CL Frank Management, LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 6, 2011

20-CA-035123 (N.L.R.B. Jul. 6, 2011)

JD(SF)–18–11
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES – SAN FRANCISCO BRANCH OFFICE
CL FRANK MANAGEMENT, LLC, CL METROPOLIS
MANAGEMENT, LLC, AND CL VERTIGO MANAGEMENT,
LLC, A SINGLE EMPLOYER D/B/A HOTEL PROJECT
GROUP D/B/A HOTEL FRANK
Cases 20-CA-35123
and 20-CA-35238
20-CA-35253
UNITE HERE! LOCAL 2
CL FRANK MANAGEMENT, LLC, CL METROPOLIS
MANAGEMENT, LLC, AND CL VERTIGO MANAGEMENT,
LLC, A SINGLE EMPLOYER D/B/A HOTEL PROJECT
GROUP D/B/A HOTEL METROPOLIS
and Case 20-CA-35223
UNITE HERE! LOCAL 2
TABLE OF CONTENTS
Page
Decision 1
Statement of the Case 1
Findings of Fact 2
I. Jurisdiction 2
II. Alleged Unfair Labor Practices 2
A. Introduction 2
B. The Issues 5
C. Facts, Argument and Conclusions about the Common Issues 5
1. The Room Cleaners’ Protest 5
a. Relevant facts 5
b. Argument and conclusions 6
2. The probationary period extension 7
a. Relevant facts 7
b. Argument and conclusions 8
D. Facts, Argument and Conclusions about the Other Hotel Frank Issues 9
1. The Union insignia ban 9
a. Relevant facts 9
b. Argument and conclusions 10
2. The executive housekeeper’s statements 11
a. Relevant facts 12
b. Argument and conclusions 13
JD(SF)–18–11
3. Photographing concerted activities 15
a. Relevant facts as to July 22 15
b. Argument and conclusions 16
c. Relevant facts as to September 8 16
d. Argument and conclusions 17
4. Marc Norton’s discipline and termination 17
a. Relevant facts 18
b. Argument and conclusions 24
(1) The June 23 warning 24
(2) The August 31 discipline 26
(3) Norton’s September 30 termination 28
5. the luggage room door and chair 29
a. Relevant facts 29
b. Argument and conclusions 30
Conclusions of Law 30
Remedy 31
Order 31
Order 33
Appendix A
Appendix B
JD(SF)–18–11
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES – SAN FRANCISCO BRANCH OFFICE
CL FRANK MANAGEMENT, LLC, CL METROPOLIS
MANAGEMENT, LLC, AND CL VERTIGO MANAGEMENT,
LLC, A SINGLE EMPLOYER D/B/A HOTEL PROJECT
GROUP D/B/A HOTEL FRANK
Cases 20-CA-35123
and 20-CA-35238
20-CA-35253
UNITE HERE! LOCAL 2
CL FRANK MANAGEMENT, LLC, CL METROPOLIS
MANAGEMENT, LLC, AND CL VERTIGO MANAGEMENT,
LLC, A SINGLE EMPLOYER D/B/A HOTEL PROJECT
GROUP D/B/A HOTEL METROPOLIS
and Case 20-CA-35223
UNITE HERE! LOCAL 2
Kathleen C. Schneider and Sarah M. McBride, Attys.
for the Acting General Counsel.
John A. Ontiveros, Atty., with Keahn Morris, Atty., on the brief
(Jackson Lewis), and Thomas H. Petrides, Atty. (K & L Gates, LLP)
for Hotel Project Group.
Kim C. Wirshing, Atty., for UNITE HERE! Local 2.
DECISION
Statement of the Case
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard this case at San Francisco,
California, on February–18, 2011. The proceeding is based on four charges filed by UNITE
HERE! Local 2 (Union, Charging Party, or Local 2) 1 and two complaints initially issued on

1 The first charge (Case 20-CA-35123) was filed against Hotel Frank on June 24, 2010. It was
amended on July 13, and October 20. The second charge (Case 20-CA-35238) was filed against
the Frank on August 20. It was amended on September 8 and October 4 and 7. The third charge
(Case 20-CA-35253) was filed against the Frank on September 13. The fourth charge (Case 20-
CA-35223) was filed against the Metropolis on September 13. It was amended on October 22.
JD(SF)–18–11
3
October 29, 2010,2 by the Regional Director for Region 20 of the National Labor Relations Board 5
(NLRB or Board) on January 10, 2011, one, a consolidated complaint in Cases 20-CA-35123, 20-
CA-35238, and 20-CA-35253, against the Hotel Project Group d/b/a Hotel Frank (Hotel Frank or
Frank), and the other in Case 20-CA-35223 against the Hotel Project Group d/b/a Hotel
Metropolis (Hotel Metropolis or Metropolis). On November 1, the Regional Director issued an
order consolidating all four cases. However, on January 10, 2011, the Regional Director issued a 10
separate amended complaint in Case 20-CA-35223 (the Metropolis complaint) and a separate
amended consolidated complaint in the other three cases included in the November 1
consolidation order (the Frank complaint). The Metropolis complaint alleges that Respondent
violated Section (8)(a)(1) of the National Labor Relations Act (Act); the Frank complaint alleges
that Respondent violated Section (8)(a)(1) and (3) of the Act. Respondent filed a timely answer 15
to the complaints denying the substantive allegations.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel, Local 23 and Respondent, I make
the following20
Findings of Fact
I. Jurisdiction
25
At relevant times, Respondent CL Frank Management, LL, CL Metropolis Management,
LLC, and CL Vertigo Management, LLC, admittedly a single employer, has been doing business
as the Hotel Project Group. The Hotel Project Group (HPG), in turn, did business at relevant
times as the Hotel Frank, the Hotel Metropolis, and the Hotel Vertigo, all of which are located in
downtown San Francisco, California.4 Based on a projection of its operations from May 12, 2010, 30
to the time of filed its amended answer on February 14, 2011, the Hotel Project Group d/b/a Hotel
Frank admits that it will annually derive gross revenues in excess of $500,000 and that it will
purchase and receive goods and materials valued in excess of $5,000, which originate from
locations outside the State of California. The Hotel Project Group d/b/a Hotel Metropolis made
identical admissions as to its gross revenues and interstate purchases. Accordingly, I find each 35
entity, the Frank and the Metropolis, is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that it will effectuate the purposes of the Act for the Board
to exercise its jurisdiction to resolve the labor disputes encompassed by this consolidated
proceeding.
40
II. Alleged Unfair Labor Practices
A. Introduction
The Hotel Project Group (HPG) was formed in April 2010 to manage three San Francisco 45
boutique-style hotels, the Frank, the Metropolis, and the Vertigo. For several years prior to 2010,

2 All further dates not showing a calendar year refer to 2010.
3 Local 2’s arguments largely coincide with those of the Acting General Counsel. Accordingly,
the arguments attributed to the Acting General Counsel below generally track those made by
Local 2.
4 The Hotel Vertigo, historically an unorganized entity, is not involved in this proceeding.
JD(SF)–18–11
4
Local 2 represented employees at the Hotel Frank (the Frank) and the Hotel Metropolis (the 5
Metropolis) in separate units. The Hotel Vertigo, which is not involved in this proceeding, has
never been organized.
The collective-bargaining units at the Frank and the Metropolis consist essentially of the
bellmen, front desk clerks, room cleaners, utility workers, and laundry employees. The most recent 10
collective-bargaining agreement at the Frank was effective by its original terms from October 1,
1996, through September 30, 1999. At the Metropolis, the most recent agreement was effective
by its terms from November 1, 1998, through September 30, 1999. A series of extensions
resulted in the terms of that agreement with certain modifications remaining effective through
August 14, 2009.5 Both agreements were extensively modified and extended through September 15
1, 2004, and then extended with further modifications through August 14, 2009.
In more recent years, the three hotels were owned and operated by an entity called
Personality Hotels. In late 2009 or early 2010 Personality Hotels filed for bankruptcy. On May
12, an entity named CRESS Hotel Portfolio acquired all three hotels at a bankruptcy sale and 20
contracted with (HPG) to operate and manage those hotels. HPG’s contractual arrangement to
operate and manage the Frank continued through December 10; the contractual arrangement at
the Metropolis continued through December 15.
On May 12, following the sale, HPG managers met with the employees at the hotels to 25
inform them that they would all be offered employment. The employees at the Frank and
Metropolis were provided with letters offering them employment on the following terms:
Please note: If you accept employment with the Company by signing this offer letter, then
your terms and conditions of employment will change from what you previously had with 30
your prior employer at this location. Significantly, the Company does not accept or
assume and specifically rejects all of the terms and conditions that were set forth in the
Collective Bargaining Agreement between your prior employer and Unite Here! Local 2,
including all "Memorandum of Understandings" and "Side Letter" agreements. Instead,
your new terms and conditions of employment will be as set forth in this offer letter, 35
including the provisions of the Company's Employee Handbook, Job Descriptions, and
Job Performance Standards that are enclosed with this offer letter and incorporated by
reference. (The Company will, however, comply with its legal obligations as a successor
employer, if triggered, to recognize and bargain with Local 2 regarding your employment
to the extent required by law.)40
The Company is offering employment to you under the following terms and conditions:
You will be hired into the same position and at the same hourly wage rate that you were
earning immediately prior to Cress Frank 386 Geary Street LLC acquisition of the Hotel. 45
You will be classified as a non-exempt employee, which means you will be eligible for
overtime, meal periods and rest breaks as provided by law. The Company will determine
your assignments, work schedules and shifts, but it will make a reasonable effort based
on operational needs for you to keep the same schedules and shifts that you previously
held. 50

5 G C Exh. 34 contains the collective bargaining agreement and the two extensions applicable
to the Hotel Frank, f/k/a, the Hotel Maxwell. G C Exh. 46 includes the original agreement at the
Metropolis as well as the two extensions.
JD(SF)–18–11
5
5
Your employment with the Company will initially be pursuant to a 90-day probationary
period, during which time the Company will assess your skills, ability and performance in
your position. At or prior to the end of the 90-day probationary period, the Company will
make a determination as to whether to retain you as a regular full-time or part-time
employee of the ,Company under the terms set forth in this offer letter, or end the 10
employment relationship.
The offer letter also detailed the medical and dental benefits that Respondent offered to provide
through July 2010 and the vacation benefit applicable to full-time employees. The letter
concluded with a mandatory arbitration provision and a deadline for acceptance. (GC Exh. 2)15
Although a minor brouhaha erupted at the Frank during the May 12 meeting in response
to management’s demand that that the offer letters and acknowledgments for receipt of several
other documents be signed and returned immediately, the employees were eventually permitted
to return them signed before the start of their next work shift.6 All of the employees who had 20
previously worked at the Frank and the Metropolis signed on to continue working at their
respective hotels under HPG’s management.
The written job performance standards HPG established when it took over play a key role
in the case involving Marc Norton, a bellman at the Frank for 13 years and the alleged 25
discriminatee. HPG also retained outside firms to evaluate compliance by hotel personnel with
the service standards it established. These contractors sent unidentified personnel to stay at the
targeted hotel as a “mystery guest.” Following the stay, the mystery guest prepared a detailed
written report about their experience based on the service standards HPG provided up front.
Employee witnesses from the Frank referred to the mystery guests as “spotters” and their 30
evaluations (labeled “Mystery Guest Reports” by one of the companies) as “spotter reports.”
Throughout this decision, I have adopted this shorthand nomenclature. At relevant times, HPG
utilized two spotter firms, D.C. Blosser & Associates, and another identified only as “LRA.” The
owner and president of the Blosser firm, Dale Blosser, also conducted two employee training
sessions at the Frank during Norton’s tenure.35
Wali met informally with Local 2 President Mike Casey and Local 2 counsel Wirshing on
May 25. He informed the union officials that HPG had taken over the operation of the hotels on
behalf of the new owner. They then discussed the status of the union agreements at the hotels
and argued about the applicability of the successor clauses in the last union contracts. Wali told 40
Casey that HPG believed that the successorship clauses did not obligate it to apply the terms of
the prior union contracts at those two hotels because the owner, in effect, purchased only the
physical assets at a foreclosure sale rather than an ongoing business. For that reason, Wali
argued that HPG had a right set its own terms and conditions of employment when it hired all of
the former employees shortly after taking over the operations. 45
In a followup letter on June 8, Wali reiterated the same position with respect to the
contractual successorship clauses. He also explained that HPG had set new terms and
conditions of employment primarily because of objections it had to provisions in the prior
agreements, particularly at the Hotel Frank. Noting his meeting scheduled for June 10 with 50
Casey and a group of employees, Wali said he would review specific contract clauses he found

