Worldmark By Wyndham

National Labor Relations Board - Administrative Judge Opinions

Aug 18, 2010

28-CA-022680 (N.L.R.B. Aug. 18, 2010)

JD(SF)–34–10
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
WYNDHAM RESORT DEVELOPMENT
CORPORATION d/b/a WORLDMARK
BY WYNDHAM
and Case 28-CA-22680
GERALD FOLEY, an Individual
Joel C. Schochet, Esq., of Las Vegas, Nevada,
appearing on behalf of the General Counsel
David Keene, Esq., for Littler Mendelson, LLP, of
Las Vegas, Nevada, appearing on behalf of
Respondent
DECISION
BURTON LITVACK: ADMINISTRATIVE LAW JUDGE
Statement of the Case
Gerald Foley, an individual, herein called Foley, filed the original and first amended
unfair labor practice charges in the above-captioned matter on September 11 and October 30,
2009,1 respectively. After an investigation, on October 30, the Regional Director for Region 28
of the National Labor Relations Board, herein called the Board, issued a complaint in the above-
captioned matter, alleging that Wyndham Resort Development Corporation d/b/a Worldmark By
Wyndham, herein called Respondent, engaged in acts and conduct violative of Section 8(a)(1)
of the National Labor Relations Act, herein called the Act. Respondent timely filed an answer,
essentially denying the commission of any of the alleged unfair labor practices. Subsequently, a
trial on the merits of the allegations of the complaint was conducted before the above-named
administrative law judge on January 12, 2010 in Las Vegas, Nevada. During the trial, the
General Counsel and Respondent were each afforded the opportunity to call witnesses, to
cross-examine witnesses called by the other party, to offer into the record all relevant
documentary evidence, to argue their legal positions orally, and to file post-hearing briefs. Said
documents were filed by counsel for the General Counsel and by counsel for Respondent and
each has been carefully considered. Accordingly, based upon the entire record herein,

1 Unless otherwise stated, all events herein occurred during 2009.
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including the post-hearing briefs and my observation of the demeanor, while testifying, of each
witness, I make the following:
Findings of Fact
Jurisdiction
At all times material herein, Respondent, a State of Oregon corporation, with an office
and place of business located in Las Vegas, Nevada, has been engaged in the business of
selling time-shares and time-share credits. During the 12-month period ending September 11,
2009, which period is representative, in conducting its business operations, Respondent derived
gross revenues in excess of $500,000 and sold time-shares valued in excess of $50,000 at
locations outside the State of Nevada. At all times material herein, Respondent has been an
employer within the meaning of Section 2(2), (6), and (7) of the Act.
Issues
The complaint alleges and the General Counsel contends that Respondent violated
Section 8(a)(1) of the Act by issuing unwarranted and undeserved written warnings to Foley on
May 14 and September 4, by suspending Foley on September 2, and by discharging him on
September 11. The complaint further alleges and the General Counsel further contends that, on
May 2, Respondent violated Section 8(a)(1) of the Act by threatening its employees by inviting
them to quit because they engaged in concerted activities, by orally promulgating an overly
broad and discriminatory rule prohibiting its employees from engaging in concerted activities at
its facility, by threatening its employees with unspecified reprisals because they engaged in
concerted activities, and by threatening its employees with discharge because they engaged in
concerted activities. Respondent admits giving Foley the above described warning notices,
suspending Foley, and discharging him but denies that said acts were motivated by any
concerted activities in which Foley may have engaged.
The Alleged Unfair Labor Practices
The Facts
The record establishes that Worldmark is a time-share corporation comprised of the
independent owners of a separate corporate entity known as Worldmark, the Club, which
operates approximately 70 resorts world-wide; that Respondent is the marketer of time-share
credits and the developer for Worldmark, the Club; that, in the Las Vegas area, Respondent
maintains four “selling sites,” including two operated by a sister corporation, Fairfield; and that at
its facility, located at 8601 South Las Vegas Blvd., Respondent engages in, what it terms, in-
house sales-- sales of time-share credits to existing owners. The record further establishes
that, rather than operating as a traditional time-share company, in which individuals purchase
and own the rights to a specified week or weeks at a particular resort location (week 26 in
Hawaii), the so-called “independent owners” of Worldmark, the Club, purchase and own a
specified number of time-share “credits,” which they may spend when, where, and how they
may desire at the Club’s resort locations. For example, an owner may stay one, three, ten, or
any number of days at a particular resort location depending upon the size of the unit with the
required number of credits solely dependent upon the size, not the location, of the unit. Rodney
C. Hill is employed by Respondent as its site vice-president of in-house sales and works at the
8601 South Las Vegas Blvd. facility. Hill, who is responsible for recruiting, hiring, training,
educating, and directing the work of Respondent’s in-house sales representatives, reports to
Derek Milholland, Respondent’s regional vice-president of sales, who maintains an office at the
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same location. Reporting to Hill are two sales managers, who, nominally, are responsible for
supervising the in-house sales representatives,2 whose job is to sell Respondent’s time-share
products to existing owners.3 Regarding the supervision of the sales representatives, according
to Hill, “. . . because it is important to me, I have more communication with [the sales
representatives] and more responsibility indirectly reporting with sales people than I do with my
sales managers.” In this regard, “I set the direction, I set the tempo, I set what is and isn’t
allowed on the floor. [The sales managers’] job is to help and assist the sales people with the
owners if they have questions . . . while selling.”4
Respondent’s marketing department is responsible for promoting its products to existing
owners and for booking sales appointments for them, and, when existing owners arrive for their
appointments, in-house sales representatives are assigned to work with them during what are
referred to as “tours.”5 The sales representatives sell two different time-share products to
existing owners-- new time share credits at the current market price or existing time-share
credits through, what is termed, the owner transfer project, herein called OTP. Pursuant to the
latter program, which Respondent implemented in February, an existing owner, who paid for his
or her time-share credits by securing a bank loan and is facing foreclosure on said loan, may
sell said credits to another existing owner, and the latter is permitted to purchase the credits at
their original price rather than at the current market rate and without paying any processing
fees. The record reveals that, as compensation for selling Respondent’s products, the in-house
sales representatives are paid on a commission basis and receive bonuses dependent upon the
amount of sales. For sales of new time-share credits during the first nine months of 2009,
Respondent paid $100 to the above employees for every thousand credits sold, with the amount
of the down payment also being a determinant.6 During the first nine months of 2009, said
commission rate was never changed by Respondent, and the payment of commissions on the
sale of new credits was never a problem or issue. However, for sales of credits under the OTP
program, Respondent changed the commission paid to its sales representatives twice during
the above time period, and the payment of said commissions became a consistent source of
irritation and concern for the sales representatives. The Charging Party, Gerald Foley, an in-
house sales representative for Respondent for 27 months until his discharge on September 11,7

