Inn at Fox Hollow

National Labor Relations Board - Board Decisions

Aug 22, 2008

352 N.L.R.B. 1072 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 127
1072
Woodbury Partners, LLC d/b/a The Inn at Fox Hol-
low and Ana Hernandez and Berta Luz Garcia.
Cases 29–CA–28122, 29–CA–28164, and 29–CA–
28235
August 22, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On December 5, 2007, Administrative Law Judge
Howard Edelman issued the attached decision and, on
December 31, 2007, he issued an erratum modifying the
notice. The Respondent, the General Counsel, and the
Charging Parties each filed exceptions and supporting
briefs, and the Respondent and the Charging Parties filed
answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order.2

1 We correct the following factual errors in the judge’s decision: (1)
although the judge correctly found that the August 17, 2007 picketing
“took place on the sidewalk on the opposite side of Respondent’s facil-
ity,” the record demonstrates that the picketers also crossed the street at
times and picketed on the public sidewalk directly in front of the Re-
spondent’s facility; (2) the Respondent informed its employees of Su-
pervisor Alicia Arvelo’s discharge at a group meeting held on about
October 20, 2006, not “sometime after November 7,” as found by the
judge; and (3) the Respondent’s fourth written warning to employee
Berta Luz Garcia is dated February 6, 2007, not February 6, 2006, as
found by the judge.
The General Counsel, the Charging Parties, and the Respondent
have excepted to some of the judge’s credibility findings. The Board’s
established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
The judge recommended a broad Order requiring the Respondent to
cease and desist from violating the Act “in any other manner.” We find
that a broad order is not warranted and substitute a narrow order requir-
ing the Respondent to cease and desist from violating the Act “in any
like or related manner.” See Hickmott Foods, 242 NLRB 1357 (1979).
Because the record indicates that many of the Respondent’s employ-
ees do not speak English fluently, we shall order the Respondent to post
the notice to employees in both English and Spanish. North Hills Of-
fice Services, 346 NLRB 1099 fn. 4 (2006).
The judge found that the Respondent violated Section
8(a)(1) of the Act by photographing employees while
they were engaged in lawful picketing. He dismissed the
consolidated complaint allegations that the Respondent
violated Section 8(a)(1) by:
(1) threatening employees with loss of employment
and hotel closure if they supported Local 1102, Retail,
Wholesale and Department Store Union, United Food
and Commercial Workers (the Union); (2) making state-
ments indicating that support for the Union would be
futile; and (3) discharging employee Berta Luz Garcia.
The judge did not address the consolidated complaint
allegation that the Respondent violated Section 8(a)(1)
and (3) by discharging Supervisor Alicia Arvelo.
For the reasons explained below, we remand to the
judge the Arvelo discharge allegation, and we reverse the
judge and find that the Respondent unlawfully dis-
charged Garcia. We otherwise adopt the judge’s findings
with certain modifications, as set forth below.3
1. Arvelo’s discharge. The consolidated complaint al-
leged that the Respondent violated Section 8(a)(1) and
(3) of the Act by discharging Supervisor Alicia Arvelo in
order to induce employees to abandon their support of
the Union. The judge failed to address this allegation
and the General Counsel excepted to the judge’s failure
to do so. We find merit in the General Counsel’s excep-
tion.
The Respondent operates a hotel in Woodbury, New
York. In the summer of 2006,4 the Respondent’s house-
keeping employees, most of whom do not speak English
fluently, sought assistance from the Workplace Project, a
nonprofit organization that provides low cost or pro bono
legal representation to immigrant workers, regarding
complaints about the quality of supervision and working
conditions at the hotel. With the help of the Workplace
Project, the employees drafted a letter to the Respondent
outlining their complaints. The letter stated that the re-
cent increase in the number of rooms the employees were
required to clean each day from 13 to 14 made it difficult
to maintain the expected level of quality. The letter also

3 We agree with the judge, for the reasons he stated, that the Re-
spondent violated Sec. 8(a)(1) by photographing employees while they
were engaged in lawful picketing. In adopting this finding, we reject
the Respondent’s argument that its photographing was justified to pro-
tect Arvelo and her vehicle as she left the hotel. The record establishes
that the picketing was entirely peaceful and nonviolent, and General
Manager Franklin Manchester testified that Arvelo remained inside the
hotel while he took the photographs, and that she did not depart until
after the picketers had dispersed.
We also agree with the judge, for the reasons he stated, that the Re-
spondent did not violate Sec. 8(a)(1) by allegedly threatening employ-
ees with loss of employment and closure of the hotel if they supported
the Union.