6 Several employees objected to the mass of materials they were asked to absorb and sign
for in such a limited period of time. For example, the Hotel Frank employee handbook is a 60-
page mostly single-spaced document. See R. Exh. 5.
JD(SF)–18–11
6
objectionable at that time. Twice in the letter Wali offered to recognize Local 2 as the employee 5
representative but only upon receipt of a formal demand for recognition. (R Exh. 12) Casey
responded by letter dated June 8 demanding recognition (R Exh. 13) and Wali replied on June 14
granting recognition and requesting available meeting dates from Casey. (R Exh. 14)
Casey and Wali met again on June 10 at the Hotel Frank. About a dozen employees and 10
two or three managers attended this exchange. Two additional bargaining sessions were held on
July 1. That session was consumed primarily with the Respondent’s review of the provisions in
the prior agreements that it found objectionable. The bargaining session on September 10 dealt
primarily with a review of Local 2’s health plan.
15
B. The Issues
There are two common issues as to both Respondents. The first common issue is
whether Respondents violated Section 8(a)(1) by issuing written warnings to six room cleaners
who concertedly refused to clean all of their assigned rooms on June 28. The second is whether 20
Respondents violated Section 8(a)(1) and (5) by unilaterally extending their initial probationary
period by 45 days.
The Respondent Hotel Frank pleadings present these added issues:
25
1. Whether it violated Section 8(a)(1) by prohibiting the wearing union buttons.
2. Whether it violated Section 8(a)(1) by the conduct of an agent and supervisor who
repeatedly told employees there “was no Union,” or they “were not protected by the Union.”
30
3. Whether it engaged in surveillance in violation of Section 8(a)(1) by taking photographs
or appearing to take photographs of employees engaged in union activities.
4. Whether it violated Section 8(a)(1) and (3) by: (a) issuing Marc Norton an oral warning,
(b) then a written warning, and finally (c) discharging him for his union activities.35
5. Whether it violated Section 8(a)(1) and (5) by unilaterally removing a chair from the
luggage room and requiring that the door between the front desk and the luggage room remain
closed at all times.
40
C. Facts, Argument and Conclusions about the Common Issues
1. The Room Cleaners’ Protest
Hotel Frank complaint paragraph 9 and Hotel Metropolis complaint paragraph 7 alleges 45
that Respondent violated Section 8(a)(1) by issuing written warnings to room cleaners Souping
Huynh, Amy Lum, Dinora Medrano, and Monica Solis, because they engaged in a concerted
protest of the increased room cleaning requirements HPG imposed when it took over the hotel’s
operation. Paragraph 7 of the Hotel Metropolis complaint makes the same allegation as to room
cleaners, Julia De Leon and Vilma Perez, at that hotel.50
a. Relevant facts
One of the initial terms established by HPG altered the contractually established practices
that governed the workload of the room cleaners employed at those two hotels. The base 55
JD(SF)–18–11
7
standard under the most recent union agreements had been 13 rooms per day. (GC Exh. 46, p. 5
50.) HPG increased that requirement to 15 rooms per day but it also lengthened the
workday from 8 to 8½ hours. Martinez, in particular, and Respondent in general claimed that the
base requirement for the Hotel Frank cleaners was 14 rooms per 8-hour day under the prior union
agreement. As employees are given half an hour for lunch and have two 15-minute breaks,
Respondent argues that by increasing the work day to 8½ hours it maintained the average half an 10
hour per room ratio that existed before it took over the operation of the hotels. (Tr. 22.) Both the
old and new standards contain detailed, though different, refinements that reduce a cleaner’s
daily room cleaning load if rooms are located on different floors, if a specified number of assigned
rooms involve guests checking out, or if other unusual situations exist.
15
When company and union officials met on June 10, Casey requested that HPG return to
previous room cleaning work levels. (Tr. 278.) Wali refused on the ground that he was unwilling
to make piecemeal agreements with the union. (R Exh. 14, p. 2.)
This change remained a bone of contention between the room cleaners and management. 20
Some room cleaners complained to the union agents that they had to forgo their break periods in
order to meet the new standard. In about mid-June, Rafael Leiva and Josephine Rivera, Local 2
field representatives for the Hotel Metropolis and Hotel Frank, respectively, met with a group of
dissatisfied room cleaners to discuss the issue. They reached an agreement to protest the
change through a “room drop,” a prearranged plan for the participating room cleaners to stop 25
work after cleaning 13 rooms unless management agreed to pay overtime to complete the other 2
rooms. Union Agents Leiva and Rivera scheduled the room drop for June 28, 2 days before the
bargaining session scheduled for July 1.
When Leiva arrived at the Hotel Metropolis shortly after 4 p.m. on June 28, room cleaners 30
DeLeon and Perez were engaged in a discussion about the room issue with the Hotel Metropolis
manager, Kristopher Mangonon. DeLeon and Perez had cleaned 13 rooms up to that point and
wanted Mangonon to take their remaining rooms “back” and credit them with a full day of work for
the rooms they had already cleaned. In the midst of the discussion, Mangonon left to make a
phone call. When he returned, he told the room cleaners: "Ladies, you're still on the clock. I 35
know that you have a very long day, but I could not get the rooms back. You can go." DeLeon
and Perez left without cleaning their remaining rooms. (Tr. 268-269.)
Rivera went to the Hotel Frank around the same time. She met with three of the four
cleaners participating in the room drop along with Ali Abid, the Hotel Frank union steward, in the 40
breakroom. They went to Executive Housekeeper Martinez’ office as a group where they were
joined after a short while by Monica Solis, the fourth cleaner involved. Rivera told Martinez that
the cleaners were returning the rooms not cleaned up to that point and requested that she allow
the cleaners to leave at that time or pay them overtime to stay and finish their rooms. Martinez
attempted to call general manager General Manager Stan Kott but he was not available. 45
Although the group waited a few minutes for Kott to return Martinez’ call, they finally went home
when that did not happen. (Tr. 406-408, 663-664.)
The following day management issued nearly identical written warnings to all six of the
room cleaners. After noting that the employee had not cleaned the required number of rooms the 50
previous day, the warning stated:
Please be reminded that if you do not clean the required number of rooms that are
assigned to you, then you will be subject to receiving written performance warnings that
could lead to the termination of your employment if the problem persists.55
JD(SF)–18–11
8
5
(GC Exh. 31, 32.)
b. Argument and conclusions
The Acting General Counsel argues that the conduct of the six room cleaners on June 28 10
was protected under Section 7 and therefore, the warnings they received on June 29 violated
Section 8(a)(1). Respondent asserts that these six room cleaners engaged in a “slowdown.” It
analogizes their conduct to that of the employees in First National Bank of Omaha, 171 NLRB
1145 (1968), enfd. 4l3 F.2d 921 (8th Cir. 1969) and Audubon Health Care Center, 268 NLRB 135
(1983). In sum, Respondent argues that the room cleaners’ conduct was unprotected. 15
The cases cited by Respondent pertain to partial or intermittent strikes. The Board and
the courts have long held that such strikes are not protected under Section 7. Vic Koenig
Chevrolet, 263 NLRB 646, 650 (1982) However, drawing the line between employee conduct
that amounts to protected strike activity and unprotected intermittent or partial strike activity can 20
often be difficult, albeit necessary, task First National Bank, supra at 1149.
The evidence of a slowdown as that term is traditionally used in labor relations law is
weak. The room cleaners’ shift starts at 8 a.m. (Tr. 90.) Their shift ends at 4:30 p.m., an 8½
hour period that includes a 30-minute lunch period and two 15 minute breaks. (Tr. 72, 429.) With 25
the exception of Solis, it appears that those participating in the job action simply ceased working
at approximately 4 p.m. after cleaning only 13 rooms. (Tr. 267, 351, 663.) Although this
evidence could suggest that they might have been slightly behind schedule, other evidence that
the room cleaners frequently had to forgo their break periods (Tr. 89-90, 281.) to complete their
work on time makes any conclusion that a slowdown occurred throughout that day unlikely. 30
Instead, the evidence shows that the room cleaners involved ceased working altogether
prior to the end of their shift. The Board presumes that “a single concerted refusal to work . . . is
a protected strike activity; and that such presumption should be deemed rebutted when and only
when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent 35
action which is inconsistent with a genuine strike or genuine performance by employees of the
work normally expected of them by the employer.” Polytech Inc., 195 NLRB 695, 696 (1972)
I find the presumptively lawful action by the six room cleaners on June 28 has not been
rebutted. The single work stoppage here was the direct result of the room cleaners’ frustration 40
over HPG’s increase in the room cleaning assignments. Before the stoppage occurred, this
group complained repeatedly to their immediate supervisor about this change. They also
pressured Local 2 to do something about it. In turn, Casey made an effort at the June 10 meeting
to have HPG reconsider the increase in room cleaning assignments. No evidence of a plan or
pattern is present here. No other stoppage of any kind by any of the unit employees occurred 45
before or after the room cleaners June 28 job action. And finally, neither Local 2 nor the room
cleaners have threatened further work stoppages of this nature.
Accordingly, I find that this brief work stoppage in protest of the increased room cleaning
workload constituted protected concerted activity within the meaning of Section 7, and for this 50
reason the June 29 warnings of potential discipline violated Section 8(a)(1), as alleged..
2. The probationary period extension
JD(SF)–18–11
9
Paragraph 12(b) of the Hotel Frank complaint and paragraph 8(a) of the Hotel Metropolis 5
complaint allege that about August 5, 2010, the hotels extended the initial 90-day probationary
period for the unit employees by an additional 45 days.
a. Relevant facts
10
The employment letter given to employees on May 12 provided that the employees,
though long-term employees at the respective hotels, must serve a probationary period. The
employment letter stated:
Your employment with the Company will initially be pursuant to a 90-day probationary 15
period, during which time the Company will assess your skills, ability and performance in
your position. At or prior to the end of the 90-day probationary period, the Company will
make a determination as to whether to retain you as a regular full-time or part-time
employee of the ,Company under the terms set forth in this offer letter, or end the
employment relationship.20
4
In addition, employees were provided employee manuals. One provision in the Hotel Frank and
the Hotel Metropolis manuals provided as follows:
INTRODUCTORY PERIOD25
All new and rehired employees shall serve an introductory period of 90 calendar days
commencing with their first day of employment. Any significant absence will automatically
extend the introductory period by the length of the absence. * * * The Hotel reserves the
right to extend the duration of the introductory period when such an extension is
determined appropriate in the Hotel's sole and absolute discretion. * * * After completion 30
of the introductory period eligible employees will receive the benefits described in this
Handbook under the section entitled Benefits. (Emphasis added)
(R. Exh. 5, p. 6(Hotel Frank); GC Exh. 33, p. 6 (Hotel Metropolis).)
35
On August 5, Kott issued a memorandum addressed to all front-of-the-house staff
members announcing the extension of the probationary period for 45 days from August 11, the
end of the original probationary period.7 (GC Exh. 14.) Kott’s memo cited the above handbook
provision essentially as authority for the action. The extension applied to all front desk, night
audit, and bell attendant staff members. Kott’s memo said that the reasons for this action were 40
the disappointing results from the most recent mystery guest reports and HPG’s desire to give
“everyone . . . the opportunity to succeed rather than making employment decisions regarding
regular employment status at this time.” An August 7 memo from Human Resources Manager
Bryant Smith and Kott scheduled additional front of the house training sessions for August 16 at
the Frank and August 17 at the Metropolis and the Vertigo. (Resp. Exh. 26; Tr. 529, 834.) 45
b. Argument and conclusions
Relying primarily on LB & B Associates, 340 NLRB 214 (2003), the Acting General
Counsel argues that Respondent violated its duty to bargain under Section 8(a)(5) by failing to 50

