Miramar Sheraton Hotel

National Labor Relations Board - Board Decisions

Dec 13, 2001

336 N.L.R.B. 1203 (N.L.R.B. 2001)

MIRAMAR SHERATON HOTEL 1203
Miramar Hotel Corporation d/b/a Miramar Sheraton
Hotel and Hotel Employees and Restaurant Em-
ployees Union Local 814, AFL–CIO. Cases 31–
CA–22971 and 31–CA–23902
December 13, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On April 6, 2001, Administrative Law Judge Timothy
D. Nelson issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and Charging Party filed cross-exceptions and
supporting briefs. The Charging Party also filed an an-
swering brief.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions except as set forth below, and to
adopt the recommended Order as modified.
1. The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act when it granted retro-
active pay increases to three employees in December
1995,3 and when it granted an additional pay increase to
one of those employees (Alicia Ojeda) on August 21,
1997, in order to reward and encourage antiunion activ-
ity.4 The General Counsel and the Charging Party have
excepted to the judge’s dismissal of additional allega-
tions of unlawful wage increases. We find it unnecessary
to pass on those exceptions, inasmuch as a finding of
additional violations would be cumulative and would not
affect the remedy.5

1 On May 24, 2000, the Charging Party filed a motion to dismiss for
mootness. Attachments to the motion show that the Respondent is no
longer the owner and operator of the hotel where the alleged unfair
labor practices occurred, the successor employer and the Charging
Party have agreed on the terms of a new collective-bargaining agree-
ment, and the three employees alleged to have received unlawful raises
do not work for the successor employer. Thereafter, the Respondent
filed an opposition to the Charging Party’s motion. While not disputing
any of the factual allegations in that motion, the Respondent contended
that the unfair labor practices were not mooted by subsequent events.
By unpublished order dated July 13, 2001, the Board denied the Charg-
ing Party’s motion, noting the Respondent’s opposition and the fact that
the General Counsel neither opposed nor endorsed the motion.
2 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.3d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In adopting the judge’s rejection of the Respondent’s 10(b) statute
of limitations defense as to these increases, we do not rely on his view
about the confidential nature of the Respondent’s personnel records.
We also do not rely on the judge’s discussion of the Regional Direc-
tor’s authority to expand the investigation of objections in a related
representation case proceeding while certain objections issues were
pending before the Board.
4 Chairman Hurtgen finds it unnecessary to decide whether the wage
increase granted to Alicia Ojeda in August 1997 was unlawful, inas-
much as finding this additional violation would be cumulative and
would not affect the remedy.
2. Both the General Counsel and the Charging Party
requested the judge to provide a novel make-whole rem-
edy for the alleged unlawful wage increases. The judge
denied this request but recommended an affirmative re-
cordkeeping remedy as an alternative. The General
Counsel and the Charging Party do not except to the
judge’s failure to recommend the originally requested
remedy. Nor does the Respondent except to the record-
keeping remedy. It is well established, however, that the
Board may exercise its remedial discretion even in the
absence of exceptions. WestPac Electric, 321 NLRB
1322 (1996). In the circumstances of this case, where it
is uncontroverted that the Respondent no longer owns
and operates the hotel involved here, a new collective-
bargaining agreement negotiated by the Union and the
successor employer governs the unit employees’ wages
and benefits, and the three antiunion employees favored
with unlawful wage increases no longer work at the ho-
tel, we find no need for either the originally requested
make-whole remedy or the affirmative recordkeeping
remedy recommended by the judge.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Miramar
Hotel Corporation d/b/a Miramar Sheraton Hotel, Santa
Monica, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Delete paragraph 2(a) from the Order, and reletter
the subsequent paragraphs accordingly.
2. Substitute the attached notice for that (app. B) of the
administrative law judge.

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

5 We therefore do not adopt the judge’s analysis of the Respondent’s
10(b) defense to these allegations.
6 We therefore do not rely on the judge’s analysis of these remedial
issues.
336 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT give pay raises or any other form of
financial inducement to Art Tolentini, Deborah Mackron,
Alicia Ojeda, or any other employee or employees to
reward or encourage their initiating or supporting a
movement to decertify Hotel Employees and Restaurant
Employees Union Local 814, AFL–CIO or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.

MIRAMAR HOTEL CORPORATION d/b/a
MIRA-MAR SHERATON HOTEL

Ann Cronin-Oizumi, Esq., for the General Counsel.
Joseph E. Herman Esq. (Thelen, Reid & Priest, LLP), of Los
Angeles, California, for the Respondent.
Barry S. Jellison and Jonathan E. Davis, Esqs. (Davis, Cowell
& Bowe, LLP), of San Francisco, California, for the Charg-
ing Party.
DECISION
PART ONE: STATEMENT OF THE CASE(S)
I. IN SUMMARY
TIMOTHY D. NELSON, Administrative Law Judge. I
heard the trial of this consolidated unfair labor practice (ULP)
prosecution during 11 days of litigation conducted in Los
Angeles, California, beginning on November 30, 1998, and
ending on June 24, 1999. The prosecution is brought in the
name of the Board’s General Counsel by the Regional Director
for Region 31, against Miramar Hotel Corporation d/b/a
Miramar Sheraton Hotel (the Respondent), the operator of a
hotel in Santa Monica, California, which also houses restau-
rants and other food and beverage facilities. The prosecution
traces from a “Fourth Amended Charge” filed on December 3,
1997, in Case 31–CA–22971, by Hotel Employees and Restau-
rant Employees Union Local 814, AFL–CIO (the Union), the
incumbent representative of more than 200 hourly paid food
and beverage and housekeeping workers at the hotel. All parties
were represented by counsel at the trial, and each party filed
posttrial briefs through counsel, all of which I have studied.1

1 On the Union’s requests, the due date for briefs was twice ex-
tended, ultimately to August 24, 1999. The Union’s and the Respon-
The case has a complex, fragmented, and in some ways
topsy-turvy procedural and litigation history.2 For one thing,
although it started as a ULP prosecution, and has now reverted
to that status, for a good part of the meantime an afterthought
fragment of a decertification election-objections case (RD ob-
jections case) had been uneasily engrafted onto the ULP prose-
cution, even while the balance of the RD objections case had
already been submitted for adjudication to, and was pending
before, the National Labor Relations Board itself, in Washing-
ton, D.C. Other principal features of the procedural background
will be incidentally noted below, and some of those features
will be revisited in later sections.
In a complaint that was significantly expanded in midtrial,
the Regional Director has alleged that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act when it
gave various pay raises (charted below) to three named em-
ployees during the lengthy pendency of a petition for decertifi-
cation election in Case 31–RD–1317, a petition seeking an
election to determine whether a majority of the Respondent’s
bargaining unit employees still wanted to be represented by the
Union. The RD petition was filed on May 26, 1995, by Art
Tolentini, a cashier in a restaurant in the hotel called The Café.
An election was eventually conducted on October 1, 1997, and
the Union lost the ballot count, but only by a fairly narrow
margin.3 The Union filed objections to the election, and a 5-day
hearing on objections was subsequently held in May 1998 be-
fore a hearing officer designated by the Regional Director to
issue a report setting forth his findings and recommendations to
the Board. The Union’s ULP charge concerning pay raises
attacked in this prosecution had by then been under investiga-
tion since early December 1997, but the pay raises were not
among the objections matters which the Regional Director had
ordered to be subjects for evidence taking in the RD objections
hearing.
The Union’s triggering ULP charge, i.e., the “Fourth
Amended Charge” filed on December 3, 1997, stated in mate-
rial part that, “[w]ithin the past six months, the Employer . . .
grant[ed] wage increases to [employees] Deborah Mackron and
Alicia Ojeda to reward and encourage anti-union animus.”
(Like RD petitioner Tolentini, Mackron and Ojeda were cash-
iers in The Café.) On June 5, 1998, after investigating this
charge, the Regional Director issued an original complaint
adopting the charge and expanding its reach. In substance, the

dent’s briefs were thorough, lucidly argued, and helpful, if not always
persuasive.
2 Many features of the unfortunately convoluted history—
particularly those indicating how fraught these proceedings were with
institutional “right-hand/left-hand” problems—are reflected in various
formal papers of record, including but not limited to those dealing with
developments after I opened the trial record, as collected in ALJ Exhs.
1–15.
3 On November 7, 1997, following postelection proceedings held to
resolve challenges, the Regional Director issued a revised tally of bal-
lots indicating that 120 employees had cast valid ballots against con-
tinuing representation by the Union, 108 employees had cast valid
ballots for continuing representation, and 3 persons had cast ballots
under challenges that were not resolved because they could not affect
the outcome.
MIRAMAR SHERATON HOTEL 1205
original complaint alleged that the Respondent violated Section
8(a)(1) of the Act when, beginning on May 1, 1996 (about 19
months prior to the Union’s charge), and on later dates in 1996
and 1997, it gave a series of pay raises to employees Mackron
and Ojeda, allegedly to “reward” them for their role in the
movement to decertify the Union and to “encourage” them to
continue their support for the Union’s ouster.4
As a result of developments detailed elsewhere below, the
original complaint was expanded by amendments tendered and
granted on May 21, 1999, Day Seven of trial proceedings, after
the General Counsel had already rested the Government’s case-
in-chief. Pursuant to these amendments it was now alleged that,
for the same unlawful reasons alleged in the original complaint,
the Respondent had also favored Mackron and Ojeda with pay
raises (and hefty one-time retroactive payments) in December
1995, and likewise had unlawfully given a pay raise and retro-
active pay at that time to RD petitioner Tolentini. The follow-
ing chart captures the undisputed particulars of the wage in-
creases now attacked by the General Counsel as amounting to
unlawful rewards or inducements to the three workers now in
question, with italics used to indicate the pay actions which
were first called into question by the midtrial amendments to
the complaint:

Tolentini
December 1, 1995: 75 cent hourly raise, plus $1282.00 ret-
roactive pay

Mackron
December 1, 1995: 50 cent hourly raise, plus $823.63 ret-
roactive pay;
May 1, 1996: $3.00 hourly raise;
May 1, 1997: 50 cent hourly raise

Ojeda
December 1, 1995: 50 cent hourly raise, plus $896 retroac-
tive pay;
June 5, 1996: $1.00 hourly raise;
August 21, 1996: $1.00 hourly raise;

4 Both the Union and the Respondent have noted on brief that even
though the complaint alleges in a concluding paragraph that the Re-
spondent violated only Sec. 8(a)(1) by giving the pay raises in question,
this prosecution is in fact grounded on a “discrimination” theory of
violation. The Union further emphasizes (Br. p. 33, fn. 14) ) that the
allegedly unlawful pay raises implicate Sec. 8(a)(3)’s proscriptions, as
well, and in any event, that the “raises should be analyzed and scruti-
nized under Sec. 8(a)(1) and Sec. 8(a)(3).” It strikes me as merely an
academic question whether the General Counsel could have or should
have alleged that the pay raises also violated Sec. 8(a)(3). But the Un-
ion and the Respondent are surely correct in their common central point
that this is a case alleging intentional discrimination by the Respondent,
i.e., a case which “turns on employer motivation” within the meaning
of Wright Line. Thus, as I discuss in part two, it is unmistakable that the
General Counsel proceeds on a discriminatory-motive theory, the ex-
pressly stated central premise of which is that the Respondent’s motive
for giving the “excessive” and “unjustified” raises to the named em-
ployees was to “reward” them for their “antiunion activities,” and to
“encourage” them to continue those activities. Indeed, for reasons ex-
plained in part two, I judge that a discriminatory motive theory of this
type is the only theory on which the General Counsel might prevail in
the unique circumstances of the case.
August 21, 1997: 50 cent hourly raise

As previously noted and as I elaborate in part two, the merits
of the complaint pivot on the Respondent’s motivations for
these pay raises, and, therefore, a Wright Line analysis must
govern the disposition of those merits. However, the case pre-
sents at least two other significant issues, which stand apart
from the narrow question whether the Respondent committed
unfair labor practices as alleged in the complaint, and these
deserve immediate mention in this initial summary:
My original 10(b) decision; the Board’s remand: The Re-
spondent’s answer to the original complaint raised statute-of-
limitations defenses under Section 10(b) of the Act (generally
barring any ULP complaint based on a charge filed more than 6
months after the occurrence of the allegedly unlawful act).
Pursuant to agreement of the parties and my direction in a pre-
trial conference call, the first 2 days of trial, on November 30
and December 1, 1998, were devoted to litigation of facts rele-
vant to the 10(b) defense. I then continued the case, received
briefs from the parties on the 10(b) issues, and on December
23, 1998, I issued a Decision and Order dismissing all but one
of the counts in the original complaint as barred by Section
10(b).5 (A copy of my 10(b) decision is in evidence as ALJ
Exh. 3; another copy is attached to this decision as app. A, and
is incorporated by reference herein.6) The General Counsel
promptly took an interim appeal to the Board and filed a brief
in support, and the Union and the Respondent submitted their
own briefs to the Board. On February 12, 1999, the Board is-
sued an order (ALJ Exh. 9), in which it declined to decide ei-
ther the merits of the appeal, or the merits of my original 10(b)
decision. Instead, the Board,

[Remanded] this proceeding to the judge with the instruc-
tion that he conduct the remainder of the hearing, and
thereafter issue a Decision and Order with findings of fact
and recommended conclusions of law on all issues pre-
sented in the case, including the 10(b) issues upon which
he has already ruled.

Accordingly, the ensuing 9 days of litigation (in the weeks of
May 17, and June 21, 1999), and the expansion of the com-
plaint and other developments noted above and below, all oc-
curred against the background of the Board’s February 12 Or-
der and remanding instructions.
Requested “Backpay” Remedy: In both the original com-
plaint and in its trial-amended incarnation, the Regional Direc-
tor gave notice of the General Counsel’s intention to seek an
extraordinary remedy for the alleged violations, one which
supposes that employees “other than” Mackron, Ojeda, and
Tolentini suffered losses for which the Respondent must make
5 Specifically, I dismissed all counts except one calling into question
a 50-cent pay raise given to Ojeda on August 21, 1997, the only alleg-
edly unlawful increase occurring within 6 months prior to the filing of
the Union’s “Fourth Amended Charge.”
6 I adhere to my original 10(b) decision. Necessarily, however, that
decision did not address the additional allegations with respect to De-
cember 1995 pay raises and retropay that were later incorporated into
the complaint. As I discuss in part two, the additional allegations pre-
sent different questions under Sec. 10(b) than those I decided with
respect to the allegations in the original complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1206
them “whole” by paying them “backpay,” with interest. Over
time the General Counsel has offered up three different narra-
tive descriptions of the proposed remedy. One version is found
in the original complaint , another (supplementing the first) in
the trial-amended complaint, and the third in the General Coun-
sel’s brief. Each new version not only differs textually from the
others, but also seems to differ in important substantive ways
from the others. But it’s hard to be sure about this: The problem
is that in each new written expression of the proposed remedy,
the author has resorted to vague and curiously elliptical (even
circular) verbal formulations to convey critically important
ideas, making it nearly impossible to be certain what the Gen-
eral Counsel intends. In fact, it may be naïve to assume in the
first instance that the architects of the proposed remedy even
had a specific intention with respect to certain important issues.
Moreover, none of the several narrative descriptions of the
proposed remedy is susceptible of recapitulation in anything
resembling a formula for computation of the backpay said to be
owed. Nevertheless, the requested remedy has always been
inspired by two basic ideas: (1) The Respondent must “rescind”
(by some wholly uncertain means) most or all of the allegedly
unlawful pay raises identified by the complaint. (Whether
“most’ or “all” raises must be “rescinded” depends on which
version you pick.). (2) The Respondent must “make whole” the
“other bargaining unit employees” by paying backpay to them,
in amounts which (as set forth in the complaint pleadings) must
be “comparable in proportion” to the raises to the favored three.
Moreover, on brief, in what may represent the most significant
substantive shift of position, the General Counsel now seems to
have made the date on which the Respondent obeys the elusive
injunction to “rescind prospectively” the offending pay raises
the critical date for purposes of capping what the General
Counsel asserts is an ongoing backpay liability to the “other
employees.”
II. PROCEDURAL DEVELOPMENTS REVISITED
A. Before and During the Trial
During the preelection pendency of the RD petition, the Un-
ion filed a number of charges against the Respondent, none of
which resulted in the issuance of a complaint. (The earliest of
these, later dismissed, alleged that the Respondent had unlaw-
fully “solicit[ed] . . . employees to file a Decertification Peti-
tion.”7) Eventually, on September 9, 1997, the Regional Direc-
tor issued a Decision and Direction of Election, and, as already
noted, an election was held among the Respondent’s hotel
workers on October 1, 1997, where the Union lost the ballot
count. The Union then filed objections. (The Respondent did,
too, but the Respondent later withdrew its objections.)
On March 11, 1998, the Regional Director issued a supple-
mental decision on objections, order directing hearing, and
notice of hearing, in which he dismissed 14 enumerated objec-
tions filed by the Union and directed an evidentiary hearing on
17 other enumerated objections, none of which involved the
pay raises in question, even though the Union’s ULP charge
alleging unlawful raises had by then been under investigation

7 The Union filed this charge on June 7, 1995, in Case 31–CA–
21327. The Regional Director dismissed this charge on July 27, 1995.
for nearly 6 months. To confuse the issues in this case further,
prior to the Regional Director’s March 11 order in the RD case
directing a hearing on certain objections, the Union had already
withdrawn other of its objections, including one alleging that
the Respondent had (“provided employees with favorable job
applications and promises of increased wages and backpay in
exchange for anti-union support.”8) The objections hearing was
held before a Regional hearing officer during 5 days in May
1998, beginning on May 4 and ending on May 15.
On June 5, 1998, the Regional Director issued the original
complaint and notice of hearing in Case 31–CA–22971, alleg-
ing that in and after May 1996, the Respondent had unlawfully
rewarded employees Mackron and Ojeda with a series of wage
increases. Three weeks later, on June 29, the hearing officer
issued his report and recommendations to the Board in the RD
objections case. There, the hearing officer recommended that
some of the Union’s objections be overruled as lacking in proof
and/or legal merit, but that others be sustained as meritorious,
and, consequently, that the original election be set aside and a
new election be conducted. Thereafter, both the Union and the
Respondent filed various exceptions before the Board to the
hearing officer’s report and recommendations.
On August 26, 1998, by which point the RD objections case
was pending before the Board on the parties’ various excep-
tions, there occurred a further complicating development hav-
ing the effect of fragmenting and attenuating the disposition of
the RD objections case (and also, arguably, of requiring the
litigation of ULP issues raised by the complaint even if they
might otherwise be largely barred from prosecution by Sec.
10(b)). Thus, The Regional Director issued a multipurpose
document, which I will call for shorthand purposes a “consoli-
dation order,” but which actually was captioned “Second Sup-
plemental Decision on Objections, Order Directing Hearing,
Notice of Hearing, and Order Consolidating Cases [31–RD–
1317 and 31–CA–22971].” There, the Regional Director “de-
termined,” sua sponte, to “treat” the Respondent’s “conduct”
(then referring only to wage increases to Mackron and Ojeda in
1996 and 1997 as alleged in the then-pending complaint in
Case 31–CA–22971) as raising “additional” objections issues in
Case 31–RD–1317. And, pursuant to that determination, the
Regional Director ordered that those objections issues were to
be “consolidated” with the pending ULP trial for purposes of
my hearing and disposition. The Regional Director explained
that this action was “required to correct an inadvertent omission
from [his] March 11, 1998, Supplemental Decision,” in which
he had “neglected to consider” the Respondent’s “conduct”
(i.e., the pay raises discovered during his investigation of the
ULP case) as possible “objectionable” conduct to be heard in
the context of the hearing on objections in the RD case. He
further stated that “this [wage-increase] conduct was not spe-
cifically alleged as objectionable conduct by the Union in its
8 See March 11 supplemental decision (GC Exh. 17, p. 3 fn. 2),
where the Regional Director noted the Union’s withdrawal, on Decem-
ber 23, 1997, of, inter alia, its Objection 1(aa) (attachment to GC Exh.
17, p. ii), stating that the Respondent had “provided employees with
favorable job applications and promises of increased wages and back-
pay in exchange for anti-union support.”
MIRAMAR SHERATON HOTEL 1207
timely filed objections[.]”9 And in the light of all this, said the
Regional Director in conclusion, “I have determined to exercise
my authority to treat the alleged [ULP] conduct as such which
may warrant the setting aside of the [RD] election.”
In sum, by the time the Regional Director issued the consoli-
dation order, the Board clearly had primary jurisdiction over
the RD objections case, and probably had exclusive jurisdiction
over that case. And thus, the Regional Director’s determination
to treat the ULP wage increase issues as matters which he still
had authority to order be heard and decided by me as “addi-
tional objections” in the RD case was, at best, a jurisdictionally
dubious exercise,10 and an inevitably problematic one in any
case.11 And for mostly the same reasons, the consolidation or-
der made my own “jurisdiction” over that “additional” frag-
ment of the RD objections case equally dubious and problem-
atic. Indeed, my own nominal jurisdiction over the RD-case
was always more theoretical than real, but the hybridizing of
the litigation before me nevertheless required me in certain
instances to make rulings on relevancy or admissibility or on
various procedural questions which might never have come
up—or on which I might have ruled differently—if the “case”
before me had been exclusively an unfair labor practice prose-
cution.
However, any question of whether the Regional Director had
authority in these particular circumstances to “treat” the ULP
issues in this case as “additional” objectionable conduct in the
RD case is now a moot question, and the same is true of any
related question of whether, or to what extent, I was for a time
invested with a kind of “parallel” (or “second-tier”) jurisdiction
over an after-included fragment of the RD objections case. The
current mootness of these questions is traceable to the General
Counsel’s more recent motion (supported by all parties) to
“sever and remand” to the Regional Director the fragment of
Case 31–RD–1317 nominally pending before me, so that the

9 However, as I have noted previously, the Regional Director, in his
March 11, 1998 supplemental decision in the objections case, had then
stated that the Union had previously withdrawn certain objections,
including an objection raising seemingly closely related pay-raise
claims, i.e., that the Respondent had “provided employees with favor-
able job evaluations and promises of increased wages and backpay in
exchange for anti-union support.”
10 The Regional Director did not purport to act pursuant to any au-
thority expressly conferred by the Board’s Rules and Regulations,
which do not clearly confer on a Regional Director any “independent”
or “continuing” jurisdiction or authority over an RD objections matter
currently pending directly before the Board. Rather, the Regional Di-
rector relied on the Board’s more generalized descriptions of a regional
director’s (and an administrative law judge’s) authority with respect to
non-alleged objections matters, as set forth in White Plains Lincoln
Mercury, Inc., 288 NLRB 1133 (1988).
11 Among other things, the consolidation order, if properly issued in
the first instance, necessarily had the effect of delaying the Board’s
disposition of the pending RD-objections case by fragmenting that case
into a “two-track” case, with the largest part of the objections case to
remain pending before the Board (in limbo, presumably), while leaving
the new fragment—the wage increase matters—to somehow work its
separate way to the Board some day as a result of a separate ULP hear-
ing before me, following which, according to the Regional Director’s
consolidation order, I was to issue my own recommendations to the
Board regarding the “additional objections” matters.
Regional Director could conduct a second election in that case.
I granted this motion by order dated April 21, 2000. The back-
ground leading to this latter development is further discussed in
subsection B, infra.
As already noted: As a consequence of the Board’s February
12, 1998 Order and remanding instructions, the ensuing litiga-
tion addressed the merits of the same counts I had dismissed on
10(b) grounds. Not only that, but the litigation became signifi-
cantly expanded when, on May 21, 1999, the General Counsel
moved to amend the complaint. As previously noted, these
amendments reached further back in time, now alleging that the
Respondent had also unlawfully favored Mackron and Ojeda
with pay raises and retroactive pay in December 1995. These
amendments further alleged, pursuant to a new charge filed by
the Union on the previous day (in Case 31–CA–23902), that the
Respondent had also unlawfully favored Tolentini with a pay
boost and retroactive pay in December 1995. After extensive
argument, I granted the General Counsel’s motion to amend
(without prejudice to the Respondent’s 10(b) defenses), and
further trial proceedings were then scheduled to resume on
Monday, June 21, 1999, to give the Respondent the time neces-
sary to investigate and prepare a defense to these new allega-
tions.
The May 21, 1999 amendments were themselves prompted
by the Union’s and the General Counsel’s belated discovery of
certain additional facts relating to “merit” raises given to Mack-
ron, Ojeda, and Tolentini in December 1995. Specifically, as
further discussed in part two, the Union had been on notice
since February 21, 1996 (and admittedly was aware), that these
three employees (and a number of others) had received such
merit raises sometime between November 1, 1995, and Febru-
ary 21, 1996 (50 cents each for Mackron and Ojeda; 75 cents
sfor Tolentini).12 However, this information alone had not
caused the Union to suspect that the three employees had been
favored with unusually large increases. Rather, what triggered
such a suspicion was the Union’s eventual discovery in latter
May 1999 that the Respondent had given a rather lengthy “ret-
roactive” effect to the December 1995 merit raises to the three
employees, such that Tolentini had received a one-time check
for retroactive pay of $1282, Mackron had gotten a check for
$823, and Ojeda had gotten a check for $896. The retropay
revelations themselves occurred as a result of the Union’s and
the General Counsel’s reviews of certain “ER-21” payroll
forms for the three employees, which forms the Respondent
12 As is detailed in my original 10(b) decision (app. A, sec. I): On
September 21, 1995, the Union requested the Respondent to furnish,
inter alia, the “present wage rate” of all bargaining unit employees (Jt.
Exh. 1), and on November 1, 1995, the Respondent furnished that data
(Jt. Exh. 2). Then, on January 9, 1996, the Union made a second re-
quest for “a list of the current wage rates” of all bargaining unit em-
ployees (Jt. Exh. 3), and, on February14, 1996, the Respondent mailed
an updated listing (R. Exh. 3) to the Union. A comparison of Jt. Exh. 2
and R. Exh. 3 showed that, sometime between November 1, 1995, and
February 21, 1996, Mackron’s and Ojeda’s hourly pay had increased by
50 cents and Tolentini’s hourly pay had increased by 75 cents. The
same comparison process showed that other employees, including other
cashiers and a number of cooks, had likewise received merit raises
during the same period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1208
had originally disclosed to those parties on March 26, 1999, in
response to the General Counsel’s and the Union’s discovery-
at-trial subpoenas. And the March 26 disclosures had them-
selves occurred pursuant to a preresumption discovery process
which I had previously directed to occur by order dated Febru-
ary 17, 1999 (see ALJ Exh.10; see also ALJ Exhs. 11–13), all
in the (vain) hope that suchpre-resumption disclosures would
permit the trial to be resumed and concluded in the same week,
as each party had confidently predicted it would be.13
B. Further Board Action on Case 31–RD–1317 and Sequellae
On May 20, 1999, the Board issued a Decision, Order, and
Direction of Second Election in Case 31–RD–1317. (A copy is
in evidence as ALJ Exh. 14 (A).). The Board issued this deci-
sion while trial proceedings in this case were underway in the
week of May 17–21, but counsel for the parties and I did not
learn of it until after the May 21 adjournment of proceedings.
As is implied by the caption, the Board there set aside the
original decertification election based on certain objectionable
conduct as found by the hearing officer, and directed a new
election. The Board “further ordered” in this regard that “this
proceeding [i.e., Case 31–RD–1317] is remanded to the Re-
gional Director for Region 31 for action consistent with this
Decision, Order, and Direction of Second Election.”
The Board’s May 20 decision in the RD case indicates that it
was issued in response to a series of moving and responsive
papers filed with the Board by the Respondent and the Union
over the course of the previous 5 months, all having to do pri-
marily with issues surrounding the hearing officer’s report and
recommendations on objections in Case 31–RD–1317. (The
underlying papers to the Board were separately received in
evidence in this proceeding as ALJ Exhs. 6(A) through (G) and
7(A) and (B).) The Board’s decision, augmented by the refer-
enced exhibits in this case, show as follows: On December 31,
1997 (before I resumed the merits trial and before the Board
had issued its February 12, 1999 Order, above, remanding the
case to me for further proceedings, and findings and conclu-
sions on the merits), the Respondent submitted a letter to the
Board (ALJ Exh. 6(A)) stating in material part: “[T]he Em-
ployer hereby respectfully withdraws its Exceptions and Brief
in Support of Exceptions to the Hearing Officer’s Report and
Recommendations, and urges that a second election be directed
in accordance with the Hearing Officer’s recommendation.” In
its May 20 decision, the Board treated the Respondent’s letter
as a motion to withdraw its exceptions, and granted the motion.
The Board took note that the Union opposed the Respondent’s
motion to withdraw exceptions, and that the Union had (1) filed
its own request for review of the Regional Director’s supple-
mental decision on objections, and (2) filed a motion to submit
newly discovered evidence. (The latter motion then referred
particularly to the recently-discovered “retropay” evidence
appearing on ER-21’s associated with Mackron’s, Ojeda’s, and
Tolentini’s December 1995 merit raises, i.e., the evidence
which eventually led to the General Counsel’s May 21 motion

13 Before the trial began, the Regional Office had estimated a “2–3
day” trial, and the Union and the Respondent had agreed with this
original estimate.
to amend the complaint, above.) The Board denied the Union’s
request for review as “moot” in the light of its decision to order
a new election based on other objectionable conduct found by
the hearing officer. The Board also rejected as “untimely” the
Union’s proffer of the “newly-discovered evidence” in support
of an argument that the RD petition should be “dismissed alto-
gether.”
The Board’s May 20 Decision, Order, and Direction of Sec-
ond Election was known to the parties and me when the con-
cluding phase of the litigation occurred in the week of June 21–
24, 1999. (Not then known, of course, was the Board’s subse-
quent, July 21 Order Denying Motion and Clarifying Decision
in Case 31–RD–1317, below.) In the light of the Board’s May
20 Order Directing a New Eection, I directed the parties at the
close of the hearing on June 24, 1999, to show cause in writing
on or before the due date for briefs why Case 31–RD–1317
(i.e., the objections fragment nominally before me) should not
be severed and remanded to the Regional Director for Region
31. As previously noted, the due date for briefs was twice ex-
tended on the Union’s motions, ultimately to August 24, 1999.
On July 21, 1999 (before the parties had responded to my
show-cause direction), the Board issued an unpublished Order
Denying Motion and Clarifying Decision in Case 31–RD–1317.
There, the Board responded to the Union’s May 28, 1999 Mo-
tion for Reconsideration of a Portion of the Board’s Decision,
specifically to the Union’s “request that the Board delete from
its [May 20] decision the last sentence in footnote 6, which
states “To the extent that the Union is now (in its response to
the Employer’s motion to withdraw exceptions) urging consid-
eration of that proffered [‘newly-discovered’] evidence as
grounds for dismissing the [decertification] petition altogether,
the request is untimely.” Although the Board denied the Un-
ion’s motion for reconsideration (and the Union’s request for
deletion of the quoted sentence), the Board took note of the
Union’s representation in its motion that, in the “consolidated”
proceeding before me, “it was attacking the validity of the de-
certification petition[,)” and that the Union was, therefore,
“concerned that the statement in footnote 6 of the Board’s May
20 decision may be interpreted as resolving the validity of the
petition.”
Here, I think it’s worth pausing to observe that the Union’s
representation to the Board that, in the proceeding before me, it
was “attacking the validity of the decertification petition,” was,
at best, a misleadingly incomplete statement, particularly inso-
far as it implied, contrary to fact, that the “issue” of the validity
of the decertification petition was in any sense an “issue” that
was properly before me for consideration. Thus, it is true that
the Union, in a letter to me dated January 4, 1999 (ALJ Exh.
6(D)), argued for the first time that “the [allegedly unlawful]
pay increases to Mackron and Ojeda to reward them for their
circulation of the RD petition” was not only “an unfair labor
practice and objectionable conduct[,] but “[m]ore importantly,
that type of conduct renders the election proceeding a nullity
and requires dismissal of the RD petition.” (This letter was
materially identical in its text to the Union’s letter to the Board
of the same date [ALJ Exh. 6(C)], making identical arguments
in the context of opposing the Respondent’s request to with-
draw its exceptions to the hearing officer’s report on objections
MIRAMAR SHERATON HOTEL 1209
and recommendations for a new election.) In fact, however, the
Union’s contention that the RD petition must be dismissed,
raised for the first time in its letter of January 4, 1999, clearly
exceeded the scope of any issues raised by the unfair labor
practice complaint (even as later amended on May 21, 1999),
because the complaint had never alleged the existence of any
prepetition misconduct by the Respondent, only unlawful wage
increases occurring during the protracted pendency of the RD
petition. Neither did it expand the scope of the issues in the
“case” before me that the Regional Director had belatedly or-
dered a “consolidation” of the issues raised by the complaint
for purposes of considering the wage increases as objectionable
conduct in Case 31–RD–1317. This is because, whatever else
may have been uncertain about the Regional Director’s post-
complaint consolidation order, it was unmistakably clear from
the text of that order that the “objections” issues contemplated
by the consolidation order were themselves defined by, and,
indeed, were identical to, the issues raised by the complaint.14
(In fact, counsel for the General Counsel reaffirmed this during
various trial colloquies of record.)
Necessarily, therefore, despite the Union’s various efforts to
shoehorn the petition-dismissal “issue” into either the Board’s
disposition of the RD objections case (an effort which the
Board rejected as untimely), or my own disposition of the hy-
brid matters before me, it was never before me to judge
whether the RD petition itself should be dismissed. At best, the
Union’s representation to the Board that it was “attacking the
validity of the decertification petition” in the proceeding before
me was a reflection only of the Union’s most wishful thinking
about one of the “issues” it hoped I might decide in the context
of a prosecution which did not, in fact, raise any such issue.15
As a separate point, I note that in arguing that the Respon-
dent was guilty of unlawful prepetition behavior warranting
dismissal of the RD petition, the Union appears to rely on tes-
timony given before me by former Supervisor Ulysses Black in
the June 21, 1998 trial session, where he purported to describe
in quite summary terms a conversation or conversations with
employee Mackron. As I ruled at the time, Black’s testimony
that Mackron made certain assertions during the supposed con-
versations was inadmissible hearsay if offered to prove the truth

