UNITE HERE Local 26

National Labor Relations Board - Board Decisions

Apr 29, 2005

344 N.L.R.B. 567 (N.L.R.B. 2005)

UNITE HERE LOCAL 26
344 NLRB No. 70
567
Hotel Employees and Restaurant Employees Interna-
tional Union, Local 26, AFL–CIO and Emma S.
Johnson. Case 1–CA–37883
April 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 4, 2001, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed cross-exceptions, a supporting brief, and an
answering brief, and the Respondent filed an answering
brief.
On October 1, 2001, the Board remanded this proceed-
ing in part for further consideration of the judge’s credi-
bility determinations. On October 30, 2001, the judge
issued the attached supplemental decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
We do not reach the remedial issue that is discussed by
Member Liebman in her dissent. The General Counsel
does not seek the remedy, and the Charging Party never
sought it. We recognize that the Board has the power,
sua sponte, to impose its own remedies. However where,
as here, we are considering a significant and substantial
change in remedial policy, we think it important to hear
and consider the pros and cons concerning the change.
In the instant case, we are not now presented with those
views.3

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 On January 10, 2005, the General Counsel submitted a motion to
withdraw the request for a special remedy made in the General Coun-
sel’s exceptions to the judge’s decision. We grant the General Coun-
sel’s motion, which is unopposed. We therefore need not address the
views of our dissenting colleague.
We shall substitute a new notice in accordance with Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), enfd. 354 F. 3d 534 (6th Cir.
2004).
3 We recognize that the General Counsel submitted a brief, favoring
the remedy, prior to his motion to withdraw the request for that remedy.
However, in light of that motion, we do not know whether, or to what
extent, the brief continues to reflect the views of the General Counsel.
Chairman Battista notes that there is no reason for his dissenting col-
league to be “puzzled” about this matter. Where, as here, a party with-
In an appropriate case, a charging party can present its
view, a respondent can present an opposing view, and the
General Counsel can present his views, including any
problems he may foresee in regard to implementation of
the remedy. We invite parties to present these matters in
an appropriate case. We do not now express any views
on these matters.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Hotel
Employees and Restaurant Employees International Un-
ion, Local 26, AFL–CIO, its officers, agents, and repre-
sentatives, shall take the action set forth in the Order as
modified.
Substitute the attached notice for that of the adminis-
trative law judge.
MEMBER LIEBMAN, dissenting in part.
A victim of discrimination who receives a lump sum
backpay award may incur a heightened tax burden as a
result. Today, by declining to order the “tax compensa-
tion” remedy originally sought by the General Counsel,
the Board wastes an opportunity to align its remedies
with the realities of existing tax law and to vindicate the
Act’s policy in favor of true make-whole relief for dis-
criminatees. Unlike my colleagues, I would deny the
General Counsel’s motion to withdraw his request for a
tax compensation remedy1: the General Counsel has not
adequately explained his reasons.2 In any case, the
Board is free to consider remedial issues sua sponte.
E.g., Indian Hills Care Center, 321 NLRB 144 fn. 3
(1996) (modifying Board’s standard remedies). We
should do so here.3

draws from a position, there is at least a suggestion that he no longer
adheres to it.
1 In all other respects, I agree with the majority’s holding in this
case.
2 The General Counsel’s motion only cites the passage of time and
“changed circumstances” as the reasons for withdrawing the request for
a tax compensation remedy. The first reason mitigates in favor of
granting the tax remedy, as the backpay award will be larger due to the
passage of time. The second reason, “changed circumstances,” is en-
tirely unexplained.
3 THE MAJORITY STATES THAT IT IS “IMPORTANT TO
HEAR AND CONSIDER THE PROS AND CONS CONCERNING
THE CHANGE [IN REMEDIAL POLICY]. IN THE INSTANT
CASE, WE ARE NOT NOW PRESENTED WITH THOSE VIEWS.”
THAT ASSERTION PUZZLES ME. IN BRIEFS FILED IN THIS
CASE, THE GENERAL COUNSEL PREVIOUSLY FORCEFULLY
ARGUED IN FAVOR OF THE REMEDY, HE HAS SAID NOTHING
TO INDICATE THAT HIS POSITION ON THE MERITS HAS
CHANGED, AND THE RESPONDENT ARGUED AGAINST IT. IN
OTHER WORDS, THE ISSUE HAS BEEN SQUARELY LITI-
GATED AND PLACED BEFORE THE BOARD. THE BRIEFS ARE
STILL IN OUR FILES.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD568
The Internal Revenue Service (IRS) considers a back-
pay award to be taxable income earned in the year the
award is paid, regardless of when the income should
have been earned and received.4 Because of the progres-
sive nature of the Federal and some State income tax
structures, discriminatees receiving lump sum backpay
awards covering a multiyear backpay period may be
pushed into higher tax brackets and owe higher income
taxes than if they had received their wages in due course.
