue their respective legal positions orally,
and to file post-hearing briefs.1 Post-hearing briefs were filed
by Respondent and the General
Counsel, and each of these briefs has been carefully consid-
ered.2 Accordingly, based upon the entire record herein, in-
cluding the posthearing briefs and my observation of the credi-
bility of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the evidence establishes that Re-
spondent, a limited liability company, is engaged in the busi-
ness of operating hotels, with a place of business in Honolulu,
Hawaii, where it operates and manages the Aston Waikiki
Beach Hotel and Hotel Renew. The evidence establishes, the
parties admit, and I find that, in conducting its business opera-
tions, Respondent derived gross revenues in excess of
$500,000, and also purchased and received at its Honolulu fa-
cility goods valued in excess of $5000 directly from points
located outside the State of Hawaii. It is alleged, Respondent
admits, and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and further that the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the National Labor Relations Board (the Board)
has jurisdiction of this case, pursuant to Section 10(a) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations and the Union
Organizing Campaign
Respondent manages and operates two adjacent hotels—he
Aston Waikiki Beach Hotel and Hotel Renew—in Waikiki, a
popular tourist area in Honolulu. Respondent operates the
properties as a single entity (the Hotel). Respondent’s execu-
tive vice president of operations, Gary Ettinger (Ettinger), has
overall responsibility for operations; the Hotel is managed by
General Manager Mark DeMello (DeMello); reporting to De-
Mello is Rooms Division Manager Janine Webster (Webster).
Until her retirement in October 2015, Valina Haines (Haines)
served as Respondent’s senior vice president of human re-
sources.
It is undisputed that, beginning in February 2015,3 Charging

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.__” for General Counsel’s Exhibit; “R. Exh. __” for
Respondent’s Exhibit; “GC Br. at __” for the General Counsel’s post-
hearing brief and “R. Br. at __” for Respondent’s post-hearing brief.
2 On February 29, 2016, I granted counsel for the General Counsel’s
unopposed motion to correct the transcript, which was filed the day
prior. The record is therefore amended to reflect the proposed changes
set forth in that motion.
3 All dates are in 2015, unless otherwise indicated.
Party Local 5 began an organizing campaign at the Hotel,
which involved numerous Union-sponsored rallies being held
outside the two, adjacent Hotel properties. The allegations in
this case concern Respondent’s reaction to this campaign.
B. The Written Warnings
The General Counsel alleges that, on June 30, Respondent
disciplined maintenance engineer Edgardo Guzman (Guzman)
and utility housekeeper Santos “Sonny” Ragunjan (Ragunjan)
for engaging in union activity. The discriminatees were each
issued a written warning for their conduct in soliciting a third
employee, utility housekeeper Dany Pajinag (Pajinag), to sign a
union authorization card and requesting him to have his picture
taken for a union flyer. Respondent maintains that it disci-
plined the discriminatees after making a good-faith—and ulti-
mately correct—determination that they had engaged in serious
misconduct. According to Respondent’s witnesses, Pajinag
complained that Guzman and Ragunjan had repeatedly inter-
fered with his work. Respondent contends that its subsequent
investigation disclosed that the two men had engaged in an
ongoing campaign of harassment that had distracted Pajinag
from his work, and that Ragunjan had physically threatened
Pajinag.
While it is undisputed that the June 30 written warnings re-
sulted from Pajinag’s complaints, the testimony regarding the
substance of these complaints, as well as Respondent’s re-
sponse, varied widely both in substance and relative credibil-
ity.4 For the reasons stated below, I find that Respondent’s
managers and officials did not in fact hold an honest belief that
Guzman and Ragunjan had engaged in serious misconduct and
therefore find that the written warnings violated the Act.
1. Factual background
a. Respondent’s policies
Respondent’s employee handbook sets forth various bases
for discipline, including the following:
(Rule #3) Interference with others in the performance
of their jobs, horseplay, or disorderly conduct while on
working time on Company premises.
(Rule #8) Threatening, fighting or engaging in any act
of physical aggression (as well as any attempt or threat to
engage in a fight or to provide a fight), either by words or
actions.
(R. Exh. 9 at 37–38.) Respondent maintains a workplace vio-
lence policy whereby it pledges to “promptly and thoroughly
investigate all reports of threats of (or actual) violence . . .” and
explicitly retains the right to “suspend employees, either with

4 I have based my credibility resolutions on consideration of a wit-
ness’ opportunity to be familiar with the subjects covered by the testi-
mony given; established or admitted facts; the impact of bias on the
witness’ testimony; the quality of the witness’ recollection; testimonial
consistency; the presence or absence of corroboration; the strength of
rebuttal evidence, if any; the weight of the evidence; and witness de-
meanor while testifying and the form of questions eliciting responses.
Credibility findings need not be all-or-nothing propositions, and it is
common for a fact finder to credit some, but not all, of a witness’ testi-
mony. Daikichi Sushi, 335 NLRB 622, 622 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
or without pay, pending investigation.” Id. at 50. Haines con-
firmed that Respondent takes workplace threats of physical
harm seriously.
b. Pajinag’s complaints
According to Respondent’s witnesses, Pajinag initially com-
plained to his supervisor, executive housekeeper, Marissa
Cacacho (Cacacho). She testified that on May 22, he told her
that Ragunjan had approached him the day before while he was
working and invited him to have his picture taken and sign a
union authorization card. According to Cacacho, Pajinag said
that Ragunjan had bothered him several times previously and
was interfering with his work. She further testified that, on June
9, Pajinag made similar complaints about Guzman, claiming
that, on June 5 and June 9, Guzman had solicited him to sign a
union authorization card and to have his picture taken and that
he was having trouble concentrating on his job. Pajinag sub-
mitted handwritten statements regarding the events of May 21,
June 5 and June 9. In each statement, he indicated that the
incident he was reporting was not the first of its kind; Guzman,
he wrote “always bother[ed]” him and on May 21, Ragunjan
asked him to sign a Union authorization card “again.” (GC 13,
R 13.)
Pajinag’s testimony regarding his May 22 and June 9 reports
to Cacacho stood in stark contrast to Cacacho’s version. First,
he adamantly denied that he told her that his work was being
interrupted or that he was unable to concentrate, due to being
bothered or distracted by either Ragunjan or Guzman. Asked if
he had told Cacacho that there had been other, prior incidents
with Ragunjan, he initially stated unequivocally that he had not.
After counsel pointed out that his written complaint dated May
22 referenced Ragunjan bothering him “again,” he changed his
story, stating, “I cannot remember what I told [Cacacho].” (Tr.
594.) With respect to Guzman, Pajinag initially could not re-
call whether he told Cacacho about any prior incidents, and
(referring to his written statement), merely stated, “[w]hatever
is within there that’s what I told her.” When reminded that his
statement said Guzman “always bothers me,” he suddenly re-
called, “I told [Cacacho] that Edgar [Guzman] has not just
bothered me once or twice.” Asked for specifics as to what he
told Cacacho, his memory failed again, and he stated, “I don’t
know. I forgot already.” (Tr. 598–600.)
c. Respondent’s investigation and the loading dock incident
Respondent’s witnesses testified that, after each of Caca-
cho’s meetings with Pajinag, Cacacho reported to her superiors
Webster and DeMello and provided them with Pajinag’s hand-
written statement. According to Respondent, Pajinag’s June 9
complaint spurred it to investigate his complaints against Ra-
gunjan and Guzman. General Manager DeMello and Rooms
Division Manager Webster took charge. As Webster explained,
the decision to investigate was based on their belief that Pajinag
was explicitly complaining that Guzman and Santos Ragunjan’s
conduct was “distracting him from completing his assignments”
and that this “harassment or interference” had occurred numer-
ous times. (Tr. 805, 811.)
(i) Guzman’s June 10 interview
On June 10, Webster and DeMello interviewed Guzman for
approximately 15 minutes. The testimony regarding this meet-
ing was relatively consistent. DeMello asked Guzman if he had
ever asked someone to take a picture for any nonwork related
purposes during work hours and worktime, and Guzman denied
doing so.5 Guzman repeatedly asked who had complained
about him, but DeMello responded that such information was
confidential. According to Webster, DeMello then told Guz-
man, “you are not allowed to do non-work related things on
company time during work time while employees are on prop-
erty.” (Tr. 815.)
(ii) Pajinag’s June 15 interview
Five days later, Webster and DeMello again interviewed Pa-
jinag; according to Respondent, this interview was precipitated
by a new complaint filed by Pajinag that very day.6 Cacacho
testified that Pajinag had approached her “very upset” and
“shaking” and reported that, on the prior Saturday, Ragunjan
had threatened him in the Ilocano language while they were on
the loading dock. (Tr. 568–569) According to Cacacho, the
words Ragunjan used literally translated into a warning to
“watch your back all the time,” but in Ilocano, is equivalent to a
death threat. Cacacho typed up a written statement reciting
Ragunjan’s threat (in English) and provided it to Webster and
DeMello, telling them that the statement was “more threaten-
ing” in Ilocano and Pajinag was afraid to leave his house. (Id.
at 445, 571; R 14)7
Webster and DeMello testified that Pajinag was highly dis-
tressed during his interview, and, besides reporting Ragunjan’s
alleged threat, also claimed to be “scared and intimidated” by
one of his interactions with Guzman, which had taken place in
a dimly lit laundry room.8 According to DeMello, Pajinag also
indicated that there had been additional incidents between him
and the two men, but was so distraught and upset that he was
unable to give details regarding those incidents. Once again,
Pajinag’s version of events differed significantly.9 According
to him , he simply reported what Ragunjan had said to him on
May 21 and what Guzman had said to him on June 5 and June 9
(in his words, “[t]hat’s all that I told them”), but did not indi-
cate that there had been additional incidents he was too upset to
recall. (Tr. 608) Moreover, his version of the interview did not
include any specific mention of the alleged “death threat” Re-

