Pier Sixty, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 18, 2013

02-CA-068612 (N.L.R.B. Apr. 18, 2013)

JD(NY)–17–13
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PIER SIXTY, LLC
and Case Nos. 2-CA-068612
2-CA-070797
HERNAN PEREZ, An Individual
EVELYN GONZALEZ, An Individual
Eric Brooks, Esq., New York, New York,
for the Acting General Counsel
Thomas R. Gibbons, Esq., Jackson Lewis, LLP,
for the Respondent
Hernan Perez, Charging Party
Evelyn Gonzalez, Charging Party
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. Based upon a charge in Case No. 2-
CA-068612, filed on November 9, 2011 by Hernan Perez, and upon a charge in Case No. 2-CA-
070797, filed on December 15, 2011 and amended on January 19, 2012 and February 6, 2012
by Evelyn Gonzalez, an Amended Complaint and Notice of Hearing issued on August 24, 2012.
The Amended Complaint alleges that Pier Sixty, LLC (“Pier Sixty” or “Respondent”), violated
Sections 8(a)(1) and (3) of the Act by discharging Perez in retaliation for his protected concerted
activities and activities on behalf of the Evelyn Gonzalez Union (the “EGU” or the “Union”), and
that Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge,
the loss of benefits, the loss of business, and the loss of its “open door policy” if the employees
chose the Union as their collective bargaining representative. The Complaint further alleges
that Respondent violated Section 8(a)(1) by informing employees that bargaining with the Union
would “start from scratch,” and by disparately enforcing its “no talk” rule to prohibit discussions
regarding the Union. Respondent filed an Answer denying the Complaint’s material allegations.
This case was tried before me on October 16, 17, 18, and 19, 2012, and on November
19 and 20, 2012, in New York, New York.
Findings of Fact
I. Jurisdiction
Respondent has an office and principal place of business at the Chelsea Piers, Pier 62,
Suite 300, New York, New York, and is engaged in the business of catering. Respondent
admits and I find that at all material times it has been an employer engaged in commerce within
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the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that at all
material times the Evelyn Gonzalez Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Respondent’s Operations
Respondent provides food and beverage catering services for weddings, corporate and
fundraising events, and private parties in Manhattan’s Chelsea Piers. Respondent provides
services in two venues at the Piers – the Pier Sixty venue, which can accommodate 300 to
1,000 guests, and the Lighthouse venue, which can accommodate 100 to 400 guests.
Respondent employs a total of 310 employees, including culinary and pastry departments, set-
up staff, its banquet department (comprised of servers, coat check employees, and wait
captains), stewarding (employees who clean the back of the house and wash dishes), sales,
human resources, accounting, purchasing, and concierge employees. The instant case
involves employees and managers in Respondent’s banquet department.
James Kirsch and Roland Betts are principals in Respondent’s business. Jeffrey
Stillwell is Respondent’s Director of Banquet Services, and is responsible for all front of the
house staff and operations. Four managers report directly to Stillwell – Robert McSweeney,
Assistant Director of Banquets, Chris Martino, a Banquet Administrator, Richard Martin, a
Banquet Manager, and Paul Macias, an Event Manager. Douglas Giordano was Respondent’s
General Manager at the time of the events at issue in this case; Giordano is no longer employed
by the company. Luisa Marciano is the Corporate Director of Human Resources for Abigail
Kirsch Catering, which is an owner of Respondent, and has provided human resources
consulting services for Respondent for over eleven years. Dawn Bergman has been
Respondent’s Director of Human Resources for over ten years. Respondent admitted in its
Answer and I find that at all material times Kirsch, Bates, Stillwell, McSweeney, Martino, Martin,
Macias, Giordano, Marciano, and Bergman were supervisors within the meaning of Section
2(11) of the Act, and agents acting on its behalf. Stillwell, Marciano, Bergman, McSweeney,
Martino, and Martin testified for Respondent at the hearing. Hernan Perez testified for the
Acting General Counsel (the “General Counsel”) at the hearing, as did Evelyn Gonzalez, who
leads the EGU and is currently employed as a banquet server. Banquet servers Endy Lora,
Robert Ramirez, and Esther Martinez also testified for the General Counsel at the hearing.
B. The Activities of Respondent’s Employees and the Union’s Certification
Although this case primarily involves events surrounding a petition filed by the EGU and
a subsequent representation election, the evidence establishes that the Respondent’s servers,
led by Evelyn Gonzalez, engaged in a number of activities regarding their working conditions
prior to invoking the Board’s representation election processes. Gonzalez testified that she
initially learned in January 2011 that a number of staff were interested in union representation,
and had contacted Local 6, UNITE HERE, which had informed them that it only represented
hotel and motel workers. Gonzalez then spoke to approximately 30 employees, including
Hernan Perez, regarding issues involving their working conditions, and subsequently met with
Jeffrey Stillwell. Gonzalez informed Stillwell of several complaints on the part of the service
staff, primarily inequitable assignment of work, and disrespectful, undignified treatment of
servers on the part of Respondent’s managers. According to Gonzalez, Stillwell was
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unresponsive, so she consulted with the employees again, and prepared a lengthy list of their
complaints, which she provided to Stillwell in March 2011.1 The problems encompassed by the
list include a general lack of respect shown to servers by management, inequitable assignment
of tasks, hours, and scheduling, inadequate flexibility with respect to schedule changes, lack of
documentation in the human resources complaint process, unfair annual reviews, and poor
quality of the staff meal. Two to three weeks later, Gonzalez met with Stillwell and Dawn
Bergman, and described the employees’ concerns in further detail. According to Gonzalez,
Stillwell responded that the complaints were limited to a small group of employees, and
Gonzalez emphasized that she was raising issues identified by the regular servers. They
discussed the manner in which complaints were brought to management, and Gonzalez
suggested that the company hire a headwaiter to communicate server concerns, have regular
meetings with the staff, and establish a system for the servers to make anonymous complaints.
Subsequently, Gonzalez met with Stillwell and Doug Giordano to discuss a separate
complaint she received that Rich Martin had referred to the service staff as “animals” during an
event that Gonzalez had worked.2 Gonzalez testified that she told Giordano that the service
staff was having problems on the floor because management treated them in a disrespectful
and demeaning manner, resulting in the list of complaints she had presented to Stillwell.
Gonzalez also described an incident where Bob McSweeney had told a server that he would
throw her out of the building. Stillwell suggested that Martin had been joking, and Giordano said
that he would look into the incident involving McSweeney. After Gonzalez met with him,
Giordano held several meetings with the service staff, ostensibly to hear their complaints.
However, the servers were apparently not willing to discuss their concerns directly with
Giordano, and management thus began distributing papers for the staff to submit written
statements.
At some point during these events, Gonzalez, Perez, and other servers began meeting
with Local 100, UNITE HERE, in order to discuss organizing to have that union certified as their
collective bargaining representative. Local 100 provided the servers with union authorization
cards, which they began distributing and signing. Perez testified that he attended approximately
five meetings with Local 100, spoke to other servers about the benefits of joining the union, and
collected signatures on union authorization cards, which he provided to Gonzalez.
Gonzalez testified that approximately one week after the employees began collecting
authorization cards for Local 100, Giordano and Stillwell came in during a “family meal,” a meal
for employees which takes place prior to setting up for an event. According to Gonzalez,
Giordano told the employees that he had discovered that they were collecting union cards, and
that he wanted to remind the employees that once they signed these cards they would never be
able to get them back. Giordano further stated that once the employees brought a union in,
they would lose the company’s “open door policy,” because the staff would not be able to speak
with management without a union representative present. Giordano said that servers were
going to attempt to bring one other to the bathroom to sign union cards, and that the employees
needed to “watch out” for what they would be asked to sign. Gonzalez testified that the next
day, Stillwell, Giordano, and Bergman attended another family meal, where Giordano reiterated
these statements. Giordano also said that management had attempted to reach out to the

1 This list was also eventually provided to Dawn Bergman.
2 Server Esther Martinez testified that in or around the fall of 2011, at the end of an event, she
heard Martin tell a captain to “go get all of the animals to sign out,” referring to the employees working the
event that night.
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service staff to discuss their issues. An employee protested that there was no open door policy
at the company and the problems identified by the staff had not been rectified, and Bergman
responded that management had attempted to address the issues raised by the servers by
holding meetings and allowing for the submission of anonymous comments.
Perez testified that he also attended a meeting during the set-up for an event in
approximately June 2011, with Giordano, Stillwell, Bergman, McSweeney, Paul Macias, and all
of the employees working that evening. Perez testified that Giordano told the employees that
he had heard that a group of servers were collecting signatures on a “voting card.” Giordano
said that in fact the card required the servers to give up their rights. Giordano suggested that
employees who had signed cards attempt to retrieve them, and told the employees that if they
had signed a card, they would be penalized in the event that there was a strike and they opted
not to participate. Giordano also stated that the company’s open door policy would be
eliminated if a union were brought in.3
Gonzalez testified that the organizing on behalf of Local 100 did not proceed, and she
eventually learned that the employees could form an independent union. Gonzalez consulted
with other employees regarding this option, and Perez testified that he collected a second group
of signatures for the Evelyn Gonzalez Union. Gonzalez filed a petition on behalf of the EGU for
a representation election on September 22, 2011, and an election was conducted on October
26, 2011.4 The majority of votes were cast for the Union, which was certified on November 4 as
the exclusive collective bargaining representative of the following unit of employees:
All full-time, part-time, and on-call servers, all full-time and part-time captains, all
full-time, part-time, and on-call bartenders, and coat check employees in the
banquet department of the Employer located at Chelsea Piers, New York, NY.
C. Respondent’s Activities Pertaining to the EGU Organizing and Election
After the petition was filed and before the election took place – from September 22 to
October 26 – Respondent’s managers held a number of meetings with its service staff to
discuss the election and persuade the bargaining unit employees to vote against union
representation. These meetings began several days after the petition was filed, and the last
was held a few days prior to the election. The meetings took place at either Pier Sixty or the
Lighthouse, about an hour prior to the family meal, and attendance was mandatory for all
service staff scheduled to work the particular event. According to Bergman, Respondent
scheduled a different manager to make a presentation to the employees each week during the
four weeks prior to the election. Bergman testified that during the first week, Doug Giordano
spoke to the employees, and during the second week Luisa Marciano did so. During the third
week, owners James Kirsch and Roland Betts spoke at the meetings, and during the fourth and
final week Bergman and Jeffrey Stillwell made presentations. Bergman testified that because
different employees were assigned to work different events on different evenings, each of the
presentations was given multiple times during the particular week for which it was scheduled, to
ensure that as many employees as possible heard it. Gonzalez, Perez, and server Endy Lora
all testified that they attended about six of these pre-election meetings, and servers Robert
Ramirez and Esther Martinez also testified regarding the managers’ remarks.

3 None of the foregoing conduct on Giordano’s part is alleged by the General Counsel to have
violated the Act.
4 All subsequent dates are in 2011 unless otherwise indicated.
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1. Statements made by Doug Giordano
Gonzalez, Perez, Lora, Ramirez, and Martinez all testified regarding statements made
by Giordano at the meetings conducted by Respondent soon after the petition was filed.
Gonzalez, Perez, and Lora testified that Giordano told the employees that he wanted to make
them aware that Gonzalez had filed the petition. Giordano told the employees that they should
carefully consider whether they wanted Gonzalez to represent them, because she had no
experience in collective bargaining negotiations, whereas Betts, Kirsch and the other owners all
had experience in business and were very good negotiators. Giordano also stated that the
Union was only a business that Gonzalez intended to cash in on, because if the Union were
certified the employees would have to pay union dues to her.
Giordano also discussed Respondent’s open door policy at the meetings. For a number
of years, Respondent’s policy was that employees could discuss their work-related problems
and concerns with management on an individual basis. Gonzalez and Lora testified that this
policy had existed throughout the entire period of their employment. Gonzalez, Perez, Lora,
Ramirez, and Martinez all testified that during virtually every one of his meetings after the
petition was filed, Giordano stated that if the Union prevailed in the election the employees
would lose the open door policy, because Respondent’s managers would need a representative
of the Union present to speak with them.
Perez also testified that Giordano spoke about strikes at several of the meetings that he
attended. Perez testified that at a meeting on September 27, Giordano told the employees that
they needed to think about what they were getting into with the Union, because they would have
to pay dues and participate in a strike if one was called. According to Perez, at another meeting
Giordano stated that if a strike was called the Union would penalize employees who did not
participate. Perez, Ramirez, and Martinez also testified that Giordano stated that employees
who went on strike would lose their jobs, and would only be able to return to work by seniority.
In addition, during at least one of Giordano’s meetings an employee named Yamina
Collins asked what would happen to employees who did not want to be part of the Union if the
Union was certified as their collective bargaining representative. Gonzalez, Ramirez, and
Martinez testified that Giordano responded that employees who did not want to join the Union
would have to leave their jobs, and that he would have to discharge them, even if he did not
want to do so. Perez and Lora testified that Giordano responded that servers that did not join
the Union if the Union were certified had no option, and could not continue to work for
Respondent.
Finally, Giordano discussed benefits and collective bargaining during his meetings with
the employees. According to Perez, Giordano told the employees that if the Union obtained a
wage increase during negotiations, the company would take away the employees’ medical
benefits in response. Perez testified that Giordano described the “give or take” of negotiations
by telling the employees that if the company gave something to the Union during negotiations, it
would take something else away. Lora testified that Giordano told the employees that in terms
of current benefits other than the open door policy, “we will have to start all over from the
beginning from scratch” in negotiations. Ramirez testified that Giordano told the employees that
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if the Union won the election they would lose benefits such as their 401(k) plan, gym privileges,5
and tuition reimbursement. Martinez testified that Giordano told the employees that if the Union
won the election the current medical and dental benefits would be eliminated.
Dawn Bergman and Luisa Marciano testified for Respondent regarding Giordano’s
meetings with the service staff.6 Bergman testified that she was present during some, but not
all, of the meetings conducted by Giordano. Bergman testified that Giordano brought notes to
the meeting that he referred to while speaking, but did not read his notes word for word.7
Bergman stated that Giordano began the meetings she attended by informing the employees
that a petition had been filed on behalf of the EGU, and told the employees that Respondent’s
managers would be meeting with them over the coming weeks. According to Bergman,
Giordano said that Gonzalez had no experience running a union, and that if the Union was
certified collective bargaining would occur. Bergman testified that Giordano discussed his
employment at a unionized hotel, and described his discomfort with crossing a picket line when
the hotel’s employees went on strike during collective bargaining. Giordano also said that
employees “end up getting replaced” while on strike so that a business can continue to operate.
According to Bergman, Giordano told the employees that in collective bargaining all benefits are
negotiated, so that some benefits might be gained and others might be lost. Giordano also
commented on the open door policy, telling the employees that when a union was certified there
was no direct, one-on-one communication between management and the employees.
Bergman and Marciano also testified regarding Giordano’s response to Yamina Collins’
question regarding the status of employees who did not want to join the Union if the Union was
certified. Bergman testified that she remembered Collins asking the question, but could not
recall Giordano or Marciano’s response.8 Marciano testified that she recalled Collins asking
during one of the meetings run by Giordano what would happen if the Union won the election
and some of the service staff did not want to join.9 Specifically, Collins asked whether
employees who did not want to join the Union would have to do so. Marciano testified that she
interrupted and said that she would respond to Collins’ question. Marciano stated that she said
that the options for employees who did not want to join the Union would be contingent upon the
contract language negotiated between the Union and Respondent. Marciano stated that she
told the employees that if the parties’ contract required that the bargaining unit employees join
the Union, the employees would have to do so or leave their employment. Marciano testified
that Giordano never said that if the Union was brought in employees who did not want to join it
would be fired.10

