New Otani Hotel & Garden

National Labor Relations Board - Board Decisions

Jun 17, 1998

325 N.L.R.B. 928 (N.L.R.B. 1998)

928
325 NLRB No. 168
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We affirm the judge’s conclusion that the General Counsel has
failed to meet his burden of proving that the discharge of three
housekeepers violated Sec. 8(a)(3). We do not rely on, however, the
judge’s suggestion that direct evidence of animus is a requisite ele-
ment of the General Counsel’s case or that unlawful motivation may
not be proven by an inference drawn from evidence of blatantly dis-
parate treatment. The Board has repeatedly stated both that, ‘‘[u]nder
certain circumstances, [it] will infer animus in the absence of direct
evidence’’ and that evidence of a ‘‘blatant disparity is sufficient to
support a prima facie case of discrimination.’’ Fluor Daniel, Inc.,
304 NLRB 970, 970–971 (1991). Also see NLRB v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967). In the present case, the record
as a whole does not warrant any inference of antiunion motivation
for the discharges.
1 The motion to reopen the record, which arrived as this decision
was in the final stages of preparation, is signed by Jennifer Skurnik,
a staff representative of the Charging Party (the Union), who also
appeared as the Union’s trial representative. In substance, Ms.
Skurnik avers that the Union has recently obtained evidence of cer-
tain events arising in May and June 1997 (events that are specified
to a limited degree in an offer of proof) which, she argues, would
tend to show that the three alleged discriminatees here were the vic-
tims of ‘‘disparate treatment’’ when they were fired some 30 months
earlier, on February 21, 1995.
2 All dates below are in 1995 unless I say otherwise.
3 Affiliated with Hotel Employees and Restaurant Employees Inter-
national Union, AFL–CIO.
4 The firing of the three housekeepers was the only target of the
original and amended charges. Indeed, the amended charge was
identical to the original charge except that it identified both the Re-
spondent and an entity called ‘‘East West Development Corp.’’ as
the ‘‘Employers.’’
5 In pertinent part Sec. 8(a)(3) makes it unlawful for an employer
to ‘‘discriminat[e] in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage mem-
bership in any labor organization.’’
Sec. 8(a)(1) outlaws employer actions and statements that ‘‘inter-
fere with, restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7 . . . .’’ (Sec. 7 declares pertinently that
‘‘[e]mployees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection[.]’’)
The New Otani Hotel & Garden and Hotel Employ-
ees and Restaurant Employees Union, Local 11,
Hotel Employees and Restaurant Employees
International Union AFL–CIO. Case 21–CA–
30841
June 17, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
On August 7, 1997, Administrative Law Judge Tim-
othy D. Nelson issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
and supporting briefs.
The National Labor Relations Board has delegated
its authority in this matter to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Ami Silverman, Esq., for the General Counsel.
R. DeWitt Kirwan and Michael J. Crowley, Esqs. (Pillsbury
Madison & Sutro), of Los Angeles, California, for the Re-
spondent.
Jennifer Skurnik, Staff Director, Local 11, of Los Angeles,
California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
this unfair labor practice prosecution in 4 consecutive days
of trial proceedings held in Los Angeles, California, ending
on October 3, 1996. The General Counsel and the Respond-
ent thereafter filed thorough and helpful posttrial briefs. I
deny the Charging Party’s motion to reopen the record, dated
July 24, 1997, and received in my office on July 29, 1997.1
My reasons are set forth in the memorandum opinion, I have
appended to this decision, which is probably best digested
only after first reading this decision.
The case arose and came to trial as follows: On February
21, 1995,2 the New Otani Hotel and Garden (the Respond-
ent), discharged three of the its longtime housekeeping em-
ployees, Ana Alvarado, Margarita Salinas, and Juventina
Barajas. The Respondent’s asserted reason was that it had
concluded after investigation that the three workers had been
mutually involved in violating the Respondent’s well-known
prohibition against one employee’s punching-in another’s
timecard, an illicit practice that I will usually refer to below
for shorthand purposes as ‘‘proxy-punching.’’
Nearly 6 months later, on August 7, Hotel Employees and
Restaurant Employees Union, Local 113 (the Union) filed an
unfair labor practice charge over these dismissals. (The
Union amended that charge in an insignificant respect on
August 11.4) On April 30, 1996, following an 8-month pe-
riod of investigation and consideration, the Regional Director
for Region 21 issued a complaint and notice of hearing in
the name of the General Counsel of the National Labor Rela-
tions Board, alleging that the firing of the three workers in-
volved unlawful discrimination against them because of their
union activities, and thereby violated Section 8(a)(3) and, de-
rivatively, Section 8(a)(1) of the National Labor Relations
Act.5 The complaint alleges no other violations.
The Respondent has always denied that it fired the three
for unlawful reasons, or for any reasons other than its origi-
nally asserted reasons. But the Respondent admits in its
original or amended answer, and I find, that the original
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929NEW OTANI HOTEL & GARDEN
6 The Respondent’s answer avers as an affirmative defense under
Sec. 10(b) of the Act that ‘‘[m]aintenance of this action is barred
to the extent that the Union seeks relief for any alleged unfair labor
practices . . . which did not accrue within six months before the
commencement of this action.’’ This defense is obviously couched
in the conditional mood, and the Respondent has never directly ar-
gued that the Union’s charge, i.e., the procedural event that marked
the ‘‘commencement of this action,’’ was not filed and served within
the 6 months limitations period prescribed in Sec. 10(b). Because the
Respondent admits that the discharge of the employees occurred on
February 21, and that the charge was filed on August 7 and served
on August 8 (i.e., with about 13 days to spare before the expiration
of the limitations period), I find that the complaint is not barred by
Sec. 10(b).
The Respondent’s answer also avers as affirmative defenses that
the complaint is barred by (a) the Union’s ‘‘failure to exercise due
diligence in discovering the facts underlying the alleged claims’’; (b)
‘‘laches’’; (c) ‘‘unclean hands,’’ and (d) ‘‘estoppel.’’ The Respond-
ent introduced no evidence to support any of these claims, has never
particularized them, and, indeed, appears to have abandoned them.
Accordingly, I will not address them further.
7 The Respondent’s answer further admits, and I find, as follows:
The Respondent, a California corporation, owns and operates the
New Otani Hotel and Garden in Los Angeles. In the year ending De-
cember 12, 1995, its gross revenues from that operation exceeded
$500,000. In the same period it purchased and received more than
$50,000 worth of goods directly from points outside California.
8 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
9 For reasons separately discussed below, my main findings will
not address the question of the alleged discriminatees’ actual guilt
or innocence of proxy-punching. In addition, my main findings will
not address, except in one instance, the evidence on which the Gen-
eral Counsel relies to argue that the Respondent bears an antiunion
‘‘animus,’’ nor the evidence cited by the prosecution for the propo-
sition that the alleged discriminatees were the victims of ‘‘disparate
treatment.’’ I will make supplemental findings bearing on those latter
questions as part of my concluding analyses.
Unless I specify otherwise, all of my findings in this decision are
based on essentially undisputed testimony and documents of record.
Moreover, except as I may note otherwise, my findings are substan-
tially echoed in the versions of the facts variously set forth in both
the General Counsel’s and the Respondent’s posttrial briefs, even
though their terms of characterization may not always match my
own. To the extent I do not comment about certain facts or alleged
facts urged by either party on brief, it is either because I was not
persuaded by the underlying testimony or because I regard such facts
as irrelevant or merely cumulative.
10 The undisputed record, unnecessary to detail, shows that the rule
against proxy-punching is one of several rules maintained by the Re-
spondent relating to timeclock procedures and honesty in the keeping
of time records, and that the rule in its presently worded form went
into effect on September 1, 1993, after the Respondent introduced
new timeclocks and associated procedures in March 1993. Moreover,
the record shows that the rule was well publicized to employees in
various staff meetings conducted in advance of its effective date,
that, since then, copies of the rule (printed in English, Spanish, and
Japanese texts) have been more or less continuously posted near the
four timeclocks in the hotel, including on the B–1 level, and that the
alleged discriminatees, like the rest of the hourly workers, were, in
fact, aware of the rule, not least because each had been given copies
of the timeclock rules and procedures, printed in Spanish, and they
had each signed an ‘‘agreement’’ acknowledging that they had re-
ceived and read those copies.
11 Although one element of the job of floor supervisor is appar-
ently to make sure that the room maids have properly cleaned the
rooms on the floors for which the floor supervisors are responsible,
the Respondent does not contend that floor supervisors exercise any
powers that would make them ‘‘supervisors’’ within the meaning of
Sec. 2(11) of the Act. Accordingly, I will assume that Alvarado, like
Salinas and Barajas, operated at all times under the protections af-
forded by the Act to ‘‘employees.’’
charge was served on it by certified mail on August 8,6 that
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act,7 and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
On my study of the whole record, the parties’ briefs, and
my assessments of the credibility of the witnesses and the in-
herent probabilities, I will judge, employing a Wright Line
analysis,8 that the General Counsel’s showing was insuffi-
cient to persuasively establish that the union activities of the
three housekeepers were a motivating factor in the Respond-
ent’s decision to fire them. Therefore, I will dismiss the com-
plaint on this basis, without reaching the question whether
the Respondent has adequately demonstrated in any case that
it would have discharged the three workers even if they had
not been involved in union activities.
Main Findings9
I. THE WORKPLACE AND THE CENTRAL ACTORS
The Respondent operates a hotel and restaurant complex,
the New Otani, in the ‘‘Little Tokyo’’ area of downtown Los
Angeles. In early 1995 it had a total staff of about 350 per-
sons, of which about 275 were hourly paid employees who
worked in various departments associated either with hotel
services or with the several restaurants and bars in the hotel.
Kenji Yoshimoto was the general manager of the combined
hotel and food and beverage operation, a position he had
held for about 10 years as of early 1995.
No employee of the New Otani may be discharged without
Yoshimoto’s personal approval and authorization, and it was
Yoshimoto who made the decision on February 21 to fire
housekeeping department workers Ana Alvarado, Juventina
Barajas, and Margarita Salinas for their supposed violation of
the rule against proxy-punching. (The rule in question is sim-
ple: ‘‘Employees punch only their own cards. Violators are
subject to immediate dismissal.’’ Moreover, the record over-
whelmingly shows that the rule has been well publicized and
that the three alleged discriminatees were quite aware of
it.10) In the same period, Dorthea Balabus was the Respond-
ent’s director of human resources. Balabus reported directly
to Yoshimoto, as did the directors of about six other main
departments. Balabus was the leading figure in an investiga-
tion into the alleged proxy-punching by the three house-
keepers, and it was she who reported the results to
Yoshimoto, who concurred in her opinion that the trio was
guilty of proxy-punching and in her recommendation that
their dismissal was the appropriate penalty.
The three alleged discriminatees had each worked in the
housekeeping department for about 16 years. At material
times their immediate supervisor was Pat Chui, the executive
housekeeper. A total of about 64 employees worked in
housekeeping in early 1995-some, like Salinas and Barajas,
as room maids; some, like Alvarado, as floor supervisors11;
and some in various other capacities. One of these latter was
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930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 No one claims that Reyes had Sec. 2(11) powers, nor does the
record suggest it.
13 By contrast, see NLRB v. Burnup & Sims, 379 U.S. 21, 23
(1964), where the Supreme Court, affirming the analytical scheme
used by the Board in Rubin Bros. Footwear, 99 NLRB 610, 611
(1952), held that the disciplining or discharge of an employee for
supposed misconduct ‘‘in the course of’’ engaging in statutorily pro-
tected activity will be found to violate Sec. 8(a)(1), without regard
to the honesty of the employer’s belief of misconduct, if the General
Counsel establishes that the employee ‘‘was not, in fact, guilty of
that misconduct.’’ See also, e.g., Ideal Dyeing & Finishing Co., 300
NLRB 303 (1990), echoing and reaffirming this rationale, and fur-
ther holding that the Court’s reasoning ‘‘extends to all cases in
which employees are erroneously disciplined or discharged because
of alleged misconduct arising out of protected activities that are
known to the employer.’’
Here, however, there is not the slightest suggestion from any quar-
ter that the ‘‘misconduct’’ attributed to the three housekeepers, their
alleged proxy-punching, occurred ‘‘in the course of,’’ or ‘‘arose out
of,’’ any activity protected by the Act.
14 The Board announced in Wright Line (251 NLRB at 1089), that
it would,
henceforth employ the following causation test in all cases alleg-
ing violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, we shall require that the
General Counsel make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating fac-
tor’’ in the employer’s decision. Once this is established, the
burden will shift to the employer to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct.
15 ‘‘In assessing allegations that conduct directed against employ-
ees ha[s] been unlawfully motivated, the crucial inquiry must be di-
rected to the state of mind of the official who made the decision[.]’’
Advanced Installations, Inc., 257 NLRB 845, 854 (1981), and au-
thorities cited. See also, e.g., Guarantee Savings & Loan, 274 NLRB
676, 678–679 (1985).
Marcos Hernandez-Reyes, a ‘‘lead’’ utility houseman,12 and
another worker of lengthy tenure, having worked at the New
Otani for nearly 15 years at the time the three housekeepers
were fired. It was Reyes’ initial report to Chui on February
15 that he had just seen Salinas punch in the timecards of
other workers that set in motion a brief preliminary inves-
tigation by Chui, soon followed by Balabus’ review and by
Yoshimoto’s decision to discharge not only Salinas, but Al-
varado and Barajas as well.
II. THE EVENTS OF FEBRUARY 15 THROUGH 21
A. Introduction
It’s worth noting immediately that the three alleged
discriminatees denied, both during Chui’s and Balabus’ inter-
views with them, infra, and as witnesses in this trial, that Sa-
linas had done what Reyes claimed to have seen her do on
February 15. Rather, each has insisted that she punched her
own card that day, and that Reyes was lying. And it seems
to have been important to both parties in the trial to litigate
the question of the trio’s actual guilt or innocence in the mat-
ter, even though neither party has articulated on brief any ar-
gument as to why the answer to the question can matter to
the outcome of this case. Thus, the General Counsel and the
Respondent each sought to prove through some of their wit-
nesses what it was that Reyes did or did not see, or what
it was that the three housekeepers did or did not do, in the
minutes before Reyes brought his report to Chui. However,
for reasons I discuss next, I judge that the question of the
three housekeepers’ actual guilt or innocence, although clear-
ly and understandably important to them and to anyone else
interested in simple justice in the workplace, is essentially ir-
relevant to the question of the Respondent’s guilt or inno-
cence of the unfair labor practice it is charged with commit-
ting.
