Wilshire Plaza Hotel

National Labor Relations Board - Board Decisions

Sep 30, 2008

353 N.L.R.B. 304 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 29
304
Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel and
UNITE HERE Local 11, UNITE HERE! Inter-
national Union and The Los Angeles Hotel-
Restaurant Employer-Union Welfare Fund, the
Los Angeles Hotel-Restaurant Employer-Union
Retirement Fund and the Legal Fund of Hotel
and Restaurant Employees of Los Angeles.
Cases 31–CA–28135, 31–CA–28144, 31–CA–
28196, 31–CA–28247, 31–CA–28248, 31–CA–
28249, 31–CA–28250, 31–CA–28257, 31–CA–
28487, 31–CA–28490, and 31–CA–28143
September 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 7, 2008, Administrative Law Judge Gregory
Z. Meyerson issued the attached decision. The Respon-
dent filed exceptions and a supporting brief and the Gen-
eral Counsel filed cross-exceptions with a supporting
brief. The General Counsel and the Charging Party each
filed an answering brief to the Respondent’s exceptions.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions, as modified
herein, and to adopt the recommended Order as modified
and set forth in full below.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Respondent shall offer reinstatement to any employee laid off
as a result of the unlawful elimination of the lobby bar day shift and
make the employee whole for any loss of earnings and other benefits,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus in-
terest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Any additional amounts due to benefit funds as a result of the
Respondent’s unlawful failure to make required contributions to those
funds shall be computed in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 (1979). The Respondent shall reimburse unit
employees for any expenses resulting from its failure to make such
required payments or contributions, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981). Such amounts are to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Horizons for the
Retarded, supra. To the extent that an employee has made personal
contributions to a fund that were accepted by the fund in lieu of the
Respondent’s delinquent contributions during the period of the delin-
quency, the Respondent will reimburse the employee, but the amount of
reimbursement will constitute a setoff to the amount that the Respon-
The principal issue in this case is whether the parties
had reached good-faith impasse in their negotiations for a
new contract on February 1, 2007, when the Respondent
implemented parts of its final contract offer 2 days after
declaring impasse. The judge found that the Respondent
committed numerous unfair labor practices prior to the
declaration of impasse and that these unremedied viola-
tions were “so extensive and pervasive as to make it
practically impossible for the parties to have engaged in
good-faith negotiations leading to impasse.” He there-
fore found that the Respondent violated Section 8(a)(5)
of the Act by implementing parts of its final contract
offer in the absence of a legal impasse.
We affirm the judge’s finding that unremedied unfair
labor practices precluded the possibility of good-faith
impasse. However, it is well established that “[n]ot all
unremedied unfair labor practices committed before or
during negotiations . . . will lead to the conclusion that
impasse was declared improperly. . . . Only ‘serious un-
remedied unfair labor practices that affect the negotia-
tions’ will taint the asserted impasse.” Dynatron/Bondo
Corp., 333 NLRB 750, 752 (2001) (citations omitted)
(emphasis in original). Accordingly, we rely on only two
of the numerous unfair labor practices undisputedly
committed by the Respondent prior to its declaration of
impasse.3
First, we find that the Respondent’s unlawful failure to
make contractually-required payments to the Union’s
Health and Welfare Fund for several months not only
caused employees to lose their healthcare benefits, but

dent otherwise owes the fund. E.g., Cibao Meat Products, Inc., 349
NLRB 471, 471 fn. 4 (2007).
The General Counsel seeks compound interest computed on a quar-
terly basis for any backpay awarded. Having duly considered the mat-
ter, we are not prepared at this time to deviate from our current practice
of assessing simple interest. See, e.g., Glen Rock Ham, 352 NLRB 516
fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005).
3 The Respondent does not except to any of the judge’s unfair labor
practice findings other than his findings that the parties were not at
impasse, that it unlawfully implemented portions of its final contract
offer, and that its numerous preimpasse violations of multiple terms of
the parties’ now-expired collective-bargaining agreement (the agree-
ment) constituted a general repudiation of the Agreement. We affirm
the judge’s finding of general contract repudiation but find no need to
pass on whether this violation precluded impasse. We also do not rely
on the judge’s discussion of Republic Die & Tool Co., 343 NLRB 683
(2004). Member Liebman finds it unnecessary to pass on whether the
Respondent’s other unfair labor practices were sufficiently serious to
affect the negotiations.
The General Counsel cross-excepts to the judge’s dismissal of an
additional 8(a)(1) interrogation allegation and an additional 8(a)(5)
allegation that the Respondent blocked the Union’s access to a bulletin
board. We find no need to pass on the cross-exceptions inasmuch as
the finding of additional violations would be cumulative and would not
materially affect the remedy for the Respondent’s other uncontested
violations.
WILSHIRE PLAZA HOTEL 305
also contributed to the parties’ inability to reach an
agreement, by shifting the bargaining leverage on a key
economic issue in the negotiations, thereby precluding a
good-faith impasse. See Lafayette Grinding Corp., 337
NLRB 832, 833 (2002) (finding employer’s Health and
Welfare Fund payments were major issue in negotiations
and employer’s unlawful failure to make contributions to
maintain employees’ health coverage made it harder for
parties to reach agreement and precluded valid impasse).
Second, the Respondent failed to provide to the Union
admittedly relevant detailed calculations for the cost sav-
ings that the Respondent expected from its proposed
wage and benefit concessions that were “core” issues in
the negotiations. “[A] finding of valid impasse is pre-
cluded where the employer has failed to supply requested
information relevant to the core issues separating the
parties.” Caldwell Mfg. Co., 346 NLRB 1159, 1170
(2006) (emphasis added).
Based on the foregoing, we affirm the judge’s finding
that the parties were not at impasse on January 30, 2007,
and that the Respondent’s unilateral implementation of
portions of its final contract offer on February 1, 2007,
violated Section 8(a)(5) of the Act.4
ORDER
The National Labor Relations Board orders that the
Respondent, Majestic Towers, Inc. d/b/a Wilshire Plaza
Hotel, Los Angeles California, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Unilaterally implementing changes in the terms and
conditions of employment of the bargaining unit em-
ployees as provided for in the expired collective-
bargaining agreement (the agreement) without prior no-
tice to, and bargaining in good faith with, the Union to an
agreement or lawful impasse concerning any proposed
changes.
(b) Failing to timely remit monthly union dues, along
with related union dues information, to the Union as pro-
vided for in the agreement.
(c) Failing to make the required contributions to the
Health and Welfare and Retirement Funds, along with
related contribution reports, as provided for in the agree-
ment.

4 The Respondent and General Counsel have excepted to the judge’s
failure to analyze the parties’ bargaining conduct under the multifactor
test of Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395
F.2d 622 (D.C. Cir. 1968), to decide whether a bargaining impasse
existed even in the absence of unremedied unfair labor practices. We
find no need to do so inasmuch as the unfair labor practices discussed
above preclude the possibility of finding lawful impasse and obviate the
need for examining other aspects of the negotiations.
(d) Failing to process a grievance filed under the terms
of the agreement by refusing to furnish the Union with
relevant and necessary information necessary to support
the grievance.
(e) Denying the Union’s representatives access to the
Hotel as provided for in the agreement by threatening to
call the police, by summoning the police, or by orally
revoking access.
(f) Failing to furnish the Union with requested infor-
mation necessary for the Union’s performance of its col-
lective-bargaining duties, including: detailed calculations
of the cost of the Employer’s economic proposals made
during negotiations, information concerning the lawsuit
instituted by Radisson Hotels International against the
Employer, information concerning the differences in the
wage rates between the housekeeping and cook classifi-
cations, and a list of all unit employees, their names, job
titles, and wage rates.
(g) Failing to pay the unit employees their vacation
pay as provided for in the agreement.
(h) Prematurely declaring impasse and unilaterally im-
plementing new terms and conditions of employment
prior to reaching a lawful impasse in collective-
bargaining negotiations.
(i) Repudiating the agreement by failing to comply
with the terms and conditions of the agreement, includ-
ing delaying remittance of union dues and related infor-
mation, failing to make required contributions and sub-
mit related reports to the Funds, and denying union rep-
resentatives access to the Hotel, pursuant to the agree-
ment.
(j) Unilaterally eliminating the daytime shift in the
lobby bar.
(k) Unilaterally implementing an employee locker in-
spection policy.
(l) Unilaterally implementing a kitchen employees’
lunchbreak policy.
(m) Dealing directly with bargaining unit employees
and bypassing the Union as the collective-bargaining
representative of those employees.
(n) Informing employees, orally or in writing, that they
were selected for random locker inspections, or perform-
ing said inspections.
(o) Informing kitchen employees, orally or in writing,
of a change in their lunchbreak policy, and by threaten-
ing them with discipline for refusing to sign a copy of the
new policy.
(p) Engaging in surveillance and/or creating the im-
pression of surveillance of bargaining unit employees by
following and observing union representatives as they
walked through the Hotel in an effort to contact members
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD306
of the bargaining unit and as they proceed to meet with
bargaining unit members to discuss union business.
(q) Engaging in surveillance and/or creating the im-
pression of surveillance of bargaining unit employees by
observing and taking pictures of union representatives
and bargaining unit employees as they met to discuss
union business, and as they participated in a collective
demonstration outside the front of the Hotel.
(r) Interrogating employees regarding their union ac-
tivity.
(s) Threatening employees with termination for going
on strike.
(t) Making a statement indicating that union represen-
tation would be futile.
(u) Informing employees that their wages and/or bene-
fits were reduced because of the Union.
(v) Prohibiting employees from speaking with each
other regarding their terms and conditions of employ-
ment.
(w) Offering to give bargaining unit employees money
so that they would investigate the Union.
(x) Soliciting employee complaints and grievances,
and promising employees increased benefits and im-
proved terms and conditions of employment if they were
to renounce the Union
(y) Threatening employees with adverse consequences
because of their union activity.
(z) Telling employees to prepare a letter to the Union
renouncing their support of the Union.
(aa) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request of the Union, rescind any and all
changes to unit employees’ terms and conditions of em-
ployment implemented during and after February 1, 2007
and maintain the previous terms and conditions unless
and until the parties bargain in good faith to an agree-
ment or lawful impasse concerning any proposed
changes thereto, and make unit employees whole, with
interest, for any losses suffered as a result of those uni-
lateral changes.
(b) Prior to making any changes in wages, hours, and
terms of conditions for employees in the following ap-
propriate bargaining unit, meet and bargain in good faith
with the Union as the exclusive collective-bargaining
representative of those employees and, if an understand-
ing is reached, embody such understanding in a signed
agreement:
All full-time and regular part-time cooks, pantry em-
ployees, dishwashers, deli attendants, waiters, bussers,
room service employees, banquet employees, bartend-
ers, restaurant cashiers, stewarding department em-
ployees, housekeeping department employees, laundry
attendants, front office attendants, PBX attendants, res-
ervation agents, bell attendants, and others listed in
schedule A in the expired agreement. Excluded: Office
clerical employees, all other employees, guards and su-
pervisors as defined in the Act.
(c) Furnish the Union with requested information
which is relevant and necessary to carrying out its collec-
tive-bargaining responsibilities, including fulfilling the
outstanding union requests for information concerning:
(i) the Employer’s housekeeping and cook wage rate
proposal requested on February 12, 2007; (ii) the Em-
ployer’s cost-savings calculations for its economic pro-
posals requested on January 16 and 25, 2007; and (iii)
the lawsuit filed by the Radisson Hotel against the Em-
ployer requested on January 30, 2007.
(d) Timely remit to the Union monthly dues deducted
from employees’ paychecks, and the monthly lists of
employees who have paid union dues.
(e) Make all delinquent Health and Welfare Fund and
Retirement Fund contributions on behalf of employees
that have not been made since August 2006, and make
whole employees for out of pocket medical expenses or
any other expenses ensuing from the failure to make the
required fund contributions, and provide all required
monthly contribution reports to the Funds, as provided
for in the agreement.
(f) Permit union representatives access to the Hotel to
meet with employees as provided for in the agreement.
(g) Upon request of the Union, rescind the changed
employee random locker search policy.
(h) Upon request of the Union, process the grievance
filed by the Union on September 25, 2006, regarding the
Employer’s failure to make the contractually required
contributions to the Funds, and provide the Union with
the information it requested on September 25, 2006, re-
lated to that grievance.
(i) Make whole any unit employees who were deprived
of vacation pay when they took their accrued vacations
under the terms of the agreement.
(j) Upon request of the Union, rescind the February 14,
2007 memorandum changing its kitchen employees’
lunchbreak policy.
(k) Upon request of the Union, restore the lobby bar
day shift that the Respondent unilaterally eliminated.
(l) Within 14 days from the date of this Order, offer
any employee laid off as a result of the elimination of the
lobby bar day shift full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
WILSHIRE PLAZA HOTEL 307
other rights or privileges previously enjoyed, and make
whole any such employee for any losses suffered as a
result of the elimination of that shift.
(m) Within 14 days of this Order, remove from its files
any photographs or videotapes of employees speaking
with union representatives or engaging in peaceful union
or other protected concerted activity, and any photo-
graphs or videotapes of employees picketing in front of
the Hotel.
(n) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(o) Within 14 days after service by the Region, post at
its Hotel in Los Angeles, California, copies of the at-
tached notice marked “Appendix,”5 in both English and
Spanish. Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days 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 cov-
ered by any other material. Further, a management rep-
resentative shall read the notice in the presence of em-
ployees on work time, or be present while a Board agent
reads the notice in English, and simultaneously be trans-
lated into Spanish. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent 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 August 2006.
(p) Within 21 days after service by the Region, file
with the Regional Director for Region 31, a sworn certi-
fication of a responsible official on a form provided by
Region 31 attesting to the steps the Respondent has taken
to comply.

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT repudiate the collective-bargaining
agreement with UNITE HERE! Local 11, UNITE HERE
International Union by failing to comply with the terms
and conditions of that agreement.
WE WILL NOT refuse to bargain collectively by unilater-
ally implementing our final contract offer made on Feb-
ruary 1, 2007 to UNITE HERE! Local 11, UNITE HERE
International Union.
WE WILL NOT unilaterally implement changes in the
terms and conditions of your employment provided in the
expired collective-bargaining agreement with the Union.
WE WILL NOT fail to make contributions to the Health
and Welfare and Retirement Funds, along with related
contribution reports, as provided for in the agreement.
WE WILL NOT fail to process grievances filed under the
terms of the agreement, by refusing to furnish the Union
with relevant and necessary information necessary to
support the grievances.
WE WILL NOT deny union representatives access to the
Hotel as provided for in the agreement by summoning
the police, by threatening to do so, or by revoking access.
WE WILL NOT fail to furnish the Union with requested
information necessary for the Union’s performance of its
collective-bargaining duties.
WE WILL NOT unilaterally eliminate the daytime shift in
the lobby bar.
WE WILL NOT unilaterally implement an employee
locker inspection policy.
WE WILL NOT unilaterally implement a kitchen em-
ployees’ lunchbreak policy or threaten them with disci-
pline for refusing to sign a copy of the new policy.
WE WILL NOT bargain directly with you, thereby, by-
passing the Union as your collective-bargaining repre-
sentative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD308
WE WILL NOT engage in surveillance by observing,
photographing, or videotaping you as you meet with
other employees and with union representatives to dis-
cuss union business.
WE WILL NOT engage in surveillance by observing,
photographing, or videotaping you as you participate in a
collective demonstration in front of the Hotel.
WE WILL NOT interrogate you regarding your union ac-
tivity.
WE WILL NOT threaten you with termination for going
on strike.
WE WILL NOT make statements to you designed to con-
vince you of the futility of representation by the Union.
WE WILL NOT inform you that the reason your wages
and benefits were reduced was that the Union represents
you.
WE WILL NOT prohibit you from speaking with fellow
employees about your wages, hours, working conditions,
or other terms and conditions of employment.
WE WILL NOT offer to pay you to investigate the Union.
WE WILL NOT solicit complaints and grievances from
you and promise to improve your terms and conditions of
employment if you will renounce the Union.
WE WILL NOT threaten you with discipline for refusing
to sign a memo regarding an unlawfully instituted
lunchbreak policy.
WE WILL NOT threaten you with an adverse conse-
quence because of your union activity.
WE WILL NOT tell you to submit a letter to the Union
renouncing your support.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, upon request by the Union, rescind any uni-
lateral changes that we have implemented in your terms
and conditions of employment.
WE WILL, prior to making any changes in wages, hours,
and terms of conditions for employees in the following
appropriate bargaining unit, meet and bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in that unit and, if an understand-
ing is reached, embody such understanding in a signed
agreement:
Included: All full-time and regular part-time cooks,
pantry employees, dishwashers, deli attendants, wait-
ers, bussers, room service employees, banquet employ-
ees, bartenders, restaurant cashiers, stewarding depart-
ment employees, housekeeping department employees,
laundry attendants, front office attendants, PBX atten-
dants, reservation agents, bell attendants, and others
listed in schedule A in the expired agreement. Ex-
cluded: Office clerical employees, all other employees,
guards and supervisors as defined in the Act.
WE WILL make whole, with interest, any of you who
were adversely affected by the unilateral changes that we
implemented.
WE WILL provide the Union with requested information
which is relevant and necessary to carry out its collec-
tive-bargaining responsibilities, including fulfilling all
outstanding union requests for such information.
WE WILL submit to the Union all monthly dues that we
have deducted from your paychecks, and the monthly list
of employees who have paid union dues.
WE WILL resume timely payments and restore retroac-
tive payments to the Health and Welfare and Retirement
Funds, with interest, and provide all required monthly
contribution reports to the Funds, as set forth in the
agreement.
WE WILL reimburse, with interest, any of you who in-
curred out-of-pocket medical or other expenses because
of our discontinuation of contributions to the Funds.
WE WILL, upon request of the Union, process the griev-
ance filed by the Union on September 25, 2006, regard-
ing our failure to make the contractually required contri-
butions to the Funds, and WE WILL provide the Union
with the information it requested on September 25, 2006,
related to that grievance.
WE WILL permit union representatives access to the
Hotel as provided for in the agreement.
WE WILL pay you for your accrued vacation time as
provided for in the agreement.
WE WILL, upon request by the Union, reinstate the day-
time shift in the lobby bar.
WE WILL, within 14 days from the date of the Board’s
Order, offer any employee laid off as a result of the
elimination of the lobby bar day shift full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed, and make whole, with interest, any such employee
for any losses suffered as a result of the elimination of
that shift.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any photographs or video-
tapes of you speaking with union representatives or en-
gaging in peaceful union or other protected concerted
activity, and any photographs or videotapes of you pick-
eting in front of the Hotel.
MAJESTIC TOWERS, INC. D/B/A WILSHIRE PLAZA
HOTEL
WILSHIRE PLAZA HOTEL 309
Anne J. White, Esq. and Joanna F. Silverman, Esq., for the
General Counsel.
Joseph E. Herman, Esq., of Los Angeles, California, for the
Respondent.
Kristin L. Martin, Esq., of San Francisco, California, for the
Union.
Henry M. Willis, Esq., of Los Angeles, California, for the
Funds.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in Los Angles, California, on
October 15–19 and 23–26, and November 26–28, 2007.
UNITE HERE! Local 11, UNITE HERE! International Union
(the Union) filed unfair labor practice charges in Cases 31–CA–
28135, 31–CA–28144, 31–CA–28196, 31–CA–28247, 31–CA–
28248, 31–CA–28249, 31–CA–28250, 31–CA–28257, 31–CA–
28487, and 31–CA–28490. The Los Angeles Hotel-Restaurant
Employer-Union Welfare Fund, the Los Angeles Hotel-
Restaurant Employer-Union Retirement Fund, and the Legal
Fund of Hotel and Restaurant Employees of Los Angeles (the
Funds) filed an unfair labor practice charge in Case 31–CA–
28143. Based on those charges, the Regional Director for Re-
gion 31 of the National Labor Relations Board (the Board)
issued two separate complaints on June 26 and November 6,
2007, respectively.1 The two complaints collectively allege
that Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel (the Em-
ployer, the Respondent, or the Hotel) violated Section 8(a)(1),
(3), and (5) of the National Labor Relations Act (the Act). The
Respondent filed timely answers to both complaints denying
the commission of the alleged unfair labor practices.2 On No-
vember 26, 2007, over counsel for the Respondent’s objection,
I granted counsel for the General Counsel’s motion to consoli-
date the charges contained in the two complaints for trial before
me.3 Accordingly, I heard evidence at the trial regarding all the
charges in the above captioned cases.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs.4 Based upon the record, my consideration

1 The two complaints set forth the various dates on which the respec-
tive charges were filed. The Respondent’s answers to the complaints
admit the alleged filing dates.
2 All pleadings reflect the two complaints and the Respondent’s re-
spective answers as those documents were finally amended.
3 The charges were all alleged in the earlier complaint, with the ex-
ception of those charges in Cases 31–CA–28487 and 31–CA–28490,
which were alleged in the latter complaint. I consolidated all these
cases for trial as they involved the same parties, factually and legally
related events, similar alleged violations of the Act, in the interest of
judicial economy, and because I concluded to do so would not preju-
dice the Respondent.
4 At the time of the hearing, counsel of record for the Union was
Jasleen Kohli, who appeared and participated at the hearing. However,
subsequently, Kohli withdrew as counsel, to be replaced by Kristin L.
Martin. Further, at the time of the hearing, counsel of record for the
Respondent was Andrew B. Kaplan and Jeffrey Mayes, who appeared
of the briefs filed by counsels for the General Counsel, the
Respondent, and the Funds,5 and my observation of the de-
meanor of the witnesses, I now make the following6
FINDINGS OF FACT
I. JURISDICTION
All parties stipulated and I find that at all times material, the
Respondent, a California corporation, with an office and place
of business at 3515 Wilshire Boulevard, Los Angeles, Califor-
nia, has managed and operated a hotel facility at that location,
which provides food and lodging to the public. Further, that
during the calendar year ending December 31, 2006, the Re-
spondent, in conducting its business operations, derived gross
revenues in excess of $500,000; and that during the same pe-
riod of time the Respondent purchased and received at its facil-
ity, products, goods, and materials valued in excess of $5000,
directly from points located outside the State of California. (Jt.
Exh. 1, Stipulation of Facts.)
Accordingly, I conclude that the Respondent is now, and at
all times material has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaints allege, the answers admit, and I find that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. STIPULATED BACKGROUND FACTS
All parties stipulated to the following set of facts, which
stipulation was received into evidence as Joint Exhibit 1:
Prior to September 21, 2005, L A Koreana, Inc. (Koreana),
owned and operated a hotel located at 3515 Wilshire Boule-
vard, Los Angeles, California, which conducted business as the
Radisson Wilshire Plaza Hotel and which provided food and
lodging to guests. On or about September 21, 2005, the Lee
2003 Family Trust purchased the land and building on and in
which Koreana did business as the Radisson Wilshire Plaza
Hotel. Since on or about September 21, 2005, until an un-
known date, the Respondent also conducted business as the
Radisson Wilshire Plaza Hotel.
Since an unknown date, the Respondent now does business
as the Wilshire Plaza Hotel (the Respondent’s facility) on the
same land and in the same building in which Respondent previ-

and participated at the hearing. Subsequently, Joseph E. Herman was
substituted as counsel of record.
5 Following the receipt of briefs from the parties, counsel for the
General Counsel filed with me a Motion to File Reply Briefs. As the
Board’s Rules and Regulations do not provide for the filing of reply
briefs with the administrative law judge, and because the filing of such
reply briefs are unnecessary in this case, I deny counsel for the General
Counsel’s motion.
6 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD310
ously did business as the Radisson Wilshire Plaza Hotel. On or
about September 21, 2005, the Lee 2003 Family Trust entered
into a lease agreement with the Respondent, whereby the Re-
spondent leased the building and the land described above.
Since then, the Respondent has continued to operate the busi-
ness in basically unchanged form. The Respondent employed
as a majority of its employees individuals who were previously
employed by Koreana.
At all times material, the Respondent has managed and oper-
ated the Respondent’s facility, which provides food and lodging
to the public. Based on the operations described above, the
Respondent has continued as the employing entity and is a
successor to Koreana.
Certain employees of the Respondent constitute a unit (the
unit) appropriate for the purposes of collective-bargaining
within the meaning of Section 9(b) of the Act.7
At all material times from April 16, 2004, until about Sep-
tember 20, 2005, the Union claims that it was the designated
exclusive collective-bargaining representative of the unit em-
ployed by Koreana and the Union was recognized as the repre-
sentative by Koreana. This recognition was embodied in the
collective-bargaining agreement (the agreement) effective for
the period from April 16, 2004, through April 16, 2006 (Jt.
Exh. 2). At all times from April 16, 2004, until about Septem-
ber 20, 2005, based upon the Union’s representation, and based
on Section 9(a) of the Act, the Union was the exclusive collec-
tive-bargaining representative of the unit employed by Kore-
ana.
About September 21, 2005, the Respondent assumed the
agreement. At all times since about September 21, 2005, the
Union has been the designated exclusive collective-bargaining
representative of the unit employed by the Respondent and the
Union has been recognized as that representative by the Re-
spondent. This recognition has been embodied in the agree-
ment (Jt. Exh. 2), which was effective for the period from April
16, 2004, through April 12, 2006, and extended through De-
cember 24, 2006. At all times since about September 21, 2005,
based on Section 9(a) of the Act, the Union has been the exclu-
sive collective-bargaining representative of the unit employed
by the Respondent.
The stipulation contains other facts, agreed to by the parties
and, thus, not in dispute, which facts will be set forth later in
this decision, as the evidence and the respective positions of the
parties are discussed.

