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

National Labor Relations Board - Board Decisions

Oct 24, 2018

367 NLRB No. 27 (N.L.R.B. 2018)

367 NLRB No. 27
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–167132, 20–CA–
171004, 20–CA–171102, and 20–CA–181350.
October 24, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On April 12, 2017, Administrative Law Judge Jeffrey
D. Wedekind issued the attached decision. The Re-
spondent filed exceptions and a brief in support, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.

1 Pursuant to Reliant Energy, 339 NLRB 66 (2003), the Respondent
filed a postbrief letter calling the Board’s attention to recent case au-
thority.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s dismissals of the allegations
that the Respondent violated Sec. 8(a)(1) by, through its executive
housekeeper, telling an employee that she was hurt by seeing the em-
ployee participate in a union rally and by engaging in unlawful surveil-
lance of employees’ union activities outside the employee entrance at
the rear of the hotel.
In support of his finding that the Respondent unlawfully imposed a
performance management plan (PMP) on employee Faustino Fabro, the
judge cited testimony indicating that it would have been unusual for
employees of Hawaiian and Filipino descent to complain about another
employee in such an open and public way. The Board interprets the
judge’s language as describing the testimony rather than relying on any
such characterizations in his own analysis. Because the evidence
shows that the Respondent implemented the PMP for pretextual rea-
sons, Member Kaplan joins his colleagues in adopting the judge’s find-
ing that the Respondent unlawfully imposed the PMP.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by directing off-duty employees not to distribute leaflets in the
lower lobby area of the hotel, Member Kaplan relies on the Board’s
earlier finding that the lower lobby is a nonwork area as extant prece-
dent and expresses no opinion regarding whether that finding was cor-
rect. See Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach
Hotel & Hotel Renew, 365 NLRB No. 53 (2017). Member Emanuel
similarly adopts the judge’s finding that the Respondent unlawfully
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.3
Substitute the following for paragraph 1(c).
“(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
Substitute the attached notice for that of the adminis-
trative law judge.
Dated, Washington, D.C. October 24, 2018

______________________________________
Lauren McFerran, Member

______________________________________
Marvin E. Kaplan, Member

________________________________________
William J. Emanuel 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
violated Federal labor law and has ordered us to post and
obey this notice.

prohibited union distribution in the lower lobby area of the hotel in
light of the Board’s previous decision, id., which was enforced by the
Court of Appeals for the District of Columbia Circuit pursuant to a
consent judgment. Aqua-Aston Hospitality, LLC v. NLRB, No. 17-1118
(March 20, 2018). He believes, however, that the Board should consid-
er refining its approach to permissible union distribution in hotel lobby
and front entrance areas, where critical work functions occur such as
greeting guests, valet parking, and security, to better reflect legitimate
employer property interests and workplace operation while preserving
employees' rights to engage in protected activity.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
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 prohibit our off-duty employees from
distributing union leaflets in front of the two pillars in the
open outer area of the lower lobby facing the entrance
driveway or in other nonwork areas.
WE WILL NOT discriminatorily place you on a perfor-
mance management plan or otherwise impose more on-
erous working conditions on you because of your union
or other protected concerted activities or to discourage
such activities.
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, rescind the performance management plan (PMP)
that we implemented regarding relief inspector Faustino
Fabro on June 24, 2016.
WE WILL, within 14 days from the date of the Board’s
order, remove from our files any reference to the PMP
we implemented regarding Fabro, and WE WILL, within 3
days thereafter notify Fabro in writing that this has been
done and that the PMP will not be used against him 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-167132 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.

Trent K. Kakuda, Esq., for the General Counsel.
Robert S. Katz & Christine K.D. Belcaid, Esqs. (Torkildson,
Katz, Moore, Hetherington & Harris), for the Respondent.
Jennifer Cynn, Esq., for the Charging Party.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. This is
the second of two recent litigated proceedings involving alleged
unfair labor practices by Aqua-Aston Hospitality, LLC d/b/a
Aston Waikiki Beach Hotel and Hotel Renew (the Respondent)
in response to an organizing campaign by UNITE HERE! Local
5. The union organizing campaign began in February 2015,
was still active at the time of trial, and included leafleting and
regular early morning rallies with off-duty employees and other
union supporters who sang and made noise by shaking or bang-
ing on cans outside the hotels.
In the prior proceeding (Cases 20–CA–154749 et al.), the
General Counsel alleged that Respondent committed several
unfair labor practices in May and June 2015 in response to the
campaign. Specifically, the General Counsel alleged that Re-
spondent’s executive vice president of operations made various
unlawful statements to employees, including threatening them
with discharge for engaging in such union activities; that Re-
spondent’s security officer unlawfully prohibited off-duty em-
ployees from distributing union leaflets in the lower lobby of
the Aston hotel; and that Respondent unlawfully issued two
employees (Edgardo Guzman and Santos Ragunjan) written
warnings for harassing, threatening, and interfering with the
work of another employee in an effort to get him to support the
union, notwithstanding that Respondent did not honestly be-
lieve they had committed such misconduct. Following a hear-
ing, on May 31, 2016, Administrative Law Judge Mara-Louise
Anzalone issued a decision finding that Respondent violated
Section 8(a)(3) and (1) of the National Labor Relations Act as
alleged. The Board subsequently affirmed. See 365 NLRB No.
53 (April 10, 2017). The consolidated complaints in this pro-
ceeding allege that Respondent likewise committed several
8(a)(3) and (1) violations between October 2015 and June 2016
in response to the campaign.1 Specifically, the complaints al-
lege that the Respondent’s executive housekeeper unlawfully
told an employee that she was hurt by seeing the employee at a
union rally; that Respondent’s security officers unlawfully en-
gaged in surveillance of union leafleting at the employee en-
trance and again directed off-duty employees not to leaflet in
the lower lobby; and that Respondent unlawfully imposed more
onerous working conditions on an employee (Faustino Fabro)
by placing him on a performance management plan because of
his union activities.
A hearing on these additional allegations was held on De-
cember 5–8, 2016. The General Counsel and the Respondent
thereafter filed briefs on February 23, 2017. As discussed be-
low, the General Counsel established by a preponderance of the
evidence that Respondent’s security officer again unlawfully
directed off-duty employees not to leaflet in the lower lobby
and that Respondent imposed more onerous working conditions
on Fabro. However, the General Counsel failed to prove the

1 The first complaint issued on August 31 (Cases 20–CA–167132,
171004, and 171102). The second, alleging that Respondent discrimi-
natorily placed Fabro on a performance management plan, issued on
October 14, 2016 (Case 20–CA–181350). The Board’s jurisdiction is
uncontested and established by the record.
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH HOTEL

