Remington Lodging & Hospitality LLC d/b/a The Sheraton Anchorage

National Labor Relations Board - Board Decisions

Apr 24, 2013

359 N.L.R.B. 803 (N.L.R.B. 2013)

SHERATON ANCHORAGE 803

359 NLRB No. 95

Remington Lodging & Hospitality, LLC, d/b/a The
Sheraton Anchorage and UNITE HERE! Local
878, AFL–CIO. Cases 19–CA–032148, 19–CA–
032188, 19–CA–032222, 19–CA–032238, 19–CA–
032301, 19–CA–032334, 19–CA–032337, 19–CA–
032349, 19–CA–032367, 19–CA–032414, 19–CA–
032420, 19–CA–032438, 19–CA–032487, 19–CA–
032598, 19–CA–032600, and 19–CA–032609
April 24, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On August 25, 2011, Administrative Law Judge Greg-
ory Z. Meyerson issued the attached decision.
1
The Re-
spondent filed exceptions and a supporting brief, the Act-
ing General Counsel filed an answering brief, and the
Respondent filed a reply brief. The Acting General
Counsel filed cross-exceptions and a supporting brief, the
Respondent filed an answering brief, and the Acting
General Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
2

cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,
3
and conclusions only to the

1 On February 2, 2012, after the judge issued his decision, the Unit-
ed States District Court for the District of Alaska issued a temporary
injunction under Sec. 10(j) of the Act, ordering the Respondent to rec-
ognize and bargain with the Union; resume contract negotiations, and
honor all tentative agreements reached by the parties; at the Union’s
request, rescind the unilateral changes made in its employees’ terms
and conditions of employment; and post the order and read it aloud to
employees. Ahearn v. Remington Lodging & Hospitality, 842 F. Supp.
2d 1186 (D. Alaska 2012).
2 No exceptions or cross-exceptions were filed to the judge’s find-
ings that the Respondent violated Sec. 8(a)(1) by (1) confiscating union
buttons from an employee in December 2009, and (2) denigrating the
Union in March 2010 by informing employees that it would unilaterally
implement a new health plan. Similarly, no exceptions or cross-
exceptions were filed to the judge’s dismissals of allegations that the
Respondent violated the Act by (1) engaging in surface bargaining, (2)
unilaterally upgrading its surveillance cameras, (3) unilaterally refusing
to honor its employees’ dues-checkoff authorizations, and (4) stating to
employees that joining the Union would be futile.
The Acting General Counsel moved to strike the Respondent’s ex-
ceptions and brief, asserting that they lack sufficient citations to the
record and are therefore inadequate under Sec. 102.46(b)(1) of the
Board’s Rules & Regulations. We deny the motion. The Respondent
has “sufficiently identif[ied] the portions of the judge’s decision the
Respondent claims are erroneous.” Ybarra Construction Co., 343
NLRB 35, 35 fn. 1 (2004).
3 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
extent consistent with this Decision and Order, to amend
his remedy, and to adopt his recommended Order as
modified and set forth in full below.
4

The Respondent operates a hotel in Anchorage, Alas-
ka. The Union represents a bargaining unit comprising
employees in about 40 job classifications. In late Octo-
ber 2008, the parties began bargaining to replace a col-
lective-bargaining agreement set to expire on February
28, 2009. The consolidated complaint alleges that the
Respondent committed a host of violations of Section
8(a)(1), (3), and (5) of the Act. The judge found merit in
most of the complaint’s allegations but dismissed others.
Except as discussed below, we affirm the judge’s find-
ings for the reasons he stated.
1. The October 2009 changes to terms and conditions
of employment
We adopt the judge’s finding that the Respondent vio-
lated its duty to bargain in good faith when, in October
2009, it unilaterally implemented certain changes to unit
employees’ terms and conditions of employment. Under
Section 8(d)(3) of the Act, “no party to [a collective-
bargaining agreement] shall terminate or modify such
contract, unless the party desiring such termination or
modification” first provides at least 30 days’ notice to the
Federal Mediation & Conciliation Service (FMCS) re-
garding the parties’ labor dispute (emphasis added).
Consistent with that statutory language, the Board places
the burden of notifying the FMCS on the party initiating
contract modification or termination. Mar-Len Cabinets,
Inc., 243 NLRB 523 (1979), enf. denied in relevant part
659 F.2d 995 (9th Cir. 1981), on remand 262 NLRB
1398 (1982). Here, the Respondent initiated the modifi-
cation of the contract but failed to notify the FMCS of

(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 We will modify the judge’s recommended Order to conform to the
violations found and to our standard remedial language. Additionally,
in accordance with our recent decision in Latino Express, Inc., 359
NLRB No. 44 (2012), we will order the Respondent to compensate
employees for the adverse tax consequences, if any, of receiving a
lump-sum backpay award and to file a report with the Social Security
Administration allocating the backpay award to the appropriate calen-
dar quarters for each employee. We will also substitute a new notice to
conform to the Order as modified.
The Respondent excepts to the judge’s finding that it unlawfully
withdrew recognition from the Union in violation of Sec. 8(a)(5) and
(1), but it does not argue that the judge’s recommended affirmative
bargaining order is improper even assuming the Board affirms the
judge’s 8(a)(5) finding in this regard. We therefore find it unnecessary
to provide a specific justification for that remedy. SKC Electric, Inc.,
350 NLRB 857, 862 fn. 15 (2007); Heritage Container, Inc., 334
NLRB 455, 455 fn. 4 (2001). See also Scepter v. NLRB, 280 F.3d 1053,
1057 (D.C. Cir. 2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
the parties’ labor dispute before making the changes.
Accordingly, we find that those changes were unlawful.
5

2. The discipline of nine employees who presented a
boycott petition
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by disciplining
nine off-duty employees for peacefully presenting a boy-
cott petition to General Manager Dennis Artiles in the
hotel lobby. In doing so, we agree with the Acting Gen-
eral Counsel that the Respondent failed to adequately
except to the judge’s finding. Under Section
102.46(b)(1) of the Board’s Rules & Regulations,
“[e]ach exception (i) shall set forth specifically the ques-
tions of procedure, fact, law, or policy to which excep-
tion is taken . . . .” The Respondent’s exceptions and
brief in support contain 11 numbered exceptions. None
challenges the judge’s finding that the Respondent un-
lawfully disciplined the nine employees. The Respond-
ent does briefly allude to the discipline when excepting
to the judge’s separate and distinct finding that the decer-
tification petition was tainted by the Respondent’s unfair
labor practices. The Respondent, however, fails there to
offer a sufficiently specific argument for overturning the
judge’s finding that the discipline constituted an unfair
labor practice. Accordingly, we adopt the judge’s find-
ing on procedural grounds. See Holsum de Puerto Rico,
Inc., 344 NLRB 694, 694 fn. 1 (2005) (excepting party
must specify on what grounds the judge’s findings

5 The Respondent cites NLRB v. Mar-Len Cabinets, Inc., 659 F.2d
995 (9th Cir. 1981), for the proposition that the notice requirement of
Sec. 8(d)(3) is satisfied if either party timely notifies the FMCS of the
labor dispute. In the present case, the Union filed an F-7 Notice to
Mediation Agencies with the FMCS, but the record does not indicate
the date of the filing. Thus, even under the Ninth Circuit’s view, we
would adopt the judge’s finding of a violation. The Respondent failed
to prove that the Union filed its notice at least 30 days before the Re-
spondent implemented its October 2009 changes. The Respondent
claims that the judge erroneously precluded it from developing the
record on this point when he granted the FMCS’s petition to revoke a
subpoena duces tecum served on it for “telephone records of any tele-
phone used by the FMCS” showing communications between the
FMCS and the Union between August 2009 and July 2010. For two
independent reasons, we find that the judge did not abuse his discretion
in revoking the subpoena. First, 29 CFR §1401.2 prohibits the FMCS
from responding to a subpoena where, as here, the Director of the
FMCS has not given his approval. Second, the bare telephone records
have little, if any, tendency to support a finding that the Union filed an
F-7 Notice with the FMCS regarding this particular labor dispute 30
days or more before the relevant changes. We also note that “[a]ny
member of the public may make a request in writing under the Freedom
of Information Act for a copy of the notice filed with FMCS, thus,
providing the parties and the interested public with a uniform means to
ascertain whether and when notice was given to FMCS.” See
http://www.fmcs.gov/internet/itemDetail.asp?categoryID=127&itemID
=19661 (last visited on April 12, 2013). Under these circumstances, we
do not find that the judge erred in revoking the subpoena.
should be overturned), enfd. 456 F.3d 265 (1st Cir.
2006).
6

3. The Respondent’s handbook rules
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) by maintaining or unlawfully en-
forcing eight rules in its employee handbook. Under
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646
(2004), a rule is unlawful if it explicitly restricts Section
7 activity or if there is a showing that (1) employees
would reasonably construe the language to prohibit Sec-
tion 7 activity; (2) the rule was promulgated in response
to union activity; or (3) the rule has been applied to re-
strict the exercise of Section 7 rights.
We rely solely on the third prong of Lutheran Heritage
Village in adopting the judge’s finding that the Respond-
ent maintained the following unlawful rules:

 The rule confining employees to the area of their
job assignment and work duties and barring them
from “other parts of the hotel, parking lots, or out-
side facilities without the permission of the imme-
diate Department Head”;
 The rule prohibiting distribution of literature in
guest areas or work areas, solicitation during
working time, or solicitation of guests at any time
for any purpose;

6 Even had the Respondent filed a proper exception and supporting
argument, we would adopt the judge’s finding. The nine employees
were engaged in union and other protected concerted activity when they
peacefully presented the boycott petition to Artiles. In the disciplinary
notices issued to the employees, the Respondent cited four handbook
rules the employees allegedly violated when presenting their boycott
petition. None of those rules supports its claim. As explained in fur-
ther detail below, the Respondent’s rule against employees accessing
the hotel while off duty without prior management approval is unlaw-
fully overbroad because it gives the Respondent unfettered discretion to
grant or deny off-duty employees access for any reason it chooses,
including to prevent employees from engaging in Sec. 7 activity. See
Saint John’s Health Center, 357 NLRB 2078, 2080–2082 (2011). As
for the rule against roaming outside of one’s assigned work area, it does
not apply to off-duty employees by the Respondent’s own account.
Moreover, that rule and the remaining two rules, barring a conflict of
interest with the hotel and against engaging in indecent or publicly
embarrassing behavior, may not be invoked to discipline employees for
peacefully acting in concert for mutual aid or protection. See NLRB v.
Washington Aluminum Co., 370 U.S. 9, 16–17 (1962) (rejecting em-
ployer’s argument that an established plant rule against leaving work
without management permission privileged employer to discharge
employees for protected strike activity). As the judge correctly found,
the nine employees did not lose the Act’s protection by engaging in any
misconduct when presenting the boycott petition to Artiles. See Postal
Service, 251 NLRB 252, 252 (1980) (allegedly insubordinate behavior
during the course of protected activity does not cost employees the
Act’s protection unless “opprobrious” or “extreme”), enfd. 652 F.2d
409 (5th Cir. 1981). Accordingly, there is no merit to any argument
that the four rules somehow permitted the Respondent to discipline the
employees for presenting the boycott petition.
SHERATON ANCHORAGE 805
 The rule against having a conflict of interest with
the hotel;
 The rule against behavior that violates common
decency or morality or publicly embarrasses the
hotel; and
 The rule against insubordination or failure to carry
out a job assignment.

The Respondent cited those rules when it unlawfully
disciplined the nine employees who presented the boy-
cott petition to General Manager Artiles or when it later
unlawfully discharged four of those same employees for
distributing leaflets on hotel property. Under these cir-
cumstances, continued maintenance of those rules rea-
sonably tends to chill further protected activity. See Al-
bertson’s, Inc., 351 NLRB 254, 258–259 (2007) (holding
that the meaning of an otherwise unoffending confidenti-
ality rule was informed by the employer’s application of
it to Sec. 7 activity). We find it unnecessary to decide
whether any of those rules is invalid on its face because
so finding would not affect the remedy.
7

7 Chairman Pearce would find that the Respondent’s rules confining
employees to their work area, restricting distribution and solicitation,
and prohibiting employees from publicly embarrassing the Respondent
are overbroad and thus unlawful, even absent enforcement. The rule
confining employees to the area of their job assignment and work du-
ties and barring them from “other parts of the hotel, parking lots, or
outside facilities without the permission of the immediate Department
Head” would reasonably be understood by employees as prohibiting
activity protected under Sec. 7 of the Act without prior management
approval at times when they are properly on the Respondent’s property,
but off the clock, such as during authorized breaks and meal times.
Marriott International, Inc., 359 NLRB 144. 147 (2012) (rule restrict-
ing access to interior and exterior areas of hotel “unless on a specified
work assignment” or with the permission of management overbroad);
Pacific Beach Hotel, 356 NLRB 1397, 1424 (2011) (rule prohibiting
“straying into areas not designated as work areas, or where your duties
do not take you” overbroad), enfd. 693 F.3d 1051 (9th Cir. 2012).
Moreover, the rule is not limited to working hours and would reasona-
bly be understood by employees to apply when they are off duty, such
as before and after work. The rule is thus invalid for the same reasons
as the Respondent’s off-duty access restriction, discussed below. That
is, it does not restrict access solely to the interior of the facility and it
does not apply to access for all purposes, but rather leaves management
with unfettered discretion to grant or deny access for any reason it
chooses. Tri-County Medical Center, 222 NLRB 1089, 1089 (1976).
Chairman Pearce would find the rule prohibiting “distribution of any
literature, pamphlets, or other material in a guest or work area” and
“solicitation of guests by associates at anytime for any purpose” to be
overbroad for two reasons. First, it prohibits distribution in nonselling
areas open to guests and the public, such as restaurants, bars, sidewalks,
parking lots, and hallways. Dunes Hotel, 284 NLRB 871, 878 (1987).
Second, it “trenches upon the right of employees under Sec[.] 7 to enlist
the support of an employer’s clients or customers regarding complaints
about terms and conditions of employment.” Guardsmark, LLC, 344
NLRB 809, 809 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007); NCR Corp., 313 NLRB 574, 576 (1993) (“Employees have a
statutorily protected right to solicit sympathy, if not support, from the
general public, customers, supervisors, or members of other labor or-
Additionally, we agree with the judge that three addi-
tional rules appearing in the Respondent’s employee
handbook are facially unlawful. The Respondent main-
tains an access restriction under which each employee
“agree[s] not to return to the hotel before or after my
working hours without authorization from my manager.”
In Tri-County Medical Center, 222 NLRB 1089, 1089
(1976), the Board held that an employer’s rule barring
off-duty employee access to a facility is valid only if it
limits access solely to the interior of the facility, is clear-
ly disseminated to all employees, and applies to off-duty
access for all purposes, not just for union activity. We
find that the access rule fails the first and third prongs of
the Tri-County test. The Respondent’s rule is not limited
to the interior of the hotel and it does not restrict off-duty
access for all purposes, but rather leaves management
with unfettered discretion to grant or deny access for any
reason it chooses. See Saint John’s Health Center, supra
(“In effect, the Respondent is telling its employees, you
may not enter the premises after your shift except when
we say you can. Such a rule is not consistent with Tri-
County.”); Sodexo America LLC, 358 NLRB 667, 668
(2012).
8

We also agree with the judge’s finding that the Re-
spondent’s rule governing employee disclosure of confi-
dential information is facially overbroad. Under that
rule, “[a]ssociates are not to disclose any [ ] confidential
or proprietary information except as required solely for
the benefit of the Company in the course of performing
duties as an associate of the Company . . . . Examples of
confidential and proprietary information include . . . per-
sonnel file information . . . [and] labor relations [infor-
mation] . . . .” The Board has repeatedly held that simi-
larly worded confidentiality rules are unlawfully over-
broad because employees would reasonably believe that
they are prohibited from discussing wages or other terms
and conditions of employment with nonemployees, such

ganizations.”); Kinder-Care Learning Centers, 299 NLRB 1171, 1171–
1172 (1990). Finally, Chairman Pearce would find that the rule prohib-
iting employees from “publicly embarrass[ing] the hotel” is overbroad
because it would reasonably be construed by employees to prohibit
protected communications that are critical of the Respondent’s treat-
ment of employees. Costco Wholesale Corp., 358 NLRB 1100 (2012)
(rule prohibiting communications that “damage the Company” over-
broad).
8 In deciding this issue, we note that the Respondent erroneously re-
lies on Crowne Plaza Hotel, 352 NLRB 382 (2009), a decision that was
issued by two Board Members. See New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635 (2010); Hospital Pavia Perea, 355 NLRB 1314 fn. 2
(2010) (recognizing that two Board members “lacked authority to issue
an order”). For the same reason, we do not rely on the judge’s citation
to Crowne Plaza in affirming his finding, discussed below, that the
Respondent’s rule governing employee communications with the media
is facially overbroad.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
as union representatives—an activity protected by Sec-
tion 7 of the Act. See, e.g., Flex Frac Logistics, LLC,
358 NLRB 1131, 1131 (2012) (finding unlawful a rule
that prohibited disclosure of confidential information,
including “personnel information and documents” among
other examples); Hyundai America Shipping Agency,
Inc., 357 NLRB 860, 871 (2011) (finding unlawful a rule
that prohibited “[a]ny unauthorized disclosure from an
employee’s personnel file”). Applying that reasoning,
we find the Respondent’s confidentiality rule unlawful.
Additionally, we adopt the judge’s finding that the Re-
spondent’s rule governing employee communications
with the media is facially overbroad. Under that rule,
employees must “agree not to give any information to the
news media regarding the Hotel, its guests, or associates
[i.e., employees], without prior authorization from the
General Manager and to direct such inquiries to his atten-
tion.” Employees enjoy a Section 7 right to publicize a
labor dispute, which includes communicating terms and
conditions of employment to the media for dissemination
to the public at large. The Respondent’s rule, which bars
employees from communicating “any information” re-
garding themselves to the media, plainly restrains such
protected activity. See Double Eagle Hotel & Casino,
341 NLRB 112, 114 (2004) (finding unlawful a “press
relations” rule prohibiting disclosure of “any confidential
or sensitive information concerning the Company or any
of its employees to any nonemployee without approval
from [management]”), enfd. 414 F.3d 1249 (10th Cir.
2005), cert. denied 546 U.S. 1170 (2006).
4. Withdrawal of recognition
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by withdrawing
recognition from the Union. In doing so, we rely on SFO
Good-Nite Inn, LLC, 357 NLRB 79, 79 (2011), enfd. 700
F.3d 1 (D.C. Cir. 2012). As explained in that decision,
the Board conclusively presumes “that an employer’s
commission of unfair labor practices assisting, support-
ing, encouraging, or otherwise directly advancing an
employee decertification effort taints a resulting peti-
tion.” Id., slip op. at 3. Here, the Respondent unlawfully
assisted the decertification campaign when its supervi-
sors successfully solicited the signatures of employees
Dexter Wray, Jose Lantigua, and Esusebio Bristol on a
decertification petition. Additionally, Chief Engineer Ed
Emmsley, a supervisor, unlawfully threatened Wray with
an increased likelihood of discharge if he did not sign the
petition and promised him beneficial treatment if he did
sign. Under SFO Good-Nite Inn, this unlawful interfer-
ence gives rise to an irrebuttable presumption that the
petition does not reflect the uncoerced sentiment of a
majority of unit employees. Consequently, the Respond-
ent is unable to rely on the tainted petition, and its with-
drawal of recognition was unlawful.
5. Unilateral implementation of a guest satisfaction
incentive plan
Contrary to the judge, we find that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
implementing an incentive plan for its housekeepers. On
March 18, 2010, the Respondent posted a memo from
General Manager Artiles to the housekeeping employees
announcing and detailing a new incentive plan. The Re-
spondent did not notify or bargain with the Union before
doing so. The March 18 memo, which was posted on the
door of each floor’s supply closet, stated in part:

In an ongoing effort to drive our Guest Satisfac-
tion Scores up, I am putting a new incentive into
place. If we as a hotel, receive a 9.0 or better on
Cleanliness of Hotel AND Cleanliness of Room
and Bath for the month then I will minus a room
for ALL Housekeepers for the following month.

The memo further stated that each housekeeper would
receive a $25 gift card if the hotel reached its goal of 9.0
or better, and an individual housekeeper would receive a
$25 gift card if her name was mentioned positively in an
online survey. Shortly after the memo was posted, the
Respondent’s director of operations, Eduardo Canes,
explained the new plan to groups of employees.
Around this time, several housekeepers received incen-
tives, but those incentives did not correspond to the terms
of the newly announced plan. Specifically, two house-
keepers had their room quotas reduced by one room for 1
day because guests had mentioned them positively on
guest comment cards.
The judge dismissed this allegation, reasoning that the
Respondent’s unilateral action here was de minimis. He
based that conclusion on his subsidiary findings that
“[t]he plan was never fully implemented, and apparently
was in effect for only 24 hours, and at most it benefited
two housekeepers for one day only.” However, as the
Acting General Counsel points out, there is no evidence
to support the judge’s finding that the incentive plan was
rescinded 24 hours after being rolled out to employees on
March 18. In fact, there is no evidence that the Re-
spondent ever informed employees that the incentive
plan had been rescinded. As far as the record reveals, the
housekeepers labored for a month or more under the im-
pression that stepping up their work efforts would result
in tangible employment benefits. On this record, we
cannot excuse the Respondent’s unilateral conduct as de
minimis.
SHERATON ANCHORAGE 807
6. Unilateral subcontracting of the bellmen’s
driving duties
We adopt the judge’s dismissal of the allegation that
the Respondent violated Section 8(a)(5) by unilaterally
subcontracting the bellmen’s driving duties. In doing so,
we note the limited nature of the Acting General Coun-
sel’s exception. The Acting General Counsel does not
challenge the judge’s finding that the collective-
bargaining agreement’s subcontracting clause “clear[ly]
and unambiguous[ly]” eliminates notice and bargaining
obligations when subcontracting is not reasonably ex-
pected to result in the layoff of unit employees. Rather,
in a targeted exception, the Acting General Counsel ar-
gues that the Respondent failed “to prove the explicit
legal predicate required by that contractual provision.”
Specifically, he contends that the record fails to establish
that, when the Respondent decided to subcontract the
driving duties, it did not reasonably expect any bellmen
would be displaced. We disagree. Based on evidence
that no bellman was in fact laid off as a result of the sub-
contracting, we infer that the Respondent reasonably
expected to retain all of its bellmen when making its sub-
contracting decision. Consequently, the Union clearly
and unmistakably waived its right to bargain over the
subcontracting of driving duties under these particular
circumstances. In acting unilaterally in this regard, the
Respondent acted lawfully.
AMENDED REMEDY
We adopt the administrative law judge’s remedy with
the following modifications.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing a
guest satisfaction incentive plan, we shall order the Re-
spondent to cease and desist from unilaterally changing
unit employees’ terms and conditions of employment
and, upon request by the Union, to rescind the plan and
restore the status quo ante.
Further, we amend the judge’s remedy for the Re-
spondent’s unlawful failure to provide at least 30 days’
notice to the FMCS before making unilateral changes to
terms and conditions of employment in October 2009.
After making those changes, the Respondent belatedly
filed notice with the FMCS on February 3, 2010. Con-
sistent with Mar-Len Cabinets, 243 NLRB at 538–539,
we shall toll the Respondent’s backpay liability for this
violation as of March 5, 2010, i.e., 30 days after the Re-
spondent filed its late notice. We shall delete the portion
of the recommended Order that would have required the
Respondent to rescind those changes and restore the sta-
tus quo ante. Id.
9

Finally, we correct the judge’s inadvertent omission
from the Order of a paragraph reflecting his recommen-
dation that a high-ranking management official or, at the
Respondent’s option, a Board agent in the presence of
such an official, read aloud the notice to employees in
both English and Spanish. In his decision, the judge
found that such a remedy was warranted by the Re-
spondent’s numerous, severe, and widespread unfair la-
bor practices. No party has excepted to the judge’s rec-
ommendation, and we agree with the judge that such a
remedy is warranted.
ORDER
10

The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Remington Lodging & Hospitality, LLC,
d/b/a The Sheraton Anchorage, Anchorage, Alaska, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(b) Withdrawing recognition from the Union and fail-
ing and refusing to bargain with the Union as the exclu-
sive collective-bargaining representative of unit employ-
ees.
(c) Unilaterally changing the terms and conditions of
employment of its unit employees.
(d) Refusing to bargain collectively with the Union by
unilaterally implementing collective-bargaining pro-
posals covering terms and conditions of employment of
unit employees without fully complying with the re-
quirements of Section 8(d)(3) of the Act at a time when
the Union retains the right to be recognized as the exclu-

9 Chairman Pearce would give the parties an opportunity at the
compliance stage to show that the lawful impasse would have been
broken prior to the expiration of the Respondent’s belated 30-day no-
tice.
10 Regarding the rule violations, we shall modify the judge’s rec-
ommended Order to conform with Guardsmark, 344 NLRB at 811–
812. Pursuant to that decision, the Respondent may comply with the
Order by rescinding the unlawful rules and republishing its employee
handbook without them. We recognize, however, that republishing the
handbook could entail significant costs. Accordingly, the Respondent
may supply the employees either with handbook inserts stating that the
unlawful rules have been rescinded, or with new and lawfully worded
rules on adhesive backing that will cover the old and unlawfully broad
rules until it republishes the handbook without the unlawful provisions.
Thereafter, any copies of the handbook that are printed with the unlaw-
ful rules must include the new inserts before being distributed to em-
ployees. Id. at 812 fn. 8.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
sive collective-bargaining representative of the unit em-
ployees.
(e) Issuing disciplinary warnings to or suspending em-
ployees because of their support for and activities on
behalf of the Union or for engaging in other protected
concerted activity.
(f) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization or for engaging in other protected concerted
activity.
(g) Maintaining and/or enforcing a rule in its employee
handbook that employees “agree not to return to the hotel
before or after [their] working hours without authoriza-
tion from [their] manager.”
(h) Maintaining and/or enforcing a rule in its employee
handbook that employees “must confine their presence in
the hotel to the area of their job assignment and work
duties. It is not permissible to roam the property at will
or visit other parts of the hotel, parking lots, or outside
facilities without the permission of the immediate De-
partment Head.”
(i) Maintaining and/or enforcing a rule in its employee
handbook that “distribution of any literature, pamphlets,
or other material in a guest or work area is prohibited
. . . . Solicitation of guests by associates at anytime for
any purpose is also inappropriate.”
(j) Maintaining and/or enforcing a rule in its employee
handbook that employees are prohibited from disclosing
confidential information, including “personnel file in-
formation” and “labor relations” information, and further
providing that when disclosure is required “by judicial or
administrative process or order or by other requirements
of law,” employees must “give ten days’ written notice to
[Respondent’s] legal department prior to disclosure.”
(k) Maintaining and/or enforcing a rule in its employee
handbook that employees may not “give any information
to the news media regarding the hotel, its guests, or asso-
ciates, without authorization from the General Manager
and to direct such inquiries to his attention.”
(l) Maintaining and/or enforcing a rule in its employee
handbook that a “conflict of interest with the hotel or
company is not permitted.”
(m) Maintaining and/or enforcing a rule in its employ-
ee handbook that prohibits “behavior which violates
common decency or morality or publicly embarrasses the
hotel or company.”
(n) Maintaining and/or enforcing a rule in its employee
handbook that prohibits “insubordination or failure to
carry out a job assignment or job request of manage-
ment.”
(o) Confiscating union buttons worn or carried by em-
ployees.
(p) Soliciting or otherwise coercing employees to sign
a petition seeking to decertify the Union as the collec-
tive-bargaining representative of the unit employees.
(q) Promising employees favorable treatment if they
sign a decertification petition.
(r) Threatening to discharge employees if they refuse
to sign a decertification petition.
(s) Coercively interrogating employees regarding their
support for the Union.
(t) Denigrating the Union in the eyes of the unit em-
ployees by informing them that the Respondent intends
to unilaterally implement changes in their terms and con-
ditions of employment without the parties having first
reached a good-faith collective-bargaining impasse.
(u) Prematurely declaring an impasse in collective-
bargaining negotiations with the Union.
(v) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All Guest Service Agents, Communication Agents,
Guest Service Agent Supervisors, Bell Captains, Bell
Persons, Reservation Sales Agents, Door Per-
sons/Drivers, Room Attendants, Inspectors/Floor Su-
pervisors, Linen Room Attendants, Laundry Seam-
stresses, Maintenance employees, Porters, Storeroom
Clerks, Lead Storeroom Clerks, Receiving Clerks,
Maitre D’s, Captains, Hosts/Hostesses, Restaurant
Cashiers, Bus help, Coat Checkers, Banquet Waithelp,
Banquet Housepersons, Banquet Bartenders, Room
Service/Restaurant Waiters, Persons, Lead Stewards,
Chief Stewards, Stewards, Bartenders/Service, Bar-
tenders Tipped, Bar Backs, Cocktail Waithelp, Sous
Chefs, Breakfast/Lunch Cooks, Dinner/Banquet Cooks,
Prep Cooks, Pantry Cooks, Pastry Chefs, Lead Bakers,
Bakers Helpers, Cafeteria Servers, and Health Club At-
tendants employed at the Respondent’s Sheraton An-
chorage facility, excluding all managers, supervisors,
and confidential employees, as defined by the Act.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the above-stated bargaining unit.
SHERATON ANCHORAGE 809
(c) On request by the Union, rescind the changes in the
terms and conditions of employment for its unit employ-
ees that were unilaterally implemented on March 18,
2010, regarding a guest satisfaction incentive plan, and
on May 1, 2010, regarding the unit employees’ health
insurance plan.
(d) Make whole its employees for any losses incurred
as a result of its unilateral changes made in the terms and
conditions of their employment, including out-of-pocket
medical expenses that employees were required to pay
themselves as a result of no longer being covered by the
medical insurance plan provided for in the expired col-
lective-bargaining agreement, plus interest as provided
for in the remedy section of the judge’s decision, and, as
to the October 2009 unilateral changes, as limited in the
amended remedy section of this decision.
(e) Within 14 days from the date of this Order, offer
Gina Tubman, Joanna Littau, Lucy Dudek, and Troy
Prichacharn full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges previously enjoyed.
(f) Within 14 days from the date of this Order, rescind
the suspensions and/or written disciplines issued to Gina
Tubman, Joanna Littau, Anna Rodriguez, Maria Hernan-
dez, Lucy Dudek, Su Ran Pak, Troy Prichacharn, Juanita
Bourgeois, and Joey Pitcher.
(g) Make Gina Tubman, Joanna Littau, Anna Rodri-
guez, Maria Hernandez, Lucy Dudek, Su Ran Pak, Troy
Prichacharn, Juanita Bourgeois, and Joey Pitcher whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.
(h) Within 14 days from the date of this Order, remove
from its files any references to the unlawful discharges,
suspensions, and/or written disciplines of Gina Tubman,
Joanna Littau, Anna Rodriguez, Maria Hernandez, Lucy
Dudek, Su Ran Pak, Troy Prichacharn, Janita Bourgeois,
and Joey Pitcher, and within 3 days thereafter, inform
them in writing that this has been done and that the dis-
charges, suspensions, and/or written disciplines will not
be used against them in any way.
(i) Compensate employees entitled to backpay under
the terms of this Order for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and file a
report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters
for each employee.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(k) Within 14 days from the date of this Order, rescind
or revise the overly broad confidentiality rule to remove
any language that prohibits or may be read to prohibit
employees from discussing wages or other terms and
conditions of employment.
(l) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein em-
ployees “agree not to return to the hotel before or after
[their] working hours without authorization from [their]
manager.”
(m) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein em-
ployees “must confine their presence in the hotel to the
area of their job assignment and work duties. It is not
permissible to roam the property at will or visit other
parts of the hotel, parking lots, or outside facilities with-
out the permission of the immediate Department Head.”
(n) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein “dis-
tribution of any literature, pamphlets, or other material in
a guest or work area is prohibited. . . . Solicitation of
guests by associates at anytime for any purpose is also
inappropriate.”
(o) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein em-
ployees are prohibited from disclosing confidential in-
formation, including “personnel file information” and
“labor relations” information, and further providing that
when disclosure is required “by judicial or administrative
process or order or by other requirements of law,” em-
ployees must give 10 days’ written notice to [Respond-
ent’s] legal department prior to disclosure.”
(p) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein em-
ployees may not “give any information to the news me-
dia regarding the hotel, its guests, or associates, without
authorization from the General Manager and to direct
such inquiries to his attention.”
(q) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein a
“conflict of interest with the hotel or company is not
permitted.”
(r) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein “be-
havior which violates common decency or morality or
publicly embarrasses the hotel or company” is prohibit-
ed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810
(s) Within 14 days from the date of this Order, rescind
or revise the rule in its employee handbook wherein “in-
subordination or failure to carry out a job assignment or
job request of management” is prohibited.
(t) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the un-
lawful rules have been rescinded, or (2) provide the lan-
guage of lawful rules; or publish and distribute a revised
employee handbook that (1) does not contain the unlaw-
ful rules, or (2) provides the language of lawful rules.
(u) Within 14 days after service by the Region, post at
its hotel in Anchorage, Alaska, copies of the attached
notice marked “Appendix”
11
in both English and Span-
ish. Copies of the notice, on forms provided by the Re-
gional Director for Region 19, 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 posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July of 2009.
(v) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees in both English and Spanish by a
high-ranking management official or, at the Respond-
ent’s option, by a Board agent in the presence of such an
official.
(w) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with UNITE HERE!, Local 878, AFL–CIO (the Union)
as the exclusive collective-bargaining representative of
the employees in the bargaining unit.
WE WILL NOT withdraw recognition from the Union
and fail and refuse to bargain with the Union as the ex-
clusive collective-bargaining representative of unit em-
ployees.
WE WILL NOT unilaterally change the terms and condi-
tions of employment of our unit employees.
WE WILL NOT refuse to bargain collectively with the
Union by unilaterally implementing and giving effect to
collective-bargaining proposals covering terms and con-
ditions of employment of unit employees without fully
complying with the requirements of Section 8(d)(3) of
the Act at a time when the Union retains the right to be
recognized as the exclusive collective-bargaining repre-
sentative of the unit employees.
WE WILL NOT issue disciplinary warnings or suspend
you because of your support for and activities on behalf
of the Union or for engaging in other protected concerted
activity.
WE WILL NOT discharge or otherwise discriminate
against you for supporting the Union or any other labor
organization or for engaging in other protected concerted
activity.
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that employees “agree not to return
to the hotel before or after [their] working hours without
authorization from [their] manager.”
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that employees “must confine their
presence in the hotel to the area of their job assignment
and work duties. It is not permissible to roam the proper-
SHERATON ANCHORAGE 811
ty at will or visit other parts of the hotel, parking lots, or
outside facilities without the permission of the immediate
Department Head.”
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that “distribution of any literature,
pamphlets, or other material in a guest or work area is
prohibited . . . . Solicitation of guests by associates at
anytime for any purpose is also inappropriate.”
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that employees are prohibited from
disclosing confidential information, including “personnel
file information” and “labor relations” information, and
further providing that when disclosure is required “by
judicial or administrative process or order or by other
requirements of law,” employees must “give ten days’
written notice to [our] legal department prior to disclo-
sure.”
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that employees may not “give any
information to the news media regarding the hotel, its
guests, or associates, without authorization from the
General Manager and to direct such inquiries to his atten-
tion.”
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that a “conflict of interest with the
hotel or company is not permitted.”
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that prohibits “behavior which vio-
lates common decency or morality or publicly embar-
rasses the hotel or company.”
WE WILL NOT maintain and/or enforce a rule in our
employee handbook that prohibits “insubordination or
failure to carry out a job assignment or job request of
management.”
WE WILL NOT confiscate union buttons worn or carried
by you.
WE WILL NOT solicit or otherwise coerce you to sign a
petition seeking to decertify the Union as your collective-
bargaining representative.
WE WILL NOT promise you favorable treatment if you
sign a decertification petition.
WE WILL NOT threaten to discharge you for refusing to
sign a decertification petition.
WE WILL NOT coercively interrogate you regarding
your support for the Union.
WE WILL NOT denigrate the Union by informing you
that we intend to unilaterally implement changes in unit
employees’ terms and conditions of employment without
having first reached a good-faith collective-bargaining
impasse with the Union.
WE WILL NOT prematurely declare an impasse in col-
lective-bargaining negotiations with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All Guest Service Agents, Communication Agents,
Guest Service Agent Supervisors, Bell Captains, Bell
Persons, Reservation Sales Agents, Door Per-
sons/Drivers, Room Attendants, Inspectors/Floor Su-
pervisors, Linen Room Attendants, Laundry Seam-
stresses, Maintenance employees, Porters, Storeroom
Clerks, Lead Storeroom Clerks, Receiving Clerks,
Maitre D’s, Captains, Hosts/Hostesses, Restaurant
Cashiers, Bus help, Coat Checkers, Banquet Waithelp,
Banquet Housepersons, Banquet Bartenders, Room
Service/Restaurant Waiters, Persons, Lead Stewards,
Chief Stewards, Stewards, Bartenders/Service, Bar-
tenders Tipped, Bar Backs, Cocktail Waithelp, Sous
Chefs, Breakfast/Lunch Cooks, Dinner/Banquet Cooks,
Prep Cooks, Pantry Cooks, Pastry Chefs, Lead Bakers,
Bakers Helpers, Cafeteria Servers, and Health Club At-
tendants employed at the Respondent’s Sheraton An-
chorage facility, excluding all managers, supervisors,
and confidential employees, as defined by the Act.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the bargaining unit.
WE WILL, on request by the Union, rescind the changes
in the terms and conditions of employment of our unit
employees that we unilaterally implemented on March
18, 2010, regarding a guest satisfaction incentive plan
and on May 1, 2010, regarding the unit employees’
health insurance plan.
WE WILL make whole employees for any losses in-
curred as a result of the unilateral changes we unlawfully
made in the terms and conditions of your employment,
including out-of-pocket medical expenses that employees
were required to pay as a result of no longer being cov-
ered by the medical insurance plan provided for in the
expired collective-bargaining agreement.
WE WILL, within 14 days from the date of the Board’s
Order, offer Gina Tubman, Joanna Littau, Lucy Dudek,
and Troy Prichacharn full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights or privileges previously enjoyed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812
WE WILL, within 14 days from the date of the Board’s
Order, rescind the suspensions and/or written disciplines
issued to Gina Tubman, Joanna Littau, Anna Rodriguez,
Maria Hernandez, Lucy Dudek, Su Ran Pak, Troy
Prichacharn, Juanita Bourgeois, and Joey Pitcher.
WE WILL make Gina Tubman, Joanna Littau, Anna
Rodriguez, Maria Hernandez, Lucy Dudek, Su Ran Pak,
Troy Prichacharn, Juanita Bourgeois, and Joey Pitcher
whole for any loss of earnings and other benefits suffered
as a result of our discrimination against them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the un-
lawful discharges, suspensions, and/or written disciplines
of Gina Tubman, Joanna Littau, Anna Rodriguez, Maria
Hernandez, Lucy Dudek, Su Ran Pak, Troy Prichacharn,
Juanita Bourgeois, and Joey Pitcher, and WE WILL, within
3 days thereafter, inform them in writing that this has
been done, and that the discharges, suspensions, and/or
written disciplines will not be used against them in any
way.
WE WILL compensate employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay award to the
appropriate calendar quarters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the overly broad confidentiality
rule to remove any language that prohibits or may be
read to prohibit employees from discussing wages or
other terms and conditions of employment.
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein employees “agree not to return to the hotel
before or after [their] working hours without authoriza-
tion from [their] manager.”
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein employees “must confine their presence in
the hotel to the area of their job assignment and work
duties. It is not permissible to roam the property at will
or visit other parts of the hotel, parking lots, or outside
facilities without the permission of the immediate De-
partment Head.”
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein “distribution of any literature, pamphlets,
or other material in a guest or work area is prohibited
. . . . Solicitation of guests by associates at anytime for
any purpose is also inappropriate.”
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein employees are prohibited from disclosing
confidential information, including “personnel file in-
formation” and “labor relations” information, and further
providing that when disclosure is required “by judicial or
administrative process or order or by other requirements
of law,” employees must give ten days’ written notice to
[Respondent’s] legal department prior to disclosure.”
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein employees may not “give any information
to the news media regarding the hotel, its guests, or asso-
ciates, without authorization from the General Manager
and to direct such inquiries to his attention.”
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein a “conflict of interest with the hotel or
company is not permitted.”
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein “behavior which violates common decency
or morality or publicly embarrasses the hotel or compa-
ny” is prohibited.
WE WILL, within 14 days from the date of the Board’s
Order, rescind or revise the rule in our employee hand-
book wherein “insubordination or failure to carry out a
job assignment or job request of management” is prohib-
ited.
WE WILL furnish all current employees with inserts for
the current edition of the employee handbook that (1)
advise that the unlawful rules, above, have been rescind-
ed, or (2) provide the language of lawful rules; or publish
and distribute to all current employees a revised employ-
ee handbook that (1) does not contain the unlawful pro-
visions, or (2) provides the language of lawful rules.
REMINGTON LODGING & HOSPITALITY, LLC,
D/B/A THE SHERATON ANCHORAGE
Mara-Louise Anzalone, for the General Counsel.
Arch Y. Stokes, Esq., Karl M. Terrell, Esq., and Peter G. Fish-
er, Esq., of Atlanta, Georgia, for the Respondent.
Dmitri Iglitzin, Esq., of Seattle, Washington, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Anchorage, Alaska, on 40
dates between August 17, 2010, and January 28, 2011. This
case was tried following the issuance of an order consolidating
cases, consolidated complaint, and notice of hearing (the first
complaint) by the Regional Director for Region 19 of the Na-
tional Labor Relations Board (the Board) on May 28, 2010, and
subsequently following the issuance of an order consolidating
cases, consolidated complaint and notice of hearing (the second
complaint) by the Regional Director for Region 19 on August
SHERATON ANCHORAGE 813
17, 2010. (Hereinafter, both consolidated complaints will be
referred to collectively as the complaint.) The complaint was
based on a number of original and amended unfair labor prac-
tice charges, as captioned above,1 filed by UNITE HERE!,
Local 878, AFL–CIO (the Union, Local 878, or the Charging
Party). It alleges that Remington Lodging & Hospitality, LLC,
d/b/a the Sheraton Anchorage (the Respondent, the Employer,
Remington, the Sheraton, or the hotel)2 violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). The Respondent filed timely answers to the complaint
denying the commission of the alleged unfair labor practices.3
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally, and file briefs.
The briefs in this case were due to be filed with the Division
of Judges in San Francisco, California, on April 11, 2011. The
Board’s “e-filing” procedures, found on the Board’s Internet
Website, specifically advise parties that the Agency will accept
electronic fillings up to 11:59 p.m. in the local time zone of the
receiving office on the due date. However, I will take adminis-
trative notice that the e-filing system at the Division of Judges
in San Francisco recorded the time as 12:21 a.m., on April 12,
2011, when the Respondent’s brief was finally received. Fur-
ther, I will take administrative notice that absent from that brief
was any signatory page and a certificate of service. At my
instruction, counsel for the Respondent’s office was informed
that the brief had arrived late, and was missing the signatory
page and certificate of service. Sometime later on April 12,
2011, the Respondent’s counsel emailed the Division of Judges
a second brief, containing both a signatory page and a certifi-
cate of service, and also containing some apparently superficial
changes to the text of the original brief.
Counsel for the General Counsel has filed a motion to strike
as late filed both the original brief and the second brief filed by
counsel for the Respondent. In reply, counsel for the Respond-
ent has filed a motion for acceptance of brief filed [18] minutes
after deadline, and withdrawal of second brief. In his motion,
counsel for the Respondent explains that he began to upload the
brief from the firm’s computer system into the Agency’s e-
filing system in a timely fashion, but that he encountered un-
foreseen technical problems, which caused the brief to not be
finally received at the Division of Judges until some 18 minutes
after the brief was due. (As noted, the records from the Divi-
sion of Judges show the brief was actually received 21 minutes
late.) Counsel is very apologetic in his motion, withdraws the
second brief submitted later on April 12, and explains it as

1 During the course of the hearing, the Respondent stipulated to and
admitted the various dates on which the enumerated original and
amended charges were filed by the Union and served on the Respond-
ent as alleged in the complaint.
2 The parties stipulated at the hearing to the correct name of the Re-
spondent as is reflected above.
3 All pleadings reflect the complaint and answers thereto (collective-
ly the answer) as those documents were finally amended at the hearing.
Certain amendments to the complaint offered by counsel for the Gen-
eral Counsel during the hearing were permitted by me over the objec-
tion of counsel for the Respondent.
merely a misunderstanding on his part and not an effort to de-
ceive. He cites Section 102.111(c) of the Board’s Rules and
Regulations, which provides for the acceptance of late filed
briefs upon good cause shown, and a showing of excusable
neglect and undue prejudice, and asks that the original brief be
accepted.
In my view, to reject the Respondent’s original brief filed 21
minutes late would be to elevate form over substance. This
case took 40 days to try and the record consists of over 7000
pages, with hundreds of exhibits. To deny the Respondent the
ability to argue its position in such a massive case in a
posthearing brief would be unnecessarily harsh. Counsel has
offered a plausible explanation for the late filing of the original
brief, and I have no reason to doubt his assertions. Further, I
conclude that counsel for the General Counsel was not preju-
diced by the filing of the Respondent’s brief a mere 21 minutes
late. Accordingly, I hereby deny counsel for the General Coun-
sel’s motion to strike and accept the Respondent’s original brief
as received at the Division of Judges at 12:21 a.m. on April 12,
2011. As counsel for the Respondent has withdrawn the second
brief submitted later on that date, the issue in now moot.
Based on the record, in consideration of the briefs filed by
counsel for the General Counsel and counsel for the Respond-
ent, and my observation of the demeanor of the witnesses,4 I
now make the following findings of fact and conclusions of
law.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the evidence establishes that the
Respondent, a Florida corporation, is engaged in the business of
providing hotel management services, with a place of business
at 401 East 6th Avenue, Anchorage, Alaska, where it operates
and manages the Sheraton Anchorage Hotel. The parties stipu-
lated at the hearing that the Respondent, during the 12 months
preceding the issuance of the first complaint, in conducting its
business operations, derived gross revenues in excess of
$500,000, and also purchased and received at its Anchorage
facility goods valued in excess of $50,000 directly from points
located outside the State of Alaska.
Accordingly, the parties stipulated and I conclude that the
Respondent is now, and at all times material herein has been, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges that the Union is a labor organization.
The Respondent’s answer denies that allegation. However, the
evidence provided at the hearing through the testimony of nu-

