Wyndham Palmas del Resort & Villas

National Labor Relations Board - Board Decisions

Jul 13, 2001

334 N.L.R.B. 514 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514
Wyndham Palmas del Mar Resort and Villas and Un-
ion de Trabajadores de la Industria Gastro-
nomica de Puerto Rico, Local 610, HEREIU,
AFL–CIO. Case 24–CA–7798
July 13, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBER
LIEBMAN
AND WALSH
The issue presented in this case is whether the Re-
spondent should be allowed to withdraw recognition
from the Union on the basis of an antiunion petition
signed by employees during the 60-day notice-posting
period prescribed by a settlement agreement resolving
charges alleging serious unfair labor practices.1 For the
reasons set forth below, we conclude that, under estab-
lished Board precedent, the Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from the Union.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
HEPC Palmas, Inc., a Texas corporation authorized to
do business in the Commonwealth of Puerto Rico and
operating under the trade name of Wyndham Palmas del
Mar Resort and Villas, provides resort hotel, restaurant,
and related services at a facility at Humacao, Puerto
Rico. During the 12-month period preceding issuance of
the complaint, the Respondent, in the normal course and
conduct of its business operations, derived gross reve-
nues in excess of $500,000 and purchased and received
goods and materials valued in excess of $50,000 directly
from outside the Commonwealth of Puerto Rico.

1 On a charge filed September 19, 1997, by Union de Trabajadores
de la Industria Gastronomica de Puerto Rico, Local 610, HEREIU,
AFL–CIO (the Union), the General Counsel of the National Labor
Relations Board issued a complaint October 31, 1997, against Wynd-
ham Palmas del Mar Resort and Villas (the Respondent), alleging that it
violated Sec. 8(a)(5) and (1) of the Act by refusing to bargain collec-
tively in good faith with the Union as the exclusive collective-
bargaining representative of the employees in the bargaining unit. The
Respondent filed a timely answer admitting in part and denying in part
the allegations of the complaint.
On February 18, 1998, the General Counsel, the Respondent, and the
Union filed with the Board a stipulation of facts and a motion to trans-
fer this case to the Board. The parties agreed that the charge, the com-
plaint, the answer to the complaint, and the stipulation, including at-
tached exhibits, shall constitute the entire record in this proceeding and
that no oral testimony is necessary or desired. The parties further
waived a hearing before an administrative law judge and the issuance
of an administrative law judge’s decision.
On May 11, 1998, the Board issued an order conditionally approving
the stipulation and transferring the proceeding to the Board for issuance
of a Decision and Order, subject to the parties’ stipulating to a precise
description of the appropriate bargaining unit. Thereafter, on June 29,
1998, pursuant to the Board’s Order, the General Counsel, the Respon-
dent, and the Union filed a stipulation concerning the unit description.
The General Counsel and the Respondent each filed briefs.

The General Counsel alleges in the complaint, the Re-
spondent’s answer admits, and we find that the Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
The Union was certified in 1995 as the bargaining rep-
resentative of a unit of employees employed by a prede-
cessor employer. On February 11, 1997,2 the Respon-
dent recognized the Union and began negotiations for a
collective-bargaining agreement.3 Between February 11
and August 26, the parties held 12 bargaining sessions.
2 All dates hereafter are in 1997, unless otherwise specified.
3 The stipulated unit appropriate for bargaining is:
INCLUDED: All regular fulltime and regular part-time em-
ployees in the following classifications: regular bartenders,
buspersons, food and beverage servers, stewards, cooks, sec-
ond cooks, cafeteria attendants, cook helpers, food and bever-
age utility persons, warehouse persons, first cooks, garden
manager, lead stewards, cashiers, host, and hostesses, room
attendants, housepersons, laundry workers, floor care atten-
dants, pool lifeguards, telephone operators, airport attendants,
guest service attendants, bell captains, drivers, bellpersons,
reservation clerks, recreational coordinators, telephone ser-
vice lead persons, landscapers, lifeguards, equipment opera-
tors, maintenance workers, maintenance technicians, pool
maintenance employees, beach attendants, painters, air-
conditioning repair technicians and helpers, general mainte-
nance technicians, preventative maintenance technicians, in-
ventory clerks, housekeepers, Club Cala housekeepers, guest
services attendants, Club Cala house persons, Club Cala
laundry workers, messengers, maintenance utility workers
and data entry clerks, engineering department employees em-
ployed by Wyndham Palmas del Mar Resort & Villas at the
following facilities located at 170 Candelero Drive, Huma-
cao, Puerto Rico, 00791 Palmas Inn, Hotel Candelero, Topo
Coco Restaurant, Palm Terrace Restaurant Lounge, Villa
Suites and Club Cala.
EXCLUDED: The following personnel: food and beverage
director, catering director, executive sous chef, food and bev-
erage manager, banquet manager, storeroom manager, restau-
rant supervisor, steward supervisors, assistant banquet man-
agers, chef de cuisine, banquet chef, sous chef, executive
housekeeper, housekeeping managers, guest service manager,
reservations manager, night manager, director villa manager,
telephone service manager, activities manager, guest service
supervisors, pool lifeguards supervisors, director property
management, property manager, director of security, land-
334 NLRB N0. 70
WYNDHAM PALMAS DEL MAR RESORT & VILLAS 515
On March 26, a petition was filed in Case 24–RD–418,
seeking to decertify the Union as the exclusive collec-
tive-bargaining representative of the bargaining unit em-
ployees. On March 31, the Union filed an unfair labor
practice charge in Case 24–CA–7642, alleging that the
Respondent violated Section 8(a)(1) and (5) by request-
ing employees to sign a decertification petition and by
engaging in dilatory, bad-faith bargaining.
On May 30, the Regional Director for Region 24 ap-
proved the withdrawal of those portions of the charge in
Case 24–CA–7642 that alleged an unlawful refusal to
bargain in violation of Section 8(a)(5). On June 5, the
Regional Director approved the withdrawal of the decer-
tification petition in Case 24–RD–418. Also on June 5,
the Respondent entered into an informal Board settle-
ment of the 8(a)(1) charge allegations in Case 24–CA–
7642.4 On July 2, pursuant to the settlement agreement,
the Respondent posted a Board notice to employees stat-
ing that it would not “assist or solicit employees in the
promotion, presentation, and circulation of a petition to
decertify [the Union]”; that it would not “promise . . .
employees increased wages and/or fringe benefits in ex-
change for their support of the decertification petition”;
and that it would not “inform employees that [the Re-
spondent] cannot be found liable for sponsoring a decer-