Everyone agrees that Reyes did, in fact, make what proved
to be a fateful report that he had seen Salinas punch in the
cards of others. But there is no suggestion in the General
Counsel’s arguments that Reyes’ report was simply part of
some charade, prearranged, somehow, between Reyes and the
Respondent’s agents, to supply a phony reason for firing the
three alleged discriminatees; indeed, the record contains no
evidence that reasonably would allow an inference that any
such conspiracy existed. Nor has the General Counsel sought
to show that Reyes’ report traced from some personal grudge
against the trio or any one of them, much less to show that
the Respondent’s actors knew or should have known that his
report was inspired by a personal grudge or by any other ul-
terior motive, if, indeed, it was. In any case the record shows
without dispute that it was Reyes’ unsolicited report that trig-
gered the Respondent’s investigation, and that this report,
whether truthful or not, was, in fact, believed and relied on
in turn by Chui, Balabus, and Yoshimoto as a central consid-
eration in their common judgment that the trio was guilty of
proxy-punching.
Moreover, although the prosecution brief makes what I re-
gard as inconclusive collateral attacks on the quality of the
‘‘investigations’’ conducted, in turn, by Chui and Balabus in
the aftermath of Reyes’ report, the prosecution’s ultimate
claims in this case depend not at all on a finding that Reyes’
report about Salinas was, in fact, a false one, or that the al-
leged discriminatees each did, in fact, punch in their own
timecards after lunch on February 15, nor even on a finding
(which I could not make on this record in any event) that
any arguable deficiencies in Chui’s and Balabus’ investiga-
tions were traceable to antiunion animus. Rather, the General
Counsel’s ultimate argument is that even though Yoshimoto
may have genuinely believed that the trio was guilty of
proxy-punching, their supposed misconduct would not alone
have accounted for Yoshimoto’s ‘‘draconian’’ decision to
fire them, absent a supposed hostility to their having partici-
pated in union activities.
In short, the outcome of this case does not turn on whether
the trio-or any one of them-was or was not guilty, ‘‘in fact,’’
of the misconduct for which they were assertedly dis-
charged.13 Instead, as all parties recognize, this is a case
which ‘‘turns on employer motivation,’’ and therefore re-
quires analysis according to Wright Line’s teachings.14
Here, as all parties likewise recognize, it is ultimately
Yoshimoto’s motives on which we must focus, because he
made the decision to fire the trio.15 And it is clearly relevant
to assessing Yoshimoto’s motives to determine in the first in-
stance whether or not he honestly believed that the three
were commonly guilty of proxy-punching. Thus, if the record
reasonably allowed a finding that Yoshimoto did not have
such an honest belief, this would suggest an ulterior motive,
and this, in turn, might go some distance toward satisfying
the General Counsel’s Wright Line burden of showing that
the ulterior motive was an unlawful one. But I am satisfied
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931NEW OTANI HOTEL & GARDEN
16 For findings in this section, I rely primarily on the harmonious
and coherent accounts of company-tendered witnesses Chui, Reyes,
Vasquez, and Balabus. The three housekeepers’ respective versions
of their involvement in some of the events described below are
mostly harmonious with those of the Respondent’s witnesses, and
never wildly at variance with the latter; however, the versions of-
fered by the alleged discriminatees were decidedly more confused
and impressionistic, and as to many details, mutually contradictory.
Accordingly, I would not rely on any feature in the accounts of any
of the three housekeepers to the extent that they are at odds with
my findings.
17 It is probable, based on timecard records reviewed infra, and on
both Reyes’ and Chui’s harmonious, credible, and uncontradicted ac-
counts of the immediately ensuing events, infra, that Reyes’ arrival
in Chui’s office occurred within a minute of the point when the
nearby timeclock had ticked-over from 1:25 to 1:26.
18 Reyes specifically testified that, just before entering Chui’s of-
fice with his report, he passed Salinas in the hallway just as she was
punching in one timecard, then saw her replace the first timecard in
the rack and pull out two more timecards, which he both saw and
heard her punch in on the timeclock. What remains unclear is wheth-
er he described these observations with the same degree of specific-
ity when he made his initial report to Chui.
19 The relevant timecards of the trio (and those of many other
housekeeping employees covering the same 2-week period) are in
evidence as joint exhibits. (Alvarado’s card is JX 2; Barajas’ is JX
3; Salinas’ is JX 6.) I have compared the latter three cards and reach
the same conclusion Chui did—that on the 9 days preceding Feb-
ruary 15 when the trio worked together, their lunchtime punchout
and punch-in times were literally identical in most cases, and vir-
tually identical (i.e., within 1 minute of one another) in the rest of
the cases.[*]
[*] I have disregarded an apparent anomaly unique to the February
7 entry on Salinas’ card: It appears to show ‘‘1:17’’ as her punchout
time even while showing ‘‘1:11’’ for her punch-in time. (The Feb-
Continued
that the evidence overwhelmingly supports a finding that
Yoshimoto honestly believed, based on reports he had no ap-
parent basis for doubting, that the employees were guilty of
complicity in a proxy-punching arrangement. And while this
finding is not dispositive of the discrimination issue, it serves
at least to shift the contest, and the nature of the General
Counsel’s burden, to a different arena, where, to prevail even
at the threshold, the General Counsel must make a showing
by a preponderance of credible evidence that, despite
Yoshimoto’s honest belief of their misconduct, his decision
to fire the three was nevertheless tainted in some manner by
their prior union activities. (Indeed, as I have already noted,
this is the General Counsel’s ultimate argument-that
Yoshimoto’s ‘‘draconian’’ decision to fire them, rather than
impose some lesser punishment, or none at all, was tainted
by his supposed hostility to their union activities.) Again,
however, absent a showing never made here that Yoshimoto
was, in fact, on notice of some evidence that would warrant
doubt about the truthfulness of Reyes’ report—or some other
evidence independently tending to corroborate the trio’s
claim of mutual innocence—it cannot be relevant to the
question of his motives that perhaps, in fact, the trio was in-
nocent, after all.
Accordingly, in the circumstances described above, I deem
it unnecessary to decide the question of whether or not, in
fact, the trio, or any one of them, was guilty of the proxy-
punching reported by Reyes. Rather, my findings in this sec-
tion will focus instead on what it was that Reyes reported
to Chui, and on what it was that Chui, Balabus, and
Yoshimoto did about the report thereafter. And these are
matters about which there is no material dispute among the
parties, even though their respective witnesses had predict-
ably variant memories as to many details.
B. February 1516
Shortly before 1:30 p.m. on February 15, utility houseman
Reyes entered Executive Housekeeper Chui’s office, located
on the ‘‘B-1’’ basement level of the hotel, near the timeclock
used by the housekeeping employees, among others.17 He
then asked Chui in halting and awkward English if she
thought it was ‘‘fair’’ to the other employees for one worker
to punch another’s timecard, and soon communicated to her
that he had just seen Salinas punching in the cards of more
than one other worker. (Perhaps he specified that Salinas had
punched in the timecards of ‘‘two other workers’’;18 but he
did not claim to have seen the names on any of the cards
he had seen Salinas punch in.) Chui asked Reyes if he was
sure about what he had seen, and he said he was. Chui and
Reyes then went to Chui’s office doorway and looked down
the hall toward the timeclock. They saw Salinas standing
near the timeclock, and also saw another housekeeper, Mar-
garita Ochoa, walking from the timeclock toward the nearby
entrance to the women’s locker room.
Chui waited briefly until Salinas, too, walked into the
locker room; then Chui went to the timecard rack and began
to pull timecards from it, scanning first for cards that showed
punch-in times proximate to the one on Salinas’ card, which
itself showed a punch-in at 1:25. (It is evident from Chui’s
focus, and I find, that Chui was proceeding on the belief that
Reyes had, in fact, seen Salinas punching in others’ cards.)
Chui eventually pulled three other cards that seemed to fit
the parameters of her search, those of Alvarado, Barajas, and
Ochoa, each of which showed punch-in times of 1:26. (Be-
cause the timeclock registers time only to the minute, Chui
reasoned that Salinas could well have punched in her own
card only seconds before the timeclock moved from 1:25 to
1:26, and then punched in the others’ cards only seconds
after that moment.)
In the next 30–45 minutes, Chui spent most of her time
first making photocopies of all the 64 timecards in the rack,
and then reviewing these copies, with particular attention to
the 4 timecards she had initially retrieved from the rack, in-
cluding Ochoa’s. However, the fact that Chui had seen
Ochoa in the vicinity of the timeclock immediately after first
hearing Reyes’ report made Chui doubt that Salinas or any-
one else had punched in Ochoa’s card for her. And this, cou-
pled with other considerations discussed next, soon led Chui
to exclude Ochoa as a suspect in a proxy-punching scheme
and to focus more closely on Alvarado and Barajas as the
likely ones whose cards Reyes had seen Salinas punch in.
Thus, whereas Ochoa’s card had been punched out for lunch
at 1:04 p.m., the cards of Salinas, Alvarado, and Barajas
showed identical punchout times of 12:59 p.m., suggesting
that the suspect trio had all gone to lunch together that day
(as, in fact, they had, which was their typical practice when
they worked the same shift, as Chui knew). Beyond that, on
further review of the lunchtime punchouts and punch-ins of
the suspect trio over the previous 2 weeks, Chui noticed that
these times were virtually identical on each of the days the
three had worked together.19 She also noticed, by contrast,
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932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ruary 7 entries on Alvarado and Barajas’ cards, by contrast, show
identical punchout times of ‘‘1:01’’ and punch-in times (like Sali-
nas’) of ‘‘1:11.’’)
20 Again, I have examined Ochoa’s timecard (JX 5), and I concur
in Chui’s observation that it does not in any way fit the pattern Chui
had detected in the timecards of the suspect trio.
21 Of course I recognize that, in hindsight, and viewed from afar,
there was a circular quality to some features of Chui’s professed rea-
soning of the moment. Thus, it is easy to infer that Chui’s awareness
that the three housekeepers were constant lunchtime companions in-
fluenced her focus on Salinas and Barajas as the likely beneficiaries
of any proxy-punching Salinas might have done, and likewise influ-
enced her doubt that Ochoa would be involved. And if this is so,
it can be argued quite plausibly that the 2-week ‘‘pattern’’ of nearly
simultaneous punchouts and punch-ins that Chui detected in the
timecards of the suspect trio would have no independent probative
significance to Chui, precisely because she already knew that the
three customarily took lunchbreaks together, and, therefore, their
timecards could be expected to show the same ‘‘pattern’’ even if
there had been no proxy-punching among them. But this objection,
however valid, does not persuasively show that Chui’s reasoning,
however flawed, was not her actual reasoning at the time. Much less
would it reasonably support the inference that any flaws in Chui’s
reasoning traced from antiunion hostility toward the three. (As I dis-
cuss later, there is only the slenderest basis in the record-an equivo-
cal remark made by Chui to Alvarado during an otherwise positive
appraisal session nearly 8 months earlier—for inferring that Chui
harbored any personal animus against workers in her department
who may have favored the Union.) In any event, I think any flaws
in Chui’s professed chain of reasoning are best explained by her
genuine belief from the start in the truthfulness of Reyes’ report,
which caused her to proceed on the assumption that Salinas had, in
fact, just proxy-punched at least two timecards other than her own,
and which left in Chui’s mind only one question to be answered:
Whose cards had Salinas punched other than her own?
22 The alleged discriminatees recalled having only one meeting
with Chui that day, at about ‘‘4:15,’’ at which time, they say, the
events occurred that I will find occurred in an initial meeting at
2:15. The three housekeepers further recalled that at this meeting
they also received, but refused to sign, the ‘‘warning notices,’’ infra.
I find instead that Chui met twice with the trio that day, first at
about 2:15—when, as narrated below, she confronted them and
brought in Reyes to reaffirm his accusation against Salinas—and
next at about 4:15–4:30, when, on Balabus’ instructions, Chui called
the trio back to the office and gave them the warning notices and
advised them of their suspension pending further investigation. I rely
on Chui’s, Reyes’, and Balabus’ memories of the timing and se-
quence of events that day, and on my own sense of the probabilities.
I am persuaded that the three housekeepers were simply mistaken in
recalling that there was only one meeting with Chui, and that in their
memories, they have simply merged the events of two meetings into
one. It is not uncommon for witnesses to do this, and the fact that
the three seem to have been common victims of this phenomenon
does not by itself suggest to me that they, or any one of them, were
consciously lying. However, this and similar confusions or contradic-
tions in their respective accounts, does cause me to doubt the reli-
ability of some of their memories of the details occurring within the
two meetings.
23 Chui was born in China, and grew up speaking both the Man-
darin and Cantonese dialects; she speaks English with reasonable
fluency, however, and English is the language she normally uses in
the workplace. She admittedly has little competence in Spanish.
24 While these points are of only incidental interest, they illustrate
the degree of variance in the memories of each witness as to tangen-
tial details: First, Salinas claimed that after she called Reyes a
‘‘liar’’ in Spanish, Reyes then replied in Spanish, ‘‘Shorty [accord-
ing to the diminutive Salinas, this was Reyes’ customary nickname
for her] they saw you, they did, through video,’’ which Salinas as-
sumed was a reference to a security video camera mounted on a
hallway wall not far from the timeclock. Alvarado, too, recalled that
Reyes, addressing Salinas as ‘‘Shorty’’ (i.e., as ‘‘Chaparra,’’ the
Spanish-feminine counterpart to the English nickname ‘‘Shorty’’)
warned her that she had been caught on ‘‘videotape.’’ Reyes, how-
ever, denied having such an exchange about a videotape with Sali-
nas, and further denied that he had ever referred to Salinas as
‘‘Chappara.’’ Reyes did vaguely recall, however, that Chui may have
made some reference to the video camera, and this is perhaps con-
sistent with the mutual recollections of Salinas and Alvarado that
one of them asked to see the supposed videotape and that Chui dis-
missed this request by saying that the video wasn’t ‘‘important.’’
