Hacienda Hotel, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 2006

348 N.L.R.B. 854 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 49
854
Hacienda Hotel, Inc. and UNITE HERE, Local 11.
Case 31–CA–26945
September 29, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On May 31, 2006, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Charging
Party and the General Counsel filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions, and to adopt his recommended
Order as modified and set out in full below.2
ORDER
The National Labor Relations Board adopts the Order
of the administrative law judge as modified and set forth
in full below and orders that the Respondent, Hacienda
Hotel, Inc., El Segundo, California, and its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Bypassing the Union and engaging in direct dealing
with its bargaining unit employees by involving itself in
an unauthorized ratification vote on its own contract pro-
posal.
(b) Issuing warning notices to its employees because
they engaged in protected concerted activities that it be-
lieved were authorized by the Union.
(c) Threatening its employees with reprisals or nega-
tive consequences because they engaged in activities in
support of the Union.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Given our affirmation of the judge’s credibility determinations, we
find no merit to the Respondent’s exceptions that Valentin Hernandez
lost the protection of the Act. In view of these findings, Hernandez’s
conduct, which resulted in his discipline, was also part of the res gestae
of otherwise protected concerted activities. In this context, the “perti-
nent question is whether the conduct is sufficiently egregious to remove
it from the protection of the Act.” Stanford Hotel, 344 NLRB 558, 558
(2005); see generally Atlantic Steel Co., 245 NLRB 814 (1979). The
Respondent has failed to make such a showing.
2 We shall modify the judge’s recommended Order to correct an in-
advertent error in paragraph numbering and in accordance with our
decisions in Indian Hills Care Center, 321 NLRB 144 (1996), as modi-
fied in Excel Container, 325 NLRB 17 (1997).
(d) Threatening its employees with disciplinary hear-
ings for engaging in protected concerted activities that it
believed were authorized by the Union and thereby im-
pliedly threatening its employees with reprisals if they
engage in activities in support of the Union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies and purposes of the Act.
(a) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warning no-
tice issued to its employee, Valentin Hernandez, and,
within 3 days thereafter, notify Hernandez, in writing,
that this has been done and that the warning notice will
not be used against him in any way.
(b) Within 14 days after service by the Region, post at
its facility in El Segundo, California, copies of the at-
tached notice marked “Appendix.”3 Copies of this no-
tice, in Spanish and English, on forms provided by the
Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered 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 em-
ployees and former employees employed by the Respon-
dent at any time since June 20, 2004.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
HACIENDA HOTEL, INC. 855
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT bypass UNITE HERE, Local 11 (the
Union), their exclusive bargaining representative, and
deal directly with our bargaining unit employees by be-
coming involved in an unauthorized ratification vote on
our contract proposal.
WE WILL NOT issue warning notices to our employees
who engage in any of the above-stated protected acts,
such as delegations, that we believe are authorized by the
Union.
WE WILL NOT threaten our employees with reprisals or
negative consequences for engaging in activities in sup-
port of the Union.
WE WILL NOT threaten our employees with disciplinary
hearings and, thereby, impliedly threaten them with re-
prisals for engaging in activities that we believe are au-
thorized by the Union.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warning notice given to Valentin Hernandez, and WE
WILL, within 3 days thereafter, notify him, in writing,
that this has been done and that the disciplinary notice
will not be used against him in any way.
HACIENDA HOTEL, INC.
Nathan Laks, Esq., for the General Counsel.
Myron R. Harpole, Esq. (Witter and Harpole), of Pasadena,
California, and Warren L. Nelson, Esq. (Fisher & Phillips),
of Irvine, California, appearing on behalf of the Respon-
dent.
Ellen Greenstone, Esq. (Rothner, Segall & Greenstone), of
Pasadena, California, appearing on behalf of the Charging
Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The original
and amended unfair labor practice charges in the above-
captioned matter were filed by UNITE HERE, Local 11 (the
Union) on July 26 and September 1, 2004, respectively,1 and,
on May 21, 2005, the Regional Director for Region 31 of the
National Labor Relations Board (the Board) issued a complaint
alleging that Hacienda Hotel, Inc. (Respondent) engaged in acts
and conduct violative of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act). Respondent timely
filed an answer, essentially denying the commission of the
alleged unfair labor practices. Pursuant to a notice of hearing,
which accompanied the instant complaint, a trial was conducted
before the above-named administrative law judge on November
14 through 18, 2005, in Los Angeles, California. At the trial,
all parties were afforded the opportunity to call witnesses, to
cross-examine witnesses, to offer into the record all relevant
documentary evidence, to argue their legal positions orally, and
to file posthearing briefs. Counsel for each of the parties filed a
posthearing brief, and I have carefully considered each of the
documents. Accordingly, based upon the entire record, includ-
ing my conclusions as to the testimonial demeanor of each of
the several witnesses and the posthearing briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a California corpo-
ration, with an office and principal place of business located in
El Segundo, California, has been engaged in the operation of a
full-service hotel, providing food and lodging. During the cal-
endar year ending December 31, 2004, a representative time
period, in conducting its business operations described above,
Respondent derived gross revenues in excess of $500,000 and
purchased and received, at its hotel facility described above,
goods and services, valued in excess of $50,000, directly from
suppliers located outside the State of California. Respondent
admits that, at all times material herein, it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.

1 Unless otherwise stated, all dates herein occurred during calendar
year 2004.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD856
III. THE ISSUES
The complaint alleges, and the General Counsel argues, that
Respondent violated Section 8(a)(1) and (5) of the Act through
its supervisors and agents by participating in the distribution of
copies of “ballots” to its bargaining unit employees so as to
enable the employees to vote in favor of an employer contract
proposal and by placing of copies of the ballots next to the
timecards of bargaining unit employees at the housekeeping
department timeclock; violated Section 8(a)(1) and (3) of the
Act by issuing a written warning letter to employee, Valentin
Hernandez, because he assisted the Union and engaged in pro-
tected concerted activities; and violated Section 8(a)(1) of the
Act through its agents and supervisors by advising a bargaining
unit employee to leave the Union because the Company does
want people who are in the Union and by threatening a bargain-
ing unit employee with a disciplinary hearing because the em-
ployee had been the leader of an employee delegation to a su-
pervisor in order to speak about a work-related problem. Re-
spondent denied engaging in the alleged unfair labor practices
and specifically asserted that the warning letter to Valentin
Hernandez was justified by the employee’s misconduct and
violation of its work rules.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates an “all-service” hotel with 627 guest
rooms, 19 meeting rooms for business conferences and ban-
quets, a coffee shop, a dining room, and a bar, in El Segundo,
California. Myron Harpole, the attorney for Respondent’s
owner, is the chairman of Respondent’s board of directors and
its chief operating officer, is responsible for the hiring and fir-
ing of its executive officers, and “monitors” the performance of
the hotel. Joseph Harding is Respondent’s general manager2
and is responsible for all aspects of the hotel’s operations in-
cluding guest issues, public relations, employment issues, and
union-related issues.3 Gerald Katzman is Respondent’s presi-
dent and comptroller and is responsible for day-to-day account-
ing matters at the hotel. Carmen Perez is the head of Respon-
dent’s housekeeping department, and Francisco Orozco is the
manager of Respondent’s food and beverage department.4
Respondent and the Union have had a longstanding collective-
bargaining relationship since 1970 and have had successive
collective-bargaining agreements, the most recent of which
expired by its terms on October 15, 2003, and extended through
January 2004, with the Union as the exclusive representative of
Respondent’s food and beverage department, housekeeping,
and guest services department employees. The record estab-
lishes that, with the expiration of their collective-bargaining
agreement, the parties engaged in bargaining for a successor

2 Harding has been the general manager since 2002. Prior to him,
Frank Godoy was the general manager and was in the position for 30
years.
3 Respondent admitted that both Harpole and Harding are supervi-
sors and agents within the meaning of Sec. 2(11) and (13) of the Act.
4 Respondent admitted that both Perez and Orozco are supervisors
within the meaning of Sec. 2(11) of the Act.
agreement throughout 2004.5 Robin Brown-Rodriguez, who is
a “director” for the Union, was its lead negotiator during the
bargaining, and she was normally accompanied by an employee
negotiating committee. Harpole, Harding, Katzman, and Attor-
ney Warren Nelson participated in the bargaining for Respon-
dent, and department heads, including Perez, occasionally ac-
companied them.
The instant alleged unfair labor practices occurred in the
context of fervent and arduous negotiations during the summer
months of 2004,6 and Harpole testified that relations with the
Union, normally “congenial,” become particularly “conten-
tious” during such periods of intensified collective bargaining.7
In this regard, the record establishes that, as a pressure tactic
during difficult bargaining, such as occurred during 2004 with
Respondent, the Union encourages bargaining unit employees
to engage in so-called “actions,” and Brown-Rodriguez defined
these as “. . . anything where workers get together and do some-
thing.” Such conduct includes delegations, petitions, picketing,
and wearing buttons. Brown-Rodriguez, who stated delega-
tions are “. . . something that we frequently do,” testified that
these are groups of employees who desire to address an inci-
dent or raise a matter of common concern to them and to con-
front a hotel manager over the issue. According to her, “[W]e
train [the employees] to have a clear spokesperson or spokes-
people . . . . to back each other up and not allow the company to
try to talk to one person or another and split people off . . . ”
and “to . . . present a cogent message to the company in a way
that gets that message across.” She added that “we train [the
participating employees] to say we are members of the Union”
and “. . . as a union, we want x” and that “we expect [manage-
ment] to deal with them as employees . . . who have a concern.”
Brown-Rodriguez stated that the usual issues, over which dele-
gations arise, are ones which “can easily be fixed, like a safety
issue . . .;” although “I think they have happened around disci-
pline . . . .”8 With regard to bargaining unit petitions, she stated
the purpose of these is “to let the hotel management know di-