A discriminatee who incurs this heightened tax burden
currently receives no tax compensation as part of the
remedy, and therefore does not receive a full make-whole
remedy under current Board law. Until 1986, the Inter-
nal Revenue Code and many State tax codes provided for
income averaging to mitigate the tax effects of large
year-to-year differences in earned income, including
lump sum backpay awards. Accordingly, the Board de-
clined to award tax compensation, reasoning that back-
pay recipients could avoid adverse tax consequences by
income averaging.5 In 1986, however, Congress re-
pealed income averaging. Thus, the Board’s previous
rationale for denying tax compensation no longer exists.
A make-whole remedy for victims of unlawful dis-
crimination should place the employee in the same posi-
tion she would have been in had the unlawful discrimina-
tion not occurred. “The underlying policy of Section
10(c) of the [National Labor Relations] Act . . . is ‘a res-
toration of the situation, as nearly as possible, to that
which would have obtained but for the illegal discrimina-
tion.’” Trustees of Boston Uniiversity, 224 NLRB 1385
(1976), enfd. 548 F.2d 391 (1st Cir. 1977), quoting
Phelps Dodge Corp. v. NLRB., 313 U.S. 177, 194 (1941).
Tax compensation is therefore both an appropriate and
necessary method for making whole victims of unlawful
discrimination.
Had the Respondent not unlawfully fired employee
Emma Johnson for exercising her Section 7 rights, she
would have obtained her wages over the normal course
of her employment and would not be potentially subject
to additional tax liability triggered by the backpay award.
To make Johnson whole, the Respondent should be re-
quired to provide remuneration that would put her in the
same position she would have been in absent the unlaw-
ful discrimination, i.e., without an additional tax burden.
Several courts have upheld tax compensation to offset
increased tax liabilities for lump sum payments to vic-

4 See I.R.S. Revenue Rulings 78-336, 1978-2 C.B. 255 (1978), and
89-35, 1989-1 C.B. 280 (1989); see also U.S. v. Cleveland Indians
Baseball Co., 532 U.S. 200 (2001).
5 Hendrickson Bros., Inc., 272 NLRB 438, 440 (1985), enfd. 762
F.2d 990 (2d Cir. 1985); Laborers Local 282 (Austin Co.), 271 NLRB
878, 878 (1984).
tims of discrimination under other employment statutes.6
As one court put it, the statutory goal is “to allow [the
employee] to keep the same amount of money as if he
had not been unlawfully terminated.” O’Neill v. Sears,
Roebuck & Co., 108 F.Supp. 2d 443, 447 (E.D. Pa.
2000). As the General Counsel had originally and per-
suasively argued, the same reasoning applies in this case.
The Board’s longstanding practice of including interest
in backpay awards, even though Section 10(c) of the Act
does not specifically provide for interest, supports the
view that tax compensation is an appropriate part of a
make-whole remedy. Just as a discriminatee’s loss of the
use of her money must be redressed to make her whole,
so must a discriminatee who faces a higher tax liability
because she received a lump sum payment be compen-
sated accordingly.7 “The Board has the right to draw on
‘enlightenment gained from experience’ in fashioning
remedies to undo the effects of violation of the Act.”8
The weakness of the Board’s remedies for unlawful
discrimination, especially when compared to the reme-
dies granted under other Federal employment laws, is
notorious. See, e.g., Estlund, The Ossification of Ameri-
can Labor Law, 102 Colum. L. Rev. 1527, 1552 (2002)
(due to limited remedies, employers view unfair labor
practice remedies as a “minor cost of doing business”).
We have the authority to provide tax compensation as
part of a make-whole remedy. By failing to do so, we
diminish the Act’s already limited effectiveness in pro-
tecting employees who exercise their rights. Accord-
ingly, I dissent.

6 See Sears v. Atchison, Topeka & Santa Fe Railway Co., 749 F.2d
1451 (10th Cir. 1984) (racial discrimination under Title VII of the Civil
Rights Act of 1964); Gelof v. Papineau, 829 F.2d 452 (3d Cir. 1987)
(Age Discrimination in Employment Act); O’Neill v. Sears, Roebuck &
Co., 108 F.Supp. 2d 443 (E.D. Pa. 2000) (ADEA).
Some courts have recently refused to extend the reasoning of the
court in O’Neill, above. See Meacham v. Knolls Atomic Power Labo-
ratory, 185 F.Supp.2d 193, 238 (N.D.N.Y. 2002); Anderson v. Consoli-
dated Rail Corp., 2000 WL 1622863 (E.D. Pa. 2000). They have done
so either because of the employee’s failure to provide evidence of the
tax consequences of a lump sum backpay award, or because the em-
ployee requested tax compensation for nonbackpay damages. Those
concerns do not exist in Board proceedings. Thus, the compliance
process will determine whether a discriminatee is entitled to tax com-
pensation. In addition, the Board awards no monetary compensation
other than backpay. Accordingly, the O’Neill court’s reasoning is
perfectly applicable in Board proceedings.
7 Other possible tax consequences of receiving lump sum backpay
awards, such as exceeding the social security wage base or being sub-
ject to changing tax rates, can readily be explored in compliance pro-
ceedings.
