Field Family Associates, LLC d/b/a Hampton Inn NY���JFK Airport

National Labor Relations Board - Board Decisions

Aug 31, 2006

348 N.L.R.B. 16 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 2
16
Field Family Associates, LLC d/b/a Hampton Inn
NY—JFK Airport and New York Hotel and Mo-
tel Trades Council. Case 29-CA-26729
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 28, 2005, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The principal issues in this case are: (1) whether the
Respondent was aware of a Union campaign among the
subject employees at the time that it made its promise of
an increase in benefits; (2) if the Respondent was not so
aware, did it violate Section 8(a)(1) of the Act by prom-
ising new benefits in anticipation of a union organizing
campaign among these employees.1 We find that the
Respondent lacked knowledge that the Union had begun
organizing efforts among the subject employees when
the benefits were promised. We also conclude that the
Respondent did not violate the Act by making the prom-
ises even if it thought that such a campaign might begin
at some point in the future.2
A. Factual background
The Field family organization owns seven hotels, in-
cluding the Crowne Plaza at La Guardia Airport, the
Hampton Inn NY-JFK Airport, and the Holiday Inn NY-
JFK Airport. The New York Hotel and Motel Trades
Council (the Union) began organizing Crowne Plaza
employees in March or April and won the representation
election held there on May 13, 2004.3
In late April, the Respondent contracted with labor re-
lations specialist Quentin Nelson to meet with employees
at the two JFK hotels, where there had not yet been any
union activity. Vice President of Human Resources Chris
Polityka testified that the JFK hotels lacked adequate
human resources management and that he wanted to im-

1 This issue is identical to one in a related case, Holiday Inn NY-JFK
Airport, 348 NLRB 1 (2006), which was heard at the same time but not
consolidated with this case.
2 We adopt the judge’s finding, for the reasons stated by him, that
the Respondent violated Sec. 8(a)(1) in July 2004 by verbally warning
employee Jessie Morris that she would be subject to discipline for
bringing union literature into the employee cafeteria.
3 All dates are in 2004.
prove employee relations by hearing about and address-
ing employee concerns. The Respondent conceded that
its concerns included the ongoing organizing drive at the
Crowne Plaza and the possibility that the Union would
commence organizing among the JFK employees at
some point in the future.
From May 3 through 5, Nelson met with JFK employ-
ees in small group meetings during which he asked about
their concerns and showed a video about unionization.
Employees shared numerous complaints, which Nelson
in turn shared with the Respondent’s management in an
initial report on May 5 and in an e-mail on or about May
7. Later in May, the Union contacted several JFK em-
ployees at their homes and arranged meetings at the
Radisson Hotel from May 20 to 22. The Radisson was
nearby the JFK hotels, and numerous employees walked
to the meetings there after work.
On May 25, at a joint meeting with employees of both
JFK hotels, the Respondent’s Vice President Isenberg
promised wage increases and other benefits based on the
concerns that employees shared with Nelson earlier that
month.4 The changes were to take effect almost immedi-
ately, starting on or before June 1. During the question-
and-answer session that followed the meeting, some em-
ployees began to chant “union, union.” The Respon-
dent’s witnesses Polityka and Holiday Inn General Man-
ager Mark Lesser testified without contradiction that this
was their first indication that the Union was attempting
to organize JFK employees. On May 28, the Union filed
a representation petition for the employees at the JFK
hotels. In early June, the Respondent notified employees
in a letter that implementation of the wage increases and
other benefits would be delayed pending the outcome of
the election to avoid the appearance that the Respondent
was attempting to unlawfully influence employees in
their decision.
B. The judge’s decision
The judge concluded that the Respondent’s May 25
promise of wage increases and other benefits violated
Section 8(a)(1), finding that:
Whether or not the Employer was specifically
aware, as of May 25, that the Union had begun its
organizational efforts at the Hampton and Holiday

