Sands Hotel & Casino

National Labor Relations Board - Board Decisions

Jan 27, 1992

306 N.L.R.B. 172 (N.L.R.B. 1992)

172
306 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We grant the General Counsel’s motion to strike portions of the
Respondent’s exceptions and appendix and deny the Respondent’s
motion in opposition thereto insofar as the Respondent seeks to in-
troduce evidence which could have been submitted at hearing.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolution unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings. The Respondent also asserts that
the judge’s conduct of the hearing shows that he was biased against
the Respondent’s counsel. Upon full consideration of the record, we
perceive no evidence that the judge prejudged the case or dem-
onstrated any bias in his conduct of the hearing or his analysis or
discussion of the evidence. Accordingly, we find no merit in the Re-
spondent’s allegation of prejudgment and bias on the part of the
judge.
3 We shall amend the judge’s conclusions of law to include the ad-
ditional 8(a)(1) violation we find and the 8(a)(1) violation the judge
found but inadvertently omitted from the conclusions of law.
4 The judge recommended that the Board issue a broad order re-
quiring the Respondent to cease and desist from violating the Act
‘‘in any other manner.’’ We note that the General Counsel did not
request broad injunctive relief and we do not find the Respondent’s
conduct in this case egregious enough to warrant the issuance of
such an order. Accordingly, we are issuing a narrow cease-and-desist
order requiring the Respondent to cease and desist from violating the
Act ‘‘in any like or related manner.’’ See Hickmott Foods, 242
NLRB 1357 (1979).
In agreement with the General Counsel, we shall order that the no-
tice to employees be posted in both English and Spanish at the Re-
spondent’s facility.
5 It is the out-of-the-ordinary character of this activity that distin-
guishes this case from Emenee Accessories, 267 NLRB 1344 (1983),
where the Board found no unlawful surveillance because an em-
ployer representative simply stood in front of the employer’s build-
ing and watched union organizers conversing with employees.
6 Therefore McGraw Edison Co., 259 NLRB 702, 716 (1981),
does not support the Respondent’s position. There, the Board af-
firmed the judge’s finding that the presence of supervisors in the
employer’s parking lot while organizers engaged in soliciting cards
was lawful, since the employer had reason to anticipate violence on
its property, and an altercation requiring police presence in fact did
occur. In the instant case, there was no evidence that the Respondent
had any reasonable expectation of violence or of damage to its prop-
erty.
S.J.P.R., Inc. d/b/a Sands Hotel and Casino, San
Juan and Union of Trabajadores de la
Industria Gastronomica de Puerto Rico, Local
610, Hotel Employees and Restaurant Employ-
ees International Union, AFL–CIO. Case 24–
CA–5744
January 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 12, 1991, Administrative Law Judge Mar-
ion C. Ladwig issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed cross-exceptions and sup-
porting brief, a brief in opposition to the Respondent’s
exceptions, and a motion to strike portions of the Re-
spondent’s exceptions and appendix. The Respondent
filed a motion in opposition to the General Counsel’s
motion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 and to adopt the recommended Order as
modified.4
1. We find merit to the General Counsel’s exception
to the judge’s failure to address the record evidence in-
dicating that Manager Gonzalo de Varona, in the pres-
ence of Human Resources Director Luisa Palli, stated
to several employees on or about January 28, 1988,
that anyone signing authorization cards would be fired.
This threat was described by discriminatee Francisco
Perez, whose testimony was generally credited, and the
relevant testimony was unrebutted by de Varona, who
also testified at the hearing. Accordingly, we find that
the Respondent’s agent made such a statement. It
clearly constitutes a threat of reprisal for engaging in
protected activity in violation of Section 8(a)(1) of the
Act.
2. In affirming the judge’s finding that the Respond-
ent engaged in unlawful surveillance by posting one or
two security guards near the employee entrance and
another security guard with binoculars in an upstairs
hotel room in order to observe employees and union
agents soliciting union authorization card signatures
across the street from the hotel, we find no merit to
the Respondent’s contention that this surveillance was
lawful since the employees’ activities were open and
in public. Rather, we find that the Respondent’s sur-
veillance activity, particularly its posting of a guard
with binoculars,5 constituted more than ordinary or
casual observation of public union activity. There is no
evidence that the Respondent’s conduct was based on
safety or property concerns.6 We therefore find that the
Respondent engaged in surveillance in violation of
Section 8(a)(1) of the Act. See Arrow Automotive In-
dustries, 258 NLRB 860 (1981).
AMENDED CONCLUSIONS OF LAW
Add the following Conclusions of Law 3 and 4 and
renumber the remaining paragraph.
‘‘3. By informing employees they were discharged
for engaging in protected concerted activities, the
Company violated Section 8(a)(1).
‘‘4. By threatening employees with discharge if they
signed union authroization cards, the Company vio-
lated Section 8(a)(1).’’
173SANDS HOTEL & CASINO
1 All dates are in 1988 unless otherwise indicated.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
S.J.P.R., Inc. d/b/a Sands Hotel and Casino, San Juan,
Puerto Rico, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraph 1(e) and add the following para-
graphs 1(e) and (f).
‘‘(e) Threatening employees with discharge if they
signed union authorization cards.
‘‘(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the following for paragraph 2(d).
‘‘(d) Post at its facility in Isla Verde, Carolina, Puer-
to Rico, copies of the attached notice marked ‘‘Appen-
dix’’ in English and Spanish.3 Copies of the notice, on
forms provided by the Regional Director for Region
24, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive days in the conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.’’
3. Substitute the attached notice for that of the
adminstrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Union De
Trabajadores de la Industria Gastronomica de Puerto
Rico, Local 610, Hotel Employees and Restaurant Em-
ployees International Union, AFL–CIO or any other
activity.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activity.
WE WILL NOT engage in surveillance of our employ-
ees’ union and other protected concerted activities.
WE WILL NOT inform employees they were dis-
charged for protected concerted activities.
WE WILL NOT threaten employees with discharge if
they sign union authorization cards.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Jose Dominguez, Ismael Ithier, Jesus
Lopez, and Francisco Perez immediate and full rein-
statement as permanent employees to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any
net interim earnings, plus interest.
WE WILL notify each of them that we have removed
from our files any reference to his termination and that
the termination will not be used against him in any
way.
S.J.P.R., INC. D/B/A SANDS HOTEL AND
CASINO, SAN JUAN
Harold E. Hopkins Jr., Esq., for the General Counsel.
Maria Milagros Soto, Esq., of Santurce, Puerto Rico, for the
Respondent.
Norman Pietri, Esq., of San Juan, Puerto Rico, for the
Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Hato Rey, Puerto Rico, on September 28–30,
1988, and from June 25 to July 6, 1990. The charge was
filed February 12, 1988 (amended March 24 and at the trial),
and the complaint was issued March 25, 1988, and amended
at the trial.
On January 27, 1988,1 employees Jose Dominguez, Ismael
Ithier, Jesus Lopez, and Francisco Perez led a protest against
the Company’s requiring kitchen employees to sign a second
90-day temporary contract instead of giving them permanent
employment and medical and other benefits as promised. The
Company scheduled an employee meeting with the general
manager the next day to discuss the complaints. Later that
evening, after a security guard overheard the four employees’
plans to go to the Union for advice, the Company canceled
the scheduled meeting and began replacing them imme-
diately.
The primary issues are whether the Company, the Re-
spondent, (a) discharged the four employees because of their
union and protected concerted activities, (b) informed three
of them that they had been terminated because of these ac-
tivities, and (c) engaged in surveillance and other coercive
conduct, violating Section 8(a)(1) and (3) of the National
Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Company, I make the
following
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, operates a hotel and casino
in Isla Verde, Carolina, Puerto Rico, where it annually de-
rives over $500,000 in gross revenues and receives goods
valued over $50,000 directly from outside Puerto Rico. The
Company admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Promise of permanent employment and
medical benefits
In the absence of Executive Chef Theodore Paul and Exec-
utive Sous Chef Robert Roehrich at the trial, the evidence is
unrefuted that they promised employees Jose Dominguez,
Ismael Ithier, Jesus Lopez, and Francisco Perez, as well as
other kitchen employees, permanent employment after 90
days if the employees received favorable evaluations.
Jose Dominguez. Chef Paul told cook Dominguez that he
would get a permanent position in 3 months and be given
medical benefits and a 50-cent raise (Tr. 288).
Ismael Ithier. Sous Chef Roehrich told pantry chef Ithier
that he would have a probationary contract, would be given
three evaluations and, according to those evaluations, would
be made a permanent employee and would receive benefits
and a wage increase (Tr. 56, 60, 151). Roehrich gave Ithier
a list of the benefits (G.C. Exh. 10), on company stationery
(see R. Exh. 30) and headed ‘‘EMPLOYEE BENEFITS.’’
The list included medical and life insurance and 10 holidays.
These benefits are identical to the benefits listed in a news-
letter distributed later at a Christmas party (R. Exh. 18), ex-
cept that holidays are now called bonus days and a Christmas
bonus has been added.
Jesus Lopez. In cook Lopez’ interview by Paul and
Roehrich, he was told that ‘‘if I passed a 90 days proba-
tionary period, I would get a permanent position at work, I
was going to be promoted’’ and given ‘‘a medical plan and
a raise’’ (Tr. 567).
Francisco Perez. Similarly, cook Perez was told by Paul
that ‘‘after three months I would be made a permanent em-
ployee’’ and given a $1 raise and a medical plan (R. Exh.
5A at 1; Tr. 386–389).
The evidence does not reveal whether similar promises
were made to employees by the heads of other departments
at the opening of the new hotel and casino on November 1,
1987.
2. Signing of ‘‘temporary’’ contracts
a. Temporary or permanent employment
The four employees (Dominguez, Ithier, Lopez, and Perez)
and other kitchen employees routinely signed the temporary
employment agreement along with other papers, unaware that
the ‘‘temporary’’ contract could be construed contrary to
their promised permanent employment. None of them was
given a copy.
The Company asserts in its brief (at 97–98, 113) a distinc-
tion between types of contracts under Puerto Rican judicial
and statutory law. It asserts that employee protection in Puer-
to Rico from termination, except for just cause, applies to in-
definite-term (permanent) employees after a 90-day max-
imum probationary period. According to the Company, this
protection extends only (a) to employees that are not dedi-
cated to ‘‘seasonal or incidental’’ jobs, (b) when services are
not to be rendered ‘‘within a determined period of time,’’
and (c) to certain definite-term contracts that may ‘‘create an
expectancy of continued employment.’’ Under the statutory
law, ‘‘transitory [temporary] employees do not enjoy rights
to continued employment.’’
Here the Company provided the ‘‘temporary’’ contract
form for all its new hourly employees to sign as part of the
employment papers, even though it employs many or most
of its employees year round. For example, at the peak of the
season in late January the Company employed a total of 44
kitchen employees (G.C. Exh. 23). Human Resources Direc-
tor Nilda Vazquez Becerril estimated the number to be 40.
She admitted that during the slow summer season (when the
occupancy was about 70 to 80 percent) and until the next
February 1989 when she left the Company, there was about
‘‘the same number’’ (Tr. 1473).
The Company does not explain, in these circumstances,
how the hourly employees could be considered ‘‘transitory
[temporary] employees’’ or employees having ‘‘seasonal or
incidental’’ jobs, how their services could be rendered
‘‘within a determined period of time,’’ or why the contracts
(if construed actually to be for a definite term) would not
‘‘create an expectancy of continued employment.’’ At this
stage of the proceeding, however, I do not find it necessary
to rule on whether the employees became permanent employ-
ees after 90 days of employment.
b. The contractual language
Human Resources Director Becerril (a lawyer) prepared
(Tr. 1444–1445) the ‘‘Temporary Employment Agreement’’
both in English (R. Exh. 4) and in Spanish (G.C. Exh. 48).
The English version, which the four employees signed, has
printed near the top under ‘‘Conditions of Employment’’ the
following:
A. VARIABLES
Period of Employment: Less than 90 days or a max-
imum of lldays.
The Spanish version, under ‘‘VARIABLES,’’ reads (in Span-
ish): ‘‘Period of Employment: From ll to ll.’’ I note
that the Spanish version was signed by another kitchen em-
ployee, cook Italo Sibilia (G.C. Exh. 48), and that at least
by the time of trial, the blanks after ‘‘Period of Employ-
ment’’ had been filled in (as discussed below).