5 The most significant bargaining sessions herein were held on July
16 and 23.
6 Brown-Rodriguez agreed that the 2004 bargaining with Respon-
dent was contentious.
7 Harpole testified that, during collective bargaining, there have been
public “confrontations,” including threats of “fistfights” and other
incidents necessitating telephone calls for police assistance, and that
one such incident, involving a confrontation inside a hotel work area
which resulted in the suspension of an employee, occurred during bar-
gaining over the successor to the contract, which expired in 1999.
8 The record reveals that, during the summer prior to July 23, Re-
spondent’s bargaining unit employees had engaged in three delegations.
One was to Gerald Katzman’s office during which as many as 12 em-
ployees, one at a time, walked in, dropped pennies onto his desk, and
said “. . . the increases that we were offering . . . were in the pennies
and . . . were not sufficient.” The other two were to Joseph Harding.
The first occurred in the hotel lobby when approximately 8 employees
approached him as he was on his way to lunch and handed him some
documents and the second occurred when approximately 20 employees
approached him during a lunch in a banquet room with regard to an
offer made by Respondent during bargaining. Each of these incidents
lasted for a short time and no employees were disciplined for participat-
ing.
HACIENDA HOTEL, INC. 857
rectly from the workers what the workers [are] most concerned
about.” She added that petitions are presented to management
either across the bargaining table or directly to a manager.9
B. The Adelina Escobar Incident
Adelina Escobar, a housekeeper, testified that, at approxi-
mately the time she attended a bargaining session in June,10 she
was approached on the floor, on which she was working, by
Marisa Mejia, a lead housekeeper, who told Escobar that Perez
was quite upset because the former had failed to clean an as-
signed room. Escobar11 said she would meet with Perez at 4
p.m. and asked Mejia to accompany her. At the scheduled
time, Escobar finished her assigned work, and she and Mejia
found Perez in the cafeteria. “I told [Perez] . . . that I had not
left the room out because I did not have enough time because
there were 15 doubles. . . . She told me that I should not leave
the room like that because she had to keep her schedule and not
to do that and that I [had] better tell her . . . whenever I was
going to leave a room out.” Then, “. . . at the end of the con-
versation, she . . . was advising me to leave the Union because
the company did not want people who were in the Union.”
Subsequently, Escobar apparently disclosed Perez’ comments
to her coworkers, who believed Perez’ conduct was sufficiently
egregious so as to warrant a delegation to the housekeeping
manager, and to Brown-Rodriguez, who believed Perez’ con-
duct was serious enough to raise during bargaining with Re-
spondent. Thus, at the parties’ July 23 bargaining session, ac-
cording to the union official, she12 raised Escobar’s name and
said, “. . . that there had been an incident in housekeeping
where Carmen Perez . . . had told [Escobar] that she shouldn’t
be participating in the Union because the hotel didn’t like peo-
ple who participated in the Union.”13 Carmen Perez, who testi-
fied that she was aware Escobar was active in the Union “be-
cause there are employees that comment that she passes out
Union literature and solicits signatures on petitions” and that
she once asked Escobar not to engage in union activities during
her “working hours,” specifically denied the comments, which
Escobar attributed to her. Notwithstanding that she testified on
behalf of Respondent, Mejia failed to deny the occurrence of
the conversation or to corroborate the testimony of Perez.
As between Escobar and Perez, I believe the former was a
more credible witness. Thus, Escobar’s demeanor, while testi-
fying, was that of an honest witness, and I note that she is a
current employee and testified with Myron Harpole, Respon-

9 According to Brown-Rodriguez, during 2004, employees presented
petitions to Respondent, regarding insufficient linens and the need for
jackets to be worn by drivers.
10 Escobar recalled the date of the incident as June 20.
11 According to Escobar, at the time of her hiring by Respondent,
Perez interviewed her and, referring to the Union, warned “. . . not to
get involved with a small group of revolters who are in the Union.”
Perez denied the warning attributed to her by Escobar.
12 What she had been told of the Escobar incident was that Perez
“. . . had told her she shouldn’t participate in the Union . . . . the com-
pany didn’t like people who participated in the Union and [Escobar]
felt that that was threatening and inappropriate.”
13 Harpole, who was sitting across the bargaining table from Brown-
Rodriguez during the July 23 bargaining session, failed to deny that the
latter raised the Escobar-Perez incident.
dent’s chief operating officer, directly in front of her and that I
have difficulty believing she would have paltered to her co-
workers and to Brown-Rodriguez about what Perez told her. In
contrast, Perez, whose testimony was not corroborated by
Mejia, did not appear to be a particularly truthful witness and
impressed me as one who would readily fabricate testimony in
order to buttress her employer’s legal position. Therefore, I
find that, on or about June 20, in the context of onerous bar-
gaining and union-encouraged delegations and petitions, Perez
did, in fact, advise Escobar to leave the Union “. . . because
[Respondent] did not want people who were in the Union.”
While the complaint alleges that Perez’ comment was violative
of Section 8(a)(1) of the Act, in his posthearing brief, other than
asserting the statement was coercive, counsel for the General
Counsel neglected to explicate any underlying rationale for the
allegation. However, in her posthearing brief, counsel for the
Union argued that Perez’ comment constituted an implied
threat of discharge or other negative consequences. I agree.
Thus, Escobar felt threatened by Perez’ remark, and I believe
Perez meant not that Respondent did not want union members
as employees but, rather, that Respondent did not appreciate
employees, who were active in the Union. Consequently,
Perez’ comment was, and should be viewed as, an unlawful,
implied threat of reprisals or negative consequences to Escobar
for engaging in activities in support of the Union. Merit Con-
tracting, Inc., 333 NLRB 562, 563 (2001); Overnight Trans-
portation Co., 332 NLRB 1331, 1335 (2000). Accordingly, I
find that Perez’ comment to Escobar was violative of Section
8(a)(1) of the Act..
C. The Disciplinary Warning Letter Issued to
Valentin Hernandez
The record reveals that, having attended union meetings and
monthly training sessions, participated in the collective bar-
gaining with Respondent during the summer of 2004 as a
member of the Union’s employee negotiating committee,14 and
made “visits” to other employees to inform them of the state of
the negotiations between Respondent and the Union, Valentin
Hernandez15 was active in union-related matters and specifi-
cally that he was active in the two delegations to Harding and
the one to Katzman’s office during the summer. In the latter
regard, according to the alleged discriminatee, as a member of
the delegation which encountered Harding in the hotel lobby as
he was going to lunch, Hernandez was the individual who
handed a petition, signed by employees, to Harding. The re-

14 According to Hernandez, he attended bargaining sessions in June
and July at which Katzman, Harding, and Harpole were present on
behalf of Respondent. At one bargaining session, on July 16, Hernan-
dez spoke out during a discussion of economic issues. According to
Brown-Rodriguez, the former “. . . asked Mr. Harpole . . . why the hotel
made certain decisions about running the business. He asked [Harpole]
why, for example, the hotel didn’t charge for parking. . . . He asked
why there weren’t more promotions to try to bring more people into the
restaurants, and he said . . . he had to get a second job just to buy a car
and . . . with prices of things like food and gas going up, making it [on
$6.50 an hour].” Brown-Rodriguez added that Harpole listened politely
to Hernandez and replied in a “pleasant manner.”
15 Hernandez is employed by Respondent as a cashier and waiter in
its coffee shop and works an evening shift, which commences at 5 p.m..
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD858
cord further reveals that, as a result of bargaining unit employee
meetings, which Hernandez attended and at which Adelina
Escobar informed the employees of “. . . what transpired with
Carmen Perez,” and an incident, during which Perez allegedly
“mistreated” another housekeeper, Vicky Flores, several em-
ployees, including Hernandez, decided to engage in a delega-
tion to Carmen Perez in order “. . . to demonstrate our dissatis-
faction with the mistreatment.” Hernandez notified the Union
of the employees’ intent, and Brown-Rodriguez confirmed that
the Union was, at least, aware that employees were “upset” by
Perez’ alleged misconduct and were disposed to address their
concerns directly to the housekeeping manager. Hernandez
testified that the delegation to Perez was timed to occur “. . .
during the lunch period for the housekeepers” on July 23.
That morning, at approximately 11:30 a.m., Hernandez, ac-
companied by 9 or 10 other employees, including his brother
Salvador, Roberto Reyes, a mechanic, and housekeepers Paula
Casillas and Adelina Escobar, went to confront Perez in the
housekeeping office,16 which is located on the floor beneath the
main floor of the hotel—“I went there mainly as a petition. . . .
on the respect toward my co-workers.” During direct examina-
tion, Hernandez testified that, upon arriving at the hotel, “I
went to the lunchroom and the other employees saw me, and
they went with me” to Perez’ office. “We entered . . .,” and,
acting as the spokesperson, “. . . I greeted her and she . . .
greeted me and asked . . . what she could help me in. . . . The
only thing I told her is the reason for me being there was be-
cause Vicky had told us that she had mistreated [Vicky], like
raising her voice to [Vicky] and we wanted . . . her . . . not to
mistreat the employees, that they only go there to work, not to
be yelled at. Then, Carmen [asked] . . . why I was there when I
only knew one side of the story? . . . I responded . . . that I was
not there to confront her or argue the facts, only to ask her to
respect the employees, nothing more. So, at that time, we left
her office.”
Carmen Perez testified that the housekeeping office is nor-
mally a busy place with housekeepers and maintenance em-
ployees punching in and out on the timeclock and housekeepers
bringing in reports and picking up towels. She added that no
employee meetings are held there “. . . because there is no room
. . . for the employees to sit down and that she does not use the
room for discussions with individual employees because it is a
work area where many people go in and out.” In this regard,
she normally requires employees to schedule appointments with
her in order to discuss “workplace” issues, and “I do tell them
the time at which I can meet with them. If I can do it at that

