Aqua-Aston Hospitality, LLC f/k/a Aston Hotels & Resorts, LLC dba Aston Waikiki Beach Hotel and Hote

National Labor Relations Board - Board Decisions

Apr 11, 2017

365 NLRB No. 44 (N.L.R.B. 2017)

365 NLRB No. 44
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 f/k/a Aston Hotels and
Resorts, LLC d/b/a Aston Waikiki Beach Hotel
and Hotel Renew and UNITE HERE! Local 5.
Cases 20–CA–145717, 20–CA–145720, 20–CA–
145725, 20–CA–146582, 20–CA–146583, and 20–
CA–148013
April 11, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The General Counsel seeks default judgment in this
case pursuant to the terms of an informal settlement
agreement. UNITE HERE! Local 5 (the Union) filed
charges on February 3, February 18, and March 11,
2015, respectively, against Aqua-Aston Hospitality, LLC
f/k/a Aston Hotels and Resorts, LLC d/b/a Aston Waikiki
Beach Hotel and Hotel Renew (the Respondent), alleging
that the Respondent violated Section 8(a)(1) of the Act.
On April 29, 2015, prior to the issuance of a consoli-
dated complaint, the Regional Director for Region 20
approved an informal settlement agreement. Pursuant to
the terms of the settlement agreement, the Respondent
agreed, among other things, to: (1) refrain from impliedly
threatening to discipline or terminate off-duty employees
for engaging in activities protected by Section 7 of the
Act in nonwork areas of its premises; (2) refrain from
threatening employees with adverse consequences if they
engage in union or other protected concerted activities;
and (3) refrain from interfering with, restraining, or co-
ercing its employees in the exercise of their Section 7
rights in any like or related manner.
The “Performance” provision of the settlement agree-
ment also contained the following noncompliance provi-
sion:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
issue a Complaint that includes the allegations covered
by the Notice to Employees, as identified above in the
Scope of Agreement section, as well as filing and ser-
vice of the charge(s), commerce facts necessary to es-
tablish Board jurisdiction, labor organization status,
appropriate bargaining unit (if applicable), and any oth-
er allegations the General Counsel would ordinarily
plead to establish the unfair labor practices. Thereafter,
the General Counsel may file a Motion for Default
Judgment with the Board on the allegations of the
Complaint. The Charged Party understands and agrees
that all of the allegations of the Complaint will be
deemed admitted and that it will have waived its right
to file an Answer to such Complaint. The only issue
that the Charged Party may raise before the Board will
be whether it defaulted on the terms of this Settlement
Agreement. The General Counsel may seek, and the
Board may impose, a full remedy for each unfair labor
practice identified in the Notice to Employees. The
Board may then, without the necessity of trial or any
other proceeding, find all allegations of the Complaint
to be true and make findings of fact and conclusions of
law consistent with those allegations adverse to the
Charged Party on all issues raised by the pleadings.
The Board may then issue an Order providing a full
remedy for the violations found as is appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board Order ex parte, after service or at-
tempted service upon Charged Party at the last address
provided to the General Counsel.
Enforcement of this provision of the Agreement shall
be limited to only the Aston Waikiki Beach Hotel,
2570 Kalakaua Avenue, Honolulu, Hawaii 96815, and
Hotel Renew, 129 Paoakalani Avenue, Honolulu, Ha-
waii 96815.
Notwithstanding the provisions of this paragraph, no
default shall be asserted based on this paragraph after
six (6) months from the date of the Regional Director’s
approval of the Settlement Agreement assuming that
the Charging Party has entered into the Agreement . . . .
Thereafter, the Union filed separate charges and
amended charges against the Respondent in Case 20–
CA–154749 on June 23 and October 20, 2015, respec-
tively, and in Case 20–CA–157769 on August 11 and
September 24, 2015, respectively. By letter dated Octo-
ber 15, 2015, the Regional Director notified the Re-
spondent that by engaging in the conduct alleged in those
charges, the Respondent was in noncompliance with the
settlement agreement. The letter advised the Respondent
of the General Counsel’s intention to seek default judg-
ment in the settled cases after successfully proving the
8(a)(1) violations alleged in those post-settlement charg-
es. The Respondent did not reply.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, on October 28, 2015, the Regional Direc-
tor issued a consolidated complaint.1 On July 15, 2016,
the General Counsel filed a Motion for Default Judgment
and supporting memorandum with the Board.2 On July
20, 2016, the Board issued an order transferring the mo-
tion to the Board and Notice to Show Cause why the
motion should not be granted. The Respondent filed an
opposition to the General Counsel’s motion, and the
General Counsel filed a response.
Ruling on Motion for Default Judgment
The Respondent asserts that the General Counsel’s
motion for default judgment is time-barred, based on the
provision in the settlement agreement stating that “no
default shall be asserted based on this paragraph after six
(6) months from the Regional Director’s approval of the
Settlement Agreement.” As stated above, the Regional
Director approved the settlement agreement on April 29,
2015. According to the Respondent, although the Gen-
eral Counsel informed the Respondent of his intent to
seek default judgment on October 15, 2015, the term
“assert” required the General Counsel to commence de-
fault proceedings, not just provide notice of an intent to
institute default proceedings, on or before October 29,
2015.
In his reply, the General Counsel argues that the Re-
spondent reads the “Performance” provision of the set-
tlement agreement too restrictively and that the Regional
Director asserted without equivocation, on October 15,
2015, that the Respondent had defaulted on the settle-
ment agreement’s terms by its actions in post-settlement
Cases 20–CA–154749 and 20–CA–157769. According
to the General Counsel, the Regional Director further
confirmed this assertion by issuing the consolidated
complaint on October 28, 2015, within the 6-month peri-
od.
We agree with the General Counsel. The “Perfor-
mance” provision of the settlement agreement states that
in case of noncompliance and after 14 days’ notice, the
Regional Director will issue a complaint and may there-
after file a motion for default judgment. The term “as-

