West Maui Resort Partners

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 846 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
West Maui Resort Partners, a Limited Partnership,
consisting of Signature Capital–West Maui,
LLC and WHKG-S GEN-PAR, Inc., d/b/a Em-
bassy Vacation Resorts and Hotel Employees &
Restaurant Employees, Local 5, AFL–CIO.
Cases 37–CA–5472, 37–CA–5492, 37–CA–5523,
37–CA–5525, 37–CA–5566, 37–CA–5604, 37–
CA–5612, and 37–CA–5665–1
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On February 13, 2001, Administrative Law Judge Ge-
rald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order,3 except as indi-
cated below.
For the reasons stated below, we adopt the judge’s
finding that the Respondent violated Section 8(a)(3) and
(1) of the Act by its suspension and discharge of employ-
ees Robbie Fronda, Robert Craddick, Kevin Freitas, and
George Balagso because of their known or suspected
union activities. However, we reverse the judge’s find-
ing that the Respondent violated Section 8(a)(1) by hir-
ing consultant Keith Hunter for the purpose of legitimiz-
ing those suspensions and discharges. We also find that

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 Drywall 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 his findings.
2 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(3) by suspending employee Leo Ramelb for 5 days
and Sec. 8(a)(5) by making certain unilateral changes without prior
notification to and bargaining with the Union as the collective-
bargaining representative of its employees. Finally, there are no excep-
tions to the judge’s dismissal of allegations that the Respondent vio-
lated Sec. 8(a)(3) by issuing warnings to employees Abraham Pena and
Noreen Medeiros.
3 We shall modify the judge’s recommended Order and notice in ac-
cordance with our decisions in Ferguson Electric Co., 335 NLRB 142
(2001), Excel Container, 325 NLRB 17 (1998), Indian Hills Care Cen-
ter, 321 NLRB 144 (1996), and Ishikawa Gasket America, Inc., 337
NLRB 175 (2001).
the Respondent did not violate Section 8(a)(1) by House-
keeping Manager Cathy Quevido’s questioning of em-
ployee Abraham Pena about the result of a representation
election.
I. THE DISCHARGES OF FRONDA, BALAGSO,
FREITAS,
AND CRADDICK
The judge found that the Respondent violated Section
8(a)(3) by suspending and discharging Fronda, Craddick,
Freitas, and Balagso because of their known or suspected
union activities.4 The Respondent excepts to these find-
ings, arguing that the General Counsel did not show,
pursuant to Wright Line,5 that its actions were motivated
by antiunion animus. The Respondent further contends
that all four employees were discharged because they
made threatening or sexually inappropriate statements to
fellow employee Cindi Ramelb,6 exposing the Respon-
dent (with respect to the sexually inappropriate state-
ments) to potential liability under Title VII of the Civil
Rights Act of 1964. We agree with the judge that the
General Counsel made the required showing that the sus-
pensions and discharges were motivated by antiunion
animus, and that the Respondent did not rebut this show-
ing by establishing that it would have disciplined the four
discriminatees regardless of their actual or suspected
union activities.
A. Material Facts
The relevant facts, described more fully in the judge’s
decision, are as follows. On September 29, 1998, a year
prior to the allegations at issue here, the Union lost an
election to represent the hotel’s employees by a vote of
126 to 86. The Union filed objections, and a hearing
officer, finding the objections meritorious, recommended
that a second election be held. While exceptions to the
hearing officer’s report were pending before the Board,
the Union and its employee supporters continued to or-
ganize the Respondent’s employees, forming employee
committees and circulating leaflets on Union-related is-
sues. Craddick and Fronda were both on the union orga-
nizing committee, and Freitas (who testified for the Un-
ion at the objections hearing) and Leo Ramelb were ac-
tive union supporters. There is no evidence that Balagso
supported the Union, although there is some evidence,
discussed below, that the Respondent’s management
4 As previously noted, the judge also found that the Respondent
unlawfully suspended Leo Ramelb for 5 days because of his union
activities.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
6 “Ramelb,” as used herein, refers to Cindi Ramelb unless otherwise
indicated.
340 NLRB No. 94
EMBASSY VACATION RESORTS 847
believed he did. All five employees worked in the Re-
spondent’s bell/valet department.
On July 14, 1999,7 Cindi Ramelb, another bell/valet
employee, complained to Human Resources Director
Bernie Delos Santos that Fronda had threatened her and
that Leo Ramelb, her brother-in-law, had harassed her.
Ramelb told Delos Santos that while she and Fronda
were assisting guests, they got into an argument about
scheduling, and that at one point during this argument
Fronda said, “Cindi don’t make me mad.” A guest over-
heard Fronda’s statement and remarked to Fronda:
“Don’t hit her. Don’t hit her.”
On July 15, Delos Santos suspended Fronda indefi-
nitely, pending possible discharge. In order to avoid the
possible appearance of disparate treatment because
Fronda was a union supporter, the Respondent retained a
third party investigator, Keith Hunter, to investigate
Ramelb’s allegations.8 Hunter interviewed the concerned
parties and on August 4 completed a report in which he
found that Fronda’s “don’t make me mad” statement was
a threat sufficiently serious to cause an admonition by a
passing guest.9 Hunter recommended that, consistent
with Respondent’s written progressive disciplinary pol-
icy, Fronda’s indefinite suspension be reduced to 5 days
and that he be given a written warning noting that further
violations would result in termination.10 Hunter also rec-
ommended that the entire bell/valet staff be required to
attend an offsite discrimination/sexual harassment train-
ing session and a separate offsite “partnering-type” retreat
to address interpersonal communication and ethnic diver-
sity issues, both to be conducted by an outside source.
After receiving Hunter’s findings, Delos Santos spoke
with Ramelb, who said she still felt threatened by Fronda
and was not comfortable working with him. Hunter then
spoke with Ramelb and on August 23 issued a supple-
mental report noting that Ramelb said she was willing to

7 All dates are in 1999 unless otherwise indicated.
8 Hunter owns Dispute Prevention & Resolution, Inc., a firm that
provides fact-finding, mediation, arbitration, and special master ser-
vices in such areas as wrongful discharge, whistleblower, disability,
and race and sex discrimination.
9 In his report, Hunter placed considerable weight on the guest’s com-
ment, concluding that Fronda’s statement must have been threatening to
prompt such a comment from a stranger. By contrast the judge, on the
basis of Fronda’s version of the incident, found that the comment was
sarcastic rather than a serious admonition. As the judge noted, Fronda
was “a very slight individual” while Ramelb was “conspicuously taller
and larger,” and Ramelb had previously been heard to call Fronda “you
skinny little so-and-so . . . only 98 pounds soaking wet.”
10 The Respondent’s progressive disciplinary system provides for
sanctions ranging from verbal to written reprimands, suspension, and
discharge. A comment on discharge in the written policy notes that
“TERMINATION OF EMPLOYMENT IS A SERIOUS MATTER which
normally occurs after corrective discipline has failed.” (Emphasis in
original.)
reserve judgment and allow Fronda a reasonable period
of time to improve his behavior, provided that she and
Fronda would not have to work together. Later the same
day, however, the Respondent discharged Fronda. At
about the same time, the Respondent unlawfully sus-
pended Leo Ramelb for 5 days, for allegedly harassing
Ramelb.11 The Respondent did not, however, pursue
Hunter’s training and retreat recommendations for the
bell/valet employees.
On September 8, the Union advised the Respondent in
writing that its organizing committee included Fronda,
Craddick, Leo Ramelb, and another employee, Noreen
Medeiros. On September 16, the Respondent replied in a
letter that it posted on a hotel bulletin board, stating in
part that “[y]our organizing committee is comprised of
employees who have subjected themselves to discipli-
nary action up to and including termination.” On Sep-
tember 24, the Board adopted the hearing officer’s rec-
ommendation that the first election be set aside and or-
dered a second election.
On September 28, in a letter to Delos Santos, an attor-
ney representing Cindi Ramelb alleged that Ramelb had
been subjected to sexual harassment at the hotel, describ-
ing four incidents involving Freitas, Balagso, and Crad-
dick.12 On October 4, Delos Santos placed all three em-
ployees on suspension pending discharge. The Respon-
dent again retained Hunter to make fact findings on
Ramelb’s allegations, but this time specifically instructed
him not to include recommendations in his report. On
October 19, Hunter issued his report, finding that the
incidents as alleged by Ramelb had occurred. On Octo-
ber 21, the second election was held and the Union won
by a vote of 144 to 68. The Respondent issued letters of
termination to Balagso and Craddick on December 2, and
to Freitas on December 13.
B. Analysis
The Respondent argues that, contrary to the judge’s
findings, the General Counsel failed to establish, pursu-
ant to Wright Line, that animus towards the known or
suspected protected activity of Fronda, Balagso, Freitas,
and Craddick was a motivating factor in their suspen-
sions and terminations. The Respondent further contends
11 As the judge noted, Hunter had recommended that Leo Ramelb be
given a verbal warning. As in the case of Fronda, however, the Re-
spondent ignored this recommendation.
12 According to Ramelb, on one occasion Balagso allegedly made a
lewd comment to her about a female guest. On another occasion, when
she asked Balagso what there was to eat in the café, Balagso replied,
“Nothing you would want to eat,” and added, “But I have something good
for you to eat.” Craddick, while working with Ramelb, allegedly pointed
to a male guest who was standing naked in the window of his room and
made a remark about his anatomy. Finally, Ramelb alleged that Freitas
made a sexually inappropriate remark to her about a female guest.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
that it would have discharged these employees even if
they had not engaged in protected activity, consistent
with its past disciplinary practice and in order to insulate
itself from potential liability under Title VII. We find
that the evidence supports the judge’s findings.
Wright Line, supra, requires the General Counsel to
make an initial showing that protected conduct was a
motivating factor in an employer’s decision to take a
disciplinary action. New Otani Hotel & Garden, 325
NLRB 928, 938 (1998). Proof of discriminatory motiva-
tion can be based on direct evidence or can be inferred
from circumstantial evidence based on the record as a
whole. Ronin Shipbuilding, 330 NLRB 464 (2000). To
support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the prof-
fered reason for the discipline and other actions of the
employer, disparate treatment of certain employees com-
pared to other employees with similar work records or
offenses, deviation from past practice, and proximity in
time of the discipline to the union activity. E.g., W.F.
Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995).
1. Knowledge of union activity
As an initial matter, the judge correctly found that the
Respondent knew or suspected that all four employees
were union supporters. As noted above, Fronda and
Craddick were both active and conspicuous union sup-
porters throughout its first and second organizing cam-
paigns, and both were members of the Union’s organizing
committee. Freitas was an open union supporter who
talked to other employees about the Union and testified
on its behalf at the prior hearing on election objections.
There was less evidence that Balagso was a union sup-
porter. He testified—credibly, as the judge found —that
he was not an “active” supporter and that he was not “op-
posed” to the Union. The Respondent’s contemp-
oraneous notes, on the other hand, indicate that at the time
of his suspension he told management that “if this was a
union issue . . . he wanted us to know that he was pro-
hotel.” The Respondent contends that the latter evidence
establishes that it treated all four employees the same
way, without regard to union activity, and that their sus-
pensions and discharges were consequently lawful.
It is clear from the record, however, that the manager of
Balagso’s own department believed at the time that he
was in fact a union supporter. As the judge found from
the credited testimony, Neftali Reyes, bellboy/valet de-
partment manager, informed Hunter during the latter’s
investigation of Ramelb’s allegations against Fronda and
Leo Ramelb that he (Reyes) believed that all the employ-
ees in the department except Cindi Ramelb were proun-
ion. Reyes had also previously told General Manager
Dowsett that “everybody [in the unit] was a yes vote.”
Union-motivated disciplinary action taken in the belief—
even inaccurate—that the employee supports a union is
unlawful. Handicabs, Inc., 318 NLRB 890, 897 (1995),
enfd. 95 F.3d 681 (8th Cir. 1996), cert. denied 521 U.S.
1118 (1997).13
2. Antiunion animus
We also agree with the judge that the Respondent’s ac-
tions were motivated by union animus. We note first
that, as indicated earlier, the Respondent has not ex-
cepted to the judge’s finding that its suspension of Leo
Ramelb was unlawfully motivated. That finding accord-
ingly becomes final. The Respondent’s unlawful disci-
plinary action against one prounion employee based on
antiunion animus helps to support the inference that the
same animus motivated its actions against other pro-
union employees.
The timeframe of the disciplinary actions is also sig-
nificant. The Freitas, Balagso, and Craddick suspensions
were imposed on October 4, less than 2 weeks after the
Board ordered a second election but before that election
was held. The discharges were finalized just a few weeks
after the Union was certified. The Union, of course, was
actively seeking employee support throughout this period.
In addition, as noted above, less than a month before the
Freitas, Balagso, and Craddick suspensions, the Union
had advised the Respondent in writing that Fronda, Crad-
dick, Leo Ramelb, and Noreen Medeiros were members
of its organizing committee. The Respondent not only
sent its reply to the Union but posted the reply on a hotel
bulletin board, stating categorically that the committee “is
comprised of employees who have subjected themselves
to disciplinary action up to and including termination.”
The Respondent thereby suggested publicly that all the
committee members, including Medeiros (who had no
complaints of misconduct pending against her) might be
discharged. The reply letter remained posted for an ex-
tended period of time, even after Medeiros protested to
the Respondent that it defamed her.

13 It is possible that higher management officials did not assume that
Balagso was prounion but nevertheless chose to discharge him in order to
prevent the Freitas and Craddick discharges from appearing union-based.
This would also have been unlawful. It is well established that, in the
context of a union organizing drive, the discharge of a neutral employee
in order to facilitate or cover up discriminatory conduct against a known
union supporter is a violation of Sec. 8(a)(3). Bay Corrugated Container,
310 NLRB 450 (1993), enfd. 12 F.3d 213 (6th Cir. 1993); NLRB v. Excel
Case Ready, 238 F.3d 69, 72 fn. 6 (1st Cir. 2001). See also Dawson
Carbide Industries, 273 NLRB 382, 389 (1984), enfd 782 F.2d 64 (6th
Cir. 1986) (such employees are “pawns in an unlawful design,” and their
discharge is consequently unlawful). Here, as in Bay Corrugated Con-
tainers, supra, the Respondent would have had no justification for treating
Balagso, who was also named in the complaint letter from Cindi
Ramelb’s counsel, in a different manner from Freitas and Craddick.
EMBASSY VACATION RESORTS 849
As the judge also found, the Respondent decided to
suspend Fronda, and later Balagso, Craddick, and
Freitas, pending discharge, without making even a pre-
liminary investigation or giving any of the discriminatees
an opportunity to respond to Ramelb’s allegations. An
employer’s failure to permit an employee to defend him-
self before imposing discipline supports an inference that
the employer’s motive was unlawful. Johnson Freightli-
nes, 323 NLRB 1213, 1222 (1997); K&M Electronics,
283 NLRB 279, 291 fn. 45 (1987).
Given the unlawful suspension of Leo Ramelb, the tim-
ing of the suspensions and discharges, the Respondent’s
posted reply to the Union of September 16, its failure to
give the discriminatees a chance to respond to the allega-
tions against them, as well as its disparate treatment of the
discriminatees, its deviation from past practice, and its
pretextual justification for the discharges (all discussed
below),14 we adopt the judge’s inference that antiunion
animus motivated the Respondent’s actions.15
3. The Respondent’s defense
The burden accordingly shifts to the Respondent to
show that the discriminatees would have been terminated
even absent their union activity. We agree with the
judge that the Respondent has not met this burden.
First, as the judge found, the Respondent’s proffered
reasons for the suspensions and discharges are at odds
with its actions. Delos Santos testified that Fronda was
suspended and ultimately discharged because, by his
alleged threat, he placed Ramelb in fear for her safety.
However, the Respondent allowed Fronda and Ramelb to
continue to work together (which they did without inci-
dent) on at least three occasions after she made her com-
plaint against him but before he was suspended. The
Respondent then ignored Ramelb’s statement reported by
consultant Hunter that she would not object to giving
Fronda a chance to change his behavior, provided that he
worked on a different shift.
The Respondent also disregarded the recommendations
of Hunter himself, even though he had been hired pre-
cisely for his expertise in such cases. As noted above, in
his report on the Fronda and Leo Ramelb allegations,