7 Based on the Kott’s calculation that the 90-day probationary period ended on August 11, it is
obvious that the company presumed that the period began on May 13 rather than May 12, the
date on which the hotel employees were actually hired by HPG. Therefore, if the initial 90-day
period concluded on August 11, the 45-day extension would run through September 25.
JD(SF)–18–11
10
notify Local 2 and provide it with an opportunity to bargain before implementing the extension of 5
the probationary period. Respondent, citing the principle controlling the outcome in Monterey
Newspapers, Inc, 334 NLRB 1019 (2001), argues that it did not violate its duty to bargain
because its discretion to extend the introductory period for new hires was tightly circumscribed,
i.e., the extension was limited to a 45-day period for the purpose of providing more training and
getting further mystery guest reports. Respondents also argue on the basis of the holding in 10
Fresno Bee, 339 NLRB 1214 (2003), (presumably the change dealing with the unilateral change
in the payroll period) that they were not required to bargain about the extension because it did not
materially affect employees' terms and conditions of employment.
I conclude that Respondent violated the Act as alleged. First, I reject Respondents claim 15
that the extension of the probationary period did not materially affect the employees’ terms and
conditions of employment. The very nature of a probationary period implies a conditional
employment status. Although Kott’s memo stated that the employees put on the prolonged
probationary period would receive those benefits the others would receive at the end of the 90-
day period, the 45-day extension prolonged their unsettled employment status. The Fresno Bee20
case cited by Respondents is factually distinguishable. There the change at issue amounted to
an adjustment of the employer’s payroll periods that the Board described as, at most, a ministerial
change with only a de minimis effect. And even in those few instances where some impact
occurred, the employer quickly corrected it.
25
NLRB v. Burns Security Services, 406 U.S. 272, 278-281 (1972) holds that a successor
employer, such as the Respondents here, may ordinarily free to set its initial terms and conditions
of employment without bargaining over those matters with the employees’ bargaining agent.
Respondents did two things of relevance that fit within the penumbra of initial employment terms;
they set a 90-day probationary period in the May 12 employment letters and they adopted a 60-30
plus page employee manual that contained numerous terms and conditions of employment that
went far beyond the terms set forth in the May 12 employment letters. In effect, the employee
manual gave notice to the employees that, as to the probationary period, their employer retained
complete discretion to expand the probationary period as they saw fit. Fairly read, the manual
provided Respondents with the ability to expand the probationary period by 6 days or 6 months 35
for any reason it “deemed appropriate.”
Respondents’ reliance on Monterey Newspapers, supra, to justify the extension of the
probationary period is misplaced. There the panel majority concluded that the employer’s
discretion in setting new employee pay rates need not be bargained over so long as they fit within 40
the narrow pay bands established as an initial terms when it took over from the prior owner.
Here, the type of discretion retained by Respondents in their employee manuals is so broad as to
give rise to the duty to bargain under NLRB v. Katz, 369 U.S. 736 (1962). Essentially, there are
no limits on the Respondents’ discretion with respect to the probationary period. For that reason,
I find Respondents violated Section 8(a)(5), as alleged, by failing to give Local 2 notice and an 45
opportunity to bargain about the extension.
D. Facts, Argument and Conclusions about the Other Hotel Frank Issues
1. The Union insignia ban50
Paragraph 6 of the operative complaint alleges that Respondent violated the Act when
Stan Kott informed the Hotel Frank employees around June 4 by way of a memo that they could
not wear union insignia. The Respondent’s amended answer denies the allegation but admits
that Kott issued a memo to employees at that time regarding the uniform dress code.55
JD(SF)–18–11
11
5
a. Relevant facts
For many years several Hotel Frank employees wore small union insignia on their work
uniforms to signify their allegiance and support for Local 2. Respondent’s employee handbook
contained a detailed dress policy with a provision that banned the wearing of any “pins or other 10
jewelry” except for the employee’s nametag. (R. Exh. 5, p. 27) After Respondent took over the
operation, many of the employees discontinued wearing their union buttons but a few did not.
Marc Norton, a bellman at the Frank, continued wearing his Local 2 button on his uniform.
A week or so after HPG began operating the Frank, Peter Kim, the front office manager at the 15
time, told Norton that, on instructions from Maribel Olmeda, HPG’s human resources director, he
had to remove his union button. On June 4 a notice was posted on the employee bulletin board
signed by Kott. The substance of the notice reminded employees that the employee handbook
provided that “nametags are the only approved pin or accessory that Is allowed to be worn on
your uniform.”20
Respondent Frank’s nametag-only policy is tantamount to barring employees from
wearing union insignia as they had done for years. Wali’s testimony reinforces that conclusion:
Q Okay. Your—your handbook talks about not wearing anything except a name tag on 25
your uniform?
A That is correct.
Q So are you going to change your handbook now to allow union buttons?30
A We—in union circumstances, we would. However, when we took over these hotels,
they were non-union, because you had not demanded the—the union had not demanded
recognition yet. It and that's where we erroneously assumed, because we were not
represented, that they should not wear the button. However, the minute the demand was 35
made, again, erroneously, we believed that that was the cutoff point, that we would allow
it. So to answer your question, in the event that we take a hotel over that is union, we will
modify the book to allow the use of the button.
(Tr. 559-560.)40
Subsequently, Norton brought the button ban to the attention of Local 2 President Mike
Casey at a union meeting held for the hotel employees. Casey labeled the directive with an
expletive and told the employees that he wanted them all to begin wearing their union buttons.
45
At the June 10 meeting between Wali and Casey with a group of the Hotel Frank
employees, Casey informed Wali of his instruction to the employees about wearing union buttons
and advised that the company should not make an issue of it.8 (Tr. 56.) In his June 14 letter
granting formal recognition to Local 2, Wali told Casey that employees would be permitted to
wear union buttons now that the Union had been formally recognized. (R Exh. 14, p. 2.) 50

8 I do not credit Wali’s testimony that the button issue was resolved in front of employees at
the June 10 meeting. (Tr. 480-481) The tone of his June 14 letter suggests otherwise and he
initially started to testify about seeking advice of counsel after the issue came up at the June 10
meeting. For these reasons, I find his later contrary testimony unreliable.
JD(SF)–18–11
12
5
b. Argument and conclusions
The Acting General Counsel argues that the evidence establishes that Respondent
prohibited its employees from wearing union insignia at work and, as Respondent failed justify the
ban by showing special circumstances, its conduct violated Section 8(a)(1). 10
Respondent argues that Kott’s June 4 memorandum did not violate Section 8(a)(1)
because Wali informed employees during the June 10 meeting that they would be permitted to
wear union buttons (a claim which I have found to be unsupported by credible evidence) and later
clarified the policy in the June 14 letter to Local 2. The Acting General Counsel argues that 15
Respondent’s effort to invoke the repudiation doctrine as to this issue fails under the standard
established in Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
In Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the Supreme Court approved
the Board’s conclusion that, absent unusual circumstances, employer rules prohibiting employees 20
from wearing union buttons at work unlawfully interferes with their Section 7 right to engage in
union activities. Here, Respondent made no attempt to justify its rule limiting adornments on
employee uniforms to company provided nameplates on the ground that some special
circumstances warranted it. Instead, its defense tacitly acknowledges that no basis for a
restriction exists by asserting that Wali effectively repudiated the interference with wearing union 25
buttons that resulted from, and was obviously intended by, Kott’s June 4 notice.
I reject the contention that Wali effectively repudiated the interference with employee
rights caused by Kott’s notice. Under the Passavant repudiation doctrine, the Board requires
that, to be effective, the repudiation of prior unlawful conduct must be: (1) timely, (2) 30
unambiguous, (3) specific in nature to the coercive conduct, (4) free from other unlawful conduct,
(5) adequately published to the employees involved with no unlawful conduct following the
publication, and (6) accompanied with assurances that no further interference with Section 7
rights will occur in the future.
35
Wali’s words and conduct following the ban fails the Passavant standards. His quoted
testimony above strongly suggests a lack of appreciation for the legal principles involved.
Ordinarily, the wearing of union insignia by employees at work is not a privilege an employer can
grant or withdraw based on its own house rules. The wearing of union buttons in the work place
is a statutory right of employees absent unusual circumstances not present here. The fact that 40
Kott’s notice remained posted for several weeks and Wali’s assertion that the rulebook provision
at issue would be retained for use at non-union locations precludes a finding that this unlawful
conduct has been effectively repudiated.
I also find Respondent’s reliance on Agri-lnternational Inc., 271 NLRB 925 (1984), 45
misplaced. That case is clearly factually distinguishable. There two members of a three member
Board panel agreed with the administrative law judge’s conclusion that the employer had
adequately repudiated a series of employee interrogation by a group of supervisors. The judge
analyzed the employer’s repudiation claim using the Passavant standards. He found the
following action taken by the employer’s principal executive sufficient: (1) each supervisor 50
personally informed that their conduct was illegal and that employees had the right to engage in
union activity; (2) posted a notice on the employee bulletin boards for 60 days pledging that the
conduct would not be repeated and informing employees of their statutory rights; (3) read the
notice to the employees at a series of meetings called for that purpose; (4) required the errant
JD(SF)–18–11
13
supervisors to agree in front of the employees at particular meetings that they would abide by the 5
notice read to the employees; and (5) mailed the notice to the home of each employee.
The credible evidence show only that Respondent notified the Union’s president
employees would be permitted to wear union buttons at the represented hotels. It gave no
straightforward notice to employees that they could wear union insignia if they chose to do so. 10
Respondent’s limited step is insufficient to satisfy Passavant. Hence, by prohibiting employees
from wearing union insignia, Respondent violated Section 8(a)(1), as alleged.
2. The executive housekeeper’s statements
15
Paragraph 7 of the Hotel Frank complaint alleges that Respondent violated Section
8(a)(1) when Melanie Martinez, the executive housekeeper, told several employees on different
occasions in June 2010 that there was “no union” and when she told employees in late July that
they had no union protection.
20
a. Relevant facts
Jose Lara, a laundry worker at the Hotel Frank and a longtime Local 2 steward, works
under Martinez’ supervision. He acknowledged that he had learned following HPG’s takeover
that Wali had met with Casey in an effort to “reach an agreement.” He also knew about the 25
ongoing contract negotiations between the Company and the Union.
Lara attends the morning meetings that Martinez conducts each day with the room
cleaners, laundry employees and the housemen. In fact, they take place in the laundry area
where Lara works. He recalled that the first day HPG began operating the hotel, the room 30
cleaners complained about the increase in the number of rooms they were assigned to clean.
Martinez responded to that complaint and similar ones over the next couple of months by telling
the cleaners they would have to comply with the new standard because there was no union
anymore. Lara added, “She would often say . . . that there was no union contract, and that we
were working without a contract.” There then followed this colloquy between counsel for General 35
Counsel and Lara:
Q. Can you repeat in English what you heard her say about the union during these
morning meetings?
A. Yes, of course.40
Q. Can you repeat that now in English.
A. Of course. (In English) She used to say, "Remember guys, we're not working for a
union. We're not union anymore."
(Tr. 324-325.) 45
Monica Solis also remembered Martinez making similar comments about the absence of a
union on six or seven occasions in June. In reference to the morning meetings, she said that
Martinez would remind the room cleaners of various details they should not overlook and warned
that they could be written up if they did. In this context, Solis said, Martinez would remind them 50
that they “weren’t protected by the union.” (Tr. 356.)
Sometime around mid-June, Martinez assigned Lara and a coworker named Willy to get a
rollaway bed at the Hotel Metropolis (about five blocks away) and put it in the penthouse suite at
the Hotel Frank. There is no elevator to that suite situated at the top of the hotel. According to 55
JD(SF)–18–11
14
Lara, it had been a practice under the prior union agreement that employees could not be 5
assigned to carry heavy items such as a rollaway up to the penthouse because there was no
elevator to that location. Lara said that he and his coworker hesitated momentarily when
Martinez first spoke about this assignment because of this practice. Before either of them could
say anything, Martinez said, “You must do it now because there's no union.” By way of
explanation, Lara volunteered that Martinez “had knowledge of the entire contract” that existed 10
under the prior hotel operator. (Tr. 326-327.)
Thomas Vargas is a long-tenured houseman supervised by Martinez. On June 10 he
returned to work after a 2-month medical leave. Vargas acknowledged that when he returned to
work he understood that Local 2 still represented the employees and that other members of 15
management told him as much. (Tr. 317-318) When Vargas submitted his doctor’s release to
Martinez before starting work, she told him about the new hotel ownership and added that there
was no union anymore so he could do everything that she wanted him to do. (Tr. 308, 319.)
On June 23, Martinez told Vargas there was no union in the course of giving him a written
warning for damaging a wall when a table he attempted to carry from the penthouse by himself 20
slipped and rolled down the stair well. (Tr. 312; GC Exh. 38, p. 6.)
Around July 15, Vargas overheard Martinez make a similar remark when she talked to the
room cleaners about a guest complaint at their morning meeting. Supposedly a room cleaner
named Anna became very critical of HPG for increasing the number of rooms assigned to each 25
cleaner and the lack of time to adequately complete their work.9 Martinez responded by saying
that she cleaned 16 rooms a day when working as a hotel maid and that, as there was no union
anymore, they were expected to clean their assigned rooms very well. (Tr. 310-311.)
Martinez remembered an occasion when the room cleaners complained about the 30
increased number of rooms they had to service but claims that she did not respond to them in the
manner Vargas attributed to her. Rather, Martinez said she told them they still had to follow
Company policy regardless if it's union or not. (Tr. 669.)
As recounted in more detail below, a protest occurred on June 28 when four of the room 35
cleaners, assisted by Local 2 representative Josephine Rivera, walked off before cleaning all of
their assigned rooms. In addition, there is no evidence that Lara, Solis, Vargas, or any other
employee ever challenged Martinez when she made statements about to the effect that there was
“no union.”
40
b. Argument and conclusions
Contrary to the Acting General Counsel’s claim, Respondent argues that Martinez is not a
supervisor under Section 2(11) of the Act. Although I have concluded, in agreement with the
Acting General Counsel, that Martinez is a supervisor within the meaning of Section 2(11) of the 45
Act, I find the evidence insufficient evidence to establish that Martinez’ “no union” remarks
violated Section 8(a)(1).

