Stanford Hotel

National Labor Relations Board - Board Decisions

Apr 29, 2005

344 N.L.R.B. 558 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 69
558
Stanford New York, LLC d/b/a Stanford Hotel and
Joong Hyun Park. Case 2–CA–35910
April 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On October 7, 2004, Administrative Law Judge Steven
Davis issued the attached decision. The General Counsel
and the Respondent filed exceptions and supporting
briefs, and the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified.2
Respondent employed Joong Hyun Park as a mainte-
nance engineer from 1998 until his discharge on October
31, 2003.3 In September 1999, the Board conducted an
election in a unit that included all of the Respondent’s
service and maintenance employees. Park was an eligible
voter in the election and appeared on the Excelsior list.
The parties executed an initial collective-bargaining
agreement on October 28, to be effective November 1.
In the morning of October 31, General Manager Kevin
Kim asked Park why he wanted to become a member of
the Union, advised him not to do so, and told Park that
the union contract did not cover supervisors. Kim told
Park that there would be a meeting later that day with
Union Agent Leo Lanci to determine whether Park
would be included in the unit. Kim contended that Park
was a supervisor and thus not eligible for union member-
ship. Park maintained that he was not a supervisor and
wanted union representation. Kim angrily directed Park
to tell Lanci that he was a supervisor.
That afternoon, Lanci and Park met in the employee
lunchroom located in the basement of the hotel. Kim
entered the room and sat next to Lanci. No other em-
ployees were present and Park closed the lunchroom
door to further ensure privacy. During the ensuing dis-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Because many of the Respondent’s employees speak mainly Span-
ish or Korean, we shall modify the recommended Order to provide that
the Respondent post the attached notice to employees in Spanish, Ko-
rean, and English.
3
All dates are in 2003 unless otherwise indicated.
cussion, Kim continued to insist that Park was a supervi-
sor. Kim threatened Park in Korean that if he did not tell
Lanci that he was a supervisor, he would be fired. Park
called Kim a liar and a bitch and pointed his finger at
him. Kim rose to leave, stating that he could not continue
with the meeting. Park loudly called Kim a “f—ing son
of a bitch” in English. An employee who had entered the
breakroom overheard this remark. Kim again threatened
Park with discharge, stating in Korean that he could fire
Park at any time because he was a supervisor.
We find, in agreement with the judge, that Park en-
gaged in protected concerted activity when he met with
Union Agent Lanci and Kim and asserted his right to
union representation and inclusion in the collective-
bargaining unit.4 We also recognize, ho Twever, that the
“fact that an activity is concerted . . . does not necessarily
mean that an employee can engage in the activity with
impunity.” NLRB v. City Disposal Systems, 465 U.S.
822, 837 (1984). When an employee is discharged for
conduct that is part of the res gestae of protected con-
certed activities, the pertinent question is whether the
conduct is sufficiently egregious to remove it from the
protection of the Act. Aluminum Co. of America, 338
NLRB 21 (2002). TIn making this determination, the
Board examines the following factors: (1) the place of
the discussion; (2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and (4)
whether the outburst was, in any way, provoked by an
employer’s unfair labor practice. Atlantic Steel Co., 245
NLRB 814, 816 (1979).
Addressing the first factor, we find that the location of
Park’s conduct weighs in favor of finding that Park re-
tained the protection of the Act. Park’s outburst occurred
away from his normal working area in an employee
lunchroom in the basement of the building. When the
meeting began, no other employees were present, and
when Kim entered the room, Park closed the door to
maintain privacy. The relatively secluded room and
Park’s efforts to maintain the privacy of the conversation
minimized the potential that Park’s outburst would im-
pair Kim’s ability to maintain discipline in the work-
place. We recognize that, despite Park’s efforts, one em-
ployee entered the room towards the end of the conversa-
tion and overheard Park’s intemperate remarks to Kim.
However, we find that, on balance, this factor of location
weighs in favor of protection even though the outburst
inadvertently was overheard by one employee.

4 We adopt the judge’s finding that Park was an employee and not a
statutory supervisor. We therefore find it unnecessary to rely on the
judge’s finding that even if Park were found to be a supervisor, and
thus properly not included in the unit, his efforts to join the Union
would still be protected.
STANFORD HOTEL 559
With regard to the second factor, the subject matter of
Park’s remarks also weighs in favor of protection. Park’s
outburst concerned his desire to be included in the col-
lective-bargaining unit and his disagreement with Kim
over his eligibility. In addition, Park’s belief that he was
not a supervisor was reasonable as evidenced by the fact
that he was included on the Excelsior list and he voted in
the election without challenge.5 Because Park’s conduct
occurred in the context of his attempted assertion of a
fundamental right under the Act, we find that this factor
weighs strongly in favor of a finding that Park’s remarks
were protected.