16 The housekeeping office is a 17-foot-by-7-foot room with an al-
cove in the back, which is utilized by Perez as her personal office area.
As viewed from the doorway, the timeclock for the housekeeping and
maintenance department and racks of timecards are to the immediate
right of the door. Along the left-hand wall are tables, shelves for tow-
els, and shelves for various other items; and, along the right side of the
room are a table and chairs, a basket of towels, and a door. The back of
the housekeeping office is divided between what appears to be a glass-
walled closet and Perez’ office alcove. Her desk faces a wall of the
closet, and a photocopying machine is located directly in front of it.
Thus, sitting at her desk, Perez would look to the left in order to see
anyone entering the housekeeping office.
time, I do it and, if not, I make an appointment with them,”
depending upon “the case.” According to Perez, prior to July
23, she had never met Valentin Hernandez but had spoken to
him on the telephone regarding food orders. At approximately
11 a.m. on the above date,17 she was working at her office
computer, completing a standard room cleaning report, with her
back to the housekeeping office door when, “suddenly,” she felt
several people standing by her desk. She turned and observed
Hernandez, who was already speaking and whose voice she
recognized, and, at least, six other individuals standing close
enough to block her view of the door to the office. Hernandez,
who was no more than a foot or two from her, was saying in a
loud voice, “. . . Carmen, I am here to tell you that you have no
right to mistreat employees. We have learned . . . what you did
to Vicky Flores and I am here to tell you that we are no longer
going to tolerate that. I was trying to tell him to calm down . . .
but he wouldn’t listen. He was pointing at me with his finger
almost right at my face. I had to pull back from the desk. . . .
He was very, very close.” Perez, who asserted she was
“scared” because Hernandez was speaking so loud and was
much larger than her,18 continued, stating that “I told him
please lower your voice. I don’t know what you are talking to
me about. Please go and inform yourself and then come back if
you wish to speak to me. This is not the proper manner. . . .
whenever you wish to speak to me, call me and I will give you
an appointment. At this time, I cannot because I am very busy.
Please leave my office.” Rather than leaving, Hernandez “. . .
continued saying the same thing. . . . I am here to prohibit you
[from mistreating] the employees. Make sure this is the last
time you do it or suffer the consequences. . . . I asked him sev-
eral times please leave, I am busy. And he continued talking
and talking.”19 At that point, Perez abruptly turned her back to
Hernandez and started working again at the computer, and Her-
nandez and the others left the housekeeping office. Perez testi-
fied further that Hernandez did not use any profanity while
speaking to her, that, although she had been sitting when the
incident began, she stood up as Hernandez continued talking,
and that the entire incident occurred between 11 and 11:30
a.m., lasting “between ten and fifteen minutes.” Rosa Hernan-
dez, a housekeeper, ostensibly corroborated Perez, claiming
that she was present in the housekeeping office for a portion of
the confrontation between Hernandez and Perez.20 According

17 Perez testified that 11 a.m. “. . . is one of the . . . busiest times in
housekeeping” because employees “. . . bring their reports to punch out
to lunch. Another bunch comes back from lunch. So there is much
movement at that time.” Nevertheless, as will be discussed infra, on
another occasion, Marta Lara and other housekeeping employees came
to her office at approximately the same time of day as did the Hernan-
dez delegation and discussed with her holding an employee vote on a
Respondent contract proposal.
18 Hernandez is 6-feet tall and over 200 pounds, and Perez is just 5-
feet tall and slight.
19 In her pretrial affidavit account of the incident, Perez failed to
mention that Hernandez continually repeated himself regarding mis-
treating employees.
20 Rosa Hernandez stated that she had returned to the housekeeping
office in order to clock in after lunch, and, at that point, she witnessed
what was occurring. However, her timecard for the day shows her
HACIENDA HOTEL, INC. 859
to her, upon entering the room, she observed a group of six
hotel employees, including Valentin Hernandez, whom she
knew as a restaurant employee, standing around Perez’ desk,
and, while she could not hear what was said, Hernandez, whose
face had an angry look, was yelling and thrusting his hand to-
ward Perez., who was sitting in her desk chair and appeared to
be scared.21
Testifying on rebuttal, Valentin Hernandez, who stated his
visit to Perez was, in effect, a “verbal petition,”22 testified that,
as he and the other employees entered the housekeeping office,
Perez only seemed “a little surprised” when she turned her head
and saw the group; that, rather than confrontationally warning
Perez, “I said we hope that this would be the last time that you
mistreat one of the co-workers;” and that he had no idea as to
how Perez perceived him or what he said. He further testified
that Perez arose from her chair after observing the group of
employees enter the housekeeping office and stood during the
entire time Hernandez spoke to her; that he stood 3 to 4 feet
from the photocopying machine and “about seven feet from
Perez;” that he did waive his arms as he spoke; and that the
entire incident lasted for just 2 minutes. Also, Hernandez spe-
cifically denied that he gestured or thrust his arm toward Perez;
that he yelled or screamed during the incident,23 that Perez
attempted to back away from him, or that he used any profan-
ity.24 Paula Casillas also testified in rebuttal. According to her,
she was a member of the group of employees, who accompa-
nied Hernandez to speak to Carmen Perez. They arrived at the
housekeeping office at 11:30 a.m., which is the time she nor-
mally clocks out for lunch, and, as they entered the housekeep-
ing office, Perez, who was seated at her desk, turned and
looked toward them. Inside the room, she stood against the
door opposite from the towels, and Hernandez stood near the
photocopying machine approximately 10 feet from Perez. Her-
nandez spoke first, saying good morning to Perez. She greeted
him and asked how she could help him. “He said to her . . . we
have learned of what occurred to Vicky. We come . . . repre-
senting our employees to be treated with more respect. . . .
[Perez] . . . said do you not know the other side version?” Her-
nandez said, no and she was never again to engage in that sort

punching in at 12:11 p.m. long after, according to all other accounts,
the incident had concluded.
21 Valentin Hernandez had papers in the hand which he was thrusting
toward Perez. Believing she had to get help for Perez, who seemed to
be frightened, Rosa Hernandez immediately left the housekeeping
office and commenced a floor by floor search for Perez’ sister, a house-
keeper. Hernandez found her on the eighth floor and, together, they
returned downstairs to the housekeeping office. However, they arrived
just as the group of employees was departing from the room. She esti-
mated 5 or 6 minutes elapsed while she searched for Perez’ sister.
22 During cross-examination, he specifically denied carrying a peti-
tion to Perez’ office.
23 According to Hernandez, “. . . I believe I only spoke kind of
sternly, but I don’t . . . think that I . . . would’ve shouted. I am not a
person who usually shouts.”
24 During cross-examination, Hernandez conceded he spoke “seri-
ously” to Perez and added “I know that I was not yelling or shouting.”
Further, he admitted cutting Perez off “. . . when she said you did not
hear the other side of the story. . . . and I said that I was not there to
argue . . .” with her.
of conduct. At that point, Hernandez and the others turned and
left the housekeeping office. Stating that the entire incident
took no longer than 2 minutes, Casillas then clocked out and
went to her lunch. She testified that Perez appeared “calm” and
“relaxed” while Hernandez spoke and that the latter waived his
right hand and pointed it while he spoke. Finally, while recall-
ing that Perez remained seated during the entire incident but
unable to recall if he held anything in his right hand while he
spoke, she denied that Hernandez ever raised his voice or
moved toward Perez.
Perez testified that, after Hernandez and the other employees
left the housekeeping office, she immediately telephoned Joe
Harding, and “I only related to him the account of [what] oc-
curred.” Harding recalled that the telephone conversation oc-
curred “around lunchtime” on July 23 and “. . . that she was just
harassed by a group of employees that came in and they were
loud and threw papers at her. And she has a petition.” He
asked if she could identify any of the employees, and “she men-
tioned Valentin Hernandez, Roberto Reyes, Adelina Escobar,
and Paula Casillas.” The conversation lasted for no more than
a minute, and, according to Harding, concerned about Perez, he
immediately went to the housekeeping office and found her “a
little frazzled.” She showed him the petition, which had been
given to her, and “she . . . went through the motions of how it
occurred and where they were standing and . . . told me what
had occurred.”25 Speaking to Perez convinced Harding that
further investigation was necessary in order to determine
whether discipline should be given to any of the employees
involved in the incident that morning, and he then telephoned
Myron Harpole to inform him of what, Perez said, had oc-
curred. Harpole agreed that Harding should continue his inves-
tigation; however, unaccountably, solely based upon Harding’s
report and without any corroboration or knowledge of Hernan-
dez’ version of the incident, he immediately became convinced
that Hernandez should be disciplined for misconduct.
Robin Brown-Rodriguez testified that, at the parties’ bar-
gaining session later that afternoon, after she raised the
Escobar-Perez incident, Harpole responded that he was glad she
had raised such a “serious incident” inasmuch as “. . . I believe
we had a very serious incident in housekeeping where an em-
ployee—and he pointed at [Hernandez] . . . went into house-
keeping unauthorized with a group of employees and had a
threatening confrontation with Carmen Perez.” She replied that
Hernandez “had every right” as a bargaining unit employee to
participate in union activities on his day off from work. Har-
pole responded that Hernandez had no right to go to the house-
keeping department from the food and beverage area, that Her-
nandez had violated a company rule about being on hotel prop-
erty 30 minutes prior to or after a shift, and that his confronta-
tion with Perez was a threatening one. He added that Respon-

25 According to Harding, what Perez told him was that Hernandez
“. . . was loud and very close to her and shaking papers.” She said that
Hernandez was the only member of the group who said anything and
that he said to her “. . . you have been abusing the employees. We want
you to stop.” Significantly, Perez failed to corroborate Harding with
regard to Hernandez having any papers in his hand, throwing papers at
her, or handing her a petition, and, if such a document existed, Respon-
dent failed to offer it as corroboration of Harding’s testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD860
dent would hold a disciplinary hearing “around his actions” and
repeated his statement “a couple of times” while looking di-
rectly at Hernandez. Harpole then asked Brown-Rodriguez
whether she or another union agent had authorized Hernandez’
conduct, and she replied that Hernandez was on the union nego-
tiating committee, as well as other employees, and he had the
right to engage in union activities, which our delegations were.
Harpole did not dispute the foregoing version of events. Ac-
cording to him, Brown-Rodriguez’ comments regarding Car-
men Perez’ alleged harassment of an employee “disturbed”
him, and he interrupted her, saying he had heard enough about
your complaints about Perez and he was going to permit Hard-
ing to call Valentin Hernandez to a hearing and determine if
discipline was warranted regarding an incident that morning
involving Hernandez and Perez. Harpole testified he added that
Hernandez could be represented and would be permitted to
present “his side” of what occurred and that the alleged mis-
conduct “. . . on a supervisor is unacceptable if true.”26
That evening, at approximately 8 or 9 p.m., while working,
Hernandez telephoned Perez at the housekeeping office. Dur-
ing direct examination, the former testified that he made the
telephone call because “I was . . . unsure . . . as to whether the
. . . matter may have been misconstrued by her and that, during
the conversation, he . . . [told] her what had happened was
nothing personal, that I had nothing against her personally. In a
certain way, I apologized just in case that matter was . . . mis-
construed.” According to Perez, “[H]e told me that he was
calling . . . to apologize, that his action he had taken earlier that
morning was incorrect. . . . You don’t deserve that . . . disre-
spect. . . . So I want you to forgive me but I felt pressured by
. . . those assholes at the Union.” She replied that she accepted
his apology. During rebuttal, Hernandez denied saying his
actions were “incorrect;” rather, “I said that perhaps this is not
the best manner to resolve things. . . . She said that there was no
problem, that she was accepting the apologies and that there
[were] no problems.” Asked why he telephoned Perez, Her-
nandez said, “. . . when I did it, I did not feel I did anything
wrong. But, when I arrived at work . . . Mr. Orozco called me
into his office. . . . and he told me that Mr. Harpole was very
upset. . . . And he asked me why I had gone over to [Perez]
when she had not done anything wrong to me. He told me that
she was a little bit shook up for what had happened and that is
what prompted me to call her.”
Three or four days later, Harding concluded his investigation
of what transpired between Hernandez and Perez by meeting
with the employee and Brown-Rodriguez for approximately 25
minutes. According to Hernandez, “[H]e only asked me what
had [occurred]. I [gave my version] . . . about the meeting with
Carmen Perez and he said that he was going to investigate and
that he would let me know whether I would be disciplined or
not . . . .” According to Harding, Hernandez did nothing less
than “. . . [admit] what he had done. . . . that he had gone down-
stairs to the housekeeping office. . . . and that [what occurred]

