CP Anchorage Hotel 2, LLC d/b/a Hilton Anchorage

National Labor Relations Board - Board Decisions

May 29, 2020

369 N.L.R.B. 92 (N.L.R.B. 2020)

369 NLRB No. 92
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.
CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage1
and UNITE HERE! Local 878, AFL–CIO. Case
19–CA–215741
May 29, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On November 14, 2019, Administrative Law Judge
Mara-Louise Anzalone issued the attached decision. The
Charging Party, UNITE HERE! Local 878, AFL–CIO,
filed exceptions and a supporting brief. The Respondent,
CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage,
filed an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended Or-
der.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. May 29, 2020
John F. Ring, Chairman
Marvin E. Kaplan, Member
William J. Emanuel, Member
1 Consistent with the joint stipulation of facts into which the General
Counsel and the Respondent entered and the amendment of the pleadings
granted by the judge at the hearing, we have amended the caption to cor-
rectly identify the Respondent.
2 In dismissing the allegation that the Respondent unlawfully dis-
charged Noberto “Bill” Rosario, we affirm the judge’s finding that the
Respondent established it would have discharged Rosario for covering
up and failing to report mold even in the absence of his protected activity.
We find that NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964), does not
apply here because the misconduct for which Rosario was discharged did
not occur in the course of protected activity. In any event, even if Burnup
& Sims did apply, the judge correctly found that the General Counsel
failed to establish that Rosario was not, in fact, guilty of that misconduct.
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 is-
sued a complaint on October 30, 2018 (the complaint). The Gen-
eral 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 documen-
tary evidence, to argue their respective legal positions orally, and
to file post-hearing briefs. On April 22, 2019, posthearing briefs
were filed by the parties and 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
I. JURISDICTION
Respondent admits, and I find, that it is a Delaware limited
liability company with an office and place of business in Anchor-
age, 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 period immediately preceding
the issuance of the complaint, Respondent derived gross reve-
nues in excess of $500,000. During the same time period, Re-
spondent 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
1 At hearing, the parties stipulated as to Respondent’s correct name.
2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh. __” for General Counsel’s Exhibit; “R. Exh. __” for
Respondent’s Exhibit; “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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent also admits, and I find,
that the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the National Labor Relations Board (the Board)
has jurisdiction of this case, pursuant to Section 10(a) of the Act.
I. THE ALLEGED UNFAIR LABOR PRACTICES
On October 9, 2017, Rosario was discharged following an in-
vestigation 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, 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 man-
agement. As such, witness credibility was a central feature of
this case.
I based my credibility resolutions on consideration of a wit-
ness’ 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’ recollec-
tion; testimonial consistency; the presence or absence of corrob-
oration; the strength of rebuttal evidence, if any; the weight of
the evidence and witness demeanor while testifying. My credi-
bility findings, which are generally incorporated into the findings
of fact set forth herein, dictate that Rosario’s discharge did not
violate the Act as alleged.
A. Factual Background
At the time of his discharge, Rosario was a 10-year Hotel em-
ployee represented by Local 878. He worked as a maintenance
technician, which involved performing general repairs through-
out the Hotel, such as addressing plumbing, heating and air-con-
ditioning issues. 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 ac-
tually received the award in 2016. (Tr. 250, 252–253, 256, 262–
263, 272, 311, 382–384; GC Exhs. 9, 10.)
For a decade, Respondent and the Union have failed to reach
a successor agreement to an expired collective-bargaining agree-
ment 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 un-
ion button to work each day, attended bargaining sessions and
union rallies observed by management and signed several pro-
union petitions. While in the presence of managers in an em-
ployee 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.)
3 Unless otherwise indicated, all dates herein refer to the year 2017.
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
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 ho-
tels, such as Respondent’s. In early 2014, Rosario began report-
ing problems with working conditions at the Hotel to the Union,
including mold. Between 2014 and his discharge, he also pho-
tographed 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 dedi-
cated to the Hotel’s mold problem, aptly named “hiltonanchor-
agemoldreport.org.” (Tr. 124–125, 450–452, 709; Jt. Exh. 6.)