8 Isis Plumbing & Heating Corp., 138 NLRB 716 (1962), enf. denied
on other grounds 322 F.2d 913 (9th Cir. 1963).
UNITE HERE LOCAL 26 569
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 vio-
lated 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or threaten to discharge any
employees because they engage in protected concerted
activity.
WE WILL NOT impliedly threaten employees with re-
taliation if they engage in protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Emma Johnson full reinstatement to her former job,
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make Emma Johnson whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Emma Johnson and, within 3 days thereafter,
notify her in writing that this has been done and that the
discharge will not be used against her in any way.
LOCAL 26, HOTEL EMPLOYEES AND
RESTAURANT EMPLOYEES INTERNATIONAL
UNION, AFL–CIO
A. Susan Lawson, Esq. and Rachael E. Rollins, Esq., for the
General Counsel.
Ellen C. Kearns, Esq., Domenic M. Bozzotto, Esq., and Ellen
Guvisser, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. The charge
and amended charge in this case was filed on February 9 and
June 5, 2000. The complaint was issued by the Regional Direc-
tor on June 21, 2000, and alleged, in substance, that the Re-
spondent, on or about August 18, 1999, discharged Emma
Johnson because of her activity in trying to organize a staff
union and/or because of her concerted activities regarding em-
ployees’ hours of work.
In an amendment to the complaint made at the hearing, the
General Counsel seeks as a remedy, an order requiring the Re-
spondent to reimburse any discriminatee entitled to a monetary
award, for any extra Federal and/or State income taxes that
would or may result from the lump sum payment of the award.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleged, the Respondent, which is a labor or-
ganization, admits and I find that it is also an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent, Local 26, is a labor organization which is
affiliated with the Hotel Employees and Restaurant Employee
International Union, AFL–CIO. It also is an employer, em-
ploying clericals, business agents, organizers, researchers, and
benefits employees. The president of the Local is Janice Loux
and the secretary treasurer is Henry Green. (These are the two
elected positions.) Also in a supervisory position was Brian
Lang, who at the time of the events herein, was the director of
organizing. During the period from the spring of 1999 to Au-
gust 18, 1999, the Union employed about 12 nonsupervisory
employees.
In the summer of 1998, Emma Johnson was interviewed by
Brian Lang and Dena Lebowitz. During the course of the in-
terview, Lang said that he had heard of some remarks Johnson
had made at a lecture given by Michael Moore in March 1998.1
It seems that Johnson, at that event, complained about her pre-
vious employer (Service Employees International Union), and
suggested that employees of unions also needed representation.
According to Johnson, at some point during her interview, Lang
said that there was no union at Local 26 and added, “there
never will be a union at Local 26.” Lang testified that he had
no memory of discussing the Michael Moore event and denied
saying that there would never be a union at Local 26. Lebowitz
recalled that Lang did bring up the subject and said some words
to the effect that there would not be a union at Local 26. She
could not recall if he used the word “never.”
Notwithstanding the discussion about in-house unions, and
Lang’s apparent knowledge that Johnson had made public
statements supporting such organizations, Lang recommended
that she be hired. She was hired on September 14, 1998, as a
researcher.
About 2 months after Johnson started working, her domestic
partner, Stephanie Romanos, also interviewed with Brian Lang
for a job as an organizer. According to Romanos, during her
initial interview, Lang brought up the Michael Moore event and

1 Michael Moore was the director of a somewhat popular movie
where he chased around and tried to get an interview with the CEO of
General Motors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD570
Romanos told him what had happened with Johnson and
Moore. On the following day, Ramanos had a meeting with
Loux and Lang during which Lang asked Romanos to tell Loux
the Michael Moore story. At the conclusion, according to Ro-
manos, Lang stated that there would never be a staff union at
Local 26 and Loux said that she didn’t understand this “stuff”
about a staff union. According to Romanos, Lang then spoke
of his experience with a staff union when he was employed by
Local 285, SEIU; stating in substance, that having a staff union
was detrimental to the operations of a union. Loux didn’t say
anything at this point. According to Romanos, Loux kind of
smiled and nodded as Lang talked. Lang could not recall what
was said at the interview or meeting with Loux and Loux de-
nied that they talked at all about staff unions.
Romanos was offered a job as an organizer and she was
scheduled to start on January 4, 1999.
Sometime in December 1998, Lang again expressed his
negative opinion about staff unions. In fact, he concedes that
during a conversation he had with Romanos, she brought up the
idea of staff unions and he responded; “Don’t get me started on
staff unions.” Lang testified that he said that he had a “horren-
dous” experience when he was a member of a staff union at
Local 285, SEIU and that he didn’t think that staff unions made
any sense; that they undercut the mandate that a union had to
represent workers. About a week later, Romanos called him to
tell him that she was not accepting the job.
Lang certainly was not reluctant to express his opinion about
staff unions, for he made similar statements to the recently
hired MacKenzie Smith. (She was hired on March 5, 1999.) In
this regard, Lang testified that she asked him what he thought
about staff unions and he replied that he didn’t think that they
made sense; that staff unions interfered with the ability of a
union to represent employees. Lang placed this conversation in
or about March 1999, and MacKenzie Smith thought that it
took place in May or June 1998.