5 Pier Sixty employees are entitled to use the facilities at the Chelsea Piers Sports Complex at a
reduced monthly rate.
6 Giordano did not testify at the hearing.
7 Ramirez also testified that Giordano had papers with him during the first of the meetings he
attended. Giordano’s notes focus on Gonzalez’s inexperience in union affairs, particularly collective
bargaining negotiations, and mention the possibility of a strike and of changes in negotiated benefits, but
without the level of detail described in the testimony regarding his meetings.
8 Bergman testified that Collins spoke during a number of meetings.
9 Marciano testified that she was present at most, but not all, of the meetings conducted by
Respondent prior to the election.
10 On rebuttal, Gonzalez disputed Marciano’s account. Gonzalez testified that at the meeting with
Giordano which she attended, Giordano finished his remarks, as described above, before Marciano
spoke, and was not in fact interrupted by Marciano. Gonzalez testified that she could not recall what
Marciano said after Giordano was finished speaking. Perez and Lora were also questioned regarding the
Continued
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2. Statements made by Jeffrey Stillwell
Gonzalez, Perez, Lora, and Ramirez all testified regarding the statements made by
Stillwell at his meetings with the employees. They recalled, consistent with Bergman’s
testimony, that Stillwell’s meetings occurred within days of the election. Gonzalez, Perez, Lora,
and Ramirez testified that during Stillwell’s remarks, he told the employees that the business
was a family, and that they should vote against the Union, because he was very concerned that
a union would have a negative effect on the business. Stillwell elaborated that the business had
been built on its reputation for customer service. However, Stillwell said that if a union
represented the employees, Respondent would not be able to provide the same level of service,
because the company would not be able to assign the employees additional duties, such as
putting brochures or menus on the chairs for guests prior to an event. In addition, according to
Stillwell, a union would prohibit the employees from working with other departments in order to,
for example, plate food or stack furniture. Stillwell said that customers would go elsewhere due
to the company’s inability to provide the same level of service if the Union were certified,
resulting in a decline in business. Stillwell continued that if the company lost business in this
manner, it would not have work for the employees.
In addition to the remarks described above, Ramirez testified that Stillwell told the
employees that if the Union were certified, benefits such as the 401(k) plan, the gym facility, and
tuition reimbursement would be eliminated.
Stillwell and Bergman also testified regarding Stillwell’s remarks at the meetings
immediately prior to the election.11 Bergman could not recall the exact statements made by
Stillwell during the meetings that she attended, but testified that the substance of Stillwell’s
remarks involved the pride that the company took in its service and the possibility of the
employees’ losing certain benefits during collective bargaining. Stillwell testified that he began
his presentation by thanking the employees for maintaining the high level of service to
customers, and for not jeopardizing or letting the business suffer during the pre-election period.
Stillwell stated that he told the employees that if the Union won the election, everything would
be negotiated, and the employees could end up with better or worse wages and benefits overall,
because nothing was guaranteed. In particular, Stillwell said that because the Union would
have a smaller number of health plan participants than Chelsea Piers, it would not have the
leverage necessary to obtain a comparable health insurance policy. As a result, in the
negotiating process there was a chance that the employees could end up with a less generous
policy, or the policy could stay the same. According to Stillwell, he told the employees that he
was concerned with maintaining the high level of service the company provided. Stillwell stated
that he had worked with a company where the employees were represented by a union, and
that with union representation “lots of rules that come into play” that can instill a “not my job sort
of mentality,” which would prevent employees “from doing certain tasks,” ultimately resulting in
inferior service. Stillwell stated that he may have used examples of specific tasks to illustrate
this point, such as working on hors d’oeuvres in the kitchen, stacking chairs, and moving a glass
rack. Stillwell denied, however, making any prediction as to the impact of such inferior service
_________________________
issue, and could not recall any mention of contract language pertaining to a closed or open shop when
Giordano responded to Collins’ question.
11 Bergman also spoke during these meetings, and addressed the mechanics of the voting
process.
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on the company’s business overall. Stillwell also stated that he told the employees that if a
union were to become involved the employees would lose the opportunity for “one-on-one type
of communication” with management regarding requests for leave, and that management could
be restricted by strict guidelines or union rules from granting such requests.
3. Statements made by Luisa Marciano
Gonzalez, Perez, Lora, Ramirez, and Martinez testified regarding statements made by
Marciano at the pre-election meetings, in addition to her remarks at the meetings were Giordano
spoke. Like the other managers, Marciano addressed employee benefits and the collective
bargaining process. Gonzalez, Lora, and Martinez testified that Marciano told the employees
that during the negotiating process all employee terms and conditions of employment would be
negotiated “from the beginning,” and that the employees might lose benefits, that there were no
guarantees. Perez testified that Marciano spoke about Gonzalez, telling the employees that she
was inexperienced and could not run a union. Marciano then calculated the amount of dues
that the employees would be paying Gonzalez using a flip chart. According to Perez, Marciano
distributed a list of benefits that Pier Sixty provided to its employees. After she did so, Perez
asked her whether Respondent’s employees were employees at will, and Marciano said yes.
Perez then asked whether the benefits the company currently offered could be taken away at
any time,12 and Marciano said that was the case. Perez went on to ask whether benefits
provided for under a union contract could be taken away, and Marciano responded that they
could not, “but what makes you think that this place is going to be union?” Marciano went on to
ask employees who had been employed by the company for ten years (identified by Paul
Macias) whether any benefits had been taken away, and Perez responded that the medical
benefits had been changed three or four times. Perez also testified that Marciano read from
papers during her presentation regarding negotiations, and stated that during bargaining the
employees could end up with wages and benefits that were either better or worse than what
they currently received.
According to Perez, Ramirez and Martinez, Marciano also addressed the employment
status of employees in the event that they participated in a strike. Perez, Ramirez, and Martinez
testified that Marciano told the employees that if they went out on strike they would lose their
jobs, and it would take awhile for them to be reinstated based upon seniority. Ramirez and
Martinez testified that Marciano stated that during a strike, the company could continue to run
the business with replacement employees, and the striking employees would be placed on a
preferential hiring list to return to work. However, Perez testified that he did not hear Marciano
mention a list, or discuss using temporary employees to continue the company’s operations
during a strike. Finally, according to Ramirez and Martinez, Marciano also reiterated during her
meetings that if the Union won the election the employees would lose the company’s open door
policy, and would not be able to speak with managers on a “one-on-one” basis.
Bergman and Marciano testified for Respondent regarding Marciano’s statements at
these meetings. Bergman testified that she was present for all of Marciano’s meetings with the

12 Gonzalez also testified that she recalled Perez asking this question at a meeting, but could not
recall how the managers present responded. Ramirez testified that during a meeting he attended, Perez
asked why management was putting the union down, because it could be something good for the
company. According to Ramirez, Macias told Perez in response, “you guys have your meeting outside,
so why speak now in front of the staff.”
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employees.13 According to Bergman and Marciano, Marciano began the meetings by stating
that she would be reading from a prepared speech, to ensure that she got everything right.
Bergman then distributed documents to the employees consisting of a list of benefits currently
provided by the company, and quotes from a decision of the Board and of the United States
Court of Appeals for the Sixth Circuit, stating, “Collective bargaining is potentially hazardous for
employees and…As a result of such negotiations, employees might possibly wind up with less
benefits after unionization than before,”14 and “Just as surely as an employer may increase
benefits, in bargaining, he may take them away.”15
Marciano testified that she read the prepared statement verbatim, including the remarks
about strikes, which state as follows:
 When and if a union calls a strike, it most dramatically impacts staff. Simply stated,
those on an economic strike don’t get paid or benefits. They also don’t get
unemployment for the first 7 weeks of the strike. We all know how tough it is out there
and I can’t see how anyone can be thinking that they want to be in that type of situation.
 Also, if people walk out on an economic strike, Pier 60 would have a right to permanently
replace them. That means we can bring in other people to do the work.
 Now none of this sounds good but, if we had events scheduled, we would need to bring
in other people because we simply cannot leave our clients without service. After all, if
we do that, we put the whole business at risk and we just would not let that happen.
 If and when the strike ended and associates who chose to partake in that strike asked to
return to work, we would not be required to take them back if we don’t have open slots.
Instead, they would be put on what is called a “preferential hire or waiting list” and
recalled in seniority order if and when slots open up. Those Associates are NOT fired,
but they could be on that waiting list a long time waiting for spots to become available.
Marciano confirmed that after she completed her remarks, Perez asked whether the
benefits listed on the sheet Bergman had distributed were guaranteed. Marciano responded
that they were not guaranteed, but had been provided by Respondent for many years. Perez
stated that if the benefits were not guaranteed they could be taken away, and Marciano asked
him whether any of the benefits had been taken away during his employment. According to
Marciano, Perez responded that if the employees had a union, the benefits would be
guaranteed. She stated that she responded that everything was up for negotiations, and
nothing was guaranteed. Marciano also confirmed that during this meeting she told Perez in
response to his question that the employees were employees at will.
4. Statements made by James Kirsch and Roland Betts
Gonzalez, Perez, Lora, and Martinez testified regarding statements made by
Respondent’s owners James Kirsch and Roland Betts during one of the final meetings they

13 Marciano stated that she gave the presentation including her prepared statement at three
different meetings.
14 Coach and Equipment Sales Corp., 228 NLRB 440, 441 (1977) (emphasis added).
15 Pittsburgh Plate Glass, Chemical Division v. NLRB, 427 F.2d 936, 947 (1970).
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attended prior to the election. All four testified that during his remarks Kirsch told the employees
that if the union won the election the open door policy would be eliminated, and they would no
longer be able to talk to managers on an individual basis. According to Perez and Martinez,
Kirsch told the employees that they could possibly lose their medical, dental, and other benefits
by bringing in the union, through the “give and take” process of collective bargaining. Lora also
testified that Kirsch told the employees that all of the “great benefits” the employees enjoyed,
including the 401(k) plan, medical benefits, and vacations, would be subject to a negotiating
process where the parties would “sit down” and “start from the scratch,” with no guarantees.16
Lora and Martinez also testified regarding Betts’ remarks at the pre-election meetings.
According to Lora and Martinez, Betts told the employees that the company’s open door policy
would be eliminated if the Union won the election. Lora testified that Betts stated that
Respondent provided superior benefits to those offered by other companies, including its 401(k)
plan, and that if the Union won the election the parties would “start from scratch” or from the
beginning in negotiations, with no guarantees. Martinez testified that Betts also told the
employees that they could lose their medical and dental benefits through the negotiations
process, in that they could end up with either more or fewer benefits overall as a result.
Bergman and Marciano testified for Respondent regarding Kirsch and Betts’ remarks at
these final meetings, but only Marciano addressed the substance of Kirsch and Betts’
remarks.17 According to Marciano, Kirsch told the employees that in collective bargaining
negotiations employees sometimes get more, sometimes get less, and sometimes end up with
the same benefits. Kirsch said that by contrast, without the Union the employees knew what
benefits they had. Marciano testified that Betts basically reiterated Kirsch’s statements
regarding negotiations. Both Kirsch and Betts told the employees that the company was a
family, and that without the Union management was able to speak to the employees without a
third party present.
5. Statements made by Richard Martin and Chris Martino
Ramirez testified that on the day of the meeting he attended with Kirsch and Betts,
Richard Martin approached him about an hour after he began work. Ramirez stated that he was
performing his set-up assignment at that time, arranging coffee trays, when Martin said that he
wanted to talk to him. According to Ramirez, Martin asked whether he wanted to talk about
something that happened during the meeting with Kirsch and Betts, and Ramirez said no.
Martin told Ramirez that he wanted to go upstairs and talk, and led Ramirez upstairs to a small
hallway on the way to the men’s locker room. Martin then asked Ramirez again whether he had
any questions. Ramirez said that a part-time employee had brought up an important point in the
meeting with Kirsch and Betts, complaining that the part-time employees did not receive enough
hours or work days. Martin responded that during the meeting, Kirsch had told the employees
that the company did a lot for them, and provided counseling for managers, meaning
McSweeney. Ramirez responded that he was aware of that. He said that Martin was one of the
best managers in the company, and that many of the employees spoke highly of him. Martin

16 On cross-examination, Lora was also asked whether Kirsch and Betts told the employees that
they could end up with more or less as a result of the negotiating process. Lora responded, “Not
everybody said that,” and testified that he could not recall the exact words Kirsch and Betts used when
discussing negotiations, other than “we will start from scratch” (Tr. 386).
17 Kirsch and Betts did not testify at the hearing.
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then told Ramirez that if the Union was voted in, he and Ramirez would not be able to have
similar conversations, because the open door policy would be taken away.
According to Ramirez, Chris Martino approached them at that point. Martino asked
Ramirez whether there was anything he wanted to discuss. Ramirez asked how the schedule,
which Martino typically prepared, was looking for the next month. Martino responded that he
was not sure, but that if the Union was voted in they would have to start from scratch. Ramirez
testified that this entire sequence of events was approximately 10 to 15 minutes long.
Martin and Martino were both questioned regarding these discussions. Martin testified
that he recalled having a conversation with Ramirez, and asking him whether he had any
questions about the union process, during the time of the organizing campaign. However, he
could not recall the time or location of the conversation, and could not recall anything else that
was said. Nor could he recall observing Martino speak to Ramirez. Martino testified that he
was responsible for scheduling employees, including Ramirez, but could not recall any
conversation with Ramirez and Martin around the time of the meetings with Kirsch and Betts.
Martino stated that he spoke to employees regarding the Union, but could not recall which
employees he spoke to or what was said. He denied telling employees that bargaining would
start from scratch, stating that he would not have used that phrase.
D. Respondent’s Practices Regarding Servers’ Conversations During Work Time
Gonzalez, Perez, Lora, Ramirez, and Martinez all testified that prior to the filing of the
petition, servers were generally permitted to talk to one another regarding non-work issues
during work time when guests were not present. Gonzalez, Perez, Lora, Ramirez and Martinez
all testified that while performing their set-up assignments prior to the beginning of an event, in
the kitchen, and after guests left for the night, employees discussed their personal affairs,
entertainment, sports, and the news, in addition to work-related issues. These conversations
took place several times each day in areas where guests were not present, including the back of
the house near the coffee station, the kitchen, and the apron outside of the facility. According to
Gonzalez, Perez, Lora, Ramirez and Martinez, managers, including Stillwell, McSweeney,
Macias, and Martin, heard these conversations and occasionally participated. For example,
Martinez testified that she had discussed topics such as vacations, pets, and car troubles with
McSweeney, Macias, Martin, and Stillwell during her shift on a number of occasions, and
Ramirez testified that Giordano discussed baseball and tattoos with members of the service
staff. Lora testified that he was speaking with a co-worker regarding Thanksgiving dinner
during set-up for an event in November 2010, when Macias joined the conversation to discuss
his own Thanksgiving meal. The employees testified that these conversations could last five or
ten minutes. Gonzalez, Perez, and Martinez testified that prior to September 2011, they had
never been told by a manager that employees should not speak to one another if there were no
guests in the area.18 McSweeney testified that he breaks up small groups of employees

