Stanford Hotel

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344 NLRB No. 69 558 Stanford New York, LLC d/b/a Stanford Hotel and Joong Hyun Park. Case 2–CA–35910 April 29, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On October 7, 2004, Administrative Law Judge Steven Davis issued the attached decision. The General Counsel and the Respondent filed exceptions and supporting briefs, and the General Counsel filed an answering 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, find- ings,1 and conclusions and to adopt the recommended Order as modified.2 Respondent employed Joong Hyun Park as a mainte- nance engineer from 1998 until his discharge on October 31, 2003.3 In September 1999, the Board conducted an election in a unit that included all of the Respondent’s service and maintenance employees. Park was an eligible voter in the election and appeared on the Excelsior list. The parties executed an initial collective-bargaining agreement on October 28, to be effective November 1. In the morning of October 31, General Manager Kevin Kim asked Park why he wanted to become a member of the Union, advised him not to do so, and told Park that the union contract did not cover supervisors. Kim told Park that there would be a meeting later that day with Union Agent Leo Lanci to determine whether Park would be included in the unit. Kim contended that Park was a supervisor and thus not eligible for union member- ship. Park maintained that he was not a supervisor and wanted union representation. Kim angrily directed Park to tell Lanci that he was a supervisor. That afternoon, Lanci and Park met in the employee lunchroom located in the basement of the hotel. Kim entered the room and sat next to Lanci. No other em- ployees were present and Park closed the lunchroom door to further ensure privacy. During the ensuing dis- 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. 2 Because many of the Respondent’s employees speak mainly Span- ish or Korean, we shall modify the recommended Order to provide that the Respondent post the attached notice to employees in Spanish, Ko- rean, and English. 3 All dates are in 2003 unless otherwise indicated. cussion, Kim continued to insist that Park was a supervi- sor. Kim threatened Park in Korean that if he did not tell Lanci that he was a supervisor, he would be fired. Park called Kim a liar and a bitch and pointed his finger at him. Kim rose to leave, stating that he could not continue with the meeting. Park loudly called Kim a “f—ing son of a bitch” in English. An employee who had entered the breakroom overheard this remark. Kim again threatened Park with discharge, stating in Korean that he could fire Park at any time because he was a supervisor. We find, in agreement with the judge, that Park en- gaged in protected concerted activity when he met with Union Agent Lanci and Kim and asserted his right to union representation and inclusion in the collective- bargaining unit.4 We also recognize, hoTwever, that the “fact that an activity is concerted . . . does not necessarily mean that an employee can engage in the activity with impunity.” NLRB v. City Disposal Systems, 465 U.S. 822, 837 (1984). When an employee is discharged for conduct that is part of the res gestae of protected con- certed activities, the pertinent question is whether the conduct is sufficiently egregious to remove it from the protection of the Act. Aluminum Co. of America, 338 NLRB 21 (2002). TIn making this determination, the Board examines the following factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. Atlantic Steel Co., 245 NLRB 814, 816 (1979). Addressing the first factor, we find that the location of Park’s conduct weighs in favor of finding that Park re- tained the protection of the Act. Park’s outburst occurred away from his normal working area in an employee lunchroom in the basement of the building. When the meeting began, no other employees were present, and when Kim entered the room, Park closed the door to maintain privacy. The relatively secluded room and Park’s efforts to maintain the privacy of the conversation minimized the potential that Park’s outburst would im- pair Kim’s ability to maintain discipline in the work- place. We recognize that, despite Park’s efforts, one em- ployee entered the room towards the end of the conversa- tion and overheard Park’s intemperate remarks to Kim. However, we find that, on balance, this factor of location weighs in favor of protection even though the outburst inadvertently was overheard by one employee. 4 We adopt the judge’s finding that Park was an employee and not a statutory supervisor. We therefore find it unnecessary to rely on the judge’s finding that even if Park were found to be a supervisor, and thus properly not included in the unit, his efforts to join the Union would still be protected. STANFORD HOTEL 559 With regard to the second factor, the subject matter of Park’s remarks also weighs in favor of protection. Park’s outburst concerned his desire to be included in the col- lective-bargaining unit and his disagreement with Kim over his eligibility. In addition, Park’s belief that he was not a supervisor was reasonable as evidenced by the fact that he was included on the Excelsior list and he voted in the election without challenge.5 Because Park’s conduct occurred in the context of his attempted assertion of a fundamental right under the Act, we find that this factor weighs strongly in favor of a finding that Park’s remarks were protected. As to the third factor, Park’s outburst was profane and offensive, which weighs against the remarks retaining the protection of the Act. Park cursed