KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Cafe

National Labor Relations Board - Administrative Judge Opinions

Jan 27, 2017

13-CA-162485 (N.L.R.B. Jan. 27, 2017)

JD–03–17
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KHRG EMPLOYER, LLC d/b/a HOTEL
BURNHAM & ATWOOD CAFE
Respondent
and Cases 13–CA–162485
UNITE HERE, LOCAL 1, AFL–CIO
Charging Party
Andrea James, Esq.,
for the General Counsel.
Brian M. Stolzenbach, Esq., Karla Sanchez, Esq., and
Christopher W. Kelleher, Esq,
for the Respondent.
David L. Barber, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried in Chicago, Illinois,
on May 18 and 19, 2016. Unite Here Local 1, AFL–CIO (the Union), filed the charge in Case
13–CA–162485 on October 22, 2015.1 The Regional Director for Region 13 of the National
Labor Relations Board (NLRB/the Board) issued the complaint and notice of hearing on January
25, 2016. The Respondent filed a timely answer on February 9, 2016, denying all material
allegations in the complaint.
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (NLRA/the Act) when on or October 22, the Respondent discharged employee
Evan Demma for engaging in concerted protected activity.

1 All dates are in 2015, unless otherwise indicated. In addition, at the start of the hearing, the
General Counsel moved to amend the complaint to correct the name of the Respondent in the
caption and in the introductory paragraph of the complaint to read as stated in the above caption.
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2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging Party
I make the following5
FINDINGS OF FACT
I. JURISDICTION
10
The Respondent, a limited liability company, operates hotels and restaurants in Chicago,
Illinois, and other cities. The Respondent, for the past calendar year, derived gross revenue in
excess of $500,000; and purchased and received at its Chicago facility goods and services in
excess of $5000 directly from points outside the State of Illinois. Therefore, I find that at all
material times it has been an employer engaged in commerce within the meaning of Section 2(2), 15
(6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. OVERVIEW OF RESPONDENT’S OPERATION20
The Respondent, a limited liability company, operates hotels and restaurants in Chicago,
Illinois, among other cities. The hotel and restaurant at issue are the Hotel Burnham (the
Burnham) and Atwood Café (the Atwood). The Atwood is located within the Burnham which is
housed in a historical building in Chicago’s downtown business district. The public can access 25
the Atwood through the lobby of the Burnham which has an entrance on Washington Street. The
Atwood also abuts State Street and has a patio for outdoor dining in the warmer months. The
Respondent employs, among others, housekeepers and managers at the Burnham; and managers,
servers, “busboys,” food runners, and bartenders at the Atwood.
30
Damien Palladino (Palladino) has been employed by the Respondent for 8 years and is
the current general manager of the Atwood. He is responsible for overseeing its overall
operations. During the period at issue Brian Millman was the executive chef and part of the
management staff. The remaining management and administrative staff for the Burnham and the
Atwood included, among others: Hotel General Manager Tonya Scott (Scott), Atwood Manager 35
John Radosevich (Radosevich), Atwood Manager Kelly Stepto (Stepto), Sous Chef Ryan Bell
(Bell), Human Resources Director Samantha Polk (Polk), Senior Regional Director of People
and Culture for the Kimpton Group Jennifer Hayes (Hayes), Assistant Director of Finance Angel
Patterson (Patterson) and staff accountant Yuliya Shegarfi (Shegarfi).2 Although the Burnham
and the Atwood have a separate management teams overseeing their staffs (e.g., housekeepers, 40
hotel maintenance, servers), they are served by the same administrative personnel.

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for
General Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “CP” for Charging Party’s
exhibit; “GC Br.” for the General Counsel’s brief; “R. Br.” for Respondent’s brief; and “CP Br.”
for Charging Party’s brief.