As to the third factor, Park’s outburst was profane and
offensive, which weighs against the remarks retaining the
protection of the Act. Park cursed Kim, calling him a
“f—ing son of a bitch” while angrily pointing his finger
at him. The record does not show that employees regu-
larly used foul language at the hotel or in conversations
with General Manager Kim. Nor is there credited evi-
dence that Kim used profanity during the meeting.6 In-
deed, both Park and Kim agreed that cursing is inappro-
priate in the hotel. We therefore find that this factor
weighs against a finding that Park’s outburst was pro-
tected.
As for the fourth factor, Park’s outburst was a direct
and temporally immediate response to Kim’s repeated
insistence that Park declare himself ineligible for union
representation, accompanied by threats of discharge.7
While Kim may not have used profanity, he did unlaw-
fully threaten to discharge Park, and that threat triggered
Park’s response. Board precedent establishes that an em-

5 We find unpersuasive the Respondent’s assertion in its brief that
Park’s inclusion on the Excelsior list should not be considered proba-
tive of his status because it “may only reflect the common attempt of an
employer trying to improve its odds of victory in a representation elec-
tion.”
6 Park testified that Kim did use profanity, but the judge did not
credit that testimony.
7 In finding that Park’s conduct did not lose the protection of the
Act, the judge relied on Felix Industries, 331 NLRB 144 (2000). The
Court of Appeals for the District of Columbia Circuit denied enforce-
ment of the Board’s Order in Felix Industries and remanded the case to
the Board. 251 F.3d 1051 (D.C. Cir. 2001). On remand, the Board
found that employee Yonta’s use of profanity during a grievance-
related telephone conversation with a supervisor did not outweigh the
other factors favoring the protections accorded Yonta under the Act.
339 NLRB 195 (2003), enfd. per curiam (D.C. Cir. 2004) (No. 03–
1221, 03–1239) (unpublished). Chairman Battista dissented because, in
his view, Yonta’s outburst constituted outrageous conduct and out-
weighed the other Atlantic Steel factors, thereby causing Yonta to lose
the Act’s protection. Id. at 197. While Member Schaumber did not
participate in Felix Industries, he agrees with Chairman Battista’s dis-
sent. In any event, Felix Industries is distinguishable. Here, Park’s
conduct occurred in a face-to-face meeting with management, with a
union agent present, regarding a fundamental right under the Act, and
in direct response to Kim’s unlawful threats of discharge.
ployer generally may not provoke an employee through
unlawful conduct to a point where the employee commits
an act of insubordination and then rely on that insubordi-
nation to discipline the employee. Vought Corp., 273
NLRB 1290, 1295 fn. 31 (1984), enfd. 788 F.2d 1378
(8th Cir. 1986).8 Because Kim provoked Park’s outburst
by his unlawful conduct, this factor weighs in favor of
protection.
We do not condone insubordination and, in other cir-
cumstances, Park’s outburst might be unprotected. In the
circumstance of this case, however, we find that Park
was engaged in protected concerted activity in expressing
his desire to be included in the collective bargaining unit,
and he did not lose the protection of the Act because of
his intemperate response while protesting Kim’s unlaw-
ful conduct. Thus, the factors of place, subject matter,
and provocation favor protection, while only the factor of
the nature of Park’s conduct does not. Accordingly, we
find that Park did not lose the protection of the Act by his
conduct.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Stanford
New York, LLC d/b/a Stanford Hotel, New York, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”8 Copies of the No-
tice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s author-

8 TChairman Battista does not agree with this proposition as stated.
In his view, there can be circumstances where the employer’s unlawful
conduct is relatively minor, and the employee’s responsive conduct is
egregious. In such circumstances, the response may be unprotected.T
9
In finding that Park’s remarks were not so inflammatory as to lose
the protection of the Act, the judge relied on Winston-Salem Journal,
341 NLRB 124 (2004). There, the Board found that an employee did
not lose the protection of the Act when he loudly called his supervisor a
“bastard red-neck son-of-a-bitch” about an hour after an initial conver-
sation in which he accused his supervisor of being racist and showing
favoritism towards another member of the work crew. The Fourth Cir-
cuit, however, recently denied enforcement of the Board’s order in that
case. Media General Operations, Inc. v. NLRB, 394 F.3d. 207 (4th Cir.
2005). In concluding that the employee’s outburst was unprotected, the
court held that it was merely an expression of personal animosity to-
wards the supervisor, and noted that it was not provoked by any action
on the supervisor’s part. Here, Park was engaged in protected activity
when he met with Union agent Lanci and sought inclusion in the collec-
tive bargaining unit. Furthermore, Park’s outburst was an immediate,
spontaneous response to Kim’s threat to discharge Park for attempting
to become a member of the Union. The factors of concern to the
Fourth Circuit are not present here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD560
ized representative, shall be posted by Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. This notice shall be posted in
Korean, Spanish, and English. Reasonable steps shall be
taken by Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings,
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by Respondent at any time since October 31, 2003.”
