ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL

National Labor Relations Board - Board Decisions

Nov 29, 2019

368 N.L.R.B. 119 (N.L.R.B. 2019)

368 NLRB No. 119
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.
Arbah Hotel Corp. d/b/a Meadowlands View Hotel and
New York Hotel and Motel Trades Council,
AFL–CIO. Cases 22–CA–197658, 22–CA–
203130, 22–CA–205317, 22–CA–205422, 22–CA–
209158, and 22–CA–212705
November 29, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On December 20, 2018, Administrative Law Judge Lau-
ren Esposito issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.

1 The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
2 We have amended the remedy and modified the judge’s recom-
mended Order consistent with our legal conclusions herein. Specifically,
we will require the Respondent to make all delinquent contributions to
the UNITE HERE Health Fund on behalf of bargaining unit employees
that have not been made since October 2017 when the Respondent ceased
making its required payments.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent, through its letter dated September 8, 2017, violated both
Sec. 8(a)(1) by threatening to unilaterally discontinue the bargaining unit
employees’ negotiated health insurance benefit coverage if the employ-
ees did not sign up for the Respondent’s new health insurance coverage,
and Sec. 8(a)(5) and (1) by bypassing the Union and dealing directly with
bargaining unit employees. We also adopt, in the absence of exceptions,
the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by
failing and refusing to meet and bargain with the Union since October
15, 2017. Further, because the Respondent did not except to the judge’s
recommended affirmative bargaining order, we find it unnecessary to
provide a justification for that remedy. See Scepter v. NLRB, 280 F.3d
1053, 1057 (D.C. Cir. 2002); Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972,
978 (D.C. Cir. 1998); SKC Electric, Inc., 350 NLRB 857, 862 fn. 15
(2007); Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001).
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by discharging Marie Dufort, we agree with the judge that
the General Counsel established that Dufort’s union activity was a moti-
vating factor in her discharge and that the Respondent’s asserted justifi-
cations for Dufort’s discharge are pretextual. We therefore find it un-
necessary to proceed to the second step of the analysis set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), in which the Board determines whether a
respondent has established that it would have discharged the employee
even in the absence of her protected activity. That step is only applicable
in mixed-motive cases. Parkview Lounge, LLC d/b/a Ascent Lounge,
366 NLRB No. 71, slip op. at 3 (2018), enfd. XXX Fed. Appx. XXX (2d
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,1 and conclusions and to
adopt the recommended Order as modified and set forth in
full below.2
ORDER
The National Labor Relations Board orders that the Re-
spondent, Arbah Hotel Corp. d/b/a Meadowlands View
Hotel, North Bergen, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening bargaining unit employees with unilat-
eral discontinuation of their negotiated health insurance
coverage if they do not sign up for the Respondent’s new
health insurance coverage.
(b) Discharging or otherwise discriminating against
employees for supporting New York Hotel and Motel
Cir. Oct. 25, 2019). We also find it unnecessary to rely on the judge’s
inapposite citation to NLRB v. City Disposal Systems, Inc., 465 U.S. 822,
836 (1984), which concerned whether an employee had engaged in con-
certed activity, not the union activity at issue in this case.
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by denying Union Bargaining Representative George Pa-
dilla access to the facility, we agree with her finding that the parties’
January 27, 2017 settlement agreement did not authorize his exclusion.
That agreement stated that “[p]rior to Mr. Padilla returning to the Hotel,
the parties shall meet, provided such meeting must take place before Feb-
ruary 15, 2017.” We agree with the judge that this provision established
a deadline for the meeting, which did not occur, rather than a condition
precedent to Padilla returning to the hotel. In addition to the reasons
stated by the judge, we reject as entirely implausible the Respondent’s
claim that the Union agreed to a provision that permitted the Respondent
to ban Padilla permanently from its facility by simply refusing to meet
with the Union.
Finally, we agree with the judge that the Respondent violated Sec.
8(a)(5) and (1) when it unilaterally failed and refused to make health in-
surance coverage payments to the UNITE HERE Health Fund by the end
of October 2017 for the bargaining unit employees’ September 2017
health insurance coverage, resulting in the termination of their health in-
surance coverage on November 1. The Fund had previously notified the
Respondent of its delinquency in payments on October 20 and that a fail-
ure to remit the required payments would result in the termination of bar-
gaining unit employees’ health insurance coverage.
The Respondent argues that its failure to remit the payments to the
UNITE HERE Health Fund was privileged by a February 2012 side let-
ter, which provided that “[s]hould the Hotel find a more affordable health
care alternative, the parties agree that the Hotel may change providers,
provided such alternative maintains the same if not better level of current
benefits, eligibility threshold, and coverage without employee contribu-
tions.” Even assuming that this side letter was still in force in 2017, it
does not support the Respondent’s position. By its terms, this side letter
permitted the Respondent to change providers only—not, as happened
here, to unilaterally cease payments to the UNITE HERE Health Fund
so as to cause the outright cancellation of the bargaining unit employees’
health insurance. The Respondent fails to cite to any contractual provi-
sion or other agreement with the Union that granted it the right to unilat-
erally cancel the bargaining unit employees’ health insurance coverage.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Trades Council, AFL–CIO, or any other labor organiza-
tion.
(c) Failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(d) Unilaterally changing the practice of permitting of-
ficial representatives of the Union, including George Pa-
dilla, to access the facility pursuant to the terms of the ex-
pired collective-bargaining agreement.
(e) Bypassing the Union and dealing directly with bar-
gaining unit employees concerning changes in wages,
hours, or other terms and conditions of employment.
(f) Failing and refusing, since October 2017, to make
contractually required contributions to the UNITE HERE
Health Fund on behalf of bargaining unit employees.
(g) In any like or related matter 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 from the date of this Order, offer
Marie Dufort full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make Marie Dufort whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section
of the judge’s decision.
(c) Compensate Marie Dufort for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 22,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Marie Dufort, and within 3 days thereafter, notify the em-
ployee in writing that this has been done and that the dis-
charge will not be used against her in any way.
(e) Rescind the change in the terms and conditions of
employment of its bargaining unit employees imple-
mented on August 24, 2017 by granting the Union’s bar-
gaining representative access to the facility.
(f) Make all delinquent contributions to the UNITE
HERE Health Fund on behalf of bargaining unit employ-
ees that have not been made since October 2017, including
any additional amounts due the fund as set forth in the
remedy section of the judge’s decision.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
(g) Make bargaining unit employees whole for any ex-
penses ensuing from its failure to make the required health
fund contributions, with interest, as set forth in the remedy
section of the judge’s decision.
(h) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All room attendants, housemen, porters, linen room,
drivers, maintenance, cooks, waiter, waitresses, busboys
and dishwashers excluding all supervisory personnel.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this order.
(j) Within 14 days after service by the Region, post at
its North Bergen, New Jersey facility copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, 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. Rea-
sonable 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 facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
April 7, 2017.
(k) Within 21 days after service by the Region, file with
the Regional Director for Region 22 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 3
Dated, Washington, D.C. November 29, 2019
______________________________________
John F. Ring, Chairman
_____________________________________
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 vi-
olated 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 ac-
tivities.
WE WILL NOT threaten you with unilateral discontinua-
tion of your negotiated health insurance coverage if you
do not sign up for our new health insurance coverage.
WE WILL NOT discharge or otherwise discriminate
against you for supporting New York Hotel and Motel
Trades Council, AFL–CIO, or any other labor organiza-
tion.
WE WILL NOT fail and refuse to recognize and bargain
with the Union as the exclusive collective-bargaining rep-
resentative of the employees in the bargaining unit.
WE WILL NOT unilaterally change the practice of permit-
ting official representatives of the Union, including
George Padilla, to access the facility pursuant to the terms
of the expired collective-bargaining agreement.
WE WILL NOT bypass the Union and deal directly with
you concerning changes in your wages, hours, or other
terms and conditions of employment.
WE WILL NOT fail and refuse to make contractually re-
quired contributions to the UNITE HERE Health Fund on
your behalf.
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, offer Marie Dufort full reinstatement to her former
job or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make Marie Dufort whole for any loss of earn-
ings and other benefits resulting from her discharge, less
any net interim earnings, plus interest, and WE WILL also
make her whole for reasonable search-for-work and in-
terim employment expenses, plus interest.
WE WILL compensate Marie Dufort for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 22, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Marie Dufort, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done and
that the discharge will not be used against her in any way.
WE WILL rescind the change in the terms and conditions
of employment of our bargaining unit employees imple-
mented on August 24, 2017, by granting the Union’s bar-
gaining representative access to our facility.
WE WILL make all delinquent contributions to the
UNITE HERE Health Fund on behalf of bargaining unit
employees that have not been made since October 2017.
WE WILL make bargaining unit employees whole for
any expenses resulting from our failure to make the re-
quired health fund contributions, with interest.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All room attendants, housemen, porters, linen room,
drivers, maintenance, cooks, waiter, waitresses, busboys
and dishwashers excluding all supervisory personnel.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS
VIEW HOTEL
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-197658 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.
Chevella Brown-Maynor, Esq., for the General Counsel.
Robert C. Lorenc, Esq. (The Lorenc Law Firm, P.C.), for the
Respondent.
Amy Bokerman, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
Lauren Esposito, Administrative Law Judge. This case was
tried in Newark, New Jersey, on May 30 and 31, 2018,1 and on
June 20, 21, and 22, 2018. The New York Hotel and Motel
Trades Council, AFL–CIO (Charging Party or Union) filed
charges and amended charges on April 26, 2017, June 14, 2017,
July 26, 2017, August 21, 2017, August 29, 2017, August 31,
2017, November 2, 2017, and January 9, 2018. The Consoli-
dated Complaint issued on April 24, 2018, and was amended by
Counsel for the General Counsel (General Counsel) on the rec-
ord on May 30, 2018. (Tr. 10–11, 13–14; GC Exh. 2.)
The Consolidated Complaint alleges that Arbah Hotel Corp.
d/b/a Meadowlands View Hotel (Arbah or Respondent), violated
Section 8(a)(1) of the Act by threatening to unilaterally discon-
tinue negotiated health insurance coverage if the employees did
not sign up for alternate health insurance coverage. The Com-
plaint further alleges that Arbah violated Sections 8(a)(3) and (1)
by discharging Marie Dufort in retaliation for her activities on
behalf of the Union. Finally, the Complaint alleges that Arbah
violated Sections 8(a)(5) and (1) of the Act by refusing to meet
and bargain with the Union, unilaterally refusing to remit health
insurance coverage payments to the UNITE HERE Health Fund,
bypassing the Union and dealing directly with employees, and
unilaterally denying the Union’s bargaining representative ac-
cess to the facility.2

1 On May 31, 2018, the hearing was adjourned at Respondent’s re-
quest so that Arbah could retain an attorney to represent it. Tr. 244, 245–
247, 250–251, 253–255 (it should be noted that the statement beginning
on p. 247, line 11 and ending on p. 248, line 20 was made by General
Counsel, and was attributed to me in error). The hearing subsequently
resumed on June 20, 2018, with Robert Lorenc, Esq. representing Re-
spondent.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
General Counsel, Arbah, and the Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
Arbah, a corporation with an office and place of business in
North Bergen, New Jersey, operates a hotel providing food and
lodging. Arbah admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Arbah also admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Parties
Arbah operates the Meadowlands View Hotel in North Ber-
gen, New Jersey, providing lodging, food, and related services.
Arbah admits and I find that Steve Silverberg and Mark Wysocki
are its President and Vice President, respectively, and that Sil-
verberg and Wysocki are supervisors within the meaning of Sec-
tion 2(11) of the Act and agents of Respondent within the mean-
ing of Section 2(13). Arbah also admits and I find that Desiree
Ruiz, its assistant operations manager, is a supervisor within the
meaning of Section 2(11) and an agent within the meaning of
Section 2(13). (Tr. 565–566.) Arbah further admits and I find
that four individuals in its housekeeping department—assistant
manager Rosa DiCenso, managers Raisa Perez and Paola, and
supervisor Jessica—were at all material times statutory supervi-
sors and agents of Respondent. (Tr. 372–373.) During the col-
lective bargaining negotiations at issue herein, Arbah was repre-
sented by its attorney Robert Lorenc. (Tr. 77.) Wysocki and
Ruiz testified at the hearing, as did Arbah’s assistant general
manager Vanessa Rubio. (Tr. 529–530.)
The Union is an umbrella organization for several unions rep-
resenting employees in different job classifications, and negoti-
ates, executes and services collective-bargaining agreements and
health insurance providers. (Tr. 516–519.) Richard Maroko and
Amy Bokerman are its General Counsel and Associate General
Counsel, respectively. (Tr. 77, 405–406.) Sarah Stern was em-
ployed by the Union as a Hotel Employee Action Team supervi-
sor from February of 2014 until April 11, 2018, and began work-
ing with Arbah’s bargaining unit employees as an organizer in
May 2015. (Tr. 42, 87, 98.) As an organizer, Stern communi-
cated information between the Union membership, its legal team
and the business agent servicing the bargaining unit at Arbah’s
facility. (Tr. 42–43.) Stern was also a member of the Union’s
bargaining committee and attended negotiations. (Tr. 43.)
George Padilla is a Union business agent responsible for admin-
istration and enforcement of the Union’s contract with Arbah and
was also part of its negotiating team. (Tr. 70–71.) Stern and
2 The consolidated complaint also alleged that Arbah violated Sec-
tions 8(a)(5) and (1) by refusing to provide the Union with information
necessary for the Union to perform its duties as exclusive bargaining rep-
resentative. General Counsel withdrew this allegation in her Post Hear-
ing Brief, because Arbah produced the requested information during the
hearing. GC Posthearing Br. at 15.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 5
Bokerman testified at the hearing, as did former employee Marie
Dufort, current employee and shop steward or delegate Carmen
Suarez, and current employees Yvette Charles and Meleda Coro-
nado.
Since January 19, 2011, Arbah has recognized the Union as
the exclusive collective bargaining representative of the follow-
ing unit of employees:
All room attendants, housemen, porters, linen room, drivers,
maintenance, cooks, waiter, waitresses, busboys, and dish-
washers excluding all supervisory personnel.
(Tr. 43–45; GC Exh. 3, p. 2, 15.) During 2017, there were ap-
proximately 30 bargaining unit employees working at Arbah’s
facility. Tr. 45–46, 160. Arbah and the Union were parties to a
collective bargaining agreement effective by its terms from July
1, 2011 through June 30, 2015. (Tr. 160–161, 406, GC Exh. 3.)
There is no dispute that since June 30, 2015 the parties have con-
tinued to apply the terms of the collective-bargaining agreement,
even though it has expired. (Tr. 97, 160–161, 491.)
B. Events Pertaining to the Discharge of Marie Dufort
Marie Dufort began working at Arbah as a housekeeper on
June 15, 1996, and held that position until she was discharged on
April 7, 2018. (Tr. 51, 161, 281–282.) The housekeepers at Ar-
bah are responsible for cleaning guest rooms, including dusting
and vacuuming, cleaning the bathrooms, and changing linens.
(Tr. 279–280, 354, 371–372.) Dufort was a member of the Un-
ion throughout her employment at Arbah. (Tr. 280–281.)
Dufort testified that on February 8, 2017,3 housekeeping su-
pervisor Paola called her to work a shift on February 9 to replace
houseman Jesus, who was unable to work that day.4 (Tr. 285.)
Paola stated that Dufort would spend the shift delivering linen
from the laundry to the rooms. (Tr. 326–327, 328.) On February
9, Dufort arrived at the hotel 8:10 a.m. but did not punch in, be-
cause the shift began at 8:30. (Tr. 191, 286–287, 326.) How-
ever, after Dufort arrived, Paola asked what she was doing at the
hotel. (Tr. 288–289.) Dufort stated that Paola had called her in
to work. (Tr. 289.) However, Paola refused to assign Dufort any
work for the shift and told Dufort to go home because there was
no work for her that day. (Tr. 171, 290, 328–329.)
While Dufort was leaving, she saw Suarez, who was arriving
for her shift. (Tr. 171–172, 288.) Dufort explained the situation
to Suarez, and Suarez called Jesus. Jesus confirmed that he had
initially told Paola that he would not be able to work that day but
had called her later and said that he would in fact come in on
February 9. (Tr. 171, 188.) Suarez told Dufort that they should
speak to management, because Dufort should not have been
called in to work only to be sent home. (Tr. 171.) Suarez also
suggested that Dufort call Stern at the Union. (Tr. 171–172,
289.)
Dufort and Suarez then called Stern, and explained the situa-
tion to her. (Tr. 46, 106–108, 172, 290–291.) During this phone
call, Dufort also told Stern about an incident on December 23,
2016 when she had discovered a significant amount of marijuana
in a room she was assigned to clean. (Tr. 296, 198.) Dufort told