In May 2014, the Union assisted unit employees in filing com-
plaints with OSHA about mold in the Hotel, which resulted in
the agency conducting three surprise inspections during the re-
mainder 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 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 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 Ro-
sario with the aim of declaring him a “no call/no show” and dis-
charging him. This, he told managers not including Bhattcharya)
would “stop the mole.”4 He never carried out the plan, instead
approving Rosario’s vacation; later, however, he expressed re-
gret 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.)
In 2017, the Union lobbied the Anchorage Assembly (the
city’s governing body) to enact legislation specifically govern-
ing 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 fa-
vor of the draft bill) on October 6. Two of Respondent’s repre-
sented employees, but not Rosario, gave testimony in support of
the legislation. The mold ordinance was voted into law on Oc-
tober 10. (Tr. 422–423, 494–495; Jt. Exh. 6.)
2. Respondent’s mold remediation policies
Respondent maintains no written policy on employee respon-
sibilities with respect to mold, but numerous management wit-
nesses, as well as two current-employee witnesses and Rosario
himself, testified that the established protocol was that, upon
impeached by business records offered by Respondent, which appears to
demonstrate only that Tokman was considered denying Rosario’s vaca-
tion retroactively after it had already begun.
CP ANCHORAGE HOTEL 2, LLC, D/B/A HILTON ANCHORAGE 3
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 Human Resources, employees were explicitly
instructed in official training sessions that they were not them-
selves 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 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 man-
agement would arrange for an outside contractor specializing in
mold abatement to inspect and test the substance. Upon confir-
mation that it was mold, Best would then put a “hard block” 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.)
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 re-
quested by a female “room supervisor” to replace peeling wall-
paper in rooms 534 and 826. 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.
(Tr. 263–264, 277–278, 287–288, 291–293, 298, 543–548, 842,
844, 965.)
Rosario testified that, on August 19, a room supervisor sum-
moned 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 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 indi-
cate that there was mold underneath that should be covered up.
At hearing, Rosario could not recall the name of the room super-
visor 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.)
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
Reattaching peeling wallpaper with spray glue is not an un-
common task for a maintenance 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 re-
glued the wallpaper. Although he was admittedly concerned
about the presence of the mold, he did not alert the room super-
visor 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.)
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 counternar-
rative that legitimized his failure to comply with it on August 19.
This testimony, however, was disjointed to the point of incoher-
ence. 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 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 identi-
fying who specifically issued this order, he was markedly eva-
sive, claiming “when there’s mold, I’m supposed to clean it and
then glue it 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 con-
duct, claiming that, at some prior occasion, he had been in-
structed to use ZEP to remove mold. Pressed, however, he ad-
mitted that 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 Housekeeping Ivan Tellis (Tellis)
had ordered him to cover up mold in some manner. This testi-
mony, 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 to ignore Respondent’s established
mold protocol. Apart from the inherent implausibility of his in-
ability to recall the identity of the only witness who could cor-
roborate his account, his demeanor itself strongly detracted from
his credibility. He appeared to struggle through this testimony,
reported to the Union, this is not a sufficient basis on which to base an
inference, especially considering that more definitive evidence on the is-
sue could have been adduced on the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
his noticeably distraught comportment suggesting that he had not
convinced himself of his own story.
4. Rosario’s subsequent conduct
On August 22, Rosario sent images of the mold he had con-
cealed to Local 878 organizer, Dayra Valades (Valades). Two
days later, pursuant to the Union’s internal verification policy,
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.” (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 ac-
tually told him about the rooms three days later, on August 22,
when both men were next 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 sug-
gested to me that he was genuinely uneasy giving testimony ob-
viously adverse to Rosario, his formerly coveted “magician,” but
was nonetheless committed to telling the truth. (Tr. 296–297,
363, 629.)
5. The Union’s publication of Rosario’s photographs and Re-
spondent’s initial investigation
On September 26, the Hotel’s General Manager Bhattcharya
received an email forwarded by a Regional Vice President of Re-
spondent’s parent company. The original email, written by the
general manager of another Hilton property, forwarded an email
he had received from a union 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 “Un-
acceptable” 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 Un-
ion’s hiltonanchoragemoldreport.org website. (R. Exh. 28; Tr.
