Remington Lodging & Hospitality, LLC and Hospitality Staffing Solutions, LLC

National Labor Relations Board - Board Decisions

Feb 12, 2016

363 NLRB No. 112 (N.L.R.B. 2016)

363 NLRB No. 112
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Remington Lodging & Hospitality, LLC and Reming-
ton Lodging & Hospitality, LLC and Hospitality
Staffing Solutions, LLC, joint employers and
Local 947, United Service Workers Union, In-
ternational Union of Journeymen and Allied
Trades. Cases 29–CA–093850 and 29–CA–
095876
February 12, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On May 15, 2013, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
We adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by unlawfully interrogating or threatening employees on six
occasions from May through early August 2012. As to one of those
occasions, in early July, we agree with the judge that the Respondent
violated Sec. 8(a)(1) when Housekeeping Supervisor Percida Rosero
told employee Veronica Flores that the Union would refuse to work
with people who were undocumented. We find it unnecessary to pass
on the judge’s finding that Rosero made additional coercive statements
during this same conversation, as the additional violations would not
affect the remedy.
We also adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by unlawfully interrogating or threatening employees on six
occasions in late August and September 2012. We find it unnecessary,
however, to pass on Human Resources Director Osiris Arango’s Sep-
tember 5 statements to employee Estela Cabrera.
For the reasons stated in the judge’s decision, we adopt his finding
that the Respondent violated Sec. 8(a)(1) by stating in its campaign
literature that it would more strictly enforce workplace rules if the
employees selected the Union. In doing so, we do not rely on Olympic
Supply, Inc. d/b/a Onsite News, 359 NLRB No. 99 (2013), cited by the
judge. We rely instead on DHL Express, Inc., 355 NLRB 1399, 1400
(2010). Furthermore, we reject the Respondent’s contention that the
judge’s ruling permitting the General Counsel to amend the complaint
during the hearing to add this allegation deprived the Respondent of
due process. Under Sec. 102.17 of our Rules, a complaint may be
amended during the hearing “upon such terms as may be deemed just.”
further explained below and to adopt the judge’s recom-
mended Order as modified.2
The Respondent is a hotel management company. At
issue is the Respondent’s conduct at a Hyatt hotel in
Hauppauge, New York, in response to the Union’s ef-
forts to organize the hotel’s housekeeping employees in
2012. The judge found that the Respondent unlawfully
subcontracted the housekeeping work and discharged the
housekeeping employees, and then unlawfully refused to
rehire them 2 months later, when the subcontract was
canceled. The judge further found that the Respondent
unlawfully discharged employee Margaret Loiacono in
January 2013 because it believed she would impede the
Respondent’s antiunion campaign. We adopt these find-
ings, for the additional reasons and with the clarifications
discussed below.
I. THE AUGUST 20 SUBCONTRACTING AND DISCHARGE
AND OCTOBER 19 REFUSAL TO HIRE
The Respondent began managing the Hyatt in Decem-
ber 2011. In April 2012,3 an agent of the Union began
visiting the hotel and communicating with employees
about organizing. As described in more detail in the
judge’s decision, from May through early August, hotel
management coercively interrogated or threatened em-
ployees about union activity on six occasions. Sometime
between mid-June and June 28, the Respondent began to
explore the possibility of outsourcing its housekeeping

To determine whether an amendment is just, the Board evaluates three
factors: (1) whether there was surprise or lack of notice, (2) whether
the General Counsel offered a valid excuse for its delay in moving to
amend, and (3) whether the matter was fully litigated. Stagehands
Referral Service, LLC, 347 NLRB 1167, 1171 (2006). Beginning with
the second factor, we find that the General Counsel offered a valid
excuse for the delay. The leaflet upon which the allegation is based
was within the scope of the General Counsel’s timely subpoena, and the
Respondent did not provide it to the General Counsel until March 13,
2013 (the hearing began on March 6). Thus, any surprise or lack of
notice was owing to the Respondent’s own delay in furnishing the
subpoenaed document. Finally, the complaint was amended on March
18, 2 days before the hearing closed. Thus, the Respondent had the
opportunity to introduce relevant evidence, and it also had the oppor-
tunity to address the lawfulness of the statement in its posthearing brief
to the judge and to us on exceptions. Accordingly, we find no violation
of the Respondent’s due process rights.
2 We have modified the judge’s recommended Order to conform to
the judge’s remedy and the Board’s standard remedial language. In
requiring the Respondent to compensate employees for any adverse tax
consequences of receiving lump-sum backpay awards and to file a
report with the Social Security Administration allocating backpay to the
appropriate calendar quarters for each employee, we rely on Don
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
We shall substitute a new notice to conform to the Order as modified
and in accordance with our decisions in Ishikawa Gasket America, Inc.,
337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004), and
Durham School Services, 360 NLRB No. 85 (2014).
3 All dates are in 2012, unless otherwise noted.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work at the hotel. On August 16, the Respondent entered
into a contract with Hospitality Staffing Solutions (HSS)
to manage the housekeeping operations at the hotel.
On August 20, the Respondent notified its housekeep-
ing employees of the contract with HSS, which would
take effect the following day. The Respondent instructed
the employees to fill out applications if they wished to be
hired by HSS. Later that day, the Union filed its first
representation petition with the Board.4 On August 21,
HSS hired most of the Respondent’s employees. During
August and September, after the HSS contract took ef-
fect, the Respondent complained to HSS about several
issues, including the level of staffing, wages, and the lack
of a trainer. On September 19, HSS notified the Re-
spondent of its intent to terminate the contract in 30 days.
On October 19, the contract termination date, the Re-
spondent fired the discriminatees and told them that the
Respondent would not rehire them. The Respondent
staffed its housekeeping department with a new set of
employees it had recruited earlier and trained offsite.
A. The Subcontracting and Discharges
We agree with the judge’s finding that the decision to
subcontract was motivated by the employees’ union ac-
tivity, and therefore unlawful. The General Counsel met
his initial Wright Line5 burden by showing union activity,
employer knowledge of that activity, and animus. See,
e.g., Approved Electric Corp., 356 NLRB 238 (2010).
The element of union activity is undisputed. As shown, a
union agent began visiting the hotel in April, and the
Respondent’s first steps toward outsourcing the house-
keeping work began soon afterwards. The Respondent’s
knowledge of and animus toward the union activity are
established by the two unlawful interrogations that oc-
curred in May and early June.6 See Atelier Condomini-

4 The Union later withdrew that petition. It filed a new petition on
September 11, which it amended on September 21 and October 16.
5 251 NLRB 1083, 1088 fn. 11, 1089 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must prove, by a preponderance of
the evidence, that the employees’ protected conduct was a motivating
factor in the employer’s decision. To do so, the General Counsel
proves the existence of union activity, employer knowledge of the
union activity, and employer animus against the employees’ protected
conduct. The burden of persuasion then shifts to the employer to show
that it would have taken the same action even in the absence of the
protected conduct. E.g., Donaldson Bros. Ready Mix, Inc., 341 NLRB
958, 961 (2004).
6 As additional evidence of animus, we note that Supervisor Rosero
told employee Maritza Torres on August 21, the day the housekeeping
subcontract took effect, that the subcontracting was happening because
of the Union. See generally TCB Systems, Inc., 355 NLRB 883, 885
(2010) (reasonable to infer that supervisor knows reason for adverse
action even if not personally involved; supervisor’s explanation is
evidence of unlawful motive when set forth as fact and devoid of evi-
um & Cooper Square Realty, 361 NLRB No. 111, slip
op. at 5 (2014) (unlawful interrogations and threats evi-
denced antiunion animus); Davey Roofing, Inc., 341
NLRB 222, 223 (2004) (temporal proximity between
union activity and employer’s adverse action is evidence
of unlawful motivation).7
Turning to the Respondent’s rebuttal burden, we agree
with the judge that the Respondent failed to prove that it
would have subcontracted the work even absent the em-
ployees’ union activity. Indeed, the reasons the Re-
spondent proffered—low customer service scores and
inability to obtain adequate staffing levels—do not with-
stand scrutiny. The Respondent had had low scores for
at least 8 months prior to the subcontracting, and the Re-
spondent acknowledged that the hotel’s low scores were
unrelated to the quality of the employees’ work. The
Respondent’s hotel had ranked at or near the bottom of
all Hyatt hotels in the U.S. since at least December 2011,
when the Respondent took over managing the hotel. But
it was not until shortly after the Respondent learned of
union activity that it decided to subcontract the house-
keeping work. Furthermore, during the 30-day period
between HSS’ September 19 notice that it was terminat-
ing the contract and the October 19 termination date, the

dence suggesting fabrication), enfd. 448 Fed. Appx. 993 (11th Cir.
2011).
An additional unlawful interrogation occurred in late June, when the
director of housekeeping asked an employee to identify a photo of the
union agent who had previously been canvassing the facility. The
judge did not determine whether this incident occurred before or after
the Respondent’s decision to outsource the housekeeping work to HSS.
7 The dissent asserts that the record fails to show that the Respondent
knew of employees’ union activity. We disagree. The Respondent’s
interrogations demonstrate, at the very least, a suspicion that employees
were engaging in union activity, and “knowledge or suspicion” is suffi-
cient to satisfy the knowledge element under Wright Line. See,
e.g., Kajima Engineering & Construction, Inc., 331 NLRB 1604, 1604
(2000). See also Hartman & Tyner, Inc., d/b/a Mardi Gras Casino and
Hollywood Concessions, Inc., 361 NLRB No. 59, slip. op. at 1 fn. 1
(2014) (inferring knowledge based in part on unlawful interrogation);
Evenflow Transportation, Inc., 358 NLRB 695, 697 (2012) (interroga-
tions and threats confirmed general knowledge that a renewed organiz-
ing campaign was under way and that it had taken root among employ-
ees), incorporated by reference 361 NLRB No. 160 (2014); McLean
Roofing Co., 276 NLRB 830, 833 (1985) (interrogations showed that
respondent “specifically suspected” employees’ involvement in union
campaign). In addition to the unlawful interrogations, we note that
after Union Agent Jose Vega began visiting the hotel and distributing
authorization cards, housekeeping employee Veronica Flores became
Vega’s liaison with the other housekeeping employees. Vega and
Flores planned a union meeting for about June 10—before or around
the same time as the Respondent began to explore the possibility of
outsourcing the housekeeping work. Flores later told Vega that man-
agement learned of the meeting, and the meeting was subsequently
canceled. Finally, on July 1, in response to a June 30 HSS email asking
if there were any issues with unions at the property, the Respondent
replied that union organizing was “at play” and had “heated up” within
the past year.
REMINGTON LODGING & HOSPITALITY, LLC 3
Respondent recruited and trained, offsite and in secret, an
entirely new housekeeping staff, undermining its stated
reason for subcontracting: inability to adequately staff
its housekeeping department. Because the evidence es-
tablishes that the Respondent’s proffered reasons are
pretextual, the Respondent necessarily fails to meet its
rebuttal burden. See, e.g., Auto Nation, Inc. and Village
Motors, LLC d/b/a Libertyville Toyota, 360 NLRB No.
141, slip op. at 4 (2014), enfd. sub. nom. AutoNation,
Inc. v. NLRB, 801 F.3d 767 (7th Cir. 2015).
The dissent argues that there is no evidence of discrim-
ination that tended to “encourage or discourage” union
membership, because almost all housekeeping employees
were eventually rehired by HSS for higher wages. But
the Act does not require specific, independent evidence
of a tendency to encourage or discourage union member-
ship. Under Wright Line, supra, which established the
analytical framework, subsequently approved by the Su-
preme Court in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983), for proving dis-
crimination that tends to encourage or discourage union
membership, if the General Counsel establishes that the
discharges were motivated by antiunion animus, and the
employer has not shown it would have taken the same
action in the absence of union activity, the violation has
been established as a matter of black-letter law.8 If the
discriminatees ultimately suffered little or no harm, that
goes to the remedy, not to whether there was a violation
in the first place.9
Finally, the dissent asserts that the joint-employer sta-
tus of the Respondent and HSS after the subcontracting
undermines our finding that the subcontracting was dis-
criminatory or would tend to encourage or discourage
union membership. It argues that the Respondent knew
it would still have a duty to bargain if the employees
selected a union. We disagree. Even assuming the Re-
spondent knew that, the employees would not. Moreo-
ver, even if the Respondent knew that it would have a
bargaining obligation if the Union was certified pursuant
to a vote after the subcontracting, it failed to disclose that

8 Cf. Radio Officers’ Union of Commercial Telegraphers Union,
A.F.L. v. NLRB, 347 U.S. 17, 52 (1954) (“[I]t was eminently reasonable
for the Board to infer encouragement of union membership, and the
Eighth Circuit erred in holding encouragement not proved.”). All of
the cases cited in the dissent on this point predated Wright Line.
9 The dissent’s other arguments on this point are also unpersuasive.
He contends that the employees must not have been “discouraged”
because union activity continued after the subcontracting, but a subjec-
tive finding of encouragement or discouragement has never been re-
quired. See Radio Officers’ Union, supra at 50–51. He further finds no
“adverse action” because most of the employees were rehired by HSS.
The fact that they were rehired, however, does not negate the adverse
action of the initial discharge. Moreover, some employees, as stated
above, were not rehired.
fact to the employees when it announced the subcontract-
ing, or at any time thereafter.10
Accordingly, we affirm the judge’s conclusion that the
Respondent violated Section 8(a)(3) and (1) by discharg-
ing the housekeeping employees and subcontracting their
work.11
B. The Refusal to Hire
We also agree with the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by refusing to
hire the incumbent housekeeping employees on October
19,12 at the termination of the contract with HSS. In
reaching this finding, the judge applied the refusal-to-
hire test stated in FES, a Division of Thermo Power,13
which requires, in part, a showing that the respondent
was hiring or had concrete plans to hire and that the ap-
plicants had experience and training relevant to the avail-
able positions. We find it inappropriate to apply FES
here, where the alleged discriminatees were already per-
forming the work in question. See Planned Building
Services, Inc., 347 NLRB 670, 673 (2006) (holding that
the elements of the General Counsel’s initial burden un-
der FES do not apply where the case is analogous to a
discriminatory discharge because the alleged
discriminatees have already been performing the work).
Rather, we find that Wright Line is the appropriate ana-
lytical framework.
Applying Wright Line, we agree with the judge’s find-
ing that the Respondent decided not to hire the house-
keeping employees because of their continuing union
activities. To begin, the General Counsel has carried his
initial Wright Line burden. Union activity was occurring,