3
other alleged violations.2
I. ALLEGED UNLAWFUL STATEMENT BY EXECUTIVE
HOUSEKEEPER CACACHO
The first allegation involves an alleged unlawful statement
by Marissa Cacacho, Respondent’s longtime executive house-
keeper and admitted supervisor, who is responsible for the day-
to-day operations of the housekeeping department for both
hotels. Specifically, the complaint alleges that, on October 30,
2015, Cacacho unlawfully told Cecilia Aradanas, a room at-
tendant/cleaner at the Aston hotel, that she was hurt by seeing
Aradanas participate in a union rally.
As indicated above, the Union began holding the rallies out-
side the hotels in early February 2015. The rallies were held
every 1–2 weeks, usually on Fridays in the early morning, from
6:30–7:30 a.m. It is undisputed that Aradanas, whose shift did
not begin until 8 a.m., always participated in the rallies, and
that she did so again by banging on a can at the early morning
rally on Friday, October 30.
The subject encounter between Aradanas and Cacacho oc-
curred later that day, about 4 p.m., at the end of Aradanas’s
shift. Aradanas was turning in her paperwork and key at the
clerk’s station, when Cacacho came out of her office, walked
by or approached her, and asked, in a tone and voice that
seemed a little angry and louder than usual, who she had been
protesting about outside that morning, and whether she had
been protesting about her, pointing to her own chest. Aradanas
replied that she had not been protesting about Cacacho, and
began walking toward the time clock to punch out. Cacacho
followed along, again asking Aradanas who she was protesting
about and whether it was about her. Aradanas repeated that she
was not protesting about Cacacho. Aradanas then punched out,
the conversation ended, and Cacacho proceeded to the bath-
room.3

2 Citations to the record are included to aid review, and are not nec-
essarily exclusive or exhaustive. In making credibility findings, all
relevant factors have been considered, including the interests and de-
meanor of the witnesses; whether their testimony is corroborated or
consistent with the documentary evidence and/or the established or
admitted facts; inherent probabilities; and reasonable inferences that
may be drawn from the record as a whole. See, e.g., Daikichi Corp.,
335 NLRB 622, 633 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003);
and New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.),
cert. denied 522 U.S. 948 (1997).
3 The foregoing findings are based on Aradanas’s testimony. Caca-
cho dismissively denied both that the conversation occurred and that
she ever saw Aradanas participate in a rally on October 30 or any other
day (“of course not”). However, there are good reasons to believe
Aradanas’s account. First, Cacacho worked Monday–Friday, 7 a.m.–5
p.m.; she was therefore at work during the rallies; and she was undis-
putedly at work on October 30, both during the rally and at the time the
alleged conversation occurred. Second, as indicated above, the rallies
had been held every 1–2 weeks for the past 8 months, and Aradanas
always participated in them. Third, Cacacho never denied observing
the rallies on October 30 or other days (she was never asked). Nor did
she deny that she was told or otherwise learned about Aradanas’s par-
ticipation in the rallies (she was never asked that either). Fourth, alt-
hough Aradanas’s testimony contained some arguable inconsistencies,
she testified through an Ilocano interpreter and the record as a whole
indicates that the inconsistencies were likely due to language and trans-
The General Counsel argues that Cacacho’s foregoing con-
duct was unlawful because “a reasonable employee would con-
clude that Cacacho’s highly personalized statements reflected
the boss’ very unhappy reaction to Aradanas’ noisy participa-
tion in that morning’s union rally” (Br. 36). However, there is
no evidence that Cacacho expressly told Aradanas that she was
personally hurt by Aradanas’s participation in the rallies as
alleged in the complaint. Nor, contrary to the General Coun-
sel’s contention, is Aradanas’s description of the encounter
sufficient to establish that Cacacho did so by implication, or
that she otherwise expressed strong personal displeasure at
Aradanas’s participation in the rallies.4 As indicated above,
Aradanas testified that Cacacho’s tone and voice was only “a
little like angry” and (in response to the General Counsel’s
leading question) “a little louder” than normal (Tr. 227). Fur-
ther, although Cacacho followed Aradanas to the time clock
and asked the questions more than once, according to
Aradanas’s own testimony Cacacho never commented in any
way on Aradanas’s answers, and Cacacho may well have fol-
lowed her at least in part because it was the way to the bath-
room.
The General Counsel also argues (Br. 37) that Cacacho’s
conduct must be considered in light of ALJ Anzalone’s unfair
labor practice findings in the prior case; specifically, her find-
ing that Respondent’s executive vice president of operations,
Gary Ettinger, made various unlawful statements about the
rallies at employee meetings several months earlier, in May
2015, which employees would have reasonably interpreted as
an order to stop the rallies or risk losing their jobs. However,
as indicated above, Cacacho made no statements or comments
whatsoever about the rallies. Her conduct was therefore nothing
like Ettinger’s previous conduct found unlawful by ALJ
Anzalone.
In sum, while a preponderance of the evidence establishes
that an encounter between Cacacho and Aradanas occurred, it
fails to establish that Cacacho’s conduct during the encounter
would have reasonably tended to interfere with employees’
exercise of their statutory rights. See generally El Rancho
Market, 235 NLRB 468, 471 (1978), enfd. 603 F.2d 223 (9th
Cir. 1979); and Exxel Atmos, Inc. v. NLRB, 147 F.3d 972, 975
(D.C. Cir. 1998), cert. denied 119 S.Ct. 795 (1999) (discussing
the standard for finding an 8(a)(1) violation). See also
Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel

lation difficulties. Finally, although Aradanas’s testimony was not
corroborated by any other employees, there is no evidence that any
others were present during the conversation and Respondent does not
challenge her testimony on this basis. On balance, therefore,
Aradanas’s testimony about the encounter was more credible than
Cacacho’s denial.
4 Respondent’s posthearing brief does not specifically object, as vio-
lative of due process or the 10(b) statute of limitations, to evaluating
whether the evidence supports an 8(a)(1) violation on a different theory
or ground than specifically alleged in the complaint. In any event,
Board precedent supports doing so. See, Space Needle, LLC, 362
NLRB No. 11, slip op. at 4 (2015) (finding that a supervisor’s state-
ments to an employee violated 8(a)(1) on the ground that they were
coercive, regardless of whether they constituted an unlawful interroga-
tion as alleged in the complaint).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985);
and Sunbelt Enterprises, 285 NLRB 1153, 1153–1154 (1987)
(finding that the employers’ questioning of open and active
union supporters about why they were supporting the union or
striking did not constitute unlawful interrogation under the
totality of the circumstances). Accordingly, the allegation is
dismissed.
II. ALLEGED UNLAWFUL SURVEILLANCE BY SECURITY
OFFICERS SMITH AND VARGAS
The complaint also alleges that two security officers at the
hotels, Andrew Smith and Roberto Vargas, committed certain
unfair labor practices.5 Specifically, the complaint alleges that,
on January 13 and 27, 2016, Smith and Vargas unlawfully en-
gaged in surveillance of employees’ union activities outside the
employee entrance at the rear of the Aston hotel.
As part of their regular duties, Smith and Vargas jointly con-
ducted daily patrols throughout the property. Their first, so-
called “awareness” patrol was conducted from about 6– 6:15
a.m. until about 7:45 a.m. They always started at the rear of the
Aston hotel near the employee stairway entrance and gated
parking garage. They did so for several reasons, including the
fact that the security office is located there, and because a hos-
tel is located directly across the narrow road behind the hotel
(Lemon Road) and homeless persons and drug addicts often
congregate in the area. They then walked the property, includ-
ing the upper and lower lobby and parking areas, keeping notes
of the time and location of their observations for use in prepar-
ing their daily shift summaries.
Sometimes they walked through areas more than once. And
sometimes they stopped and posted themselves in certain areas
that had a history of problems. For example, they posted on or
by Lemon Road at the rear of the hotel near the employee en-
trance and parking garage. Again, they did this to monitor the
area for homeless and mentally unstable individuals, and also
because employees, managers, and vendors used the road to
access the hotel. Smith made it a habit to welcome the employ-
ees and managers when they arrived for work in the morning
and to assist them in entering the garage by using his key fob to
raise the gate.
Smith and Vargas also checked during the morning patrols
for any signs that a union rally was going to occur, such as
union organizers and supporters congregating at the end of
Lemon Road. They did so because there had been at least three
incidents during 2015 when protestors at the rallies had tres-
passed onto the hotel property. In one incident, a group of
protestors rushed up to the upper lobby area onto the pool deck
and hung a banner over the railing. In another incident, a pro-
tester entered the property from the rear employee entrance and
interrupted a housekeeping briefing by Executive Housekeeper
Cacacho on the loading dock.6 And in a third incident, a group
of about four or five protesters entered the housekeeping de-