18 Lora testified that on a few occasions during his seven years with the company, he had heard a
manager tell employees to cut down on the talking and get the work done while they were setting up a bar
or tables, without guests present. The evidence establishes that Perez was informed that he had a
propensity for “excessive chatting with fellow associates on the floor when doing his assignments or doing
set up” during his Annual Performance Evaluation dated February 25. Perez also received a written
warning on March 1 for an incident involving “chatting” with another employee “for more than a
reasonable amount of time” and “ignoring his assigned bussing duties” during an event, but it is not clear
Continued
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conversing with one another on the floor when guests are present “all the time.” When guests
are not present, he testified that he would “possibly” do so in the event that employees were
“just standing there not getting any work done.”
According to Gonzalez, Perez, Lora, Ramirez, and Martinez, after the petition was filed
on September 22, McSweeney began prohibiting them from speaking with one another during
periods of work time when guests were not present. Gonzalez and Perez testified that one
afternoon soon after the petition was filed, they were discussing a trip to Puerto Rico with Lora
in the Saugerties Room of the Lighthouse, preparing to go to the kitchen after finishing their set-
up assignments. Gonzalez, Perez, and Lora said that as they were talking, McSweeney walked
by and said to Gonzalez, “take your meetings outside,” in what they described as an
uncharacteristically harsh manner. According to Gonzalez and Perez, other servers who had
completed their set-up assignments were standing around the bar and buffets chatting, but
McSweeney did not speak with them. Gonzalez left Perez and Lora and approached
McSweeney, telling him that the employees were discussing a trip to Puerto Rico, and asking
whether he wanted to join them. According to Gonzalez, McSweeney looked at her but did not
say anything. McSweeney testified that he did not recall this conversation, but was generally
concerned that employees’ discussions of the Union and the upcoming election would interfere
with their work.
Gonzalez, Perez, Ramirez and Martinez described a similar incident with McSweeney
approximately two weeks prior to the election. On that occasion, they were setting up the
dessert buffet in the Pier Sixty venue’s Olympic Room with about twelve to fifteen other servers,
while the guests were in another room finishing their dinner. The servers were apparently
waiting for linens and other equipment to arrive so that they could be set up at the dessert
buffet, and were standing in several small groups, chatting with one another. According to
Gonzalez, Martinez and Lora, as Gonzalez, Perez, Lora, and servers Jonathan Rosario and
Danny were speaking, McSweeney approached Gonzalez, and said in a harsh manner, “break
up the group. We don’t want people talking in groups.” Perez and Ramirez testified that
McSweeney said, “this is what I’m talking about – talking,” and told the servers to stop speaking
with one another. Perez, Martinez and Ramirez testified that Gonzalez attempted to explain to
McSweeney that the servers were waiting for linens for the buffet. According to Gonzalez and
Martinez, Gonzalez asked McSweeney whether he was harassing them, and McSweeney
responded, “I don’t care how you take it. Take it however you want to take it.” Gonzalez told
McSweeney that she was taking it in that way, and that she was “going to do something about
it.” McSweeney said, “do whatever you have to do,” and walked away. Martinez testified that
she then heard McSweeney call one of the captains on his radio, who confirmed that the
servers in the Olympic Room were waiting for further instructions from the chef. McSweeney
testified that he could not recall this incident.
In addition, Perez testified that after the petition was filed, McSweeney told the
employees during briefings about the events after the family meal that he did not want to see
anyone talking in groups of two, three or four. Perez further testified that during the week before
the election, while picking up knives to set up his tables, he greeted another server wiping the
silver, and asked the server what was going on. According to Perez, McSweeney pulled him
over, and told him, “I just said in the meeting I don’t want to see people talking.” Perez said that
_________________________
from the warning whether guests were present. Perez testified that he refused to sign the warning
because there were no guests present at the time.
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had only asked the server how he was doing while retrieving silver for his table, and
McSweeney told him that if he did it again he would be sent home. In addition, Perez testified
that Macias spoke to him almost every day during the weeks prior to the election, accusing him
of “having your little secret meeting.” McSweeney did not testify regarding these specific
incidents.
E. The Discharge of Hernan Perez
1. Events Preceding Perez’s Facebook Posting
Hernan Perez began working for Respondent as a server on August 25, 1998, and
worked full-time as a server and bartender until he was discharged on November 9, 2011. His
responsibilities as a server included arranging tables and performing other set-up assignments,
serving food and drinks, bussing tables as assigned, and breaking down the room after an event
by clearing linens and stacking chairs. As a bartender, he was responsible for mixing and
serving drinks.
Gonzalez, Perez, Lora, Ramirez, and Martinez all testified regarding the manner in
which the service staff coordinates service of guests during an event. Generally, when guests
are entering a room in which the servers are standing, the servers are expected to face the
guests as they come in. Servers are assigned to teams which cover specific groups of five to
six tables in order to serve food and clear those tables during an event.19 Each server on the
team is assigned one specific table for which they are responsible, and each team contains a
“lead” server, who has no specific assigned table but provides back-up coverage for all of the
team’s tables when, for example, a server with a specifically assigned table needs assistance or
is on a break. Servers serve each course and clear the tables in a specified order as a team,
after receiving hand signals from the captain indicating that it is time to do so. While waiting for
these signals, the servers on the team stand together in a group near their assigned tables. In
between the service and clearing of particular courses, while the guests are eating or watching
a program, the servers are expected to stand close enough to observe assigned tables, in case
a guest needs anything. However, they are not to stand not immediately adjacent to their
assigned table, and must not position themselves in a manner that would obstruct the guests’
view of the program. The pace of work fluctuates during an event, and generally servers are
less continuously busy during corporate and fundraising events, which tend to have structured
programs such as speeches and presentations, than during social events such as weddings. In
order to take a break, a server informs the captain, and the other servers on the team proceed
to cover the table while the server taking a break is away. Perez, Ramirez, and Martinez
testified that if a server’s break is too long, the captain will seek them out and inform them that
they should return to their tables.
The manager with overall responsibility for the event primarily interacts with the client
and the captains, in order to ensure that the event is unfolding in the manner envisioned by the
client. Managers use radios to contact captains as necessary, and move around the entire
area, both the dining room and the kitchen, in order to ensure that everything is proceeding
smoothly.

19 These assignments are made during the meeting of the staff and managers immediately after
the family meal. During this meeting, the manager with overall responsibility for the event discusses
everything scheduled to occur, including the menu and program, and distributes a diagram showing the
configuration of stations, tables, and equipment in the venue involved.
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On October 25, Perez was working a fundraising event for the Andrew Glover Youth
Program, which took place in the Lighthouse. Perez testified that during the cocktail hour, from
6 p.m. to 7 p.m., he was standing in the gallery area butlering drinks with two other employees.
According to Perez, he and his co-workers were facing the guests, who were entering the
gallery area for cocktails, and were not speaking to one another. Perez testified that
McSweeney stood about twelve to fifteen feet away, observing him for about a minute.
McSweeney then walked quickly toward him, and said, “Turn your head that way and stop chit-
chatting,” in a loud voice, while pointing his arm in the direction of the arriving guests.
McSweeney then left, but Perez was upset, because he felt that McSweeney had addressed
him in a derogatory manner.20
After the cocktail hour, the guests proceeded to the Navesink, Montauk, and Barnegat
Rooms for dinner and the fundraising program. Gonzalez, Perez, and Lora were assigned table
22 or 23 in the Montauk Room, table 25 in the Navesink Room, and table 24 in the Montauk
Room, respectively, during the event.21 Although these areas are referred to as “rooms,” there
are no walls between them. Because the Rooms are on different levels, there are steps down
from the Barnegat Room to the Montauk Room, and from the Montauk Room to the Navesink
Room, the lowest of the three.
At approximately 7 p.m., the guests at the event had were seated at the tables,
appetizers had been served, and the program for the event had begun. Gonzalez, Perez, Lora,
and two other servers were standing near tables 22 and 23, directly in front of a curtain which
formed a wall between the Montauk Room and the hallway. According to Gonzalez, Perez and
Lora, the servers were facing the guests, watching the tables and waiting for a signal from the
captain to clear the tables after the appetizer course. Perez testified that he saw McSweeney
standing in the corner of the Barnegat Room watching them for about a minute. Gonzalez,
Perez and Lora testified that suddenly McSweeney rushed up to Gonzalez and opened up his
arms, indicating that the servers should spread out. According to Gonzalez, Perez, and Lora,
McSweeney then said, “Spread out, move, move” in a harsh tone of voice. Although the servers
moved apart along the curtain, McSweeney said, “I said spread out,” or “Spread out more,” in a
louder voice, and the servers moved further apart. Lora testified that after he moved away,
McSweeney continued to speak to Gonzalez and Perez. Gonzalez and Perez testified that a
guest at table 23 turned to look at the servers and McSweeney after he raised his voice.
McSweeney testified that this incident occurred not after the appetizers had been
served, but a few moments after the dining area (the Navesink, Montauk, and Barnegat Rooms)
had been opened, and the guests had begun to enter. McSweeney testified that in the Montauk
Room he observed Perez “huddled together” with Gonzalez, Lora, and possibly other servers as
well. According to McSweeney, he asked the group to separate. He then walked away,
returned, and noticed that they were still huddled together, so he asked them to separate again.
One of the servers moved away, but Perez did not, so McSweeney told Perez that he was
nowhere near his table, and asked him to move closer to it.
Perez testified that after McSweeney left the area, he and Lora asked Gonzalez whether
she was alright. Gonzalez responded that she had to confront McSweeney, because he spoke

20 McSweeney did not testify regarding this incident.
21 These table numbers refer to the plan of the Lighthouse prepared for the Andrew Glover Youth
Program event on October 25, in evidence as General Counsel’s Exhibit 4.
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to her in an inappropriate manner. Gonzalez testified that she went to check on Perez and
Lora, because she believed that they had been upset by McSweeney. Gonzalez told Perez and
Lora that they needed to be strong and hold on, because the election was two days away.
According to Gonzalez, Perez responded, “I am sick and tired of this. I don’t like the way he
talks to us. He doesn’t know how to talk to us. I’m going to talk to him.” Gonzalez told Perez
that he was too upset to speak to McSweeney at that point, and said that she would talk to
McSweeney herself. Gonzalez advised Perez to take a break in order to calm himself down.
Gonzalez testified that she saw McSweeney alone near the kitchen entrance some time later,
and told him that he needed to learn how to talk to the staff. McSweeney did not respond, and
Gonzalez left.22
Perez testified that he observed Gonzalez speaking to McSweeney. At this point the
program was going on, and according to the schedule which had been described to the
employees at the beginning of the shift, the program would continue for another half hour.
Perez testified that he felt mistreated and harassed, and needed a break to calm down, so he
went to the kitchen and informed one of the captains that he was going to take a break. After
using the bathroom, Perez went outside of the building to the apron area. Very angry, he got
out his iPhone, went onto his personal Facebook page, and posted, “Bob is such a NASTY
MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking
family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”23 He then returned to the building,
where the program was still going on. About ten minutes after he returned, the servers cleared
the appetizers, and the event continued along its normal course.
Perez testified that when he checked his Facebook page the next day, other individuals
had posted comments after his initial remarks regarding McSweeney. The first comment after
Perez’s original posting was from Pier Sixty server Crystal Arnold, who stated, “respect is a two
way street.” After Arnold’s comment, Martinez posted that respect goes both ways, but when
someone disrespects you all of the time, you end up losing respect for them. In addition,
Ramirez posted that McSweeney “did the nasty with a waitress,” and a former Pier Sixty
employee named Tommy responded, “Who, Sharon?” Perez then responded to Ramirez and
Tommy by posting that they shouldn’t involve other people, and should not comment about
them. Martinez also wrote that if Ramirez and Tommy did not know what they were talking
about and should not comment. Perez testified that on the day after the election he took down
his initial post regarding McSweeney and all of the comments following it, as well as other
comments he had posted encouraging others to vote for the Union.
2. Respondent’s Investigation and Perez’s Discharge
Dawn Bergman testified that she learned of Perez’s Facebook posting regarding
McSweeney on October 26, from Senior Purchasing Manager Carol Gerwell, who was able to
view the comments on Perez’s Facebook page on her computer in the office. Bergman read the

22 McSweeney provided an identical account of their interaction during his testimony.
23 Perez testified that his Facebook page was set so that it could only be viewed by individuals
with whom he had become “friends” on Facebook, and not anyone else who visited the site. Perez
testified that at the time he had about ten Facebook “friends” who were employees of Pier Sixty, and no
“friends” who were managers or customers. Ramirez and Martinez testified that they were able to view
Perez’s posting later because they are “friends” of Perez on Facebook and receive Perez’s postings on a
live feed, meaning that they need not search the Internet for Perez’s Facebook page, but automatically
receive his new postings.
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Facebook posting on Gerwell’s office computer, printed out Perez’s original comment (according
to Bergman, the comments made by individuals other than Perez could not be printed out), and
consulted with Marciano and Respondent’s attorney.24 Because the union election was
imminent they took no further action at that time.
On October 31, Bergman spoke to McSweeney, who told her that he had also seen
Perez’s Facebook posting. Bergman asked McSweeney whether anything out of the ordinary
had occurred on October 25 to precipitate Perez’s comment, and McSweeney said no.
McSweeney told Bergman that because Perez and a few other servers were clustered together
in an area far away from Perez’s table, he told the servers to “please disperse,” and “Go back to
your table.” Bergman asked McSweeney to prepare a written memo regarding his interaction
with the servers. McSweeney’s memo states that at approximately 7 p.m. he observed Perez,
Lora and Gonzalez “standing in very close proximity to each other” in the Montauk Room,
despite Respondent’s policy “not to have servers standing in clusters.” As a result, McSweeney
told the servers, “Let’s break this up please, we can’t all be standing together,” but they only
took a “very small step away from each other” and were “still all very close.” McSweeney
therefore said, “That’s not good enough,” and told them to separate further. McSweeney also
stated that Perez was not “anywhere near his table,” and as a result he told Perez to “please go
stand” nearer to it. Gonzalez, Perez, and Lora then moved away from each other, and
McSweeney left.
Bergman and Giordano then met with Perez to discuss the Facebook posting. When
shown the Facebook posting during this meeting, Perez denied that the “Bob” he mentioned
was McSweeney, contending that he had made the comment about a different “Bob” that did not
work at Pier Sixty. Bergman testified that she asked Perez why he did not clear that up after the
individuals responding to his comment mentioned McSweeney, stating, for example, that he “did
the nasty with some waitress.” Perez countered that he did respond, by saying that people
should not comment. Bergman asked Perez why he wrote “Vote Yes for the Union,” if the
comment preceding that statement was not about McSweeney, and Perez said that he could
write whatever he wanted about the Union. Bergman testified that when she questioned Perez
about the encounter with McSweeney earlier the evening of October 25, Perez claimed that the
incident had occurred two weeks previously. Bergman asked Perez to provide her with
information to identify the “Bob” that Perez claimed to be writing about, by, for example, showing
her the text he was responding to regarding “Bob” or the call log containing “Bob’s” number, and
Perez declined to do so. Bergman then told Perez that the company needed to conduct an
investigation, and that Perez would be suspended pending the results, as his posting involved
“potentially a harassment situation.”
Perez admitted that during this meeting with Bergman he falsely denied that his
Facebook posting was about McSweeney, and claimed that he was making the comments
about a different “Bob.” Perez also testified that he declined to provide information to identify
the “Bob” who was the subject of his posting. Perez further admitted that he told Bergman and
Giordano that any incident between McSweeney and himself took place about two weeks prior