In February and March 1999, Local 26 hired a number of
employees including Mark Parker, Yovani Hernandez,
Mackenzie Smith, Calvin Wu, and Laura Regis. According to
Johnson, she approached each of these individuals and asked
them whether they would be interested in organizing a staff
union. This met with a rather lukewarm response although Wu
clearly was interested as he thought that this might be a way of
getting a company car. Parker, on the other hand merely indi-
cated that he would sign an authorization card but would not
otherwise get involved.
Although Johnson testified that she broached the subject of
organizing a staff association, she and others testified that this
was spoken about in secrecy as she didn’t want management to
know what was going on. Moreover, the talk never really got
beyond the expression of an idea and no steps were ever taken
to actually form such an organization. At best, the idea of or-
ganizing a staff union remained inchoate.2 And the statement
that Lang made about staff unions, probably occurred before

2 Johnson did testify that she obtained some collective-bargaining
agreements and some authorization cards to use as models. But this
activity was undertaken on her own and was not part of a concerted
effort by her and other employees to form a labor organization.
Johnson even began talking about this idea with other employ-
ees.
In my opinion, there was insufficient evidence to establish,
with any degree of probability, that Lang or Loux or any other
supervisory or managerial person associated with Local 26, was
aware that Johnson or anyone else was talking about the forma-
tion of an inside union.3
In May 1999, Johnson and Parker were given written evalua-
tions by Marty Leary who was the research supervisor for the
International Union. Although he worked mostly in Washing-
ton D.C., he did come to Boston from time-to-time to work
with Local 26 and the researchers.4 Leary also reviewed their
work which was sent to him. This evaluation took place at a
time when the management of the Union was not aware of
Johnson’s union activities and before any of the alleged con-
certed activities. In my opinion, the evaluations of both indi-
viduals were mediocre and although both received a similar
overall grade, Leary attributed different strengths and weakness
to each person. In Johnson’s case, he stressed that she needed
to follow through on her research and show more initiative in
developing sources of information. This is not to say that the
evaluation was poor or that he (or Loux), indicated in any way
that Johnson’s work was cause for alarm or if, unimproved,
could lead to her termination.
In June 1999, a labor dispute arose between Local 26 and the
Logan Airport Ramada Inn which was owned by Hilton Hotels.
As this involved a plan to close the hotel and reopen it in Au-
gust, with no right of employment for the old employees, the
Union viewed this with the utmost urgency.
Having participated in negotiations with the Hotel without
much success, Loux announced to the Union’s staff on July 12,
that commencing immediately, they should put their vacations
on hold because the Union was going to embark on a corporate
campaign against the Hotel which would include handbilling at
the Hilton Hotel in the Backbay area of Boston on a 7-day per
week basis.
Loux made up a schedule pursuant to which all union em-
ployees were required to handbill in pairs, for 2 hours each day,
7 days a week. The hours were rotated so that over a period of
time, each pair would leaflet at different hours during the day.
Also, Loux made it plain that this schedule was fixed and that
employees could not switch their assignments between them-
selves. Also, the employees were told that they should be at

3 The General Counsel seeks to ascribe knowledge of Johnson’s un-
ion activity to the Respondent largely by way of what is called the
“small plant” doctrine. In my opinion, the evidence here cannot sup-
port this conclusion. In Coral Gables Convalescent Home, 234 NLRB
1193, 1199 (1978), the Board stated that knowledge can be inferred if
union activities at a small plant “were carried out in such a manner or
at times that in the normal cause of events, Respondent must have
noticed them.” If, however, the alleged discriminatee made efforts to
hide his or her activity, then the General Counsel can’t use the small
plant doctrine to infer knowledge. Bryant & Cooper, Milcraft Furni-
ture, 282 NLRB 593, 607 (1987); K & B Mounting, 248 NLRB 570,
571 (1980); Friendly Markets, 224 NLRB 967, 969 (1976).
4 Mainly, they did corporate research, principally directed to hotels
that either were already established in Boston or were in the develop-
mental process.
UNITE HERE LOCAL 26 571
their posts a half hour early and that they should remain until
relieved by the next shift. Parker and Johnson were assigned as
a team.
During the leafleting, employees were reminded by Loux
that they were not to place leaflets or their own possessions,
(such as backpacks, coffee cups, etc.), on hotel property. (This
included the flower pots outside the entrance.) This was in
order to prevent any legal challenge by the Hotel to the Union’s
activity.
During the leafleting period, employees were expected to
carry out their normal work as well, albeit Leary acknowledged
that he understood that the researchers’ normal work would be
impeded by this activity.
During the second week of the leafleting campaign, Johnson
asked Loux if staff members could swap shifts and she was told
that they could not. Thereafter, Johnson started to talk to other
employees about the leafleting schedule, suggesting that they
should be allowed to swap shifts.5 Johnson also devised an
alternate schedule which she talked about with some of the
other employees. This involved having a single 4-hour shift on
the weekends so that each person could have one day off each
weekend. Some employees indicated to her that they were
interested in this idea and some indicated that they were not.