4 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 814
merous witnesses establishes that Local 878 negotiates collec-
tive-bargaining agreements on behalf of employees with vari-
ous employers in the State of Alaska, the terms of which
agreements provide for the wages, hours, and working condi-
tions of the represented employees. Further, the evidence es-
tablishes that Local 878 engages in the processing of grievances
under the terms of those collective-bargaining agreements on
behalf of said employees, and that employees fully participate
in the operation of the Union and in the collective-bargaining
process.
Accordingly, I find that at all times material herein, the Un-
ion has been a labor organization within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Historical Overview
The Sheraton Anchorage is a 370 room hotel located in
downtown Anchorage, Alaska. The Union has represented a
unit of employees at the hotel for approximately 30 years.
There are approximately 180 employees in that unit, which, for
the most part, is a “wall to wall” unit of employees. In Decem-
ber 2006, the hotel property was purchased by Ashford TRS
Nickle, LLC (Ashford). Remington, as agent for the new own-
er, assumed management of the hotel and hired all of the exist-
ing employees. At the time the hotel was purchased, a collec-
tive-bargaining agreement was in effect between Interstate
Hotels and Resorts, Inc. d/b/a Sheraton Anchorage Hotel (Inter-
state), the previous operator of the hotel, and the Union. Under
the terms of that agreement, its provisions were in effect from
March 1, 2005, to February 28, 2009.
The parties have stipulated that Remington is a successor to
Interstate with respect to the operation of the hotel. (GC Exh.
5.) Further, they stipulated that the Union was the exclusive
collective-bargaining representative of the employees in the
hotel unit, which unit constituted an appropriate bargaining unit
within the meaning of Section 9(a) of the Act. The parties
agreed that Interstate recognized the Union as such in succes-
sive collective-bargaining agreements, until the hotel was sold
in December 2006. The most recent of those agreements is
referred to as the expired CBA, and, as noted, was in effect
from March 1, 2005, to February 28, 2009. Remington
acknowledges that it recognized the Union as its employees'
collective-bargaining representative and it assumed the collec-
tive-bargaining agreement when it commenced operating the
hotel in December 2006. It admits to being a successor em-
ployer within the meaning of the Act. Finally, the parties stipu-
lated that the represented unit at the hotel consisted of all em-
ployees, with the exception of guards, supervisors, managerial
employees, clerical employees, and confidential employees.5

5 There were, however, two categories of employees that the parties
could not agree were included in the represented unit, specifically laun-
dry workers and spa workers. While the General Counsel and the Un-
ion contend that these employees are included in the unit, the Respond-
ent denies that assertion.
B. The Dispute
The central issue between the parties revolves around the ef-
forts of the Union and the Respondent to reach an agreement
over the terms and conditions of a new collective-bargaining
agreement. The last contract between the Union and the Re-
spondent, set to expire on February 28, 2009, would by its
terms continue from year to year “unless either party elects to
terminate or proposes changes in the terms of the agreement.”
Further, notice to terminate was required to be given in writing
“not less than sixty (60) days before the 31st day of January
2009. . . . [and] the parties must commence negotiation forty-
five (45) days prior to January 31, 2009.” (GC Exh. 5.)
It is the position of the General Counsel that the Respondent
was not interested in reaching an agreement with the Union
over the terms of a new contract, and that the actions of the
Respondent were intended to frustrate the bargaining process
making it impossible to negotiate a new contract. According to
the General Counsel, the actions of the Respondent’s negotia-
tors at the bargaining table constituted surface and bad faith
bargaining, while its managers and supervisors committed nu-
merous and pervasive unfair labor practices away from the
bargaining table intended to destroy the Union’s majority sup-
port among the unit employees. It is the contention of the Gen-
eral Counsel that the Respondent, after months of surface bar-
gaining, declared an impasse in negotiations, at a time when no
good-faith impasse existed, and then prematurely and unilater-
ally implemented certain of its proposals made at the bargain-
ing table. Away from the bargaining table, the Respondent is
alleged to have harassed and discriminatorily disciplined union
supporters, disparaged the Union, threatened union supporters
with adverse action, and supported an effort to decertify the
Union. All these efforts, the General Counsel contends, were
undertaken as part of a well orchestrated campaign to create a
union free environment at the hotel.
Not surprisingly, the Respondent views the events in ques-
tion from a totally different prism. It argues that the economic
conditions in the hospitality industry were so severely de-
pressed at the time of the events in question that economic con-
cessions on the part of the Union were a necessity, if a viable
contract were to be achieved. The Respondent argues that de-
spite putting forth its best and considerable efforts to get the
Union to “see the light” and agree to concessions that the Union
adamantly refused to do so. It is the Respondent’s theory that
the Union’s intransience was part of a national strategy imple-
mented by its International Union (UNITE HERE!, Internation-
al Union) for all its constituent local unions to encourage them
to resist any concessionary or “give back” agreements during
this period of economic depression in the hospitality industry.
The national strategy was simply to have the local unions delay
and procrastinate at the bargaining table so as to protract the
negotiating process until such time as the economic conditions
improved. The Respondent insists that as this national cam-
paign was practiced by the Union in Anchorage, it was the
Union, rather than the Respondent, which was engaged in sur-
face and bad-faith bargaining. Under these circumstances, the
Respondent contends that a genuine impasse was reached in
bargaining, after which it lawfully implemented certain provi-
sions of its last, firm, and final offer.
SHERATON ANCHORAGE 815
As to matters occurring away from the bargaining table, the
Respondent argues that it engaged in no disparate or discrimi-
natory conduct towards union supporters, did not disparage the
Union, made no unlawful unilateral changes in the terms and
conditions of employment of its employees, and certainly did
not support any effort to decertify the Union. Rather, the Re-
spondent contends that the decertification petition filed against
the Union was the result of the genuine manifestation of the
employees’ dissatisfaction and unhappiness with the quality
and cost of their Union’s representation. Allegedly, those de-
certification efforts were independently initiated by the em-
ployees, and were not assisted in any material way by the Re-
spondent’s supervisors or agents.
C. The Principal Negotiators
As the central issue in this case involves the content and the
character of the collective-bargaining negotiations between the
Union and the Employer, it is necessary to spend some time
discussing my impressions of the principal negotiators. While
some individuals came and went during the course of negotia-
tions, certain negotiators remained relatively constant.
Beyond question, the Respondent’s lead spokesperson and
principal negotiator was Arch Stokes, who also served as one of
the Respondent’s lead counsels during the course of this unfair
labor practice trial. He participated and was in attendance at
each and every one of the parties’ collective-bargaining ses-
sions. Another management participant at some of the bargain-
ing sessions was Mary Villareal. She had previously served as
the Respondent’s senior vice president of human resources
during the period that the Respondent assumed operation of the
hotel. Thereafter, she returned to work for the Respondent as a
“consultant.” Todd Stoller, the Respondent’s vice president of
development, was another regular attendee during negotiations.
Finally, it is worth noting that the Respondent’s president and
chief operating officer is Mark Sharkey. While Sharkey was
the final authority on those issues relating to the negotiations,
he did not personally attend any of the bargaining sessions.
However, certain of his management team, based in Texas, did
attend selective negotiations, including Don Denzin, senior vice
president of human resources, Keith Wolling, division vice
president, and Ann Binns, executive vice president of human
resources.
On the Union side, the principal negotiator and spokesperson
was Rick Sawyer, a UNITE HERE!, International Union vice
president and Northwest Regional Director. He attended each
and every bargaining session, with the exception of the first two
meetings between the parties occurring in October of 2008.6
Also present for almost all the negotiation sessions was Jessica
Lawson, an organizer with the UNITE HERE!, International
Union, and Marvin Jones, the Union’s President. Daniel Es-
parza, the Union’s business representative, attended some meet-
ings, along with certain employee members of the union bar-
gaining committee.
During the hearing, the Union and the General Counsel were

6 The Union and the General Counsel do not characterize these two
meetings as negotiation sessions, which issue I will address later in this
decision.
highly critical of the actions and conduct of Arch Stokes at the
negotiation table and during the course of those negotiations.
Counsel for the General Counsel continued with that criticism
in her posthearing brief. Similarly, during the hearing and in its
brief, the Respondent was highly critical of Rick Sawyer and
the alleged influence of the International Union in the course of
negotiations. Accordingly, I believe it to be necessary and
appropriate for me to make some preliminary comments re-
garding my observation of these two men and my understand-
ing of their conduct during negotiations. These comments and
observations are based on my presence in the hearing room
with Arch Stokes for approximately 40 days of hearing, and
with Rick Sawyer for a extended, but somewhat shorter period
of time. I was able during this time to observe their personali-
ties at work and their demeanor, as each testified for a signifi-
cant period.
In her posthearing brief, counsel for the General Counsel
cites to and quotes from a specific Board and court of appeals
decision where Stokes had been the lead negotiator for his cli-
ent, and subsequently was counsel at the hearing where that
client, now a respondent, was charged with bad-faith bargain-
ing. Radisson Plaza Minneapolis, 307 NLRB 94 (1992), enfd.
987 F.2d 1376 (8th Cir. 1993). In that case, the Board agreed
with the administrative law judge and found that the respondent
violated the Act by engaging in surface bargaining throughout
the parties’ negotiations. Specifically, the Board noted “the
penchant of the [r]espondent’s chief negotiator, Stokes, for
consuming time during the 11 negotiating sessions with exten-
sive perambulations on such topics as changes in tax laws, a
former HEW Secretary’s book on health care, union corruption,
and his anger at adverse union publicity concerning the
[r]espondent.”
In the ALJ’s decision in that case, he commented at length
about Stokes, who while counsel for the respondent in that trial,
did not testify regarding his role as negotiator. Therefore,
while the judge could make no findings based upon Stokes’
demeanor or his credibility, he felt “entitled to draw certain
conclusions on [Stokes] personality, his ways of doing things,
and his conduct,” after having spent “the best part of 4 days”
observing Stokes at trial. (307 NLRB at 101.)
The judge commented that he “found Stokes to be a highly
intelligent person, having a remarkable memory, and a broad,
cultivated, and cosmopolitan mind.” The judge considered
whether these qualities could explain Stokes “discussions and
digressions” during negotiations, or whether this conduct con-
stituted “a sham, designed to dazzle, to distract and delay the
collective bargaining process.” Id. Ultimately, the judge de-
cided that certain bargaining proposals put forth on behalf of
the respondent by Stokes, who the judge characterized as “an
able and experienced labor relations attorney, through eleven
bargaining sessions over an 8-month period, ‘are clearly de-
signed to frustrate agreement on a collective bargaining con-
tract.’” Id. at 115, citing Reichhold Chemicals, 288 NLRB 69
(1988).
I spent approximately 40 days with Stokes, who functioned
in the case at hand as both lead counsel and a prominent, criti-
cal witness. Accordingly, I believe that I am every bit as quali-
fied to comment on and discuss Stokes’ personality and de-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
meanor as my colleague in the earlier case, who spent much
less time with Stokes than I. My impression of Stokes is
somewhat different than my colleague’s impression.
I also find Stokes to be a highly intelligent person, having a
superior memory, and with a broad, cultivated depth of worldly
knowledge. Stokes loves to talk. Even more than that, he loves
to “hold court” and be the center of attention. I do not believe
that he does it by design, rather, it is simply who he is. It is part
of his persona. I observed him doing such in casual off the
record conversations, while on the record examining and cross-
examining witnesses, when arguing motions, and while testify-
ing himself as a witness. I do not believe that he does it inten-
tionally to impress others, as once again, I believe this is simply
who he is. He frequently demonstrated the capacity to talk for
extensive periods of time, and to repeat himself over the course
of a conversation and the days and weeks that follow. On one
occasion early in the trial, I told Stokes on the record that he
was certainly no “shrinking violet.” This I can now say was an
understatement.
As the person conducting the trial, I found Stokes to be a
courteous, polite, gentleman, with appropriate court room eti-
quette. However, as an advocate for his client he could be
forceful, direct, and sarcastic when he believed that the situa-
tion called for it, but never gratuitously nasty. Having watched
him behave so at trial in his dual roles as both a lawyer and
witness, I am of the view that he behaved this way as well dur-
ing negotiations. On the whole, I found Stokes to be a rather
personable fellow. But, I can see how others might not, espe-
cially those who sat opposite him at the negotiating table. He
has the tendency of rambling on about certain favorite subjects
such as a contract that he negotiated years ago, referred to as
the Colonial Williamsburg contract, which he believes was fair
to all and could be used as a guide for the type of contract the
Respondent and the Union might agree to. He is certainly ex-
tremely knowledgeable in the field of collective bargaining in
the hospitality industry, having negotiated numerous contracts,
and having written a book on the subject,7 which he brings up
in conversation repeatedly. Having heard him raise these sub-
jects many times during the course of the trial in this case, I
have no doubt, as testified to by union witnesses Lawson and
Sawyer, that Stocks raised them repeatedly during negotiations.
At times Stokes raises subjects that seem only distantly relat-
ed to the matters at hand. He did so repeatedly at trial, and, as
testified to by various union witnesses, similarly did so during
negotiation sessions. As an example, early on in these negotia-
tions, Stokes spoke at length about Mayan culture and how the
participants at the bargaining session should properly be ad-
dressed. My view is that Stokes has a very active mind and is
knowledgeable on a wide variety of subjects. He enjoys “edu-
cating” people, and will look for reasons to do so. His “lec-
tures” do frequently have some connection with the topic being
discussed, even if only tangentially. Where there is no obvious
connection, I believe the subject is raised by Stokes not to be an
obstructionist, but because he genuinely finds the subject inter-
esting.

7 “The Collective Bargaining Handbook for Hotels, Restaurants &
Institutions,” by Arch Stokes. (R. Exh. 28.)
Certainly Stokes’ manner could be frustrating for the union
negotiators who wanted to keep the discussion on track. Never
the less, after observing Stokes through the course of this long
trial, I do not believe that his manner of presentation at the
bargaining table was intended to protract or frustrate the bar-
gaining process. He “was,” who he “is.” While others may not
like his method of presenting or addressing a subject for discus-
sion at negotiations, I do not find his conduct egregious, and I
do not believe that it was intended to subvert the bargaining
process. I conclude that Stokes’ manner of negotiation does not
constitute surface or bad-faith bargaining. However, there is
clearly much more involved in the General Counsel’s allegation
of bad-faith bargaining on the part of the Respondent than
simply Stokes’ manner of presentation. These other issues will
be discussed at length later in this decision.
The other principal negotiator was Rick Sawyer on behalf of
the Union. I believe it to be safe to say that his personal con-
duct at the negotiation sessions was much less complex and
controversial than Stokes’. After observing Sawyer testify in
this proceeding, I am of the view that he is a direct, to the point,
“no nonsense” type of person and negotiator. He testified about
the frustrations he felt in having to negotiate across the bargain-
ing table from Stokes, in particular Stokes’ habit of getting off
topic, or lecturing the assembled group about such matters as
the Colonial Williamsburg contract, Stokes’ book on collective
bargaining in the hospitality industry, or his various theories on
related and unrelated subjects. While the Respondent has
raised a strong concern about Sawyer’s alleged adherence to a
national policy of the International Union regarding conces-
sionary contracts, which issue will be addressed at length be-
low, there has really been no effort on the part of the Respond-
ent to offer evidence critical of Sawyer’s manner of bargaining
at the table. Again, his manner of presentation is much less an
issue than that of Stokes.
D. The Economic Climate
The Respondent argues vociferously that the economic con-
ditions in effect in the nation as a whole and in Alaska in par-
ticular, with specific emphasis on the hospitality industry, had a
direct and critical impact on the negotiations between the par-
ties. I believe that there is some truth to that contention, and,
so, an analysis of that economic climate must be considered.
It is the Respondent’s position that because of the severe re-
cession in the nation, with even worse conditions in the hospi-
tality industry in Alaska, that the Respondent was forced to
propose significant economic concessions from the Union.
From the beginning of the negotiation process until its conclu-
sion with the declaration of impasse from the Respondent,
Stokes insisted that the Union make major economic conces-
sions. In the Respondent’s posthearing brief, counsel asks that
I take administrative notice that “the negotiations for a new
contract at the Sheraton Anchorage began and continued during
the worst, and most prolonged, bad economy the world has
seen since the Great Depression of the 1930s.” Counsel then
cites certain economic measurements, such as the Dow Jones
Industrial Average, to support its contention as to the serious-
ness of the economic decline. Without quantifying the precise
depth of the recent economic recession, I certainly can and will
SHERATON ANCHORAGE 817
take administrative notice that during the approximate time
period the parties were bargaining over the terms of a new con-
tract, from about October 2008, through March 2010, the nation
was in a prolonged and sever economic recession.
In an effort to establish the severity of the recession on the
Alaskan hospitality industry, the Respondent called several
witnesses, whose testimony was never seriously challenged.
Dr. Pershing J. Hill, who holds a Ph.D. in economics, and
taught economics at the University of Alaska from 1975 to
2008,8 described the impact of the recession on Alaska’s hospi-
tality industry. Hill testified in detail as to the specifics of the
decline in the industry from the peak economy in 2007 into
2010. According to his testimony and a paper on the subject
that was admitted into evidence (R. Exh. 133), the hotel indus-
try in Alaska, as measured by a “bed tax,” declined by 17 per-
cent from the peak year through 2009. Although it improved
minimally, the decline from the peak year into 2010 was still
approximately 14 percent.
Also testifying on behalf of the Respondent was the hotel
controller, David Jones. Introduced into evidence through his
testimony were the hotel’s profit and loss statements showing
that the revenue for the hotel fell from $19.14 million at year
end 2007 to $18.28 million at yearend 2008, and, thereafter,
sharply down to $14.86 million by yearend 2009. This repre-
sents a total decline in revenue from 2007 to 2009 of 22.36
percent. Further, while actual revenues made a slight recovery
in 2010, in 2009 the hotel had projected and, accordingly,
needed to budget for a drop in revenue to $13.70 million for
2010. (R. Exhs. 126, 127.) For the most part, Jones’ figures
are supported by Dr. Hill’s study, and I accept them as accu-
rate.
It is, of course, the Respondent’s position that this deep re-
cession in the hospitality industry, and specifically the sharp
decline in the hotel’s revenue, was the catalyst that motivated
the Respondent to propose significant economic concessions
from the Union. Economic concessions remained the Respond-
ent’s “mantra” throughout the period of negotiations. Concom-
itantly, counsel for the Respondent argues that this resulted in
hard bargaining on the Respondent’s part, but not bad-faith
bargaining. These issues will be discussed more fully later in
this decision.
E. Hotel Workers Rising
There is no unfair labor practice charge before me alleging
that the Union bargaining in bad faith during these negotiations.
Never the less, this is the Respondent’s contention and its de-
fense. It claims that the actions of the Union in refusing to
accept economic concessions in the face of the recession in the
hospitality industry was part of a national strategy instituted by
the International Union. This strategy allegedly called for each
of the constituent local unions to resist entering into a conces-
sionary contract by delaying the negotiations until such time as
the economy improved and a more favorable contract could be

8 I conclude that Dr. Hill is qualified to testify as an expert witness
under Rule 702 of the Federal Rules of Evidence. He possesses the
necessary education, knowledge, training, skill, and experience in order
to form an opinion that may assist me in understanding this specialized,
technical area of expertise. (R. Exh. 132.)
obtained. According to the Respondent, such conduct by the
Union, as part of a concerted campaign with other local unions,
was the reason why the Union unlawfully refused to bargain in
good faith.
Over the strenuous and repeated objections of counsel for the
Union and counsel for the General Counsel, I permitted the
Respondent the opportunity to offer evidence to support this
theory as a defense to the charges brought against it. During
the hearing, I said numerous times on the record that as I could
not conclude that this defense was “frivolous,” that the Re-
spondent would be permitted an opportunity to offer testimony
and other relevant evidence in support of its contention. There-
after, much time was spent by the Respondent in attempting to
offer such evidence. It is now necessary to consider the merits
of the Respondent’s contention.
According to the Respondent, the genesis of this campaign
was an organization known as “Hotel Workers Rising” (HWR).
(R. Exh. 116.) The Internet contains a website by that name,
and during the course of the trial the Respondent offered into
evidence pages from that website, as well as pages from other
websites linked to the HWR site. On its website, the HWR
organization explains the purpose of the organization under the
heading, “2010 HWR Contract Campaign.” Regarding the
recent recession, the HWR contends that, “[N]ationwide, the
hotel industry is rebounding faster and stronger than expected,
but leaders in the industry. . . are proposing long term conces-
sionary contracts that aim to make the recession permanent for
thousands of hotel workers. Proposals in several cities would
result in the elimination of quality health care for thousands of
low-wage workers.” It goes on to say that, “[E]mployers are
using the economy as an excuse to slash jobs in the hotel indus-
try, leaving many unemployed and creating burdensome work-
ing conditions for those who remain. . . . As big hotel compa-
nies stand poised for a major rebound, thousands of hotel work-
ers are organizing to ensure that jobs return to this important
service industry and workers share in future prosperity of the
hotels.” (R. Exh. 116, p.1.)
The quoted article goes on to name a number of “Hot Spots,”
cities where the HWR has labor issues with the hotel industry.
One of the cities listed is Anchorage. Several pages later, the
website article presents a “Boycott List.” Readers are asked to
avoid staying at certain hotels nationwide, which have ongoing
labor disputes or the risk of disputes. It is important to note
that two Anchorage hotel properties are on this boycott list, the
Anchorage Hilton and the Sheraton Anchorage. (R. Exhs.116,
pp. 1–7.) Clearly this is a call to arms by the HWR, and it is
claimed in the first paragraph of the article, “[T]hat’s why thou-
sands of workers bargaining for contracts across North America
are joining together in 2010.”
Also offered by the Respondent as evidence of this national
campaign, is an article by Paul Abowd in “Labor Notes,” a
union publication. In this article, the author reports on the
UNITE HERE!, International Union’s coordinated campaign,
known as Hotel Worker Rising, to obtain good contracts in
certain targeted select cities, specifically Chicago, San Francis-
co, Los Angeles, and Boston. According to the article, the
campaign finds itself at a “moment of truth . . . [as] the hotel
giants are making unprecedented attempts to cut health and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
benefits and up workloads in the recession, while the union is
opening new organizing fronts that highlight stark contrasts
between union and non-union working conditions.” (R. Exh.
22.) However, the article does not mention the negotiations in
Anchorage.
Throughout the course of the hearing, the Respondent’s
counsel attempted to link the lack of progress at the bargaining
table in Anchorage with the HWR campaign. Counsel ques-
tioned Union President Jones, International Union Vice Presi-
dent Sawyer, and Anne Marie Strassel, International Union
communications coordinator. Strassel is responsible for the
HWR website on behalf of the International Union. Although
counsel vigorously questioned these witnesses regarding an
alleged connection between the HWR national campaign and
the Union’s strategy at the bargaining table in Anchorage, he
was not able to get an admission that there was such a connec-
tion. The witnesses denied any link between the events in An-
chorage and the HWR’s national campaign.
Not able to establish direct evidence of such a connection,
counsel tried to show that there was strong circumstantial evi-
dence. Called as a witness by the Respondent was William
Mede, who was the attorney representing the Anchorage Hilton
in negotiations during 2008 and 2009 with the Union for a suc-
cessor collective-bargaining agreement. At the time that he
testified, the Hilton and the Union had been negotiating for
some time without success, and the employees of that hotel
were working without a contract. In questioning Mede, counsel
for the Respondent was obviously trying to show that there was
a pattern in the conduct of negotiations by the Union, which
pattern was allegedly tied to the HWR campaign. Based on
Mede’s testimony, there were some similarities between the
Hilton and the Sheraton negotiations. As with the Respondent,
the Hilton had proposed economic concessions to the Union. In
the case of the Hilton, this consisted of a proposal to have em-
ployees make premium contributions for their health insurance,
and a proposal to increase the number of rooms the attendants
cleaned. According to Mede, the Union refused any such con-
cessions and proposed economic increases in the form of wage
increases over the term of the contract. Mede had no evidence
of a direct link with the HWR campaign, and seemed to offer
no probative evidence of similarities between the bargaining at
the Hilton and Sheraton, except what would be expected of a
union attempting to negotiate contracts at approximately the
same time at two similar hotel properties, which competed with
each other in the same hospitality market.
As further evidence of the alleged impact of the HWR cam-
paign on the negotiations at the Sheraton Anchorage, the Re-
spondent offered into evidence a list prepared by the Interna-
tional Union pursuant to subpoena from the Respondent indi-
cating the status of all collective-bargaining negotiations be-
tween the International Union’s affiliated locals and hotels in
ten selected cites as of August 17, 2010. (R. Exh. 121.) In his
posthearing brief at “Tab B,” counsel for the Respondent num-
bers this list of hotels by property for ease of reference. The
list shows the collective-bargaining status of 173 hotels. Of
that number, only 36 hotels are designated by the Union as
being “under contract.” As counsel notes in his brief, there are
21 hotels designated as being “in negotiations,” but with expi-
ration dates that as of August 17, 2010, had not yet been
reached. Assuming the possibility that those 21 hotels did
eventually reach agreement by their respective contract expira-
tion dates, that would show that as of August 17, 2010, there
were at a minimum a total of 114 hotels out of 171,9 approxi-
mately 67 percent, where the negotiations had not resulted in a
contract as of the respective expiration dates. In fact, many of
these contracts had expired nearly a year before August 17,
2010.
However, I am not convinced that this list shows what coun-
sel for the Respondent argues that it does, namely that the
events at the bargaining table in Anchorage were tied to the
negotiating pattern established under the HWR campaign.
Obviously, some similarities in all these negotiations are clear.
They all occurred during a time of severe national economic
recession, with an especially bad economic impact in the hospi-
tality industry, which was largely dependent on discretionary
spending. In an industry suffering financially, many hotels
attempted to negotiate concessionary contracts with those un-
ions representing their employees. As would be expected, the
unions resisted making such concessions, resulting in protract-
ed and difficult negotiations at many properties.
The Respondent has offered circumstantial evidence, specu-
lation, supposition, and innuendo to try and prove its theory.
However, in my view, this evidence is far from convincing and
is only superficially probative. It does not rebut the testimony
of Jones and Sawyer that the actions of the HWR campaign did
not govern, control, dictate, or influence the conduct of the
union negotiators at the Sheraton negotiations. Common sense
would, of course, support the conclusion that the Union was
trying to avoid making any more concessions than it had to in
order to obtain a contract during tough economic times in the
hotel industry. But hard bargaining does not necessarily make
bad-faith bargaining. In my view, the evidence is insufficient
to establish that the Union’s actions demonstrated that it was
intentionally procrastinating, obstructing, or attempting to pro-
long the negotiations in order to wait out the Employer and the
economic climate. Therefore, I do not conclude that, as argued
by the Respondent, the Union was engaged in bad-faith bar-
gaining.
F. Background Facts and Resolution of Disputed Facts
The record evidence is undisputed that immediately follow-
ing its December 2006 takeover of the hotel operation, the Re-
spondent distributed to its employees the “Remington Associate
Handbook,” containing its workplace rules. (GC Exh. 7.) Em-
ployees acknowledged receipt of the handbooks. This Reming-
ton handbook replaced the handbook of the previous hotel op-
erator, Interstate Hotels Corporation. It is very important to
note that although the new handbook made certain workplace
changes, including changes in many of the job classification
titles, there was no evidence that the Union raised any objection
or grievance to these changes. While it does not appear that the
Respondent formally notified the Union or sought to bargain

9 The number 171 is used rather than 173 since there are two hotels
with no expiration dates shown, likely meaning that these hotels are in
first contract negotiations.
SHERATON ANCHORAGE 819
over these changes, it is equally clear that the bargaining unit
members all learned of the changes through the dissemination
of the new handbook.
The new handbook contained “Associate Rules and Regula-
tions” and other information and definitions, some of which the
General Counsel contends were unlawful on their face, and/or
as enforced. Violation of these rules could result in discipline,
up to and including discharge. (GC Exh. 7.) While the Re-
spondent denies the alleged illegalities of these rules, it does
not deny the existence of this language in the employee hand-
book. The alleged unlawful rules are enumerated below, and
are numbered for ease of reference and correspond to the para-
graphs in the first complaint as listed below:
Rule 1: employees “agree not to return to the hotel before or
after [their] working hours without authorization from [their]
manager,” (par. 11(a), first complaint);
Rule 2: “distribution of any literature, pamphlets, or other
materials in a guest or work area is prohibited. . . . Solicitation
of guests by associates at anytime for any purpose is also inap-
propriate,” (par. 11 (c), first complaint);
Rule 3: “Insubordination or failure to carry out a job assign-
ment or job request of management is prohibited,” (par. 11(h),
first complaint);
Rule 4: employees “must confine their presence in the hotel
to the area of their job assignment and work duties. It is not
permissible to roam the property at will or visit other parts of
the hotel, parking lots, or outside facilities without the permis-
sion of the immediate Department Head,” (par. 11(b), first
complaint);
Rule 5: “conflict of interest with the hotel or company is not
permitted,” (par. 11(f), first complaint);
Rule 6: “Behavior which violates common decency or mo-
rality or publicly embarrasses the Hotel or Company” is prohib-
ited, (par. 11(g), first complaint);
Rule 7: employees are prohibited from disclosing confiden-
tial information, including “personnel file information” and
“labor relations” information. But when disclosure is required
“by judicial or administrative process or order or by other re-
quirements of law,” employees must “give ten days’ written
notice to [the Respondent’s] legal department prior to disclo-
sure,” (par. 11(d), first complaint); and
Rule 8: employees may not “give any information to the
news media regarding the Hotel, its guests, or associates, with-
out prior authorization from the General Manager and to direct
such inquiries to his attention,” (par. 11(e), first complaint).
During the course of the trial, the parties made much of their
dispute over when negotiations for a new collective-bargaining
agreement actually began. This controversy surrounds the first
two meetings between Stokes and Mary Villareal on the one
hand and Marvin Jones and Daniel Esparza on the other. The
Respondent takes the position that these meetings, which oc-
curred on October 27 and 28, 2008, constituted negotiation
sessions, and demonstrate the Respondent’s desire to meet early
and begin the negotiation process with the expectation of reach-
ing an agreement on a new contract before the existing contract
even expired on February 28, 2009. However, according to the
Union, these two meetings were nothing more than “get ac-
quainted” sessions and did not constitute bargaining.
On October 23, 2008, Arch Stokes’ assistant, Rebecca Hub-
bard, called Esparza and left a voice message that Stokes was in
Africa and wanted to stop in Anchorage and meet with him.
According to Hubbard, this call was merely a confirmation of a
letter from Stokes faxed that same day saying that he and Vil-
lareal would be in Anchorage the following week and wished to
meet with the Union’s representatives for the purpose of collec-
tive bargaining regarding the Sheraton Anchorage contract.
(GC Exh. 6(a).) Esparza had never heard of Stokes and he and
Jones, who also had never heard of Stokes, called Hubbard
back. While the substance of this conversation is in some dis-
pute, all agree that the conversation concluded with Hubbard
convincing Jones and Esparza to meet the following week with
Stokes, who would be returning to the States from a trip to
Africa.
As arranged, on October 27, 2008, Stokes and Villareal met
with Jones and Esparza for the first time. Counsel for the Re-
spondent, in his posthearing brief, acknowledges that the initial
meeting had a “get acquainted” aspect to it, and that Stokes
engaged “loquaciously” over a variety of conversational topics.
That was certainly true, as Stokes spent considerable time dis-
cussing Mayan culture, how people liked to be addressed, and
various other topics not readily apparent to be connected to the
hotel contract. A second meeting was held the following day,
October 28, for a total of 8 hours spent in 2 days of meetings.
It should be noted that in attendance during part of the sessions
were Susan DiMaggio, the Respondent’s general manager until
early 2009, and Jamie Fullenkamp, the hotel’s human resources
director.
While it is certain that there was a good deal of time spent
discussing tangential subjects, clearly some topics related to the
collective-bargaining process were discussed. Stokes spoke
about Remington’s desire to reduce “paid non-work time,” its
desire to eliminate the 30-minute paid meal break, the existing
health and welfare plan, and the alleged unfunded liability of
the pension fund, the sick leave policy, gratuities for banquet
servers, renumbering paragraphs in the contract, bringing it into
conformity with “current law,” the use of “plain language” in
the contract, the classification of “passive member,” and a sub-
ject near and dear to Stokes’ heart, the Colonial Williamsburg
contract, which he believed could serve as a model for the
Sheraton contract.
Jones testified that going into these meetings he had no in-
tention of engaging in collective bargaining and attended them
merely as a courtesy to Stokes, whom he was meeting for the
first time. At some point he became concerned that Stokes
could put him in a “bad position” because of something that he
said or did at the meetings. Stokes asked Jones to get him some
information regarding the alleged unfunded liability of the pen-
sion plan and Jones agreed to do so. The second meeting ap-
parently ended when Jones indicated that he was mired down
with other negotiations, but expected to have those wrapped by
the end of the year.
As noted, the parties disagree as to whether these two meet-
ings in October 2008 constituted bargaining sessions. Follow-
ing the meetings, Hubbard forward to Esparza a copy of the
Colonial Williamsburg contract. (Jt. Exh. 2–005.) On Novem-
ber 4, 2008, Stokes sent a confirmation letter recapping the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
information requests that he had made during the meetings,
including the pension plan information. (Jt. Exh. 2–006.) Get-
ting no response from the Union, Stokes sent a followup letter
dated December 11, 2008, complaining that he had received
none of the requested information, and indicating that it was the
Respondent’s desire that the parties reach an agreement on the
terms of a new contract prior to the expiration of the current
agreement. (Jt. Exh. 2–009.) In response, on December 17,
2008, Jones sent an email saying that he would need until Janu-
ary 20, 2009, to gather the information that Stokes had request-
ed, and further that, “For the record, I would like it to be noted
that in no way did Local 878 engage in any negotiations with
you on October 27 & 28, which I specifically stated on two
occasions. You acknowledged that we were not negotiating but
meeting to get acquainted.” (Jt. Exh. 2–0011.) Stokes re-
sponded by email the following morning saying, “Whatever
you call it, we call the time we met at the Sheraton Anchorage
our 1st session of collective bargaining negotiations. It was
both a get-acquainted session, as well as an opportunity to dis-
cuss substantive contract issues, grievances, and information
requests. We did this . . . . [We] do not want the CBA to expire
before we have had ample time to negotiate in good faith. So,
we continue to stand ready, willing, and able to meet with you
and your team, either in person or telephonically, further to
negotiate a renewal.” (Jt. Exh. 2–0011.)
I am of the view that the meetings of October 27 and 28,
2008, did constitute two bargaining sessions. I am reminded of
that old adage that, “If it walks like a duck, quacks like a duck,
and looks like a duck, it must be a duck.” So, despite lots of
collateral conversation and much “holding of court” by Stokes,
the parties did discuss the existing collective-bargaining agree-
ment at the hotel, and certain changes that the Respondent
wanted to make in the existing contract, and certain contact
issues and questions that Stokes wanted Jones to answer. The
Respondent clearly meant for these meetings to constitute bar-
gaining sessions. While the Union may not have so intended,
Jones did not sit mute at the meetings, but, rather, responded
appropriately to Stokes’ comments and questions, and never
stood up and said emphatically that he was not negotiating and
proceeded to leave the meeting. Regardless of the Union’s
subjective intent, it participated in what became two bargaining
sessions. However, while I conclude that these two meetings in
October 2008 constituted bargaining sessions, I do not place
any special importance on them. They were simply the first of
two meetings between the parties in what was to become a
long, drawn out process of further meetings and a voluminous
exchange of correspondence.
To some extent, both parties appeared to be talking past each
other, a problem that continued to exist throughout the course
of negotiations. On December 16, 2008, Jones sent a standard
“reopener” letter to the hotel’s human resource director, Ful-
lenkamp. (Jt. Exh. 2–0010.) However, I find this rather odd, as
Jones well knew that Stokes was representing the Respondent
for purposes of negotiations, and since Stokes and indicated 2
months earlier the Respondent’s interest in making significant
changes in the existing contract. In any event, it was about this
time that the Union arranged for International Union Vice Pres-
ident Sawyer to become involved in these negotiations.
On December 23, 2008, Stokes sent Jones a letter offering to
“continue negotiations in earnest,” and suggesting the dates of
January 2 and 7, 2009. Further, he gave specific times when
these negotiations could be conducted and indicated the differ-
ence in the time zones. (Jt. Exh. 2–0013.) Counsel for the
General Counsel contends that this demonstrates Stokes’ intent
to negotiate by telephone. This may well be true, as there
would be no other reason to list the parties’ respective time
zones. However, the letter certainly contains no demand or
insistence that negotiations be conducted exclusively by tele-
phone.
It should be noted that as part of her argument that the Re-
spondent was bargaining in bad faith, counsel for the General
Counsel contends that throughout the course of negotiations,
the Respondent made demands that the parties negotiate by
telephone, as opposed to in person negotiations. While I will
deal with each of these instances as they occurred, I will state
preliminarily now that I do not believe this to be the case. Alt-
hough it is accurate that the Respondent’s counsel often sug-
gested telephone meetings, or video conference meetings, as an
alternative to face to face meetings, these were never demands,
but, rather, simply suggestions. As someone who made eight
trips to Anchorage in the course of hearing this case, I can take
administrative notice that flying from the lower 48 States to
Alaska is a long and expensive process.
As Stokes heard nothing back from the Union, he sent Jones
an email on January 8, 2009, expressing frustration with the
Union’s failure to furnish him with the information that he had
requested, and with the Union’s failure to respond to his sug-
gested dates for negotiations. Stokes even suggests that the
Union’s failure to respond constitutes bad-faith bargaining and
demands the information requested and a response to the Re-
spondent’s meeting inquiry by January 13, 2009, or legal action
will be pursued. (Jt. Exh. 2–0015.) While this may constitute
“puffing” on the part of Stokes, I do sense, both from his testi-
mony at trial and this email, a sense of frustration on the part of
the Respondent. Stokes stated in the email, as he did many
times early in the negotiations, that it was the Respondent’s
“sincere desire to reach agreement with the Union by February
28, 2008, the expiration of the collective bargaining agree-
ment.”
This email did finally get a response from Jones, who re-
sponded by email on January 21, 2009, to say simply that,
“Rick Sawyer, International Regional Vice President will now
be the Lead Negotiator,” and all correspondence should be sent
to him. Jones added that he would remain an “intricate mem-
ber” during the “upcoming negotiations.” (Jt. Exh. 2–0017.)
Thereafter, on February 6, 2009, Sawyer and Stokes had a con-
ference call in which they introduced themselves and discussed
the status of negotiations.
By email letter to Sawyer dated February 17, 2009, Stokes
recapped the chronology of the parties’ dealings to date, and
requested “telephonic sessions of collective bargaining negotia-
tions . . . as soon as possible,” as well as a response to the in-
formation request. He gave Sawyer a number of proposed
dates for bargaining in mid to late February. (Jt. Exh. 2–0018.)
While certainly this letter was self-serving, since Stokes recited
his view of the chronology of events, never the less, it does
SHERATON ANCHORAGE 821
once again offer some insight into his frustration with not being
able to get more accomplished. Sawyer responded in a lengthy
email dated February 22. In that response, he questioned why
the Respondent was requesting certain information about the
Health and Welfare Trust Plan, when the information could
easily be obtained from Susan DiMaggio, the hotel’s director,
who was an employer trustee of the plan and had access to such
information. Further, he responded that the Union wanted to
conduct negotiations in person at the hotel, in order to allow the
participation of the employee negotiating committee, as well as
its wider union membership. Finally, he asked Stokes to pro-
pose dates where the parties could meet and negotiate in An-
chorage. (Jt. Exh. 2–0021.)
Counsel for the General Counsel continues to argue that the
Respondent was only willing to negotiate by telephone. How-
ever, there is no evidence to support this assertion. As is con-
firmed in an email from Hubbard to Sawyer, dated February 26,
2009, the parties did agree to have a telephone conference on
the following day, February 27, on the status of the negotia-
tions, but I see no indication that Stokes was insisting on only
telephone negotiations. (Jt. Exh. 2–0025.) It is obvious that as
the existing contract was by its terms set to expire as of 12:01
a.m. on March 1, 2009, that time was of the essence, and at that
late date a telephone conference would certainly seem to make
the most sense. That telephone conference call was apparently
successful in that the parties agreed to extend the existing con-
tract for 30 days. In an email letter from Stokes to Sawyer
dated March 2, 2009, Stokes confirmed the agreement to extend
the contract to March 30, 2009, and he remarked that as the
delay in finalizing a new contract was through no fault of the
Employer, that “any possible issue of retroactivity is an open
subject for collective bargaining negotiations.” Further, Stokes
confirmed his offer of the following proposed negotiation dates,
“for any form of negotiations with which the parties can agree,
either telephonically or in person: . . . . March 9, 10, 12, 26,
afternoon of 27th, April 2, afternoon of 3rd, 8, 9, afternoon of
10th, 13, 14, 21, 22, 23, afternoon of 24th, 30.” (Jt. Exh. 2–
0026.) Sawyer, thereafter, agreed to the April dates.
In an email addressed to Sawyer dated March 16, 2009,
Hubbard made another pitch for negotiations by “teleconfer-
ence or videoconference, [as] saving time and money for eve-
ryone, including yourself!” (Jt. Exh. 2–0027.) However, there
was no insistence on such a method of negotiating. While
Sawyer responded by email on March 26 and indicated that he
was “look[ing] forward to meeting [with the Respondent] in
Anchorage,” it is unclear to me just what specific dates he be-
lieved the parties intended to meet. (Jt. Exh. 2–0027.) Further,
it does appear that he was expecting to receive a written pro-
posal from the Respondent prior to this meeting, which expec-
tation was similarly shared by the Respondent’s counsel who
believed a union proposal was forthcoming. (Jt. Exhs. 2–0027
and 2–0030.)
It may have been April 3, 2009, that was originally the date
the parties had agreed to meet in Anchorage, as that is what
Theodore Lu said in an email to Sawyer dated March 30, 2009.
Lu was an attorney in Stokes’ firm working on the Sheraton
negotiations. Obviously the plans had changed, as in that
communication Lu specifically states that, “I am writing to
confirm that we will not be in Anchorage on Friday, April 3,
2009, to negotiate.” Further, he complains that, “We have yet
to receive a complete proposal from you, despite our continuing
requests for one since meeting with Marvin Jones and Daniel
Esparza on October 27, 2008, in Anchorage. Even if we re-
ceived a complete proposal from you today, we would not have
enough time to quantify the proposal for an April 3rd negotia-
tion.” He indicated that the Respondent was prepared to nego-
tiate in Anchorage on April 8–9, 2009, “IF we receive a com-
plete proposal from you with sufficient time for us to quantify
the proposal.” (Emphasis as in original.) In this email, Lu
raised a concern that the Respondent had over a schism that
existed between the two component parts of the International
Union, “UNITE and HERE,” and whether the Respondent was
negotiating with “the legal entity representing the employees of
the Sheraton Anchorage.” (Jt. Exh. 2–0030.)
In a detailed letter response dated April 2, 2009, Sawyer ad-
dressed Stokes’ concerns about the so called schism. He as-
sured Stokes that the Respondent’s collective-bargaining rela-
tionship remained with Union Local 878, which was an affiliate
of the UNITE HERE!, International Union. It was that Local
Union that continued to be the “collective bargaining repre-
sentative of workers employed by the Anchorage Sheraton
Hotel.” Sawyer suggested that any further questions that
Stokes had on this subject should be addressed to the Interna-
tional Union president, John Wilhelm. (Jt. Exh. 2–0039.)
While Stokes did continue to raise this issue from time to time
during negotiations, I do not believe that it served as a basis to
protract, distract, or delay the negotiations, which largely went
forward despite Stokes’ stated concerns. Also, this was not
some frivolous matter merely fabricated by Stokes. I can clear-
ly take administrative notice of the seriousness of this national
schism that developed between the two components of the
UNITE HERE!, International Union. Before the two compo-
nents ultimately “divorced” and went their separate ways, much
money and time was spent with the two components litigating
against each other in court and on the pages of the national and
union press in what commentators referred to as a “Civil War.”
It should be noted that working with the Union in Anchorage
was organizer Jessica Lawson, an employee of the International
Union. She had prior experience assisting with other negotia-
tions. Lawson, along with Jones and Esparza, recruited mem-
bers of the Union to serve on the employee negotiating commit-
tee. It became her practice to meet with hotel employees dur-
ing their lunchtimes to discuss their concerns and ideas for the
new contract.
On April 1, 2009, Sawyer sent the Respondent the Union’s
first proposal. The proposal was three pages in length and in-
cluded: a 3-percent annual wage increase for tipped employees;
annual wage increases for nontipped employees starting at 4
percent in the first year of the contract and declining to 2 per-
cent by the last year; increased health and welfare and pension
contributions; increased sick leave pay: and raising the tipped
employees’ tip guarantee from 13 to 15 percent. It also con-
tained new language related to the free meal, for which the
existing contract already provided. The new language read:
“The Employer will provide a hot and wholesome meal.” The
union proposal contained a 4-year term. (Jt. Exhs. 31–35.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
Stokes replied that the Respondent would “consider and begin
quantifying it.” (Jt. Exh. 31.)
The Union, apparently believing that negotiations would
commence on April 8, made plans for those negotiations. Law-
son got commitments from various members of the employee
bargaining committee and she distributed flyers at the hotel
announcing that negotiations were scheduled to begin. Howev-
er, that did not happen.
Two days before negotiations were scheduled to begin,
Stokes emailed Sawyer to say that the Respondent “had not
completed [its] detailed quantification” of the Union’s pro-
posal, and that, therefore, it would not be “productive nor fis-
cally responsible” for the parties to meet. According to this
April 6 email from Stokes, the Respondent was “unable” to
meet with the Union until it had quantified the union proposal
in detail and “sent [its] counter proposal.” Stokes proposed that
the parties schedule 3 full days for negotiations “after” each
side has had an opportunity “to review, quantify and prepare
negotiation positions on the proposals presented.” Further, he
once again raised the issue of the union schism and requested
proof that the Union, Local 878, “has not changed, split or in
any way failed to be the same legal entity” that was the repre-
sentative of the hotel employees. Finally, he offered to extend
the existing collective-bargaining agreement through April 28,
2009. (Jt. Exhs. 2–0041–0042.)
On April 9, 2009, the Respondent sent the Union its first
written proposal. (GC Exh. 31.) This was a rewritten, refor-
matted document with an “Arabic” numeral style, which Stokes
had previously indicated was his preference since it was alleg-
edly easier for the employees to understand than the old “Ro-
man” numeral style. Counsel for the General Counsel makes
much of the fact that the Respondent had not indicated and
highlighted what changes, deletions, and additions the Re-
spondent was proposing to the existing contract. According to
the testimony of Jessica Lawson, as a result she had to spend
over 50 hours creating a document that reflected the changes
made to the old contract. (GC Exh. 32.) Counsel for the Gen-
eral Counsel is highly critical of this alleged unusual way in
which the Respondent had presented its proposed contract.
Frankly, I do not see that it was a major problem for the Union,
and it was certainly not unlawful. If the Employer preferred to
present its proposal as a new document, which did not specifi-
cally note the changes from the old agreement, that was its
right. While the Union may have been somewhat frustrated by
this approach, and it may have caused Lawson to do extra work
so that the Union would be able to clearly and easily see each
and every change made by the Respondent, this certainly does
not rise to the level of an unfair labor practice.
The Respondent’s proposal did not contain a specific wage
or benefit package, but merely indicated “To Be Negotiated.”
The proposal eliminated the employees’ paid lunchbreak,
which under the existing contract required the hotel to provide
the employees with a meal and a paid 30-minute period in
which to eat it. The Respondent’s proposal increased the num-
ber of rooms that the hotel’s housekeepers were expected to
clean in a day from 15 to 18. It eliminated sick pay for part-
time employees, reduced holidays from 9 to 7, increased new
employees’ probationary period from 90 to 120 days, and re-
duced from 3 to 2 days the number of days of unapproved ab-
sences that would cause an employee to lose seniority. Further,
the proposal deleted and/or changed some of the job classifica-
tions as listed in the current contract and replaced them with the
job titles that the Respondent had been using since it assumed
operation of the hotel in December 2006. (GC Exh. 31 & 32.)
In her posthearing brief, counsel for the General Counsel
characterizes certain of the Respondent’s proposals, as they
affected the Union’s representational abilities, to be “draconi-
an.” Some of these included: reducing the number of shop
stewards from four to two per shift; compressing the time in
which to file a step two grievance from 7 days to 24 hours;
limiting employees’ remedies to final and binding arbitrations,
as opposed to recourse to Federal agencies; requiring the Re-
spondent’s prior approval before union representatives were
allowed access to the hotel; banning union buttons, unless ap-
proved by the Respondent; and with dues checkoff “To Be
Negotiated.” (GC Exh. 32.)
According to counsel for the Respondent in his posthearing
brief, “More than any other factor, the bad economy shaped the
positions taken by Remington in its April 9 proposal, and
shaped the positions taken thereafter by both parties at the bar-
gaining table over the ten (10) subsequent face to face bargain-
ing sessions, from June 2009 through March 2010.”10 Don
Denzin, the Respondent’s former senior vice present of human
resources, testified that any contract must realistically reflect
the economics of the times. Regarding the Respondent’s pro-
posals, he testified that the Employer “understood that there
were some takeaways associated with [its] position.”
Based on Stokes’ schedule, Lu proposed having the parties
meet in Anchorage on May 18 and 19. The parties already had
an arbitration scheduled for the first of those dates, but Lu sug-
gested that they forgo the arbitration as “our time in Anchorage
would be better served if we met to discuss the collective bar-
gaining agreement. . . . It is simply our stance that we can ac-
complish more by meeting to negotiate rather than arbitrate.”
(Jt. Exh. 2–0044.) Although Lu attempted to obtain Sawyer’s
agreement to postpone the arbitration and to meet in Anchorage
and bargain on those two dates, confusion reigned between the
parties and ultimately Sawyer informed Lu that he was not
available on those dates, but he agreed to some dates in June.
The Respondent wished to have the negotiations conducted in
Seattle to save the expense of flying all the way to Anchorage,
however, the Union was adamant that only face-to-face nego-
tiations in Anchorage would suffice. Ultimately, the Respond-
ent acquiesced and agreed to meet in Anchorage for negotia-
tions on June 9–12, 2009. (Jt. Exhs. 2–0042, 0049, 0050–0051,
0054, 0055, 0056, 0057, 0058, 0060, 0061, 0064, 0065, 0066,
and 0067.) Finally, although not entirely clear to me, at some
point the parties agreed to extend the contract until the end of
May. Subsequently, they agreed to further extend the current
agreement through July 2009.
On May 22, 2009, Lu sent Sawyer an email in anticipation of
their June negotiations in Anchorage, asking that the Union

10 It should be noted that as I compute the total number of face-to-
face bargaining sessions between the parties, there were a total of 10,
including the two sessions in October 2008.
SHERATON ANCHORAGE 823
advise the Employer as soon as possible of any “information,
demands, or positions” they intended to take. Further, Lu said,
“This will help us fully prepare for the face to face negotia-
tions. We do not want to be Hilton11 and would like to negoti-
ate as efficiently as possible.” (Jt. Exh. 2–0068.)
The union bargaining team for the June negotiations was
comprised of Sawyer, Lawson, Jones, Esparza, and various
members of the employee negotiating committee. On the Em-
ployer’s side of the bargaining table were Stokes, Stoller, Den-
zin, and Wolling. With the exception of Attorney Stokes,
whose firm was in Atlanta, the other members of the Employ-
er’s team were corporate officials from Dallas. Counsel for the
General Counsel suggests in her brief that this was somehow
suspect as for the most part the local hotel officials did not
participate. However, I fail to see anything sinister or unusual
about this, as the principal issues that separated the parties were
economic, and, therefore, the officials from Dallas were just as
capable, if not more so, of holding and protecting the economic
“bottom-line” than were the hotel managers. Further, counsel
believes that it was highly unusual for an employer bargaining
team not to designate someone to take detailed notes of the
meetings. Once again, I fail to see anything suspect about this
approach. Negotiators have different approaches to the art of
bargaining, and there is no right or wrong way to engage in
bargaining, and certainly there is nothing unlawful about a
party failing to take detailed notes.
In any event, very detailed notes were taken on behalf of the
Union by Lawson, who testified about them at length. After
observing the lengthy examination and cross-examination of
Lawson, as well as her almost constant presence in the hearing
room over approximately 40 days of trial, I conclude that she
was a generally credible witness. Further, I believe that for the
most part her notes were accurate, or at least as accurate as she
was able to make them. That having been said, I am mindful of
the fact that Lawson was employed by the International Union,
that her job in Anchorage was to attempt to help the Union
obtain a favorable contract for the employees from the Employ-
er, and that she had a very strong prounion bias. Obviously,
this could to some extent color her reflections and testimony.
Still, this intelligent, articulate, self-confident young woman
struck me as someone who would not deliberately and know-
ingly fabricate her testimony.
The parties met in Anchorage for 7 hours on June 9. As was
to be expected, Stokes and Sawyer were the principal speakers
on behalf of their respective sides. The parties began the pro-
cess of reviewing the Respondent’s proposal. Counsel for the
General Counsel characterizes the progress as “slow,” which
seems to be accurate. However, her contention in her posthear-
ing brief that Stokes “voraciously consumed valuable bargain-
ing time” as he “soliloquized” over his own personal philoso-
phy of contract negotiations was simply the opinion of counsel.
For the reasons that I mentioned earlier in detail, I did not find
Stokes’ style of negotiating and his method of presenting pro-
posals or positions to constitute obstructive behavior or an ef-
fort on his part to prolong or frustrate the bargaining process.

