The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER GRANTING THE PETITION FOR INJUNCTION UNDER SECTION 10(J) OF THE NATIONAL LABOR RELATIONS ACT
Once again, the court addresses the National Labor Relations Board's (the "Board") allegations that Waikiki's Pacific Beach Hotel (the "Hotel") has engaged in unfair labor practices. And once again, the court agrees that the Hotel has engaged in unfair labor practices.
The parties in this action are no strangers to each other, much less to this court. For nearly a decade, the Board has filed numerous complaints asserting that HTH Corp. ("HTH"), Pacific Beach Corp. ("PBC"), and Koa Management, LLC ("Koa") d/b/a/ the Hotel (collectively, "Respondents") have engaged in a litany of violations of the National Labor Relations Act (the "NLRA" or the "Act") -- for meddling with, failing to recognize, and refusing to negotiate with the International Longshore and Warehouse Union, Local 142, AFL-CIO (the "Union"). In each action, the Board has found that Respondents did indeed commit various violations of the Act, and this court has already entered one injunction preventing Respondents from violating the Act and requiring them to take certain affirmative steps. The court now enters its second injunction in less than two years, and, in a separate order, finds Respondents in contempt for violating the court's previous injunction.
In this action, Petitioner Joseph F. Frankl, Director of Region 20 of the Board ("Petitioner") asserts that Respondents have once again violated the Act by disciplining and terminating employee Rhandy Villanueva ("Villanueva") to discourage Union activities, making unilateral changes to the policy of allowing Union representatives access to the Hotel, making unilateral changes to conditions of employment, and refusing to give requested information to the Union.*fn1 On September 13, 2011, Administrative Law Judge John J. McCarrick ("ALJ McCarrick"), after hearing sixteen days of testimony, issued a Decision finding that Respondents committed various violations of the NLRA, and Respondents have appealed the ALJ Decision to the Board. See HTH Corp., 2011 WL 4073681 (NLRB Sept. 13, 2011).
In the meantime, Petitioner has sought interim injunctive relief from this court pursuant to § 10(j) of the NLRA, 29 U.S.C. § 160(j) (referred to herein as "§ 10(j)"). Specifically, Petitioner requests that the court issue an injunction ordering Respondents to, among other things, reinstate Villanueva, bargain in good faith with the Union, and provide requested information. Respondents object to the Petition, arguing that they have not violated the Act and injunctive relief is not otherwise warranted. Based on the following, the court GRANTS the § 10(j) Petition.
Since the beginning of its drive to organize the Hotel's employees in 2002, the Union has faced opposition from Respondents. A July 31, 2002 election was overturned by the Board due to Respondents' coercive interrogation of employees and maintenance of an overly broad no-solicitation policy. HTH Corp., 342 NLRB 372 (2004). In a second election on August 24, 2004, Respondents challenged several ballots, resulting in the Board ordering those ballots to be counted and the Union winning the election by one vote. Pacific Beach Corp., 344 NLRB 1160 (2005). On August 15, 2005, the Regional Director issued a certificate of representation in favor of the Union.
After the Union was certified, Respondents continued their campaign to derail the Union, forcing Petitioner to file Complaints against Respondents from 2007 through 2008, which resulted in a September 30, 2009 decision by ALJ James M. Kennedy finding that Respondents had committed numerous NLRA violations, followed by a June 14, 2011 affirmance by the Board. See HTH Corp., 356 NLRB No. 182, 2011 WL 2414720 (2011). While waiting for the Board decision, Petitioner filed a Petition for § 10(j) relief, which this court granted on March 29, 2010 (the "March 29, 2010 Injunction"), see Norelli v. HTH Corp., 699 F. Supp. 2d 1176 (D. Haw. 2010), and which was affirmed on July 13, 2011. Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011).
