State Plaza HotelDownload PDFNational Labor Relations Board - Administrative Judge OpinionsMay 19, 200405-CA-031346 (N.L.R.B. May. 19, 2004) Copy Citation UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES STATE PLAZA, INC., A WHOLLY OWNED SUBSIDIARY OF RB ASSOCIATES, INC., D/B/A STATE PLAZA HOTEL and Case 5 CA 31346 HOTEL AND RESTAURANT EMPLOYEES UNION, LOCAL 25, AFL-CIO Stan P. Simpson, Esq., for the General Counsel. Jonathan W. Greenbaum and Gina Janerio Lisher, Esqs., of Washington, D.C., for the Respondent. Devki K. Virk, Esq., of Washington, D.C., for the Charging Party. Decision Statement of the Case David L. Evans, Administrative Law Judge. This case under the National Labor Relations Act (the Act) was tried before me in Washington, D.C., on February 18-19, 2004. On July 16, 2003, Hotel and Restaurant Employees Union, Local 25, AFL-CIO (the Union), filed the charge in Case 5 CA 31346, contending that State Plaza, Inc., a wholly owned subsidiary of RB Associates, Inc., d/b/a State Plaza Hotel (the Respondent) had violated Section 8(a)(1) and (3) of the Act by various acts and conduct. After administrative investigation, the General Counsel of the National Labor Relations Board (the Board) issued a complaint alleging that the Respondent had violated Section 8(a)(1) of the Act by soliciting employee grievances, promising employees increased benefits, and threatening employees, all in an effort to dissuade its employees from supporting the Union. The complaint further alleges that, in violation of Section 8(a)(3), the Respondent increased the benefits of its employees in various ways and that it discharged employee Luis Osorio, all in an effort to discourage employees from joining or otherwise supporting the Union. Finally, the complaint separately alleges that the Respondent violated Section 8(a)(1) by discharging Osorio because he concertedly complained to the Respondent about the terms and conditions of employment of the Respondent's employees. The Respondent duly filed an answer to the complaint admitting that this matter is properly before the Board but denying the commission of any unfair labor practices. Upon the testimony and exhibits entered at trial, and after consideration of the briefs that have been filed, I enter the following findings of fact and conclusions of law. I. Jurisdiction and Labor Organization's Status As it admits, at all material times the Respondent, a corporation with an office and place of business in Washington, D.C., has been engaged in the business of owning and operating a hotel and providing food, beverages and lodging to its customers. In conducting those business operations during the 12- month period preceding the issuance of the complaint, the Respondent derived gross revenues in excess of $500,000, and it purchased goods valued in excess of $5,000 directly from suppliers located at points outside the District of Columbia. Therefore, at all material times the Respondent has been an employer that is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As the Respondent further admits, at all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. The Alleged Unfair Labor Practices A. Threat, solicitation of grievances, and grant of benefits The Union began an organizational attempt among some of the Respondent's employees during the spring of 2003, and it filed a petition for election with the Board on July 11. An election was held in September; the Union received a majority of votes cast. (The facts of just what date the election was held, and whether certification of representative issued, or whether bargaining has started, were not established in the record.) Marleni Jiron, a housekeeping employee, testified that, at time of trial, she had been employed by the Respondent for 2 years. When asked by the General Counsel when she had first met John Rish, the Respondent's general manager, Jiron answered that it was in May 2003 "[I]n a meeting that he called" for the housekeeping employees. Jiron, who appeared with a translator, was asked on direct examination about the May meeting, and she testified: Q. Can you recall what was said out loud during the meeting by Mr. Rish? A. The first thing was in relation to the Union. ... He said that apparently he had received some sort of a paper that the Union will be present at the Hotel, or will be taken into the employees of the Hotel. Q. Okay. What else did he say? A. He had stated that if the Union would have access to the Hotel, the Hotel would be sold to the University. Q. What else did he say? A. We would have to pay a certain percentages to the Union. (If the Respondent has some relationship with a university, the fact was not brought out at trial.) Jiron continued on direct examination to testify that Rish asked: "What was the problem? Why did we want to belong to the Union?" Jiron testified that she raised her hand and told Rish that the employees did not have enough linens to do their room-cleaning assignments. When asked what Rish replied, Jiron testified: "He was going to see whether the problem could be solved." The Respondent provides its employees with a free lunch or dinner during their shifts. When asked what other employee complaints were aired at the May meeting, Jiron responded that she (or another employee) complained that the food "wasn't any good." According to Jiron, Rish responded that he would see "if he could actually resolve that issue ... [t]hat he wasn't aware at all what was happening with that issue." The housekeeping employees also complained that their daily assignments of 13 rooms to clean was overly burdensome. According to Jiron, Rish responded "that he might just reduce it by one room." Jiron further testified that, during her previous 2 years of employment with the Respondent, Rish had not conducted a meeting "like this" with the employees. Jiron testified that after the May meeting with Rish, the food improved, the housekeeping employees were supplied with more linens, the room-cleaning assignments were reduced to 12 per shift, and the allowance for cleaning extra rooms was increased from $3.00 to $5.00. On cross-examination, Jiron readily acknowledged that the housekeeping employees had previously asked their supervisor, Cecilia _____, to arrange a meeting with Rish. Jiron was not asked if she, or other housekeeping employees, told Cecilia why she, or they, wanted to meet with Rish. The General Counsel called Rish as an adverse witness. Rish testified that Adriana ____, a catering sales assistant who is bilingual, informed him in May that "Some people are starting to talk about contacting a union, you know, and they want to know how you feel about it." Rish replied to Adriana: "Okay, we'll call a meeting." Rish further testified that at the May meeting of the housekeeping employees he asked them "if they had any concerns that I could help with." Rish did not further dispute Jiron's testimony about what was said at the May meeting. Rish agreed that he thereafter reduced the room- cleaning assignments from 13 to 12. Rish further acknowledged that at the May meeting the employees complained that the then-existing allowance of $3.00 for cleaning an extra room was too low. Rish also acknowledged that, after the meeting, he increased the allowance to $5.00 per extra room. Rish further acknowledged that the housekeeping employees at the May meeting complained that they were not ever provided with free coffee in the cafeteria, and he admitted that after the meeting the free coffee was provided to them. (Another supervisor testified that, after the May meeting, the Respondent began to provide free coffee to the housekeeping employees at the beginning of each shift.) Rish further acknowledged that after the May meeting he ordered the head chef to provide better food (hot meals instead of sandwiches, fresher vegetables) for the employee meals. And Rish acknowledged that shortly after the May meeting the housekeeping employees were provided with