Four Seasons Hotel

National Labor Relations Board - Administrative Judge Opinions

Nov 14, 2005

02-CA-036131 (N.L.R.B. Nov. 14, 2005)

JD(NY)–42–05
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

HOTEL 57 LLC d/b/a FOUR SEASONS HOTEL

and Case No. 2-CA-36131

SUSAN RAY, AN INDIVIDUAL

Joane S. I. Wong, Esq., for the General Counsel.
Judith A. Stoll, Esq., Kane & Kessler, New York, NY for the Respondent.

DECISION

Statement of the Case

STEVEN FISH, Administrative Law Judge. Pursuant to charges and amended charges
filed by Susan Ray, herein called Ray, the Director for Region 2, issued a Complaint on June
30, 2004, alleging that Hotel 57 LLC d/b/a Four Seasons Hotel herein called Respondent,
violated Section 8(a)(1) of the Act, by terminating Ray because she engaged in protected
activities. On October 19, 2004, the Acting Director issued an Order Amending Complaint,
alleging additionally that Respondent refused to hire Ray because she engaged in protected
concerted activities.

The trial with respect to these allegations was held before me in New York, New York on
November 3, 4, 5, 8 and 9, 2004. Briefs have been received and have been carefully
considered. Based upon the entire record, including my observation of the demeanor of the
witnesses, I make the following

Findings of Fact

I. Jurisdiction

Respondent a New York corporation with an office and place of business located at 57
East 57th Street, New York, New York, herein called Respondent’s facility, has been engaged in
the business of providing lodging and related service to the public. Annually, Respondent
receives gross revenues in excess of $500,000, and purchases and receives at its facility in
New York, New York goods and material valued in excess of $50,000 directly from suppliers
located outside the state of New York. Respondent admits and I so find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

II. Facts

Respondent is a luxury, five-star, five-diamond hotel, located at 57 East 57th Street, New

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York, New York. The hotel opened in 1993, and its rooms charge up to $800.00 per night. The
Respondent has operated a Spa and fitness center since its opening.

Approximately two-thirds of Respondent’s employees are members of the New York
Trades, AFL-CIO (the Union), where terms and conditions of employment are covered by a
collective bargaining agreement. Non-union employees of Respondent are covered by a
handbook known as Empact, which sets forth and obligations of employees including benefits,
standards of conduct, as well as a complaint and arbitration procedure known as C.A.R.E.

Individuals performing work at the Spa and fitness center included massage therapists,
esteticians (facialists), and nail technicians. All of these persons were classified by Respondent
as independent contractors. They signed independent contractor agreements, received no
fringe benefits from Respondent, and were paid on a commission basis. The parties litigated
extensively the issue of employee status of massage therapists, the position held by Ray. The
evidence revealed several areas of conflicting testimony, such as discipline and scheduling. I
have not detailed these facts, nor have I set forth additional undisputed evidence concerning
employee status since I have concluded that I need not resolve this issue.

Thus while the complaint does allege that Respondent terminated Ray because of her
protected conduct, it also alleges alternatively that it refused to hire her, for the same reasons,
at around the same time. Since the issues and analysis concerning both allegations are
essentially identical in the circumstances herein, and the remedy for a violation is essentially the
same, I do not deem it necessary to decide the issue of employee vs. independent contractor
status of the massage therapists.1

Ray began working at the Spa in 1996 as a massage therapist. Over the years, Ray, as
well as a number of other therapists had from time to time, complained among themselves and
directly to various supervisors that they felt that they should be employees of Respondent and
should be receiving benefits. The response from supervisors would be that they were aware
that the employees wanted to be employees, but the Hotel considers them to be independent
contractors and that is it. No action was taken against Ray or any other employee for these
inquiries and complaints. On December 4, 2002, Respondent informed the massage therapists
that it intended to commence a complete renovation of the Spa, to commence sometime in
2003. Respondent asked the therapists at the meeting for feedback with respect to some
handouts concerning the conditions of the massage therapists.

After this meeting, the massage therapists, including Ray, began talking amongst
themselves, concerning issues such as how the new Spa would affect them in various ways,
such as schedule, training, pay and hours. They also began to discuss whether they would be
employees when the new Spa opened or would remain as independent contractors.

In that regard, in May of 2003, Ray began to do research on the Internet concerning the
issue of independent contractor versus employee. Some of these documents convinced Ray
that the massage therapists working for Respondent might well be employees, and that they
should be paid for down time.2
Continued
1 While there is some differences in the analysis of discharge allegations versus refuses to
hire allegations, none of those differences are relevant or in dispute here. The sole issue to be
decided is the motivation for Respondent’s decision to either terminate or refuse to hire Ray.
2 At that time, although the massage therapists were considered independent contractors by
Respondent, they were subject to a schedule. Although part of the schedule included on call

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_________________________
Ray distributed these internet articles to her fellow therapists, and they discussed among
themselves going to a lawyer to see about the possibility of filing suit for back pay. Ray
volunteered to consult with a lawyer and report back to the other therapists. These discussions
in the spring of 2003 took place in the cafeteria. While Ray testified that at times, supervisors
would be present in the cafeteria during these discussions, she did not know whether any of
them heard the discussions amongst the employees.

Meanwhile, on June 1, of 2003, Respondent entered into a contract with Inova
Group, a Spa development management and operations consultant practice. Inova had
performed work for Four Seasons Hotels in other cities to assist in restructuring their Spa and
retraining the Staff. Inova performed numerous functions under the contract, including
consulting on design concept, revision of floor plans, market analysis, choice of products and
treatments, arrangements with vendors, purchases of equipment, recommendations with
respect to staffing levels and schedules, training of the staff, recommending compensation
levels, interviewing prospective employees and making recommendation on whom to hire.

The two partners of Inova were Joe Conant and Diane Hess, who were at the Hotel from
June of 2003 through and after the opening of the new Spa on September 15, 2003.

Inova also employed Noel Labak who was the Spa manager at the Four Seasons Hotel
in Chicago, to assist in the training of massage therapists. In that connection Labak trained and
taught the modalities required to execute the treatments required by the massage therapists.
Further, he conducted several technical interviews of massage therapists in connection with the
process of employment applications and made recommendations as to which individuals should
be hired. As will be discussed more fully below, he conducted the technical interview of Ray,
before she was rejected by Respondent for hire.

In either June or July, Conant met with each of the message therapists working at the
Spa. In his meeting with Ray, Conant informed her that he was a consultant for the Hotel and
would oversee the training and running of the new Spa. He asked if Ray had any questions.
Ray inquired about whether she could keep the same shift and whether the massage therapists
would remain independent contractors or be converted to employees, since she believed that
the therapists were already employees, and had been misclassified for years. Conant
responded that he agreed that the therapists should be employees, and that he would so
recommend to Respondent. He added that since the therapists would be required to learn all
the protocols and have set schedules, that they should be considered employees. However,
Conant added that the Hotel would have to make that decision, and he was not sure that there
was sufficient time to make the change, since the focus would be on training.3

During Conant’s meeting with message therapist Mary Dolshun, Conant informed her
that all therapists would have to be familiar with all the protocols. Dolshun asked what happens
individuals, some therapists would be required to be on site for various periods of time, even
though they had no assurance of a massage. Since they received no pay absent a massage,
there were times that therapists would be required to be at the Hotel, and received no pay. This
was a significant complaint of therapists, including Ray.
3 The above findings based on compilation of the credible portions of the testimony of Ray
and Conant. I specifically do not credit Conant’s testimony credibly denied by Ray, that she
criticized supervisors Sharon Brambrut during this meeting. I find it unlikely that Ray would
make such comments about Brambrut to a person whom she was meeting for the first time.
Further the record is undisputed that Ray and Brambrut liked each other and always got along.

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if someone doesn’t want to or cannot do a particular treatment. Conant replied, “If somebody
doesn’t want to do it, then we’ll just get somebody else. You just can’t work here.” Dolshun did
not make any response.

Subsequently, it was announced that training for the new Spa would commence on
August 25, 2003, and all massage therapists would be required to attend and to learn all the
protocols and modalities. The therapists continued to meet and to discuss the ramifications of
the new Spa. They talked about the possibility of becoming employees and obtaining benefits
such as health benefits, comp nights at other Four Seasons Hotels, holidays and sick days.
Ray mentioned her internet articles and again mentioned the possibility of seeing a lawyer. The
therapists authorized Ray to meet with a lawyer on their behalf, and also encouraged Ray to ask
questions on their behalf at the upcoming training sessions, about compensation and other
employment issues.

On August 20, 2003 Ray met with a lawyer. The lawyer discussed the possibility of a
lawsuit with Ray on behalf of the therapists, but wanted a $5,000 retainer. This was not
acceptable to the therapists, so Ray decided to meet with another lawyer.

The training began as noted on August 26, 2003. Ray was talking with fellow therapist
Reiko _______ about the fact that there was an Ad placed by Respondent in the New York
Times for massage therapists. Brambrut was present, and Ray asked her if Respondent was
hiring massage therapists. Brambrut replied “Yes.” Ray asked if the new hires would be
employees or independent contractors. Brambrut answered that they are going to be
independent contractors. Ray inquired if they will be paid for their down time. Brambrut replied
“No,” and added that “if people want to volunteer their time to wait, that’s up to them.” Ray
stated that she did not think its legal and she believes that the Labor Department considers it
illegal to coerce them “to stay and work with a threat.” Brambrut made no response and began
to walk away. Reiko then stated, while Brambrut was still in their presence, “oh Sue Ray, very
good you sound like a lawyer.”