But to complicate the issue further, Barajas recalled that Chui said
(as translated by Vasquez into Spanish) that there was no video of
the alleged events. Chui is sure, however, that the subject of the
that Ochoa’s timecard entries for the same period did not
conform with this pattern.20 The apparent pattern disclosed
by the suspect trio’s timecards not only reinforced Chui’s be-
lief that Reyes had been truthful in his initial report, but led
her to suspect, moreover, that the trio may have been mutu-
ally involved in a more longstanding proxy-punching ar-
rangement.21
Chui then summoned Salinas, Alvarado, and Barajas from
their work stations upstairs, and they soon appeared in her
office, one by one. By the time all three had arrived, it was
about 2:15.22 It appears that Chui had a brief and confusing
initial exchange in English with one or more of them, but
soon called-in her assistant, Dorina Vasquez, to serve as an
English-Spanish translator.23
With Vasquez translating for the most part, Chui then con-
fronted the trio with her suspicions, asking Barajas initially
if she ‘‘had a habit of having someone punch her time
card.’’ Barajas replied (as translated by Vasquez) that in the
past she had sometimes allowed her ‘‘friends’’ to punch her
own card in after lunch, simply out of ‘‘laz[iness],’’ i.e., to
avoid having to make the elevator trip to the basement time-
clock from the employee lunchroom on the ninth floor, then
having to return by elevator to an upstairs level to continue
cleaning rooms. Salinas and Alvarado reacted to Barajas’ ad-
mission by snapping their heads in her direction and widen-
ing their eyes, and Alvarado, especially, had a severe expres-
sion on her face. Chui then posed a similar question to Sali-
nas and Alvarado, who each emphatically denied, in turn,
that she had ever done or allowed such a thing. Then Chui,
directing her remarks to Salinas, asked whether her answer
would be the same if she knew that someone had just ‘‘wit-
nessed’’ her punching others’ cards. Salinas replied that this
was ‘‘impossible,’’ and that the supposed witness would be
‘‘lying.’’ Alvarado and Barajas backed her up, saying that
they had punched their own cards on returning from lunch
that day. Salinas then demanded to know who the supposed
witness was. Chui may have mentioned Reyes’ name at this
point, but in any case, she had Vasquez summon Reyes to
her office from his lunchbreak.
After Reyes arrived, he confirmed (mostly speaking in
Spanish, with Vasquez as translator) that he had seen Salinas
punch-in several cards after lunch. Salinas then had a brief
exchange in Spanish with Reyes, during which (as translated
to Chui by Vasquez) she called him a liar. (At roughly this
point there also may have been some perfunctory mention of
a ‘‘videotape’’ by one or more of the participants, but if so,
it would be impossible on this record to determine reliably
what was said, or by whom.24 In any case, the matter of the
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933NEW OTANI HOTEL & GARDEN
video camera did not come up at all-neither in the 2:15 meeting nor
in the 4:15 meeting, infra. And Vasquez likewise insisted that none
of the participants in the meeting mentioned anything about a video,
neither in English nor Spanish.
However, there is no dispute that the subject of a videotape did
arise during the trio’s meeting on February 17 with Balabus, infra.
25 The General Counsel subpoenaed from the Respondent, inter
alia, any videotapes the Respondent might have showing activities
at the timeclock on February 15. And when the General Counsel
raised the point at the trial’s outset, the Respondent’s counsel rep-
resented that there were no such tapes, and that the camera in ques-
tion was ‘‘down’’ that day. Also, as I further discuss, infra, after
Balabus interviewed the suspect trio on February 17, during which
the question of the existence of videotape record did arise, Balabus
made inquiries and was eventually informed by Chase, the director
of engineering, that there was no such record, and that the camera
had been malfunctioning.
I note, moreover, that none of the parties sought to independently
establish through testimony or other evidence what the video camera
in question could or could not see from its perch when in normal
operation. Accordingly, we cannot know whether a videotape of
events in the area in the critical minutes, if it existed, would be con-
clusive of the question of the actual guilt or innocence of any or all
of the alleged discriminatees.
26 Barajas uniquely testified that, at some point during the ex-
changes in Spanish among the employee-participants, she declared
that Reyes had seen her on the B–1 level just before 1:30, where-
upon Reyes acknowledged this (in Spanish), but added that he had
not witnessed Barajas punch in her own card. Reyes testified that
he did not see Barajas or Alvarado on the B–1 level at the time he
saw Salinas proxy—punch three cards, and neither did he see either
of them in that area at any time in the few minutes that elapsed
thereafter, during which he first made his report to Chui, then exited
her office and took an elevator back upstairs to continue some work
before starting his lunchbreak (which, his timecard shows, he began
at 2 p.m.) The General Counsel now relies on Barajas’ unique recol-
lections about this supposed exchange in Spanish when she asserts
on brief (Br. 19) that Reyes ‘‘admitted’’ during the meeting ‘‘that
he had seen Barajas on the B–1 level.’’ Barajas’ account of the
meeting in question was otherwise confused, and in many ways
wholly at odds with the recollections of others. Reyes’ testimony
was, by contrast, far more coherent, and I found him particularly
credible when he denied, repeatedly, that he had seen Barajas on the
B–1 level at any time in the minutes surrounding his report to Chui.
I am not persuaded to a contrary conclusion by an arguably incon-
sistent ‘‘statement’’ that is contained in an English-language affida-
vit (G.C. Exh. 5, p. 3, LL 11–15; but see id., LL 5–10) which Reyes
signed after being interviewed—in Spanish—by a Board agent on
October 25, more than 8 months after the fact. The concluding recit-
als on the affidavit indicate that its contents were ‘‘read’’ to Reyes
by the Board’s investigator ‘‘in English’’ before Reyes signed it.
Reyes testified in this trial through an interpreter and the record in
many incidental ways allows me to find that his grasp of English
is quite limited and imperfect. (It may be enough evidence of the
point that his interview with the Board agent was conducted in
Spanish.) And even if, contrary to the concluding recitals on the
English-language affidavit, the Board agent may have ‘‘read’’ an im-
promptu ‘‘translation’’ of its text back into Spanish before Reyes
signed it, his signature on it could not reasonably be taken as evi-
dence that he ‘‘adopted’’ the affidavit itself. Rather, at best in such
event, he would only have ‘‘adopted’’ the Board investigator’s (hy-
pothetically assumed) oral translation of the affidavit into Spanish.
But where there is no independent record of any such oral trans-
lation, we cannot know what it was that Reyes was ‘‘adopting’’
when he affixed his signature to the affidavit. Neither can we know
whether the Board agent’s (hypothetically assumed) translation was
competent.
27 I rely here primarily on Chui’s credible recollection, even
though Balabus did not recall hearing all the details I have just
found that Chui reported to her. I note in this regard that Balabus
recalled, credibly, that Chui actually had two contacts with Balabus
on the afternoon of the 15th—first at about 2:45–3 p.m., where Chui
made an initial summary report, and later around 3:45–4 p.m., where
she made a followup report that focused on the status of the suspen-
sion paperwork, infra. I judge it likely that the details I have found
that Chui reported to Balabus on the 15th were not furnished in a
single coherent narration, but trickled out incidentally during the
course of these two communications.
possible existence of a video record of who did what at the
timeclock during the critical minutes around 1:25 proved to
be a distraction and a dead end.25) The meeting soon ended,
with Reyes continuing to insist that he had seen Salinas
proxy-punching others’ cards and with Salinas and her fellow
suspects continuing to deny this, and to insist, instead, that
all three of them had come to the basement after lunch and
had each punched their own cards.26
Chui, herself still convinced of Reyes’ reliability and of
the soundness of her own suspicions after studying the time-
cards, then reported to Director of Human Relations Balabus
what had just transpired, including her own judgment that
Reyes was telling the truth about Salinas, and that the time-
cards tended to back him up and point to Alvarado and
Barajas as the workers who had permitted Salinas to proxy-
punch their cards. She also reported that the trio had denied
being involved in any proxy-punching that day, but that
Barajas had more generally admitted to having allowed oth-
ers to punch in her card in the past.27 Balabus told Chui to
suspend the trio pending further investigation, and Chui did
so, calling them together into her office near the end of the
day, around 4:15, and handing each of them a completed
English-language form, captioned, ‘‘Warning Notice (Coach-
ing and Counseling Record),’’ which Vasquez translated into
Spanish for Salinas and Barajas, after Alvarado had waived
the translation, saying she could read and understand the
English text.
Each warning notice contained slightly different wording
in the section of the form calling for a description of the
‘‘Specific Violation.’’ In the one addressed to Salinas, this
entry stated, ‘‘You have been witnessed punching in or out
other employees’ time cards. This is in direct violation to
Hotel Policy.’’ In the one addressed to Alvarado, the coun-
terpart entry stated, ‘‘You have been witnessed having your
time card punched by your fellow worker and you are allow-
ing them to punch your time card for you[,]’’ again followed
by the same admonition that ‘‘This is in direct violation to
Hotel Policy.’’ The counterpart entry on the warning notice
to Barajas stated, ‘‘You admitted having fellow employees
punch in or out your time card often and your are allowing
them to punch your time card for you.’’ This too, was cited
as ‘‘in direct violation to Hotel Policy.’’ Beyond these par-
ticularized messages, the warning notice to each of the three
contained identical verbiage, notifying them that they were
being suspended for the next 3 workdays, i.e., February 16
through 18, but should report to the Human Resources office
on Friday morning, February 17, ‘‘for counseling,’’ follow-
ing which, on Tuesday, February 21, they would be ‘‘noti-
fied of the result of investigations.’’
In the meantime that afternoon, Balabus had visited
Yoshimoto in his office, where she briefed him about the
events as reported to her by Chui, and also told him that she
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934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 In the trial, Balabus testified that Barajas continued at all times
to deny that she had signed the agreement form. However, Balabus’
personal notes of the meeting (Jt. Exh. 15), which she prepared min-
utes after the meeting had concluded, contain this entry: ‘‘She
[Barajas] acknowledged her signature but insisted she didn’t remem-
ber.’’ In this instance, therefore, I rely on Balabus’ recorded recol-
lection.
29 It is evident from her notes of the meeting (Jt. Exh. 15) that
Balabus was skeptical of Alvarado’s unique claim that
Padilla/Hinojosa had ‘‘witnessed’’ Alvarado’s punching in her own
card. Thus, after recording Alvarado’s statement, ‘‘My witness is
Francisco [sic] Padilla,’’ Balabus appended these parenthetical re-
marks reflecting her own thoughts on this disclosure: (‘‘If indeed she
[Padilla] was there she should have witnessed all 3 clock-ins.’’)
I note further that if Balabus had examined Padilla/Hinojosa’s
timecard entries for February 15 (which apparently she did not) her
skepticism might have deepened; for the timecard (Jt. Exh. 4) shows
a punchout time for lunch that day of 1:04, and, more important, a
punch-in time of 1:32–5 minutes after Alvarado had supposedly
punched herself in.
30 Alvarado was the only witness who recalled that one or more
of the employees ‘‘told her [Balabus] that there is other people
who’s doing that, punch another’s time card and she said that she
knew but nobody was willing to go and to be a witness like Marco
Reyes.’’ Balabus was not invited to admit or deny this claim, but
she testified elsewhere that, after the meeting, she made some inquir-
ies among the managers as to whether they were aware of any such
violations, and that none of them reported any knowledge of such
violations. Thus, it is plausible, as Alvarado testified, that someone
made some generalized claim in the meeting that ‘‘others’’ were vio-
lating the rule, and that Balabus countered by observing that in any
other cases, no one had ‘‘come forward,’’ like Reyes. What I don’t
accept in the end, however, is the General Counsel’s argument on
brief (Br. 45) that Alvarado’s testimony can be taken as evidence
of an ‘‘admi[ssion]’’ by Balabus that Balabus was actually ‘‘aware’’
of any other specific instances of a violation of the rule against
proxy-punching. And I note that, despite the fact that the three work-
ers may have claimed to Balabus that ‘‘others’’ had violated the
rule, they evidently had no such firsthand knowledge either; for al-
though the General Counsel produced witnesses purporting to have
some such knowledge, they did not include Salinas, Alvarado, or
Barajas.
31 These written statements (Jt. Exh. 4) are materially consistent
with the accounts offered by Chui and Reyes in the trial, with one
exception—Chui’s statement shows that she, too, adopted ‘‘4:15’’ as
the time when she first met with and confronted the three house-
keepers and then brought in Reyes to reaffirm his accusations in
their presence. Chui testified, however, that ‘‘4:15’’ was apparently
a ‘‘typo,’’ and again insisted that the meeting in question occurred
at 2:15. Whether or not it was indeed a ‘‘typo,’’ or perhaps instead
reflected Chui’s merger in her own mind of the two meetings that
day, I remain fully persuaded from the record as a whole that there
were indeed two meetings, one at 2:15, one at 4:15, separated by
Chui’s consultations with Balabus, supra.
had instructed Chui to suspend the trio pending Balabus’ fur-
ther investigation. Yoshimoto concurred in this action, and
instructed Balabus to get another manager to assist her in her
own intended review, specifically suggesting Ladd Chase,
then the director of engineering for the hotel, who was also
filling-in as a ‘‘rooms director.’’
C. Balabus’ Investigative Efforts; Her Ultimate Report
to Yoshimoto
1. Balabus meets with the suspect trio
At 10:30 on the morning of February 17, a Friday, the
three housekeepers appeared in Balabus’ office, as previously
instructed, where they found Balabus, Chase, and Elena
Shinnick, the bilingual laundry director, who would serve as
an English-Spanish translator. A priest accompanied the three
housekeepers and asked to participate in the meeting, but
Balabus said no, and the priest waited in Balabus’ office,
while everyone else removed to a nearby location. Balabus
conducted the meeting and Chase said nothing.
Balabus first took several minutes discussing the rule in
question with the trio, and the Respondent’s disciplinary pro-
cedures in general. She also brought out the ‘‘agreements’’
that each employee had signed when the current timeclock
rules and procedures went into effect in 1993, agreements in
which each employee had acknowledged by their signatures
that they had read and understood the rules. Alvarado and
Salinas admitted that they had signed the agreements and
knew proxy-punching was against the rules and that it was
a ‘‘serious’’ violation that could result in ‘‘immediate dis-
missal.’’ However, when Balabus pulled out the agreement
form Barajas had signed, Barajas protested without even
looking at the document that she hadn’t ‘‘signed anything.’’
Then, when Balabus put the signature page in front of
Barajas and asked if it was, indeed, her signature at the bot-
tom, Barajas acknowledged it was her signature,28 but began
protesting that the document was ‘‘in English’’ (even though,
in fact, it was printed in Spanish), and that in any case, she
had never read it before signing it. Balabus replied, with evi-
dent skepticism, ‘‘So be it[,]’’ and soon asked the three to
tell their own side of the story. Each then denied that she
had been involved in any proxy-punching on the 15th, and
asserted that Reyes was lying when he said otherwise, and
that each would be the ‘‘witness’’ to the fact that the others
had punched-in their own cards. At some point, Alvarado in-
troduced the name of another potential witness, saying that
‘‘Francisca Padilla’’ (now surnamed Hinojosa) had seen Al-
varado punch in her own card. Balabus said words to the ef-
fect, ‘‘Good, we finally have a witness[,]’’ and made a note
of Padilla’s name.29 At some point one or more of the em-
ployees asked to see the ‘‘videotape,’’ asserting that it would
prove their innocence. This was the first time that Balabus
had heard anything about a possible video record and she
said she didn’t know anything about such a record but would
look into it. At some point, the employees complained that
they were being ‘‘picked-on’’ and treated unfairly.30 Balabus
assured them that their claims would be considered and that
a decision would be made and announced to them on the fol-
lowing Tuesday morning, February 21.