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3
B. October 9, Employee Demonstration
By October 9, the Union had been engaged in a lengthy campaign to get the Respondent 5
to agree to a card-check and neutrality agreement with the Union. The Union had a committee
with about six committee members who worked on the effort and assisted in planning and
coordinating other union organizing activities. Evan Demma, a server at the Atwood and avid
union organizer, was a part of the committee and the organizing campaign. As a committee
member, Demma helped in the effort to organize the Burnham and the Atwood workers. In 10
November 2014, for example, Demma, a group of the Atwood employees, and a priest entered
the Burnham to present a petition to Scott about working conditions. In addition, from October
2014 to 2015, Demma participated in about 20 to 30 union organized demonstration in front of
the Atwood. He also joined in two union organizing protests from January to February. From
March to May, Demma increased his participation in union protests outside the Atwood to once a 15
week; and again between May and September when he joined in union protests twice a week.
For the month leading up to October 9, the union committee members had worked on
planning a demonstration to occur on October 9. On October 9, the Union’s demonstration
began about 4:30 p.m. in front of the Burnham and the Atwood with about 100 workers from 20
various employers throughout the city of Chicago. Some of the protestors held signs reading
“No Contracts – Unite Here Local 1.” One of the goals of this demonstration was to make
management aware of the working conditions and injuries suffered by the Burnham’s
housekeeping staff. In order to maintain order and not block the entrance to the hotel and
restaurant, the Union brought in marshals. One of the marshals was Rachael Brumleve25
(Brumleve), a union employee, who was responsible for ensuring that the demonstrators did not
block the public sidewalks, passageways and hotel and restaurant entrances. The demonstration
lasted approximately 2 hours.
30
C. Workers Delivery of Petition to Management on October 9
Approximately 30 minutes into the October 9 demonstration, Demma, along with his
corworker KarinaTufino (Tufino) and about 20 other demonstrators went to confront Scott by
entering the Burnham’s lobby through the public entrance facing Washington Street. Tufino, 35
Vina Arceo (Arceo), Edgar Vasquez (Vasquez), Sylverio Arrenos (Arrenos) and Victor Pariente
(Pariente) were Demma’s coworkers and part of the group of 20 demonstrators. The remaining,
approximately 12, demonstrators worked either for other Kimpton properties in Chicago or for
other unknown employers. The group’s intention was to go to Scott’s office and deliver a
petition detailing the housekeeping staff’s complaints of experiencing excessive pain while 40
performing their job duties and recommendations for reducing the injuries.
Upon entering the building, the group encountered a security guard working at the
property. He blocked their entrance and informed them that management would only allow four
employees to go downstairs to the executive offices and the employees’ only area. Demma 45
responded that all of the demonstrators with him worked for the Respondent and had a right to
JD–03–17
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deliver the petition to management. Therefore, the security guard allowed them to pass. The
group proceeded through the Burnham’s lobby, past the lobby side entrance of the Atwood, and
down a flight of stairs. The stairs opened onto an open public area of the basement with public
restrooms and several locked doors. The locked doors led to the employee locker room and
break room, the Atwood’s kitchen, mechanical room, plumbing /electrical/fire room, food and 5
beverage office, housekeeping office, and administrative and management suite of offices.3
Once on the basement level, Demma and the group of about 20 demonstrators proceeded towards
Scott’s office passing the kitchen area, housekeeping office, and employee break room.
The area containing the management offices is secured by two doors with passcode 10
protected keypads. As an employee of the Respondent, Demma had a passcode to unlock the
doors to the secured areas of the basement level of the building.4 After leading the group of
protestors to the lower level, Demma entered the passcode into the keypad. The group walked
through the door into a small common area for the management and administrative offices.
Demma continued into Scott’s office, which was one of the offices off of the common area. 15
Because Scott’s office was very small, only Demma and a few of the protestors were able to
squeeze into it. Scott protested that they could not all come into her office; and she would only
speak with Demma and Tufino. At this point Demma told Scott that their only purpose was to
deliver to her a petition which detailed problems with the working conditions experienced by the
housekeepers. He asked that she respond to the petition by October 16. Scott informed him that 20
she would read it and get back with him. The encounter with Scott lasted about 5 to 10 minutes.