11 This reference was to the Hilton Anchorage hotel where the nego-
tiations between the Union and the Hilton had broken down.
From her testimony it was clear that Jessica Lawson felt other-
wise, but her view in this regard is that of an advocate.
Stokes spent time discussing the Colonial Williamsburg con-
tract, which he argued was highly “readable,” and could be
used as a guide for the negotiations at hand, and further spoke
about the simple numbering system that the Respondent had
used in its contract proposal. Stokes talked about a number of
subjects, which although somewhat removed from the specifics
of the Respondent’s contract proposal were at least tangentially
connected. These included the history of hiring halls, the plight
of immigrant workers, and the practice, which he considered
unjust, of limiting the banquet tip pool only to banquet servers.
Once again, although counsel for the General Counsel accuses
Stokes of engaging in a “filibuster,” I do not view it that way.
Counsel for the General Counsel correctly points out in her
brief that there were no discussions of wages and benefits dur-
ing this bargaining session, as the Respondent’s proposal was
silent as to these subjects. Stokes merely said that the Re-
spondent would be presenting a package proposal of wages and
benefits in the future. Two areas where the parties did make
some limited progress were on the Respondent’s proposal to
eliminate a contractual provision requiring the Respondent to
notify and consult with the Union before subcontracting unit
work, and to pay affected employees in lieu of such notice.
Sawyer informed Stokes that he was opposed to eliminating
that language, and Stokes agreed that the Union had the right to
this information. Also, Stokes agreed to reconsider the Re-
spondent’s proposal to reduce the number of absences that
would result in a loss of union seniority. However, these were
clearly not major items.
It is important to note that, as stressed in the Respondent’s
posthearing brief, the key economic issues raised in Reming-
ton’s proposal were clear and unambiguous. The proposal
called for: the elimination of the paid 30-minute meal break,
and adding the requirement that employees pay $1 for any meal
provided by the Employer; a reduction in the number of paid
sick days; an increase in the housekeepers’ room quota, from
15 to 18 (ultimately reduced to 17); a withdrawal from the un-
ion health insurance plan (medical coverage), and replacement
by an Employer health insurance plan, which would permit the
Employer to shop annually for a better plan; and paid holidays
reduced to eight (8).
On June 10, the parties met again. They discussed the Re-
spondent’s proposal to eliminate the 30 minute paid lunch-
break, which the Employer had been providing. This was an
important matter to the Respondent as part of its effort to lower
costs in that difficult economic climate. Stokes explained re-
peatedly throughout negotiations that it had long been the Re-
spondent’s policy at its various hotel properties that it did not
pay for time not spent working. Sawyer’s position was that the
paid lunch period was part of the unit employees’ total remu-
neration, and that if eliminated, the employees would expect
something to make up for its loss. Further, Sawyer mentioned
that in Anchorage, the majority of the downtown hotels did, in
fact, pay for their employees’ meal breaks. Stokes responded
that it was his understanding that many employees actually took
longer than their permitted 30 minutes for lunch. This state-
ment, not surprisingly, resulted in the employees in the negoti-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
ating committee and some employee observes becoming rather
upset.
In the Respondent’s proposal, the language previously
providing for health and welfare benefits had been deleted,
which Stokes said meant that this provision would need to be
negotiated. Stokes suggested that the new contract actually
contain the specifics of the medical coverage so that employees
could use the contract to reference such information as: deduct-
ibles, conditions covered, employee copays, and plan maxi-
mums. Stokes informed all that this was the way that the Colo-
nial Williamsburg agreement handled the issue. However,
Sawyer was not keen on the idea, telling Stokes that such in-
formation would be readily available in the standard medical
plan booklet, and, as benefits changed, it made no sense to put
specific information in the contract that could soon be out of
date.
The parties also discussed the pension benefit provisions, as
the Respondent had stricken the old pension language from its
proposed agreement. Stokes did not make a specific proposal
regarding a replacement for the existing pension, but did say
that he felt the new agreement should specifically list the de-
fined benefit amounts for retirees. As he had reacted with
Stokes’ medical insurance proposal, Sawyer was negatively
inclined to the offer of having specific pension amounts listed
in the contract, since pension trust booklets and quarterly re-
ports were already available for the employees to review.
Another issue discussed was whether employee payroll
checks could include more detail regarding deductions as re-
quested by the Union, and whether those checks could reflect
the Respondent’s contribution to workers’ pension and health
plans as requested by Stokes. There was also considerable
discussion about the Respondent’s proposal containing new job
titles, which were apparently those titles that Remington had
been using since it started operating the hotel in December
2006. Stokes took the position that the new job titles simply
reflected what kind of work the employees actually performed.
Sawyer requested that Stokes provide copies of the job descrip-
tions that were envisioned by its new job titles, and Stokes
promised to do so.
Near the end of the day’s negotiations, Sawyer for the first
time alerted the Respondent’s bargaining team that he had just
learned that the actuary for the existing pension fund had erred
in calculating the cost of the Respondent’s pension contribution
for 2009. He provided the revised figures, which were signifi-
cantly higher. The hotel human resource director was in the
room at the time and confirmed that these revised pension con-
tribution numbers had only just been released. As they re-
cessed for the day, the parties agreed that having been through
the Employer’s proposal, that they would review the Union’s
proposal the following day.
On June 11, Sawyer went through the Union’s proposal.
Counsel for the General Counsel argues in her brief that this
task was made easier because, unlike the Respondent’s pro-
posal, the Union’s proposal contained “bolding” to indicate a
change from, or addition to, the existing contract, and that lan-
guage proposed to be removed was simply struck out. In any
event, the parties discussed various language changes in the
Union’s proposal, for example the addition of the words “hot
and wholesome” to describe the type of lunch that the Employ-
er was required to provide to the employee. Jones mentioned
that in the past there had been problems with the quality of the
food, as the reason why the language was added. Further, the
parties discussed the Union’s request that the amount of sick
pay be raised. Sawyer argued that sick pay had not been in-
creased significantly in the past 5 years, and he request that
Stokes provide figures on the amount of sick pay that had actu-
ally been paid out during the last year. Stokes agreed to do so.
The parties discussed the Union’s wage proposal, with
Stokes questioning whether the 2 to 1 ratio on proposed wage
increases for the nontipped vs. tipped employees was a change
from the past practice. Jones indicated that it was not. Appar-
ently there was no further discussion on the Union’s wage pro-
posal. However, the parties once again discussed the issue of
job classifications. Stokes provided a list of job classifications,
some of which were jobs no longer performed at the hotel.
Sawyer indicated that the union negotiators needed to review
the list, and the parties agreed to caucus to discuss their respec-
tive proposals. Although the hope was expressed that the par-
ties would resume negotiations that day, in fact, they recessed
at about 10 a.m. and did not reconvene until the following day.
When the bargaining reconvened on June 12, Human Re-
source Director Fullenkamp joined the management team. The
parties discussed drug testing, sick leave, and vacations. At
some point, Stokes asked Sawyer to step outside, and when the
two were alone accused the housekeeping staff of stealing
company time by standing around the timeclock for extended
periods of time before clocking out at the end of their shifts.
Once back at the bargaining table, Stokes raised this issue for
all to hear. Stokes also accused employees of taking longer
lunchbreaks then permitted as they were not timed. Sawyer
reminded Stokes that it was the industry practice in Anchorage
for the hotels to pay their employees for meal breaks, and he
defended the unit employees against Stokes’ accusations. Fur-
ther, Sawyer mentioned that some employees combined their
lunch and breaktimes, and so it might appear to management
that they were extending their lunchtime. Later, there was
some discussion about employee uniforms, and the parties then
recessed.
In July 2009, the Respondent appointed a new hotel general
manager, Dennis Artiles, to replace Susan DiMaggio. Artiles
then hired Eduardo Canes as the hotel director of operations. It
is counsel for the General Counsel’s contention that the Re-
spondent hired Artiles and Canes because they were antiunion
and in an effort to clean house and remove the Union from the
property. At least one witness did refer to Artiles as a “clean-
ing GM,” meaning that he made the hotel’s problems go away.
This, the General Counsel contends, included the Union. Just
as with DiMaggio, Artiles was not directly involved in the col-
lective-bargaining negotiations.
On July 17, 2009, the Respondent presented the Union with
a revised contract proposal. (GC Exh. 38.) It appears that the
major change reflected in this proposal was the withdrawal
from the Taft-Hartley Health and Welfare Plan, as well as from
the Pension Plan and Legal Fund Plan. In place of the Pension
Plan, the Respondent proposed a stand-alone 401(k) plan with
100-percent Employer matching of employee contributions up
SHERATON ANCHORAGE 825
to 3 percent, and 50-percent matching of employee contribu-
tions between 3 and 5 percent. The pension proposal provided
no guarantee beyond a single year’s coverage and accruals
under the plan, with the Employer having the unilateral right to
change the plan’s benefits each year. Further, the Respondent’s
new proposal called for replacing the unit employees’ jointly
administered health and welfare trust fund with its corporate-
wide CIGNA preferred-provider type plan, which also gave the
Employer the right to unilaterally change plans every year at its
sole discretion. (GC Exh. 38, pp. 29–30, art. 31–32.)
The new contract proposal from the Respondent also con-
tained a counterproposal to the Union’s wage increase proposal.
In his posthearing brief, counsel for the Respondent indicated
this was a wage freeze for the first year of the contract. But,
counsel for the General Counsel in her posthearing brief refers
to this proposal as a 2-percent increase. Both counsels cite to
the same exhibit, a wage rate attachment to the Respondent’s
July 17, 2009 proposal, to support their contentions. (GC Exh.
38, at Exh. 1.) While the document does appear to provide for
a 2-percent wage rate increase, based on the respective posi-
tions of the parties as they proceeded to negotiate, I believe the
Respondent’s counterproposal was actually a wage freeze.
Significantly, the Respondent’s proposal of July 17 required
that room attendants clean 17 rooms per 8 hour shift. (GC Exh.
38, art. 9, sec. 51.) This was obviously more than the 15 rooms
as provided for in the existing contract, but 1 less than the 18
rooms that the Respondent had originally been proposing. The
proposal also contained a subcontracting provision, which did
not require notice to the Union before doing so.
The July 17 proposal was accompanied by an email from Lu
to Sawyer confirming that the parties would meet in Anchorage
on July 28 and 29, 2009. (Jt. Exh. 2–0076.) However, thereaf-
ter, Lu and Sawyer got into a heated exchange of emails regard-
ing Sawyer’s unavailability to meet on one of those dates. (Jt.
Exhs. 2–0080–0085.) Soon after, both Sawyer and Stokes hap-
pened to be in Denver on other business at the same time and
they decided to meet. While Sawyer apparently had hoped that
the meeting might result in a breakthrough in negotiations, it
turned out to be primarily a social gathering. In any event,
following the meeting in Denver, Sawyer agreed to meet in
Anchorage for negotiations on both dates later in July. (Jt. Exh.
2–0085.)
For the July negotiations, the Union’s regular team was pre-
sent. However, only Stokes appeared on behalf of the Re-
spondent. Sawyer testified that it was his goal to reach tenta-
tive agreements (TAs) on as many items as possible. The par-
ties met on July 28 and Stokes agreed to Sawyer’s suggestion
that a part of each day be devoted to labeling as tentatively
agreed upon those items where the parties were able to agree.
They went through the Respondent’s latest proposal, but an
effort was made to put aside the more contentious issues, such
as subcontracting, the ban on wearing union buttons, and eco-
nomic issues such as the number of rooms to be cleaned by the
housekeepers. The hope was that they could reach tentative
agreements on less contentious issues. Interestingly, Stokes
made references to discussing the original Taft Hartley Pension
Plan, which the Respondent’s July contact offer had proposed
eliminating entirely and replacing it with a 401(k) plan. The
parties delayed discussing that as well. However, they did
discuss the Respondent’s health and welfare proposal, with
Sawyer relaying concern over the unit employees’ ability to pay
the health insurance premiums as provided for under the Re-
spondent’s proposed health benefits.
Apparently Stokes, as was his habit, spoke at length on a
number of subjects, including the need for a final and binding
arbitration clause to the exclusion of other remedies, simplify-
ing the contract with use of the Arabic numbering system, and a
suggestion that hotel guests be provided with a breakdown of
how much of a gratuity charge goes to the hotel as opposed to
the employees. Sawyer was not impressed with this use of time
by Stokes and asked him to “move on.” However, counsel for
the General Counsel concedes that there was “some progress”
made that day with the Union agreeing to lower the amount of
sick pay as proposed by the Respondent, and with Stokes agree-
ing to protect employee seniority and reinstatement rights.
The parties met the following day, July 29. The Union made
a counterproposal on drug testing, and Stokes promised to get
the Union certain information regarding the Employer’s pro-
posed CIGNA health plan. Unfortunately, Stokes took 1–1/2
conference call, which reduced the parties negotiating time.
They did not have time to summarize their tentative agree-
ments, which they had hoped to do. Stokes offered to draft a
document that would show the respective position of the parties
regarding various contractual issues, and would show those
areas where they had reached tentative agreement. Just before
recessing, the parties agreed to a 1 month extension of the cur-
rent contract, until August 31.
On August 21, 2009, the Respondent sent the Union its “fi-
nal proposal.” The cover letter accompanying the proposal
stated, “Please understand that this is the employer’s final posi-
tion. Considering the current economic climate, any further
concessions by the employer would be financially untenable.”
Further, the letter indicated that enclosed were two drafts, one
showing the tracked changes made to the July 29 proposal, and
a “clean” version capable of execution.12 It is important to note
that even though the letter stated that this was the Respondent’s
final proposal, Stokes, the signed author of the letter, said that
the Respondent was “open to discussing the proposal . . . via
phone, email, text message, teleconference, video conference,
Skype, or through any other medium [the Union would]
choose.” (R. Exh. 58.)
Both the “clean” version (R. Exh. 69) and the “annotated”
version (R. Exh. 81) of the Respondent’s final proposal are in
the record.
There is some disagreement regarding whether Sawyer ever
receive d a copy of the cover letter (R. Exh. 58), along with the
Respondent’s final proposal. Sawyer says he did not receive
the cover letter. However, I am more inclined to accept the
testimony of Lu that he did send it to Sawyer. I accept Lu’s
testimony in this regard as being more accurate because it was
highly detailed. He testified that he placed in a FedEx envelope

12 Although the cover letter makes reference to a July 29 proposal, I
assume that Stokes made a mistake and had intended to refer to the
Respondent’s proposal of July 17. The date of July 29 was noteworthy
only because the parties had negotiated on that day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
addressed to Sawyer the two copies of the final proposal, plus
two copies of the cover letter. Lu was the actual typist and
preparer of the cover letter, which was signed by Stokes and
prepared at his direction. He described in minute detail how he
prepared and sent the various documents by FedEx, including
the cover letter, to Sawyer. (R. Exh. 80.) As Sawyer could
have easily forgotten the cover letter, since it was accompanied
by the more important final proposal, I conclude that he did in
fact receive the cover letter.13
It should be noted that the August 21 final proposal from the
Respondent dropped the Respondent’s previous proposal to
switch from the Traft-Hartley Pension Trust to a stand-alone
401(k) plan. In his testimony, Stokes characterized this change
as being a “major concession.” The Respondent had “looked at
the numbers” and realized that withdrawing from the Taft-
Hartley Pension Trust would cost the Respondent more than a
401(k) plan would save.
On August 28, 2009, Stokes and Sawyer had a “brief tele-
phone conversation,” as characterized by Sawyer in a letter of
September 11. In that letter, Sawyer was answering Stokes’
earlier request that the Union respond to the Employer’s final
proposal before any additional face-to-face negotiation sessions
were scheduled for Anchorage. Sawyer agreed to do so as to
“minor matters,” but only if the Respondent would agree to a
contract extension, and would agree to future bargaining dates
in Anchorage in October 2009. (Jt. Exh. 2–0092.) The last
contract extension had expired on August 31.
In a letter dated September 16, Stokes advised Sawyer that
the contract had expired as no extension had been agreed upon.
Further, he advised Sawyer that he could not commit to negoti-
ation dates in October, as he had a trial coming up, but as soon
as the trial dates were set, that he would advise Sawyer of his
“availability to bargain in October.” (Jt. Exh. 2–0094.) It is
very important to note that even though the Respondent had
been referring to its proposal of August 21, 2009, as its “final
proposal,” the Respondent still seemed willing to bargain fur-
ther.
In a letter dated September 21, 2009, Stokes complains to
Sawyer that the Union still had not reviewed the Respondent’s
last offer and stated the Union’s position to it. He once again
tells Sawyer that he cannot presently commit to negotiation
dates for Anchorage in October, but that he would be available
to discuss any issues telephonically or by teleconference. (Jt.
Exh. 2–0096.) In response, Sawyer sends an undated letter that
makes no mention whatsoever of the request for phone com-
munication. Rather, he complains that the Respondent is “ap-
parently unable or unwilling at this time to commit to agree to
meet with [the Union] to engage in face to face collective bar-
gaining any time in October.” Further, the letter states that,
“we will respond to your last document once the committee has
had ample opportunity to review it.” (Jt. Exh. 2–0098.)
Upon reading and analyzing the various communications
sent during this period of time, I am in agreement with counsel
for the Respondent who stated in his posthearing brief that the

13 As with the Postal Service, I will assume that a letter properly
placed with FedEx for delivery will be received at its intended destina-
tion.
Respondent never said it was “unwilling” to engage in face-to-
face negotiations, merely that Stokes was unavailable to meet
in October. Simply offering the Union an opportunity to bar-
gain by other means, such as by telephone, teleconference, or
videoconference did not mean the Respondent was refusing to
meet face to face in Anchorage. (In fact, subsequently the Re-
spondent did further bargain in Anchorage.) I find Sawyer’s
statements to the contrary to be inaccurate and self-serving.
Away from the bargaining table there were events occurring
that also must be discussed. The Respondent employs engi-
neers at the hotel who are responsible for maintenance and
mechanical issues. Prior to July 2009, the Respondent also
employed security guards who worked at the hotel. The guards
assisted guests to their rooms, ensured the safety of the hotel,
and dealt with homeless people on the property. During emer-
gencies all employees were expected to assist security. How-
ever, beginning in July 2009, the Respondent, without notice to
or bargaining with the Union, began to reduce its security
guards’ hours and assigned the duties that had been performed
by the guards to its engineers. This change was announced by
the chief of engineering, Ed Emmsley Jr., who told the engi-
neers that when there were no security guards on a particular
shift that they would have to perform that duty. In September
2009, the entire security force was laid off and the security
function in its entirety was performed by the engineers, in addi-
tion to performing their regular engineering duties. However,
the engineers were never given any training in security work.
In any event, this new system did not last long as in mid-
October a serious incident occurred at the hotel that involved an
intruder with a gun. The Respondent then proceeded to bring
back trained security guards. There is no indication that the
Respondent ever raised the issue of security guards or attempt-
ed to bargain with the Union over the transfer of security guard
duties to the engineers.
The Respondent’s hotel bellmen carry guest luggage, deliver
faxes, valet park cars, and provide various concierge services.
Prior to August 2009, they also drove the hotel’s courtesy van.
The van functioned as a hotel shuttle, operating within approx-
imately 1 mile of the hotel, primarily in the downtown area of
Anchorage. Depending on the season, van driving duty com-
prised a significant portion of the workday for the bellmen.
The busy season for the bellmen was the tourist season, which
in Alaska lasts from mid-May through mid-September.
Driving the courtesy van was considered a perk, since it
permitted the bellmen to get off their feet, take a break, and be
away from the confines of the hotel lobby. However, its prin-
cipal benefit was that it constituted an excellent source of tips.
Bellman Troy Prichacham testified that his tips per day from
driving in the winter months would be between $18 and $25
and in the summer months between $40 and $45.
On August 17, 2009, the Respondent’s sales director, Lib-
brecht, ordered the bellmen to stop driving the van. The Re-
spondent had subcontracted the van driving duties to a compa-
ny called Valentino Limousine Service (VLS). Subsequently,
VLS established a desk inside the hotel lobby, and the bellmen
were ordered to promote VLS services to the hotel guests, and
to keep the hotel entryway clear for VLS vehicles. On occa-
sion, when the bellmen are very busy, VLS drivers arriving
SHERATON ANCHORAGE 827
with hotel guests have been observed loading up the luggage
carts and transferring luggage to the guests’ rooms. Some
bellmen have been working for VLS as drivers, when not on
duty with the hotel.
It is undisputed that the Respondent never raised the issue
with the Union of subcontracting the bellmen’s van driving
duties. The Union was provided no notice by the Respondent
at any time of the transfer of the work to VLS. However, in
defense of its action, the Respondent relies on the terms of the
then existing collective-bargaining agreement, which the parties
extended through August 31, 2009. Article IX, section 8 of that
contract provides that where “contracting out is reasonably
expected to result in a reduction in cost, increase efficiency in
the delivery of services to the public, or otherwise benefit the
Employer, and it is reasonably expected to result in the dis-
placement of any regular employees, the Employer shall first
notify the Union in writing of the proposed action.” Further,
the clause goes on to state that the “Union will be invited and
encouraged to meet and confer with the Employer at reasonable
times regarding the proposed action, and no final action shall be
taken by the Employer within thirty (30) day of its notice.”
(GC Exh. 5.)
The Respondent argues that under the terms of the above
clause, it was only obligated to notify and bargain with the
Union regarding the subcontracting of driving duties if the sub-
contracting would result in the displacement of any of the bell-
men. The Respondent contends that as no bellmen were dis-
placed, there was no duty to notify or bargain with the Union.
The testimony of bellmen Troy Prichacharn is relied on by
counsel for the Respondent to support his contentions.
Prichacharn testified as to the number of bellmen employed by
the hotel from May 2009 through November 2009. Although
that testimony is somewhat confusing, it does appear that there
was no diminution in the number of bellmen employed by the
hotel from August, when the subcontracting to VLS went into
effect, through November 2009. (Also see R. Exh. 12, which
memorialized Prichacharn’s testimony.)
Returning to the history of the collective-bargaining negotia-
tions, there was apparently a telephone conference call between
Sawyer, Stokes, and Lu in early October. According to Saw-
yer’s testimony, he asked for further bargaining dates, but
Stokes replied that future bargaining dates would be a waste of
time. Stokes essentially admits saying so to Sawyer, although
in his testimony he adds that he advised Sawyer that he would
agree to further bargaining if the Union offered a “proposal that
shows movement.” In an internal email from Lu to various
members of the Respondent’s negotiating group dated October
2, 2009, Lu informs them about the recent conversation that he
and Stokes had with Sawyer, during which Stokes said that “it
would be a waste of time and money to meet if nothing would
be accomplished.” Further, Lu reported that Stokes told Saw-
yer that the Respondent had “not received anything from the
Union showing progress and there was no point in meeting [if
nothing was forthcoming].” The substance of Lu’s email
makes it clear that Sawyer was in possession of the Respond-
ent’s “final offer,” which was the topic of the conversation
between Stokes and Sawyer. (R. Exh. 68, p. 588.)
On October 6, Stokes sent Sawyer a long letter informing
him that in the Respondent’s opinion, the parties “have reached
bargaining impasse in the negotiations.” Further, Stokes went
on to state that, “[t]he parties’ respective positions on key is-
sues have not changed throughout the course of negotiations
and it [is] apparent that further bargaining would be futile.”
Stokes then went into great detail as to his view of the parties
bargaining history. He set forth the “Key Impasse Issues.”
Those issues were: (1) The Health and Welfare Plan, where the
Respondent had proposed eliminating the Union’s Taft-Hartley
Medical Trust with its own corporate medical insurance plan;
(2) the meal periods, where the Respondent had proposed elim-
inating the employer paid 30-minute meal break; (3) arbitration,
where the Respondent had proposed a grievance and arbitration
procedure that ended in final and binding arbitration; and (4)
room attendant requirements, where the Respondent had pro-
posed increasing the minimum room attendant cleaning re-
quirement from 15 rooms to 17 rooms (the Respondent having
lessoned its original proposal of 18 rooms). (Jt. Exhs. 2–
00104–00110.)
In this letter, Stokes also set forth areas where he believed
the Respondent had made concessions. He listed the Union’s
Taft-Harley Pension Fund, which the Respondent had in its
July 17, 2009 proposal sought to replace with its own corporate
401(k) pension plan, but had in its proposal of August 21 “rein-
serted the Union’s Pension Fund as the provider of retirement
benefits.” As other examples of alleged concessions made by
the Respondent from its original proposal to the August 21
proposal, Stokes listed the raised numbers of sick days employ-
ees could receive, the number of shop stewards it would allow,
and the number of rooms attendants were required to clean.
Stokes concluded the letter by stating that the Respondent’s
“final offer, presented on August 21, 2009, remains open . . . .
The Employer is ready, willing and able to discuss the merits of
its final proposal with the Union. However, the proposal stands
as the Employer’s final offer. Thus, unless the Union indicates
it is willing to accept the August 21, 2009 proposal, in its en-
tirety, the parties have reached impasse.” (Jt. Exhs. 2–00104–
00110.)
By letter dated October 9, Sawyer replied that the Union
“strongly disagree[s] with [Stokes’] assertion that the parties
are at impasse in bargaining. To the contrary, [the Union] be-
lieve[s] that there is a great deal of room for further progress in
our negotiations.” Sawyer once again asked Stokes to agree to
meet in Anchorage in October for further bargaining. (Jt. Exh.
2–00111.)
As had become their habit, the parties went back and forth,
“Tit for Tat.” Stokes responded by letter dated October 9 that
“negotiations between [the Union] and [the Employer] are at
impasse and have been for several weeks. The Employer’s
final proposal was sent to the Union on August 21, 2009, ap-
proximately 7 weeks ago. To date, the Union has not accepted
or responded in any way with a counter proposal. Indeed, the
Union has not presented the Employer with a proposal since
April 1, 2009.” Further, Stokes advised Sawyer that the Re-
spondent “desires to maintain its relationship with [the Union]
and will continue to recognize [the Union] as the bargaining
representative of its employees. However, [as the parties were
at impasse]. . . . [the Respondent] will implement the provisions
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
of its final offer . . . . [as of] October 17, 2009.” (Jt. Exh. 2–
00112.)
Sawyer sent Stokes a 7 page letter dated October 12, 2009,
which I frankly find very confusing. In the letter, Sawyer is
highly critical of the Respondent’s manner of presenting its
contract proposals. It accuses Stokes of making proposals in an
“incomplete, incorrect and potentially deceptive” manner.
Over the course of four pages it lists articles and sections of
various proposals where the parties have allegedly reached
tentative agreements. The letter states Sawyer contention,
which was later repeated by Sawyer and Lawson when testify-
ing at trial, that the Respondent’s method of making written
proposals required the Union to perform extra work to deter-
mine specifically what changes the Respondent was proposing
in the existing contract. Finally, it made certain demands upon
Stokes and gave him certain time periods in which to respond.
It concluded with the Union’s continual request for more face-
to-face negotiations. (Jt. Exhs. 2–00114–0020.)
Stokes also sent a letter dated October 12, 2009, to Sawyer,
but this was apparently in response to Sawyer’s letter of Octo-
ber 9. In his letter, Stokes continues to insist that the parties are
at impasse, and there is no indication that further bargaining
will resolve any of the remaining issues between the parties.
Stokes repeats the history of face to face bargaining between
the parties, having met four times over the past 11 months, for
4 full days. Further, he denies any total refusal to have further
face to face meetings, but, rather, acknowledges a refusal to do
so unless the Union presents an updated proposal to the Em-
ployer. He argues that the Union has failed to present an offer
since April 1, 2009, while the parties have met face to face
three times since that event, and with the Employer having
presented the Union with three complete offers. Stokes denies
ever insisting on only bargaining through “technology-assisted”
means, but, rather, that the Respondent only suggested such
methods as an addition to face to face bargaining, a more costly
process. He again insists that impasse has been reached, and
that the Union has taken no action to change that situation. (Jt.
Exhs. 2–00121–00122.)
Having declared an impasse, the Respondent proceeded in
mid-October to implement certain provisions of its last pro-
posal, that of August 21, 2009. The evidence is uncontested
that before implementing changes to the expired collective-
bargaining agreement, the Respondent did not provide the Fed-
eral Mediation and Conciliation Service (FMCS) with 30 days’
written notice of the existence of a contract dispute with the
Union, as required under Section 8(d)(3) of the Act. As stipu-
lated to by the parties during trial, the Respondent did not pro-
vide the FMCS with such notice until February 3, 2010.14 (Jt.
Exh. 1, notice from the Respondent to the FMCS of a dispute
with the Union.)
Linda Mankoff, the Respondent’s former director of cater-

14 While in its answer to par. 10(d) of the first complaint the Re-
spondent denied failing to give written notice to the FMCS prior to
October 17, 2009, it clearly amended that answer by entering into the
stipulation that such notice was given on February 3, 2010. Further, it
should be noted that par. 10(e) of the first complaint, which involved
the Alaska Labor Relations Agency, was withdrawn by counsel for the
General Counsel.
ing, testified as a witness on behalf of the General Counsel.
According to Mankoff, she attended a managers’ meeting
called by the hotel general manager, Artiles, in October 2009.
Jamie Fullenkamp, the hotel director of human resources, con-
ducted the meeting and began by informing the managers that
the Union and the Respondent were at impasse in their collec-
tive-bargaining negotiations. Mankoff testified that Ful-
lenkamp said they could “toss” the old contract and replace it
with the document that she was passing out. Fullenkamp called
the document the new contract, and she proceeded to go
through it item by item.
It is undisputed that the Respondent held two meetings for
the unit employees at the hotel’s Josephine’s Restaurant on
October 17 and 18, 2009. The meetings were conducted by
Artiles and Fullenkamp. During these meetings the managers
informed the employees of certain changes that would take
place immediately. Among those changes were the require-
ments that housekeepers clean 17 rooms per shift, that employ-
ees clock in and out for lunch, and that employees who eat the
food provided by the cafeteria pay $1 for the meal. Jones and
Esparza were present for these meetings, having been invited
by the Respondent.
Further, it should be noted that in an internal Employer email
communication dated October 7, 2009, from Donald Denzin to
Mark Sharkey, Denzin noted the Respondent’s intention to
implement the following changes: “1. Require employees to
clock out and back in at lunchtime; 2. Sign up for Remington’s
CIGNA plan in place of the union’s plan; 3. Require 17 rooms
per housekeeping shift; 4. Charge $1 per employee cafeteria
lunch: 5. Require advance approval for union reps to visit (and
meet only in non-work areas during non-work times);
6. Change holidays to eight (we must figure out exactly how to
implement this since we said to union, ‘you choose.’); 7.
Change sick leave to max 5 days, pay $51 per day beginning on
2nd day of disability; and 8. Announce a 2% raise to non-tipped
employees effective one year after new contract is ratified.”
(R. Exh. 104.) However, in his posthearing brief, counsel for
the Respondent represents that the CIGNA plan mentioned in
the email was never actually implemented,15 no pay increase
was given, and, except for those changes enumerated by Den-
zin, no other provisions of the August 21 final proposal were
implemented. I will accept that representation as there is no
evidence to establish otherwise.
Despite having implemented certain provisions from its Au-
gust 21 final proposal, the Respondent was apparently still
willing to discuss its final proposal. In a letter from Stokes to
Sawyer dated October 23, 2009, Stokes states that the Employ-
er is willing to “meet face to face to discuss and clarify the
finality of its August 21, 2009 [proposal]. However, the Em-
ployer needs to receive an updated or revised union proposal
before dates for such a meeting can be discussed.” (Jt. Exhs. 2–
00127(a)–(b).) While Stokes’ offer does appear somewhat
inconsistent in that he continues to refer to the August 21 pro-
posal as “final,” and, yet, mentions a willingness to meet to
clarify, if the Union submits an updated or revised union pro-

15 The Respondent did not implement a medical insurance plan until
after the March 2010 bargaining sessions.
SHERATON ANCHORAGE 829
posal, the Union could have understood Stokes’ letter to mean
that all was not lost if the Union were willing to further com-
promise. In fact, that is what ultimately happened as the parties
did engage in further negotiations. Although Stokes did not use
these words in his letter, it seems to me that what he was really
doing was suggesting to the Union a way in which the impasse
could be broken.
Once again, events were occurring away from the bargaining
table, which need to be mentioned. In November 2009, the unit
employees voted to authorize a boycott of the hotel in protest of
the Respondent’s alleged failure to bargain in good faith and
implementation of changes to their working conditions. There
was a kickoff rally for the boycott outside the hotel on Novem-
ber 17. It was decided that a number of employees would pre-
sent the hotel general manager, Dennis Artiles, with a copy of a
petition calling for a boycott of the hotel, which petition was
allegedly signed by 84 percent of the unit employees. To that
end, certain of the employee members of the union negotiation
team, Joann Littau, Lucy Dudek, Troy Prichacharn, Maria Her-
nandez, Ann Rodriguez, Gina Tubman, and Su Ran Pak, plus
two other employees not on the negotiation team, Joey Pitcher
and Juanita Bourgeois, were enlisted to present a copy of the
petition to Artiles.
The union rally was taking place outside the 6th Avenue en-
trance to the hotel around 4 p.m. on November 17. At about
4:20 p.m., with the rally well formed, the delegation of present-
ers broke off and entered the lobby of the hotel. They were all
on their own time. The presenters asked to speak with Artiles,
who appeared about 5 minutes later. According to the employ-
ee witnesses, Prichacharn handed Artiles a copy of the petition
(GC Exh. 8), while Dudek introduced the group and said, “Mr.
Artiles, we are here to present you our boycott petitions and we
want to show you our support for the boycott.” Littau mo-
tioned outside, saying, “All of these people outside are mem-
bers of the community who are supporting us in our boycott.”
Artiles took the petition and replied only, “Thank you for bring-
ing this to my attention.” The delegation then left the hotel
lobby and joined the rally in progress. After a few minutes, the
rally ended as the temperature outside was frigid.
The rally lasted a total of about 35 minutes, and the delega-
tion’s presentation of the petition to Artiles took around 5
minutes. The members of the delegation who testified at trial
all indicated that they did not engage in chanting, noise making,
or other celebration—type sounds in connection with the
presentation of the petition to Artiles. Contrary to the asser-
tions made by Artiles, all the employees who testified about the
petition presentation rejected any accusation that they were
rude or disrespectful to Artiles or anyone else.
The Respondent acknowledges that none of the employees in
the delegation were on duty at the time they entered the lobby,
and, further, stresses that they did not receive permission before
entering the hotel. The Respondent is apparently relying on the
alleged violation of the rules of conduct in the associate hand-
book to justify certain disciplinary actions taken by manage-
ment against members of the delegation. On page 16 of the
associate handbook under the heading “Working
Hours/Overtime,” it reads: “Return to property after work is not
permitted. At the conclusion of the shift, you should leave the
hotel premises. If you desire to use any of the hotel facilities
after hours or on your day off, you MUST receive prior permis-
sion from the General Manager.” Further, under the heading
“Associate Rules and Regulations,” page 33 it says: “I agree
not to return to the hotel before or after my working hours
without authorization from my manger.” (GC Exh. 7.) Coun-
sel for the Respondent emphasized in his brief that all employ-
ees of the hotel received a copy of the associate handbook,
which had been in effect since the Respondent assumed opera-
tion of the hotel in December 2006.
Artiles testified that the employee delegates did not block
anyone or prevent anyone from entering the hotel. Still, he
testified that he was concerned with their “body language,”
which he thought created a very “negative impression,” in that
they were belligerently and rudely insisting on the right to en-
gage in their activity. Further, Artiles testified that, while he
was surprised and “very concerned” by the employees’ con-
duct, he was not physically afraid. However, he clearly thought
that they were discourteous and that they were out of place
confronting him in the hotel lobby, as “there is a time and place
for everything.”
On or about November 19, 2009, the Respondent disciplined
Tubman, Littau, Rodriguez, Hernandez, Dudek, Pak,
Prichacharn, Bourgeois, and Pitcher for having presented Ar-
tiles with the boycott petition 2 days’ earlier. The disciplinary
notice issued to each of the employees stated as follows: “On
11/17/2009 around 5:45 PM you and a group of associates en-
tered the hotel on your time off. You all approached the Gen-
eral Manager in an [sic] disorderly conduct, verbal harassment
making threats and very intimidating to him about what he was
doing wrong with the union negotiations.” There then followed
four associate handbook rules that the employees had allegedly
violated, with the notice concluding, “This will not be tolerat-
ed.” The four handbook rules that the employees were accused
of having violated were: the no loitering on the property rule,
the being only in assigned work areas rule, the common decen-
cy and public embarrassment rule, and the conflict of interest
rule. (GC Exhs. 13, 16, 18, 20, etc.)
In addition to the disciplinary notices issued to the nine em-
ployee members of the delegation, Tubman, Prichacharn, and
Littau were initially suspended, but then, according to Ful-
lenkamp, she and Artiles consulted with members of the Re-
spondent’s executive team in Texas and it was determined not
to suspend them, but just issue each of them a written warning.
However, it does appear that Bourgouis and Dudek were actu-
ally suspended. Allegedly, no employee lost any pay as a result
of this discipline.
In connection with the boycott, an issue has arisen regarding
whether, as alleged by the General Counsel, the Respondent
“Cooked the Books” to make it seems as if the boycott was
having a greater economic impact than was accurate. Alleged-
ly, this scheme was intended to frighten the employees into
believing that because of the adverse economic conditions cre-
ated by the boycott that they might be laid off or their hours
reduced, so as to cause them to become disenchanted with the
Union.
The evidence of such a plan comes exclusively from the tes-
timony of Linda Mankoff, the Respondent’s former director of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
catering, who testified as a witness on behalf of the General
Counsel. According to Mankoff, shortly after the boycott be-
gan, Artiles suggested to her and Libbrecht, the director of
sales, that the figures concerning the cancellation of hotel busi-
ness due to the boycott needed to be inflated. She gave the
example of an event sponsored by the International Brother-
hood of Electrical Workers that had been canceled because of
the boycott, where Artiles was unhappy with the reported
amount of loss suffered by the hotel. Mankoff testified that
Artiles told her and Libbrecht to “go back and look at the num-
ber again. [He] thought it would be higher.” Libbrecht re-
checked the numbers, determined they were accurate, and so
informed Artiles. Still being unhappy, Artiles announced that
from now on he was taking control of executing the banquet
contracts, work previously performed only by Mankoff and
Libbrecht. He instructed them to take a third look at the can-
celled contract, and specifically said, “I need this number to be
higher so it can have an impact when I say we made a loss be-
cause of the union boycott.”
Mankoff testified that she understood what Artiles was doing
was instructing her to fabricate numbers. Thereafter, she and
Libbrecht “padded” the loss figures and instructed their sales
team to do the same. The system they devised was simply to
inflate the loss figures by 10 percent. They made it seem as if a
mathematical error was the cause of the discrepancy, so, if
discovered, the discrepancy would appear to be nothing more
than an error in calculation.
In fact, Mankoff testified that instead of losing money, the
sales/catering operation was making money, and was leading
the region in sales.
As further evidence of the Respondent’s alleged unfair labor
practices, the General Counsel contends that the Respondent
installed and operated surveillance cameras at the hotel in No-
vember 2009 without first bargaining with the Union. The
General Counsel claims that these cameras were intended to
monitor elevators and hallways at the hotel where employees
could be observed.
The evidence shows that surveillance and security cameras
have been in place at the hotel since approximately 1980. They
are stationed at the two main entrances to the hotel on Fifth and
Sixth Avenues. The cameras monitor the ingress and egress to
the hotel and the hotel parking lots.16 The evidence further
establishes that these cameras have been routinely replaced and
upgraded numerous times over the years as the available tech-
nology has improved. No evidence was offered to show that
the cameras have been moved from their fixed locations. Wit-
ness testimony was that due to vandalism in the fall of 2009,
that the broken cameras were replaced. No evidence was of-
fered that employee work areas of the hotel were monitored.
It is the Respondent’s position that installing and maintain-
ing security cameras is part of the hotel’s essential duties of

16 During the course of the trial, all parties agreed that it would be
advantageous for the undersigned to view the hotel property. To that
end, I received a short tour of the hotel in the company of counsel for
the General Counsel, counsel for the Respondent, Jessica Lawson on
behalf of the Union, and Denis Artiles, the hotel general manager.
During that tour, the security cameras were pointed out for all to see.
keeping the property safe for guests. While there is no dispute
that the Respondent did not notify and bargain with the Union
regarding the repair and upgrading of the hotel cameras, the
Respondent argues that it was not required to do so, as this is an
area essential to the hotel’s business operations, and, as such,
not subject to negotiations with the Union.
In early December 2009, an incident allegedly occurred re-
garding an employee wearing a union button. According to
Housekeeper Elda Buezo, she was in the hotel elevator on the
morning of December 8 when she ran into the director of opera-
tions, Eduardo Canes. At the time she was wearing a silver
dollar sized button containing the words, “for a fair contract [in
English and Spanish] UNITE-HERE!” (GC Exh. 21.) She was
carrying several more such buttons in her hand.
Buezo testified that Canas asked her to take the button off
and give it to him. He also asked for the buttons she was carry-
ing in her hand. Buezo did as she was directed and removed
the button that she was wearing and handed it and the other
buttons to Canas. According to Buezo, she had intended to
give the extra buttons to her coworkers.
Buezo further testified that until that time, it had not been
unusual for employees to wear union buttons at work, and she
had done so herself in the presence of Canes and other manag-
ers. This was the first time that she had been asked to remove
her button.
Although Canes testified at the trial, he did not deny that the
incident happened. Buezo seemed a very credible witness, and
I have no reason to think that she fabricated, exaggerated, or
embellished the incident. According, I conclude that the inci-
dent occurred as Buezo testified.
During December 2009, there was again some bargaining be-
tween the parties.17 However, there are some disparities be-
tween the Union and the Respondent as to just what occurred
during these sessions, and I am unable to totally resolve that
confusion. It should be noted that in an effort to resolve these
issues, I have looked to the notes taken at these sessions by
Lawson. (GC Exh. 46.)
Apparently at the Respondent’s request, on December 7,
Sawyer and Jones, accompanied by Lawson and employee-
committee members Littau, Tubman, and Gavin, met with
Stokes and Villareal in a restaurant at the hotel. Sawyer was
interested in trying to get consensus of what specific contract
provisions had been agreed to by the parties. However, Stokes
responded that he was frustrated by the Union’s alleged failure
to come forward with a complete proposal, which he had been
asking for during the entire period of the parties’ negotiations.
Sawyer attempted to engage Stokes on substantive issues
separating the parties, but Stokes had a number of points that he
wanted to make, some of which had been raised by Stokes re-
peatedly at earlier sessions. He went into a discourse on the
value of final and binding arbitration, and the need for the
Country to have a “Travel Ambassador,” as a stimulus for the
hospitality industry. According to Sawyer’s testimony, he and
Stokes had a sidebar conference, during which Stokes said that