4 The promised wage increases and other benefits included the fol-
lowing: All new hires who had not yet received a $1 increase after 90
days would be paid the increase; any employee who had worked over-
time and not been properly paid would be paid the correct amount after
an audit; seniority would determine work schedules, days off, vacation,
and holiday time; wage increases would be announced on or before
June 1 and become effective as of that date; and the company would
reinstall the program of matching up to 6% of the employees’ contribu-
tions to the 401(k) plan.
HAMPTON INN NY—JFK AIRPORT 17
Inns, there is no question that management correctly
anticipated that the Union would shortly commence
to organize the two JFK hotels. The promises were
clearly made in anticipation of a petition being filed
by the Union and in my opinion they clearly were in-
tended to deter employees from supporting the Un-
ion.
The judge also found it “probable” that the Respondent
knew “something was going on” when it promised the
wage increases and other benefits, although the only af-
firmative evidence indicates that the Respondent lacked
such knowledge.5
C. Analysis
The General Counsel has not established that the Re-
spondent knew of a Union campaign when the Respon-
dent made its promises. Nor is the judge’s finding that it
was “probable” that management knew “something was
going on” borne out by the record. In fact, the only af-
firmative evidence is to the contrary. Management repre-
sentatives Polityka and Lesser testified without contra-
diction that their first indication of union activity at the
JFK hotels came at the May 25 meeting when some em-
ployees chanted for the Union after the Respondent
promised the wage increases and other benefits. Not even
all of the employees knew about the Union at this time;
employee Teresa Felix testified that she did not know
about the Union until after the May 25 meeting. There
was no evidence that Union literature had been distrib-
uted in the hotel. There was no testimony that anyone
had notified management of the Union meetings at the
Radisson Hotel, nor was there other evidence of man-
agement knowledge prior to May 25.
The judge speculated that management would have no-
ticed the number of employees going to the Radisson
Hotel for the offsite meetings during May 20 through 22.
However, there is no testimony that the comings and
goings of employees during their non-work time on these
days were any different from those of any other day, or
that the Respondent paid any attention to its employees’
off-hour movements. In sum, the judge’s speculation