3 All subsequent dates are in 2017 unless otherwise indicated.
4 Employees are called in seniority order as additional shifts that be-
come available. Tr. 108–109, 322–325.
Stern that when she reported the marijuana to supervisor Raisa,
Raisa yelled at her and treated her in a disrespectful manner. (Tr.
47, 95–96.) Stern said that she would schedule a meeting with
Wysocki and his staff to address both issues. (Tr. 291–292.)
On February 13, Stern sent Ruiz an e-mail requesting infor-
mation regarding both the February 9 call-in incident and the De-
cember 23, 2016 incident involving Dufort’s discovery of mari-
juana in one of her assigned rooms. (Tr. 47–48; GC Exh. 4.)
Ruiz stated in response that she would arrange a meeting with
Dufort and Suarez to discuss the issues without a Union repre-
sentative present, and did not respond to the request for infor-
mation. (Tr. 49.)
Despite Stern’s e-mail, Dufort and Suarez proceeded to meet
with Wysocki, Paola, and Raisa, together with Rubio and Ruiz.
(Tr. 172, 289, 291.) During this meeting, Wysocki offered
Dufort four hours’ pay in order to resolve the issue. (Tr. 173,
289.) Dufort took the position that she should be paid for an
entire 8-hour shift, but Wysocki refused to do so on the grounds
that Dufort had not punched in. (Tr. 173, 289.) According to
Suarez, Wysocki would not permit Dufort to speak, and stated
that the collective bargaining agreement did not require that she
be paid anything at all. (Tr. 173.) Dufort refused to accept the
four hours’ pay because she believed based on past practice at
the hotel that she should be paid for an entire 8-hour shift if she
was called in to work. (Tr. 333–334.) Dufort testified that at or
around the time of this meeting, Wysocki told her that he did not
want the Union involved, because “when the Union comes,
things get ugly.” (Tr. 296.)
On February 23, Ruiz told Stern that a meeting had taken place
with Dufort, Suarez, and Arbah management. (Tr. 49.) Ruiz told
Stern that during the meeting they discussed the issues raised by
the Union in its February 13 e-mail and offered Dufort 4 hours’
pay to resolve the scheduling issue. (Tr. 49.) Ruiz asked Stern
whether the Union was interested in a follow-up meeting. (Tr.
49.) A few days later, Stern spoke to Dufort, who said that she
was very upset and felt misled by Arbah, because she believed
that a Union representative would be present at the meeting. (Tr.
49–50.) Dufort said that during the meeting, Wysocki asked her
why she was always going to the Union with issues, instead of
coming to him directly. (Tr. 50.)
On February 26 or 27, another meeting took place regarding
the February 9 call-in issue. Dufort was present at this meeting,
and her son attended in order to translate for her.5 (Tr. 173.)
Stern and union representative Nicholas were also present, as
were Wysocki, Paola, Raisa, Ruiz and other management staff.
(Tr. 173–174, 293.) Dufort wanted Wysocki to apologize for the
way he had treated her. (Tr. 174.) Wysocki offered to compen-
sate Dufort for her time in coming to the facility but took the
position that because Dufort did not punch in she could not be
paid for the entire shift. (Tr. 193.) Nicholas and Wysocki pro-
ceeded to argue, and no agreement was reached. (Tr. 174, 194.)
In mid-March, a new housekeeping supervisor named Jessica
began working at Arbah. (Tr. 51, 299, 303–304.) Dufort testi-
fied that at that time Jessica, Paola, and Raisa followed her as
5 Dufort testified at the hearing with a Haitian Creole interpreter.
Dufort testified that she can understand spoken English but does not
speak it herself. Tr. 308.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
she performed her work.6 Dufort testified that Jessica in partic-
ular used her phone to take pictures of and videotape Dufort. (Tr.
299–300, 304, 337.) Dufort stated that although housekeeping
supervisors always checked the rooms after the housekeepers
cleaned them, she had never previously seen or heard of three
supervisors checking the rooms of a single housekeeper. (Tr.
338, 339.)
On March 15, Dufort had a conversation with Jessica while
she was cleaning one of her assigned rooms. Dufort testified that
Jessica told her that there was a stain on the bedspread or com-
forter in the room, and asked Dufort to change it. (Tr. 304.)
Dufort testified that she called one of the employees responsible
for delivering linen and changed the comforter. (Tr. 304.) After
Dufort changed the comforter, Jessica asked her whether she had
changed it or flipped it over, and Dufort said that she had
changed the stained comforter. (Tr. 304.) The next day, March
16, Jessica approached Dufort, and again asked her whether she
had changed or flipped the stained comforter. (Tr. 305.) Dufort
stated again that she had changed the comforter. (Tr. 305.) Nev-
ertheless, Jessica told Dufort that she wanted her to change the
comforter again, and Dufort called the laundry employee to bring
a new comforter so that she could do so. (Tr. 305.) Dufort tes-
tified that during this conversation, Jessica told her that Wysocki
“asked me to do it. He asked me to follow you wherever [you]
go because [you] complained to the Union.” (Tr. 305.) Jessica
further told Dufort that Wysocki wanted to “get rid of” her be-
cause she “complained to the Union.” (Tr. 305, 308.) Dufort
then went to the room in question and changed the comforter.
(Tr. 305–306.)
On March 16, while Suarez and Ruiz were discussing unre-
lated employee write-ups, Ruiz mentioned the previous day’s in-
cident involving Dufort, Jessica, and the comforters. (Tr. 161,
196.) Ruiz told Suarez that Dufort had not changed the com-
forter after Jessica found the stain and directed her to do so. (Tr.
161, 196.) Suarez then spoke to Dufort, who took Suarez to the
room in question and showed her that the bedding did not have
any stains on it. (Tr. 161–162, 196–197, 202–203.) Suarez
called Raisa and Paola, who went to the room. (Tr. 162.) After
looking at the bedding, Raisa and Paola told Suarez that they
would investigate, because they were sure that there had been a
stain on the comforter. (Tr. 162.)
Wysocki then spoke to Suarez in a guest room where she was
working with Raisa. (Tr. 164.) Wysocki told Suarez that
Dufort’s failure to change the bedding was not acceptable be-
cause given the potential for complaints on the internet, and that
the hotel could not continue using stained bedding. (Tr. 165.)
Wysocki initially told Suarez that he intended to discharge
Dufort because she “had violated an article of honesty.” (Tr.
165.) Suarez told Wysocki that he should not discharge Dufort,

6 Jessica, Paola and Raisa did not testify at the hearing.
7 Article XI of the collective bargaining agreement states:
The Employer may summarily discharge any employee for dishonesty,
insobriety, insubordination and/or manipulation of funds with intent to
defraud the Employer and/or the customer and physical fighting on the
premises in or about the Employer’s property and for any other just
cause. The Shop Steward or delegate of the particular department shall
be present at the time of said removal and the reason of the removal
because Dufort was a good worker and colleague. (Tr. 165.)
Wysocki left the room but returned a few moments later and told
Suarez that instead of discharging Dufort he was going to give
her a written warning and suspend her. (Tr. 166, 168, 201.)
Wysocki told Suarez that none of the housekeepers should use
stained bedding in the future. (Tr. 166, 168.) Suarez then at-
tempted to tell Wysocki about the housekeepers’ long-standing
practice of placing a bed sheet on top of a stained blanket. (Tr.
166.) Wysocki cut Suarez off, saying that this could not continue
to happen and he didn’t want to hear about it. (Tr. 166–167.)
At 4:30 p.m., after the housekeepers’ shift ended, Raisa called
together Suarez, Dufort, and Ramon, the head of maintenance.
Tr. 167. Raisa read two documents entitled “Discipline Notice”
to Dufort, both dated March 17, and asked her to sign them. (Tr.
167, 308, 343-344; GC Exh. 19.) One of these notices was char-
acterized as a “Verbal Warning” and stated that Dufort had com-
mitted “negligence and insubordination” by failing to replace a
stained comforter with a clean comforter, despite instructions
from her supervisor. (GC Exh. 19.) This notice stated that “Pho-
tos have been taken and will be saved for referencing” in con-
nection with the incident. Id. This notice also states, “Progres-
sive action: Verbal Warning, Written Warning #1 is a sec-
ond warning, Written Warning #2 will result in 2-day sus-
pension. Written warning #3 will result in termination.” Id.
(emphasis in original). The second notice was characterized as
“Insubordination/Dishonesty,” and stated that Dufort had en-
tered the room to change the stained comforter without authori-
zation, and falsely told Suarez that she had changed the com-
forter the previous day. (GC Exh. 19.) The second notice stated,
“Please be reminded that photos were taken on March 15, 2017
with the three supervisors and Desiree Ruiz present.” Id. This
notice states as follows:
Please be advised that this notice could change into a dis-
missal notice based on further investigation of your insub-
ordination and dishonesty, according to Article XI in the
Agreement between the Union and the Hotel. 7
Progressive Action: Verbal Warning, Written Warning #1
is a second warning, Written Warning #2 will result in 2-
day suspension. Written warning #3 will result in termina-
tion.” Id. (emphasis in original).
Dufort and Suarez refused to sign the warnings, stating that
they did not agree with them, so Ramon signed as a witness. (Tr.
167–168, 308–309, 343–344.) Dufort also said that she intended
to call the Union. (Tr. 168.) Suarez then called Stern from the
locker room used by the housekeepers, and gave Stern Dufort’s
phone number. (Tr. 168.) Suarez described the stained com-
forter incident to Stern, and explained that Respondent had
shall be furnished to him. Discharges and disciplinary action shall con-
stitute cases which come under the method of settling grievances herein
provided, and shall be subject to arbitration, upon the demand of the
Union only if not amicably adjusted. All claims for unjustifiable dis-
charges must be takes [sic] up by either party not later than five (5)
working days afte rht date of discharge, or such claims shall be deemed
to have been waived.
(GC Exh. 3, p. 6.)
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 7
issued written warnings accusing Dufort of lying because she
had not in fact changed the comforter. Tr. 168.
Dufort contacted Stern on March 16 or 17, and told Stern that
she had received two disciplinary forms regarding the stained
comforter cover. (Tr. 50, 309–310.) Dufort told Stern that the
housekeeping supervisor had claimed there was a stained com-
forter cover in one of her rooms, and that even though Dufort
had changed the comforter cover she received two written warn-
ings the next day. (Tr. 50–51.) Dufort further told Stern that all
of the housekeepers flipped over stained comforters as a general
practice, but only she had been disciplined for allegedly doing
so. (Tr. 310.) Dufort told Stern that during her 21 years of em-
ployment as a housekeeper she had received “hardly any” disci-
pline and had never received two warnings based on the same
incident. (Tr. 51.) Dufort also reported to Stern that Jessica, who
had begun working only days earlier, had been checking on her
with unprecedented frequency, between 3 and 5 times a day. (Tr.
51–52.) On March 21, Stern sent Ruiz an e-mail protesting the
discipline issued to Dufort, requesting a meeting with a union
business agent present to discuss the matter, and requesting in-
formation pertinent to Dufort’s alleged misconduct. (Tr. 52–53;
GC Exh. 5.) Arbah never responded to Stern’s March 21 e-mail,
and no meeting ever took place. (Tr. 53, 311.)
Dufort worked for a couple of days after the speaking with
Stern. (Tr. 169.) During that time, Wysocki called Suarez to his
office, with Raisa present to translate. (Tr. 169.) Wysocki told
Suarez that he was very upset and was going to fire Dufort be-
cause she had refused to sign the written warnings and had called
the Union. (Tr. 169.) Suarez told Wysocki that he should do
whatever he needed to do. (Tr. 169.) Subsequently Raisa told
Suarez that Wysocki was going to have another meeting with
Dufort, but no meeting was ever scheduled. (Tr. 169–170.)
Dufort was then injured in an accident and went on leave.
When she returned to work in early April, she was informed that
she had been discharged via a letter sent to her by mail. (Tr. 170,
310.) On April 7, Dufort called Stern and told her that when she
arrived at work, she had been told by the supervisor that she was
discharged and would receive a letter in the mail. (Tr. 54.) This
letter, dated April 4, states that Dufort was being discharged for
insubordination and dishonesty based upon the events of mid-
March 2017, and contains a Dismissal Notice as follows:
This letter confirms the Employer’s decision to provide
you with a dismissal notice “based on further investigation
of your insubordination and dishonesty, according to Arti-
cle XI in the Agreement between the Union and Hotel,”
stated in the disciplinary notice you received on March 17,
2017. During this investigation, it was captured on surveil-
lance that you entered room 426 on March 16, 2017 on

8 In her April e-mails regarding Dufort’s grievance and the infor-
mation request, Stern disputed Respondent’s interpretation of the griev-
ance procedure. GC Exh. 8. Article XXVI, Section C of the parties’ col-
lective bargaining agreement provides as follows:
Filing of Grievances: Grievances under the terms and conditions of the
contract shall be initiated by filing a statement thereof. The grievance
shall be initially discussed between the Employer, the Shop Steward,
and the employee involved in an attempt to settle same. Any appeals
from the decision of the Employer must be taken in writing within ten
more than one occasion without permission or approval
from your immediate supervisors in order to manipulate
findings of your improper cleaning duties during the previ-
ous day.
As a reminder, you were advised to remove the dirty
quilt and replace it with a clean quilt on March 15, 2016
[sic]. Your refusal of fulfilling your duties is proven to be
an act of insubordination. In addition, you were dishonest
by lying to your Shop Steward and accused the Supervisors
of making false accusations, which you later admitted to the
act of flipping the quilt to hide the stain. As proven in pre-
vious instances, regarding lack of proper cleaning, your ac-
tions put the Hotel at risk of guest compensation, third party
refunds, lack of repetitive business, and bad reviews with
attached photos via the Internet. In addition, such insubor-
dination and dishonesty will result in profitability issues
and loss of business.
According to Article XI, “The Employer may summar-
ily discharge any employee for dishonesty, insobriety, in-
subordination…” As a result of your actions, it is with re-
gret that we herewith notify you of the termination of your
employment with Arbah Hotel Corp. DBA Meadowlands
View Hotel. The termination of your employment is effec-
tive Tuesday, April 4, 2017.
(GC Exh. 20.)
On April 12, Stern sent an email to Ruiz, with a copy to
Wysocki and Rubio, stating that the Union was filing a grievance
regarding Dufort’s discharge. (Tr. 54; GC Exh. 6.) This email
further requested documents regarding Dufort’s employment
and termination. (Tr. 54; GC Exh. 6.) In addition, Stern renewed
the Union’s request for information, initially requested on Feb-
ruary 13 but never provided, regarding the February 9 call-in in-
cident and the December 23, 2016 incident involving Dufort’s
discovery of marijuana in a guest room. (GC Exhs. 4, 6.)
A grievance meeting regarding Dufort’s discharge took place
at the hotel on May 9. Stern, Maroko, Assistant General Counsel
Gideon Martin, and Suarez attended for the Union, while
Wysocki, Ruiz, Rubio, and housekeeping supervisors Raisa and
Paola attended for Arbah. (Tr. 55.) The Union took the position
that Dufort had been discharged in retaliation for contacting
Stern and raising grievances. (Tr. 57.) The Union further con-
tended that Dufort had been discharged for following the estab-
lished practice at the hotel—to flip over stained comforters—
even though the housekeeping employees had done so for years
without ever being disciplined. (Tr. 57.) The Union also raised
concerns that Arbah had been attempting to exclude it from the
grievance process, despite the parties’ past practice.8 (Tr. 57–
(10) working days from the day of the notice of the decision. If not so
taken, the grievance shall be deemed settled on the basis for the decision
made by the Employer and shall not be eligible for further processing.
Stern testified that despite this language the parties had a long-estab-
lished practice where union representatives other than shop stewards be-
came directly involved in grievances at their inception. Tr. 97–98. In
addition, Suarez, the shop steward or delegate, testified that about 3 to 4
years previously she had been prohibited from going to the management
offices without an appointment and issued a written warning on that
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
58.) The Union stated that it intended to file unfair labor practice
charges regarding Dufort’s discharge, but remained interested in
reaching a settlement with Arbah regarding the issue. (Tr. 58.)
According to Stern, Wysocki responded that he “had hoped to
settle the case,” but was not sure that was possible because “the
Union had put him up against the wall by filing charges.” (Tr.
58.) With respect to the actual grounds for Dufort’s discharge,
Wysocki said that Dufort had been “dishonest.” Tr. 58. How-
ever, according to Stern, Wysocki said that Dufort’s “raising all
of these issues had cost the employer a lot of time and money
and personnel time. And that was a big deal for them.”9 (Tr. 58–
59.) At the end of the meeting, Arbah was considering the Un-
ion’s request to attempt to settle Dufort’s discharge, and was to
contact the Union with respect to that issue. (Tr. 59.)
Arbah did not contact the Union regarding a possible settle-
ment of Dufort’s discharge after the May 9 grievance meeting,
so on June 14, Stern sent an e-mail to Wysocki asking whether
Respondent had any proposal. (Tr. 67–69; GC Exh. 11.) Ruiz
responded the next day, stating that the unfair labor practice case
regarding Dufort’s discharge was being investigated, and that
Arbah would “keep [the Union] posted regarding the outcome of
the case.” (Tr. 68–69; GC Exh. 11.)
C. Events Pertaining to Collective Bargaining Negotiations
and the Union’s Bargaining Representative
As discussed above, the most recent collective-bargaining
agreement between Arbah and the Union was effective by its
terms from July 1, 2011, through June 30, 2015. Negotiations
for a successor collective bargaining agreement began on May 4,
2015. (Tr. 470.) Wysocki testified that he became directly in-
volved in negotiations in around September 2015. (Tr. 643.)
Overall, there were approximately 6 negotiating sessions in
2015, 2 negotiating sessions in 2016, and 3 negotiating sessions
in 2017. (Tr. 470–471.) The last negotiating session took place
on August 30. (Tr. 471.)
The collective-bargaining agreement addresses Union visita-
tion of Arbah’s premises. Specifically, Article XX states as fol-
lows:
Visitation: Official representatives of the Union shall, upon
giving notice in advance to management, be admitted to the
Employer’s premises at all times as may be necessary to ob-
serve the working conditions existing in the operation of the
Employer in connection with the performance of this contract,
provided said inspection does not interfere with the operation
of the Employer’s establishment.
(GC Exh. 3.) Despite this language, the testimony at the hearing
established that union representatives routinely visited Arbah
without providing advance notice to management. For example,
Stern testified that she and Padilla visited employees on Arbah’s