14 Thus, the Regional Director stated in his consolidation order (em-
phasis added): “In the Complaint and Notice of Hearing which issued
in related Case 31–CA–22971, this additional conduct is alleged as
unfair labor practices in paragraphs 8. (b) and (c), and 9. (b), (c), and
(d) therein. The conduct consists of the grant of wage increases to two
unit employees. Inasmuch as these additional investigative disclosures
raise substantial and material factual and legal issues, and are closely
related to and involve the same evidence as certain allegations set forth
in the aforementioned Complaint and Notice of Hearing, I find that the
issues raised by these other investigative disclosures can best be re-
solved by a hearing together with the issues raised in the aforemen-
tioned Complaint and Notice of Hearing.”
15 Moreover, the Union’s assertions to the Board suggesting other-
wise (see ALJ Exh. 14 (B), especially the Union’s May 28, 1999 “Mo-
tion for Reconsideration of a Portion of the Board’s [May 20, 1999]
Decision”) were not just misleading in their characterizations of matters
then pending before me, but they further served to exacerbate the
chronic, right-hand/left-hand problems associated with the unfortunate
fragmentation of the RD objections case into two different proceedings.
of Mackron’s out-of-court assertions, and therefore could not
be received as having any tendency to prove that the Respon-
dent was guilty of unlawful prepetition behavior. I further find
that Black’s summary descriptions of the supposed conversa-
tion (or conversations) with Mackron were themselves not de-
serving of any credence.16
In response to my end-of-trial direction to show cause in
writing why the RD objections fragment before me should not
be severed and remanded to the Regional Director, only the
Respondent filed papers supporting severance and remand. The
Union filed papers in opposition, arguing centrally that the
Board’s May 20 decision, etc., did not moot certain “issues”
supposedly raised in the RD-objections fragment case nomi-
nally still pending before me. (The Union was apparently refer-
ring in particular to the supposed “issue” whether the RD peti-
tion should be “dismissed altogether.”) The General Counsel’s
response to the show-cause direction was murkily set forth in a
one-sentence footnote to the prosecution brief. Id. at p. 3 fn. 2.
While the reasoning involved was uncertain, it was at least
clear from the footnote that the “General Counsel [had] con-
clud[ed] that Cases 31–RD–1317 and Cases 31–CA–22971 and
31–CA–23902 should not be severed.”
However, the Union and the General Counsel have more re-
cently changed their minds: On April 3, 2000, the General
Counsel (echoed by the Union in supporting papers) moved that
I now sever Case 31–RD–1317 (i.e., the objections fragment
nominally before me) from the outstanding ULP cases, and that
I remand the RD case (fragment) to the Regional Director. Spe-
cifically, the General Counsel’s motion recited that the Union,
on March 21, 2000, had filed a “Request to Proceed” in the RD
case, and that the severance and remand was now necessary “so
the Regional Director for Region 31 . . . may conduct a repre-
sentation election, if appropriate, in Case 31–RD–1317.”17 I
16 As further noted in part two, Black had been Mackron’s immedi-
ate supervisor until he was fired by the Respondent in February 1998,
and he had maintained a social and dating relationship with her off the
job before he was fired. Subpoenaed by the Union is this proceeding, he
initially testified in summary terms that he had one or more prepetition
conversations with Mackron wherein she supposedly told him, in sub-
stance, that she had been in touch with one or more company officials
who had coached her about how to get a decertification movement
started. Upon the Respondent’s objection, I ruled that this testimony
was inadmissible hearsay, especially considering that the General
Counsel had never alleged nor argued that Mackron was a company
“agent,” or that she otherwise occupied any status that might allow her
(supposed) out-of-court assertions to Black to be treated as nonhearsay
“admissions” of a party-opponent. In any case, as further discussed in
part two, I found Black to be a decidedly unimpressive witness in many
(but not all) respects. And as to this particular issue, I would not credit
any part of his (fragmented, shifting, and recklessly-delivered) account
which might suggest that Mackron told him (no matter when) that she
had schemed with company officials prior to the filing of the RD peti-
tion.
17 There can be no doubt that the Board, by its May 20 Decision, Or-
der, and Direction of Second Election, had already determined not only
that it was “appropriate” to conduct a second election, but had, indeed,
“directed” that the second election be held, and had remanded that case
to the Regional Director to do just that. Accordingly, I have no idea
what counsel for the General Counsel may have intended by including
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1210
granted this unopposed motion by Order dated April 21, 2000,
specifically ordering that “Case 31–RD–1317 is remanded to
the Regional Director for Region 31 for all further processing
and disposition.” Accordingly, by this ultimate severance and
remand, if not as a necessary consequence alone of the Board’s
May 20, 1999 Decision, Order and Direction of Second Elec-
tion and its own remand to the Regional Director, any out-
standing issues in Case 31–RD–1317, are no longer before me,
if, indeed, any such issues were ever properly or genuinely
“before” me in the first place.
III. REMAINING SCOPE OF THIS DECISION; SUMMARY
OF MY DISPOSITION OF 10(b) ISSUES
In compliance with the Board’s Order and remanding in-
structions of February 12, 1999, above, I permitted full merits
litigation of all matters put into issue by the original complaint
and the amended consolidated complaint and the Respondent’s
answers thereto. I am further instructed by the Board’s remand
to “issue a Decision and Order with findings of fact and rec-
ommended conclusions of law on all issues presented in the
case, including the 10(b) issues upon which [I have] already
ruled.” Based on post-February 12, 1999 developments already
noted with respect to the severance and remand of the RD case
to the Regional Director, I have construed the Board’s February
12 remanding instructions to me as moot and no longer opera-
tive insofar as they may have contemplated that I make recom-
mendations to the Board with respect to the disposition of any
“objections” issues in the RD case. However, I construe as still
fully operative the Board’s remanding instructions clearly con-
templating that my Decision and Order should include a full
decision on the merits of the unfair labor practice allegations in
this case, and without regard to any judgments I have already
made as to the 10(b) timeliness of any of those unfair labor
practice allegations. Accordingly, my merits findings, analyses,
and recommended Order will occupy most of the balance of
this decision.
This litigation has not changed my appreciation or disposi-
tion of the 10(b) issues I decided in my original 10(b) decision.
Specifically, based on the findings and reasons set forth in that
decision, I will adhere to my judgment that the allegedly unlaw-
ful raises given to Mackron in May 1996 and May 1997, and
the allegedly unlawful raises given to Ojeda in June and August
1996 were barred from prosecution by Section 10(b). Thus, the
Union’s charge which called those particular wage increases
into question (its “Fourth Amended Charge” in Case 31–CA–
22971, dated December 3, 1997), was untimely, and so, too,
was the complaint barred by Section 10(b) insofar as it attacked
those particular wage increases. (Nevertheless, the complaint’s
attack on Ojeda’s 50-cent raise on August 21, 1997, was clearly
timely, and was never the subject of the Respondent’s 10(b)
defense in any case.)
However, I will reach a different 10(b) judgment with re-
spect to the most remote of the now-alleged violations, specifi-
cally the hefty “retroactive” payments given to Mackron,
Ojeda, and Tolentini in December 1995 (i.e., those only belat-

the phrase, if appropriate, in the above-quoted portion of her motion
for severance and remand.
edly discovered by the Union and the General Counsel in latter
May, 1999, pursuant to the Respondent’s March 26, 1999, dis-
closures in response to the prosecuting parties’ trial subpoenas).
As I explain further in my concluding analyses, I will judge that
those large retropayments were themselves so artfully and mis-
leadingly concealed (moreover, in an ER-21 form not normally
made available to the Union in response to requests for the
current hourly pay of bargaining unit employees) that the fact
of the retropayments was not discoverable earlier by exercise of
reasonable diligence on the Union’s part. Accordingly, I will
judge that the 10(b) clock on the December 1995 retropayments
did not begin to run until March 26, 1999, when the ER-21’s
revealing those payments were first made available to the Un-
ion (and to the General Counsel). And this means, in turn, how-
ever ironically, that the May 21, 1999, amendments to the com-
plaint calling those December 1995 retropayments into question
were not barred by Section 10(b), even though Section 10(b)
barred allegations as to all other complaint-identified pay raises
granted later (except for the 50-cent raise to Ojeda on August
21, 1997).
PART TWO: MERITS FINDINGS AND CONCLUSIONS
(IGNORING 10(B) QUESTIONS)
I. INTRODUCTORY DISCUSSIONS
For reorientation purposes, I reiterate that the amended com-
plaint alleges in substance that the Respondent violated Section
8(a)(1) when, on the following dates, it gave the following pay
raises to Art Tolentini, Deborah Mackron, and Alicia Ojeda:

Tolentini
December 1, 1995: 75 cent hourly raise, plus $1,282.80
retroactive pay

Mackron
December 1, 1995: 50 cent hourly raise, plus $823.63 ret-
roactive pay;
May 1, 1996: $3.00 hourly raise;
May 1, 1997: 50 cent hourly raise

Ojeda
December 1, 1995: 50 cent hourly raise, plus $896 retroac-
tive pay;
June 5, 1996: $1.00 hourly raise;
August 21, 1996: $1.00 hourly raise;
August 21, 1997: 50 cent hourly raise

Later sections of this part contain my findings of fact and
conclusions of law concerning the merits of the allegations in
the complaint as amended during the trial. I enter them in ac-
cordance with the Board’s remanding instructions even though
I have separately judged that all but one of the pay-raise counts
in the original complaint are barred from prosecution by Sec-
tion 10(b) of the Act, the governing statute of limitations. Later
sections also contain my findings and conclusions with respect
to 10(b) issues which I did not address in my original 10(b)
decision, i.e., the impact of Section 10(b) on the December
1995 pay-raise allegations that were first introduced into the
case by the midtrial amendments.
I will use section II, next, to establish an analytical frame-
work for my subsequent findings and discussions, focussing
MIRAMAR SHERATON HOTEL 1211
primarily on why and how I think the teachings of Wright Line
apply to the case. However, in section II, I will also address and
dispose of other potential theories or arguments, which the
General Counsel has uncertainly introduced into the case.
II. FRAMEWORK FOR ANALYSIS
A. Principal Contentions of the Parties; Presumptive Applica-
bility of Wright Line
The issues in the case cannot properly be understood without
first identifying the legal theory which animates this prosecu-
tion. Although the theory of violation is expressed somewhat
indistinctly or equivocally in both the complaint and in the
General Counsel’s posttrial brief, it remains largely obvious
that the critical operating premise of the prosecution is that
unlawfully discriminatory motives influenced the Respondent’s
decisions to give these particular raises to these particular em-
ployees. Thus, as I detail below, the General Counsel unmis-
takably alleged in the complaint, sought to prove at trial, and
argued vigorously on brief that the Respondent, wanting to be
rid of the Union, and knowing or believing that Tolentini,
Mackron, and Ojeda were key figures in the movement to oust
the Union, intended the raises to function both as “rewards” for
their prior efforts to that end and as inducements to “encour-
age” them to continue their efforts. The Union has consistently
argued a virtually identical motive theory.18 And the Respon-
dent, likewise seeing its motivations for these raises as the piv-
otal issue in the case, has denied any unlawful purpose, and has
sought to prove instead that each of the raises attacked by the
complaint was based on “merit” and related factors, including
the wish to retain good help and combat “turnover” among its
cashiers.
The language of the complaint alone makes it clear that the
General Counsel attacks the various raises to the three employ-
ees because they were given for unlawful, union-hostile rea-
sons, and quite particular reasons at that. Thus, paragraph 10 of
the amended complaint alleges (consistent with its counterpart
in the original complaint) that the Respondent’s motive in
granting all of the pay raises identified in previous paragraphs
was “to encourage Mackron’s, Ojeda’s and Tolentini’s anti-
union efforts[.]”19 Moreover, in her posttrial brief, counsel for

18 See U. Br. at 3: “The December 1995 retroactive raises to Tolen-
tini, Mackron, and Ojeda were rewards for their activity in the decerti-
fication effort, as were the huge wage increases given to Mackron and
Ojeda in the summer of 1996. They were given as part of Respondent’s
unlawful campaign to free itself from having to deal with an increas-
ingly militant union.” See also id. at 741–742: “The raises were de-
signed to get them [Mackron, Ojeda and Tolentini] to continue their
activity to decertify the Union.”
19 I recognize that par. 10 goes on to state that the Respondent also
gave the raises to the favored three “in order to discourage other em-
ployees from supporting the Union and/or engaging in union or other
concerted activities for the purpose of collective bargaining, mutual aid,
or protection.” However, in the context of this particular prosecution, I
regard this extra verbiage as essentially idle. And the best reason for
thus disregarding the added verbiage (clearly asserting that an addi-
tional motive for giving the identified pay raises to the three named
employees was to “discourage” prounion activities by “other employ-
ees”) is that this assertion is impossible to square with what the General
Counsel has repeatedly (and reasonably) insisted elsewhere—in sub-
the General Counsel hammers consistently on the same “re-
ward-and-encourage” theme by variously referring to the pay
raises as acts of “discriminatory favoritism” towards the three
employees because of their efforts to decertify the Union (p.
10), or as “reward[s]” to them “to ensure that [their “anti-
union”] activities continued” (pp.14, 15, 17, 20). Indeed, in
what is perhaps the most explicit and systematic statement of
the Government’s theory of violation, the General Counsel
characterizes each of the pay hikes in question as a “bonus or
premium paid on the basis of a factor other than sound, legiti-
mate business considerations, i.e., Respondent’s unlawful anti-
union motivation and, specifically, its strong desire to assist the
decertification effort.” Id. at 18. Finally, that the amount of the
“bonus or premium” in each case is a key component of the
theory of prosecution is underscored by the rhetoric consis-
tently employed on brief by counsel for the General Counsel,
who characterizes all of the raises in question—as
“disproportionately large” (pp. 5, 6), “excessive” (p. 10),
“huge” (pp. 11, 16), “blatant[ly] excessive” (p. 17),
“exceptionally large” (p. 20), and, not least, “unjustified” (p.
20). The Respondent’s motives for the pay raises were not just
put into issue by the complaint but those motives were the
common focus of each party’s litigation efforts. In the circum-
stances, the case would clearly seem to invite the analysis pre-
scribed in Wright Line,20 where the Board announced a “causa-
tion test” and a burden-shifting scheme to be “employ[ed] . . .
in all cases alleging violations of Section 8(a)(3) or violations
of Section 8(a)(1) turning on employer motivation[.]”21 Strik-
ingly, though, the General Counsel has never expressly ac-
knowledged Wright Line’s applicability to the case. (Nor has
the Union. In fact, only the Respondent has.) Rather, such an
acknowledgment is only implicit in the language of the com-
plaint and in the arguments and rhetoric, which dominate both
the General Counsel’s and the Union’s posttrial briefs. Never-
theless, I regard it as not just largely obvious that the prosecutor
envisioned and litigated this as a “case turning on employer
motivation,” but I will judge ultimately that no matter what the
General Counsel may have intended, the merits of the case can
only be decided by reference to the Respondent’s motives for
the pay raises. Therefore, the case in my view not only invites a

stance, that the pay raises in question were intended by the Company to
be kept secret from the “other employees,” who, in fact, did not know,
and could not have known that Mackron, Ojeda, and Tolentini had been
favored with the raises in question Thus, in support of arguments that
none of the complaint allegations are time-barred, the General Counsel
has repeatedly asserted (correctly, as I read the record) that “[t]here is
no evidence that any of [the “other”] unit employees either knew or
reasonably could have known about the pay increases granted [to]
Mackron, Ojeda, and Tolentini.” GC Br., p. 6. See also the General
Counsel’s (undated) December 1998 briefs to me and (later) to the
Board (respectively, ALJ Exh. 1(A), p. 4, and ALJ Exh. 4(A), p. 6)
associated exclusively with the 10(b) issue, where the same point is
stressed in virtually identical terms.
20 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See also NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983), affg. Wright Line tests.
21 251 NLRB at 1089. See, e.g., Chicago Tribune Co., 300 NLRB
1055 fn. 3 (1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1212
Wright Line analysis but requires one, with due regard for its
allocation of burdens.
B. Possible Additional Prosecution Theories
As previously stated the Respondent is the only party who
has expressly acknowledged that its motives are the pivotal
element in the case, and, therefore, that a Wright Line analysis
is required. Moreover, there is a studied quality to the General
Counsel’s silence on the point, seemingly implying a wish to
leave wiggle room for arguing quite different theories, includ-
ing even (perhaps) a theory according to which the Respon-
dent’s motives might be irrelevant to the inquiry. Because the
General Counsel has been sufficiently blurry and equivocal on
these points to leave room for doubt, I deem it necessary, how-
ever distracting, to pursue here the possible significance of cer-
tain assertions, chiefly those made summarily and inconclusively
in the General Counsel’s post-trial brief, which may—or may
not—have been intended to introduce a different theory from the
unlawful motivation theory made explicit throughout this prose-
cution. As I explain below, I would find no merit to any such
extra theory in the circumstances of this case; indeed, I judge that
this prosecution would necessarily fail unless the General Coun-
sel could establish by a preponderance of the credible evidence
that unlawfully discriminatory considerations were “motivating
factors” in the pay raises in question.
To start with, I note that the General Counsel, in the context of
arguing on brief that none of the counts in the complaint are
barred under Section 10(b), has glibly asserted in passing that
there exists a class of “bargaining unit employees other than To-
lentini, Mackron, and Ojeda . . . who were denied pay raises be-
cause they did not oppose the Union and support Respondent.”22
But the General Counsel does not trouble to identify any record
support for this assertion, and I find no such support in any case.
Even more important, the assertion of this claim for the first time
on brief is offensive to fundamental standards of fairness and due
process. The complaint never alleged that the Respondent dis-
criminatorily “denied” pay raises to “other” unit employees,
much less did it identify any alleged victims of any such sup-
posed discrimination, still less the timing or other particulars of
any such “denials.” Rather, the complaint only alleged, in sub-
stance, that the Respondent unlawfully favored the three named
employees by giving them raises in the amounts alleged in the
complaint—amounts, moreover which the General Counsel con-
sistently characterizes by such terms as “blatantly excessive,”
“disproportionately large,” and “unjustified.”23 And because the
Respondent was not given any notice in the complaint that it was

22 GC Br. 6; emphasis added. See also id. at p. 23 fn. 22, and p. 24
fn. 23, where, in the context of attempting to explain the terms of a
proposed order for an extraordinary “backpay” remedy, the General
Counsel makes similar assertions in similarly vague and conclusionary
terms.
23 Nor is a claim that other employees were unlawfully denied pay
increases implicit in, or merely the obverse of, the allegations which
were set forth in the complaint. This is a point which may be largely
evident simply from the General Counsel’s insistence that the raises
given to the three “favored” workers were “disproportionately large,”
“blatantly excessive,” and “unjustified.” In any case it is a point to
which I will return in my discussion of the appropriate remedy.
being charged with having unlawfully “denied” pay increases to
“other” employees, the Respondent cannot be said to have con-
sciously litigated any such claim, much less could it be said that
such a claim was either “fully” or fairly” litigated. Indeed, I find
that any such phantom claim was not litigated in any manner
whatsoever.
I also recognize that the General Counsel has introduced in
conclusionary terms the notion that the wage increases were “in-
herently destructive” of employee rights, which perhaps might
imply an alternative, per se, theory of violation, according to
which it need not be proved that union-hostile considerations
were a “motivating factor” in the Respondent’s decisions to con-
fer the particular wage increases in question.24 Thus, in a phrase
tucked into complaint paragraphs which otherwise simply iden-
tify the date and the amount of each pay raise in issue, it is al-
leged that the raises “constitut[ed] a preference in terms and con-
ditions of employment and [were] inherently destructive of the
rights guaranteed all employees by Section 7 of the Act.” The
same assertion is also made in a single sentence at the conclusion
of the General Counsel’s arguments on brief, as follows: “More-
over, as Respondent distinguished among employees based upon
their participation in antiunion activities when it conferred its
disproportionate wage increases on Mackron, Ojeda, and Tolen-
tini, Respondent’s conduct was inherently destructive of the Sec-
tion 7 rights of unit employees, as alleged.” (GC Br. at 20; em-
phasis added.)
It is not at all clear what the General Counsel had in mind in
asserting that the wage-increases in question were “inherently
destructive” of employee rights.25 In fact, the point is not other-
wise pursued or rationalized in the General Counsel’s arguments,
and nowhere does the General Counsel affirmatively state that
the Respondent’s motives for the wage increases given to Tolen-
tini, Mackron, and Ojeda were irrelevant. On the contrary, the
assertion that the Respondent’s “conduct” was “inherently de-
structive” is made in the same breath with characterizations of the
same conduct as “constitut[ing] a preference [accorded to the
three employees] in terms and conditions of employment” (the
complaint) or as a “distin[ction] . . . based upon their participa-
tion in antiunion activities) (GC Brief). Thus, considered in con-
text, the inherently destructive language seemingly amounts to
surplusage from a theoretical standpoint, merely a reiteration in
different terms of the General Counsel’s overriding contention
that the Respondent, influenced by unlawful motives, con-
sciously discriminated in favor of Tolentini, Mackron, and
Ojeda when it gave them the “blatantly excessive” and “unjusti-
fied” pay raises in question. Accordingly, while I remain in
doubt about the General Counsel’s reasons for summarily in-
corporating the words inherently destructive into the prosecu-
24 The doctrine in question traces principally from the Supreme
Court’s decision in NLRB v. Great Dane Trailers, 388 U.S. 26, 33–34
(1967), and cases cited.
25 Perhaps the best clue as to what the General Counsel may have in-
tended in this regard is contained in a colloquy at trial concerning these
same questions (Tr. vol. IV, 386–388), where counsel for the General
Counsel seemed to be saying in the end that the expression inherently
destructive as used in the complaint was only intended to convey the
idea that, “in the circumstances of this case,” the alleged violations
were “extreme” or especially “serious” violations.
MIRAMAR SHERATON HOTEL 1213
tion, I am persuaded that the invocation of such magic words
was not intended to suggest an alternative theory according to
which employer motivation was irrelevant.
Regardless of the General Counsel’s intentions, however, I
judge that the pay raises to Tolentini, Mackron, and Ojeda
could not be understood as “inherently destructive” of employ-
ees’ statutory rights in the absence of proof of an unlawfully
discriminatory motivation for conferring them. And here I re-
emphasize that not only does the General Counsel fail to ex-
plain, much less defend, the use of the expression in question,
but the record fails to show that any employees other than
Mackron, Ojeda, and Tolentini were even aware of the in-
creases given to the three allegedly favored workers. Rather, as
I have noted previously, the General Counsel has insisted (cor-
rectly, so far as this record shows) that the other workers were
not aware of those increases and could not have been so aware.
Even more important, as I detail below in section III, everyone
agrees that when the Respondent gave the various raises at-
tacked by the complaint, the Respondent and the Union were
operating within the term of a binding, 5-year labor agreement
which expressly ceded to the Respondent the right, “at its sole
discretion,” to give “merit” raises to individual employees over
and above the “minimum scales” called-for in the union con-
tract. Moreover, as I also detail in section III, this was a con-
tract, which the Union had embraced and had “finalized” with
the Respondent with full knowledge that an RD petition had
already been filed. Accordingly, by entering into the contract,
the Union effectively had waived any right to object to the mere
fact that the Respondent might confer discretionary pay raises
during the pendency of the RD petition. And unless it could be
shown that the Respondent had unlawfully discriminatory mo-
tives for giving the particular raises called into question, there
was nothing unlawful per se (or “inherently destructive”) about
the Respondent’s having given those raises, or any of the many
other merit pay raises it handed out during the lengthy pend-
ency of the RD petition which have never been the targets of
the complaint.
C. Particular Application of Wright Line
Under Wright Line, as clarified and restated in more recent
decisions, the General Counsel’s burden in all cases turning on
employer motivation is to establish by a preponderance of the
credible evidence that an unlawfully discriminatory considera-
tion (typically, the employer’s hostility to a union or to union
activities or other protected activities by its employees) was a
“motivating factor” in the action of the employer challenged by
the complaint.26 If (and only if) such a showing is made, a

26 Wright Line used the expression “prima facie showing” (sufficient
to support an inference of improper employer motivation) to describe
the General Counsel’s burden. However, in the aftermath of Office of
Workers’ Compensation v. Greenwich Collieries, 512 U.S. 267 (1994),
the Board has effectively disavowed “prima facie showing,” and has
reaffirmed that the General Counsel’s burden requires proof of the
“motivating factor” element by a “preponderance” of the evidence. See
Tres Estrellas de Oro, 329 NLRB 8 (1999) (explicit disavowal of
“prima facie showing” formulation; Manno Electric, 321 NLRB 278,
280 fn. 12 (1996) (implicit disavowal). In both cases, the Board took
note of the District of Columbia Circuit’s observation in Schaeff Inc. v.
violation may be found even if the credible evidence might
show that other, “innocent” motives may also have figured in
the employer’s actions attacked in the complaint. Rather, even
where the employer may be found to have acted from a combi-
nation of lawful and unlawful motives, the employer may “es-
cape liability” for the violation only by itself “demonstrating”
that it would have taken the same actions without regard to its
unlawful motivation.27
Although I am persuaded that this case must be analyzed and
decided within the framework of Wright Line’s teachings and
its burden-shifting scheme, I must acknowledge, as the Re-
spondent points out on brief, that this case presents a somewhat
novel twist on the conventional paradigm envisioned by Wright
Line and progeny. Thus, the Board’s formulations in Wright
Line assume that the employer has been charged with having
taken discriminatory action against an identified employee or
group of employees because of their prounion activities or
other protected activities. But that is not the case here. Rather,
here, according to the General Counsel, the “discriminatees”
identified in the complaint are “antiunion” employees who
were singled out for “excessive” and “unjustified” pay raises
because the Respondent wanted to rid itself of the Union and
knew or believed that the employees favored with such raises
had been promoting the Union’s ouster and would continue to
do so if given palpable rewards and inducements for doing so.
Thus, the only difference between this case and a conventional
one raising Wright Line issues is that here, the acts of discrimi-
nation said to have been “motivated” by the Respondent’s wish
to rid itself of an unwanted union presence were not acts of
discrimination against prounion workers, but acts for the bene-
fit of antiunion workers, and a quite narrow and particular class
of antiunion workers at that—confined to three employees be-
lieved to be particularly active or influential in starting the de-
certification movement and keeping it alive during the lengthy
pendency of the RD petition.
Taking all of the foregoing into account, I reason that the
General Counsel’s threshold burden was to establish by a pre-
ponderance of the credible evidence that the antiunion views
and/or activities of the three employees named in the complaint
were motivating factors in the Respondent’s decisions to give
the complaint-identified raises to those particular employees. I
will conclude that the credible evidence preponderates in favor
of such a finding with respect to all pay raise actions identified

NLRB, 113 F.3d 264 (1997), that “[t]he practical effect of Greenwich
Collieries . . . may be no more than the abandonment of the term ‘prima
facie case’ to describe the General Counsel’s burden.” 113 F.3d at 267
fn. 5, further citing Southwest Merchandising Corp., 53 F.3d 1334,
1339–1340 and fn. 8 (D.C. Cir. 1995). (“[I]n the wake of Greenwich
Collieries, it will no longer be appropriate to term the General Coun-
sel’s burden that of mounting a prima facie case.”)
27 Wright Line, supra at 1089. Relatedly, I note that, although coun-
sel for the General Counsel does not expressly acknowledge Wright
Line’s applicability, she neatly echoes Wright Line’s formulation of the
burden which may shift to the employer when she argues on brief (p.
20) that “[the] Respondent failed to show that its conduct was based on
legitimate business reasons and that it would have conferred the excep-
tionally large raises in issue even if Mackron, Ojeda, and Tolentini had
not engaged in their antiunion activities.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1214
in the complaint save one—the granting of “merit” raises to the
three employees (and others) in December 1995. (In that case,
however, I will find that the “super-retroactive” component of
those merit raises as applied to the three employees amounted
to unlawfully discriminatory favoritism, substantially as alleged
in the complaint.) Under Wright Line, however, the Respondent
might nevertheless “escape liability” for a violation if it could
“demonstrate” by a preponderance of the credible evidence that
it would have taken the same pay raise actions without regard
to the antiunion activities of the three employees. I will con-
clude that the Respondent failed to carry this latter burden.
D. Issues of “Knowledge” and “Animus”
It is axiomatic that an employer cannot have been “moti-
vated” by an employee’s prounion or (in this case) antiunion
activities or sympathies to take action affecting that employee’s
status if the employer didn’t know or have a belief about the
employee’s activities or sympathies. Indeed, credible evidence
of “employer knowledge” is a necessary part of the General
Counsel’s burden, and without it, the complaint cannot sur-
vive.28 Moreover, proof of the knowledge element is not alone
sufficient. Rather, proof of “animus”—usually, but not always,
meaning proof of animus “independent” of the allegedly unlaw-
ful act itself—is likewise seen as an “essential element” in car-
rying the General Counsel’s case.29
Here, there is no doubt—and the Respondent effectively so
stipulated—that company officials responsible for the pay
raises in question knew virtually from the start that Tolentini
and Mackron were important figures in getting the decertifica-
tion movement going. And while there remains a marginal
question about “knowledge” as to Ojeda, the question is not
whether these officials saw Ojeda as a similarly influential
figure in the movement, but when they first perceived her in
that light. (She served as the Respondent’s observer in the elec-
tion, and the Respondent’s Regional Director of Human Re-
sources Igoa admitted that he and other top managers knew
before he asked her to be the company observer that she sup-
ported the Union’s ouster.) I will find that responsible company
actors knew or (correctly) believed at an early stage in the de-
certification effort that Ojeda wanted the Union out. This ulti-
mate finding is based on a combination of independent circum-
stantial evidence, credibility assessments, and adverse infer-
ences, all of which will be best understood only in the light of
additional findings. Accordingly I will revisit the matter later.
There is no similar reason, however, to defer the disposition of
the animus issue. As I explain next, the Board’s adjudications
in the RD objections case themselves supply the necessary
evidence of animus.
It remains uncertain and debatable what kind of evidence of
an employer’s antipathy to union representation will suffice to
suggest unlawful employer motive in a given case of alleged
discriminatory action. Such questions need not be answered

28 Stanford Linear Accelerator Center, 328 NLRB 464, 464 fn. 1
(1999) (“Without this knowledge, there is no basis for finding that there
was a prima facie case of discriminatory conduct.”). See also, e.g.,
Postal Workers (Postal Service), 278 NLRB 751, 752–753 (1986).
29 See, e.g., Columbian Distribution Services, 320 NLRB 1068,
1070–1071 (1996).
here, for it is at least well established in the Board’s annals, if
not axiomatic, that when an employer commits roughly con-
temporaneous unfair labor practices independent of the alleged
discrimination, this may be relied on to find the requisite ani-
mus. And here, the Board’s adoption of the hearing officer’s
now-undisputed findings in the RD objections case, made after
full litigation,30 can be taken as a Board adjudication that the
Respondent was not just guilty of objectionable conduct requir-
ing a new election, but that some of its conduct found objec-
tionable amounted to unfair labor practices proscribed by Sec-
tion 8(a)(1). In fact, it is clear that two different kinds of mis-
conduct by the Respondent’s agents were found to be objec-
tionable precisely because they were “unlawful.” Specifically,
the hearing officer, applying standards for determining whether
the conduct at issue violated Section 8(a)(1), found that the
Respondent’s agents engaged in the following “unlawful” con-
duct:
(1) Darren Moll (director of restaurants), Ulysses Black
(p.m. manager of the Café) and another “manager” (identified
by the hearing officer both as “Schmit” or “Smit”31) “treat[ed]
pro-union employees in a fashion different than the pro-
employer [sic] employees, by limiting the pro-union em-
ployee’s [sic] ability to speak with each other, or with uncom-
mitted employees.” This misconduct was further characterized
by the hearing officer as “disparate treatment [which was] both
objectionable and violative of Section 8(a)(1) of the Act.”32
(2) Moll, Brian Madlin (a.m. manager of the Cafe) and Betha
Soto (executive assistant housekeeper) variously “interrogated”
employees about their union activities or sympathies in a man-
ner which was “coercive” within the meaning of Section
8(a)(1)’s proscriptions and the coercion standards declared by
the Board in Rossmore House and Sunnyvale Medical Clinic.33
It may be that under Section 102.67(f) of the Board’s Rules
and Regulations alone, the Respondent would have been barred
from seeking to “relitigate” in this unfair labor practice pro-
ceeding whether its agents were guilty of the particular con-
duct, supra, which the hearing officer, affirmed by the Board,
found was not just “objectionable,” but “unlawful.” Alterna-
tively, it may be that traditional doctrines of res judicata, collat-
eral estoppel, or the general desirability of “finality” of adjudi-
cation would have barred such relitigation. See, e.g., I.O.O.F.
Home of Ohio, Inc., 322 NLRB 921, 922 (1997), and authori-
ties discussed and distinguished. These are questions, however,
30 As noted in part one, following a postelection hearing on certain
of the Union’s objections, the hearing officer found that the Respondent
engaged in certain objectionable conduct preceding the election held on
October 1, 1997, and recommended that the results of the election be
set aside. Moreover, although the Respondent initially filed exceptions
with the Board to the hearing officer’s findings and recommendations
in this regard, the Respondent moved on December 31, 1998, to with-
draw those exceptions, and, on May 20, 1999, the Board granted this
motion and, based on certain no longer disputed objectionable conduct
found by the hearing officer, issued a Decision and Oder directing a
new election.
31 The parties stipulated in this case (GC Exh. 2) that Johan Smit was
a “Room Service/Café/Grille Manager from on or about April 3, 1996
to the present.”
32 Hearing Officers Report and Recommendations, p. 31.
33 Id. at 32–35.
MIRAMAR SHERATON HOTEL 1215
which are unnecessary to reach, for the Respondent did not
seek to relitigate any of those matters in this proceeding.34 Es-
pecially in those circumstances, the Board’s affirmance of the
hearing officer’s findings would at a minimum permit me to
“accord persuasive relevance [or] a kind of administrative com-
ity” to those findings for purposes of finding in this case that
the Respondent harbored animus against the Union. Serv-U
Stores, 234 NLRB 1143, 1144 (1978). Nor would it seem to
matter for purposes of finding animus that the Board’s adjudi-
cation that the Respondent was guilty of objectionable conduct
amounting to unfair labor practices had a pro forma quality, in
that the Respondent had previously withdrawn its exceptions to
the hearing officer’s findings. In that respect the situation
would seem to be fully analogous to that sometimes presented
in unfair labor practice cases where, in the absence of excep-
tions to an administrative law judge’s findings of violation after
full litigation, the Board will enter pro forma findings of its
own that an employer has violated the Act, and will enter an
appropriate remedial order. And in that context, the Board has
expressly held that even though the pro forma nature of the
Board’s unfair labor practice findings may “diminish or even
negate the precedential value of the rationale” of the decision,
the decision still may properly be “considered . . . when deter-
mining whether a respondent has demonstrated a proclivity to
violate the Act.” Operating Engineers Local 12 (Associated
Engineers), 270 NLRB 1172, 1173 (1984).
Accordingly, I rely on the Board’s adjudications after full
litigation in the RD objections case to find that the Respondent
committed what amounted to independent unfair labor practices
during the preelection campaign, misconduct, which, in turn,
supplies the requisite animus in this case.
E. Other Principles Applicable to “Motive” Cases
Whether unlawfully discriminatory considerations were mo-
tivating factors in the Respondent’s granting of the complaint-
listed pay raises is the pivotal question in the case. The record
contains a wide and sometimes confusing variety of circum-
stantial evidence having potential bearing on that question. And
while much of the circumstantial evidence is undisputed, even
the undisputed items of evidence do not all point in the same
direction. However, for introductory purposes I should state
that many of my findings as to contested questions are based in
part on two well-recognized kinds of adverse inferences, which
may be drawn whenever employer motive is the central ques-
tion. Thus, it is well-established that an unlawful employer
motive may be inferred where the employer’s stated reasons for
the action in question are themselves seen by the trier-of-fact as
false or highly dubious in the light of reliable surrounding evi-
dence. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966), stating:

Actual motive, a state of mind, being the question, it is
seldom that direct evidence will be available that is not
also self-serving. In such cases, the self-serving declara-
tion is not conclusive; the trier of fact may infer motive
from the total circumstances proved. Otherwise no person

34 I left the door open for that possibility. See colloquy, Tr. vol. III,
pp.199–210.
accused of unlawful motive who took the stand and testi-
fied to a lawful motive could be brought to book. Nor is
the trier of fact—here the trial examiner—required to be
any more naïf than is a judge. If he finds that the stated
motive . . . is false, he certainly can infer that there is an-
other motive. More than that, he can infer that the motive
is one that the employer desires to conceal—an unlawful
motive—at least where . . . the surrounding facts tend to
reinforce that inference.

Relatedly, an adverse inference may be drawn regarding the
employer’s “real” motive where the employer relies on “weak”
evidence “ (e.g., the testimony of an agent that specific “busi-
ness” reasons accounted for the allegedly unlawful action)
where the employer is in possession of stronger evidence (e.g.,
relevant business records, or the testimony of other knowledge-
able management agents) which would either corroborate or
contradict the testimonial claim, but which the employer never-
theless fails to introduce. See, e.g., Welcome-American Fertil-
izer Co., 169 NLRB 862, 870 (1968): “The failure to produce
such evidence ‘not only strengthens the probative force of its
absence but of itself is clothed with a certain probative force.’”
(Citing and quoting from Paudler v. Paudler, 185 F.2d 901,
903 (5th Cir. 1951). Accord: Auto Workers v. NLRB, 459 F.2d
1329, 1336 (D.C. Cir. 1972), further stating (id. at 1338):

The theory behind the [adverse inference] rule is that, all
other things being equal, a party will of his own volition
introduce the strongest evidence available to prove his
case. If evidence within the party’s control would in fact
strengthen his case, he can be expected to introduce it even
if it is not subpoenaed.. . . Conversely, if such evidence is
not introduced, it may be inferred that the evidence is un-
favorable to the party suppressing it.

