State Plaza Hotel

National Labor Relations Board - Administrative Judge Opinions

May 19, 2004

05-CA-031346 (N.L.R.B. May. 19, 2004)

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.