At around the same time, Ray obtained some more information from the Internet
including an article about Microsoft, and a lawsuit finding that Microsoft had misclassified
individuals as independent contractors, and owed “a small fortune to its misclassified workers.”
Ray shared this article with some of her fellow therapists. On September 8, 2003, Ray met an
official of a Union, (Local 6) named Amanda Bell, and discussed the possibility of unionizing the
therapists. Bell informed Ray that she also felt that the therapists were misclassified and that
she had just unionized some massage therapists, and felt that they should unionize right away.

On September 9, 2003, Ray met with another laywer. He told Ray that he would be
willing to represent the therapists on a contingency fee basis. However, Ray was not impressed
with the way he “sounded or seemed.”

On September 10, 2003, Ray met with most of the massage therapists in the cafeteria.
She reported to them on the results of her meetings with the lawyers and the Union. The group
decided that since Ray was not impressed with the second lawyer, and the first lawyer wanted
money up front, that she would meet with a third lawyer. In fact Ray had already obtained a
third name from the Internet, and had an appointment scheduled. The record does not reflect,
what if anything the therapists decided to do about the Union at this meeting.

According to Ray, while this meeting on September 10 was conducted, several
representatives of management, including Brambrut, Conant, and Hess were present in the
cafeteria at another table, about 20 feet away from where the massage therapists were having

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their discussions. While Ray characterized the supervisors as within “earshot” of the
conversations among the massage therapists, Ray admitted that during the conversations, “we
were like ‘shhh!’ as were talking about it because we didn’t want to let them know that we were
actually considering taking any action.” She also admitted that the managers were talking
among themselves, that there were other people in the cafeteria between managements table
and the therapists table, and that she did not notice if the managers were paying any attention
to her table.

Mary Dolshun testified about another conversation in the cafeteria between herself, Ray
and employee Kelly Cummings sometime in late August of 2003. According to Dolshun,
Yvonne Mancini, Respondent’s Director of Human Resources, was sitting at another table in the
cafeteria, having soup, three feet away from the therapists table. Dolshun also asserts that it
was late afternoon, and the cafeteria was relatively empty. Dolshun contends that Ray began
talking loudly about the fact that she had talked to a lawyer and someone in the Union, and what
rights the therapists might have and what benefits they might be entitled to receive. Dolshun
further asserts that she noticed Mancini sitting at a nearby table 3 feet away, and said to Ray
“you know Yvonne Mancini is right here. I really don’t want to discuss this right now.” Ray
allegedly replied, “I really don’t care if they know that I’m going to lawyers and I know my rights.”
Notably, Ray did not furnish any testimony concerning this alleged incident. Dolshun also
conceded that Mancini’s back was turned to the therapists during the discussion, and that she
only “assumed” that Mancini could hear what was being said by Ray.

Mancini, Conant and Brambrut all testified that they were unaware of Ray going to see
lawyers on behalf of other therapist’s or that she had gone to the Union. They further deny
overhearing any conversations of therapists in the cafeteria, during which these subjects were
discussed.

The training for the massage therapists began on August 26, 2003. The morning
sessions were conducted by Conant and Hess, while Brambrut was present at times. The
training included other Spa staff as well as massage therapists. Conant would discuss the
particular product involved and introduce the vendor, who would explain their products and how
to use them. In the afternoons, specific training sessions were held for each profession.

During the morning meetings, prior to the vendor being introduced, Conant would
entertain questions and comments from the staff about various issues. The first two meetings
were held on August 26 and 28, 2003. At that time, no decision had been made concerning
employee status after the changeover to the new system, nor had decisions been made as to
compensation or scheduling. Therefore there were numerous questions about these matters
from many of the therapists, of which Ray was the most vocal and most persistent. Most of the
time, Conant would not be able to answer these questions, since no decisions had not yet been
made by management. Therefore he would respond to these inquires by telling the therapists
that Respondent was “working on it” or “I can’t answer that,” or that Mancini should be spoken to
about the particular issue. A number of therapists including Ray were upset with Conant’s
failure or inability to answer their inquiries, and would make comments such as “that sucks”,
when Conant would not or could not respond to their concerns. Ray also asked a question
about client cancellation policy, and told Conant that Respondent presently had a two hour no
cancellation policy. Conant replied “oh no, if clients cancel you don’t get paid for that.” Ray
replied that she thought that wasn’t fair. Conant turned his back to Ray at that point, and did not
respond.

Conant began to get somewhat frustrated by the repeated questions and comments by
Ray, as well as other therapists. He felt that the training was being delayed, since he was

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compelled to discuss therapists’ complaints and questions, rather than being able to proceed
with introducing the vendors and continuing the training. He would tell the therapists to “stay
focused,” but made no specific request to Ray or any other therapists to stop asking questions
or making comments, so that training can proceed.

Conant also mentioned during the first two meetings that all the therapists would be
required to learn and perform all the treatments offered at the Spa, and in the same manner as
prescribed in the protocols. A number of therapists including Ray made complaints about these
requirements, as being restrictive of therapists’ individuality and akin to “cookie cutter”
massages.

On August 29, 2003, Respondent held a meeting with the entire Spa staff, including the
therapists. Mancini conducted the meeting, and informed the staff that under the new structure,
the therapists would be employees of the Hotel with regular schedules, either full-time, part-time
or on call. They would be required to be on premises at all times during their scheduled shifts.
She explained that shifts would be 6 ½ hours long with a 30 minute break. Mancini also
informed the staff that as employees they would be required to punch in and would be provided
with a uniform.

Mancini explained benefits eligibility and distributed a handout discussing information
concerning the benefits available for which types of employees. (i.e full-time versus part-time.)

Mancini announced that compensation would be a percentage of rates for various
massage services, but with a guaranteed minimum of $11.00 per hour. A number of therapists
including Ray had questions about these issues, which were answered by Mancini or Conant.
Ray as well as others were upset with the compensation, and expressed the opinion that the
therapists should receive the $11.00 per hour pay, plus their commission. However,
Respondent’s officials replied that the $11.00 would be only a minimum guarantee, to be paid
only if therapists did not receive commissions of $66.00 per day.

Mancini, also distributed applications to all the therapists and informed them that since it
intended to open the new Spa on September 15, that the applications should be completed and
submitted by September 2, 2003. She added that after the submissions, applicants would have
personal and technical interviews.

After this meeting, training continued through mid September and thereafter. The
procedure would be the same. Conant and Hess would conduct the meeting, and introduce the
product and the vendors to explain their products. Once more, prior to the vendor being
introduced, therapists would have questions or comments about work related issues such as
compensation and scheduling. Once again, Ray was the most outspoken and persistent of the
therapists, and would ask more questions than any of the other therapists. As was the case in
the training prior to August 29, 2003, Conant felt that the frequent questioning and comments by
Ray, and others was delaying the training, so he would respond that he didn’t have the answer,
lets save it for later, or we’re talking about something else now. He would also again remind the
therapists to “stay focused,” but did not at any time address himself specifically to Ray, or
instruct Ray personally to stop asking questions, or making comments. There were times
however, when Ray would respond to Conant’s inability to answer that “I understand you don’t
want to answer, but it is important for us to get these answers at some point.” During one of
these meetings, Ray posed a question to Conant and he responded. Ray then replied, “I have
gone to lawyers about that. I do know about this. Because I have talked to lawyers.”

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On or about September 9 or 10, while Conant was conducting another training session,
Ray asked Conant how Respondent established the $11.00 an hour minimum compensation
rate. Conant replied that “Human Resources had established what was fair in the market.” Ray
persisted and asked how is that fair, and asked if Respondent used New York City rates, where
the cost of living is high or internationally? Conant answered that he did not know and
suggested that Ray ask Mancini or HR that question. Ray insisted that $66.00 per day is not
fair for New York City, and it is also not fair that if the therapists have treatments on their shifts,
their hourly pay would be canceled, which Ray characterized as the same as before, and not
like “an employee situation.” Conant responded that “the therapists should not worry, because
they will be receiving tons of massages.”

Ray then asked how vacation will be computed, and Conant answered $66.00 per day
pre-tax. Ray stated “where are we going to go in the world on less than $66.00 per day?”
Dolshun chimed in, “the only place you can go is Bali or a third world country. Where are you
going to go on vacation on less than $50.00 a day?”

Some of the therapists began to laugh. Ray then said to Conant, “it’s easy for you to
say, because you don’t make $11.00 per hour.” At that point, nearly everyone, including
therapist Keith Lovinggood started laughing. Lovinggood then stood up, made a “thumbs down”
gesture, and began to “boo” for about 15 seconds. Ray stood up, but did not make a “thumbs
down gesture” or “boo.” However, Ray seeing that Conant began to get red in the face and
appeared to be upset, tried to apologize by saying to Conant, “I mean no disrespect, you
misunderstand me. But these are important things for us to know. This is our livelihood.” Ray
also said to Conant “we’re just trying to figure out what’s going on and we need to know
information.” Mary Dolshun added that “these are important issues and we all made sacrifices.
We’ve been patient for answers and decisions.”

The above findings concerning the events at the meetings in August and September of
2003, is based on a compilation of the credited portions of the testimony of Ray, Conant,
Brambrut and employee Mary Dolshun. For the most part, where the record reveals conflicting
testimony between Dolshun and Ray and Conant and or Brambrut, I have credited Dolshun and
Ray. I note particularly that Dolshun is a current employee of Respondent, and her testimony is
more worthy of belief. Meyers Transportation, 338 NLRB 458, 468 (2003); Stanford Realty, 306
NLRB 1061, 1064 (1992); Georgia Rug Mill, 131 NLRB 1304, 1305 fn.2. (1961).