7 The unit:
Included: All full-time and regular part-time cooks, pantry
employees, dishwashers, deli attendants, waiters, bussers, room
service employees, banquet employees, bartenders, restaurant
cashiers, stewarding department employees, housekeeping de-
partment employees, laundry attendants, front office attendants,
PBX attendants, reservation agents, bell attendants, and others
listed in Schedule A in the collective-bargaining agreement be-
tween the Respondent and the Union effective for the period April
16, 2004, through April 16, 2006, and extended through Decem-
ber 24, 2006, employed at the Respondent’s Wilshire Plaza facil-
ity in Los Angeles, California.
Excluded: Office clerical employees, all other employees,
guards and supervisors as defined in the Act.
IV. ALLEGED UNFAIR LABOR PRACTICES
A. An Overview/Position of the Parties
In its two complaints, the General Counsel has alleged that
the Respondent has committed a very significant number of
unfair labor practices. Without explicitly saying so, counsel for
the General Counsel is contending that the Respondent has
engaged in an organized effort to have the Union removed as
the collective-bargaining representative of its employees. Ac-
cording to the General Counsel, this effort began with the
commission of numerous unfair labor practices by the Respon-
dent before and during the period of time that the parties were
engaged in contract negotiations. It is alleged that these unfair
labor practices had a pervasive and adverse effect on the bar-
gaining process, which casual connection to the bargaining
negotiations resulted in the parties’ failure to reach an agree-
ment on a successor contract. It is the Government’s position
that in the context of these significant unremedied unfair labor
practices, no valid impasse in negotiations could be reached.
Therefore, for that reason alone, the General Counsel contends
that the Respondent’s declaration of impasse and institution of
its last contract offer constituted an unlawful implementation of
unilateral changes.
However, as an alternate and second basis for concluding
that the Respondent’s institution of its last contract offer was an
unlawful implementation of unilateral changes, the General
Counsel contends that the Respondent and the Union had not
reached a genuine impasse in their bargaining negotiations.
Thus, even without the effect of the alleged unfair labor prac-
tices on the negotiations, the parties allegedly still had the ca-
pacity to compromise and were not at the end point where all
further negotiations would constitute an exercise in futility.
The General Counsel argues that the Union had made signifi-
cant concessions in its bargaining position, and had indicated to
the Respondent a willingness to make further concessions.
Such an attitude in negotiations allegedly is not indicative of
impasse.
Finally, counsel for the General Counsel contends that fol-
lowing the implementation of its last contract offer, the Re-
spondent continued with its effort to eliminate the Union by
committing numerous unfair labor practices. These unfair labor
practices allegedly demonstrated the Respondent’s animus
towards the Union, its intent to undermine the Union’s author-
ity, and its clear motivation to rid itself of the Union as the
collective-bargaining representative of its employees.
Counsel for the Funds indicated in his posthearing brief his
agreement with the General Counsel’s theory of the case. Fur-
ther, while counsel for the Union did not file a posthearing
brief, the indication from her comments at trial were that she
also agreed with the positions taken by the General Counsel.
Counsel for the Respondent does not deny that certain pre-
impasse unfair labor practices occurred. However, counsel
argues that any such unfair labor practices were isolated inci-
dents, occurred away from the bargaining table, and were
committed primarily by persons who acted without the direc-
tion or supervision of senior management. Most significantly,
counsel contends that any such unfair labor practices were not
related to the conduct at the negotiations, and did not influence
WILSHIRE PLAZA HOTEL 311
or affect the result that a legitimate impasse was reached be-
tween the negotiating parties. It is alleged that such a lawful
impasse allowed the Respondent to implement its “last, best,
and final offer.” Finally, the Respondent’s attorneys deny that
any postimpasse unfair labor practices were committed by the
Respondent’s agents.
It is the position of counsel for the Respondent that all the
Respondent’s actions taken and proposals made at the negotia-
tion table were in good faith, and were driven solely by its dire
financial situation. Allegedly, the Respondent was losing a
significant amount of money, and in order to survive financially
required a collective-bargaining agreement that resulted in large
cost savings for the Respondent. This was the Respondent’s
theme throughout the negotiation process, which included 10
face-to-face negotiation sessions. The Respondent used every
opportunity to remind the Union’s negotiators that it would
need concessions from the Union in order to reach agreement
on a new contract. However, according to counsel for the Re-
spondent, the Union never offered concessions, but, rather,
always insisted on contract terms and conditions that cost the
Respondent more than it was currently paying. Upon reaching
a point in negotiations where compromise no longer appeared
possible, the Respondent declared impasse and instituted por-
tions of its last, best, and final offer. The Respondent denies
any intention or interest in ridding itself of the Union.
It should be noted that the chief negotiator for the Union was
Tom Walsh, the Union’s secretary-treasurer. The Respondent
was represented at the negotiations by its attorneys, Jeffrey
Mayes and Andy Kaplan. The principal negotiator for the Re-
spondent was Kaplan, who also testified at the hearing on be-
half of his client.8
What follows is a discussion and analysis of the unfair labor
practices alleged in the two complaints. For the most part, I
will attempt to address these issues in chronological order, with
three natural divisions: preimpasse conduct, negotiation/im-
passe, and postimpasse conduct.
B. Preimpasse Conduct
1. Delay in remitting dues and related information
As noted above, the collective-bargaining agreement (the
agreement) between the Union and the Respondent was set to
expire on April 16, 2006.9 Andy Kaplan (Kaplan), counsel for
the Respondent, testified that he contacted the Union sometime
before that date in an effort to get negotiations started before
the expiration of the agreement. On about April 15, representa-
tives of the Union and the Respondent met at the offices of a
Los Angeles, California city councilman. The parties discussed
the nearness of the agreement’s expiration date, and they
agreed upon an extension of the agreement. While it is unclear
for how long the agreement was initially extended, ultimately it
was extended through December 24. According to Kaplan, he
informed all present that the Employer was “anxious” to begin
negotiations. However, for whatever reason, actual contract

8 Before testifying, I advised Kaplan that his testimony would be
subject to credibility determinations just as it would be for any wit-
nesses. In response, he indicated that such was as it should be.
9 All dates are in 2006, unless otherwise indicated.
negotiations did not begin for some time. In the interim, the
Respondent took a number of actions, which counsel for the
Respondent does not deny were taken unilaterally and in viola-
tion of various provisions of the agreement.
The parties stipulated that “prior to December 24, 2006, the
Respondent was required under section 2(J) of the agreement to
deduct monthly union dues and to remit these dues, along with
related union dues information, to the Union.” (Jt. Exh. 1, p. 8,
par. 10(a).) In that stipulation, the Respondent admitted that it
did not remit the August dues until October 13, 2006; that it did
not remit the September dues until November 29, 2006; and
that it did not remit dues for the months of October and No-
vember 2006 until May 9, 2007. (Jt. Exh. 1, pp. 8–9, pars.
10(b–d); Jt. Exhs. 5–7.)
Further, the parties stipulated that prior to December 24,
2006, section 2(J) of the agreement required the Respondent to
provide the Union with “information concerning the Respon-
dent’s deduction of monthly Union dues, including the name of
each employee for whom dues have been deducted and the
amount of dues deducted.” (Jt. Exh. 1, p. 9, par. 10(e).) Also,
the parties stipulated that these dues and the reporting of related
information was “necessary for, and relevant to, the Charging
Party Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the Unit.” (Jt. Exh. 1, p. 9,
par. 10(f).) In that stipulation, the Respondent admitted that it
failed to furnish the Union with the monthly dues information
for August 2006 until about March 22, 2007; that it failed to
furnish the Union with monthly dues information for the month
of September 2006 until December 13, 200710; and that it failed
to furnish the Union with monthly dues information for the
months of October and November 2006 until April 10, 2007.
(Jt. Exh 1, pp. 9–10, pars. 10(g–i); Jt. Exh. 8–11.)
Paragraph 7 of the first complaint alleges that the Respon-
dent violated Section 8(a)(5) of the Act by delaying in remitting
employee union dues deductions and related reporting informa-
tion. The undisputed facts, as set forth in the stipulation, estab-
lish this violation. “It is well established that an employer vio-
lates Section 8(a)(5) by ceasing to deduct and remit dues in
derogation of an existing contract.” Hearst Corp. Capitol
Newspaper Div., 343 NLRB 689, 693 (2004); citing Shen-Mar
Food Products, 221 NLRB 1329 (1976). Further, “it is well
settled that each monthly failure to deduct and remit dues to the
Union [is] a separate violation of the Act.” MBC Headwear,
Inc., 315 NLRB 424, 428 (1994), citing Farmingdale Iron
Works, 249 NLRB 98 (1980). It is longstanding Board law that
an employer’s refusal to properly “tender dues withheld from
employee paychecks under a valid dues-checkoff authorization
constitutes a unilateral change in terms and conditions of em-
ployment in violation of Section 8(a)(5) of the Act.” Merry-
weather Optical Co., 240 NLRB 1213, 1215 (1979); Western
Block Co., 229 NLRB 482 (1977); Cavaler Spring Co., 193
NLRB 829 (1971).
As the stipulation shows, the Respondent deducted dues
from the unit employees’ paychecks, as provided for in the
agreement, and then admittedly failed to remit those dues to the

10 This appears to be a typographical error, which should read De-
cember 13, 2006.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD312
Union in a timely manner. Similarly, the Respondent failed to
timely furnish the Union with a list each month of those em-
ployees paying dues. Therefore, the General Counsel has es-
tablished that the Respondent violated Section 8(a)(5) of the
Act by delaying in remitting union dues owed from August
through November 2006, and by unreasonably delaying in
submitting to the Union a monthly accounting of the unit em-
ployees making those payments, as alleged in paragraph 7 of
the first complaint.
2. Failure to contribute to various runds and
submit related reports
Section 8(E) of the agreement requires the Respondent to
make payments and submit reports to the Health and Welfare
and Retirement Funds (the Funds). (Jt. Exh. 1, pp. 10–11, pars.
11(a–d).) In the stipulation, the parties state that, “until at least
January 31, 2007, Section 8(E) of the Agreement . . . required
the Respondent to provide a monthly Funds’ contribution report
to the Charging Party Funds simultaneously with the Respon-
dent’s monthly contribution to the Charging Party Funds.” The
Respondent admitted that it failed to make the required contri-
butions to the Funds as described in section 8(E) of the agree-
ment from August through December 2006, and, that as of the
date of the stipulation, those contributions had still not been
made to the Funds.11 Further, in the stipulation the Respondent
admitted that from September through December 2006 it failed
to furnish the Funds with monthly contribution reports for that
period. (Jt. Exh. 1, pp. 10–11, pars. 11(a–d).)
The Respondent admitted in the stipulation that, prior to Feb-
ruary 1, 2007, the contributions and reporting information that
the Respondent was required to provide to the Charging Party
Funds was “necessary for, and relevant to, the Charging Party
Union’s performance of its duties as the exclusive collective-
bargaining representative of the Unit.” (Jt. Exh. 1, p. 11, par.
11(d).)
According to the testimony of Rolly Throckmorton, the ad-
ministrative manager of the Funds, the Respondent’s “failure to
submit contributions to the Welfare Fund means that employees
that had worked the hours required for eligibility would not be
entitled to receive eligibility because the Welfare Fund rules
require that, in order for their work hours to go toward eligibil-
ity, the required contributions must be paid.” As an example,
Throckmorton testified that a failure by the Respondent to
make contributions on behalf of the employees into the Funds
would result in effected employees “los[ing] their entitlement
to hospital, medical, dental, and life insurance benefits . . .
[and] the Legal Fund benefits to which they would, otherwise,
be entitled.”
Paragraph 8 of the first complaint alleges that the Respon-
dent violated Section 8(a)(5) of the Act by failing to make con-
tractually required contributions on behalf of unit employees
into the Funds and by failing to submit related reports. The
undisputed facts set forth in the stipulation establish this viola-

11 According to the testimony of Rolly Throckmorton, the adminis-
trative manager for the Funds, the Respondent made one contribution to
the Funds for the month of January 2007 as part of a settlement agree-
ment reached between the Funds and the Respondent. (Also see GC
Exh. 20.)
tion. “It is well established Board law that an employer’s re-
fusal to make payments to an insurance or trust fund estab-
lished by a collective-bargaining agreement . . . constitutes a
unilateral change in terms and conditions of employment in
violation of Section 8(a)(5) and (1) of the Act.” Merryweather
Optical Co., supra at 1215.
It has been held by the Board that “the unilateral decision to
discontinue making benefit fund contributions, like the failure
to make periodic wage increases, constitutes a violation of Sec-
tion 8(a)(5) of the Act.” Farmingdale Iron Works, supra.
There is no question that the contractual payment by an em-
ployer of monies into a fund to provide medical insurance for a
covered employee and his/her family is an extremely important
term and condition of employment. To some employees such a
benefit may be more significant even than the wage compensa-
tion.
The Respondent’s admitted failure to make contributions to
the Funds for the period of August through December and to
submit related reports from September through December 2006
goes to the heart of the collective-bargaining relationship be-
tween the Employer and the Union and constitutes a violation
of Section 8(a)(5) of the Act, as alleged in paragraph 8 of the
first complaint.12
3. Refusal to process grievance and
furnish requested information
The agreement between the Union and Respondent contains
a grievance procedure for all “questions, grievances or contro-
versies pertaining to the application or interpretation of [the]
agreement.” (Jt. Exh. 1, p. 11, par. 12(a).) It is uncontested
that the Union was concerned about the failure of the Respon-
dent to make contractually required payments to the various
Funds. The matter was discussed between Andy Kaplan and
Union Representatives Oscar Salazar and Tom Walsh over the
bargaining table during negotiations. In addition, on September
25, 2006, Salazar sent by fax to Alex Delgado, alleged to be the
Employer’s general manager at the time, and Chamroeun Trini-
dad, the human resource/payroll coordinator and a stipulated
agent and supervisor, a letter indicating that the Union was
grieving the nonpayments to the Funds on behalf of the effected
unit employees. (R. Exh. 6; GC Exh. 14.) In order to prepare
to argue the grievance, the Union requested the following in-
formation: “1. A spreadsheet with all the names of the Union
employees, showing the hours worked and the dollar amount
applied for each employee to Health and Welfare for the last six
months. 2. Proof of payments to Health and Welfare for the
last six months.” The parties have stipulated that the requested
information was necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-bargaining
representative of the unit. (Jt. Exh. 1, p. 11, par. 12(b).)
Paragraph 9 of the first complaint alleges that since Septem-
ber 25, 2006, the Respondent has failed and refused to provide
the Union with the information it requested in connection with
the nonpayment to the Funds, and failed and refused to process

12 It should be noted that counsel for the General Counsel’s claim
that this violation of the Act continues to the present time as a conse-
quence of the Respondent’s unilateral implementation of its last con-
tract proposal will be addressed by the me later in this decision.
WILSHIRE PLAZA HOTEL 313
the grievance filed by the Union over this nonpayment, which
refusal is alleged in paragraph 31 to constitute a violation of
Section 8(a)(5) of the Act. Andy Kaplan did not deny that no
documents were forthcoming in response to the request. How-
ever, he contends that he had an agreement with Union Repre-
sentative Fred Pascual to take no further action on the griev-
ance until the parties had an opportunity to discuss the non-
payment issue at the bargaining table.
Kaplan acknowledges receiving a copy of the Salazar letter
dated September 25 from Alex Delgado. He testified that he
called Pascual and discussed the grievance with him over the
telephone. Kaplan claims that Pascual agreed with him that the
issue of nonpayment to the Funds “would most certainly be
dealt with at the bargaining table and we agreed, therefore, that
the Hotel not take any further action with respect to the griev-
ance, unless and until Mr. Pascual would call me and tell me to
the contrary.” According to Kaplan, subsequently he has never
been contacted by anyone with the Union about this grievance.
Kaplan testified that he made a contemporaneous memorializa-
tion of his conversation with Pascual by writing on his copy of
the September 25 letter from Salazar to Delgado the following:
“Spoke to Fred Pascual-9-25, Union not pursuing this unless he
calls me.” (R. Exh. 6.)
Fred Pascual was at the time of the events in question the di-
rector of hotels for the Union. I found his testimony regarding
the grievance issue somewhat contradictory. He was shown a
copy of the September 25 letter from Salazar to Trinidad (GC
Exh. 14), and he indicated that he was familiar with the docu-
ment, having seen it previously. Initially, when examined by
counsel for the General Counsel, Pascual testified clearly that
he had never indicated to any representative of the hotel, in-
cluding Andy Kaplan, in any fashion that the Union did not
wish to pursue the grievance, or was withdrawing the griev-
ance. However, on cross-examination Pascual was less certain,
forced to admit that he presently had no recollection of talking
with Kaplan about any specific grievance the Union had filed
against the Employer. He could simply not remember any con-
versation with Kaplan specifically regarding the grievance
about nonpayment to the Funds, or about any other particular
grievance.
While Kaplan’s testimony, on the surface, certainly seems
more reliable than that of Pascual, it does not negate one final
written communication. On October 2, a week after the alleged
conversation between Pascual and Kaplan, Pascual faxed a
letter to Trinidad. The subject of the letter was “Non payment
of Health & Welfare and Retirement Funds.” In the letter, Pas-
cual writes, “Local 11 desires to take to arbitration the above-
mentioned grievance. Please contact me at your earliest con-
venience to select an arbitrator to hear this matter.” Further, it
appears from the fax receipt that the Respondent received the
communication. (GC Exh. 19.)
It is simply illogical that a week earlier Pascual agreed to
take no further action on the grievance until the parties had
discussed the matter over the bargaining table, and then sent the
Employer a letter seeking to select an arbitrator to hear the
dispute. Even assuming Pascual had made such a promise to
Kaplan, by October 2 he had clearly changed his mind and was
indicating the Union’s desire to go forward on the grievance.
Finally, it is very significant that Trinidad, the recipient of the
last communication, was not called as a witness by the Respon-
dent. The Respondent’s counsel offered no reason for the fail-
ure of Trinidad to testify, and I am left to draw an adverse in-
ference from her nonappearance.13 I will draw such an infer-
ence and conclude, based on the totality of the evidence, that by
at least October 2 it should have been clear to the Respondent
that the Union wished to have the grievance processed and
required the written information, which had been previously
requested of the Respondent in the letter of September 25.
In a recent case, Disneyland Park, 350 NLRB 1257 (2007),
the Board recited certain well-established legal principles re-
garding an employer’s obligation to provide requested informa-
tion to a union representing the employer’s employees. As the
Board said, “An employer has the statutory obligation to pro-
vide, on request, relevant information that the union needs for
the proper performance of its duties as collective bargaining
representative.” The Board cited to a number of Supreme
Court decisions including NLRB v. Truitt Mfg. Co., 351 U.S.
149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967); Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979). Further, the Board added that, “[t]his includes [infor-
mation needed for] the decision to file or process grievances,”
citing to Beth Abraham Health Services, 332 NLRB 1234
(2000).
As noted earlier, the parties stipulated that the information
requested by the Union in its letter of September 25, namely a
spreadsheet with all the names of the union employees, show-
ing the hours worked and the dollar amount applied for each
employee to Health and Welfare for the last 6 months and proof
of payments to Health and Welfare for the last 6 months, was
necessary for, and relevant to, the Union’s performance of its
collective-bargaining duties. Since there is no dispute that
these documents were necessary and relevant, I find that the
Respondent’s failure to produce them constitutes a violation of
Section 8(a)(5) of the Act, as alleged in paragraphs 9 and 31 of
the first complaint.
Further, under Board law, “it is well settled that an employer
is obligated . . . to meet with the employees’ bargaining repre-
sentative to discuss its grievances and to do so in a sincere ef-
fort to resolve them.” Contract Carriers Corp., 339 NLRB
851, 852 (2003), citing Hoffman Air & Filtration Systems, 316
NLRB 353, 356 (1995). Since being advised by the Union in
its correspondence of September 25 and again in its correspon-
dence of October 2 of its desire to grieve, and if necessary arbi-
trate, the nonpayment to the Funds, the Respondent has made
no effort to process the grievance. To the contrary, it has ob-

13 While the record does not conclusively establish that Trinidad her-
self actually received the October 2 communication or was even still
employed by the Respondent on that date, it appears highly likely as
Salazar testified that a day or two after sending Trinidad the letter of
September 25, he called Trinidad and discussed the grievance with her.
According to Salazar, Trinidad acknowledged receipt of the fax, but
indicated that she was presently unavailable to meet with him and dis-
cuss the grievance at length. As the October 2 letter from Pascual
appears to have been faxed to the same fax number as the earlier com-
munication, and as there is a fax receipt for that communication, I will
assume that Trinidad received it as well. (GC Exh. 19.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD314
structed the process by failing to produce the written informa-
tion requested by the Union and necessary for it to prepare to
argue the merits of the grievance. Accordingly, I find that the
Respondent’s failure and refusal to process the grievance is a
violation of Section 8(a)(5) of the Act, as alleged in paragraphs
9 and 31 of the first complaint.14
4. Locker searches
It is alleged in paragraphs 16, 31, and 32 of the first com-
plaint that the Respondent violated Section 8(a)(1), (3), and (5)
of the Act by its unilateral implementation of a new locker
search policy and its subsequent discriminatory search of the
lockers of four employees. The four employees involved,
Griselda Campos, Susana Serrano, Maria Carrillo, and Ofelia
Calderon, were employed by the Respondent as housekeepers
and all testified at the hearing.
In the joint stipulation, the Respondent admitted that prior to
September 27, 2006, it did not have a policy governing random
employee locker inspections. In the stipulation, the Respondent
acknowledged that on September 27, Chamroeun Trinidad (at
the time the human resources/payroll coordinator and an admit-
ted supervisor and agent) issued a memorandum to employees
regarding the Respondent’s policy on “Random Selection for
Locker Inspection.” (Jt. Exh. 15.) Further, the Respondent
admitted that on September 28, Trinidad implemented the new
policy concerning random employee locker inspections by noti-
fying employees Campos, Serrano, Carrillo, and Ofelia that
they were selected for the locker inspections. (Jt. Exh. I, pp.
14–15, pars. 19(a)–(c).)
Campos testified that in late September a number of employ-
ees learned that they had lost their medical insurance coverage.
They only learned this when they sought medical care and were
denied treatment as no longer being eligible under the terms of
the medical plan funded in part from contributions by the Re-
spondent through the Employer-Union Welfare Funds. As
previously noted, I have concluded that the Respondent’s action
in unilaterally ceasing to make contractually required contribu-
tions to the Funds constituted a violation of Section 8(a)(5) of
the Act. Apparently as a result of the Respondent having
ceased making fund contributions on behalf of the unit employ-
ees, those employees were losing their health insurance bene-
fits. Campos, who was at the time the union steward, indicated
that the employees were very upset upon learning that they no
longer had medial insurance. A number of them decided to
confront Chamroeun Trinidad over this matter.
On September 27 at about 2 p.m. a group of employees
formed at Trinidad’s office. Campos estimated the number of
employees at 25–30. According to Campos, she and Susan
Serrano acted as spokespersons for the group. Maria Carrillo
was also part of the group. Campos informed Trinidad that the
employees wanted to talk with her about their medical insur-
ance, and approximately 15 employees were allowed into the
office.