basis. Tr. 229–230. As a result, since then she had contacted business
agent George Padilla to initiate the grievance process, instead of ap-
proaching Arbah’s management directly. Tr. 230.
9 Although Wysocki, Rubio, and Ruiz testified at the hearing, none
of them were questioned regarding this meeting.
10 Stern testified without contradiction that Padilla had been the busi-
ness agent assigned to Arbah prior to the negotiations which began in
May 2015. Tr. 71.
premises without providing notice to Respondent. (Tr. 76.)
Stern testified that she visited Arbah between one and three times
per month, sometimes for formal meetings during an employee
lunch breaks, and sometimes to speak with employees infor-
mally. (Tr. 92–94.) Stern testified that she spoke with bargain-
ing unit employees throughout the hotel’s premises, so long as
their interaction did not interfere with the employees’ work. (Tr.
92–94.) Stern understood that Union representatives visited the
premises without advance notice for some time, and that Arbah
had never raised any objection. (Tr. 100–102, 104–105.) Ruiz
similarly testified that Union representatives had visited Arbah’s
premises without providing advance notice. (Tr. 566–567.)
For several years, George Padilla had been the Union’s busi-
ness agent assigned to service its contract and bargaining unit at
Arbah.10 Tr. 71. On August 2, 2016, Wysocki wrote a letter to
Union President Peter Ward, stating that because of Padilla’s be-
havior at a grievance meeting he would no longer be permitted
on Respondent’s premises. (Tr. 148–150; GC Exh. 15.)
Wysocki stated that if Padilla appeared on the premises law en-
forcement would be called to remove him. (GC Exh. 15.) Sub-
sequently, the Union filed unfair labor practice charges regard-
ing Arbah’s denial of access to Padilla.11 (Tr. 72.) These charges
were resolved in a settlement agreement between Arbah and the
Union dated January 27. (Tr. 72–73; GC Exh. 12.) The portion
of this settlement agreement regarding Padilla’s visiting the hotel
states as follows:
3. The Employer will not bar any Union representatives from
the Hotel nor interfere with their access pursuant to the expired
CBA. Prior to Mr. Padilla returning to the Hotel, the parties
shall meet, provided such meeting must take place before Feb-
ruary 15, 2017.
(Tr. 73, 442–443; GC Exh. 12.) The meeting referred to in this
settlement agreement never took place. (Tr. 74, 699–700.) The
Union’s understanding was that the settlement agreement re-
solved any issues with Padilla and that Padilla would no longer
be barred from access to the hotel. (Tr. 74, 75, 152–153, 442–
443.) Stern testified that she and the union delegate at Arbah
continued to discuss grievances with Padilla, and the employees
remained in contact with him. (Tr. 74.) Indeed, Stern testified
that the bargaining unit employees continued to specifically ask
that Padilla represent them as their business agent. (Tr. 78.)
However, Stern stated that some members of the management
team preferred that Padilla did not visit the hotel, and thus Padilla
visited less frequently in order to “keep peace with the em-
ployer.” (Tr. 74–75.)
Despite the January 27 settlement agreement, on March 29,
Wysocki wrote to Ward, stating that because the Union had
failed to respond to letters or e-mails sent on August 2, 2016, and
March 8, 2017,12 “pertaining [to] unprofessional behavior of the
11 Stern and Bokerman both testified that Arbah did not request bar-
gaining regarding the Union’s assignment of Padilla to the Arbah bar-
gaining unit prior to Wysocki’s August 2, 2016 letter barring him from
the facility. Tr. 149, 440–441. The charges also apparently alleged that
Arbah violated the collective bargaining agreement by failing to pay for
health insurance. GC Exh. 12.
12 This letter apparently did not involve Padilla. Tr. 150–151.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 9
Union representatives,” “from now on all of the meetings with
the Union representatives will be video recorded for future ref-
erence.” (Tr. 149–153.) Stern responded on April 13, stating
that the Union was prepared to meet and discuss the issues raised
in Wysocki’s March 8 e-mail, but that the matters addressed in
his August 2, 2016 letter had been resolved by the settlement
agreement. (Tr. 154; GC Exh. 17.)
Sometime late in the summer, Padilla visited the hotel and
spoke to Wysocki. Rubio testified that she was working in the
housekeeping department when she saw Padilla, who told her
that he had stopped by to see the Union members and asked to
speak to Wysocki. (Tr. 544–545.) Rubio told Padilla that
Wysocki was in the meeting room or in the second floor office.
(Tr. 545.) At some point, Rubio went upstairs, and saw Wysocki
and Padilla speaking outside the meeting room. (Tr. 545–546.)
Rubio did not hear everything that was said, but heard Wysocki
tell Padilla more than once, “you’re in violation to come
here…you shouldn’t be here.” (Tr. 546.) Padilla then left. (Tr.
546.) Rubio testified that this occurred in either July or the be-
ginning of August of 2017. (Tr. 551–552.) Wysocki also dis-
cussed this incident during his testimony. Wysocki stated that
Rubio came into the meeting room and told him that Padilla was
on the premises, and that he saw Padilla in the hall as they left.
(Tr. 672.) Wysocki stated that he asked Padilla why he came
without calling, and Padilla attempted to talk to him, “kind of
pushy.” (Tr. 672.) Wysocki testified that he told Padilla that he
was busy and could not talk and asked him to leave. (Tr. 672.)
Wysocki stated that the incident occurred in August but could
not recall whether it took place a couple of days before the Au-
gust 23 bargaining session, or between that session and the ses-
sion on August 30. (Tr. 678.) Bokerman stated that Padilla’s
calendar contained entries for visits to Arbah on August 9 and
August 23. (Tr. 561–563.) Wysocki could not recall any discus-
sions with the Union regarding Padilla’s behavior after this inci-
dent, and Bokerman testified that it was never raised with the
Union. (Tr. 444, 680.)
On August 23, the parties met at the Union’s offices for a bar-
gaining session. (Tr. 76–77, 432–434.) Maroko, Bokerman,
Stern, Padilla, and another staff member in the Union’s legal de-
partment were present for the Union, and Wysocki, Ruiz and
Lorenc were present for the employer. (Tr. 77, 433–434.) Stern
and Bokerman both testified that Padilla actively participated in
this meeting, discussing health insurance and pending griev-
ances. (Tr. 77, 440.) Arbah did not object in any way to Padilla’s
participation in the meeting, or object to Padilla serving as a un-
ion representative. (Tr. 77–78, 440, 680.)
On August 24, Wysocki, through Ruiz, sent Stern an e-mail
stating that Arbah would not recognize Padilla as the Union’s
business agent, and that law enforcement would be contacted to
remove Padilla if he came on the premises. (Tr. 75–76, 85, 443–
444; GC Exh. 13, 31.) In this letter, Wysocki again refers to his
August 2, 2016 and March 8 letters, contending that Ward “ig-
nored” them. (GC Exh. 13, 31.) Arbah did not request bargain-
ing or otherwise discuss Padilla’s behavior with the Union prior
to its August 24 letter to Stern. (Tr. 77–78, 440, 444, 680.)
On September 27, Bokerman sent an e-mail to Ruiz, asking
for dates to resume collective bargaining negotiations, but Arbah
did not respond. (Tr. 471–473; GC Exh. 37.) Bokerman wrote
to Ruiz again on October 5, asking her to provide additional
dates for contract negotiations. (Tr. 473–474; GC Exh. 37.)
Ruiz stated in response that Wysocki was working on the man-
agement team’s schedule and would provide dates for further ne-
gotiations at the beginning of the next week. (Tr. 474; GC Exh.
37.) When Bokerman did not receive any further information,
she wrote to Ruiz again on October 16 asking for an update, and
on October 27, stating “Please provide dates to meet as soon as
possible.” (Tr. 474–475; GC Exh. 37.) Still hearing nothing,
Bokerman wrote to Ruiz again on November 6, describing their
previous correspondence and asking again for dates to resume
contract negotiations. (Tr. 475; GC Exh. 37.) Arbah did not
respond, so Bokerman wrote to Ruiz again on November 15 and
November 29, asking for additional bargaining dates. (Tr. 475–
476; GC Exh. 37.) Arbah never responded to Bokerman’s e-
mails, and never explained its lack of response to the Union. (Tr.
476.)
Sometime in 2017, Arbah filed an action in the United States
District Court for the District of New Jersey against the Union.
(Tr. 673–674.) Wysocki testified that the purpose of the lawsuit
was to compel the Union to permit Arbah to implement an alter-
native health plan. (Tr. 691, 707.) Arbah is represented in con-
nection with the lawsuit by Michael Farhi, Esq. (Tr. 707; GC
Exh. 38.) Settlement discussions conducted in the context of the
federal litigation have also involved issues addressed in the col-
lective bargaining agreement, at the behest of the federal judge
involved. (Tr. 673–676, 707–708; GC Exh. 38.) However, in an
April 11, 2018 email to Bokerman, Farhi represented that, “the
discussions have been settlement negotiations to resolve the
pending lawsuit and have always been framed that way,” be-
cause “[t]hat is what the judge hearing this case has ordered.”
(GC Exh. 38.) Farhi stated that he and his colleague representing
Arbah in connection with the federal litigation “have no author-
ity to collectively bargain for a new agreement.” (GC Exh. 38.)
D. Events Pertaining to the Failure to Make Health Fund Con-
tributions and Respondent’s September 8 Letter to the Bargain-
ing Unit Employees
The collective-bargaining agreement in effect from July 1,
2011 through June 30, 2015 required Arbah to make contribu-
tions to UNITE HERE Health (the Fund). (Tr. 406–407; GC
Exh. 3.) Article XIV of the contract requires that Arbah make
contributions at specified rates for all bargaining unit employees
who have not voluntarily waived coverage. (GC Exh. 3, p. 7–8.)
At the time that the contract was executed, UNITE HERE Health
had only established contribution rates for 2012. (GC Exh. 3, p.
7.) Pursuant to the terms of the contract, Arbah and the Union
agree to be bound by the UNITE HERE Health Trust Agreement,
and all procedures established thereunder. (GC Exh. 3, p. 7.)
Section 5 of Article XIV provides that “The parties agree and
understand that, if the appropriate welfare contribution rates are
not paid, the Trustees of the Fund may eliminate benefits to oth-
erwise eligible participants and terminate the Employer’s partic-
ipation pursuant to paragraph I.I. of the Fund’s Minimum Stand-
ards.” (GC Exh. 3, p. 8; Tr. 408–409.) Thus, if Arbah failed to
make the required contributions, coverage would terminate and
the employees would lose health insurance. (Tr. 408–409, 414–
415.)
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bokerman testified that her responsibilities as Associate Gen-
eral Counsel for the Union include matters involving the Fund.
(Tr. 412–413.) Bokerman testified that the Fund generally re-
quires contributing parties to have a current collective bargaining
agreement in effect. (Tr. 411, 413–414.) Before initiating
healthcare coverage, the Fund is provided with a copy of the per-
tinent collective bargaining agreement to determine whether it
meets the Fund’s minimum standards. (Tr. 413–414.) If there is
no collective bargaining agreement in effect, the Fund allows the
employer and the Union 12 months to negotiate an acceptable
contract meeting its minimum funding standards. (Tr. 414.) Par-
ties can also request a variance, or an extension agreement meet-
ing the Fund’s minimum standards. (Tr. 414.)
Pursuant to Article XIV of the collective-bargaining agree-
ment, contributions to the Fund must be remitted by the 15th of
the month following the month for which health insurance cov-
erage was provided; i.e., an employer’s contribution for the
month of June would be due by July 15. (Tr. 407–408; see also
GC Exh. 3, p. 8.) Bokerman testified that when an employer is
delinquent in its contributions, the Fund sends the employer a
letter containing a notice of a possible loss of coverage, and often
contacts the Union to let them know about the delinquency as
well. (Tr. 413.)
Because the Fund had not released its stated contribution rates
for 2013 and 2014, sometime in February 2012 the parties nego-
tiated a side-letter addressing this issue. (R.S. Ex. 2, p. 16.) In
this side-letter, the parties agreed that in the event the 2013 con-
tribution rates established by the Fund exceeded twenty percent
of the 2012 rates, Arbah would not be required to pay the July 1,
2013 wage increases required pursuant to Article IV of the col-
lective-bargaining agreement. (R.S. Exh. 2, p. 16.) The parties
also agreed in that event “to reopen the CBA, to meet and discuss
whether they mutually desire to modify it, in whole or in part.”
(R.S. Exh. 2, p. 16.) The side-letter further states that “Should
the Hotel find a more affordable health care alternative, the par-
ties agree that the Hotel may change providers, provided such
alternative maintains the same if not better level of current ben-
efits, eligibility threshold, and coverage without employee con-
tributions.” (R.S. Ex. 2, p. 16.) Finally, the side-letter stated that
“Any and all disputes between the parties or regarding the inter-
pretation or application of this Agreement shall be submitted to
arbitration” pursuant to the collective bargaining agreement.
(R.S. Exh. 2, p. 16.)
Desiree Ruiz testified that she began working with insurance
brokers to obtain a health insurance plan for the bargaining unit
employees to replace the coverage provided by the Fund in 2015,
after the contract’s expiration. (Tr. 587–588). Ruiz testified that
she was told at that time to obtain rate quotes for health benefits
for the bargaining unit employees. (Tr. 588.) Ruiz was told by
the insurance brokers that in order to find an appropriate plan she
needed to obtain census data (Social Security numbers, dates of
birth, and addresses) for every potential participant, including
the bargaining unit employees’ dependents. (Tr. 588.) Ruiz at-
tempted to obtain the information from the Fund and the Union,
and eventually the Union agreed to allow Arbah to obtain the
information directly from the bargaining unit employees. (Tr.
588–591, 593–594.) Ruiz was then able to obtain quotes from
brokers. (Tr. 594–595.)
The parties’ January 27 agreement settling the then-pending
unfair labor practice charges also addresses Arbah’s contribu-
tions to the Fund. (Tr. 409–410; GC Exh. 12.) In that agreement,
Arbah agreed to pay $190,860.96 for all contributions owed dur-
ing calendar 2016, and the Fund agreed to waive any claims for
liquidated damages and interest. (GC Exh. 12, ¶ 1.) In addition,
Paragraph 2 of the January 27 agreement states “The Hotel
agrees to make contributions to the Fund pursuant to the terms
of the expired CBA at rates determined by the Fund in accord-
ance therewith.” (GC Exh. 12.)
Subsequent to the January 27 agreement, however, Arbah be-
came consistently delinquent in its contribution to the Fund. (Tr.
416.) As a result, the Fund sent Arbah letters after the 15th of
the month in March, April, May, June, and July and on August
21, stating that Arbah had not made its required contributions
and was delinquent. (Tr. 415–425; GC Exhs. 21, 22, 23, 24, 25,
26.) Each of these letters informed Arbah that if the required
contribution was not made, Arbah would be subject to termina-
tion from participation in the Fund effective at the end of the
month, and that if termination occurred bargaining unit employ-
ees would no longer be eligible for benefits. (GC Exhs. 21, 22,
23, 24, 25, 26.) Some of these letters stated, “in order to avoid
a termination and a gap in your employees’ coverage, you
must submit your…payment immediately.” (GC Exh. 24, 25)
(emphasis in original). Each month, Arbah paid the delinquent
contributions, and the bargaining unit employees’ health cover-
age continued. (Tr. 417, 418, 420, 421, 423.) The Funds’ Au-
gust 21 letter stated that in addition to Arbah’s delinquency for
that month, the 12-month period to enter into an acceptable suc-
cessor contract had expired. (Tr. 424; GC Exh. 26.) As a result,
the parties needed to submit a finalized collective bargaining
agreement, request a variance or extension of time to continue
negotiating, or execute an extension agreement. (Tr. 424; GC
Exh. 26.)
After receiving the August 21 letter from the Fund, the Union
requested a variance in order to ensure that the bargaining unit
employees’ health insurance continued while a new contract was
being negotiated. (Tr. 425.) On August 22, Bokerman sent an
e-mail to Scott Mathson of the Fund requsting that the Trustees
approve an extension of time to negotiate a renewal contract with
Arbah. (Tr. 425–426; GC Exh. 27.) Later that day, Stern in-
formed Bokerman that Arbah was distributing information to the
bargaining unit employees regarding a new health plan, and en-
couraging them to sign up. (Tr. 428–429.) Bokerman called
Lorenc, who told her that Arbah had found alternative coverage
after learning via the Fund’s August 21 letter that the Fund in-
tended to terminate its coverage at the end of the month. (Tr.
429.) Because there had not been any negotiations regarding Ar-
bah’s proposed alternative health plan, Bokerman asked Lorenc
to send the Union plan documents and specific information. (Tr.
429–430.) Lorenc said he did not have anything, but would try
to provide some information before the negotiating session
scheduled for the next day. (Tr. 430.) On August 23, Lorenc
sent Mathson an e-mail stating that Arbah did not wish to
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 11
proceed with the extension requested by the Union.13 (Tr. 427–
428, 431; GC Exh. 28.) Lorenc stated that because the Fund’s
August 21 letter stated that it was terminating coverage, Arbah
“procured comparable coverage for its employees,” so that an
extension was not necessary. (GC Exh. 28.) Later in the after-
noon of August 23, the Fund sent an e-mail to Bokerman,
Lorenc, Maroko, and Wysocki stating that it had granted an ex-
tension of time until November 30, so long as Arbah remained
current on its contributions on a month-to-month basis. (Tr.
431–432; GC Exh. 29.)
On August 23, the parties met for contract negotiations at the
Union’s office in New York City, and discussed the healthcare
issue as well. (Tr. 432.) As discussed above, Bokerman,
Maroko, Stern, Padilla, and Rodriguez attended for the Union,
and Lorenc, Wysocki and Ruiz attended for Arbah. (Tr. 433–
434.) During this session, the Union requested a summary plan
description or benefits at a glance for an overview of the cover-
age the proposed replacement plan would provide. (Tr. 434.)
The Union further requested the total cost per employee per
month, documents regarding dental and vision care, and any no-
tices to employees that had been provided regarding the pro-
posed plan. (Tr. 434.) Arbah took the position at the meeting
that the coverage was comparable but could not answer specific
questions. (Tr. 434–435.) The parties arranged another bargain-
ing session for August 30, and Arbah agreed to bring represent-
atives from its insurance broker to explain the details of the pro-
posed health plan. (Tr. 435.)
During the next couple of days the parties exchanged e-mails
regarding the variance and the implementation of the alternative
health plan. On August 24, Lorenc e-mailed Bokerman, again
rejecting the Fund’s extension of the variance. (Tr. 446–447; GC
Exh. 32.) Lorenc stated that Arbah did not unilaterally imple-
ment the proposed replacement plan due to the Fund ‘s state-
ments in its June 21 letter regarding termination of coverage.
(GC Exh. 32.) Lorenc stated that Arbah would make its contri-
bution to the Fund for August, but could not meet to discuss the
details of the replacement plan until before August 30. (GC Exh.
32.) On August 25, Michele Reynolds of the Fund wrote to
Lorenc, with a copy to Bokerman, Maroko, and Ruiz. (Tr. 448–
452; GC Exh. 33.) Reynolds stated that the Fund’s June 21 letter
constituted a notice that Arbah’s participation might be termi-
nated if it failed to make required contributions; because Arbah
continued to make contributions its participation was not in fact
terminated. (GC Exh. 33.) Reynolds also stated that the Fund’s
regular practice was to request and grant variance extensions
from the Trustees even if one party participating in collective
bargaining negotiations objected. (GC Exh. 33.) Finally, Reyn-
olds stated that the extension was contingent upon Arbah’s re-
mitting required Fund contributions on a monthly basis. (GC
Exh. 33.) Thus, Reynolds asked Lorenc to confirm immediately

