KAVA HOLDINGS, LLC, et al., d/b/a HOTEL BEL AIR

370 NLRB No. 73 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Kava Holdings, LLC, et al. d/b/a Hotel Bel-Air and UNITE HERE Local 11. Case 31–CA–074675 January 25, 2021 DECISION, ORDER, AND ORDER REMANDING BY MEMBERS KAPLAN, EMANUEL, AND RING On December 19, 2019, Administrative Law Judge Lisa D. Ross issued the attached decision. The General Coun- sel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief. The Respondent filed exceptions and a sup- porting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions, to adopt the judge’s recommended Order as modified and set forth in full below,3 and to sever and remand one issue to the judge as explained below. For the reasons stated by the judge, we affirm her find- ings that when the Hotel Bel-Air reopened on October 14, 2011, following a 2-year closure for renovations, the Re- spondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to recognize and bargain with the Union and by unilaterally changing unit employees’ terms and conditions of employment. We also affirm, for the reasons she states, the judge’s finding that the Respondent violated Section 8(a)(3) and 1 Subsequent to these filings, the Respondent filed a Motion to In- clude in the Record the Findings and Decision of the Associate to the General Counsel (Division of Operations-Management in Case AD-85). This motion asks the Board to add to the record a letter from the General Counsel’s Division of Operations Management stating that “no further action would be taken regarding the attorney misconduct allegation” that had been referred to the General Counsel by Judge Ross. The General Counsel filed a response to the motion, indicating that he did not take a position on whether or not the letter should be added to the record. On January 7, 2021, the Office of the Executive Secretary informed the par- ties that the Respondent’s motion would be treated as a motion to take administrative notice of agency proceedings. In light of the foregoing, we grant the Respondent’s motion and take administrative notice of this disposition of the judge’s attorney misconduct allegation. Even assuming, however, that the Respondent's motion could be in- terpreted as supplemental briefing regarding its assertion that the judge demonstrated bias in these proceedings, we do not consider the General Counsel's administrative decision not to take further action with regard to the attorney misconduct allegation to be evidence of judicial bias. 2 The Respondent has implicitly excepted to some of the judge’s cred- ibility findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (1) of the Act by refusing to rehire unit employees who were laid off in September 2009 when the Hotel was closed for renovations and who reapplied for their posi- tions beginning July 26, 2011.4 The judge found that these unit employees numbered 152. However, she ordered re- instatement and make-whole remedies for 139 unit em- ployees, who were identified by the General Counsel by the close of the hearing and whose names are listed in Ap- pendix A of her decision. The General Counsel excepts, arguing that the 13 unit employees who were not identi- fied by the close of the hearing are also entitled to remedial relief. The General Counsel argued likewise to the judge, but the judge did not explain why she excluded those 13 from the scope of her recommended Order. Accordingly, we shall sever this issue and remand it to the judge to ad- dress the General Counsel’s argument. At her discretion, the judge may also reopen the record for further proceed- ings regarding the as-yet-unidentified 13 and/or permit the parties to file supplemental briefs.5 AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(5) and (1) by refus- ing to recognize and bargain with the Union as the exclu- sive collective-bargaining representative of the unit em- ployees, we shall order the Respondent to recognize and bargain in good faith with the Union as its unit employees’ exclusive bargaining representative concerning their wages, hours, benefits, and other terms and conditions of employment, and, if an understanding is reached, to em- body the understanding in a signed agreement.6 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Some of the Respondent's exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent's contentions are without merit. 3 We shall modify the judge’s recommended Order to conform to the violations found, the amended remedy, the Board’s standard remedial language, and in accordance with our decision in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). We shall substitute a new notice to conform to the Order as modified. 4 In affirming the judge’s finding that antiunion animus contributed to the decision not to rehire the laid-off applicants, we do not rely on the disparity between the number who applied and the number who were hired or on Glenn’s Trucking Co., 332 NLRB 880 (2000), enfd. 298 F.3d 502 (6th Cir. 2002), cited by the judge. 5 That we are severing and remanding the issue of the 13 as-yet-uni- dentified unit employees has no effect on the Respondent’s obligation to immediately comply with the remedies provided below for the 139 dis- criminatees whose names are listed in Appendix A of the judge’s deci- sion. 6 The Respondent excepts to the judge’s finding that it unlawfully refused to recognize and bargain with the Union in violation of Sec. 8(a)(5) and (1), but it does not argue that the judge’s recommended DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Further, having found that the Respondent violated Sec- tion 8(a)(5) and (1) by making unilateral changes to the terms and conditions of employment of unit employees, we shall order the Respondent to rescind those changes at the Union’s request and make the unit employees whole for any loss of earnings and other benefits attributable to its unlawful conduct. The make-whole remedy shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). This make- whole remedy also requires the Respondent to make any applicable contributions to Union benefit funds that have not been made since the date of the unlawful changes in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979), and to make the unit employees whole for any expenses they may have incurred as a result of the Respondent's failure to make such payments as set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such amounts shall be computed in the manner set forth in Ogle Protection Service, supra, with interest as pre- scribed in New Horizons, supra, compounded daily as pre- scribed in Kentucky River Medical Center, supra.7 Additionally, having found that the Respondent vio- lated Section 8(a)(3) and (1) by unlawfully refusing to re- hire unit employees, we shall order the Respondent to of- fer affected employees instatement and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them.8 Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. We shall also or- der the Respondent to compensate affected employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earn- ings. King Soopers, Inc., 364 NLRB No. 93, slip op. at 1 fn. 2 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017). Search-for-work and interim employment ex- penses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Hori- zons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Finally, we shall require the Respondent to compensate unit employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and to file with the Regional Director for Region 31, within 21 days of the affirmative bargaining order is improper if the Board affirms the judge’s Sec. 8(a)(5) violation finding. Accordingly, we find it unnecessary to provide a specific justification for that remedy. See Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 368 NLRB No. 119, slip op. at 1 fn. 2 (2019) (collecting cases). 