17 While there is some confusion in the record as to the specific two
dates in December when the parties met, these meetings occurred
sometime between December 7 and 12.
SHERATON ANCHORAGE 831
he did not want to jeopardize the Respondent’s “legal position,”
but that he would be willing to discuss certain of these matters
in sidebar conferences. They did so the following day.18
On December 8, Stokes seemed intent on discussing the
Taft-Hartley Pension Trust, and in particular the allegation that
the pension monies had been moved from a financially sound
local Alaska fund to an unsound National Fund. This issue had
been repeatedly raised by Stokes during the course of negotia-
tions and had been the subject of several information requests
from Stokes to the Union. Sawyer was upset with Stokes’ habit
of continually raising this issue, and he reminded Stokes that he
had referred him to the trust administrator a year earlier.
Apparently, the parties then held the sidebar conference that
had been alluded to the previous day. During this sidebar,
Sawyer “floated” a hypothetical offer to Stokes whereby the
housekeepers would clean 16 rooms, and the Respondent’s
health and welfare trust contributions would be pegged to those
of the leading union hotel in Anchorage. Stokes replied that he
would rather pay what the Hilton Hotel paid.19 Stokes and Vil-
larreal continued to express disappointment that the Union had
not put together a comprehensive contract proposal.
The incident that followed appears to me to be rather unusu-
al. Villareal testified that the Union actually put a proposal in
writing, and slide it under her hotel door that evening. (R. Exh.
47.) The document was headed, “CONFI-DENTIAL
INTERNAL UNION DOCUMENT [,] Committee Discussion
Non Proposal.” It is apparent to me that this was intended as a
sidebar document that the Union was not formally offering to
the Respondent as a contract proposal, but, rather, merely as an
informal trial balloon, to see if the Respondent had sufficient
interest in it to then make counter proposals of its own.
This “Non Proposal” from the Union showed a wage freeze
for the first year of the contract, followed by increases of 2
percent for each of the next 3 years, or the minimum wage in-
crease, if greater. For medical insurance it basically showed
the rate of contribution being the same as that paid at the Cap-
tain Cook Hotel.20 Regarding room attendants, the document
provided that attendants would clean 16 rooms the 1st and 2d
years of the contract, and 15 rooms in the 3d and 4th years of
the contact. On the issue of job classifications, the document
appeared to largely accept the Respondent’s classifications as it
stated: “Can agree to employer classifications except for laun-
dry room attendant and seamstress with understanding from
management that there is no intent to combine work currently
done or change job duties as a result of job title change.” Final-
ly, this nonproposal indicated that tentative agreements (TAs)
should be confirmed, and that absent other changes by the par-
ties, the language in the expired agreement should be main-
tained.
Events again occurred away from the bargaining table, which

18 By “legal position,” I assume that Stokes meant the Respondent’s
position that the parties had already reached impasse.
19 The Hilton and the Union had been engaged in lengthy, unsuccess-
ful contract negotiations, and the Hilton had recently implemented its
own health care plan.
20 The Captain Cook Hotel is a major hotel in downtown Anchorage
whose employees are currently covered by a collective-bargaining
agreement with the Union.
require some attention. On February 2, 2010, at about 3 p.m., a
number of union supporters were distributing flyers outside the
hotel’s front and back entrances. These flyers announced the
Union’s boycott of the hotel to guests and others who might be
entering or exiting the hotel. The flyer requested that the public
not patronize the hotel because of the labor dispute with the
employees. The two entrances to the hotel are under overhangs
where cars and cabs drop off or pick up riders having business
with the hotel. There are private sidewalks adjacent to the en-
trances, but the public sidewalks are some distance away, past
the parking area. At the time of the incident in question, those
employees handing out flyers were clearly on the hotel’s pri-
vate property. There is no contention, nor any evidence, that
they were in any way trying to physically impede the ingress or
egress of individuals who were coming to or going from the
hotel. Employees Dudek and Tubman were at the front en-
trance, while employees Littau and Prichacham were at the
back entrance. These employees were situated between 4 to 6
feet from the entry doors. They were not working at the time,
and had not asked permission of hotel management to be on the
property when off duty. While they were passing out flyers,
fellow employees were picketing the hotel from the public
sidewalk.
A short time after the four employees began to pass out the
flyers, Artiles, Fullenkamp, and another manager came out of
the hotel and approached Prichacharn and Littau. Fullenkamp
announced that the employees were on private property, were
off the clock, and, therefore, had to move to the public side-
walk, or she would call the police. Union Agent Esparza, who
was present, approached Fullenkamp and asked if she was go-
ing to discipline these employees or was calling the police. She
told him that the police had already been called. At that point
Prichacharn and Littau left the property.
Turning her attention to the other side of the hotel, Ful-
lenkamp confronted Dudek and Tubman. She asked them
whether they were off duty, to which they responded yes. Ful-
lenkamp replied, “Well, you’re not supposed to be here, you’re
trespassing.” Dudek and Tubman defended themselves, saying
that they had a right to be there, and handed Fullenkamp a pa-
per listing certain NLRB cases with case summaries indicating
they had a right to be on the property to communicate with
customers regarding their labor dispute. (GC Exh. 11.) Ful-
lenkamp looked at the paper, but was apparently not very im-
pressed, as she again repeated that they had no right to be on
the property. Further, she told them, “You need to look at your
handbook. It’s in your handbook that you’re trespassing.” The
two employees remained while Fullenkamp went back into the
hotel. Upon shortly returning, she told them if they still re-
mained that she would have the security guards escort them off
the property. Not dissuaded, the employees steadfastly re-
mained. Once again Fullenkamp went back into the hotel, re-
turning shortly to tell the two employees that the police had
been called, they were on their way, and that the employees
must leave now. Finally, Dudek and Tubman had had enough,
and they left the hotel property.
The following day, the four employees were suspended
pending an investigation. A week later, on February 8, 2010,
the four employees were called back to the hotel so they could
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
meet with Artiles that tell him their side of the story. Subse-
quently, Artiles recommended they all be terminated, which
recommendation was concurred in by Villareal, the final deci-
sion maker. On February 17, the four employees were again
called back to the hotel where they met individually with Ar-
tiles who informed them that they were being terminated for
violating hotel policy.
The disciplinary notices received by the four discharged em-
ployees were identical. (GC Exhs. 12, 15, 17, 19.) They were
drafted by Fullenkamp. The employees’ misconduct was iden-
tified as “passing out flyers to our hotel guests on your time
off,” as well as refusing to leave the property when instructed
to do so. Fullenkamp also referenced the November 17, 2009
incident when they were warned about being on hotel property
while off duty without permission.21 In the discharge notice,
Fullenkamp stated: “When I asked you to leave the property,
you refused at least two times by turning away from me and
kept handing out the flyers. You then tried to argue with me
about this by telling me you had the right to be there.” Further,
the notice stated, “your behavior was rude and disrespectful to
me and other managers,” and later stated that, “as a shop stew-
ard you know that you do the request and grieve it later.” All
four discharged employees were union shop stewards.
In the body of the discharge notice the Respondent refers to
various sections of its Associate Handbook including the rules
on off-duty access, antidistribution, and insubordination. Final-
ly, the notice also makes reference to the “no strike/no lockout”
provision in the expired collective-bargaining agreement.
It appears that these discharges were reported extensively by
the local press in Anchorage, with a number of the employees
interviewed on a local television station. The Union held a
press conference in front of the Board’s Anchorage office to
publicize the terminations, and the bargaining unit employees
were undoubtedly aware of what had transpired. However, as
represented by counsel for the Respondent, in the weeks pre-
ceding the hearing in this case, all four employees received an
unconditional offer to return to work, and all four did so with
full back pay and seniority. No evidence was offered to dispute
this representation.
At about the same time as the flyer incident, specifically on
February 3, 2010, Stokes, on behalf of the Respondent, gave
notice to the Federal Mediation and Conciliation Service
(FMCS) of its proposed termination or modification of the ex-
pired contract with the Union. (Jt. Exh. 1.) As no evidence
was offered of any earlier notice, it is undisputed that this was
the first such notice given by the Respondent in connection
with the expired contract.
Despite the fact that Stokes had taken the position since early
October 2009 that the parties were at impasse, and the Re-
spondent had implemented certain of its proposals as contained
in its “final” contract offer of August 21, 2009, the Respondent
asked the Union for bargaining dates in March of 2010. (Jt.
Exh. 2–00136(d).) Thereafter, the parties met in Anchorage on
March 10 and 11, 2010.
The Respondent’s bargaining team was comprised of Stokes,

21 This was the incident where these four employees and others had
presented Artiles with the boycott petition.
Fullenkamp, Artiles, Villareal, and Alicia Ernenwein, a contract
human resource director for the Respondent. During these
March meetings, Ernenwein was responsible for taking notes
for the Respondent. The Union was represented at these nego-
tiations by Sawyer, Jones, Lawson, and various members of the
employee bargaining committee. As usual, Lawson took notes
for the Union.
The March 10 meeting began with Stokes raising the issue of
the union pension trust fund. It should be noted that the Re-
spondent had previously acquiesced and agreed to continue
making contributions to this fund despite Stokes’ stated reser-
vations about its financial viability. In any event, Stokes indi-
cated that he had spoken with the trustee who was the head of
the trust’s financial committee, and who had said that the 2008
merger of the Alaska trust fund into the National UNITE
HERE! trust fund was a “bad move.” Stokes mentioned that
the U.S. Department of Labor was going to conduct an investi-
gation of the merger because it considered it unusual that such a
large “transfer of cash” had taken place. Further, Stokes men-
tioned that the beneficiaries of the trust, which included em-
ployee-members of the bargaining committee, might file a class
action ERISA suit against the trustees for agreeing to the mer-
ger. Several of these trustees were members of the union bar-
gaining team, including Jones. According to Stokes, the Na-
tional Fund had an enormous amount of unfunded liability.
After some acrimony between Sawyer and Stokes over this
trust fund issue, Sawyer presented a written proposal, which
appears to incorporate many of the provisions from the Union’s
“Non Proposal,” which, as mentioned above, had been slipped
under Villareal’s hotel door on the evening of December 8,
2009. This written proposal was entitled, “Union’s Package
Proposal 3/10/10.” (GC Exh. 56.) While it is very similar to
the Union’s “Non Proposal,” it is worthwhile to set forth its
provisions.
Below the heading appears the following: “The Union offers
this proposal in its entirety. Should any part of the sum be
rejected, the proposal and all of its parts are to be considered
withdrawn and the Union’s prior position prevails.” For
“Room Attendant Workload,” the proposal called for room
attendants to clean a maximum of 16 rooms in the 1st and 2d
years of the agreement and a maximum of 15 rooms in the 3d
and 4th years. Under medical insurance, the Union proposed
the same rates as contained in its contract with the Captain
Cook Hotel. Those contribution rates were then set forth in the
proposal. As to yearly wage increases, the Union offered a
wage freeze in the first year of the contract, followed by a 2-
percent increase in each of the remaining 3 years of the con-
tract. Finally, the proposal provided that the language in the
expired contract be maintained, unless the parties agreed to
changes. (GC Exh. 56.)
The parties next begin to confirm where they had previously
reached tentative agreements (TAs). This became a long pro-
tracted process, and there continued to be disagreement over
job classifications and other issues. However, at some point the
parties reached the issue of medical insurance. The Union was
continuing to propose theTaft-Hartley health and welfare plan
as provided for under the terms of the expired contract. How-
ever, the Respondent offered a new independent medical plan,
SHERATON ANCHORAGE 833
which was substantially different from the CIGNA plan that the
Respondent had proposed in its “final proposal” of August 21,
2009.
The Respondent’s new medical insurance proposal was an
AETNA health plan. Mary Villareal made an approximately
90-minute presentation on the specifics of this plan. Further,
she provided the Union with a comparison chart, showing the
differences between the medical insurance provided for in the
expired contract, and that provided for in the AETNA plan.
(GC Exh. 53.) Stokes noted that the Respondent had “shopped
around” since the August 21, 2009 proposal, and that this
AETNA plan was the best medical insurance available for the
money. The parties discussed the fact that the rates for the
AETNA insurance would only be guaranteed for 1 year, which
the Respondent contended was no different than the rates under
the expired contract. The Union disagreed, arguing that those
rates were guaranteed for the term of the contract. Sawyer
indicated that the Union would discuss the Respondent’s medi-
cal insurance proposal, and, upon his request, the Respondent
promised to connect him with its insurance broker so that Saw-
yer could have more detailed questions answered.
The parties discussed the specifics of a dental and vision
plan, offered by CIGNA, which had been proposed by the Re-
spondent in earlier negotiations. There was some further dis-
cussion on job classifications and the pension fund. Also,
Stokes was critical of what he considered to be the failure by
the Union to ever present a full and complete contract proposal,
which was suitable for execution. He insisted this is what the
Respondent had done, and the Union should have too. Sawyer
countered that the Union’s proposal was sufficient, and it was
not required to bargain in the manner preferred by Stokes.
Further, Sawyer requested that the four terminated employees
be reinstated, and Stokes told him to put that request in his
proposal. The parties ended the session with the understanding
that they would resume bargaining the following day.
On March 11, 2010, the parties met for what would turn out
to be their last bargaining session. Initially there was some
movement, with the Union agreeing to accept the Respondent’s
proposed contribution amount for employee pensions. Further,
as noted earlier, the Union had made some concessions regard-
ing maximum room cleaning for housekeepers and as to wage
rates. These concessions were contained in the most recent
union proposal dated March 10, 2010. (GC Exh. 56.)
However, matters quickly soured when the parties began to
discuss how the Respondent’s proposed job titles would impact
on the individual job duties of the unit employees. The dis-
putes appear to be over the actual duties the reclassified em-
ployees would perform. It was the Respondent’s position that
the unit employees had actually been working under these “new
job titles” since it had assumed management of the hotel in
December 2006. Never the less, the Union wanted to discuss
each of these job titles in connection with the work that the
respective employees would actually be performing. Sawyer
turned the issue over to Lawson, who began raising questions
about the particular job titles and the work associated with
them. Both Artiles and Fullenkamp were present, and they
were attempting to reply to Lawson’s inquiries.
From Ernenwein’s notes of that day, it appears that Stokes
suddenly blurted out, “We are at impasse on this issue.” That
was followed by Sawyer saying, “No we aren’t. You try to
warp and shape facts to suit your purpose. Is the employer
going to allow us to? [sic] Alright, we’re done Arch. Sorry
you don’t want to listen.” To which Stokes replied, “You’re
the one walking out.” This ended with Sawyer saying, “I’m not
listening to you.” (R. Exh. 25, p. 4 of notes on meeting held on
March 11.)
The testimony of Sawyer is not markedly different, although
he claims that after Stokes said the parties were at impasse and
he disagreed, that Stokes again brought up the Colonial Wil-
liamsburg contract and how well he allegedly got along with
the top International union officials. According to Sawyer, in
frustration he replied, “Arch, this is not the 70’s and I’m not
wearing a tri-cornered hat.” Sawyer testified that he had heard
about the Colonial Williamsburg contract one too many times.
According to Sawyer, he swore at Stokes, who accused him of
having an early plane to catch. Sawyer replied that he was in
Anchorage all day, and “if you want to sit down and start really
talking negotiations, you got my number.” Sawyer then led the
Union bargaining committee out of the room.
In his posthearing brief, counsel for the Respondent contends
that Stokes was simply frustrated with the Union’s endless
discussion about the Employer’s job classifications, especially
since most of these classification issues had already been re-
solved. Counsel does not mention Stokes use of the term “im-
passe,” but only Stokes’ “expression of frustration.” Further,
counsel places the blame for the premature end of the meeting
on Sawyer, who counsel says, “exploded and terminated the
meeting-walking out and taking his committee with him.”
Away from the bargaining table, the Respondent took certain
action that the General Counsel contends was unlawful. On
March 18, 2010, the Respondent implemented an incentive
bonus plan. A memo to the housekeeping department from
Artiles was posted on that date in the department, as well as on
the door of each floor’s housekeeping supply closet. Under the
heading “GSI Incentives,” the memo stated the following: “In
an ongoing effort to drive our Guest Satisfaction Scores up, I
am putting a new incentive into place. If we, as a hotel, receive
a 9.0 or better on Cleanliness of Hotel AND Cleanliness of
Room and Bath for the month then I will minus a room for ALL
Housekeepers for the following month. Meaning you will only
be responsible for 16 rooms for the following month.” (Em-
phasis as in original.) The memo also promised that each
housekeeper would receive a $25 gift card if the overall goal
for the hotel was met, and that if an individual housekeeper’s
name was mentioned positively in an online guest survey, that
housekeeper would receive a $25 gift card. (GC Exh. 96.)
Also, based on the testimony of housekeepers Ana Rodri-
guez and Elda Buezo, the memo was further explained to as-
sembled groups of housekeepers by Eduardo Canes, the direc-
tor of operations, around the time that it was posted. In his
remarks, Canes mentioned that some people would “not be in
agreement with the [new] plan,” but it was now in effect.
In her posthearing brief, counsel for the General Counsel
acknowledges that the “Respondent’s actual implementation of
the plan was spotty,” but that Canes did lower the room clean-
ing requirement to 16 rooms for several employees who had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
received positive comment cards from guests. Counsel for the
Respondent, in his brief, argues that this program was never
fully implemented, and the impact of this partial implementa-
tion was de minimis. Mary Villarreal testified that after consul-
tation with the corporate office, Artiles decided not to imple-
ment the plan, and she confirmed that decision in conversations
with Artiles and Fullenkamp.
The testimony of the employee witnesses regarding this mat-
ter was very weak. Housekeeper Elda Buezo testified that for 1
day only all the housekeepers were permitted to clean one less
room. She thought that it was around the date that Canes talked
to the housekeepers about the new plan, but she did not seem
very clear as to the reason this happened. Housekeeper Ana
Rodriguez testified that two other housekeepers, Dolores Cuel-
lar and Rajit Aguglia, for 1 day only had their room cleaning
quota reduced by1 room, to 16 rooms, because the hotel had
received good comment cards about them filled out by guests.
Counsel for the Respondent argues in his brief that the pro-
gram was only in effect for a very limited period of time, and
was discontinued after consultation with the corporate office.
He contends that the impact of the program on the bargaining
unit was de minimis, at best, and should not be considered as a
refusal to bargain in good faith. Obviously, counsel for the
General Counsel disagrees.
Following their meetings of March 10 and 11, Stokes sent a
long letter to Sawyer dated March 19, 2010. (Jt. Exhs. 2–
00137–00140.) In that letter Stokes summarizes what he con-
tends occurred during those meetings. He prefaces the letter by
stating that despite “the receipt of two offers from the Un-
ion…showing some movement . . . the Hotel has not changed
its position from its August 21 final offer, except as discussed
below, and the parties remain at impasse on many issues.”
Stokes sets forth a number of contentions in eight (8) num-
bered paragraphs. In paragraph one he states that the parties
went through the history of their negotiations and noted a num-
ber of items as tentatively agreed upon (TAs). In paragraph
two Stokes says that while the Respondent listened to various
union proposals, it “continues to adhere to its position as ex-
pressed in the final offer made on August 21, 2009. The only
exception is that we have now substituted a proposed health
care plan from AETNA for the one proposed on August 21
from CIGNA. As you know, the Hotel did not implement the
CIGNA plan, but has continued to contribute to the Union’s
health and welfare fund up to now: that will soon be changing.”
In paragraph 3 of the letter Stokes gives the Respondent’s
reasons for switching from the union health and welfare plan to
AETNA, primarily cost. Stokes characterizes the union plan as
“unreasonably expensive” and the AETNA plan as “financially
responsible.” He references the presentation by Mary Villarreal
of the specifics of the plan at the bargaining sessions in March,
as well as the summary of benefits chart comparing the union
plan with the AETNA plan. Stokes reminds Sawyer that the
Respondent provided him with the contact information for the
Respondent’s insurance broker so that Sawyer might direct any
questions he had about the plan to the broker.
Stokes continues to discuss the medical insurance issue in
paragraph 5 of his letter. He contends that the Union has op-
posed the Respondent’s use of any medical insurance plan,
except the union plan. He restates the Respondent’s position
that the only fiscally responsible action for it to take is to obtain
the flexibility to change plans every year, but the Union has
continued to challenge this flexibility by insisting on only the
union medical plan. Stokes ends this paragraph by saying,
“The parties are at impasse on this issue and have remained
there since the outset of negotiations.”
Stokes changes topics in paragraph 6 of the letter, discussing
the Union Pension Fund. However, rather than a review of
what the parties discussed during their March negotiations, this
paragraph seems to be nothing more than a recap of Stokes’
concern over the financial integrity of the National Union Pen-
sion Fund into which the Alaska Pension Fund was merged.
He complains about how difficult it has been for the Respond-
ent to obtain necessary information from the trustees of the
National Union Pension Fund, and claims to have turned the
matter of his concerns over to the Employment Benefit Services
Administration in Seattle for investigation.
Again, in paragraph 7 of the letter, Stokes does not discus-
sion the matters raised during the March negotiations, but, ra-
ther, uses it as an opportunity to restate the Respondent’s oppo-
sition to contributing to the Legal Fund, as provided for in the
expired contract.
Paragraph 8 of the letter is more instructive, as it states
Stokes’ position regarding those issues over which the Re-
spondent contends the parties are at impasse. They include the
following: a. holidays; b. the number of rooms a housekeeper
must clean; c. the unpaid 30-minute meal period; d. sick leave;
e. funeral leave; f. jury duty; g. the grievance procedure; h. the
pension trust; i. wages; j. the health and welfare fund; and k. the
legal fund.
In his letter, Stokes goes on to reprimand Sawyer for
“walk[ing] out of the March 11 session while we were discuss-
ing our list of job classification names.” Further, he says that
“the Hotel’s representatives were willing to remain and contin-
ue to negotiate when you elected to leave the room.” Stokes
claims that it is “apparent from the Union’s own conduct …that
the parties are at impasse.” In his final paragraph, Stokes reit-
erates his contention that the parties have remained at impasse
since August 21, 2009. Therefore, he notifies Sawyer, that the
Respondent is “implementing anew, its August 21 offer, except
that as of May 1, 2010, the AETNA plan will be implemented
in place of the union health and welfare plan that is currently in
effect.” (Jt. Exhs. 2–00137–00140.)
In my opinion, this letter from Stokes was extremely self
serving, and was intended primarily to be used in litigation, and
as a defense to unfair labor practice charges. However, that
does not necessarily mean that the substance of the letter was
inaccurate or incorrect. I will have much more to say about
these matters in the analysis section of this decision.
In response to Stokes’ letter, Sawyer answered with his own
letter dated April 1, 2010. (Jt. Exhs. 2–00141–00143.) Not
unexpectedly, Sawyer vigorously denied that the parties were at
impasse. He accused Stokes of attempting to artificially create
and declare impasse. According to Sawyer, the parties were
still bargaining with there being no overall impasse reached.
In particular, he mentions the Respondent’s AETNA medical
insurance proposal, which was only raised by the Respondent
SHERATON ANCHORAGE 835
for the first time during the March negotiations. Regarding the
AETNA proposal, Sawyer states that “the Union has at no time
articulated its position regarding the [proposal], nor have you to
date asked us to do so. Nor are we ready or able to offer a re-
sponse at this time, since there are many questions that the
Union must pursue to adequately address your idea to again
charge [sic] plans . . . . [T]he Union began at our last session to
explore all of the differences between the current plan and the
Employer’s newly proposed plan.” Further, Sawyer argues that
the Respondent needs to make information available to the
Union “that will enable us to understand and assess the Em-
ployer’s brand new proposal on this complicated subject.”
While Sawyer does not deny that he “walked out” of the bar-
gaining session on March 11, he criticizes Stokes for allegedly
wasting time talking about the Colonial Williamsburg agree-
ment, his relationship with other UNITE HERE! officials, other
irrelevant subjects, and refusing to answer questions on the job
classification issue. He claims that, “We saw no benefit in
continuing a discussion that did not seek to earnestly pursue a
full and complete discussion of proposals in an attempt to reach
agreement.” Sawyer states a willingness to “continue meaning-
ful discussions and offer proposals in an attempt to reach
agreement.” (Jt. Exh. 2–00141–00143.)
I believe that Sawyer, as did Stokes, wrote this letter with an
eye towards possible litigation. However, the letter strikes me
as not quite as self serving as the one written by Stokes. Clear-
ly, the Union was interested in getting back to the bargaining
table. But not so the Respondent, resting on its claim that im-
passe had been reached.
As noted earlier, in his letter of March 19, 2010, Stokes ad-
vised Sawyer that as of May 1, 2010, the Respondent would
implement the AETNA medical insurance plan in place of the
union health and welfare plan that was still in effect and was
provided for in the expired collective-bargaining agreement.
(Jt. Exhs. 2–00137–00140.) According to the Respondent, this
led to a series of small group “meet and greets,” between the
hotel managers and unit employees where the new medical
insurance plan could be explained to the employees and any
questions answered. These meetings occurred in the Jade Res-
taurant, which is located in the hotel lobby. There were ap-
proximately five such meetings held during the period around
March 22 to 25, 2010. The meetings were held during the em-
ployees’ lunch period, lasting approximately 30 minutes.
Lunch was paid for by the Respondent and provided through
the Jade Restaurant, with the employees being permitted to
order off of the menu.
It is counsel for the General Counsel’s contention that during
these meetings Artiles and other managers made disparaging
and denigrating remarks about the Union and made other
statements that violated the Act. Numerous employees testified
about these events, as well as a number of managers who were
in attendance. Preliminarily I will note that I found the evi-
dence regarding these events to be very confusing, contradicto-
ry, inconsistent, and hard to evaluate. In many instances the
employees testified in a cryptic, truncated manner regarding
these events, and even when responding to leading questions
from counsel were hard pressed to recall the specifics of the
events in question. In some instances this problem was com-
pounded by a language barrier, as the managers, who were
alleged to have made the unlawful statements, principally Ar-
tiles, were reported to have spoken in either Spanish, English,
or both, and the employee witnesses were primarily speakers of
a language other than English, most commonly Spanish.
Both Artiles and Fullenkamp testified that the original idea
to hold these meetings was their own. Artiles requested that
meetings of groups of 10 employees be arranged. Fullenkamp
scheduled various departments and cross-sections of employees
to attend. The principal topic of conversation at these meetings
was the new health insurance plan, although it appears that the
meetings were somewhat unstructured and ranged over a num-
ber of topics, which varied from meeting to meeting. Typical-
ly, employee questions covered multiple areas of concerns.
Fullenkamp apparently created a spreadsheet that showed the
respective information on the AETNA plan and the union med-
ical plan that was being replaced. Further, Fullenkamp made it
clear from her testimony, as did Artiles, that they used the op-
portunity to inform the employees that it was the Respondent
that paid for the employees’ medical insurance, whether under
the union plan or the AETNA plan.
Of the employees who attended the Jade Restaurant meet-
ings, approximately 30 testified.22 It is very hard to know ex-
actly what was said by management at those meetings as all the
witnesses seem to recall different and partial versions of what
was discussed. Out of these 30 employees, 8 appear to testify
that Artiles disparaged the Union in some way or made threat-
ening statements regarding the Union. These eight employees
are Yanira Medrano, Dexter Wray, Elda Buezo, Maria Bautista,
Maria Hernandez, Ana Rodriguez, Susannah Bautista, and Luz
Maria Zavala.
One or more of these eight employees testified that Artiles
said that: they would take the benefit package that he offered
or they would get nothing; that he was the boss and “wore the
pants” in the hotel and could fire anyone he wanted to; that he
wanted the Union out; that the union dues were used by the
union officials to “buy new cars with”; regarding the four dis-
charged employees, he asked, “have you seen them around
here, have they come around here, have they been back?”; re-
garding seniority, that he would continue it, but if he wanted to,
he would take it away; that he could return the 15-room stand-
ard for housekeepers, but that he didn’t want to “bother” or
“molest” the Union; that it was his hotel and he would run it the
way he wanted to; and that there would be “consequences”
from the boycott, and that he would start “cutting people’s
hours” and engaging in “layoffs.”
The remaining approximately 22 employee witnesses who
testified as to attending the meetings at the Jade Restaurant did
not indicated that managers said anything disparaging or threat-
ening about the Union. Of course, Artiles and Fullenkamp
denied making such statements, and they are supported in their
denials by Ms. Ernenwine, who attended at least some of the
meetings. They deny any discussion of the four terminated

22 It is difficult to give a precise number of the employee witnesses
who testified about the meetings at the Jade Restaurant, as a number of
these witnesses use several surnames and may use one or the other at
different times.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
employees, or any discussion about whether the Union was
necessary, unnecessary, useful, or obsolete. They claim that the
meetings were called to compare the AETNA insurance plan
with the Union’s insurance plan, and that they also answered
employee questions and tried to dispel rumors. Artiles does
acknowledge that the subject of the employees’ union dues was
raised by some employees. In answering the question, Artiles
claims that he merely indicated that union dues did not pay for
the employee benefits provided for under the terms of the con-
tract, such as medical insurance, but, rather, that the Respond-
ent provided that benefit by paying a certain amount per em-
ployee per hour for the coverage. It appears that at that meet-
ing, or another, union supporter Dexter Wray, whose name was
raised in connection with this issue, said that the union dues
were used for representation and also for “health benefits.”
I found Artiles, who testified on four or five separate occa-
sions, to be a straight, no nonsense kind of manager. He clearly
took great pride in his ability to operate a large hotel with many
employees. It was suggested by a number of witnesses that he
had a reputation as a “cleaner,” one who cleans up problems.
This may in fact be so, as he seems very competent, and based
on his testimony, very hard working. Further, I found him to be
circumspect and careful with his words, and somewhat gruff in
voice and manner. I will have more to say about this in the
analysis section of this decision.
On March 26, 2010, the Respondent announced the imple-
mentation, effective May 1, 2010, of the AETNA medical plan,
a standalone health care plan for the unit employees. (GC Exh.
94, p. 3.) This plan was only available to unit employees who
worked a minimum of 30 hours per week. It should be noted
that under the Taft-Hartley Trust Fund medical insurance plan,
as provided for under the expired collective-bargaining agree-
ment, unit employees who worked part time might still be able
to participate in the plan by pooling their hours from other un-
ion jobs where they were also covered by the same Taft-Hartley
Trust Fund. This “pooling of hours” would not be available to
the employees under the AETNA plan.
As these events were occurring, there was an ongoing effort
by a number of unit employees to decertify the Union as the
collective-bargaining representative of the hotel’s employees.
It is the General Counsel’s contention that the Respondent’s
managers were directly involved in obtaining signatures on the
decertification petition. Further, counsel alleges that the Re-
spondent took action that ensured that decertification was inevi-
table, including: implementing unilateral changes, which
demonstrated the Union’s impotence; and by accusing the Un-
ion of corruption.
As has been mentioned above, Stokes repeatedly raised the
issue during bargaining sessions of the transfer of pension
money from the Local Union’s Alaska Pension Fund, which
was financially secure, to the National Union’s Pension Fund,
which was apparently not financially secure. This issue was
repeatedly raised with the employees by the Respondent in the
form of posted flyers and notices. The Respondent claimed that
the unfunded vested liability of the National Pension Fund was
$47,400,000 while the amount of money that had been impru-
dently transferred to the National Fund from the Alaska Fund
was $174 million. (GC Exh. 94, pp. 4–5.) It is the contention
of counsel for the General Counsel as set forth in her brief that
the Respondent continually repeated these assertions in an ef-
fort to disparage the Union, causing the employees to become
disenchanted with the Union, and, thereby, willing to sign the
decertification petition.
Of course, the Respondent strongly disagrees, contending
that management had nothing to do with the circulation or sign-
ing of the petition. Counsel argues that the management of the
hotel had a duty to alert its employees of the financial jeopardy
their pension moneys were in, having been transferred to the
National Union Pension Fund. Further, the Respondent argues
that during contract negotiations, Stokes was raising legitimate
issues and concerns about the pension fund and those contribu-
tions to the fund from the Respondent required under the col-
lective bargaining agreement. The Respondent contends that
the decertification petition was simply an uncoerced, genuine
manifestation of the employees’ discontent with the Union. In
an effort to establish this at trial, counsel for the Respondent
attempted to call as witnesses literally every person who had
signed the decertification petition. While not every such person
was available, a great deal of time and effort was spent in ques-
tioning those persons who were available as to their individual
specific reasons for signing the petition, and whether they were
in any way pressured or coerced by agents of management into
so doing.
Ed Emmsley is an admitted supervisor and the hotel’s chief
engineer. Dexter Wray is an engineer in that department.
Wray testified on behalf of the General Counsel that in mid-
May 2010 he was called away from a job that he was working
on and back to the engineering shop office. Emmsley wanted
to see him and asked, “Are you going to sign?” Wray replied,
“Sign what?” To which Emmsley said, “The petition.” Appar-
ently Wray knew what petition Emmsley was referring to, and
he declined to sign.
According to the testimony of Wray, over the course of the
next 4 days, Emmsley tried on a number of occasions to get
him to sign the decertification petition. Wray claims that
Emmsley went so far as to solicit Wray’s friend, bellman Joel
Encabo, to convince him to sign the petition, but in each in-
stance Wray declined to do so. Thereafter, on May 18,
Emmsley sent Wray a “text” message that said, “Just sign it. I
will never put you on the spot. You know I’ll always cover
your black ass.” Wray testified that following the text message,
Emmsley told him that if he did not sign the petition that he
would “be one of the first ones to be let loose.” Finally being
worn down, Wray then signed the petition.
Admitted into evidence were several photographs of the
front screen of a cell phone that Wray identified as his personal
cell phone. The photographs showed that the message was
from “Ed,” and the screens showed in sequence, “Just sign it I
will never put u on the spot you” and next, “know I’ll always
cover your black ass.” (GC Exh. 23.) Wray testified that this
was the copy of the text message that he received from
Emmsley.
Emmsley denies asking Wray to sign the petition, and denies
that he ever sent Wray such a text message. Emmsley admits
discussing the advantages and disadvantages of supporting the
Union in the context of the health care benefits issue, but he
SHERATON ANCHORAGE 837
denies asking or suggesting to employees, including Wray, that
they sign the decertification petition. In denying that he sent
Wray such a text message, Emmsley testified that never uses
such language as “bad ass” in his everyday conversations.
Counsel for the Respondent refers to Emmsley in his brief as a
“devout, conservative man.” Further, counsel called
Emmsley’s wife, Janet E. Emmsley, to testify, and she denied
ever hearing her husband of 25 years use such language. An-
other employee witness called by counsel for the Respondent,
Joel Encabo, also testified that the term “black ass” is out of
character for Emmsley, who would allegedly never use such
language.
I closely observed the demeanor of both Ed Emmsley and
Dexter Wray while testifying. Wray held up well under ex-
tremely vigorous cross-examination from counsel for the Re-
spondent. He adhered to his story of Emmsley’s efforts to get
him to sign the decertification petition, and about the text mes-
sage that he received from Emmsley. He indicated that it was
not unusual for Emmsley to send him text messages during the
course of the work day, in addition to calls that he might re-
ceive from Emmsley on the radios that they both carried.
Wray’s testimony had the “ring of authenticity” to it.
Contrary to counsel for the Respondent’s strongly argued
views, I believe that the photographs of the text message alleg-
edly received from Emmsley constituted highly reliable, proba-
tive evidence. I do not subscribe to counsel’s various conspira-
cy theories of how Emmsley phone could have been clandes-
tinely used to send the text message to Wray’s phone, or that
the “chain of custody” was so improperly maintained as to
allow Wray’s phone to be tampered with. Further, I did not
view Emmsley denial as convincing. It seemed tepid at best. I
certainly would not dispute counsel’s characterization of Ed
Emmsley as a devote, conservative man, or Emmsley’s wife’s
statement that the use of profane language was not something
that he did. However, it is obvious that anyone on occasion
may do something totally out of character. Additionally, I con-
clude that Wray’s testimony was credible.23 As such, I believe
that Emmsley did persistently attempt to convince Wray to sign
the decertification petition, going so far as to send the text mes-
sage in evidence, as testified to by Wray.
Some mention should be made of Emmsley’s three children,
Janet, Jannice, and Ed Junior, who are employed at the hotel.
Janet and Jannice, who are PBS operators, were very active in
getting employees to sign the decertification petition. Ed Jun-
ior is a security guard and not in the bargaining unit. It is gen-
erally known that Janet and Jannice are Ed’s daughters. How-
ever, there was no probative evidence offered to establish that
any employee signed the petition when asked to do so by the
Emmsley children because of that family relationship and the
knowledge that Ed Emmsley senior was allegedly in favor of
the decertification effort.
Counsel for the General Counsel offered the testimony of a

23 Special consideration should be given to current employees who
testify contrary to the interests of their employer. Their testimony may
be considered credible since to so testify involves certain inherent risks
of future antagonism from their employer. See Classic Sofa, Inc., 346
NLRB 219, 219, 223 fn. 2 (2006).
number of employee witnesses who testified as to efforts alleg-
edly made by management to get them to sign the decertifica-
tion petition. Yanira Medrano is a housekeeper at the hotel,
who when testifying had been employed there for 6 years.
Lupita Mejia is Medrano’s landlady. Mejia is employed as the
hotel’s morning employee cafeteria attendant whose chief du-
ties include preparing and serving employees’ food and keeping
the employee cafeteria clean. She moves back and forth be-
tween the main kitchen and the employee cafeteria throughout
the course of the day. In May, Medrano got a call from Mejia.
According to Medrano, Mejia told her that Artiles had said that
people who didn’t support him and those who had not signed
the petition were going to be fired. Mejia also allegedly said
that Maria Hernandez, Elda Buezo, and Anna Rodriguez were
all going to be fired right away. The three named employees
were all well know union supporters.
Regarding this alleged statement by Mejia, I am of the view
that it constitutes inadmissible hearsay. It seems to be offered
for the truth of the matter asserted. Further, it does not consti-
tute an admission against interest of a party opponent, as I con-
clude that Mejia is not a supervisor or agent of the Respondent.
There is no evidence of record as would establish that Mejia
exercises any of the indicia of supervisory authority. She plain-
ly does not hire, fire, discipline, review, or manage any other
employees. Counsel for the General Counsel has failed to offer
any probative evidence in order to sustain her burden of prov-
ing that Mejia is a supervisor or agent under the Act.
After speaking with Mejia, Medrano allegedly confronted
Artiles in his office. She testified that they spoke for over an
hour. According to Medrano, she asked him directly whether
he had said that those employees who did not support him and
failed to sign the petition would be fired. Supposedly Artiles
responded in the affirmative. At her request, Artiles allegedly
explained what the petition was all about. He then questioned
why she supported the Union, and whether it had done anything
for her. She contends that he stated there would be no more
Union at the hotel, people who supported the Union would be
fired, and that he specifically mentioned three who would be
fired, Anna Rodriguez, Elda Buezo, and Maria Hernandez.
Later, she reviewed the petition and signed it.
Artiles denied any knowledge of the decertification petition
prior to the time that it was presented to management by the
employees, and denied any effort to get employees to sign such
a petition. Earlier in this decision I stated my view of Artiles
who testified extensively as a straight, no nonsense kind of
manager who was circumspect and careful with his words. I do
not believe that he spoke the words attributed to him by
Medrano. Her story does not ring true, and I do not find her
credible in this regard. Artiles is not a verbose individual. I
simply cannot envision an hour conversation where this busy
hotel general manager would take time from his schedule to
threaten a housekeeper with termination for not signing the
petition, and make threatening statements towards other em-
ployees, who he allegedly named. This would be totally out of
character for the man who testified before me on four or five
different occasions. I do not believe that the conversation oc-
curred as testified to by Medrano.
In her posthearing brief, counsel for the General Counsel ar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
gues that Chef Glynn Rydin forced several employees into
signing the petition. Rydin is an admitted statutory supervisor,
and based on the testimony of a number of witnesses, has ex-
pressed antiunion views. Jose Lantigua was hired as a dish-
washer by the Respondent on May 17, 2010. Before he actual-
ly started working for the Respondent, he had a conversation
with Chef Rydin. According to Lantigua, the day before his
employment began, during this conversation with Rydin, the
chef said, “I’m going to need you to sign over here because the
Union only takes money and you do not receive benefits.”
Lantigua signed the petition and was then sent to the human
resources department where he filled out an application, the
new hire paperwork, and was hired. He reported to work the
following day. Lantigua testified in an open and simple way,
seemed candid, and did not appear to exaggerate or embellish
his testimony. His recollection of events seemed good. Ac-
cordingly, I believe him to be credible and accept his version of
the events that led to his of signing of the decertification peti-
tion.
I do not believe the testimony of Cindy Mathers, hotel ban-
quet captain, who claims that Lantigua signed the petition in
her presence, not in the presence of the chef. The Respondent
uses Mathers as the “ubiquitous witnesses,” with the “outstand-
ing memory” that counsel for the Respondent trots out at every
opportunity to testify about some matter in dispute. I find her
testimony in general suspect, and her demonstrative enthusiasm
about repeatedly testifying peculiar and much less than credi-
ble. I will have more to say about her later in this decision.
A second employee witness, Esusebio Bristol, who is a
breakfast cook at the hotel, testified that he was called into
Rydin’s office and asked to sign a paper. Bristol’s primary
language is Tagalog, and he testified that he had no idea what
he was signing, or what it would mean. He signed the docu-
ment simply because the chef asked him to do so. The docu-
ment that he signed turned out to be the decertification petition.
Bristol seemed genuine in his testimony, was certain of the
incident, appeared relatively calm when testifying, and showed
no sign of stating anything other than the truth. Accordingly, I
find him credible and accept his version of these events.
Regarding Chef Rydin, I do not believe that he testified cred-
ibly regarding these events. Rydin testified that he had nothing
to do with the decertification petition, was unaware of its exist-
ence, did not discuss it with employees of the hotel, and made
no effort to get employees to sign the petition. To the extent
that his testimony is contradicted by other witnesses, I discredit
Rydin. He testified in a rather sullen, arrogant manner, leaving
me with the clear impression that he thought the proceedings to
be a waste of his time. His testimony, although not extensive,
appeared designed to simply refute any allegations that in-
volved him. He seemed tense, more so than would seem rea-
sonable for a person of his achievements, and his demeanor and
testimony left me with the impression that his recollection was
less than genuine.
Counsel for the General Counsel consistently argues that the
Respondent’s supervisors were instrumental in circulating the
decertification petition and/or in coercing employees into sign-
ing the petition. While there are some isolated incidents where
this did occur, as in the case of Chef Rydin and Ed Emmsley
Sr., for the most part counsel has failed to make this connec-
tion, principally because she has failed to show that the petition
circulators were in fact supervisors. Cindy Mathers was one of
the main petition circulators. She was also a favorite witness of
the Respondent, used repeatedly in an effort to refute any dam-
aging testimony or evidence regarding the circumstances of the
petition circulation. While I have noted my finding that in
general she was not particularly credible, I do not dispute her
testimony concerning her work duties and responsibilities. I do
not find her to be a supervisor during the time the petition was
being circulated.
Mathers started work at the hotel as a banquet server, moved
to the position of banquet captain, and remained at that position
until September 2010 when she was promoted to banquet man-
ager. Banquet captains at the hotel are responsible for setting
up and servicing banquet events according to the guests’ ban-
quet orders. This responsibility includes assigning banquet
servers, who were scheduled for work that shift, to perform
standard banquet tasks such as polishing silverware and glass-
ware, setting dining tables, and setting buffet tables. These are
routine tasks required of all servers from time to time, and for
which there is no monetary distinction. It is the responsibility
of the banquet captain to check on the readiness of the food,
and to confirm that guests receive the correct food ordered.
Banquet captains do not hire, fire, promote, discipline, conduct
performance reviews, schedule servers, or attend management
meetings. Counsel for the General Counsel failed to meet her
burden of establishing that the banquet captain exercises any of
the indicia of supervisory authority. The banquet captains re-
port to the banquet manager who holds the supervisory authori-
ty in the department. Although there was a period of time when
the hotel was without a banquet manager, the chef assumed that
role with help from the captains, including Mathers. As
Mathers held the nonsupervisory position of banquet captain at
the time that she helped circulate the petition, her participation
in that effort did not taint the petition.
Another principal petition circulator was Margerita Lucero.
She is designated as a housekeeping supervisor. Lucero reports
to Eduardo Canes, director of operations, who oversees the
housekeeping, front desk, and PBX departments. Canes is an
acknowledged statutory supervisor. Lucero is one of three
housekeeping supervisors, the most junior of the three. Ac-
cording to Canes, Lucero, and presumably the other two house-
keeping supervisors, acts as his “liaison” with the department’s
employees because she relays his instructions to them. He has
“made it clear to the housekeepers” that Lucero speaks for him.
Lucero does not clean rooms herself, but monitors the work of
the housekeepers, and assigns them rooms to clean in accord-
ance with the hotel’s computer system program. She also in-
spects the rooms, and if she is dissatisfied with a housekeepers’
work, she orders them to correct it. Lucero submits a daily
report of her inspection results to Canes and reports to him
regularly on the housekeepers’ performance. Canes does not
regularly check rooms himself, but, rather, relies on the house-
keeping supervisors. When he drafts the housekeepers’ annual
appraisals, Canes relies on the housekeeping supervisors’ re-
ports.
Lucero does not have the ability to assign the order in which
SHERATON ANCHORAGE 839
rooms are cleaned or the priority that those rooms must receive
because that is determined automatically by the hotel computer
system, which bases the determination on hotel reservations
and room vacancies. The housekeeping supervisors have no
input into scheduling work for the housekeepers, which deci-
sions are made by Canes alone. The housekeeping supervisors
do assign the housekeepers to those individual rooms that the
computer has shown need to be cleaned, but the room cleaning
assignments make no real difference as the rooms are all basi-
cally the same from floor to floor.
The housekeeping supervisors inspect the cleaned rooms ac-
cording to a checklist provided by Canes. Lucero has been
counseled by Canes for not properly inspecting the rooms. The
housekeeping supervisors and Canes carry radios and that is
how they keep in contact. Lucero testified that she does not
hire, fire, discipline, schedule, layoff, attend managers’ meet-
ings, or have any input into employee job reviews. Despite
what it says on her written job description, she testified that she
does not assemble the housekeeping schedule and does not
monitor the lunch period taken by employees.
The question of whether Lucero is a statutory supervisor is a
close one. Certainly, the fact that her job title refers to her as a
housekeeping “Supervisor” is not dispositive of this issue. In
the final analysis, she does not appear to exercise any of the
indicia of supervisory authority. Her assignment of rooms to
the housekeepers is simply routine, lacking any real independ-
ent judgment, and her inspection of those rooms for cleanliness
merely requires that she follow a check list prepared by Canes,
the true supervisor of the department.
Counsel for the Respondent correctly analogizes Lucero’s
position to that of a “housekeeping inspector,” over which the
Board has repeatedly found those individuals not to be supervi-
sors. See Lodgian, Inc., 332 NLRB 1246, 1247 (2000). Where
the “inspector” is clearly under the supervision of the “head
housekeeper,” as is the case with Lucero and Canes, the Board
has ruled that the “inspector” is not a supervisor. LaRonde Bar
& Restaurant, 145 NLRB 270, 272 (1963). Further, the Board
has held that the authority to inspect the cleanliness of a gues-
troom and direct the correction of errors is not equivalent to the
authority to discipline. Such individuals function as “lead-
men,” rather than supervisors. Marin Operating, Inc., 279
NLRB 481, 491–492 (1986). According to the Board, such
inspectresses were not supervisors as they “did not exercise any
independent judgment in disciplining room cleaners for their
deficiencies or that they otherwise exercise any supervisory
authority specified in Section 2 (11) of the Act.” (Id. at 492 fn.
14.) Based on the above, I conclude that counsel for the Gen-
eral Counsel has failed to meet her burden of establishing that
Lucero is a statutory supervisor. Therefore, her participation in
the circulation of the decertification petition did not taint that
petition.
Of all the General Counsel’s arguments that the decertifica-
tion petition was tainted by Employer participation, the one that
makes the least sense to me is that involving the family of Ed.
Emmsley Senior. As I noted earlier, in addition to Ed Emmsley
Sr., the hotel also employs his daughters, Janet and Jannice, as
PBX operators, and his son, Ed Emmsley Jr., as a security
guard.
From their testimony, it is clear that the Emmsley family is
close. After all, the family, including the adult children, all live
under one roof. Both Emmsley daughters were very active in
circulating the petition. I have already concluded that Ed
Emmsley Sr. was aware of the existence of the petition while it
was being circulated and attempted to coerce Dexter Wray into
signing the petition. In so doing, I discredited Emmsley’s deni-
als and found that he knew the petition was being circulated
and was pressuring employees to sign it. However, the two
Emmsley daughters deny telling their father about the petition,
and, while I am highly skeptical of their contention that the
family does not discuss hotel matters at home, there is no spe-
cific evidence to establish that Ed Emmsley Sr. learned of the
existence of the petition through them.
Even though Ed Emmsley Jr., as a security guard, was not a
bargaining unit employee, he agreed to help his sisters, and, to
that end, he suggested to a number of unit members who
worked the graveyard shift that they sign the petition. Further,
I am willing to find, as appears obvious from the record, that
many unit employees knew of the connection between the vari-
ous members of the family. However, I am at a loss to under-
stand what all this is supposed to mean. Counsel for the Gen-
eral counsel is apparently contending that members of the unit
who knew of the family connection signed the petition when
asked to do so by one of the Emmsley children because they
were afraid to offend the children of Ed. Emmsley Sr., a statu-
tory supervisor. The problem for the General Counsel is that
there is absolutely no evidence of such fear, no apparent basis
for such fear, and, frankly, no logical reason why any employee
would have such fear. Accordingly, I conclude that this theory
on the part of the General Counsel has no merit, and certainly
does not establish that the petition was tainted by management
conduct.
The Respondent’s managers and supervisors all deny any
knowledge that the decertification petition was being circulat-
ed. As they claim that they were unaware of its existence and
circulation, the managers and supervisors contend that they
were unable to stop its circulation from occurring during work-
ing time. I would, however, note that if it was a secret, it was
not a very well kept one. The principal employee petition cir-
culators, Mathers, Lucero, Mejia, and the Emmsley sisters ob-
tained the signatures of employees while at work, and were
often observed by other employees carrying copies of the peti-
tion around from place to place. Further, at least several em-
ployees testified about seeing a copy of the petition hanging on
the PBX room wall where the Emmsley sisters worked.
In any event, on May 20, 2010, the principal petition circula-
tors all went to the Respondent’s human resource office and
presented their decertification petition to Mary Villareal. Ac-
cording to her testimony, the employees handed her a 6-page
petition and told her that they believed it had been signed by a
majority of the unit employees, and that there were “probably
more signatures coming.” Villareal testified as to her surprise
at being presented with the petition. She gave Artiles the peti-
tion later that same day. Subsequently, on June 2 and 14, two
additional pages of employee signatures on the decertification
petition were turned into management. This brought the total
number of employee signatures on the petition to 110.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
Of course, it is the position of the Respondent that the peti-
tion was a manifestation of the employees’ unhappiness with
the Union. Counsel for the Respondent argues that this unhap-
piness was the result of the Union’s failure to bargain in good
faith and obtain a new contract; of the Union’s boycott, which
was hurting the unit employees financially; of the questionable
financial condition of the National Union Pension Fund, into
which unit employees’ pension contributions had been trans-
ferred; and of the employees’ unhappiness with the medical
insurance provided for under the terms of the expired collec-
tive-bargaining agreement when compared to the medical plans
that the Respondent was proposing. Additionally, the Re-
spondent contends that many employees had personal reasons
for signing the petition to decertify the Union. These reasons
ranged from a dislike for the way in which the union represent-
atives were conducted themselves, to an interest in using the
money that went to pay union dues on other things. In any
event, the Respondent vigorously denies that it committed any
unfair labor practices that led employees to become dissatisfied
with the Union, that it coerced employees into signing the peti-
tion, or that its managers and supervisors in any way supported
or encouraged the decertification effort.
The Respondent called approximately 68 petition signers as
witnesses. Counsel’s intend was obviously to show that the
petition signers each had their own reasons for signing the peti-
tion, and were uninfluenced and unaffected by the conduct of
the Respondent, its managers, and supervisors. For many of
those witnesses, and for some petition signers who were una-
vailable to testify, the Respondent introduced into evidence,
over the objection of counsel for the General Counsel, a sworn
declaration setting forth the employees’ individual reasons for
signing the decertification petition. These declarations were
taken by management sometime between the time the employee
signed the petition and the trial. The declarations contain what
is generally referred to as a “Johnnie’s Poultry”24 statement. It
is counsel’s contention that these declarations were offered to
the petition signers by management as a way of memorializing
the reasons why they individually signed the petition.25
Of course, counsel for the General Counsel takes the position
that the decertification petition was tainted by the Respondent’s
unfair labor practices, including its alleged bad-faith bargain-
ing, unlawful discharge, and discipline of union supporters,
unlawful statements made to employees, and coercion of and
unlawful assistance to petition signers. I will have much more
to say about these matters in the analysis section of this deci-
sion.
According to the Respondent, it made a good-faith analysis
of the signatures on the decertification petition, and came to the
conclusion that they were authentic, and represented a genuine
desire on the part of more than a majority of the unit employees
to be rid of the Union. Thereafter, in a letter dated July 3,