2 During the time period February through September 2009, Respondent employed between
12 and 14 sales representatives.
3 The in-house sales representatives work on the second floor of the 8601 South Las Vegas
Blvd. facility on which the sales floor is located. This is a “big open area” with round tables, at
which the sales representatives meet with current owners, located along the sides.
4 Hill testified that “most of the time,” the sales people come to him with day-to-day
problems.
Hill abhorred what he perceived as expressions of “negativity” by Respondent’s in-house
sales representatives at sales meetings or on the sales floor, which included their complaints
about corporate decisions or angry or annoyed comments regarding problems with their
commission or bonus payments or similar work-related issues. Specifically, according to Hill,
negativity “. . . really defeats what I am trying to do,” which is to have Respondent’s sales
representatives work with and convey a “positive upbeat attitude.”
5 Foley testified that a “tour” was “. . . the customer. We would go down and pick them up in
the lobby . . . and we would take them upstairs and get them coffee and doughnuts and we
would sit there and start talking.”
6 At one point, Respondent had an incentive program, paying higher commissions for larger
credit packages.
7 Foley had extensive prior experience in time-share sales.
While describing Foley as “a very, very good salesman,” Hill, who assumed his current
Continued
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testified that the sales representatives were never certain as to how they were being paid for
these sales (“That is what caused all of the questions about OTP commissions”) and that the
administrative procedure, implemented by Respondent for the processing such sales, resulted
in constant delays in the payment of their commissions. In this regard, all legal work, including
the contract signing, for ordinary credits sales is performed on site, and commission payments
are quickly made to the sales representatives. In contrast, for OTP sales, the customer merely
signs a document, stating that the purchaser agrees to relieve the existing owner of his existing
loan commitment; thereafter, all paperwork is handled by Respondent’s corporate legal
department in Orlando, Florida. According to Foley, Respondent delayed commission
payments to the sales representatives until the completion of the signing process and, during
this time, purchasers often changed their minds and withdrew from their commitments, resulting
in a loss of the sale and the consequent commission payment.
The record reveals that the payment of commissions and bonus payments due to them
on OTP sales was a matter of salient and urgent concern amongst Respondent’s in-house sales
representatives. Foley testified that he and his fellow sales representatives discussed their
concerns “religiously” on a daily basis in the break area and at their desks in the sales room
when no clients were present. James Robertson, a former in-house sales representative,
agreed, stating that “everyone discussed commissions” and related payment problems on the
sales floor during “dead time” on an “almost daily basis.” Likewise, Philip Bridges, who worked
as an in-house sales representative for Respondent for a year until July, testified that, when the
OTP program was unveiled, Hill informed the sales representatives that they would be
compensated as if they had sold regular credits. However, as payment problems developed
and persisted, Bridges believed “. . . we were not being compensated as [the OTP] was initially
disclosed . . .” and, therefore, began “. . . discuss[ing] the structure and the timeliness of how
and when we were being paid” with other sales representatives on the sales floor “in between
tour times.” He added that “I can’t think of a day where I didn’t have that discussion.” The
record further reveals that Rodney Hill was well aware of these discussions and consistently
attempted to discourage them. Thus, according to Foley, overhearing such conversations, Hill
would approach, “routinely” tap the shoulder of a sales representative, ask “. . . `what is your
question’ . . . ,” and say “. . . `this isn’t the time or place to be talking about this, guys. You
know, we have to keep our heads . . . let’s face it, we can’t do anything about this here. . . . it is
a new day. Let’s just go out there and get it.’” According to Robertson, Hill overheard such
conversations and “frowned upon” them. “I was censured on two occasions about bringing
negativity into the office, and he was quite clear that I should be spending more time and effort
on learning how to sell rather than discussing stuff he felt was unnecessary.” Hill added that
Robertson should do “something productive” rather than “. . . `dwelling on something you have
no control over.’” Hill conceded that there was much “confusion” over the OTP program as “it
_________________________
position in February, had an obvious personality conflict with him. Lamenting that “our greatest
strength can be our greatest weakness,” Hill noted that Foley’s “passion” for selling manifested
itself in expressions of “bitterness, anger, frustration” and being “the only one who was really
outspoken . . . .” Continuing, Hill noted that “the only issues I ever had with Mr. Foley [were]
that he had the tendency and the ability to create negativity within the sales meetings and/or the
sales floor and one on one with sales representatives,” and “. . . he . . . had a tendency to
complain and argue with the decisions made by authority to the point that it was very disruptive”
during sales meetings and on the sales floor. Asked what Foley’s concerns were, Hill said, “Oh,
it could be anything. It could be policies, it could be the rotation of the board . . . .” He added
that Foley “. . . had a tendency to verbally challenge openly . . . rather than in private and in
person.”
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was a brand new program . . . so the things that they sent down, I didn’t fully understand . . . .”
He added that the sales representatives did raise issues with regard to the paying of bonuses
and commissions “. . . because it was different, nobody really understood it. . . . .” Specifically,
as to Foley, Hill conceded that the former would speak to “anyone who would listen . . . . Just
different folks . . .” and that he was “outspoken . . . where everyone could hear.” Hill added that
the subjects of Foley’s conversations “. . . could be anything. It could be policies; it could be the
rotation of the wheel”-- “who goes out first in priority of the sales.”
Rodney Hill conducts a 30 minute sales meeting, starting promptly at 8:00 and ending at
8:30 every morning, except Sunday, for Respondent’s sales representatives, and the purpose of
said meeting “. . . is primarily to congratulate and celebrate the previous day’s sales,
acknowledge the team. . . . The second portion of it is . . . informative things that needed to get
out to the sales team . . . and, also, it was to prepare and train for the day’s presentation.” Hill
testified that said daily meetings are a “very important part of the day” inasmuch as they set the
“tone” for the day. As such, he strived to make them a “positive” experience and not a
“negative” one and would always end them with an “upbeat” message. Hill conducted one such
sales meeting on May 2, and, on this occasion, he began by stating that, apparently, there was
a lot of controversy over the sales representatives’ compensation under the OTP program and
that he would like to address the issue and answer some questions as everyone seemed to be
“sideways” about a “few things.” Thereupon, Foley testified, sales representatives began asking
questions. Philip Bridges asked about commissions, which were owed to him but which
Respondent “couldn’t track.” Hill responded that he would have to “check on that.” Jennifer
Griffin next asked about the effect of the delayed paperwork on their bonus payments. Hill said
he did not know. Then Foley raised his hand and asked why, if Fairfield, a sister corporate
entity to Respondent, could implement an identical OTP program and process the paperwork on
site without any delay, could Respondent not operate its OTP program in a similar manner? Hill
had no response; “he didn’t have an answer.” Several more sales representatives asked
questions, and, according to Foley, “I possibly asked a second [question] . . . . it just seemed
like all of a sudden it [got] out of control a little . . . . He didn’t have the answers. People were
raising their hands. Some were talking over others . . . .” Foley recalled one sales
representative, Charles Feathers, attempting to stop the questioning; “he was like trying to
drown everybody out to shut them up . . . . I just leaned over and I tapped his shoulder, and I
said `no, no, no, Chuck. Hold on. Let them finish. Let them finish.’” Suddenly, Foley further
testified, Hill “blew a gasket.” He noticed Hill developing red blotches on his neck and his
cheeks, “. . . and he turned pretty red and he says, `you know, damn it, you guys . . . you are
pissing me off. If you want to work here, I suggest . . . . we don’t talk about this now. We are
just going to end this. It is done. If you want to talk to me, you can talk to me in my office about
it.’” Foley recalled that Hill’s comment ended the meeting and, rather than following his usual
practice of staying and speaking to any sales representatives who waited to speak to him, Hill
went straight to his office.
Foley’s testimony as to the tenor of the foregoing sales meeting, including Hill’s outburst
at the end, was generally corroborated by all other witnesses, including Hill; the only significant
area of controversy concerns Foley’s behavior during the meeting. Thus, Philip Bridges testified
that Hill began the meeting by distributing a new commission structure. Then, employees
began directing questions to Hill, with Griffin, Foley, and him raising different issues. In
particular, Bridges recalled Foley asking why it was taking so long for sales people to receive
commission checks and noting that the Fairfield sales people were not required to wait as long
as Respondent’s employees for commission payments. He further testified that “a couple of
other people” might have had comments about compensation and that, at the end of the
meeting, “. . . Hill noticeably got very red-faced and aggravated” and said “. . . `this is a bunch of
bullshit and I am tired of it.’ He said, `you have pissed me off, I’m tired of hearing about this. . . .
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If I ever hear anybody bring this up again, I will fire you.’” Moments later after composing
himself, Hill continued, saying he was sorry for what he had just said “. . . `but you all really
pised me off.’” At this point, according to Bridges, Derek Milholland walked into the room, and
not a word was uttered. “It was extremely quiet. You could hear a pin dropping.” James
Robertson testified that the session began in the manner of a regular sales meeting; however,
as there had been significant tension in the facility regarding commissions, “the whole sales
meeting’s topic was basically on commissions.” Hill began by distributing a company memo on
the subject and began taking questions. According to Robertson,8 “I think it was really just
[Feathers] and [Foley] who were asking the questions.” He added that sales meetings were
generally “fairly upbeat” with commissions a “forbidden” topic and that, with the issue now
raised, “. . . it was an opportunity for us to start [asking] questions, and Jerry started [asking
questions that] everybody had been talking about previously on the sales floor . . . .” He “. . .
said what everybody would have loved to have said.” Feathers “. . . didn’t really ask specific
questions. He . . . mainly stepped in like a referee would step in [during] a match . . . he started
talking but it wasn’t really asking questions.” Robertson described Foley’s manner during the
meeting as “direct. . . . he wasn’t shouting but he was being . . . . a bit faster than normal
speech” and recalled him asking about OTP paperwork going to Florida when Fairfield handled
OTP at its location and about other procedural policies.9 Robertson recalled that Foley “. . .
asked a few questions when he felt he was just getting misdirected by [Hill].” Finally, after Foley
had been asking his questions for a while, Hill “. . . completely lost it, his face went purple, he
started shouting and had a meltdown in front of the whole office. He said `okay, we are not
going to have this here. We are not going to discuss this here. Just move on, if any of you guys
have any questions from now on about commissions . . . it will now be done in my office in
private, and I don’t want to hear another peep-- I don’t want to hear anything at all. If you want
to work here, this is what you do.’” The room became “silent” at that point.10
Charles Feathers, a sales representative who testified on behalf of Respondent, recalled
that Hill brought up compensation,11 “. . . and it had something to do with our OTP program,
which is basically our short sale of an ownership, and how we are going to be compensated on
that. It generated a lot of questions amongst the [sales representatives], and it got kind of
heated, a lot of emotion . . . and before [Hill] could even finish asking or answering what
someone would say, someone else would bring something else up. It was almost like . . .
people throwing or shooting at him . . . .” In the midst of it, Hill became “excited” and said “. . .
that’s enough. That’s it. . . . it’s getting real negative. We are not going to continue to discuss it