Additionally, I found Conant’s testimony has demonstrated a tendency to exaggerate on
cross examination, and his testimony at times inconsistent with that of Respondent’s other
witness, such as Brambrut and Mancini, particularly whether Conant recommended that
Lovinggood be terminated. Finally, I note the absence of any testimony from Hess, who was
present at all of the meetings. I therefore do not credit Conant’s testimony that Ray “interrupted”
vendors while they were speaking, or that she was continuously talking with other therapists
while he and or vendors were speaking. I also do not credit his testimony concerning the
alleged statement made to him by a vendor, allegedly complaining about Ray’s behavior.
Further, I find, contrary to Conant, that the incident involving Lovinggood’s “thumbs down” and
“booing,” took place on September 9 or 10, rather than prior to August 29, as testified to by
Conant. In that regard, since the incident was precipitated by a discussion of Respondent’s
proposed $11.00 per hour payment for minimum compensation and vacation, it could not have
taken place prior to August 29, since Respondent had not announced such figures until the
August 29 meeting.

On the other hand, I do not credit Dolshun that the $11.00 payment was not announced
until the September 9 or 10 meeting. I note that Dolshun was not present at the August 29

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meeting, and even Ray conceded that the $11.00 compensation was announced and discussed
at that meeting.

Further while Ray denied that she stood up in support of Lovinggood when he made the
“thumbs down” gesture, I credit Conant and Brambrut that she did so. I note that Dolshun did
not support Ray’s denial that she had stood up at the time. Although both Ray and Dolshun
testified that they didn’t recall Lovinggood “booing” during the incident, their testimony was
equivocal and uncertain on this issue. I therefore credit the mutually corroborative and clear
testimony of Conant and Brambrut that Lovinggood did in fact “boo” while he gave a “thumbs
down” gesture on September 9 or 10, 2003.

On August 30, 2003, Ray submitted an application for a part-time position. She
requested various shifts mainly in the afternoons and evenings, from Friday through Tuesday,
with Wednesday and Thursdays off. On or about September 3, Ray was interviewed by Yvonne
Mancini, and separately by Hess and Brambrut.4

During the interview with Mancini, they discussed issues of pay, scheduling and when
the therapists would know when they would be hired. Mancini stated that no decisions had
been as yet concerning when therapists would be notified of their hiring. After the close of the
interview, Mancini filled out a portion of Respondent’s interview form. Mancini rated Ray
satisfactory under the categories service passion, professionalism, ethic for work/integrity, and
communications skills. Mancini under comments wrote, “stated BBI,5 answers clearly, she
communicates matter-of-factly, not demonstrating too much warmth, seems goal oriented.
Grooming concern. Hair not held back, very relaxed.” Mancini also checked off “at risk” in the
recommendation section of her portion of the form.

Mancini testified that Ray appeared at the interview with her hair “disheveled,” and not
held back. While Mancini admitted that there was no requirement that therapists have their hair
“held back,” she felt that Ray’s failure to wear her hair back during the interview showed a lack
of seriousness in the interview. Mancini further testified that she marked “at risk” on the form for
Ray, because she felt that Ray was not warm during the interview and her answers were
“robotic” and “disengaged” and Mancini had questions about Ray’s ability to fit in with the “Four
Seasons culture.”

Mancini also testified that she had previously been informed by both Conant and Hess
that they were unhappy with Ray’s conduct during training, and that Ray would be repeatedly
asking questions over and over, which Conant could not or would not answer, and that this
seriously delayed training. Mancini was also informed at some point, about the incident with
Lovinggood, and that Ray had stood up in support of Lovinggood when he made a “thumbs
down” gesture and “boo’d” Conant.

However, none of these reports, according to Mancini, were considered by her when she
wrote “at risk” on the form.

Ray also interviewed with Hess and Brambrut. Ray was informed by Brambrut the
evening before at 10:00 P.M. that the interview was scheduled for 10:00 A.M. the next morning.
Ray replied that she didn’t have her interview clothes ready, and would be in training at 9:00
4 The record is unclear to which interview came first.
5 BBI refers to Behavior Board Interviewing, which are questions used in interviewing all
Four Seasons prospective employees.

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A.M. the next morning. Brambrut responded that “don’t even think about that.” It’s going to be a
quick informal interview. We just want to get this done, and everyone knows that all the
therapists are dressed down because they are practicing body treatments and they are
practicing massages.” Ray replied, “Sure, if you don’t mind, I don’t mind. 10 o’clock is no
problem.”

Ray met with Brambrut and Hess in a storage room, dressed in a t-shirt and jeans. Ray
began by apologizing for her casual attire, stating that she had no time to change. Hess asked
Ray how she felt about the changes in the Spa. Ray replied that she was a little concerned
about things, “but I’m willing to stick it out.” The concerns she expressed were about pay and
whether Respondent had already decided on whom to hire. Hess and Brambrut both replied,
“no, everyone has a fair chance.”

Ray also complained that the situation is the same as when the therapists were
independent contractors. Hess replied “not really since the employees will get benefits.” Ray
responded that “only full-time employees will receive benefits.” Hess answered that “even part-
time employees would receive room privileges at other Four Seasons resorts.” Ray continued
to insist that “at least for the part-time or on call employees, the situation was really the same as
the independent contractor situation. Ray added that she believed that the therapists had been
employees the whole time. Ray informed Hess and Brambrut that she used to work as a
paralegal at the Proskauer law firm, and that she had seen a memo on Proskauer’s online site
written by one of their partners about the importance of classifying employees properly. Ray
added that she had thought that Respondent was represented by Proskauer, and that she was
surprised that Respondent was not taking that very seriously.” Neither Hess nor Brambrut
made any comments about or response to these statements by Ray.

Hess and Brambrut asked if Ray liked the products. She replied that she liked them, but
she was a little concerned with some of the treatments because Respondent was making them
shorter, and they were more “fluff” treatments. She added that she did not know how the clients
were going to respond, but “I’m giving you my application because I’m willing to stick it out.”6
Most of Ray’s testimony wasn’t contradicted by Brambrut, but to the extent that Brambrut’s
testimony differs from Ray as to the interview, I credit Ray. Brambrut’s testimony that Ray
called the treatments “ridiculous,” and gave her the impression that she was not willing to give
them a try is not credited. Such testimony is contradicted by her comments on the interview
form, which makes no such assertion, and which does state that Ray “is excited about the new
changes.”

The portion of the interview form filled out by Brambrut, in addition to stating that Ray is
“excited about new changes,” also states that Diane (Hess) “is concerned about strong
personality characteristics.” Brambrut did not explain what Hess meant by this comment and
Hess did not testify. Brambrut did testify that after the interview, Hess told her that she (Hess)
felt that in all of her interactions with Ray including the interview process, that Ray was “very
negative” towards the new Spa. However they did not discuss at that time whether or not either
of them were going to recommend that Ray be hired. Brambrut admitted that at that point she
had not made up her mind whether or not to recommend Ray’s hire.

On the interview form, Brambrut also noted that Ray “is a great therapist, who is good at
handling difficult situations, concerned about her loyalty to the company.” According to
Brambrut what she meant by loyalty to the company is that she believed that Ray was “very
6 The above description of the interview is based primarily on the credited testimony of Ray.

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negative” towards the changes, towards being part of the company, towards being part of the
team.” Brambrut also put a question mark next to the category on the form, “team player.”
When asked why she made that question mark, Brambrut replied, “I think that I put the question
mark there because I felt that that was questionable, but I am not sure.”

Moreover, on the same form, Brambrut checked the following dates in the multiple
choice area:

Is comfortable with more than one approach to his or her
work; is willing to try and adopt new ways of doing things.

Ray received a technical interview from Noel Labak. Labak had been informed by
Conant prior to the technical interview that Ray had been giving Conant “a hard time” during
training, by asking a lot of questions and being “disrespectful” to Conant.

During the technical interview, Ray demonstrated her ability to give massages, and it did
not take Labak long to discover that Ray was “a great therapists,” and that she had “great
hands.” However, while she was giving Labak a massage, Ray talked constantly, expressed
resentment towards Inova, the Hotel and the planned changes in the Spa. Ray informed Labak
that she did not like the idea of working a set schedule and being required to be at the hotel for
an entire shift. Ray also said that some of the treatments that the therapists were being
required to learn were “silly,” that she did not like some of the treatments, didn’t want to do
some of them, and that she “wanted to do her own type of massage.” Ray told Labak that “she
likes doing her massage, and that’s what she would do.” She also pointed out to Labak that “no
one would know what I was doing in the room.”

The above findings with respect to the technical interview is based on the credited
testimony of Labak. While Ray adamantly denied making any of the quoted comments to
Labak, I do not credit such denials. I found Labak to be an extremely credible witness, who
testified consistently on direct and cross examination. Further I believe that he felt
uncomfortable about giving adverse testimony concerning a “great therapist,” was testifying
truthfully to best of his recollection. While I have credited Ray in other portions of her testimony,
particularly where it was corroborated by Dolshun, I cannot and do not do so here. I find it
unlikely that Labak would simply make up these comments that he attributed to Ray, and find
that Ray feeling relaxed during the interview and knowing that Labak was satisfied with her skills
in giving a massage, confided to him her true feelings about the treatments. I note in this regard
that Ray admitted that she did not like some of the treatments, and felt as did many other
therapists that they were “fluff” and or “cookie cutter,” and the requirement that they all be
performed in a specified way interfered with the individuality and creativity of the therapists.

After the technical interview, Labak informed both Brambrut and Conant, that although
Ray was a great “technical” therapists, he believed that she should not be hired, because of the
comments that she made to him about not wanting to perform all the treatments, and not
wanting to do all the protocols. He also told them of Ray’s remark that “no one would know
what she is doing in the room.” As Labak testified, “for me this was a red flag because it’s very
important that when a client comes in and has a specific massage that has a specific description
and protocol, that that is the treatment they get.”