The group was then escorted out of the building by Radosevich.5 As they were leaving, the
group passed a few employees in the employee break room. On their way out of the building,
Demma and the protestors did not speak to anyone, chant or take any other disruptive action.
Upon exiting the building, the group rejoined the other individuals demonstrating outside in front 25
of the Atwood.

3 The administrative and management office suite contains confidential information and
valuable items. It is undisputed that in these secured areas Respondent stores cash, corporate
checks, personnel files, guests’ contracts, and financial reporting papers.
4 The Respondent’s vendors are allowed into the basement’s secured areas because that is
where goods are received. Certain of the Respondent vendors are given the passcode for access
to the secured areas of the basement level of the building. These vendors are the ones who:
deliver prior to any of the employees arriving at work (about 5:30 a.m.); vendors that regularly
deliver to the Burnham or the Atwood; and vendors that arrive during the Respondent’s busiest
times (e.g., lunch, dinner).
5 Contrary to Demma’s testimony, Tufino testified that no one escorted them out of the
building after their encounter with Scott. Regardless, I do find that this discrepancy is
insignificant and not relevant to the ultimate decision on the merits of the complaint.
JD–03–17
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D. Post October 9 Demonstration
After participating in the October 9, demonstration, Demma was not scheduled to return
to work until October 15. During the period from October 9 to 14, he was not contacted by 5
management. However, Demma began to receive emails from about nine coworkers
complaining about him entering the secured area on October 9 with other protestors. The
coworkers expressed anger and concern about Demma allowing nonemployees to access the
secured areas without authorization from management. Polk, Radosevich, Palladino, and Stepto
were copied on the email chain.10
On October 10, Demma emailed Palladino requesting a meeting because he wanted
management to stop his coworkers from sending him what he felt were harassing emails.
Palladino responded on October 12, informing him that they could meet in a couple of days. By
email dated October 14, Demma asked for the status of his request to meet with Palladino and 15
Hayes to discuss the daily email he had been receiving from coworkers. Hayes suggested that
they meet the following morning but Demma replied that he had a prior appointment. After that
exchange, there was no further communication between the parties about rescheduling the
meeting.
20
E. October 15 meeting between Demma and management
When Demma returned to work on October 15, Palladino approached him to say that
management was ready to meet with him. Demma asked for Tufino to attend the meeting as his 25
witness; and she was allowed to participate but told that she could not speak. The meeting, held
in the executive offices, included: Demma, Tufino, Palladino, Hayes, and Polk. Hayes began the
meeting by asking Demma why he felt that his colleagues were harassing him. When Demma
responded that he felt the emails had a harassing tone, Hayes replied, “Just like you have your
opinion, they have theirs.” (Tr. 78.) Hayes then asked Demma if he was the person who entered 30
the security code to access the executive offices with the group of protestors on October 9.
Demma answered that he “didn’t know.” She again prompted him to remember if he used the
door code to access the executive suites, and Demma reiterated that he “didn’t know.” After this
exchange, Hayes informed him that management had a videotape of him entering the code into
the keypad. She admonished him that his action constituted a serious security breach; and he 35
was suspended until a more thorough investigation of the incident could be conducted. The
meeting concluded and Palladino escorted Demma out of the building. Tufino, who was not
questioned by management in the meeting, returned to work.