14 A finding that an employer’s stated reason for taking a discipli-
nary action is a pretext supports the inference that the real motive was
unlawful. ADS Electric Co., 339 NLRB 1020, 1023 (2003); Teddi of
California, 338 NLRB 1032, 1040 (2003); Williams Contracting, 309
NLRB 433 fn. 2 (1992).
15 Although we find that the evidence cited above establishes the Re-
spondent’s antiunion animus, we also note as background evidence the
Respondent’s antiunion campaign literature, cited by the judge. See
Overnite Transportation, 335 NLRB 372, 375 fn. 15 (2001); Mediplex
of Stamford, 334 NLRB 903 (2001); Affiliated Foods, 328 NLRB 1107,
1107 (1999); American Packaging, 311 NLRB 482 fn. 1 (1993); Gen-
corp, 294 NLRB 717 fn. 1 (1989).
Hunter recommended that the Respondent follow its pro-
gressive disciplinary system by issuing a written warning
to Fronda. He also recommended that the Respondent
provide sensitivity training on sexual harassment and on
interemployee communication and ethnic diversity, using
outside expertise. The Respondent not only ignored
these recommendations but categorically directed Hunter
not to make any recommendations when he was later
assigned to investigate the allegations against Freitas,
Balagso, and Craddick. Had the Respondent been moti-
vated by the goal of deterring sexual harassment in the
future, or by its potential liability for failure to take de-
terrent action, we believe it would have shown greater
interest in Hunter’s recommendations.
In addition, the suspension and later discharge of
Fronda, Balagso, Craddick, and Freitas, were sanctions
far more severe than the actions the Respondent took in
response to prior similar misconduct. The judge’s deci-
sion cites instances where employees threatened cowork-
ers, used profanity on the job, and engaged in profane and
rude behavior towards other employees but, unlike here,
were not immediately suspended or discharged. Those
nonunion employees merely received warnings, short
suspensions, or were put on corrective plans to improve
their behavior; only after such measures proved unsuc-
cessful did the Respondent resort to suspensions and dis-
charges.16 As Hunter noted in his report on the Fronda
and Leo Ramelb allegations, in previous disciplinary
cases involving other employees “[t]he Company went
the extra mile to give each of [those] employees every
opportunity to turn things around before termination,” and
“[i]n some instances the Company has bent over back-
wards to give troubled employees a chance to cure their
problems.” By contrast, Fronda, Freitas, Craddick, and
Balagso—each of whom had positive performance
evaluations reflecting a strong work record and few or no
prior disciplinary infractions—were peremptorily sus-
pended and subsequently discharged without any effort at
corrective or rehabilitative measures.
16 For example, approximately 1 year prior to the events here, Cindi
Ramelb complained that Stacey Kahue had threatened and harassed her.
Although Kahue was also the subject of complaints from other employ-
ees and had a record of significant work deficiencies, he was not sus-
pended but was put on a 30-day “corrective plan” to improve his per-
formance. He was not actually disciplined until several months later,
when he again engaged in threatening behavior and was absent from his
workstation. Similarly, employee Jeremy Delos Reyes was given sev-
eral brief suspensions and a warning for repeated incidents of profanity,
threats, and insubordination. Although the judge noted a single in-
stance of sexual harassment by an independent contractor who was
working for the Respondent and was removed, that incident involved a
sexual assault, a far more serious infraction than any of the verbal inci-
dents Ramelb alleged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
The disparate severity of the sanctions imposed on
Fronda, Freitas, Craddick, and Balagso was also a depar-
ture from the Respondent’s own written policy of pro-
gressive discipline, which established a gradation of pen-
alties from verbal warnings ultimately to discharge, with
suspension normally applicable after a “third offense.”
While immediate discharges were permitted for single
instances of “serious misconduct,” the policy stated that
termination “normally occurs after corrective discipline
has failed.” Having applied this policy in previous cases
of misconduct, the Respondent wholly disregarded it
here.17
Our dissenting colleague characterizes the alleged
misconduct by Balagso, Freitas, and Craddick as “seri-
ous,” exposing the Respondent to legal liability under
Title VII for failure to prevent sexual harassment. The
Supreme Court has described the standard for sexual
harassment claims this way:

When the workplace is permeated with “discriminatory
intimidation, ridicule, and insult” . . . that is “suffi-
ciently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment,” . . . Title VII is violated.
. . .
Conduct that is not severe or pervasive enough to cre-
ate an objectively hostile or abusive work environ-
ment—an environment that a reasonable person would
find hostile or abusive—is beyond Title VII’s purview.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Here, three of the four specific incidents alleged in de-
tail by Ramelb only involved comments about third per-
sons.18 It is well established, meanwhile, that Title VII
does not require an employer to discharge an employee
for engaging in sexual harassment, so long as the em-
ployer takes reasonable action to protect the complainant.
Baskerville v. Culligan International Co., 50 F.3d 428,
432 (7th Cir. 1995). Against this legal and factual back-
drop, we find it implausible that the Respondent consid-
ered the Ramelb allegations to be so serious that they
justified immediate suspension, let alone ultimate dis-
charge.

17 Ramelb herself told Hunter and later testified that she was
“shocked” when the three discriminatees were suspended. She also
testified that Department Manager Reyes told her that he was also
“shocked” by the suspensions.
18 The judge, however, found from Ramelb’s testimony that “she
seemed to believe that in her mind any conduct of which she did not
approve, whether sexually oriented or not, constituted sexual harass-
ment since she was the only female in the department and all the others,
who may have done something she found objectionable, were male.”
Our dissenting colleague points out that it is not the
Board’s function to judge the propriety of how the Re-
spondent chose to protect itself against a potential Title
VII lawsuit. That is not in dispute. It is the Board’s
function, however, to determine whether the Respon-
dent’s actions were in fact motivated by that concern.
The evidence reviewed above convinces us that appre-
hension of a Title VII lawsuit was a pretext for discharg-
ing Freitas, Craddick, and Balagso, not the Respondent’s
actual motive.
Indeed, there is significant evidence in the record that
even the Respondent’s supervisors and management offi-
cials did not believe some of Ramelb’s allegations or be-
lieved they were exaggerated. Reyes told Hunter during
his investigation that Ramelb was being “overly sensi-
tive” about Fronda and that Fronda “probably did not try
to threaten her.” On an earlier occasion, the Respondent’s
general manager, Dowsett, told Ramelb that she was
“overreacting” to alleged incidents of harassment, and
Reyes (who was present) remarked in response that he
was having “counseling sessions” with Ramelb.19
For all of these reasons, we find that the Respondent
has failed to establish that it would have suspended and
discharged Fronda, Freitas, Craddick, and Balagso if they
had not engaged in known or (in Balagso’s case) sus-
pected union activity. We accordingly affirm the judge’s
finding that the Respondent violated Section 8(a)(1) and
(3) of the Act by suspending and discharging these em-
ployees.
II. THE RESPONDENT’S HIRING OF HUNTER
The Respondent also excepts to the judge’s finding
that the Respondent violated Section 8(a)(1) by hiring
Hunter to investigate Ramelb’s allegations of harass-
ment. The judge concluded that the Respondent hired
Hunter with the expectation that he would legitimize the
Respondent’s suspension of Leo Ramelb and suspension
and discharge of the other discriminatees. Even if this is
true, however, we find that Respondent’s hiring of
Hunter did not, by itself, constitute an independent viola-
tion of Section 8(a)(1).
None of the parties disputes Hunter’s credentials as an
experienced, neutral investigator; nor is there any evi-
dence of collusion between Hunter and the Respondent
with respect to his investigation or his findings. There is
no allegation or evidence that Hunter was given any in-
struction that would have affected his ultimate findings,
or that he made any references to union activities when
interviewing the discriminatees that would have tended
19 The judge found that at least two of Ramelb’s allegations either
did not occur or were of a much less serious nature than the Respondent
alleged.
EMBASSY VACATION RESORTS 851
to have a coercive impact against their engaging in Sec-
tion 7 activity.20
III. QUEVIDO’S INTERROGATIONS OF PENA
We find no merit in the General Counsel’s cross-
exception, which argues that the Respondent violated
Section 8(a)(1) when its supervisor, Cathy Quevido,
questioned employee Abraham Pena about the results of
the second representation election.
Quevido was absent from the hotel when the second
election was held. Pena, who had been minimally active
for the Union several months earlier, testified that the
day after the election Quevido called him at work from
outside the hotel, asked him how everything was, and
then asked him the election result. According to Pena,
when he told her the Union had won, she asked him
“how he felt about that,” and he responded by saying,
“Well, what can I do? . . . There was a lot of activity, you
know, with coworkers and they all want the union.”
Quevido then said, “Oh, okay.” Quevido, however, testi-
fied that this conversation never occurred.
The judge did not make an express finding on whether
the conversation occurred or whether, if it did, Quevido’s
query of how Pena “felt” about the Union’s victory vio-
lated Section 8(a)(1).21 Like the judge, we shall assume
that the conversation occurred as Pena testified, but, con-
trary to the General Counsel’s argument, we find that the
conversation was not coercive.
Under Sunnyvale Medical Clinic, 277 NLRB 1217
(1985), the Board looks to the totality of the circum-
stances to determine whether an employer’s questioning
would reasonably tend to restrain, coerce, or interfere
with rights guaranteed by the Act. The Board examines
factors such as whether the interrogated employee is an
open and active union supporter, the background of the
interrogation, the nature of the information sought, the
identity of the questioner, and the place and method of
interrogation. Rossmore House, 269 NLRB 1176, 1178
fn. 20, affd. 760 F.2d 1006 (9th Cir. 1985); Bourne v.

20 Any failure by the Respondent to provide Hunter with all the in-
formation in its possession relevant to his investigations was relevant to
the complaint allegations of discrimination under Sec. 8(a)(3). Such
failure did not, however, make the hiring of Hunter, by itself, an inde-
pendent violation of Sec. 8(a)(1).
21 For the purpose of deciding whether three disciplinary warnings
Quevido gave Pena several months later violated Sec. 8(a)(3), the judge
found that “even assuming” the conversation occurred as Pena alleged,
it could not have indicated to Quevido that Pena was a union supporter.
However, in his analysis of the 8(a)(3) allegation, the judge stated that
Quevido “impressed me as a credible witness” when she testified that
she did not issue the warnings to Pena for antiunion reasons. The judge
went on to dismiss the 8(a)(3) allegation over Quevido’s three warnings
to Pena, implicitly discrediting Pena’s assertion that Quevido was mo-
tivated by his union activity, and, as previously noted, the General
Counsel does not except to that finding.
NLRB, 332 F.2d 47, 48 (2d Cir. 1964); Sunnyvale Medi-
cal Clinic, supra at 1218.
Taking these factors into consideration, we find that, in
context, Quevido’s questions were not coercive. First,
the questioning occurred over the telephone, rather than
in a face-to-face confrontation, or in a location that could
intimidate Pena. Second, Quevido explained to Pena her
motivation for telephoning him; she had just returned
from vacation during which the election had occurred.
And, although Quevido and Pena were not particularly
close, they did work together in the same department, so
contact between them was not unusual. Next, although
Quevido asked Pena how he felt about the results, Pena
responded in a noncommittal fashion, and Quevido ac-
cepted that response without objection or further probing.
Thus, viewed in its totality, we find that the conversation
between Quevido and Pena amounted to little more than
a casual conversation between a supervisor and em-
ployee, and was not of the type that would reasonably
tend to restrain or coerce employees in the exercise of
their Section 7 rights. Cardinal Home Products, 338
NLRB 1004, 1009–1010 (2003). Accordingly, we dis-
miss this 8(a)(1) allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Embassy
Vacation Resorts, Maui, Hawaii, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a) and
reletter the subsequent paragraphs.
“(a) Within 14 days from the date of this Order, offer
employees Robbie Fronda, George Balagso, Kevin
Freitas, and Robert Craddick full reinstatement to their
former jobs, or if those jobs no longer exist, to substan-
tially equivalent positions without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(b) Make Leo Ramelb, Robbie Fronda, George
Balagso, Kevin Freitas, and Robert Craddick whole for
any loss of wages, including tips or loss of other benefits
they may have suffered by reason of the Respondent’s
discrimination against them in the manner set forth in the
remedy section of the judge’s decision.”
2. Substitute the following for the current paragraph
2(c).
“(c) 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
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.”
3. Substitute the following for the current paragraph
2(e).
“(e) Within 14 days after service by the Region, post at
the Respondent’s facility in Maui, Hawaii, copies of the
attached notice marked “Appendix.”22 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by the Respondent’s
authorized 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 July 21, 1999.”
4. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN BATTISTA, dissenting.
I agree with my colleagues that the Respondent’s sus-
pension and discharge of employee Fronda were unlaw-
ful. As they correctly conclude, the General Counsel
satisfied his initial burden under Wright Line, and the
Respondent did not adequately rebut it.
However, I do not agree that the suspensions and dis-
charges of the three other employees were unlawful.
Assuming arguendo that the General Counsel satisfied
his initial burden, the Respondent has rebutted it. First,
unlike Fronda, these three employees allegedly engaged
in sexual harassment and misconduct. Such conduct can
give rise to liability under Title VII and to damaging
publicity to an employer. The Respondent’s investigator
found that the conduct occurred, and that there was a
hostile work environment.1 Second, and again unlike the

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
1 The judge made no contrary findings. My colleagues find it “im-
plausible” that the Respondent considered the allegations to be suffi-
ciently serious to justify the suspensions of Balagso, Freitas, and Crad-
dick. I disagree. Based on Hunter’s report following his investigation
of the incidents involving Leo Ramelb and Fronda, the Respondent was
on notice that a hostile work environment existed within the bell valet
Fronda situation, the victim-employee hired counsel who
threatened to sue under Title VII for such sexual harass-
ment and misconduct. Third, the prior situations of
lesser discipline (on which my colleagues rely) did not
involve sexual harassment in violation of Federal law,
and did not involve threatened lawsuits. Finally, the al-
leged conduct of these three employees was serious, and
the Respondent’s policies permit discharge for such mis-
conduct, even for first offenders.
In these circumstances, the Respondent simply wished
to avoid a threatened lawsuit and damaging publicity. In
my view, the Respondent would have taken the remedial
measures irrespective of whether there was a union cam-
paign or not.
The majority and the judge appear to discount the
gravity of the threat to initiate legal action against the
Respondent. The judge says that there is no requirement
under Title VII that the Respondent discharge these
employees. However, it is not the Board’s function to
pass on the Respondent’s potential liability under the
Civil Rights Act or to evaluate the adequacy of steps that
the Respondent took to defend against such allegations.
Clearly, discharging the employees at issue was an
effective—perhaps the most effective—means of
avoiding liability under that statute. It is not our place to
judge whether some lesser action would have been
adequate. In addition, quite apart from a lawsuit, the
Respondent has a business interest (and perhaps a moral
obligation) to eradicate the hostile work environment that
the investigator found to exist.
Although my colleagues suggest that the Respondent
over reacted by discharging the three employees, they
also suggest that the Respondent under reacted by not
implementing departmentwide training on the avoidance
of sexual harassment. Again, it is not our place to judge
the adequacy of the Respondent remedial measures. If
the Respondent chose to focus on the culprits, rather than
on innocent employees in the department, I would not
second-guess that response.
My colleagues say that some of the Respondent’s own
managers and supervisors questioned some of the allega-
tions. In my view, this contention is quite wide of the
mark. The essential points are that neutral investigator
Hunter found that improper conduct had occurred, and
there was in fact a hostile work environment. In these
circumstances, it was not unreasonable for the Respon-
dent to take corrective action against the alleged dis-

department. Given Hunter’s report, Cindi Ramelb’s retention of coun-
sel, and the advice of its own attorney, it is hardly implausible that the
Respondent felt it was necessary to take immediate action to address
Ramelb’s complaints, pending an investigation.
EMBASSY VACATION RESORTS 853
criminatees, despite the contrary views of some of its
own managers and supervisors.
On this basis, I would dismiss the allegations as to the
three employees.

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 or protection
Choose not to engage in any of these protected
activities.

WE WILL NOT suspend or discharge employees be-
cause they joined, supported, or assisted the Union, Hotel
Employees and Restaurant Employees, Local 5, AFL–
CIO, or any other union.
WE WILL NOT require you to seek the assistance of
your Union representative before coming to our human
resources department with your concerns or complaints,
if you prefer not to seek such assistance.
WE WILL NOT unilaterally impose changes in your
terms and conditions of employment without giving the
Union notice and an opportunity to bargain over any
such change, for the following collective-bargaining unit:
All full-time and regular part-time employees em-
ployed by us at our facility at 104 Kaanapali Shore
Place, Lahaina, Hawaii, excluding all timeshare em-
ployees, RMI employees, managerial employees, con-
fidential employees, security employees and/or guards,
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed to them under the National Labor Relations
Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Robbie Fronda, George Balagso, Kevin
Freitas, and Robert Craddick full reinstatement to their
former jobs, or if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights, privileges, or benefits they
previously enjoyed.
WE WILL make Leo Ramelb, Robbie Fronda, George
Balagso, Kevin Freitas, and Robert Craddick whole for
any loss of wages, including tips, and for loss of any
other benefits they may have suffered as a result of our
unlawful discrimination against them.
WE WILL within 14 days from the date of the Board’s
order, remove from our files any references to the unlaw-
ful suspensions and discharges of Leo Ramelb, Robbie
Fronda, George Balagso, Kevin Freitas, and Robert
Craddick, and WE WILL within 3 days thereafter, notify
them in writing that this has been done and that that dis-
crimination will not be used against them in any way.
WE WILL, at the request of the Union, rescind the uni-
lateral changes we made in your terms of employment
regarding access to our human resources department,
enforcement of tardiness rules, and off-duty sign-in re-
quirements, and WE WILL bargain with the Union re-
garding such matters before making such changes.