scaping manager, maintenance manager, regional accounting
manager, maintenance supervisor, assistant director of secu-
rity, security supervisors, supervisor of beach lifeguards, en-
gineering director, general supervisors, warehouse supervi-
sors, paint supervisors, air-conditioning repair supervisors,
golf operations director, golf course superintendent, golf pro,
assistant golf pro, general manager Club Cala, housekeeping
managers, sales manager, real estate customer service vice
president of Palmas del Mar Utilities, field operations man-
ager, accounting manager, purchasing manager, warehouse
supervisors, vice president real estate sales and marketing,
real estate sales manager, casino employees, accounting de-
partment employees, secretaries to the director of villa man-
ager, administrative assistant to the director of property man-
ager, secretary to assistant to the director of security, adminis-
trative assistant to the director of engineering, time share
sales person Club Cala, secretary to the general manager
Club Cala, secretary to vice president Palmas del Mar Utili-
ties, materials buyers, purchasing coordinator, secretary to the
food and beverage director, secretary to the director of house-
keeping, secretary to the director of golf operations, human
resources director, employment clerk, human resources in-
formation service coordinator, benefits administrator, nurse,
compensation and benefits manager, employment manager,
employment coordinator, president, secretary to the president,
vice president development, secretary to the vice president
development, vice president administration, secretary to the
vice president administration, vice president resort operations,
secretary to the vice president resort operations, comptroller,
secretary to the comptroller, professional employees, office
clericals, guards, temporary personnel, and supervisors as de-
fined in the National Labor Relations Act.
4 The settlement agreement included a nonadmission clause.
tification petition.” The 60-day notice-posting require-
ment continued until August 31.
On September 5, an attorney filed a decertification pe-
tition in Case 24–RD–424. The petition contained the
signatures of 183 of the 255 bargaining unit employees.
All signatures were dated between July 10 and August
23, i.e., during the 60-day notice-posting period.
On September 10, the attorney, accompanied by a
group of employees, submitted a copy of the petition to
the Respondent. On September 15, the Respondent’s
attorney notified the Union that the Respondent was
withdrawing recognition and canceling all future bar-
gaining sessions.
B. The Parties’ Contentions
The General Counsel contends that the employee peti-
tion given to the Respondent on September 10 was
tainted by unremedied unfair labor practices because the
signatures on the petition were collected during the 60-
day notice-posting period of the settlement agreement in
Case 24–CA–7642. The General Counsel further con-
tends that the Respondent could not lawfully rely on that
tainted petition as objective evidence of its good-faith
doubt concerning the Union’s continuing majority status.
Thus, the General Counsel argues, the Respondent vio-
lated Section 8(a)(5) and (1) by withdrawing recognition
from the Union based on that petition. Moreover, the
General Counsel argues that the Respondent had not bar-
gained for a reasonable period of time before withdraw-
ing recognition, given that the Respondent recognized
the Union in February 1997, and withdrew recognition
only 7 months later.
The Respondent contends that it was privileged to
withdraw recognition based on the petition signed by 183
bargaining unit employees, including 4 employee mem-
bers of the bargaining committee. The Respondent as-
serts that the petition was not tainted, because there is no
evidence of management coercion or involvement in the
collection of the signatures. The Respondent asserts fur-
ther that the settlement agreement specifically disavowed
any wrongdoing on its part and therefore cannot have
tainted the employee petition.
C. Discussion
As the parties recognize in their briefs, the Board has
long held that an employer may not withdraw recognition
from a union while there are unremedied unfair labor
practices tending to cause employees to become disaf-
fected from the union. Olson Bodies, 206 NLRB 779,
780 (1973). As one court has stated, a “company may
not avoid the duty to bargain by a loss of majority status
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
caused by its own unfair labor practices.” NLRB v. Wil-
liams Enterprises, 50 F.3d 1280, 1288 (4th Cir. 1995).5
The issue then is one of causation. In cases involving
a general refusal to recognize or bargain with an incum-
bent union, “the causal relationship between the unlawful
act and subsequent loss of majority support may be pre-
sumed.” Lee Lumber, 322 NLRB 175, 178 (1996), enfd.
in relevant part 117 F.3d 1454 (D.C. Cir. 1997). In other
cases, the Board has identified several factors as relevant
to determining whether a causal relationship exists.
These causation factors include the following: (1) the
length of time between the unfair labor practices and the
withdrawal of recognition; (2) the nature of the violation,
including the possibility of a detrimental or lasting effect
on employees; (3) the tendency of the violation to cause
employee disaffection; and (4) the effect of the unlawful
conduct on employees’ morale, organizational activities,
and membership in the union. Master Slack Corp., 271
NLRB 78, 84 (1984).
Of course, in this case, unlike Master Slack, the Un-
ion’s unfair labor practice charge was resolved by an
informal Board settlement agreement; there has been no
finding by the Board (or admission by the Respondent)
that an unfair labor practice was committed. Neverthe-
less, under the terms of the settlement agreement, the
Respondent agreed to take precisely the sort of remedial
action that the Board might have ordered to redress a
violation of the Act: to post a notice for 60 days stating
that it would not engage in unfair labor practices that
were the subject of the Union’s charge. The notice-
posting provision is not a meaningless, pro forma re-
quirement; to the contrary, it reflects an administrative
determination by the Board that remedial action must be
taken in order to safeguard the public interest and the
rights of employees that the Act was designed to protect.6
In this respect, this case is analogous to Douglas-
Randall, 320 NLRB 431 (1995), in which the Board ad-
dressed the issue of whether an employer’s agreement to
settle outstanding unfair labor practice charges warranted
dismissal of a decertification petition. Overruling prior
precedent, the Board held that “an employer’s agreement
to settle outstanding unfair labor practice charges and