5 In addition, the judge viewed the Respondent’s June letter delaying
implementation of its promises as an attempt to blame the Union for the
failure to grant the wage increases and other benefits. He deemed the
letter, together with the promised benefits, to be a “violation of the
law.” However, the General Counsel did not allege that the letter or
delay in implementation violated the Act, and we therefore disavow the
judge’s comments to the contrary. The judge also found the letter was
not a legitimate disavowal of the May 25 promises, under Passavant
Memorial Area Hospital, 237 NLRB 138 (1978). In light of our deci-
sion finding no violation in the Respondent’s promises, we find it un-
necessary to address the judge’s Passavant discussion.
about the Respondent’s knowledge does not substitute
for the required proof.
We now turn to the second issue: Whether the Re-
spondent violated Section 8(a)(1) of the Act by promis-
ing increased wages and benefits in anticipation of a un-
ion organizing campaign.
In NLRB v. Exchange Parts, 375 U.S. 405, 409 (1964),
the Supreme Court held that “the conferral of employee
benefits while a representation election is pending, for
the purpose of inducing employees to vote against the
union,” interferes with the employees’ protected right to
organize. While an election was imminent in that case,
the rule set out in Exchange Parts is also applicable to
promises or conferral of benefits during an organiza-
tional campaign but before a representation petition has
been filed. E.g., Curwood Inc., 339 NLRB 1137, 1147-
1148 (2003) enfd. in pertinent part 397 F.3d 548, 553-54
(7th Cir. 2005) (holding that a pre-petition announcement
and promise to improve pension benefits violated Section
8(a)(1) where the respondent was reacting to knowledge
of union activity among its employees).
The Respondent here admits that concerns about a po-
tential union organizational campaign among its employ-
ees motivated the announcement of new benefits. How-
ever, it contends that it could not have had the unlawful
purpose under Exchange Parts of interfering with em-
ployees’ organizational rights because it acted before
knowing that the Union’s campaign had commenced
among the Respondent’s employees.
Where it cannot be established that the employer knew
of union activity, the Board has not found unlawful the
grant or announcement of economic benefits. Thus, in
Norfolk Livestock Sales, 158 NLRB 1595, 1595 (1966),
the Board held that the respondent’s improved vacation
plan did not violate Section 8(a)(1) because the record
did not establish that at the time the vacation plan was
announced the respondent was aware of union activity
among its employees. Similarly, in Sigo Corp., 146
NLRB 1484, 1486 (1964), the respondent’s announce-
ment of a new insurance plan days after the union with-
drew its election petition did not violate the Act, as the
respondent could reasonably assume (albeit incorrectly)
that no union was actively organizing, and there was no
showing that the employer’s announcement was intended
to interfere with employees’ Section 7 rights.
It is not unlawful for a nonunion employer to improve
working conditions in an attempt to reduce the general
appeal of unionization when no union is actively organiz-
ing. In this respect, we agree with the First Circuit’s ob-
servations in NLRB v. Gotham Indus., Inc., 406 F.2d
1306, 1310 (1st Cir. 1969):
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Passing the exceptional employer who may raise
wages out of fraternal generosity, we suppose that
most nonunion employers give raises for one or both
of two reasons: to keep employees, old and new, in
the plant, and to keep unions out. As to the latter it
cannot be that every time it can be shown that an
employer was seeking to stay one step ahead of un-
ionization he was guilty of an unfair labor practice;
the situation must have sufficiently crystallized so
that some specific orientation exists. It would be a
sorry consequence if the Labor Relations Act were
to be construed as causing every nonunionized em-
ployer to think twice before initiating a wage in-
crease lest some union should appear and claim that
it had been frustrated. … At a minimum it must be
that to establish improper motivation requires a
showing that an employer knows or has knowledge
of facts reasonably indicating that a union is actively
seeking to organize, or else that an election is, to use
the Board’s word, impending.
Thus, to find an employer’s promise of economic
benefits unlawful, the Board must focus on whether the
respondent intended to interfere with actual union organ-
izational activity among its employees, rather than
whether the respondent wanted to stay “one step ahead”
of the union by diminishing the appeal of unionization.
If, as the judge held, correctly anticipating union activity
was sufficient to establish an 8(a)(1) violation, the result
would effectively prohibit nonunion employers from
improving working conditions in hopes of diminishing
the appeal of unionization generally, even when no union
is present and where employees have not shown any de-
sire to bring a union onto the scene. In sum, the judge’s
reasoning that it is unlawful to promise a wage increase
and other benefits in anticipation of possible union activ-
ity conflicts with the law.
Our dissenting colleague effectively concedes that our
dismissal of the 8(a)(1) allegation here is consistent with
Board precedent. She would overrule that precedent and
substitute the following test: “An employer violates Sec-
tion 8(a)(1) by promising a benefit when: (1) the em-
ployer is motivated by a desire to prevent employees
from unionizing; (2) organizing activity is in fact under
way; and (3) the employees reasonably would perceive a
connection between the employer’s promise of benefits
and their protected activity.”
Significantly, the second element of the above test
does not depend on whether the employer is aware of the
union activity. Indeed, in the instant case, the employer
was not aware of the activity. Thus, although our dis-
senting colleague says that an employer may lawfully
seek to stay “one step ahead” of any possible union cam-
paign, she effectively takes away that lawful stratagem
by condemning the employer’s action based on facts of
which the employer is unaware. The right to make that
lawful entrepreneurial choice is effectively chilled be-
cause the employer is made to act at its peril. In addi-
tion, our colleague’s approach means that an employer
that honestly wishes to conform to the law will find itself
in violation of law because of facts that it does not know.
The dissent also places the employer on the horns of a
dilemma. If the employer grants the benefit before
knowledge of the union campaign, it faces liability if
there is in fact a campaign. And, if it waits until after
acquiring knowledge of the campaign, it risks liability
under Exchange Parts. We do not believe that the Act is
intended to hamstring employers in this way. Indeed,
that it why the law has developed as it has. Unlike our
colleague, we would not change that law.
We do not view our analysis as exalting form over
substance as asserted by the dissent. Exchange Parts
focused on “the danger inherent in well-timed increases
in benefits.” 375 U.S. at 409. To be “well-timed,” a
promise of benefits must be more than coincidentally
made after organizing has commenced; it must be made
in specific response to organizing. 6 Consequently, em-
ployer knowledge of union activity is an essential ele-
ment of this 8(a)(1) violation. Thus, the law makes a
clear and appropriate demarcation between a general
desire to remain nonunion and a specific intent to inter-
fere with an ongoing campaign. Because the General
Counsel did not establish that the Respondent knew of
the organizational activity at the Hampton Inn NY-JFK
Airport at the time of the May 25 meeting, we find that
the Respondent’s promise of wage increases and other
benefits did not interfere with employee’s Section 7
rights in violation of Section 8(a)(1) of the Act. 7

