Columbia Sussex Corporation d/b/a Hilton Corporation

National Labor Relations Board - Administrative Judge Opinions

Nov 14, 2019

19-CA-215741 (N.L.R.B. Nov. 14, 2019)

JD(SF)–39–19
Anchorage, AK
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
CP ANCHORAGE HOTEL 2, LLC
d/b/a ANCHORAGE HILTON
and Case 19–CA–215741
UNITE HERE! LOCAL 878, AFL–CIO
Carolyn McConnell, Esq., for the General Counsel.
Douglas S. Parker, Renea I. Saade and Sean Halloran, Esqs.
(Littler Mendelson P.C.), for the Respondent.
Laura Ewan, Esq.,
(Barnard Iglitzin and LaVitt, LLP)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case on February 19–22
and March 1, 2019, in Anchorage, Alaska. Based on a charge filed by UNITE HERE! Local
878, AFL–CIO (Charging Party, the Union or Local 878) in the above-captioned case, the
Regional Director for Region 19 issued a complaint on October 30, 2018 (the complaint). The
General Counsel alleges that Respondent CP Anchorage Hotel 2, LLC d/b/a Hilton Anchorage
(Respondent or the Hotel)1 violated the National Labor Relations Act (the Act) by discharging
union adherent Noberto “Bill” Rosario (Rosario) in retaliation for his union and other protected
conduct. As set forth below, I find no merit to the complaint and recommend that it be
dismissed.
At trial, all parties were afforded the right to call, examine, and cross-examine witnesses, to
present any relevant documentary evidence, to argue their respective legal positions orally, and
to file post-hearing briefs. On April 22, 2019, post-hearing briefs were filed by the parties and

1 At hearing, the parties stipulated as to Respondent’s correct name.
JD(SF)–39–19
2
have been carefully considered.2 Accordingly, based upon the entire record herein, including the
post-hearing briefs and my observation of the credibility of the witnesses, I make the following
FINDINGS OF FACT
5
I. JURISDICTION
Respondent admits, and I find, that it is a Delaware limited liability company with an office
and place of business in Anchorage, Alaska, where it is engaged in the business of operating a
hotel known as the Hilton Anchorage. In conducting its business operations during the 12-month 10
period immediately preceding the issuance of the complaint, Respondent derived gross revenues
in excess of $500,000. During the same time period, Respondent purchased and received at its
Anchorage hotel property goods valued in excess of $50,000 directly from points outside the
State of Alaska. Accordingly, I find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. Respondent also admits, and I find, 15
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce and that the National Labor
Relations Board (the Board) has jurisdiction of this case, pursuant to Section 10(a) of the Act.
20
II. THE ALLEGED UNFAIR LABOR PRACTICES
On October 9, 2017, Rosario was discharged following an investigation into his response to
discovering the presence of mold in two hotel guestrooms.3 As described in more detail herein,
the parties agree that, in each room, after discovering the mold, he photographed it, “cleaned” it, 25
glued wallpaper over it and sent the images to the Union. They disagree, however, as to whether
he was instructed by a Respondent agent or supervisor to cover up the mold and whether he
reported its presence to Hotel management. As such, witness credibility was a central feature of
this case.
30
I based my credibility resolutions on consideration of a witness’ opportunity to be familiar
with the subjects covered by the testimony given; established or admitted facts; the impact of
bias on the witness’ testimony; the quality of the witness’ recollection; testimonial consistency;
the presence or absence of corroboration; the strength of rebuttal evidence, if any; the weight of
the evidence and witness demeanor while testifying. My credibility findings, which are 35
generally incorporated into the findings of fact set forth herein, dictate that Rosario’s discharge
did not violate the Act as alleged.