9 HPG also increased the length of the workday for the cleaners to 8-½ hours. The base
standard under the most recent union agreement had been 13 rooms per day. GC Exh. 46, p.
50. However, Martinez claimed that the Hotel Frank cleaners were doing 14 rooms per 8-hour
day under the prior union agreement. Both the old and new standards have detailed refinements
that reduce the daily room cleaning requirement in situations where the cleaner’s assigned rooms
are located on different floors, where a specified number of assigned rooms involve guests
scheduled to check out, and the like.
JD(SF)–18–11
15
5
The executive housekeeper’s duties as described in the job description (GC Exh. 39) for
the position provides as follows:
SUPERVISORY RESPONSIBILTIES:
Manages all employees in the Housekeeping Department. Is responsible for the overall10
direction, coordination, and evaluation of this unit.
Carries out supervisory responsibilities in accordance with the organization's policies and
applicable laws. Responsibilities include interviewing, hiring, and training, employees;
planning, assigning, and directing work; appraising performance; rewarding and 15
disciplining employees; addressing complaints and resolving problems.
The duties described in this job description were not effectively rebutted by other credible
evidence. Several are consistent with specific conduct by Martinez as shown throughout this
record. Accordingly, I find the Martinez is a supervisor within the meaning of Section 2(11) 20
because she is clearly vested with authority to interview and hire employees, assign and direct
the work of employees, and discipline employees, all in the interest of the employer.
Relying on two decisions, Becker Group, Inc., 329 NLRB 103 (1999), and Ed Morse Auto
Park, 336 NLRB 1090 (2001), the Acting General Counsel advances the proposition that a 25
“statement made by an employer to employees that there is no union at the facility after a union
has been recognized as the Section 9(a) representative constitutes a Section 8(a)(1) violation.”
(Acting General Counsel Br., p. 20.) After careful study, I have concluded that the violations
found in those two cases clearly turn on their peculiar facts rather than a per se rule of the type
articulated in the above-quoted portion of the Acting General Counsel’s brief.30
In the Becker case, the “no union representation” remark found unlawful occurred in the
context of a confrontation that erupted when a supervisor, who was about to issue disciplinary
warnings to an employee, angrily ordered a newly appointed steward of a newly certified union
seeking to serve as the employee’s Weingarten representative from his office. The case does not 35
stand for the broad proposition that a supervisor’s remark without more would necessarily violate
the Act. As my former colleague Judge Nations made clear in the following explanation for his
conclusion on this point, the context made the violation:
However, I believe (supervisor) Smith’s statement to (union steward) Cooper and 40
Jennings (on September 30) that there was no union representation at Respondent’s
facility constitutes an 8(a)(1) violation. The Union was certified as the exclusive collective-
bargaining representative of the Becker employees on July 19, following the July 1
election. . . . An employer, or its agents, cannot arbitrarily decide that a union does not
have a presence in the employer’s facility. The certification by the NLRB provides a 1-45
year presumption that the union represents the employees for purposes of collective
bargaining. . . . Had Smith merely informed Cooper that under the circumstances of the
meeting, Jennings had no legal right to union representation, I would not find a violation.
However, his statement went much further. Considering that the statement made by
Smith occurred as Cooper was attempting to engage in union representation, there was a 50
coercive nature to the statement. Such a statement has a chilling effect on a unit
representative’s ability to represent and on the employee’s right to be represented, and
thus constitutes an 8(a)(1) violation. [Emphasis added.]
55
JD(SF)–18–11
16
329 NLRB 113.5
The Morse case involved a similar form of hostile, supervisory interference with an
employee’s active effort to utilize the help of the newly certified union when meeting with
management over a pay dispute. On the relevant point, Judge Grossman found as follows:
10
The two employees (union steward Tucci and Fitzgerald, the nascent grievant) went to
(supervisor) Riker’s office, but he was busy and they went back to their work areas. About
45 minutes later, Riker came out to Fitzgerald’s work area. Tucci’s work area was next to
Fitzgerald’s, and he heard Fitzgerald tell Riker that Tucci had asked to be present at the
meeting between Riker and Fitzgerald. Riker replied, “No way,” and came over to Tucci’s 15
work area. “There’s no Union here,” he yelled at Tucci, “and you’re not the f–king shop
steward.” Fitzgerald was then called to Riker’s office.
After speaking with Fitzgerald, Riker told Tucci to accompany him to General
Manager Naso’s office. When they entered the office, Naso told Tucci that there was no 20
union at the facility, and that Tucci was not the shop steward. Tucci handed Naso copies
of the Union’s notification to Respondent of its certification and the notice identifying Tucci
as the shop steward. Tucci asked Naso whether he had received these documents, but
Naso did not reply. He told Tucci that he did not “appreciate Tucci counseling the men,”
that he had a “bad attitude,” and that he would terminate Tucci if he kept it up. Naso 25
testified that he considered a writeup for Tucci, because he became “involved in other
technicians’ business with regard to other technicians’ employment.”
336 NLRB 1099.
30
Martinez’ conduct, whatever it was, did not amount to anything resembling the crude,
supervisory interference with representational activities present in those two cases. Martinez is a
Filipina who acquired her position of responsibility after years of work as a room cleaner in the
industry. The “back of the house” at the Hotel Frank that she directly supervises is populated by
14 room cleaners, 2 or 3 laundry workers, and 2 housemen. Several in this group are Hispanic, 35
others are Chinese. Martinez speaks English and Tagalog but not Spanish or Chinese. She
gives directions to her crew in English. Based on my limited observation at the hearing, and the
fact that those few Hispanics from this crew who testified did so through a Spanish interpreter, I
find it fair to assume that most have very limited English proficiency.
40
Given the linguistic stew found in this unit, I find Martinez’ “no union” remarks, when
considered in context, to be highly ambiguous. But at worst, I find them to be nothing beyond
noncoercive misstatements of fact that lacked the heavy-handed, chilling characteristics so easily
evident in the Becker and Morse cases. Through the period when they were made, employees
openly wore their union buttons, attended the negotiating sessions, and engaged in protests of 45
the new working conditions with the participation of the Local 2 representatives who had
historically serviced this bargaining unit. And at best, it is possible, if not plausible, to view her
“no union” remarks as a shorthand code easily understood by this diverse group of workers that
let them know the old work rules embedded in the past union agreement, and practices that
evolved under it, did not apply to HPG’s new operation. Either way, I find the evidence 50
insufficient to sustain an 8(a)(1) violation. Accordingly, I recommend paragraph 7 be dismissed.
JD(SF)–18–11
17
3. Photographing concerted activities5
Complaint paragraph 8 alleges that Respondent engaged in unlawful surveillance on July
22 and September 8 when its agents took photographs, or appeared to take photographs, of
employees engaged in union activities.
10
a. Relevant facts as to July 22
On July 22, Local 2 conducted a large demonstration estimated in size to include
anywhere from 1000 to 1500 participants. The demonstration sought to put increased pressure
on various downtown San Francisco hotels during ongoing contract negotiations to agree upon 15
terms favorable to the union represented employees. Notices circulated in advance announcing
the demonstration. It began on Market Street, the main east-west thoroughfare in downtown San
Francisco, and proceeded to several different hotels in the area, including the Hotel Frank. The
demonstrators stopped for a period of time at each targeted hotel to chanted slogans.
20
The demonstrators arrived at the Hotel Frank around 4 to 4:40 p.m. and remained there
for 15 to 20 minutes. Kott described the scene as pretty chaotic as all traffic was stopped
because the street and parts of the sidewalks on both sides of the street were filled with
demonstrators. (Tr. 873-874) Hotel Frank employees Ali Abid, Jose Lara, Marc Norton, and Jack
Saltzberg joined the demonstrators in a show of support for Local 2 objectives. At least Abid had 25
a banner as he joined the rally at the Hotel Frank. As the demonstrators arrived there, five of
Hotel Frank managers, General Manager Stan Kott, Executive Housekeeper Martinez, Front
Office Manager Peter Kim, Human Resources Director Olmeda, and Human Resources Manager
Bryant Smith were standing on the sidewalk in front of the hotel.
30
Jack Saltzberg and Jose Lara saw Peter Kim take pictures of the rally in front of the Hotel
Frank. (Tr. 329; 502.) Ali Abid saw Maribel Olmeda holding her cell phone in a manner that
looked like she was taking pictures but he conceded that he did not know whether she actually
took any pictures. (Tr. 388; 395.) A picture of Abid at the demonstration with his banner was
posted on the employee bulletin board but there is no evidence as to who posted it. After the rally, 35
Kim showed Saltzberg the photos he had taken. Saltzberg said that Kim’s photos showed the
demonstration and the Hotel Frank employees participating in the demonstration. (Tr. 503.) Kim
did not testify and Olmeda did not deny Abid’s assertion that she appeared to be taking
photographs.
40
b. Argument and conclusions
Respondent’s argument concedes that its agents took photos or videos while the
demonstrators were at the Hotel Frank. As a general rule, photographing or videotaping
employees engaged in protected activity violates the Act unless the employer can demonstrate 45
that it had a reasonable basis to have anticipated misconduct by the employees. National Steel &
Shipbuilding Co., 324 NLRB 499 (1997), citing NLRB v. Colonial Haven Nursing Home, 542 F.2d
691, 701 (7th Cir. 1976) (“[T]he Board may properly require a company to provide a solid
justification for its resort to anticipatory photographing”).
50
Respondent Frank claims that it had a reasonable basis for photographing the July 22
demonstration in front of the hotel. The Acting General Counsel’s argues that the coercive effect
of photographing the employees participating in the demonstration outweighs Respondent’s
justification for taking them, i.e., that it was big enough to block traffic.
55
JD(SF)–18–11
18
I agree with the Respondent Frank’s contention that there was a reasonable basis for 5
photographing this large demonstration. The evidence describing the demonstration as large
enough to block traffic in and around the hotel for 15 to 20 minutes so that its guests, and
potentially emergency vehicles, were unable to travel to and from the Hotel Frank is not a minor
matter. Respondent Frank further asserts that the size of the demonstration which spilled onto
the sidewalks on both sides of the street provided it with a legitimate concern about maintaining 10
the entrances and the exits to the hotel. Moreover, no evidence establishes that the photographs
taken sought to zero in on the Hotel Frank employees, or that Respondent took any adverse
action or other type of coercive measures against any employee for participating in the
demonstrations. Instead, the evidence suggests that the four Hotel Frank employees who joined
the demonstration would have likely been consumed by the sheer size of the crowd. For these 15
reasons, I find the Acting General Counsel failed to establish that the photographing or
videotaping of the demonstration on July 22 violated the Act. Saia Motor Freight Line. Inc, 333
NLRB 784 (2001). Accordingly, I will recommend dismissal of this complaint allegation.
c. Relevant facts as to September 820
On September 8, a delegation of workers from the Hotel Frank and the Hotel Metropolis
along with Local 2 Agents Anand Singh and Josephine Rivera went to the Wells Fargo
headquarters in San Francisco to deliver a petition signed by 34 employees of the two hotels.
The petitions stated that the employees would promote a boycott of the hotels until management 25
ended “their anti-worker, anti-union campaign.”10
After the group finished at the bank headquarters, they proceeded to the Hotel Frank with
the intention of presenting the petition to General Manager Kott. When they arrived in the hotel
lobby they met Front Desk Manager Michael Infusino.11 Upon learning of Kott’s unavailability, 30
Norton informed Infusino about the beginning of the boycott. He proceeded to introduce others
from the group so they could speak “about the egregious things (they felt) the hotel has been
doing to its workers.” (Tr. 66.) Infusino willingly engaged the group, said nothing to indicate that
they were trespassing or doing anything unlawful, and made no demand that they leave. (Tr.
256, 786.) Instead, the group voluntarily left after about 10 minutes.35
Executive Housekeeper Martinez, in the lobby on her normal rounds, saw the group
engaged with Infusino. Norton said that she soon “she pulled out a camera and started clicking
pictures.” (Tr. 67-68.) Martinez admitted taking a picture of Norton and the group but implied that
she did so because Norton took a picture of her. (Tr. 673) Infusino did not realize that Martinez 40
had taken pictures until after the event. Martinez told him that she had taken pictures because
the group had taken several pictures of him. (Tr. 786-787)
d. Argument and conclusions
45
The Acting General Counsel argues that Respondent had no justification for
photographing this exchange. Respondent contends that Martinez’ had a reasonable basis for