more linen. On the basis of the above testimony, paragraph 6 of the complaint alleges that during the May meeting of housekeeping employees the Respondent, by Rish, in violation of Section 8(a)(1): (a) solicited employee complaints and grievances, and promised its employees increased benefits and improved terms and conditions of employment, if they refrained from union- organizing activity; and (b) told employees that Respondent was better off selling its hotel if employees selected the Union as their exclusive collective-bargaining representative. Paragraph 7 of the complaint alleges that in May the Respondent violated Section 8(a)(3) and (1) by: (a) reducing the number of room assignments per employee; (b) improving the food items provided to employees; (c) providing employees with the necessary materials to accomplish their work assignments that had been previously withheld; and (d) paying employees extra wages for cleaning additional rooms. In Cogburn Healthcare Center, 335 NLRB 1397 (2001), as it issued a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Board described an employer's threat to sell its business if its employees selected a union as their collective-bargaining representative as a "hallmark" violation of the Act. Although Rish testified, and although he denied other misconduct, he did not deny telling Jiron and the other housekeeping employees that, should the Union be selected by the employees, "the Hotel would be sold to the University." On brief, the Respondent does not argue that this uncontradicted statement by Rish was anything other than a blatant threat in violation of Section 8(a)(1). I found Jiron to be credible on the point, and I do find and conclude that the Respondent violated Section 8(a)(1) by Rish's telling the housekeeping employees in the May meeting that the Respondent would sell the Hotel if they selected the Union as their collective-bargaining representative. Rish admitted that Adriana told him that the housekeeping employees wanted the May meeting because "[s]ome people are starting to talk about contacting a union, you know, and they want to know how you feel about it." Therefore, there is no question that the purpose of the meeting was to announce the Respondent's response to the organizational attempt that had recently begun. Jiron testified that during the May meeting, Rish asked the housekeeping employees, "What was the problem? Why did we want to belong to the Union?" Rish, himself, testified that, "I asked if they had any concerns that I could help with." Accordingly, it is clear that the Respondent was soliciting employees' grievances when Rish conducted the May meeting. The Respondent defends its action on 2 principal grounds. The Respondent first contends that Rish had a long-standing practice of soliciting employees' grievances and that the May meeting was just another instance of that practice. The only evidence that the Respondent advances in support of this contention is a single answer that Rish gave to the General Counsel when the General Counsel asked if the May meeting were not the first that he had ever conducted. Rish replied to that question: We have had meetings for Housekeeping Appreciation Week. I frequently go down to the Housekeeping Department at the beginning of the shift to say "Good morning. Is there anything you would like to share with me? Do you have any concerns?" And so on and so forth. This single answer is hardly probative evidence on the point. There was no explanation of when "Housekeeping Appreciation Week" was or what was then discussed. Rish's testimony that he "frequently" asks the housekeeping employees if they have any concerns was simply unbelievable. As well as having a particularly hollow ring to it, the testimony was not corroborated by any housekeeping supervisor (or anyone else) who would have been present. Moreover, Rish did not testify that he visited any other department of the Hotel (e.g., restaurant, front desk, maintenance) to solicit employee grievances, and there is no reason why he previously would historically have singled out the housekeeping department for such attention. Second, the Respondent contends that it cannot be held to have unlawfully solicited grievances at Rish's May meeting of housekeeping employees because the employees requested the meeting. Rish, however, testified that Adriana told him that the employees wanted the meeting because "they want to know how you feel about it [the Union]." Adriana did not tell Rish that the employees wanted to express their grievances. Grievances were not brought up until Rish called the employees together and asked "What was the problem? Why did we want to belong to the Union?", as Jiron credibly testified. This conduct by Rish was a solicitation of grievances, with an implicit promise to rectify such grievances, in order to thwart the Union's organizational attempt. As the Board stated in Flexsteel Industries, Inc., 316 NLRB 745, fn. 1 (1995): [W]e note that an employer's solicitation of grievances during a union organizing campaign carries with it an inference that the employer is implicitly promising to correct the complaints it discovers. This inference is applicable in this case, and the respondent did not rebut it. See, e.g., Coronet Foods, 305 NLRB 79, 85 (1991), enfd. 981 F.2d 1284 (D.C. Cir. 1993); Uarco, Inc., 216 NLRB 1, 1-2 (1974). Not only has the inference not been rebutted in this case, the Respondent has, in fact, fortified the inference by granting remedy to the employees' grievances that they expressed at the May meeting about workload, pay and other benefits. Accordingly, I find and conclude that, by soliciting employee grievances and promising to remedy those grievances in order to dissuade the employees from accepting the Union as their collective-bargaining representative, the Respondent violated Section 8(a)(1), as alleged in the complaint. Resolution of the allegations of paragraph 7 of the complaint, that the Respondent violated Section 8(a)(3) by granting benefits to employees in order to discourage them from joining or supporting the Union, turns on proof of the Respondent's motivation. Under the causation test of Wright Line, the General Counsel bears the initial burden of showing that the grants of benefits were motivated, at least in part, by antiunion considerations. The General Counsel can meet this burden by showing that employees were engaged in union activity, that the employer was aware of the activity, and that the employer harbored animosity towards the Union or union activity. Once this showing has been made, the burden shifts to the Respondent to demonstrate that the same action would have taken place even in the absence of the protected conduct. In May, Adriana told Rish that the employees wanted to meet with him in order to find out how he felt about the Union. And Jiron testified that Rish asked the housekeeping employees at his May meeting why they wanted a union. Therefore, there can be no doubt that the Respondent knew about the union activities of the housekeeping employees before the admitted grant of benefits. Also, the General Counsel adduced the plainest evidence of animus toward those activities by proving Rish's undisputed, blatant, hallmark, threat to the housekeeping employees that the Respondent would sell the Hotel if the employees proceeded with their union activities. All of this evidence warrants the inference that the Respondent's granting of benefits had a motive of discouraging its employees from joining the Union or supporting its organizational campaign. The General Counsel has therefore clearly met the initial Wright Line burdens. The Respondent was therefore required to show that it would have granted the benefits even in the absence of union activities. The Respondent defends its grant of better food for employee meals on the ground that Rish had previously directed the chef to serve hot meals and to use fresher vegetables. The Respondent