24 Marciano testified that she was also able to view and print out Perez’s Facebook page and his
comment regarding McSweeney after discussing it with Bergman, even though she is not a “friend” of
Perez’s. Marciano also obtained access to and printed out materials from Perez’s Facebook page during
the hearing in this matter, but this evidence is not probative as to the Facebook privacy settings Perez
had implemented as of the fall of 2011, and what materials on his Facebook page could be viewed by
individuals who were not Facebook “friends” of his at that time.
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to the meeting, and not on October 25. Perez testified that he told these falsehoods because he
was afraid of being fired, and because he was not under oath when he met with Bergman and
Giordano. Perez stated that during the meeting, he told Bergman that he supported the Union,
and voted for the Union in the representation election. Perez testified that he asked Bergman
whether there was something wrong with that. According to Perez, Bergman responded that he
could write whatever he wanted about the Union on Facebook. After the meeting, Giordano
directed Perez to clean out his locker, and told him that he could not return to Chelsea Piers.
Bergman proceeded to meet with various employees who were present on October 25,
and/or participated in the Facebook discussion, including Gonzalez, Lora, Ramirez, Martinez,
Crystal Arnold, and other employees. According to Bergman, this was her general practice in
evaluating incidents which could potentially result in discipline. Although Ramirez and Martinez
denied that the “Bob” mentioned in the Facebook discussion was McSweeney,25 Bergman
concluded that Perez’s initial posting was in fact about McSweeney. Bergman then spoke with
Giordano and the company’s owners, and ultimately decided to discharge Perez for
harassment.26 Bergman testified that she made the decision to discharge Perez based upon
the egregiousness of his language, which was inappropriate for the workplace, disrespectful,
and potentially defamatory, and the fact that Perez did not take the posting down immediately.27
Bergman testified that at the time that she made the decision to discharge Perez, she had
learned from Stillwell and Giordano, who had met with Gonzalez, that Perez was upset by
McSweeney’s comments to him prior to his Facebook posting. However, she testified that she
considered McSweeney to be “doing his job” by telling the servers to “separate and go back to
their area,” and not provoking them in any way. Bergman also testified that she concluded that
even if Perez had been provoked in some way into making the comment in the first place, his
failing to take it down immediately was unacceptable.
Subsequently, on November 8, Bergman called Perez and asked him to come in the
next day. On November 9, Perez and Gonzalez met with Bergman and Giordano. Giordano
stated that Respondent had decided to discharge Perez, and Bergman provided him with written
information regarding his benefits. Gonzalez asked Giordano for a reason why Perez was being
discharged, and Bergman said that he had violated company policy. Gonzalez asked for a copy
of the policy and a written statement as to the reasons for Perez’s discharge, and Bergman and
Giordano declined to provide them.
III. Analysis and Conclusions
A. Statements Allegedly Violating Section 8(a)(1)

25 Ramirez and Martinez testified that Perez asked them to do so. Perez apparently admitted that
the posting was about McSweeney, and not another “Bob,” during a hearing regarding his application for
unemployment insurance benefits. Ramirez was not disciplined for his conjecture during the Facebook
discussion that McSweeney had “done the nasty” with another server.
26 Respondent maintains a policy prohibiting “Sexual Harassment” and “Other Forms of
Harassment.” The latter includes harassment based upon age, race, religion, color, national origin,
citizenship, disability, marital status, familial status, sexual orientation, alienage, liability for service in the
Armed Forces, or “any other classification protected by Federal, State, or Local laws.” Respondent
contended in its response to Perez’s claim for unemployment insurance benefits that Perez was
discharged for violating its harassment policy.
27 Bergman testified that the previous warning issued to Perez did not play a role in her decision to
discharge him, and that he was discharged on the basis of the Facebook comments alone.
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1. General considerations regarding witness credibility
I generally credit the testimony of Evelyn Gonzalez, Endy Lora, Robert Ramirez, and
Esther Martinez regarding the statements of Respondent’s managers during the meetings prior
to the election. These servers are still employed by Respondent, and the Board has found that
such testimony may therefore be considered particularly reliable in that it is potentially adverse
to their own pecuniary interests. Covanta Bristol, Inc., 356 NLRB No. 46 at p. 8 (2010);
Flexsteel Industries, 316 NLRB 745 (1995), aff’d, 83 F.3d 419 (5th Cir. 1996). However, in
considering their testimony with respect to the specific statements made by Respondents’
managers, as discussed below, I have also taken into account factors which might affect that
testimony’s reliability. For example, while I found Evelyn Gonzalez to be a generally credible,
thoughtful, and straightforward witness, I have also considered her role as the leader of the
EGU in assessing the probative value of her testimony. I have also considered the contradiction
between portions of Robert Ramirez’s testimony and his affidavit provided during the
investigation, and have given his testimony lesser weight with respect to these specific issues.
While I found him to be somewhat hyperbolic overall, I have generally credited the testimony of
Hernan Perez regarding the meetings he attended, to the extent that it is not directly
contradicted by the testimony of other witnesses.
In certain situations, as discussed in further detail below, the testimony of General
Counsel’s witnesses regarding the statements of Respondent’s managers was not effectively
contradicted by the testimony of Respondent’s witnesses due to, for example, a lack of
recollection. As a result, I have credited the testimony of General Counsel’s witnesses in these
circumstances, unless an independent reason exists for declining to do so. See, e.g., Precoat
Metals, 341 NLRB 1137, 1150 (2004) (lack of specific recollection, general denials, and
comparative vagueness insufficient to rebut more detailed positive testimony).
In assessing the probative value of the testimony overall, I have also considered the
manner in which the pre-election meetings with Respondent’s managers were conducted. The
evidence establishes that Respondent formulated a schedule for different managers to make
presentations to the employees prior to the election, so that Giordano spoke with the employees
during the first week, Marciano during the second week, Kirsch and Betts during the third week,
and Bergman and Stillwell during the fourth week. The evidence demonstrates that the same
manager gave their presentation on several occasions during the week that they were
scheduled to meet with employees, as different employees were present on different evenings,
depending upon the events they worked. The record also establishes that in some cases
witnesses called by Respondent to testify about the remarks of a particular manager did not
attend every meeting during which that manager spoke. Given the number of meetings
involved, and the fact that servers often attended different meetings, as they were scheduled to
work events on different days, it is entirely possible in certain cases that the employees testified
regarding meetings that none of Respondent’s witnesses attended. I am also mindful of the fact
that different employee witnesses may have attended different meetings conducted by the same
manager.
Respondent argues that General Counsel’s witnesses were less than credible overall,
because on direct examination they often did not provide a complete context for the specific,
allegedly unlawful statements of Respondent’s managers. Respondent contends that General
Counsel’s witnesses therefore did not provide a complete and detailed account of the
managers’ statements on direct examination. Respondent also asserts that when the context
for the managers’ statements was elicited on cross-examination, the statements alleged in the
Amended Complaint as violations of Section 8(a)(1) were revealed to consist of lawful
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campaigning. Given the number of meetings involving discussions with Respondent’s
managers that the servers attended prior to the election, I do not find that their failure to provide
an extensive context for the specific remarks they described during their testimony is
fundamentally detrimental to their overall credibility. However, when determining whether the
statements made by Respondents’ managers were in fact unlawfully coercive, I have evaluated
the entire context for the specific statements which allegedly violated Section 8(a)(1), regardless
of whether it was elicited on direct or cross-examination.
2. Alleged threats by Giordano, Martin, and Kirsch regarding the loss of Respondent’s
“open door” policy (Complaint ¶ 6(a), (g), (i))
The evidence establishes that Giordano threatened employees with the loss of
Respondent’s “open door” policy in the event that the Union won the election. Gonzalez, Perez,
Lora, Ramirez, and Martinez all testified that Giordano told the employees in virtually every
meeting he held prior to the election that if the Union prevailed in the election the employees
would lose the open door policy, because management would not be able to speak to them
without a Union representative present. Bergman also testified that in the meetings she
attended, Giordano told the employees that if a Union represented them they would have no
opportunity for direct, one-on-one communication with management. Similarly, Gonzalez,
Perez, Lora and Martinez testified that Kirsch told the employees that if the Union won the
election the open door policy would be eliminated, and employees would no longer be able to
approach managers on an individual basis. Marciano also testified that Kirsch told the
employees that without a union, managers could speak with them on an individual basis. As a
result, I find that Giordano and Kirsch told employees during their meetings that the employees
would lose the open door policy if the Union was certified.
The evidence also establishes that Martin threatened Ramirez with the loss of
Respondent’s open door policy. Ramirez testified that during a conversation initiated by Martin
soon before the election, he commented that Martin was one of the company’s best managers.
Martin told Ramirez in response that if the union won the election they would not be able to
speak individually, because the open door policy would be taken away. Martin testified that all
he could recall of this conversation was asking Ramirez whether he had any questions
regarding the representation election process, which does not effectively rebut Ramirez’s
testimony. As a result, I find that Martin informed Ramirez that if the Union was successful in
the election the company’s open door policy would be eliminated.
It is well-settled, however, that a statement that employees will not be able to interact
individually with management after a union’s certification is permissible, in that it “simply
explicates one of the changes which occur between employers and employees when a statutory
representative is selected.” Tri-Cast, Inc., 274 NLRB 377 (1985); see also Dish Network Corp.,
358 NLRB No. 29, at p. 1-4 (2012) (Member Block, concurring). As General Counsel contends,
in Guardian Automotive Trim, Inc., 337 NLRB 412, 418-419 (2002), the Administrative Law
Judge, affirmed by the Board, found that the employer violated Section 8(a)(1) by “telling
employees that an open door policy ends with unionization” during meetings which included
other unlawful statements, such as threats to withhold an employee bonus and eliminate air
conditioning. However, in that case, as the General Counsel notes, Respondent did not file
exceptions to the ALJ’s decision, and the Board stated that “we adopt the judge’s decision pro
forma.” Guardian Automotive Trim, Inc., 337 NLRB at 412, n. 1. As a result, Guardian
Automotive Trim is not precedential authority for the proposition that the threat to eliminate an
open door policy violates Section 8(a)(1) of the Act, even if combined with other unlawful
statements on the employer’s part. I therefore find that Respondent did not violate Section
8(a)(1) of the Act by threatening employees with the loss of its open door policy if the Union won
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the election, and shall recommend dismissal of paragraphs 6(a), (g), and (i) of the Amended
Complaint.
3. Alleged threats by Giordano, Stillwell, Kirsch, and Bates regarding the loss of
benefits, and Martino’s statement that bargaining would “start from scratch”
(Complaint ¶ 6(b), (d), (f), (j), (k))
The Board has characterized employer statements during an organizing campaign that
bargaining will “start from scratch” as “dangerous phrases,” involving “the seed of a threat that
the employer will become punitively intransigent in the event that the union wins the election.”
BP Amoco Chemical-Chocolate Bayou, 351 NLRB 614, 617 (2007) (internal quotations
omitted). Such statements violate Section 8(a)(1) when, in their overall context, they
“effectively threaten employees with the loss of existing benefits,” and create the impression that
the employees may in the end receive only “what the Union can induce the employer to restore.”
Id.; see also Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980), enfd, 679 F.2d 900 (9th Cir.
1982). When, however, statements simply describe the ordinary “give and take” of the
bargaining process, they generally constitute permissible employer speech. BP Amoco
Chemical, 351 NLRB at 617-618; see also Wild Oats Markets, Inc., 344 NLRB 717, 717-718
(2005); Noah’s Bay Area Bagels, LLC, 331 NLRB 188, 188-189 (2000). The Board also
considers whether employer statements regarding bargaining arise “in direct response to union
promises,” and are unaccompanied by other unfair labor practices, in order to determine
whether they constitute legitimate campaigning. BP Amoco Chemical, 351 NLRB at 617;
Noah’s Bay Area Bagels, LLC, 331 NLRB at 188-189. Statements regarding the loss of
existing employee benefits are similarly evaluated in terms of whether they are more reasonably
construed as “a direct result of selecting the Union,” as opposed to “a possible outcome of
good-faith bargaining.” BP Amoco Chemical, 351 NLRB at 617; Noah’s Bay Area Bagels, LLC,
331 NLRB at 188.
Here, there is no evidence that any statements on the part of Respondent’s managers
regarding employee benefits and the collective bargaining process arose in response to specific
promises made by Gonzalez or the EGU. Instead, they were part of the managers’ prepared
presentations during the meetings arranged by Respondent prior to the election. In addition, the
evidence establishes that Respondent committed other violations of Section 8(a)(1) during this
series of meetings, sometimes during meetings led by the same manager, as discussed below.
Turning to the specific statements at issue, the credible evidence overall establishes that
Giordano unlawfully threatened employees with the loss of benefits during the pre-election
meetings he conducted. Perez, Lora, Ramirez, and Martinez all testified that Giordano told the
employees that they would lose current benefits, including their 401(k) plan, gym privileges,
tuition reimbursement, and medical and dental benefits, if the Union was certified, or, as Lora
testified, that “we will have to start all over from the beginning from scratch.” Although Perez
testified that Giordano referred to the “give and take” of negotiations, according to Perez he did
so by stating that if the Union obtained higher wage rates for employees, Respondent would
“take away your medical benefits.” Overall, I find the testimony of General Counsel’s witnesses,
some of which are current employees, to be more reliable than Bergman’s contention that
Giordano only told them that the employees might “gain some things” or “lose some things” in
the context of collective bargaining, because there were “no guarantees.” Bergman testified
that she only attended Giordano’s meetings “for a while,” and stated, more generally, that the
meetings she did attend, “kind of run together” in her memory (Tr. 593, 598). As a result,
Giordano’s statements in the pre-election meetings did not sufficiently attribute any loss in
benefits to the ordinary workings of a good-faith collective bargaining process. They were
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instead unlawful threats predicating the loss of the employees’ current benefits on their selection
of the Union, as alleged in Paragraph 6(b) of the Amended Complaint.
The evidence overall does not establish, however, that Stillwell threatened employees
with the loss of benefits such as the 401(k) plan, use of the gym facilities at a reduced price, and
Respondent’s tuition reimbursement program. Ramirez was the only employee who testified
regarding such a statement on Stillwell’s part. While Ramirez testified on direct examination
that Stillwell told the employees that these benefits would be “taken away” if the Union won the
election, in his affidavit he stated that Stillwell told the employees that “everything is negotiated,”
and that “after negotiations” the employees might end up with lower wages or fewer benefits
than they currently had (Tr. 428-430, 469). Although Ramirez testified on redirect examination
that his direct testimony, and not his affidavit, was the more accurate description of Stillwell’s
remarks, he provided no explanation for the discrepancy between them (Tr. 486-487). The
version contained in Ramirez’s affidavit, which was provided at a time closer to the events which
it describes than his testimony, is roughly consistent with Stillwell’s description of his statements
– that everything would be negotiated, nothing was guaranteed, and the employees could end
up with better or worse wages and benefits as a result of the negotiating process. Such
statements constitute permissible employer campaigning. Flexsteel Industries, 311 NLRB 257
(1993) (employer lawfully told employees that “present benefits could be lost,” by describing “the
give and take of bargaining”); Bi-Lo, 303 NLRB 749, 749-750 (1991), enfd., 985 F.2d 123 (4th
Cir. 1992). As a result, the evidence overall does not establish that Stillwell unlawfully
threatened employees with the loss of benefits, and I shall recommend that Paragraph 6(d) of
the Amended Complaint be dismissed
.
Similarly, the evidence does not establish that Kirsch and Betts threatened employees
with the loss of benefits during their presentations. While Perez and Martinez testified that
Kirsch told the employees that they could lose benefits if the union won the election, they stated
on cross-examination that Kirsch attributed any changes in terms and conditions of employment
to the “give and take” of collective bargaining negotiations. Lora testified that during the
meeting he attended, Kirsch and Betts told the employees that all of the “great benefits” they
enjoyed, including their 401(k) plan, medical benefits and vacations, would have to be
negotiated, and that the parties would “start from scratch,” or from the beginning. However,
Lora also testified on cross-examination that Kirsch and Betts both told the employees that their
benefits would be subject to the negotiating process, and that there would be no guarantees (Tr.
385-386). In addition, Lora admitted that he could not remember the exact language used by
Kirsch and Betts28 (Tr. 386). Overall, I find that Lora’s testimony, consistent with that of
Marciano as well as Perez and Martinez, establishes that Kirsch and Betts’ couched statements
regarding the loss of benefits in references to the negotiating process, such that they constituted
permissible campaigning. Albany Medical Center, 341 NLRB 1258, 1264 (2004) (statement that
“bargaining would be from scratch” permissible in the context of statements regarding the