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh. __” for General
Counsel’s Exhibit; “R. Exh. __” for Respondent’s Exhibit; “CP Exh. __” for Charging Party’s Exhibit
and “Jt. Exh. __” for Joint Exhibit. On April 2, 2019, the parties filed a joint motion to correct the
placement of certain exhibits in the record. That motion is hereby granted, meaning that R. Exhs. 2–25,
26(a), 28–51 and 53 and GC Exhs. 1–30, 31(a), 34–36 and 38–40 which were admitted, should be
deemed included in the admitted exhibit file, and that R. Exhs. 1, 26(b) and 27 and GC Exhs. 31(b), 32,
33 and 37, which were rejected, should be deemed included in the rejected exhibit file.
3 Unless otherwise indicated, all dates herein refer to the year 2017.
JD(SF)–39–19
3
A. Factual Background
At the time of his discharge, Rosario was a 10-year Hotel employee represented by Local
878. He worked as a maintenance technician, which involved performing general repairs
throughout the Hotel, such as addressing plumbing, heating and air-conditioning issues. 5
Rosario was considered talented at his job; his direct supervisor, Chief Engineer Bill Best (Best)
often praised his work and referred to him as “my magician.” Rosario was nominated for
employee of the month on four occasions and actually received the award in 2016. (Tr. 250,
252–253, 256, 262–263, 272, 311, 382–384; GC Exhs. 9, 10.)
10
For a decade, Respondent and the Union have failed to reach a successor agreement to an
expired collective-bargaining agreement covering Hotel employees, and the Union has, during
that time, engaged in a boycott and informational campaign against the Hotel. Rosario was an
open union supporter. He wore a union button to work each day, attended bargaining sessions
and union rallies observed by management and signed several prounion petitions. While in the 15
presence of managers in an employee breakroom, he handed out buttons to his coworkers, spoke
with union organizers and encouraged his coworkers to attend negotiations. (Tr. 128–129, 131–
133, 135, 264–270, 326–327, 392–393, 396–397, 426–427, 431–423, 815, 1034; GC Exhs. 25,
27–30.)
20
1. Mold as a health and safety issue at the Hotel
Mold resulting from earthquake damage, including broken water lines, presents a health and
safety hazard in Anchorage hotels, such as Respondent’s. In early 2014, Rosario began reporting
problems with working conditions at the Hotel to the Union, including mold. Between 2014 25
and his discharge, he also photographed these working conditions for the Union, providing it
with approximately 30 images, 20 of which showed instances of mold. The Union posted
Rosario’s pictures on its website dedicated to the Hotel’s mold problem, aptly named
“hiltonanchoragemoldreport.org”. (Tr. 124–125, 450–452, 709; Jt. Exh. 6.)
30
In May 2014, the Union assisted unit employees in filing complaints with OSHA about mold
in the Hotel, which resulted in the agency conducting three surprise inspections during the
remainder of that calendar year. Beginning in 2015, the Union held protests in front of the Hotel
on various issues, including health and safety, with four or five demonstrations devoted solely to
the subject of mold-related problems. The Union also served the Hotel with several information 35
requests related to mold conditions at the property. (Tr. 393–396, 412–415, 709, 731–732; GC
Exhs. 13–22.)
Since at least 2015, the Hotel’s upper management appears to have been aware that Rosario
was responsible for supplying the Union with mold photos. Bill Tokman (Tokman), who served 40
as General Manager until September 2016, made it known that he suspected Rosario of being the
“mole” responsible for the images on the Union’s website, and did so in the presence of Director
of Operations Soham Bhattcharya (Bhattcharya), who would later take over as General Manager.
In November 2015, Tokman even considered denying a vacation request submitted by Rosario
with the aim of declaring him a “no call/no show” and discharging him. This, he told managers45
JD(SF)–39–19
4
not including Bhattcharya) would “stop the mole.”4 He never carried out the plan, instead
approving Rosario’s vacation; later, however, he expressed regret at having done so. In February
2016, Tokman referred to Rosario as a “troublemaker” and commented, “[w]e should’ve let him
go when we had the chance.” (Tr. 68–77, 79, 565–567.)
5
In 2017, the Union lobbied the Anchorage Assembly (the city’s governing body) to enact
legislation specifically governing mold in the city’s hotels, including providing whistleblower
protection for individual employees who reported hotel mold. This effort involved a public
assembly meeting on September 12 and a work session (in which union representatives spoke in
favor of the draft bill) on October 6. Two of Respondent’s represented employees, but not 10
Rosario, gave testimony in support of the legislation. The mold ordinance was voted into law on
October 10. (Tr. 422–423, 494–495; Jt. Exh. 6.)
2. Respondent’s mold remediation policies
15
Respondent maintains no written policy on employee responsibilities with respect to mold,
but numerous management witnesses, as well as two current-employee witnesses and Rosario
himself, testified that the established protocol was that, upon discovering any substance
suspected of being mold, employees were expected to report immediately to Chief Engineer
Best, or, in his absence, their direct supervisor. According to the Hotel’s former Director of 20
Human Resources, employees were explicitly instructed in official training sessions that they
were not themselves to touch mold or attempt to clean it up. (Tr. 78, 279, 568–569, 578, 693–
694, 920, 1027.)
After Best (or another supervisor) received a report of mold in a guest room, the room would 25
be placed “out of order,” meaning that it could not be let out to a guest. Individual maintenance
technicians, such as Rosario, also had the individual authority to designate a room “out of order”
by informing the front desk of the room’s number. After a room was so designated, upper
management would arrange for an outside contractor specializing in mold abatement to inspect
and test the substance. Upon confirmation that it was mold, Best would then put a “hard block” 30
on the room, deactivating key card access for Hotel employees such as housekeeping and
maintenance.5 Rosario regularly followed this policy; on several occasions, he personally
designated a room “out of order” for suspected mold. (Tr. 273, 345, 347–348, 627, 727, 921,
923–924.)
35