Kim, calling him a “f—ing son of a bitch” while angrily pointing his finger at him. The record does not show that employees regu- larly used foul language at the hotel or in conversations with General Manager Kim. Nor is there credited evi- dence that Kim used profanity during the meeting.6 In- deed, both Park and Kim agreed that cursing is inappro- priate in the hotel. We therefore find that this factor weighs against a finding that Park’s outburst was pro- tected. As for the fourth factor, Park’s outburst was a direct and temporally immediate response to Kim’s repeated insistence that Park declare himself ineligible for union representation, accompanied by threats of discharge.7 While Kim may not have used profanity, he did unlaw- fully threaten to discharge Park, and that threat triggered Park’s response. Board precedent establishes that an em- 5 We find unpersuasive the Respondent’s assertion in its brief that Park’s inclusion on the Excelsior list should not be considered proba- tive of his status because it “may only reflect the common attempt of an employer trying to improve its odds of victory in a representation elec- tion.” 6 Park testified that Kim did use profanity, but the judge did not credit that testimony. 7 In finding that Park’s conduct did not lose the protection of the Act, the judge relied on Felix Industries, 331 NLRB 144 (2000). The Court of Appeals for the District of Columbia Circuit denied enforce- ment of the Board’s Order in Felix Industries and remanded the case to the Board. 251 F.3d 1051 (D.C. Cir. 2001). On remand, the Board found that employee Yonta’s use of profanity during a grievance- related telephone conversation with a supervisor did not outweigh the other factors favoring the protections accorded Yonta under the Act. 339 NLRB 195 (2003), enfd. per curiam (D.C. Cir. 2004) (No. 03– 1221, 03–1239) (unpublished). Chairman Battista dissented because, in his view, Yonta’s outburst constituted outrageous conduct and out- weighed the other Atlantic Steel factors, thereby causing Yonta to lose the Act’s protection. Id. at 197. While Member Schaumber did not participate in Felix Industries, he agrees with Chairman Battista’s dis- sent. In any event, Felix Industries is distinguishable. Here, Park’s conduct occurred in a face-to-face meeting with management, with a union agent present, regarding a fundamental right under the Act, and in direct response to Kim’s unlawful threats of discharge. ployer generally may not provoke an employee through unlawful conduct to a point where the employee commits an act of insubordination and then rely on that insubordi- nation to discipline the employee. Vought Corp., 273 NLRB 1290, 1295 fn. 31 (1984), enfd. 788 F.2d 1378 (8th Cir. 1986).8 Because Kim provoked Park’s outburst by his unlawful conduct, this factor weighs in favor of protection. We do not condone insubordination and, in other cir- cumstances, Park’s outburst might be unprotected. In the circumstance of this case, however, we find that Park was engaged in protected concerted activity in expressing his desire to be included in the collective bargaining unit, and he did not lose the protection of the Act because of his intemperate response while protesting Kim’s unlaw- ful conduct. Thus, the factors of place, subject matter, and provocation favor protection, while only the factor of the nature of Park’s conduct does not. Accordingly, we find that Park did not lose the protection of the Act by his conduct.9 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Stanford New York, LLC d/b/a Stanford Hotel, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(e). “(e) Within 14 days after service by the Region, post at its facility in New York, New York, copies of the at- tached notice marked “Appendix.”8 Copies of the No- tice, on forms provided by the Regional Director for Re- gion 2, after being signed by the Respondent’s author- 8 TChairman Battista does not agree with this proposition as stated. In his view, there can be circumstances where the employer’s unlawful conduct is relatively minor, and the employee’s responsive conduct is egregious. In such circumstances, the response may be unprotected.T 9 In finding that Park’s remarks were not so inflammatory as to lose the protection of the Act, the judge relied on Winston-Salem Journal, 341 NLRB 124 (2004). There, the Board found that an employee did not lose the protection of the Act when he loudly called his supervisor a “bastard red-neck son-of-a-bitch” about an hour after an initial conver- sation in which he accused his supervisor of being racist and showing favoritism towards another member of the work crew. The Fourth Cir- cuit, however, recently denied enforcement of the Board’s order in that case. Media General Operations, Inc. v. NLRB, 394 F.3d. 207 (4th Cir. 2005). In concluding that the employee’s outburst was unprotected, the court held that it was merely an expression of personal animosity to- wards the supervisor, and noted that it was not provoked by any action on the supervisor’s part. Here, Park was engaged in protected activity when he met with Union agent Lanci and sought inclusion in the collec- tive bargaining unit. Furthermore, Park’s outburst was an immediate, spontaneous response to Kim’s threat to discharge Park for attempting to become a member of the Union. The factors of concern to the Fourth Circuit are not present here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560 ized representative, shall be posted by Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. This notice shall be posted in Korean, Spanish, and English. Reasonable steps shall be taken