1 On May 31, 2016, Administrative Law Judge Mara-Louise
Anzalone issued a decision finding the Respondent engaged in conduct
that violated at least three cease-and-desist provisions of the settlement
Notice with which the Respondent was required to comply. On April
10, 2017, the Board issued a decision adopting the judge’s findings.
Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and
Hotel Renew, 365 NLRB No. 53 (2017) (Aqua-Aston Hospitality). The
Board also implicitly denied the General Counsel’s request to consoli-
date the instant motion with the post-settlement case.
2 The General Counsel did not move for default judgment in two
cases that were initially a part of the settlement, Cases 20–CA–145772
and 20–CA–149639, and which alleged that the Respondent promul-
gated and/or maintained unlawful rules in violation of Sec. 8(a)(1).
sert,” contained in the 6-month limitation clause of the
settlement agreement, is clearly linked to the initiation of
this process—i.e., the provision of notice. Nothing in the
settlement agreement expressly requires the General
Counsel to file the motion for default judgment within
the 6-month period.3 Therefore, because the General
Counsel notified the Respondent that it was in default of
the settlement agreement within the 6-month period, the
motion for default judgment was timely filed. By the
Respondent’s actions in the post-settlement case, Aqua-
Aston Hospitality, supra, the Respondent breached the
terms of the settlement agreement. Accordingly, we
grant the General Counsel’s Motion for Default Judg-
ment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a limited liabil-
ity company with an office and place of business in Hon-
olulu, Hawaii, has been operating hotels providing food
and lodging, including the Aston Waikiki Beach Hotel
and Hotel Renew.
In conducting its operations during the 12-month peri-
od ending May 31, 2016, the Respondent derived gross
revenues in excess of $500,000, and purchased and re-
ceived at its Honolulu, Hawaii facilities products, goods,
and materials valued in excess of $5000 directly from
points outside the State of Hawaii.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union, UNITE HERE! Local
5, is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the