6 Contrary to the dissent, the Supreme Court established in Exchange
Parts that the Sec. 8(a)(1) violation in this situation is motive-based and
thus requires employer knowledge.
7 Member Schaumber notes that his dissenting colleague’s test
would essentially create a gray area for nonunion employers in heavily
unionized industries or industries targeted for organizing. Such em-
ployers, who may reasonably anticipate organizing at any time, would
act at their peril whenever they improved wages and benefits, whether
they were acceding to employee demands or simply improving terms
and conditions of employment. They would essentially be compelled to
act as though a union were perpetually on the scene (until they knew a
campaign was under way, at which point they would have to act as
though the union were not on the scene). Furthermore, because an
employer is precluded from querying workers about whether union
organizing has commenced, it has few if any options for learning
whether a union campaign is under way. Moreover, it is entirely unnec-
essary to put the burden that the dissent does on employers in order to
protect employee free choice. If a union is concerned that an employer
will improve working conditions during the nascent days of a cam-
paign, the union may make its presence known at any time and thus
HAMPTON INN NY—JFK AIRPORT 19
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Field
Family Associates, LLC d/b/a Hampton Inn NY-JFK
Airport, New York, N.Y., its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Delete paragraph 1(a) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER LIEBMAN, dissenting in part.
In putting form over substance, the majority finds that
the Respondent’s promise of benefits was not unlawful,
because the General Counsel failed to prove that the Re-
spondent knew that an anticipated union-organizing
campaign was already underway. But the majority’s em-
ployer-knowledge requirement makes no sense here,
given the Act’s goal of protecting employees’ right freely
to choose whether to have union representation. So long
as the employer’s purpose is to forestall union- organiz-
ing activity, organizing activity is in fact under way, and
employees reasonably would perceive that the em-
ployer’s promise of benefits was intended to discourage
unionization, the promise should be found unlawful, con-
sistent with the Supreme Court’s decision in NLRB v.
Exchange Parts Co., 375 U.S. 405 (1963).1
I.
The facts are straightforward. The Respondent owns
three hotels in the New York City area. The Union
mounted a successful organizing campaign at the Re-
spondent’s Crown Plaza Hotel. While this campaign was
pending the Respondent hired a labor relations consultant
who, along with the Respondent’s managers, discussed
the Union’s organizing efforts at the Crown Plaza and
the likelihood that the Union would soon start organizing
the Respondent’s other two hotels, the Hampton Inn NY
JFK Airport and the Holiday Inn NY JFK Airport. The
Respondent then embarked on a campaign designed to
influence the employees against unionization. The labor
relations consultant held a series of meetings with the
employees at the Hampton Inn and the Holiday Inn, ask-
ing them what their concerns were and what they would
like to see changed. In addition, the consultant showed

possibly preclude the employer from improving benefits for the dura-
tion of the campaign.
1 I join the majority in adopting the judge’s finding that the Respon-
dent violated Sec. 8(a)(1) by warning employee Jessie Morris that she
would be subject to discipline for bringing union literature into the
employee cafeteria.
each group of employees a video involving union orga-
nizing. The consultant specifically reported to the Re-
spondent that, among other things, the employees were
unhappy with the Respondent’s failure to increase wages.
The Respondent was correct to anticipate the Union’s
desire to organize its other two hotels. The Union’s ini-
tial meetings with the Respondent’s employees took
place on May 20, 21, and 22, 2004 at the Radisson Hotel,
down the street from the Hampton Inn. Many employees
walked to the Radisson after work, and during those
meetings the Union solicited employees to sign authori-
zation cards.
On May 25, immediately after the Union meetings, the
Respondent held a meeting with its employees, and an-
nounced a series of wage increases to take affect the fol-
lowing month. At some point during the meeting, some
of the employees began chanting that they wanted the
Union. The Respondent asserts that this was the first
time it became aware that its Hampton Inn employees
were seeking union representation.
II.
In Exchange Parts, supra, the Supreme Court ex-
plained how a promise (or grant) of benefits interferes
with employees’ Section 7 rights:
The danger inherent in well-timed increases in benefits
is the suggestion of a fist inside the velvet glove. Em-
ployees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged.
375 U.S. at 409. That the benefits are not conditioned upon
voting against the union is not controlling, if the employer’s
purpose is one of “impinging upon ... freedom of choice for
or against and is reasonably calculated to have that effect.”
Id.
The Supreme Court’s approach focuses on the em-
ployer’s purpose and on the impact of the employer’s
conduct on the employees. The interference that em-
ployees suffer when they hear the promise of benefit
does not depend on what the employer knows. 2 It
hinges on what they reasonably think the employer
knows. If employees reasonably think that their employer
knows of their organizing, then the promise of benefit

