Trump Ruffin Commercial, LLC d/b/a Trump International Hotel Las Vegas

National Labor Relations Board - Administrative Judge Opinions

Jul 22, 2016

28-CA-149979 (N.L.R.B. Jul. 22, 2016)

JD(SF)–31–16
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
TRUMP RUFFIN COMMERCIAL, LLC,
d/b/a TRUMP INTERNATIONAL HOTEL
LAS VEGAS
and Cases 28–CA–149979
28–CA–150529
28–CA–155072
28–CA–156304
28–CA–156719
28–CA–157883
LOCAL JOINT EXECUTIVE BOARD OF
LAS VEGAS, affiliated with UNITE HERE
INTERNATIONAL UNION
Charging Party
Judith Davila and Elise Oviedo, Esqs.
for the General Counsel.
William Dritsas and Ronald Kramer, Esqs. (Seyfarth Shaw, LLP)
for the Respondent.
Richard McCracken, Esq. (McCracken, Stemerman & Holsberry)
for the Charging Party.1
DECISION
STATEMENT OF THE CASE
LISA D. THOMPSON, Administrative Law Judge. Local Joint Executive Board of Las
Vegas, which is affiliated with UNITE HERE! International Union (Charging Party or the
Union), filed three unfair labor practice (ULP) charges against Trump Ruffin Commercial, LLC
d/b/a Trump International Hotel Las Vegas (Respondent).2 On August 31, 2015, the Regional
Director for Region 28 (Regional Director) issued a consolidated complaint and notice of
hearing. While the consolidated complaint was pending, the Union filed three more ULP charges
against Respondent.3 The Regional Director consolidated all six of the charges and issued a
second consolidated complaint and notice of hearing on September 30, 2015.
The second consolidated complaint alleges that Respondent violated Section 8(a)(3) and
(1) of the National Labor Relations Act (the Act) when it: (1) promulgated/maintained unlawful

1 Although Mr. McCracken entered his appearance in the case, he did not appear or participate during the hearing.
2 Cases 28–CA–149979, 28–CA–150529, and 28–CA–155072.
3 Cases 28–CA–156304, 28–CA–156719, and 28–CA–157883.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
2
no-solicitation and no-distribution rules, (2) promulgated/maintained an unlawful confidentiality
policy, (3) interrogated employees about their union membership/activities/sympathies,
(4)surveiled and created an impression of surveillance among employees concerning their union
activities, (5) threatened employees with various, unspecified reprisals because of their union
membership/activities/sympathies, (6) promulgated/enforced a directive prohibiting employees
from distributing union literature on Respondent’s property, (7) promulgated/enforced a directive
prohibiting employees from speaking with guests, and (8) terminated employee Martha Guzman
because she assisted/joined the Union. Respondent filed its answer, and later an amended
answer, denying all material allegations and setting forth its affirmative defenses to the
complaint.4
This case was tried before me in Las Vegas, Nevada from November 17 through
November 20, 2015. The trial resumed from December 1 through December 4, 2015 and
ultimately concluded on December 10, 2015.5 During the hearing, the parties settled the
allegations concerning Respondent’s no-solicitation and no distribution policy (complaint
paragraphs 5(a)(1–2)) as well as its confidentiality policy (complaint paragraphs 5(a)(3) and
5(b)). Accordingly, those allegations will not be addressed in this decision.
All parties were afforded a full opportunity to appear, introduce evidence, examine and
cross-examine witnesses, argue orally on the record, and file post-hearing briefs. After carefully
considering the entire record, including the demeanor of the witnesses and the parties’ post-
hearing briefs, I make the following6
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times, Trump International Hotel Las Vegas has been a corporation with
an office and place of business in Las Vegas, Nevada. Respondent has been engaged in the
operation of a hotel providing food and lodging. During the 12-month period ending April 13,
2015, Respondent derived gross revenues in excess of $500,000 and purchased and received at
its Las Vegas hotel goods valued in excess of $50,000 directly from points outside the State of
Nevada. Accordingly, at all material times, Respondent admits and I find that it has been an
employer within the meaning of Sections 2(2), (6), and (7) of the Act.

4 Abbreviations used in this decision are as follows: “Tr.” for the Transcript, “Jt. Exh.” for the Joint Exhibits, “GC Exh.” for
the General Counsel’s exhibits, “R. Exh.” for Respondent’s Exhibits, “GC Br.” for the General Counsel’s brief, and “R. Br.” for
Respondent’s brief.
5 The parties agreed to the taking of testimony of three rebuttal witnesses by video on December 10, 2015. In so doing, the
undersigned presided over the hearing from Region 21’s offices in Los Angeles, California and lead counsel for the General
Counsel Judith Davila appeared from Region 28’s offices in Phoenix, Arizona. Co-counsel for the General Counsel Elise Oviedo,
Respondent’s counsel William Dritsas and the rebuttal witnesses appeared from Region 28’s offices in Las Vegas.
6 Specific citations to the transcript and exhibits are included where appropriate to aid review, and are not necessarily
exclusive or exhaustive.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
3
It is also undisputed, and I find that, at all material times, Local Joint Executive Board of
Las Vegas, affiliated with UNITE HERE! International Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent’s Operation
Respondent operates a hotel in Las Vegas, Nevada. Respondent has nearly 1300 rooms
and employs about 700 employees. Of the 700 employees, Respondent has approximately 300
housemen and guest room attendants (GRAs)/housekeepers who are responsible for cleaning
throughout the hotel.7
At all material times, Brian Baudreau (Baudreau) served as Respondent’s General
Manager. Respondent’s Director of Hotel Operations was Matthew Vandegrift, who reported to
Baudreau.8 This case involves Respondent’s Housekeeping, Food and Beverage, Security and
Human Resources departments.
Alejandra Magaña (Magaña) served as the Director of Housekeeping. She reported to
Vandegrift. Kevin Kwon, Respondent’s Assistant Housekeeping Director, reported to Magaña.
Respondent also employed a housekeeping department manager and a housekeeping department
coordinator.
Respondent also employed five Floor Managers: Anthony Wandick (Wandick), Imelda
Cretin (Cretin), Cherie Gallagher, Neda Elkurdi, Thomas Stende, and Krystyna Stills.
Respondent’s Floor Managers were responsible for overseeing the day-to-day operations of the
Housekeeping Department, supervising and directing the GRAs, conducting room quality
inspections, responding to guest complaints about room cleanliness or other issues, ensuring
productivity and staffing, issuing disciplinary actions, and hiring and conducting training. They
all reported to Magaña.
Christina Keeran (Keeran) served as a Status Clerk Lead. Keeran reported to Magaña.9
Because Keeran’s job duties are relevant in deciding Respondent’s motion for summary
judgment, I will briefly detail those below.

7 The official title of Respondent’s housekeepers is guest room attendant (GRA). However, the term “housekeeper(s)” and
“guest room attendant(s)” are used interchangeably throughout the hearing and in this decision.
8 As noted by Respondent in its brief, Mr. Vandegrift was incorrectly referred to as “Mattieu Vanderbilt,” “Martin
Vanderbilt,” and/or “Matthew Vanderbilt” in the complaint, transcript and the General Counsel’s brief. See GC Exh. 1(r) ¶¶ 4,
5(n); Tr. 157; see also R. Br. at 7, fn. 3.
9 Respondent moved for summary judgment regarding the complaint allegations against Keeran on the grounds that Keeran
is not a supervisor or agent of Respondent. Respondent’s motion and the parties’ arguments therein will be addressed in detail
later in this decision.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
4
As the Status Clerk Lead, Keeran oversaw approximately four to ten status (also called
dispatch) clerks. In so doing, she ensured that housekeepers’ task sheets were completed
correctly and guest requests for items and/or services were completed in a timely manner.
Keeran also was responsible for drafting and assisting with the schedule for
housekeeping employees. To do that, Keeran entered a 12-day occupancy forecast into a
computer program, and the program generated the number of housekeeping employees who
needed to be scheduled for work each day. Keeran then entered approved vacations given to her
by Magaña, and the program automatically populated the schedule with full-time employees.
Keeran subsequently filled in any gaps in the schedule with full-time floaters and on-call
employees in order of seniority. The schedule was then reviewed by Magaña to ensure the 12-
day forecast and vacations were entered accurately and to make any necessary changes on how
many and which housekeeping employees were scheduled to work.
Keeran assisted with housekeeping payroll and editing payroll documents, and other
miscellaneous duties. She kept track of employees’ attendance points in their attendance
calendars to facilitate enforcement of Respondent’s disciplinary policy for attendance
infractions. Keeran assisted with payroll, by entering employees’ clock-in times when
Respondent’s biometric clock-in system could not read their fingerprints. Keeran also signed off
on employee’s vacation requests, if authorized by Respondent to do so.
Keeran communicated and reviewed daily housekeeping staffing needs with Magaña and
other housekeeping managers to ensure staffing needs were appropriate.10 When authorized by
Respondent to do so, Keeran communicated with GRAs about how many attendance points they
accrued and spoke to them about clock-in and clock-out procedures.
Lastly, when authorized by management, Keeran called employees to offer them time off
without penalty when Respondent had too many housekeeping employees scheduled or to offer
them a shift when Respondent did not have enough GRAs scheduled.11
Respondent also employed approximately 10–20 security officers at the hotel. Olivia
Green (Green) and Daniel Slovak (Slovak) were two of Respondent’s security officers. As
security officers, Green and Slovak were responsible for ensuring the overall safety and security
of the hotel. Both reported to Security Manager Eric Delgado. Clyde Turner (Turner) served as
Director of Security.

10 GC Exh. 13.
11 Id.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
5
Union’s organizing campaign
In order to better understand the current dispute in this case, it is important to describe the
events in the months leading up to the incidents giving rise to this complaint.
In mid-2015, the Union began organizing Respondent’s housekeeping and food and
beverage employees. GRAs Ofelia Diaz (Diaz), Carmen Llarull (Llarull), Rodolfo Aleman
(Aleman), Gisella Happe (Happe), and Celia Vargas (Vargas) served as Union Committee
leaders at Respondent’s hotel. At the outset of the organizing campaign, they wore red Union
“Committee leader” and/or yellow Union buttons to work and sought to encourage other
housekeeping employees to wear Union buttons and unionize.12
On June 5, 2015, the Union filed a representation petition with Region 28 of the National
Labor Relations Board (NLRB or the Board) seeking to organize and represent certain of
Respondent’s employees.13 An election was scheduled on June 25, 2015, however it was
postponed due to the filing of the ULP charge in Case 28–CA–149979. Nevertheless, the Union
continued organizing, and on November 6, 2015, the Union requested to proceed with the
election.
Throughout the campaign, housekeeping employees who supported unionizing routinely
gathered in the Employee Dining Room (EDR) to chant, distribute Union literature, and discuss
the Union. Housekeepers also displayed their growing support for the Union either by wearing
red Union Committee leader and/or yellow Union buttons.
Quite naturally, Respondent opposed unionization. During the morning talks with
housekeeping employees, called “Trump Talks,” management often conveyed their opposition to
the Union. Floor Manager Wandick testified that he and other managers were told to reinforce to
GRAs that the hotel “didn’t need a third party to mediate between management and employees.”
According to Wandick, he was also told to present the message that, “Corporate doesn’t want the
Union here . . . to reinforce what [Donald] Trump is doing for employees and that we don’t need
a union. So we obviously follow what Corporate wants.”14 Wandick explained that, while he was
given instructions not to interfere with Union activities or take action against employees that
were pro-union, Magaña told managers to rate employees on a point system, from 1 to 5, as to
which employees were pro- or anti-union and to report their activities to Housekeeping, Human

12 In her post-hearing brief, counsel for the General Counsel inserted facts from a prior ULP charge against Respondent
pertaining to the above-named Committee members. GC Br. at 6–7. That prior charge was settled through an informal Board
settlement. However, I find that the inclusion of facts from the prior charge clutters the record, attempts to re-litigate issues that
have been settled between the parties, and arguably, violates the confidentiality provisions of the prior settlement agreement.
Accordingly, I will not consider those facts in this decision.
13 The unit consisted of 415 Hotel employees, to include, “all regular full-time and regular part-time housekeeping, food
and beverage and front services employees” and excluding “all front-desk employees, valet parkers, drivers, engineering and
maintenance employees, office clerical employees, confidential employees, and all supervisors and guards as defined in the Act.
14 Tr. 414.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
6
Resources (HR) Manager Gustavo Acosta (Acosta) and/or HR Director Jeff Peterson
(Peterson).15
Security Officer Slovak was also told by his superiors to report any union activities.
According to Slovak, he was instructed that if he saw employees handbilling, he should report
their activity to his immediate supervisor.
Magaña also instructed floor managers and other supervisory staff to report all union
activity verbally versus in writing.16 Moreover, if GRAs complained about union activity,
managers were told to tell employees that if they wanted it to stop, they should vote “no” in the
election.17
Floor managers also were told to have the Union give employees guarantees—that is, if
an employee approached a manager and asked about a promise or benefit the Union was
offering, managers were instructed to give employees a flyer and tell them to ask the Union for
the promise in writing.18 It is against this backdrop that the incidents in this complaint occurred.
B. Specific Incidents of Alleged Unlawful Conduct
For ease of discussion, I will set forth the facts concerning the alleged unlawful
conduct as follows: (1) the ULP allegations against Housekeeping Director Magaña; (2) the
ULP allegations against Floor Manager Wandick; (3) the ULP allegations against Floor Manager
Cretin; (4) the ULP allegations against Status Clerk Lead Keeran; (5) the ULP allegations against
Security Officer Green; (6) the ULP allegations against Security Officer Slovak, (7) the incident
involving Food and Beverage Manager James Doucette (Doucette); and (8) Ms. Guzman’s
termination.19
1. Magaña’s “traitor” comment
The substance of what occurred regarding this incident turns on an evaluation of
credibility.20 Having carefully reviewed the record, I find the following facts:

15 Tr. 485.
16 Tr. 486.
17 Tr., 471, 474.
18 Tr. 1653.
19 During the last rebuttal witness on the last day of the hearing, the General Counsel moved to amend the complaint to
include an allegation that Respondent violated Section 8(a)(1) of the Act when it unlawfully granted benefits to employees by
suspending its attendance-related discipline during the Union campaign in order to discourage employees from supporting the
Union. The amendment was based upon HR Manager Acosta’s testimony. Acosta was called by the General Counsel early in the
hearing, testified as a Rule 611(c) witness and offered testimony concerning suspending Respondent’s attendance discipline
during his initial testimony. As such, Respondent objected to the amendment as untimely. In agreement with Respondent, I
denied the amendment as untimely on the record. Despite this ruling, in her brief, counsel for the General Counsel reasserts her
request to include the above allegation in the complaint. I again decline to amend the complaint for the reasons stated on the
record, and I will not address the proposed amended allegations in this decision.
20 I have based my credibility findings on multiple factors, including, but not limited to, the consideration of a witness’
opportunity to be familiar with the subjects covered by the testimony given; established or admitted facts; the impact of bias on
Continued
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
7
During the week of June 14, 2015, GRA Antonia Garcia (Garcia) was scheduled to work
from June 16–19, from 8:30 a.m. until 5 p.m. and on Saturday, June 20, from 9 a.m. until 5:30
p.m. While there was considerable dispute as to the date the events surrounding the “traitor”
remark occurred (Garcia thought the conversation occurred on June 15 or 16, GRA Maria
Jaramillo (Jaramillo) believed the incident occurred on June 15, while Magaña believed she
spoke with Garcia on June 19), I find that Garcia and Jamarillo were simply confused as to the
date and that, contrary to Magaña’s testimony, the incident in question actually occurred on June
16.
In any event, it is undisputed that all GRAs participate in a check out process prior to
clocking out for the day. To check out, GRAs are required to return their room keys and iPads—
formerly called written task sheets—to the Floor Managers at the Floor Managers’ table.21 When
returning their room keys and iPads, the GRAs typically form a line in the Housekeeping office
while awaiting a Floor Manager to check them out. After the GRAs return their keys, the Floor
Manager checks to ensure the GRAs have completed their assigned tasks for the day.
On June 16, 2015, at the end of her shift, Garcia went into the Housekeeping office to
turn in her room keys and iPad to Floor Manager Cretin. Cretin’s work station was typically
located the furthest away from Magaña’s office. Jaramillo also was in the office checking out at
the end of her shift. Although there was considerable dispute as to where Jaramillo was standing
in relation to Magaña’s office during the check-out process, how many other GRAs were in the
office checking out, and whether Jaramillo clocked out before or after Garcia,22 I find these
inconsistencies insignificant. Rather, the evidence reveals that, at some point, Jaramillo stood
near the first station at the Floor Managers’ table, located closest to Magaña’s office. Meanwhile,
while Cretin was checking out Garcia, Magaña noticed Garcia and asked her to come into her
office. Garcia complied.
Once in Magaña’s office, Magaña asked Garcia “What is that?” to which Garcia
responded, “What, my union button?” Magaña responded, “Yes.” At that point, Magaña stated
words to the effect, “I thought you were on my side [meaning for the company and against the
union].” Garcia responded “Why?” to which Magaña replied, “At this time, I see you as a
traitor.” Surprised, Garcia replied, “for what reason?” to which Magaña responded, “I thought
you were on my side, but now I see that you are one of the ones who attends the Union
meetings.” Garcia then responded words to the effect, “no no, ma’am, I’m not on the committee,
I don’t attend the meetings, and I don’t need to attend Union meetings to show support to my
Union members…” Garcia then apologized to Magaña for having disappointed her. In response,
_________________________
the witness’ testimony; the quality of the witness’ recollection; testimonial consistency; the presence or absence of corroboration;
the strength of rebuttal evidence, if any; the weight of the evidence; the witness’ demeanor while testifying; inherent
probabilities; and reasonable inferences that may be drawn from the record as a whole. Daikichi Sushi, 335 NLRB 622, 633
(2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert.
denied 522 U.S. 948 (1997) .Credibility findings need not be all-or-nothing propositions, and it is common for a fact finder to
credit some, but not all, of a witness’ testimony. Daikichi Sushi, supra at 622.
21 For the exact layout and location of the floor managers’ table, see R. Exh. 18(e).
22 Tr. 568, 574–575, 579–581, 751–752, 762–763.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
8
Magaña stated, “Are you aware that the person who started this movement is leaving in a few
days?” to which Garcia replied something to the effect, “well, if she’s leaving, she’s leaving.”
Magaña then responded words to the effect, “well, I don’t think it’s fair for her to leave the ‘hot
potato’ [meaning starting the Union campaign] in everybody else’s hands,” to which Garcia
replied, “Well, that’s only one person, there are other people on the committee and the fight
continues.” At that point, the conversation ended and Garcia left Magaña’s office.
As Garcia left Magaña’s office, she saw Jaramillo, who was standing at the Floor
Managers’ table closest to Magaña’s door. Both women left the office. As they left the office,
Garcia asked Jaramillo if she heard what Magaña told Garcia. Jaramillo responded affirmatively
and told Garcia that she heard Magaña call Garcia a traitor. Jaramillo asked Garcia whether she
would continue wearing her Union button, and Garcia responded affirmatively. It is undisputed
that no action was taken against Garcia, and she continued wearing her Union button without
incident.
For her part, Magaña denied calling Garcia a “traitor” and the conversation in general.
However, I found Magaña less than fully credible for several reasons. First, although Magaña
denied that she in any way discussed Garcia’s Union button/support, other than her self-serving
denials, she offered no credible evidence to refute Garcia’s and Jamarillo’s testimony. Magaña
also explained that, on June 19 (not June 16), she called Garcia into her office, not to discuss her
Union button; but rather to find out if Garcia attended a voluntary campaign meeting/class with
labor consultants Cruz & Associates that Magaña scheduled for her to attend that day. However,
Magaña’s explanation as to why she called Garcia into her office does not rebut the fact that she
could have easily seen Garcia’s Union button as Garcia approached Magaña’s office then
interrogated Garcia about her Union support. Moreover, Garcia’s and Jaramillo’s version of
events is more believable given Wandick’s testimony that Magaña instructed Floor Managers to
keep track of which GRAs were in favor of or against the Union. I found Wandick’s testimony
particularly credible on this point.
Furthermore, while Respondent’s counsel made a point of eliciting testimony about the
distance between Floor Manager Cretin’s station and Magaña’s office, the noise level in the
office during the GRA’s check-out process, that Magaña often closed her door when speaking
with GRAs, and that several managers and staff never heard Magaña call Garcia a “traitor,”
(implying that Jaramillo also could not have heard what Magaña discussed with Garcia), there
was no definitive evidence proffered that Magaña’s door was closed during her discussion with
Garcia.
Additionally, even though Jaramillo testified that Cretin checked her out that day, which
implies that Jaramillo stood furthest away from Magaña’s office, there was no testimony as to
whether the “traitor” remark was made during or after Jaramillo’s check out process. In fact,
Jaramillo may have been waiting in a line of GRAs to check out that stretched toward Magaña’s
office. Or, she may have completed her check out process and, as she testified, waited for Garcia
to conclude her conversation with Magaña. In any event, the point is that Jaramillo could have
easily stood outside Magaña’s office and heard Magaña’s “traitor” remark. None of
Respondent’s witnesses disputed where Jaramillo stood in relation to Magaña’s office.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
9
In any event, while I noticed that Garcia was visibly irritated by Respondent counsel’s
questioning on cross-examination and often appeared with her arms folded, looking down and
breathing heavily, overall, I found Garcia’s testimony, given mainly through a Spanish
interpreter, was open, non-evasive and detailed concerning the “traitor” remark. Garcia’s
testimony was further corroborated by Jaramillo, who appeared composed and steady and
testified openly, directly and specifically as to her recollection of Magaña’s “traitor” comment.
As such, Jaramillo struck me as committed to speaking the truth.
In contrast, Magaña’s demeanor was moderately hostile, particularly on direct
examination (as a Rule 611(c) witness). She appeared visibly stiff and gave guarded testimony
that presented as less than forthright.
Lastly, and most importantly, I credit Garcia’s and Jaramillo’s testimony over Magaña’s
due to their status as current employees. Under these circumstances, their testimony has a
special guarantee of reliability.23 As such, I find that, on or around June 16, 2015, Magaña
called Garcia a “traitor” when she saw Garcia wearing her yellow Union button.
2. Wandick’s allegations
a. Wandick confiscates union literature from Llarull
The testimony regarding this incident varied widely, both in substance and credibility.
However, after reviewing the record, I find the following facts:
It is undisputed that, as the training manager for newly hired GRAs, Wandick was
responsible for pairing more seasoned GRAs with newly hired housekeepers. According to
Wandick, if he saw a new employee in the EDR before the start of their shift and they needed to
be trained, his standard practice was to approach the employee before the Trump Talk so he
could introduce them to their trainer.24
Moreover, it is undisputed that, as a Floor Manager, Wandick frequently gave “Trump
Talks” to the GRAs in the EDR. To prepare for these talks, Wandick and other managers arrived
a bit early before the Trump Talk, walked around, greeted employees and got them “juiced up for
the day.”25 It is also undisputed that the 8 a.m. Trump Talk was the busiest, with approximately
90–95 GRAs and housemen in attendance.

23 See Gold Standard Enterprises, 234 NLRB 618, 619 (1978) (testimony of current employees, particularly while
management representatives are present, that accuses respondent of wrongdoing has inherent reliability because these witnesses
are testifying adverse to their pecuniary interests).
24 Tr. 1647–1648. “Trump Talks” are given three to four times per day during the morning shift, at 7:00 a.m., 8:00 a.m.,
and 8:30 a.m. Tr. 397, 427–429, 1104–1105. There is an evening “Trump Talk” for swing shift employees. During these talks,
managers discuss with the GRAs the Hotel’s occupancy, VIP arrivals, and other important issues that need to be addressed that
day. GRAs also receive their room keys and iPads (containing their tasks/room assignments for the day) before or after the
Trump Talks. Trump talks last approximately five to 20 minutes depending on the circumstances of the day.
25 Tr. 431–433.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
10
Additionally, Wandick frequently attended other manager’s Trump Talks in the
mornings. When he attended other manager’s Trump Talks, he routinely wandered or stood
around employee’s tables in the EDR to ensure that employees paid attention in the meeting and
were not having side conversations during the Talk.
GRA Carmen Llarull (Llarull) is a Union committee leader and supporter. Admittedly,
Llarull has the reputation of campaigning zealously on behalf of the Union, and she vehemently
supports unionizing Respondent’s housekeepers and housemen.26
Sometime in March/April 2015, Llarull was distributing Union flyers to employees in the
EDR at 8 a.m., before clocking into work. Employees were allowed to participate in union
activities in the EDR and in and around Respondent’s facility before their shifts began, during
lunch, and after their shifts ended.
While Llarull testified that, as she handed a Union flyer to an employee, Wandick
snatched the flyer, tore it up, crossed his arms across his chest, and stood looking at Llarull
before leaving with the employee, I credit Wandick’s testimony where he denied that he ever
engaged in the alleged conduct. Also, based upon Wandick’s testimony, I find that, to the extent
Wandick left with an employee while Llarull was handbilling, he did so either to introduce the
new employee to his trainer, to ensure that the employees were not engaging in side
conversations during the Trump Talk, or for some other legitimate reason.
I found Llarull’s testimony less than fully credible for several reasons. First, although
Llarull’s testimony was corroborated by GRA Celia Vargus (Vargus), the fact that Llarull, given
her zeal for the Union, never complained about the incident to anyone in management or the
Union at the time it occurred or mentioned the incident in her Board affidavit (also known as a
Jencks statement) as part of this case struck me as odd and made her testimony less than fully
credible.
Second, both Llarull and Vargus testified that they often saw Wandick talking with
employees as they distributed Union flyers but could not discern the conversation. As such,
neither of them could refute Wandick’s testimony that he pulled employees away so they could
meet their trainers or for some other legitimate purpose.
Third, there were significant discrepancies in Llarull’s and Vargus’ version of events.
Although Llarull testified that Wandick snatched the flyer, tore it up and threw it away, she also
testified that Wandick “balled up” the flyer. In addition, Vargus never mentioned Llarull’s
version of events in her testimony. Moreover, the record reflects that, at the time Llarull was
distributing Union flyers, Vargas also was distributing Union flyers in the EDR and there was no
evidence presented that Vargas was prevented from distributing Union flyers. As such, it seems
highly implausible that Wandick would have confiscated Llarull’s flyer without also confiscating
Vargus’ flyers.

26 Tr. 686–691.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
11
Next, Llarull’s demeanor was extremely hostile on cross examination. In fact, Llarull was
often reluctant to answer Respondent’s counsel’s questions and appeared as if she was
withholding testimony if the answer did not support her narrative—i.e., support the Union. As
such, I was left with the impression that Llarull was prejudiced against Respondent because it did
not support unionization, which made her testimony less than fully credible.
Lastly, because Wandick, as a (former) management official, gave favorable and
unfavorable testimony regarding Respondent, his testimony lacked bias or prejudice.27 As such, I
found Wandick’s testimony particularly reliable regarding this incident.
b. Wandick Surveilled Aleman while conversing with GRAs and increased his
presence/surveiled GRAs in the EDR during the Union campaign
GRA Rodolfo Aleman (Aleman) worked for Respondent from October 2011 to June
2015. He was a Union Committee leader. He testified that, on or about June 23, 2015, between
7:35 a.m. and 7:40 a.m., he observed Wandick standing near or behind him for approximately
five minutes while he spoke with another employee about the Union. According to Aleman,
Wandick increased his surveillance of him immediately after he began prominently displaying
his Union Committee leader and Union buttons. Aleman also explained that, on this occasion,
Wandick stood so close to him and another female employee while they were conversing that the
female employee told Aleman they should wait and continue their conversation once Wandick
left their table.
GRA Llarull corroborated Aleman’s testimony. According to Llarull, Wandick increased
his presence in the EDR, particularly when she was handbilling, routinely approached,
interrupted and took the attention away from her when she spoke to employees about the Union.
On one occasion, Llarull told Wandick that they were not “on the clock” and that he was
violating her rights.28
Although Wandick denied that he increasingly surveiled Aleman or Llarull, I credit
Aleman’s testimony concerning this incident for several reasons. First, Aleman’s recollection of
the incident was direct and specific. He was not evasive in his testimony and his demeanor
remained consistent throughout questioning. Although Llarull corroborated Aleman’s testimony,
because I found Llarull less than fully credible generally, I did not rely on her testimony
regarding this incident.
Nevertheless, I found Aleman’s testimony about Wandick’s surveillance corroborates
Wandick’s own testimony that he was instructed to assess and rate which of the GRAs were in
favor of or were against unionization. Thus, it is reasonable to infer that Wandick stood over and
listened to Aleman, a known Union Committee member and supporter, to ascertain whether

27 Flexsteel Industries, 316 NLRB 745, 749 (judge found that a former employee witness had no reason to lie or nothing to
gain by fabricating his testimony, and as such, found the witness credible).
28 Tr. 655, 658, 682.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
12
Aleman was encouraging the other female employees to support the Union. Accordingly, I find
that Wandick surveiled Aleman while he conversed with a GRA during the Union campaign.
c. Wandick and Vandegrift stood by EDR, greeted employees, and told them to
vote “no” on unionization
The General Counsel failed to proffer any testimonial or documentary evidence to
support the allegation that, on or about June 24, 2015, Wandick and Hotel Operations
Director Vandegrift created an impression among employees that their union activities were
under surveillance when they stood by the EDR, greeted employees and told them to vote
“no” on unionization. Accordingly, the General Counsel has failed to state a claim, and as
such, complaint paragraph 5(n) should be dismissed.
d. The Guest Room incident
After a careful review of the record, I find the following facts:
On or about June 13, 2015, GRA Vargas, a Union supporter and Committee leader, was
assigned to clean rooms on the Hotel’s 52nd floor. GRA Dora Rivera (Rivera), also a Union
supporter and Committee leader, was assigned to clean rooms on the Hotel’s 51st floor. On that
afternoon, Vargas’ assigned rooms were unavailable to clean so she called a Floor Manager, the
identity is unclear, to check on any additional assignments. The Floor Manager told Vargus that
a guest in Room 5107, a one-bedroom corner suite, requested that Housekeeping make up a sofa
bed.29 Rivera, who was working on the 51st floor, decided to assist Vargas, because Rivera’s
assigned rooms were occupied and she had no other work assignments.
Vargas went to the room and informed the guest that she was there to make the guest’s
sofa bed. Meanwhile, Rivera went to the linen closet on the floor to get clean sheets for the sofa
bed. When Rivera returned to the room, the guest informed Vargas that she did not want the sofa
bed made; rather, she wanted the foam mattress insert she requested at check-in. At that point,
Vargas called someone in the status office from the hallway telephone to inquire as to the
delivery of the insert.
After concluding her telephone call, Vargas informed the guest that the insert would be
delivered in 10 minutes. At that point, Vargus and Rivera left to clean two other rooms.
Vargas and Rivera returned to Room 5107 approximately 30 to 45 minutes later.
However, the foam mattress insert had not been delivered. Vargas explained to the guest that the
Hotel was busy that day so there were many requests for foam inserts, and as a result, it was
taking longer than usual to have one delivered. Apparently, the guest was upset at the delay so
Vargus asked the guest if she could use the guest’s telephone to find out when the mattress
would be delivered.

29 R. Exh. 13.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
13
Vargus called Magaña, explained the situation, and Magaña told Vargus that Wandick
was coming up to the room.
When Wandick entered the room, he saw Vargus and Rivera talking. Wandick did not see
the guest in the room. Although Vargus and Rivera testified that Wandick had the foam mattress
in tow, the documentary evidence belies their testimony. Rather, the record shows no mattress
inserts were available when Wandick arrived in the guest’s room.30
In any event, although there was considerable dispute as to what Wandick said when he
arrived in the room, I find that Wandick asked Vargus and Rivera “what’s going on?” Vargus
replied words to the effect that the guest requested a foam mattress insert that had not yet been
delivered so she (and Rivera) had gone to clean another room while she waited for the mattress.
Because the documentary evidence proves that Wandick did not have the foam mattress when he
arrived in the room, I find that Wandick told Vargus and Rivera that he would put a rush on the
mattress delivery.31 Wandick then radioed the VIP houseman and told him to put a rush on the
foam mattress. After receiving confirmation that the houseman was attempting to search for the
mattress, Wandick left the room.
In making the above findings, I found Vargus’ and Rivera’s version of events less than
fully credible. Specifically, Vargus and Rivera testified that, after they told Wandick what they
were doing in the room, Wandick left the mattress in the room and asked Vargus to meet him in
the hallway. However, because I find, and the documentary evidence proved, that Wandick did
not have the mattress with him when he arrived in the room, I find Vargus’ and Rivera’s
testimony unreliable.
Moreover, although Vargus testified that, once they walked to the hallway, Wandick told
her she could not speak to guests, given the inconsistency in her testimony that Wandick arrived
in the room with the foam mattress, I do not believe Wandick ever made such a statement. In
fact, based upon Wandick’s testimony, I find that, after Wandick called to rush the foam insert to
the guest’s room, he left the room.
Lastly, it is undisputed that, at around 6 p.m., another call was placed for a foam mattress
for Room 5107, and one was found, which lends further credibility to Wandick’s version of
events.32 Accordingly, I find that, when Wandick arrived in the guest’s room and saw Vargus
and Rivera, he asked them “what was going on,” and when they told him the guest was waiting
on a foam mattress insert to be delivered, Wandick contacted the VIP houseman, put a rush on
the insert, and left the room.