defends its providing more linen on the grounds that linen-ordering was a seasonal thing, and the Respondent was about to order new linen anyway. The Respondent defends its increase of the allowance for cleaning extra rooms on the ground that, after the May meeting, Rish checked with other hotels in the area that are owned by RB Associates and found that they were paying $5.00, instead of $3.00, per extra room. The Respondent offers no defense for reducing the workload of the housekeeping employees (from 13 assigned rooms to 12), and the Respondent offers no defense for granting the employees pre-shift coffee, other than to say that the employees requested these items. Of course, the employees requested the morning coffee and the reduced work load only after Rish asked them why they wanted to be represented by a union. The Respondent's relying on these unlawfully solicited requests, or grievances, is an effective admission of an intent to use the benefits to dissuade the employees from joining or supporting the Union, and it is an effective admission of violation of Section 8(a)(3) in granting those benefits. Moreover, the Respondent's defense that it had previously ordered the new linen for employees to work with, and its defense that it had previously ordered better food for employee meals, rest solely on testimony by Rish that was also cryptic, uncorroborated and incredible. Finally, Rish's (hearsay, uncorroborated) testimony that he found out that other hotels owned by RB Associates were paying their housekeeping employees $5.00 per extra room is not a defense under any case authority or theory of law; Rish did not take the trouble to find out what other hotels were paying until he found out that the employees might be interested in union representation. Accordingly, I find and conclude that the Respondent violated Section 8(a)(3) by granting employees benefits in order to dissuade them from supporting the Union in its organizational attempt. B. Discharge of Osorio Luis Osorio worked as a waiter in the Hotel's restaurant from 1996 until he was discharged by Rish on June 19, 2003. At the time of the discharge, Rish told Osorio that he was being terminated because, on May 11, he had violated the Respondent's rules for employees who are clocking in or clocking out. The General Counsel contends that the real reason that the Respondent discharged Osorio was that, on June 15, Osorio approached an admitted supervisor to present a complaint on behalf of another employee about that employee's being threatened with discharge by her supervisor and to present to that supervisor other employee grievances. Alternatively, the General Counsel contends that the Respondent discharged Osorio because he was active on behalf of the Union during its organizational attempt. The Respondent defends the action on the ground that Osorio did, in fact, violate its clock- in/clock-out rules on May 11, and it denies knowledge of any union activities in which Osorio may have engaged. The General Counsel replies that, even if Osorio did violate the clock-in/clock-out rules on May 11, the Respondent's discriminatory motive is revealed by its delay of discipline until after Osorio engaged in protected concerted activity. The Respondent contends that the delay was caused by the time necessary to investigate the offense, and to convene the supervisors concerned, before making the decision. 1. Facts Miguel Cordova, an organizer who is employed by the Union, testified that he was the "lead organizer" for the Union's 2003 drive among the Respondent's employees. Cordova testified that Osorio called him on March 22 and set up a meeting (but he did not testify that Osorio's call was the initial contact between the Union and the Respondent's employees). The Union conducted about 20 meetings of employees during the summer, and Osorio attended "90 percent" of those meetings. Cordova further testified that the Union established an organizing committee of 15 of the Respondent's employees, and Osorio "was one of the leaders." Osorio and the other members of the committee agreed to distribute union authorization cards among the Respondent's employees, but Cordova cautioned them to "do it outside the property." Osorio testified that he solicited employee signatures on authorization cards, but away from the Respondent's premises. There is no evidence that the Respondent's supervisors became aware of Osorio's activities on behalf of the Union before his discharge. The Respondent's restaurant is located in a building that is adjacent to, but separate from, the hotel building. Osorio testified that his usual practice when reporting for work was to drive down a ramp of the hotel building, go inside where the time-clock was located, clock in, return to his automobile, park on the street, go into the restaurant building, change into his uniform in a locker room, and then go to work. The Respondent's employees do not have paper time-cards. Rather, they have coded permanent cards which they swipe through the time-clock, and the hours that they are to be credited are electronically recorded by a central system. On May 11, which was Mother's Day in 2003, Osorio was scheduled to work a shift from noon until 10:00 p.m. Osorio clocked in at 11:57 a.m. Osorio had worked the previous day, and he knew that the Mother's Day reservation for a party of 25 had been canceled, and he knew that only 3 reservations, for a total of 6 customers, remained for the day. Osorio testified that when he arrived at the restaurant on May 11 he did not change into his uniform. Instead, Osorio approached Ronald Lineres, the restaurant manager, and asked if he could leave because there was not going to be much business that day. Lineres replied that Osorio could leave then, but he had to return at 4:30 p.m. to help with the dinner service. Osorio agreed that he would. Lineres extracted a second express commitment from Osorio that he would return at 4:30 p.m. because he, Lineres, was not going to be at the restaurant at that time. Osorio gave Lineres the second commitment. Osorio further testified that then, "I just ran out and I completely forgot to clock out." Lineres did not testify. Osorio further testified that he did return to the restaurant at 4:30 p.m. (a matter about which I have some serious doubt, as discussed infra). Osorio did not clock in for a second time that day (if, in fact, he did return to the restaurant on May 11). Osorio further testified that when he returned to the restaurant he changed into his uniform, but he did no work. Osorio testified that he stayed at the bar and telephoned his brother, Jaime ("Carlos") Osorio. Jaime, who is also employed as a waiter at the Respondent's restaurant, did not testify. Osorio testified that he asked Jaime to come to the restaurant and work the remainder of his (Osorio's) shift because Osorio was "not feeling good." Jaime agreed to do so if Osorio called Lineres, if Lineres approved, and if Osorio called Jaime back and reported that Lineres had approved. About 5:00 p.m., Osorio reached Lineres by telephone. Osorio asked Lineres if Jaime could work the remainder of Osorio's shift if Jaime came to the restaurant. Lineres agreed, but he ordered Osorio to wait until Jaime arrived before he (Osorio) left the restaurant. Osorio agreed. Osorio then went to the locker room, changed from his uniform to street clothes, returned to the bar, and sat and waited for Jaime. Osorio further testified that Jaime arrived at the restaurant about 6:00 p.m., and then he (Osorio) left. Osorio did not testify that he clocked out about 6:00 p.m. on May 11 as he left the restaurant (supposedly for the second time that day). His time record shows, however, that he was clocked out, by somebody, at 6:04 p.m. on May 11. Because Osorio had clocked in at 11:57 a.m., that morning, and because he had not clocked out when he left shortly after reporting for his noon shift that day, Osorio received credit for working 6 hours