See also International Automated Machines, 285 NLRB 1122,
1123 (1987), where the Board reaffirmed the “familiar rule . . .
that when a party fails to call a witness who may reasonably be
assumed to be favorably disposed to the party, an adverse infer-
ence may be drawn regarding any factual question on which the
witness is likely to have knowledge.”
III. SUPPLEMENTAL BACKGROUND FINDINGS
A. Unique Aspects of the Labor Relations Setting
As I have already found: The Union’s longstanding status as
the employees’ representative came under formal challenge on
May 26, 1995, when Art Tolentini, a cashier in a hotel restau-
rant, called The Café, completed, signed, and filed with the
Regional Director a petition for decertification election (RD
petition), docketed as Case 31–RD–1317. On October 1, 1997,
an election was conducted pursuant to the RD petition. After
the RD election, the Regional Director determined that a major-
ity of the employees who cast valid ballots had voted against
continuing representation by the Union.
Not long after the RD petition was filed, there occurred two
undisputed developments significantly affecting the ongoing
labor relationship between the Union and the Respondent: (1)
The parties “finalized” (i.e., agreed to become bound to and to
implement) a 5-year labor agreement, made retroactively effec-
tive to December 1, 1995; and (2) the Union was placed under
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1216
International trusteeship. The record is sketchy concerning both
developments, however, and it cannot be determined from the
available evidence whether the parties’ finalizing of the union
contract preceded the imposition of the trusteeship, or vice-
versa. I set forth below what the record affirmatively shows
with respect to both such developments:
On March 31, 1995 (about 2 months before the RD petition
was filed), the Union and the Respondent had already reached a
“tentative” agreement (expressly made subject to ratification by
the Union’s membership by April 6,1995) on terms for a new,
5-year contract to replace a predecessor agreement, which ap-
parently had expired at the end of November 1994.35 However,
if any ratification process ever occurred thereafter, it did not
happen prior to the declared April 6 deadline, but only at some
point after the RD petition was filed.36 In any case, it was not
until about a month after the RD petition was filed (i.e., on or
about June 26, 1995) that the parties took steps to “finalize”
their once-tentative agreement, following which they treated it
as mutually binding and effective throughout its stated 5-year
term.37 In addition, at some point in June 1995, definitely after
the RD petition was filed, a trusteeship was imposed on the
Union, and new officers and representatives were appointed to
replace those who had previously negotiated the “tentative”
agreement.38 (One of the new appointees was lead organizer

35 Human Resources Director Rafael Igoa vaguely testified (on June
23, 1999) that the parties had been bargaining for a new contract since
an uncertain date in or before November 1994. It is independently clear
that on March 31, 1995, the Union’s and the Respondent’s representa-
tives signed a contract document (R. Exh. 1) which indicated on its face
that it would be made retroactively effective from December 1, 1994,
and would continue in effect until November 30, 1999. However, be-
neath the signatures on the last page of this document was a handwrit-
ten notation, initialed by the parties, which stated, “Tentative, subject to
ratification by April 6, 1995.”
36 The General Counsel represents on brief (p. 3 fn. 3) that “[t]he de-
certification petition was filed . . . after the parties had reached agree-
ment on a new contract but before it was ratified and executed. There-
after, the parties signed a new agreement . . . effective from about De-
cember 1, 1994 through November 30, 1999.” Although these represen-
tations are not contradicted by any evidence of record, some of them
suggest the existence of facts for which I can find no affirmative sup-
port in the record. Thus, there is no direct evidence or testimony from
anyone with firsthand knowledge that the Union did conduct a ratifica-
tion vote at some point after the filing of the RD petition, and neither is
there any evidence that, after the filing of the RD petition, the parties
eventually “signed a new agreement” (as distinct from the process
occurring in late June 1995, as vaguely described by Igoa, below, when
the parties somehow “finalized” the once-”tentative” agreement). In
any case, it is clear that the parties did not consider themselves bound
to the tentative agreement at any point prior to the filing of the RD
petition, and neither, apparently, did the Regional Director regard the
tentative agreement as binding on the parties, considering that he did
not treat the tentative agreement as sufficient to constitute a “contract
bar” to the processing of the RD petition to an election.
37 Igoa further testified (on June 23, 1999) that, on or about June 26,
1995, the parties “finalized” and “start[ed] to implement” the terms set
forth in R. Exh. 1, i.e., their once-”tentative” agreement.
38 In my 10(b) decision, I noted that it was uncertain on the record
made by that point whether the trusteeship was imposed prior to the
filing of the RD petition, or in its wake. It is now clear from the testi-
mony of Tom Walsh, the Union’s International Trustee at the time of
Kurt Petersen, who, starting in or around September 1995, took
on primary responsibility for mounting a kind of “reorganizing”
campaign, among the unit employees, i.e., a campaign to
counter the decertification effort.39) To repeat, however, the
sequence of these developments remains uncertain. Thus, we
don’t know whether it was the Union’s pretrusteeship represen-
tatives who did whatever it took to finalize the once-tentative
agreement with the Respondent, or whether, instead, it was the
new, trustee-appointed representatives who took these finaliz-
ing steps on the Union’s behalf.
The wage provisions in article XIX of the new contract (R.
Exh. 1, pp. 17–18) are confusing in both their terminology and
their intended application. But it is at least clear that the wage
provisions contemplated that a two-tier schedule of hourly
raises would be paid immediately, and would be made retroac-
tively effective to February 1, 1995. Thus, under the two-tier
scheme, one group of employees, confusingly called “minimum
wage” employees, would get a 10-cent retroactive raise, while
another group, called “non-minimum wage” employees, would
get a 30-cent retroactive increase. The parties currently appear
to agree—and I find, in any case—that “minimum wage” em-
ployees refers to employees already being paid at or above the
“minimum scale” provided in the new agreement, and that
“non-minimum wage” employees refers to those currently earn-
ing less than the minimum “union scales.”40 The wage provi-
sions also required that an additional 30-cent hourly increase
for the “non-minimum wage” (under-“scale”) employees would
kick-in on December 1, 1995, and that additional 30-cent in-
creases would be given to such “non-minimum wage” workers

this litigation, that the latter was the case—that the Union was placed
under International trusteeship (and Walsh was appointed International
Trustee) sometime in June 1995. The documentary record also shows
now that on June 29, 1995 (apparently soon after the Union and the
Respondent had “finalized” their once-”tentative” agreement), Walsh
sent a letter (R. Exh. 14) to the Respondent’s general manager, Worces-
ter, informing Worcester of his appointment, identifying himself as
“empowered to conduct all affairs of Local 814,” and identifying four
other persons as the Union’s “Field Representatives.”
39 As noted in my 10(b) decision, Petersen was an employee on the
International staff who holds a law degree, and who began functioning
in his new position in September 1995, with primary responsibility for
servicing the labor agreement with the Respondent and for directing a
campaign aimed at convincing the bargaining unit employees to retain
the Union as their representative.
40 My findings here are consonant with the Union’s current interpre-
tation of the two-tier pay increase provisions. See U. Br. at 44. (How-
ever, it deserves noting that the Union once seems to have interpreted
the provisions as meaning exactly the opposite of what it now concedes
they mean. See Jt. Exh. 3.) My findings also appear to be harmonious
with Igoa’s somewhat cloudy testimony on the subject. In any case, that
“non-minimum wage” was intended to mean “under union scale” is
suggested by parenthetical handwritten wording on p. 17, which states,
“above scale employees shall receive $0.10 per hour increase.” The
same interpretation is affirmed in typed language at the top of p. 18,
equating “non-minimum wage” with “below the union scale,” and
further distinguishing “non-minimum wage” from “below the State
minimum wage.”
MIRAMAR SHERATON HOTEL 1217
on December 1 of each succeeding year, through December 1,
1998.41
Article IV, section 8 of the new contract (R. Exh. 1, p. 5) al-
lowed the Respondent, at its “sole discretion,” to “pay a supe-
rior worker more” than the “minimum scales.” Other provisions
in the contract were to similar effect.42 Any raise the Respon-
dent gave to a bargaining unit employee earning at or above the
minimum scale (or which brought the employee above the gov-
erning minimum scale at any given point) was called a “merit”
raise. Relatedly, Human Resources Regional Director Igoa
testified categorically that merit raises were by definition
amounts in excess of those contemplated by the hotel’s operat-
ing budget for departments employing bargaining unit workers.
Instead, said Igoa, the “budgeted” pay rate for a bargaining unit
worker was the pay rate established by the union contract. Con-
sequently, said Igoa, the Respondent’s policy was that any
granting of merit raises required not only his own personal
approval, but also that of the general manager of the hotel, and
the director of the department where the employee worked who
was receiving the merit raise.
B. Relevant Company Operations and Hierarchy
At times material to the complaint (roughly coextensive with
the nearly 29-month period between the filing of the RD peti-
tion and the holding of the election), William Worcester was
the Respondent’s general manager, in charge of all hotel opera-
tions, and Rafael Igoa was the regional director of human re-
sources. Most of the bargaining unit employees worked either
in the housekeeping department or the food and beverage de-
partment. We will be concerned primarily with the food and
beverage department, which employed more than 100 bargain-
ing unit workers at material times, among them Mackron,
Ojeda, and Tolentini, who all worked as cashiers in The Café,
one of two restaurants in the hotel. The other restaurant was
The Grille, which first opened for business in December 1994.
Michael Dunne, titled food and beverage regional director,
headed the food and beverage department until his departure for
another job in or about April 1997. As his title implies, Dunne
was responsible not only for the operations in the two restau-
rants, The Café and The Grille, but also for the beverage ser-
vice in the hotel bars, and the food and drink service conducted
during special events held in locations other than the restaurants
or the bars, such as banquets or receptions held in ballrooms or
suites. Other, subordinate managers with admitted 2(11) super-
visory authority stood between Dunne at the top of the food and
beverage department and the hourly paid rank-and-file workers
in the department. One was Regional Director of Restaurants
Darren Moll, who operated immediately beneath Dunne in the

41 I am unable to determine from the contract or the surrounding re-
cord whether the parties intended that the other group of employees,
those earning at or above scale, would be entitled to 10-cent raises on
December 1, 1995, and on December 1 of succeeding years.
42 The management-rights clause in the contract (id. at p. 3) broadly
ceded to the Respondent the right to “grant merit wage or other com-
pensation increases at [its] sole discretion.” Another contract provision,
art. XVI, sec. 1 (id. at p. 15), further gave the Respondent the “right, at
[its] option and discretion,” to pay “year-end bonuses” to certain em-
ployees in amounts that “exceed” those year-end bonuses which might
otherwise be required by the union contract.
department hierarchy. Working beneath Moll as first-line man-
agers of The Café were Brian Madlin, who functioned primar-
ily as the “AM” (or day-shift) manager of The Café and its
room service operations, and Ulysses Black, who (until his
discharge, which became final on or about March 6, 1998)
performed a similar function as the “PM” manager of The Café.
Both Madlin and Black also had some uncertain degree of re-
sponsibility on their shifts for the operations of The Grille.
Moreover, a third “Café/Grille Manager,” Johan Smit, was
hired in early April 1996, and remained in that job throughout
the duration of the preelection period. The final known first-
line supervisor in the food and beverage department was
Griselda Gutierrez, the “assistant manager” of The Grille.
Gutierrez had been promoted and transferred to her position in
The Grille on October 27, 1994, slightly more than a month
before The Grille officially opened for business. Prior to that
time, Gutierrez had functioned as a 2(11) supervisor of the
cashiers in The Café; and in that position, she did no cashier
work herself, and had been treated as outside the bargaining
unit.
C. Credibility Digression
I pause to note that of all the management people just named,
the Respondent chose to call only two of them, Igoa and
Dunne, during its own defensive presentation. Igoa also was
called and examined adversely by the prosecuting parties dur-
ing their own cases-in-chief. Dunne’s testimony dealt chiefly
with the $3 raise given to Mackron in May 1996 and the two,
successive, $1 raises given to Ojeda in June and August 1996.
(In substance, and subject to elaboration below, Dunne said he
recommended the $3 raise for Mackron because she threatened
to quit unless she got that raise, and he didn’t want to lose her,
and that he gave at least the second of the successive $1 raises
to Ojeda to appease her once she discovered that Mackron had
gotten the $3 raise and then demanded a comparable raise her-
self, and because he didn’t want to lose her, either.) The only
other “management” witness we heard from was former Man-
ager Ulysses Black, and he appeared as a union-subpoenaed
witness who testified adversely to the Respondent’s interests,
just as he had during the earlier RD objections hearing. I will
have many reasons to doubt certain aspects of the accounts of
each of these witnesses. Below, I will record my general im-
pressions regarding Igoa’s and Black’s credibility, leaving the
matter of Dunne’s credibility (and that of other witnesses) to
incidental discussion in later sections.
From the Respondent’s standpoint, Igoa’s testimony counted
the most: He was admittedly a necessary actor in connection
with each of the pay raises in question, and it is clear from his
testimony and a variety of other record sources that without his
affirmative approval, and that of General Manager Worcester,
none of these raises could have been given. Moreover, it is
clear that Igoa was the prime mover (and not simply an “ap-
prover”) with respect to the hefty retroactive paychecks given
to Tolentini, Mackron, and Ojeda in December 1995, in con-
nection with the merit raises they received in that month. (Al-
though Igoa asserted that Dunne played an instrumental role in
recommending the retroactive pay amounts, Dunne denied this
and said he had no knowledge as to why those retro amounts
were conferred or how they were calculated.) Igoa was a decid-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1218
edly unimpressive witness in most respects. His explanations
for each of the raises during his initial adverse examinations
had an improvised quality; they were delivered in many in-
stances with evident discomfort and confusion, and were some-
times quite self-contradictory, or were contradicted by business
records and other reliable evidence. (He had fewer such prob-
lems when called for friendly questioning as the Respondent’s
witness on the next-to-last day of trial, but then he seemed to be
trying to adhere to a prescribed “line,” and even then his testi-
mony was frequently confusing.) He was evasive and self-
contradictory in the face of adverse examination not only about
the reasons for the raises but the nature of and frequency of his
preelection contacts with Mackron. He showed similar evasion,
self-contradiction, and overall coyness when it came to ques-
tions such as how and when he and other top managers first
learned of Ojeda’s support for the campaign against the Union,
and why he and the other managers picked Ojeda, rather than
some other known antiunion worker, to serve as the company
observer in the election. When I examined him seeking clarifi-
cation of certain aspects of his testimony, I was usually left
more confused than enlightened. Many of his assertions and
explanations lacked corroboration under circumstances where
the Respondent could have been expected to supply the same if
what Igoa was saying was true. (For example, the Respondent
did not call other managers to testify, such as General Manager
Worcester and AM Café Manager Madlin, both of whom con-
tinued to be in the Respondent’s employ during the trial, and
both of whom may be presumed to have had firsthand knowl-
edge about many matters relevant to the pay raises attacked by
the complaint.) Because of my overall unfavorable impressions
of Igoa, I will not credit him except as I specifically indicate
below, and I will draw appropriate adverse inferences as to
certain important questions of knowledge and overall motiva-
tion as further noted below.
As I explain next, Black’s reliability is also open to question
in many respects, and I will give only very narrow and limited
credence to what he had to say as a witness for the prosecution.
Worth noting first in this regard is the history of Black’s shift-
ing relationship with Mackron: At material times Mackron
worked the “PM” shift in The Café, and Black was her imme-
diate supervisor on that shift until he was fired in early March
1988. Both Mackron and Black acknowledged, however, that
their relationship went beyond the workplace—that they were
dating one another for some period of time after the RD petition
was filed. In fact, both appear to agree that their dating relation-
ship went on for at least 18 months after the RD petition was
filed (i.e., through 1996). Beyond that, Black testified that their
friendship and “socializ[ing]” away from work continued
throughout the preelection period,43 and ended only at some

43 I rely on the following examination by Union Counsel Jellison:
Q. Okay. Now during the period from 1995 through 1997,
were you friendly with Deborah Mackron?
A. Yes.
Q. Okay, did you work with her?
A. Yes I did.
Q. Okay, did you socialize with her away from work?
A. Yes.
Q. Now at any time—
uncertain later point when they “had a big fight.” Although it is
not clear when the “big fight” occurred, Mackron’s testimony
at least makes it fairly clear that their friendship did not really
come to an end until sometime in May or June 1998, after
Black had been fired, and had then given testimony in the RD
objections hearing adverse to the Respondent’s (and Mack-
ron’s) interests. Mackron states she learned about the latter
from newspaper stories published in the aftermath of the objec-
tions hearing containing interviews with Black in which Black,
in Mackron’s words, told a number of “lies.” She also states
that it was at some point after this that the two encountered one
another for the final time, in or near Malibu, at which point
Mackron gave Black the finger, a gesture, which marked the
last-ever communication of any kind between them.44 At least
as important in considering the weight to be given to Black’s
testimony is the shifting nature of Black’s relationship with the
Respondent. As previously noted Black had been fired in early
March 1998. Then, on March 9, 1998, Black had filed a ULP
charge with the Regional Director alleging that he had been
fired for refusing to participate in unfair labor practices during
the preelection period. (His charge was later dismissed as with-
out merit by the Regional Director, and, on appeal, by the of-
fice of the General Counsel.) However, his charge was still
pending investigation by the Regional Director when he gave
testimony adverse to the Respondent as a witness for the Union
in the RD objections hearing in May 1998. Insofar as is here
relevant, he testified in that hearing that he had maintained a
posture of principled resistance to participating in what he
thought were illegal, “union-busting” tactics being promoted by
the company. He also depicted Mackron in that hearing as little
more than a hustler who used her willingness to promote the
Union’s decertification as a lever to extract undeserved pay
raises from the Company. (Indeed, he testified that he had
communicated these disapproving views to Mackron on many
occasions during their ongoing relationship.) But Black had an
obvious interest, considering his then-pending ULP charge, in
thus portraying himself as a manager uniquely opposed on ethi-
cal grounds to what he saw as unlawful behavior on the Re-
spondent’s part. Moreover, considering that he admittedly
maintained his off-duty friendship with Mackron throughout
the same preelection period, and his dating relationship with
her for at a least a substantial part of that same period, I am
inclined to doubt that he was as disapproving of her and as
resistant on grounds of principle to assisting the Company in
helping to defeat the Union as he claimed. In addition, although

JUDGE NELSON: Which period did you direct the witness’s
attention to?
Q. [By Mr. Jellison]: The first, that is a good question, I was
directing the question to the period mid 1995 to October of 1997,
would that be true for that time period?
A. Yes.
44 Black and Mackron agree that their last contact of any kind oc-
curred in Malibu (after the RD hearing, I find from Mackron), at or
near riding stables where Mackron kept horses. Black recalled that
Mackron gave him the finger in the parking lot of the stables and then
walked away. Mackron recalls that she was in her car on the Pacific
Coast Highway near the stables when she passed him and flipped him
off.
MIRAMAR SHERATON HOTEL 1219
his ULP charge had been dismissed by the time Black appeared
in the trial before me, he had by then become locked in to the
claims (all stated in broad and conclusionary terms) he had
made under oath in affidavits associated with his ULP charge
and as a witness in the RD objections hearing. Beyond that, it
was evident from his demeanor and his testimonial style in this
trial that he was still nursing a grievance over having been fired
by the Respondent, and still wanted to get last licks in against
the company. Thus he regularly displayed an eagerness to vol-
unteer in sweeping and conclusionary terms information dam-
aging to the Respondent (and to Mackron), only to deliver a
less damaging and sometimes quite self-contradictory account
once he was examined more closely and required to provide
foundational and other details. Indeed, by his overall demeanor
and style, he struck me as an often reckless witness with an
obvious axe to grind; and he left me persuaded that his general-
ized smears against Mackron and the Company amounted to
little more than subjective interpretations posing as recollec-
tions, and biased ones at that. Moreover, his testimony in this
trial in certain ways contradicted or was at variance with what
he had asserted in the RD objections hearing.45 (I will place no
independent reliance on any feature of Black’s testimony in the
RD objections hearing.46) Nevertheless, I will place limited
reliance on certain features in Black’s testimony before me
(identified specifically in later findings), where he showed not
just apparent sincerity, but an ability to describe a specific
transaction with a specific individual in convincing detail and
with reasonable clarity and consistency.
D. Staffing and Operations in The Café
At all material times, Mackron, Ojeda, and Tolentini were
classified by the Respondent on personnel and payroll records
as “food and beverage cashiers,” and they worked exclusively
in The Café. My further findings concerning staffing and opera-
tions in The Café are influenced in small ways by the accounts
of Mackron, Ojeda, and Tolentini, but they are based primarily
on the undisputed testimony of Norma Rodrigez, another cash-

45 One principal example was his testimony in the objections hearing
that he once “overheard” a conversation occurring in his own “office”
between Igoa and Mackron during which Mackron and Igoa “dis-
cuss[ed] updates of what is going on” and “who she [had] persuaded
and who is not persuaded” with respect to her campaign to oust the
Union. (When this supposedly happened is anyone’s guess: Black was
not normally invited during the RD objections hearing, much less re-
quired, to deal with such foundational matters.) He gave no such testi-
mony in the trial before me. In fact, he affirmatively admitted that he
had never been able to overhear any conversations between Mackron
and Igoa (and/or Worcester) wherein she may have given campaign
“updates” to either or both of those managers.
46 It is apparent that the hearing officer in the objections case relied
in part on Black’s testimony to find that that the Respondent “treat[ed]
pro-union employees in a fashion different than the pro-employer em-
ployees, by limiting the pro-union employee’s ability to speak with
each other, or with uncommitted employees.” My own findings con-
cerning the limits of Black’s reliability are in no way intended to sec-
ond-guess, much less impeach, the hearing officer’s findings. Indeed,
as I have already indicated, I rely on the hearing officer’s findings, as
adopted by the Board, for purposes of finding in this case that the Re-
spondent harbored antiunion animus.
ier in The Café, and the one who provided the most coherent
account regarding such matters.
The Café is open for business daily from 6:30 a.m. to 11
p.m. It serves breakfasts, lunches, and dinners, and handles
room service orders. (The record otherwise shows that The
Grille, which, unlike The Café, includes a bar, does not open
until late morning, and serves only lunches and dinners.) Five
cashiers customarily work in The Café during its 16–17 hours
of daily operation, three of them during what may be loosely
described as the “day shift,” and two on the “night shift.” On a
typical day, one cashier arrives at 6 a.m. to “open” The Café;
one more arrives at 6:30 a.m., to start working on room service
breakfast orders, and a third arrives at 7 a.m. The 3-day-shift
cashiers finish their staggered shifts between 2 and 4 p.m. One
of the 2-night-shift cashiers works from 1:30 to 9:30 p.m. and
the other works the 4 p.m. to midnight closing shift. The five
employees clearly identified as cashiers in The Café as of De-
cember 1995 were Deborah Mackron, Carmen Medina, Alicia
Ojeda, Norma Rodrigez, and Art Tolentini. (The record further
indicates that two other employees classified as “food and bev-
erage cashiers,” Kimberly Butler and Karen Leung, were also
employed as of December 1995.47 However, I can’t determine
from the record whether Butler and Leung also worked in The
Café, or whether instead they worked as cashiers in The Grille.)
During the largest part of the preelection period, Ojeda
shared the day shift with two other cashiers, and worked under
Brian Madlin’s immediate supervision, while Mackron and
Tolentini usually worked the p.m. shifts, under Ulysses Black’s
immediate supervision. Also worth noting here is that no one
had “replaced” Gutierrez when she transferred to the Grille in
late October 1994; that is, her unique position as a “cashier-
supervisor” who did no cashier work simply disappeared. How-
ever, the record vaguely indicates that, over a quite uncertain
period of time after Guttierrez transferred, Mackron and Ojeda
(the most senior cashiers on their respective shifts) gradually
began to take on some of the nonsupervisory tasks which
Gutierrez had formerly performed, such as distributing to room
servers and restaurant servers the tips received during her shift,
according to a prescribed allocation formula.
E. Decertification Activities
1. Early stages
For findings in this subsection I rely chiefly on a blending of
credible and harmonious features in the not-entirely-credible
testimonial accounts of Mackron, Ojeda, and Tolentini.48
47 Butler’s and Leung’s names appear, in addition to the five cashiers
previously named, on U. Exh. 25 (at p. 2), which is a union-compiled
summary of undisputed data gleaned from personnel and payroll re-
cords subpoenaed from the Respondent. As noted elsewhere below, the
Respondent asserts that Leung was also the recipient of a raise and a
retroactive pay amount in December 1995 comparable to those given to
Tolentini, Mackron, and Ojeda.
48 Mackron, Ojeda, and Tolentini were each called to testify during
the General Counsel’s and the Union’s presentations of their respective
cases-in-chief, and they each appeared pursuant to a subpoena issued
by one or both of the prosecuting parties. However, each had previ-
ously conferred one or more times with the Respondent’s attorney, and
Mackron (at least) had given that attorney a copy of the affidavit taken
from her by a Board agent during the precomplaint investigation of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
The employee campaign to oust the Union began only
shortly before the RD petition was filed. It started among the
cashiers in The Café, and Mackron was the sparkplug, even
though Tolentini ended up filing the RD petition in his own
name. What got Mackron going was her (apparently accurate)
belief that under the not-yet finalized contract which the Union
and the Respondent had “tentatively” signed on March 31,
1995, she and other cashiers would receive only a 10-cent raise
over their current (above-“scale”) hourly pay. Mackron and
Ojeda commonly testified, in substance, that they believed that
they weren’t getting anything for their union dues and “didn’t
need the Union” (Ojeda). According to Tolentini, all of the
cashiers had been expressing their “dissatisfaction” with the
Union’s representation of them. Mackron also confirmed that
all of the cashiers “carried the same amount of animosity . . .
towards the Union.”
Mackron did other groundwork on her own. She learned
from a friend who worked for the Federal Labor Relations
Board that the NLRB had procedures for a getting an incum-
bent union decertified. She followed up by consulting with one
or more persons at the offices of NLRB Region 31. She learned
through these inquiries that an employee could file an RD peti-
tion, but that it would not be processed unless the RD petitioner
could supply the requisite “showing of interest,” i.e., evidence
that at least 30 percent of the bargaining unit employees no
longer wanted representation by the Union. She learned that
one way to supply this showing was to have employees sign a
petition stating just that. She also learned that a formal RD
petition could not be processed and would be dismissed if filed
during the term of a current union contract covering the unit in
which a decertification election was sought. She believed in
May 1995 that the Union would soon be holding a ratification
vote on the “tentative agreement,” which might result in that
agreement’s soon going into effect. Consequently, she believed,
and communicated this to Tolentini and perhaps others, that
there was some urgency to getting an RD petition filed and
supported by a showing-of-interest petition.
On or about May 24, Mackron drafted a showing-of-interest
petition in English and brought it to work the same afternoon.
Tolentini prepared a counterpart version in Spanish, translating
the language Mackron had used. Then, while at work the same
afternoon and evening, Mackron, perhaps aided by Tolentini,
circulated copies of the petition among the workers in The Café
and elsewhere. By the time their shift was over, about 60 em-
ployees had signed the petition. Ojeda testified that Mackron
solicited her signature on the petition, and this suggests that this
must have happened early on in Mackron’s shift, at a point
when Ojeda was still working her day shift. Moreover, consid-
ering Mackron’s account of other sequences described below,

Union’s “Fourth Amended Charge.” Moreover, their interests were in
certain obvious ways adverse not only to the Union (they had cam-
paigned for the Union’s ouster, after all) but to the General Counsel
(who was taking the position, by then well publicized in all quarters,
that the Respondent must somehow “rescind” their pay raises). Each of
them struck me as sometimes candid, but more often as coy, evasive,
and generally trying to adhere to a common line, roughly the same line
maintained by the only witnesses called by the Respondent in its de-
fense, Igoa and Dunne.
this also suggests that Ojeda’s signature must have been one of
the first to appear on the showing-of-interest petition. Before
Mackron left work at the end of her shift, she turned the peti-
tion over to someone else, perhaps to Eduardo Sanchez in
housekeeping, and the petition continued to be circulated
among and signed by housekeeping and other employees.
When Mackron returned to work the following day, upwards of
90 employees had signed the petition. The same afternoon,
Mackron and Tolentini went together to the Regional Office
with the required showing-of-interest petition in hand. They
returned again to the Regional Office the next day so that To-
lentini could sign the formal RD petition. Mackron had ar-
ranged in advance with Tolentini that Tolentini would sign the
RD petition. According to both Tolentini and Mackron, the
reason for this arrangement was that Mackron was soon due to
be away on vacation. (I don’t find it necessary to determine
whether this was the real reason for Tolentini’s becoming the
“official” RD petitioner, rather than Mackron herself.)
Igoa admittedly had received information, at or around the
time of the RD petition filing, that Mackron had been soliciting
signatures on some kind of decertification petition.49 He also
admittedly believed (as did Food and Beverage Regional Direc-
tor Dunne, and presumably all other top company officials,
including General Manager Worcester) that Mackron was the
“catalyst” for the whole movement.
2. Mackron’s ongoing contacts with Igoa during the
pendency of the RD petition
Igoa and Mackron also admitted (although grudgingly, and
only by stages) that, after the RD petition was filed, the two had
several personal discussions relating to the decertification ef-
fort, all during Mackron’s worktime, and typically outside the
hotel near one of the street entrances. Igoa implied that the
encounters occurred only by happenstance, when Mackron
would flag him down while he was making his “rounds”
through the hotel. And he insisted that each encounter was es-
sentially routine and repetitive in nature—that Mackron would
simply ask about the status of the RD petition and why the
election was being “held up.” But it was hard to reconcile the
notion that the conversations were merely routine with the fact
that Igoa saw fit in each case to go outside the hotel with Mack-
ron before conducting them. And Igoa was at his most reveal-
ingly uncomfortable and least persuasive in trying to navigate
through these waters, as is well exemplified in the following
exchanges with counsel for the Union (emphasis added):

[By Mr. Igoa] Because I would—I make rounds and
when I make rounds [Mackron would] stop me and ask
me. So I would say, okay, let’s walk outside and so we
would walk outside.
49 Igoa said he learned this from a named representative of the (pre-
trusteeship) Union, during “negotiations.” There is no evidence that any
“negotiations” were then taking place. (The terms of the union contract
had already been worked out by March 31, when the parties “tenta-
tively” signed-off on them.) But perhaps Igoa was simply in error
about the precise context in which he had met with the representative
and first received word from him of Mackron’s decertification activi-
ties.
MIRAMAR SHERATON HOTEL 1221
Q. So you and she would walk outside to discuss this
so that other employees wouldn’t hear?
A. Because it’s something that pertained between her
and me. I would not discuss in front of other employees
any questions that they may have about themselves or
about—
Q. Well, this was a question about the election, cor-
rect?
A. That’s right.

As I discuss below, I think the realities of their relationship
were rather different from the picture so faintly and grudgingly
sketched by Igoa and Mackron.
There is good reason to start with to doubt that in each such
meeting, Mackron and Igoa would merely discuss the “status”
of the RD petition—and no more. For one thing, the petition
remained in a kind of limbo status throughout all but the final
month of its lengthy pendency. Thus, it is implausible that
Mackron and Igoa would have to step outside the hotel just so
Mackron could ask Igoa, in effect, “Any change in the status of
the petition yet?” In fact, Igoa unwittingly contradicted this line
when he acknowledged that Mackron herself had told him that
she had been the real driving force behind the RD petition-
filing, and that the reason Tolentini had signed the RD petition,
and not Mackron, was that Mackron would be away on vaca-
tion and unavailable. Apparently, therefore, Mackron was not
shy about disclosing such details to Igoa, and Igoa was inter-
ested enough to hear her out and to recall such details from the
witness stand a full 4 years later. Indeed, Mackron’s sharing of
such information with Igoa suggests that they saw each other as
allies in the campaign to decertify the Union, and that it would
have been in their mutual interest to use the meetings as a fo-
rum to discuss other details of the decertification campaign,
such as who favored getting rid of the Union, who did not, and
who might be on the fence.
Moreover, that some such ongoing alliance existed between
Mackron and Igoa is strongly suggested in a portion of ex-Café
Manager Black’s testimony, which I found particularly credi-
ble. Thus, relying on Black, I further find as follows: The meet-
ings between Mackron and Igoa occurred with considerable
frequency, and continued throughout the pendency of the RD
petition. (I reject as exaggeration Black’s claimed memory that
the meetings between Igoa and Mackron occurred on a “daily”
basis.) They happened so frequently in June 1995 alone that
Black complained to Mackron about her absences from the
cashier’s podium and the difficulties in covering for her during
her frequent parleys with Igoa. Not long after this, still in or
around June (the date Black finally settled on), Igoa called
Black and told him that Mackron was “helping us with the Un-
ion thing and she needs to go off the floor and meet with us,
[and that Black should] cover for her or find somebody that will
cover.” (Igoa’s summary denial of such an exchange was un-
convincing.)
In the light of all of the foregoing, I infer that there was far
more to the Igoa-Mackron relationship than either wanted to
admit. The exact nature and dimensions of the relationship can
only be matters for speculation, but it seems nearly obvious,
particularly in the light of Black’s credited testimony, that the
two did not meet frequently simply to review the “status” of the
RD petition, as distinguished from the status of the RD cam-
paign. And I deem it not merely speculative but probable on
this record that another and more important purpose and func-
tion of the meetings from the standpoint of both participants
was to share intelligence relating to the progress of the decerti-
fication campaign. Moreover, lest there be any doubt about the
existence of an ongoing and wholly conscious sense of alliance
between the Respondent’s top officials and Mackron, those
doubts must surely evaporate in the light of the tell-tale events
occurring on election day, discussed next.
3. The election day celebration
Here, I jump forward some 29 months, to October 1, 1997,
after the election results were out indicating that a majority of
employees had voted to decertify the Union: Late that after-
noon, Mackron and Ojeda joined a group of managers (Igoa
and General Manager Worcester among them) as the latter were
celebrating the Union’s election loss. Bartender Joseph Jara
witnessed the gathering and served drinks to the group. I credit
his essentially undisputed testimony about what transpired from
his vantage point, as follows:

I remember seeing all the management gather in the
patio by the lobby bar. And it was somewhat of a celebra-
tion gathering for the outcome of that election. It took—I
took my time to approach the table because I became busy
with other clients that approached the bar and they wanted
to get drinks. [Restaurant Manager] Johan Smit came to
the bar and said, Julio, we're waiting for you to come and
wait on us.
And I was frustrated and angry because I was expect-
ing him to help me since he was the manager on duty.
When I eventually, you know, took care of the customers,
I went outside and I asked them what they wanted to
drink.
Q. Okay. And who was it that was at this table?
A. Rafael Igoa, Mr. Worcester, Johan Smit, Darren
Moll [Regional Director of Restaurants]. I can’t remem-
ber the name of the controller, the manager of room ser-
vice. That’s probably the only ones I can recollect.
Q. Was Debbie Mackron there?
A. Debbie Mackron and Alicia Ojeda arrived later.
Q. All right. And did you hear any conversation when
they arrived?
A. I heard congratulations and I saw shaking hands.
Q. And did Mackron and Ojeda sit at the table with all
these managers?
A. Yes, and they had some drinks, yes.
Q. They did drink?
A. Yes.