14 There is no dispute that the Union filed the grievance while the
Agreement was in effect, and, in any event, Board law is clear that the
contractual grievance procedure survives the expiration of the contract.
Southwest Portland Cement Co., 289 NLRB 1264, 1279 (1988), citing
Shipbuilders v. NLRB, 320 F.2d 615, 619–620 (3d Cir. 1963).
Campos asked Trinidad why the Employer had stopped pay-
ing for their medical insurance. Serrano testified that she ex-
plained to Trinidad the serious impact the loss of insurance was
having on the employees. She gave Trinidad the examples of a
female employee with breast cancer, of others with high blood
pressure and diabetes, and of her personal problem with kidney
stones. Serrano and Campos insisted that the employees
needed their medical insurance and wanted it restored. Trini-
dad responded that she had been unaware that employees were
being denied medical treatment, and she would find out what
the problem was with the medical insurance. She promised to
respond to the employees’ concerns within 3 days.
The following day, September 28, Campos, Serrano,
Carrillo, and Ofelia Calderon were summoned to Trinidad’s
office. Of the four, Calderon was the only one who had not
participated in the protest the day before regarding their loss of
medical insurance. In any event, Trinidad gave at least two of
them, Campos and Serrano, a copy of her memo regarding
“Random Selection For Locker Inspection.” (Jt. Exh. 15.)
They were apparently all told that they had been randomly
selected, and that each was going to have her locker searched to
see if weapons or drugs were present.
Trinidad, along with a security guard, then escorted the four
employees to their lockers, which were located inside the fe-
male employees’ bathroom. Each locker was then individually
searched by Trinidad in the presence of the security guard and
the one employee whose locker was being searched. No guns
or drugs were found in any of the lockers, and as the search of
each locker was completed, that employee was released to re-
turn to work.
Trinidad’s memo of September 27 is signed by her as the
“H.R./Payroll Coordinator.” In pertinent part it reads, “We are
going to conduct random locker inspections. The purpose of
this exercise is to deter drugs, and weapons from entering the
property. You have been chosen to do a random locker inspec-
tion.” It appears that none of the four employees had ever pre-
viously had any incidents at work involving drugs or weapons.
Nothing improper was found in their lockers, and no discipline
resulted from the searches.
As noted, the Respondent stipulated that prior to the Sep-
tember 27 memo, the Respondent had no policy regarding ran-
dom locker searches. As Trinidad did not testify at the hearing,
the testimony of the four employees involved in the search
remains unrebutted. While not denying that the memo issued
or that the searches were conducted, counsel for the Respon-
dent seems to suggest in his posthearing brief that Trinidad’s
actions were taken without the knowledge or consent of upper
management. Further, counsel argues that the searches were
random and not connected to or in retaliation for the union or
protected concerted activity of the employees selected for the
search. Counsel claims that of the four employees selected,
two were not involved in the protest in Trinidad’s office, and
that the only connection to that protest was the proximity in
time to the locker searches.
To begin with, counsel is wrong about the number of
searched employees who attended the protest the day before.
From their testimony, it seems that only Calderon was unin-
volved in the protest. Further, I am at a loss to understand what
WILSHIRE PLAZA HOTEL 315
difference it makes whether upper management was aware of
Trinidad’s actions or not. The Respondent has admitted that
Trinidad was its agent and supervisor. Certainly, her position
as H.R./Payroll Coordinator was an important one, especially as
it related to the unit employees with whom her contacts would
likely have been common, and significant to those employees
involved.
Union Representative Salazar testified that he was never
given the opportunity by the Respondent to bargain over a new
locker search policy, nor did the Respondent ever advise him
that it was implementing such a new policy.15 The Respondent
offered no evidence to rebut Salazar, or to establish that some
other union representative was afforded such an opportunity or
was advised of the search policy prior to its implementation.
Thus, the evidence clearly establishes that the Respondent
failed to bargain with the Union before unilaterally implement-
ing its new locker search policy, and, thereafter, searching the
lockers of Campos, Serrano, Carrillo, and Calderon. Accord-
ingly, by those actions the Respondent violated Section 8(a)(1)
and (5) of the Act, as alleged in paragraphs 16 and 31 of the
first complaint. ATC/Vancom of California, L.P., 338 NLRB
1166 (2003).
Further, I believe that the Respondent took the action of issu-
ing the “Random Selection For Locker Inspection” memo and
subsequent search of the four employees’ lockers in retaliation
for the employees’ union and protected concerted activity in
protesting the elimination of their medical insurance. In assess-
ing whether Respondent’s action violated Section 8(a)(3) of the
Act, it is necessary to analyze the situation under the shifting
analysis burden of Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
In Wright Line, the Board announced the following causation
test in all cases alleging violations of Section 8(a)(3) or viola-
tions of 8(a)(1) turning on employer motivation. First, the
General Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating
factor” in the employer’s decision. This showing must be by a
preponderance of the evidence. Then, upon such a showing,
the burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct. The Board’s Wright Line test was approved by
the United States Supreme Court in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
The Board in Tracker Marine, L.L.C., 337 NLRB 644
(2002), affirmed the administrative law judge who evaluated
the question of the employer’s motivation under the framework
established in Wright Line. Under that framework, the General
Counsel must establish four elements by a preponderance of the
evidence. First, the General Counsel must show the existence
of activity protected by the Act. Second, the General Counsel
must prove the respondent was aware that the employee had
engaged in such activity. Third, the General Counsel must
show that the alleged discriminatee suffered an adverse em-
ployment action. Fourth, the General Counsel must establish a

15 Salazar was a former employee of the Hotel, and he was the union
representative most familiar to the Respondent’s managers, as he was
frequently on the property to administer and police the Agreement.
link, or nexus, between the employee’s protected activity and
the adverse employment action. In effect, proving these four
elements creates a presumption that the adverse employment
action violated the Act. To rebut such a presumption, the re-
spondent bears the burden of showing that the same action
would have taken place even in the absence of the protected
conduct. See Mano Electric, Inc., 321 NLRB 278, 280 fn. 12
(1996); Farmer Bros. Co., 303 NLRB 638, 649 (1991).
The Respondent does not dispute the obvious fact that the
protest engaged in by 25–30 employees outside of Trinidad’s
office on September 27 constituted both union and protected
concerted activity. The employees were highly upset about the
Respondent’s unilateral action in discontinuing payments to the
Funds. That caused the medical insurance provider to cease
providing medical care to the unit employees. The employee
confrontation with Trinidad was intended to force the Respon-
dent to resume its contractually required payment to the Funds.
Of the four employees whose lockers were searched the follow-
ing day, three had been present at the protest. Even more sig-
nificant was the fact that two of those employees, Campos and
Serrano, had acted as spokespersons for the group in directing
confronting Trinidad and insisting that she do something to
have their medical insurance restored. Obviously, there can be
no question that the Respondent, through Trinidad, was aware
of this protected activity, as she herself had been confronted by
it.
Similarly, there can be no doubt that the four employees suf-
fered an adverse employment action. They received the Sep-
tember 27 “Random Selection For Locker Inspection” memo
from Trinidad, either in writing, orally, or both. Their receipt
of the memo occurred just prior to their lockers being searched
on September 28. Presumably, the search of their lockers, os-
tensibly for drugs and weapons, could have led to disciplinary
action, and, certainly, a refusal to permit such a search could
have resulted in a charge of insubordination. The Respondent
does not even bother to deny that a search of their lockers was
adverse to the interests of the four employees.
The only attempt made by the Respondent to rebut this
charge comes from counsel’s posthearing brief where it is ar-
gued that there is no connection or nexus between the protected
conduct engaged in by these employees and the subsequent
search of their lockers, except the “proximity in time.” Of
course, the proximity in time of these two events is very telling.
It defies credulity to imagine that this was mere coincidence.
On September 27 three of the four employees in question gath-
ered with others to confront Trinidad, two of them acting as the
principal spokespersons. That same day Trinidad drafts the
locker memo, and the following day the memo is given to the
four employees and their lockers are searched. In my view, it is
the height of naivety to believe that the selection of these em-
ployees was simply “random.” Further, as noted earlier, Trini-
dad did not testify at the hearing, and I have drawn an adverse
inference from her absence.
While there is no direct evidence of union animus on the part
of Trinidad, the circumstantial evidence set forth above
strongly suggests such. See Real Foods Co., 350 NLRB 309,
342 fn. 17 (2007). Also, as will be apparent by the conclusion
of this decision, there are many examples of union animus dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD316
played by and attributed directly to other supervisors and agents
of the Respondent, including those at the highest levels of man-
agement.
Accordingly, based on the above, counsel for the General
Counsel has met her burden of establishing that the Respon-
dent’s actions in issuing the “Random Selection For Locker
Inspection” memo and in searching the lockers of the four em-
ployees were motivated, at least in part, because of the union
and protected concerted activity engaged in by the employees.16
The burden now shifts to the Respondent to show that it would
have taken the same action absent the protected conduct. How-
ever, the Respondent offered no evidence in its defense, with
Trinidad failing to testify. Obviously, therefore, the Respon-
dent has failed to meet this burden.
Based on the above, I conclude that the Respondent has vio-
lated Section 8(a)(1) and (3) of the Act by promulgating its
unlawful locker search memo of September 27 and in searching
the lockers of employees Campos, Serrano, Carrillo, and
Calderon on September 28, as alleged in paragraphs 16 and 32
of the first complaint. See Mays Electric Co., 343 NLRB 128
(2004).
5. Interrogation of William Carranza
Paragraphs 21 and 33 of the first complaint allege that in late
November or early December 2006, Leo Lee interrogated and
threatened to terminate employees because of their union activ-
ity. As was apparent at the hearing, William Carranza, a deli
server at the hotel, was the employee allegedly interrogated and
threatened. The stipulation between the parties names Leo Lee
as the Respondent’s president, and further states that he is an
agent and supervisor. In his testimony, Lee referred to himself
as the Respondent’s “CEO.” In any event, he is clearly the
Respondent’s highest ranking manager.
The complaints allege that the Respondent, through Lee,
committed various violations of the Act. Those allegations are
denied in the Respondent’s answers. It is, therefore, necessary
for me to evaluate Lee’s credibility, as he generally denied the
conduct attributed to him by various employees who testified,
including Carranza. In this regard, I found much of Lee’s tes-
timony unbelievable. He testified in a very cryptic manner.
His answers to questions were frequently short and abrupt,
without detail or explanation. He was nervous, excessively so
for a person of his status as the CEO of a significant business
enterprise. He indicated a lack of knowledge as to what was
happening at the hotel of which he was the highest ranking
manager. His testimony, especially during cross-examination,
was filled with general responses, denials, or uncertainty re-
garding matters, the specifics of which he certainly should have
known in his position. If his testimony was to be believed,
there existed a group of supervisors who were acting unlaw-
fully on their own authority, without Lee’s knowledge. This I
find highly unlikely. Frankly, he testified as if he had some-
thing to hide.

16 While Ofelia Calderon did not participate in the protest at Trini-
dad’s office, her inclusion in the group of four whose lockers were to
be searched was likely merely intended to deflect attention away from
the other three employees who engaged in the protected conduct, two of
whom were principal spokespersons.
As I did not find Lee to be a credible witness, I accepted the
contrary testimony of employee witnesses when their testimony
was inherently plausible and consistent with the other credible
evidence. Further, I would note, as counsel for the General
Counsel points out in her posthearing brief, that the testimony
of current employees against the interests of their current em-
ployer should be given added credibility and weight. As the
Board noted in Gold Standard Enterprises, 234 NLRB 618, 619
(1978); Federal Stainless Sink Div. of Unarco, 197 NLRB 489,
491 (1972); and Georgia Rug Mill, 131 NLRB 1304 fn. 2
(1961), the testimony of current employees, which contradicts
statements of their supervisors, is likely to be particularly reli-
able because these witnesses are testifying adversely to their
pecuniary interests. See also Flexsteel Industries, 316 NLRB
745 (1995), enfd. 83 F.3d 419 (5th Cir. 1996).
When he testified, William Carranza was still employed as a
deli server at the Respondent’s coffee shop. According to Car-
ranza, in late November or early December 2006, in the early
evening, he was performing his job in the coffee shop when
Lee and his assistant, Robbie Perez, came into the area.17 As
they began to sit down at a table, Lee waived at Carranza that
he should come over. Carranza had spoken to Lee before, but
only about work-related matters. Carranza testified that when
he came over, Lee immediately asked him, “What [are] the
Union’s plans?” Carranza responded that he did not know,
followed by Lee’s statement, “You should know. You are a
union member.” Carranza repeated that he did not know, and
that, in fact, he was “usually the last one to know.” According
to Carranza, Lee then turned to Perez and asked, “You used to
be a union member, what do you know?” Perez replied that he
was no longer a union member, and so did not know anything.
Lee then looked back at Carranza and said, “I heard that they’re
going on strike.” Carranza responded that he did not know,
but, if that was what Lee had heard, it might be true. Then,
according to Carranza, Lee asked if he “was going to go on
strike.” Carranza answered that he did not know, to which Lee
responded that “[a]nybody who goes on strike will be easily
replaced.” As a customer had entered the coffee shop, Car-
ranza left to provide service, and that ended his conversation
with Lee. Carranza estimated that the entire conversation took
about 5 minutes.
Lee testified generally that he never had any such conversa-
tion with any employee. However, for the reasons noted above,
I do not believe Lee and credit Carranza. He testified in a
straight forward and direct manner, and, as noted, adversely to
his pecuniary interests. Further, as will be apparent later in this
decision, Lee’s conversation with Carranza fit a pattern of such
conversations with employees instigated by Lee and other su-
pervisors. The conversation as testified to by Carranza is in-
herently plausible as during the time period in question, the
Union and the Employer were locked in difficult negotiations
for a new collective-bargaining agreement where only very
limited progress was being made. Under such circumstances, it
would not be surprising that Lee would at least be concerned
that he might have to face a strike by his unit employees.

17 The parties stipulated that Robbie Perez was Lee’s administrative
assistant and an agent and supervisor of the Respondent.
WILSHIRE PLAZA HOTEL 317
Therefore, I conclude that Lee spoke the words as testified to
by Carranza.
Counsel for the General Counsel contends that in this con-
versation Lee both interrogated and threatened Carranza. I
agree. Regarding interrogation, Carranza’s testimony estab-
lishes that Lee specifically asked him what plans the Union
had, whether the Union was going to strike, and, if so, whether
he planned to join in the strike.
In determining whether a supervisor’s questions to an em-
ployee about his union activities were coercive under that Act,
the Board looks to the “totality of the circumstances.” Ross-
more House, 269 NLRB 1176 (1984), affd. sub nom. HERE
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In Westwood
Health Care Center, 330 NLRB 935 (2000), the Board listed a
number of factors considered in determining whether alleged
interrogations under Rossmore House were coercive. These
are referred to as “Bourne factors,” so named because they
were first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964). These factors include the background of the parties’
relationship, the nature of the information sought, the identity
of the questioner, the place and method of interrogation, and
the truthfulness of the reply.
As testified to by Carranza, this was the only conversation
that he had ever had on a nonwork related subject with Lee.
Further, Lee was the Respondent’s president, the “big boss,”
and it would certainly be reasonable for Carranza to be some-
what intimidated by Lee’s presence and questions. Carranza
was questioned at his workstation where Lee and Perez had
come, a highly unusual situation for Carranza. The questions
certainly caught Carranza off guard, were intrusive, and highly
personal, as in whether he was going to participate in a work
stoppage against his employer, in the person of the very man
asking the questions. Carranza’s responses were denials of any
knowledge, indicative of an employee fearful of getting into
trouble for giving his boss the “wrong answer.” From his view
point, Carranza’s trepidations were very genuine, and were not
lessened by any assurance from Lee that no adverse conse-
quences would result from the conversation, since no such as-
surance was given. See also Millard Refrigerated Services, 345
NLRB 1143, 1146 (2005); Emery Worldwide, 309 NLRB 185,
186 (1992).
Therefore, I conclude that the conversation at issue consti-
tuted an unlawful interrogation of Carranza in violation of Sec-
tion 8(a)(1) of the Act, as alleged in paragraphs 21(a) and 33 of
the first complaint.
Further, I am of the view that Lee’s statement to Carranza
that, “[a]nybody who goes on strike will be easily replaced”
was an obvious threat to punish any unit employee who en-
gaged in their Section 7 right to strike. This was an undis-
guised threat to terminate strikers. As such, it interfered with,
restrained, and coerced Carranza and other unit employees in
the exercise of their rights under the Act. Accordingly, I find
that the Respondent has again violated Section 8(a)(1) of the
Act, as alleged in paragraphs 21(b) and 33 of the first com-
plaint.
6. Interrogation of Merian Salansang and
Enrique Camberos
The parties stipulated that Alex Moon was the Respondent’s
director of banquets and a supervisor and agent of the Respon-
dent. It is alleged in paragraphs 22(a) and 33 of the first com-
plaint that in early December 2006, Moon, in the Respondent’s
deli, unlawfully interrogated employees regarding their union
activity by asking if they had news about the Union. It is al-
leged in paragraphs 22(b) and 33 of the first complaint that
during the same period, Moon, in the Respondent’s cafeteria,
while pointing his finger in an employee’s face, interrogated
employees regarding their union activities by asking if they
were there for a union meeting. As was apparent at the hearing,
Merian Salansang, a deli attendant, was the employee allegedly
interrogated by Moon as set forth in paragraph 22(a) and Enri-
que Camberos, a kitchen worker, was the employee allegedly
interrogated by Moon as set forth in paragraph 22(b), respec-
tively of the first complaint.
Both Salansang and Camberos testified on behalf of the
General Counsel. Moon did not testify, nor did any other wit-
ness challenge their testimony. Accordingly, the testimony of
Salansang and Camberos remains unrebutted. Further, both
employees seemed reasonably credible, and, therefore, I shall
accept their testimony as accurate.
According to Salansang, she is a member of the Union, and
in early December 2006 she had a discussion with her immedi-
ate supervisor, Alex Moon, about the Union. The incident oc-
curred at approximately lunchtime while she was working at
the deli counter and register. Moon was passing through the
deli at the time and asked Salansang if “something was going
on with the Union.” She replied that she had no idea. Moon
then commented, “You attend[ed] the union meeting. How
come you don’t know anything?” She answered, “I have no
idea because I never attend[ed that] meeting.” Salansang testi-
fied that Moon then just turned and walked out of the deli. The
entire conversation lasted only 2 or 3 minutes.
In his posthearing brief, counsel for the Respondent argues
that even if Moon made the statements attributed to him by
Salansang that it does not constitute unlawful interrogation as
Moon was a low ranking supervisory employee, asking very
general questions, without being directed to do so by senior
management. However, I disagree with counsel’s assessment
of the incident.
There was no evidence that Salansang was an open union
supporter, and, yet, she was questioned by her immediate su-
pervisor regarding the Union’s plans while she was in her work
station, during her work hours. Moon’s questions certainly
were unexpected, caught her off guard, and were solicited
without any assurance against reprisals. Further, by his attitude
Moon conveyed the impression to Salansang that he did not
believe her claimed lack of knowledge. This is exactly the type
of interrogation that the Board has found to be coercive. Ross-
more House, supra; Westwood Health Care Center, supra;
Millard Refrigerated Services, supra.
Certainly Moon’s questioning of Salansang did not require
advance approval of upper management in order to be coercive
and constitute unlawful interrogation. Moon, as a statutory
supervisor and agent, was speaking on behalf of the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD318
dent when he interrogated an immediate subordinate who
would reasonably have been fearful of retribution if her an-
swers displeased him. Accordingly, I find that through
Moon’s conduct, the Respondent has violated Section 8(a)(1) of
the Act, as alleged in paragraphs 22(a) and 33 of the first com-
plaint.
Camberos testified that around December 1, 2006, at lunch-
time, he came into the employee cafeteria to have lunch, and
also to see Union Representative Salazar who was at the Hotel
to meet with unit employees. At the time there were approxi-
mately 15–30 people in the cafeteria, most of whom were em-
ployees, but Camberos also recognized Salazar, the Respon-
dent’s attorney, Andy Kaplan, a security guard, somebody tak-
ing pictures, and Alex Moon. He identified Moon as the food
and beverage manager.18
According to Camberos, Moon came over to him as he was
standing next to the buffet table and asked, “Are you coming to
your lunch or are you coming to a meeting.” As Camberos
testified he gestured with his finger in a pointing motion. It
appeared that he was indicating that Moon made such a gesture
with his finger as he spoke to Camberos in the cafeteria.19
Camberos responded that he was there to have his lunch, and
“was also going to a meeting.” That was apparently the end of
the conversation, which, according to Camberos only lasted a
few seconds. Camberos then left the cafeteria without staying
for the meeting with Salazar.
When questioned by counsel for the General Counsel as to
why he did not stay for the meeting, Camberos replied, “Be-
cause I didn’t want any trouble with Mr. Alex Moon. I have
had trouble before.” Camberos seemed a sincere, credible wit-
ness. His testimony about Moon was not rebutted, and I have
no reason to doubt that he left the cafeteria without waiting for
the meeting because he was genuinely concerned about upset-
ting Moon.
This is precisely the type of situation where the Board has
found that a supervisor’s questioning of an employee regarding
his attendance at a union meeting constituted a violation of the
Act. American Tool & Engineering Co., 257 NLRB 608, 624–
625 (1981); Glazer Wholesale Drug Co. of New Orleans, Inc.,
181 NLRB 304, 308 (1970). Further, under the Board’s totality
of the circumstances test, there is no doubt that Moon’s deliber-
ate confrontation with Camberos where Moon questioned him
about his reasons for being in the cafeteria, during his
lunchbreak, at the same time Moon pointed his finger at Cam-
beros, would have reasonably caused Camberos to fear further
upsetting Moon. Rossmore House, supra; Westwood Health
Care Center, supra; Millard Refrigerated Services, supra. The
fact that Camberos was worried enough about Moon’s reaction
to refrain from attending the union meeting was the best indica-
tion that Moon’s interrogation had been coercive and had
achieved the desired result.

18 As stipulated by the parties, Moon’s actual title was director of
banquets.
19 At the hearing, I represented for the record the motion that Cam-
beros was making with his finger while testifying about his conversa-
tion with Moon.
Moon’s conduct reasonably tended to interfere with the ex-
ercise of Camberos’ Section 7 rights. Therefore, I conclude
that the Respondent has violated Section 8(a)(1) of the Act, as
alleged in paragraphs 22(b) and 33 of the first complaint.
7. Repudiation of access and acts of surveillance
Paragraph 10, and its various subparagraphs, and paragraph
31 of the first complaint allege that the Respondent repudiated
the Union’s contractual access to the Respondent’s facility in
violation of Section 8(a)(5) of the Act. The Union’s access to
the hotel is governed by section 4(A) of the parties’ collective-
bargaining agreement (the agreement). As stipulated to by the
parties, that section of the agreement states in pertinent part that
a “[p]roperly authorized representative of the Union shall be
permitted to investigate the standing of all employees and to
investigate conditions and to see that the terms of the agree-
ment are being observed. Said representatives shall be permit-
ted to conduct such investigations within the premises of the
[Employer]. . . . The Union representative shall advise the per-
sonnel office when they come on [the Employer’s] property
. . . .” (Jt. Exh. 1, p. 12.)
As noted earlier, Oscar Salazar, a former employee of the
Respondent, was the union representative who serviced the
Respondent’s facility on behalf of the Union. He testified that
prior to December 2006 he would visit the unit employees at
the facility approximately two or three times a week. Upon
arriving at the hotel, his custom was to first alert the security
office that he was on the property. Whether anyone was pre-
sent in the security office or not, he would sign in on the secu-
rity log and then proceed on to the employee cafeteria. He
would inform any employees in the cafeteria that he was on site
and would be returning to the cafeteria after he made the rounds
of the Hotel to inform other unit employees that he was avail-
able to meet with them in the cafeteria. It will become increas-
ingly significant that Salazar testified that prior to December
2006 he never had to explain to management the reason why he
was at the Hotel.
On December 1, 2006, Salazar arrived at the Hotel at about
11 a.m. He testified that there was neither a security guard nor
a sign in sheet in the security office, so he signed a document in
that office, which was intended for employees to sign out hotel
keys during their shifts. After “signing in,” Salazar proceeded
past the human resources office, which was closed, to the em-
ployee cafeteria where he greeted the approximately 25 em-
ployees present. The employees were sitting at tables eating.
As soon as he greeted the employees, two women, who he did
not recognize, stood up and started yelling at him. Subse-
quently, he learned from employees that one of the women was
Haena Kim, who the parties have stipulated was the Respon-
dent’s director of human resources and a supervisor and agent
of the Respondent. (Jt. Exh. 1, p. 6.) The woman who he later
learned was Haena Kim was yelling that he “did not have any
right” to be there, and that the attorney and owner had said that
he was “not to be on the property.” In response, Salazar said
that the agreement gave him permission to be on site and that
was his authority. According to Salazar, Haena Kim tried to
grab his arm but he pulled away and told her not to touch him.
WILSHIRE PLAZA HOTEL 319
Within a few minutes a security guard arrived on the scene.
Kim then proceeded to order the guard to remove Salazar from
the property. Salazar informed the guard that he wanted “to
speak with someone who had the power to revoke . . . the Un-
ion’s . . . access.” According to Salazar, there were approxi-
mately 40 unit employees in the cafeteria at this time, along
with Haena Kim, the security guard, the Respondent’s counsel,
Andy Kaplan, Jihan Kim, stipulated by the parties to be the
assistant to the Respondent’s president and a statutory agent
and supervisor, and several unidentified individuals.
Kaplan approached Salazar, and, according to Salazar, told
him that he (Kaplan) did not want Salazar in the Hotel, and that
Salazar “had 30 seconds before the police arrived and removed
[him].” Kaplan then started to count for 5 seconds, showing his
watch to Salazar that 5 seconds had passed. Salazar informed
Kaplan that Kaplan knew that he was violating the agreement
between the parties. Kaplan suggested that they continue this
discussion in a private office, to which Salazar responded that
he would gladly do so, as long as he could bring a witness with
him. Kaplan refused to have a witness present and as Salazar
would not go with Kaplan without one, Kaplan simply left the
cafeteria.
Kaplan’s version of his conversation with Salazar in the
cafeteria is somewhat different. According to Kaplan, he asked
Salazar why he was at the Hotel. Allegedly, Salazar responded,
“I don’t have to tell you. I’m allowed to come to the Hotel at
any time and go anywhere for any reason.” Kaplan told Salazar
that was wrong, that the access provisions of the agreement
limited the reasons why a union representative could come into
the nonpublic areas of the Hotel. Salazar still refused to give
Kaplan a reason why he was there, and Kaplan testified that he
told Salazar that unless he gave a reason, the Employer would
have no recourse but to call the police and have Salazar arrested
for trespassing. Salazar told him to do what he had to do, after
which Kaplan directed Jihan Kim to call the police.
Kaplan denies that he ever told Salazar that he could not be
at the Hotel under any conditions or circumstances. It is the
Respondent’s position that the conditions under which a union
representative can be in nonpublic areas of the hotel are limited
to those reasons allegedly set forth in the agreement. Kaplan
contends that since Salazar would not inform him of his reason
for being at the hotel, Salazar had no legitimate business being
there. However, on cross-examination Kaplan acknowledged
that the agreement did not require that the union representative
report to the Employer’s attorney when entering the Hotel, just
that the representative advise the personnel office when on the
property.20
After Kaplan left the cafeteria, Salazar sat down with several
employees and began to conduct his business. However, within
a short period of time two city of Los Angeles police officers
arrived and asked Salazar to step out of the Hotel with them.
Once outside, the police informed Salazar that the Hotel had
asked to have him removed. Salazar told the officers that the
Hotel had a contract with the Union that permitted him to be on

