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Joseph F. Frankl, Regional Director of Region 20 of the National v. Hth Corporation

November 29, 2011

JOSEPH F. FRANKL, REGIONAL DIRECTOR OF REGION 20 OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD,
PETITIONER,
v.
HTH CORPORATION, PACIFIC BEACH CORPORATION AND KOA ) MANAGEMENT, LLC, A SINGLE EMPLOYER, D/B/A PACIFIC BEACH HOTEL, RESPONDENTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S ) AMENDED MOTION FOR ADJUDICATION AND ORDER IN ) CIVIL CONTEMPT AND FOR COMPENSATORY RELIEF

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S AMENDED MOTION FOR ADJUDICATION AND ORDER IN CIVIL CONTEMPT AND FOR COMPENSATORY RELIEF

I. INTRODUCTION

For nearly a decade, Waikiki's Pacific Beach Hotel (the "Hotel") has repeatedly ignored its responsibilities to comply with the National Labor Relations Act ("NLRA" or the "Act"). Petitioner Joseph F. Frankl*fn1 ("Petitioner"), Director of Region 20 of the National Labor Relations Board (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 Act -- for meddling with, failing to recognize, and refusing to negotiate with the International Longshore and Warehouse Union, Local 142, AFL-CIO (the "Union"). Despite numerous orders finding that the Hotel has violated the Act, the National Labor Relations Board (the "Board") asserts that Respondents continue to flout their duties, including by ignoring this court's March 29, 2010 Injunction requiring them to comply with the Act. The Board argues, and the court agrees, that sanctions are appropriate.

The March 29, 2010 Injunction stemmed from Petitioner's allegations that Respondents had committed various NLRA violations, which was pending before the Board when Petitioner 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)"). On March 29, 2010, the court found that the Board would likely determine, and be affirmed by the Ninth Circuit, that Respondents engaged in a number of violations of the NLRA and that injunctive relief was necessary to prevent irreparable harm to Respondents' employees and the Union (the "March 29, 2010 Injunction"). The March 29, 2010 Injunction therefore required Respondents to, among other things, recognize the Union, bargain in good faith with the Union, reinstate several employees, and rescind unilateral changes made to the terms and conditions of employment. See Norelli v. HTH Corp., 699 F. Supp. 2d 1176 (D. Haw. 2010). On June 14, 2011, the Board largely affirmed the ALJ Decision, see HTH Corp., 356 NLRB No. 182, 2011 WL 2414720 (June 14, 2011), and on July 13, 2011, Ninth Circuit affirmed this court's § 10(j) injunction. Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011).

According to Petitioner, Respondents, along with Robert Minicola ("Minicola"), HTH's Regional Vice President and the Hotel's acting general manager and human resources manager, have violated numerous provisions of the court's March 29, 2010 Injunction. Although coercive contempt is not available in light of the Board's June 14, 2011 Decision, Petitioner argues that compensatory contempt sanctions are appropriate. Based on the following, the court GRANTS in part and DENIES in part Petitioner's Motion.

II. BACKGROUND*fn2

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 Administrative Law Judge ("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., 2009 WL 3147894 (NLRB Sept. 30, 2009). While waiting for the Board decision, Petitioner filed a Petition for § 10(j) relief, which resulted in the March 29, 2010 Injunction. See Norelli, 699 F. Supp. 2d at 1176.

The March 29, 2010 Injunction, attached as an Appendix to this Order, required Respondents to cease and desist from (1) withdrawing recognition of the Union; (2) refusing to bargain in good faith with the Union with respect to rates of pay, hours of employment and other terms and conditions for bargaining unit employees; (3) discharging employees in order to discourage Union activities and membership; (4) unilaterally changing the terms and conditions of employment of bargaining unit employees without first giving notice to, and bargaining with, the Union; and (5) in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the NLRA. The March 29, 2010 Injunction further required Respondents to, among other things, (1) recognize and bargain in good faith with the Union with respect to rates of pay, hours of work and other terms and conditions of employment covering bargaining unit employees; (2) resume contract negotiations and honor all tentative agreements entered into from the point that negotiations were left off on November 30, 2007; (3) reinstate several employees, including, in particular, Rhandy Villanueva; and (4) rescind, at the Union's request, any or all of the unilateral changes to bargaining unit employees' terms and conditions of employment as they existed prior to December 1, 2007.

After the March 29, 2010 Injunction, Petitioner filed a new Complaint against Respondents with the NLRB, and also sought in this court contempt sanctions (the subject of this order) and another § 10(j) injunction (the subject of a separate order, see Frankl v. HTH Corp., Civ. No. 11-00451 JMS/RLP). Given the substantial overlap in factual issues between the contempt and § 10(j) issues, the parties agreed to delay full briefing on the contempt motion until trial transcripts in the NLRB action were completed.