2 See, e.g., Meijer, Inc., 344 NLRB No. 115, slip op. at 2 (2005)
(employer knowledge of union activity is not necessary element of Sec.
8(a)(1) violation), enf. denied, ____F.2d ____, Nos. 05-1951/2025 (6th
Cir. Aug. 21, 2006). In this respect, Sec. 8(a)(1) violations are distinct
from Sec. 8(a)(3) violations, which involve employer discrimination.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
will tend to interfere with that activity.3 As for the em-
ployer’s purpose, it also does not depend on knowledge
of actual organizing activity: the anticipation of organiz-
ing obviously can be enough to motivate the employer.
As long as the employer’s promise of benefits was mo-
tivated by a desire to prevent unionization, and its em-
ployees have engaged in organizing activities, the em-
ployer’s knowledge that the organizing campaign has
already commenced should be immaterial.
Consequently, I would find that an employer violates
Section 8(a)(1) by promising a benefit when: (1) the em-
ployer is motivated by a desire to prevent employees
from unionizing; (2) organizing activity is in fact under
way; and (3) the employees reasonably would perceive a
connection between the employer’s promise of benefits
and their protected activity.4
The majority criticizes the test that I propose, asserting
that an employer’s “lawful entrepreneurial choice” to
grant benefits to employees to dissuade them from orga-
nizing is “effectively chilled because the employer is
made to act at its peril.”5 Of course, limitations on “en-
trepreneurial choice” are inherent in much social legisla-
tion regulating business, including the National Labor
Relations Act and its protection of employee freedom of
choice from employer interference. Here, that paramount
statutory aim is given too little weight by the majority.
Moreover, the majority overestimates the “peril” facing
employers under my test, by focusing entirely on the fact
that it would not require a showing of actual employer
knowledge of organizing activity. My test incorporates
three elements: employer motive, actual organizing, and
employees’ reasonable perception of employer action. It
will be the unusual case—like this one, where the em-
ployer knew that organizing activity was imminent—in
which all three elements are satisfied. Thus, it seems
highly unlikely that many employers will be chilled from
taking actions that do not actually interfere with em-
ployee free choice, for fear of risking unfair-labor-
practice liability.
III.
That test was satisfied here. First, the Respondent was
clearly motivated by the desire to prevent its employees
from unionizing. The Respondent hired a “labor rela-

3 See Ewing v. NLRB, 861 F.2d 353, 362 (2d. Cir. 1988). (“The key
element in a chilling effect analysis should be the impact on employ-
ees.”).
4 To the extent that Norfolk Livestock Sales, 158 NLRB 1595 (1966),
and Sigo Corp., 146 NLRB 1484 (1964), cited by the majority, are
inconsistent with this test, I would overrule those decisions.
5 Member Schaumber goes further in asserting that under my test,
employers in “heavily unionized industries or industries targeted for
organizing ... essentially would be compelled to act as though a union
were perpetually on the scene.”
tions consultant” to solicit employee complaints and
show them an anti-union video. As the majority points
out, the Respondent conceded that its concerns included
not only the ongoing organizing drive at the Crown
Plaza, but also the possibility that the Union would
commence organizing among its employees at the Hamp-
ton Inn and Holiday Inn in the near future. I therefore
agree with the judge that the Respondent engaged in a
course of conduct intended to deter employees from
seeking union representation.
Second, the employees were in fact engaged in an ac-
tive union organizing campaign at the Hampton Inn on
May 25, the date that the Respondent promised them a
series of wage increases.
Third, based on the coincidence of the Respondent’s
anti-union campaign and the Union’s organizing cam-
paign, the employees would reasonably perceive a con-
nection between the Respondent’s promise of wage in-
creases and their protected activity. Reasonable employ-
ees would think that the Respondent knew of their orga-
nizing activities and promised the benefit to dissuade
them from supporting the Union. Thus, regardless of
whether the Respondent knew exactly how far the Un-
ion’s organizing campaign had progressed, its promise
reasonably would tend to interfere with the employees’
union activities. Therefore, the Respondent violated Sec-
tion 8(a)(1).
IV.
Although under the facts presented here I would find
that Section 8(a)(1) has been violated, my approach
would not automatically preclude an employer from
“staying one step ahead” of the union by improving em-
ployees’ terms and conditions of employment for the
purpose of forestalling unionization. Rather, an em-
ployer would run afoul of Section 8(a)(1) only where it
announces improved benefits in order to discourage un-
ionization, an organizing campaign is in fact underway,
and the employees reasonably would perceive that there
is a connection between the announcement of benefits
and the union organizing campaign. Thus, this approach
would permit employers to promise benefits in the vast
majority of cases, where no union activity has com-
menced. My approach, consistent with Exchange Parts,
strikes a better balance between employers’ interest in
legitimately forestalling unionization and the Act’s inter-
est in protecting employee free choice. Accordingly, I
dissent.
HAMPTON INN NY—JFK AIRPORT 21
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT warn our employees that they will be
subject to discipline because they bring union literature
into the employee cafeteria or any other non-working
areas.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
FIELD FAMILY ASSOCIATES, LLC
D/B/A HAMPTON INN NY-JFK AIRPORT
Sharon Chau, Esq., for the General Counsel
Andrew S. Hoffmann, Esq., for the Respondent
Jane Lauer-Barker, Esq., for the Union
DECISION
STATEMENT OF THE CASE
Raymond P. Green, Administrative Law Judge. I heard this
case on various days in March and April, 2005.1
The charge was filed on January 11, 2005 and the Complaint
was issued on January 18, 2005. In substance, the Complaint
alleged:
1. That on or about May 25, 2004, the Respondent, by Gary
Isenberg, its executive vice president of operations, in an effort
to dissuade employees from supporting the Union, promised
employees (a) a wage increase, (b) the reinstatement of a
matching percent contribution to their 401(k) plans and (c)
other unspecified improvements in their working conditions.
2. That in early July 2004, the Respondent, for discrimina-
tory reasons, issued a verbal warning to Jessie Morris.