4 I credit the testimony of former Managers Andrew Stansfield and Janine Babusch as to these
remarks by Tokman; they each testified in a forthright manner without embellishment. Nor do I find their
testimony impeached by business records offered by Respondent, which appears to demonstrate only that
Tokman was considered denying Rosario’s vacation retroactively after it had already begun.
5 I decline to make an inference, as urged by the General Counsel, that Respondent did not
consistently enforce its policy of hard blocking rooms with reported mold. While witnesses’ recollection
of the number of blocked rooms was inconsistent with certain figures Respondent reported to the Union,
this is not a sufficient basis on which to base an inference, especially considering that more definitive
evidence on the issue could have been adduced on the record.
JD(SF)–39–19
5
3. Events of August 19, 2017
The conduct at the heart of this case took place in two hotel guestrooms on August 19th. The
sole witness who testified as to these events is Rosario himself. According to him, he was
requested by a female “room supervisor” to replace peeling wallpaper in rooms 534 and 826. 5
Room supervisors (who are also called “housekeeping supervisors” and/or “room inspectors”)
are responsible for relaying work orders from managers, individual housekeepers or guests
themselves to maintenance technicians on duty. While maintenance technicians are expected to
respond to all work orders as relayed by the room supervisors, multiple witnesses testified that
room supervisors do not direct the maintenance technicians as to how to perform specific repairs. 10
(Tr. 263–264, 277–278, 287–288, 291–293, 298, 543–548, 842, 844, 965.)
Rosario testified that, on August 19, a room supervisor summoned him to room 826, where
she showed him loose wallpaper behind a toilet. According to him, she asked him to reattach it,
explaining that the room was a “CRM.” This acronym, which stands for “Customer Really 15
Matters,” denotes a priority repair for a room assigned to a Hilton Honors member or some other
high-profile guest. Then, according to Rosario, she showed him room 534 and again requested
that he reattach some wallpaper that had separated from the sheetrock. When he was originally
shown the detached wallpaper in each room, Rosario testified, he did not see mold behind it, nor
did the room supervisor indicate that there was mold underneath that should be covered up. At 20
hearing, Rosario could not recall the name of the room supervisor in question, and the General
Counsel failed to present the testimony of any room supervisor who had interacted with him in
either of the rooms in question. (Tr. 291–292, 326–327, 887–888.)
Reattaching peeling wallpaper with spray glue is not an uncommon task for a maintenance 25
technician and takes only a few minutes; at the time he entered the rooms, Rosario had spray
glue with him, but inexplicably did not reattach the wallpaper at that time. Instead, he testified,
he left and returned to the rooms only after responded to all of the previous work orders he had
received that day. According to him, this is when he noticed that there was mold underneath the
wallpaper, photographed it with his smart phone, “cleaned” it with a product called “ZEP” and 30
reglued the wallpaper. Although he was admittedly concerned about the presence of the mold,
he did not alert the room supervisor who had initially summoned him to the rooms, the Director
of Housekeeping or any other manager. It is undisputed that Best was not working on August
19. (Tr. 264, 289, 328–329; GC Exh. 3.)
35
Despite acknowledging that he was aware of—and in fact had historically followed—
Respondent’s established mold reporting protocol, Rosario attempted at hearing to develop a
counternarrative that legitimized his failure to comply with it on August 19. This testimony,
however, was disjointed to the point of incoherence. In addition to not explaining why he left a
simple, high-priority repair until he had completed other work orders, only to return once the 40
room supervisor was gone, he also admitted that, prior to this occasion, he had never glued
wallpaper to cover up mold at the Hotel, and further admitted that nobody explicitly instructed
him to glue wallpaper over mold in rooms 534 and 826. Nonetheless, when asked point-blank
why he had done just that, he responded, “[b]ecause that’s what they asked me to do. They gave
me the order, and that’s what I did.” Without identifying who specifically issued this order, he 45
was markedly evasive, claiming “when there’s mold, I’m supposed to clean it and then glue it
JD(SF)–39–19
6
back up, and that’s what I did, what they told me I should do.” (Tr. 287–288, 293–295, 309–
310, 327–329.)
Next, Rosario cast around for a wider rationale for his conduct, claiming that, at some prior
occasion, he had been instructed to use ZEP to remove mold. Pressed, however, he admitted that 5
he had never been explicitly instructed to use this product on walls, but rather to “touch up”
mildew on tiles. He then claimed that he and other unnamed maintenance technicians
nonetheless had a long-standing practice of using ZEP to clean up mold on walls, but this
testimony was contradicted by other witnesses, including the only other maintenance technician
to testify, Clark. Finally, Rosario also claimed that, at some point in 2017, former Director of 10
Housekeeping Ivan Tellis (Tellis) had ordered him to cover up mold in some manner. This
testimony, however, was contradicted by Tellis’ far more credible denial. (Tr. 279–280, 320–
321, 632, 858–859, 920.)
I cannot credit Rosario on the various means by which he had supposedly been empowered 15
to ignore Respondent’s established mold protocol. Apart from the inherent implausibility of his
inability to recall the identity of the only witness who could corroborate his account, his
demeanor itself strongly detracted from his credibility. He appeared to struggle through this
testimony, his noticeably distraught comportment suggesting that he had not convinced himself
of his own story.20
4. Rosario’s subsequent conduct
On August 22, Rosario sent images of the mold he had concealed to Local 878 organizer,
Dayra Valades (Valades). Two days later, pursuant to the Union’s internal verification policy,25
Valades questioned him about the circumstances in which he took them. I credit Valades’
account of this conversation; she presented as a no-nonsense witness with a sharp memory of
events. According to her, Rosario assured her that “somebody in the housekeeping department”
had explicitly asked him to clean up mold on the walls and cover it up with wallpaper, and that
he had complied with this request only after speaking with Best by telephone to get “direction.” 30
(Tr. 120, 135–136, 142–143, 198–200, 287, 298, 363; GC Exhs. 4, 5.)
At hearing, Rosario claimed not to recall the specifics of what he discussed with Valades and
testified that, rather than having called Best for guidance before reattaching the wallpaper, he
actually told him about the rooms three days later, on August 22, when both men were next 35
scheduled to work. According to him, he and Best joked about the situation at that point and
agreed that “this is what they want, this is what they get.” Best, for his part, testified that
Rosario never brought mold in either room to his attention. I credit Best in this regard. His
overall demeanor suggested to me that he was genuinely uneasy giving testimony obviously
adverse to Rosario, his formerly coveted “magician,” but was nonetheless committed to telling 40
the truth. (Tr. 296–297, 363, 629.)
JD(SF)–39–19
7
5. The Union’s publication of Rosario’s photographs and Respondent’s initial investigation
On September 26, the Hotel’s General Manager Bhattcharya received an email forwarded by
a Regional Vice President of Respondent’s parent company. The original email, written by the
general manager of another Hilton property, forwarded an email he had received from a union 5
email account. That email, dated September 25, stated in part:
Subject: New Mold in rooms 534 & 826
More bad news. New instances of mold were found at the 10
“Unacceptable” Hilton Anchorage’s Room 534 and 826 in August
2017. See pictures here and here.
Hyperlinks attached to the underscored terms took Bhattcharya to Rosario’s pictures of the
rooms in question posted on the Union’s hiltonanchoragemoldreport.org website. (R. Exh. 28; 15
Tr. 686–687, 759–762.)
Bhattcharya immediately referenced a list he kept of guestrooms in which mold had been
remediated and confirmed that neither 826 or 534 was included. He then contacted Chief
Engineer Best, Director of Housekeeping Tellis and Assistant General Manager Steve Rader20
(Rader), who each denied being aware of mold having been discovered in either room.
Bhattcharya voiced his suspicion to Best that Rosario was responsible for the images; then, the
two, accompanied by Tellis and Rader, inspected room 534. After pulling back wallpaper in the
spot indicated by the website photograph, they discovered mold on the sheetrock underneath.
(Because room 826 was occupied at the time, they waited until the following day and then 25
discovered the mold Rosario had photographed and covered up in that room). (Tr. 628, 642–
642, 761–765, 885, 894–896.)
After inspecting room 534, the managers conducted a “key interrogation” on the two rooms
for the month of August; this involves downloading a log of card key entries into each room.6 30
The key interrogatory logs showed that two maintenance employees—Rosario and Clark—had
entered each of the rooms in August. Then, Rader, who had downloaded Rosario’s pictures onto
his smartphone, noticed that the picture of room 534 had a “timestamp” of 12:46 p.m. on August
19, which had been revealed by his phone’s photograph application.7 Rader then downloaded
both pictures to his desktop computer and was able to determine by examining their underlying 35
metadata that each had been taken with a particular Android smartphone model known as an
“HTC Desire 610.”
The managers next compared the timestamp of the room 534 photo to the room’s key
interrogatory log, which indicated that several employees had been in the room on August 19, 40
including Rosario, housekeeping employees Maria DeCruz (DeCruz) and Anita Vasilevska

