SFO Good-Nite Inn, LLC, 20-CA-32754

National Labor Relations Board - Board Decisions

Mar 20, 2008

352 N.L.R.B. 268 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 42
268
SFO Good-Nite Inn, LLC and Unite Here! Local 2.
Case 20–CA–32754
March 20, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On September 28, 2006, Administrative Law Judge
Jay R. Pollack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a brief in support of the judge’s
decision, limited cross-exceptions and a supporting brief,
and an answering brief to the Respondent’s exceptions.
The Respondent filed an answering brief to the General
Counsel’s limited cross-exceptions and a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified below and to adopt
his recommended Order as modified and set forth in full
below.2
We agree with the judge, for the reasons stated in his
decision, that the Respondent violated Section 8(a)(1) by
soliciting employees Christina Valencia and Maria
Maldonado to sign a union disaffection petition and by
accompanying that solicitation with a promise of bene-
fits.3 For the reasons set forth below, we also affirm the

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
3 There are no exceptions to the judge’s findings that the Respondent
additionally violated Sec. 8(a)(1) by threatening employee Margarita
Taloma with a reduction in hours if employees remained unionized and
promising her benefits if she would sign a disaffection petition, by
threatening to withhold approval of employee Luz Verdin’s vacation
request and promising to approve the request if Verdin signed the peti-
tion, and by threatening employee Consuelo Contreras with discharge
for telling employees not to sign the petition.
The judge inadvertently omitted conclusions of law related to his
findings that the Respondent unlawfully solicited Valencia and
Maldonado to sign a disaffection petition and unlawfully threatened
Contreras with discharge. We will amend the judge’s conclusions of
law and modify the order accordingly. We will also substitute a new
notice in conformity with the Order as modified and in accordance with
judge’s findings that the Respondent discriminatorily
selected Maldonado and Valencia for discharge in viola-
tion of Section 8(a)(3) and unlawfully withdrew recogni-
tion of the Union in violation of Section 8(a)(5).4
I. BACKGROUND
The Respondent owns and operates a hotel located
near the San Francisco International Airport. The Union
was party to a collective-bargaining agreement with the
Respondent’s predecessor, Wyndham International, ef-
fective December 5, 1999, through November 30, 2003,
and extended by agreement through November 2004.
The Respondent purchased the hotel in March 2004, and
assumed the collective-bargaining agreement, which in-
cluded a union-security clause. In August 2004, the Un-
ion gave notice of its intent to modify the agreement; the
parties agreed that it would remain in effect during bar-
gaining. The parties met and bargained on three dates in
2005 without concluding a successor agreement.5 On
August 23, the Union demanded that several housekeep-
ers, including Valencia and Maldonado, be discharged
unless they met their union-security obligations.
On August 31, Valencia and Maldonado were called to
a meeting with General Manager Chaudhry. Banquet
Manager Naomi Grace Vargas also attended and served
as an interpreter. Chaudhry informed the employees that
they owed the Union $400 in dues and that the Union
would have them fired if they did not pay the amount
due. He also said that the Union was no good and that it
was costing the Respondent a lot of money. Chaudhry

Ishikawa Gasket America, 337 NLRB 175 (2001), enfd. 354 F.3d 534
(6th Cir. 2004).
The General Counsel excepts to the judge’s failure to find that the
Respondent interrogated employees Valencia and Maldonado in viola-
tion of Sec. 8(a)(1) when General Manager A.C. Chaudhry said to them
that he did not know why they wanted the Union and that Respondent
would give the employees paid vacation and Kaiser health benefits.
Although a statement does not necessarily have to be in the form of a
question to constitute an unlawful interrogation, see Children’s Ser-
vices International, 347 NLRB 67, 79–80 (2006), such a statement
cannot be an interrogation if it does not call for an answer, Valley
Community Services, 314 NLRB 903, 911 (1994). Viewed in context,
Chaudhry’s statement that he did not know why the employees wanted
the Union did not call for an answer but rather served as a lead-in to the
unlawful promise of benefits that immediately followed. Thus, we are
unpersuaded by the General Counsel’s exception.
4 The Respondent excepted generally to the judge’s recommended
Order “in its entirety,” but it did not except specifically to the judge’s
grant of an affirmative bargaining order to remedy the Respondent’s
unlawful withdrawal of recognition. We therefore find it unnecessary
to address whether a specific justification for that remedy is warranted.
SKC Electric, Inc., 350 NLRB 857, 862 fn. 15 (2007); Heritage Con-
tainer, Inc., 334 NLRB 455, 455 fn. 4 (2001); see also Highlands Hos-
pital Corp. v. NLRB, 508 F.3d 28, 32–33 (D.C. Cir. 2007) (holding
exception to a remedial order “in its entirety” too broad to preserve
court challenge to an affirmative bargaining order).
5 All dates hereafter are in 2005, unless stated otherwise.
SFO GOOD-NITE INN, LLC 269
then told the employees that they could sign a petition to
“deunionize” the hotel. Chaudhry told them to have
lunch and that they could come back later and sign “the
paper.” The employees did not return after lunch and did
not sign the petition. Later that afternoon, Vargas ap-
proached Valencia and asked if she was going to sign
“the paper” and why the employees did not want to “de-
unionize.”6
In late August, Assistant Manager Leah Aquino asked
housekeeper Taloma to sign an antiunion petition.
Aquino said that Taloma’s situation might not be as good
if the hotel remained unionized, that the Union might let
Taloma work only part time, and that she (Aquino) could
help only if Taloma signed the petition. Subsequently,
Aquino visited Taloma at her home and again asked her
to sign the petition. Taloma did not sign.
On September 6, room inspectress and union negotiat-
ing committee member Consuelo Contreras urged house-
keeper Xian Tan not to sign the antiunion petition. Later
that day, Chaudhry and Eric Yokeno, one of the Respon-
dent’s owners, asked Contreras why she was telling em-
ployees not to sign the petition and told her that she
could be fired for doing so on worktime. Chaudhry ad-
mitted that Contreras’ discussions with other employees
did not violate any valid no-solicitation rule.
The Respondent’s occupancy rate typically decreases
each year after mid-August, and it did so again after mid-
August 2005. The judge found, and no one disputes, that
because of the seasonal slowdown, the Respondent had a
legitimate business reason to lay off housekeepers in
September 2005. In prior years, Chaudhry laid off em-
ployees in the slow season and recalled them when busi-
ness picked up.
Chaudhry and Aquino testified that on September 6,
Chaudhry told Contreras that he had to let two house-
keepers go and that Contreras named Maldonado and
Valencia when asked which two she would recommend
for termination based on performance. Contreras, whose
testimony the judge credited, denied this and further tes-
tified that Maldonado and Valencia performed their work
well. On September 7, Chaudhry discharged Valencia
and Maldonado.
On September 14, the Respondent notified the Union
that it was withdrawing recognition based on employee
petitions stating that a majority of employees no longer
wished to be represented by the Union.
On October 4, employee Verdin asked Aquino about a
vacation request that Verdin had submitted in August.
Aquino replied by asking Verdin to sign the petition to
remove the Union. After adding that most of the em-