28 When asked whether Kirsch and Betts told employees that they might end up with more or less
overall as a result of collective bargaining negotiations, Lora responded, “Not everybody said that” (Tr.
386). I found Lora to be a credible and straightforward witness who generally testified to the best of his
recollection, and made a spontaneous effort to correct his own testimony when he believed it to be in
error (Tr. 393-394). I find based upon Lora’s overall credibility and the care he took with his testimony
that if he had specifically remembered Kirsch and Betts’ comments in this regard, he would have
indicated as much. I therefore find this aspect of his testimony not probative as to whether or not Kirsch
and Betts more specifically described the “give and take” of collective bargaining during their
presentations, at least at the meeting Lora attended.
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concept and process of collective bargaining). As a result, the evidence does not establish that
Kirsch and Betts violated Section 8(a)(1) by threatening employees with the loss of benefits, and
I shall recommend that Paragraphs 6(j) and (k) of the Amended Complaint be dismissed.
Finally, the evidence establishes that Martino threatened Ramirez with the loss of
benefits during their conversation the day that Ramirez attended the meeting with Kirsch and
Betts. I credit Ramirez’s testimony that when he asked Martino how the schedule was looking
for the next month, Martino responded that he was not sure, but that if the Union won the
election they would have to start from scratch. Martino stated during his testimony that he was
responsible for scheduling employees, including Ramirez, and that he spoke to employees
about the Union prior to the election. However, he had no recollection of the conversation with
Ramirez, so that Ramirez’s testimony in this regard is effectively unrebutted. Martino’s
comments to Ramirez do not include any mention of a good-faith collective bargaining process,
and fairness in scheduling and assignment of work hours was one of the concerns raised by the
employees in their petition and meetings with management the earlier in the year. As a result, I
find that Martino’s statement to Ramirez impermissibly conveyed the impression that Ramirez
would receive less desirable schedule and work hour assignments if the Union won the election.
Martino’s remarks therefore constituted a threat of the loss of benefits in violation of Section
8(a)(1), as alleged in Paragraph 6(f) of the Amended Complaint.
4. Alleged threats of discharge by Giordano and Marciano (Complaint ¶ 6(c), (h))
General Counsel contends that Respondent unlawfully threatened employees with
discharge in two different meeting contexts – during Giordano’s remarks in response to a
question raised by employee Yamina Collins, and during comments made by Giordano and
Marciano regarding the status of employees who participated in a strike. Gonzalez, Perez,
Lora, Ramirez, and Martinez all testified that when Collins asked what would happen to
employees who did not want to be a part of the Union if the Union was certified, Giordano
responded that employees who did not want to join the Union would lose their jobs. Gonzalez,
Ramirez and Martinez testified that Giordano said that he would have to discharge such
employees. Perez and Lora stated that Giordano told the employees that if they did not join the
Union, they could not continue to work for Respondent.
The evidence establishes that Giordano’s statements in this respect constituted a threat
of discharge in violation of Section 8(a)(1). While caselaw considering the legal import of such a
remark is sparse, the Board has sometimes held that misstatements of the law regarding
employee and contractual union security obligations do not violate Section 8(a)(1). For
example, in New Process Co., 290 NLRB 704, 707 (1988), enf’d., 872 F.2d 413 (3rd Cir. 1989),
the Board held that the employer did not violate Section 8(a)(1) by telling employees that the
union would likely seek a contract provision conditioning continued employment on
membership, so that an employee who lost their membership could lose their job. The Board
reasoned that although the statement misrepresented the law, it did not constitute a threat of job
loss, as discharge was explicitly predicated on the union’s termination of the employee’s
membership, a circumstance beyond the employer’s control. New Process Co., 290 NLRB at
707. In Daniel Construction Co., 257 NLRB 1276 (1981), enf’d., 732 F.2d 139 (1st Cir. 1984),
the Board found that an employer’s statement that an employee would be required to join the
union if the union won an election contained “no express threat that the employer by its own
action would impose dire consequences…on the employees,” and was therefore a
“misstatement of law” as opposed to a threat violating Section 8(a)(1). In other cases, however,
the Board has held that misstatements of the law regarding union security provisions and the
possible discharge of employees constitute unlawful threats. See Overnite Transportation Co.,
334 NLRB 1074, 1112 (2001) (statement that a union security provision could “possibly cost you
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your job” if employer was “forced to fire” employees “delinquent in…dues payments” unlawful, in
that union security clause would be unenforceable in the State where employees worked); SMI
of Westchester, Inc., 271 NLRB 1508, 1524 (1984) (manager’s statement that he would, upon
the union’s request, discharge employees who did not complete union membership applications
unlawful, in that union-security agreements may not compel membership, as opposed to dues
payments); see also United Stanford Employees, Local 680 (Leland Stanford Junior University),
232 NLRB 326 (1977), enf’d., 601 F.2d 980 (9th Cir. 1979), (union violated Section 8(b)(1)(A) by
implying to employees that if they did not maintain full membership they would lose their jobs).

The evidence here establishes that Giordano’s statements explicitly threatened
employees with discharge or the loss of their jobs, and did not construe the Union, or a
contractual union security provision, as intervening conditions which would remove the decision
to take such adverse action from Respondent’s control. On the contrary, Gonzalez, Perez, and
Lora were adamant when questioned on cross-examination that Giordano did not discuss a
union security provision, a closed as opposed to an open shop, or even a union contract, in the
context of his remarks29 (Tr. 136-137, 268-270, 387-390). While Gonzalez testified that
Giordano told them that Respondent would have to discharge the employees who did not join
the union, “even if they didn’t want to,” he provided no explanation of how Respondent would be
forced to do so (Tr. 61-62). Although Marciano contended that she interrupted Giordano when
he made these remarks and explained to the employees that such union security issues were
contingent upon contract language (Tr. 818-819), none of the other witnesses questioned about
this could recall her doing so. Some stated that Marciano spoke after Giordano finished
answering Collins’ question, but none could recall the specific substance of her remarks. As a
result, I find that the evidence overall establishes that Giordano violated Section 8(a)(1) by
unlawfully threatening employees with discharge during his comments in response to Collins’
question, as alleged in Paragraph 6(c) of the Amended Complaint.

The evidence also establishes that Giordano threatened employees with discharge by
informing employees that if they went on strike they would be discharged, in violation of Section
8(a)(1). It is well-settled that an employer may inform employees that they are subject to
permanent replacement in the event of an economic strike. See, e.g., Connecticut Humane
Society, 358 NLRB No. 31, at p. 34 (2012), citing Eagle Comtronics, Inc., 263 NLRB 515, 516
(1982); see also Laidlaw Corp., 171 NLRB 1366 (1969), enf’d. 414 F.2d 99 (7th Cir. 1969). In
addition, an employer need not fully explicate employees’ rights in the event of an economic
strike, so long as its statements are consistent with the law and unaccompanied by other threats
of retaliation for choosing union representation. River’s Bend Health and Rehabilitation
Services, 350 NLRB 184, 184-186 (2007) (statement that hiring replacements during economic
strike “puts each striker’s continued job status in jeopardy” permissibly consistent with Laidlaw
rights); Unifirst Corp., 335 NLRB 706 (2001). Where, by contrast, employer statements convey
to employees that in the event of an economic strike their employment will be terminated, or are
otherwise contrary to employees’ Laidlaw rights, they constitute unlawful threats of discharge.
Connecticut Humane Society, 358 NLRB No. 31, at p. 34 (statement that “some employees
could even find themselves without a job when the strike is over” impermissibly linked strike
participation with job loss); Gelita USA, Inc., 352 NLRB 406, 406-407, 408-410 (2008), 356
NLRB No. 70 (2011) (three member panel) (statement that economic strikers “would have no
job protection if replaced” unlawful). In assessing the import of a statement describing
employees’ Laidlaw rights in the event of an economic strike, the Board also considers whether

29 Bergman testified that she could not recall Giordano’s response to Collins’ question.
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such a statement is accompanied by other threats or conduct violating Section 8(a)(1). River’s
Bend Health & Rehabilitation Services, 350 NLRB at 185; Unifirst Corp., 335 NLRB at 707.

The evidence establishes that Giordano’s remarks to the employees were unlawful
pursuant to this standard. Perez, Ramirez, and Martinez all testified that Giordano told them
that employees who participated in a strike called by the Union would lose their jobs. Although
Giordano apparently also mentioned employees’ returning to work in seniority order, Martinez
testified that Giordano told the employees that strikers would be “discharged, because it was
considered walking out, and if they was to take anyone else, it would be starting with seniority”
(Tr. 544).30 Perez similarly testified that Giordano told the employees that if “you go out on a
strike…you will lose your job,” and that “in order for you to come back to work it will be done by
seniority” (Tr. 179). I find this testimony to be effectively unrebutted. Bergman testified that
although she could recall Giordano discussing his experiences as an employee at a hotel where
a strike had taken place, she could not remember any explanation of strike replacements (Tr.
676-677). In any event, the evidence establishes that Bergman did not attend all of the
meetings between Giordano and the employees. Marciano generally confined her testimony to
her own comments to employees addressing economic strikes and the employees’ Laidlaw
rights. As a result, I credit the employees’ description of Giordano’s statements, and find that
Giordano impermissibly conveyed the impression that the employees would be discharged if
they participated in an economic strike, in a manner inconsistent with the employees’ Laidlaw
rights.31 As a result, the evidence establishes that Giordano threatened employees with
discharge in violation of Section 8(a)(1) of the Act, as alleged in Paragraph 6(c) of the Amended
Complaint.
By contrast, I conclude that Marciano’s comments regarding the possibility of the
employees’ being replaced during an economic strike were consistent with the principles
articulated in Laidlaw, and as such did not violate Section 8(a)(1). I credit Marciano’s testimony
that she read her prepared speech regarding these issues verbatim. Some of the comments
contained in Marciano’s speech were echoed by Martinez during her cross-examination, such
as the statement that during an economic strike the company can continue to operate its
business, possibly using replacement employees, and that as a result there would be a list to
return to work as openings occurred. I generally found Martinez to be a candid and convincing
witness, and find her corroboration of Marciano’s prepared statement more probative in this
regard than Perez’s contention that Marciano told the employees that if they went on strike they
would lose their jobs. Marciano’s prepared remarks specifically discussed a preferential hiring
list for employees returning from a strike, and emphasized that employees who participate in an
economic strike “are NOT fired” (emphasis in original). 32 In addition, the evidence does not
indicate that Marciano’s statements regarding the employees’ Laidlaw rights were accompanied
by any other threats or unlawful conduct. As a result, the evidence overall does not substantiate
the Amended Complaint’s allegation that Marciano threatened employees with discharge, and I
will recommend that Paragraph 6(h) be dismissed.