13 Arbah had been in favor of an earlier 90-day variance obtained
from the Fund in February. Tr. 435–439; G.C. Ex. 30.
14 Sometime in August, Arbah had arranged for the insurance brokers
to conduct a “seminar” at the hotel for the bargaining unit employees to
describe the Qual Care health plan coverage and copays. Tr. 598–599,
632, 669. During this seminar, the employees were presented with a pre-
filled application for Qual Care coverage ready to be signed, but they
declined to do so. Tr. 669, 692–693.
any intention by Arbah to forego remitting the September con-
tribution, otherwise due October 15. (GC Exh. 33.) Reynolds
stated that the Fund would treat such a confirmation as Arbah’s
withdrawal from participation. (GC Exh. 33.)
Subsequently in late August, Bokerman called Lorenc and
asked that Arbah refrain from implementing the proposed Qual
Care health care plan for one month to attempt to negotiate a new
contract. (Tr. 453–454.) Lorenc called Bokerman later and said
that Arbah would not agree to do so, and that Arbah wanted to
implement the new health insurance as of September 1. (Tr.
455–456.) On August 29, the Union filed an unfair labor practice
charge alleging that Arbah unlawfully threatened to unilaterally
implement the new health plan. (Tr. 454; GC Exh. 1(g).)
The parties next met at the Union’s office on August 30.
Bokerman, Maroko, Stern, and Rodriguez attended for the Un-
ion, and Lorenc, Wysocki and Ruiz attended for Arbah, as well
as two representatives from the the proposed new Qual Care
health plan. (Tr. 146, 456.) At this point, Arbah had provided a
side-by-side comparison of the Fund and Qual Care plans.14 (Tr.
456, 598, 503–506; R.S. Exh. 3.) The insurance representatives
also presented information regarding the health coverage and co-
pays, and responded to the Union’s questions. (Tr. 456, 598,
602.) The Union continued to ask for information that had not
yet been provided, including a summary plan description, the
provider network, and the total cost for the Qual Care plan per
employee per month.15 (Tr. 146–147, 456.) Bokerman testified
that the brokers stated that they could not provide a summary
plan description until the Qual Care plan was adopted. (Tr. 503.)
During this session, the parties also discussed other contract
terms. (Tr. 457.) Although Lorenc and Maroko discussed wage
increases in a sidebar, Arbah did not propose providing the bar-
gaining unit employees with wage increases from the savings
which would result from changing health plans, and the parties
did not discuss that issue. (Tr. 458.) As the session ended, the
Union stated that a number of issues remained open for addi-
tional negotiations. The Union still had questions regarding the
health insurance plan, and stated that it needed additional docu-
ments in order for negotiations to continue. (Tr. 146–147, 457–
458, 609.) Specifically, the Union requested a breakdown of the
total cost per employee per month, the provider network, and in-
formation regarding the dental and vision plans in order to eval-
uate the proposed Qual Care coverage and compare it to the plan
offered through the Fund. (Tr. 525–526.) No additional bargain-
ing session was scheduled at that point. (Tr. 459.)
On or around September 8, Arbah distributed a letter to the
bargaining unit employees regarding the collective bargaining
negotiations and health insurance coverage. (Tr. 650; GC Exh.
14.) Suarez testified that housekeeping supervisor Paola gave
her and other Union members a Spanish-language version of the
letter while they were working, and told them they had to sign to
15 Ruiz testified that the insurance brokers provided the
savings information requested by the Union but as a per-
centage. Tr. 603. Ruiz could not recall the insurance bro-
kers providing an estimate of the per-employee cost or sav-
ings as a dollar amount. Tr. 603.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
acknowledge receipt. (Tr. 175–176.) Suarez asked Paola for an
English-language version of the letter. (Tr. 176; GC Exh. 14.)
Suarez then called Stern and told her that Arbah was distributing
a letter to the employees. (Tr. 78, 177.) Suarez also took a photo
of the English-language version of the letter, and sent it to Stern.
(Tr. 78–79, 177; GC Exh. 14.) Housekeeper Meleda Coronado
similarly received a copy of the September 8 letter from Rubio
and Wysocki while she was working in one of the guest rooms.
(Tr. 376–377; GC Exh. 14.) Wysocki and Rubio told Coronado
that the letter involved medical insurance and the Union. (Tr.
377.) They also told Coronado to go downstairs and sign to ob-
tain medical coverage and get out of the Union. (Tr. 381–382,
390–392.)
The complete text of the September 8 letter distributed by Ar-
bah to the bargaining unit employees, in evidence as General
Counsel Exhibit 14, reads as follows:
Dear Employees,
As you all know, two years have already passed and
we have been unsuccessful in signing a new contract with
the Union. I have decided to reach out to you individually
to explain to you the situation, since the signing of the
Agreement deeply affects your job stability and security
as well as the future of the hotel ‘s operation.
Within the last three years, four new hotels have been
built in our immediate neighborhood, with one build
straight behind our parking lot. There is another one
opening soon, not more than one mile south on Route 1
and 9. This puts new challenges on all of us because we
now must compete with newly open facilities that pro-
vide a few of hundred extra hotel rooms in our vicinity.
We are trying to keep our hotel in top line as we are con-
stantly renovating and bringing our services up to new
standards that are dictated by this new reality.
From the start of our negotiations with the Union,
they have been trying to implement a completely new
contract, known as the GRIWA (Greater Regional Indus-
try Wide Agreement). This contract is acceptable for the
larger and prosperous hotels in Manhattan and New Jer-
sey, but for a hotel like ours that operates in an economi-
cally deprived area with such strong competition. Sign-
ing into that general GRIWA contract would be for us
betting for bankruptcy. The Union officials do not care
for it. The only thing they are concerned about is their
high salaries and bonuses as well as an easier way to ne-
gotiate one general contract that applies to all hotels.
The Union is trying to put unreasonable pressure on
management by filing unfounded charges against us with
the National Labor Relations Board almost every day
without dealing directly with us first. This amount of la-
bor and time spent answering charges burdens our staff
and prevents them from working on marketing and gen-
eral operations of the hotel. This causes deprives you
from sufficient working hours and causes us to lose busi-
ness.
Once again, we are currently presenting the Union
with a new Health Insurance policy for you, as our em-
ployees, and your families. Our proposed insurance is
exactly the same and with some benefit coverage better
than the insurance Union is offering and willing to pro-
vide now. This health insurance will also bring us some
financial savings that Union is unable or unwilling to
match. According to the contract, we have a right to pro-
vide you with the same if not better health insurance. The
Union officials, to their own benefit, are preventing you
from having continued health insurance coverage. Your
new health insurance policy is readily available, to be
signed and enrolled into, without unnecessary lapses or
loss in coverage.
Please be advised that if you decided not to take our
offer of health insurance, you would have to request that
the Union provide you with health insurance coverage to
be the same or better and less expensive than the benefits
we are providing. If the Union is not willing to provide
a Health Insurance policy that is the same or better and
less expensive than our offered health benefits policy,
you will be jeopardizing yourself and your families and
be subject to losing coverage, as per the termination of
the current plan.
To the Union, we are proposing to renegotiate our ex-
pired contract while offering to give all of you a salary
increase of 75 cents per hour in the first year and 50 cents
increase per hour for the second year of the new contract
so that we may share with you our savings from the
newly offered Health Insurance Plan.
The minor changes to our “old contract’’ would not
affect anything concerning your work environment or
condition. The Union rejected our proposals only to pro-
tect their massive financial gains from their inefficient
Health Insurance offered to you and to preserve their
own interest while not caring for your job security and
the health of you and your families.
During the last meeting, when the insurance brokers
informed you about the new health insurance plan, some-
one from the union employees group that was present
threatened to go on strike. Please be advised that if you
decide to go on strike we would have no other choice but
to call on a lockout and hire new employees to replace all
of the workers who would decide to go on strike. We can-
not allow a few troublemakers to destroy the jobs of other
hard-working employees in our hotel who would not be
willing or choose to strike. Please also be advised that all
of you who willingly decide to reject and choose to waive
coverage of our Health Insurance Plan will not receive
the coverage.
Included with this letter please find the forms to ei-
ther enroll into or waive the new Health Insurance Plan.
Please return all signed documents no later than today
and return to your department supervisor/manager who
will then provide them to the Executive Office. If you
choose to reject the coverage you MUST return the
signed waiver. If you decide not to bring it back we
will consider it as the rejection.
Thank you for cooperation and please be reminded
that unions come and go, but we will continue to work to-
gether and in many instances for more than 25 years as
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 13
we have provided you with many opportunities to sup-
port yourselves and your families and offer the best avail-
able health insurance.
Regards,
Steve Silverberg President
Arbah Hotel Corp.
Mark Wysocki Vice President
Arbah Hotel Corp.
Respondent had not discussed the September 8 letter with the
Union prior to distributing it to the employees. (Tr. 80, 460–
461.) Furthermore, Bokerman testified that the Union had not
been informed of Arbah’s proposal to provide the wage increases
the letter describes, or that Arbah intended to share the savings
from the new health plan with the employees in this manner. (Tr.
462–463.) In fact, on September 8, Bokerman e-mailed Lorenc
regarding the letter distributed to employees and the Union’s out-
standing request for information regarding the Qual Care plan.
(Tr. 463–464; GC Exh. 34.) Lorenc responded that Arbah’s lat-
est offer on wage increases involved a 75-cent increase per year
for the 3-year term of the contract, which had apparently been
conveyed to Maroko on September 5. (GC Exh. 34.)
On October 20, the Fund sent another notice to Arbah and the
Union stating that Arbah was delinquent in its health fund con-
tribution for September. (Tr. 465–467; GC Exh. 35.) As with
previous delinquency notices, the October 20 letter stated, “in
order to avoid termination and a gap in your employees’ cov-
erage, you must submit your September 2017 report and
payment immediately.” (GC Exh. 35) (emphasis in original).
On November 1 and 2, Bokerman emailed Scot Mathson of the
Fund and asked about the current status of health insurance cov-
erage for the bargaining unit employees. (Tr. 467–470.) On No-
vember 2, Mathson responded that because the Fund did not re-
ceive a report or payment from Arbah for September, the bar-
gaining unit employees had lost coverage for November. (Tr.
85–86; GC Exh. 36.) At that time, the bargaining unit employees
had not been placed in a new health insurance plan. Tr. 468. It
was not until June 14, 2018, that the Union was informed by new
counsel for Arbah that the bargaining unit employees at Arbah
had been enrolled in a new health insurance plan as of June 1,
2018. (Tr. 469.) At the time of the hearing, Arbah had not pro-
vided any information regarding the new health insurance plan
to the Union. (Tr. 469.)
III. DECISION AND ANALYSIS
A. Credibility Resolutions
Evaluating a number of the pertinent fact issues in this case
necessarily involves an assessment of witness credibility. Cred-
ibility determinations require consideration of the witness’ testi-
mony in context, including factors such as witness demeanor,
“the weight of the respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences drawn
from the record as a whole.” Double D Construction Group, 339
NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623
(2001), enfd. 56 Fed.Appx. 516, D.C.Cir. 2003; see also Hill &
Dales General Hospital, 360 NLRB 611, 615 (2014).
Corroboration and the relative reliability of conflicting testimony
are also significant. See, e.g., Precoat Metals, 341 NLRB 1137,
1150 (2004) (lack of specific recollection, general denials, and
comparative vagueness insufficient to rebut more detailed posi-
tive testimony). It is not uncommon in making credibility deter-
minations to find that some but not all of a particular witness’
testimony is reliable. See, e.g., Farm Fresh Co., Target One,
LLC, 361 NLRB 848, 860 (2014).
In addition, the Board has developed general evidentiary prin-
ciples for evaluating witness testimony and case presentation.
For example, the Board has determined that the testimony of a
Respondent’s current employees may be considered particularly
reliable, in that it is potentially adverse to their own pecuniary
interests. Covanta Bristol, Inc., 356 NLRB 246, 253 (2010);
Flexsteel Industries, 316 NLRB 745 (1995), affd. 83 F.3d 419
(5th Cir. 1996). It is also well-settled that an administrative law
judge may draw an adverse inference from a party’s failure to
call a witness who would reasonably be assumed to corroborate
that party’s version of events, particularly where the witness is
the party’s agent. Chipotle Services, LLC, 363 NLRB No. 37, p.
1, fn. 1, p. 13 (2015), enfd. 849 F.3d 1161 (8th Cir. 2017); Roo-
sevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006).
Adverse inferences may also be drawn based upon a party’s fail-
ure to introduce into evidence documents containing information
directly bearing on a material issue. See Metro-West Ambulance
Service, Inc., 360 NLRB 1029, 1030, and at fn. 13 (2014).
In making credibility resolutions here, I have considered the
witnesses’ demeanor, the context of their testimony, corrobora-
tion via other testimony or documentary evidence or lack
thereof, the internal consistency of their accounts, and the wit-
nesses’ apparent interests, if any. Any credibility resolutions I
have made are discussed and incorporated into the analysis
which follows.
B. The Discharge of Marie Dufort on April 7, 2017 (Consoli-
dated Complaint ¶¶ 16-17)
The Consolidated Complaint alleges that Arbah violated Sec-
tions 8(a)(3) and (1) of the Act by discharging Marie Dufort on
April 7 in retaliation for her support for and activities on behalf
of the Union.
The Board evaluates allegations of unlawful discharge involv-
ing employer motivation using the analysis articulated in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981); see also NLRB v. Transportation Management Corp., 462
U.S. 393, 395 (1983). Pursuant to Wright Line, General Counsel
must establish that an employee’s union or protected activity was
a motivating factor in the discharge. Adams & Associates, Inc.,
363 NLRB No. 193 at p. 6 (2016), enfd. 871 F.3d 358 (5th Cir.
2017). In order to do so, General Counsel must adduce evidence
to demonstrate that the employee in question engaged in union
or protected concerted activity, the employer’s knowledge of that
activity, and antiunion animus on the employer’s part. Adams &
Associates, Inc., 363 NLRB No. 193 at p. 6; Libertyville Toyota,
360 NLRB 1298, 1301 (2014), enfd. 801 F.3d 767 (7th Cir.
2015). If General Counsel substantiates these elements of a
prima facie case, the burden then shifts to the employer to show
that it would have taken the same action in the absence of the
employee’s protected conduct. Adams & Associates, Inc., 363
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB No. 193 at p. 6, citing Manno Electric, 321 NLRB 278,
283 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997). In order to
do so, the employer cannot simply present a legitimate reason for
the adverse action but must persuade by a preponderance of the
evidence that it would have taken the same action even in the
absence of the employee’s protected activity. North West Rural
Electric Cooperative, 366 NLRB No. 132 at p. 18 (2018);
Durham School Services, 360 NLRB 694, 701 (2014).
The evidence here establishes that Dufort engaged in union
activity prior to her April 7 discharge and the March 15 incident
that allegedly precipitated her termination.16 I found Sarah Stern
and Carmen Suarez to be forthright and credible witnesses, both
of whom testified to the best of their knowledge and recollec-
tion.17 The evidence establishes that Dufort complained to them
after supervisor Paola called her on February 8 to work an extra
shift the next day, only to send her home on February 9 because
the shift was no longer available. It is undisputed that Wysocki
subsequently met with Dufort and Suarez and offered Dufort 4-
hours pay in order to resolve the issue. The evidence further es-
tablishes that despite this meeting, Dufort sought the Union’s in-
tervention to obtain the resolution to which she felt she was en-
titled. Stern then sent Ruiz an e-mail on February 13 requesting
information regarding both the February 9 call-in incident and
an incident in December 2016 regarding a supervisor’s response
after Dufort reported that she had discovered a large quantity of
marijuana in one of the rooms she was assigned to clean. Later
in February the parties, including Dufort, met again regarding
these issues, this time with Stern and union representative Nich-
olas present. Dufort’s complaints to Stern and participation in
the ensuing grievance meetings constituted protected union ac-
tivity. See NLRB v. City Disposal Systems, Inc., 465 U.S. 822,
836 (1984); Brad Snodgrass, Inc., 338 NLRB 917, 923 (2003);
John Conlee Enterprises, 317 NLRB 1082, 1085–1086 (1995),
enfd. 124 F.3d 198 (6th Cir. 1997). Wysocki, Ruiz, and house-
keeping supervisors Paola and Raisa participated in the meetings
and received Stern’s February 13 e-mail, thus establishing em-
ployer knowledge.
The record further establishes Arbah’s animus against the Un-
ion as a general matter and with respect to Dufort’s specific