10 Marc Norton, whose signature appears first on the petition and who claimed that he
participated in planning the boycott and the events surrounding it, said the delegation consisted of
himself and his partner, as well as six other workers from the Hotel Frank, one from the Hotel
Metropolis, maybe three from other hotels, and the two Local 2 representatives. Tr. 62-63. Local
2 Agent Rivera provided a different accounting of the participants that I find to be less reliable.
Tr. 410.
11 Infusino succeeded Peter Kim as the front desk manager in mid-July.
JD(SF)–18–11
19
taking pictures of the group because they were trespassers who were obstructing the lobby and 5
“blocking guests’ ability to traverse in and out of the hotel.
I find Respondent lacked a reasonable basis for the picture taking that occurred on this
occasion. Its contention that the group’s brief presence in its lobby amounted to trespassing
lacks merit where, as here, most were hotel employees or union agents authorized to visit the 10
hotel and Infusino failed to object to anyone’s presence. I also reject Respondent’s contention
that the group interfered with the comings and goings of hotel guests. This assertion is based
entirely on Martinez’ claim that one guest had to walk around the group while they were speaking
with Infusino in the lobby area. (Tr. 673.) Obviously, the petition bore a message the hotel did
not care to hear but the group delivering it remained peaceful, orderly, and respectful throughout. 15
In sum, I find Respondent lacked sufficient justification for the picture taking of the legally
protected employee activity that occurred on this occasion and, for that reason, I have concluded
that it violated Section 8(a)(1), as alleged. National Steel & Shipbuilding Co., supra.
4. Marc Norton’s discipline and termination20
Paragraph 10 of the Hotel Frank complaint alleges that HPG gave employee Marc Norton
a verbal warning on June 23 and a written warning on August 31, and then terminated him on
September 30, in order to discourage its employees from engaging in protected union and
concerted activities.25
a. Relevant facts
Marc Norton worked as bellman at the Hotel Frank for almost 12 years prior to his
discharge on September 30 by HPG. As already described above, Norton participated in many of 30
the Local 2 initiatives after HPG took over operation of the Hotel Frank. Even before HPG
became the operator at the Hotel Frank, Norton took a keen interest in the in the bankruptcy
proceedings involving the hotel where he worked that was instituted in early 2010. He attended
hearings at the bankruptcy court as well as the foreclosure sale. After one of the hearings, a
Local 2 attorney introduced Norton to Wali as an active union member at the Hotel Frank, and 35
told Norton that Wali would likely take over operation of the Hotel Frank if Centerline, a subsidiary
of Wells Fargo Bank, became the new owner of the hotel. That, in fact, occurred at the May 12
bankruptcy sale. At the conclusion of the sale, Norton congratulated Wali and then went to the
hotel to begin his work shift.
40
Shortly after Norton arrived at the hotel, a group of HPG officials, including Wali, Olmeda,
and Howard Jacobs, arrived at the hotel to meet with the employees. Jacobs, at the time HPG’s
president and chief executive officer, assured the employees that they would all be hired at their
same wage rate. He then began talking about what HPG’s plans for providing fringe benefits,
including health insurance and a pension plan. Norton twice interrupted him to point out that 45
those benefits were contained in the union contract. Finally, Jacobs informed the group that HPG
was not going to adopt the old union agreement. Immediately, Norton phoned union attorney
Wirshing to report that “we have a problem here.” As Norton described to Wirshing what he had
just learned, Jacobs continued the meeting. By the time Norton finished his call, Olmeda was
distributing HPG’s new employee materials. Jacobs requested that the employees complete and 50
sign all the necessary documents then and there. Again Norton spoke out arguing that the
employees should not be required to sign the document without having the opportunity to read
them. Following further discussion with the employees, Jacobs agreed that they given until the
start of their next shift before their signed documents had to be submitted. Shortly after the
meeting concluded, the hotel’s interim general manager, Claudio Simic, confronted Norton about 55
JD(SF)–18–11
20
appearing upset at this initial meeting and questioned him about his standing with the Union. (Tr. 5
44-49.)
From May 12 to virtually the day of his termination, Norton openly engaged in activities on
behalf of the Hotel Frank employees and the Local 2 objectives. Those activities included:
10
ï‚· Circulating a petition among employees to become a union steward;
 Reporting General Manager Kott’s union-button ban to the Local 2 president, continuing to
wear a union button throughout the ban, and openly distributing union buttons to the hotel
employees who attended the June 10 bargaining session;15
ï‚· Attending the meetings between Local 2 officials and the Hotel Frank room cleaners that
concerned their complaints about an increase in their workload and subsequently
coordinating the June 28 room cleaners’ protest with Local 2 officials;
20
ï‚· Participating along with four or five other Hotel Frank employees in the large Local 2 rally
on July 22 when it arrived at the Hotel Frank;
ï‚· Initiating inquiries with the City of San Francisco bureaucracy and taking other actions that
led to employer payments required under pertinent state labor codes and city ordinances 25
to compensate employees for working nights without break periods, a sick leave benefit,
and the cost of commuting to work. (GC Exhs. 17-26.)
ï‚· Assisting in the planning of the Hotel Frank boycott that started on September 8 and
participating in the publication of that boycott by joining the delegation that went to Wells 30
Fargo Bank and then to the Hotel Frank;
ï‚· Planning and participating in the subsequent picketing at the Hotel Frank in support of the
boycott; and
35
 Attending the Local 2’s bargaining sessions with the Hotel Frank.
After taking over hotel operations, HPG employed professional evaluation firms, referred
to as “mystery guests.” These firms assigned personnel to visit the hotel for a stay and then
prepare detailed reports to hotel executives concerning the service provided during their stay. 40
HPG also utilized an executive from one of these firms to conduct followup employee training.
Dale Blosser, owner of D.C. Blosser & Associates, conducted the first of the mystery
guest training sessions on June 19. During his presentation, Blosser commented positively on an
experience at another hotel where a room cleaner offered to assist him with his luggage when he 45
stepped from an elevator at the floor where his room was located. Norton, who perceived this to
be contrary to the historical practices at the Hotel Frank, raised his hand seeking to speak.
Norton described his remarks after Blosser recognized him to speak thusly:
And I said, "Mr. Blosser, you may not know it, but you're walking into a mine field 50
here." As soon as I said the word mind field he sort of gestured like this and sort of
looked around the room in a sort of exaggerated gesture and said, “Mine field? Mine
field? I don’t see any mines.”
JD(SF)–18–11
21
And I said, “Well Mr. Blosser, you may not know it, but we're in the middle of a big 5
union fight here.”
And as soon as I said that I heard Mr. Kott over to my right say, “Marc, Marc.”
And I said, “I'll be done in just a moment.” And I proceeded to say, “Mr. Blosser, if 10
you're going to talk about having room cleaners carry bags, then that's something that
would be more appropriate to the bargaining table with our union president Mike Casey
than at a training meeting.”
When I got done saying that immediately there was a worker from -- her name I 15
believe is Bella from the Metropolis who immediately spoke up and said, “This isn't about
the union. This isn't about the union. This is about service.”
And nobody tried to keep her quiet. And then Mr. Kott spoke up and he said
essentially the same thing that Bella had said, which is, "No. This isn't about the union. 20
We just have certain service standards that we want to uphold and that's what this is
about." And that was the end of that discussion about the union.
(Tr. 78-79.)
25
On June 23, Kott called Norton to an office and spoke to him in with Olmeda and former
union steward Jack Saltzman present about what his remarks to Blosser at the June 19 training
session. Kott told Norton that he should not have talked about the union during the training
session, that his remarks were disruptive and negative, and would likely have a negative
influence on other employees. After speaking further about the topic, Olmeda spoke up. 30
According to Norton, Olmeda said, “You know, Marc, everybody here is still on probation. And
we are going to be making some decisions at the end of that probation about who to keep on
hand. (W)hen we make those decisions it’s going to be important to us whether or not workers
are on the same page with us.”12 At Kott’s insistence, Norton agreed that at future sessions of
that sort, he would speak to Kott privately about matters that involved the union “if possible and 35
appropriate” and the meeting ended. (Tr. 82-83.)
Later, an unsigned memo of the meeting, labeled “Record of Conversation,” was prepared
and put in Norton’s personnel file. (GC Exh. 7.) After summarizing Norton’s conduct at the June
19 meeting, the Record of Conversation states:40
Mr. Norton's tone of voice and demeanor was perceived as a very aggressive interruption.
His overall behavior truly came across as being "anti-guest service" and against
teamwork, whether he intended to or not and initially set a very negative tone to the start
of the meeting.45

12 Olmeda denied that she made the “same page” comment. She testified that she said
“something along the lines” that the hotel had taken time to make sure employees understood the
job performance standards so it would remain above its competitors. Tr. 628. Saltzman largely
corroborated Norton’s account, particularly Olmeda’s “same page” comment. Tr. 506. Moreover,
Norton’s written note prepared shortly after the meeting reflects the “same page” comment by
Olmeda. GC Exh. 56, p. 3. Given the degree of corroboration for Norton’s account, and my lack
of confidence in Olmeda’s recollection, I credit Norton.
JD(SF)–18–11
22
The memo goes on to state that the managers stressed that the training was to “reinforce the 5
hotel's expectations” concerning service standards that had been established for all employees.
It concluded by say that the hotel wanted Norton “to contribute to a positive work environment
and promote an environment of team work for the good of the hotel, its guests and coworkers.”
As time went on, Norton became highly critical of the mystery guest reports. In early 10
August, Human Resources Manager Bryant Smith distributed memo addressed to the front-of-
the-house staff about another mandatory training session that, as it turned out, Blosser also
conducted.13 (GC Exh. 27.)
The day before Blosser’s mid-August training session, Norton prepared and delivered a 15
lengthy letter to Kott about a July 11 mystery guest report. Norton’s letter contained numerous
criticisms of the report and the hotel’s practices. He first complained that “many of the matters
raised by (the July 11) report properly belong at the bargaining table with our Union
representatives, rather than being unilaterally imposed at a ‘training session.’” He implied that
confusion existed on the part of employees about who set the standards to be followed, what 20
standards they were expected to follow, and how the employees were expected to know the ones
to follow. He detailed “generic” mystery guest complaints about services and equipment that did
not exist at the Hotel Frank. He suggested that at least one of the mystery guest’s complaints
(the failure of the front desk clerk to do the bellman’s work of loading luggage in a vehicle at
curbside) reflected poorly on management for its under scheduling of bellmen and front desk 25
personnel. He charged that aspects of the mystery guest’s report were offensive (language
difficulties with the room cleaners) and false (employees wearing union buttons but not
nametags). He concluded his letter by expressing his “dismay at the fact that this inappropriate,
inaccurate, and offensive ‘Mystery Guest Report’ appears to be the basis for the decision to
extend our probation period by 45 days.” There is no evidence that Kott responded to this 30
particular letter.
On August 31, Kott gave Norton a written disciplinary notice for an incident that occurred
on August 30 that involved Dayna Zeitlin, the HPG’s director of sales and marketing as well as
the assistant manager for the Hotel Frank, who maintained an office at the hotel. Before arriving 35
at work that day, Zeitlin said she purchased a large quantity of candy to use for a hotel promotion.
When she arrived at the hotel, she had one or two grocery bags filled with candy as well as her
computer bag and a large purse.
Norton started out from the hotel lobby when he saw her taxi pull up at the curb in front of 40
the hotel. As he got to within 5 to 7 feet of the taxi, he recognized Zeitlin in the cab. Assuming
that she simply had taken a taxi to work that day as she had occasionally done in the past, Norton
returned to his station in the hotel lobby. Norton claims that he did not see that Zeitlin had any
luggage at all. Although Zeitlin claimed that she was in need of help, she admittedly did not ask
him to assist her or otherwise speak with Norton who, she claims, was standing in the hotel lobby 45
doing nothing. (Tr. 99-100, 600, 606.)

