Modern Management Services, LLC d/b/a The Modern Honolulu

National Labor Relations Board - Administrative Judge Opinions

Jan 23, 2014

20-CA-072776 (N.L.R.B. Jan. 23, 2014)

JD(SF)–03–14
Honolulu, Hawaii
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES, SAN FRANCISCO BRANCH OFFICE
MODERN MANAGEMENT SERVICES, LLC,
d/b/a THE MODERN HONOLULU
Cases 20-CA-072776
20-CA-080437
and 20-CA-081477
20-CA-081478
20-CA-083330
UNITE HERE! LOCAL 5
Trent K. Kakuda and Katrina H. Woodcock, Attys.,
for the Acting General Counsel.
Robert S. Katz and John S. Mackey, Attys.
(Torkildson, Katz, Moore,Hetherington & Harris)
Honolulu, Hawaii, for Respondent.
Jennifer Cynn, Atty. UNITE HERE! Local 5,
Honolulu, Hawaii, for the Charging Party.
DECISION
Statement of the Case
William L. Schmidt, Administrative Law Judge. UNITE HERE! Local 5 (Union, Local
5, or Charging Party) filed Case 20-CA-072776 on January 18, 2012, alleging that Modern
Honolulu (Respondent, Hotel, or Employer) violated Section 8(a)(1) and (3) of the National
Labor Relations Act (NLRA or Act) by terminating Alcaraz. The Union filed Case 20-CA-
080437 on May 4 alleging that Respondent violated Section 8(a)(1) and (5) by refusing to
recognize the Union’s appointed bargaining representative and by denying the representative
access to its property. On May 18, the Union filed Cases 20-CA-081477 and 20-CA-081478
alleging that Respondent’s agent violated Section 8(a)(1) repeatedly by coercively interrogating
employees, and by engaging in unlawful surveillance or giving the impression of engaging in
unlawful surveillance of employee union activities. On June 15, the Union filed Case 20-CA-
083330 alleging that Respondent’s agent violated Section 8(a)(1) and (3) by discriminating and
retaliating against employee Jenie Amoguis for her union activity and by denying Amoguis’
request to have union representation at an investigatory interview that led to disciplinary action.
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Based on these and other charges that Union filed against Respondent that are no longer
relevant here, the Regional Director for National Labor Relations Board, Region 20, issued an
order consolidating the pending charges and a consolidated complaint on June 29 alleging that
Respondent violated Section 8(a)(1), (3), and (5). On September 14, 2012, the Regional Director
issued an order severing certain of the cases initially consolidated, and issued a second order
consolidating cases and a second amended consolidated complaint in the cases set forth in the
caption here alleging that Respondent violated Section 8(a)(1), (3), and (5). This pleading (the
complaint) is the General Counsel’s principal pleading in this case. Respondent filed a timely
answer denying the substantive unfair labor practice allegations in the complaint.
I heard this case in Honolulu, Hawaii, from October 1 through October 4, 2012. Having
now considered the record, including the demeanor of the witnesses, together with the briefs
filed on behalf of the General Counsel and the Respondent, I find that the Respondent violated
Section 8(a)(1), and (5) of the Act as alleged based on the following:1
Findings of Fact
I. Jurisdiction and Labor Organization Status
Respondent, a Hawaii limited liability company, operates the Modern Honolulu, a hotel
formerly known as the Waikiki Edition, a business that provides lodging and food for its guests.
During a twelve-month period to August 31, 2012, Respondent derived gross revenues in excess
of $500,000 from conducting this operation. During the same period, Respondent purchased and
received products, goods, and materials valued in excess of $5,000 from locations outside the
State of Hawaii. Respondent admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. Respondent further admits, and I find,
that Unite Here! Local 5 is a labor organization within the meaning of Section 2(5) of the Act. I
further find that it would effectuate the purposes of the Act of the Board to exercise its statutory
jurisdiction to resolve this labor dispute.
II. Alleged Unfair Labor Practices
A. Introduction
Marriott International owned this property when it operated as the Waikiki Edition.
Marriott voluntarily recognized Local 5 as the collective bargaining representative of a wall-to-
wall hotel industry unit on June 15, 2011,2 but sold the property to Respondent before it
concluded a collective bargaining agreement. Respondent began operating the property on
August 28 and renamed it the Modern Honolulu. It hired most of the former Marriott workers,
and granted recognition to Local 5 in the existing unit.

1 In its post-hearing brief, counsel for the General Counsel moved to withdraw paragraph
8(b) of the Second Amended Complaint. The motion is granted.
2 The relevant events involving these parties occurred between August 2011 and June 2012.
References in my findings to particular dates refer to the appropriate 2011 or 2012 calendar year.
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Following recognition, the Employer voluntarily granted Local 5’s assigned agents
access to the hotel property.3 Under this arrangement, union agents walked around the hotel
unescorted to observe working conditions but only spoke with employees in the nonworking
areas such as the locker rooms and the employee dining room. Local 5 assigned two agents to
service the employees they represented at the property. Between the time of the Union’s initial
recognition and early 2012, these agents were Renee Togafau and Justin Jansen. They regularly
visited the property to observe working conditions, and to talk with workers about their job
concerns, upcoming union meetings, and the status of the contract negotiations.
This case primarily concerns workers in the Hotel’s housekeeping department, a portion
of the overall unit represented by Local 5. The unit includes the following non-supervisory
workers from the housekeeping department: room attendants, turndown room attendants, public
area attendants, linen coordinators, housekeeping coordinators, seamstresses, and housemen.
About 80 employees work in this department.
In October 2011, Respondent hired Emma Clemente as the manager of the housekeeping
department. A month later, the Hotel promoted Clemente to the position of director of
housekeeping and a succession of of individuals succeeded her as the department manager. At
the times pertinent here, Bogdanca Spiric and Alex Teng served as the housekeeping manager.
The department also employed several supervisors, including Raymond Texeria who figures in
the allegations here.
The housekeeping department is located in the Hotel basement. Two private offices are
contained within the department’s space, one for its director and the other for its manager. The
non-supervisory coordinator’s desk is located in the outer space near the entrance leading to the
director’s private office. A large bulletin board for use in posting employee work schedules and
other notices of importance to the workers is located on a wall in the large outer space of the
departmental office. Employees ordinarily had unrestricted access to this area outside the private
offices.
Early in its organizing campaign Local 5 established an employee committee that
included workers from various Hotel departments. The committee members assisted Local 5
with its organizational activities at the property and, following recognition, they served as typical
union stewards.
On November 17, Local 5 and the Hotel agreed to meet for their first collective
bargaining session on December 14. Shortly afterward, Local 5 distributed flyers in the
employee dining room and the locker rooms (also used by the hotel’s managers and supervisors)
announcing the start of negotiations and introducing the union committee pictorially to the
Hotel’s workers. Housekeeping department workers pictured on this flyer included Juliana