30 Martinez was adamant regarding Giordano’s use of the word “discharged” (Tr. 544).
31 I also note that Giordano threatened employees with the loss of benefits in violation of Section
8(a)(1) during his meetings with employees. Any ambiguity in his statements regarding the employees’
status in the event of an economic strike is therefore appropriately resolved against Respondent. Unifirst
Corp., 335 NLRB at 707.
32 I note that Perez testified that Marciano told the employees that “in order for you guys to get
reinstated it’s going to take a while…and it’s going to be by seniority,” which is consonant with Marciano’s
remarks regarding the use of a preferential hiring list (Tr. 183).
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5. Alleged threats regarding the loss of business (Stillwell) (Complaint ¶ 6(e))
The Board evaluates predictions of job loss as a result of Union representation under the
standard articulated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Under Gissel
Packing Co., such statements are not permissible campaigning under Section 8(c) unless they
are “carefully phrased on the basis of objective fact to convey the employer’s belief as to
demonstrably probable consequences beyond the employer’s control.” UPS Supply Chain
Solutions, 357 NLRB No. 106, at p. 3 (2011), citing NLRB v. Gissel Packing Co., 395 U.S. at
618. As a result, a “lawful prediction” regarding the loss of jobs or business must be supported
by an “objective, factual basis,” such as contracts or communications with customers. See UPS
Supply Chain Solutions, 357 NLRB No. 106, at p. 3; Tradeware Incineration, 336 NLRB 902,
907-908 (2001).
Applying this standard, the evidence here establishes that Respondent violated Section
8(a)(1) when Stillwell threatened employees with the loss of business, and the attendant loss of
jobs, during the meetings prior to the election. Gonzalez, Perez, Lora and Ramirez all testified
that during the meetings they attended, Stillwell told them that if the Union represented the
employees, the company could not maintain the standard of customer service upon which it had
built its business and reputation. I credit their testimony that Stillwell told them that if the
company were prevented by the Union from providing the same level of service, customers
would go elsewhere, resulting in a negative impact on the business, and ultimately a lack of
work for the employees. I do not credit Stillwell’s assertion that he only spoke about union rules
and a “not my job sort of mentality” affecting service, without stating that this phenomenon
would detrimentally affect Respondent’s business, or the employees’ work. There was simply
no other reason for him for him to discuss the purported negative impact on service of union
representation without the logical conclusion that business would suffer as a result, and since
the bargaining unit servers are assigned work only when events are booked by customers, a
decline in business necessarily affects the amount of work available to them. In addition,
Stillwell prefaced his remarks regarding a possible decline in standards of service with the
contention that Respondent built its business and reputation upon precisely this attribute,
reinforcing the conclusion that business would suffer if Respondent’s level of service
deteriorated as a result of the Union. Consequently, I find based upon the testimony that
Stillwell predicted that because of the inferior standard of service that Union representation
would engender, Respondent would lose business, and the employees would lose work.
Furthermore, there is no evidence of an objective, let alone documentary, basis for
Stillwell’s prediction. Even if, as Gonzalez testified,33 Stillwell stated that work rules and
restrictions arising under a union contract would lower the standard of service Respondent was
able to provide, Stillwell provided no objective basis for his assumption that the Union would
make such demands or achieve such results in bargaining. See North Atlantic Medical Center,
329 NLRB 85, 93 (1999), enf’d., 237 F.3d 62 (1st Cir. 2001) (no basis for manager’s assumption
that the union would strike, jeopardizing employer’s business and employees’ jobs, if certified).
Nor did Stillwell provide any objective basis for his statements that customers would cease to
use Respondent’s services if the Union prevailed in the election. See UPS Supply Chain
Solutions, 357 NLRB No. 106, at p. 3 (supervisor’s predictions of job loss based on client
contracts that required employer to remain nonunion unsupported by objective evidence, where
sole contract allegedly containing such a provision was not offered into evidence, and no other

33 Perez and Lora testified that in the meetings they attended, Stillwell did not mention work rules or
other contractual obligations.
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relevant contract was identified); Tradeware Incineration, 336 NLRB at 907-908 (General
Manager unlawfully threatened that employer’s parent company might not view employer as
appropriate for long-term investment, and customers might not perceive employer as a secure
long-term business option, where assertions were unsupported by specific evidence of parent
company’s reticence and customer dissatisfaction). As a result, Respondent failed to provide
any objective evidence to support Stillwell’s contentions, and Stillwell’s comments in this regard
constituted an unlawful threat of the loss of business, as alleged in Paragraph 6(e) of the
Amended Complaint.
B. Alleged Disparate Application of Respondent’s “No Talk” Rule
It is well-settled that an employer may prohibit discussions regarding union matters
“during periods when the employees are supposed to be actively working,” if the employees are
also prohibited from discussing other subjects “not associated or connected with the employees’
work tasks.” Scripps Memorial Hospital Encinitas, 347 NLRB 52 (2006), quoting Jensen
Enterprises, 339 NLRB 877, 878 (2003); see also Sam’s Club, 349 NLRB 1007, 1009 (2007).
However, if employees are permitted to discuss other matters unrelated to work during work
time, an employer violates Section 8(a)(1) by prohibiting similar discussion of union-related
issues. Sam’s Club, 349 NLRB at 1009; Scripps Memorial Hospital Encinitas, 347 NLRB at 52.
Generally, in order to determine whether employer communications to employees violate
Section 8(a)(1), the Board applies an “objective standard,” evaluating “whether the remark tends
to interfere with the free exercise of employee rights,” without considering “the motivation behind
the remark or its actual effect.” Scripps Memorial Hospital Encinitas, 347 NLRB at 52, quoting
Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
The evidence here establishes that Respondent violated Section 8(a)(1) by prohibiting
employees from discussing the Union on work time, when they were permitted to and did in fact
discuss other non-work related matters. I credit the testimony of Gonzalez, Perez, Lora,
Ramirez, and Martinez that employees were permitted to talk to one another regarding non-
work issues, such as sports, entertainment, the news, and their personal affairs, on work time
when guests were not present. I further credit their testimony that managers such as Stillwell,
McSweeney, Macias and Martin heard these conversations and sometimes joined them, and
that the employees discussed non-work matters with managers individually as well. I credit
Gonzalez and Martinez’s testimony that prior to the filing of the petition, they had never been
told by a manager that employees should not converse during work time when no guests were
present. Although Perez was admonished for speaking with co-workers in February and March
2011, the evaluation and written warning chastising him refer to “excessive chatting,” and
“chatting” for “more than a reasonable amount of time” while “ignoring his assigned bussing
duties.” As a result, these documents imply that discussion of non-work matters among
employees was permitted, so long as it did not interfere with their actual work performance.34
This is consistent with McSweeney’s testimony that unless guests were present, he would only
consider directing employees speaking in groups to disperse if they were “just standing there
not getting any work done.” The evidence therefore establishes that Respondent had a general
practice of permitting employees to discuss matters unrelated to work when guests were not
present, and when such conversations did not interfere with their work. See Austal USA, LLC,
356 NLRB No. 65 at p. 1, 39 (2010) (prohibition of discussion regarding union unlawful, where

34 In addition, it is not clear from the written warning whether guests were present while Perez was
allegedly chatting excessively with co-workers. Perez claimed that there were no guests present, and
refused to sign the warning on that basis.
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“employees are only disciplined if the discussion of the nonwork-related topics interferes with
their work performance”); ITT Industries, 331 NLRB 4 (2000), enf’d. in relevant part, 251 F.3d
995 (D.C. Cir. 2001) (employer permitted discussions of issues unrelated to work “as long as it
did not interfere with production”).
The evidence further establishes that after the petition was filed, McSweeney prohibited
employees from speaking with one another at times when no guests were present. I credit
Gonzalez, Perez, and Lora’s testimony that soon after the petition was filed, as they were
discussing a vacation trip while finishing their set-up assignments, McSweeney told them to
“take your meetings outside.” I similarly credit the testimony of Gonzalez, Perez, Ramirez and
Martinez that two weeks prior to the election, while they were setting up a dessert buffet in a
room devoid of guests, McSweeney told them, “break up the group…We don’t want people
talking in groups,” and told the servers to stop speaking to one another. McSweeney testified
that he could not recall either of these incidents, so the testimony of General Counsel’s
witnesses is effectively unrebutted. Consequently, I credit the testimony of Gonzalez and
Perez that on both occasions McSweeney ignored other groups of servers in the area who were
also chatting.
In addition, the record establishes that Respondent’s managers were specifically
interested in prohibiting discussions relating to the Union. For example, the evidence indicates
that McSweeney singled out Gonzalez and the employees speaking with her for admonishment,
despite the other groups of servers engaged in similar conduct at the time. McSweeney’s
injunction to “take your meetings outside” clearly referred to the employees’ organizing
activities. I also credit Perez’s testimony that Macias, during the weeks preceding the election,
repeatedly accused him of “having your little secret meeting,” another reference to the
employees’ union activities.35 In fact, McSweeney testified that he was specifically concerned
with the employees’ discussions of the Union and election during the pre-election period.
Although McSweeney testified that his heightened concern was based on a belief that
discussions of the Union would have a detrimental impact on the servers’ work performance, he
did not provide any basis for such an assumption. In fact, Stillwell thanked the employees
during his meetings with them for maintaining a consistently high level of service during the
weeks preceding the election. Indeed, it was apparent from Gonzalez’s testimony at the
hearing that she was committed to Respondent’s providing an elevated level of service to its
customers, and was proud of the servers’ work in that regard. As a result, the evidence does
not support a contention that McSweeney’s concern with an impact on Respondent’s services
was legitimate.
For all of the foregoing reasons, the evidence establishes that Respondent enforced its
“no talk” rule in a disparate manner by prohibiting employees from speaking with one another
during work time after the filing of the petition for a representation election, when it had routinely
permitted discussion of other non-work related topics. Respondent’s disparate enforcement of
the “no talk” rule therefore violated Section 8(a)(1) of the Act, as alleged in Paragraph 7 of the
Amended Complaint.
C. Respondent Discharged Hernan Perez in Retaliation for his Union and Protected
Concerted Activities, in Violation of Sections 8(a)(1) and (3) of the Act
1. The Parties’ Contentions and the Applicable Law

35 Macias did not testify at the hearing.
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General Counsel argues that Perez’s October 25 Facebook posting was protected by
the Act, in that it constituted both protected concerted activity and activity on behalf of the EGU.
As discussed above, Perez’s Facebook comments consisted of the following:
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!!!
Fuck his mother and his entire fucking family!!!!
What a LOSER!!!!
Vote YES for the UNION!!!!!!!
General Counsel argues that the posting constituted protected concerted activity, in that
it was one of an ongoing series of concerted actions on the part of the servers regarding what
they perceived as rude, demeaning and derogatory treatment by Respondent’s managers,
including McSweeney. General Counsel also contends that the posting constituted activity on
behalf of the EGU, in that it explicitly stated, “Vote Yes for the Union.” General Counsel further
argues that Respondent was aware that the posting constituted protected concerted activity, in
that Respondent’s managers were generally aware of the servers’ complaints, which had been
related to Bergman, both earlier in the year and in the immediate context of the events which
occurred on October 25. Applying the analysis articulated by the Board in Atlantic Steel Co.,
245 NLRB 814, 816-817 (1979), General Counsel argues that given the location and subject
matter of the Facebook posting, the nature of Perez’s “outburst,” and the extent to which the
outburst was provoked by Respondent’s conduct, Perez’s Facebook posting remained protected
activity. General Counsel further argues that a totality of the circumstances analysis also
demonstrates that Perez’s Facebook posting remained protected. Fresnius USA Mfg., 358
NLRB No. 138, at p. 7-8 (2012). General Counsel contends that because there is no dispute
that Perez’s Facebook posting was the basis for his discharge, his discharge violated Sections
8(a)(1) and (3) of the Act.
Respondent argues that it lawfully discharged Perez based upon his Facebook posting,
because the posting was unprotected “online griping” that did not address a term and condition
of employment. Respondent further argues that under the Atlantic Steel Co. analysis, Perez’s
Facebook posting lost the protection of the Act. Respondent argues that as a result it
legitimately discharged Perez for his Facebook posting, and did not violate Sections 8(a)(1) and
(3).
2. Perez’s Facebook posting constituted protected concerted activity, and protected
activity on behalf of the EGU
The evidence establishes that Perez was engaged in both Union and protected
concerted activity within the meaning of Section 7 of the Act when he posted his remarks
regarding McSweeney on October 25. Section 7 of the Act provides that “employees shall have
the right to self organization, to form, join or assist labor organizations, to bargain collectively
through representatives of their own choosing and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection.” Concerted activity directed
toward supervisory conduct, such as “rude, belligerent, and overbearing behavior” which directly
affects the employees’ work, constitutes protected activity under the Act. Arrow Electric Co.,
323 NLRB 968, 970 (1997), enf’d., 155 F.3d 762 (6th Cir. 1998).
The evidence here establishes that Perez’s Facebook comments were part of a
sequence of events involving the employees’ attempts to protest and ameliorate what they saw
as rude and demeaning treatment on the part of Respondent’s managers, including
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McSweeney. Indeed, it is not unreasonable to conclude from the record here that what the
employees considered to be hostile and degrading treatment by managers was one of the
principal concerns engendering their organizing activities. For example, the petition regarding
employee complaints Gonzalez presented to Stillwell in March 2011 includes a number of
issues involving managers’ treatment of servers, such as, “Managers and captain[s] don’t treat
the staff with respect,” “Managers and captains take their job frustration [out] with the staff,” and
“Managers and captains make the staff feel that the server position is lower” (G.C. Ex. 3).
Subsequently, Gonzalez conveyed a complaint that Martin had referred to the service staff as
“animals” to Stillwell and Giordano, and told them that the servers had an ongoing problem with
the lack of respect shown to them by managers. Lora also testified that he complained to
Stillwell and Giordano after McSweeney referred to him as “stupid,” a complaint also made by
employee Lysette Roman based upon a separate incident. In the weeks prior to the election,
McSweeney had twice directed groups of employees which included both Gonzalez and Perez
to disperse, once using language which clearly referred to their Union activities, in a manner
which the employees involved considered to be harsh and inappropriate.
Evaluated in this context, Perez’s Facebook posting on October 25 constituted part of an
ongoing sequence of events related to the servers’ dissatisfaction with the manner in which they
were treated by Respondent’s managers. Gonzalez, Perez, and Lora all testified that on
October 25 McSweeney directed them to “spread out” twice, in a harsh and progressively louder
tone of voice.36 McSweeney’s conduct was sufficiently similar to previous incidents the servers
considered objectionable that Gonzalez took a moment to tell him, in words similar to the
inoffensive portion of Perez’s Facebook post, that he “needed to learn how to talk to the staff.”37
There is no real dispute that McSweeney’s statements to Gonzalez, Perez, and Lora
precipitated Perez’s Facebook posting. In addition, because several other servers were
“friends” with Perez on Facebook, Perez could anticipate that other employees, also concerned
regarding demeaning treatment by managers, would see it.38 It is well-settled that concerted
activity “encompasses those circumstances where individual employees seek to initiate or to
induce or to prepare for group action.” Hispanics United of Buffalo, Inc., 359 NLRB No. 37 at p.
2 (2011), quoting Meyers Industries, 281 NLRB 882, 887 (1986), enf’d sub nom. Prill v NLRB,
835 F.2d 1481 (D.C. Cir. 1987); see also KNTV, Inc., 319 NLRB 447, 450 (1995) (“Concerted
activity encompasses activity which begins with only a speaker and listener, if that activity
appears calculated to induce, prepare for, or otherwise relate to some kind of group action”).
The specific medium in which the discussion takes place is irrelevant to its concerted nature.
See Hispanics United of Buffalo, Inc., 359 NLRB No. 37, at p. 1-3 (Facebook discussion of
employee’s complaints regarding work performance of fellow employees concerted activity);
Timekeeping Systems, Inc., 323 NLRB 244, 247 (1995) (e-mail regarding vacation policy from
employees to fellow employees and management concerted activity). As a result, I find that
Perez’s Facebook posting was part of an ongoing sequence of events involving servers’
complaints regarding the manner in which they were treated by Respondent’s managers, and
was therefore protected concerted activity. See, e.g., Tampa Tribune, 351 NLRB 1324, 1325
(2007), enf. denied, 560 F.3d 181 (4th Cir. 2009) (single conversation concerted when “part of
an ongoing collective dialogue” between employer and employees and a “logical outgrowth” of