20 It is not necessary to resolve the differences in the testimony of
Kaplan and Salazar as they are minor, and, in any event, Kaplan admits
directing Jihan Kim to call the police.
the property, and he showed them the access provision in the
agreement. A supervisory officer arrived and Salazar also
showed him the access provision. That officer then had a con-
versation with Jihan Kim, who was standing outside the Hotel
watching the proceedings. He returned to Salazar and asked
him if he had signed in upon entering the Hotel. Salazar an-
swered in the affirmative and after an officer returned from
confirming that Salazar had signed in, the supervisory officer
had a second conversation with Jihan Kim. The supervisor then
informed Salazar that as the agreement gave him the right to be
on the property and as he had followed the procedures, the
police would not remove him from the property. The officer
asked Salazar if he intended to remain further on the property,
to which Salazar replied that he had finished his business.
Shortly thereafter, Salazar left the Hotel.
On December 11, at about 11 a.m., Salazar returned to the
Hotel in the company of Aracely Rubio, a union organizer.
Upon arrival they checked in with the security guard present in
the security office, signed the visitors’ sign-in sheet, and re-
ceived visitors’ passes to put on their clothes. They then pro-
ceeded towards the cafeteria, but were intercepted by Jihan
Kim who began walking 3 to 4 feet behind them. They initially
spoke to Kim, but he did not respond. As was his practice,
Salazar entered the cafeteria to tell employees that he was on
site and would return. He then made his rounds to inform unit
employees working throughout the Hotel that he would be in
the cafeteria if they wished to meet with him. Kim continued to
follow Salazar and Rubio. At some point Rubio asked Kim
why he was following them, to which Kim responded, “To
make sure [you] don’t incur an accident.” According to Sala-
zar, on his previous visits to the property he had never been
followed by a manager, and had never had a manager express
concern for his safety.
When Salazar and Rubio approached the second floor
kitchen, Salazar entered and began speaking with employee
Enrique Camberos, as Rubio waited outside the room. As Sa-
lazar and Camberos spoke, Salazar noticed Sebastian Choo
standing in the kitchen pointing a photographic camera at them.
The parties stipulated that Sebastian Choo was the Respon-
dent’s service manager and a statutory agent and supervisor.
(Jt. Exh. 1, p. 6.) Salazar testified that he told Choo to stop
taking pictures, but Choo ignored him and continued doing so.
Later Kim took the camera and began taking pictures of Salazar
and Camberos.
Next, Salazar and Rubio walk over to the Hotel’s restaurant
where Salazar spoke with a number of unit employees. During
this time Kim stood about 7 to 10 feet away with a camera
aimed in their direction. As Salazar and Rubio walked back to
the cafeteria, Kim continued to follow them. There were ap-
proximately 15–20 employees inside the cafeteria.
Salazar entered the cafeteria while Rubio waited outside the
room. Salazar sat down besides employees Roberto Gamez and
Manuel Montez, and then noticed that Haena Kim was aiming a
camera at them. Salazar told Haena Kim to stop taking pic-
tures, but she failed to respond and continued to taking pictures.
During the period of time that Haena Kim took pictures of Sa-
lazar talking with employees, Jihan Kim also continued to do
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
the same. None of the managers said anything to Salazar as he
sat with employees.
Noelia Elena Lopez, a cafeteria attendant, also testified that
towards the middle of December at about lunchtime, in the
employee cafeteria, she and other employees met with Oscar
Salazar. She recalled Aracely Rubio also being present for the
meeting. According to Lopez, during that meeting Jihan Kim
and Haena Kim both took pictures of the employees as they
were meeting with Salazar. At the time, both managers were
standing in close proximity to those employees.
It is important to note that neither Choo nor Haena Kim testi-
fied at the hearing, and, thus, did not deny the testimony of
Salazar that they took pictures of him talking with unit employ-
ees. However, Jihan Kim did testify and denied taking any
pictures of Salazar talking with employees, or of seeing any
other managers taking such pictures. It is, therefore, necessary
to decide the respective credibility of Jihan Kim and of Salazar
and Rubio.
The parties stipulated that Jihan Kim was the assistant to the
Respondent’s president, Leo Lee. Kim did not specifically
indicate his job title, but Lee testified that Kim was his “assis-
tant,” his “right-hand man.” From the respective testimony of
Kim and Lee, as well as the testimony of various employee
witnesses, there is little question that the two men worked to-
gether closely, and that Kim was considered the owner’s repre-
sentative at the Hotel. However, his testimony was filled with
denials regarding whether he was aware of what other supervi-
sors were doing at the property. As just two examples, he
claimed to have no knowledge about the locker search policy
instituted by Chamroeun Trinidad, or about whether employees
were being paid for the vacation time that they had earned.
Kim testified that he never took pictures of Salazar, nor did
he ever see any other supervisors taking such pictures. I do not
believe him. Not only did Salazar and Rubio testify that such
pictures were taken, but employees Roberto Gamez and Noelia
Elena Lopez also testified that they saw Kim taking pictures of
Salazar and employees talking in the cafeteria in early or mid-
December. This testimony by Salazar, Rubio, Lopez, and
Gamez is very detailed, seems genuine, and has the “ring of
authenticity” about it.
In general, I did not find Kim credible. His testimony about
Salazar’s presence at the Hotel in early December 2006 was
filed with contradictions, implausible explanations, shifting
rationales, and protestations of ignorance. At various times in
his testimony, he claimed that in early December he did not
know that Salazar was a union representative, and did not know
that union representatives were permitted access to the nonpub-
lic areas of the Hotel to talk with unit employees. At other
points in his testimony, he claimed that at the time in question
he did know who Salazar was and did know about the access
provision, and yet admitted reporting Salazar’s presence on the
property to Attorney Kaplan, and of calling the policy asking
them to remove Salazar. When it suited his purpose, he was
quite willing to have the listener believe that the Hotel was
basically running itself, with upper management, in the form of
Lee and himself, being totally unaware of any unfair labor prac-
tices being committed.
There is no doubt that both Salazar and Rubio were partisans
on behalf of the Union, just as Kim was a partisan on behalf of
the Employer. However, the testimony of Salazar and Rubio
was inherently plausible and in conformity with the other evi-
dence of record. Not only was Kim’s testimony not plausible,
it was unsupported by any other evidence. I draw an adverse
inference from the Respondent’s failure to call Choo and Haena
Kim to testify in support of Jihan Kim. I am simply left to
conclude that Jihan Kim did not testify credibly, and I shall
accept Salazar’s and Rubio’s version of events when they are
disputed by Kim.
Returning to the events of December 11, Salazar remained in
the cafeteria talking with employees for about 20 minutes, after
which two police officers from the city of Los Angels arrived
and asked him to go outside with them. Once outside, the po-
lice told Salazar that they had been called by the Employer’s
managers, accusing him and Rubio of trespassing. Salazar and
Rubio advised the officers of the access provision in the agree-
ment and showed them that contract clause. Throughout this
conversation, Jihan Kim was standing nearby.
The officers spoke with Kim and then returned to Salazar
and Rubio and told them that Kim insisted that they had to
leave. Kim approached the group and repeated what he had
apparently told the officers privately, that Salazar and Rubio
needed to leave the property. According to Rubio, she asked
Kim if he was denying them access to the Hotel, to which he
responded that “[they] have no permission to go inside.” Fur-
ther, Kim said that “if [they] wanted to come back that [they]
have to call the attorney who represents [the Employer].” At
that point Rubio and Salazar left the property. Since that date,
they have not returned to meet with employees inside the Hotel.
On December 12, Salazar and Kaplan spoke by phone. Sala-
zar indicating to Kaplan that he needed to access employees at
the Hotel in order to process grievances. According to Salazar,
Kaplan told him that he had no right to go into the Hotel, and
that they could speak about grievances over the negotiation
table. It was during this period that the parties were involved in
contract negotiations.
Kaplan claims that he actually called Salazar on December
12, because Jihan Kim had told him the day before that Salazar
had returned to the nonpublic areas of the Hotel. Kaplan ad-
mits asking Salazar what he was doing at the Hotel the day
before. Allegedly Salazar responded that he could be at the
Hotel “any time he wanted for any reason.” Kaplan testified
that he told Salazar that he could only be at the Hotel “for rea-
sons specified in the collective-bargaining contract.” He again
asked, and Salazar again refused to tell him why he had been on
the property.
Rubio testified that within a week of being denied access on
December 11, she called Kaplan to request access to the facil-
ity, as Jihan Kim had directed. According to Rubio, Kaplan
denied her permission to enter the facility until such time as the
Union made the request in writing. On the other hand, Kaplan
denied that any such phone conversation with Rubio occurred
at all.
Salazar testified that the Employer has never given the Union
notice that it was revoking access to the facility to union repre-
sentatives, and has never given the Union the opportunity to
WILSHIRE PLAZA HOTEL 321
bargain over its revocation of access to the Hotel. Of course, it
is the Respondent’s position that its agents and supervisors
have never revoked the Union’s access to the Hotel.
Kaplan’s testimony is at some variance with that of Rubio
and Salazar as to what was said between them on December 1,
11, and 12, and approximately 1 week later, regarding access to
the Hotel. However, in my view it is not necessary for me to
resolve these differences. Even if I assume Kaplan’s version of
the conversations is the more accurate, I believe that the Re-
spondent, through the actions of Kaplan and Jihan Kim, has
violated the Act. For all practical purposes, the conduct of the
Respondent’s agents on those dates serves as a repudiation of
the Union’s contractually agreed upon access to the facility in
violation of Section 8(a)(5) of the Act.
The terms of the agreement speak for themselves. The ac-
cess provision, section 4A, provides that “representatives of the
Union shall be permitted access to investigate conditions and to
see that the terms of the agreement are being observed. Said
representatives shall be permitted to conduct such investiga-
tions within the premises of the Employer.” (Jt. Exh. 2.) No-
where in that provision does it require the union representative
to provide the Employer with its reasons for wanting access to
the facility to see the unit employees. Not only is there no such
requirement, but there has been no such practice. Salazar’s
testimony was unrebutted that in the past he would gain access
to the facility simply by appearing on the scene, advising secu-
rity that he would be visiting the facility, and recording his
arrival on a sign in sheet in the security office. Further, the
access provision requires merely that a union representative
“shall advise the personnel office when they come on . . . the
property.” Salazar’s practice was apparently to do so, when
somebody was available in the human resource office, which
was not always the case. In any event, even Kaplan was forced
to acknowledge that there in nothing in the contract that re-
quires a union representative to notify Respondent’s counsel of
the purpose of his visit to the facility.
The comments of Jihan Kim and Kaplan on the dates in
question, as well as the conduct of the Respondent’s agents in
summoning the police on December 1 and 11, were undoubt-
edly designed to convey the message to the Union that it was
no longer going to be permitted access to the facility. Even if
the Respondent’s agents did not say those exact words, their
implication was clear. It was not necessary for the Respon-
dent’s agent to have use “magic words,” such as access denied
for all times and for all purposes. By insisting that the union
representatives give specific reasons for their visits prior to
being admitted, the Respondent was for all practical purposes
denying access in contravention of the collective-bargaining
agreement.
Further, I am unimpressed with counsel for the Respondent’s
argument that the Union’s interest in visiting the facility on
December 1 and 11 was not for the purpose of bargaining unit
representation, and, therefore, under the terms of the agreement
Salazar could be denied entry. Counsel apparently basis this
contention on the testimony of Salazar who indicated that one
of the reasons why he wanted access to the facility on those
dates was to encourage the unit employees to participate in a
job action that the Union was organizing on behalf of the em-
ployees of another employer.21 Of course, the Respondent only
learned of this alleged solicitation of employee support “after
the fact,” meaning months later, at trial. The Respondent can
not use this alleged information retroactively, to “boot strap” its
denial of the contractually guaranteed access months earlier.
Accordingly, I reject this defense on the part of the Respondent.
It is clear from the conduct of the Respondent’s agents on at
least December 1, 11, and 12 that the Respondent was revoking
the Union’s access to the Hotel. Further, the Respondent never
gave the Union notice that it was revoking access to union rep-
resentatives, nor did it give the Union an opportunity to bargain
over its revocation. The Board has consistently held that “ac-
cess is necessary in order to investigate and to resolve compli-
ance when the contract grants the Union such access.” CDK
Contracting Co., 308 NLRB 1117 (1992), citing C. E. Wylie
Construction Co., 295 NLRB 1050, 1051 (1998). See also
Wolgast Corp., 334 NLRB 203 (2001). Further, the Board has
held that a “union’s access to the jobsite in order to represent its
members is a term and condition of employment and subject to
bargaining.” Wehr Constructors, Inc., 315 NLRB 867, 878
(1994). Accordingly, the Respondent’s revocation of the Un-
ion’s contractual access, and its failure to bargain over this
revocation violates Section 8(a)(1) and (5) of the Act, as al-
leged in paragraphs 10 and 31 of the first complaint.
Additionally, the Respondent’s expulsion of union represen-
tative Salazar on December 1 and representatives Salazar and
Rubio on December 11, in the presence of numerous bargaining
unit employees, violated both Section 8(a)(1) and (5) of the
Act. In Frontier Hotel Casino, 309 NLRB 761, 766 (1992),
enfd. sub nom. NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th
Cir. 1995), the Board adopted the decision of the administrative
law judge and found that the respondent’s expulsion of union
representatives “had the indirect impact of interfering with
union-related communication . . . or was a direct coercion and
restraint of employees who were engaged in the union activity
of conversing with their bargaining representative. Either way
it violated Section 8(a)(1) of the Act.”22
The complaint does not specifically allege the Respondent’s
conduct on December 1 and 11 to constitute an independent
violation of Section 8(a)(1) of the Act. However, these inci-
dents were fully litigated by the parties, with the Respondent
offering the testimony of Jihan Kim and Attorney Kaplan as to
what occurred. In my view, there is no prejudice to the Re-

21 Further, it appears from the testimony of employee witnesses that
Salazar discussed a number of matters with them on December 1 and
11 that certainly would have been of direct concern to unit employees
under the terms of the existing Agreement, or regarding the progress of
negotiations on reaching the terms of a new contract.
22 The Board, in adopting the administrative law judge’s decision in
Frontier, also found that the respondent’s basis for expelling the union
representatives was “flimsy” and that as “it deprived employees of their
contractually granted access to their bargaining representative, it was a
unilateral change of a material term and condition of employment and
therefore a breach of Section 8(a)(5).” Id. at 762 and 766. As noted
above, I have rejected the Respondent’s retroactive argument that the
union representatives sought access to the property for reasons unre-
lated to their representation of bargaining unit members, namely to
gather support for a job action at another hotel. In my view, such an
“after the fact” argument is nothing less than “flimsy.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD322
spondent, nor any denial of due process, in addressing this fully
litigated issue.23
The testimony of Salazar, Rubio, and various employees was
unrebutted that on both December 1 and 11 there were signifi-
cant numbers of employees present in the cafeteria when the
Respondent’s agents expelled Salazar and Rubio from the Ho-
tel. Approximately 25–30 employees were present on Decem-
ber 1 when Salazar was expelled, and approximately 15–20
employees were present on December 11 when both Salazar
and Rubio were expelled. Certainly, this ejection from the
Hotel by the Respondent’s agents interfered with the employ-
ees’ exercise of their Section 7 right to communicate with their
union representatives. These employees were engaged in clas-
sic union activity and the Respondent’s actions coerced and
restrained them in the exercise of this activity. It was an undis-
guised attempt by the Respondent to demonstrate to the em-
ployees that the Union had no power, and its agents could sim-
ply be expelled from the property. In this way, the Respondent
sought to undermine and diminish employee support for the
Union.
Accordingly, I conclude that the Respondent’s actions on
December 1 and 11, in expelling union representatives from the
Hotel, constituted an independent violation of Section 8(a)(1)
of the Act.
Paragraphs 18 and 19, and their respective subparagraphs,
and 33 of the first complaint allege that on December 11, 2006,
the Respondent, through its agents, Jihan Kim, Sebastian Choo,
and Haena Kim, engaged in surveillance and/or created the
impression of surveillance of employees’ union activity in vio-
lation of Section 8(a)(1) of the Act. These incidents were fully
discussed above in connection with the visit to the Hotel by
Salazar and Rubio on December 11. As noted earlier, neither
Choo nor Haena Kim testified at the hearing and I have drawn
adverse inferences from their failure to testify. Further, for the
reasons that I gave above, I found Jihan Kim to be an incredible
witness. Accordingly, I credit those witnesses who testified
about the conduct of Choo, Haena Kim, and Jihan Kim on De-
cember 11. The testimony of those witnesses, including em-
ployees Roberto Gamez and Noelia Elena Lopez, and Union
Representatives Salazar and Rubio, were inherently plausible,
and in conformity with the other evidence presented, and, thus,
worthy of belief.
Whether an employer engaged in unlawful surveillance of
employees’ union activities depends on the specific circum-
stances in the case, including the nature and duration of the
employer’s observations. In Aladdin Gaming, LLC, 345 NLRB
585 fn. 2 (2005), the Board held that while an employer’s “rou-
tine observation” of open, public union activity on or near its
property does not constitute unlawful surveillance, an employer
violates the Act when “it surveils employees engaged in Sec-

23 An unpleaded but fully litigated matter may support an unfair la-
bor practice finding despite the lack of an allegation in the complaint,
where the unpleaded matter is closely connected to the subject matter
of the complaint. Garage Management Corp., 334 NLRB 940 (2001);
Hi-Tech Cable Corp., 318 NLRB 280 (1995), enfd. in part 128 F.3d
271 (5th Cir. 1997); Meisner Electric, Inc., 316 NLRB 597 (1995),
affd. mem. 83 F.3d 436 (11th Cir. 1996); Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
tion 7 activity by observing them in a way that is ‘out of the
ordinary’ and thereby coercive.” See also Partylite Worldwide,
344 NLRB 1342 fn. 2 (2005) (where managers stood in close
proximity to handbillers, surveillance unlawful); Loudon Steel
Inc., 340 NLRB 307, 313 (2003). As indicia of coerciveness,
the Board looks to such factors as “include the duration of the
observation, the manager’s distance from employees while
observing them, and whether this was an isolated incident or
the employer engaged in other coercive conduct during its ob-
servation.” Aladdin Gaming, supra at fn. 2, citing Sands Hotel
& Casino, San Juan, 306 NLRB 172 (1992), enf. sub nom.
mem. S.J.P.R., Inc. v. NLRB, 993 F.2d 913 (D.C. Cir. 1993).
In the matter at hand, there is no doubt that on December 11,
the Respondent’s managers engaged in conduct that was far
from ordinary. Jihan Kim followed Salazar and Rubio through
the hallways of the Hotel as they walked to the employee cafe-
teria, and observed Salazar and Rubio as they met with em-
ployees in the cafeteria. Kim also followed the union represen-
tatives as they proceeded upstairs to the Hotel kitchen and ob-
served Salazar and Rubio meeting with kitchen employees.
While they were in the kitchen, Kim took pictures of the union
representatives in discussions with some of the kitchen em-
ployees.
During the same incident, Sebastian Choo also followed Sa-
lazar and Rubio into the kitchen, observed them in the kitchen
talking with bargaining unit employees, and even photograph-
ing them doing so. Then they walked to the Hotel restaurant,
where they were still followed by Kim, who photographed
them there, as well as observing them talking with employees.
Next Salazar and Rubio went back to the cafeteria, where their
conversations with employees were once again observed by
Jihan Kim who took pictures, and then by Haena Kim who also
observed them and took pictures.
These observations and photographing of the union represen-
tatives and bargaining unit employees were conducted by the
three supervisors openly, in plain sight, and in very close prox-
imity to the ongoing union activity. In fact, both Salazar and
Rubio asked the supervisors on several occasions to stop taking
pictures, but all to no avail.
The Board has held that photographing and videotaping
open, public union activity on or near an employer’s property is
unlawful because such pictorial recordkeeping tends to create
fear among employees of reprisals. National Steel & Ship-
building Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C.
Cir. 1998). In the National Steel case the Board reaffirmed its
fundamental principles governing employer surveillance of
union and other protected activities as set forth in F. W. Wool-
worth Co., 310 NLRB 1197 (1993).
In this instance, I find the Respondent’s conduct egregious.
There is no question that its supervisors engaged in conduct,
which was out of the ordinary and highly unusual. As the
Board has said, photographing employees engaged in union
activity has the “tendency to intimidate.” Woolworth, supra.
There was no evidence that any such action had ever been taken
by the Employer in the past, and no evidence or argument was
offered as to why the Respondent sought to conduct itself in
WILSHIRE PLAZA HOTEL 323
this manner on December 11.24 By its actions, the Respondent
was engaged in surveillance and creating the impression of
surveillance of its bargaining unit employees. Its only logical
reason to have conducted itself in this fashion was to under-
mine support for the Union, and to interfere with, restrain, and
coerce its employees in the exercise of their Section 7 right to
confer with their union representatives. Thus, the Respondent’s
actions were unlawful.
Accordingly, I find that the Respondent has violated Section
8(a)(1) of the Act, as alleged in paragraphs 18 and 19, and their
respective subparagraphs, and 33 of the first complaint.
8. Bulletin board access
Section 4(B) of the collective-bargaining agreement between
the parties (the agreement) states in relevant part: “The Em-
ployer shall provide the Union with a bulletin board, of reason-
able size in a reasonably prominent area of the employees’
cafeteria, or at another location(s) if mutually agreed, for post-
ing of notices and other material by the Union. . . .” (Jt. Exhs. 1
and 2.) It is alleged in paragraphs 11 and 31 of the first com-
plaint that the Respondent violated Section 8(a)(1) and (5) of
the Act since about mid-December 2006 by blocking the Un-
ion’s access to its bulletin board, located in the hallway near the
pay telephones in the Respondent’s facility, by placing a large
refrigerator in front of it, making it completely inaccessible to
the Union.
Union Representative Salazar was a 10-year, former em-
ployee of the predecessor owners of the Respondent’s hotel
property. He testified that throughout that period of time, until
at least December 2006, which was the approximate timeframe
after which he was expelled from the nonpublic areas of the
Hotel, the Union had a dedicated bulletin board at the facility,
located in a hallway, close to the staircase leading to the second
floor. As pointed out by Salazar on a diagram during his testi-
mony, the bulletin board, labeled “Union Board,” is located
across the hallway from the employee cafeteria. (See GC Exh.
15.) He described the bulletin board as “a rectangular board
made out of corkscrew material, where union information is
posted.” According to Salazar, as a union representative, he
had occasion to post items on the bulletin board five or six
times from April 10, 2006, when he became a representative,
until December 2006.
However, according to Salazar, sometime, approximately the
end of November 2006, he noticed a large, stainless steel re-
frigerator blocking the union bulletin board. He testified that
he saw this refrigerator blocking access to the bulletin board for
approximately 1 month. This, of course, is somewhat inconsis-
tent with Salazar’s testimony that he was expelled from the
nonpublic areas of the Hotel on December 11. In any event,

24 To the extent that counsel for the Respondent argues in his
posthearing brief that “senior management was unaware of photogra-
phy/videotaping alleged in the complaint,” I reject this defense. Jihan
Kim, Haena Kim, and Sebastian Choo, respectively the Respondent’s
assistant to the president, director of human resources, and service
manager, were the senior management. In fact, the only higher ranking
manager would have been the Respondent’s president, Leo Lee, him-
self. Further, the fact that this unlawful conduct was engaged in by
senior management makes it all the more flagrant.
Salazar indicated that the Respondent did not notify him in
advance about the placement of the refrigerator in front of the
bulletin board, nor did the Respondent offer to negotiate over
the placement.
On cross-examination, Salazar acknowledged that after see-
ing the refrigerator blocking the bulletin board, he never asked
anybody how it got there. When questioned about postings on
the bulletin board, Salazar reminded counsel for the Respon-
dent that since he had been expelled from the nonpublic areas
of the Hotel, he could not know whether there had been any.
He had obviously not been able to post any notices, and, as the
union representative, he had previously been the person most
likely to post union notices. Salazar admitted that there is an
employee of the Respondent who is the designated shop stew-
ard. He could not say whether she or anyone else had posted
any notices on the bulletin board, and no employee had spoken
to him about doing so.
Bargaining unit employee Juan Guardado is a cook at the
Hotel. He testified that the union bulletin board is located “in
the hallway, close to sort of the cafeteria.” Further, he testified
that beginning about February 2007, for approximately 1-1/2 to
2 months, there was a large “aluminum” refrigerator blocking
the Union’s bulletin board. Apparently, after that time, the
refrigerator was moved “a short distance so the bulletin board
could be seen.” The refrigerator and the bulletin board are now
“along side each other.”
Unit employee Jose Luis Campos is a waiter at the Hotel.
He testified that there is a union bulletin board at the Hotel
“located on the first floor in the hallway close to the public
telephone, almost in front of . . . the door [to the employee cafe-
teria].” For a time, a large “broken down refrigerator . . . alu-
minum [in color]” was placed in front of the bulletin board.
The refrigerator was blocking access to the bulletin board from
about January 2007 until about September 2007. Since that
time, the refrigerator has been moved to the side of the bulletin
board, and apparently the bulletin board can now be accessed.
Campos made it very clear that while the refrigerator was
blocking the board, notices could not be posted, and those al-
ready posted could not be read.
Roberto Gamez, a banquet waiter, was familiar with the un-
ion bulletin board, “in the hallway [near the cafeteria].” Ac-
cording to Gamez, there has been a “big refrigerator” from the
kitchen placed in front of the bulletin board. He testified that
the refrigerator was still in front of the bulletin board, and had
been in that position for the previous 4 of 5 months.
The Respondent’s president, Leo Lee, testified that he is fa-
miliar with the union bulletin board, “by the cafeteria.” How-
ever, he indicated that he had never seen a refrigerator or any
other obstruction in front of the bulletin board blocking access
to it. He had never directed that any such obstruction be cre-
ated, nor had he ever been informed that such was the case.
Similarly, Jihan Kim testified that he had never seen a refrig-
erator placed in front of the union bulletin board in the hallway
near the cafeteria. He had never seen that bulletin board ob-
structed, and nobody had ever reported that to him.
As I noted earlier in this decision, I did not find the testi-
mony of Kim and Lee to be particularly credible. Accordingly,
I will credit the testimony of Salazar and the four employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD324
witnesses who testified about the refrigerator. However, I find
that testimony confusing and contradictory. Each of them re-
members something different about the time during which a
refrigerator was blocking the union bulletin board. Salazar
recalls the bulletin board being blocked starting in late Novem-
ber. Since he could only have seen the refrigerator until De-
cember 11, that means that he had knowledge of the obstruction
for at most 11 days. Juan Guardado testified that he first saw
the obstruction in February 2007, and that within 1-1/2 to 2
months, the refrigerator was moved to the side of the bulletin
board, where access was no longer blocked. Jose Luis Campos
testified that the refrigerator blocked the bulletin board from
January to September 2007, after which it was moved and no
longer obstructed access. Finally, Roberto Gamez testified that
at the time of his testimony (October 19, 2007), the refrigerator
was still in front of the bulletin board, and had been obstructing
access for the previous 4 or 5 months.
There is simply no way to reconcile these four versions of
when the refrigerator blocked access to the union bulletin
board, for what period of time, whether it occurred on multiple
instances, and even whether the obstruction was ongoing.
However, I do not believe that these individuals were intention-
ally being untruthful. Over the passage of time memories fade,
time periods become confusing, and the physical location of a
refrigerator in a hallway outside of a cafeteria was not of such
magnitude as to impart its particulars on the viewer.
I am convinced that for some period of time there was a re-
frigerator blocking access to the union bulletin board. How-
ever, counsel for the General Counsel has failed to establish
with sufficient particularity when this occurred and for how
long it occurred. Further, the General Counsel has failed to
establish by a preponderance of the evidence whether the ob-
struction was intentionally created by the Respondent in an
effort to frustrate the union’s representation duties, to interfere
with employees’ Section 7 rights, in contravention with the
Union’s collective-bargaining responsibilities, or in violation of
the Respondent’s duty to bargain with the Union.
Under these circumstances, there is insufficient evidence to
establish that the Respondent blocked access to the union bulle-
tin board in violation of the Act. Accordingly, I shall recom-
mend that paragraph 11 of the first complaint be dismissed.
9. Interrogation of Zainal Abidin
It is alleged in paragraphs 23 and 33 of the first complaint
that on January 17 or 24, 2007, the Respondent, by Leo Lee, in
the company of Robbie Perez, interrogated employees regard-
ing their union activities in violation of Section 8(a)(1) of the
Act. As was apparent at the hearing, the employee who was
allegedly interrogated by Lee was Zainal Abidin. He works for
the Respondent as a bartender in the lobby bar.
According to Abidin, on either January 17 or 25 at about 8
p.m., he was working in the lobby bar when Lee, in the com-
pany of a man named Robinson,25 entered the bar. Abidin testi-