10 To the extent the dissent suggests that the joint-employer finding
means there was no discharge, we disagree. The employees were told
their work was being outsourced, and they were required to reapply for
employment with HSS.
11 The judge’s recommended Order appropriately requires the Re-
spondent to offer reinstatement to all discriminatees discharged on
August 20, 2012, as a result of the Respondent’s unlawful subcontract-
ing, and to make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them. An undeter-
mined number of these employees were not hired by HSS, apparently
because they failed to pass drug screens, background checks, or HSS’
E-Verify requirements. We leave to compliance the question of any
particular discriminatee’s eligibility for reinstatement and backpay.
See, e.g., Rogan Bros. Sanitation, Inc., 357 NLRB 1655, 1658 fn. 4
(2011) (leaving to compliance the effect of employees’ immigration
status on their reinstatement); Tuv Taam Corp., 340 NLRB 756, 760
(2003).
12 The judge found it unnecessary to decide whether the Respond-
ent’s conduct on October 19, as a single employer or joint employer
with HSS, also amounted to an unlawful discharge. The judge rea-
soned that the remedy—(re)instatement and backpay—would be the
same. There are no exceptions to the judge’s failure to find the October
19 unlawful discharge violation.
13 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd.
301 F.3d 83 (3d Cir. 2002).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with the Respondent’s knowledge, before and during the
brief period of the subcontract. Specifically, the Union
filed a new representation petition on September 11 and
amended it on October 16, just days before the termina-
tion of the contract. Animus is established by the multi-
ple unlawful interrogations and threats that occurred be-
fore and throughout the duration of the contract.
In agreement with the judge, we find that the Re-
spondent’s asserted reasons for not hiring the
discriminatees are pretextual. Specifically, we reject the
Respondent’s contention that it decided not to hire the
current staff because it thought that HSS would try to
employ those staff members elsewhere, leaving the Re-
spondent to hire and train a new staff when the contract
terminated. The record evidence directly contradicts this
contention. HSS made it plain on September 19, when it
gave notice that it would terminate the contract in 30
days, that the Respondent was free to rehire the existing
staff without penalty. Notwithstanding HSS’ assurances,
the Respondent covertly recruited and trained an entirely
new housekeeping staff before October 19.
Because the Respondent’s asserted reasons were
pretextual, it is unnecessary to reach the second step of
the Wright Line analysis. See, e.g., Libertyville Toyota,
above. Accordingly, we affirm the judge’s finding that
the Respondent violated Section 8(a)(3) and (1) by fail-
ing to hire the housekeeping employees after the termina-
tion of the HSS contract.
II. EMPLOYEE MARGARET LOIACONO’S DISCHARGE
We agree with the judge that the Respondent violated
Section 8(a)(1) by discharging employee Loiacono. As
explained below, the evidence shows that the Respondent
terminated Loiacono because it believed that she had
engaged in protected activity and would continue to do
so.
In late December 2012, as part of its campaign against
the Union, the Respondent distributed to each employee
a pie chart setting forth the employee’s compensation
and how it was allocated. The ostensible purpose of the
chart was to demonstrate to employees that they received
compensation and benefits beyond their base salary. On
December 30, Loiacono, a lobby ambassador charged
with greeting guests, left her post for 10 to 15 minutes to
discuss her pie chart with Supervisor Yohenna Borrero.
Loiacono informed Borrero that the chart was inaccurate
because it allocated a portion of her compensation to a
uniform allowance, and she did not wear a uniform.
Loiacono stated that other employees’ charts might also
contain mistakes. Later that day, Loiacono repeated her
concerns to the Respondent’s general manager, Jeff
Rostek, and suggested that the chart be corrected. Still
later that day, management spoke to Loiacono and two
other employees about the difficulty employees would
face in obtaining a collective-bargaining agreement and
the Respondent’s purported freedom not to honor one.
The next day, the Respondent’s housekeeping manag-
er, Andrew Arpino, sent Rostek an email containing a
“statement” of Supervisor Borrero recounting her con-
versation with Loiacono the previous day. The statement
purported to be Arpino’s typewritten transcription of
Borrero’s oral account. According to the statement,
Loiacono asserted that the Respondent should pay her the
equivalent of a uniform allowance and should do the
same for Borrero, accused the Respondent of “lying to
the people,” said “that was against the law,” and threat-
ened to sue the hotel. The statement also noted that
Loiacono had been communicating with another employ-
ee, Ken, about the pie chart discrepancies, and that
Loiacono was waiting for Ken to discuss the issue with
Rostek. The Respondent discharged Loiacono on Janu-
ary 2, 2013.
The judge found that Loiacono’s conduct on December
30 was not concerted, and there are no exceptions to that
finding. Nevertheless, we agree with the judge that her
discharge was unlawful. An election petition was pend-
ing and the pie charts were distributed as part of the Re-
spondent’s antiunion campaign. Arpino’s email, which
the judge characterized as “colorful,” makes clear that
management was sufficiently concerned about
Loiacono’s complaints to take a statement from Borrero
and forward it to high-level management.14 Loiacono
was discharged 2 days later. Regardless of whether
Loiacono’s initial complaints constituted Section 7 activ-
ity, the record supports an inference that the Respondent
believed that Loiacono would speak out against the Re-
spondent’s position in the campaign and would incite
others to do the same. By discharging her for that rea-
son, the Respondent violated Section 8(a)(3) and (1) of
the Act. See Dayton Hudson Department Store Co., 324
NLRB 33, 35 (1997) (it is “immaterial that the employee
was not in fact engaging in union activity as long as that
was the employer’s perception and the employer was
motivated to act based on that perception”); see also
Parexel International, LLC, 356 NLRB 516, 517 (2011)
(employer violated 8(a)(1) by discharging an employee
to prevent her from discussing wages and discrimination
with other employees; regardless of whether the employ-
ee’s initial conversations were protected, her discharge
was “a pre-emptive strike to prevent her from engaging
in activity protected by the Act”).15

14 The judge also noted that the Respondent did not offer testimony
from Borrero.
15 Contrary to the dissent, the legality of the discharge does not turn
on whether Loiacono in fact engaged in protected concerted activity.
REMINGTON LODGING & HOSPITALITY, LLC 5
The Respondent argues that Loiacono was discharged
for leaving her post and that it had previously disciplined
or discharged two other employees for the same infrac-
tion. Those two employees, however, were not similarly
situated to Loiacono; they were disciplined for ignoring
lobby guests while engaging in a sports discussion. The
context surrounding Loiacono’s infraction was markedly
different: she was away from the lobby specifically be-
cause she was talking to management about the discrep-
ancy in the pie charts, materials distributed by the Re-
spondent to advance its antiunion campaign.
Accordingly, we affirm the judge’s finding that
Loiacono’s discharge violated Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Reming-
ton Lodging & Hospitality, LLC, Hauppauge, New York,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Insert the following as paragraph 2(e) and reletter the
subsequent paragraphs.
“(e) Compensate the discriminatees for the adverse in-
come tax consequences, if any, of receiving a lump-sum
backpay award, and file a report with the Social Security
Administration allocating backpay to the appropriate
calendar quarters for each employee.”
Dated, Washington, D.C. February 12, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
This case involves a Hyatt hotel that had outsourced its
housekeeping operations to a vendor, Hospitality Staff-

Rather, the key point is that the Respondent discharged her because it
believed that she had done so or would do so. See Dayton Hudson
Department Store Co., supra; Monarch Water Systems, 271 NLRB 558,
558 fn. 3 (1984) (“[A]ctions taken by an employer against an employee
based on the employer’s belief the employee engaged in or intended to
engage in protected concerted activity are unlawful even though the
employee did not in fact engage in or intend to engage in such activi-
ty.”).
ing Solutions (HSS). In December 2011, Respondent
Remington Lodging & Hospitality, LLC (Remington)
took over the hotel and directly hired HSS’ housekeeping
employees. Remington experienced retention problems
and low guest satisfaction scores for about 6 months. On
June 28, 2012,1 Remington contacted HSS about possibly
reinstating the outsourcing of housekeeping operations.
On August 16, Remington and HSS executed an out-
sourcing contract with an effective date of August 21.
On August 20, Remington informed the housekeeping
employees that HSS was taking over the housekeeping
function, and Remington reinstituted the outsourcing of
housekeeping operations to HSS the following day. HSS
rehired virtually all housekeeping employees with sub-
stantial pay raises.2 However, Remington continued to
employ a director of housekeeping and two housekeep-
ing supervisors.3 On September 19, HSS gave notice to
Remington that it was terminating the housekeeping con-
tract, and the contract was terminated effective October
19. On October 19, Remington resumed responsibility
for the hotel’s housekeeping function, except all of the
HSS housekeeping employees had their employment
terminated, and Remington hired an entirely new set of
housekeeping employees.
The record shows that there was union organizing ac-
tivity at the hotel beginning in April 2012, when a union
organizer visited the hotel, and that management had
learned of organizing activity by June 10. On August 20,
after Remington informed the housekeeping employees
that HSS was taking over housekeeping operations, the
Union filed a representation petition seeking to represent
the housekeeping employees. A new petition seeking to
represent those employees was filed on September 11
and was subsequently amended.4

1 Unless otherwise indicated, all dates hereafter are in 2012.
2 One former Remington employee was excluded from HSS’ agree-
ment to offer employment to all Remington housekeeping employees
(see judge’s decision at fn. 5). However, there is no allegation that this
individual’s exclusion resulted from unlawful antiunion motivation or
the employee’s involvement in protected concerted activities. The
record also reveals that some employees were not hired by HSS be-
cause of their inability to pass a drug screen or to establish lawful work
authorization, required under the Immigration Reform and Control Act,
when their immigration status came into question after HSS ran them
through E-Verify.
3 Based on Remington’s continued employment of the director of
housekeeping and two housekeeping supervisors, the judge found that
Remington retained supervisory control over the housekeeping em-
ployees, and he concluded that Remington and HSS were joint employ-
ers of the housekeeping employees during the period of the Remington-
HSS subcontract. See judge’s decision at fn. 9. There are no excep-
tions to the judge’s joint-employer finding, with which I agree.
4 The September 11 petition named Remington and HSS as the em-
ployers, but the more recent amended petition named only Remington
as the employer.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I agree with my colleagues that Remington coercively
interrogated at least one employee regarding union ac-
tivities in violation of Section 8(a)(1) of the Act, and that
certain statements by Remington constituted union-
related threats also in violation of Section 8(a)(1).5 I also
agree that Remington violated Section 8(a)(3) and (1) of
the Act when it refused, based on antiunion considera-
tions, to hire the housekeeping employees on or about
October 19, the date the HSS contract terminated.6 I join