6 Vargas’ question was not alleged to violate the Act.
ployees had already signed the petition, Aquino told
Verdin that if Verdin would sign the antiunion petition,
Aquino would sign Verdin’s vacation request. Verdin
subsequently signed the petition and Aquino signed the
vacation request, backdating it to September 14.
II. DISCHARGE OF VALENCIA AND MALDONADO
As stated above, the judge found that the Respondent
had a legitimate reason to reduce staff in September as
the hotel’s busy season came to an end. To reduce labor
costs during the annual seasonal slowdown, the Respon-
dent in past years had instituted layoffs. Later, when
business picked up again, the laid-off workers would be
recalled. In 2005, the Respondent departed from this
practice by discharging the two housekeepers instead of
laying them off. Finding that the Respondent selected
Valencia and Maldonado for discharge because they did
not sign the antiunion petition, the judge concluded that
the discharges violated Section 8(a)(3). We agree.
Under Wright Line,7 the General Counsel must first
show, by a preponderance of the evidence, that protected
conduct was a motivating factor in the employer’s ad-
verse action. Once the General Counsel makes that
showing by demonstrating protected activity, employer
knowledge of that activity, and animus against protected
activity, the burden of persuasion shifts to the employer
to show that it would have taken the same adverse action
even in the absence of the protected activity. United
Rentals, 350 NLRB 951 (2007) (citing Donaldson Bros.
Ready Mix, Inc., 341 NLRB 958, 961 (2004)). If, how-
ever, the evidence establishes that the reasons given for
the employer’s action are pretextual—that is, either false
or not in fact relied upon—the employer fails by defini-
tion to show that it would have taken the same action for
those reasons, and thus there is no need to perform the
second part of the Wright Line analysis. Id. at 951–952
(citing Golden State Foods Corp., 340 NLRB 382, 385
(2003); Limestone Apparel Corp., 255 NLRB 722
(1981), enfd. 705 F.2d 799 (6th Cir. 1982)).
The General Counsel met his initial burden under
Wright Line. Maldonado and Valencia engaged in pro-
tected activity by refusing to sign the antiunion petition.
The Respondent’s knowledge of that activity is estab-
lished by the failure of the two to return after lunch and
sign the petition as Chaudhry had requested, and by Var-
gas’ asking Valencia that same afternoon if she was go-
ing to sign “the paper” and why she and Maldonado did
not want to “deunionize.” Thus, like the judge, we infer
that the Respondent was well aware of the employees’

7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD270
refusal to sign the petition. The Respondent’s substantial
animus against such protected activity is demonstrated
by the unlawful threats and/or promises it directed at
employees Valencia, Maldonado, Taloma, Contreras, and
Verdin based on their responses to its unlawful solicita-
tions of support for the petition. The timing of the dis-
charges only 1 week after the two employees’ protected
refusal to sign the petition further supports the finding
that the discharges were unlawfully motivated. See, e.g.,
Progressive Electric, Inc. v. NLRB, 453 F.3d 538, 549
(D.C. Cir. 2006) (antiunion motivation established by
knowledge, antiunion hostility, and timing of employer’s
actions); Real Foods Co., 350 NLRB 309, 312–313
(2007).
The Respondent contends that it discharged Valencia
and Maldonado because they were the probationary em-
ployees whom Contreras selected as being the least
qualified. The credited testimony of Contreras, however,
establishes that she never recommended Valencia and
Maldonado for discharge and never told Chaudhry that
they had performance problems. Because the Respon-
dent’s only proffered reason for the discharges was found
to be pretextual, the Respondent necessarily failed to
show that it would have discharged the employees even
in the absence of their protected conduct; and the Wright
Line analysis ends there. United Rentals, supra at 951–
952.
III. THE WITHDRAWAL OF RECOGNITION
The judge concluded that the Respondent violated Sec-
tion 8(a)(5) by withdrawing recognition of the Union on
September 14. For the following reasons, we agree with
the judge’s conclusion.
As detailed above, the Respondent engaged in conduct
that directly tainted the disaffection petition upon which
it relies to demonstrate the Union’s loss of majority
status. The Respondent solicited employees to sign the
petition and directed threats and promises towards em-
ployees to coerce them to support the petition, all in vio-
lation of Section 8(a)(1). The Respondent’s conduct
went far beyond the “ministerial aid” of a petition per-
mitted by the Act. See, e.g., Mickey’s Linen & Towel
Supply, 349 NLRB 790, 791 (2007). The General Coun-
sel contends that, because of this misconduct, the petition
could not provide a valid basis for the Respondent’s
withdrawal of recognition. We find merit in the General
Counsel’s contention.
When an employer withdraws recognition from an in-
cumbent majority representative, it violates Section
8(a)(5) unless it meets its burden to show that the union
has actually lost its majority status. Levitz Furniture Co.
of the Pacific, 333 NLRB 717 (2001). Decertification
petitions of the type signed by the employees here will
generally be sufficient to meet that burden, absent coun-
tervailing evidence. Hearst Corp., 281 NLRB 764
(1986), affd. mem. 837 F.2d 1088 (5th Cir. 1988); see
also Levitz, supra at 725 fn. 49.
Where an employer has engaged in conduct designed
to undermine employee support for the union, however,
the decertification petitions will be found to have been
tainted by the unfair labor practices and the employer
will be precluded from relying on those petitions as a
basis for withdrawing recognition. Hearst Corp., supra;
see also Texaco Inc., 264 NLRB 1132, 1132–1133
(1982), enfd. 722 F.2d 1226 (5th Cir. 1984) (antiunion
petition invalid where the employer unlawfully assisted
in its circulation and encouraged employees to sign);
Tyson Foods, 311 NLRB 552, 556 (1993) (“Where an
employer aids or supports employees in withdrawing
from a union or otherwise manifesting their disaffection
with an incumbent representative, the Board has held that
the evidence of withdrawal or disaffection thus procured
by the employer cannot serve as the requisite objective
basis upon which a lawful withdrawal of recognition
must be predicated.”); American Linen Supply Co., 297
NLRB 137, 137–138 (1989), enfd. 945 F.2d 1428 (1991)
(same).
Here, as in the cases cited above, the Respondent
unlawfully assisted an antiunion petition. General Man-
ager Chaudhry solicited employees Valencia and
Maldonado to sign the petition; Assistant Manager
Aquino encouraged employee Taloma to sign, accompa-
nied by threats and promises; and Chaudhry and co-
owner Yokeno threatened employee Contreras with dis-
charge for opposing the petition. The Respondent is pre-
cluded from relying on the petition, tainted by these un-
fair labor practices, as a basis for withdrawing recogni-
tion from the Union. Hearst Corp., supra; Texaco Inc.,
supra; Tyson Foods, supra; American Linen Supply Co.,
supra.
The Respondent contends that the petition was not
tainted by its unfair labor practices because there is no
evidence that the employees who signed it knew of the
unlawful conduct.8 But the Board specifically rejected
this contention in Hearst Corp., supra. There, 17 of 33
petition signers affirmatively testified that they were un-
aware of the employer’s unlawful conduct. This evi-
dence was insufficient to meet the employer’s “burden of
showing that the petition was untainted,” however, be-
cause the unfair labor practices were “aimed specifically