After the March 29, 2010 Injunction, Petitioner filed a new Complaint against Respondents with the NLRB, and also sought contempt sanctions in this court for alleged violations of the March 29, 2010 Injunction (addressed in a separate order). On September 13, 2011, ALJ McCarrick issued his Decision finding that Respondents committed various violations of the NLRA. See HTH Corp., 2011 WL 4073681.
In the meantime, on July 20, 2011, Petitioner filed the present Petition seeking a § 10(j) injunction pending the final Board decision. Respondents filed their Opposition on September 19, 2011, and Petitioner filed its Reply on October 3, 2011. A hearing was held on October 31, 2011.
The Board may petition a federal district court "for appropriate temporary relief or restraining order" pending the Board's resolution of an unfair labor practice charge, and the district court has "jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper." 29 U.S.C. § 160(j).
In determining a motion for temporary relief pursuant to § 10(j), the court must "consider the traditional equitable criteria used in deciding whether to grant a preliminary injunction  and employ the Supreme Court's recent interpretation of the threshold showing necessary for granting such an 'extraordinary remedy.'" McDermott v. Ampersand Publ'g, LLC, 593 F.3d 950, 957 (9th Cir. 2010) (quoting Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 374-76 (2008)); see also Munaf v. Geren, 553 U.S. 674, 689-90 (2008) ("A preliminary injunction is an extraordinary and drastic remedy [that] is never awarded as of right." (citation and quotation signals omitted)). "Thus, when a Regional Director seeks § 10(j) relief, he 'must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'" Frankl, 650 F.3d at 1355 (quoting Winter, 555 U.S. at 374); see also McDermott, 593 F.3d at 957. "'[S]erious questions going to the merits' and a balance of hardships that tips sharply towards the [Regional Director] can support issuance of a preliminary injunction, so long as the [Regional Director] also shows that there is a likelihood of irreparable harm and that the injunction is in the public interest.'" Frankl, 650 F.3d at 1355 (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (alterations in Frankl). The Regional Director must nonetheless "establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction." Id. (quoting Alliance for the Wild Rockies, 632 F.3d at 1131).
The court must consider these factors "through the prism of the underlying purpose of section 10(j), which is to protect the integrity of the collective bargaining process and to preserve the Board's remedial power." Id. (quoting Scott v. Stephen Dunn & Assocs., 241 F.3d 652, 661 (9th Cir. 2001)).
Petitioner asserts that the court should issue the requested injunction because he will likely succeed on the merits before the Board and the Ninth Circuit, the Union and Hotel employees will suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in favor of injunctive relief, and an injunction is in the public interest. The court considers the arguments on each of these inquiries.
A. Likelihood of Success on the Merits
"On a § 10(j) petition, likelihood of success is a function of the probability that the Board will issue an order determining that the unfair labor practices alleged by the Regional Director occurred and that [Ninth Circuit] would grant a petition enforcing that order, if such enforcement were sought." Frankl, 650 F.3d at 1355-56 (citing McDermott, 593 F.3d at 964). Likelihood of success is proven in § 10(j) cases where there is "some evidence to support the unfair labor practice charge together with an arguable legal theory." Id. at 1356 (quoting Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 460 (9th Cir. 1994) (en banc)); see also Stephen Dunn & Assocs., 241 F.3d at 664 (quotations omitted). Alternatively, "if the Director does not show that success is likely, and instead shows only that there are serious questions going to the merits, then he must show that the balance of hardships tilts sharply in his favor, as well as showing that there is irreparable harm and that the injunction is in the public interest." Frankl, 650 F.3d at 1356 (citing Alliance for the Wild Rockies, 632 F.3d at 1135).