EMBASSY VACATION RESORTS

Mary Ann Pacacha, Esq., for the General Counsel.
Wesley M. Fujimoto, Esq. (Dwyer Imanaka Schraff Kudo
Meyer & Fujimoto), of Honolulu, Hawaii, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pur-
suant to a notice of hearing in this matter was held before me in
Maui, Hawaii, on September 25–29, and October 2–5, 16, 23,
and 24, 2000. The original charge in Case 37–CA–5472 was
filed by Hotel Employees & Restaurant Employees, Local 5,
AFL–CIO (the Union), and various additional charges were
filed by the Union thereafter. On January 31, 2000, the Re-
gional Director for Region 20 of the National Labor Relations
Board (the Board) issued an order consolidating cases, consoli-
dated complaint and notice of hearing alleging violations by
West Maui Resort Partners, a Limited Partnership, consisting of
Signature Capital-West Maui, LLC and WHKG-GEN-PAR,
Inc., d/b/a Embassy Vacation Resorts (Respondent) of Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). Amended consolidated complaints were issued by the
Regional Director on May 26 and August 25, 2000. The Re-
spondent, in its answers to the complaint and amended com-
plaints, duly filed, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), and counsel for the Respondent. Upon the entire
record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a limited partnership located in Lahaina
on the Island of Maui, Hawaii, where it is engaged in the opera-
tion of a hotel providing food and lodging. In the course and
conduct of its business operations the Respondent annually
derives gross revenues in excess of $500,000 and purchases and
receives goods and services valued in excess of $5000 which
originate from points outside the State of Hawaii. It is admitted
and I find that the Respondent is and at all material times has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union is
and has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether the Re-
spondent has violated Section 8(a)(3) and (1) of the Act by
suspending and discharging certain employees, and whether the
Respondent has violated Section 8(a)(5) and (1) of the Act by
making certain unilateral changes without prior notification to
and bargaining with the Union as the collective-bargaining
representative of its employees.
B. The Facts
1. Background
The Respondent assumed the ownership and operations of
the hotel in about November 1997, and currently has an em-
ployee complement of approximately 264 full-time and regular
part-time employees.
The employees involved in this case were classified as
bell/valet department employees unless otherwise specified
herein. Bell/valet employees park cars for the guests, bring
guests’ cars from the garage or parking lot to the front entrance,
load and unload luggage from cars as guests leave and arrive,
and carry luggage to and from guests’ rooms when they are
checking in or departing. One employee is classified as a
bell/valet clerk, and is essentially a dispatcher who receives
phone calls from guests who are checking out and dispatches
the next available bell/valet employee(s) to assist the guest.
The Union’s involvement with the Respondent commenced
on about July 17, 1998, when the Union first filed a representa-
tion petition. After a representation hearing, a first election on
September 29, 1998 (which the Union lost by a vote of 126 to
86), the filing of election objections by the Union, a hearing on
objections, the hearing officer’s report on objections dated
January 8, 1999, in which it was recommended that the objec-
tions were meritorious and that a second election should be
conducted, exceptions filed by the Respondent, and, ultimately,
a Board decision dated September 24, 1999, upholding the
recommendations of the hearing officer and directing a second
election, a second election was held on October 21, 1999. The
Union prevailed in the second election by a vote of 144 to 68,
and on October 29, 1999, the Union was certified as the collec-
tive-bargaining representative of the Respondent’s employees.
Thus, the election process took some 14 months from begin-
ning to end, during which time the Respondent vigorously op-
posed the Union through meetings and written campaign
propaganda disseminated to the employees,1 and the Union
countered with abundant campaign propaganda of its own.
Bernie Delos Santos was hired in March 1998 as the Re-
spondent’s human resource director. The union activity began
a few months after she was hired, and she was given the re-
sponsibility of conducting the Respondent’s campaign to op-
pose the unionization of the Respondent’s employees. The
Union, by letter to the Respondent dated July 17, 1998, identi-
fied three individuals as members of its organizing committee,
namely, Noreen Madeiros, a front-desk clerk, and Robert Crad-
dick and Robbie Fronda, both of whom were longtime
bell/valet employees. These three employees actively cam-
paigned on behalf of the Union at all material times herein,
testified for the Union at the two representation hearings, wrote
and conspicuously disseminated numerous union newsletters
and bulletins, and, in this regard, signed their names to the arti-
cles they authored which were often in direct response and
opposition to the campaign materials written and disseminated
by Delos Santos.
Neftali Reyes was hired as the bell/valet department manager
in October 1998, and continued in this position until about De-
cember 1999 when he became assistant manager of the hotel.
He left the hotel’s employ in February 2000.
The Respondent has a published progressive disciplinary
policy, as follows:

If you commit infractions or display improper conduct you
will be subject to the following disciplines:
1. A VERBAL REPRIMAND by your supervisor.
2. A WRITTEN REPRIMAND (with a copy placed in
your personnel file) for the second offense.
3. SUSPENSION OR DISCHARGE (with a written
copy of the violation that resulted in the discharge includ-
ing reference to any previous verbal or written warnings
given) for the third offense. Any third rule violation (It
does not have to be the same rule violation) justifies dis-
charge, but could result in a suspension without pay or
third and last warning).
4. DISCHARGE may also be imposed for a first of-
fense in cases of a serious misconduct!

TERMINATION OF EMPLOYMENT IS A SERIOUS
MATTER which normally occurs after corrective discipline
has failed. [Emphasis in original.]

1 For example, a leaflet distributed by the Respondent prior to the
first election, entitled “Urgent Communication,” states, inter alia, that
the union people “think you’re stupid,” and have advanced “Smoke-
screen issues, false promises, lies, false guarantees, storybook fantasies
of Robin Hood and Alice in Wonderland, and insults to employees and
managers of this property . . . . All we ask is that you give the new
management a chance to prove itself for one year . . . . Management is
making a lot of progress with its new Human Resources Department
and does not need any more interference.”
EMBASSY VACATION RESORTS 855
2. Suspension and discharge of Robbie Fronda; suspension
of Leo Ramelb
Cindi Ramelb (Cindi) was the only female employee in the
bell/valet department. On July 14, 1999, Cindi complained to
Human Resources Director Delos Santos about harassment by
her brother-in-law, Leo Ramelb (Leo), and about a threat by
Robbie Fronda, both longtime bell/valet employees, and fur-
ther, about being subjected to mistreatment by fellow employ-
ees for the past 8-1/2 years. She also alluded to perhaps hiring
a lawyer if something was not done about the situation. Cindi,
according to Delos Santos, was particularly upset and crying,
and Delos Santos testified that although Cindi had been “tear-
ful” when she had made prior complaints, she had never seen
Cindi so upset. On July 15, 1999, after Delos Santos jointly
conferred with Regional Human Resource Director Julie Field
and with the Respondent’s attorney, Fronda was indefinitely
suspended. It was decided to present Cindi’s complaints to an
impartial third-party investigator. Without exception the Re-
spondent had always performed an internal investigation of
employee complaints when necessary, but because of Fronda’s
union activity and his position as one of the three members of
the Union’s organizing committee, it was decided that the find-
ings of a third-party investigator would avoid the appearance of
discrimination or disparate treatment against Fronda.
Someone from the office of the Respondent’s attorney con-
tacted Dispute Prevention & Resolution, Inc. (DPR), located in
Honolulu, Hawaii, and the Respondent entered into an investi-
gation and fact finding agreement with that entity. DPR desig-
nated Keith Hunter, president/CEO of DPR, as fact finder.
Hunter and the Respondent scheduled 1 day for Hunter’s visit
to the Respondent’s facility, and his investigation commenced
and was completed on the same day, July 28, 1999, during
which he interviewed Delos Santos, Cindi Ramelb, Robbie
Fronda, Leo Ramelb, bell/valet employee Edgar Inez, and
Bell/Valet Manager Neftali Reyes.
Hunter, who testified at length in this proceeding, had been
designated to investigate and resolve the two specific allega-
tions simultaneously brought to human resources by Cindi
Remelb on July 14, 1999, namely, that Fronda had threatened
her on July 13, and that Leo Ramelb had engaged in harassing
behavior toward her. However, upon his initial interview with
Cindi, he learned that the complaints against Fronda and Leo
were just the tip of the iceberg, and that her perceived prob-
lems, which she claimed had been festering since she was first
hired in 1990, were premised to a great extent on the fact that
“the boys” in the bell/valet department were cliquish and would
not accept her as an equal, and that because of this she had been
harassed2 and isolated and treated unequally, unfairly, and with
disrespect by a former manager and many coworkers alike
throughout her 8-1/2 years of employment. Further, she com-

2 The alleged harassing behavior included “stinkeye” which is not a
term of art and is apparently a commonly accepted term in Hawaii that
generally connotes any type of look that may, under any given scenario,
be perceived as disrespectful or disparaging or unfriendly. As I find
below that Cindi Ramelb’s testimony should not be credited in any
respect, I further find that her perceptions regarding stinkeye, an amor-
phous and vague term to begin with, are similarly untrustworthy.
plained to Hunter about having been sexually harassed by many
of these same individuals, infra, but not by either Fronda or Leo
Ramelb. Hunter deemed all these things to be a part of his
investigation and, insofar as the record shows, took it upon
himself to generally resolve3 and investigate4 a multitude of
matters raised by Cindi rather than limit his investigation to the
two issues presented to him by the Respondent. It was perhaps
as a result of the time constraints imposed by a predetermined
1-day investigation that, as found herein, he simply did not
elicit from Fronda and Leo Ramelb the salient facts that would
have been invaluable to a reasoned analysis of the two matters
presented to him.
First, regarding Leo Remelb, Hunter determined in his Au-
gust 4, 1999, “Confidential Report of Fact Finder” that:

Consistent with The Company’s policy on progressive disci-
pline,5 Mr. Leo Ramelb should be issued a verbal warning
concerning his unprofessional behavior toward his coworker
Ms. Cindi Ramelb.6 Mr. Ramelb should also be counseled by
both the on-site and corporate Human Resource Managers
that his unilateral decision to not speak and ignore Ms.
Ramelb as a means of dealing with his anger toward his
brother is not appropriate and does not comport with the
Company’s expectations of its employees as described in Sec-
tion 104 Business Ethics and Conduct of the Signature Re-
3 In his “Confidential Report of Fact Finder” he finds, in effect, un-
der the heading of “Specific Findings of Fact Finder,” a pervasive and
systemic hostile work environment, and under the heading “Non-
Binding Recommendations of the Fact Finder,” recommends “That the
entire bell valet staff should be required to attend and complete another
Discrimination and Sexual Harassment Training sponsored by The
Company. I further recommend that the training be conducted by a
private outside agency (not affiliated with The Company) and that the
training occur off of the Hotel property.” And, similarly, he recom-
mends ‘That the entire bell valet staff should be required to attend a full
day ‘partnering’ type retreat during which communication, teambuild-
ing and problem-solving skills are honed and in which ethnic/cult-
ural/gender diversity awareness is further developed. I also recommend
that this retreat be conducted by a private outside agency and held off
of the Hotel property.”
4 In his same confidential report, at fn. 4, he states: “Ms. Remelb in-
dicated that she recalls that the following employees engaged in some
form of inappropriate conduct: Mr. Stacey Kahue, Mr. Kimo Paishon,
Mr. Robbie Fronda, Mr. George Balagso, Mr. Jeremy De Los Reyes,
Mr. Lance Young, Mr. Charley Rapolo, and Mr. Bobby Craddick. She
also made it clear that, other than the complaints that are the subject of
this investigation, she was not pursuing complaints against these indi-
viduals at this time.”
5 Hunter states in his report that he had “thoroughly reviewed” the
Respondent’s personnel records of three individuals who had been
previously terminated, including the personnel records of Stacey Ka-
hue, and concluded that “[t]he Company went the extra mile to give
each of these employees every opportunity to turn things around before
termination.” Further, under the heading of “Specific Findings of Fact
Finder” he finds that, “[t]he Company has been flexible and lenient in
its dealings with employees who were or are the subject of disciplinary
procedures. In some instances The Company has bent over backwards
to give troubled employees a chance to cure their problems.”
6 In fact, the Respondent disregarded Hunter’s recommendation and
gave Leo Ramelb a 5-day suspension, infra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
sorts Policies and Procedures for Team Members booklet.
[Emphasis added.]

Thus Hunter did not know what, I find, infra, both Human Re-
sources Director Delos Santos and Bell/Valet Manager Reyes
knew very well, namely, that for over a year Leo Ramelb had
spoken to Cindi Ramelb only on a professional basis as neces-
sary, and engaged in no casual workday conversation with her
whatsoever when their shifts overlapped, because of the serious
family dispute and threats from Cindi’s husband, infra; and
moreover, that Delos Santos had put her imprimatur on this
arrangement in order to avoid on-the-job conflict and argu-
ments between the two and had even praised Leo for handling
the situation so maturely. Clearly, contrary to Hunter’s finding,
the structured “professional-only” relationship between Leo
and Cindi may not be fairly characterized as a “unilateral deci-
sion” by Leo Ramelb.
Secondly, regarding Fronda, Hunter’s report shows that he
gleaned from Delos Santos’ July 15, 1999 memorandum of her
meeting with Fronda, but not from Hunter’s investigative inter-
view with Fronda, that a guest who had observed Cindi and
Fronda having a verbal exchange said to Fronda, “Don’t hit
her.”7 Relying solely upon this information, Hunter reasoned
that:

In the face of conflicting accounts of an event like this,
a person in search of the truth must look for other sources
of confirmation, validation and credibility. The fact that a
guest who was presumably unaware of the context of the
Fronda/Ramelb discussion would be concerned enough to
make such a comment is compelling evidence of the tone
and tenor of Mr. Fronda’s words. This is particularly so
since it was Mr. Fronda himself who recalls hearing the
guest’s admonition. Furthermore, since Ms. Ramelb had
been subjected to other hostile treatment by coworkers but
believed this particular statement to be a threat worthy of
reporting to management and somehow different than
other statements is also telling. [Emphasis added.]
While perhaps Mr. Fronda did not intend to threaten
Ms. Ramelb with the statement he made,8 the net effect of
his conduct is that it was perceived by at least two other
people (Ms. Ramelb and the guest) as threatening in na-
ture. [Emphasis added.]

Thus, Hunter apparently believed that the guest was truly “con-
cerned” that Fronda was about to hit Cindi and had “admon-

7 Fronda testified that during his interview with Hunter he was not
asked anything about the guest’s comment, and did not relate the sce-
nario to Hunter as he believed that Hunter had been advised by Delos
Santos that the guest was only joking.
8 Hunter’s notes of his interview with Manager Reyes state that
Reyes believed Cindi was being “overly sensitive” about Fronda com-
ing up to the desk and that, “maybe she is that time of the month”; that
“Robby does get emotional and visibly upset. Robby probably did not
try to threaten her”; that, on the following day Cindi told Reyes that she
was mad and did not want to talk to him (Reyes), and speculated to
Hunter that Cindi perhaps felt that Reyes had “disregarded her”; that he
told Cindi “that nothing is going to change unless you are ready for it to
change”; and that on July 14 Delos Santos “was brought in—she
[Cindi] was invited to make a complaint.” (Emphasis added.)
ished” Fronda not to do it. Hunter did not know what both
Delos Santos and Reyes clearly knew, namely, that Fronda had
told them that the guest was not serious and was laughing and
joking when he said, “Don’t hit her.”
Hunter, after making the foregoing findings, recommended
that “[c]onsistent with The Company’s policy on progressive
discipline,9 Mr. Robbie Fronda’s indefinite suspension should
be reduced to a five day suspension without pay and, further,
that Mr. Fronda be issued a written warning that further viola-
tions of The Company’s policies on appropriate conduct will
result in termination.”
The Respondent, however, disregarded Hunter’s recommen-
dations by terminating Fronda and giving Leo Ramelb a 5-day
suspension. Delos Santos testified that the Respondent had no
problem with adopting Hunter’s recommendations in full, and
fully intended to do so, but then changed its mind after consult-
ing Cindi. Thus, on August 16, 1999, Delos Santos met with
Cindi to advise her of Hunter’s findings and recommendations.
Cindi, according to Delos Santos, interjected and said that she
did not want Fronda to come back to work because she felt he
was a threat to her and she was “not comfortable” with Fronda
coming back. She also stated, according to Delos Santos’
memorandum of the meeting, that “Leo’s looks has not changed
since this incident started,” and went on to complain that she
was “the victim” and that, “[t]he friendly faces that used to say
good morning, well, not anymore . . . they will all stick together
no matter what. I’m uncomfortable when I come to work.”
After conferring with Corporate HR Manager Field and Re-
spondent’s attorney, Delos Santos then called Cindi back that
same afternoon and asked if she “could give me a statement in
writing of how she feels regarding the recommendation the third
party investigator has given.” Delos Santos testified that she
typed out the following statement, in Cindi’s words:

I Cindi Ramelb, do not feel comfortable with Robbie
Fronda returning to work. I do feel threaten [sic] by Rob-
bie. I do feel he is a physical threat towards me. I do feel
that if he returns, it will all start up again like it never
stopped.
Even if the company sends him to Anger Management
Class, Sexual Harassment Class this will not help him. He
has had many opportunities to change and he never did.
I do feel I am the victim here. I’m uncomfortable but,
I’m not leaving . . . Cindi will be here.

There is no reference in the statement that Cindi was not com-
fortable with Leo, or that she believed that Leo should be given
a disciplinary suspension.
Next, having obtained this statement from Cindi, Delos San-
tos phoned Hunter and asked him to contact Cindi about the
matter. On August 23, 1999, Hunter issued a one-page docu-
ment entitled “Supplemental Report of Fact-Finder,” as fol-
lows:

Dear Ms. Delos Santos:

This will confirm that, at your request, following the
issuance of my Fact-Finding Report, I had a telephone dis-
9 See fn. 5 above.
EMBASSY VACATION RESORTS 857
cussion with Ms. Cindi Ramelb regarding her concern that
she still feels threatened by Mr. Fronda’s presence in the
work place.
During our telephone discussion, I suggested that Ms.
Ramelb consider the possibility of reserving her judgment
on Mr. Fronda in order to allow the Employer an opportu-
nity to implement the Fact-Finder’s recommendations
and/or any other actions the Employer might determine
appropriate. While still somewhat uneasy, Ms. Ramelb
expressed a willingness to allow a reasonable period of
time (2–4 weeks was discussed) to permit the Employer to
take its action(s) and to assess whether such action(s), in
her view, have brought about any changes in Mr. Fronda’s
behavior. Ms. Ramelb also requested that the Employer
take whatever steps might be necessary to coordinate the
bell valet schedule such that Ms. Ramelb and Mr. Fronda
are not scheduled together on any shift.
Please do not hesitate to contact me directly should
you have any questions.

Delos Santos testified that she did speak with Cindi on August
23, 1999, after Cindi’s conversation with Hunter. However,
she does not recall whether her conversation with Cindi was
before or after she had received Hunter’s supplemental report.10
During this conversation Cindi told her that she still feared for
her safety. Delos Santos did not contact Hunter after that, as
Hunter had suggested in his supplemental report. Rather, be-
cause of Cindi’s continuing concern, and particularly recalling
the emotional state of Cindi when she first complained on July
14, 1999, Delos Santos ignored Hunter’s supplemental report
and immediately terminated Fronda on that day.
Regarding Leo Ramelb, the record is clear, abundant record
evidence shows, it is not denied by the Respondent, and I find,
that since about June 1998, Leo had been given permission by
Delos Santos, Manager Reyes, and former manager, Kimo
Paishon, to simply not speak to Cindi and to avoid any non-
work-related interaction with her whatsoever because of a par-
ticularly serious family matter. Briefly stated, Cindi’s husband,
Manny Ramelb, who was Leo’s brother, had threatened Leo’s
wife and children with serious physical harm, the police were
called, and a temporary restraining order against Manny ex-
tending for a year was issued by a local court. Leo, believing
that Cindi was letting such matters interfere with their relation-
ship at work, and not wanting the matter to affect his job, re-
quested and received permission to not have to socialize or
communicate with Cindi on the job unless required by their
duties in assisting guests and parking cars.
Regarding Robbie Fronda, Delos Santos called him to her of-
fice at the end of his shift on July 15, 1999, and summarily
suspended him. Manager Reyes was also present. Delos San-
tos’ memorandum of the meeting begins as follows:

10 Hunter’s supplemental report is dated August 23, 1999, and is
headed **VIA FACSIMILE,** however, the date stamp of the fax
machine on the top of the page bears the date September 16, 1999,
while the date stamp of the Respondent shows that it was received on
September 7, 1999. The Respondent has not clarified this matter and I
find that Delos Santos had this supplemental report on August 23.
As Robbie sat down he asked, what did I do now? I
stated, this is serious, there has been a complaint of threat
by you to Cindi on Tuesday, July 13th, that in a threaten-
ing way and a threatening look you told her “You don’t
want to get me mad.” She took [sic] as a threat to her.
Therefore, I am suspending you pending investigation,
which may result in termination of employment. I will not
conduct the investigation, we are having a third party in-
vestigate the complaint.
I asked Robbie what was said to lead up to this point?
He stated, Cindi don’t get me mad, what did I do to you. I
did not threaten her.

