The Los Angeles Airport Hilton Hotel

National Labor Relations Board - Administrative Judge Opinions

Oct 21, 2008

31-CA-027837 (N.L.R.B. Oct. 21, 2008)

JD(SF)–43–08
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FORTUNA ENTERPRISES, L.P.
A DELAWARE LIMITED PARNERSHIP
d/b/a THE LOS ANGELES AIRPORT
HILTON HOTEL AND TOWERS
and Cases 31-CA-27837
31-CA-27954
UNITE HERE, LOCAL 11 31-CA-28011
Rudy L. Fong-Sandoval, Esq. and Nathan Laks, Esq.
Los Angeles, California for the General Counsel.
Eric B. Myers, Esq. (Davis, Cowell and Bowe, LLP)
of San Francisco, California for the Charging Party
Stephen R. Lueke, Esq. and Steven M. Kroll, Esq.
(Ford and Harrison, LLP) of Los Angeles, California
for the Respondent.
DECISION
Statement of the Case
JOHN J. MCCARRICK, Administrative Law Judge: This case was tried in Los Angeles,
California on April 14-18, April 21-25, May 12-15 and June 2-4, 2008, upon the amended Order
consolidating cases, consolidated complaint, as amended,1, the Compliance Specification and
Notice of Hearing issued on March 21, 2007, by the Regional Director for Region 31.
The consolidated complaint and Compliance Specification (Complaint) alleges that
Fortuna Enterprises LP, a Delaware Limited Partnership d/b/a/ the Los Angeles Airport Hilton
Hotel and Towers (Respondent) violated Section 8(a)(1) of the Act; by suspending 77
employees for engaging in a work stoppage, by interfering with an employee’s right to engage in
union activity by ordering the employee to take a break earlier than scheduled, by interrogating
employees regarding their union or protected concerted activity, by coercing employees, by
physically touching and pushing them for engaging in union or protected concerted activity, by
threatening employees with violence if employees engaged in union or protected concerted
activity, by threatening employees with trouble for wearing union paraphernalia, by threatening
employees with suspension if they engaged in union or protected concerted activity, and by

1 At the hearing, counsel for the General Counsel withdrew complaint allegations 18(a) and
(b).
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denying employees access to the Respondent’s facility to engage in union or protected
concerted activity.
It is alleged that Respondent violated Section 8(a)(1) and (3) of the Act by disciplining
employees Nathalie Contreras, Isabel Brentner, Lillia Magalon, Isabel Salinas, Patricia
Simmons and Joanna Gomez for engaging in union and other protected-concerted activities.
The Compliance Specification alleges that the 77 employees suspended on or about
May 11, 2006, are owed backpay as set forth in Appendix A to the complaint in the total sum of
$36,067.93.
Respondent filed a timely answer to the complaint stating it had committed no
wrongdoing. While denying any wrongdoing or that the 77 employees are entitled to backpay,
Respondent admitted that the amounts of backpay as set forth in the Compliance Specification
are correct.
Findings of Fact
Upon the entire record herein, including the briefs from the Counsel for the General
Counsel (CGC) Charging Party and Respondent, I make the following findings of fact. 2
I. Jurisdiction
Respondent admitted it is a Delaware limited partnership with an office and place
business located in Los Angeles, California, where it is engaged in the operation of a hotel
providing food and lodging. Annually, Respondent in the course of its business operations
derived gross revenues in excess of $500,000 and purchased and received at its Los Angeles,
California facility goods or services valued in excess of $10,000 directly from suppliers located
outside the State of California.
Based upon the above, Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admitted and I find that UNITE HERE. Local 11 (Charging Party) is a labor
organization within the meaning of Section 2(5) of the Act.
III. The Alleged Unfair Labor Practices
Respondent owns and operates the Los Angeles Airport Hilton Hotel and Towers,
located at 5711 West Century Boulevard, Los Angeles, California. At Respondent’s facility
Grant Coonley is the General Manager, Sue Trobough is the Director of Human Resources,
Rochelle Romo was Assistant Director of Human Relations, Tom Cook is the Director of Food
and Beverage, Ana Samayoa is the Director of Housekeeping Services, Rolf Jung is the

2 On August 28, 2008, Respondent filed a “Motion to Strike Portion of Charging Party’s Post
Hearing Brief”. Respondent contends that Charging Party’s assertion in its post-hearing brief at
page 5, footnote 2 is not supported by any record evidence concerning the suspension of
employee Alicia Melgarejo. Since I do not rely in any manner on the assertion by Charging
Party regarding Melgarejo, it is not necessary to rule on Respondent’s motion.
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Executive Chef, Manny Collera is Assistant Director of Food and Beverage, Efren Vasquez is a
Restaurant Manager, Chriss Draper is Guest Services Manager, Graham Taylor is Chief of
Security, Jim Davis is the Property Operation Director, Erik Burkhart is the Director of Front
Office Operations, Ava Hirschsohn is the Guest Assistance Manager, Clifton Hebert is the Sous
Chef, Pablo Burciaga is the Banquet Chef, Rogelio de la Rosa is Chief Steward, Luis Gallardo
was Night Manager/Security Supervisor, Jose Cano is the Assistant Director of Housekeeping
and Daisy Argueta is a Security Guard. Respondent has admitted that above named individuals
are supervisors and/or agents of Respondent within the meaning of Sections 2(11) and 2(13) of
the Act.
A. The 8(a)(1) Allegations
1. The Incident Involving Front Desk Employee Ihab Judeh
a. The Facts
Complaint paragraph 7 alleges that in or around March 2006 Ava Hirschsohn
(Hirschsohn) and Erik Burkhart (Burkhart) interfered with employees’ rights to engage in union
activity by preventing an employee from engaging in a scheduled union demonstration.
Ihab “Darren” Judeh (Judeh) was employed by Respondent as a customer service agent
at the front desk until August 2007 when he resigned to attend college. In early March 2006 the
Charging Party was engaged in a picket line in front of Respondent’s facility at noon. Judeh
planned to participate in this picket line during his 30-minute noon lunch break, which had been
scheduled by his supervisor for 12:00 p.m. Before his lunch break at about 11:45 a.m., fellow
Customer Service Agent Teresa returned from her break and told Judeh to take his lunch break.
Judeh replied that he wanted to take his break at noon. At about this time Judeh’s supervisor
Pilar approached him and said, “Darren, I heard there’s a problem with your break.” Judeh
replied that there was no problem but that he wanted to take his break at noon as it had been
scheduled. Pilar asked Judeh if he could take the break now. Judeh said no, he wanted to take
the break at noon. A minute later Hirschsohn came up to Judeh and told him to go on his break.
Judeh said he would take his break as scheduled at noon. Hirschsohn said Judeh was affecting
business and he should go on his break right now. Judeh asked how he was affecting business
since there was low occupancy in the hotel and it was slow. Hirschsohn said she wanted no
further discussion and told Judeh to take his break now. Next Burhart approached Judeh and
said he had heard there was a problem with Judeh’s break. Judeh said they want me to take
my break now but I was planning to take my break at noon as scheduled. Judeh said he
thought the reason that they wanted him to take his break early was because they were trying to
prevent him from going to the picket march. Burkhart said, “Darren, take your break right now
and don’t cause any problems.” It was 11:55 a.m. when Judeh took his lunch break. He
participated in the picketing in front of the hotel for about 20 minutes.
b. The Analysis
The Respondent’s break policy for front desk employees in March 2006 was for the
supervisor to assign breaks to employees at the beginning of the shift. According to Burkhart,
prior to January or February 2006, Respondent had a written break schedule policy that
provided desk clerks take their break according to a fixed schedule. Burkhart claims to have
modified this schedule without putting it into writing to provide that front desk clerks take their
breaks according to the guests’ needs. Burkhart had no information as to how this policy was
communicated to the front desk clerks. According to Judeh, on March 6 or 7, 2006, he was
assigned a break time of 12 noon. According to Hirschsohn, on March 10, 2006, the hotel was
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particularly busy due to an arriving group of guests and this was the reason Judeh had to take
his break early. However, Hirschsohn was unable to provide any details about when the guests
were to arrive, how many were due to arrive around noon time or whether the hotel was busy at
noon time on either March 6, 7 or 10, 2006. Burkhart testified that the need for Judeh to take
his break early was due to the fact that another front desk clerk had just returned from her
break.
There is no evidence that supervisors Pilar, Hirschshon or Burkhart had any knowledge
that Judeh planned to participate in the Union picket line on either March 6,7 or 10, 2006 at the
time the issue first arose and until Judeh volunteered that he was going to participate in the
picket line at about 11:50 a.m.
Despite the conflicting reasons Hirschsohn and Burkhart gave for requiring Judeh to take
his break ahead of schedule, there is no evidence that any supervisor knew that Judeh planned
to take part in the Union picket line at the time he was requested to take his break early. In the
absence of such knowledge, Respondent can not have attempted to interfere, restrain or coerce
Judeh in the exercise of his rights to engage in union activity. I will dismiss this portion of the
complaint.

2. The March 3, 2006 Interrogation of Molina.
a. The Facts
Complaint paragraph 8 alleges that on or about March 3, 2006 Sous Chef Clifton Hebert
interrogated an employee about a union meeting.
Alberto Barajas (Barajas) works for Respondent as a Cook. Barajas’ supervisors
included Sous Chef Clifton Hebert (Hebert). On March 2, 2006, Barajas went to a meeting held
by Charging Party with other employees of Respondent including Cook Ricardo Molina (Molina).
At work the next day in the presence of Barajas, Hebert asked Molina, “How was the meeting
yesterday? Did you go to the meeting?”3 Molina did not respond.
b. The Analysis
Asking employees about their attendance at union meetings has been held to constitute
coercive interrogation in violation of Section 8(a)(1) of the Act. Metropolitan Regional Council,
352 NLRB No. 88 (2008); Nanticoke Homes, Inc., 261 NLRB 736 (1982). Hebert’s interrogation
of Molina was coercive interrogation and violated Section 8(a)(1) of the Act.
3. The Coercive Pushing of Employees by Banquet Chef Pablo Burciaga.
a. The Facts
Complaint paragraph 9 alleges that in March or April 2006 Banquet Chef Pablo Burciaga
coerced employees by physically pushing them back toward their work stations during an
employee meeting to meet with managers Manny Collera and Efren Vasquez.