16 General Counsel does not contend that Dufort’s “cover up and ly-
ing” regarding the stained comfoter constituted protected concerted ac-
tivity, as Arbah claims. R.S. Post-Hearing Brief at p. 12, 15.
17 Suarez is a 24-year employee of the hotel who has been a shop
steward or delegate for approximately 15 years, and her substantial
knowledge regarding the housekeepers’ work was apparent. Tr. 183–
184. Although still employed by Arbah at the time of her testimony, she
was also a union representative, and as such I have not ascribed a pre-
sumption of heightened reliability to her testimony. Stern testified in a
straightforward manner and was eager to clarify previous testimony
when provided with the opportunity; it was apparent from her demeanor
that she was committed to accurately depicting the pertinent events. Tr.
52, 87–88.
18 I decline to draw an adverse inference from Arbah’s failure to call
Jessica, Paola, Raisa Perez, or Rosa DiCenso as witnesses, as suggested
by General Counsel. G.C. Post-Hearing Brief at p. 29, fn. 7. The evi-
dence establishes that Rosa DiCenso and Raisa Perez were no longer em-
ployed by Arbah at the time of the hearing in this matter, and there was
no evidence presented regarding Paola and Jessica’s employment status.
Tr. 534. The record therefore does not establish that these individuals
union activity. I credit Dufort’s testimony that housekeeping su-
pervisor Jessica, admittedly a supervisor pursuant to Section
2(11) of the Act, informed Dufort on the second day of the com-
forter incident that Wysocki, “asked me to follow you wherever
[you] go because [you] complained to the Union.” Because Jes-
sica did not testify at the hearing, Dufort’s description of their
discussion is unrebutted.18 See, e.g., Mexican Radio Corp., 366
NLRB No. 65 at p. 19 (2018). Thus, I further credit Dufort’s
testimony that Jessica told her during this conversation that
Wysocki wanted to “get rid of” Dufort because she “complained
to the Union.” Indeed, Jessica’s remarks are consistent with
Wysocki’s own statement to Dufort that he did not want the Un-
ion involved because “when the Union comes, things get ugly,”
and his statement to Suarez that he intended to fire Dufort be-
cause she had refused to sign the March 17 Discipline Notices
and had called the Union.19 Similarly, Stern testified that at the
May 9 grievance meeting regarding Dufort’s discharge, Wysocki
continued to complain that Dufort’s “raising all of these issues
had cost the employer a lot of time and money and personnel
time,” which was “a big deal.”20 Wysocki also claimed at that
meeting that he might not settle Dufort’s grievance because the
Union “had put him up against the wall” by filing the instant un-
fair labor practice charge regarding Dufort’s discharge. Finally,
I have found that Arbah violated the Act in several other respects,
as discussed below, additional violations which also evince anti-
union animus. See Metro-West Ambulance Service, 360 NLRB
at 1029, and at fn. 2; Lucky Cab Co., 360 NLRB 271, 274 (2014)
(employer’s contemporaneous violations demonstrate antiunion
animus). Thus, the record establishes anti-union animus with re-
spect to Arbah, and with respect to Wysocki in particular, that
specifically involved Dufort’s activities.
The timing of Dufort’s discharge also strongly indicates that
the discharge was unlawfully motivated. The evidence estab-
lishes that on March 16, Suarez and Wysocki discussed the
stained bedding issue while Suarez was working in a guest room
with supervisor Raisa. Suarez testified that during this conver-
sation, Wysocki initially informed her that he intended to dis-
charge Dufort for “violat[ing] an article of honesty,” and Suarez
protested that he should not do so given Dufort’s diligence.
would have been inclined to testify favorably to Arbah if called. See,
e.g., Natural Life, Inc. d/b/a Heart & Weight Institute, 366 NLRB No.
53 at p. 1, fn. 1 (2018).
19 I credit Dufort and Suarez’s accounts of these conversations with
Wysocki, as Wysocki was not questioned about them and contradicted
neither during his testimony. Dufort’s testimony was occasionally emo-
tional and impassioned, and she evinced some confusion regarding the
specific dates of incidents preceding her discharge. See Tr. 301–303.
However, because Wysocki did not address these issues during his testi-
mony, Dufort’s description of their discussion is unrebutted. See Coserv
Electric, 366 NLRB No. 103 at p. 3, fn. 7, and at p. 8 (2018) (crediting
unrebutted witness testimony despite demeanor issues and conflicts be-
tween testimony and witness’ own affidavit). For that reason and based
upon Dufort’s demeanor and the consistency of her testimony with that
of other witnesses as discussed herein, I find her to be a credible witness
overall.
20 Although Wysocki, Rubio, and Ruiz testified at the hearing, they
were not questioned regarding the May 9 meeting with the Union, so that
Stern’s testimony is unrebutted in this respect.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 15
Wysocki left the room, returned a few moments later and told
Suarez that he had decided to give Dufort a written warning and
suspend her instead of terminating her employment. Later that
day, Dufort and Suarez were presented with the two Discipline
Notices, which they refused to sign, and on March 16 or 17
Dufort reported the matter to Stern. Then, during the next couple
of days, Wysocki informed Suarez, with Raisa translating, that
he intended to fire Dufort because she had refused to sign the
Discipline Notices and had called the Union. Wysocki did not
address these conversations during his testimony and Raisa did
not testify at the hearing, so that Suarez’s account is completely
unrebutted. The evidence therefore establishes that Dufort’s re-
fusal to sign the Discipline Notices and contact with the Union
were the sole relevant intervening events between Wysocki’s
statement to Suarez that Dufort would not be discharged, and his
assertion days later that he intended to discharge her for those
very reasons. Such a scenario is redolent of unlawful motivation.
See, e.g., New Haven Register, 346 NLRB 1131, 1145 (2006) (2-
week delay in imposing suspension indicative of unlawful mo-
tive where protected conduct was “the only intervening event”);
Mid-Mountain Foods, 332 NLRB 251, 252–253 (2000), enfd. 11
Fed.Appx. 372 (4th Cir. 2001).
Arbah argues that this sequence of events does not tend to es-
tablish unlawful motive because one of the Discipline Notices
states that it “could change into a dismissal notice based on fur-
ther investigation of your insubordination and dishonesty.” (R.S.
Posthearing Br. at p. 18; GC Exh. 19.) However, Arbah offers
nothing to explain Wysocki’s reasons for altering Dufort’s dis-
cipline from the suspension and written warning he had previ-
ously discussed with Suarez to a discharge. This is particularly
significant given that during his initial conversation with Suarez,
Wysocki had apparently determined that, as he told Suarez,
Dufort had “violated an article of honesty,” which entitled Arbah
to “summarily discharge” an employee pursuant to Article XI of
the collective bargaining agreement. As a result, the evidence
does not establish that Wysocki was somehow mistaken or con-
fused when he initially spoke to Suarez about the nature of
Dufort’s alleged misconduct or its potential consequences. Ar-
bah offers no explanation for Wysocki’s conversion of the disci-
pline issued to Dufort to a discharge to counter the substantial
evidence establishing that the sole intervening events involved
Dufort’s refusal to sign the Discipline Notices and contact with
the Union. And that evidence is further consistent with
Wysocki’s later comments to Suarez describing his motivation.
As discussed above, the evidence establishes that Dufort en-
gaged in union activity and that Arbah had knowledge of that
activity as well as antiunion animus. The evidence also estab-
lishes a sequence of events indicative of extremely suspect tim-
ing. As a result, the burden shifts to Arbah to demonstrate by a
preponderance of the evidence that it would have discharged
Dufort even in the absence of her union activities.
Arbah contends that Dufort was legitimately discharged for
“insubordination,” and “dishonesty.” (GC Exh. 20.) The record
evidence overall does not substantiate this contention, which I
therefore find to be pretextual. The evidence does not support
the contention in Arbah’s Dismissal Notice that Dufort was “in-
subordinate” and “dishonest” because she refused to replace a
stained comforter and/or entered room 426 on more than one
occasion without permission or approval from her immediate su-
pervisors. Dufort testified that when Jessica directed her to re-
place the stained comforter on March 15, she did so. Dufort fur-
ther testified that when Jessica directed her the next day to re-
place the comforter in the same guest room again, she replaced
that comforter a second time. Again, because Jessica did not tes-
tify, Dufort’s account of their interactions in this regard, and of
her own activities on March 15 and 16, is unrebutted. Further-
more, Suarez testified that she and Dufort visited the guest room
in question together on the morning of March 16, and corrobo-
rated Dufort’s testimony that the comforter on the bed was not
in fact stained. (Tr. 161–162, 196.) Suarez testified that when
she informed housekeeping supervisors Raisa and Paola that the
comforter was not stained, they disputed this contention. (Tr.
162.) However, neither Raisa nor Paola testified at the hearing.
In addition, none of the photographs or video of the stained com-
forter purportedly taken by the housekeeping supervisors, and
mentioned in both Discipline Notices issued to Dufort, were pro-
duced at the hearing. (Tr. 162; GC Exh. 19.) As a result, there
is simply no evidence to contradict Dufort and Suarez’s account
of the incident, or to substantiate Respondent’s. This sort of a
failure to substantiate critical aspects of the circumstances pur-
portedly justifying a discharge constitutes evidence of pretext.
Lucky Cab Co., 360 NLRB at 274–275 (2014); see also Windsor
Convalescent Center, 351 NLRB 975, 983–984 (2007), enfd. in
relevant part 570 F.3d 354 (D.C. Cir. 2009).
Furthermore, the evidence establishes that “flipping” a stained
comforter—arranging the comforter so that the stain was at the
foot of the bed and face down—was common practice among the
housekeeping staff, and had never previously been grounds for a
write-up, let alone a discharge. The failure to discipline or dis-
charge other employees for the identical or similar infractions
establishes that the employer’s proferred justifications for doing
so are in fact pretextual. See, e.g., Lucky Cab Co., 360 NLRB at
274, citing Windsor Convalescent Center, 351 NLRB at 983 (ev-
idence that other employees were not discharged for the same or
similar infractions establishes pretext). Suarez and Dufort, who
had been housekeepers for 24 and 21 years, respectively, both
testified that the common practice was to flip over stained com-
forters in this manner, because there was insufficient bedding to
adequately make up all of the guest rooms. (Tr. 51, 158, 163,
196–197, 279–280, 306–307.) This testimony was corroborated
by the testimony of two witnesses, Yvette Charles and Meleda
Coronado, employed by Arbah as housekeepers for more than 20
years. (Tr. 354, 371.) Both Charles and Coronado testified that
the housekeepers’ common practice was to flip stained comfort-
ers to the other side, instead of changing them. (Tr. 355–358,
374–375). Charles and Coronado both stated, as did Suarez and
Dufort, that flipping the stained comforters was necessary be-
cause there was inadequate bed linen for all of the guest rooms
in the hotel. (Tr. 163, 306, 356–357, 374.) Charles, Coronado,
Suarez, and Dufort all testified that they had been instructed to
flip the stained comforters over instead of replacing them by
housekeeping manager Rosa DiCenso. (Tr. 163, 306–307, 356–
357, 374–375.) Indeed, Charles testified that she and DiCenso
once flipped over a stained comforter while cleaning a guest
room with Dufort present. (Tr. 356–357.)
As currently employees who do not hold union office, Charles
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Coronado have no interest in the proceeding, and their testi-
mony is considered particularly reliable. Covanta Bristol, Inc.,
356 NLRB at 253. In addition, DiCenso did not testify, so
Dufort, Suarez, Charles and Coronado’s specific testimony that
DiCenso directed them to flip over stained comforters, and in
fact assisted them in doing so, is not only consistent but unrebut-
ted. I also note that Dufort, Suarez, Charles and Coronado had
each been employed as housekeepers at Arbah for over 20 years.
The only evidence offered by Arbah to counter General Coun-
sel’s witnesses in this regard was the testimony of Vanessa Ru-
bio, who stated that stained comforters were replaced, as op-
posed to flipped over. (Tr. 534.) However, Rubio testified that
she received training as a supervisor manager in housekeeping
“years ago,” and that she resumed working as a housekeeping
supervisor in the summer of 2017, months after Dufort had been
discharged.21 (Tr. 530, 533–534.) As a result, Rubio’s testimony
regarding the housekeepers’ practice with respect to stained
comforters does not effectively rebut Dufort, Suarez, Charles,
and Coronado’s testimony that the housekeepers, as directed by
manager Rosa DiCenso, routinely flipped stained comforters
over, as opposed to replacing them.22
The evidence further establishes that Arbah had never before
disciplined a housekeeper for flipping over, as opposed to replac-
ing, a stained comforter. Dufort, Suarez, Charles, and Coronado
all testified that prior to Dufort’s discharge none of the house-
keepers had been disciplined in any way for flipping a stained
comforter. (Tr. 175, 307, 357–358, 375.) I credit their consistent
testimony in this regard given the heightened reliability ascribed
to Charles and Coronado’s testimony and their lengthy employ-
ment as housekeepers. In addition, I credit Stern’s testimony that
Arbah stated in response to the Union’s request for other disci-
pline issued regarding stained bedding that it could not find any
similar disciplinary incidents. (Tr. 87–88.) No such discipline
was produced or entered into evidence at the hearing. Arbah
presented testimony from Rubio regarding a laundry worker who
was discharged when a blouse that a guest had reported missing
was discovered in the laundry worker’s locker. (Tr. 448–449.)
However, Rubio testified that the laundry worker was discharged
not only for “dishonesty” but also for “theft.” (Tr. 449.) Fur-
thermore, Rubio was not confident in her recall of the incident,
stating, “I believe, maybe I’m wrong, it was such a long time
ago” when describing what had occurred. (Tr. 449.) Thus, the
record evidence does not establish any consistent practice of dis-
ciplining, let along discharging, housekeeping employees for for
some sort of “dishonesty” short of theft, or for flipping over in-
stead of replacing stained comforters. Indeed, the record does
not establish any prior discipline whatsoever for flipping a
stained comforter or “dishonesty” on the part of a housekeeping
employee prior to Dufort’s discharge for these alleged infrac-
tions. This indicates that Arbah’s asserted rationale for Dufort’s
discharge was in fact pretextual. See, e.g., Lucky Cab Co., 360
NLRB at 274.