The first of the following 10 paragraphs of the temporary
employment agreement (a one-page, single-spaced, legal-size
document) reads as follows:
B. FIXED
1. Upon execution of this Agreement, the temporary
employee accepts the job and work conditions herein-
after described during the temporary period of employ-
ment, fully understanding that no promise of regular
175SANDS HOTEL & CASINO
employment has been made. Temporary employees will
compete for regular jobs, which will be awarded when
available on the basis of performance and employee’s
qualification. The Hotel may discretionally terminate
the employment contract prior to the maximum term of
employment if or when the employee services are no
longer required. [Emphasis added.]
Although this paragraph refers to a ‘‘temporary period of
employment,’’ the maximum number of days had been left
blank after ‘‘Period of Employment’’ in the contracts that
Dominguez, Ithier, and Lopez signed. Moreover, as they
credibly testified, the space after ‘‘Specify any special condi-
tions’’ near the bottom of the page was also blank when they
signed the documents.
Therefore, there was no definite ‘‘temporary period of em-
ployment’’ stated in the document when signed. At some un-
disclosed later time, the space after ‘‘Specify any special
conditions’’ was filled in to read: ‘‘Contract expires [date],’’
with the date of February 7 for Dominguez (R. Exh. 2), Jan-
uary 29 for Ithier (R. Exh. 1), and February 1 for Lopez (R.
Exh. 7), 93 days (instead of 90 days) after the November 1
signing date in his contract.
Dominguez’ contract shows on its face that these words
and date after ‘‘Specify any special conditions’’ were obvi-
ously inserted by someone other than the person who filled
in the employment data at the top of the page and the sign-
ing date at the bottom. The handwritten 7’s at the top (by
Dominguez, Tr. 247) and at the bottom are typical (Amer-
ican) sevens, whereas the insert has the barred (European)
handwritten seven: ‘‘Contract ends 2/7/88.’’
Human Resources Assistant Director Luisa Palli (whose
credibility is discussed below) claimed that she filled in the
maximum of ‘‘90’’ days and the ‘‘Contract ends 1/29/88’’ in
Perez’ contract in his presence (Tr. 1292–1293).
c. Contracts signed
None of the four employees read the employment contract
before signing it.
Jose Dominguez (who testified in English) credibly testi-
fied that the title ‘‘Temporary Employment Agreement’’ just
‘‘didn’t sink in. . . . It was so quick when [Theodore Paul]
hired me . . . that I just went to Personnel . . . and lay my
name [on] many papers. Believe me, if I would have known
this was a temporary agreement, I would not have signed it.’’
(Tr. 340.) He also credibly testified that he did not read the
contract and that if he had seen the handwritten ‘‘Contract
ends 2/7/88’’ in the contract, showing that it would end in
3 months, ‘‘I would not have had [anything to do] with Paul
. . . or the Sands Hotel per se’’ (Tr. 338–339, 364–365).
Ismael Ithier (who testified in Spanish) credibly testified
that he did not read the contract, but ‘‘As far as I’m con-
cerned, this is a probationary employment contract’’ because
of what Sous Chef Roehrich promised him. One of the secre-
taries in the personnel (human resources) office ‘‘who gave
me this contract told [me] ‘Fill out this part and sign here
and write the date here,’ and that was it.’’ Immediately
‘‘after I filled out the heading and I signed it I gave it to
the [secretary].’’ The maximum number of ‘‘90’’ days and
the sentence ‘‘Contract ends Jan. 29, 1988’’ had not been
filled in. Human Resources Director Becerril, who later
signed the document, was not present. (Tr. 152–154, 160–
161.)
Jesus Lopez (who testified in Spanish) also signed the
English version of the employment contract (R. Exh. 7),
which has the maximum number of days left blank and in
which (as the Company agrees, Tr. 656) the sentence ‘‘Con-
tract expires Feb. 1/88’’ is written in a different color of ink.
Lopez credibly testified that he signed only his name, that
Becerril’s secretary filled in the employment data at the top,
and that Becerril signed the contract in his presence (Tr.
655–657). Lopez did not read the document and nobody read
it to him (Tr. 959). I note that on his union authorization
card (G.C. Exh. 22), which is printed in Spanish, he wrote
the name of his department as ‘‘Kichent’’ (for Kitchen). As
he credibly testified (in Spanish), ‘‘I don’t know English that
well’’ (Tr. 672).
When called as a defense witness, Human Resources As-
sistant Director Palli (now the director) testified that she
wrote the names of the department and supervisor (on the
line below the employment data), the sentence ‘‘Contract ex-
pires Feb. 1/88’’ (near the bottom of the page), and the sign-
ing date in Lopez’ contract (Tr. 1299).
Although the Company contends in its brief (at 15) that
Palli ‘‘filled out the blanks in Lopez’ temporary contract in
his presence’’ (citing Tr. 1298), that transcript reference is to
Palli’s testimony about another document in Lopez’ file, not
about the execution of his contract. Palli did not confirm the
company counsel’s later statement, in a preface to a question
about Lopez’ contract: ‘‘So, at that time where you inter-
viewed Mr. Lopez, you filled out his contract’’ (Tr. 1302).
Furthermore, the Company offered no explanation for the
sentence ‘‘Contract expires Feb. 1/88’’ being written in a dif-
ferent colored ink, if in fact Palli had filled in that sentence
in Lopez’ presence when she wrote the name of the depart-
ment and supervisor near the top of the page. I find that Palli
was not present when Lopez signed the contract and gave it
back to the secretary, and that Palli inserted the sentence
sometime later.
I note that there is some indication that when cook Italo
Sibilia signed the Spanish version of the contract (G.C. Exh.
48), the dates may not have been filled in (under ‘‘VARI-
ABLES’’) to read, in Spanish: ‘‘Period of Employment:
From 11/1/87 to 1/30/88.’’ Those handwritten dates and the
handwritten sentence ‘‘Contract expires 1/30/88’’ near the
bottom, if filled in, may have been sufficient to alert him to
question whether the contract was not merely a temporary
contract for a 90-day probationary period, but was instead a
definite-period contract expiring on January 30.
Although Sibilia did not testify, both General Counsel and
company witnesses testified that he was present in the Janu-
ary 27 protest meeting in Executive Chef Martin Maurer’s
office (discussed below). It is also undisputed that in the pro-
test meeting, he complained that he had left a permanent po-
sition at another employer (Tr. 83). Like other kitchen em-
ployees, he undoubtedly believed he had been promised per-
manent employment after a favorable 90-day probationary
period. Either the dates of employment had not been filled
in when he signed the contract, or they were filled in and
he did not construe the contract in the way the Company
does.
Francisco Perez (who testified in Spanish) was given the
English version to sign, even though the ‘‘Recruitment Inter-
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
view Record’’ in his personnel file (G.C. Exh. 7D; Tr. 1284)
bears the comment: ‘‘Eng[lish] poor.’’ Perez, who speaks
and reads little English (Tr. 494), demonstrated on cross-ex-
amination that he did not attribute the same significance to
the ‘‘temporary’’ contract that the Company attributes to it.
On being asked the difference between a ‘‘90 days probation
period for regular employment versus or against 90 days
definite period of time or temporary period,’’ he credibly
stated his belief that ‘‘it’s the same’’ (Tr. 515–516).
Both Becerril and Palli testified (Tr. 1286, 1293, 1302,
1304, 1380, 1451) that when explaining the employment
contract to new employees, they used language similar to the
contract language: that is, that it was a temporary contract
for 90 days and that employees would be competing for reg-
ular jobs. This, of course, would not specifically disavow the
promises made by Chef Paul and Sous Chef Roehrich to the
kitchen employees that if their evaluations were favorable,
they would be made permanent employees after the 90-day
probationary period.
Palli, however, went further at one point in her testimony.
She claimed (Tr. 1288) that she told employees
That depending on evaluations, they will be appointed
to a renewal [presumably a second temporary contract]
or depending on evaluations, that will be the end of the
contract or if the time arise[s] for giving a regular con-
tract and the candidate [has] merit for that appointment,
they will have all the benefits, the fringe benefits that
the Company will give to their regular employees. [Em-
phasis added.]
I discredit her claim that she mentioned a ‘‘renewal’’ or
a second temporary contract. Undoubtedly, if she had, this
case would not have arisen. The kitchen employees would
not have been so upset on January 27 (as discussed below)
when they heard that most of them were being given a sec-
ond temporary contract instead of a regular contract with per-
manent status. (Whereas Dominguez, Ithier, Lopez, and
Perez, by their demeanor throughout their lengthy testimony,
impressed me most favorably as being honest witnesses, en-
deavoring to give their best recollections, Palli impressed me
most unfavorably as a witness. By her demeanor on the stand
she appeared willing to give any testimony that might help
the Company’s cause.)
Despite Palli’s claim that she told new employees about a
‘‘renewal’’ of their temporary contracts ‘‘depending on eval-
uations,’’ she gave testimony at one point that revealed the
employees were expecting permanent employment after 90
days. She admitted that one of the kitchen employees, cook
Victor Perez, became ‘‘very upset for the renewal of con-
tract’’ on January 27 and threatened to resign ‘‘if I have to
sign a renewal’’ (Tr. 1427–1428)—before learning that he
was being given a permanent contract.
The Company also presented other testimony confirming
that kitchen employees were expecting permanent status after
90 days of employment. When called as a company witness,
cook Rafael Caraballo testified (Tr. 1066):
Q. [By Attorney Soto] Okay. Mr. Caraballo, could
you tell us what, to the best of your recollection, to-
wards the end of January in the kitchen, related [to] the
renewal of the temporary contracts?
A. It was rumored in the kitchen that . . . certain
permanent positions were going to be given. And I
thought it was for everybody, you know. But it wasn’t
like that. And as it was not so, many people in the
kitchen were upset, including myself. [Emphasis added.]
I discredit the testimony by cook Carlos Rivera (whose credi-
bility is discussed later) that he was told when hired that
‘‘not all the employees would receive the regular position or
permanency the same day,’’ but ‘‘they were going to be
awarded . . . in steps, slowly’’ (Tr. 1179).
I find it unnecessary to decide at this stage of the pro-
ceeding whether the ‘‘temporary’’ contract was a lawful
avoidance or an ineffectual evasion of the Puerto Rican statu-
tory law that gives permanent employees protection from ter-
mination (except for just cause) after a 90-day probationary
period. I also find it unnecessary to rule on the General
Counsel’s argument in his brief (at 7) that ‘‘This background
clearly demonstrates that [the Company] . . . to attract and
hire well qualified hotel workers, knowingly misled its em-
ployees.’’
I do find that the kitchen employees joined in protesting
what they considered to be an injustice.
3. Permanent status for only seven employees
The evidence does not disclose when the Company de-
cided to award permanent status to only 7 of the 44 kitchen
employees.
The Company’s so-called Christmas Party newsletter (R.
Exh. 18) described its medical and other benefits. General
Manager Edward Tracy’s welcoming message on the front
page referred to this ‘‘list of the benefits this company pro-
vides you,’’ without giving any indication that the Company
planned to withhold these benefits, as well as promised wage
increases, from a large majority (84 percent) of its kitchen
employees by keeping them on temporary status. The mes-
sage read:
Dear Employee:
It is with great joy that we celebrate a job well done
and have an opportunity for sharing the joys of the Hol-
iday Season with the promise of the New Year.
Enclosed you will find a list of the benefits this com-
pany provides you, along with conventional benefits
mandated by law. Soon, you will have a Handbook that
will explain in detail these benefits. Once you receive
it, get acquainted with all the benefits and if you have
any questions regarding them, do not hesitate to contact
us.
Once more, thanks for a job well done and enjoy the
Holiday Party! [Emphasis added.]
On January 12, however, the Company in effect an-
nounced to its managers and supervisors a repudiation of the
promises by Chef Paul and Sous Chef Roehrich that kitchen
employees would be given permanent status, with medical
benefits, after 90 days if they received favorable evaluations.
In a memo approved by Tracy, Human Resources Director
Becerril notified ‘‘All Department Heads/Managers/-
Supervisors’’ as follows (R. Exh. 20):
177SANDS HOTEL & CASINO
As all of you know, most of the temporary contracts
of our hourly personnel end next January 29, 1988.
On account of this, it is imperative that evaluations
for the first 90 days of operation are completed and re-
turned to the Human Resources Office at least one
week before January 29, 1987, so that we know in ad-
vance whose contracts are going to be renewed, which
contracts will be ended and which employees are going
to be appointed to regular positions.
It is also of utmost importance that you be aware
that a satisfactory evaluation does not necessarily mean
that the person is going to have a permanent position.
There are few permanent positions and all hourly em-
ployees are competing for them. Consequently, you are
not to promise regular appointments to anyone.
Please be advised once more that nobody is allowed
to work without a contract because the legal con-
sequences of this is that the person becomes permanent
without having to go through a probationary period.