by 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, Respondent has gone out of business or closed the facil- ity involved in these proceedings, Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at any time since October 31, 2003.” Gregory B. Davis, Esq., for the General Counsel. Howard R. Flaxman, Esq. (Fox Rothschild LLP), of Philadel- phia, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Based upon a charge and a first amended charge filed on November 3, 2003, and February 23, 2004, respectively, by Joong Hyun Park, An Individual, a complaint was issued on March 31, 2004 against Stanford New York, LLC d/b/a Stanford Hotel (Respondent). The complaint alleges that following employee Park’s asser- tion of his right to be included in the collective-bargaining unit of the Respondent’s employees represented by Local 758, Hotel & Allied Services Union, SEIU, AFL–CIO (Union), the Re- spondent (a) threatened to discharge Park if he did not agree to be excluded from the collective-bargaining unit and (b) dis- charged Park.1 The Respondent denied the material allegations of the com- plaint and asserted that Park is a statutory supervisor who is not entitled to the protection of the Act. On June 22, 2004, a hear- ing was held before me in New York, New York.2 P On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, a New York corporation, having its office and principal place of business at 43 West 32PndP Street, New York, New York, has been engaged in the business of operating a hotel, and providing lodging and related service to the public. Annually, the Respondent derives gross revenues in excess of 1 The complaint also alleged that the Respondent promised Park more favorable working conditions if he would agree to be excluded from the bargaining unit. However, in his post-trial brief, counsel for the General Counsel moved to withdraw that allegation, and I hereby grant that motion. 2 The Respondent’s unopposed post-hearing motion to correct the transcript is hereby granted, and is received in evidence as Respon- dent’s Exhibit 6. $500,000, and purchases and receives at its facility in New York City, goods and materials valued in excess of $5,000 directly from suppliers located outside New York State. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Park’s work duties The Respondent hotel is a 12-story facility containing 121 guest rooms, a lobby, basement, restaurant, bakery, and bar. It employs 37 employees in various departments, the majority being in housekeeping, and two employees in the maintenance department. Park became employed in1998 and worked in the mainte- nance department. He worked Monday through Saturday, from 8:30 a.m. to 5:30 p.m. He was called an engineer. His duties included repairing toilets, bed frames, telephone wires, window curtain rods, pictures, shower heads, soap dishes, heating cov- ers, video machines, ice machines, chairs, air conditioner con- trols, television remote control devices, and chains on doors. He also replaced light bulbs, unclogged leaks in pipes and drains, changed lock cylinders and made keys, painted, did demolition work, checked the batteries in exit lights, fixed vac- uums, changed toilet parts, changed closet guides, checked windows, took out the garbage, cleaned wallpaper, replaced hair dryers, checked lamps, opened safety deposit boxes, changed a telephone, checked noise in heaters, changed a radio alarm, and changed an outlet. Park orders supplies for the main- tenance department from vendors, but he first must obtain au- thorization from manager Kim to do so. Park received his work assignments by wireless radio from the front desk reception personnel, the office, the reservation department, and from the supervisor of housekeeping. He also reviewed the logbook for problems which occurred the evening before. Park was provided with a cell phone on which he was called after hours to return to the hotel in an emergency, such as a leaking pipe. Only one other person, general manager Kinan (Kevin) Kim had a cell phone.3 During the period at issue here, October, 2003, two mainte- nance employees were employed, Park, and Myong Roi Choi.4 Park recommended his hire as follows: Owner Joong Gab Kwon asked Park to recommend someone for the maintenance department. Park recommended Choi, telling Kwon that he was reliable. An advertisement was placed in a Korean newspaper and other applicants were interviewed, apparently by Kwon, but Choi was hired. Park was asked by Kwon whether he knew any of the other applicants. Park denied knowing them. Choi was the only person Park recommended. Choi worked Monday through Saturday, from 9:30 a.m. to 6:30 p.m. Manager Kim stated that inasmuch as the hotel was 80 years old, two maintenance employees were needed. The daily main- 3 All references hereafter to Kim will be to general manager Kinan Kim unless otherwise stated. 