5 On March 29, 2001, the Board issued Levitz, 333 NLRB 717, in
which it “reconsider[ed] whether, and under what circumstances, an
employer may lawfully withdraw recognition unilaterally from an
incumbent union.” Levitz, however, has no bearing on our decision
today because Levitz expressly limited its analysis “to cases where there
have been no unfair labor practices committed that tend to undermine
employees’ support for unions.” Id. at fn. 1. In addition, the Board
held in Levitz that its analysis and conclusions in that case would only
be applied prospectively. Id. at 723.
6 See Poole Foundry & Machine Co. v. NLRB, 192 F.2d 740, 743
(4th Cir. 1951), cert. denied 342 U.S. 954 (1952).
complaints by recognizing and bargaining with the union
will require final dismissal, without provision for rein-
statement, of a decertification petition or other petition
challenging the union’s majority status filed subsequent
to the onset of the alleged unlawful conduct.” Id. at 435.
The Douglas-Randall Board recognized that “a settle-
ment agreement is not an admission or finding of unlaw-
ful conduct,” but concluded that, “in order to give proper
effect to such an agreement, the petition should be dis-
missed.” Id. at fn. 9. In so concluding, the Board relied
heavily on the Fourth Circuit’s decision in Poole Foun-
dry & Machine Co. v. NLRB, 192 F.2d 740 (1951), cert.
denied 342 U.S. 954 (1952), which the Board analyzed
as follows:

In enforcing the Board’s Order in Poole, the
Fourth Circuit explained that while different from a
finding by the Board that an unfair labor practice has
been committed, “a settlement agreement must . . .
have definite legal effect and is quite different from
a dismissal of the charges.” 192 F.2d at 742. The
court further stated that a “settlement agreement
clearly manifests an administrative determination by
the Board that some remedial action is necessary to
safeguard the public interests intended to be pro-
tected by the National Labor Relations Act . . . .” Id.
at 743. The court reasoned that a settlement agree-
ment represents an agreement by the employer to
undertake promptly the remedial action set out in the
agreement rather than to be put to the trouble and
expense of litigation before a trial examiner (now
administrative law judge), the Board, and possibly
the courts. The court observed that settlement
agreements are important in the effective administra-
tion of the Act, and are used as a satisfactory means
of closing cases involving unfair labor practice
charges. The court remarked that there would be few
of these agreements if the employer, after a solemn
promise to bargain with the union, could immedi-
ately escape this obligation by questioning whether
the union actually represents a majority of the bar-
gaining unit; in that event, an employer could com-
mit an unfair labor practice by refusing to bargain
collectively, sign a settlement undertaking to bar-
gain, and then attempt to have a new union certified
when dissatisfaction with the old union arose among
the employees because of the unfair labor practice.
The court asserted that this should neither be permit-
ted nor encouraged. If a settlement agreement is to
have real force, the court stated, a reasonable time
must be afforded in which a status fixed by the
agreement is to operate. Otherwise, the settlement
agreement might have little practical effect as an
WYNDHAM PALMAS DEL MAR RESORT & VILLAS 517
amicable and judicious means to expeditious dis-
posal of disputes arising under the terms of the Act.
[320 NLRB at 432.]

In this case, unlike Douglas-Randall, the alleged unfair
labor practices that were the subject of the settlement
agreement did not include a failure to recognize and bar-
gain with the Union, and the settlement agreement there-
fore did not require the Respondent to do so. Instead, it
required the Respondent to post a notice for 60 days stat-
ing that it would not assist or solicit employees in sup-
port of a decertification petition, inform employees that it
could not be held liable for sponsoring such a petition, or
promise employees increased wages and benefits in re-
turn for their support of such a petition. But, regardless
of whether it admitted or denied engaging in unlawful
conduct, the Respondent agreed to a remedy. To treat
the alleged conduct as if it had never occurred would, in
these circumstances, be the same as permitting an em-
ployer to withdraw recognition from a union while unfair
labor practices tending to cause employee disaffection
remained unremedied. Our decisions rightly preclude
that result, which is inconsistent with protecting genu-
inely free employee choice.
As we have observed, the notice-posting requirement
is not a mere formality. Rather, the purpose of the post-
ing requirement is “to provide sufficient time to dispel
the harmful effects of the [allegedly unlawful] conduct,”
Chet Monez Ford, 241 NLRB 349, 351 (1979), and to
ensure that employees are fully informed of their statu-
tory rights. This requirement “is not to be taken lightly
or whittled down.” Ibid.
When the conduct covered by the settlement agree-
ment is of such a nature that it would tend to erode em-
ployee support for the union, it is important that the re-
medial benefits of the posting not be “whittled down” by
allowing a challenge to the union based on employee
sentiment expressed during the remedial posting period.
Otherwise, the lingering effects of the settled unfair labor
practice conduct are likely to taint any employee disaf-
fection from the union that may arise in the interim.
Thus, the settlement agreement signed by the Respondent
“must have definite legal effect and is quite different
from a dismissal” of the Union’s unfair labor practice
charge. A settlement would have “little practical effect
as an amicable and judicious means to expeditious dis-
posal of disputes” if an employer could commit serious
unfair labor practices, sign a settlement agreement with a
nonadmission clause, and then avoid its duty to bargain
by relying on the union’s loss of majority support attrib-
utable to the employer’s own unremedied conduct.
For these reasons, we reject our dissenting colleague’s
view and conclude that (absent a specific agreement to
the contrary) settled unfair labor practice conduct, which
leads to remedial action, should be subject to the same
causation analysis as adjudicated conduct.7 Thus, where,
as here, an employer withdraws recognition from a union
on the basis of an antiunion petition signed during the
remedial notice-posting period prescribed by a settlement
agreement, the Master Slack analysis is appropriate.
Accordingly, we will apply the Master Slack factors to
determine whether a causal relationship exists between
the alleged unfair labor practices that led to the agreed-on
remedy and the subsequent expression of employee dis-
affection with the Union.
As set forth above, the settlement agreement covered
the following conduct by the Respondent:
Soliciting employees to promote and circulate a peti-
tion to decertify the incumbent Union;
Promising employees improved wages and benefits in
exchange for their support for the decertification effort;
Informing employees that the Respondent cannot be
found liable for sponsoring the decertification petition.
With respect to the first Master Slack factor (lapse of
time), the record indicates that the conduct that was the
subject of the settlement agreement occurred in March,
and the signatures on the antiunion petition were col-
lected between July 10 and August 23. However, in the
circumstances of this case, we find that the passage of a
mere 5 months would not reasonably dissipate the effects
of the Respondent’s conduct.
Significantly, when the signatures on the petition were
collected, the alleged unfair labor practices had not yet
been remedied. Although the settlement agreement re-
quired the Respondent to post the notice for 60 days,
only 1 week of the posting period had elapsed when the
initial signatures were secured.
Furthermore, the Respondent’s settled conduct oc-
curred in the context of an “unsettling transition” be-
tween employers. Fall River Dyeing Corp. v. NLRB, 482
U.S. 27, 39 (1987).8 Because “employees initially will
be concerned primarily with maintaining their new jobs,”
id. at 40, solicitations by their new employer to repudiate