Further, where the "Director seeks and receives approval from the NLRB before filing a § 10(j) petition,*fn3 the Director is owed special deference because 'likelihood of success is a function of the probability that the Board will issue an order determining that the unfair labor practices alleged by the Regional Director occurred.'" Small v. Avanti Health Sys., LLC, --- F.3d ----, 2011 WL 5120538, at *4 (9th Cir. Oct. 31, 2011) (quoting Frankl, 650 F.3d at 1355). In other words, "[t]hat the NLRB 'itself decided to file a Section 10(j) petition might signal its future decision on the merits, assuming the facts alleged in the petition withstand examination at trial.'" Id. (quoting McDermott, 594 F.3d at 964).*fn4
Petitioner asserts that Respondents have committed a number of NLRA violations;*fn5 the court addresses each in turn.
1. Discharge of Villanueva
Petitioner asserts that Respondents' termination of Villanueva violated sections 8(a)(1) and (3) of the Act, which, as relevant to this case, prohibit employers from interfering with, restraining or coercing employees in the exercise of their collective bargaining rights, or from discriminating in regard to tenure of employment to discourage membership in a labor organization, respectively. 29 U.S.C. §§ 158(a)(1) & (a)(3). The court first outlines the evidence regarding these allegations, and then determines whether Petitioner has established a likelihood of success in proving this claim.
Villanueva was employed at the Hotel from May 1993 to November 30, 2007, and again from April 12, 2010 to July 28, 2010. Joint Ex. Aat 102. Starting in 2003 until he was terminated in 2007, Villanueva served as a Housekeeper II working the day shift, which entailed delivering linens, answering guest calls, supporting the room attendant, and picking up trash at the end of the shift. Id. at 102-03, 106-07, 113, 185. Both before and after his 2007 termination, Villanueva was an active Union participant -- he served as one of the original members of the Union negotiating committee, attended negotiating sessions between the Hotel and Union, attended Union meetings, and spoke with Hotel employees about the Union. Id. at 111-12.
The March 29, 2010 Injunction found that Petitioner established a likelihood of success in proving that Respondents violated the Act by discharging Villanueva for his Union participation, and therefore ordered Respondents to reinstate him. Norelli, 699 F. Supp. 2d at 1198-99, 1207. As a result, on April 12, 2010, Respondents reinstated Villanueva as a Housekeeper II on the evening shift, with duties including cleaning and servicing rooms and delivering linen, towels, and other supplies to the housekeepers' supply closets. Joint Ex. A at 113. In comparison to his previous duties, Villanueva had not restocked the housekeepers' supply closets since 2003 and had never cleaned rooms. Id. at 113-14. As to training for his new duties, Villanueva shadowed a Houseman for one day, after which Villanueva worked alone. Id. at 116-17.
Shortly after his reinstatement, Villanueva was disciplined for his failure to follow various unwritten rules, which resulted in his termination on July 28, 2010.*fn6
i. Placement of cases of toilet paper/production log incident On May 20, 2010, Villanueva received a "written verbal warning" from Human Resource Manager Margaret Yang ("Yang") regarding his failure to properly store a case of toilet paper on April 27, 2010, and his failure to properly complete his production log during the first week of May 2010. Id. at 146-48.
As to the storage of the case of toilet paper, on April 27, 2010, Villanueva had placed the case on the top shelf of a housekeepers' closet while he was re-stocking. Id. at 127-28, 432. The top shelf is 60 and 5/8 inches from the floor, and the case of toilet paper weighs 37 pounds, is 23 inches wide, 17 inches high, and 18 inches deep. Id. at 53, 307. On April 28, 2010, Executive Housekeeper Christine Ko ("Ko"), Housekeeping Supervisor Bobby Hind ("Hind"), and Housekeeping Manager Sandy Lam ("Lam") notified Villanueva that when delivering toilet paper, he must not place it on the top shelf because it is not safe. Id. at 127-29, 432. Villanueva explained that he had done so because there was no room on the bottom shelf, and he did not want to leave the case on the floor next to the bottom shelf, which would block the housekeeper's cart. Id. at 129, 143, 335-36. During the April 28, 2010 meeting, Ko told Villanueva that in the future, if there is no room on the bottom shelf, he should make a notation on the supply form and not deliver the case of toilet paper. Id. at 131-32. Villanueva was not told that he would be disciplined and did not again place cases of toilet paper on the top shelf of the housekeepers' closets. Id. at 133, 135.