7 To the extent that an employee has made personal contributions to a fund that were accepted by the fund in lieu of the Respondent's date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014); AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). ORDER The National Labor Relations Board orders that the Re- spondent, Kava Holdings, LLC, d/b/a Hotel Bel-Air, Los Angeles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Unite Here Local 11 (the Union) as the exclusive collec- tive-bargaining representative of the employees in the bar- gaining unit. (b) Changing terms and conditions of employment of its unit employees without first notifying the Union and giving it an opportunity to bargain. (c) Refusing to rehire unit employees because of their union affiliation. (d) In any like or related manner interfering with, re- straining, 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 effectuate the policies of the Act. (a) On request by the Union, bargain with the Union as the exclusive collective-bargaining representative of its unit employees as described in section 3.A of the August 16, 2006 to September 30, 2009 collective-bargaining agreement between the Union and the Respondent con- cerning the unit employees’ terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement. (b) On request by the Union, rescind the changes in unit employees’ terms and conditions of employment that were unilaterally implemented. (c) Make unit employees whole for any loss of earnings and other benefits suffered as a result of the unlawful uni- lateral changes, in the manner set forth in the amended remedy section of this decision. (d) Make all delinquent contributions to the applicable benefit funds on behalf of unit employees that have not been made as a result of the unlawful unilateral changes, including any additional amounts due the funds, in the manner set forth in the amended remedy section of this decision. (e) Make unit employees whole for any expenses ensu- ing from the failure to make the required contributions to delinquent contributions during the period of the delinquency, the Re- spondent will reimburse the employee, but the amount of such reim- bursement will constitute a setoff to the amount that the Respondent oth- erwise owes the fund. 8 The “affected employees” are the 139 employees listed in Appendix A of the judge’s decision. KAVA HOLDINGS, LLC, ET AL., D/B/A HOTEL BEL AIR 3 the applicable benefit funds, in the manner set forth in the amended remedy section of this decision. (f) Within 14 days from the date of this Order, offer affected employees—as that term is defined in the amended remedy section of this decision—instatement to the positions for which they applied or, if those positions no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or priv- ileges to which they would have been entitled. (g) Make affected employees whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them, in the manner set forth in the amended remedy section of this decision. (h) Compensate unit employees for the adverse tax con- sequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay awards to the appropriate calendar years for each unit employee. (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (j) Post at its Los Angeles, California facility (the Hotel Bel-Air) copies of the attached notice marked “Appendix” in both English and Spanish.9 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of busi- ness or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own 9 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribution of the notice if expense, copies of the notice in English and Spanish to all current employees and former employees employed by the Respondent at any time since July 26, 2011. (k) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED THAT the issue of whether the 13 as-yet-unidentified unit employees who applied for po- sitions but were not hired are entitled to remedial relief is severed and remanded to Administrative Law Judge Lisa D. Ross. On remand, Judge Ross is to address the General Counsel’s contentions regarding the remanded issue. At her discretion, she may also reopen the record for further proceedings regarding the 13 as-yet-unidentified unit em- ployees and/or permit the parties to file supplemental briefs.10 The judge shall prepare a supplemental decision, copies of which shall be served on all parties, after which the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. Dated, Washington, D.C. January 25, 2021 ______________________________________ Marvin E. Kaplan, Member ______________________________________ William J. Emanuel, Member _____________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. the Respondent customarily communicates with its employees by elec- tronic means. If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 10 If Judge Ross chooses to reopen the record, and if the 13 are then identified, the issue of whether unidentified individuals are entitled to remedial relief will be mooted, and the judge need not address it. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with Unite Here Local 11 (the Union) as the exclusive col- lective-bargaining representative of our employees in the bargaining unit. WE WILL NOT change your terms and conditions of em- ployment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT refuse to rehire you because of your union affiliation. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request by the Union, bargain with the Un- ion as the exclusive collective-bargaining representative of our employees in the bargaining unit described in sec- tion 3.A of the August 16, 2006 to September 30, 2009 collective-bargaining agreement between the Union and us concerning our unit employees’ terms and conditions of employment and, if an understanding is reached, WE WILL embody the understanding in a signed agreement. WE WILL, on request by the Union, rescind the changes in your terms and conditions of employment that we uni- laterally implemented on October 14, 2011. WE WILL make you whole, with interest, for any loss of earnings and other benefits suffered as a result of our un- lawful unilateral changes to wages and benefits. WE WILL make all delinquent contributions to applica- ble benefit funds that have not been made since October 14, 2011, including any additional amounts due the funds as provided for in the Board’s Order. WE WILL reimburse you, with interest, for any out-of- pocket expenses you incurred