5 The testimony is unclear as to whether, at this point, Guzman
acknowledged his wrongdoing, referring to a workplace poster regard-
ing non-solicitation. Regardless, there being evidence that Respondent
relied on any such policy in disciplining Guzman, whether he made
such an “admission” is irrelevant.
6 See Tr. 812 (“we actually reached out to him immediately after we
were notified on June 15th that a few days prior to that [] Ragunjan had
approached him on the loading dock and threatened him”).
7 Cacacho’s typewritten statement refers to the event occurring on
June 12, not June 13.
8 There is no evidence that Pajinag had previously reported being
physically afraid of Guzman.
9 Overall, Pajinag’s demeanor while testifying about the meeting
was relatively blasé, considering that, according to Respondent, he was
describing reporting a then-recent death threat.
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH AND HOTEL RENEW
spondent claimed precipitated the meeting.10
Indeed, in his testimony Pajinag indicated that the “watch
your back” threat itself had occurred prior to his first complaint
to Cacacho on March 22.11
While Pajinag’s version of this interview is at odds with that
of Webster and DeMello in several key aspects, it is undisputed
that he did identify a potential employee-witness to at least one
of the incidents he had reported, but expressed doubt that this
individual had actually overheard the conversation in ques-
tion.12 Respondent never interviewed the housekeeper(s) in
question. There is no credible evidence that, following this
interview, Respondent took any interim steps to prevent a fur-
ther confrontation between Pajinag and either Ragunjan or
Guzman.13
(iv) The June 19 interviews
On June 19, DeMello and Webster briefly re-interviewed
Guzman and interviewed Ragunjan for the first time regarding
Pajinag’s complaints. The facts of Guzman’s interview are not
significantly disputed. Guzman continued to ask for the identi-
ty of the person who had complained about him, but was again
refused this information. Asked to provide a statement about
the incident he maintained had never happened, Guzman wrote
a summary of what Webster and DeMello had asked him dur-
ing the prior interview and stated that he had no change in his
response to their accusation. (R 11.)
The same day, Ragunjan was interviewed for the first time
regarding his alleged misconduct.14 DeMello testified that he
first asked Ragunjan whether he had ever asked anyone to take
a picture for a nonwork related purpose during work time,
which Ragunjan denied. Then, according to DeMello, he di-
rectly asked Ragunjan whether he had ever threatened anyone
on the loading dock, and Ragunjan again said no, this time
avoiding eye contact, appearing nervous and almost laughing.
(Tr. 488.) Webster’s recollection of the interview was similar,
except for one critical aspect: she made no mention of con-
fronting Ragunjan with the alleged threat but instead testified

10 What he told Webster and DeMello, he testified, was the infor-
mation contained within his two handwritten statements (GC Exh. 13,
R. Exh. 13), not Cacacho’s typewritten notes.
11 Pajinag clearly testified, after being asked whether there was any-
thing else he recalled about the May 21 incident, that there was “one
thing before” and then described the “watch your back” incident.
When Respondent’s counsel asked Pajinag to confirm whether it had
happened before “or after” the May 21 incident, he stated, “after” and
but then claimed he could not recall when, stating, “I need to look at the
paper.” (Tr. 590.) I credit his original, uncoached testimony that the
incident he described happened before May 22, not on the Saturday
prior to June 15, as Respondent contends.
12 According to DeMello, Pajinag identified a room attendant who
was present in a guest room during one of the incidents he reported
between him and Guzman in early June; Webster recalled that he re-
ported a room attendant-witness to Pajinag’s claimed May 21 incident
with Ragunjan.
13 DeMello testified that he and Webster instructed Cacacho at some
point to “try to monitor [Pajinag] when he was working” and “keep a
sort of a close eye on the whole situation.” (Tr. 467.) I do not credit
this testimony, which went uncorroborated by either Webster or Caca-
cho, and had a self-serving ring to it.
14 Ragunjan did not testify.
he was simply asked was whether he had ever requested that
someone take a picture for a nonwork related purpose. (Id. at
812) I credit Webster’s account of the exchange; it came across
less forced and rehearsed than DeMello’s testimony and also
squares more accurately with the record as a whole.
d.Respondent disciplines Guzman and Ragunjan on June 30
Respondent’s witnesses testified that, at some point between
June 19 and June 30, DeMello and Webster provided the results
of their investigation to Haines, along with a draft corrective
action for each man and their recommendation for discipline.
They informed Haines that they believed that Guzman and
Ragunjan, based on their demeanor when interviewed, were not
being truthful and that in particular Ragunjan did not seem to
want to discuss the accusations against him.
Haines concluded that Guzman and Ragunjan had repeatedly
interfered with Pajinag being able to do his work, in violation
of Respondent’s non-interference rule (Rule #3, supra), and that
Ragunjan had additionally violated Respondent’s anti-
threatening rule (Rule #8, supra) by warning Pajinag “about
being careful and watching his back.” (Tr. 712.)15 She decided
that both Guzman and Ragunjan should receive a written warn-
ing for their conduct.16 On June 30, management presented
both Guzman and Ragunjan with their corrective action notices,
which they refused to sign. The warning issued to Guzman
makes reference to the alleged incidents on June 5 and June 9;
Ragunjan’s warning refers to the alleged incident on May 21
and the loading dock threat, which Respondent identified as
having occurred on June 11. (GC 10, 11.)
2. Applicable legal principles
a. The Burnup & Sims standard
Where the conduct for which an employee is disciplined is
intertwined with the employee’s otherwise protected activity,
the employer’s motivation is not at issue, and the proper analyt-
ical framework is that found in NLRB v. Burnup & Sims, 379
U.S. 21 (1964). Under this framework, an employer may law-
fully discipline an employee for engaging in misconduct in the
course of his otherwise protected activity, but only if it had a
good-faith and correct belief that such misconduct occurred.
Burnup & Sims, supra at 23–24; see also La-Z-Boy Midwest,
340 NLRB 80 (2003).
Under the Burnup & Sims framework, the initial burden is on
the General Counsel to establish that the employee was disci-
plined or discharged for conduct occurring during the course of
protected activity. The burden then shifts to the employer to
show that it held an honest belief that the employee engaged in
serious misconduct. Burnup & Sims, supra at 23. The test for
“serious misconduct” is whether the employee’s activity is such
that, under the circumstances existing, it may reasonably tend
to coerce or intimidate coworkers. Clear Pine Mouldings, 268