21 Suarez testified that she and other housekeepers began replacing
stained comforters, as opposed to flipping them over, only after Dufort
had been discharged. Tr. 201–202.
22 Similarly, Suarez testified that housekeepers sometimes completed
work in a room they had been assigned on the previous day, even without
In light of the foregoing, Arbah’s contention that Dufort, Sua-
rez, and Stern made inconsistent statements regarding whether
Dufort flipped the comforter or changed it as directed by Jessica
does not substantiate Arbah’s asserted rationale for the dis-
charge. (R.S. Posthearing Br. at 12–13.) As Arbah discusses in
its brief, Dufort testified that she always changed as opposed to
flipped over comforters and did so when directed by Jessica on
March 15. (Tr. 304–307.) As discussed previously, the only ev-
idence presented regarding whether Dufort changed or flipped
the comforter at that time was Dufort’s testimony. In addition,
Suarez did not state in her testimony regarding the events of
March 16 that Dufort told her that she had flipped over the com-
forter, as opposed to changing it. Instead, Suarez testified that
Dufort “didn’t have to tell me” that she had flipped over the com-
forter, because for Suarez, “that was the standard practice.” Tr.
196–197, 203. Suarez’s testimony therefore does not establish
that Dufort informed her that she had flipped over the comforter;
Suarez apparently made that assumption herself based upon the
long-standing practice of the housekeeping staff. Stern’s argu-
ment in connection with the grievance regarding Dufort’s dis-
charge that flipping over a stained comforter was an accepted
practice addresses the proffered reasons for Dufort’s discharge
and does not contradict Dufort’s assertion that she changed the
comforter when directed by Jessica on March 15.
For all of the foregoing reasons, the preponderance of the ev-
idence does not establish that Arbah would have discharged Ma-
rie Dufort on April 7 in the absence of her union support and
activities. As a result, given the evidence establishing Dufort’s
union activity, Arbah’s knowledge of and animus toward that ac-
tivity, and the suspect timing involved, Dufort’s discharge vio-
lated Sections 8(a)(3) and (1) of the Act.
C. The Denial of Access to George Padilla on August 24 (Con-
solidated Complaint ¶¶ 23–24)
The Consolidated Complaint alleges that Arbah violated Sec-
tions 8(a)(5) and (1) of the Act when it unilaterally denied access
to Union business agent George Padilla by letter dated August
24. The evidence establishes that the collective bargaining
agreement between Arbah and the Union contains a clause per-
mitting union representatives to visit the hotel’s premises. As
discussed above, Stern and Wysocki both testified at the hearing
that the parties were continuing to apply the terms of the expired
contract. In any event, it is well-settled that union access provi-
sions survive a contract’s expiration. See, e.g., Southern Baker-
ies, LLC, 364 NLRB No. 64 at p. 1, 32 (2016), enf. granted and
denied in part on other grounds 871 F.3d 811 (8th Cir. 2017);
Great Western Coca-Cola Bottling Co., 265 NLRB 766, 778
(1982), enfd. 740 F.2d 398 (5th Cir. 1984). In addition, union
visitation is a mandatory subject of bargaining which may not be
unilaterally changed. See, e.g., Noel Canning, 364 NLRB No.
45 at p. 4 (2016); Turtle Bay Resorts, 355 NLRB 1272 (2010).
The evidence establishes that on August 24, Wysocki, through
Ruiz, informed the Union in an e-mail that Arbah would not
a supervisor’s permission, if, for example, the necessary linens were not
available. Tr. 198–199. No evidence was presented by Arbah in order
to rebut Suarez’s testimony, or to establish that housekeepers had previ-
ously been disciplined for entering a room to complete their work on the
following day without a supervisor’s permission.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 17
recognize George Padilla as a union representative, and that Ar-
bah would call law enforcement to have Padilla removed from
its premises if he attempted to visit. The evidence demonstrates
that Arbah did not request bargaining or otherwise attempt to ad-
dress any issues involving Padilla with the Union before sending
its August 24 letter, even though Arbah and the Union had met
for contract negotiations—with Padilla present—the previous
day. The evidence therefore establishes that Arbah denied Pa-
dilla access to its premises without bargaining with the Union.
Arbah argues that it was permitted to deny Padilla access to
its premises by virtue of Padilla’s previous conduct. It is well-
settled that “each party to a collective bargaining relationship has
both the right to select its representative for bargaining and ne-
gotiations and the duty to deal with the chosen representative of
the other party.” Fitzsimmons Mfg. Co., 251 NLRB 375, 379
(1980), enfd. 670 F.2d 663 (1982), quoted in Neilmed Products,
358 NLRB 47, 51–52 (2012); see also J&J Snack Foods
Handhelds Corp., 363 NLRB No. 21 at p. 11 (2015), quoting
United Parcel Service, 330 NLRB 1020 fn. 1 (2000) (parties
must deal with one another’s chosen representatives “absent ex-
traordinary circumstances”). However, an employer may be re-
lieved of its duty to deal with a particular Union representative
whose presence would make bargaining “impossible or futile.”
Id. In order to make such a showing, the party must introduce
“persuasive evidence that the presence of the particular individ-
ual would create ill will and make good-faith bargaining impos-
sible.” Fitzsimmons Mfg. Co., 251 NLRB at 379 (emphasis in
original), quoting KDEN Broadcasting, 225 NLRB 25 (1976);
North Memorial Health Care, 364 NLRB No. 61 at 28 (2016),
enfd. in relevant part 860 F.3d 639 (8th Cir. 2017). The em-
ployer asserting such a defense bears the burden of persuasion
with respect to the issue. J&J Snack Foods Handhelds Corp.,
363 NLRB No. 21 at p. 11. But even in the event that there are
“instances of abuse that warrant[] changing the practice,” the
employer is still required to “bargain with the Union over possi-
ble solutions to any problems with access,” given that access is
a mandatory subject of bargaining. Frontier Hotel & Casino,
323 NLRB 815, 817 (1997), enf. granted and denied in part on
other grounds 118 F.3d 795 (D.C. Cir. 1997) (“The Act requires
that, instead of implementing its own solution to perceived
abuse, the Respondent bargain with the Union over possible so-
lutions to any problems with access”).
The conduct Arbah relies upon in order to establish that Pa-
dilla’s presence would create ill will and preclude good-faith bar-
gaining does not rise to the level required by the Board in order
to satisfy this standard. Cases where the Board has found per-
suasive evidence that the specific representative would make
good-faith bargaining impossible involve, for example, threats
of violence and death against a Respondent’s supervisor, human
resources director and president, and an “unprovoked physical
attack” on the company’s personnel director. Fitzsimmons Mfg.
Co., 251 NLRB at 379–380; see also Pan American Grain Co.,
343 NLRB 205 (2004) (representative threatened to “tear off” a
supervisor’s head and “exchange blows” with the human re-
sources director and stated that the company’s president “has to
be killed”). By contrast, the Board has found a denial of access
violation despite significant representative misconduct short of
unprovoked or severe threats of violence. See, e.g., Victoria
Packaging Corp., 332 NLRB 597, 599–600 (2000) (representa-
tive yelled, “I’m going to get you and your . . . company” at
owner after direction not to talk to employees on work time);
Long Island Jewish Hillside Medical Center, 296 NLRB 51, 71–
72 (1989) (representative cursed at and shoved manager).
Arbah’s evidence with respect to Padilla’s behavior, even to
the extent it is substantiated, does not persuasively establish that
Padilla’s presence would create ill will and obviate the possibil-
ity of good-faith bargaining. For example, Arbah presented ex-
tensive testimony from Wysocki, Rubio and Ruiz regarding pre-
vious incidents where Padilla allegedly used Spanish-language
profanity, engaged in a heated discussion with management and
bargaining unit employees, and contacted management person-
nel on their cell phones after hours. (Tr. 541–543, 567–587,
671–673; GC Exh. 15; R.S. Exh. 4.) None of this conduct would
justify prohibiting Padilla’s access to the hotel pursuant to the
cases discussed above. Moreover, all of these incidents took
place in 2015 and 2016, pre-dating the January 27 settlement
agreement specifically stating that Arbah “will not bar any Union
representatives from the Hotel nor interfere with their access pur-
suant to the expired CBA.” (GC Exh. 12.)
Arbah further claims that it was entitled to bar Padilla from
the premises in August because the January 27 settlement agree-
ment contained a “condition precedent” to Padilla’s returning—
a meeting between the parties which never in fact occurred.
(R.S. Posthearing Br. at 28–30.) The portion of the January 27
settlement agreement addressing union access provides as fol-
lows:
3. The Employer will not bar any Union representatives from
the Hotel nor interfere with their access pursuant to the expired
CBA. Prior to Mr. Padilla returning to the Hotel, the parties
shall meet, provided such meeting must take place before Feb-
ruary 15, 2017.
(GC Exh. 12.) I find that this language does not make the meet-
ing between the parties a condition precedent to Padilla’s resum-
ing visitation. While this paragraph provides for a meeting be-
tween the Union and Arbah prior to Padilla’s returning to the
premises, it requires that the meeting take place prior to February
15. This date therefore is a deadline, or a condition of the meet-
ing’s taking place. As a result, the settlement agreement does
not make the meeting a condition precedent to Padilla’s ever re-
turning to the hotel’s premises. Nor does this portion of the set-
tlement agreement somehow place the onus on Padilla or the Un-
ion to arrange the meeting or forfeit Padilla’s access to Arbah’s
premises, as Arbah contends. In fact, the paragraph specifically
states that Arbah “will not bar any union representatives from the
Hotel nor interfere with their access pursuant to the expired
CBA” (emphasis added).
Arbah introduced evidence regarding only one visit made by
Padilla to the hotel after the January 27 settlement agreement,
sometime in August. The evidence regarding this visit estab-
lishes that Padilla and Wysocki were “arguing” in the second
floor hallway outside of the meeting room, that Padilla was at-
tempting to talk to Wysocki, and that after Wysocki said, “you’re
in violation to come in here . . . you shouldn’t be here,” Padilla
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
left.23 (Tr. 544–546, 672.) Under Board law such an incident
clearly does not constitute “persuasive evidence” that Padilla’s
presence would create ill will and make good-faith bargaining
impossible. See, e.g., Claremont Resort & Spa, 344 NLRB 832,
fn. 2, 635 (2005) (unlawfully barred representative had at-
tempted to enter a meeting knowing that she was not invited, ig-
nored directives not to enter the room, used profanity, and col-
lided with a security guard); Pan American Grain Co., 343
NLRB at 205. In addition, Wysocki and Rubio, who testified
regarding this incident, could not recall whether it occurred be-
fore or after the August 24 letter was sent to the Union.24 (Tr.
551–552, 677–678.) And it is undisputed that on August 23, Pa-
dilla attended and participated in a bargaining session without
any ensuing disruption, and without Arbah’s objecting to his
presence. See Caribe Staple Co., 313 NLRB 877, 889–890
(1994) (employer’s justification for denying Union representa-
tive access belied by its failure to object to representative’s pres-
ence at negotiations, and lack of representative’s negative impact
on bargaining).
Furthermore, when questioned at the hearing regarding his
reasons for attempting to prohibit Padilla in particular from vis-
iting the hotel, Wysocki did not refer to Padilla’s allegedly
threatening behavior toward Arbah’s management personnel at
all. Instead, Wysocki testified that he prohibited Padilla from
visiting the hotel because Padilla was always, “trying to use the
leverage from our employees, meet with them downstairs,” and
“using the employees as a kind of human shield, bringing them
up and trying to agitate them.” (Tr. 670–671.) Wysocki elabo-
rated that “every time after” Padilla met with the bargaining unit
employees, “there are always a couple of days for employees to
kind of calm down and go about their business,” so that it was
“practically very uncomfortable for the employer to deal with the
employees after he has a meeting with them.” (Tr. 671.) Thus,
Wysocki’s fundamental objections to Padilla’s conduct involved
his interactions as a business agent with the bargaining unit em-
ployees. They did not concern the unprofessional behavior with
the hotel’s management staff that supposedly precipitated
Wysocki’s August 24 letter barring Padilla from the hotel prem-
ises. This inconsistency undermines Arbah’s assertions regard-
ing the basis for its denial of access to Padilla.
Finally, although Wysocki, Rubio, and Ruiz testified that Pa-
dilla violated the collective bargaining agreement by visiting the
hotel without contacting management,25 Arbah does not raise
this contention in its posthearing brief. In any event, parole evi-
dence is admissible in order to establish the existence of a past
practice inconsistent with the terms of the expired contract.
Church Square Supermarket, 356 NLRB 1357, 1359 (2011), cit-
ing Sacramento Union, 258 NLRB 1074, 1075 fn. 8 (1981) and
Smith’s Industries v. NLRB, 86 F.3d 76, 80 (6th Cir. 1996). The
evidence here establishes that despite the language of the Union
access provision, the Union’s representatives routinely visited
Arbah’s premises without providing advance notice to

23 Rubio provided the most detailed and comprehensive account of
this incident, and I therefore credit her testimony in this regard.
24 Wysocki’s contention in the August 24 letter that Ward had “ig-
nored” his August 2, 2016 letter was clearly incorrect, since the issue
management. For example, Stern credibly testified that she vis-
ited the hotel at least once a month, often without calling or e-
mailing the management office in advance. Stern testified that
during these visits she met and spoke with bargaining unit em-
ployees throughout the hotel, so long as their interactions did not
interfere with the employees’ work. Ruiz also testified that un-
ion representatives had visited the hotel without providing ad-
vance notice to management. As a result, the evidence estab-
lishes a past practice of union representatives’ visiting the hotel
without providing advance notice, despite the contract’s lan-
guage.
For all of the foregoing reasons, the evidence establishes that
Arbah violated Sections 8(a)(5) and (1) of the Act by unilaterally
denying George Padilla access to the hotel on August 24.
D. The September 8 Letter (Consolidated Complaint ¶¶ 21, 22)
The Consolidated Complaint alleges that the September 8 let-
ter distributed by Arbah to the bargaining unit employees threat-
ened the employees with the unilateral termination of their nego-
tiated health insurance coverage if they did not sign up for the
new Qual Care plan, in violation of Section 8(a)(1) of the Act.
The Consolidated Complaint further alleges that the September
8 letter constituted direct dealing with the bargaining unit em-
ployees by unilaterally threatening to discontinue their negoti-
ated health insurance coverage, in violation of Sections 8(a)(5)
and (1).
The evidence establishes that Arbah’s September 8 letter un-
lawfully threatened employees with the unilateral termination of
their health insurance coverage if the employees did not sign up
for the Qual Care plan. While an employer is entitled pursuant
to Section 8(c) of the Act to communicate its views to employees
in a non-coercive manner, such communications may not
threaten reprisals or promise benefits. Gissel Packing Co., 395
U.S. 575, 617–618 (1969). It is well-settled that threats to ter-
minate employee health insurance coverage or benefits violate
Section 8(a)(1). See, e.g., Smithfield Packing Co., 344 NLRB 1,
7 (2004), enfd. 447 F.3d 821 (D.C. Cir. 2006); Rock Island Fran-
ciscan Hospital, 226 NLRB 291, 294 (1976).
Here, Arbah’s September 8 letter went beyond the communi-
cation of its views regarding the status of bargaining and its pro-
posals pertaining to wages and health insurance. Instead the let-
ter explicitly asserted that the employees and any covered de-
pendents would likely lose health insurance entirely if they did
not sign up for the new Qual Care plan Arbah wished to imple-
ment. After contending that, “The Union officials, to their own
benefit, are preventing you from having continued health insur-
ance coverage,” the letter states as follows:
Please be advised that if you decided not to take our offer of
health insurance, you would have to request that the Union
provide you with health insurance coverage to be the same
or better and less expensive than the benefits we are provid-
ing. If the Union is not willing to provide a Health
Wysocki raised in the August 2, 2016 letter was addressed in the January
27 settlement agreement between the parties. GC Exhs. 12, 13, 15.
25 Article XX of the contract states that union representatives may
visit the hotel “upon giving notice in advance to management.” GC Exh.
3.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 19
Insurance policy that is the same or better and less expensive
than our offered health benefits policy, you will be jeopard-
izing yourself and your families and be subject to losing
coverage, as per the termination of the current plan.
(GC Exh. 14.) The letter thus informs the employees that if they
declined to participate in the Qual Care plan, they would have to
seek health insurance coverage from the Union, because the
UNITE HERE Health Fund coverage provided pursuant to the
collective bargaining agreement would no longer be available.
Wysocki formulated the issue in this manner again when cross-
examining Suarez pro se on the first day of the hearing, asking
Suarez, “So, you are willing to jeopardize your health and the
health of your family and wait for the Union to provide you with
insurance?” (Tr. 211.) Wysocki’s statements clearly convey to
the employees that if they did not sign up for the Qual Care plan
Arbah was seeking to implement, they and their covered depend-
ents would be left without health insurance entirely.
The evidence further establishes that Wysocki and Rubio di-
rectly linked signing up for the Qual Care plan with rejection of
the Union when they distributed the September 8 letter to house-
keeper Meleda Coronado. Coronado testified that Wysocki and
Rubio gave her a copy of the letter while she was working, telling
her that the letter involved medical insurance and the Union.
Coronado testified that Wysocki and Rubio then directed her to
go downstairs and sign up to obtain medical coverage and get
out of the Union. As a current employee of Arbah, Coronado’s
testimony is subject to a presumption of heightened reliability.
Covanta Bristol, Inc., 356 NLRB at 253. Ruiz testified that she
never asked employees personally to sign up for the Qual Care
plan and that to the best of her knowledge no other management
personnel did so. (Tr. 596.) However, Rubio was not questioned
regarding this conversation with Coronado during her testimony.
Nor did Wysocki address the issue, despite discussing the Sep-
tember 8 letter at length. (Tr. 654–665.) As a result, I credit
Coronado’s testimony regarding Wysocki and Rubio’s state-
ments to her at the time they gave her the letter, which explicitly
linked continued health insurance coverage via the Qual Care
plan with rejecting the Union.
For all of the foregoing reasons, the evidence establishes that
the September 8, 2017 letter contained a threat to unilaterally
terminate the bargaining unit employees’ existing health cover-
age if the employees did not sign up for the new Qual Care plan,
in violation of Section 8(a)(1) of the Act.
The evidence further establishes that Arbah dealt directly with
the bargaining unit employees via the September 8 letter, as al-
leged in the Consolidated Complaint. In order to determine
whether an employer has engaged in direct dealing in violation
of Sections 8(a)(5) and (1) of the Act, the Board evaluates
whether:
(1) the Respondent was communicating directly with union-
represented employees; (2) the discussion was for the purpose