3 In an April 1 letter, Local 5 agent Laura Moye asserted that this access arrangement
provided: (1) Union representatives will not hand out leaflets to workers in public working areas;
(2) Union representatives will have access in the kitchen but will not go behind the line; and (3)
Union representatives will not go on guest floors to speak to housekeepers. (GC Exh. 10)
Respondent never disputed her assertion.
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Alcaraz, Florence Miguel, Audrey Jordan-Gecain, Jovelyn Gecain, Maria Cabusas, Fapiana Esa,
and Fapiki Esa.
As found below, I have concluded that the General Counsel has met his burden of
proving the allegations of the complaint in this case. Specifically I find that the credible
evidence demonstrates that Clemente unlawfully fired Alcaraz for her protected concerted
activity. I further find that the Hotel later barred Alcaraz unlawfully from the property after
Local 5 designated her as an agent to service the unit employees. In addition, the evidence
shows that Clemente coercively questioned workers in the housekeeping department about their
protected activities and the protected activities of other employees, and that she denied an
employee’s timely request for Weingarten representation at an investigatory interview. In
making these findings, I have concluded, for a variety of reasons noted below, that various
assertions made by Clemente, the key defense witness, are simply not credible. Hence, I have
relied on her testimony only where it is not contradicted by other more credible witnesses. The
credible evidence strongly suggests that Clemente felt that the employees’ choice to be
represented by a union amounted to a personal affront because of her superior managerial skills.
B. Facts relevant to the unfair labor practice allegations
The Hotel employs a housekeeping coordinator (a unit position) on each shift. Clemente
hired Wilma Riveral as the second shift coordinator (2-10 p.m.) on October 13. About a week
after Riveral’s hire, Clemente began questioning Riveral about her union sympathies on several
separate occasions. Clemente asked Riveral if she was “anti-union or [was on] their side.” On
the first occasion Clemente probed her union sympathies, Riveral merely smiled and when
pressed further she told Clemente that the Union did not matter so long as she had the job.
In early October, Local 5 Organizer Jansen learned that the Hotel hired Clemente as the
new department manager. Around that time, he visited the outer area of the housekeeping
department on nearly a daily basis to view the work schedules and any alterations that might
have been made to it. On one such occasion, Clemente approached him, introduced herself, and
asked who he was. After Jansen identified himself as a union organizer assigned to the property,
Clemente invited him into her office where the two had what Jansen described as a pleasant
conversation that lasted about 5 minutes.
After meeting Clemente, Jansen continued to visit the housekeeping department until one
day in early November when she challenged him about being in the office without her prior
permission. Jansen responded by saying he did not need her permission to check the schedule.
Clemente accused him of being rude and arrogant, and instructed Jenie Amoguis, the first shift
coordinator, to call security. A hotel security officer soon arrived and asked Jansen what he was
doing to which Jansen replied that he was simply there to check the work schedule. Amoguis
overheard Clemente later request that the security officer call the police but there is no indication
that anyone connected with the Hotel ever summoned the police. Shortly thereafter, Jansen left
the housekeeping office and went about his business.
Later that day, Clemente spoke with Riveral about her incident with Jansen that morning.
During this exchange, Clemente disparaged Amoguis because she had not “saved” her from the
union representative. Clemente queried Riveral as to whether she would have saved her from the
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union agent had she been there but Riveral did not respond. Clemente then instructed Riveral to
prepare a sign saying that the outer door to the housekeeping department office must always
remain closed. For the next several weeks, the door to the housekeeping department remained
locked. As a result, Jansen no longer had access to the office and the employee schedules posted
there.
Jansen prepared the Union flyer for distribution shortly after Thanksgiving Day that
announced the start of negotiations and that pictured the workers designated to serve on the
Union’s bargaining committee. He provided copies to the committee members for distribution in
the employee dining room and the locker rooms. Later, Clemente told Riveral that the
employee-committee members pictured on the Union’s flyer were “problems and headaches.”
Florence Miguel works at the Hotel as a full-time turndown room attendant. She began
working there when Marriott operated the property. Miguel became and remained a member of
the union’s committee and served on its negotiating team. Miguel’s husband, Ray, also worked
at the hotel during this relevant period.
Miguel saw copies of the Union’s flyer with her picture, among others, in the employee
dining room and the women’s locker room in late November or early December. After the
flyer’s distribution, Clemente confronted Miguel in the locker room in the presence of others
seeking an explanation as to why her picture appeared in it and why the employees needed a
union. Miguel told Clemente the employees needed a union for job security. Clemente scoffed
at her response. She told Miguel “[Y]ou guys don't need a union because I'm a good manager.”
Miguel did not respond. Later, Clemente told housekeeping coordinator Wilma Riveral that she
should have never hired Ray Miguel because his wife “is very strong union.”
Jovelyn (Jovy) Gecain works as a housekeeper in the Hotel’s public area. She also serves
on the Union’s committee. In late November or early December, Clemente summoned Gecain to
her office over the handheld radio Gecain carries. When Gecain went to the office Clemente
conducted a closed-door meeting with her. Clemente told Gecain that she wanted to get to know
her. Among the inquiries Clemente made of Gecain was whether she was “union” and whether
she supported the “union.” Gecain responded affirmatively to both questions.
The Hotel’s “Team Member Handbook” (Handbook) lists gossiping as item No. 49 on its
list of 57 “House Rules” as “conduct that must be avoided.” (GC Exh. 6, pp. 23-26) The
Handbook warns that the failure “to comply with any rules and policies will result in disciplinary
action up to and including termination.” (Id., p. 23)
Soon after her appointment, Clemente instituted a practice of conducting two “briefings”
per day for the purpose of providing the staff with updated instructions and directions. These
briefings normally lasted about 15 minutes. The morning briefing began at 8:30 a.m. and the
afternoon briefing began at 5:00 p.m.
At several of the briefings in the latter part of November, Clemente admonished
employees for gossiping. Some evidence suggests that her admonishments really grew out of
Clemente’s concern about employees talking to “outsiders.” Other evidence indicates younger
workers complained of older workers gossiping on the floors during work time. No allegation
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claims that Clemente sought to interfere with Section 7 activities by lecturing employees against
gossiping. In discussing this topic at one or more of the briefings, Clemente made reference to
“cutting tongues,” or “cutting the tongue,” an idiomatic expression a Filipino worker had used
when she brought up the topic of gossiping early on. Despite the fact that a large majority of the
housekeepers are Filipinos, some, including Juliana Alcaraz, did not understand this idiom.