3 Hebert denied interrogating Molina. Hebert’s testimony generally lacked credibility. Thus,
despite having worked and spoken with Molina and Barajas every day for 20 years, Hebert
denied knowing whether employees were involved in union organizing or even spoke about a
union. I credit Barajas’ testimony.
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In April 2006, a meeting of about 18 employees took place in the kitchen area at
Respondent’s facility with Manny Collera (Collera) Assistant Director of Food and Beverage and
Restaurant Manager Efren Vasquez (Vasquez). This was a regularly scheduled pre-shift
meeting of the servers called by Collera and Vasquez. At this meeting the employees sought
permission to place a piggy bank in the kitchen and dining areas so employees could contribute
for the purchase of kitchen equipment. According to Cooks Antonio Campos (Campos) and
Juan Banales (Banales), employees had previously complained to supervisors about the lack of
needed cooking items but not enough had been provided. According to Campos, employee
Mike Kaib asked both Collera and Vasquez if they could have permission to place a piggy bank
in the kitchen to purchase kitchen equipment. Collera said he had no authority to give
permission for the piggy bank. Kitchen employees Herman Chan, Campos and Banales
listened in on the meeting. Banquet Chef Pablo Burciaga (Burciaga) then approached
employees Herman Chan, Campos and Banales and told them if they were not on break they
should return to work. Burciaga then grabbed Campos, Chan and Banales, who were not on
break, by the shoulders and shoved them back toward their work stations in the kitchen. Kaib
then came up to Burciaga and said, “What are you doing. We aren’t doing anything wrong.”
Burciaga pushed Kaib in the chest and told him to go to his business.4 The record establishes
that employees regularly spoke among themselves in the kitchen about non work related
subjects during working time.
b. The Analysis
It is clear that the employees gathered in the kitchen area of the hotel were engaged in
protected-concerted activity for the purpose of seeking funds to purchase needed kitchen
equipment. While the employees were not in their work areas and not on break, the record
establishes that employees regularly moved around in the kitchen and spoke about non-work
related subjects. Further, Burciaga’s conduct went beyond any legitimate efforts to persuade
employees to return to work. The Board has found that acts of physical touching of employees
while engaged in protected-concerted activity, including pushing, grabbing an employee’s arm
and shaking a fist at an employee may violate Section 8(a)(1) of the Act. Impressive Textiles,
Inc., 317 NLRB 8, 13 (1995); Kenrich Petrochemicals, 294 NLRB 519, 535 (1989); Rike’s a
Division of Federated Department Stores, 241 NLRB 240, 252 (1979). Here, in order to prevent
Campos, Chan and Banales from engaging in a protected-concerted meeting, Burciaga grabbed
and pushed each individual away from the meeting and poked his finger into Kaib’s chest when
Kaib attempted to intervene for the three employees. Such action was a coercive attempt to
interfere with the employees’ rights to engage in protected-concerted activity and violated
Section 8(a)(1) of the Act.
4. The Threat to Employee Campos
a. The Facts
Complaint paragraph 10 alleges that in March or April 2006 Banquet Chef Pablo
Burciaga threatened an employee, who had participated in a meeting with managers Collera

4 While Burciaga denied making contact with the employees, Respondent’s Restaurant
Manager Vasquez, in an investigation conducted by Respondent said that he saw Burciaga
grab employee Campos. Further, while Burciaga denied raising his arms toward Kaib, in the
investigation Vargas admitted he saw Burciaga raise his hand up towards Kaib. I do not credit
Burciaga’s testimony.
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and Vasquez, that if he saw employees standing near the employee’s work station he would use
violence against the employees.
About 30 minutes after Burciaga had pushed employees back to their work stations in
April 2006, Burciaga went to Campos’ work station and said Campos could not be with his
fellow employees if he was not on a break. Campos asked Burciaga what he would do if
co=workers came to his work station. Burciaga replied that he would, “Fire them to shits along
with you.” When Campos said he would like to see that Burciaga said, “I’ll fire them to shits
along with you.” In addition in his affidavit Campos said that Burciaga threatened to, “. . . kick
their asses out of here, including you.”
b. The Analysis
The Board has found statements threatening physical harm for engaging in protected
activity violate Section 8(a)(1) of the Act. Indeed a company owner who told an employee who
had filed an unfair labor practice charge over his suspension:” This isn't a threat, but I want to
kick your ass.” violated Section 8(a)(1) of the Act. Cox Fire Protection, 308 NLRB 793 (1992).
In this case Burciaga threatened to “fire employees to shits” along with Campos and to “kick
their asses”, if they engaged in protected concerted activity at Campos’ work station. This
conduct constitutes threats of physical harm by a supervisor and violates Section 8(a)(1) of the
Act
5. The April 2006 Chriss Draper Interrogation and Threat
a. The Facts
Complaint Paragraph 11 alleges that in April 2006 Guest Services Manager Chriss
Draper (Draper) interrogated an employee about her participation in an employee meeting and
paragraph 13 alleges that in April 2006 Draper threatened an employee that participating in
union activity could get the employee in trouble.
According to Parking Cashier Concepcion Jasmine Ortiz (Ortiz) in April 2006 she had
attended a meeting with 15-20 employees in the kitchen area of Respondent’s hotel. The
purpose of the meeting was to talk to the kitchen manager about a poster offering a reward to
find out who was damaging the kitchen.
About three days later,5 Ortiz was approached by Draper and they went to Draper’s
office. Draper asked Ortiz if she had attended the meeting in the kitchen. When Ortiz said she
had, Draper asked Ortiz why she had attended. Ortiz said she was the leader of the Union.
Draper then said, “Oh my God, do you know how much trouble you’re getting into?” Draper said
he had no trouble with the Union but his bosses told him they were mad because Ortiz was in
the employee kitchen meeting.6 Ortiz said she had to support her employees. Draper replied,
“You’re getting into too much trouble if you continue with this.” Ortiz said she had to do what
she had to to.

5 The written discipline issued to Ortiz is dated April 22, 2006, more than two weeks after the
kitchen meeting.
6 Draper admitted asking if Ortiz was in the kitchen meeting but denied threatening her.
Transcript pages 1162-1163. I found Draper to be a credible witness whose testimony was
consistent and detailed. On the other hand, I found Ortiz’s testimony vague and lacking in
credibility.
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b. The Analysis
The only credible evidence concerning this allegation is that Draper asked Ortiz if she
had attended a kitchen meeting. This conversation took place in supervisor Draper’s office at
the time he was giving Ortiz a warning for participating in the very protected-concerted activity
he questioned her about. Under all of these circumstances, I find that the interrogation was
coercive under the test set forth by the Board in Rossmore House, 269 NLRB 1176 (1984).
Draper’s questioning violated Section 8(a)(1) of the Act. However, I find no probative evidence
to support complaint paragraph 13 and I will dismiss that portion of the complaint.
6. The April 2006 Interrogation by Executive Chef Rolf Jung.
a. The Facts
Complaint paragraph 12 alleges that Executive Chef Rolf Jung (Jung) interrogated an
employee about what he would do in the event of a strike.
According to Cook Campos in April or May 2006, just before he started work, he had a
meeting with Jung and Burciaga in Jung’s office. Jung asked Campos if the employees went on
strike, could he come with them. 7 Campos asked, “What strike are you talking about, chef?
Jung replied, “A strike. If they are going to strike, can I come with you?”8 Campos said, “I don’t
know what you’re talking about” and he left Jung’s office. Frankly, Campos’ testimony makes
little sense and it is improbable that Jung said that he wanted to go with the strikers. Given the
improbable nature of Campos’ testimony, I do not give it credit.
b. The Analysis
Jung admitted that in response to Campos’ volunteering that something was going to
happen, he asked Campos what was going to happen. When Campos did not respond, Jung
asked if there was going to be a walkout or strike. This was not coercive interrogation in view of
the fact that Campos initiated the conversation and Jung was merely attempting to discover
what Campos was talking about. In the absence of probative evidence that Jung interrogated
Campos, I will dismiss this complaint allegation.

7 Charging Party filed a Motion to Correct Transcript on August 22, 2008. Charging Party
contends that the transcript at page 78, lines 19 to 25 should be corrected to reflect that the
word “count” should be substituted for the word “come” in lines 20, 23 and 25. At the hearing
the witness gave this testimony in the English language and no clarification of the witness’
testimony was attempted by any party. To substitute the word “count” in the context of the
witness’ testimony that Jung asked “ . . .can I come with you?” makes no grammatical or logical
sense. The Motion is denied.
8 Jung testified that Campos came into his office and said that “something is going to
happen.” Jung then asked Campos what was going to happen. When Campos did not
respond, Jung asked if there was going to be a walkout or a strike.
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7. The April 21, 2006, Union Paraphernalia Issues
a. The Facts
Complaint paragraph 14(a) alleges that on April 21, 2006, Security Guard Daisy Argueta
(Argueta) blocked employee access to the hotel because the employees were wearing Union t-
shirts and Complaint paragraph 14(b) alleges on the same date Argueta threatened employees
with problems if they entered the hotel wearing Union t-shirts.
In the Spring of 2006, Respondent’s On Call Banquet Server Ana Maria Mendez
(Mendez) went to the hotel to pick up her pay check. Mendez entered the hotel through the
loading dock to go to Banquet Manager Charles Perera’s office where she usually received her
check. Mendez was with employee Beatrice Reyes (Reyes) and Mike (last name unknown).
Both Reyes and Mendez were wearing Union t-shirts with 2¼ inch red lettering that said “UNITE
HERE” across the front of the t-shirt. When attempting to enter the hotel at the loading dock,
Security Guard Argueta stopped Mendez, Reyes and Mike and said they could not enter the
hotel wearing the Union t-shirts. Argueta added that if they didn’t want to have any problems
that they should stay out of the hotel with the t-shirts on and to take them off. While Argueta
continued to bar the door through which the employees attempted to enter, after a few minutes
the employees entered the hotel while still wearing the t-shirts at another door 10 to12 yards
away from Argueta. In the past both Mendez and Reyes had entered the hotel while off duty
wearing clothing without union logos.
b. The Analysis
Limiting access of off-duty employees to an employer’s facility because of an
employee’s union activities violates Section 8(a)(1) of the Act. Mediplex of Wethersfield, 320
NLRB 510, 512 (1995). In the instant case both Mendez and Reyes were stopped by
Respondent’s security guard, an admitted agent of Respondent, for wearing Union t-shirts and
were told by the guard they would have trouble if they entered the hotel wearing the Union
shirts.
Respondent contends that because Mendez and Reyes entered the hotel wearing the
Union shirts after a brief period, that there is only a de minimus violation. Respondent’s reliance
on Yellow Ambulance Service, 342 NLRB 804, 810 (2004) is misplaced. In Yellow Ambulance
Service the General Counsel was unable to show how the impact of requiring a new
employment application from union supporters desiring to switch from full-time to part-time
status adversely affected employees in any material way. Here the security guard’s
unsuccessful attempt to bar employees who were displaying Union shirts from entering the
hotel, does not establish that her threats and attempts to preclude employees from gaining
access were not coercive and chilling of the employees’ Section 7 rights. I find that Respondent
violated Section 8(a)(1) of the Act by barring employees from entering it facility for wearing
Union shirts and by threatening employees if they entered the hotel wearing Union shirts.
8. The May 11, 2006 Chriss Draper Threat of Suspension
a. The Facts
Complaint paragraph 15 alleges that on May 11, 2006, Draper threatened an employee
with suspension if she went to an employee meeting in the cafeteria.
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Whitney Johnson (Johnson) was employed by Respondent as a valet parking cashier.
On May 11, 2006, at about 8:00 a.m. Johnson was told by her supervisor Jose Moran that the
Union was in the employee cafeteria and not to go down there because the police were
involved. Just before 10:00 a.m., when she was due to end her shift, Draper told Johnson,
“Whitney, the Union is downstairs at the employee cafeteria. If you go down there, you will get
a suspension, and I don’t want to do that.”9
b. The Analysis
Threats of discipline for engaging in protected activity violate Section 8(a)(1) of the Act.
Johnnie Johnson Tire Co., 271 NLRB 293, 296 (1984). Draper’s threat to Johnson that she
would be suspended if she joined her fellow employees’ in their protected-concerted work
stoppage violated Section 8(a)(1) of the Act.
9. The May 11, 2006 Rogelio de la Rosa Threat of Suspension
a. The Facts
Complaint paragraph 16 alleges that on May 11, 2006, Chief Steward Rogelio de la
Rosa threatened an employee with suspension if the employee left the hotel in support of an
employee walk out.
Fidel Andrade (Andrade) was employed by Respondent as a cafeteria cook. On May
11, 2006, Andrade was present in the employee cafeteria during the employee work stoppage.
It is uncontroverted that Andrade’s supervisor Chief Steward Rogelio De La Rosa (De La Rosa)
told Andrade that he was not supposed to be in the cafeteria, that he was way over his break
time and that he should go back to work. Andrade replied that if the employees were sent
home, he was going to go with them. Later, De La Rosa returned to the cafeteria and found
Andrade still there with other employees. De La Rosa told Andrade that if he saw him in the
cafeteria again he was going to have to suspend him.
b. The Analysis
As noted above, threats of discipline for engaging in protected activity violate Section
8(a)(1) of the Act. Johnnie Johnson Tire Co., 271 NLRB 293, 296 (1984). De La Rosa’s threat
to suspend Andrade for joining fellow employees’ protected-concerted work stoppage violated
Section 8(a)(1) of the Act.
10. The May 11, 2006, Ana Samayoa Threat of Suspension
a. The Facts
Complaint paragraph 17 alleges that on May 11, 2006, Director of Housekeeping
Services Ana Samayoa (Samayoa) threatened employees with suspension for engaging in
union or other protected concerted activity.