Fronda, according to Delos Santos’ memorandum, went on to
explain to her and Reyes what had happened on July 13, as fol-
lows: He approached the bell desk because he overheard Cindi
speaking with Reyes regarding Fronda’s schedule. Cindi re-
marked that her conversation with Reyes did not concern him. He
responded that if it was private they could go to Reyes’ office and
talk. Cindi told him to “shut up.” Reyes then spoke up and said,
“[T]o let it go. Stop it, let it go. Robbie don’t push it.” A short
time later Fronda said to Cindi, “Don’t get me mad, what did I do
to you?” A guest apparently overheard this remark and said,
“Don’t hit her.” Fronda then walked back to where Reyes was
standing and asked what was wrong with Cindi. Reyes told him
“to stop it, let it go. I mentioned to you about negativity and
being positive.11 Cindi seems to be sensitive.”
Upon hearing Fronda’s account of the incident, Delos Santos
asked him why a guest would make such a comment if it wasn’t
made in a threatening way. Fronda, according to Delos Santos’
memorandum, simply replied that he didn’t know but that he
did not threaten Cindi.
Delos Santos testified that she customarily would consult
Reyes regarding employees’ complaints. Thus, she testified
that “if there’s situations that also occur, I do speak to Nef
Reyes about it and for him to, you know, approach the situa-
tion. If, you know, comments were brought to my office re-
garding the bell desk department, I would have him handle the
situation.” Asked whether prior to making the decision to sus-
pend Fronda she consulted with Reyes, Delos Santos answered,
“We discussed this with counsel and Julie Field and we felt that
that was the best action to take.” Asked again what Reyes said,
Delos Santos replied, “I’m not exactly sure what exactly he
said.” Asked whether or not it was true that in fact Reyes told
her that he did not believe Fronda should be suspended, Delos
Santos replied, “He may or may not.” Moreover, she testified
that she was unable to recall whether or not she spoke with
Reyes at all regarding the matter.12
11 Reyes was apparently referring to the annual review he had re-
cently given Fronda, infra.
12 At this point in the hearing Respondent’s counsel stated that
Reyes, who had left the Respondent’s employ and was working on the
mainland, had been contacted and would be a witness on behalf of the
Respondent in this proceeding. Later during the hearing it was repre-
sented that in fact Reyes would not be called as a witness because his
current employer would not pay his salary during his absence from
work and therefore he was unwilling to voluntarily appear. Reyes did
not testify in this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 858
Leo Ramelb was hired on July 20, 1998. He had an excel-
lent work record. On July 13, 1999, the day prior to Cindi’s
harassment complaint against him, Leo was given the results of
his annual performance appraisal by Reyes. The Respondent’s
“Performance Appraisal” is a lengthy 10-page document with a
rating system from 1 to 5 in each of 20 categories. Leo’s over-
all score was 3.25 which was between 3 (satisfactory perform-
ance) and 4 (highly satisfactory—performance exceeds re-
quirements), and at the conclusion of the document Reyes en-
tered the notation that Leo was a “Very good employee.”
Leo Ramelb testified that he became involved in the Union’s
organizing activity in about April 1999, when he was asked by
Fronda to help solicit union authorization cards in the
bell/valet, housekeeping, and maintenance departments. After
getting the cards signed he returned them to bell/valet employee
Bobbie Craddick. He and other bell/valet employees would
discuss the Union openly at work, and he and the others had a
particular hand signal, making an “L” with the fingers of their
right hand and holding up all five fingers of their left hand to
designate “Local 5”; this hand signal, which had been ex-
plained to Reyes, was widely and openly used as a sign of un-
ion solidarity. On September 8, shortly after his return from his
5-day suspension, the Union sent a letter to the Respondent
advising that the “Union organizing committee includes, but is
not limited to, Mr. Leo Ramelb, Ms. Noreen Medeiros, Mr.
Robert Craddick, and Mr. Robbie C. Fronda.”
Leo Ramelb testified that Reyes was aware that he was a un-
ion supporter. Hunter’s report includes the statement that “it
was related to me that Ms. Remelb [Cindi] was actively op-
posed to the union’s organization efforts while various of her
coworkers are active supporters of the unionization efforts.”
This information was given to Hunter by Manager Reyes, who,
according to Hunter’s notes of his interview with Reyes, was
told by Reyes that Cindi was “vocal nonunion,” and that “[t]he
others are prounion.”13
Leo Ramelb testified that from the time Cindi had been hired
in 1990 up until May 1998, his relationship with her was very
congenial and they would joke around at work. When the situa-
tion with Manny began he stopped engaging in social conversa-
tion with Cindi at work because he didn’t want to provoke any
arguments between them and did not want to become upset with
her and perhaps lose his job over the matter. Cindi complained to
Delos Santos about this, and after that Leo was called to her of-
fice. He explained the situation to Delos Santos, told her about
the threats and the TRO (which had been issued by the court and
was to remain effective for a 1-year period) and his reasons for
not talking to Cindi, namely that he believed this was the best
way to deal with the situation so “I wouldn’t provoke anything
between Cindi and I.” Delos Santos replied, according to Leo,
“Oh, that’s good. I’m glad that you went that way—to not talk to
her, so that way, you won’t provoke anything.” And she also
said that, “I don’t see, you know, anything wrong with that.
There’s no law saying that you don’t—have to talk to your co-
worker as long as you do your job.” Delos Santos told him that

13 However, Hunter went on to say that there was simply not enough
evidence to support a finding that the conduct of either Cindi or Leo or
Fronda was motivated by their union sentiments.
she was going to inform Cindi of their conversation and advise
her “that that’s the way I was going to be dealing with the whole
situation at work.”
From the foregoing exchange it was understood by Leo that
the Respondent appreciated his predicament and had given him
permission to interact with Cindi only on a professional, work-
related level. Leo testified that after his discussion with Delos
Santos he felt very confident that he could go to work the next
day knowing that he did not have to talk with Cindi or have any
interaction with her except with regard to work-related matters.
Further, according to Leo, Bell/Valet Manager Paishon, who
preceded Reyes as manager, understood that this was the way
the matter had been resolved and he, too, approved of the ar-
rangement. Later, after Reyes became manager, Cindi com-
plained to Reyes about the matter. Leo then explained the situa-
tion to Reyes and told him that Delos Santos knew all about it.
When Leo told Reyes how he was handling the situation by not
speaking to Cindi except on a professional basis, Reyes said, “I
don’t think there’s any problem with that. I guess the main
thing is you do what you got to do at your job.”
Leo Ramelb asked Reyes and Delos Santos how they wanted
him to act toward Cindi when he returned from his 5-day sus-
pension. Reyes replied, according to Leo’s testimony, “As pro-
fessionally as you can be.” Leo replied that that is what he had
been doing all along.
Leo Ramelb testified that he was worried about returning to
work after his suspension because he anticipated further charges
by Cindi and did not want to be terminated as Fronda had been
the day before. He had not been given any specific instruction
about how he was expected to act toward her; and, knowing that
because of their overlapping shift schedule he and Cindi would
be the only two bell/valet employees on duty for a 1-hour period
until the next employee arrived, he was apprehensive of being
alone with her as this would give her the opportunity to make
false charges that he could not disprove with witnesses. There-
fore, he did not return to work on the designated day but rather
called in sick because he “felt stressed out to go back to work and
was worried because I wasn’t given any advice on how to pre-
pare myself to go back to work and dealing with the whole situa-
tion and Cindi.” He returned to work on September 1, 1999,
when other employees were present. As he had anticipated, he
learned from bell/valet employee Edgar Inez that Cindi had gone
to Delos Santos that day to complain about the continuing hostile
environment, but that Reyes had told Inez, that “it wasn’t a hos-
tile environment at this time.”14
In the absence of any instructions by Reyes, Leo Ramelb had
decided to be particularly attentive to Cindi’s needs in dealing
with guests. Prior to that time he would assist Cindi “if neces-
sary” and she would assist him “if necessary” in helping to load
or unload luggage from guests’ vehicles or in opening car doors
for guests.15 Upon his return he made a special effort to assist
Cindi in servicing the needs of her guests, and, according to
14 No objection was made by counsel to this clearly hearsay testi-
mony.
15 There is no record evidence that this was ever a problem with ei-
ther Cindi or Reyes or that it was a part of Cindi’s complaints or
Hunter’s investigation.
EMBASSY VACATION RESORTS 859
Leo, Cindi seemed to reciprocate in kind, but, insofar as the
record shows, he continued to avoid her and did not communi-
cate with her on a casual basis. There were no complaints by
management between that time and the time Cindi left the Re-
spondent’s employ as a result of emotional problems, infra.
Robbie Fronda began working for the Respondent on De-
cember 5, 1988, the day the hotel first opened. The Respondent
admits that he was an “exemplary” employee. His annual per-
formance appraisal, given to him by Reyes on July 7, 1999, just
1 week prior to his indefinite suspension/termination, rates him
as 3.97 overall (4 being “Highly Satisfactory—Performance
Exceeds Requirements”) on a 5-point scale, and included
within this score is a rating of 4 under the “Attitude” section of
the appraisal and a rating of 4.5 under the “Personal Character-
istics” section. Prior to the incident involved herein there have
been no complaints against him by anyone, and no warnings of
any kind except for a single verbal warning for failing to punch
the timeclock.
Fronda testified that he was born in the Philippines. His first
language is the Filipino Ilocano dialect, and English is his second
language.16 He is the individual who initially contacted the Un-
ion and has been actively and conspicuously involved with the
Union since that time. After the first election it was anticipated
that there would be a second election and the union campaign
continued in order to sign up more people and prepare for a sec-
ond election. Fronda testified that Leo Ramelb became an active
union adherent in April 1998, and thereafter solicited authoriza-
tion cards from employees, and that the bell/valet employees,
including Leo Ramelb, would talk about the Union every day.
Sometime after the first election, Housekeeping Assistant Man-
ager Adele Strahan called him aside and whispered to him to,
“Watch out. Somebody is watching you. Watch yourself.” He
was asked by Reyes and Assistant Bell/Valet Manager Mika
Kaleikini to join the “Awesome Committee,” a committee of
managers and employees that would apparently plan parties and
picnics and perhaps would discuss other employer-employee
matters, but he declined the invitation, advising them that he did
not want to join because of his involvement with the Union.
Fronda testified that on July 13, 1999, he saw Cindi Ramelb
talking to Reyes behind the bell desk. He was standing nearby,
within a few feet, and observed that Cindi, who was holding a
shift schedule in her hand, asked Reyes what was the point of
having a 9 a.m. to 5 p.m. shift. That particular shift was
Fronda’s shift and he remarked, “Hey, that’s my schedule.”
Cindi turned around and said, “This doesn’t concern you,” and
she then again asked Reyes why there should be a 9 a.m. to 5
p.m. shift. Reyes, who was not taking the matter seriously, teas-
ingly told Cindi, “I make the schedule because I like Robbie.”
This did not set well with Cindi who apparently took Reyes’
remark seriously, and she replied something to the effect that
she didn’t know there was favoritism at the hotel. Then she
asked Fronda why he didn’t work the 5 a.m. to 1 p.m. shift.

16 There were many Filipino-Ilocano speaking employees at the hotel
and the Respondent distributed campaign materials in this language.
The Respondent’s policy permitted employees to speak any language to
each other while engaged in casual conversation, but they were re-
quired to speak English in front of guests.
Fronda said that he didn’t want that shift and walked away to
assist a guest. About 5 minutes later he returned to the bell desk
area to put away the guest’s car keys, and Cindi continued, “I
don’t do that to you. I don’t listen to manager’s conversations.”
Fronda kept silent and Reyes, who was standing nearby, told
them both to “Stop it. Stop it already. Let it go.” Then Fronda
walked away while Reyes was still talking with Cindi. At this
time two vans came to the front entrance and stopped in close
proximity to each other. Cindi began assisting the guest in the
first van, and Fronda, while walking past Cindi as he was
headed toward the second van, suggested that if she didn’t want
people listening to her conversations she should go downstairs
and talk privately in Reyes’ office. She replied, “Yeah, yeah,
yeah. Just shut up.” He looked at her and, with arms out-
stretched and his palms up in a questioning or shrugging gesture,
asked, “What did I do to you?” Cindi didn’t reply and then he
said, “Cindi, don’t make me mad.” At about that time he
opened the door of the second van. The guest exited and, ac-
cording to Fronda, in a “smiling and laughing and teasing man-
ner,” said, “Don’t hit her. Don’t hit her.”
Fronda testified that the incident occurred between about 11
and 11:30 a.m. that day, July 13, 1999, and that that he worked
with Cindi until 1 p.m. when her shift ended. On the following
day, July 14, their shifts overlapped for 4 hours. On the next day,
July 15, Cindi was scheduled to be off but volunteered to come in
that day to substitute as bell clerk for another bell/valet em-
ployee, and their shifts again overlapped for 4 hours. Fronda
testified that Cindi was very nice during the remainder of the
shift on July 13 and, during the next 2 days when they worked
together, that no further words were exchanged and that his inter-
action with Cindi as bell clerk on July 15 was amicable. It was
not until he got off work on July 15 that he was accompanied to
Delos Santos’ office and suspended, as noted above.
Fronda testified that during his July 15 meeting with Delos
Santos and Reyes, after first being told of his indefinite suspen-
sion pending termination, he was given only a brief time to
explain what had happened, and, upon volunteering the infor-
mation about what the guest had said, clarified this by specifi-
cally stating that the guest was not serious but was laughing and
joking. He denied that he threatened Cindi. He signed the sus-
pension notice with the words, “I did not threatened [sic] her.”
Prior to this meeting neither Reyes nor Delos Santos had told
him that there had been any complaint by Cindi.
Fronda further testified that during the 2 weeks between his
suspension and the interview with Hunter he couldn’t eat or
sleep because of the stressful situation, but during the interview
he tried his best to explain what had happened. Regarding the
comment made by the guest, Fronda testified, “[H]e [Hunter]
didn’t ask me that so I didn’t tell him that . . . I thought he knew
already.” Thus, Fronda believed that Hunter was already aware
of the fact that the guest’s statement had been made in jest, as
he had previously related this to Delos Santos. Hunter then
asked him questions about other people.
Delos Santos phoned him on Friday, August 20, 1999, and
told him to come in the following Monday, August 23, 1999.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 860
Fronda met with Delos Santos and Reyes on that date.17 She
handed him the termination letter, and said that because of the
guest’s comment he was being terminated. That was the first
time he had been made aware that the guest’s comment was
deemed to be of any particular significance, and he stressed to
Delos Santos that the guest was smiling when he made the
statement and was only joking. She repeated that he was being
terminated because of the guest’s comment. Reyes did not say
anything.
It seems very apparent why the guest was joking and smiling.
Fronda is a very slight individual, perhaps 5 feet 6-inches tall
and weighing about 135 pounds. Cindi, on the other hand, is
conspicuously taller and larger. The record is replete with
comments by witnesses, counsel, and me regarding Fronda’s
size, particularly when compared to Cindi. Fronda testified that
even Cindi commented to him, when they were unloading bags
together, that he was skinny and she was stronger than he was.
On another occasion he joked with her that he took a tybo class
and was strong now. Former manager Paishon testified that he
heard Cindi call him, “You skinny little so and so . . . only 98
pounds soaking wet.” Paishon testified further that Fronda
weighed less than anyone in the department and that Cindi “was
kind of domineering over him.” And Bobby Craddick, another
bell/valet employee testified that because “Robbie is kind of a
small guy,” he would assist Fronda with carrying bags. And
Hunter testified that Craddick told him, “If you know Robbie . . .
he’s not a large guy, kind of a meek fellow.” Thus, it is clear
that the juxtaposition of Fronda and Cindi in close proximity at
the time when they were obviously engaged in a verbal ex-
change would cause a bystander to find the matter somewhat
humorous, and, under the circumstances, it is obvious that the
remark made by the guest was in fact a sarcastic reference to
Fronda’s comparative size rather than an expression of concern
in the form of an admonition.
Fronda very favorably impressed me as a candid, credible,
straightforward witness, as well as an individual who appeared
to be singularly gentle, polite, and deferential. Nor did the
Respondent attempt to show that his witness-stand demeanor
was different than his at-work personality. Given his demeanor
and slight physique, without more, I find that no reasonable
person could generally view him as “threatening” in any re-
spect.
3. Suspension and discharge of Bobby Craddick,
Kevin Freitas, and George Balagso
Cindi Ramelb had never before complained to the Respondent
about sexual harassment18 until the Respondent received a letter