13 Smith’s memo provided the times for two back-to-back sessions scheduled at the Hotel
Frank on August 16 and stated that employees would be notified which session they were to
attend. Norton, Ali Abid, the current Hotel Frank union steward, and Jack Saltzberg, the former
union steward there, were the only employees scheduled to attend the second session on August
16. As it turned out, another employee ended up in their group but only because he had been
late for the earlier session he had been scheduled to attend. Tr. 149.
JD(SF)–18–11
23
Later that morning, Zeitlin told Kott that Norton failed to help her when she arrived that 5
morning. He, in turn, decided to discipline Norton after consulting with Human Resources
Manager Smith and Front Desk Manager Infusino, Norton’s immediate supervisor. He admittedly
did not talk with Norton before reaching that decision and acknowledged that he made his
decision based solely on Zeitlin’s account because of her managerial position at the hotel. (Tr.
847.)10
Norton’s written warning (on a disciplinary form used by the hotel) summarizes the
incident and identifies Norton’s performance and behavior as the areas of concern that gave rise
to the disciplinary action. The warning states: “We have previously spoken to you with regards to
your attitude and the importance of working together as a team.” It admonished Norton to treat 15
other hotel employees “exactly how we expect our guests to be treated.” Although another
section of the form notes that Norton had “often set a great example of guest service,” it
concludes with the warning that any further incidents could result in added discipline or
termination. (GC Exh. 9.)
20
On September 5 Norton prepared and submitted a letter to Infusino concerning the
content of an early August mystery guest report and management’s delay in furnishing the report
to the employees. 14 (GC Exh. 29.) His complaints about the delay in providing the report appear
to have sprung from the fact that the report had been discussed repeatedly at the August 16
training session conducted by Blosser. Norton noted that during the meeting Kott stated 25
repeatedly that he “was not an “MVP” in this report” and that Blosser had “acknowledged that (the
employees) were being ‘blind-sided’ by this report.”
In the remainder of the September 5 letter, Norton responded to the adverse comments
the mystery guest made about his performance. He challenged the guest’s assertion that he had 30
not been “friendly and attentive” by noting that he had welcomed him to the hotel when they first
met at the curb and chatted with him in the lobby in between helping other guests. He also
denied the guest’s claim that he was “minimalistic” in his performance, and further denied that he
had made no attempt to learn and use the spotter’s surname as preferred under the hotel’s
service standards. No evidence shows that Infusino ever responded either verbally or in writing.35
As previously noted (see sec. 3.c., above), Norton actively participated in the group of
Local 2 agents and members who visited the Wells Fargo Bank and the Frank on September 8 to
publicly announce Local 2’s boycott of the Hotel Frank. Thereafter, Local 2 steward Abid and
Norton planned picketing events in front of the Frank in furtherance of this boycott.40
On September 15, 18, 23, and 29, Local 2 agents, employees from the Frank and
Metropolis and other Local 2 members picketed in front of the Frank chanting slogans and
distributing handbills (see GC Exh. 4) urging guests to join the boycott by checking out of the

14 Norton’s letter implied that requests for the report had been made at the training session
where it had been referred to frequently and discussed two requests after that session. His letter
charges that the first post-session request, presumably made by union activist Jack Saltzman, a
week after the training session and 3 weeks after the date shown on the report ultimately
furnished had not been provided because it was still undergoing editing for “unspecified
corrections.” The second request, according to Norton’s letter, came on August 26 when Local 2
Steward Abid submitted a written request for the report. There is no evidence of a response to
this September 5 letter from any hotel manager nor did any of the hotel managers, including
Infusino—the addressee—who testified at the hearing seriously challenge the Norton’s assertions
in this letter.
JD(SF)–18–11
24
Hotel Frank. The first three picketing efforts began around noon and lasted a couple of hours or 5
so. The September 29 picketing began later in the afternoon so the room cleaners could join the
picketing when the got off work at 4:30 p.m. Although Norton participated in planning all of the
picketing events, he only participated on September 18 and 29 because his work schedule
precluded his participation on September 15 and 23. Each succeeding picketing event, Norton
said, became progressively noisier as more participants joined in support of the boycott. (Tr. 68-10
72) The participants had a large banner beginning with the third event and Local 2 Business
Agent Rivera led the chanting with bullhorn on September 29.
On September 30, five days after his extended probationary period ended, Kott terminated
Norton. He provided Norton with a full page memo to explain the termination that took effect 15
immediately. The preliminary paragraphs addressed management’s goals and the standards of
service implemented when it took over the operation of the hotel. The memo then cites Norton’s
alleged performance deficiencies as the reason for his termination:
In evaluating your performance as a whole, we have determined that you are not fulfilling 20
our expectations and that you have not demonstrated a consistent level of service at the
standards that we have established.
As noted in the majority of the Mystery Shoppers reports, you consistently fail to attempt
to learn and utilize the guest name; exhibit a lack of enthusiasm or attentiveness to guest 25
needs; and often present minimalistic and less than personalized service. Management
has reached the same conclusions regarding your performance based on Management’s
personal observation of your performance during your probationary period. This level of
performance and efforts by you are not acceptable or conducive to the serviced minded
working environment we are striving to achieve.30
Therefore, we have determined that your performance does not meet the standards that
we have set in place to help position our hotel above our competitors, such that we will not
be offering you regular full-time employment after the completion of your extended
probationary period. Accordingly, we will be ending our employment relationship with you 35
effective today.
(GC Exh. 10.)
HPG President Wali asserted that he made the decision to terminate Norton after 40
consulting with Kott and Olmeda, and his consideration of Kott’s negative evaluation of Norton’s
performance evaluation, the “writeups” in his file, and his disruptive conduct at the June training
session.15 (Tr. 546.) Olmeda remembered that Wali consulted her about Norton’s termination.
With some prodding, she recalled that they spoke about a week before Norton’s termination. She
said that Kott recommended the termination based on his observation of Norton’s failure to 45
measure up to the job performance standards even after the training that had been provided. (Tr.
631.)
Kott explained his recommendation to terminate Norton in this manner:
50
Q. Okay. And after having this, did you make any recommendation Mr.—I mean, what
was the conclusion regarding Mr. Marc Norton's employment?

15 Although Wali did not specifically identify the June meeting, there is no evidence warranting
an inference that Wali could have been referring to any other meeting.
JD(SF)–18–11
25
5
A It was my opinion that he was not meeting our standards.
Q Okay. And what was that opinion based—I mean, you've mentioned a little bit. But can
you be clear? Just tell us again what it was based on.
10
A Yeah. Based on the overview of all of the shoppers' reports as a whole and, you know,
patterns and consistencies and, you know, missed opportunities within those areas, my
own personal observations, you know, day-to-day and, you know, over that—over the
entire period of time I'd been in the city.
15
. . . .
Q Okay.
A [F]eedback from his direct supervisor, observations of Mr. Norton in meetings, you 20
know, our training meetings, I mean just the sum total of his demeanor and willingness to
try to do more and do better with us as it related to the other staff members. I mean, it
was just a lot of different things factored into it.
(Tr. 868-869.)25
Infusino oversees and schedules the bell staff and other front of the house employee
categories. In that capacity, he served as Norton’s direct supervisor. Infusino explained that a
“bellman's responsibilities are to assist the guests from the time they arrive at the hotel to the time
they leave.” (Tr. 699.) He asserted that “Mr. Norton's performance generally speaking for our 30
standards was inadequate” (Tr. 712) and repeatedly affirmed for Respondent’s counsel that the
negative comments about Norton in various mystery guest reports were “consistent with [his]
behavior and . . . job performance.”
Infusino acknowledged that he never received a complaint about Norton’s performance 35
from a regular hotel guest and admitted that Norton never received any disciplinary action for
failing to meet performance standards as noted in the mystery guest reports. Although Infusino
asserted that he addressed performance issues as they arose, he had only a vague recollection
of correcting Norton’s conduct “[m]aybe two or three times.” One, he said, concerned sitting at
the concierge desk and the others he could not recall. (Tr. 784.)40
b. Argument and conclusions
An employer’s disciplinary action against an employee motivated by union animus violates
Section 8(a)(3) of the Act. In determining the motive underlying an employer’s adverse action 45
against an employee, the Board employs a causation test first adopted in Wright Line, 251 NLRB
1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982) and later approved by the Supreme Court in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983). As refined over the years, that test first requires the Acting General
Counsel to persuade that a substantial or motivating factor for the employer’s challenged decision 50
was prohibited by the Act. If that burden is met, the burden of persuasion then shifts to the
employer to prove as an affirmative defense that it would have taken the same action even if the
employee had not engaged in protected activity. See Manno Electric, 321 NLRB 278, 280 fn. 12
(1996), and the cases cited there.
55
JD(SF)–18–11
26
To carry his burden, the Acting General Counsel must establish by either direct or 5
circumstantial evidence that (1) the employee engaged in a protected activity, (2) the employer
knew of that activity, and (3) the employer took adverse action against the employee motivated in
substantial part by the employee’s protected activity. FPC Moldings, Inc. v. NLRB, 64 F.3d 935,
942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994). If he succeeds in meeting this burden, then
the burden of persuasion shifts to the employer who must show that the same action would have 10
been taken even in the absence of the employee’s protected conduct. An employer does not
carry its burden by merely showing that it had a legitimate reason for imposing discipline against
an employee; instead it must persuade that the same action would have been taken even absent
the protected activity by the employee. Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989), enfd.
942 F.2d 1140 (7th Cir. 1991).15
(1) The June 23 warning
The parties disagree as to whether Norton’s remarks at the June 19 meeting amounted to
concerted activity and, if so, as to whether protected by the Act. It is well to note that the June 23 20
warning is alleged as a violation of Section 8(a)(3). That being so, I found the arguments by both
sides confused and wide of the mark in determining the proper outcome on the issue presented
by the Regional Director’s complaint and the evidence adduced.
Respondent argues that there is no evidence that Norton had any support from any of his 25
fellow employees for his activity at the June 19 meeting so his conduct fails the concerted
activity tests established by the Meyers litigation.16 In essence, Respondent says that Norton
acted on behalf of only himself. Respondent’s argument lacks merit. Section 7 provides in
pertinent part that employees “shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own choosing, and to 30
engage in other concerted activities for the purpose of collective bargaining or other mutual aid or
protection.” A Meyers’ concerted activity analysis just does not apply to these facts.
Even assuming that Norton acted alone, he engaged directly and unmistakably in Section
7 union activity. As the Acting General Counsel argues, “Norton’s remarks were a clear 35
outgrowth of his earlier Union activity and of his involvement as an employee representative in
the negotiations for a collective-bargaining agreement.” (Acting General Counsel Br., p. 27.)
Objectively speaking, Norton’s statements at the June 19 meeting supported Local 2’s efforts to
bargain about employee working conditions that had been turned upside down by the extensive
implementation of new terms and conditions of employment when HPG took over, including the 40
imposition of detailed job standards that differed significantly from those which had existed at the
hotel for years. In that sense, Norton spoke out to “assist” Local 2, as that term is used within the
meaning of Section 7, with its representational duties.
Second, Respondent’s alternative claim that Norton’s brief interruption amounted to an 45
unprotected disruption of the training session also lacks merit. The Board has long upheld the
right of an employee, within limits, to speak about protected subjects at mandatory meetings
conducted by their employer. Prescott Industrial Products, 205 NLRB 51 (1973). See also J.P.
Stevens, 219 NLRB 850 (1975). Prescott described the limits as follows:
50