5 For the reasons described by the judge and my colleagues, I agree
that Remington violated Sec. 8(a)(1) when (i) Director of Housekeep-
ing Andrew Arpino in June called Veronica Flores into his office and
questioned her about the Union; (ii) Housekeeping Supervisor Percida
Rosero in July informed Flores that the Union would refuse to work
with employees who were undocumented; and (iii) Housekeeping Su-
pervisor Rosero in early August stated that employees would be dis-
missed if they talked to the Union and the Union would not work with
employees who were undocumented. I find it unnecessary to reach the
other statements my colleagues find to be interrogations or threats in
violation of Sec. 8(a)(1) because doing so would not affect the remedy.
I agree with my colleagues that Remington violated Sec. 8(a)(1) by
stating in its campaign literature that it would more strictly enforce
workplace rules if the employees selected the Union, and I also agree,
for the reasons my colleagues state, that the judge properly permitted
the General Counsel to amend the complaint to add this allegation.
6 The record supports a finding that Remington was motivated by an-
tiunion discrimination when it decided not to hire the former HSS
housekeeping employees at the termination of the outsourcing ar-
rangement, and I agree that Remington did not satisfy its burden under
Wright Line to prove that it would have failed to employ the HSS
housekeeping employees even in the absence of union considerations.
Wright Line, a division of Wright Line, Inc., 251 NLRB 1083, 1086
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982); approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). In particular, as the judge noted, Remington did not
call a single witness who could identify who made the decision not to
hire the HSS housekeeping employees or when that decision was made,
nor did any Remington official testify that he or she made this decision.
Although Remington explained the prior outsourcing of housekeeping
operations to HSS based primarily on low guest satisfaction scores—
and as I explain below, I believe this prior outsourcing was lawful—
this does not reasonably explain its failure to hire any HSS housekeep-
ing employees when the outsourcing arrangement ended. Remington
did not attribute the low guest satisfaction scores to the quality of the
housekeeping staff. Rather, the hotel received low guest satisfaction
scores for its guest rooms because (as the judge found) “Remington
simply could not employ enough [housekeeping] workers to get the job
done right.” The record also renders implausible the refusal-to-hire
justifications proffered by Remington’s witnesses: that (to quote the
judge) Remington otherwise “couldn’t be sure that HSS wouldn’t try to
have these employees work elsewhere” and “could not be sure it would
have an adequate staff available when it resumed control of the house-
keeping operations.” These explanations are contradicted by evidence
that when it received 30 days’ notice of contract cancellation from
HSS, Remington could have contacted the HSS housekeeping employ-
ees to ascertain their willingness to accept reemployment by Reming-
ton. Furthermore, HSS’ notice of termination stated that HSS had no
objection if Remington hired “HSS employees currently employed at
the property.” Finally, HSS had been unable to secure other business in
the vicinity of Remington’s Hauppauge, New York Hyatt hotel, and the
judge found this was known to Remington, rendering implausible Re-
my colleagues in finding that this mass refusal-to-hire
violation constitutes egregious misconduct.7 However, I
believe the record fails to support a finding that Reming-
ton violated Section 8(a)(3) when it subcontracted the
housekeeping operations to HSS or terminated the em-
ployment of Margaret Loiacono. As to these two allega-
tions, therefore, I respectfully dissent for the reasons set
forth below.
1. Remington’s Reinstatement of Housekeeping Out-
sourcing to HSS Did Not Violate the Act. When Reming-
ton began managing the Hyatt hotel located in
Hauppauge, New York, this was the first Hyatt hotel that
Remington had managed, and Remington wanted to es-
tablish its reputation within Hyatt as a manager of the
Hyatt brand. When Remington took over the hotel’s
management, the hotel’s guest satisfaction scores were in
the bottom percentile for all Hyatt hotels. After 6
months of persistently low scores, the Respondent looked
at the possibility of reinstating Hyatt’s previous practice
of subcontracting the hotel’s housekeeping operations to
HSS. As stated above, Remington contacted HSS on
June 28, various exchanges and negotiations ensued, and
Remington and HSS entered into an outsourcing contract
on August 16, which was announced to the housekeeping
employees on August 20 and became effective on August
21. When the outsourcing arrangement was implement-
ed, all of Remington’s housekeeping employees (with
the exceptions noted above resulting from HSS’ normal
pre-employment screening requirements)8 continued per-
forming the same work at the same location and with the
same supervisors. Moreover, the judge found that the
housekeeping employees received substantial wage in-
creases, based on HSS’ insistence that their prior wages
were not high enough to attract suitable and sufficient
employee applicants.
When dealing with fundamental questions such as
whether a particular entity desires to continue its status
as an employer, the courts have emphasized the need to
ensure that findings of unlawful motivation are based on
record evidence. In Textile Workers Union of America v.
Darlington Mfg. Co., 380 U.S. 263 (1965), the Supreme
Court quoted with approval the court of appeals’ obser-
vation that the Act “does not compel a person to become

mington’s claimed concern that HSS might “try to have these employ-
ees work elsewhere.”
7 Like my colleagues, I adopt the judge’s recommended broad cease-
and-desist order. See Hickmott Foods, 242 NLRB 1357, 1357 (1979)
(broad order warranted where respondent is shown to have a proclivity
to violate the Act or has engaged in egregious or widespread miscon-
duct).
8 As noted in fn. 2, several individuals were not employed by HSS,
but there is no evidence that this resulted from antiunion discrimination
or protected concerted activity in violation of Sec. 8(a)(3) or (1).
REMINGTON LODGING & HOSPITALITY, LLC 7
or remain an employee. It does not compel one to be-
come or remain an employer. Either may withdraw from
that status with immunity, so long as the obligations of
any employment contract have been met.”9 More gener-
ally, the Supreme Court stated in American Ship Building
Co. v. NLRB, 380 U.S. 300 (1965):
Section 8(a)(3) prohibits discrimination in regard to
tenure or other conditions of employment to discourage
union membership. Under the words of the statute,
there must be both discrimination and a resulting dis-
couragement of union membership. It has long been
established that a finding of violation under this section
will normally turn on the employer’s motivation. . . .
But we have consistently construed the section to leave
unscathed a wide range of employer actions taken to
serve legitimate business interests in some significant
fashion, even though the act committed may tend to
discourage union membership. . . . Such a construction
of § 8(a)(3) is essential if due protection is to be ac-
corded the employer’s right to manage his enterprise.10
In my view, there are several deficiencies in my col-
leagues’ finding that Remington’s outsourcing of house-
keeping operations to HSS resulted from unlawful anti-
union motivation in violation of Section 8(a)(3).
First, Section 8(a)(3) only prohibits discrimination “in
regard to hire or tenure of employment or any term or
condition of employment” that tends “to encourage or
discourage membership in any labor organization.” See
Radio Officers’ Union of Commercial Telegraphers Un-
ion v. NLRB, 347 U.S. 17, 42–43 (1954) (“The language
of § 8(a)(3) is not ambiguous. The unfair labor practice
is for an employer to encourage or discourage member-
ship by means of discrimination. . . . Nor does this sec-
tion outlaw discrimination in employment as such; only
such discrimination as encourages or discourages mem-

9 380 U.S. at 271 (emphasis added). Of course, an employer violates
Sec. 8(a)(3) when it sets up a “runaway shop” by relocating or transfer-
ring work based on antiunion discrimination, or when it engages in
subcontracting that displaces its own employees for unlawful reasons,
see, e.g., Darlington, 380 U.S. at 272–273 & fns. 16 & 18, or when it
engages in a discriminatory refusal to hire a predecessor’s employees to
defeat bargaining obligations associated with a potential successorship
finding, see, e.g., U.S. Marine Corp., 293 NLRB 669, 670 (1989), enfd.
944 F.2d 1305 (7th Cir. 1991), cert. denied 503 U.S. 936 (1992).
10 Id. at 311 (emphasis added; citations omitted). See also Darling-
ton, 380 U.S. at 276, where the Supreme Court stated: “We have here-
tofore observed that employer action which has a foreseeable conse-
quence of discouraging concerted activities generally does not amount
to a violation of § 8(a)(3) in the absence of a showing of motivation
which is aimed at achieving the prohibited effect. . . . In an area which
trenches so closely upon otherwise legitimate employer prerogatives,
we consider the absence of Board findings on this score a fatal defect in
its decision.”
bership in a labor organization is proscribed.”); B.G.
Costich & Sons, Inc. v. NLRB, 613 F.2d 450, 455 (2d Cir.
1980) (“[I]t is patent that no inquiry into motivation is
necessary unless that conduct is first found to have en-
couraged or discouraged union membership . . . or at the
very least, until it is shown that the conduct ‘could have
adversely affected employee rights to some extent. . . .’”)
(quoting NLRB v. Great Dane Trailers, Inc., 388 U.S. 26,
34 (1967)). Here, the record fails to support an inference
that the outsourcing of housekeeping functions to HSS
tended to “encourage or discourage” union membership.
Virtually everyone remained employed, they received
higher wages (at HSS’ insistence and following negotia-
tions between HSS and Remington), the employees con-
tinued to perform the same work in the same location,
and they had the same supervisors. Nor is there any evi-
dence that the outsourcing caused the housekeeping em-
ployees to be “encouraged or discouraged” in their union
organizing efforts. After employees were informed that
HSS was assuming responsibility for housekeeping, a
representation petition was filed with the Board; a second
representation petition was filed on September 11 (nam-
ing HSS and Remington as the employer), and amended
petitions were filed on September 21 and October 16.
Second, the judge found, and I agree, that Remington
remained a joint employer of the housekeeping employ-
ees following the outsourcing to HSS, based on Reming-
ton’s continued supervision of those employees.11 The
fact that the HSS outsourcing did not discontinue Re-
mington’s legal status as an employer of the housekeep-
ing employees further undermines the finding that the
outsourcing constituted “discrimination” that tended to
“encourage or discourage” union activities.12
Third, contrary to my colleagues’ analysis of the out-
sourcing under Wright Line, I believe the record fails to
support a finding that Remington had knowledge of un-

11 The outsourcing in the instant case is materially different from that
in CNN America, Inc.,361 NLRB No. 47 (2014), where I dissented
from the majority’s finding of joint-employer status, which they found
notwithstanding CNN’s 20-year history of utilizing technical personnel
supplied by a contractor, during which the contractor and its predeces-
sors (and not CNN) were recognized as the “employer,” CNN did not
employ any personnel tasked with supervising contractor employees,
and the applicable services agreement explicitly made the contractor
solely and absolutely responsible for “direction of the work force and
other matters of personnel and labor relations.” Id., slip op. at 30.
12 The majority asserts that the employees would not have known
that Remington would still have a duty to bargain if the employees
selected a union. However, the Union’s initial representation petition
(Case 29–RC–087706) identified Remington as the employer, and the
second representation petition (Case 29–RC–089045) listed both Re-
mington and HSS as the employer, indicating that the Union knew that
Remington would have to bargain with the Union if employees selected
it as their representative. I believe it can reasonably be inferred that the
Union would have communicated this fact to the employees as well.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ion activity by employees either on August 16, when it
entered into the contract with HSS, or August 20, when it
announced the outsourcing to the housekeeping employ-
ees. The judge found that a union organizer visited the
hotel and communicated with “some of the housekeeping
staff” beginning in April, but there is no evidence that
Remington knew of these activities. The judge found
that a union meeting had been planned for June 10, but
this meeting was canceled. After June 10—the date by
which the judge found Remington must have known
“that a union agent was soliciting employees inside the
hotel”—a handful of conversations about union activity
took place between employees and Director of House-
keeping Andrew Arpino or Housekeeping Supervisor
Percida Rosero, but there is no evidence that Arpino or
Rosero knew or were advised that any employee support-
ed the Union or engaged in union activity.13 In the June

13 I agree that at least one of these conversations involved coercive
interrogation in violation of Sec. 8(a)(1). However, it is an entirely
different question whether the evidence reveals that Remington knew
that any housekeeping employee supported the Union or engaged in
union activities. My colleagues contend that Remington’s interroga-
tions demonstrate that it knew or at least suspected employees were
engaging in union activity, citing Kajima Engineering & Construction,
Inc., 331 NLRB 1604 (2000). But in Kajima, the Board relied on evi-
dence that the employer interrogated employees regarding how they
would vote in an upcoming representation election to support a finding
that the employer “harbored animus against the [u]nion.” Id. at 1604.
Obviously, the employer in Kajima already knew that its employees
had engaged in union activity, since otherwise an election could not
have been scheduled. Here, by contrast (and as detailed below), the
first representation petition was filed after Remington contacted HSS to
explore the possibility of outsourcing housekeeping, after Remington
and HSS executed an outsourcing contract, and after Remington an-
nounced the outsourcing decision to the housekeeping employees.
Moreover, simply as a matter of logic, asking questions cannot per se
establish knowledge of what is asked about, since the usual purpose of
asking questions is to learn something one does not already know. The
cases cited by my colleagues do not hold otherwise, as the Board in
each case did not find knowledge based solely on interrogations but
rather relied on other circumstantial evidence as well. See Hartman &
Tyner, Inc., d/b/a Mardi Gras Casino and Hollywood Concessions,
Inc., 359 NLRB No. 100, slip op. at 2 (2013) (employer’s knowledge of
terminated employee’s union activity inferred from circumstantial
evidence, including, in addition to interrogation of employee, timing of
termination, supervisor’s “veiled reference” to employee’s union activi-
ty, and employer’s pretextual reasons for termination), incorporated by
reference in 361 NLRB No. 59 (2014); Evenflow Transportation, Inc.,
358 NLRB 695, 697 (2012) (employer’s knowledge of laid-off employ-
ees’ union activity inferred from circumstantial evidence, including
employer’s interrogations and threats directed at laid-off employees and
employer’s pretextual reasons for layoffs), incorporated by reference in
361 NLRB No. 160 (2014); McLean Roofing Co., 276 NLRB 830, 833
(1985) (interrogations showed employer “specifically suspected” dis-
charged employees’ involvement in union campaign where they oc-
curred shortly after employer received union’s request for recognition).
In this case, there is no evidence Remington knew of any employee
union activity, and Remington’s questions were aimed at learning
whether employees were engaging in union activity. For these reasons
10 conversation between Arpino and employee Veronica
Flores, Flores was asked if she “knew anything about a
union,” and Flores stated, “[S]he didn’t know anything.”
Other record evidence likewise establishes that Reming-
ton management was advised that employees either
lacked knowledge of or did not support the Union.14 The
Union did not receive signed authorization cards from
any employees until July 4, which was after Remington
and HSS had already exchanged phone calls and emails
regarding potentially reinstating the HSS subcontracting
arrangement.
Moreover, the Union’s first representation petition was
filed after Remington advised employees that it was sub-
contracting all housekeeping operations. According to
the record and the judge’s decision, the relevant events
took place in the following order: (i) beginning June 18,
Remington and HSS discussed reinstating the subcon-
tracting of housekeeping operations; (ii) on August 16,
Remington and HSS executed an agreement, with an
effective date of August 21; (iii) on August 20, Reming-
ton announced the subcontract at a meeting with employ-
ees; and (iv) as the judge correctly found, “[a]fter the
[employee] meeting was held on August 20, the Union
filed its first representation petition on the same date”
(emphasis added). Thus, the record fails to show that
Remington had knowledge of any employee support for
the Union or other employee union or other protected
concerted activities prior to either August 16, when it
entered into the outsourcing agreement with HSS, or
August 20, when it announced the arrangement to em-
ployees.
Fourth, even assuming Remington suspected employee
union activity when it entered into the subcontract with
HSS, I believe the evidence does not support a finding
that the subcontracting decision was motivated by anti-
union considerations. Here, several uncontroverted facts,
which my colleagues disregard or discount, warrant em-