because of our discontinua- tion of contributions to applicable benefit funds. WE WILL, within 14 days from the date of the Board’s Order, offer the employees listed in Attachment A instate- ment to the positions for which they applied or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges to which they would have been enti- tled. WE WILL make the employees listed in Attachment A whole for any loss of earnings and other benefits resulting from our unlawful refusal to rehire them, less any net in- terim earnings, plus interest, and WE WILL also make them whole for reasonable search-for-work and interim em- ployment expenses, plus interest. WE WILL compensate you for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocat- ing the backpay awards to the appropriate calendar years for each employee. KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL BEL-AIR The Board’s decision can be found at www.nlrb.gov/case/31-CA-074675 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. ATTACHMENT A 1. Adam Gardner 2. Alberto Duran 3. Alex Barrios 4. Allyson Tison/Tizon 5. Amanda Escobar 6. Ana Arrozola 7. Angel Loeches 8. Anthony Hop Pham 9. Antonio Diaz 10. Antonio Escobedo 11. Antonio Romero 12. Armando Alvarenga 13. Armida Huezo 14. Arturo Leon 15. Beatriz Lemis 16. Boris Shaetz 17. Borislav Kostadinov 18. Bradley Anderson 19. Carlos Burgos KAVA HOLDINGS, LLC, ET AL., D/B/A HOTEL BEL AIR 5 20. Carlos Gutierrez 21. Carlos Perez 22. Carmen Casiano 23. Chad Biagini 24. Corina Ivanna Ganame 25. Cristian Vargas 26. Danielle Rodriguez 27. Davis Komarek 28. David Leger 29. Delmy Alas 30. Domingo Antonio 31. Edgar Cano 32. Edith Calderon 33. Elizabeth Bono 34. Emilio Molina 35. Eric Flores 36. Erick Orozco 37. Esteban Pacheco 38. Evaristo Vasconcelos 39. Feliciano Viscarra 40. Felipe Vasquez 41. Felix Gonzales 42. Fortino Luis Martinez 43. Francisco Alas 44. Gilberto A. Moran 45. Gilberto Diaz 46. Giovanni Rodriguez 47. Guadalupe Soto 48. Hector Jimenez 49. Hermina Urbana 50. Hignio Castellon 51. Howie Witz 52. Ignacio Escobedo 53. Inigo De La Hidalga 54. Irma Zavala 55. Ismael Casanova 56. Ismael Witz 57. Ivan Stankov 58. Jacques Felix 59. Jaime Bravo 60. Jehane Delwar 61. Jennifer Contreras 62. Jennifer Jimenez 63. Jeremias Del Cid 64. Yixiong "Jimmy" Dong 65. Joaquin Fuentes 66. Jorge Duarte 67. Jose Bojorquez 68. Jose de Jesus Garcia 69. Jose Luis Gaeta 70. Jose Madrid 71. Jose Manzo 72. Jose Mojarro 73. Jose Polio 74. Jose Pavon 75. Jose Pinedo 76. Joseph Nava 77. Juan Carlos Pavon 78. Juan Contreras 79. Julio Cruz 80. Julio Pedro Perez 81. Justino Castellon 82. Karoly Zsiga 83. Kenny McCabe 84. Khenk Lee 85. Laura Fergusson 86. Leslie Miller 87. Manuel Giron 88. Maria Del Cid 89. Maria Gomez 90. Maria Lourdes Nolasco 91. Maria Antoinette Albano Gonzales 92. Mario Rodriguez 93. Martin Orozco DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 94. Matthew Biedel 95. Miriam Martirosyan 96. Mishele Tapia 97. Mohammed Masum 98. Narciso Lopez 99. Ngoc Mihn Hoang 100. Nora Melendez 101. Oscar Flores 102. Oscar Galdamez 103. Oscar Ingles 104. Oscar Martinez 105. Oscar Vasquez 106. Pablo Del Real 107. Patricia Miranda 108. Pedro Hernandez 109. Pedro Morales Sanchez 110. Rafael Guevarra 111. Rafael Martinez 112. Raul Salazar 113. Raymundo Avina 114. Refugio Lopez 115. Rejo Jastoreja 116. Rigoberto Carrillo 117. Rigoberto Contreras 118. Robert "Charlie" Hargitay 119. Roberto Dominguez 120. Roel Andres 121. Roger Jackson 122. Ronald Hartling 123. Rosa Perez 124. Rudy Castellanes 125. Salvador Gonzales 126. Salvador Maldonado 127. Sapardjo Diporedjo 128. Sergio Manzo 129. Sonia Mancias 130. Sonia Reyes 131. Steve Rasmussen 132. Tomas Alvarado 133. Tomas Ramirez 134. Ulises Trejo 135. Victor Pacheco 136. Victor Venegas 137. Virginia Cruz 138. William Carranza 139. Wilson Alvaro KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL BEL-AIR 7 370 NLRB No. 73 Yaneth Palencia, Simone Gancayco and Sarah Ingebritsen, Esqs., for the General Counsel. Arch Stokes, Karl M. Terrell and Diana Dowell, Esqs. (Stokes Wagner ALC), for the Respondent. Kirill Penteshin and Charles Du, Esqs. (UNITE HERE Local 11),of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE LISA D. ROSS, Administrative Law Judge.1 On February 15, 2012, UNITE HERE Local 11 (the Charging Party, Local 11 or the Union) filed an unfair labor practice (ULP) charge against Kava Holdings, LLC, et al. d/b/a Hotel Bel Air (Respondent). In January 2013, Region 31 held this matter in abeyance until July 29, 2016, pending the outcome of a related case Hotel Bel Air v. NLRB, 637 F.3dAppx. 4 (D.C. Cir. 2016). In that case, the U.S. Court of Appeals for the District of Columbia enforced the Na- tional Labor Relations Board’s (NLRB or the Board) Order in Hotel Bel Air, 361 NLRB 898 (2014) which adopted a prior Board decision at 358 NLRB 1527 (2012). Region 31 issued the instant complaint on July 29, 2016, then amended it on Decem- ber 26, 2016. The amended complaint (complaint) alleges that Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act (NLRA or the Act) when, after a temporary closure of the Hotel, Respondent refused to rehire or recall approximately 152 former bargaining unit employees in order to avoid recognizing and bargaining with the Union. The complaint further avers that Respondent violated Sections 8(a)(5) and (1) when, after the Hotel reopened, Respondent re- fused to recognize and bargain with the Union and made unilat- eral changes to terms and conditions of employment of bargain- ing unit employees without giving prior notice to and bargaining to impasse with the Union.2 Respondent filed its answer and amended answer, denying all material allegations and setting forth multiple affirmative de- fenses to the complaint. This case was tried in Los Angeles, California, over 21 dates between March 13, 2017 and June 28, 2018. Counsel for the General Counsel, Charging Party and Respondent presented wit- ness testimony along with a mountain of documentary evidence.3 After the trial, counsel timely filed extensive post-hearing briefs, which I have read and carefully considered. Based upon the entire record, including the testimony of the witnesses, my observation of their demeanor, and the parties’ briefs, I conclude that Respondent violated the Act as alleged.4 FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent operates a 5-star luxury hotel, the Hotel Bel Air, in Los Angeles, California. It is undisputed that, at all material times, Respondent’s gross revenue exceeded $500,000 annually, 1 At the time of the trial, my name was Lisa D. Thompson. However, since the hearing I got married and have legally changed my name to Lisa D. Ross. 2 The General Counsel withdrew the allegation in par. 9(b) of the amended complaint based on a refusal to consider for hire. 3 The delay in issuing this decision was due, in part, to my being on extended leave under the Family and Medical Leave Act (FMLA). 