Alcaraz worked with Miguel on the afternoon shift as a turndown attendant.4 Along with
Miguel, Alcaraz became very active in Local 5’s organizing effort. She attended union
meetings, distributed literature, promoted the Local 5 to other workers at the Hotel as well as at
other properties, and soon became a member of the Union’s committee at the Hotel. Her picture
appeared in the Union’s flyer widely distributed around the Hotel after Thanksgiving.
Miguel and several of the regular room cleaners with whom Alcaraz spoke seemed
thoroughly confused about the “cutting tongue” idom Clemente used in connection with her
admonitions against gossiping. Several of the employees encouraged Alcaraz to ask Clemente
for an explanation of its meaning but Alcaraz feared doing so. At the urging of some fellow
workers, Alcaraz finally agreed that she would ask Clemente about the meaning of “cutting
tongues” at the upcoming mandatory meeting for the housekeeping employees.
Clemente scheduled the departmental meeting for December 8 from 3:00 to 5:00 p.m.
Notice of the meeting had been posted well in advance in the housekeeping office and Clemente
mentioned it several times at the daily briefings. In planning the meeting, Clemente had
arranged for Vital Calamur, the Hotel’s general manager (also referred to by employees as “V”
or Mr. V), and Jodi Ching, the Hotel’s HR manager, to speak.5 In addition, she arranged
presentations by an Ecolab trainer about the cleaning chemicals the housekeepers regularly used,
and by an experienced housekeeper about the proper towel-folding procedure.
The December 8 meeting was held in the outer area of the housekeeping department, an
area witnesses estimated to be from 200 to 350 square feet. Approximately 60 employees
attended. Clemente set a table up in the front of the room and rows of chairs facing the table as
well as along a couple of the walls. The witnesses described the atmosphere as very crowded
and quite warm.
For most of the meeting, Clemente stood or sat in the front of the room to make her own
presentations or to introduce the speakers. Alcaraz arrived slightly late for the meeting and stood
along the back wall throughout most of the meeting. Toward the end of the meeting, Clemente
called on the department supervisors to acknowledge the employees’ good work. After the
supervisors finished, Clemente asked for questions or comments from the employees. The noise
level in the room increased considerably as several workers sought recognition to speak and
others spoke up without being recognized or to voice support for comments made by others.

4 From the start of their shifts at 1 p.m. until the dinner break at 4:30 p.m., Alcaraz and
Miguel worked as regular room cleaners. After the dinner break and Clemente’s afternoon
briefing, their work shifted to that of a turndown attendant until the end of their day at 9 p.m.
5 As it turned out, Calamur could not attend.
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Alcaraz raised her hand seeking a turn to speak. When recognized, Alcaraz asked what
Clemente meant when she spoke of gossiping and “cutting tongue” at the daily briefings. She
added that when people speak the truth, it is not gossip. Several of the workers nodded or spoke
of their agreement with Alcaraz’ comment. Clemente did not respond to Alcaraz. Instead, she
moved on asking if any others had comments or questions. 6
Alcaraz raised her hand again, saying that she had not finished, that she had more to say.
Someone around Alcaraz, a very slight woman, pushed her forward into the room. Clemente
told her that if she still had more concerns, she should come to her office so they could discuss
them further. Regardless, Alcaraz persisted in her request to speak again. When Clement said
she needed to give others a chance to talk, Alcaraz blurted out, “[W]hat is this, Communist? We
can't speak anymore?”
By this time, Alcaraz was close to Audrey Jordan-Gecain (Gecain or Audrey Gecain), the
linen coordinator, and Clemente stood close by in the front of the room near the supervisors.
Gecain caught Clemente’s attention to obtain Clemente’s permission to leave the room because
she felt warm and uncomfortable. When Clemente nodded she could go, Gecain took Alcaraz by
the arm attempting to take her along because, according to Gecain, no one was listening to her.
But others supported Alcaraz’ attempt to speak further. Arnold, the houseman, told Gecain, “Let
Juliana speak.” Gecain finally abandoned her attempt to leave and sat down.
Clemente, who had approached somewhat closer to Alcaraz and Gecain, finally relented
and asked Alcaraz what she wanted to say about gossiping. Alcaraz responded saying that
workers were being accused of gossiping. An exchange followed between the two that lead
Clemente to insist that Alcaraz identify who had been gossiping. At first, Alcaraz refused saying
she preferred not to name anyone. Clemente, however, insisted that Alcaraz tell her who had
been gossiping.7 Finally, Alcaraz pointed her finger at Clemente and said that she had been
gossiping. There is no evidence that Clemente responded to Alcaraz’ accusation or that anything
further happened between them at that time.

6 I base my findings regarding Alcaraz’ conduct during this meet largely on the testimony of
Audrey Gecain. Clemente denied that she even opened the meeting for employee comments but
I find this claim unworthy of belief because of contrary testimony from several employee
witnesses and the evidence that several other employees actually spoke. Unfortuately, Alcaraz, a
native Tagalog speaker, chose to testify using her very limited English language skills. As a
result, I found significant portions of her account about this meeting simply incomprehensible.
7 Wilma Riveral credibly testified that Clemente used a very aggressive tone of voice when
she demanded that Alcaraz identify the gossipers to whom she referred. Clemente’s internal
memo supports the claims of Alcaraz and Riveral that Clemente demanded that Alcaraz disclose
specific names. Thus, the memo states: “When Juliana was asked who were those employees
that she had mentioned gossiping and unhappy she couldn't provide their names but instead she
responded disrespectfully, “It's YOU”. I was shocked myself but I didn't give her the
opportunity to see me being affected by it. I stood still and calmly thank(ed) everyone for all
their hard work and that all I ask is to support the leadership and authority in Housekeeping and
treat everyone with respect and stop gossiping.” GC Exh. 21. [Emphasis supplied]
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Clemente recognized several other employees who sought to speak about their workplace
concerns. One, Adoracion Padilla, asked Clemente why the Filipino workers were reprimanded
when they spoke around the workplace in their native language but others who spoke different
languages were not. When Clemente asked Bogdanca Spiric, the housekeeping department
manager who succeeded Clemente in that position, Spiric told her that the Filipino employees
had never been prohibited before from talking among themselves in their native language.
Another unidentified worker accused Clemente of showing favoritism toward certain workers.
Florence Miguel told Clemente that she treated the workers like kids. Another worker identified
only as Arnold, a houseman, accused Clemente of staging the meeting because they were union.
Throughout these exchanges, the noise level in the room steadily increased. Later, Clemente
described several of these workers as Alcaraz’ “support group.”8 (GC Exh. 21)
The meeting finally ended around 5:30 p.m. when Ray Miguel asked that Clemente
excuse his wife, Florence, and himself. Clemente agreed but when Florence stood up she fainted
and collapsed to the floor. A near-panic atmosphere erupted. Several employees began running
from the room while others shouted for 911-emergency assistance. Ultimately, an EMT team
arrived and transported Florence Miguel to a hospital.
After the meeting, Alcaraz returned to her usual work as a turndown attendant. At the
end of her shift, she went to the housekeeping office where she met Clemente by chance.
Clemente asked her to work the next day at an overtime rate because Alcaraz ordinarily did not
work on Saturday. Alcaraz agreed and offered to work Sunday also but Clemente told her she
would not be needed that added day.9
Meanwhile, Clemente said that she offered her resignation to the hotel manager following
the meeting because she became so distraught over losing control of the proceeding but Calamur
refused the offer. Sometime thereafter, Clemente decided that she would terminate Alcaraz.
Clemente prepared the termination paperwork over the weekend and presented it to Human
Resourses Manager Ching on Monday, December 12.10 At some point Clemente also prepared
an internal memorandum containing her account of the events at the December 8 meeting that
the Company later produced to the Union pursuant to its request in January. This document does
not specify when she prepared it. (GC Exh. 21)
On Monday, December 12, Clemente intercepted Alcaraz before she started work and
took her to Ching’s office in the human resources department. There, in Ching’s presence,