8 During cross-examination, Robertson stated that Respondent ostensibly fired him as a
result of “his numbers.” However, he believes the actual reason was because “. . . we had a
sales meeting [in mid-September] where Rod Hill made an outrageous statement about lynching
the only African-American employee we had in our office, and I went immediately up to the
employee and apologized to him for having to sit through that.” Then, according to Robertson,
he went to his supervisor and asked her to go to human resources because of what Hill said
and told her “. . . if she didn’t go to HR, I was going to go to HR.” Robertson believed his
supervisor reported his threat to Hill, “. . . and I was fired for my numbers within three weeks.”
Rodney Hill failed to specifically deny the incident, enigmatically testifying “honestly, I don’t
know if I said that or not. . . . I am not [prejudiced].”
9 Asked if Foley was voicing the frustrations of the entire sales force, Robertson replied,
“absolutely.”
10 Robertson believed Foley’s questions caused Hill’s outburst as “. . . if Jerry hadn’t said
those things, he had the blow-up basically at Jerry, and then threatening us all.”
11 Feathers contradicted Robertson, denying that Hill tried to keep compensation out of
sales meetings-- “Oh, never, no. We talk about compensation all of the time.”
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in this manner. If you have something negative to say, then come see me in my office.” He
added that Hill did use the term “bullshit” at some point. Asked if he was one of the questioners,
Feathers replied, “I asked him a couple of questions. . . . I think several people asked a question
. . . ,” including Foley. . . . We played off each other a lot. I mean, he could get me going. I
could get him going sometimes.” He described Foley as being “very involved” in what occurred
during the meeting and recalled that Foley’s questions seemed to be “. . . personal to him in
nature. They would deal specifically with his situation, and . . . [Hill] would always say `I want to
do it in the office. I don’t want to do it in a group forum.’”
Rodney Hill testified that the May 2 sales meeting began with him “celebrating the
successes of the previous day” and that he then distributed a memo on a new compensation
program. As “. . . there was some ambiguity about it . . . some of the people were asking
questions.” Saying he did not know the answers to some of the questions, Hill told the sales
representatives that he “would discuss it at a later time.” However, “Mr. Foley wouldn’t let it go.
He continued to incite people. He turned to . . . Feathers and tried to get him stirred up about it,
and . . . other representatives told him to be quiet . . . .” Hill further testified that the other sales
representatives stopped questioning him when he had no answers but that Foley “. . . continued
on with the badgering . . . . continuing to try to incite . . . .” He described Foley’s negativity as
not so much his questions; rather, “it was statements that he was making . . . about the
compensation plan.”12 Having had it “up to my eyeballs with [Foley’s] negativity” and “. . .
obviously getting frustrated by the continued pecking and hammering that he was doing . . . ,”
Hill shouted “. . . `You know, that’s enough. This is bullshit,’ and I said `I will not have this in my
sales meeting,” and I was very, very upset over it.’” Hill then conceded stating “. . . that my dad
always told me that if you don’t like it somewhere, rather than whining and complaining about it,
go find another job.”
The next day, Foley began a vacation during which he visited the Fairfield office and
decided to seek a transfer to that entity. At some point near the end of his time off from work,
Foley received a voicemail message from Hill that he wanted to speak to the Charging Party
before the latter returned to work. Foley immediately returned Hill’s call, and the latter informed
Foley that Derek Milholland wanted to talk to him about something that was said at the May 2
meeting. Not scheduled to return to work until May 14 but disturbed and “distressed” about
having to speak to Milholland, Foley visited Respondent’s facility a day or two prior to the end of
his vacation. He approached Hill in a hallway and asked to speak to him in his office. Once
seated in Hill’s office, Foley began by apologizing for being “a little forward” in his questions
during the May 2 sales meeting but added that Hill himself had solicited the questions. Hill
replied that he did not think it was necessary for Milholland to speak to Foley as the former
certainly understood that, in sales, you can “sometimes” have a “bad minute” and get over it.
Foley responded that he needed his vacation time in order to become more “focused” but that
Hill should understand it was hard for him not to ask questions when issues affected him
financially and he might approach him again with questions. Then, Foley asked if Hill would be
opposed to him seeking a transfer to Fairfield and said that he visited the Fairfield office during
his vacation in order to investigate the possibility of transferring. Hill replied that he would not
be opposed to Foley transferring but urged him to reconsider. Foley replied that it seemed as
though Hill did not want him to leave, and Hill replied that he thought Foley was a “dynamic”
sales person and wanted him to reconsider.

12 Negativity, as engaged in by Foley, “. . . defeats what I am trying to do. I am trying to send
my team out in a positive upbeat attitude to start the day.”
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On May 14, Foley returned to work, but, prior to doing so, he went to Respondent’s
human resources office, requested, and received a form for transferring to the Fairfield entity.
Upon entering Respondent’s facility, he handed the transfer form to Hill, who said they would
speak later. That afternoon at approximately 1:00pm, Foley went to Hill’s office, and the latter
said they should speak to Derek Milholland. In the latter’s office, Milholland asked Foley how he
was feeling and whether everything was alright. Foley replied “excellent,” and Milholland said
he was concerned because, prior to his vacation, Foley had blown up a sales meeting and now
he wanted to transfer away from Respondent. Milholland added that he had a “problem” with
what Foley had done as he “. . . wasn’t supposed to go and talk to [Fairfield] without asking
permission.” The Charging Party replied that he did not know he required permission to speak
to a sister corporation and that, in fact, he had been “approached” to do so. Thereupon,
Milholland handed Foley a document entitled “notice of corrective action,” a “documented”
verbal warning notice apparently drafted by Rodney Hill. Said warning notice concerned the
May 2 sales meeting and stated, in the first paragraph, that “on several occasions Gerald has
been verbally addressed on his open negativity in sales meetings as well as on the sales floor.
Gerald has been told that . . . spreading negativity to the sales team cannot be tolerated. . . .
Gerald has a struggle containing his negativity . . . .” In the second paragraph, which directly
concerns the sales meeting, after stating he had no answers to several of the questions, Hill13
wrote, “Gerald continued to object and voice his frustrations to the rest of the group. This
resulted in agitating others to the point where another sales representative asked him to leave it
alone.” Finally, under “required improvement,” the notice reads,” Gerald must immediately stop
and avoid expressions of open negativity in sales meetings and on the sales floor with other
Sales Representatives . . . .” With regard to the first paragraph, Foley denied that Hill ever
raised his so-called “negativity” on several occasions, and, with regard to the second paragraph,
after Hill said he would take no more questions, “we stopped.” Further, Foley denied being
louder or more outspoken than any other sales representative that morning.
Prior to September 2, Respondent maintained a simple “resort casual” dress code for it
employees. According to Foley, “we didn’t have to be wearing suits and ties . . . but just . . .
nice dress slacks . . . presentable, professional looking . . . .” He added that many men wore
Tommy Bahama-style shirts, which were not tucked into pants. According to Foley, he had
been on vacation for a few days prior to September 2 and, upon returning to work that day, he
became aware that Respondent had implemented a new dress code for men.14 He arrived at
Respondent’s facility that morning at 7:30 and encountered Rodney Hill in the sales room. Two
other sales representatives, James Robertson and Charles Feathers, were seated at their
desks. Foley was wearing a Tommy Bahama shirt, not tucked into his pants; Hill noticed and
said “. . . we have a new rule, shirt tails have to be tucked in.” Foley asked whether this was
true as he had heard a rumor of such a change in dress policy. Hill said, yes. Apparently
dissatisfied by Hill’s response, Foley first asked whether the dress code change was now
corporate policy and, then, if a memo, regarding the policy change, had been posted. Hill
responded, asking “. . . `why does everything have to be in writing with you?’” Foley replied,
saying he asked because, in companies like Respondent, policy changes are announced in
memos. At this point, according to Foley, Feathers became “a little boisterous,” announcing that
he had not signed up for such “crap” and “. . . I don’t need the money . . . . This is not what I

13 Asked whether he had ever given a warning notice for expressing negativity to any other
employee, Hill averred “I couldn’t tell you.”
14 Foley stated that, while on vacation, he had heard a rumor of a new dress policy,
requiring shirts to be tucked into the pants.
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signed up for . . . .”15 Thereupon, obviously perturbed, Hill pointed at both sales representatives
and said “. . . `Go home. You guys can go home for today.’” Foley and Feathers each made a
comment, and, then, Hill asked Leila Darling, a sales manager, to conduct the morning sales
meeting and ordered Foley and Feathers to come to his office. Foley further testified that,
inside Hill’s office, the latter “. . . just went into some kind of third party story sermon about his
daughter not obeying the rules . . . and he was talking like being a parent or something, and we
just have to live by the rules . . . and that was really the end of our conversation and he let us go
back on the sales floor. . . . We both apologized and went back to our job.”16
James Robertson corroborated Foley, testifying that Respondent published a memo,
requiring male sales representatives to wear their shirts tucked inside their pants, and that some
men, who regularly wore Tommy Bahama-style shirts, were upset by the new work rule.17
According to Robertson, Foley returned from a vacation, and, upon being informed of the new
policy by Hill, Foley, who was wearing a Tommy Bahama shirt outside his pants, retorted,
asking if the new rule was in writing and did said policy apply to the office in which they were
working. Hill responded, “`why do you always ask . . . stuff like that. Why does it always have
to be in writing with you . . .’” At this point, Charles Feathers, who Robertson described as the
Tommy Bahama shirt king, interjected with some comments, saying “. . . I don’t need this crap.
I don’t have to be working here. My wife has got tons of money, I could retire right now. I don’t
have to be dealing with this at all . . . .” Hill then said to both men “. . . `you guys are out of here
right now.’”
With regard to the September 2 shirt incident, Rodney Hill testified that, “in the sales
meeting” that morning, he informed the sales representatives “. . . that Wyndham was asking
that we tuck in our shirts.” Asked if anyone reacted to his announcement, Hill stated “Oh, boy,
yes there were. . . . Mr. Feathers was upset by it and usually he is pretty docile. Mr. Foley was
extremely frustrated by the policy.” Specifically, Foley complained that this new work rule “. . . is
not what they signed. They have contracts with the company and that is not what they agreed
to.” Hill described Foley as “visibly angry” about the new policy and says he was able to
“squelch it without a huge . . . uproar in the meeting. We got back on track and then I dismissed
everybody for the day’s sales.”18 As the other sales representatives left the room but with some
remaining, Foley again began to “badger” Hill about the change. This, in turn, “incited” Feathers
to again complain. Finally, after listening to both,19 Hill told them to go home, saying “I will not
have this negativity on my sales floor.” However, Hill immediately reconsidered and asked
Foley and Feathers to accompany him to his office. There, according to Hill, he told both men
that he could not have such negativity on the sales floor and would not start the day like that.
Feathers then apologized for his conduct, and Hill told both to go to work and do “what you guys
are called to do.”