Mackron’s own memory of the celebration differs from Jara’s
only as to inconsequential details, and she added significant
details of her own: She recalled that she was on duty and
learned of the celebration from Ojeda, and then went with
Ojeda to join the managers. (Seemingly at variance with Jara’s
memory, she recalls that the gathering was in some kind of
conference room adjacent to General Manager Worcester’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1222
office.) She agrees that “they” (the managers) were “celebrat-
ing” when she and Ojeda arrived, and it is clear that she and
Ojeda joined-in, for she elaborated, “[W]e were all very happy
to have won the vote,” and “[W]e were toasting and
cheer[ing].” She also recalled that “there was champagne in the
room,” even while professing not to recall whether it was
champagne that was being served-out during the “toasting.”
From Black (who did not attend the celebratory session), I
further find as follows: Later that afternoon or evening, Black,
regional director of Restaurants Moll, and Mackron were dis-
cussing the event. Mackron quoted Worcester as having made a
“champagne toast” to Mackron, in which he said, “[T]his
wouldn’t have been possible if it wasn’t for Deborah.” Black
reacted with some disbelief, and Mackron turned to Moll for
confirmation, saying, “Darren, didn’t it happen?” Moll said,
“Yes.” Moll, who was independently shown to have partici-
pated in the celebratory event, was certainly capable of making
a nonhearsay admission against the Respondent’s interest con-
cerning the event. Accordingly, I treat Moll’s affirmation of
Mackron’s story to Black as an admission by Moll that Worces-
ter did, indeed, propose a champagne toast to Mackron in the
quoted terms.50
4. Respective campaign roles of the three employees in
question; company knowledge
By all accounts, including her own, Mackron played the most
visible and aggressive ongoing role in promoting the Union’s
decertification throughout the pendency of the RD petition. Igoa
and Dunne admittedly knew that she played such an ongoing
leadership role. Igoa and other managers also clearly knew that
Tolentini had been the RD petition-filer, and also knew that
Mackron had been the moving force behind it. However, it ap-
pears that Tolentini’s most distinct role in the anti-union cam-
paign was to file and sign the RD petition, and that he played no
particularly visible or active ongoing campaign role thereafter.
(He so testified; the prosecuting parties made no attempt to show
otherwise; and prosecution witness Julio Valera affirmatively
testified that he never saw Tolentini engage in any ongoing anti-
union campaigning.)
As stated earlier, Ojeda signed the original showing-of-interest
petition when Mackron presented it to her, and Ojeda was picked
to be the Respondent’s election observer some 29 months later.
Further, Igoa admitted that Ojeda wouldn’t have been asked to be
the company’s observer if her opposition to representation by the
Union had not already been known to the company. If there is an
important controversy about where Ojeda stood in the Respon-
dent’s eyes, it concerns when company officials first became
aware that she wanted the Union out. (Igoa ultimately claimed, in
substance, that this management knowledge was not acquired
until some point after September 9, 1997, when the Regional
Director directed that an election be conducted on October 1.)
For reasons summarized below, I deem it probable on this record
that company officials knew from the start that Ojeda opposed
the Union.

50 In so finding, I also note that the Respondent did not invite Igoa to
testify about the celebration, and of course Worcester never made any
appearance in the trial, nor did any of the other manager-celebrants
named by witness Jara.
Before getting into the controversy any further, it’s worth re-
cording what is affirmatively known about Ojeda’s preelection
role in the decertification campaign: Ojeda was called adversely
during the Union’s side of the prosecution’s case-in-chief. She
broadly denied having actively campaigned among her fellow
workers to vote against the Union. But Ojeda generally appeared
to be making overly technical distinctions between “campaign-
ing” against the Union, on the one hand, and telling employees
how she personally “felt” about the decertification issue, on the
other. And she seemed to be referring to the entire preelection
period when she stated that she would tell other employees how
she felt “if they asked.” She cautiously acknowledged, moreover,
that she did some affirmative campaigning during the last 2
weeks before the election. Thus, she admittedly wore a hand-
made button on her work outfit during that period indicating her
antipathy to the Union (a button with word Union on it, but with
a diagonal slash overshadowing the word). Overall, Ojeda pre-
sented as a witness who had been well prepared for the questions
posed by counsel for both of the prosecuting parties. Moreover,
some of her assertions were so obviously designed to help the
Respondent’s case but at the same time so improbable as to pro-
vide ample basis for doubting her overall candor. (A good exam-
ple was her testimony that even though Igoa had asked—and she
had agreed—to serve as the Company’s observer in the election,
she didn’t think Igoa was aware of her antiunion stance when he
asked her to perform this service.)
Other employees called by the prosecuting parties confirmed
that Ojeda took an active and visible antiunion role in the final 2
weeks or so before the election. However, their credible ac-
counts, offered from different individual vantage points, harmo-
niously indicate that Ojeda was more active, aggressive, and
visible in her antiunion campaigning during this period than
Ojeda’s self-depiction suggested. Thus, cashier Elizibeth Fernan-
dez, who worked on the day shift with Ojeda in the final 3
months before the election, credibly testified that in September,
Ojeda emerged from Café Manager Brian Madlin’s office with a
number of antiunion buttons (the same kind as the one Ojeda
admittedly wore), and, with Madlin standing next to her, handed
out the buttons to a number of her coworkers in The Café. To
similar effect, but with different details in each case, see the ac-
counts of Grille bartender Julio Valera,51 and Café cashier Norma
Rodrigez.52
51 On examination by counsel for the General Counsel, Valera re-
called one instance in the final 2 weeks before the election when Ojeda,
in the presence of Café Manager Madlin and several other workers,
objected to the fact that the Union was sending organizers to the em-
ployees’ homes. He further testified as follows on examination by the
Union’s counsel:
Q. Okay. And how about Ojeda, did you hear any more com-
ments other than the ones you've already testified to from Ojeda?
A. No.
52 Examination by union counsel:
Q. Okay. Now, when you testified about comments that you
heard Alicia Ojeda make, you said that you thought you had heard
comments from her about the union some 20 or 30 times. Tell us
what kinds of comments that you heard from Alicia Ojeda on
these occasions?
MIRAMAR SHERATON HOTEL 1223
The prosecuting parties placed some importance on trying to
establish that Ojeda was not just one of many opposed to the
Union, but that she was akin to or next only to Mackron in
terms of her early visibility and the extent of her antiunion
campaign activity. Their emphasis on such matters was ulti-
mately aimed at providing a plausible (unlawful) motive for the
Respondent’s having picked Ojeda for special pay-raises
throughout the pendency of the RD petition, i.e., for explaining
why Ojeda would be seen in the Respondent’s eyes as having
unique importance to the antiunion campaign, and not just as
one more of many employees who wanted the Union out. While
the prosecuting parties’ emphasis on making a record to support
this specific motive theory is understandable, a number of re-
lated points deserve emphasis: First, as is evident from the ac-
counts of Valera and Rodrigez noted above, some prosecution
witnesses contradicted any suggestion that Ojeda was from the
start an active and visible antiunion campaigner. In addition,
although I generally discouraged the prosecuting parties from
merely proving antiunion activities engaged in by Ojeda (or by
anyone else) which were not likely to have been known to
company supervisors or managers, their lack of success in mak-
ing Ojeda out to be as early and as visible a campaigner against
the Union as Mackron cannot be fully explained away simply
as the result of my trial rulings rejecting their (shabbily conclu-
sionary and shifting) offers of proof concerning what witness
Carmen Medina might have to say on the subject. Thus, the
only offer of proof made in connection with Medina’s appear-
ance as the General Counsel’s witness during the prosecution
case-in-chief was not made by counsel for the General Counsel
(who never even asked Medina about Ojeda’s antiunion activi-
ties), but by counsel for the Union, and it was an especially
vague and uninspiring offer.53 The only other offers were made

A. She would just tell us that the union was no good. We
would get a lot better benefits through the hotel than having a un-
ion and that they just basically wanted our money too.
Q. And do you recall the time period during which Ojeda
made these comments?
A. This was in September of 1997.
Q. Were other employees around when she made these com-
ments to you?
A. Yes.
Q. And were any supervisors around when she made these
comments to you?
A. No.
53 Thus, after counsel for the General Counsel concluded her direct
examination of Medina without asking her about any activities by
Ojeda, counsel for the Union represented that Medina was prepared to
testify that,
the primary persons who objected to the Union were Debbie
Mackron and Alicia Ojeda. That Alicia was not as strongly anti-
union as Mackron and the comments that she made were not the
same sort as Mackron made in the sense of saying losers, and
thieves, etc, but she would say why, pay dues to the Union, do it
yourself. That Ojeda would make antiunion comments, a couple
of times a day but not everyday. That Alicia wore a Union button
that had been crossed out so that it was a nonunion button. And
that would end my offer of proof.
Although the offer as a whole was unacceptably conclusionary in na-
ture, I note specifically that it contained no representation as to the time
period Medina would supposedly be describing, and that there was
when Medina was brought back as the General Counsel’s wit-
ness at the “rebuttal” stage, and then, even while the offers
remained largely conclusionary, the more important reason for
rejecting the offers at that point was that the proffered testi-
mony of Medina did not, in fact, tend to “rebut” any evidence
or claims made during the Respondent’s presentation of its
defensive case, but merely amounted to an untimely attempt to
beef-up the prosecution case-in-chief.54 Moreover, had witness
Medina actually given testimony consistent with one or more of
the offers of proof, it was likely to have amounted in large part
to “opinion” testimony. In addition, even if (as was never clear
from the offers-of-proof) Medina had relevant firsthand knowl-
edge, her testimony would not necessarily have permitted a
finding that Ojeda played a uniquely visible or significant cam-
paign role at an early stage in the pendency of the RD petition.
Finally, as I further discuss below, this record provides an in-
dependent basis for concluding that Ojeda’s unique antiunion
importance in the Respondent’s eyes had less to do with the
extent or visibilty of her early campaign activities than it did
with other special features of her status.
Without regard to whether or not Ojeda was as visible and
active a campaigner as Mackron, or when she first became thus
visible, I think the credible record makes it probable that Igoa
and other top officials had early knowledge of Ojeda’s support
for the decertification movement. Listed next are the principal

never any doubt that Ojeda was a visible antiunion campaigner at least
during the final 2 weeks or so before the election.
54 This was the General Counsel’s offer of proof when Medina was
recalled for purported “rebuttal” testimony:
If permitted to testify on this subject, Carmen Medina would tes-
tify that at the time the petition was being circulated, the decerti-
fication petition, Alicia Ojeda told Carmen that [the] union only
wanted the dues of employees and that the hotel would provide
employees with whatever they needed. In addition, Ms. Medina
would testify that, beginning with the period during which the de-
certification petition was being circulated among employees until
the election itself, Alicia Ojeda, like Debby Mackron, repeatedly
made it clear to everyone, to employees, that she was against the
union. In addition, during the—during this period, Ms. Ojeda,
like Ms. Mackron, was extremely active in talking against the un-
ion and Alicia Ojeda was one of the first employees to put on an
anti-union button. Specifically, during the election campaign,
Ms. Ojeda told employees that the union was bad, greedy, and
stupid. This is my offer of proof.
Counsel for the Union then proposed to supplement the General
Counsel’s offer, as follows:
My offer of proof, in addition to that made by the General Coun-
sel, would be that the witness would testify, if she were permitted
to answer these questions, that during the summer of 1995 Alicia
Ojeda, Deborah Mackron and Art Tolentini took the lead in sign-
ing people up on the decertification petition. She would further
testify that on one occasion Alicia and Brian Madlin, while the
witness was in the room service area, encourage[d] employees to
vote against the union.
Particularly in connection with union counsel’s reference to a pur-
ported transaction involving Ojeda’s activity in the presence of Man-
ager Brian Madlin, I note first that that the proffered testimony clearly
introduced a “new” element, and that this testimony clearly would have
been receivable under my general ground rules if it had been sought to
be elicited when Medina was originally called during the prosecution
case-in-chief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1224
facts and considerations which, taken as an integrated whole,
add up in my view to proof by a preponderance that company
officials knew about Ojeda’s antiunion views from the start.
1. Ojeda’s having signed the original showing-of-interest pe-
tition was clearly known to both Mackron and Tolentini, be-
cause they brought the completed petition to the Regional Of-
fice to support the RD petition. Moreover, anyone who signed
the showing-of-interest petition after Ojeda did would be simi-
larly aware. Indeed, Ojeda had no difficulty affirming the truth
of union counsel’s suggestion that, “once a person signed [the
showing-of-interest] petition, it was pretty well known who was
on which side of the campaign.” And I have already inferred
for reasons stated earlier that Ojeda must have been one of the
early signers of the showing-of-interest petition. Accordingly,
her antiunion sentiments can be presumed to have been widely
known among the rather large group of employees who saw the
petition while it was in circulation.
2. Igoa and Mackron met frequently and privately in the af-
termath of the RD petition filing. They both had a common
interest in getting rid of the Union, and thus a reason to form an
alliance to help ensure that outcome. Igoa told Black that
Mackron was “helping” the Company. The most obvious way
that Mackron could “help” the Company (and advance her own
wish to get rid of the Union) would be to supply ongoing intel-
ligence about how many and which employees supported the
decertification effort, and how many and which did not. Mack-
ron may not have known the exact answer to the latter question,
but she surely had a pretty good handle on the former one. In-
deed, when it came to the cashiers she could confidently state
that all of them “carried the same amount of animosity . . .
towards the Union” as she did. It is probable, therefore, that she
would have revealed early on to Igoa that Ojeda was among the
original supporters of the decertification effort. And see, e.g.,
Dr. Frederick Davidowitz, 277 NLRB 1046, 1049 (1985).
3. As further discussed in succeeding sections, Ojeda, Mack-
ron, and Tolentini were clearly the common beneficiaries of
extraordinarily large and apparently unprecedented retropay
checks in connection with their merit raises in December 1995,
retropay amounts that the Respondent has not credibly ex-
plained. And the same adjectives and observations are just as
appropriately applied, if not more so, to the additional and sub-
stantially larger pay raises given to both Ojeda and Mackron
during the remaining course of the preelection period. It’s hard
to explain Ojeda’s inclusion in this select group except in terms
of her antiunion posture.
4. Igoa was impossibly vague, often self-contradictory, and
palpably uncomfortable and insincere when asked to answer the
related questions why Ojeda was picked to be the Company’s
observer, and how and when he and other company officials
first became aware of Ojeda’s antiunion stance. Pressed on the
latter point, he initially answered, “yeah” when Union counsel
asked him whether this occurred “a couple of months [or] three
months” after he first learned of Mackron’s activities. How-
ever, he quickly backpedaled from this affirmation, now saying
that he only learned of Ojeda’s stance in September 1997, at
about the same time that company officials decided to ask
Ojeda to be the Company’s observer. But he persistently and
studiedly “[did] not recall” when pressed to identify how, when
and from whom he had learned this. However, he admitted that
when he used this formulation, it wasn’t intended to be a denial
of any given suggestion, only uncertainty. Igoa had no diffi-
culty recalling distinctly how, when, and through whom he first
learned that Mackron was soliciting signatures to support an
RD petition. His studied vagueness when it came to similar
questions about Ojeda was, to say the least, unconvincing. He
was similarly vague, self-contradictory, and unconvincing
when pressed about the meeting where it was decided to ask
Ojeda to be the election observer: He first said that General
Manager Worcester and Food and Beverage Regional Director
Dunne were present. However, Dunne was no longer employed
at the hotel in September 1997, and Igoa, seemingly realizing
this, soon said he was not sure if Dunne was at this meeting.
The Respondent never called Worcester as a witness, and in the
circumstances, I infer that Worcester’s truthful answers to the
same questions would be unfavorable to the Respondent. More
than that, I infer from all of the foregoing that Igoa was clum-
sily trying to conceal an inconvenient truth—that he and other
company officials knew all along, probably from Mackron if
from no other source, that Ojeda was a strong supporter of the
movement to oust the Union.
Relatedly, responsible company officials had reason to be-
lieve that Ojeda would be an influential figure in shaping the
views of her fellow workers. Next to Mackron, she was the
most senior cashier in The Café, and, because she and Mackron
normally worked on different shifts, Ojeda would be the most
senior cashier working on her own shift. Moreover, Igoa and
Dunne admittedly regarded each as playing a “lead” role on
their respective shifts, and admittedly treated them as some-
thing of a matched pair, deserving of roughly equal hourly pay
at any given time. Accordingly, from the Respondent’s stand-
point, Ojeda’s importance in the antiunion campaign—and a
reason for favoring her with uniquely generous pay raises dur-
ing the campaign—could have had less to do with the degree
and visibility of her antiunion campaign activity throughout the
pendency of the RD petition than with her unique status as the
senior cashier on her shift, one who, if kept happy with her pay,
could be expected to play an especially influential role in get-
ting her coworkers to support the Union’s ouster.55
F. Mackron’s August 1995 Memo Requesting Pay Raises
for Cashiers
On or about August 9, 1995, Mackron presented a typed
memorandum bearing that date to Food and Beverage Regional

55 Mackron suggested another plausible set of reasons why Ojeda
might be seen as a uniquely influential figure in the decertification
drive, her Latina ethnicity and her fluency in Spanish in a bargaining
unit work force overwhelmingly made up of Spanish surnamed work-
ers. Thus, asked why she thought Ojeda, rather than herself, was picked
to be the Respondent’s election observer, Mackron stated, “I think it
was a Spanish thing. She knew who—you know, because we have a lot
of employees that speak Spanish, and I don’t.” Moreover, considering
that I have inferred that Mackron and Igoa were engaged in ongoing
information sharing and strategizing, I don’t think Mackron was merely
speculating when she ventured this suggestion, but was probably
reporting as opinion what Igoa had told her in fact. In any case, if
Mackron was speculating in this regard, I would regard it as a
particularly informed kind of speculation.
MIRAMAR SHERATON HOTEL 1225
Director Dunne. The memo, crisply professional in both its
appearance and its narrative style, was addressed to both Igoa
and Dunne. Its stated subject was “Job Responsibilities and
Wage Inequities.” Although it purported to be from the “Cash-
iers,” no one had signed it. In material part, this is what the
memo said:

The Cashiers of the Café and Room Service would like
to bring to your attention a situation in which we believe
there are inequities between job responsibilities and com-
pensation.
The Cashiers have the following job responsibilities
[listing nine enumerated elements of the cashier’s job,
starting with “Hostess” and ranging through various other
roles and responsibilities].

. . . .

To our knowledge, the Grille Hosts’ only job responsi-
bility is seating people with menus.
The Grille Hosts receive $8.50 per hour. The Cashiers
receive between $7.70 and $8.50 per hour and perform
more duties. It would seem that the position with the
greater job responsibilities is receiving lessor [sic] or at
best comparable compensation than the position with
fewer job responsibilities.

We request that you investigate this case of job and wage
inequity and take corrective actions. We believe that the
greater job responsibilities of the Cashier position deserve
recognition in the form of higher wage rates. The mini-
mum wage rate for a cashier should be $8.50 per hour with
more senior level Cashiers earning higher rates of com-
pensation based upon their knowledge and performance.
We further request that you evaluate each Cashier’s com-
pensation separately and adjust it accordingly.

Thank you for your consideration.

[no signature]

Mackron testified that she alone authored and typed out the
memo. Although I have doubts about this, and will continue to
wonder whether she and Igoa cooked it up together, I will as-
sume for all purposes that Mackron was, indeed, the sole author
and preparer of the memo.
When Mackron presented this memo, it had been approxi-
mately 20 months since she had last been considered for and
given a merit raise. Thus, in December 1993 she had received a
40-cent merit raise which had brought her up to $8.40 per hour.
Moreover, when Mackron presented this memo, the new union
contract had already been finalized and had begun to be imple-
mented. In Mackron’s case, this meant that she was entitled to
another 10-cent raise, retroactive to February 1, 1995, making
her effective pay rate between February and December 1995
$8.50 per hour. Moreover, when Mackron presented this memo
in August 1995, the only other change in her status as it had
existed since February 1995 was that by then Human Resources
Regional Director Igoa and Food and Beverage Regional Direc-
tor Dunne were both admittedly aware of her role as the “cata-
lyst” in the decertification drive.
As we shall see in the next section, about 4 months later, in
December 1995, the Respondent gave merit pay raises to three
of the cashiers which brought them up to the “minimum”
$8.50/hr. rate proposed in Mackron’s memo, and gave pay
raises to the two most “senior” cashiers (Mackron and Ojeda),
which brought them both up to $9/hr. In fact, the only cashiers
who did not receive merit raises in December 1995 were two
very recent hires, i.e., two who were not even on the payroll in
early August 1995, when Mackron presented her memo to
Dunne.
IV. DECEMBER 1995 MERIT RAISES AND RETROAC-
TIVE PAY
A. Introduction; General Setting as of December 1995
Here we confront the most remote of all the alleged viola-
tions, the ones first called into question by the mid-trial
amendments to the complaint. At issue are the following pay
raises and associated retroactive payments:

Tolentini
December 1, 1995: 75 cents hourly raise, plus $1282 ret-
roactive pay;
Mackron
December 1, 1995: 50 cents hourly raise, plus $823.63 ret-
roactive pay;
Ojeda
December 1, 1995: 50 cents hourly raise, plus $896 retro-
active pay.

As previously discussed, the complaint alleges and the General
Counsel maintains that the above merit raises and retropay-
ments had an unlawful purpose—to reward the three cashiers
for their antiunion activities and to encourage them to pursue
such activities. The Respondent denies that any such motiva-
tions tainted these raises and payments, and, primarily through
Igoa, it has explained these pay actions as having been based
exclusively on nondiscriminatory, “business” considerations.
The Respondent also asserts as an independent defense that
these pay actions are barred from prosecution by Section 10(b).
My findings below will bear on both the motive issue and the
10(b) issue.
It helps to recall with respect to both issues that by Decem-
ber 1995, the union contract (as embodied in R. Exh. 1) had
been in effect and under implementation for more than five
months. As found previously, the new agreement, once final-
ized in late June 1995, called for an immediate hourly pay raise,
to be made retroactively effective to February 1, 1995. Igoa
stated in response to a leading question by the Respondent’s
counsel that there was some delay in implementing this first
raise due under the contract. However, Igoa also testified that
all bargaining unit employees had received the contract-
required raises and retropay by December 1995, and he further
acknowledged that the December 1995 merit raises given to
Tolentini (75 cents), Mackron (50 cents), and Ojeda (50 cents)
were conferred on top of all other raises and retroactive pay
those employees had already received or were owed under the
union contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1226
1. What the Union knew all along
I begin by revisiting some matters about which I made find-
ings in my original 10(b) decision: By mid-February 1996, the
Respondent had furnished the Union with two, successive com-
pilations of bargaining unit employee wage data, each furnished
in response to the Union’s written request for such information.
One compilation (Jt. Exh. 2) was effectively a snapshot show-
ing each employee’s hourly pay rate as of on or shortly before
November 1, 1995, when the Respondent mailed the first com-
pilation to the Union. The other (R. Exh. 3) was a similar snap-
shot depiction of each employee’s hourly rate as of about 3-1/2
months later, i.e., on or shortly before February 14, 1996, the
date the Respondent mailed the second compilation to the Un-
ion.
Kurt Petersen was the union agent who reviewed and com-
pared these successively furnished wage snapshots. He admit-
tedly believed based on various reports that Tolentini, Mack-
ron, and Ojeda were key actors in the decertification move-
ment. For this reason he had paid special attention to the pay
data relating to these employees. These data enabled him to
determine that each had received a “merit” raise in the amounts
previously indicated (75 cents for Tolentini; 50 cents for Mack-
ron, and 50 cents for Ojeda).56 He admittedly concluded, how-
ever, that the amounts of the merit raises to the three antiunion
workers did not suggest that they had been the beneficiaries of
any particular wage-favoritism. In reaching this judgment, Pe-
tersen admittedly had similarly reviewed and compared the
successive wage-data snapshots to ascertain whether other bar-
gaining unit employees had received merit raises during the
November 1–February 14 period in question, and if so, in what
amounts. He was able to discern that a number of other em-
ployees had received merit raises in that period, and he deter-
mined that the amounts of those raises were not significantly
different from the amounts received by Tolentini, Mackron, or
Ojeda.
In fact, wage data in the Union’s hands by mid-February
1996 (i.e., Jt. Exh. 2 and R. Exh. 3) showed that two other cash-
iers besides Tolentini, Mackron, and Ojeda had also recently
gotten merit raises. These were Karen Leung (75 cents) and
Carmen (Rodas) Medina (40 cents). Moreover, the same data
indicated that at least three cooks were given merit raises in the
same period, as follows: Alejo Guzman (60 cents), Enrique
Loza (90 cents), and Rolando Bautista (70 cents).57 In fact, in
and after late February 1996, there were only two things of any
current significance that the Union did not know about merit
raises conferred in the preceding 3-1/2 months: The Union did
not know the exact “effective date” of the recent merit raises,

56 In making comparisons, Petersen had accounted for “contract”
raises which had also kicked in by then, and thus he was able to detect
how much of any indicated increase in pay was attributable to a “merit”
raise.
57 In fact, a comparison of Jt. Exh. 2 with R. Exh. 3 shows in cook
Bautista’s case a total $1 increase. However U. Exh. 25, compiled in
1999 from different records, indicates that only 70 cents of that total
was a merit raise, and I rely on the latter exhibit for this number. How-
ever, with respect to all other employees previously named, the merit
raise data on U. Exh. 25 tallies with the wage-increase data extractable
from comparing Jt. Exh. 2 and R. Exh. 3.
and the Union did not know that the particular merit raises to
Tolentini, Mackron, and Ojeda had been given an unusually
lengthy retroactive effect. That is, the Union did not know that
the Respondent had not merely made the raises “effective “ as
of the end of the immediately preceding pay period (which
would yield only a trifling amount of “retropay”), but had actu-
ally made them effective on dates 10–11 months earlier, with
the result that each of the three had received a large, one-time
retropaycheck. I will sometimes refer below to this particular
phenomenon as giving “super-retroactive effect” to the pay
raises, and I will usually refer to the one-time retropayments in
question as “super retropay.”
2. The ER-21 forms revealing the super retropay to Tolentini,
Mackron, and Ojeda
Whenever the Respondent takes action causing a change in
an employee’s pay or job status, the Company’s business rou-
tine is to record the action, together with related details, on a
“Personnel Transaction Form,” more commonly called an “ER-
21” form. One copy of the ER-21 goes into the employee’s
personnel file, which also contains copies of supervisory
evaluations and other typical papers. When a merit raise is the
subject of an ER-21, the business routine—and the form it-
self—requires the approval signatures of Igoa, General Man-
ager Worcester, and the Regional Director of the Department in
question (Dunne, in the case of merit raises for food and bever-
age employees).
On December 6, 1995, Igoa signed ER-21 forms for Tolen-
tini (GC Exh. 15), Mackron (U. Exh. 4), and Ojeda (U. Exh.
12) reflecting that he had authorized merit raises for the three
employees. A box on the form called for the “effective date [of]
this action.” In all three cases the date “12–1–95” was typed in
this box. However, this was wholly misleading, for in another,
unlabeled box, there appeared the handwritten word “retro”
adjacent to a handwritten dollar amount ($1282.80 on Tolen-
tini’s form, $822.63 on Mackron’s, and $896 on Ojeda’s)
which was far too large to be consistent with an “effective date”
of December 1, 1995.
As found above, the Union had been on notice and in fact
aware since late February 1996 that these merit raises had been
given, and had likewise been aware that two other cashiers,
Leung and Medina, had also received recent merit raises, as had
at least three cooks, Guzman, Bautista, and Loza. However, the
Union was not actually in possession of ER-21s and other per-
sonnel-file paperwork revealing the actual super retropay
amounts given in connection with these raises until on and after
March 26, 1999, when the Respondent, complying with the
prosecuting parties’ discovery-at-trial subpoenas, gave both the
Union and the General Counsel full access to the personnel
files of all bargaining unit employees employed in and after
January 1994. These records were brought into the Regional
Office on March 26, and Petersen and counsel for the General
Counsel Cronin-Oizumi combed through the records for several
days. Petersen himself copied upwards of 500 documents from
those files, such as ER-21s and employee evaluation forms. (He
actually made three copies of each such document, one for
himself, one for the General Counsel, and one for the Respon-
dent.) Petersen later used the information from the copied re-
cords to prepare a detailed, multipage chart, received into evi-
MIRAMAR SHERATON HOTEL 1227
dence as Union Exhibit 25, which summarizes undisputed in-
formation gleaned from the ER-21s and other records. How-
ever, Petersen had already prepared Union Exhibit 25 before he
noticed that the “retro” payments to Tolentini, Mackron, and
Ojeda did not correspond to the “effective date” recorded on
their ER-21s. Consequently, that exhibit did not include any
such retroactive pay data—only the amounts of the merit raises
which the three employees (and others) began receiving in De-
cember 1995.
It was only through a regrettably belated reinspection of the
ER-21s for Tolentini, Mackron, and Ojeda that the Union—
and, in turn, the General Counsel—became aware that there
existed a rather significant discrepancy between the December
1 “effective date” as recorded on the ER-21 form and the actual
amount given to each employee in the form of “retropay.”
Again, the discrepancy lay in the fact that the retropay amounts
that Igoa authorized on December 6 to be given to the three
employees “effective’ December 1 were each way too large to
be explainable as merely reflecting a 5-day retroactive catchup
payment. Igoa acknowledged this when questioned from the
bench on the subject on May 19, 1999. Indeed, he implicitly
conceded that the merit raises for the three employees had not
been made “effective” on December 1, 1995, no matter what
the form said. Nevertheless, when first examined on May 19,
Igoa was at a loss to explain these discrepancies.
When the trial resumed more than a month later (i.e., in the
week of June 21, 1999, following the May 21 amendments to
the complaint), Igoa now had explanations for how these retro
amounts had been calculated. He confirmed that the merit
raises for the three employees had not been made “effective” on
December 1, 1995, but had actually been made retroactively
effective to a far earlier date (in Mackron’s case a full 11
months earlier, back to January 1, 1995; in Tolentini’s and
Ojeda’s cases, a full 10 months earlier, back to February 1,
1995). He also now had an explanation for why the merit raises
had been given such lengthy retroactive effect. His broad an-
swer to the Why question was that the merit raises would have
been given to these employees on or before the earlier effective
dates had it not been for some ongoing ambiguity in the Un-
ion’s position (or a disagreement between the parties—it’s not
clear which) as to how the negotiated raises under the union
contract might be applied to employees who, like the three in
question, were already earning more than “union scale.”
3. Merit raises given to other food and beverage cashiers
Other details surrounding the December 1995 merit raises to
the three allegedly favored workers also emerged as a result of
the subpoena-discovery process. The best way to present all
related details now of record is to recapitulate them in a chart,
which I have done below. This chart captures what the undis-
puted record affirmatively shows about what happened to all
seven of the food and beverage cashiers working as of Decem-
ber 1995. The data pertaining to Leung, Rodrigez and Butler
come from Union Exhibit 25.58 The data pertaining to the other
four cashiers come from their respective ER-21s, and are har-

58 The relevant ER-21s for Leung, Rodrigez, and Butler were not
tendered into evidence, leaving some gaps in information.
monious with data on Union Exhibit 25. Cashiers are listed in
order of seniority or “Sheraton Service Date.” All listed raises
were formally made “effective” December 1. As indicated on
the chart, a significant question exists as to whether Leung
received super retropay, and I will revisit that question in the
next subsection.

Name Hire Date Raise Amt. New Rate Super retropay

Mackron 7/21/92 .50 $ 9.00 $ 823.63
Ojeda 8/21/92 .50 9.00 896.00
Medina 12/9/92 .40 8.50 None
Leung 9/14/94 .75 8.50 [?]
Tolentini 9/26/94 .75 8.50 1282.80
Rodrigez 8/14/95 None [no info] None
Butler 10/23/95 None [no info] None

4. Did anyone else get super retropay in December 1995?
As related above, when Igoa returned to the witness stand on
June 23, 1999, he was able to recall particulars concerning the
super retropayments to Tolentini, Mackron, and Ojeda, which
had eluded him when first examined about these matters on
May 19. In the meantime, as he explained, he had discovered
two company records (R. Exhs. 18 and 19) indicating that the
Respondent had given super retroactive effect to the merit
raises received by a total of eight bargaining unit employees,
four cashiers and four cooks. Respondent’s Exhibit 18 is cap-
tioned “Retro pay,” and it contains a date stamp of “Dec 11
1995.” It amounts to a list purporting to show that four cashiers,
Leung, Tolentini, Ojeda, and Mackron (listed in that order),
each received super retropay in December 1995, and how their
retro pay amounts were calculated in each case. (In Leung’s
case, it indicates that her retro pay was the largest of the four
amounts, $1370.62.) Although resembling a worksheet in lay-
out, it contains no handwriting, only typed entries. Respon-
dent’s Exhibit 19 is a counterpart document listing cooks who
also supposedly received super retro pay in December 1995. It
bears the same caption and date stamp, and follows the same
format as Respondent’s Exhibit 18. It was Respondent’s Ex-
hibit 18, said Igoa, which caused him to remember that in De-
cember 1995 he had also authorized a super retropayment to
cashier Karen Leung, who was already known to have received
a 75-cent merit raise at that time. Not only that, based on Re-
spondent’s Exhibit 19, Igoa now recalled that he had also au-
thorized super retropayments to be made to four cooks at that
time. These were Rolando Bautista (already known to have
received a 70-cent merit raise); Enrique Loza (already known to
have received a 90-cent merit raise) plus Charlotta Linde and
Jose Luis Orosco (two former employees who had not been
accounted for in U. Exh. 25 because that chart only recorded
data associated with employees who were still employed at the
hotel in April–May 1999, when Petersen put the chart to-
gether.59) Both exhibits were received into evidence without
59 While Linde’s name appears on Jt. Exh. 2, the Respondent’s No-
vember 1, 1995 wage-data submission to the Union, her name does not
appear on R. Exh. 3, the counterpart submission furnished on February
14, 1996. This is a good indication that she left sometime in between
the two dates.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1228
objection after Igoa somewhat summarily described their
provenance.
The Respondent relies on these newly-discovered records—
the same ones said to have awakened Igoa’s dormant memo-
ries—when it asserts that Tolentini, Mackron, and Ojeda were
only three out of a total of eight bargaining unit workers whose
merit raises in December 1995 were given super-retroactive
effect. But the reliability of these exhibits as proof of the facts
they purport to record is in serious doubt. I find for the follow-
ing reasons that the records are unreliable for that purpose, and
so, too, are Igoa’s belatedly recovered memories that employ-
ees other than Tolentini, Mackron, and Ojeda received super
retropayments.
One set of reliability problems has to do with the unusual
provenance and the unusually belated discovery of the two
“Retropay” lists in question. Igoa stated that these lists did not
come from the employees’ personnel files or from other records
maintained at the hotel, but from the Respondent’s records-
storage facility in Encino. Igoa said that the two lists were dis-
covered during the 1-month trial recess between May 21 and
June 21, 1999. He implied that he had forgotten about their
existence until they are-emerged from the Encino facility. But
he did not explain the methodology used to recover the docu-
ments, nor did he indicate who did the searching yielding their
convenient discovery. Thus, we do not know whether, for ex-
ample, he called for a truckload of old records to be shipped to
the hotel and then to be pored through by himself or others until
the fortuitous discovery of the lists; or whether, instead, he had
a memory that these retro pay lists existed, and thus was able to
make a more pinpointed search. We do know, however, that in
a recent certified letter to the Union’s Petersen dated February
12, 1999 (U. Exh. 26), responding to the Union’s prior informa-
tion request, Igoa had effectively denied the existence of any
such lists. Thus, he stated in pertinent part as follows:

No list exists of all employees who have received any
merit pay increase or decrease. Information regarding
merit pay increases are [sic] contained in [an] employee’s
personnel file. Arrangements could be made to have their
files reviewed.