All of the approximately fourteen massage therapists working for Respondent submitted

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applications for employment, either for full or part-time positions.7 Respondent’s officials met
on or about September 10, 2003 to decide which of the therapists will be hired when the Spa
opened on September 15, 2003. Present were Conant, Hess, Brambrut, Mancini and Thomas
Steinhauer, Respondent’s General Manager. The group went over each applicant one by one.
Comments were made by the participants about the applicants, and recommendations were
made whether or not to hire each applicant. The ultimate decision was made by Steinhauer,
who said very little, other than to sign off on the consensus decision reached by the other four
participants.

All of the applicants whose applications were considered were hired,8 except for Ray
and Lovinggood.

With respect to Ray, Conant, Hess, Brambrut and Mancini all recommended that she not
be hired. The reasons expressed at the meeting by these four individuals included Ray’s
disruption of training sessions by continually asking questions and making comments, the belief
of the participants that Ray would not agree to follow the protocols, based primarily on her
statement to Labak, and finally her grooming. Steinhauer did not indicate which if any of these
reasons he considered most significant or determinative, but merely said that it is unanimous
that Ray not be hired, and approved that action.

Conant, Brambrut and Mancini all testified to their reasons for recommending that Ray
not be offered employment.9

According to Conant, he concluded that Ray not be hired because of her negative
attitude toward the hotel, which he conceded included “disruptions” during training. However he
stated that since other therapists “did that too”, that wouldn’t have been the deciding factor.
“The deciding factor for me was that she stated very clearly that she did not feel that she had to
fulfill the requirements of doing the protocols as written. And that she was going to --- inside the
treatment room it’s just her and the guest, nobody else is going to know whether she is doing
the protocol or not, and that she was going to do things the way she wanted to do them.”

Conant also detailed more specifically that by disrupting the training process, he meant
that Ray disrupted meetings by talking about and asking questions about problems, which
interfered with his presentation. As Conant further explained he had previously complained to
Mancini and Brambrut, “Sue Ray disrupted this. We haven’t even gotten to this yet because
she’s just talking about....”

Conant did admit that he was upset about the incident involving Lovinggood, but claims
that he did not blame Lovinggood’s conduct on Ray. However, Conant concedes that he did
mention to Mancini when reporting the incident that Ray had stood up along with Lovinggood
while he “boo’d” and made a “thumbs down” gesture. Further, Conant testified that he believes
that Lovinggood was being influenced by Ray. Conant testified that although he felt that
Lovinggood was unprofessional during training, particularly in the above described incident, but
7 The record reflects that one therapist, Reiko _________ subsequently withdrew her
application.
8 As noted, Reiko withdrew her application so she was not discussed.
9 As noted, Hess did not testify. However the record discloses that at the meeting, the only
reason mentioned by Hess for her recommendation, was Ray’s “disruptive behavior” at the
training sessions. Hess made no mention of Ray’s statement that she would refuse to perform
some of the protocols.

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that he believed that “Keith was following Sue Ray’s example. Keith was really sort of like
getting his negative... sort of bouncing his and feeding off of Sue Ray. And if Sue Ray was
removed, a lot of that negativity may go away,” Indeed, as noted above, Lovinggood’s conduct
in “booing” and making the “thumbs down” gesture, was precipitated and preceded by Ray’s
complaints about Respondent’s proposed vacation and compensation payments to the
therapists.

Brambrut testified that it was hard for her to make the decision not to recommend Ray
for hire, because she liked Ray as a person. However, Brambrut felt that Ray was not
interested in being part of the “Four Seasons culture,” and “I didn’t think that she would be a
positive force in this new environment, this new Spa.” Brambrut also relied on Ray’s “negative”
conduct at the training sessions. Brambrut explained what she meant by Ray’s “negative”
conduct. Brambrut stated that Ray’s questions “weren’t asked in a professional manner.” When
asked to explain further the transcript reveals the following:

The Witness:

I guess that they were more ..., I couldn’t give you an exact
sentence, but I think that they were more statements, like there
was the late night question about what late night starts. Because,
it was to start at nine, and then it started at ten. And, I think one of
the questions was, well, like, “you’re not really going to change the
time,” or, you know, just in that nature, more
of a ... negative sort of statement as opposed to an actual
question.

Judge Fish:

So, what you’re saying is that rather than asking a
question, she would be making a comment, that ....

The Witness:

Right.

Judge Fish:

... Which would be critical of the way Four Seasons was
contemplating doing things.

The Witness:

Right.

Judge Fish:

Is that right?

The Witness:

Right, yes.

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Judge Fish:

And that was negative in your view.

The witness:

Yes.

Mancini testified that she recommended that Ray not be hired because “we cannot have
someone in the hotel, who isn’t even before the fact, willing to comply with what our ... our
standards of procedures would be.” Mancini also admitted that she considered the reports and
recommendations from Conant, Hess and Brambrut that Ray had engaged in disruptive
behavior at training sessions and had held up the training by asking too many questions.
Mancini further elaborated on her view of Ray’s conduct in asking questions during training. “It
was the manner in which she continuously just ... just didn’t let go of some of the questions.”

As noted neither Hess10 nor Steinhauer testified. As also noted, after Conant, Hess,
Brambrut and Mancini all recommended that Ray not be hired, Steinhauer signed off on the
collective decision by stating:

All right, you know, it seems that we have come to a
determination that Sue Ray is not going to be hired for the Spa.”

While Respondent’s witnesses all agree that Lovinggood is the only other therapist
whose application was considered and rejected, they disagree as to whether Conant
recommended that Lovinggood not be hired. Conant contends that he was “on the fence”
concerning Lovinggood. He contends that when Lovinggood’s name was brought up, Hess
recommended that Lovinggood not be hired because of his conduct in disrupting training, i.e.,
the incident involving the “thumbs down” and “booing,” and that she (Hess) did not know if he
was going to follow the protocols or not.11

Conant contends that he stated that if Ray were removed, Lovinggood “wouldn’t be so
negative. He wouldn’t have that person that he’s sort of feeding off of.” As related above,
Conant testified that he said that although Lovinggood was unprofessional in the training,
(mentioning the “thumbs down” incident) he believed that Lovinggood was bouncing off and
“feeding off of Sue Ray, and if Sue Ray was removed, a lot of that negativity may go away.
That was my recommendation.”

Conant further testified that he did not recall either Brambrut or Mancini say anything
about Lovinggood, and that in fact he didn’t recall a decision being made concerning
Lovinggood at the meeting. Conant asserts that he was informed after the meeting by Hess,
that Lovinggood had been informed that he wasn’t being hired.12
Continued
10 While Hess did not testify as to her reasons for recommending not hiring Ray, the
testimony of Conant, Mancini and Brambrut reveal that Hess focused on Ray’s “disruptive” and
“negative” conduct during training, and also made some reference to Ray’s grooming, i.e., her
hair.
11 Conant did not specify why Hess believed Lovinggood might not follow the protocols, or
whether Hess gave any reason at the meeting why she so believed.
12 Indeed Conant also testified, contrary to the testimony of Brambrut and Mancini, and
contrary to my findings above, that no decision was made concerning Ray at the meeting and

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_________________________
On the other hand, both Brambrut and Mancini testified that Conant as well as all the
other participants recommended that Lovinggood not be hired and that the decision was made
at the meeting. Brambrut testified that Conant brought up the “thumb down” incident and stated
that Lovinggood was negative and had disrupted training by asking inappropriate questions and
mentioned his hostility towards the new changes. Brambrut also asserted that Lovinggood had
expressed to her, as well as to Hess and Conant that Lovinggood wasn’t interested in learning
the standardized treatments.

Mancini also testified it was a unanimous decision not to hire Lovinggood. Mancini
contends that Hess and Conant stated that while Lovinggood’s technical abilities were good,
they were not great. Further both Hess and Conant said that they were very disturbed by
Lovinggood’s demonstration of “thumbs down” and “booing”, which showed disrespect and
unprofessionalism, and inappropriate behavior. Further they contended that Lovinggood “didn’t
really buy into the changes that were necessary” to move forward in the Spa. Thus, based on
these reasons, according to Mancini, a decision was made that Lovinggood not be hired.

Neither Mancini nor Brambrut recalled that when the discussion at the meeting ensued
concerning the “thumbs down” gesture and “booing,” by Lovinggood, whether it was mentioned
that Ray stood up during that incident. However, as related above both Brambrut and Mancini
were aware that Ray had done so. Brambrut observed the incident, and Conant reported it to
Mancini, including the fact that Ray had stood up, along with Lovinggood while he was “booing”
and making the “thumbs down” gesture.

Conant also provided testimony concerning the discussion of Dolshun at the meeting.
According to Conant, he initially suggested that Dolshun not be hired, “because she was very
verbose, and she’d talk during the service.” He added that Dolshun would be “dissatisfied with
things, she would listen to what I had to say and she would express herself again.” However,
Conant further testified that Hess and others at the meeting “expressed positive things” about
Dolshun. Therefore, Conant changed his opinion to being “on the fence” with respect to
Dolshun, and Dolshun was eventually hired. Neither Brambrut nor Mancini furnished any
testimony concerning the discussion at the meeting about Dolshun.

On September 11, 2003, Ray was escorted into Mancini’s office by Hess. Mancini
informed Ray that after evaluating all the information, Respondent had decided not to hire her.
Ray replied “you’re firing me?” Mancini responded “no we’re not. You’re just not being hired.”
Ray answered, “I don’t care what you call it, Yvonne, you are firing me. I’ve been here for eight
years.”

Mancini stated that it had nothing to do with her massages, adding “you give a great
massage.” Ray pressed for a reason. Mancini answered, “It has to do with your attitude, your
demeanor and your grooming.” Ray questioned the grooming comment, and stated that after
eight years with the same hairstyle, Respondent suddenly decided that they don’t like her hair
and it’s not “Four Seasons standards.”13 Ray then commented, “in reference to my attitude, the
real reason why I feel like I’m sitting in this room is because I’ve been questioning the legality of
the employment practices, and you don’t like it.” Mancini replied “that’s not the case,” that it was
because of her negative attitude and demeanor. Hess then interjected that Ray was
“disrespectful to Joe in the meetings?” Ray asked, “How so?” Hess responded, “You shouldn’t
that he was informed by Hess after the meeting that Respondent had decided not to hire Ray.
13 In that regard, Dolshun corroborates Ray’s testimony that Ray had essentially the same
hairstyle for at least six years.