15 There is no record evidence that Foley and Feathers discussed jointly protesting the
newly implemented dress policy that morning. In this regard, Foley conceded that he did not
ask Feathers to join in the conversation-- “No, he chimed in on his own.”
16 During cross-examination, Foley stated that he apologized because “. . . if he feels . . .
that I was out of line . . . I didn’t want to make him feel like I was trying to be a hard nose . . . .”
Hill denied that Foley apologized to him for what had occurred.
17 There is no evidence that Foley was aware that other employees were upset by the new
dress rule.
18 Hill denied asking the sales manager to conduct the sales meeting that morning.
19 During cross-examination, Hill conceded that, during the incident, Foley and Feathers
were concerned about the same issue, the new shirt rule, and that both men spoke against it.
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Charles Feathers contradicted Hill and, in part, corroborated Foley, stating that the
incident “. . . was before the sales meeting ever started. . . . this was at a quarter until 8:00 in
the morning on the work room floor” with just one other sales representative present--
Robertson. Not recalling whether he or Foley said something first, Feathers testified he said he
didn’t know whether he wanted to work with Wyndham’s new dress guidelines-- “It is pretty
restrictive. You know, I might not want to tuck in my shirt; and then Jerry said something to [Hill]
and then . . . Rod kind of said something in retort, and then they kind of really got into it . . . .”
Foley mentioned a contract, saying Hill was required to announce policy changes in writing.20
Abruptly, Hill ended the dispute, stating that Foley and Feathers should clock out and go home.
Asked why Hill included him, Feathers said “. . . because I was party to what had transpired
here. I was . . . an instigator.”21 Moments later, Hill asked both sales representatives to come
to his office. There, Hill began “. . . this long explanation about his daughter,” who “. . . didn’t
want to follow the rules of the home anymore” after becoming 18 years old. Eventually,
according to Feathers, Hill told them just to go back to work, and they left the office.22 Feathers
added that Foley thanked him for standing up for him, and he replied that it had been a stupid
thing to do.
Foley worked that entire day but had just one sales tour23 with a husband and wife, who
were, of course, current owners of time share credits.24 He testified that he followed his normal
procedure, introducing himself to the couple and asking them to accompany him upstairs.
According to Foley, early, during the conversation, he had questions about the family’s financial
condition, and he asked the couple to detail their monthly expenses for him, the “purpose’ of
which was to learn if “something financially [was bothering] them.” From this, he learned “that
they were financially able to afford us. They were giving me all the buy signs.” Foley stated that
he was attempting to sell OTP credits to the couple, and “I told them how fortunate they were to
be able to be here because these prices are significantly lower than” the cost of new credits. He
added that the customers “. . . were great all the way to the very end. When we got down to the
money, they were receptive to the money part but when they came to decision making . . . they
decided . . . ‘maybe right now is not a good time.’” At this point, trying to save his sale, Foley
attempted to ascertain why, and the husband replied that he would probably be able to do a
deal in a month or two. Foley then explained that “. . . the price . . . I am showing is the best
that he has ever seen or probably will see . . . so if he is looking to do it in two months, it would
be advantageous to do it now . . . .” The husband and wife continued to say, no.25 Finally, after
Foley continued to push a sale, the husband said “. . . that our company always bothered him
about coming to these presentations.” Foley asked why this bothered him, and the man only
replied “. . . but if you guys want to keep calling me and giving me stuff . . . .” Becoming
exasperated, Foley said that, if Respondent was “bothering” them, he could have their name
removed from the call list, and the husband said to do so if such was what Foley wanted. Foley

20 Feathers described the conversation as “heated.”
21 Feathers testified that, at the point he joined Foley in questioning the new shirt policy,
seven or eight employees had arrived on the sales floor.
22 Later in the day, according to Feathers, he apologized to Hill for his behavior.
23 According to Foley, the sales presentation had to be concluded within 90 minutes “. . . so
we try to pace ourselves so we can get all the . . . questions and everything within that [time
period] . . . .”
24 As usual, prior to conducting the tour, Foley read notes, prepared by the marketing
department, on the married couple including how many such sales presentations the client had
attended, their purchase history, if any, and financial history.
25 Foley was not entirely surprised as the marketing notes indicated that the couple had
done this “a lot.”
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replied he could request they not be contacted for a few months, and the husband replied
“`that’s cool.’” Thereupon, Foley and the married couple left the sales floor and walked to
Respondent’s “gifting” counter where, in the customer’s presence, Foley asked the “gifting
person” to place a note in the customer’s account file not to “bother them” for a while. Hearing
this, the husband became angered, saying he sensed “animosity” form Foley. The latter
responded that they should not take what he had done and said the wrong way and said “`I love
you guys. You are a fantastic tour and I hope I was informative to you.’” He added that they
should understand his job was to ask them to buy, and they both knew that. At this point,
according to Foley, Hill suddenly approached, introduced himself, and said he wanted to hear
what was going on. Hill then asked the couple to come with him and would not permit Foley to
accompany them.
Foley further testified that, later in the afternoon, Hill asked him to come to Milholland’s
office. Inside the latter’s office, Milholland asked Foley “. . . `what seems to be the problem’”
and said “. . . `I come in and I hear you are sideways about the shirt tail. You had a shirt tail
incident that bothered you, and then . . . a little later, you get a customer all irritated. What’s
going on?’” Milholland then told Foley that he was being suspended for a day. Foley asked
why, and Milholland replied, mentioning the shirt tail incident and irritating a customer. Foley
replied that, with the customer, “. . . `I don’t miss a beat . . . . I don’t deviate. I do everything
properly the same way.’” Milholland replied that the customer intended “to write a letter.” Foley
then raised the shirt tail incident, saying it had not disrupted the sales floor as just a few people
overheard what had been said. He turned toward Hill and said he thought the problem had
been resolved and, then, turned back to Milholland, saying it made no sense to him that he was
being suspended when nothing was being done to Feathers and accusing Milholland of
“messing” with his pay for no reason. Milholland replied the reason for the suspension was to
permit them to do an investigation.
Charles Feathers testified that he was able to overhear Foley’s conversation with his
customers that day as they “. . . sit right across from each other” and that “. . . in my view,
[Foley] pushed this guy way too far that day, and I have seen him do it a couple of times in the
past and got away with it, and in this case . . . in my opinion, he was very upset from that
morning, and . . . with this guy, he was kind of taking it out on him. I mean, he told him he was
stupid twice.” Feathers added, “. . . the guy was being resistant to buying. It was obvious that
he had a need. Gerald had uncovered the need that the guy should buy more credits logically,
and he [wouldn’t] for whatever reason, and [Foley] was very frustrated with him, and . . . he just
told the owner, you know, `hey, if you don/t do this now, you are stupid, and the guy got upset.
He was, you know, visibly upset.’” According to Feathers, the customer was upset at the table,
and, at one point, the customer arose and he and Foley became “combative.” Subsequently,
Feathers testified, Foley took the customer to the “gifting” department where the latter was given
a gift. But, “. . . on the way out, the guy was really upset and was saying something about . . .
he wanted to talk to a manager. He was real upset. . . . Later, Feathers observed the customer
speaking to Hill. Feathers further testified that Foley approached him later in the day,
attempting to justify what he had said to the customer-- “It was not something I hadn’t seen
before, and it is not something . . . I haven’t seen from other people before . . . . I just said, `I
think you pushed it a little too far.”26 Finally, Feathers insisted that he had informed Hill as to
what Foley said to the customer.

26 Feathers asserted that Foley had belittled the customer. While Feathers asserted Foley
twice called the customer “stupid,” Foley specifically denied having done so.
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Rodney Hill testified that, subsequent to the shirt incident on September 4, “. . . everyone
had their guests that they were touring or presenting, and Mr. Foley . . . took . . . his guests to
the gifting window. They were finished, and I happened to be walking by a few minutes later,
and I saw the owner step back in anger and [say] `Who are you to tell me about my finances?
Who are you to belittle me in front of my wife?’” Foley then “took the guy’s arm” and apologized,
saying he had not meant it.27 According to Hill, after Foley finished with the customer, he spoke
to the customer for between 30 and 45 minutes and listened to his complaints. Hill described
the customer as being “extremely irate” and “the customer told me that Mr. Foley told the gifting
person . . . something to the effect of flag or mark their account and put them on the don’t call
back list, that they were wasting company time and company money.” Hill stated that he told
the customer to prepare a “statement” for documentation, that then “. . . I went to our HR
department to find out . . . what I should do, having two incidents in a row that day,”28 and that
his inclination was to discharge Foley. Approximately 90 minutes later, Hill testified, Foley
approached him “. . . and downplayed the situation as if it were no big deal and the guy got a
little frustrated, and I didn’t want to discuss it , , , because I had already spoken to HR about
[what had occurred] . . . .” Finally, I note that, in relating his conversation with the “irate”
customer, Hill never quoted the former as stating that Foley ever called him “stupid” and, in this
regard, failed to corroborate Feathers that the latter reported overhearing what Foley said to the
customer.
Foley testified that he reported for work on September 4, and that, prior to the start of the
daily sales meeting, Hill approached him and asked why he was there and had Foley received
his text message. Foley checked his cell phone and noticed that Hill had sent him a text
message, advising him not to report for work the next day. Foley complained that he was on
commission, and Hill was “messing with my livelihood.” Thereupon, Hill wrote a note on a piece
of paper; the note read, “Gerald Foley is on suspension until further notice for two incidents.”
Foley failed to hear anything from Respondent until September 10 when Hill telephoned him;
they arranged to meet at Respondent’s facility the next day. The following morning, Foley met
with Hill and Milholland in the latter’s office. After saying he was an awesome salesman, Hill
informed Foley that he was being discharged. Foley asked why, and Hill said “`multiple write-
ups.’”29 Foley replied that he had only received one in May, and Hill handed him two others,
one for the shirt tail incident and one for the customer difficulty. General Counsel’s Exhibit No.
3, a notice of corrective action dated September 4, concerns the shirt incident and states that
Foley was “visibly and vocally upset” over the new policy, “continued to argue” with Hill about it
in front of “the team,” became “more and more aggravated as he went on,” and “incited” another
sales representative to join him.30 General Counsel’s Exhibit No. 4, a notice of corrective action
dated September 4, concerns Foley’s encounter with his customer on September 2 and reads,
“Gerald had a major run in with an owner that I had to intervene in. The owner was very upset
that Gerald was belittling them for not purchasing more credits. He told the gifting personnel to