24 See Johnnie’s Poultry Co., 146 NLRB 770 (1964).
25 Much time was taken up at the hearing with the questioning of the
employee witnesses who signed the decertification petition and arguing
over the admissibility of the employee declarations. As will be appar-
ent in the analysis section of this decision, in my view, it is unnecessary
to set forth and discuss the individual reasons given by the petition
signers for their decision to sign the decertification petition.
2010,26 from Denis Artiles to Marvin Jones, the Respondent
informed the Union that it was withdrawing its recognition of
the Union as the exclusive collective-bargaining agent of the
hotel’s employees. In this letter Artiles makes reference to the
receipt of a decertification petition from over 50 percent of the
employees in the bargaining unit. The letter also makes refer-
ence to an earlier letter sent from one of the Respondent’s at-
torneys apparently to Jones dated July 2, 2010, withdrawing
recognition.
In his letter, Artiles advises Jones that he can no longer
communicate with Jones in Jones’ “now-extinguished capacity
as a representative of the employees.” Further, he informs
Jones that representatives of the Union will no longer be per-
mitted on the hotel’s property “for any purposes related to the
representative capacity [the Union] no longer possess.” The
majority of the letter consists of Artiles’ attempt to set forth the
history of the recent collective bargaining between the parties,
and what Artiles perceives to be the reasons why the unit em-
ployees sought to decertify the Union. He closes the letter by
referencing an incident the previous day in the employee cafe-
teria when allegedly Jones made some threatening statements to
employees. (R. Exh. 112.)
The incident referenced in Artiles’ letter apparently related to
a request from Artiles to Jones and Lawson on July 2 in the
employee cafeteria that they leave the property. Jones protest-
ed, making certain statements that Artiles contends constituted
threats. Further, it should be noted that since July 2, 2010, the
Respondent has failed to honor employees’ dues deduction
agreements, presumably on the basis that the Respondent con-
tends the Union is no longer the bargaining agent for any of its
employees.
During the hearing in this case, I permitted counsel for the
General Counsel to amend the complaint to add an allegation
that the Respondent, through Artiles, on or about July 31, 2010,
in the Jade Restaurant, denigrated the Union in the eyes of its
employees by telling employees that there had been no union at
the facility for several months, by telling employees that the
Respondent had to take the Union to court, and by threatening
the employees with discharge if they continued to support the
Union. (GC Exh. 62.) I permitted this amendment over the
vigorous objections of counsel for the Respondent on the basis
that the allegations raised in the amendment were substantively
closely related to those allegations in the original complaint and
subsequent amendments, were reasonably close in time to the
other events in question, and because the Respondent would not
be prejudiced as it would have ample time to defend against the
allegations raised in the amendment.
The Respondent raises a number of defenses to this allega-
tion, not the least of which is that no such meeting in the Jade
Restaurant was ever held. Artiles did not recall a meeting with
employees in July 2010 in the Jade Restaurant, but, rather only
those meetings discussed earlier that occurred in March 2010.

26 While some evidence and testimony indicates that recognition was
withdrawn on July 2, the letter itself is dated July 3, 2010. (R. Exh.
112.) It does appear that a letter withdrawing recognition was also sent
the day before, on July 2, from counsel for the Respondent. However, I
cannot locate a copy of that letter in the evidentiary record.
SHERATON ANCHORAGE 841
Fullenkamp testified that no more small-group meetings with
Artiles occurred after March 2010. Further, the evidence that
such a meeting did in fact occur at or near the date alleged is
very questionable.
The first employee to testify about such a meeting was Luz
Maria Zavala. Initially she testified that such a meeting was
held in the Jade Restaurant on July 30, 2009. She was able to
make this statement about the date, specifically the year 2009,
after being given permission to consult a type of diary that she
kept. Despite having access to her diary, when it became clear
under examination that such a date made no sense, she changed
her testimony to reflect the following year, 2010. In fact, dur-
ing cross-examination, when counsel for the Respondent had
access to the witness’ diary, he got the witness to admit that
there was no year recorded in her diary next to the notation July
30, and, in fact, the closest year to that reference was the date
September 30, 2009. In my view, Zavala’s testimony is hope-
lessly confused, and I must find that in this regard, it is entitled
to no weight.
Following Zavala’s testimony, employee Audelia Hernandez
testified about a meeting held in the Jade Restaurant with Ar-
tiles making a presentation and a number of employees in at-
tendance. She testified that Artiles, speaking in Spanish, said
that he and the hotel were antiunion, and that it had been two
months since there had been a union at the hotel. Allegedly,
Artiles then switched to speaking in English and said that if the
employees wanted a union, the door was open for them to
leave. According to Hernandez, Artiles changed back again to
Spanish and said that there were “ignorant people” spreading
the word that there was still a union at the hotel, but that was
not true. Finally, he allegedly said that the hotel had taken the
Union to court, and the hearing was going to start in 2 weeks.
Several other employees, Ana Rodriguez, Maria Hernandez,
and Elda Buezo also seemed to testify regarding this alleged
July 30 meeting, but their testimony only offered snippets of
the meeting, as testified to by Audelia Hernandez, and they
seemed to be confusing the alleged July meeting with those that
occurred in March 2010.
In fact, there really would have been no reason for Artiles to
have conducted such a July meeting. The new medical insur-
ance went into effect as of May 1, certain provisions of the
Respondent’s “final proposal” had been in effect for some peri-
od of time, and as of July 2, the Respondent was no longer
recognizing the Union as its employees’ collective-bargaining
representative. Also, it makes no sense that Artiles would hold
only one such meeting in July for a small group of employees,
when in March he had held approximately five meetings for
most of the unit employees. Accordingly, I conclude that coun-
sel for the Respondent’s argument has merit, and believe that it
is unlikely that such a meeting occurred in July 2010. Further,
I believe that the employees are likely confused, and the meet-
ing that they actually recall is one of those approximately five
meetings held between March 22 and 25, 2010.
To the extent that such a meeting was held in July or March
2010, I reiterate those comments that I made earlier in this de-
cision regarding the meetings held in March, and my character-
ization of Artiles. Of course, if in fact the alleged meeting was
held separately in July, then even assuming Artiles made cer-
tain of the comments attributed to him, some of those com-
ments would be harmless. For example, telling the employees
that there was no longer a union at the hotel would be arguably
correct. The Respondent had ceased recognizing the Union
based on the decertification petition, which had been filed sev-
eral months earlier. Of course, whether the Respondent had the
legal right to do so, remains to be seen, but that was at least the
Respondent’s position. Characterizing those who believed
otherwise as being ignorant was, in my view, simply an opinion
on the part of Artiles. Also, telling employees that the Re-
spondent was taking the Union to court, could have been a
reference to the Board hearing, which was scheduled to begin
in August, approximately 1 month later.
In any event, whether the July meeting took place at all, or
was really just remembrances by the employees of the subjects
discussed during the March 2010 meetings, I will have more to
say in the analysis section of this decision about the alleged
statements made by Artiles at these meetings.
IV. ANALYSIS AND CONCLUSIONS
As finally amended by the General Counsel, a number of
pleadings set forth the alleged violations of the Act. Those
include: the first complaint (GC Exh. 1(ee), dated May 28,
2010); the first notice of intent to amend the complaint (GC
Exh. 2, dated August 17, 2010); the second complaint (GC Exh.
3, dated August 17, 2010); and the second notice of intent to
amend the complaint (GC Exh. 62, dated September 27, 2010).
The Respondent timely answered all of the allegations in the
various pleadings of the General Counsel, denying the commis-
sion of any of the alleged unfair labor practices. I will be ad-
dressing in turn all of the allegations of the General Counsel in
her various pleadings.
A. Surface Bargaining/Impasse
The gravamen of this case is the General Counsel’s allega-
tion that the Respondent engaged in surface bargaining with the
Union with no genuine intent to reach agreement on the terms
of a successor collective-bargaining agreement; and, further,
that the Respondent implemented certain unilateral changes in
its employees’ terms and conditions of employment without
having reached a good-faith impasse in bargaining with the
Union.
1. Duty to bargain in good faith
Section 8(d) of the National Labor Relations Act provides:
“For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other
terms and conditions of employment . . . but such obligation
does not compel either party to agree to a proposal or require
the making of a concession.” Under Section 8(a)(5) it is an
unfair labor practice for an employer “to refuse to bargain col-
lectively with the representatives of his employees, subject to
the provision of Section 9(a).”
Longstanding Board precedent holds that the parties must
negotiate with the purpose of trying to reach an agreement.
California Girl, Inc., 129 NLRB 209, 218–219 (1960) (citing
NLRB v. American National Insurance Co., 343 U.S. 395
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
(1952)). In the cited case, the Supreme Court held that both the
employer and the union have a duty to negotiate with a “sincere
purpose to find a basis of agreement,” but that the Board cannot
force an employer to make a concession on any specific issue
or to adopt any particular position. The employer is, however,
obligated to make some reasonable effort to compose his dif-
ferences with the union. See U.S. Ecology Corp., 331 NLRB
223, 224–225 (2000) (citing Atlanta Hilton & Tower, 271
NLRB 1600, 1603 (1984)).
To fulfill the duty to bargain in good faith, the parties should
demonstrate “an open mind and a sincere desire to reach an
agreement . . . as well as a sincere effort to reach common
ground.” Montgomery Ward, 133 F.2d 676, 686 (9th Cir.
1943). Therefore, “mere pretense at negotiations with a com-
pletely closed mind and without a spirit of cooperation does not
satisfy the requirements of the Act.” Mid-Continent Concrete,
336 NLRB 258, 259 (2001), enfd. sub. nom. NLRB v. Hardesty
Co., 308 F.3d 859 (8th Cir. 2002) (quoting NLRB v. Wonder
State Mfg. Co., 344 F.2d 210 (8th Cir. 1965).
The determination of whether a party has complied with the
duty to bargain in good faith is a fact specific analysis and per
se standards have not been promulgated by the Board. Moreo-
ver, bad-faith bargaining typically must be inferred from a par-
ty’s conduct at or away from the bargaining table because in-
tent to frustrate the agreement is rarely articulated. “In order to
determine whether a party has bargained in good faith, it is
necessary to examine its overall conduct, both at the bargaining
table and away from it.” U.S. Ecology Corp., 331 NLRB at 225
(citing Atlanta Hilton & Tower, 271 NLRB at 1603; Overnight
Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938
F.2d 815 (7th Cir. 1991)).
It is necessary to analyze the Respondent’s “entire course of
conduct” to determine “whether it is lawfully engaged in hard
bargaining in an attempt to reach a contract it considers desira-
ble, or whether it merely went through the motions of collective
bargaining without any intention of entering into a collective
bargaining agreement.” U.S. Ecology Corp., 331 NLRB at 225
(citing Texas Coca-Cola Bottling Co., 146 NLRB 420, 429
(1964), enfd. 365 F.2d 321 (5th Cir. 1966)). The critical de-
termination is whether the Respondent was engaging in “hard
bargaining” as opposed to “surface” or bad-faith bargaining.
In Tomco Communications the Board stated: “The nature of
an employer’s proposal on . . . terms and conditions of a collec-
tive bargaining agreement are material factors in assessing the
employer’s motivations in the course of collective bargaining.
Rigid adherence to proposals which are predictably unaccepta-
ble to the union may indicate a predetermination not to reach an
agreement, or a desire to produce a stalemate in order to frus-
trate bargaining and undermine the statutory representative.”
Tomco Communications, 220 NLRB 636, 636 (1975) (citing
Stuart Radiator Core Mfg. Co., 173 NLRB 125 (1968)); Conti-
nental Insurance Co. v. NLRB, 495 F.2d 44 (2d Cir. 1974).
Further, the Board ruled that the employer had engaged in bad-
faith bargaining when it insisted on a broad management-rights
clause, a broad zipper clause, a no-strike provision, and a num-
ber of other proposals that were unfavorable to the union. The
Board promulgated a “self respecting union test,” which stated:
“It is difficult to believe that the Company with a straight face
and in good faith could have supposed that this proposal had
the slightest chance of acceptance by a self-respecting union, or
even that it might advance the negotiations by affording a basis
of discussion; rather, it looks more like a stalling tactic by a
party bent upon maintaining the pretense of bargaining.”
Tomco, supra at 637 (citing NLRB v. Reed & Prince Mfg. Co.,
205 F.2d 131, 139 (1st Cir. 1953), cert. denied 346 U.S. 887
(1953)). The Board found that by demanding these provisions,
the “last, best, and final offer” was nothing more than a demand
that the union abdicate virtually every right it would normally
possess to effectively represent the employees. (Id. at 637.)
However, the Ninth Circuit rejected this test under Tomco,
and held that the standard “comes perilously close to determin-
ing what the employer should give by looking at what the em-
ployees want.” Tomco, 567 F.2d 871, 883 (9th Cir. 1978).
Moreover, the Ninth Circuit concluded that the case demon-
strated “hard bargaining between two parties who were pos-
sessed of disparate economic power: a relatively weak union
and a relatively strong company.” 567 F.2d 871 (9th Cir.
1978), denying enf. of 220 NLRB 636 (1975).
In any event, in the case before me, even under the “self-
respecting union test,” the General Counsel’s claim of surface
bargaining would fail. The Respondent proposed numerous
substantive revisions to the expired collective-bargaining
agreement. Throughout negotiations, the Respondent reiterated
that these proposed changes were based on two principles,
namely an effort to make the hotel financially viable and profit-
able, and to bring the Sheraton into conformity with the other
hotel properties managed and operated by the Respondent.
While many of the proposed changes including sick days, vaca-
tion days, jury duty leave, the paid meal period, a new medical
insurance plan, and the number of rooms housekeepers must
clean were not as favorable to the unit employees and/or the
Union as they had been in the previous contract, the Respond-
ent did not propose unreasonable changes. Unlike in Tomco,
the Respondent did not propose contract changes that would
require the Union to “abdicate virtually every right” it would
normally possess. Instead, the Respondent throughout negotia-
tions clearly enunciated the reasons for its proposed changes,
namely the poor state of the economy and conformity with the
Respondent’s other properties.
Since the Ninth Circuit’s decision in Tomco, the Board has
adopted several factors to determine whether a party is engaged
in surface bargaining. Although there is not a bright line rule as
to whether a party is engaged in surface bargaining, the Board
has enumerated these factors to consider in analyzing whether a
party has engaged in unlawful surface bargaining or lawful hard
bargaining. Evidence of surface bargaining “include delaying
tactics, the nature of the bargaining demands, unilateral chang-
es in mandatory subjects of bargaining, efforts to bypass the
union, failure to designate an agent with sufficient bargaining
authority, withdrawal of already agreed-upon provisions, and
arbitrary scheduling of meetings.” Regency Service Carts, Inc.,
345 NLRB 671 (2005) (citing Atlanta Hilton & Tower, 271
NLRB at 1603).

Under Section 8(d) of the Act, the duty to bargain in good-
faith imposes an obligation to confer at reasonable times.
SHERATON ANCHORAGE 843
While the Board has not developed a hard and fast rule with
regard to the number, frequency, and duration of meetings be-
tween the parties, it looks to the parties’ conduct to determine if
there was a subjective willingness to reach an agreement. Insu-
lating Fabricators, 144 NLRB 1325 (1963), enfd. 338 F.2d
1002 (4th Cir. 1964). Unlawful delaying tactics can include a
delay in scheduling meetings27 and refusal to bargain beyond a
certain date.28 However, even where an employer tried to limit
the size of the union’s negotiating committee, recorded bargain-
ing sessions, cancelled several meetings, and imposed a 4-hour
limit to negotiating sessions, the Board did not find a violation
of the Act as to those matters. Inter-Polymer Industries, 196
NLRB 729 (1972), petition for review denied 480 F.2d 631 (9th
Cir. 1973). Also, in a case where the employer refused to meet
outside normal business hours due to his wife’s illness, even
though he did not tell the union about the illness, the Board did
not find a violation. Transit Lines, 300 NLRB 177 (1990),
enfd. 937 F.2d 598 (3d Cir. 1991). However, the Board has
found bad-faith bargaining where an employer engaged in a
lengthy pattern of delaying tactics including the failure to make
an economic proposal after a year of bargaining. United Tech-
nologies, 296 NLRB 571 (1989).
In the case before me, much of counsel for the General
Counsel’s contention that the Respondent engaged in surface
bargaining is premised on her argument that the Respondent
engaged in dilatory tactics in the scheduling of bargaining ses-
sions, did not wish to meet in person, but, rather, by telephone
or video conference, and proposed some meetings be held in
Seattle, rather than Anchorage where the hotel was located.
For the most part, I disagree, as the evidence shows otherwise.
The evidence tends to show that the Respondent did not en-
gage in any unreasonable delaying tactics, and certainly no
more so than the Union. The Respondent was the first party to
initiate contact, in an effort to conclude bargaining with the
Union before the contract expired. As I noted earlier in this
decision, I conclude that Stokes’ meetings with Jones and Es-
parza on October 27 and 28, 2008, initiated by the Respondent,
constituted two bargaining sessions. While the Union likely
did not intent it to be so, Stokes turned these two sessions into
bargaining negotiations. Further, I believe that the Respondent
was genuine in Stokes’ stated intention of negotiating a succes-
sor contract before the existing collective-bargaining agreement
expired on February 28, 2009. The Union seemed to have no
interest in doing this.
During the following months, the Respondent continued to
try to confer with the Union for collective-bargaining purposes.
However, Stokes’ entreaties were mostly met with nonrespons-
es. For all practical purposes, Jones engaged in “stonewalling,”
and, in fact, it was not until January 21, 2009, that Stokes
learned for the first time from Jones that Sawyer would be the
Union’s principal negotiator.
Throughout negotiations, the Respondent consistently pro-
posed negotiation dates for in person negotiations. Stokes has a

27 Torrington Extend-A-Care Employment Assn. v. NLRB, 17 F.2d
580 (2d Cir. 1994).
28 Kuna Meat Co., 304 NLRB 1005 (1991), enfd. 966 F.2d 428 (8th
Cir. 1992).
busy law practice, and it is accurate to say that he was in many
instances unavailable to meet on dates suggested by the Union.
However, no more so than Sawyer, a busy International Union
representative, who was on many instances unavailable to meet
on dates suggest by the Respondent. In any event, it is im-
portant to note that despite their busy schedules, the negotiators
were able to meet in person in Anchorage for bargaining pur-
poses on 10 separate dates: October 27 and 28, 2008; June 9,
10, 11, and 12, 2009; December 7 and 8, 2009; and March 10
and 11, 2010.
The evidence establishes that the Respondent did frequently
suggest to the Union that negotiations could also be conducted
by phone, video conference equipment, or in person in Seattle,
where Sawyer was located. Stokes made it clear that these
suggestions were offered as a way the parties could negotiate
more frequently and at a considerable cost savings to the par-
ties. As someone who made eight trips to Anchorage during
the course of this trial, I will take administrative notice of the
fact that plane travel to Anchorage from the lower 48 States is
time consuming and expensive. In any event, at no time did the
Respondent indicate that it would only bargain by some method
other than face-to-face in Anchorage. These other means of
negotiating were offered by the Respondent in an effort to sup-
plement face to face negotiations in Anchorage, and were not
offered on a “take it or leave it” basis.
The Union remained steadfast in its position that it wanted to
negotiate only in person and in Anchorage. While the Re-
spondent urged the Union to conduct negotiations in a cheaper
and easier way, the Union refused to do so, and the Respondent
acceded to the Union’s request to meet in Alaska. Although at
one point the Respondent suggested that it would extend the
contract in exchange for bargaining in a more accessible loca-
tion, the Respondent withdrew its quid pro quo offer shortly
thereafter and ultimately extended the bargaining agreement
and flew to Alaska for purposes of collective bargaining. In
fact, the terms of the existing contract were extended a number
of times from the expiration date of February 28 through Au-
gust 31, 2009, a period of 6 months.
When a party demands that negotiations occur at a certain
location, the Board will assess whether the location is unrea-
sonable, burdensome, or designed to frustrate bargaining and
whether the proponent has been intransigent. Sumerville Mills,
308 NLRB 425 (1992), enfd.19 F.3d 1433 (6th Cir. 1994). Of
course, the Union wanted to hold the negotiations in Anchorage
where the employee members of the bargaining committee
lived. This was reasonable and understandable. The Respond-
ent’s desire to hold negotiations by some means other than face
to face in Anchorage and, thus, save money and time was also
understandable and reasonable, especially in light of the Re-
spondent’s willingness to meet in Anchorage when the Union
would not alter its position. Once again, it should be recalled
that over the course of their bargaining history, the parties did
meet in Anchorage on ten separate dates. Accordingly, I do not
believe that the Respondent’s suggestion to the Union that they
might negotiate by some means other than face to face in An-
chorage constitutes evidence of surface bargaining.
Counsel for the General Counsel argued at trial and in her
posthearing brief that the Respondent’s conduct was dilatory,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
especially as it involved the conduct of Arch Stokes. In my
view, if there were dilatory tactics, both sides were equally at
fault, in which event the Board has held there may be no foun-
dation for a finding of bad faith. Dunn Packing Co., 143
NLRB 1149 (1963). As I indicated, the Union did not seem
interested in starting negotiations until just before the existing
contract expired, unlike the Respondent, which sent Stokes to
Anchorage to negotiate in October 2008, 4 months prior to the
expiration of the contract. Also, both Stokes and Sawyer had
very busy schedules, and both seemed equally conflicted with
other duties and had difficulty adjusting their respective sched-
ules so as to be able to meet in Anchorage.
Further, counsel for the General Counsel has taken up the
Union’s “mantra” and argues that Stokes’ manner of negotiat-
ing was to pontificate at great length about unrelated or only
marginally related subjects so as to waste precious bargaining
time and “eat up the clock,” making it progressively more un-
likely that the parties would have time to reach an agreement.
I spoke to this issue at great length earlier in this decision.
Stokes has a lot to say, and he likes to talk. He often repeats
himself. This is who he is. However, in doing so I do not be-
lieve that he is being intentionally dilatory. While Sawyer,
Lawson, Jones, and the other union negotiators may have been
exasperated with repeatedly hearing about the Colonial Wil-
liamsburg contract, the union schism, the alleged fraud in the
National Union Pension Trust Fund, or other favorite topics of
Stokes, these matters were, in my view, sufficiently related to
the issues under discussion in negotiations so as to be relevant,
even if in some cases only marginally so. Negotiators have
different styles, as in “different strokes for different folks.”
Stokes’ style of bargaining may not have pleased everyone, but
that was not his responsibility. In any event, I do not find his
style of negotiating deliberately dilatory, and conclude it does
not constitute evidence of surface bargaining or contribute to
that allegation.
While the Act does not require either party to come to an
agreement, the employer is obligated to make some reasonable
effort in some direction to compromise its differences with the
union. Reed & Prince Mfg. Co., 96 NLRB 850 (1951), enfd.
205 F.2d 131 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953).
Surface bargaining may be found where the employer will only
reach an agreement on its own terms and none other. Pease
Co., 237 NLRB 1069, 1070 (1978). See National Management
Consultants, 313 NLRB 405 (1993) (employer engaged in bad-
faith bargaining where it gave no reason for rejecting union’s
proposed collective-bargaining agreement, made no counter-
proposals, and made no attempt to schedule any bargaining).
Similarly, surface bargaining has been found where an employ-
er rejected a union’s proposal, tendered its own, and did not try
to reconcile the differences. Neon Sign Corp., 229 NLRB 861
(1977). See General Electric Co., 150 NLRB 192 (1964), enfd.
418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970)
(lead case on duty to bargain in good faith where employer
violated the Act by presenting the union with a take it or leave
it proposal among other bad-faith actions).
However, “adamant insistence” on a bargaining position is
not by itself a refusal to bargain in good faith. Atlanta Hilton &
Tower, 371 NLRB 1600 (1984) (citing Neon Sign Corp. v.
NLRB, 602 F.2d 1203 (5th Cir. 1979)). “A party is entitled to
stand firm on a position if he reasonably believes that it is fair
and proper or that he has sufficient bargaining strength to force
the other party to agree.” Atlanta Hilton citing NLRB v. Ad-
vanced Business Forms Corp., 474 F.2d 457, 467 (2d Cir.
1973). The Board has even held that an employer’s take it or
leave it position is not bad faith where the union refuses to
compromise on any of its demands or pursue effective negotia-
tions. Romo Paper Products Corp., 208 NLRB 644 (1974).
On the other hand, if an employer proposes a contract that is
predictably unacceptable, and evidences an inflexible attitude
on major issues and offers no reasonable alternatives, the Board
has found a violation of the good-faith obligation. Brownsboro
Hills Nursing Home, 422 NLRB 269 (1979); NLRB v. Wright
Motors, 603 F.2d 604 (7th Cir. 1979). The Board has empha-
sized that simply because the union finds the proposal to be
undesirable, the employer has not necessarily violated the Act;
instead, the Board measures whether the proposals nullify the
union’s ability to act as the employees’ representative. Reich-
hold (II), 288 NLRB 69 (1988), review denied in relevant part
sub nom. Teamsters Local 515 v. NLRB, 906 F.2d 719 (D.C.
Cir 1990), cert. denied 498 U.S. 1053 (1991), supplementing
227 NLRB 639 (1995) (Reichhold (I)). The Board has found
surface bargaining where the employer’s proposal “would have
left the union and the employees with substantially fewer rights
and protections than they would have had without any contract
at all.” Regency Service Carts, Inc., 345 NLRB 671, 675
(2005). Still, the General Counsel’s burden is high in proving
that the Respondent’s proposals were so unfavorable or unrea-
sonably regressive as to strip the Union of its representational
capacity.
In the matter before me, from the beginning of negotiations
and throughout the process, the Respondent informed the Union
that it intended to pursue a contract that was fiscally responsi-
ble and that would bring the hotel into compliance with the
Respondent’s policies. In fact, the Respondent proposed a
contract that was similar to the previous contract, except that it
proposed a number of items intended to either save money, in
what was clearly a very difficult financial climate, and/or to
conform its practices with the other hotels that the Respondent
operated.
One of the most contentious issues separating the parties was
the number of rooms the housekeepers were required to clean
each work shift. Under the terms of the expired collective-
bargaining agreement, housekeepers were required to clean 15
rooms per shift. However, Stokes made it clear from early in
the negotiations that the Respondent proposed increasing this
number to one more in line with the requirements at the Re-
spondent’s other properties, and as cost savings measure. At
the outset of negotiations, the Respondent proposed that the
housekeepers clean 18 rooms, but, subsequently, in its July 17,
2009 proposal, the Respondent deducted a room and amended
its proposal to 17 rooms. (GC Exh. 38, art. 9, sec. 51.) This
“concession” on the part of the Respondent was more than the
Union was willing to do. The Union remained adamant that the
number of rooms stay at 15, as provided for in the expired con-
tract. It was not until December 8, 2009, in its written “Non-
Proposal” that the Union amended its position to offer 16
SHERATON ANCHORAGE 845
rooms cleaned the 1st and 2d years of the contract, reverting
back to 15 rooms cleaned in the 3d and 4th years of the con-
tract. (R. Exh. 47.) Although this issue was discussed at
length, the parties never came to an agreement, nor was there
ever any indication that they would come to an agreement.
Another contentious issue concerned the employees’ meal
periods. Under the expired contract, the employees were paid
for their half-hour lunchbreak, and they were provided lunch by
the Employer free of charge. Consistent with its stated desire
to reduce costs and enter into a financially viable contract, the
Respondent proposed that the 30-minute meal period be unpaid
and that the employees pay some amount, although nominal,
for the food provided at lunch. However, the Union remained
steadfast that the meal period be paid, and that the food be pro-
vided free of charge. The parties were deadlocked on this issue
and remained so, as neither party changed its position.
A further issue of contention between the parties was that of
the Taft-Hartley Pension Plan as provided for in the expired
contract. As I have noted, this was a matter of great concern to
Stokes, who spoke about it frequently. He repeatedly stated the
Respondent’s concern that the plan was no longer financially
viable, since the Local Union’s Alaska Pension Plan Fund had
been merged into the National Union’s Pension Plan Fund. On
July 17, 2009, the Respondent proposed that the Taft-Harley
Pension Plan be replaced with a stand-alone 401(k) plan with
100-percent employer matching of employee contributions up
to 3 percent, and 50-percent matching of employee contribu-
tions between 3 and 5 percent. (GC Exh. 38.) However, the
Respondent subsequently dropped its proposal for a stand-alone
plan, when in its August 21, 2009 “final proposal” it acquiesced
in the Union’s insistence that the existing Taft-Hartley Pension
Plan remain in effect. (R. Exh. 69.) Although Stokes conceded
that the Respondent had “looked at the numbers” and realized
withdrawing from the Taft-Harley Trust would cost the Re-
spondent more than a 401(k) plan would save, it does seem to
have been a major concession on the part of the Respondent, in
light of the Union’s insistence on retaining the Taft-Harley
Pension. However, it should be noted that despite the Re-
spondent’s “concession” on this issue, Stokes continued to
voice concerns about the financial viability of the Taft-Hartley
Pension Plan, and as late as the negotiation sessions on March
10, 2010, was threatening to file an ERISA action against the
plan trustees.
Regarding the issue of the Taft-Hartley Health and Welfare
Plan (the medical insurance plan), the parties were in serious
conflict. The Union proposed retention of the existing plan, but
the Respondent was insistent that a less expensive medical
insurance plan be obtained. In its August 21, 2009 “final pro-
posal,” the Respondent had proposed a CIGNA plan. However,
on March 10, 2010, the Respondent proposed for the first time
an AETNA plan, which Stokes argued was the best medical
insurance available for the money, and which he represented
the Respondent had only been able to locate since its August
21, 2009 “final proposal.” In any event, the Union never
agreed to any medical insurance plan other than the Taft-
Hartley Plan, as existed in the expired collective-bargaining
agreement.
There were also significant disagreements between the par-
ties over employee leave issues. Under the expired collective-
bargaining agreement, employees received time and a half for
working on nine holidays and the employee’s birthday. Addi-
tionally, if the holiday and birthday fell on the same day, the
employee would be paid twice his or her rate of pay. The Re-
spondent sought to change this policy by eliminating two of the
enumerated holidays as well as the birthday. Subsequently, on
July17, 2009, the Respondent improved its offer by adding 1
additional day off, and having the Union select the individual 8
days off. However, the Union remained steadfast in keeping
the provisions consistent with the expired agreement and did
not change its position throughout negotiations.
Under the expired collective-bargaining agreement, employ-
ees received up to 12 days per year of paid sick time. Employ-
ees received $42 per day of sick leave under the expired con-
tract. Consistent with their position to cut costs, the Respond-
ent proposed fewer sick days. The Union proposed an increase
in the rate paid per sick day to $55. The parties ultimately
agreed on a rate of $51 per sick day.
The Respondent also proposed reductions in funeral and jury
duty leave. Under the expired contract, employees received 4
days of paid funeral leave, which the Respondent sought to
reduce to 3 days. The Union proposed that the provision from
the expired collective-bargaining agreement be adopted in full.
The expired collective-bargaining agreement also allowed for
20 days of paid jury duty leave, which the Respondent pro-
posed be reduced to 5 days of paid leave. The Union proposed
that no changes be made to the provision. Although the parties
negotiated over these provisions, they never came to an agree-
ment.
Regarding wages, it is interesting to note that the parties
spent relatively little time negotiating over this issue. The con-
sensus of opinion seemed to be that this issue would not present
a problem, once the more contentious issues were resolved.
While there is some confusion in the record, it appears that the
Respondent’s position for most of the period during negotia-
tions and certainly through the final bargaining sessions was to
have a wage freeze through the term of the contract. The Un-
ion’s proposal, in its “Non-Proposal” of December 8, 2009, was
for a wage freeze only during the first year of the contract, to be
followed by increases of 2 percent in each of the next 3 years,
or the statutory minimum wage increase if greater. (R. Exh.
47.) While one might anticipate that wages would be a conten-
tious issue, this apparently was not so, as both parties under-
stood the dire financial situation in the hotel industry during
this period.
As the case law makes clear, there is a fine line between hard
bargaining and bad-faith or surface bargaining. In my view,
both parties were engaged in hard bargaining. The Respondent
and the Union were simply unable to come to an agreement on
a number of contractual issues. These issues were extensively
discussed over an extended period of time. In the course of 10
negotiation sessions held face to face in Anchorage, Alaska,
they remained intractable. Yet, I do not get the sense that the
Respondent was any more adamant in its negotiating positions
than was the Union. The Respondent did not seek through the
negotiation process to subvert the Union’s ability to effectively
represent the unit employees. While these proposals by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
Respondent were not as favorable to the Union and unit em-
ployees as those contained in the prior contract, they were cer-
tainly not so regressive as to strip the Union of its representa-
tional duties, nor to make the Union’s acceptance of them seem
unconscionable. It is worth noting that none of the Respond-
ent’s proposals included a restrictive management-rights clause
or the like, which would tend to limit the Union’s ability to
represent the unit employees.
The Respondent continuously cited its intent to create a fis-
cally responsible contract, and that the provisions of the expired
contract levied too many costs on the Employer. Throughout
negotiations the Respondent carefully cost valued the individu-
al contract proposals to determine their long-term economic
impact, which was entirely consistent with their position to
obtain a fiscally responsible contract. Rather than giving the
Union one proposal and refusing to accept any other terms, the
Respondent altered its position, principally in regard to the
number of rooms to be cleaned by the housekeepers and the
retention of the Taft-Hartley Pension Plan, without any signifi-
cant reciprocal movement by the Union. The Respondent never
adopted a “take it or leave it attitude,” until it seemed that no
further movement on significant issues was a reasonable possi-
bility.
It is important to note that the Respondent agreed to the Un-
ion’s request that the contract be extended, which was done a
number of times through August 2009. This was accomplished
despite the Respondent’s contention that it needed economic
relief from the terms of the existing agreement. I am of the
view that the Respondent agreed to these extensions with the
genuine expectation that given more time, the parties would in
fact reach agreement on the terms of a new contract. Further,
the parties did meet a total of ten times in Anchorage and en-
gaged in lengthy contract negotiations. I reject the General
Counsel’s contention that the Respondent insisted on negotiat-
ing in other ways such as by video conference equipment or by
telephone, or in locations other than Anchorage. The evidence
shows that these were suggestions, not demands, and when
rejected by the Union, the Respondent acquiesced. I also reject
the General Counsel’s contention that the Respondent withdrew
previously agreed upon “tentative agreements” (TAs). The
Union and the Respondent merely used different methods of
tracking such TAs. While this resulted in some confusion as to
which items had been tentatively agreed upon, I see no evi-
dence that the Respondent was acting in bad faith.
Accordingly, I am of the view that the Respondent, during
the course of negotiations in this case, did not engage in surface
bargaining. Although the Respondent was firm in its positions,
it had every right to be so, and the Union took a similar posi-
tion. This constitutes hard bargaining. The Act cannot compel
the parties to reach an agreement, but only to bargain in good
faith, which, I believe, is precisely what the Respondent did, at
least initially.
Therefore, I hereby recommend the dismissal of paragraphs
7(b)(i), (ii), and (iii) as alleged in the first complaint. Further, I
conclude that the Respondent did not unlawfully insist that the
parties bargain telephonically or by way of videoconference or
like electronic media; or insist that the Union provide a pro-
posal before bargaining face to face; or insist that before bar-
gaining the Union prove that it was the legitimate collective-
bargaining representative of the unit employees. Therefore, I
also hereby recommend the dismissal of paragraphs 8(a)(i), (ii),
(iii), 8(b), (c), and (d) as alleged in the first complaint.
2. Impasse/unilateral changes
According to the Board, the test for impasse is “the point in
time of negotiations when the parties are warranted in assuming
that further bargaining would be futile. ‘Both parties must be-
lieve that they are at the end of their rope.’” A.M.F. Bowling
Co., 314 NLRB 969 (1994), enf. denied 63 F.3d 1293 (4th Cir.
1995). Impasse is determined by assessing the totality of the
circumstances. Grinnell Fire Protection Systems Co., 328
NLRB 585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert.
denied 534 U.S. 818 (2001).29
In Taft Broadcasting Co., 163 NLRB 475 (1967), the Board
enumerated some factors for considering whether impasse has
occurred: “Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the parties
in negotiations, the length of the negotiations, the importance of
the issue or issues as to which there is disagreement, the con-
temporaneous understanding to the parties as to the state of
negotiations are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.” As impasse is a
matter of fact, the Board has also enumerated additional factors
to be considered including: whether there has been a strike or
discussion about one,30the fluidity of the parties’ positions,31
continuation of bargaining,32 union animus,33 nature and im-
portance of issues and the extent of differences,34 bargaining
history,35 willingness to consider the issue further,36 duration of
break between negotiation sessions,37 number and duration of

29 In that case, the Board found that the parties were not at impasse
when the employer asserted impasse after four sessions and the union
had not offered concessions yet and expressed its intent to be flexible.
See also PRC Recording Co., 280 NLRB 615, 635 (1986) (“The deter-
mination of whether impasse has been reached, a determination of the
mental state of the parties and thus, a highly subjective inquiry is a
strictly factual judgment, and bargaining devices or scare words such as
‘impasse or deadlock’ used by parties are legal conclusions not binding
on the Board.”)
30 Marriott In-Flite Services, 258 NLRB 755, 766 (1981).
31 Duane Reade, Inc., 342 NLRB 1016, 1033 (2004) (no impasse
where parties were still making consistent movement to come to an
agreement).
32 Northwest Graphics, 343 NLRB 84 (2004).
33 CJC Holdings, 320 NLRB 1041 (1996).
34 Calmat Co., 331 NLRB 1084, 1097 fn. 49 (2000) (when a single
issue is “of such overriding importance” to the parties that the impasse
on that issue frustrates the progress of further negotiations there may be
overall impasse).
35 A.M F. Bowling Co., 314 NLRB 969.
36 Marriott In-Flite Services, 258 NLRB 755 at 765.
37 Presto Casting, 262 NLRB 346 (1982), enfd. in part 708 F.2d 495
(9th Cir. 1983), cert. denied 464 U.S. 994 (1983) (impasse after two
meetings); J.D. Lunsford Plumbing, Heating & Air Conditioning, 254
NLRB 1360 (1981), affd. sub nom. Sheet Metal Workers Local 9 v.
NLRB, 684 F.2d 1033 (D.C. Cir. 1982) (impasse after three meetings
within 1 month in the face of no movement by union). But see Mar-
riott In-Flite Services, 258 NLRB 755 (no impasse after 37 meetings
but neither party had discussed wages and 26 items were still open and
had not been discussed).
SHERATON ANCHORAGE 847
bargaining sessions,38 and any other actions inconsistence with
impasse.39
When impasse is reached, the duty to bargain does not ter-
minate, but, rather, is suspended.40 The employer may not take
any action which subverts the bargaining process,41 but upon
impasse the employer may make unilateral changes in working
conditions.42 However, if unilateral changes are made before a
legitimate impasse, the Board will find a violation of the Act.43
Additionally, any unilateral changes cannot be “substantially
different or greater than any [offers] which the employer . . .
proposed during the negotiations.”44 Nor can an employer
implement changes with regard to subjects that have not been
bargained over.45 Additionally, although employers may im-
plement their final offer upon impasse, the employer may not
implement a proposal granting it total control precluding any
participation by the union.46 An overall impasse must be
reached before implementation of any changes.47 Similarly, if
provisions have been tentatively agreed upon, the employer
may not implement any changes that are inconsistent with the
agreements.48
As is reflected earlier in this decision, on August 21, 2009,
the Respondent sent the Union its “final proposal.” The cover
letter accompanying the proposal stated, “Please understand
that this is the employer’s final position. Considering the cur-
rent economic climate, any further concessions by the employer
would be financially untenable.” It is important to note that
even though the letter stated that this was the Respondent’s
final proposal, Stokes, the signed author of the letter, said that
the Respondent was “open to discussing the proposal via
phone, email, text message, teleconference, video conference,
Skype, or through any other medium [the Union would]
choose.” (R. Exh. 58.)
Following the receipt of the Respondent’s final proposal,
there were exchanges of communications between the parties,
but no substantive negotiations for months. On October 6,
2009, Stokes sent Sawyer a long letter informing him that in the
Respondent’s opinion, the parties “have reached bargaining