30 R. Exh. 15.
31 R. Exh. 15, Tr. 465–466.
32 R. Exh. 15, Tr. 478–79.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
14
e. Wandick asked GRA Vazquez how she would vote in the Union election
Based upon the testimony of GRAs Janet Vasquez (Vazquez) and Iresyane Gonzalez
(Gonzalez), I find the following facts:
Some time in May 2015, before the scheduled Union election, Vazquez went with
Gonzalez to Magaña’s office to ask Magaña about rumors Vazquez had heard about the Union.
Vazquez was undecided about the Union but had heard that if she voted for the Union, she would
receive additional benefits. Vazquez wanted to find out whether the rumors were true. Magaña
and Wandick were present in Magaña’s office when Vazquez and Gonzalez arrived.
When Vazquez and Gonzalez arrived in Magaña’s office, Vazquez asked whether the
Union’s promises of benefits to the GRAs were true. Magaña replied that she could not answer
Vazquez’s question. Instead, Magaña showed Vazquez and Gonzalez the guarantee form and
told them that if the Union promised them any benefits, to make sure to have the Union sign the
guarantee form. Wandick then offered Vazquez one of the guarantee forms. Although Gonzalez
testified that Vazquez responded, “I’m convinced I’m not going to vote for the Union,” Vazquez
never mentioned making this statement.33
In any event, Vazquez and Gonzalez testified that, at the end of their conversation with
Magaña, Wandick asked Vazquez how she was going to vote. While Vazquez and Gonzalez’s
testimony differ as to where Wandick’s remark occurred, nevertheless, I find that Vazquez
became angry and told Wandick she did not have to answer his question. Neither Vazquez nor
Gonzalez took the guarantee forms and both left the Housekeeping office.
Although Wandick denied he asked Vazquez how she would vote, I credit Vazquez’s
testimony for several reasons. First, I found Vazquez especially credible, in that she listened
carefully to the questions asked and maintained the same demeanor regardless of who examined
her. Second, Vazquez’s testimony was corroborated by Gonzalez. While Gonzalez appeared
nervous and testified with the assistance of a Spanish interpreter, I found her equally credible as
her testimony was open, direct and non-evasive. Her recollections of what occurred were specific
and unambiguous. Although Gonzalez appeared somewhat hostile during examination by the
General Counsel (because she did not support the Union), her demeanor struck me that she was
telling the truth.
While there were some inconsistencies regarding where Wandick’s comment occurred as
well as testimony from Gonzalez that Wandick spoke with Vazquez in the housekeeping office
outside of her earshot, I nevertheless credit her testimony that she heard Wandick ask Vazquez
how she would vote in the Union election. Similarly, although I found it odd that Gonzalez
recalled Vazquez saying, “I’m convinced I’m not going to vote for the Union” when Vazquez
never mentioned making that statement, I conclude that that testimonial inconsistency does not

33 Tr. 1434.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
15
detract from Vazquez’s overall testimony that Wandick asked her how she would vote in the
election.
More importantly, Vazquez’s (and Gonzalez’s) testimony supports Wandick’s earlier
testimony that he was instructed to find out whom amongst the GRAs supported the Union.
Finally, because of their status as current employees, Vazquez’s and Gonzalez’s testimony
warrants enhanced reliability under the circumstances.34 Accordingly, I find that Wandick asked
Vazquez how she would vote in the Union election.
3. Cretin allegations
a. Cretin told Llarull that Aleman would not get promoted if voted for Union
The testimony surrounding this incident is conflicting, both in substance and credibility.
However, based upon the testimony of former Floor Manager Imelda Cretin (Cretin), I find as
follows:
At all material times, Cretin was one of Respondent’s Floor Managers in the
Housekeeping Department. As stated above, GRA Llarull is a zealous Union Committee leader
and active Union supporter who vehemently supports unionizing Respondent’s housekeepers and
housemen.35
In or around June 2015, GRAs Llarull and Aleman were discussing various job vacancies
within Housekeeping and why Aleman had not been promoted into a white house position for
which he applied. At some point, Cretin walked by. Upon seeing Cretin, Llarull asked Cretin
why Aleman was not offered the white house position. Although Llarull testified that Cretin told
her that Aleman was not promoted because of his Union support (i.e., wearing a Union button),
I credit Cretin’s testimony where she denied Llarull’s version of events.
Rather, I find that Cretin told Llarull that Aleman was not promoted because of his prior
discipline. Specifically, Cretin told Llarull, “I should not tell you this but Aleman has discipline
in his file and he cannot be promoted or transferred with discipline on his record. Aleman knows
why he didn’t get that position.” When asked why Cretin told Llarull about Aleman’s discipline,
Cretin stated, “There were a lot of rumors about why GRAs don’t get positions so I wanted to set
the record straight.” According to Cretin, many GRAs believed they were not promoted due to
favoritism and/or their support for the Union, so Cretin wanted to ensure that Llarull knew the
reasons why Aleman was not promoted.
In making these factual findings, I found Llarull less than fully credible. As stated above,
Llarull’s tone and demeanor was very aggressive on cross examination and her answers reflected

34 Gold Standard Enterprises, supra (the testimony of current employees, particularly while management representatives
are present, that essentially accuses respondent of wrongdoing has inherent reliability because these witnesses are testifying
adversely to their pecuniary interests).
35 Tr. 686–691.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
16
extreme hostility toward Respondent.36 As such, her testimony lacked objectivity which made
her less than fully credible. In contrast, Cretin was straightforward and even tempered
throughout her testimony which made her more credible.
b. Cretin told GRA Ofelia Diaz that wearing her union button prejudiced her in
obtaining opportunities to train newly hired GRAs
Relying upon the credible testimony of former Floor Manager Cretin, I find as follows.
It is undisputed that, for a period of time, Cretin served as the training manager for newly
hired GRAs. As part of training, new hires were paired with more experienced GRAs and
shadowed them on their daily assignments. Once Cretin stopped serving as training manager, and
after her successor left, Wandick assumed this role in early 2015.
It is also undisputed that, in the past, as the training manager, Cretin gave GRA Ofelia
Diaz (Diaz) opportunities to train new GRAs. At that time, Diaz was not a Union Committee
leader or active Union supporter. However, from approximately January 22 through April 18,
2015, Diaz was unable to train because she was on leave due to a personal injury.
By July 2015, Diaz was a Union Committee leader and active Union supporter. On July
7, 2015, after one of the morning Trump Talks, Diaz asked Cretin why she had not been given
opportunities to train new GRAs. Although Diaz testified that, in response, Cretin pointed to
Diaz’s Union Committee leader button and told her that wearing her button was “ruining things”
for Diaz, I credit Cretin’s testimony where she denied Diaz’s version of events.
Rather, I find Cretin told Diaz that Cretin was no longer the training manager, Wandick
was the new training manager, and he changed the training procedures whereby all trainers were
required to take a training class before being assigned to train new GRAs. Cretin then told Diaz
that she could not train new GRAs until Diaz took the training class. Diaz replied that she
believed she was no longer able to train because she wore her Union Committee leader button
and/or supported the Union. At that point, Cretin reassured Diaz that her union support was
never a consideration then told Diaz that she would talk to Wandick to find out if he could return
Diaz to the training program.
At some point thereafter, Cretin asked Wandick why Diaz was not training new GRAs, to
which Wandick replied that Diaz had missed the training class. Cretin asked Wandick to find out
the date of the next class and he agreed to do so.

36 In fact, Llarull’s aggressive zeal for the Union was evidenced by an incident in October 2015, when Housemen Ryan
Aguayo (Aguayo) and Jose Perez Cortez (Cortez), both Union supporters, complained to Human Resources (HR) that Llarull was
angry and aggressive toward Cortez and called Cortez “stupid” when Cortez asked Llarull how much he would get paid if he
became a Union committee leader. Tr. 686–688, 698–699, 776–777, 794–796, 970–971, 975; R. Exh. 19. This incident coupled
with Llarull’s tone and demeanor on the stand and her palpable hostility toward Respondent left me with the impression that she
was prejudiced against Respondent because it did not support unionization, which made her testimony less than fully credible.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
17
In crediting Cretin’s version of events, I found Cretin was direct, specific, and
unambiguous in her testimony. She maintained a good recall of events. Cretin was not evasive in
answering questions asked on direct and cross examination. While I found Diaz generally
credible, Cretin’s demeanor and tone appeared confident and her testimony was straightforward
and unbiased. Although Diaz’s testimony is presumed especially reliable given she is a current
employee of Respondent, I note that Cretin, being a former management official of Respondent,
was under no obligation to testify favorably toward Respondent.37 Overall, Cretin’s testimony
struck me as truthful which made her version of events particularly credible.
4. Keeran allegations
a. Keeran interrogated GRA Vargus about her union sympathies
As stated above, GRA Vargus is a Union Committee leader and Union supporter. It
is undisputed that, at all material times, Christina Keeran (Keeran) was employed as a Status
Clerk—Lead.
In or around March 2015, Vargus, Llarull, Jaramillo and several other GRAs were
standing in the EDR waiting for the morning Trump Talk. At some point, Keeran entered
the EDR, saw Vargus and asked her to sit down. Vargus did not comply. According to
Vargus, Keeran asked, “I want to know why you want the Union.” Vargus did not answer
Keeran. Instead, Vargus told Keeran she was on the clock and could not talk to her about the
Union. Thereafter, Keeran replied that she would look for Vargus on her break to continue
their conversation.
Some time later that afternoon, Vargus and Keeran met in the hallway. Keeran told
Vargus that she had been looking for her to which Vargus replied that she and Keeran had
different break times. Neither Keeran nor Vargus said anything else to one another. Keeran
denied that the entire incident ever occurred.
After carefully reviewing the record, I credit Vargus’ version of events for several
reasons. First, Vargus had a specific recollection of the conversation and events surrounding
this incident. She appeared even tempered, and her demeanor was composed and steady. In
contrast, Keeran’s testimony was generalized, non-specific and amounted to general,
perfunctory denials that the incident occurred. On balance, due to Vargus’ status as a current
employee, testifying against her pecuniary interest, I found her testimony inherently more
credible than that of Keeran.38 As such, I find that the conversation between Vargus and
Keeran, as Vargus testified, occurred.

37 See Flexsteel Industries, supra at 749 (regarding reliability of former employee witness’ testimony).
38 Gold Standard Enterprises, supra (regarding the inherent reliability of the testimony of current employees). .
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
18
b. Keeran told Housemen Cortez and Aguayo that their hours would be reduced
if they supported the Union
Relying primarily on the testimony of Houseman Jose Perez Cortez (Cortez), I find
the following facts.
Housemen Cortez and Ryan Aguayo (Aguayo) work on-call for Respondent. Both of
them wore Union buttons. Some time in June 2015, Cortez and Aguayo clocked in for the
day and walked to the Housekeeping office to view their work schedules. At some point,
they ran into Keeran, who looked at their Union buttons, and said, “If the Union comes in,
you’ll [meaning all on-call personnel] only receive 20 hours [of work] or less.” Cortez
replied “well, in that case, I don’t really want [the Union] here. I’m sorry I didn’t know.”
Keeran did not respond to Cortez’s remark.
Although Cortez testified that, after this conversation, he wore his Union button
underneath his jacket for fear of being retaliated against, Cortez admitted that, despite
wearing his Union button, he was promoted from an on-call houseman, at the time of his
conversation with Keeran, to a full time houseman, after the conversation. Again, Keeran
denied the statements attributed to her.
While I found Aguayo generally credible, I found Cortez’s testimony particularly
credible for several reasons. First, Cortez’s testimony was corroborated by Aguayo. Second,
both Cortez and Aguayo were direct and specific in their recall of the conversation with
Keeran and were even-tempered and non-evasive in their answers. In contrast, other than her
general denials that the conversation occurred, Keeran offered no explanation to rebut
Cortez’s and Aguayo’s specific recall of the conversation that day.
Lastly, and most importantly, I credit Cortez’s (and Aguayo’s) testimony over that of
Keeran, due to their status as current employees. Under these circumstances, their testimony has
a special guarantee of reliability.39 As such, I find that when Keeran saw Cortez and Aguayo
wearing their Union buttons, she told them that if they supported the Union, their hours would be
cut down to 20 hours or less per week.
5. Officer Green confronts group of GRAs about Union handbilling outside Trump
Hotel
At all material times, Olivia Green (Green) served as a Security Officer for
Respondent. She was responsible for protecting/securing the inside and outside of the hotel
and ensuring the safety of guests, employees and other individuals at the Hotel.
On or about February 28, 2015, GRA Vargus arrived at work at 7:30 a.m. Her shift began
at 9 a.m. that day. Vargus secured her belongings and walked to the front of the hotel to

39 Id.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
19
participate in a handbilling event organized by the Union. GRA Rivera also arrived around 7:30
a.m. that morning and she, together with GRAs Llarull, Blanco, Aleman, Jose Martinez
(Martinez) and others met in the front of the hotel to participate in the event. It is undisputed that
the GRAs intended to distribute Union flyers to the guests of the Hotel.
Sometime around 7:30 a.m., while Officer Green was patrolling the property, she saw
four or five GRAs, who were in uniform, and other individuals standing on the sidewalk in front
of the Hotel. It is undisputed that the front sidewalk is public property. None of the GRAs had
flyers in their possession.
Officer Green approached the GRAs and asked them what they were doing. Although
Green testified that someone replied “we have business here,” I credit Vargus’ testimony that she
told Green that the GRAs were participating in a Union activity. At that point, Green told the
GRAs that they were not allowed to handbill because it was private property. No one responded.
At that point, Green left the group, radioed the Security Control Desk, advised them about what
she observed and requested back up. Officers Cornelius Johnson (Johnson) and Jesus Bonales
(Bonales) were dispatched to the front of the Hotel.
At some point, Union Organizers Jose Pineda (Pineda), Ramiro Navas and Mercedes
Castillo arrived with the Union flyers. Vargus told Pineda that Green told the group that they
could not handbill on the sidewalk. At that point, Green returned to the group accompanied by
Officers Johnson and Bonales. When the officers approached the group, they again asked the
GRAs what they were doing to which Vargus responded “we are doing our union activity and we
have all the right to do that.” While Green denied she said anything to the group after Officers
Johnson and Bonales arrived, I credit Vargus’ testimony that Green again told the group that they
could not gather in front of the building and distribute flyers to hotel guests. Officers Johnson
and Bonales were not called as witnesses and did not testify at the hearing.
In any event, Officer Johnson also told the group they could not gather on the sidewalk
because they were on private property. In response to Vargus’ comment about the group’s right
to handbill, Johnson told Vargus words to the effect, “You, get in your car and go home.” Vargus
refused and told Johnson, “No, I’m in my right.” At that point, Pineda interjected and told the
officers that the GRAs had the right to handbill on the public sidewalk and asked for the officers’
names. While there was some considerable testimony as to whether Green told the group that she
was the commander in chief of the officers, I find that none of the officers gave their names to
the group.
At some point, Security Director Clyde Turner (Turner) was notified of the encounter and
he radioed the officers to back away from the GRAs. They complied. However, the GRAs left
the sidewalk and walked inside the Hotel to clock in for work.
In making the above factual findings, I found Vargus’ testimony more credible than
Green for several reasons. First, although I found Vargus and Rivera unreliable concerning the
guest room incident, on this occasion Vargus’ testimony was corroborated, almost exactly, by
GRA Rivera, who I also found credible. Second, both Vargus and Rivera were specific, direct
and straightforward in their testimony and had great recall of the events surrounding this
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
20
incident. Vargus’ (as well as Rivera’s) tone and demeanor were even-tempered and their specific
recall of events left me believing they were telling the truth.
In contrast, I did not find Officer Green particularly credible for a number of reasons.
First, I note that Green’s testimony was extremely vague on who said what during the encounter,
as opposed to Vargus, who was specific in her testimony. Second, Green’s testimony was direct
and specific on the events that appeared favorable to Respondent but was evasive in her answers
when questioned by the General Counsel (as a Rule 611(c) witness) about what the officers said
to the group. Her inconsistent recall of events gave me the impression that she was being less
than forthright in her testimony and was skewing her testimony to support Respondent, her
employer.
I also noticed that Green often smiled, shifted in her chair and hesitated with her
answers, particularly when the question would have required her to say something unfavorable
toward Respondent. Her overall nonverbal communication left me with the impression that she
was reluctant to answer the General Counsel’s questions. In those instances, particularly when
the General Counsel asked her a direct question about who said what during the incident, Green
often responded “I don’t recall.” Since Officers Johnson and Bonales were not called to testify,
Green’s testimony was not independently corroborated.
Third, while Green generally denied the remarks attributed to her, because of her overall
demeanor during her testimony, I did not find her particularly credible. Lastly, because Vargus
and Rivera are current employees, their testimony had heightened credibility.40 Accordingly,
I credit Vargus’ version of the events (set forth above) regarding the handbilling incident.
6. Officer Slovak questions Blanco about distributing Union literature while eating
lunch in the EDR
At all material times, Danny Slovak (Slovak) was a full-time Security Officer. Like
Officer Green, Slovak was charged with patrolling/protecting the interior and exterior sections of
the Hotel and to ensure employee and guest safety and overall satisfaction.
It is undisputed that Security Officers took staggered lunches in the EDR between 11 a.m.
and 1 p.m. In so doing, they must punch out for lunch and are not on the clock.
Some time after the February 28, 2015 handbilling incident, security personnel, including
Slovak, received a passdown report from Security Director Turner on what to do if they saw
employees handbilling in/on/around the property.41 In the passdown, officers were told that
GRAs were not allowed to handbill in the EDR and could not distribute anything beyond the
doors of the Hotel. Officers were instructed not to remove the flyers from employees; but rather,
to report any employees handbilling if, in the officer’s view, the handbilling created an