27 Asked how a sales representative can control a customer from feeling belittled when the
discussion is about in finances, Hill stated that sales people are required to be able to “read”
people, to be “diplomatic,” and know when customers have had enough.
28 During cross-examination, Hill directly contradicted himself, specifically denying he told
the human resources department that Foley had been involved in two incidents that day.
29 Hill failed to deny this portion of Foley’s testimony.
30 Foley denied continuing to press Hill, becoming more and more aggravated, or asking
Feathers to join in the conversation.
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`flag their account’ because they were wasting company time. The owner has filed a written
account of the incident.”31
Rodney Hill32 testified that he made the decision to discharge Foley. Asked why, Hill
testified, “I believe that Mr. Foley had taken his frustration and anger and disdain for authority
out on his owners having come out of that situation and being frustrated with having to tuck his
shirt in, I believe that he took it out on guests of Wyndham and to me . . . .” He added that the
basic reason was “[Foley] took his frustration out on an owner, I can’t have that.” Finally, Hill
denied suspending and then terminating Foley because he engaged in protected concerted
activities.
Legal Analysis
The complaint alleges that Respondent engaged in conduct violative of Section 8(a)(1)
of the Act by issuing warning notices to Foley on May 2 and September 4, suspending him on
September 2, and discharging him on September 11 because he and other employees engaged
in protected concerted activities and, on May 2, by threatening its employees by inviting them to
quit because they engaged in protected concerted activities, threatening its employees with
unspecified reprisals because they engaged in protected concerted activities, threatening its
employees with discharge because they engaged in protected concerted activities, and orally
promulgating an overly-broad rule prohibiting employees from engaging in protected concerted
activities. In order to determine exactly what occurred herein and to determine whether any of
Respondent’s acts and conduct violated Section 8(a)(1) the Act, I must, at the outset, delineate
my conclusions as to the respective credibility of the several witnesses. In this regard, by his
demeanor while testifying, Gerald Foley impressed me as being an honest witness, one who
appeared to be without artifice and to have clearly understood my admonition to tell the truth. I
shall rely upon his version of events herein. Likewise, Philip Bridges and James Robertson
each appeared to be testifying in a veracious manner, relating to the best of his recollection
what occurred during the events at issue herein. I rely upon each as corroborating the
testimony of Foley. Charles Feathers’ demeanor was, for the most part, that of a frank witness.
Nevertheless, I am convinced that only portions of his testimony are reliable.33 Thus, while his
versions of the May 2 sales meeting and the September 2 shirt incident were corroborated by
others, his version of Foley’s sales conversation with the married couple on September 2 was
utterly uncorroborated and specifically denied by the significantly more trustworthy Foley.34 In
this regard, I note that, notwithstanding having, by his account, spoken to the above customers
for over half an hour and listened to all their complaints regarding Foley’s conduct, Rodney Hill
never testified that the husband and wife were “irate” because Foley had twice called the

31 While denying having belittled the customers, Foley conceded having asked the gifting
person to place a note in their file about not bothering them any longer. Nevertheless, Foley
denied requesting anyone to “flag” their account for wasting Respondent’s time.
Apparently, the customer did submit a written account of what occurred to Respondent;
however, the latter failed to offer it as an exhibit and never offered an explanation for its failure
to do so. Accordingly, I draw the inference that said “account” would not have corroborated
either Hill’s or Feather’s versions of what occurred.
32 Hill denied ever implementing a rule, telling employees that they could not speak about
their salaries, bonuses, or commissions, or threatening employees for doing so.
33 I note, of course, that it is natural that a finder of fact believe portions of a witness’s
testimony and not believe other portions.
34 With regard to the shirt incident on September 2, wherever Foley and Feathers conflict, I
shall rely upon the testimony of the former.
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husband “stupid,” that Hill failed to corroborate Feathers that the latter reported what he heard
to Hill, and that Respondent failed to offer into the record, as evidence, the customers’ written
statement of what occurred during their tour with Foley.35 Accordingly, I do not rely upon what I
perceive as Feathers’ feigned testimony concerning Foley’s sales conversation with the married
couple. Finally, Rodney Hill impressed me as being an utterly disingenuous witness, one who
testified in a manner without regard for the truth and solely calculated to buttress Respondent’s
version of events. In this regard, I do not rely upon any aspect of his testimony herein, in
particular his description of Foley’s actions on May 2 or September 2, his characterization of
Foley’s customers on the latter date as “irate,” or his reason for discharging Foley.
Based upon my above-stated resolutions of credibility and the record as a whole, I find
that, subsequent to Respondent’s introduction of its OTP program in February, delays,
uncertainty as to percentages, and mistakes in the payment of commissions and bonuses
became commonplace; that such were a constant source of irritation and concern for
Respondent’s sales representatives, including Gerald Foley; that, on a daily basis, sales
representatives discussed the foregoing compensation problems amongst themselves on the
sales floor between tours; that Foley took part in said conversations until the time of his
discharge by Respondent; and that, during said discussions, Respondent’s in-house sales
representatives, including Foley, engaged in concerted activities, privileged by Section 7 of the
Act. JCR Hotel, Inc., 338 NLRB 250, 252 (2002); Salisbury Hotel, 283 NLRB 685, 686-687
(1987). Further, I find that, Rodney Hill, who manifested a rather intense aversion to what he
termed “negativity,” was well aware of these conversations, routinely interrupting sales
representatives and advising them that “. . . `this isn’t the time or the place to be talking about
[such problems]’” and that “. . . `we can’t do anything about this here . . . ,’” and viewed the
subject matter, which obviously involved the sales representatives’ terms and conditions of
employment, as expressing negativity and as adversely impacting upon the sales
representatives’ enthusiasm toward selling Respondent’s products. Moreover, I find that, at all
times material herein, Rodney Hill evidenced obvious antipathy toward Gerald Foley. Thus, Hill,
who professed admiration for Hill’s sales ability, concededly perceived Foley as the only
“outspoken” sales representative about the commonly-believed OTP problems and blamed him
for spreading and creating negativity by his expressions of bitterness, anger, and frustration
during his “one on one” conversations with other sales representatives on the sales floor,
concerning the payment of their commissions and their other terms and conditions of
employment, and by his “tendency” to complain about and question corporate decisions and
policies to Hill and to his fellow sales representatives.
Turning to the alleged unfair labor practices involving the May 2 sales meeting, based
upon my credibility resolutions and the record as a whole, I find that said meeting was the usual
early morning sales meeting, attended by all of Respondent’s inside-sales representatives and
conducted by Hill, to discuss sales and employment-related issues; that Hill began the meeting
by distributing a new commission structure for OTP sales and solicited questions from the
assembled sales representatives; that several employees, including Bridges, Jennifer Griffin,
and Feathers, asked compensation and commission-related questions; that Foley asked several
questions in a “direct” manner and of a type “. . . everybody had been asking about previously
on the sales floor . . . ” and “would have loved to have said;” that one of Foley’s questions
concerned Fairfield’s implementation of a similar OTP program and its processing of paperwork
on site without any delay and why could Respondent not operate its OTP program in a similar
manner; and that Hill perceived Foley’s questions as “badgering” him. I further find that Hill