3 There is no record evidence of the parties’ intent when executing
this 6-month limitation. However, we note that, in bringing this default
judgment motion, the Regional Director followed the procedures set
forth in the General Counsel’s OM-Memorandum 14-48 (April 10,
2014). We find it unlikely that the parties would have agreed to a limi-
tation that would have inhibited this process, which the Respondent’s
proffered interpretation would undoubtedly do.
4 The Respondent’s contentions that the General Counsel waived any
right to seek default judgment by issuing the 2015 consolidated com-
plaint and that the General Counsel’s motion for default judgment was
premature because it was filed before the Board issued a final decision
in the post-settlement case (20–CA–154749, et al.) are without merit.
See Conagra Foods, Inc., 361 NLRB No. 113 (2014), enf. denied in
part and remanded 813 F.3d 1079 (8th Cir. 2016).
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH HOTEL AND HOTEL RENEW 3
Respondent within the meaning of Section 2(13) of the
Act:
Marissa Cacacho - Executive Housekeeper
Mark DeMello - General Manager
Liane Kelly - Senior Vice President and
Associate General Counsel
Inocencio Llamas - Housekeeping Supervisor
Lillian Mesiona - Front Office Supervisor
Connie Quibilan - Housekeeping Supervisor
Elvira Rivera - Housekeeping Supervisor
1. At all material times, Andrew Smith has been a se-
curity site supervisor, security guard, and an agent of the
Respondent within the meaning of Section 2(13) of the
Act.
2. (a) About February 3, 2015, the Respondent, by An-
drew Smith, engaged in surveillance of its employees
engaged in union and protected concerted activities on
the sidewalk outside the Aston Waikiki Beach Hotel.
(b) About February 3, 2015, the Respondent, by Lillian
Mesiona, engaged in surveillance of its employees en-
gaged in union and protected concerted activities on the
sidewalk outside the Aston Waikiki Beach Hotel.
(c) About February 3, 2015, the Respondent, by Elvira
Rivera, engaged in surveillance of its employees engaged
in union and protected concerted activities on the side-
walk outside the Aston Waikiki Beach Hotel.
3. (a) About February 3, 2015, the Respondent, by In-
ocencio Llamas, interrogated its employees in the Hotel
Renew’s lunchroom about their union membership, ac-
tivities, and sympathies.
(b) About February 3, 2015, the Respondent, by Ino-
cencio Llamas, interrogated its employees in Inocencio
Llamas’ office at the Hotel Renew about their union
membership, activities, and sympathies.
(c) About February 3, 2015, the Respondent, by Maris-
sa Cacacho and Elvira Rivera, interrogated its employees
in Marissa Cacacho’s office at the Aston Waikiki Beach
Hotel about their union membership, activities, and sym-
pathies and the union membership, activities, and sympa-
thies of other employees.
(d) About February 22, 2015, the Respondent, by Elv-
ira Rivera, interrogated its employees in a guest room at
the Hotel Renew about their union membership, activi-
ties, and sympathies.
4. About February 14, 2015, the Respondent, by Ino-
cencio Llamas and Connie Quibilan, in the housekeeping
department at the Aston Waikiki Beach Hotel, directed
its employees to remove and/or not to wear union insig-
nia.
5. (a) About February 19, 2015, the Respondent, by
Elvira Rivera, in the housekeeping department at the
Aston Waikiki Beach Hotel, solicited employee signa-
tures on a petition withdrawing support from the Union.
(b) About February 21, 2015, the Respondent, by Elv-
ira Rivera, in a guest room in the Aston Waikiki Beach
Hotel, solicited employee signatures on a petition with-
drawing support from the Union.
(c) About February 22, 2015, the Respondent, by Elv-
ira Rivera, in the housekeeping department at the Aston
Waikiki Beach Hotel, solicited employee signatures on a
petition withdrawing support from the Union.
6. (a) About February 21, 2015, the Respondent, by
Elvira Rivera, in a guest room in the Aston Waikiki
Beach Hotel, threatened employees with adverse em-
ployment consequences and/or unspecified reprisals if
employees did not sign a petition to withdraw support
from the Union.
(b) About February 22, 2015, the Respondent, by Elv-
ira Rivera, in the housekeeping department at the Aston
Waikiki Beach Hotel, threatened employees with adverse
employment consequences and/or unspecified reprisals if
employees did not sign a petition to withdraw support
from the Union.
7. About March 7, 2015, the Respondent, by Andrew
Smith, in the lower lobby/porte-cochere area of the As-
ton Waikiki Beach Hotel, impliedly threatened its off-
duty employees, including Jonathan Ching, with disci-
pline, discharge, and/or unspecified reprisals by threaten-
ing to issue trespass notices to them for engaging in pro-
tected concerted handbilling in a nonwork area.
CONCLUSIONS OF LAW
1. The Respondent violated the terms of the settlement
agreement entered into in disposition of Cases 20–CA–
145717, 20–CA–145720, 20–CA–145725, 20–CA–
146582, 20–CA–146583, and 20–CA–148013 by, on
about May 19, 2015, impliedly threatening 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 by, on about August 11,
2015, impliedly threatening off-duty employees with
discipline for engaging in Union and/or protected con-
certed activities in nonwork areas. Accordingly, the set-
tlement agreement is vacated and set aside.
2. By the conduct described above in paragraphs 2, 3,
4, 5, 6, and 7, the Respondent has been interfering with,
restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
3. The unfair labor practices of the Respondent de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent Aqua-Aston Hospitality, LLC f/k/a Aston
Hotels and Resorts, LLC d/b/a Aston Waikiki Beach
Hotel and Hotel Renew, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union member-
ship, activities, and sympathies or the union membership,
activities, and sympathies of fellow employees.
(b) Placing employees under surveillance while they
engage in union or other protected concerted activities.
(c) Directing employees to remove union buttons from
their uniforms or other work clothing.
(d) Encouraging or soliciting employees to sign a peti-
tion withdrawing support from UNITE HERE! Local 5
or any other labor organization.
(e) Threatening employees with adverse employment
consequences or unspecified reprisals for engaging in
union or other protected concerted activities.
(f) Threatening or impliedly threatening off-duty em-
ployees with adverse employment consequences or un-
specified reprisals for handbilling in nonwork areas.
(g) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) 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 Taga-
log.5 Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily 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,

5 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.”
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 3,
2015.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation 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 11, 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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate you about your union mem-
bership, activities, and sympathies or the union member-
AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON WAIKIKI BEACH HOTEL AND HOTEL RENEW 5
ship, activities, and sympathies of your fellow employ-
ees.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT direct you to remove union buttons from
your uniforms or other work clothing.
WE WILL NOT encourage or solicit you to sign any
documents withdrawing support from UNITE HERE!
Local 5 or any other labor organization.
WE WILL NOT threaten you with adverse employment
consequences or unspecified reprisals if you engage in
union or other protected concerted activities.
WE WILL NOT impliedly threaten to discipline or termi-
nate off-duty employees for engaging in activities pro-
tected by Section 7 of the Act in nonwork areas of our
premises.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
AQUA-ASTON HOSPITALITY, LLC F/K/A ASTON
HOTELS AND RESORTS, 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–145717 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.