8 Clemente included Spiric, the department manager, as one of Alcaraz’ supporters in her
internal memo. GC Exh. 21 Presumably, Spiric gained this distinction by failing to support the
policy that prohibited workers from speaking Tagalog among themselves.
9 Clemente claims that she never saw Alcaraz again following the mandatory meeting until
Monday, December 12, when she terminated Alcaraz. I do not credit this claim. Respondent did
not dispute that Alcaraz worked overtime on Saturday, her regular day off, and provided no
alternate explanation as to how Alcaraz came to be working on that Saturday.
10 Ching reviews all disciplinary actions to ensure consistency and compliance with the
Respondent’s policies. However, she did not independently investigate the basis for Alcaraz’
discharge; instead, this termination was based solely on Clemente’s decision.
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Clemente read the termination notice to Alcaraz because she did not have her glasses. In sum,
the termination form Clemente prepared accused Alcaraz, who had never received any prior
discipline, of discourteousness, insubordination, bullying behavior, and gossiping at the
December 8 meeting. (GC Exh. 2) After Clemente finished reading it, she asked Alcaraz to sign
the form but she refused.11
Alcaraz implored Ching to intervene to prevent her termination. However, Ching told
Alcaraz there was nothing that she could do because Clemente made the decision to terminate
her. After Alcaraz requested and obtained a copy of her discharge notice, Clemente called the
security department to escort Alcaraz while she cleaned out her locker and left.
A day or two following Alcaraz’ termination, Clemente directed the circulation of a
petition among the housekeeping department employees expressing opposition to any attempt by
Alcaraz to be reinstated to her job at the Hotel. The petition, dated December 14th, stated in part:
“This petition letter should serve as a notice stating that we are not comfortable bringing back
Juliana Alcaraz in our housekeeping department. We understand that Juliana Alcaraz may make
an attempt to be reinstated to our department but in some reason we do not foresee a positive
impact in our department.” (GC Exh. 3).
Riveral first saw the petition a day after Alcaraz’ termination. According to her credible
account, Clemente prodded Florimel Pasqua, the morning housekeeping coordinator at the time,
to give the petition to Riveral when she came to work that day and they both asked her to sign it.
Riveral disregarded their requests at the time but Pasqua gave the petition back to Riveral when
she was about to leave work. Later, Riveral gave the petition to Miriam Cantora, one of the
room attendants.
Over the course of the day, Clemente asked Riveral several times whether any employees
had signed the petition. After a few hours, Cantora returned the petition to Riveral with several
signatures on it. Riveral then returned the petition to Clemente. Clemente kept the petition in
her office. She also instructed Riveral to solicit the signatures from any of the housekeepers who
had not signed it other than the “seven angry birds.”12 In addition, Clemente even asked a couple
of employees in other departments, one in security and the other in engineering, to sign the
petition. Riveral recalled witnessing two employees sign the petition in Clemente’s office.
Eventually, Riveral herself signed the petition twice. She claimed that she did so because she
feared for her job. Eventually, according to Clemente, whose account I do not believe, a group
of employees gave the petition to the hotel manager.
Pursuant to the agreement reached in November, the first bargaining session was held on
December 14. The union agents servicing the property invited employees to attend the session
held at the Hotel but no claim is made that Local 5 and the Hotel had agreed that on-duty

11 At some point, during the meeting, Alcaraz sought to have a representative present.
Clemente claimed that she did not know what Alcaraz meant by her request.
12 Riveral identified the seven angry birds as the “Russian,” Padilla, Amy Chow, Jenie
Amoguis, Audrey Jordan-Gecain, Jovy Gecain, and Florence Miguel. The “Russian” was never
further identified. Presumably, “Padilla” refers to Andoracion Padilla.
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employees could attend. Room setup arrangements show a table provided for the parties’
negotiators and chairs arranged along the wall for others permitted to attend. The Local 5
negotiators consisted of 6 or 7 Local 5 officials and unit employees. There were 3 Hotel
negotiators, two of whom included the Hotel manager and its human resources manager.
Around the time the session was scheduled to begin, Riveral asked Clemente for
permission to attend. Clemente refused. Instead, she said that supervisor Raymond Texeria,
who was present at the time, would be attending the bargaining session. Riveral overheard
Clemente instruct Texeria take notes of what went on at the session and who attended. Clemente
instructed Riveral to get Texeria a notebook to use for this purpose.
Amy Chow, a seamstress and a unit employee, attended the negotiations as an observer.
When she saw Texeria arrive at the session, she approached him and asked what he was doing
there. Texeria told Chow that he was taking down the names of the people attending the
bargaining session. Later that evening, Riveral saw Texeria return to the housekeeping
department office and enter Clemente’s office, purportedly locking the door behind him.
Apart from Riveral’s credible account, no other reliable explanation was provided as to
what may have occurred inside the housekeeping offices before or after the December 14
bargaining session. Texeria did not testify and Clemente’s following testimony provides yet
another self-serving, contradictory, and improbable account that I do not credit:
Q. Do you remember there was a union negotiating meeting on December 14, 2011,
at the hotel?
A. Yes.
Q. Did you attend that meeting?
A. No.
Q. Do you know whether any of your supervisors attended the meeting?
A. No.
Q. Do you know whether any of your supervisors was at the meeting before it
started?
A. No.
Q. Do you know Ray Texeria?
A. Yes.
Q. Do you know whether he was at that meeting?
A. I don't know if he was in that meeting, but Ray Texeria is a public area
supervisor, and the meeting that was held at the Modern Honolulu is considered public
area location.
Q. What time did the public area attendants start their work?
A. From 2:00 from 10:00.
Q. To your knowledge, was there any agreement at that time between the hotel and
the Union about whether on-duty employees would be allowed to leave work and go
attend the meeting?
A. No, there was not.
Q. Did any of your supervisors tell you that they had attended the meeting on
December 14?
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A. Ray Texeria had asked me, Emma, I heard that Jovy was in the meeting, but she
called in sick today. But I just want to make sure if she's there and check also the public
areas in case they in a meeting and we have no replacement so I would be prepared.
And to me that's his area, and he has the responsibility to supervise to make sure
if there's not enough people around the public area then we can call the replacement. So
I said, it's your call.
Q. Did he tell you whether he was going to go over to the meeting area to see if Jovy
was in the meeting or not?
A. Yes.
Q. And did you hear back from him later what he found out, if anything?
A. Yes, he came back and said that Jovy, he confirmed that Jovy was there. And I
said, well, do you have a replacement for Jovy? At that time he told me that I think we're
good, yeah.
(Tr. 479-80; emphasis added)13
On December 15, the Union arranged for a flyer to be distributed in the Hotel’s employee
dining and locker rooms. It contained a grainy black-and-white photo taken at the December 14
bargaining session along with general information about the bargaining, and a notice that the
next session would be on January 17. (GC Exh. 8). A copy of the flyer was at the dining table
where Chow and Clemente ate lunch together that day. During their lunch, Clemente asked
Chow to identify the employees who appeared in the blurred picture on the flyer. Chow
complied with Clemente’s request using her memory of where people sat.14
Following her termination, Alcaraz attended the bargaining sessions held at the Hotel on
December 14 and January 17. (GC Exh. 13). Although the Employer apparently objected to the
size of the Union’s committee at the January 17 session, no evidence shows that it specifically
objected to Alcaraz’ presence on its premises at either occasion.
In March, the Union designated Alcaraz as a “Union Organizer.” On March 28, the
Union sent a notice to the Hotel’s chief negotiator that it had designated five individuals,
including Alcaraz, as its agents “to provide service to its membership effective immediately.”
The letter requested that the negotiator inform “all appropriate personnel of their presence at
your property.” (GC Exh. 4). The Hotel’s negotiator responded in an emailed letter on the same
day. In pertinent part, the response stated:

13 During her testimony, Jovy Gecain said that she learned of the December 8 mandatory
meeting, among other ways, at the 8:30 a.m. briefing. Hence, it is fair to infer, absent some
evidence to the contrary of which there is none, that Jovy Gecain was a day shift employee and
that her shift would have ended at 4:30 p.m. Respondent produced no business records to
support Clemente’s claim contradicting the inference warranted by Jovy Gecain’s testimony, or
showing that Jovy Gecain took sick leave that day. Texeria did not testify at all nor was his
absence explained.
14 Clemente denied Chow’s claim that the she quizzed her concerning the identity of the
people depicted in the flyer photograph. According to Clemente, she never has lunch with a
single employee, only groups of employees. I do not credit Clemente’s denial or explanation.
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Given the circumstances of Ms. Alcaraz’s termination for her insubordinate assault of
the Director of Housekeeping, the Employer is not in Agreement with allowing Ms.
Alcaraz inside the hotel. The Employer’s security personnel will be advised to deny her
access to the premises and will call the proper authorities in the event that she attempts to
enter the interior of the Hotel.
(GC Exh. 9; emphasis added).
On April 1, the Union emailed a letter replying to the Respondent characterizing the
claim that Alcaraz had assaulted Clemente as defamatory and insisting that she should be granted
access. (GC Exh. 10) Beginning in early May and continuing through the remainder of the
month, the Hotel’s chief negotiator, in series of correspondence and messages exchanged with
Local 5 in an effort to schedule a bargaining session, reconfirmed that Alcaraz would not be
granted access to the property for any session scheduled to be held at the Hotel. In all of this
correspondence, the Employer’s negotiator held fast to the position even though Local 5 pointed
out that Alcaraz had attended two bargaining sessions held at the Hotel following her
termination. For its part, the Employer made clear that it would agree to meet and negotiate at
other locations, such as the Union’s office or an office of the Federal Mediation and Conciliation
Service, if Local 5 insisted on Alcaraz’ presence. (GC Exhs. 11 – 14)
Jenie Amoguis, the morning-shift housekeeping coordinator who began working in that
position while the hotel was operated by Marriott, received two disciplinary actions from
Clemente in 2012, one in May and the other in June. She received the discipline at issue on
Tuesday, June 12, 2012. That morning at about 9 a.m. room attendant Elifer Cabudol, a recently
hired worker, complained to Clemente that Amoguis unfairly switched the room assignments
between herself and a more senior room attendant on two consecutive days so as to burden
Cabudol with extra work.
Clemente immediately summoned department manager Alex Teng and Amoguis into the
office where she questioned Amoguis about the schedule changes and, in a raised voice, accused
her of giving the more difficult work to the room attendants she did not like. Amoguis
apologized to Cabudol and attempted to explain to Clemente that she had assigned the rooms
based on a seniority system that she had learned when she first started at the hotel during the
Marriott regime. Clemente chastised Amoguis for using that system and continued to accuse her
of playing favorites. With that, Amoguis put her hand up and said, “[S]top Emma, I need
someone to be with me.” Clemente summarily dismissed the request saying, “Why? Is Elifer
not a witness? Is Alex not a witness?”15 Then Clemente continued to press Amoguis to explain
why she had switched the room assignments.
Later in the afternoon, Amoguis learned from Teng that she would receive a written
warning because of Cabudol’s complaint. She told Teng that wanted Audrey Gecain to be

15 Amoguis claimed that she wanted the assistance of linen coordinator Audrey Gecain, who
is one of the Local 5 committee persons, but the evidence does not show that she made a specific
request at this time to have Gecain called.
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present when it occurred. When Clemente called Amoguis and Teng to her office to present the
written warning, Teng told Clemente about Amoguis’ request to have Gecain present but
Clemente denied the request. Amoguis then stated that she wanted someone to be with her.
Clemente again denied her request indicating the meeting was not an investigation but rather a
write-up. In addition, Clemente told Amoguis that Gecain was on company time and that she
was working. Teng then read the warning to Amoguis. She refused their request sign it so Teng
signed it for her. Later, Teng informed Amoguis that Clemente wanted Teng to make a
statement asserting that Amoguis did not ask for representation and that he did not intend to lie
for her. Teng did not testify nor was his absence explained.16
C. Further findings, analysis, and conclusions
1. Complaint paragraphs 8(a), (c), and (d): the interrogation allegations
The General Counsel argues that Clemente’s questioning of Miguel, Gecain, and Chow
violated Section 8(a)(1).17 The General Counsel does not allege that similar questioning of
Wilma Riveral by Clemente violated the Act. Instead, counsel for the General Counsel
represented at the hearing that he had only adduced the evidence pertaining to the questioning of
Riveral in order to show Respondent’s animus. Based on this representation, Respondent’s
counsel withdrew his objection to Riveral’s testimony about being questioned by Clemente and
did not further pursue the issue. Hence, I find that this issue has not been sufficiently litigated to
support an unfair labor practice finding as to the questioning of Riveral.
Interrogation of employees violates section 8(a)(1) if, under all the circumstances, it
reasonably “tends to restrain, coerce, or interfere with rights guaranteed by the Act.” Rossmore
House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Emps. & Rest. Emps. Union, Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). In making this determination, the Board regards it
appropriate to consider the analytical factors first set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d
Cir. 1964). Medicare Associates, Inc., 330 NLRB 936, 939 (2000). Succinctly stated, the
Bourne factors include: (1) the background of employer hostility toward protected employee
activities; (2) any indications that the interrogator sought information for the purpose of taking
adverse action against individual employees; (3) the relative position of the questioner in the
company’s hierarchy; (4) the place and method of interrogation; and (5) the truthfulness of any