Gregory B. Davis, Esq., for the General Counsel.
Howard R. Flaxman, Esq. (Fox Rothschild LLP), of Philadel-
phia, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge and a first amended charge filed on November 3, 2003,
and February 23, 2004, respectively, by Joong Hyun Park, An
Individual, a complaint was issued on March 31, 2004 against
Stanford New York, LLC d/b/a Stanford Hotel (Respondent).
The complaint alleges that following employee Park’s asser-
tion of his right to be included in the collective-bargaining unit
of the Respondent’s employees represented by Local 758, Hotel
& Allied Services Union, SEIU, AFL–CIO (Union), the Re-
spondent (a) threatened to discharge Park if he did not agree to
be excluded from the collective-bargaining unit and (b) dis-
charged Park.1
The Respondent denied the material allegations of the com-
plaint and asserted that Park is a statutory supervisor who is not
entitled to the protection of the Act. On June 22, 2004, a hear-
ing was held before me in New York, New York.2P
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 Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, having its office
and principal place of business at 43 West 32 PndP Street, New
York, New York, has been engaged in the business of operating
a hotel, and providing lodging and related service to the public.
Annually, the Respondent derives gross revenues in excess of

1 The complaint also alleged that the Respondent promised Park
more favorable working conditions if he would agree to be excluded
from the bargaining unit. However, in his post-trial brief, counsel for
the General Counsel moved to withdraw that allegation, and I hereby
grant that motion.
2 The Respondent’s unopposed post-hearing motion to correct the
transcript is hereby granted, and is received in evidence as Respon-
dent’s Exhibit 6.
$500,000, and purchases and receives at its facility in New
York City, goods and materials valued in excess of $5,000
directly from suppliers located outside New York State. The
Respondent 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. The Facts
1. Park’s work duties
The Respondent hotel is a 12-story facility containing 121
guest rooms, a lobby, basement, restaurant, bakery, and bar. It
employs 37 employees in various departments, the majority
being in housekeeping, and two employees in the maintenance
department.
Park became employed in1998 and worked in the mainte-
nance department. He worked Monday through Saturday, from
8:30 a.m. to 5:30 p.m. He was called an engineer. His duties
included repairing toilets, bed frames, telephone wires, window
curtain rods, pictures, shower heads, soap dishes, heating cov-
ers, video machines, ice machines, chairs, air conditioner con-
trols, television remote control devices, and chains on doors.
He also replaced light bulbs, unclogged leaks in pipes and
drains, changed lock cylinders and made keys, painted, did
demolition work, checked the batteries in exit lights, fixed vac-
uums, changed toilet parts, changed closet guides, checked
windows, took out the garbage, cleaned wallpaper, replaced
hair dryers, checked lamps, opened safety deposit boxes,
changed a telephone, checked noise in heaters, changed a radio
alarm, and changed an outlet. Park orders supplies for the main-
tenance department from vendors, but he first must obtain au-
thorization from manager Kim to do so.
Park received his work assignments by wireless radio from
the front desk reception personnel, the office, the reservation
department, and from the supervisor of housekeeping. He also
reviewed the logbook for problems which occurred the evening
before. Park was provided with a cell phone on which he was
called after hours to return to the hotel in an emergency, such as
a leaking pipe. Only one other person, general manager Kinan
(Kevin) Kim had a cell phone.3
During the period at issue here, October, 2003, two mainte-
nance employees were employed, Park, and Myong Roi Choi.4
Park recommended his hire as follows: Owner Joong Gab
Kwon asked Park to recommend someone for the maintenance
department. Park recommended Choi, telling Kwon that he was
reliable. An advertisement was placed in a Korean newspaper
and other applicants were interviewed, apparently by Kwon,
but Choi was hired. Park was asked by Kwon whether he knew
any of the other applicants. Park denied knowing them. Choi
was the only person Park recommended. Choi worked Monday
through Saturday, from 9:30 a.m. to 6:30 p.m.
Manager Kim stated that inasmuch as the hotel was 80 years
old, two maintenance employees were needed. The daily main-

3 All references hereafter to Kim will be to general manager Kinan
Kim unless otherwise stated.
4
Choi replaced Kun Jea Moon.