4 Choi replaced Kun Jea Moon. STANFORD HOTEL 561 tenance repair reports completed by Park and Choi demonstrate that they both did similar work, and sometimes worked together on the projects set forth above. Park signed a section of the report bearing the notation “approved by maintenance.” Prior to October, 2002, the form said only “maintenance.” However, after that time, on the order of owner Kwon, the form was changed to read “chief maintenance.” Regardless of the change on the form, Park’s job duties and wages remained the same. Park was more skilled in pipe repair and electrical work than Choi, but Choi was a better painter. Park’s pay was $17.60 per hour whereas Choi’s was about $12.55. Park stated that he did not assign work to Choi since Choi knew what work he had to do. Occasionally, Park received an order and told Choi that they could work together on the project. Manager Kim stated that he believed that Park assigned work to Choi. Kim also stated that he and Park supervised the work of outside contrac- tors who renovated the hotel’s rooms. Park and Choi wore a uniform consisting of dark colored pants and shirts, and a tie. They wore nameplates which read “maintenance.” However, after Kim became general manager, the nameplate was changed to “engineer.” The managers, named below, wore formal business attire. Park attended meetings with other department representa- tives on a weekly or monthly basis. The meetings were chaired by general manager Kim. Also in attendance were Sonya Song, front desk reception, Helen Kim, Helen Kang, accounting de- partment, assistant general manager Nick Lee, Joseph Kim, personnel department, Amy Park, sales department, Gino Jang, bar, and Juana Rodriguez, housekeeping department. Occasion- ally, owner Kwon attended. The meetings consisted of a discus- sion of each department’s problems and methods of resolving them. At one meeting, Park reported that water pipes were leak- ing, causing wet ceilings, and he asked what should be done. At the next meeting, he was asked if he could repair the pipes. There was no discussion at the meetings of the hotel’s finances, marketing or renovations. At the meetings, Park was given instructions, including an order to repair wallpaper. A letter dated November 4, 1999 from the general manager stated that henceforth, all department heads will be required to attend weekly meetings. The letter was addressed to “all de- partment heads” and listed the front desk, housekeeping, “maintenance – Mr. Park,” and the controller. Park denied see- ing the letter. Manager Kim testified that meetings of the supervisors of each department are held on a weekly, monthly, or as needed basis. The discussions include the problems experienced in each department, and their possible remedies. He stated that Park attended the meetings representing the maintenance de- partment, and denied that Choi was in attendance at any meet- ing. 2. The collective-bargaining background In September, 1999, an election was held in a unit which in- cluded all service and maintenance employees of the Respon- dent, including maintenance employees, but excluding all su- pervisors as defined in the Act. Park, and the other maintenance employee employed at the time, were included by the Respon- dent in the Excelsior list of eligible voters, and they voted in the election. In April, 2000, the Union was certified, and a collec- tive-bargaining agreement was executed on October 28, 2003, to be effective on November 1, 2003. 3. The events of October 31 a. The morning meeting between Park and Kim In the morning of October 31, general manager Kim called Park and asked to meet him at the bar in the hotel. That location was chosen so that their conversation would be private. Kim stated that the purpose of the meeting was to speak about Park’s becoming a member of the Union, and he wanted to speak to Park as a friend to advise him not to become a Union member. At the time of the meeting, Kim knew that the Union contract would be effective the following day. He inconsistently testi- fied that he did not know that he would meet with Union agent Leo Lanci on October 31, but then testified that he knew that he would be meeting with Lanci after work that day. Prior to that day, Kim had spoken to Lanci about Park’s job title and his supervisory status. Kim knew that he would be meeting with Lanci about that matter, but denied knowing that Park was to be included in the bargaining unit. This contrasts with Kim’s testimony that he knew that the Union contract mentioned Park’s job title.5 Kim told Park that his wage under the Union contract would be the same as his current wage rate. He admittedly asked Park why he wanted to be in the Union, adding that the union con- tract did not cover supervisors. Park answered that he voted for the Union and he would receive many benefits as a Union member. Kim testified that he told Park that he compared the Respondent’s benefits to the Union’s benefits. Kim told Park that there would be a meeting that day to determine whether he would be a Union member or not. Kim testified that he did not care about Park’s job title, or whether Park was a member of the Union or not, but urged him to tell the truth during their meeting with Lanci. The truth, ac- cording to Kim, was that Park was a supervisor and not eligible for Union membership. Park replied that he was not a supervi- sor. Park testified that Kim told him that the Respondent had to pay an additional $100,000 because the housekeeping employ- ees were included in the unit, and that owner Kwon did not like that.6 Kim asked him to “reconsider” becoming a member of the Union. Kim told him that, as a Union member, his pay would be less than what he was currently earning since he had to pay union dues, adding that the Respondent’s health plan was superior to the Union’s. Park then told Kim that personnel manager Joseph Kim prevented him from meeting with Union agents when they visited the hotel previously. Kim then told Park that since he was a supervisor he could not become a member of the Union. Park replied that when he voted in the election he was not a supervisor. Kim then angrily directed him to tell the Union agent that he was a supervisor. Park refused, saying that his Union membership should be no concern of the hotel. 5 The contract states that it covers the maintenance employees. 6 There were 23 housekeeping employees, including the housekeep- ing supervisors. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562 b. The afternoon meeting Between Park, Kim and Laci 1. Park’s version of the meeting Later that day, Park met with Union agent Lanci in the basement lunchroom. The room, containing a television, tables and lockers, was used by employees to eat their lunch and for their breaks. It is used exclusively by employees of the hotel. During Park’s conversation with Lanci, Kim entered, and sat next to Lanci. Park closed the door when Kim entered. They discussed Park’s supervisory status. Lanci asked Park if he was a supervisor. Park said, “no.” Kim then asked Park in the Ko- rean language, “you are a supervisor, aren’t you.” Park again denied being a supervisor. Kim, in Korean, said that he ordered merchandise, and Park again denied that status. Kim asked Park to retrieve the day’s maintenance report which he did. Park showed Lanci the jobs that were listed on the form as proof that he was not a supervisor. Kim noted that Park signed the reports as chief of maintenance, and that he also participated in meet- ings, and also ordered merchandise for the maintenance de- partment. Kim told Lanci that Park is a supervisor and could not become a Union member. He told Park in Korean that if he did not tell Lanci that he was a supervisor, he would be fired. Park stated that during their conversation, Lanci spoke in English and Park answered him in English, but that Kim inter- rupted their conversation by speaking to Lanci in English and to Park in Korean. Park “begged” Kim not to interrupt his con- versation with Lanci, and to leave. Park testified that he told Kim, in Korean, that he was a liar. He quoted Kim as saying, as he was leaving, that he could fire Park at any time because he is a supervisor, and called Park a “mother fucker.” Park denied cursing Kim during the meeting. After Kim left, Park told Lanci that he may be fired that day. Lanci did not reply. That evening, Kim called Park on his cell phone and told him that he was fired effective immediately. He was sent the following letter, signed by Kim: “You are terminated as an employee of the Hotel Stanford as of October 31, 2003 for gross improprieties in your conduct with hotel management.” 2. Kim’s version of the meeting Kim testified that an employee told him that Lanci was in the lunchroom and that he wanted to meet with Kim. At the meet- ing, he heard Park attempt to convince Lanci that he was not a supervisor and wanted to be included in the unit. Kim told Lanci that he did not care what Park’s job title was, or whether he wanted to be a Union member or not. He told Lanci, how- ever, that Park must tell the truth to Lanci. Kim told Lanci that Park was a supervisor and gave the fol- lowing examples: (a) he attended supervisory meetings (b) he had a higher salary than Choi (c) only he and Kim had cell phones (d) he submitted daily maintenance reports and (e) he signing the reports as the chief of maintenance. Kim testified that Park angrily interrupted his presentation, and then, nearly standing, pointed at him with his finger about one foot from Kim’s face, and said in Korean that Kim was a liar, a bitch, was now Park’s enemy, and was worse than per- sonnel director Joseph Kim. Kim told Lanci that he (Kim) could no longer participate in the meeting because of Park’s interruption, and was leaving the room when Park loudly called him a “fucking son of a bitch” in English. Kim noticed that housekeeper Rosa Leiva entered the room. He continued to speak for about one minute, and then left. Kim later told Lanci to report the incident to the Union president. Kim, testifying that he was shocked and embarrassed by Park’s cursing at him, reported the incident to the owner of the hotel, telling him that Park must be discharged because he could not have in his employ a worker who does not respect him. That was the first time he had been cursed by an em- ployee. The owner agreed, and Park was terminated. Kim and Park agreed that cursing is inappropriate in the hotel. Kim denied saying that Park could be fired, and denied curs- ing Park. Kim said that the only time he spoke in Korean during the meeting was when he asked Park to get the daily mainte- nance report. Housekeeper Leiva testified that she entered the lunchroom briefly on October 31 to obtain some water, and remained about 3 minutes. She saw Park sitting, and then observed him stand, banging the table with two hands and angrily, in a loud voice in English, call Kim a son of a bitch, and motherfucker. She saw Lanci tell Park to relax and take it easy. She did not hear Kim say anything. Leiva stated that two other workers were outside the room and could hear Park’s comments. She then left the room while the meeting was still in progress. Leiva also testified that, in the past, when Park was directed by housekeeping supervisor Juana Rodriguez to check a damaged item, he always used the word “fucking” in replying to Rodriguez. Park denied that Leiva entered the room during this meeting. I cannot credit his denial. Leiva was a neutral witness who testified credibly about what she saw and heard. Analysis and Discussion I. THE SUPERVISORY STATUS OF PARK The burden of proving supervisory status rests on the party, here the Respondent, asserting that such status exists. Supervi- sory status must be established by a preponderance of the evi- dence. Section 2(11) of the Act provides: The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such author- ity is not of a merely routine or clerical nature, but requires the use of independent judgment. The above statutory provision is to be read in