and 7 minutes on May 11, although he had actually done no work at all. Jaime's record for May 11, however, shows that he (Jaime) clocked in at 6:04 p.m. (i.e., the exact minute that Osorio's record shows a clocking out). The General Counsel asked Osorio, and he testified: Q. I will just show you R-8 [Jaime's record] and R-5 [Osorio's record]. Now, those documents show that you clocked out at 6:04 p.m. and your brother clocked in at 6:04 p.m.; is that correct? A. Yes. Q. Can you explain how that happened? A. I don't remember. Q. Well, what do you think might have happened? A. One ... of us do it. I don't remember. Osorio acknowledged that he knew that his clocking his brother in, or his brother's clocking him out, was a violation of the Respondent's disciplinary policies. Mondays and Tuesdays were Osorio's days off at the time. Osorio testified that on Wednesday, May 14, when he reported for work, he was called to Rish's office where he was met by Rish and Laura Gaige, the Respondent's food and beverage manager. Osorio testified that Rish asked him why he had not clocked out when he left at noon on May 11, but Osorio did not testify what he replied. Further according to Osorio: At that meeting Mr. Rish told me because this happened he will ask questions to Mr. Linares, to my brother, and other people and after that meeting we don't get paid for that date. He says, "I am going to write you up." ... I said, "Sir, if you have to do it, you have to do it." Osorio then went back to work, without receiving a written warning (then or at any later time). Osorio testified that between May 13 and June 15 he spoke to no supervisor about terms and conditions of employment of the Respondent's employees. On Sunday, June 15, however, Osorio spoke to Mustafa Aouli, the Respondent's front desk manager. Aouli did not testify, and the following testimony by Osorio about the June 15 exchanges between the 2 men went undisputed: About 6:00 p.m., when Aouli was the Respondent's "Manager on Duty," he came into the restaurant for his evening meal. Osorio waited Aouli's table, and the men had a discussion. Aouli and Osorio first discussed the fact that Aouli had previously submitted his resignation and the fact that that evening was Aouli's last shift with the Respondent. Osorio then told Aouli that on June 13 or 14 restaurant employee Alexandria Guillen told him that her supervisor had threatened her with discharge for something that she had supposedly done. Osorio further told Aouli that he had told Guillen and other restaurant employees that they should attempt to secure a meeting with the manager of the human resources department of RB Associates (again, the Respondent's parent corporation), without any of the Hotel's local supervisors being present. Osorio further told Aouli that he had told the other employees that the purpose of such a meeting would be to discuss the threat to Guillen and "to let them know what is going on in the Company, what happens with general management [of the Hotel] and how we get treated ... because today it can be you, tomorrow it can be me or [the] next day it can be somebody else from the restaurant." Osorio further told Aouli that Guillen and the other restaurant employees had agreed with him that such a meeting should be requested. After telling Aouli all of this, Osorio asked Aouli, whose English is better than Osorio's, to compose a letter to the human resources manager of RB Associates requesting such a meeting. Aouli initially agreed to compose such a letter, but later in the evening he met Osorio and told Osorio that he would not do so. (Aouli told Osorio that a letter might get lost and it would be better if Osorio handled the matter by telephone directly, himself. Osorio agreed.) Osorio worked a shift on Monday, June 16; that day was extremely busy for the restaurant because a reception for a European prime minister was held there. (Osorio, in fact, worked until 1:00 a.m. on June 16.) June 17 and 18 were Osorio's days off that week. According to Osorio, when he arrived at work on June 19 Gaige escorted him to Rish's office. There, Rish told Osorio that he had made an investigation of what had happened on May 11. Rish told Osorio that he had decided that Osorio had not even come to the restaurant on May 11 because he (Osorio) had not turned in a uniform for cleaning on that date. Rish then showed Osorio a vendor's bill that listed the names of employees who had turned in their uniforms for cleaning on May 11; Osorio's name was not on the list. Osorio insisted to Rish that he had come to the restaurant on May 11 (without saying that he had come there twice). Osorio further told Rish that on May 11 he may not have turned in the uniform that he wore that day because he possessed more than one uniform. Rish told Osorio that he still did not believe that Osorio had come to work on May 11, and he then told Osorio that he was fired. Osorio asked for a "one last chance" because "[t]his is the first time it happened to me." Further according to Osorio: He [Rish] said, "No, I cannot give you no more chance here. You no have any more chance here. What I can do for you, we're going to find you another job at another company at another location." ... He told me he would make contact with the Manager of the Henley Park Hotel. ... He [said that he] would be contacting the manager over there to try to find another job for me because I was a good server, and he was sorry they were going to lose me, but that's the way it had to be done. (The Henley Park Hotel is another hotel in the District of Columbia that is owned by RB Associates.) Osorio testified that Rish gave him "a bunch" of his business cards and told Osorio to use him as a reference with prospective employers. Osorio asked Rish for a letter of recommendation. Rish replied that he would have one for Osorio during the following day. Osorio testified that Rish added: "Because you come here, you don't work tonight, I'm going to pay you $70 for the day." Osorio thanked Rish for the money, then turned to leave Rish's office. As he walked away, Gaige followed him. Gaige also gave Osorio "a bunch' of her business cards, and she told Osorio: "I'm sorry, Luis. But if there is anything I can help you with, here is my business card. You can use [it] as [for a] reference for [from] me." (None of this testimony was denied by Rish or Gaige.) On June 20, Osorio returned to Rish's office. Further according to Osorio: He said "Well, Luis, I'm sorry about what happened yesterday, but I don't have any choice. I know you are my favorite waiter, my wife's favorite waiter. There's nothing I can do, but I am going to do for you the letter." He sit at his computer and he start typing the recommendation letter for me. On Hotel stationery, Rish wrote: To Whom It May Concern: Luis Osorio was employed at the Garden Cafe at the State Plaza Hotel from October 6, 1996, until June 19, 2003, as a server and bartender. During his tenure, Luis proved to be a valued member of our team, displaying the utmost care and commitment to service. I would recommend Luis for any position he decides to embark [upon?]