9 While Draper denied mentioning the “Hangar,” as the employee cafeteria was sometimes
called, to Johnson, he did not deny her allegation that she would be suspended if she went to
the employee cafeteria.
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On May 11, 2006, housekeeping employees Dolores Hernandez (Hernandez) and St.
Wenceslaus Lawrence (Lawrence) were in the employee cafeteria with at least 45 other
employees who had gathered to question Respondent’s management about a fellow
employee’s recent termination. It is undisputed that just before 9:00 a.m., during the course of
the meeting, Samayoa told Lawrence, who was on his break, “Lawrence, if you stay here any
longer, you will be suspended for the rest of the day.”
At about 8:07 a.m., Hernandez took his 30-minute break in the cafeteria. At about 8:30
a.m.,10 Samayoa told Hernandez and other employees that they were suspended. Later, at
about 8:37 a.m., Hernandez punched back in after his 30-minute break but returned to the
cafeteria rather than to work because Samayoa had suspended him.
b. The Analysis
There is no dispute that Samayoa at the direction of Trobaugh began suspending
employees at about 9:00 a.m. However, the record is devoid of any evidence that Samayoa
threatened Hernandez with suspension. Rather, the record reflects that Hernandez along with
all the other employees in the cafeteria was told they were suspended. I do not find that
Hernandez was threatened with suspension.
On the other hand the record is clear that Samayoa threatened Lawrence, who was still
on his break, with suspension if he continued to stay in the cafeteria with his fellow employees.
This threat of discipline for engaging in protected-concerted activity violates Section 8(a)(1) of
the Act.
11. The June 2006 Banquet Manager Charles Perera Threat
a. The Facts
Complaint paragraph 19 alleges that in June 2006 Banquet Manager Charles Perera
(Perera) threatened an employee with problems if the employee were to talk about the Union at
the hotel.
In June 2006, On Call Banquet Service Employee Beatrice Reyes (Reyes) had a
conversation with her supervisor Perera in his office. Perera told Reyes he wanted to tell her
something as friends. Perera said that he did not have any problems with Reyes because she
was a good worker but, if she did not want to have problems that it would be better if she did not
talk about the Union inside the hotel. When Reyes asked if this meant she could not talk about
the Union in the hotel, Perera replied that she could talk about the Union but she had to do it
outside the hotel.
b. The Analysis
In Teledyne Advanced Materials, 332 NLRB 539 (2000), the Board found that a
supervisor’s warning, “not to talk to anyone about the Union or to anyone who was involved
with the Union and that they could be written up if they were caught talking about the Union.”
violated Section 8(a)(1) of the Act. Respondent contends that the conversation between Reyes
and Perera was a friendly and casual conversation that does not constitute an unlawful

10 It is apparent from the record as a whole, including the security video’s that Samayoa did
not begin suspending employees until just before 9:00 a.m.
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interrogation under Sunnyvale Medical Clinic, Inc., 277 NLRB 1217 (1985). Unlike the facts in
Sunnyvale Medical Clinic, here there was an implied threat by Perera to Reyes that if she talked
about the Union in the hotel she could have problems. This threat to Reyes, who was not a
known union supporter, violated Section 8(a)(1) of the Act.
12. The May 11, 2006 Suspension of 77 Employees
Complaint paragraph 6, as amended, alleges that on May 11, 2007 Respondent
suspended 77 employees for engaging in and to discourage them from engaging in protected
concerted activity.
a. The Facts
On May 10, 2006, Waitress Patricia Simmons (Simmons) learned that fellow employee
Sergio Reyes (Reyes) had been suspended. That day Simmons went to the Union office and
spoke with fellow employees about what had happened to Reyes. Simmons expressed concern
that Reyes had been suspended because he was pro-union. After contacting a number of co-
workers, it was agreed that the employees would meet in Respondent’s cafeteria the next day at
8:00 a.m. and speak with management about Reyes’ suspension. On May 11, 2006, the
servers and bus service employees took their breaks at 8:00 a.m. and, with about 75-100 of
Respondent’s employees began gathering in the employee cafeteria, where employees usually
took their breaks, and met with Respondent’s General Manager Grant Coonley (Coonley) about
the recent termination of employee Sergio Reyes.
According to Waiter Miguel Vargas (Vargas) between 8:15 a.m. and 8:30 a.m., he told
Samayoa that she needed to locate Coonley and have him come and speak to the gathered
employees about suspended employee, Reyes. Samayoa said she would try.11 Vargas was
concerned about the time because his break was nearly over. According to Vargas, at about
this time Samayoa told employees if they did not return to work they would be suspended.
According to Simmons, at about 8:15 a.m. Samayoa asked employees if they were on break
and if not, they needed to punch out or be suspended. According to Alberto Barajas, at about
8:20 a.m. Samayoa told employees to go back to work or they would be suspended and at
8:25 a.m. Samayoa told Barajas he was suspended. 12
According to Lobby Attendant Lilia Magallon, between 8:45 and 9:00 a.m. Samayoa
came to the cafeteria and said if you are going to, work, if not punch and leave. About 5 to10
minutes later Samayoa returned and repeated employees were to punch in or leave.
At 8:30 a.m. Vargas punched in to work from his break. Between 8:30 a.m. and
9:00 a.m. Samayoa returned and told the employees to punch in or go home and if they did not
return to work; she would contact the police. Vargas told Samayoa and Graham Taylor the
Director of Security to contact Coonley and not harass his fellow employees. Another attempt
was made to contact Coonley.
Samayoa returned to the cafeteria between 9:00 and 9:30 a.m. and asked employees
what they wanted. Vargas told her the employees wanted to talk about Reyes’ suspension and
asked if Coonley had been contacted. Later, Vargas asked Chief Steward Rogelio de la Rosa

11 Samayoa did not deny this conversation took place.
12 Based on the entire record, including the security videos, it is unlikely that any threats of
suspension occurred much before 9:00 a.m.
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to contact Coonley or Director of Food and Beverage Tom Cook and communicate that the
employees wanted to return to work.
After not getting any response, between 9-9:30 a.m. the employees formed a committee
of 8-10 employees, including Barajas, to tell Respondent that they wanted to return to work.13
The committee went to the kitchen area and spoke first with supervisor David Aragon (Aragon).
Vargas told Aragon to tell Cook employees would return to work. Aragon agreed. When
Aragon returned he told the group that they had been suspended and could not return to work.
A few minutes later Executive Chef Rolf Jung approached the employees and told
employees Alberto Barajas and Richard Acosta that they were suspended. Later, Assistant
Director of Food and Beverage Manny Collera, Samayoa, Director of Security Taylor and a
police officer approached the committee. Vargas told them that the employees wanted to return
to work. Collera said the employees could not return to work since they were suspended.
Vargas asked if everyone was suspended and Collera replied yes. Samayoa said that everyone
was suspended pending investigation. Vargas told Samayoa that the needed to tell the
employees in the cafeteria that they had been suspended and Samayoa that that was alright. In
the cafeteria at about 10:15 a.m. to 10:30 a.m., Vargas told the gathered employees that they
had all been suspended pending investigation and that all employees had to leave the hotel.
Between 10:30 a.m. and 10:45 a.m., all of the employees left the cafeteria.
According to Samayoa, on May 11, 2006 she first got to the employee cafeteria at about
8:13 a.m. with Assistant Director of Housekeeping Jose Cano (Cano). Night Manager/Security
Supervisor Luis Gallardo (Gallardo) told Samayoa the employees wanted to talk with Cook or
Coonley. At about 8:15 a.m. Simmons told Samayoa the employees were waiting for Cook to
come to the cafeteria. At about 8:18 Samayoa left the cafeteria and returned at 8:23 a.m.. At
8:29 a.m. Samayoa went into the seating area of the cafeteria and spoke with Gallardo who
relayed a message from Director of Human Resources Sue Trobaugh (Trobaugh). At about
8:31 a.m. Samayoa told the employees in the cafeteria to go back to work if they were not on a
break. Vargas said the employees were not moving and they wanted to speak to Coonley or
Cook. Samayoa said Coonley was not in the hotel and Vargas replied they needed to speak
with Cook. At 8:35 a.m. Samayoa left the cafeteria. At 8:44 a.m. Samayoa returned to the
cafeteria with Cano and Gallardo. Samayoa told the employees if they were not on break to go
back to work. Employees responded they were not going anywhere. Samayoa repeated
several times that if employees were not on break to go back to work; if they did not go back to
work to clock out and go home. Vargas responded that the employees were not going
anywhere. At about 8:53 a.m. Samayoa went back into the cafeteria with Cano and Gallardo.
Samayoa said if the employees were not on break to go back to work and if they did not return
to work they would be suspended one by one. Gallardo began writing down employees’ names.
At 9:07 a.m. Chief of Security Graham Taylor (Taylor) told employees that if they were
suspended they could not remain in the cafeteria. Vargas said the employees were not leaving.
As shown on the security video,14 at 10:15 a.m. the employee committee left the cafeteria. At
10:30 a.m. Samayoa told Brentner and two others in the cafeteria that they were suspended. At
10:40 a.m. Taylor went into the cafeteria and the police officer told employees they had to leave
the cafeteria.