4 All dates are in 2006, unless otherwise indicated.
INN AT FOX HOLLOW 1073
stated that Arvelo, who was the employees’ immediate
supervisor, threatened them with discharge “using ex-
tremely vulgar and offensive” language if they failed to
clean the required number of rooms. It concluded, “We
would like to have a meeting with you as soon as possi-
ble, with all of us present, to discuss this situation.” The
employees mailed the letter to General Manager Franklin
Manchester on about July 20.
Manchester testified that on receipt of the letter he
immediately interviewed Arvelo and the housekeeping
inspectresses. However, the Respondent did not take any
action against Arvelo or arrange the requested meeting
with the housekeeping employees.
On August 17, the employees peacefully picketed on
the public sidewalks near the Respondent’s facility after
working hours. They carried signs and chanted “no more
unjust firings, no more disrespect and no more Alicia
Arvelo.”
On October 3, the Union filed a petition for an elec-
tion. On about October 6, at a management-initiated
meeting with employees, Owner Anthony Scotto an-
nounced that he had heard the employees were trying to
bring in a union and asked why they felt that was neces-
sary. Employee Berta Luz Garcia responded that the
employees contacted the Union because Arvelo was mis-
treating them. Scotto then said that the Respondent was
investigating the employees’ complaints about Arvelo
and that it could not discharge her without proof of mis-
conduct. He also said that he was going to give her “an-
other opportunity.”
At another group meeting on about October 20, Scotto
announced, “Well, I have done something for you. I let
go of Alicia Arvelo, now I want you to help me. I do not
want a union here.”
On October 24, Garcia informed the Union that the
employees had decided to stay the petition. The Union
withdrew the petition on November 7.
The Respondent denies that it discharged Arvelo in or-
der to induce employees to abandon their support of the
Union. It asserts that it initiated an investigation on re-
ceipt of the July 20 letter; the investigation revealed nu-
merous instances in which Arvelo made vulgar and in-
sulting comments to the housekeeping employees; and
that it would have discharged Arvelo even in the absence
of the union campaign.
The Board has long held that an employer violates
Section 8(a)(1) where it discharges an unpopular super-
visor in order to influence its employees’ choice in an
election.5 Such a discharge is viewed as the conferral of

5 See, e.g., Burlington Times, Inc., 328 NLRB 750, 750–751 (1999)
(employer violated Sec. 8(a)(1) by forcing the resignation of a supervi-
a benefit, and the circumstances may support an infer-
ence that the benefit is for the purpose of interfering with
or coercing employees in their choice of representative.
An employer may rebut this inference, however, by es-
tablishing an explanation other than the pending election.
Stanadyne Automotive Corp., 345 NLRB 85, 91 (2005),
affd. in relevant part 520 F.3d 192 (2d Cir. 2008); Hono-
lulu Sporting Goods Co., 239 NLRB 1277, 1280 (1979).
“Similarly, an employer cannot time the announcement
of [a] benefit in order to discourage union support, and
the Board may separately scrutinize the timing of [a]
benefit announcement to determine its lawfulness.”
Stanadyne, supra, quoting Mercy Hospital Mercy South-
west Hospital, 338 NLRB 545, 545 (2002). The standard
for determining whether the announcement of a benefit
during the critical period is unlawful is the same as the
standard for determining whether the grant of the benefit
itself violates the Act. Thus, the Board will infer that an
announcement of benefits during the critical period is
motivated by an intent to influence the employees’
choice in the election. However, an employer may rebut
the inference by demonstrating a legitimate business rea-
son for the timing of the announcement. Stanadyne, su-
pra; Mercy Hospital, supra.
As indicated above, although the issue was clearly al-
leged in the consolidated complaint and fully litigated at
the hearing, the judge failed to determine whether the
Respondent violated the Act by discharging Arvelo.
Accordingly, we shall sever and remand this allegation to
the judge for further consideration.
On remand, the judge shall apply the standard set forth
above and determine, on the existing record,6 whether the
Respondent violated Section 8(a)(1) and (3) of the Act
by timing Arvelo’s discharge or the announcement of her
discharge to interfere with or coerce its employees in
their choice of representative. In making this determina-
tion, the judge may be required to resolve credibility is-
sues that were not addressed in his previous decision.
2. Threat of futility. We affirm the judge’s dismissal
of the consolidated complaint allegation that the Respon-
dent violated Section 8(a)(1) by threatening employees
that unionization would be futile. However, we do not
rely on the judge’s rationale.