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have asked him questions about money in the meetings.” Ray answered “It was a meeting
about the changes in the Spa. It’s just the forum to ask questions about salary changes as
well.” Hess added, “You should have pulled him aside and asked him independently alone.”
Ray retorted “Why? The questions had to do with all of us. It wasn’t like I was getting some
special pay salary. The questions I wanted to know referred to all of us.” Hess then said that
Ray was “very negative and disrespectful” and that she was “different than the others.” Ray
replied “That’s ridiculous. The others feel exactly the same way I feel. I was just more vocal
about it.”

At that point, Hess changed the subject, and brought up the fact that Ray apologized for
lack of interview clothes during her interview. Ray explained that she felt uncomfortable about
it, but that Brambrut had spoken to her about the matter the night before, and told her that it was
“a non-issue.” Ray then added, “If you two aren’t communicating that I was going to be coming
in that way, not dressed in a suit, I can’t help that. But she did tell me that it was a non-issue.”
After an uncomfortable pause, the discussion turned to how Ray would be permitted to clean
out her locker and Ray left the room.

Mancini admits that she did not tell Ray that her contract as an independent contractor
was terminated, and concedes that it did not occur to her that there were still four days left
before the September 15 start date. Indeed, Mancini did not recall whether Ray was scheduled
to work between September 11 and September 15, 200314 After Ray was informed of
Respondent’s actions towards her, she saw Lovinggood, who informed her “I just got fired.” The
record does not reflect what Lovinggood was told during his meeting with Respondent’s officials.

The parties stipulated that the only applicants were not offered by employment by
Respondent as employees of the Spa in September 2003 were Ray and Lovinggood. The
parties also stipulated that fourteen massage therapists, including Ray and Lovinggood but not
including Reiko, applied for employment at Respondent in September of 2003. The parties
further stipulated that four of the above group, including Dolshun were hired as full-time
massage therapists in September of 2003.

Further, record testimony establishes that Respondent hired approximately 10 part-time
employees, including two new employees, who had not participated in the training, and who had
been obtained through an ad placed by Respondent in the “New York Times.” As of the date of
trial, Respondent was still hiring additional massage therapists.

III. Analysis

The first issue to be decided is whether, as alleged in the complaint, as amended, and
denied by Respondent that Conant, Hess and Labak are agents of Respondent.

The Board will find agency status where employees would reasonably believe that the
individual in question was reflecting company policy and speaking and acting for management.
Pan-Oston Co., 336 NLRB 305, 306 (2001); Cooper Industries, 328 NLRB 145 (1999); Southern
14 My findings with respect to the discussions on September 11, 2003 are based on the
testimony of Ray, which was detailed, credible and consistent on direct and cross. Hess did not
testify. Mancini’s version of the conversation was not nearly as detailed, but not substantially
inconsistent with Ray’s version, Mancini testified that she told Ray that she was not being hired
because of her unprofessional, inappropriate behavior throughout the process. Mancini added
that Hess told Ray that she had exhibited inappropriate behavior during training.

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Bag Co., 315 NLRB 725 (1994).

Here, there can be no question that Conant and Hess were agents of Respondent. They
were introduced by Respondent as consultants for the new Spa and that they would be
overseeing the training and running of the new Spa. The employees were informed that the
consultants would be making decisions on treatments and protocols to be used, and that
employees must follow their directives in these areas. The consultants made recommendations
to Respondent concerning various other issues concerning terms and conditions of employment
of the therapists, including employee status, compensation and other benefits. Further they
were directly involved in interviewing applicants for employment by Respondent and making
effective recommendations as to which therapists to hire. Based on the above, Conant and
Hess are and have clearly been agents of Respondent. I so find.

Labak’s situation is less clear, but since he was also involved in the interview and
training process, and he also made recommendations as to which therapists Respondent
should hire, I also conclude that he was an agent of Respondent.15

Turing to the merits of the allegations in the complaint, General Counsel contends that
Respondent discharged and or refused to hire Ray in retaliation for her protected conduct on or
about September 11, 2003. In order to decide the issue of whether Respondent unlawfully
discharged Ray, it would be necessary to decide whether she, as well as other therapists were
employees of Respondent or independent contractors at that time. However, as I have
mentioned above, I do not deem it essential to resolve this issue.

In that regard, Respondent argues that Ray, as well as the other therapists, were
independent contractors, at the time of the alleged discrimination against Ray. Therefore, since
Section 2(3) of the Act expressly excludes independent contractors from the definition of
“employee,” a finding that Ray was an independent contractor means that she is not afforded
any protection under the Act. I disagree.

It is well settled that an applicant for employment is treated as an employee under
Section 2(3) of the Act. Phelps Dodge v. NLRB, 313 U.S. 177, 191-193, 61 S. Ct. 845 (1941);
Reliance Insurance v. NLRB, 415 F.2d 1, 6 (8th Cir. 1969); Mainline Contracting Co., 334 NLRB
922, 923, fn. 5 (2001); Labor Ready Inc., 327 NLRB 1055, 1058 (1999), enfd. 253 F.3d 195 (4th
Cir. 2001); Mason-Rust, 179 NLRB 435, 439-440 (1969), enfd. denied in other grounds, but
affirmed in pertinent part, 449 F.2d 425, 427 (8th Cir. 1971). Thus Ray although she may have
been an independent contractor for Respondent, was also an applicant for employment with
Respondent at the time of the alleged discrimination against her.16 It was Ray’s status as an
applicant for employment which gives rise to her protection, and not her previous status as an
alleged independent contractor. Ray should be treated no differently from someone off the
street, with no previous connection to Respondent. She is entitled to non discriminatory
15 Notwithstanding my finding that he was an agent of Respondent, and having considered
same in my credibility resolutions detailed above, I nonetheless for the reasons described
above, credit his testimony over that of Ray, concerning Ray’s comments to him during her
technical interview.
16 In that connection, I conclude that she became an applicant for employment in late
August, when the training began for the new Spa, since that was the start of the application
process. At the very latest, she became an applicant when Respondent announced the
decision that workers at the new Spa would be employees on August 29, 2003, and distributed
applications for employment, which application was submitted by Ray.

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consideration of her application for employment, which cannot be based on her exercise of
protected concerted activity. Mainline Contracting, supra; Mason-Rust, supra; Phelps Dodge,
supra.

While as I have observed, these are some differences in analysis of alleged unlawful
discrimination in refusal to hire vis à vis unlawful discharge cases, none of these differences are
present here. Thus in discriminatory discharge cases, under the analysis of Wright Line, 251
NLRB 1083, 1089 (1980), General Counsel must establish that the employee’s protected
conduct was a motivating factor in the employer’s decision to terminate the employee. The
burden then shifts to the employer show that it would have taken the same actions in the
absence of the protected conduct.

Under FES, 331 NLRB 9, 12 (2000), the Board utilizes the Wright Line approach to
analyze refusal to hire cases, but adds some additional requirements to General Counsel’s
prima facie case. They are that the employer is hiring at the time of the discrimination, and that
the applicants had the relevant experience or training for the position. Here there is no dispute
that Respondent was hiring in September of 2003, and that Ray had the relevant experience or
training for the position. Thus, the only issue to be decided is whether animus towards Ray’s
protected conduct contributed to Respondent’s decision not to hire Ray, and if so, whether
Respondent has shown that it would not have hired her, for other reasons, even in the absence
of her protected conduct. Therefore the issues to be decided in both the refusal to hire and
discharge allegations are virtually identical, and the remedy is virtually the same as well. In
such circumstances, I find it unnecessary to decide the troublesome issue of whether or not Ray
and the other massage therapists were independent contractors, prior to the alleged
discrimination against Ray on September 11, 2003. I shall therefore decide only the refusal to
hire complaint allegation.

As I have detailed above, there is no dispute about and I find that Respondent was hiring
employees in September of 2003, and that Ray had the training and experience to perform the
job of massage therapist. Therefore the only disputed issue to be decided, is whether
Respondent refused to hire Ray because of her protected concerted activities.

There can be little question, and in fact, it is not disputed by Respondent that Ray
engaged in a significant amount of concerted activity as defined in Meyer Industries, 281 NLRB
882, 887 (1986). Such concerted activity began in the spring of 2003, and continued up until
the date that Respondent notified Ray of its refusal to hire her. The activity consisted of Ray’s
discussions with her fellow therapists concerning terms and conditions of employment,
particularly their common desire to be treated as employees of Respondent. In that regard, Ray
obtained articles on the Internet concerning the issue, met with two lawyers, as well as a
representative of the union about the matter, and reported on her meetings with these people to
her fellow employees.

However, as Respondent correctly observes, there is no direct evidence that
Respondent became aware of any of these activities of Ray. General Counsel argues that
knowledge of these activities, can and should be inferred from the evidence that while Ray and
her fellow therapists were discussing these issues in the cafeteria, various supervisors were
within “earshot,” and likely overheard Ray informing the therapists about her meetings with
lawyers and or union representatives.

However, I find the evidence presented by General Counsel in this regard to be
inconclusive and insufficient to establish that any supervisors overheard Ray’s comments.

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In this regard, Ray testified that on September 10, 2003 which she was reporting to the
therapists about her meetings with lawyers and union representatives, various supervisors
including Brambrut, Conant and Hess were present in the cafeteria, about 20 feet away. While
Ray characterized the supervisors to be within “earshot,” she conceded that the therapists were
saying during the discussions “like, shhh!” while talking, because they did not want Respondent
to know that the therapists were considering taking any action. Ray further admitted that she
did not notice if any of the managers were paying attention to her table, and that the managers
were talking among themselves.