Unlike the situation with the staff union idea, Johnson’s
complaints about the leafleting schedule did come to the atten-
tion of Loux. In this regard, Calvin Wu testified that in July,
Loux told him that Johnson had complained about the schedule
and that she (Loux), asked him and McKenzie Smith if they
preferred a two or a 4-hour shift. (He testified that they both
said that they preferred one, 4-hour weekend shift.) Smith
testified that at a staff meeting in late July, Loux said that she
heard grumbling on the picket line and that she knows that
people were getting frustrated but that we were going to get
through this kind of thing. Johnson testified that at a different
staff meeting in late July 1999, she asked Loux if the employ-
ees could switch with each other. Johnson also testified that
she said that the weekends were becoming a big issue and sug-
gested the idea of having one, 4-hour shift per weekend. Ac-
cording to Johnson, Loux’s response was negative to both
ideas.
According to Johnson, after the meeting noted above, she
prepared a document containing an alternative leafleting sched-
ule and left it with Loux, who said that she would look at it
later. The cover memo read:
Janice, could we do weekend shifts of 4 hours each, thus let-
ting everyone have one weekend day off? One person would
do 4 hours one weekend day and none the other day? Or, if
not, could those who want to, switch with each other so that
they do a 4 hour shift one weekend day and take the other
weekend day off? Then get it approved by you. Emma.
On Friday evening, July 30, 1999, Loux turned down John-
son’s request to take off on Saturday morning, even if Johnson

5 In actuality, Loux did permit employees, on an as needed basis, to
switch shifts if she approved the change. However, she clearly was not
going to approve a system whereby employees could switch shifts by
themselves.
could find someone to take her shift. In response, Johnson
states that she told Loux that she thought it was unfair that
Loux had taken a vacation 2 weeks before the leafleting began
and then telling employees that they couldn’t have a single day
off during the summer. Johnson testified that on the following
day, Loux spoke to her on the picket line and said that if she
needed a day off, this could be accommodated. According to
Johnson, Loux said; “You know, Emma, we need to pull to-
gether. This picket line is really important. We really have to
stay together and be strong.”
On Saturday, July 31, 1999, Loux fired Jovanni Hernandez
because he refused to work an extra leafleting shift on that day.
(Clearly Loux considered the picket line to be of paramount
importance.)
According to Johnson, she again raised the scheduling issue
at a staff meeting on August 5, 1999. She asserts that Loux got
really angry and said that they cannot talk about scheduling and
that there would be no changes. According to Johnson, Loux
said, while slamming her hand on the table: “No, I am the boss.
I make the rules.”
On August 6, 1999, Loux negotiated a settlement with the
Hilton Hotel and the leafleting activity was called off.
Everyone went back to work and Loux left for business in
Las Vegas. Loux returned to Boston on August 16, 1999, and
fired Johnson on August 18, 1999.
Marty Leary testified that in July 1999, he received several
calls from Loux who complained about Johnson’s work. One
of her complaints, according to Leary, was that Johnson was
not producing one page descriptions of hotel projects while
Parker was able to do this even during the leafleting activity.
He testified that Loux complained that she had noticed a
change in Johnson’s enthusiasm for the job and that she was not
putting in the hours that she had done before.
According to Leary, he received another call from Loux at
the end of July 1999, where Loux said that she was at the end
of her rope with Johnson and that she was seriously thinking of
terminating her. Leary asked why and Loux said that Johnson
had a temper, and that she wasn’t putting in the time. Leary
testified that Loux complained about the way Johnson was
reacting to the crisis with the Hilton Hotel. He testified that
Loux said that Emma was unhappy about the 2-hour per day
picket line schedule that Loux had developed, and had been
complaining about it and wouldn’t stop. (Emphasis added.)
On August 16, Johnson was sent to a research conference in
Washington D.C. This also was the day that Loux returned to
work.
On August 18, Johnson called Loux to ask for a vacation but
when she went to Loux’s office she was told that she was being
let go. According to Johnson, Loux said that although she con-
sidered Johnson to be a good researcher, she didn’t like John-
son’s attitude on the picket line. Johnson was told that her
termination would be treated as a layoff, that she would get 2
week’s pay and that she would get a good recommendation.6
Loux told Johnson that this was her last day and that she should
go upstairs, get her stuff and leave.

6 The Union did not challenge Johnson’s unemployment insurance
claim.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD572
Calvin Wu testified that some time shortly after Johnson was
fired, Lang told him and McKenzie Smith that Johnson had
been fired because of her complaint about the Hilton campaign.
Neither Lang nor Smith could recall this remark.
Janice Loux testified that she decided to discharge Johnson
because her work declined both in quality and quantity, that her
overall attitude was poor and that Johnson was not carrying her
weight in the Hilton campaign. More specifically, she noted, as
did Leary, that Johnson, during the summer, no longer was
producing what they called one page hotel reports whereas
Parker, her coresearcher, was able to continue doing that work.