The judge found that the General Counsel was relying
on testimony pertaining to Scotto’s announcement of
Arvelo’s discharge to establish the violation. He con-
cluded that the testimony did not establish a threat of
futility, and dismissed the allegation on that basis.

sor about whom employees complained, for the calculated purpose of
influencing the election); Ann Lee Sportswear, Inc., 220 NLRB 982
(1975) (same), enfd. 543 F.2d 739 (10th Cir. 1976).
6 The judge may not reopen the record to take additional evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1074
The General Counsel excepts, arguing that the judge
erred by failing to consider unrebutted testimony that
establishes the futility threat.7
Inspectress Anna Hernandez testified that, at a man-
agement-initiated meeting sometime in October, Scotto
told employees:
[The Union] can guarantee neither your job nor your
money, nor your pay. It’s not a guarantee, it’s just a
blank piece of paper. The only thing that the Union
will do is take away your money from you. There is no
guarantee.8
We agree that the judge erred by not considering this
testimony. Nevertheless, for the reasons that follow, we
affirm the judge’s dismissal of the allegation.
The Board has held that statements that bargaining will
start from a blank sheet of paper or from zero violate
Section 8(a)(1), if, in context, they would reasonably
lead employees to believe that their current benefits will
be lost or reduced and can only be regained through ne-
gotiations with the employer.9
In the present case, Scotto’s statements did not rea-
sonably imply that employees would suffer a loss of
benefits or a reduction in wages if they voted for the Un-
ion. Rather, his remarks, in context, would clearly be
understood to mean that the Union’s “guarantee” was no
better than a blank piece of paper and that the Union
cannot guarantee improvements in wages or benefits.
Such statements are legitimate campaign propaganda.
See, e.g., Riley-Beaird, Inc., 271 NLRB 155 (1984) (ab-
sent threat to reduce existing benefits, employer’s re-

7 The Charging Parties except to the judge’s failure to find an unlaw-
ful threat of futility based on Scotto’s announcement of Arvelo’s dis-
charge. However, that theory was not specifically alleged or litigated.
Further, the fact that the General Counsel has not excepted to the
judge’s failure to find the violation on the basis of that testimony sup-
ports the view that he did not intend to proceed on that theory. The
General Counsel controls the complaint, and the Charging Parties can-
not enlarge upon or change the General Counsel’s theory of the case.
See, e.g., Smoke House Restaurant, 347 NLRB 192, 195 (2006).
8 Two other employees testified, in less detail, about Scotto’s re-
marks. Garcia testified that Scotto said:
The Union is just paper. It’s doesn’t–it’s not worth anything.
They’re just going to take away your money, and you are okay
with me.
Anna Torrez testified:
He said that the union, the union was, was, it was like a blank
piece of paper. . . . He said basically the union didn’t have any
benefits for us.
9 See, e.g., BP Amoco Chemical-Chocolate Bayou, 351 NLRB 614,
618 fn. 22 (2007) (statement that bargaining would start from a “blank
page” was unlawful in context of employer flyers implying that the
forfeiture of a customary wage increase was a “lawful and ineluctable
consequence” of bargaining); Lear-Siegler Management Service, 306
NLRB 393 (1992).
marks comparing union to a “blank piece of paper” con-
stituted “permissible partisan propaganda protected by
Section 8(c)”). Consequently, we find that Scotto’s
statements did not violate Section 8(a)(1).10
3. Garcia’s discharge. Finally, for reasons explained
below, we reverse the judge’s dismissal of the consoli-
dated complaint allegation that the Respondent violated
Section 8(a)(1) by discharging Berta Luz Garcia.
Garcia was the principal catalyst behind the July 20
letter to Manchester and the employees’ decision to con-
tact the Union. She was also very vocal during group
meetings with Scotto, acting as the chief spokesperson
for employees regarding their complaints about mis-
treatment by supervisors and the increase in the number
of rooms the employees were required to clean.
The consolidated complaint alleges that “on February
6, 2007, the Respondent held a group meeting with
housekeeping employees, including [Berta] Luz Garcia,
to discuss their work related complaints concerning
housekeeping inspector Delmi Nolasco,” and that the
Respondent discharged Garcia because she “participated
with other employees in making concerted complaints
about working conditions at the meeting . . . and because
she engaged in other protected concerted activities.”
The Respondent claims that Garcia was discharged
pursuant to its progressive disciplinary system after she
received four written warnings. In support, the Respon-
dent introduced into the record warnings dated October
25 and 28, December 5, and February 6, 2007.