Dolshun testified about another alleged incident in late August, also in the cafeteria,
where she, Ray and therapist Kelly Cummings were allegedly discussing Ray going to lawyers
and the Union, and according to Dolshun, Mancini was sitting at another table, three feet away
from the table, while allegedly eating soup.

I do not find the above evidence sufficiently compelling to conclude that anyone from
management overheard any of the conversations between Ray and her fellow therapists. With
respect to the September 10 discussion, Ray conceded that she did not notice if any of the
officials of Respondent were paying attention and that they were talking among themselves.
Further Ray also admitted she and other therapists were trying to talk quietly, so that
Respondent’s representatives would not hear. Thus her conclusionary and unsupported
testimony that the managers were within “earshot” although they were 20 feet away, is not
persuasive, particularly where Conant, Brambrut and Mancini credibly denied over-hearing any
conversations in the cafeteria (by therapists) about lawyers or the Union.

Dolshun’s testimony concerning the alleged conversation in late August, where she
believes Mancini overheard Ray discussing lawyers and the Union is also not persuasive. I
note initially that Ray furnished no corroboration of Dolshun’s testimony concerning this alleged
incident. Further Dolshun’s testimony that the Union was discussed during the conversation is
inconsistent with Ray’s testimony that she went to the Union in mid-September. Also, Dolshun
conceded that Mancini’s back was to the table where the therapists were discussing these
issues. Thus Dolshun could not be certain that Mancini overheard. Finally, I find Mancini’s
testimony that she did not overhear any such comments to be credible.

However, notwithstanding the above findings, the record reveals substantial evidence of
Ray’s continued exercise of concerted activity, in the presence of various representatives and
agents of Respondent. Thus in June or July, Ray asked Conant in their initial meeting if the
therapists would be independent contractors or employees after the Spa opens, and indicated
that she believed that therapists had been misclassified for years. Additionally, on August 28,
2003, in the presence of fellow therapist Reiko, Ray discussed with Brambrut whether the
therapists would be independent contractors or employees and whether they would be paid for
down time. When Brambrut replied that they would be independent contractors and would not
be paid for down time, Ray replied that she didn’t think it was legal, and believed that the Labor
Department considered it illegal to coerce the therapists “to stay and work with a threat.” Reiko
in Brambrut’s presence expressed approval of Ray’s position, and added that Ray sounded “like
a lawyer.”

Ray continued in the same vein during her interview with Brambrut and Hess. By this
time Respondent had announced that the therapists would become employees. However, Ray
expressed several complaints during this interview about the proposed new conditions,
including the failure of part-time and on-call employees to receive benefits. While Hess
disputed Ray by pointing out that such employees would receive room privileges at other Four
Seasons Hotels, Ray continued to insist that at least for part-time and on-call employees, the

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situation is really the same as the independent contractor situation. Ray added she believed
that the therapists had been employees all along, and informed Hess that she used to work as a
paralegal at the Proskauer Law firm, and had seen a memo on the firm’s on-line site, about the
importance of classifying employees properly. Finally, Ray stated that she had thought that
Respondent had been represented by Proskauer, and was surprised that Respondent “was not
taking that seriously.” While neither Brambrut nor Hess said anything to Ray about these
comments, Brambrut’s evaluation form stated her concerns about Ray’s “loyalty” to
Respondent. I conclude that Brambrut’s reference to “loyalty” related to these statements by
Ray complaining about the proposed conditions, mentioning that she felt that therapists had
been misclassified all along and her reference to the Proskauer law firm. In my view, Brambrut
believed that Ray’s mention of the law firm implied Ray might take legal action with respect to
the concerns of her and her fellow therapists, I believe that belief was furthered by Ray’s prior
comments to Brambrut concerning the Labor Department and Ray’s belief that Respondent had
misclassified employees.17

Furthermore, at the training sessions in August and September of 2003, prior to the
vendor being introduced to discuss its product, the therapists asked questions of and made
comments to Conant, about the proposed working conditions at the new Spa. It is conceded
that Ray was the most vocal and most persistent of all the therapists who spoke during these
meetings, both before and after the August 29th announcement that the therapists would be
employees when the Spa is reopened on September 15, 2003. There can be no question, and
in fact is not disputed by Respondent, that Ray by raising group concerns at a meeting called by
Respondent, engaged in concerted activity. Anheuser-Bush Inc., 337 NLRB 3, 11 (2001), enfd.
338 F.3d 267 (4th Cir. 2003); Chromalloy Gas Turbine Co., 331 NLRB 859, 863 (2002); enfd.
262 F.3d 184, 189-190 (2001); Neff-Perkins Co., 315 NLRB 1229 (1994).

The concerted conduct by Ray during these meetings, included her comment to Conant
about one of his responses to her questions, that she knew about the issue and had gone to
and spoken to lawyers about the matter.

The record further reflects that on September 9 or 10, during another meeting, Ray
questioned how Respondent computed the $11.00 per hour figure that it had announced for
payment to the therapists. Conant replied that HR had established that it was fair in the market.
Ray questioned the fairness of the amount and inquired as to what market was used and
Conant suggested that Ray ask Mancini. Ray persisted and asserted that $66 per day is not fair
for New York City, and reiterated again a complaint made by several other therapists at prior
meetings, that it is not fair that the hourly pay is canceled if the therapists have treatments on
their shifts. Ray characterized this as the same as before and not like “an employee situation.”
Conant tried to assure the therapists not to worry and stated that they would be receiving “tons
of massages.”

Ray then asked how vacation pay will be calculated, and Conant responded that the
17 In this regard, I reject Brambrut’s unconvincing and contrived explanation that she
mentioned “loyalty” because she was concerned that Ray was “negative” towards the changes
and negative towards being part of the team. I note that in other parts of the interview form,
Brambrut wrote that Ray was “willing to try and adopt new ways of doing things.” Further
Brambrut had not been told at the time about the interview with Labak which had not taken
place when Brambrut wrote her comments.

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$66.00 per day figure would be used for that purpose. This response produced several adverse
comments by Ray and Dolshun as to the insufficiency of this amount to take a vacation,
culminating in a comment by Ray to Conant, “it’s easy for you to say, you don’t make $11 per
hour.” These comments resulted in laughter amongst the therapists and others present, and
induced therapist Keith Lovinggood to stand up, make a “thumbs down” gesture, and “boo” for
15 seconds. Ray stood up, obviously in support of Lovinggood during this incident, but did not
“boo” or make gestures. Seeing that, Conant became red in the face and was clearly upset.
Ray attempted to apologize, by reminding him that therapists mean no disrespect, but these
issues are important for the therapists to know, and “this is our livelihood.”

Conant was clearly very upset about this incident, and he immediately reported it to
Mancini, including the fact that Ray had stood up along with Lovinggood while he was “booing”
and making a “thumbs down” gesture.

However, even where an employee, such as Ray engages in concerted activity, such
activity can lose its protection under the Act, where the employee commits flagrant or egregious
conduct rendering that employee unfit for further service. Cibao Meat Products, 338 NLRB 934,
935 (2003); Chromalloy Gas, supra at 863; Consumers Power Co., 282 NLRB 130, 132 (1986).
In assessing whether concerted conduct has lost the Acts protection, the Board is sensitive to
the fact that an employee’s right to engage in concerted activity must be balanced against the
employer’s right to maintain order and respect. Eagle-Picher Industries, 331 NLRB 169, 184
(2000); Cibao Meat, supra; U.S. Postal Service, 268 NLRB 274, 275 (1983); NLRB v. Thor
Power Tool Co., 351 F.2 584, 587 (7th Cir. 1965).

Further, in the context of concerted activity, a certain amount of leeway is allowed in
terms of the manner in which employees conduct themselves. Health Care Corp., 306 NLRB
63, 65 (1992); Mast Advertising & Publishing, 304 NLRB 819 (1991); Thor Power Tool, supra.

Respondent argues that Ray’s conduct at the meetings, although concerted, lost the
protection of the Act. Carrier Corp., 331 NLRB 126 (2000); Earle Industries v. NLRB, 75 F.3d
400 (8th Cir. 1946); Carleton Collage v. NLRB, 230 F.3d 1075 (8th Cir. 2000); U.S. Postal, supra.

Respondent argues that Ray made derisive and gratuitous insults towards Respondent
such as “sucked,” undermined Respondent’s authority by continuing to ask persistent questions
in derogation of Conant’s requests to stop distracting other trainers, and disrupted the training
process. I do not agree.

I find Respondent’s characterization of Ray’s conduct to be misleading, exaggerated and
not supported by my factual findings as detailed above. While Ray did make persistent
comments and questions which were often critical of Respondent’s proposed working conditions
for therapists under the new Spa, they were far from sufficient to lose the Act’s protection. She
did use the word “sucks” in reference to some of Respondent’s proposals, as well as its failure
to answer questions, but these comments were also made by other therapists, and such
statements, as well as much more derisive and profane remarks, at times directed at
supervisors, have been held to be insufficient to warrant loss of the Act’s protection. Union
Carbide Co., 331 NLRB 356, 360-361 (2000) (calling supervisor a “fucking liar”); Thor Power
Tool, supra (Employee called supervisor a “horses’ ass”); CKS Tool & Engineering, 332 NLRB
1578, 1583, 1586 (2000) (Employee stated “don’t you think we give a f... about our work?
....goddam it, don’t you think we are human beings.”); Neff Perkins, supra at 1233 (Employee
interrupted supervisor, told him to “hush-up and sit down,” and called something “shitty” and
said something “sucks”); United Enviro Systems, 301 NLRB 942, 943, 944 (1991) (Employee
stated “This goddam paperwork is a pain in the ass. I don’t have fucking time for it.”);

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Severance Tool Industries, 301 NLRB 1166, 1170 (1991); enfd. 953 F.2d 1384 (6th Cir. 1992).
(Employee called supervisor a “son of a bitch.”); Burle Industries, 300 NLRB 498, 504 (1990)
(Employee called supervisor a “fucking asshole.”); Consumers Power, supra at 132 (Employee
raised his fist to supervisor); Churchill’s Restaurant, 276 NLRB 775, 777 (1995) (Employee
accused supervisor of being prejudiced against Mexicans.); United States Postal Service, 250
NLRB 4, 5-6 (1980) (Employee called supervisor a “stupid ass.”); Coors Container Co., 238
NLRB 1312, 1320 (1978) (Employee called Employer’s agents “mother fuckers.”)