15 It is unclear from the record whether Haines was informed (per
DeMello’s version of events) that Ragunjan had been confronted with
and denied making the loading dock threat to Pajinag.
16 Haines, whose typical policy was to review cases of similar trans-
gressions to ensure fairness in meting out discipline in a particular case,
could not recall whether she did so with respect to Guzman or Ragun-
jan’s written warning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
NLRB 1044 (1984); see also Fresh & Easy Neighborhood
Market, Inc., 361 NLRB No. 12, slip op. at 5 (2014) (employ-
ee’s Sec. 7 activity does not lose protection merely because it
makes fellow employee uncomfortable) (citing Frazier Indus-
trial Co., 328 NLRB 717, 719 (1999), enfd. 213 F.3d 750 (D.C.
Cir. 2000)); Consolidated Diesel Co., 332 NLRB 1019, 1020
(2000) (“[l]egitimate managerial concerns to prevent harass-
ment do not justify . . . discipline on the basis of the subjective
reactions of others to [employees’] protected activity”).
Once the employer establishes that it held an honest belief in
the employee’s serious misconduct, the burden shifts to the
General Counsel to affirmatively show that the misconduct did
not in fact occur. Rubin Bros. Footwear, Inc., 99 NLRB 610,
611 (1952), enf. denied on other grounds 203 F.2d 486 (5th Cir.
1953); see also Akal Security, Inc., 354 NLRB 122, 124–125
(2009), reaffd. 355 NLRB 584 (2010); Tracer Protection Ser-
vice, 328 NLRB 734, fn. 2 (1999); Desert Inn Country Club,
275 NLRB 790, 795 (1985). Thus, an employer who disci-
plines an employee for misconduct within the course of other-
wise protected activity will be found to have violated the Act
where the evidence discloses that: (a) it did not honestly be-
lieve the serious conduct occurred; or (b) even if it did so be-
lieve, it was mistaken.17
b. The June 30 written warnings violated Section 8(a)(3) and
(1) of the Act
As a preliminary matter, I find that the existence or lack of
unlawful animus is not relevant in this matter, as the June 30
written warning issued to Guzman and Ragunjan were admit-
tedly motivated by their protected conduct, i.e., their effort to
convince a third employee, Pajinag, to support the Union and
its organizing effort at the Hotel. See Burnup & Sims, supra.18
Next, I examine whether Respondent met its burden in estab-
lishing that, in issuing the discipline, it held a good-faith belief
that Guzman and Ragunjan had engaged in serious misconduct
in their interactions with Pajinag. I find that Respondent failed
to meet this burden.
Frankly, much of the testimony offered by Respondent’s
witnesses regarding the events leading to the June 30 written
warnings appeared rehearsed. Cacacho, Pajinag’s direct super-
visor, had trouble remembering which employee Pajinag had
complained about and when, and both DeMello and Webster
struggled to recite the convoluted questions they claim to have
asked when interviewing the discriminatees. Cacacho, Webster
and DeMello each parsed their answers in a manner that did not
suggest forthrightness. Ultimately, Respondent’s management

17 Holding an employer liable for a good-faith, but mistaken, belief
in employee misconduct in the context of protected activity is neces-
sary, “otherwise the protected activity would lose some of its immunity,
since the example of employees who are discharged on false charges
would or might have a deterrent effect on other employees . . . A pro-
tected activity acquires a precarious status if innocent employees can be
discharged while engaging in it, even though the employer acts in good
faith.” Burnup & Sims, supra at 23.
18 Respondent’s suggestion that this conduct was unprotected be-
cause it may have violated a lawful no-solicitation rule is unavailing, in
that there is no evidence Respondent relied on any such rule in issuing
the written warnings. (See R. Br. at 43, fn. 6, citing cases.)
witnesses could not agree on a consistent version of the facts
and contradicted each other on significant details, such as
whether Ragunjan had ever been confronted with the alleged
death threat.
Regarding the complaints, I credit Pajinag’s more unvar-
nished version of events, which departed from Respondent’s
script in key respects. First, I credit Pajinag’s testimony that
his specific complaints regarding Guzman were based on two
conversations with Guzman four days apart. Likewise, he re-
ported—at most—a single incident with Ragunjan on May 21
and an allegedly threatening comment by Ragunjan occurring
some time before that.19 In this regard, I find this case distin-
guishable from BJ’s Wholesale Club, cited by Respondent. See
318 NLRB 684, 685 (1995). In that case, the Board upheld a
discipline based, in part, on a coworker’s report that the dis-
criminatee had solicited her to sign a union authorization card
three times in a single day and that she was “too busy” to be
bothered. Moreover, while Respondent’s management wit-
nesses stressed, in lockstep fashion, that they were chiefly con-
cerned about the fact that Pajinag had complained that Guzman
and Ragunjan were interfering with him getting his work done,
this is precisely what Pajinag denied complaining about; he
clearly testified that he just wanted his coworkers to stop
“bothering” him about the Union. See Chartwells, Compass
Group, USA, 342 NLRB 1155, 1157 (2004) (employer may not
lawfully discipline an employee for making pro-union (or anti-
union) statements that merely cause another employee to feel
uncomfortable) (citing Consolidated Diesel Co., 332 NLRB at
1020 (2000)). This falls far short of the Board’s standard for
“serious misconduct” in the course of protected activity.
Respondent’s investigation into Pajinag’s complaints further
suggests that it did not honestly believe that either Guzman or
Ragunjan’s solicitations for a photograph and/or union authori-
zation card had actually interrupted Pajinag’s work or other-
wise lost the Act’s protection. Instead of responding to Pa-
jinag’s complaints with interim action, Respondent’s managers
focused on amassing documentation of the alleged misconduct.
Respondent’s failure to interview an identified witness (based
solely on Pajinag’s speculation about that individual’s hearing
range) and refusal to inform Ragunjan or Guzman (despite the
latter’s repeated requests) of the identity of their accuser re-
flects prejudgment of the situation inconsistent with a good-
faith investigation. Arkema, Inc., 357 NLRB 1248, 1248–1249
(2011) (failure to allow employee to refute allegation or identi-
fy accuser indicates lack of honest belief in misconduct);
Trailmobile Trailer, LLC, 343 NLRB 95, 106 (2004) (failure to
conduct meaningful investigation, including avoiding ignoring
potential evidence, suggests that employer “seized upon” com-
plaint to rid itself of union officers).