17 Prior to his meeting with Hunter and prior to this meeting with
Delos Santos he had asked Delos Santos if he could bring a witness and
Delos Santo said no. This should be contrasted with Delos Santos’
practice of permitting other employees to bring witnesses to discipli-
nary interviews whenever they requested to do, as shown by documen-
tary evidence.
18 In Hunter’s initial report he credits Cindi Ramelb’s assertions that
she has complained about sexual harassment over the years, but, ac-
knowledging that there is no record of this, concludes that the lack of
documentation is due to poor recordkeeping or management. In fact,
the record evidence herein shows, and I find, that Cindi made no such
complaints over the years.
dated September 28, 1999, from an attorney representing her.
The attorney states that he had been furnished and had reviewed
Hunter’s report, “which confirms that Ms. Ramelb has been sub-
jected to sexual harassment as a result of a long-standing hostile
work environment that continues to the present day,” and advises
that Ramelb will seek all remedies available to her absent a mu-
tually acceptable resolution of her claims. The letter references an
attachment “Exhibit A,” that sets forth “specific examples of the
continuing hostile work environment.” Exhibit A lists four dis-
tinct and separate instances of alleged sexual harassment toward
Cindi by three bell/valet employees, namely, George Balagso,
Kevin Freitas, and Bobby Craddick that had occurred on various
specified days in August 1999.
None of the alleged incidents involved any physical touching
of Cindi; rather, it was alleged that the employees made certain
sexual remarks that were not welcomed or appreciated by
Cindi. Thus, a guest was standing naked in the window of his
hotel room, and a remark was made to Cindi, “Look Cindi, he
is bending over and showing us his ass . . . he has more hair on
his ass than I do”; and another employee said, referring to a
woman passing by, “God Cindi, I wish I could slam her right
here behind the desk”; and on another occasion an employee
told her, after she asked what was being served that day in the
cafeteria, that the cafeteria food was no good, “But, I have
something good for you to eat”; and finally, as a guest was
getting out of her car, an employee made the statement, “Wow,
do you think those tits are real . . . I don’t think she is wearing
any underwear.”
On October 4, 1999, some 5 or 6 days after receiving this let-
ter, and again after consulting with Field and the Respondent’s
attorney, Delos Santos placed the three employees on suspen-
sion pending termination. Further, it was decided to handle the
matter by again hiring Hunter to conduct a third-party investi-
gation of these allegations, particularly because of Craddick’s
known involvement with the Union as an active union adherent
and a member of the Union’s organizing committee. However,
this time Hunter was authorized to issue a fact-finders report
only, specifically without recommendations, because, accord-
ing to Delos Santos, the first report “kind of blew up in our face
because of Cindi. She was not in agreement with what we were
going to do.”19
Hunter investigated the matter in 1 day, October 12, 1999,
and issued his 18-page “Confidential Report of Fact-Finder” on
October 19, 1999, in which he summarized and specifically
“incorporated by reference and made a part” his earlier August
4, 1999 report.20 He determined that the four aforementioned
19 Hunter may have been told, as he sets forth at fn. 3 of his report,
that he and the Respondent agreed that “due to the time-sensitive nature
of this proceeding . . . no recommendations would be issued with the
fact-finding report,” but the real reason, it seems, is the Respondent’s
concern that Hunter, who had already demonstrated his understanding
of the Respondent’s progressive disciplinary policy, would not have
recommended the termination of the employees.
20 It is significant that in fn. 2, Hunter summarizes the conclusions
regarding Leo Ramelb that he made in his first report, as follows: “It
should be noted that the findings concerning Mr. Ramelb’s conduct
related to ‘silent hostility’ toward his sister-in-law. No specific finding
of sexual harassment by Mr. Ramelb was made.”
EMBASSY VACATION RESORTS 861
incidents did occur; that a hostile work environment including
sexually explicit language and unwelcome and offensive com-
ments of a sexual nature “continues to exist”; and that the
“bell/valet department is a highly tense and stressful work envi-
ronment particularly for Ms. Ramelb. Ms. Ramelb’s earlier
complaint of feeling like an outcast in the bell valet department
is well founded and reasonably supported by the evidence.”
Rather than issuing any recommendations, he concluded his
report by stating that “the complainant, the respondents, the
Human Resource Manager, and all of the witnesses in this proc-
ess were courteous and cooperative. I sincerely hope that a
satisfactory resolution of the situation that exists in the bell valet
department at EVR will be realized in the very near future.”
As a result of this report, Balagso, Frietas, and Craddick
were terminated. All were sent identical letters signed by Delos
Santos, dated December 2, 1999 (or, in the case of Frietas, De-
cember 13,1999), stating that:

Embassy Vacation Resort-Kaanapali (the “Company”)
is in receipt of the findings of the third party investigator,
Mr. Keith Hunter of Dispute Prevention and Resolution,
Inc., which was prepared subsequent to this investigation
of Ms. Cindi Ramelb’s complaint that you had engaged in
sexual harassment.
According to the [Hunter’s] report, there is credible
evidence that you were made well aware of Company’s
policy, warned once again since the last incident in July
1999, yet despite this, you made sexually explicit com-
ments to and in the presence of Ms. Remelb of the
Bell/Valet Department. Your actions were therefore will-
ful and deliberate disregard of the Company’s policy.
Based upon the above findings, you have violated
Company’s policy and due to the severity of conduct in-
volved, and consistent with the Company’s policies and
past practices, the Company hereby notifies you that you
are being terminated from your employment with the
Company.

While confirming, disputing, or explaining the particular re-
marks attributed to them by Cindi, both Balagso and Craddick
generally admitted to Hunter that they have engaged in such or
similar conversation with Cindi from time-to-time as they do
with other employees, that they were friendly with her and she
was treated as one of them, that sometimes she reciprocated in
kind with similar remarks of her own,21 and that after working
together for over 8 years “she was not viewed by her coworkers
as a girl and is considered to be just one of the guys and is
treated accordingly.” Further, Craddick told Hunter and testified
herein that the atmosphere and stress level created by Cindi in
the bell/valet department became uncomfortable for the other
employees because of Cindi’s earlier unfounded complaints
against Fronda and Leo; thus, the employees who had to work
with Cindi believed that they were being subjected to a hostile
work environment because they had to be so guarded and appre-
hensive around her for fear that she would complain to man-
agement about them for no reason at all. In fact, they would

21 Hunter’s report implies that Cindi told him that she did not engage
in such conversations, and finds them very offensive.
begin to proactively report incidents to Reyes in anticipation of
unfounded complaints by Cindi because they feared for their
jobs.
Hunter, stating in his report that he obtained this information
from Balagso, concluded that Cindi “frequently told ‘the boys’
to stop their crass language and crude behavior in her pres-
ence,” and further, “indicated that in recent times Ms. Ramelb
has been quite clear in letting her coworkers know that she
wouldn’t tolerate their unacceptable behavior.” I have carefully
attempted to discern this observation from Hunter’s notes of his
interview with Balagso and I do not find this information in his
notes; nor, during Hunter’s testimony, did he confirm that this
is what Balagso told him. Rather, Hunter’s notes reflect that
Balagso told him that he “does not recall [Cindi] objecting to
[the comments].” Further, although Hunter’s notes do state that
Balagso told him that Cindi had made comments about “fake
breasts” and talked about very “graphic and dramatic” sex in
front of him, Hunter does not mention this in his report. Ac-
cording to Hunter, Belagso, who was very remorseful and
apologetic, told Hunter that he had not realized that Cindi was
offended by statements he may have made to her.
Hunter states in his report that:

Ms. Ramelb reported that she was stunned when three of her
fellow employees were suspended from their jobs while she
was still at work and felt sick to her stomach about the whole
situation. On the day that they were suspended several other
employees (both bell valet employees as well as employees of
other departments) made comments about the suspension.
These comments added to her stress and fear and, as a result,
she went home from work early that day.

George Balagso has worked for the hotel since it opened in
December 1988. He was given his most recent appraisal by
Reyes on July 15, 1999, receiving a score of 4.12 on a 5-point
scale, and Reyes wrote that, “George is a great employee. Un-
derstands the importance of a team effort.” He had only one
prior verbal warning for a timecard infraction.
Belagso testified that he had a very good working relation-
ship with Cindi, and that their shifts overlapped about 15 hours
each week. Belagso considered himself to be one of her closest
friends, and they talked about personal and private family mat-
ters that only trusting friends talk about. Sometimes their cas-
ual conversations would include banter of a sexual nature. For
example, on one occasion Cindi was scheduled to leave work at
1 p.m. and mentioned in a “very dramatic and graphic” way
about how her husband begs her to have a “quickie.” She also
told him that one of the waitresses in the bar had a “boob job”
and, on another occasion, referring to another employee, said
that, “[t]hose breasts are fake.” In front of other employees,
including Belagso, she said, “You Filipinos have small ones,”
clearly an ethic and sexual reference. She related to him that
another bell/valet employee had told her that, “[o]h, that lady
looks mighty fine and I wouldn’t mind doing her.” On one
occasion she said that women wear tight jeans because “it turns
them on.”
Balagso testified that he related to Hunter some of these
things that Cindi had said to him. Significantly, he did not tell
Hunter that Cindi frequently let the employees know that she
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 862
would not tolerate such language and behavior from them.
Balagso did testify, however, that on about two occasions dur-
ing the course of such conversations, Cindi told him to “stop
it.” This surprised him because of their long-term friendly rela-
tionship during which sexual references were commonplace
and mutual. He would stop on those occasions when she told
him to, but thought she was joking because of her propensity to
engage in similar conversations with him on subsequent occa-
sions without objection.
Belagso testified that the subject of sexual harassment or ad-
monitions to employees that they should not engage in any sort of
unwelcome behavior with Cindi did not come up in employee
meetings conducted by Reyes. He also testified that although he
was not an active union supporter, he was not opposed to the
Union. According to Respondent’s notes of the conversation
when, on October 5, 1999, he was called to the office and noti-
fied of his suspension, he asked, “[I]f this was a union issue, if so
he wants to let us know that he is pro hotel.”22
Freitas was hired in May 1998, by Delos Santos. He signed a
union card prior to each election, talked about the Union with
others at the bell/valet desk, and, in addition, testified on behalf
of the Union at the hearing on objections. He was given a per-
formance appraisal by Reyes on July 14, 1999, and received an
overall score of 3.44 on a 5-point scale. Upon giving him his
evaluation Reyes told him that he was doing good work and that
there would be a full-time position opening up soon for him.
His only warnings were for attendance. After being given notice
of his suspension he met with Delos Santos and denied that he
made the comments attributed to him by Cindi. Later he met
with Hunter and denied that he had said these things to Cindi.
And at the hearing herein he testified that he did not say these
things to Cindi.23 Thus, Freitas has consistently maintained that
Cindi’s accusation was absolutely false. Freitas testified that
shortly after Fronda had been suspended Reyes told all of the
bell/valet people on his shift to watch what they say around
Cindi and watch their swearing when Cindi is around.24
Freitas testified that he was hired as a part-time employee
and, having relatively little seniority, was given the afternoon
shifts. He would work with Cindi for perhaps 1 hour a day
when their shifts overlapped, and would generally not work
with Balagso, Fronda, Leo Ramelb, Craddick, or those employ-
ees who had the greatest seniority. He was not as friendly with
Cindi as some of the other longer-term employees, and he and
Cindi talked mostly about work-related matters. He told Hunter
that he heard Cindi refer to the breasts of another hotel em-
ployee and comment that they were not real.25 Freitas did not

22 I credit the testimony of Balagso in its entirety.
23 Hunter states in his report that this was the only offensive com-
ment she recalled Freitas ever making to her.
24 It is apparent from Freitas’ testimony that such statements by
Reyes were in no way intended to be official warnings that they should
refrain from engaging in sexual or other types of harassment toward
Cindi; rather, it appears that Reyes was merely giving them some
friendly, confidential advice based on his inside information and belief
that Cindi would not hesitate to complain to management about others
as she had complained about Fronda and Leo.
25 This information does not appear in either Hunter’s notes or re-
port.
make comments of a sexual nature even to the other male
bell/valet employees; they talked about fishing and diving and
golf and, on occasion, someone would perhaps comment about
the figure of an attractive woman who might be passing by.26
Robert Craddick was hired by the hotel in January 1989. He
is currently business agent/organizer for the Union. He was an
active union adherent and was on the Union’s organizing com-
mittee. On July 15, 1999, he was given an annual evaluation by
Reyes, and received a 2.72 rating on a 5-point scale, with the
statement, “Bobby does the technical side of work. But needs to
improve on the service side of his job to be successful.” How-
ever, the preceding year, on July 20, 1998, he was given an
annual appraisal by then-manager, Kimo Paishon, who rated
him 4.33 on a 5-point scale.
Craddick testified that he and Cindi became pretty close
friends. They discussed many things, and sometimes their con-
versations would turn to matters of a sexual nature. On one occa-
sion they discussed Craddick’s adult movie collection, including
which movies he had and which ones could be borrowed. Cindi
talked about sneaking in and out of the “Pussy Cat” theater in
California to see these movies when she was in high school. In
August 1999, he overheard her mention to another employee
about how her high school boyfriend had bought her a car so she
could get over to his house right away after school was out, but,
according to Craddick, “[I]t was a little more graphic than that.”
She seemed to have a problem with women having breast im-
plants, and would make observations about women who were
passing by from time-to-time. One time, after Craddick returned
to work from having a vasectomy, Cindi initiated the conversa-
tion by telling him she was hoping her husband would get one,
and they discussed the procedure at some length. According to
Craddick, Cindi never seemed offended when he would have
conversations of a sexual nature with her, and she never indicated
that she was offended or told him to stop it. On occasion, Cindi
would use profanity at work.
Craddick testified that the August 29, 1999 incident attrib-
uted to him by Cindi never occurred, but that something similar
did occur a few months before that: A guest was standing at his
window on the second floor drinking a cup of coffee. The
guest was nude and was just standing there watching the clouds
and the sunrise in a full frontal pose. Craddick reported this to
the front desk, as it was embarrassing for the guest and perhaps
for others. He did not know whether Cindi observed this or
not, although if she was there at the time she would have neces-
sarily observed this as it was in plain view of the bell desk.
Craddick denied to Delos Santos, to Hunter, and at the hearing
herein under oath that he made any comments to Cindi about
the matter whatsoever.
Craddick testified that there was tension in the bell/valet de-
partment even prior to the matters with Cindi, as the new man-
ager, Reyes, was making a lot of changes and was trying to
basically tighten things up. Other than that, everyone was cor-
dial to each other, and there were only the occasional argu-
ments over shifts and such things. After Fronda was sus-
26 I credit the testimony of Freitas in its entirety; I further find that
that Cindi simply fabricated the sexual harassment statement she attrib-
uted to him.
EMBASSY VACATION RESORTS 863
pended, however, “There was some tension. Nobody really
knew what to say or do with her. Everybody was a little nerv-
ous of the whole thing . . . they could have been in the same
boat [as Fronda]. There was no real clear direction given to us
on how to handle Cindi at that point.” Regarding this matter,
Craddick testified as follows:

The general idea I got from Nef [Reyes] was that we
needed to get Cindi back to a point where she felt comfort-
able at the desk, where everyone was treating her like a fel-
low employee. Because everything escalated, you know.
You suspend one of the people there and everybody is
looking at her and it’s getting tense . . . this incident made
the morale and things at the department worse instead of
better . . . everybody was afraid to talk to her, afraid—
didn’t know what to do with her.

Craddick related that about a month after Reyes was hired
Cindi went to him after an apparent argument about shift sched-
ules. Shortly thereafter, Reyes made the comment to Craddick,
in sort of a whispering mode at the front desk, “Watch what you
do and say to her. She writes everything down and isn’t afraid
to use it.” Craddick already knew this, namely that Cindi would
“utilize anything that she had once she got pissed off at you.”
Prior to October 4, 1999, neither Reyes nor Delos Santos nor
any other supervisor told him that Cindi had accused him of
sexual harassment or any other type of harassment toward Cindi
or anyone else. Nor, during the years that Craddick was a mem-
ber of the employee council, did Cindi ever make any com-
plaints to the council about sexual harassment.
Craddick testified that Reyes would watch the employees at
the bell desk by physically being present while they were work-
ing, and by going down to security and watching them on the
security camera. And, on occasion, he would position himself
in a vacant room up above the bell desk area and observe the
employees from there. Craddick knew this because Reyes once
came down and told the employees what he had observed while
watching them from the room.27
Craddick testified that during the departmental meetings
conducted by Reyes there was no discussion of sexual harass-
ment or use of profanity or anything of that nature. At one
meeting he recalled that Reyes reminded the employees of the
fraternization policy and that an employee had been told to
basically keep “his hands off the younger guests and stop offer-
ing them motorcycle rides.” Prior to June 16, 1999, the policy
had been that employees could speak their native language to
each other, but were required to speak English when guests
were around. According to Craddick, Reyes changed this pol-
icy on June 16, 1999, and stated that the employees at the
bell/valet desk were to speak only English.28

27 In this regard, I do not credit the testimony of Cindi Ramelb that
the other employees would be nice to her while Reyes was present but
would harass her when Reyes was not watching.
28 I credit the testimony of Craddick in its entirety; I further find that
he did not make the statement Cindi attributed to him about the naked
guest.
4. Testimony of Cindi Ramelb
Cindi Ramelb left the hotel on about October 4, 1999, upon
hearing that Craddick, Freitas, and Balagso had been suspended
as a result of her sexual harassment complaints. She testified
that she was shocked upon learning this, and that she had only
wanted them to receive sexual harassment training as Hunter
had suggested in his first report. She testified that Reyes told
her that he too was shocked when he learned that these employ-
ees had been suspended. It turns out that shortly thereafter,
because of emotional difficulties, she was put on administrative
leave and never returned to the Respondent’s employ. She
testified that apparently since July 1999, because of the situa-
tion at work, she had been seeing a professional for counseling
and that Reyes was aware of this as he had referred her to
someone.29
Cindi testified that she did not consider herself “one of the
boys,” that she did not take part in the joking that was ongoing
at work, that the limit of her bad language was the time she
recalled stubbing her toe and exclaiming, “Oh shit,” and that
she never participated in discussions of a sexual nature with
any of the other employees. She was “very uncomfortable”
with many things that were happening at work, and generally
described the workplace as “very uncomfortable . . . a sexual
abuse place, very uncomfortable place, not safe. . . . People
making comments to me, threatening comments to me, using
vulgar language.” She testified that employees made comments
about her body, and stared at her. She claims that she went to
the employee council to complain about such matters. She testi-
fied that she kept a diary for 4 years and “wrote down every-
thing that went on at the hotel,” and that she gave her lawyer
the diary and later discarded it.
Regarding Fronda, Cindi testified that she knew that he was
going to be “mad” after coming back from being suspended,
“and I just felt very uncomfortable after him being suspended
and I didn’t feel safe working with him.” She said that Fronda
was a threat to her, that he would say things to her, that he
would give her mean looks, that he is a very unpredictable per-
son, that “he would look at me and say things that would scare
me,” that he had taken a tybo class and told her, “You better
watch out, you know I’m strong now,”30 that he has a “split
personality,” that she was always afraid when “this group of
people would be working.”
Cindi testified at length in this proceeding during 1 full day.
A careful review of her testimony strongly indicates that she is
conflicted and troubled by many things, and although I am
unable to determine whether she is intentionally fabricating
misinformation, or merely is inherently incapable of discerning
fact from imagination, or is unable to articulate what she actu-
ally means, nevertheless her testimony is simply not credible,
perhaps through no fault of her own. She exhibited a very poor
recollection, spontaneously made up things, I find, that even the
Respondent had to contradict, frequently contradicted herself,
and was otherwise simply not believable. Accordingly, it
29 However, her testimony regarding seeking professional help is not
entirely clear.
30 Apparently she did not understand that Fronda was joking with
her.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 864
would serve no useful purpose here to summarize her confusing
and often contradictory testimony as I would not know what
part of her testimony is reliable and what part is not. Therefore,
I am hesitant to credit any of it except to the extent that it is
corroborated by documentary evidence or the credible testi-
mony of others.
Cindi testified that from “day one,” since she became em-
ployed, she has been subjected to “sexual harassment.” It was
not until the end of her testimony that she was asked to give her
definition of sexual harassment, and she seemed to believe that
in her mind any conduct of which she did not approve, whether
sexually oriented or not, constituted sexual harassment since
she was the only female in the department and all the others,
who may have done something she found objectionable, were
male.31 More importantly, Cindi testified that over the years
she has continually complained about sexual harassment to
management and to the “employee council,” a formalized
committee comprised of managers and employees that existed
prior to the time the Respondent hired Delos Santos as human
resources manager. Particularly, she said she brought these
matters to the attention of the employee council when employ-
ees Noreen Madeiros, and Bobby Craddick were members of
the council.32
With regard to one of her foregoing sexual harassment alle-
gations against Balagso, Cindi’s lawyer, apparently taking this
information from Cindi’s notebook or diary that she said she
had been keeping for 4 years,33 alleged the following:

Wednesday, August 18, 1999: Ms. Ramelb was going on
break around 12:00 noon. She asked George [Balagso] the
valet, “What did they have to eat in the Café?” He said out
loud, “Nothing you would want to eat, “ and then he said,
“But I have something good for you to eat.” Ms. Ramelb just
shook her head.