16 The General Counsel subpoenaed the statement that Teng provided about these June 12
events but Respondent petitioned to quash that statement and others of a similar nature. I
granted Respondent’s petition finding the Teng statement to be attorney work product based on
the representation of Respondent’s counsel that it had been prepared and submitted through
Hotel channels at his specific direction.
17 Sec. 8(a)(1) prohibits employer conduct that interferes with, restrains, or coerces
employees “in the exercise of the rights guaranteed in Section 7.” In part, Section 7 provides
that employees “have the right to self-organization, 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.”
Section 7 also guarantees employees the right to refrain from these activities but this case is not
about the right to refrain from Section 7 activities.
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employee response. However, determining whether employee questioning violates the Act does
not require strict evaluation of each Bourne factor. Instead, “[t]he flexibility and deliberately
broad focus of this test make clear that the Bourne criteria are not prerequisites to a finding of
coercive questioning, but rather useful indicia that serve as a starting point for assessing the
‘totality of the circumstance.’ ” Timsco Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C. Cir. 1987).
Certain aspects of the Bourne factors are present in each of these three episodes alleged
unlawful here; others are not. Present in all three is the fact that Clemente, the highest-ranking
management official in the housekeeping department, conducted all of the questioning in issue.18
Also, present in all three instances is the fact that each of the employees answered Clemente’s
inquiries truthfully. I find that the first of these two particular factors should be accorded far
more weight than the latter. Based on my observations of the witnesses in this case, there can be
little mistake about the significant sophistication gap that existed between Clemente and the
employees in her department, including those she questioned. Even though the employees here
answered Clemente’s probing questions honestly, I have concluded that these employees,
whether they knew it or not, had a justifiable reason to fear her inquiries, particularly Miguel and
those who may have overheard this exchange in the lockeroom.
Clemente’s questioning of Miguel exhibited pointed hostility toward employee support
for union representation, which she personalized as an affront to her own position and ability. In
this particular instance, Clemente pressed Miguel, a member of the union’s committee, in the
presence of others to justify employee support for the union and then reproached her for the
answer provided, i.e., to secure employee job security. In sum, Clemente appeared to be using
the occasion to make the point to Miguel and others nearby that, as a “good manager” she felt
offended that employees had chosen union representation. I find her conduct on this occasion
would restrain and coerce any reasonable employee such as Miguel, who actively supported
unionization, and others who might have overheard and observed Clemente on this occasion.
Likewise, I have reached a similar conclusion with respect to the Gecain interrogation. In
this instance, Clemente summoned Gecain to her office during work time for a one-on-one
meeting, ostensibly to get to know her, but which eventually led to probing this employee’s
union sympathies while alone in the locus of departmental authority. I have concluded that a
reasonable employee would be restrained and coerced by Clemente’s probing questions about a
private matter in such circumstances. This is especially true where, as here, there is no apparent
justification for the inquiry as well as other evidence showing Clemente’s hostility toward
employee support for the union.
The questioning of Chow about the specific identity of the employees who chose to
attend the bargaining session on December 14 followed immediately on the heels of her direction
to supervisor Texeria to go to the meeting and take note of the employees present at that session.
I find the two directions reflect a consistent pattern on the part of Clemente to identify the
employees interested in the ongoing union activities.

18 Clemente flatly denied that she questioned these three employees in the manner shown by
their testimony. I do not credit her denials.
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In sum, I have concluded that Clemente’s questioning in all three instances possessed a
coercive quality sufficient to violate Section 8(a)(1) as alleged in complaint paragraphs 8(a), (c)
and (d).
2. Complaint paragraphs 9(a) and (b): the surveillance allegations
Complaint paragraph 9(a) alleges that Clemente and Texeria engaged in surveillance of
employees engaged in union activities. Complaint paragraph 9(b) alleges that Clemente and
Texeria created an impression among employees that their union activities were under
surveillance by Respondent.
Where, as here, employees openly engage in protected activities on the employer’s
premises, management officials may lawfully observe those activities but they may not do
anything out of the ordinary to keep employee protected activities under watch. Albertsons v.
NLRB, 161 F.3d 1231, 1238 (10th Cir. 1998). See also The Broadway, 267 NLRB 385, 399-402
(1983) and the cases cited there. Statements by employer agents causing employees to
reasonably assume that their protected activities are under surveillance violate the Act. Tres
Estrellas de Oro, 329 NLRB 50, 51 (1999); Electro-Voice, Inc., 320 NLRB 1094 (1996).
Certain employer conduct may amount to unlawful surveillance and create the impression of
surveillance within the same set of circumstances. Seton Co., 332 NLRB 979, 981 (2000).
Respondent, relying solely on Clemente’s testimony, claims that Texeria went to the
December 14 negotiations session, held at the Hotel, for a legitimate purpose, i.e., “to see if Jovy
Gecain and any of his other employees were there so he would know if he needed to get
additional employees to ensure coverage.” (Resp. Br., p 55) I reject that contention.
In this instance, Clemente’s testimony, which I regard as generally suspect anyway, is
unsupported by other evidence obviously within Respondent’s control. This session began at
5:00 p.m. Although Clemente claimed Jovy Gecain and other public area attendants worked
from 2 to 10 p.m., Jovy Gecain’s testimony provides a strong basis for inferring that she worked
the earlier shift as she mentioned her attendance at Clemente’s 8:30 a.m. briefings held for the
first shift workers who normally finish their workday at 4:30 p.m. Respondent’s business
records would obviously resolve any possible doubts about Jovy Gecain’s normal work shift but
it chose not address this potential contradiction with its records.
In addition, Respondent chose not to use its business records to support Clemente’s
hearsay assertion that Texeria told her Jovy Gecain called in sick on December 14. Not only did
Respondent fail to provide evidentiary support for this assertion from its business records, it also
failed to call Texeria as a witness to support any of Clemente’s testimony. In these
circumstances, I conclude that Respondent’s assertions about the legitimacy of Texeria’s
December 14 mission at the bargaining session lacks credible support.
By contrast, General Counsel witnesses Riveral and Chow provided accounts that are, by
and large, mutually corroborative. Riveral said she overheard Clemente, who had no known
assignment from the Hotel management related to the bargaining, tell Texeria to take notes at the
bargaining session about who attended and what occurred. To aid him in his assignment,
Clemente instructed Riveral to get Texeria a note book. By Chow’s account, Texeria told her
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when he arrived at the negotiating session that he came because Clemente instructed him to take
note of who attended.
Both of these employee accounts provide an ample basis for concluding, as I have, that
Clemente assigned Texeria to engage in surveillance. In addition, they provide an ample basis to
conclude that Clemente’s instruction to Texeria in the presence of Riveral, and Texeria’s
statement to Chow would tend to create an impression of surveillance in the minds of these two
employees. Based on the credible employee accounts, I have concluded that the General
Counsel has proven both of the surveillance allegations by a preponderance of the evidence.
3. Complaint Paragraphs 11 and 12: the Alcaraz allegations
a. Alcaraz’ termination
Complaint paragraph 11 alleges that Respondent terminated Alcaraz on December 12
because of her protected concerted activities at the December 8 mandatory meeting, and because
of her membership in Local 5 and activities on behalf of that labor organization. Respondent
argues that even if Alcaraz engaged in protected activities at the December 8 meeting, she lost
the protection of the Act by engaging in insubordinate, disruptive conduct during the meeting
that warranted Clemente’s discharge action.
Where an employer takes adverse action against an employee for alleged misconduct
occurring in the course the employee’s protected activities, the employer has the burden of
showing that it held an honest belief that the employee engaged in serious misconduct. NLRB v.
Burnip & Sims, Inc., 379 U.S. 21, 23 (1964). If the employer meets that burden, then the
General Counsel must affirmatively show that the alleged misconduct did not occur in order to
establish that the employer violated the Act. Pepsi-Cola Co., 330 NLRB 474 (2000), citing
Rubin Bros. Footwear, Inc., 99 NLRB 610 (1952).
In this case, I find that Alcaraz engaged in protected activity at the December 8 meeting
by raising the question of gossip and the meaning of the cutting tongues metaphor used several
times by Clemente at the daily briefings. In addition to the evidence showing that she had
several discussions about this matter with other employees after Clemente addressed it at the
daily briefings, the evidence also shows that Alcaraz’ fellow workers encouraged her to take it
up at the December 8 meeting. When Clemente failed to respond to Alcaraz’ initial remarks at
the meeting with anything other than asking her to take the matter up later in private, employees
at the meeting supported Alcaraz’ effort to speak further about the subject at that time. As the
subject matter concerned an issue addressed by Respondent’s rules and Clemente’s own prior
admonitions, I find Alcaraz was engaged in activity protected by Section 7 when she attempted
to speak about the gossiping topic at the December 8 meeting. Kiewit Power Constructors Co.,
355 NLRB 708, enf. denied 652 F3d 22 (D.C. Cir. 2011)
However, even though Section 7 protects the right of employees to engage in concerted
activities, the Board recognizes that this does not mean that an employee is free to engage in an
activity with impunity. Stanford N.Y., LLC, 344 NLRB 558 (2005), citing NLRB v. City
Disposal Systems, 465 U.S.822, 837 (1984).
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When an employee is discharged for conduct that is part of the res gestae of protected
concerted activities, the pertinent question is whether the conduct is sufficiently egregious to
remove it from the protection of the Act. Stanford N.Y., supra, citing Aluminum Co. of America,
338 NLRB 21 (2002). How egregious is “sufficiently egregious”? In the following portion of its
decision in St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204-05 (2007), enfd. 519
F.3d 373 (7th Cir. 2008), the Board cited with approval this strict test:
As the Seventh Circuit explained in Dreis & Krump Mfg. v. NLRB, 544 F.2d 320 (7th Cir.
1976), “the standard for determining whether specified conduct is removed from the
protections of the Act [is] as articulated by the Board: communications occurring during
the course of otherwise protected activity remain likewise protected unless found to be
‘so violent or of such serious character as to render the employee unfit for further
service.’” Id. at 329
In making this determination, the Board examines the following factors: (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 Co., 245 NLRB 814, 816 (1979).
The circumstances that lead to Alcaraz’ discharge occurred in the department office near
the end of the December 8 departmental meeting and well after the instructional phrase of the
meeting had concluded. Respondent claims that Clemente never opened the meeting for
employee comments; employee witnesses dispute that claim. Because I regard Clemente’s
credibility highly suspect on virtually all contested issues, and because of the credible evidence
showing that other employees concurrently voiced similar, if not more hostile, complaints about
Clemente’s management style,19 I credit the employee claims that Clemente solicited employee
comments at this meeting.20 As Clemente sought employee comments about their concerns and
as the meeting occurred at a location determined by management that was away from the normal
work areas or any guest area, I find that this factor favors protection. Random Acquisitions, LLC,
357 NLRB No. 32, slip op. at 14 (noting comments were made in an office away from the work
area weigh in favor of protection); Datwyler Rubber & Plastics, Inc., 350 NLRB 669, 670 (2007)
(outburst in a breakroom away from work areas) favored protection of employee conduct.
The subject matter factor also favors Alcaraz. She attempted to open a discussion about
the admonitions concerning gossiping that Clemente raised on several occasions at daily
briefings and to learn what she meant by the reference to cutting tongues. The sole response
Alcaraz received from Clemente was to see her later in private. When Clemente ignored
Alcaraz’ effort to speak further, other employees spoke out in support of Alcaraz’ effort to speak