36 I credit Gonzalez and Perez’s testimony that McSweeney’s volume and tone was such that it
attracted the attention of a guest at a nearby table.
37 Perez posted that McSweeney did not “know how to talk to people.”
38 Perez clearly intended other servers to see the posting, as he exhorted them to “Vote YES for
the UNION.”
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prior concerted activity); Circle K Corp., 305 NLRB 932, 933-934 (1991), enf’d, 989 F.2d 498 (6th
Cir. 1993) (“invitation to group action” concerted activity regardless of its outcome).
For all of the foregoing reasons, I find that Perez’s Facebook posting constituted
protected concerted activity within the meaning of Section 7 of the Act. Because the posting
explicitly encouraged viewers to “Vote YES for the UNION,” I find that it also constituted activity
on behalf of the EGU.
3. Perez’s Facebook posting did not lose its protected character under the Atlantic
Steel analysis
I conclude based upon the evidence overall that Perez’s Facebook comments were not
sufficiently egregious as to lose the protection of the Act under Atlantic Steel and its progeny.
The Atlantic Steel analysis requires the consideration of four factors: (i) the place of the
discussion; (ii) the discussion’s subject matter; (iii) the nature of the outburst on the part of the
employee; and (iv) whether the outburst was provoked by the employer’s unfair labor practices.
See, e.g., Plaza Auto Center, Inc., 355 NLRB No. 85 at p. 2 (2010), remanded, 664 F.3d 286
(9th Cir. 2011), citing Atlantic Steel, 245 NLRB at 816. These four criteria are intended to permit
“some latitude for impulsive conduct by employees” during protected concerted activity, while
acknowledging the employer’s “legitimate need to maintain order.” Plaza Auto Center, Inc., 355
NLRB No. 85 at p. 2. As the Board has stated, the protections of Section 7 must “take into
account the realities of industrial life and the fact that disputes over wages, bonuses, and
working conditions are among the disputes most likely to engender ill feelings and strong
responses.” Consumers Power Company, 282 NLRB 131, 132 (1986). Therefore, statements
during otherwise protected activity lose the Act’s protection only where they are “so violent or of
such serious character as to render the employee unfit for further service.” St. Margaret Mercy
Healthcare Centers, 350 NLRB 203, 204-205 (2007), enf’d, 519 F.3d 373 (7th Cir. 2008), quoting
Dreis & Krump Mfg. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976).
a. The location of the discussion
The first of the Atlantic Steel factors – the place of the discussion – militates in favor of a
finding that Perez’s comments did not lose the protection of the Act. The comments were
contained in a Facebook posting, and not made during a face-to-face discussion at the
workplace, so there is no possibility that the discussion would have immediately disrupted
Respondent’s work environment. Fresnius USA Mfg., 358 NLRB No. 138, at p. 5 (comments
distributed via newsletter in the employee breakroom “unlikely to disrupt production”); Datwyler
Rubber and Plastics, 351 NLRB 669, 670 (2007) (outburst during a meeting in the employee
breakroom not disruptive to work processes). Indeed, the evidence establishes that Perez
posted his comments on the apron outside of the facility while on a break, with no other
employees participating at the time. Nor was there was any direct confrontational challenge to
any particular manager’s authority in the workplace. Furthermore, there is no evidence that
Perez’s comments interfered with or disrupted Respondent’s relationships with its customers, or
that customers even saw them.39

39 In other cases, the Board has held that without evidence of disruption to customers, even their
presence during brief episodes of impulsive behavior in the midst of otherwise protected activity is
insufficient to remove the activity from the protection of Section 7. Crowne Plaza LaGuardia, 357 NLRB
No. 95, at p. 6 (2011); Goya Foods of Florida, 347 NLRB 1118, 1134 (2006), enfd. 525 F.3d 1117 (11th
Cir. 2008).
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Respondent argues that the first component of the Atlantic Steel analysis militates
against protection, in that Perez intended to undermine McSweeney’s authority by “holding him
out to ridicule” in front of other employees on a public Facebook page. However, it is clear from
the cases discussed above that in evaluating this factor, the Board is concerned with the
immediate, contemporaneous disruption of workplace discipline, managerial authority and
customer service caused by the employee outburst in question. See Fresenius USA Mfg., 358
NLRB No. 138, at p. 5; Datwyler Rubber and Plastics, 351 NLRB at 670; Crowne Plaza
LaGuardia, 357 NLRB No. 95, at p. 6. The evidence here does not establish that Perez’s
Facebook comments caused any such immediate disruption to Respondent’s workplace. In
addition, while the evidence establishes that, as Respondent contends, access to Perez’s
Facebook page was not solely limited to Perez’s Facebook “friends,” the fact remains that the
Facebook page where Perez posted his comments was his own, and not Respondent’s. In
addition, as discussed above there is no evidence in the record that Perez’s comments
disrupted Respondent’s business activities or customer relationships.
For all of the foregoing reasons, the first component of the Atlantic Steel analysis, the
location of the discussion, militates in favor of a finding that Perez’s Facebook comments did not
lose their protected character.
b. The subject matter of the discussion
The second of the Atlantic Steel factors – the subject matter of the discussion – strongly
supports a conclusion that Perez’s Facebook comments remained protected. As discussed in
Section III(C)(2), above, the evidence establishes a significant background of servers’ activities
challenging rude and demeaning treatment by Respondent’s managers. Gonzalez and Lora, in
addition to Perez, were offended by McSweeney’s conduct on October 25. They believed that
McSweeney singled out Gonzalez because of her Union activities, as he had in the past, and
were also upset with the manner in which McSweeney spoke to them. Perez’s Facebook
comments were a direct response to McSweeney’s statements to the three employees earlier
that evening, and his assertion that McSweeney “don’t know how to talk to people,” echoed
Gonzalez’s statement to McSweeney that he “needed to learn how to talk to the staff.” As a
result, I find that Perez’s Facebook comments protested, and communicated to other
employees, what he, Gonzalez, and Lora considered to be degrading and inappropriate
treatment on McSweeney’s part, an instance of the managerial conduct which Respondent’s
employees had been objecting to for some time. As a result, as discussed in Section III(C)(2), I
conclude that Perez’s Facebook comments constituted protected concerted activity. Because
Perez’s Facebook comments also included, “Vote YES for the UNION,” they also constitute
activity on the Union’s behalf. The subject matter of Perez’s discussion therefore militates
strongly in favor of a finding that his comments remained protected.
c. The nature of the outburst
The third of the Atlantic Steel factors involves the nature of the outburst itself. While
Perez’s comments referring to McSweeney as a “nasty motherfucker” and declaring, “Fuck his
mother and his whole fucking family,” include obscenities and are offensive, given the evidence
overall I do not find that this component of the analysis removes Perez’s comments from the
Act’s protection.
First of all, it is well-settled that the use of the word “fuck” and its variants, including the
term “motherfucker,” is insufficient to remove otherwise protected activity from the purview of
Section 7. See Plaza Auto Center, 355 NLRB No. 85 at 2-5 (employee’s activity remained
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protected, despite reference to owner as a “fucking motherfucker,” “fucking crook,” and
“asshole,” as “a single verbal outburst of insulting profanity does not exceed the bounds of the
Act’s protection”); Tampa Tribune, 351 NLRB at 1324-1325 (employee called company Vice
President a “stupid fucking moron”); see also Alcoa, Inc., 352 NLRB 1222, 1225-1226 (2008)
(employee referred to supervisor as an “egotistical fucker”); Burle Industries, 300 NLRB 498
(1990), enf’d, 932 F.2d 958 (3d Cir. 1991) (employee called supervisor a “fucking asshole”). In
addition, Perez’s Facebook comments were not made directly to McSweeney, and did not
involve any insubordination, or physically threatening or intimidating conduct.40 See Plaza Auto
Center, 355 NLRB No. 85 at p. 3-4 (nature of outburst “not so opprobrious” as to deprive
employee of statutory protection where no evidence of physical harm or threatening conduct);
Tampa Tribune, 351 NLRB at 1326 (employee’s outburst remained protected where not directed
at manager and unaccompanied by physical conduct, threats, or confrontational behavior).
In addition, the evidence establishes that profanity was regularly used by Respondent’s
employees and managers when guests were out of earshot, such as during the set-up period
before the guests’ arrival, in the kitchen, and in the locker room, without disciplinary
consequences. See Fresenius USA Mfg., 358 NLRB No. 138, at p. 6 (considering routine
workplace use of profanity and crude speech as a context for evaluating the nature of an
employees’ allegedly offensive outburst during otherwise protected activity). I credit the
testimony of Gonzalez, Perez, Lora, Ramirez, and Martinez, that Executive Chef Phil DeMaiolo
cursed at employees on a daily basis, screaming phrases such as “What the fuck are you
doing?,” “Motherfucker,” “Are you guys fucking stupid?” “Stop fucking talking like that,” and “You
should ask what the fuck you’re picking up.” Bergman testified that DeMaiolo supervises forty
employees, is a department head, and sits on Respondent’s steering committee.41 I further
credit the testimony of Perez, Ramirez, and Martinez that stewarding supervisor Felix Acosta,
who directs the work of the dishwashers, also screamed profanities at the servers, such as
“What the fuck is this?,” “Why are you fucking guys slow?,” “What the fuck are you guys
doing?” and “Asshole.” I credit Perez and Martinez’s testimony that McSweeney had used
profanity, telling an employee, “Stop fucking around or I’m going to send you home,” and
occasionally using “fuck” and “shit,” and I credit as well their testimony that Macias and Martin
used similar expletives on a more frequent basis. I also credit Ramirez’s testimony that
Giordano and chef Francisco had a profanity-charged confrontation in the locker room in early
2012, wherein Giordano called Francisco a “fucking little Mexican,” and a “motherfucker” who
should “eat shit,” which Francisco countered with, “Fuck you, motherfucker, what are you going
to do?” The evidence establishes that despite the daily use of such profanity, Respondent has
only issued discipline to employees involving the use of inappropriate language on five
occasions since 2005, and three of these incidents also involved the refusal to comply with a
supervisor’s directive.42 This evidence indicates that the use of profanity not dissimilar from

40 In DaimlerChrysler Corp., cited by Respondent, the employee approached his supervisor in an
“intimidating” manner before loudly telling the supervisor “fuck this shit,” and the employer had previously
disciplined the employee’s co-worker for using profanity toward him. 344 NLRB 1324, 1328-1330 (2005).
41 While Bergman testified that she was unaware of DeMaiolo’s propensity for profane language,
the evidence establishes that banquet managers, such as McSweeney, were present during DeMaiolo’s
obscene remarks to the servers on any number of occasions and knew that DeMaiolo spoke to
employees in this manner.
42 Bergman testified that in May 2007, employee Gregg Robinson was issued a counseling for
telling a temporary worker that someone might want to “put a foot up her ass.” In addition, the evidence
establishes that in June 2005, employee Joey Gonzalez received a counseling for “berating” another
employee in the kitchen, and refusing to leave the area when directed to do so by his supervisor, and that
Continued
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Perez’s Facebook remarks was a daily occurrence in Respondent’s workplace, and did not
engender any disciplinary response.
Respondent argues that Perez’s statement “Fuck his mother and his entire fucking
family” is distinguishable from a passing epithet uttered in frustration. Respondent contends
that the statement is, as Bergman testified, “extreme” in that it is a more “personal” insult
involving McSweeney’s family members.43 However, the common meaning of these statements
is generally understood as an expression of hostility toward the person being insulted, and is not
considered to be a literal attack on or threat against that person’s family members. Given the
remainder of the Facebook post providing a context for the statement – the characterization of
McSweeney as a “nasty mother fucker” and a “loser” who “don’t know how to talk to people,”
and the exhortation “Vote YES for the UNION” – the statement is more plausibly interpreted as
an epithet directed to McSweeney himself, as opposed to a slur against his family. The Board
has previously considered the colloquial meaning and context for statements in order to
determine their nature and import. See Fresenius USA Mfg., 358 NLRB No. 138 at 6
(“Warehouse workers, R.I.P.” not threatening given lack of physical or threatening conduct
associated with statement); Kiewit Power, 355 NLRB No. 150, at p. 3 (2010) (employee’s claim
that “it was going to get ugly,” and that supervisor “better bring [his] boxing gloves” ambiguous
absent intimidating conduct); Leasco, Inc., 289 NLRB 549, n. 1 (1988) (employee assertion that
“if you’re taking my truck, I’m kicking your ass right now” a non-threatening “colloquialism”). In
addition, Respondent’s contention that employees and managers did not use obscenities in a
personal manner is undermined by the evidence described above, such as DeMaiolo’s asking
servers “Are you guys fucking stupid?,” Acosta’s statement “Why are you fucking guys slow?,”
and Giordano’s referring to Francisco as a “fucking little Mexican.” Overall, while Perez’s
Facebook comment regarding McSweeney may have differed from these statements on the part
of Respondent’s managers in intensity, it was not a qualitative departure from what was
tolerated by Respondent in the workplace on a daily basis.
For all of the foregoing reasons, the third component of the Atlantic Steel analysis
militates in favor of a finding that Perez’s activity remained protected.
_________________________
in December 2008, employee Ernie Spanakos was issued a counseling for telling another employee that
she was “acting stupid” and “retarded.” In November 2007, employee Juliana Lockin was issued a
counseling for refusing to leave the floor after being directed to do so by her manager, and in May 2008,
Lockin was suspended for three days and issued a final warning for eating during an event without prior
supervisory approval, and refusing to remain at the workplace to discuss the issue with her supervisor
after the event ended.
43 Bergman also asserted during her testimony that she considered Perez’s Facebook posting
potentially “defamatory.” Respondent makes no legal argument in support of this claim, and as such I will
not evaluate Perez’s Facebook comments under caselaw involving defamation. NLRB v. Electrical
Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), and Linn v. United Plant Guard Workers,
383 U.S. 53 (1966). Bergman also testified that Perez’s Facebook posting could constitute “harassment,”
and Respondent apparently contended at the hearing regarding Perez’s entitlement to unemployment
benefits that Perez was discharged for violating its harassment policy. However, I find that Respondent’s
policy prohibiting harassment is not pertinent to Perez’s Facebook comments. The policy prohibits
harassment based upon protected classifications established in federal, state, and local laws prohibiting
employment discrimination. The policy addresses “unwelcome slurs, threats, derogatory comments or
gestures, joking, teasing, or other similar verbal, written or physical conduct” to the extent that it is
“directed towards an individual because of one of these protected classifications.” Respondent does not
argue that any such invidious motivation is at issue here.
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d. Whether the outburst was provoked
Finally, I find that the fourth component of the Atlantic Steel analysis, whether the
employee’s outburst was provoked by some conduct of Respondent’s, weighs slightly against a
finding that Perez’s activity remained protected. The Board has held in the context of the
Atlantic Steel analysis that employer conduct provoking an intemperate remark need not be
explicitly alleged as an unfair labor practice, so long as the conduct in question evinces an intent
to interfere with protected rights. Network Dynamics Cabling, Inc., 351 NLRB 1423, 1427-1429
(2007) (employee outburst provoked by manager’s admonishment that he cease engaging in
union activity); Overnite Transportation, 343 NLRB 1431, 1437-1438 (2004) (supervisor
provoked union steward’s intemperate remarks by refusing to discuss employee discharges,
where steward was lawfully seeking information relevant to possible grievances).
The evidence here establishes that Perez made his Facebook comments directly in
response to McSweeney’s interaction with him, Gonzalez, and Lora earlier that evening. I credit
Perez’s testimony, corroborated by Gonzalez, that he was extremely upset by the encounter
with McSweeney, took a break to calm himself and, during this break, posted his comments on
Facebook. I also credit Gonzalez, Perez, and Lora’s testimony that McSweeney approached
them forcefully and spoke to them in a harsh tone of voice. I further credit their testimony that
they associated McSweeney’s conduct with previous incidents of disrespectful and demeaning
treatment, an ongoing issue between the servers and management. Indeed, the servers were
sufficiently upset by McSweeney’s conduct that Gonzalez confronted him about it later, telling
him that he needed to learn how to speak to the staff. Finally, as discussed above, during the
month prior to this incident, McSweeney unlawfully applied the “no-talk” rule on two occasions to
Gonzalez and Perez, at one point telling them “take your meetings outside,” an obvious
reference to the organizing on behalf of EGU.
Ultimately, however, the evidence is insufficient to establish that McSweeney’s conduct
during the incident which precipitated Perez’s Facebook comments involved an intent to
interfere with protected rights in the manner at issue in previous Board decisions. Because
guests were present at the time that McSweeney directed Gonzalez, Perez, Lora and the other
servers to “spread out,” his conduct did not constitute a disparate enforcement of Respondent’s
“no talk” rule, and is not alleged as such.44 By contrast, as discussed above, in Network
Dynamics Cabling, Inc., the intemperate remarks at issue were provoked by a supervisor’s
demand that the employee cease engaging in union activity. 351 NLRB at 1427-1429.
Similarly, in Overnite Transportation, the Board found that the supervisor provoked the outburst
in question by refusing to provide the employee steward with information to which he was legally
entitled. 343 NLRB at 1437-1438. Furthermore, the situations addressed by the Board in
Starbucks Coffee Co. and Felix Industries, cited by the General Counsel, are not analogous to
the circumstances at issue here. Starbucks Coffee Co., 354 NLRB No. 99 (2009), 355 NLRB
No. 135 (2010) (three member panel); Felix Industries, 331 NLRB 144 (2000), remanded, 251
F.3d 1051 (D.C. Cir. 2001), opinion after remand, 339 NLRB 195 (2003). In Starbucks Coffee
Co., the outburst was provoked by supervisory conduct had been alleged as an unfair labor
practice in a complaint recently issued by the NLRB Regional Office, which later settled prior to
a hearing. 354 NLRB No. 99, at p. 33. In Felix Industries, the Board noted that the provocative