25 It is unclear exactly who Robinson is, and, in any event, he is not
alleged as a supervisor or agent of the Respondent. The complaint
names the person accompanying Lee on this occasion as Robbie Perez,
who is a stipulated supervisor and agent. When it became apparent that
it was Robinson and not Perez who allegedly accompanied Lee, coun-
fied that Lee ordered drinks, and when Abidin returned with the
drinks, Lee asked him “if the Union people [were] approaching
[him].” Abidin responded “no,” and there was nothing else
said about the matter. Lee remained in the bar drinking, but
there was no further mention of the Union. Further, Abidin
testified that prior to that night, Lee had never spoken to him
about the Union.
During his examination, Lee denied that he had ever asked
any employees of the Hotel what their views were about the
Union, if the Union had come to them, or what the Union’s
plans were. However, he was not specifically asked about a
particular conversation with Abidin.
In my view, this incident, assuming it occurred, does not rise
to the level of an unfair labor practice. Counsel for the General
Counsel contends that Lee’s question directed to Abidin consti-
tutes unlawful interrogation concerning union activity. Rather,
I believe it was too ambiguous and benign to constitute an un-
fair labor practice. Under the “Bourne factors,” this innocuous
question asked of Abidin in a fleeting way, with no followup,
and without any threat of any kind, was not of the sort as would
reasonably interfere with, restrain, or coerce employees in the
exercise of their Section 7 activity. Westwood Health Care
Center, supra; Bourne v. NLRB, supra; Rossmore House, supra.
Accordingly, I shall recommend that paragraph 23 of the first
complaint be dismissed.
10. Reduction of lobby bar hours
The General Counsel alleges in paragraphs 15, and its sub-
paragraphs, 27(a) and 31 of the first complaint that since about
January 28, 2007, the Respondent, unilaterally and without
negotiating with the Union, has changed the hours of its lobby
bar, eliminating the daytime shift, and causing the layoff of one
unit employee in violation of Section 8(a)(1) and (5) of the Act.
The parties stipulated that prior to about January 28, 2007,
the Respondent’s lobby bar was open from 11 am until 12 mid-
night, and that the Respondent employed one employee in the
lobby bar during the day shift. The parties further stipulated
that about January 29, 2007, the Respondent changed the hours
of the lobby bar and eliminated the daytime shift. (Jt. Exh. 1, p.
14, par. 18.)
According to Union Representative Oscar Salazar, he first
learned that the Respondent had eliminated the day shift in the
lobby bar when the employee who had been employed as the
bartender on that shift called him to say that the shift had been
“canceled” and that person was out of work. Salazar testified
that the Respondent had failed to give him any advance warn-
ing that the shift was being eliminated, and had offered the

sel for the Respondent objected to the receipt of this evidence on the
basis that the incident was not alleged in the complaint. I overruled
counsel’s objection because the allegation as drafted was sufficiently
detailed to advise the Respondent of the substance of the General
Counsel’s contention. There was no unfair labor practice attributed in
this complaint paragraph to anyone but Lee. In my view, the allegation
was not defective merely because the wrong person had been named as
having accompanied Lee. As the pleading had contained adequate
specificity to put counsel on notice, there was no due process violation
in allowing the General Counsel to go forward and present evidence.
Further, while counsel for the Respondent had ample opportunity to
call Robinson to testify, he never did so.
WILSHIRE PLAZA HOTEL 325
Union no opportunity to bargain over this matter. Additionally,
Salazar testified that the Respondent had failed to give the Un-
ion any opportunity to bargain over the effects of the elimina-
tion of the lobby bar day shift. This testimony was unrebutted
by the Respondent, and counsel for the Respondent offered no
defense against this allegation.
The Respondent’s elimination of the day shift in the lobby
bar in the manner described above constituted a unilateral
change in the terms and conditions of employment of unit em-
ployees and violated Section 8(a)(1) and (5) of the Act. The
Respondent provided the Union with no notice of the shift
elimination, nor any opportunity to bargain over that change
and its effects on bargaining unit members. The Respondent
clearly violated its duty to bargain when it instituted this
change in employment conditions without first consulting and
bargaining with the Union. NLRB v. Katz, 369 U.S. 736
(1962); Soule Glass & Glazing Co., 652 F.2d 1055, 1084 (1st
Cir. 1981); Hartford Hospital, 318 NLRB 183, 194 (1995);
Kiro, Inc., 317 NLRB 1325, 1337 (1995).
Accordingly, I conclude that the Respondent has violated
Section 8(a)(1) and (5) of the Act, as alleged in paragraph 15,
and its subparagraphs, 27(a) and 31 of the first complaint.
C. Negotiations and Impasse
1. Cost calculations information request
As has been mentioned above, and set forth in the joint stipu-
lation (Jt. Exh. 1), the Respondent assumed the agreement en-
tered into by the Union and the Radisson Wilshire Plaza Hotel
that was effective from April 16, 2004, to April 16, 2006. The
agreement was extended by the Respondent and the Union on
April 18, 2006, through and including July 16, 2006; and was
extended again on August 22, 2006, such that it was in effect
until and unless terminated by either party upon 10 days written
notice to the other party. By letter dated December 14, 2006,
the Union provided the Respondent with 10 days written notice
to terminate the agreement. As a result, the agreement termi-
nated on December 24, 2006. (Jt. Exhs. 1, 2, 3, 4; GC Exh. 13.)
Representatives of the Union and the Respondent began to
meet to bargain for a new collective-bargaining agreement in
August 2006. The parties met 1026 times on the following
dates: August 15, October 30, November 9, 15, and 28, De-
cember 9 (all in 2006), and January 16, 25, and 30, and Febru-
ary 12, 2007. The principal negotiators for the Respondent
were Attorneys Kaplan and Jeffrey Mayes. The principal nego-

26 Counsel for the Respondent takes the position that there were ac-
tually eleven bargaining sessions. Attorney Kaplan contends that he
and his associate, Jeffrey Mayes, appeared on September 20, 2006, for
a scheduled bargaining session, but no representative of the Union
appeared at the appointed time. Kaplan testified that he and Mayes
eventually left with no bargaining taking place. On the other hand,
Tom Walsh, the Union’s secretary/treasurer, testified that when he
arrived at the negotiation site there were no representatives of the Em-
ployer present. Ultimately, he and the other union negotiators left with
no negotiations taking place. In my view, it is not necessary to resolve
this dispute or determine which side was at fault in not appearing at the
appointed place and time. All that is necessary to conclude, of which
there is no dispute, is that no face to face negotiations were conducted
on this date.
tiators for the Union were Tom Walsh, the Union’s secre-
tary/treasurer, Oscar Salazar, and Fred Pascual.27 Other par-
ticipants came and went. The sessions were all held at the Ho-
tel, and the majority of them began at approximately 4 p.m., in
order to accommodate the employee negotiators who would be
coming off a work shift.
Paragraph 12(b) of the first complaint alleges that on January
16, 25, and 30, 2007, the Union requested that the Respondent
furnish it with “detailed” calculations of the cost of the Re-
spondent’s economic proposals made during negotiations. It is
further alleged in paragraphs 12(f) and (g) and 31 that the Re-
spondent failed and refused to furnish this information to the
Union, which information was necessary and relevant to the
Union’s collective-bargaining duties, in violation of Section
8(a)(1) and (5) of the Act. In its posthearing brief, counsel for
the Respondent contends that this information was furnished
the Union during negotiations.
Without going into the specifics at this point in the decision,
it is sufficient to note that throughout negotiations the parties
were far apart on economic issues. The Respondent’s “man-
tra,” as stated repeatedly by Attorney Kaplan throughout nego-
tiations, was that the Respondent was losing a large amount of
money and needed significant monetary concessions from the
Union in employee wages and benefits in order to continue
operating. To that end, the Respondent offered contract pro-
posals containing significant reductions in wages, benefits, and
other terms and conditions of employment with pecuniary
value.
Tom Walsh testified that on at least three occasions, the Un-
ion requested that the Respondent furnish it with detailed calcu-
lations of some of the Respondent’s economic proposals made
during negotiations, so that the Union could better prepare
counterproposals. The parties stipulated that the Union made
this information request orally on about January 16, 2007, and
in writing on January 25 and 30, 2007. Further, the parties
stipulated that this information was necessary for, and relevant
to, the Union’s performance of its duties as the collective-
bargaining representative of the unit. (Jt. Exh. 1, par. 15, Jt.
Exh. 12, p. 1, and Jt. Exh. 13, p. 2.) The union negotiators
wanted to know specifically what the Respondent’s alleged cost
savings would be for some of its proposals.
On cross-examination, Walsh admitted that on two occasions
the negotiators took out their calculators and attempted to run
numbers furnished by Kaplan in an effort to determine the
amount allegedly to be saved by implementing the Respon-
dent’s proposals. Walsh described the information furnished to
the Union by Kaplan on January 16, 2007, as “flat amounts.”
In any event, the Union was apparently not satisfied with this
rather inexact calculation of the alleged savings, and Walsh
made it clear in his letter of January 25, 2007, that the Union
wanted to know specifically “how much money [the Employer]

27 At the time Pascual testified, he was the director of Southern Cali-
fornia laundry and food services for the Union. When involved in
negotiations with the Respondent, he had been the Union’s director of
hotels. Apparently, he was initially designated by the Union as the
chief negotiator, but after the first bargaining session, he was replaced
by Walsh. Thereafter, he only attended one or two sessions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD326
believe[s] will be saved by each proposal,”. . . [and to] provide
details on how [the Employer] calculated the figures.” (Jt. Exh.
12, p. 1.) In a second letter dated January 30, 2007, Walsh
indicated that the requested calculations had still not been
forthcoming, and he “urged” the Employer to furnish the calcu-
lations as it would “assist [the Union] in responding to [the
Employer’s] economic package.” (Jt. Exh. 13, p. 2.) Walsh
testified that at the bargaining session on January 30, he also
orally requested the information again, but that Kaplan indi-
cated he did not have it available. It is both the Union’s and the
General Counsel’s position that the Respondent has never fur-
nished the requested “detailed” calculations.
As mentioned, the parties have stipulated that the Union re-
quested “detailed calculations of the cost of some of the Re-
spondent’s economic proposals,” and that the information re-
quested was necessary and relevant for the Union’s perform-
ance of its collective-bargaining responsibilities. As such, the
Union was legally entitled to be furnished with this information
by the Respondent. Disneyland Park & Disney’s California
Adventure, supra; NLRB v. Truitt Mfg. Co., supra; NLRB v.
Acme Industrial Co., supra; Detroit Edison Co. v. NLRB, supra.
The only remaining question is whether the Respondent has
done so. I believe it has not.
While neither the General Counsel, the Union, nor the Re-
spondent sought to introduce the actual figures furnished to the
Union by Kaplan during negotiations, this may not have been
possible as it appears these figures were not memorialized, but
were merely given orally and then run through some hand cal-
culators by the negotiators. The testimony of Walsh and Kap-
lan was not really at variance regarding what was furnished to
the Union. It seems that these were inexact calculations, or, as
Walsh described them, “flat amounts.” As such, they do not
meet the Union’s request that it be furnished with “detailed
calculations.” Several oral requests and two written requests
later, the Union was still without the detailed information it had
been requesting. Without this requested information, the Union
would have difficulty drafting counterproposals to those of the
Respondent, which were allegedly designed to save the Re-
spondent enough money to remain solvent.
As the Respondent has failed to furnish the Union with the
requested detailed calculations, I find that the Respondent has
violated Section 8(a)(1) and (5) of the Act, as alleged in para-
graphs 12(b), (f), and (g), and 31 of the first complaint.
2. Radisson international lawsuit information request
Paragraph 12(c) of the first complaint alleges and the parties
stipulate that since about January 30, 2007, both orally and in
writing, the Union has requested that the Respondent furnish it
with information concerning the lawsuit and the penalties that
may be owed by the Respondent to Radisson Hotels Interna-
tional Inc. (Radisson), as a result of a lawsuit seeking a $1 mil-
lion judgment. Further, the complaint alleges in paragraph
12(f) and the parties stipulate that this information is necessary
for, and relevant to, the Union’s performance of its duties as the
exclusive collective-bargaining representative of the unit. (Jt.
Exh. 1, par. 15(c), p. 13.) It is alleged in paragraphs 12(g) and
31 of the complaint that by not furnishing the Union with this
information, the Respondent violated Section 8(a)(1) and (5) of
the Act. While the General Counsel and the Union contend
that this information was not forthcoming, the Respondent ar-
gues that to the limited extent it had information related to the
lawsuit, it was provided to the Union.
Walsh testified that at the negotiation session of January 30,
2007, he asked Kaplan for a copy of a lawsuit, which the
Radisson had filed against the Respondent, and which lawsuit
Kaplan had mentioned to Walsh. Further, in a letter to Kaplan
dated January 30, 2007, Walsh reiterated his request for a copy
of said lawsuit. (Jt. Exh. 13, p. 2.)
According to Kaplan, on January 25, 2007, shortly before the
negotiation session of that day began, he was informed by an
attorney representing the Employer, not associated with Kap-
lan’s firm, that in a lawsuit brought by Radisson International,
the former franchisor of the Hotel, the Judge had just issued a
summary judgment in favor of the Radisson. Further, Kaplan
was told that the summary judgment could be for an amount in
excess of $1 million. Kaplan testified that during the negotia-
tions on January 25, he gave this information to Walsh, as it
could have a significant negative impact on the financial posi-
tion of the Hotel.
Kaplan acknowledged that on January 30, 2007, Walsh re-
quested information regarding the Radisson suit. However, he
testified that as of that date, to his knowledge, “nothing in writ-
ing existed.” His firm was not counsel of record in the case,
and he was advised that “the decision on the Summary Judg-
ment had been enunciated by the Court on the 25th orally, and
that a Summary Judgment, actual Summary Judgment itself had
not been issued.” Apparently, a settlement agreement was
eventually reached between the parties in the Radisson lawsuit,
as introduced into evidence was a copy of such a settlement
agreement executed on March 15, 2007. (R. Exh. 5.)
As stated in his posthearing brief, counsel for the Respon-
dent argues that as of the date of the Union’s request for copies
of the Radisson lawsuit, Kaplan had no such documents in his
possession, and, thus, nothing to furnish the Union in response
to the Union’s information request. However, in my view this
is a highly disingenuous argument. A lawsuit had been filed
and obviously those pleadings existed, and perhaps other re-
sponsive pleadings as well. The Employer was the defendant in
that lawsuit and had legal representation. As the Respondent’s
agent in the negotiations with the Union, Kaplan had an obliga-
tion to obtain these documents from the Respondent’s owner-
ship or from the lawyers representing the Respondent in the
civil action. Since Kaplan offered no testimony or evidence
that in fact he attempted to secure copies of the lawsuit and
other pleadings, I shall assume that he did not do so. Frankly, it
appears that he made no efforts whatsoever to furnish the Un-
ion with the requested information.
The parties stipulated that the requested information about
the Radisson suit was necessary for, and relevant to, the Un-
ion’s performance of it duties as the exclusive collective-
bargaining representative of the unit employees. As such, the
Respondent was legally obligated to provide the Union with
this information in a timely fashion. Disneyland Park & Dis-
ney California Adventure, supra. The Respondent, through its
agent, Kaplan, made no effort to do so. Accordingly, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act, as
WILSHIRE PLAZA HOTEL 327
alleged in paragraphs 12(c), (f), and (g), and 31 of the first
complaint.
3. Impact of unremedied unfair labor practices
on negotiations
As noted, the Union and the Respondent had 10 face-to-face
negotiations between August 15, 2006, and February 12, 2007,
in an effort to reach agreement on the terms of a new collec-
tive-bargaining agreement. The parties stipulated that on Janu-
ary 30, 2007, the Respondent declared the Union and the Re-
spondent to be at impasse, and on February 1, 2007, the Re-
spondent implemented certain provisions of its so-called “last,
best, and final offer.” (Jt. Exh. 1, par. 17.) This implemented
offer changed the wages, hours, and working conditions of the
unit employees that had been in effect under the terms of the
expired agreement. (Jt. Exh. 14.)
Counsel for the General Counsel alleges in paragraphs 14
and 31 of the first complaint that as the parties had not reached
a lawful, good-faith impasse in their collective-bargaining ne-
gotiations, that the Respondent’s actions in changing the terms
and conditions of employment of the unit employees consti-
tuted a violation of Section 8(a)(1) and (5) of the Act. On the
other hand, the Respondent argues that the parties had remained
very far apart, especially on economic issues, throughout the
course of negotiations, and that following a lawful impasse in
negotiations, the Respondent was legally entitled to implement
its “last, best, and final offer.” Correspondingly, the Respon-
dent contends that the bargaining history establishes that it
bargaining in good faith, and that only the Union’s refusal to
accept the Respondent’s dire financial condition prevented the
parties from reaching an agreement on a new contract.
In any event, I am of the view that it is not necessary to ex-
amine the individual bargaining sessions or the totality of the
negotiations, as the Respondent’s unremedied unfair labor prac-
tices were so extensive and pervasive as to make it practically
impossible for the parties to have engaged in good-faith nego-
tiations. The record establishes a causal connection between
the Respondent’s numerous and significant unfair labor prac-
tices and the parties failure to reach agreement on the terms of a
new contract. I believe that the Respondent’s actions were
deliberate, initiated by its highest ranking managers, and car-
ried out in an effort to destroy the Union’s support among bar-
gaining unit members. Therefore, I conclude that the Respon-
dent cannot be permitted to benefit by its misconduct, and it
cannot lawfully declare the parties to be at impasse.
As found by the undersigned, the list of unfair labor practices
committed by the Respondent prior to declaring impasse is a
long one. It includes: a delay in remitting union dues and re-
lated information; a failure to contribute to various trust funds
and submit related reports; a refusal to process grievances and
furnish requested related information; the discriminatory search
of employee lockers; the unlawful interrogation of employees;
the repudiation of hotel access for the Union; acts of surveil-
lance; unilateral elimination of the lobby bar day shift; and the
failure to furnish requested information bearing on negotia-
tions. Some of these unfair labor practices can without exag-
geration be described as having a devastating effect on the bar-
gaining unit, and the employees’ support for the Union.
The Respondent’s failure to make contractually required
payments to the Welfare Funds caused the medical insurance
carrier, which coverage was established through the Funds, to
discontinue the medical insurance of unit employees. The em-
ployees were justifiably extremely upset and frightened by
suddenly finding themselves and their families without medical
insurance coverage. They were so upset as to engage in a mass
protest outside the offices of Chamroeun Trinidad, the human
resources/payroll coordinator. The Respondent exacerbated the
problem, coercing the leaders of that protest by almost immedi-
ately discriminatorily searching their lockers, on the pretext of
looking for drugs and guns. Additionally, the Respondent’s
president, Leo Lee, and director of banquets, Alex Moon, en-
gaged in the unlawful interrogation of employees to determine
the extent of the employees’ union activity.
In another serious of actions designed to undermine em-
ployee support for the Union, various managers including
Haena Kim, director of human resources, Jihan Kim, assistant
to the president, and Sebastian Choo, service manager, took
photographs of employees involved in union activity, and oth-
erwise engaged in acts of surveillance as the employees met
with Union Representatives Salazar and Rubio. Further, Jihan
Kim and the Respondent’s attorney and agent, Kaplan, took
action to remove the union representatives from the Hotel, in-
cluding the summoning of police and the revocation of the
Union’s contractual right of access to the property.
These actions by the Respondent were all the more devastat-
ing to the employees’ Section 7 right to support the Union by
virtue of the fact that they were perpetrated by the highest rank-
ing managers on the property, including Leo Lee, Jihan Kim,
Haena Kim, Alex Moon, and Sebastian Choo. It would simply
be naive to believe that after such extensive unremedied unfair
labor practices by the Respondent that the parties could sit face
to face and engage in meaningful bargaining.
The Board has held that in general, “a lawful impasse cannot
be reached in the presence of unremedied unfair labor prac-
tices.” Dynatron/Bondo Corp., 333 NLRB 750, 752 (2001). In
that case, the Board agreed with its administrative law judge
that “respondent’s unremedied unfair labor practice had a di-
rect, serious, and pervasive adverse effect on the bargaining
process and that there was a causal connection between these
unremedied unfair labor practices and the parties’ failure to
reach agreement.” [Internal quotation marks omitted.] Under
those circumstances, the respondent could not declare impasse
and implement its final contract proposal. Id; see Royal Motor
Sales, 329 NLRB 760, 762–764 (1999); White Oak Coal Co.,
295 NLRB 567, 568 (1989). In Wayne’s Dairy, 223 NLRB
260, 265 (1976), the Board said that “[a] party cannot parlay an
impasse resulting from its own misconduct into a license to
make unilateral changes.”
Still, the Board has recognized that not every unfair labor
practice has a causal connection with the parties’ failure to
reach agreement. The Board has noted that while no unfair
labor practice is insignificant, in the context of determining
whether impasse is present, some have more significance than
others. Unilateral changes in employees’ terms and conditions
of employment may constitute significant violations of the Act,
in the context of which no impasse can be reached. Alwin Mfg.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD328
Co., 326 NLRB 646, 688 (1998), end. 192 F.3d 133, 138 (D.C.
Cir. 1999). Certainly, in the matter before me, the Respon-
dent’s unilateral failure to make Welfare Fund contributions,
which resulted in the employees losing medical insurance cov-
erage, would have caused such consternation among the bar-
gaining unit employees as to have dramatically affected the
negotiations. In fact, it permeated the negotiations, with Walsh
testifying that barely a session went by where the Respondent’s
failure to make Welfare Fund contributions was not brought up
by the Union.
In Lafayette Grinding Corp., 337 NLRB 832, 833 (2002), the
Board reviewed the two ways in which an unremedied unfair
labor practice can contribute to the parties’ inability to reach an
agreement on a contract. According to the Board, an unfair
labor practice can first “increase friction” at the bargaining
table. Next, by changing the status quo, a unilateral change
may “move the baseline for negotiations and alter the parties’
expectation about what they can achieve, making it harder for
the parties to come to an agreement.” (Board citing Alwin Mfg.
Co., supra at 192 F.3d 133, 138.) In my view, this is precisely
what occurred in the case at hand. The Respondent’s unfair
labor practices were so pervasive and destructive of the bar-
gaining unit as to cause the employees and their union repre-
sentatives to be “reeling.”
As counsel for the General Counsel points out in her
posthearing brief, the loss of their medical insurance coverage
due to the Respondent’s unlawful unilateral action was so se-
vere and detrimental to the employees’ welfare that the Union
was under great pressure simply to restore the status quo. In
this way, the Respondent had “effectively moved the baseline
for negotiations to a considerably lower level and seriously
undermined the Union’s bargaining position on an issue being
addressed in negotiations.” Lafayette Grinding Corp., supra at
833.
It is apparent to me that the Respondent’s pervasive pre-
impasse unfair labor practices were deliberately undertaken by
the Respondent’s senior managers in an effort to undermine
support for the Union and force the union negotiators to accept
a more onerous contract than they might have otherwise. The
Respondent’s conduct certainly “moved the baseline” such that
the Union was fighting merely to recoup what the Respondent
had already unilaterally discontinued. The atmosphere that the
parties were negotiating in was overheated due to the Respon-
dent’s conduct, which included an effort to prevent the union
representatives from even accessing the Hotel, a contractual
right, at a time when the Respondent’s managers were violating
the Section 7 rights of the employees through unlawful interro-
gation and discriminatory locker searches.
The Respondent must not be permitted to benefit by its un-
remedied unfair labor practices. Under these circumstances, a
lawful impasse was not reached by the parties. Accordingly,
the Respondent could not lawfully declare an impasse on Janu-
ary 30, 2007. Concomitantly, the Respondent could not law-
fully implement portions of its so-called “last, best and final
offer” on February 1, 2007.
Therefore, by implementing portions of that offer, the Re-
spondent instituted unilateral changes in the terms and condi-
tions of employment of unit employees without prior notice to
the Union and without affording the Union an opportunity to
bargain with the Respondent with respect to these changes. See
NLRB v. Katz, 369 NLRB 736 (1962). Accordingly, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act, as
alleged in paragraph 14, and its subparagraphs 27(b) and 31 of
the first complaint.28
Before passing from the area of the Respondent’s pre-
impasse conduct, I will note that in her posthearing brief, coun-
sel for the General Counsel argues that the Respondent’s non-
compliance with multiple major portions of the agreement also
constitutes a total repudiation of the agreement. I concur. As
counsel enumerates, prior to declaring impasse, the Respondent
had engaged in the following acts of noncompliance: a delay in
remitting union dues and related information; its failure and
refusal to continue making required contributions to the Funds
and to submit related reports to the Funds; and a unilateral
change in and repudiation of the union access provisions.
The Board has found employers that engaged in similar non-
compliance with collective-bargaining agreements to have re-
pudiated their contracts. See Victory Specialty Packaging, Inc.,
331 NLRB No. 139 fn. 2 (2000) (not reported in Board vol-
umes) (failure to make health insurance premium payments and
to remit union dues constituted contract repudiation); see also
William Pipeline Co., 315 NLRB 630, 631–632 (1994). In
Republic Die & Tool Co., 343 NLRB 683, 686 (2004), the
Board, in adopting the decision of its administrative law judge,
noted the “fundamental importance to employees of wage and
fringe benefit provisions,” and that an employer’s failure and
refusal to comply therewith effectively “guts” the agreement of
its meaningfulness to employees.
Accordingly, I believe that the Respondent’s conduct in not
complying with multiple major portions of the agreement as
alleged in paragraphs 7, 8, and 10, of the first complaint consti-
tuted a general repudiation of the agreement in violation of
Section 8(a)(1) and (5) of the Act.29
D. Postimpasse Conduct
1. Employee wage rate information request
Following the Respondent’s declaration on January 30, 2007,
that impasse had been reached in negotiations, and its imple-
mentation of certain provisions of its so-called last, best, and
final offer on February 1, 2007, the parties had one additional
negotiation session on February 12, 2007. This session was