13 This group left the cafeteria at about 10:15a.m.
14 R. Exh. 24
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According to Gallardo, around 8:05-8:15 a.m. he heard over his radio that Samayoa
needed help in the employee cafeteria. Gallardo claims employees were yelling and screaming.
Gallardo met with Samayoa and Samayoa told employees if they were not on break to go back
to work. Several employees including Vargas said they were waiting to meet with Cook or
Coonley. At 8:33 a.m. Gallardo got a call in the kitchen from Trobaugh who said to tell
Samayoa to inform the employees if they were not on break to go back to work. Samayoa told
employees if they were not on break they had to return to work. If they did not return to work
they had to swipe out and go home. Gallardo again spoke with Trobaugh who told him to tell
Samayoa to tell the employees if they were not on break to go to work and if not they should
swipe out, and be suspended pending investigation. Gallardo gave this message to Samayoa
who repeated it to the employees. The employees refused to leave so once again Gallardo
spoke with Trobaugh on the phone. Trobaugh told Gallardo to tell Samayoa to tell employees
the same message and to suspend employees one by one. Samayoa relayed the message and
began asking employees if they were returning to work. Gallardo wrote employees names
down who were suspended.15 At about 9:00 a.m. Taylor told employees they were suspended
and had to leave or be considered trespassing and be removed by the police. Vargas told
employees Taylor the employees were not leaving. Later, when Vargas returned to the
cafeteria with the committee, he told the employees they had been suspended and they began
leaving the cafeteria.
Contrary to Respondent’s assertions there is no evidence that the employee meeting in
the cafeteria prevented any employees from getting food service or coffee.16 During the
walkout, the restaurants were serviced by 15-20 members of Respondent’s hotel staff including
restaurant managers and other management staff.
Respondent’s argument that the walkout adversely impacted its ability to clean guest
rooms is likewise unsupported by the record. As half of the employees suspended were
employed in Housekeeping Services, there were some rooms that were not cleaned the day of
the work stoppage, however, there is no evidence as to how many rooms were not cleaned.17
b. The Analysis
Both General Counsel and Charging Party take the position that the employees who
gathered in the cafeteria on May 11, 2006 were engaged in an on the job work stoppage that is
protected under the Act. Respondent contends that the work stoppage was unprotected under
the Act.
For over four decades it has been settled that an in-plant work stoppage by
unrepresented employees may be protected-concerted activity under the Act even though no
specific demand is made. In N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 (1962) the

15 R. Exh. 20
16 In its brief Respondent cites testimony that employees could not use the cafeteria and
that unnamed employees chose not to use the cafeteria. I rejected this evidence as hearsay
and it will not be considered herein. See Tr. at 1546, lines 22-25 to page 1548, lines 1-11 and
Tr. at 2095, lines 23-25 to page 2097, lines 1-11. In fact employee St. Wenceslaus Lawrence
was able to get coffee in the cafeteria at 9:00 a.m.
17 Respondent’s suggestion in its brief that 500 rooms were not cleaned misstates the
testimony. Trobaugh testified that there were 500 rooms, “. . . that were not covered to clean.
So, we started calling temp agencies.” There is no evidence as to how many of the 500 rooms
were cleaned by other employees.
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Supreme Court upheld a Board decision finding that an employee walkout, protesting the
extreme cold conditions of their workplace, was protected-concerted activity although the
employees made no specific demand upon the employer to remedy the lack of heat.
Recently in Quietflex Manufacturing Co., 344 NLRB 1055 (2005), a divided three-
member panel of the Board found that an employer lawfully discharged 83 employees who
engaged in a peaceful 12-hour work stoppage in the employer’s parking lot to protest working
conditions. The Board cited 10 factors to weigh in striking a balance between employees
Section 7 rights and the private property rights of employers:
(1) the reason the employees have stopped working.
(2) whether the work stoppage was peaceful.
(3) whether the work stoppage interfered with production, or deprived the
employer access to its property.
(4) whether employees had adequate opportunity to present grievances to
management.
(5) whether employees were given any warning that they must leave the
premises or face discharge.
(6) the duration of the work stoppage.
(7) whether employees were represented or had an established grievance
procedure.
(8) whether employees remained on the premises beyond their shift.
(9) whether the employees attempted to seize the employer's property.
(10) the reason for which the employees were ultimately discharged.
In Quietflex at 1056, the Board did not give controlling weight to any one factor and
noted:
As the Board stated in Waco, supra, “the precise contours within which such [a
work stoppage] is protected cannot be defined by hard-and-fast rules. Instead,
each case requires that many relevant factors be weighed.” 273 NLRB at 746.
Further, “the locus of [the] accommodation [between employer and employee
rights] . . . may fall at differing points along the spectrum depending on the nature
and strength of the respective Section 7 rights and private property rights
asserted in any given context.” Hudgens v. NLRB, 424 U.S. 507, 522 (1976).
In striking the balance in favor of private property rights in Quietflex, first the Board found
the following factors in favor of Section 7 rights: the employees stopped working to protest
working conditions; the work stoppage was peaceful; production was not seriously affected; the
employer was not deprived of access to its property; the employees were unrepresented; there
was no established grievance procedure; and the employees did not seize or destroy the
employer’s property. The Board then found that the employer’s private property rights
outweighed Section 7 rights based on the following factors: the work stoppage lasted 12 hours;
the employees presented their grievances to management, although not all of their demands
were met; the employees were told after over 11 hours of protest that they had to leave the
premises by 7pm or face discharge; and the employees were fired for not leaving the
employer’s property rather than for engaging in protected-concerted activity.
In striking this particular balance the Board majority reasoned, “However, after many
hours of protest, the employees' continued presence on the Respondent's property no longer
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served an immediate protected interest, and the Respondent was entitled to assert its private
property right.”18
I will consider each of the 10 Quietflex factors in striking a balance between
Respondent’s property rights in its cafeteria and the employees’ Section 7 rights to engage in
joint action for their mutual aid and protection.
First, it is clear that the employees were engaged in protected-concerted activity in
gathering to protest the suspension of a fellow employee. The Board has long held that
employee protests regarding employee discipline are protected even if the discipline was lawful.
Pepsi Cola Bottling Co. of Miami Inc., 186 NLRB 477 (1970).
Second, there is no dispute as to the peacefulness of the employee work stoppage.
Third, there is no evidence, as noted above, that the employee work stoppage interfered
with production, or deprived the employer of access to its property, including the cafeteria. The
record is devoid of evidence that hotel guests were not served food, had clean rooms available
or that other employees were denied access to the cafeteria. Further, it is not considered an
interference with production where employees do no more than withhold their own labor as was
the case here. Quietflex, supra at footnote 6.
Fourth, at no time were the striking employees given an opportunity to present their
grievances concerning the suspension of Reyes to Respondent’s management as neither of the
managers the employees asked to speak to chose to be present. The record establishes that
as early as 8:15 a.m. employees told supervisors and agents of Respondent that they wanted
to speak to Coonley or Cook about the Reyes suspension. Even assuming for the sake of
argument that the gathered employees did not tell Samayoa why they wanted to speak to
Coonley or Cook, it is irrelevant as neither Cook nor Coonley chose to listen to their employee
grievances. That Respondent’s privacy policy may have prevented managers from discussing
with employees the details of the Reyes suspension is likewise irrelevant, since it is the
presentation of the employees’ grievance to management that was the immediate protected
interest. As long as management refused to provide the employees with an opportunity to
present their grievance, it continued to be an immediate protected interest.
Fifth, the employees were told that they should return to work and later were told that if
they did not return to work they had to leave the Respondent’s facility or face suspension.
There is some disagreement as to the precise time employees were given these warnings.
However, there is no dispute that employees began gathering in the employee cafeteria at
about 8:00 a.m. in order to present their grievance concerning the Reyes discharge to
management. Using Respondent’s timeline, based upon the security tapes, at 8:26 a.m.
Samayoa told employees if they were not on break to return to work, at 8:32 a.m. Samayoa told
employees to return to work or clock out and go home and at 8:57 a.m. Samayoa told
employees if they did not return to work or go home they would be suspended. Samayoa began
suspending employees, an hour after the employees first gathered to present their grievance.
At about 10:15 a.m., having failed to meet with management to present their grievances, a
group of employees went to speak with Cook for the purpose of telling management that the
employees wanted to return to work. Instead the employees were told they had been
suspended and were told it was alright if they returned to the cafeteria to tell employees they
had all been suspended.