[Emphasis added.]
On the same date, Human Resources Assistant Director
Palli send memos to department heads, scheduling dates for
the contract renewals. The one to Executive Chef Martin
Maurer (who meanwhile had replaced Chef Paul in Decem-
ber, Tr. 173) read as follows (R. Exh. 19):
We have assigned Jan. 27/88 for the renewal of con-
tracts of your Department at Ballroom B from 9:00 a.m.
to 9:00 p.m.
Please send all employees up, two by two, during
their shifts. All employees must sign their contracts on
the assigned date, including those on their days-off, so
that our office can plan ahead [for] replacements, if
necessary.
We will appreciate your full cooperation on this mat-
ter.
Whenever the decision was made to give permanent status
to only 7 of the 44 kitchen employees, I agree with the Com-
pany that the decision was made before the employees en-
gaged in any union activities.
4. Failure to produce 90-day evaluations
As quoted above, the department heads were notified by
Human Resources Director Becerril on January 12 that ‘‘it
was imperative that evaluations for the first 90 days of oper-
ation are completed and returned to the Human Resources
Office at least one week before January 29.’’
Although these 90-day evaluations of the four employees
were made (Tr. 73, 288, 390, 650) and although all evalua-
tions were subpoenaed (G.C. Exh. 39; Tr. 10), the Company
failed to produce any of these last evaluations. Because of
this failure and because the Company admitted at the trial
(Tr. 629) that the work of the four employees (who were of-
fered a second temporary contract) was ‘‘satisfactory,’’ I
infer that all four of the 90-day evaluations were favorable
to continued employment.
In fact, Jose Dominquez was the receiving training for
framation to the position of garde manger (Tr. 288–289).
This position (a cook in charge of cold-dish preparation) was
then held by cook William Rivera, a company witness (Tr.
1248–1249, 1255, 1260–1262). Francisco Perez, who had 15
years of experience in Italian cuisine (Tr. 387), was a par-
ticularly valuable employee, cooking for the high-quality
Leonardo’s Restaurant (Tr. 397, 908). All three of his eval-
uations (none of which was produced) were excellent (Tr.
390), with all the factors marked in the ‘‘Outstanding’’ col-
umn (Tr. 392; G.C. Exh. 20). When Executive Sous Chef
Douglas Page (who did not testify) gave Ismael Ithier his last
evaluation, Page marked all the factors in the ‘‘Very Good’’
and ‘‘Outstanding’’ columns (Tr. 73).
5. Preparations for opposing union
As part of its defense, the Company showed the careful
preparations it had made for ‘‘legally’’ opposing any union
organizational efforts.
As summarized in the Company’s brief (at 72–73, 112,
118–119):
[The Company] rehearsed [an] exercise on unioniza-
tion, including charts, and a training session by Attor-
ney Peter Pantaleo, a Labor Specialist. It is directed, on
the advent of a union drive, to legally discourage
unionization . . . .
. . . .
In the case of a new hotel, in the first three years
of operation, management expects to lose money be-
cause they are highly leveraged through junk bonds that
carry a high interest rate. . . . Thus, management must
exercise fiscal restraint to minimize these losses and
use every legal means to achieve this end.
. . . .
The goal of the [Company] was to maintain a non-
union shop since the first two or three years of oper-
ation generally generate losses and the hotel needed the
economic flexibility of a nonunion environment. [The
Company] needed to make use of temporary employees,
who do not quality for fringe benefits on a number of
positions in order to maintain losses at the lowest range
possible. . . . To that effect . . . Pantaleo . . . was
hired by the [Company] to train its management on
how to maintain a nonunion status in case of organizing
efforts. He trained Palli [and two others] on how to ad-
dress the employees on what they should know about
unions in case of organizing efforts. [Emphasis added.]
The perceived importance of preventing unionization was
further clarified at the trial. The cost of fringe benefits in
Puerto Rico is heavy, adding about 50 percent to the payroll
expense (Tr. 845). Under the union agreement, employees
become permanent after only a 45-day probationary period
(Tr. 1562).
Because of the high unemployment rate in Puerto Rico at
the time, a large pool of nonunion replacement employees
was available to work as temporary employees. The Com-
pany therefore had a strong economic incentive to keep out
the Union to avoid the high cost of providing medical and
other fringe benefits for employees who, under the Union’s
contract, would become permanent after 45 days of employ-
ment. As stated in the Company’s brief (at 103): ‘‘If the em-
ployees could not accept the [temporary] contract that was
offered, there is a high 22% unemployment market in Puerto
Rico that would accept even a temporary job.’’
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I note that when Human Resources Director Becerril was
first asked if ‘‘a major consideration’’ for making permanent
only seven kitchen employees was ‘‘trying to save on wages
for the next three months,’’ she answered (Tr. 1466):
No, definitely not, because we’re offering them good
terms and conditions of employment. We didn’t want to
. . . make economies on account of their salaries or
their terms and conditions of employment. [Emphasis
added.]
She later gave various purported reasons for the small num-
ber of permanent positions, including the claim that General
Manager Tracy ‘‘didn’t want to create false expectations’’ of
permanent employment and ‘‘That’s correct,’’ the ‘‘major
reason for not giving them [medical and other fringe] bene-
fits for the next three months was because it would be dis-
appointing to the employees after that if they were laid off’’
(Tr. 1468–1496). Still later she testified (Tr. 1473–1474)
when asked if it was true that
you knew in January 1988, that you’d need more than
seven? And isn’t it true that you in practice actually
needed around 40, and that the only or the major dif-
ference between making more of these employees per-
manent in January and not doing so, was to save on
labor costs?
WITNESS: Well, I guess that maybe yes, that was a
reason.
Becerril, by her demeanor on the stand, did not impress me
as a particularly candid witness.
The Company argued at the trial (Tr. 845):
What this case is about basically . . . is that four
employees out of six hundred or seven hundred that
were hired on November 1st, to work at the Sands
Hotel, challenged the use of these temporary contracts.
The General Counsel does not challenge the legality of the
previously planned conduct of Palli and other company rep-
resentatives at the January 29 antiunion ‘‘orientation’’ meet-
ing in opposing the union organizing drive. The General
Counsel does contend that the Company was discriminatorily
motivated when—during the evening of the January 27 pro-
test meeting and immediately after the first mention of the
Union—it decided to discharge the four employees, Jose
Dominguez, Ismael Ithier, Jesus Lopez, and Francisco Perez.
B. Discharge of Four Employees
1. The January 27 protest meeting
On Wednesday, January 27, second-shift (3 to 11 p.m.)
employees in the kitchen became very upset when they
learned that almost all of them were being offered a second
temporary contract instead of permanent employment (Tr.
76–81, 175, 290–291, 350, 397–400, 569–571, 660–662,
1250).
After they complained in the kitchen to Chef Martin
Maurer (who did not testify), he invited the protesting em-
ployees to his office (Tr. 80, 180–181, 291, 400–401, 571,
660, 665). The Company admits in its brief (at 5) that be-
sides the four employees (Jose Dominguez, Ismael Ithier,
Jesus Lopez, and Francisco Perez), the others who attended
the meeting were cooks Rafael Caraballo, John Morales, Car-
los Rivera, and Italo Sibilia. (Tr. 82, 181, 292–293, 401,
572–573, 659–660.) Only the four employees, who led the
protests on behalf of the kitchen employees, remained for the
entire meeting, which lasted about 1-1/2 hours (Tr. 90–91,
292, 296, 403, 573, 659, 665, 883, 1011–1012, 1476).
Dominguez (who speaks English well) was the employee
spokesman in the first part of the office meeting with Maurer
(who did not speak Spanish). After a few minutes Maurer
was joined by Food and Beverage Assistant Manager
Gonzalo de Varona and around 5:30 p.m. by four other com-
pany representatives. They were Resident Manager Luis Mo-
rales (the ‘‘Executive Assistant,’’ acting as general manager
in the absence of Edward Tracy), Food and Beverage Man-
ager John Cruz, Human Resources Director Becerril, and
Becerril’s assistant Gualberto Nater (Tr. 83–85, 184, 292,
401, 878–879, 1004–1005, 1009, 1011, 1043, 1462).
The employees complained, in part, that they had been
promised permanent positions, medical benefits, and raises
after a 90-day probationary period; that some of them had
left permanent jobs to work there; that they did not need a
temporary contract because they had already passed the pro-
bationary period; and that they had been deceived (Tr. 83,
87–88, 178, 293–294, 400, 402, 404–405, 663–664, 932,
1008, 1475). De Varona urged the employees to keep cool
and go ahead and sign the renewal of the temporary contract,
but the employees responded that they ‘‘wanted to speak
with [General Manager] Tracy’’ (Tr. 295, 1014–1015, 1042).
Cruz denied that the employees had been willfully de-
ceived. He stated, in part, that they were ‘‘good employees,’’
but ‘‘we had to be very conservative about giving out perma-
nent positions’’ to avoid being ‘‘burdened with any extra fi-
nancial costs of fringe benefits.’’ (Tr. 880–881.) He stated
there would be only seven permanent positions then, and an-
other eight 3 months later (Tr. 86, 294, 402, 1464).
Becerril (who had prepared the temporary contract forms)
stated, in part, that she was entitled to extend the contract
for another 90 days (Tr. 91, 295, 402) and ‘‘almost begg[ed]
them to sign their contracts because I knew they were good
employees and we wanted to keep them there’’ (Tr. 1465).
She admitted that the employees ‘‘asked to see Mr. Tracy’’
and that she told them ‘‘he was out of the country at that
moment, but as I understand he was coming back the next
day’’ (Tr. 1477).
Finally Acting General Manager Morales (who did not tes-
tify) arranged with Becerril that a meeting be scheduled for
the following afternoon at 2 p.m. in the ballroom for kitchen
employees on the three shifts to meet with Tracy. Morales
then told the four employees, ‘‘Let’s leave this as it is and
tomorrow we [will] discuss about the contracts at 2:00 p.m.
with all the employees of the department’’ (Tr. 88–89, 91–
92, 178, 188, 296–298, 405–406, 413, 573, 664; R. Exh. 8A,
par. 4, p. 5). This concluded the meeting and the four em-
ployees returned to work (Tr. 92, 297, 507, 1015). The four
employees admittedly were paid for all the time they spent
in the protest meeting (Tr. 665; R. brief at 94).
2. Posted notices of 2 p.m. meeting
About 7 p.m. that Wednesday evening, January 27, Sous
Chef Harrison Andrews (who did not testify) posted two
large notices in the kitchen, calling a meeting the next day.
179SANDS HOTEL & CASINO
They were addressed to all kitchen personnel and read, in ef-
fect, ‘‘Meeting at the Ballroom on January 28th, at 2:00
o’clock in the afternoon,’’ and were signed ‘‘The Manage-
ment.’’ (Tr. 93–96, 102, 189–190, 298, 414–415, 585; G.C.
Exh. 11.)
3. Guards posted in kitchen
That evening, after the January 27 protest meeting in Chef
Maurer’s office, two security guards (with a walkie-talkie)
were posted in the kitchen an hour or two, or longer (as dis-
cussed later). One of the guards was standing within a few
feet of where Dominguez, Ithier, and Perez were working—
listening to their conversation when they and Lopez dis-
cussed going to the Union the next day for advice. (Tr. 97–
101, 104–106, 201, 300–302, 356, 385, 407–411, 578–580,
1229.)
These two hotel guards, who were on the payroll of a
guard company, were assigned and supervised by the Com-
pany’s own security shift supervisor, Lourdes Santos (706–
710, 730, 735, 1151–1152). No guard had ever been assigned
to the kitchen before (Tr. 199, 301, 408, 1232).
Neither Supervisor Santos nor either of the guards testi-
fied, and the Company failed to introduce Santos’ incident
report, also as discussed later.
The allegations in the complaint that this and other con-
duct constituted unlawful surveillance are discussed later as
well.
4. Meeting canceled and four employees replaced
About 10 o’clock that evening, January 27, the Company
decided to cancel the scheduled 2 p.m., January 28 meeting
and to replace the four employees. To find replacements, it
decided to place an ad the next day in the newspaper and
to begin immediately to search its files of previous applica-
tions. (Tr. 908, 1484.) The ad, placed before 11 a.m. the next
morning, appeared in the newspaper on January 29 (R. Exh.
46).
The replacements were hired the following week. The
Company admits in its brief (at 63) that Hubert Erbacher (for
Ithier) signed a temporary contract and began working Mon-
day, February 1; Norman Losier (for Perez) February 3; and
Erasmos Rodriguez (for Dominguez) and Ricardo Vega (for
Lopez) on Friday, February 5. (Tr. 1489–1490, 1514–1515,
1519, 1521, 1523).