44 While Gonzalez stated that she had never been told to “spread out” or stop speaking to other
employees, Martinez testified that McSweeney had instructed her to do so when guests were present
during an event, so that McSweeney’s conduct in this regard was not unprecedented.
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conduct “likely would have been found to be an unfair labor practice had it been alleged.” 331
NLRB at 145. Here, however, the evidence establishes that McSweeney’s conduct which
precipitated Perez’s posting, while perhaps interpersonally rude and therefore relevant to the
employees’ ongoing protected concerted and Union activity, was never construed as unlawful,
or as an interference with the employees’ Section 7 rights. As a result, the evidence establishes
that Perez’s comments were not provoked within the meaning of the Atlantic Steel analysis, and
this factor weighs slightly against Perez’s activity retaining its protected character. See Tampa
Tribune, 351 NLRB at 1326 (fourth Atlantic Steel factor weighs “slightly against” continued
protection where outburst was provoked by “lawful communications”).
Overall, the evidence establishes that the first, second, and third components of the
Atlantic Steel analysis weigh in favor of a conclusion that Perez’s Facebook posting retained its
protected character, the second factor militating strongly in favor of a finding that Perez’s activity
remained protected. I find that the fourth component of the analysis weighs slightly against
continued protection. As a result, overall the Atlantic Steel factors engender the conclusion that
Perez’s Facebook posting did not lose the protection of the Act. Therefore, by discharging
Perez because of his Facebook posting, Respondent violated Sections 8(a)(1) and (3) of the
Act.
4. Perez’s Facebook posting retained its protected nature under a totality of the
circumstances analysis
Finally, the evidence establishes that Perez’s activity did not lose its protected character
under the totality of the circumstances analysis, incorporating but not specifically addressing the
Atlantic Steel factors, which the Board has occasionally used to evaluate statements made by
one employee to another. See, e.g., Fresenius USA Mfg., 358 NLRB No. 138, at p. 7-8; Honda
of America Mfg, Inc., 334 NLRB 746, 747-749 (2001). The totality of the circumstances
approach includes, in addition to the elements of the Atlantic Steel analysis, considerations such
as: (i) whether the employer maintained a specific rule prohibiting the language used by the
employee; (ii) whether the employer generally considered language such as that used by the
employee to be offensive; (iii) whether the employee’s statement was impulsive or deliberate;
(iv) whether the discipline imposed upon the employee was typical of that imposed for similar
violations, or disproportionate to the employee’s offense; (v) whether the discipline was clearly
directed at offensive language as opposed to protected activity; (vi) whether the record contains
any record of anti-union hostility; and (vii) whether the employee had previously engaged in
similar protected conduct without objection. Honda of America Mfg., Inc., 334 NLRB at 748.
The evidence establishes that these additional considerations ultimately support the
conclusion that Perez’s activity did not lose its protected character. As discussed in Section
III(C)(3)(c), above, the “Other Forms of Harassment” policy maintained by Respondent does not
encompass vulgar or offensive language in general. The policy only addresses such
statements when they are “directed toward an individual because of one of [the] protected
classifications” the policy covers, such as “age, race, religion, color, national origin, citizenship,
disability, marital status,” and the like. As discussed in further detail in Section III(C)(3)(c)
above, the evidence adduced regarding the use of profanity by DeMaiolo, Giordano,
McSweeney, and other managers establishes that Respondent tolerated such vulgarity, even
when incorporated into personal insults. The evidence also establishes that while Perez did not
have a face-to-face confrontation with McSweeney, his Facebook comments were an impulsive
reaction to the encounter between McSweeney and himself, Gonzalez and Lora earlier that
evening, which had upset them all. They were certainly not “premeditated” in the manner of
comments published in a written newsletter and distributed weeks after the competing
newsletter to which they responded. See Honda of America Mfg., Inc., 334 NLRB at 746-747.
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Furthermore, as discussed in Section III(C)(3)(c) above, the evidence establishes that no
employee had ever been discharged for the use of obscene or vulgar language in the past, and
that at the most employees had been issued a written counseling. The evidence establishes
that despite the daily use of vulgar language, and the word “fuck” in particular, since 2005
Respondent has disciplined only five employees for incidents involving the use of inappropriate
language, three of which also involved the employee’s refusal to comply with a managerial
directive. Compare Fresenius USA Mfg., 358 NLRB No. 138, at p. 7 (employer “had previously
dealt with vulgar employee conduct – unconnected to any protected activity – by issuing only
minor discipline,” as opposed to discharge); with Honda of America Mfg., 334 NLRB at 748
(employee received a penalty “typical of the discipline the Respondent imposed for similar
violations”). In addition, the record here establishes that Respondent committed other unfair
labor practices, including threats of discharge and the loss of business and benefits, and the
disparate application of its “no-talk” rule, at a time proximate to Perez’s discharge. Honda of
America Mfg., 334 NLRB at 748 (discipline not retaliatory where record contained “no indication
that Respondent is an antiunion employer,” or that employer “evidenced any union hostility
during counseling sessions” with employee). Indeed, the evidence regarding the disparate
application of the “no-talk” rule to groups of employees including Gonzalez and Perez indicates
that Respondent previously attempted to prevent him from discussing the Union. Id.
Finally, to reiterate the evidence discussed in the Atlantic Steel analysis, above, the
record establishes that Perez’s Facebook comments were made in a non-work setting, and that
employees who viewed them did so on their own time, outside of the workplace. There was no
direct, open confrontation with McSweeney in the workplace that would have undermined
employee discipline or supervisory authority. There was no physically intimidating or
threatening conduct involved, and no evidence of disruption to Respondent’s operations or to its
relationships with its customers. Although the Facebook comments themselves were vulgar
and contained obscenities, they involved an issue – demeaning and disrespectful treatment by
management – of critical concern to the employees during their protected concerted activities.
Perez’s comments also referred to the upcoming union election, and did not constitute a threat.
For all of the foregoing reasons, the evidence overall establishes that Perez’s Facebook
comments did not lose the Act’s protection under a totality of the circumstances analysis. As a
result, Respondent’s discharge of Perez based upon his Facebook posting violated Sections
8(a)(1) and (3) of the Act.

Conclusions of Law
1. The Respondent, Pier Sixty, LLC, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Evelyn Gonzalez Union is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employees with the loss of current benefits if the Union prevailed in a
representation election, Respondent violated Section 8(a)(1) of the Act.
4. By informing employees that “bargaining will start from scratch” in an unlawful
manner, Respondent violated Section 8(a)(1) of the Act.
5. By threatening employees with discharge if the Union prevailed in a representation
election, Respondent violated Section 8(a)(1) of the Act.
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6. By threatening employees with the loss of business if the Union prevailed in a
representation election, Respondent violated Section 8(a)(1) of the Act.
7. By applying its “no talk” rule in a disparate manner to prohibit employee discussions
involving the Union during work time, Respondent violated Section 8(a)(1) of the Act.
8. By discharging Hernan Perez in retaliation for his Union and protected concerted
activities, Respondent violated Sections 8(a)(1) and (3) of the Act.
9. Respondent has not violated the Act in any other manner.
10. The above-described unfair labor practices affect commerce within the meaning of
Sections 2(2), (6), and (7) of the Act.
The Remedy
Having found that Respondent has violated Sections 8(a)(1) and (3) of the Act, I shall
recommend that it cease and desist therefrom and take certain affirmative action necessary to
effectuate the Act’s purposes.
Having found that Respondent violated the Act by discharging Hernan Perez,
Respondent shall be ordered to reinstate Perez to his former or substantially equivalent
position, dismissing, if necessary, any employees hired subsequently, without prejudice to
Perez’s seniority or other rights and privileges Perez previously enjoyed. Respondent shall
further be ordered to make Perez whole for any loss of earnings he may have suffered as a
result of its unlawful conduct, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), with
interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on
other grounds, 647 F.3d 1137 (D.C. Cir. 2011). Respondent shall file a report with the Social
Security Administration allocating backpay to the appropriate calendar quarters, and shall
compensate Perez for the adverse tax consequences, if any, of receiving one or more lump-
sum backpay award covering periods longer than one year. Latino Express, Inc., 359 NLRB
No. 44 (2012). Finally, Respondent shall be ordered to post a notice, in English and Spanish,
informing its employees of its obligations herein.
Upon the foregoing findings of fact and conclusions of law, and upon the entire record, I
issue the following recommended45
ORDER
Respondent Pier Sixty, LLC, New York, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from

45 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(a) Discharging or otherwise discriminating against employees because they engage in
protected concerted activities or activities on behalf of the Union.
(b) Threatening employees with the loss of current benefits in retaliation for their Union
support and activities.
(c) Informing employees that “bargaining will start from scratch” in an unlawful manner.
(d) Threatening employees with discharge in retaliation for their Union support and
activities.
(e) Threatening employees with the loss of business in retaliation for their Union support
and activities.
(f) Applying its “no talk” rule in a disparate manner to prohibit employee discussions
regarding the Union on work time.
(g) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer immediate and full reinstatement to
Hernan Perez to his former position or, if such position no longer exists, to a substantially
equivalent position, without prejudice to Perez’s seniority or to other rights and privileges Perez
previously enjoyed.
(b) Make whole with interest Hernan Perez for any lost wages he may have suffered as
a result of Respondent’s unlawful discrimination against him, in the manner set forth in the
Remedy section of this decision.
(c) Within 14 days of the date of this Order, remove from all files any reference to the
discharge of Hernan Perez on November 9, 2011, and within 3 days thereafter, notify Perez in
writing that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay, if any, due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at the facility at the Chelsea Piers,
New York, New York, copies of the attached notice marked “Appendix.”46 Copies of the notice,
on forms provided by the Regional Director for Region 2, after being signed by Respondent’s

46 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by e-mail, posting on an intranet or an internet site and/or other electronic
means if Respondent customarily communicates with its employees by such means. Notices
shall be posted and, if pertinent, electronically distributed, in English and Spanish. Reasonable
steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time since September
22, 2011.
(f) 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
Respondent has taken to comply.
Dated: Washington, DC April 18, 2013
___________________________________
Lauren Esposito
Administrative Law Judge
JD(NY)–17–13
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against you because you engage in
activities on behalf of the Evelyn Gonzalez Union (“EGU”), or other protected concerted
activities.
WE WILL NOT threaten you with discharge in retaliation for your support for or activities on
behalf of EGU.
WE WILL NOT tell you that “bargaining will start from scratch” in an unlawful manner.
WE WILL NOT threaten you with the loss of business in retaliation for your support for or
activities on behalf of EGU.
WE WILL NOT threaten you with the loss of benefits in retaliation for your support for or
activities on behalf of EGU.
WE WILL NOT apply our “no talk” rule to prohibit conversations about EGU during work time,
when we permit employees to talk about other non-work related matters.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed to them by Section 7 of the Act.
WE WILL within 14 days of the date of the Board’s Order, offer Hernan Perez full reinstatement
to his former position, or, if that position no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights and privileges previously enjoyed.
WE WILL make Hernan Perez whole for any loss of earnings and other benefits suffered as a
result of his discharge, less any net interim earnings, plus interest compounded daily
.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Hernan Perez for the adverse tax consequences, if any, of receiving one
or more lump-sum backpay awards covering periods longer than one year.
JD(NY)–17–13
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Hernan Perez, and within 3 days thereafter, notify Perez
in writing that this has been done and that the discharge will not be used against him in any
way.
PIER SIXTY, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
26 Federal Plaza, Room 3614, New York, New York 10278
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S
COMPLIANCE OFFICER, (212) 264-0346.