686–687, 759–762.)
Bhattcharya immediately referenced a list he kept of gues-
trooms in which mold had been remediated and confirmed that
6 Respondent’s Director of Security Charles Selden testified that run-
ning such reports was a relatively common occurrence; prior to Rosario,
at least one employee had been discharged based on information dis-
cerned 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 gen-
erally found Rader to be a forthright witness. (Tr. 899–900.)
neither 826 or 534 was included. He then contacted Chief Engi-
neer Best, Director of Housekeeping Tellis and Assistant Gen-
eral Manager Steve Rader (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, in-
spected room 534. After pulling back wallpaper in the spot in-
dicated 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 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 in-
terrogation” on the two rooms for the month of August; this in-
volves downloading a log of card key entries into each room.6
The key interrogatory logs showed that two maintenance em-
ployees—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 re-
vealed 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 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, including
Rosario, housekeeping employees Maria DeCruz (DeCruz) and
Anita Vasilevska (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 Ro-
sario 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 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
On October 9, Rader contacted Business Representative and
Vice President of Local 878 Daniel Esparza (Esparza) and re-
quested 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.)
The meeting was attended by Bhattacharya, Rader, Valades,
Esparza and Rosario himself.9 Rader took the lead, stating that
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
CP ANCHORAGE HOTEL 2, LLC, D/B/A HILTON ANCHORAGE 5
they were there to discuss misconduct that might carry conse-
quences; 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 problem with someone taking the pictures in
question, which Bhattacharya and Rader immediately denied.
Rader then stated that he had extracted metadata from the im-
ages, 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 Ro-
sario if he was familiar with the 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.
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 mold to Best, who
failed to follow up. After Bhattacharya pressed him, Rosario
stated that he now remembered the rooms and that he had re-
ported them to Best by telephone. He then claimed that an indi-
vidual named “Zenaida”10 had instructed him to re-glue the wall-
paper 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 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 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 Ro-
sario about mold in either room 826 or 534. The managers also
reviewed the Hotel’s occupancy rate for the 19th, which was rel-
atively low, casting doubt on Rosario’s claim 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.)
transcripts conflict in some minor regards, I found these discrepancies
immaterial to my analysis, except as otherwise noted.
10 Although the Union’s transcription of the meeting indicates that the
individual Rosario referred to was named “Tamika,” I found this incon-
sistent with the witnesses’ recollection and the underlying recordings of
the meeting. (Tr. 801–802, 944, 966.)
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 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 employ-
ees DeCruz or Vasilevska was interviewed; as Rader explained,
this was in large part because, as housekeeping employees, they
were not issued spray glue and were thus presumably incapable
of reattaching wallpaper. (Tr. 800–801, 846, 854, 926, 946, 958–
959, 1041–1043.)
8. Rosario’s discharge
After consulting legal counsel, Bhattacharya and Rader con-
cluded 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 de-
nied being told about the mold, and therefore Rosario was being
discharged.11 Rosario 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 mold.
(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.)
As noted, Del Pilar was not at work on October 9; the follow-
ing day, however, Bhattacharya and Rader interviewed her. Pre-
sented 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
policy and had never asked Rosario to cover up mold. Bat-
tacharya also followed up with Best the day after Rosario’s dis-
charge, at which point Best provided him with a statement deny-
ing that Rosario had reported the rooms in question, as well as a
copy of his telephone bill, which disclosed that he had not re-
ceived any call from Rosario on the 19th. (Tr. 645–652, 802,
807, 914–917, 945, 1061; R. Exh. 21, 36.)
A. 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
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 repre-
sentative, Esparza. (Tr. 305–306, 460.)