8 None of the employees found to have been unlawfully coerced to
sign the petition did so, with the exception of Verdin, who signed the
petition after the withdrawal of recognition. The record does not show
whether or not the remaining petition signers knew of the unfair labor
practices.
SFO GOOD-NITE INN, LLC 271
at causing employee disaffection with their union” and
included suggesting to employees that they sign the peti-
tions and urging employees to persuade their coworkers
to withdraw their support for the union. 281 NLRB at
764–765. Unfair labor practices of this character, which
are also present here, will taint a decertification petition
“notwithstanding that some employees may profess igno-
rance of their employer’s misconduct.” Id. at 765.9 A
fortiori, the absence in this case of affirmative evidence
that the petition signers were aware of the unfair labor
practices is insufficient to meet Respondent’s burden of
showing that the petition was untainted.10
For these reasons, we affirm the judge’s conclusion
that the withdrawal of recognition violated Section
8(a)(5).11
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By soliciting employees to sign a union disaffection
petition, the Respondent violated Section 8(a)(1) of the
Act.
4. By threatening employees with discharge or loss of
benefits, and by promising benefits, in order to coerce
employees to sign a union disaffection petition, the Re-
spondent violated Section 8(a)(1) of the Act.

9 As the Board explained in Hearst, supra at 765 (fn. omitted):
[A]n employer who engages in efforts to have its employees repudiate
their union must be held responsible for the foreseeable consequences
of its conduct. Here, the Respondent, by engaging in conduct pur-
posefully designed to cause employee disaffection with Local #25,
began a chain of events that culminated in the foreseeable repudiation
of that union. In these circumstances, we are unwilling to allow the
Respondent to enjoy the fruits of its violations by asserting that certain
of its employees did not know of its unlawful behavior, but rather
shall hold it responsible for the predictable consequences of its mis-
conduct. . . .
10 Member Schaumber acknowledges that Hearst Corp. is extant
Board law and applies it for the purpose of deciding this case. In his
view, even unfair labor practices such as those in this case might not
taint a petition if there was affirmative evidence that a majority of unit
employees both signed the petition and were unaffected by the unlawful
conduct. As noted above, however, there was no such showing in this
case.
11 We therefore find it unnecessary to pass on the judge’s finding
that the petition was tainted under the standards set forth in Master
Slack Corp., 271 NLRB 78, 84 (1984), or his finding that the collec-
tive-bargaining agreement was a bar to the Respondent’s withdrawal of
recognition. See generally Shaw’s Supermarkets, Inc., 350 NLRB 585
(2007).
Member Liebman, who dissented in Shaw’s Supermarkets, agrees
that it is unnecessary to address the issues presented there for the pur-
pose of deciding this case.
5. By discharging employees Maria Maldonado and
Christina Valencia in order to discourage union activities
and union membership, the Respondent violated Section
8(a)(3) and (1) of the Act.
6. By withdrawing recognition from and refusing to
bargain with the Union, the Respondent violated Section
8(a)(5) and (1) of the Act.
7. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, SFO Good-Nite Inn, LLC, South San Fran-
cisco, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Soliciting employees to sign a union disaffection
petition.
(b) Threatening employees with discharge or loss of
benefits, and promising benefits, in order to coerce em-
ployees to sign a union disaffection petition.
(c) Discharging employees in order to discourage un-
ion activities and union membership.
(d) Withdrawing recognition from the Union as the ex-
clusive collective-bargaining representative of Respon-
dent’s employees in the unit described below.
(e) Refusing to meet and bargain with the Union as the
exclusive collective-bargaining representative of Re-
spondent’s employees in the unit described below with
respect to rates of pay, hours of employment, and other
terms and conditions of employment including union
security, wages, and contributions to health insurance.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment:
All employees covered by the collective-bargaining
agreement between Respondent and the Union that was
effective by its terms through November 30, 2003, and
extended by agreement through November 2004.
(b) Within 14 days from the date of this Order, offer
Maria Maldonado and Christina Valencia full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD272
their seniority or any other rights or privileges previously
enjoyed.
(c) Make Maria Maldonado and Christina Valencia
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the man-
ner set forth in the remedy section of the judge’s deci-
sion.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Maria Maldonado and Christina Valencia, and within 3
days thereafter notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
(e) 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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in South San Francisco, California, copies of
the attached notice marked “Appendix.”12 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 2005.
(g) 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.