5. Termination form letter
At 2 p.m. on Thursday, January 28 (the previously sched-
uled time for the meeting with kitchen employees), Human
Resources Director Becerril was instead meeting with Com-
pany Attorney Vega (Tr. 435), presumably preparing the ter-
mination form letter for the four employees. The letter was
worded to accept the employees’ purported ‘‘decision’’ not
to sign the second temporary contract.
As originally prepared, this form letter (in Spanish over
Becerril’s signature, see the letters given Perez and Ithier,
G.C. Exhs. 3, 4) included the date January 29 both at the top
and in the last paragraph for the contract expiration date (90
days after the November 1 hotel opening). The translation
reads as follows (G.C. Exhs. 3A, 4A):
January 29, 1988
Dear Mr.
We regret very much the decision you expressed to
us about not accepting a renewal of your temporary
employment contract with Sands.
At this time we have made an evaluation of the num-
ber of employees for an indefinite time which based on
the short time we have been operating we can commit
ourselves with expectancy of work all year long. The
fact that on this occasion you had not been chosen for
a regular job did not mean that further on you would
not have such an opportunity.
We regret your decision of not wanting to sign [a re-
newal of] the temporary employment contract which
expires today January 29, 1988. We wish you success
in your employment endeavors. [Emphasis added.]
On the two original form letters the names of Perez and
Ithier were inserted, obviously in different type, presumably
later in Becerril’s office.
The letter to Lopez (G.C. Exh. 5) was the same form let-
ter, except that the entire letter was copied, in different type,
with a 1-day earlier date, January 28. As found below, Janu-
ary 28 was the date Becerril gave him the termination letter
after Chef Maurer warned him about organizing for the
Union during working time (following his attempt that after-
noon before work to sign the second temporary contract).
The retyped letter replaced the January 29 contract expiration
date in the third paragraph of the form letter with the date
February 1 which, as found above, was the date (93 days
after the November 1 signing date) inserted in his temporary
contract after he signed it.
The Company also retyped Dominguez’ termination letter
(G.C. Exh. 16) with a January 28 date, even though he was
not working that Thursday evening. As found below, he went
with Lopez that afternoon to sign the new contract, but later
went home because it was his day off. (The Company re-
placed the January 29 contract expiration date with February
7, evidently because Dominguez was hired November 12, R.
Exh. 2, not on the November 1 opening date.)
The evidence does not support the contention in the Com-
pany’s brief (at 54) that ‘‘in the morning of the 28th
[Becerril] drafted the four termination letters’’ (emphasis
added). Becerril merely claimed (Tr. 1541–1542, 1543):
[T]hey were started being drafted on January 28th.
There are two letters that are dated January 28th and
the other ones were prepared in the morning of January
29th. . . .
. . . .
A. Well, I started . . . I think that two of them were
drafted on January 28th and the other ones were drafted
on January 29.’’
She did not admit that the form letters dated January 29 were
prepared on January 28 and that two of the letters were
retyped the same day in her office with a January 28 date.
6. Efforts to sign temporary contract
Meanwhile on Thursday morning, January 28, the four
employees went to the union hall, signed authorization cards,
and obtained other cards to take back to the hotel. The Union
advised them to go ahead and sign the second temporary
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contract, which could be challenged at a later time. (Tr. 107–
110, 117–118, 201–206, 299, 355, 411–413, 516–518, 581–
585, 670.)
The four employees then sought to sign the temporary
contract.
About 1:30 or 1:45 that Thursday afternoon (over an hour
before the beginning of the second shift at 3 p.m.), the four
employees and other kitchen employees began arriving to at-
tend the 2 p.m. meeting. (Dominguez came in specifically for
the meeting. Thursdays and Fridays were his days off, Tr.
305.) On the way to the meeting, Dominguez, Lopez, Perez,
and third-shift (11 p.m. to 7:30 a.m.) cook Juan Delgado met
Food and Beverage Assistant De Varona in the kitchen hall-
way. De Varona informed them that the 2 p.m. meeting had
been canceled. (Tr. 303, 586.)
I note that when De Varona was called as a defense wit-
ness, he claimed that all he recalled was that he said ‘‘Hi’’
to the ‘‘four employees’’ (referring to Dominguez, Ithier,
Lopez, and Perez) when he saw them ‘‘in or around 12:00
noon, 1 o’clock or 2 o’clock’’ (Tr. 1022). On cross-examina-
tion he positively denied that they inquired ‘‘about some
meeting that was going to happen that day’’ (Tr. 1047).
After reading from his pretrial affidavit, however, De
Varona admitted that about 1:30 p.m. that day the employees
did ask him about ‘‘the meeting with Mr. Tracy.’’ He
claimed that he sent them to the human resources office. (Tr.
1048.) Thus, he did not admit telling the employees that the
meeting was canceled. He did admit that the employees ar-
rived 1-1/2 hours before their 3 p.m. shift for a meeting with
the general manager. I discredit his claim that he sent them
to the human resources office.
After being told the meeting had been canceled, the em-
ployees went toward the kitchen area near the cafeteria.
There, other kitchen employees told them that the meeting
had been canceled, but ‘‘in the ballroom in Room 2, they are
signing contracts and that we should go up there to sign
them.’’ They then went to meeting room 2 in the ballroom
area to sign their second temporary contracts. (Tr. 586.)
Dominguez and Lopez (not Perez) recalled that Ithier
joined them on the way to the ballroom area (Tr. 303, 417–
418, 587, 1548–1549), but Ithier credibly recalled that he ar-
rived at 1:45 and joined them later. Ithier also credibly re-
called seeing two second-shift employees, cafeteria attendant
Itza Soto and pantry chef George (Jorge Hernandez or Jorge
Vazquez, G.C. Exh. 23) and third-shift cook Juan Delgado,
and that they went upstairs together for the meeting. (Tr.
112–115.)
When Dominguez, Lopez, and Perez arrived at meeting
room 2 in the ballroom area (R. Exh. 43), Lopez knocked
on the door and asked whether this was the place where they
were signing the contract. When Palli said yes, the employ-
ees asked for their contracts to sign. Palli said she did not
have their records there and that she would talk to Chef
Maurer, for him to send them in groups of two to sign. She
said she did not know why the meeting had been canceled.
(Tr. 303–304, 417–418, 587.)
When Ithier arrived at meeting room 2 with other kitchen
employees, as Ithier credibly testified, ‘‘We asked her about
signing our contracts and she informed us that she did not
have the contracts, that later we would be informed, that they
were going to call us two by two to sign the contracts’’ (Tr.
114, 117). She said that the meeting had been canceled (Tr.
193–194).
I discredit, as fabrications, Palli’s claims (a) that she did
not see any of the four employees on Thursday, January 28
and (b) that instead, both Lopez and Perez went to the ball-
room the day before to sign the contract. She claimed that
on Wednesday, January 27, ‘‘When I told [them] they were
going to renew the temporary contract, they got mad and
said they were not going to sign that type of contract, that
they wanted to sign the regular contract with all the bene-
fits.’’ (Tr. 1326, 1338–1340, 1546.) She further claimed that
this happened ‘‘around 5:00, between 5:00 and 6:00’’—
which was the same time they were in the protest meeting
in Chef Maurer’s office. (Tr. 1326, 1546.)
I credit Perez’ rebuttal testimony that he and Lopez had
no conversation with Palli on January 27 about signing an-
other contract (Tr. 1547).
I note that the Company misconstrues Palli’s testimony to
mean that Perez and Lopez were still refusing after the pro-
test meeting to sign the second temporary contract. It asserts
in its brief (at 42): ‘‘According to Palli, only Perez and
Lopez went up to sign their contracts on January 27 after
6:00 p.m. and refused to sign the contract. . . . This means
that they went AFTER the meeting at the Chef’s office, tak-
ing into account the time-lapse frame.’’
On leaving the ballroom area on January 28, the four em-
ployees met and discussed the fact that nobody had given
any reason for canceling the meeting. As other employees ar-
rived for the meeting, they informed them that the meeting
had been canceled and that they were told the Company was
‘‘going to call us later to sign the contract.’’ They then went
to the human resources office to ask Director Becerril why
the meeting had been canceled, but she evidently had not re-
turned from the attorney’s office. Dominguez went home for
his day off and the other three employees went to work,
awaiting calls to sign the new contracts. (Tr. 115–116, 304–
305, 418–419, 435, 588.)
The four employees were never called, as promised, to
sign the temporary contract. They were terminated instead.
The Company contends in its brief (at 48):
There is no evidence that when [Dominguez, Ithier,
Lopez, and Perez] went to Personnel [the human re-
sources] office looking for [Human Resources Director
Becerril] on the 28th, they told someone there that they
were there to sign the contract, or else they would have
been allowed to sign.
During the trial the Company took the inconsistent position
(as discussed later) that 9 o’clock the evening before,
Wednesday, January 27, was the deadline for them to sign
or agree to sign the temporary contract.
7. Termination of Jesus Lopez
a. Warning on union organizing
Lopez was the first one of the four employees to be given
the termination letter. This occurred shortly after Chef
Maurer warned him about organizing for the Union during
working time.
After Lopez went on duty at 3 p.m., Thursday, January 28
(the same afternoon that he went to the ballroom area to sign
181SANDS HOTEL & CASINO
the second temporary contract), he began soliciting for the
Union. About 5:30 he showed Carlos Rivera a union card
and became engaged in a name-calling incident with him.
(Tr. 588, 593.)
In the incident, after overhearing Carlos Rivera saying
‘‘everybody from the Union is a son of a bitch,’’ Lopez
called him a ‘‘vende patria,’’ translated as a traitor or a
country seller or betrayer (Tr. 591–592). Regarding Chef
Maurer’s knowledge of the incident, Carlos Rivera testified
(Tr. 1218):
Q. And . . . Chef Maurer knew about that incident
too, didn’t he?
A. Yes.
Q. Did you . . . go to Chef Maurer and tell him
what had happened at that incident?
A. He was in the area during the incident and since
he didn’t understand Spanish, someone said it to him
in English.
Q. Who said it to him in English, Willy [garde man-
ger] William Rivera?
A. Yes, sir.
Q. And Willy Rivera also told Chef Maurer, at that
time, that . . . the problem arose over the fact that
Jesus Lopez had union cards with him, didn’t he?
A. Yes, that’s true. [Emphasis added.]
Chef Maurer (who did not testify) said nothing to Lopez
at the time. About 6 p.m. just before Lopez’ meal break,
however, Maurer called Lopez into his office and asked if
Lopez was promoting the union inside the hotel. Lopez an-
swered yes. Maurer warned him that he could do so only
during breaktime in the employee cafeteria or outside the
hotel. Maurer did not mention the name-calling incident. (Tr.
589–590, 594, 1256.)
On leaving Maurer’s office, Lopez spent the first 10 or 15
minutes of his meal break in the cafeteria, then went across
the street where Ithier was moving his car. There, while still
on their meal break, Lopez introduced Ithier to Union Busi-
ness Agent Ruben Davila, who was handing out union leaf-
lets and authorization cards. (Tr. 202–203, 594, 1568–1569.)
A company witness, cook Caraballo, acknowledged seeing
Lopez and Ithier with Davila across the street from the hotel
and recalled that ‘‘It must have been the day after’’ the Janu-
ary 27 protest meeting (Tr. 1100–1101).
b. The termination
Sometime between 6:30 and 7 o’clock that Thursday
evening, January 28, after Lopez returned from his meal
break, Chef Maurer sent him upstairs to the human resources
office, where Palli had Security Director Rafael Rodriguez
accompany him and Ismael Ithier to General Manager Tra-
cy’s office (Tr. 588, 595–596, 689–690).
I note that Lopez erroneously recalled at the trial that
Maurer sent him instead to the ballroom (Tr. 595, 589). This
error was corrected, however, by the Company’s own evi-
dence, consisting of Lopez’ pretrial statement (given over 2
years before he testified). The statement (R. Exh. 8A, p. 6)
states: ‘‘On Thursday evening, the chef [Maurer] said . . .
to go upstairs to the contract office [the human resources of-
fice],’’ where Palli ‘‘sent a security’’ with Lopez and Ithier
to Tracy’s office.