26 The evidence does not establish that the provider network infor-
mation was given to the Union at the August 30 meeting. Although Ruiz
testified that one of the insurance brokers gave the Union a link to a web-
site where the provider network was available during the meeting, she
also testified that Stern stated that she was unable to access the link on
her computer. Tr. 604–606. In addition, Bokerman testified that the link
of establishing or changing wages, hours and terms and condi-
tions of employment or undercutting the Union’s role in bar-
gaining; and (3) such communication was made to the exclu-
sion of the Union.
Penford Products Co., 366 NLRB No. 74 at p. 9 (2018), quoting
Permanente Medical Group, 332 NLRB 1143, 1144 (2000). An
employer is entitled pursuant to Section 8(c) of the Act to “com-
municate its position in collective bargaining negotiations and in
the course of those negotiations.” Safelite Glass, 283 NLRB
929, 930–931 (1987), quoting United Technologies Corp., 274
NLRB 1069, 1074 (1985), enf. granted and denied in part on
other grounds, 890 F.2d 1573 (10th Cir. 1989); see also Ameri-
can Meat Packing Corp., 301 NLRB 835, 839 (1991), enfd. 315
F.3d 951 (10th Cir. 2003). However, the employer may not at-
tempt to bypass, disparage, or induce the employees to abandon
the union. Id.
All of the criteria articulated in Permanente Medical Group
are satisfied here. The evidence establishes that Arbah commu-
nicated directly with the bargaining unit employees when
Wysocki and Rubio distributed the September 8 letter to them at
the hotel. Furthermore, the Union was excluded from the com-
munication, as there is no dispute that Arbah did not discuss or
provide a copy of the September 8 letter to the Union prior to
doing distributing it to the employees. See RTP Co., 334 NLRB
466, 466–467 (2001) (employer’s failure to consult with the un-
ion prior to issuing a letter to employees regarding bargaining
and contract terms indicates that the employer was engaged in
direct dealing).
In addition, the text of the letter was clearly intended to estab-
lish or change wages, hours and terms and conditions of employ-
ment and to undercut the Union’s role in bargaining. The perti-
nent portion of the September 8 letter states as follows:
To the Union, we are proposing to renegotiate our expired
contract while offering to give all of you a salary increase
of 75 cents per hour in the first year and 50 cents increase
per hour for the second year of the new contract so that we
may share with you our savings from the newly offered
Health Insurance Plan.
(GC Exh. 14.)
The evidence establishes that this specific wage increase offer,
and its underlying rationale, had not been proposed to the Union
before the September 8 letter was distributed to the bargaining
unit employees. The negotiating session preceding the distribu-
tion of the letter on August 30 had primarily addressed the pro-
posed Qual Care health plan, with insurance brokers present to
provide information and respond to the Union’s questions. How-
ever, by the end of this meeting the Union was still requesting
additional information regarding the Qual Care plan in order to
continue negotiations, specifically the total cost per employee
per month, the provider network,26 and information regarding the
to the provider network was not given to the Union until January 2018.
Tr. 509. Finally, in a September 8 e-mail to Bokerman, Lorenc stated
that the “impossibility of compiling a provider list” for the Qual Care
health plan was “explained at length on the 30th” (emphasis added). GC
Exh. 34.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dental and vision plans. Furthermore, while there is some evi-
dence that Lorenc and Maroko discussed wage increases during
a sidebar, nothing in the record establishes that Arbah proposed
using some of the savings from the change in health plans to pro-
vide wage increases to the bargaining unit employees, or made
the specific wage proposal contained in the September 8 letter.27
Nor does the evidence establish that the wage increase pro-
posal discussed in the September 8 letter was conveyed to the
Union in any other context. Bokerman credibly testified that as
of September 8, Arbah had not proposed that any savings ob-
tained by changing health insurance plans be passed along to the
bargaining unit employees in the form of wages increases.
Bokerman’s testimony that Arbah had not informed the Union
regarding the specific wage increases described in the September
8 letter is similarly credible. Both assertions are consistent with
an e-mail exchange between Bokerman and Lorenc that day. In
those e-mails, Bokerman confronted Lorenc regarding the letter
Arbah was distributing to the employees, and Lorenc stated in
his response that Arbah’s most recent offer regarding wage in-
creases involved a 75-cent per hour increase per contract year.
(GC Exh. 34.) Thus, the evidence demonstrates that the wage
proposal described by Wysocki in the September 8 letter had not
been communicated to the Union prior to Wysocki and Rubio’s
distributing the letter to the bargaining unit employees. Nor had
the more general concept of “passing along” any savings ob-
tained via changing health insurance plans to the bargaining unit
employees in wage increases. Therefore, despite the language
“To the Union,” Arbah’s wage proposal in the September 8 letter
was made to engage the bargaining unit employees directly in its
attempt to change health care plans, the primary (and unre-
solved) subject of the preceding bargaining session.
It is also significant that the September 8 letter’s language de-
scribing the new wage proposal is bracketed by statements dis-
paraging the Union. The paragraphs preceding Arbah’s wage
increase proposal inform the employees that, “The Union offi-
cials, to their own benefit, are preventing you from having con-
tinued health insurance coverage,” and contain the unlawful
threat to unilaterally terminate health insurance discussed above.
The two sentences immediately following the wage increase pro-
posal state as follows:
The minor changes to our “old contract” would not affect any-
thing concerning your work environment or condition. The
Union rejected our proposals only to protect their massive fi-
nancial gains from their inefficient Health Insurance offered to
you to preserve their own interest while not caring for your job
security and the health of you and your families.
(GC Exh. 14.) By stating that the Union’s motivations in con-
nection with the health insurance and wage issues being

27 Arbah’s contention that the parties were at impasse as of September
8 is rejected for the reasons discussed infra. R.S. Posthearing Br. at 22.
28 Arbah contends that I erred by refusing to admit Respondent’s Ex-
hibit 5, which consists of correspondence regarding the settlement nego-
tiations in the federal litigation. R.S. Posthearing br. at 37–39. At the
hearing, the parties discussed the authentication and admissibility of the
documents comprising R. Exh. 5, and whether those documents consti-
tuted a complete record of the correspondence between the parties re-
garding the settlement negotiations in the federal case. Tr. 612–635.
negotiated were in fact adverse to those of the bargaining unit
employees, the September 8 letter attempted denigrate the Union
to the employees and undermine the Union’s role in bargaining.
For all of the foregoing reasons, the evidence establishes that
Arbah’s September 8 letter constituted an attempt to deal directly
with the bargaining unit employees, in violation of Sections
8(a)(5) and (1) of the Act.
E. The Alleged Refusal to Meet and Bargain Since October 15,
2017 (Consolidated Complaint ¶¶ 25–27)
The Consolidated Complaint alleges that Arbah has violated
Sections 8(a)(5) and (1) of the Act by refusing to meet and bar-
gain with the Union since October 15 for a new collective bar-
gaining agreement. Section 8(d) of the Act requires that an em-
ployer and a collective bargaining representative meet “at rea-
sonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment.” A re-
fusal to meet and bargain in good faith violates Sections 8(a)(5)
and (1) of the Act.
The record here establishes that Arbah and the Union had their
last negotiating session for a new collective-bargaining agree-
ment on August 30. Subsequently, Bokerman wrote to Ruiz re-
questing dates for additional negotiating sessions on September
27, October 5, October 16, October 27, November 6, November
15, and November 29. Arbah responded only to Bokerman’s
October 5 email, and never provided any additional dates for bar-
gaining.
Arbah contends that collective bargaining continued in the
context of the proceeding Arbah had initiated in the United
States District Court for the District of New Jersey to compel the
implementation of the new Qual Care health plan. (R.S.
Posthearing Br. at 37–39; Tr. 673–676, 691, 707–709.) The ev-
idence establishes that various aspects of the collective bargain-
ing agreement are being addressed during court-ordered settle-
ment discussions in connection with that litigation. However,
Michael Farhi, Esq., Arbah’s attorney in the federal litigation,
represented in correspondence with the Union dated April 11,
2018 that any discussion of the terms of the collective bargaining
agreement “have been settlement negotiations to resolve the
pending lawsuit and have always been framed that way.” (GC
Exh. 38.) Farhi further represented that he and his colleague rep-
resenting Arbah in the lawsuit “have no authority to collectively
bargain for a new agreement.” (GC Exh. 38.) Given this evi-
dence, I find that whatever discussion of the contract’s terms
which occurred in the context of the court-ordered settlement ne-
gotiations have not constituted collective bargaining after Octo-
ber 15.28
For all of the foregoing reasons, I find that since October 15,
Arbah has refused to bargain with the Union in violation of
Because the transcript indicates that I did not rule on the admissibility of
R. Exh. 5, I have reviewed the documents it contains, which include
Farhi’s April 11, 2018 letter, other documents in evidence as GC Exh.
38, and additional correspondence regarding settlement conferences in
the federal case. These other documents do not contradict Farhi’s asser-
tions in his April 11, 2018 letter that he and his colleague have no au-
thority to negotiate a new collective bargaining agreement on Arbah’s
behalf.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 21
Sections 8(a)(5) and (1) of the Act.
F. The Alleged Unilateral Failure to Remit a Health Insurance
Coverage Payment to the Fund on or about October 31, 2017
(Consolidated Complaint ¶¶ 28–29)
The Consolidated Complaint alleges that on or about October
31, Arbah violated Sections 8(a)(5) and (1) of the Act by unilat-
erally failing and refusing to remit a health insurance coverage
payment to the UNITE HERE Health Fund, resulting in the can-
celation of health insurance coverage for the bargaining unit em-
ployees.
Article XIV of the parties’ collective bargaining agreement
requires Arbah to remit contributions to the UNITE HERE
Health Fund on a monthly basis. It is well-settled that the obli-
gation to contribute to benefit funds is a mandatory subject of
bargaining which survives the expiration of a contract. See, e.g.,
Church Square Supermarket, 356 NLRB 1357, 1359 (2011);
Concourse Nursing Home, 328 NLRB 692, 702 (1999). Thus,
such provisions generally cannot be altered without bargaining
to impasse, a loss of majority status on the part of the union, or
a waiver. Concourse Nursing Home, 328 NLRB at 702.
The evidence establishes that on October 20, the Fund sent a
notice to Arbah and the Union stating that Arbah was delinquent
in its contribution to the UNITE HERE Health Fund for the
month of September. (GC Exh. 35.) The Fund’s October 20
letter stated that in order to avoid termination of health coverage
for the bargaining unit employees, Arbah was required to submit
its September report and payment “immediately.” (GC Exh. 35.)
There is no dispute that Arbah did not do so. Therefore, the Fund
terminated coverage for the bargaining unit employees effective
November 1.
The record establishes that the parties did not bargain to im-
passe prior to Arbah’s unilateral failure to remit the September
contribution to the Fund pursuant to the Fund’s October 20 letter.
The Board defines an impasse in bargaining as a time during ne-
gotiations where “the parties are warranted in assuming that fur-
ther bargaining would be futile because both parties believe they
are at the end of their rope.” Mike-Sell’s Potato Chip Co., 360
NLRB 131, 139 (2014), enfd. 807 F.3d 318 (D.C. Cir. 2015),
citing Daycon Products Co., 357 NLRB 1071, 1081 (2011),
enfd. 494 Fed. Appx. 97 (D.C. Cir. 2012). In order to determine
whether a valid impasse exists, the Board considers the parties’
bargaining history, the good faith of the parties in negotiations,
the length of the negotiations, the importance of the issue or is-
sues subject to disagreement, and the parties’ contemporaneous
understanding regarding the state of the negotiations. Id. The
party asserting the existence of a valid impasse bears the burden
of proof on the issue. Mike-Sell’s Potato Chip Co., 360 NLRB
at 139.
The evidence does not establish that the parties were at im-
passe when Arbah unilaterally failed to remit its September con-
tribution to the Fund in late October. The evidence demonstrates
that during the August 30 negotiating session the parties focused
on the Qual Care health plan being proposed by Arbah as an al-
ternate to the UNITE HERE Health Fund coverage, with brokers
making presentations and answering questions regarding the
Qual Care plan’s terms. However, when the August 30 session
ended, certain information requested by the Union had yet to be
provided, specifically the provider network, summary plan de-
scription, information regarding the dental and vision elements
of the Qual Care plan, and the total cost for the Qual Care plan
per employee per month. In her September 8 e-mail to Lorenc
regarding the letter Arbah distributed to the employees that day,
Bokerman renewed the Union’s request for this information
again. It is well-settled that “a finding of valid impasse is pre-
cluded where the employer has failed to supply requested infor-
mation relevant to the core issues separating the parties.” Colo-
rado Symphony Association, 366 NLRB No. 122 at p. 34 (2018),
quoting Caldwell Manufacturing Co., 346 NLRB 1159, 1170
(2006). As discussed above, there is no evidence that any of the
requested information was provided prior to late October, when
Arbah unilaterally failed to remit the required contribution to the
Fund. Because Arbah had not yet provided all of the requested
information necessary in order to evaluate the Qual Care plan,
no valid impasse could have existed as of that time.
Nor do the parties’ interactions at the time evince any contem-
poraneous belief that an impasse existed. When Bokerman
spoke to Lorenc in late August and asked Arbah to delay imple-
mentation of the Qual Care plan for one month, Lorenc did not
indicate that implementation was justified by an impasse be-
tween the parties. Lorenc’s response to Bokerman’s September
8 e-mail discusses Arbah’s outstanding wage proposal, without
any indication that he considered additional negotiations to be
futile. (GC Exh. 34.) As discussed above, Wysocki’s September
8 letter to the employees contains a completely different wage
proposal based upon anticipated savings from the Qual Care
plan, and states “we are proposing to renegotiate our expired
contract,” with nothing indicating that the parties were at im-
passe or that Arbah believed continued bargaining was futile.
When Bokerman wrote to Ruiz on September 27 and October 5
requesting additional dates for negotiating sessions, Ruiz re-
sponded “Mark [Wysocki] is working on our schedules and will
provide you with dates upon our availability by the beginning of
next week.” (GC Exh. 38.) Ruiz did not indicate in any way that
Arbah considered further negotiations to be futile or the parties
to be at impasse. When Bokerman wrote to Ruiz again request-
ing dates for bargaining on October 16 and October 27, Arbah
simply did not respond. Thus, the parties’ interactions from Sep-
tember through late October, when Arbah unilaterally failed to
remit its contribution to the Fund, do not evince a belief that an
impasse existed or that bargaining had become futile.
For all of the foregoing reasons, I find that Arbah has not sat-
isfied its burden to prove that the parties were at impasse as of
late October 2017, when it unilaterally failed to remit its contri-
bution to the UNITE HERE Health Fund for employee health
coverage during the month of September.
Arbah also contends that it did not unilaterally cease contrib-
uting to the UNITE HERE Health Fund because a February 2012
side letter to the 2011–2015 collective-bargaining agreement
permitted it to unilaterally implement an alternative health care
plan. The side letter states, in relevant part:
3. Should the Hotel find a more affordable health care alter-
nate, the parties agree that the Hotel may change providers,
provided such alternative maintains the same if not better level
of current benefits, eligibility threshold, and coverage without
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee contributions.
(R.S. Exh. 2, p. 16.) Arbah argues that the Union waived its right
to bargain regarding the implementation of an alternative health
plan via this language. R.S. Post-Hearing Brief at 32–36. It is
well-settled that such a waiver “is not lightly inferred,” and must
be “clear and unmistakable.” Weyerhaeuser NR Co., 366 NLRB
No. 169 at p. 3 (2018), citing Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 708 (1983); see also Staffco of Brooklyn, LLC, 364
NLRB No. 102 at p. 2 (2016), enfd. 888 F.3d 1297 (D.C. Cir.
2018). The party asserting that a waiver exists bears the burden
to establish that the parties “unequivocally and specifically ex-
press[ed] their mutual intention to permit unilateral action with
respect to a particular employment term, notwithstanding the
statutory duty to bargain that would otherwise apply.” Weyer-
haeuser NR Co., 366 NLRB No. 169 at p. 3, quoting Provena St.
Joseph Medical Center, 350 NLRB 808, 811 (2007).
The evidence does not establish that the Union waived its right
to bargain regarding Arbah’s implementation of alternative
health coverage via the side letter to the collective bargaining
agreement. Paragraph 3 of the side letter did not by its terms
permit Arbah to unilaterally implement alternative health cover-
age, but instead imposed specific limitations on Arbah’s prerog-
ative to change health insurance plans. Pursuant to Paragraph 3
of the side letter, Arbah could change providers only if the alter-
nate health coverage “maintains the same if not better level of
current benefits, eligibility threshold, and coverage without em-
ployee contributions.” In addition, the side letter requires that
“Any and all disputes between the parties regarding the interpre-
tation or application of this Agreement shall be submitted to ar-
bitration pursuant to the CBA.” (R.S. Ex. 2.)h The explicit re-
ferral of disputes regarding Arbah’s potential implementation of
an alternate health plan to the contractual grievance and arbitra-
tion procedure further indicates that the condition on implement-
ing alternative health coverage is mandatory—and also militates
against finding a waiver of the Union’s right to bargain. Com-
pare Omaha World-Herald, 357 NLRB 1870, 1871 (2011) (lan-
guage explicitly excluding changes to retirement plan from the
contract’s grievance and arbitration procedure given plan’s ap-
plicability to non-bargaining unit employees evidence that the
union waived its right to bargain over the issue). I note as well
that Paragraph 1 of the side letter, permitting Arbah to forego
contractually required wage increases if “Fund contribution rates
exceed twenty percent” of the previous year’s rates and provid-
ing for a reopener, states that the parties will in that event “meet
and discuss whether they can mutually agree to modify” the col-
lective bargaining agreement. (R.S. Exh. 2) (emphasis added).
The parties’ requirement that modifications engendered by
changes in Fund contribution rates be mutually agreed upon
evinces an obligation to bargain, and not merely an informative
discussion or explanation of changes to contract terms. See