Loux testified that on some occasions, Johnson did not arrive
on time for the picket line and sometimes took long breaks to
go the bathroom at the Sheraton Hotel next door.7
Johnson denies that she did not do her work properly and to
the extent that she would concede that her productivity went
down, she attributes that to the handbilling activity which im-
peded her normal assignments. And in this regard, Leary
agreed that the handbilling campaign would have impeded
Johnson’s normal research assignments.
III. ANALYSIS
Based on the evidence as a whole, I do not think that the
General Counsel has made out a prima facie case showing that
Emma Johnson was discharged because of her union activities.
For one thing, her activities were minimal and consisted only of
talking to other employees about whether or not it would be a
good idea to form an independent staff association. No steps
were taken to form such an organization and there was no evi-
dence that the Respondent’s management were aware of this
talk. I will not rely on the “small plant doctrine” to attribute
knowledge of essentially inchoate union activity to the em-
ployer. The talk, to the extent it was undertaken, was kept pri-
vate and Johnson made an effort to keep such discussion under
management’s radar screen.
The allegation that Johnson was discharged for protected
concerted activity is an altogether different matter.
Johnson talked to other employees about her proposals to
change the picketing schedule. Her idea was that employees
should be allowed to switch assignments and that on weekends,
employees should be given one 4-hour shift rather than two, 2-
hour shifts. Some of the other employees agreed with her and
others didn’t. The evidence shows that Johnson raised this
subject as a matter of concern for herself and other employees
and that she went so far as to draw up an alternative schedule
which she submitted. Loux was aware of this activity and she
specifically addressed the question of schedules during a staff
meeting.
A proposal or complaint made by an employee in relation to
her own and other employees’ concerns about work schedules,
which involves hours of work, is protected concerted activity
within the meaning of Section 7 of the Act. Aroostook County

7 Mark Parker testified that when Loux told him that she had fired
Johnson, he responded that it was about time. His testimony was of-
fered to corroborate the testimony of Respondent’s other witnesses that
Johnson was not productive. It should be noted, however, that Loux
did not know of or rely on Parker’s opinion of Johnson’s work in mak-
ing a decision to discharge her.
Regional Ophthalmology Center, 317 218, 220 (1995). (Em-
ployee discussions about schedule changes constitute concerted
action); NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265–
266, (9th Cir. 1995). (Employees who complained about
schedule changes and refused to work extra hours were en-
gaged in concerted, protected activity.) See also Compuware
Corp. v. NLRB, 134 F.3d 1285, (6th Cir. 1998).
Moreover, the General Counsel need not show that all of the
affected employees encompassed by the complaints were in
agreement with the position taken by the employee who raised
the matter with the employer. Belle of Sioux City, 333 NLRB
98, 104–105 (2001); Circle K Corp., 305 NLRB 932, 933
(1991); Whittaker Corp., 289 NLRB 933, 934 (1988). Nor
must it be shown that other employees specifically authorized
or appointed the employee to raise the matter with the em-
ployer. See NLRB v. Talsol Corp., 155 F.3d 785, 797, (6th Cir.
1998), enfg. Talsol Corp., 317 NLRB 290, 315–317 (1995),
and citing Compuware Corp. v. NLRB, 134 F.3d at 1288–1289;
(6th Cir. 1998); West Texas Hotels, Inc., 324 NLRB 1141
(1997); Salisbury Hotel, 283 NLRB 685, 686–687 (1987);
Every Woman’s Place, 282 NLRB 413 (1986), enfd. 833 F.2d
1012 (6th Cir. 1987).
I am convinced that Janice Loux is a strongly committed la-
bor leader who, during the Hilton campaign, was engaged in a
fight which potentially could have had, if she was not success-
ful, a very serious impact on the Union’s ability to organize and
represent employees in Boston’s hotel industry. She was
wholly involved in this campaign and it is not surprising that
she expected her own employees to be equally committed to
this crucial fight.
The problem, I think, is that Loux construed Johnson’s com-
plaints about the handbilling schedule as an indication of John-
son’s lack of commitment to the campaign. While this might
be somewhat understandable, it doesn’t mitigate against a con-
clusion that if this was the reason for Johnson’s discharge, the
Union, as Johnson’s employer, would have violated Section
8(a)(1) of the Act.
To my mind, the testimony of Leary, shows that Johnson’s
complaints about the handbilling schedule were the primary
reason that Loux decided that Johnson had to go. Leary testi-
fied that Loux telephoned him in July 1999, and said that she
was thinking of discharging Johnson. Leary stated that Loux
complained about the way Johnson was reacting to the crisis
with the Hilton Hotel and he further testified that Loux said that
Emma was unhappy about the picket line schedule, that she had
been complaining about it and wouldn’t stop.
The Respondent contends that even if Johnson’s activity
could be considered to be protected and concerted activity, it
nevertheless would have discharged Johnson for legitimate
business reasons. It essentially contends that Johnson was not
productive and was not doing her job properly.