6 Respondent’s Director of Security Charles Selden testified that running such reports was a
relatively common occurrence; prior to Rosario, at least one employee had been discharged based on
information discerned from such a report. (Tr. 830–831, 1055.)
7 While Rader testified that the 12:46 p.m. photograph was of room 826, the documentary evidence
indicates that the room in question was in fact room 534. I attach no significance to this misstatement, as
I generally found Rader to be a forthright witness. (Tr. 899–900.)
JD(SF)–39–19
8
(Vasilevska), a third, unknown housekeeping employee and maintenance technician Clark.
Unlike the other employees, however, Rosario had entered the room 3–4 minutes before the
picture had been taken.8 In order to confirm that Rosario was, in fact, the photographer, the
managers devised a scheme whereby Best ordered Rosario to photograph a pipe in the Hotel’s
basement and send it to him. Rosario complied, and the metadata embedded in the image he sent 5
indicated that it had been taken with an HTC Desire 610. (Tr. 767–768, 787, 789–790, 898–905,
959, 1055; R. Exhs. 29, 30, 31, 32, 49.)
6. Rosario’s October 9 investigatory interview
10
On October 9, Rader contacted Business Representative and Vice-President of Local 878
Daniel Esparza (Esparza) and requested that he attend a meeting regarding Rosario later that day.
The approximately 2-week delay in scheduling the meeting was occasioned by Rader’s absence
from work for an out-of-town management training program. (Tr. 382, 454–455, 885, 945.)
15
The meeting was attended by Bhattacharya, Rader, Valades, Esparza and Rosario himself.9
Rader took the lead, stating that they were there to discuss misconduct that might carry
consequences; he then presented Rosario with the photographs and asked if he had taken them.
Rosario denied that he had. Rader asked him what type of phone he used, and Rosario
responded that it was an HTC. Esparza jumped in, questioning whether management had a 20
problem with someone taking the pictures in question, which Bhattacharya and Rader
immediately denied. Rader then stated that he had extracted metadata from the images, which
showed him what type of device took the images, as well as the time and date it was taken.
Rader stated that Rosario had failed to report the mold when he photographed it, and that the
Hotel was therefore unable to address it. He then asked Rosario if he was familiar with the 25
protocol for dealing with mold, and Rosario responded that he knew that he was not to “even
look at it” but rather report it to Best. Esparza continued to run interference, challenging whether
management was taking issue with employees documenting their working conditions; again,
Bhattacharya insisted that this was not the issue and added that employees were free to take
photographs at work and share them as they wished. 30
Rader then explained that management had compared the key interrogatory log to the
time/date stamp on one of the images and confirmed that Rosario was the only maintenance
employee who had been in the room at the time the photos were taken; he again asked Rosario if
he had taken the pictures. Rosario again said no, but then added that sometimes he reported 35
mold to Best, who failed to follow up. After Bhattacharya pressed him, Rosario stated that he
now remembered the rooms and that he had reported them to Best by telephone. He then