40
F. Investigation into October 9 Security Breach
Palladino had been in his office with Chef Millman on October 9, when a server, Mimi
Holland, came into his office to tell him that there were protestors in the secured area of the
basement. He ran to Scott’s office and saw a large group of about 20 people coming out of the 45
executive suite. Palladino recognized that about six of the protestors were employees of the
JD–03–17
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Burnham or the Atwood. After the incident, on October 10, Palladino viewed the Respondent’s
security footage, which showed Demma entering the passcode into the keypad and leading a
group of about 20 protestors into the secured area. As part of his investigation into the incident
Palladino: (1) viewed the security footage several times; (2) conducted the meeting with Demma
that occurred on October 15 to question him and listen to his explanations; and (3) asked 5
employees who worked on October 9, to tell him what, if anything, they witnessed on that day.
Demma was also asked to submit a written statement about his version of the October 9 events.
After taking the aforementioned steps, Palladino consulted with Chef Millman, Polk, Scott, and
Hayes about what he saw on the videotape; and discussed with them their opinion on what, if
any, action should be taken against Demma. Due to her position as the human resources 10
director, Palladino consulted with Polk on about five or six occasions regarding his investigation
into Demma’s action. Polk voiced her opinion about what she saw on the security tape and made
recommendations on how Palladino should proceed. Since, as the general manager of the
Atwood, Palladino did not have authority over the Burnham’s staff, he did not involve its general
manager in the investigation or interview the housekeeping or hotel staff. Palladino admitted, 15
however, that he discussed with Scott (and several other managers) the videotape of the incident
because she was the reason Demma and the protestors entered the secured area on October 9.
G. October 22, the Respondent Terminates Demma20
On October 21, Palladino asked Demma to meet with him and Hayes the next day.
Consequently, on October 22, Demma, Tufino, Palladino, and Hayes met in the executive
offices. Hayes began the meeting by informing Demma that he was terminated because his act
of entering the passcode into the secured door and allowing the protestors, many of whom were 25
not the Respondent’s employees, to enter which was a “serious security breach.” Demma
objected and accused management of singling him out for adverse action because of his union
activity. In response, Hayes reiterated that he had committed a serious security breach. Demma
was given a copy of the termination letter, a bag to place his personal belongings in, and escorted
out of the building.30
By April 2016, the workers’ continued agitation resulted in them voting in the Union to
represent the Burnham’s housekeeping staff.
35
III. DISCUSSION AND ANALYSIS
A. LEGAL STANDARDS
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to 40
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right “to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection.” See Brighton Retail, Inc., 354 NLRB 441, 441 (2009). 45
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In Meyers Industries (Meyers I), 268 NLRB 493 (1984), and in Meyers Industries
(Meyers II), 281 NLRB 882 (1986), the Board held that “concerted activities” protected by
Section 7 are those “engaged in with or on the authority of other employees, and not solely by
and on behalf of the employee himself.” However, the activities of a single employee in enlisting
the support of fellow employees in mutual aid and protection is as much concerted activity as is 5
ordinary group activity. Individual action is concerted if it is engaged in with the object of
initiating or inducing group action. Whitaker Corp., 289 NLRB 933 (1988). A conversation can
constitute concerted activity when “engaged in with the object of initiating or inducing or
preparing for group action or [when] it [has] some relation to group action in the interest of the
employees.” Meyers II, supra, 281 NLRB at 887 (quoting Mushroom Transportation Co., 330 10
F.2d 683, 685 (3 Cir. 1964)). The object of inducing group action, however, need not be
expressed depending on the nature of the conversation. See Sabo, Inc. d/b/a Hoodview Vending
Co., 359 NLRB 355, 358–359 (2012).
An employer violates Section 8(a)(1) of the Act if it disciplines or discharges an 15
employee for engaging in activity that is “concerted” within the meaning of Section 7 of the Act.
If it is determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the
employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the adverse employment action was motivated by the employee’s
protected, concerted activity. Relco Locomotives Corp., 358 NLRB 37 (2012) (citing Meyers 20
Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). Once
the General Counsel establishes such an initial showing of discrimination, the employer may
present evidence, as an affirmative defense, showing it would have taken the same action even in 25
the absence of the protected activity. The General Counsel may offer evidence that the
employer’s articulated reasons are pretext or false. Relco, supra.
