Aqua-Aston Hospitality, LLC, d/b/a Aston Waikiki Beach Hotel and Hotel Renew, (2017)

Docket Number:20-CA-154749
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew and UNITE HERE! Local 5 Cases 20–CA–154749, 20–CA– 157769, 20–CA–160516, and 20–CA–160517

April 10, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On May 31, 2016, Administrative Law Judge Mara-Louise Anzalone issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Respondent also filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified below2 and to adopt the recommended Order as modified.3

1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

In adopting the judge’s finding that the Respondent failed to establish that it held a good-faith belief that discriminatees Edgardo Guzman and Santos “Sonny” Ragunjan engaged in misconduct, we note that the record does not support that the employees’ solicitation activity would have constituted misconduct under the Respondent’s handbook policies. In addition, we do not rely on the judge’s citation to Clear Pine Mouldings, 268 NLRB 1044 (1984), enfd. 768 F.2d 148 (9th Cir. 1985).

In finding that the Respondent, through Vice President of Operations Gary Ettinger, violated Sec. 8(a)(1) of the Act, we rely solely on the judge’s credited account that Ettinger told employees: (1) to stop the rallies or they would lose work; (2) to stop bothering their coworkers about the Union at home or the police would get involved; (3) that they were lucky to have jobs; and (4) that they were welcome to apologize to him.

Acting Chairman Miscimarra agrees with his colleagues that Ettinger violated Sec. 8(a)(1) by inviting employees to apologize to him for their union activity. He finds, however, that the General Counsel did not otherwise sustain his burden of affirmatively showing that Ettinger made any specific statements that would objectively be understood by a reasonable employee to prohibit protected conduct. Rather the General Counsel presented—and the judge relied upon—general employee testimony that was more likely to reflect employees’ subjective impressions of Ettinger’s message than reliably to report what he actually said. Acting Chairman Miscimarra finds the judge’s conclusions in this respect further undermined by the importance that the judge attached to employees’ supposed inability to understand

AMENDED CONCLUSIONS OF LAW

Insert the following as Conclusion of Law 3(d).

“(d) threatening employees with unspecified reprisals for handbilling in nonwork areas.”

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew, Honolulu, Hawaii, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

  1. Insert the following as paragraph 1(e) and reletter the subsequent paragraph.

    “(e) Threatening employees with unspecified reprisals for handbilling in nonwork areas.”

  2. Substitute the following for paragraph 2(b).

    “(b) Within 14 days after service by the Region, post at its facility in Honolulu, Hawaii copies of the attached notice marked “Appendix” in English, Ilocano, and Tagalog.4 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other

    Ettinger’s language and to Ettinger’s position within the Company. Additionally, Acting Chairman Miscimarra does not agree with or rely on the judge’s finding that the lower lobby was a nonwork area. See Sheraton Anchorage, 362 NLRB No. 123, slip op. at 5 (2015) (Member Miscimarra, concurring in part and dissenting in part). Accordingly, Acting Chairman Miscimarra affirms the judge’s conclusion that the Respondent violated Sec. 8(a)(1) by threatening employees with unspecified reprisals for handbilling in nonwork areas solely because the record supports the judge’s finding that the Respondent’s threat related to the entire property, not just the lower lobby.

    2 We have amended the judge’s conclusions of law to conform to her unfair labor practice findings.

    3 We shall modify the judge’s recommended Order to conform to her unfair labor practice findings and provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010), and substitute a new notice to conform to the Order as modified.

    4 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.”

    365 NLRB No. 53

    2

    material. If 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 19, 2015.”

  3. Substitute the attached notice for that of the administrative law judge.

    Dated, Washington, D.C. April 10, 2017

    ______________________________________

    Philip A. Miscimarra, Acting Chairman

    ______________________________________

    Mark Gaston Pearce, Member

    ______________________________________

    Lauren McFerran, Member

    (SEAL) NATIONAL LABOR RELATIONS BOARD

    APPENDIX NOTICE TO EMPLOYEES

    POSTED BY ORDER OF THE

    NATIONAL LABOR RELATIONS BOARD

    An Agency of the United States Government

    The National Labor Relations Board has found that we violated the National Labor Relations Act 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 discipline you for engaging in union and/or protected activity.

    WE WILL NOT order you to cease engaging in union and/or protected activity.

    WE WILL NOT threaten you with discharge for engaging in union and/or protected activity.

    WE WILL NOT ask you to disclose your feelings about the union.

    WE WILL NOT threaten you with unspecified reprisals for handbilling in nonwork areas of the Hotel properties.

    WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above.

    WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful written warnings issued to Edgardo Guzman and Santos “Sonny” Ragunjan, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the written warnings will not be used against them in any way.

    AQUA-ASTON HOSPITALITY, LLC D/B/A ASTON

    WAIKIKI BEACH HOTEL AND HOTEL RENEW

    The Board’s decision can be found at www.nlrb.gov/case/20–CA–154749 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.

    Scott E. Hovey, Jr. and Jeff F. Beerman, Esqs., for the General

    Counsel.

    Robert S. Katz and Christine K. David, Esqs. (Torkildson Katz

    Moore Hetherington & Harris) for the Respondent. Jennifer Cynn, Esq. for the Charging Party.

    DECISION

    STATEMENT OF THE CASE

    MARA-LOUISE ANZALONE, Administrative Law Judge. I heard this case on February 2 through February 5, 2016, in Honolulu, Hawaii. This case was tried following the issuance of an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing (the Complaint) by the Regional Director for Region 20 of the National Labor Relations Board (the Board) on October 28, 2015. The Complaint was based on a number of original and amended unfair labor practice charges, as captioned above, filed by UNITE HERE! Local 5 (Local 5, the Union or Charging Party). The General Counsel alleges that Respondent Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew (Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et. seq. (the Act). The Respondent filed a timely answer to the Complaint denying the commission of the alleged unfair labor practices.

    At trial, all parties were afforded the right to call, examine, and cross-examine witnesses, to present any relevant documentary...

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