35 I, therefore, draw the permissible inference that the married couple failed to corroborate
Feather’s assertions.
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was unable to answer many of the posed questions; that, after a while, some sales
representatives were asking questions without raising their hands and speaking over other
questioners; and that, at one point, Feathers attempted to stop the questioning but Foley, who
seated behind him, advised him to let the questioning continue. Next, I find that, eventually, the
questioning became heated and emotional; that Hill, who had become red-faced and visibly
aggravated, suddenly yelled “. . . `you know, that’s enough. This is a bunch of bullshit and I am
tired of it. . . . I will not have this in my sales meeting;’” and that he continued, saying “. . . if any
of you guys have any questions from now on about commissions . . . it will be done in my office
in private, and I don’t want to hear another peep-- I don’t want to hear anything at all. If you
want to work here, this is what you do.36
Respondent admits that, on May 14, it gave Foley a written warning for his actions
during the May 2 sales meeting37 including expressing his negative comments in front of the
assembled sales representatives As to whether said discipline was violative of Section 8(a)(1)
of the Act, the initial inquiry must be whether Foley engaged in protected concerted activities,
within the meaning of the Act, during the meeting. In this regard, I have found that the sales
meeting, attended by all Respondent’s in-house sales representatives, was called and
conducted by Hill in order for him to disseminate and discuss the new commission structure
related to Respondent’s OTP program and that Hill solicited and employees asked questions
related to their compensation and commission payments. At the outset, I agree with counsel for
the General Counsel that Respondent’s commission payment program, about which the sales
representatives expressed their concerns during the May 2 sales meeting, is obviously an
integral part of their terms and conditions of employment. Further, the Board has long held that
employee questions and comments, regarding changes in their terms and conditions of
employment, raised at a group meeting, called by an employer, clearly come within the
definition of concerted activity under Board precedent. Anheuser-Busch, Inc., 337 NLRB 3, 11
(2001); Chromalloy Gas Turbine Corp., 331 NLRB 858, 863 (2000); Neff-Perkins Co., 315
NLRB 1229 at 1229 n. 1 (1994); United Enviro Systems, 301 NLRB 942 (1991). In order for
concerted activity to be protected within the meaning of the Act, the activity (1) must involve a
work-related complaint or grievance; (2) the concerted activity must further some group interest;
(3) a specific remedy or result must be sought through the activity; and (4) the activity must not
be unlawful or otherwise improper. NLRB v. Robertson Industries, 560 F. 2d 396, 398 (9th Cir.
1976), cited with approval by the Board in Northeast Beverage Corp., 349 NLRB 1166, 1167 at
n. 9 (2007). Herein, the questions, which were posed by Foley and the other sales
representatives, were in furtherance of their interest in comprehending Respondent’s
commission structure for OTP sales and obtaining answers to their complaints regarding delays
and other problems plaguing their commission payments for such sales. Even assuming
arguendo, Foley was speaking for himself, the record evidence is that his questions expressed
group concerns and were of the type other employees desired to ask, and the Board has held
that “concertedness . . . can be established even though the individual [speaking] was not
‘specifically authorized’ . . . to act as a group spokesperson for group complaints.” Herbert F.
Darling, Inc., 287 NLRB 1356, 1360 (1988). In these circumstances, I believe that Foley was
engaged in protected concerted activities during the May 2 sales meeting.

36 I note that Hill admitted he uttered almost the identical threat to the employees-- “. . . that
my dad always told me that if you don’t like it somewhere, rather than whining and complaining
about it, go find another job.”
37 The “required Improvement” paragraph expands upon Hill’s admonition at the end of the
May 2 sales meeting. In said paragraph, Respondent warned Foley he must cease his
“expressions of open negativity” to other sales representatives on the sales floor.
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Inasmuch as Foley was disciplined for allegedly engaging in misconduct in the course of
his protected concerted activity, for a determination as to whether said discipline was violative of
Section 8(a)(1) of the Act, I rely upon the Supreme Court’s analytical framework set forth in its
Burnup & Sims, Inc., 379 U.S. 21 (1964), decision. Pursuant to this approach, in order to
establish a violation of the aforementioned provision of the Act, the General Counsel must first
have established that the discipline to Foley occurred; the burden then shifted to Respondent to
establish that it possessed a good-faith belief that he engaged in the misconduct; and then the
burden shifted back to the General Counsel to establish by a preponderance of the evidence
that Foley, in fact, did not engage in the alleged misconduct or that his entire course of conduct
constituted protected concerted activity. Marshall Engineered Products Co., 351 NLRB 474,
475 (2007). Utilizing the foregoing analysis, Respondent admitted that Foley received a
warning notice on May 14 based upon his asserted misconduct during the sales meeting on
May 2, including voicing his frustrations to the group and agitating others. As to whether
Respondent established that it possessed a good faith belief that Foley engaged in misconduct,
I think that the assertions in Respondent’s May 14 disciplinary notice were a miasma of
embellishment and fabrication. Thus, I simply do not believe Hill’s testimony that Foley said
anything to “incite” the other sales representatives or was “badgering” him and note that no
other witness corroborated him. Moreover, Foley specifically denied engaging in the asserted
misconduct, and the record evidence corroborates him. Finally, even assuming Respondent
met its burden of proof, and I do not, while he may have asked more questions than the other
sales representatives and done so in a direct manner, Foley engaged in no threatening acts or
similar conduct. Accordingly, his actions during the sales meeting were not sufficiently
egregious to be outside the protection of the Act and to warrant discipline. Anheuser-Busch,
Inc., supra, at 11; Chromalloy Gas Turbines, supra; Consumers Power Co., 282 NLRB 130,132
(1986); F. W. Woolworth Co., 251 NLRB 1111, 1112-1113 (1980). Rather, I believe that clearly
angered at the sales representatives’ persistent questions and complaints during the sales
meeting and perceiving Foley, whom he viewed as the primary purveyor of negativity amongst
the sales representatives, as being the leader, Hill issued a clearly unwarranted warning notice
to him for engaging in protected concerted activities. In these circumstances, I find that
Respondent violated Section 8(a)(1) of the Act.
Next, with regard to Respondent’s actions during the May 2 sales meeting, the General
Counsel alleges that Respondent violated Section 8(a)(1) of the Act in two other regards. I have
found that Hill ended the meeting by informing the assembled employees that any questions,
regarding their commission payments must be asked in private in his office and “. . . I don’t want
to hear another peep-- I don’t want to hear anything at all. If you want to work here, this is what
you do.” The General Counsel contends that Hill’s dictate constituted the oral promulgation of
an unlawful rule, prohibiting employees from engaging in concerted activities. In this regard, in
Lutheran Heritage Village-Livonia, 343 NLRB 646 at 646-647 (2004), the Board articulated the
following standard for determining whether an employer’s maintenance of a work rule, which
impinges upon employees’ Section 7 rights, violates Section 8(a)(1) of the Act. Thus, if said rule
explicitly prohibits or restricts Section 7 activities, said rule is unlawful. If the rule does not
explicitly such activity, said rule is nonetheless unlawful if (1) employees would reasonably
construe the language of the rule to prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7
rights. Clearly, employees enjoy a Section 7 right to discuss their employer’s compensation
practices with each other. Herein, the record evidence is that the sales representatives
regularly, on a daily basis on the sales floor, discussed with each other their problems with and
complaints about Respondent’s commission payment practices and policies and that Rodney
Hill was well aware of said conversations and regularly interrupted them as expressions of
“negativity.” In these circumstances, I think there can be little doubt that, while uttered in the
context of their questions during the sales meeting, given Hill’s attitude and past practice, the
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assembled sales representatives reasonably understood Hill as announcing a new work rule,
prohibiting them from engaging in protected concerted activity on the sales floor.38 Accordingly,
I find that Respondent’s above conduct violated Section 8(a)(1) of the Act. In addition, the
General Counsel contends that Hill’s closing comment to the assembled sales representatives,
“If you want to work here, this is what you do” or, as he admitted stating, “. . . my dad always
told me . . . if you didn’t like it somewhere, rather than whining and complaining about it, go find
another job,” constituted a threat of discharge if employees failed to adhere to Respondent’s
unlawful, new work rule. I agree. The “if you want to work here . . .” warning was nothing less
than a blatant threat of discharge, and the admitted “if you didn’t like it somewhere . . . go find
another job” comment constituted an invitation to quit, which the Board considers tantamount to
an unlawful threat of discharge. Merit Contracting, Inc., 333 NLRB 562, 563 (2001); House
Calls, Inc., 304 NLRB 311, 313 (1991). However he phrased it, I find that Hill coercively
threatened the sales representatives with discharge unless they adhered to his unlawful work
rule and, therefore, interfered with their Section 7 rights in violation of Section 8(a)(1) of the Act.
Id.
I now turn to the disciplinary written warning, based upon his asserted acts and conduct
on the morning of September 2, which Foley received from Respondent on September 11. In
this regard, based upon my resolutions of credibility and the record as a whole, I find that, prior
to September 2, Respondent had permitted its male sales representatives to wear Tommy
Bahama-style shirts while working and did not require said shirts to be tucked inside the
trousers; that, on or about said date, Respondent implemented a new dress rule, requiring male
service representatives to wear their shirts tucked into their trousers; that some, if not all, the
male sales representatives were upset by the rule change; that Gerald Foley, who had been on
vacation when the above dress code was implemented, reported for work at approximately
7:30am on September 2 and encountered Rod Hill on the sales floor; that two other sales
representatives, Charles Feathers and James Robertson, were seated at their desks; that
Foley, who had heard a rumor about a dress rule change, was wearing a Tommy Bahama shirt
not tucked into his pants; that Hill noticed and said Respondent had a new dress rule-- shirts
must be tucked into the trousers; that Foley, who had no knowledge of any employee
dissatisfaction with the new rule, asked whether such was true and Hill replied, yes; that,
apparently unsatisfied with Hill’s response, Foley asked whether the new rule was a corporate-
wide policy change and, if so, why such had not been posted; that Hill replied by asking why
Foley wanted everything to be in writing, and Foley responded, saying he asked because in
companies, such as Respondent, policy changes are announced in memos; that, at this point,
Feathers interjected, saying that “It is pretty restrictive. You know, I might not want to tuck in my
shirt . . .” and that he had not “. . . signed up for such `crap’ and `. . . I don’t need the money . . .
. This is not what I signed up for . . . ;” that Foley neither discussed the issue with Feathers
beforehand nor requested the latter to join him in protesting the rule change; that, thereupon,
Hill told both sales representatives to “go home” for the day; and that, after a moment, Hill
reconsidered, told Leila Darling, a sales manager, to conduct the sales meeting, and asked
Feathers and Foley to accompany him to his office. I further find that, inside his office, Hill
began a long story about his daughter, who, after her eighteenth birthday, announced she no
longer wanted to adhere to the family rules; that, eventually, Hill told the two men to return to
work; that both Feathers and Foley apologized for their behavior and left the office; that,
subsequently, Foley received a written warning for his above-described conduct, stating that
Foley was “visibly and vocally upset” by the new dress rule, argued with Hill about it in front of
“the team,” became more and more “aggravated” as he argued, and “incited” another employee
to join him; that Foley denied continuing to press Hill, becoming more and more aggravated, or