As with 8(a)(3) discrimination cases, the Board applies the Wright Line6 analysis to 8(a)
(1) concerted activity cases that involve an employer’s motivation for taking an adverse 30
employment action against employees. Hoodview Vending Co., supra; Saigon Gourmet
Restaurant, Inc., 353 NLRB 1063, 1065 (2009). The burden is on the General Counsel to
initially establish that a substantial or motivating factor in the employer’s decision to take
adverse employment action against an employee was the employee’s union or other protected
activity. In order to establish this initial showing of discrimination, the evidence must prove: (1) 35
the employee engaged in concerted activities; (2) the concerted activities were protected by the
Act; (3) the employer knew of the concerted nature of the activities; and (4) the adverse action
taken against the employee was motivated by the activity. Once the General Counsel has met its
initial showing that the protected conduct was a motivating or substantial reason in employer’s
decision to take the adverse action, the employer has the burden of production by presenting 40
evidence the action would have occurred even absent the protected concerted activity. The
General Counsel may offer proof that the employer’s articulated reason is false or pretextual.
Hoodview Vending Co., supra 359 NLRB 355, at 359. Ultimately, the General Counsel retains

6251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989
(1982).
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the ultimate burden of proving discrimination. Wright Line, id. However, where “the evidence
establishes that the reasons given for the Respondent’s action are pretextual—that is, either false
or not in fact relied upon—the Respondent fails by definition to show that it would have taken
the same action for those reasons, absent the protected conduct, and thus there is no need to
perform the second part of the Wright Line analysis.” Golden State Foods Corp., 340 NLRB 382,5
385 (2003) (citing Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982)). The Wright Line analysis is not applicable when there is no dispute that the employer
took action against the employee because the employee engaged in protected concerted activity.
Phoenix Transit System, 337 NLRB 510, 510 (2002), enfd. 63 Fed.Appx. 524 (D.C. Cir. 2003).
10
While a case involving adverse action against an employee who engaged in protected
concerted activity is properly analyzed under a Wright Line analysis, if the evidence shows that
the employee engaged in an outburst of an egregious nature, the employee may lose protection of
the Act. In Atlantic Steel7 the Board established several factors that must be considered in
determining whether an employee who is engaged in concerted protected activity loses 15
protection of the Act because of opprobrious conduct. The factors to consider are: (1) the place
of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s
outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor
practice. Atlantic Steel at 816. Therefore, a balancing of these factors is required to render a
decision on the ultimate question.20
B. Wright Line Versus Atlantic Steel Analysis
The General Counsel argues that the Atlantic Steel balancing test is appropriate in this 25
case because the reason for Demma’s termination is part of the res gestae of his protected
concerted activity. The Respondent counters that the Atlantic Steel balancing test applies only to
cases involving verbal outbursts or offensive language. Moreover, the Respondent argues that
the factors in the Atlantic Steel balancing test are “incompatible with non-verbal conduct; and
there are no Board cases that apply the balancing test to “a security breach or any other non-30
verbal misconduct.” (R. Br. 17.)
I agree with the Respondent and reject the General Counsel’s argument because I cannot
find any Board law or case law to support the proposition that the Atlantic Steel balancing test
applies to nonverbal conduct. Likewise, the General Counsel failed to present case law to 35
support its argument on this point. Consequently, I find that this case is properly analyzed under
Wright Line.
C. October 22, Respondent Terminates Demma
40
The General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act by
terminating Demma for engaging in protected concerted activity effective October 22. The
General Counsel contends that factors pointing to evidence of the Respondent’s unlawful
termination of Demma are: (1) management’s “sham” investigation into the charges against

7 245 NLRB 814 (1979).
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Demma; (2) the close timing between Demma’s protected concerted activity and his termination;
(3) instances of other employees engaged in similar conduct without being subjected to adverse
employment actions; and (4) failure of the Respondent to take action against anyone else
involved in the incident other than Demma.