Under Wright Line, 251 NLRB l083, (l980) enfd. 622 F.2d
899 (1st Cir. l98l), cert. denied 495 U.S. 989 (1982), once the
General Counsel has established a prima facie showing of
unlawful motivation, the burden is shifted to the Respondent to
establish that it would have laid off or discharged the employee
for good cause despite his or her union or protected activities.
UNITE HERE LOCAL 26 573
During Johnson’s entire tenure at the Respondent, she was
given one written evaluation (May 1999), which was generally
satisfactory. She never received any written or oral warnings
about her work and there is no evidence that Respondent’s
management ever made any written notation of her alleged
shortcomings. Neither Loux, Lang, nor Leary ever sat down
with her to tell her that she was neglecting her work or that the
job she was doing was deficient.
Based on the above, I cannot conclude that the Respondent
has met its burden under Wright Line and I therefore conclude
that Respondent violated Section 8(a)(1) of the Act by dis-
charging Emma Johnson.
Based on the credited testimony of Calvin Wu, I also con-
clude that Brian Lang, Respondent’s agent, told him that John-
son had been discharged because of her complaints about the
Hilton campaign. Since I have concluded that Johnson’s com-
plaints involved the scheduling of employee’s hours of work
and therefore constituted protected concerted activity, Lang’s
statement therefore could reasonably be construed by Wu as an
implied threat of retaliation for engaging in such activities.
Whayne Supply Co., 314 NLRB 393, 402 (1994); and Wells
Dairy, Inc., 287 NLRB 827, 834 (1987).
CONCLUSIONS OF LAW
1. The Respondent, Local 26, Hotel Employees and Restau-
rant Employees International Union, violated Section 8(a)(1) of
the Act by discharging its employee Emma because of her pro-
tected concerted activity.
2. The Respondent, violated Section 8(a)(1) of the Act by
telling an employee that another employee had been discharged
because of her complaints which were protected concerted
activity.
3. The unfair labor practice found herein affects commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged Emma
Johnson, it must offer her reinstatement and make her whole for
any loss of earnings and other benefits, computed on a quarterly
basis from the date of her discharge to the date of her rein-
statement or a valid reinstatement offer, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). See also Florida Steel Corp.,
231 NLRB 651 (1977).
In an amendment to the complaint, the General Counsel re-
quested that I modify the traditional remedy to take into ac-
count the potential adverse impact that Federal and State in-
come tax laws might have on the discriminatee’s backpay. It is
argued that if the backpay amount is paid all in one year it
could thereby increase the discriminatee’s income tax liability
by raising his or her tax bracket. (It seems that the IRS does
not pro rate income received from a backpay award even
though the amount may represent payments for lost earnings
over a multiyear period.)
Whatever the merits of this argument, there is no precedent
in its favor and I feel that it would be best left to the Board to
deal with this kind of question.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Local 26, Hotel Employees and Restaurant
Employees International Union its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Discharging or threatening to discharge employees who
engage in protected concerted activity.
(b) Impliedly threatening employees with retaliation if they
engage in protected concerted activity.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Emma
Johnson full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed and make her whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of this
decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Emma John-
son and within 3 days thereafter, notify her in writing, that this
has been done and that the discharge will not be used against
her in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amounts due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Boston Massachusetts, copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms provided
by the Regional Director for Region 1 after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD574
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 18, 1999.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or threaten to discharge any employ-
ees because they engage in protected concerted activity.
WE WILL NOT impliedly threaten employees with retaliation
if they engage in protected concerted activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Emma Johnson, full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed and make her whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against her.
WE WILL within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Emma
Johnson and within 3 days thereafter, notify her in writing, that
this has been done and that the discharge will not be used
against her in any way.
HOTEL EMPLOYEES AND RESTAURANT EMPLOYEE
INTERNATIONAL UNION, LOCAL 26, AFL–CIO
A Susan Lawson Esq. and Rachael E. Rollins Esq., for the Gen-
eral Counsel.
Ellen C. Kearns Esq., Domenic M. Bozzotto Esq., and Ellen
Guvisser Esq., for the Respondent.
SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge. By Order
dated October 1, 2001, the Board remanded this case to me for
further findings and conclusions. Thereafter, by letter dated
October 4, 2002, I notified the General Counsel and the Re-
spondent that if they chose to do so, they could file supplemen-
tal briefs by October16, 2001. I also notified them that given
the uncertainty as to the outcome, it might be more practical to
explore the possibility of settlement. Subsequently, I left a
voice mail message with the General Counsel to advise me as
to whether there was any possibility that this matter might be
settled. By voice mail of October 19, 2001, she advised me that
no settlement was forthcoming. Accordingly, I issue the follow-
ing supplemental findings and conclusions.
I conclude that Emma Johnson’s testimony was detailed and
credible. To the extent that her testimony conflicted with that of
Janice Loux, I shall credit Johnson. I therefore credit Johnson’s
assertion that at her termination interview, Loux did not men-
tion anything about any deficiencies in Johnson’s work per-
formance or raise any issue regarding the way that Johnson
engaged in leafleting activity. I also credit Johnson’s testimony
that to the extent that her creation of “one page” reports were
reduced or eliminated during the Hilton campaign, this was
caused by her other assignments during this period, including
special assignments. Thus, it is my opinion, based on Johnson’s
credited testimony, that with the exception of these one-page
reports, Johnson did the work assigned to her. I also credit
Johnson’s testimony that she followed Loux’s directions re-
garding the conduct of the handbilling activity and that she
showed up on time and continued to engage in that activity
during her assigned shifts.