Asked to describe this incident, Cindi testified that when
Balagso said this he was looking at her “like dirty,” and added
that he grabbed a banana from underneath the desk and placed
it in his crotch area. This made her “very uncomfortable.”
Cindi further testified that she immediately advised Delos San-
tos of this incident, stating that she was in the habit of always
going to Delos Santos and tell her about things that were hap-
pening. Delos Santos testified, however, that she did not recall
Cindi advising her of any incident involving a banana, and that
in fact Cindi did not tell her about this. I find that in fact there

31 Hunter, who has had experience with sexual harassment issues,
was asked to define sexual harassment. He testified that “it’s a very
blurry line between the law of the shop where people maybe use foul
language and a pattern, an established pattern of conduct. . . . And I do
think in this instance everybody had a little bit of a blurry perception of
what it was, including Cindi.”
32 I find that in fact Cindi made no complaints to the employee coun-
cil or to the representatives of the employee council about anything at
any time. This is substantiated by the credible testimony of employees
Noreen Madeiros and Bobby Craddick, former Assistant General Man-
ager Alvin Palayo, and former Bell/Valet Manager Kimo Paishon, all of
whom were members of the counsel at all material times throughout
Cindi’s employment.
33 Cindi testified that she got rid of the notebook after she left the
Respondent’s employ.
was no banana, because this is something Cindi would not have
omitted from her detailed contemporaneous notes of the inci-
dent. Nor did she mention the banana to Hunter. It appears
that Cindi was prone to say anything that came to her mind,
whether based in fact or imagination.
Further, with regard to the incident involving Freitas, Cindi
told Hunter that this was the only time Freitas had made a
sexually explicit comment to her. In fact, Hunter emphasized in
his testimony that Cindi was “very conflicted about coming
forward with respect to anything having to do with [Freitas].
This was the one and only run-in, if you will, that she ever had
with him . . . I got the feeling she was not comfortable having
said something about him.” However, Cindi’s testimony di-
rectly contradicts what she related to Hunter: thus, she testified
that Freitas had made similar comments to her on other occa-
sions. One simply does not know what part of Cindi’s testi-
mony to believe or disbelieve. And with regard to Cindi’s al-
leged sexual harassment complaints against former manager,
Kimo Paishon, Cindi, in an apparent effort to show that she did
not appreciate his alleged conduct, testified that he “crashed”
her wedding as an uninvited guest. However, Paishon credibly
testified, among other things, that he received a written invita-
tion to Cindi’s wedding and that the two of them were very
friendly. And former assistant hotel manager, Alvin Pelayo
testified that he and his wife and Paishon and his wife attended
Cindi’s wedding, that it was a small wedding of 40 or 50 peo-
ple, that there were seats for the 4 of them, and that they all sat
together. I do not know whether Cindi really believed that she
had not invited Paishon to her wedding or whether she was
deliberately fabricating her testimony to support her belief that
Paishon had sexually harassed her, but I find that she did in-
deed invite Paishon to her wedding. As a result of the forego-
ing, and her entire testimony, I find that she is simply not a
credible witness.
5. Testimony of James Kimo Paishon, Alvin Palayo,
and Edgar Inez
James Kimo Paishon began working for the hotel when it first
opened, and worked there as bell/valet manager until shortly
before he left in late 1997. He testified that all of the employees,
including Cindi, seemed to get along very well together, and that
while there might be the usual bickering about shifts or tips
there were no problems of a serious nature. Cindi never com-
plained to him about harassment of any kind by other employ-
ees. When the family situation between Cindi and Leo devel-
oped, Delos Santos told him that since neither employee was
willing to change shifts, Paishon was to find a way to get them
to work together. After that, according to Paishon, “They really
did not speak to each [sic], you know, but they did continue to
work in the best manner they can to perform their job,” and they
would have to talk to one another if it was job related. During
his entire tenure with the Respondent, Paishon was a manager-
representative on the employee council, and was cochair of the
council for 4 years. Paishon testified that Cindi never once
made a complaint to the council about anything. Nor was he
ever notified that Cindi had ever made a complaint against him
for sexual harassment. He did relate, however, that Cindi once
complained to the hotel’s then general manager about Paishon’s
EMBASSY VACATION RESORTS 865
changing of her shift schedule. Paishon testified that employees
could talk amongst themselves about any subject, including talk
with sexual overtones, so long as they did not make disparaging
remarks about their fellow employees and so long as their con-
versations could not be overheard by guests. Paishon did re-
ceive an invitation to Cindi’s wedding and did attend the wed-
ding. I credit Paishon’s testimony in its entirety.
Alvin Palayo is currently vice president with Sweeny Inter-
national Hotels. He was assistant general manager of the Re-
spondent from the time the hotel opened until late 1997, when
the current management took over. Pelayo testified that the
bell/valet employees, including Cindi, were always laughing
and seemed to get along very well “like family.” Pelayo, who
was also a management member of the employee council from
1988 to late 1997, testified that management “depended a
whole lot on the council to keep harmony within the Hotel,”
and that Cindi never came to him to lodge a complaint about
sexual harassment by Paishon or anyone else. He testified that
both he and Paishon, together with their wives, attended Cindi’s
wedding, and that Paishon did not “crash” the wedding. He
further testified that Cindi was a good employee and that there
were no problems with her. I credit Palayo’s testimony in its
entirety.
Edgar Inez is a bell valet employee and works as a clerk in
that department. A clerk is in the nature of a dispatcher, an-
swering the phone and dispatching bell/valet employees to
perform bell services for guests. He has been a clerk since
about 1995, and has worked with Cindi, Craddick, Freitas,
Fronda, Balagso, and Leo since he started. He got along “really
well” with Cindi, and had personal discussions with her. Once,
during a conversation about her previous relationships and past
boyfriends, she described her sexual activity with one of them.
She also would critique women’s “body parts and stuff.” Inez
believed that Cindi and Balagso were pretty close and got along
very well; he saw them joking all the time. There came a time
when Cindi and Leo would never talk to each other on a per-
sonal basis, although this did not affect the performance of their
work. Also, he observed no problem between Cindi and
Fronda.
Inez testified that he was working on July 13, 1999, the date
of the incident with Fronda, and that Cindi did not seem to be
upset that afternoon. Moreover, on the next day he observed
that Cindi and Fronda interacted well and, according to Inez,
“They seemed like there wasn’t any problem.”
Inez testified that he went to see Delos Santos after Fronda
was suspended to express his concerns and the concerns of
other coworkers about the matter. He felt that Cindi’s claims
against Leo and Fronda were not justified, and that they had
done nothing wrong. Delos Santos simply responded that the
matter was being investigated. He asked Delos Santos if he
could speak with Hunter, and did so, telling Hunter the same
thing he had told Delos Santos.
6. Ongoing union activity
Craddick testified that Leo Ramelb was one of the main or-
ganizers, and particularly was involved with organizing em-
ployees in the housekeeping department. In late 1998, shortly
after Reyes was hired, Craddick spoke to Reyes about the “L-5”
hand signal that union employees would frequently use: One
day Reyes approached Leo and asked him what the hand signal
meant. Leo told him that it meant “employee unity.” Reyes,
believing this was a good thing, began using the signal, and
happened to give the signal to General Manger Dowsett. Crad-
dick, observing this, ran over to Reyes and said to him, “What
the hell are you doing?” Reyes told him that Leo had said it was
a sign for employee unity, and Craddick told him that it literally
meant “Local 5” but that to Leo, it did in fact mean employee
unity. In January or February 1999, at the bell desk, Reyes
related to him that he (Reyes) had been talking to General
Manager Dowsett, and that Dowsett had told him that things
were not resolved with the Union and that there would probably
be another election. Reyes related that he told Dowsett that,
“As far as he was concerned, everybody was a yes vote.”
Sometime after February 16, 1999, the Union distributed a
leaflet outside the Respondent’s premises entitled “Union-
Representation Update.” The leaflet sets forth the history of the
Union’s efforts up to that point, including the fact that on De-
cember 15, 1998, “Local 5 along with Robby Fronda, Bobby
Craddick and Noreen Medeiros stated their cases before the
NLRB.” The leaflet goes on to state as follows:

As of February 16, 1999, we are still waiting to hear
from the NLRB’s Washington D. C. office. This is what
we call the waiting game. Management files for an appeal
so they can prolong another election. [Emphasis in origi-
nal.]
We, your fellow employees and the organizers of Lo-
cal 5, want to let you know that we are still fighting for
your rights. It’s just going to take time. If you have any
questions, please feel free to contact any of us. If any one
wishes to have a copy of the hearing transcripts, just ask.
They’re public record.

Fraternally Yours,

Robby Fronda, Bobby Craddick,
Noreen Medeiros

On September 8, 1999, several weeks following Fronda’s
termination and Leo Ramelb’s 5-day disciplinary suspension,
the Union wrote to the Respondent to advise that “the Union
organizing committee includes, but is not limited to, Mr. Leo
Ramelb, Ms. Noreen Medeiros, Mr. Robert Craddick, and Mr.
Robbie C. Fronda.”
The Respondent replied to the Union by letter dated Septem-
ber 16, 1999. The letter is signed by Delos Santos and states,
inter alia, as follows:34

Your organizing committee is comprised of employees
who have subjected themselves to disciplinary action up to
and including termination.

34 Delos Santos posted both the Union’s letter and the Respondent’s
reply letter on the Respondent’s bulletin board at the Hotel and they
remained posted for an extended period of time even though Madeiros
vigorously complained about this to Delos Santos as being unfair and,
in effect, slanderous, as the Respondent’s letter falsely implied that
Madeiros had engaged in inappropriate and illegal activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
During a recent investigation of inappropriate as well
as alleged illegal activities of certain members of your
committee, the employer has not or does not intend to dis-
criminate against employees for their union or non-union
activity.
. . . .
We hope that your formal notice letter does not give
your committee members a false impression of immunity
of the employer’s rules, regulations, policies or proce-
dures, as well as federal and state laws;
The employer intends to legally enforce any and all
violations of laws to protect our employees from becom-
ing victimized by any and all perpetrators whether it be
your committee members or your mastermind local organ-
izers, business agents, officers, etc. or anyone else;
Whether any collective bargaining relationship with
your union will exist depends upon the majority of em-
ployees and not your looking forward to a collective bar-
gaining relationship with us. The majority has already
demonstrated that they do not want your representation.

About 2 weeks before Craddick was suspended, he and oth-
ers distributed the following leaflet to employees outside the
front of the hotel:

ATTENTION: ALL
EMBASSY VACATIONS RESORT EMPLOYEES
An informational picket line will be set up35 soon at
the Embassy Vacation Resort to inform the public about
the gross injustices our fellow workers have suffered at the
hands of hotel management.
Recently, Leo Ramelb was suspended for his Union
activities and Robbie Fronda was terminated for exercising
his federally protected right to join the Union. Local 5 has
filed charges with the NLRB to get them reinstated.
What Management did to Leo and Robbie shows us
how insecure our jobs really are and just how much we
need the Union.

NO REASON TO FEAR!
When the picket lines go up, please go to work As
usual and as always. . . . Do the best job you can.

Committee Members

Robbie Fronda
Noreen Medeiros
Bobbie Craddick

7. The 8(a)(1) and (5) allegations
Noreen Madeiros is a front-desk clerk. She has worked at
the hotel since August 4, 1990. She was a member of the Un-
ion’s organizing committee. On October 30, 1999, the day
following the October 29, 1999 certification of the Union as the
collective-bargaining representative of the unit employees, she
received permission from Assistant Hotel Manager David Celli

35 It appears, however, that no informational picketing was con-
ducted.
to return to the hotel property to meet a coworker for a social
drink after work. She entered the premises, notified her man-
ager that she was on property and would be meeting another
employee for a drink at the bar, and proceeded to walk down
the stairs in the food and beverage area. While she was “in the
back area where the kitchen is,” five employees approached her
and said that during a meeting with the food and beverage man-
ager they had been notified that they were not permitted to go
to human resources if they had any disciplinary problems;
rather they were required to contact a union representative.36
They considered Madeiros to be a union representative because
she had been a union organizer during the campaign. They
asked for her union business card and she handed out three of
them.
Then Madeiros proceeded to the bar where she had a drink
with a friend. At some point she entered the kitchen again, and
spoke to two kitchen employees who also wanted to know what
they were to do if they could not go directly to human resources
with their problems. She told them she was working on it.
Then she passed through the kitchen area and went to the load-
ing dock where she had a cigarette. Another employee came
outside on the loading dock on his break. He, too, wanted to
know what he should do if he got disciplined, and she gave him
one of her cards. And then another employee came out just to
say hello. The security guard was in his office nearby, and
Madeiros’ activity could be observed through the security of-
fice window. The security guard came out and asked her what
she was doing. On November 1, 1999, she was called into the
office by John Roach, assistant general manager, and given a
“Verbal Communication” warning notice for being in violation
of the Respondent’s no solicitation and distribution rule.
A report by her manager, Kathy Catugal states, inter alia,
that on October 29, 1999, “It was stated that [Madeiros] was
talking with several employees and giving out business cards.
Later Noreen was observed walking through the kitchen area
and was talking with William Pasqua and Paul Badua.”
It is alleged in the complaint that the Respondent discrimina-
torily enforced its no-solicitation and distribution rule against
Madeiros because of her union activity. Thus, according to the
testimony of Madeiros, the Respondent had permitted other
forms of solicitation and distribution by outside vendors on its
property. Madeiros testified that in December 1998, after the
first election, there were vendors coming onto the property sell-
ing burritos; that at about that time the Respondent’s general
manager purchased a Christmas tree for the hotel from an out-
side organization that came on the property; that in September
1999, the reservations manager was at the front desk selling
tickets for her Soroptomus club, and that Medeiros complained
36 Madeiros had already been made aware of the situation, and had
previously contacted the Union about this shortly after the election:
Thus, an employee who had been written up for being late went to
human resources to complain that the writeup was unjustified; he was
told by Delos Santos that he could not bring the matter directly to her
but first had to contact his union representative and only the Union
could bring the matter to human resources. The employee contacted
Madeiros about this and Madeiros had contacted the Union’s business
agent because of the change in the Respondent’s practice in permitting
employees to come directly to Delos Santos.
EMBASSY VACATION RESORTS 867
to her front desk manager about this; and that “during the last
couple of years” there has been a lady who would come on the
premises on Wednesdays selling “lau lau,” some type of Hawai-
ian food, and the lady would stop by the bell desk, and the front
desk, and the flower shop selling lau lau to the employees.
On November 1, 1999, the same day that Madeiros received
her warning notice, the Respondent posted a notice to “All
Staff,” regarding “Signing in While on Property During Off
Hours.” The notice states:

This is a reminder that any and all staff must sign in at
Security in the Vendor/Visitor Log Book if coming onto
Company property other than their scheduled shift.
Additionally, staff must receive approval by their re-
spective Managers prior to arrival. Staff must keep out of
any Back-of-House areas and must not interfere with any
staff on duty.
Please refer to your employee handbook or call Secu-
rity or Human Resources for any questions concerning this
policy. [Emphasis in original.]