38 Whether Respondent ever enforced Hill’s work rule is, in my view, irrelevant.
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requesting that Feathers join in the conversation; and that Feathers received no discipline from
Respondent for his part in confrontation with Hill.
Contrary to the General Counsel, I am unable to conclude that the warning notice,
which was issued to Foley based upon the foregoing incident, was violative of Section 8(a)(1) of
the Act. In this regard, I initially find, in agreement with counsel for the General Counsel, that an
employer’s dress code constitutes a term and condition of employment. Public Service Co. of
New Mexico, 337 NLRB 193, 199 (2001); St. Luke’s Hospital, 314 NLRB 434, 440 (1994). In
order to be concerted, employee activity must be engaged in with or on the authority of other
employees and not solely by, and on behalf of, the employee himself. Herbert F. Darling, Inc.,
287 NLRB 1356, 1358 (1988); Meyers Industries, 268 NLRB 493, 497 (1986). Moreover, I
believe, there must be clear record evidence of some “. . . employee interaction in support of a
common goal.” Meyers Industries, supra, at 494.39 As to whether Foley acted concertedly while
expressing his concerns to Hill about Respondent’s new requirement that shirts must be tucked
into men’s’ trousers, there can be no contention that Foley acted in such a manner prior to
Feathers joining him. In this regard, Foley seems to have been acting out of his own self-
interest, unaware of any general employee dissatisfaction with the new dress rule, and there
exists no evidence that Foley sought any form of group action in support of his individual
protest. As to whether Foley’s individual protest was somehow transformed into concerted
activity at the point that Charles Feathers spoke and interjected himself into the confrontation
with Hill, I note that there exists not a scintilla of record evidence that Foley and Feathers
consulted with each other or in any manner planned to engage in a joint protest of Respondent’s
new dress rule that morning. What seems to have occurred is that, overhearing Foley’s
conversation with Hill and upset by the new dress rule, Feathers decided to act independently
and in his own self interest by raising his own complaints about the new policy. In these
circumstances, I conclude that the two sales associates never acted concertedly and rely upon
the Board’s decision in Traylor-Pamco, 154 NLRB 380 (1965) as precedent. In that case, the
respondent was engaged in digging tunnels for a sewer project in the Seattle, Washington area.
Its employees normally ate their lunches outside the tunnel in a so-called dry shack. After being
instructed to do so in order to minimize downtime during concrete pours, all of the employees,
except the two alleged discriminatees, began eating their lunches inside the tunnel. The two
other employees continued to eat their lunches inside the dry shack, and the respondent
terminated them for insubordination. The Board dismissed the complaint, finding that the two
employees had not acted concertedly. In so concluding, the Board noted that there was no
evidence that the two alleged discriminatees had ever discussed continuing to eat in the dry
shack or had relied upon each other in deciding not to eat lunch inside the tunnel and that, in
refusing to eat their lunches inside the tunnel, the association between the employees was
merely “accidental.” Id. at 388.40 Accordingly, as I believe that, all times during their
confrontation with Hill, Foley and Feathers acted independently of each other with each

39 In Meyers Industries, the Board noted that such was the requirement for concerted activity
prior to the Board’s decision in Alleluia Cushion Co., 221 NLRB 999 (1975), in which the Board
redefined the meaning of concerted activities. Thereafter, in Meyers Industries, the Board
overruled Alleluia Cushion and reverted to an “objective” standard for concerted activity—that
which had been the standard prior to Alleluia. Meyers Industries, supra, at 496. Apparently,
then, concerted activity again requires employee “interaction in support of a common goal.”
40 I view the Board’s decision in Brawly Beef, LLC, 339 NLRB 476 (2003), as
distinguishable. Thus, in said matter, an employee independently joined in the complaints of
another employee and, as the former was bilingual, she became the “spokesperson” for the two.
On said basis, the Board concluded, they acted concertedly. Id. at 478. There is no evidence
herein to suggest that either Foley or Feathers acted or became the spokesperson for both.
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advancing his own self-interest and without a common goal and that,, therefore, at no point, did
Foley act concertedly, it follows that the disciplinary notice, based upon his conduct during said
confrontation, was not unlawful. Therefore, I shall recommend dismissal of this allegation of the
complaint.
Turning to Respondent’s suspension of Foley on September 2 and subsequent
discharge of him on September 11, bearing in mind the record as a whole and my credibility
resolutions, I find that, on September 2, shortly after the above-discussed incident, Foley was
assigned to a tour (a husband and wife); that he introduced himself to them and escorted them
upstairs to his desk on the sales floor; that, in attempting to sell them OTP credits, he followed
his normal sales routine of asking the customers to detail their financial condition and
uncovering any financial problems which would negate his sales effort; that he detailed the OTP
program to the couple and explained they were in a fortunate position to be able to purchase the
available credits at a reduced price; that, when their conversation turned to the price for the
credits, the customers “. . . were giving [him] all the buy signs;” that, at the point Foley asked the
customers for a decision, the customers said “. . . `maybe right now is not a good time;’” that, in
an effort to save the sale, he asked why, and the husband replied that a sale might be possible
in a month or two; that Foley explained why purchasing the credits would be more
advantageous at the present time but the customers continued to say no; that, at the end of
their conversation, the husband told Foley that Respondent “. . . always bothered him about
coming to such sales presentations; that Foley asked why this bothered him, and the husband
replied “. . . but if you guys want to keep calling me and giving me stuff . . . ;” that, becoming
exasperated, Foley said that, if Respondent was “bothering” them, he could have their names
removed from the call list; that the husband told Foley to do so if such is what he wanted; that
Foley replied, saying he could have a note placed in the couple’s file that they not be contacted
for a few months; and that the husband said, “that’s cool.” Next, I find that, at the
conclusion of his 90 minute sales presentation, Foley escorted the couple to Respondent’s
gifting department; that, in the couple’s presence, at the gifting counter, Foley asked the gifting
person to place a note in the customer’s account file not to “bother them” for a while; that,
hearing what Foley said, the husband became angered, saying he sensed “animosity” from
Foley; that Foley said they shouldn’t take what he did the wrong way, said “`I love you guys.
You are a fantastic tour and I hope I was informative to you,’” and added that they should
understand his job was to sell them credits and they both knew that; and, at this point, Rodney
Hill approached, introduced himself, said he wanted to hear what had happened, and asked the
couple to come with him. Next, I find that Hill spoke to the customers for 30 to 45 minutes and,
before they left, asked them to prepare a “statement” for documentation of what had occurred;
that he then “. . . went to our HR department to find out . . . what I should do, having two
incidents in a row that day;” and that his inclination was to discharge Foley
I further find that, later in the afternoon, Hill asked Foley to accompany him to Derek
Milholland’s office; that, inside the latter’s office, Milholland told Foley he was being suspended;
Foley asked why, and Milholland replied, mentioning the shirt tail incident and irritating a
customer; that Foley replied he had followed his normal sales technique, and Milholland replied
that the customers intended to write a letter; that Foley then noted that Feathers received no
discipline for the morning incident and accused Milholland of “messing” with his pay; and that
Milholland then said the reason for the suspension was to permit them to undertake an
investigation. Finally, I find that, on September 11, Foley was summoned to Respondent’s
facility and met with Hill and Milholland in the latter’s office; that Hill began by characterizing
Foley as an “awesome” salesman and then informed him he was being discharged; that Foley,
who was uncontroverted on this point, then asked why, and Hill replied, “multiple write-ups;” that
Foley then said he had received just one written warning, and Hill then handed him two others,
with the first based upon the shirt incident and the other based upon the sales incident; that the
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latter accused Foley of having a “run in” with the customers and of “belittling” them for not
purchasing credits and noted that the customers had filed a written account of the incident; and
that Hill testified that the reason for Foley’s suspension and discharge was that Foley had taken
his “anger,” his “frustration” with having to tuck his shirt in, and his “disdain for authority” out on
the customers, Respondent’s guests, and “to me.” He added, “I can’t have that.”
The General Counsel contends that Respondent’s suspension and discharge of Foley
were violative of Section 8(a)(1) of the Act, having been motivated by his protected concerted
activities, including questioning the manner in which Respondent calculated commissions and
the timeliness of said commission payments to the in-house sales representatives. Inasmuch
as Respondent contends that, rather than for his protected concerted activities, it initially
suspended and then discharged Foley for legitimate business reasons, belittling a customer, I
believe the legality of Foley’s suspension and subsequent discharge must be analyzed utilizing
the Wright Line analytical framework for mixed motive discharges. In this regard, pursuant to
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the
General Counsel had the initial burden of establishing by a preponderance of the evidence that
protected concerted activity was a “motivating factor” in Respondent’s decision to suspend and
discharge Foley. Thus, counsel for the General Counsel had the burden of showing that Foley
engaged in protected concerted activities, that Respondent possessed knowledge of Foley’s
activities, and that Respondent demonstrated unlawful animus against her. Upon such a
showing, the burden of persuasion shifted to Respondent to establish that it would have
suspended and discharged Foley notwithstanding her protected concerted activities. Detroit
Newspapers, 342 NLRB 1268, 1269-1270 (2004); Belle of Sioux City, 333 NLRB 98, 100-101
(2001); Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000).
Utilizing the foregoing approach, the record establishes that, in fact, Respondent
harbored unlawful animus toward Foley regarding his protected concerted activities. Thus, as
did all of Respondent’s sales representatives, Foley regularly participated in their daily
conversations, on the sales floor, concerning problems with their commission payments for OTP
sales, including delays and mistakes in such payments-- conduct, which, I have previously
concluded, was privileged by Section 7 of the Act. Further, of course, Foley had joined in the
questioning of Hill during the May 2 sales meeting. Next, the record evidence is that
Respondent was well aware of Foley’s protected concerted activities. Thus, Hill admitted he
was aware Foley regularly discussed commission-related problems with other sales
representatives on the sales floor and was “outspoken” when doing so. Also, of course, Hill
knew that, during the May 2 sales meeting, Foley had participated in the questioning of him,
regarding delays and other problems related to the receipt of commissions and had disciplined
him for doing so. Finally, there is ample record evidence of Respondent’s unlawful animus
towards Foley. Initially, I have concluded that, on May 14, Respondent previously had
unlawfully disciplined Foley for engaging in protected concerted activities and that the
disciplinary warning notice contained palpable falsehoods and embellishments justifying the
imposed discipline. Also, in this regard, on May 2, having become angered while listening to
their concerted complaints about compensation, Hill effectively admitted threatening the
assembled sales representatives with discharge, warning that, if they were dissatisfied with
Respondent’s terms and conditions of employment, rather than complaining, they should quit
and find other jobs. Further, while testifying, Hill riled against what he perceived as Foley’s
“negativity,” by which, I believe, he meant Foley’s protected concerted activities. Thus, Hill
specifically referred to Foley’s daily “one on one” conversations, concerning such subjects as
“decisions made by authority,” company policies, and priority for sales with his fellow sales
representatives on the sales floor. On this point, in the May 14 disciplinary notice to Foley, Hill
specifically required that the former “stop” expressing “open negativity” with other sales
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representatives on the sales floor. Moreover, during his discharge conversation with Hill and
Milholland, when Foley asked Hill why he was being discharged, the latter replied “’multiple
write-ups,’” which, presumably included the May 14 disciplinary notice-- an admission Hill failed
to deny. Accordingly, I believe that the General Counsel has established the existence of ample
record evidence that Respondent suspended and subsequently discharged Gerald Foley
because he engaged in protected concerted activities.
The burden of persuasion then shifted to Respondent to establish that it would have
suspended and subsequently discharged Foley notwithstanding the existence of unlawful
motivation. Hill’s explanation for the suspension and discharge was that Foley was “. . .
frustrated with having to tuck his shirt in. I believe that he took it out on guests of Wyndham and
to me . . .” and “. . . I can’t have that.” In this regard, Foley himself admitted that the married
customers became angered when, in their presence, he requested that the gifting person place
a note, not to “bother them” for a while, in their file. Normally, it is not the province of an
administrative law judge to second guess a management decision, and I am loath to do so
especially when the alleged discriminatee admits the misconduct. However, on the basis of my
assessment of the credibility of its witnesses and the record as a whole, I am convinced that
Respondent has failed to meet its burden of persuasion. Thus, I initially note that Hill was an
utterly mendacious witness, one not worthy of belief as to any aspect of his testimony, including
his asserted rationale for discharging Foley. Moreover, while Hill characterized the married
couple as being “extremely irate” over Foley’s instruction to the gifting person, his testimony on
this crucial point was uncorroborated. In this regard, while the married couple supposedly
provided it with a “written account” of the incident, Respondent failed either to offer the
document into the record or to explain its failure to do so. In these circumstances, the inference
is warranted that, if said document exists, it does not corroborate Hill’s assertion. Further, I
have previously concluded that Charles Feathers fabricated his testimony that he overheard
Foley’s sales conversation with the married couple and that Foley called the husband “stupid”
twice. In my view, rather than being offered for the truth, Respondent offered said calumny for
the sole purpose of increasing the gravity of Foley’s contretemps with the married couple,
thereby bolstering Respondent’s defense. In these circumstances, notwithstanding Foley’s
admitted conduct, when motive is of paramount concern, Respondent’s demonstrable guile
convinces me that I can not rely upon Hill’s asserted justification for suspending and
subsequently discharging Foley. Put another way, Respondent has failed to demonstrate that it
would have suspended and then terminated Foley notwithstanding the existence of ample
unlawful animus.41 Accordingly, I find that Respondent suspended and then discharged Foley
because he engaged in protected concerted activities in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. On May 2, by inviting its employees to quit because they engaged in protected
concerted activities, Respondent thereby threatened its employees with discharge and, thereby,
engaged in acts and conduct in violation of Section 8(a)(1) of the Act.