According to Villanueva, prior to the April 28, 2010 meeting with Ko, Lam, and Hind, he was not given any kind of written or verbal policy or procedure explaining where items should be stored in the housekeepers' closets; nor was he told that he should not place the box of toilet paper on the top shelf. Id. at 130, 135, 137. Further, both Villanueva and housekeeper Cherlene Saulin Wong testified that they recalled seeing a case of toilet paper on the top shelf in other housekeepers' closets on at least one occasion each. Id. at 135-36, 347-48. In comparison, Lam testified that Housemen are familiar with the practice of putting heavy items on the bottom shelf and are given instructions on how to stock the closets at the time of hiring. Id. at 907; see also id. at 847-48 (housekeeper Lolita Lucas testifying that the toilet paper is always placed on the floor of the closet); 1044 (Houseman Larry Edrada ("Edrada") testifying that he places the toilet paper on the floor of the closet for safety reasons).
As to Villanueva's failure to properly complete his production log,*fn7 during the first week of May 2010, Ko told Villanueva that instead of placing checkmarks next to the room numbers he had completed servicing on his production log, he should record the times he entered and exited a room. Id. at 144. Again, Villanueva had never been instructed to record the time he entered and exited a room in his production log and had no indication that he was going to be disciplined for his failure to properly complete the production log. Id. at 126-27, 143-44. After receiving these instructions regarding his production log from Ko, Villanueva complied. Id. at 541-42; Joint Ex. B at GC14.
Despite the fact that Villanueva had not violated any written rules and was not told of these "oral" rules before he was accused of violating them, on May 20, 2010, Villanueva received a written verbal*fn8 warning for "violation of safety rules" and "failure to observe operating policies, procedures, and/or standards." Joint Ex. B at GC3, p. 2. During this May 20, 2010 meeting, Union Business Agent Karl Lindo ("Lindo") asked why Hotel management had waited so long to issue the warning and the rationale behind the warning, especially given that Yang and Ko had already instructed Villanueva as to the proper placement of cases of toilet paper, and Villanueva had followed their instructions. Joint Ex. A at 432. Ko responded that management wanted to put the warning in writing. Id. at 433. When Lindo asked Yang and Ko whether the warning was Hotel general manager Robert Minicola's ("Minicola") decision -- who was fully aware of Villanueva's Union activity and has spearheaded Respondents' efforts to derail the Union --neither responded. Id.
ii. Unauthorized access into the housekeeping office After receiving the written verbal warning, Villanueva was involved in another incident regarding his access to the locked housekeeping office.
The housekeeping office stores various items such as employee contact information and personnel files, work schedules, assignment logs, and guests' lost and found items, and is locked after 8:00 p.m. Id. at 909-10. On July 5, 2010, while working his 3:00 p.m. to 11:00 p.m. shift, Villanueva responded to an employee call reporting that a guest had complained of a cockroach inside a hotel room. Id. at 157. Villanueva went to the security desk where the keys for the housekeeping office were kept, and asked Safety and Security Manager Eric Hangai ("Hangai") for the keys so that he could retrieve "disinfectant." Id. at 158-59. Although Villanueva did not say he needed to retrieve bug spray, Villanueva speaks English as a second language and has consistently referred to sprays as "disinfectant." Id. at 150, 159-60, 228; see also Joint Ex. B at GC14, p. 42 (reflecting that on July 3, 2010, Villanueva wrote in his production log, "spray disinfectant (Roaches)."); GC20, p. 3 (explaining to Minicola that he used "disinfectant" on roaches). Further, just two days prior on July 3, 2010, Villanueva had accessed the security office to obtain bug spray without incident. Joint Ex. A at 154-56; Joint Ex. B at GC14, p. 42. On that occasion, the Manager on Duty ("MOD") called Villanueva, notifying him about a cockroach in a guest room and told him to go to security to request access to the locked housekeeping office to obtain bug spray. Joint Ex. A at 155-56. Villanueva went to security officer Bartolome, who handed him the key, and Villanueva used the key to unlock the security office, get the spray, and used the spray on the cockroach. Id. Villanueva then logged the use of the spray on his July 3, 2010 production log. Id. at 156; Joint Ex. B at GC14, p. 42.