Security Director Rodriguez claimed that ‘‘if I escorted’’
Lopez and Ithier upstairs to Tracy’s office, ‘‘it wasn’t during
the night’’—without indicating whether he considered the
early evening (6:30 or 7 p.m.) to be ‘‘during the night.’’ In
one answer he claimed, ‘‘I don’t have that incident clear in
my mind.’’ In another answer he testified that ‘‘[Becerril]
and I think it was during the morning’’ and ‘‘I think it was
in the morning.’’ Becerril later claimed it was Friday after-
noon. (Tr. 1147–1148, 1495.) I credit Lopez’ testimony that
it was after his meal break that Thursday evening.
Lopez was sent into Tracy’s office first, while Ithier wait-
ed in another room. There, in Tracy’s absence, Human Re-
sources Director Becerril terminated him. As Lopez credibly
testified, Becerril ‘‘said that based upon what the spokesman
[at the January 27 protest meeting] had said and based upon
the fact that we refused to sign the contract . . . . we are
going to do without your services.’’ He protested: ‘‘I never
refused to sign the contract.’’ (Tr. 597–598, 690; R. Exh. 8A,
p. 2.)
Becerril said that she was very sorry, but it was their (the
Company’s) decision and if he wanted, they would pay him
that night what was owed him. He responded, however, that
‘‘I was a gentleman and that I would finish my work [until]
the end of the 90 days.’’ Becerril then gave him the termi-
nation letter dated January 28 and said she would consider
him if a position as cook arose in the future. He left and re-
turned to his working area. (Tr. 599–600; R. Exh. 8A, pp.
2–3.)
As quoted above, the termination letter refers in both the
first and last paragraphs to the employee’s ‘‘decision’’ not to
sign the new temporary contract. The letter given Lopez
(G.C. Exh. 5), as found, is a copy of the January 29 form
letter, changing the date at the top to January 28 and the ex-
piration date in the last paragraph from January 29 to Feb-
ruary 1 (the date in the sentence ‘‘Contract expires Feb.
1/88,’’ which was inserted in Lopez’ November 1, 1987 tem-
porary contract, R. Exh. 7, after he signed it).
On reaching his working area, Lopez told ‘‘Chef Bob’’
(Sous Chef Robert Roehrich, who did not testify) that he was
not feeling well (‘‘because I had been given a dismissal let-
ter’’) and asked to be excused. As he was signing out, he
saw Sous Chef Harrison Andrews (who did not testify)
standing nearby. ‘‘I told him I was leaving and he signed
something on the sheet.’’ (Tr. 601–602, 690–691.)
I note that the attendance sheet for Lopez on Thursday,
January 28 (G.C. Exh. 23, p. 5), shows the name ‘‘Harrison’’
over the hours from 3 to 6 p.m. (when Lopez took his meal
break). Thus, this documentary evidence appears to support
Lopez’ testimony that the first time he left work early that
week was that Thursday evening, after Becerril gave him the
termination letter.
c. Disputed date
Despite the January 28 date on Lopez’ termination letter,
the Company produced evidence that Becerril terminated him
instead on January 29.
I note that this would still be before Becerril claimed she
had any knowledge of the four employees’ prounion activi-
ties or sympathies. She claimed ‘‘I learned about that . . .
when I was informed that they were in the cafeteria distrib-
uting union cards’’ (Tr. 1539). She was referring to Lopez’
and Perez’ union organizing in the cafeteria during the meal
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
break the next evening, Friday, January 29 (as discussed
later)—following the Company’s Friday afternoon antiunion
‘‘orientation’’ meeting at which her assistant Palli was the
main speaker (Tr. 1341–1344, 1350).
When testifying as a defense witness, Becerril claimed that
she called Lopez, as well as Ithier and Perez, to General
Manager Tracy’s office on Friday afternoon, January 29. She
testified that she told them individually that she regretted
their decision, that ‘‘we decided to let their contracts expire
on their own terms,’’ and if their contracts did not expire
until a later date, they could remain until that date or be paid
for the whole period of time. (Tr. 1495–1497.)
Becerril offered no explanation for dating Lopez’ termi-
nation letter January 28, other than claiming (as quoted
above) that the letters ‘‘were started being drafted on January
28,’’ that two were dated January 28, ‘‘and the other two
were prepared in the morning of January 29.’’ In fact, as
found, the two January 29 letters were the form letters and
the two letters dated January 28 were copies.
I infer that on January 28, after Becerril returned from the
attorney’s office, Chef Maurer informed her about Lopez’ so-
liciting for the Union; that she then had the termination form
letter for Lopez copied, changing the January 29 date to Jan-
uary 28; and that she gave the letter to him a day earlier than
planned, hoping that although he had not been replaced, he
would leave the hotel with pay for the remaining two work-
days of his November 1 temporary contract.
d. Lopez sent home early
Lopez reported to work at 3 p.m. on January 29 and 30
(G.C. Exh. 23, p. 5). At his meal break on January 29, he
solicited on behalf of the Union, as discussed later.
Before meal time on Saturday, January 30, Chef Maurer
(who did not testify) called Lopez to the office and said ‘‘the
management had told him that they did not want me to con-
tinue working there.’’ Lopez signed out at 5 o’clock, but
changed the sign-out time from 5:00 to 11:00 (as the attend-
ance sheet shows, G.C. Exh. 23, p. 5) when Maurer said
‘‘you’re going to get paid the eight hours.’’ Maurer then
gave him a contract-expiration letter. (Tr. 610–616, 692.)
This letter (G.C. Exh. 24; R. Exh. 8A, p. 3) was a typed
form letter, in Spanish, signed by Becerril. Lopez’ name and
the date January 29 were in handwriting. The translation
reads (G.C. Exh. 24A):
Dear Mr.
As you are aware, your employment contract with us
expires today.
We take advantage of the occasion to thank you for
the services rendered while you worked for us.
This contract-expiration form letter was obviously pre-
pared for Chef Maurer to give to any of the four terminated
employees who continued to work until the expiration of
their temporary contracts. As found later, it was the same
form letter that Maurer gave Dominguez earlier that after-
noon when telling him his services were being terminated.
8. Termination of Ismael Ithier
Human Resources Director Becerril terminated Ithier on
Thursday, January 28, about 10 minutes after terminating
Lopez, following their 6 p.m. meal break.
Ithier recalled that on January 28 after starting to work, he
was sent by Chef Maurer to the personnel (human resources)
office, where Assistant Director Palli said they were going
to General Manager Tracy’s office. There, Lopez entered the
office first and Security Director Rodriguez had Ithier wait
in the next office about 10 minutes. (Tr. 120–122.)
When Ithier entered Tracy’s office, Becerril said ‘‘she re-
gretted the decision I had taken of not signing the new con-
tract and that if I wanted, I could leave at that time or if I
wanted, I could finish my contract.’’ Ithier responded that
‘‘at no time . . . had I refused to sign the contract because
I needed my job and I needed my benefits, mostly that of
the medical insurance because I was the head of a family.’’
She did not answer, but gave him the termination letter. (Tr.
122–124.)
Becerril testified that ‘‘Ithier did ask if I would let him at
that moment sign a contract and I said no,’’ for two reasons
(Tr. 1496, 1544). First, she claimed that she refused ‘‘be-
cause I had already made commitments with a person to sub-
stitute for him’’—although Ithier’s replacement, Hubert
Erbacher, did not file an application (showing that he was
unemployed) until 4 days later, February 1 (G.C. Exh. 58B;
Tr. 1521–1522). Second, ‘‘because he said that he would
sign a contract but he kept on saying that he needed [the]
medical plan and other benefits’’ and ‘‘I really understood
that he wasn’t asking for a temporary contract but for a reg-
ular one’’—although the evidence is clear that the Company
had decided to replace all four employees and had refused
to permit them to sign the temporary contract earlier that
day.
I note that Ithier’s termination letter (G.C. Exh. 4) was not
one of the two letters dated January 28. (One January 28 let-
ter was the copy addressed to Lopez, as discussed above, and
the other was the copy addressed to Dominguez, who had
met with Palli about 2 o’clock that afternoon but who did
not report to work on the 3 o’clock shift because that was
his day off.) Ithier’s letter was the original form letter dated
January 29.
I infer that Becerril had planned to terminate both Lopez
and Dominguez that day, but that she decided to terminate
Ithier in Dominguez’ absence, using the form letter dated the
next day. Ithier’s temporary contract (R. Exh. 1), as filled in
by the time of trial, showed that it expired January 29. It had
in handwriting the maximum of ‘‘90’’ days, the sentence
‘‘Contract ends Jan. 29, 1988,’’ and the signing date of No-
vember 1, 1987. (It also showed the ‘‘Date of Employment’’
to be ‘‘Oct 20/87,’’ which was the beginning of Ithier’s
training period.) In the absence of a replacement, however,
he was permitted to work through January 30, 1 day beyond
the stated 90-day expiration date (G.C. Exh. 23, p. 5).
9. Termination of Francisco Perez
a. Identified with Union
By Friday afternoon, January 29, Chef Maurer was aware
that Becerril was using General Manager Tracy’s office rath-
er than her own office, where Maurer had sent both Lopez
and Ithier the day before to be terminated. About 3 p.m. he
sent Perez directly to Tracy’s office, accompanied by a su-
pervisor, Sous Chef Ricardo Morales, who happened to be a
good friend of Perez (Tr. 432–434, 535–537).
183SANDS HOTEL & CASINO
It is undisputed, as Perez credibly testified, that on the
way to Tracy’s office, Morales (who did not testify) told
Perez that ‘‘I was a very good employee but that I had iden-
tified myself with the union and that he was sorry about that’’
(emphasis added).
The Company, after stating in its brief (at 66) that ‘‘we
neither deny nor admit’’ this conversation, argues that this
‘‘innocuous’’ statement, if made by ‘‘this officer,’’ is not
‘‘enough to be considered an admission of motive.’’ I dis-
agree and find that the statement tends to reveal not only the
Company’s discriminatory motivation for terminating the
four employees, but also to reveal the widespread knowledge
of the motivation among the supervisors.
b. The termination
In Tracy’s office, as Perez credibly testified, he asked
Becerril why she did not attend the 2 p.m. meeting the day
before and told her ‘‘we wanted to find you’’ but never saw
her. ‘‘She . . . told me that she was at a meeting with Attor-
ney Vega.’’ (Tr. 435.)
Becerril then told Perez ‘‘that since I had refused to sign
the three months’ contract, she was issuing me a dismissal
slip. And I told her . . . I was never offered a contract nor
the opportunity to sign it.’’ Becerril stated ‘‘that that was the
decision that they had made’’ and gave him his termination
letter. She said he could continue working, and he worked
that, his last shift. (Tr. 436, 438.)
Between 2 and 3 p.m. the next day, January 30, Perez and
Lopez returned to the hotel for their vacation pay (Tr. 617).
Perez asked Becerril ‘‘to make me another letter’’ because
the termination letter ‘‘should not say that I did not want to
sign the contract’’; that meant that he was not entitled to un-
employment compensation. As the Company admits in its
brief (at 79), Becerril refused to change the letter, stating
‘‘that that was what had been determined [by the manage-
ment].’’ (Tr. 451–452, 478.)
10. Termination of Jose Dominguez
When Dominguez reported to work Saturday afternoon,
January 30, he saw posters in the kitchen reading: ‘‘Do not
sign union cards, the union is the fool of fools’’ (Tr. 315).
About 2:50 p.m., 10 minutes before the starting time, Chef
Maurer (who did not testify) handed him a note and said
‘‘that my services were being terminated by the hotel,’’ with-
out giving any reason. Dominguez did not ‘‘read it fully,’’
but saw that ‘‘it was my termination form.’’ (Tr. 316, 361.)
I find that the note was the same contract-expiration form
letter (stating ‘‘As you are aware, your employment contract
with us expires today,’’ G.C. Exh. 24) that Maurer gave
Lopez later that day.
Dominguez immediately went to Becerril’s office and
asked her ‘‘what’s the meaning of this?’’ Realizing that
Maurer had given Dominguez the form letter in error,
Becerril tore up the letter. Then, confirming that Dominguez
was terminated, Becerril said ‘‘I was supposed to work until
the 7th of February.’’ (Tr. 317, 319–320, 362.)
Being already discharged, effective February 7,
Dominguez decided not to work the remaining week of his
temporary contract. He told Becerril that he could not work
until February 7, ‘‘there was too much confusion, I was tense
already.’’ He complained that management acted in very bad
faith toward the employees and the four of them. ‘‘And
when she asked me again if I could work until the 7th of
February . . . it was just like obliging me to.’’ He credibly
testified that he felt obliged to resign (if he was not going
to work the remaining week), so he said ‘‘just give me the
resignation papers, I’ll . . . resign right now.’’ (Tr. 320–321,
363–364.)