Madeiros testified that although this policy had been in exis-
tence and that she was aware of it, nevertheless it was not en-
forced; thus, Madeiros had frequently come to the hotel during
off-duty hours after having obtained prior permission from her
supervisor or manager, but was never required to sign in with
security. Signing in, she stated, is inconvenient and even an
annoyance, particularly when an off-duty employee is being
accompanied by nonemployee friends.
Madeiros testified that during her November 1, 1999 meeting
with Assistant General Manager John Roach and Manager
Kathy Catugal, other matters were discussed in addition to the
warning Madeiros received. Madeiros advised them that the
employees were concerned about no longer being permitted to
go directly to human resources to dispute a disciplinary warn-
ing or other disciplinary problem. Catugal verified this and
replied that Delos Santos had stated that everything had to go
through the Union and that this was now the new policy.
Roach also confirmed that this was the new policy that would
be followed. Madeiros advised them that the Union’s secre-
tary-treasurer had stated that this was a change of policy that
first had to be negotiated with the Union.
In about late January or early February 2000, Madeiros was
called to Assistant General Manager Roach’s office. Manager
Catugal and Neftali Reyes, who had been promoted to assistant
hotel manager, were also present. Apparently the Union had
sent a letter to the Respondent advising that Madeiros would be
the Union’s interim representative. Madeiros was told that,
“[t]his is just a friendly conversation. We don’t want to infringe
on anybody, but we need you as a leader, as a front desk lady
who had been there for ten years, to help us out.” Madeiros testi-
fied that Catugal advised her that the Respondent intended to
begin enforcing certain policies that had not been enforced in the
past, and specifically mentioned the tardiness policy that permit-
ted employees 7 minutes “walking time” before they were con-
sidered to be tardy. According to Madeiros, “They were gener-
ally asking me to let the employees know that they will be nego-
tiating that in the contract to be at the start of the hour.” How-
ever, Madeiros also testified that following the election employ-
ees began receiving warnings for clocking in a minute or two
late. Catugal also said that the Respondent would begin enforc-
ing the policy requiring that off-duty employees sign in and off
the property with security.
Abraham Pena currently works in the Respondent’s security
department. Since August 1999 until about September 15,
2000, Pena worked in the housekeeping department as a rooms
control clerk. His manager was Cathy Quevido, executive
manager of the housekeeping department. Pena testified that he
signed a union authorization card prior to the second election,
and that his union activity took place in about May 1999, when
he would tell his coworkers about the benefits of the Union and
everything; he would also tell them that if they had any prob-
lems they should go talk to management or the person in
charge. Pena testified that on October 22, 1999, the day fol-
lowing the election, he received a phone call at work from
Quevido, who had just returned from a trip. She asked how
was everything was, and also asked him the result of the elec-
tion. He told her that the Union had won. She asked him how
he felt about that. He said, “Well, what can I do? . . . there was
a lot of activity, you know, with coworkers and they all want
the union.” She said, “Oh, okay.”
Pena testified that after that he received several verbal warn-
ings from Quevido on February 19, 26, and 27, 2000. He be-
lieves that they were not warranted and that they resulted from
Quevido’s belief that he had been active on behalf of the Union.
Quevido testified that the foregoing conversation on October
22, 1999, never happened, that she did not single Pena out but
treated everyone equally, that she did not know whether Pena
had supported or was supporting the Union, that the three warn-
ings she gave him within a short period of time were warranted
due to some work-related deficiencies he exhibited, and that the
fact that Pena happened to receive three of the five warnings
that she issued during a particular time period was by mere
coincidence.
C. Analysis and Conclusions
1. The suspensions and discharges; hiring of the
impartial investigator
Abundant record evidence shows that prior to the events
herein the Respondent’s human resources manager, Bernie
Delos Santos, made it her practice to conduct an internal inves-
tigation of employees’ complaints if she believed the com-
plaints were significant enough to warrant any investigation at
all. Further, after investigation, any subsequent disciplinary
action was governed by the Respondent’s four-tiered progres-
sive disciplinary policy. Indeed, as concluded by Hunter in his
first report, the Respondent tends to go “the extra mile to give
. . . employees every opportunity to turn things around before
termination. . . . The Company has been flexible and lenient in
its dealings with employees who were or are the subject of
disciplinary procedures. In some instances The Company has
bent over backwards to give troubled employees a chance to
cure their problems.” Moreover, the Respondent’s disciplinary
policy specifically emphasized that,” TERMINATION OF
EMPLOYMENT IS A SERIOUS MATTER which normally
occurs after corrective discipline has failed.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
Thus, for example, on October 27, 1998, Cindi Ramelb com-
plained to Delos Santos about bell/valet employee Stacey Ka-
hue.37 Delos Santos’ memorandum of Cindi’s complaint states
that Cindi “felt very distressed” about harassment from Kahue.
She told Delos Santos that Kahue “intimidates her,” that she
fears saying anything to him about his conduct as he “will chew
my head off, he’s done it before so I won’t say anything,” that
he commonly uses foul language and this makes her very un-
comfortable, that she is “afraid of him due to his aggressive
nature,’’ and that she “fears for her job that an altercation may
ensue, so she wanted to say something to management to see if
we could remedy the situation.” Delos Santos “attempted to
reassure Cindi that I will do everything possible to remedy the
situation. That I will be speaking to all the employees of my
expectations and the things we will be required to do to better
serve our clients and fellow employees.” Delos Santos also
noted that Cindi was “clearly upset” over this situation, and was
so “considerably hindered by Kahue that she “notices in herself
a big change in attitude and mood when this person arrives to
work.” Delos Santos “discussed with Cindi her rights to a safe
work environment and how we will manage her concerns. That
we in management support a safe and unhostile atmosphere and
will do everything to correct the situation.”
The manner in which Delos Santos handled the Kahue situa-
tion is instructive in contrast with the discipline imposed on the
alleged discriminatees in this matter. Unlike Fronda, Kahue
was not immediately suspended even though Cindi complained
that Kahue intimidates her and she is afraid of him due to his
aggressive nature. Indeed, Kahue’s personnel records show no
warnings or discipline by management until December 23, 1998,
when Reyes completed and provided Kahue with a “Progressive
Disciplinary Plan” and “Corrective Plan” as part of a work per-
formance evaluation. This four-page detailed document was
signed by Reyes, Delos Santos, and General Manger Dowsett.
Reyes determined after a thorough investigation that Kahue was
deficient in nineteen areas under the general headings of “Disre-
spect,” “Tardiness,” “Creates a Hostile Environment,” and
“Work Performance.” Among his other deficiencies it was
found that he shows little or no respect to either his supervisor or
coworkers; that he refuses to cooperate with others or with de-
partment policies; that his manner in talking back to his supervi-
sors, guests and coworkers are rude and threatening; that he is
insubordinate to his supervisor and turns his back on guests; that
he has created by the “serious and substantiated” complaints of
coworkers a “very hostile environment”; and that he has en-
gaged in “verbal outbursts” with Manager Reyes.
The “Corrective Plan” developed for Kahue provided that if
any of the deficiencies “have not improved” within a 30-day
timeframe from December 23, 1998, “a second review will be
completed at which time a decision will be made as to any fur-
ther disciplinary action or termination.” On January 28, 1999,
Reyes issued a “30 Day Probationary Period Re-evaluation”
finding that Kahue had in fact improved and had therefore
passed his 30-day probation. However, in about May, Kahue
apparently began to revert to certain prior conduct that had

37 It appears that Cindi was not the only person complaining about
Kahue at this time.
been found to be unacceptable. An “Employee Disciplinary
Log” entry dated May 18, 1999, notes, inter alia, that he has
difficulty accepting direction and counseling; that he argued
with an employee (Plinio) in front of guests and had to be told
three times to stop as this was not the place for such conduct;
and that he leaves his post frequently and has a “combative
attitude” toward supervisors and fellow employees when ques-
tioned. An “Employee Disciplinary Log” entry dated May 20,
1999, notes that he was absent from his work station, that he
argued with a supervisor in front of guests, and that he was
asked by Reyes more than once to stop arguing. On May 21,
1999, he was given a 5-day suspension pending termination.
On May 26, 1999, during an investigative interview, he was
provided an opportunity to state his position and Delos Santos
told him that she “would investigate the disciplinary action
further.” Apparently he did not return to work after May 21,
1999, and was permitted to resign his employment.
Similarly, Respondent’s records show that on November 13,
1998, employee Jeremy Delos Reyes was given a 2-day sus-
pension for willful disregard of policy and leaving his post
without cause after telling Manager Reyes that “he was leaving
before he will punch a guest or employee,” because he was
upset with that day’s scheduling; on February 5, 1999, he was
given a written warning for profanity by posting a note at the
bell desk, in view of employees and guests, stating,” Stop fuck-
ing with my name tag cause I’m getting pissed off. Jeremy”;
and on April 22, 1999, it appears that he was given a 5-day
suspension for a multitude of things, including stating to Man-
ager Reyes, who had asked him a work-related question, “what
did you say to me? Don’t you ever talk to me that way again,”
and walking away from servicing a guest so that Reyes had to
finish with the guest. Finally, at a meeting attended by Delos
Santos on May 5, 1999, during which Reyes outlined the vari-
ous deficiencies of Jeremy Delos Reyes, the employee asked
Manager Reyes if he had a personal problem with him. Man-
ager Reyes answered no, and the employee said that he feels
there is a problem because of the way Manager Reyes speaks to
him and “when people talk to him that way he usually gets
pissed off and gets physical.” Delos Santos responded by say-
ing that everyone needed to work together, and Manager Reyes
agreed, asking the employee “to give it a try.”38
In contrast, Cindi complained about Fronda and Leo Ramelb
on July 14, 1999, and, without any investigation whatsoever,
the Respondent thereafter suspended Fronda, one of the Un-
ion’s three known leading activists and admittedly an employee
with an exemplary 10-year employment history. Indeed,
Bell/Valet Manager Reyes was present or in the immediate
38 Respondent’s personnel records, reflecting disciplinary action
taken against employees Lance Young, Clement Kaleikini, Helene
Sado, and others, for insubordination, discourteous, and rude behavior
to guests, and discourteous, profane, and rude conduct toward other
employees, document the Respondent’s pattern of leniently enforcing
its progressive disciplinary policy. Further, contrary to Delos Santos’
testimony, such personnel records show that employees are not neces-
sarily given “progressive” discipline and that sometimes “regressive”
discipline is given; thus, Clement Kaleikini was given various written
warnings subsequent to a suspension that was given for essentially
similar conduct.
EMBASSY VACATION RESORTS 869
vicinity throughout the July 13, 1999 incident about which
Cindi complained, and was even involved in the initial ex-
change of words between Cindi and Fronda, yet there was no
evidence presented by the Respondent that Delos Santos even
asked for Reyes’ evaluation of the matter. In fact, Delos Santos
was highly evasive when asked about this, and testified that,
while she would customarily consult Reyes regarding employ-
ees’ complaints against other employees, she could not remem-
ber whether she did so on this occasion, and that in fact Reyes
“may or may not” have told her that he was opposed to sus-
pending Fronda over this matter. I find from her evasive re-
sponse that she did not consult with Reyes. Thus, rather than
consulting with the single individual who clearly was most
familiar with what had transpired and with the personalities and
working relationship of Fronda and Cindi, Delos Santos instead
consulted with her human resources superior, Julie Field, and
the Respondent’s attorney, two individuals who knew nothing
about the working relationship between Cindi and Fronda or
about the verbal exchange between the two on July 13.
I found Delos Santos, who testified at length in this proceed-
ing, to be a singularly untrustworthy witness. She was evasive,
often nonresponsive, and testified in abbreviated, conclusionary
language that simply did not convey candor or exhibit a convinc-
ing rationale for the Respondent’s actions, and particularly its
deviation from past practice in dealing with the suspensions and
discharges herein. Specifically, I do not credit her repeated asser-
tion that Cindi’s alleged emotional demeanor on July 14, 1999,
without more, was the motivation for the July 15 suspension and
the subsequent discharge of Fronda.39 Thus, Fronda was not
suspended until after he had worked with Cindi on three subse-
quent overlapping shifts following the July 13 incident. This
alone was sufficient, I find, to demonstrate to Delos Santos that
Fronda did not pose a real physical threat to Cindi and that
Cindi’s alleged fears were unfounded. Indeed, Delos Santos did
not even contemplate putting Cindi and Fronda on different shifts
that were not overlapping. Moreover, it seems apparent that at the
July 14 meeting Cindi was not simply complaining about Fronda;
she was also complaining about 8-1/2 years of alleged mistreat-
ment. Hunter understood this and, testifying that Cindi was cry-
ing and emotional during “a fair amount” of his nearly 2-hour
July 28 interview with her, made the observation that her emo-
tional demeanor “was really the culmination of a lot of pent up
feelings that she had about things that occurred at the workplace
over the last decade.”
Further, the statement that Cindi attributed to Fronda, “Don’t
make me mad,” clearly is a spontaneous statement that does not
constitute an implied threat of any sort that would, without
more, put a reasonable person in fear of her safety. And be-
cause Cindi was a regular visitor to Delos Santos’ office and
was certainly not reluctant to voice any dissatisfaction with any

39 Indeed, Delos Santos’ Board affidavit states that she decided to
suspend Fronda only after he advised her of the guest’s ‘“Don’t hit her”
comment, “because I thought that indicated that if a guest was concerned
enough to make that statement, that Robbie must have been very angry.”
In fact, however, Delos Santos testified and the record evidence shows
that the Respondent had decided to suspend Fronda before investigating
the matter, before summoning him to Delos Santos’ office that day, and
before ever being advised by Fronda of the guest’s statement.
of her coworkers, it is clear that Delos Santos knew that Cindi
had never accused Fronda of exhibiting any aggressive behav-
ior toward her.40 These considerations, coupled with Delos
Santos’ incomprehensible failure to follow past practice and
first investigate Cindi’s claim or to gather what would certainly
have been invaluable input from Reyes, compels the conclusion
that Fronda’s suspension was motivated by considerations en-
tirely distinct from Cindi’s complaint.
This conclusion is graphically enforced by Delos Santos’ de-
parture from Hunter’s recommendation in his August 23, 1999
supplemental report after he had conferred with Cindi pursuant to
Delos Santos’ request. Hunter related to Delos Santos that Cindi
was amenable to working with Fronda during a 2- to 4-week trial
period to assess whether there was a change in Fronda’s behav-
ior. Delos Santos, however, was not amenable to this resolution,
and summarily discharged Fronda without further input from
Hunter. Again, for the reasons set forth above, I do not credit
Delos Santos’ testimony that she believed that Cindi had any
reasonably based fear of Fronda in any respect. Clearly, Delos
Santos and the Respondent had an agenda of their own that was
different from that of Hunter and even Cindi, who had expressed
a willingness to accept Hunter’s recommendation and endeavor
to work with Fronda during at least a trial period. This particular
agenda of the Respondent was dictated, I find, by Fronda’s
highly visible and active union advocacy, and by the further con-
sideration that the discharge of one of the Union’s leading union
adherents would demonstrate the Respondent’s antiunion resolve
to other employees during a time when the Respondent was an-
ticipating a second election.
I find that Delos Santos was well aware of the fact that the
guest’s statement to Fronda, “Don’t hit her,” was made in jest. I
credit Fronda and find that he told her this on July 15, 1999,
during his suspension interview, and again on August 23, 1999,
during his discharge interview. As noted above, I found Fronda
to be a particularly trustworthy and reliable individual who
seemed to take his duty as a witness under oath with the utmost
seriousness. Moreover, Delos Santos did not deny that this is
what Fronda told her, and gave no reason for neglecting to in-
clude this fact in her memorandum. Further, I find, that given
the comparative size of Fronda and Cindi, Delos Santos readily
understood, as would any reasonable observer, why a guest
would find the situation to be somewhat humorous. Finally, I
find that Delos Santos’ knew that Hunter’s reliance on her defi-
cient memorandum was misplaced and that Hunter really did not
understand the dynamics of the situation, and, accordingly, that
Hunter’s conclusion was erroneous. Accordingly, I do not credit
40 On December 23, 1998, Cindi was obviously very emotional and
had to be sent home for her full shift after a meeting with Delos Santos,
Reyes, and General Manager Dowsett regarding alleged harassment by
Fronda and Kahue. During this meeting, according to the notes of Delos
Santos, Cindi stated that employees tease her, pick on her, and make
jokes, and repeatedly said that she wasn’t putting up with this anymore,
and “if I have to sign something today I will.” Dowsett suggested to
Cindi that she was overreacting to these things, and then Reyes explained,
apparently to Dowsett and Delos Santos, that he was having “counseling
sessions” with Cindi. This complaint by Cindi against Fronda was not
even relayed to Fronda, apparently because management did in fact be-
lieve that Cindi was overreacting and that Fronda was not at fault.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
Delos Santos’ testimony to the effect that she accepted Hunter’s
report at face value and believed that in fact the guest was actu-
ally admonishing Fronda not to hit Cindi. Fronda was admit-
tedly upset with Cindi, but even Cindi did not relate to Delos
Santos or anyone else that Fronda had made any gesture toward
her that could be described as threatening.
I credit the testimony of Leo Ramelb in its entirety. Ramelb
was acutely sensitive to the potential effect that his awkward
relationship with Cindi, due to the family dispute, could have
on his work performance, and sought to deal with the situation
by seeking permission of Delos Santos, Paishon, and Reyes to
simply not speak to Cindi except when their work-related duties
required some communication. I find that Delos Santos,
Paishon, and Reyes had assured him that he could do this, and
that for approximately a year this is precisely the working rela-
tionship between the two that had been sanctioned by supervi-
sion and management. Delos Santos did not deny this during
her testimony, and I do not credit the denials contained in her
affidavit.41
Hunter was the only one who did not understand the rela-
tionship between Leo and Cindi. Thus, Hunter found in his
report that in fact Leo was harassing Cindi by giving her the
silent treatment and, in so doing, was violating Respondent’s
rules regarding employee conduct. Delos Santos, however,
knew very well that Hunter’s conclusions regarding this matter
were erroneous. Nevertheless she seized upon this and, ignor-
ing Hunter’s recommendation that Leo was sincere in doing
what he though best and should be given simply a warning and
nothing more, imposed a 5-day suspension. Clearly, Leo had
not violated any policy and his silence toward Cindi, having
been approved, could not be characterized as harassment. Ac-
cordingly, I conclude that the Respondent was motivated by
other considerations. I do not credit Delos Santos’ testimony
that she was unaware of Leo’s union activity. Rather, I find
that Reyes and therefore the Respondent clearly knew that Leo
was an active union adherent as demonstrated by the credited
testimony of Leo and Craddick, and as further demonstrated by
Manager Reyes’ similar statements to Hunter and to Craddick
that, to his knowledge, all the bell/valet employees were union
except for Cindi.
With regard to employees Balagso, Craddick, and Freitas, it
is clear that they were considered to be very satisfactory em-
ployees, that there had been no past claims against them of
sexual harassment or of any other type of harassment by Cindi
or anyone else, and that the claims made against them by
Cindi’s attorney were statements they allegedly made to Cindi
about third parties and, except perhaps for the one statement, “I
have something good for you to eat,” which was clearly said in
jest, were not directed personally to Cindi. Under these cir-
cumstances, there appears to be no reason for the Respondent’s
immediate suspension of these employees without any prelimi-
nary investigation whatsoever, and in total disregard of its four-
step progressive disciplinary policy that requires first a verbal
warning, then a written warning, and only after these two steps,
a possible suspension. Accordingly, given the Respondent’s