and the reasons described in the text, I believe the record fails to sup-
port a finding that Remington had such knowledge.
14 Employee Ninfa Palacios testified that, in May, Supervisor Rosero
asked about a “union meeting,” and Palacios stated she knew “nothing”
and “had not been invited to any meeting,” although Rosero allegedly
described “some rumors” about a meeting. Employee Flores testified
that, in late June, Housekeeping Director Arpino showed her a photo
and asked if the person was Jose Vega (a union organizer), and Flores
“told Arpino that it was not him.” On July 1, in response to HSS’ June
30 email asking about unions at the property, Remington replied that
union organizing “has been in play for many years and has also heated
up in the past year”—but this reply is consistent with the judge’s find-
ing that “no later than June 10, 2012 . . . [management] was aware that
a union agent was soliciting employees inside the hotel” (emphasis
added). As indicated in the text, the judge made no finding that Re-
mington had knowledge of employee support for the Union or union
activities by employees prior to August 20, the date the Union’s first
petition was filed.
REMINGTON LODGING & HOSPITALITY, LLC 9
phasis. To begin with, housekeeping operations were
already subcontracted to HSS when Remington took
over management of the hotel. Although Remington
decided to employ the housekeeping employees directly,
it accomplished this by hiring the housekeeping employ-
ees and their supervisors previously employed by HSS.
Moreover, its subsequent decision to reinstate the out-
sourcing arrangement was not unprecedented. Although
Remington’s usual practice has been to directly employ
housekeeping personnel, it has subcontracted some func-
tions in the past, including the housekeeping function.
See judge’s decision at fn. 2.
Significantly, the record contains customer satisfaction
surveys for the Hauppauge, New York Hyatt over an
extended period of time, and those surveys placed the
hotel at or near the bottom of all full service Hyatt ho-
tels.15 No evidence contradicts Remington’s explanation
that the crux of the problem was turnover and an inability
to secure enough housekeeping staff, and Remington’s
actions were consistent with the existence of these prob-
lems. Remington outsourced the housekeeping function
to HSS in part because it believed HSS was in a better
position to get sufficient staff for the hotel. Remington
also acted consistently with its staffing concerns when it
agreed, after extensive negotiations with HSS, to incur
higher costs so that HSS could give the housekeeping
employees substantial wage increases, with future new
hires also to be paid at a higher rate than new hires were
paid by Remington—increases that HSS believed were
necessary to address Remington’s staffing issues. The
reasons articulated by Remington for the outsourcing of
housekeeping operations to HSS are consistent with the
nature, timing, and sequence of events, in addition to
being similar to considerations that often result in sub-
contracting.16 Contrary to the view expressed by my

15 The judge discounted these survey scores because, first, Reming-
ton did not introduce evidence regarding “how these [low] scores com-
pared to Hyatt’s scores when it along with HSS ran the hotel and its
housekeeping department before Remington took over,” and second,
“there was no evidence of any communications between Remington,
Hyatt or the hotel’s owners indicating . . . any concerns about the scores
after Remington had taken over.” In my view, whenever a company,
such as Remington, assumes responsibility for managing a full service
Hyatt hotel and is confronted with ongoing low customer satisfaction
scores that place the hotel at or near the bottom of all full service Hyatt
hotels, more evidence is not needed to establish credible justification
for taking action, including the subcontracting implemented by Re-
mington here.
16 As to the timing and sequence of events, I disagree with my col-
leagues’ argument that low customer satisfaction surveys for a period
of 8 months after Remington took over the hotel’s operation could not
reasonably have prompted Remington to engage in the subcontracting.
It is entirely plausible that a new hotel management company like Re-
mington, after discontinuing its predecessor’s outsourcing of house-
keeping operations, would have waited 6 months before initiating a
colleagues, I find no inconsistency between Remington’s
reliance on the low satisfaction survey scores as a justifi-
cation for the subcontracting, and its belief that the low
scores were unrelated to the quality of the housekeeping
employees’ work.17 In my view, there is also no legal or
factual support for the judge’s statement that certain rea-
sons cited by Remington Divisional Manager Sileshi
Mengiste in support of the HSS subcontracting arrange-
ment were “somewhat bogus.”18 Also, as noted previ-

departure from its usual practice of directly employing housekeepers,
and the record establishes that negotiations between Remington and
HSS took approximately 2 additional months to complete.
17 Remington’s witnesses testified that the low scores were attributa-
ble to turnover issues and a problem getting enough housekeeping staff,
and it was reasonable for Remington to believe that HSS, in the busi-
ness of providing housekeeping staffing services, would have greater
expertise and success dealing with these issues, particularly in conjunc-
tion with the substantial wage increases that HSS implemented. More-
over, the absence of quality problems was consistent with Remington’s
requirement that HSS hire Remington’s existing housekeeping employ-
ees.
18 See judge’s decision at fn. 7. For example, the judge dismissed
the suggestion in Mengiste’s email, prepared the day that the Supreme
Court decided National Federation of Independent Business v. Sebelius,
132 S.Ct. 2566 (2012), that the Supreme Court’s ruling on the Afforda-
ble Care Act might expose the hotel to increased healthcare expendi-
tures in the future. The judge discounted this statement because (he
reasoned) the Affordable Care Act (ACA) was not going to be effective
“for at least a year and would not really affect an employer that already
was providing health insurance to its employees.” One need not recon-
cile the divergent views that exist regarding the ACA to recognize that
the judge’s analysis here is simply wrong: as of June 2012, countless
employers—including those that already provided health insurance
coverage—had profound concerns about the ACA’s impact on future
cost increases. See, e.g., “Rachel Maddow, Ed Meese and others react
to the health care ruling,” The Washington Post (June 29, 2012) (Karen
Ignagni, President of America’s Health Insurance Plans, quoted as
stating that the “cumulative effect of [ACA] provisions will result in
higher costs and coverage disruptions,” and “[w]e must also address the
unsustainable rise in medical costs that are burdening families and
employers”). http://www.washingtonpost.com/opinions/topic-a-parsing-the-
supreme-courts-ruling-on-health-care/2012/06/28/gJQAGwNN9V_story.html
(last visited May 1, 2015). Similarly, as described by the judge,
Mengiste believed subcontracting could permit Remington to “lower
costs because a contractor might be able to lower wage rates and be-
cause various of the existing employee costs . . . would be carried by
HSS instead of Remington” (judge’s decision at fn. 7). The judge
regarded such reasoning as “naïve” because, in his view, it was a cer-
tainty that HSS “would take on these costs” and would then “negotiate
a contract . . . setting a price to offset the costs and earn a profit.” This
criticism fails to acknowledge that countless instances of subcontract-
ing result from an expectation that a contractor, for several reasons
(e.g., specialized expertise, economies of scale, experience), can pro-
vide services at a lower cost than that incurred by the contracting em-
ployer. Indeed, in Fibreboard—the leading Supreme Court case ad-
dressing employer bargaining obligations involving subcontracting—
this was precisely the rationale that prompted the employer to contract
out its maintenance work. See Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203, 206–207 (1964) (the contractor “assured the
Company that maintenance costs could be curtailed by reducing the
work force, decreasing fringe benefits and overtime payments, and by
preplanning and scheduling the services to be performed,” notwith-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ously, the subcontracting to HSS appears to have been
terribly ill-suited to discourage housekeeping employees
from supporting a union because Remington required
HSS to hire all Remington housekeeping employees
(subject only to conventional pre-employment require-
ments imposed by HSS that no evidence suggests were
attributable to unlawful antiunion discrimination).
As noted above, I agree that the Respondent violated
the Act based on its discriminatory failure to hire HSS’
employees when HSS terminated the subcontracting ar-
rangement effective October 19. However, I believe the
record fails to support a finding that Remington’s rein-
statement of outsourcing to HSS constituted “discrimina-
tion” that tended to “encourage or discourage” union
membership, which is a prerequisite to any violation of
Section 8(a)(3). Nor do I believe the record establishes
that Remington had knowledge of employee support for
the Union or of other protected concerted activities by
employees as of August 16, when Remington entered
into the outsourcing agreement with HSS, or August 20,
when it announced the outsourcing to employees. Final-
ly, in my view, the evidence does not permit the General
Counsel to satisfy his burden of proving that antiunion
considerations were a motivating factor responsible for
Remington’s outsourcing of housekeeping operations.
And even if Respondent had mixed motives, I believe the
facts—especially Remington’s insistence that HSS retain
Remington’s housekeeping employees, and the legiti-
mate reasons articulated by Remington for outsourcing
the housekeeping function to HSS—warrant a finding
that Remington would have subcontracted the house-
keeping function to HSS without regard to union consid-
erations.19

standing the Company’s responsibility to cover “the costs of the opera-
tion plus a fixed fee of $2,250 per month”).
19 My colleagues attach weight to a comment by Housekeeping Su-
pervisor Rosero—absent any evidence that Rosero was involved in
Remington’s subcontracting decision—who allegedly stated that the
subcontracting occurred because of the Union, and the majority cites
TCB Systems, Inc., 355 NLRB 883, 885 (2010), enfd. mem. 448 Fed.
Appx. 993 (11th Cir. 2011), for the proposition that it is reasonable to
infer that a supervisor knows the reason for an adverse action even if
not personally involved. However, in TCB Systems, there was an ad-
verse action. There, when a new employer won a contract to clean
buildings, the contractor refused to hire several of the most vigorous
union supporters, and the supervisor named those discriminatees and
said they had been fired because they showed strong support for the
union. Here, by contrast, there was no adverse action. Remington
required HSS to hire its housekeeping employees (and all but a handful
who failed to pass HSS’ lawful pre-employment screening were in fact
hired), and those employees continued performing housekeeping ser-
vices at the hotel throughout the duration of the subcontract—at higher
wages than before.
For reasons similar to those expressed above, I believe the remedy
devised by the judge and approved by my colleagues for the subcon-
tracting of housekeeping operations to HSS is inappropriate. Having
2. Remington’s Discharge of Margaret Loiacono Did
Not Violate the Act. Unrelated to the outsourcing of
housekeeping operations, Remington employed a proba-
tionary employee, Margaret Loiacono, as a “lobby am-
bassador.” Her job duties required her to be present in
the hotel lobby during periods of high guest checkout,
answering guests’ questions and helping to solve their
problems. On December 30, 2012, during a peak check-
out period, Loiacono left the lobby for approximately
10–15 minutes to complain to a supervisor about inaccu-
racies in a “pie chart” she had received from Remington,
which purported to depict how her compensation was
allocated. Loiacono complained to Yohenna Borrero, a
housekeeping supervisor, that her pie chart incorrectly
allocated a certain amount to a “uniform allowance,”
since Loiacono did not wear a uniform. Also on Decem-
ber 30, Loiacono had a similar conversation about the pie
chart with General Manager Jeff Rostek, during which
she stated she had been a member of a New York State
employees’ union. On December 31, Rostek received an
email from Supervisor Borrero, which stated, among
other things, that Loiacono “was calculating . . . all of the
money since she started working here that she should get
for the dry cleaning” (referring to the uniform allowance)
and that Loiacono stated, “[T]hat is not legal, putting
things that they are not getting and lying to the people
and that was against the law.”
As Loiacono was approaching the end of her proba-
tionary period, Remington had to decide whether or not
to continue her employment. Based in part on other con-
cerns, but specifically referencing Loiacono’s absence
from the lobby on December 30 while complaining to
Borrero, Remington decided to terminate Loiacono’s
employment. The judge correctly noted that Loiacono’s
“complaint” about the pie chart, “as described by her
own testimony,” was “not really a complaint about her
actual compensation,” nor was Loiacono “speaking on

found, erroneously, that Remington “illegally made a decision to con-
tract out the housekeeping department to HSS,” the judge concluded
that “given the chain of causation, Remington is legally responsible for
what happens to those employees thereafter” (emphasis added). Based
on that conclusion, the judge ordered reinstatement and backpay absent
“any other legal impediment,” not only for those HSS employees
whose employment terminated on or about October 19 (when Reming-
ton unlawfully refused to hire the housekeeping employees when the
HSS subcontract ended), but also “to the extent that some of the [Re-
mington] employees were not hired by HSS.” Under this “chain of
causation” analysis, the judge imposes liability on Remington as to
employees HSS declined to hire for lawful reasons (e.g., failure to pass
a drug test, lack of work authorization), without any evidence that
Remington discriminated against them based on their union support.
To the extent that HSS declined to hire certain employees for reasons
unrelated to antiunion discrimination, the absence of such discrimina-
tion is a “fatal defect” in the judge’s remedy. Darlington, 380 U.S. at
276.
REMINGTON LODGING & HOSPITALITY, LLC 11
behalf of other employees.” Nonetheless, the judge
found that Loiacono’s discharge violated Section 8(a)(1)
of the Act, based on the following reasoning:
As of December 2012, the election petition was
still pending before the Board’s Regional office.
And the pie charts that were distributed to the em-
ployees were part and parcel of the Respondent’s
campaign to convince employees to vote against the
Union. In these circumstances, it seems to me that
the Respondent’s view of Loiacono’s reported ex-
travagant reaction to the pie charts could likely have
led management to view her as a potential thorn in
the side when it came to other campaign literature
that it intended to issue as an election drew nearer.
(As noted, Loiacono had told Rostek that she had
been a member of a New York State employee un-
ion.)
Even though Loiacono did not join or support the
Union or engage in concerted activity with other
employees, I cannot escape the conclusion that it is
more probable than not that the Respondent’s man-
agement viewed her as a potential obstacle in rela-
tion to their own election campaign propaganda.
Accordingly, I conclude that by discharging
Loiacono, the Respondent violated Section 8(a)(1)
of the Act.20
When determining whether Loiacono’s discharge vio-
lated Section 8(a)(1), one must first examine Section
8(a)(1) itself, which makes it unlawful for an employer to
“interfere with, restrain, or coerce” an employee “in the
exercise of the rights guaranteed in section 7” (emphasis
added). Thus, the threshold question is whether
Loiacono was exercising “rights guaranteed in section
7.”
The Board has dealt extensively with whether activi-
ties by a single employee involve “exercise of the rights
guaranteed in section 7.” In relevant part, Section 7
states:
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.