According to Hangai, although there is no written policy, he learned through his work as a security officer that entry into the housekeeping office after it was locked was allowed only by the MOD to access the lost and found. Joint Ex. Aat 644-45. Housekeeping manager Lam also testified that Villanueva was not authorized to access the locked housekeeping office, and housekeeper Roselind Mad ("Mad") and Edrada further explained that Housemen have no reason to enter the locked housekeeping office because all the housekeeping supplies (which apparently do not include bug spray) are kept in closets on each floor. Id. at 915, 1004, 1052-53. Because Villanueva referred to the bug spray as "disinfectant," however, Hangai testified that he assumed a chemical was needed for an emergency cleanup and did not contact the MOD before opening the housekeeping office. Id. at 640-41.
Hangai accompanied Villanueva to the housekeeping office, unlocked the office and let Villanueva inside, observing that Villanueva went directly to the cabinet and took a spray can. Id. at 647. Although Hangai looked at the spray can before allowing Villanueva to leave with it, he testified that he did not notice that it was an insecticide*fn9 and did not ask Villanueva what the spray was for. Id. at 648. After giving the spray can back to Villanueva, Hangai asked if Villanueva needed to log that he was taking the spray can; Villanueva responded that there was no log for the spray can. Id. at 161, 649. Hangai therefore made a notation in the security log regarding the entry into the housekeeping office. Id. at 661-62; see also Joint Ex. B at GC15, p. 3.
Villanueva testified that after entering the guest room and spraying the cockroach, he placed the spray can in his black housekeeping bag along with his keys and radio at the end of his shift, and dropped the bag off at the housekeeping office before clocking out, as he does at the end of every shift. Joint Ex. Aat 266-67, 286-87. Villanueva testified that he placed the spray can in the housekeeping bag because he felt Ko was watching him and thought that the bag was the safest place to leave the spray. Id. at 409-10.
The next day, on July 6, 2010, Hangai informed Ko that Villanueva had entered the office and removed a spray can of "565 Plus," and that Hangai had secured the office after Villanueva left. Id. at 1173. Ko said she was not aware of Villanueva's entry and would look into it. Id.
On July 7, 2010, Ko notified Hangai that the spray can was missing from the housekeeping office. Id. at 1173-74. She also notified Hangai, after calling the manufacturer Orkin, that the "disinfectant" was commercial-grade insecticide, and that an employee had to be trained to use it, which Villanueva was not. Id. at 1175-77.
iii. The July 12, 2010 suspension and the July 28, 2010 termination
On July 12, 2010, Ko notified Villanueva that he was being suspended without pay, pending an investigation. Although Villanueva asked Ko why he was being suspended, Ko did not give Villanueva any specifics. Id. at 149.
On July 20, 2010, the Union and Hotel held an investigatory meeting, which was attended by Villanueva, Union representatives Brian Tanaka ("Tanaka") and Eadie Omonaka ("Omonaka"), Minicola, Yang, Ko, and note keeper Lan Yao. Id. at 1278-79; see also Joint Ex. C at Resp't Ex. 15. The meeting started by Tanaka asking Minicola to explain the subject matter of the Hotel's investigation of Villanueva, Joint Ex. B at GC20, p. 1; Joint Ex. C at Resp't Ex. 15, p. 1, to which Minicola responded that Villanueva was suspended pending investigation regarding an infraction that occurred on July 5, 2010 and that they would not discuss the nature of the infractions at this point. Joint Ex. B at GC20, p. 1.