2. Other predischarge events
Also on February 17, at Balabus’ direction, both Chui and
Reyes were interviewed by Cesar Giron, a manager of some
kind, who, according to Balabus, was ‘‘adept’’ at English-
Spanish translation. After interviewing both Chui and Reyes
(the former, apparently, in English; the latter in Spanish),
Giron prepared written versions of their statements in
English, which each signed, and which Giron then furnished
to Balabus.31 After this, Balabus met personally with Reyes,
using her assistant, Rosa Martinez, as a translator. She asked
him, in substance, if he were ‘‘comfortable’’ enough with his
account of events to be ‘‘willing to come forward’’ beyond
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935NEW OTANI HOTEL & GARDEN
32 A copy of the Respondent’s RM petition is in evidence as G.C.
Exh. 6. I have not made administrative inquiry into the precise tim-
ing or reason given by the Regional Director for dismissing the RM
petition, but I rely on the General Counsel’s representation on brief
(Br. 32 fn. 31) for my finding that the RM petition was, indeed, dis-
missed.
33 As noted below, Yoshimoto and Balabus denied any awareness
of the union activities or sympathies of Salinas and Barajas. While
the record contains no direct evidence to the contrary, I note that
Alvarado recalled seeing both Yoshimoto and Balabus standing in-
Continued
what he had already done, should it come to that. He replied,
as translated by Martinez, that he was ‘‘very comfortable.’’
Balabus also did these things on February 17: She reported
to Yoshimoto that she had interviewed the trio, that they
were denying any proxy-punching on the 15th, that there was
a ‘‘possibility of a witness, Ms. Padilla,’’ and that Balabus
would ‘‘try to reach her.’’ Later the same day, Balabus had
an assistant call the housekeeping department to locate
Padilla/Hinojosa and ask her to come to Balabus’ office.
However, Padilla/Hinojosa never appeared, neither that day
nor on the following Tuesday morning, the 21st, when, on
Balabus’ return from the 3-day holiday weekend, she again
made a similar effort to have Padilla/Hinojosa summoned to
her office.
On either February 17 or the following Tuesday morning,
February 21, Balabus also did these things: She conferred
with other managers who served with her on an existing
‘‘executive committee’’ and asked if they were aware of any
instances of proxy-punching in their departments, or reports
thereof. She drew a blank in each case. She also reviewed
personnel records for prior instances of ‘‘Separations for
Misconduct,’’ and prepared a summary list of these in-
stances. (So far as Balabus could discern from her review,
although the Respondent had fired at least 15 employees in
the previous 4 years for such varied offenses as ‘‘Insubor-
dination,’’ ‘‘Missing Funds,’’ ‘‘Removing Property [belong-
ing either to a guest or to the hotel] Without Authorization,’’
and ‘‘Intoxication,’’ no one had previously been fired for a
proxy-punching violation or any other violation of the time-
card rules and procedures.) (But neither, for that matter, did
she discover any instances where any employee had been ac-
cused of such a violation.) However, she learned that at least
one employee—Jose Reyes—had been fired in 1991, prior to
the introduction of the new timeclock rules and procedures
in 1993, for falsifying his hand-kept ‘‘sign-in sheet,’’ the
records then relied on by the Respondent’s payroll depart-
ment for pay-computation purposes.)
After again hearing nothing from Padilla/Hinojosa on the
morning of February 21, and with the deadline for a decision
now imminent, Balabus concluded from all she had seen and
heard and read so far that, despite the protestations of inno-
cence by the trio, Reyes had been truthful in reporting that
Salinas had proxy-punched others’ cards on the 15th, and
that it must have been Alvarado’s and Barajas’ cards that she
had punched.
She soon reported these conclusions to Yoshimoto, bring-
ing Chase with her, who concurred in her conclusions. She
emphasized in this regard her judgment that Reyes seemed
quite credible and serious in his report of what he had wit-
nessed firsthand, and that, by contrast, the trio had seemed
unconvincing and shifty in their denials and collateral claims.
She also presented Yoshimoto with the ‘‘documentation’’ she
had by then assembled, including the ‘‘agreements’’ each of
the three had signed acknowledging that they had read the
timecard rules, the timecards of the suspect trio, the written
statements signed by Chui and Reyes, her own handwritten
notes of her interview with the trio, and the list of
‘‘Separation[s] for Misconduct’’ over the previous 5 years.
Balabus also recommended to Yoshimoto that, to be ‘‘con-
sistent,’’ and ‘‘fair’’ to the other employees, dismissal was
the appropriate penalty. Yoshimoto reviewed the documenta-
tion Balabus had set before him, and agreed (reluctantly, he
insists) with both her conclusions about the guilt of the trio
and her recommendations they be dismissed. As to the ques-
tion of the trio’s guilt, Yoshimoto relied on Balabus’ assess-
ments of their unimpressive performances during her inter-
view with them, and seems to have been especially im-
pressed that Reyes had ‘‘come forward,’’ without any
prompting, or any apparent reason to lie, or any apparent ul-
terior motive that might cast doubt on his truthfulness. As to
the appropriateness of dismissal as the penalty, Yoshimoto
reasoned, in substance, that the offense was ‘‘serious,’’ in
that it implicated issues of employee honesty, and that, inas-
much as this was apparently the first instance of a witnessed
and reported proxy-punching violation, the hotel could not
afford to treat it lightly or brush it under the rug, for fear
of creating a ‘‘precedent’’ that might send the wrong mes-
sage to other employees and might thus compromise the in-
tegrity of the timeclock-based payroll system.
Soon after this, the alleged discriminatees were notified by
telephone of Yoshimoto’s decision. Some 5-1/2 months later,
the Union filed the instant charge.
III. THE TRIO’S PREVIOUS UNION ACTIVITIES; EXTENT OF
MANAGEMENT KNOWLEDGE
The Union has been trying to organize the Respondent’s
hourly workers since sometime in 1992, and Alvarado, Sali-
nas, and Barajas appear to have been among a relative hand-
ful of its early supporters. On this record, however, it ap-
pears that the Union’s organizing efforts did not become
public until 1994, when it orchestrated at least two large or-
ganizing rallies and marches in the area of the New Otani,
one in March and one in July, each attended by some em-
ployees of the New Otani (including the alleged
discriminatees) as well as by local labor activists, sympa-
thetic public officials, and representatives of the local tele-
vision and newspaper media. However, as of the conclusion
of this trial, the Union had never petitioned for an election,
and the Respondent’s own petition seeking an election, filed
on August 25, 1994, in Case 21–RM–2595, was eventually
dismissed by the Regional Director on an uncertain date, for
reasons not disclosed by this record.32
Alvarado was admittedly known to the Respondent’s main
actors at the time of her dismissal as an activist in the
Union’s organizing campaign. These are some of the relevant
background details: In 1994 Alvarado had distinguished her-
self in both the March and July rallies by addressing the
ralliers through a bullhorn from an elevated perch. The
March rally was held in front of the hotel, around a fountain,
and was attended by about 200 people in all, among whom
were about 80 of the Respondent’s employees, including
Barajas and Salinas, who hoisted banners or picket-signs
bearing prounion messages.33 Clips of Alvarado’s speech
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936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
side the window of the Azalea restaurant which fronted on the site
of the March rally, apparently observing the rally activities, a recol-
lection that was not denied by either Yoshimoto or Balabus.
34 The employee group did not include either Salinas or Barajas.
35 Yoshimoto was led by company counsel’s suggestion to identify
Dixie Magana as the employee in the meeting whose actions were
the targets of scrutiny. However, Alvarado implied on cross-exam-
ination (see next footnote) that Dora Cruz was the targeted worker.
It may be that each worker had been making accusations against the
other, and that Yoshimoto had called both of them on the carpet to
explain their dispute.
36 On cross-examination of Alvarado, the Respondent’s counsel
suggested that Dixie Magana was the worker Alvarado and Ortiz
were bent on protecting. Alvarado corrected him, however, and in-
sisted that Dora Cruz was the worker whom they were trying to
‘‘protect’’ by serving as her ‘‘witness.’’ Curiously, however, counsel
for the General Counsel asserts on brief (Br. 41) that Alvarado was
there to ‘‘witness the discipline of Union supporter Dixie Magana.’’
But counsel does not identify any basis in the record for this claim,
which is actually two claims—first that Alvarado was there to pro-
tect Magana; second, that Magana was a ‘‘fellow Union supporter.’’
I reject the first claim in the light of Alvarado’s testimony. As to
the second claim, for which the General Counsel cites no evidence
of record, I note that Balabus admittedly believed that Magana was
outspokenly prounion. However, with the record in this confused
state, I can draw no meaningful conclusions whatsoever about whose
interests Alvarado and Ortiz may have been trying to protect by in-
tervening in the meeting, much less what the underlying issue may
have been.
37 Union Exh. 1.
during the March rally were broadcast on a local television
news show, and the Japanese/English-language newspaper for
the Little Tokyo community, The Rafu Shimpo, published a
front page story of the rally which included a brief interview
with Alvarado (identifying her as ‘‘Ann Alvarado, the New
Otani Hotel’s supervisor of housekeeping’’), and in which
Alvarado was quoted as saying that the workers wanted
‘‘more respect’’ from the management. Alvarado was also
pictured in a photograph adjacent to the article, standing next
to a speaker with a bullhorn who was then addressing the
ralliers.
The Respondent customarily distributed copies of the Rafu
Shimpo in the hotel, and Yoshimoto admittedly had made it
a point, ‘‘since the union organizing campaign started,’’ to
collect newspaper and magazine articles relating to the cam-
paign, which he kept in what he sarcastically called his
‘‘smart book.’’ Indeed, Yoshimoto, ‘‘believed’’ that he had
read the Rafu Shimpo’s story about the March 1994 rally,
and admittedly was aware of Alvarado’s union activism in
any case. The record contains independent evidence clearly
establishing the point even in the absence of his unguarded
admission. For example, Alvarado’s uncontradicted testimony
shows that, at an uncertain point before the first of the small
group picketing episodes in the fountain plaza in the summer
of 1994 (infra), Alvarado had approached Yoshimoto di-
rectly, in the company of about seven other prounion work-
ers,34 and asked him if it would be okay for the employees
to leave the hotel proper to conduct picketing during their
lunch breaks. According to Alvarado, whom I substantially
credit, Yoshimoto told the delegation that this would be
‘‘okay by him but we had to go without uniform because the
half an hour is not paid, so we can do whatever we want.’’
The second large rally was held on an uncertain date in
July, apparently before the other events described imme-
diately below. Alvarado was again a speaker, and Salinas and
Barajas, among others, participated in the rally and displayed
prounion signs or placards. The record contains few other de-
tails associated with that rally, except that it was again at-
tended by a large and varied group of participants (including,
presumably, the merely curious), and that one of the speakers
other than Alvarado was a Los Angeles City Councilperson,
the Honorable Richard Alatorre, whose only relevant testi-
mony when called as the Union’s witness in this trial was
to confirm two points never in dispute—that there was such
a rally, and that Alvarado was a speaker.
On July 21, 1994, apparently not long after Alvarado had
spoken at the second of the large rallies, she and another em-
ployee-supporter of the Union, Argelia Ortiz, received 3-day
disciplinary suspensions for ‘‘insubordination.’’ The suspen-
sions traced from an incident 2 days earlier, when Alvarado
and Ortiz had admittedly broken into some kind of ‘‘discipli-
nary’’ meeting being conducted by Yoshimoto with two
other workers. The only details of the underlying events were
provided by Yoshimoto. His account, although itself some-
what skeletal and impressionistic, was not materially contra-
dicted by Alvarado or by Ortiz in their own summary ref-
erences to the same events on cross-examination. Relying on
Yoshimoto unless I note otherwise, I find as follows: On
July 19, 1994, Yoshimoto was meeting with two employees
whose names, apparently, were Dixie Magana and Dora
Cruz,35 and who were somehow involved in some kind of
dispute. (There is a suggestion in the record, but no more,
that the dispute may have traced from a union-related argu-
ment between the two.) Also present were Executive House-
keeper Chui and Director of Human Resources Balabus. As
the meeting was underway, Alvarado and Ortiz, although
uninvited, entered the meeting and said they wanted to serve
as ‘‘witnesses’’ to ‘‘protect’’ Cruz.36 Yoshimoto said they
weren’t needed and asked them to leave, which they refused
to do even after he then instructed them at least once more
to leave. When they wouldn’t leave, Yoshimoto then had
Balabus call the security department to send someone up to
remove them, but before security personnel arrived, the two
uninvited workers finally left.
In the aftermath of this incident Yoshimoto personally in-
structed that Alvarado and Ortiz be issued a disciplinary sus-
pension for 3 days for their ‘‘insubordination’’ in refusing to
leave when first ordered to do so. And in a memorandum to
each of them accompanying their notices of disciplinary sus-
pension, Yoshimoto spoke, inter alia, of his ‘‘extreme dis-
appointment in your witnessed unprofessional behavior[,]’’
while also stating, ‘‘[s]hould you have anything constructive
to add to my management of this Hotel, my door is always
open to employees.’’
Yoshimoto does not claim that he was unaware of the ap-
parently close connection between Alvarado’s and Ortiz’ or-
ganizing activities for the Union and their actions in trying
to attend, and then refusing to leave, the July 19 meeting.
And even if he had not already made this connection, it
would have been apparent to him as soon as he read the July
30, 1994 issue of The Rafu Shimpo,37 which carried a story
about the disciplining of Alvarado and Ortiz under the head-
line, ‘‘Tension Escalates Between New Otani and Union Or-
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38 Yoshimoto made a point of collecting such articles, and I infer
that he read the ‘‘Tension Escalates’’ article, especially considering,
as I discuss below, that he had been interviewed for and purportedly
quoted in this one.
39 Skurnik also appeared in this trial as the Union’s representative;
however, she offered no testimony.
40 For obvious reasons, I give no substantive weight to Skurnik’s
quoted claims. Relatedly, I note that Yoshimoto, too, was quoted in
the article as purportedly saying that ‘‘[t]he situation was getting out
of hand and they [Alvarado and Ortiz] needed some kind of discipli-
nary action. . . . I had to do it for the protection of all the other
employees who were being harassed by those two and other pro-
union people.’’ The quotes attributed to Yoshimoto in the article
clearly cannot be relied on to prove that Yoshimoto’s quoted asser-
tions were true, for they are plainly hearsay for that purpose. Neither
can his quoted remarks be cited as evidence of a nonhearsay admis-
sion by Yoshimoto, for the record lacks foundation through a wit-
ness with firsthand knowledge that Yoshimoto made the quoted re-
marks. Accordingly, the only weight I give to the article is that it
was an obvious medium through which Yoshimoto would have
learned, if he did not know it already, that Alvarado’s and Ortiz’ ac-
tions in trying to attend the July 19 meeting were ‘‘union-related’’
activities.