The judge found that the General Counsel met his ini-
tial Wright Line11 burden of establishing that protected
conduct was a “motivating factor” in the Respondent’s
decision to discharge Garcia. However, he further found

10 In exceptions, the Charging Parties contend that the General
Counsel failed to introduce documentary evidence establishing that the
Respondent threatened and coerced employees in violation of Sec.
8(a)(1). In support, the Charging Parties submitted what they contend
are campaign flyers distributed by the Respondent. Although no party
has filed a motion to strike, we have not considered the documents
because they are not a part of the record, and the Charging Parties have
not moved to reopen the record. Moreover, even if we were to construe
the Charging Parties’ exception as a motion to reopen the record, we
would deny the motion on the ground that the Charging Parties have
failed to show that the documents in question are newly discovered and
previously unavailable. See Transit Management of Southeast Louisi-
ana, 331 NLRB 248 fn. 2 (2000); Sec. 102.48(d)(1) of the Board’s
Rules and Regulations.
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel
must prove that protected activity was a substantial or motivating factor
in the employment action. If the General Counsel makes the required
initial showing, the burden then shifts to the employer to prove by a
preponderance of the evidence that it would have taken the same action
even in the absence of the protected activity. See Manno Electric, 321
NLRB 278, 280 fn. 12 (1996), affd. 127 F.3d 34 (5th Cir. 1997).
INN AT FOX HOLLOW 1075
that the Respondent established that it would have made
the same decision to discharge Garcia, even in the ab-
sence of her protected conduct. In essence, the judge
found that the Respondent would have discharged Garcia
pursuant to its progressive disciplinary system for having
accumulated four written warnings, even if she had not
engaged in protected conduct. The judge discredited
Garcia’s testimony that she never received the warnings,
because he found it “hard to believe that the records were
fabricated” for the trial.
The Respondent has not excepted to the judge’s find-
ing that the General Counsel satisfied his initial burden
to show that Garcia’s protected conduct was a motivating
factor in her discharge.12 Accordingly, the focus of our
inquiry is whether the Respondent sustained its burden of
proving that it would have discharged Garcia even in the
absence of her protected conduct. For the reasons ex-
plained below, we find that it did not.
Even assuming, as found by the judge, that Garcia was
discharged pursuant to the Respondent’s progressive
disciplinary system because she had accumulated four
written warnings, the preponderance of the evidence es-
tablishes that the final warning and discharge on Febru-
ary 6 were unlawfully motivated. Although not dis-
cussed by the judge in his decision, Garcia testified that
on February 6 she told Manchester that her coworkers
had asked her to request a meeting with him to discuss
their concerns about Supervisor Nolasco. She reminded
Manchester that “when the Union wanted to enter,”
Scotto promised that the employees could go to man-
agement “to fix any problem that may occur.”
Manchester asked Garcia to name the coworkers. He
summoned three of them and asked if it was true that
they were having problems with Nolasco. The first em-
ployee responded, “Yes, she yelled at me.” The second
responded, “She speaks to us very bad, treats us bad.”
The third responded that Nolasco “does not let us work
in peace.”
After Manchester finished speaking with the third em-
ployee, admitted Supervisor Maria Garcia (no relation),
who was translating during the meeting, told Garcia that
she was discharged, stating:

12 Although the Respondent argues in its answering brief that the
General Counsel failed to carry his initial Wright Line burden, the
Board’s Rules and Regulations do not permit a party to assert cross-
exceptions in an answering brief. See Bohemian Club, 351 NLRB
1065, 1066 fn. 6 (2007); White Electrical Construction Co., 345 NLRB
1095, 1096 (2005). Accordingly, the Respondent has waived the ar-
gument that the General Counsel failed to make an initial showing that
protected conduct was a motivating factor in its decision to discharge
Garcia.
Manchester is saying that he has come to the decision
to let you go because instead of helping and working,
you are against your coworker in the hotel. And people
like you we do not need at this workplace. And I no-
ticed that [instead of] putting out the fire, you raise it up
and make it stronger. Before, . . . the problem was with
Alicia Arvelo. And now I see that the problem is with
Delmi Nolasco.
(Berta Luz) Garcia gave the only testimony regarding the
February 6 meeting. Although the judge did not make spe-
cific factual findings or credibility resolutions regarding the
meeting, he stated that he was “impressed with [Garcia’s]
overall demeanor,” and he concluded that “she is a credible
witness with the sole exception of her denial of Respon-
dent’s written warnings to her.”