20 Emphasis added.
The Board has held that “to find an employee’s activity to
be ‘concerted,’ we shall require that it be engaged in with or
on the authority of other employees, and not solely by and
on behalf of the employee himself.”21 It has also held that a
single employee’s efforts to induce group action may consti-
tute concerted activity, but only where the conversation
“‘was engaged in with the object of initiating or inducing or
preparing for group action or . . . had some relation to group
action in the interest of employees.’”22 And even if two or
more employees engage in “concerted” activity, it is not
protected by Section 7 unless there is a “purpose” that re-
lates to “mutual aid or protection.”23
In the instant case, the judge correctly found that
Loiacono did not engage in protected concerted activity,
and this precludes a finding that Loiacono’s discharge
violated Section 8(a)(1). The record also reveals that
Remington had likewise discharged another probationary
employee for a similar performance failure, and there is
no evidence that Remington regarded Loiacono as a un-
ion supporter (she had advised General Manager Rostek
that “she was not for the Union or against it, but . . . she
would probably be a non-union employee”). Neverthe-
less, my colleagues find “the record supports an infer-
ence that the Respondent believed that Loiacono would
speak out against the Respondent’s position in the cam-
paign and would incite others to do the same.” I respect-
fully disagree.
The record reveals that Loiacono did not exercise
“rights guaranteed in section 7” and did fall short in the
performance of her duties during her probationary peri-
od. Even if her absence from the hotel lobby at a critical
time does not wholly account for her discharge, Reming-
ton at most believed Loiacono would be a difficult em-
ployee with a poor attitude—to use the judge’s phrase, a
“potential thorn in the side.” It does not violate the Act
for an employer, rightly or wrongly, to terminate an em-
ployee based on its assessment that the employee might
be undependable, unpleasant, or annoying.
The cases relied upon by my colleagues to find
Loiacono’s discharge unlawful are distinguishable from
the instant case. In Dayton Hudson Department Store
Co., 324 NLRB 33 (1997), the employer terminated an

21 Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers I) (em-
phasis added), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented Meyers
Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988).
22 Meyers II, 281 NLRB at 887 (quoting Mushroom Transportation
Co., Inc. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)).
23 Sec. 7. See generally Fresh & Easy Neighborhood Market, Inc.,
361 NLRB No. 12, slip op. at 13 (2014) (Member Miscimarra, concur-
ring in part and dissenting in part).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee because she had performed an act in the course
of her regular work duties—processing a coworker’s
transfer request—that the employer believed would insti-
gate renewed union activity. The employer admitted that
the employee “did what she was supposed to do,” but it
discharged her based on its belief that her act would “get
the union brewing again.” 324 NLRB at 34. Here,
Loiacono was not doing what she was supposed to do—
greet and assist guests in the hotel lobby—and there is no
evidence that Remington believed Loiacono had done
anything that assisted the Union. In Monarch Water Sys-
tems, Inc., 271 NLRB 558 (1984), the employer dis-
charged an employee who participated in a Department
of Labor compliance investigation because the employer
believed the employee had worked together with a for-
mer employee to instigate the investigation. In Parexel
International, LLC, 356 NLRB 516 (2011), the employer
had heard that an employee had complained about a per-
ceived pay disparity, and it met with her to determine
whether she had discussed the matter with other employ-
ees. Determining that she had not, the employer dis-
charged her, and the Board concluded that she was un-
lawfully discharged to prevent those conversations from
taking place.24 In the instant case, there is no evidence
that Remington either believed Loiacono had engaged in
protected concerted activity (as the judge found, she had
not) or feared that she would engage in such activity. At
most, Remington was concerned that Loiacono would be
difficult and hypertechnical as an individual employee.
Such a concern about a single employee’s individual
conduct is not elevated to an 8(a)(1) violation merely
because other employees were engaged in union organiz-
ing activities at the time.
Accordingly, I concur with my colleagues’ finding that
Remington violated Section 8(a)(1) by coercively inter-
rogating and threatening employees, and Section 8(a)(3)
and (1) when it terminated the employment of all HSS
housekeeping employees effective October 19, 2012.
However, I respectfully dissent from their findings that

24 I have rejected the “preemptive strike” (preemptive restraint) theo-
ry of Parexel—i.e., basing an 8(a)(1) violation finding on an employ-
er’s purported motive to prevent future concerted activity, absent any
evidence that any employee has sought to initiate, induce, or prepare
for group action—as contrary to the holdings of Meyers II and Mush-
room Transportation. See Alternative Energy Applications, Inc., 361
NLRB No. 139, slip op. at 8 (2014) (Member Miscimarra, dissenting in
part). I adhere to that view.
Remington violated Section 8(a)(3) when it subcontract-
ed the housekeeping operations to HSS and terminated
the employment of Margaret Loiacono.
Dated, Washington, D.C. February 12, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT contract out work and discharge or refuse to
hire you because of your actual or perceived membership or
activities in Local 947, United Service Workers Union, Interna-
tional Union of Journeymen and Allied Trades, or discourage
you from engaging in union or protected concerted activity.
WE WILL NOT refuse to hire you because of your union
or protected concerted activities.
WE WILL NOT coercively question you about your un-
ion or protected concerted activities.
WE WILL NOT tell you that we would more strictly en-
force workplace rules if a union is selected as your bar-
gaining representative.
WE WILL NOT threaten you with discharge or other re-
prisals if you choose to be represented by a union.
WE WILL NOT in any other manner restrain or coerce
you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer the housekeeping employees employed at
the Hyatt hotel in Hauppauge, New York, as of August
20, 2012, full reinstatement to their former jobs, or if
REMINGTON LODGING & HOSPITALITY, LLC 13
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer the housekeeping employees employed at
the Hyatt hotel in Hauppauge, New York, as of October
19, 2012, full reinstatement to their former jobs, or if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Margaret Loiacono full reinstatement to her
former job, or if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make the above-described employees whole
for any loss of earnings and other benefits resulting from
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL compensate the employees for the adverse
income tax consequences, if any, of receiving a lump-
sum backpay award, and WE WILL file a report with
the Social Security Administration allocating backpay to
the appropriate calendar quarters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and refusals to hire, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the discharges and refusals to hire will not
be used against them in any way.
REMINGTON LODGING & HOSPITALITY, LLC
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-093850 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Brent Childerhose, Esq., Ashok Bokde, Esq., and Lara Haddad,
Esq., for the General Counsel.
Karl M. Terrell, Esq., for Remington.
Jonathan J. Spitz, Esq., for HSS.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on various days from March 6 to
20, 2013. The charge was filed on November 27, 2012, and the
complaint was issued on January 15, 2013.1 In substance, the
complaint alleges as follows:
1. That in or about mid-June 2012, Remington, by Andrew
Arpino, at the time the housekeeping manager, interrogated
employees about their union activities.
2. That in August and September 2012, Remington by
Percida Rosero, a housekeeping supervisor (a) threatened em-
ployees with discharge; (b) threatened employees regarding
their immigration status; (c) interrogated employees about their
union activity; and (d) told employees that their work was be-
ing subcontracted to avoid the Union.
3. That in August and September 2012, the Respondent by
Osiris Arango, the human resources director (a) interrogated
employees about their union activities; (b) directed employees
to report union activity; (c) told employees that work was being
subcontracted to avoid the Union; (d) directed employees not to
sign union authorization cards; and (e) threatened employees
with discharge.
4. That from August 21 to October 19, 2012, Remington for
discriminatory reasons subcontracted the housekeeping work at
the Hyatt Hotel to HHS.
5. That on or about October 19, 2012, Remington, for dis-
criminatory reasons discharged about 37 housekeeping em-
ployees, some of whose names are unknown and including the
following named employee:
Maria Armay Vilma Barzallo
Andre Bonard Estela Cabrera
Maria Garcia Berty Gandados
Noris Gutierrez Francis Lopez
Efer Monge Ninfa Palacios
Roxana Pereria Ana Salgado
6. That alternatively, from about September 19, 2012, to Oc-
tober 19, 2012, Remington for discriminatory reasons refused
to hire or consider for hire, the housekeeping employees who
were directly employed by HHS and are described in the pre-
ceding paragraph.

1 At the hearing, Hospitality Staffing Solutions (HSS) offered to ful-
ly settle the case to the extent that the complaint alleged that it engaged
in or was responsible for unlawful conduct. The General Counsels
asserted that they were not alleging that HSS would be liable for any
backpay resulting from a finding of illegal discrimination and that there
were no prior instances where HSS had been found to have violated the
National Labor Relations Act (the Act). Accordingly, as HSS agreed to
fully remedy all of the allegations that were attributable to it, and as the
Charging Party also agreed to enter into the settlement, I approved the
settlement on March 19, 2013, over the objection of the General Coun-
sel.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. That on or about January 2, 2013, the Respondent for dis-
criminatory reasons discharged Margaret Loiacono.
8. That in January 2013, the Respondent distributed literature
to employees that (a) threatened employees with more onerous
working conditions; (b) threatened employees with unspecified
reprisals; and (c) threatened to withhold a benefit.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The Respondents admit and I find that they are employers
engaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is admitted and I find that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Nature of the Operations
The facility involved in this case is a hotel located in
Hauppauge, New York. Although branded as a Hyatt hotel, it
is not owned by that entity, which instead leases its brand to a
group of independent owners. For many years, the hotel utilized
the Hyatt organization to provide the actual management ser-
vices for the hotel. Hyatt in turn, subcontracted out the house-
keeping department, consisting of about 40 employees, to a
company called Hospitality Staffing Services (HSS). HSS is
based in Atlanta, Georgia, and provides staffing services specif-
ically for hotels throughout the country. At the time that it was
performing the housekeeping functions for this particular hotel,
HSS had an office in Long Island and this hotel was its only
customer on the Island.
In 2011, the owners of the hotel decided that they no longer
wished to use Hyatt to run the hotel and contracted this function
to Remington Lodging & Hospitality, LLC. This company has
its main headquarters in Dallas, Texas, and currently manages
70 hotels in the United States.
The president of Remington is Mark Sharkey. Under him is
Evan Studer who is the executive vice president of operations.
In turn, there are about 15 divisional managers who report to
Studer, including Sileshi Mengiste who is responsible for a
number of hotels including the Hyatt in Hauppauge. When
Remington, in December 2011, took over the running of the
hotel, the local general manager was Michael Lawrence. He
left in 2012 and after a short period when there was an interim
general manager; Jeff Rostek took over this position in or about
the middle to late July 2012. At one point, Mark Arpino was
the head of housekeeping, but he was moved to be the front
desk manager and his position was taken by Blanca Dunleavy
on August 1, 2012. In the housekeeping department there were
two supervisors who reported to Dunleavy and these were
Percido Rosero and Yohenna Borrero. The Respondent con-
cedes that these two individuals are supervisors as defined in
Section 2(11) of the Act. At the corporate level, Remington
employs a director of human resources who is Sharon Glees.
At the local level, the director of human resources for this par-
ticular hotel is Osiris Arango.
In December 2011, when Remington took over the manage-
ment of the hotel, it decided that it would directly employ the
hotel’s employees including the employees in the housekeeping
department. Accordingly, the arrangement with HSS was can-
celed and the housekeeping employees, including their supervi-
sors, were hired by Remington. This decision was in fact con-
sistent with Remington’s general preference which is to directly
employ hotel staff so that it can have more control over the
hotel’s operations.2
So, from the time that Remington took over the management
of the hotel and until August 20, 2012, it directly employed the
housekeeping staff and supervisors who worked under the di-
rection first of Mark Arpino and then of Blanca Dunleavy.
Before moving on, I note that hotels are generally rated in
various categories based on guest surveys that are conducted
either by the brand (e.g., Hyatt) or by an independent entity. In
this respect, customers are sent, usually by email, surveys in
which they can rate various aspects of the hotel, such as ser-
vice, cleanliness, etc. Although not every guest will respond,
sufficient guests do respond and a rolling tally is sent to each
hotel and their respective managements. For our purposes, the
main category we should be concerned with is the survey re-
sults for guest rooms. According to the Respondent’s witness-
es, a reason that the hotel’s owners decided to contract with
Remington was because the survey scores under Hyatt and HSS
were unacceptable. They also testified that after Remington
took over, the scores continued to place this hotel at or near the
bottom of all full service Hyatt hotels. It is Remington’s con-
tention that when the scores for the hotel did not improve, it
decided that the remedy should be to outsource the housekeep-
ing work to another company. And to this end, the record indi-
cates that a decision to explore the possibility of contracting out
this work was initiated sometime in mid- to late June and no
later than June 28, 2012.
B. Commencement of Union Organizing and the Decision
to Subcontract Housekeeping Operations
Jose Vega, a union agent, visited the hotel in April and while
there started to communicate with some of the housekeeping
staff about unionization. Thereafter, he made a habit of visiting
the hotel and during the course of his visits from April, he met
with an employee named Veronica Flores who became his liai-
son with the other employees. As a result, a union meeting was
planned for some time June 10, 2012. However, that meeting
was called off because, Vega was told by Flores that manage-
ment had learned of the union activity.3