40 Id.
41 A passdown is a verbal/written instruction from either Security management or Security Director Turner explaining to
security personnel how to handle security issues or deal with certain situations occurring in/around the Hotel.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
21
annoyance to guests. If the handbilling did not create an annoyance, officers were told to allow
the GRAs to handbill. Officers also were instructed that if they were on lunch and they saw
employees handbilling, they could use their discretion on whether to report it.
It is undisputed that sometime in June 2015, Slovak was eating lunch in the EDR at a
table closest to the entrance and food line. Another employee was seated at the table across from
Slovak. While eating his lunch, Slovak saw GRA Blanco, who was also on her lunch break,
handing out Union flyers to employees in the EDR. Although Blanco testified that Slovak told
her that she could not handbill in the EDR, I find that Blanco misunderstood Slovak’s remark as
she admittedly understood little English and asked another coworker sitting next to Slovak to
translate his comment from English to Spanish. That employee was not called to corroborate
Blanco’s testimony.
Instead, I credit Slovak’s testimony that he asked the employee sitting next to him
“I didn’t know they had that [meaning handbilling in the EDR] approved?” In response, the
gentleman chuckled but did not say anything in response.
Thereafter, apparently someone else at the table told Slovak something to the effect that,
“it’s legal what’s she [Blanco] is doing so long as it’s done before work, during lunch or after her
tour.” While Blanco testified she asked for Slovak’s name and he refused to give it, I again credit
Slovak’s testimony that he gave Blanco his full name. At that point, Slovak finished his lunch
and left the EDR. It is undisputed that Blanco continued handing out flyers in the EDR that day
without incident.
In crediting Slovak’s version of events, I found he was direct, specific, and unambiguous
in his testimony on direct and cross examination. Slovak was not evasive with his answers. His
demeanor and tone appeared confident and his testimony was unbiased. Moreover, but for one
disputed fact—Blanco asking for Slovak’s name—their testimony corroborated each other.
Although Blanco, like many other of her coworker’s testimony, is presumed especially
reliable given she is a current employee of Respondent, I note that Slovak is also a current
employee of Respondent.42 Overall, Slovak’s testimony struck me as truthful which made his
version of events particularly believable.
7. Manager Doucette confronts Blanco in employee parking lot while she was
distributing Union literature
There is considerable disputed testimony surrounding this incident. However, after my
review of the record, relying upon the credible testimony of former Food and Beverage Manager
James Doucette (Doucette), I find as follows:

42 Gold Standard Enterprises, supra (concerning the reliability of current employees’ testimony).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
22
At all material times, Doucette served as Respondent’s Food and Beverage Manager. He
is approximately 6’6” tall and weighs 260 pounds.43
Some time in March 2015, prior to one of Doucette’s afternoon shifts, he was in the
employee parking lot near the rear entrance of the Hotel on his way into work. The employee
parking lot is not a restricted area, but it is reserved for employee parking. As Doucette was
walking into the Hotel, he saw one of his Department’s busser employees talking with a woman
that he did not know or recognize but who was later identified as GRA and Committee leader
Blanco. Although Blanco wore her identification badge on a lanyard around her neck, Doucette
could not see the badge when he initially saw Blanco talking with the busser. It is undisputed that
Blanco was off-duty that day so she was not wearing her work uniform.
Blanco testified that, as she was in the midst of soliciting the busser, Doucette walked
over and yelled, “Don’t do that” and directed her to go to security with him. According to
Blanco, she responded, “Are you security? I’m an employee, and I have a right to be here” then
showed Doucette her work badge. Blanco, who described herself as a “little person,” testified
that Doucette moved close to her, shoved Blanco with his left arm and told her to go to security.
At that point, according to Blanco, the busser looked frightened by Doucette so she reassured
him that her solicitation was legal.
However, I credit Doucette when he testified that, upon noticing that his busser looked
annoyed with Blanco’s solicitations, he walked over and asked Blanco in English, “Do you work
here?” Blanco, who admittedly spoke/understood little English, replied, “No, don’t work here.”
At that point, Doucette asked Blanco to come inside the Hotel to security so he could determine
her identity and whether she could continue to solicit in the employee parking lot. As Doucette
and Blanco walked to the Security Department inside the Hotel, he stood close to Blanco as he
opened the door to allow her to proceed through the door. Doucette turned as Blanco walked
through the door at which point he saw his busser quickly leaving out of the parking lot. The
busser was not called to testify.
Doucette and Blanco proceeded to Turner’s office, with Blanco walking behind Doucette.
Doucette told Turner that he saw Blanco outside talking to a busser and wanted to check if there
were any issues with it. Turner responded that there were no issues, apologized to Blanco for
being brought into security and told her she could return to the parking lot. Blanco then asked for
Doucette’s name. At that point, Turner replied, “You don’t need to know that but you can go
back to doing what you were doing,” but Doucette voluntarily gave Blanco his full name. At that
point, Blanco left Turner’s office and returned to the parking lot to continue soliciting
employees.
I credit Doucette’s testimony over that of Blanco for several reasons. First, Blanco
admittedly spoke/understood little English, so much so that if someone was speaking to her in
English, Blanco often required someone to translate what was said from English to Spanish.

43 Tr. 1502–1503.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
23
Since the busser was not called to give his version of what occurred during Doucette’s and
Blanco’s conversation and given Blanco’s difficulty understanding English, I find it believable
that, when Doucette asked Blanco if she worked for Respondent, she misunderstood and
responded “No.”
Second, in observing Doucette on the stand, I found that he listened carefully to
questions, testified openly, was not evasive, and maintained the same demeanor regardless of
who was examining him. Although the General Counsel made much to do about Doucette’s lack
of recall about specific events, I attributed his specific lack of recollection on some aspects of the
events reasonable given the isolated nature of the incident that took place for five to 10 minutes
and occurred eight months prior to the hearing. Rather, I found Doucette recalled the main points
of the incident clearly and his testimony was unambiguous and forthcoming. Overall, Doucette’s
tone and demeanor was composed and steady, and he struck me as committed to speaking the
truth.
Lastly, while I note that Blanco is a current employee whose testimony should warrant
enhanced reliability, Doucette, being a former manager of Respondent, was under no obligation
to testify favorably toward Respondent.44 For these reasons, I found Doucette’s testimony
unbiased and forthright; and as such, found his version of the events to be slightly more credible
than Blanco.
8. Guzman’s termination
Martha Guzman (Guzman) was a GRA for Respondent. She was initially hired on
June 6, 2013 as an on-call GRA but was promoted to full time on May 23, 2014. At all
material times, Magaña served as Guzman’s supervisor. Guzman’s employment was
terminated on July 22, 2015.
While many of the facts surrounding Guzman’s termination are undisputed, the
reasons behind her discharge are hotly contested. Because I found Guzman’s testimony
wholly and completely incredible (for reasons discussed later in this decision), I find the
following facts occurred.
a. Respondent’s Attendance Policy
It is undisputed that Respondent has a no-fault punctuality and attendance policy located
in its Associate Handbook.45 Under Respondent’s attendance policy, associates are charged
points for various attendance-related violations—from reporting to work late, failing to clock in

44 Flexsteel Industries, supra (concerning the reliability of a former employee’s testimony).
45 GC Exh. 11 at 34–37; see also Tr. 173–174, 189–190, 896, 1132–1133; 1260, 1609–1610.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
24
or out, calling off or being absent from work.46 In addition, attendance points are increased if
associates are absent during “peak periods,” when the Hotel is at 100% occupancy.47
Under Respondent’s point system, an associate who has accumulated four points is
subject to a verbal coaching. At 5.5 points, the associate receives his/her first written warning.
At seven points, the associate receives a second written warning. At eight points, an associate is
subject to a suspension. When an associate reaches ten points, discipline is escalated to a
suspension pending an investigation (“SPI”) for termination.
Once an associate reaches the SPI stage, they must turn in their badge and are placed on
leave pending the outcome of the investigation. At that point, the associate’s attendance records
and/or other pertinent information are referred to either the Director or Assistant Director of
Human Resources Director to determine whether management should terminate the employee.
Associates can reduce accrued attendance points by one point for each 30-day period that
they are not absent. Associates also do not accumulate points if their absence is due to a work-
related injury, FMLA leave, and/or military service. Moreover, if an employee is out for
consecutive days, points will only accrue for the first date of absence. In addition, points may be
excused for other justifiable reasons, at management’s discretion, based upon, for example, the
circumstances surrounding the associate’s absence or tardiness, whether the absence was caused
by an emergency or whether the situation was outside of the associate’s control. Associates may
be required to provide a doctor’s note to excuse an absence, but if management suspects that an
employee is excessively absent or abusing the policy, a doctor’s note alone may not excuse an
absence or prevent an employee from accumulating attendance points.
b. Call-Off Procedures and Attendance Tracking
GRAs who call off work typically contact the Hotel’s outside switchboard, called the
PBX, or they call the Housekeeping Department directly. Either a status clerk or whoever
received the GRA’s call will send an email to both Magaña/Housekeeping management and the
status clerks to report the call-off.
GRAs attendance points are kept on an attendance calendar, which is an Excel
spreadsheet maintained on Respondent’s computer system. Attendance points are logged onto
the employee’s computerized attendance calendar by either Keeran or Administrative Assistant
Vania Mariscal (Mariscal). Keeran and Mariscal notify the associate when they accrue
attendance points, but associates are ultimately responsible for tracking their own attendance
points.
When an employee reached a certain number of attendance points warranting discipline,
Keeran or Mariscal noted the disciplinary level on the attendance calendar and notified either

46 GC Exh. 11 at 35.
47 Id. at 36–37; see also Tr. 194–196, 232–234, 1353–1354.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
25
Magaña or Assistant Housekeeping Director Kwon. At that point, Magaña or Kwon determined
whether the discipline should issue and were responsible for issuing the appropriate discipline or
triggering an SPI. Prior to Magaña becoming the Housekeeping Director, attendance related
discipline was inconsistently noted on the attendance calendars. Magaña sought to bring more
consistency in the marking/issuing of attendance related discipline.
c. Guzman’s Attendance Record
It is undisputed that, prior to her termination, Guzman had a history of attendance
problems. Guzman often told Magaña about the various family problems she was having which
caused her to be absent from work.48
It is undisputed that, because of her family problems, Magaña often adjusted Guzman’s
attendance points in an effort to try to work with Guzman. However, Magaña repeatedly told
Guzman that she would not be able to continue helping Guzman and that Guzman needed to
work on her attendance. Despite this advice, Guzman’s attendance problems continued.
It is undisputed that Guzman accumulated two points during her first six months as a
GRA.49 On January 19, 2014, Guzman received another point for calling in, which led to her
first verbal coaching. On February 15, 2014, Guzman called off again during a peak period,
which earned her two points, brought her total to five points, and triggered her first written
reprimand.50
Guzman called off again on February 23, 2014, less than four hours prior to her shift,
which should have counted as two points.51 However, after Magaña deducted one point, Guzman
was left with a total of six points, warranting a second written warning.52 Then, in March 2014,
Guzman accrued two half-points for being tardy and failing to clock in.53
On April 3, 2014, Guzman accrued four points for calling off work less than four hours
before her shift and during a peak period, which brought her total to 11 points.54 At this point,
Guzman should have received an SPI for her exceeding 10 points.55 However, Guzman provided

48 As examples of her many family issues, Guzman told Magaña she was absent from work because: her uncle was missing,
the same uncle was dying, Guzman was beaten up by her husband, she was having issues with her daughters, Guzman was
evicted from her apartment, another one of Guzman’s uncles was having health problems, and/or Guzman was having health
issues. Although Guzman denied telling Magaña that someone beat her up, she nevertheless admitted all of the other family
issues that caused her to be absent from work.
49 R. Exh. 26.
50 R. Exhs. 4, 27.
51 GC Exh. 11, R. Exh. 4.
52 R. Exh. 4.
53 Id. at 4.
54 R. Exh. 1 at 4.
55 GC Exh. 11 at 35.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
26
a hospital doctor’s note, and because Magaña was new to Housekeeping and wanted to work
with Guzman, Magaña accepted Guzman’s doctor’s note and deducted the four points.56
Guzman reported tardy on May 2, May 14, and again on May 30, 2014, which raised her
to nine points.57 However, Magaña again deducted one point, which brought Guzman to eight
points and triggered a suspension. While Guzman wrote on her disciplinary form that she had not
received a second written warning and testified that she did not recall speaking to Magaña about
removing attendance points, Guzman’s testimony is belied by the documentary evidence.58
Guzman had no attendance issues for 30 days after her suspension. As such, by June 30,
2014, Guzman dropped to seven attendance points.59
Guzman called off on July 12, 2014, which brought her back up to eight points. Although
a suspension was noted on her attendance calendar, after speaking with Magaña, Guzman was
not suspended at that time. Although Guzman testified that Magaña never found her attendance
unacceptable, her testimony is totally belied by the documentary evidence.60
In October 2014, Guzman again hit 10 points after she incurred a total of four half-points
between August and early October, 2014 for being tardy and taking inappropriate breaks.
Guzman should have received another SPI at this point, but after Guzman explained her
situation, Magaña again gave her a break.
Guzman continued to have serious attendance issues into the fall. She called off on
November 2, 2014, which brought her to 11.5 points. Keeran entered a note on Guzman’s
attendance calendar that “[s]he [Guzman] said it was FMLA, but she does not have FMLA.
I mentioned this to Alejandra [Magaña] on November 2.”61 At that point, Magaña explained to
Guzman that she was not eligible for FMLA. However, Guzman told Kwon that the November 2
call-off was due to the death of her uncle. In any event, no points were deducted, but Guzman
was not placed on an SPI despite having 11.5 attendance points.
On December 2, 2014, Guzman had one point deducted for going 30 days without any
absences. However, she was 28 minutes tardy for her 8:30 a.m. shift on December 3, which
brought her to 11 points. On December 12, instead of issuing an SPI, Magaña issued a
suspension after deducting three points in order to accommodate Guzman’s personal issues. This
brought Guzman’s total to eight points.
In her suspension notice, Guzman was advised that it was her responsibility to track her
attendance points. In addition, Guzman was warned that if she did not improve her attendance,

56 Tr. at 1167.
57 R. Exh. 1 at 4–5; see also R. Exh. 3.
58 R. Exh. 3 at 2; R. Exh. 4.
59 R. Exh. 1 at 5.
60 R. Exhs. 1, 3, 4.
61 R. Exh. 1 at 5.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
27
she could be terminated.62 While Guzman wrote a comment on her suspension notice that she
did not believe she was late on December 12, again the documentary evidence showed
otherwise.63
By the time of Guzman’s 2014 performance review, completed in early 2015, it is
undisputed that Guzman was rated below expectations for attendance because she “. . . struggled
with attendance, whether it has been calling in on many occasions or being late.”64 It is
undisputed that Guzman had no less than fifteen occurrences of tardiness or calling off work by
the end of 2014.
Unfortunately, Guzman’s attendance failed to improve in 2015. Guzman had one point
deducted in January 2015 for going 30 days without any absences. However, Guzman called off
on February 5, 2015 during a peak period, less than four hours before her shift. At that point, she
accrued four points, but after speaking with Magaña, the four points were deducted.65 However,
Magaña told Guzman that she could not keep deducting points since it appeared to Magaña that
Guzman was abusing the system versus making efforts to improve her attendance.66
On February 24, 2015, Guzman again called off during a peak period with less than four
hours’ notice.67 At this point, Guzman would have accrued 12 points, which would have
triggered an SPI.68 However, before Magaña could address Guzman’s discipline, Guzman called
off on March 11, which added to her point total.69 When Magaña finally spoke with Guzman,
she brought a doctor’s note for her absences and prior tardy. Magaña deducted seven points
which brought Guzman down to seven total attendance points. At that point, believing Guzman
was abusing her leniency, Magaña told Guzman that she could not help her anymore.70
Guzman testified that, although she had heard about the Union earlier in 2015, she began
wearing a Union button sometime beginning in April 2015. Both Magaña and Wandick admitted
that they saw Guzman wearing her Union button from April 2015 until her termination.
On April 1, 2015, Guzman was late for her shift, which moved her to eight points, and
triggered a suspension.71 By this time, Magaña testified that she was at her wit’s end with
Guzman and her pleas to have her attendance points deducted.