7 We also reject our dissenting colleague’s contention that our deci-
sion will have the effect of discouraging settlement agreements. Parties
generally enter into such agreements in order to end labor disputes
without the delay and expense of litigation. See Independent Stave Co.,
287 NLRB 740, 741 (1987). It is speculative at best to suggest that an
employer would hesitate to settle pending unfair labor practice charges
out of fear that if a hypothetical antiunion petition were to circulate
during the 60-day posting period, the employer might not be able to
rely on it to withdraw recognition from the union.
8 As stated, the Union was certified in 1995 as the representative of a
unit of employees of a predecessor employer. In February 1997, the
Respondent recognized the Union and began negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518
their bargaining representative during this sensitive time
period can reasonably be expected to have a lasting ef-
fect.
With respect to the second Master Slack factor (the na-
ture of the conduct), so far as the record shows, it was the
Respondent’s own settled conduct which first sparked
employee dissatisfaction with the Union in March and
which resulted in the filing of the initial decertification
petition. After this petition was withdrawn in June, it is
hardly surprising that a second petition would surface in
July because, as discussed above, the very conduct that
had given rise to the first petition had not been remedied.
In sum, there is an exceedingly close nexus between the
nature of the Respondent’s settled conduct (soliciting
employees to sign decertification petition 1) and the ex-
pression of employee dissatisfaction on which the Re-
spondent based its withdrawal of recognition (decertifi-
cation petition 2).
We now turn to the final two Master Slack factors,
which focus on the effect of the conduct on protected
employee activities. By soliciting employees to promote
a decertification effort and promising them improved
wages and benefits in exchange for their doing so, the
Respondent sought to undermine the Union’s authority
generally and to influence the employees to reject the
Union as their bargaining representative. See Royal Mo-
tor Sales, 329 NLRB 760, 761 (1999) (suggesting to em-
ployee that he sign a petition to get rid of union and
promising him a bonus if he would circulate it among
other employees “clearly likely to undermine support for
a union”), 2 Fed.Appx 1, 2000 WL59043 (D.C. Cir.
2001). Further, the Respondent’s settled conduct is of a
character that reasonably tends to have a negative effect
on union membership. “Promises of enhanced benefits
in the absence of a union tend to discourage union activ-
ity because such promises send the unmistakable mes-
sage that union representation is not only unnecessary,
but that it is an obstacle, as opposed to a means, to
achieving higher wages and benefits.” Bridgestone/Fire-
stone, Inc., 332 NLRB 575 (2000).
For all of these reasons, we find that the Respondent’s
conduct covered by the settlement agreement would rea-
sonably have led to employee disaffection from the Un-
ion and would have undermined the Union’s support
among employees. Under these circumstances, as dis-
cussed above, the Respondent could not lawfully chal-
lenge the Union’s majority status on the basis of the anti-
union petition that was signed during the 60-day posting
period. Therefore, we conclude that by withdrawing
recognition from the Union on September 15, and by
refusing to bargain with it, the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.9
2. For the reasons fully set forth in Caterair Interna-
tional, 322 NLRB 64 (1996), we find that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Building Material v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In the Vincent case, the court
summarized the court’s law as requiring that an affirma-
tive bargaining order “must be justified by a reasoned
analysis that includes an explicit balancing of three con-
siderations: (1) the employees’Section 7 rights; (2)
whether other purposes of the Act override the rights of
employees to choose their bargaining representatives;
and (3) whether alternative remedies are adequate to
remedy the violations of the Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s withdrawal of recognition. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s continuing
majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violation.
Moreover, employees have not yet had an opportunity
to assess for themselves, without any undue influence