. Should I be of any assistance to you, please contact me directly at [telephone number]. Rish signed the (undated) letter as the Respondent's general manager. Further on direct examination, Osorio testified that during a 6-month period of 2002, Rish made him acting restaurant manager when the previous food-and-beverage manager was fired. When asked what he did as acting manager, Osorio testified: "Do everything for the restaurant, orders, banquets, schedules, payrolls, inventories, everything that normal managers do, general managers do." On cross-examination, Osorio testified that, although each employee has his own permanent time card with which to clock in and clock out, the cards are left by the employees at the time-clock (which, again, is in a building separate from that of the restaurant). Osorio testified the employees leave their cards at the clock "so we don't lose the cards." I felt constrained to ask (and I felt constrained to thereafter comment): JUDGE EVANS: Did you give your -- did you tell your brother to punch in for you, or punch out for you, on May the 11th? THE WITNESS: I don't remember. JUDGE EVANS: You don't remember? THE WITNESS: I don't remember. When you asked me that, I don't know. JUDGE EVANS: But if you did such a thing, you would remember it, wouldn't you? THE WITNESS: Yes, sir. I was trying to figure out that, but I couldn't remember. JUDGE EVANS: So, are you telling me -- Sir, do you realize you are under oath? THE WITNESS: Yes, sir. JUDGE EVANS: And you have no idea how your brother and you could have both punched the clock at 6:04 p.m. on May 11th? THE WITNESS: That's what I don't remember, if it was me or was him, I don't really remember, but one of us do it, but I don't know which one do it. JUDGE EVANS: I'm sorry, sir. I just don't believe you. The General Counsel had no redirect examination for Osorio. The Respondent's payroll periods run from Sundays through Saturdays. Gaige reviews the food and beverage department's payroll on Mondays or Tuesdays. On direct examination, Gaige testified that on Monday or Tuesday, May 19 or 20, she reviewed the payroll report for the week of May 11 through 17. She noted that Osorio had been recorded as clocking out on May 11, after working 6 hours, at the same minute that Jaime had clocked in. Gaige testified that it was "nearly impossible" for 2 employees to hit the clock at the same minute. She therefore immediately informed Rish. Gaige testified that, "a couple of days after I received the report," she and Rish questioned Osorio and Jaime about how they could have hit the clock at the same time. Gaige testified that Osorio claimed that he had worked on May 11, but she also testified that she could not recall what Osorio gave as an explanation for his and Jaime's identical clock times. (Gaige was not asked if Jaime offered an explanation.) Gaige testified that Osorio's account made no sense, "so we decided that we would further investigate." (Gaige did not testify what, if any, further investigation that she may have participated in.) Gaige denied knowing before Osorio was discharged that he had favored the Union. On examination by the General Counsel, Gaige was shown an undated "Employee Communication Record" form that had come from Osorio's personnel file. In a space for "Employee action," there is entered (in handwriting): "On Sunday, May 11, 2003, Luis neglected to check out when leaving property as he left early from his shift." A space on the warning notice for "Employee comments" is blank. In a space for "Performance Expectation" Is written: "Luis knows the importance of clocking in and out when leaving the property and will continue to do so each time. Failure to do so will result in suspension/termination." Gaige acknowledged that she made the handwritten entries on the form. When asked why she wrote "[f]ailure to do so will result in suspension/termination" Gaige replied: After Mr. Rish and I spoke to Luis regarding May 11th, we were pending an investigation, so I just wanted to kind of write a little something as to what we spoke about, pending further investigation. ... It was kind of my verbiage of, it's pending investigation, and upon investigation, if the results come out as such, termination or suspension will result. Gaige acknowledged that she and Rish signed the undated form. Rish was first called to testify by the General Counsel who examined him as an adverse witness. Rish acknowledged that no other waiter was ever asked to assume the duties of the restaurant manager, as was Osorio in 2002. Rish further testified during the General Counsel's examination that Osorio was terminated "solely on the events that took place on May 11th" and that other discipline in his file "wasn't considered in this decision to terminate him." Rish acknowledged that Respondent uses the "Employee Communication Record" form for written warning notices and reprimands under its written progressive disciplinary system, which system provides for punishments ranging from "verbal counseling" to discharge. Rish acknowledged his signature on the undated "Employee Communication Record" that is quoted above, but he disclaimed memory of "the time frame or the context for which this was created." When examined by the Respondent's attorney, Rish denied knowing that Osorio had engaged in any union activities or that he had held prounion sympathies. Rish identified a termination notice that he created for Osorio's file. The effective date is "6/19/03." In a space for "Reason (Be Specific)," Rish wrote: "Falsif[ied] time card. Luis did not work on 5/11/03." In a section for "Comments," Rish wrote: "Luis is a good server. When confronted, he attempted to lie his way out. He came in, left and came back and clocked out. Witnesses were Mustafa Aouli, Ellery & Sharif." Rish testified that during his investigation of the matter Aouli had told him that he did not see Osorio on May 11, but Ellery ______ (a chef) and Shariff ______ (another waiter) told him that they had seen Osorio at the restaurant's bar during the afternoon of May 11, in street clothes, although they could not recall what time it had been when they had seen Osorio. Rish did not testify when it was that he spoke to Aouli, Ellery or Sharif. Rish also testified that he spoke to Lineres, but he did not testify when he did so. Rish testified only that Lineres had stated that he had excused Osorio to leave shortly after noon on May 11 if he would come back later to work. When asked on direct examination why it took from May 11 until June 19 to discharge Osorio, Rish responded: There are two reasons. It took some time, again, for scheduling and talking to people throughout the investigation. Secondly, we didn't want to talk to -- The two people in this questioned were Jaime, or "Carlos," [Osorio] and Luis Osorio, obviously brothers. We did not want to question them separately. We wanted to do it together. So, having Laura's schedule, my schedule and those two schedules all work out did take some time. When a decision was made that we had a terminable offense we were going to then go down two servers. We had, as noted earlier, released Mahamadou Ly from employment. It was more of a business decision to decide if we needed to hire some more servers before we let Luis go. According to G.C. Ex. 9 (rejected, but to which Rish referred in his testimony), Ly had been terminated on March 12. Rish identified a May 11 "Employee Sales and Tip Totals" sheet for all employees. The sheet reflects no sales or tips for Osorio, but it shows that Jaime had about $1,800 in sales, and about $275 in charged tips, during the hours that he worked that date. (As well as clocking in at 6:04 p.m. on May 11, the Respondent's records show that Jaime clocked out at 10:42 p.m.) Rish testified that when he confronted Osorio and Jaime: Luis and Jaime both explained that Luis called Jaime to come in to finish his shift, as Luis wanted to go home. That in itself was no big issue. So, apparently, according to what was informed to me was [that] Jaime came in, punched in, went to the restaurant, let Luis know he was there, Luis then said okay and left, went down and punched out and Jaime continued to work and Luis went home. Rish testified that "Luis's and Jaime's [story] did not make sense" because the time-clock is distant from the restaurant. Rish testified that, during his investigation of the matter, he timed a brisk walk from the time-clock to the restaurant, and it took a full 3 minutes. Rish further testified (and Osorio did not dispute) that at no point before Osorio received a check that included 6 hour's pay for May 11 did Osorio come to him and admit that he did not work that day. Finally, to prove consistent treatment of similarly situated employees, and to show that investigations of such matters take a