8 Oddly, the log for room 826 indicates that Rosario was present in that room on August 12, 18 and
31, but not August 19, as he testified. This went unaddressed by the parties but further undercuts his
claim that his actions in that room occurred as a result of a last-minute order to ready a room for a
“CRM.” (See R. Exh. 30.)
9 My recitation of the course of this meeting is based on a review of tape recordings and
transcriptions made by Local 878 and Respondent. See R. Exhs. 13, 14; CP Exhs. 1, 2. While the
parties’ respective transcripts conflict in some minor regards, I found these discrepancies immaterial to
my analysis, except as otherwise noted.
JD(SF)–39–19
9
claimed that an individual named “Zenaida”10 had instructed him to re-glue the wallpaper in the
rooms. Asked again whether he had reported the situation to Best, he responded that he was
“pretty sure” that he had. Bhattacharya then stated that Best had no recollection of him reporting
the rooms, to which Rosario responded that Best had trouble remembering a lot of things. At
that point, Bhattacharya stated that management was still investigating the incident and would 5
get back to Esparza within a couple of hours.
7. Management’s additional investigation and Rosario’s discharge
Following the meeting, Battacharya and Rader took steps to verify the version of events 10
Rosario had related. Their review of work schedules indicated that neither Best nor a
housekeeper named Zenaida Del Pilar (Del Pilar) had worked on the 19th. Battacharya re-
interviewed Best, who confirmed that he was not at work that day and re-confirmed had not been
contacted by Rosario about mold in either room 826 or 534. The managers also reviewed the
Hotel’s occupancy rate for the 19th, which was relatively low, casting doubt on Rosario’s claim 15
that refastening the wallpaper in one of the rooms had been a priority assignment. (Tr. 629, 802,
945, 963–965; R. Exhs. 33, 34, 50.)
Even though Rosario had admitted to covering up the mold in rooms 826 and 534,
Battacharya and Rader also interviewed Clark, who was the only other maintenance technician 20
present in those rooms on August 19. Clark denied any involvement and allowed management to
inspect his cell phone, which was an older style, analog phone, as opposed to an HTC model of
the type that had captured the images in question. Neither Del Pilar (who was not at work on
October 9) nor housekeeping employees DeCruz or Vasilevska was interviewed; as Rader
explained, this was in large part because, as housekeeping employees, they were not issued spray 25
glue and were thus presumably incapable of reattaching wallpaper. (Tr. 800–801, 846, 854, 926,
946, 958–959, 1041–1043.)
8. Rosario’s discharge
30
After consulting legal counsel, Bhattacharya and Rader concluded that Rosario had violated
Hotel policy by covering up the mold and failing to bring it to the attention of management, and
that discharge was appropriate. (Tr. 811, 814, 966, 969.) Two to three hours following
Rosario’s initial investigatory interview, the five attendees regrouped. Rader reported that Best
had denied being told about the mold, and therefore Rosario was being discharged.11 Rosario 35
was issued a written discharge letter which stated:
The reason for your termination is that it has recently come to
management’s attention that you repaired the wallpaper in Room
534 on August 19, 2017 and failed to report the visible presence of 40
mold.

10 Although the Union’s transcription of the meeting indicates that the individual Rosario referred to
was named “Tamika,” I found this inconsistent with the witnesses’ recollection and the underlying
recordings of the meeting. (Tr. 801–802, 944, 966.)
11 Rosario, for his part, testified that Rader in fact stated that he was being discharged because he had
taken pictures of the two rooms, but this was denied by the remaining witnesses, including his own
representative, Esparza. (Tr. 305–306, 460.)
JD(SF)–39–19
10
(Jt. Exh. 3.) Following his discharge, Rosario was escorted off the property; Rader briefly
considered having him leave through the lobby with his large, wheeled toolbox (to avoid stairs
placed at the regular employee entrance), but after Esparza objected, a less public route was
selected. (Tr. 461–463, 975.)5
As noted, Del Pilar was not at work on October 9; the following day, however, Bhattacharya
and Rader interviewed her. Presented with Rosario’s photographs, she confirmed that she had
never spoken to Rosario about room 826 or 534 and signed a statement to that effect. She
testified consistently at hearing, confirming that she understood Respondent’s mold reporting 10
policy and had never asked Rosario to cover up mold. Battacharya also followed up with Best
the day after Rosario’s discharge, at which point Best provided him with a statement denying
that Rosario had reported the rooms in question, as well as a copy of his telephone bill, which
disclosed that he had not received any call from Rosario on the 19th. (Tr. 645–652, 802, 807,
914–917, 945, 1061; R. Exh. 21, 36.)15
B. Analysis
In a typical adverse action case, the Board relies on its “mixed motive” test set forth
in Wright Line.12 Under this test, if the General Counsel makes a prima facie showing that 20
protected conduct was a motivating factor in the employer’s decision, the burden shifts to the
employer to demonstrate that the “same action would have taken place even in the absence of the
protected conduct.” Id. An employer may typically meet this burden by demonstrating that its
decision was based on a good-faith belief that the employee engaged in misconduct and is not
required to demonstrate the correctness of this belief. In such a case, whether the employee25
actually engaged in the alleged misconduct is irrelevant to the merits of the case. On occasion,
however, the government’s theory of liability dictates otherwise, rendering necessary a
determination on the issue of the employee’s underlying conduct.
In the instant matter, the General Counsel asserts two theories of liability. First, it contends30
that Respondent was motivated not by Rosario’s covering up and failing to report mold, but
rather seized on this conduct in order to rid itself of a known union supporter. This is a mixed-
motive theory calling for a Wright Line analysis. See, e.g., Waste Management of Arizona, 345
NLRB 1339 (2005). However, the government alternately argues for a violation based on the
Supreme Court’s Burnup & Sims standard. In that case, the Court established an enhanced 35
protection for employees disciplined for alleged misconduct taking place in the course of
otherwise protected conduct. In such cases, the Board declines to extend the “good faith belief”
defense and will find the employer’s action lawful only where the employer’s belief is ultimately
proven to be correct.13 Accordingly, because Respondent claims to have discharged Rosario for
alleged misconduct occurring in the course of his documenting working conditions at the Hotel,40