4 Abbreviations used in this decision are as follows: “Tr.” for the Transcript, “GC Exh. #” for the General Counsel’s exhibits, “CP Exh. #” and it annually purchased and received goods valued in excess of $5000 from points outside the State of California. Accord- ingly, I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act.5 It is also undisputed, and I find that, at all material times, UNITE HERE Local 11 has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent operates the Hotel Bel Air (the Hotel) in Los An- geles. The Hotel has been a luxury hotel for decades. It is cur- rently owned by the Dorchester Collection, which also owns the Beverly Hills Hotel in Los Angeles and other luxury hotels. Prior to September 30, 2009, the Hotel was a five-star luxury hotel. Also prior to September 30, 2009, UNITE HERE Local 11 was the exclusive collective-bargaining representative for many of Hotel’s employees, including, but not limited to, kitchen workers, dining and room service employees, housekeepers, gar- age and front desk employees, restaurant employees, guest and banquet services employees, gardeners, painters, maintenance employees, stewarding, and purchasing and receiving employ- ees. (GC Exh. 3.) Respondent and the Union were party to a series of collective bargaining agreements (CBA), the most re- cent of which was in effect from August 16, 2006 to September 30, 2009, the date the hotel closed for renovation. On September 30, 2009, the Hotel temporarily closed for ex- tensive renovation and remodeling. It laid off all bargaining unit employees. Respondent and the Union engaged in effects bar- gaining. Key issues for negotiations included the right of bar- gaining unit employees to return to their positions upon the Ho- tel’s reopening and the terms of any severance package offered to employees. The parties bargained throughout the end of 2009 and into the middle of 2010. By June 7, 2010, however, Respondent unilaterally, and with- out notice to the Union, implemented its “last, best and final of- fer” from April 2010, and sent severance packages and waiver and release forms to the unit employees. Approximately 179 employees signed the waiver and release forms, thus forfeiting their recall rights. The Union filed an ULP charge regarding Respondent’s ac- tions in this regard. The Board held that Respondent violated Section 8(a)(5) and (1), finding that a valid impasse did not exist, and that Respondent had therefore illegally dealt directly with unit employees, Hotel Bel Air, 358 NLRB 1527 (2012), adopted 361 NLRB 898 (2014), enfd. 637 Fed.Appx. 4 (D.C. Cir. 2016)(finding that a valid impasse did not exist when Respond- ent unilaterally implemented its last, best and final offer, and that Respondent illegally dealt directly with unit employees for Charging Party’s exhibits, “R. Exh. #” for Respondent’s exhibits, “ALJ Exh. #” for the Administrative Law Judge’s exhibits, “GC Br.” for the General Counsel’s brief, “CP Br.” for Charging Party’s brief, and “R. Br.” for Respondent’s brief. Specific citations to the transcript and ex- hibits are included where appropriate to aid review and are not neces- sarily exclusive or exhaustive. 5 See Hotel Bel-Air, 358 NLRB 1527, 1529–1530 (where Respondent admitted it was an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) the Act). 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD regarding severance).6 The Board ordered that Respondent re- scind the waiver and release agreements signed by 179 unit members if the Union requested and for Respondent to bargain with the Union over the effects of the temporary shutdown. B. Respondent’s Reopening and Job Fair Turning back to this case, Respondent prepared the Hotel for its reopening. (Tr. 1825, 2388.) Despite Respondent’s argu- ments that the Hotel was entirely different from the pre-closure Hotel, the Hotel remained essentially the same five-star luxury hotel it was prior to the renovation. More importantly, the record reveals that the Hotel’s job descriptions and duties for most bar- gaining unit positions before and after its temporary closure re- mained essentially the same. (Tr. 1717–1726, GC Exh. 9–10). Prior to its reopening, Respondent conducted a job fair, planned by Beverly Hills Hotel’s Director of Human Resources Eva White (White). Respondent hired Sandra Arbizu (Arbizu) as Respondent’s human resources manager to prepare for the reo- pening. (Tr. 1860.) Maria “Milet” Lukey (Lukey) served as Area Director of Hu- man Resources for both the Beverly Hills Hotel and the Hotel Bel-Air. Lukey was the top staff member in charge of organizing the job fair. Arbizu, under the direction of White, Lukey and Re- spondent’s General Manager Tim Lee (Lee) determined how the job fair would run. (Tr. 1862–1863.) Interestingly, when Union counsel asked Arbizu whether any preparations were made to deal with the Union upon reopening, Arbizu testified: I guess when you –when you say “preparation”, is –what I mean by that is that we do training on being good managers, following good practices. We do training on getting people en- gaged. We want to have meeting—department meetings. We want to make sure that we provide a clean and healthy break room, cafeteria. That we work at making sure they have uni- forms, all of this, for is preventative kind of work that we do to educate our managers so that your employees do not need a third party to speak for them, that they can come and talk to you. We have an open-door policy. So, things like that. Q. So in other words, taking, as you put it preventative measures to make sure a union doesn’t need to come, or that they don’t need to be represented by a Union, because those things are being taken care of? A. Well, yeah. To be good managers, to be good people to their staff. (Tr. 1906–1907.) It is undisputed that Respondent held its job fair on July 26, 27 and 28, 2011. In advertising the job fair, Respondent sought candidates with “exceptional talent,” who had “a passion for ex- cellence, a warm, friendly and positive attitude, and strong ver- bal communication skills.” (Tr. Vol. 4 at 16–17, GC Exhs. 6 and 7.) “Previous luxury hospitality experience and the ability to thrive in a fast-pace (sic) environment” was “desirable.” (GC 6 The initial decision was rendered by a Board that was not legally constituted. In 2014, a legally constituted Board affirmed the judge’s rulings, finding and conclusions, and adopted the recommended order to the extent set forth in the 2012 decision. 7 There is no evidence who took the applications put in the blue box to the departmental reviewers. 8 This fact is actually irrelevant since there is a rebuttable presumption that the Union enjoyed majority support after the expiration of its Exh. 6–7). The first day of the job fair was reserved for former Hotel em- ployee applicants. Respondent accepted applications from and/or interviewed the general public on July 27 and 28. Inter- view forms indicated the day and time—AM or PM—applicants were interviewed, making it clear which applicants were former employees. (GC Exh. 2.) It is undisputed that approximately 306 hourly positions were available at the time of the Hotel’s job fair. (Tr. 536.) 