19 As noted, I am convinced, based on the testimony and demeanor
of the witnesses, that Pajinag never reported that he had been seriously
threatened the Saturday prior to June 15, as Respondent claims. While
I do not reject Pajinag’s testimony that he may, in fact, at some point in
time, have felt threatened by Ragunjan, it appears to me that any threat
reported by Pajinag was based on long-passed events repackaged by
Cacacho to appear more imminent, allowing Respondent to seize upon
it as a reason for discipline.
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH AND HOTEL RENEW
Likewise, Respondent’s languid and tepid response to Pa-
jinag’s complaint that Ragunjan had recently physically threat-
ened him was not consistent with the actions of a concerned
employer seeking to ascertain the truth of the matter, or to oth-
erwise respond to such a serious allegation. While Cacacho
testified that Ragunjan’s comment was tantamount to a death
threat, and DeMello described Pajinag as “distraught” and
“scared,” Respondent did not contact law enforcement or take
any other action to protect Pajinag, such as suspending Ragun-
jan pursuant to its workplace violence policy. (Tr. 439–440.)
Instead, DeMello and Webster inexplicably waited four days to
interview Ragunjan and then failed to confront him about the
loading dock incident. See Remington Lodging & Hospitality,
LLC (Sheraton Anchorage), 363 NLRB No. 6, 16 (2015) (fail-
ure to elicit accused employee’s version of events is incon-
sistent with good-faith investigation) (citing K & M Electron-
ics, 283 NLRB 279, 291 fn. 45 (1987)). Finally, while finding
Ragunjan guilty of “threatening” pursuant to its policies, Re-
spondent meted out exactly the same level of discipline it is-
sued Guzman, who was found guilty of no such infraction.
Accordingly, I find that Respondent failed to establish that it
disciplined Guzman and Ragunjan based on an honestly held
belief that they had engaged in serious misconduct in the course
of protected activity; as such, I find that their written warnings
violated the Act.
C. The Employee Meetings
The General Counsel alleges that, during meetings with Ho-
tel employees in May 2015, Respondent’s executive vice presi-
dent of operations, Gary Ettinger made various statements in
violation of Section 8(a)(1) of the Act. Specifically, according
to the General Counsel, Ettinger: (a) directed employees to
stop participating in union-organized rallies; (b) directed em-
ployees to stop visiting the homes of coworkers to engage in
union and/or other protected concerted activities; (c) impliedly
threatened employees with the loss of their jobs for engaging in
union and/or protected concerted activities by telling them that
they were lucky to have jobs; and (d) told employees to apolo-
gize to Respondent for engaging in union and/or protected con-
certed activities.
While Respondent concedes that Ettinger held the meetings
in question, it sharply disputes the version of his comments
testified to by the General Counsel’s witnesses and further sug-
gests that his remarks must be judged by a “reasonable employ-
ee” standard that assumes an English-speaking employee who
understood his comments fully.
As set forth below, I find that Respondent, by Ettinger, vio-
lated the Act as alleged.
1. Factual background
Beginning in February 2015, prounion Hotel employees be-
gan holding early morning rallies outside the Hotel during
which they chanted and banged pots and pans. Within a week
of the first such rally, Respondent began holding meetings with
employees to address the union campaign. The General Coun-
sel’s allegations concern statements made by Ettinger at two
such meetings held on May 19, 2015 in the Aston Waikiki’s
Lokahi room.20 Three current employees testified for the Gen-
eral Counsel regarding the meetings: inspector Faustino Fabro
(Fabro), breakfast attendant Cecile Daniels (Daniels) and guest
service agent Lotuseini Kava (Kava). Respondent presented
the testimony of all of the management attendees, as well as
Ettinger himself. A single employee, housekeeper Alona
Afable (Afable), also testified for Respondent.21
The basic background facts regarding the meetings are un-
disputed. Ettinger addressed 30–35 Hotel employees seated in
a circle around him. Webster, Haines and DeMello were seated
among the employees. Ettinger spoke from prepared bullet
points22 and did not solicit questions from the attendees. Alt-
hough the majority of employees attending these meetings did
not speak English as a primary language, Ettinger spoke in
English without the assistance of a translator. There is no evi-
dence that any employee spoke during the meeting.
Ettinger began by expressing concern about how long the
Union’s organizing campaign had gone on. He said that guests
were complaining about noise from the rallies, and that, going
into the Hotel’s busy season, he was concerned that this con-
duct would drive away business and reduce work opportunities.
In his words, Ettinger said that the noisy rallies were “disturb-
ing guests,” creating an environment not “conducive” to guests
enjoying their vacations and “having a deleterious impact on
business.” Next, according to Ettinger, he said certain employ-
ees had complained about being bothered, at home and at work,
by pro-Union employees. This conduct, he said, was causing
“acrimony” and “discomfort” among the employees. (Tr. 640–
641, 644,) 23 He then instructed the employees that they had the
right to decide who entered their homes and that, if union sup-
porters refused to leave when asked, the visited employee could
contact the police.
General Counsel’s witnesses, none of whom speak English
as a primary language, testified, to the best of their ability, as to
what Ettinger said in English. Not surprisingly, their recollec-
tion of his remarks did not include words such as “deleterious”
and “acrimony.” Instead, they testified that he affirmatively
ordered the employees to cease engaging in certain conduct.
Fabro and Daniels testified that Ettinger told the employees to
stop banging pots and pans and to stop bothering their cowork-
ers at home. Kava testified that Ettinger said the rallies needed
to end, because they were waking people up at the Hotel. Gen-
eral Counsel’s witnesses recalled a specific aspect of Ettinger’s
body language during the meeting: he was holding a plastic
water bottle and “banging” it back and forth between his hands.