STANFORD HOTEL 561
tenance repair reports completed by Park and Choi demonstrate
that they both did similar work, and sometimes worked together
on the projects set forth above. Park signed a section of the
report bearing the notation “approved by maintenance.” Prior to
October, 2002, the form said only “maintenance.” However,
after that time, on the order of owner Kwon, the form was
changed to read “chief maintenance.” Regardless of the change
on the form, Park’s job duties and wages remained the same.
Park was more skilled in pipe repair and electrical work than
Choi, but Choi was a better painter. Park’s pay was $17.60 per
hour whereas Choi’s was about $12.55. Park stated that he did
not assign work to Choi since Choi knew what work he had to
do. Occasionally, Park received an order and told Choi that
they could work together on the project. Manager Kim stated
that he believed that Park assigned work to Choi. Kim also
stated that he and Park supervised the work of outside contrac-
tors who renovated the hotel’s rooms.
Park and Choi wore a uniform consisting of dark colored
pants and shirts, and a tie. They wore nameplates which read
“maintenance.” However, after Kim became general manager,
the nameplate was changed to “engineer.” The managers,
named below, wore formal business attire.
Park attended meetings with other department representa-
tives on a weekly or monthly basis. The meetings were chaired
by general manager Kim. Also in attendance were Sonya Song,
front desk reception, Helen Kim, Helen Kang, accounting de-
partment, assistant general manager Nick Lee, Joseph Kim,
personnel department, Amy Park, sales department, Gino Jang,
bar, and Juana Rodriguez, housekeeping department. Occasion-
ally, owner Kwon attended. The meetings consisted of a discus-
sion of each department’s problems and methods of resolving
them. At one meeting, Park reported that water pipes were leak-
ing, causing wet ceilings, and he asked what should be done. At
the next meeting, he was asked if he could repair the pipes.
There was no discussion at the meetings of the hotel’s finances,
marketing or renovations. At the meetings, Park was given
instructions, including an order to repair wallpaper.
A letter dated November 4, 1999 from the general manager
stated that henceforth, all department heads will be required to
attend weekly meetings. The letter was addressed to “all de-
partment heads” and listed the front desk, housekeeping,
“maintenance – Mr. Park,” and the controller. Park denied see-
ing the letter.
Manager Kim testified that meetings of the supervisors of
each department are held on a weekly, monthly, or as needed
basis. The discussions include the problems experienced in
each department, and their possible remedies. He stated that
Park attended the meetings representing the maintenance de-
partment, and denied that Choi was in attendance at any meet-
ing.
2. The collective-bargaining background
In September, 1999, an election was held in a unit which in-
cluded all service and maintenance employees of the Respon-
dent, including maintenance employees, but excluding all su-
pervisors as defined in the Act. Park, and the other maintenance
employee employed at the time, were included by the Respon-
dent in the Excelsior list of eligible voters, and they voted in the
election. In April, 2000, the Union was certified, and a collec-
tive-bargaining agreement was executed on October 28, 2003,
to be effective on November 1, 2003.
3. The events of October 31
a. The morning meeting between Park and Kim
In the morning of October 31, general manager Kim called
Park and asked to meet him at the bar in the hotel. That location
was chosen so that their conversation would be private. Kim
stated that the purpose of the meeting was to speak about Park’s
becoming a member of the Union, and he wanted to speak to
Park as a friend to advise him not to become a Union member.
At the time of the meeting, Kim knew that the Union contract
would be effective the following day. He inconsistently testi-
fied that he did not know that he would meet with Union agent
Leo Lanci on October 31, but then testified that he knew that he
would be meeting with Lanci after work that day.
Prior to that day, Kim had spoken to Lanci about Park’s job
title and his supervisory status. Kim knew that he would be
meeting with Lanci about that matter, but denied knowing that
Park was to be included in the bargaining unit. This contrasts
with Kim’s testimony that he knew that the Union contract
mentioned Park’s job title.5
Kim told Park that his wage under the Union contract would
be the same as his current wage rate. He admittedly asked Park
why he wanted to be in the Union, adding that the union con-
tract did not cover supervisors. Park answered that he voted for
the Union and he would receive many benefits as a Union
member. Kim testified that he told Park that he compared the
Respondent’s benefits to the Union’s benefits. Kim told Park
that there would be a meeting that day to determine whether he
would be a Union member or not.
Kim testified that he did not care about Park’s job title, or
whether Park was a member of the Union or not, but urged him
to tell the truth during their meeting with Lanci. The truth, ac-
cording to Kim, was that Park was a supervisor and not eligible
for Union membership. Park replied that he was not a supervi-
sor.