41 Although her affidavit was introduced into evidence as an exhibit,
I do not regard the affidavit as a substitute for live testimony.
union animus, coupled with its awareness of the union activity
of Craddick and Freitas, and its belief that all the bell/valet
employees with the exception of Cindi were prounion, I con-
clude that the General Counsel has made a strong showing that
the suspensions of these three individuals was discriminatorily
motivated.
Hunter concluded that these three employees did make cer-
tain unwelcome remarks to Cindi that amounted to sexual har-
assment. Having been given the benefit of a lengthy 11-day
hearing during which the parties were represented by compe-
tent counsel, I respectfully disagree with Hunter’s conclusions.
Nevertheless the Respondent maintains that it discharged the
employees in reliance upon Hunter’s second report. Delos
Santos testified that she was aware that the three employees had
nothing in their personnel files “showing a progressive disci-
pline for complaints.” Asked then, by Respondent’s counsel,
why she terminated the three employees even though the Re-
spondent’s progressive disciplinary policy was not applied to
them, Delos Santos testified that she was attempting to be con-
sistent with the action she had take previously against an indi-
vidual who had been suspended and terminated for sexual har-
assment, infra, and she considered the behavior of the three
employees to be comparably serious; moreover, according to
Delos Santos, the three employees had been given formal sex-
ual harassment training in 1997, and “had training after that by
[Reyes] talking to them.”42
The comparable incident to which Delos Santos was refer-
ring involved a male independent contractor who was also ap-
parently a manager or supervisor in the Respondent’s timeshare
office. That person, according to Delos Santos’ notes, was “re-
moved from the floor immediately due to a [sic] alleged har-
assment claim against him.” The complaint against him was by
a female office worker who complained to her superiors, one of
whom happened to be a witness to the incident, that as she was
standing at the copy machine the male individual grabbed her
and pulled her towards him, and, saying he was “going down
for a box,” then “bit her on the butt, leaving a saliva print on
her buttock.” She let out a scream and seemed to be in shock.
She said that she was afraid of him and didn’t know what to do.
The matter was extensively investigated by Delos Santos and
the individual was discharged.
The difference between the situations is that one may be
fairly characterized as sexual assault and the others as isolated
instances of sexual banter.43 I do not credit Delos Santos’ tes-
42 Delos Santos testified that this is what she meant in the termina-
tion letter by the words, “you were . . . warned once again since the last
incident in July 1999,” namely, that Reyes had spoken to them or had
given them additional sexual harassment training after the July 1999
suspension of Fronda. In fact, I find there had been no such additional
training, and I credit Craddick’s and Balagso’s testimony to the effect
that during periodic departmental meetings where matters of general
interest were discussed, Reyes did not give the employees any further
sexual harassment training of any kind at any time.
43 See Baskerville v. Culligan International Co., 50 F.3d 428 (7th
Cir. 1995), where the Seventh Circuit stated that “occasional vulgar
banter, tinged with sexual innuendo, of coarse or boorish workers” does
not violate title VII of the Civil Rights Act, and that an “employer’s
legal duty is thus discharged if it takes reasonable steps to discover and
EMBASSY VACATION RESORTS 871
timony to the effect that she believes the two are comparably
serious as this defies common sense.
Nor am I persuaded by the Respondent’s further rationale
that such action had to be taken against all five of the employ-
ees due to the Respondent’s fear of a lawsuit by Cindi for fail-
ure to address her complaints. In this regard, it is important to
note that Hunter, in his first report, found that sexual harass-
ment and other forms of workplace harassment against Cindi
were pervasive and ongoing; and he recommended that all of
the employees in the bell/valet department, not only Fronda and
Leo Ramelb, be required to attend and complete “Discrimina-
tion and Sexual Harassment Training” and that they also be
required to attend a full day retreat in which “ethnic/cult-
ural/gender diversity awareness is further developed.” Further,
in his second report, Hunter found evidence to confirm his “ear-
lier finding that a hostile work environment continues to exist
in the bell valet department.” Delos Santos testified that she
accepted these findings as valid and attempted to contract with
private outside agencies to provide such training but was unable
to do so because of scheduling conflicts.
I simply do not credit Delos Santos’ testimony: as noted, she
was generally an incredible witness; it seems inherently implau-
sible that such training was unavailable or could not have been
scheduled at any time from July through October 1999; and the
Respondent has provided no documentary evidence substantiat-
ing Delos Santos’ cursory testimony that she made any effort
whatsoever to contact outside agencies for the purpose of sched-
uling such training. I find that, in the absence of any credible
evidence to the contrary, she did not even attempt to do so.
Moreover, Delos Santos neither met with the employees herself
nor directed Reyes to do so in order to sensitize them to the
problems pointed out by Hunter. It is clear that if the Respon-
dent had truly been concerned about a lawsuit it would have
scheduled such training immediately upon receiving Hunter’s
August 4, 1999 report. I find that the Respondent’s failure to act
upon Hunter’s recommendations in any manner supports the
conclusion that the motivation for the suspensions and dis-
charges of the employees herein was unrelated to any potential
lawsuit.44

rectify acts of sexual harassment of its employees. Here we add that
what is reasonable depends on the gravity of the harassment.” It is
clear that the Seventh Circuit sanctioned the employer’s reasonable
response to a number of sexual remarks over a period of several months
and after one prior warning: “The matter was promptly investigated,
and both the director of the department, and Hall’s immediate supervi-
sor, told him that his offensive behavior must cease immediately. He
was also placed on probation and a salary increase was held up for
several months. He got the point.”
44 There is no requirement that, as suggested by the Respondent, re-
moval of an employee accused or suspected of sexual harassment or,
indeed, even found to have engaged in sexual harassment, is required
by title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e—
2(a)(1). See Baskerville v. Culligan International Co., supra. The cases
cited by the Respondent are clearly inapposite: Meritor Saving Bank,
FSB v. Vinson, 477 U.S. 57 (1986) (employee’s conduct included many
acts of physical contact including rape); Newsday, Inc. v. Long Island
Typographical Union Local 915, 915 F.2d 840 (2d Cir. 1990) (em-
ployee’s conduct included “chronic” sexual harassment including
physical contact); Stroehmann Bakeries, Inc. v. Teamsters Local 776,
The record evidence shows that during the relevant time pe-
riod, from July 15, 1999, when Fronda was suspended, until
October 4, 1999, when Balagso, Freitas, and Craddick were
suspended, the union campaign was still very much ongoing and
the Respondent was anticipating a second election. Indeed, the
October 4 suspensions of Balagso, Freitas, and Craddick oc-
curred only several weeks before the October 21 rerun election.
The Respondent was abundantly aware of the fact that at all
times material Fronda and Craddick were leaders of the union
movement, and that the other employees were either union ad-
herents or, at the least, suspected union adherents. Moreover,
the Respondent, as evidenced by the tenor of its abundant and
caustic campaign rhetoric, has demonstrated its strong opposi-
tion to the Union. These facts, coupled with the failure of the
Respondent to follow its progressive disciplinary policy with
respect to the individuals involved herein, warrant the conclu-
sion that their union activity or suspected union activity was the
motivating reason for their suspensions and discharges. For the
reasons set forth above, I find that the Respondent has not met
its burden of proof under Wright Line45 by demonstrating that
the employees would have been suspended or discharged even
in the absence of their union or suspected union activity. Ac-
cordingly, I find that by such conduct the Respondent has vio-
lated Section 8(a)(1) and (3) of the Act as alleged.
Near the conclusion of the hearing the General Counsel was
granted leave to amend the complaint by alleging that Hunter
has been an agent of the Respondent within the meaning of
Section 2(13) of the Act. The General Counsel maintains, es-
sentially, that Hunter was hired by the Respondent in further-
ance of the Respondent’s unlawful purposes. As a result of the
belated timing of this amendment to the complaint, and
Hunter’s unavailability on short notice, the parties agreed that
Hunter’s testimony would be conducted by teleconference.
Hunter testified at length. I find him to be a forthright witness
who was professionally and in good faith attempting to resolve
the matters presented to him both by the Respondent and Cindi
Ramelb, as thoroughly, expeditiously, fairly, and correctly as
possible given the information presented to him and within the
time constraints imposed upon him. In sum, there simply is no
evidence of collusion between Hunter and the Respondent.
This is graphically demonstrated by Hunter’s detailed first re-
port in which he recommends resolution of the matters in ac-
cordance with the Respondent’s progressive disciplinary policy
which he researched thoroughly. Thus, he did not sanction the
actions that the Respondent, in ignoring Hunter’s recommenda-
tions, decided to take.
An employer may certainly hire a third-party impartial inves-
tigator for valid business-related reasons, for example, because
of lack of internal investigative resources or, as alleged in this
case, to demonstrate a lawful intent to act in a nondiscriminatory

969 F.2d 1436 (3d Cir. 1992), cert denied 506 U.S. 1022 (1992) (em-
ployee’s conduct included intimate touching together with “sexually
charged” remarks); Transpatation Workers v. Burlington Northern R.
Co., 864 F.Supp. 138 (D. Or. 1994) (employee’s admitted sexual har-
assment, not specifically set forth, found to be “gross misconduct”).
45 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
manner. However, the Respondent’s motive in this regard is
suspect. Thus, it first summarily suspended Fronda, and thereaf-
ter Balagso, Freitas, and Craddick, in obvious disregard of its
progressive disciplinary policy, and, I have found, in violation of
the Act. Indefinitely suspending the employees in the first in-
stance is likely to convey a message to an outside investigator
that the Respondent believes the alleged conduct did in fact
occur, and that it is serious enough to warrant immediate disci-
pline; as a fait accompli it is a subtle way, I find, to influence the
results of the investigation. For the Respondent to then maintain
that it was attempting to present the matter to an impartial inves-
tigator in order to demonstrate lawful, nondiscriminatory, good-
faith conduct, seems intentionally deceptive. Rather, the se-
quence of events suggests that the Respondent hired Hunter with
the expectation or hope that Hunter would validate and legitima-
tize the Respondent’s unlawful conduct and, in effect, become
the Respondent’s accomplice in a scheme to rid itself of the
union adherents. Hunter, as noted above, did so only in part,
and the Respondent found itself in the dilemma of having to
choose between either adopting the impartial investigator’s rec-
ommended resolution of the matter or of ridding itself of
Fronda. In selecting the latter option it is clear that the Respon-
dent considered the discharge of Fronda to be more important
than a purported demonstration of impartiality. I find that the
facts, reasonably considered, show that the Respondent, unbe-
knownst to Hunter, hired Hunter in furtherance of its unlawful
purposes. As this matter appears to be reasonably encompassed
within the aforementioned amendment to complaint alleging
Hunter as an agent of the Respondent, I find that the Respon-
dent’s hiring of Hunter was unlawfully motivated in violation of
Section 8(a)(1) of the Act.
2. The 8(a)(1) and (5) allegations
I do not find that the verbal warning given to Madeiros was
unlawful. Madeiros did come on to the property during off-
duty hours and was essentially conducting union business in
unauthorized areas. Thus, she handed out her union business
cards and spoke to on-duty employees about union-related mat-
ters in kitchen areas where she was not supposed to be. It ap-
pears that she violated the provision included within the Re-
spondent’s off-duty sign-in policy providing that “[s]taff must
keep out of any back-of-house areas and must not interfere with
any staff on duty,” and that this was, at least in part, the reason
for the warning she was given. Thus, the fact that the Respon-
dent may have permitted certain outside vendors to sell mer-
chandise on the premises in violation of its solicitation and
distribution policy is not dispositive of this matter, as the Re-
spondent was attempting to enforce a different policy vis-à-vis
Medeiros. The fact that prohibition of off-duty employees from
being in “back-of-house areas” is included in the Respondent’s
off-duty sign-in policy which, I find below, was unilaterally
enforced, does not alter my conclusion because it appears that
the two rules, although appearing in one document, are distinct.
I shall dismiss this allegation of the complaint.
Medeiros’ testimony was somewhat confusing regarding the
alleged unilateral changes, particularly the policy regarding
tardiness. On the one hand it seems that the Respondent was
simply advising her, as a representative of the Union, that it
intended to negotiate this with the Union. On the other hand,
Madeiros did clearly testify that in fact the Respondent began
enforcing both the tardiness policy and the off-duty sign-in
policy, which were previously in existence but had not been
enforced, prior to negotiating such matters with the Union. The
Respondent did not present any evidence regarding these mat-
ters, but takes the position in its brief that there has been no
change in policy and that the Respondent was simply reminding
its employees of existing policy. In the absence of any evi-
dence from the Respondent regarding these matters, I find that
following the Union’s certification the Respondent did in fact
violate Section 8(a)(1) and (5) of the Act by enforcing its pre-
existing policies regarding tardiness and off-duty sign-in with-
out prior notification to and bargaining with the Union.
It is admitted that for a period of time following the certifica-
tion the Respondent required employees who received discipline
from their supervisors to first present the matter to the Union so
that the Union, in turn, could bring the matter to the human re-
sources department. This clearly precluded an employee from
going directly to human resources with the problem, and was an
abrupt departure, of course, from past practice. The Respondent
maintains that while it did so require employees to contact the
Union in the first instance, it has since returned to its prior pol-
icy of permitting direct employee access to the human resources
department. This appears to be correct. Nevertheless, I find that
the unilateral change complained of would likely cause conster-
nation among those bargaining unit employees who may not
have desired union assistance in presenting their concerns to
human resources. Moreover, it appears that in fact at least one
employee was turned away from human resources for this rea-
son. As the convenience of employees’ access to the human
resources department may certainly be deemed to be a term or
condition of employment, and as the Respondent unilaterally
changed its policy without prior notification to and bargaining
with the Union, I find that by such conduct the Respondent has
violated Section 8(a)(1) and (5) of the Act as alleged.
I find that the warning notices to Pena from Housekeeping
Manager Quevido were not discriminatorily motivated. Even
assuming that Quivido did ask him whether the Union won the
election and how he felt about it, Pena’s answers were non-
committal and did not did convey to Quevido that Pena was a
union advocate. Moreover, Pena’s union activity, insofar as his
testimony shows, was minimal at best. Nor is there any show-
ing that Quevido singled out other, more active, union adher-
ents for discriminatory treatment. Quevido impressed me as a
credible witness. I find that in fact she did not know whether
Pena was prounion, and that she issued the warnings to Pena
for legitimate reasons unrelated to Pena’s alleged union activ-
ity. I shall dismiss this allegation of the complaint.
CONCLUSIONS OF LAW
1. The 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. The Respondent has violated Section 8(a)(1), (3), and (5)
of the Act as set forth herein.
EMBASSY VACATION RESORTS 873
REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(1), (3), and (5) of the Act, I recommend that it
be required to cease and desist therefrom and in any other like or
related manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights under Section 7 of the Act.
As it has been found that the Respondent unlawfully terminated
and/or suspended employees Leo Ramelb, Robbie Fronda,
George Balagso, Kevin Freitas, and Bobby Craddick, it shall be
required to offer these employees immediate and full reinstate-
ment to their former positions of employment, without loss of
seniority or other benefits, and make them whole for any loss of
wages, including tips, or loss of other benefits they may have
suffered by reason of Respondent’s discrimination against them
in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Further, the Respondent shall
be required to expunge from the personnel files of the employ-
ees any reference to their unlawful warnings, suspensions or
terminations, and advise them in writing that this has been done.
In addition, the Respondent shall be required to cease and desist
from engaging in the unilateral conduct found unlawful herein.
Finally, the Respondent shall be required to post an appropriate
notice, attached hereto as “Appendix.”
ORDER46
The Respondent, West Maui Resort Partners, a Limited Part-
nership, consisting of Signature Capital-West Maui, LLC and
WHKG-S GEN-PAR, Inc., d/b/a Embassy Vacation Resorts,
Maui, Hawaii, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending and discharging employees because of their
interest in and activity on behalf of the Union.
(b) Hiring the services of an independent investigator in fur-
therance of an attempt to unlawfully suspend and discharge
employees.
(c) Engaging in unilateral conduct affecting wages, hours,
and working conditions of employees without prior notification
to and bargaining with the Union regarding such matters.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them under Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act.

46 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(a) Offer employees Leo Ramelb, Robbie Fronda, George
Balagso, Kevin Freitas, and Bobby Craddick immediate and
full reinstatement to their former positions of employment,
without loss of seniority or other benefits, and make them
whole for any loss of wages, including tips or loss of other
benefits they may have suffered by reason of Respondent’s
discrimination against them in the manner set forth in the rem-
edy section of this decision.
(b) Within 14 days from the date of this Order, remove from
the personnel files of the employees any reference to their
unlawful warnings, suspensions, or terminations, and within 3
days thereafter, advise them in writing that this has been done
and that their suspension and termination will not be used
against them in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay, including tips, due under the
terms of this order.
(d) Upon request by the Union rescind its announced intent
to enforce its policies regarding tardiness and off-duty sign-in
requirements, and bargain with the Union regarding such mat-
ters prior to implementation.
(e) Within 14 days after service from the Regional Office,
post at the Respondent’s facility copies of the attached notice
marked “Appendix.”47 Copies of the notice, on forms provided
by the Regional Director for Region 20, after being signed by
Respondent’s representative, shall be posted immediately upon
receipt thereof, and shall remain posted by Respondent for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material.
(f) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 20 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to comply.

47 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.”