Moreover, the late discovered exhibits in question would have
been responsive to, but had not been produced in response to,
the trial subpoenas which had yielded the production in late
March 1999 of the “personnel files,” supposedly the only re-
positories of records showing merit pay raises. Accordingly, if
the exhibits in question, amounting to lists of employees who
had received merit raises in December 1995, were indeed due-
course business records, in existence since December 1995, I
wonder why they weren’t discovered in the course of respond-
ing to the Union’s prior information requests, or to the Union’s
and the General Counsel’s trial subpoenas.
Another problem has to do with the irregular appearance of
the exhibits. The data on Respondent’s Exhibit 18 purporting to
show retropay calculations for Leung are superimposed over
what appears to be a preprinted “Miramar Sheraton” logo and
letterhead. (Only the names of and calculations associated with
Tolentini, Ojeda, and Mackron appear in the space beneath the
logo and letterhead.) A similar irregularity appears on the Re-
spondent’s Exhibit 19 listing for the cooks. (There, the data for
Charlotta Linde is superimposed over the logo and letterhead.)
The Respondent made no attempt to explain these irregularities,
and it is difficult to envision how these superimpositions could
happen in the ordinary course of preparing a genuine business
record.
Another problem is that I would have to rely on Igoa’s word
alone to explain the circumstances under which the exhibits
were prepared, and by whom. Igoa stated perfunctorily that
they had been originally prepared in December 1995 by the
Respondent’s then-“paymaster,” Marisa Cruz, pursuant to his
own instructions. (Cruz no longer worked for the Respondent
when this case was tried, and no one called her to the witness
stand.) But there is nothing on the face of the exhibits inde-
pendently indicating that Cruz was the preparer. In fact, there is
nothing on the face of the exhibits indicating that the retropay-
ments had actually been paid to the employees listed thereon.
Thus, to find that listed employees (other than Tolentini, Mack-
ron, and Ojeda) received super retropay, I would again be re-
quired to take Igoa’s word for it.
But why should I take Igoa’s word for it, based on these late
discovered records, that super retropayments had been given to
five bargaining unit employees other than Tolentini, Mackron,
and Ojeda? If this were true then surely there must have existed
some other record that would have corroborated this. One ob-
vious source of corroboration would be the ER-21s for these
other five employees, because we know independently that the
ER-21s for Tolentini, Mackron, and Ojeda, did contain affirma-
tive entries confirming that they had received the super retro
payment amounts set forth on Respondent’s Exhibit 18. An-
other likely source would be payroll check stubs, or their
printed-out electronic database equivalents, reflecting the issu-
ance of one-time retropaychecks to Leung and the four cooks in
the amounts stated on Respondent’s Exhibits 18 and 19. Never-
theless, no such corroborative records were tendered by the
Respondent.
Relatedly, and just as telling in my estimation, is that Igoa
admitted that the ER-21s for the four cooks listed on Respon-
dent’s Exhibit 19 did not contain any indication that the merit
raises for those cooks had been given any super retroactive
effect. In fact, the applicable ER-21s for two of those cooks,
Loza and Bautista, were tendered into evidence by the Union,60
and they contain no indication of any super retroactivity. And it
was only after these union exhibits had been received that Igoa
conceded that the ER-21s for the other two cooks listed on
Respondent’s Exhibit 19 were likewise devoid of any indica-
tion that their merit raises had been given super-retroactive
effect. These circumstances raise grave doubts about the reli-
ability of Respondent’s Exhibit 19 as a basis for asserting that
any cooks received super retropay in December 1995. Indeed,
Respondent’s Exhibit 19, amounts to “weak” evidence on the
point as the D.C. Circuit used that expression in its discussion
of the adverse inference rule in the Gyrodyne case, supra, 459

60 For Loza, see U. Exhs. 27, 28, and 29. (Chronologically, 29 was in
fact, the first in the series of three ER-21s associated with Loza’s De-
cember 1995 raises to have been prepared; 28 was the second, and 27
was the third in the chronology.) For Bautista, see U. Exh. 30.
MIRAMAR SHERATON HOTEL 1229
F.2d at 1336–1338. And the fact that the Respondent did not
introduce any stronger evidence of the purported super retro
payments to the four listed cooks (such as confirming ER-21s
or other payroll records) can arguably be taken as an indication
that the purported facts indicated on Respondent’s Exhibit 19
are not just of dubious reliability, but are untrue. Gyrodyne,
supra. But the adverse inference issue need not be reached in
this instance because Igoa affirmatively admitted that the ER-
21s for the four cooks listed on Respondent’s Exhibit 19 did not
corroborate the latter exhibit. In any case, considering all of the
foregoing, I find that the Respondent has not reliably estab-
lished that the cooks listed on Respondent’s Exhibit 19 were
given super retropay in connection with their merit raises in
December 1995.
Similar, but not identical considerations cause me to con-
clude that Respondent’s Exhibit 18, purportedly showing that
the merit raise undisputedly given to cashier Leung was given
super retroactive effect, cannot be relied on for such a finding.
In that case, however, unlike that of the four cooks, the record
is silent about what Leung’s ER-21 (indicating her December
1995 merit raise) does or does not show concerning the super
retroactivity issue. This is because no party introduced Leung’s
ER-21, even though Leung’s ER-21 was equally available to all
parties before Igoa’s June 23 reappearance as the Respondent’s
witness, and, indeed, had been produced for a second time to
the Union by the Respondent on the morning preceding Igoa’s
June 23 reappearance. Thus, it is clear from colloquy among
counsel in the May 21 trial session, and from Petersen’s testi-
mony the same day, that the General Counsel and the Union
had both been given access on and after March 26, 1999, to the
ER-21s for all of the food and beverage cashiers. Moreover,
preceding the June 21 trial resumption, the Union had issued a
new subpoena to the Respondent and the Respondent had peti-
tioned to revoke this new subpoena. (See ALJ Exh. 15.) This
new subpoena sought, inter alia, the production for the second
time of certain records, which the Respondent had previously
disclosed pursuant to earlier subpoenas, including “personnel
files of Art Tolentini and all other food and beverage cashiers
employed at any time from February 1, 1995 through August
31, 1997.” (During on-the-record argument in the June 21 ses-
sion concerning the petition to revoke, union counsel stated that
his principal purpose in re-subpoenaing the personnel files for
all of the food and beverage cashiers was to have them avail-
able for cross-examination of Igoa, when, as expected, the Re-
spondent would call Igoa to explain, among other things, the
super retro payments to Tolentini, Mackron, and Ojeda.) I de-
nied the Respondent’s petition to revoke and the Respondent
then agreed to bring the re-subpoenaed personnel files to the
hearing site the next morning, June 22. There is no doubt that
the records were produced the next morning; indeed, at the
close of proceedings on June 21, I had directed a delay in the
opening of the June 22 session to enable the prosecuting parties
to study the resubpoenaed records. Accordingly, lacking any
other indications to the contrary, I must assume that Leung’s
ER-21 was not only available to the Respondent for purposes of
possibly corroborating Respondent’s Exhibit 18, but that it was
also readily available to the Union and the General Counsel for
purposes of possibly impeaching Respondent’s Exhibit 18.
Although it’s mildly frustrating to be the only trial partici-
pant who does not know what Leung’s ER-21 does or does not
show with respect to the super retroquestion, I don’t think I
need to reopen the record to get an answer. However, as I dis-
cuss next, neither will adverse inferences get me very far in
answering the question. The question more squarely presented
in this instance than previously is this: Should any particular
party suffer an adverse inference for failing to introduce into
evidence a document, Leung’s ER-21, which was in the hearing
room and clearly available to all parties? The answer is surely
debatable. On the one hand, the Respondent’s failure to pro-
duce a document having a potential for corroborating the claim
that Leung received super retropay might by itself warrant the
inference that the document would contradict—or at least fail to
corroborate—the claim. On the other hand, Leung’s ER-21, or
a copy of it, was also fully available to—and in fact in the pos-
session of—the Union and the General Counsel, both of which
parties had an obvious interest in making the contents of that
ER-21 a matter of record if its contents contradicted or failed to
corroborate the same claim. (Indeed, the Union had done just
that when it came to assertions that super retroactive effect had
also been given to the merit raises received by the four cooks
listed on R. Exh. 19.) However, considering that the Board’s
general policy in “equally-available” witness situations is that
neither party should suffer an adverse inference for failure to
call the “missing” witness.61 I am inclined to a similar approach
in this equally available document situation. Thus, the only
inference I am willing to draw in this instance is that Leung’s
ER-21, if disclosed, would not have materially enhanced the
position of any party nor undermined the position of any party.
Where does this leave us in terms of the underlying question
whether Leung did or did not receive super retropay? I think it
leaves us with only one item of evidence, Respondent’s Exhibit
18, as a possible basis for finding that Leung was the benefici-
ary of a super retropayment. I judge that Respondent’s Exhibit
18, standing alone, is unreliable for that purpose. This judgment
is based on all the other considerations discussed above which
call into question the regularity and reliability of both Respon-
dent’s Exhibits 18 and 19.
The question I set out to answer in this subsection was, did
anyone else get super retropay in December 1995? Considering
all of the foregoing, my answer is no. Put differently, I find that
while Tolentini, Mackron, and Ojeda received super retropay-
ments in connection with their December 1995 merit raises,
there is no reliable evidence that the merit raises given to cash-
ier Leung and to cooks Guzman, Lopez, and Bautista in De-
cember 1995 were similarly made super retroactive.
D. Analyses, Supplemental Findings, and Conclusions
1. Expanded and updated chart
With many explanations behind me, most of my previous
findings may now be usefully recapitulated in the form of an
expanded chart, set forth below. This one shows a new entry for
Leung, and this one adds to the list the three cooks who also
were shown to have received merit raises at the same time.
(Data concerning the cooks is derived from U. Exh. 25.)

61 International Automated Machines, supra, 285 NLRB at 1123.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230

Name Hire Date Raise Amt. New Rate Super retropay
Cashiers
Mackron 7/21/92 .50 $ 9.00 $ 823.63
Ojeda 8/21/92 .50 9.00 896.00
Medina 12/9/92 .40 8.50 None
Leung 9/14/94 .75 8.50 [No reliable proof]
Tolentini 9/26/94 .75 8.50 1282.80
Rodrigez 8/14/95 None [no info] None
Butler 10/23/95 None [no info] None
Cooks
Guzman 1/18/80 .60 $12.80 [No reliable proof]
Loza 12/3/92 .90 11.50 [No reliable proof]
Bautista 6/2/93 .70 11.00 [No reliable proof]

The complaint does not merely attack the fact that the Re-
spondent gave super retroactive effect to Tolentini’s, Mack-
ron’s, and Ojeda’s merit raises. It also alleges that the Respon-
dent acted unlawfully simply by giving merit raises to the three
cashiers. I judge that these two phenomena must be considered
as severable for purposes of both a merits analysis and a 10(b)
analysis. As I discuss further below, it is relatively easy to un-
derstand in the light of the charted evidence why the General
Counsel maintains that the Respondent violated the Act when it
gave super retropay to the three employees in connection with
their merit raises. What is far more difficult to understand in the
light of the foregoing findings is how the General Counsel can
maintain that the Respondent also violated the Act when it gave
the merit raises themselves to the three allegedly favored work-
ers.62
2. The merit pay raises themselves
a. Statutory merits
To find that the Respondent acted unlawfully when it gave
merit raises to Tolentini, Mackron, and Ojeda in December
1995 would require a threshold finding that the three employees
were “favored” by the action. In the context of this prosecution,
I deem it a largely dispositive fact that Tolentini, Mackron, and
Ojeda were not the only employees to have gotten a merit raise
in December 1995; in fact, they were not even the only cashiers
to have gotten a merit raise. Rather, two other cashiers, Medina
and Leung, also received such raises, in amounts not radically
different from those received by the three cashiers alleged to
have been the targets of discriminatory “favoritism.” Not only
that, at least three cooks also received merit raises in compara-
bly large amounts at the same time. Accordingly, the merit
raises handed out in December 1995 were not given uniquely to
the three workers in question, but to a total of eight workers, no
others of whom are alleged to have been the objects of dis-
criminatory favoritism. Neither the General Counsel nor the
Union has tried on brief to reconcile these plainly inconvenient
facts with the theory underlying this prosecution, and to me
their silence speaks volumes. It is virtually impossible to recon-
cile these facts with the prosecution theory. Accordingly, I

62 One reason the General Counsel’s position on this matter is diffi-
cult to understand is that counsel for the General Counsel has not ac-
knowledged the issue on brief, much less declared a position.
would dismiss the complaint insofar as it alleges that the merit
raises themselves were unlawfully conferred.
It might be tempting—on the basis of a record made in the
course of litigating a narrower and different theory—for the
General Counsel and/or the Union now to advance a new the-
ory of violation according to which the merit raises to all eight
recipients (or at least to cashiers other than the three in ques-
tion) were unlawful. However, I have detected no such argu-
ment from either of the prosecuting parties, and even if they
had made one, I would reject it for the following reasons: First,
while there remain blurry edges to the theory of prosecution,
the General Counsel never alleged or argued anything resem-
bling such a broadened and shifted claim. Nor was this from
want of evidence: The Union had known about or been on no-
tice of the existence of all December 1995 merit raises since
late February 1996, and this information was clearly available
to the General Counsel during the precomplaint investigation
into the Union’s triggering charge, the “Fourth Amended
Charge” of December 3, 1997. In fact, additional evidence of
the same merit raises (the ER-21s in employees’ personnel
files) had been made available to the prosecuting parties in and
after late March 1999, as part of the trial subpoena-compliance
process. Yet even well after this, when the General Counsel
moved on May 21, 1999, to amend the complaint to attack the
December 1995 raises and retropay to Mackron and Ojeda (and
Tolentini, as well), there was no hint of a claim that the merit
raises to the other five workers were in any way unlawful. In
sum, if any such claim were advanced now, it would deserve
dismissal because it would necessarily be a claim as to which
the Respondent had no notice, and therefore a claim, which
could not be said to have been either “fairly” or “fully” liti-
gated.
b. Impact of Section 10(b)
The same long-known facts just cited as evidence that the
prosecution never intended to or did call all of the December
1995 merit raises into question are facts, which would inde-
pendently damn any such contention to dismissal on 10(b)
grounds. The Union knew all along that all of these merit raises
had been handed out sometime between November 1, 1995, and
February 14, 1996, but it did not file any charge calling them
into question—at least no timely charge calling them into ques-
tion. (In fact, the Union much later came to believe that cooks
had also been the beneficiaries of unlawful raises; and filed a
charge to that effect. But this charge was later dismissed, and it
is not at all clear in the first place that this charge was linked to
the December 1995 merit raises given to cooks Guzman
Bautista, and Lopez.63)
63 These are the details: On November 16, 1998 (roughly a year after
filing the triggering charge in this case, the fourth amended charge in
Case 31–CA–22971), Petersen filed a new charge, docketed as Case
31–CA–23610 (R. Exh. 12), alleging in material part that the Respon-
dent had “provid[ed] preferential treatment and raises to employees
[admittedly intended to refer to certain cooks] to assure that they re-
main against the union or to attempt to persuade them to be anti-union.”
The Regional Director dismissed this charge on December 29, 1998,
while this trial was in recess. R. Exh. 12-A. The Union then appealed,
and the office of the General Counsel denied this appeal on February
MIRAMAR SHERATON HOTEL 1231
Returning to what the complaint clearly does allege, these
same facts and circumstances are also 10(b) dispositive of the
amended complaint insofar as it attacks the merit raises to To-
lentini, Mackron, and Ojeda. Where the fact of the merit raises
to the three had been known to the Union since late February
1996, and had never been the subject of a charge, Section 10(b)
clearly bars the General Counsel’s attempt, by the device of the
May 21, 1999 amendments to the complaint, to resurrect these
raises as prosecutable violations.
3. The super retropayments
The lengthy retroactive effect given to Tolentini’s, Mack-
ron’s, and Ojeda’s merit raises present quite different questions,
both on the merits and in terms of the impact of Section 10(b).
a. Statutory merits
The substantial, one-time retropayments were given to three
employees (and only to those three employees, so far as this
record reliably shows) who I have found were known or be-
lieved by Igoa and other top company managers to be important
figures in the decertification movement. This apparently unique
favoritism when it came to super retropay, considered against
the background of antiunion animus, was enough to have satis-
fied the General Counsel’s Wright Line burden of showing
unlawfully motivated discrimination. In addition, as I discuss
below, the Respondent’s proof, offered primarily through Igoa,
fell far short of satisfying the Respondent’s own Wright Line
burden of “demonstrating” that the three employees would have
been given the same treatment even absent their antiunion
views or activities. Indeed, as should soon become evident,
Igoa’s attempts to explain the super retropayments to the three
employees in nondiscriminatory terms were themselves so la-
mentably confused, inconsistent, uncorroborated, and improb-
able in the light of other facts as to constitute yet additional,
affirmative evidence of unlawful motivation. Shattuck Denn
Mining Corp., supra.
At the risk of imparting a greater coherency and consistency
to Igoa’s explanations than Igoa himself managed to do, I will
here attempt to tease out the principal elements lying within his
meandering and confused narrations: First, he broadly asserted
that the super retropayments to the three cashiers were intended
to make up for the Respondent’s failure to give them merit
raises far earlier. Relatedly, he broadly asserted that the only
reason the Respondent did not give them merit raises far earlier
was because there had been some ongoing ambiguity in the
Union’s position (or perhaps an ongoing disagreement between
the parties) as to how much the cashiers were entitled to in
“contract” raises under the new labor agreement as “finalized”
in late June 1995. More specifically still, Igoa’s explanations
incorporated the following supplemental claims: (1) Ever since
the beginning of “negotiations” with the Union for a new con-
tract in or before November 1994, the Respondent had been
unsure whether the Union expected the “30-cent” raise to apply

11, 1999. Id. In fact, it appears from the letter from the office of the
General Counsel denying the appeal that raises to “two employees”
(cooks, as Petersen acknowledged) were at issue. What remains wholly
uncertain is whether the raises in question were the December 1995
raises, or raises conferred at some later point.
to the already above-“scale” cashiers (and others), or instead,
expected only the “10-cent” raise to apply to these already
above-“scale” employees. (2) As a consequence, throughout the
13 months or so until December 1995, the Respondent (Igoa,
for practical purposes) had made it a policy not to evaluate or
consider any workers for merit raises, and in fact had given out
no merit raises during that period. (3) But for this unusual state
of affairs, the three employees in question would have received
merit raises by no later than February 1, 1995. Why that date?
Because, said Igoa, it was likewise the retroactively effective
date for the first of the nonmerit raises due under the new con-
tract. (Igoa never explained exactly why he thought the two
phenomena should have some correspondence. To me, the pair-
ing seems strained, at best, and probably arbitrary:64) In any
case, (4) when Igoa calculated the retropay amounts due to
Tolentini and Ojeda, February 1, 1995, became the “effective
date.” Then why the selection of January 1, 1995, as the “effec-
tive date” for calculating Mackron’s retropayment? Because,
according to Igoa, (5) Mackron was a special case. She had
gone for more than a year without any merit raise, and, but for
the confusion, probably would have been evaluated and given a
merit raise sometime in November–December 1994. Why No-
vember–December 1994? Because (6) she had last been evalu-
ated and given a merit raise in December 1993, and (7) the
policy and practice was to wait a year from the last merit raise
before considering the employee for another one. Then why not
make the December 1994 date the retroactively effective date
for purposes of computing Mackron’s retropay? Because, in
Igoa’s words, (8) “We just decided, well, we will give it as [of]
1/1/95. We did not want to go beyond 1/1/95.”
When Igoa used the pronoun “we,” he was apparently refer-
ring to himself and Food and Beverage Regional Director
Dunne, who, according to Igoa, was intimately involved both in
proposing the raises to the three in question and in determining
how much retroactive effect to give to them. Significantly,
however, Dunne stated that he had nothing at all to do with the
retropay decisions and thus had no idea how or why the
retropay amounts to Mackron, et al., were arrived at. Accord-
ingly, I infer that it was based on Igoa’s discretionary judg-
ments alone that Tolentini, Mackron, and Ojeda were favored
with hefty one-time retroactive paychecks. 65 Beyond that, I
note that the Respondent made no attempt to prove that there
was precedent for thus giving super-retroactive effect to a dis-
cretionary, “merit” raise, as distinguished from a raise due un-
der a union contract expressly providing for such retroactive
effect. On the contrary, it seems inherent in the nature of Igoa’s
explanations that these actions were without historical prece-
dent.
64 The retropay for the initial raise under the union contract should
have been paid when the parties finalized the contract in late June 1995.
The Company was free under the union contract to give merit raises
any time it wanted to.
65 Although Dunne denied any knowledge concerning the super
retropayments to the three cashiers in question, he somewhat summa-
rily and indistinctly affirmed that he had recommended to Igoa that
they receive merit raises in December 1995. I doubt that he played
more than a ministerial role even with respect to the latter. Igoa clearly
seems to have been the moving party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
Even when I examine Igoa’s explanations on their own
terms, I am left with the strong impression that they were
merely improvised after-the-fact. Remember, all of the forego-
ing points were advanced by Igoa to explain why he waited
until December 1995 to give merit raises which he claims the
three would have received at some indefinite earlier point but
for ambiguity in the Union’s “position” about which level of
“contract” raise would apply to” above-“scale” workers. And
my first observation in this regard is that Igoa was essentially
incoherent in identifying the nature of the supposed ambiguity
or conflict in question, even though he was himself a partici-
pant in the negotiations associated with the new contract, and
therefore it’s hard to see why he would have had so much trou-
ble describing the problem. It’s especially hard to discern from
Igoa’s hazy accounts exactly what was the nature of the di-
lemma which supposedly had tied the Respondent’s hands
when it came to conferring merit raises; and it’s doubly hard to
understand why the Respondent would even have allowed its
own hands to be tied for 13 or more months of the supposed
merit-raise “freeze.” Beyond these difficulties, Igoa’s explana-
tions raise yet additional questions for which the Respondent
has provided no clear answer, as follows:
First, it is hard to understand how the Union could even have
had a “position” as early as October-November 1994 about a
matter of interpretation or application of a wage provision in a
contract about which the parties did not even reach “tentative”
agreement until March 31, 1995. Thus, it’s hard to swallow
Igoa’s claim that there had existed a freeze on merit raises as
early as October–November 1994, or even as early as Decem-
ber 1994, when, under normal company practice, Mackron
would have been eligible for consideration for another merit
raise, but in fact had not been considered for a merit raise. And
if, as I judge, Igoa’s explanations do not plausibly explain why
Mackron had been bypassed for merit-raise consideration in
December 1994, then the more natural explanation for her by-
passing at that time is that she was not then considered to be
such a superior worker as to warrant such a raise.
Second, if the Respondent’s concern over some ongoing am-
biguity in the Union’s position had caused the Respondent to
withhold merit raises from deserving employees from October–
November 1994 until December 1995, what, if anything, hap-
pened in December 1995 to allay this supposedly longstanding
concern? What caused Igoa in December 1995 to lift the sup-
posed freeze on merit raises? The Respondent presented no
evidence that some ambiguity in the Union’s position had been
cleared up by then. In fact, the record affirmatively suggests
that questions concerning the application of the murky pay-
raise provisions in the union contract continued to dog the par-
ties for months thereafter.66 Accordingly, we can rule out the
possibility that the December timing of the merit raises might
be explained by some resolution of the supposed longstanding
“issue” about “contract-raise” questions. In fact, in Igoa’s only
stab at explaining why he chose December 1, 1995, as a com-
mon date to give merit raises to the three employees (and oth-
ers) he stated in substance that this was consistent with prior
patterns and practices, i.e., that “December” marked a typical

66 See, e.g., Jt. Exh. 3.
point when employees would be considered for merit raises.
However, Igoa and Dunne both later agreed that the Respon-
dent’s typical historical practice when it came to merit raises
was to wait a year since an employee’s last merit raise before
considering the employee for a new one. Moreover, when
pressed on his initial assertion, Igoa could think of no historical
precedent for giving merit raises in December to a group of
employees, and the Respondent introduced no other evidence to
corroborate this assertion.
Third, if the Respondent had been intentionally delaying giv-
ing any merit raises during the 13 months preceding December
1995, then why didn’t the other cashiers who also received
merit raises in December 1995 get super retropayments, too?
Here, Igoa’s answers were, at best, half-baked and confusingly
circular in nature, and they ultimately proved too much. Thus,
to justify the special treatment for Mackron and Ojeda, Igoa
cited the “lead” responsibilities they supposedly had assumed
after Gutierrez transferred to The Grille in October 1994—
responsibilities, which the other cashiers supposedly had not
been obliged to shoulder. As discussed in the next Section,
dealing with additional raises to Mackron and Ojeda during the
remainder of the preelection period, I have concluded that their
supposed “lead” responsibilities have always been overstated
and that the Respondent’s defense linked to such considerations
amounted to disingenuous, post facto rationalization. But here
it is enough to observe that the invocation of Mackron’s and
Ojeda’s supposed “lead” status only makes it more curious that
Tolentini was the only other cashier shown to have been se-
lected to receive a super retropayment. Certainly, there is no
reason on this record to suppose that Tolentini had shouldered
any distinctive responsibilities or was otherwise seen by com-
pany managers as a “superior” performer. In fact, the evidence
is to the contrary: In a performance appraisal which preceded
Tolentini’s merit raise by only 2 weeks (U. Exh. 24, dated No-
vember 19, 1995), Café Manager Brian Madlin had given To-
lentini only a “standard’ rating “score,” and his only narrative
comment had been that Tolentini “Must reduce Tardiness.”
(Significantly, Igoa testified elsewhere that an employee receiv-
ing a “standard” rating would not normally be considered for a
“merit” raise.) Moreover, from a seniority standpoint, Tolentini
stood fifth in a line of seven cashiers. He was nearly 2 years
less senior than Medina, whose own merit raise was not given
super retroactive effect. In addition, Medina’s numerical
“score” on her own recent evaluation was higher than Tolen-
tini’s, although it still fell within the “standard” range. (See U.
Exh. 25.) (Separately, Igoa’s explanation for why Medina’s
December 1995 merit raise was not given super-retroactive
effect was hopelessly confused or, to the extent it was margin-
ally comprehensible, hopelessly tail-chasing in character.) In
sum, the inclusion of Tolentini among the select few whose
merit raises were given super-retroactive effect makes it dubi-
ous that “special responsibilities” or “superior” performance
had anything at all to do with the Respondent’s (Igoa’s) reasons
for selecting any of the three cashiers for super retropay. And if
satisfaction of those criteria did not genuinely account for the
grouping together of the three employees for super retropay
purposes, what other criterion or criteria did account for the
Respondent’s selection of those particular three workers for
MIRAMAR SHERATON HOTEL 1233
super retropay? On this record, the only other obvious basis for
grouping the three for these purposes was their apparent impor-
tance in the decertification movement.
Finally, if Igoa’s testimonial explanations for the super
retropayments bore any significant resemblance to any underly-
ing reality, I wonder why he signed ER-21s for the three em-
ployees indicating (quite falsely) that “12–1–95” was the com-
mon “effective date” for their merit raises. Remember, he in-
sists that he had really intended all along to make these merit
raises effective far earlier—February 1, 1995, in the cases of
Tolentini and Ojeda, and January 1, 1995, in Mackron’s case.
In the circumstances I can only infer that by adopting the De-
cember 1 “effective date” for ER-21 purposes, he was trying to
disguise his real intentions by leaving a false paper trail, should
the paperwork ever be examined.
Accordingly, recast in Wright Line terms, these are my ulti-
mate findings and conclusions of law with respect to the merits
of the complaint insofar as it attacks the super retropayments:
The perceived importance of Tolentini, Mackron, and Ojeda to
the movement to oust the Union were unlawful motivating
factors in the Respondent’s decision to give super-retroactive
effect to their merit raises in December 1995. The Respondent
has not demonstrated that it would have given them that same
favorable treatment even in the absence of their antiunion views
or activities. Therefore the Respondent must be found to have
violated the Act substantially as alleged in the complaint.
b. Impact of Section 10(b)
Consistent with caselaw reviewed in my original 10(b) deci-
sion, I start by recognizing that the 10(b) clock did not begin to
run on the super retropayments of December 1995 until such
point as the Union could be said to have been on actual or con-
structive “notice” that the Respondent had given them to the
three employees in question. There is no doubt that the Union
and the General Counsel had actual “notice” of these facts by
no later than March 26, 1999, when the Respondent turned over
to the prosecuting parties the personnel files for the three em-
ployees (among hundreds of others) which contained the ER-
21s, which, in turn, contained “retropay” amounts from which
the prosecuting parties could have inferred (and eventually did
infer) that the merit raises to the three employees had been
given super-retroactive effect.67 But the critical question in
dispute is whether the Union can be said to have had “construc-
tive” notice of these facts at a significantly earlier point. Ex-
pressed in its simplest form, the question is this: Did the Union
have constructive notice of the super retropayments at any point
more than 6 months before December 3, 1997, when it filed the
triggering charge herein? If so, it would not matter exactly

67 The prosecuting parties may not have had actual subjective
awareness of the super retropayments until some point closer to the
resumption of this trial on May 17, 1999. However, actual “awareness”
is not the same as “actual notice.” And it is clear, as counsel for the
General Counsel acknowledged during the trial, that the super retropay
inferable from the ER-21s was “there to be seen” from the first point
the ER-21s were made available to the prosecuting parties, i.e., March
26, 1999. With the latter fact being paramount in my thinking, I would
find that March 26, 1999, clearly marked a point of “actual notice,” and
not just “constructive notice.”
when the Union first had constructive notice, the dispositive
fact requiring dismissal of the complaint on 10(b) grounds
would be that the charge was filed more than 6 months after the
Union had acquired such notice. As discussed next, there is no
evidentiary basis for finding that the Union had constructive
notice at any point prior to March 26, 1999, the same date the
Union was put on actual notice of the tell-tale entries on the
ER-21s.
Under the governing caselaw, the Union may be found to
have had constructive notice of any now-complained-of action
of the Respondent from the first point at which the Union could
have discovered the action by exercising “reasonable dili-
gence.” Obviously, a union cannot be charged with failure to
exercise “reasonable diligence” in the discovery of a fact which
it lacked the “means to discover” in the first place. By parity of
reasoning, however, if the Union possessed the means to dis-
cover the action at some significantly earlier point, then its
failure to take advantage of that means may be a critical con-
sideration in a judgment that the Union failed to exercise “rea-
sonable diligence.” The Respondent, with the same standard in
mind, contends that the Union has been on constructive notice
of the super retropayments virtually from the point they were
first given to the three employees, because at all times it had the
“means to discover” these payments—that is, the statutory right
to request information which, if it had been exercised within the
first 6 months after the payments were made, would have
yielded evidence of their existence in plenty of time to file a
10(b) timely charge. More specifically, the Respondent argues
that just as it was open to the Union to use information requests
to discover the hourly pay rates of bargaining unit employees at
any given time (a right which the Union clearly had not been
shy about exercising), the Union could have used the same
information-request process to gain access to the personnel files
of the three employees and, in turn, to discover the ER-21s
which disclosed the super retropayments. For the following
reasons, I am not persuaded by the analogies sought to be
drawn by the Respondent.
The Respondent’s contentions dubiously suppose at the
threshold that “reasonable diligence” required the Union to do
two seemingly quite unreasonable things: (1) to anticipate,
somehow, that the Respondent might use the device of giving
super retroactive effect to an otherwise known and unremark-
able merit raise as a means of “rewarding” or “encouraging”
antiunion activity; and then (2) to demand a look at all person-
nel records which might conceivably disclose that such a device
had been employed by the company. (Considering that proof of
discriminatory “favoritism” almost necessarily requires com-
parisons of the treatment given to the suspect employees with
the treatment given to other employees, it’s hard to see how
anything short of a “shotgun’ approach, i.e., a blanket request
for production of all bargaining unit employees’ personnel files,
would permit the union to prove—or to rule out—the particular
possibility in question.). As I see it, however, it would have
required the trained imagination of a master sleuth—or the
fevered imaginings of a paranoid personality—to have antici-
pated that possibility. “Reasonable diligence” cannot reasona-
bly be interpreted to require the Union to maintain or exercise
any such extreme level of suspicious imagination or hypervigi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
lance. In addition, even in the wholly unlikely event that the
Union had considered the possibility that the Respondent would
use the super retropay device to reward the suspect three cash-
iers, it also would have been reasonable for the Union to sup-
pose that if the company had done some such thing it probably
would have covered its tracks, thus making it a probable waste
of time even to ask for blanket production of the personnel
records. And, in fact, I have found it likely that just such a
tracks-covering reason explains why the ER-21s for Tolentini,
Mackron, and Ojeda signed by Igoa recited (falsely) that “12–
1–95” was the “effective date” of their merit raises.
Equally dubious is the Respondent’s implicit proposal that,
just as the Union had a routine statutory right to obtain periodic
information about the hourly rates being paid to bargaining unit
employees, it also had a routine right to demand production of
the unit employees’ personnel files. I think this proposition not
only stands on legally shaky ground, but that its interposition in
the known circumstances of this case was especially uncon-
vincing, even hypocritical.
It is well established, of course, that the Act confers on a un-
ion with established 9(a) representative status a “presumptive”
right to request and receive periodic “bargaining unit wage
information” from the employer, i.e., a right to receive such
information without being required to make any particular
showing of relevance or special need. See, e.g., Bryant & Strat-
ton Business Institute, 321 NLRB 1007 fn. 4 (1996), and au-
thorities cited. The record clearly shows that the Union, at least
after it began operating under International trusteeship, exer-
cised that right frequently. Indeed, the existence of that pre-
sumptive right, and the fact that the Respondent had complied
whenever the Union had asked for the current wage rates of the
employees in the bargaining unit, were clearly important inter-
locking considerations driving my original 10(b) decision dis-
missing the original complaint’s attacks on all but the most
recent of the several subsequent pay raises given to Mackron
and Ojeda.
However, it is the wage information (as distinguished from
any particular company record), which the employer is pre-
sumptively obliged by the Act to furnish on the union’s request.
And as I read the caselaw, a union’s presumptive right to wage
information does not inevitably carry with it a presumptive
corollary right to demand production of employee personnel
files or particular records within those files simply because
those files or records might contain information about employ-
ees’ wages. To begin with, there exists no “absolute rule” under
which “a union’s interests in arguably relevant information
must always predominate over all other interest, however le-
gitimate.” Detroit Edison v. NLRB, 440 U.S. 301, 318 (1979).
On the contrary, “The duty to supply information . . . turns
upon ‘the circumstances of the particular case.’ . . . [A]nd much
the same may be said for the type of disclosure that will satisfy
that duty.” Id. at 314–315; citations omitted. (See also Id. at
318 fn. 14 and cases cited.) Indeed, especially sensitive ques-
tions arise when union access to individual personnel files or
records is at issue. Id. at 318 fn. 16, and authorities cited and
discussed. And in “personnel-file” cases, it is reasonably clear
that a union does not enjoy any presumptive right of access.
Rather, such a right is found to exist only on the basis of a
showing of particular need for a more particular purpose than
merely getting an update on bargaining unit employees’ current
pay rates, such as for investigating or processing a grievance.
And even then the right is found to exist only after balancing
the Union’s particular needs against any competing legitimate
interests, such as employee privacy or confidentiality. Id. at
318–319.
The foregoing distinctions strike me as critical for these pur-
poses: It was at best highly doubtful that the Union would have
had statutory backing in the hypothetical event it had insisted
that the Respondent produce personnel files or records. A de-
mand for such access required a special showing of need on the
Union’s part, and the only “need” the Union might have cited
was its mere suspicion that the Respondent might be giving
special payoffs or rewards to the suspect three—a suspicion,
moreover, which had not been supported by the Union’s ex-
amination of pay-rate compilations already received from the
Respondent. In the circumstances, I can hardly find that the
Union’s “failure” to make a statutorily dubious demand for
such personnel-file access nevertheless amounted to a lapse of
“reasonable diligence.” Moreover (and in significant contrast to
the facts and issues presented in my original 10(b) decision),
the Union’s failure to make a more timely discovery of the
super retropayments had nothing to do with any failure on its
part to make a more timely request for wage information, i.e.,
the current hourly pay rates of each bargaining unit employee.
Such a conventional request obviously would not have yielded
(indeed, did not yield) the necessary evidence that the known
merit raises to the suspect three employees had been given
super retroactive effect.
Finally, the Respondent’s arguments necessarily require us
to suppose that if the Union had only sought production of the
employee’s personnel files, the Respondent would have readily
produced the same. Apparently, we are asked to indulge this
supposition because the record affirmatively shows that, his-
torically, the Respondent complied when the Union made
wage-information requests calling only for the current hourly
pay rates of each bargaining unit employee. But for reasons
already thoroughly discussed, the Respondent would have had
no obvious statutory defense if it had refused to supply such
“presumptively” relevant information. By contrast, we cannot
assume that the Respondent would have been as readily ac-
commodating if the Union had made a demand not cloaked
with any presumption of statutory entitlement, i.e., a demand
for production of personnel files.
Moreover, the supposition we are asked to indulge is under-
mined significantly by other facts. Thus in the only case of
record where the Union was specifically shown to have sought
access to an employee’s personnel file (that is, the only instance
preceding the opening of this trial), it did so ancillary to a
grievance-arbitration process, and then only for the limited
purpose of verifying that a record of disciplinary action had
been expunged from the employee-grievant’s file, as an arbitra-
tor had ordered. And even in that instance, the accounts of Pe-
tersen and Igoa harmoniously indicate that the Respondent
granted such access only at the urging of a Board agent, as part
of an informal charge-adjustment process. And even then, the
resulting disclosure meeting quickly broke up in acrimony
MIRAMAR SHERATON HOTEL 1235
when Petersen demanded that bargaining unit employees on the
Union’s grievance committee other than himself and the af-
fected grievant be allowed to examine the personnel file in
question, and Igoa refused this demand. Given this history, I
cannot suppose, nor was the Union required to suppose, that the
Respondent would have readily accommodated any request for
blanket access to personnel files simply for purposes of testing
the Union’s suspicion that the three employees in question
might have been the beneficiaries of some unique kind of pay-
favoritism.
Accordingly, I conclude as a matter of law that the complaint
is not barred by Section 10(b) insofar as it calls into question
the super retropayments given to Tolentini, Mackron, and
Ojeda in December 1995.
V. SUBSEQUENT PAY RAISES TO MACKRON AND
OJEDA
A. In 1996
Here we are concerned with a $3 hourly raise to Mackron
made effective on May 1, 1996, and two, successive $1 raises
given to Ojeda, the first made effective on June 5, 1996, and the
second on August 21, 1996. I have already determined that all
three of these 1996 raises were barred from prosecution by
Section 10(b), and I adhere to that decision. Were it not for the
time-bar, however, I would conclude, based on the findings and
considerations set forth below, that each of these raises was
unlawfully conferred.
1. Mackron’s $3 raise
On May 6, 1996, Igoa signed an ER-21 (U. Exh. 6) authoriz-
ing a $3-merit raise for Mackron, to be made retroactively ef-
fective to May 1. (Dunne and Worcester also signed the ER-21,
but their signatures are undated.) Six months earlier, in Decem-
ber 1995, Mackron had received a 50-cent merit raise, plus a
hefty retropaycheck. The “December 1995” raise (effectively a
January 1995 raise) had elevated her pay by about 6 percent, to
$9 per hour. As a consequence of the new, $3 raise authorized
by Igoa on May 6, Mackron’s pay had jumped another 33-1/3
percent, to $12. In sum, within a period of 6 months, the Re-
spondent had raised Mackron’s hourly pay by about 40 per-
cent—a whopping amount by any measure.
According to the ER-21, the occasion for Mackron’s $3 raise
was a “Performance Review.” However, the performance
evaluation rationalizing this action (U. Exh. 7) was only pre-
pared after the fact, on May 11, and it was signed only by
Dunne, not by either Madlin or Black, Mackron’s immediate
supervisors in The Café, depending on which shift she was
working. Igoa and Dunne both testified that company policy
and normal practice was to wait a full year before considering
an employee for another merit raise, and that the normal se-
quence was evaluation first, raise second—not vice-versa. Igoa
couldn’t recall ever having previously (or since) authorized a
merit raise as large as $3 per hour (nor even as large as $1 per
hour) much less a $3 raise given within 6 months of an earlier
merit raise. It is quite apparent, therefore, that Mackron’s $3
raise was given under irregular and unprecedented circum-
stances, just as had been the case with her super retropay 6
months earlier.
In Igoa’s first appearance on the witness stand (when called
and examined adversely by the Union), this is how he tried to
explain why a nonroutine approach had been followed with
respect to Mackron’s $3 raise:

A. It was discussed [between Igoa and Dunne, as Igoa
later stated] that Ms. Mackron would be taking over the
responsibility of the p.m. shift [in The Café]. And that they
[meaning Dunne, apparently] wanted to increase her $3
based on her performance and based on the responsibility
that she was going to have and at the same time the
amount of turnover that we were having with cashiers.
We were also going through the process of opening the
Grille, the restaurant, the Grille. And Griselda [Gutierrez]
. . . the cashier supervisor, was to move over to the Grille
as an assistant manager.