the disjunctive. If the person possesses any of the authority set forth above, and uses independent judgment in its exercise, that individual is a statutory supervisor. The only indicia of supervisory authority that it may argua- bly be claimed that Park possessed is the authority to assign and responsibly direct co-worker Choi, and his recommendation of the hire of Choi. Park and Choi did similar maintenance work, each some- times performing work in areas that they were more skilled in. STANFORD HOTEL 563 Park credibly denied assigning work to Choi. Manager Kim’s vague statement that he believed that Park assigned work to Choi is unsupported by any credible evidence that he made any assignments. The only evidence of an assignment is Park’s testimony that when he received a work order he told Choi that they could work together on the project. Park credibly testified that he did not assign work to Choi since Choi knew what work he had to do. The maintenance repair reports establish that they worked together on various jobs. At most, the evidence may suggest that Park, on that one occasion, made a routine assign- ment of a common painting job to himself and Choi. The mak- ing of routine assignments without the use of independent judgment in the assignment does not confer supervisory author- ity. Volair Contractors, 341 NLRB 678, 680 (2004). Park did recommend Choi for hire, but owner Kwon appar- ently conducted his own search for employees by placing an advertisement in a newspaper and interviewing other appli- cants. The Board has held that interviewing applicants for hire, screening them and recommending them for hire was not evi- dence of effective recommendations of hire, since the depart- ment head chose the applicant who was ultimately hired. Wake Electric Membership Corp., 338 NLRB 298 (2002). I accordingly find that the evidence does not support a find- ing that Park assigned Choi to any work or that he effectively recommended the hire of Choi. The fact that Park’s salary was $5 per hour more than Choi’s is not evidence, in itself of supervisory status. The difference in salary could be explained by Park’s five-year seniority over Choi, and the fact that he had greater responsibilities, for ex- ample, he was required to respond to emergency calls after work hours. In the absence of primary indicia as enumerated in Section 2(11) of the Act, secondary indicia, such as higher pay than other employees, job titles, and attendance at management meetings, are insufficient to establish supervisory status. Volair Contractors, above, 341 NLRB 678, 679 fn. 8; DMI Distribu- tion of Delaware, 334 NLRB 409, 418 (2001); Aardvark Post, 331 NLRB 320, 321 (2000); Carlisle Engineered Products, 330 NLRB 1359, 1361 (2000). Here, as set forth above, there is absolutely no evidence that Park possessed any of the enumer- ated statutory authority. The Respondent alleges that Park possessed certain manage- rial responsibilities which establish his supervisory status. Thus, it asserts that only he and manager Kim carried a cell phone. However, Park was called on his phone only to answer emergency calls after work hours. Rather than establish super- visory status, this demonstrates that he simply continued to perform maintenance work on an as-needed basis. Park could not order supplies on his own, but he had to obtain the authori- zation of manager Kim to do so. The fact that Park was referred to as the “engineer” and signed repair reports indicating that he approved the repairs as “chief maintenance,” does not support a finding that Park was a statutory supervisor. The reports were simply a listing of jobs done and who did them. In fact, Choi completed the forms also. In addition, the form originally said “maintenance,” later it was changed to “approved by maintenance,” and then “approved by chief of maintenance.” These later changes by the Respondent’s owner did not confer any more supervisory authority than Park possessed before the changes. His duties remained the same before and after the changes. “It is well established that rank- and-file employees cannot be transformed into supervisors merely by being invested with that title; rather, an individual’s actual powers, duties and responsibilities control.” Carlisle Engineered Products, above, at 1360. Similarly, Park’s attendance at manager’s meetings proves nothing more than he attended such meetings. In attendance were other department representatives. It is apparent that since he was the senior member of the maintenance department, he would attend such meetings. According to Park’s credited tes- timony, there was a discussion of problems in each department. Park’s report of a water leak was presented and he was asked if he could fix it. The mere fact that Park attended the meetings with other department representatives does not establish super- visory status. Aardvark Post, above. The evidence establishes that Park was a maintenance em- ployee performing routine maintenance work in the hotel. The numerous jobs he completed, set forth above, consisted of re- pair and replacement of broken items. That the Respondent believed that Park was not a statutory supervisor is clear in its inclusion of Park in the Excelsior list. Park’s duties remained the same before and after the election. I accordingly find and conclude that the Respondent has not met its burden of proving that Park is a statutory supervisor. II. THE THREAT TO DISCHARGE AND THE DISCHARGE Park engaged in protected, concerted activity at the meetings on October 31 by seeking union representation and arguing that he should be included in the collective-bargaining unit. Section 