Dominguez filled out and signed the resignation form
(G.C. Exh. 17). Becerril countersigned it and then (Tr. 366)
gave him his termination letter (G.C. Exh. 16), dated January
28 (2 days earlier, as discussed above). I note that on the
first day of trial (September 28, 1988), the General Counsel
erroneously stipulated that the letter Chef Maurer gave
Dominguez was the termination letter (G.C. Exh. 2, a xerox
copy of G.C. Exh. 16), instead of the contract-expiration
form letter (similar to the letter Maurer gave Lopez later that
afternoon). By the time Dominguez testified at the resumed
trial on June 25, 1990, he had found the original of the ter-
mination letter (that Becerril had given him, G.C. Exh. 16),
which Dominguez had retained (Tr. 369–370).
I discredit Becerril’s claim that on Saturday morning, Jan-
uary 30, Dominguez came to her office ‘‘to resign.’’ Accord-
ing to her, Dominguez said ‘‘we had treated them badly’’
and was ‘‘really bad-mouthing the company.’’ She said he
did not have to leave until February 7 (confirming his termi-
nation) and handed him his termination letter (G.C. Exh. 16),
but he said he wanted to resign. She gave him a resignation
form, he filled it out and handed it to her, and left. (Tr.
1497–1498, 1544.) (I also discredit Palli’s claim that
Dominguez came in that morning at 9:30 to resign, Tr.
1352–1357.)
Thus, Becerril’s (and Palli’s) version is that this happened
in the morning, omitting any reference to Chef Maurer’s par-
ticipation in the termination (when Dominguez reported to
work that afternoon). The Company offers no explanation for
its stipulation on the first day of trial that the termination let-
ter (G.C. Exh. 2, a xerox copy) was given to Dominguez on
January 30 by Maurer (Tr. 25). As found, when Maurer told
Dominguez that afternoon that his services were being termi-
nated, Maurer in fact gave him the contract-expiration form
letter (similar to the one Maurer later gave Lopez, G.C. Exh.
24), which Becerril tore up when he asked her about it.
I reject the Company’s contention in its brief (at 77–78)
that Dominguez ‘‘does not have a right to the remedies in-
voked’’ because he ‘‘resigned his position voluntarily.’’ Hav-
ing already been discharged (effective February 7), he did
not resign his position. He merely signed the resignation
form to decline working after being discharged.
11. Discriminatory motivation revealed
On Saturday afternoon, after terminating Dominguez,
Becerril met informally in the hallway with Dominguez,
Lopez, and Perez and made a statement linking their termi-
nation to their participation in the January 27 protest meet-
ing.
Becerril admitted talking to the three employees that Sat-
urday. She testified that ‘‘I’m not saying that it is untrue that
I sat with [Perez] on a sofa’’ and further that this was near
the oceanside garden area, when she was talking first with
Perez and Lopez, and Dominguez ‘‘joined us’’ (Tr. 1501).
Dominguez credibly testified that after Becerril gave him
the termination letter that Saturday afternoon, she ‘‘left the
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
office and I left maybe five minutes later.’’ He saw Becerril,
Lopez, and Perez and joined them. The employees were
complaining about ‘‘how poor they had acted with us’’ and
Becerril ‘‘explained that if we had stopped operations . . .
for the [protest] meeting . . . we could do it again’’ (empha-
sis added). The employees told her ‘‘it was no stoppage’’ of
work, that management had called the meeting to discuss
their status. (Tr. 324–326.)
Lopez similarly recalled that Becerril said that ‘‘based
upon what had been said at the Chef’s office [in the protest
meeting] . . . . the management . . . wanted to foresee that
that situation would not happen again’’ (Tr. 619, emphasis
added). In his pretrial affidavit (R. Exh. 8A, p. 3), given
March 1 (about a month later), Lopez recalled that in the
conversation with Dominguez, Perez, and himself, Becerril
stated that they ‘‘had decided to do without our services in
order to prevent another situation like that one’’ (emphasis
added.)
By the time Perez testified at the trial about the conversa-
tion (on June 26, 1990), he recalled that Becerril went further
and told the employees they had been fired because they
were ‘‘speakers for the union and that we were subversive
persons’’ (Tr. 485). I discredit this version, noting that in a
pretrial statement given about a month after the incident (R.
Exh. 5A, p. 9), Perez recalled that what Becerril said was
similar to what Dominguez and Lopez testified, that ‘‘she
had to foresee that what they did once they could do again’’
(emphasis added).
Contrary to Becerril’s denial (Tr. 1501), I find that she at
least implied that the four employees were terminated be-
cause of their protected concerted activity in making the pro-
tests at the January 28 meeting on behalf of themselves and
other kitchen employees. I therefore find that her statement
(linking the employees’ termination to their participation in
the protest meeting) was coercive and violated Section
8(a)(1) of the Act.
I also find that Becerril’s statement revealed a discrimina-
tory motivation for the termination of the four employees:
that a reason for their termination was their protected con-
certed activity.
In this connection, I note that at the trial the Company
took a position that implies its concern about the four em-
ployees’ challenge at the protest meeting. As quoted above,
the Company argued (Tr. 845) that ‘‘What this case is about
basically’’ is that 4 employees out of 600 or 700 hired at the
hotel opening ‘‘challenged the use of these temporary con-
tracts.’’
12. Company defenses
a. No 2 p.m. meeting scheduled
The Company acknowledged in its brief (at 45) that ‘‘If
a meeting had been scheduled [for 2 p.m., January 28], the
employees would have a defense for not signing the contract
on the 27th.’’ The reason is obvious.
The earliest expiration date of the first temporary contracts
was Friday, January 29 (the 90th day after the November 1,
1987 hotel opening). The kitchen employees were told
Wednesday afternoon, January 27, that most of them were
required to sign a second temporary contract. If the four em-
ployees (who were representing themselves and the other
employees) were then told in the protest meeting that they
could discuss this requirement with General Manager Tracy
in a 2 p.m. meeting on January 28 (a day before the earliest
expiration date), they indeed ‘‘would have a defense for not
signing’’ the contract on January 27. As the General Counsel
argues in his brief (at 56), they ‘‘had no reason to believe
that they would not be afforded an opportunity to sign a con-
tract after the meeting scheduled the next day.’’
But the Company asserts its own defense for its actions.
Despite the evidence (a) that Acting General Manager Luis
Morales (who did not testify) arranged with Becerril in the
Wednesday protest meeting to schedule the 2 p.m. meeting
with Tracy, (b) that Sous Chef Andrews posted two large no-
tices of the scheduled meeting to all kitchen employees, and
(c) that employees admittedly began arriving around 1:30
Thursday afternoon for a meeting with General Manager
Tracy, the Company contends in its brief (at 2): ‘‘No meet-
ing was canceled because no meeting had been announced or
agreed to.’’
I reject this defense as frivolous.
Instead of producing Sous Chef Andrews as a witness, the
Company relies on the claim by Carlos Rivera (whose credi-
bility is discussed later) that ‘‘I don’t remember’’ Andrews’
posting a notice (Tr. 1245).
Food and Beverage Manager Cruz claimed, ‘‘I don’t re-
member [Luis] Morales being there at all’’ (Tr. 934). (Both
Becerril and De Varona admitted that Morales was present
at the protest meeting, Tr. 1009, 1462). Cruz also claimed
that he did not remember ‘‘that a meeting at 2 o’clock the
next day was mentioned’’ and (incredibly) that ‘‘what I’m
getting at is it’s the first time [while he was testifying at the
trial] I’ve heard it mentioned by anybody’’ (Tr. 938).
After Cruz testified, Food and Beverage Assistant Manager
De Varona (as discussed above) positively denied that when
he saw the four employees at the hotel about 1:30 the next
afternoon (to attend the 2 p.m. meeting, as found), they in-
quired ‘‘about some meeting that was going to happen that
day.’’ But after reading from his pretrial affidavit, he admit-
ted that they asked about ‘‘the meeting with Mr. Tracy,’’ al-
though he did not admit telling them the 2 p.m. meeting had
been canceled.
Becerril, testifying after this admission by De Varona, ad-
mitted that she did mention letting the employees talk to
Tracy the next day. She claimed (Tr. 1477):
Well, I do remember that at some time they . . . asked
to see Mr. Tracy and I told them that they could go to
my office the next day in order to see if they could see
Mr. Tracy, he was out of the country at that moment,
but as I understood he was coming back the next day,
so I thought that it was a good moment . . . to let them
give or air their feelings to Mr. Tracy concerning why
they were refusing to sign the contracts.
Thus, according to this version of what was said about a
meeting with Tracy, she told the employees they could come
to her office the next day (when she was away, conferring
with Company Attorney Vega, Tr. 435).
In view of the overwhelming evidence to the contrary and
her demeanor on the stand, I discredit Becerril’s claim that
she merely told the employees that they could come to her
office the next day ‘‘to see if they could see Mr. Tracy,’’
rather than scheduled the 2 p.m. meeting with him.
185SANDS HOTEL & CASINO
I find, however, that even if the Company’s contention
(that there was no 2 p.m. meeting scheduled) were not frivo-
lous and Becerril instead invited the employees to her office
for a meeting with Tracy, that invitation would have been an
implicit authorization for the employees to delay signing the
temporary contract in the meantime.
b. Purported deadline for signing contract
The Company took the unequivocal position at the trial
that Wednesday, January 27, was the deadline for the kitchen
employees to sign the second temporary contract (Tr. 635–
636).
As the trial progressed, however, it became obvious that
there was not such a deadline. The evidence shows that at
least 11 kitchen employees signed the contract on various
dates after January 27. Luis Rodriguez signed January 29
(G.C. Exh. 47). Rafael Caraballo, John Morales, and Italo
Sibilia (three of the eight employees who attended the Janu-
ary 27 protest meeting) and also Cecilio Aponte, Milton
Arrocho, Robert Clifford, Dionisio Rosado, and Victor
Sanchez signed January 30 (G.C. Exhs. 46, 48–51; R. Exh.
22; Tr. 1387–1389). Carlos Rivera (who also attended the
protest meeting) and Itza Soto (who went with Ithier to sign
the contract on January 28, when Palli said they would be
called later) signed February 1 (R. Exh. 24; Tr. 1385).
Human Resources Assistant Director Palli gave various ex-
planations for these late signers. She claimed at one point
that ‘‘the truth exact is that almost all [our kitchen employ-
ees] signed on the 27th, but we didn’t put the 27th on [the
contracts]. We put the same date they were supposed to start
the new contract.’’ (Tr. 1384, 1392.) She later admitted,
however, that some of the kitchen employees did sign the
contract on January 28, 29, 30, and February 1 (Tr. 1394–
1395). She also claimed that some of the employees signed
after January 27 because they were too busy to sign and had
told either her or Chef Maurer that they would sign later (Tr.
1327–1328, 1335–1336, 1382–1391). This is an unlikely ex-
planation for the employees who signed 3 and 5 days later.
Food and Beverage Director Cruz, when questioned about
what the employees were told in the January 27 protest meet-
ing, revealed no knowledge of their being told of a deadline
that day for signing the new contract (Tr. 885–887, 900). He
testified that he had been instructed (by management) that
when the employees’ contracts expired later that week (‘‘the
latest would be the last day in January, depending on when
they were hired three months out’’), they were to have
signed a contract ‘‘or to have the situation resolved one way
or the other’’ before reporting to work the next day (Tr.
890–891). Yet the Company, relying on this same cited testi-
mony by Cruz, contends in its brief (at 44) that at that meet-
ing, ‘‘the employees were clearly told that the contracts had
to be signed that day.’’ This contention appears to be at least
a misunderstanding of Cruz’ testimony.
I note that at the close of the trial (Tr. 1584) the Company
shifted its position and, in effect, admitted there was no Jan-
uary 27 deadline for the four employees to sign the new tem-
porary contract. It then took the position (in the words of its
counsel) that ‘‘had they said they would sign a temporary
contract at any point in time, I am sure they would have re-
ceived it.’’
I find that the position taken by the Company earlier at
the trial, that January 27 was the deadline for the kitchen
employees to sign the contract, was erroneous.
c. Not aware of union activity
(1) Only one guard in kitchen
The Company contends in its brief (at 47) that about 10
p.m. on Wednesday, January 27, when Cruz ‘‘made the deci-
sion to replace immediately’’ the four employees and told
Becerril, ‘‘Let’s hire some people in,’’ neither he nor
Becerril ‘‘had any knowledge of the employees’ sym-
pathies.’’ Its theory is that because the employees did not go
to the Union until Thursday morning, Cruz and Becerril
could not be aware of their union activity that Wednesday
evening.