29 The Fifth Circuit’s refusal to enforce the relevant portion of the
Board’s Order hinged upon the alleged unilateral change and the effec-
tive term of the side letter. The Board had determined that because the
employer’s changes to its program of retiree benefits would not take ef-
fect until the collective bargaining agreement had expired, the waiver
contained in the side letter did not apply even though the change itself
was announced during the contract and side letter’s term. Mississippi
Tesoro Refining & Marketing Co., 360 NLRB 293, 294 (2014)
(language requiring “negotiation” and “bargaining” over, as op-
posed to “discussion” or explanation of, changes to benefit plans,
inconsistent with the waiver of a statutory bargaining obliga-
tion).
Thus, the side letter here is materially distinct from the lan-
guage addressed by the Board and the Fifth Circuit in Mississippi
Power Co., discussed by Arbah in its Post-Hearing Brief at pages
35–36. Mississippi Power Co., 332 NLRB 530 (2000); Missis-
sippi Power Co. v. NLRB, 284 F.3d 605 (2002). In that case, the
medical benefits at issue were provided by the employer, and not
through a jointly-trusteed benefit fund to which the employer
contributed. Mississippi Power Co., 284 F.3d at 608. In a side
letter between the parties, the employer agreed that during the
term of the collective bargaining agreement it would pay a spec-
ified amount or percentage of the cost of each bargaining unit
employee’s coverage, and a specified percentage of any pre-
mium increase. Mississippi Power Co., 332 NLRB at 532; 284
F.3d at 609. The side letter then stated as follows:
The condition of this obligation by the Company will be
an agreement, as evidenced by the Union’s acceptance, that
the matter of insurance coverage or change in the Com-
pany’s contribution toward the premium for insurance cov-
erage of its employees shall not be subject to bargaining or
a request for bargaining by the Union until the expiration of
the [collective bargaining agreement], except by mutual
consent.
Id. Thus, in Mississippi Power Co., the union waived its right to
bargain regarding “the matter of insurance coverage or change
in the Company’s contribution toward the premium” during the
term of the parties’ collective bargaining agreement.29 Missis-
sippi Power Co., 284 F.3d at 620. Here, by contrast, the explicit
condition placed upon Arbah’s right to implement alternate
health coverage, the requirement of “mutual” agreement with re-
spect to any contract modification as a result of changes in Fund
contribution rates, and the incorporation of the contract’s griev-
ance and arbitration procedure as a dispute resolution mecha-
nism preclude finding a comprehensive waiver of the Union’s
right to bargain regarding the implementation of alternate health
coverage.
In addition, I find that the February 2012 side letter was effec-
tively superseded by the parties’ January 27, 2017 agreement,
which requires Arbah to contribute to the Fund at rates the Fund
would subsequently determine. The February 2012 side letter
addressed only the parties’ agreement with respect to issues aris-
ing from the ambiguity regarding Fund contribution rates for the
contract years of 2013 and 2014, as set forth in its recitations.30
Thus, the February 2012 side letter sets forth an agreement re-
garding the parties’ prerogatives in light of potential changes in
Fund contribution rates for 2013 and 2014, specifically with
Power Co., 332 NLRB at 532. The Fifth Circuit, by contrast, found that
the waiver was effective during the term of the contract regardless of
when the changes the employer intended to implement were to take ef-
fect. Mississippi Power Co., 284 F.3d at 618–620.
30 The February 2012 Agreement states, “WHEREAS, UNITE HERE
HEALTH (the “Fund”) has yet to release its stated contribution rates for
2013 and 2014.” R.S. Exh. 2.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 23
respect to wage increases. It does not generally address Fund
contributions, wage increases, or the parties’ obligations in gen-
eral after that time. The January 27 agreement, on the other
hand, addresses delinquent contributions to the Fund for 2016
and in the future. The first paragraph of the January 27 agree-
ment discusses the payment of delinquent contributions to the
Fund for the calendar year 2016. (GC Exh. 12.) The second
paragraph states, “The Hotel agrees to make contributions to the
Fund pursuant to the terms of the expired CBA at rates deter-
mined by the Fund in accordance therewith.” Id. Therefore,
based upon the language of the respective agreements, I find that
the January 27 agreement superseded the February 2012 side let-
ter, and obligated Arbah to make contributions to the Fund at the
rates the Fund determined, in the manner specified in Article
XIV of the collective bargaining agreement.
Finally, Arbah argues that Wysocki justifiably believed based
on past experience that despite the UNITE HERE Health Fund’s
October 20 letter regarding the termination of coverage, cover-
age would somehow continue until the latest delinquency was
resolved. (R.S. Posthearing Br. at 36–37.) Arbah claims that as
a result Wysocki was not aware that coverage through the Fund
had terminated until the first day of the instant hearing. Id. How-
ever, the language of the October 20 letter regarding a continued
failure to pay the September contribution is clear:
Additionally, if the Fund does not receive the work report or
payment for September 2017, the Employer’s account will be
terminated effective October 31, 2017. Please note if the ac-
count is terminated, the employees will no longer be eligible
for benefits after date of termination. The Fund’s Trustees have
determined that if the account is terminated for non-payment,
it will not be eligible for reinstatement until the Fund has re-
ceived an acceptable fully executed agreement. As a result, in
order to avoid termination and a gap in your employees’ cov-
erage, you must submit your September 2017 report and pay-
ment immediately.
(GC Exh. 35) (emphasis in original).31 Given the language of
the Fund’s October 20 letter, Arbah’s contention that past events
somehow lulled Wysocki into believing that Arbah’s failure to
remit its delinquent September payment would have no conse-
quences is untenable. Furthermore, Lorenc had asserted in past
correspondence with the Union that Arbah read the Fund’s state-
ments in previous delinquency letters as portending the immi-
nent termination of health insurance coverage for the bargaining
unit employees and had acted in accordance with such an inter-
pretation by attempting to obtain alternate health coverage. See
General Counsel Exhibit 28, 32.
For all of the foregoing reasons, the evidence establishes that
Arbah violated Sections 8(a)(5) and (1) of the Act by unilaterally
failing to make a contribution to the UNITE HERE Health Fund
in late October 2017, pursuant to the Fund’s October 20 letter.
The evidence establishes that as a result the Fund terminated
coverage for the bargaining unit employees as of November 1,
2017.

31 In addition, Article XIV, par. 5 of the parties’ collective bargaining
agreement states, “The parties agree and understand that, if the appropri-
ate welfare contribution rates are not paid, the Trustees of the Fund may
CONCLUSIONS OF LAW
1. Arbah violated Section 8(a)(1) of the Act by threatening to
unilaterally discontinue the bargaining unit employees’ negoti-
ated health insurance benefit coverage if the employees did not
sign up for Respondent’s new health insurance coverage in its
letter dated September 8, 2017.
2. Arbah violated Sections 8(a)(3) and (1) of the Act by dis-
charging Marie Dufort on April 7, 2017, in retaliation for
Dufort’s support for and activities on behalf of the Union, and to
discourage employees from engaging in these activities.
3. Arbah violated Sections 8(a)(5) and (1) of the Act by uni-
laterally denying the Union’s bargaining representative George
Padilla access to the facility on or about August 24, 2017.
4. Arbah violated Sections 8(a)(5) and (1) of the Act by by-
passing the Union and dealing directly with the bargaining unit
employees when it issued a letter on September 8, 2017 threat-
ening to discontinue the employees’ negotiated health insurance
benefit coverage.
5. Arbah violated Sections 8(a)(5) and (1) of the Act by fail-
ing and refusing to meet and bargain with the Union as the ex-
clusive collective bargaining representative of the bargaining
unit employees since October 15, 2017.
6. Arbah violated Sections 8(a)(5) and (1) of the Act by uni-
laterally failing and refusing to remit a health insurance coverage
payment to the UNITE HERE Health Fund on or about October
31, 2017.
7. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Arbah has engaged in certain unfair labor
practices, I shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of
the Act.
Having found that Arbah discharged Marie Dufort in retalia-
tion for her union support and activities, and to discourage em-
ployees from engaging in these activities, I shall order Respond-
ent to offer Dufort reinstatement and make her whole for any loss
of earnings and other benefits. Backpay shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Arbah shall also compen-
sate Dufort for her search-for-work and interim employment ex-
penses, likewise with interest compounded daily, regardless of
whether those expenses exceed interim earnings, pursuant to
King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant
part, 859 F.3d 23 (D.C. Cir. 2017). Arbah shall also compensate
Dufort for the adverse tax consequences, if any, or receiving a
lump-sum backpay award, and file a report with the Regional
Director allocating the backpay award to the appropriate calen-
dar year, pursuant to AdvoServ of New Jersey, Inc., 363 NLRB
No. 143 (2016). Finally, Arbah must remove any reference in its
files to Dufort’s unlawful discharge and notify Dufort in writing
eliminate benefits to otherwise eligible participants and terminate the
Employer’s participation pursuant to paragraph I.I. of the Fund’s Mini-
mum Standards” (emphasis added).
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that this has been done and that the discharge will not be used
against her in any way.
Having found that Arbah unlawfully unilaterally denied union
representative George Padilla access to its premises, I shall order
Respondent to rescind that unilateral change, reinstate the status
quo ante and to recognize and deal with Padilla as a union repre-
sentative for the bargaining unit employees. Having found that
Arbah unilaterally failed to remit its payment to the UNITE
HERE Health Fund for the bargaining unit employees’ Septem-
ber 2017 health insurance coverage, I shall order Respondent to
make such payment, including any additional amounts due to the
Funds pursuant to Merryweather Optical Co., 240 NLRB 1213,
1216 (1979). I shall further order Respondent to reimburse bar-
gaining unit employees for any expenses resulting from its fail-
ure to make such payment, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891, fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981). Such amounts are to be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987).
Arbah is further ordered, upon request, to bargain in good faith
with the New York Hotel and Motel Trades Council, AFL–CIO,
as the exclusive collective bargaining representative of the fol-
lowing appropriate unit of employees:
All room attendants, housemen, porters, linen room, drivers,
maintenance, cooks, waiter, waitresses, busboys and dishwash-
ers excluding all supervisory personnel.
Arbah shall put into writing and sign any agreement reached re-
garding the terms and conditions of employment for the bargain-
ing unit employees.
Arbah will also be ordered to post an appropriate information
notice, as described in the attached appendix. This notice shall
be posted in Arbah’s facility or wherever notices to employees
are regularly posted for 60 days without anything obscuring or
defacing its contents. In addition to the physical posting of paper
notices, notices shall be distributed electronically, such as by e-
mail, posting on a intranet or internet site, and/or other electronic
means, if Arbah customarily communicates with its employees
in such a manner. In the event that, during the pendency of these
proceedings, Arbah has gone out of business or closed the facil-
ity involved herein, Arbah shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former
employees employed by Arbah at any time since April 1, 2017.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended32
ORDER
The Respondent, Arbah Hotel Corp. d/b/a Meadowlands View
Hotel, North Bergen, New Jersey, its officers, agents, successors
and assigns, shall
1. Cease and desist from:
(a) Threatening to unilaterally discontinue the bargaining unit
employees’ negotiated health insurance benefit coverage if the
employees do not sign up for Respondent’s new health insurance

32 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
coverage.
(b) Discharging employees in retaliation for their support for
and activities on behalf of New York Hotel and Motel Trades
Council, AFL–CIO, or in order to discourage employees from
engaging in such activities.
(c) Refusing to meet and bargain in good faith with the Union
as the exclusive collective bargaining representative of the em-
ployees in the following bargaining unit:
All room attendants, housemen, porters, linen room, drivers,
maintenance, cooks, waiter, waitresses, busboys and dishwash-
ers excluding all supervisory personnel.
(d) Unilaterally denying the Union’s bargaining representa-
tive access to the facility.
(e) Bypassing the Union and dealing directly with the bar-
gaining unit employees.
(f) Unilaterally failing and refusing to remit payment for the
bargaining unit employees’ health insurance coverage for Sep-
tember 2017 to the UNITE HERE Health Fund.
(g) 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 effectu-
ate the policies of the Act.
(a) Within 14 days of the date of this Order, offer Marie
Dufort full reinstatement to her former position, or if that posi-
tion no longer exists to a substantially equivalent position, with-
out prejudice to her seniority or any other rights or privileges
previously enjoyed.
(b) Make Dufort whole for any loss of earnings and other
benefits suffered as a result of her unlawful discharge, in the
manner set forth in the remedy section above.
(c) Make Dufort whole for her reasonable search-for-work
and interim employment expenses, in the manner set forth in the
remedy section above.
(d) Compensate Dufort for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file with the
Regional Director for Region 22, within 21 days of the of the
date that the amount of backpay is fixed by agreement or Board
order, a report allocating the backpay award to the appropriate
calendar year.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of the Board’s order.
(f) Within 14 days, remove from its files any reference to the
discharge of Marie Dufort, and, within 3 days thereafter, notify
Dufort in writing that this has been done and that the discharge
will not be used against her in any way.
(g) Rescind and restore the status quo ante with respect to the
unlawful unilateral change of denying union representative
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW HOTEL 25
George Padilla access to Arbah’s facility and recognize and deal
with Padilla as a union representative for the bargaining unit em-
ployees.
(h) Make the contribution for the bargaining unit employees’
health coverage for September 2017, including any additional
amounts due, to the UNITE HERE Health Fund, which Arbah
would have made but for its unlawful unilateral refusal to do so.
(i) Upon request, meet and bargain in good faith with New
York Hotel and Motel Trades Council, AFL–CIO as the exclu-
sive collective bargaining representative of the following appro-
priate bargaining unit of employees, and put into writing and sign
any agreement reached regarding the terms and conditions of
employment of the bargaining unit employees:
All room attendants, housemen, porters, linen room, drivers,
maintenance, cooks, waiter, waitresses, busboys and dishwash-
ers excluding all supervisory personnel.
(j) Within 14 days after service by the Region, post at its fa-
cility in North Bergen, New Jersey copies of the attached notice
marked “Appendix.”33 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
Arbah’s authorized representative, shall be posted by Arbah and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the no-
tices shall be distributed electronically, such as by email, posting
on an intranet or an internet site, and/or other electronic means,
if Arbah customarily communicates with its employees by such
means. Reasonable steps shall be taken by Arbah to ensure that
the notices are not altered, defaced, or covered by any other ma-
terial. In the event that, during the pendency of these proceed-
ings, Arbah has gone out of business or closed the facility, Arbah
shall duplicate and mail, at its own expense, a copy of the notice
to all current and former employees employed by Arbah at the
North Bergen, New Jersey facility at any time since April 1,
2017.
(k) Within 21 days after service by the Region, file with the
Regional Director for Region 22 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

33 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “posted Pursuant to a Judgment of the
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten to unilaterally discontinue your negoti-
ated health insurance benefit coverage if you did not sign up for
our new health insurance coverage.
WE WILL NOT discharge you for supporting a union or engag-
ing in union activity.
WE WILL NOT unilaterally deny union representative George
Padilla access to the hotel without notifying the Union and giv-
ing it the opportunity to bargain.
WE WILL NOT bypass the Union and deal directly with you
concerning changes in your wages, hours, and working condi-
tions.
WE WILL NOT fail or refuse to bargain in good faith with New
York Hotel and Motel Trades Council, AFL-CIO as the exclu-
sive collective bargaining representative of the following appro-
priate bargaining unit of employees:
All room attendants, housemen, porters, linen room, drivers,
maintenance, cooks, waiter, waitresses, busboys and dishwash-
ers excluding all supervisory personnel.
WE WILL NOT fail or refuse to timely make any required con-
tributions to the UNITE HERE Health Fund on behalf of eligible
unit employees without bargaining with the Union in good faith
to an agreement or bona fide impasse.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL offer Marie Dufort full reinstatement to her former
position, or if that position no longer exists to a substantially
equivalent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make Marie Dufort whole for any loss of earnings
and other benefits suffered as a result of her unlawful discharge,
less any net interim earnings, plus interest.
WE WILL make Marie Dufort whole for her reasonable search-
for-work and interim employment expenses, regardless of
whether those expenses exceed interim earnings, and consequen-
tial economic harm she may have incurred, plus interest.
WE WILL compensate Marie Dufort for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and file
with the Regional Director for Region 22, within 21 days of the
of the date that the amount of backpay is fixed by agreement or
Board order, a report allocating the backpay award to the appro-
priate calendar year.
WE WILL within 14 days, remove from our files any reference
to the discharge of Marie Dufort, and WE WILL, within 3 days
thereafter, notify Dufort in writing that this has been done and
that the discharge will not be used against her in any way.
WE WILL recognize and deal with George Padilla as a union
representative for the bargaining unit employees.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL make the required contribution to the UNITE HERE
Health Fund for the bargaining unit employees’ health insurance
coverage for September 2017, including any additional amounts
due.
WE WILL, upon request, meet and bargain in good faith with
New York Hotel and Motel Trades Council, AFL–CIO as the
exclusive collective bargaining representative of the following
appropriate bargaining unit of employees, and put into writing
and sign any agreement reached regarding the terms and condi-
tions of employment of the bargaining unit employees:
All room attendants, housemen, porters, linen room, drivers,
maintenance, cooks, waiter, waitresses, busboys and dishwash-
ers excluding all supervisory personnel.
ARBAH HOTEL CORP. D/B/A MEADOWLANDS VIEW
HOTEL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/22-CA-197658 or by using the QR code be-
low. 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.