5
The Respondent denies that Demma’s union activity was a factor in its decision to
terminate him. Further, the Respondent insists that the union’s campaign against the Respondent
was not protected activity; therefore, Demma’s action of delivering the petition was likewise not
protected under the Act. Regardless, the Respondent insists that Demma was discharged for
breaching security, and not because he submitted a petition to Scott complaining about working 10
conditions.
Based on the evidence, I find that the General Counsel has failed to establish that the
termination of Demma violated Section 8(a) (1) for the reasons discussed below.
15
A Wright Line analysis is appropriate in this case because the Respondent’s motive is at
issue. Despite the Respondent’s argument, the evidence is clear that Demma engaged in
protected concerted activity when he, along with a group of protestors, delivered a petition to
Scott detailing their issues with certain working conditions. The Board has held that employees
who submit petitions to employers are engaging in protected concerted activity if the petition 20
concerns unfair treatment or issues affecting their terms and conditions of employment. Texas
Dental Assn., 354 NLRB 398 (2009), reconsideration denied 354 NLRB 957 (2009) (employees
anonymously emailed petition is protected concerted activity because the petition detailed
concerns about management and unfair treatment); Laguardia Associates, LLP d/b/a Crowne
Plaza, 357 NLRB 1097 (2011) (petition concerning working conditions protected concerted 25
activity); Liberty National Products, Inc., 314 NLRB 630 (1994) (petition complaining about
delay in receiving paychecks is protected concerted activity); Clean Power, Inc., 316 NLRB 496
(1995) (petition concerning complaints of employees being overworked is protected concerted
activity). The evidence is undisputed that Demma lead a group of workers into management’s
office to deliver a petition concerning the working conditions of housekeeping staff. Likewise, it 30
is undisputed that the Respondent was aware of this activity because Demma delivered the
petition to Scott, the hotel’s general manager. Also, it is clear that the termination constitutes an
adverse employment action.
Therefore, the next factor to consider is whether Demma’s protected activity was a
substantial or motivating factor in the Respondent’s decision to terminate his employment. Upon 35
such a showing, the Respondent then must present evidence that it would have discharged
Demma even absent the protected concerted activity. See Correctional Medical Services, 356
NLRB 277, 278 (2010). I find, however, that the General Counsel has failed to prove this final
prong of its initial burden.
In its brief, the General Counsel argues that discriminatory animus can be inferred from: 40
(1) the “sham” investigation conducted by Palladino; (2) the timing of Demma’s termination; (3)
Respondent’s failure to discipline other employees for similar security violations; and (4)
Respondent’s failure to discipline other employees who followed Demma into Scott’s office. I,
however, do not find the General Counsel’s argument persuasive.
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The evidence established that within a day of Demma’s security breach, Palladino
reviewed the videotape of his actions. Over the next several days, Palladino continued the
investigation into Demma’s action by consulting with other managers about what appeared on
the videotape, requesting statements from employees who witnessed the incident on October 9,
asking Demma for a statement detailing his version of the incident, convening a meeting 5
between Demma and management to discuss the incident, and consulting with the Respondent’s
human resources unit. The General Counsel makes the argument that because Palladino
discovered by October 10, that Demma was the person who entered the passcode to open the
door into the secured area “the investigation should have stopped there.”(GC Br. 19.) I cannot
understand the logic of this argument. It appears that the General Counsel is arguing that the 10
Respondent should be penalized for taking the time to conduct a detailed investigation. The
evidence makes clear to me that the Respondent did conduct a thorough investigation which
weighs against a finding of discriminatory animus.