28 Having found that due to the Respondent’s unremedied unfair la-
bor practices, it could not lawfully declare an impasse, it is unnecessary
for me to determine whether the Union or the Respondent was at fault
in a delay that ensued regarding the Union’s request to conduct an audit
of the Respondent’s financial books and records.
29 This underlying conduct by the Respondent has been fully liti-
gated. As noted earlier, an unpleaded but fully litigated matter may
support an unfair labor practice finding despite the lack of an allegation
in the complaint. (See cases cited under fn. 23, supra.) Therefore, due
process has not been abridged.
Further, as I have concluded that the Respondent’s conduct consti-
tuted a general repudiation of the agreement, I need not consider the
General Counsel’s alternate contention that the Respondent’s conduct
constituted at least an unlawful partial modification of the agreement,
as alleged in pars. 13(b) and 28 of the first complaint.
WILSHIRE PLAZA HOTEL 329
held at the request of the Union. According to the testimony of
Walsh, at that final session he asked for information regarding
the new wages being paid to housekeepers and cooks. Appar-
ently the Respondent had instituted a two wage system for
housekeepers and something similar for cooks. The Union did
not understand how the Respondent decided to pay some
housekeepers and cooks the lower rate and others a higher rate.
It did not seem to be based on seniority. Walsh testified that he
asked for information explaining on what basis the Respondent
decided to pay housekeepers a particular rate. At the same
time, he also asked for the Union to be provided with a list of
all the bargaining unit employees, including the housekeepers
and cooks, and their job titles, and new wage rates as estab-
lished by the Respondent. Walsh testified that while the Re-
spondent’s negotiators promised to provide this information,
none has been forthcoming.
Kaplan acknowledged that at the February 12, 2007 session,
Walsh made a request for a list of employee names, classifica-
tions, and postimplementation rates of pay for all bargaining
unit employees. Further, he admitted that Walsh asked for
information as to how the Respondent had placed employees
within a particular classification, as “there were two or three
different levels of cook and two or three different levels of
housekeepers.” Kaplan testified that he explained to Walsh that
it was based upon “experience in the industry.” In any event,
when Kaplan testified he could not remember the specific de-
tails. On cross-examination, Kaplan admitted that he never
responded to these union requests in writing. However, it does
appear that ultimately, on April 16, 2007, Kaplan sent Walsh a
letter with attachments containing “a list of current bargaining
unit members, together with their post-implementation classifi-
cation and wage rates.”30 (R. Exh. 1.) Still, nothing in this
document explains specifically why employees are placed in
any particular wage classification. Kaplan provided this list to
the Union following not only the oral request of February 12,
but also a subsequent written request from Walsh dated Febru-
ary 23, 2007. (GC Exh. 27.)
In his posthearing brief, counsel for the Respondent argues
that in fact some of this information was furnished to the Union
during negotiations. Counsel references notes taken during
negotiations by various union representatives. On pages 63 and
67 of those notes, dated February 12, 2007, there are some
cryptic references to cooks, and “HSKP,” presumably meaning
housekeeping employees, and the numbers of years of experi-
ence in the classifications. (R. Exh. 9, pp. 63 and 67.) How-
ever, after reviewing the notes, I am unclear as to which union
representative made the notes, and specifically what they estab-
lish, other than showing that the issue of classifications for
cooks and housekeeping employees was discussed.
Paragraphs 12(d), (f), and (g), and 31 of the first complaint
allege that the Union’s request of February 12, 2007, for infor-
mation as to how the Respondent differentiated between the

30 Walsh testified that he never actually received Kaplan’s letter
dated April 16, 2007, with the employee list allegedly attached to it.
However, as the letter appears to have been properly addressed and
both mailed and faxed to the Union’s office, I will assume that it was
received by the Union, even if Walsh did not personally see a copy.
housekeeping and cook classifications, was necessary and rele-
vant to its performance as the collective-bargaining representa-
tive of the unit, and that the Respondent violated Section
8(a)(1) and (5) of the Act by failing to furnish that information.
Similarly, paragraphs 12(e), (f), and (g), and 31 allege that the
Union’s request of February 12, 2007, for a list of all unit em-
ployees including their names, job titles, and postimpasse im-
plementation wage rates, was necessary and relevant to its per-
formance as the collective-bargaining representative of the unit,
and that the Respondent violated Section 8(a)(1) and (5) of the
Act by failing to furnish that information. In my view, these
two separate allegations regarding information requests are
intimately connected and need to be viewed collectively, as the
information was requested by Walsh at the same negotiation
session, February 12, 2007, in an effort to understand what
wage rates the Respondent had unilaterally implemented on
February 1, 2007.
The parties stipulated that, since about February 12, 2007,
orally, the Union has requested that the Respondent furnish it
with a list of all unit employees including their names, job ti-
tles, and postimpasse implementation wage rates. Further, they
stipulated that this information is necessary for, and relevant to,
the Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the unit. (Jt. Exh. 1, par. 15.)
The Union’s oral request of February 12, 2007, for the informa-
tion concerning how the Respondent differentiated between the
housekeeping and cook classifications is no less necessary for,
and relevant to, the Union’s performance of its collective-
bargaining duties, and I so find.
As the Union was entitled to receive all the information re-
quested on February 12, 2007, the only remaining question is
whether the Respondent furnished that information. It is sig-
nificant to note that the Union needed this information because
the Respondent had unilaterally changed the wage rates of unit
employees in violation of the Act. The only response to the
Union’s information request that is apparent from the evidence
is a partial oral response on February 12 concerning the cook
and housekeeping classifications, but seemingly without any
indication of the wage rates being paid to respective classifica-
tions (R. Exh. 9) and then, ultimately, the written list of names,
wage rates, and classifications attached to Kaplan’s letter of
April 16, 2007 (R. Exh. 1).
It appears to me from the cryptic union bargaining notes that
Kaplan’s response of February 12, 2007, was inadequate. The
response was incomplete, giving classifications for cooks and
housekeepers without any apparent tie to wage rates. Further,
the list of April 16, 2007, while it did provide employee names,
classifications, and wage rates for unit employees, was received
over two months after the February 12 request. This was an
untimely response, especially in light of the Union’s need to
have the information quickly in order to react to the Respon-
dent’s unilateral changes in employee wages.
The Board has indicated that what constitutes reasonable
promptness must be determined under the totality of the cir-
cumstances in each case. There is no “per se” rule, rather, what
is required is a reasonable good-faith effort to respond to the
request as promptly as circumstances allow. Allegheny Power,
339 NLRB 585, 587 (2003). Under the circumstances of this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD330
case, I believe that a 2-month delay was not reasonable. None
of the information sought by the Union was particularly com-
plex, and was likely readily available from the Respondent’s
payroll and personnel records, which should have been easily
accessed through its computer system. Samaritan Medical
Center, 319 NLRB 392, 398 (1995). After all, it was the Re-
spondent that had just unilaterally implement its wage propos-
als, as contained in its so called last, best, and final offer, and it
certainly should have had that information readily available.
There is simply no evidence to suggest that a 2-month delay in
furnished the union with the requested information was any-
thing but unreasonable. See Postal Service, 332 NLRB 635,
641 (2000) (Board found a violation where delay in furnishing
the information was 5 weeks); Woodland Clinic, 331 NLRB
735 (2000) (7-week delay unreasonable); Zikiewicz, Inc., 314
NLRB 114 (1994) (2-month delay unreasonable).
Based on the totality of the circumstances in this case, I be-
lieve that the Respondent was under a legal obligation to make
the requested information immediately available to the Union.
Instead, the Respondent only furnished the Union with partial
information regarding the cook and housekeeper classifications
and pay rates, and unreasonably delayed for 2 months in fur-
nishing the list of employee names, classifications, and wage
rates for all unit employees. Accordingly, I find that the Re-
spondent has violated Section 8(a)(1) and (5) of the Act, as
alleged in paragraphs 12(d), (e), and (f), (g), and 31 of the first
complaint.
2. Group interrogation and statement of futility
by Jihan Kim
Paragraphs 24(a) and 33 of the first complaint allege that on
February 1, 2007, the Respondent, by Jihan Kim, interrogated
employees regarding their union activities in violation of Sec-
tion 8(a)(1) of the Act. Paragraphs 24(b) and 33 of the first
complaint allege that on that same date Kim made a statement
of futility regarding union representation by informing employ-
ees that they no longer had a union. According to the com-
plaint, these incidents occurred near the doorway of Haena
Kim’s office.
As noted above, on February 1, 2007, the Respondent unilat-
erally implemented its so-called last, best, and final offer.
There is no dispute that this included significant wage reduc-
tions for unit employees. Housekeeper and Union Steward
Griselda Campos testified that her hourly wage rate was re-
duced from $11.42 per hour to $7.55 per hour. Other employ-
ees had their wages similarly reduced and they began to gather
and talk about the reductions. A group of 15–20 employees
decided to go to the office of Human Resources Director Haena
Kim and confront her about the wage reductions. They did so
at about 3:50 p.m. on February 1.
According to Campos, Haena Kim showed each of the as-
sembled employees a paper containing the amount of that per-
son’s new wage rate. This meeting with Haena Kim lasted
about 10 minutes. However, some employees, including Cam-
pos, were still standing outside the personnel office when they
were approached by Jihan Kim. Campos testified that Jihan
Kim addressed her and said, “Why are you going on strike?
You don’t have a union anymore.” She testified that he seemed
angry and upset. In response, Campos answered him, “We
don’t have a contract, but have a union. All that you took,
you’re going to pay back.” She indicated Jihan Kim was just
“laughing” at the employees, “mak[ing] fun . . . and mock[ing]
them.” That conversation lasted approximately 1 minute.
Jihan Kim testified that he recalls that on February 1 “there
was a lot of commotion that day” outside of Haena Kim’s of-
fice, with 8 to 10 housekeepers standing around. He claims that
they said they were “not happy about the wage cuts” and were
“not happy about being part of the Union.” Kim alleges that he
said, “If you’re not happy about the Union, why do you support
the Union?” According to Kim, no further conversation en-
sued.
In his posthearing brief, counsel for the Respondent seemed
to suggest that Jihan Kim should be credited over Campos be-
cause he is fluent in English and she is not. However, I cer-
tainly do not believe that proficiency in the English language is
any basis upon which to judge credibility. Campos testified in
both English and Spanish. Clearly, Spanish is her primary
language, yet I was able to understand her when she was speak-
ing English. Jihan Kim speaks English fluently, but indicated
he does not speak Spanish. The two conversed only in English
on February 1 outside the personnel office. I do not believe
that there was any difficulty in Campos and Kim conversing in
English during the conversation in question, and neither witness
suggested otherwise.
For the reasons that I stated earlier, I did not find Jihan Kim
to be a credible witness. Campos, on the other hand, seemed to
me to be highly credible. She was certainly very emotional
while testifying, seemingly close to tears on several occasions.
Her testimony seemed very genuine and she spoke in a simple,
direct way, without resort to exaggeration or embellishment.
There is no question that as the union steward she was as much
of a partisan as was Kim, the assistant to the Respondent’s
president. However, I did not sense that she was allowing her
personal feelings of loyalty to the Union to distort her testi-
mony. What she said was inherently plausible and consistent
with the other credible evidence of record. Certainly, as the
union steward, she knew that the Union had not been responsi-
ble for the wage reduction, and, thus, would have been very
unlikely to have expressed displeasure with the Union, as sug-
gested by Kim. Accordingly, I credit her version of the conver-
sation with Kim, to the extent there are variances.
I conclude that Jihan Kim did say to Campos and other as-
sembled employees, “Why are you going on strike? You don’t
have a union anymore.” His question about a strike constituted
unlawful interrogation of union activity. While an employer
may, under certain circumstances, make a limited inquiry as to
employees’ strike intentions, so that it can make arrangements
for potential replacements, there must first be a reasonable
basis to fear an imminent strike. Mosher Steel Co., 220 NLRB
336 (1976); Industrial Towel & Uniform Service Co., 172
NLRB 2254 (1968). However, an employer cannot simply rely
on unsubstantiated rumor or mere speculation of a strike in
order to justify questioning employees about their intentions in
the event of a strike. Mosher Steel Co., supra; W. A. Sheaffer
Pen Co., 199 NLRB 242 (1972).
WILSHIRE PLAZA HOTEL 331
In the matter before me, there is no evidence that the em-
ployees were considering a strike, or that the Respondent’s
managers were of such a belief. There has not even been a
suggestion that there was such a rumor. Under such circum-
stances, the Respondent was not at liberty to question employ-
ees about whether they were going to strike. To do so certainly
interfered with, restrained, and coerced the employees in the
exercise of their Section 7 rights. Thus, Kim’s question about a
strike directed to Campos and other bargaining unit employees
constituted unlawful interrogation in violation of Section
8(a)(1) of the Act, as alleged in paragraphs 24(a) and 33 of the
first complaint.
Further, Kim’s statement that the employees no longer had a
union was a statement of futility. Of course, the opposite was
true. The Union was still the exclusive collective-bargaining
representative of the unit employees. The Respondent’s unilat-
eral implementation of its so-called last, best, and final offer
did not change the Union’s representational status. For Kim to
have suggested otherwise was not only untrue, it was a dispar-
agement of the Union, and constituted notice to the employees
that any collective action was futile. As such, it interfered with,
restrained, and coerced the employees in the exercise of their
Section 7 rights. Sprain Brook Manor Nursing Home, 351
NLRB 1190 (2007); Goya Foods, 347 NLRB 1118 (2006);
Basic Metal & Salvage Co., 322 NLRB 462, 463–464 (1996).
Accordingly, Kim’s statement that the employees did not have
a union anymore constituted a violation of Section 8(a)(1) of
the Act, as alleged in paragraphs 24(b) and 33 of the first com-
plaint.
3. Statement of futility by Dana Taus
The parties stipulated that Dana Taus,31 the Respondent’s
executive chef and director of food and beverage, was a super-
visor and agent of the Respondent. It is alleged in paragraphs
25 and 33 of the first complaint that on about February 3, 2007,
Dana Taus made a statement of futility regarding union repre-
sentation by informing employees that they have no union, in
violation of Section 8(a)(1) of the Act.
Gabriel Botello is employed by the Respondent as a dish
washer. He testified on behalf of the General Counsel that in
February 2007 he was called into Dana Taus’ office. As Taus
does not speak Spanish and Botello does not speak English, a
fellow employee, a cook, who speaks both English and Span-
ish, was present to act as translator.
Counsel for the General Counsel attempted to ask Botello
questions about what Taus said to him regarding the Union.
The statement allegedly made by Taus was to be used in sup-
port of the allegation that Taus had made a statement of futility
regarding the Union. However, counsel for the Respondent
objected on the basis of hearsay, as any understanding by Bo-
tello of what Taus was saying came through the words of the
employee translator. As the Spanish translation from the cook
was being used to establish “the truth of the matter asserted,”
namely that the same words had been spoken by Taus in Eng-

31 During the hearing, employee witnesses frequently referred to
Dana Taus as Chef Dana.
lish, I precluded its admission as hearsay, and sustained counsel
for the Respondent’s objection.
However, I informed counsel for the General Counsel that I
would permit the cook to testify regarding his translation of
Taus’ comments about the Union. Such testimony from the
cook would not constitute hearsay, as he would be subject to
cross examination regarding the words allegedly spoken by
Taus and on his ability to translate those words from English
into Spanish. Counsel for the General Counsel requested that
she be given permission to call this witness (the cook/trans-
lator) out of turn, when the hearing next convened. I granted
her request. However, when the hearing reconvened, counsel
indicated that the witness, although previously indicating a
willingness to testify, would apparently not be doing so. In
fact, this individual did not testify.
The General Counsel has failed to meet her burden of proof
regarding this allegation. Insufficient evidence was offered to
establish that Taus made the statement attributed to him in the
complaint. Therefore, I shall recommend that paragraph 25 of
the first complaint be dismissed.
4. Surveillance and/or impression of surveillance
of demonstrators
During February 2007, following the Respondent’s unilateral
implementation of portions of its so-called last, best, and final
offer, members of the bargaining unit, along with their support-
ers, held a series of demonstrations (also referred to as protests
or job actions) outside the front of the Hotel. From the undis-
puted record evidence, it appears that demonstrations were held
on at least February 8, 10, 14, 15, 17, and 21, 2007.32 It is al-
leged in paragraphs 20 and 33 of the first complaint that on
various dates in February 2007, the Respondent engaged in
surveillance or creating the impression of surveillance of its
employees’ union activity in violation of Section 8(a)(1) of the
Act. The General Counsel contends that these acts of surveil-
lance were committed in conjunction with the employees’ par-
ticipation in the February 2007 demonstrations mentioned
above.
These demonstrations were held on the sidewalk in front of
the Hotel, running along Wilshire Boulevard. According to
Oscar Salazar, and various employee witnesses, on February 8,
2007, approximately 60–80 individuals participated in the pro-
test, with 35–40 being bargaining unit members. The protest
took place at noon so that employees on lunchbreak could par-
ticipate, and lasted about an hour. The protests were organized
by the Union and the demonstrators chanted and carried picket
signs along Wilshire Boulevard in front of the Hotel. Some of
the signs read: “UNITE HERE,” No Insurance at the Wilshire
Plaza,” “Unfair,” and “We Want Justice.”
Salazar testified that on February 8, 2007, during the demon-
stration, he observed Robbie Perez, Respondent’s administra-
tive assistant and an admitted supervisor and agent, standing
across Wilshire Boulevard aiming a camera at the demonstra-
tors. He also observed Dana Taus standing in the Hotel’s
driveway aiming a camera toward the demonstrators about 6

32 While there may well have been other demonstrations held on
other dates in February, these appear to be those dates where agents of
the Respondent are alleged to have engaged in acts of surveillance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD332
feet away. Both men continued to take pictures of the assem-
bled protesters throughout the entire 1-hour period of the job
action. Neither Taus nor Perez testified, and I will draw an
adverse inference from their failure to do so. Salazar’s testi-
mony seemed credible, and as noted earlier, I found him to be
so.
The Respondent does not really make much of an effort to
challenge the witness testimony that its managers were actively
photographing protesters during the demonstrations. In his
post-hearing brief, counsel for the Respondent merely argues
that there was no evidence offered to suggest that “senior man-
agement” was aware of the photography. However, I am at a
loss to understand what difference that would make. Surveil-
lance by its agents and supervisors binds the Respondent. Fur-
ther, the individuals named by witnesses as having engaged in
acts of surveillance seem to me to be highly placed managers.
Counsel’s argument is simply without merit.
On February 10, 2007, there were apparently two demonstra-
tions, one at 7:30 a.m., and a second at about noon. Employee
Jose Luis Campos, a waiter, participated in the noon job action.
He testified that on that occasion there were approximately 40
demonstrators, of which about half were employees of the Ho-
tel. For approximately 15–20 minutes, he observed Dana Taus
standing in the entry way of the Hotel, 25 to 30 feet from the
protesters, aiming his camera at them. Once again, Taus did
not bother to rebut this testimony, and I have no reason to doubt
Campos’ version.
Kitchen worker Enrique Camberos testified that on February
14, 2007, he participated in a job action during his lunchbreak
at noon. There were approximately 20–30 of the Respondent’s
employees participating in the demonstration. For about 20
minutes, Camberos observed Dana Taus standing in the hotel
driveway, facing the demonstrators, and taking pictures of them
from a distance of about 5 feet. As Taus did not testify to rebut
this accusation, I shall accept the testimony of Camberos, who
seemed credible, as accurate.
The following day, February 15, 2007, employees again par-
ticipated in a job action on the sidewalk in front of the Hotel at
about noon. According to Union Representative Salazar, there
were a total of about 60–80 individuals participating, with ap-
proximately 30–40 being employees of the Respondent. Sala-
zar noticed Dana Taus taking pictures of the demonstrators
from the driveway of the Hotel. Robbie Perez was also present
and pointing his camera in the direction of the demonstrators.
Perez was standing near the “Tulips Garden”33 sign in the front
of the Hotel. Salazar testified that both Perez and Taus aimed
their cameras at the demonstrators throughout the hour-long
protest. Once again, as neither Taus nor Perez testified, I will
credit the testimony of Salazar.
According to Salazar, there was another demonstration in
front of the Hotel on February 17, 2007, both in the morning at
about 7:30 a.m. and then again in the afternoon at about 5 p.m.
About 20–25 hotel employees participated in the morning ses-
sion. During that session, Salazar observed Dana Taus, who
was standing just inside the Hotel near the windows and glass

33 The “Tulips Garden” sign is prominently displayed above the
sidewalk in front of the Hotel. (See photograph, GC Exh. 18a.)
door, pointing his camera toward the protesters. Also during
the morning session, Salazar observed Robbie Perez, who was
located along the hotel driveway and also at both ends of the
line of protestors at Normandie and Ardmore Streets,34 aiming
his camera at the protestors as they were walking in front of the
Hotel. As neither Taus nor Perez rebutted this testimony, I will
credit Salazar.
Another demonstration was held in front of the Hotel on
February 21, 2007. Again, Taus and Perez were present and
taking pictures. Salazar testified that he saw Perez on the
driveway about 6 feet from the protestors, taking pictures of
them. Taus was also standing near the driveway, about the
same distance from the protestors, taking their pictures. As
with all the other instances, no testimony was offered by Taus
or Perez. As Salazar’s testimony was not rebutted, I credit it.
A number of additional employee witnesses testified about
their participation in demonstrations outside of the Hotel in
February 2007, and of certain supervisors taking pictures of
employees during those demonstrations. While these witnesses
could not recall the specific dates in February 2007 when these
events occurred, their collective testimony only supports the
evidence that the Respondent’s managers were actively en-
gaged in photographing the demonstrators. Employee Noelia
Elena Lopez, cafeteria attendant, testified that at a demonstra-
tion in February 2007, outside the Hotel, she observed Jihan
Kim aiming a camera in the direction of the protestors, and
Dana Taus doing the same thing. Similarly, employee Jeffrey
Agerkop, a PBX operator, testified that at a demonstration in
February 2007, outside the Hotel, he observed Robbie Perez
taking pictures of the protestors. As with all the other in-
stances, neither Perez nor Taus testified to rebut these
charges.35 Jihan Kim did testify and denied taking any photo-
graphs of employees outside of the Hotel,36 or of directing other
supervisors to do so, or of seeing any of them doing so. How-
ever, for the reasons given earlier, I find Kim not to be credible.
Accordingly, I accept the testimony of employees Lopez and
Agerkop and conclude that Taus, Perez, and Kim were ob-
served photographing employees during demonstrations in
February 2007.37