16 Meyers Industries, 268 NLRB 493 (1984) (Meyers I); remanded sub nom. Prill v. NLRB,
755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985); Meyers Industries, 281 NLRB
882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
JD(SF)–18–11
27
[T]here is a line beyond which employees may not go with impunity while engaging in 5
protected concerted activities and that if employees exceed the line the activity loses its
protection. That line is drawn between cases where employees engaged in concerted
activities exceed the bounds of lawful conduct in a moment of animal exuberance or in a
manner not motivated by improper motives and those flagrant cases in which the
misconduct is so violent or of such character as to render the employee unfit for further 10
service.
205 NLRB 51-52.
Here, Blosser recognized Norton’s request to speak and he made a brief but relevant 15
statement concerning a subject plainly protected by Section 7. He said nothing that comes close
to the line separating protected and unprotected activity described above. On the contrary, any
holding that Norton’s brief, respectful, and restrained statement after being recognized to speak
was unprotected because it “disrupted” the meeting would be tantamount, in my judgment, to
applying the Livingston Shirt theory17 advanced by the dissenters in the Prescott case. Because 20
that would effectively eviscerate an employee’s right to engage in protected activity at a
mandatory meeting absent the employer’s approval, the principle embodied in the Prescott case,
I am not at liberty to conclude that Norton’s brief interruption at the June 19 meeting amounted to
an unprotected disruption.
And third, the Acting General Counsel’s brief analyzes Norton’s conduct at the June 19 25
meeting using the four factor balancing test adopted in Atlantic Steel, 245 NLRB 814 (1979), in
order to reach a conclusion he did not lose the protection of the Act. No reason at all exists to
apply the Atlantic Steel balancing test to Norton’s protected conduct here. As the facts show,
Norton raised his hand to gain the speaker’s recognition and, when recognized, he made very
temperate remarks designed to point out to the speaker that the subject matter just addressed 30
would be better taken up at the bargaining table between the hotel management and Local 2.
Although Kott and another employee sought to discourage any discussion of labor-management
issues at that time, no evidence shows that he engaged either of them in argument or made any
rejoinder of any kind. Instead, he briefly finished what he had to say and then remained quiet
throughout the rest of the training session.35
In Tampa Tribune, 351 NLRB 1324 (2007), the Board explicitly stated that the Atlantic
Steel balancing test is used to “assess whether an employee’s admittedly impulsive and unwise
conduct is so severe that it outweighs his or her Section 7 rights.” (Emphasis added) This
explanation is also implicit in the language used in Atlantic Steel, particularly its choice of the 40
word “outburst” found in the third and fourth factors adopted as a part of the balancing test. It
would be rationally absurd to describe patently protected conduct as an “outburst.” The Board
designed the Atlantic Steel test for cases where something occurs in the course of protected
activity that gives rise to an arguable claim that the employee’s conduct ceased to be protected.
For example, the employee in the Tampa Tribune case referred to the company’s vice president 45
as a “stupid fucking moron” while talking with his supervisors about a series of letters the vice
president had written to employees blaming their bargaining representative for the lack of
progress in negotiations. Similarly, the employee in Atlantic Steel used the term “lying son of a
bitch,” or “m— f— lie” (or "liar”)” in reference to his supervisor’s statement while they talked about
an overtime grievance.50

17 Under Livingston Shirt, 107 NLRB 400 (1953), an employer may deny a union access to
reply to a non-coercive, captive-audience speech made by the employer. The Prescott
dissenters would have applied that holding even to the employer’s pro-union employees.
JD(SF)–18–11
28
Here, Norton did nothing of the kind. There is no impulsive or unwise conduct, no 5
“outburst,” that would give rise for an occasion to measure the protected nature of his conduct
using the Atlantic Steel balancing test.
Although Kott and Olmeda might have been justified in attempting to persuade Norton on
June 23 to make his objections to the trainer’s statements known to them privately, they clearly 10
engaged in unlawful coercion by warning that similar conduct or anything else not “on the same
page” with management might be considered when deciding if he should be retained at the
completion of his probationary period. By doing so, I find Respondent violated Section 8(a)(1)
and (3), as alleged.
15
(2) The August 31 discipline
Counsels for the Acting General Counsel argue that Respondent’s hostility toward
Norton’s union activity motivated this written warning. They further argue that Respondent failed
to establish that it would have taken the same action even in the absence of Norton’ protected 20
union activity. Respondent argues that it lawfully warned Norton “because he intentionally failed
to assist a co-worker carry bags.” (Respondent’s Br., p. 11.)
The Acting General Counsel asserts that the reference in Norton’s written warning to the
fact that management had previously spoken to him about his “attitude and importance of working 25
together as a team” is direct evidence of a discriminatory motive because it, in effect,
incorporates the unlawful June 23 warning against speaking about protected union matters at a
training session. That coupled with Kott’s unwillingness to even listen to any explanation that
Norton might have for what occurred before deciding to discipline Norton based on Zeitlin’s
report, provides an ample basis, the Acting General Counsel argues, for concluding that Norton’s 30
union activities contributed substantially to the issuance of this warning.
Plainly, Norton had engaged in substantial protected union activity by the end of August.
Based on this record, it would be fair to infer that after the HPG commenced operating the Hotel
Frank, Norton was the most ardent and outspoken supporter of Local 2 at the Hotel Frank. There 35
is also ample evidence that the hotel management knew of Norton’s considerable support for,
and activities on behalf of, the Union. Further, the evidence establishes that Respondent
disapproved of his open and persistent support for the Union. Early on Olmeda singled Norton
out for wearing a union button on his work uniform. A month or so later, she warned Norton that
his protected training session comments could threaten his employment. Undaunted, Norton 40
continued his overt efforts by openly seeking support to become a union steward, by participating
in the room cleaners’ protest, by openly assisting union representatives during the bargaining
sessions, by charging that certain of the management-inspired mystery guest reports contained
inaccurate and offensive descriptions, and by participating in the Union’s large demonstration on
July 22. Norton’s allegiance to the Union did not go unnoticed. Just a week or two prior to the 45
Zeitlin incident, the hotel isolated Norton along with the experienced union stewards from the
main group of employees when it conducted the August 16 training session.
The Acting General Counsel emphasizes the reference in this written warning to the
unlawful warning of June 23. I agree that Kott’s citation to Norton’s earlier oral warning as 50
reflective of an unacceptable “attitude” and “teamwork” conveys hostility toward Norton because
of his protected conduct in that earlier context. In doing so, Kott’s use of those terms in the more
current context of failing or refusing to assist a fellow employee renders the terms much less
ambiguous in assessing the presence or absence of a malevolent motive.
55
JD(SF)–18–11
29
In addition, I put substantial stock in the summary nature of Kott’s decision to discipline 5
Norton based solely on Zeitlin’s account. I, for one, found her account of the alleged incident as
related from the witness stand singularly unimpressive. Her testimony exhibited a sufficient
degree of confusion, exaggeration, and rash judgment to cause me to doubt, at least, her
capacity to recall the occasion with a reasonable degree of accuracy and worst her veracity all
together. At first, she confused her mode of transportation, insisting that she had driven her own 10
auto. Perhaps that mistake may appear to be minor but the fact that she arrived in a taxi most
likely explains Norton’s approach toward her vehicle in the in the first place. No evidence shows
that he or any other bellman routinely approached to assist her when she drove up in her private
automobile. Moreover, her testimony about the number and the bulk of the bags she brought with
her seemed to grow as her testimony wore on. Her charge that Norton observed her struggling 15
with her load took on a hollow ring when she admitted that she never requested assistance of him
or apparently any other hotel employee either then or at any other time that morning.18 In sum, I
find the whole incident to be pretextual and infer from that conclusion that this action was taken
by Respondent as a preliminary step to terminating eventually terminating Norton. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (where the trier of fact finds that 20
the stated motive for discipline is not credible, he or she may infer another motive, “one that the
employer desires to conceal—an unlawful motive—at least where . . . the surrounding facts tend
to reinforce that inference.”). The scope of Norton’s activity, Zeitlin’s lack of credibility concerning
the incident, and Kott’s quick decision to discipline merits such an inference here. According, I
find that the written warning violated Section 8(a)(3), as alleged, because it was substantially 25
motivated by Respondent’s hostility toward Norton’s numerous activities in support of Local 2.
(3) Norton’s September 30 termination
I find in agreement with the Acting General Counsel that Norton’s open and extensive 30
activity in support of Local 2, obviously well known to Respondent, coupled with the union animus
HPG managers and supervisors exhibited from the outset of the take over of operations at the
Frank, including specifically the Olmeda’s June 243 threat that Norton risked retention for
speaking up in support of Local 2, provides an ample basis for the inference that his termination
was substantially motivated by his pro-union activities and sympathies. This is especially true 35
where, as here, Norton appears to have been the only employee denied full-time status based on
work performance and the fact that his termination occurred five days after his probationary
period ended and the day following his participation in the most boisterous of all of the boycott
demonstrations in front of the hotel.
40
Wali’s reference to Norton’s so-called disruption of a training session on June 23 coupled
with the writeups in his file, which would include the one resulting from that incident, shows the
extreme sensitivity that the Respondent Frank’s management toward employee protected activity.
But Norton’s lawful activity on that occasion pales by comparison to his standing in front of the
hotel the day before his discharge distributing handbills urging guests to check out of the hotel 45
and potential guest to boycott the hotel due to the ongoing labor dispute. A comparison of these
two types of conduct provides an ample basis for inferring that Norton’s termination almost
certainly resulted from his aggressive boycott activities as opposed to his occasional failure to

18 Respondent argues that Norton intentionally refused to assist Zeitlin on August 30. This
argument is based on Zeitlin’s unsupported assertion that Norton saw her “struggling” with her
bags and returned to the hotel lobby without offering assistance. I find that evidence insufficient
to find Norton’s conduct was intentional. He credibly denied noticing that she had numerous
bags, she never sought assistance, and the evidence otherwise fails to support the claim that that
employees previously knew that guest service standards applied equally to hotel managers.
JD(SF)–18–11
30
seek out and use a guest’s name or somehow appear enthused while otherwise providing reliable 5
and competent service as a bellman.
Respondent Frank argues that it chose not to offer Norton full-time employment at the end
of his probationary period because he consistently failed to meet its guest service standards, a
fact verified by the mystery shopper reports and the personal observations by members of 10
management as well as the August 30 incident involving Zeitlin. The Acting General Counsel
further argues that Respondent Frank failed to establish as an affirmative defense that it would
have taken the same action against Norton even in the absence of this his union activities.
Instead, the Acting General Counsel argues that HPG’s defense amounts to nothing but a pretext
designed to rid itself of a strong Local 2 activist. 15
Although some of the mystery guest reports certainly faulted Norton for failing to meet
certain guest service standards, other reports, notably the first Blosser report and the September
12 report, clearly praised Norton for certain aspects of his performance. Given the nature of
these snapshots, and the lack of any credible evidence showing that Respondent Frank’s 20
managers and supervisors initiated any concrete corrective action directed at Norton specifically
over the course of his probationary period, 19 I find Respondent Frank has used these reports as
a shield to hide its true motive for terminating this Local 2 activist. My conclusion seems all the
more warranted by the fact that Respondent Frank failed to take action against Norton prior to the
expiration of his probationary period and the fact that as late as Norton’s written warning based 25
on Zeitlin’s report Kott said that Norton “often set a great example of guest service.” Accordingly I
find the evidence in support of Respondent Frank’s affirmative defense weak and insufficient to
overcome the more persuasive evidence that Norton’s persistent, and increasingly strident,
activities in support of Local 2 motivated his termination. Accordingly, I have concluded that
Norton’s September 30 termination violated Section 8(a)(1) and (3) as alleged.30
5. The luggage room door and chair
Paragraph 12(a) of the Frank complaint alleges that HPG violated Section 8(a)(1) and (5)
of the Act on or about August 27 by posting a notice at the Hotel Frank informing employees that 35
the door between the front desk and the luggage room had to remain closed, and by removing a
chair located in the luggage room without first notifying and offering to bargain with Local 2 over
these changes.
a. Relevant facts40
At the May 12 meeting with employees, the HPG representatives distributed a list of rules
applicable to the front of the house personnel. One of the rules required front desk workers and
the bellmen “to assist the guests while standing with the exception of Bell Persons seated for
Concierge functions . . . or reasonable accommodations as required by law.” The HPG 45
management also removed stools previously available to the front desk clerks to sit on while
working and retained an ergonomics consultant to adjust the front desk computer equipment for
use while standing.
Adjacent to the front desk area is a separate, rectangular room used for storage generally 50
referred to as a “luggage” room. The room, which can be entered from the lobby area through a
locked door to the left of the front desk, is used by the bell staff to store guest luggage, laundry