41 I think Respondent seized upon an inconsequential incident to rid itself of an “outspoken”
employee, the one most responsible for spreading “negativity” in the workplace, by which
Rodney Hill meant Foley’s penchant for interacting with other sales representatives regarding
their terms and conditions of employment-- i.e. engaging in protected concerted activities.
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3. On May 2, by orally promulgating an overly broad work rule prohibiting its employees
from engaging in protected concerted activity, Respondent thereby engaged in acts and conduct
in violation of Section 8(a)(1) of the Act.
4. On May 14, by giving its employee, Gerald Foley, a disciplinary notice because he
engaged in protected concerted activities during a sales meeting on May 2, Respondent thereby
engaged in acts and conduct in violation of Section 8(a)(1) of the Act.
5. On September 2, by suspending its employee, Gerald Foley, because he engaged in
protected concerted activities, Respondent thereby engaged in acts and conduct in violation of
Section 8(a)(1) of the Act.
6. On September 11, by discharging its employee, Gerald Foley, because he engaged in
protected concerted activities, Respondent thereby engaged in acts and conduct in violation of
Section 8(a)(1) of the Act.
7. Respondent’s above-described unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
8. Unless set forth above, Respondent engaged in no other unfair labor practices.
REMEDY
I have found that Respondent engaged in serious unfair labor practices within the
meaning of Section 8(a)(1) of the Act. Accordingly, I shall generally recommend that
Respondent be ordered to cease and desist from engaging in such acts and conduct.
Specifically, I have found that Respondent unlawfully suspended and subsequently discharged
its employee, Gerald Foley, because he engaged in protected concerted activities. Therefore, I
shall recommend that Respondent be ordered to offer him immediate reinstatement to his
former position of employment or, if said position no longer exists, to a substantially equivalent
position, with no loss of seniority or any other rights and privileges previously enjoyed and to
make him whole for any loss of earnings and other benefits, computed on a quarterly basis from
September 2, 2009 to the date of a proper offer of reinstatement to him, less any interim
earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1980) with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987). Further, I shall recommend that
Respondent be ordered to expunge from its records any references to its unlawful actions
against Foley, including its May 14 disciplinary notice to him and its suspension and termination
of him, and to inform him that such has been done. Finally, I shall recommend that Respondent
be ordered to post notices to its employees, advising them of its unfair labor practices and the
steps it is required to take to remedy them.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended42

42 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The Respondent, Wyndham Resort Development Corporation d/b/a
Worldmak by Wyndham, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Inviting its employees to quit because they engaged in protected concerted
activities;
(b) Orally promulgating an overly broad work rule, prohibiting its employees from
engaging in protected concerted activities;
(c) Giving its employees disciplinary notices because they engaged in protected
concerted activities during a sales meeting;

(d) Suspending and/or discharging its employees because they engaged in protected
concerted activities;
(e) In any like or related manner interfering with, restraining, or coercing its 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) Within 14 days from the date of the Board’s Order, offer Gerald Foley full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed
and make Foley whole for any loss of earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in the remedy section of the decision;
(b) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful disciplinary notice, suspension, and discharge, and within 3 days
thereafter notify Foley, in writing, that this has been done and that the disciplinary notice,
suspension, and discharge will not be used against him in any way;
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order;
(d) Within 14 days after service by the Region, post at its facility in Las Vegas,
Nevada, copies of the attached notice marked “Appendix.”43 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60

43 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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consecutive 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 covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the 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 May 2, 2009.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. August 18, 2010

____________________
Burton Litvack
Administrative Law Judge

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT invite you to quit because you engaged in protected concerted activities.
WE WILL NOT announce an overly broad rule, prohibiting you from engaging in protected
concerted activities.
WE WILL NOT give you a disciplinary notice because you engaged in protected concerted
activities.
WE WILL NOT suspend and/or discharge you because you engaged in protected concerted
activities.
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, within 14 days from the date of this Order, offer Gerald Foley full reinstatement to
his former job or, if that job no longer exists, to substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed, and WE WILL
make Foley whole for any loss of earnings and other benefits resulting from his suspension and
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful disciplinary notice, suspension, and discharge of Foley, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the disciplinary notice,
suspension, and discharge will not be used against him in any way.
Wyndham Resort Development Corporation d/b/a
Worldmark by Wyndham
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.