2 Although there have been occasions in the past when Remington
has subcontracted various functions to other companies, there are far
fewer instances when Remington has contracted out housekeeping
functions. There are some exceptions, but by and large, except for one
past instance involving a hotel in Key West, Remington never contracts
out all of the housekeeping work. Either it will directly employ the
employees or subcontract for only a supplemental staff. In the case of
the Key West Hotel, the housekeeping work was contracted out for
only a limited period of time and was later brought back in-house.
3 I am not relying either on Vega’s testimony or the testimony of
employees that the meeting was canceled because employees believed
management knew of union activities to prove the truth of that asser-
tion.
REMINGTON LODGING & HOSPITALITY, LLC 15
Ninfa Palacios, a housekeeping employee, testified that
sometime in May 2012, she was approached by Supervisor
Percida Rosero who asked her if she was asked to participate in
a union meeting. Palacios testified that she told Rosero that she
new nothing and had not been invited to any meeting. She
states that Rosero said that there were some rumors that a meet-
ing was going on.
Veronica Flores testified that in June 2012, Andrew Arpino,
then the director of housekeeping, called her into his office and
asked if she knew anything about a union. She testified that she
said that she didn’t know anything and that he said that if she
heard anything, she should let him know. Flores states that
when she asked him what was going on, Arpino showed her a
union business card and said that another employee named
Amaya, had given it to him.4 In relation to this meeting, Flores
was not all that certain as to when it occurred but from the con-
text of her testimony it most likely occurred shortly before June
10. She also testified that no one else was present. According
to Flores, it was after this meeting that she contacted Vega and
asked that the meeting be called off.
Flores testified that in late June, she had another conversa-
tion with Arpino and that while in his office, he showed her a
picture on a computer screen and asked if the person was Jose
Vega. She testified that although it looked like Vega, it was not
him and that she told Arpino that it was not him.
Flores testified that in early July, she was approached by
Rosero who said that the Union was trying to get into the hotel
that this was impossible because it would take money away
from everyone and that a union would not work with someone
who is not documented.
Finally, Flores testified that in early August, she overheard
Rosero talking to another employee and that Rosero said that
employees would be dismissed if they talked to the Union and
that the Union did not work with people who were undocu-
mented,
The Respondent did not call Arpino or Rosero as witnesses
and they therefore did not contradict the testimony of Flores or
Palacios. Accordingly, I shall credit their testimony which
shows that by no later than June 10, 2012, management was
aware that a union agent was soliciting employees inside the
hotel.
In my opinion, the above-noted conversations constituted il-
legal interrogations under the rationale of Rossmore House, 269
NLRB 1176 (1984). I also conclude that the statements over-
heard by Flores that Rosero made in August, constituted an
impermissible threat of reprisal in violation of Section 8(a)(1)
of the Act.
Although the record is not clear as to exactly when the Re-
spondent commenced the process resulting in the subcontract-
ing of the housekeeping work, the first written communi-cation
regarding this subject is dated June 28, 2012. On this date,
Sileshi Mengiste, sent two similar email reports to Mark
Sharkey (the CEO), Evan Studer (the executive vice president
of operations), and Sharon Glees (the head of human re-

4 Vega testified that on his visits to the hotel, he would walk around
the hallways and when he spoke to an employee would hand out his
business card.
sources). The report sent at 8:39 p.m., which slightly modifies
a report sent at 3:51 p.m., states:
Dear Mark
As you aware, the hotel made the decision sometime ago to
bring the outsourced housekeeping department in house in or-
der to improve guest satisfaction and operations scores. This
approach has not delivered the expected results as our scores
are still a major problem for this hotel.
In order to improve the hotel’s financial position and flow
through, as well as to improve operational efficiencies, I rec-
ommend that we again outsource the housekeeping depart-
ment to Hospitality Staff Solutions (HSS), a reputable con-
tract labor company that the hotel has worked with on a lim-
ited basis since 2008.
Additional benefits to outsourcing the department follow:
Financial—Attached is an analysis computed with the current
contract rate of $12.60 per hour. This represents a “worst
case” scenario and I will be working on a reduced rate con-
sidering the amount of business we will be bringing to HSS.
Workers Compensation—HSS will carry all liability insur-
ance, which will reduce a significant amount of financial bur-
den and responsibility from the hotel operations.
Healthcare—Considering the Supreme Court’s ruling today
on the Affordable Healthcare Act, the hotel’s exposure to in-
crease healthcare expenditures in the future is uncertain at best
and more likely represents a significant increase financial
burden on the hotel operations.
Hiring and Recruiting—Currently, the hotel is struggling to
fill open positions in the housekeeping department. On aver-
age, it will take 30 to 45 days to hire a house person or a room
attendant. HSS has vast resource as and expertise to meet our
staffing needs.
Over time—Currently the hotel incurs overtime if business
demand increases on short notice, staff calls out sick or our
forecasting proves to be inaccurate. HSS had the resources to
readily provide the necessary staffing levels on short notice in
order to meet business demands.
On the same day at 9:02 in the evening, CEO Mark Sharkey
responded to the emails and stated:
Sileshi, I have reviewed your email and agree that it is time to
address this problem. We cannot allow service to be this low
or to continue to suffer from staffing problems. This has gone
on too long and we must make a change immediately. Reach
out to HSS and make the necessary changes tomorrow. Do
what you can to get HSS to lower their hourly rate or to tie the
rate to a level of service, etc. Ps get this done before the
weekend. Thanks.
According to Rick Holliday, his company was first contacted
by Remington on June 28. In this regard, Holliday testified that
he checked his records and confirmed that this was when
Sileshi Mengiste contacted HSS’ business development team.
Holliday testified that in late June or early July, he partici-
pated in a conference call with Mengiste, Studer, and Glees
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
who said that they needed to move in this redirection because
of low survey scores and because they were having some turn-
over issues. He states that they told him that they were having
a problem getting enough housekeeping staff. Holliday also
testified that they told him that they wanted this to happen right
away: “the next day.”
On June 30, 2012, Rick Holliday sent an email to Remington
which stated:
I apologize for not getting back to you sooner. We are work-
ing on determining the time frame to be able to re-open the
branch office back up.
Sharon, are there any issues with unions, ICE or wage and
hour at the property now?
On July 1, 2012, Evan Studer of Remington, sent a message
to Holliday which stated inter alia:
To my knowledge there are no issues with the items you not-
ed. I’m sure you’re aware that union organizing on the island
has been in play for many years and has also heated up in the
past year, something to be aware of. Our objective is to get
this department outsourced for all the reasons we reviewed
with you, such as better recruiting pool, keeping our cost at or
near to its current level and the primary reason to quickly
grow our guest satisfaction rating in the Hyatt system. Our
research has led us to believe all these items can be best
served in this market through a professional nationwide clean-
ing organization.
From July 2 to 9, Studer also communicated with David
Tucker from a company called Jani-King about a possible con-
tract. On July 2, Tucker sent an email to Studer attaching a
proposed contract. At 5:59 p.m., Studer acknowledgement re-
ceipt of the contract and in a response, with copies to Sharon
Glees and Sileshi Mengiste, he stated: “We will review tonight
and be back in the contact with you tomorrow morning. Our
intent is to still move forward with an outsourced service.”
However, in the end, Remington decided to use HSS instead of
Jani-King because the quoted price was too high and Studer
found out that what Jani-King did was to further subcontract to
yet another local company.
On July 4, Vega had a meeting with a number of Remington
employees and managed to obtain four signed authorization
cards. The evidence shows that from July 5 to 11, the Union
obtained seven other signed authorization cards.
At some point before July 12, Holliday visited the hotel and
on July 12, he submitted a contract proposal to Remington.
Between July 12 and 16, HSS and Remington by their respec-
tive agents, engaged in extensive negotiations regarding the
subcontracting of the housekeeping department. The major
issues were that HSS was insistent that the wages and compen-
sation currently paid by Remington were not high enough to
attract suitable and sufficient employee applicants. And the
other major issue was that HSS was insisting on and Remington
was resisting, a provision whereby if the contract was terminat-
ed, Remington would not solicit any employees of HSS and
would, as a remedy, pay to HSS, a substantial amount of money
in the event that Remington hired HSS employees after a con-
tract had been terminated.
On August 16, 2012, a contract was executed between Re-
mington and HSS and the start date was scheduled for August
21. In essence, the agreement called for the transfer of Re-
mington’s housekeeping employees to HSS; a new and higher
starting pay rate; a raise for already employed employees; and a
penalty clause whereby Remington would pay a half year’s
wage for any HSS housekeeping employee that Remington
hired in the event that the contract was terminated. The house-
keeping director and two housekeeping supervisors would re-
main employed by Remington and HSS agreed to hire at least
one new supervisor.5
On August 20, the employees of Remington were told that
HSS was taking over the housekeeping functions and that if
they wished to be hired by HSS, they should fill out applica-
tions. Most did so and most were hired. However, there were a
few whose information was questioned by HSS’ E-Verify sys-
tem and who did not get employed by HSS.6 Those that were
hired by HSS began on its payroll as of August 21, 2012. They
also got substantial wage increases. Those hired after August
21, were paid at a higher rate than new hires were paid by Re-
mington.
After the meeting was held on August 20, the Union filed its
first representation petition on the same date. (Case 29–RC–
087706.) This petition sought to have an election amongst the
housekeeping employees who were employed at the Hyatt ho-
tel. Presumably, this petition was received by the company on
August 21. It later was withdrawn and replaced by another
petition.
It should be noted that in addition to the sudden quest to con-
tract out the housekeeping duties, it is conceded that Reming-
ton’s cost for utilizing HSS to perform this function was higher
than Remington’s existing costs.7 I also note that there was no

5 Except for one former employee of Remington, HSS agreed to hire
all of Remington’s employees who passed a drug screen, a background
check, and the Company’s E-Verify system.
6 Without going into too much detail, employers can voluntarily en-
roll in a Federal Government system called E-Verify. Under this sys-
tem, a company can, after obtaining certain documents from a new
employee (often social security cards), utilize this computer system to
check to see, for example, if a new hire’s social security number is a
match to one on file with Social Security. If there is nonmatch, the
newly hired employee is given a fixed period of time to contact the
government agency and fix the problem. If it can’t be fixed or ex-
plained (for example a nonmatch because of a name change), then the
employee has to be fired.
7 Some of the considerations cited in favor of contracting out the
work set forth in Mengiste’s June 28 memorandum, strike me as being
somewhat bogus. For one thing, he cites the Supreme Court decision on
health care, which would not go into effect for at least a year and would
not really affect an employer that already was providing health insur-
ance to its employees. In part, Mengiste claims that by contracting out
the work, Remington would likely be able to lower costs because a
contractor might be able to lower wage rates and because various of the
existing employee costs, such as worker’s compensation insurance and
health insurance, would be carried by HSS instead of Remington. But
the people who run HSS have ample experience in hotel staffing and I
don’t see how Mengiste would be so naïve as to assume that HSS
would negotiate a contract where it would take on those costs without
setting a price to offset the costs and earn a profit. Indeed, as the nego-
tiations got underway, it became obvious that hiring HSS to do the
REMINGTON LODGING & HOSPITALITY, LLC 17
issue about the quality of the Remington housekeeping staff. It
was acknowledged by Remington that the reason why the quali-
ty scores were not good was not because the employees were
lazy or incompetent, but rather because Remington simply
could not employ enough workers to get the job done right.
Thus, Remington’s management asserts that they thought that
because HSS specialized in manpower recruitment, it would be
in a better position to get sufficient staff for this hotel. But it
seems that the problem was not so much HSS’ recruitment
skills as the amount of money that Remington was offering to
work at this hotel. Indeed, HSS after having its contract for this
hotel terminated back in December 2011, had no office in Long
Island, had no staff for Long Island, and had no contacts with
the local labor market in that area. Moreover, if HSS had not
been successful before December 2012, why would Remington
assume that HSS would be more successful now?
Remington asserts that the main reason that it decided to
contract out this work to HSS was because the customer service
scores were and remained low. However, I note that although
the Respondent put into evidence those scores over an extended
period of time, there is no evidence showing how these scores
compared to Hyatt’s scores when it along with HSS ran the
hotel and its housekeeping department before Remington took
over. Moreover, and more significantly, there was no evidence
of any communications between Remington, Hyatt, or the ho-
tel’s owners indicating that either Hyatt or the owners were
worried or had any concerns about the scores after Remington
had taken over. Indeed, there is no evidence of any communi-
cations by Remington’s management to either Hyatt or to the
hotel’s owners that Remington was concerned about the scores
or that it was even contemplating any measures to improve the
scores.
The General Counsel contends that the decision to subcon-
tract out the work of the housekeeping employees was so that
Remington could avoid being their employer and therefore
avoid having to bargain with a union. Since this is alleged to
be violative of Section 8(a)(3) of the Act, the legal standard
would be the one set forth in Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
In my opinion, the facts cited above, including the evidence
that the decision to subcontract was undertaken shortly after
management became aware of union activity at the hotel,
strongly support a primae facie showing that the decision was
motivated by antiunion considerations. Best Plumbing Supply,
Inc., 310 NLRB 143, 144 (1993); Flat Rate Moving, Ltd., 357
NLRB 1321, 1328 (2011), affd. by 2d Cir. on November 21,
2012; Evenflow Transportation, Inc., 358 NLRB 695 (2012).
As it is also my opinion that Remington has not met its burden
of proof to show that it would have taken this action notwith-
standing the employees’ union activity, I also conclude that the
Respondent has violated Section 8(a)(1) and (3) of the Act.