1 This case was scheduled to be heard in conjunction with another
Consolidated Complaint involving a related hotel, (the Holiday Inn),
commonly owed with the Hampton Inn. Nevertheless, this case was
never officially consolidated with the others and as the issues here are
much simpler, I think that it is not necessary to wait before issuing a
Decision.
Based on the entire record, including my observations of the
demeanor of the witnesses and after considering the arguments
of counsel, I hereby make the following
Findings and Conclusions
I. JURISDICTION
The parties agree and I find that the Company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Field family organization owns seven hotels, four in
Philadelphia and three in New York. The three New York
hotels are the Crown Plaza at LaGuardia airport, and the Holi-
day Inn and Hampton Inn at JFK airport.
In March or April 2004, the Union commenced an organiz-
ing drive amongst the employees of the Crowne Plaza Hotel. A
petition was filed by the Union in relation to the employees at
the Crowne Plaza and an election was held on May 13, 2004.
The Union won that election and ultimately was certified as the
exclusive collective-bargaining representative.
At the time that the election at the Crowne Plaza was still
pending, the Respondent, in April 2004, engaged Quentin Nel-
son, a labor relations consultant who along with Respondent’s
managers, Chris Polityka2 and Gary Isenberg,3 discussed the
Union’s organizing effort at the Crowne Plaza and the likeli-
hood that the Union would soon commence organizing at the
Respondent’s JFK airport hotels. Nelson suggested and the
Respondent’s managers approved an “employee relations au-
dit.” The plan was that Nelson would hold a series of meetings
with the employees and ask them what there concerns were and
what they would like to see changed.
On April 28, 2004, Christopher Polityka, the Corporate Di-
rector of Human Resources sent a letter to the employees stat-
ing:
Last June, we announced a change in our 401k matching con-
tribution for the Airport Hospitality 401k Plan from a dollar
for dollar match up to 6%... to a dollar for dollar match up to
3%. . . In our FAQ’s sheet on our 401k program dated June
30, 2003, we stated, “this match will be re-evaluated annually
based upon business and economic circumstances.” With the
one-year anniversary of this change approaching, we wanted
to assure each of you that the current dollar for dollar match is
being revaluated for 2004/2005.
On May 3, 4, and 5, 2004, Nelson conducted a series of
meetings with the employees of both JFK hotels. He asked
them what their problems were and was told that the major
issues were the way employees were being treated by some of
the supervisors; the cutback that had previously been made in
contributions to the 401(k) pension plan; and the failure of the
company to give wage increases. In addition, Nelson showed
each group of employees a video concerning unionization.