20 Respondent’s management witnesses, who each attended both
meetings, testified consistently that Ettinger’s presentation was similar
each time.
21 Afable testified that attendance at the meetings was mandatory.
22 Under Fed. R. Evid. 611(c) examination, Ettinger adopted his
typed bullet points as an accurate reflection of what he said; his coun-
sel’s subsequent attempt to have him backtrack on this point was un-
convincing. I find that, as he originally testified, he in fact addressed
each of the bullet points. (Tr. 657; GC 16.)
23 DeMello confirmed that Ettinger used terminology such as “dis-
cord,” “in-fighting” and “dissention” when describing the atmosphere
the Union had created. (Tr. 746; R 17.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Kava also testified that he appeared upset and spoke loudly.24
In markedly more plain-spoken language, Ettinger next
talked about employees’ negative experiences at unionized
workplaces in the local area. He then told a story about his
own mother being denied his father’s union-funded pension
benefits after his death, promising the assembled employees
that, even if a union came in, they could rest assured that they
would still be entitled to their 401(k) account balances. Refer-
ring to a pro-union Hotel employee who had recently been
interviewed on local radio regarding his prior job at a unionized
hotel, according to Ettinger’s notes, he then asked the employ-
ees, if that employee’s experience “was so great,” why did he
leave to work at the Hotel, a nonunion property? “Why,” he
asked them, “are there so many jobs posted for union proper-
ties? Why are union hotels struggling to keep people[?]” (GC
16)
In his closing remarks, Ettinger returned to the subject of the
rallies, asking rhetorically why the Union had not called for a
vote yet. Then he told the employees it was because the Union
wanted to disrupt the Hotel’s business. Ettinger then said that
he was angry with the situation because it was “not necessary,”
that the Hotel was ready for an election and that the Union
“should call for a vote, not do things via pots, pans and harass-
ment.” (R. Exh. 18, 19.)25 The General Counsel’s witnesses
testified that the meeting ended on a much heavier note. All
three witnesses testified that Ettinger said—n simple English—
they were lucky to have jobs. Finally, according to Fabro and
Daniels, he then said they could stop by his office and apolo-
gize to him. These remarks—also delivered in easily under-
stood English – were universally denied by Respondent’s wit-
nesses.
2. Analysis
a. Credibility
I credit the General Counsel’s witnesses with respect to
Ettinger’s statements. I found Fabro to be especially credible,
in that he listened carefully to questions and maintained the
same demeanor regardless of who was examining him. Dan-
iels, who testified through a Tagalog interpreter, was clearly
nervous, but visibly worked hard to relate what she heard
Ettinger say in English. While Kava’s recollection was not as
complete as the two others, her demeanor was composed and
steady, and she struck me as committed to speaking the truth.26
I attribute enhanced credibility to Fabro, Daniels and Kava, due
to their status as current employees. Flexsteel Industries, 316
NLRB 745 (1995) (“. . . the testimony of current employees

24 Ettinger’s manner during the meeting was described by DeMello
as “intense.” (Tr. 464)
25 I credit Webster’s meeting notes regarding these remarks; Ettinger
related a gentler version, in which he merely said that “the conduct of
the people that were outside of the hotel banging pots and pans were
creating an environment that wasn’t suitable for, you know, the vaca-
tion experience.” (Tr. 648.)
26 Respondent’s spurious accusation that Kava committed “perjury”
when she denied looking at an additional portion of her affidavit while
having her recollection refreshed is not well taken; it is quite common
for a witness whose recollection is refreshed on one portion of a con-
versation to then recall subsequent portions.
which contradicts statements of their supervisors is likely to be
particularly reliable because these witnesses are testifying ad-
versely to their pecuniary interests”) (citations omitted), affd
mem. 83 F.3d 419 (5th Cir. 1996).
By contrast, I found Ettinger’s testimony less than fully cred-
ible. His dismissive denials, sometimes accompanied by laugh-
ter, struck me as a sign of nervousness and discomfort, particu-
larly regarding the specific statements the General Counsel’s
witnesses attributed to him. Respondent’s remaining witnesses
gave guarded testimony that presented as less than forthright.
Both DeMello and Afable appeared nervous while testifying, as
if unsure which of Ettinger’s remarks might damage Respond-
ent’s case. Haines, who was present for Ettinger’s own testi-
mony, nonetheless appeared uncomfortable testifying about the
meetings; she was only to recall vague portions of the meeting
and then simply stated denials in response to leading ques-
tions.27 I found Webster to be slightly more credible; I note,
however, that she was present during the entire hearing and, as
the final witness, had heard all of the other testimony regarding
the meetings, which detracts from the reliability of her own
testimony.
b. Ettinger’s comments violated the Act
Section 8(a)(1) of the Act provides that it is an unfair labor
practice to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7, which protects
the right of employees to engage in “concerted activity” for,
inter alia, their “mutual aid or protection.” It is well settled that
the Board assesses the objective tendency of a statement to
interfere with the free exercise of employee rights rather than
considering either the employer’s motive or employees’ actual
subjective reactions regarding the statement. Miller Electric
Pump and Plumbing, 334 NLRB 824, 825 (2001); Joy Recov-
ery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134
F.3d 1307 (7th Cir. 1998). The issue, then, is how a “reasona-
ble employee” would interpret the statement considering all
surrounding circumstances. The Roomstore, 357 NLRB 1690,
1690, fn. 3 (2011).
“The test of whether a statement is unlawful is whether the
words could reasonably be construed as coercive, whether or
not that is the only reasonable construction.” Double D Con-
struction Group, 339 NLRB 303, 303 (2003) (citation omitted).
While certain employer statements, taken alone, may be con-
sidered noncoercive, they will violate the Act where they “take
on the character and quality of coercive comments which ac-
company them.” Oak Mfg. Co., 141 NLRB 1323, 1325 (1963).
An employer will be held accountable for misleading or confus-
ing statements that would reasonably tend to chill an employ-
ee’s protected activity; as Chief Justice Warren stated in the
Gissel case:
[a]n employer, who has control over [the employment] rela-

27 Especially concerning to me were Haines’ typewritten notes of the
meeting (R. Exh. 16), which substantially echo Ettinger’s testimony
and which she claimed to have typed based on her contemporaneous
handwritten notes. When the handwritten notes were produced, they
consisted of two short notations that could not have possibly served as
the basis for the typewritten notes. (Tr. 781–783.)
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH AND HOTEL RENEW
tionship and therefore knows it best, cannot be heard to com-
plain that he is without an adequate guide for his behavior.
He can easily make his views known without engaging in
“brinkmanship” when it becomes all too easy to “overstep and
tumble [over] the brink.”
NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969) (citing
Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir.
1967)).
The identity of the speaker and his position of relative power
in the workplace are also given consideration; when an em-
ployer uses a high-level manager to voice its antiunion mes-
sage, that message takes on an especially coercive quality and
is unlikely to be forgotten. See Electro-Voice, 320 NLRB
1094, 1096 (1996); America’s Best Quality Coatings Corp.,
313 NLRB 470, 472 (1993), enfd. 44 F.3d 516 (7th Cir. 1995),
cert. denied, 515 U.S. 1158 (1995); see also Aldworth Co., 338
NLRB 137, 149 (2002) (captive audience meetings convey a
significant impact when conducted by high-level officials). A
high ranking employer official who peppers his remarks with
provocative phrases “skillfully chosen to obscure their defini-
tive meaning or to create a double entendre” may violate the
Act where they effectively instill fear of economic jeopardy in
the minds of the employees listening. Brandenburg Tel. Co.,
164 NLRB 825, 831–832 (1967) (citing International Assn. of
Machinists (Serrick Corp) v. NLRB, 311 U.S. 72, 80 (1940)
(“interference must be determined by careful scrutiny of all
factors, often subtle, which restrain the employees’ choice
. . . .”)).
In assessing the lawfulness of communications in a multilin-
gual workplace, language barriers cannot be ignored. The
Board has noted that “some imprecision inevitably arises” in
such settings, particularly where the employer’s communication
“walk[s] the fine line between lawful descriptions and unlawful
threats.” Labriola Baking, 361 NLRB No. 41, slip op. at 4
(2014). However, the Board has specifically rejected the argu-
ment that employers should be granted “greater latitude in ad-
dressing non-English speaking workers,” instead finding that
such statements “deserve careful scrutiny.” Id. Thus, an em-
ployer will be held responsible for misunderstandings that re-
sult from a misunderstood English language statement, even
where the coercion takes the form of a mistranslation it unwit-
tingly sanctioned. Id. at 2; see also Cream of the Crop, 300
NLRB 914, 917 (1990) (citations omitted). Likewise, where
the employer fails to take reasonable steps to ensure that its
antiunion message is accurately understood by its multilingual
workforce, it engages in the very “brinksmanship” Justice War-
ren cautioned against, and should be held accountable for the
results.
Evaluated under these standards, I find that Ettinger’s com-
ments violated the Act. In a speech peppered with outmoded,
bookish phraseology, such as “deleterious impact” and “acri-
mony,” critical portions of Ettinger’s remarks were virtually
ensured to be understood in only the most basic terms by those
in attendance.28 According to the General Counsel’s witnesses,