26 Harpole conceded that he characterized what occurred between
Hernandez and Perez as a “threatening confrontation” but denied di-
recting any comments to the employee—“. . . I was speaking to the
Union negotiating committee but principally to [Rodriguez].”
. . . was done in the confrontational manner.” With regard to
the latter point, Harding testified, Hernandez admitted “that he
confronted Carmen down in the office and gave her the papers.
He said he did what had occurred.”27 However, Harding con-
ceded that, in presenting his version of the incident, Hernandez
did not admit to shouting, yelling, or raising his voice at Perez,
to waving papers at her, or to his demeanor. He further con-
ceded that he failed to confront Hernandez with any of Perez’
assertions as to his behavior so as to afford the employee an
opportunity to admit or deny them28 and that Hernandez’ ver-
sion of the incident contained nothing of what Perez alleged.
During rebuttal, asked what he admitted to Harding during this
investigatory meeting, Hernandez said that he admitted entering
the hotel on the morning of July 23, visiting the housekeeping
office with other employees, informing the Union of the dele-
gation, and subsequently apologizing to Perez. Whatever he
learned from Hernandez, according to Harding, immediately
after the meeting concluded, “I called Mr. Harpole and gave
him the facts, my findings.”29
Harding admitted that Perez’ report of what occurred30 and
his meeting with Hernandez and Brown-Rodriguez constituted
the extent of his “investigation” of the July 23 incident. He
further admitted that he failed to interview any of the employee
witnesses and that his predisposition was to accept Perez’ ver-
sion of what occurred as “I find her very trustworthy.” In any
event, the next day, Harding and Harpole again spoke about
Hernandez, and, according to Harding, they reached a decision
to reprimand the employee with a warning. Harpole testified
that Hernandez deserved discipline as “this group, who were
. . . relatively inexperienced people, came in there to surprise
her, . . . . They were intruding on her in the midst of her work.
. . . . They were there to . . . chew her out. . . . for her treatment
of Vicky Flores. . . .they were there to discipline her, criticize
her and warn her.”31 As to the warning notice itself, during his

27 During cross-examination, Harding listed as Hernandez’ admis-
sions—coming onto the property, gathering with others, confronting
Perez, informing the Union of his intentions that day, and apologizing
to Perez.
28 Subsequently, Harding changed his testimony, stating that he did
explain to Hernandez that Perez had accused him of being “overly
aggressive” and that his actions made her feel threatened and scared.
Hernandez responded that “he did not know.”
29 According to Harpole, with regard to the investigation, “It was
pretty much agreement on . . . some of the basic facts but it was more a
matter of degree. In other words, they both said that he was there.
They both said that he was there as the leader of a group of several
other people.” They disagreed (“the he said, she said”) as to how
“loud” he was and how “abusive” he was.
30 Perez stated that she did draft a written report with regard to what
occurred on July 23, and Harding testified that she gave it to his secre-
tary. Whether said document exists and is corroborative of Perez’
version of events can not be determined; for Respondent failed to pro-
duce it at the hearing.
31 Asked if Perez reported to him that other employees overheard the
confrontation, Harpole testified he believed so, and “. . . that was part
of the humiliation happening in front of her subordinates.” There is
nothing in Perez’ testimony regarding the presence of other employees
in the housekeeping office during the incident, and she admitted being
unable to see whether any employees entered or left the room while
Hernandez was there.
HACIENDA HOTEL, INC. 861
direct examination, Harding stated that Harpole was to draft the
reprimand letter and that the latter did so and faxed a copy to
him, which they then discussed but not “line-by-line.”32 He
added that he concurred with the stated reasons for the warning
and that the final version of the reprimand was drafted by him
“on my computer,” and “I presented it to Hernandez.” During
cross-examination, Harding contradicted himself, egoistically
taking credit for the warning letter, stating he drafted it from
“my notes. All the facts were found by myself. I did the inter-
views. I did the questioning.” However, when asked if Har-
pole had, in fact, drafted the document, Harding reversed him-
self, stating, “He did, yes . . . . But . . . he sent it to me,” and
“. . . I retyped it.” Asked, then, whether Harpole drafted the
warning letter and he merely retyped it, Harding replied, “cor-
rect.”
The disciplinary warning letter, dated August 3, 2004, and
signed by Harding, was given to Hernandez. The letter lists
four reasons for the reprimand. These are:
1. interrupting and interfering with the head of the
Hacienda Hotel’s housekeeping department during the
course of her duties;
2. attempting to usurp, and interfere with, the sole
right of the Hacienda Hotel’s General Manager to direct
and to discipline, the head of the hotel’s housekeeping de-
partment in connection with the performance and conduct
of her duties;
3. entering upon the premises of the Hacienda Hotel
more that 30 minutes prior to the beginning of your shift,
in violation of the provisions of the last Union Contract,
without prior consent from the General Manager; and
4. failure to bring your complaint of supposed mis-
conduct of the head of the hotel’s housekeeping depart-
ment direct to the General Manager. . . .
The disciplinary letter then continues with the following:
It is found that, on July 23, 2004, at approximately
11:30am, you initiated a contentious confrontation of the
Hotel’s Head Housekeeper, Carmen Perez, while she was
working in her office in the Housekeeping Department. In
front of her subordinates in the Housekeeping Department,
you accused her of mistreatment of an employee and
threatened her.
You are an employee in the Food and Beverage De-
partment and not of the Housekeeping Department. Your
work station is hundreds of yards from the office of Car-
men Perez. Your work shift on July 23rd did not begin
until 5pm; and your presence on the hotel’s property at the
time of the confrontation was in violation of Section
6.4.2(b) of the most recent Union Contract and of the rules
regarding Employees, which include that Employees are
not to enter the hotel premises more than 30 minutes be-
fore their work shifts.
It is noted that you said the paid officials of your Un-
ion . . . knew beforehand of your plan for this conduct.
Under the circumstances, it is concluded that you were in

32 Rather than taking credit for the document, Harpole averred that
he merely “participated” in the drafting.
fact encouraged by them. In view of your relative inexpe-
rience and immaturity, this is an aspect of mitigation. . . .
According to Harpole, the first stated reason for the repri-
mand is “. . . the most serious aspect of the matter and goes to
the heart of it.” According to him, what rendered it such a “se-
vere” transgression was Hernandez’ “. . . intrusion into the
work area of an extremely busy executive in the midst of her
duties and in front of her subordinates,” berating her. Asserting
that Perez is always busy and “. . . particularly so at checkout
time which is around eleven o’clock in the morning,” he added
that, “. . . if employees can act in the manner that Mr. Hernan-
dez did at the time and place of their choosing with senior su-
pervisors at the most intense time they’re working, then any
employee at any time could disrupt the activities of the hotel.”33
Likewise, Harding testified that the first stated reason consti-
tuted the essence of Hernandez’ misconduct on July 23—“he
was harassing and disrupting and refused to leave, . . . . He
harassed and disrespected to the point of scaring a manager,
. . . .” With regard to Hernandez and the employee delegation,
which both Harpole and Harding characterized as a “gang,”
assertedly interrupting Perez’ work, Harpole testified that Re-
spondent’s only concern regarding employee delegations is that
they “. . . be conducted in a proper manner . . .” and that delega-
tions, such as the one to Perez, are conducted in an “inappropri-
ate” manner when they “. . . intrude the people who are busy at
work, carrying out the operating functions of the hotel or in-
truding with the enjoyment of the Hotel by guests, either of
those.” He added that even a mere two minute interruption of
her work would have been “impermissible.” Harpole’s strict
view must be contrasted with that of Frank Godoy, who was the
general manager of Respondent’s hotel prior to Harding and
who stated that he “. . . always had the policy that any employ-
ees or group of employees were welcome in my office at any
time as long as it was not disrupting something . . .” and that he
would only discourage groups of employees from meeting with
department heads if done in an unorganized manner. Likewise,
Harding never requires employees to make appointments to see
him, stating, “My office door is open. That is an open door
policy . . . .” Finally, Carmen Perez testified that, whether she
immediately meets with employees, who ask to speak to her,
depends upon the “importance” of the matter. Thus, if it is a
“serious” matter necessitating a lengthy conversation, she re-
quires employees to make an appointment; however, if rela-
tively “simple,” she “. . . will just sit . . . and discuss it there.”
Concerning the second reason for disciplining Hernandez,
Harpole explained that it referred to “. . . the report to me . . .
that [Hernandez] attempted to instruct Carmen Perez on how
she should direct and discipline her employees. In particular,
how she should instruct and direct Vicky Flores” He added
that, while doing so, Hernandez spoke “harshly” to her and that,
if employees perceived Perez as acting improperly, they should