long time, the Respondent introduced evidence regarding former employees Ryan De Los Trinos and Carme Reyes. De Los Trinos was discharged on August 12, 2002, because Rish caught him hanging around the Hotel after work when he had not yet clocked out. Rish confronted De Los Trinos at the time, and De Los Trinos lied to Rish by insisting that he had already clocked out when he had not done so. Reyes was discharged on December 10, 2003, for having another employee clock her out about 2 hours after Reyes had left the premises on November 22. Rish testified that he talked to one supervisor and one other employee, as well as Reyes, when he investigated the matter, but he did not testify why it took about 3 weeks to handle the matter. To demonstrate disparate treatment of Osorio, the General Counsel introduced records of, and testimony through Rish about, other employees. According to the Respondent's records, on March 23, 2002, Aouli issued an oral warning to employee Joelaida Barcia about having someone else clock her out. On March 28, 2002, Assistant General Manager Hussein Ahmed caught employee Fabio Coutinho clocking out Barcia. Coutinho was given an oral warning and Barcia was discharged because she "had been warned three days earlier of the consequences of her actions," according to a personnel-file memorandum by Rish. I do not credit Rish's hearsay testimony that the specific March 23, 2002, warning that is referred to in the memorandum was only a general warning to the department's employees. Moreover, although Rish testified that Coutinho told the truth during the investigation, he did not, as asserted by the Respondent on brief, testify that Coutniho's truthfulness is the reason that he was not disciplined over the event. Employee Courtney Steele failed to clock in or out for the entire week of May 18, 2003. Steele was given a written warning that if she failed to do so again she "will be" suspended or discharged. Osorio received no such warning, but the General Counsel did not show that Steele failed to work all of the hours for which she was paid. Employee Merghani Sharif was issued a warning notice on August 4, 2002, for "excessively missed punches." The notice states that "Failure to do so will result in suspension and/or termination." Again, Osorio received no such warning, but the General Counsel did not show that Sharif claimed, or was paid for, hours that he did not work. The General Counsel also showed, however, that on August 23, 2002, Gaige suspended Sharif for 3 days for using a manager's code number to void a customer's check. Gaige noted on the form that Sharif "has been warned in the past of using other employee numbers without authorization." Finally as evidence of disparate treatment of Osorio, the General Counsel relies on the fact that the Respondent did not punish Osorio's brother Jaime for his apparent part in the events of May 11. When the General Counsel questioned Rish as an adverse witness, Rish testified that Jaime received no discipline because, although he suspected Jaime of wrongdoing, "[t]hat would be just purely a guess on my part." 2. Conclusions on Osorio's discharge The complaint alleges that the Respondent violated Section 8(a)(3) because it discharged Osorio for engaging in union activities, or that it violated Section 8(a)(1) because it discharged him for engaging in protected concerted activities, or both. Under Wright Line, supra, the first question before the Board is whether the General Counsel has come forward with evidence that the Respondent knew of, and that the Respondent was at least in part motivated by, union activities or protected concerted activities in which Osorio had engaged. Osorio testified that after he contacted the Union he distributed authorization cards to other employees, and Osorio testified that he attended union meetings. Osorio, however, acknowledged that he conducted his card-soliciting activities and other prounion communications away from the Respondent's premises, and the General Counsel adduced no evidence that the Respondent's supervisors came to know of those activities before he was discharged. As well, Rish and Gaige denied any knowledge of any such union activities by Osorio, and those denials were credible. I shall therefore recommend dismissal of the allegation that the Respondent discharged Osorio in violation of Section 8(a)(3). The alleged violation of Section 8(a)(1), however, raises different considerations. An employee's presentation of commonly held grievances to a member of supervision is the consummately representative example of concerted activities that are protected by Section 7 of the Act. On June 15, Osorio presented to Aouli, Rish's counterpart on the evening shift, grievances involving a threat to employee Guillen and involving "how we get treated." As well, Osorio asked Aouli to draft for the employees a letter to the human resources manager of the Respondent's parent corporation requesting a meeting with the employees without local managers such as Rish being present. On brief, the Respondent contends that, because June 15 was Aouli's last day at work, it is unlikely that Rish came to know before Osorio's discharge that Osorio had presented the employees' grievances to Aouli. This argument would have at least superficial plausibility if it were being advanced in support of a denial by Rish. However, although Rish and Gaige fervently denied any knowledge of Osorio's union activities, neither denied knowing before Osorio's discharge that he had presented the employees' grievances to Aouli. In absence of credible denials, the knowledge of admitted supervisor Aouli is readily imputable to the supervisors who were involved in the discharge. I therefore find that the General Counsel has proved the element of knowledge that is necessary under Wright Line to support an inference of unlawful discrimination in violation of Section 8(a)(1). I also find that the General Counsel has proved that the Respondent bore animus toward Osorio's protected concerted activity. Osorio was not fired the day that immediately followed his presentation of grievances to Aouli. That day, June 16, was extremely busy for the Respondent because there was a reception for a European prime minister at the restaurant. Because Osorio worked past midnight, the reception was apparently an "all hands" operation that required such good waiters as Osorio to be on the job. Osorio was off on June 17 and 18; then he was discharged on June 19, his second work-day after his presentation of grievances. The Board has held that where adverse action occurs shortly after an employee has engaged in protected activity, an inference of unlawful motive is raised. La Gloria Oil, 337 NLRB No. 177 (2002), enfd. 71 Fed. Appx. 441, (5th Cir. 2003) (Table). I find that the inference is properly drawn in this case, and it is fortified by the feebleness of the Respondent's excuse for the delayed- action discharge of Osorio. Rish testified that he delayed discharging Osorio until June 19 because he wanted to talk to Osorio, Jaime and Gaige together and that "having Laura's schedule, my schedule and those two schedules all work out did take some time." However, Gaige testified that it was on May 19 or 20 that she discovered that Osorio and Jaime's records for May 11 showed the same minute for Osorio's clocking out and Jaime's clocking in, and Gaige testified that she reported the matter immediately to Rish. Logic for a proposition that management could not schedule 2 employees to meet with 2 supervisors within at least a week is entirely missing. Also missing are any supporting records to show that Gaige, Osorio, Jaime and Rish were not consistently present during the days following Gaige's May 19 or 20 discovery of the obvious discrepancy. Moreover, Rish is belied by the testimony of Gaige who was clear that the "first night" after her discovery and report to Rish, she and Rish confronted Osorio and Jaime about the matter. In