5 Both Smith and Vargas were employed by Universal Protection
Services at the time, rather than Respondent. However, Respondent
admits that they were its agents during the relevant events.
6 Because of this incident, Smith and Vargas also made it a practice
to post near the rear entrance on Lemon Road at the end of each morn-
ing awareness patrol.
partment and started yelling at Cacacho to start respecting the
employees. Smith and Vargas also checked for signs of a rally
because there had been a violent confrontation in the past be-
tween a guest and protester. Smith’s practice was therefore to
call the Honolulu police department to assist with crowd con-
trol and safety if it appeared a rally was going to be held.7
On January 13, when Smith and Vargas began their aware-
ness patrol as usual around 6:10 a.m., Smith noticed that four
individuals he recognized as nonemployee union organizers
were gathered at the end of Lemon Road. One was Morgan
Evans, the Union’s director of new organizing, and two others
were organizers he had seen at the union rallies. One of the
organizers (Frank Cave-Lacoste) had a prominent handlebar
mustache, and the other (Nathaniel Felicitas) was wearing a red
union shirt. Instead of conducting a rally, however, around
6:30 a.m., Cave-Lacoste and Felicitas walked down the road
and stationed themselves with leaflets at the property line by
the employee entrance.
Believing Cave-Lacoste and Felicitas were standing on hotel
property, Smith told them to get off it. And they apparently
complied. However, they remained standing next to the proper-
ty line and repeatedly stepped back and forth in a manner that
Smith perceived as intended to taunt him into believing they
might cross it. Smith and Vargas therefore remained posted in
the area to see what the organizers would do and whether they
would trespass onto the hotel property. Vargas stood in the
employee entrance or by the parking garage entrance. Smith
moved around the area; sometimes he stood with or near Var-
gas and sometimes he stood at the outer edge of the property
line, within a few feet of the organizers, and looked up or down
Lemon Road. Both Smith and Vargas also occasionally made
notes about what they observed, but not about employees who
interacted with the organizers or took a leaflet. This continued
until around 7:30 a.m., when Cave-Lacoste and Felicitas
stopped leafleting and left.8

7 The foregoing findings about the hotel security practices and histo-
ry are based on the credible testimony of Smith, who is now employed
by Respondent as its safety and security officer at both hotels. Alt-
hough Smith’s testimony was not corroborated by Vargas (he was not
asked any questions about it), the General Counsel did not present any
contrary testimony or evidence. Nor does the General Counsel’s
posthearing brief offer any reason to discredit Smith’s testimony.
Indeed, the brief mostly ignores it. The sole exception is Smith’s testi-
mony about the three prior instances of trespass by union protesters,
which the General Counsel’s brief insinuates was false. See Br. at 40
(referring to the three prior instances as “purported” instances). How-
ever, insinuation is not argument.
8 The foregoing findings are based on the credible portions of the
testimony given by Smith, Vargas, and Cave-Lacoste, evaluated in light
of all relevant credibility factors (see fn. 2, supra) and the record as a
whole, including photos taken with Cave-Lacoste’s camera on January
13 (GC Exhs. 23–25) and the history of prior incidents involving union
protesters described above. There is no doubt, as confirmed by the
photos, that Cave-Lacoste and Felicitas stood near the employee en-
trance, and that Smith and Vargas posted nearby and observed them.
All other details, however, turn on the testimony and are considerably
less clear. Cave-Lacoste’s testimony was not corroborated by Felicitas
(who was not called to testify); only part of Smith’s contrary testimony
was corroborated by Vargas; and none of the testimony was entirely
consistent with or supported by prior affidavits or reports. For these
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH HOTEL

5
Two weeks later, on January 27, Smith again noticed the
same four nonemployee union organizers gathered at the end of
Lemon Road when he and Vargas began their awareness patrol
at around 6:15 a.m. As before, no rally was held; instead,
around 6:30 a.m., one of the organizers, Cave-Lacoste, walked
over and again began leafleting employees from the same posi-
tion near the employee entrance. This time, Smith did not ac-
cuse Cave-Lacoste of being on the property or otherwise say
anything to him. Nor did Cave-Lacoste taunt Smith as he and
Felicitas had appeared to do on January 13. Nevertheless, both
Smith and Vargas again posted nearby. Vargas stood in the
employee entrance, while Smith again moved around, some-
times within a few feet of Cave-Lacoste, and looked up and
down Lemon Road. They also again occasionally took notes of
their observations, but not of employees interacting with or
taking leaflets from Cave-Lacoste. Smith remained posted in
the area until shortly before 7:30 a.m., and Vargas remained
posted the entire time Cave-Lacoste was there, until shortly
after 7:30 a.m.9
The General Counsel argues that the foregoing conduct by
Smith and Vargas on January 13 and 27 constituted unlawful
surveillance because it was out of the ordinary and coercive
considering its duration and close proximity to the union organ-
izers, citing, e.g., Pacific Beach Hotel, 361 NLRB No. 65, slip
op. at 44 (2014) (observing employees engaged in protected
activity constitutes surveillance when it is done in a way that is
out of the ordinary and coercive, considering such factors as the
duration of the observation, the distance from the employees,
and whether it was accompanied by other coercive behavior).10
The General Counsel argues that the cited history of prior tres-
pass by union organizers or supporters was insufficient to war-
rant or justify the duration and close proximity of their observa-
tion because the incidents occurred during union rallies, not
during union leafleting, and there was no need to stand so close
to the organizers.
As found above, however, it was not out of the ordinary for