12 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 solicit you to sign an antiunion petition.
WE WILL NOT threaten you with discharge or loss of
benefits, or promise you benefits, in order to coerce you
to sign an antiunion petition.
WE WILL NOT discharge any of you in order to discour-
age union activities and union membership.
WE WILL NOT withdraw recognition from Unite Here!
Local 2 as the exclusive collective-bargaining representa-
tive of our employees in the unit described below.
WE WILL NOT refuse to meet and bargain with the Un-
ion as the exclusive collective-bargaining representative
of our employees in the unit described below with re-
spect to rates of pay, hours of employment, and other
terms and conditions of employment including union
security, wages, and contributions to health insurance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, upon 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 such understanding in a
signed agreement:
All employees covered by the collective-bargaining
agreement between us and the Union that was effective
by its terms through November 30, 2003, and extended
by agreement through November 2004.
WE WILL, within 14 days from the date of the Board’s
Order, offer Maria Maldonado and Christina Valencia
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
SFO GOOD-NITE INN, LLC 273
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Maria Maldonado and Christina Valen-
cia whole for any loss of earnings and other benefits re-
sulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Maria Maldonado and Christina Valen-
cia, and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the dis-
charges will not be used against them in any way.
SFO GOOD-NITE INN, LLC
John Ontiveros, Esq. and Micah Berul, Esq., for the General
Counsel.
Patrick Jordan, Esq. (Jordan Law Group), of San Rafael, Cali-
fornia, for the Respondent.
Matthew Ross, Esq. and Danielle Lucido, Esq. (Leonard,
Carder), of Oakland, California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at San Francisco, California, on April 18 through
20, May 23, and on June 13, 2006, in San Mateo, California.
On October 14, 2005, Unite Here! Local 2 (the Union) filed the
original charge alleging that SFO Good-Nite Inn, LLC (Re-
spondent) committed certain violations of Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). The Union
filed the first amended charge on November 22 and a second
amended charge on December 15, 2005. On March 1, 2006,
the Regional Director for Region 20 of the National Labor Re-
lations Board (the Board) issued a complaint and notice of
hearing against Respondent, alleging that Respondent violated
Section 8(a)(1) and (5) of the Act. Respondent filed a timely
answer to the complaint denying all wrongdoing. The General
Counsel amended the complaint at hearing on April 18 and 19,
and June 13, 2006.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing1

1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent admits facts establishing that it meets the
Board’s jurisdictional standards and that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent also admits that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent, a California corporation, is the owner and
operator of a hotel located near the San Francisco International
Airport in South San Francisco. The Union was the exclusive
collective-bargaining representative of the housekeeping and
maintenance employees of the hotel when Respondent pur-
chased the hotel from Wyndham International in March 2004.
Wyndham and the Union were party to a collective-bargaining
agreement effective by its terms from December 5, 1999
through November 30, 2003. The Union and Wyndham agreed
to a 1-year extension of the collective-bargaining agreement
through November 2004. When it purchased the hotel in
March 2004, Respondent assumed the collective-bargaining
agreement then in effect between the Union and Wyndham
International. The bargaining agreement contained the follow-
ing provision at issue herein:
Section. TERM OF AGREEMENT
This Agreement shall be in effect for the period commencing
December 5, 1999 and continuing to and including November
30, 2003. At least (90) days prior to November 30, 2003 ei-
ther party may serve notice upon the other by Certified Mail,
of a desire to terminate, change or modify this Agreement, or
any part thereof. In the event no such notice is given, this
Agreement shall be renewed from year to year after the expi-
ration date hereof, subject to written notice of termination or
modification ninety (90) days prior to any subsequent anni-
versary date of this Agreement. For the purpose hereof, De-
cember first (1st) of each year, commencing December 5,
1999 shall be deemed the anniversary of this Agreement. If,
prior to the expiration date, following the submission of such
notice, unless time is mutually extended, the parties fail to
reach an Agreement, then either party shall be free to strike or
lock out.
Upon receipt of such notice, it is agreed by both parties
that negotiations will commence within fifteen (15) days.
In the event a new wage settlement is not agreed upon by
November 30, 2003 this Agreement shall continue beyond
the expiration date thereof for such period of time as par-
ties are engaged in negotiating such successor Agreement.
The complaint alleges that Respondent unlawfully threatened
employees with a reduction in hours, threatened to withhold
approval of a vacation request, promised benefits, interrogated
employees, solicited employees to sign an antiunion petition,
and threatened employees with termination for opposing an
antiunion petition. The complaint further alleges that Respon-
dent terminated the employment of two housekeeping employ-
ees because they refused to sign an antiunion petition. Finally,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD274
the complaint alleges that Respondent unlawfully withdrew
recognition from the Union during the term of the contract.
The General Counsel also alleges that withdrawal of recogni-
tion was “unlawful because it relied on a tainted employee
petition as the putative evidence of loss of majority support.”
Respondent denies the commission of any unfair labor prac-
tices. In addition, Respondent contends that the two employees
were discharged based on a slowdown in business. Respondent
contends that it lawfully withdrew recognition from the Union
based on a petition from a majority of the bargaining unit em-
ployees stating that they no longer wished to be represented by
the Union. Finally, Respondent contends that the agreement
lawfully expired upon Respondent’s withdrawal of recognition.
On August 3, 2004, the Union sent notice of its intent to
change, alter and modify the agreement. Harry Young, union
field representative, and Patrick Jordan, Respondent’s attorney
agreed that the agreement would remain in effect during bar-
gaining. The parties first met for negotiations on March 11,
2005. Additional negotiation meetings were held on August 23
and September 7, 2005. At the March 11 bargaining session,
the Union presented a contract proposal. The parties discussed
the fact that Respondent was experiencing financial difficulties
and was in arrears to the health and welfare trust fund.
At the August 23 meeting, the parties discussed the fact that
Respondent was in arrears in making its trust fund contribu-
tions. The Union presented Respondent with a written demand
that five new housekeepers be discharged unless they met their
union-security obligations by Friday, August 26.2 The Union
also presented Respondent with an application for membership
in the Union which employees could sign. Jordan asked if
Young had cleared this request with the Union’s attorneys and
Young answered that he had done so. Jordan then directed that
copies of the Union’s request be made.
On the next day, August 24, Jordan wrote Young agreeing to
inform the employees of their union-security obligations and
requesting additional time for the employees to meet their dues
obligations. On August 31, 2005, Afzal “A.C.” Chaudhry
(A.C.), Respondent’s general manager, and Naomi Grace Var-
gas, banquet manager, met with employees to read a memo
describing the union dues obligations. Vargas, fluent in Eng-
lish and Spanish, was present because she acted as an inter-
preter. The employees were told that Respondent had a labor
contract with the Union which required that employees who
have worked over 31 days had to pay fees and dues to the Un-
ion. A.C. explained that the employees could join the Union
and become union members or could pay dues and fees without
joining the Union.
Christina Valencia testified that she and Maria Maldonaldo,
also a housekeeper, were called into a meeting with A.C. and
Vargas.3 Vargas acted as interpreter for A.C. According to
Valencia, A.C. said that the employees owed the Union $400
and that amount had to be paid by September 26. If the em-
ployees did not pay the amount due, the Union would have