summary, Rish's testimonial attempt to explain the Respondent's delay in discharging Osorio for his May 11 conduct is not credible. Also not believable was Rish's testimony that the Respondent needed time to decide if it needed to hire another server because it had previously terminated waiter Ly. Ly was terminated on March 12, some 3 months before it terminated Osorio. If a replacement for Ly was needed, the Respondent assuredly would have known long before it got around to terminating Osorio. And, obviously, a replacement for Osorio was going to be needed; he must have been the best waiter that the Respondent had because none other was made an acting supervisor or manager, as Osorio was in 2002. Therefore, what the Respondent on brief casually refers to as "personnel problems" could not have been part of a reason for the delay in disciplining Osorio for his conduct of May 11. There being no legitimate explanation for the Respondent's delay in discharging Osorio until immediately after his protected concerted activity of June 15, I find that the timing of that discharge provides the element of animus that is required by Wright Line. The requisite elements of knowledge and animus having been established, the burden is shifted to the Respondent to show that it would have discharged Osorio even absent his protected concerted activities of June 15. On May 11, Osorio clocked in at 11:57 a.m. Osorio testified that he got permission from Lineres to leave almost immediately thereafter, and that he did so, but he "forgot" to clock out. Osorio testified that he returned to the restaurant about 4:30 p.m. If he did so, he did not clock back in. Somehow, Osorio caused himself to be clocked out at 6:04 p.m., and he accepted pay for working those 6 hours even though he acknowledges that he did not do so. That is, Osorio stole from the Respondent on May 11, but that fact hardly ends the inquiry. Gaige described the phenomenon of 2 employees' hitting the clock during the same minute to be "nearly impossible." But, given the story that Osorio and Jaime gave Rish and Gaige on May 19 or 20, it was not just "nearly impossible"; it was absolutely impossible. Gaige testified that "on the first night" that she discovered the identical time records of Osorio and Jaime, which I find was May 14, she and Rish confronted the brothers. Therefore, Rish had the records in hand when Osorio and Jaime told him that Osorio had waited for Jaime to come to the restaurant before Osorio left to go to the next building and clock out. Rish knew that that story was a lie the instant that he heard it. Although Rish testified that he later timed a brisk walk from the time-clock to the restaurant at 3 minutes, he necessarily knew when Osorio and Jaime gave their story that it was absolutely impossible for one employee to leave the restaurant and clock out in another building during the same minute that a second employee clocked in at the other building, if the first employee had waited for the second employee to arrive in the restaurant before he (the first employee) had left the restaurant. Rish's testimony that "Luis's and Jaime's [story] did not make sense" was therefore more than a vast understatement. Of course, if Rish had acknowledged that the brothers' story was the palpable lie that he necessarily knew it to have been, he would have cut himself off from his explanation that the discharge was delayed by the weeks that were consumed in "investigating" the matter. That is, Rish knew all that he needed to know on May 19 or 20, when Gaige presented him with the time-clock records and he heard the employees' impossible explanation. Nevertheless, Gaige composed, and Rish signed, nothing more than a form memorandum to Osorio's file. The Respondent has separate forms for warnings and for discharges; Gaige and Rish selected the form for a warning. In the plainest of language, Gaige and Rish noted only that Osorio's "Performance Expectation" was that "Luis knows the importance of clocking in and out when leaving the property and will continue to do so each time. Failure to do so will result in suspension/termination." (Emphasis supplied.) The terms "will continue" and "[f]ailure to do so" are obvious references to the future. The past was being dealt with inside the four corners of that memorandum. The mater was shelved with that warning notice (which the Respondent did not even bother to deliver to Osorio), and no more was heard of the matter until Osorio's protected concerted activity of June 15. Although he did commit a theft, the circumstances of Osorio's discharge nevertheless bring to mind an old (law school) case on condonation. In Edward G. Budd Manufacturing Co. v. N.L.R.B., 138 F.2d 86 (3d Cir. 1943), cert. denied 321 U.S. 773 (1943), the alleged discriminatee had once done the employer's bidding as the "representative"of an unlawfully assisted union. While doing such, the employee was allowed all sorts of mischief, as noted by the court: The case of Walter Weigand is extraordinary. If ever a workman deserved summary discharge it was he. He was under the influence of liquor while on duty. He came to work when he chose and he left the plant and his shift as he pleased. In fact, a foreman on one occasion was agreeably surprised to find Weigand at work and commented upon it. Weigand amiably stated that he was enjoying it.6/ He brought a woman (apparently generally known as "the Duchess") to the rear of the plant yard and introduced some of the employees to her. He took another employee to visit her and when this man got too drunk to be able to go home, punched his time-card for him and put him on the table in the [unlawfully assisted union's] meeting room in the plant in order to sleep off his intoxication. Weigand's immediate superiors demanded again and again that he be discharged, but each time higher officials intervened on Weigand's behalf because[,] as was naively stated[,] he was "a representative." In return for not working at the job for which he was hired, the petitioner gave him full pay and on five separate occasions raised his wages. One of these raises was general; that is to say, Weigand profited by a general wage increase throughout the plant, but the other four raises were given Weigand at times when other employees in the plant did not receive wage increases. 6/ Weigand stated that he was carried on the payroll as a "rigger." He was asked what was a rigger. He replied: "I don't know; I am not a rigger." But when Weigand joined a CIO union, he was promptly fired. The court had no difficulty in upholding the Board's finding of a violation, stating that it "is certainly too great a strain on our credibility to assert, as does the petitioner, that Weigand was discharged for an accumulation of offenses." The principal difference between Weigand and Osorio is that Osorio was, other than his May 11 dereliction, a good employee. The Respondent was willing to let Osorio's all-too-apparent theft of time go with an (undelivered) warning notice until Osorio engaged in the protected concerted activity of presenting the grievances of his fellow employees to supervisor Aouli. Then the Respondent promptly fired Osorio. It is therefore "too great a strain on [my] credibility to assert," as does the Respondent, that Osorio was discharged for something that had happened weeks earlier. That is, the Respondent's treatment of Osorio after he engaged in protected concerted activity was discriminatory when compared with its treatment of Osorio before he engaged in that activity. Further evidence of discrimination against Osorio is found in the Respondent's treatment of Jaime. Rish knew, immediately, that it was Jaime who swiped both of the identification badges through the time- clock at 6:04 p.m. on May 11. Osorio, who did not work on May 11, had an obvious reason to ask his brother to clock him out; Osorio wanted the money. On the other hand, Jaime worked on May 11, as Rish knew. Rish therefore knew