62 R. Exh. 1.
63 Id. at 6; Tr. 1177–1178.
64 R. Exh. 29; Tr. 1191–1193, 1270–1271.
65 R. Exhs. 2, 6.
66 Tr. 1178, 1214.
67 GC Exh. 14.
68 R. Exh. 2.
69 R. Exh. 2; GC Exh. 14; see also Tr. 1163, 1179.
70 Tr. 1180.
71 R. Exh. 2.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
28
As a result, on April 2, 2015, Magaña asked Kwon to issue the suspension to send a
message to Guzman that Magaña would no longer continue to deduct points whenever Guzman
brought in an excuse.72 Kwon drafted the suspension on April 6, 2015 when he next returned to
work. Kwon served Guzman with the suspension on April 7.73
On April 10, 2015, Guzman complained to Magaña that her suspension “wasn’t fair,”
however Magaña told Guzman that the suspension would stand.74 At that point, Magaña noticed
that Kwon did not sign the second page of the suspension so she signed her name instead.
It is undisputed that Guzman was absence-free for a month, which dropped her to seven
points.75 Around May, Guzman asked Mariscal how many attendance points she accumulated, to
which Mariscal told her she had seven points.76
On May 16, 2015, Guzman again called off during a peak period which added two points.
Guzman had accumulated nine points, which resulted in her being suspended again for exceeding
eight points.77 Guzman did not provide an excuse or ask Magaña to deduct the points for this
absence. Guzman had no attendance issues for 30 days after the suspension issued, which
dropped down to eight points effective June 16, 2015.78
a. Guzman’s Termination
On July 2, 2015, Guzman arrived at work but had not clocked in. As she arrived,
Guzman felt dizzy, as if her chest was constricted. Guzman told Anita (last name unknown) that
she did not feel well, and Guzman was taken into the security department. Someone from
security checked Guzman’s blood pressure and it was determined to be high. An ambulance was
called, but when ambulance personnel arrived and asked Guzman what happened, due to her
symptoms, she was unable to tell them. Thereafter, Guzman was taken to the hospital for further
evaluation.
At some point after being evaluated at the hospital, Guzman spoke to Wandick where she
told him that she had been transported to the hospital. She also told Wandick that the doctor was
placing her off work for five days from July 2. Wandick told Guzman to bring her doctor’s note
when she returned to work. According to Guzman, she was given a doctor’s note then released
from the hospital around 6:00 p.m. While Guzman thought she was excused from work for five
days—from July 2 to July 7, her doctor’s note only excused her for three days—or from July 2 to
July 5.79 Guzman admitted she never reviewed the note after leaving the hospital.

72 Tr. 1180–1181, 1271, 1602–1603.
73 R. Exhs. 2, 47.
74 R. Exh. 2; Tr. 1181.
75 R. Exh. 6 at 4.
76 Tr. 1354, 1357–1358, 1608–1609.
77 R. Exh. 5.
78 R. Exh. 6.
79 R. Exh. 10.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
29
Nevertheless, at 4:57 p.m. on July 2, Wandick emailed Housekeeping Department
management, Mariscal, Keeran, and the status clerks, that “Martha will be out until the 5th.
Please do not do task sheet [meaning put her on the schedule].”80 Guzman was scheduled to be
off work on July 5 and 6, so her next scheduled work day was July 7.81
On July 7, 2015, at 4:15 a.m., Guzman called Housekeeping Supervisor Walter Rubi
(Rubi) to call off for her shift starting at 8:30 a.m., during a peak period. While Guzman denied
that she called off on July 7, again, her testimony is clearly belied by the documentary
evidence.82 In any event, Rubi notified Housekeeping’s management team of Guzman’s absence
via email. Thus, at this point, without having received the doctor’s note, Guzman’s July 7
absence was marked as a two-point violation, which brought her to 10 points and triggered
another SPI.83
Guzman returned to work on July 8.84 Although Guzman testified that she gave Magaña
her doctor’s note and Magaña told her she was “ok” to return to work, it is undisputed that
Magaña was on vacation on July 8 and did not return to work until July 9.85 Thus, I find
Guzman never gave Magaña her doctor’s note on July 8 and her testimony on this point is
completely unreliable.
In any event, Guzman did not work on July 9, but worked again on July 10.86 When
Magaña returned to the office on July 9, learned of Guzman’s absence and saw the doctor’s note,
Magaña decided to issue Guzman an SPI. According to Magaña, Guzman had reached ten points,
the doctor’s note only covered Guzman’s absence from July 2–5, and there was nothing that
justified Guzman’s absence on July 7.
Magaña informed Assistant HR Director Gustavo Acosta (Acosta) of the proposed
discipline. Since Kwon was on vacation, Magaña asked Wandick to issue the SPI, which he did
on July 15.87
On July 15, 2015, Guzman’s next work day, Wandick met with Guzman and gave her the
disciplinary notice. Per procedure, Wandick asked Guzman to return her badge and keys and sign
the disciplinary notice. She did not agree with the SPI.
At some point that day, Guzman met with Acosta in HR who told her that the reason she
was being suspended was because she had accrued 10 attendance points which triggered the SPI.

80 R. Exh. 32.
81 R. Exh. 9 at 7; Tr. 1155–1156.
82 R. Exhs. 7, 8, 28; see also Tr. 246–250, 1155, 1183, 1251–1252, 1340.
83 R. Exh. 6; Tr. 246–247, 1183–1186.
84 R. Exh. 8; Tr. 1247.
85 R. Exhs. 41, 48, Tr. 1605–1607, 1677.
86 R. Exh. 8.
87 R. Exh. 6.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
30
According to Guzman, Acosta told her he would investigate the matter and contact her with
further instructions/information.
At some point, Guzman noted on the disciplinary notice that “I ask [sic] Vani[a Mariscal]
on July before I was sick that you guys took me to the hospital how many points I have. She said
7 point[s]. I don’t understand why I have 10 points. If I had 7 July, I went up to 10 points.”88
Nevertheless, Guzman refused to sign the disciplinary notice and was escorted off the property.
Thereafter, Acosta conducted the investigation. Some time after her suspension on July
15, Acosta called Guzman to discuss the circumstances surrounding her SPI.89 While Guzman
testified that all Acosta told her was to return to work on July 22, I credit Acosta’s testimony
where he explained the investigation process. During the telephone conversation, Guzman told
Acosta that she gave Magaña her doctor’s note for her absences and Mariscal told her she only
had seven points. Afterward concluding his conversation with Guzman, Acosta spoke with
Mariscal, where Mariscal confirmed that she told Guzman she had seven points back in May,
before the additional absences in July pushed Guzman to ten points.
Acosta also spoke with Magaña to confirm whether she received Guzman’s doctor’s note.
Acosta eventually received Guzman’s doctor’s note from Mariscal where he saw that the note
excused her from July 2 through July 5 but not for July 7.90 Acosta noted that Guzman was not
assessed points for the days excused by her note but he found no reason to deduct points for her
absence on July 7.
Lastly, Acosta reviewed Guzman’s schedule and attendance log for accuracy. He
compared the notations on Guzman’s attendance calendar with her schedules, time punches, and
attendance records. In so doing, Acosta noticed that Magaña had deducted several points from
Guzman’s attendance records but ultimately determined that Guzman had been given more than
enough opportunities to address her attendance issues.91 At the conclusion of Acosta’s
investigation, he told Magaña that they would proceed to termination.
On July 22, Acosta met with Guzman and Magaña to discuss Guzman’s termination. At
the meeting, Acosta told Guzman that, despite the breaks Magaña provided, Guzman reached the
maximum number of points allowed under Respondent’s attendance policy; therefore she would
be terminated. Acosta also told Guzman that he needed to be consistent with all employees and
could not give her any more breaks on her attendance. Although Guzman continually testified
that she did not understand how she accrued 10 points because her doctor’s note excused her
until July 7, she admitted that she never mentioned this during her termination meeting with
Acosta and Magaña.

88 Id.
89 R. Exhs. 7–9.
90 R. Exh. 10.
91 GC Exh. 14; R. Exh. 6; see also Tr. 227–229, 261.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
31
In any event, Acosta gave Guzman a Personnel Action Form (“PAF”), which Guzman
refused to sign.92 On July 22, 2015, Guzman was terminated for absenteeism in violation of
Respondent’s punctuality and attendance policy.
It is undisputed that, since June 2014 through Guzman’s termination, Respondent
terminated 14 Housekeeping employees (excluding Guzman, employees terminated for job
abandonment [no-call/no show] and probationary employees) for attendance problems.93
In making the above factual findings, I credit Acosta’s and Magaña’s testimony over
Guzman’s. Specifically, I found Acosta credible in that he listened carefully to questions and
maintained the same demeanor regardless of who examined him. Although I did not find
Magaña particularly credible concerning other incidents in this case, the documentary evidence
corroborated her testimony.94
By contrast, I found Guzman wholly incredible for many reasons. First, she
misrepresented the facts on numerous occasions, and even when caught in several
inconsistencies (by the documentary evidence), she continually maintained her unreliable
testimony. For example, Guzman vehemently denied signing one of her suspension notices or
writing the comments in the associate remarks. However, in comparing one of her suspension
notices in Respondent Exhibit 29, that Guzman admittedly signed, with her suspensions found in
Respondent Exhibits 1, 2, and 3, I find that all of the signatures are identical.
Second, Guzman routinely made inconsistent statements throughout her testimony. For
example, while Guzman testified that, on July 8, Magaña gave her the “all clear” after Magaña
saw Guzman’s doctor’s note, when confronted with her Board statement (also known as her
Jencks statement), Guzman admitted that she never mentioned anything about her July 8
conversation with Magaña. In fact, I find that Guzman never gave Magaña her doctor’s note on
July 8, as she claimed, because Magaña was on vacation that day. Similarly, although Guzman
testified that Wandick told her she was being fired for accumulating 10 attendance points, she
never mentioned this conversation in her Board statement.
Similarly, while Guzman also testified that Magaña never told her that her attendance
was unacceptable, the documentary evidence proved otherwise. Guzman also insisted that her
doctor verbally told her that he would excuse her from work from July 2–7, 2015. However,
when confronted with the written doctor’s note, her only explanation for the discrepancy was
that she never reviewed the note (even after hospital personnel gave it to her); but rather, she
simply relied on what her doctor told her. Guzman’s explanation defies common sense, and her
inconsistent testimony made her totally unbelievable.

92 R. Exh. 11.
93 R. Exh. 49.
94 See Daikichi Sushi, 335 NLRB 622, 622 (2001) (credibility findings need not be all-or-nothing propositions, and it is
common for a fact finder to credit some, but not all, of a witness’ testimony).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
32
Lastly, Guzman’s demeanor on the stand detracted from her overall credibility. Guzman
became extremely emotional only after being confronted with her inconsistent statements.95
Moreover, she gave guarded testimony, particularly on cross examination, which struck me as
less than forthright. In fact, Guzman was only forthcoming (to the extent she was) when
confronted with the documentary evidence that proved her testimony unreliable. In sum, I did
not find Guzman credible, reliable or truthful in her testimony.
III. DISCUSSION AND ANALYSIS
In the complaint, the General Counsel alleges that a number of Respondent’s supervisors
and agents violated Section 8(a)(1) of the Act when they: (1) interrogated GRAs about their
Union activities; (2) surveilled GRAs and created an impression that GRAs’ Union activities
were under surveillance; and/or (3) threatened employees with reprisals because of their support
for the Union. However, before delving into the merits of the allegations, I must address
Respondent’s contention that Status Clerk Lead Keeran is not a supervisor/agent and that
Officers Green and Slovak are not agents of Respondent. I turn to that question now.
A. Whether Keeran, Green and Slovak are Supervisors/Agents of Respondent
Keeran is Not a Supervisor/Agent of Respondent
During the hearing, Respondent orally moved for summary judgment and dismissal of all
complaint allegations against Christina Keeran (Keeran) on the grounds that the General Counsel
failed to prove Keeran is a supervisor/agent under Sections 2(11) and 2(13) of the Act. The
General Counsel requested leave to respond to Respondent’s motion in writing within her post-
hearing brief, which was granted.96 Respondent timely filed a reply.
In paragraphs 4, 5(c) and 5(i) of the complaint, the General Counsel alleged that
Status Clerk Lead Keeran’s unlawful statements to GRA Vargus and Houseman Cortez are
attributed to Respondent because she is a supervisor as defined by Section 2(11) of the Act.
However, in her brief, the General Counsel abandons this theory and presents no evidence as to
Keeran’s supervisory status with Respondent. Therefore, and in agreement with the case law and
arguments cited by Respondent, I conclude that the General Counsel has effectively waived her
claim that Keeran is a supervisor of Respondent; and accordingly, I grant Respondent’s motion
for summary judgment as to Keeran’s supervisory status.97

95 At one point, Guzman was so tearful she wanted to be excused from the stand because she felt under the weather.
However, she recovered almost instantaneously upon being told that she would not be excused without a doctor’s note explaining
that she was medically incapacitated from testifying and her testimony would be rescheduled.
96 The deadlines for the parties’ responses were set forth on the record.
97 See Compact Video Services, 319 NLRB 131, 144 (1995) (party waived arguments concerning confidentiality of
documents which were not raised in the party’s brief); United States v. Kitsap Physicians Service, 314 F.3d 995, 999 (9th Cir.
2002) (holding that plaintiff waived argument because he failed to present evidence in opposition to the motion for summary
judgment in either the written briefs or affidavits); BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., 531 Fed. Appx. 784, 786 (9th
Cir. 2013) (plaintiff waived argument by failing to raise it in its opposition to summary judgment).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
33
Alternatively, the General Counsel asserts that, pursuant to Section 2(13) of the Act,
Keeran is an agent of Respondent, because the Hotel held out Keeran and “placed [her] in a
position in which employees would reasonably understand [Keeran] to have authority to speak
on behalf of Respondent.”98 I disagree.
The Board applies common law principles of agency when it examines whether an
employee is an agent of the employer if s/he makes a particular statement or takes a particular
action. Under these common law principles, the Board may find agency based on either actual or
apparent authority. As to the latter, “[a]pparent authority results from a manifestation by the
principal to a third party that creates a reasonable basis for the latter to believe that the principal
has authorized the alleged agent to perform the acts in question.”99 The test then is whether,
under all the circumstances, employees “would reasonably believe that the employee in question
was reflecting company policy and speaking and acting for management.”100 The position and
duties of the employee alleged to be an agent are relevant in determining agency status.101 Thus,
it is well settled that an employer may have an employee’s statement attributed to it if the
employee is “held out as a conduit for transmitting information [from management] to the other
employees.”102 The Board also considers whether the alleged agent’s statements or conduct were
consistent with those of the employer.103
After reviewing the documentary and testimonial evidence, I conclude that Keeran is not
an agent of Respondent.
First, the General Counsel asserts that Keeran was held out as a conduit of information
from management to employees by virtue of answering questions and/or communicating with
GRAs about scheduling, their attendance points, and/or their requests and/or eligibility for
FMLA. However, I find that, to the extent Keeran communicated with employees regarding
these tasks, it was general information performed on a purely routine basis in her role as that of a
timekeeper.
The record also shows that when Keeran called GRAs to ask them whether they wanted
to work a shift or stay home, it was done only at the behest of management after a review of the
schedule and needs of the Hotel that day. Keeran never used her own judgment to determine
whether to add or reduce the GRAs working on the schedule or to whom she should contact in
that regard. Ultimately, Magaña was responsible for the GRA’s work hours and schedules.
Similarly, with respect to conveying attendance points and FMLA leave to the GRAs, the
evidence reveals that Keeran simply answered routine questions and gave GRAs general
information about what their attendance points were and their eligibility/lack thereof for FMLA.