18 Quietflex at 1059.
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Sixth, the work stoppage was barely an hour old before Samayoa began suspending
employees for failure to return to work or go home. The work stoppage was just over two hours
old when employees indicated they would return to work but were refused because they had
been suspended. Finally, the work stoppage was under three hours old when all employees
vacated Respondent’s premises. See City Dodge Center, supra fn. 5 (stoppage protected
where all employees left the plant within 2 hours); Golay & Co. supra fn. 6 (protected stoppage
lasted 1½-2 hours); Liberty Natural Products, supra fn. 10 (protected stoppage lasted 15-30
minutes); Central Motors Corp., 269 NLRB 209 (1984) (“short-lived” stoppage was found
protected); Kenneth Trucks of Philadelphia, 229 NLRB 815 (1977), enfd. 580 F.2d 55 (3d Cir.
1978) (protected stoppage lasted one half hour); Benesight, Inc., 337 NLRB 282 (2001) (“brief”
work stoppage protected by Sec. 7); compare, Quietflex, 344 NLRB 1055 (approximately 12-
hour stoppage not protected); Cambro, 312 NLRB 634 (1993) (approximately 4-hour stoppage
resulted in forfeiture of Act's protection); Waco, Inc., 273 NLRB 746 (1976) (3-1/2 hour stoppage
overstepped the boundary of a protected, spontaneous work stoppage).
Seventh, there is no argument that Respondent’s employees were unrepresented.
However, Respondent contends that there was an established grievance procedure, its “open
door policy.” The “open door policy” is found in Respondent’s Team Member Handbook at
page 16.19 The policy states:
Hilton Los Angeles Airport is proudly committed to maintaining an open door
policy. Any discrimination or recrimination against a team member for presenting
an issue, problem or complaint is prohibited.
A team member should always attempt to work out problems with hi/her
immediate supervisor. If the issue or problem remains unsolved, the team
member can seek assistance from his/her department manager, the Director of
Human Resources and the General Manager.
Respondent also presented anecdotal examples of individual employees bringing their
individual concerns concerning equipment to their supervisors’ attention for resolution.
However, the Board found a similar “open door policy” in HMY Roomstore, Inc., 344 NLRB 963
(2005) addressed only individual complaints and not group grievances like the one presented in
the instant case.
Eighth, there is no evidence that employees remained on Respondent’s premises
beyond their shift.
Ninth, there is no evidence that the employees attempted to seize Respondent’s
property. There is no evidence that the employees gathered in the cafeteria prevented either
management or other non-striking employees from using the cafeteria. The employees left
peacefully after two hours and forty five minutes when Respondent refused to allow them to
return to work.
Tenth, the Suspension Notices20 issued to employees note:

19 R. Exh. 28.
20 GC Exh. 11.
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On Thursday, May 11, 2006 you were asked to go back to work or clock out and
go home at least three times by a hotel manager. You refused to do either of
these. You were then suspended pending investigation for insubordination due
to you refusal to abide by a reasonable request from a manager.
At the time employees were told to go back to work or go home, the work stoppage was
less than an hour old. When employees refused to leave, suspensions immediately took place.
However, at the time the suspensions were announced only an hour had elapsed from the time
the work stoppage had commenced. At the time employees were told to go home or be
suspended, the employees were still engaged in a protected activity.
In considering all 10 Quietflex factors, I find that the balance falls on the side of
employees’ right under Section 7 of the Act. The employees withheld their labor in protest of
discipline given to a fellow employee and thus engaged in protected-concerted activity. The
employees took this action in the context of having no collective bargaining representative to
assist them and in the absence of an effective employer grievance procedure that addressed
group grievances. The work stoppage itself was peaceful and did not interfere with the
operation of the hotel or Respondent’s property, unlike a prolonged sit down strike in a
production area. Moreover, Respondent was non-responsive to the employees’ grievance,
choosing to ignore the employees’ attempts to speak with management. The work stoppage
was of short duration, lasting less than an hour before Respondent warned employees that they
had to return to work, go home or be suspended. Employees were suspended less than hour
after the work stoppage began. After their attempts to return to work were rebuffed at
10:15 a.m., no employee remained on Respondent’s property after their shift or attempted to
seize Respondent’s property. Finally, given the fact that employees were engaged in protected
activity at the time they were suspended and that the employees' continued presence on the
Respondent's property at the time of their suspension still served an immediate protected
interest, as management had yet to hear and consider the employees’ grievance, the
Respondent was not yet entitled to assert its private property right. Accordingly, Respondent
had no valid reason to suspend its employees other than for the assertion of their rights
guaranteed under Section 7 of the Act.
I find that in suspending 77 of its employees for five days, Respondent violated Section
8(a)(1) of the Act as alleged.
B. The 8(a)(3) Allegations
1. The August 24, 2006 Warning of Nathalie Contreras
a. The Facts
Complaint paragraphs 20, 23 and 24 allege that on August 24, 2006 Respondent issued
employee Nathalie Contreras (Contreras) a written warning because she placed posters in the
employee cafeteria protesting insults front desk employees had received from hotel guests and
managers in violation of section 8(a)(1) and (3) of the Act.
Guest Services Agent Contreras worked at Respondent’s front desk checking guests in
and out of the hotel. Contreras engaged in various union activities including attending a Union
sponsored meeting on January 30, 2006 in the hotel basement in front of the Human Relations
office where all the employees wore Unite Here t-shirts. The employees advised a security
guard who was present in front of the Human Relations office that the employees were there to
announce that they were there to tell management that they were organizing a union. A day or
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two later Contreras met with Hirschsohn and told her that she was a member of the Union
organizing committee. Contreras also participated in a March 2006 meeting of 8-10 employees
who went to speak with Eric Burkhart about an employee who had participated in a Union picket
line and had recently been fired. Burkhart told the employees they were not supposed to be at
his office since it was not a work area. Contreras said Burkhart had an open door policy but
Burkhart pointed to the employees and told them to get back to work as his area was not a work
area.
In the past, hotel guests had sworn at Contreras and she had complained to Burkhart
but according to Contreras he had not resolved the situation. In 2006 a hotel guest had called
Contreras a “bitch” and she immediately complained to Burkhart who came out to the front desk
and while apologizing to the customer for the inconvenience of not getting the room he wanted,
did not confront the guest about the name he had called Contreras. On another occasion a
guest called Contreras a “crack head” and Burkhart did not confront the guest but thought the
comment was funny. This situation had happened in the past to Contreras and other front desk
employees.
After discussing the hotel guests’ harassment of employees by her co-workers, in order
to protest her treatment by hotel guests, on August 24, 2006, Contreras and co workers put up
four 18 inch by 24 inch posters21 in the employee cafeteria without management’s permission.
The posters depicted Guest Services Agents of Respondent. During her lunch break on
August 24, 2006 Contreras made a presentation to 15-20 co workers in the cafeteria. Contreras
said she was putting up the posters because she had been called names by hotel guests.
Other employees said they too had been called inappropriate names by hotel guests. Included
among the terms written on the posters were: bitch, idiot, sexy, cry baby, crack head, ignorant,
stupid, moron, hottie and incompetent. According to Contreras, in the past there had been other
posters on the cafeteria walls depicting holidays or themes such as the Fourth of July or Cinco
de Mayo.
On August 28, 2006, Contreras was called to Trobaugh’s office where she was told that
her posters violated Respondent’s Harassment Free Workplace Policy Contreras then received
a written warning22 for posting information that violated that policy. The warning provided in
part:
On Thursday, August 24, 2006, Nathalie posted unauthorized information in the
cafeteria that violates the hotel’s “Harassment Free Workplace Policy.
Specifically, Nathalie displayed a posting containing several offensive words,
including ”bitch”, “Sexy” and “Moron.” Displays of such visual conduct may be
considered offensive by others and create an intimidating, or hostile work
environment.
Respondent’s Harassment Free Workplace Policy23 provides in pertinent part:
The conduct prohibited by this policy includes all unwelcome conduct, whether
verbal, physical, or visual, that is based upon a person’s protected status, such
as sex, color, race, ancestry, religion, national origin, age, disability, medical
condition, martial (sic) status, veteran status, citizenship status, sexual

21 Jt. Exhs. 1-4. There were two identical posters, two in English and two in Spanish.
22 GC Exh. 4.
23 R. Exh. 28, at 17-18.
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orientation, or other protected group status or upon the protected status of the
person’s relatives, friends, or associates.
The conduct forbidden by this policy specifically includes, but is not limited to: (a)
epithets, slurs, negative stereo-typing, or intimidating acts that are based on a
person’s protected status; and (b) written or graphic material circulated within or
posted with in the workplace that shows hostility toward a person because of his
or her protected status.
Sexual harassment is a problem that deserves special mention. Unwelcome
sexual advances, requests for sexual favors and other verbal, physical or visual
conduct based on sex constitutes harassment when (a) submission to the
conduct is made as a condition of employment, (2) submission to or rejection of
the conduct is used as a basis for an employment decision, or (3) the conduct
creates an intimidating, hostile or offensive working environment.
Sexual harassment includes conduct based on sex, whether directed towards a
person of the opposite or same sex. Sexual harassment is not limited to explicit
demands for sexual favors. It also may include such actions as (1) sex-oriented
verbal kidding, teasing or jokes; (2) repeated sexual flirtations, advances or
propositions; (3) continued or repeated verbal abuse of a sexual nature; (4)
graphic or degrading comments about an individual or his or her appearance; (5)
the display of sexually suggestive objects or pictures; (6) subtle pressure for
sexual activity; and (7) physical contact such as patting, hugging, pinching, or
brushing against another person’s body.
According to Trobaugh she felt the words contained on Contreras’ posters, including the
terms bitch, sexy and hottie were inappropriate and violated the hotel’s Harassment Free
Workplace Policy.
b. The Analysis
General Counsel contends that Contreras’ conduct in putting up the posters was both
union and protected-concerted activity. Respondent argues that since it properly disciplined
Contreras for violating Respondent’s harassment policy, she was not engaged in protected-
concerted activity.
In Meyers Industries, 268 NLRB 493, 497, (Meyers I) and Meyers Industries, 281 NLRB
882, (Meyers II) the Board defined when an individual engages in concerted activity for other
mutual aid or protection. The Board in Meyers I stated,
In general, to find an employee's activity to be "concerted," we shall
require that it be engaged in with or on the authority of other
employees, and not solely by and on behalf of the employee
himself. Once the activity is found to be concerted, an 8(a)(1)
violation will be found if, in addition, the employer knew of the
concerted nature of the employee's activity, the concerted activity
was protected by the Act, and the adverse employment action at
issue (e.g., discharge) was motivated by the employee's protected
concerted activity. Meyers Industries, 268 NLRB 493, 497,
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In Meyers II, the Board emphasized that its definition of concerted activity included
individual activity where, “individual employees seek to initiate or to induce or to prepare for
group action, as well as individual employees bringing truly group complaints to the attention of
management.” Meyers Industries, 281 NLRB 882, 887.
Employees do not have to accept the individual’s call for group action before the
invitation itself is considered concerted. Whittaker Corp., 289 NLRB 933, 934 (1988); El Gran
Combo, 284 NLRB 1115 (1987). The Board in Meyers II held that, “the activity of a single
employee in enlisting the support of his fellow employees for their mutual aid and protection is
as much ’concerted activity’ as is ordinary group activity.” Owens-Corning Fiberglass Corp., v.
NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969).
Once the General Counsel has established its prima facie case under Meyers I and II,
the burden shifts to the Respondent to show that the same action would have taken place in any
event. Wright Line, 251 NLRB 1083, (1980).
Contreras joined with her fellow employees to protest what they perceived as
Respondent’s failure to protect them from unwanted harassment from hotel guests by putting up
posters in the employee cafeteria during their break time depicting front desk workers. The
posters contained inappropriate names front desk clerks had been called by hotel guests and
the posters encouraged other employees to write on the posters inappropriate names they had
been called by guests. Clearly, Contreras and her fellow employees were engaged in
protected-concerted activity. It is likewise clear that Respondent issued discipline to Contreras
for engaging in protected activity, i.e. joining with co-workers in protesting being called
inappropriate names by hotel guests. Thus, General Counsel has established a prima facie
case under Meyers. The question remains was Contreras validly disciplined because she
violated Respondent’s harassment policy.
Respondent essentially takes the position that it is a violation of its harassment policy for
co-workers to communicate with one another or with management about harassment to which
they have been subject. There is no evidence that Contreras used any of the terms listed on
the posters against another employee or that any employee complained about the posters.
Respondent would have to torture its own definition of sexual harassment in subparagraph four
of its Harassment Free Workplace Policy in order to conjure up a violation by Contreras. It turns
the Harassment Free Workplace Policy on its head to suggest that Contreras and others, who
were victims of sexual harassment by hotel guests and managers who took no action, somehow
violated the policy themselves by communicating with one another about the harassment.
Respondent contends that it has uniformly applied the Harassment Free Workplace
Policy and disciplined other employees who violated the policy. However, the examples24 cited
by Respondent are clearly inapposite as they apply to situations where one employee directed
foul language or threats against another employee. Here Contreras never directed
inappropriate language toward another employee but rather communicated that such comments
had been directed toward her and other employees by hotel guests.
I find that the application of Respondent’s Harassment Free Workplace Policy in
Contreras’ discipline was a pretext for retaliating against her protected- concerted activity.