reasons, there is insufficient credible evidence, for example, that Smith
and Vargas took notes when an employee received a leaflet, as Cave-
Lacoste testified. There is also insufficient credible evidence that
Cave-Lacoste and Felicitas ever actually crossed the property line, as
Smith testified. However, based on the record as a whole, including the
testimony of Vargas (who is no longer employed by Universal Protec-
tion Services or any other security company and does not work at the
hotels), there is sufficient credible evidence that Smith believed that
one or both were on hotel property when he first saw them, and that
they thereafter stepped back and forth in a way that suggested to Smith
that they might cross the property line. See Vargas’s testimony, Tr.
586–593 (confirming that Smith said “You’re on my property,” and
told Cave-Lacoste and Felicitas to get off it, when they first observed
them by the employee entrance, and that the two organizers thereafter
repeatedly moved back and forward a little bit in a “very odd” manner).
9 The foregoing findings are based on the credible portions of the
testimony given by Smith and Cave-Lacoste, again evaluated in light of
all relevant credibility factors and the record as a whole, including but
not limited to the photographs Cave-Lacoste took (GC Exhs. 27–29).
Vargas did not testify about the events on January 27.
10 The complaint does not allege, and the General Counsel does not
contend, that the subject conduct by Smith and Vargas unlawfully
created the impression of surveillance.
Smith and Vargas to post near the employee entrance on Lem-
on Road. Further, the two union organizers stood right up next
to the property line, and Smith reasonably believed they were
actually on the property when he first observed them by the
employee entrance on January 13. Moreover, they continued
thereafter to step back and forward in a way that Smith reason-
ably perceived as intended to taunt him into believing they
might cross the property line. Particularly in light of the prior
trespass incidents by union organizers or supporters, this was
sufficient to warrant or justify the security guards posting in the
area for the entire duration of the leafleting on both January 13
and 27, regardless of the arguable contextual difference be-
tween leafleting and rallying.
As for the fact that Smith sometimes stood within a few feet
of the organizers, there is no evidence that it was unusual for
Smith to stand where he did when posting in the area. On the
contrary, the record indicates that Smith had to stand out near
the property line to get a full view up and down Lemon Road.
See, e.g., General Counsel Exhibit. 27 (showing how a dump-
ster blocked Smith’s view of oncoming traffic on one side); and
General Counsel Exhibit 28 (showing how vehicles turning into
the garage ramp could block his view down the road on the
other side). Smith was not required to change where he usually
stood on the property when monitoring Lemon Road because
the union organizers chose to stand where they did on January
13 and 27.
Finally, as found above, there is insufficient credible evi-
dence that Smith and Vargas took notes of employees who
interacted with or accepted leaflets from the organizers, or that
they engaged in any other conduct that would have reasonably
tended to coerce employees not to do so.
Accordingly, the allegations are dismissed. Compare Traco,
363 NLRB No. 39, slip op. at 13–15 (2015); and Hoschton
Garment Co., 279 NLRB 565, 566–567 (1986) (finding no
unlawful surveillance under similar or analogous circumstanc-
es).
III. ALLEGED UNLAWFUL PROHIBITION AGAINST OFF-DUTY
EMPLOYEES LEAFLETING IN LOWER LOBBY
The complaint also alleges that, 2 months later, on March 4,
2016, Security Officer Smith unlawfully told two off-duty em-
ployees, Aradanas and Faustino Fabro, that they could not leaf-
let in the lower lobby of the Aston hotel. The allegation is
essentially identical to an allegation in the prior proceeding
which alleged that Smith had unlawfully told two other off-duty
employees the same thing in August 2015. ALJ Anzalone
found a violation with respect to that allegation because the
open outer area of the lower lobby where the two off-duty em-
ployees were standing and leafleting—in front of two pillars
facing the entrance driveway—was a “nonwork” area under
Board precedent, i.e., an area where only activities incidental to
the hotel’s primary function were performed, such as security,
maintenance, and valet parking (citing Casino Pauma, 363
NLRB No. 60 (2015); Sheraton Anchorage, 363 NLRB No. 6
(2015) and 362 NLRB No. 123 (2013); and Santa Fe Hotel and
Casino, 331 NLRB 723 (2000)). And the Board majority
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
agreed.11
Aradanas and Fabro were standing in exactly the same place
when Smith directed them to stop leafleting there on March 4.
See Joint Exhibit 1 and attached exhibits (photos of the area),
General Counsel Exhibit 16 (video of the March 4 events), and
(Tr. 230–238, 250–272) (testimony of Aradanas and union
officials Morgan Evans and Gemma Weinstein). Accordingly,
for the same reason, Smith’s directive violated Section 8(a)(1)
of the Act.12
IV. ALLEGED UNLAWFUL PLACEMENT OF FABRO ON
PERFORMANCE MANAGEMENT PLAN
The final complaint allegation is that Respondent unlawfully
imposed more onerous and rigorous terms and conditions of
employment on Faustino Fabro in late June 2016 by placing
him on a performance management plan because of his union
activities.
Fabro has been employed by Respondent for several years.
At the time of the relevant events, he was an inspector in the
housekeeping department. His primary job was to inspect the
rooms after they have been cleaned by the room attendants. He
was also expected to help clean the rooms if necessary. This
would typically happen when there were a lot of checkouts or
certain rooms needed to be rushed, such as when there were
incoming flight crews who regularly stayed at the hotel pursu-
ant to an airline contract with the hotel. Fabro had served in the
position for about 3 years, since mid-2013, and was one of four
full-time inspectors/inspectresses at the Aston hotel. The only
difference between him and the others was that he was a so-
called “relief” inspector who did not have a fixed station, i.e.,
he was not assigned to the same set of floors each day, but was
instead rotated to whatever set of floors did not have a regularly
assigned inspector that day (for example, because the regularly
assigned inspector was off).
Fabro was also an open and active union supporter. He par-
ticipated in almost every rally since the union campaign began
in February 2015, was interviewed on television, and posted a
lot on Facebook in support of the union. As indicated in the
previous section above, he also leafleted for the union at the
hotel when he was off duty. In addition, he was one of three
employee witnesses who testified for the General Counsel at
the prior unfair labor hearing in early February 2016 about
Executive Vice President Ettinger’s alleged unlawful state-
ments.
Beginning in early May 2016, and continuing throughout
that month, Marissa Cacacho, the executive housekeeper, re-

11 ALJ Anzalone also noted that Smith’s order required Aradanas
and Fabro to leave the hotel property, not just the lower lobby, and
Acting Chairman Miscimarra affirmed solely on this additional or
alternative basis. See 365 NLRB No. 53, slip op. at n. 3. In this case,
however, the evidence does not support such an additional or alterna-
tive rationale. See the testimony of Evans, who spoke with Smith
during the incident, Tr. 269–270 (Smith said Aradanas and Fabro could
not leaflet in “work areas”).
12 Although advised of its right to do so both before and at the hear-
ing, the Respondent failed to present any newly discovered and previ-
ously unavailable evidence or changed circumstances that would war-
rant a different finding. See GC Exh. 1(t), and Tr. 40–42.
ceived numerous reports or complaints about Fabro. They came
from various personnel, including the two housekeeping super-
visors (Connie Quibilan and Elvie Rivera), the housekeeping
clerk, and several room attendants, and reported or complained
that Fabro had failed to properly perform his job in various
ways. Specifically, they reported or complained that he failed
to help certain room attendants clean rooms; failed to respond
to radio calls; sometimes cleared rooms for occupancy that
were still dirty; ignored, refused to talk to, acted rude to, and
failed to help or respond to requests for help from certain room
attendants; failed to notify certain room attendants of their mis-
takes so they could correct them; and pouted and displayed
negativity during work. (GC Exhs. 3(a)–(f), (h), (j), and 5.)
Several of the room attendants’ complaints also explicitly men-
tioned or referenced the union. One attendant complained that
Fabro pressured him to support the union during work (GC
Exhs. 3(g) and 4(b)). Three others complained that Fabro only
helped prounion attendants and/or never greeted pro-company
employees (GC Exh. 4(a), (c), (e)). Another complained that
Fabro always made him go back and re-do his work, but did not
tell prounion attendants to do so (GC Exh. 4(d)).
Except for the two reports submitted by supervisors Quibilan
and Rivera, which were typed, and one from an attendant,
which was submitted in handwriting, all of the foregoing re-
ports or complaints were made orally to Cacacho. However,
Cacacho typed up the oral complaints and had the employees
sign and date them.
Around the same time, on May 16, Cacacho also received a
typed “Petition Against Faustino Fabro” signed by 54 (well
over half) of the nonsupervisory housekeeping department em-
ployees, including room attendants, housemen, inspectresses,
and the clerk. The petition was addressed to the general man-
ager of the hotels, Mark DeMello, and stated:

We the undersigned team members of the Aston Waikiki
Beach Hotel, Housekeeping Department would like to peti-
tion Faustino Fabro to be removed as a team member of our
department.