98 GC Br. at 23.
99 Southern Bag Corp., 315 NLRB 725 (1994). See also Alliance Rubber Co., 286 NLRB 645, 646 (1987).
100 Waterbed World, 286 NLRB 425, 426–427 (1987), citing Einhorn Enterprises, 279 NLRB 576 (1986).
101 D&F Industries, Inc., 339 NLRB 618, 619–20 (2003), citing authorities.
102 Debber Electric, 313 NLRB 1094, 1095 fn. 6 (1994).
103 D&F Industries, Inc., supra.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
34
Again, Magaña was ultimately responsible for answering questions concerning the consequences
of accruing attendance points, determining the level of discipline vis-à-vis attendance points, and
eligibility for FMLA benefits. Thus, I find that Keeran was simply an experienced employee
entrusted with nonsupervisory lead authority in this regard.104
I also do not find evidence that other employees would have reasonably viewed Keeran
as speaking for management. Keeran rarely, if ever, attended “Trump Talks” or directed other
GRA meetings on behalf of management. She did not have authority to hire, fire, train or
discipline GRAs. In fact, many of the GRAs who testified were unsure as to Keeran’s title or
position with Respondent. When asked by the General Counsel the names of Respondent’s
managers, the majority of the GRAs named “Christina,” but they did not know the last name.
This is significant because Krystyna (pronounced Christina) Stills was one of Respondent’s floor
managers, while Christina Keeran was the Status Clerk Lead.
Similarly, Housemen Cortez and Aguayo gave equally vague testimony regarding their
knowledge of Keeran’s position. While Cortez testified that Keeran was a “manager,” he
subsequently admitted that Keeran was a “lead.” Nevertheless, he admitted that he rarely if ever
spoke or had any contact with Keeran. Similarly, Aguayo testified that Keeran was “the
attendance lady…the one that tells your attendance and takes your schedule…she takes my
schedules and fixes my attendance sometimes.”105
The General Counsel also argues that GRAs reasonably viewed Keeran as Respondent’s
agent because Keeran sat at the floor manager’s table to perform her duties. However, the
General Counsel cites no case law or Board precedent finding that the location of an employee’s
work station determines agency status. Even if the location of Keeran’s work station were a
factor in determining agency, while many of the GRAs testified that “Christina” sat at the
managers table, it was unclear whether they meant Stills, the floor manager, or Keeran.
The evidence shows that Keeran shared a desk with certain managers but also with other
status clerks. Moreover, to distinguish herself from the other managers in the office, Keeran
wore a uniform similar to the other status clerks in the office while managers never wore
uniforms. However, none of the GRAs testified that they saw Keeran wearing regular clothing.
In any event, I fail to see how Keeran’s attire or where Keeran sat in the Housekeeping office
shows that Respondent held her out as its agent.
Lastly, Keeran’s job duties do not reflect that she is or ever was held out to be an agent of
Respondent. Although Keeran inputted the GRAs’ initial work schedules into a computer

104 Knogo Corp., 265 NLRB 935, 935–936 (1982) (a non-supervisory “lead” employee’s role as a “conduit of information”
to employees was insufficient to warrant agency status; rather, the relaying of information “indicates no more than [the fact that
the employee] is an experienced employee entrusted with nonsupervisory lead authority.”). See also Meyer Jewelry Co., Inc., 230
NLRB 944, 945 (1977) (declining to find agency status simply because a lead employee may be “entrusted with additional
responsibility solely because of their experience and familiarity with an employer’s operations.”).
105 Tr. 973–974.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
35
program, the computer populated a “draft” schedule based upon the needs of the Hotel during the
time period in question. Thereafter, the schedule was reviewed, adjusted and approved by
Magaña. Thus, Keeran’s work in creating the 12-day work schedule was of a routine nature, with
no evidence showing she exercised independent judgment or had any authority to determine who
worked which schedule on a certain day.
As stated above, to the extent that Keeran assisted with housekeeping payroll, she did so
by keeping track of employees’ attendance points on their computerized attendance calendars.
She notified Magaña if a GRA’s attendance points triggered a discipline level per Respondent’s
attendance policy. She did not determine or issue discipline. Keeran also manually entered
GRAs’ clock-in and clock-out times only when Respondent’s computerized fingerprinting
system malfunctioned. If Keeran signed off on employees’ vacation requests, it was done rarely,
under exigent circumstances, and if authorized by management.
On balance, I find that none of Keeran’s duties would reasonably lead anyone to
conclude that Keeran was speaking or was held out as an agent for Respondent. Rather, as stated
above, I find, and the evidence clearly reveals, that Keeran was essentially a timekeeper/lead
administrative assistant who was “entrusted with additional responsibility solely because of [her]
experience and familiarity with an employer’s operations.”106 Accordingly, I conclude Keeran is
not an agent of Respondent, and I grant Respondent’s motion for summary judgment as to her
agency status.
1. Green and Slovak are Agents of Respondent
In its answer to the complaint, Respondent also denied that Officers Green and Slovak
were its agents. However, based upon the evidence, I disagree.
An employer may be held liable for unfair labor practices committed by security guards
acting in their official capacity.107 The Board has also found that security guards have apparent
authority if they are placed in a position to stop individuals from trespassing and if they give
directions related to being present on or distributing literature on the employer’s property.108 As
with the analysis regarding Status Clerk Lead Keeran, the test for apparent authority is whether,
under all of the circumstances, employees would reasonably believe that the employee in
question was speaking/acting on behalf of the respondent.109

106 Meyer Jewelry Co., Inc., supra.
107 Saint Johns Health Center, 357 NLRB 2078, 2096 (2011), citing Opryland Hotel, 323 NLRB 723 fn. 3 (1997) (security
guards acting under direct authority from upper management violated Section 8(a)(1) by threatening to have employees charged
with trespassing for distributing pro-union literature); Bakersfield Memorial Hospital, 315 NLRB 596 (1994); Southern
Maryland Hospital Center, 293 NLRB 1209 (1989)).
108 See Perdue Farms, Inc., 323 NLRB 345, 351 (1997) (security guards placed in a position to stop individuals from
entering premises are cloaked with apparent authority); Publix Super Markets, Inc., 347 NLRB 1434, 1452 (2006) (as to
directives regarding distributing literature on employer’s property).
109 See Waterbed World, 286 NLRB 425, 426–427 (1987).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
36
Clearly, both Officers Green and Slovak were given apparent authority by Respondent to
ensure the safety of individuals, employees and guests located in and around the Hotel. Their
own job descriptions attest to their authority to take control over Respondent’s premises and
grounds to ensure individuals have right to be on Respondent’s property and remove those who
are trespassing.110 In so doing, Green and Slovak have authority to verbally advise or direct
persons to certain locations on the premises or, if warranted, for their removal from the property.
To find otherwise, Respondent would essentially be asking me to find that unknown persons
dressed in a security uniform patrol their property unbeknownst to Respondent without the
authority to do or say anything if individuals are trespassing or harming employees or guests in
any way. Such a theory is preposterous.
Here, the evidence clearly establishes that Officer Green was given apparent authority to
instruct the GRAs whether they could gather outside of the Hotel as part of her overarching
duties as a security officer. Thus, to the extent Green told personnel how and where they could
gather on Respondent’s property, they would have understood Green’s instructions as speaking
for Respondent.
Similarly, Slovak was instructed by security management to report employee’s
handbilling if, in his discretion, the handbilling was an annoyance. Thus, to the extent that
Slovak said anything to anyone about handbilling, personnel would understand him to be
speaking for Respondent. Based on this, a reasonable employee would understand that Green and
Slovak had apparent authority to speak on behalf of Respondent with regard to appropriate (or
inappropriate) behavior occurring in and around Respondent’s facility. I therefore conclude that
Green and Slovak acted as Respondent’s Section 2(13) agents.
B. Whether Respondent Violated the Act as Alleged
1. Section 8(a)(1)—Interrogation Violations
Turning to the merits of the complaint, the General Counsel first argues that Respondent,
through Status Clerk Lead Keeran, Security Officer Green, Floor Manager Wandick and
Housekeeping Director Magaña, violated Section 8(a)(1) of the Act by interrogating GRAs about
their Union membership, activities and sentiments.
Interrogating an employee about his/her Union support/sympathies violates Section
8(a)(1) of the Act if, under all the circumstances, the questions reasonably tend to restrain, coerce
or interfere with Section 7 rights.111 Factors that may be considered to determine whether an
alleged interrogation is unlawful include: the identity of the questioner and his/her status in the
employer’s hierarchy, the place and method of questioning, the truthfulness of the employee’s
answer, any background of the employer’s hostility, the nature of the information sought, and

110 Poly-America, Inc., 328 NLRB 667, 667–668 (1999) (security guards act as employer’s agents where they act under
employer’s specific instructions in ejecting unwanted persons from its property).
111 Rossmore House, 269 NLRB 1176, 1177–1178 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985) (citing Bourne v. NLRB,
332 F.2d 47 (2d Cir. 1964).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
37
whether the employee is an open union supporter.112 While not an exhaustive list that should not
be mechanically applied, the aforementioned factors are intended to guide the fact-finder in
determining, as a whole, whether the questioning at issue tended to restrain, coerce or interfere
with an employee’s Section 7 rights. The General Counsel bears the ultimate burden of proving
Respondent’s conduct interfered, restrained and/or coerced employees from exercising their
Section 7 rights.113
With regard to the allegations involving Status Clerk Lead Keeran, because I previously
concluded that Keeran is not a supervisor or agent of Respondent, Respondent cannot be held
vicariously liable for Keeran’s statements to GRA Vargus. Accordingly, I dismiss paragraphs
5(c) and (i) of the complaint.
In paragraph 5(d) of the complaint, the General Counsel asserts that Officer Green
unlawfully interrogated (and created an impression of surveillance, discussed later in this
decision) a small group of GRAs when they gathered to handbill on February 28, 2015. I agree.
Respondent essentially contends that Officer Green’s interrogation did not reasonably
tend to restrain, coerce or interfere with the GRAs Section 7 rights, because she simply asked, as
part of her job as a security officer, what the GRAs were doing gathered together in front of
Respondent’s premises. However, I disagree.
Although ordinarily, it is not unusual (or unlawful) for a security officer to ask a group of
employees what they were doing standing on a public sidewalk outside of Respondent’s facility,
in this case, the evidence reveals otherwise. Applying the Rossmore House/Bourne factors,
Green’s conduct occurred in the context of Respondent’s documented hostility toward the GRAs
unionizing, in general, and a prior ULP against Respondent involving GRA Vargus, the object of
Green’s interrogation. Next, Green is an agent of Respondent vested with authority to remove
individuals from Respondent’s property and report them to the police. Thus, any interrogation by
Green about the nature and purpose of the GRAs gathering would reasonably be viewed as
coercive.
Although Green testified that she had no idea what the GRAs were doing on the public
sidewalk, I do not find her credible since there had been prior efforts by the GRAs to organize
Respondent’s housekeepers. Even assuming Green was unaware that the GRAs were
participating in a Union activity that day, if she had simply observed the gathering after being
informed what the GRAs were doing, her actions likely would have been lawful. However,
Green did something more.
Rather, the credited evidence reveals that, after she learned the purpose of the GRAs’
gathering, Green told them that they could not handbill where they were located. Then, Green

112 Scheid Electric, 355 NLRB 160, 160 (2010), see also Manorcare Health Services–Easton, 356 NLRB 202, 218 (2010);
Westwood Health Care Center, 330 NLRB 935, 939 (2000); Evergreen America Corp., 348 NLRB 178, 208 (2006).
113 29 U.S.C. § 160(c) (violations of the Act are adjudicated “upon the preponderance of the testimony” taken by NLRB).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
38
called for backup while the group prepared to handbill. Such actions, from a security officer,
who had authority to remove the GRAs from Respondent’s premises and report them to the
police, would be viewed as highly intimidating and coercive. Furthermore, I agree with counsel
for the General Counsel that the GRAs’ truthful response to Green’s questioning supports the
proposition that Green’s interrogation made them fearful that they could be removed from the
property or reported to the police if they did not respond truthfully. Viewing the totality of the
circumstances, I find that Respondent, through Officer Green, violated Section 8(a)(1) of the Act
when she interrogated a group of GRAs who gathered together on the public sidewalk in front of
the Hotel to handbill.
I also find that Wandick unlawfully interrogated GRA Vazquez about how she would
vote in the Union election. Again, applying the Rossmore House/Bourne factors, first, Wandick,
a floor manager, was the second highest level manager in the housekeeping department below
Magaña, the housekeeping director. Second, the nature of the question itself—i.e., how Vazquez
would vote in the Union election, is inherently coercive. Despite Vazquez’s apparent statement
that she would not support the Union, the context of Wandick’s interrogation occurred when he
had been directed by Magaña to assess each GRA’s level of support for the Union. As such, his
questioning of Vazquez was even more coercive.
While Respondent made much to do about Vazquez’s and Gonzalez’s differing testimony
about where Wandick questioned Vazquez (inside or outside of Magaña’s office), I nevertheless
credit the General Counsel’s witnesses that the comment was made. Even assuming Wandick
questioned Vazquez immediately within the doorway of Magaña’s office but still within the
housekeeping office, the location was nevertheless intimidating since the interrogation occurred
between Wandick, Vazquez and Gonzalez in an area where no one else could hear. Finally, the
fact that Vazquez was visibly upset and refused to answer the question also lends credence to the
intimidating nature of the interrogation. On the whole, I find Wandick’s actions violated Section
8(a)(1) of the Act as his conduct would reasonably be viewed as tending to restrain and/or
interfere with Vazquez exercising her Section 7 rights.
Similarly, I find Magaña’s questioning about Garcia’s union sympathies violated the Act.
Here, Magaña, the Director of Housekeeping and Garcia’s supervisor, was the highest level
manager in housekeeping. Magaña questioned Garcia about why she wore a Union button,
which is inherently coercive. Moreover, the location of the questioning, alone in Magaña office,
heightens the intimidating nature of the interrogation. In addition, the context of Magaña’s
interrogation occurred during her directive to assess, rate and report the GRAs’ level of support
for the Union to HR. While Garcia, to her credit, attempted to defend herself and deflect
Magaña’s interrogation, I find Garcia’s responses indicative of how threatened she was with
Magaña’s inquiries.
In defending Magaña’s remark, Respondent argues that its witnesses were more credible
than Garcia and Jamarillo. However, I found otherwise. Alternatively, citing Print Fulfillment
Services LLC, 361 NLRB No. 144, slip op. at 1–2 (2014), Respondent contends that Magaña’s
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
39
traitor comment, without an explicit or implied threat of reprisal, does not violate Section
8(a)(1). Here, Respondent argues that since Magaña’s statement did not contain any explicit or
implicit threat, the comment was nothing more than Magaña’s personal opinion about the Union
protected by Section 8(c) of the Act.114 I disagree.
In Print Fulfillment, the Board, in agreeing with the ALJ, found Respondent violated the
Act when a supervisor told an employee that he was “disappointed” by his employee’s support
for the Union after he saw the face of that employee, who was also a Union solidarity committee
member, on a Union flyer.115 In agreeing with the ALJ, the Board found that the judge:
. . . correctly found that a reasonable employee would interpret [the supervisor’s]
remark as threatening the possibility of reprisals as a result of [his]
disappointment in [the employee’s] support for the Union. We find in the
circumstances presented here that [the supervisor’s] statements and actions
reasonably tended to convey that he was not merely disappointed in [the
employee], but felt strongly enough to take action against [the employee]. To
begin, [the supervisor] suggested that he was about to say something better left
unsaid (“I’ve been debating . . . whether I’m going to say anything. . . .”). Next,
he indicated that his feelings were strong enough to overcome his hesitation (“I
say what I feel.”). He then expressed that he was “disappointed” in [the
employee]. When [the employee] attempted to deflect [his supervisor’s]
“disappointment” by suggesting that the flyer’s depiction of [the employee] may
have been unauthorized, [the supervisor] did not continue the conversation, which
might have mitigated the coercive tendency of his statement. Instead, he just
turned and walk away “red-faced”—apparently confirming his strong feelings
about the matter and demonstrating that he did not wish to hear from [the
employee] further. In those circumstances, we find that a reasonable employee in
[that employee’s] place would fear that his supervisor’s stated “disappointment”
could manifest itself in subsequent reprisals.116
Although Respondent cites Print Fulfillment for the proposition that, in order to find a 8(a)(1)
violation, a supervisor’s interrogating statement must be accompanied by a threat of reprisal, that
is not what the Board held in Print Fulfillment. Rather, the standard the Board considered was
whether, under the circumstances, a reasonable employee would fear that a supervisor’s remark
could manifest in reprisals. This is exactly what Garcia feared regarding Magaña’s traitor
remark.
Like in Print Fulfillment, after learning of Garcia’s support for the Union, Magaña
questioned Garcia’s loyalty toward her (and Respondent) and then told her, “At this time, I see