Minicola proceeded to ask Villanueva a series of questions including whether anything unusual happened on his shift on July 5, 2010, whether Villanueva asked security for the key to the housekeeping office, and how many times he had accessed the housekeeping office since starting work on the night shift. Joint Ex. A at 1281-83; Joint Ex. B at GC20, pp. 1-2; Joint Ex. C at Resp't Ex. 15, pp. 1-3. Villanueva explained that he obtained access to the housekeeping office to spray a cockroach with "disinfectant" in a guest room, that the MOD, Mad, had instructed him to spray cockroaches on other occasions, and that he had previously gained access to the housekeeping office. Joint Ex. B at GC20, pp. 1-3. Indeed, had Minicola reviewed Villanueva's production log, he would have seen that Villanueva had sprayed "disinfectant" and/or serviced rooms for insects on at least five occasions between April 21 and July 5, 2010. Joint Ex. B at GC14, p. 12 ("spray tub for ants"), 25 ("spray disinfectant"), 32 ("cacaroach [sic]"), 42 ("spray disinfectant (Roaches)"), 45 ("spray dis/bugs"). Further, although not asked at this meeting, Villanueva testified before ALJ McCarrick that he was unaware of any requirement that he receive authorization to gain access to the housekeeping office and that he had not dealt with a locked housekeeping office during his previous tenure working the day shift. Joint Ex. A at 172-73.
Minicola next asked Ko about the normal procedure for employees to access the locked housekeeping office, and she answered that employees are supposed to see the MOD and/or call a manager, and that requests for access occur infrequently and only for emergencies. Joint Ex. B at GC20, p. 3. Ko further explained that Villanueva did not call a MOD on July 5 or leave a note, and that Villanueva was not trained to use the bug spray. Id. Minicola then brought Hangai into the meeting and asked him questions about what happened when Villanueva accessed the housekeeping office and whether Hangai thought the events of July 5, 2010 were unusual. Id. at p. 4. Hangai responded that he thought it was unusual that Villanueva requested access to the locked housekeeping office because usually only a supervisor or manager can make this request. Id. at 5. Omonaka also asked Hangai why he did not follow the purported proper procedure regarding access to the housekeeping office, and Hangai provided no response. Id. at p. 4; Joint Ex. A at 785-86.
At the conclusion of the meeting, Minicola stated that Villanueva was not logging what he was taking, that Villanueva should not be accessing the office, and that Villanueva may have stolen the can of bug spray. Joint Ex. B at GC20, p. 6. Minicola asserted that he was particularly concerned about Villanueva's use of the chemical bug spray and how he got access to it. Id. Minicola concluded the meeting by notifying Tanaka that he was unsure of what would happen and that the Hotel would make a decision on the discipline and notify the Union. Id.
After the July 20, 2010 meeting, Minicola received a written incident report and statement prepared by Hangai, and a statement from Yang that the spray can was not found in the housekeeping bag. Joint Ex. A at 1007-08, 1300.Minicola also received a written statement from Mad, asserting that she provided Villanueva deodorizer, not bug spray, on June 17, 2010. Specifically, Mad's statement provided:
I (Rose) called Rhandy to spray room w/ deodorzer [sic]. He ask where can I (Rhandy) get the spray[.] I (Rose) said maids closet. I (Rose) never give him 565 Plus to spray room.
Joint Ex. C at Resp't Ex. 26. After collecting this additional information, Minicola made the final decision to terminate Villanueva and notified Villanueva and Lindo of this decision at a July 28, 2010 meeting. Joint Ex. A at 1299-1302; Joint Ex. B at GC-4, p. 1.
Villanueva's termination document states that he was terminated based on his violation of the following House Rules:
#1 - Falsification or giving misleading information on employment application or falsification of Company records or reports. . . . #2 - Theft or misappropriation of property (such as food, beverage or keys) . . . . #12 - Loitering or straying into areas not designed as work areas, or where your duties do not take you. #30 - Not reporting damaged or lost items belonging to the Company, guests, or outside agencies properties; refusing to cooperate with the Company in obtaining true and factual statements; dishonesty in any form. #42 - Not complying with your respective Departmental Rules and Procedures.