Yet earlier in the same brief (at 6) the Company, citing
10 references to the transcript, acknowledges that ‘‘After the
[protest] meeting, Perez suggested that they should seek
counsel from a union in view of their belief that promises
were being violated’’ (emphasis added).
It was in defense of this evidence and the evidence that
the Company for the first time posted guards in the kitchen
that evening, that the Company made a major effort at the
trial to dispel any inference that Cruz’ decision flowed from
his knowledge of this planned union activity.
A part of this company effort was to dispute the evidence
(a) that Security Shift Supervisor Santos posted two guards
in the kitchen during much of the evening and (b) that one
of the guards was standing nearby and listening to the con-
versation when the four employees discussed going to the
Union the next day.
Ithier had testified that one guard stood about 6 or 7 feet
from his work station, observing him (Tr. 100), and that
when he, Dominguez, Lopez, and Perez agreed to go to the
Union to seek advice, as suggested by Perez, ‘‘we were talk-
ing in a normal voice . . . not hiding’’ (Tr. 104–105). Ithier
recalled that this guard and the other guard in the kitchen
had walkie-talkie radios, and he knew them as security em-
ployees in the hotel (Tr. 98). After about 2 hours, both
guards ‘‘moved around the entire kitchen’’ (Tr. 106).
Dominguez had testified that one of the guards was ‘‘in
front of us’’ and the other was ‘‘maybe 10 feet ahead’’ (Tr.
301). He recalled seeing the guards there ‘‘I would say for
[something] like an hour’’ (Tr. 302). Perez had testified that
one of the two guards was ‘‘on the other side of the
counter’’ and ‘‘really paying attention to what we were say-
ing’’ (Tr. 408–409). He recalled their remaining in the kitch-
en ‘‘Almost to the end of our shift’’ (Tr. 410).
The Company states in its brief (at 82) that the Company
‘‘does not deny the presence of a [single] security guard in
the kitchen’’ (emphasis added)—even though its own wit-
ness, cook Carlos Rivera, testified there was ‘‘More than
one’’ that evening, ‘‘I saw two’’ (Tr. 1229). (I discredit
Rivera’s claim that even though ‘‘It is possible’’ that the
guards were listening to what the employees were talking
about, the guards were ‘‘Never’’ close to where the employ-
ees were working, Tr. 1232–1233.)
At the trial the Company did not call Security Shift Super-
visor Santos (who assigned the guards) or either of the two
guards to testify and did not produce Santos’ shift report (Tr.
1130, 1143–1144), which undoubtedly would have shown the
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
times involved and the details of what happened. Instead, it
introduced the testimony of Palli and Security Director
Rafael Rodriguez.
The Company’s witness Carlos Rivera testified on cross-
examination that the two guards were walking around the
kitchen an estimated 3 or 4 hours (Tr. 1234). Yet both Palli
and Rodriguez claimed that only one guard was assigned and
that he was assigned there as a stationary guard in error, be-
cause Supervisor Santos misunderstood her instructions
merely to add the kitchen to this roving guard’s rounds.
Rodriguez further claimed that the error was corrected in
about 10 or 15 minutes. (Tr. 777–780, 1119–1135, 1332–
1334; G.C. Exh. 35.) These claims are not persuasive.
Despite the Company’s efforts to prove otherwise I find,
as indicated above, (a) that two security guards were posted
in the kitchen that evening for an hour or two, or longer (the
same evening the Company decided to replace the four em-
ployees) and (b) that one of the guards, standing nearby and
listening to the employees’ conversation, overheard the four
employees when they discussed going to the Union the next
day.
There remains the question of whether one of the guards
used his two-way radio to notify the security supervisor
about what he had overheard, alerting the Company to the
planned union activity.
(2) No surveillance intended
(a) Purported preventive measure
Security Director Rodriguez testified that about 7:30
Wednesday evening, January 27, he received instructions
from Acting General Manager Luis Morales to have the
kitchen area well guarded as a preventive measure because
of a ‘‘heated up environment’’ there. Rodriguez then in-
structed Security Shift Supervisor Santos to have a guard ‘‘to
be alert’’ to ‘‘anything unusual that would happen’’ in the
kitchen area. (Tr. 1119, 1125–1126.)
The Company presented two witnesses evidently to prove
that an incident causing a ‘‘heated up environment’’ occurred
that evening in the kitchen after the protest meeting. The first
was cook Carlos Rivera (who spoke against the Union at the
Company’s antiunion ‘‘orientation’’ meeting, Tr. 1238).
While on direct examination he claimed that the incident in
which Lopez ‘‘insulted’’ him, calling him a ‘‘traitor, a coun-
try betrayer and a Judas,’’ occurred that Wednesday evening
after the protest meeting (Tr. 1191–1192).
On cross-examination, however, Rivera conceded details
that belied his claim that the incident occurred that evening.
He finally agreed that it occurred when Lopez talked to him
about signing a union card the next day (Tr. 1215–1217). He
next gave contrary testimony that would support the Com-
pany’s position, again claiming that the incident occurred
‘‘the day of the meeting.’’ This time he conceded that the
incident occurred the day Lopez went home early. After
being shown the attendance sheet, he then agreed that the in-
cident could have happened January 28, ‘‘but I don’t remem-
ber the date.’’ He claimed that the two guards were there to
protect the hotel property from ‘‘any criminal intent.’’ (Tr.
1220–1221, 1227, 1229–1230.) By his demeanor, he ap-
peared more interested in supporting the Company’s cause
than giving accurate testimony.
I discredit Rivera’s claim that the incident occurred
Wednesday evening. I also discredit his claim that Lopez
‘‘threatened that he would wait for me outside the Hotel’’
(Tr. 1192). In addition to other claims previously discredited,
I discredit his claims (Tr. 1188), (a) that he told Chef Maurer
before the protest meeting that he was too busy and would
sign the temporary contract later (as found, he signed it 5
days later, February 1), (b) that he did not agree with the
protest (even though the Company admits that he attended
the protest meeting), and (c) that the employees went into
Chef Maurer’s office without permission, in support of the
Company’s unfounded contention in its brief (at 32) that the
employees who attended the protest meeting ‘‘had abandoned
their post and refused to work in violation of the Rules of
Discipline.’’
The other witness the Company presented to prove that the
Lopez–Carlos Rivera incident occurred on the evening of the
protest meeting was garde manger William Rivera. He
claimed on direct examination that the reason Lopez called
Carlos Rivera a country betrayer that evening was that Lopez
felt ‘‘very annoyed at Carlos because he thought that he was
not supporting the group’’ (Tr. 1252–1253). On cross-exam-
ination, however, William Rivera conceded that the incident
occurred the same day he signed his regular contract on Jan-
uary 28 and the same day (also January 28) that Lopez did
not work his entire shift (Tr. 1264, 1269). Yet, on redirect
examination, he again claimed the incident occurred ‘‘The
same day of the protest’’ (Tr. 1270). I discredit these claims.
I note that earlier in the trial, Palli admitted that this inci-
dent occurred January 28, when ‘‘Jesus Lopez was harassing
one of the cooks, Carlos Rivera’’ (Tr. 782–783). I also note
that another company witness, cook Rafael Caraballo (who
became a supervisor about February 13) claimed that the in-
cident occurred about 10 or 15 minutes before the protest
meeting. Caraballo claimed that Lopez wanted Carlos Rivera
‘‘to go into the [Chef’s] office and [Carlos] did not want
to,’’ that Lopez ‘‘told the people at the work place to stop
working,’’ and that ‘‘Carlos did not want to stop working.’’
(Tr. 1069, 1073, 1090.) I find that these claims were clearly
fabricated.
I note that Caraballo further claimed that some of the em-
ployees ‘‘left their workplace and went to the Chef’s office’’
(implying that they were not invited to the meeting) and that
‘‘I did not want to go in, so I remained outside’’ (although
the Company admits in its brief that Caraballo attended the
meeting). I discredit these claims and also Caraballo’s claim
that Lopez said ‘‘he was going to beat [Carlos Rivera] up.’’
(Tr. 1066, 1071.)
The Company contends in its brief (at 49–50) that
all the witnesses clearly testified that Lopez’ attack on
Rivera took place on the same day of the meeting at
the Chef’s office, which everybody placed on January
27. Lopez alone says it happened on the 28th. . . .
. . . .
Carlos Rivera, William Rivera and Caraballo estab-
lished that right after the meeting at the Chef’s Office,
an incident provoked by Lopez took place at the kitch-
en due to the fact that the latter felt that Carlos had not
supported them by leaving the office.
187SANDS HOTEL & CASINO
This contention also appears to be at least a misunder-
standing of the testimony.
The Company also contends in its brief (at 82) that ‘‘The
Security [Was] Sent by Sands to the Kitchen Fearing Labor
Disruption as a Protective Measure to Secure Its Property
and Personnel’’ and (at 83) ‘‘as a preventive measure due
to the heated situation that arose in the kitchen.’’ Thus, the
Company emphasizes the necessity of security in the kitchen
that evening, but admits the presence there of only a single
stationary guard, who Security Director Rodriguez claimed
was there only 10 or 15 minutes.
Because the evidence clearly shows that the Lopez–Carlos
Rivera incident occurred the next day when Lopez was solic-
iting for the Union—not on January 27 as the Company con-
tends in its brief (at 51)—I reject the Company’s claim that
it assigned security to the kitchen on the evening of the Janu-
ary 27 protest meeting as a ‘‘protective’’ or ‘‘preventive’’
measure to secure property and personnel.
Based on the Company’s own evidence that it completely
ignores, however, I find merit to its contention that ‘‘The Se-
curity [Was] Sent by Sands to the Kitchen Fearing Labor
Disruption’’ (a possible strike).
(b) ‘‘Smells like a strike’’
On Wednesday evening, January 27, when Lopez took his
meal break after the protest meeting, Security Shift Super-
visor Santos ‘‘sat at my table.’’ It is undisputed, as Lopez
credibly testified when questioned on cross-examination
about his pretrial statement (R. Exh. 8A, p. 6), he told Santos
‘‘this does not smell right and this smells like a strike [em-
phasis added]’’ (Tr. 666–667).
By the time he returned to work, Lopez found two guards
stationed in the kitchen. Santos came by and he asked her,
‘‘Since when do you station guards in the kitchen?’’ She an-
swered, ‘‘You said things you should not have said.’’ After
this conversation the four employees ‘‘decided to go to the
Union.’’ (R. Exh. 8A, p. 6.)
Although this evidence is not mentioned in the Company’s
brief, I infer that this talk of a possible strike was the reason
Acting General Manager Morales (‘‘Fearing Labor Disrup-
tion’’) immediately contacted Security Director Rodriguez
who, about 7:30 that evening, instructed that Supervisor
Santos have the security ‘‘to be alert’’ to ‘‘anything unusual
that would happen’’ in the kitchen area (Tr. 1126).
Because of the timing of the sudden decision to replace
the four employees that evening (about 10 o’clock) and the
circumstances, I also infer that the Company was alerted to
the employees’ discussion, in front of one of the assigned se-
curity guards, about going to a union the next day.
Part of the circumstances is what Palli inadvertently re-
vealed.
When testifying about Supervisor Santos’ purported mis-
take in assigning a stationary guard in the kitchen, Palli
claimed that she went to the kitchen about 7 or 7:15 that
evening, ‘‘saw the security officer standing’’ there, and
called Becerril, who said she would call Security Director
Rodriguez to have the guard resume his rounds as a roving
guard. If this time were accurate, this would have happened
15 or 30 minutes before 7:30 when Rodriguez testified that
he instructed Santos to send security to the kitchen.
But three separate times Palli indicated that this time may
not be accurate. After first claiming that this was ‘‘Around
7:00 or 7:15 p.m.’’ (Tr. 1328), she later testified that it was
‘‘around 10:00 . . . I mean, around 7:00 or 7:15’’ (Tr. 1330,
emphasis added). A second time, when asked what time this
was, Palli answered: ‘‘I went to the kitchen around 10:00 to
10:15,’’ before again claiming it was ‘‘7:00 or 7:15’’ (Tr.
1334, emphasis added). The third time, after she claimed
again it was ‘‘Around 7:00 o’clock,’’ the following tran-
spired (Tr. 1337):
JUDGE LADWIG: . . . . What time was this?
WITNESS: This was in the kitchen around 10:00 or
10:15
JUDGE LADWIG: 7:00 or 7:15?
WITNESS: I mean, 7:00, 7:15.
MR. HOPKINS: Your Honor, I would like the witness’
answer of 10:00 or 10:15 to stand on the record. . . .
I have reason to believe that really was the correct
time. [Emphasis added.]