28 As Ettinger apparently considered the subtlety of his message to
require the use of such ornate language, surely it would have made
those basic terms were: (a) stop the rallies or you will lose
work, and (b) stop bothering your coworkers about the Union
or the police will be involved.29 Lest they misunderstand the
consequences of failing to ‘fall in line,’ Ettinger closed his
remarks with more readily understandable English phrases,
including telling them they were “lucky to have jobs” and were
welcome to “apologize” to him. The coercive nature of his
remarks was exacerbated by Ettinger’s status at the Hotel, as
well as by his body language and “intense” demeanor.
Based on the above, I find that a reasonable employee at-
tending Ettinger’s meetings, while perhaps confused by certain
of his phrases, would have reasonably understood that the Ho-
tel’s highest level of management was fed up and angry with
their union organizing and noisy protests and was telling them
to stop. See Lancaster Fairfield Community Hospital, 311
NLRB 401, 401 (1993) (directing employee to “discontinue this
disruptive behavior immediately,” in reference to employee
complaining about working conditions, constitutes an unlawful
threat of future reprisal for engaging in such conduct); Ameri-
can Tool & Engineering Co., 257 NLRB 608, 608 (1981) (or-
dering employees to stop wearing union insignia and distrib-
uting union literature violates Section 8(a)(1)). I also find that
a reasonable employee just ordered by top management to
cease pro-union conduct would reasonably feel his job security
threatened when he next commented that employees were lucky
to have jobs, especially considering that he had earlier suggest-
ed that local union hotels were losing money and not able to
keep people employed.30
Finally, I find that Ettinger’s invitation to employees to
“apologize” to him constitutes an unlawful solicitation that they
disclose their Union sentiments. Having been informed that
some employees had already complained to management about
the Union, a reasonable employee would feel pressured by
Ettinger’s invitation to disclose her union sentiments, one way
or the other. The Board has found such solicitations to violate
the Act. See, e.g., Barton Nelson, Inc., 318 NLRB 712, 712
(1995) (asking employees to make an “observable choice” re-
garding their union sentiments violates the Act); Capitol Rec-
ords, Inc., 232 NLRB 228, 228 (1977) (soliciting employees to
disclose their sentiments regarding the union violates the Act).
D. The Handbilling Incident
The General Counsel alleges that, on August 11, Respond-
ent, by security guard Andrew Smith, unlawfully threatened
employees with discipline for distributing union literature near
the lower lobby of the Hotel.

sense to have his comments translated or at least confirmed that those
gathered had understood him by taking questions after his presentation.
29 Frankly, mentally “editing” out Ettinger’s excess verbiage from
his own admitted account of the meeting leaves me with very much the
same impression.
30 Put in this context, Ettinger’s remarks – which did not refer to the
assembled employees skill level or the overall job market – effectively
linked the employees’ ability to remain “lucky” (i.e., employed) with
their compliance with his directive that they cease their protected con-
duct. Cf. Children’s Services International, 347 NLRB 67 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
1. Factual Background
a. The layout of the lower lobby
The lower lobby acts a main entrance for the Hotel, but is not
where guests regularly check in.31 The lobby is accessed via a
porte-cochère (i.e., covered driveway), which is not uncommon
among hotel properties. What does make the lower lobby
somewhat distinctive is its open-air design; it lacks a structural
façade fronting the driveway. Instead, an individual entering
the lobby from the driveway would cross over a red-painted
curb and walk onto a tiled area containing several red-painted
pillars accented by potted plants. (See GC Exh. 5, R. Exh. 3.)
Approximately 2 feet beyond those pillars, the flooring con-
verts to wood, and tables and chairs are arranged, along with
televisions, in a lounge seating area. I will refer to the tiled
area containing the pillars abutting the driveway as the lobby’s
“entrance area.”
Despite its open-air design, the lower lobby offers no over-
head or beach views, but instead looks over the covered Hotel
driveway and the hotel across the street. The lobby is open to
the public as well as Hotel guests.32 Other than the televisions,
the Hotel does not provide entertainment in the lower lobby.
The lobby contains a convenience store, as well as two restau-
rants, none of which are operated by the Hotel. Although
guests may “take out” food from these establishments and eat it
in the lobby seating area, the Hotel itself does not serve food to
guests in the lower lobby. By contrast, Respondent’s main,
upper lobby area – where guests regularly check in – contains a
swimming pool and deck and a large restaurant run by the Ho-
tel.
As of August 11, Respondent also hosted “breakfast on the
beach” events where it served food to guests in its upper lob-
by.33
Certain Hotel employees perform work in the lower lobby,
including the entrance area. From a bell and valet stand (situat-
ed far to one side of the entrance area) Hotel employees provide
concierge services and are dispatched to handle luggage and
valet park vehicles. A “doorman” or “greeter” is also assigned
to this operation; this employee greets guests and directs them
to the Hotel’s registration area on the floor above. A house-
keeper lobby attendant is also assigned to the lower lobby and
regularly empties trash bins in the entrance area. There was
some evidence that maintenance employees sometimes work on
repairs in the lower lobby, but are not regularly assigned there.