Park testified that Kim told him that the Respondent had to
pay an additional $100,000 because the housekeeping employ-
ees were included in the unit, and that owner Kwon did not like
that.6 Kim asked him to “reconsider” becoming a member of
the Union. Kim told him that, as a Union member, his pay
would be less than what he was currently earning since he had
to pay union dues, adding that the Respondent’s health plan
was superior to the Union’s. Park then told Kim that personnel
manager Joseph Kim prevented him from meeting with Union
agents when they visited the hotel previously. Kim then told
Park that since he was a supervisor he could not become a
member of the Union. Park replied that when he voted in the
election he was not a supervisor. Kim then angrily directed him
to tell the Union agent that he was a supervisor. Park refused,
saying that his Union membership should be no concern of the
hotel.

5 The contract states that it covers the maintenance employees.
6 There were 23 housekeeping employees, including the housekeep-
ing supervisors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD562
b. The afternoon meeting Between Park, Kim and Laci
1. Park’s version of the meeting
Later that day, Park met with Union agent Lanci in the
basement lunchroom. The room, containing a television, tables
and lockers, was used by employees to eat their lunch and for
their breaks. It is used exclusively by employees of the hotel.
During Park’s conversation with Lanci, Kim entered, and sat
next to Lanci. Park closed the door when Kim entered. They
discussed Park’s supervisory status. Lanci asked Park if he was
a supervisor. Park said, “no.” Kim then asked Park in the Ko-
rean language, “you are a supervisor, aren’t you.” Park again
denied being a supervisor. Kim, in Korean, said that he ordered
merchandise, and Park again denied that status. Kim asked Park
to retrieve the day’s maintenance report which he did. Park
showed Lanci the jobs that were listed on the form as proof that
he was not a supervisor. Kim noted that Park signed the reports
as chief of maintenance, and that he also participated in meet-
ings, and also ordered merchandise for the maintenance de-
partment. Kim told Lanci that Park is a supervisor and could
not become a Union member. He told Park in Korean that if he
did not tell Lanci that he was a supervisor, he would be fired.
Park stated that during their conversation, Lanci spoke in
English and Park answered him in English, but that Kim inter-
rupted their conversation by speaking to Lanci in English and
to Park in Korean. Park “begged” Kim not to interrupt his con-
versation with Lanci, and to leave.
Park testified that he told Kim, in Korean, that he was a liar.
He quoted Kim as saying, as he was leaving, that he could fire
Park at any time because he is a supervisor, and called Park a
“mother fucker.” Park denied cursing Kim during the meeting.
After Kim left, Park told Lanci that he may be fired that day.
Lanci did not reply.
That evening, Kim called Park on his cell phone and told
him that he was fired effective immediately. He was sent the
following letter, signed by Kim: “You are terminated as an
employee of the Hotel Stanford as of October 31, 2003 for
gross improprieties in your conduct with hotel management.”
2. Kim’s version of the meeting
Kim testified that an employee told him that Lanci was in the
lunchroom and that he wanted to meet with Kim. At the meet-
ing, he heard Park attempt to convince Lanci that he was not a
supervisor and wanted to be included in the unit. Kim told
Lanci that he did not care what Park’s job title was, or whether
he wanted to be a Union member or not. He told Lanci, how-
ever, that Park must tell the truth to Lanci.
Kim told Lanci that Park was a supervisor and gave the fol-
lowing examples: (a) he attended supervisory meetings (b) he
had a higher salary than Choi (c) only he and Kim had cell
phones (d) he submitted daily maintenance reports and (e) he
signing the reports as the chief of maintenance.
Kim testified that Park angrily interrupted his presentation,
and then, nearly standing, pointed at him with his finger about
one foot from Kim’s face, and said in Korean that Kim was a
liar, a bitch, was now Park’s enemy, and was worse than per-
sonnel director Joseph Kim.
Kim told Lanci that he (Kim) could no longer participate in
the meeting because of Park’s interruption, and was leaving the
room when Park loudly called him a “fucking son of a bitch” in
English. Kim noticed that housekeeper Rosa Leiva entered the
room. He continued to speak for about one minute, and then
left. Kim later told Lanci to report the incident to the Union
president. Kim, testifying that he was shocked and embarrassed
by Park’s cursing at him, reported the incident to the owner of
the hotel, telling him that Park must be discharged because he
could not have in his employ a worker who does not respect
him. That was the first time he had been cursed by an em-
ployee. The owner agreed, and Park was terminated. Kim and
Park agreed that cursing is inappropriate in the hotel.
Kim denied saying that Park could be fired, and denied curs-
ing Park. Kim said that the only time he spoke in Korean during
the meeting was when he asked Park to get the daily mainte-
nance report.
Housekeeper Leiva testified that she entered the lunchroom
briefly on October 31 to obtain some water, and remained about
3 minutes. She saw Park sitting, and then observed him stand,
banging the table with two hands and angrily, in a loud voice in
English, call Kim a son of a bitch, and motherfucker. She saw
Lanci tell Park to relax and take it easy. She did not hear Kim
say anything.