I agree with Attorney Hopkins for the General Counsel for
a number of reasons. First, I find that Palli was not trying
to testify candidly when she claimed she saw only one guard
in the kitchen. If she had gone to the kitchen around 7 or
7:15 p.m., there would have been either no stationary guards
there at that time (before 7:30 p.m.) or two guards.
As the Company’s representative at the counsel table and
a key witness, she had an obvious motive for trying to estab-
lish, untruthfully I find, that the purported mistake in assign-
ing a stationary guard there was corrected early in the
evening, before the guard would have an opportunity to over-
hear the talk about going to the Union. She would also have
a motive not to reveal that she saw a guard (actually two
guards) there at 10 or 10:15. Such an admission that a guard
had remained in the kitchen over 2 hours would not only
make it more likely that he overheard the talk about going
to the Union, but would reveal a possible link between what
was overheard and the sudden decision about 10 o’clock that
evening to replace the four employees. Yet, even though she
obviously had planned to testify 7 or 7:15, three times she
testified what I infer was the true time, 10 or 10:15 p.m.
Another part of the circumstances is Security Director
Rodriguez’ actions. In the ‘‘Security Incident Summary’’ he
prepared the next day, Rodriguez falsely referred to only one
security guard and omitted how long the guard remained in
the kitchen. The summary read (G.C. Exh. 35, p. 2):
At 7:30 P.M., Mr. Luis Morales instructed Mr. Rafael
Rodriguez, Director of Security, to assign a S/O [secu-
rity officer] to conduct rounds at the Kitchen area. Due
to problems we were expecting on that area. Apparently
the instructions were misunderstood by the S/O as-
signed to this job, instead he stood still at the Kitchen
area. He was instructed again in relation with his job.
He was supposed to conduct rounds at intervals thru the
Kitchen area.
Then at the trial he claimed that this purported misunder-
standing was corrected after 10 or 15 minutes, contrary to
other witnesses who credibly testified there were two guards
in the kitchen much of the evening.
I infer that the Company, by failing to present at the trial
either Security Shift Supervisor Santos or one of the two
guards who had direct knowledge of what happened in the
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
kitchen, by failing to produce Santos’ shift report of the inci-
dent, and by introducing this discredited testimony, was
seeking to conceal the fact that the Company was alerted that
evening to the four employees’ plans to go to the Union.
I therefore find that when the Company decided about 10
p.m. on January 27 to replace the four employees, it was
aware of their planned union activity.
d. Four employees never fired
The Company contends in its brief (at 2) that ‘‘The em-
ployees were never fired. They refused to sign another defi-
nite term or temporary contract; thus, their work contract ex-
pired. They unilaterally tried to force management into giv-
ing them a regular job, which management had not offered.’’
Having found that the Company refused to permit the four
employees to sign the temporary contract after the Union ad-
vised them to do so, I reject this contention.
e. Immediate replacements required
The Company contends in its brief (at 3, 47):
It was the peak season and the kitchen is crucial, so
that replacements were needed and sought imme-
diately. . . .
. . . .
Upon learning from [Becerril] that the employees
had not signed [by the 9 p.m. deadline, January 27],
Cruz knew that Sands needed to get four replacements.
Because the employees had vehemently refused to sign
their contracts [in the protest meeting] at the Chef’s of-
fice, both Cruz and [Becerril] honestly felt that the em-
ployees would not sign the contracts offered. Cruz
made the decision to replace immediately that same
night about 10:00 p.m. He told [Becerril] at dinner:
‘‘Let’s hire some people in.’’ . . .
The Company took into account that two of the em-
ployees who refused to sign [presumably Dominguez
and Perez] were highly skilled and that replacing them
was going to take more time because candidates with
special qualifications would have to be found. Finding
replacements immediately was essential because it was
the busy season, Sands was operating at full capacity;
and among its guests, there were visitors from the par-
ent company.
To the contrary, the evidence clearly shows there was no
9 p.m. deadline, and Acting General Manager Morales had
arranged with Becerril at the protest meeting earlier that
evening for the employees to meet with General Manager
Tracy in a scheduled meeting at 2 p.m. the next day to dis-
cuss the requirement of a second temporary contract. Such
a meeting would not have been scheduled if ‘‘the employees
had vehemently refused to sign their contracts at the Chef’s
office’’ and if the Company was planning to discharge the
four employees unless they signed a temporary contract by
9 o’clock that evening.
I therefore reject the Company’s contention that it believed
that evening that replacements were required.
f. Other defenses
I reject the Company’s contention in its brief (at 93) that
‘‘All of General Counsel’s witnesses merit ZERO credi-
bility.’’
I also reject the Company’s many other clearly unfounded
contentions in its lengthy (120-page, legal-size) brief.
13. Concluding findings
Before the mention of a possible strike, management rep-
resentatives met with the leading protesters Dominguez,
Ithier, Lopez, and Perez about 1-1/2 hours in the late after-
noon and early evening, January 27, in an effort to justify
the requirement of a second temporary contract. To resolve
the protests, Acting General Manager Morales arranged for
a meeting to be scheduled at 2 o’clock the following after-
noon with General Manager Tracy.
Immediately after Lopez, at his meal break following the
protest meeting, told Security Shift Supervisor Santos that
‘‘this does not smell right and this smells like a strike,’’ Mo-
rales contacted Security Director Rodriguez. About 7:30 p.m.
the Company posted two security guards in the kitchen ‘‘to
be alert’’ to ‘‘anything unusual that would happen’’ there.
While posted there, one of the guards overheard the four em-
ployees discuss going to the Union the next day.
About 10 o’clock that evening, after the Company became
aware of the four employees’ planned union activity (as
found), the Company decided to replace all four of them and
canceled the scheduled meeting with Tracy.
The following afternoon, after the Union advised the four
employees to sign the temporary contract, they and other
kitchen employees went to the hotel early to attend the 2
p.m. meeting. The Company informed the employees that the
meeting had been canceled and refused the four employees’
offers to sign the temporary contract. Instead, the Company
gave each of them a termination form letter, expressing re-
grets for their ‘‘decision’’ not to sign the temporary contract.
The Company revealed a discriminatory motivation when
a supervisor, Sous Chef Richardo Morales, linked Perez’ dis-
charge to his identifying himself with the Union and when
Human Resources Director Becerril justified the discharge to
Dominguez, Lopez, and Perez by saying they had stopped
the operations for the protest meeting and they ‘‘could do it
again.’’ The protests were clearly protected concerted activ-
ity.
I find that the General Counsel has made a strong prima
facie showing sufficient to support the inference that the four
employees’ leading role in the January 27 protest meeting
and their plans to go to the Union the next day were moti-
vating factors in the Company’s decision to replace and dis-
charge them and to refuse to permit them to sign renewal
contracts. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Having rejected the Company’s many defenses, I find that
the Company has failed to carry its burden to demonstrate
that it would have terminated the four employees in the ab-
sence of their union and protected concerted activity.
I therefore find that the Company unlawfully discharged
Jose Dominguez, Ismael Ithier, Jesus Lopez, and Francisco
Perez for engaging in union and protected concerted activity,
violating Section 8(a)(1) and (3) of the Act.
189SANDS HOTEL & CASINO
C. Unlawful Surveillance
As found above, on the evening after the January 27 pro-
test meeting, immediately following cook Jesus Lopez’ state-
ment to Security Shift Supervisor Santos that ‘‘this does not
smell right and this smells like a strike,’’ the Company (at
Acting General Manager Morales’ direction) posted two se-
curity guards in the kitchen for much of the evening ‘‘to be
alert’’ to ‘‘anything unusual that would happen.’’
The Company contends in its brief (at 82) that fearing
labor disruption (presumably strike action in protest to the
continued temporary employment), it sent the security to the
kitchen as a protective measure to secure its property and
personnel. Yet it admits only one guard being posted, for
only 10 or 15 minutes—contrary to the testimony of its wit-
ness Carlos Rivera that two guards were there for 3 or 4
hours (Tr. 1229, 1234).
There is no evidence of any unlawful or unprotected con-
duct in the kitchen that evening, requiring the posting of two
stationary guards to protect property or personnel. I find that
the Company posted the two guards to observe and overhear
the conversations of the four employees and any other kitch-
en employees who might be discussing strike action or other
lawful response to the Company’s requirement of continued
temporary employment.
I therefore find, as alleged in the complaint, that on Janu-
ary 27 the Company engaged in unlawful surveillance of its
employees’ protected concerted activities in violation of Sec-
tion 8(a)(1) of the Act.
I also find that the Company engaged in unlawful surveil-
lance of employees on payday, Friday, January 29, as the
employees were on their way to and from the bank in a
shopping plaza diagonally across the street from the hotel. At
the corner in front of the plaza, about 100 feet from and
within full view of anyone standing on the sidewalk at the
hotel’s employee entrance, were employees Dominguez,
Lopez, and Perez, along with two union representatives, so-
licited signatures on union cards. (Tr. 305–311, 425–428,
604–606, 1443, 1569–1574.)
There is credible evidence that there was one or two secu-
rity guards on the sidewalk near the employee entrance
(where a guard is not ordinarily posted) and a security guard
with binoculars at the window of an upstairs room in the
hotel, watching the solicitation. Some of the employees
would not approach the union solicitors, or would not sign
a card there, because they were being watched from the
hotel. (Tr. 312–314, 357–361, 431–432; R. Exh. 8A, p. 7.)
Besides denying that the guards were engaging in this con-
duct, the Company argues in its brief (at 109) that ‘‘manage-
ment may observe union activity that is public, especially if
conducted on company premises, without violating the Act
unless the officials involved do something out of the ordi-
nary. This union activity was not conducted on or near the
company premises.
I find that the obvious purpose of the Company’s assign-
ing the security guards to engage in this surveillance, where
the guards would be observed by employees approaching the
union solicitors, was to coerce the employees, interfering
with their talking with the solicitors. I therefore find that the
Company further violated Section 8(a)(1) of the Act.
D. Overly Broad No-Solicitation Rule
I reject the General Counsel’s contention that Human Re-
sources Assistant Director Palli (on January 29) promulgated
and enforced an overly broad no-solicitation rule by prohib-
iting union campaigning in the employee cafeteria.
Employee Perez credibly testified that Palli entered the
cafeteria and told employee Lopez to leave because she had
been told that his breaktime had expired. Lopez stated that
was not true, he was still on his breaktime, but Perez told
him, to avoid any problems, to go back to his workplace.
Perez admitted continuing to talk for the Union after Lopez
left. (Tr. 420–421.)
Although Lopez recalled that Palli told him ‘‘You cannot
talk about the union here’’ before saying ‘‘you have exceed-
ed your break time by ten minutes’’ (Tr. 687), I find that
Palli was not promulgating an overly broad rule, whether or
not she was mistaken in believing he had exceeded his break
period.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Ismael Ithier and Jesus
Lopez on January 28, Francisco Perez on January 29, and
Jose Dominguez on January 30 because of their union and
other protected concerted activities, the Company has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the Act.
2. By engaging in surveillance of its employees’ union and
other protected concerted activities, the Company violated
Section 8(a)(1).
3. The Company did not promulgate and enforce an overly
broad no-solicitation rule.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged four
employees (who were already permanent employees under
Puerto Rican law, or who would have become permanent
employees after 90 days if not discharged, Tr. 1476, with
any doubt resolved against the wrongdoer, not the employee
victims), it must offer them reinstatement as permanent em-
ployees and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
Any dispute over whether the four employees were perma-
nent employees when discharged (entitling them to wages
and benefits as permanent employees from date of discharge)
or would not have become permanent until the expiration of
the second temporary contract, can be resolved in the com-
pliance stage of this proceeding.
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, S.J.P.R., Inc. d/b/a Sands Hotel and Ca-
sino, San Juan, Puerto Rico, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting Union De Trabajadores de la
Industria Gastronomica de Puerto Rico, Local 610, Hotel
Employees and Restaurant Employees International Union,
AFL–CIO or any other union.
(b) Discharging or otherwise discriminating against any
employee for engaging in protected concerted activity.
(c) Engaging in surveillance of its employees’ union and
other protected concerted activities.
(d) Informing employees they were discharged for pro-
tected concerted activities.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jose Dominguez, Ismael Ithier, Jesus Lopez, and
Francisco Perez immediate and full reinstatement as perma-
nent employees to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Remove from its files any reference to the unlawful
termination and notify the employees in writing that this has
been done and that the terminations will not be used against
them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Isla Verde, Carolina, Puerto Rico,
copies of the attached notice marked ‘‘Appendix.’’3 Copies
of the notice, on forms provided by the Regional Director for
Region 24, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.