31 While large groups may check in at the lower lobby, this is rela-
tively uncommon, and no such group was present on August 11.
32 There was limited testimony from Hotel security guard Andrew
Smith that only Hotel guests – not members of the public – were per-
mitted to actually sit in the lobby seating area. I found that his testimo-
ny lacked foundation, in that he merely claimed to inform anyone he
identified as a non-guest that the seating was for Hotel guests only. (Tr.
115–116.)
33 Ettinger testified that this event was held in the upper lobby; later,
DeMello testified that, due to a lack of space, guests would “often-
times” bring their breakfast meal down to the lower lobby and eat it in
the lobby seating area. Frankly, I found this portion of DeMello’s
testimony less than convincing; it was apparent that he was quite fo-
cused on “selling” the open-air experience of the lower lobby.
Security guards employed by a third-party contractor regularly
patrol the lower lobby.
b. The events of August 10
On August 10, Webster learned that Jonathan Ching (Ching),
a Guest Service Agent at the Hotel, was planning to pass out
pro-Union fliers in the lower lobby the next day. Along with
DeMello and Front Services Manager Makana Kaanoi
(Kaanoi), Webster met with Andrew Smith (Smith), who leads
the Hotel’s outside-contracted security team. Webster and
DeMello instructed Smith to order Ching to leave the Hotel
property and additionally warn him that he would be “tres-
passed” if he refused to leave. “Trespassing” means barring an
unwanted person from the Hotel property for a year with the
threat that, should they return within that year, they would risk
arrest. Witnesses agreed that, prior to August 10, no Hotel
employee had ever been “trespassed.” Webster then instructed
Smith that, should Ching fail to comply, he should in fact, be
“trespassed.” (Tr. 50.) I credit Smith’s testimony regarding
this meeting; his recollection was concise, and his demeanor
was businesslike and matter-of-fact.
The following day, shortly after 7 a.m., Ching and another
Hotel employee, Lakai Wolfgramm (Wolfgramm), each of
whom were off duty, stationed themselves in the lobby’s en-
trance area, each in front of a red pillar, and prepared to hand
out flyers on behalf of the Union. Approximately three
minutes later, Smith approached with another security guard as
well as Front Office Manager Adam Miyasato (Miyasato), who
supervises Ching and Wolfgramm. Smith told Ching he was
being given a “verbal warning to stop passing out flyers in the
lower lobby” and “you’re not allowed to pass out pamphlets on
property.” He then told Ching that, if they refused to leave,
they would be “trespassed.” As Wolfgramm approached and
joined the conversation, Ching insisted that they had the right to
remain, to which Smith responded, “it doesn’t matter. You
guys can’t be here. I’m going to ask you guys to leave.” (Tr.
52–53, 106, 160.)
Ching then addressed Miyasato, asking whether there was
someone to direct him “other than an outside contractor.” (Tr.
72–73) Miyasato gestured towards Smith and stated, “he’ll
do.” Smith confirmed this, telling Ching, “I represent man-
agement and [] I speak on their behalf.” Miyasato remained
silent. Smith again told Ching he would “trespass” him unless
he refused to stop handbilling and left the property (which they
did). (Id. at 72–74.) Again, I credit Smith’s version of events,
as corroborated by Ching and Wolfgramm. Miyasato did not
testify.
2. Analysis
a. Ching and Wolfgramm’s conduct on August 11
It is well settled that, absent special circumstances, the Act
guarantees employees the right to distribute union literature on
their employer’s premises during nonwork time in nonwork
areas. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803–
804 (1945). Here, there is no contention (and no evidence) that
either Ching or Wolfgramm made any effort to impede ingress
or egress of persons to or from the Hotel property, interfere
with other employees performing their jobs or engage in any
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH AND HOTEL RENEW
other conduct that would justify Smith’s intervention for the
purpose of maintaining security or discipline. Thus, Ching and
Wolfgramm’s attempt to handbill Hotel customers in further-
ance of the Union’s organizing effort, assuming it was carried
out in a nonwork area, constituted protected activity.
b. Smith’s agency status
The next issue is whether Smith acted as Respondent’s
agent. An employer may be held liable for unfair labor practic-
es committed by security guards acting in their official capaci-
ty. Saint Johns Health Center, 357 NLRB 2078, 2096 (2011)
(security guards acting under direct authority from upper man-
agement violated Section 8(a)(1) by threatening to have em-
ployees charged with trespassing for distributing pro-union
literature) (citing Opryland Hotel, 323 NLRB 723 fn. 3 (1997);
Bakersfield Memorial Hospital, 315 NLRB 596 (1994); South-
ern Maryland Hospital Center, 293 NLRB 1209 (1989)). Here,
the evidence establishes that DeMello and Webster explicitly
delegated to Smith the authority to warn Ching that his hand-
billing would be handled as a trespass if he did not cease and
leave the Hotel property. Poly-America, Inc., 328 NLRB 667,
667–68 (1999) (security guards act as employer’s agents where
they act under employer’s specific instructions in ejecting un-
wanted persons from its property).
Moreover, Smith’s authority was confirmed by Miyasato,
who, when asked whether there was a member of management
in charge of the situation, told Ching that Smith would be suffi-
cient to serve in that role. Based on this, a reasonable employ-
ee would understand that Smith was speaking and acting for
Respondent; I therefore find that he had apparent authority to
speak on behalf of Respondent on this occasion. See Perdue
Farms, Inc., 323 NLRB 345, 351 (1997) (security guards
placed in a position to stop individuals from entering premises
are cloaked with apparent authority); see also Waterbed World,
286 NLRB 425, 426–427 (1987) (test for apparent authority is,
whether, under all the circumstances, the employees “would
reasonably believe that the employee in question [the alleged
agent] was reflecting company policy and speaking and acting
for management”). I therefore find that Smith acted as Re-
spondent’s Section 2(13) agent.
b. Smith’s alleged threat
I next examine whether Smith’s words would reasonably
tend to unlawfully coerce employees in Ching and
Wolfgramm’s position. Because Smith did not explicitly
threaten to have them arrested and because no Hotel employee
had previously been “trespassed,” the potential repercussions to
Ching and Wolfgramm for disobeying his directive were not
clear. However, because Smith (as instructed) specifically
invoked the “trespass” procedure—which was known to in-
volve an automatic one-year penalty from the Hotel—I find that
a reasonable employee would assume that some level of disci-
pline or reprisal was at stake. In any event, Smith’s statements
also amounted to an order that the employees cease their hand-
billing conduct or face unspecified consequences. As such, if
their activity was protected, this directive constituted an unlaw-
ful threat of future unspecified reprisals. See Lancaster Fair-
field Comm. Hospital, 311 NLRB 401, 401 (1993) (directing
employees to cease engaging in protected conduct constitutes a
threat of future unspecified reprisals for engaging in such activ-
ity); see also Casino Pauma, 363 NLRB No. 60, slip op. at 9
(2015) (order that employees cease lawful handbilling consti-
tutes unlawful interference with protected activity in violation
of 8(a)(1)).
c. The entrance area as a work vs. nonwork area
Whether Ching and Wolfgramm’s conduct on August 11 was
protected turns, of course, on whether it was conducted in a
work or nonwork area of the Hotel. The Board law is clear that
activities such as security, maintenance and valet parking,
which typically occur in a hotel lobby, are incidental to a ho-
tel’s primary function, and thus insufficient to transform a ho-
tel’s front entrance area into a “work area” where an employer
may lawfully ban employee distributions. Casino Pauma, su-
pra; Remington Lodging & Hospitality, LLC (Sheraton Anchor-
age), 363 NLRB No. 6 (2015); Remington Lodging & Hospital-
ity, LLC (Sheraton Anchorage), 362 NLRB No. 123 (2013);
Santa Fe Hotel, Inc., 331 NLRB 723 (2000). Respondent ar-
gues that, due to the lower lobby’s open-air design, the refusal
to allow Ching and Wolfgramm distribute handbills on August
11 should not be judged by this standard. Specifically, accord-
ing to Respondent, the Hotel operation’s primary function dif-
fers from that of a traditional hotel or casino hotel, in that it
includes providing “outdoor lounging and food and beverage
services to its guests”; the lower lobby, Respondent asserts, is
“essential” to this function, in that it provides a setting for
guests to enjoy food as well as a tropical, outdoor lounging
experience. (R. Br. at 37, 40)34 Furthermore, Respondent ar-
gues that, unlike the handbillers in prior cases, Ching and
Wolfgramm were not positioned “outside” a hotel entrance, but
rather stood “inside” the hotel; that is, behind the red curb line,
which should be considered a work area.
I disagree with Respondent that the Board’s prior hotel
handbilling cases are inapplicable here. As a preliminary mat-
ter, I am not convinced that the lower lobby is significantly
different from any other lobby area where departing guests wait
with their luggage for the next stage of their travel. While Re-
spondent’s guests may enjoy the local climate while they wait,
the lobby itself does not provide ocean or sky views, and the
record evidence demonstrates that most of the waiting guests
are either watching television, napping or engaging with their
smartphones. Moreover, unlike the lobby area considered by
the Division of Advice in Hyatt Hotels Corp d/b/a Hyatt Re-
gency Century, Case 31–CA–088555, Advice Memorandum
dated April 11, 2013, the Hotel operates no bar or restaurant in
the lower lobby and provides no regular live entertainment