The petition listed numerous reasons why Fabro should be
removed. Many were identical or similar to the individual
complaints or reports, such as he “doesn’t greet the pro-
company teammates,” “is unfair [and] chooses who he wants to
help,” “displays a negative attitude towards his teammates
[and] is always pouting,” “talks about the union when he is on
the floors,” “blam[es] us that if not because of us going back to
the company, the hotel should have been unionize[d],” “tells us
to make up our minds to go back to the union,” and “does not
respond to radio calls” or is “mean” when he does. Other listed
reasons included that he “went to the broadcast media and ru-
ined the reputation of the hotel by telling lies,” “provides wrong
information to us,” “lie[s],” and “creat[es] stories that are not
true” about management and support for the union, “doesn’t
cooperate with his fellow inspectresses,” and “bad mouth[s] our
housekeeping managers.” (GC Exh. 2).
Cacacho forwarded both the petition and the individual re-
ports and complaints to DeMello and the rooms division man-
ager, Jenine Webster. DeMello and Webster in turn forwarded
them to the corporate office, specifically Ettinger, HR Vice
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH HOTEL

7
President Janice Wakatsuki, and General Counsel Liane Kelly.
At their instruction, DeMello and Webster then interviewed the
individuals who had submitted the complaints. Thereafter, on
June 7, they also met with Fabro. They told him about the
complaints and the petition and asked for his response.13
DeMello and Webster subsequently presented the results of
the interviews to Ettinger, Wakatsuki, Kelly, and Cacacho.
After some discussion, the six of them collectively decided to
implement a 30-day “performance management plan” (PMP).
However, as no PMP had ever been implemented before, De-
Mello and Webster had to prepare one. As ultimately drafted
and approved, the PMP consisted of essentially three parts.
First, every room attendant that Fabro worked with each day
would be given a form to complete at the end of the workday to
evaluate his performance as inspector. The form would list the
following 8 performance areas or factors:

(1) Greets team members and guests throughout the shift;

(2) Begins each day by performing a radio check, checking
supplies, and looking at his assignment within his section. Is
responsive to radio requests throughout the shift;

(3) Checks in with each room attendant by 10 am each day,
examines their assignment paper, and determines if they are
going to have a challenge. Checks in again by 2 pm to see if
there are difficulties and reacts by assisting or calling House-
keeping for assistance.

(4) Follows-up in-person with room attendants when there are
room discrepancies that should be addressed. These include,
but are not limited to: bed-making, room smell, bathroom
cleanliness, amenity supplies, dusting, and lanai details.

(5) Follows-up with Housekeeping when there are problems
with his radio or the room attendants in his section.

(6) Assists when called upon.

(7) Assures that the carts in his section are neat, adequately
stocked, and corridors are clear of trash and debris.

(8) Releases rooms which are clean and ready, in a fast, effi-
cient manner. Reacts to rush rooms by informing the room
attendant, and assisting if necessary.

Each attendant would be asked to check on the form whether
Fabro’s performance on each factor was unsatisfactory, satis-
factory, or exceeds expectations, and to provide supporting
comments in the space provided after each factor.

Second, at the end of each week, Cacacho would also rate
Fabro based on the same eight factors, as well as the follow-
ing two additional factors:

(9) Responsive to the requests from Rooms Control and
Housekeeping Management, specific to his section or assign-
ment.

13 The record is unclear how Fabro responded at the meeting on June
7. DeMello testified that Fabro generally denied everything. Webster,
however, testified that Fabro admitted speaking to the attendants about
the union during working time sometimes, and that he gave inconsistent
responses to other questions. Fabro himself was not called to testify.
(10) Attends departmental briefings for which he is sched-
uled.

Third, a summary would be prepared showing the number of
responses received on each factor, the percentage of responses
that rated Fabro unsatisfactory, satisfactory, or exceeds expec-
tations, and a sample of the comments for that week. Cacacho
would then meet with Fabro to review it.
On June 24, DeMello, Webster, and Cacacho met with Fabro
to inform him about the PMP. They provided Fabro with an
unsigned copy of the petition and advised him that they had
determined, based on their investigation of the matter and writ-
ten statements they had received, that there appeared to be “in-
terpersonal conflicts or issues affecting the productivity and
well-being of the housekeeping department.” They told Fabro
that they had therefore decided to implement a PMP for 30
days, with extensions as needed and/or appropriate. They also
described how the PMP would be implemented and provided
him with a copy of the evaluation form that the attendants and
Cacacho would complete. They assured Fabro that the PMP
was “not disciplinary,” but was intended to provide him with an
“additional learning opportunity to improve how [he] relate[d]
and work[ed] with other team members and provide[d] assis-
tance to the housekeepers whose rooms [he] inspect[ed].”
They “encourage[d]” him to “work with the room attendants
and [his] managers to improve all areas addressed.” (GC Exh.
6(a); and Tr. 377.)
The PMP began the following day as planned. DeMello,
Cacacho, supervisors Quibilan and Rivera, or the inspectresses
distributed the evaluation forms to the attendants who worked
with Fabro each day and instructed them to complete and return
the forms at the end of the workday. Cacacho also completed
an evaluation form at the end of each week. Webster then pre-
pared a summary of the results and she and Cacacho met with
Fabro to review it.
Webster and Cacacho had four such meetings with Fabro, on
July 7 and 25, and August 9 and 19.14 At each of the meetings,
Fabro was advised that well over a majority of the attendants
had rated him unsatisfactory on all eight factors. As for Caca-
cho’s evaluations, Fabro was advised that she had rated him
unsatisfactory on all 10 factors the first week; on 6 factors (1–4,
6, and 9) the second week; and 5 factors (1–4 and 6) the third
and fourth weeks. (See GC Exhs. 7–14; and Tr. 75–86.)
Nevertheless, at the last meeting on August 19, Webster and
Cacacho informed Fabro that the PMP would not be extended
further.15 They advised Fabro that he was expected to perform
at a satisfactory level in all aspects of his position in the future,
and that the failure to do so “will result in disciplinary action.”
(GC Exh. 15; Tr. 87–88.) However, as of the December 2016
hearing, no further complaints or petitions had been made or
filed against Fabro, and no disciplinary action had been taken
against him.
As indicated above, the General Counsel contends that the
PMP violated Section 8(a)(3) and (1) of the Act because it im-
posed more onerous working conditions on Fabro and was mo-