Leiva stated that two other workers were outside the room
and could hear Park’s comments. She then left the room while
the meeting was still in progress. Leiva also testified that, in the
past, when Park was directed by housekeeping supervisor Juana
Rodriguez to check a damaged item, he always used the word
“fucking” in replying to Rodriguez.
Park denied that Leiva entered the room during this meeting.
I cannot credit his denial. Leiva was a neutral witness who
testified credibly about what she saw and heard.
Analysis and Discussion
I. THE SUPERVISORY STATUS OF PARK
The burden of proving supervisory status rests on the party,
here the Respondent, asserting that such status exists. Supervi-
sory status must be established by a preponderance of the evi-
dence.
Section 2(11) of the Act provides:
The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.
The above statutory provision is to be read in the disjunctive.
If the person possesses any of the authority set forth above, and
uses independent judgment in its exercise, that individual is a
statutory supervisor.
The only indicia of supervisory authority that it may argua-
bly be claimed that Park possessed is the authority to assign and
responsibly direct co-worker Choi, and his recommendation of
the hire of Choi.
Park and Choi did similar maintenance work, each some-
times performing work in areas that they were more skilled in.
STANFORD HOTEL 563
Park credibly denied assigning work to Choi. Manager Kim’s
vague statement that he believed that Park assigned work to
Choi is unsupported by any credible evidence that he made any
assignments. The only evidence of an assignment is Park’s
testimony that when he received a work order he told Choi that
they could work together on the project. Park credibly testified
that he did not assign work to Choi since Choi knew what work
he had to do. The maintenance repair reports establish that they
worked together on various jobs. At most, the evidence may
suggest that Park, on that one occasion, made a routine assign-
ment of a common painting job to himself and Choi. The mak-
ing of routine assignments without the use of independent
judgment in the assignment does not confer supervisory author-
ity. Volair Contractors, 341 NLRB 678, 680 (2004).
Park did recommend Choi for hire, but owner Kwon appar-
ently conducted his own search for employees by placing an
advertisement in a newspaper and interviewing other appli-
cants. The Board has held that interviewing applicants for hire,
screening them and recommending them for hire was not evi-
dence of effective recommendations of hire, since the depart-
ment head chose the applicant who was ultimately hired. Wake
Electric Membership Corp., 338 NLRB 298 (2002).
I accordingly find that the evidence does not support a find-
ing that Park assigned Choi to any work or that he effectively
recommended the hire of Choi.
The fact that Park’s salary was $5 per hour more than Choi’s
is not evidence, in itself of supervisory status. The difference in
salary could be explained by Park’s five-year seniority over
Choi, and the fact that he had greater responsibilities, for ex-
ample, he was required to respond to emergency calls after
work hours. In the absence of primary indicia as enumerated in
Section 2(11) of the Act, secondary indicia, such as higher pay
than other employees, job titles, and attendance at management
meetings, are insufficient to establish supervisory status. Volair
Contractors, above, 341 NLRB 678, 679 fn. 8; DMI Distribu-
tion of Delaware, 334 NLRB 409, 418 (2001); Aardvark Post,
331 NLRB 320, 321 (2000); Carlisle Engineered Products, 330
NLRB 1359, 1361 (2000). Here, as set forth above, there is
absolutely no evidence that Park possessed any of the enumer-
ated statutory authority.
The Respondent alleges that Park possessed certain manage-
rial responsibilities which establish his supervisory status.
Thus, it asserts that only he and manager Kim carried a cell
phone. However, Park was called on his phone only to answer
emergency calls after work hours. Rather than establish super-
visory status, this demonstrates that he simply continued to
perform maintenance work on an as-needed basis. Park could
not order supplies on his own, but he had to obtain the authori-
zation of manager Kim to do so.
The fact that Park was referred to as the “engineer” and
signed repair reports indicating that he approved the repairs as
“chief maintenance,” does not support a finding that Park was a
statutory supervisor. The reports were simply a listing of jobs
done and who did them. In fact, Choi completed the forms also.
In addition, the form originally said “maintenance,” later it was
changed to “approved by maintenance,” and then “approved by
chief of maintenance.” These later changes by the Respondent’s
owner did not confer any more supervisory authority than Park
possessed before the changes. His duties remained the same
before and after the changes. “It is well established that rank-
and-file employees cannot be transformed into supervisors
merely by being invested with that title; rather, an individual’s
actual powers, duties and responsibilities control.” Carlisle
Engineered Products, above, at 1360.
Similarly, Park’s attendance at manager’s meetings proves
nothing more than he attended such meetings. In attendance
were other department representatives. It is apparent that since
he was the senior member of the maintenance department, he
would attend such meetings. According to Park’s credited tes-
timony, there was a discussion of problems in each department.