114 See 29 U.S.C. § 158(c); see also NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969 ) (“an employer is free to
communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so
long as the communications do not contain a ‘threat of reprisal’ or force or promise of benefit’”).
115 Print Fulfillment, 361 NLRB No. 144, slip op at 1–2 (2014).
116 Id. at 2.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
40
you as a traitor . . . I thought you were on my side, but now I see that you are one of the ones
who attends the Union meetings.” Garcia’s fear of reprisal is manifested in her response when
she immediately apologized to Magaña for disappointing her, denied that she attended Union
meetings but defended her right to show her support for the Union. As such, any reasonable
employee in Garcia’s position would fear that that they could be punished because of their
support for the Union. Viewing the entire exchange as a whole, I find that Respondent, through
Magaña, sought to restrain, coerce and interfere with Garcia’s Section 7 rights by unlawfully
interrogating her about her Union sympathies.
2. Section 8(a)(1)—Surveillance/Creating the Impression of Surveillance Violations
The General Counsel next asserts that, on several different occasions, Respondent,
through Supervisor Wandick, Operations Director Vandegrift and Officer Green, violated
Section 8(a)(1) of the Act by surveilling/creating the impression that the GRAs’ Union activities
were under surveillance.
The test for determining whether an employer engages in unlawful surveillance or
whether it creates the impression of surveillance is an objective one and involves the
determination of whether the employer’s conduct, under the circumstances, was such that would
tend to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under
Section 7 of the Act.117 Specifically, the trier of fact must view the evidence on the whole and
determine whether the employee would reasonably assume from the employer’s conduct and/or
statements made that their union activities had been placed under surveillance.118
Although an employer’s mere observation of open, public union activity on or near its
property will not constitute unlawful surveillance, the employer may not, “do something ‘out of
the ordinary’ to give employees the impression that it is engaging in surveillance of their
protected activities.”119 The Board’s analysis thus focuses on whether the observations were
ordinary or represented unusual behavior.120
In paragraph 5(d) of the complaint, the General Counsel avers that Respondent, through
Officer Green, violated the Act by creating an impression of surveillance concerning the
handbilling incident. For reasons discussed in the above analysis regarding this incident, I find
that Respondent violated Section 8(a)(1) of the Act as alleged.
Although Green, as part of her duties as a security officer, often patrols Respondent’s
premises and observes individuals to ensure they are not trespassing, in this case, Green did
something more. In fact, rather than first contacting security to determine whether the GRAs had

117 See Broadway, 267 NLRB 385, 400 (1983) (citing United States Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
118 See Fred’k Wallace & Son, Inc., 331 NLRB 914 (2000).
119 Id. at 915; Loudon Steel, Inc., 340 NLRB 307, 313 (2003); see also Partylite Worldwide, Inc., 344 NLRB 1342 (2005);
Arrow Automotive Industries, 258 NLRB 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982); Sprain Brook Manor Nursing Home,
351 NLRB 1190 (2007).
120 Aladdin Gaming, LLC, 345 NLRB 585 (2005), rev. denied 515 F.3d 942 (9th Cir. 2008).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
41
the right to participate in their Union activity on the public sidewalk, Green told GRA Vargus
and the group they could not handbill in the area where they were located. Subsequently, Green
called for backup while she watched the union organizers arrive and prepare the union flyers.
Moreover, even after the additional security officers were told by Vargus and the Union
organizers what the GRAs were doing, Green and the other security officers again told them to
leave the premises. As such, in light of the circumstances as a whole, I find that Green’s conduct
constituted more than “mere observation,” but “represented unusual behavior” on the part of a
security officer that would reasonably lead Vargus and the group to conclude that their Union
activities were under surveillance.121 Accordingly, I conclude that Respondent violated the Act
as alleged.
Complaint paragraph 5(f) alleges that Supervisor Wandick unlawfully surveilled and/or
created an impression that Llarull’s handbilling activities were under surveillance when Wandick
snatched and tore up a Union flyer, crossed his arms across his chest, and stood looking at
Llarull before leaving with the employee. However, I do not find that Wandick engaged in the
conduct alleged as the General Counsel’s witnesses were not credible.122 Rather, the evidence
reveals that, to the extent Wandick left with an employee while Llarull was handbilling, he did so
either to introduce the new employee to his trainer, to ensure that the employees were not
engaging in side conversations during the Trump Talk, or for some other legitimate reason.123
While Wandick may have observed Llarull (and others) distributing flyers in the EDRs,
in this instance, he did not engage in conduct so “out of the ordinary” that it rose to the level that
one could find that Llarull’s activities were under surveillance.124 Accordingly, I conclude that
Respondent, through Wandick, did not violate Section 8(a)(1) of the Act as alleged.
However, I find that Respondent, through Wandick, violated Section 8(a)(1) of the Act
when he surveilled and/or created the impression of surveillance around GRA Aleman as he
conversed with a fellow coworker. Specifically, I find Wandick’s presence behind Aleman
particularly troubling in light of the fact that his conduct occurred after being directed to observe,
rate and report to upper management how GRAs viewed the Union. As stated earlier, Wandick, a
floor manager, is a second level manager behind Magaña. While Wandick may have had a
legitimate reason to patrol the EDR before and during Trump Talks, on this occasion, the
evidence supports that Wandick did not patrol, but stood relatively close behind Aleman, a
known Union supporter, while he conversed with a fellow GRA about the Union. Although
Wandick testified that he often stood around employees to ensure they were paying attention
during the Trump Talks, I credit Aleman’s testimony that Wandick had not engaged in this
“heightened presence” previously. Thus, under the totality of the circumstances, I find that, on
this occasion, Wandick engaged in conduct “out of the ordinary” which would reasonably lead

121 Id.
122 See Section B(2)(a), supra.
123 Lechmere, Inc., supra.
124 See Glen Rock Ham, 352 NLRB 516, 521 (2008); Mid-Mountain Foods, Inc., 332 NLRB 229, 237 (2000) (no unlawful
surveillance where supervisor, as part of his job to oversee employee’s work, observed employee and his work and instructed him
“to be more careful”).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
42
Aleman to believe that his conversations with his coworker about the Union were under
surveillance.125
Next, in paragraph 5(k) of the complaint, the General Counsel contends that Supervisor
Wandick’s “lengthy and heated confrontation” with GRAs Rivera and Vargus in a guest’s room
amounted to surveillance and created the impression of surveillance. However, the evidence does
not support the General Counsel’s assertions in any way.
Rather, the credited testimony reveals that Wandick arrived in the guest’s room when he
learned that the guest’s request for a foam mattress insert had not been delivered. When he
arrived, he simply asked Rivera and Vargus what they were doing since normally two GRAs
were not assigned to service a guest room. The documentary evidence clearly reveals that
Wandick did not arrive with a mattress in tow; rather, Wandick put a “rush” on the mattress
when he arrived in the guest room and left immediately after. The mattress was delivered to the
guest later in the evening. There is absolutely no evidence that Wandick told Rivera or Vargus
that they could not speak or talk to guests. Nor did Wandick engage in any “unusual behavior” in
his discussions with Rivera and/or Vargus on this occasion. Rather, all the evidence
demonstrates that Wandick simply addressed a housekeeping matter as one of Respondent’s
floor managers.126 In fact, other than Rivera’s and Vargus’ testimony, which I did not find
credible, I found no evidence that the incident occurred much less had anything to do with
Rivera’s or Vargus’ Union support. Accordingly, I find that Respondent did not violate the Act
as alleged in paragraph 5(k) of the complaint.
Finally, complaint paragraph 5(n) asserts that Respondent, by Wandick and Operations
Director Vandegrift, violated the Act when they stood by the EDR, greeted employees and told
them to vote “no” in the Union election. However, as stated in the factual section above (Section
B(2)(c), supra), the General Counsel presented no evidence concerning this allegation.
Accordingly, and in agreement with the arguments and case law cited by Respondent, I find
Respondent did not violate Section 8(a)(1) of the Act as alleged and dismiss paragraph 5(n) of
the complaint.
3. Section 8(a)(1)—Threatening Employees for Engaging in Union Activities Violations
The General Counsel next asserts that Respondent, by Manager Doucette, Status Clerk
Lead Keeran, Floor Manager Cretin, and Housekeeping Director Magaña violated the Act by
threatening employees with unspecified reprisals for engaging in union activities.
In assessing whether a remark constitutes a threat, the appropriate test is “whether the
remark can reasonably be interpreted by the employee as a threat.”127 The actual intent of the

125 Fred’k Wallace & Son, Inc., supra at 914.
126 Aladdin Gaming, LLC, supra; see also Mid-Mountain Foods, Inc., 332 NLRB at 237 (no unlawful surveillance where
supervisor, as part of his duties to oversee employee’s work, told employee to be more careful).
127 Smithers Tire & Automotive Testing of Texas, 308 NLRB 72 (1992).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
43
speaker or the effect on the listener is immaterial.128 The “threat in question need not be explicit
if the language used by the employer or his representative can reasonably be construed as
threatening.”129 The Board considers the totality of the circumstances in assessing the reasonable
tendency of an ambiguous statement as a veiled threat to coerce.130
As you might imagine, determining whether an ambiguous statement is an illegal threat
versus an opinion about the possible consequences of unionization has proven difficult. It must
be assessed in a fact-specific manner, taking into account the employer’s right to freedom of
speech under Section 8(c) of the Act, balanced against the employees’ right to be free from
coercive threats under Section 7. In NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), the
U.S. Supreme Court addressed this tension, stating:
It is well settled that an employer is free to communicate to his employees any of
[its] general views about unionism or any of [its] specific views about a particular
union so long as the communications do not contain a “threat of reprisal or force
or promise of benefit.” [The employer] may even make a prediction as to the
precise effect [it] believes unionization will have on the company. In such a case,
however, the prediction must be carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably probable consequences beyond
[its] control.131
An employer need not remain neutral during a union campaign, and Section 8(c) permits
the employer to campaign against the union and present an alternate view, ensuring that
employees are fully informed about their choice.132 However, employers must present their view
without threatening employees. As the Court noted in Gissel, “the Board has often found that
employees, who are particularly sensitive to rumors of plant closings, take such hints as coercive
threats rather than honest forecasts.”133 In balancing these competing interests, the Board has
held that threats of job loss or loss of hours in retaliation for engaging in union activities violate
Section 8(a)(1) of the Act.134 Likewise, threats not to promote employees due to their protected
activities also violate the Act.135

128 Smithers Tire, 308 NLRB 72 (1992); see also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981) (inquiry
under Sec. 8(a)(1) is an objective one which examines whether the employer’s actions would tend to coerce a reasonable
employee).
129 NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970).
130 KSM Industries, 336 NLRB 133, 133 (2001).
131 See also National Propane Partners, L.P., 337 NLRB 1006, 1017 (2002).
132 See, e.g., Steam Press Holdings, Inc. v. Hawaii Teamsters, 302 F.3d 998 (9th Cir. 2002).
133 Gissel, supra at 619–620 (footnotes omitted).
134 United/Bender Exposition Service, 293 NLRB 728, 732 (1989); Middletown Hospital Association, 282 NLRB 541
(1986); Air Express International, 281 NLRB 932 (1986); Fiber Glass Systems, 278 NLRB 1255 (1986); Foundation of
California State University, 255 NLRB 202 (1981); Louis Gallet, Inc., 247 NLRB 63, 63 at fn. 1 (1980).
135 QSI, Inc., 346 NLRB 1117, 1118 (2006); Hospital Shared Services, Inc., 330 NLRB 317, 318 (1999); Prudential
Insurance Co. of America, 317 NLRB 357 (1995); Marmon Transmotive, 219 NLRB 102, 113–114 (1975); Ford Motor Co., 251
NLRB 413, 422 (1980).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
44
In paragraph 5(e) of the complaint, the General Counsel claims that Respondent, by
Manager Doucette, threatened GRA Blanco with unspecified reprisals when he physically
pushed her in/around March 2015. However, the evidence reveals otherwise.
Although physically pushing employees while they are engaged in protected activity or
grabbing an employee by the arm and shaking a fist is coercive and violates Section 8(a)(1),136
neither occurred in this case. Rather, the credited testimony shows that Doucette saw GRA
Blanco, whom he did not recognize, attempting to converse with one of his bussers. When he
approached, he asked Blanco if she worked for Respondent, to which she, having difficulty
understanding English, replied, “No.” At that point, Doucette instructed Blanco to accompany
him to security to determine her identity and whether she had the right to distribute Union
literature in the parking lot. As they walked to the security office, Doucette held the door open
for Blanco, and to the extent she touched or came within close proximity to her, it resulted from
Doucette moving out of Blanco’s path so she could enter the security office. Without the
testimony of the busser to corroborate Blanco’s version of events, I found nothing about
Doucette’s statement to Blanco or his conduct during the incident that amounted to a threat of
unspecified reprisal resulting from Blanco’s protected activities.
Similarly, because I previously concluded that Status Clerk Lead Keeran is not a
supervisor or agent of Respondent, Respondent is not vicariously liable for any statements she
may have made to Houseman Cortez or Aguayo. Therefore, Respondent did not violate the Act
as alleged; and accordingly, I dismiss paragraph 5(i) of the complaint.
I also conclude that Respondent did not violate the Act regarding the discussion between
Floor Manager Cretin and GRA Diaz. Rather, the credited testimony demonstrates that when
GRA Diaz asked why she was no longer able to train new GRAs, Cretin responded that because
Wandick was the new training manager and had established new training procedures, she could
not train new GRAs until she took a training class Wandick created. Moreover, the record
reveals that Cretin subsequently asked Wandick why Diaz had not been training new GRAs and
he confirmed that Diaz had not taken the required training class. I found no credible evidence
that linked Cretin’s statement to Diaz’s Union support or participation.
Similarly, Cretin did not threaten that GRA Aleman would not be promoted because of
his support for the Union. Again, the credited testimony reveals that, when GRA Llarull asked
Cretin why Aleman did not get promoted to the white house position for which he applied,
Cretin candidly told her that Aleman was not promoted because he had prior discipline on his
record. She never told Llarull that Aleman did not get promoted due to his support for the Union.
While the General Counsel relied primarily on GRA Llarull’s testimony concerning this incident,
I did not find her credible. Without credible, corroborating evidence, I conclude that Cretin’s
remarks had nothing whatsoever to do with Llarull’s or Aleman’s Union support. Accordingly, I