38 American Automatic Sprinkler Systems, 323 NLRB 920 (1997)
(no impasse after three meetings where employer misled the union).
39 Airflow Research & Mfg. Corp., 320 NLRB 861 (1996).
40 A.M.F. Bowling Co., 314 NLRB 969 (1994), enforcement denied,
63 F.3d 1293 (4th Cir. 1995).
41 Central Metallic Casket Co., 91 NLRB 572, 573 (1950) (impasse
does not absolve the employer of the duty to take no action which may
be interpreted as disparagement of the collective-bargaining process or
which amounts to withdrawal of recognition).
42 A.M.F. Bowling Co., supra.
43 Id.
44 PRC Recording Co., 280 NLRB 615, 635 (1986) (citing Taft
Broadcasting Co., 163 NLRB at 478).
45 Lou’s Produce, 308 NLRB 1194, 1195 (1992), enfd. 21 F.3d 1114
(9th Cir. 1994) (unilateral implementation of a health insurance policy
that had not previously been bargained for found to be a violation).
46 McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d
1026 (D.C. Cir. 1997); KSM Industries, 336 NLRB 133 (2001), modi-
fied 337 NLRB 987 (2002).
47 Bottom Line Enterprises, 302 NLRB 373 (1991), enfd. 15 F.3d
1087 (9th Cir. 1994).
48 Lou’s Produce, supra.
impasse in the negotiations.” Further, Stokes went on to state
that, “[t]he parties’ respective positions on key issues have not
changed throughout the course of negotiations and it [is] appar-
ent that further bargaining would be futile.” Stokes then went
into great detail as to his view of the parties bargaining history.
He set forth the “Key Impasse Issues.” Those issues were: (1)
The Health and Welfare Plan, where the Respondent had pro-
posed eliminating the Union’s Taft-Hartley Trust and replacing
it with its own corporate medical insurance CIGNA plan; (2)
the meal periods, where the Respondent had proposed eliminat-
ing the employer paid 30-minute meal period; (3) arbitration,
where the Respondent had proposed a grievance and arbitration
procedure that ended in final and binding arbitration; and (4)
room attendant requirements, where the Respondent had pro-
posed increasing the minimum room attendant cleaning re-
quirement from 15 to 17 rooms (the Respondent having les-
soned its original proposal of 18 rooms).
Stokes concluded the letter by stating that the Respondent’s
“final offer, presented on August 21, 2009, remains open. . . .
The Employer is ready, willing and able to discuss the merits of
its final proposal with the Union. However, the proposal stands
as the Employer’s final offer. Thus, unless the Union indicates
it is willing to accept the August 21, 2009 proposal, in its en-
tirety, the parties have reached impasse.” (Jt. Exhs. 2–00104–
00110.)
By letter dated October 9, Sawyer replied that the Union
“strongly disagree[s] with [Stokes’] assertion that the parties
are at impasse in bargaining. To the contrary, [the Union] be-
lieve[s] that there is a great deal of room for further progress in
our negotiations.” (Jt. Exh. 2–00111.)
As had become their habit, the parties communicated back
and forth, “Tit for Tat,” regarding which party was responsible
for the lack of progress in negotiations. By letter dated October
9, Stokes advised Sawyer that “negotiations between [the Un-
ion] and [the Employer] are at impasse and have been for sev-
eral weeks.” Further, he said that the Respondent “desires to
maintain its relationship with [the Union] and will continue to
recognize [the Union] as the bargaining representative of its
employees. However, [as the parties were at impasse] . . . [the
Respondent] will implement the provisions of its final offer . . .
[as of] October 17, 2009.” (Jt. Exh. 2–00112.)
Stokes also sent a letter dated October 12, 2009, to Sawyer in
which he continues to insist that the parties are at impasse, and
there is no indication that further bargaining will resolve any of
the remaining issues separating the parties. Stokes repeats the
history of the face-to-face negotiations between the parties and
acknowledges a refusal on the part of the Respondent to engage
in any further face-to-face negotiations unless the Union pre-
sents an updated proposal to the Employer.
I believe that at this point the parties had in fact reached a
genuine impasse in negotiations. They had been bargaining for
approximately 1 year, and had meet on six separate dates (Oc-
tober 27 and 28, 2008, and June 9, 10, 11, and 12, 2009) for
face-to-face negotiations in Anchorage. To date, there had
been only limited movement in their respective positions, with
the Respondent no longer insisting that the contributions to the
Taft-Hartley Pension Plan be discontinued and lowering its
room cleaning minimum from 18 to 17 rooms. However, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
Respondent remained adamant that the room attendant mini-
mum be raised from 15 to 17 rooms, that the Employer no
longer be required to provide a paid 30-minute lunch period for
the employees, insisting that free lunches be eliminated, and
that the Taft-Hartley Medical Insurance Plan be replaced with a
corporate CIGNA medical insurance plan. The Union was
equally adamant in opposing all of these proposals from the
Respondent.
The parties had discussed and bargained over these issues at
length and had been unable to come to an agreement. They
were essentially at deadlock. Since its “final offer” of August
21, the Respondent had made it clear to the Union in various
communications that its stance was firm. Stokes repeatedly
invited the Union to make a compromise proposal, but the Un-
ion had not done so. Stokes make it clear to Sawyer in these
communications that the Respondent needed to see some
movement or proposal by the Union before meeting again,
because he felt that further meetings would be pointless if they
would not result in progress. Still, the Union made no offers or
proposals, merely stating its position that the parties were not at
impasse and should continue to negotiate.
Having declared an impasse, the Respondent proceeded in
mid-October to implement certain provisions of its last pro-
posal, that of August 21, 2009. The evidence is uncontested
that before implementing changes to the expired collective-
bargaining agreement, the Respondent, as the “initiating party,”
did not provide the Federal Mediation and Conciliation Service
(FMCS) with 30 days’ written notice of its intention to do so
and/or of the existence of a dispute with the Union, as required
under Section 8(d)(3) of the Act. It is well established Board
law that: “Failure of a party desiring to terminate or modify a
collective-bargaining agreement to give appropriate notice [to
the FMCS] under Section 8(d)(3) precludes it from altering
terms or conditions of the collective-bargaining agreement or
engaging in a strike or lockout to enforce its proposed changes.
This proscription exists notwithstanding that the expiration date
of the agreement has passed.” Petroleum Maintenance Co.,
290 NLRB 462 (1988), citing Weathercraft Co. of Topeka, 276
NLRB 452, 453 (1985), enfd. 832 F.2d 1229 (10th Cir. 1987).
By implementing in mid-October certain provisions of its
last proposal, that of August 21, 2009, the Respondent violated
Section 8(d)(3) of the Act in failing to notify the FMCS prior to
implementation. Also, by unilaterally changing those terms
and conditions of the collective-bargaining agreement without
giving the requisite notice to the FMCS, the Respondent violat-
ed Section 8(a)(1) and (5) of the Act. Days Hotel of Southfield,
306 NLRB 949 (1992).
Therefore, I find that the Respondent violated Section 8(a)(1)
and(5) of the Act by failing to provide the FMCS with the req-
uisite 30 days notice, as alleged in paragraphs 7(b)(v), (c),
10(a)(i), (ii), (iii), and (d), and 18 of the first complaint.49
Whitesell Corp., 355 NLRB 649 (2010), confirming 352 NLRB
1196 (2008), enfd. 638 F.3d 883 (8th Cir. 2011).
On October 17 and 18, 2009, the Respondent held two meet-

49 During the hearing, counsel for the General Counsel withdrew all
references in the first complaint to the “Alaska Labor Relations Agen-
cy.”
ings for the unit employees during which managers informed
the employees of certain changes that would take place imme-
diately. Among those changes were the requirements that
housekeepers clean 17 rooms per shift, that employees clock in
and out for lunch, and that employees who eat the food pre-
pared in the cafeteria pay $1 for the meal.50 However, it is
important to note that certain other proposals as contained in
the Respondent’s “final proposal” of August 21, including the
CIGNA medical plan, were not implemented.
In reality, these unilateral changes were the result of the par-
ties being at an impasse in negotiations. The parties had bar-
gained extensively over these issues. The Respondent had
taken a consistent position that it required economic relief, and
its proposals were designed to achieve that relief. The Re-
spondent made it clear to the Union that it had no intention of
moving from its proposal of August 21. The Respondent was
refusing to engage in further bargaining unless the Union made
some movement on these economic issues, as any such bargain-
ing would be futile. The Union made it clear that the economic
concessions that the Respondent was demanding were unac-
ceptable, and the Union made no movement to compromise.
As of October 2009, there was no evidence that would suggest
that either party was going to budge from its bargaining posi-
tion, nor did they exhibit any flexibility whatsoever. Accord-
ingly, I find that the parties were at a collective-bargaining
impasse in negotiations, under which the Respondent would
have had the legal right to put into effect certain of those pro-
posals that it had been advocating for some time, but for the
fact that it had failed to give the FMCS the requisite notice
required under Section 8(d)(3) of the Act. Since the Respond-
ent did not provide the FMCS with the required notice, it could
not lawfully implement those proposals over which the parties
had otherwise reached impasse.
Therefore, I find that by unilaterally implementing on about
October 17, 2009,51 certain provisions of its last proposal, the
Respondent was engaged in a refusal to bargain with the Union
under Section 8(a)(1) and (5) of the Act, as alleged in para-
graphs 7(a), (b)(ix), (c), and 10(a)(i), (ii), and (iii) of the first
complaint. However, as I have also concluded that the Re-
spondent did not engage in surface bargaining prior to imple-
menting the unilateral changes in question, and that the parties
were in fact at impasse, which, but for the Respondent’s failure
to properly notify the FMCS, would have permitted the imple-
mentation of these changes, I shall recommend to the Board
that paragraph 7(b)(i) of the first complaint be dismissed.
Of course, the “saga” does not end here. Upon impasse, the
duty to bargain is only suspended. A.M.F. Bowling Co., 314
NLRB 969 (1994), enf. denied 63 F.3d 1293 (4th Cir. 1995);
Philip Carey Mfg. Co., 140 NLRB 1103 (1963). Legal im-
passe may end suddenly. Gulf States Mfg. v. NLRB, 704 F.2d
1390, 1398–1399 (5th Cir. 1983). Despite the fact that on Oc-

50 The evidence is insufficient to establish, as alleged in subpar.
10(a)(iv) of the first complaint, that the Respondent implemented a
unilateral change requiring employees to get advance written permis-
sion in order to use hotel facilities.
51 While the complaint also mentions the date of March 19, 2010,
there is no evidence in the record of any unilateral changes being made
by the Respondent on that date.
SHERATON ANCHORAGE 849
tober 17, 2009, the Respondent implemented certain proposals
from its final offer, the parties returned to the bargaining table.
Although not entirely clear to me, it appears that at the Re-
spondent’s request the parties met face to face in Anchorage on
December 7 and 8, 2009. Stokes made it clear that he did not
want to jeopardize the Respondent’s “legal position” on im-
passe, but would be willing to discuss certain of the substantive
differences between the parties in “sidebar conferences.” Fur-
ther, he expressed disappointment that the Union had not put
together a new comprehensive contract proposal.
In my view, nothing that happened at these December meet-
ings served to break the impasse. However, an unusual event
occurred on the evening of December 8. A written document
prepared by the Union was slipped under Mary Villareal’s hotel
room door. As is discussed earlier in this decision, the docu-
ment was entitled, “CONFIDENTIAL INTERNAL UNION
DOCUMENT [,] Committee Discussion Non Proposal.” (R.
Exh. 47.) It appears to me that this was intended as a sidebar
document that the Union was not formally offering to the Re-
spondent as a contract proposal, but, rather, merely as an in-
formal trial balloon, to see if the Respondent had sufficient
interest in it to then make counter proposals of its own.
As I conclude that this document was not an actual proposal,
and was not intended by the Union to be any more than a trial
balloon, I do not believe that it could constitute a break in the
impasse that had existed between the parties since the Re-
spondent made its “last proposal” on August 21. In my view, it
is unfortunate that the Union did not actually make a proposal
to the Respondent along the lines of its “Non Proposal,” as it
contained what otherwise would have been significant move-
ment on the part of the Union regarding wages and room at-
tendant cleaning requirements.
In any event, the impasse between the parties continued, and
on February 3, 2010, Stokes, on behalf of the Respondent, gave
notice to the FMCS of its proposed termination or modification
of the expired contract with the Union. (Jt. Exh. 1.) This was
the first such notice given by the Respondent in connection
with the expired contract.
Despite the fact that Stokes had taken the position since early
October 2009 that the parties were at impasse, and the Re-
spondent had implemented certain of its proposals as contained
in its “final” contract offer of August 21, 2009, the Respondent
asked the Union for bargaining dates in March 2010. (Jt. Exh.
2–001136(d).) Thereafter, the parties met in Anchorage on
March 10 and 11, 2010.
These two bargaining sessions were highly acrimonious.
However, despite the acrimony, there was obvious negotiating
movement by the parties as new proposals were exchanged. On
March 10, Sawyer presented a written proposal, which appears
to incorporate many of the clauses from the Union’s “Non Pro-
posal,” which, as mentioned above, had been slipped under
Villareal’s hotel room door on the evening of December 8,
2009. This written proposal was entitled, “Union’s Package
Proposal 3/10/10.” (GC Exh. 56.)
Below the heading appears the following: “The Union offers
this proposal in its entirety. Should any part of the sum be
rejected, the proposal and all of its parts are to be considered
withdrawn and the Union’s prior position prevails.” For
“Room Attendant Workload,” the proposal called for room
attendants to clean 16 rooms a shift in the 1st and 2d years of
the agreement and 15 rooms a shift in the 3d and 4th years.
Under medical insurance, the Union proposed the same rates as
contained in its contract with the Captain Cook Hotel. Those
contribution rates were then set forth in the proposal. As to
yearly wage increases, the Union offered a wage freeze in the
first year of the contract, followed by a 2-percent increase in
each of the remaining 3 years of the contract. Finally, the pro-
posal provided that the language in the expired contract be
maintained, unless the parties agreed to changes. (GC Exh.
56.)
In addition to the Union’s new proposals, the Respondent
made one of its own. While the Union had continued to pro-
pose that the parties leave in place the Taft-Hartley Medical
Insurance Plan, as provided for under the terms of the expired
contract, the Respondent for the very first time offered an inde-
pendent medical insurance plan from AETNA. The Respond-
ent had previously proposed an independent CIGNA medical
insurance plan to replace the Taft-Hartley plan. However,
when the Respondent implemented certain provisions of its
“final offer” on about October 17, 2009, it had not implemented
the CIGNA plan, leaving in place the Taft-Hartley Medical
Plan as contained in the expired contract.
The AETNA plan was significantly different than the
CIGNA plan. So much so, that Mary Villareal made an ap-
proximately 90 minute presentation on the specifics of this
plan. Further, she provided the Union with a comparison chart,
showing the differences between the medical insurance provid-
ed for in the expired contract and that provided for in the
AETNA plan. (GC Exh. 53.) Stokes noted that the Respondent
had “shopped around” since the August 21, 2009 proposal, and
that this AETNA plan was the best medical insurance available
for the money. Sawyer indicated that the Union would discuss
the Respondent’s medical insurance proposal, and, upon, his
request, the Respondent promised to connect him with its in-
surance broker so that Sawyer could have more detailed ques-
tions answered.
I believe that the proposals made by the Union in its Package
Proposal of March 10, and by the Respondent in its proposed
AETNA medical insurance plan made that same day were sig-
nificant changes in the positions that the parties had previously
taken in contract negotiations, and served to break the impasse
that had previously existed in bargaining between the parties.
On March 11, 2010, the parties met for what would turn out
to be their last bargaining session. Initially there was some
movement, with the Union agreeing to accept the Respondent’s
proposed contribution amount for employee pensions. Further,
as noted earlier, the Union had made concessions regarding
room cleaning requirements for housekeepers and as to wage
rates. These concessions were contained in the most recent
union proposal dated March 10, 2010. (GC Exh. 56.)
However, matters quickly soured when the parties began to
discuss how the Respondent’s proposed job titles would impact
on the individual job duties of the unit employees. It was dur-
ing these discussions on job titles that Stokes suddenly blurted
out, “We are at impasse on this issue.” Sawyer responded by
saying, “No we aren’t,” after which there is disagreement on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
exactly what was said. There were clearly some heated words
exchanged between Stokes and Sawyer, and Sawyer led the
union bargaining team out of the room. The Respondent
blames Sawyer for the premature end of the meeting, while
Sawyer blames Stokes for saying that the parties were at im-
passe and for rambling on about irrelevant matters. In any
event, this ended the negotiations.
Following their meetings of March 10 and 11, Stokes sent a
long letter to Sawyer dated March 19, 2010. (Jt. Exhs. 2–
00137–00140.) In that letter, Stokes summarizes what he con-
tends occurred during those meetings. He prefaces the letter by
stating that despite “the receipt of two offers from the Union
. . . showing some movement . . . the Hotel has not changed its
position from its August 21 final offer, except as discussed
below, and the parties remain at impasse on many issues.” The
full content of this letter is discussed in detail earlier in this
decision. As I previously noted, I believe that this letter was
drafted by Stokes primarily to be used in litigation, and as a
defense to unfair labor practice charges. It is extremely self-
serving.
In the letter, Stokes acknowledges proposing a change from
the Respondent’s August 21, 2009 “final offer,” that being the
replacement of the CIGNA insurance plan with the AETNA
plan. He notes that the Employer never implemented the
CIGNA plan, but, rather, continued to adhere to the Taft-Harley
Medical Insurance Plan as provided for in the expired contract.
Stokes defends the AETNA plan as “financially responsible,”
and references the presentation by Mary Villarreal of the spe-
cifics of the plan at the bargaining sessions in March, as well as
the summary of benefits chart comparing the union plan with
the AETNA plan. According to Stokes, “The parties are at
impasse on this issue and have remained there since the outset
of negotiations.”
Later in the letter, Stokes reprimands Sawyer for walking out
of the negotiating session on March 11, which conduct Stokes
contends is further evidence that the parties are at impasse. He
continues to insist that the parties have remained at impasse
since August 21, 2009. Finally, he notifies Sawyer that the
Respondent is “implementing anew, its August 21 offer, except
that as of May 1, 2010, the AETNA plan will be implemented
in place of the union health and welfare plan that is currently in
effect.” (Jt. Exhs. 2–00137–00140.)
Sawyer responded to Stokes’ letter with his own dated April
1, 2010. (Jt. Exhs. 2–00141–00143.) Not unexpectedly, Saw-
yer vigorously denied that the parties were at impasse. He
accused Stokes of attempting to artificially create and declare
impasse. According to Sawyer, the parties were still bargaining
with there being no overall impasse reached.
In particular, he mentions the Respondent’s AETNA medical
insurance proposal, which was only raised by the Respondent
for the first time during the March negotiations. Regarding the
AETNA proposal, Sawyer states that “the Union has at no time
articulated its position regarding the [proposal], nor have you to
date asked us to do so. Nor are we ready or able to offer a re-
sponse at this time, since there are many questions that the
Union must pursue to adequately address your idea to again
charge [sic] plans. . . . [T]he Union began at our last session to
explore all of the differences between the current plan and the
Employer’s newly proposed plan.” Further, Sawyer argues that
the Respondent needs to make information available to the
Union “that will enable us to understand and assess the Em-
ployer’s brand new proposal on this complicated subject.”
While Sawyer does not deny that he “walked out” of the bar-
gaining session on March 11, he criticizes Stokes for allegedly
wasting time talking about irrelevant subjects. He states a will-
ingness to “continue meaningful discussions and offer pro-
posals in an attempt to reach agreement.” (Jt. Exhs. 2–00141–
00143.)
I believe that Sawyer, as did Stokes, wrote this letter with an
eye towards possible litigation. However, the letter strikes me
as not quite as self-serving as the one written by Stokes. Clear-
ly, the Union was interested in getting back to the bargaining
table. But not so the Respondent, resting on its claim that im-
passe had been reached.
On March 26, 2010, the Respondent announced the imple-
mentation, effective May 1, 2010, of the AETNA medical plan,
a stand alone health care plan for the unit employees. (GC Exh.
94, p. 3.) This plan was only available to unit employees who
worked a minimum of 30 hours per week. It should be noted
that under the Taft-Hartley Trust Fund Medical Insurance Plan,
as provided for under the expired collective-bargaining agree-
ment, unit employees who worked part time might still be able
to participate in the plan by pooling their hours from other un-
ion jobs where they were also covered by the same Taft-Hartley
Trust Fund. This “pooling of hours” would not be available to
the employees under the AETNA plan.
I conclude that the proposals made by the Union and the Re-
spondent on March 10, 2010, broke the impasse, which had
been in effect since the Respondent made its “final proposal”
on August 21, 2009. Both the Union’s proposal entitled “Un-
ion’s Package Proposal of 3/10/10,” and the Respondent’s pro-
posal to replace the existing Taft-Hartley Medical Insurance
Plan with the AETNA medical insurance plan were significant
departures from the prior positions of the parties and came
during what was scheduled to be 2 days of negotiations.
In its new proposal, the Union moved closer to the Respond-
ent’s position on the required numbers of rooms per shift to be
cleaned by the room attendants. The Respondent had been
most recently proposing 17 rooms per shift, and the Union had
now moved from 15 rooms, as provided for under the expired
contract, to 16 rooms a shift during the 1st and 2d year of the
contract, reverting back to 15 rooms a shift during the 3d and
4th year of the contract. The proposal also contained an offer
to freeze wages in the first year of the contract, followed by a
2-percent increase in each of the remaining 3 years of the con-
tract. While wages had not really been a contentious subject
during the negotiations, and, in fact, had only been discussed
minimally,52 the number of rooms that attendants were required
to clean had been a major dispute separating the parties.
On the Respondent’s side, the proposal to substitute the in-
dependent AETNA plan, for the CIGNA plan that had previ-
ously been proposed, but never implemented, was a significant
departure from the existing Taft-Hartley Medical Insurance

52 It appears that the parties did not believe that wages would be a
significant issue, assuming all other matters could be resolved.
SHERATON ANCHORAGE 851
Plan under the expired contract. It was, in fact, a significant
enough departure that the Respondent thought it advisable to
have Mary Villareal make a 90-minute presentation of the
plan’s specifics to the members of the union bargaining com-
mittee. Further, the name of the Respondent’s insurance broker
was furnished to Sawyer so that he could have detailed ques-
tions answered. As Sawyer pointed out in his letter of April 1,
2010, the Union had not yet had an opportunity to respond to
the Respondent’s AETNA medical insurance proposal, and the
Respondent had not formally asked for such a response. Medi-
cal insurance proposals have been found by the Board to consti-
tute “core” issues in negotiations. Majestic Towers, Inc., 353
NLRB 304 (2008) (when a union has not yet received infor-
mation requested by it from an employer, which is crucial to its
analysis of the employer’s proposals, it is simply not possible
for an impasse to exist), cites Caldwell Mfg. Co., 346 NLRB
1159, 1170 (2006).
I believe that these proposals from the Union and the Re-
spondent were certainly significant enough to warrant further
negotiation between the parties. Further, it is clear that the
Union’s premature departure from the bargaining table on
March 11 was not intended to serve as an end to negotiations.
It was an obvious response to Stokes’ statement that the parties
were at impasse, which statement seemed to be out of context,
and was certainly unrelated to the significant new proposals
that each side had brought to the bargaining table. Sawyer’s
decision to leave the bargaining table seemed nothing more
than a momentary strategy intended to demonstrate the Union’s
displeasure and frustration with Stokes’ tactics. Sawyer’s letter
of April 1, 2010, certainly expressed a willingness to “continue
meaningful discussions and offer proposals in an attempt to
reach agreement.” (Jt. Exhs. 2–00141–00143.)
Stokes was way too anxious to use the Union’s departure
from the negotiating table as an indication that the parties re-
mained at impasse. To the contrary, I believe the totality of the
evidence establishes that the impasse that the parties had
reached following the presentation of the Respondent’s “final
offer” of August 21, 2009, was broken by the events of March
10 and 11, 2010. Impasse is not a permanent state of being.
The new proposals made by both the Union and the Respondent
warranted serious consideration and further negotiations by the
parties. That did not happen because the Employer prematurely
declared impasse and implemented at least one unilateral
change, that being the AETNA medical plan on May 1, 2010.
This conduct constituted a failure to bargain in good faith in
violation of Section 8(a)(5) of the Act. See CJC Holdings, Inc.,
320 NLRB 1041, 1044–1046 (1996); Whitesell Corp., 352
NLRB 1196 (2008) (no impasse where employer sought sub-
stantial changes, but put artificial deadline on negotiations, and
where parties had exchanged proposals day before employer
declared impasse).
Accordingly, I conclude that the Respondent implemented
the AETNA medical plan on May 1, 2010, without affording
the Union an opportunity to bargain with the Respondent over
this issue, and also unilaterally stopped making payments to the
extant Taft-Hartley Medical Insurance Plan under the terms of
the expired contract, as alleged in paragraphs 9(e), (f), and (g)
of the first complaint. By unilaterally implementing the
AETNA plan and discontinuing the extant plan without reach-
ing a good-faith bargaining impasse, the Respondent was in
violation of Section 8(a)(5) of the Act. Concomitantly, the
Respondent’s refusal to return to the bargaining table following
the last negotiation session on March 11, 2010, constitutes a
continuing refusal to bargain in good faith in violation of Sec-
tion 8(a)(5) of the Act.
B. Suspensions/Discharges
Paragraph 12 of the first complaint alleges that the Respond-
ent issued suspensions and/or written disciplines to nine em-
ployees because they engaged in union and/or protected con-
certed activity by presenting a boycott petition to the Respond-
ent’s general manager, and because they were in violation of an
unlawful work rule. The nine employees involved are: Gina
Tubman, Joana Littau, Anna Rodriguez, Maria Hernandez,
Lucy Dudek, Su Ran Pak, Troy Prichacham, Juanita Bourgeois,
and Joey Pitcher. This conduct is alleged to violate Section
8(a)(1) and (3) of the Act.
Paragraph 14 of the first complaint alleges that the Respond-
ent discharged four employees because they engaged in union
and/or protected concerted activity by distributing flyers out-
side the front and back entrances of the hotel, and because they
were in violation of an unlawful work rule. The four employ-
ees involved are: Gina Tubman, Joanna Littau, Lucy Dudek,
and Troy Prichacharn. This conduct is alleged to violate Sec-
tion 8(a)(1) and (3) of the Act.
These events are covered in detail in the fact section of this
decision. However, a brief review is necessary.
In November 2009, the unit employees voted to authorize a
boycott of the hotel in protest of the Respondent’s alleged fail-
ure to bargain in good faith and implementation of changes to
their working conditions. There was a kickoff rally for the
boycott outside the hotel on November 17. It was decided that
a number of employees would present the hotel general manag-
er, Dennis Artiles, with a copy of a petition calling for a boy-
cott of the hotel, which petition was allegedly signed by 84
percent of the unit employees. To that end, certain of the em-
ployee members of the union negotiation team, Joann Littau,
Lucy Dudek, Troy Prichacharn, Maria Hernandez, Ann Rodri-
guez, Gina Tubman, and Su Ran Pak, plus two other employees
not on the negotiation team, Joey Pitcher and Juanita Bour-
geois, were enlisted to present a copy of the petition to Artiles.
While the rally was in progress, the delegation of presenters
broke off and entered the lobby of the hotel. They were on
their own time. The presenters asked to speak with Artiles,
who appeared about 5 minutes later. According to the employ-
ee witnesses, Prichacharn handed Artiles a copy of the petition
(GC Exh. 8), while Dudek introduced the group and said, “Mr.
Artiles, we are here to present you our boycott petitions and we
want to show you our support for the boycott.” Littau mo-
tioned outside, saying, “All of these people outside are mem-
bers of the community who are supporting us in our boycott.”
Artiles took the petition and replied only, “Thank you for bring-
ing this to my attention.” The delegation then left the hotel
lobby and rejoined the rally in progress. After a few minutes,
the rally ended as the temperatures outside were frigid. The
delegation’s presentation of the petition to Artiles lasted around
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
5 minutes.
The members of the delegation who testified at trial all indi-
cated that they did not engage in chanting, noise making, or
other celebration type sounds in connection with the presenta-
tion to Artiles. Contrary to the assertions made by Artiles, all
the employees who testified about the rally rejected any accusa-
tion that they were rude or disrespectful to Artiles or anyone
else.
Artiles testified that the employee delegates did not block
anyone or prevent anyone from entering the hotel. He testified
that he was concerned with their “body language,” which he
thought created a very “negative impression,” in that they were
belligerently and rudely insisting on the right to engage in their
activity. Further, Artiles testified that, while he was surprised
and “very concerned” by the employees’ conduct, he was not
physically afraid. However, he clearly thought that they were
discourteous, and that they were out of line by confronting him
in the hotel lobby, as “there is a time and place for everything.”
It is axiomatic that in presenting their petition for a boycott
of the hotel to the general manager, the nine employees were
engaging in the most basic form of union and protected con-
certed activity. I have no reason to doubt those employees who
testified that they were not rude or disrespectful to Artiles or
anyone else. Artiles himself did not really challenge this testi-
mony by the petition presenters. While he characterized their
conduct as being belligerent and rude, he gave no specific ex-
amples of such conduct. Simply because Artiles was “sur-
prised” and “very concerned” by the presentation of the peti-
tion, and felt that there was a better “time and place” for such
activity, does not establish that there was anything improper
about the conduct of the presenters. Neither the Respondent
nor Artiles has the right to decide when employees can engage
in legitimate union activity. Nothing about the conduct of the
petition presenters was improper, or in any respect rises to the
level of impropriety that would remove their actions in present-
ing the petition from the protection said actions are entitled to
under the Act as legitimate union and protected concerted activ-
ity.
The Respondent acknowledges that none of the employees in
the delegation were on duty at the time they entered the lobby.
Further, the Respondent emphasizes that these off duty em-
ployees did not receive permission before entering the hotel
with their petition. The Respondent is relying on the alleged
violation of the rules of conduct in the association handbook to
justify certain disciplinary actions taken by management
against members of the delegation. As is noted in the associate
handbook under the heading “Working Hours/Overtime,” page
16: “Return to property after work is not permitted. At the
conclusion of the shift, you should leave the hotel premises. If
you desire to use any of the hotel facilities after hours or on
your day off, you MUST receive prior permission from the
General Manager.” Further, under the heading “Associate
Rules and Regulations,” page 33 it says: “I agree not to return
to the hotel before or after my working hours without authori-
zation from my manager.” (GC Exh. 7.) Counsel for the Re-
spondent emphasized in his brief that all employees of the hotel
received a copy of the association handbook, which had been in
effect since the Respondent assumed operation of the hotel in
December 2006.
On about November 19, 2009, the Respondent disciplined
Tubman, Littau, Rodriguez, Hernandez, Dudek, Pak,
Prichacharn, Bourgeois, and Pitcher for having presented Ar-
tiles with the boycott petition 2 days’ earlier. The disciplinary
notice issued to each of the employees stated as follows: “On
11/17/ 2009 around 5:45 PM you and a group of associates
entered the hotel on your time off. You all approached the
General Manager in an [sic] disorderly conduct, verbal harass-
ment making threats and very intimidating to him about what
he was doing wrong with the union negotiations.” There then
followed four association handbook rules that the employees
had allegedly violated, with the notice concluding, “This will
not be tolerated.” The four handbook rules that the employees
were accused of having violated were: the no loitering on the
property rule, the being only in assigned work areas rule, the
common decency and public embarrassment rule, and the con-
flict of interest rule. (GC Exhs. 13, 16, 18, 20, etc.)
In addition to the disciplinary notices issued to the nine em-
ployee members of the delegation, Tubman, Prichacharn, and
Littau were initially suspended, but then, according to Ful-
lenkamp, she and Artiles consulted with members of the Re-
spondent’s executive team in Texas and it was determined not
to suspend them, but just issue each of them a written warning.
However, it does appear that Bourgouis and Dudek were actu-
ally suspended. Allegedly, no employee lost any pay as a result
of this discipline.
The standard used by the Board to determine in “dual moti-
vation” cases whether an employee has been disciplined be-
cause he engaged in union or protected concerted activity, or
for good cause is well established and enunciated in Wright
Line, and its progeny. However, I am of the view that the issue
before me is not one of dual motivation, and, therefore, the
Wright Line framework is not appropriate for determining
whether the nine petition presenters were disciplined unlawful-
ly. The Respondent takes the position that the petition present-
ers were disciplined for violating the hotel’s rules and code of
conduct regarding access to the hotel by offduty employees. It
was in the course of presenting the petition to Artiles that the
employees were on hotel property. Under such circumstances,
the proper analytical framework is that found in Burnup &
Sims, 379 U.S. 21 (1964). In that case, the Supreme Court
affirmed the Board’s determination that an employer violates
Section 8(a)(1) of the Act by discharging or disciplining an
employee based on its good faith but mistaken belief that the
employee engaged in misconduct in the course of protected
activity. Id. at 23–24; also La-Z-Boy Midwest, 340 NLRB 80
(2003).
It is beyond question that the petition presenters were en-
gaged in union and protected concerted activity when they left
the boycott rally going on outside the hotel, and, while on their
own time, entered the hotel and proceeded to present the peti-
tion to the hotel general manager. The boycott of the hotel was
a strategy devised by the Union as a means of bringing eco-
nomic pressure to bear on the Respondent in an effort to force
the Respondent to submit to the Union’s demands at the bar-
gaining table. The petition presenters were acting as the repre-
sentatives of the 84 percent of the unit employee who signed
SHERATON ANCHORAGE 853
the petition when they sought to present it to Artiles. Frankly,
one would be hard pressed to find a more basic form of union
and protected concerted activity.
These employees were disciplined by the Respondent be-
cause while they were off duty, and without first securing per-
mission from management, they entered the hotel, which was a
violation of the hotel rules and code of conduct as found in the
associates handbook. Of course, the purpose for their being on
hotel property while off work was so that they could present
Artiles with the petition, clearly constituting union and protect-
ed concerted activity. Indeed, to the extent that the conduct for
which employees are disciplined is “intertwined with protected
concerted activity,” as in the matter at hand, the Board’s Wright
Line analysis does not apply, and a violation will be found
based on this causal link alone. See Felix Industries, 331
NLRB 144, 146 (2000); Nor-Cal Beverage Co., 330 NLRB
610, 611–612 (2000).
While the employees were allegedly disciplined for violating
the hotel rules and code of conduct regarding offduty access to
the hotel, the very existence and/or enforcement of those rules
constituted a violation of the Act. I will have more to say about
those rules later in this decision, and need not discuss them
further now, as since the employees were clearly engaged in
union and protected concerted activity when “violating the
rules,” the issue really becomes whether anything about their
actions removes their conduct from the protection of the Act.
Where an employee is punished for being part of a group that
presents to management a petition protesting their working
conditions, “[t]he General Counsel easily establishes the ele-
ments of a violation.” Superior Travel Service, Inc., 342
NLRB 570, 574 (2004) (where the Board held that these types
of group approaches to an employer are concerted and protect-
ed by the Act). As noted, the petition presenters’ union and
protected concerted activity was “intertwined” with the alleged
violations of the Respondent’s hotel rules and code of conduct
found in the associate handbook. In fact, the only way that the
petition presenters could have lost the protection of the Act was
if their conduct in presenting the petition to Artiles was oppro-
brious.
In Atlantic Steel Co., 245 NLRB 814 (1979), the Board set
forth the four elements looked at in determining whether union
or concerted conduct loses the protection of the Act: (1) the
place the conduct occurred; (2) the subject matter of the con-
duct; (3) the nature of the conduct; and (4) whether the conduct
was provoked by the employers unfair labor practices. In the
case at hand, the conduct occurred in the lobby of the hotel, an
area where the guests gathered and hotel business was conduct-
ed. The subject matter of the conduct was the boycott petition,
and the nature of the conduct was the presentation of the em-
ployee boycott petition to the hotel general manager, which
clearly constituted union and protected concerted activity.
There was no inappropriate outburst, use of profanity, rude,
disrespectful, or obnoxious behavior on the part of the employ-
ees.53 Artiles could not specifically point to any such conduct.

53 An employee’s protected concerted activity does not lose the pro-
tection of the Act unless he engages in misconduct that is so violent,
outrageous, or disruptive as to render the employee unfit for service.
He merely did not like the attitude of the petition presenters and
felt that there was a better place and time to present such a peti-
tion. As I stated earlier, that simply does not matter, since the
Respondent does not have the legal authority to dictate when
and under what circumstances its employees will exercise their
right to engage in protected Section 7 activity, and to the extent
that its rules and code of conduct attempt to do so, they are
unlawful. Nothing in the conduct of the petition presenters
caused them to lose the protection of the Act.
Accordingly, I conclude that by suspending and/or issuing
written disciplinary warning notices to the nine petition pre-
senters, the Respondent was in violation of the Act. Specifical-
ly, I find that the Respondent violated Section 8(a)(1) and (3) of
the Act, as alleged in paragraphs 12(a), (b), (c), (d), and (e) of
the first complaint.
Paragraph 14 of the first complaint alleges that on February
17, 2010, the Respondent unlawfully discharged four employ-
ees because of their union and protected concerted activity in
distributing handbills in front of the hotel, which handbills
called for a boycott of the hotel, and for violating certain un-
lawful work rules. The four employees involved are: Gina
Tubman, Joanna Littau, Lucy Dudek, and Troy Prichacharn.
This conduct is alleged as a violation of Section 8(a)(1) and (3)
of the Act.
These events are discussed in detail in the fact section of this
decision. However, a brief recital of those facts is necessary. It
should also be noted that these four handbillers were among the
nine employees who were previously disciplined for presenting
the boycott petition to the hotel general manager.
On February 2, 2010, at about 3 p.m., a number of union
supporters were distributing flyers outside the hotel’s front and
back entrances. These flyers announced the Union’s boycott of
the hotel to guests and others who might be entering or exiting
the hotel. The flyers requested that the public not patronize the
hotel because of the labor dispute with the employees. The two
entrances to the hotel are under overhangs where cars and cabs
drop off or pick up riders having business with the hotel There
are private sidewalks adjacent to the entrances, but the public
sidewalks are some distance away, past the parking area. At
the time of the incident in question, those employees handing
out flyers were clearly on the hotel’s private property. There is
no contention, nor any evidence, that they were in any way
trying to physically impede the ingress or egress of individuals
who were coming to or going from the hotel. Employees
Dudek and Tubman were at the front entrance, while employ-
ees Littau and Prichacham were at the back entrance. These
employees were situated between 4 to 6 feet from the entry
doors. They were not working at the time, and had not asked
permission of the hotel managers to be on the property when
off duty. While they were passing out flyers, fellow employees
were picketing the hotel from the public sidewalk.
A short time after the four employees began to pass out the
flyers, Artiles, Fullenkamp, and another manager came out of
the hotel and approached Prichacharn and Littau. Fullenkamp
announced that the employees were on private property, were

Wolkerstorfer Co., 305 NLRB 592 (1991); Hawthorne Mazda, 251
NLRB 313, 316 (1980), enfd. 659 F.2d 1089 (9th Cir. 1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
off the clock, and, therefore, had to move to the public side-
walk, or she would call the police. Union Agent Esparza, who
was present, approached Fullenkamp and asked if she was go-
ing to discipline these employees or was calling the police. She
told him that the police had already been called. At that point
Prichacharn and Littau left the property.
Turning her attention to the other side of the hotel, Ful-
lenkamp confronted Dudek and Tubman. She asked them
whether they were off duty, to which they responded yes. Ful-
lenkamp replied, “Well, you’re not supposed to be here, you’re
trespassing.” Dudek and Tubman defended themselves, saying
that they had a right to be there, and handed Fullenkamp a pa-
per listing certain NLRB cases with case summaries indicating
they had a right to be on the property to communicate with
customers regarding their labor dispute. (GC Exh. 11.) Ful-
lenkamp looked at the paper, but was apparently not very im-
pressed, as she again repeated that they had no right to be on
the property. Further, she told them, “You need to look at your
handbook. It’s in your handbook that you’re trespassing.” The
two employees remained while Fullenkamp went back into the
hotel. Upon shortly returning, she told them if they still re-
mained that she would have the security guards escort them off
the property. Not dissuaded, the employees steadfastly re-
mained. Once again Fullenkamp went back into the hotel, re-
turning shortly to tell the two employees that the police had
been called, they were on their way, and that the employees
must leave now. Finally, Dudek and Tubman had had enough,
and they left the hotel property.
The following day, the four employees were suspended
pending an investigation. A week later, on February 8, 2010,
the four employees were called back to the hotel so they could
meet with Artiles and tell him their side of the story. Subse-
quently, Artiles recommended they all be terminated, which
recommendation was concurred in by Villareal, the final deci-
sionmaker. On February 17, the four employees were again
called back to the hotel where they met individually with Ar-
tiles who informed them that they were being terminated for
violating hotel policy.
The disciplinary notices received by the four discharged em-
ployees were identical. (GC Exhs. 12, 15, 17, 19.) They were
drafted by Fullenkamp. The employees’ misconduct was iden-
tified as “passing out flyers to our hotel guests on your time
off,” as well as refusing to leave the property when instructed
to do so. Fullenkamp also referenced the November 17, 2009
incident when they were warned about being on hotel property
while off duty without permission. In the discharge notice,
Fullenkamp stated: “When I asked you to leave the property,
you refused at least two times by turning away from me and
kept handing out the flyers. You then tried to argue with me
about this by telling me you had the right to be there.” Further,
the notice stated, “your behavior was rude and disrespectful to
me and other managers,” and later stated that, “as a shop stew-
ard you know that you do the request and grieve it later.” All
four discharged employees were union shop stewards.
In the body of the discharge notice the Respondent refers to
various sections of its associate handbook including the rules of
offduty access, antidistribution, and insubordination. Finally,
the notice also makes reference to the “no strike/no lockout”
provision in the expired collective-bargaining agreement.
As represented by counsel for the Respondent, in the weeks
preceding the hearing in this case, all four employees received
an unconditional offer to return to work, and all four did so
with full back pay and seniority. No evidence was offered to
dispute this representation.
For the same reasons as were expressed earlier regarding the
disciplining of the employees who presented the boycott peti-
tion to Artiles, the discharge of the four handbillers is not a
“dual motivation” case, and would not appropriately be decided
under the Wright Line framework. The Respondent takes the
position that the handbillers were disciplined for violating the
hotel’s rules and code of conduct regarding access to the hotel
by offduty employees, for trespassing, and for insubordination
for refusing to immediately obey Fullenkamp’s order to leave
the property. It was in the course of handbilling in support of
the Union’s boycott of the hotel that the four employees were
on company property. Under such circumstances, the proper
analytical framework is that found in Burnup & Sims, supra;
and La-Z-Boy Midwest, supra.
It is beyond question that the four employee handbillers were
engaged in legitimate union and protected concerted activity
when, while off duty,54 they went from the public sidewalk to
the immediate vicinity of the hotel’s entrances, admittedly on
hotel property, and began to offer handbills to persons entering
and exiting the hotel. Obviously, the handbilling was intended
to persuade persons not to conduct business with the hotel, and
was in furtherance of the Union’s boycott of the hotel. It is
axiomatic that such conduct constitutes both union and protect-
ed concerted activity. Further, there is no contention, and no
evidence, that the handbillers in any way attempted to impede
those persons who sought to enter or exit the hotel.
The case law is clear that activities such as security, mainte-
nance, and valet parking, which typically occur at the entrances
to the Respondent’s facility, are “incidental” to a hotel’s prima-
ry function, and are, thus, insufficient to transform a hotel’s
front entrance area into a “work area” where the Employer
could lawfully ban employee distributions. Santa Fe Hotel,
Inc., 331 NLRB 723 (2000) (finding that respondent hotel-
casino violated Sec. 8(a)(1) by enforcing its no-distribution/no-
solicitation rule to prohibit its offduty employees from distrib-
uting literature at the main entrances to its facility).
The Respondent contends that these employees were en-
gaged in various forms of misconduct, including violating the
hotel’s rules and code of conduct regarding off duty access to
the hotel. However, the maintenance and/or enforcement of
those rules themselves constitute a violation of the Act, about
which I will have more to say later in this decision. As the
employees were clearly engaged in union and protected con-
certed activity when “violating those rules,” their discharges are
“intertwined with the union and the protected concerted activi-
ty,” and a violation may be found based on this causal link

54 See Nashville Plastic Products, 313 NLRB 462, 463 (1993),
which distinguished an offduty employee on company property, who
was “a stranger neither to the property nor to the employees working
there,” from a nonemployee. Such an offduty employee is not viewed
as a trespasser.
SHERATON ANCHORAGE 855
alone. Felix Industries, supra; and Nor-Cal Beverage Co., su-
pra. The only issue that remains to be decided is whether the
four employees did anything improper while engaged in the
handbilling that would cause them to lose the protection of the
Act.
The Respondent did not contend that the handbillers engaged
in violence or threatening conduct towards any actual or pro-
spective hotel guests during the brief period of their leafleting,
nor was it alleged that they attempted to impede the progress of
any such guest, or that they disparaged or defamed the hotel in
any way. Further, there is absolutely no evidence to indicate
that any such conduct occurred. However, it is the Respond-
ent’s contention that the four employees engaged in insubordi-
nation by refusing to cease their handbilling activity once or-
dered by Fullenkamp to do so.
Each handbiller’s termination paperwork reflects the Re-
spondent’s position that they had no right to remain on the
property continuing their leafleting activity once Fullenkamp
ordered them to leave. According to the Respondent, as is re-
flected in the discharge papers, the employees were expected to
obey their manager’s order and leave the property, and then, if
they so desired, to file a grievance, the so called “do the request
and grieve it later plan.” Additionally, the disciplinary notices
indicate Fullenkamp’s feeling that the handbillers were “rude
and disrespectful” to her and other managers by “turning away”
when asked to leave, by continuing to hand out the flyers, and
by arguing about their “right to be there.” (GC Exhs. 12, 15,
17, 19.)
The Respondent’s directive, as made by Fullenkamp,
amounted to an order that the handbillers cease their protected
conduct and “grieve it later.” In such circumstances where the
employees suffer adverse consequences for their peaceful re-
fusal to obey such an unlawful order, the Board has found a
violation of the Act. See, e.g., Air Contact Transport, Inc., 340
NLRB 688 (2004); Kolkka Tables & Finnish-American Saunas,
355 NLRB 844 (2001).
The Board found in Kolkka Tables that an employee’s re-
fusal to remove union stickers from the employee’s toolbox did
not warrant his suspension. While the employee’s refusal to
comply with the unlawful order put him in direct conflict with a
supervisor, the Board decided that the suspension of the em-
ployee for insubordination was unlawful, since there was no
evidence that the employee made any threatening comments or
gestures against the supervisor, nor did the employee use any
profanity or make any other remarks demeaning the supervisor.
335 NLRB at 849. Similarly, in the case at hand, while Ful-
lenkamp opined in the discharge notices that the employees’
“behavior was rude and disrespectful,” in fact, they had done
nothing of the kind, but merely refused to immediately follow
an unlawful order.
In Air Conduct, an employee had repeatedly refused to sign a
memo reprimanding him for the “animated” way in which he
had presented the grievances of his fellow employees. As an
appointed spokesman, the employee had been engaged in pro-
tected concerted activity. The employer discharged the em-
ployee for insubordination in refusing to comply with what the
Board concluded was an unlawful order to sign the unlawful
memo. Such conduct the Board concluded was not insubordi-
nation, and the employee’s discharge for refusing to sign the
memo violated Section 8(a)(1) of the Act. Again, the Board
relied on the employee “not making any threatening remarks or
gestures, nor did he direct any profanity towards the supervi-
sors. He also did not make any other remarks demeaning
them.” 340 NLRB at 691.
In the matter before me, none of the four handbillers engaged
in any misconduct that would remove their leafleting from the
protection of the Act. In refusing to follow Fullenkamp’s un-
lawful order to cease handbilling and immediately leave the
property, they were not engaged in insubordination. Their ac-
tions were neither rude nor disrespectful. They did nothing as
would warrant their terminations.
The Respondent contends that it “remedied” these four dis-
charges by reinstating the four employees in July 2010, appar-
ently with full backpay and no loss of seniority. In “certain
circumstances an employer may relieve himself of liability for
unlawful conduct by repudiating the conduct.” Passavant Me-
morial Hospital, 237 NLRB 138, 138 (1978). In order to be
effective, the “repudiation must be ‘timely,’ ‘unambiguous,’
‘specific in nature to the coercive conduct,’ and ‘free from oth-
er proscribed illegal conduct.’” Id. (citing Douglas Division,
The Scott & Fetzer Co., 228 NLRB 1016 (1977), and cases
cited therein at 1024). “Furthermore, there must be adequate
publication of the repudiation to employees involved.” Passa-
vant Memorial, 237 NLRB at 138 (emphasis added). “And
finally, the Board has pointed out that such repudiation or disa-
vowal of coercive conduct should give assurances to employees
that in the future their employer will not interfere with the exer-
cise of their Section 7 rights.” Id. at 138–139 (emphasis add-
ed).
In Passavant, the employer published a statement in its em-
ployee newsletter to clarify unlawful threats it made to employ-
ees. (Id. at 138.) The Board noted several reasons why the
employer’s newsletter publication “was ineffective to relieve
[it] of liability and to obviate the need for further remedial ac-
tion, including: (1) the attempted disavowal appeared only once
in an employee newsletter; (2) It was uncertain that all employ-
ees were adequately informed of the retraction; and (3) the
employer failed to show it made any additional efforts to com-
municate its disavowal.” Further, the Board emphasized that
the employer did not admit any wrongdoing. Finally, the Board
noted that “most importantly, [the] statement did not assure
employees that in the future [the employer] would not interfere
with the exercise of their Section 7 rights by such coercive
conduct.” (Id. at 138–139.)
In the matter at hand, the Respondent reinstated its dis-
charged employees with backpay. However, the discharges
occurred in February 2010, and, while it is not entirely clear
exactly when the reinstatements occurred,55 there is no evi-
dence to suggest that they were made in a timely fashion. See
Pride Ambulance Co., 356 NLRB 1249, 1256 (2011) (finding
employer failed to cure illegal discharge allegations where it
failed to act timely, admit wrongdoing, and assure employees
that it would not interfere with their Sec. 7 rights in the future).