33 Harpole introduced another element into the discipline of Hernan-
dez, asserting that it was improper for him to have taken a complaint,
regarding an employee who worked in a different department of the
hotel, directly to the head of that department. However, he conceded
that there is no work rule in the employee handbook which renders such
an act as misconduct warranting discipline.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD862
have gone to the general manager—“you do not criticize
[Perez] in her face. You go to someone who . . . has the author-
ity to instruct her.” In this regard, according to Harpole, Her-
nandez could have addressed the matter by leading a delegation
to Harding, for it was solely within the province of the general
manager to speak to a department head regarding treatment of a
subordinate.
The third reason for Hernandez’ discipline concerns the un-
disputed fact that, notwithstanding his work shift was not
scheduled to begin until 5 p.m. on July 23, Hernandez entered
the hotel shortly before 11:30 a.m. that day in order to lead the
delegation to Perez’ office. In this regard, listed in Respon-
dent’s employee handbook34 are various types of “unaccept-
able” employee conduct, which may result in discipline,35 and
the eleventh of the stated misbehaviors is “being on the prem-
ises more than [a half] an hour before your shift begins or after
it ends.”36 Harding testified that the policy behind rule 11 is
that “it helps us maintain order and control and further issues
that may arise from employees being on the hotel property
before or after their shifts.” Asked when Respondent does not
want employees on the property when not scheduled to work,
he replied, “[A]ll of the time.”37 As to this, the record discloses
just one prior instance of an employee being disciplined for
violating rule 11, and this occurred in 1997 only after the em-
ployee had been verbally warned several times regarding com-
ing to work early and, after work, remaining on the property in
order to “chit-chat” with other employees. Harpole conceded
that prior to disciplining an employee for violating this rule,
Respondent would first consider the conduct, in which the em-
ployee engaged, on its property and, when asked if Hernandez
had done nothing more than violating the above work rule
would he have been disciplined, he replied, “. . . probably not.
They don’t arrest people for jaywalking all the time.” On this
point, while Harding mentioned that employees are not prohib-
ited from arriving at work early in order to obtain their pay-
checks, Harpole conceded that the hotel has never set forth any
of the permissible reasons for employees to be in the hotel so as

34 Each employee receives a copy of the employee handbook during
his or her orientation after hire and is expected to read it.
35 Respondent maintains a disciplinary policy with levels of disci-
pline ranging from a verbal warning to termination. The severity of the
discipline to be utilized in any given situation is determined after an
investigation and after consideration of eight listed factors including the
impact of the misconduct on other employees, the employee’s prior
disciplinary record, the quality of his or her job performance, the em-
ployee’s job tenure, the circumstances surrounding the misconduct, and
existing precedents.
36 Similar language appears in the parties’ expired collective-
bargaining agreement.
37 Asked if Respondent maintained a work rule prohibiting employ-
ees from being on hotel property on their days off, notwithstanding the
wording of the eleventh work rule, Harpole insisted that the provision
also pertained to such conduct. According to him, the rule is “explicit”
on this point, and employees know not to be at the hotel on their days
off. When asked the same question, contradicting Harpole, Harding
pointed to the “use of facilities” provision of the employee handbook.
Moreover, he added that there is no absolute ban on employees being at
the hotel on their days off; they can do so after seeking and being
granted permission.
not to be in violation of rule 11. Asserting he has never read
the employee handbook, Valentin Hernandez claimed igno-
rance of rule 11 prior to receiving the written reprimand. Nev-
ertheless, while conceding he may have been in violation of the
rule on July 23, he testified that each of the prior delegations, in
which he took part, occurred in the morning and he was not
spoken to by either Katzman or Harding or disciplined for vio-
lating rule 11,38 and that he is aware of, at least, two other em-
ployees who habitually arrive early at work.
With regard to Respondent’s fourth stated reason for disci-
plining Hernandez, there is no dispute that the alleged discrimi-
nate and the delegation of employees went directly to Carmen
Perez regarding her alleged mistreatment of Vicky Flores.
According to Myron Harpole, “. . . it’s expressed in the . . .
contract that matters of criticism of a supervisor are to go to the
next highest supervisor.” In this regard, paragraph 27.3 of the
parties’ most recent collective-bargaining agreement39 states,
“Any employee who believes that he or she has been harassed
or discriminated against in any way, including but not limited
to sexual harassment, shall report such harassment . . . to an
Employer supervisor or officer who is senior in authority to any
employee of the Employer who the Employee believes is en-
gaged in such harassment or discrimination.” Harpole added
that, if other employees acted as did Hernandez on July 23, “. . .
then we have potential chaos in the operation of our hotel and
that’s just intolerable.” During cross-examination, when asked
who is senior in authority, he stated that this means senior “to
the employee who the employee believes engaged in the har-
assment.” However, when asked if an employee could be dis-
ciplined for informing his or her supervisor that his harassment
is unwelcome, Harpole replied, “We wouldn’t construe it that
way.” Further, paragraph 27 is quite specific as to its areas of
concern and does not appear to apply to general complaints of
mistreatment by a supervisor, and, while Harpole asserted that
employees are subject to discipline for acting in violation of
paragraph 27.3, Harding conceded that there is no work rule in
the employee handbook advising employees regarding possible
discipline for bringing a complaint to the wrong supervisor.
Finally, Hernandez testified he had never been told either that
the July 23 delegation, regarding Vicky Flores, properly should
have gone to Harding or that he could be disciplined for bring-
ing the matter directly to Perez.
The complaint alleges that Respondent engaged in conduct,
violative of Section 8(a)(1) and (3) of the Act, by issuing its
August 3 disciplinary warning letter to Valentin Hernandez. In
his posthearing brief, counsel for the General Counsel poses
alternate theories underlying the alleged violation of the Act—

38 In this regard, Salvador Vasquez, a houseman for Respondent, tes-
tified that he participated in two delegations in 2004, each occurring
more than a half hour after the end of his work shift, and that he knows
of other employees who also participated in the delegations after the
end of their work shifts. According to Vasquez, neither he or the other
employees received discipline for violating rule 11.
39 Par. 27 deals with prohibitions on Respondent and the Union from
engaging in discrimination because of race, religion, color, sex, age,
national origin, or ancestry. Thus, in context, sec. 3 deals with the
proper individual to whom complaints of discrimination or harassment,
based upon the above factors, should be brought.
HACIENDA HOTEL, INC. 863
that, rather than for legitimate business concerns, Respondent
issued the warning letter to Hernandez in order to discourage
him from engaging in activities in support of the Union—a
violation of Section 8(a)(1) and (3)—or that the alleged mis-
conduct, in which Hernandez engaged and for which he re-
ceived discipline, was, in reality, protected concerted activity—
a violation of Section 8(a)(1) of the Act. Contrary to the Gen-
eral Counsel, Respondent argues that its discipline of Hernan-
dez was motivated by legitimate business concerns, his insub-
ordination and violations of work rules. At the outset, I must
determine what occurred on July 23 after the employee delega-
tion, led by Hernandez, entered the housekeeping office and, in
order to do so, resolve the conflicting testimony of the several
witnesses. Initially, with regard to credibility, I was impressed
by the testimonial demeanor of Hernandez, who is, of course, a
current employee and was testifying contrary to the interests of
his employer. He appeared to be always testifying in a direct
and candid manner and, therefore, I shall rely upon his version
of what occurred while he was inside the housekeeping office
and, later, during his telephone conversation with Perez. Fur-
ther, Paula Casillas impressed me as being an honest witness,
and I note that, as did Hernandez, she testified directly in front
of Myron Harpole. While contradictory regarding one point,40
they generally corroborated each other as to what occurred in
the housekeeping office on July 23—particularly regarding
Hernandez’ demeanor and actions, what he said, where he
stood while speaking to Perez, and the length of time the em-
ployees remained in the room, and I, likewise, shall rely upon
Casillas’ account of what occurred. Also, Robin Brown-
Rodriguez impressed me as being a trustworthy witness, and I
shall rely upon her herein. With regard to the witnesses who
testified on behalf of Respondent, inasmuch as her timecard
shows her clocking in from lunch on July 23 at 12:11 p.m.,
approximately 45 minutes after Hernandez’ delegation arrived
at the housekeeping office and, at least, 40 minutes after Perez,
who asserted the delegation remained in the housekeeping of-
fice for just 15 minutes, herself said the employees left her
office, I believe it was impossible for Rosa Hernandez, who
claimed she was inside the housekeeping office in order to
clock in after lunch, to have observed Hernandez interacting
with Perez, and, therefore, I completely discount her feigned
testimony. As I previously stated, Carmen Perez failed to im-
press me as being a straightforward witness, and, in comparison
to Hernandez, she was much less frank and trustworthy, always
appearing to be attempting to buttress Respondent’s position.
In particular, I note that she was impeached by her pretrial affi-
davit as to her assertion Hernandez continually repeated him-
self regarding her mistreatment of employees, an important
point given her asservation concerning the amount of time Her-
nandez remained in the housekeeping office, and that her asser-
tion of being too busy to meet with his delegation was undercut
by her willingness, at approximately the same time on another