1. Initial interviews The interviewing process had three rounds: the initial inter- view, the departmental interview, and the final interview. The initial interview lasted from a few seconds to a few minutes, and the interviewers asked the same three questions: What position are you applying for? Are you available to work weekends/holidays? Why do you want to work at Hotel Bel Air? The initial interviewers were instructed to rate the applicants on Appearance, Self Confidence and their Communication Skills. Initial interviewers were responsible for completely fill- ing out the initial interview section of the candidate’s interview form then determining whether the applicant advanced to the next level. Respondent’s first round interviewers had discretion to rec- ommend advancing the applicant to the next round of interviews. The interviewers were instructed to put the applications for those advancing to the second round in a blue “yes” box and to put those not advancing in a pink “no” box. (Tr. 1776–1777, 1867, 2054–2055, 2097, 2107.)7 Record evidence demonstrates that, out of 176 former em- ployee applicants 67 of them did not advance after their initial interview, thus assuring Respondent that a majority of the bar- gaining unit would not consist of former unit employees (176 applicants minus 67=109, less than 50% of the unit upon reopen- ing).8 Moreover, any applicant whose application went into a blue “yes” box should have received a second interview with a de- partmental head or the equivalent. However, the record is replete with examples of former unit employee applicants who, based on the documentary evidence, should have received a depart- mental interview but did not. For example: Irma Zavala (Zavala) worked for the Hotel for 20 years as a room attendant (aka housekeeper), then as a uniform attendant. On the morning of July 26, Khoi Evans (now Khoi Luevano), the Assistant Director at the Beverly Hills Hotel, interviewed Zavala in the first round. Evans gave Zavala a positive review, yet Zavala did not receive a second interview. (Tr. 385–387, 2078–2079, see also GC Exh. 2 at 481.) Zavala’s interview form gives absolutely no reason why she did not have a depart- mental interview. Respondent has not offered any explanation why Zavala was not hired. Carmen Casino (Casino) worked for the Hotel as a room collective bargaining agreement with Respondent, Golden State Warri- ors, 334 NLRB 651, 653–54 (2001). However, this statistical infor- mation is included herein as evidence of antiunion animus which is dis- cussed later in this decision. See Greenbrier Rail Services, 364 NLRB No. 30, at 40–41, citing Golden Day Schools v. NLRB, 644 F.2d 834, 838 (9th Cir. 1981). KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL BEL AIR 9 attendant for 22 years—from 1987 until September 30, 2009. Evans/Luevano interviewed Casino and gave her a positive rat- ing. Yet, there are no markings on the interview form that Ca- sino was advanced to a departmental interview, and Respond- ent did not hire her. (GC Exh. 2 at 254–257, Tr. 2072–2076.) Ana Arrazola (Arrazola) worked as a room attendant for the Hotel for 13 years – from 1996 until September 30. 2009. She reapplied for her position. Evans/Luevano interviewed Ar- razola and gave her a positive rating. However, Arrazola did not get a departmental interview and was not hired. (Tr. 2079– 81, GC Exh. 2 at 489–492.) Respondent has not offered a rea- son why Arrazola was excluded from the hiring process. Carlos Burgos (Burgos) worked for the Hotel as a night cleaner for 16 years—from 1993 to September 30, 2009. (GC Exh. 2 at 109–112.) He reapplied for his former position. Ev- ans/Luevano gave Burgos a positive rating, but he did not re- ceive a departmental interview and was not hired. (Tr. 2081– 2084). Respondent again offered no explanation as to why Burgos was not rehired. Pablo Del Real (“Del Real”) worked for Respondent for ap- proximately 21 years. (Tr. 1126.) Del Real initially worked as a housekeeper then as a painter in the engineering department. In fact, for approximately 15 years, Del Real intermittently worked as a substitute supervisor whenever his supervisor was absent. Del Real reapplied for his job as a painter but was ex- cluded from consideration after his initial interview because he did not “possess minimum experience/skills requirement.”(GC Exh. 2 at 14). Yet, Respondent offered a painter/engineer posi- tion to non-former employee applicant Fernando Diaz (Diaz), who had no experience working in a hotel and had previously been working as a cable installer for the past two years. (GC Exh. 2 at 1077–1081). Incredibly, Respondent noted on Diaz’s interview notes that he had “good experience.” (Id. at 1077.) 2. Departmental interviews It is undisputed that, if an applicant advanced to the second round, the candidate next interviewed with a department man- ager. These second interviews often occurred behind a barrier from where the initial interviews took place. During the depart- mental interviews, the department head asked pre-prepared but more detailed questions and recorded the applicant’s answers further down on the candidate’s interview form. Like the initial interviewers, the departmental managers had discretion to choose which applicants, out of those passed on to them, they would interview. (Tr. 1912, 2304, 2398–2399.) However, even at the second stage of the interview process, unusual anomalies occurred. Specifically, in many cases in which Respondent’s documents indicate that the applicant may have received a departmental interview, I conclude the applicant did not, because the manner in which these forms were com- pleted (or not completed) indicates that there was no interview. For example, I turn to the interview forms completed (or not completed) by Andrey Godzhik (Godzhik). I infer from the record that the initials AG on many of the in- terview forms are those of Andrey Godzhik, a manager for Wolf- gang Puck’s restaurant at the Hotel. (Tr. 555.) While all depart- mental managers were instructed to complete the section of the interview form under departmental interview (Tr. 533), the 9 The Union in its brief states that Godzhik rejected 31 former em- ployee applicants. CP Br. at 10. record demonstrates that Godzhik did not do so with regard to many of the applicants he excluded from the hiring process.9 Specifically, the record reveals that when Godzhik inter- viewed applicants, he filled out the departmental form in full. (See e.g., GC Exh. 2 at 359–360). However, when he did not fill out the form, but merely initialed it, I infer he did not interview the applicant, but summarily excluded the applicant from the hir- ing process. I draw this inference from several factors. First, Respondent did not call Godzhik as a witness and has not indicated that he was unavailable to testify. Second, Re- spondent’s brief at p. 31 states that the departmental interviews were largely conducted by departmental managers. However, Godzhik was not a departmental manager. Thus, it is unlikely that he interviewed the many applicants on whose forms his ini- tials appear. Finally, I find that the reasons given for excluding these for- mer employee applicants are, in many cases, preposterous. Spe- cifically, below are examples of former employee applicants who I infer did not have a departmental interview despite the presence of Godzhik’s initials on their interview forms: Salvador Maldonado (Maldonado) worked