This explanation proved to be essentially fanciful insofar as it
implied that Gutierrez’ transfer to the new position in The
Grille (and Mackron’s supposed assumption of “responsibility
[for] the p.m. shift”) was either about to happen when the $3
raise was conferred, or had happened only recently. In fact,
Gutierrez had transferred to the Grille in October 1994, more
than 18 months earlier. Moreover, this explanation proved to
involve gross overstatement insofar as it suggested that Mack-
ron (or Ojeda) had been obliged to “take over the responsibil-
ity” previously shouldered in The Café by Cashier Supervisor
Guttierrez. (The record shows that Gutierrez prepared and
signed performance appraisals for the cashiers, and that she did
no cashier work herself.) At best, the Respondent’s entirely
hazy and indeterminate showings as to what “responsibilities”
did devolve to either Mackron or Ojeda after Gutierrez moved
to The Grille suggested only that one or two wholly routine
nonsupervisory functions may have gradually accreted to
Mackron’s traditional job as a cashier.68 (Even less distinct on
the record are any accretions to Ojeda’s job that may have been
occasioned by Gutierrez’ transfer.) But these weaknesses
merely obscure a more fundamental set of problems with Igoa’s
rationalizations: Any “responsibilities” (such as they were)
which either Mackron or Ojeda may have taken on in the af-
termath of Gutierrez’ transfer had apparently been acquired
long before May 1996. Thus any such responsibilities obvi-
ously were known to Igoa and Dunne—and presumably had
been taken into account by them—when they gave Mackron
(and Ojeda) a 50-cent-per-hour-merit raise in December 1995.
In addition, there was no mention of any such added responsi-
bilities in the “Performance Evaluation” prepared by Dunne
after Igoa had already authorized the $3 raise to Mackron.
Moreover, to the extent Mackron or Ojeda had acquired some
added responsibilities since October 1994, Igoa apparently had
not deemed the responsibilities significant enough to warrant

68 Thus, as previously noted, at some uncertain point, Mackron be-
gan distributing the tips to the table and room servers at the end of a
shift. This might arguably be seen as a “lead” responsibility. The only
other arguably “lead” role she may have played was in working out
break schedules for the room and restaurant servers. Both functions
were entirely routine and nondiscretionary in nature. Mackron further
acknowledged that other cashiers would perform these functions on
occasion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236
mention on any of the several ER-21s associated with the vari-
ous raises they received during the protracted preelection pe-
riod. Still less had Igoa deemed their jobs to have changed so
materially as to warrant a job reclassification. Mackron (and
Ojeda) continued at all material times to be classified as “food
and beverage cashiers,” period.
Another problem with Igoa’s initial explanations concerning
Mackron’s $3 raise was that they omitted a development which
clearly was far more important in explaining both the amount
and the timing of that raise—Mackron had demanded a $3 raise
and had threatened to “quit” if she didn’t get it. At least this
was Dunne’s explanation, and Mackron acknowledged much
the same thing. (Igoa eventually did, too, but only after pretend-
ing in his initial explanations that Dunne’s “recommendations”
and a mutual recognition that Mackron would be taking on
increased “responsibilities” alone accounted for the raise.) Igoa
and Dunne further testified in rough harmony that the pre-raise
negotiations had taken place only between Mackron and
Dunne, with Igoa becoming involved only after Dunne himself
“decided” to give Mackron the demanded $3 raise rather than
lose the supposedly unique “strengths” which Mackron brought
to her performance of the cashier’s job. For reasons that will
soon become more clear, I doubt that Igoa remained out of the
loop until Dunne had already made up his own mind to confer
the raise. (Particularly in the light of Black’s credited testi-
mony, below, I think that virtually the opposite was the case.)
But I have little difficulty accepting that Mackron’s threat to
quit—and the Respondent’s desire to keep her on the job at all
costs—were the critical factors causing Igoa to authorize her $3
raise. However, the question yet to be answered is why Mack-
ron’s continued employment was deemed so important to the
Respondent that Igoa would knuckle under to her latest pay
demand. Given the unprecedented size and timing of the raise
alone, I find it especially hard to believe the reason proffered
by Igoa and Dunne—Mackron’s “increased responsibilities,”
whatever they were. Moreover, there is no evidence that Dunne
or Igoa had done any market survey to determine if cashiers in
comparable positions elsewhere were earning as much as $12
an hour. Indeed, so far as this record shows, if Mackron had
demanded a $5 per hour raise, Igoa (and Dunne) would have
capitulated just as readily as they did to her $3 demand. Rather,
considering every finding I have made so far in this decision, I
think that Mackron’s critical role in the movement to oust the
Union far easier explains why Igoa deemed it worth the ex-
pense to appease Mackron’s latest wage demand.
Lending further weight to the foregoing interpretations is
Ulysses Black’s plausible testimony concerning a closely re-
lated set of incidents which occurred, I find, only shortly before
Igoa authorized the $3 raise for Mackron. Specifically, I credit
the following passages in Black’s testimony, in which he de-
scribes what happened after Mackron had returned to The Café
after having met with Igoa to discuss her demand for the raise:

Q. Okay, and when she came back did she tell you
anything about the meeting between her and Igoa?
A. She told me, she came back and she wasn’t particu-
larly happy with the amount that she discussed.
Q. Okay, and was anything further said between you
and her at that time?
A. No.
Q. Okay, and sometime later that day then did Mr.
Igoa appear?
A. Yes, and she was still in my office at that time and
Mr. Igoa was walking through the area.
Q. And what happened?
A. She just [said], in one of her outbursts, that she
wasn’t happy with the amount and she wasn’t going to fol-
low through, she said “I will just walk away from this Un-
ion thing, I will walk away from it.”
Q. And what, if anything, did Mr. Igoa say?
A. He said, “I thought we discussed this, calm down,
lets talk about it[,]” and they went into my office.”
Q. And where did you go?
A. I then left.
Q. Okay, did you hear what was said between Mack-
ron and Igoa in your office?
A. No.
Q. Okay. And at some point later then that day did
you have any conversation with Mackron, any further
conversation about what she and Igoa talked about?
A. I can’t remember.
Q. And either that day or shortly thereafter did you
have any conversation with Mr. Igoa about the subject
matter?
A. He mentioned that she was—
JUDGE NELSON: The question asks for a yes or a
no.
THE WITNESS: Yes, yes, I am sorry.
Q. [BY MR. JELLISON]: And where did that conver-
sation take place?
A. It happened in front of the Room Service door lead-
ing in from the Lobby.
Q. Okay, and was anybody present besides you and
Mr. Igoa?
A. No.
Q. And tell us what he said and what you said in that
conversation?
A. He said he wasn’t happy with, he wasn’t happy
with Deborah in regards to her actions helping them with
the Union, he wasn’t happy with their choice.
Q. And did he say anything further?
A. No.
Q. Did you say anything?
A. I just said “[Y]ou picked a beaute [sic],” or some-
thing to that extent [sic].
Q. When you said that did he say anything?
A. “I guess we are stuck with her now.”
Q. Okay.
JUDGE NELSON: Excuse me, just so I can under-
stand, where was your conversation with Mr. Igoa?
THE WITNESS: It was coming through, there is a lit-
tle hallway which goes in between from Room Service to
the Lobby and should I tell you how we came about to be
together or?
MIRAMAR SHERATON HOTEL 1237
JUDGE NELSON: I do want to pursue that but I just
want to understand the setting, was this conversation
[with] Mr. Igoa the same day that he took her into your of-
fice to have a conversation with her?
THE WITNESS: Do you know frankly I can’t re-
member if it was the same day or a day or two later, but it
was in very close the same time period.
JUDGE NELSON: All right, and you can tell me what
you remember about how you happened to meet up with
Mr. Igoa at that time?
THE WITNESS: He was out there responding to a
problem that Deborah was having with another employee,
either she was trying to coax the person to be antiunion or
it was some type of an outburst and he had to go up there
to calm things down. And shortly after speaking with her
and the other employee he then complained to me about
his choice, she was a little aggressive in her manner to so-
licit people, she would go overboard and it worried him.
He mentioned the fact that it is really not a good choice we
have here helping us with this Union thing. And I said
“[W]ell you really picked a [beaut],” and he said “[W]ell
we are stuck with her.”

Again, Black’s account of these incidents makes vivid what
otherwise seems probable on this record: If Mackron’s “merits”
as a cashier had been the only factor entering into Igoa’s deci-
sion whether or not to accede to her demand for a $3 raise, he
wouldn’t have capitulated. Rather, it apparently took Mack-
ron’s express threat to “walk away from this Union thing” to
bring Igoa around to Mackron’s point of view, i.e., to convince
him that she was now entitled to a $3 raise beyond that which
he had given her 6 months earlier.
2. Ojeda’s two raises of $1 each
On June 8, Igoa filled out by hand and signed an ER-21 au-
thorizing a $1 raise for Ojeda, to be effective June 5. Again,
Igoa wrote “Performance Review” as being the nominal occa-
sion for the raise. Seven months earlier Igoa had raised Ojeda’s
pay by 50 cent, bringing her to $9 per hour, equal to Mackron’s
new pay level at that time. The early June raise brought Ojeda
to $10 per hour, a significant raise in itself, but nevertheless
two dollars short of what Mackron had been earning since early
May, as a result of her own $3 raise. Like the $3 raise to Mack-
ron, the $1 raise given to Ojeda in June 1996 was quite incon-
sistent with the Respondent’s past practice of waiting a year
since an employee’s last evaluation and merit raise (if any)
before considering the employee for another merit raise. Even
ignoring that anomaly, it might be presumed at least that once
Ojeda received her June 1996 merit raise, she would not be
eligible for consideration for another merit raise until June
1997. And in fact Igoa expressly confirmed this when he wrote
on Ojeda’s ER-21 of June 8, “Next Review: 6/5/97.” Strikingly,
however, less than 4 months later, on August 28, Igoa signed
another ER-21 for Ojeda, authorizing an additional $1 raise for
her, now bringing her to $11 per hour. Three merit raises total-
ing $2.50 conferred in an 8-month period was an extraordinary
amount in itself, with only Mackron’s recent experience for
“precedent.” I see no need to dwell further on the irregularities
and the other departures from historical practice, which are
almost facially apparent in the foregoing review. It remains to
examine the Respondent’s explanations.
Igoa claims to have relied solely on Dunne’s recommenda-
tions when he authorized the two successive $1 raises to Ojeda.
Dunne, too, states, that the raises were conferred on his own
say-so. Dunne’s version of the background circumstances is
distinctly different from Ojeda’s version. Dunne testified, in
substance, that he spontaneously decided in June to give Ojeda
a $1 raise, in recognition of her “performance” and special
“responsibilities” in The Café, and that he did not speak with
her before recommending this raise to Igoa. He states that he
decided to give her an additional $1 raise in August only after
she confronted him, told him she had learned that Mackron had
gotten a $3 raise, and felt that she was entitled to one, too, and
threatened to quit if she were not brought up to par with Mack-
ron Ojeda, by contrast, denied ever having even learned prior to
the RD election that Mackron had been given a $3 raise, much
less having mentioned any such thing to Dunne. Also contrary
to Dunne, she testified that she received her $1 raise in June
only after having first approached Dunne and asked him for a
raise of more than $1. She stated that she accepted Dunne’s
offer of a $1 raise only grudgingly, and that she specifically
advised him that she would be approaching him again, in Au-
gust, to ask for a greater amount.
I find it both impossible and unnecessary to resolve these
conflicting accounts. Indeed, any resolution as between and
among Dunne, Igoa, and Ojeda would have a fictional quality
in the end: It would assume that at least one of the witnesses
was being truthful at some point. In fact, as I watched and lis-
tened to each of them, my strongest impression was that they
were each trying to hide as much about this background as
possible. However, whatever the underlying truth, it strikes me
as significant that both Dunne and Igoa seemingly believed (or
perhaps simply feared) that Ojeda had become aware that
Mackron had received a huge pay raise, and was likely to make
an embarrassing fuss about this if not appeased with pay raises
of her own. I also regard it as significant that both versions tend
to show an overweening wish on the part of Dunne and Igoa to
pacify Ojeda rather than simply tell her to move on if she didn’t
like her pay. Again, for reasons already discussed in Mackron’s
case, it is simply incredible in the end that Ojeda’s supposedly
increased “responsibilities” in The Café could have alone
caused the Respondent to give her pay raises in such unprece-
dentedly large amounts and within such an unprecedentedly
abbreviated period of time. In addition, Igoa’s and Dunne’s
explanations for the two 1996 raises to Ojeda make it reasona-
bly clear that these raises would not have been conferred had it
not been for the prior decision to give Mackron a $3 raise in
accordance with Mackron’s demands. In fact, the relationship
of the initial, $3 raise to Mackron to the subsequent raises to
Ojeda appears to have been essentially the same as the relation-
ship between a falling domino and the domino standing next in
the line of fall. I have already found that Mackron’s $3 raise
was unlawfully conferred; I can reasonably infer as well either
that the same reasons figured in Ojeda’s successive raises, or
that Ojeda’s raises were conferred to buy her silence about
Mackron’s unlawful raise. Which of these two possibilities
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
more fully accounts for Ojeda’s raises is a purely academic
question; either reason would make the action unlawful.
B. In 1997
The last of the raises to Mackron and Ojeda attacked by the
complaint elevated their pay by another 50 cents per hour.
Mackron’s raise became effective on May 1, 1997; Ojeda’s
became effective on August 21, 1997. I found in my original
10(b) decision that Mackron’s May 1997 raise was barred from
prosecution by Section 10(b), but that Ojeda’s August 1997
raise clearly was not time barred.
I recognize that these final hourly increases, seen as isolated
phenomena, would not necessarily raise any eyebrows. They
were awarded a full year after each employee’s most recent
merit raise. Moreover, the 50 cents amount was not grossly
different from merit raises given to other employees, as re-
vealed on Union’s Exhibit 25. (For example, on August 14,
1997, cashier Norma Rodrigez received a 30-cent-merit raise,
bringing her to $8.80 per hour.) But Mackron’s and Ojeda’s
final raises cannot be considered in isolation. Mackron’s final
raise brought her pay to $12.50 per hour. Ojeda’s final raise
brought her to $11.50 per hour. They both had been earning
$8.50 per hour when the RD petition was filed. The Respondent
had raised Mackron’s hourly pay by a total of $4 within the 18-
month period starting in December 1995, when she received the
first of the raises in question (plus a substantial retroactive pay-
check), and ending in May 1997, when she received the last
such raise. This amounted to a net pay boost of about 47 per-
cent within an 18-month timespan. The Respondent had like-
wise boosted Ojeda’s pay significantly, by approximately 35
percent within only a slightly longer timespan. Again, the Re-
spondent failed to introduce any evidence suggesting that one
or more other employees had received comparably huge raises
during the same preelection period. All of these circumstances,
considered against the background of antiunion animus, cause
me to infer, once again, that unlawful antiunion considerations
were motivating factors in the decisions to grant these final
raises to Mackron and Ojeda.
The Respondent was no more successful in these instances
than it was in prior instances in carrying its own burden under
Wright Line. In fact, Igoa made no distinct attempt to explain
the particular reasons informing the decisions to grant either of
these 1997 raises, nor did Dunne, who apparently had already
left the Respondent’s employ before either of these raises was
conferred. I am presumably invited to find that the extra “re-
sponsibilities” (whatever they were) supposedly shouldered by
Mackron and Ojeda since Gutierrez’ October 1994 transfer to
The Grille would have alone accounted for the final raises. I am
no more impressed by such ephemeral claims in these instances
than I was in connection with the earlier raises, and I see no
need to repeat the facts and the analyses, which have influenced
this judgment.
VI. THE REMEDY
A. Introduction
I have found on the merits that all of the pay actions chal-
lenged by the amended complaint violated Section 8(a)(1) ex-
cept for the raises given to the three employees in December
1995. I have further found, however, that the only actions not
barred from prosecution by Section 10(b) were the super
retropayments to the three employees in December 1995 and
the final pay raise to Ojeda on August 21, 1997. Accordingly,
the recommended cease-and-desist and records-availability
orders I arrive at below will speak to those violations in particu-
lar. However, my recommended remedy would be no different
even if I had not partially dismissed the complaint on Section
10(b) grounds.
Before I briefly explain the reasoning which informs my rec-
ommended remedy, I must first address and explain my reasons
for rejecting the General Counsel’s and the Union’s common
requests for a quite different and extraordinary remedy, one
under which “all other employees in the bargaining unit” must
be made “whole” for “losses” the prosecuting parties presume
they have “suffered” as a result of the Respondent’s unfair
labor practices. Thus, as elaborated below, the General Counsel
seeks a remedy for the pay-raise violations which requires the
Respondent to “rescind” in some never-clearly-defined manner
the unlawful raises to the favored three employees, and further
to “make-whole” a class of “other” unit employees (meaning
“all other employees in the bargaining unit” with respect to all
but one pay raise) by paying them “backpay” in some amount.
Moreover, the General Counsel asserts that the backpay owed
to the other employees will continue to grow until such time as
the Respondent does whatever it is supposed to do to “rescind”
the offending raises. As I will illustrate below, the General
Counsel’s evolving attempts to describe the proposed remedy
have been marked by certain evident inconsistencies of ap-
proach. However, what has been even more remarkable about
each of these successive descriptions is their consistent reliance
on verbal formulations so wooly and convoluted as to make it
virtually impossible to be sure what the envisioned remedy
contemplates and how it is supposed to work. Moreover, I will
conclude that mere artlessness of expression is not really what
stands in the way of comprehending the proposed remedy;
rather, the real problem is that the General Counsel’s vision of
the remedy has itself been too vaporous and shifting to admit of
any intelligible or coherent formulation. The incoherence of the
General Counsel’s proposed remedy and the clouded prosecuto-
rial vision, which informs it would be reasons enough to reject
it. However, as I see it, there is yet a more fundamental prob-
lem: In the context of this prosecution, the “rescission” of the
unlawful raises and backpay to “other employees” sought by
the General Counsel are not really “remedial” devices at all, but
are, at bottom, merely punitive in conception, and therefore are
beyond the Board’s statutory power to impose.
I will amplify on each point below, starting with an analysis
of each of the General Counsel’s evolving descriptions of the
proposed remedy as tendered at three key junctures in this liti-
gation—first in the complaint, next in the amended complaint,
and finally on brief, in the form of a proposed Board Order.
B. The Remedy as Variously Described by the General Counsel
1. In the original and amended complaints
In the original complaint, when the only raises under attack
were those given to Mackron and Ojeda in 1996 and 1997, the
special-remedy paragraph stated as follows (emphasis added):
MIRAMAR SHERATON HOTEL 1239

WHEREFORE . . . the General Counsel seeks an Order
requiring that the Respondent promptly rescind the wage
increases awarded Ojeda and Mackron described above,
and make whole all other employees in the Unit by award-
ing them comparable, retroactive wage increases for the
time period from May 1, 1996, through the effective date
of the rescission of the wage increases for Mackron and
Ojeda. The retroactive wage increases should be compa-
rable in proportion to those awarded Mackron and Ojeda.

It was evident from colloquy of record on day 1 of trial pro-
ceedings that the architects of this proposed remedy had little
idea what it might concretely entail. Certainly, no attempt had
been made to compute an ultimate, dollar “number” to propose
to the Respondent for possible case-settlement purposes. In
fact, it is reasonably clear that no attempt had been made even
to reduce these vaguely-stated remedy demands to something
resembling a formula by which it could be determined how
much money it would take to make each of the other employees
in the bargaining unit “whole” for the alleged violations, i.e., a
formula which might more clearly illuminate the shadowy no-
tions of “awarding retroactive wage increases to all other em-
ployees in the Unit” which “should be comparable in propor-
tion to those awarded to Mackron and Ojeda.” Indeed, those
responsible for the proposed remedy had not yet come up with
answers to other questions critically affecting “compliance” and
settlement possibilities. Thus, the colloquy indicates that the
General Counsel was unable to define what steps, exactly, the
Respondent was expected to take to comply with the injunction
to “promptly rescind the wage increases”—an injunction of
critical significance under the proposed remedy because it was
only by such a “rescission” that the Respondent’s ongoing
“backpay” liability to “other employees” could be capped. In-
deed, the General Counsel could not even identify in specific,
“cent-per-hour” terms how much of Mackron’s and Ojeda’s
hourly pay was supposed to be “rescinded.” Moreover, bringing
into even sharper relief the ambiguities and impracticalities
inhering in the idea of “rescinding” a series of pay raises given
to two workers over a two-year period, the General Counsel
had not yet arrived at an answer to an even more provocative
question: What could “promptly rescind the wage increases”
possibly mean as applied to Ojeda, who had quit the Respon-
dent’s employ long before this case came to trial? Rather, coun-
sel for the General Counsel was obliged to rebuff all such in-
quiries by declaring woodenly that any such questions “will be
determined after litigation . . . [as] a compliance matter.” Not
surprisingly, the General Counsel’s routine taking of a “no-
position” position when it came to nuts-and-bolts compliance
questions under the requested remedy had a rather profound
tendency to confound, if not to foreclose, any possibility of
meaningful settlement discussions.
When the complaint was amended and expanded on May 21,
1999, to attack the December 1995 merit raises and retroactive
payments to Mackron, Ojeda, and Tolentini, an additional rem-
edy paragraph was incorporated, a paragraph addressed to those
particular alleged violations alone, as follows (emphasis
added):

WHEREFORE . . . as part of the remedy for the unfair la-
bor practices alleged in new subparagraphs 8A, 9A and
9B, the General Counsel seeks an Order requiring that Re-
spondent promptly make whole all other cashiers em-
ployed in Respondent’s Café and in the bargaining unit
(other than Mackron Ojeda, and Tolentini) by awarding
said cashiers wage increases and retroactive increases for
[a] period from December 1, 1995, until the date on which
Respondent pays such comparable wage and retroactive
increases to said cashiers. Said increases should be com-
parable in proportion to those awarded Mackron, Ojeda
and Tolentini on or about December 1, 1995.

Again, the latter paragraph was specifically intended to address
the December 1995 pay actions affecting the three employees,
but not to supersede the original remedy pleading associated
with the subsequent pay raises given to Mackron and Ojeda.
Accordingly, the complaint as amended contains both of the
remedy pleadings quoted above, each one focussing on differ-
ent sets of pay actions.
Of course there is an abiding uncertainty common to each of
the foregoing paragraphs insofar as they invoke the notion of
“retroactive increases” which are to be “comparable in propor-
tion” to those given to the favored employees. But other fea-
tures of the remedies as expressed in the amended complaint
are remarkable less for their ambiguity than for their seemingly
arbitrary inconsistencies and other anomalous qualities. Thus,
as I parse the remedy proposed in the amended complaint for
the December 1995 pay actions, the formulation appears to
differ in the following significant ways from the formulation of
the remedy proposed for the subsequent raises to Mackron and
Ojeda in 1996 and 1997: First, unlike the remedy for the latter
raises, the remedy for the December 1995 pay actions does not
speak of “rescinding” the raises and retropay given to the fa-
vored three employees. Second, although the merit raises given
to the favored three in December 1995 had been made retroac-
tively effective to dates 10 to 11 months earlier (Tolentini and
Ojeda’s to February 1, 1995, Mackron’s to January 1, 1995),
the General Counsel’s proposed “backpay” remedy for these
violations requires “comparable-in-proportion” raises to other
cashiers to be made retroactively effective only to December 1,
1995. Third, and especially significant in terms of the scope of
the requested “make-whole” remedy for the December 1995
pay actions, it appears that the class of beneficiaries of any such
remedy would be confined simply to “cashiers employed in the
Respondent’s Café (other than Mackron, Ojeda, and Tolen-
tini),” and not to “all other employees in the Unit,” as provided
in the remedy proposed for the 1996–1997 raises to Mackron
and Ojeda. (Nevertheless, the bewildering syntax of this plead-
ing leaves some room for doubt about even this.69) Fourth, it

69 The beneficiary class is identified in the supplemental remedy
paragraph as “all other cashiers employed in Respondent’s Café and in
the bargaining unit.” And this phrase—particularly the italicized
words—might be construed, as again broadening the beneficiary class
to “all other employees in the bargaining unit.” However, the more
restrictive phrase said cashiers repeatedly appears thereafter, and,
considering that overall context, perhaps the best way to understand the
syntactically awkward formulation of this remedy is to construe the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
still remains quite unclear why the General Counsel sought
backpay for “cashiers-only” for purposes of remedying the
December 1995 pay actions, while seeking backpay for the
vastly broader class of “all other employees in the Unit” for
purposes of remedying the later pay raises to Mackron and
Ojeda.
Finally, and perhaps most critically baffling of all, are the
seeming inconsistencies of approach when it comes to the ques-
tion of what the Respondent must do to put a cap on what the
General Counsel sees as its ongoing liability for the different
increments of “backpay” supposedly owed under the different
“make-whole” remedies. In fact, depending on which pay ac-
tion you asked about, you could receive radically different an-
swers from the remedy pleadings in the amended complaint.
Thus, it seems clear enough that the General Counsel envisions
that the date on which the Respondent obeys the injunction to
“promptly rescind” the 1996 and 1997 raises given to Mackron
and Ojeda will be the capping or cutoff date for purposes of the
Respondent’s backpay liability to “all other employees in the
Unit” for those particular raises. (Here the hardest thing to un-
derstand is what the General Counsel envisions the Respondent
must do, exactly, to “rescind” the 1996 and 1997 raises in ques-
tion.) However, to cap its liability for the December 1995 pay
actions, the Respondent must first give “comparable wage and
retroactive increases” to the “other cashiers.” And here, by
contrast, the hardest thing to understand is what the General
Counsel means, exactly, by “comparable wage and retroactive
increases.” (Nor does it contribute any additional illumination
to restate this ephemeral notion as “comparable in proportion
to” the offending pay actions.)
2. Proposed Board Order in the General Counsel’s brief
By the conclusion of this trial, the only thing that was rea-
sonably clear about the extraordinary remedies so vaguely and
unevenly described in two different paragraphs of the amended
complaint was that the authors of the proposed remedy either
had not devoted much thought to what the Respondent would
have to do to comply, or, having thought long and hard, hadn’t
come up with any answers—at least none they cared to make
public. Indeed, as far as I could tell, counsel for the General
Counsel and those for whom she spoke were wholly unable
(and not just unwilling) to answer questions critically affecting
what the Respondent was supposed to do under the General
Counsel’s proposed remedy, and, in turn, the calculations of
any backpay supposedly due to “other employees” under the
two, quite different “make whole” provisions set forth in the
amended complaint. Accordingly, in the hope of getting the

ach.
vasion.
words and in the bargaining unit as simply an artless attempt to convey
that “all other cashiers employed in Respondent’s Cafe” referred to
persons working as “bargaining unit cashiers” in The Café, as distin-
guished from supervisors or managers who might also perform “cash-
ier” work in The Café. Alternatively, if, indeed, the author of this
pleading was not merely being artless in this regard, but instead some-
how intended by this remedy pleading to leave wiggle room to seek
“backpay” for employees other than “cashiers in the Café” as a remedy
for the December 1995 pay actions, such an intention was so artfully
obscured as to be invisible—and independently deplorable for its coy-
ness of expression.
responsible parties to think more concretely about the proposed
remedy, I requested at the conclusion of the trial that the Gen-
eral Counsel and the Union spell out exactly what affirmative
remedial action they expected the Respondent to take—
moreover, to spell it out in the form of a coherent Board Order,
one which could pass muster against attack for vagueness, or
for giving virtually limitless discretion to a compliance officer.
Both prosecuting parties honored that request in their briefs.
The Board orders proposed by the General Counsel and the
Union are in certain respects quite similar, but in at least two
important respects (as noted in subsec. C, below) are
fundamentally different in appro
As I show below by repeating critical passages from the
General Counsel’s submission, the latest version is more
lengthy and more cumbersomely worded than in any previous
expression. It is also so studded with footnotes and incidental
comments and qualifiers that it mocks the Board-order format
which it pretends to observe. Worse, while it contains some
faintly familiar ideas, it introduces so many novel elements and
formulations as to amount to an essentially different set of re-
medial demands from those made previously. Worse still, while
the General Counsel’s proposed order eliminates one ambiguity
pervading previous versions (it scraps the ambiguous notion of
“retroactive wage increases” to other employees which must be
“comparable in proportion to” the raises given to the favored
workers) it does so only by seizing arbitrarily on the date and
the amount of the “highest” raise given to any of the three fa-
vored employees at various points as the measures of how
much money should be paid to other employees to make them
“whole.” Thus, when it comes to remedying the allegedly
unlawful December 1995 pay raises and retroactive payments,
the General Counsel has selected the 75-cent hourly pay raise
to Tolentini and the $1282.80 retropay he received—and not
the lesser raises and retropay amounts then received by Mack-
ron and Ojeda—as the base numbers for calculating the retroac-
tive pay raises and one-time retropaychecks the Respondent is
said to owe to the other cashiers in The Café (and only to the
other cashiers). Similarly, under the General Counsel’s pro-
posed scheme, Mackron’s $3 raise becomes the hourly amount
owed to “all other employees in the bargaining unit” starting as
of May 1, 1996; and Mackron’s 50-cent raise on May 1, 1997,
becomes retroactively tacked-on to the backpay to be paid to all
other unit employees as of May 1, 1997.
Worst of all, the General Counsel’s proposed remedial order
continues to mumble indistinctly when it comes to one of the
most important abiding questions of all: What can or must the
Respondent do to stop the backpay clock from continuing to
tick away? As we shall see, the proposed order pretends to
address this question by introducing a wholly new concept, that
of a “prospective rescind[ing]” of the offending pay raises.
However, the new concept remains a baffling one, for
“prospective rescission” is hardly a self-defining expression,
and the footnote which purports to clarify the concept is itself a
study in obscurantism and e
These are the opening passages of the “affirmative action”
section of the Order the General Counsel asks the Board to
sign, together with the footnote which purports to clarify what
“rescind prospectively” means:
MIRAMAR SHERATON HOTEL 1241

[The Respondent shall] take the following affirmative ac-
tion:

1. Rescind prospectively: [fn. 20]]

(a) the wage increases awarded employees Deborah Mack-
ron, Alicia Ojeda, and Art Tolentini on or about December
1, 1995;

(b) the wage increases awarded Mackron on or about May
1, 1996, and on or about May 1, 1997;

(c) the wage increases awarded Ojeda on or about June 5,
1996, on or about August 21, 1996, and on or about Au-
gust 21, 1997.

. . . .

[fn. 20 text] By analogy, in cases involving unlawful uni-
lateral increases in employee benefits, the Board does not
routinely order retroactive rescission, but orders revoca-
tion only if the union so requests. [“E.g.” citations to uni-
lateral-change-in-‘benefits” cases are omitted.]