12 See 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393 (1983).
13 See NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964). As the Court explained, this approach aims
to provide employees heightened protection against meritless suspicions of misconduct allegedly
committed in the course of protected conduct. Id. at 23–24.
JD(SF)–39–19
11
the General Counsel argues that Respondent’s reasonable, good-faith belief does not carry the
day, and Respondent will have violated the Act if its belief was mistaken.14
1. Wright Line
5
As noted, the General Counsel argues, pursuant to Wright Line, that Respondent was not, as
it claims, motivated by Rosario’s covering up and failing to report mold, but rather seized on this
conduct in order to rid itself of a known union supporter.
Initially, I find that the General Counsel has carried his initial Wright Line burden of showing 10
that Rosario’s discharge was unlawfully motivated. The evidence demonstrates that, for years
prior to his discharge, Rosario engaged in open union activity of which Respondent’s managers
and supervisors—including decisionmakers Bhattachyra and Rader—were well aware.
Moreover, ample animus is evidenced by remarks by Respondent’s former general manager, who
was so indignant over Rosario’s role as the Union’s de facto “mold photographer” that he had 15
even considered engineering a pretext for discharging him. I also find a degree of animus
revealed by the fact that, before completing his investigation, Bhattachyra suspected Rosario of
being responsible for the August 19 photographs. I note, however, that the General Counsel
adduced no evidence that a desire to discharge him, as opposed to determine how rooms 826 and
534 had gone unaddressed, was what precipitated the investigation in the first place. Cf. 20
Supershuttle of Orange County, Inc., 339 NLRB 1, 3 (2003); Kiddie, Inc., 294 NLRB 840, fn. 4
(1989) and cases cited therein.15
The burden thus shifts to Respondent to show by a preponderance of the evidence that it
would have discharged Rosario even in the absence of his known union activity. As noted, under 25
the Wright Line standard, Respondent need not prove that Rosario failed to report mold and/or
covered it up in the absence of a legitimate order to do so, but only that it reasonably believed
that he had. See Metropolitan Transportation Services, 351 NLRB 657, 659 (2007); McKesson
Drug Co., 337 NLRB 935, 937 fn. 7 (2002) (citations omitted). I find that Respondent has done
so. That the Hotel takes mold seriously and expects employees to report it in a timely manner is 30
well established throughout the record. Upon viewing the Union’s online images of rooms 826
and 534, Bhattacharya, as the Hotel’s top executive, immediately headed up an extensive
investigation into what had occurred. Objective evidence, in the form of computer metadata and
Respondent’s key interrogatory logs, led inexorably to Rosario, who prevaricated wildly when
interviewed and ultimately offered a thoroughly implausible explanation that was contradicted 35
by multiple sources.