14 Wakatsuki also attended the July 25 meeting with Fabro.
15 The PMP was initially extended beyond 30 days because Fabro
was out sick some days.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
tivated by union animus. Respondent, on the other hand, con-
tends that the PMP did not impose any onerous terms and con-
ditions of employment on Fabro; that the General Counsel
failed to establish union animus; and that the PMP would have
been implemented under the circumstances even absent Fabro’s
union activity. As discussed below, a preponderance of the
record evidence supports the General Counsel.
A. Whether the PMP Imposed More Onerous Working
Conditions on Fabro
There is no evidence or contention that the PMP required
Fabro to physically perform any additional or different duties as
an inspector.16 However, as indicated by the General Counsel,
the PMP subjected Fabro to closer supervision through daily
written evaluations of his work by the attendants, weekly writ-
ten evaluations by Cacacho, and regular meetings with Cacacho
and Webster to review the evaluations. Accordingly, it consti-
tuted more onerous working conditions under Board precedent.
Cf. Ferguson-Williams, Inc., 322 NLRB 695, 700–701 (1996)
(manager subjected a prounion employee to closer supervision
in violation of Section 8(a)(1) and (3) of the Act by directing a
supervisor to inspect the employee’s vehicle every day, make a
report of her attitude, make a file on her, and know where she
was at all times); and Pinter Bros., 227 NLRB 921, 939–940
(1977) (owner subjected an employee who had filed charges
and testified against the company to closer supervision in viola-
tion of Section 8(a)(4), (3), and (1) of the Act by criticizing and
inquiring into her work), enfd. mem. 591 F.2d 1331 (2d Cir.
1978). See also Olympic Limousine Service, 278 NLRB 932,
936 (1986) (manager’s statement to prounion employee that, if
the union won the election, he would more closely supervise his
work by following him around with a pen and pad all day con-
stituted a threat of more onerous working conditions in viola-
tion of Section 8(a)(1) of the Act); and T&T Machine Co., 278
NLRB 970, 973 (1986) (plant superintendent violated Section
8(a)(1) of the Act by directing a leadman to “keep an eye out”
on every pump built by two employees because of their union
activities).
B. Whether the PMP was Motivated by Union Animus
The parties agree that the analytical framework set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), is appropriate for
evaluating whether the PMP was unlawful. Under that frame-
work, the General Counsel must prove by a preponderance of
the direct and/or circumstantial evidence that animus against
union or protected activity was a substantial or motivating fac-
tor in the adverse employment action. At a minimum, the Gen-
eral Counsel must make an initial showing that the employee
engaged in union or protected activity, the employer knew or
believed that that the employee did so, and the employer har-
bored animus against such activity. Animus may be established
by the employer’s antiunion statements or other unlawful con-
duct, or inferred from the circumstances, such as the timing of
the adverse action and other evidence that the employer’s cited

16 The General Counsel does not contend that the 10 factors utilized
by Respondent for evaluating Fabro were inconsistent with his normal
duties as an inspector.
reason for the action was a pretext, i.e. that the employer fabri-
cated the cited reason or did not really believe that it had merit
or warranted the adverse action.
If the General Counsel makes the required initial showing,
the burden shifts to the employer to prove, as an affirmative
defense, that it would have taken the same action even in the
absence of the employee's union or protected activity. Howev-
er, if the General Counsel shows that the reason cited by the
employer for the adverse action was a pretext, the analysis is at
an end as the employer by definition cannot meet its burden.
See, e.g., Big Ridge, Inc., 358 NLRB 1006, 1029–1032 (2012),
reaffd. 361 NLRB No. 149 (2014), enfd. 808 F.3d 705, 714–
715 (7th Cir. 2015); Lucky Cab Co., 360 NLRB No. 43 (2014);
Metropolitan Transportation Services, 351 NLRB 657, 662–
663 (2007); and Multi-Ad Services, 331 NLRB 1226, 1240–
1242 (2000), enfd. 255 F.3d 363 (7th Cir. 2001), and cases
cited there. See also Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466, 468–470 (9th Cir. 1966).
Here, there is no dispute that Fabro engaged in union activity
and that Respondent knew it. Rather, the primary dispute is
over whether Respondent had animus against union activity.
As discussed below, there are several factors that establish such
animus, including Respondent’s prior unfair labor practices,
and various other facts and circumstances indicating that the
petition and complaints were a pretext to target Fabro with the
PMP.
1. Respondent’s prior unfair labor practices
Respondent’s prior 8(a)(1) statements. As indicated by the
General Counsel, Executive Vice President Ettinger’s state-
ments at the employee meetings in May 2015 about the union
campaign, which ALJ Anzalone found violated 8(a)(1) of the
Act in the prior proceeding, are sufficient to establish that Re-
spondent harbored union animus. See, e.g., R.J. Corman Rail-
road Construction, LLC, 349 NLRB 987, 989 (2007) (finding
that the employer’s animus was established by its 8(a)(1)
statements). Although the PMP was not implemented until
approximately a year after Ettinger made the statements, the
union campaign was still ongoing, Fabro was still openly and
actively supporting it by leafleting and participating in the ral-
lies, and Ettinger participated in the decision to implement the
PMP.
Respondent’s prior 8(a)(3) violations. As discussed above,
ALJ Anzalone also found that Respondent violated Section
8(a)(3) of the Act by disciplining Guzman and Ragunjan in
June 2015, assertedly for harassing, threatening, and interfering
with the work of another employee during the course of their
efforts to get him to support the union. Applying the analysis
in NLRB v. Burnup & Sims, 379 U.S. 21 (1964)—the appropri-
ate analysis where an employer disciplines an employee for
misconduct in the course of otherwise protected activity—ALJ
Anzalone found that the discipline was unlawful because Re-
spondent did not have an honest belief that Guzman and Ra-
gunjan had actually engaged in misconduct. Such a finding is
essentially equivalent to a finding that the discipline was moti-
vated by union animus. See Magnolia Manor Nursing Home,
284 NLRB 825 fn. 1 (1987) (although Burnup & Sims only
addressed whether or when discipline for misconduct during
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH HOTEL

9
otherwise protected activity violates 8(a)(1), it follows that such
discipline also constitutes 8(a)(3) discrimination if the employ-
er had no good-faith belief that the employee had engaged in
misconduct). Accordingly, like the prior 8(a)(1) statements, the
prior unlawful discipline of Guzman and Ragunjan demon-
strates Respondent’s animus.17
The General Counsel argues that Respondent’s animus is al-
so demonstrated by Cacacho’s statements to Aradanas on Oc-
tober 30, 2015, Smith’s surveillance of the union organizers’
leafleting on January 13 and 27, 2016, and the unlawful refusal
to allow off-duty employees to distribute union leaflets in the
lower lobby area in August 2015 and March 2016. However,
as discussed above, Cacacho’s and Smith’s forgoing conduct
was not unlawful. Nor did it otherwise reflect animus toward
the union campaign. As for the unlawful prohibition against
off-duty employees leafleting in the lower lobby, given the
substantial other evidence of animus, it is unnecessary to decide
whether that prohibition also constitutes evidence of animus.18
2. Evidence of pretext
As indicated by the General Counsel, there are also various
facts or circumstances that, considered together, indicate that
Respondent orchestrated the complaints and the petition against
Fabro and/or seized on them as a pretext for implementing the
PMP.19
The coordinated timing of the complaints and the petition.
As discussed above, the individual complaints and the petition
were all filed around the same time, in May 2016. However,
there is no indication in the complaints or the petition, or any
other evidence, that there was any change in Fabro’s perfor-
mance or attitude at work in the previous week or month that
precipitated them. Both the complaints and the petition cite a
wide variety of grievances, most of which are nonspecific even
as to what year, much less what month, week, or day, they oc-
curred. Further, there is no evidence that any similar com-
plaints were made prior to May, and there were admittedly no
complaints in the months after the PMP concluded (notwith-
standing that a supermajority of the attendants consistently
rated him unsatisfactory in every area on the evaluations).
Finally, Webster, DeMello, and Wakatsuki acknowledged that
it was highly unusual, both for so many complaints to be made
in such a short period, and for the employees, especially those
of Filipino or Hawaiian ancestry, to complain in such an open