40 They did disagree as to whether Perez sat throughout the meeting
(Casillas) or stood at some point (Hernandez). However, inasmuch as
Perez admitted that she did, in fact, stand up while Hernandez was
speaking to her, I find this minor contradiction not particularly signifi-
cant.
day, to meet with another group of employees to discuss their
plan to hold an employee vote on a Respondent contract pro-
posal. By his demeanor while testifying, Joseph Harding ap-
peared to be duplicitous and a disingenuous witness, and I am
unable to credit any portion of his testimony. In this regard, I
note his utterly contradictory testimony regarding Respondent’s
preparation of the disciplinary warning letter issued to Hernan-
dez. Moreover, while he asserted that, on July 23, Perez re-
ported to him that Hernandez “threw papers at her” and gave
her some sort of a petition, Respondent offered no such docu-
ment as corroboration and Perez failed to mention any of the
foregoing during her testimony. Finally, while, during his tes-
timony, Myron Harpole acted as a forceful advocate of Re-
spondent’s legal position, his demeanor, in my view, was that
of a witness who was not squeamish about tailoring his testi-
mony in order to buttress said position. Thus, I found incon-
ceivable his assertion that, notwithstanding its clear wording
and Harding’s belief that another rule governs the subject, rule
11, in the employee handbook, is “explicit” with regard to not
permitting employees to be in the hotel on their days off and,
unconscionable, if true, his tropism, without any investigation,
to have immediately, and unequivocally, accepted Perez’ ver-
sion of her encounter with Hernandez and concluded the latter
had engaged in misconduct, and I note that his asservation,
regarding Hernandez berating Perez in the presence of other
employees, who may have been in the housekeeping office on
July 23, was not corroborated by Perez.
Based upon the foregoing, I find that, as a result of incidents
involving Vicky Flores and Adelina Escobar and after inform-
ing union officials of their intent, Valentin Hernandez, who had
been an active supporter of the Union and had participated in
the collective bargaining between Respondent and the Union,
and other employees participated in a delegation to the house-
keeping office on July 23 in order to present an oral petition to
Carmen Perez regarding, what the employees perceived as, her
mistreatment of the two housekeeping employees; that Hernan-
dez was the leader of the delegation; that the employees arrived
at the housekeeping office at approximately 11:30 in the morn-
ing and, once inside the room, Hernandez moved to a position a
few feet from the photocopying machine next to Perez’ desk
and, at least, 7 feet from her and the other employees stood
nearby; and that, upon noticing the employees, Perez, who
appeared calm and relaxed, greeted them and asked how she
could help them. I further find that Hernandez, who had noth-
ing in his hands but waved his arms while speaking, replied that
the employees were there because Vicky Flores had informed
them of Perez’ mistreatment of her, including raising her voice
at Vicky; that the employees wanted Perez to immediately stop
mistreating the employees who she supervised; and that those
employees were at the hotel to work and not to be yelled at.
Also, I find that Perez, who arose from her desk chair at some
point, responded, asking why the employees in the delegation
were there if they knew just one side of the story; that Hernan-
dez, obviously bent upon lecturing to Perez in a stern and per-
haps unwelcome manner, interrupted her, saying they were not
there to confront her or to argue with her but, rather, only to ask
her to respect the employees and nothing more; that, then, Her-
nandez and the other employees abruptly turned and left the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD864
housekeeping office; that, during the incident, Hernandez nei-
ther ever raised his voice, used profane language, repeated his
words, waved his hand in her face, nor moved toward Perez in
a threatening manner and the latter never backed away from
him in a frightened manner; and that the entire incident lasted
no longer than 2 minutes.41 Next, I find, during a bargaining
session later in the day, that, while pointing directly at Hernan-
dez, Myron Harpole accused him and the other members of the
delegation of making an unauthorized visit to Perez’ office
earlier in the day and engaging in a “threatening confrontation”
with her; that Harpole added that Respondent would hold a
disciplinary hearing “around his actions;” and that Harpole then
accusingly questioned Brown-Rodriguez as to whether the Un-
ion had authorized the delegation to Perez. Furthermore, I find,
at some point after beginning work and after his supervisor,
Francisco Orozco, informed him Harpole was upset at what
occurred during the delegation to Perez’ office and Perez her-
self was “a bit shook up;” that, while he believed he had done
nothing wrong, Hernandez telephoned Perez at the housekeep-
ing office; that he told her what he had said was not directed
personally at her and he had nothing against her personally; that
he also told her, if she had misconstrued what he said, perhaps
the best way to resolve things was to apologize to her; that
Perez replied there was no problem and she accepted his apol-
ogy; and that the conversation then ended. Finally, I find that
Respondent issued a disciplinary warning letter to Hernandez
on July 23 and that, as admitted by Harpole and Harding, the
crux of Respondent’s rationale for disciplining him was the
timing of the delegation to Perez’ office on July 23, the manner
in which Hernandez acted, and what he said to Perez, and that
Harpole and Harding believed Union officials were aware of
and encouraged Hernandez and the other participants to engage
in their delegation that day.
While contrary to Respondent, the General Counsel and the
Union contend that, based upon the foregoing matrix of facts,
Respondent engaged in conduct violative of Section 8(a)(1) and
(3) of the Act, all parties agree as to the applicable analytical
approach for this allegation. Thus, as explained by the Board in
Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999), pursuant
to Wright Line, 251 NLRB 1083, 1089 (1990), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1981), approved
in Transportation Management Corp., 462 U.S. 393 (1983), in
order to have established a violation of Section 8(a)(1) and (3)
of the Act, the General Counsel must have proven, by a pre-
ponderance of the evidence, that antiunion animus was a moti-
vating factor in Respondent’s conduct. Once such a showing
was made, the burden shifted to Respondent to demonstrate that
the same action would have taken place in the absence of, or
notwithstanding, Hernandez’ activities in support of the union.
To have sustained its initial burden, that of persuading the
Board Respondent acted out of antiunion animus, the General

41 I need not and do not make any findings as to whether Perez alone
concocted her duplicitous version of what occurred between Hernandez
and her in her office on July 23 or whether she and Harding together
decided upon a version which best suited Respondent’s interests. Fur-
ther, I do not and need not decide whether Harpole was aware of any of
Perez’ or Harding’s embellishments.
Counsel must have shown (1) that Hernandez was engaged in
activities in support of the union; (2) that Respondent was
aware of or suspected his union sympathies or activities; and
(3) that Hernandez’ activities in support of the union were a
substantial or motivating factor underlying Respondent’s ac-
tions. Such motive may be established by circumstantial evi-
dence as well as by direct evidence and is an issue of fact. FPC
Moldings, Inc. v. NLRB, 64 F.3d 936, 942 (4th Cir. 1995), enfg.
314 NLRB 1169 (1994). Four points are relevant to the above-
described analytical approach. First, in determining whether
the General Counsel has established a prima facie showing of
unlawful animus, the Board will not quantitatively analyze the
effect of the unlawful motive. The existence of such is suffi-
cient to make the acts and conduct at issue violative of the Act.
Wright Line, supra at 1089 fn. 4. Second, once the burden
shifted to Respondent, the crucial inquiry was not whether Re-
spondent could have engaged in the alleged unlawful acts and
conduct but, rather, whether Respondent would have done so in
the absence of Hernandez’ support for the Union. Structural
Composites Industries, 304 NLRB 729 (1991); Filene’s Bar-
gain Basement, 299 NLRB 183 (1990). Third, pretextual dis-
charge cases should be viewed as those in which “. . . the de-
fense of business justification is wholly without merit” (Wright
Line, supra at 1089 fn. 5), and the “burden shifting” analysis of
Wright Line need not be utilized. Arthur Young & Co., 291
NLRB 39 (1998). Finally, regarding the latter point, “it is . . .
well settled . . . when a respondent’s stated motive for its ac-
tions is found to be false, the circumstances warrant the infer-
ence that the true motive is an unlawful one that the respondent
desires to conceal. Flour Daniel, Inc., 304 NLRB 970, 970
(1991); Shattuck Den Mining Corp. v. NLRB, 362 F.2d 466 (9th
Cir. 1966).
In these regards, Hernandez was a strong supporter of the
Union and participated in the collective bargaining between
Respondent and the Union as a member of the latter’s em-
ployee bargaining committee. While the record is uncertain as
to whether the Union actually authorized the July 23 delegation
to Carmen Perez’ office, union officials, including Brown-
Rodriguez, were aware of the underlying reasons for and of the
delegation itself, and union officials trained Hernandez and
other employees as to their behavior during delegations. Also,
it is clear that, while participating in the delegation and meeting
with Perez, Hernandez and the other employees were engaged
in protected concerted activities. As to this, Hernandez and the
other employees went to Perez in order to protest her alleged
mistreatment of two housekeeping employees, whom she su-
pervised, and the Board has long held that group complaints
about the quality of supervision are directly related to working
conditions and fall within the “rubric” of protected concerted
activities. Rhee Bros., Inc., 343 NLRB 695 fn. 3 (2004); Astro
Tool & Die Corp., 320 NLRB 1157, 1162 (1996); Brother In-
dustries, 314 NLRB 1218 (1994). Moreover, notwithstanding
whether or not the Union authorized the July 23 delegation to
Perez, as, in his August 3 reprimand letter to Hernandez, Hard-
ing specifically stated his belief that the Union encouraged the
July 23 delegation, for which Hernandez was the spokesperson,
Respondent obviously suspected that Hernandez had partici-
pated in a union-sponsored activity. While these facts are clear,
HACIENDA HOTEL, INC. 865
the fundamental issue is, of course, whether the General Coun-
sel has established that Respondent was motivated by union-
related concerns in disciplining the alleged discriminate—
Hernandez. On this point, while no direct evidence of motive is
extant in the record, I have previously concluded that Respon-
dent, through Perez, unlawfully threatened reprisals against an
employee for engaging in activities in support of the Union.
Further, I have found that, during the bargaining session be-
tween the parties in the afternoon of July 23, after pointing at
the alleged discriminatee, who, along with other members of
the employee negotiating committee, was present, and warning
that a disciplinary hearing, involving his conduct earlier in the
day, would be held,42 turned to Brown-Rodriguez and de-
manded to know if the delegation to Perez had been a union-
authorized event and that, as stated above, in his disciplinary
letter to Hernandez, Harding stated that union officials knew of
the delegation “beforehand” and encouraged it but that, in view
of his “relative inexperience and immaturity,” such would be
viewed as a mitigating factor insofar as the severity of disci-
pline afforded to Hernandez. As argued by counsel for the
Union, one may justifiably infer, from both Harpole’s accusa-
tion and Harding’s comment, that Respondent disciplined Her-
nandez, in part, because it believed the Union had encouraged
and persuaded him to lead the delegation to Perez while a more
mature employee, a less fervent supporter of the Union, would
have resisted the Union’s entreaties. Finally, concerning moti-
vation, as Harpole and Harding conceded that Hernandez’ con-
duct inside the housekeeping office was the predominant under-
lying reason for disciplining him and as, in accord with my
credibility resolutions and findings of fact, I believe that Re-
spondent’s version of Hernandez’ behavior and actions while
meeting with Carmen Perez was a canard, justifying the disci-
pline given to him, the inference is warranted that Respondent’s
true motivation was to discourage employees from engaging in
lawful union activity. Accordingly, I am convinced that the
General Counsel has established that Respondent was unlaw-
fully motivated in administering discipline to Hernandez.
In these circumstances, the burden shifted to Respondent to
establish that it would have disciplined Hernandez notwith-
standing the presence of unlawful animus underlying the disci-
pline afforded to him. In this regard, I reiterate my view that,
notwithstanding Hernandez may have lectured Perez in an un-
welcome and stern manner, the initial, and concededly the pre-
eminent, reason for its discipline of the alleged discriminate, his
asserted misconduct while speaking to Perez, was a sham. On
this point, I note the absurdly deficient nature of Harding’s
putative investigation of the incident, including the general
manager’s failure to seek denials of Perez’ allegations from
Hernandez or to locate and question potential witnesses, and