19 These included the purportedly disparate practice of discouraging or reprimanding
Tagalog-speaking workers from using their language when talking among themselves in contrast
to others who used their primary language without any known rebuke, Clemente’s alleged
propensity to treat employees like “kids”, and her purported displays of favoritism.
20 Although it is true that Clemente asked for the department supervisors to provide a few
laudatory words about the employees, I credit Jordan-Gecain’s recollection that they had very
little to say before Clemente solicited employee comments.
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further by insisting that Clemente to “let Juliana speak.” This fact strongly signals a shared
interest on the part of several employees for an open discussion about gossiping around the
workplace. Accordingly, I find that the subject matter favors protection. Stanford N.Y., LLC,
supra, at 559.
Finally, both the “outburst” and provocation factors also favor Alcaraz. The fact of the
matter is Alcaraz’ termination did not result from any type of “outburst” at all. As Clemente’s
internal memo given to Local 5 in January clearly shows, it resulted from the fact that Alcaraz
accused Clemente of engaging in gossiping, a subject about which Clemente herself had lectured
employees several times during the daily briefings. And this accusation only occurred because
Clemente insisted repeatedly that Alcaraz name the person or persons allegedly engaged in
gossiping, a disclosure Alcaraz expressed reluctance to make. In short, Clemente brought the
gossiping accusation for which she fired Alcaraz on herself.
Respondent’s brief makes a footnote reference to Jordan-Gecain’s testimony that Alcaraz
commented, “[W]hat is this, Communist? We can't speak anymore?” while she was seeking to be
recognized to speak again. Even assuming that it occurred, there is no indication that Clemente
heard the remark. She did not mention it in her testimony, and there is no reference to it in the
internal memo she wrote or in the statement inserted in Alcaraz’ termination form. In short,
there is no evidence that this alleged comment had any bearing on the decision to fire Alcaraz.
For the foregoing reasons, I find that Alcaraz’ conduct at the December 8 meeting did not
involve either violent conduct or any type of conduct of such serious character as to render her
unfit for further service. Accordingly, I find Respondent terminated Alcaraz for her protected
concerted activity in violation of Section 8(a)(1) as alleged. In view of this conclusion, I find it
unnecessary to consider General Counsel’s further claim that Alcaraz’ termination violated
Section 8(a)(3).
b. Respondent’s refusal to grant Alcaraz access to the Hotel as a union agent
Complaint paragraph 12 alleges that Alcaraz became a union agent in March and that
Respondent since that time has barred her from the Hotel premises and refused to bargain with
her. Respondent admits that it has barred Alcaraz from the Hotel premises because of her
“assault” on Clemente at the December 8 meeting but asserts that it is willing and has bargained
with the Union and Alcaraz at other locations.
It is well established that both unions and employers have the right to choose their
representatives for purposes of collective bargaining or performing other labor relations
activities. Absent unusual circumstances, other parties are legally obligated to deal with the
party’s chosen representative. United Parcel Service, 330 NLRB 1020 (2000). In cases of this
kind, the Board seeks to determine whether there is persuasive evidence that the presence of a
particular individual would create ill will and make good faith bargaining impossible. Neilmed
Products, Inc., 358 NLRB No. 8 (2012), fn 2, and the cases cited there.
Although the parties appear to have focused on the ability of Alcaraz to participate in the
negotiation sessions because of the Respondent’s position barring her from its premises, once she
became a union agent, Respondent’s position precluded her from performing any functions
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normally performed by Local 5 agents such as meeting and speaking with employees at their
workplace areas where other union agents are permitted. Hence, I find that Respondent’s
willingness to meet with Alcaraz anywhere but at the Hotel fails to cure this problem.
Having concluded that Respondent unlawfully terminated Alcaraz, I find it cannot justify
barring her from its premises in her capacity as a union agent. Respondent failed to show that
Alcaraz assaulted Clemente at the December 8 meeting as claimed or at any other time.
Furthermore, Respondent has failed to provide any persuasive evidence that Alcaraz’ presence
on its property to perform the functions of a union agent would “create ill will and make good-
faith bargaining impossible. Accordingly, I find that Respondent violated Section 8(a)(5) by
barring Alcaraz from its property for the purpose of performing the usual and ordinary functions
as a designated agent of Local 5.
4. Complaint paragraph 10: Jenie Amoguis and the Weingarten issue
Complaint paragraph 10 alleges that Respondent violated Section 8(a)(1) by denying
Amoguis’ request to be represented by the Union during the June 12 interview that she had
reasonable cause to believe would result in disciplinary action against her. The General
Counsel’s brief makes clear that this allegation pertains only to the first Amoguis interview
conducted by Clemente that day. (GC Br., at 45-47) Respondent contends that Amoguis did not
request union representation and, assuming she did, she did not do so until “all investigatory
aspects of the meeting were over.” (Resp. Br., at 56)
Amoguis’ account, which I credit, reflects that Clemente made harsh demands for
Amoguis to explain Cabudol’s room cleaning assignments from the outset. In the midst of this,
Clemente reminded Amoguis that she had been warned before. Accordingly, I find that the tone
and atmosphere of the interview along with the reference to a warning given to Amoguis the
month before provided a reasonable basis for her to conclude that the interview might result in
disciplinary action. When this potential result became apparent to her, Amoguis requested to
have “someone” present. Respondent’s assertion that the investigatory aspect of the meeting had
concluded by that point lacks merit in view of the credible evidence showing that Clemente
scoffed at the request and continued demands that Amoguis explain the basis for the room
cleaning allocations she made among the room attendant staff.
In my judgment, the credible evidence on this issue shows that Clemente violated 8(a)(1)
in this instance. Amoguis’ request that morning to have “someone” present was sufficient to
invoke her Weingarten rights. General Die Casters, Inc., 358 NLRB No. 85 (2012). Because she
failed to permit Amoguis to obtain the presence of a representative or terminate the interview, Clemente
interfered with Amoguis’ Section 7 rights. General Motors Corp., 251 NLRB 850, 857 (1980), enfd. in
part and enf. denied in part 674 F.2d 576 (6th Cir. 1982).
CONCLUSIONS OF LAW
1. By coercively interrogating its employees about their activities or sympathies on behalf
of Local 5 ; by engaging in surveillance of its employees’ union activities and creating the
impression among its employees that it was engaged in surveillance of its employees activities
on behalf of Local 5; by refusing Jenie Amoguis’ request for representation during an
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investigatory interview on the morning of June 12, 2012; and by discharging Juliana Alcaraz on
December 12, 2011, Respondent engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By denying Juliana Alcaraz access to the Hotel in her capacity as an agent of Local 5
after March 28, 2012, Respondent engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
My recommended order requires Respondent to offer Juliana Alcaraz reinstatement to her
former position, or if that position no longer exists to a substantially equivalent position and
make her whole for any loss of earnings and other benefits she suffered as a result of her
unlawful termination on December 12, 2011. Backpay for Alcaraz shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No 8 (2010), enf. denied on other grounds sub.
nom., Jackson Hospital Corp. v NLRB, 647 F.3d 1137 (D.C. Cir. 2011). In accord with Latino
Express, Inc., 359 NLRB No. 44, my recommended order also requires Respondent to (1) submit
the appropriate documentation to the Social Security Administration (SSA) so that when backpay
is paid to Alcaraz, it will be allocated to the appropriate calendar quarters, and/or (2) reimburse
her for any additional Federal and State income taxes she may be assessed as a consequence of
receiving a lump-sum backpay award covering more than 1 calendar year.
My recommended order also requires Respondent to expunge from its records any
reference to Alcaraz’ termination, and to notify her in writing that this action has been taken and
that any evidence related to her unlawful termination will not be considered in any future
personnel action affecting her. Sterling Sugars, Inc., 261 NLRB 472 (1982).
Finally, my recommended order requires Respondent to post the attached notice to
employees (see “Appendix”) as provided in J. Picini Flooring, 356 NLRB No. 9 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended21
ORDER
The Respondent, Modern Management Services, LLC, d/b/a The Modern Honolulu,
Honolulu, Hawaii, its officers, agents, successors, and assigns, shall