The Respondent did not question Manchester or any of
its witnesses about the February 6 meeting. Nor did the
Respondent mention the meeting in its answering brief,
despite the fact that it is clearly the centerpiece of the
General Counsel’s discharge case.13 The only evidence
adduced by the Respondent to explain Garcia’s discharge
are the written warnings and Manchester’s testimony that
Garcia was discharged for “not following hotel proce-
dures and standard operating procedures, being insubor-
dinate, and being in places which she was not supposed
to be.” Manchester further testified that Garcia had been
warned several times for similar behavior and she did not
seem to heed the warnings.
In our view, the warnings and Manchester’s testimony,
which conspicuously avoided the specific events leading
to Garcia’s final warning and discharge, are insufficient
to rebut the strong inference of unlawful motivation.
This inference is created by the timing of Garcia’s dis-
charge and the statements of Manchester and Maria Gar-
cia at the February 6 meeting, which directly link Gar-
cia’s discharge with her protected conduct. In these cir-
cumstances, we find that the Respondent has failed to
show by a preponderance of the evidence that it would
have discharged Garcia even in the absence of her pro-
tected conduct. Accordingly, we reverse the judge and
find that the discharge violated Section 8(a)(1).14

13 As noted above, the consolidated complaint specifically alleges
that the Respondent unlawfully discharged Garcia because she “partici-
pated with other employees in making concerted complaints about
working conditions” at the February 6 meeting.
14 In view of our finding that Manchester’s testimony and the written
warnings are insufficient to rebut the General Counsel’s strong prima
facia case, we find it unnecessary to pass on the General Counsel’s and
the Charging Parties’ exceptions to the judge’s credibility resolution
regarding Garcia’s denial that she ever received the written warnings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1076
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(1) by
discharging Berta Luz Garcia because she engaged in
protected concerted activity, we shall order the Respon-
dent to offer her full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights and privileges previously enjoyed, and to make her
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).15 The Respondent shall also be required to re-
move from its files any and all references to the unlawful
discharge of Garcia, and to notify her in writing that this
has been done and that the discharge will not be used
against her in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Woodbury Partners, LLC d/b/a The Inn at
Fox Hollow, Woodbury, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Placing employees under surveillance by photo-
graphing without justification their lawful picketing or
other protected concerted activities.
(b) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activities, or to discourage employees from engaging in
such activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of 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 this Order, offer
Berta Luz Garcia full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent

15 In the consolidated complaint, the General Counsel requests that
interest on any money owed Garcia be computed on a compounded
quarterly basis. The General Counsel does not further explain or pro-
vide argument in support of this request. Having duly considered the
matter, we are not prepared at this time to deviate from our current
practice of assessing simple interest. See, e.g., Tech Valley Printing,
Inc., 352 NLRB No. 81, slip op. at 3 fn. 5 (2008); Rogers Corp., 344
NLRB 504, 504 (2005).
position without prejudice to her seniority or any other
rights and privileges she previously enjoyed.
(b) Make Berta Luz Garcia whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, in the manner set forth in the
amended remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the unlawful discharge of
Berta Luz Garcia and, within 3 days thereafter, notify her
in writing that this has been done and that the discharge
will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated 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, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at
its Woodbury, New York facility, copies of the attached
notice marked “Appendix”16 in both English and Span-
ish. Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since August 17, 2006.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint allegation that the Respondent violated Section
8(a)(1) and (3) of the Act by discharging Supervisor
Alicia Arvelo in order to induce employees to abandon
their support of the Union is severed from this case and

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
INN AT FOX HOLLOW 1077
remanded to the administrative law judge for the purpose
described above.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare a supplemental decision setting forth
credibility resolutions, findings of fact, conclusions of
law, and a recommended Order, as appropriate on re-
mand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT, without justification, place you under
surveillance by photographing you while you are en-
gaged in lawful picketing or other protected concerted
activities.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in protected concerted
activities, or to discourage you from engaging in such
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Berta Luz Garcia full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Berta Luz Garcia whole for any loss of
earnings and other benefits suffered as a result of our
discrimination against her, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful discharge of Berta Luz Garcia, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the discharge will not be used
against her in any way.
WOODBURY PARTNERS, LLC D/B/A
THE INN AT FOX HOLLOW
Kevin Kitchen, Esq., for the General Counsel.