Moreover, unlike the General Counsel, I do not find it suspicious that Palladino did not
question any housekeeping employees about the events on October 9. Palladino had the best and 15
most objective evidence, the videotape, of whether Demma was the person who entered the
passcode that allowed the protestors to enter into the secured area. Consequently, his interest
was in what, if any, disruption other employees saw Demma and the demonstrators commit. I
also find plausible and credible Palladino’s testimony that as the general manager of the
restaurant and with no managerial authority over the housekeeping staff, his investigation did not 20
include them unless a member of the housekeeping staff had been in the employee break room
and witnessed the incident of October 9.
I also find that the timing of Demma’s termination does not support a finding of
discriminatory animus. The General Counsel argues that the “close timing between delivering
the petition and Respondent’s series of adverse actions support Respondent’s discriminatory 25
motive.” It is undisputed that Demma accessed the secured door and delivered the petition to
Scott about working conditions within minutes of each other. Consequently, one cannot separate
the timing of Demma’s termination from his submission of the petition or accessing the keypad
to enter the secured area with nonemployees. Demma was terminated quickly because it did not
take long for an investigation to reveal that he was the person who entered the passcode into the 30
secured door and led nonemployees into the private area containing the managerial suite. The
additional time taken to investigate the incident was used to determine whether anyone in the
group acted in a disruptive manner once they accessed the secured areas.
The General also argues that because other employees have participated in the same
conduct as Demma without punishment “significantly underscores Respondent’s discriminatory 35
motive.” (GC Br. 20.) The General Counsel pointed to several instances when nonemployees
were given access, by management, to the security codes or allowed to enter secured areas
unaccompanied by employees. Demma also testified that he witnessed various vendors enter the
code into the secured doors’ keypads. I find, however, that these instances differ in key respects.
Palladino admitted that certain vendors were given the keypad codes because their deliveries 40
occurred early in the morning before any employees had arrived for work. The evidence was
undisputed that the Respondent was able to trust these nonemployees with the door codes
because: (1) they had contracts with the vendors; (2) usually the same delivery people made the
deliveries; and (3) the delivery people were videotaped while in the secured areas.
Consequently, the Respondent’s vendors (and by extension their staff) could easily be held 45
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accountable for any misconduct committed by the vendors’ employees. However, the protestors
that Demma allowed access into the “employee only” area were mostly unknown to the
Respondent’s managers, nonmanagerial staff, and several protestors were unknown even to
Demma. (Tr. 123–124) Likewise, even though there were occasions when employees’ family
members would be allowed to wait for them unattended or escort themselves to secured areas to 5
meet employees, the family members were known to management and other employees. Again,
management would have been able to easily hold these persons to account if they committed an
unsafe act or other misconduct while in the employees’ only area of the building.
Lastly, the General Counsel argues that because no disciplinary action was taken against
anyone other than Demma, this should weigh in favor of a finding of discriminatory animus.10
However, I find that the General Counsel’s final argument is also flawed. The General Counsel
contends,
While Respondent could have taken action against any of the other hotel
employees present, it failed to do so. These employees’ failure to report or stop
the delegation was just as much of a security breach as Demma using his 15
employee code.
(GC Br. 20.) The General Counsel’s argument fails to recognize that an employee, Mimi
Holland, had reported Demma and the other protestors to Palladino who ran to Scott’s office to
investigate. It is also undisputed that the security guard initially stopped Demma and the group 20
from going to Scott’s office but allowed them to proceed when Demma misrepresented that
everyone worked for the Respondent. It is also significant to note that even though Tufino,
Arceo, Vasques, Arrenos, and Pariente were engaged in the same protected concerted activity as
Demma and accompanied him on October 9, to Scott’s office, they were not terminated. This
fact also weighs against a finding that Demma was terminated because of his protected concerted 25
activity.
Accordingly, I find that based on the evidence, the Respondent’s discharge of Demma
does not violate Section 8(a) (1) of the Act. I recommend, therefore, that paragraph V of the
complaint be dismissed.830
Dated: Washington, D.C. January 27, 2017
35

Christine E. Dibble (CED)
Administrative Law Judge

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
c~~4 ~,~,