2 The five employees were Yolanda Gies, Maria Maldonada, Chris-
tina Velencia, Daisy Arana, and Mei-Yun Wu.
3 While Valencia testified that this meeting took place on September
5, I find that meeting took place on August 31.
them fired. According to Valencia, A.C. said that the Union
was no good and was costing Respondent a lot of money.
Next, A.C. said he did not know why the employees wanted the
Union and that Respondent would give the employees paid
vacation and Kaiser (health benefits).4 A.C. said that he did not
want to pressure the employees but they could sign a petition to
“deunionize” the hotel. A.C. told the employees to have lunch
and that they could come back later and sign “the paper.” Va-
lencia and Maldonado did not return after lunch and did not
sign an antiunion petition. Valencia further testified that later
that afternoon, Vargas asked whether she was going to sign the
“the paper.” Vargas asked why the employees didn’t want to
“deunionize.”
Maldonado did not testify. The General Counsel contends
that he made every effort to find Maldonado but was unable to
do so. The General Counsel offered a pretrial affidavit from
Maldonado in lieu of testimony. While I received the affidavit
in evidence, I do not rely on it. In my view, without further
direct and cross-examination of Maldonado, the affidavit is not
reliable. A.C. and Vargas deny that they did anything more
than read to the employees their union dues obligations. I
credit Valencia’s testimony over the denials of A.C. and Var-
gas.5
Margarita Taloma, housekeeper, testified that in late August,
Leah Aquino, assistant manager, asked her to sign an antiunion
petition. Aquino stated that Taloma’s situation might not be as
good if the hotel remained unionized. Aquino stated that the
Union might only let Taloma work part time. Aquino said she
could only help Taloma if Taloma signed the petition. In early
September, Aquino asked Taloma to sign a petition. Shortly
thereafter, Parwander Kaur, a front-desk employee,6 asked
Taloma to sign a petition stating that the employees no longer
wished to be represented by the Union. Taloma did not sign.
After work, Aquino went to Taloma’s home and asked her to
sign the petition. Taloma did not sign.7
On or about September 6, Consuelo Contreras, who in-
spected the work of the housekeepers and was on the Union’s
negotiating committee, spoke with housekeeper Xian Tan about
the Union. Contreras urged Tan not to sign the antiunion peti-
tion and spoke in favor of union representation. Later that day,
A.C. and Eric Yokeno (one of Respondent’s owners), asked
Contreras why she was telling employees not to sign the peti-
tion and that she could be fired for doing so on worktime.8

4 At that point in time, the employees were not receiving health
benefits because Respondent was in arrears in making trust fund contri-
butions. After Respondent withdrew recognition from the Union, it
provided the employees with health benefits.
5 I found that A.C.’s testimony regarding the layoffs/discharges of
Maldanado and Valencia was shifting and evasive. I, therefore, found
A.C. to be an unreliable witness.
6 The front-desk employees are not in the bargaining unit. These
employees were formerly represented by another labor organization but
are currently not represented by any labor union.
7 I found Aquino to be an unreliable witness. Her testimony was
contradicted by credible witnesses. Further, her credibility was dam-
aged by her participation in backdating two documents.
8 A.C. admitted that Respondent had no rule against discussing such
matters at work and that Contreras had not violated any valid no-
solicitation rule.
SFO GOOD-NITE INN, LLC 275
A.C. and Yokeno questioned Contreras as to whether she was
unfairly scheduling the housekeepers. There was an allegation
that Contreras was favoring Hispanic employees over Asian
employees. Contreras denied such favoritism and stated that if
A.C. was unhappy with her scheduling he could do it himself.
Thereafter, Contreras ceased doing the scheduling of house-
keepers and A.C. did the scheduling himself.
On September 7, A.C. met again with Valencia and
Maldonado. With Contreras acting as interpreter A.C. termi-
nated Valencia and Maldonado. Valencia asked why two em-
ployees, Gies and WU, who were hired after her were being
retained. A.C. answered that there was no seniority.9
The final negotiation meeting between the Union and Re-
spondent took place on September 7. The parties exchanged
bargaining proposals. Although Jordan indicated that he did
not believe further negotiations would be fruitful, based on
Respondent’s financial difficulties, he agreed to another bar-
gaining session. No further bargaining occurred. On Septem-
ber 14, Jordan wrote Young stating that Respondent was with-
drawing recognition based on employee petitions stating that a
majority of the employees no longer wished to be represented
by the Union.10
On October 4, employee Luz Verdin went to Aquino’s office
to inquire about her vacation request. Verdin had submitted a
vacation request to Contreras in August and that request had
been forwarded to Aquino. However, Verdin had not received
approval for her vacation. Verdin asked that Aquino approve
her vacation request and Aquino asked that Verdin sign the
petition to remove the Union. Aquino told Verdin that most of
the employees had already signed the petition. Aquino said
they would make a deal; Verdin would sign the petition and
Aquino would sign Verdin’s request. Verdin then signed a
petition stating that the employees no longer wished to be rep-
resented by the Union.11 Aquino approved the vacation request
but dated it September 14.
III. RESPONDENT’S DEFENSES
Respondent produced business records which show that as
summer vacations end and as school resumes in mid-August,
the business of the hotel slows down. The occupancy rate falls
after mid-August. In 2005, just as in the prior year, Respondent
had reason to layoff housekeeping employees. I find that Re-
spondent had a legitimate business reason to layoff housekeep-
ers in September 2005. The issue is whether employees
Maldonado and Valencia were chosen for layoff for unlawful
reasons.
A.C. testified that he called Contreras, the inspectress,12 into
a meeting with Aquino present, to determine which housekeep-
ers to terminate. According to A.C. and Aquino, A.C. told