Joint Ex. B at GC 4, p. 1.
Although Minicola did not provide any explanation at the July 28, 2010 termination meeting as to how Villanueva violated these rules, Minicola testified before ALJ McCarrick that he believed Villanueva had violated House Rule #1 for falsifying statements by saying that (1) he had previously gotten the bug spray from Mad; (2) he needed "disinfectant" rather than bug spray; (3) Villanueva uses the bug spray all the time; (4) he left the bug spray in the black housekeeping bag; and (5) he did not need to leave a note about what he took from the housekeeping office. Joint Ex. Aat 70-72. Minicola further explained that Villanueva violated House Rule #2 when he failed to return the bug spray, and violated House Rule #12 when Villanueva accessed the housekeeping office after hours. Id. at 72-73. Minicola claimed that Villanueva violated House Rule #30 when he was dishonest about his statements to Hangai and other statements he made during the investigation, characterizing Villanueva's statements as "vague, evasive, and unresponsive." Id. at 73. Lastly, Minicola testified that Villanueva violated House Rule #42 when he failed to get proper authorization to access the housekeeping office, removed the bug spray from the office without logging it, and sprayed an occupied guest room. Id. at 73-74; 1325-26.
Minicola admitted that he was previously unaware of any procedures for accessing the housekeeping office, and was also unaware if anyone had informed Villanueva regarding the access procedure. Id. at 977, 1353-54. Further, although Hangai testified that he believed Ko claimed that some individuals were trained to use the 565 Plus (the specific bug spray Villanueva used), see id. at 677, Respondents did not present Ko to testify before ALJ McCarrick, none of Respondents' witnesses has identified any specific individual trained to use the bug spray, and there is no evidence that anyone ever informed Villanueva that use of the bug spray required training. Id. at 677-78, 979-80, 1357-58. Finally, Minicola never reviewed Villanueva's production logs to determine whether they substantiated Villanueva's assertions that he had used bug spray on other occasions. Id. at 1364-65.
The NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title," 29 U.S.C. § 158(a)(1), or "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . ." Id. § 158(a)(3). As the court previously explained in its March 29, 2010 Injunction, Norelli, 699 F. Supp. 2d at 1197-98,to determine the employer's motivation in discharging an employee, "the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's action." In re Caruso Elec. Corp., 332 NLRB 519, 522 (2000) (discussing Wright Line, 251 NLRB 1083 (1980)). "The elements commonly required to support such a showing [that protected conduct was a motivating factor] are union or protected activity by the employee, employer knowledge of that activity, and union animus on the part of the employer." Intermet Stevensville, 350 NLRB 1270, 1274 (2007). If this initial showing is made, "the burden then shifts to the employer to prove, as an affirmative defense, that it would have taken the same action even in the absence of the employee's union activity." Id. (citing Manno Elec., 321 NLRB 278, 280 n.12 (1996)).
Petitioner has made a prima facie showing that the Board will likely find, and the Ninth Circuit will affirm, that Villanueva's Union participation was a motivating factor in his termination. First, Villanueva was an active Union participant, promoting the Union even after he was terminated the first time in November 2007, and continuing his activities after he was reinstated in April 2010. Joint Ex. A at 111-12; see also Norelli, 699 F. Supp. 2d at 1198 (describing Villanueva's participation on the negotiating committee and other Union activities); HTH Corp., 2009 WL 3147894, at *27-28 (NLRB Sept. 30, 2009) (acknowledging that Villanueva served continuously on the Union's negotiating committee from 2005 to 2007). Second, as outlined and specifically found in previous orders, Respondents were aware of Villanueva's Union activity and harbored great animus toward the Union, even terminating Villanueva once for his Union activity. See HTH, 2009 WL 3147894 (finding that Respondents failed to rebut Petitioner's "prima facie case, fraught with animus"), affirmed by HTH Corp., 2011 WL 2414720, at *2; see also supra (discussing the various Board decisions finding violations of the NLRA by Respondents).