Jeffrey Meyer, Esq. (Kaufman, Dolowich & Voluck, LLP), for
the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried on September 25 and 26, 2007, in Brooklyn, New
York, based on charges filed by Ana Hernandez, in Case 29–
CA–28122 on January 16, 2007, and in Cases 29–CA–28164
and 29–CA–28235 by Berta Luz Garcia on February 7 and
March 29, 2007, respectively. Thereafter, a consolidated com-
plaint issued on June 29, 2007, against Woodbury Partners,
LLC d/b/a The Inn At Fox Hollow (Respondent).
On the entire record, including my observations of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
It is admitted that at all times material Respondent is a do-
mestic corporation, with its principal office and place of busi-
ness located at 7755 Jericho Turnpike, Woodbury, New York
11797 (the Fox Hollow facility), and has been engaged in the
operation of a hotel providing hospitality services to the general
public.
During the past year, which period is representative of its
annual operations generally, Respondent, in the course and
conduct of its business operations described above, derived
gross annual revenues in excess of $500,000 from the operation
of the Fox Hollow facility; and purchased and received at the
Fox Hollow facility products, goods, and materials valued in
excess of $5000 directly from firms located outside the State of
New York.
Respondent admits it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent also admits that at all material times Local 1102
Retail, Wholesale and Department Store Union, United Food
and Commercial Workers (the Union) has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
Respondent further admits that at all times material the fol-
lowing individuals have held the positions set forth opposite
their respective names and have been supervisors of Respon-
dent within the meaning of Section 2(11) of the Act and/or
agents thereof, acting on its behalf:
Anthony Scotto Co-Owner
Franklin Manchester Manager
Alicia Arvelo Housekeeping Supervisor (until
November 2006)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1078
Maria Garcia Housekeeping Supervisor (since
November 2006
Delmi Nolasco Housekeeping Inspectress
Sometime during the spring and summer of 2006, the house-
keeping employees, led by Luz Garcia, complained among
themselves about their supervisor, Alicia Arvelo. General
Counsel witnesses Luz Garcia, Ana Hernandez, Maria Ayala,
and Ana Torres credibly testified that Arvelo frequently com-
plained about the employee work ethic and told them “to take a
stick and shove it up her ass.” Other times “she told them to
use condoms so that they could work harder and not have chil-
dren.” She made these statements individually and in groups. In
addition the employees complained about having to clean 14
rooms rather then the 13 rooms they usually cleaned.
Somewhere around June, the employees, led by Garcia,
sought help by contacting the Workplace Project, an organiza-
tion to help employees. The Workplace Project is admittedly
not a union, as defined in Section 2(5) of the Act. Sometime in
early July a group of employees met with Jaime Vargas, a rep-
resentative of the Workplace and discussed their complaints.
On or about July 20, Vargas sent a letter to Respondent describ-
ing the working conditions and the specific complaints con-
cerning Arvelo as set forth in the paragraph above.
Thereafter, led by Garcia, the employees contacted Local
1102, Retail, Wholesale, Department Store Union (the Union).
On October 3, 2006, the Union filed a petition to represent the
housekeeping staff. Thereafter, the employees lost interest and
the Union withdrew its petition on November 7, 2006.
On August 17, 2007, not having taken any action concerning
Arvelo’s conduct, employees picketed Respondent after their
work shift with signs concerning these complaints. Garcia was
instrumental in leading the preceding. The picketing took place
on the sidewalk on the opposite side of Respondent’s facility.
At this time, Arvelo was leaving work in her automobile and
saw the pickets who were shouting her name in anger. There is
no evidence that the pickets tried to block her way or damage
her vehicle. Based on the credible testimony of Garcia, Her-
nandez, Ayala, and Torres, I conclude that she could have con-
tinued on her way home safely. However, Arvelo then returned
to Respondent’s facility and told Franklin Manchester, manager
of Respondent, that she was frightened and afraid to go home.
Manchester testified that the potential for misconduct was
probable, and justified taking pictures of the pickets. When he
took his pictures, the pickets were still on the sidewalk on the
opposite Respondent’s facility. Arvelo did not testify during
this trial. Under these circumstances, I conclude that there was
no reasonable belief by Manchester that Arvelo was in any
danger.
In National Steel & Shipbuilding Co., 324 NLRB 499
(1997), the judge correctly observed that the fundamental prin-
ciples governing employer surveillance of protected employee
activity are set forth in F. W. Woolworth Co., 310 NLRB 1197
(1993). The Board in Woolworth affirmed the principle that an
employer’s mere observation of open, public union activity on
or near its property does not constitute unlawful surveillance.