17 As indicated above, the Board affirmed ALJ Anzalone’s factual
findings and legal conclusions.
18 For the same reason, it is also unnecessary to consider or rely on
previous alleged unfair labor practices committed by Respondent in
February and March 2015 as evidence of animus. See the Board’s
recent decision reported at 365 NLRB No. 44 (2017), which set aside a
prior informal settlement agreement of those alleged unfair labor prac-
tices, found that the allegations were properly deemed admitted by
Respondent, and granted the General Counsel’s motion for a default
judgment with respect to those allegations pursuant to the noncompli-
ance provisions of the settlement.
19 The complaint does not separately allege that Respondent unlaw-
fully orchestrated the complaints and the petition. However, the Gen-
eral Counsel made clear on the first day of hearing that evidence would
be presented regarding management involvement in the complaints and
the petition in order to establish pretext (Tr. 39–40, 167).
and public way by signing a petition. (Tr. 130–133, 139, 359,
361, 486–487.) Thus, it is a reasonable inference that the com-
plaints and the petition were part of a coordinated and orches-
trated effort to target Fabro.
Cacacho’s involvement with the complaints and the petition.
As discussed above, Cacacho typed up all but one of the em-
ployee complaints and had the employees sign and date them.
According to Cacacho, she did not ask or instruct the employ-
ees to make the complaints, but just typed up what the employ-
ees orally came and told her. However, none of the employees
were called to corroborate Cacacho’s testimony. Further, there
are reasons to doubt it. For example, several of the initial com-
plaints are extremely general or vague and do not appear to be
prompted by any specific incidents. See GC Exhs. 3(e), (f), (g),
(i), and (j). Moreover, two of the complaints, one which Caca-
cho typed and the other which is handwritten, are identical.
See GC Exhs. 3(i) (Remy Inez) and 3(j) (Glenda Sebastian)
(“There are times that Faustino Fabro is my Inspector and I am
bothered by him and not comfortable to work with him because
when he comes to my floor, he don't talk to me, always pouting
and when he come and inspect, he don't say anything and
leave.”). Cacacho provided no explanation for this.
There are similar problems with Cacacho’s testimony about
the petition. Cacacho testified that she received the typed peti-
tion from Alona Afable, a room attendant who also serves as a
temporary inspectress, on May 16, after the Monday morning
briefing, and that she did not know anything about it before-
hand. However, again, her testimony was not corroborated.
Afable was not called to testify. Respondent instead called
Alicia Baldos, another inspectress who signed the petition
against Fabro and opposes the union, and asked her if she knew
who created the petition. Although Baldos testified that Afable
created it, she never explained how she knew this. She denied
any involvement in soliciting signatures, and also denied any
knowledge of whether Cacacho had any involvement in creat-
ing the petition. (Tr. 451–452.) 20
Further, Cacacho admitted that eight of the employees who
orally complained to her about Fabro on May 14–16 did so
before she received the petition. As indicated by the General
Counsel, it is unlikely that none of them, not even the seven
who signed the petition on or before the same day they com-
plained, would have mentioned the petition to Cacacho. More-
over, no explanation was provided why the petition was given
to Cacacho. Although she was responsible for the day-to-day
operations of the department, the petition was not addressed to
her, but to General Manager DeMello. Like Cacacho, DeMello
had an office at the hotel, worked a Monday–Friday daytime
schedule, and regularly met with and briefed the housekeeping
employees.

20 Room attendant Digna Cadaoas, one of the General Counsel’s
witnesses, testified that she was asked to sign the petition three times
before she signed it; the first two times by Lisa Indencion, another
inspectress, and the third time by both Indencion and Afable. (Tr. 159–
172, 189, 193.) However, this testimony does not corroborate Caca-
cho’s testimony that she received the completed petition from Afable
and that she had no knowledge of or involvement with the petition
beforehand.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
Thus, based on the record as a whole,21 there is good reason,
not only to disbelieve Cacacho’s testimony about the com-
plaints and the petition, but to infer that the truth is the oppo-
site. See generally NLRB v. Howell Chevrolet, 204 F.2d 79, 86
(9th Cir. 1953), affd. 346 U.S. 482 (1953). See also Lucky Cab,
360 NLRB No. 43, slip op. at 6–7 & fn. 15; and Seaboard
Farms of Athens, Inc., 292 NLRB 776, 787 (1989) (false or
discredited testimony regarding the reasons for an adverse ac-
tion support a finding of pretext).
Cacacho’s statement to employee Cadaoas about the pur-
pose of the evaluations. Digna Cadaoas, a room attendant at
the Aston, was given a PMP evaluation form to complete on
each of the 5 days that Fabro was assigned to her floor during
July. Cadaoas testified that, on the second day, the form was
given to her by Cacacho, and that Cacacho told her Fabro was
being evaluated so that he would be dismissed and there would
not be anyone to lead the rallies (Tr. 172–175, 184–185, 191).
There are substantial reasons to credit Cadaoas’s testimony.
Cadaoas has no apparent interest in the outcome or strong bias
in favor of the union or Fabro. She has not participated in the
union rallies since 2015, and she signed the petition against
Fabro on May 13, 2016 (see fn. 20, supra). Moreover, Cacacho
did not deny making the statement to Cadaoas. She testified
that she distributed the evaluation forms twice during the PMP,
and that the first time she did so, she told the attendants the
purpose was to “get feedback . . . to help [Fabro] to become a
better inspector” (Tr. 426). However, she was never asked
what she told the attendants the second time, or whether she
ever made any other statements about the evaluations to Ca-
daoas or any other attendant.
Respondent argues that Cadaoas’s testimony should never-
theless be discredited, as her August 5, 2016 pretrial affidavit
made no mention of such a statement by Cacacho. Rather, her
affidavit only mentioned such a statement being made by Lisa
Indencion, an inspectress, when Indencion asked her to sign the
petition against Fabro in May (Tr. 191–193). Further, no disci-
plinary action was taken against Fabro after the PMP ended on
August 19. However, Cadaoas explained that her prior affida-
vit was accurate but simply not complete, i.e. that both Inden-
cion and Cacacho made such a statement to her, the former
when she was asked to sign the petition against Fabro, and the
latter when she was asked to complete an evaluation of Fabro
(Tr. 191–192, 198). As for the lack of any post-PMP discipli-
nary action against Fabro, this is not particularly probative
given that the instant unfair labor practice charge was served on
Respondent on August 3 alleging that the PMP was unlawful.
On balance, therefore, considering all relevant credibility
factors and the record as a whole, Cadaoas’s testimony is wor-
thy of belief. See fn. 2, supra; and George W. Kugler, Inc., 258
NLRB 122, 124 (1981).
Supervisor Rivera’s conversations with Cadaoas about the
evaluations. Cadaoas rated Fabro unsatisfactory in all eight