Ray’s conduct her is far less serious than the conduct in the above precedent, where the
Board found that the Act’s protection had not been lost. Similarly, with respect to the incident
involving Lovinggood, Ray was highly critical of Respondent’s proposal to pay $11.00 per hour,
questioned Conant as to how that figure was arrived at, and then questioned and criticized the
decision to use the $11.00 per day figure to compute vacation pay. Ray characterized
Respondent’s decision in these cases as “unfair,” and stated to Conant in the course of their
discussion, “it’s easy for you to say, but you don’t have to live on $11.00 per hour.” Lovinggood
at that point stood up, made a “thumbs down” gesture, and “boo’d” Conant for 15 seconds. Ray
stood up in support of Lovinggood while these events clearly upset Conant, I conclude that
Ray’s conduct was at most considered rude and disrespectful, and far from sufficiently
egregious to make her unfit for service and to warrant the loss of protection of the Act. Union
Carbide, supra fn. 1; Severance Tool, supra.18

Indeed the most that can be said concerning Ray’s conduct during the meetings, was
that she was the most persistent and vocal of the therapists in her questions and complaints
about Respondent’s proposed working conditions for the therapists.19 I credit Conant that to
some extent, Ray’s conduct resulted in a delay in the training, since time spent discussing the
questions and complaints and questions of Ray, (as well as other therapists), delayed the
presentations by the vendors and further training. However, that fact does not make Ray’s
conduct unprotected. I note that while Conant felt that training was being delayed by the
alleged “interruptions” of Ray, he never directed Ray or anyone else to stop asking questions or
making comments. Conant merely made general statements such as “we have to stay
focused.” Thus under no circumstances can Ray’s conduct be considered insubordinate.
Anheuser-Bush Inc., 338 NLRB 3, 11 (2001), enfd. 388 F.3d 267, 172 LRRM 3214, 3224 (4th
Cir. 2003) (Employee at captive audience meeting, contrary to specific instructions by
supervisor to ask a question or sit down, continued to complain about working conditions.)
Beverly California, 326 NLRB 232, 233 fn.2, 278-278 (1998) (Employee, at captive audience
meeting, contrary to specific instructions by supervisors to sit down persisted in loudly asking if
she could ask a question and tell her side. Held by Board to be “intemperate” conduct, but not
sufficient to lose Act’s protection.) F.W. Woolworth, 251 NLRB 1111, 1113 -1115 (1980) (At
captive audience meeting, employee twice interrupted speech of supervisors, was told to sit
down and second time, disobeyed supervisor’s order, was told he was out of order, and argued
with supervisor concerning his right to speak. Found Act’s protection not lost, even though
employee had specifically declined to follow directive of supervisors.)

The cases20 cited by Respondent in support of its contention that Ray’s conduct became
18 While the issue is not directly before me, I also find that Lovinggood’s conduct during that
meeting was concerted and also did not lose the Act’s protection, based upon the precedent
cited above.
19 See, Neff-Perkins, supra (Comments by employees may have appeared to Employer as
“complaining too much,” or “uncalled for,” but were not egregious.)
20 Carrier Corp., supra; Carleton College, supra; Earle Industries, supra; U.S. Postal, supra.

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unprotected are clearly distinguishable and not controlling. In Carrier Corp., the employee
involved interrupted a meeting between a Manager and other employees to which he was not
invited, insisted on discussing subjects unrelated to the meeting, and refused to acquiesce in
the repeated directions to him that his concerns could be discussed later at a more appropriate
time. The employee also pointed his finger at the supervisor and stated in effect that he was not
afraid of the supervisor. The Board agreed that the employee’s conduct, even if concerted, had
lost the protection of the Act.21

Here however, Ray, unlike the employee in Carrier who interrupted a meeting to which
was not invited, and where he did not belong, was invited to, and in fact was required to be
present at the meetings conducted by Conant. Thus when an employer as Respondent did
here, requires employees to be present, and permits questions and comments about working
conditions, “one must expect questions or statements that one might not like.” Anheuser-Bush,
supra at 11. It also can expect employees to be persistent in demanding answers to their
questions, and to make critical comments about proposed working conditions, even where
Respondent would prefer not to discuss the matters any further, and to proceed to other
business, such as training.

Most significantly of all, Conant did not, as did the supervisor in Carrier, give a direct
order or instruction to Ray or any other employee to stop asking questions or making
comments, and or that training is being delayed by therapists’ discussions of working conditions.
Conant’s vague comments to the therapists to “stay focused”, or to ask HR about certain areas,
can hardly be construed as direct orders or instructions, and the failure of Ray to adhere to
Conant’s requests cannot be construed as insubordinate conduct. Anheuser-Bush, supra;
California Beverly, supra; F. W. Woolworth, supra.

Similarly in U.S. Postal Service, 268 NLRB 274 (1983), the Board found conduct
unprotected, where the employee became “excessively loud and insulting,” while discussing his
time card with a supervisor on the shop floor, and refused a direct order of the supervisor to
quiet down and return to work. Here, unlike the employee in U.S. Postal, Ray was neither
excessively loud nor insulting during any of the meetings, and did not refuse any orders to quiet
down or return to work. Further, the concerted activities of Ray took place at a mandatory
meeting, not on the work floor, as did the confrontation in U.S. Postal.

Earle Industries, and Carleton College, are both Circuit Court decisions, reversing the
findings of the Board, where it was concluded in both cases that the conduct complained of, did
not lose the protection of the Act.22 I as an ALJ am bound by the Board decisions in these
cases, rather than the Court decisions. Nonetheless, in my view the facts in both of these cases
are also sufficiently distinct from the facts here, that a different determination would not be
warranted even if the Court decisions were considered dispositive precedent. In Carleton
College, the Court disagreed with the Board’s decision that an employee had not lost the
protection of the Act, by his use of “salty language” such as “pig” and “laughingstock,” referring
to the department. The Court did so however, based on its view that a professor, in the setting
of college faculty, must be held to a higher standard than an ordinary employee, citing NLRB v.
Yeshiva, 444 U.S. 672, 680 (1980) as recognizing the importance of collegiality to academic
institutions. Indeed the Court specifically observed that the “salty language” used by the
21 The ALJ had found that the employee lawfully was reprimanded for disruptive, intimidating
and insubordinate behavior.
22 Carleton College, 328 NLRB 217, 253-254 (1999); Earle Industries, 315 NLRB 310, 313-
315 (1999).

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employee might be excused in a different setting, but that in the context of a meeting with the
dean of the college which was called to discuss professional expectations for the future, the
employees’ use of vulgarities and descriptions of the music department evidenced his
disrespect of the music department, and “unwillingness to commit to act in a professional
manner,” 230 F.3d at 1081. Further the Court also relied on the fact that employee had refused
to commit himself, although asked to do so by the dean, to abide by professional expectations,
and instead expressed loyalty only to adjunct faculty and students. The Court concluded that
the unwillingness to commit to acting in a professional manner rendered the employee “unfit for
future employment at Carleton.” Id. Clearly none of these factors are present here. Ray is not
a member of a faculty, and did not express any unwillingness to commit herself to act in a
professional manner as did the employee in Carleton College.

Earle Industries, supra, is even less dispositive. The Court found that the employee
therein had lost the protection of the Act, because she defied the direct instructions of her
supervisor, and deliberately lied in the course of the concerted activity. Here, Ray did not lie,
and as noted above did not defy any direct orders of a supervisor or agent of Respondent.

Accordingly, I find the precedent that I have cited above, to be controlling, and warrant
the conclusion that Ray did not engage in egregious conduct making her unfit for service, during
the course of her concerted activity. Therefore I find that she engaged in protected, as well as
concerted activities.

The next question becomes whether General Counsel has established that this
protected conduct of Ray was a motivating or contributing factor in Respondent’s decision not to
hire her. There can be little question that General Counsel has so proven. While I have not
found, as argued by General Counsel that Respondents agents or supervisors overheard Ray
and other employees discussing lawyers, in connection with their concerted complaints, I did
find that Ray mentioned at one of the meetings with Conant that she had spoken to a lawyer
about a particular issue under discussion, and that Ray in a discussion with Brambrut
mentioned her belief that the Labor Department considered it illegal for Respondent to force
employees to be present at the hotel with the possibility of no pay. After that comment, fellow
therapist Reiko said to Ray in Brambrut’s presence that she sounded like a lawyer. I have
further found above, that Brambrut’s reference to her concerns about “loyalty” of Ray to the
hotel, on the interview form, referred to her fear that Ray would instigate legal action against
Respondent on behalf of herself and her fellow employees. Therefore, this evidence is
sufficient in itself to conclude that a motivating factor, in Respondent’s decision not to offer her a
position, was her protected conduct.