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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
General Counsel makes a prima facie showing that protected
conduct was a motivating factor in the employer’s decision, the
burden shifts to the employer to demonstrate that the “same ac-
tion 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 employee actually engaged in the alleged miscon-
duct is irrelevant to the merits of the case. On occasion, how-
ever, the government’s theory of liability dictates otherwise, ren-
dering 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 contends 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 ar-
gues for a violation based on the Supreme Court’s Burnup &
Sims standard. In that case, the Court established an enhanced
protection for employees disciplined for alleged misconduct tak-
ing place in the course of otherwise protected conduct. In such
cases, the Board declines to extend the “good faith belief” de-
fense and will find the employer’s action lawful only where the
employer’s belief is ultimately proven to be correct.13 Accord-
ingly, because Respondent claims to have discharged Rosario for
alleged misconduct occurring in the course of his documenting
working conditions at the Hotel, 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
As noted, the General Counsel argues, pursuant to Wright
Line, that Respondent was not, as it claims, motivated by Ro-
sario’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 that Rosario’s discharge was un-
lawfully 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 deci-
sionmakers Bhattachyra and Rader—were well aware. Moreo-
ver, ample animus is evidenced by remarks by Respondent’s for-
mer general manager, who was so indignant over Rosario’s role
as the Union’s de facto “mold photographer” that he had even
13 See NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964). As the Court
explained, this approach aims to provide employees heightened protec-
tion against meritless suspicions of misconduct allegedly committed in
the course of protected conduct. Id. at 23–24.
14 Charging Party, by its posthearing 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 fn. 2 (2016) (“It is well settled that a charging party
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 re-
sponsible for the August 19 photographs. I note, however, that
the General Counsel adduced no evidence that a desire to dis-
charge him, as opposed to determine how rooms 826 and 534
had gone unaddressed, was what precipitated the investigation in
the first place. Cf. 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 preponder-
ance of the evidence that it would have discharged Rosario even
in the absence of his known union activity. As noted, under 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 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 Re-
spondent’s key interrogatory logs, led inexorably to Rosario,
who prevaricated wildly when interviewed and ultimately of-
fered a thoroughly implausible explanation that was contradicted
by multiple sources.
Under the circumstances, I find that Respondent had a reason-
able, good-faith belief that Rosario had engaged in misconduct
of a serious nature, as substantiated by Respondent’s own thor-
ough 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 elimination of other bases to ex-
plain the production errors,” the respondent established its rea-
sonable belief that the employee intentionally produced defec-
tive products), enfd. 297 Fed.Appx. 487 (6th Cir. 2008) (un-
published); GHR Energy Corp., 294 NLRB 1011, 1012–1013
(1989) (finding respondent met its Wright Line burden by estab-
lishing that it would have suspended the employees, even in the
absence of their protected activity, because based on its investi-
gation, it reasonably believed they had engaged in serious mis-
conduct endangering other employees and the plant it-
self), enfd. 924 F.2d 1055 (5th Cir. 1991) (unpublished).
The General Counsel and Charging Party argue that, despite
cannot enlarge upon or change the General Counsel’s theory of a case”)
(citing Kimtruss Corp., 305 NLRB 710, 711 (1991) (judge erred in find-
ing 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, postdischarge, 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.
CP ANCHORAGE HOTEL 2, LLC, D/B/A HILTON ANCHORAGE 7
this evidence, I should find that Respondent’s decision to dis-
charge Rosario was in fact unlawfully motivated. Chiefly, they
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 in-
volvement 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 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 stand-
ards or historical practices for investigating employee miscon-
duct. Thus, there is no evidence that historically, upon discov-
ering mold in hotel rooms, Respondent has undertaken an inves-
tigation 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, 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) (em-
ployer’s business conduct is not to be judged by any other stand-
ard other than which it has set for itself). I likewise decline
Charging Party’s invitation to second guess the level of disci-
pline imposed on Rosario, based on his tenure 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)).
On a more granular scale, the General Counsel points out that
Respondent interviewed Del Pilar only after discharging Ro-
sario. This is hardly surprising, considering that it had been de-
termined that she was not even at work on the day Rosario
claimed that she ordered him to cover up mold. Nor am I con-
vinced, as the General Counsel urges, that Respondent’s inter-
view of Rosario demonstrated pretext. In this regard, I decline,
for the reasons stated, supra, to second guess Respondent’s deci-
sion 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 re-
ported mold in them to Best. Under the circumstances, I find
that Bhattacharya and Rader were legitimately attempting to ad-
dress his dissembling.16 In short, I find nothing suspicious or
unusual in Respondent’s effort to investigate the misconduct be-
fore determining that Rosario was to blame. See Westinghouse
16 Although I agree with Charging Party that Rosario was, in fact priv-
ileged to deny being responsible for the mold photographs, I find this
Electric Corp., 277 NLRB 136, 137 (1985) (reversing judge’s
rejection of employer’s case based on purported flaws in its in-
vestigation of employee misconduct where investigation was not
“biased, negligent, or 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 there is no evidence of any em-
ployee engaging in conduct similar to his, this argument has little
force. St. George Warehouse, 349 NLRB 870, 879 (2007) (find-
ing no disparate treatment where employee’s conduct was un-
precedented and therefore no similarly situated employees ex-
isted 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 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 argu-
ments lack merit and therefore an 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, 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 ex-
onerate it unless that belief was correct.