21 See also fn. 3, above, regarding Cacacho’s dismissive denial about
her encounter with Aradanas on October 30, 2015.
factors on the first PMP evaluation she completed.22 However,
on the second evaluation, she rated him satisfactory in all eight
factors. Cadaoas testified that, the next day, supervisor Rivera
called her said, “Did you know what you signed? Why did you
check all the satisfactory boxes?” Cadaoas responded that she
checked all the satisfactory boxes because Fabro had helped her
that day. Rivera replied that it would be better for her not to
put anything if she was going to check satisfactory. According-
ly, she did not fill out the third evaluation form she was given
that day. (Tr., 176–179, 194, 199.).23
The next day, Cadaoas was given the fourth evaluation form
to fill out. Cadaoas testified that later, around 4 p.m., both
Rivera and Quibilan came to see her while she was still clean-
ing, before she finished her shift and returned the form. Rivera
told her to fill out the form so it could be done. Cadaoas re-
sponded that Fabro had helped her. Rivera, however, replied
that Fabro was obligated to help her, and told her to check all
the unsatisfactory boxes. Cadaoas therefore did so and handed
the completed form to them. (Tr. 180–183.)
Again, Cadaoas’s testimony is uncontradicted. Rivera was
not called to testify. As for Quibilan, while she denied that she
herself ever asked any employee to check only the unsatisfacto-
ry boxes (Tr. 474), she did not deny that Rivera did so (counsel
never asked her). Nor is there any other apparent reason to
discredit or disregard Cadaoas’s testimony. Although Respond-
ent’s posthearing brief (p. 56 & fn. 39) argues that the General
Counsel failed to present any evidence that Rivera and Quibilan
are statutory supervisors, there was no need for the General
Counsel to do so. Respondent’s answer to the October 14,
2016 complaint admitted that they were both its supervisors
within the meaning of section 2(11) of the Act and its agents
within the meaning of section 2(13) of the Act at all relevant
times. See GC Exh. 1(n), par. 5(e), (f), and GC Exh. 1(q), par.
1.
Accordingly, the General Counsel has clearly satisfied the
initial burden under Wright Line of showing union animus.
Moreover, the General Counsel has also shown, by a prepon-
derance of the credible evidence, that the PMP was implement-
ed as a pretext to target Fabro because of his prominent role in
the union campaign. Thus, as discussed above, Respondent
cannot establish that it would have taken the same action in the
absence of union activity, and the PMP violated Section 8(a)(3)

22 Cadaoas testified that she rated Fabro unsatisfactory the first day
because inspectresses Afable and Patricia Cuinday told or asked her to
(Tr. 173–174, 189).
23 Cadaoas’s testimony about exactly what Rivera said in reply var-
ied somewhat. See Tr. 179 (Rivera said, “It is better that you do not put
any comment, because you wrote satisfactory”); 180 (Rivera said, “You
better not put anything if [you are] going to write down satisfactory”);
194 (Rivera said, “It [is] not necessary to fill out the comment section if
you checked satisfactory”); 194 (Rivera said, “It [is] better not to say
anything if you [are] going to check satisfactory”). However, like
Aradanas, Cadaoas testified through an Ilocano interpreter, and it is
likely that the foregoing variations were due at least in part to variances
in how the questions and/or answers were translated. The variations are
certainly not sufficient under the circumstances to conclude that Rivera
said nothing. As for what exactly Rivera did say, it is most likely that
she said what Cadaoas’s actions indicate she said (to not fill out the
evaluation form at all).
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH HOTEL

11
and (1) of the Act as alleged.
CONCLUSIONS OF LAW
1. By directing off-duty employees on March 4, 2016 not to
distribute union leaflets in front of the two pillars in the open
outer area of the lower lobby facing the entrance driveway,
Respondent committed an unfair labor practice affecting com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
2. By placing Faustino Fabro on a performance management
plan on June 24, 2016, because of his open and active support
for the union and to discourage employees from supporting the
union, the Respondent committed an unfair labor practice af-
fecting commerce within the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Act.
3. The Respondent did not otherwise violate the Act as al-
leged in the complaint.
REMEDY
The appropriate remedy for the foregoing violations is an or-
der requiring the Respondent to cease and desist and to take
certain affirmative action. As requested by the General Coun-
sel (Br. 57), the latter properly includes a requirement that Re-
spondent rescind the unlawfully implemented PMP, remove it
from Fabro’s personnel file, and notify Fabro that it has done so
and will not rely on the PMP in any way. See, e.g., Saginaw
Control & Engineering, 339 NLRB 541, 547 (2003). It also
includes a requirement that Respondent post an official notice
to employees advising them of their rights and that Respondent
will not violate those rights in any like or related manner. As in
the prior proceeding, given that many of the hotel employees
speak the Philippine dialects Ilocano or Tagalog, rather than
English, as their primary language, the notice must be posted in
all three languages.
ORDER24
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
1. Cease and desist from
(a) Prohibiting off-duty employees from distributing union
leaflets in front of the two pillars in the open outer area of the
lower lobby facing the entrance driveway or in other nonwork
areas.
(b) Discriminatorily placing employees on a performance
management plan or otherwise imposing more onerous working
conditions on them because of their union or other protected
concerted activities or to discourage such activities.
(c) In any like or related manner restraining or coercing em-
ployees 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.

24 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.
(a) Within 14 days from the date of the Board’s order, re-
scind the performance management plan (PMP) that it imple-
mented regarding relief inspector Faustino Fabro on June 24,
2016.
(b) Within 14 days from the date of the Board’s order, re-
move from its files any reference to the PMP it implemented
regarding Fabro, and within 3 days thereafter notify Fabro in
writing that this has been done and that the PMP will not be
used against him in any way.
(c) Within 14 days after service by the Region, post at its fa-
cilities in Honolulu, Hawaii, copies of the attached notice
marked “Appendix” in English, Ilocano, and Tagalog.25 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 main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out of
business or closed the facilities involved in this proceeding,
Respondent shall duplicate and mail, at its own expense, a copy
of the notices to all current and former employees employed by
Respondent at any time since March 4, 2016.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., April 12, 2017
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

25 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 BOARD 12
WE WILL NOT prohibit our off-duty employees from distrib-
uting union leaflets in front of the two pillars in the open outer
area of the lower lobby facing the entrance driveway or in other
nonwork areas.
WE WILL NOT discriminatorily place our employees on a per-
formance management plan or otherwise impose more onerous
working conditions on them because of their union or other
protected concerted activities or to discourage such activities.
WE WILL NOT in any like or related manner restrain or coerce
our employees in the exercise of the rights guaranteed them by
Federal labor law.
WE WILL, within 14 days from the date of the Board’s order,
rescind the performance management plan (PMP) that we im-
plemented regarding relief inspector Faustino Fabro on June 24,
2016.
WE WILL, within 14 days from the date of the Board’s order,
remove from our files any reference to the PMP we implement-
ed regarding Fabro, and within 3 days thereafter notify Fabro in
writing that this has been done and that the PMP will not be
used against him in any way.
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI
BEACH HOTEL AND HOTEL RENEW

The Administrative Law Judge's decision can be found at
www.nlrb.gov/case/20-CA-167132 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.