The evidence, through the testimony of the Respondent’s
own witness, Marty Leary, shows that the primary reason that
Loux decided to discharge Johnson was because Johnson had
made an effort to convince other employees to concertedly
complain about the picket line schedules insofar as they af-
fected their hours of work. Although Leary testified that in
July, Loux complained about Johnson’s attitude and work, he
also testified that later in the same month, when Loux, for the
first time, told him that she was thinking of firing Johnson, she
said that Emma was unhappy about the 2-hour per day picket
line schedule that Loux had developed, and had been complain-
ing about it and wouldn’t stop. (Emphasis added).
Additionally, given the credited testimony of Union Organ-
izer Calvin Wu, who testified that Brian Lang, Respondent’s
organizing director, told him that Johnson had been discharged
because of her complaints about the Hilton campaign, this goes
a long way toward establishing a forceful prima facie case. And
even though Lang testified that he played no role in the deci-
sion to fire Johnson, I find it difficult to believe that Loux
would not have told him why she had discharged Johnson after
the fact. This is, after all, a small organization and Lang was
part of the Union’s management staff. Lang’s statement to Wu
after the discharge, was certainly consistent with Leary’s testi-
mony regarding what Loux told him before Johnson was fired.
Given a strong prima facie case, the Respondent now has the
burden to show that it would have discharged Johnson irrespec-
tive of her protected concerted activity. Under Wright Line, 251
UNITE HERE LOCAL 26 575
NLRB l083, (1980) enfd. 622 F. 2d. 899 (1st Cir. l981), cert.
denied 495 U.S. 989 (1982), once the General Counsel makes
out a prima facie case, she does not carry the burden of show-
ing that the Respondent’s asserted other reasons for discharge
are pretextual. Even assuming that the Respondent’s motivation
in discharging the individual is, in some part, motivated by
legitimate reasons, the Respondent nevertheless carries the
burden of proving that the discharge would have occurred any-
way for legitimate reasons, despite that part of the its motiva-
tion which would be considered to be illegal. In my opinion, the
Respondent has not carried this burden.
I have already credited Johnson’s testimony regarding her
adherence to the instructions respecting the leafleting activity.
And while Loux seems to place a good deal of emphasis on
Johnson’s asserted lack of enthusiasm for the Hilton campaign,
her testimony in this regard is somewhat intangible. For exam-
ple, she testified that in meetings, Emma would sometimes huff
about a particular assignment or “she didn’t agree with what I
was saying.” Loux went on to testify that she could tell by
Johnson’s facial expressions that she didn’t seem to agree with
the strategy or the assignment.
Loux also placed great emphasis on the failure of Johnson to
do the one-page reports which Johnson’s coworker Parker con-
tinued to do during the Hilton campaign. Nevertheless, it seems
to me that the one-pagers did not have a high priority during
this period of time and that Johnson was assigned to other more
important things to do in relation to the campaign. With respect
to the one-page reports, Johnson credibly testified that during
the period of the Hilton campaign, she was not asked about
these reports by either Leary or Loux and did not receive any
criticism about this issue.
Loux complained about Johnson’s attitude, bad temper, and
lack of enthusiasm for the job. But my opinion is that this criti-
cism is inextricably related to the fact that Johnson made her-
self a pest in Loux’s eyes by continually complaining about the
scheduling of the leafleting schedule. Johnson may have been
an irritant to Loux because she was challenging the schedule;
but that irritating activity by Johnson is protected by Section 7
of the Act.
Johnson credibly testified that at no time during the period of
her employment did she receive any warnings or criticisms
regarding any aspect of her work performance. Indeed the only
written evaluation of her was positive. Nor could the Respon-
dent produce any written memoranda, warnings or other docu-
mentation to corroborate Loux’s assertion that Johnson was not
properly doing her job.
Whether or not Loux had, in the past, discharged other em-
ployees without prior warnings does not in my opinion, do
much to bolster the Respondent’s defense. The point is that
once the General Counsel has made out, as she has in this case,
a prima facie showing that the motivation, in whole or in part,
for Johnson’s discharge was because of her protected concerted
activity, the Respondent has the burden of proving that its as-
serted reasons for the discharge were legitimate and that it
would have discharged Johnson anyway, notwithstanding her
protected activity.
I simply do not think that the Respondent has sustained its
burden and in the end, I do not believe Loux’s testimony as to
the reasons that she gave for Johnson’s discharge.
Accordingly, I reaffirm my original Decision and recom-
mended Order as modified below.1
In light of Ferguson Electric Co., 335 NLRB 142 (2001),
paragraph 2(c) of the recommended Order should be modified
to read as follows:
Preserve and, within 14 days of a request, or such ad-
ditional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.