19 The only evidence of particularized corrective action in Norton’s case is limited to vague,
self-serving, and incredible assertions by Kott and Infusino that they occurred.
JD(SF)–18–11
31
and dry cleaning, and other miscellaneous items. The luggage room can also be entered from 5
behind the front desk through a door that opens into the front desk area. An opening without a
door at the back of the room leads into the office area of the front desk manager. The outer area
of the front desk managers’ office is used for overflow luggage and other miscellaneous storage.
(GC Exh. 11.)
10
After the removal of the front desk stools, front desk employees, if not assisting a guest or
busy with their other duties, began sitting in an unused chair that had long been stored in the
luggage room. When doing so, they would kept the door to the front desk work area open in
order to observe guests arriving at the front desk for service. (GC Exh. 36; Resp. Exh. 22.) Abid
and Norton claim that the first front desk manager, Peter Kim, had permitted Jack Saltzberg to 15
use the chair stored in the luggage room because of his bad back but Saltzberg did not confirm
that assertion when he testified.
In mid-August Kott noticed the luggage room chair and asked Infusino what the chair was
being used for. Infusino told Kott that employees occasionally used it for a short break or when 20
speaking with him in his office. Following further discussion, Kott told Infusino to have the chair
removed so there would be more space in the luggage room and Infusino did so.
A short while later, Infusino also posted a sign on the door leading to the front desk work
area from the luggage room stating that the door had to remain closed at all times. Infusino 25
explained that the sign went up after a guest entered the front desk work area where cash is kept.
This intrusion, he said, occurred because the door was open and blocked the security camera
mounted in the corner of the front desk work area near the door, thereby preventing the early
detection of the guest. (Tr. 788-789)
30
Admittedly, Respondent Frank gave no prior notice to Local 2 about the removal of the
luggage room chair or the posting of the closed-door notice.
b. Argument and conclusions
35
The Acting General Counsel argues that Respondent Frank had a duty to bargain over the
removal of the chair from the luggage room because its “removal . . . and (the) prohibition on
keeping the luggage room door open . . . substantially changed the working conditions of the front
desk staff by making them stand for the duration of their eight-hour shift.” Respondent Frank
argues it had no duty to bargain over that subject because the requirement for the front office 40
staff to stand while on duty had been established as an initial term and condition established
when it first began operating the hotel.
I agree with Respondent’s contention. Respondent plainly established, as an initial term
and condition of employment, a requirement that its front office staff stand while on duty. The fact 45
that employees occasionally disregarded this requirement by using a chair that happened to have
been stored in the luggage room is not sufficient to establish a practice sufficient to overcome
Respondent’s established policy such that a duty to bargain over removal of the chair that had
been stored in the luggage room and the ancillary closed-door notice arose. Having concluded
the dual requirement for employees to stand while working in the front desk area and that the 50
door remained closed had never been altered either implicitly or explicitly, I find Respondent had
no duty to bargain over the removal of the chair in August. NLRB v. Burns Security Services,
406 U.S. 272, 294-295 (1972). Accordingly, I recommend that this allegation be dismissed.
JD(SF)–18–11
32
Conclusions of Law5
1. Respondent Frank and Respondent Metropolis are each an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act
2. By issuing written warnings to employees Souping Huynh, Amy Lum, Dinora Medrano, 10
and Monica Solis on June 29 for engaging in protected concerted activities; by prohibiting
employees from wearing union insignia; and by photographing employees on September 8 while
engaged in protected union activities, Respondent Frank engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
15
3. By issuing written warnings to employees Julia De Leon and Vilma Perez on June 29
for engaging in protected concerted activities, Respondent Metropolis engage in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By issuing an oral warning to Marc Norton on June 23; by issuing a written warning to 20
Marc Norton on August 31; and by terminating Marc Norton’s employment on September 30,
Respondent Frank engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
5. By extending the probationary period of the front-of-the-house employees for an 25
additional 45-day period without notifying Local 2 and providing it with an opportunity to bargain
over this change, Respondents Hotel Frank and Hotel Metropolis engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the Act.
6. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.30
Remedy
Having found that the Respondents have engaged in certain unfair labor practices, I shall
order them to cease and desist therefrom and to take certain affirmative action designed to 35
effectuate the policies of the Act.
The Respondent Frank, having discriminatorily discharged Marc Norton, must offer him
reinstatement to his former position or, if that position no longer exists, to a substantially
equivalent position without prejudice to his seniority or other rights and benefits, and make him 40
whole for any loss of earnings and other benefits. Backpay due Norton shall be computed on a
calendar quarterly basis as provided in F. W. Woolworth Co., 90 NLRB 289 (1950), with added
interest at the rate as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed Kentucky River Medical Center, 356 NLRB No. 8 (2010).
45
Respondent Frank must also expunge from its records any reference to Norton’s unlawful
oral warning on June 23, his unlawful written warning issued on August 31, and his September 30
termination, and notify him in writing that such action has been taken and that any evidence
related to these warnings and his termination will not be considered in any future personnel action
affecting him. Sterling Sugars, Inc., 261 NLRB 472 (1982). 50
Respondent Frank, having unlawfully issued written warnings to employees Souping
Huynh, Amy Lum, Dinora Medrano, and Monica Solis on or about June 29, must expunge from its
records any reference these unlawful warnings and provide each of them a notice written in the
primary language used by them in their everyday affairs stating that such action has been taken 55
JD(SF)–18–11
33
and that any evidence related to these warnings will not be considered in any future personnel 5
action affecting them. Sterling Sugars, infra.
Respondent Metropolis, having unlawfully issued written warnings to employees Julia De
Leon and Vilma Perez on or about June 29, must expunge from its records any reference their
unlawful warnings and provide each of them a notice written in the primary language used by 10
them in their everyday affairs that such action has been taken and that any evidence related to
these warnings will not be considered in any future personnel action affecting them. Sterling
Sugars, Inc., infra.
On these findings of fact and conclusions of law and on the entire record, I issue the 15
following recommended20
Order
A. The Respondent, Hotel Project Group D/B/A Hotel Frank, San Francisco, California, its 20
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for engaging in activities
on behalf of UNITE HERE! Local 2, or any other labor organization.25
(b) Prohibiting employees from wearing a UNITE HERE! Local 2 insignia at work.
(c) Photographing employees engaged in protected union activity without a reasonable
basis for anticipating misconduct by those employees or their supporters.30
(d) Disciplining employees for speaking about subjects protected by Section 7 of the
National Labor Relations Act at employee training sessions.
(e) Disciplining employees for engaging in protected activities on behalf of UNITE HERE! 35
Local 2, or any other labor organization, or for engaging in lawful, concerted protests about
existing terms and conditions of employment.
(f) Unilaterally increasing employees’ probationary period, or changing other material
terms and conditions of employment, without first providing notice of such a change to UNITE 40
HERE! Local 2, and providing it with an opportunity to bargain concerning the proposed change.
(g) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
45
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Marc Norton full reinstatement
to his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.50

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD(SF)–18–11
34
5
(b) Make Marc Norton whole with interest for any loss of earnings and benefits suffered as
a result of its discrimination against him as specified in the remedy section of this decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference
to Marc Norton’s oral warning of June 23, written warning of August 31, and his termination on 10
September 30, and within 3 days thereafter notify him in writing that this has been done and that
these actions will not be used against him in any way.
(d) Within 14 days from the date of the Board’s Order, remove from its files any reference
to the June 29 written warnings issued to Souping Huynh, Amy Lum, Dinora Medrano, and 15
Monica Solis on or about June 29, and within 3 days thereafter provide each of them with a
written notice in the primary language they use in their everyday affairs that this has been done
and that this action will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional 20
Director may allow upon a showing of good cause, 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.
25
(f) Within 14 days after service by the Region, post at its facility in San Francisco,
California, copies of the attached notice marked “Appendix A.”21 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent Frank and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are 30
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent Frank to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of 35
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since June 23, 2010.
40
IT IS FURTHER ORDERED that the complaint as to Respondent Hotel Frank is dismissed
insofar as it alleges violations of the Act not specifically found.
On these findings of fact and conclusions of law and on the entire record, I also issue the
following recommended2245

21 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD(SF)–18–11
35
5
Order
B. The Respondent, Hotel Project Group D/B/A Hotel Metropolis, San Francisco,
California, its officers, agents, successors, and assigns, shall
10
1. Cease and desist from
(a) Disciplining employees for lawful, concerted protests about their terms and conditions
of employment.
15
(b) Unilaterally increasing employees’ probationary period, or changing other material
terms and conditions of employment, without first providing notice of such a change to UNITE
HERE! Local 2, and providing it with an opportunity to bargain concerning the proposed change.
(c) In any like or related manner interfering with, restraining, or coercing employees in the 20
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, remove from its files any reference 25
to the June 29 written warnings issued to Julia De Leon and Vilma Perez and, within 3 days
thereafter, provide each of them with a written notice in the primary language they use in their
everyday affairs that this has been done and that this action will not be used against them in any
way.
30
(b) Within 14 days after service by the Region, post at its facility in San Francisco,
California, copies of the attached notice marked “Appendix B.”23 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent Hotel Metropolis and maintained
for 60 consecutive days in conspicuous places including all places where notices to employees 35
are customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent Frank to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of 40
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since June 29, 2010.
45

23 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
JD(SF)–18–11
36
Dated, Washington, D.C. July 6, 20115

William L. Schmidt
Administrative Law Judge10
37
APPENDIX A5
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government10
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO15
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.20
WE WILL NOT discharge or otherwise discriminate against any employee for supporting UNITE
HERE! Local 2, or any other labor organization.
WE WILL NOT prohibit employees from wearing a UNITE HERE! Local 2 insignia.25
WE WILL NOT photograph employees engaged in protected union activity without reasonable
basis for anticipating misconduct by the employees or their supporters.
WE WILL NOT discipline employees for speaking about subjects protected by Section 7 of the 30
National Labor Relations Act at training meetings
WE WILL NOT discipline employees for engaging in protected activities on behalf of UNITE
HERE! Local 2 or any other labor organization
35
WE WILL NOT discipline employees for engaging in lawful, concerted activities to protest existing
terms and conditions of employment, including the room cleaning requirements.
WE WILL NOT change our established employee probationary period, or other material terms
and conditions of employment, without first providing notice to UNITE HERE! Local 2 and 40
providing that union with an opportunity to bargain concerning any proposed change.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
45
WE WILL offer Marc Norton full reinstatement to his former job without prejudice to his seniority
or any other rights or privileges he previously enjoyed.
WE WILL make Marc Norton whole for any loss of earnings and other benefits suffered as a
result of our discrimination against him together with interest as provided by law.50
WE WILL remove from our files any reference to Marc Norton’s unlawful oral warning of June 23,
2010, unlawful written warning of August 31, 2010, and his unlawful termination on September
30, 2010, and, within 3 days thereafter, notify him in writing that this has been done and that
these actions will not be used against him in any way. 55
38
5
WE WILL remove from our files any reference to the unlawful written warnings issued to Souping
Huynh, Amy Lum, Dinora Medrano, and Monica Solis on June 29, 2010, and, within 3 days
thereafter, provide each of them a notice written in the primary language used by them in their
everyday affairs that this has been done and that this action will not be used against them in any
way.10
HOTEL PROJECT GROUP D/B/A HOTEL FRANK
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the 15
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.20
415-356-5130.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S25
COMPLIANCE OFFICER, 415-356-5139.
39
APPENDIX B5
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government10
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO15
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.20
WE WILL NOT discipline employees for engaging in lawful, concerted activities in protest of
existing terms and conditions of employment, including the room cleaning requirements.
WE WILL NOT unilaterally change our employees’ probationary period, or other material terms 25
and conditions of employment, without first providing notice to UNITE HERE! Local 2 and an
opportunity for it to bargain concerning any proposed change.
WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.30
WE WILL from our files any reference to the unlawful written warnings issued to Julia De Leon
and Vilma Perez on or about June 29, 2010, and provide each of them a notice written in the
primary language used by them in their everyday affairs that this has been done and that this
action will not be used against them in any way.35
HOTEL PROJECT GROUP
D/B/A HOTEL METROPOLIS
(Employer)
Dated By
(Representative) (Title)
40
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor 5
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 40010
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE15
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 415-356-5139