24 R. Exhs. 35-42.
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I find further that Respondent violated Section 8(a)(1) of the Act in disciplining Contreras.
However, I find no violation of Section 8(a)(3) of the Act, as the discipline was motivated only by
Contreras’ protected-concerted activity that was independent of her union activity.
2. The June 2006 Warnings to Employees
a. The Facts
Complaint paragraph 21 alleges that on June 7, 2006, Respondent issued written
warnings to employees Isabel Brentner (Brentner), Lilia Magallon (Magallon), Isabel Salinas
(Salinas) and Joanna Gomez (Gomez) and Complaint paragraph 22 alleges that on June 10,
2006, Respondent issued a written warning to employee Patricia Simmons (Simmons) because
the employees engaged in union and other protected concerted activities.25
i. The Simmons Warning
Simmons had openly participated in union meetings at the Hotel, including the
January 30, 2006 meeting at the Human Resources office where employees gathered to tell
Respondent they wanted union representation, and in the May 11, 2006 employee cafeteria
work stoppage. There is no dispute that Respondent was aware that Simmons was a union
supporter.
On the weekend of June 2-4, 2006, the California Teachers Association (CTA) was
conducting a meeting at Respondent’s facility. In addition to other facilities, CTA was using two
of Respondent’s ballrooms on the hotel lobby level, including the International Ballroom. On
June 2, 2006, Simmons, a Waitress in one of Respondent’s restaurants, was asked by CTA to
speak to its members gathered in the International Ballroom about the suspension of
Respondent’s employees on May 11, 2006. Simmons agreed to speak if it was while on her
break.
On June 3, 2006, while on her lunch break, Simmons addressed the CTA members
gathered in the International Ballroom for about 10 minutes. Simmons explained that
Respondent’s employees had been suspended on May 11, 2006 because they wanted to ask
management about a co worker who had been fired. There were hundreds of CTA members in
the ballroom but Simmons did not see Magallon or Salinas in the Ballroom. Simmons returned
to work on time.
After she punched back in to work, Simmons met Callera and Cook. Cook asked
Simmons where she had been. Simmons said she had been on break. When Cook asked
where she had been, Simmons said she was in the International Ballroom at the CTA
convention. Cook said she was not supposed to be there. When Simons asked why not Cook
replied that it was hotel policy that she could take a break only in the employee cafeteria.
Simmons told Cook that over the past 20 years she had been in other guest events in the
hotel’s ballrooms including AMMA. Simmons said she had never been told by a supervisor not
to attend guest events at the hotel.
On June 10, 2006, Simons received a written warning that states:26

25 Respondent stipulated that it knew of Brentner, Magallon, Salinas, Gomez and Simmon’s
union activities. Tr. at 2258.
26 GC Exh. 6.
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On Saturday, June 3, 2006, you were seen in an inappropriate area of the Hotel
(International Ballroom) while on your break.
The hotel’s Team Member Handbook specifically states that it is a violation of
company policy for being in an unauthorized or non-designated work or guest
areas (sic) during scheduled work periods, or on your days off, without your
supervisor’s or management’s specific authorization.
Prior to May 4, 2006, Respondent’s policy concerning use of Hotel facilities by its
employees was set forth in its Team member Handbook.27 The policy stated:
TEAM MEMBERS ON PREMISES
Only those team members scheduled for work are authorized to be on Hotel
property. You should arrive on property no more than 30 minutes prior to the
start of your shift, and must leave the property within 30 minutes from the end of
your shift. The only exceptions to this rule are for situations in which you are
picking up paychecks, or coming in at the request of your team leader or Human
Resources.
USE OF PUBLIC AREAS
During working hours, team members are not permitted to use the public areas of
the Hotel, unless specifically assigned. These areas include, but are not limited
to: guest elevators, the lobby, and banquet and guest rooms. Unless you have
been assigned to be in a public area, your presence there is unauthorized.
On May 4, 2006, Respondent issued a revised policy dealing with employees’ use of
hotel facilities when off duty28. The policy provides:
Use of Location Facilities by Off-Duty Team Members
Team members who are “off duty” (i.e., time which a team member is not being
compensated to perform job duties, or on a bona fide rest period) may not enter
or remain in the hotel’s working areas, except for one of the following reasons:
Paycheck pick-up
Attendance at a department meeting (paid time)
Attendance regarding their employment (i.e. benefits, disciplinary
meeting)
Attendance at a Hilton-sponsored team member function
Team members are requested to provide advance notice to the hotel’s senior
manager or his or her designee of attendance at any non-Hilton sponsored
function. Team members are asked to provide as much advance notice as
possible for legitimate business reasons.

27 R. Exh. 28, page 60-61.
28 GC Exh. 5.
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* * *
This policy does not prevent off-duty team members from enjoying, as a guest,
the Hotel’s facilities such as the restaurant. However, for security and other
business reasons, team members are requested to provide advance notice to
and obtain the approval of the Hotel’s senior manager prior to such use.
ii. The Magallon Warning
On June 3, 2006, Lobby Attendant Lilia Magallon (Magallon) worked the 7:00 a.m. to
3:30 p.m. shift, cleaning the lobby area, including the area outside the International Ballroom.
Magallon testified that at no time on June 3, 2006 did she enter the International Ballroom while
CTA was conducting a meeting.
Respondent stipulated that it knew of Magallon’s union activities and Magallon
participated in the May 11, 2006, work stoppage and a February 2006 meeting with Coonley in
the housekeeping department where she spoke to Coonley about union representation.
On June 7, 2006, Magallon received a written warning from Samayoa for being in an
inappropriate area of the hotel while during working hours while not on her break. 29 During the
meeting with Samayoa where she was given the warning, Magallon denied being in the
International Ballroom on June 3 but said that she was cleaning the trashcans outside the
International Ballroom on June 3.
iii. The Brentner Warning
Izabel “Segunda” Brentner (Brentner) was working as a Lobby Attendant on June 3,
2006. Her duties include cleaning the International Ballroom as needed. Brentner openly
participated in the May 11, 2006 work stoppage as well as the January 30, 2006 employee
meeting at the Human Resources office to demand union representation. While on her lunch
break on June 3, 2006, Brentner was asked by the CTA to address its membership in the
International Ballroom. Brentner spoke to the CTA group for about 15 minutes and thanked
them for donations they had given to the 77 employees Respondent had suspended on May 11,
2006. Brentner saw neither co-worker Juana Salinas nor Lilia Magallon in the International
Ballroom when she spoke. Brentner returned to work at about 11:30a.m.
On June 7, 2006 Brentner received a written warning30 from Samayoa for being in an
inappropriate area of the hotel (International Ballroom) on June 3, 2006, during working hours
when not on a break.
iv. The Salinas Warning
Respondent’s Lobby Attendant, Juana Isabel Salinas (Salinas) took part in the May 11,
2006 work stoppage although she did not play a prominent role. On June 3, 2006 Salinas was
working as a Lobby Attendant and her duties included cleaning trash cans outside the
International Ballroom. Salinas was working with co worker Joanna Gomez (Gomez), cleaning
the area around the International Ballroom. Salilnas denied that she entered the International
Ballroom on June 3, 2006. However on June 7, 2006, Salinas received a written warning31 from

29 GC Exh.7.
30 GC Exh. 9.
31 GC Exh. 10.
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Samayoa. At the meeting when Samyoa gave Salinas the warning, Samayoa said the warning
was for entering the International Ballroom when CTA was present. Salinas denied being in the
ballroom but rather had been cleaning the trash near the ballroom.
v. The Gomez Warning
Respondent’s Public Area Attendant Joanna Gomez also received a written warning32
for being in the International Ballroom on June 3, 2006, during working hours when not on a
break. Gomez did not testify and there is no evidence of her protected-concerted activity,
although she was suspended for engaging in the May 11, 2006 work stoppage.33 Respondent
stipulated to knowledge of Gomez’s union activity.
vi. Respondent’s Investigation
Respondent’s Assistant Director of Human Relations, Rochelle Romo (Romo), reviewed
the security tape from June 3, 2006, in and around the International Ballroom. After reviewing
the tapes, Romo gave a summary to Trobaugh of her investigation. Based on the tapes,
Respondent issued the written warnings to Gomez, Magallon, and Salinas. However, as
Respondent admits, while the tapes show Gomez, Magallon, and Salinas were in the vicinity of
the International Ballroom doors, they fail to establish that Gomez, Magallon, or Salinas ever
entered the Ballroom. Romo never interviewed any of the housekeepers as part of her
investigation.
Trobaugh testified that Respondent has previously disciplined employees for being in
unauthorized areas of the hotel. 34 One employee was disciplined in 2005 for driving a hotel
shuttle van to an unauthorized location for personal use, two employees were disciplined in
2005 for using the hotel pool while off duty and another employee was disciplined in July 2006
for collecting cans and bottles in unauthorized areas of the hotel.
b. The Analysis
General Counsel contends that Respondent violated Sections 8(a)(1) and (3) of the Act
by disciplining Brentner, Magallon, Salinas, Gomez and Simmons and disparately enforced its
Use of Location Facilities policies concerning presence of off duty employees in working areas
of the hotel as a result of their union and protected concerted activity.
Charging Party argues that Respondent violated Section 8(a)(1) of the Act in disciplining
Simmons in applying its Use of Location Facilities policy to preclude Simmon’s solicitation of
support from the CTA. Charging Party also takes the position that Respondent violated Section
8(a)(3) of the Act in disciplining Brentner, Magallon, Salinas, and Gomez for engaging in union
activity.
Respondent denies it violated Section 8(a)(1) or (3) of the Act and issued discipline
pursuant to its consistently applied policies which Brentner, Magallon, Salinas, Gomez and
Simmons violated.