as a server in the Hotel’s restaurant for approximately 25 years—from 1984 to September 30, 2009. (GC Exh. 2 at 298–301). He reapplied for his former position. Evans/Luevano gave him a positive rat- ing in the initial interview. (Tr. 2084–2087). However, the in- terview form indicates that Godzhik excluded Maldonado from consideration because he did not “possess the minimum expe- rience/skills for the server position for which he was applying.” Lukey, the job fair coordinator, interviewed Thomas Alvarado (Alvarado) on July 26. Alvarado worked at the Hotel for ap- proximately 25 years—rom 1984 through 2009. Although Al- varado supposedly advanced to the departmental interview, Godzhik excluded Alvarado from the hiring process due to his “unacceptable job stability.” (GC Exh. 2 at 145–148.) Oscar Martinez (Martinez) worked for the Hotel for approxi- mately 10 years–from 1999 through 2009. (GC Exh. 2 at 113– 116). He was previously a busboy and reapplied for his former position. He received a positive initial evaluation from Jona- than Mattis (Mattis), then the Hotel’s Director of Marketing. Yet Godzhik summarily excluded Martinez from further con- sideration as a busboy due to his “unacceptable job stability.” Elizabeth Bono (Bono) worked as a bartender at the Hotel for approximately 12 years—from 1997 to 2009. She reapplied for her former position. Lukey gave Bono a positive rating. How- ever, Godzhik again summarily excluded Bono from further consideration due to “unacceptable job stability.” (GC Exh. 2 at 373–376.) Antonio Diaz (Diaz) worked for Respondent for approximately 23 years – from 1986 until September 30, 2009—as a mini-bar attendant. He reapplied for his former position. Mattis gave Diaz a positive rating on his initial interview. (GC Exh. 2 at 453–456, Tr. 2111–2112.) Nevertheless, Godzhik summarily excluded him from consideration on the grounds that he did not “possess the minimum experience/skills to be a bartender.” However, Respondent offered non-former employee applicant Divania Minc a position as a mini bar attendant where she had only three years of hotel experience. Respondent rated her as 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD having “[s]trong experience for this position.” (GC Exh. 2 at 1465–1468.) Oscar Galdemez (Galdemez) was a houseman at the Hotel for 10 years prior to 2009. He reapplied for his former position. Evans/Luevano gave Galdemez a favorable assessment at his initial interview. (GC Exh. 2 at 19–20). Despite this, Galdemez did not get a departmental interview and there is no explanation why he was not advanced in the record. Similarly, there was no explanation why Jeremias Del Cid (Del Cid), who was a housekeeping supervisor at the Hotel from 1986 to 2000 (GC Exh. 2 at 50–53), and Minh Ngoc Hoang (Hoang), a seamstress/uniform attendant, who worked for the Hotel from 1990-2009, both of whom reapplied for their for- mer positions and received a favorable initial assessment, did not receive a departmental interview. (GC Exh. 2 at 125–128.) Juan Contreras Torres (Torres) was a busboy for the Hotel for approximately five years – from 2004 to 2009. He reapplied for his former position. Torres received a favorable rating on the initial interview but did not get a departmental interview. (GC Exh. 2 at 653-56). An unknown person opined that Torres lacked “hospitality/communication skills” and “did not possess the minimum experience/skill requirements for the position”. There is no showing in this record as to how hospitality/com- munication skills are relevant to the job of a busboy. In contrast, Respondent offered Kevin Gilly a busser position where he listed no busser experience on his application (GC Exh. 2 at 1176–1179.) Respondent also hired Hong Moon (Moon) as a busser, despite rating Moon as having “basic ex- perience, training needed”(Id. at 1488-1492). Lastly, Respond- ent offered a busser position to Paris Ramirez who had no lux- ury or hotel experience and had not worked in a restaurant in the past four years (Id. at 636–640). 3. Final interviews It is further undisputed that, if the applicant was advanced passed the departmental interview, the last stage was the final interview, which were mostly conducted by Hotel Manager Christoph Moje (Moje), a different position from Respondent’s General Manager. These interviews were mostly conducted in a set of trailers across the street from the Hotel. (Tr. 2563). Moje asked each applicant the questions listed in, and then completed, the final interview section of the interview form. (GC Exh. 2; Tr. 533.) He interviewed every applicant that was presented to him, and he made his decisions to hire or reject the applicant immedi- ately after the interview. (Tr. 2564–2565). It is undisputed that, for approximately 306 job openings available, and out of the approximately 176 former Hotel em- ployee applicants who applied for the 306 jobs available, only 24–25 former unit employees were hired during the job fair. (Tr. 536–538.)10 This means that Respondent rejected 152 out of 176 former unit employees who applied/reapplied for their former positions. (GC Exh. 52, see also Appendix A attached to this de- cision, see GC Br. at Exh. 1). The former unit employee appli- cants who were rejected were qualified for the open positions, and many had several prior years of positive evaluations while they worked for Respondent. (GC Exh. 29.) These included, but 10 Several former Hotel employees were hired late in the process. Lu- cinda Landers, a former Hotel waitress, received a very unfavorable as- sessment from Godzhik at the departmental interview. (GC Exh. 2 at 359–360, Tr. 2224–2229, 2234.) Yet, she was hired in August 2011. The are not limited to, former employees Irma Zavala, Juan Pablo Contreras Torres, Amanda Escobar, and Pablo del Real, all of whom had positive work histories while employed by Respond- ent. In addition, the record demonstrates that some of the rejected former employee applicants worked for Respondent for 20 years or longer. (See, e.g., GC Exh. 2 at 141–148, 254–257, 441–444, 481–484.) Out of the 176 former employee applicants, at least 64 (36%) were not given a departmental interview. (GC Exh. 2.) Out of the 64 former employee applicants dismissed at this stage, around 42 (65%) had worked at the Hotel for five years or more, and around 29 (45%) had at least 10 years tenure with Respond- ent. C. Refusal to Recognize/Bargain with the Union As stated above, on or about September 30, 2009, when the CBA expired, Respondent temporarily closed for renovations. All bargaining unit employees were laid off. Record evidence reveals that Respondent clearly intended to reopen the Hotel as it continued to employ managers, directors, accounting employ- ees, engineering employees and security. It also planned, coor- dinated and conducted its job fair, announced the job fair to the public as well as the Union and intended to hire employees and re-staff itself in advance of its reopening in October 2011. On or about October 14, 2011, Respondent reopened the Ho- tel. That same day, the Union and unit employees picketed across the street from the Hotel. (Tr. 629.) Since the Hotel reopened in October 