Photographing and videotaping such activity clearly constitutes
more than mere observation because such pictorial recordkeep-
ing tends to create fear among employees of future reprisals.
The Board in Woodworth reaffirmed the principle that photo-
graphing in the mere belief that something might happen does
not justify the employer’s conduct when balanced against the
tendency of that conduct to interfere with employees’ right to
engage in concerted activity. Id., Flambeau Plastics Corp., 167
NLRB 735, 743 (1967), enfd. 401 F.2d 128 (7th Cir. 1968),
cert. denied 393 U.S. 1019 (1969). Rather, the Board requires
an employer engaging in such photographing or videotaping to
demonstrate that it had a reasonable basis to have anticipated
misconduct by the employees. “[T]he Board may properly
require a company to provide a solid justification for its resort
to anticipatory photographing.” NLRB v. Colonial Haven Nurs-
ing Home, 542 F.2d 691, 701 (7th Cir. 1976). The inquiry is
whether the photographing or videotaping has a reasonable
tendency to interfere with protected activity under the circum-
stances in each case. Sunbelt Mfg., Inc., 308 NLRB 780 fn. 3
(1992), affd. in part 996 F.2d 305 (5th Cir. 1993). In the instant
case, I find photographing the pickets had a reasonable ten-
dency to interfere with the employees picketing.
Accordingly, I conclude that Respondent violated Section
8(a)(1) of the Act.
The complaint further alleges three 8(a)(1) violations as set
forth below.
On October 13, 2006, at a meeting with employees at the
Fox Hollow facility, Respondent, by its agent Scotto:
(a) Threatened employees with discharge if they continued to
give support and assistance to the Union.
(b) Threatened employees with plant closure if they contin-
ued to give support or assistance to the Union.
(c) Informed employees that it would be futile to choose to
be represented by the Union. On or about October 20, 2006,
Respondent met with the employees. Garcia credibility testi-
fied:
Q. What was said by Mr. Scotto at this meeting?
A. Well, I have done (meaning Scotto) something for
you. I let go of Alicia Arvelo, now I want you to help me.
I do not want a Union here.
Q. What, if anything, did Mr. Scotto say?
A. Mr. Scotto said, “I promise. I promise all of you
that from this day going forward the offices of Mr. Man-
chester, and Maria Garcia who is the new director, are go-
ing to be open for any problem that may occur. Everyone
can solve their problems in that manner. “So I stood up
and said, “How can you guarantee this? What can you give
us to guarantee this, sir? You do not give us a document.
You’re not giving us anything”
And he signaled me and said to me, “I give you my
word,” he said. And I said, “As before we don’t have
money,” I said, “and our word is our honor. Our word is
our bond on many occasions. My word is honor. I swear
on my mother and God that the mistreatment and abuse
that you have endured will no longer continue. And if you
cannot resolve something with Ms. Garcia or Mr. Man-
chester, you’re directed to come and speak to me, because
INN AT FOX HOLLOW 1079
I do not want to have anymore problems at the hotel. And
I do not want any Union, okay,” and he left.1
Clearly, Garcia’s testimony does not relate to paragraph
11(a) and (b) of the complaint. It appears that General Counsel
is relying on Garcia’s testimony to establish the violation set
forth in paragraph 11(c). I find there is no evidence that it
would be futile to choose to be represented by the Union. The
General Counsel cites Gold Kist, Inc., 341 NLRB 1040, 1041
(2004).
Gold Kist states as follows:
It is a violation of Section 8(a)(1) of the Act for an
employer to warn employees that there will be strikes and
violence if they choose to be represented by a union.
Garry Mfg. Co., 242 NLRB 539, 542 (1979), enfd. 630
F.2d 934 (3d Cir. 1980). There, in a flyer entitled “It
Could Happen Here,” the employer unlawfully warned the
employees about strikes and strike violence if the union
won election. Specifically, the flyer listed several in-
stances of violence as reported in local newspapers and
warned the employees: “If you want the threat of strikes
and violence and constant turmoil in our plant, vote for
District 65.” In Grove Valve & Regulator Co., 262 NLRB
285 (1982), the employer violated Section 8(a)(1) by
warning its employees that strikes were inevitable. Spe-
cifically, the employer told the employees that it thought
that the risk of a strike and job loss, or plant re-location,
was especially real because the employer’s wages and
benefits were already so good.