41 The record vaguely suggests that the Union has filed several
charges during the course of its protracted organizing campaign
among the Respondent’s employees, but it likewise suggests that the
instant charge concerning the dismissals of Alvarado, Barajas, and
Salinas are the only ones that led to issuance of any complaint.
While these questions could be resolved by administrative inquiry,
no party has suggested such an inquiry, and I have made none.
42 Thus, invoking Yoshimoto’s announced ‘‘disappointment’’ over
Alvarado’s and Ortiz’ actions on July 19 as the factual centerpiece
of her argument, the General Counsel goes on to say this (Br. 41;
my emphasis):
Although Yoshimoto does not refer to Alvarado’s Union activ-
ity in the letter [i.e., the memoranda to Alvarado and Ortiz
wherein he expressed his ‘‘disappointment’’], it has been found
that personal dislike or animosity for an employee is discrimina-
tory where, as here, it stems from knowledge of protected activ-
ity. Yesterday’s Children, Inc., 321 NLRB 1 (1996)]
43 Without in any way questioning the holding of Yesterday’s Chil-
dren, or its reasoning or any of its dicta, I remain unpersuaded that
the cited case has any applicability to the known facts in this case.
In this regard, I note first that although counsel for the General
Counsel has avoided being explicit on the point, she is clearly im-
plying in the passage quoted in the last footnote that the disciplining
of Alvarado and Ortiz, being a response to their supposedly ‘‘pro-
tected’’ activities, was itself an unlawfully retaliatory act. (You can’t
reasonably assert in the same breath, (a) that the July 19 actions of
Alvarado and Ortiz were protected activities, and (b) that
Yoshimoto’s ‘‘disappointment’’ was traceable to those protected ac-
tivities, without necessarily implying also that the disciplinary action
taken by Yoshimoto because of that ‘‘disappointment’’ was itself
unlawfully retaliatory.) But plainly, it could only be by finding that
the workers’ activities were protected in the first instance that I
could find that Yoshimoto’s ‘‘disappointment’’ over their activi-
ties—and his acting on that disappointment by disciplining them—
betrayed antiunion animus, as distinguished from a mere animus
against ‘‘insubordinate’’ behavior by employees, without regard to
whether that behavior may be in some way union related. And what
is finally lacking in the General Counsel’s argument here—or else-
where in the prosecution brief—is any defense of the General Coun-
sel’s bare claim that the two workers’ actions in refusing to leave
the meeting when instructed by Yoshimoto were ‘‘protected’’ activi-
ties. Thus, I regard the whole passage in the end as an afterthought,
indeed, as an inconclusive stab in the dark, wholly unsupported by
any coherent legal theory or body of evidence, and one not worthy
of further consideration.
ganizers.’’38 In that story, the Union’s staff representative,
Jennifer Skurnik,39 was quoted at length on the matter of the
suspensions and the roles of Alvarado and Ortiz as key in-
house organizers, and the point is best illustrated by her
quoted statement that ‘‘[t]his anti-union move [the suspen-
sions] is the latest in a long list of retaliatory attacks made
on hotel union leaders since Local 11’s organizing campaign
began more than a year ago.’’40
In this latter regard, I further note as follows: The record
contains no evidence of any ‘‘long list of retaliatory attacks
made on hotel union leaders’’ since the 1992 inception of the
Union’s organizing effort.41 But It may be presumed that the
Union, having thus publicly charged the Respondent with
having ‘‘retaliated’’ against its in-house leaders Alvarado and
Ortiz, would have then filed such a charge with the Board.
However, the record does not show whether or not any such
charge was filed, much less how it may have been disposed
of. In any case, the complaint never attacked the July 21 dis-
ciplinary suspensions of Alvarado or Ortiz as unlawfully dis-
criminatory, nor did the General Counsel give any other form
of notice that she might make such a contention.
Despite this, however, in a summary passage in the pros-
ecution brief notable more for its coyly oblique quality than
for the soundness of the uncertain argument within, counsel
for the General Counsel now suggests not only that
Yoshimoto’s disciplining of Alvarado and Ortiz can be taken
as evidence of his supposed antiunion ‘‘animus,’’ but that
Alvarado’s and Ortiz’ actions on July 19 were statutorily
‘‘protected’’ activities.42 However, the General Counsel’s de-
fense of the former proposition is, at best, circular, and her
defense of the latter proposition is nonexistent. In the cir-
cumstances, I will not attempt to guess about, much less ana-
lyze the merits of, whatever theory the prosecution may now
have in mind. It suffices to observe that where there is no
apparent basis for finding that the two employees had a stat-
utory right to attend the meeting in the first place, there is
likewise no apparent basis for finding that their refusal to
leave the meeting was ‘‘protected’’ activity. But in any case,
given the known facts, it would be difficult, if not analyt-
ically impossible, to infer merely from Yoshimoto’s known
reactions to their refusal to leave that he bore any ‘‘animus’’
whatsoever against his employees’ union activities, as distin-
guished from their insubordinate refusal to leave the meeting
when ordered by Yoshimoto to do so.43
As already noted, Barajas and Salinas, although less con-
spicuous as advocates for the Union than Alvarado became
in 1994, were hardly invisible in that role. They had attended
both the March and July 1994 large rallies, and, with Alva-
rado, they had also participated with a smaller group of six
or seven other hotel workers in occasional lunchtime picket-
ing in the summer of 1994 in a fountain plaza of the New
Otani, where they say they saw hotel ‘‘security’’ employees
standing by, with portable radios in hand. However, both
Balabus and Yoshimoto denied knowing at the time of their
discharges that either Barajas or Salinas favored the Union,
and the most that Chui would concede is that she believed
that Salinas was prounion, but didn’t have any belief at all
as to where Barajas stood on the issue. There is no direct
evidence to the contrary, even though it is apparent alone
from their participation in public rallies and in the small
group picketing episodes that any of the Respondent’s key
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938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 See, e.g., Manno Electric, Inc., 321 NLRB 278, 280 fn. 12
(1996), discussing Southwest Merchandising Corp. v. NLRB, 53 F.3d
1334 (D.C. Cir. 1995), and the Supreme Court’s decision in Office
of Workers’ Compensation v. Greenwich Collieries, 512 U.S. 267
(1994). See also Schaeff Inc. v. NLRB, 113 F.3d 264 (D.C. Cir.
1997), where the circuit court recently suggested that the practical
effect of Greenwich Collieries, supra, may be no more than the
abandonment of the expression ‘‘prima facie case’’ to describe the
General Counsel’s burden under Wright Line. 155 LRRM at 2332
fn. 5.
45 251 NLRB at 1088 fn. 11.
46 NLRB v. Transportation Management Corp., 462 U.S. 393, 395,
398–399 (1983).
47 Manno Electric, supra at fn. 12, reaffirming this understanding.
48 Columbian Distribution Services, 320 NLRB 1068 (1996).
49 Id. at 1070–1071, citing Farmer Bros. Co., 303 NLRB 638, 649
(1991).
50 In substantial agreement with the Respondent’s argument, how-
ever, I judge that on this record, it would require an unreasonable
stretch to suppose that Yoshimoto would have gotten rid of two
other longstanding employees of the hotel, Barajas and Salinas, sim-
ply to rid himself of known union activist Alvarado, especially
when, as of February 21, 1995, union organizing activities at the
actors herein—Chui, Balabus, and Yoshimoto—could have
gained knowledge of Salinas’ and/or Barajas’ union sym-
pathies from any number of persons who witnessed those
conspicuous activities, had any of them wished to learn such
things. In any case, all three management actors credibly de-
nied that the subject of the union activities or sympathies of
any of the three was ever discussed between or among them-
selves in their various interactions leading to Yoshimoto’s
decision on February 21 to fire the trio.
Considering the record as I have just summarized it, espe-
cially the absence of direct evidence showing otherwise, I
find that Yoshimoto’s decision to fire the three was reached
with clear awareness of Alvarado’s prounion role, but with-
out any knowledge or belief as to the union activities or
sympathies of Barajas or Salinas. I reach the same finding
regarding Balabus’ extent of awareness of these things at the
time of her involvement in the discharges. However, I em-
phasize that even if their knowledge as to Barajas and Sali-
nas had been more clearly demonstrated, this would not
change my ultimate finding that the General Counsel has
failed to establish a credible threshold case that the employ-
ees’ union activities were a motivating factor in Yoshimoto’s
decision to fire them or in Balabus’ own recommendation
that they be fired.
Moreover, before moving on, I record these points of fact:
First, none of the alleged discriminatees was clearly shown
to have conducted any union activities at any point after the
summer of 1994. Similarly, so far as this record shows, the
Respondent’s own filing on August 25, 1994, of a petition
for an election seems to have roughly coincided with the
Union’s abandonment of high profile activities such as dem-
onstrations, rallies, and picketing. Thus, if the Union—or any
of the alleged discriminatees—persisted at all in any organiz-
ing activities after the summer of 1994, they must have been
conducted well beneath the Respondent’s radar screen.
Analysis; Supplemental Findings; Conclusions of Law
IV. THE GENERAL COUNSEL’S BURDEN
The teachings of Wright Line, supra, must govern my
analysis. Under that case, as already noted, it is the General
Counsel’s threshold burden to ‘‘make a prima facie showing
sufficient to support the inference that protected conduct was
a ‘motivating factor’ in the employer’s decision.’’ Accord-
ingly, lacking such a ‘‘prima facie’’ showing, the complaint
can be dismissed on this basis alone; likewise, it is only
when such a showing can be found in the credible record
that it may become necessary to the ultimate decision to de-
termine whether the employer has nevertheless made out a
defense under Wright Line, i.e., to determine whether the em-
ployer has, nevertheless, ‘‘demonstrated that the same action
would have taken place even in the absence of the protected
conduct.’’ Moreover, although the Board’s phrase, prima
facie showing, might imply, standing alone, that the General
Counsel’s burden is merely one of ‘‘coming forward’’ in its
case-in-chief with some evidence pointing in the direction of
bad motive—and has drawn criticism in some circuits for
this reason44—the Board elsewhere made it clear in Wright
Line itself that the General Counsel’s burden is actually one
that remains with the prosecution throughout the trial, and
does not shift.45 (The Supreme Court likewise so held in its
approval of Wright Line’s analytical scheme in Transpor-
tation Management, observing in the process that the General
Counsel’s burden requires proof of the ‘‘motivating-factor’’
element by a ‘‘preponderance’’ of the evidence in the record
as a whole.46 In short, the General Counsel’s burden in these
cases is an ultimate burden of ‘‘persuasion’’ as to the ‘‘moti-
vating-factor’’ element, not merely a burden of ‘‘coming for-
ward.’’47
Beyond this, as the Board recently affirmed in Columbian
Distribution Services,48 the prosecution must establish the
existence of four factual ‘‘elements’’ to satisfy its threshold
burden under Wright Line, namely, ‘‘union or protected ac-
tivity, knowledge, animus, and adverse action.’’49 Accord-
ingly, I must assume for purposes of my analysis below that,
absent proof by a preponderance of each such ‘‘element,’’
the General Counsel’s case must be dismissed.
V. ADEQUACY OF THE GENERAL COUNSEL’S SHOWING
A. Union Activities, Knowledge, and Adverse Action
Two of the four ‘‘requisite elements’’ have been clearly
established: The alleged discriminatees were involved in
‘‘union or protected activity’’ (most notably, in the summer
of 1994), and the Respondent took ‘‘adverse action’’ against
them when it fired them in late February 1995. In addition,
the element of ‘‘employer knowledge’’ of those activities is
clearly established in Alvarado’s case. However, I have
found that Balabus and Yoshimoto, the company agents most
involved in the decision to fire the three, were both unaware,
in fact, of either Salinas’ or Barajas’ union activities or sym-
pathies at the time this decision was reached. Nevertheless,
I acknowledge that if a sufficient showing had been made
that the Respondent harbored antiunion animus, then its ad-
mitted knowledge of Alvarado’s union activities might en-
able an argument that the combination of these two elements
warrant the inference that the decision to discharge all three
was tainted by hostility against Alvarado. Accordingly, it is
not necessarily fatal to the General Counsel’s case that
Yoshimoto and Balabus may have been unaware that Salinas
or Barajas were likewise prounion.50 However, as I discuss
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939NEW OTANI HOTEL & GARDEN
hotel had been in a stage of dormancy, if not abandonment, for
roughly 6 months, and, therefore, Alvarado’s erstwhile union activi-
ties would not appear to have presented any particular threat to the
Respondent as of February 21.
51 G.C. Br. 40.
next, with supplemental findings, the evidence on which the
General Counsel relies for her general assertion that ‘‘the Re-
spondent’s on-going animus . . . is abundantly clear from
the record’’51 is evidence that I find, instead, is either quite
innocuous or, at best in some instances, too equivocal in its
implications to plausibly support a finding that even
Alvarado’s known union activities were a motivating factor
in Yoshimoto’s decision to fire the trio.
B. Animus
I have already considered and rejected the General Coun-
sel’s attempt to claim that an antiunion animus on
Yoshimoto’s part can be inferred from his disciplining of Al-
varado and Ortiz on July 21, 1994, for their insubordinate re-
fusal to leave the July 19 meeting involving Magana and
Cruz. But this is only one among several circumstances cited
by the General Counsel on brief as evidence of animus. I
now address those additional circumstances:
1. Testimony of Alvarado regarding Chui’s and
Hollis’ remarks
The General Counsel cites Alvarado’s testimony that Chui
made what might be called a ‘‘cautionary’’ reference to
Alvarado’s union activities during an annual appraisal meet-
ing between the two sometime in ‘‘May 1994,’’ more than
8 months before Yoshimoto fired her. Thus, Alvarado re-
called that Chui said, inter alia, that Alvarado had ‘‘good
points,’’ and that Alvarado was, indeed, ‘‘one of the best su-
pervisors that she ha[d],’’ but also told Alvarado ‘‘that she
knew about [Alvarado’s] union activity,’’ and said in this
vein that Alvarado should ‘‘be careful’’ about whom she
‘‘spoke to.’’ Alvarado recalled, moreover, that she received
a 30-cent-per-hour raise ‘‘after’’ receiving this appraisal from
Chui, and I infer that Chui’s positive appraisal of Alvarado
had something to do with this raise.