21 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.
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1. Cease and desist from
a. Coercively interrogating its employees concerning their activities or sympathies on
behalf of UNITE HERE!, Local 5 (Local 5).
b. Engaging in surveillance of, or creating the impression that it was engaged in
surveillance of, employee activities on behalf of Local 5.
c. Refusing its employees request for representation at investigatory interviews where the
employee had reasonable cause to believe the interview could lead to disciplinary action.
d. Discharging its employees for engaging in concerted activities protected by Section 7
of the Act.
e. Refusing to grant access to agents designated by Local 5 in accord with the customary
practice it has followed since recognizing that labor organization as its employee representative.
f. 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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a. Grant access by duly designated Local 5 agents to its property in accord with the
practice followed since it recognized that labor organization as a representative of its employees.
b. Within 14 days from the date of the Board’s Order, offer Juliana Alcaraz full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
c. Make Juliana Alcaraz whole in the manner set forth in the Remedy section, above, for
her loss of earnings and other benefits that resulted from her discharge on December 12, 2011.
d. Within 14 days from the date of the Board’s Order, remove from its files any reference
to Juliana Alcaraz’ unlawful discharge, and within 3 days thereafter notify her in writing that this
has been done and that her December 12, 2011, discharge will not be used against her in any way
in future personnel actions.
e. Within 14 days after service by the Region, post at the Modern Honolulu Hotel in
Honolulu, Hawaii, copies of the attached notice marked “Appendix.”22 Copies of the notice, on
forms provided by the Regional Director for Region 20, after being signed by the Respondent’s

22 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.”
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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. 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 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 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
November 2011.
f. Within 21 days after service by Region 20, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply with this Order.
Dated: Washington, D.C., January 23, 2014
_______________________
WILLIAM L. SCHMIDT
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively interrogate our employees concerning their activities or sympathies
on behalf of UNITE HERE!, Local 5 (Local 5).
WE WILL NOT engage in surveillance of, or create the impression that we are engaged in the
surveillance of, your activities on behalf of Local 5.
WE WILL NOT refuse your request for representation at investigatory interviews if there is
reasonable cause to believe the interview could lead to disciplinary action.
WE WILL NOT discharge you for engaging in concerted activities protected by of the Act.
WE WILL NOT refuse to grant access to the Hotel by agents Local 5 designates in accord with
the customary practice we have followed since recognizing Local 5 as your representative.
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.
WE WILL grant access to the Hotel by any duly designated Local 5 agent in accord with the
practice followed since we recognized Local 5 as your representative.
WE WILL offer Juliana Alcaraz full reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
WE WILL make Juliana Alcaraz whole for her loss of earnings and other benefits that resulted
from her discharge on December 12, 2011.
WE WILL remove from our files any reference to Juliana Alcaraz’ unlawful discharge, and
notify her in writing that this has been done and that her December 12, 2011, discharge will not
be used against her in any way in future personnel actions.
Modern Management Services, LLC,
d/b/a The Modern Honolulu
(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 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.
300 Ala Moana Boulevard, Room 7-245
Honolulu, Hawaii 96850-4980
Hours 8 a.m.-4:30 p.m.
808-541-2814.
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’S
COMPLIANCE OFFICER, 808-541-2815.