In these cases, the employer clearly created a reasonable im-
pression in the minds of its employees that if they elected to be
represented by the union a strike was inevitable, and that it was
likely to be a violent one. Indeed, Crawford expressly told the
employees that a strike was the union’s only weapon to win the
respondent’s agreement to the union’s proposals, and that such
a strike was likely to be violent.
I find that Garcia’s testimony does not establish the futility
as described in paragraph 11(c). Accordingly, I find no viola-
tion as alleged in paragraph 11(c) of the complaint.
Paragraph 11(a) of the complaint alleges Respondent’s
threats to discharge employees. Paragraph 11(b) alleges a
threat to close the shop if the employees engaged union activi-
ties.
In support of this allegation Ana Torres testified, pursuant to
leading questions by General Counsel:
BY MR. KITCHEN:
Q. MS. TORRES, during this meeting, do you recall if
Scotto said anything about closing the hotel?
Q. What did he say?

1 I credit Garcia’s testimony. Garcia testified in great detail concern-
ing this meeting. Her direct testimony is consistent with Respondent’s
cross-examination. Moreover, her entire testimony was detailed and
consistent with Respondent’s cross-examination. I was impressed with
her overall demeanor, and conclude that she is a credible witness with
the sole exception of her denial of Respondent’s written warnings to
her.
A. He said that if, that if a union entered there, and he
could close the hotel at any hour he wants. Because he
was the owner. And with him, nobody could tell him what
to do.
I do not credit Torres’ testimony. Her entire testimony was
established through leading questions by General Counsel. As
set forth below, I found Garcia to be a credible witness, with
the exception of her discharge, as described below. Given her
credibly, I find that had there been a threat to close the shop,
Garcia would have testified to such threat. Moreover, Ana
Hernandez and Maria Ayala, also a credible witness did not
testify as to a threat to close the hotel. Accordingly I find no
evidence to establish a threat to close the shop, and accordingly
find no violation of Section 8(a)(1) of the Act.
I also find that there was absolutely no testimony in the re-
cord as to threatening employees with discharge because of
their Union or concerted activities. Therefore I find there was
no violation of Section 8(a)(1) as alleged in the complaint.
The complaint alleges that Luz Garcia was discharged be-
cause of her union and/or concerted activities.
In order to establish a prima facie violation of Section
8(a)(3), it must be established that the employee was engaged
in union activity, that the Employer had knowledge of such
activity, that the Employer exhibited animus or hostility toward
said activity, and that the employee’s protected activity was a
“motivating factor” in the Employer’s decision to take adverse
action against the employee. Wright Line, 251 NLRB 1083
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
The evidence establishes that Garcia was the most active
employee complaining about Arvelo’s conduct during the
course of four employee/employer meetings. She was a leader
in the picketing on August 17 to force Respondent to discharge
Arvelo. I have concluded Respondent’s supervisor, Manchester
violated Section 8(a)(1) of the Act by taking photographs of the
picketers. I conclude by such conduct that General Counsel has
met his Wright Line burden.
Once the General Counsel has established a prima facie case,
the burden shifts to the Respondent to show that the same ac-
tion would have taken place even in the absence of protected
conduct. Wright Line, supra. This burden cannot be satisfied
by a mere statement or demonstration of a legitimate reason for
the action taken. Rather, Respondent must persuade by a pre-
ponderance of the credible evidence that it would have taken
the same action in the absence of the protected conduct. T & J
Trucking Co., 316 NLRB 771 (1995).
Respondent placed into evidence four separate warnings be-
tween February 6 and December 6, 2007, alleging insubordina-
tion, substandard work, uncooperative attitude, violation of
Company’s policies, rudeness to employees and failure to fol-
low instructions. Garcia testified that she never saw or received
copies of these warnings.
In Nu-Skin International, Inc., 320 NLRB 385, 400 (l995),
the Board affirming the administrative law judge’s decision
held that, “Cook claimed that prior to being discharged on Au-
gust 23 he had never been given a warning for being late. He
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1080
denies receiving the written warning on July 30 and denies that
the signature on the warning is his. I find Cook’s denial of the
July 30 written warning hard to believe.”
While I find that Garcia was a credible witness, as described
above, I find that Manchester’s testimony that the written warn-
ings were part of its business records. While these records may
not be as definitive as payroll records, I find it hard to believe
that Respondent’s records were fabricated for this trial. Based
on Manchester’s testimony and the written warnings I find that
Respondent has established its’ Wright Line burden, and there-
fore I conclude Respondent has not violated an 8(a)(1) dis-
charge violation as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by unlaw-
fully taking photographs of a lawful employee picket line.
[Recommend Order omitted from publication.]