Chui, whose only appearance on the witness stand pre-
ceded Alvarado’s, was never called back either to confirm or
deny having made some such ‘‘be careful’’ warning to Alva-
rado during the May 1994 appraisal session. I recall here that
Chui made no bones in her own testimony about her aware-
ness of Alvarado’s highly conspicuous role as one of the
Union’s chief, in-house organizers. Accordingly, I find it
quite plausible that Chui could have mentioned this to Alva-
rado, and I assume for these purposes that she did. I retain
doubt, however, that Alvarado reported either the context or
the substance of Chui’s remarks with complete accuracy.
(It’s the ‘‘be careful’’ part that troubles me, not least because
Alvarado conveniently places the same words in Hollis’
mouth, as I discuss below.) But even if I were to accept
Alvarado’s testimony here as literally accurate, I could not
find in it any plain indication of hostility on Chui’s part
against Alvarado for her union activities; indeed, I think the
best interpretation of Alvarado’s fragmentary recollection is
that Chui was implying that she didn’t care that Alvarado
was prounion, but was concerned that Alvarado may have of-
fended some of the other employees in her attempts to enlist
their support for the Union, and therefore should ‘‘be care-
ful’’ lest she might further alienate such employees. And
clearly in any case, it involves straining this modest and tem-
porally remote evidence beyond its tensile limits for the Gen-
eral Counsel to rely on it as proof that antiunion animus was
a motivating factor in Yoshimoto’s decision, taken more than
8 months later, to fire Alvarado.
The other incident involving Alvarado cited by the Gen-
eral Counsel shares these same ultimate weaknesses. Thus,
Alvarado testified that on another occasion on an uncertain
date (she said first it was sometime in ‘‘1994,’’ but then re-
called, somehow, that it was actually in ‘‘January 1995’’),
she was again warned to ‘‘be careful’’ about her union ac-
tivities—this time by a ‘‘room director’’ named John Hollis,
who was no longer employed by the Respondent at the time
of this trial, and whom no party called as a witness. On this
occasion, according to Alvarado, Hollis called Alvarado
aside in the cafeteria where (in Alvarado’s words), ‘‘He told
me that somebody saw me [post] on the bulletin board a
leaflet from the union and he told me that I had to ask per-
mission from the personnel office first[,] and I told him that
I didn’t know because I saw so many employees put some
notes, they selling car or homes[,] over there. So he told me
again that it had to be ask first permission and to be care-
ful.’’ Again, even assuming the literal truth of Alvarado’s re-
porting, its strains credulity to cite this incident as substantial
evidence of antiunion animus even on the part of Hollis;
much less does it plausibly suggest the existence of some
overarching animus that pervaded every judgment made by
any management agent who might have had occasion to deal
with Alvarado or any other union activist. Indeed, it would
be wholly speculative to rely on this incident as evidence
that union activities were a motivating factor in Yoshimoto’s
decision to fire not just Alvarado, but Salinas and Barajas as
well.
2. Testimony of Manuel Alvarado and Argelia Ortiz
regarding Yoshimoto’s remarks at March 1 meeting
The final evidence of supposed animus cited by prosecut-
ing counsel traces from certain remarks allegedly made by
Yoshimoto in a speech to the Respondent’s entire employee
complement after the three housekeepers had been dis-
charged. The General Counsel here cites the roughly harmo-
nious features in the testimony of 2 of the approximately 200
or more employees in attendance, Manuel Alvarado (no rela-
tion to Ana), and the previously mentioned Argelia Ortiz. In
fact, however, counsel for the General Counsel relies solely
on Manuel Alvarado’s account when she asserts on brief that
Yoshimoto said, among many other things, that the Union
was ‘‘no good,’’ and ‘‘only wanted [the workers’] money.’’
And it is this version which, as the General Counsel sees it,
supplies proof of sufficient antiunion hostility on the part of
Yoshimoto himself to warrant the inference that the same
animus infected his decision to fire the trio.
I note, however, that Ortiz recalled instead that what
Yoshimoto said was, ‘‘It’s okay with me if you want the
union, no problem, but I just want to let you know that they
will only try, you know, to get your money away.’’ And if
the difference between the two versions mattered to the ques-
tion of animus (and I don’t think it does), I would
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940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 I retain many doubts about Manuel Alvarado’s overall reliabil-
ity; my doubts are based largely on his demeanor and his recurrent
tendency throughout his testimony to editorialize or digress from his
narrations in ways that seemed calculated, however naively, to aid
the prosecution case.
53 R. Exh. 59.
54 The background to this, as Balabus explained it, was as follows:
Mr. Otani [the Respondent’s owner] had been here for a visit,
and he was very encouraged by the trend of the economy going
up. There were a lot of rumors going around at that time that
the hotel was going to be sold and Mr. Yoshimoto was being,
quote-unquote, shipped back to Japan. And he [Yoshimoto] was
concerned about that.
55 I deem it probable that it was these remarks that both Manuel
Alvarado and Ortiz had vaguely in mind when Alvarado recalled
that Yoshimoto said that the Union ‘‘only wanted our money’’ and
Ortiz recalled that he said that the Union would ‘‘only try . . . to
get your money away.’’
unhesitatingly credit Ortiz,52 whose version clearly negates
any suggestion of animus that might be inferred from
Manuel Alvarado’s account, viewed in isolation.
Both witnesses further recalled, moreover, that Yoshimoto
announced that the ‘‘reason’’ he was holding the meeting
was to respond to ‘‘rumors’’ that the three housekeepers had
been fired because of their union activities. And on this
point, they each recalled, in substance, that Yoshimoto said
this was not true, and explained further that they had been
fired for violating the rule against proxy-punching, which
was like ‘‘stealing’’ from the company (Alvarado), and that,
although he had tried to be ‘‘fair to everybody,’’ he ‘‘had
to follow the policies of the hotel,’’ and that if he had ‘‘let
them get away with th[is] . . . people would take advan-
tage’’ (Ortiz).
I find that Manuel Alvarado’s truncated version of this
meeting as offered during the General Counsel’s direct exam-
ination of him is in several respects unreliable, especially so
as to the claim that Yoshimoto’s announced reason for hold-
ing the meeting was to address rumors surrounding the dis-
missal of the alleged discriminatees. However, I substantially
credit his recollections of what Yoshimoto said on the sub-
ject of the dismissal of the three housekeepers when that sub-
ject eventually arose (near the end of the meeting, as I fur-
ther find below). My reaction to Ortiz’ version is similar, al-
though I think her account, to the extent it varies from my
further findings below, represented a more sincere attempt on
her part to accurately describe what she recalled of the meet-
ing.
However, for a more complete understanding of what
Yoshimoto said about the purposes of the meeting, and the
context of his union-related remarks, I find, relying on
Balabus’ more coherent and complete memory, that
Yoshimoto did conduct a mass meeting of employees—on
March 1—in which he did seek to dispel certain ‘‘rumors,’’
but that the subject of the dismissal of the housekeeping trio
was not among the rumors he focused on in the meeting.
Rather, I find, the latter subject came up incidentally, after
Yoshimoto had concluded his scripted speech, when ques-
tions emerged from various employees. Specifically, relying
chiefly on Balabus, and on the script which she credibly tes-
tified was used by Yoshimoto during his speech,53 I find that
the ‘‘rumors’’ he sought to dispel were (a) that he was
‘‘leaving this hotel’’ (which he assured them he had abso-
lutely no intention of doing, except in the sense of ‘‘going
home for the evening’’), and (b) that ‘‘the hotel is going to
be sold’’ (which he denied as lacking in ‘‘one drop of
truth’’).54
Finally, I find, Yoshimoto did make the following state-
ments at the conclusion of his speech relating to union activi-
ties at the hotel, both remote and recent, all of which were
simultaneously translated into Spanish by Elena Shinnick:
The last item that I want to talk to you about . . .
is the activities of a union. There is a union that tried
to organize the employees of this hotel some thirteen
years ago. We eventually got a secret ballot election
and the hotel won by a margin of about 10 to 1. At
the time that we won, we told the employees that their
wages were comparable to or better than the wages of
workers in similar positions in other hotels in this area,
many of which were nonunion, many of which were
union. Furthermore, our employees’ job security has al-
ways been better. This is the truth. Period.
At that time the union predicted that when they lost
the election, we would reduce wages, reduce benefits,
and there would be a great deal of turnover. What hap-
pened? Wages went up, benefits remained stable, and
the turnover here at the New Otani remained much bet-
ter in the sense that it is far lower than other hotels.
That means that we terminate fewer people than other
hotels, and fewer people quit.
. . . .
The Union wants me to come in and sign an agreement
to recognize them. I don’t want to do that. . . . So I
have instructed our lawyers to try and get the NLRB
to order a secret-ballot election. We may or may not be
successful in getting an election. The Union does not
want an election because they know you do not want
to pay your hard-earned money to the Union.55 Instead,
they want the hotel to recognize the Union without al-
lowing you to vote.
We have told the Union that we are confident our
employees don’t want a union and we are willing to let
the NLRB come in and conduct an election. So maybe
we will have one, maybe we won’t. If we don’t have
an election it will be the Union’s fault, because it is the
Union opposing our request for an election. . . . A de-
cision to be union or nonunion will be reflected in the
wishes of all our employees.
It was after Yoshimoto made these scripted remarks, I
find, that questions and challenges arose from some of the
employees in the audience relating to the discharge of the
three housekeepers, and in response to which, I find,
Yoshimoto stated, in substance, that the dismissal of the trio
had nothing to do with union activities, but instead was
linked solely to their involvement in a proxy-punching ar-
rangement, and to the Respondent’s need to be strict in its
enforcement of its rule prohibiting proxy-punching, lest other
employees might get the wrong message from any leniency
and thus ‘‘take advantage.’’
The following findings arguably bear more closely on the
General Counsel’s contentions relating to alleged ‘‘disparate
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941NEW OTANI HOTEL & GARDEN
56 These findings are based on the harmonious and credible fea-
tures in the testimony of Manuel Alvarado and Ortiz, with pref-
erence for Ortiz’ recollections to the extent they differ from
Alvarado’s. Balabus was not only present throughout the March 1
meeting, but present throughout this trial, as the Respondent’s trial
representative, and thus she saw and heard the testimony of Alva-
rado and Ortiz now in question. On cross-examination, Balabus ac-
knowledged having heard both Alvarado and Ortiz raise questions at
the conclusion of the March 1 meeting, and she was not invited
thereafter to contradict what the former witnesses reported.
57 I rely on Ortiz for this quote, with emphasis on her recollection
that Yoshimoto referred to the ‘‘personnel’’ office.
58 Alvarado was referring to an incident which, as he testified else-
where, had occurred some uncertain number of weeks before the trio
was fired. In that incident, says Alvarado, he saw an ‘‘engineer’’
known to him only as ‘‘Norman,’’ punch-in ‘‘about three’’ time-
cards. Alvarado admittedly did not report this to anyone at the time,
‘‘because,’’ he said, ‘‘I thought that they wouldn’t believe me be-
cause, you know, I’m pro-union and I didn’t think they would . . .
care.’’ This explanation was delivered so lamely, and is so
motivationally improbable in the known circumstances, that I utterly
reject it as a reason for Alvarado’s failure at the time to ‘‘report’’
the alleged incident. On the other hand, I think his admitted ‘‘pro-
union’’ stance may well account for the fact, discussed elsewhere
below, that, at some uncertain point after the March 1 meeting, Al-
varado did come forward with his ‘‘report’’ about ‘‘Norman.’’ Sig-
nificantly, however, he did not tell his story to the ‘‘personnel of-
fice’’ (i.e., to Balabus or a subordinate), but instead carried it to the
hotel’s security director, Jake DeLeon, where it either languished, or
was passed on by DeLeon to Director of Engineering Chase, who
admittedly took no further action. 59 Columbian Distribution Services, supra at 1070–1071.
treatment’’ (discussed in the final section, infra) than they do
on the existence of animus. However, I place them here to
complete my findings about events at the March 1 meeting
that may be of arguable significance to any or all of the par-
ties:56
After Yoshimoto explained why he had fired the three al-
leged discriminatees, Manuel Alvarado spoke up from the
floor, and asked Yoshimoto, in substance, whether he would
fire any others who were guilty of proxy-punching, to which
Yoshimoto replied, ‘‘Yes.’’ Alvarado then added that he had
seen an (unnamed) ‘‘engineer’’ in the hotel punching-in
someone else’s timecard. Yoshimoto then asked Alvarado in
reply, ‘‘Why didn’t you report this to the personnel [of-
fice]?’’57 Alvarado then said that this would do no good be-
cause ‘‘they never listen.’’58 Ortiz then spoke up, echoing
the latter sentiment. At some nearby point, Juan Castro, an
employee in the Security Department, likewise said some-
thing to Yoshimoto implying he had knowledge of a proxy-
punching violation, and Yoshimoto gave him an answer simi-
lar to that he had given Alvarado.
C. Conclusions; the Significance of the Absence
of Animus
I have already said that the General Counsel’s evidence of
animus is either quite innocuous or, at best in some in-
stances, too equivocal in its implications to plausibly support
a finding that Alvarado’s known union activities were a mo-
tivating factor in Yoshimoto’s decision to fire the trio. I
haven’t changed my mind. The foregoing evidence is, in my
final judgment under Wright Line, far too weak to justify the
‘‘inference’’ that anyone’s union activities were a ‘‘motivat-
ing factor’’ in Yoshimoto’s decision to fire the trio. And
with this finding that the General Counsel has failed to estab-
lish the ‘‘requisite element’’ of animus, the case ends here,
and the complaint must be dismissed on this basis alone.59
Admittedly, however, I have not yet addressed either the
facts or the arguments on which the prosecution seems to
place heavy ultimate reliance, all centering on the claim that
the alleged discriminatees were the victims of ‘‘disparate
treatment.’’ I have deferred the subject until now because it
is my judgment, elaborated below, that absent some direct,
independent, and convincing proof that the Respondent har-
bored significant anitunion animus (and I have found none-
such), the existence of arguably uneven treatment by dif-
ferent supervisors in their handling of reports of alleged
timecard violations cannot reasonably be relied on alone to
supply an ‘‘inference’’ that union activities were a ‘‘motivat-
ing factor’’ in the Respondent’s dismissal of the
discriminatees. But I have never seen the Board clearly en-
dorse this reasoning, and against the possibility that the
Board or another reviewing body would prefer to decide the
case with the benefit of findings as to alleged disparate treat-
ment, I turn next to that issue:
VI. DISPARATE TREATMENT CONTENTIONS
A. General Significance, and the Limits Thereon, of
Disparate Treatment Evidence
It is impossible to be categorical about the proper role of
evidence of arguable disparity in treatment in unfair labor
practice cases requiring a Wright Line analysis. But it is pos-
sible to advance some modest generalizations, grounded both
in our common administrative experiences with such cases in
the private sector, and in our common personal experiences
with employing entities of all kinds:
Clearly, in many cases, evidence that an employer has ap-
plied and enforced a rule against a known union activist,
while overlooking instances of identical or substantially com-
parable misconduct by employees who are known to be
antiunion, or whose sympathies on the subject are unknown,
can serve to reinforce an ultimate conclusion that the em-
ployer committed unlawful discrimination. But in most such
cases where such evidence is cited in support of the ultimate
conclusion, if not all of them, there is independent proof of
the ‘‘elements’’ (union or other protected activity, knowl-
edge, animus, and adverse action) necessary for the General
Counsel to carry its ‘‘prima facie’’ burden under Wright
Line. Accordingly, the value of the disparate treatment evi-
dence lies principally in its tendency to rebut the employer’s
own attempt to carry its now-shifted burden under Wright
Line of demonstrating that it would have taken the same ac-
tion against the activist even absent his or her union activi-
ties. And as I discuss next, there are good reasons, grounded
in our common experience, for thinking generally about dis-
parate treatment evidence in a Wright Line case as rebuttal
evidence, and not as evidence that will, by itself, sustain the
General Counsel’s threshold burden.