2011, it is undisputed that Respondent has not recognized the Union as the exclusive bar- gaining representative for unit employees. (Tr. 621, see also GC Exh. 1(r) at 6.) It is further undisputed that Respondent did not provide the Union with notice that it was withdrawing recogni- tion of the Union (Tr. 621, 626). To date, Respondent has yet to recognize the Union since its reopening. To date, Respondent has yet to bargain with the Union over any terms and conditions of employment for the bargaining unit prior to and after the Hotel’s September 30, 2009 shutdown, the events leading up to, during or after the job fair, or any terms and conditions of employment for the bargaining unit after the Hotel reopened. D. Unilateral Changes to the Terms/Conditions of Employment of Bargaining Unit Employees Since the Hotel reopened in October 2011, Respondent unilat- erally made the following changes to the terms and conditions of employment for various bargaining unit positions: Wage rates for certain job classifications were determined by the wage rates at other luxury hotels in the Los Angeles area rather than by the terms of the expired CBA. (Tr. 625, 1575– 1578, see also GC Exh. 3 at 9, 21–25.) Respondent stopped making payments to the Union’s retire- ment, legal, or health and welfare funds, as required by the CBA (Tr. 625, GC Exh. 3 at 9, 21–25). The expired CBA prohibited “work customarily performed by employees covered by [the] Agreement” from being “subcon- tracted, transferred or assigned by any means to any persons, firm, or entity.” (GC Exh. 3 at 5–6.) However, Respondent out- sourced the positions of gardener, painter, maintenance, and General Counsel identified 139 former employees who were subse- quently rehired after the job fair concluded. Their names appear in GC Exh. 51 (Tr. 1603–1609). However, Lucinda Landers does not appear on this list. (Id.). KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL BEL AIR 11 “touch-up” to a third party. (GC Exh. 3 at 47, Tr. 1893, 1931– 1932.) Respondent also changed the terms and conditions of em- ployee’s meals and breaks, vacations, sick days, paid time off, retirement, health and life insurance, seniority and how em- ployees are compensated during attendance at mandatory meetings. (See GC Br. at 66–69.) It is undisputed that Respondent did not give, and has not given, notice to or bargained with the Union about these changes before implementing them. DISCUSSION AND ANALYSIS After reviewing all of the evidence, I conclude that: I. RESPONDENT VIOLATED SECTION 8(A)(3) AND (1) OF THE ACT BY REFUSING/FAILING TO REHIRE JOB APPLICANTS WHO WERE MEMBERS OF THE BARGAINING UNIT PRIOR TO THE HOTEL’S OCTOBER 14, 2011 REOPENING A. Legal Standard It is an unfair labor practice “for an employer to discriminate in hiring or retention of employees on the basis of union mem- bership or activity under Section 8(a)(3) of the NLRA.” Mason City Dressed Beef, Inc., 231 NLRB 735, 745 (1977), citing NLRB v. Burns Security Services, Inc., 406 U.S. 272, 280–281 (1972) (new owner cannot refuse to hire his predecessor’s em- ployees solely because they were union members or in order to avoid having to recognize the Union). The appropriate test to determine whether Respondent dis- criminatorily refused to hire/rehire its former union member em- ployees is set forth in FES, 331 NLRB 9 (2000). Relying also on the burden shifting analysis in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F. 2d 889 (1st Cir. 1981) cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transporta- tion Management Corp., 462 U.S. 393 (1983), in order to estab- lish a prima facie case of discriminatory refusal to rehire, the General Counsel must show that: (1) Respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) applicants had the experience/training relevant to the requirements of the positions for hire, or Respondent did not adhere uniformly to such requirements, or the requirements were pretextual or were applied as a pretext for discrimination; and (3) antiunion animus contributed to the decision not to hire the ap- plicants. Recently, the Board clarified element three of the General Counsel’s prima facie case, holding that, in order to prove anti- union animus sufficient to carry the General Counsel’s initial burden, the General Counsel must establish a causal connection “between the employee(s’) protected activity and the employer’s adverse action against the employee(s).” See Tschiggfrie Prop- erties, Ltd., 368 NLRB No. 120 at 1 (2019). This means, that, in order to demonstrate that Respondent’s failure to rehire was mo- tivated by their former employees’ union membership, the Gen- eral Counsel must establish a link or nexus between the employ- ees’ protected activity and Respondent’s failure to hire/rehire its former employees. (Id.). If the General Counsel satisfies her prima facie case, the bur- den of persuasion shifts to Respondent to show that it would not have hired its former unit employee applicants even in the ab- sence of their union activity/affiliation. FES, supra at 12, see also Greenbrier Rail Services, 364 NLRB No. 30, at 49–50 (2016) (Board applied the FES test in cases where an employer refuses to rehire its former employees). To satisfy this burden, Respond- ent “. . . cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” Serrano Painting, 332 NLRB 1363, 1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). If Respondent’s proffered defenses are found to be a pretext, i.e., the reasons given for the employer’s actions are either false or not relied on, it fails by definition to show that it would have taken the same action for those reasons. On the other hand, fur- ther analysis is required if the defense is one of “dual motiva- tion,” that is, Respondent defends that, even if an invalid reason might have played some part in its motivation, Respondent would have taken the same action against its employees for per- missible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005). B. Analysis As shown below, the General Counsel has met her initial bur- den to establish a discriminatory motive in Respondent failing to rehire its former unit member employees. Specifically, the rec- ord reveals and I find that: (1) Respondent held a job fair to hire various employees upon its reopening and (2) practically all of Respondent’s former unit member employees who participated in the job fair previously worked for Respondent, were given positive job evaluations prior to their layoff, were applying for their former positions, and had the experience/training relevant to the positions for which they applied. Third, Respondent failed to rehire 152 out of 176 former bargaining unit employees when it reopened in October 2011. Regarding Respondent’s antiunion animus (element 3), I rely on HR Manager Arbizu’s testimony (quoted herein at p. 4), re- garding Respondent’s intent not to have a unionized workforce when the Hotel reopened, in addition to the number of former Hotel employees excluded at the initial interview stage, as well as record evidence regarding the unexplained failure of many former unit members to get a departmental interview after having a positive initial