136 Los Angeles Airport Hilton & Towers, 354 NLRB 843, 844 (2009), adopted by the Board in Los Angeles Airport Hilton
& Towers, 355 NLRB 602 (2010); see also Rike’s, A Div. of Federated Dept. Stores, 241 NLRB 240, 252 (1979).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
45
conclude that Respondent did not violate the Act as alleged in paragraphs 5(j) or (o) of the
complaint.
Finally, the General Counsel asserts that Magaña threatened GRA Garcia with
unspecified reprisals in calling her a traitor. For the reasons previously discussed, I agree with
counsel for the General Counsel that, in calling Garcia a “traitor” because she wore her Union
button, Magaña’s “obvious implication” was that Garcia’s support for the Union would result in
negative consequences. The Board has found that such statements equating Union activities to
disloyalty amount to unlawful threats.137 Accordingly, Respondent violated Section 8(a)(1) of
the Act as alleged in complaint paragraph 5(l)(2).
4. Section 8(a)(1)—Promulgated /Enforced Overly Broad Rules Violations
The General Counsel next avers that Respondent, by Manager Doucette, Supervisor
Wandick, and Security Officer Slovak, violated the Act by promulgating/enforcing an overly
broad work rule to discourage employees from supporting the Union and/or engaging in
protected concerted activity. Respondent vehemently denies that the conduct by any of the
named supervisors and/or agents created an overly broad, unlawful work rule much less violated
Section 8(a)(1). I agree.
An overly broad work rule will violate Section 8(a)(1) of the Act if it explicitly restricts
Section 7 activity.138 If the rule does not explicitly restrict Section 7 activity, the rule must be
evaluated to determine whether: (1) the rule was promulgated in response to union activity; (2)
the rule has been applied to restrict the exercise of Section 7 rights; or (3) employees would
reasonably construe the language in the rule to prohibit Section 7 activity.139 The Board must
give the rule a reasonable reading and refrain from reading particular phrases in isolation or
presume improper interference with employee rights.140 However, “where ambiguities appear in
employee work rules promulgated by an employer, the ambiguity must be resolved against the
promulgator of the rule rather than the employees who are required to obey it.”141 Ultimately, the
trier of fact must determine, under the totality of the circumstances, whether the rule in question
would reasonably tend to chill employees from exercising their Section 7 rights.
In agreement with Respondent, I find that the General Counsel failed to meet her burden
to establish that Doucette made the unlawful statements attributed to him much less created,
promulgated or enforced an overly broad rule prohibiting employees from distributing union
literature. Specifically, the credited testimony shows that Doucette tried to identify who was
speaking with his busser in the employee parking lot since he did not recognize Blanco and his

137 See Taffe Plumbing Co., 357 NLRB 2034, 2040 (2011); Hialeah Hospital, 343 NLRB 391, 391 (2004); Viracon, Inc.,
256 NLRB 245, 246 (1981); see also Print Fulfillment, supra.
138 Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004); Lafayette Park Hotel, 326 NLRB 824, 828 (1998), enfd.
203 F.3d 52 (D.C. Cir. 1999).
139 Lutheran Heritage, supra.
140 Id.
141 Norris/O’Bannon, 307 NLRB 1236, 1245 (1992).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
46
busser looked disturbed. Doucette asked Blanco whether she worked for Respondent, and when
she responded “no,” Doucette asked her to accompany him to the security office. Once Security
Director Turner confirmed Blanco’s identity and gave permission for Blanco to continue
handbilling, Blanco returned to the parking lot without incident. As such, I agree with
Respondent that, “At best…you have a manager seeking clarification as to whether Blanco could
do what she was doing.”142 In short, nothing about the entire encounter prohibited Blanco (or
anyone else) from engaging in Union activities.
Similarly, I find that Wandick never created, promulgated or enforced an overly broad
rule concerning the guest room incident. In fact, the credited testimony shows that Wandick
never told Rivera or Vargus they could not speak or talk to guests, and I find that the incident as
alleged never occurred. Other than Rivera’s and Vargus’ testimony, which was refuted by the
documentary evidence, the General Counsel failed to meet her burden to establish a rule was
created, promulgated or enforced.
Lastly, in paragraph 5(m) of the complaint, the General Counsel contends that
Respondent, by Officer Slovak, violated Section 8(a)(1) by promulgating/enforcing an overly
broad rule prohibiting GRA Blanco from distributing Union literature in the EDR around June
20, 2015. However, like the above-referenced incidents concerning Doucette and Wandick, the
General Counsel has failed to satisfy her burden of proof in this regard.
Rather, the credited testimony in the record reveals that Officer Slovak saw Blanco
distributing Union flyers in the EDR while he sat in the EDR eating lunch. At that point, Slovak
asked an employee sitting next to him whether Respondent had approved handbilling in the
EDR, because he had seen security directives that gave contrary instructions. When the
employee told him that GRAs were allowed to handbill in the EDR before their tour, during
lunch and after work, Slovak finished his lunch and left the EDR. Neither Blanco nor anyone
else was prevented from handbilling that day. In fact, there was absolutely no evidence
presented that shows that Slovak made the statements attributed to him much less created,
promulgated or enforced an overly broad unlawful work rule based upon his comments.
Accordingly, I find that Respondent did not violate the Act by promulgating/enforcing an overly
broad, unlawful work rule prohibiting employees from engaging in any type of Union activities.
5. Section 8(a)(3) Violation—Guzman’s Termination
Lastly, complaint paragraph 6 alleges that GRA Guzman was terminated because she
joined and assisted the Union and engaged in protected concerted activities.
Mixed motive cases, like the one in this case, are those where it appears that “unlawful
considerations were a motivating factor in the . . . discharge decision, but where the record
supports the potential existence of one or more legitimate justifications for the decision.”143 To

142 R. Br. at 120.
143 Dish Network, LLC, 363 NLRB No. 141, slip op at 4 (2016)(Mischimarra, concurring).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
47
assess whether a discharge is unlawful under Section 8(a)(3), the Board applies the mixed motive
analysis set forth in Wright Line, 251 NLRB 1083 (1980).144 Under Wright Line, the General
Counsel must first demonstrate, by a preponderance of the evidence, that Guzman’s protected
conduct was a motivating factor in her termination. The General Counsel satisfies this initial
burden by showing: (1) Guzman’s protected activity; (2) Respondent’s knowledge of such
activity; and (3) animus.
Here, the General Counsel established her prima facie showing. First, Guzman was a
Union supporter and began wearing her Union button in/around April 2015. Second, Magaña and
Wandick, the relevant management officials at issue, admitted that they knew Guzman supported
the Union and saw her wearing her union button at work. Finally, the record contains evidence of
Respondent’s general anti-union animus—(1) its statements that it opposed the Union,145 (2)
Magaña’s directive to managers to assess and rate the level of GRAs support for the Union,146
(3) Magaña’s unlawful threat of unspecified reprisals toward GRA Garcia for
displaying/expressing her support for the Union;147 and (4) the close timing between Guzman’s
outward support for the Union and her termination, all of which occurred within two months,
further supports the inference of unlawful discrimination.148
Once the General Counsel meets her initial burden under Wright Line, the burden of
persuasion shifts to Respondent to prove that it would have terminated Guzman even absent the
protected activity.149 To do this, Respondent cannot simply present a legitimate reason for its
adverse action; rather, it must demonstrate by a preponderance of the evidence that it would have
taken the same action in the absence of the protected conduct.150 If the employer’s proffered
reasons are pretextual (i.e., either false or not actually relied on), the employer fails by definition
to show that it would have taken the same action regardless of the protected conduct.151
Here, I find that Respondent has established that it would have terminated Guzman even
if she had not supported the Union. First, the evidence shows it was commonplace for
Respondent’s managers to use their discretion to adjust attendance points depending on the
circumstances. There was no evidence that Magaña somehow used her discretion to adjust points
more favorably toward employees who had an equal amount of attendance infractions/points as
Guzman but had not engaged in protected activity. Rather, I credited Magaña’s testimony that

144 Wright Line, 251 NLRB 1083, 1088–1089 (1980), enf’d. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
145 See Affiliated Foods, Inc., 328 NLRB 1107, 1107 (1999) (statements, even if lawful, can serve as background evidence
of anti-union animus).
146 Id.
147 Dish Network, LLC, 363 NLRB No. 141, slip op. at 1, fn. 1 (2016) (citations omitted) (general counsel is not required to
show a “particularized animus toward the employee’s own protected activity” to demonstrate animus).
148 See La Gloria Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71 Fed.Appx. 441 (5th Cir. 2003) (close timing between
protected activity and adverse action can be used to infer animus).
149 See, e.g., Mesker Door, Inc., 357 NLRB 591, 592 (2011); Wright Line, 251 NLRB at 1089.
150 Bruce Packing Co., 357 NLRB 1084, 1086–1087 (2011); see also W.F. Bolin Co., 311 NLRB 1118, 1119 (1993),
petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
151 Metropolitan Transportation Services, 351 NLRB 657, 659 (2007).
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
48
she used her discretion to adjust Guzman’s attendance points when warranted in order to work
with Guzman and her attendance issues but could no longer tolerate Guzman’s pattern of
attendance infractions or adjust her attendance points since she did not see Guzman making any
effort whatsoever to improve her attendance.
Second, the record demonstrates that Respondent terminated other housekeeping
employees, who did not support the Union, for similar attendance related problems. Although
such evidence is not dispositive, I find that it tips the balance in Respondent’s favor in showing
that its motives for Guzman’s termination were based on legitimate, nondiscriminatory factors.
Third, I credited Magaña’s testimony that her decision to stop adjusting Guzman’s
attendance points and proceed with a suspension and subsequent termination had nothing to do
with Guzman’s support for the Union. Again, there is no evidence that anyone else, who had a
similarly dismal pattern of attendance as Guzman, who did not support the Union, was treated
more favorably under similar circumstances.
To refute Respondent’s affirmative defense, the General Counsel argues that the timing
of Guzman’s discharge is suspect, since Guzman exceeded the requisite attendance points three
times before she began wearing her Union button and her attendance points were reduced;
however, after she began displaying her Union button and exceeded 10 attendance points, her
points were never reduced and she was terminated. However, again, I credited Magaña’s
testimony that she adjusted Guzman’s attendance points when warranted and in an effort to work
with Guzman but could no longer do so given Guzman’s continuing pattern of attendance
infractions. While Magaña admitted that she reached her breaking point with Guzman’s excuses
soon after Guzman began wearing her Union button, given the record as a whole, I credited
Magaña’s testimony that the timing was simply coincidental and had nothing to do with
Guzman’s union sentiments.
With respect to Guzman’s “misunderstanding” concerning the absence period covered by
her doctor’s note, the General Counsel found suspicious Respondent’s “sudden deviation from
its long-held discipline policy” when Magaña decided to stop taking into account Guzman’s
explanations for her absences. However, the General Counsel’s argument is disingenuous at
best.152
Rather, the evidence clearly reveals that Respondent never deviated from its discipline
policy; to wit—Magaña took into account Guzman’s doctor’s note and excused those absences
covered by the note (July 2-5), per the attendance policy, but could not excuse July 7, the date
not covered by the note. Per the attendance/discipline policy, Guzman was suspended then
terminated because her attendance point tally exceeded 10 points after she called off work less
than four hours before her shift began on July 7, during a peak period, without justification. In

152 GC Br. at 41.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
49
fact, the record shows that Magaña disciplined Guzman for her attendance infractions prior to
her support for the Union.153
Moreover, the fact that Respondent failed to verify Guzman’s note or question Guzman
about her understanding of the note’s instructions, as the General Counsel contends, does
nothing to show Respondent’s motive was pretextual. Rather, I note that the General Counsel
offered no evidence that Respondent undertook or deviated from such a practice with anyone in
the past.
The General Counsel also argues that Respondent’s reasons for discharging Guzman are
not to be believed because Guzman exercised the same call in measures – vis-à-vis, her doctor’s
note, as she had in the past; yet once she began openly supporting the Union, Respondent failed
to accept those same measures. However, the General Counsel misstates the facts.
Guzman was not terminated for failing to properly call off during the period covered by
her doctor’s note; she was terminated when she exceeded 10 points after calling off on a date not
covered by her doctor’s note. Because her attendance points reached the SPI discipline level, she
was suspended from work pending an investigation. When HR Director Acosta investigated
Guzman’s attendance record, someone who knew nothing about Guzman’s Union support, he
learned that Guzman had been perpetually absent from work but had been given multiple
opportunities to improve her attendance. He also discovered that Guzman misled him about the
number of attendance points she accrued at the time of her suspension. Finally, when Acosta
found no justification for her absence on July 7, the date she called off work that was not covered
by her doctor’s note, he determined that her termination was warranted.
The fact remains that the record is replete with evidence proving Respondent’s business
justification for Guzman’s termination. Specifically, the credited testimony and documentary
evidence demonstrates Guzman’s history and pattern of excessive absences. Magaña gave
Guzman multiple opportunities to improve her attendance, because she was new to
Housekeeping and she wanted to work with Guzman. Despite Magaña’s courtesy, Guzman
continued her pattern of multiple attendance infractions even after Magaña told her (on multiple
occasions) she could not continue adjusting her attendance points. While Magaña reached her
“wits end” with Guzman’s excuses around the time Guzman began wearing her Union button,
because I found Guzman completely incredible and unreliable (Section B(8)(d), supra),154 I
credited Magaña’s testimony as to the reasons she stopped adjusting Guzman’s attendance

153 See R. Exh. 1 (While Magaña took off three attendance points, she nevertheless suspended Guzman in December 2014
for having eight attendance points).
154 Guzman’s testimony could not be believed since she repeatedly misrepresented the facts. For instance, one—she
testified that she had never been given a second suspension concerning her absences when the documentary evidence clearly
showed she had; two—she stated that she never signed or wrote comments on her evaluation when, again, the documentary
evidence proved otherwise; three—she stated that she gave her doctor’s note to Magaña and Magaña gave her the “all clear”
when, in fact, Magaña was on vacation that day; and four—she told Acosta that Mariscal told her that she only had 7 attendance
points in July 2015 but she knew Mariscal told her in May that she had seven points. I found Guzman wholly incredible as a
witness.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
50
points, suspended then recommended Guzman’s termination, all of which I find, had nothing to
do with Guzman’s protected activity.
Accordingly, based upon the credited evidence in the record, I conclude that Respondent
did not violate Section 8(a)(3) of the Act when it terminated Guzman from her employment.
CONCLUSIONS OF LAW
1. Respondent, Trump Ruffin Commercial, LLC, d/b/a Trump International Hotel Las
Vegas is an employer within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by interrogating employees for
supporting the Union, displaying/expressing their Union sympathies and/or sentiments and by
interrogating employees about how they intend to vote in a Union election.
3. Respondent violated Section 8(a)(1) of the Act by surveilling employees and creating
an impression among employees that their concerted protected activities were under surveillance
when management increased their presence in the Respondent’s Employee Dining Room and
stood in close proximity of employees while they conversed about the Union.
4. Respondent violated Section 8(a)(1) of the Act by threatening employees with
unspecified reprisals for supporting the Union and/or displaying/expressing their Union
sympathies and/or sentiments.
REMEDY
Having found that Respondent engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to effectuate
the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended155
ORDER
The Respondent, Trump Ruffin Commercial, LLC, d/b/a Trump International Hotel Las
Vegas, its officers, agents, successors, and assigns, shall

155 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions
and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.
JD(SF)–31–16
5
10
15
20
25
30
35
40
45
51
1. Cease and desist from
(a) Interrogating employees for supporting the Union and/or displaying/expressing
their Union sympathies or sentiments in any way.
(b) Interrogating employees by asking them how they intend to vote in a Union
election.
(c) Surveilling or implying that employee’s Union activities would be under
surveillance.
(d) Threatening employees with unspecified reprisals for supporting the Union or
expressing their Union support, sympathies or sentiments in any way.
(e) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at Respondent’s hotel in Las
Vegas, Nevada, where the unlawful conduct occurred, copies of the attached notice marked
“Appendix”156 in both English and Spanish. Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees and former employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondent at any time since January
1, 2015.

156 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by
Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.”
5
10
15
20
25
30
35
40
45
(b) Within 21 days after service by the Region, file with the Regional Director
Region 28 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply.
Dated: Washington, D.C., July 22, 2016

JD(SF)
52
_____________________________________
Lisa D. Thompson
Administrative Law Judge
–31–16
for

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT interrogate you about your union support, participation, sympathies,
sentiments or activities.
WE WILL NOT interrogate you about how you intend to vote in a union election.
WE WILL NOT watch or make it appear to you that we are watching to see if you engage in
union activities.
WE WILL NOT, expressly or impliedly, threaten you with unspecified reprisals, because of the
way you show your support for the union or for your union participation, sympathies, sentiments
or activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
TRUMP RUFFIN COMMERCIAL, LLC
d/b/a TRUMP INTERNATIONAL HOTEL
LAS VEGAS
(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
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1400, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-149979 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
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, (602) 640-2146.