More importantly however, the statements made by Respondent’s supervisors and
agents, as well as their own testimony, virtually admit that protected conduct was at least part of
the reason for Respondent’s failure to hire her. When Ray was informed of Respondent’s
decision not to hire her, she pressed Mancini and Hess for the real reasons. Mancini told her
that it was because of her negative attitude and demeanor. Mancini did not further explain what
she meant by that, but it is clear from Mancini’s testimony that she was referring to Ray’s
protected conduct at the meetings, where she was frequently critical of Respondent’s proposed
conditions for the therapists. Thus Mancini conceded that her decision to recommend Ray not
be hired was influenced by Ray’s conduct at the meetings, and that she had held up training by
“asking too many questions.” As Mancini further admitted, describing her view of Ray’s
conduct; it was the manner in which she continuously just … just didn’t let go of the same
questions.” Therefore, I find Mancini’s reference to Ray’s “negativity” was based on Ray’s
protected conduct. Furthermore, Hess also interjected her views to Ray, and told Ray that she
had been “disrespectful to Conant in the meetings,” and that she shouldn’t have asked Conant

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questions “about money in the meetings.” When Ray responded that the meeting was about
changes in the Spa, Hess replied that she should have pulled Conant aside and asked him
questions. When Ray replied that the questions referred to all the therapists, Hess repeated
that Ray was “disrespectful and negative” and she was “different than the others.” It is obvious
from the record, that Hess’s assessment of Ray’s conduct as “negative and disrespectful”
involved her concerted conduct, which I have found to be protected. While Hess and or
Respondent may have considered Ray’s conduct “negative”, “disrespectful” or “disruptive”, that
is not the issue. As I have detailed above, Ray was engaged in concerted activity, and her
conduct did not rise to the level of egregious conduct sufficient to make her unfit for service
warranting the loss of the Act’s protection.

Additionally, at the meeting held by Respondent’s supervisors and agents, when the
decisions were made on whom to hire, it is admitted that Ray’s protected conduct, i.e., her
conduct in asking questions and making critical comments at training sessions was mentioned
by everyone present as one of the reasons for Respondent’s decision.23

Accordingly, an exceedingly strong prima facie case has been established that protected
conduct of Ray was a motivating or contributing factor in Respondent’s decision not to offer her
employment. Since General Counsel has made such a strong prima facie showing of
discriminatory motivation, Respondent’s burden of proof under Wright Line to show that it would
have taken the same action, absent protected conduct, is substantial. Wild Oats Markets, 344
NLRB #86 ALJD Slip op. p. 27, 31 (2003); Vemco Inc., 304 NLRB 911, 912 (1991); Eddy-Leon
Chocolate, 301 NLRB 887, 889 (1990). Respondent has fallen far short of meeting its burden in
this regard.

Respondent argues that it has met that burden by establishing that it would have
terminated Ray for unprotected conduct, i.e. her statement to Labak during Ray’s technical
interview that show that Ray did not intend to follow the protocols, and that “no one would know
what she was doing in the treatment room.” Respondent contends that this conduct by Ray,
which did not involve concerted activity, provided a legitimate independent basis for Respondent
not to hire Ray, and it has therefore met its Wright Line burden.

While I agree with Respondent that such conduct by Ray was neither concerted nor
protected, and would provide a legitimate independent basis for Respondent to terminate Ray,
that is not sufficient to meet Respondent’s burden of proof. Respondent must establish not only
that it had a legitimate (non protected) basis not to hire Ray, but must establish that it in fact
would have acted on that basis, absent Ray’s protected conduct. Put another way, Respondent
must prove that it would not have hired Ray solely because of this or other non protected
conduct. Respondent as I have observed, has fallen far short of meeting that burden of proof.

Respondent relies on the testimony of Conant, who states that the “deciding factor,” in
his decision to recommend that they not hire Ray was that he (based on Labak’s report to him),
did not believe that she would fulfill the requirements of performing all the protocols. However,
23 For example Brambrut testified that in her view, Ray’s negative behavior during the
meetings, consisted of Ray making critical comments about Respondent’s proposed conditions,
rather than asking a question. That clearly encompassed protected conduct by Ray.
Respondent cannot transform otherwise protected conduct into unprotected activity by
characterizing the conduct as “negative behavior.” See, Enloe Medical Center, 343 NLRB No.
61Slip op. p. 1 (2004) (“complaining” and “negative behavior” included Sect. 7 activity, and is
protected.)

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that testimony of Conant, even if believed, and even if it can be held to be Respondent’s
decision, is not sufficient to meet Respondent’s burden of proof. Thus the fact that unprotected
conduct constitutes the “deciding factor” in the decision, does not negate the fact that protected
conduct was also “a motivating factor,” in the decision, which Conant, as well as all others of
Respondent’s witnesses admit. What Respondent must demonstrate in order to meet its Wright
Line burden, is that it would not have hired Ray whether or not she engaged in her protected
conduct, or put another way, whether her stated refusal to perform the protocols and or other
unprotected conduct would have been sufficient in themselves to have caused the refusal to
hire. St. Barnabas Hospital, 334 NLRB 1000, 1015 (2001) (Statement by supervisor that
“unprotected conduct” was “primary reason” for discharge insufficient to meet Wright Line
burden.)

Thus Conant’s testimony, even if credited, does not so establish, nor does the testimony
of any of the other of Respondent’s witnesses. Both Mancini and Brambrut conceded that Ray’s
protected conduct was one of the reasons for their decisions to recommend not hiring Ray, and
that was so stated at the meeting where the decision was made. Hess, also a participant in the
decision, did not testify, but other evidence establishes that she mentioned at the meeting,
Ray’s protected conduct as a reason for her recommendation, and in fact made no mention of
Ray’s refusal to perform the protocols, as even a factor in her decision.

Finally, Steinhauer the ultimate decision maker, who listened to all the participants in the
meeting give their reasons, approved the consensus decision, without stating which of the
reasons stated motivated him to agree that Ray not be hired. Indeed, the absence of testimony
of the decision maker, as well as Hess, one of the participants in the decision, permits an
adverse inference, which I draw, that their testimony would have been unfavorable to
Respondent with respect to this issue. Wild Oats, supra, ALJD Slip op. at 31; Government
Employees (IBPO), 327 NLRB 676, 699 (1999).

Respondent also argues that the record reveals that most if not all of therapists made
complaints and asked questions during the training meetings, so it therefore follows that Ray’s
refusal to follow the protocols would have caused her not to be hired. I disagree. In fact,
although most therapists asked questions and made comments, Ray was the most persistent
and most vocal, and Respondent clearly considered her to be the leader and spokesperson for
the other therapists. Conant contended that he did not recommend that Lovinggood not be
hired, contrary to the other participants, because he felt that Lovinggood was being influenced
by Ray’s “negativity” during training, and if Ray was not there, Lovinggood’s “negativity” would
go away. Further, Respondent was aware that Ray had mentioned lawyers and the Department
of Labor in connection with concerted complaints, and there is no evidence that any other
therapists made any such comments.

Accordingly, based on the foregoing analysis and precedent, I conclude that Respondent
has not met its Wright Line burden of establishing that it would not have hired Ray absent her
protected conduct,24 and it has therefore violated Section 8(a)(1) of the Act by such conduct.

24 While evidence was adduced that some of Respondent’s official criticized Ray’s grooming
or appearance, Respondent has not established that it would not have hired her for this reason.
Indeed, I find this reason to be pretextual. Ray wore her hair the same way for most of her
tenure working at the Hotel. Further, Ray received permission from Brambrut to attend the
interview in her working clothes. I conclude that these reasons were not a factor in
Respondent’s decision not to hire Ray.

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The Conclusions of Law

1. Respondent Hotel 57 LLC d/b/a Four Seasons Hotel is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. By failing and refusing to hire Susan Ray, because of her protected concerted
activities, Respondent has violated Section 8(a)(1) of the Act.

3. The aforesaid unfair labor practices affect commerce within the meaning of Section
2(2), (6) and (7) of the Act.

The Remedy

Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.

I shall recommend that Respondent’s offer a position to Ray, who was unlawfully denied
hire by Respondent, referred to by the Board in FES as “instatement;” and to make her whole
for any loss of pay and benefits caused by Respondent’s discrimination against her. Backpay
shall be computed in the manner prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), with
interest calculated in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended25

ORDER

The Respondent, Hotel 57 LLC d/b/a Four Seasons Hotel, New York, its officers,
agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to hire applicants for employment, because they have engaged in
protected concerted activities.

(b) In any like or related manner interfering with, restraining or coercing employees or
applicants for employment, in the exercise of rights guaranteed them by Sect. 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order offer instatement to Susan Ray, to the
position for which she applied or if that position is no longer available, to a substantially
equivalent position, and make her whole for the discrimination against her in the manner set
forth in the remedy section of this decision.

25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(b) Within 14 days from the date of the Order, remove from its files any reference to the
unlawful refusal to hire Susan Ray, and within 3 days thereafter notify Susan Ray that this has
been done, and the refusal to hire her will not be used against her in any way.

(c) Preserve and, within 14 days of a request, make available to the Board or its agents
for examination and coping, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of Backpay due under the
terms of this Order.

(d) Within 14 days after service by the Region, post at its New York, New York facility,
copies of the attached notice marked “Appendix.”26 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
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
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 11, 2003.

(e) Within 21 days after service by Region 2 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.

Dated, Washington, D.C.

____________________
Steven Fish
Administrative Law Judge

26 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–42–05

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this
Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to hire applicants for employment, because they engage in protected concerted activities.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees or applicants for employment in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL within 14 days from the date of this Order offer Susan Ray instatement to the position for which she applied, or, if that
job no longer exists to a substantially equivalent position, and make her whole for the discrimination against her, plus interest.

WE WILL within 14 days from the date of this Order, remove from our files any reference to the unlawful refusal to hire and,
within 3 days thereafter, notify her in writing that this has been done, and the refusal to hire her for employment will not be used
against her in any way.

FOUR SEASONS HOTEL
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.

26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.