that Jaime would have had no reason to ask Osorio to clock him (Jaime) in. Whether or not Rish suspected that Jaime and Osorio had agreed to split the ill- gotten proceeds, he necessarily knew that Jaime was equally culpable. Rish, however, did nothing to discipline Jaime. The only conceivable distinction is the obvious; Osorio had engaged in protected concerted activities, and Jaime had not. I further agree with the General Counsel that the Respondent's giving employees Barcia and Coutinho individual warnings for their time-card manipulations before imposing any further discipline upon them is indicative of unlawful discrimination against Osorio who got no such warning. Also, the Respondent's giving Sharif a warning and a suspension for theft by using a manager's code to clear a customer's check without payment is further evidence of disparate treatment of Osorio. And further evidence that Osorio was not discharged for theft is found in the glowing "To whom it may concern" letter of recommendation that Rish wrote, without hesitation, for Osorio. Rish stated that "Luis proved to be a valued member of our team, displaying the utmost care and commitment to service," thus belying any professed feeling that Osorio had engaged in some inexcusable offense. Moreover, even as Rish fired Osorio, he gave him $70.00 and told him that the Respondent was "sorry they were going to lose [him]," according to Osorio's uncontradicted testimony. Also, Rish and Gaige gave Osorio their business cards and told him to use them as a reference for future employment. These additional actions are fatally inconsistent with any honestly held belief that Osorio had engaged in an act of theft which the Respondent had not condoned. In summary, the General Counsel has presented a prima facie case that on June 19 the Respondent discharged Osorio in violation of Section 8(a)(1), and the Respondent has not met its Wright Line burden of proving by a preponderance of the evidence that it would have discharged Osorio even absent his protected concerted activities of presenting the employees' grievances to Aouli on June 15. I therefore find and conclude that by discharging Osorio the Respondent has violated Section 8(a)(1), as alleged. CONCLUSIONS OF LAW 1. The Respondent, State Plaza, Inc., a wholly owned subsidiary of RB Associates, Inc., d/b/a State Plaza Hotel, of the District of Columbia, is an employer that is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By soliciting its employees' grievances, by promising to remedy those grievances, by threatening its employees that the Respondent would sell its business if they selected the Union as their collective- bargaining representative, and by discharging employee Luis Osorio because Osorio had engaged in concerted activities that are protected by Section 7 of the Act, the Respondent has violated Section 8(a)(1) of the Act. 4. By granting its employees wage increases and other benefits such as free coffee, more supplies, better meals and lighter work loads, all in order to discourage those employees from becoming members of, or giving assistance or support to, the Union, the Respondent has violated Section 8(a)(3) and (1) of the Act. 5. The Respondent has not otherwise violated the Act as alleged in the complaint. The Remedy Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist therefrom and to take certain affirmative action that is designed to effectuate the policies of the Act. The Respondent must be required to post the appropriate notice to all employees and, because the Respondent unlawfully discharged employee Luis Osorio, it must offer Osorio reinstatement and make him whole for any loss of earnings or other benefits, computed on a quarterly basis from the date of his discharge to the date of a 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 Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be ordered to expunge from its files all records of the violative discharge of Osorio. Sterling Sugars, Inc., 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended ORDER The Respondent, State Plaza, Inc., a wholly owned subsidiary of RB Associates, Inc., d/b/a State Plaza Hotel, of the District of Columbia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Granting employees wage increases or other benefits such as free coffee, more supplies, better meals and lighter work loads, in order to discourage their activities on behalf of the Union; provided, however, that nothing herein shall be construed as requiring the Respondent to rescind any wage increase or other benefits, or benefit practices, that it has previously granted. (b) Soliciting its employees' grievances, promising to remedy those grievances, and threatening its employees that the Respondent would sell its business if they selected the Union as their collective- bargaining representative. (c) Discharging or otherwise discriminating against employees because they have engaged in concerted activities that are protected by Section 7 of the Act. (d) 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 effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Luis Osorio 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 privileges previously enjoyed. (b) Make Luis Osorio whole for any loss of earnings or other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Luis Osorio, and within 3 days thereafter notify Osorio in writing that this has been done and that his discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its District of Columbia facility copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and to all former employees employed by the Respondent at any time since May 1, 2003, the approximate date of the first unfair labor practice found herein. (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. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. Dated, Washington, D.C., May 19, 2004. _____________________________ David L. Evans Administrative 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities WE WILL NOT solicit your grievances, or promise to remedy those grievances, or threaten you that we will sell our business, if you select Hotel and Restaurant Employees Union, Local 25, AFL-CIO (the Union), as your collective-bargaining representative. WE WILL NOT discharge you or otherwise discriminate against you because you have engaged in concerted activities that are protected by Federal Law. WE WILL NOT grant to you wage increases or other benefits such as free coffee, more supplies, better meals or lighter work loads in order to discourage you from becoming or remaining members of the Union, or in order to discourage you from giving assistance or support to the Union; provided, however, that nothing herein shall be construed as requiring us to rescind any wage increase or other benefits, or benefit practices, that we have previously granted. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by Federal Law. WE WILL, within 14 days from the date of the Board's Order, offer Luis Osorio 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 privileges previously enjoyed. WE WILL make Luis Osorio whole for any loss of earnings or other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board's Order, remove from our files any reference to the unlawful discharge of Luis Osorio, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that his discharge will not be used against him in any way. STATE PLAZA, INC., A WHOLLY OWNED SUBSIDIARY OF RB ASSOCIATES, INC., D/B/A STATE PLAZA HOTEL By __________________________________________________ (Representative) (Title) The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board's Regional Office set forth below. You may also obtain information from the Board's website: www.nlrb.gov. 103 South Gay Street, The Appraisers Store Building, 8th Floor, Baltimore, MD 21202-4061 (410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE'S COMPLIANCE OFFICER, (410) 962-3113. Copy with citationCopy as parenthetical citation