9 In light of this conclusion, it is unnecessary to address the General
Counsel’s alternative argument that even if the petition had not been
tainted by the alleged unfair labor practices, the Respondent had not
bargained for a reasonable period of time before withdrawing recogni-
tion from the Union. See St. Elizabeth’s Manor, 329 NLRB 341
(1999).
WYNDHAM PALMAS DEL MAR RESORT & VILLAS 519
from the Respondent, the Union’s effectiveness as
collective-bargaining representative. After only 1 month
of bargaining with the Union for an initial contract, the
Respondent began promoting a decertification effort,
which led to the filing of the petition in Case 24–RD–418
on March 26, 1997. That decertification petition and the
related unfair labor practice charge in Case 24–CA–7642
concerning the Respondent’s involvement with that peti-
tion remained pending until the execution of the settle-
ment agreement in June. The following month, another
decertification effort began, resulting in the filing of a
petition in Case 24–RD–424 on September 5. Ten days
later, the Respondent withdrew recognition from the Un-
ion. In light of these events, it is only by restoring the
status quo ante and requiring the Respondent to bargain
with the Union for a reasonable period of time that em-
ployees will be able to fairly decide for themselves
whether they wish to continue to be represented by the
Union or adopt some other arrangement.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos-
sibility of a decertification petition, to achieve immediate
results at the bargaining table following the Board’s reso-
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement.10 Such a result would
be particularly unfair in circumstances such as those
here, where litigation of the Union’s charges took several
years and the Respondent’s unfair labor practice was of a
continuing nature and was likely to have a continuing
effect, thereby tainting any employee disaffection from
the Union arising during that period or immediately

10 As the Board held in Lee Lumber, when an employer unlawfully
refuses to recognize an incumbent union, any employee disaffection
from the union arising during the course of that refusal will be pre-
sumed to result from the refusal. The employer normally can rebut that
presumption only by showing that it resumed recognizing the union and
bargained for a reasonable time, without committing further serious
unfair labor practices, before the disaffection arose. 322 NLRB 178.
Thus, the only reliable remedy for the Respondent’s withdrawal of
recognition is an order requiring the Respondent to recognize and bar-
gain with the Union for a reasonable time before the Union’s majority
status can be questioned.
thereafter. We find that these circumstances outweigh
the temporary impact the affirmative bargaining order
will have on the rights of employees who oppose contin-
ued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
ORDER
The National Labor Relations Board orders that the
Respondent, Wyndham Palmas del Mar Resort and Vil-
las, Humacao, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Unlawfully withdrawing recognition from Union
de Trabajadores de la Industria Gastronomica de Puerto
Rico, Local 610, HEREIU, AFL–CIO and refusing to
bargain with it as the exclusive collective-bargaining
representative of the employees employed in the unit
described below in paragraph 2(a).
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

INCLUDED: All regular fulltime and regular part-
time employees in the following classifications: regu-
lar bartenders, buspersons, food and beverage servers,
stewards, cooks, second cooks, cafeteria attendants,
cook helpers, food and beverage utility persons, ware-
house persons, first cooks, garden manager, lead stew-
ards, cashiers, host, and hostesses, room attendants,
housepersons, laundry workers, floor care attendants,
pool lifeguards, telephone operators, airport attendants,
guest service attendants, bell captains, drivers, bellper-
sons, reservation clerks, recreational coordinators, tele-
phone service lead persons, landscapers, lifeguards,
equipment operators, maintenance workers, mainte-
nance technicians, pool maintenance employees, beach
attendants, painters, air-conditioning repair technicians
and helpers, general maintenance technicians, preventa-
tive maintenance technicians, inventory clerks, house-
keepers, Club Cala housekeepers, guest services atten-
dants, Club Cala house persons, Club Cala laundry
workers, messengers, maintenance utility workers and
data entry clerks, engineering department employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520
employed by Wyndham Palmas del Mar Resort & Vil-
las at the following facilities located at 170 Candelero
Drive, Humacao, Puerto Rico, 00791 Palmas Inn, Hotel
Candelero, Topo Coco Restaurant, Palm Terrace Res-
taurant Lounge, Villa Suites and Club Cala.
EXCLUDED: The following personnel: food and
beverage director, catering director, executive sous
chef, food and beverage manager, banquet manager,
storeroom manager, restaurant supervisor, steward su-
pervisors, assistant banquet managers, chef de cuisine,
banquet chef, sous chef, executive housekeeper, house-
keeping managers, guest service manager, reservations
manager, night manager, director villa manager, tele-
phone service manager, activities manager, guest ser-
vice supervisors, pool lifeguards supervisors, director
property management, property manager, director of
security, landscaping manager, maintenance manager,
regional accounting manager, maintenance supervisor,
assistant director of security, security supervisors, su-
pervisor of beach lifeguards, engineering director, gen-
eral supervisors, warehouse supervisors, paint supervi-
sors, air-conditioning repair supervisors, golf opera-
tions director, golf course superintendent, golf pro, as-
sistant golf pro, general manager Club Cala, house-
keeping managers, sales manager, real estate customer
service vice president of Palmas del Mar Utilities, field
operations manager, accounting manager, purchasing
manager, warehouse supervisors, vice president real es-
tate sales and marketing, real estate sales manager, ca-
sino employees, accounting department employees,
secretaries to the director of villa manager, administra-
tive assistant to the director of property manager, secre-
tary to assistant to the director of security, administra-
tive assistant to the director of engineering, time share
sales person Club Cala, secretary to the general man-
ager Club Cala, secretary to vice president Palmas del
Mar Utilities, materials buyers, purchasing coordinator,
secretary to the food and beverage director, secretary to
the director of housekeeping, secretary to the director
of golf operations, human resources director, employ-
ment clerk, human resources information service coor-
dinator, benefits administrator, nurse, compensation
and benefits manager, employment manager, employ-
ment coordinator, president, secretary to the president,
vice president development, secretary to the vice presi-
dent development, vice president administration, secre-
tary to the vice president administration, vice president
resort operations, secretary to the vice president resort
operations, comptroller, secretary to the comptroller,
professional employees, office clericals, guards, tempo-
rary personnel, and supervisors as defined in the Na-
tional Labor Relations Act.
(b) Within 14 days after service by the Region, post at
its Humacao, Puerto Rico facilities copies of the attached
notice marked “Appendix.”11 Copies of the notice in
Spanish and in English, on forms provided by the Re-
gional Director for Region 24, 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. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facilities 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 September 15, 1997.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN HURTGEN, dissenting.
On September 5, 1997, Respondent was presented with
a petition in which 183 (of 255) unit employees clearly
stated that they did not wish to be represented by the
Union. Employees had signed the petition on dates be-
tween July 10 and August 3. Contrary to my colleagues,
I do not agree that the General Counsel has established
that the employee disaffection from the Union was
caused by any unfair labor practices. Accordingly, Re-
spondent was privileged to withdraw recognition from
the Union based on that disaffection.
My colleagues analyze the case under Master Slack,
271 NLRB 78 (1984), in order to determine whether the
Respondent’s conduct caused the disaffection. The case
is clearly inapposite. The Master Slack analysis is used
where proven unfair labor practices are followed by an
employee disaffection from the Union. The Master
Slack analysis determines whether the unfair labor prac-
tices caused the disaffection. In the instant case, there
are no proven unfair labor practices. There is only an
informal settlement agreement with a non-admission
clause. Thus, Master Slack has no relevance. Obvi-