7 of the Act states that employees have the right to join unions, and even by acting alone in this regard, Park engaged in activi- ties protected by the Act. NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 831 (1984). Even if it is found that Park was not properly included in the unit because he was a statutory super- visor, his efforts to join the Union were protected, against which the Respondent could not lawfully retaliate. Sealy Mat- tress Co., 262 NLRB 99, 100 (1982). I find, as testified by Park, that, as alleged in the complaint, Kim threatened to discharge him if he did not agree to be ex- cluded from the collective-bargaining unit. As set forth above, Kim told Park at the afternoon meeting, that if he did not tell Lanci that he was a supervisor, he would be fired. Kim further threatened Park that he could fire him at any time because he is a supervisor. Those two comments had as their purpose an ef- fort to coerce Park into ceasing his interest in becoming a Un- ion member. Thus Kim escalated the pressure on Park, begun in the morning meeting, to require Park to agree to be excluded from the unit. I cannot credit Kim’s testimony. He gave contradictory tes- timony about a matter that was obvious—Park’s union status. Kim stated that he knew that the Union contract mentioned Park’s job title, yet incredibly denied knowing that Park was to be included in the bargaining unit. The admitted purpose of Kim’s conversation with Park was to find out why he wanted to become a member of the Union, and to dissuade him from do- ing so. Clearly, if Kim sought to discourage Park from becom- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564 ing a Union member, he must have known that he would be included in the unit. Further, Kim’s testimony that he did not care whether Park was a union member or not does not ring true. He cared enough that he attempted to convince him that he was a supervisor and ineligible for union membership. In addition, Kim variously testified that he did not know that he would meet with Lanci on October 31, but then testified that he knew that he would be meeting with Lanci after work that day. I credit Park’s version of the morning meeting. It is undenied that Kim was concerned about Park’s becoming a member of the Union. The admitted purpose of the meeting was to advise him against joining the Union. I cannot believe that Kim simply wanted to tell Park, as a friend, to reject the Union because he would receive no benefits from membership therein. The real reason, as testified by Park, was that Kim was anxious to hold down the costs of the contract because the Respondent’s owner was not happy about the increased cost to the hotel of the new union contract. Time was of the essence since Kim was scheduled to meet Union agent Lanci later that day at which the topic of the dis- cussion would be Park’s job title and supervisory status. Inas- much as the contract, which included maintenance employees, was to be effective the day after the meeting, it is obvious that Kim believed that he had to find some way that day to exclude Park from membership. Kim chose two courses of action. Ac- cording to Park’s credited testimony, he first sought to con- vince Park that he was not eligible for union membership be- cause he was a supervisor, and that he would not benefit from union membership. Later, when Park pressed the matter at the meeting with Lanci, insisting that he was not a supervisor, Kim threatened Park that if he did not tell Lanci that he was a super- visor, he would be fired. When that tactic proved unsuccessful, Kim told Park that he could discharge him at any time because he is a supervisor. The threat to discharge Park interfered with his right to seek Union membership and violated Section 8(a)(1) of the Act. Where, as here, it is claimed that the Respondent discharged Park because of his comments to Kim in the course of his pro- tected activity at the afternoon meeting on October 31, the question is whether Park lost the protection of the Act by his remarks. Felix Industries, 331 NLRB 144, 146 (2000). Accord- ingly, the factors set forth in Atlantic Steel Co., 245 NLRB 814, 816–817 (1970), are applicable to that determination. Under Atlantic Steel, the Board examines the following fac- tors in determining whether an employee engaged in protected activity loses the protection of the Act by opprobrious conduct: (1) the place of the discussion (2) the subject matter of the dis- cussion (3) the nature of the employee’s outburst and (4) whether the outburst was, in any way, provoked by the em- ployer’s unfair labor practice. I will consider those factors in relation to Park’s conduct at the meeting with Kim and Lanci. The discussion took place in the employee lunchroom. At the start of the discussion, no other employees were present, and when Kim entered the room, Park closed the door in an effort to maintain some privacy in their discussion. Although it was not a work area, it was a place where employees entered, as Leiva did that day, and as testified by her, Park’s comments could be heard by other employees outside the room. Accordingly, this factor weighs against the protection of Park’s comments since they were overheard by other employees and could reasonably tend to affect workplace discipline by undermining Kim’s au- thority. Aluminum Co. of America, 338 NLRB 20, 22 (2002). The second factor, the subject matter of the discussion, clearly related to Park’s effort to become a member of the Un- ion and be included in the bargaining unit. The meeting in- volved an employee’s most fundamental right under the Act to join a union. Park