55 There is some reference in the record to the reinstatements occur-
ring in July 2010, some 4 months after the terminations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
Even assuming the reinstatement was timely, there is no con-
tention on the part of the Respondent that a disavowal of the
terminations was posted or announced to employees even once
in any form, written, oral, or by intranet. Apparently, such
repudiation of the terminations was never published in any
form by the Respondent. Concomitantly, the Respondent never
gave assurances to employees that in the future it would not
interfere with the exercise of employee Section 7 rights, nor did
it admit to any wrongdoing by its termination of the four hand-
billers.
The Respondent has fallen far short of meeting its burden of
establishing effective repudiation of its unlawful discharges of
the four handbillers under Passavant Memorial. Supra at 138–
139. Accordingly, I conclude that the Respondent’s action in
terminating Gina Tubman, Joanna Littau, Lucy Dudek, and
Troy Prichacharn for handbilling in front of the hotel entrances,
and for disregarding the Respondent’s rules and code of con-
duct prohibiting such protected activity was in violation of the
Act. Therefore, I find that the Respondent violated Section
8(a)(1) and (3) of the Act by discharging the four handbillers,
as alleged in paragraphs 14(a), (b), (c), (d), (e), and (f) of the
first complaint.
C. Rules of Conduct
Paragraph 11(a) through (h) of the first complaint alleges
that eight rules of conduct found in the Respondent’s associate
handbook are unlawful.56 It is the position of the General
Counsel that since November 1, 2009, the mere existence of
these rules has violated the Act. There is no dispute that the
rules, as set forth in paragraph 11 of the first complaint, are
found in the Respondent’s “Remington Associate Handbook”
(GC Exh. 1(ee), the handbook attachment), and that employees
are provided with a copy of the handbook and are expected to
read it and acknowledge its receipt. (R. Exhs. 1 and 2.) The
Respondent acknowledges the existent of these rules, but denies
that the language is unlawful. Therefore, it is necessary to de-
termine whether the language as set forth in those rules is un-
lawful on its face.
The question of whether a rule or policy is on its face a vio-
lation of the Act requires a balancing between an employer’s
right to implement certain legitimate rules of conduct in order
to maintain a level of discipline at work, with the right of em-
ployees to engage in Section 7 activity. There exists a natural
dichotomy between the two. I am mindful of this dichotomy,
and in reviewing the Respondent’s rules, an effort has been
made not to look at the questionable statements in isolation,
but, rather, to view them in the context in which they were
written.
In determining whether the maintenance of specific work
rules violates Section 8(a)(1) of the Act, the Board has held
that, “the appropriate inquiry is whether the rules would rea-
sonably tend to chill employees in the exercise of their Section
7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998),

56 In the fact section of this decision, for ease of reference, I num-
bered these rules as 1 through 8. They correspond to the allegations in
the first complaint as follows: rule 1 = par.11(a); 2 = par.11(c); 3 = par.
11(h); 4 = par. 11(b); 5 = par. 11(f); 6 = par. 11(g); 7 = par. 11(d); and
8 = par. 11(e).
enfd. 203 F.3d 52 (D.C. Cir. 1999). Further, where the rules
are likely to have a chilling effect on Section 7 rights, “the
Board may conclude that their maintenance is an unfair labor
practice, even absent evidence of enforcement.” Id. See also
Blue Cross-Blue Shield of Alabama, 225 NLRB 1217, 1220
(1976).
The Board has further refined the above standard in Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004), by cre-
ating a two-step inquiry for determining whether the mainte-
nance of a rule violates the Act. First, if the rule expressly
restricts Section 7 activity, it is clearly unlawful. If the rule
does not, it will nonetheless violate the Act upon a showing
that: “(1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.” Id. at 647; see North-
eastern Land Services, 352 NLRB 744 (2009) (applying the
Board’s standard in Lutheran Heritage Village, supra at 647).
Similarly, the Board has held that “confidentiality” rules,
which expressly prohibit employees from discussing among
themselves, or sharing with others, information relating to wag-
es, hours, or working conditions, or other terms and conditions
of employment, restrain and coerce employees in violation of
Section 8(a)(1) of the Act, regardless of whether the rule was
unlawfully motivated, or even enforced. See Lutheran Herit-
age Village-Livonia, supra; Double Eagle Hotel & Casino, 341
NLRB 112, 115 (2004) (handbook provision a violation on its
face where confidential information is defined as “wages and
working conditions such as disciplinary information, griev-
ance/complaint information, performance evaluations [and]
salary information”); Flamingo Hilton-Laughlin, 330 NLRB
287, 288 fn. 3, 291 (1999) (handbook provision prohibiting
employees from disclosing “confidential information regarding
. . . fellow employees” a violation).
Further, a rule that prohibits, among other things, unprotect-
ed behavior may be unlawful if it also contains prohibitions so
broad that they can reasonably be understood as encompassing
protected conduct. See, e.g., Flamingo Hilton-Laughlin, 330
NLRB 287, 288 fn. 4, 294 (1999) (rule prohibiting “false, vi-
cious, profane, or malicious statements unlawful because it
prohibits statements that are “merely false” and might include
union propaganda). Also, if a combination of an employer’s
rules could be understood by employees to prohibit them from
engaging in protected conduct, the Act is violated. Pace, Inc.,
167 NLRB 1089, 1098 (1967).
The Board has also held that “[t]he test of whether a state-
ment is unlawful is whether the words could reasonably be
construed as coercive, whether or not that is the only reasonable
construction.” Double D Construction Group, Inc., 339 NLRB
303, 304 (2003). Thus, the test does not require that the only
reasonable interpretation of the rule is that it prohibits Section 7
rights, but, rather, that any reasonable interpretation is suffi-
cient to sustain a violation. Further, to the extent rules may be
subject to competing interpretations, lawful and unlawful, the
Board has held that any ambiguities must be construed against
the promulgator of the rule. See, e.g., Lafayette Park Hotel,
326 NLRB at 828; Norris/O’Bannon, 307 NLRB 1236, 1245
(1992); Ark Las Vegas Restaurant, 343 NLRB 1281, 1282
SHERATON ANCHORAGE 857
(2004).
Turning now to the individual handbook rules in question, it
appears that six out of the eight rules listed in the complaint
were utilized by the Respondent as a basis to discipline the
employees who presented the boycott petition to Artiles and/or
those employees who handbilled at the hotel entrances. Those
six rules are listed in the first complaint in paragraph 11 as
subparagraphs: (a), (b), (c), (f), (g), and (h). Since the Re-
spondent relied upon these rules in disciplining and/or dis-
charging employees for engaging in protected Section 7 con-
duct, they fail the third prong of the Board’s test and are illegal
for that reason alone. See Lutheran Heritage Village-Livonia,
343 NLRB at 647. “[H]andbook provisions violate the Act if
they prohibit employees from engaging in forms of activity that
are protected by the Act.” Superior Travel Service, Inc., 342
NLRB at 574 (citing Koronis Parts, 324 NLRB 675, 686, 694
(1997)). Therefore, I find that rules (a), (b), (c), (f), (g), and
(h)57 violate the Act. I will now discuss each of the rules in
turn.
Regarding those rules as are reflected in the first complaint
subparagraphs 11(a), (b), and (c): (a) employees “agree not to
return to the hotel before or after [their] working hours without
authorization from [their] manager” (complaint app. p. 33); (b)
employees “must confine their presence in the hotel to the area
of their job assignment and work duties. It is not permissible to
roam the property at will or visit other parts of the hotel, park-
ing lots, or outside facilities without the permission of the im-
mediate Department Head” (complaint app. pp. 34–35); and (c)
“distribution of any literature, pamphlets, or other materials in a
guest or work area is prohibited. . . . Solicitation of guests by
associates at anytime for any purpose is also inappropriate”
(complaint app. p. 27), those rules collectively deal with access,
antisolicitation/distribution, and antiloitering issues.
It is long settled court and Board law that, absent special cir-
cumstances, the Act guarantees employees the right to distrib-
ute union literature on their employer’s premises during non-
work time in nonwork areas. Republic Aviation Co. v. NLRB,
324 U.S. 793, 803–804 (1945); NLRB v. Babcock & Wilcox,
351 U.S. 105, 110–111 (1956); Central Hardware Co. v.
NLRB, 407 U.S. 539, 543 (1972). A rule, which, on its face or
by application, interferes with the exercise of these protected
employee rights is presumptively invalid, in the absence of
special circumstances that make the rule necessary in order to
maintain production or discipline. Peyton Packing Co., 49
NLRB 828, 843–844 (1943); see also LeTourneau Co. of Geor-
gia, 54 NLRB 1253, 1259–1260 (1944). The Board has held
that “a rule denying off-duty employees access to parking lots,
and gates, and other outside non-working areas is invalid unless
sufficiently justified by business reasons.” Tele Tech Holdings,
333 NLRB 1281, 1282 (2004). Certainly, rule (a), which re-
quires employees to secure permission from the Respondent’s
managers as a precondition to engaging in union or concerted
activity on the employee’s offduty hours and in a nonwork area,

57 I find that rule (h), which relates to insubordination, is unlawful
only as it was applied by the Respondent to discipline the handbillers
who were engaged in lawful union activity at the time they were di-
rected to leave the Respondent’s facility.
would be presumptively unlawful. See Brunswick Corp., 282
NLRB 794, 795 (1987); Norris/O’Bannon, 307 NLRB at 1245.
Accordingly, I find that rule (a) is unlawful.
Rule (b) is in essence an antiloitering rule intended to con-
fine the employees to their immediate work areas and to pre-
vent them from “roaming” the property. Such rules have been
found illegal by the Board. Palms Hotel & Casino, 344 NLRB
1363, 1363, 1391–1392 (2005); Lutheran Heritage Village-
Livonia, supra at 649 fn. 6: Tri-County Medical Center, 222
NLRB 1089 (1976). In Palms Hotel & Casino, the Board
found that rule prohibiting employees from “loitering in com-
pany premises before and after working hours” violated Section
8(a)(1), because the terms “loitering” and “premises” could
lead offduty employees to conclude they could not engage in
protected activities with other employees in nonworking areas
of the respondent’s property. (344 NLRB at 1363 fn. 3.) Any
ambiguity in a no loitering rule “must be construed against the
[employer] as the promulgator of the rules.” Ark Las Vegas
Restaurant, 343 NLRB 1281, 1282 (2004). See also Lutheran
Heritage Village-Livonia, 343 NLRB at 649 fn. 16, 655 (find-
ing facially invalid rule against “[l]oitering on company proper-
ty (the premises) without permission from the Administrator”).
Most egregious, rules (b) and (c) when read together, create
what amounts to a total prohibition on all solicitation and dis-
tribution by the unit employees at the hotel. As has been noted,
when, as in the matter before me, a combination of the employ-
er’s rules could be reasonably understood by employees to
prohibit them from engaging in all union solicitation and distri-
bution in nonwork areas of the company property during non-
work time, the Act has been violated. Pace, Inc., 167 NLRB at
1098; Care Initiatives, Inc., 326 NLRB 144, 156 (1996) (rule
prohibiting distribution of literature “any time in the facility,
even when you are off-duty” unlawful). Accordingly, I con-
clude that rules (b) and (c) are unlawful.
Rules (f) and (g) could reasonably be interpreted by employ-
ees to prohibit them from discussing among themselves and
others the terms and conditions of their employment, where
such discussion may “publicly embarrass” the Respondent,
conflict with its interest, or violate “common decency or moral-
ity.” Employees who have the right under the Act to engage in
union activity or other protected activity, which may certainly
lead to criticism of the Respondent, or whose activities may
potentially conflict with the Respondent, should not have to
fear running afoul of the rules of conduct and being subject to
discipline. Even employee conduct disparaging management
officials or the Employer’s business may be protected activity if
the remarks or conduct relate to employee interests or working
conditions and are not egregious in nature. See Double Eagle
Hotel & Casino, 341 NLRB 112 (2004), enfd. 414 F.3d 1249
(10th Cir. 2005), cert. denied 546 U.S. 1170 (2006); American
Golf Corp., 330 NLRB 1238 (2000); Allied Aviation Service
Co., of New Jersey, 248 NLRB 229 (1980); Community Hospi-
tal of Roanoke Valley, Inc., 220 NLRB 217 (1975).
Further, regarding the Respondent’s ban on indecent or im-
moral behavior, there are no specific examples in the rules to
define these terms. Therefore, employees might reasonably be
uncertain as to what constitutes prohibited speech. They might
think that using the term “scab” in the course of union activity,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 858
which is certainly “uncivil,” “insulting,” and “contemptuous,”
would result in discipline, even though such language is clearly
protected under the Act. See, e.g., Letter Carriers v. Austin,
418 U.S. 264, 268, 277–278 (1974), citing Linn v. Plant Guard
Workers Local 114, 383 U.S. 53, 60–61 (1966). The employ-
ees should not have to decipher such language at their own
peril. Clearly, the language in these rules is overly broad and
ambiguous, and would serve to chill the Section 7 rights of the
unit employees. As such, I find that rules (f) and (g) are unlaw-
ful.
Regarding rules (d) and (e), they are illegal as they would
reasonably be interpreted by employees to prohibit them from
discussing their terms and conditions of employment with each
other and with the press. Rule (d) explicitly limits employees’
Section 7 activities and is illegal on its face. Lutheran Heritage
Village-Livonia, 343 NLRB at 646; Double Eagle Hotel &
Casino, 341 NLRB at 114 (rule prohibiting employee disclo-
sure of “personnel problems” explicitly restricts protected ac-
tivity). The prohibition in rule (e) regarding contact with the
media is equally unlawful as restricting concerted activity. See,
e.g., Crowne Plaza Hotel, 352 NLRB 382, 386 (2008) (media
policy prohibiting employees from commenting on “any inci-
dent” unlawful where not restricted to when media seeks the
employer’s “official comments”).
These rules are overly broad and would have a chilling effect
on the right of employees to discuss their wages, hours, and
working conditions with each other, with the Union, with gov-
ernmental agencies, with the press, and with other concerned
individuals and organizations. University Medical Center, 335
NLRB 1318, 1322 (2001) (rule prohibiting disclosure of infor-
mation about employees “is unlawfully broad because it could
reasonably be construed by employees to prohibit them from
discussing information concerning terms and conditions of
employment, including wages”); Waco, Inc., 273 NLRB 746,
748 (1984) (rule prohibiting employees from discussing their
wages violates the Act). See also Kinder-Care Learning Cen-
ters, Inc., 299 NLRB 1171 (1990) (finding that the Act protects
employees publicizing their working conditions whether di-
rected to the other employees, news reporters, the public in
general, or the employer’s customers, advertisers, or parent
company); Leather Center, Inc., 312 NLRB 521, 528 (1993)
(finding that the Act protects employees who notify the media
and others about their complaints or grievances against man-
agement in an effort to secure favorable coverage or aid). Ac-
cordingly, I find that rules (d) and (e) are unlawful.
Based on the above, I have concluded that the Respondent
violated Section 8(a)(1) of the Act by maintaining and/or en-
forcing those rules in its “Associate Handbook,” as set forth in
paragraphs 11(a) through (h) of the first complaint.
D. Subcontracting Unit Work
Paragraph 7(b)(viii) of the first complaint alleges that on
about August 17, 2009, without first bargaining with the Union,
the Respondent unlawfully subcontracted bargaining unit work.
It is the General Counsel’s theory that the Respondent unlaw-
fully removed from the bellmen’s duties the responsibility for
driving the hotel courtesy van, which driving had constituted a
significant portion of those duties, and a large amount of remu-
neration that the bellmen received in tips from the guests for
driving the van. On the other hand, the Respondent takes the
position that the expired contract did not require that the Em-
ployer bargain with the Union where subcontracting of unit
work did not displace bargaining unit employees. As discussed
in detail in the fact section of this decision, the Respondent
admits hiring Valentino Limousine Service (VLS) to provide
shuttle services for hotel guests, which services were previously
performed by the bellmen, but it argues that no bargaining with
the Union was necessary under the terms of the expired con-
tract as no bellmen were laid off pursuant to the subcontracting.
The contract provision in question is article IX, section 8 of
the expired collective-bargaining agreement. (GC Exh. 5.) The
pertinent part reads as follows: “If analysis of its operation by
the Employer indicates contracting out is reasonably expected
to result in a reduction in cost, increased efficiency in the deliv-
ery of services to the public, or otherwise benefit the employer,
and it is reasonably expected to result in the displacement of
any regular employee, the Employer shall first notify the Union
in writing of the proposed action.” (Emphasis added by me.)
As noted earlier, from the testimony of bellman Troy
Prichacharn, it does appear that there was no diminution in the
number of bellmen employed by the hotel from August 2009,
when the subcontracting to VLS went into effect, through No-
vember 2009. (R. Exh. 12.) However, it is clear that driving
the courtesy van was considered a perk by the bellmen, since it
permitted them to get off their feet, take a break, and be away
from the confines of the hotel lobby. Its principal benefit was
that it constituted an excellent source of tips. Prichacharn testi-
fied that his tips from driving the van in the winter months
would be between $18 and $25 a day, and in the summer
months between $40 and $45 a day.
It is undisputed that the Respondent did not notify the Union
before contracting with VLS. The Respondent defends its ac-
tion under the terms of the expired contract, as no bargaining
unit employees were laid off as a result of the subcontracting.
In this instance, I agree with the Respondent. The language in
the expired contract is clear and unambiguous. The Respond-
ent is not required to notify the Union, and implicitly bargain
with the Union, unless the subcontracting would reasonably
result in the displacement of bellmen. It did not.
Of course, I realize that the loss of the courtesy van driving
duties resulted in a significant loss of income for the bellmen in
the form of tips, and also the elimination of those duties that
they considered pleasurable. However, the provision in ques-
tion in the expired contract did not make an exception for such
losses in income or pleasure. Under the terms of that contract,
and based on the situation at hand, the Respondent was not
required to notify or bargain with the Union prior to subcon-
tracting unit work.
Accordingly, I conclude that the Respondent did not violate
the Act when on about August 17, 2009, it contracted with VLS
to provide shuttle van services to hotel guests, and concomi-
tantly removed the responsibility of driving the hotel courtesy
van from the duties of the hotel bellmen. Therefore, I shall
recommend that paragraph 7(b)(viii) of the first complaint be
dismissed.
SHERATON ANCHORAGE 859
E. Guest Satisfaction Incentive Plan
Paragraph 9(d) of the first complaint alleges that on about
March 18, 2010, the Respondent implemented a “Guest Satis-
faction Incentive” plan, without bargaining with the Union, in
violation of Section 8(a)(5) of the Act. This was an incentive
bonus plan under which the room attendants could receive cash
like awards and other benefits for achieving a high cleanliness
rating for the hotel, and for positive comments made about
them individually by hotel guests. The General Counsel alleges
that this was an unlawful unilateral change made by the Re-
spondent without consultation with the Union, and unrelated to
the issues that separated the parties at the bargaining table, and
that allegedly had led the Respondent to declare impasse. The
Respondent’s defense is that this incentive program was simply
an idea from the hotel general manager, which was never fully
implemented as the Respondent’s corporate executives vetoed
the plan. According to counsel for the Respondent, the plan
was in effect for at most 24 hours, had almost no impact on the
bargaining unit, and was, at most, de minimis.
As I noted in the fact section of this decision, on March 18,
2010, a memo to the housekeeping department from Artiles
was posted in the department, as well as on the door of each
floor’s housekeeping supply closet. The memo is set forth in
detail earlier in this decision. In summary, it provided that if
the hotel collectively received a high cleanliness rating for a
month, each housekeeper would be permitted to clean one less
room per shift for the entire following month, meaning only 16
rooms cleaned, rather than 17. Further, housekeepers could
earn a $25 gift card if the overall monthly goal for the hotel was
met, and if the individual housekeeper’s name was mentioned
positively in an online guest survey.
The memo was explained to groups of housekeepers by Edu-
ardo Canes, the director of operations, shortly after it was post-
ed. The testimony of employee witnesses regarding the imple-
mentation of this plan was very weak. Housekeeper Elda Bue-
zo testified that for 1 day only all the housekeepers were per-
mitted to clean one less room. She thought that it was around
the date that Canes talked to the housekeepers about the new
plan, but she did not seem very clear as to the reason this hap-
pened. Housekeeper Ana Rodriguez testified that two other
housekeepers, Dolores Cuellar and Rajit Aguglia, for 1 day
only had their room cleaning quota reduced by one room, to 16
rooms, because the hotel had received good comment cards
about them filled out by guests.
In her posthearing brief, counsel for the General Counsel
acknowledges that the “Respondent’s actual implementation of
the plan was spotty.” Counsel for the Respondent in his
posthearing brief argues that the incentive plan was never fully
implemented, and that any partial implementation was very
brief and de minimis in its impact on the bargaining unit.
Counsel cites some cases, which he acknowledges are for anal-
ogy purposes only, as they deal with certain minor unilateral
wage increases established by past company policy found by
the courts not to constitute a failure to bargain in good faith.58

58 Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1185 (5th Cir. 1982);
NLRB v. Southern Coach & Body Co., 336 F.2d 214, 217–218 (5th Cir.
1964); White v. NLRB, 255 F.2d 564, 565 (5th Cir 1958), cited with
These cases are of only marginal value as they deal with wage
increases based on business necessity, or automatic increases as
part of established company policy, or custom and practice, or
where the increase was held to be very insignificant. Never the
less, I agree with counsel for the Respondent that the impact of
the limited implementation of the plan was de minimis.
The plan was never fully implemented, and apparently was
in effect for only 24 hours, and at most it benefited two house-
keepers for 1 day only. The plan was withdrawn before it could
have any kind of a significant impact on the bargaining unit.
Had it been fully implemented it would have certainly consti-
tuted a unilateral change and a failure to bargain in good faith.
However, based on the evidence before me, I find the incident
de minimis, and not rising to the level of an unfair labor prac-
tice. Accordingly, I shall recommend that paragraph 9(d) of the
first complaint be dismissed.
F. Engineers Assigned Security Guard Duties
It is alleged in paragraphs 9(a) and (g) of the first complaint
that from about July through September 2009, the Respondent
unilaterally assigned nonunit security guard duties to its bar-
gaining unit engineers, without first notifying and negotiating
with the Union. In an effort to substantiate this allegation,
counsel for the General Counsel relies on the testimony of en-
gineer Dexter Wray. However, counsel for the Respondent
argues that the evidence offered by the General Counsel is in-
sufficient to support this allegation, and that the testimony of
Wray is incredible.
Earlier in this decision, I considered the testimony of Dexter
Wray in direct contradiction to that of his Supervisor Ed
Emmsley Jr., the chief of engineering. For the reasons that I
expressed earlier, I found Wray to be credible, and Emmsley
not to be so. For purposes of the issue now before me, I con-
tinue to find Wray credible. I find Wray to be a plain spoken
individual with no interest in verbal semantics. He says what is
on his mind directly, without hesitation, exaggeration, or em-
bellishment. He is a current employee who testified against the
interests of his employer, and who held up well under vigorous
cross-examination. I am unconcerned about his recalling the
events in question as having occurred in 2008, when clearly
they took place in 2009. I consider this nothing more than a
common memory lapse, and, in fact, I find that otherwise his
memory for detail is excellent. Accordingly, I credit his testi-
mony regarding this issue.
The hotel engineers are responsible for maintenance and me-
chanical issues. Prior to July 2009, the Respondent also em-
ployed security guards who worked at the hotel.59 The guards
assisted guests to their rooms, ensured the safety of the hotel,
and dealt with homeless people on the property. During emer-
gencies all employees were expected to assist security. How-
ever, beginning in July 2009, the Respondent without notice or
bargaining with the Union, began to reduce its security guards’

approval in NLRB v. Katz, 369 U.S. 736, 747 fn. 14 (1962). See also
NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 267–268 (2d Cir. 1963).
59 While it is unclear whether the security guards were employees of
the Respondent or employed by a security company with which the
Respondent had a contract, it is undisputed that they are not bargaining
unit employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 860
hours and assigned the duties that had been performed by the
guards to its engineers. According to Wray, this change was
announced by Chief of Engineering Ed Emmsley Jr., who told
the engineers that when there were no security guards on a
particular shift that they would have to perform that duty. In
September 2009, the entire security force was laid off and the
security function in its entirety was performed by the engineers,
in addition to performing their regular engineering duties.
Wray testified that the engineers were never given any training
in security work.
In any event, this new arrangement did not last long, as in
mid-October a serious incident occurred at the hotel that in-
volved an intruder with a gun. The Respondent then proceeded
to bring back trained security guards. The evidence is undis-
puted that the Respondent never raised the issue of security
guards or attempted to bargain with the Union over the transfer
of security guard duties to the engineers.
As established by the Board and the courts, it is beyond
question that an employer must notify and consult with the
union representing its employees before imposing unilateral
changes in wages, hours, and terms and conditions of employ-
ment. See NLRB v. Katz, 369 U.S. 736, 747 (1962) (unilateral
changes “must of necessity obstruct bargaining, contrary to the
congressional policy”). To be found unlawful, the unilateral
change imposed must be “material, substantial, and signifi-
cant,” and impact the employees or their working conditions.
Toledo Blade Co., 343 NLRB 385 (2004). Further, a unilateral
change in represented employees’ terms and conditions of em-
ployment is a mandatory subject of bargaining and is unlawful
if the change is “material, substantial, and significant.” Flam-
beau Airmold Corp., 334 NLRB 165 (2001). These include
changes to employees’ job duties. See, e.g., Five Star Mfg.,
1301, 1301 fn. 4 (2008) (unilateral change in employee work
assignments a violation); California Gas Transport, Inc., 347
NLRB 1314, 1359–1360 (2006) (unilateral change in route
assignments which inherently affected pay constitute a viola-
tion), enfd, 507 F.3d 847 (5th Cir. 2007).
In the matter before me, the Respondent, without notifying
and bargaining with the Union, unilaterally increased the job
duties of the engineers by making them responsible for security
functions previously performed by the guards. Obviously,
security duties are very different than those duties normally
performed by the engineers. Any previous sporadic and tempo-
rary assignment of security duties to the engineers was not
comparable to the assumption of all security duties by the engi-
neers for an extended period of time. Such a transfer of all
security duties to the engineers was material, substantial, and
significant. Therefore, I find that the Respondent’s failure to
notify and bargain with the Union prior to transferring these
duties to the bargaining unit engineers was a unilateral change
in violation of the Act. Accordingly, I find that the Respond-
ent’s conduct, as alleged in paragraphs 9(a) and (g) of the first
complaint, constitutes a violation of Section 8(a)(1) and (5) of
the Act.
G. Surveillance Cameras
Paragraphs 9(c) and (g) of the first complaint allege that on
about November 2009, the Respondent installed and, since
then, has continued to operate surveillance cameras in the hotel,
without prior notice to the Union or affording the Union an
opportunity to bargain over this matter, in violation of Section
8(a)(5) of the Act. Counsel for the General Counsel also seems
to be suggesting that the cameras were intended to monitor
elevators and hallways at the hotel where employees could be
observed, but there is no specific allegation of unlawful surveil-
lance. In any event, counsel for the General Counsel offered
very little evidence during the hearing to support these allega-
tions, and her posthearing brief is, for the most part, silent re-
garding these claims.
The facts are undisputed that surveillance and security cam-
eras have been in place at the hotel since approximately 1980.
They are stationed at the two main entrances to the hotel on
Fifth and Sixth Avenues. The cameras monitor the ingress and
egress to the hotel and the hotel parking lots. The evidence
further establishes that these cameras have been routinely re-
placed and upgraded numerous times over the years as the
available technology has improved. No evidence was offered
to show that the cameras have been moved from their fixed
locations. Witness testimony was that due to vandalism in the
fall of 2009, that the broken cameras were replaced. No evi-
dence was offered that employee work areas of the hotel were
monitored.
It is the Respondent’s position that installing and maintain-
ing security cameras is part of the hotel’s essential duties of
keeping the property safe for guests. Counsel argues that as the
security of the hotel is essential to its business operations, its
security practices and equipment should not be subject to nego-
tiations with the Union. See First National Maintenance Corp.
v. NLRB, 452 U.S. 666, 679 (1981) (“[I]n view of an employ-
er’s need for unencumbered decision-making, bargaining over
management decisions that have a substantial impact on the
continued availability of employment should be required only if
the benefit, for labor-management relations and the collective-
bargaining process, outweighs the burden placed on the conduct
of the business.”).
From the limited evidence offered as to this issue, it appears
that all the Respondent did was to repair and upgrade the ho-
tel’s surveillance cameras, which had been in place for years.
There is absolutely no evidence that this repair and upgrading
was in any way intended to surveil the unit employees. The
expired collective-bargaining agreement was silent regarding
security cameras, and, as far as I am aware, there has never
been any bargaining between the parties on this issue.
I believe that the situation at hand is markedly different than
those cases where an employer installs hidden cameras with the
intent of surreptitiously watching its employees. To the contra-
ry, the Respondent’s security cameras were of long standing
and were intended to provide security for the hotel guests, as
well as for the employees. The camera locations were well
known to the unit employees.
Under the circumstances before me, I am of the view that the
Respondent was not obligated to bargain with the Union over
what amounted only to the upgrading and repair of existing
cameras. Accordingly, I shall recommend that paragraph 9(c)
of the first complaint be dismissed.
SHERATON ANCHORAGE 861
H. Seizing Union Buttons
It is alleged in paragraphs 13(a) and 16 of the first complaint
that the Respondent violated Section 8(a)(1) the Act on De-
cember 8, 2009, when the director of operations, Eduardo
Canes, seized union buttons from employees. Employee
housekeeper Elda Buezo credibly testified that on the morning
of December 8, 2009, she was in the hotel elevator wearing a
prounion button when she ran into Canes. The button read as
follows: “for a fair contract [in English and Spanish] UNITE
HERE!” (GC Exh. 21.) She was also carrying several more
such buttons in her hand.
Buezo testified that Canes asked her to take the button off
and give it to him. He also asked for the buttons she was carry-
ing in her hand. Buezo did as she was directed and removed
the button that she was wearing and handed it and the other
buttons to Canas. According to Buezo, she had intended to
give the extra buttons to her coworkers.
Buezo further testified that until that time, it had not been
unusual for employees to wear union buttons at work, and she
had done so herself in the presence of Canes and other manag-
ers. This was the first time that she had been asked to remove
her button.
Although Canes testified at trial, he did not deny that the in-
cident happened. Buezo seemed a very credible witness, and I
have no reason to think that she fabricated, exaggerated, or
embellished the incident. Accordingly, I conclude that the
incident occurred as Buezo testified.
In his posthearing brief, counsel for the Respondent attacks
Buezo’s credibility and questions whether the incident with
Canes occurred at all. However, counsel never explains why
Canes, who testified at the hearing on behalf of the Respondent,
did not deny that the incident occurred as Buezo claimed. I
draw an adverse inference from Canes’ silence about this mat-
ter, and conclude that had he testified regarding the incident, he
would have supported Buezo’s version of the events.
Counsel for the Respondent argues that even if the incident
happened, the allegation should be dismissed as it had no ap-
parent impact on Buezo’s continued support for the Union.
Counsel points out that Buezo acquired another union button
only a few hours later, during her mid-morning break, which
she wore throughout the hotel. Further, he notes from her tes-
timony that while she was deprived of her supply of union but-
tons, there were plenty of buttons to go around in the employee
cafeteria. However, I find this not to be the correct standard.
What the Board looks for is whether an employer’s action
could reasonably chill the employees’ Section 7 activity, not
whether it in fact did so. In this instance, I find that it did rea-
sonably have that potential.
Employees generally have a protected right under Section 7
of the Act not only to possess, but to display union material at
their place of work, absent evidence that the employer restrict-
ed employee possession of other personal items or that posses-
sion of union materials interfered with production or discipline.
Brooklyn Hospital-Caledonian Hospital, 302 NLRB 785, 785
fn. 3 (1991) (citing Dillingham Marine & Mfg. Co., 239 NLRB
904 (1978), enfd. 610 F.2d 319 (5th Cir. 1980)). An employer
violates the Act by instructing employees not to wear union
buttons, or to remove union buttons. Wayneview Care Center,
352 NLRB 1089, 1115 (2008). In addition, an employer vio-
lates the Act by confiscating union literature and materials from
employees. Brooklyn Hospital-Caledonian Hospital, supra.
Clearly, based on this standard as enunciated by the Board,
Canes’ confiscation of union buttons from Buezo constituted a
violation of the Act.
Accordingly, I conclude that the Respondent’s action in seiz-
ing union buttons from Buezo on December 8, 2009, violated
Section (a)(1) of the Act as alleged in paragraphs 13 (a) and 16
of the first complaint.
I. Denigrating the Union
The first complaint, paragraphs 15(a) through (e), alleges
that the Respondent violated the Act when on about March 22,
2010, Artiles, while in the Jade Restaurant, denigrated the Un-
ion in the eyes of its employees. Allegedly, the denigration
took the form of (a) implementing provisions of its bargaining
proposal; (b) telling the employees the implemented proposal
was meant to “screw” the Union; (c) telling employees that the
Union has not been able to return four terminated employees;
(d) telling employees their union dues are not used by the Un-
ion to represent unit employees, but, instead, are used to buy
cars; and (e) telling employees that Artiles alone has the power
to return unit employee work rules and benefits, which were
changed by the implemented proposals.
As noted in detail in the fact section of this decision, be-
tween March 22 and 25, 2010, a series of approximately five
meetings for bargaining unit employee were held by manage-
ment in the lobby of the hotel, in the Jade Restaurant. These
meetings were conducted during the employees’ 30-minute
lunch period, and the employees were permitted to order lunch
off the menu, with the Respondent paying for the meals. The
purpose of these “meet and greet” meetings between manage-
ment and the unit employees was to have someone make a
presentation to the employees on the specifics of the new medi-
cal insurance plan, the AETNA plan, which as Stokes had ad-
vised Sawyer in March, the Respondent intended on imple-
menting May 1, 2010, and to answer any questions that the
employees might have. As I have already noted, this AETNA
plan constituted an unlawful unilateral change from the existing
Taft-Hartley Health and Welfare Plan as provided for in the
expired contract. Earlier I found that an existing impasse was
broken on March 10, when among other new proposals ex-
changed, the Respondent offered for the first time this AETNA
plan.
In any event, it is counsel for the General Counsel’s conten-
tion that Artiles made certain statements at the Jade Restaurant
meetings, which violated the Act. It is the Respondent’s posi-
tion that these meetings, conducted by Artiles and Fullenkamp,
were called merely to explain the AETNA plan to the employ-
ees, and that there simply were no unlawful statements made by
any managers.
In the fact section of this decision, I set forth in considerable
detail my analysis of what transpired during these meetings. It
would serve no useful purpose to repeat that analysis here.
Instead, the reader is advised to refer back to that section. In
any event, I previously indicated that I found the evidence of-
fered by the General Counsel in support of these allegations
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 862
very confusing, contradictory, inconsistent, and hard to evalu-
ate. Of the employees who attended the Jade Restaurant meet-
ings, approximately 30 testified. It is really difficult to know
precisely what was said by management at those meetings as all
the witnesses seem to recall different and partial versions of
what was discussed. Out of these 30 employees, 8 appear to
testify that Artiles disparaged the Union in some way or made
threatening statements regarding the Union.60
One or more of these eight employees testified that Artiles
said that: they would take the benefit package that he offered or
they would get nothing; that he was the boss and “wore the
pants” in the hotel and could fire anyone he wanted to; that he
wanted the Union out; that the union dues were used by the
union officials to “buy new cars with”; regarding the four dis-
charged employees, he asked, “have you seen them around
here, have they come around here, have they been back?”; re-
garding seniority, that he would continue it, but if he wanted to,
he would take it away; that he could return the 15-room stand-
ard for housekeepers, but that he didn’t want to “bother” or
“molest” the Union; that it was his hotel and he would run it the
way he wanted to; and that there would be “consequences”
from the boycott, and that he would start “cutting people’s
hours” and engaging in “layoffs.”
The remaining approximately 22 employee witnesses who
testified as to attending the meetings at the Jade Restaurant did
not indicate that managers said anything disparaging or threat-
ening about the Union. Of course, Artiles and Fullenkamp
denied making such statements, and they are supported in their
denials by Ernenwine, who attended at least some of the meet-
ings. They claim that the great majority of time was spent dis-
cussing the AETNA plan, answering employee questions about
the new medical insurance, and trying to dispel rumors. The
only subject under examination that Artiles admits discussing
was that of the employees’ union dues, which was allegedly
raised by an employee. In answering the question, Artiles
claims that he merely indicated that union dues did not pay for
the employee benefits provided for under the terms of the con-
tract, such as medical insurance, but that the Respondent pro-
vided that benefit by paying a certain amount per employee per
hour for coverage. It appears that at that meeting, or another,
union supporter Dexter Wray, whose name was raised in con-
nection with this issue, said that the union dues were used for
representation and also for “health benefits.”
Of course, Artiles, Fullenkamp, Ernenwine and all 30 em-
ployee witnesses all acknowledge that Artiles and Fullenkamp
notified the assembled employees that there was a new medical
insurance plan, the AETNA plan, which would be replacing the
existing Taft-Harley Medical Plan as contained in the expired
collective-bargaining agreement. Fullenkamp explained the
specifics of this plan to the employees. I have already deter-
mined that after March 10, the parties were no longer at im-
passe, since impasse was broken by the proposals exchanged on
that date, including the AETNA plan. As the implementation
of the AETNA plan on May 1, 2010, constituted an unlawful
unilateral change in working conditions, informing the employ-
ees of the terms of that plan and of the Respondent’s intent to

60 The eight employees are listed in the fact section of this decision.
implement it constituted a violation of Section 8(a)(1) of the
Act. Accordingly, I find that the Respondent violated the Act,
as alleged in paragraph 15(a) of the first complaint. However,
the other subparagraphs, 15(b) through (e), must be viewed
separately.
Regarding the eight employees who testified that Artiles
made certain disparaging or threatening statements about the
Union, I found that for the most part they testified in a cryptic,
truncated manner regarding these events, and even when re-
sponding to leading questions from counsel they were hard
pressed to recall the specifics of the events in question. The
other 22 employees who testified that they could not recall any
such statements by Artiles were really no better witnesses. In
some instances the problems with these witnesses’ testimony
may be compounded by a language barrier, as the managers
who were alleged to have made the unlawful statements, prin-
cipally Artiles, were reported to have spoken in either Spanish,
English, or both, and the employee witnesses were primarily
speakers of a language other than English, most commonly
Spanish, but in some cases Korean, Thai, Tagalog, Samoan,
Ilocano, or Cambodian. The use of numerous foreign language
interpreters at the hearing may also have compounded the lan-
guage problem.
As I noted earlier, I found Artiles to be circumspect and
careful with his words, and somewhat gruff in voice and man-
ner. He appears to be a straight, no nonsense kind of manager,
who obviously takes great pride in his ability to operate a large
hotel with many employees. He did seem to have a rather “ter-
ritorial” attitude about the hotel, and clearly thought of himself
as “the boss.” For the most part, I found him to be credible,
and he testified without apparent exaggeration or embellish-
ment. I also found Fullenkamp and Ernenwine, whose testimo-
ny supported Artiles, to be reasonably credible. While I have
found that in other incidents Fullenkamp made statements that
constituted unfair labor practices, she did not deny making
those statements.
It is very difficult to evaluate the testimony of the 8 employ-
ee witnesses who testified that Artiles made disparaging or
threatening statements about the Union, or for that matter the
testimony of those 22 employee witnesses who said that no
such statements were made. There is no reason to believe that
any of these 30 witnesses were intentionally lying. To the con-
trary, I believe that they were all doing their best to recall
events that took place at least 6 months earlier, and statements
that may well have been delivered in a language foreign to
them.
Certainly, the weight of the evidence, in terms of numbers of
witnesses, favors the Respondent. Also, and most obvious, the
burden of proof to establish the alleged violations rests with the
General Counsel. Based on the evidence presented, I must
conclude that the General Counsel has failed to meet her bur-
den of proof. The evidence is insufficient to establish that Ar-
tiles made the threatening and disparaging statements on about
March 22, 2010, that are attributed to him, specifically as al-
leged in paragraphs 15(b) through (e) of the first complaint. I
will credit his denials. Accordingly, I shall recommend that
complaint paragraphs 15(b) through (e) be dismissed.
During the hearing, and over counsel for the Respondent’s
SHERATON ANCHORAGE 863
objection, I permitted counsel for the General Counsel to
amend the first complaint as is reflected in the first notice of
intent to amend the complaint (GC Exh. 2, dated August 17,
2010) to add new paragraphs 16 (a) through (d) to the first
complaint. The only significant, substantive change made in
this amendment was to add an allegation that on about March
24, 2010, Artiles, in the Jade Restaurant, denigrated the Union
in the eyes of the employees.61 I permitted this amendment as
it was very closely related in time and substance to the allega-
tions made in paragraph 15 of the first complaint, and because
the Respondent was not prejudiced by the amendment, having
months thereafter to prepare its defense.
The allegations in the new paragraphs 16(a) through (d)
simply repeat some of the allegations in paragraphs 15(a)
through (e), with the only significant difference being the claim
that these denigrating and threatening statements by Artiles
took place in the Jade Restaurant on March 24, rather than
March 22, 2010. The same evidence offered by the General
Counsel in support of complaint paragraph 15 would also cover
the allegations in paragraph 16. There is nothing new or differ-
ent regarding these allegations that would require any further
analysis.
Accordingly, for the reasons that I previously expressed, I
find that subparagraph 16(a) has merit, in that Artiles indicated
to the assembled employees that the Respondent intended to
implement the new AETNA medical insurance plan, which
constituted an unlawful unilateral change, as the parties were
no longer at impasse. Therefore, I conclude that the Respond-
ent violated Section 8(a)(1) of the Act, as alleged in amended
paragraph 16(a) of the first complaint.62 Further, I shall recom-
mend, for the reasons that I previously expressed, that amended
paragraphs 16(b) through (d) of the first complaint be dis-
missed.
It should be mentioned that paragraph 7(b)(iv) of the first
complaint also makes reference to the Respondent allegedly
having “denigrated” the Union in the eyes of the employees,
but during contract negotiations from April 2009 through
March 11, 2010. While this alleged denigration is apparently
different than the denigration that allegedly occurred at the Jade
Restaurant around March 22 and 24, it is unclear to me precise-
ly what the General Counsel is contending. To the extent that
the General Counsel is contending that the Respondent’s ac-
tions at the bargaining table and surrounding the negotiations
were somehow intended to denigrate the Union, I disagree. I
have already concluded, and set forth in great detail, why the
Respondent did not engage in surface bargaining during the
lengthy period of these negotiations. Having concluded that the
Respondent did not engage in surface bargaining, I now further
conclude that the Respondent’s actions as they related to the
bargaining process did not denigrate the Union. Therefore, I
shall recommend that complaint paragraph 7(b)(iv) be dis-