2 Vice President of Human Resources.
3 Vice President of operations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
(There is, therefore, no question but that this survey was di-
rectly linked to the issue of unionization).
Nelson used an intriguing term to refer to this set of meet-
ings; describing them as a means of “ventilating the work
force.” By whatever name, it is clear that this activity was
intended, in essence, as a prophylactic measure, designed to
influence the employees against unionization if and when, the
Union started to organize at the two JFK hotels.
Nelson made his initial report to the Respondent on or about
May 5, and went out to California to do some consulting work
for another Company that was involved in a union organizing
campaign. On or about May 7, 2004, Nelson sent by e-mail, a
list of the employees’ concerns and complaints. (The Respon-
dent could not locate or retrieve this e-mail message).
The Union’s initial meetings in 2004 with the employees of
the two JFK hotels took place on May 20, 21, 22, 2004 at the
Radisson Hotel, which is right down the street. During that
period of time, numerous employees walked over to the Radis-
son after work and the Union solicited employees to sign au-
thorization cards. Given the number of people who attended
these meetings, it is probable that the Respondent’s manage-
ment was aware that something was going on.
On May 25, 2004, the Company held a meeting with its em-
ployees from the two JFK hotels and announced a group of
promises. These are reflected in General Counsel Exhibit 14
and include the following:
1. That all new hires who hadn’t yet received a $1.00 in-
crease after 90 days would be paid the increase on June 10,
2004.
2. That any employee who had worked overtime and had not
gotten properly paid would, after an audit, be paid the correct
amount on June 17.
3. That effective June 1, 2004, seniority would determine
work schedules, days off, vacation and holiday time.
4. That wage increases would be announced on or before
June 1 and become effective as of that date.
5. That the company would be re-installing, as of June 15,
2004, the program of matching up to 6% of the employees’
contribution to the 401(k) plan.
At some point during the meeting on May 25, some of the
employees began chanting that they wanted the Union. Ac-
cording to Respondent’s witnesses, this was the first time that
they had any knowledge of the Union’s organizing efforts at the
JFK hotels. But this is not likely and it nevertheless was con-
ceded that at least a month earlier, management already had
anticipated this union effort and had hired Quentin Nelson to
help deal with it.
On May 28, 2004, 3 days after the May 25 meeting, the Un-
ion filed its original petition in 29–RC–10220. That petition
asked for an election to be conducted in a combined unit of the
two JFK hotels. The petition was later withdrawn on June 15,
2004, because the parties agreed that there should be two sepa-
rate voting/bargaining units. Two new petitions were then filed
and elections were held on August 12 and 13, 2005.4
In early June 2004, the Respondent sent another letter to the
employees, this time taking back the promises that it had made
on May 25. The letter stated:
I have met with several of you over the past two weeks and
have indicated as of June 1st that we would restore the 6%
matching benefits under the 401K plan and we would in-
crease your wages. . . .
On late Friday afternoon, May 28, 2004 we received notice
that the Hotel and Motel Trades Council planned to file a peti-
tion with the National Labor Relations Board seeking a secret
ballot election to determine whether that union would have
the right to represent associates employed by the Hampton
Inn and the Holiday Inn. . . . As a result of the NLRB’s proc-
essing of that petition, implementation of the wage increases
and other changes we had announced would go into effect on
Tuesday, June 1, will be delayed.
We have been advised that the law does not permit us to make
the indicated changes in your wages, fringe benefits and other
working conditions during the period prior to the election. If
we did so, we would be accused of “bribing” associates in or-
der to influence the outcome of the election. Accordingly, we
must postpone making any of these changes. We are doing so
for the sole purpose of avoiding the appearance that we were
trying to influence either your decision on whether to support
the union or the election’s outcome. While it is our intention
to make these changes, regardless of the outcome of the elec-
tion, the collective bargaining process (if the union is voted
in) may affect our ability to do so.
We will notify you if, and when, the NLRB schedules an elec-
tion. Between now and then, you will have to decide for
yourself whether you are bettor off with or without a union.
This will be one of the most important decisions you will ever
be asked to make. I hope, after considering all of the facts,
you will make what we believe is the right decision and
choose to remain union free. I want to make my position
crystal clear to you: I am strongly opposed to a union in our
hotel.
In relation to the Hampton Inn, the only other incident that is
alleged to be a violation of the Act occurred in early July 2004.
Jessie Morris testified that she carried a bunch of union flyers
into the employee cafeteria and put them down on a table. She
testified without contradiction that later in the day, her man-
ager, Jennifer Cluden, called her into the office and asked if she
had been distributing flyers. Morris said that she did not and
that Cluden told her that if she distributed leaflets in the hotel
she would receive a written warning. In this regard, I note that
the employee handbook has a no solicitation/no distribution
rule that states:

4 On June 2005, I issued a Decision on Objections in Case Nos. 2–
RC–10237 and 2–RC–10238, JD(NY)-24-05), where I recommended
that the Employer’s Objections be overruled and that Certifications of
Representative be issued to the Union.
HAMPTON INN NY—JFK AIRPORT 23
Solicitation on the Hotel premises or distribution of literature
of any type is not permitted by non-hotel associates. Hotel as-
sociates are not permitted to solicit during their, or the solic-
ited associate’s working time. Hotel associates also are not
permitted to distribute literature during working time or in
working areas for any purpose.
III. ANALYSIS
The Respondent argues that the promises it made at the
meetings on May 25, 2004 were lawful because they were
made prior to the time that the Union filed a petition for an
election and prior to the time that the Employer became aware
of the Union’s attempt to organize the employees at the two
JFK airport hotels. In this regard, the Respondent relies on a
whole series of cases wherein the Board and the Courts have
held that in the absence of an explicitly stated quid pro quo, the
Board will presume that a promise or grant of benefit made
during a union’s organizing campaign or after an election peti-
tion has been filed will be presumed to be intended to influence
the potential voters in an NLRB election. NLRB v. Exchange
Parts Co., 375 U.S. 405 (l964); Baltimore Catering Co., 148
NLRB 970 (l964); Yoshi’s Japanese Restaurant & Jazz House,
330 NLRB 1339, 1344 (2000); B & D Plastics, 302 NLRB 245
(1991); Speco Corp., 298 NLRB 439, 443 (1990). This pre-
sumption of illegal interference can of course be rebutted if the
Employer can establish a legitimate explanation for the timing
of the grant of benefits and this usually consists of evidence
that they were part of an existing practice or that they were
planned beforehand.
But one need not look at the timing of the promises in this
particular case in order to show a presumption that the Respon-
dent’s intent was to influence its employees regarding their
union support.
The evidence unequivocally shows that the Respondent hired
Quentin Nelson, a labor consultant in April, because it was
already engaged in an election campaign involving this same
union at the Crowne Plaza Hotel. It is admitted that when Nel-
son discussed this situation with Respondent’s management,
they agreed that the Union would likely extend its campaign to
the JFK airports and that to meet this issue, the Respondent,
through Nelson, would solicit employee complaints which
would then be remedied. And this is precisely what happened.
During a 3-day period at the outset of May 2004, Nelson
canvassed the employees at the two JFK hotels and asked them
what their complaints were. While at it, he also showed them a
short video about unions. The employees responded and Nel-
son drew up a list of complaints and issues that he e-mailed to
management around May 7. This in turn, generated a series of
management meetings where the Company decided to remedy
many of the employee complaints, including reinstating the old
rate of payments to the 401K plan and the granting of wage
increases effective on June 1.
Mr. Nelson called this entire exercise an example of “venti-
lating the work force.” I would call it a course of conduct in-
tended to deter employees from seeking union representation.
Whether or not the Employer was specifically aware, as of May
25, that the Union had begun its organizational efforts at the
Hampton and Holiday Inns, there is no question that manage-
ment correctly anticipated that the Union would shortly com-
mence to organize the two JFK hotels. The promises were
clearly made in anticipation of a petition being filed by the
Union and in my opinion they clearly were intended to deter
employees from supporting the Union.
What is even cleverer is that once the Union did file its peti-
tion, the Respondent sent a letter to its employees telling them
that because of the petition, it had to delay implementation of
its promises because otherwise it could be accused of “bribing”
them. Well it already had bribed them in anticipation of a peti-
tion being filed, and its “retraction” could now serve as the
means to blame the Union for its failure to grant the wage in-
creases and other benefits that had already promised. This, in
my opinion was too clever by half and an example of someone
wanting to have his cake, while eating it. Having decided to
promise benefits in anticipation of the Union filing a petition,
the Employer could then tell the employees that they were not
going to get the promises because the Union filed the petition.
Some might call this clever. I call it a violation of the law.5
I also conclude that the Respondent violated the Act when it
warned Ms. Harris in early July. Notwithstanding the existence
of a no distribution rule valid on its face, the facts here show
that Harris simply brought a bunch of union flyers into the em-
ployee cafeteria, a nonwork area, and left them on a table. She
did not distribute this literature during work hours or in work
areas. The warning therefore was too broad and interfered with
employees’ rights to engage in appropriate union activity dur-
ing nonwork time, in nonwork areas. Willamette Industries,
306 NLRB 1010, 1017 (1992); Orval Kent Food Co., 278
NLRB 402, 407 (1986); and Teletech Holdings, Inc., 333
NLRB 402, 403 (2001).
CONCLUSIONS OF LAW
1. The Respondent, Field Family Associates, LLC d/b/a
Hampton Inn NY—JFK Airport, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. New York Hotel and Motel Trades Council, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By promising wage increases and other benefits with the
intention of dissuading employees from voting for or support-
ing the Union, the Respondent violated Section 8(a)(1) of the
Act.
4. By warning an employee that she would be subject to dis-
cipline because she brought union literature into the employee
cafeteria, the Respondent violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Because many of the employees

5 In my opinion the June letter to the employees, in these circum-
stances cannot be construed as a legitimate disavowal. Cf. Passavant
Memorial Area Hospital 237 NLRB 138 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
speak Spanish, I shall recommend that the Notice be in English
and Spanish.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended:6
ORDER
The Respondent, Field Family Associates, LLC d/b/a Hamp-
ton Inn NY—JFK Airport, its officers, agents, successors, and
assigns, shall
1. Cease and Desist from
(a) Promising wage increases and other benefits with the in-
tention of dissuading employees from voting for or supporting
the Union.
(b) Warning employees that they would be subject to disci-
pline because they bring union literature into the employee
cafeteria or in any other nonworking area.
(c) In any like or related manner interfering with, restraining
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action that is necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in New York, copies of the attached notice in English and

6 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.
Spanish, marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, or sold the business or
the facilities involved herein, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respon-
dents at any time since May 25, 2004.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”