had a legitimate belief that he had a right to union representation. He justifiably believed that he was not a supervisor, which belief was supported by his inclusion, by the Respondent, in the Excelsior list. This factor weighs heavily in favor of protected conduct. With regard to the third factor, I credit Kim’s version of Park’s remarks, essentially since they were, in part, corrobo- rated by neutral witness Leiva. I accordingly find that Park cursed at Kim and angrily pointed his finger at him. However, I do not believe that Park’s conduct was so inflammatory as to lose the protection of the Act. “The Act allows a certain degree of latitude to employees when engaged in otherwise protected conduct, even when employees express themselves intemper- ately.” Winston-Salem Journal, 341 NLRB 124, 126 (2004). The Board, acknowledging that “tempers may run high in this emotional field, that the language of the shop is not the lan- guage of ‘polite society,’ and that tolerance of some deviation from that which might be the most desirable behavior is re- quired, has held that offensive, vulgar, defamatory or opprobri- ous remarks uttered during the course of protected activities will not remove activities from the Act’s protection unless they are so flagrant, violent, or extreme as to render the individual unfit for further service.” Dreis & Krump Mfg., Inc., 221 NLRB 309, 315 (1975). Similar curse words were used by an em- ployee in Burle Industries, 300 NLRB 498, 504 (1990), where the Board found that such language did not cause the employee to lose the protection of the Act. The Board noted that his con- duct was not violent or so extreme as to render him unfit for further service. Here, Park did not threaten Kim, and his lan- guage, although intemperate, was not so extreme as to cause him to lose the protection of the Act. Regarding the fourth factor, it is clear that, in the course of asserting his belief that he was entitled to union representation, Park was provoked by Kim’s response to his protected remarks, including the unlawful threat that he would be fired if he did not tell Lanci that he was a supervisor. Felix Industries, 331 NLRB at 145. Accordingly, Park’s remarks were provoked by the Respondent’s unfair labor practice. I accordingly find that this one, spontaneous, isolated, brief outburst made in the heat of the moment by Park who was un- derstandably frustrated by Kim’s attempt to deny him union representation, did not cause him to lose the protection of the Act. Winston-Salem, above. Park’s discharge, therefore, vio- lated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. By threatening to discharge Joong Hyun Park if he did not agree to be excluded from the collective-bargaining unit, the Respondent has engaged in unfair labor practices affecting STANFORD HOTEL 565 commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discharging Joong Hyun Park, the Respondent violated Section 8(a)(1) and (3) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily discharged an em- ployee, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 P ORDER The Respondent, Stanford New York, LLC d/b/a Stanford Hotel, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge employees if they do not agree to be excluded from the collective-bargaining unit. (b) Discharging or otherwise discriminating against any em- ployee for engaging in protected, concerted activities, or sup- porting Local 758, Hotel & Allied Services Union, SEIU, AFL–CIO, or any other union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Joong Hyun Park 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 privi- leges previously enjoyed. (b) Make Joong Hyun Park 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. (c) Within 14 days from the date of the Board’s Order, re- move from its files any reference to the unlawful discharge, and within 3 days thereafter notify Joong Hyun Park in writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board 7 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 pur- poses. or its agents, all payroll records, social security payment re- cords, 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 back pay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in New York, New York, copies of the attached Notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where Notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the Notices are not altered, de- faced, or covered by any other material. In the event that, dur- ing 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 October 31, 2003. (f) 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. 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 no- tice. WE WILL NOT threaten to discharge any of you if you do not agree to be excluded from the collective-bargaining unit. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected, concerted activities, or sup- porting Local 758, Hotel & Allied Services Union, SEIU, AFL–CIO, or any other union. WE WILL NOT in any like or related manner interfere with, re- strain, 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 Joong Hyun Park 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 privi- leges previously enjoyed. WE WILL make Joong Hyun Park whole for any loss of earn- ings and other benefits resulting from his discharge, less any net interim earnings, plus interest. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566 WE WILL within 14 days from the date of this Order, remove from our files any reference to the unlawful discharge of Joong Hyun Park, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. STANFORD NEW YORK, LLC D/B/A STANFORD HOTEL