9 The contract does require that layoffs be based on seniority. How-
ever, Respondent contends that the employees at issue herein were all
probationary employees and therefore, seniority does not apply.
10 The Union filed the instant charge on October 14.
11 Although signed on October 4, the petition signed by Verdin bears
the date of September 14.
12 Contreras inspected the hotel rooms after the housekeepers
cleaned the rooms. She would be the employee most familiar with the
quality of work of the housekeepers.
Contreras that the hotel was heading into the slow season and
that he had to let two housekeepers go. A.C. then asked
Contreras which two housekeepers she would recommend for
termination based on performance. Contreras then named
Maldonado and Valencia, both probationary employees.
Maldonado and Valencia were terminated the next day.
Contreras denied that A.C. never asked her opinion as to who
should be laid off. Further, Contreras testified that Valencia
and Maldonado performed well.
A.C. admitted that in the past he had laid off employees in
the slow season rather than terminate employees. Further, em-
ployees were recalled when business picked up. He attempted
to explain the difference here by stating that the employees
involved were all probationary employees. However, the con-
tract provision regarding layoffs states:
In the event of layoffs due to a reduction in force, probation-
ary employees within the affected classification(s) within de-
partments will be the first to be laid off. Employees will be
laid off from and recalled to their regular job classifications
within departments in accordance with their seniority provid-
ing they have the qualifications to perform satisfactorily the
work available in their regular job classification.
According to A.C., from September 16 to 24, Respondent
had an unexpected increase in the occupancy rate due to a busi-
ness meeting in San Francisco. A shortage of available rooms
in San Francisco resulted in an unexpected demand for rooms
at Respondent’s hotel. Rather than recall Maldonado and Va-
lencia for this time period, Respondent paid overtime to its
housekeepers. Although recalling Maldonado and Valencia
would have been consistent with past practice, A.C. testified
that he could not recall these two employees because they had
been terminated for poor performance.
Respondent contends that the employees began discussing
the Union and whether to remain Union without assistance
from Respondent. Parwinder Kaur, a nonunit front-desk em-
ployee testified that she helped housekeeper Sadot Jiminez
write a petition stating that the employees no longer wished to
be represented by the Union. Sadot was the only employee
who signed that petition.13 Kaur also testified that employee
Ermelina Mariazeta had also expressed a desire to be non-
union. Mariazeta worked part time at the front desk and part
time as a housekeeper. Mariazeta started a decertification peti-
tion on September 3, 2005. Mariazeta testified that she left the
petition for other employees to sign. Eleven employees signed
the petition after Mariazeta. Another petition was signed by
employee Juan Reyes. Finally, the petition signed by Verdin
on October 4 was dated September 14. The parties stipulated
that the 12 employees that signed petitions prior to September
14 would represent a majority of the bargaining unit employ-
ees. There is no evidence that Kaur, Sadot, or Mariazeta were
acting on behalf of Respondent in assisting with the nonunion
petitions.