First, let us define the category to be discussed below
more tightly, by excluding those situations where the prof-
fered evidence of disparate treatment requires the embracing
of a flawed analogy, i.e., a comparison between apples and
oranges (‘‘The manager wouldn’t let me go home early to
watch the Rangers match, but he let Bob off to take his wife
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942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the hospital.’’) Let us instead define the category to be
discussed to include only those situations where the cited
disparity of treatment when it comes to rule—enforcement is
blatant, i.e., involves a plain failure by the employer or its
supervisory or managerial agents to treat equally—situated
employees equally.
Next, we need to remind ourselves that even with the cat-
egory thus confined to blatant disparity in rule—enforcement
among equally—situated employees, the phenomenon is not
uncommon in the workplace. Indeed, the phenomenon can
often be found to occur even in the smallest businesses, and
becomes increasingly inevitable the larger the employing en-
tity, the greater the number of employees, the greater the
number of supervisors responsible for them, and the greater
the number of administrative layers between those at the top
who make and declare rules and policy and those at the bot-
tom of the supervisory hierarchy who are charged with en-
forcing the rules day to day in their respective departments.
Next we must acknowledge that even when such blatant
disparities in treatment can be found to exist, the disparity
can often be explained in terms that do not necessarily impli-
cate concerns under the National Labor Relations Act, even
if they might in certain cases implicate other laws, e.g., Title
VII of the Civil Rights Act, where discriminatory ‘‘motive’’
is not a necessary element. These reasons can range from a
given floor-level supervisor’s or higher manager’s ignorance
of the employer’s rules or policies, through situations where
the supervisor or a higher manager is aware of and attentive
to the rules, but believes, rightly or not, that they don’t apply
in a given instance, to situations where the acting official, al-
though quite conscious of the rules, and careful to enforce
them against employees in most instances, consciously
chooses to ignore them in a given instance to serve some in-
terest deemed to be overriding in the circumstances. And
even in those latter situations, the interest sought to be
served could range from the merely innocuous in terms of
the NLRA (‘‘Even though she broke the rule, I’m giving her
a pass, because she’s my sister-in-law’’) to the unlawfully
discriminatory (‘‘Even though he broke the rule, we’ve got
to give him a pass because he’s our swing vote against the
Union in the election next Tuesday’’).
Next, it is only in the latter cases, involving conscious de-
viation from the known rule in a given instance, that we may
rationally question whether the employer really ‘‘cares’’ as
much about the rule that is purportedly applicable to all as
might otherwise appear from the existence of the rule itself.
(The former situations do not reasonably suggest this; they
only suggest that the employer isn’t doing a good enough job
of making its rules clear, or of conducting the kind of over-
sight necessary to ensure common practices among all super-
visors and managers.) And again, it is only one of several
possibilities in the latter cases that the reason for the variance
in the rule—enforcement might be an unlawful one—and
then it is only one of many possibilities that the unlawful
reason might be one which implicates our statute.
The foregoing amounts to a long way of saying that, ab-
sent independent proof of the employer’s antiunion animus,
even evidence of actual, conscious disparity of treatment by
an employer or its agents when it comes to rule—enforce-
ment is generally not a reasonable basis for inferring that the
employer’s enforcement of the rule in a given instance
against an employee who has engaged in union activities
known to the employer was motivated in any way by the em-
ployee’s union activities. There are simply too many other
explanations for such phenomena that do not raise concerns
under the Act.
These reminders have particular application to this case
and to the grab-bag of anecdotes and other evidence cited by
the General Counsel that I will review below. Before review-
ing that evidence, however, I record my ultimate judgment
that none of this evidence, nor all of it considered as a
whole, persuades me that the Respondent’s main actors in
this case—Chui, Balabus, and Yoshimoto—or any one of
them, was generally more tolerant of alleged violations of the
proxy-punching rule than the rule itself might suggest. In-
deed, I judge that the evidence does not ultimately tend to
undermine in any significant way the plain inference deriv-
able from the rule itself, reinforced by the testimony of Chui,
Balabus, Yoshimoto—and by nearly all of the General Coun-
sel’s witnesses, as well—that proxy-punching is a serious
violation in the Respondent’s eyes, and that ‘‘immediate dis-
missal’’ is the presumptive penalty for any employee found
to have been involved in proxy-punching.
I also record in advance my principal reason for reaching
these ultimate judgments concerning the General Counsel’s
evidence of alleged disparate treatment: None of the Re-
spondent’s central actors in this case—Chui, Balabus, and
Yoshimoto—was ever shown to have been aware of any such
evidence when they acted against the alleged discriminatees.
Indeed, they each testified affirmatively (and quite credibly)
that, as far as each knew, the report made by Reyes that he
had just seen Salinas proxy—punch the cards of two or more
other workers, represented the first and only such instance of
a witnessed violation since the rule had gone into effect in
1993.
B. The Evidence of Arguable Disparate Treatment in
this Case
1. Preliminary note
Some of the evidence provided through the General Coun-
sel’s witnesses concerned incidents or alleged incidents that
were so remote in time (i.e., clearly arising prior to the effec-
tive date of the proxy-punching rule in September 1993) as
to be essentially valueless in terms of assessing Chui’s,
Yoshimoto’s or Balabus’ motivations in late February 1995,
even if they had been aware of these remote instances, which
they were never shown to have been. I will not address any
such evidence. Other testimony was of a merely anecdotal or
gratuitously confessional kind, and concerned incidents or
supposed incidents that were never shown to have come to
the attention of any supervisor or managerial official of the
Respondent. I will likewise ignore such evidence. Other testi-
mony was confusing as to timing, details and surrounding
circumstances, but concerned incidents that either clearly
arose since the effective date of the proxy-punching rule, or
may have occurred around the time the rule was first pub-
licized, but in any case concerned situations where the al-
leged violation of the rule was brought to the attention of
one or more supervisors or department managers in one way
or another (but never to Balabus or Yoshimoto, nor even to
Chui, in whose department, incidentally, there is no evidence
whatsoever of any proxy-punching violation other than the
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943NEW OTANI HOTEL & GARDEN
60 Although I received this evidence over the Respondent’s objec-
tion as a nonhearsay admission of a party under Rule 801(d)(2)(e)
that might support a finding that DeLeon actually did send such a
‘‘memo’’ to Yoshimoto, I make no such finding, especially consider-
ing my doubts concerning Alvarado’s overall reliability, and his
seeming tendency to edit and shape his recollections in ways cal-
culated to aid the prosecution’s case. However, in the light of the
testimony of Engineering Director Chase, who summarily acknowl-
edged without further detailing that he had gotten some such report
about ‘‘Norman’’ (Nielson’s) alleged proxy-punching, I would be
more inclined to find that DeLeon was the source of that report, and
that DeLeon had made it only to Chase, who admittedly took no fur-
ther action.
61 On brief (Br. 36), counsel for the General Counsel somehow in-
terprets this same testimony as allowing a finding that the incident
described by Orozco occurred ‘‘about six months before the three
housekeepers were fired[,]’’ i.e., around September 1994. I reject
this interpretation as unsupported by any reliable evidence.
62 Ortiz was not asked to corroborate any of this when called as
the General Counsel’s witness.
63 The absence of vowels in ‘‘Intr’’ does not reflect a typo-
graphical error; this is how Mr. Bhao-Intr spells that part of his
name.
supposed violations by the alleged discriminatees). It is this
latter category of evidence on which I focus below.
2. Manuel Alvarado’s evidence
I have already noted that Manuel Alvarado testified that he
saw an ‘‘engineer’’ known to him only as ‘‘Norman’’ punch-
in ‘‘about three’’ timecards on an uncertain date in the weeks
preceding the trio’s dismissal. I have further found that Alva-
rado made a general reference to this (but naming no names)
when he spoke up at the March 1 meeting conducted by
Yoshimoto, and that Yoshimoto responded by asking why
Alvarado had not reported the incident to the ‘‘personnel’’
department. I pick up the story at that point:
Alvarado testified that, after the March 1 meeting, he con-
ferred with security guard Castro (who was not called as a
witness), and then, ‘‘about a week’’ later, that he and Castro
went together, not to the ‘‘personnel’’ office, but instead to
Castro’s supervisor, Jake DeLeon, the head of the security
department (who also was not called as a witness). There,
Alvarado said he told DeLeon ‘‘what [he] had seen [‘Nor-
man’ do] that day.’’ (From the absence of any indication to
the contrary, I infer that Alvarado did not indicate to DeLeon
the actual date of the incident he claims to have witnessed.)
Alvarado recalled that DeLeon then asked, ‘‘How come
[you] didn’t report it[,]’’ and that he replied that he didn’t
think anyone would ‘‘believe’’ him or ‘‘care.’’ DeLeon took
some notes, according to Alvarado, and told him he would
send a ‘‘memo to Mr. Yoshimoto as soon as he came back
from his vacation.’’60 A week or so thereafter, according to
Alvarado, he queried DeLeon in some way about the matter
and DeLeon did not respond. Then, says Alvarado, about 3
weeks after that, Alvarado approached DeLeon again, and
DeLeon, without waiting even for Alvarado to question him,
told Alvarado that he ‘‘hadn’t heard anything,’’ and walked
away.
3. Antonio Orozco’s evidence
Antonio Orozco, a waiter in the Azalea Restaurant, testi-
fied about an incident that he initially said had occurred
‘‘about two an[d] a half years’’ earlier. In context, Orozco
seems to have been referring to a time roughly 2-1/2 years
before his October 2, 1996 appearance at the trial, i.e., some-
time in or around April 1994.61 However any reliance on this
interpretation is misplaced, for Orozco testified on cross-ex-
amination that he couldn’t be sure even that the incident oc-
curred before the three housekeepers were fired, and ac-
knowledged it could have been after that date. Indeed, con-
sidering other evidence discussed below, all suggesting in the
aggregate that, in the aftermath of the housekeeping trio’s
dismissal, there emerged a great deal of mutual finger-point-
ing by ‘‘rival’’ groups or individuals working in the Azalea
Restaurant, I deem it probable that the incident discussed
next occurred during that period of finger-pointing that oc-
curred after the dismissal of the three housekeepers.
The matter of timing aside, this, in substance, is what
Orozco recalled about the underlying incident itself: On
whatever day it was, Orozco was told by Argelia Ortiz that
she had heard from yet another employee, ‘‘Luis,’’ that yet
another employee known to Orozco as ‘‘Mercedes’’ had ar-
rived late to work in the restaurant, but that yet another
worker, ‘‘Jaime,’’ had proxy-punched her card at shift-start
time to cover for her lateness.62 Relying on this information,
and angered by it, Orozco went to Azalea Restaurant Man-
ager George Salamonides and reported to him what he had
heard about ‘‘Mercedes,’’ but not naming either his own al-
leged informant, Ortiz, or those of any others supposedly in-
volved at some firsthand or near-firsthand level. However,
according to Orozco, Salamonides brusquely dismissed
Orozco’s concerns, advising him to the effect that he
shouldn’t ‘‘worry’’ further about it or trouble to ‘‘get in-
volved.’’
Lacking any contrary testimony from Salamonides, I credit
Orozco that he delivered some such report to Salamonides
and that Salamonides did not appear to be moved to take any
action on the basis of it, and indicated this by some kind of
dismissive reply. (I wonder if Salamonides’ apparent unwill-
ingness to take action might not have had something to do
with the obvious evidentiary frailties in Orozco’s third- or
fourth-hand report, but in the end, no such finding is nec-
essary.)
4. Rudy Majano’s evidence, as supplemented by
Kitti Bhao-Intr
At all material times, Rudy Majano was a cook in the
Azalea Restaurant, where Kitti Bhao-Intr, a man born and
raised in Thailand,63 was one of three chefs, and an admitted
supervisory agent of the Respondent. Prior to the introduc-
tion of the new timeclock rules in March 1993, Majano occa-
sionally punched in the timecards of some of his fellow
kitchen workers, including the timecard of Hector Flores. In
this era, as the record independently shows, the hourly em-
ployees’ pay was computed on the basis of hand-completed
timesheets, but not on the timecards that some workers, in-
cluding kitchen workers, were also required to punch at a
timeclock. The timecard records were then used mainly as a
convenient way of determining quickly whether an employee
was in the hotel, in the event an emergency or disaster re-
quired such ready information.
Majano’s proxy-punching in that era was apparently sus-
pected by chef Bhao-Intr, for, as Majano testified, sometime
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944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
64 I see no reason for deciding whether or not Contreras was credi-
ble when he testified that he did see Pantaleon punch the cards of
others on two occasions of uncertain timing. Again, the proper focus
is on what he told his supervisors and managers, and what they did
or did not do about it, and why.
65 G.C. Br. 36.
66 Id., p. 37; and see also id. at fn. 37.
around April 1993, after the new rules banning the practice
had been announced, Bhao-Intr approached Majano and
asked if he had recently punched in Flores’ timecard. Majano
acknowledged that he had, and Bhao-Intr told him that he
must now ‘‘take care,’’ because the practice ‘‘is illegal.’’
There is no evidence that Majano ever again proxy-punched
for anyone, much less that Bhao-Intr was personally aware
of any such continuing activity on the part of either Majano
or anyone else.
Bhao-Intr, called as a nominally adverse witness by the
General Counsel, did not deny Majano’s story, and I there-
fore credit it. Bhao-Intr further acknowledged, although in
highly generalized terms, and with little attention to dates or
sequences, that it was common, especially in the period im-
mediately after the three housekeepers were fired, for him to
receive reports from kitchen workers accusing others in the
kitchen of timecard or other timekeeping violations. Speaking
generally, he said he believed that these reports were symp-
tomatic of ongoing ‘‘ethnic rivalries’’ or personal ‘‘feuds’’
among different groups in the kitchen, unrelated to union
sympathies, but which had engendered a lot of ‘‘finger-point-
ing.’’