Park’s report of a water leak was presented and he was asked if
he could fix it. The mere fact that Park attended the meetings
with other department representatives does not establish super-
visory status. Aardvark Post, above.
The evidence establishes that Park was a maintenance em-
ployee performing routine maintenance work in the hotel. The
numerous jobs he completed, set forth above, consisted of re-
pair and replacement of broken items. That the Respondent
believed that Park was not a statutory supervisor is clear in its
inclusion of Park in the Excelsior list. Park’s duties remained
the same before and after the election.
I accordingly find and conclude that the Respondent has not
met its burden of proving that Park is a statutory supervisor.
II. THE THREAT TO DISCHARGE AND THE DISCHARGE
Park engaged in protected, concerted activity at the meetings
on October 31 by seeking union representation and arguing that
he should be included in the collective-bargaining unit. Section
7 of the Act states that employees have the right to join unions,
and even by acting alone in this regard, Park engaged in activi-
ties protected by the Act. NLRB v. City Disposal Systems, Inc.,
465 U.S. 822, 831 (1984). Even if it is found that Park was not
properly included in the unit because he was a statutory super-
visor, his efforts to join the Union were protected, against
which the Respondent could not lawfully retaliate. Sealy Mat-
tress Co., 262 NLRB 99, 100 (1982).
I find, as testified by Park, that, as alleged in the complaint,
Kim threatened to discharge him if he did not agree to be ex-
cluded from the collective-bargaining unit. As set forth above,
Kim told Park at the afternoon meeting, that if he did not tell
Lanci that he was a supervisor, he would be fired. Kim further
threatened Park that he could fire him at any time because he is
a supervisor. Those two comments had as their purpose an ef-
fort to coerce Park into ceasing his interest in becoming a Un-
ion member. Thus Kim escalated the pressure on Park, begun in
the morning meeting, to require Park to agree to be excluded
from the unit.
I cannot credit Kim’s testimony. He gave contradictory tes-
timony about a matter that was obvious—Park’s union status.
Kim stated that he knew that the Union contract mentioned
Park’s job title, yet incredibly denied knowing that Park was to
be included in the bargaining unit. The admitted purpose of
Kim’s conversation with Park was to find out why he wanted to
become a member of the Union, and to dissuade him from do-
ing so. Clearly, if Kim sought to discourage Park from becom-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD564
ing a Union member, he must have known that he would be
included in the unit.
Further, Kim’s testimony that he did not care whether Park
was a union member or not does not ring true. He cared enough
that he attempted to convince him that he was a supervisor and
ineligible for union membership. In addition, Kim variously
testified that he did not know that he would meet with Lanci on
October 31, but then testified that he knew that he would be
meeting with Lanci after work that day.
I credit Park’s version of the morning meeting. It is undenied
that Kim was concerned about Park’s becoming a member of
the Union. The admitted purpose of the meeting was to advise
him against joining the Union. I cannot believe that Kim simply
wanted to tell Park, as a friend, to reject the Union because he
would receive no benefits from membership therein. The real
reason, as testified by Park, was that Kim was anxious to hold
down the costs of the contract because the Respondent’s owner
was not happy about the increased cost to the hotel of the new
union contract.
Time was of the essence since Kim was scheduled to meet
Union agent Lanci later that day at which the topic of the dis-
cussion would be Park’s job title and supervisory status. Inas-
much as the contract, which included maintenance employees,
was to be effective the day after the meeting, it is obvious that
Kim believed that he had to find some way that day to exclude
Park from membership. Kim chose two courses of action. Ac-
cording to Park’s credited testimony, he first sought to con-
vince Park that he was not eligible for union membership be-
cause he was a supervisor, and that he would not benefit from
union membership. Later, when Park pressed the matter at the
meeting with Lanci, insisting that he was not a supervisor, Kim
threatened Park that if he did not tell Lanci that he was a super-
visor, he would be fired. When that tactic proved unsuccessful,
Kim told Park that he could discharge him at any time because
he is a supervisor.
The threat to discharge Park interfered with his right to seek
Union membership and violated Section 8(a)(1) of the Act.
Where, as here, it is claimed that the Respondent discharged
Park because of his comments to Kim in the course of his pro-
tected activity at the afternoon meeting on October 31, the
question is whether Park lost the protection of the Act by his
remarks. Felix Industries, 331 NLRB 144, 146 (2000). Accord-
ingly, the factors set forth in Atlantic Steel Co., 245 NLRB 814,
816–817 (1970), are applicable to that determination.