34 Wilshire Boulevard runs parallel to the Hotel, with Normandie and
Ardmore Streets running perpendicular. The protestors walked back
and forth along Wilshire between Normandie and Ardmore.
35 Throughout this decision, I have drawn adverse inferences from
the failure to testify of many of the Respondent’s supervisors and
agents alleged to have engaged in unfair labor practices. Seda Specialty
Packaging Corp., 324 NLRB 350, 351 (1997); Grimmway Farms, 314
NLRB 73, 76 fn. 2 (1994).
36 Jihan Kim testified that he did photograph a number of individu-
als, whose identity he allegedly did not know at the time, and who had
“trespassed” on the Respondent’s property by entering the hotel lobby
in mass on a date in late December or early January 2007. As the first
complaint alleges in par. 20 that the unlawful acts of surveillance oc-
curred in the month of February 2007, it appears that this incident is not
being alleged as unlawful. Accordingly, I will not further consider it.
37 As with all employee witnesses called by the General Counsel
who testified while still employed by the Respondent, I conclude their
testimony should be entitled to greater weight as they testified against
their current employer’s interest. Such testimony is particularly reli-
able. It is given at considerable risk of reprisals, and, thus, not likely to
WILSHIRE PLAZA HOTEL 333
As testified to by Salazar and a number of employee wit-
nesses, there were at least six separate dates in February 2007
when a number of admitted supervisors and agents of the Re-
spondent photographed employees as they demonstrated on the
sidewalk in front of the Hotel. These demonstrations were
organized by the Union and were intended to protest the Re-
spondent’s unilateral implementation on February 1, 2007, of
portions of its so-called last, best, and final offer. That imple-
mentation significantly reduced the wages of bargaining unit
employees, eliminated the medical insurance coverage they had
previously enjoyed under the expired agreement, and made
other changes in their terms and conditions of employment.
The evidence of the Respondent’s managers repeatedly tak-
ing photographs of employee demonstrators is detailed, spe-
cific, and credible. The actions of Perez, Taus, and Jihan Kim
in taking pictures of these employees occurred over significant
periods of time on the various dates during which these em-
ployees protested. This conduct by the Respondent’s managers
was open and notorious.
It is beyond doubt that the protesting employees were en-
gaged in both union and protected concerted activity when they
were photographed by the Respondent’s supervisors and
agents. Board law is well established that while an employer’s
mere observation of public union activity on or near its prop-
erty does not constitute unlawful surveillance, photographing
such activity is unlawful because such pictorial recordkeeping
tends to create fear among employees of future reprisals. Na-
tional Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd.
157 F.3d 1268 (D.C. Cir. 1998); F. W. Woolworth Co., 310
NLRB 1197 (1993). It has the tendency to interfere with, re-
strain, and coerce employees in the exercise of their right to
engage in union and protected concerted activity.
As the Respondent does not even offer a justification for the
actions of its managers, there can be no doubt that the Respon-
dent’s pervasive photographing of its employees engaged in
legitimate Section 7 activity constituted unlawful surveillance
and creating the impression of surveillance. Accordingly, I
conclude that on multiple dates during the month of February
2007, the Respondent, by various agents, violated Section
8(a)(1) of the Act, as alleged in paragraphs 20 and 33 of the
first complaint.
5. Change in the lunchbreak policy for kitchen employees
It is alleged in paragraph 17 and its subparagraphs 31 and 32
of the first complaint that the Respondent unilaterally changed
the lunchbreak policy for its kitchen employees in violation of
Section 8(a)(1) and (5) of the Act; and took that action as dis-
criminatory retaliation against certain employees because of
their union and protected concerted activity in violation of Sec-
tion 8(a)(1) and (3) of the Act.
It is undisputed, and the parties stipulated, that prior to Feb-
ruary 14, 2007, the Respondent’s kitchen employees were per-
mitted to take their 30-minute lunchbreak whenever time per-
mitted between the hours of 11 a.m. and 2 p.m. (Jt. Exh. 1, par.

be false. See Homer D. Bronson Co., 349 NLRB 512, 550 (2007);
Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961); Earthgrains
Co., 351 NLRB 733, 737 fn. 18 (2007), citing Shop-Rite Supermarket,
231 NLRB 500, 505 fn. 22 (1977).
20(a).) Employee Juan Guardado, a cook, testified that he par-
ticipated in the demonstrations on the sidewalk in front of the
Hotel on February 10 and 14, 2007. In order to be available to
participate in the demonstration on February 14, Guardado took
his lunchbreak at 12 noon. His break lasted for 30 minutes,
after which he returned to work. Similarly, employee Enrique
Camberos, a kitchen worker, participated in the February 14
demonstration at 12 noon while on his 30-minute lunchbreak.
The following day, February 15, Camberos again participated
in the demonstration in front of the Hotel at 12-noon, during his
lunchbreak.
The parties stipulated that on February 15, 2007, the Re-
spondent, by Alex Moon, the director of banquets, orally and
by memorandum, changed the kitchen employees’ lunchbreak
policy by requiring that employees finish their lunchbreak by
12 noon unless otherwise authorized by a manager. (Jt. Exh.
15, par. 20(b) and Jt Exh. 16.) That memorandum, which is
addressed to all food and beverage employees, from Moon
states that failure to abide by it “will result in disciplinary ac-
tion.” Further, it shows on its face that copies had been sent to
Leo Lee, Jihan Kim, and Dana Taus.
Camberos and Jose Luis Campos, a waiter, testified that on
either February 15 or 16, 2007, between noon and 1:30 p.m.,
Moon called 10–12 kitchen employees into the kitchen. Dana
Taus was also present.38 Moon informed the employees that
they had to sign the lunch memo, which had apparently already
been posted. However, a number of employees, including
Camberos, Campos, and Guardado refused to sign. Both Taus
and Moon warned the employees that if they continued to re-
fuse to sign, they would be sent home. The employees contin-
ued to refuse to sign the memo, after which Taus and Moon left
the kitchen for approximately 5 minutes. Upon returning to the
kitchen, both Taus and Moon told the employees that as they
would not sign the memo, they should leave and go home. But
before they would leave, the employees asked for something in
writing explaining why they were being sent home.
Camberos spoke up and said that what the managers were
doing constituted “labor related harassment.” Taus responded,
telling Camberos that “[i]t was no harassment, [and] that Mr.
Leo Lee didn’t want any more union at that hotel.” Taus and
Moon then left the kitchen again for 2–3 minutes. When they
returned, Moon told the employees to go back to work. How-
ever, before they did so, Moon instructed Taus to take down
everyone’s’ name who had attended the meeting.
It is undisputed that before the issuance of the lunch memo
on February 15, the kitchen employees were free to take their
lunchbreak whenever they were available to do so between 11
a.m. and 2 p.m. However, since that date a number of these
employees, including Camberos and Guardado, have taken their
lunchbreak before 12 noon, so as to be in compliance with that
memo.
According to the testimony of Union Representative Salazar,
the Union only became aware of this new lunch policy for
kitchen employees when a group of workers contacted him.
Salazar testified that the Respondent did not give the Union

38 As neither Moon nor Taus testified, the events of that afternoon, as
told by a number of employee witnesses, remains unrebutted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD334
notice that it was going to implement this new policy, nor any
opportunity to bargain over it.
The Respondent has proffered no defense against this allega-
tion, other than to deny in its answer that it violated the Act. In
his posthearing brief, counsel for the Respondent is silent con-
cerning this issue. Also, as noted, Taus and Moon failed to
testify. Accordingly, I am left to conclude that the incident
occurred exactly as testified to by the employees, whose testi-
mony was consistent with each other and seemed credible.
The evidence is uncontested that on February 15, 2007,
Moon, orally and by memorandum, changed the kitchen em-
ployees’ lunchbreak policy by requiring that they finish their
lunchbreak by 12 noon. The Respondent made this change
unilaterally and without notifying the Union or affording the
Union an opportunity to bargain over the issue. This unilateral
change in their lunch period clearly affected the kitchen em-
ployees’ terms and conditions of employment. McCotter Mo-
tors Co., 291 NLRB 764, 769 (1988); see also Fresno Bee, 339
NLRB 1214 (2003). As such, it constituted a violation of Sec-
tion 8(a)(1) and (5) of the Act, as alleged in paragraphs 17 and
31 of the first complaint; and I so find.
The General Counsel also alleges that the Respondent’s es-
tablishment and issuance of this new lunchbreak policy violated
Section 8(a)(3) of the Act. I agree. In assessing whether the
Respondent’s action violated Section 8(a)(3) of the Act, it is
necessary to analyze the situation under the shifting analysis
burden of Wright Line, supra. Under that standard, approved
by the Supreme Court in NLRB v. Transportation Management
Corp., supra, the General Counsel must preliminarily establish
a prima facie case sufficient to support the inference that pro-
tected conduct was a “motivating factor” in the employer’s
decision. This showing must be by a preponderance of the
evidence.
In the matter before me, the General Counsel has established
that a number of the kitchen workers were engaged in union
activity, namely their gathering together with other bargaining
unit members to hold demonstrations on the sidewalk in front
of the Hotel in an effort to pressure the Respondent into reach-
ing an agreement with the Union over the terms of a new col-
lective-bargaining agreement. Union Representative Salazar
testified that a number of these demonstrations were held over
the noon hour lunch period in order to give bargaining unit
employees who were at work on those days an opportunity to
participate in the protest. A number of kitchen employees ac-
tively participated in these demonstrations during their lunch
period, including Juan Guardado and Enrique Camberos.
Clearly, the General Counsel has established that the Respon-
dent’s supervisors and agents had knowledge that unit employ-
ees, specifically certain kitchen workers, were participating in
the demonstration during their lunch period. In fact, certain
supervisors engaged in surveillance, including by photography,
of these and other employees while the employees were in-
volved in their Section 7 activity.
The kitchen employees suffered an adverse employment ac-
tion by having their lunch period changed from the previous
period of between the hours of 11 a.m. to 2 p.m., as time per-
mitted, to instead the more restrictive period of finishing lunch
by no later than 12 noon. Most significantly, the General
Counsel has established a link, or nexus, between the employ-
ees’ protected activity and the adverse employment action, that
being to restrict the kitchen employees’ ability to participate in
the lunchtime demonstrations by effectively preventing them
from taking their lunchbreaks during the period of time the
protests were scheduled at the noon hour.
Counsel for the General Counsel having established these
elements, a presumption is created that the adverse employment
action violated the Act. Tracker Marine, LLC, supra. The
General Counsel having done so, the burden then shifts to the
Respondent to show that the same action would have taken
place even in the absence of the protected conduct. See Mano
Electric, supra; Farmer Bros. Co., supra. Of course, the Re-
spondent has offered no evidence as to why it changed the
kitchen employees’ lunch period. It has offered no legitimate
reason for having done so. Accordingly, it has failed to rebut
the General Counsel’s prima facie case.
Further, by threatening the employees with being sent
home,39 a form of discipline, for refusing to sign this unlaw-
fully issued memo, the Respondent, through Taus and Moon,
was restraining and coercing the kitchen workers in their Sec-
tion 7 right to engage in union and protected concerted activity,
which constituted an independent violation of Section 8(a)(1)
of the Act.40 See Air Contact Transport, Inc., 340 NLRB 688,
697 (2003); Joe’s Plastics, 287 NLRB 210, 211 (1987); Vought
Corp., 273 NLRB 1290, 1295 fn. 31 (1987).
Therefore, based on the above, I conclude that the Respon-
dent has violated Section 8(a)(1) and (3) of the Act, as alleged
in paragraphs 17 and 32 of the first complaint, and as described
by me.
6. Failure to provide vacation pay
Paragraphs 13 and 31 of the first complaint allege that the
Respondent has failed and refused to provide four unit employ-
ees with their vacation pay in violation of Section 8(a)(1) and
(5) of the Act. In the joint stipulation between the parties, all
agreed that until at least January 31, 2007,41 the collective-
bargaining agreement (the agreement) between the Union and
the Respondent provided for employees to receive annual vaca-
tions with pay of 1 to 4 weeks, depending upon the employee’s
years of service with the Respondent. Further, the stipulation
provides that the following four unit employees were not paid
for the vacations they took during the enumerated time periods:
(1) Irma Mendez, November 15–December 15, 2006; (2) Maria
Carrillo, December 18–31, 2006; (3) Teresa Martinez, February
19–March 9, 2007; and (3) Brenda Cabrera, March 2–6, 2007.
(Jt. Exh. 1, par. 16.)
The agreement provides, under section 6(A), that employees
are entitled to 1 to 4 weeks of paid vacation depending on their
length of service. The agreement expired on December 24,

39 Presumably, “being sent home” meant without pay.
40 While the complaint does not specifically allege this independent
violation of Sec. 8(a)(1) of the Act, the underlying issue was raised and
fully litigated at the hearing, and I believe the resolution of the issue
does not abridge the Respondent’s right to due process or prejudice it.
(See cases cited above in fn. 23.)
41 This is the day before the Respondent unilaterally implemented its
so called last, best, and final offer.
WILSHIRE PLAZA HOTEL 335
2006. However, the right to receive vacation pay is one of the
provisions that generally survive contract expiration. Sage
Development Co., 301 NLRB 1173, 1178 (1991); Finger Lakes
Plumbing Co., 253 NLRB 406 (1980); High-Grade Materials
Co., 239 NLRB 947, 956 (1978).
Union Representative Salazar testified that the Union was
never informed by the Respondent that it was going to cease
making vacation payments to employees, nor was there any
request by the Respondent to bargain over its intention to cease
making vacation payments. As noted, the parties stipulated that
for the four employees named in the stipulation, they were not
paid for their vacations taken during the time periods enumer-
ated.
The Respondent offers no defense to this allegation. Coun-
sel for the Respondent’s posthearing brief is silent as to this
matter. However, during his testimony, the Employer’s presi-
dent, Leo Lee, testified that he learned in September 2007 that
the employees had not been paid for their vacation time. Ac-
cording to Lee, when he learned at a meeting attended by
housekeeping employees that certain employees had not re-
ceived their vacation pay under the terms of the expired con-
tract, he ordered his staff to issue the appropriate payroll checks
to those employees. Lee indicated that those employees have
now been paid. In any event, he denied ever instructing that
employees should not be paid for the vacations they had taken
under the terms of the expired agreement.
Whether the four employees in question were finally paid for
their vacations by some date in September 2007, there is no
dispute that for a significant period of time they had not been
paid. For a period of between 6 and 9 months, the four em-
ployees listed above were without compensation for their vaca-
tions. As the Respondent has offered no defense to this allega-
tion, I must conclude, based on Salazar’s testimony, that the
Respondent unilaterally changed the terms and conditions of
the agreement by discontinuing the disbursement of vacation
pay, without informing the Union of its intention or offering to
bargain with the Union regarding this issue. I find that this
conduct by the Respondent constitutes a violation of Section
8(a)(1) and (5) of the Act, as alleged in paragraphs 13 and 32 of
the first complaint.
7. Falsely blaming the Union
The second complaint42 alleges in paragraphs 8(a) and 11
that on about July 27, 2007, the Respondent, through Haena
Kim, violated Section 8(a)(1) of the Act by informing employ-
ees that their wages had been reduced because of the Union. It
is the General Counsel’s contention, as argued in her posthear-
ing brief, that this claim by Haena Kim falsely blamed the Un-
ion for the Employer’s adverse action in reducing employee
wages. The Respondent’s counsel did not address this allega-
tion in his posthearing brief, and Haena Kim did not testify.
Accordingly, the evidence offered by the General Counsel in
support of this allegation was unrebutted.
Lester Salazar is a room service waiter employed by the Re-
spondent. He testified that on July 27, 2007, he noticed, appar-

42 All the remaining unfair labor practice allegations discussed in this
decision are raised by the General Counsel in the second complaint.
ently for the first time, that his hourly wages had been reduced.
Salazar then went to the human resource office where he spoke
with Haena Kim, the Respondent’s director of human re-
sources. He complained to her that his hourly wage had been
reduced. Kim informed him that since February 1, 2007, his
paycheck had been a “mistake.”43 Salazar testified that he
asked Kim why the mistake had taken this long to discover, to
which he alleges Kim responded, “It was a union law.” He
claims that she repeated that statement three or four times.
While the statement, “It was a union law,” is somewhat am-
biguous, and any person knowledgeable about labor law and
collective-bargaining issues would likely conclude that the
statement really made no sense, Salazar was apparently unedu-
cated and uninformed about such matters. To him, Kim’s
statement seemed to place the blame for his wages suddenly
being reduced on the Union, his collective-bargaining represen-
tative. I conclude that it would have been reasonable for Sala-
zar, who was not educated in such matters, to have drawn such
a conclusion.
According to Salazar, while he and Kim were having their
conversation, a cafeteria worker named Noelia44 walked by and
stopped at the timeclock. When Kim left, Noelia walked up to
Salazar and asked him what was wrong. Salazar testified that
he responded that his wages had been reduced to $7.55 per
hour. Further, Salazar told Noelia that the reason he had been
given by Kim for the reduction was because there was a “union
law.”
Salazar testified that at about that time Kim walked out of
her office and told Salazar “not to talk with Noelia” because
“Noelia was still on the clock.” According to Salazar, Noelia
responded that she was no longer on the clock. However, Sala-
zar claims that Kim was unpersuaded and replied that he should
“still” not talk with her, and that he should “get out.” That
allegedly ended the conversation.
The Board has held that an employer “violates Section
8(a)(1) when it takes adverse action against employees and
falsely blames its actions on the union.” Webco Industries, 327
NLRB 172, 173 (1998). According to the Board, such conduct
violates the Act because it “coercively suggests to employees
that seeking union representation results in damage to their
terms and conditions of employment.” Id.
In the case at hand, the Respondent unilaterally implemented
a wage reduction for its employees on February 1, 2007, pursu-
ant to its so-called last, best, and final offer. Subsequently,
Haena Kim had her conversation with Lester Salazar in which
she falsely blamed the Union for his wage reduction. That

43 While not specifically testified to by Salazar, I will assume, based
on other evidence of record, that what Kim was referring to as having
happened in February 2007 was the Respondent’s unilateral implemen-
tation of portions of its so-called last, best, and final offer. That im-
plementation included significant wage reductions for bargaining unit
employees that went into effect on February 1. For what ever reason,
Salazar’s wages had not been reduced when his fellow employees’
wages were cut. Apparently, this error or oversight was corrected by
the Respondent beginning with Salazar’s paycheck of July 27, 2007.
44 Lester Salazar did not give a last name for Noelia, and I am uncer-
tain as to whether she is Noelia Elena Lopez, a cafeteria attendant, who
testified at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD336
conduct is a violation of Section 8(a)(1) of the Act, as alleged
in paragraphs 8(a) and 11 of the second complaint; and I so
find.
8. Prohibiting employees from speaking with each other
It is alleged in paragraphs 8(b) and 11 of the second com-
plaint that the Respondent, through Haena Kim, prohibited
employees from speaking to each other concerning their terms
and conditions of employment. The substance of this conversa-
tion is described in detail in the section immediately above. As
noted, Haena Kim informed Lester Salazar “not to talk with
Noelia,” while they were engaged in a conversation regarding
the reduction in Salazar’s wage rate. Kim repeated that prohi-
bition even after being informed by Noelia that she was no
longer on the clock. Kim punctuated her warning to Salazar by
telling him to “get out,” which he did. Since Kim failed to
testify and the Respondent offered no defense to this allegation,
I accept the testimony of Lester Salazar as credible.
It is well settled Board law that “[u]nder Section 7 of the
Act, employees have the right to engaged in activity for their
‘mutual aid or protection,’ including communicating regarding
their terms and conditions of employment.” Easter Seals Con-
necticut, Inc., 345 NLRB 836, 838 (2005), citing Kinder-Care
Learning Center, 299 NLRB 1171 (1990), citing Eastex, Inc. v.
NLRB, 437 U.S. 556 (1978). Further, it has been held to consti-
tute a violation of Section 8(a)(1) of the Act for an employer to
threaten an employee with unspecified reprisals in response to
her speaking with other employees about the employees’
“wages,” categorized as a “key objective of organizational ac-
tivity.” St. Margaret Mercy Health Center, 350 NLRB 203
(2007), citing NLRB v. Main Street Terrace Care Center, 218
F.3d 531, 537 (6th Cir. 2000), enfg. Main Street Terrace Care
Center, 327 NLRB 522 (1999).
In the matter before me, two employees were discussing a
wage reduction and the reason given by a supervisor and agent
of the Respondent for that reduction. This subject matter goes
to the heart of what is meant by a term and condition of em-
ployment. In ordering these two employees to cease having
such a conversation, Haena Kim was clearly interfering with,
restraining, and coercing employees in the exercise of their
Section 7 rights. Accordingly, I find that by this conduct the
Respondent has violated Section 8(a)(1) of the Act, as alleged
in paragraphs 8(b) and 11 of the second complaint.
9. Leo Lee’s meeting with employees on
September 7 and 18, 2007
The General Counsel alleges in the second complaint, para-
graphs 7 and 10, that Leo Lee met with unit employees in the
employee cafeteria on September 7 and 18, 2007, and that in
the course of doing so bypassed the Union and dealt directly
with its unit employees in violation of Section 8(a)(1) and (5)
of the Act. Further, in paragraph 9 and its subparagraphs, and
11 of the second complaint, the General Counsel alleges that
during these two meetings Lee, by various actions and state-
ments, interfered with, restrained, and coerced employees in the
exercise of their Section 7 rights in violation of Section 8(a)(1)
of the Act.
In supporting these allegations, counsel for the General
Counsel relies primarily on the testimony of three employee
witnesses, Lester Salazar, Noelia Elena Lopez, and Griselda
Campos. In defending against these charges, the Respondent
offered the testimony of its president, Leo Lee, and his assis-
tant, Jihan Kim. In his posthearing brief, counsel for the Re-
spondent argues that I should credit the testimony of Lee and
Kim and not that of the employees.
Earlier in this decision I indicated in detail my reasons for
discrediting both Lee and Kim. For the reasons expressed
therein, I continue to find Lee and Kim incredible. On the
other hand, I found the testimony of the above-three named
employees to be genuine, candid, and straight forward. They
seemed to testify without guile, exaggeration, or embellish-
ment. Further, for the most part, their testimony supported each
other and was inherently consistent with the other credible evi-
dence of record. Regarding the two meetings in question and
the alleged statements of Lee attributed to him by Salazar, Lo-
pez, and Campos, their testimony had the “ring of authenticity”
to it. Finally, I am mindful of, and in agreement with, that line
of cases that generally hold that employee witnesses who testify
adversely to their current employer are likely more credible
than not, as they risk significant pecuniary damage in testifying
against their employer. See Flexsteel Industries, supra; Gold
Standard Enterprises, supra; Federal Stainless Sink Div. of
Unarco, supra; Georgia Rug Mills, supra.
Also, I am not persuaded otherwise by counsel for the Re-
spondent’s argument that as Lee spoke to these employees in
English, their lack of proficiency in English should be resolved
against them since an interpreter was used who could have
made mistakes in translating Lee’s comments into Spanish, the
native language of the three employees. From my observation
of the employees in question during the hearing, it was apparent
that while Spanish was certainly their best language, each of
them understood and could communicate in basic English.
Further, as the party suggesting that the interpreters used at the
meetings were inadequate, the Respondent has the burden of
proffering evidence to support that claim. No such evidence
was forthcoming. Considering that these two meetings were
called by the Respondent during company time and presumably
the employee interpreters were selected by the Respondent’s
managers, the Respondent would be hard pressed to now offer
evidence to establish that it had made a bad selection.
Accordingly, where ever Kim’s or Lee’s testimony is at vari-
ance with that of Campos, Salazar, or Lopez, I will credit the
testimony of the employees over that of the two supervisors.
There are many such variances.45
E. The Meeting of September 7, 2007
The Respondent’s president, Leo Lee, called a meeting of
housekeeping employees for September 7, 2007, to begin about
4 p.m. in the employee cafeteria.46 There were about 15–20
employees in attendance, plus a number of managers, including

45 As the testimony of employees Salazar, Campos, and Lopez was,
for the most part, corroborative of each other, I will note the events of
the two employee meetings without always indicating which employee
witness was so testifying.
46 While there may have been employees assigned to other depart-
ments present, the attendees for both the September 7 and 18, 2007
meeting were primarily from the housekeeping department.
WILSHIRE PLAZA HOTEL 337
Lee, Haena Kim, Jihan Kim, and others. Only Lee and Jihan
Kim testified at the hearing on behalf of the Respondent. Lee
conducted the meeting, which lasted approximately 1 hour and
15 minutes.
Lee spoke in English. Initially, David, an employee from
housekeeping, translated Lee’s remarks into Spanish, but within
10 minutes Lester Salazar, a room service waiter, took over the
translating duties. Lee began the meeting by saying that the
housekeeping supervisor had asked him to hold this meeting,
and that if employees had any questions, they should ask him,
because he was there to answer them. An employee asked why
he had lowered employee wages and why the employees no
longer had insurance. According to Lester Salazar, Lee re-
sponded that it was because he did not like the Union. The
same employee mentioned to Lee that she had sick children and
needed Lee to report her hours of work to the trust fund so that
she could qualify for medical insurance. According to Griselda
Campos, Lee said that he would send a letter to Kaiser (the
Fund’s insurance carrier) to regain the insurance coverage for
the complaining employee. Lee added that he would pay each
employee who purchased medical insurance a reimbursement
of up to $125, if the employee would bring in a receipt for the
purchase.47
During the meeting, Campos asked why some housekeepers
were paid $7.55 per hour and others were paid $8.05 per hour.
Lee responded that it was due to classifications, but that he was
going to bring the matter to the attention of his attorney to see
whether he could pay everyone $8.05 per hour.
Salazar testified that another employee complained about not
being paid for her vacation time. Lee said that she would be
paid for her vacation at her old salary, even if he had to pay her
out of his own account. Then, according to Campos, Lee said
that the Union cost him too much money. He said that the Un-
ion had cost him $60,000, and that he could no longer afford it.
He also mentioned that the Union cost him $3.54 per hour for
each employee. Lee offered the employees $2000 to be used to
investigate the Union. According to Campos, when Lee said
this he patted the right side of his hip.
One of the employees, Eriberto, spoke up and asked Lee how
much he was willing to pay the employees, and whether he
would give them medical insurance, vacation and holiday pay.
Lee responded that he would be speaking with his attorney.
But, without the Union, he would bring everything back to
normal, including the former wages, paid vacations, and full
insurance benefits. Further, he told them that he would be able
to give them all of this, including health insurance, vacations,
and holidays, but that the employees would have to send a letter
to the Union “renouncing” it.
According to Lopez, Lee reiterated that he did not want a un-
ion at the Hotel. He said that it was costing him too much
money and that 5 or 10 years could pass, and he would still not
want a union. Campos testified that she spoke up and said that
the employees wanted a union. She told him that with the Un-
ion they had employment protection, eight paid holidays, 3-
week vacations, and medical insurance. However, this appar-