34 In this regard, Respondent has moved for administrative notice of
certain facts, including the temperatures in Anchorage and Honolulu on
the days handbilling occurred in this and the prior cases. (See R. Exh.
20) As neither the Board decisions nor the underlying administrative
law judge decisions in the Sheraton Anchorage cases considered An-
chorage’s weather in finding that certain handbilling took place in a
nonwork area, my taking notice of such facts would be inappropriate.
Respondent’s Motion to Take Administrative Notice, which additional-
ly requests that I take notice of an unauthenticated photograph of the
Sheraton Anchorage hotel, is hereby denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
there.35 Under these circumstances, I cannot find that the
maintenance of an open-air lobby that allows Hotel guests,
along with the general public, to enjoy the agreeable local cli-
mate itself renders that space integral to Respondent’s provi-
sion of lodging and guest services.36
I also decline to find that Ching and Wolfgramm lost the
Act’s protection based on where they stood when Smith con-
fronted them. As a preliminary matter, an area does not gain
“nonwork” status based solely on its physical location but ra-
ther on the activity that is conducted there.37 The photographic
and testimonial evidence indicates that Ching and Wolfgramm
stood in the entry area in front of large pillars and plants, which
form the only physical barrier of any kind between the drive-
way and the lounge area. But for the lack of a structural façade,
they were positioned similarly to the employees in the Board’s
prior hotel handbilling cases, and, as in those cases, in an area
where the only operations carried out are incidental to the Ho-
tel’s main function.
For the above reasons, I find that the entrance area, as I have
defined it above, constitutes a nonwork area of the Hotel, and
therefore find that Respondent, by Smith, unlawfully threatened
Ching and Wolfgramm with unspecified reprisals if they hand-
billed there. Finally, I would note that, even were the area
where Ching and Wolfgramm stood found to be a working area,
Smith’s order would be unlawful, in that – based on his explicit
instructions from Hotel management – he threatened to “tres-
pass” them if they did not leave the Hotel property, not just the
lower lobby. As such, to the extent that his order acted to ban
the employees from handbilling anywhere on Respondent’s
property, it was unlawful regardless of where they stood when
Smith issued it.
CONCLUSIONS OF LAW
1. Respondent Aqua-Aston Hospitality, LLC d/b/a Aston
Waikiki Beach Hotel and Hotel Renew is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By issuing employees Edgardo Guzman and Santos “Son-
ny” Ragunjan written discipline for engaging in union and/or
protected activity, Respondent has violated Section 8(a)(3) and
(1) of the Act.
3. By the following acts and conduct, Respondent has violat-
ed Section 8(a)(1) of the Act:
(a) threatening employees with discharge for engaging in un-

35 In any event, an Advice Memorandum does not constitute Board
law and has no binding effect on me. I therefore decline to give it any
significant weight. See Glendale Associates, Ltd., 335 NLRB 27, 33–
34 (2001) (citations omitted).
36 Respondent’s suggestion that it may declare its lobby a work area
because it allows handbilling in alternative non-work areas misreads
the Board law; where employee access is at issue, the employer’s pro-
vision of alternative access is not a defense. See Mazzara Trucking &
Excavating Corp., 362 NLRB No. 79, slip op. at 4 (2015) (discussing
differing standards governing lawful restrictions on employee versus
nonemployee access for purposes of organizing).
37 For this reason, I reject as irrelevant Respondent’s claim that the
employees stood “inside” the Hotel’s “entrance” as demarcated by the
red-painted curb line. (R. Br. at 35.)
ion and/or protected activity;
(b) ordering employees to cease engaging in union and/or
protected activity; and
(c) soliciting employees to disclose their union sympathies.
4.The unfair labor practices, described above, affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. On these findings of fact and conclusions
of law and on the entire record, I issue the following recom-
mended38
ORDER
Respondent, Aqua-Aston Hospitality, LLC d/b/a Aston Wai-
kiki Beach Hotel and Hotel Renew, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Disciplining employees because they engaged in union
and/or protected activity;
(b) Ordering employees to cease engaging in union and/or
protected activity;
(c) Threatening employees with discharge for engaging in
union and/or protected activity;
(d) Soliciting employees to disclose their union sympathies;
or
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days from the date of this Order, remove from
its files any reference to its unlawful discipline of Edgardo
Guzman and Santos (“Sonny”) Ragunjan, and within 3 days
thereafter notify each of them in writing that this has been done
and that this discipline will not be used against him in any way.
(b) Within 14 days after service by the Region, post at its fa-
cility in Honolulu, Hawaii, copies of the attached notice marked
“Appendix” 39 in English, Ilocano and Tagalog. Copies of the
notice, on forms provided by the Regional Director for Region
20, after being signed by Respondent’s authorized representa-
tive, shall be posted by Respondent and maintained for 60 con-
secutive 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

38 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
39 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH AND HOTEL RENEW
that, during the pendency of these proceedings, Respondent has
gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by the Respondent at any time since
May 19, 2015.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 20 a sworn certification of a re-
sponsible 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 insofar
as it alleges violations of the Act not specifically found.
Dated: Washington, D.C. May 31, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefits and pro-
tection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything that interferes with these rights.
Specifically:
WE WILL NOT discipline you for discussing UNITE HERE!
Local 5 (the Union) with your coworkers, including asking
them to take pictures for the Union and/or to sign authorization
cards for the Union.
WE WILL NOT threaten you with unspecified reprisals for
concertedly handbilling at the entrance to the Aston Waikiki
Beach Hotel lower lobby or any other nonwork area at the As-
ton Waikiki Beach Hotel or Hotel Renew (the Hotel properties)
seeking to publicize the Union’s organizing campaign at the
Hotel properties.
WE WILL NOT order you not to engage in rallies in support of
the Union.
WE WILL NOT order you not to visit your coworkers’ homes
to discuss the Union.
WE WILL NOT threaten you with discharge by telling you that
you are lucky to have jobs.
WE WILL NOT ask you to disclose your feelings about the Un-
ion by inviting you to “apologize” for engaging in conduct in
support of the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL, within 14 days of this Order, remove from our files
any reference to the unlawful written warnings issued to Ed-
gardo Guzman and Santos “Sonny” Ragunjan, and WE WILL,
within 3 days thereafter, inform each of them in writing that
this has been done and that those written warnings will not be
used against them in any way.
AQUA-ASTON HOSPITALITY, LLC D/B/A WAIKIKI
BEACH HOTEL AND HOTEL RENEW
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20–CA–154749 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.