Before turning to the “make-whole” provisions of the Order
proffered by the General Counsel, we need to pause to pursue
some threshold questions of definition that will have critical
significance to the make-whole provisions: Do you understand
now what the General Counsel means by “rescind prospec-
tively?” Neither do I. Equally important, do you understand any
more clearly what action the Respondent is supposed to take to
accomplish this “prospective rescission?” Me neither. And can
you tell when or under what conditions the Respondent must
perform whatever act or acts are contemplated by the notion of
“prospective rescission?” Nor can I, except by making an as-
sumption about what the General Counsel intended by incon-
clusively invoking the “analogy” in the quoted footnote. The
main question for investigation is this: Why did the General
Counsel proffer an analogy to the Board’s unexceptionable
practice in “cases involving unlawful unilateral increases in
benefits of leaving it to the union’s option whether or not the
employer must “rescind” such benefits? Does the General
Counsel mean to suggest in this case—which does not allege or
otherwise “involve” any unlawful unilateral changes or other
“bargaining” violations under Section 8(a)(5)—that no “rescis-
sion” of the offending wage increases will be necessary unless
the Union “so requests?” Seemingly so, otherwise footnote 20
is not just obscure in its apparent attempt to clarify a remedial
point, but is entirely devoid of any significance to the discus-
sion. (However, if that’s what was intended, why was the Gen-
eral Counsel so obviously unwilling to say so in plain English?)
And even assuming in any case that it would take the Union’s
“request” to trigger a duty on the Respondent’s part to “re-
scind” the offending pay raises, we have come back round the
circle to the question which the General Counsel has unwor-
thily sidestepped in each new expression of the proposed rem-
edy, namely: What action, exactly, would the Respondent be
required to take to “rescind” the raises in question, assuming
that the Union were to “request” that it do so? (Below I will ask
a more interesting question still: What happens under the Gen-
eral Counsel’s proffered order if the Union does not “so re-
quest?”) In short, we are still left in doubt about what “rescind”
means when referring to raises—indeed, a series of raises—
already conferred; and we are left even more baffled as to what
“rescind” could mean in Ojeda’s case, given her ex-employee
status.
It may be asked why any of the questions posed here (with
more to follow) need to be answered now, instead of being
“deferred to compliance,” as the General Counsel clearly would
prefer. To start with, it matters because the General Counsel
has recommended that the Board issue an admittedly unprece-
dented form of remedial Order, one which, moreover, the Gen-
eral Counsel has described in significantly different terms over
the course of this litigation, and one whose very meaning and
basic mechanics remain in significant doubt—even, apparently,
in the minds of its creators. To sign off on the form of Board
Order most recently proposed by the General Counsel without
having clearer answers to such questions beforehand would be
like buying the proverbial pig in a poke. The answers sought
here (and below) also matter profoundly to notions of fairness
and due process in the administration of the Act. If the Board
signed the proffered Order, a compliance officer would have no
guidance whatsoever from the murky text of the order, and thus
virtually unlimited discretion to answer any of these questions
any way she/he chose. Thus, to take an especially pertinent
example, if this Order were adopted, one of the many important
compliance questions would necessarily be what the Respon-
dent can or must do to cap its ongoing liability for “backpay.”
As I discuss next, it’s not hard to find in the text of the prof-
fered order a superficial answer to this question: Ongoing
backpay liability will not be capped until whatever date the
Respondent takes whatever “prospective-rescission” action the
General Counsel wants it to take. However, the real difficulties
are in determining what this duty of “prospective rescission”
entails—especially if, as it appears, the General Counsel in-
tends it to be only a “conditional” duty, one triggered only by a
“request” of the Union.
Set forth below are the “make-whole” provisions of the Or-
der the General Counsel urges the Board to embrace, provisions
which incidentally make it clear that it is only by “rescinding”
the unlawful pay raises “prospectively” that the Respondent
will have stopped the backpay clock from continuing to tick on.
(In each case below, the italics are my own, and I have omitted
footnotes appended by the General Counsel, which are irrele-
vant for these purposes.)
The first provision identifies the basis for computing the
backpay owed to “other cashiers” (and to other cashiers alone)
to remedy the December 1995 pay raises and retroactive pay-
ments given in varying amounts to the three favored workers.
This provision states:

2. Make whole all food and beverage cashiers other than
Mackron, Ojeda, and Tolentini by paying each such em-
ployee:

(a) an amount equal to the $1282.80 retroactive payment
awarded Tolentini on or about December 1, 1995, with in-
terest, through the effective date on which Respondent re-
scinds prospectively the 1995–1997 wage increases
granted Mackron, Ojeda and Tolentini.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
The next example defines the backpay obligation supposedly
owed to a far broader class of putative backpay recipients to
remedy the $3 raise to Mackron of May 1, 1996, and the 50-
cent additional raises both she and Ojeda received in 1997:

3. Make whole all employees in the bargaining unit other
than Mackron, Ojeda, and Tolentini by paying each bar-
gaining unit employee:

(a) an amount equal to the $3 per hour wage increase
awarded Mackron on or about May 1, 1996, with interest
through the effective date on which Respondent rescinds
prospectively the 1995-1997 wage increases awarded
Mackron, Ojeda and Tolentini, and

(b) an amount equal to the $.50 per hour wage increase
awarded Mackron on or about May 1, 1997, with interest,
through the effective date on which Respondent rescinds
prospectively the 1995-1997 wage increases awarded
Mackron, Ojeda and Tolentini or, alternatively, an amount
equal to the $.50 per hour wage increase awarded Ojeda
on or about August 21, 1997, with interest, through the ef-
fective date on which Respondent rescinds prospectively
the 1995-1997 wage increases awarded Mackron, Ojeda
and Tolentini.

By now, the key elements of the General Counsel’s ultimate
approach to the extraordinary remedy should be apparent, even
if the meaning of or reasoning behind some of those elements
remains elusive: Significantly, the highest raise or retroactive
payment “awarded” to any of the three at any given point be-
comes the arbitrarily-selected measure of the ongoing rate of
the backpay said to be owed and continuing to accrue to “all
other employees in the bargaining unit.” Again, it is clear that
under the proposed order, the Respondent’s act of “rescinding
prospectively” all of these raises (whatever that means) will be
the only act which will put a cap on the Respondent’s ongoing
backpay liability.
With all this in mind, let us now return to key questions
raised earlier, and to the General Counsel’s answers, to the
extent they are discernible. But this time let’s focus on the prac-
tical implications of those apparent answers: Does the General
Counsel contemplate under this proposed order that the Re-
spondent will operate under a duty to “rescind prospectively”
any given offending raise if the Union “so requests?” Appar-
ently so, if the footnote 20 “analogy” was genuinely intended to
clarify what is meant by “rescind prospectively.” And if this is
so, one necessary implication is that the injunction to “rescind
prospectively” becomes only a conditional one, one triggered
only if the Union exercises the option to “so request.” Again,
however, if this is so, we still don’t know what the Respondent
is supposed to do to honor such a request. But we haven’t even
gotten yet to perhaps the most difficult questions of all lurking
beneath the General Counsel’s proposed order: What happens if
the Union does not “so request?” Specifically, what happens to
the Respondent’s backpay liability for, say, Mackron’s $3 raise
if the Union elects not to “request’ that it be “rescinded?” The
apparent answer under the proposed order is as simple as it is
odd—the Respondent’s backpay obligation to “all [other] em-
ployees in the bargaining unit” continues to grow at the rate of
$3 dollars for every hour worked by all other employees since
May 1, 1996 (with an additional 50-cent per hour to be tacked-
on as of May 1, 1997), plus interest. . . . Forever.
If the head-scratching oddity of this idea alone does not jus-
tify rejecting the proposed order, consider the further practical
implications of the scheme: If the Respondent’s duty to “re-
scind prospectively” is only a conditional one, depending on
what the Union wants (as in the case of “union-option” reme-
dies for unilateral-change-in-benefits violations), but if the act
of “rescinding prospectively” is used at the same time to define
the point at which the Respondent’s backpay liability becomes
capped, this necessarily leaves the Union in the position of
being able to engineer it so that the Respondent’s ongoing
backpay liability can never be capped. All the Union need “do”
to keep the backpay mounting is to do nothing, i.e. refrain from
“requesting” the Respondent to “rescind” the various unlawful
raises. Indeed, it’s almost impossible to envision a situation in
which the Union, armed with that kind of power, would choose
to “request” that the Respondent take a “rescission” action
which, under the General Counsel’s proposed Order, would
effectively kill the golden goose. In my view, this is an absurd
outcome. And even though the General Counsel may not have
envisioned precisely such an outcome, I remain at a loss to
understand what the architects of this proposed order did envi-
sion as a backpay-capping event that would avoid such an out-
come.70 And frankly, I doubt that those speaking for the Gen-
eral Counsel ever had anything clearly in mind when, in the
ultimate formulation of the extraordinary remedial request, they
not only introduced the novelty that the Respondent must “re-
scind’ the offending raises “prospectively” (apparently meaning
“upon the Union’s request”), but also made the date of such a
rescission the effective date on which the backpay cash-register
would stop ringing.
Summing up: The General Counsel effectively foreclosed
any possibility of meaningful settlement discussions by insist-
ing from the beginning that any settlement required the Re-
spondent to submit to and comply with an extraordinary back-
pay remedy which the General Counsel nevertheless was un-
able to express in other than Delphic terms. In fact, the General
Counsel has at various stages advanced significantly different
terms for compliance, none of them susceptible of retranslation
into anything like a formula through which the demanded
backpay might be calculated. The General Counsel’s proposed
order is not a prescription for remedying proven violations and

70 What other act or event might the General Counsel have envi-
sioned as working to cap the supposed backpay liability? There is no
answer in the proposed order, but one possibility comes to mind: As-
suming that the Respondent somehow could determine what the Gen-
eral Counsel means by “rescind,” the Respondent’s own “unilateral
rescinding” of the offending raises might conceivably do the job. But
the General Counsel probably wouldn’t buy that approach, especially
not if we take seriously the “analogy” to “unilateral-change-in-benefits”
remedies invoked in the General Counsel’s fn. 20, above. Thus, it’s
hard to see how the same General Counsel who, for remedy purposes,
sees a compelling remedial analogy between the violations in this case
and the violations in a “unilateral-change” case, could accept the notion
that the Respondent could cap its ongoing backpay liability by itself
acting unilaterally to “rescind” the offending raises.
MIRAMAR SHERATON HOTEL 1243
for otherwise promoting the health and well-being of policies
embedded in the Act; it is simply an open-ended invitation to
arbitrary government action. In the next subsection I will ex-
plain why I deem it unnecessary for “remedy” purposes to or-
der the Respondent to pay “backpay” to “other employees.” But
even if I were wrong in that judgment, I would still find that a
“make-whole” remedy would be inappropriate to impose in the
unique circumstances of this case, where the General Counsel
has never been able to tell the Respondent in any concrete
terms, much less consistent concrete terms, what it must do to
remedy the alleged violations—or, equally important, what
steps the Respondent could take to put a cap on its supposedly
ongoing backpay liability. I regard it as fundamentally offen-
sive to notions of fairness and due process—and, not least,
contrary to the Board’s own policies strongly encouraging vol-
untary settlements before trial—for the General Counsel to
bring a respondent to trial without being able to identify with
reasonable clarity what the respondent could do to avoid the
trial. It is doubly offensive that even with the benefit of the
passage of more than a year after issuing the original complaint,
the General Counsel’s proposed remedial order still suffers
terminally from opacity of intention.
C. The Union’s Proposed Board Order
On brief, the Union has proposed an order for a “monetary
remedy” which is in many ways similar to the General Coun-
sel’s proposed order, particularly insofar as it uses the highest
unlawful raise or retroactive payment conferred at any given
point as the measure of the backpay necessary to make “other”
workers “whole.”71 However, in a significant departure from
the General Counsel’s proposed remedy for the December 1995
pay actions (i.e., backpay for “cashiers-only”), the Union’s
proposed order envisions a unitwide backpay order (i.e., back-
pay to “all employees represented by Local 814 other than
Mackron, Ojeda, and Tolentini”). Finally, in an even more radi-
cal departure from the General Counsel’s position, the Union’s
proposed order does not call for any “rescinding” of any of the
unlawfully-conferred pay raises, “prospectively” or otherwise.
(Necessarily, therefore, under the Union’s scheme, any unilat-
eral “rescission” of the unlawful raises by the Respondent
would not work to cap the Respondent’s ongoing backpay li-
ability.) Rather, the Union’s own proposed Order envisions a
wholly different backpay-capping event, one supposed to
emerge as a result of some future collective-bargaining process.
Thus, by way of representative example, under the Union’s
Order the Respondent would “remedy” the $3 raise to Mackron
by,

Mak[ing] whole all employees represented by Local 814
other than Mackron, Ojeda and Tolentini by paying each

71 Thus, like the General Counsel, the Union seizes on the 75-cent
hourly pay raise to Tolentini and the $1282.80 retropay he received as
the basis for “making whole” “other” unit employees for the December
1995 pay actions affecting the favored three. Likewise, under the Un-
ion’s scheme, Mackron’s $3 raise on May 1, 1996, becomes the meas-
ure of backpay accruing to other employees (“all” of them) on and after
that date, and Mackron’s 50-cent raise on May 1, 1997, is to be reme-
died by an additional 50-cent raise to “all” other bargaining unit em-
ployees to be made retroactive to the latter date.”
such employee . . . an amount equal $3.00 per hour wage
increase . . . with interest, effective as of May 1, 1996 and
continuing until Respondent and Local 814 reach agree-
ment on the terms of a new collective bargaining agree-
ment or until a bona fide impasse is reached on wage rates
in negotiations for a new collective bargaining agreement.
[Emphasis added.]

To the extent the Union’s proposed remedy is similar to the
General Counsel’s, I have already indicated why I disagree.
Neither do the departures by the Union from the General Coun-
sel’s position strike me as steps in a better direction. The Union
posits that the Respondent’s backpay liability will remain ongo-
ing until the Union and the Respondent shall have reached ei-
ther agreement on a “new collective bargaining agreement,” or
“impasse” on wage rates in the context of bargaining for a “new
collective-bargaining agreement.” What is lacking in the Un-
ion’s brief is any defense of this “agreement or impasse” provi-
sion as an appropriate device for capping a supposed “backpay”
obligation arising from bribes and payoffs made by the Re-
spondent to a tiny minority of antiunion workers. Especially in
the absence of defense or explication, the future-bargaining
linkage proposed by the Union seems entirely arbitrary.
D. A “Make-Whole” Remedy is Unnecessary and Inappropriate
to Remedy the Violations
While the Act gives the Board broad discretion when it
comes to fashioning remedies for unfair labor practices, the
operative word is “remedies,” and Board orders, which are
merely “punitive” in character, will be struck down for that
reason. Republic Steel Corp., 311 U.S. 7, 11–12 (1940), and
authorities cited (1940). See also Auto Workers v. Russell, 356
U.S. 634. 643 (1958); Carpenters Local 60 v. NLRB, 365 U.S.
651 (1961). Moreover, any monetary remedy ordered by the
Board must be “tailored to the actual, compensable injuries
suffered.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984). As
discussed below, I think the Board would overreach its statu-
tory powers if it were to embrace even the concept of a “make-
whole” order in the proven circumstances of this case.
Neither the General Counsel nor the Union claims to have
discovered precedent for the make-whole order they commonly
seek, albeit in differing terms. And virtually all of the cases
they cite in their briefs as collaterally instructive are plainly
inapposite to this case. (The General Counsel’s “argument” on
brief in support of the proposed Board Order consists of four
assertive sentences, each followed by case citation. But each of
the assertions is so blandly unremarkable in content, so incon-
clusive in significance, and so peripheral to the questions at
issue that no case citations would have been necessary.72)
72 Essentially everything the General Counsel has to say in defense
of the Board Order proposed on brief is set forth in the following pas-
sages of the government brief (pp. 21–22; emphasis added):
The Board has fashioned substantial equitable remedies in response to
a variety of situations and violations, including those involving harm
created by an employer’s discriminatory conferral of improved wages
and benefits upon employees. See, e.g., B&D Plastics, 302 NLRB 245
(1991) (Board ordered new election); Honolulu Sporting Goods Co.,
239 NLRB 1277, 1283 (1979) (Board issued bargaining order). The
Board has order [sic] the payment of wage increases as part of its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
However, the Union cites one case on brief, Rubatex Corp., 235
NLRB 833 (1978), as “a case with facts remarkably close to
those presented here,” and the Union further implies that the
remedy ordered in that case is not meaningfully different from
the remedy sought by both prosecuting parties in this case.73 I
disagree on both counts. This case is materially distinguishable
on its facts from Rubatex for substantially the same reasons
explained by the Board in Eby-Brown Co., L.P., 328 NLRB 496
(1999) (explaining “Amended Remedy” and distinguishing
Rubatex). Significantly, in Eby-Brown, the Board rejected a
Rubatex-influenced remedy recommended by the administra-
tive law judge which was to some extent similar in approach to
that of the prosecuting parties herein, and the Board substituted
instead a remedial order which is a far cry from what is sought
in this case by the General Counsel and the Union. Moreover,
Eby-Brown (which, incidentally, is not invoked by either the
Union or the General Counsel) is itself critically distinguishable
in legal context and significance from this case: There, the
complaint alleged and the Board found that the employer had
unlawfully “den[ied] bonuses, or grant[ed] reduced bonuses to
[three identified workers] because of their union support and
activities.” Here, as I discuss next, the situation is materially
different.
As noted in section I,B., above, the General Counsel has as-
serted in passing remarks on brief that there exists a class of
“bargaining unit employees other than Tolentini, Mackron, and
Ojeda . . . who were denied pay raises because they did not
oppose the Union and support Respondent.” It’s hard to start
with to make any sense of this awkwardly inverted and negativ-
ized assertion, doubly so when you recall that the General
Counsel otherwise insists over and over again that Mackron,
Ojeda, or Tolentini received their pay raise “rewards” because
of their uniquely important roles in the decertification cam-
paign—not just because they “opposed the Union and sup-
ported Respondent.” Moreover, trying to harmonize the Gen-
eral Counsel’s contentions and express them in more affirma-
tive terms leads to strangely sterile—indeed, tautological—
results. For example: “The Respondent unlawfully denied pay
raises to everyone who did not behave as Mackron, Ojeda, or
Tolentini did.” (Or, “The Respondent unlawfully denied pay
raises to everyone who was not Mackron, Ojeda, or Tolentini.”)
More important, the complaint never alleged that any employ-
ees were unlawfully “denied” a pay raise; much less that they
were denied a raise “because they did not oppose the Union and

backpay orders. E.M. Krovitz, Inc., 238 NLRB 82, 86 (1978); Davis
Food City, 198 NLRB 94, 99 (1972). Moreover, the Board has
awarded backpay after an employer stated that a wage increase, which
was withdrawn legally, was not granted because of a union’s organ-
izational activities. [I don’t understand the sentence either, much less
its potential significance to the argument.] Sun Chemical Corp., 226
NLB [sic] 646 (1976). The Board has also ordered employers that
have closed their operations illegally to reopen their facility and rein-
state their discharged employees. See Serv-U Stores, 225 NLRB 37
(1976).
Accordingly, in the circumstances herein, the General Counsel urges
that the following order be issued to remedy Respondent’s violations of
the Act.
73 The General Counsel’s brief contains no mention of Rubatex.
support Respondent.” (Still less did the complaint allege that
anyone was denied a raise because s/he “supported the Union.”)
Moreover, the General Counsel has not troubled to identify any
evidence of record which might show that there existed a class
of workers who were “denied” pay increases because they did
not “oppose the Union or support Respondent”—an imagined
class which the General Counsel apparently equates with any
workers who did not receive the “huge,” “disproportionately
large,” “blatantly excessive” and “unjustified” increases which
the General Counsel contends were given for discriminatory
reasons to Mackron, Ojeda, and Tolentini because of their
unique importance. In fact, there is no evidence of record that
might support the General Counsel’s assertion that there existed
a class of employees (never mind which employees) who would
have received the “unjustified” wage increases in question but
for their failure to “oppose the Union and support Respondent.”
Indeed, the General Counsel’s rhetoric, emphasizing the “ex-
cessive” and “unjustified” nature of the raises given to the fa-
vored three because of their uniquely visible and important
roles in the antiunion movement makes it hard to take seriously
the notion that the Respondent would nevertheless have given
raises in these same “blatantly excessive” amounts to anyone
else, much less to all the other employees who met the far less
rigorous criteria of being workers “who did not oppose the
Union and support Respondent.”74 Rather, in the end, it appears
that the General Counsel grounds all such assertions on nothing
more than a kind of reflexive and reality-blind presumption—
that for every payoff or bribe to any of the three workers said to
be the most active and influential in the antiunion movement, it
follows necessarily that every other employee in the bargaining
unit somehow suffered a “loss” in the same amount for which
s/he must be “made whole.” There is no basis in common ex-
perience to presume such a thing, and so, as presumptions go,
this one would have to be understood in a different light, as
something closer to an arbitrary legal fiction. In any case, I
regard it as especially inappropriate to examine such notions
any further where, as here, the General Counsel never alleged
that the Respondent was guilty of pay discrimination against
any other employee or employees.
I have already noted how essentially empty of useful content
is the General Counsel’s inconclusive “argument” in support of
the extraordinary and unprecedented make-whole remedy The
Union’s arguments for such a remedy are also largely sub-
stance-free, relying as they do on familiar nonsequiturs and
conclusionary, circular, and unconvincing formulations. Thus,
purporting to explain the assertion that “a monetary remedy is
necessary to reverse the discrimination practiced by the [Re-
74 It is a significant inconsistency for purposes of this remedy discus-
sion that the class-description employed by the General Counsel in the
quoted passage (“bargaining unit employees other than Tolentini,
Mackron, and Ojeda . . . who were denied pay raises because they did
not oppose the Union and support Respondent”) is quite different from
and cannot possibly be coextensive with the class of “all other employ-
ees in the bargaining unit” who are to be “made whole” under the Gen-
eral Counsel’s proposed backpay scheme for remedying the 1996 and
1997 raises to Mackron and Ojeda. For surely, there must be many
among that backpay-beneficiary class who did “oppose the Union and
support Respondent.”
MIRAMAR SHERATON HOTEL 1245
spondent],” the Union simply reasserts without further explica-
tion that “the remaining employees were discriminated against
by failing to receive the equivalent merit raises.” (U. Br. at 65;
emphasis added.)75 I have already addressed the crippling de-
fects in such assertions, and therefore I won’t repeat myself
here.
The Union also implicitly invokes “deterrence” as a basis for
ordering a “monetary remedy,” stating (Id. at 55): “Without a
monetary remedy there is no incentive for an employer to com-
ply with the terms of the National Labor Relations Act.” This
argument deserves brief additional discussion: An order having
substantial “monetary’ impact on the Respondent surely would
have a tendency to deter the Respondent from giving bribes or
payoffs to selected antiunion employees in the future. But that
would be true of all fines or other monetary “penalties,” and,
therefore, it is not sufficient justification that the “monetary
remedy” would have a tendency to deter future unlawful action.
See Republic Steel Corp., supra (311 U.S. at 12):

[I]t is not enough to justify the Board’s [remedial] re-
quirements to say that they would have the effect of deter-
ring persons from violating the Act. That argument proves
too much, for if such a deterrent effect is sufficient to sus-
tain an order of the Board, it would be free to set up any
system of penalties which it would deem adequate to that
end.

There is much reason to believe on this record that the
“make-whole” remedy envisioned (however vaguely or incon-
sistently) by the prosecuting parties was born out of a belief
that a “mere” cease-and-desist order (see last footnote) could
have little or no value in deterring violations such as those
found in this case, and that the only effective way to prevent
repetitions of the same kinds of violations in the future would
be to hit the Respondent hard in the pocketbook with a “back-
pay” order—and never mind that the Union never charged, the
General Counsel never alleged, and no one ever proved that any
other employees had ever suffered any identifiable monetary
“losses” as a consequence of the Respondent’s misconduct. To
me, this makes the proposed remedy not merely extraordinary,
but essentially punitive in its conception, and rejectable for that
very reason.
E. Concluding Discussion; Recommended Order
The prosecuting parties, particularly the Union, surely over-
state the case when they posit the existence of only two reme-
dial alternatives—either a “mere” cease-and-desist-order, or an
order for “affirmative-action” featuring backpay to other em-
ployees. As I see it, the remedial choices are not at all that
stark. Neither is any affirmative-action order short of a backpay
order without deterrent effect. Thus, my recommended remedy

75 See also id. at 55, where the Union states in an essentially tail-
chasing passage:
If only a cease and desist order is issued, Respondent will have gained
the fruits from its unlawful conduct and will not be required to under-
take any action which would effectively remedy its unfair labor prac-
tice. Orders limited to mere cease and desist orders do not effectuate
the policies of the Act because they encourage employers to engage in
such conduct since there is no effective remedy.
includes not just a cease-and-desist order, but an order requir-
ing the Respondent affirmatively to preserve all payroll and
related records and to make such records available to the Re-
gional Director upon the latter’s request, for a period deemed
reasonable by the Regional Director but not to exceed 2 years
from the date the Respondent unmistakably agrees to comply.
And presumably, by thus giving the Regional Director such
ongoing oversight of the Respondent’s pay practices, the Re-
spondent would be significantly inhibited from engaging in the
kinds of rank pay favoritism which I have found occurred in
this case.
Accordingly, on these foregoing findings of fact and conclu-
sions of law and on the entire record, I issue the following rec-
ommended76
ORDER
The Respondent, Miramar Hotel Corporation d/b/a Miramar
Sheraton Hotel, Santa Monica, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Giving pay raises or any other form of financial induce-
ment to Art Tolentini, Deborah Mackron, or to any other em-
ployee or employees to reward or encourage their initiating or
supporting a movement to decertify Hotel Employees and Res-
taurant Employees Union Local 814, AFL–CIO or any other
labor organization.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) For a period deemed reasonable by the Regional Director
but not to exceed 2 years from the date the Respondent unmis-
takably agrees to comply with this Order, preserve and, within
14 days of a request, make available to the Board or its agents
for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and
all other records necessary to monitor the Respondent’s com-
pliance with this Order.
(b) Within 14 days after service by the Region, post at its ho-
tel in Santa Monica, California, copies in English and Spanish
of the attached notice marked “Appendix B.”77 The copies of
the notice to be posted shall be on forms provided by the Re-
gional Director for Region 31. Immediately after they are re-
ceived from the Regional Director, they shall be signed by the
Respondent’s authorized representative and posted and main-
tained by the Respondent for 60 consecutive days in conspicu-
ous places, including all places where notices to employees are
76 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
77 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice printed in English and Spanish to all current
employees and former employees employed by the Respondent
at any time since December 1, 1995.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

APPENDIX A
Ann Cronin-Oizumi, Esq., for the General Counsel.
Joseph E. Herman and Melissa L. Goulet, Esqs. (Morgan,
Lewis & Bockius), of Los Angeles, California, for the Re-
spondent-Employer.
Jonathan E. Davis, Esq. (Davis, Cowell & Bowe), of San Fran-
cisco, California, for the Charging Party-Union.
DECISION AND ORDER PARTIALLY
DISMISSING COMPLAINT
PRELIMINARY STATEMENT OF THE CASE; ITS
UNIQUE PROCEDURAL HISTORY; THE 10(b) ISSUE IT
RAISES AT
THE THRESHOLD
TIMOTHY D. NELSON, Administrative Law Judge. At the
heart of both of the cases (Miramar Hotel Corporation d/b/a
Miramar Sheraton Hotel and Hotel Employees and Restaurant
Employees Union Local 814, AFL–CIO and Miramar Hotel
Corporation d/b/a Miramar Sheraton Hotel and Hotel Employ-
ees and Restaurant Employees Union Local 814, AFL–CIO and
Art Tolentini, Petitioner. Cases 31–CA–22971 and 31–RD–
1317) is the claim, set forth in the General Counsel’s complaint
in Case 31–CA–22971 that Miramar Hotel Corporation d/b/a
Miramar Sheraton Hotel (the Respondent) violated Section
8(a)(3) and (1) of the National Labor Relations Act when, over
the course of the 29-month pendency of the decertification
election-petition in Case 31–RD–1317, it granted a series of
wage increases to two voting unit employees, Deborah Mack-
ron and Alicia Ojeda, “in order to encourage [their] anti-union
efforts, and in order to discourage other employees from sup-
porting the Union and/or engaging in union or other [protected]
concerted activities.” As further described below, I conducted a
2-day hearing in Los Angeles, California, on November 30 and
December 1, 1998, during which the merits of the complaint
were not litigated, only the facts relevant to the Respondent’s
10(b) defense.
The Union in question is Hotel Employees and Restaurant
Employees Union Local 814, AFL–CIO, the historical repre-
sentative of a unit of some 250 hotel and food and beverage
service workers employed at the Respondent’s Santa Monica
hotel and restaurant facility. The decertification election in
question was held on October 1, 1977, pursuant to a petition
filed on May 26, 1995, by Art Tolentini, a voting unit em-
ployee. Following postelection proceedings held to resolve
challenges, the Regional Director for Region 31 issued a re-
vised tally of ballots indicating that 120 employees had cast
valid ballots against continuing representation by the Union,
108 employees had cast valid ballots for continuing representa-
tion, and 3 persons had cast ballots under challenges that were
not resolved because they could not affect the outcome.1
These cases also involve a unique and confusing series of
procedural developments culminating in the post-complaint
consolidation of the issues raised by the complaint with the
election-objections case in Case-31–RD–1317, a case that had
been transferred to the Board months prior to the issuance of
the Regional Director’s consolidation order. The relevant back-
ground is as follows:
In the immediate aftermath of the election, the Union had
filed a number of objections to alleged preelection misconduct
by the Respondent, none of which concerned the wage-increase
issue that is the subject of these cases. (As elaborated in subse-
quent findings, the Union did not become aware of the wage
increases given to Mackron and Ojeda until sometime in late
November 1997, and the Union did not make the increases the
subject of an unfair labor practice charge in Case 31–CA–
22971 until December 3, 1997.) On March 11, 1998, following
an administrative investigation into the Union’s objections, and
during the pendency of the separate investigation into the Un-
ion’s wage-increase charges, the Regional Director issued a
Supplemental Decision on Objections, Order Directing Hear-
ing, and Notice of Hearing, ordering that a hearing be con-
ducted on 17 enumerated objections, none of them involving
wage-increase issues. A hearing officer designated by the Re-
gional Director thereafter conducted a 5-day hearing in May
1998, and on June 29, 1998, issued a report and recommenda-
tions to the Board, recommending that some of the Union’s
objections be overruled but that certain others be sustained, and
that the election be set aside based on the latter. Both the Union
and the Respondent took exceptions to various aspects of these
recommendations, and those matters are now pending before
the Board. None of those issues is before me for consideration.
On June 5, 1998, during the interval between the closing of
the objections hearing in Case 31–RD–1317 and the issuance of
the Hearing Officers Report and Recommendations, the Re-
gional Director issued a complaint and notice of hearing in
Case 31–CA–22971, alleging that the wage increases given to
Mackron and Ojeda during the preelection period violated Sec-
tions 8(a)(3) and (1). More than 2 months later, however, on
August 26, 1998, by which point the election-objections pro-
ceedings were now pending before the Board, the Regional
Director issued a Second Supplemental Decision on Objections,
Order Directing Hearing, Notice of Hearing, and Order Con-
solidating [the instant] Cases. In pertinent part, the Regional
Director said therein as follows:

This Second Supplemental Decision on Objections is
required to correct an inadvertent omission from my
March 11, 1998 Supplemental Decision [supra]. In the lat-

1 Hearing Officer’s Report and Recommendations respecting objec-
tions, Case 31–RD–1317, dated June 29, 1998.
MIRAMAR SHERATON HOTEL 1247
ter, I neglected to consider certain conduct of the Em-
ployer, the grant of a wage increase [sic], which I learned
of during the investigation of the related fourth amended
unfair labor practice charge filed by the Union on Decem-
ber 3, 1997, in Case 31–CA–22971. Although this conduct
was not specifically alleged as objectionable conduct by
the Union in its timely filed objections, in the interests of
making certain that employees exercise their franchise in
free and informed manner, I have determined to exercise
my authority and treat the alleged conduct as such which
may warrant the setting aside of the election. White Plains
Lincoln Mercury, Inc. 288 NLRB 1133, 1137 (1998).

. . . .