13 Sadot signed two petitions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD276
IV. CONCLUSIONS
A. The Independent 8(a)(1) Allegations
As mentioned above, housekeeper Margarita Taloma testi-
fied that in late August, Leah Aquino, assistant manager, asked
her to sign an antiunion petition. Aquino stated that Taloma’s
situation might not be as good if the hotel remained unionized.
Aquino stated that the Union might only let Taloma work part
time. Aquino said she could only help Taloma if Taloma
signed the petition. In early September, Aquino went to Ta-
loma’s home and asked her to sign the petition. Taloma did not
sign.
I find that Aquino threatened that Taloma’s hours would be
reduced if the hotel remained unionized. See El Rancho Mar-
ket, 235 NLRB 468 (1978). At the same time Aquino accentu-
ated the positive of signing the petition and becoming non-
union by stating that she could help Taloma if Taloma signed
the antiunion petition. I find by this conduct Respondent unlaw-
fully solicited Taloma to sign the antiunion petition. See Fab-
ric Warehouse, 294 NLRB 189 (1989); Architectual Woodwork
Corp., 280 NLRB 930 (1986).
On or about September 6, after Contreras urged Tan not to
sign the antiunion petition and spoke in favor of union repre-
sentation, A.C. and Yokeno asked Contreras why she was tell-
ing employees not to sign the petition and that she could be
fired for doing so on work time. A.C. admitted that there was
no rule at the hotel prohibiting Contreras from engaging in such
conduct. Accordingly, I find that Respondent violated Section
8(a)(1) of the Act.
As shown above, on October 4, Aquino conditioned approval
of Verdin’s vacation request upon Verdin signing the non-
union petition. Aquino said they would make a deal, Verdin
would sign the petition and Aquino would sign Verdin’s re-
quest. Verdin then signed a petition stating that the employees
no longer wished to be represented by the Union. I find by this
conduct Respondent unlawfully threatened to withhold Ver-
din’s vacation and unlawfully solicited Verdin to sign the anti-
union petition. See Fabric Warehouse, 294 NLRB 189 (1989);
Architectual Woodwork Corp., 280 NLRB 930 (1986).
After the Union demanded that the new housekeepers meet
their union-security obligations, A.C. and Vargas met with
Maldonado and Valencia on or about August 31. A.C. lawfully
told the employees that the Union demanded that they meet
their union-security obligations by September 26. However,
A.C. went on to tell the employees that the Union was no good
and that the Union was costing the hotel money. The employ-
ees were promised health care benefits and A.C. suggested that
the employees sign a petition to deunionize. Again, I find that
by promising benefits, Respondent unlawfully solicited em-
ployees to sign the antiunion petition.
B. The Terminations of Valencia and Maldonado
In cases involving dual motivation, the Board employs the
test set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). Initially, the General
Counsel must establish by a preponderance of the credible evi-
dence that antiunion sentiment was a “motivating factor” for
the discipline or discharge. This means that the General Coun-
sel must prove that the employee was engaged in protected
activity, that the employer knew the employee was engaged in
protected activity, and that the protected activity was a motivat-
ing reason for the employer’s action. Wright Line, supra, 251
NLRB at 1090. Unlawful motivation may be found based upon
direct evidence of employer animus toward the protected activ-
ity. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184
(2004). Alternatively, proof of discriminatory motivation may
be based on circumstantial evidence, as described in Robert
Orr/Sysco Food Services, supra.
To support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the proffered
reasons for the discipline and other actions of the employer,
disparate treatment of certain employees compared to other
employees with similar work records or offenses, deviations
from past practice, and proximity in time of the discipline to the
union activity. Embassy Vacation Resorts, 340 NLRB 846, 848
(2003).
When the General Counsel has satisfied the initial burden,
the burden of persuasion shifts to Respondent to show by a
preponderance of the credible evidence that it would have taken
the same action even in the absence of the employee’s pro-
tected activity. If Respondent advances reasons which are
found to be false, an inference that the true motive is an unlaw-
ful one may be warranted. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). However, Respondent’s defense does not fail simply
because not all the evidence supports its defense or because
some evidence tends to refute it. Merrilat Industries, 307
NLRB 1301, 1303 (1992). Ultimately, the General Counsel
retains the burden of proving discrimination. Wright Line,
supra, 251 NLRB at 1088 fn. 11.
As the hotel’s busy season came to an end, A.C. decided to
let two employees go. He never adequately explained why he
decided to discharge rather than layoff the two employees. In
the prior year, he had laid off housekeepers and recalled house-
keepers as needed. As stated earlier, I find the drop in the oc-
cupancy rate was a legitimate justification to lay off two em-
ployees. The issue is whether Maldonado and Valencia were
selected for termination because of union activity. The General
Counsel contends that they were selected for termination be-
cause they did not sign the petition to “deunionize.” Respon-
dent contends that they were selected for termination because
they were probationary employees whom Contreras had desig-
nated as least qualified.
At the time of the terminations at issue, Respondent had five
probationary housekeepers, Gies, Arana, Wu, Maldonado, and
Valencia. Maldonado and Valencia were senior to Gies and
Wu. Gies and Wu signed Mariazeta’s petition stating they no
longer wished to be represented by the Union. Most important,
Contreras denied that she selected Maldonado and Valencia for
termination. Contreras also denied telling A.C. that Maldonado
and Valencia had performance problems. As stated above, I
find Contreras to be a more credible witness than both A.C. and
Aquino.
SFO GOOD-NITE INN, LLC 277
The General Counsel has shown that Maldonado and Valen-
cia engaged in protected activity by not signing the petitions as
requested by their employer. Maldanado and Valencia never
returned to A.C. to sign a petition. Vargas knew that they had
not signed. Prior to their discharges, 12 employees had signed
Mariazeta’s petition but Maldanado and Valencia had not
signed the petition. While there is no direct evidence that the
Respondent had knowledge of Maldonado’s and Valencia’s
failure to sign the petition, I conclude that the General Coun-
sel’s prima facie case, supported by circumstantial evidence, is
sufficient to establish a reasonable inference of such knowl-
edge. See Abbey’s Transportation Services, 284 NLRB 698,
700–701 (1987), enfd. 837 F.2d 575 (2d Cir. 1988); BMD
Sportswear Corp., 283 NLRB 142, 143 (1987), enfd. 847 F.2d
835 (2d Cir. 1988).
Respondent’s animus against the Union is established by its
unlawful efforts in support of the antiunion petitions. Further,
Respondent did not follow its past practice of using seniority in
selecting employees for layoff. Respondent did not follow its
policy of recalling these employees when it needed them in
only 9 days after the layoffs. Finally, Respondent’s stated rea-
son for the selection of these employees has been discredited.
See Goodyear Tire & Rubber Co., 312 NLRB 674 (1993).
Under these circumstances, I find that the General Counsel
has established a strong prima facie case that Valencia and
Maldonado were selected for termination because of their pro-
tected activities in not joining in the effort to “deunionize” the
hotel.
Thus, the burden shifts to Respondent to establish that the
same action would have taken place in the absence of the em-
ployee’s union activities. Where, as here, the General Counsel
makes out a strong prima facie case under Wright Line, the
burden on Respondent is substantial to overcome a finding of
discrimination. Eddyleon Chocolate Co., 301 NLRB 887, 890
(1991). An employer cannot carry its Wright Line burden sim-
ply by showing that it had a legitimate reason for the action, but
must “persuade” that the action would have taken place even
absent the protected conduct. Centre Property Management,
277 NLRB 1376 (1985); Roure Betrand Dupont, Inc., 271
NLRB 443 (1984). As stated earlier, business considerations
required layoffs, but Respondent must persuade that Maldanado
and Valencia would have been selected for layoff absent their
protected activities. In the instant case, my finding that Re-
spondent’s defense is a pretext necessarily leaves intact the
strong prima facie case established by the General Counsel.
Limestone Apparel Corp., 255 NLRB 722 (1981); California
Gas Transport, 347 NLRB 1314 (2006).
C. Withdrawal of Recognition
The parties agree that the following section of the collective-
bargaining agreement was in effect:
This Agreement shall be in effect for the period com-
mencing December 5, 1999 and continuing to and includ-
ing November 30, 2003. At least (90) days prior to No-
vember 30, 2003 either party may serve notice upon the
other by Certified Mail, of a desire to terminate, change or
modify this Agreement, or any part thereof. In the event
no such notice is given, this Agreement shall be renewed
from year to year after the expiration date hereof, subject
to written notice of termination or modification ninety (90)
days prior to any subsequent anniversary date of this
Agreement. For the purpose hereof, December first (1st)
of each year, commencing December 5, 1999 shall be
deemed the anniversary of this Agreement. If, prior to the
expiration date, following the submission of such notice,
unless time is mutually extended, the parties fail to reach
an Agreement, then either party shall be free to strike or
lock out.
Upon receipt of such notice, it is agreed by both parties
that negotiations will commence within fifteen (15) days.
In the event a new wage settlement is not agreed upon by
November 30, 2003 this Agreement shall continue beyond
the expiration date thereof for such period of time as par-
ties are engaged in negotiating such successor Agreement.
The agreement was extended until November 30, 2004. The
Union sent a reopener notice on August 3, 2004. The parties
agreed to keep the status quo in place while negotiations were
continuing. Respondent admitted that there was a contract “in
place up until the time we withdrew recognition which would
obviate the need for any further negotiations.”
Under the Board’s contract-bar rules, where an employer and
a union have entered into a collective-bargaining agreement,
the employees are precluded from selecting an alternative bar-
gaining representative during its term. An irrebuttable pre-
sumption of continuing majority status is applied during that
period. To assure employees a free choice of representative at
reasonable intervals, the Board has held that a contract having a
fixed term of more than 3 years operates as a bar for as much of
its term as does not exceed 3 years. General Cable Corp., 139
NLRB 1123 (1962). A significant exception is made where the
party challenging the contract is either the employer or the
contracting union. In those cases, the contract continues as a
bar for its entire term. Montgomery Ward & Co., 137 NLRB
346, 348–349 (1962). The Board stated that the contract-bar
rules should not be interpreted so as to permit the contracting
parties to take advantage of whatever benefits may accrue from
the contract “with the knowledge that they have an option to
avoid their contractual obligations and commitments through
the device of a petition to the Board for an election.” Id. St.
Elizabeth’s Manor, 329 NLRB 341 fn. 10 (1999), overruled on
other grounds by MV Transportation, 337 NLRB 770 (2002).
While the collective-bargaining agreement could not act as a
bar to an employee decertification petition, the Employer, as a
party to the contract, could not challenge the Union’s majority
status. Thus, I find that Respondent unlawfully withdrew rec-
ognition from the Union at a time when it could not challenge
the Union’s majority status. Further, as seen below, I find that
Respondent could not rely upon the employee petitions to with-
draw recognition from the Union.
In Levitz Furniture Co. of the Pacific, 333 NLRB 717
(2001), the Board stated that an employer may rebut the pre-
sumption of an incumbent union’s majority status only on a
showing of actual loss of majority. The Board stated at 723:
The presumption of continuing majority status essentially
serves two important functions of Federal labor policy. First,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD278
it promotes continuity in bargaining relationships. . . . The re-
sulting industrial stability remains a primary objective of the
Wagner Act, and to an even greater extent, the Taft-Hartley
Act. Second, the presumption of continuing majority status
protects the express statutory right of employees to designate
a collective-bargaining representative of their own choosing,
and to prevent an employer from impairing that right without
some objective evidence that the representative the employees
have designated no longer enjoys majority support.
The Board then held that an employer may rebut the continu-
ing presumption of an incumbent union’s majority status, and
unilaterally withdraw recognition, only on a showing that the
union has, in fact, lost the support of a majority of the employ-
ees in the bargaining unit. Id at 725. The Board noted that the
Levitz principles are limited to cases where there have been no
unfair labor practices committed that tend to undermine em-
ployees’ support for unions. The Board stated that it would
continue to use its well-established policy that employers may
not withdraw recognition in a context of serious unremedied
unfair labor practices tending to cause employees to become
disaffected from the union. See, e.g., Williams Enterprises, 312
NLRB 937, 939–940 (1993), enfd. 50 F.3d 1280 fn. 1 (4th Cir.
1995).
In cases involving unfair labor practices other than a general
refusal to bargain, the Board has identified several factors as
relevant to determining whether a causal relationship exists
between unremedied unfair labor practices and the subsequent
expression of employee disaffection with an incumbent union.
These factors include:
(1) The length of time between the unfair labor practices and
the withdrawal of recognition; (2) the nature of the illegal
acts, including the possibility of their detrimental or lasting ef-
fect on employees; (3) any possible tendency to cause em-
ployee disaffection from the union; and (4) the effect of the
unlawful conduct on employee morale, organizational activi-
ties, and membership in the union. Williams Enterprises, su-
pra, citing Master Slack Corp., 271 NLRB 78, 84 (1984). See
also Olson Bodies, 206 NLRB 779 (1973).
In this case, there are multiple unfair labor practices; includ-
ing two unlawful discharges which took place, just prior to the
withdrawal of recognition. Threats and promises were used in
an attempt to obtain employee support of the antiunion peti-
tions. These unfair labor practices were designed to, and had
the effect of causing employee dissatisfaction with the Union.
An employer may not withdraw recognition from a union while
there are unremedied unfair labor practices tending to cause
employees to become disaffected from the union. Olson Bod-
ies, 206 NLRB 779, 780 (1973). As one court has stated, a
“company may not avoid the duty to bargain by a loss of major-
ity status caused by its own unfair labor practices.” NLRB v.
Williams Enterprises, 50 F.3d 1280, 1288 (4th Cir. 1995).
Thus, even if Respondent could have withdrawn recognition
while it was operating under an agreement to keep the contract
in effect, the petitions upon which Respondent withdrew recog-
nition were tainted by Respondent’s unfair labor practices. I
find that Respondent cannot rely on an expression of disaffec-
tion by its employees which is attributable to its own unfair
labor practices directed at undermining support for the union.
Accordingly, I find that Respondent violated Section 8(a)(5)
and (1) of the Act when it withdrew recognition from the Un-
ion.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening employees with loss of benefits or promis-
ing employees benefits in order to obtain support for an anti-
union petition, Respondent violated Section 8(a)(1) of the Act.
4. By discharging employees Maria Maldonado and Chris-
tina Valencia, in order to discourage union activities and union
membership, Respondent violated Section 8(a)(3) and (1) of the
Act.
5. By withdrawing recognition from and refusing to bargain
with the Union, Respondent violated Section 8(a)(5) and (1) of
the Act.
6. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent having discriminatorily discharged Maria
Maldonado and Christina Valencia, it must offer them rein-
statement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of dis-
charge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Respondent must also be required to expunge any and all
references to its unlawful discharges of Maldonado and Valen-
cia, from its files and notify Maldonado and Valencia in writing
that this has been done and that the unlawful discipline will not
be the basis for any adverse action against them in the future.
Sterling Sugars, Inc., 261 NLRB 472 (1982).
The General Counsel seeks the extraordinary remedy of at-
torney’s fees for Respondent’s defense of the withdrawal of
recognition allegations. Under the current standard as articu-
lated in Heck’s, 215 NLRB 765 (1974).14 The Board will order
reimbursement of a charging party’s litigation expenses only
where the defenses raised by the respondent are “frivolous”
rather than “debatable.” Here, I do not find that Respondent’s
defenses were frivolous or asserted in bad faith.
[Recommended Order omitted from publication.]

14 See also Tiidee Products, 194 NLRB 1234 (1972).