housekeeping work would substantially increase Remington’s costs and
not reduce them. In fact, it strikes me that the only rational way to
justify this kind of cost increase, would be because Remington could
off load not the costs, but the employees to someone else so that it
could avoid being required to bargain with a union.
Having concluded that Remington illegally made a decision
to contract out the housekeeping department to HSS, I conclude
that given the chain of causation, Remington is legally respon-
sible for what happens to those employees thereafter. Thus, the
decision to contract out the housekeeping department resulted
in the discharge of those employees from Remington’s em-
ployment. Accordingly, to the extent that some of the employ-
ees were not hired by HSS, those particular employees, absent
any other legal impediment, would be entitled to reinstatement
and backpay from August 20, 2012, to such time as they re-
ceive an unconditional offer of reinstatement. As to those for-
mer Remington employees who were hired by HSS, they also
would be entitled to reinstatement by Remington after their
discharge by HSS on or before October 19, 2012. In these
circumstances, their employment at HSS should be considered
as interim employment for purposes of calculating backpay
owed by Remington. Therefore, any Remington employees
who were hired by HSS and who had their employment termi-
nated for any reason other than gross misconduct would be
entitled to backpay starting from the date of their termination to
such time as they receive unconditional offers of reinstatement.
As noted above, HSS commenced operating at the hotel on
August 21, 2012, and hired almost all of the housekeeping em-
ployees of Remington. Nevertheless, the housekeeping direc-
tor, Bianca Dunleavy, and the two housekeeping supervisors
remained employees of Remington. Thus, although the regular
employees were on the payroll of HSS, they continued to be
supervised by Remington.
C. Continued Union Organizing Activity and the
Termination of the Contract between Remington
and HSS
By the time of the transfer, the Union had obtained a total of
25 signed authorization cards from employees. After August
21, 2012, the Union continued to solicit authorization cards
during the months of August through November and obtained
an additional 30 cards during that period of time. (Most were
obtained in August and October.) Thus, the transfer of the em-
ployees from Remington to HSS did not stop employees from
seeking representation.
On September 11, 2012, the Union filed a new petition in
Case 29–RC–089045 for a unit of about 40 housekeepers,
housemen, maintenance, and drivers. The petition lists both
Remington and HSS as the employers. This was amended on
September 21, 2012, and amended again on October 16, 2012.
The final amendment lists only Remington as the employer
(deleting HSS), and sought to have an election in a wall-to-wall
unit consisting of 120 employees.
HSS continued to perform services at the hotel until October
19, 2012. In this regard, the record shows that this was HSS’
only client in Long Island and that although it had attempted to
interest Marriott in using its services for this area, those solici-
tations were unsuccessful and occurred before HSS entered into
the contract with Remington.
The record shows that during August and September, there
were a number of written communications between Remington
and HSS whereby Remington complained about a number of
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issues including the level of staffing; the nonhiring by HSS of a
supervisor; the mispayment of wages; and the lack of a trainer.
On September 19, 2012, Holliday sent a memorandum to
Studer which stated:
Per our contract, this letter serves as 30 days notice to termi-
nate our agreement with Remington Hotels . . . effective Oc-
tober 19, 2012. As a courtesy, we waive section 9 of our ser-
vices agreement and have no objection to Remington solicit-
ing and hiring HSS employees currently employed at the
property.
Holliday not only stated that HSS was going to terminate the
contract, but that it would not enforce the penalty clause that
would otherwise require Remington to pay the equivalent of 6
month’s pay for each HSS employee that Remington decided to
reemploy at the hotel. Holliday explained that he waived sec-
tion 9 because HSS had no other locations in the area, and
therefore had nowhere to put these people anyway.
At some point before October 19, 2012, Remington went out
and recruited an entirely new housekeeping staff and trained
them at another hotel. Thus, when October 19 arrived, all of
the housekeeping employees who worked at the hotel were told
(to surprise of the HSS management), that they were being fired
and that they would not be hired back by Remington. In justifi-
cation of this action, Remington witnesses testified that alt-
hough HSS had waived the penalty clause, they couldn’t be
sure that HSS wouldn’t try to have these employees work else-
where and that Remington could not be sure if it would have an
adequate staff available when it resumed control of the house-
keeping operations. To me this is absurd. For one thing, HSS
had no other place to put these people and in my opinion, Re-
mington was aware that HSS had not been successful in solicit-
ing other business in Long Island. For another thing, it would
have been a simple matter to ask the employees, after HSS had
given its termination notice, if they wished to be reemployed by
Remington. It had a month to do so.
Based on the above, I am convinced that Remington chose
not to hire the housekeeping employees because of their con-
tinued union activities and to avoid a possible adverse conse-
quence resulting from the pending election petition. See FES, a
Division of Thermo Power, 331NLRB 9 (2001), supplemented
at 333 NLRB 66 (2011), enfd. 301 F.3d 83 (3d Cir. 2002), ex-
plicating the legal framework for deciding cases involving al-
leged discriminatory refusals to hire. I therefore conclude that
by refusing to offer these employees their jobs back, Reming-
ton violated Section 8(a)(1) and (3) of the Act.8 Also, as I have
already concluded that the prior discharge of the housekeeping
employees on August 20, was a violation of the Act, it is not
necessary for me to determine whether Remington as a single
employer with HSS, also violated that Act by discharging these
employees on October 19. As they would be entitled to rein-
statement and backpay either as a result of the illegal discharg-

8 I note among other things, that none of the witnesses called by
Remington could testify as to who actually made the decision to not
hire the housekeeping employees or when that decision was made. All
asserted that they did not make the decision but were told of it shortly
before October 19, 2012. Whoever the decisionmaker was, that person
was not called as a witness by the Respondent.
es on August 20 or the illegal refusals to hire on October 19,
the remedy would be the same.9
D. Other Alleged 8(a)(1) Violations
Apart from what has already been described, the General
Counsel presented a number of employee witnesses who testi-
fied to conversations with Osiris Arango, the hotel’s local hu-
man resource director, and with Percida Rosero. It is contend-
ed that these two persons violated Section 8(a)(1) of the Act
either by engaging in coercive interrogations or by making
threats of reprisal. As previously noted, Rosero did not testify
so the testimony about what she said, stands uncontradicted.
As to Arango, although she conceded that she did have similar
conversations with these employees, she denied those aspects
that are alleged to be unlawful. Because of the mutually cor-
roborative nature of their testimony and also based on demean-
or factors, I shall credit the General Counsel’s witnesses.
According to Maritza, on August 21, 2012, the day of the
transfer to HSS, she asked Percida Rosero what was going on
and Rosero said that this was happening because of the Union.
She also testified that Rosero stated that other things were go-
ing to happen. I construe this as a threat of unspecified repris-
als which is violative of Section 8(a)(1) of the Act.
Delia Berti Reyes Granados testified that in early August
(before the transfer of the housekeeping employees to HSS),
Osiris Arango asked her if the two people from the Union had
spoken to her. Granados states that she said no and Arango
asked what benefits the Union would give her. According to
Granados, she responded that she didn’t know. In my opinion,
this constitutes coercive interrogation and is violative of Sec-
tion 8(a)(1) of the Act.
Josefina Jurado Portillo testified that on or about August 28,
she asked Arango about her health insurance and then after they
went to the latter’s office, she was asked, “[W]hat do you know
about the Union.” In this respect, I conclude that this is unlaw-
ful interrogation within the meaning of Section 8(a)(1) of the
Act.
Noris Gutierrez’ testimony was that in late August or early
September 2012, Osiris Arango called her into her office and
asked if she knew of anyone who was talking to the Union.
When Gutierrez responded no, Arango said that the Union was
not good. In my opinion, this constitutes unlawful interrogation
in violation of Section 8(a)(1) of the Act.
Estela Cabrera testified that on or about September 5, 2012,
she had a conversation with Arango in her office and was asked
if she knew anything about the Union. According to Cabrera,
she told Arango that she didn’t know anything about the Union
because she had been on vacation and that Arango said that the
Union was not good. Cabrera states that Arango reminded her
that when the housekeepers went to work for HSS, their pay

9 Because Remington retained supervisory control over the house-
keeping employees after their transfer to HSS, I would also conclude
that Remington and HSS were joint employers of these employees
during the period from August 21 to October 19. See International
Transfer of Florida, Inc., 305 NLRB 150 (1991); Laerco Transporta-
tion, 269 NLRB 324 (1984), and Capital EMI Music, Inc., 311 NLRB
997, 1000 (1993), enfd. sub nom. Al-Wahhab, 23 F.3d 399 (4th Cir.
1994).
REMINGTON LODGING & HOSPITALITY, LLC 19
had been increased. Based on the credited testimony of Cabre-
ra, I conclude that the Respondent coercively interrogated em-
ployees in violation of Section 8(a)(1) of the Act.
Ana Salgado testified that in mid-September 2012, she was
asked by Percida Rosero if she was going to a meeting with the
Union that the women were having. Salgado responded that she
wasn’t aware of such a meeting and Rosero said that HSS had
found out that they were holding a meeting. As previously not-
ed, Rosero was not called as a witness and I therefore conclude
that these remarks constitute unlawful interrogation in violation
of Section 8(a)(1) of the Act.10
Francis Lopez testified that in late September 2012, she had
a conversation with Arango in the latter’s office in which
Arango asked if she knew what the Union was. According to
Lopez, when she said no, Arango explained that the Union was
there to protect the employees but that it wasn’t good because
the employees had to pay them a lot of money. Lopez testified
that Arango asked her what other employees were saying about
the Union and asked her if she signed a union card. According
to Lopez, Arango stated that if they found out, they would fire
everybody. (In fact, as described above, less than a month
later everybody was fired.) Based on the credited testimony of
Lopez, I conclude that the Respondent violated Section 8(a)(1)
of the Act by coercively interrogating an employee and threat-
ening to discharge employees if they joined or supported the
Union.
Reina Trejo testified that in or about the middle of Septem-
ber 2012, she had a conversation with Arango when she was
working on the sixth floor. She testified that while training a
new employee, Arango came into the room, asked the other
person to wait outside and after a brief discussion of employee
benefits, asked if she would go with the Union or stay with the
hotel. Trejo responded that if the Union gave her better bene-
fits, then she would go with the Union and if the hotel gave her
better benefits then she would go with the hotel. According to
Trejo, Arango said that the Union was two faced and that it
would take a percentage of what she earned. Although not
earth shattering, I conclude that this also constituted unlawful
interrogation in violation of Section 8(a)(1) of the Act.
In addition to the conversations that have been described
above, the General Counsel alleges that three leaflets distribut-
ed by Remington to employees in January 2013, violated the
Act. These are as follows:
Fact #2
Question:
Would the enforcement of work rules change if the Union is
voted in?
Answer: YES! The rules would be applied and enforced more
strictly. Right now, managers have a lot of flexibility and
room to be fair. We believe in “extra chances” (except for
very serious violations).
In a Union hotel, that would go away. The rules would have
to be enforced very rigidly. That’s just the way it is in ‘union’

10 This might also be construed as the Respondent giving employees
the impression of surveillance, but that was not alleged in the com-
plaint.
companies—employers are afraid of “doing favors”; afraid of
being flexible.
Why is that? Because “union” companies worry that when
they give an otherwise good employee an “extra chance”, the
union will use it against them later on — by a grievance fil-
ing—when the same violation is committed by an employee
who really does deserve to be fired.
This is a bad thing for good employees.
Fact # 5
Question:
Obviously, the Union will ask for higher wages, more benefits
and less work. The Hotel will have to agree to this . . . right?
Answer:
Let’s be realistic. Some things may go up. But, if that hap-
pens other things will go down.
Think about your “Real Wage Pie Chart.” The Pie doesn’t get
bigger just because the Union wins the election. The Hotel
can only pay what it can afford.
The Pie only gets bigger if. . . .
More guests stay her, and
Spend more money.
Good guest service grows the Pie . . . . Not the Union.
Fact # 6
Question:
What happens if no agreement is reached?
Answer:
Everything could stay the same: No increases at all! . . . It is
not unusual for unions and employers to go years without
reaching agreement.
Example: At Remington’s hotel in Alaska—The Anchorage
Sheraton—the Union has tried without success since February
2009 to get a new agreement. The employees there haven’t
had an across-the board pay increase since February 2008—
almost 5 years now!
These pieces of propaganda are of a type that is fairly typical
in union election campaigns. As to fact 5 and fact 6, I don’t
think that either constitutes a threat of reprisal or a threat that
certain benefits would be withheld if the Union were to win an
election. The statement that the hotel can only pay what it can
afford, is simply a general truism and the statement as a whole,
cannot, in my opinion, be reasonably understood by employees
that by selecting a union, they would necessarily lose some of
their existing benefits as a result of bargaining. Similarly the
questions and answers in fact 6 are opinions as to how long
bargaining could theoretically take during which, in the absence
of an interim agreement, the status quo might be maintained.11