32 GC Exh. 18.
33 GC Exh. 1(n), appendix A at 2.
34 R. Exhs. 31-34.
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Soliciting support or sympathy from the general public in furtherance of issues involving
terms and conditions of employment is activity protected by Section 7 of the Act. Alaska Pulp
Corp., 296 NLRB 1260 (1989).
As noted above the Board has found that once an individual has engaged in protected-
concerted activity, an 8(a)(1) violation will be found if the employer knew of the protected-
concerted activity and the discipline was caused by the employee’s protected-concerted activity.
Meyers I and II supra.
Once the General Counsel has established its prima facie case under Meyers I and II,
the burden shifts to the Respondent to show that the same action would have taken place in any
event. Wright Line, 251 NLRB 1083, (1980).
In order to find a violation of Section 8(a)(3) of the Act, the General Counsel has the
initial burden of establishing that union activity was a motivating factor in Respondent’s action
alleged to constitute discrimination in violation of Section 8(a)(3) of the Act. The elements
required to support such a prima facie violation of Section 8(a)(3) are union activity, employer
knowledge of the activity, and a connection between the employer’s anti union animus and the
discriminatory conduct. Once General Counsel has established its prima facie case, the burden
shifts to Respondent to show that it would have taken the disciplinary action even in the
absence of protected activity. Wright Line, 251 NLRB 1083 (1980).
Motive or animus may be inferred from all of the circumstances in the absence of direct
evidence. A blatant disparity is sufficient to support a prima facie case of discrimination. Flour
Daniel. Inc., 304 NLRB 970 (1991). As stated by the Board: ”A pretextual reason, of course,
supports an inference of an unlawful one.“ Keller Manufacturing Co., 237 NLRB 712, 717
(1978).
The disparate nature of discipline, the unprecedented scope of an investigation, the
absence of a cogent reason for conducting such an investigation, and the failure to afford a
discriminatee any opportunity to answer the allegations raised by the investigation are factors
that have repeatedly been found adequate to infer discriminatory motivation. Tubular Corp. of
America 337 NLRB 99 (2001)
It is clear that both Brentner and Simmons were engaged in protected-concerted activity
at the time they addressed members of the CTA in Respondent’s International Ballroom
concerning the May 11, 2006 work stoppage and suspension of employees. Respondent was
aware that both that both Brentner and Simmons were present at the CTA meeting but there is
no evidence that Respondent knew that Brentner, Simmons, Magallon, Salinas, or Gomez
either addressed the CTA, knew what they said or knew that they had participated in the CTA
meeting in any way.35 There is nothing on the face of the written warnings each of the
employees received that suggests the discipline was for speaking to the CTA rather than for
being in an unauthorized part of the hotel. Respondent was aware that all five employees
participated in the May 11, 2006 work stoppage, although none played a prominent role. I find
there is no evidence Respondent had knowledge the five employees engaged in protected-
concerted or union activity on June 3, 2006 and that their May 11, 2006, protected-concerted
activity played no role in their June 2006 discipline.

35 While there is some evidence that Brentner’s address to the CTA could be heard over a
PA system outside the International Ballroom, there was no evidence that any supervisor or
agent of Respondent heard Brentner via the PA system.
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Respondent has stipulated that it was aware that all five employees disciplined had
engaged in union activity.
General Counsel contends that Respondent’s discriminatory motive is supplied by
Respondent’s failure to adequately investigate the employees’ alleged misconduct by failing to
interview them and by discriminatorily applying its new Use of Location Facilities policy.
With respect to General Counsel’s first contention, while Simmons and Brentner
admitted they were at the CTA meeting in the International Ballroom, a further investigation into
their presence would have revealed that they were there at CTA’s invitation. The investigation
into Magallon, Salinas and Gomez’ presence in the CTA meeting is more troubling, since they
were in the vicinity of the Ballroom performing their regular duties and Respondent’s evidence
failed to show that Magallon, Salinas and Gomez entered the International Ballroom. Despite
Respondent’s inconclusive evidence, no attempt was made to obtain Magallon, Salinas or
Gomez’ version of events.
With respect to the discriminatory application of the Use of Location Facilities policy
General Counsel contends that Respondent has allowed employees to attend other functions in
its ballrooms and under its new Use of Location Facilities policy off duty employees are not
required to have management’s permission to use the hotel’s facilities, as guests.
The record establishes that prior to June 2006, Respondent’s employees had attended
functions conducted by other organizations in the hotel ballrooms including AMMA, Conscious
Life Expo and the Emerald Ball without discipline. According to Respondent, employee
attendance was permitted because the outside organizations had told Respondent they would
permit Respondent’s employees to attend and Respondent had assented to their employees’
presence. However, in this case CTA not only assented to Simmons and Brentner’s presence,
it invited them to attend and address its meeting. A cursory investigation into the events would
have disclosed that Simmons and Brentner had CTA’s permission to attend their meeting and
thus were CTA’s guests. The uneven enforcement of Respondent’s policy likewise shows
disparate enforcement of its policy. Thus, while Respondent cited four examples of
enforcement of its policy for being in unauthorized areas of the hotel, two disciplines involved
being in an unauthorized area, the hotel pool, one discipline was for personal use of a hotel
shuttle and the other was for collecting cans. Yet in 2006 Respondent knowingly tolerated
violation of its use of public areas policy when it knew employees were using public restrooms
near the lobby café. No investigation was conducted and no discipline issued. Moreover, the
language itself of Respondent’s amended use of public areas policy did not require
management’s permission for off duty employees to use public areas of the hotel as guests or to
attend non-hotel functions. The new policy only requests employees to seek advanced
permission of management.
It is apparent that Respondent’s application of its new Use of Location Facilities by Off-
Duty Team Members Policy was disparately applied and was used as a pretext to discipline its
employees it knew had engaged in union activity. Respondent’s investigation into violation of its
policy did not attempt to elicit the employees’ version of facts which would have disclosed that
Simmons and Brentner had CTA’s permission to attend the meeting, consistent with
Respondent’s policy that no longer required advanced permission of management to attend
outside functions. Interviews with Magallon, Salinas and Gomez would have disclosed they did
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not enter the CTA meeting but consistent with the security videos36 were performing their usual
duties cleaning the lobby near the Ballroom. In view of all of the above, I conclude that
Respondent’s reason for issuing discipline to Simmons, Brentner, Magallon, Salinas and Gomez
does not stand scrutiny and provides the motivation for the discipline, the employees’ union
activity. Tubular Corp. of America, supra; Flour Daniel. Inc., supra; Keller Manufacturing Co.,
supra. Having so found, Respondent can not satisfy its burden under Wright Line to establish it
would have disciplined the employees in the absence of their union activity.
I find that Respondent issued written warnings to Simmons, Brentner, Magallon, Salinas
and Gomez in violation of Section 8(a)(3) of the Act but in the absence of knowledge of their
protected-concerted activity did not violate Section 8(a)(1) of the Act.
The Back Pay Specification
The parties stipulated at the hearing that the backpay amounts set forth in Appendix A
and B of the complaint were correct.37 However, with respect to employee Melvin Sampole,
Respondent had rescinded his suspension and made him whole. I find the backpay claims to
be supported by the record.
Conclusions of Law
On the basis of the above findings of fact and the record as a whole and Section 10(c) of
the Act, I make the following conclusions of law.
1. Respondent has been at all times material an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Charging Party is, and has been at all times material, a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by engaging in the following acts and
conduct:
a. Suspending 77 employees for engaging in protected-concerted activities.
b. Interrogating employees about union and other protected-concerted activities.
c. Physically pushing and touching employees for engaging in protected-concerted
activities.
d. Threatening employees with violence if they engaged in protected-concerted
activity.

36 Respondent contends that the videos lead to a reasonable inference that Magallon,
Salinas and Gomez entered the Ballroom. However, the tapes show only that Magallon,
Salinas and Gomez were out of camera view for no more than a minute, consistent with their
testimony that they were engaged in their normal cleaning duties. Given the tenuous nature of
this evidence, the failure to elicit their version of the events, leads to the inference of
discriminatory motivation. Tubular Corp. of America, supra.
37 Tr. at 24-25 and 204-207.
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e. Denying access to Respondent’s facility and threatening employees with trouble
if they entered the hotel because employees wore union insignia.
f. Threatening employees with suspension if they participated in protected-
concerted activity.
g. Issuing a written warning to employee Nathalie Contreras for engaged in
protected-concerted activity.
h. Threatening an employee with unspecified reprisals if they engaged in union
activity.
4. Respondents violated Section 8(a)(1) and (3) of the Act by issuing written warnings
to Isabel Brentner, Lilia Magallon, Isabel Salinas, Joanna Gomez and Patricia Simmons for
engaging in union activity.
5. The unfair labor practices described above are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
6. The Respondents did not otherwise violate the Act as alleged in the Consolidated
Complaint and the remaining complaint allegations will be dismissed.
Remedy
Having found that the Respondents violated the Act as set forth above, I shall order that
it cease and desist there from and post remedial Board notices addressing the violations found.
The Respondents having discriminatorily suspended employees, they must make them
whole for any loss of earnings and other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
Based upon the above findings of fact and conclusions of law, and on the basis of the
entire record herein, I issue the following recommended Order.38
The Respondent Fortuna Enterprises, L.P., a Delaware Limited Partnership d/b/a/ The
Los Angeles Airport Hilton Hotel and Towers, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Suspending employees for engaging in protected-concerted activities.
(b) Interrogating employees about union and other protected-concerted activities.