42 In the circumstances of his accusatory question to Brown-
Rodriguez, I agree with counsel for the General Counsel that, rather
than a mere statement of Respondent’s intent to undertake an investiga-
tion of what occurred inside Carmen Perez’ office, Harpole’s statement,
that Respondent would hold a disciplinary hearing on Hernandez’ con-
duct, was nothing less than an implied threat of reprisals to Hernandez
and to the other employees present if they engaged in activities in sup-
port of the Union. Accordingly, I find Harpole’s statement to have
been in violation of Sec. 8(a)(1) of the Act.
believe Harding was merely camouflaging Respondent’s fervor
to discipline the alleged discriminate. Moreover, assuming
Hernandez acted in an abrupt and disrespectful manner toward
Perez, the Board has held that, while engaged in protected con-
certed activity, regardless of the inaccuracy of an employee’s
comments or their lack of merit or even his usage of foul lan-
guage or epithets directed toward a member of management,
such would not be sufficient to require forfeiture of the protec-
tion of Section 7 of the Act. Guardian Industries Corp., 319
NLRB 542, 549 (1995); Delta Health Center, 310 NLRB 43
(1993). Also, while Harpole emphasized how busy Perez is
before noon and the intrusive nature of the Hernandez delega-
tion, as will be discussed infra, Perez was not too busy, at the
same time on another day, to have met with a group of house-
keepers and discussed the propriety of an employee vote on an
employer contract proposal, and Harding admitted he never
requires employees to make appointments to see him, even
boasting of “an open door policy.” Turning to Hernandez’
violation of Respondent’s work rules, while he may have acted
in violation of rule 11 when he entered the hotel shortly before
11:30 a.m. in order to lead the delegation to Carmen Perez, I
have found nothing opprobrious regarding his behavior in the
housekeeping office while meeting with Perez, and Harpole
likened the matter to jaywalking, admitting that, if Hernandez
had done nothing more than violating the work rule, he would
“probably” not have been disciplined. Moreover, while partici-
pating in prior delegations to Harding and to Katzman, Hernan-
dez seemingly had acted in violation of rule 11 but had never
been disciplined for such. Further, Harding admitted that there
are permissible reasons for employees to be in the hotel and not
be in violation of rule 11 but that none of these are set forth in
the employee handbook. Next, Harpole asserted that Hernan-
dez had acted in violation of paragraph 27.3 of the most recent
collective-bargaining agreement by going directly to Perez in
order to complain about her alleged mistreatment of a subordi-
nate rather than to her direct supervisor Harding. However, the
provision, to which Harpole referred, specifically pertains to
harassment and discrimination, including sexual harassment,
and not to general complaints of mistreatment by a supervisor
and, while Harpole also asserted that employees are subject to
discipline for bringing complaints to the wrong supervisor, he
conceded that there is no work rule in the employee handbook
advising employees regarding possible discipline doing so. In
these circumstances, I find that Respondent failed to establish
that it would have disciplined Hernandez notwithstanding har-
boring unlawful animus and that, accordingly, it acted in viola-
tion of Section 8(a)(1) and (3) of the Act by issuing a written
warning to the alleged discriminatee for leading the delegation
to Perez on July 23.43

43 Even absent the existence of unlawful animus, under Burnup &
Sims, Inc., 379 U.S. 21 (1964), Respondent’s discipline of Hernandez
was violative of Sec. 8(a)(1) of the Act. Thus, I have previously con-
cluded that he engaged in protected concerted activities by leading a
delegation of employees to Carmen Perez in the housekeeping office
and meeting with her and that lecturing to Perez regarding how she
should be treating her subordinates and not permitting her to speak did
not constitute conduct which would have deprived him of the protec-
tion, afforded by Sec. 7 of the Act. Further, I have found that Hernan-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD866
D. Respondent’s Involvement with the Ballots During the
Employees’ Vote on Respondent’s Contract Proposal
The complaint alleges that Respondent bypassed the Union
and unlawfully dealt with its bargaining unit employees on two
separate occasions involving their vote on an employer contract
proposal. The genesis of these allegations occurred during the
parties’ bargaining session on July 23; there is no dispute that,
in the midst of bargaining over wages and other economic is-
sues, Myron Harpole turned toward the employee negotiating
committee and announced a last, best, and final offer. Accord-
ing to Robin Brown-Rodriguez, he said that “. . . the company
was pretty much at the end of the line, that they were going to
be giving an offer to the Union . . . [which] was close to the end
of the line and he wanted employees to vote on that offer. He
. . . told employees that . . . they had paid over $700,000 in dues
. . . over the years and that they had a right to demand a vote
from their leaders, they should ask [the Union] to put the ho-
tel’s offer to a vote, . . . within the next two weeks and that, if
they did not, he would come back [with a lesser offer] . . .
based on the wages and benefits of the surrounding El Segundo
hotels.” While it is unclear whether Brown-Rodriguez immedi-
ately rejected the offer, she apparently did reply that the Union
reserved the right to consider how to respond to it. Neverthe-
less, faced with Harpole’s demand for an employee referen-
dum, the Union never scheduled a bargaining unit vote on ac-
ceptance or rejection of Respondent’s proposal.
Lead housekeeper, Marta Lara, was among the bargaining
unit employees present at the July 23 negotiating session, and,
on the following Monday morning, dissatisfied with the Un-
ion’s inaction, she met with a group of employees and informed
them that Harpole wanted them to vote on Respondent’s con-
tract proposal, and “so that is when a group of employees [de-
cided to] do a voting . . . to see if they want . . . the pay in-
crease.” Later, at approximately 11:30 a.m., Lara, lead house-
keeper, Marisa Mejia, and two other housekeepers went to the
housekeeping office in order to speak to Carmen Perez. Ac-
cording to Perez, the employees “. . . mentioned to me that
there was a pretty large group of employees who were thinking
of [organizing an employee vote on Harpole’s contract pro-
posal].” Also, “. . . they wanted to make sure they were not
violating any company rule.” Perez responded that she would
get back to the employees as to whether conducting the vote
would violate any company work rule and that she thought they
could do so but only during their nonworking hours.44 Accord-

dez engaged in none of the misconduct, which was attributed to him by
Respondent. Therefore, in agreement with the General Counsel’s alter-
nate theory of the violation of the Act, I must conclude that Respondent
simply disciplined Hernandez because he engaged in protected con-
certed activities—clearly, an unlawful act.
44 During cross-examination, Perez said that, when Lara and the
other housekeepers met with her, it was “more or less” the same time of
day as when Hernandez and his delegation met with her. Also, she
averred that, while she was busy when Lara and the others came to
speak with her, they did not interfere with her work as “. . . they stayed
there for about 5 minutes.”
During cross-examination, Perez further testified that, later in the
day, she spent 15 minutes reviewing the collective-bargaining agree-
ment and then telephoned Harding, asking him the same question the
ing to Lara, later in the day, Perez informed her that conducting
an employee vote was “not a problem” as all the employees
were members of the Union, and that evening, after she told her
what to write, Marisa Mejia’s daughter drafted a handwritten
ballot form, concerning accepting or rejecting Respondent’s
contract offer, for Lara. The latter further testified that, the
next morning before Perez arrived at the housekeeping office,
utilizing the housekeeping photocopying machine, she pro-
duced numerous copies of the ballot (GC Exh. 2), and began
distributing these to bargaining unit employees; that, using
paperclips, she also attached copies of the ballots to the house-
keeping employees’ timecards, which were located next to the
timeclock in the housekeeping office;45 and that she gave sev-
eral copies of the ballots to Mejia, who was to distribute them
to food and beverage department employees.
Houseman, Salvador Vasquez, testified that he first saw cop-
ies of General Counsel’s Exhibit 2, the ballot, “with the time-
cards” in the housekeeping office one day in mid-July. Accord-
ing to him, “I came to punch out and [Perez] was there, putting
the papers with the time cards, and she saw me and pulled
back.” What he observed was Perez putting the ballots and
timecards together “with a paperclip.” Vasquez added that,
when he first observed her, Perez was standing in front of the
timecards, and, as he approached, “. . . she left and went next to
her desk, in her office.” Then, Vasquez punched his own time-
card, and, as he walked out of the housekeeping office, he ob-
served Perez walking back toward the timecards, and “she had
some folded papers in her hands.” Perez testified that she ob-
served Lara and Mejia producing the voting ballots on Har-
pole’s contract proposal in the housekeeping office by cutting
sheets of paper in half; that, one day upon arriving at work, she
observed folded sheets of paper attached to the timecards by
paperclips; that, while she did not see them doing it, she under-
stood Lara and Mejia were the individuals who attached the
papers to the timecards; and that, as she has responsibility to
handle the timecards in order to ensure that employees are
punching in and punching out, “if I had to touch the cards, I
probably touched the ballots.” However, while conceding the
foregoing, Perez specifically denied the actions, attributed to
her by Vasquez.
Marisa Mejia testified that she was responsible for distribut-
ing the ballots to the food and beverage department employees
in the hotel’s kitchen. According to her, she spoke to Francisco
Orozco, the manager of that department, as “I was entering and
he was leaving the coffee shop. . . . I asked him permission to
place some ballots so employees would learn of the meeting
that we had.” Specifically, she asked if she could clip the bal-
lots to the employees’ timecards in the kitchen, and Orozco
advised her not to do so. She then went inside the kitchen, and
“I handed [ballots] out to about five or six people and they