14 Charging Party, by its post-hearing brief, argues that I should find that Respondent unlawfully
discharged Rosario based on what appears to be a typographical error in Respondent’s answer to the
complaint. This however, is not a theory of liability asserted by the General Counsel, so I decline to
consider it. See Hobby Lobby Stores, Inc., 363 NLRB No. 195, slip op. at 1 n. 2 (2016) (“It is well settled
that a charging party cannot enlarge upon or change the General Counsel’s theory of a case”) (citing
Kimtruss Corp., 305 NLRB 710, 711 (1991) (judge erred in finding an 8(a)(1) violation based on
charging party’s theory as well as the General Counsel’s theory)).
15 Charging Party, by its brief, appears to suggest that Rader’s aborted attempt to have Rosario exit,
post-discharge, through the Hotel’s lobby evinces further evidence of animus against him; I disagree and
credit Rader’s testimony that he simply wanted to accommodate Rosario’s large, wheeled toolbox.
JD(SF)–39–19
12
Under the circumstances, I find that Respondent had a reasonable, good-faith belief that
Rosario had engaged in misconduct of a serious nature, as substantiated by Respondent’s own
thorough investigation. Cordua Restaurants, Inc., 366 NLRB No. 72, slip op. at 4 (2019); see
also DTR Industries, 350 NLRB 1132, 1135–1136 & fn. 29 (2007) (“[g]iven the magnitude of
the financial loss caused by this 2-day spurt of ruined production, and the Respondent’s careful 5
elimination of other bases to explain the production errors,” the respondent established its
reasonable belief that the employee intentionally produced defective products), enfd. 297
Fed.Appx. 487 (6th Cir. 2008) (unpublished); GHR Energy Corp., 294 NLRB 1011, 1012–1013
(1989) (finding respondent met its Wright Line burden by establishing that it would have
suspended the employees, even in the absence of their protected activity, because based on its 10
investigation, it reasonably believed they had engaged in serious misconduct endangering other
employees and the plant itself), enfd. 924 F.2d 1055 (5th Cir. 1991) (unpublished).
The General Counsel and Charging Party argue that, despite this evidence, I should find that
Respondent’s decision to discharge Rosario was in fact unlawfully motivated. Chiefly, they 15
contend that management’s “seemingly thorough investigation” was in fact pretextual, as
evidenced by its failure to investigate housekeeping employees DeCruz and Vasilevska’s
potential involvement in the wrongdoing. Although neither had been named by Rosario as
having been involved, the General Counsel argues, they should have been interviewed, because
the key logs showed that they had been present on the day in question and therefore may have 20
also violated Respondent’s mold-reporting policies. I disagree.
Other than an instance of prior reliance on a key interrogatory report, the record contains no
evidence of Respondent’s standards or historical practices for investigating employee
misconduct. Thus, there is no evidence that historically, upon discovering mold in hotel rooms, 25
Respondent has undertaken an investigation into every employee who may have failed to report
it. In the absence of evidence of such a standard or practice, finding suspect Respondent’s
failure to interview additional employees would amount to me, as the trier of fact, substituting
my business judgment for that of Respondent, which is inappropriate to my role. See Ryder
Distribution Resources, 311 NLRB 814, 816–817 (1993); see also Texas Instruments v. NLRB, 30
599 F.2d 1067, 1073 (1st Cir. 1979) (the issue is “not to determine how the Board would have
behaved under similar circumstances but to determine what in fact motivated the employer”);
FPC Advertising Inc., 231 NLRB 1135, 1136 (1977) (employer’s business conduct is not to be
judged by any other standard other than which it has set for itself). I likewise decline Charging
Party’s invitation to second guess the level of discipline imposed on Rosario, based on his tenure 35
and value to the hotel. See Sam’s Club, 349 NLRB 1007, 1009 fn. 10 (2007) (“‘[A]s we have so
often said: management is for management. Neither Board nor Court can second-guess it or give
it gentle guidance by over-the-shoulder supervision”’) (quoting NLRB v. Columbus Marble
Works, 233 F.2d 406, 413 (5th Cir. 1956)).
40
JD(SF)–39–19
13
On a more granular scale, the General Counsel points out that Respondent interviewed Del
Pilar only after discharging Rosario. This is hardly surprising, considering that it had been
determined that she was not even at work on the day Rosario claimed that she ordered him to
cover up mold. Nor am I convinced, as the General Counsel urges, that Respondent’s interview
of Rosario demonstrated pretext. In this regard, I decline, for the reasons stated, supra, to second 5
guess Respondent’s decision to interview Rosario (who did not request an interpreter) in English,
his second language. Nor do I agree that Bhattacharya and Rader somehow tried to “trick” him
during the interview by mischaracterizing his answers to their questions. The recording of the
interview reveals that, within minutes, Rosario changed his story from knowing nothing about
the rooms to having reported mold in them to Best. Under the circumstances, I find that 10
Bhattacharya and Rader were legitimately attempting to address his dissembling.16 In short, I
find nothing suspicious or unusual in Respondent’s effort to investigate the misconduct before
determining that Rosario was to blame. See Westinghouse Electric Corp., 277 NLRB 136, 137
(1985) (reversing judge’s rejection of employer’s case based on purported flaws in its
investigation of employee misconduct where investigation was not “biased, negligent, or 15
cursory”).
As further support for finding Rosario’s discharge pretextual, the General Counsel argues
that I should infer that Respondent did not enforce its mold reporting policy consistently because
Rosario is the sole employee who has been disciplined pursuant to it. Considering, however, that 20
there is no evidence of any employee engaging in conduct similar to his, this argument has little
force. St. George Warehouse, 349 NLRB 870, 879 (2007) (finding no disparate treatment where
employee’s conduct was unprecedented and therefore no similarly situated employees existed for
comparison). Finally, I reject the suggestion that the timing of the discharge decision (1 day
before the Anchorage mold ordinance was voted into effect) is somehow suspect; the credible 25
record evidence establishes that Respondent’s actions were a direct, timely response to the
Union’s emailed and online publication of mold images in rooms 826 and 534, combined with
the need to accommodate Rader’s prescheduled out-of-town trip.
Accordingly, I find that the General Counsel’s pretext arguments lack merit and therefore an 30
analysis under Wright Line dictates a finding for Respondent.
2. Burnup & Sims
The result under Wright Line, however, is not dispositive of Rosario’s discharge allegation, 35
if, as the General Counsel urges, Burnup & Sims is applied. As discussed, supra, that standard’s
heightened protection dictates that Respondent’s reasonable, good-faith belief that Rosario
committed misconduct will not exonerate it unless that belief was correct.
Under Burnup & Sims, Respondent bears the initial burden to show that it had a good-faith 40
belief that the disciplined employee was engaged in misconduct. As discussed, supra, I have
found that Respondent discharged Rosario because it reasonably believed that he covered up and
failed to report the mold in rooms 826 and 534. The burden then shifts to the General Counsel,