Under Atlantic Steel, the Board examines the following fac-
tors in determining whether an employee engaged in protected
activity loses the protection of the Act by opprobrious conduct:
(1) the place of the discussion (2) the subject matter of the dis-
cussion (3) the nature of the employee’s outburst and (4)
whether the outburst was, in any way, provoked by the em-
ployer’s unfair labor practice. I will consider those factors in
relation to Park’s conduct at the meeting with Kim and Lanci.
The discussion took place in the employee lunchroom. At the
start of the discussion, no other employees were present, and
when Kim entered the room, Park closed the door in an effort to
maintain some privacy in their discussion. Although it was not
a work area, it was a place where employees entered, as Leiva
did that day, and as testified by her, Park’s comments could be
heard by other employees outside the room. Accordingly, this
factor weighs against the protection of Park’s comments since
they were overheard by other employees and could reasonably
tend to affect workplace discipline by undermining Kim’s au-
thority. Aluminum Co. of America, 338 NLRB 20, 22 (2002).
The second factor, the subject matter of the discussion,
clearly related to Park’s effort to become a member of the Un-
ion and be included in the bargaining unit. The meeting in-
volved an employee’s most fundamental right under the Act to
join a union. Park had a legitimate belief that he had a right to
union representation. He justifiably believed that he was not a
supervisor, which belief was supported by his inclusion, by the
Respondent, in the Excelsior list. This factor weighs heavily in
favor of protected conduct.
With regard to the third factor, I credit Kim’s version of
Park’s remarks, essentially since they were, in part, corrobo-
rated by neutral witness Leiva. I accordingly find that Park
cursed at Kim and angrily pointed his finger at him. However, I
do not believe that Park’s conduct was so inflammatory as to
lose the protection of the Act. “The Act allows a certain degree
of latitude to employees when engaged in otherwise protected
conduct, even when employees express themselves intemper-
ately.” Winston-Salem Journal, 341 NLRB 124, 126 (2004).
The Board, acknowledging that “tempers may run high in this
emotional field, that the language of the shop is not the lan-
guage of ‘polite society,’ and that tolerance of some deviation
from that which might be the most desirable behavior is re-
quired, has held that offensive, vulgar, defamatory or opprobri-
ous remarks uttered during the course of protected activities
will not remove activities from the Act’s protection unless they
are so flagrant, violent, or extreme as to render the individual
unfit for further service.” Dreis & Krump Mfg., Inc., 221 NLRB
309, 315 (1975). Similar curse words were used by an em-
ployee in Burle Industries, 300 NLRB 498, 504 (1990), where
the Board found that such language did not cause the employee
to lose the protection of the Act. The Board noted that his con-
duct was not violent or so extreme as to render him unfit for
further service. Here, Park did not threaten Kim, and his lan-
guage, although intemperate, was not so extreme as to cause
him to lose the protection of the Act.
Regarding the fourth factor, it is clear that, in the course of
asserting his belief that he was entitled to union representation,
Park was provoked by Kim’s response to his protected remarks,
including the unlawful threat that he would be fired if he did
not tell Lanci that he was a supervisor. Felix Industries, 331
NLRB at 145. Accordingly, Park’s remarks were provoked by
the Respondent’s unfair labor practice.
I accordingly find that this one, spontaneous, isolated, brief
outburst made in the heat of the moment by Park who was un-
derstandably frustrated by Kim’s attempt to deny him union
representation, did not cause him to lose the protection of the
Act. Winston-Salem, above. Park’s discharge, therefore, vio-
lated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. By threatening to discharge Joong Hyun Park if he did not
agree to be excluded from the collective-bargaining unit, the
Respondent has engaged in unfair labor practices affecting
STANFORD HOTEL 565
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By discharging Joong Hyun Park, the Respondent violated
Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7P
ORDER
The Respondent, Stanford New York, LLC d/b/a Stanford
Hotel, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees if they do not agree
to be excluded from the collective-bargaining unit.
(b) Discharging or otherwise discriminating against any em-
ployee for engaging in protected, concerted activities, or sup-
porting Local 758, Hotel & Allied Services Union, SEIU,
AFL–CIO, or any other union.
(c) 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. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Joong Hyun Park full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Joong Hyun Park whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify Joong Hyun Park in writing that
this has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached Notice
marked “Appendix.”8 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where Notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the Notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the Notice to all current employees and
former employees employed by the Respondent at any time
since October 31, 2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
WE WILL NOT threaten to discharge any of you if you do not
agree to be excluded from the collective-bargaining unit.
WE WILL NOT discharge or otherwise discriminate against any
of you for engaging in protected, concerted activities, or sup-
porting Local 758, Hotel & Allied Services Union, SEIU,
AFL–CIO, or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Joong Hyun Park full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Joong Hyun Park whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
WE WILL within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Joong
Hyun Park, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not
be used against him in any way.
STANFORD NEW YORK, LLC D/B/A STANFORD HOTEL