Under Burnup & Sims, Respondent bears the initial burden to
show that it had a good-faith belief that the disciplined employee
was engaged in misconduct. As discussed, supra, I have found
that Respondent discharged Rosario because it reasonably be-
lieved that he covered up and failed to report the mold in rooms
826 and 534. The burden then shifts to the General Counsel, 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 estab-
lished. Clearly, by photographing rooms 826 and 534 on August
19 and providing his images to the Union on August 22, Rosario
engaged in the 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 re-
peated assurances Rosario was given during his interview.
The third prong—whether Rosario was discharged based on
conduct occurring “during the course” of his protected con-
duct—presents a closer call. Section 7 clearly protected Ro-
sario’s right to document the mold conditions he discovered on
August 19. While his “cleaning” and covering up the mold did,
temporary attempt to deflect blame was not itself the conduct for which
he was discharged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
in fact, take place in between his protected acts of photographing
it and providing the images to the Union, Rosario’s failure to re-
port the mold condition he had 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 misrepre-
sented 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 Roadway Express, 271 NLRB 1238 (1984) (employer law-
fully discharged employee who, in furtherance of union’s griev-
ance, surreptitiously obtained business records from the em-
ployer’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 his protected act of documenting
mold for the Union, amounted to gamesmanship that went be-
yond 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 oth-
ers, 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 a
reckless way.” NLRB v. Federal Sec., Inc., 154 F.3d 751 (7th
Cir. 1998); see also Waco, Inc., 273 NLRB 746, 746 (1984) (em-
ployee 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 health threat to both guests and employ-
ees. 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.
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 maliciously false where there is no necessary link between
the deception or falsification and the protected conduct.
Encino Hospital Medical 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
representing coworker); Ogihara America Corp., 347 NLRB
110, 112–113 (2006) (finding union adherent lost the Act’s pro-
tection 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-stew-
ard lost protection of the Act where, in the course of his steward
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)).
duties, he altered employer’s business record to gain advantage
for union); HCA/Portsmouth 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 Ro-
sario’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 Elec-
trical Constr. Co., 45 NLRB 1095, 1096 (2005) “[t]he Burnup &
Sims rationale does not apply. . . .when employees are not en-
gaged in protected activity) (citing Yuker Construction Co., 335
NLRB 1072, 1073 (2001)).
Finally, even were Rosario’s course of conduct properly ana-
lyzed under Burnup & Sims, application of that decision’s
heightened standard of protection would not yield a finding of
violation. This is because the General Counsel simply failed to
establish, by credible evidence, that Rosario did not in fact en-
gage in the misconduct for which he was discharged. Put differ-
ently, in order to prevail under this standard, the General Counsel
must prove that Rosario’s admitted conduct—covering up sus-
pected mold with wallpaper—did not amount to misconduct be-
cause it was, in effect, ordered by an agent of Respondent, and
further that he did, in fact, report the rooms in question, at least
after the fact.
The problem is that the credible evidence fails to support ei-
ther 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 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 Eu-
reka, 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 as-
sertions that room supervisors are generally considered 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 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 Plas-
terers, 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”). 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 Ro-
sario was discharged did not occur within a course of protected
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.
CP ANCHORAGE HOTEL 2, LLC, D/B/A HILTON ANCHORAGE 9
conduct, and additionally because the General Counsel has 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 following recommended19
ORDER
It is recommended that the complaint be dismissed in its en-
tirety.
Dated, Washington, D.C. November 14, 2019
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 pur-
poses.