11 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.”

WYNDHAM PALMAS DEL MAR RESORT & VILLAS 521
ously, one cannot show that unlawful conduct has caused
a disaffection if no unlawful conduct is shown.
My colleagues repeatedly refer to “the not yet fully
remedied unfair labor practices”. They ignore the fact
that no unfair labor practices have been established.
Similarly, my colleagues warn against “treat[ing] the
alleged conduct as if it had never occurred.” They then,
in the same sentence, treat the conduct as if it did occur,
i.e., they refer to “unfair labor practices.” The fact is that
there is a presumption of innocence, and there is no
showing that any unfair labor practice has occurred.
My colleagues unnecessarily complicate the case.
Here, the Respondent entered into a settlement agree-
ment regarding alleged 8(a)(1) violations. In the absence
of any evidence to the contrary, it must be presumed that
the Respondent complied with that agreement, including
the notice-posting provision. The employees collected
sufficient signatures during the 60-day period of the no-
tice posting to support the filing of a decertification peti-
tion. There is no showing that the Respondent had any
responsibility for this decertification effort. Yet, the ma-
jority extends the holding in Master Slack to cover a
situation where the Respondent has not been found to
violate the Act. By taking this approach, my colleagues
have acted detrimentally in two fundamental ways: (1)
they decrease the likelihood that employers will
voluntarily enter into settlement agreements that dispose
of unfair labor practice charges and (2) they interfere
with employees’ Section 7 right to decide whether they
desire union representation.