16 Although I agree with Charging Party that Rosario was, in fact privileged to deny being
responsible for the mold photographs, I find this temporary attempt to deflect blame was not itself the
conduct for which he was discharged.
JD(SF)–39–19
14
who must prove that Rosario was engaged in a protected activity, that Respondent knew this
activity was protected, that the discharge decision was based on alleged misconduct occurring in
the course of that protected activity, and that Rosario was not guilty of that misconduct. Id. The
first two elements are easily established. Clearly, by photographing rooms 826 and 534 on
August 19 and providing his images to the Union on August 22, Rosario engaged in the 5
protected conduct of documenting a health and safety condition for publication on the Union’s
mold website. The record establishes that Respondent had knowledge of this conduct and
considered it protected, as evidenced by the repeated assurances Rosario was given during his
interview.
10
The third prong—whether Rosario was discharged based on conduct occurring “during the
course” of his protected conduct—presents a closer call. Section 7 clearly protected Rosario’s
right to document the mold conditions he discovered on August 19. While his “cleaning” and
covering up the mold did, in fact, take place in between his protected acts of photographing it
and providing the images to the Union, Rosario’s failure to report the mold condition he had 15
concealed continued long after his protected conduct (providing the images to Valadez) had
ceased. This was gratuitous and punitive on his part and did nothing to enhance the Union’s
effort to publicize the Hotel’s mold conditions online. Indeed, insofar as Rosario misrepresented
his own actions to the Union itself—leading Valades to believe that he had reported the mold—it
can hardly be argued that his deception was intertwined with his protected conduct. See 20
Roadway Express, 271 NLRB 1238 (1984) (employer lawfully discharged employee who, in
furtherance of union’s grievance, surreptitiously obtained business records from the employer’s
office which he then turned over to union steward).
I further find that Rosario’s misconduct, even to the extent it occurred within the context of 25
his protected act of documenting mold for the Union, amounted to gamesmanship that went
beyond the Act’s protection and therefore cannot be considered “part and parcel” with his
protected conduct. The Act will not protect conduct that compromises the safety of employees
or others, the classic example being a worker who concertedly walks off the job leaving boilers
unattended. As one court has put it, “the Act permits employees to exercise self-help, but not in 30
a reckless way.” NLRB v. Federal Sec., Inc., 154 F.3d 751 (7th Cir. 1998); see also Waco, Inc.,
273 NLRB 746, 746 (1984) (employee wearing large, cardboard prounion sign on his person
while operating machinery unprotected).
There is ample evidence that the presence of mold at the Hotel poses a serious potential 35
health threat to both guests and employees. Moreover, the credible evidence establishes that
Rosario was never ordered to conceal the mold in rooms 826 and 534, but did so unilaterally,
thereby preventing a workplace health hazard from being properly remediated and compromising
the safety of the Hotel’s guests and management, as well as that of his own coworkers. I find
this conduct recklessly dangerous and therefore unprotected. 40
JD(SF)–39–19
15
Rosario’s further act of deception in failing to report the mold condition was likewise
unprotected. As the Board has explained:
in certain circumstances, an employee may lose the protection of
the Act by engaging in conduct that is deliberately deceptive or 5
maliciously false where there is no necessary link between the
deception or falsification and the protected conduct.
Encino Hosp. Med. Center, 360 NLRB 335, 335 (2014) (finding that steward lost protection of
the Act by engaging in deception that was neither an integral nor a necessary part of her 10
representing coworker); Ogihara America Corp., 347 NLRB 110, 112–113 (2006) (finding union
adherent lost the Act’s protection where no link between his falsification and his protected
conduct), affd. 514 F.3d 574 (6th Cir. 2008); Newark Morning Ledger, 316 NLRB 1268, 1271
(1995) (finding employee-steward lost protection of the Act where, in the course of his steward
duties, he altered employer’s business record to gain advantage for union); HCA/Portsmouth 15
Regional Hospital, 316 NLRB 919, 919 (1995) (finding employee lost the Act’s protection
where no link between her spreading false rumors about supervisor and her concerted
activities).17 Accordingly, I find that, because Rosario’s misconduct was temporally distinct
from and not integral to his protected conduct, the government cannot establish the third prong of
its burden under Burnup & Sims. See White Electrical Constr. Co., 45 NLRB 1095, 1096 (2005) 20
“[t]he Burnup & Sims rationale does not apply…when employees are not engaged in protected
activity) (citing Yuker Construction Co., 335 NLRB 1072, 1073 (2001)).
Finally, even were Rosario’s course of conduct properly analyzed under Burnup & Sims,
application of that decision’s heightened standard of protection would not yield a finding of 25
violation. This is because the General Counsel simply failed to establish, by credible evidence,
that Rosario did not in fact engage in the misconduct for which he was discharged. Put
differently, in order to prevail under this standard, the General Counsel must prove that Rosario’s
admitted conduct—covering up suspected mold with wallpaper—did not amount to misconduct
because it was, in effect, ordered by an agent of Respondent, and further that he did, in fact, 30
report the rooms in question, at least after the fact.
The problem is that the credible evidence fails to support either finding. Rosario’s rather
implausible inability to recall the identity of the room supervisor he claims directed him to the
two rooms, coupled with the General Counsel’s failure to adduce this evidence at hearing, leaves 35
unresolved whether this person was, as alleged, an agent of Respondent, as opposed to a
character fabricated by Rosario. The burden of proving agency status is on the party asserting
that agency status exists, Food Mart Eureka, Inc., 323 NLRB 1288, 1295 (1997); United
Federation of Teachers Welfare Fund, 322 NLRB 385, 391 (1996); Millard Processing Service,
304 NLRB 770 (1991), and conclusory assertions that room supervisors are generally considered 40
conduits of management are insufficient. In any event, by Rosario’s own testimony, this mystery
individual did not, in fact, order him to cover up mold, but merely to reattach wallpaper under

17 Treated differently are cases in which the falsification at issue is “part and parcel” of the protected
conduct, such as when a steward signs a grievant’s name in order to preserve the timeliness of the
grievance. See OPW Fueling Components, 343 NLRB 1034, 1037 (2004), enfd. 443 F.3d 490 (6th Cir.
2006); Roadmaster Corp., 288 NLRB 1195, 1196 (1988), enfd. 874 F.2d 448 (7th Cir. 1989)).
JD(SF)–39–19
16
which he later discovered mold, rendering the agency issue largely moot. Nor do I credit
Rosario’s obscure claim that some unidentified person or persons had historically given him an
“order” to clean up suspected mold and glue wallpaper over it. Operative Plasterers, Local 394,
207 NLRB 147, 147 (1973) (“[a] trier of fact need not accept uncontradicted testimony as true if
it contains improbabilities or if there are reasonable grounds for concluding that it is false”). 5
Finally, I credit Best and find that Rosario, who obviously changed his story about how and
when he had reported the mold, never actually did so.18

In summary, I find that, because the misconduct for which Rosario was discharged did not
occur within a course of protected conduct, and additionally because the General Counsel has 10
failed to demonstrate that Respondent’s good-faith belief in Rosario’s misconduct was, in fact,
mistaken, an application of Burnup & Sims standard does not operate to salvage the General
Counsel’s case.
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended19
ORDER
It is recommended that the complaint be dismissed in its entirety.
Dated: Washington, D.C. November 14, 2019
Mara-Louise Anzalone
Administrative Law Judge

18 Despite having told both management and the Union that the two spoke by phone, Rosario appears
to have recalibrated his story for a trial in which telephone records were introduced showing no such call
was made.
19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.