47 While not specifically stated, I assume that this reimbursement
was meant to be for up to $125 per month.
ently was not what Lee wanted to hear, because he said that if
he did not reach an agreement with the Union he would turn the
Hotel into condos.
Salazar testified that toward the end of the meeting, an em-
ployee named Rita asked Lee if without the Union he would
return the money that had been taken from the employees since
February 1, 2007. Lee responded that he would do so, even if
he had to pay it back from his own account, little by little
through payroll checks. That concluded the meeting of Sep-
tember 7.
F. The Meeting of September 18, 2007
Leo Lee’s followup meeting with the housekeeping employ-
ees was held on September 18, 2007, again in the cafeteria at
about 4 p.m. There were approximately 15 employees present,
along with Lee, Jihan Kim, and others managers. Initially,
Lester Salazar was used to translate Lee’s comments into Span-
ish, but after a short time, a woman described as Korean, whose
name is unknown, was asked to translate in place of Salazar.
Lee began the meeting by telling employees that he had spo-
ken to his attorney and now had the answers to the employees’
questions. Lee said that all the housekeeping employees would
now be paid $8.05 per hour. Additionally, they would be re-
ceiving five paid holidays, and those owed vacation pay under
the old wage rate would be receiving that amount. Further, he
would be writing a letter to the trust fund for the employee who
had companied about not being able to provide medical care for
her sick children, so that the Fund was aware of the number of
hours she had worked. He indicated that he would be doing the
same for other employees as well.48
Lee said that he had spoken with his lawyer and he would be
able to pay $11 an hour, provide insurance coverage, paid holi-
days, and a raise every 3 months, but employees would first
have to individually go to the union office and “renounce” the
Union. All three employee witnesses who testified indicated
that Lee said essentially the same thing, and all three insisted
that Lee specifically used the word “renounce.” Both Lee and
Jihan Kim denied any such reference and denied Lee ever used
the word “renounce.” However, for the reasons previously
given, I continue to credit the testimony of the three employees
over that of Lee and Kim. The two managers’ bare denials are
unbelievable when confronted by the detailed and generally
consistent testimony of Salazar, Campos, and Lopez.
According to the testimony of Lopez, Lee specifically an-
swered Eriberto’s question from the first meeting and indicated
that if Eriberto “renounced the Union,” he would be paid what
he had previously earned, along with his previous vacation and
health insurance benefits. Near the end of the meeting em-
ployee Roberto Gamez spoke up and asked Lee why he didn’t
just try negotiating with the Union, as the Hotel had lost busi-
ness to other hotels because of the dispute with the Union. Lee
answered that he did not want a union at the Hotel, and the
Union did not bring any business to the Hotel. Both Salazar

48 Frankly, I am unclear as to what good Lee thought it would be to
report to the Fund the number of hours worked by employees. The
Respondent had stopped making payments to the Fund on behalf of
employees and that was the reason the employees were being denied
insurance coverage.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD338
and Campos indicated that Lee repeated several times that he
did not want a union at the Hotel, and each time that he said so
he would pass his hands, one over the other, in a gesture that
the undersigned would describe as meaning Lee’s relationship
with the Union was over. That concluded Lee’s second meet-
ing with the housekeeping employees.
G. Direct Dealing with Employees
It is the General Counsel’s position that Lee, by conducting
the meetings of September 7 and 18, unlawfully bypassed the
Union and engaged in direct dealing with employees in viola-
tion of Section 8(a)(1) and (5) of the Act. Lee denied most of
the statements attributed to him by Salazar, Campos, and Lo-
pez, in particular those dealing with the Union or his feelings
about the Union. While I have discredited those denials, even
Lee acknowledged that he called and conducted both meetings
because he had been told that housekeeping employees wanted
to have him answer certain questions. He admitted writing
down the questions they wanted answered, which questions
involved issues of wages, holidays, vacation, and health insur-
ance. Further, Lee freely admitted that he informed the em-
ployees on September 7 that he would discuss their concerns
with his attorney and get back to them with answers as soon as
he could.
Progressing to the second meeting on September 18, Lee
admitted that he came back with answers to the questions asked
by employees at the first meeting. He admitted telling the em-
ployees that all housekeepers would now be making $8.05 per
hour; four employees who had not received any vacation pay
would now be paid; employees would be reimbursed up to
$125 if they produced a receipt for medical insurance; and he
would be providing the complaining employees with proof of
the number of hours worked so that they might have the trust
fund credit them with those hours for medical insurance pur-
poses.
Further, Lee contends that when at the second meeting em-
ployees told him that they no longer liked the Union, that he
merely informed them that in that event they could tell the Un-
ion how they felt, and that they no longer wanted the Union to
represent them. Of course, when on cross-examination, Lee
was asked specifically who had expressed their displeasure
with the Union, he could not recall anyone by name. I found
such responses from Lee to be particularly self-serving, and I
am not at all convinced that any employees expressed unsolic-
ited displeasure with the Union. On the other hand, I think it
much more likely that, as testified to by the employee wit-
nesses, Lee used the two meetings as occasions to denigrate the
Union and indicate his displeasure with the Union, and his in-
tent to reward the employees if they rejected the Union.
In determining whether an employer has engaged in direct
dealing with employees in violation of Section 8(a)(5) of the
Act, the Board has set forth a number of criteria to be applied.
These criteria enumerated in Southern California Gas Co., 316
NLRB 979 (1995), are as follows: (1) that the employer was
communicating directly with union-represented employees; (2)
the discussion was for the purpose of establishing or changing
wages, hours and terms and conditions of employment or un-
dercutting the union’s role in bargaining; and (3) such commu-
nication was made to the exclusion of the union. See also Per-
manente Medical Group, 332 NLRB 1143 (2000); James
Heavy Equipment Specialists, Inc., 327 NLRB 910 (1999).
Based on the above criteria, there is no doubt that the Re-
spondent’s president engaged in direct dealing with employees
at the meetings he held on September 7 and 18. Lee communi-
cated directly with bargaining unit employees regarding their
complaints over wages, insurance, vacations, holidays, and
other terms and conditions of employment, and his efforts to
ameliorate those complaints. These meetings were held spe-
cifically to the exclusion of the Union, where Lee engaged in a
very deliberate and unsubtle attempt to provide the employees
with a better deal than the Respondent had offered to the Union
during negotiations. Not only were those efforts intended to
undercut the Union’s position as bargaining unit representative,
but Lee also attempted to do so even more directly, through his
statements disparaging the Union.
Lee admitted telling the employees at the first meeting that
he would be taking their problems to his attorney for discus-
sion, and that he would be getting back to them with a decision
as to whether the Respondent could satisfy their needs. He did
just that when at the second meeting he informed them that the
Respondent would, among other improvements in their wages
and working conditions, be giving all housekeepers the higher
pay of $8.05 and providing paid vacations and medical insur-
ance.
Based on the credible testimony of employee witnesses Sala-
zar, Campos, and Lopez, as well as direct admissions by Lee
himself, there is no doubt that Lee engaged in blatant direct
dealing with members of the bargaining unit. See Southern
California Gas Co., supra; Permanente Medical Group, supra;
James Henry Equipment, supra. Accordingly, I find that the
Respondent has violated Section 8(a)(1) and (5) of the Act, as
alleged in paragraphs 7 and 10 of the second complaint.
H. Lee’s Other Unlawful Conduct at the
September Meetings
It is the position of the General Counsel that not only did Lee
engage in direct dealing with employees on September 7 and
18, 2007, but, through his statements on those dates, the Re-
spondent also engaged in numerous independent violations of
Section 8(a)(1) of the Act, as alleged in paragraphs 9(a–j) and
11 of the second complaint.
Paragraph 9(a) of the second complaint: Lester Salazar testi-
fied that at the meeting of September 7, 2007, fellow employee
Teresa Martinez asked Lee what the reason was for lowering
wages and discontinuing the medical insurance coverage. Ac-
cording to Salazar, Lee responded by saying that he did not like
the Union. For the reasons noted earlier, I credit Salazar and
believe that Lee made the statement attributed to him, which
statement essentially placed the blame on the Union for the
Respondent’s decision to reduce or eliminate its employees’
wages and benefits. Such statements restrain and coerce em-
ployees in the exercise of their Section 7 rights. Webco Indus-
tries, 327 NLRB 172 (1998). Accordingly, I conclude that by
Lee’s statement the Respondent has violated Section 8(a)(1) of
the Act.
WILSHIRE PLAZA HOTEL 339
Paragraph 9(b) of the second complaint: Griselda Campos,
who I have credited, testified that at the September 7 meeting
Lee stated that he did not want a union, and he asked her why
she wanted a union. That elicited a response from Campos, the
union steward, as to the value of having a union. In any event,
Lee’s question constituted the unlawful interrogation of Cam-
pos. While she was a know union supporter and steward, ask-
ing her such a question at a meeting called by Lee, the Respon-
dent’s president, on company time and with her fellow house-
keepers present could only have been intended to embarrass
her, and to restrain and coerce her in the exercise of her right to
support the Union. Mickey’s Linen & Towel Supply, 349
NLRB 790 (2007); Pan-Oston Co., 336 NLRB 305 (2001);
Rossmore House, supra. As such, I conclude that by Lee’s
statement the Respondent has violated Section 8(a)(1) of the
Act.
Paragraph 9(c) of the second complaint: Both employees
Campos and Noelia Elana Lopez, who I have also found to be
credible, testified that at the meeting of September 7, Lee made
a number of disparaging remarks about the Union, after which
he stated that he would “give [anyone] $2000 out of [his] own
pocket [to] investigate the Union.” He made this statement
while “patting the right side of [his] hip.” Offering to pay em-
ployees a monetary reward for investigating Lee’s allegations
disparaging the union restrains and coerces employees in the
exercise of their Section 7 rights. Cf. Naomi Knitting Plant,
328 NLRB 1279 (1999); Williamhouse of California, 317
NLRB 699 (1995). Therefore, I find that by Lee’s statement,
the Respondent has violated Section 8(a)(1) of the Act.
Paragraph 9(d) of the second complaint: As I have previ-
ously found, Lee informed the employees assembled at the two
meetings that they could secure their previous wages and bene-
fits if they would simply “renounce” the Union. In connection
with those statements, he repeated a number of times that he
did not want the Union, and that 5 or 10 years would pass and
he would still not want the Union. Campos and Lopez testified
that he made those statements at the September 7 meeting.
Employees Salazar and Campos reported similar statements
being made by Lee at the meeting on September 18, along with
hand and arm gestures signifying “no more,” as he said that he
did not want the Union.
While Section 8(c) of the Act gives the Respondent’s man-
agers the right to express their opinion that they do want the
Union in the facility, Lee crosses the line into restraint and
coercion when he links not wanting the Union with a promise
to return the wages and benefits formerly enjoyed by the em-
ployees if they will “renounce” the Union. Such combined
statements in the context of these meetings were designed to
demonstrate to the assembled employees the futility of their
continuing support for the Union. This conduct violates Sec-
tion 8(a)(1) of the Act. Goya Foods, 347 NLRB 1118 (2006);
Basic Metal & Salvage Co., 322 NLRB 462, 463 (1996).
Paragraph 9(e) of the second complaint: After reviewing the
conduct and actions of the Respondent’s managers before, dur-
ing, and after the negotiations on a new collective-bargaining
agreement, I agree with the General Counsel’s contention that
Lee called the meetings of September 7 and 18 with the inten-
tion of soliciting employee grievances and making promises to
remedy those grievances in an effort to undermine support for
the Union. The Employer’s entire course of conduct seemed
designed to achieve such a purpose. However, even for this
Respondent, the actions of Lee at the two employee meetings
seem rather transparent and brazen.
Lee began the meeting of September 7 by specifically saying
that he was there to answer the employees’ questions, and then
asking for questions. While the two meetings were filled with
statements by Lee promising to resolve various problems, I will
only mention the most obvious. After hearing complaints about
the elimination of the employees’ medical insurance, Lee prom-
ised to send letters to the Funds to accurately reflect the hours
worked by employees, and to pay $125 per month to any em-
ployee privately purchasing insurance and providing proof of
such. Upon receiving a complaint about housekeepers earning
two different hourly wages, Lee promised to discuss the issue
with his lawyer, and then at the second meeting informed the
employees that they would now all be receiving the higher
wage rate of $8.05 per hour. When questioned at the first meet-
ing by an employee who had not received her vacation pay
under the terms of the expired contract, Lee agreed to pay her,
even if the money came out of his personal account. As noted
above in detail, Lee made it clear before the end of the meeting
of September 7 that without the Union he would make things
right by restoring the wages, vacations, and insurance benefits
previously provided.
Continuing with his design to demonstrate to the employees
how reasonable he could be if only the employees would aban-
don the Union, Lee started the second meeting on September 18
by informing the employees that he had spoken to his lawyer
regarding their concerns, and he had those answers. Both em-
ployees Campos and Lopez testified credibly that Lee offered
to return their former benefits including wages, insurance, and
holidays, and to pay them a raise every 3 months, as long as
they would “renounce” their support for the Union. As men-
tioned, he also informed them that effective immediately they
would all be receiving the higher housekeeper pay rate.
Board law is clear and of long standing that an employer that
solicits employee complaints, and promises to remedy them in
return for the employees’ abandonment of their union is in
violation of the Act. Jewish Home for the Elderly of Fairfield
County, 343 NLRB 1069, 1090 (2004); County Window Clean-
ing Co., 328 NLRB 190, 196 (1999); Orbit Lightspeed Courier
Systems, Inc., 323 NLRB 380, 390 (1997); Crest Ambulance,
320 NLRB 800, 801 (1996). I believe this is what the Respon-
dent, through its president, Lee, was doing on September 7 and
18, and, therefore, I find that by these actions the Respondent
has violated Section 8(a)(1) of the Act.
Paragraph 9(f) of the second complaint: Concomitant with
the last finding, I am of the view that Lee’s comments that he
would pay back money lost by the employees if they would
“renounce” the Union was a violation of the Act. As noted
earlier, Lee indicated through several different statements that
if the employees would “renounce” the Union he would restore
their previous wages and benefits. Employee Lester Salazar
credibly testified that as the first meeting was ending, an em-
ployee identified as Rita asked if there was no union at the
Hotel, would he return the monies that had been taken away
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD340
from the employees since February 1. By this question, she
was obviously referring to the reduction in wages unilaterally
implemented by the Employer pursuant to its so called last,
best, and final offer. Lee was unambiguous, telling Rita that he
would pay the money back, if necessary, by using his own
funds. As 8 months had passed since the Respondent had sig-
nificantly reduced employee wages on February 1, I will as-
sume the amount of “back wages” would have been very sub-
stantial.
Thus, by specifically promising employees to pay them a
sum of money in the form of back pay in return for their aban-
donment of the Union, the Respondent was restraining and
coercing employees in the exercise of their Section 7 rights. I
find such conduct to constitute a violation of Section 8(a)(1) of
the Act. Jewish Home for the Elderly of Fairfield County, su-
pra; Orbit Lightspeed Courier System, supra; Crest Ambulance,
supra.
Paragraph 9(g) of the second complaint: Similar to that alle-
gation immediately above is the contention that Lee promised
to reimburse employees $125 per month for health insurance
costs, so long as they could produce a receipt. These were
desperate employees, without the health insurance that they had
enjoyed under the terms of the expired contract. Lee under-
stood their desperation, having been apprised of it by the em-
ployees themselves. In his testimony he admitted what the
employees’ had been testifying to, namely his offer to reim-
burse them for purchasing insurance. Of course, the quid pro
quo for Lee’s generosity was the employees having to “re-
nounce” the Union.
This statement by Lee is simply another in a long line of
unlawful promises of benefit designed to restrain and coerce the
employees in order to get them to abandon the Union. Gerig’s
Dump Trucking, 320 NLRB 1017, 1022 (1996); Pennsy Supply,
295 NLRB 324, 325 (1989). As such, it constitutes a violation
of Section 8(a)(1) of the Act; and I so find.
Paragraph 9(h) of the second complaint: In this paragraph,
the General Counsel alleges that Lee’s offer to provide various
benefits to the unit employees in return for their “renouncing”
the Union constituted a separate violation of the Act. As I have
already found, Lee made a series of promises to the housekeep-
ers on September 7 and 18 offering among other things: to re-
turn their former wages, vacations, and medical insurance; pay
them $11 per hour, with raises every 3 months, and give them
insurance and paid holidays. Lee essentially mentioned the
same benefits in slightly different form several times at both
meetings. While it is somewhat difficult to distinguish between
the various promises, repeated several times, it is clear that in
return for these improved wages and benefits, Lee was insisting
that the employees “renounced” the Union. To the extent that
this is a separate incident, Lee’s promises to the employees
contingent on their renouncing the Union constituted a viola-
tion of Section 8(a)(1) of the Act; and I so find. Sprain Brook
Manor Nursing Home, 351 NLRB 1190 (2007); Crest Ambu-
lance, 320 NLRB 800 (1996); Basic Metal & Salvage, 322
NLRB 462 (1996).
Paragraph 9(i) of the second complaint: The General Coun-
sel contends that Lee threatened the assembled employees at
the September 7, 2007 meeting with adverse consequences
because of their support for the Union, specifically that he
would turn the hotel into apartments or condos. Employees
Griselda Campos and Noelia Elena Lopez both credibly testi-
fied that at the first employee meeting Lee said that if he could
not reach an agreement with the Union that he would turn the
Hotel into apartments or condos. The clear implication from
Lee’s statement was that if he continued to have problems with
the Union, he would cease operating the property as a hotel,
thereby eliminating the employees’ jobs. In my view, this was
not a subtle threat, but, rather, one all the employees could
understand, and designed to make them fearful that continued
support for the Union could result in being unemployed.
The threat made by Lee to convert the Hotel into apartments
or condos would certainly interfere with, restrain, and coerce
the employees in the exercise of their Section 7 rights. Volt
Technical, 176 NLRB 832, 835 (1969). Accordingly, I con-
clude that the Respondent, through Lee, has violated Section
8(a)(1) of the Act.
Paragraph 9(j) of the second complaint: It is alleged that
Lee’s act of instructing the employees to submit a letter to the
Union renouncing their union membership is a separate viola-
tion of the Act. Once again, employees Campos and Lopez
testified that at the September 7, 2007 meeting Lee promised
the assembled employees increased wages and benefits, spe-
cifically in return for individuals preparing letters to the Union,
renouncing the Union and withdrawing from it. There could
hardly be a more obvious act interfering with the Section 7
rights of the bargaining unit employees than for Lee to have
directed them to abandon the Union and to so notify the Union
in writing. Marchese Metal, 270 NLRB 293, 298 (1984);
Country Window Cleaning, 328 NLRB 190 (1999); Crest Am-
bulance, 320 NLRB 800 (1996). Accordingly, I find that by
this action the Respondent has violated Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent, Majestic Towers, Inc. d/b/a Wilshire
Plaza Hotel, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, UNITE HERE Local 11, UNITE HERE! In-
ternational Union, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has
violated Section 8(a)(5) and (1) of the Act:
(a) Failing to deduct monthly union dues and to remit those
dues, along with related union dues information, to the Union,
as provided for in the agreement between the Employer and the
Union.
(b) Failing to make the required contributions to the Health
and Welfare and Retirement Funds, along with related contribu-
tion reports, as provided for in the agreement between the Em-
ployer and the Union.
(c) Failing to process a grievance filed under the terms of the
agreement between the Employer and the Union by refusing to
furnish the Union with requested written information necessary
to support the grievance.
(d) Denying the Union’s agents access to the Hotel as pro-
vided for in the agreement between the Employer and the Un-
WILSHIRE PLAZA HOTEL 341
ion by threatening to call the police, by summoning the police,
and by orally revoking access.
(e) Failing to furnish the Union with requested information
necessary for the Union’s performance of its collective-
bargaining duties including: detailed calculations of the cost of
the Employer’s economic proposals made during negotiations,
information concerning the lawsuit instituted by Radisson Ho-
tels International against the Employer, information concerning
the differences in the wage rates between the housekeeping and
cook classifications; and a list of all unit employees, their
names, job titles, and wage rates.
(f) Failing to pay the unit employees their vacation pay as
provided for in the agreement between the Employer and the
Union.
(g) Declaring that the parties were at an impasse in their col-
lective-bargaining negotiations.
(h) Unilaterally abrogating the terms and conditions of em-
ployment under which its bargaining unit employees had been
employed pursuant to the terms of the agreement between the
Employer and the Union.
(i) Unilaterally implementing, without the parties having
reached impasse, the proposals contained in the Employer’s so
called last, best, and final offer.
(j) Unilaterally eliminating the daytime shift in the lobby bar.
(k) Unilaterally implementing an employee locker inspection
policy.
(l) Unilaterally implementing a kitchen employees’
lunchbreak policy.
(m) Dealing directly with bargaining unit employees and,
thereby, bypassing the Union, as the collective-bargaining rep-
resentative of those employees.
4. By the following acts and conduct the Respondent has
violated Section 8(a)(3) and (1) of the Act:
(a) Informing, orally and in writing, employees Griselda
Campos, Susana Serrano, Ofelia Calderon, and Maria Carrillo
that they were selected for random locker inspections and by
subsequently performing the inspections.
(b) Informing, orally and in writing, kitchen employees of a
change in their lunchbreak policy, and by changing the policy.
5. By the following acts and conduct the Respondent has
violated Section 8(a)(1) of the Act:
(a) Engaging in surveillance and/or creating the impression
of surveillance of bargaining unit employees by following and
observing union representatives as they walked through the
Hotel in an effort to contact members of the bargaining unit.
(b) Engaging in surveillance and/or creating the impression
of surveillance of bargaining unit employees by following and
observing union representatives as they proceeded to meet with
bargaining unit members to discuss union business.
(c) Engaging in surveillance and/or creating the impression
of surveillance of bargaining unit employees by taking pictures
of union representatives as they meet with bargaining unit
members to discuss union business.
(d) Engaging in surveillance and/or creating the impression
of surveillance of bargaining unit employees by observing and
or taking pictures of them as they proceeded to meet with union
representatives to discuss union business.
(e) Engaging in surveillance and/or creating the impression
of surveillance of bargaining unit employees by observing and
or taking pictures of them as they participated in a collective
demonstration outside the front of the Hotel.
(f) Interrogating employees regarding their union activity.
(g) Threatening employees with termination for going on
strike.
(h) Making a statement of futility regarding union represen-
tation.
(i) Informing employees that their wages and/or benefits
were reduced because of the Union.
(j) Prohibiting employees from speaking with each other re-
garding their terms and conditions of employment.
(k) Offering to give bargaining unit employees money so that
they would investigate the Union.
(l) Soliciting employee complaints and grievances, and
promising employees increased benefits and improved terms
and conditions of employment if they were to renounce the
Union.
(m) Threatening employees with adverse consequences be-
cause of their union activity.
(n) Telling employees to prepare a letter to the Union re-
nouncing their support of the Union.
(o) Threatening kitchen employees with discipline for refus-
ing to sign a memo regarding an unlawfully instituted
lunchbreak policy.
6. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. I shall order the Respon-
dent to bargain with the Union as the exclusive collective-
bargaining representative of the bargaining unit and, if re-
quested by the Union, to rescind any unilateral changes in
wages, benefits, and conditions of employment implemented on
February 1, 2007, and thereafter. I shall order the Respondent
to make whole the unit employees and former unit employees
for any loss of wages or other benefits they suffered as a result
of the Respondent’s unilateral implementation of new terms
and conditions of employment in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).49

49 In her posthearing brief, counsel for the General Counsel argues
that the interest on any monetary award should be compounded on a
quarterly basis. Counsel goes on at considerable length to explain why
it is the General Counsel’s view that computing compound interest,
rather than simple interest, is the only manner by which to make dis-
criminatees fully whole and carry out the purposes of the Act. Of
course, replacing the current practice of awarding only simple interest
on backpay and other monetary awards with compound interest will
require a decision by the Board. One way of placing this issue before
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD342

the Board is to have it raised and fully litigated at the administrative
law judge level. However, that has not happened in this case.
The General Counsel did not raise this issue in either of the two
complaints, nor did the General Counsel advise the Respondent at the
hearing that it was going to seek such a remedy. As a result, the Re-
spondent would have been unaware that the General Counsel was seek-
ing a change in the current practice of awarding only simple interest.
Being unaware, counsel for the Respondent did not discuss this issue or
even take a position in his post-hearing brief. Therefore, this matter has
not been fully litigated, and for the undersigned to now award com-
pound interest would constitute a denial of due process to the Respon-
dent.
Accordingly, I decline to award compound interest on any backpay
and other monetary awards pursuant to this decision.
Further, because of the Respondent’s failure to make re-
quired payments into the Funds, unit employees and former
unit employees may have incurred out of pocket medical bills,
which they would not have otherwise incurred. Therefore, I
shall order the Respondent to reimburse and make whole unit
employees and former unit employees for any such expenses.
Finally, the Respondent shall be required to post a notice in
English and Spanish that assures its employees that it will re-
spect their rights under the Act. Because of the pervasive na-
ture of the Respondent’s unfair labor practices, I also grant the
General Counsel’s request to have a management representative
read the notice in the presence of employees on work time, or
be present while a Board agent reads the notice in English, and
simultaneously be translated into Spanish.
[Recommended Order omitted from publication.]