With respect to 1 above, I agree with my colleagues
that parties usually settle cases in order to get the dispute
behind them. However, in the instant case, my col-
leagues seek to revive the dispute by using the settled
conduct to taint an otherwise valid petition. Further, the
settlement agreement here provided that Respondent did
not admit that it committed any unfair labor practices.
My colleagues now seek to use the settled conduct as if it
were an unfair labor practice, i.e., to taint an otherwise
valid petition. The use of a settlement, contrary to its
terms, is strange jurisprudence and can only deter re-
spondents from entering into settlements.
Poole Foundry, 192 F.2d 740 (4th Cir. 1951), is also
off the mark. In that case, the employer agreed to recog-
nize the union, as part of a settlement agreement. The
Board reasoned that an employer who agrees to recog-
nize and bargain with the union (as part of a settlement)
cannot then turn around and promptly withdraw recogni-
tion. By contrast, in the instant case, the Respondent did
not agree to recognize and bargain with the Union. (The
8(a)(5) charge was previously withdrawn and was thus
not part of the settlement.) Respondent agreed to remedy
certain alleged 8(a)(1) conduct, and there is no claim that
Respondent breached that agreement.1
My colleagues speak of the importance of remedial no-
tices. However, there is no showing that any provision
of the notice or the settlement itself has been breached.
In short, there is no showing that the employee disaf-
fection was tainted in any way. Nor is there a showing
that Respondent breached an agreement to recognize and
bargain. Indeed, there is no showing that Respondent
breached the settlement at all. In these circumstances the
employees’ Section 7 rights clearly prevail. I would
honor them.
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 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 unlawfully withdraw recognition
from Union de Trabajadores de la Industria Gastro-
nomica de Puerto Rico, Local 610, HEREIU, AFL–CIO,
and unlawfully refuse to bargain with it as the exclusive
collective-bargaining representative of the employees
employed in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the bargaining unit:
INCLUDED: All regular fulltime and regular part-
time employees in the following classifications: regu-
lar bartenders, buspersons, food and beverage servers,
1 Douglas-Randall, 320 NLRB 431 (1995), is even further off the
mark. In that case, the sequence was the reverse of the instant case and
Poole. That is, the decertification petition preceded the settlement in
Douglas-Randall. I disagree with Douglas-Randall. See Supershuttle
of Orange County, 330 NLRB 1016 (2000). In any event, the prece-
dent is not relevant here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522
stewards, cooks, second cooks, cafeteria attendants,
cook helpers, food and beverage utility persons, ware-
house persons, first cooks, garden manager, lead stew-
ards, cashiers, host, and hostesses, room attendants,
housepersons, laundry workers, floor care attendants,
pool lifeguards, telephone operators, airport attendants,
guest service attendants, bell captains, drivers, bellper-
sons, reservation clerks, recreational coordinators, tele-
phone service lead persons, landscapers, lifeguards,
equipment operators, maintenance workers, mainte-
nance technicians, pool maintenance employees, beach
attendants, painters, air-conditioning repair technicians
and helpers, general maintenance technicians, preventa-
tive maintenance technicians, inventory clerks, house-
keepers, Club Cala housekeepers, guest services atten-
dants, Club Cala house persons, Club Cala laundry
workers, messengers, maintenance utility workers and
data entry clerks, engineering department employees
employed by Wyndham Palmas del Mar Resort & Vil-
las at the following facilities located at 170 Candelero
Drive, Humacao, Puerto Rico, 00791 Palmas Inn, Hotel
Candelero, Topo Coco Restaurant, Palm Terrace Res-
taurant Lounge, Villa Suites and Club Cala.
EXCLUDED: The following personnel: food and
beverage director, catering director, executive sous
chef, food and beverage manager, banquet manager,
storeroom manager, restaurant supervisor, steward su-
pervisors, assistant banquet managers, chef de cuisine,
banquet chef, sous chef, executive housekeeper, house-
keeping managers, guest service manager, reservations
manager, night manager, director villa manager, tele-
phone service manager, activities manager, guest ser-
vice supervisors, pool lifeguards supervisors, director
property management, property manager, director of
security, landscaping manager, maintenance manager,
regional accounting manager, maintenance supervisor,
assistant director of security, security supervisors, su-
pervisor of beach lifeguards, engineering director, gen-
eral supervisors, warehouse supervisors, paint supervi-
sors, air-conditioning repair supervisors, golf opera-
tions director, golf course superintendent, golf pro, as-
sistant golf pro, general manager Club Cala, house-
keeping managers, sales manager, real estate customer
service vice president of Palmas del Mar Utilities, field
operations manager, accounting manager, purchasing
manager, warehouse supervisors, vice president real es-
tate sales and marketing, real estate sales manager, ca-
sino employees, accounting department employees,
secretaries to the director of villa manager, administra-
tive assistant to the director of property manager, secre-
tary to assistant to the director of security, administra-
tive assistant to the director of engineering, time share
sales person Club Cala, secretary to the general man-
ager Club Cala, secretary to vice president Palmas del
Mar Utilities, materials buyers, purchasing coordinator,
secretary to the food and beverage director, secretary to
the director of housekeeping, secretary to the director
of golf operations, human resources director, employ-
ment clerk, human resources information service coor-
dinator, benefits administrator, nurse, compensation
and benefits manager, employment manager, employ-
ment coordinator, president, secretary to the president,
vice president development, secretary to the vice presi-
dent development, vice president administration, secre-
tary to the vice president administration, vice president
resort operations, secretary to the vice president resort
operations, comptroller, secretary to the comptroller,
professional employees, office clericals, guards, tempo-
rary personnel, and supervisors as defined in the Na-
tional Labor Relations Act.
WYNDHAM PALMAS DEL MAR RESORT
AND VILLAS