38 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.
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(c) Physically pushing and touching employees for engaging in protected-concerted
activities.
(d) Threatening employees with violence if they engaged in protected-concerted
activity.
(e) Denying access to Respondent’s facility and threatening employees with trouble
if they entered the hotel because employees wore union insignia.
(f) Threatening employees with suspension if they participated in protected-
concerted activity.
(g) Issuing written warnings to employees for engaging in union and other protected-
concerted activities.
(h) Threatening an employee with unspecified reprisals if they engaged in union
activity.
(i) 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 designated to effectuate the policies of the Act:
(a) Make whole the individuals named below, by paying them the amounts following
their names, with interest to be computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus tax withholdings required by Federal and state laws:
Juan Jimenez $696.19
Silviano Castillo $745.19
Agustin Vega $479.70
Juan Vizuete $513.44
Marco Zamudio $481.70
Rosario Mendoza $296.21
Alejandra Chamorro $194.40
Alicia Huizar $550.50
Benjamin Lopez $534.50
Francisco Diaz $642.37
Miguel Vargas $740.14
Patricia Simmons $743.51
Raul Gonzalez $544.13
Rigoberto Gomez $796.38
Wilfredo Matamoros $703.05
Alberto Barajas $599.42
Richard Acosta $584.37
Samuel Zambrano $579.21
Cliff Lai $446.93
Adela Barrientos $447.75
Amelia Luna $450.24
Ana Flamenco $450.24
Blanca De la Torre $432.14
Christopher Fawcett $429.75
Juliete Cabrera $447.75
Kathy Andrade $447.75
Lazaro Orellana $429.75
Lazaro Soto $474.22
Lenardo Reynoso $418.56
Lidia Zavala $418.56
Lilia Magallon $461.12
Lillian Alcantara $447.75
Manuel Alvarez $447.75
Maria Ceja $438.02
Maria Hernandez $418.56
Maria Martinez $440.44
Maria Nunez $471.60
Maria Osuna $458.40
Marina Rivera $432.14
Raquel Benitez $447.75
Reyna Vasquez $432.14
Rigoberto Matamoros $459.74
Rolando Romero $429.75
Rosa Vaca $422.59
Rosie Delgado $475.11
Ruben Can $440.16
Silvia Alvarez $447.75
St. Wenceslaus Lawrence $422.59
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Claudina Colomer $418.56
Concepcion Molina $450.24
Edith Garcia $432.14
Estela Cabreras $450.24
Eva Pulido $458.40
Fernando Gutierrez $437.80
Gloria Saldana $450.45
Guadalupe Perez $429.75
Immacula Rene $440.29
Isabel Brentner $467.10
Ivan Gomez $393.75
Jaime Chamul $416.25
Joanna Gomez $416.25
Jose Ayala $437.80
Josefina Castillo $474.22
Juana Salinas $474.22
Susana Argumedo $447.75
Victor Salgero $450.24
Zulma Jurado $422.59
Concepcion Ortiz $446.40
Jose Luis Garcia $499.27
Jose Molina $431.14
Maria Letona $422.45
Mauricio Hernandez $414.03
Fernando Vasquez $389.38
Fidel Andrade $457.48
Nieves Contreras $435.16
Ricardo Chapa $454.05
Total $36,052.74
(b) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful suspensions of the above named 76 employees, and the unlawful written warnings of
Nathalie Contreras, Patricia Simmons, Isabel Brentner, Lilia Magallon, Joanna Gomez, and
Isabel Salinas and within 3 days thereafter notify the employees in writing that this has been
done and that the suspensions and warnings will not be used against them in any way.
(c) Within 14 days after service by the Region, post at its 5711 West Century Boulevard,
Los Angeles, California facility copies of the attached notice marked “Appendix”39 in both the
English and Spanish languages. Copies of the notice, on forms provided by the Regional
Director for Region 31, after being signed by the Respondents’ authorized representative, shall
be posted by the Respondents 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 Respondent has gone out of
business or closed any of the facilities involved in these proceedings, the Respondents shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondents at any time since March 3, 2006.
(d) 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.

39 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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IT IS FURTHER ORDERED that the Consolidated Complaint is dismissed insofar as it
alleges violations of the Act not specifically found.
Dated, October 21, 2008.
_____________________
John J. McCarrick
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
After a trial at which we appeared, argued and presented evidence, the National Labor
Relations Board has found that we violated the National Labor Relations Act and has directed
us to post this notice to employees in both English and Spanish and to abide by its terms.
FEDERAL LAW GIVES EMPLOYEES 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
Chose not to engage in any of these protected activities
Accordingly, we give our employees the following assurances:
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT suspend you or issue you written warnings because you engage in union or
other protected-concerted activities.
WE WILL NOT interrogate you about your union and other protected-concerted activities.
WE WILL NOT physically push or touch you for engaging in protected-concerted activities.
WE WILL NOT threaten you with violence if you engage in protected-concerted activity.
WE WILL NOT deny you access to Respondent’s facility and threaten you with trouble if you
enter the hotel because you wear union insignia.
WE WILL NOT threaten you with suspension or unspecified reprisals if you participate in union
or protected-concerted activity.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the National Labor Relations Act.
WE WILL make whole the below named employees for any loss of wages and benefits, with
interest, that they suffered as a result of their suspensions:
Juan Jimenez
Silviano Castillo
Agustin Vega
Juan Vizuete
Marco Zamudio
Rosario Mendoza
Alejandra Chamorro
Alicia Huizar
Benjamin Lopez
Francisco Diaz
Miguel Vargas
Patricia Simmons
Raul Gonzalez
Rigoberto Gomez
Wilfredo Matamoros
Alberto Barajas
Richard Acosta
Samuel Zambrano
Cliff Lai
Adela Barrientos
Amelia Luna
Ana Flamenco
Blanca De la Torre
Christopher Fawcett
Claudina Colomer
Concepcion Molina
Edith Garcia
Estela Cabreras
Eva Pulido
Fernando Gutierrez
Gloria Saldana
Guadalupe Perez
Immacula Rene
Isabel Brentner
Ivan Gomez
Jaime Chamul
Joanna Gomez
Jose Ayala
Josefina Castillo
Juana Salinas
Juliete Cabrera
Kathy Andrade
Lazaro Orellana
Lazaro Soto
Lenardo Reynoso
Lidia Zavala
Lilia Magallon
Lillian Alcantara
Manuel Alvarez
Maria Ceja
Maria Hernandez
Maria Martinez
Maria Nunez
Maria Osuna
Marina Rivera
Raquel Benitez
Reyna Vasquez
Rigoberto Matamoros
Rolando Romero
Rosa Vaca
Rosie Delgado
Ruben Can
Silvia Alvarez
St. Wenceslaus Lawrence
Susana Argumedo
Victor Salgero
Zulma Jurado
Concepcion Ortiz
Jose Luis Garcia
Jose Molina
Maria Letona
Mauricio Hernandez
Fernando Vasquez
Fidel Andrade
Nieves Contreras
Ricardo Chapa
WE WILL remove from our files any reference to the unlawful suspensions of the above named
employees as well as the unlawful written warnings of Nathalie Contreras, Patricia Simmons,
Isabel Brentner, Lilia Magallon, Joanna Gomez, and Isabel Salinas and WE WILL not make
reference to the suspensions or written warnings in response to any inquiry from any employer,
employment agency, unemployment insurance office, or reference seeker and we will not use
the permanently removed material against you.
FORTUNA ENTERPRISES, L.P. A DELAWARE
LIMITED PARTNERSHIP D/B/A THE LOS
ANGELES AIRPORT HILTON HOTEL AND
TOWERS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Phoenix, Arizona Regional office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700, Los Angeles, California 90064-1824
(310) 235-7351, Hours: 8:30 a.m. to 5:00 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, (310) 235-7424.
THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS
Any interested individual who wishes to request a copy of this Notice or a complete copy of the Decision of which this
Notice is a part may do so by contacting the Board’s Offices at the address and telephone number appearing
immediately above. The final decision and this notice are available in either English or Spanish.
JD(SF)-43-08
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
FORTUNA ENTERPRISES, L.P.
A DELAWARE LIMITED PARNERSHIP
D/B/A THE LOS ANGELES AIRPORT
HILTON HOTEL AND TOWERS
and Cases 31-CA-27837
31-CA-27954
UNITE HERE, LOCAL 11 31-CA-28011
TABLE OF CONTENTS
Statement of the Case ...................................................................................................... 1
Findings of Fact ................................................................................................................ 2
I. Jurisdiction.............................................................................................................. 2
II. Labor Organization................................................................................................. 2
III. The Alleged Unfair Labor Practices....................................................................... 2
A. The 8(a)(1) Allegations ................................................................................... 3
1. The Incident Involving Front Desk Employee Ihab Judeh ......................... 3
a. The Facts .......................................................................................... 3
b. The Analysis...................................................................................... 3
2. The March 3, 2006 Interrogation of Molina. .............................................. 4
a. The Facts .......................................................................................... 4
b. The Analysis...................................................................................... 4
3. The Coercive Pushing of Employees by Banquet Chef Pablo Burciaga.... 4
a. The Facts .......................................................................................... 4
b. The Analysis...................................................................................... 5
4. The Threat to Employee Campos............................................................. 5
a. The Facts .......................................................................................... 5
b. The Analysis...................................................................................... 6
5. The April 2006 Chriss Draper Interrogation and Threat ............................ 6
a. The Facts .......................................................................................... 6
b. The Analysis...................................................................................... 7
6. The April 2006 Interrogation by Executive Chef Rolf Jung........................ 7
a. The Facts .......................................................................................... 7
b. The Analysis...................................................................................... 7
7. The April 21, 2006, Union Paraphernalia Issues....................................... 8
a. The Facts .......................................................................................... 8
b. The Analysis...................................................................................... 8
8. The May 11, 2006 Chriss Draper Threat of Suspension ........................... 8
a. The Facts .......................................................................................... 8
b. The Analysis...................................................................................... 9
9. The May 11, 2006 Rogelio de la Rosa Threat of Suspension ................... 9
a. The Facts .......................................................................................... 9
b. The Analysis...................................................................................... 9
10. The May 11, 2006, Ana Samayoa Threat of Suspension........................ 9
JD(SF)-43-08
Los Angeles, CA
a. The Facts .......................................................................................... 9
b. The Analysis...................................................................................... 10
11. The June 2006 Banquet Manager Charles Perera Threat ...................... 10
a. The Facts .......................................................................................... 10
b. The Analysis...................................................................................... 10
12. The May 11, 2006 Suspension of 77 Employees.................................... 11
a. The Facts .......................................................................................... 11
b. The Analysis...................................................................................... 13
B. The 8(a)(3) Allegations ................................................................................... 17
1. The August 24, 2006 Warning of Nathalie Contreras................................ 17
a. The Facts .......................................................................................... 17
b. The Analysis...................................................................................... 19
2. The June 2006 Warnings to Employees ................................................... 21
a. The Facts .......................................................................................... 21
i. The Simmons Warning ................................................................ 21
ii. The Magallon Warning................................................................ 23
iii. The Brentner Warning................................................................ 23
iv. The Salinas Warning.................................................................. 23
v. The Gomez Warning................................................................... 24
vi. Respondent’s Investigation ........................................................ 24
b. The Analysis...................................................................................... 24
The Back Pay Specification............................................................................................... 27
Conclusions of Law........................................................................................................... 27
Remedy ............................................................................................................................ 28
ORDER............................................................................................................................. 28
APPENDIX