Thus, Respondents have the burden to prove that they would have terminated Villanueva even in the absence of his Union activity. Respondents have not carried this burden. Rather, the evidence presented suggests that Respondents terminated Villanueva based on rules (to the extent they actually existed) that were neither well-established nor known by Villanueva.
Indeed, as early as Villanueva's May 20, 2010 discipline for failing to properly stock toilet paper and fill out his production logs, it appears that Respondents were looking for reasons to discipline Villanueva and contoured the Hotel rules to suit their needs. Specifically, as to Villanueva's stocking of the toilet paper on the top shelf of the housekeeping closet, Respondents provided Villanueva only one day of training when he began as Housekeeper II on April 12, 2010, Villanueva had last stocked the closets in 2003, and Villanueva was never told before the April 28, 2010 meeting that he should not place the toilet paper on the top shelf. Simply put, the evidence supports a finding that Villanueva was not told -- and did not know -- that he should not place the toilet paper on the top shelf, making his May 20, 2010 discipline unwarranted.*fn10
In opposition, Respondents assert that this discipline was appropriate in light of the safety concern created by placing the toilet paper on the top shelf -- Hotel employees testified that toilet paper should always be stored on the bottom for safety concerns, and Villanueva even admitted that in retrospect, placing the toilet paper on the top shelf was not safe. Joint Ex. A at 335. This testimony does not change, however, that there were no written policies stating how to properly stock a housekeeping supply closet, and toilet paper had previously been placed on the top shelf. Further, it is not a matter of common sense (as Respondents argue) that the toilet paper should be placed on the bottom shelf --the box weighed only 37 pounds and was 23 inches wide, 17 inches, and 18 inches deep, and any housekeepers that felt unsafe retrieving the toilet paper could have called a Houseman for assistance. See Joint Ex. A at 885-86. In sum, although it was perfectly appropriate for Respondents to give Villanueva directions on how to stock the shelves, the facts presented provided Respondents absolutely no reason that would support a written disciplinary measure where Villanueva was not previously told the rules. Accordingly, this incident evinces Respondents' animus towards Villanueva.
As to Villanueva's failure to record on his log the times he started and finished each guest room that he cleaned, Respondents do not even offer an explanation for why this incident warranted a verbal written warning. Rather, the evidence presented establishes that Villanueva was not previously told to indicate the times on his log, and that others had similarly failed to denote the times on their cards and received no discipline whatsoever. See Joint Ex. B at GC21(A), A1-2, A30-31; GC21(B), B4-47; GC21(C), C5; GC21(D), D1-6. Accordingly, this alleged violation of Hotel rules, like the toilet paper incident, appears to be due to Respondents' animus towards the Union such that Respondents would not have given Villanueva the written verbal warning but for his Union activity.
As to Villanueva's access to the housekeeping office and use of the bug spray, there was no question as to why Villanueva sought access to the housekeeper's office (to retrieve the bug spray), and no question as to what Villanueva took (Hangai visually confirmed that Villanueva had taken the spray can and marked this activity on his security log). Villanueva's action of entering the housekeeping office can hardly be viewed as a violation of Hotel rules given that (1) Hangai, who purported to know the Hotel policy against access, allowed Villanueva access; (2) Respondents presented no evidence of any written policy regarding access to the housekeeping office; and (3) there is no evidence suggesting that Villanueva, who had previously worked the day shift when the office was open, knew of any Hotel policy that Housemen were not allowed access to the housekeeping office after it closes. Further, there is ample evidence that despite any assertion by Respondents of a policy against spraying chemicals in occupied guest rooms, see Joint Ex. ...