61 The only other nonministerial change made by this amendment
was to delete any reference to the “Alaska Labor Relations Agency”
from the complaint.
62 Complaint pars. 15(a) and 16(a) constitute basically the same alle-
gation. I have found the same violation of the Act, with the difference
in the dates of the violation (2 days) being of no consequence.
missed.
Still another alleged meeting at the Jade Restaurant must be
discussed. During the hearing in this case, I permitted counsel
for the General Counsel to again amend the complaint to add an
allegation that the Respondent, through Artiles, on or about
July 31, 2010, in the Jade Restaurant, denigrated the Union in
the eyes of its employees by telling employees that there had
been no union at the facility for several months, by telling em-
ployees that the Respondent had to take the Union to court, and
by threatening the employees with discharge if they continued
to support the Union. (GC Exh. 62, notice of intent to amend
complaint dated September 27, 2010.) I permitted this amend-
ment over the vigorous objections of counsel for the Respond-
ent on the basis that the allegations raised in the amendment
were substantively closely related to those allegations in the
first complaint and subsequent amendments, were reasonably
close in time to the other events in question, and because the
Respondent would have ample time to defend against the alle-
gations raised in amendment.
The Respondent raises a number of defenses to this allega-
tion, not the least of which is that no such meeting in the Jade
Restaurant was ever held. Artiles testified that he did not recall
a meeting with employees in July 2010 in the Jade Restaurant,
but, rather, only those meetings discussed above that occurred
in March 2010. Fullenkamp testified that no more small-group
meetings with Artiles occurred after March 2010. Further, the
evidence that such a meeting did in fact occur at or near the
date alleged is very questionable.
The first employee to testify about such a meeting was Luz
Maria Zavala. Initially she testified that such a meeting was
held in the Jade Restaurant on July 30, 2009. She was able to
make this statement about the date, specifically the year 2009,
after being given permission to consult a type of diary that she
kept. Despite having access to her diary, when it became clear
under examination that such a date made no sense, she changed
her testimony to the following year 2010. In fact, during cross-
examination, when counsel for the Respondent had access to
the diary used by the witness, he got her to admit that there was
no year recorded in her diary next to the notation July 30, and,
in fact, the closest year to that reference was the date Septem-
ber 30, 2009. In my view, Zavala’s testimony is hopelessly
confused, and I must find that in this regard, it is entitled to no
weight.
Following Zavala’s testimony, employee Audelia Hernandez
testified about a meeting held in the Jade Restaurant with Ar-
tiles making a presentation and a number of employees in at-
tendance. She testified that Artiles, speaking in Spanish, said
that he and the hotel were antiunion, and that it had been 2
months since there had been a union at the hotel. Allegedly,
Artiles then switched to speaking in English and said that if the
employees wanted a union, the door was open for them to
leave. According to Hernandez, Artiles changed back again to
Spanish and said that there were “ignorant people” spreading
the word that there was still a union at the hotel, but that was
not true. Finally, he allegedly said that the hotel had taken the
Union to court, and the hearing was going to start in 2 weeks.
Several other employees, Ana Rodriguez, Maria Hernandez,
and Elda Buezo also seemed to testify regarding this alleged
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 864
July 30 meeting, but their testimony only offered snippets of
the meeting, as testified to by Audelia Hernandez, and they
seemed to be confusing the alleged July meeting with those that
occurred in March 2010.
In fact, there really would have been no reason for Artiles to
have conducted such a July meeting. The AETNA medical
insurance had been placed in effect as of May 1, 2010, certain
provisions of the Respondent’s “final proposal” of August 21,
2009, had been in effect for some time, and as of July 2, 2010,
the Respondent was no longer recognizing the Union as its
employees’ collective-bargaining representative. Also, it
makes no sense that Artiles would hold only one such meeting
in July for a small group of employees, when in March he had
held approximately five meetings for all the unit employees.
Accordingly, I conclude that counsel for the Respondent’s ar-
gument has merit, and believe that it is unlikely that such a
meeting occurred in July 2010. Further, I believe that the em-
ployees are likely confused, and the meeting that they actually
recall is one of those approximately five meetings held between
March 22 and 25, 2010.
To the extent that such a meeting was held in July or March
2010, I reiterate those comments that I made earlier in this de-
cision regarding the meetings held in March, and my character-
ization of Artiles, of course, if in fact the alleged meeting was
held separately in July, then even assuming Artiles made cer-
tain of the comments attributed to him, some of those com-
ments would be harmless. For example, telling the employees
that there was no longer a union at the hotel would be arguably
correct. The Respondent had ceased recognizing the Union
based on the decertification petition, which had been filed sev-
eral months earlier. Of course, whether the Respondent had the
legal right to do so, remains to be seen, but that was at least the
Respondent’s position. Characterizing those who believed
otherwise as being ignorant was, in my view, simply an opinion
on the part of Artiles. Also, telling employees that the Re-
spondent was taking the Union to court, could have been a
reference to the Board hearing, which was scheduled to begin
in August, approximately 1 month later.
While this issue is far from certain, I believe the weight of
the evidence is with the Respondent, and that, in fact, this July
meeting never happened. As noted, both Artiles and Ful-
lenkamp denied that any such meeting for a group of employ-
ees was ever held. In this regard, I find them both credible.
Fullenkamp testified that no small group meetings with Artiles
occurred after March 2010. This seems logical, as the meetings
were held in March to inform the employees about the new
AETNA insurance plan set to go into effect on May 1. In order
to give all the bargaining unit employees specific information
about the AETNA plan, the Respondent needed to schedule
five such meetings. It is simply illogical that in July, after the
AETNA plan went into effect, management decided to hold one
meeting only for a small group of employees. I must ask, to
what end and for what purpose? Counsel for the General
Counsel never adequately explained why these few employees
were selected to allegedly meet with Artiles in July.
I believe that it makes more sense to conclude that the em-
ployees who testified about this July meeting were confused
and were recalling matters that they believe had been raised
during the March meetings. Earlier I discussed in detail my
conclusions regarding the March meetings. I continue to ad-
here to my conclusion that Artiles did not make the unlawful
statements in March attributed to him by certain employees.
The reasons that I gave for reaching that conclusion about the
March meetings would also include those additional statements
that the General Counsel contends were made in July. In any
event, I credit Artiles’ denial that he made any such statements.
Accordingly, I shall recommend that the complaint allegations
that Artiles denigrated the Union in the eyes of its employees
and threatened them with discharge on about July 31, 2010, as
found in the second notice of intent to amend the complaint
(GC Exh. 62), be dismissed.
J. The Decertification Petition/Withdrawal of Recognition
It is alleged in paragraphs 9(a) through 9(c) of the second
complaint that Chief Engineer Ed Emmsley, on behalf of the
Respondent, took certain action to unlawfully assist employees
in the circulation of a petition to decertify the Union as the
collective-bargaining representative of the hotel employees.
Emmsley is an admitted supervisor. The General Counsel con-
tends that this was only one part of a concerted effort by the
Respondent to encourage, coerce, and influence employees to
sign the decertification petition. On the other hand, the Re-
spondent denies being in any way involved in the decertifica-
tion effort of certain of its employees. The Respondent con-
tends that these employees, many of whom testified about this
matter, were merely expressing their individual, uncoerced
decision to decertify the Union, which they felt, for various
individual reasons, was no longer adequately representing their
interests.
On May 20, 2010, a number of employees presented man-
agement with a petition to decertify the Union. (GC Exh. 61.)
This petition had been circulating for some time among the
hotel employees. As is set forth in detail in the fact section of
this decision, a number of the Respondent’s employees were
very active in circulating the petition. These employees includ-
ed: Janet and Jannice Emmsley, the daughters of Ed Emmsley
Senior, who were PBS operators; Ed Emmsley Jr., a security
guard, nonunit employee, and son of Ed Emmsley Senior; Cin-
dy Mathers, banquet captain; Margerita Lucero, housekeeping
supervisor, and Lupita Mejia, morning employee cafeteria at-
tendant.
In the fact section of this decision, I discussed at length the
efforts that Ed Emmsley Senior made to get employees to sign
the decertification petition. I will repeat those facts here, only
to the extent that it is necessary for this discussion. As I noted
earlier, Dexter Wray is an engineer, working under the direct
supervision of Ed Emmsley. Wray testified that in a conversa-
tion with Emmsley in mid-May 2010 he was asked, “Are you
going to sign?” Wray replied, “Sign What?” To which
Emmsley said, “The petition.” Wray knew what petition
Emmsley was referring to, and he declined to sign.
According to the testimony of Wray, over the course of the
next 4 days, Emmsley tried on a number of occasions to get
him to sign the decertification petition. On May 18, Emmsley
sent Wray a “text” message that said, “Just sign it. I will never
put you on the spot. You know I’ll always cover your black
SHERATON ANCHORAGE 865
ass.” Wray testified that following the text message, Emmsley
told him that if he did not sign the petition that he would “be
one of the first ones to be let loose.” Finally being worn down,
Wray then signed the petition.
Emmsley testified and denied that he ever asked Wray to
sign the petition, and denied that he ever sent Wray such a text
message. Further, Emmsley’s wife, Janet E. Emmsley, and
employee Joel Encabo testified that Emmsley did not use such
language as “black ass,” and it would have been out of charac-
ter for him to have done so.
In the fact section of this decision, I spent considerable time
analyzing the respective testimony of Emmsley and Wray. I
also analyzed and discussed the photographs of the screens
from Wray’s cell phone, which purport to show the text mes-
sage that Wray received from Emmsley. For the reasons that I
stated in detail earlier, I credit the testimony of Dexter Wray,
and I discredit the testimony of Ed Emmsley Senior. I con-
clude that Emmsley made the oral and text message statements
attributed to him by Wray.
Accordingly, I conclude that, as alleged in paragraph 9(a) of
the second complaint, Emmsley solicited employees to sign a
decertification petition; as alleged in paragraph 9(b), Emmsley
implied to employees that they would receive favorable treat-
ment if they signed the petition; and as alleged in paragraphs
(9)(c), (i), and (ii), Emmsley interrogated employees regarding
their support for the Union, and told employees that the Re-
spondent would terminate the employment of those employees
who refused to sign the petition. Therefore, I find that by those
actions the Respondent has interfered with, restrained, and
coerced employees in the exercise of their Section 7 rights in
violation of Section 8(a)(1) of the Act.
However, regarding the allegations in subparagraphs
9(c)(iii), (iv), and (v) of the second complaint: that Emmsley
told employees that it was futile to support the Union; that after
the Union “was gone” they would receive a one dollar an hour
raise; and that employees who signed the petition would have
references to discipline expunged from their files, I find no
evidence to support those allegations. Therefore, I shall rec-
ommend to the Board that those subparagraphs be dismissed.
The second complaint alleges in paragraphs 7(a) and (b) and
paragraphs 12 and 13 that the Respondent violated the Act by
withdrawing recognition from the Union as the collective-
bargaining representative of its employees. It is, of course, the
General Counsel’s position that the Respondent’s actions
“tainted” the decertification petition that the employees signed
and presented to management, upon which the Respondent
allegedly based its decision to withdraw recognition. In addi-
tion to Ed Emmsley, counsel for the General Counsel contends
that other supervisors were actively involved in getting em-
ployees to sign the decertification petition.
In her posthearing brief, counsel for the General Counsel ar-
gues that Chef Glynn Rydin forced several employees into
signing the petition. Rydin is an admitted statutory supervisor,
and based on the testimony of a number of witnesses, has ex-
pressed antiunion views. Jose Lantigua was hired as a dish-
washer by the Respondent on May 17, 2010. Before he actual-
ly started working for the Respondent, he had a conversation
with Chef Rydin. According to Lantigua, the day before his
employment began, during this conversation with Rydin, the
chef said, “I’m going to need you to sign over here because the
Union only takes money and you do not receive benefits.”
Lantigua signed the petition and was then sent to the human
resources department where he filled out an application, the
new hire paperwork, and was hired. He reported to work the
following day. Lantigua testified in an open and simple way,
seemed candid, and did not appear to exaggerate or embellish
his testimony. His recollection of events seemed good. Ac-
cordingly, I believe him to be credible and accept his version of
the events that led to his signing of the decertification petition.
I do not believe the testimony of Cindy Mathers, hotel ban-
quet captain, who claims that Lantigua signed the petition in
her presence, not in the presence of the chef. The Respondent
uses Mathers as the “ubiquitous witness,” with the “outstanding
memory” that counsel for the Respondent trots out at every
opportunity to testify about some matter in dispute. I find her
testimony in general suspect, and much less than credible.
A second employee witness, Esusebio Bristol, who is a
breakfast cook at the hotel, testified that he was called into
Rydin’s office and asked to sign a paper. Bristol’s primary
language in Tagalog, and he testified that he had no idea what
he was signing, or what it would mean. He signed the docu-
ment simply because the chef asked him to do so. The docu-
ment that he signed turned out to be the decertification petition.
Bristol seemed genuine in his testimony, was certain of the
incident, appeared relatively calm when testifying, and showed
no sign of stating anything other than the truth. Accordingly, I
find him credible and accept his version of these events.
Regarding Chef Rydin, I do not believe that he testified cred-
ibly concerning these events. Rydin testified that he had noth-
ing to do with the decertification petition, was unaware of its
existence, did not discuss it with employees of the hotel, and
made no effort to get employees to sign the petition. To the
extent that his testimony is contradicted by other witnesses, I
discredit Rydin. He testified in a rather sullen, arrogant man-
ner, leaving me with the clear impression that he thought the
proceedings to be a waste of his time, his testimony, although
not extensive, appeared designed to simply refute any allega-
tion that involved him. He seemed tense, more so than would
seem reasonable for a person of his achievements, and his de-
meanor and testimony left me with the impression that his rec-
ollection was less than genuine.
Based on the above, I conclude that Ed Emmsley Sr. and
Chef Glenn Rydin, both statutory supervisors, engaged in con-
duct designed to coerce employees into signing the decertifica-
tion petition. However, regarding the other alleged supervisors
who circulated the petition or solicited employee signatures, I
find that counsel for the General Counsel has failed to connect
them with the Respondent’s withdrawal of recognition, princi-
pally because she has failed to show that the petition circulators
were in fact supervisors.
In the fact section of this decision, I discussed at length the
duties and responsibilities of Cindy Mathers, banquet captain,
and Margerita Lucero, housekeeping supervisor, both of whom
were principal petition circulators. The reader is directed to
that discussion. For the reasons that I stated therein, I do not
find that either Lucero or Mathers exercised any of the indicia
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
of supervisory authority enumerated in the Act. One other
principal petition circulator, Lupita Mejia, the morning em-
ployee cafeteria attendant, was clearly not a supervisor. She
was responsible for preparing food for the employees who took
their meal break in the morning in the employee cafeteria. No
evidence was offered to establish any supervisory authority for
Mejia.
Counsel for the General Counsel also argues that the in-
volvement of the Emmsley family children in the petition circu-
lation tainted the petition because of Ed Emmsley Senior’s
supervisory status. This argument I find to be without merit.
As I noted above, Ed Emmsley Senior’s actions in attempting
to get Dexter Wray to sign the petition were unlawful. Further,
it was common knowledge that Janet and Jannice were Ed Sen-
ior’s daughters, and Ed Junior was his son. However, there is
absolutely no evidence to establish that any employee signed
the petition because of fear or a belief that turning down one of
the Emmsley children might make Ed Emmsley Senior angry.
That is simply “a leap of faith” too great to make. I find no
connection between Ed Emmsley Senior’s supervisory authori-
ty and the signing of the petition by those employees solicited
by the Emmsley children.
As part of its theory that the decertification petition was
tainted, the General Counsel alleges in paragraphs 10(a), (b),
and (c) of the second complaint that on about May 21, 2010,
Artiles told employee that the petition was a show of support
for the Respondent and for him, and he would terminate any
employees who did not sign the petition; that he denigrated the
Union by telling employees that the Union was “stealing” from
them; and directed employees to find other unit employees who
were willing to sign the decertification petition, and to arrange
a meeting for employees where he could convince them to sign
the petition. In support of this allegation, counsel for the Gen-
eral Counsel offered the testimony of Yanira Medrano.
Medrano is a housekeeper at the hotel, who when testifying
had been employed there for 6 years. Lupita Mejia is
Medrano’s landlady. As I noted above, Mejia is employed as
the hotel’s morning employee cafeteria attendant whose chief
duties include preparing and serving employees’ food and
keeping the employee cafeteria clean. She moves back and
forth between the main kitchen and the employee cafeteria
throughout the course of the day. In May, Medrano got a call
from Mejia. According to Medrano, Mejia told her that Artiles
had said that people who didn’t support him and those who had
not signed the petition were going to be fired. Mejia also alleg-
edly said that Maria Hernandez, Elda Buezo, and Anna Rodri-
guez were all going to be fired right away. The three-named
employees were all well known union supporters.
Regarding this alleged statement by Mejia, as I previously
concluded, it constitutes inadmissible hearsay. It seems to be
offered for the truth of the matter asserted. Further, it does not
constitute an admission against interest of a party opponent, as I
found that Mejia is not a supervisor or agent of the Respondent.
There is no evidence of record as would establish that Mejia
exercises any of the indicia of supervisory authority. She plain-
ly does not hire, fire, discipline, review, or manage any other
employees. Counsel for the General Counsel has failed to offer
any probative evidence in order to sustain her burden of prov-
ing that Mejia is a supervisor or agent under the Act.
After speaking with Mejia, Medrano allegedly confronted
Artiles in his office. She testified that they spoke for over an
hour. According to Medrano, she asked him directly whether
he had said that those employees who did not support him and
failed to sign the petition would be fired. Supposedly, Artiles
responded in the affirmative. At her request, Artiles allegedly
explained what the petition was all about. He then questioned
why she supported the Union, and whether it had done anything
for her. She contends that he stated there would be no more
Union at the hotel, people who supported the Union would be
fired, and that he specifically mentioned three that would be
fired, Anna Rodriguez, Elda Buezo, and Maria Hernandez.
Allegedly, Artiles suggested to Medrano that she gather her
coworkers at her home and inform them of what was happening
with the petition. Sometime later she reviewed the petition and
signed it in the presence of Mejia.
Artiles denied any knowledge of the decertification petition
prior to the time that it was presented to management by the
employees, and denied any effort to get employees to sign such
a petition. Earlier in this decision I stated my view of Artiles
who testified extensively as a straight, no nonsense kind of
manager who was circumspect and careful with his words.
While at some point he probably did have knowledge of the
petition being circulated by the employees, as clearly his super-
visors Ed Emmsley and Chef Rydin did, I seriously doubt that
he spoke the words attributed to him by Medrano. Her story
does not ring true, and I do not find her credible in this regard.
Artiles is not a verbose individual. I simply cannot envision an
hour conversation where this busy hotel general manager would
take time from his schedule to threaten a housekeeper with
termination for not signing the petition, and make threatening
statements towards other employees, who he allegedly named.
This would be totally out of character for the man who testified
before me on four or five different occasions. I do not believe
that the conversation occurred as testified to by Medrano.
Based on the above-credibility determinations, I conclude
that the General Counsel has failed to establish that Artiles
made the statements on about May 21, 2010, attributed to him
by Medrano. Accordingly, I shall recommend to the Board that
paragraphs 10(a), (b), and (c) of the second complaint be dis-
missed.
In an effort to support the contention set forth in paragraphs
7(a) and (b) and paragraphs 12 and 13 of the second complaint
that the Respondent’s actions tainted the decertification peti-
tion, resulting in an unlawful refusal to recognize and to bar-
gain collectively with the Union, counsel for the General Coun-
sel argues in her posthearing brief that the Respondent’s cumu-
lative conduct must be considered. By this conduct she is refer-
ring not only to the unlawful actions of Ed Emmsley Senior and
Chef Rydin in coercing employees to sign the petition, but to
the additional unlawful conduct of the Respondent, as found by,
specifically: in issuing suspensions and/or written disciplines to
nine employees on about November 19, 2009; in discharging
four employees on about February 17, 2010; in refusing to fur-
ther bargain with the Union since March 11, 2010; in failing to
timely notify the Federal Mediation and Conciliation Service of
the existence of a dispute with the Union prior to making
SHERATON ANCHORAGE 867
changes to the expired contract, which changes it made unilat-
erally in mid-October 2009 by increasing the number of rooms
its housekeepers are required to clean, by ceasing to pay for
meal breaks, by imposing a fee on employee purchases in the
cafeteria; in unilaterally implementing a new AETNA medical
insurance plan and ceasing payments to the extant plan on
about May 1, 2010; and in unilaterally assigning non-
bargaining unit security work to unit engineers.
In order to support a withdrawal of recognition challenged
by an incumbent bargaining representative, an employer must
“prove by a preponderance of the evidence that the union had,
in fact, lost majority support at the time the employer withdrew
recognition.” Levitz Furniture Co., 333 NLRB 717, 725
(2001). An employer’s withdrawal of recognition must occur
in a context free of unfair labor practices. Radisson Plaza Min-
neapolis, 307 NLRB 94, 96 (1992), enfd. 987 F.2d 1376 (8th
Cir. 1993). The Board has held that any question of representa-
tive status, “. . . must be raised in a context free of unfair labor
practices of the sort likely, under all the circumstances, to affect
the union’s status, cause employee disaffection, or improperly
affect the bargaining relationship itself.” Lee Lumber, 322
NLRB 175, 176–177 (1996).
In the matter before me, the Respondent relies entirely on the
decertification petition as objective proof of the Union’s actual
loss of majority support. In order to buttress its argument, the
Respondent during the trial produced as witnesses a substantial
number of the employees who signed the petition, all in an
effort to establish that they did so of their own free will and for
reasons mostly involving their dissatisfaction with the Union.
However, I am of the view that these subjective reasons on the
part of the individual employees are largely immaterial in the
face of evidence of numerous and serious unremedied unfair
labor practices committed by the Respondent, especially in-
volving the negotiation process, the denial of Section 7 rights,
and misconduct regarding the circulation of the petition itself.
Such objective evidence establishes unfair labor practices by
the Respondent of the kind that would inevitably tend to dissi-
pate support for the Union among bargaining unit employees.
It is well established that an employer may not lawfully
withdraw recognition from a union in the context of unreme-
died unfair labor practices of a nature likely to cause disaffec-
tion with the union among employees. Master Slack Corp., 271
NLRB 78, 84 (1984). The Board has held that prior unreme-
died unfair labor practices “remove as a lawful basis for an
employer’s withdrawal of recognition the existence of a decer-
tification petition . . . which, in other circumstances, might be
considered as providing objective considerations demonstrating
a free and voluntary choice on the part of employees to with-
draw their support for the labor organization.” Pittsburgh &
New England Trucking Co., 249 NLRB 833, 836 (1980).
Still, the unfair labor practices must be of a character as to
either affect the union’s status, cause employee disaffection, or
improperly affect the bargaining relationship itself. Master
Slack, supra, citing Guerdon Industries, 218 NLRB 658, 659–
661 (1975). Therefore, in the matter before me, the Respond-
ent’s unfair labor practices must have caused the employees’
disaffection or at least had a “meaningful impact” in bringing
about that disaffection. Deblin Mfg. Corp., 208 NLRB 392
(1974). There must be a causal relationship between the unlaw-
ful conduct and the decertification petition presented to the
Respondent on May 20, 2010. Olson Bodies, Inc., 206 NLRB
779 (1973).
I am of the view, that the Respondent’s pervasive unfair la-
bor practices, both at the bargaining table and away from it,
tainted the employee decertification petition. The Board has
made it clear that it will dismiss a decertification petition where
there are concurrent unfair labor practices that interfere with the
employee free choice, and are “inherently inconsistent” with
the petition itself. Overnite Transportation Co., 333 NLRB
1392, 1393 (2001) (conduct that taints an incumbent union’s
subsequent loss of majority support is inconsistent with the
petition).
In the matter before me, a short review of those unfair labor
practices committed by the Respondent is necessary to deter-
mine their connection to the decertification petition. To begin
with, I have concluded that the Respondent committed serious
violations of Section 8(a)(1) and (3) of the Act when on about
November 19, 2009, it suspended and/or issued written disci-
plinary warnings to nine union supporters who presented Gen-
eral Manager Artiles with the Union’s boycott petition; and
when on about February 3 and 17, 2010, it suspended and then
terminated four union supporters who had distributed handbills
outside the hotel calling on potential customers to boycott the
hotel. Collectively, these employees were some of the most
vocal and ardent union supporters in the bargaining unit. They
were engaged in the most basic forms of collective and union
activity, for which they were unlawfully disciplined by the
Respondent. In so doing, the Respondent likely chilled the
willingness of employees to engage in Section 7 activity, at a
time when the Union was still actively engaged in collective-
bargaining negotiations with the Respondent. One wonders
how such serious misconduct by the Respondent, which strikes
at the very heart of employees’ Section 7 rights, could not have
dramatically demoralized the unit employees, resulting in a
diminution of support for the Union. Similarly, the Respond-
ent’s unlawful unilateral assignment of security duties to bar-
gaining unit engineers around July through September 2009
would have likely undermined the Union’s status as bargaining
representative, diminishing its support among the unit employ-
ees. Such actions away from the bargaining table, but while
bargaining was actively occurring, are of the type that “would
improperly affect the bargaining relationship so as to negate the
legality of the later withdrawal of recognition.” Rock-Tenn
Co., 319 NLRB 1139, 1146 (1995), enfd. 101 F.3d 1441 (D.C.
1996).
Obviously, the Respondent’s conduct at the bargaining table
was directly tied to the way the unit employees felt about their
Union. I have found that the Respondent violated the Act when
in mid-October 2009 it unilaterally implement changes in the
terms and conditions of the expired collective-bargaining
agreement, without having first given notice to the FMCS un-
der Section 8(d)(3) of the Act. These changes were substantial
and included: increasing the number of rooms attendants were
expected to clean from 15 to 17; ceasing to pay for meal
breaks; and imposing a fee on employee purchases in the cafe-
teria. Later, on March 11, 2010, the Respondent prematurely
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
declared an impasse in negotiations, and violated the Act on
May 1, 2010, by unilaterally implemented a new medical insur-
ance plan (the AETNA Plan), and by ceasing payments to the
extant medical insurance plan (the Taft-Hartley Plan). Further,
since March 11, 2010, the Respondent has unlawfully failed
and refused to continue negotiating with the Union. Such con-
duct would have naturally left employees with the impression
that the Union was impotent and unable to stop the Respondent
from unilaterally changing their terms and conditions of em-
ployment. Of course, this lack of progress at the negotiating
table would likely have caused the unit employees to question
their need for such a “powerless” bargaining representative.
Where an employer’s bad-faith bargaining creates the condi-
tions under which employees believe that “no real prospect of
an agreement [is] in sight,” and the employer continues to “op-
erate the hotel as if employees had no bargaining representa-
tive,” the Board has disregarded the decertification petition
signed by such employees and found the employer’s withdraw-
al of recognition illegal. Radisson Plaza Minneapolis, supra at
96–97, 115 (employer’s away from the table conduct, together
with its bad-faith tactics at the table, tainted employee disaffec-
tion). See also NLRB v. Powell Electrical Mfg. Co., 906 F.2d
1007, 1015 (5th Cir. 1990) (finding majority supported, anti-
union petition tainted where employer unilaterally implemented
final bargaining offer soon after employees began strike, but
before parties were at a good faith impasse).
In the matter at hand, I have no doubt that the Respondent’s
unremedied unfair labor practices committed both at the bar-
gaining table and away from it were more than enough incen-
tive for employees to decide that as the Union was not able to
prevent the Respondent from essentially acting unilaterally in
determining their terms and conditions of employment, that
there was no reason to maintain the Union as their collective-
bargaining representative. In any event, as if those were not
sufficient reasons for the unit employees to question the viabil-
ity of the Union, Supervisors Ed Emmsley Senior and Chef
Rydin, on behalf of the Respondent, unlawfully assisted those
employees circulating the petition. As I found earlier,
Emmsley violated the Act when he coerced Dexter Wray into
signing the petition. Similarly, Rydin coerced employees Jose
Lantigua and Esusebio Bristo into signing the petition.
The Board has made it clear that an employer may not “initi-
ate a decertification petition, solicit signatures for the petition
or lend more than minimal support and approval to the securing
of signatures.” Sociedad Espanola de Auxilio Mutuo Y Benefi-
cencia de P.R., 342 NLRB 458, 459 (2004), quoting Eastern
States Optical Co., 275 NLRB 371, 372 (1985). Plainly ex-
pressed, the Board has stated that “when an employer engages
in conduct designed to undermine support for the union and to
impermissibly assist a decertification effort, the decertification
petition will be found tainted and will not provide the employer
with a basis for withdrawing recognition.” Narricot Industries,
L.P., 353 NLRB 775 (2009) (citing SFO Good-Nite Inn, LLC,
352 NLRB 268, 270–271 (2008).
Clearly, the Respondent provided more than minimal or
“ministerial” support when its supervisors, Emmsley and
Rydin, coerced three employees into signing the decertification
petition. Further, when added to that coercive conduct is the
Respondent’s cumulative actions in committing unremedied
unfair labor practices both at the bargaining table and away
from it, but while negotiations were still in progress, there can
be little doubt that the petition did not represent a true and un-
encumbered measurement of the employees’ feelings about the
Union.
Accordingly, I conclude that by the actions of Emmsley and
Rydin, the Respondent has unlawfully assisted employees in
the solicitation of signatures to decertify the Union in violation
of Section 8(a)(1) of the Act. Further, I conclude that based on
that conduct, plus as a result of the Respondent’s unremedied
unfair labor practices, the decertification petition presented to
the Respondent by employees on about May 20, 2010, was
tainted and cannot represent objective proof of the Union’s
actual loss of majority status. Therefore, I find that by with-
drawing recognition from the Union as the exclusive collective-
bargaining representative of the bargaining unit on July 2,
2010, and by refusing since that date to recognize and bargain
with the Union, the Respondent is in violation of Section
8(a)(5) and (1) of the Act, as alleged in paragraphs 7(a), (b), 12,
and 13 of the second complaint.
K. Dues Checkoff
Paragraphs 8(a), (b), (c), (d), 12, and 13 of the second com-
plaint allege that since July 2, 2010, the Respondent has unilat-
erally failed and refused to honor its employees’ union dues-
checkoff authorization, and to collect and remit those funds to
the Union in violation of Section 8(a)(5) the Act. It is undis-
puted that since July 2, 2010, the Respondent has not honored
employees’ dues deduction agreements, nor to remit those
funds to the Union, based apparently on the Respondent’s con-
tention that the Union no longer represented the employees in
the bargaining unit, and because the contract with its dues-
checkoff provisions had expired.
As counsel for the General Counsel did not specifically ar-
gue her theory as to this complaint allegation, I am at a loss to
understand exactly what she is claiming. The facts in this case
establish that after a number of agreements between the parties
to extent the terms of the last collective-bargaining agreement,
on August 31, 2009, the contract finally expired without an
agreement on any further extensions.
The Board has held that an employer does not violate Sec-
tion 8(a)(5) of the Act by unilaterally ceasing a checkoff ar-
rangement after contract expiration, as the checkoff arrange-
ment ends when the contract creating the checkoff expires.
Hacienda Resort Hotel & Casino, 331 NLRB 665 (2000).
More recently, the Board has continued to so hold, with a re-
finement to consider the requirements of Section 8(d)(3) of the
Act. In Whitesell Corp., 352 NLRB 1196, 1198 (2008), the
Board held that an employer violated Section 8(a)(5) by unilat-
erally discontinuing dues checkoff prior to providing the FMCS
with the appropriate 8(d)(3) contract termination notice. In
reaching its decision, the Board cited to Petroleum Mainte-
nance Co., 290 NLRB 462, 463 (1988), and said that under that
extant precedent, “although the dues-check provision expired
when the parties’ existing agreement terminated . . ., Section
8(d)(3) required the [r]espondent to maintain dues checkoff
until . . . 30 days after it provided the requisite notice to the
SHERATON ANCHORAGE 869
FMCS.”
In the matter before me, while the contract between the par-
ties expired on about August 31, 2010, it is uncontested that the
Respondent did not give written notice to the FMCS of a dis-
pute with the Union and of its intention to change the terms of
the contract until February 3, 2010. Thus, the Respondent was
not privileged to cease honoring the dues-checkoff provisions
until March 5, 2010. However, the Respondent did not cease
collecting the union dues pursuant to the checkoff provision of
the expired contract until July 2, 2010, well after the required
30 day period for notice to the FMCS. Accordingly, as of July
2, the Respondent was neither legally obligated to collect these
dues, nor to remit such monies to the Union. Therefore, I shall
recommend to the Board that paragraphs 8(a), (b), and (c) of
the second complaint be dismissed.
L. Summary of Findings
In an effort to help the reader understand what is admittedly
a long, complicated decision, I have drafted this summary of
findings as an overview on my conclusions, which are set forth
in detail above. I have concluded that the Respondent and the
Union bargained over the terms of a successor collective-
bargaining agreement for an extended period of time, from
October 27, 2008, through March 11, 2010. During that period,
the parties met face to face in Anchorage, Alaska, on 10 sepa-
rate dates. The parties held highly diverse views on those con-
tract items separating them, and, at times, the negotiations were
fairly acrimonious. These negotiations were conducted during
a period of high economic distress in the hospitality industry in
general, and, in particular, for the hotel industry in Anchorage,
Alaska. Throughout negotiations it was the Respondent’s stat-
ed intent to achieve a contract that was fiscally responsible,
meaning an agreement that improved the hotel’s financial situa-
tion by limiting costs to the extent possible. Conversely, the
Union was intent on maintaining those wages, benefits, and
working conditions that the unit employees had achieved over
years of contract negotiations with prior managers of the prop-
erty, and, if possible, to improve on them.
There is no doubt that both parties engaged in very hard bar-
gaining. However, I am convinced that in that context, the
Respondent did not engage in surface bargaining. The pro-
posals offered by the Respondent, its position taken at the bar-
gaining table, the extensive written communication between the
parties, the statements made by its principal negotiator, Arch
Stokes, and its efforts to justify its proposals and counter pro-
posals lead me to the conclusion that the Respondent initially
intended in good faith to reach a contract agreement with the
Union, as long as that could be done while at the same time
achieving its goal of financial responsibility. In the final analy-
sis, that did not happen, but not because the Respondent set out
initially to frustrate the bargaining process. While the principal
union negotiator, Rick Sawyer, did not approve of the way
Stokes conducted negotiations on behalf of the Respondent, I
do not believe that it was Stokes’ intent to frustrate the process
so as to inevitably reach impasse. While ultimately certain of
the Respondent’s actions caused there to be a breakdown in
negotiations, and while I found these actions to constitute bad
faith bargaining, I do not believe that it was the Respondent’s
original plan to cause such an event. Never the less, the Re-
spondent is responsible for its ultimate conduct, and for the
unfair labor practices that resulted from that conduct.
The parties remained “at loggerheads” throughout most of
the negotiations. That initial inability to reach agreement or
even make any significant movement towards agreement re-
sulted in the parties being at a bargaining impasse as of August
21, 2009, when the Respondent presented the Union with its
“firm and final offer.” However, the Respondent, as the “initi-
ating” party, failed to notify the Federal Mediation and Concili-
ation Service of the existence of a contract dispute, as it was
required to do prior to making changes to the expired contract.
While the Respondent made significant changes to the terms
and conditions of employment of its unit employees in mid-
October 2009, it never gave the requisite notice to the FMCS
until February 3, 2010. Accordingly, by imposing those unilat-
eral changes that the Respondent instituted as of mid-October,
specifically increasing the number of rooms housekeepers were
required to clean in a shift from 15 to 17, ceasing to pay for
employee meal breaks, and imposing a fee on employee pur-
chases in the cafeteria, it was engaged in bad-faith bargaining
and in a failure and refusal to negotiate with the Union in viola-
tion of Section 8(a)(5) of the Act.
Despite having reached impasse, the parties continued to
bargain, and progress was finally made. On March 10, 2010,
the Union made a new proposal to the Respondent, which in-
cluded significant compromises in the areas of room attendant
cleaning requirements, contribution rates for medical insurance,
and wages. The Respondent also offered a significant change,
proposing an AETNA medical insurance plan in place of a
CIGNA medical insurance plan that had previously been of-
fered. These changes were sufficiently significant to break any
impasse that had existed since August 21, 2009. However,
rather than wait for the Union to have a reasonable period of
time in which it could consider and respond to the new AETNA
proposal, and without fully negotiating those changes that the
Union had proposed, the Respondent declared impasse the very
next day, March 11, 2010. Further, despite being invited back
to the bargaining table, the Respondent refused to return. The
Respondent’s action in declaring impasse was premature and
constituted bad-faith bargaining and a failure and refusal to
bargain in good faith in violation of Section 8(a)(5) of the Act.
Concomitantly, the unilateral implementation by the Respond-
ent of the AETNA medical insurance plan on about May 1,
2010, and the discontinuation of payments to the medical insur-
ance carrier under the plan as provided for in the expired con-
tract constituted a unilateral change in violation of Section
8(a)(5) of the Act. Finally, the Respondent’s failure and refusal
to return to the bargaining table also constituted a violation of
Section 8(a)(5) of the Act.
In addition to those unfair labor practices committed at the
bargaining table, the Respondent also violated the Act away
from the table during this same period of time. In mid-
November 2009, the Respondent suspended and/or issued writ-
ten disciplinary warnings to nine employees who while on their
own time peacefully presented a boycott petition to the hotel
general manager. Further, during February 2010, the Respond-
ent suspended and subsequently terminated four employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
who while on their own time engaged in peacefully distributing
handbills to members of the public in front of the hotel, seeking
to have them boycott the hotel. The Respondent’s conduct
constituted a violation of Section 8(a)(1) and (3) of the Act, as
it was in response to the those employees’ Section 7 activity.
The Respondent’s behavior was clearly intended to discourage
any further union activity by its employees.
Other assorted unfair labor practices were also committed by
the Respondent. During the summer of 2009, it unilaterally
assigned to the unit engineers certain nonunit security duties,
without notice to or bargaining with the Union, in violation of
Section 8(a)(1) and (5) of the Act. Further, its supervisor con-
fiscated union buttons on about December 8, 2009, and since
November 1, 2009, it has maintained and enforced unlawful
rules of conduct in its employee handbook, all in violation of
Section 8(a)(1) of the Act.
On July 2, 2010, the Respondent withdrew recognition from
the Union, basing its action on a decertification petition pre-
sented to it by employees. However, I have concluded that the
petition was tainted by the Respondent’s unfair labor practices
and could not constitute objective evidence of a loss of majority
status by the Union. Several supervisors had unlawfully solic-
ited employees to sign the decertification petition in violation
of Section 8(a)(1) of the Act. Further, the Respondent’s actions
at the bargaining table undermined support for the Union
among the bargaining unit members. Those actions included
twice declaring impasse, once prematurely, failing to timely
notify the FMCS of the existence of a contract dispute, and
unilaterally instituting changes in the terms and conditions of
the employment of its employees. Also, the cumulative con-
duct of the Respondent, including its actions away from the
bargaining table, had the effect of diminishing the Union in the
eyes of the unit members. Actions that strike at the heart of
Section 7 activity, such as disciplining employees for distrib-
uting handbills and presenting petitions to management are of
the kind that would especially undercut support for the Union.
Having found that the petition was tainted by the Respondent’s
unfair labor practices, I have concluded that the Respondent’s
withdrawal of recognition from the Union and its refusal to
continue to negotiate constituted violations of Section 8(a) (1)
and (5) of the Act.
To the extent that certain complaint allegations are not sup-
ported by the evidence of record, I have recommended to the
Board that said allegations be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Remington Lodging & Hospitality, LLC,
d/b/a The Sheraton Anchorage, Anchorage, Alaska, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, UNITE HERE! Local 878, AFL–CIO, is a la-
bor organization within the meaning of Section 2(5) of the Act.
3. The Union is the exclusive collective-bargaining repre-
sentative of all the employees employed at the Sheraton An-
chorage hotel, with the exception of guards, supervisors, mana-
gerial employees, clerical employees, and confidential employ-
ees, which unit is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.63
4. At all times since at least December 2006, the Union,
based on Section 9(a) of the Act, has been the exclusive collec-
tive-bargaining representative of the unit employees.
5. At no time since at least December 2006, has the Union
lost its majority status in the bargaining unit.
6. By the following acts and conduct the Respondent has vio-
lated Section 8(a)(1) and (5) of the Act.
(a) Making unilateral changes in its employees’ terms and
conditions of employment on or about mid-October 2009,
without having notified the Federal Mediation and Conciliation
Service of a contract dispute, which changes included increas-
ing the number of rooms its employees are expected to clean,
ceasing to pay for meal breaks, and imposing a fee on employ-
ee purchases in the cafeteria.
(b) Prematurely declaring an impasse in collective bargain-
ing on or about March 11, 2010.
(c) Making unilateral changes in its employees’ terms and
conditions of employment on or about May 1, 2009, by institut-
ing a new AETNA medical insurance plan for its employees,
and by ceasing to make payments to the medical insurance
carrier under the plan as provided for in the expired collective-
bargaining agreement.
(d) Failing to notify the Federal Mediation and Conciliation
Service of the existence of a contract dispute with the Union
and provide 30 days notice as required under Section 8(d)(3) of
the Act prior to making certain unilateral changes in the terms
and conditions of its employees’ employment on about mid-
October 2009.
(e) Failing and refusing to continue negotiating with the Un-
ion since March 11, 2010, after prematurely declaring an im-
passe in bargaining.
(f) Unilaterally assigning bargaining unit engineers nonunit
security duties during the summer of 2009, without notifying
and bargaining with the Union.
(g) Since July 2, 2009, withdrawing recognition from the
Union, without possessing untainted objective evidence of loss
of the Union’s majority status.
7. By the following acts and conduct, the Respondent has vi-
olated Section 8(a)(1) and (3) of the Act.
(a) Issuing suspensions and/or written disciplines to employ-
ees Gina Tubman, Joanna Littau, Anna Rodriguez, Maria Her-
nandez; Lucy Dudek, Su Ran Pak, Troy Prichacharn, Juanita
Bourgeois, and Joey Pitcher on or about November 19, 2009,
because they engaged in union and protected concerted activity
when they peacefully presented a boycott petition to the Re-
spondent’s general manager.
(b) Suspending and subsequently terminating employees Gi-
na Tubman, Joanna Littau, Lucy Dudek, and Troy Prichacharn,
on or about February 3 to 17, 2010, because they engaged in

63 As noted earlier, laundry workers and spa workers are two catego-
ries of employees that the parties could not agree were included in the
represented unit. While the General Counsel and the Union contend
that these employees are included in the unit, the Respondent denies
that assertion. Except for these employees, the parties stipulated to the
inclusion and exclusion of the employees in the unit set forth above. I
hereby make no finding regarding the inclusion or exclusion of laundry
and spa workers in the represented unit.
SHERATON ANCHORAGE 871
union and protected concerted activity when they peacefully
distributed handbills to members of the public in front of the
hotel in a effort to get such members of the public to boycott
the hotel.
8. By the following acts and conduct, the Respondent has vi-
olated Section 8(a)(1) of the Act.
(a) Since on or about November 1, 2009, maintaining and/or
enforcing the following eight rules in its employee handbook
(Remington associate handbook):64
First rule: employees “agree not to return to the hotel before
or after [their] working hours without authorization from [their]
manager;”
Second rule: employees “must confine their presence in the
hotel to the area of their job assignment and work duties. It is
not permissible to roam the property at will or visit other parts
of the hotel, parking lots, or outside facilities without the per-
mission of the immediate Department Head;”
Third rule: “distribution of any literature, pamphlets, or other
material in a guest or work area is prohibited. . . . Solicitation
of guests by associates at anytime for any purpose is also inap-
propriate;”
Fourth rule: employees are prohibited from disclosing confi-
dential information, including “personnel file information” and
“labor relations” information; when disclosure is required “by
judicial or administrative process or order or by other require-
ments of law,” employees must “give ten days’ written notice
to [Respondent’s] legal department prior to disclosure;”
Fifth rule: employees may not “give any information to the
news media regarding the Hotel, its guests, or associates, with-
out authorization from the General Manager and to direct such
inquiries to his attention;”
Sixth rule: “conflict of interest with the hotel or company is
not permitted;”
Seventh rule: “Behavior which violates common decency or
morality or publicly embarrasses the Hotel or Company” is
prohibited; and
Eighth rule: “Insubordination or failure to carry out a job as-
signment or job request of management” is prohibited.
(b) Confiscating prounion buttons being worn and carried by
employees.
(c) Coercing and soliciting employees into signing a petition
seeking to decertify the Union as the collective-bargaining
representative of the unit employees.
(d) Telling employees that they would receive favorable
treatment from the Respondent if they signed the decertification
petition.
(e) Threatening employees that they would be terminated if
they refused to sign the decertification petition.
(f) Interrogating employees regarding their support for the
Union.
(g) Denigrating the Union in the eyes of the unit employees
by informing them that the Respondent intended to unilaterally
implement certain changes in their terms and conditions of
employment, specifically in their medical insurance benefits,
without the parties having first reached a good-faith collective-

64 These rules are listed in pars. 11 (a) through (h) of the first com-
plaint.
bargaining impasse.
9. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
10. The Respondent has not violated the Act except as set
forth above.
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 evidence having established that the Respondent dis-
charged its employees Gina Tubman, Joanna Littau, Lucy
Dudek, and Troy Prichacharn, and also previously suspended
and/or issued written disciplinary warnings to its employees
Gina Tubman, Joanna Littau, Ana Rodriguez, Maria Hernan-
dez, Lucy Dudek, Su Ran Pak, Troy Prichacharn, Juanita Bour-
geois, and Joey Pitcher, my recommended order requires the
Respondent to make them whole. While the evidence of record
indicates that all disciplined employees were previously rein-
stated with backpay, to the extent that they have in some re-
spects not been made whole, my recommended order requires
the Respondent to offer them immediate reinstatement to their
former positions, displacing if necessary any replacements, or if
their positions no longer exist, to substantially equivalent posi-
tions, without loss of seniority and other privileges previously
enjoyed, and to make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
them. My recommended order further requires that backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), plus daily compound
interest as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
The recommended order also requires that the Respondent
shall expunge from its files and records any and all references
to the unlawful discharges, suspensions, and written warnings
issued to the above-named employees, and to notify them in
writing that this has been done and that the unlawful discrimi-
nation will not be used against them in any way. Sterling Sug-
ars, Inc., 261 NLRB 472 (1982). Further, the Respondent must
not make any reference to the expunged material in response to
any inquiry from any employer, employment agency, unem-
ployment insurance office, or reference seeker, or use the ex-
punged material against them in any other way.
Also, having found various provisions in the Respondent’s
employee handbook unlawful, the recommended order requires
that the Respondent revise or rescind the unlawful rules, and
advise its employees in writing that said rules have been so
revised or rescinded.
Having found that the Respondent violated the Act by bar-
gaining in bad faith in failing to timely notify the FMCS of the
existence of a labor dispute, in prematurely declaring an im-
passe, and in subsequently withdrawing recognition from the
Union, I shall recommend that the Respondent, on request of
the Union, bargain collectively and in good faith with the Un-
ion concerning terms and conditions of employment of unit
employees, and, if an understanding is reached, to embody it in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
a signed agreement. In light of the Respondent’s unlawful
withdrawal of recognition from the Union, I will order the Re-
spondent, on the resumption of bargaining, to reinstate all tenta-
tive agreements reached by the parties during their contract
negotiations. See Health Care Services Group, 331 NLRB 333
(2000).
Further, as I found that the Respondent made certain unlaw-
ful unilateral changes in the terms and conditions of employ-
ment of the unit employees, I shall recommend that the Re-
spondent be ordered to, at the request of the Union, rescind any
and all of those changes. These include the requirement that
attendants clean 17 rooms per shift, that employees no longer
receive a paid 30-minute meal break, and that the employees
are required pay for those meals that they receive from the em-
ployee cafeteria. Regarding the Respondent’s unilateral im-
plementation of the AETNA medical insurance plan on about
May 1, 2010, I shall order the Respondent to, at the Union’s
request, restore to bargaining unit employees the health insur-
ance coverage that they enjoyed before the Respondent unlaw-
fully changed such coverage. The Respondent shall be required
to make whole bargaining unit employees for all losses they
suffered as a result of the Respondent’s unlawful unilateral
changes, plus daily compound interest as prescribed in Ken-
tucky River Medical Center, supra. This includes any and all
out of pocket medical expenses that unit employees were re-
quired to pay themselves as a result of no longer being covered
by the medical insurance plan in existence prior to the Re-
spondent’s implementation of the AETNA plan on or about
May 1, 2010.65

65 When remedying an unlawful unilateral change in terms or condi-
tions of employment, the Board typically orders a respondent to cease
and desist from making unilateral changes and to rescind the unlawful
change, thus restoring the status quo ante. See, e.g., Bohemian Club,
351 NLRB 1065, 1068 (2007); Benteler Industries, 322 NLRB 715,
721 (1996), enfd. mem. 149 F.3d 1184 (6th Cir. 1998). However, when
the unlawful change may have benefitted unit employees, the Board
orders a respondent to rescind the change only upon the union’s re-
quest. See, e.g., AK Steel Corp., 324 NLRB 173, 186 (1997); Hospital
San Rafael, Inc., 308 NLRB 605, 609 (1992), enfd. 42 F.3d 45 (1st Cir.
1994); Vibra-Screw, Inc., 301 NLRB 371, 371 fn. 2 (1991); San Anto-
nio Portland Cement Co., 277 NLRB 309, 317 (1985). “[T]he Board’s
standard remedy in Section 8(a)(5) cases involving unilateral changes
resulting in losses to employees is to make whole any employee affect-
ed by the change.” Grand Rapids Press, 325 NLRB 915, 916 (1998),
enfd. mem. 208 F.3d 214 (6th Cir. 2000); see also Trim Corp. of Amer-
ica, 349 NLRB 608, 609–610 (2007).
In similar fashion, the Board has remedied unlawful unilateral
changes in benefit plans by ordering the respondent to rescind the bene-
The Respondent shall be required to post a notice that as-
sures its employees that it will respect their rights under the
Act.66 In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means.67
In her posthearing brief, counsel for the General Counsel re-
quests that the notice be read to assembled employees in Eng-
lish and Spanish by either a responsible management official of
the Respondent, or by an agent of the NLRB in the presence of
a responsible management official of the Respondent. In the
circumstances of this case, I believe that such notice reading is
an appropriate remedy. The Respondent’s violations of the Act
are sufficiently serious and widespread that reading of the no-
tice will be necessary to enable employees to exercise their
Section 7 rights free of coercion.68 Accordingly, I shall rec-
ommend that the Respondent be ordered to have the notice
publicly read, in both English and Spanish, by a responsible
corporate executive in the presence of a Board agent or, at the
Respondent’s option, by a Board agent in the presence of a
responsible corporate executive.
[Recommended order omitted from publication.]

fit plan changes upon the union’s request and to make whole any em-
ployee who suffered losses as a result of the changes. In these cases,
the Board does not condition make-whole relief on the union having
requested rescission of the benefit plan changes. Goya Foods of Flori-
da, 356 NLRB 1461 (2011) (specifically overruling Brooklyn Hospital
Center, 344 NLRB 40 (2005)); Scott Brothers Dairy, 332 NLRB 1542,
1544 (2000); Scepter Ingot Castings, Inc., 331 NLRB 1509, 1510, 1517
(2000), enfd. 280 F.3d 1053 (D.C. Cir. 2002); St. Vincent Hospital, 320
NLRB 42, 51 (1995); Mount Hope Trucking Co., 313 NLRB 262, 263
(1993); Metro Medical Group, 307 NLRB 1184, 1193 (1992).
66 As the Respondent has a large number of employees whose prima-
ry language is Spanish, the Respondent shall be required to post the
paper notice in both English and Spanish. A significant number of the
Respondent’s employees speak neither English nor Spanish as their
primary language. However, it would be impractical to translate the
notice into each of the many native languages spoken by each and
every employee. Further, from my observation of the many employees
who testified using interpreters, I am of the belief that they understand
sufficient English and/or Spanish to comprehend the notice, especially
in light of my order that it be read to assembled employees.
67 J. Picini Flooring, 356 NLRB 6 (2010).
68 HTH Corp., 356 NLRB 1397 (2011); Homer D. Bronson Co., 349
NLRB 512, 515–516 (2007), enfd. mem. 273 Fed. Appx. 32 (2d Cir.
2008).