employees had asked her regarding whether conducting a vote would
violate any work rule. However, on this point, she was impeached by
her pretrial affidavit, in which she stated that it was not necessary to
speak to Harding because, at the bargaining session, Harpole said an
employee vote was what Respondent wanted.
45 Lara testified that she produced the copies of the ballots and at-
tached them to the timecards without Perez’ knowledge and before the
latter arrived at work.
HACIENDA HOTEL, INC. 867
signed them and then I went back.” Denying leaving any of the
ballots in the kitchen or with Orozco or clipping any to the
employees’ timecards, Mejia further testified that she retained
possession of all the signed and unsigned ballots, which she had
in her possession that day.
Orozco, who testified on behalf of the General Counsel,
stated that, during the summer, he was aware that an employee
vote was being conducted on an employer contract proposal
and that “. . . I knew something was going on. . . . when I was
approached by Joe Harding in my office” one afternoon. Hard-
ing asked “. . . if I would do him a favor,” and “. . . he had a
whole bunch of those ballots . . . and asked me to distribute . . .
those to the employees in the food and beverage area, and I
said, sure.”46 According to Orozco, he followed Harding’s
instructions, but he did not “feel comfortable” being asked to
distribute the ballots as Harding had “. . . put [him] in a spot
when . . . approached by . . . employees,” who were “discour-
aged” and believed he was “forcing” them to sign the ballots
because he was distributing them. Orozco testified he made it
clear to the employees that he was “not forcing anybody” to
sign a ballot and that if anyone did not want to fill out and exe-
cute a ballot, “do not do it.” Orozco estimated that he distrib-
uted 15 to 20 ballots between 1 and 2 p.m. and stated that each
employee, to whom he gave a ballot, returned it to him. Upon
receiving all the ballots which he distributed, Orozco immedi-
ately returned them to Joe Harding, who thanked him. Joseph
Harding testified that he became aware of the distribution of
ballots upon receiving a telephone call from a woman in Re-
spondent’s sales office.47 She told him that the employees were
putting notices on timecards, that Steve Sainz, a cook, was
ripping them down, and that the employees would like some
help. He further testified that, later in the afternoon, he walked
into Orozco’s office, sat down, told him what he had been
told,48 and said, “[P]lease help him out, see that they are able to
get their message across.” Stating that he had not yet seen any
of the ballots and denying ever giving any ballots to Orozco or
receiving any written ballots, Harding averred that it is “possi-
ble” that he was aware of the names of the employees who
were distributing the ballots and that he “might have” men-
tioned Lara and Mejia to Orozco. At this point in his testi-
mony, Harding changed his version of his conversation with
Orozco, stating he told the latter that “. . . the employees
needed some help putting these on the timecards. Please help
them out and make sure they are on their own time.”49 More-
over, while Harding opined that Orozco’s version of events was
wrong, he was then confronted with his pretrial affidavit
wherein he stated he did not have any conversations with
Orozco about the ballots prior to becoming aware of the instant
unfair labor practice charge. Finally, examination of the ballots

46 Orozco identified the documents as copies of GC Exh. 2.
47 He identified his caller as either Sandra Sooklal or Marisa Vega,
both of whom are sales managers.
48 Harding testified he also told Orozco that employees were pulling
“ballots” off the timecards and “its unfair.”
49 During cross-examination, Harding said that he specifically told
Orozco that “. . . if they put [the ballots] back on, let it happen. You
know, just let them do their thing.”
discloses that, at least, 12 food and beverage department em-
ployees signed ballots.
The complaint alleges that Respondent engaged in acts and
conduct violative of Section 8(a)(1)and (5) of the Act by by-
passing the Union and dealing directly with bargaining unit
employees when Perez allegedly “placed” copies of the ballots,
regarding Respondent’s contract proposal, with employees’
timecards and when Harding and Orozco participated in the
distribution of the ballots to bargaining unit employees. Again,
the credibility of the several witnesses is crucial to a determina-
tion as to whether Respondent engaged in the alleged unfair
labor practices, and, in this regard, I believe lead housekeepers,
Marta Lara and Marisa Mejia, and houseman, Salvador
Vasquez, were forthright witnesses, each testifying truthfully to
the best of his or her recollection. Likewise, I found Francisco
Orozco’s demeanor, while testifying, to have been that of a
candid and conscientious witness, and, as an admitted supervi-
sor, within the meaning of Section 2(11) of the Act, his testi-
mony, adverse to the interests of Respondent, constituted ad-
missions of fact. In contrast, I have previously stated my con-
clusions as to the mendacity of both Carmen Perez and Joseph
Harding. As to the former, I particularly note her admission
that she “probably” had touched the ballots, which were at-
tached to the timecards, and, as to Harding, my conclusion
concerning his guileful demeanor is enhanced by his contradic-
tory testimony, ultimately impeached by his pretrial affidavit,
regarding his conversation with Orozco. Accordingly, for my
findings of fact regarding the above allegations, I shall rely
upon the respective testimony of Lara, Mejia, Vasquez, and
Orozco, and the admissions of Perez.
Based upon the foregoing, regarding the Perez allegations, I
find that, shortly after Myron Harpole made his contract pro-
posal to the Union and demanded an employee ratification vote,
lead housekeeper, Marta Lara, who heard Harpole’s offer, met
with fellow bargaining unit employees and discussed it; that, as
a result of these discussions, Lara and other employees decided
to conduct an employee vote; that Lara and other housekeeping
employees met with Carmen Perez, who informed them that a
vote would not violate any of Respondent’s work rules but that
the vote could not be accomplished during worktime; that Lara
prepared the election ballots, by which employees would ratify
or reject Harpole’s contract proposal; and that, to ensure distri-
bution to all housekeepers, Lara attached copies of the ballot to
the housekeeping employees’ timecards with paperclips. I
further find that, at a time subsequent to Lara attaching copies
of the ballots to the housekeeping employees’ timecards,
houseman, Salvador Vasquez, observed Carmen Perez handling
the ballots and timecards; that the latter noticed Vasquez ob-
serving her and backed away; and that Perez continued what
she was doing as Vasquez left the room. As to the allegations
involving Orozco and Harding, I find that, sometime after Har-
pole made his contract proposal, Harding came to Orozco’s
office, carrying copies of the ballot, which had been prepared
by Lara; that Harding asked Orozco to do him a favor and dis-
tribute the ballots to the employees in his department; that
Orozco agreed to do so and gave ballots to approximately 20
employees; that, in following Harding’s instructions, Orozco
told the employees, most of whom believed he was forcing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD868
them to fill out their ballots, he was not demanding that they do
so and, if he or she was apprehensive about filling out a ballot,
then, not to do so; and that, upon receiving the ballots from
employees, who completed the documents, Orozco returned
them to Harding, who thanked the former.
The Supreme Court and the Board have long held that an
employer must bargain exclusively with the majority represen-
tative of its employees with respect to the terms and conditions
of employment of its bargaining unit employees. Medo Photo
Supply Corp., 321 U.S. 678 (1944); Permanente Medical
Group, 332 NLEB 1143, 1144 (2000). In this regard, the Su-
preme Court has stated that the obligation to bargain with the
majority representative is an “exclusive” one and imposes a
“negative duty” not to bargain with any other, including the
bargaining unit employees themselves. Medo Photo Supply
Corp., supra at 684. For determining whether direct dealing
with its bargaining unit employees, in violation of Section
8(a)(1) and (5) of the Act, has occurred, the Board utilizes a
three-pronged test—(1) the respondent must have communi-
cated directly with its union-represented employees; (2) the
discussion was for the purpose of establishing or changing the
employees’ wages, hours, or other terms and conditions of em-
ployment; and (3) the communication was to the exclusion of
the union. Permanente Medical Group, supra. Applying this
test to the Perez allegation, I do not believe her actions consti-
tuted communicating with bargaining unit employees. Thus, I
have found that Marta Lara was the employee who attached the
voting ballots to the housekeeping employees’ timecards, and I
believe that, at most, Vasquez probably came upon Perez han-
dling the timecards in her supervisory capacity, such as for
monitoring time and attendance or ensuring employees were
clocking in and out, and, by necessity, also handling the folded
ballots. In these circumstances, while certainly problematic,
Perez’ actions did not arise to the level of unlawful direct deal-
ing. On the other hand, the actions of Harding and Orozco
patently constituted direct dealing with bargaining unit employ-
ees. Thus, Orozco followed Harding’s instructions and com-
municated directly with Respondent’s bargaining unit employ-
ees by distributing to and collecting from them copies of the
election ballots, the said ballots were for the purpose of ratify-
ing or rejecting Respondent’s contract proposal regarding an
increase in the bargaining unit employees’ wage rates; and the
Union never authorized such a vote, which was originated by
Marta Lara. Absent record evidence, divining why and how
Harding became involved in the distribution of the ballots
would be mere speculation. However, Respondent obviously
had an interest in the outcome of the vote, and, by enmeshing
itself in Lara’s and other employees’ unauthorized activity,
Respondent clearly acted to erode the position of the Union.
Accordingly, by the actions of Harding and Orozco, Respon-
dent engaged in direct dealing with its bargaining unit employ-
ees in violation of Section 8(a)(1) and (5) of the Act. Harris-
Teeter Super Markets, 310 NLRB 216, 217 (1993); Allied Sig-
nal, Inc., 307 NLRB 752, 754 (1992).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By involving itself in the bargaining unit employees’ un-
authorized ratification vote on Respondent’s July 23, 2004
contract proposal, Respondent engaged in direct dealing with
its bargaining unit employees in violation of Section 8(a)(1)
and (5) of the Act.
4. By issuing a warning notice to its employee, Valentin
Hernandez, because he participated in a delegation to the office
of the head of housekeeping, Carmen Perez, which act, it be-
lieved, was authorized by the Union, Respondent engaged in
conduct, violative of Section 8(a)(1) and (3) and Section 8(a)(1)
of the Act.
5. By threatening its employee, Adelina Escobar, with repri-
sals or negative consequences for engaging in activities in sup-
port of the Union, Respondent engaged in acts and conduct
violative of Section 8(a)(1) of the Act.
6. By threatening Hernandez with a disciplinary hearing for
participating in the delegation to Perez, which act, it believed,
was authorized by the Union, Respondent implied that employ-
ees would suffer reprisals if they engaged in activities in sup-
port of the Union in violation of Section 8(a)(1) of the Act.
7. Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in serious unfair la-
bor practices within the meaning of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend that it be ordered to cease and
desist from engaging in said acts and conduct and to take cer-
tain affirmative actions, which I deem necessary to effectuate
the policies and purposes of the Act. In particular, I shall rec-
ommend that Respondent be ordered to rescind the warning
notice, which it gave to its employee, Valentin Hernandez, in
August 2004, and to remove from Hernandez’ personnel file
and its own files any reference to said warning notice. Further,
I shall recommend that Respondent post a notice to its employ-
ees setting forth its obligations in order to effectuate the poli-
cies and purposes of the Act.
[Recommended Order omitted from publication.]