In the Complaint and Notice of Hearing which issued
in related Case 31–CA–22971, this additional conduct is
alleged as unfair labor practices in paragraphs 8(b) and (c),
and 9(b), (c), and (d) therein. The conduct consists of the
grant of wage increases to two unit employees. Inasmuch
as these additional investigative disclosures raise substan-
tial and material factual and legal issues, and are closely
related to and involve the same evidence as certain allega-
tions set forth in the aforementioned Complaint and Notice
of Hearing, I find that the issues raised by these other in-
vestigative disclosures can best be resolved by a hearing
together with the issues raised in the aforementioned
Complaint and Notice of Hearing.
. . . .
IT IS HEREBY ORDERED that a hearing be held
concerning the allegations described supra. . . . IT IS
FURTHER HEREBY ORDERED, pursuant to Section
102.33 of the Board’s Rules and Regulations, Series 8, as
amended, that the allegations described supra in connec-
tion with “Other Investigative Disclosures,” be consoli-
dated with Case No. 31–CA–22971 for the purposes of
hearing, ruling and decision by a duly designated adminis-
trative law judge[2]. . . and that thereafter, Case 31–RD–
1317 be transferred to and continued before the Board in
Washington, D.C.[3]

2 In purporting to act pursuant to Sec. 102.33 of the Board’s Rules
and Regulations, it appears that the Regional Director had specifically
in mind either or both of the following subsections of Sec. 102.33:
Subsec. (4)(c): “The Regional Director may, prior to hearing, exercise
the powers in paragraph (a)(2) and (4) of this section with respect to
proceedings pending in his Region.” Subsec. 4(d): “Motions to consoli-
date or sever proceedings after issuance of complaint shall be filed as
provided in s 102.24 and ruled upon as provided in s 102.25, except
that the Regional Director may consolidate or sever proceedings prior
to hearing upon his own motion. Rulings by the administrative law
judge upon motions to consolidate or sever may be appealed to the
Board as provided in Section 102.26.”
3 In a footnote, the Regional Director advised that “[t]his direction of
Hearing is subject to special permission to appeal in accordance with
Section 102.69(I)(1) and 102.65(c) of the Board’s Rules and Regula-
tions.” So far as this record shows, the Respondent did not seek special
permission from the Board to appeal from the Regional Director’s
consolidated hearing order.
Notwithstanding this, however, my own jurisdiction to hear and de-
cide the “objections” question (i.e., whether the alleged unfair labor

In sum, the Regional Director’s post-complaint consolidation
of the wage-increase issue with an election-objections proceed-
ing has placed the objections case in a jurisdictionally uneasy
posture, with the largest part of it currently pending before the
Board on exceptions to a number of objections issues litigated
in the May 1998 hearing,4 and a relatively smaller part of it
nominally under my own jurisdiction as to an issue that was not
raised or litigated in the already-concluded objections hearing.
Setting aside these procedural anomalies for the moment, it
remains clear that, absent the applicability of some special legal
doctrine warranting a “tolling” of the governing statute of limi-
tations, all but one of the substantive counts alleged in the in-
stant complaint are facially vulnerable to dismissal for untimely
prosecution, because all but one of those counts are based on a
charge filed more than 6 months after the alleged misconduct
attacked in those counts. Thus, as previously noted, the instant
complaint, issued by the Regional Director on June 5, 1998, is
based on the Union’s “Fourth Amended charge” in Case 31–
CA–22971, filed on December 3, 1997. (All other, previously
filed charges in that case were either dismissed or withdrawn.5)

practices would, if committed, amount to misconduct warranting the
setting aside of the election) may depend on whether the Regional
Director had jurisdiction in the first instance to order a consolidation
(on August 26, 1998) of this unfair labor practice proceeding with an
objections case that had arguably escaped the Regional Director’s ju-
risdiction 2 months earlier, following the issuance (on June 29, 1998)
of the Hearing Officer’s Report and Recommendations to the Board.
4 In his June 29, 1998 Report and Recommendations to the Board,
the hearing officer recommended that some of the Union’s objections
be overruled but that certain others be sustained, and that the election
be set aside based on the latter. Both the Union and the Respondent
took exceptions to various aspects of these recommendations, and those
matters are still pending before the Board. None of those issues is be-
fore me for consideration
5 The Union’s original charge in Case 31–CA–22971 was filed on
September 26, 1997; it alleged that the Respondent had committed a
variety of 8(a)(1) violations “[w]ithin the past six months[,]” none of
them related thematically or substantively to the wage-increase charge
it made in its December 3, 1997 Fourth Amended charge. (The same is
true of the First-Amended, Second-Amended, and Third-Amended
charges discussed below.) It filed the First Amended charge on October
15, 1997, the Second Amended charge on October 22, 1997, and the
Third Amended charge on October 27, 1997. (In each case, the Union
“incorporated by reference” the elements in its previous charge(s) be-
fore adding new claims not contained in earlier versions.) On January
7, 1998, the Regional Director issued two separate letters pertaining to
the pending original, First amended, and Second Amended charges: In
one (R. Exh. 6, p. 3, inadvertently misdated January 7, 1997), the Re-
gional Director advised the parties that the Union had withdrawn with
his approval that portion of the original, First Amended, and Second
Amended charge alleging that the Respondent violated the Act by
videotaping Union organizers. In the other (R. Exh. 6, p 6) the Re-
gional Director notified the parties that he was dismissing the balance
of the original, First Amended, and Second Amended charges. On
February 18. 1998, the Regional Director further notified the parties by
letter (R. Exh. 6, p.3) that he was refusing to issue a complaint on a
new matter raised in the Union’s Third Amended charge, alleging that
the Respondent’s agents had challenged Union supporters to fight dur-
ing “captive-audience” meetings and had made other threats during
Union meetings. On March 27, 1998, the Office of the General Counsel
denied the Union’s appeal from the Regional Director’s (January 7,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
The December 3 charge alleged pertinently that “[w]ithin the
past six months, the Employer . . . grant[ed] wage increases to
Deborah Mackron and Alicia Ojeda to reward and encourage
anti-union animus.” However the complaint does not limit itself
to attacking wage increases occurring within the 6-month pe-
riod preceding this charge; rather it calls into question certain
wage-increases admittedly given to those employees as re-
motely as 19 months prior to the charge, in the case of Mack-
ron, and 18 months prior to the charge, in the case of Ojeda.
Specifically, the complaint attacks each of the following
hourly wage increases given to Mackron and Ojeda as having
been conferred to “encourage [their] anti-union efforts, and in
order to discourage other employees from supporting the Union
and/or engaging in union or other [protected] concerted activi-
ties[,]” all in violation of Section 8(a)(3) and (1) of the Act:

Mackron (pars. 8(b) and (c)): $3.00 on May 1, 1996;
50 cent on May 1, 1997.
Ojeda (pars. 9(b) through (d)): $1.00 on June 5, 1996;
$1.00 on August 21, 1996; 50 cent on August 21, 1997

The Respondent’s answer denies that its granting of the various
increases to Mackron and Ojeda was in any way unlawful, but
the Respondent further avers as an affirmative defense that “the
complaint is barred in whole or in part by the six-month statute
of limitations set forth in Section 10(b) of the Act,” and must be
dismissed in whole or in part for that reason alone.
In part as a result of my pre-trial direction, and in part as a
result of the illness of counsel for the General Counsel, the
facts bearing on the Respondent’s 10(b) defense were the only
facts that were litigated in a hearing I conducted in Los Ange-
les, California, on November 30 and December 1, 1998, at the
conclusion of which I directed the parties to submit briefs on
the 10(b) issue by December 14, 1998,6 and directed that addi-
tional proceedings on remaining issues would begin on January
4, 1999.7 The 10(b) question is the only one I address in this
decision.
After considering the parties’ briefs, and based on the facts
and the reasoning set forth below, I judge that the complaint is
barred by Section 10(b) except insofar as it attacks the most
recent of the wage increases in question, that given to Ojeda on
August 21, 1977. Accordingly, I will dismiss all other counts in

1998) refusal to issue complaint as to the nonwithdrawn portions of the
Union’s original, First Amended, and Second Amended Charges.
6 On the Union’s unopposed written request, I subsequently ex-
tended the deadline for receipt of 10(b) briefs to close of business on
December 15, 1998. All parties (save RD Petitioner Tolentini, who did
not appear in the proceedings despite prior notice) filed briefs on or
before the extended, December 15 deadline.
7 During prehearing conference calls with the parties, I directed a bi-
furcation of the litigation previously scheduled (by the Regional Direc-
tor) to begin on Monday, November 30 and to continue on consecutive
days thereafter: After opening the record, the parties would first litigate
all facts deemed to be relevant to the 10(b) issue, to be followed by
arguments and a ruling on the 10(b) issue, to be followed immediately
by the litigation of the merits of any alleged unfair labor practices that
might survive 10(b) scrutiny. The (originally unplanned-for) adjourn-
ment of further proceedings to January 4, 1999, was necessitated by the
fact that counsel for the General Counsel, due to illness, became unable
to proceed beyond the 10(b) litigation stage.
the complaint, leaving to further proceedings all questions relat-
ing to the impact of this dismissal on the appropriate scope of
litigation.
I. FACTS RELEVANT TO THE 10(b) ISSUE
At the time of the decertification election on October 1,
1997, the Union had represented the Respondent’s bargaining
unit employees for at least 50 years.8 The most recent labor
agreement between the parties became effective on December
1, 1994, and is due by its terms to terminate on November 30,
1999. Article VIII of the labor agreement, dealing generally
with arbitration procedures, provides, at section 6, that “[i]n no
event shall the Employer be liable to the Employee for in ex-
cess of sixty (60) days of backpay for any claims, including
adjustment of wages, hours or any other benefit except vacation
claims.” At a minimum, the provision appears to limit backpay
for claims that the employee has not received the proper con-
tractual pay rate to a period of 60 days prior to the making of
the claim, no matter how long the employer may have been
paying the employee at the incorrect contractual rate.9 Accord-
ingly, the provision would appear to require a certain vigilance
on the both the employee’s and the Union’s part to ensure that
potential grievances over improperly low pay rates be discov-
ered and filed promptly, to avoid running afoul of the 60-day
backpay limitation provision.
Although the precise timing is uncertain, the Union had been
placed under International trusteeship at some point before—or
perhaps soon after—May 26, 1995, when Tolentini filed the
petition for decertification election, and all of its former offi-
cers had been suspended from their jobs. Thus, during all or
nearly all of the attenuated preelection period, the Union was
operated under the direction of an International trustee, Tom
Walsh. Early on in that same period, however, starting some-
8 The agreed-on unit is described as follows:
Included: Full time and regular part-time bartenders, kitchen,
banquet, food and beverage, service, and extra employees em-
ployed by the Employer at its Santa Monica, California facility,
including employees in the job classifications listed on Schedule
A of the most recent collective bargaining agreement between the
Union and the Employer.
Excluded: Office clerical employees, and all other employees,
guards, and supervisors as defined in the Act.
9 This interpretation is not seriously disturbed by the generalized tes-
timony of Union Agent Petersen that, in certain grievance cases alleg-
ing wrongful discharge or other wrongful adverse action against an
employee, arbitrators have, in fact, awarded more than 60 days of
backpay to employees found to have been the victims of such adverse
actions. However, Petersen eventually made it clear, during examina-
tion from the bench, that none of these grievance-cases had been
grounded in a simple claim that the Respondent had failed to pay an
employee at the contractually-prescribed rate. Indeed, see this ex-
change:
JUDGE NELSON: Somebody comes to you and says I am
suppose[d] to be getting $8.95 and hour and for the past six
months I have only been getting $8.50, you grieve?
THE WITNESS: Right.
JUDGE NELSON: Does the sixty day back pay c[l]ause in
that circumstance as you construe the contract, limit your recover
to sixty days?
THE WITNESS: It very well could, yes.
MIRAMAR SHERATON HOTEL 1249
time in September 1995, Kurt Petersen, an employee on the
International staff who holds a law degree, was designated
“Lead Organizer” for the Union, and was soon assigned to take
over the day-to-day servicing of the labor agreement with the
Respondent, including responsibility for contract-enforcement
matters, and to conduct a campaign aimed at convincing the
Respondent’s bargaining unit employees to retain the Union as
their representative.10 Petersen, assisted by other staff organiz-
ers for the Union, and by an in-house organizing committee of
the Respondent’s employees, conducted many meetings with
employees for these purposes during the preelection period, and
the wages they were receiving were among the many subjects
addressed in these meetings. In addition, Petersen admittedly
spent increasing time visiting the Respondent’s facility and
talking with the employees as the October 1, 1997 election date
drew near.
As I summarize next, starting in September 1995, soon after
the arrival of Walsh and Petersen on the scene, the Union initi-
ated what proved eventually to be an extensive series of peri-
odic requests for information from the Respondent concerning
such matters as the identity of employees in the bargaining unit,
their wages, addresses, social security and telephone numbers,
hours of work, and other terms and conditions of their employ-
ment. Most of the pertinent, information-related correspon-
dence is contained in the Joint Exhibit (J. Exh.) file; however,
Respondent’s Exhibits (R. Exhs.) 3 and 4 (respectively, the
Respondent’s February 14, 1996 and November 14, 1997
wage-information responses) are significant supplements to the
correspondence in the joint exhibit file.11 The joint exhibit file
contains a total of 30 items of information-related correspon-
dence exchanged by the parties not only during the preelection
period, but well beyond it, ending with the Respondent’s No-
vember 3 and 5, 1998 responses (J. Exhs. 29 and 30) to the
Union’s (Petersen’s) most recent request (J. Exh. 28, dated
October 23, 1998) for a “[l]ist of all bargaining unit employees
[including “all part-time or on call workers”] listed alphabeti-
cally by last name, that includes . . . full name, current classifi-
cation, company seniority date, current address and telephone
number [and] current wage rate.” It also bears noting at the
outset that the General Counsel has not charged the Respondent
with having unlawfully refused to furnish any of the informa-
tion involved in any of the Union’s many information requests
during the above-described period, nor would the record sup-
port such a finding.
The first such request of record was made early in the
preelection period, on September 21, 1995 (J. Exh.1). On that

10 Petersen’s testimony clearly indicates that he was appointed for
these purposes in September 1995; however he further testified that it
was not until “December” 1995 that he began visiting the hotel on a
regular basis, increasing gradually to visits on a daily basis in the
month before the election.
11 General Counsel’s Exhibit (GC Exh.) 4 is a duplicate of J. Exh. 6.
It should be noted moreover, that GC Exh. 3, while appearing to be a
duplicate of J. Exh. 2 (the Respondent’s 7-page response on November
1, 1995 to the Union’s September 21, 1995 wage-information request,
the latter received as J. Exh.1) is an incomplete version of J. Exh. 2,
containing only the last 4 pages of what was actually a 7-page compila-
tion.
date, Walsh wrote to the Respondent’s general manager, Bill
Worcester, advising of his appointment as International trustee,
and further requesting “the following information for all em-
ployees covered by the collective bargaining agreement” (em-
phasis in original):

full name: Social Security Number: last known address:
present wage rate: job classification: job tittle [sic]; pre-
sent supervisor; current work hours scheduled; depart-
ment; and job status, such as full-time, part-time, etc.

On November 1, 1995, Worcester replied in writing (J. Exh.2),
enclosing what Worcester described in his cover letter as “the
information requested regarding our employees covered by the
collective bargaining agreement[.]” The enclosure consisted of
a seven-page, closely spaced listing of names, addresses, job
titles, wage rates, and other information.
On January 9, 1996, the Union (Walsh) made a new written
request (J. Exh. 3, addressed to Rafael Igoa, the Respondent’s
personnel regional director) for a “list of the current wage rates
for all Miramar Sheraton employees represented by Local
814.”12 On February 14, 1996, Igoa mailed the requested listing
to Petersen’s attention (R. Exh. 3) but it was not delivered to
the Union until February 21.
As previously noted, the Union had requested the informa-
tion disclosed in Respondent’s Exhibit 3 as being relevant to a
pending grievance over the Respondent’s alleged failure (on
December 1, 1995) to confer a contractually mandated pay
increase of 30-cent per hour to all of its “non-minimum wage
employees.” However, when Petersen received this Respon-
dent’s Exhibit 3 listing, he admittedly reviewed it “carefully”
with another purpose in mind, as well—to ascertain whether
petitioner Tolentini and other employees known to him to be
supportive of the decertification effort might have been the
beneficiaries of any wage-favoritism. (To make this determina-
tion, Petersen compared the wage-data on R. Exh. 3 with the
wage-data contained in J. Exh. 2, which the Respondent had
furnished about 2-1/2 months earlier. Notably, his study for this
purpose included focusing on the wages being paid to Mackron
and Ojeda, because he had “heard reports” that both of them
were being “given freer [rein] to talk with employees . . .
against the Union.”13 After making this review, however, Peter-
12 This request was made at the conclusion of a letter that was oth-
erwise devoted to clarifying the Union’s position as to a pending griev-
ance over the Respondent’s alleged failure (on December 1, 1995) to
confer a contractually mandated pay increase of 30 cent per hour to its
“non-minimum wage employees.” This request also avers that lead
organizer Petersen had already made such a request “by facsimile on
December 29, 1995.” However the said facsimile, if it ever existed, is
not of record, and the quoted assertion is thus hearsay, to which I as-
cribe no evidentiary weight. I likewise accord no weight to any other
such representations in the Union’s correspondence that are not inde-
pendently established in the record. Indeed, I received each item of
correspondence comprising the J. Exh. file as simply being what it
purported to be, i.e., a true copy of the communication, mailed on or
about the date indicated, and received in due course by the addressee;
and I specifically noted that the items of correspondence were not being
received as evidence of the truth of any assertion contained therein.
13 Petersen clearly and repeatedly testified—during examination by
both the Respondent’s counsel and counsel for the General Counsel—
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
sen judged that there was no basis in the wage-data shown on
R. Exh. 3 for any such claim of favoritism.)
Over the course of the next 20 months or so, the Union made
a large number and variety of requests for information about
the bargaining unit employees other than their wage rates, such
as for updated listings of their names, addresses, telephone
numbers, social security numbers, job classifications, hours of
work, eligibility under the Respondent’s medical insurance
plan, and other data.14 In addition, the Union notified the
Respondent in March 1996 that the Union had “received reports
from employees that the hotel may be in violation of state and
federal health and safety regulations, wage and hour regula-
tions, and collective bargaining provisions in [its] restaurants,
room service, kitchen, lobby and bell area, laundry and house-
keeping,” and that, “[b]ased on this concern . . . the Union [in-
tended] effective immediately [to have] its “representatives . . .
review the work conditions of bargaining unit employees . . . in
the above listed work areas . . . during hotel operating hours.”15
Despite these aggressive pursuits of other kinds of bargain-
ing unit information, however, more than 20 months elapsed
before the Union made its next request for bargaining unit wage
information. Thus, according to Petersen’s testimony, the Un-
ion made a request sometime in “October” 1997, after the Oc-
tober 1 election, for another listing of the current wage rates of
all bargaining unit employees.16 On November 14, 1997, the
Respondent mailed the requested list (R. Exh. 4) to the Union.
Petersen explained at one point in his testimony (and the Un-
ion’s attorney emphasizes this explanation on brief17) that his
particular reason for making the request leading to the Respon-
dent’s November 14, 1997 wage disclosures was as follows
(my emphasis):

The decertification election had taken place on the first of
October, shortly after that election there was significant
confusion among our members as to what the status of the
Union was. We sent the letter to see whether or not the
Company was still going to comply with the contract and
in particular to see whether they were going to give those
thirty cent raises in December of, you know, a month or
two away.

Based on considerations noted below, I judge that the italicized
portion of Petersen’s explanations amounts to an unreliable
embellishment, intended to obscure the fact that the Union’s
October 1997 wage-data request had nothing to do with any
suspicion that the Respondent was then in breach of any obliga-
tions under the labor agreement. Indeed, I judge that the request
was motivated by little more than a desire (a) to make a politi-

that his review of R. Exh. 3 in February 1996 included study of both
Mackron’s and Ojeda’s wages for signs of wage favoritism. In the
circumstances, I gave scant weight to his implicitly inconsistent testi-
mony elsewhere that he did not become aware of any antiunion senti-
ments on Ojeda’s part until sometime in the latter part of 1996
14 See J. Exh. 10–25.
15 See J. Exhs. 9, dated March 23, 1996.
16 The exact timing and form of this request are not of record; none
of the exhibits contains any documentation of such a request occurring
in or around October–November 1997.
17 U. Br. at pp. 7–8.
cal statement, and (b) a wish to secure data that would permit
the Union once again to ascertain whether any of the supposed
prodecertification employees had been favored with pay in-
creases.
First in this regard, it is obvious that the October 1997 re-
quest could not (and, in the event, did not) yield any informa-
tion about the Respondent’s intentions respecting the 30-cent
wage increase, which was not due until December 1977. More-
over, during later testimony on examination from the bench,
Petersen acknowledged that the October 1997 information re-
quest was not “linked to any pending grievance or suspicion of
misconduct” on the Respondent’s part, but instead, was based
primarily on the Union’s desire to “assure our members . . . that
the Union was still there.”18 Accordingly, Petersen’s attempt to
suggest that the Union was motivated by a contract-
enforcement concern when it made the October 1997 wage-data
request is unpersuasive. Indeed, I regard that feature of his
explanation as merely reflecting a clumsy attempt on his part to
remain consistent with his claims elsewhere that the Union’s
information requests were always grounded in some kind of
specific report or complaint from an employee, or a specific
pending grievance, and that the Union did not engage in ran-
dom, spontaneous “witch hunts.”19 Finally, Petersen’s explana-
18 Thus,
THE WITNESS: In the letter or the letters that we sent dur-
ing late 1995, early 1996, which we received the February 14th
list, that was actually directed or involved a grievance that we had
filed asserting that the Company had not, had violated the contract
by not providing those thirty cent raises so I needed that list to
look at the November—
JUDGE NELSON: That was triggered by a specific [in-
crease] that at least some people weren’t getting?
THE [WITNESS]: That is right.
JUDGE NELSON: Is the same true of the request that even-
tually led to Respondent’s Exhibit No. 4, the November 1997 list?
THE WITNESS Yes, the November 1997 list, the reason
why we, or I requested that was because the election had occurred
on October 1st, there was significant concern among our bargain-
ing unit members because of what they were hearing that the
Company was not going to honor the contract, that the Union
somehow automatically was going to leave, so we wanted to send
that letter in order to assure our members and ourselves, although
we knew it, that the Union was still there and to put the Company
on notice that we were expecting them to come, you know, to
comply with this request and also pay the wage increases that
were due to employees in the month of December, and I think—
JUDGE NELSON: Okay, in that instance it wasn’t linked to
any pending grievance or suspicion of misconduct?
THE WITNESS: No, in that instance it was coming out of
the decertification election and the confusion that ensued and the
concerns of our members from that confusion.
19 The Union’s and the General Counsel’s position on the 10(b) issue
involves in part the claim that, although the Union could have requested
wage data from the Respondent during the 20-month period when it
failed to do so, the Union had no reason to make such requests during
that period, and, therefore, it cannot be charged with a lack of “due
diligence” for such failure during that period. I simply note here that
this claim is undermined by the fact that the Union had no particular
“reason” for making the October 1997 request, either—other than to
make a political point, and, as I discuss below, to ascertain (belatedly)
MIRAMAR SHERATON HOTEL 1251
tions are to a large extent undermined by his admission, de-
scribed next, about the use to which he actually put the wage-
information furnished by the Respondent on November 14,
1997.
Thus, Petersen testified that, after receiving this Respon-
dent’s Exhibit 4 list, he studied it with some care, and com-
pared it to the wage data he had received in February 1996 (R.
Exh. 3, above) to ascertain whether any of the employees
known to favor the decertification effort (including Mackron
and Ojeda) had received any unusual pay increases in the
roughly 20-month interval that had by then elapsed. And it was
in the course of making this comparative study, according to
Petersen, that he determined that Mackron and Ojeda had re-
ceived larger increases during that protracted interval than any-
one else in the bargaining unit. He then prepared another chart
(GC Exh. 8), recapitulating the fruits of these comparisons, and
furnished it to the Union’s attorneys, with authorization to file
an unfair labor practice charge, which Union attorney Davis
did, on December 3, 1997, as the “Fourth Amended” charge in
this case.20 As previously noted, that charge alleged in material
part that “[w]ithin the past six months, the Employer . . .
grant[ed] wage increases to Deborah Mackron and Alicia Ojeda
to reward and encourage anti-union animus.” As previously
noted, that charge, in turn, became the trigger for the June 6,
1998 complaint issued by the Regional Director in the name of
the General Counsel, who expanded the charge to attack wage
increases conferred on Mackron and Ojeda well outside the 6-
month period addressed by the charge.
II. ANALYSIS AND CONCLUSIONS; ORDER; FURTHER
DIRECTIONS
A. General Principles
Section 10(b) provides in pertinent part that “no complaint
shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the
Board.” Here, the complaint calls into question a number of
wage increases given to Mackron and Ojeda well beyond the 6-
month period preceding the Union’s December 3, 1997 charge.
Indeed, only Ojeda’s August 21, 1997 wage increase of 50
cents per hour fell within the 10(b) period. Accordingly, absent
some special “tolling” circumstances, the complaint is barred
by Section 10(b) insofar as it attacks all but one of the wage
increases.
In U.S. v Kubrick, 444 U.S. 111, 116 (1979), the Supreme
Court stated pertinently as follows:

Statutes of limitations, which “are found and approved in
all systems of enlightened jurisprudence,” Wood v. Car-

whether any employees who favored the Union’s ouster might have
been the beneficiaries of extraordinary wage increases.
20 Petersen testified that, in authorizing the filing of the charge, he
relied exclusively on the information he had gleaned from comparing
pay rates disclosed in the Respondent’s February 1996 wage-
information response (R. Exh. 3) and those disclosed in the Respon-
dent’s November 1997 wage information response (R. Exh. 4). He
further affirmed that he had received no other information that caused
him to believe that Mackron and Ojeda were the objects of wage-
favoritism.
penter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent
a pervasive legislative judgment that it is unjust to fail to
put the adversary on notice to defend within a specified
period of time and that “the right to be free of stale claims
in time comes to prevail over the right to prosecute them.”
Railroad Telegraphers v. Railway Express Agency, 321
U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944).
These enactments are statutes of repose; and although af-
fording plaintiffs what the legislature deems a reasonable
time to present their claims, they protect defendants and
the courts from having to deal with cases in which the
search for truth may be seriously impaired by the loss of
evidence, whether by death or disappearance of witnesses,
fading memories, disappearance of documents, or other-
wise. United States v. Marion, 404 U.S. 307, 322, n. 14,
92 S.Ct. 455, 464, n. 14, 30 L.Ed.2d 468 (1971); Burnett v.
New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct.
1050, 1054, 13 L.Ed.2d 941 (1965), 325 U.S. 304, 314, 65
S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945); Missouri K. & T.
R. Co. v. Harriman, 227 U.S. 657, 672, 33 S.Ct. 397, 401,
57 L.Ed. 690 (1913); Bell v. Morrison, 1 Pet. 351, 360, 7
L.Ed. 174 (1828). Section 2401(b), the limitations provi-
sion involved here, is the balance struck by Congress in
the context of tort claims against the Government; and we
are not free to construe it so as to defeat its obvious pur-
pose, which is to encourage the prompt presentation of
claims. Campbell v. Haverhill, 155 U.S. 610, 617, 39
L.Ed. 280 (1895); Bell v. Morrison, supra, at 360. We
should regard the plea of limitations as a “meritorious de-
fense, in itself serving a public interest.” Guaranty Trust
Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 790,
82 L.Ed. 1224 (1938).

Moreover, as the 10th Circuit noted in State of Colorado v.
Western Paving Corp., 833 F.2d 867, 873 (1987),

Because of their mechanical application, “statutes of limi-
tation result in hardship to plaintiffs in some cases.”
Steele v. United States, 599 F.2d 823, 828 (7th Cir.1979).
However, “alleviation of that hardship is a matter of policy
for the Congress.” Kaltreider Const., Inc. v. United States,
303 F.2d 366, 368-69 (3d Cir.), cert. denied, 371 U.S. 877,
83 S.Ct. 148, 9 L.Ed.2d 114 (1962). Once Congress, or
some state legislative body, has determined what is a suf-
ficient period for bringing a claim, the courts should refuse
to hear the claim after that time has passed. “Stale con-
flicts should be allowed to rest undisturbed after the pas-
sage of time has made their origins obscure and the evi-
dence uncertain.” Dayco Corp., 523 F.2d at 394. Plaintiffs
should not be allowed to argue that no logical reason ex-
ists for applying the statute to their case. After all,
“[s]tatutes of limitation find their justification in necessity
and convenience rather than in logic. They represent expe-
dients, rather than principles. They are practical and prag-
matic devices to spare the courts from litigation of stale
claims, and the citizen from being put to his defense after
memories have faded, witnesses have died or disappeared,
and evidence has been lost.” Order of Railroad Telegra-
phers v. Railway Express Agency, 321 U.S. 342, 349 [64
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
S.Ct. 582, 88 L.Ed. 788]. They are by definition arbitrary,
and their operation does not discriminate between the just
and the unjust claim, or the voidable and unavoidable de-
lay. They have come into the law not through the judicial
process but through legislation. They present a public pol-
icy about the privilege to litigate. Chase Sec. Corp. v.
Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89
L.Ed. 1628 (1945) (footnote omitted). Legislatures enact a
statute of limitations to apply to all cases covered by the
statute. As the legislature is the one to make such policy
decisions, the only decision for the courts is whether the
claim is within the coverage of the statute.

Nevertheless, the Board, like the courts, has recognized that,
under certain exceptional conditions, the statute of limitations
will not begin to run until some point after the act or event
which is the subject of the complaint. One notable exception
occurs when the party asserting the 10(b) defense has engaged
in “fraudulent” (or ‘intentional’) concealment” of the material
facts underlying the alleged unfair labor practice. See Browne
& Sharpe Mfg. Co., 312 NLRB 444 (1993), embracing “the
equitable doctrine set forth in Holmberg v. Armbrecht, 327
U.S. 392 (1946), under which, as the Board noted, “if a party
‘has been injured by fraud and ‘remains in ignorance of it
without any fault or want of diligence or care on his part, the
bar of the statute does not begin to run until the fraud is dis-
covered.’”
However, in urging that the Union’s charge was timely un-
der Section 10(b), neither the General Counsel nor the Union
relies on claims of fraudulent concealment. Indeed, the Union
urges that the fraudulent concealment doctrine it is not “ap-
plicable” herein. Moreover, as noted by the Respondent, this
doctrine would appear to be completely unavailing to the
prosecuting parties, where, as here, there is no evidence of
any intentional concealment on the Respondent’s part of the
wages being paid to employees Mackron and Ojeda at any
given time. Rather, the prosecuting parties rely instead on a
different, and equally well-recognized, doctrine of equitable
tolling, i.e., that set forth in, e.g., R.G. Burns Electric, 326
NLRB 440 (1998), where the Board, citing Oregon Steel
Mills, 291 NLRB 185, 192 (1988), reiterated that “the 10(b)
period commences running when the charging party either
knows of the unfair labor practice or would have ‘discovered’
it in the exercise of ‘reasonable diligence,’” adding that “no-
tice for the purpose of the 10(b) limitation period may be
found even in the absence of actual knowledge if a charging
party has failed to exercise reasonable diligence[.]”21
While the exact interplay between the “fraudulent con-
cealment” doctrine and other principles of equitable tolling is

21 See, e.g., SAS Electrical Services, 323 NLRB 1239, 1253 fn. 30
(1997) (10(b) period starts running when the charging party has “actual
or constructive” notice of the respondent’s allegedly unlawful acts. And
see Dodds v. Cigna Securities, 12 F.3d 346, 350 (2d Cir. 1993), where,
in the context of a Federal securities fraud case, the circuit court noted
that “equitable tolling will stay the running of the statute of limitations
only so long as the plaintiff has ‘exercised reasonable care and dili-
gence in seeking to learn the facts which would disclose fraud.’” [Cita-
tions omitted.]
a subject of some confusion in the caselaw,22 I will assume
for all purposes below that the “actual or constructive knowl-
edge” standard governs the disposition of the 10(b) issue
herein. Specifically, I will assume at the threshhold that the
Union was not aware of any of the wage increases given to
Mackron and Ojeda until the point in late November 1997
when Petersen acknowledges that he became so aware, i.e.,
when he reviewed the wage data on Respondent’s Exhibit 4
and compared it with the counterpart data in Respondent’s
Exhibit 3, the Respondent’s February 14, 1996 wage compila-
tions.23 Accordingly, the question to be discussed below may
be properly framed in the following terms: Did the Union’s
late November 1997 discovery-in-fact of the wage increases
given to Mackron and Ojeda constitute the first moment when
the Union, by the exercise of reasonable diligence, could have
discovered those increases? For reasons discussed below, I
judge that the answer to this question is clearly No.
B. Application of the Constructive Knowledge Standard
The record clearly shows that the Union has frequently re-
quested and obtained bargaining unit wage information from
the Respondent. The Union made its first such request on
September 19, 1995 (J. Exh. 1), and the Respondent furnished
the information on November 1, 1995 (J. Exh. 2). It made its
second such request only a few months later, on January 9,
1996 (J. Exh.3), and received a new compilation from the
Respondent on February 19, 1996 (R. Exh. 3). However,
roughly 20 months then elapsed (during which period the
Union made numerous other requests for other types of bar-
gaining unit information) before it made the October 1997
request, the one that yielded the new wage compilation from
the Respondent that resulted in the Union’s filing of the De-
cember 3, 1997 charge.
I regard the Union’s failure during the 20-month period to
make more timely requests for wage data as largely disposi-
tive of the 10(b) issue. The Supreme Court pertinently held
long ago that if a party “ha[s] the means of discovery [of a
fact] in his power, he will be held to have known it[,]’” and
“[w]hatever is notice enough to excite attention and put the
party on his guard and call for inquiry, is notice of every thing
to which such inquiry might have led.” Wood v. Carpenter,
101 U.S. 135, 139 (1879) (citations omitted).24 Indeed, the
Board recognized and applied this “constructive knowledge”
doctrine in Moeller Bros.Body Shop, 306 NLRB 191 (1992),
stating (id. at 192–193):

22 See discussion in Cada v. Baxter Healthcare Systems, 920 F.2d
446, 450. (1990), cert. denied 501 U.S. 1261 (1991) cited with apparent
approval in Klehr v. A.O. Smith Corp., 521 U.S. 179, 184 (1984).
23 The Respondent argues that the evidence is insufficient to estab-
lish that the Union was unaware in fact of the wage increases now in
question at the time they were conferred. However, on this record, I
will assume that Petersen testified truthfully when he denied any such
awareness prior to receiving R. Exh. 4 in late November 1997.
24 See also Dodds v. Cigna Securities, supra, 12 F.3d at 350: “As we
said in Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir.1983)], “‘[T]he
means of knowledge are the same thing in effect as knowledge itself.’”
(quoting Wood v. Carpenter, supra, 101 U.S. at 143).
MIRAMAR SHERATON HOTEL 1253
In view of the Union’s failure to exercise reasonable
diligence by which it should have become aware, long
before the filing of the charge in this case, of the Re-
spondent’s policy vis-a-vis prejourneymen, we find that
Section 10(b) bars recovery as to any employees who
were hired as prejourneymen. . . . Had the Union made
any effort to enforce the union-security provisions, it
would have become aware that the Respondent was hir-
ing employees without providing fringe benefits and
without paying contract wages. Accordingly, we agree
with the judge that recovery for the journeymen and util-
ity workers is limited to the 6-month period preceding
the filing of the charge. Farmingdale Iron Works, supra.
We conclude that the Union is chargeable with construc-
tive knowledge by its failure to exercise reasonable dili-
gence by which it would have much earlier learned of the
Respondent’s contractual noncompliance. While a union
is not required to aggressively police its contracts ag-
gressively [sic] in order to meet the reasonable diligence
standard, it cannot with impugnity [sic] ignore an em-
ployer or a unit, as the Union in this case did, and then
rely on its ignorance of events occurring at the shop to
argue that it was not on notice of an employer’s unilat-
eral changes.

Here, as in Moeller, supra, the Union is properly charge-
able with constructive knowledge of the wage increase facts,
which it could have discovered far earlier through more
timely information requests. Thus, it clearly possessed the
“means to discover” the allegedly excessive increases in a far
more timely way, but neglected to avail itself of that opportu-
nity during the 20-month period between mid-February 1996,
when it received Respondent’s Exhibit 3, and October 1997,
when, in the aftermath of the decertification election, it made
a new wage-information request.25 However, having allowed
20 months thus to elapse, the Union necessarily ran the risk
that any suspicious wage increases it might discover at the
end of that period would have been conferred more than 6
months earlier.
The General Counsel and the Union both suggest that, to
hold the Union to a “duty” to have discovered the wage in-
creases in a more timely fashion would lead to undesirable
consequences. Thus, the General Counsel argues that, under
the “means of discovery” standard suggested above, “the

25 The Union and the General Counsel, seeking to avoid the applica-
tion of the Moeller rule herein, have gone to great lengths to establish
that the Union was not like the union in Moeller, in that it was a con-
spicuous presence at the Respondent’s facility during the protracted
preelection period, and in many other respects acted aggressively to
“police its contract” during that period. However, these arguments
involve a non sequitur: It does not follow that the Union exercised “due
diligence” when it came to pursuing information bearing on its ongoing
suspicions of wage-favoritism simply because it may have exercised
diligence in fulfilling other aspects of its representative function. Nei-
ther can it be assumed from Moeller that the only time a union will be
found to have “constructive knowledge” of facts which it could have
discovered in a more timely fashion by the exercise of due diligence
will be when the union proves to have been as lax and indifferent to its
representative function as was the union in Moeller.
Union could have satisfied Section 10(b) only if it had a prac-
tice of requesting wage information from Respondent twice
each year.” (In fact, as I note below, the Union did, indeed,
display “such a practice” prior to the 20-month period in
question.) And the Union expresses a similar argument; strik-
ingly, however, it is couched in terms of a concern for an
employer’s interests. Thus, the Union argues that “such a
finding would result in employers being routinely fly specked
by information requests from unions on any and all matters
that could implicate violations of the contract, Federal labor
law or other employment related matters. The burden of
complying with such requests for employers can not be un-
derestimated.”
Both arguments have a hollow—even a hypocritical—
quality in the context of this case: First, it is clear that the
Union was not at all shy about making repeated wage-data
requests within a relatively short period of time. (Its first two
such requests were spaced less than 4 months apart, on Sep-
tember 21, 1995 (J. Exh. 1) and again on January 9, 1996 (J.
Exh. 2). Moreover, the record clearly shows that, with respect
to categories of bargaining unit information other than wage
data, the Union made three, essentially identical requests
within 12 months.26 Clearly, therefore, the Union cannot be
said to have had the Respondent’s interests in mind when it
refrained during the 20-month interval from asking it for up-
dated wage information.
Rather, in the end, two facts stand out in relief: First, the
Union, although suspicious since at least January 1996 that
employees supposed to favor the Union’s decertification,
including Mackron and Ojeda, might be the objects of wage-
increase favoritism, simply dropped such inquiries after Pe-
tersen determined that the first set of the Respondent’s wage-
disclosures (J. Exh. 2 and R. Exh. 3) could not support that
suspicion. Then, 20 months later–without any additional basis
for suspecting anew that prodecertification employees were
being favored with excessive wage increases, and only after
failing to gain a majority vote from employees in the October
1, 1997 election—the Union nevertheless decided to pursue
its original suspicions once more, this time obtaining the in-
formation which triggered its December 3, 1997 charge. Thus,
I conclude in the circumstances not only that the Union could
have gathered the same information in a far more timely fash-
ion, but that the exercise of reasonable diligence required it to
make such earlier inquiries, or face the necessary conse-
quence that any claim as to wage increases made more than 6
months prior to the charge would be dismissed as barred by
Section 10(b).
Accordingly, acting pursuant to my authority as described
in Section 102.35(8) of the Board’s Rules and Regulations, I
enter the following
26 See and compare the following exhibits: J. Exh. 10 (March 5,
1997 request for a “list of all bargaining unit employees, listed alpha-
betically by last name, that includes full name, classification, company
seniority date, current address, and telephone number”); J. Exh. 24
(August 26, 1997 request for essentially the same categories of infor-
mation); and J. Exh. 26 (February 26, 1998 request for essentially the
same categories of information).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
ORDER
The complaint is dismissed insofar as it alleges that the Re-
spondent unlawfully granted wage increases to employee
Deborah Mackron on May 1, 1996, and May 1, 1997, and is
further dismissed insofar as it alleges that the Respondent
unlawfully granted wage increases to employee Alicia Ojeda
on June 5 and August 21, 1996.27

27 Any appeal from this Order is subject to the provisions of Sec.
102.26 of the Board’s Rules and Regulation, requiring special permis-
sion of the Board.
This Order does not affect the continuing viability of the
complaint insofar as it alleges that the Respondent unlawfully
granted a wage increase to employee Ojeda on August 21,
1997.
FURTHER DIRECTIONS: At or prior to the hearing
scheduled to resume on January 4, 1999, the parties shall
make any motions or arguments bearing on the proper scope
of litigation in the light of the foregoing Order, including but
not limited to the questions whether, or to what extent, the
“objections” case is properly before me.