11 I note that the reference in fact 6 to the situation at the Sheraton
Anchorage, brings to mind that on April 24, 2013, the Board issued a
Decision and Order in Remington Lodging & Hospitality, LLC, d/b/a
The Sheraton Anchorage, 359 NLRB No. 95. In that case, the Board
found that this Employer, represented by the same law firm, violated
the Act by among things; (1) changing the employees’ terms and condi-
tions of employment after contract expiration without first providing at
least 30 days’ notice to Federal Mediation & Conciliation Service; (2)
unilaterally implementing a new health benefit plan without first bar-
gaining to impasse or agreement; (3) disciplining off-duty employees
for presenting a petition to the Employer in the lobby; (4) discharging
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the other hand, it is my opinion that the statements in fact
2 do constitute a threat that if a union was selected and a con-
tract reached, the company would more strictly enforce its ex-
isting disciplinary rules. As such, I conclude that in this re-
spect, Remington violated Section 8(a)(1) of the Act. See
Olympic Supply, Inc. d/b/a Onsite News, 359 NLRB No. 99
(2013).
E. The Discharge of Margaret Loiacono
The complaint alleges that the Respondent discharged
Loiacono on January 2, 2013, because Remington believed that
she assisted the Union and engaged in concerted activities and
to discourage employees from engaging in those activities. A
problem here is that Loiacono did not join the Union or assist it
in any other way and she did not, in my opinion, engage in
what can be described as concerted activity within the meaning
of Section 7 of the Act. The issue therefore is whether the evi-
dence would support the contention that notwithstanding the
above, the Respondent discharged this employee (before her
probationary period had ended), because it believed that she
engaged in such activities. And if that is the case, then the
General Counsel would prevail.
The Respondent, on the other hand, argues that because her
job was as a lobby ambassador, she can’t do her job, if she
wasn’t in the lobby. It asserts that she was absent from the
lobby for about 10 to 15 minutes on Sunday morning, Decem-
ber 30, 2012. It contends that this is a prime checkout time for
guests and that it is important for a luxury style hotel to have
the lobby ambassador give the guests a positive feeling as their
last experience of their stay.
Loiacono was hired in September 2012, when HSS was still
operating the housekeeping department. She was hired mainly
as a lobby ambassador and she also functioned, part of the time,
as a PBX operator. As a lobby ambassador, her responsibilities
were to greet guests, be of assistance to guests, and to have a
pleasant attitude when dealing with guests. She also, from time
to time (along with other employees), drove a company van to
take guests to various locations.
In late December 2012, the Company, as a part of its pro-
spective election campaign, distributed to each employee a pie
chart setting forth each employee’s compensation and how it
was divided. Loiacono was invited into Arpino’s office and he
gave her the pie chart while saying that Remington was giving
employees a certain amount of money and that they couldn’t
guarantee anything with a union. She states that she told him
that he didn’t have to explain because she had been a member
of a New York State employee union. During this conversa-
tion, Arpino told her that her work had improved and that she
was doing a good job.12
After receiving the pie chart, Loiacono discussed it with
Yohenna Borrero, a housekeeping supervisor, and said that the
chart was incorrect as to Loiacono because it set forth an

off-duty employees for distributing handbills under the hotel’s porte
cochere; (5) maintaining and/or enforcing certain employee handbook
rules; (6) soliciting employees to sign a decertification petition; and (7)
withdrawing recognition from the union.
12 At an earlier point, she had been spoken to about her attitude and
she had pledged to correct that aspect of her job.
amount for uniforms and she didn’t have a uniform. She asked
Borrero if her chart was also incorrect and suggested that she
check it over. Borrero said that she would. This probably oc-
curred on December 30, 2012, and is likely the incident where
the Respondent asserts that Loiacono was away from the lobby
for 10 to 15 minutes.
On December 30, Loiacono asked to speak to Rostek and
they went into his office. Loiacono said that there was a mis-
take in her pie chart because there was a section for a uniform
allowance and she didn’t have a uniform and didn’t get a uni-
form allowance. She also pointed out that some of the pie
charts for other employees might also have mistakes because
although hers had a slice for health insurance, some employees
did not take health insurance. She asked Rostek who made the
pie charts and he said Osiris Arango. She suggested that they
correct the charts and he said he would look into it and talk to
Osiris.
Loiacono testified that later on December 30, Rostek held a
conversation with her and two other employees in which he
stated that it would take a long time to get a union contract and
that there was no guarantees that we would get a raise. She also
testified that Rostek said that even if they got a “contract and
stuff,” Remington wouldn’t necessarily have to honor it. Ac-
cording to Loiacono, she responded that she was not for the
Union or against it, but that she would probably be a nonunion
employee.
Rostek’s version of the earlier conversation is not much dif-
ferent from Loiacono’s. He states that she brought up the mis-
take in her pie chart and that he thanked her for pointing it out.
According to Rostek, he felt that she was simply trying to be
helpful.
I note that Loiacono’s complaint about the pie chart, as de-
scribed by her own testimony, was not really a complaint about
her actual compensation. It was simply a complaint about how
her compensation was incorrectly represented on her pie chart.
Nor was she speaking on behalf of other employees about their
actual wages and conditions of employment. She was pointing
out to Supervisor Borrero and General Manager Rostek a mis-
take in a pie chart that represented her own compensation and
merely suggested (without talking to any other employees), that
the Company may have made a mistake in the pie charts that it
distributed to other employees.
In an email dated Monday, December 31, 2012, Arpino re-
layed to Rostek a statement from Yohenna Borrero regarding
the conversation she had with Loiacono about the pie chart.
Arpino states that he was told by Borrero that Loiacono assert-
ed that since she didn’t have a uniform, she should get paid the
amount of money that was put in the chart for cleaning uni-
forms. His email goes on to state:
Marge then explained that she was calculating from her house
all of the money since she started working here that she
should get for the dry cleaning and it was over $200. Marge
was then waiting for today (Monday) to speak with Jeff and
see his face when she asked for that money. Marge then said
that she is not stupid and that is not legal, putting things that
they are not getting and lying to the people and that was
against the law. And that she was waiting for Ken to talk to
REMINGTON LODGING & HOSPITALITY, LLC 21
Jeff about it. Then she asked me if I send my clothes to the
dry cleaner and I said “No”. Then she said “then see they
should pay you for that”.
This email finally relates that Loiacono told Yohenna
Borrero that she was going to bring the hotel to court after Jan-
uary 14, regarding her pay rate.
Loiacono was discharged on January 2, 2013, shortly before
her probationary period was about to end. The termination
report written by Arpino states:
On 12/30/12 at approximately 11:30 AM, Marge was outside
of her work area ignoring her duties as Lobby Ambassador as
she was not engaged in work activities while in the House-
keeping office with Yohenna. Additionally, Marge has been
spoken to in the past regarding displaying an attitude that does
not meet the hotel’s standards for hospitality and attitude.
. . . .
Our service scores continue to be some of the worst in Hyatt
and Remington. During the time Marge was not performing
Lobby Ambassador duties, numerous guests would have
passed the lobby and not been offered assistance and service
which is a Remington standard for Lobby Ambassadors and a
key component of our service culture. On or about December
11th, Marge approached the General Manager to complain
about the Van light being on and how this had been unre-
paired for approximately four months; Jeff asked her if she
had addressed this with the FO manager, Marge said no but
that everyone was aware of this issue; Jeff asked Marge how
did she know about this issue if she had joined us about three
months prior, Marge responded that everyone knew about it
but it was not repaired. A few weeks ago I, Andrew Arpino
and Jeff Rostek, General manager had a conversation with
Marge in regards to her responsibilities and attitude and how
important her disposition was to impact the overall service
scores, at this time no improvement has been observed.
What is peculiar here is that Arpino’s email message regard-
ing Lioacono’s conversation with Yohenna Borrero is different
from how Loiacono described this conversation in her own
testimony. (Borrero did not testify.) And unlike Loiacono’s
rather bland description, the version reported to Rostek on De-
cember 31 is far more emphatic and colorful; even going so far
as to relate a threat by Loiacono to sue the Company.
As of December 2012, the election petition was still pending
before the Board’s Regional Office. And the pie charts that
were distributed to the employees were part and parcel of the
Respondent’s campaign to convince employees to vote against
the Union. In these circumstances, it seems to me that the Re-
spondent’s view of Loiacono’s reported extravagant reaction to
the pie charts could likely have led management to view her as
a potential thorn in the side when it came to other campaign
literature that it intended to issue as an election drew nearer.
(As noted, Loiacono had told Rostek that she had been a mem-
ber or a New York State employee union.)
Even though Loiacono did not join or support the Union or
engage in concerted activity with other employees, I cannot
escape the conclusion that it is more probable than not, that the
Respondent’s management viewed her as a potential obstacle in
relation to their own election campaign propaganda. Accord-
ingly, I conclude that by discharging Loiacono, the Respondent
violated Section 8(a)(1) of the Act.
On these findings of fact and on the entire record, I issue the
following conclusions and recommended13
CONCLUSIONS OF LAW
1. By contracting out the work of the housekeeping depart-
ment and thereby discharging the employees in that department
on August 20, 2012, because of their membership in or activi-
ties on behalf of Local 947, United Service Workers Union,
International Union of Journeymen and Allied Trades, or be-
cause of their protected concerted activities, Remington violat-
ed Section 8(a)(1) and (3) of the Act.
2. By refusing to offer employment to the employees of HSS
who were employed in the housekeeping department on Octo-
ber 19, 2012, because of their union or protected concerted
activities, Remington has violated Section 8(a)(1) and (3) of the
Act.
3. By discharging Margaret Loiacono because it believed
that she would impede the Respondent’s electioneering cam-
paign, the Respondent violated Section 8(a)(1) of the Act.
4. By interrogating employees about their activities in rela-
tion to the Union, the Respondent has violated Section 8(a)(1)
of the Act.
5. By notifying employees that it would more strictly enforce
workplace rules if the Union was selected as their bargaining
representative, the Respondent violated Section 8(a)(1) of the
Act.
6. By threatening employees with discharge and other repris-
als if they joined or selected the Union, the Respondent violated
Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged its
housekeeping employees on August 20, 2012, and having ille-
gally refused to hire the housekeeping employees working at
the Hyatt hotel in Hauppauge, Long Island, on October 19,
2012, it must offer them reinstatement and make them whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010), enfd.
denied on other grounds sub. nom. Jackson Hospital Corp. v.
NLRB, 647 F.3d 1137 (D.C. Cir. 2011). The Respondent shall
also be required to expunge from its files any and all references
to the unlawful discharges and to notify the employees in writ-
ing that this has been done and that the unlawful discharges will

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not be used against them in any way. The Respondent shall file
a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. The Respondent
shall also compensate employees for the adverse tax conse-
quences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year. Latino Express,
Inc., 359 NLRB No. 44 (2012).
Finally, because of the extensive nature of the unfair labor
practices found to have been committed herein and because of
the findings in the previously cited case involving the same
employer, it is recommended that a broad order be issued.
ORDER
The Respondent, Remington Lodging & Hospitality, LLC.,
Hauppauge, New York, its officers, agents, and assigns, shall
1. Cease and desist from
(a) Contracting out work and/or discharging employees be-
cause of its employees’ actual or perceived membership or
activities on behalf of Local 947, United Service Workers Un-
ion, International Union of Journeymen and Allied Trades, or
because of any other protected concerted activities for mutual
aid and protection.
(b) Refusing to offer employment to individuals because of
their union or protected concerted activities.
(c) Interrogating employees about their union or protected
concerted activities.
(d) Telling employees that it would more strictly enforce
workplace rules if a Union is selected as their bargaining repre-
sentative.
(e) Threatening employees with discharge or other reprisals,
if the employees choose to be represented by a union.
(f) In any other manner interfering with, restraining, or co-
ercing employees in the rights guaranteed to them by Section 7
of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer the
housekeeping employees employed at the Hyatt hotel in
Hauppauge, New York, as of August 20, 2012, full reinstate-
ment to their former jobs, or if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer em-
ployment to the housekeeping employees employed at the Hy-
att hotel in Hauppauge, New York, as of October 19, 2012, or if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.14

14 The fact that Remington hired other employees before and after
October 19, 2012, for the housekeeping department at the hotel should
not be construed as meaning that those jobs no longer exist for purposes
of this Order. The Respondent has the choice of replacing those em-
ployees with the discriminated employees or retaining the services of
both sets of people.
(c) Within 14 days from the date of this Order, offer Marga-
ret Loiacono full reinstatement to her former job, or if that job
no longer exist, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(d) Make the above-described employees whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the remedy
section of this decision
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful actions against those
employees who have been found to have been illegally dis-
charged, and within 3 days thereafter, notify them in writing,
that this has been done and that the discharges will not be used
against them in any way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at the
Hyatt Hotel in Hauppauge New York, copies of the attached
notice marked “Appendix”15 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 20, 2012.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 15, 2013

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”
REMINGTON LODGING & HOSPITALITY, LLC 23
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT discharge or refuse to hire employees because
of their membership or activities in Local 947, United Service
Workers Union, International Union of Journeymen and Allied
Trades, or to discourage employees from engaging in union or
protected concerted activity.
WE WILL NOT refuse to hire employees because of their union
or protected concerted activities.
WE WILL NOT interrogate employees about their union or pro-
tected concerted activities.
WE WILL NOT tell employees that we would more strictly en-
force workplace rules if a union is selected as their bargaining
representative.
WE WILL NOT threaten employees with discharge or other re-
prisals, if they choose to be represented by a union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the rights guaranteed to them by Section 7
of the Act.
WE WILL offer the housekeeping employees employed at the
Hyatt hotel in Hauppauge, New York, as of August 20, 2012,
full reinstatement to their former jobs, or if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL offer the housekeeping employees employed at the
Hyatt Hotel in Hauppauge, New York, as of October 19, 2012,
employment to housekeeping jobs or if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
WE WILL offer Margaret Loiacono full reinstatement to her
former job, or if that job no longer exist, to a substantially
equivalent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make the above described employees whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them.
WE WILL remove from our files any reference to the unlawful
discharges and notify those employees, in writing, that this has
been done and that those actions will not be used against them
in any way.
REMINGTON LODGING & HOSPITALITY, LLC