In the meantime, however, on June 14, 2011, the Board largely affirmed the ALJ Decision, see HTH Corp., 356 NLRB No. 182, which resulted in Petitioner withdrawing its original Motion for Contempt filed in this action -- the request for coercive sanctions was mooted by the Board decision. On July 13, 2011, the Ninth Circuit affirmed the court's § 10(j) injunction. Frankl, 650 F.3d at 1334.

On July 8, 2011, Petitioner filed his Amended Motion for Adjudication and Order in Civil Contempt and for Compensatory Relief. On September 13, 2011, ALJ John J. McCarrick, after hearing sixteen days of testimony, issued a Decision finding that Respondents committed various violations of the NLRA (the same subject matter as the contempt issues in this action). Respondents filed their Opposition to the Amended Motion for Contempt on September 19, 2011, and Petitioner filed his Reply on October 3, 2011. A hearing was held on October 31, 2011.

III. STANDARD OF REVIEW

Civil contempt "consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply." Reno Air Racing Ass'n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006) (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)). Although the contempt "need not be willful, [] a person should not be held in contempt if his action appears to be based on a good faith and reasonable interpretation of the court's order." Id. (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d at 695); see also Boink Systems, Inc. v. Las Vegas Sands Corp., 2011 WL 3419438, at *3 (D. Nev. Aug. 3, 2011) ("A few technical violations do not vitiate substantial compliance if a party has made reasonable efforts to comply." (citations omitted)). Further, substantial compliance with the court order is a defense to civil contempt. In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d at 695.

The party claiming civil contempt must demonstrate a violation of the court's order by clear and convincing evidence. Id. Accordingly, the moving party must establish that "(1) that [the alleged contemnor] violated the court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence." United States v. Bright, 596 F.3d 683, 694 (9th Cir. 2010) (quoting Labor/Cmty. Strategy Ctr. v. L.A. County Metro. Trans. Auth., 564 F.3d 1115, 1123 (9th Cir. 2009)); see also F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) ("The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court.").

If the moving party meets this initial four-part test, the burden then shifts to the alleged contemnor to demonstrate why it was unable to comply. Affordable Media, LLC, 179 F.3d at 1239; Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992). In other words, the accused party must "show [that it] took every reasonable step to comply." Stone, 968 F.2d at 856 n.9 (citation omitted). To assess whether an alleged contemnor has taken "every reasonable step" to comply with the terms of a court order, the court can consider a variety of factors, including, for example, whether the contemnor has a history of noncompliance, and whether the contemnor failed to comply despite the pendency of a contempt motion. See Stone, 968 F.2d at 857.

"A court has wide latitude in determining whether there has been contemptuous defiance of its order," Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir. 1984) (citations omitted); see also Stone, 968 F.2d at 856, and "retains discretion to establish appropriate sanctions." Bright, 596 F.3d at 696. Sanctions for civil contempt may be imposed to coerce compliance with a court order and/or to compensate the injured party for losses sustained. Koninklijke Philips Elecs., N.V. v. KXD Tech., Inc., 539 F.3d 1039, 1044 (9th Cir. 2008); Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992) (citing United States v. United Mine Workers of Am., 330 U.S. 258, 303-04 (1947)). "Unlike the punitive nature of criminal sanctions, civil sanctions are wholly remedial." Whittaker Corp., 953 F.2d at 517 (citation omitted).

IV. DISCUSSION

The March 29, 2010 Injunction required Respondents to refrain from engaging in certain practices that violated the Act (such as refusing to bargain in good faith with the Union, discharging employees in order to discourage Union activities and membership, or unilaterally changing the terms and conditions of employment of bargaining unit employees), as well as to take certain affirmative steps to comply with the Act (such as bargain in good faith with the Union, resume contract negotiations and honor all tentative agreements, and rescind unilateral changes). Petitioner argues that after the March 29, 2010 Injunction, Respondents committed numerous violations of the Act, with these same alleged violations constituting violations of the March 29, 2010 Injunction. In a separate action, Frankl v. HTH Corp. et al., Civ. No. 11-00451 JMS/RLP, Petitioner sought a § 10(j) injunction for these most recent violations of the Act, which this court granted on November 21, 2011 (the "November 21, 2011 Injunction"). Because a violation of the Act may also constitute a violation of the March 29, 2010 Injunction, where appropriate, the court draws heavily from the November 21, 2011 Injunction. The court first determines that Respondents should be held in contempt and then turns to the issue of appropriate sanctions.

A. Whether Petitioner Has Established That Respondents Have Violated the March 29, 2010 Injunction

The court addresses each of Respondents' alleged violations of the Act in turn.

1. Discipline, Suspension, and Termination of Villanueva

Petitioner argues that Respondents' discipline, suspension, and termination of Villanueva violated several provisions of the March 29, 2010 Injunction.

a. Facts

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.

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,*fn3 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*fn4 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 Minicola's 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*fn5 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:

On 6/17/10 Room 2151

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 ...


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