Thus, in one such instance, he recalled that a trio of work-
ers (whom he named, but I will not) complained to him that
another group of workers had been clocking-in and -out for
one another. (Bhao-Intr did not name the group of accusees,
and he said that the trio of accusers named only some of the
names in the group of accusees.) Bhao-Intr personally exam-
ined the timecards of the named accusees, and later asked
them if any had proxy-punched for another, which all denied.
Bhao-Intr then went back to the trio of accusers and asked
if they were prepared to come forward as ‘‘witnesses,’’ and
they all said they were not, and pleaded with him not to
‘‘mention’’ their ‘‘names’’ because they didn’t want any
‘‘trouble.’’ Bhao-Intr took no further action; nor did he re-
port the original accusations to Balabus or anyone else in
upper management.
In another instance of uncertain timing and surrounding
circumstances, Bhao-Intr recalled that he investigated some-
one’s report that Maria Padilla (presumably the same person
previously identified as now going by the surname
‘‘Hinojosa’’) had proxy-punched for someone. His investiga-
tion satisfied him that there was no truth to the report, and
he took no further action.
Finally, Bhao-Intr recalled that, in the aftermath of the
three housekeepers’ dismissal for supposed proxy-punching,
Adriana Estrada, a kitchen worker known to him as a sup-
porter of the Union, came to him and confessed that ‘‘a long
time ago,’’ she had been guilty of proxy-punching for some-
one, and was fearful she might now get in trouble for it. She
assured Bhao-Intr that she would ‘‘never do it again.’’ Bhao-
Intr kept this confession to himself.
5. The combined evidence furnished by employees Jose
Contreras and Librado Vidaurri, and by Food and
Beverage Director Akira Yuhara
At material times, Jose Contreras and Librado Vidaurri
were ‘‘stewards’’ in the kitchen of the Azalea Restaurant,
where they were among about 5 workers on any given shift
who were responsible for cleaning the kitchen. One of these
was a steward named ‘‘Pantaleon,’’ whose alleged activities
were the primary focus of the General Counsel’s evidence
discussed below, although Pantaleon did not himself appear
in this trial.
Librado’ Vidaurri’s brother, Daniel Vidaurri (who likewise
did not testify in the trial) was the ‘‘supervisor’’ (or ‘‘chief
steward’’) of the kitchen stewards, although it is entirely un-
certain on this record whether the title carries with it any of
the supervisory powers set forth in Section 2(11) of the Act.
Daniel Vidaurri reported to one or more of the chefs in the
restaurant, and/or to the Respondent’s food and beverage di-
rector, Akira Yuhara, who had special oversight and ‘‘greet-
er’’ responsibilities in the Azalea Restaurant, because he is
a native of Japan and because the restaurant, which featured
Japanese cuisine, was heavily patronized by a Japanese clien-
tele.
The stories told by witnesses Contreras, Librado Vidaurri,
and Yuhara are each in their own way quite confusing either
as to timing, specific context, or other surrounding details;
and they are mutually contradictory as to some details, most
notably, timing: However, this much is certain and agreed on
by all witnesses: Contreras and Pantaleon were parties to a
longstanding feud, marked by intermittent hostile exchanges,
threats and challenges between the two. (According to pros-
ecution witness Librado Vidaurri, it was particularly
Contreras-also a prosecution witness—who posed a ‘‘con-
stant discipline problem.’’) The feud became so disruptive
that it eventually caused Steward Supervisor Daniel Vidaurri
to ask Food and Beverage Director Yuhara to participate in
a meeting with the antagonists to try to clear the air and to
make peace between them.
Contreras and Librado Vidaurri gave vague and conflicting
estimates of the timing of significant antecedent events, but
their mutual testimony implied a sequence in which
Contreras, over the course of a few days, first witnessed
Pantaleon twice punch in the cards of another kitchen work-
er,64 then mentioned this to Chief Steward Daniel Vidaurri,
who soon arranged the meeting over which Yuhara would
preside.
When did this sequence begin? On brief, the General
Counsel, relying on one of Contreras’ estimates, places
Contreras’ supposed witnessing of proxy-punching by
Pantaleon as occurring ‘‘sometime in mid-1995.’’65
Inexplicably, however, the General Counsel concedes in a
later passage that the meeting with Yuhara at the end of the
sequence did not occur until January 18, 1996,66 nearly a
year after the dismissal of the three housekeepers. The Gen-
eral Counsel relies for the latter assertion on Yuhara’s spe-
cific testimony, itself informed by reference to his dated
notes of the meeting. Implicitly, therefore, the General Coun-
sel seems to concede that at least 6 months—not merely a
matter of days—intervened between Contreras’ alleged wit-
nessing of Pantaleon’s proxy-punching and the meeting at
which he reported the same to Yuhara, as described next.
Ignoring Contreras’ hopelessly garbled versions of events
at the meeting (as does the General Counsel on brief), and
primarily relying instead on Yuhara’s recollections (ditto), I
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945NEW OTANI HOTEL & GARDEN
67 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
find as follows concerning the events at the meeting:
Pantaleon, Contreras, and the Vidaurri brothers spoke Span-
ish, and Yuhara spoke English. Daniel Vidaurri served as the
translator. The exchanges were again marked by mutual fin-
ger-pointing. Pantaleon said that when he served as an acting
chief steward, Contreras would not ‘‘follow his orders,’’ and
wasn’t helpful to other stewards. Pantaleon also complained
that whenever a problem would arise between the two,
Contreras would challenge him to go outside and fight. He
also accused Contreras of having punched-in his timecard on
a ‘‘Sunday,’’ when, in reality, he had not been at work.
(Pantaleon never specified to Yuhara whether the supposed
incident had occurred recently, or in the distant past.)
Contreras then rejoined that he had seen Pantaleon punch-in
the timecard of another worker. (Apparently, he was referring
to the incidents he had allegedly witnessed in ‘‘mid-1995,’’
but if so, he, too, did not specify to Yuhara when these al-
leged events had occurred.) Contreras went on to accuse
Pantaleon of ‘‘stealing bread,’’ and of ‘‘selling cassette
tapes,’’ as well. Eventually, Yuhara took over; he asked each
antagonist whether he had committed the timecard infractions
alleged by the other, and each denied the others’ accusation.
He also pressed Pantaleon about the alleged bread-stealing,
and cassette-selling, and Pantaleon denied doing the latter,
but admitted that he had taken home stale, or leftover bread
from the kitchen on one or more occasion. Eventually,
Yuhara and Daniel Vidaurri together delivered the effective
message that the two must get along better in the future, and
the instruction apparently stuck, for, according to Yuhara,
there was no further trouble between the two in the aftermath
of the meeting.
For his part, Yuhara formed the opinion that the various
accusations each had made against the other regarding time-
card violations were unreliable, and merely a product of their
ongoing feud. And taking that view of the situation, he never
pressed for details, nor did he thereafter advise Balabus or
Yoshimoto of these accusations.
CONCLUSIONS OF LAW
I have already noted that the complaint must be dismissed
because the General Counsel failed to persuade by a prepon-
derance of credible evidence in the record as a whole that
the Respondent bore any significant animus against its em-
ployees’ union activities, which showing, is in, turn, one of
the requisite elements to be established in meeting the pros-
ecution’s threshold burden under Wright Line of establishing
that such union activities were a motivating factor in the Re-
spondent’s dismissal of the three housekeepers. I have al-
ready explained why the foregoing evidence of supposed
‘‘disparate treatment’’ is too weak and insubstantial to sub-
stitute for the missing element of animus. In all the cir-
cumstances, I conclude as a matter of law that the General
Counsel has not carried its Wright Line burden.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended67
ORDER
The complaint is dismissed.
APPENDIX
MEMORANDUM OPINION
RE: ORDER DENYING CHARGING PARTY’S MOTION TO
REOPEN RECORD
In the decision to which this memorandum is attached, I
have denied the motion of the Charging Party herein (the
Union) to reopen the record. The background, and my prin-
cipal reasons for denying the motion, are set forth below:
The Motion
The Union’s motion to reopen the record, dated July 24,
1997, was received as the attached decision was in the final
stages of preparation. Although the service sheet attached to
the motion reflects that it was served on counsel for the Gen-
eral Counsel and the Respondent, neither of those parties has,
to date, filed any opposition or other responsive papers. The
thrust of the motion is that the Union has evidence of events
in May and June 1997 that the Union argues would tend to
show that the three alleged discriminatees in the case under
submission (the housekeepers) were the victims of ‘‘disparate
treatment’’ when they were fired on February 21, 1995 for
their supposed involvement in a proxy-punching arrangement
more fully described in my decision. In support of this mo-
tion the Union has tendered an ‘‘offer of proof’’ which con-
tains three basic averrals of fact, as follows:
(1) On two (apparently different but unspecified)
dates in ‘‘May’’ 1997 certain (named) ‘‘cooks’’ made
‘‘reports’’ to their (unnamed) ‘‘managers’’ that two of
their (unnamed) ‘‘fellow cooks’’ (the latter character-
ized as ‘‘known antiunion adherents’’) had each con-
trived to steal time from the company in different ways,
neither of them by the device of proxy-punching.
(2) On June 10, 1997, ‘‘approximately 30 workers
had a meeting . . . to report the violations’’ to General
Manager Yoshimoto and other (named) upper-level
managers, including Director of Human Resources
Balabus. (The offer of proof does not specifically aver
that any such intended ‘‘report(s)’’ were actually deliv-
ered, or if so, by whom, or in what manner.)
(3) ‘‘To date, the Hotel has taken no action’’ on
‘‘the reports,’’ and ‘‘[n]one of the employees who re-
ported the violations has been contacted to be inter-
viewed.’’
The Union further states in a footnote to its motion that it
is ‘‘prepared to present the evidence contained in its offer of
proof in any form determined appropriate by the administra-
tive law judge, whether by direct testimony of the witnesses
before the ALJ, through the investigative procedures of the
Region, or in any other manner.’’ And the Union further rep-
resents that it is ‘‘concurrently offering to present the wit-
nesses to Region 21 to give testimony concerning the events
which are the subject of this motion.’’
In seeking an order from me to reopen the record, the
Union invokes two provisions in the Board’s Rules and Reg-
ulations, Section 102.24, which deals generally with how,
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946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when, and where to file motions, depending on the status of
the case, and Section 102.48 (d)(1) whose caption refers,
inter alia, to ‘‘extraordinary postdecisional motions’’ (my
emphasis). The Union’s motion to reopen does not arrive at
a postdecisional stage, and therefore, as a technical matter,
it is not properly filed ‘‘under’’ Section 102.48(d)(1). But
this is not fatal, for under Section 102.35(8), prior to a deci-
sion and a transfer of the case to the Board, an administra-
tive law judge is expressly empowered, inter alia, ‘‘to order
hearings reopened.’’
Reasons for Denying Motion to Reopen
I have denied the Union’s motion to reopen for the follow-
ing reasons, any one of which, I judge, is sufficient:
1. In my decision, I have found that the General Counsel’s
showing, notably lacking in proof of any distinct antiunion
animus on the part of the Respondent, was insufficient to
warrant an inference that the union activities of the house-
keepers, or of any one or more of them, were a ‘‘motivating
factor’’ in the Respondent’s decision to fire them on Feb-
ruary 21, 1995, and, therefore, that the General Counsel
failed to sustain its threshold burden under Wright Line. In
a related supplemental discussion, I recorded the reasoning
leading to my judgment that, absent independent evidence
that would sustain the General Counsel’s threshold burden,
mere proof of alleged ‘‘disparate treatment’’ could not be re-
lied upon to supply the requisite elements lacking in the
General Counsel’s showing. Accordingly, even if the Union’s
proffered evidence concerning events in May-June 1997 were
credited after full litigation in a reopened hearing, this evi-
dence could not properly be relied upon to find that union
activities were a motivating factor in the Respondent’s deci-
sion, taken some 2-1/2 years earlier.
2. The evidence the Union seeks to adduce in a reopened
hearing, relating to alleged recent events in May–June 1997
involving restaurant employees working in the Food and
Beverage Department, is too remote in time from the events
at issue in this case to bear significantly on the question of
the Respondent’s motives when it dismissed the house-
keepers, who worked in a different department, under a dif-
ferent manager and supervisor.
3. Setting aside the vagueness in some of the Union’s rep-
resentations as to its intended proof, the Union’s proffer ap-
parently involves the Respondent’s alleged tolerance of or in-
difference towards ‘‘reports’’ of alleged misconduct by em-
ployees taking forms other than proxy-punching. Accord-
ingly, if the proffered evidence can be said to have any sig-
nificance at all in terms of assessing the Respondent’s mo-
tives when it fired the housekeepers for supposed proxy-
punching in mid-February 1995, any such significance would
depend on the validity of the Union’s attempt to analogize
the recent alleged misconduct to that attributed to the house-
keepers in mid-February 1995—an analogy that would ap-
pear to be vulnerable to the same criticism that attends at-
tempts to compare apples to oranges.
4. There are indications that the Union’s motion was filed
before the situations which it has invoked have fully ripened.
Thus, in the end, the Union claims only that, ‘‘to date,’’ the
Respondent has taken no ‘‘action’’ to pursue the ‘‘reports’’
it has allegedly received of alleged recent misconduct by
‘‘known antiunion adherents.’’
5. Litigation must end at some point. And if a trial record
is to be reopened whenever the General Counsel or a charg-
ing party in a case such as this one, which turns on employer
motive, avers that a recent occurrence might change the trier-
of-fact’s assessment of the employer’s motives at a much
earlier historical moment, it is doubtful that litigation of such
cases would ever end. The risk is especially present where,
as here, each new instance of alleged disparity in an employ-
er’s handling of a recent instance of alleged employee mis-
conduct would predictably give rise to a new motion by one
or both of the prosecuting parties to reopen the record.
6. Under the statutory scheme, the General Counsel has
virtually unreviewable discretion to determine whether a
Charging Party’s claims warrant submission to an administra-
tive law judge for adjudication; indeed, under Section 3(d)
of the Act, it is implicit that the General Counsel must per-
form a preliminary ‘‘screening’’ of claims before reaching
that determination. And especially where, as here, the Union
has apparently not yet tendered to the General Counsel any
of the witnesses or the evidence on which it relies in support
of its motion to reopen, it would undermine the statutory
scheme for an administrative law judge to bypass the General
Counsel and to conduct his or her own ‘‘inquest’’ into such
claims.
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