interview, the unexplained and/or obviously in- sufficiently explained reasons many of these employees were ex- cluded at the departmental interview stage and the suspiciously small number of former unit employees hired. See Greenbrier Rail Services, supra at 140–141 (citations omitted)(“discrimina- tory motive or animus may be established by. . . statements and actions showing the employer's general and specific animus, the disparate treatment of the discriminatees, and . . . evidence that an employer's proffered explanation for the adverse action is a pretext.”). Respondent argues that the General Counsel has shown only “generalized” union animus, not “particularized” union animus. (R. Br. at 57–58). Although a “particularized” showing of union animus was irrelevant at the time this case was tried, even under the standards articulated in Tschiggfrie Properties, Ltd., supra, I find the General Counsel has satisfied her burden to show ani- mus. Specifically, the record shows countless examples of former employees, almost all of whom are union members, being ex- cluded after the initial interview either without sufficient expla- nation or because of a bogus explanation. Furthermore, the Gen- eral Counsel produced evidence showing the small number of former employees re/hired as compared with the number of for- mer unit member applicants and the available jobs. 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moreover, it is settled law that a discriminatory motive other- wise established is not disproved by the failure to “weed out all union adherents,” Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir. 1964); McKee Electric Co., 349 NLRB 463, 465 fn. 9 (2007); Lucky Cab Co., 360 NLRB 271, 275 (2014). Based on the clearly preposterous reasons given for their exclusion (i.e., former employee applicants lacked minimum skill level for po- sition when they had successfully performed the job for which they were reapplying for between 5–25 years; or former em- ployee applicants demonstrated unacceptable job stability when they successfully worked for Respondent in the job for which they were reapplying for between 10–20 years), I find that Re- spondent intended to weed out a sufficient number of bargaining unit members to prevent a majority of former employees from being rehired when the Hotel reopened. Once the majority of for- mer bargaining unit members were excluded, Respondent would not have to recognize or bargain with the Union. Not only did Respondent take the unlawful actions indicated above, its brief failed to rebut the overwhelming evidence of discrimination by failing to give credible non-discriminatory reasons for rejecting its former employees. Respondent’s own pretextual reasons simply confirm its discriminatory motive. Even using the Greenbrier standard to demonstrate animus, I find Respondent’s animus toward rehiring its former bargaining unit employees is clearly evidenced by: 1) its prior unlawful ef- forts to obtain waivers of reinstatement rights from former em- ployees when the Hotel shutdown in September 2009 in violation of §8(a)(5) of the Act, see Hotel Bel Air, 358 NLRB 1527, 1530 (2012) 11; 2) the hiring/interview process as set forth in the Find- ings of Facts section (above); 3) the disparity between the large number of qualified former employees who applied for their prior jobs, and the small number of those employees hired by Respondent; and 4) the clearly pretextual nature of the job fair conducted by Respondent, which was riddled with inconsisten- cies and bias against former employee applicants. See Green- brier Rail Services, supra at 140–141 (citations omitted)(dis- criminatory motive can be shown by…the presence of other un- fair labor practice, the disparate treatment of the discriminatees, and evidence that the employer’s proffered explanation for the adverse action is a pretext). The record demonstrates blatant discriminatory treatment of Respondent’s former unit members, particularly in the interview process. The Board will infer an unlawful motive or animus “where the employer's action is ‘baseless, unreasonable, or so contrived as to raise a presumption of unlawful motive.” Green- brier at 141, citing J. S. Troup Electric, 344 NLRB 1009 (2005) and Montgomery Ward, 316 NLRB 1248, 1253 (1995); see also Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). In this case, for example, the evidence demonstrates that 67 former Hotel employees were eliminated after the initial interview on the basis that their interview answers were unsatis- factory, when, upon closer inspection, the record reveals that Re- spondent eliminated those applicants for reasons that were largely irrelevant (e.g. needing to have great enthusiasm and “ef- fervescence” as a housekeeper and/or busboy). Furthermore, Respondent’s interviews were structured so as to give no weight to the fact that many of the former unit em- ployees had, for years, successfully performed the jobs for which 11 Respondent’s animus toward the Union is shown in part by its un- lawful direct dealing in 2010 by bypassing the Union and offering sev- erance packages to employees in exchange for waivers of their recall they were reapplying. Additionally, Respondent clearly hired less qualified, non-former employee applicants, blatantly by- passing more qualified former employee applicants. This, as well as Respondent’s inconsistent application of its ostensibly objec- tive guidelines, indicates discriminatory motive. CNN America, Inc., supra at 458–459. Normally, an employer would prefer an employee who had previously worked for it for many years un- less their performance was substandard. The testimony of Re- spondent’s witness Maria Rangel (Rangel) confirms this (Tr. 2175–2177), as does the Board’s observation in Smoke House Restaurant, 347 NLRB 192, 196 fn. 13 (2006)(it is human nature to want to hire “known quantities.”). However, Respondent de- valued its former employees’ skills and qualifications and had no legitimate, non-discriminatory reason for doing so. Most importantly, the fact that Respondent proffered bogus reasons for why many former employee applicants failed to ad- vance passed the first round (i.e., lacked minimum qualifica- tions/skills when former employee applicant had previously & successfully performed the job for which they were reapplying for more than 10 years) while non-former employee applicants were advanced and hired who demonstrated minimum if any qualifications demonstrates Respondent’s discriminatory mo- tives. In addition, not only were many former employee appli- cants not given a departmental interview (even when Respond- ent’s own initial interviewers advanced them to the second round), but former employee applicants were given preposterous reasons why they were not moved to the second stage also estab- lishes Respondent’s discriminatory motives. Respondent has of- fered no credible explanation for why these employees were ex- cluded from the hiring process after the initial interview. Next, the disparity between the number of former Hotel em- ployees who applied and those who were subsequently rehired is astonishing. The fact that only 24 or 25 former Hotel employees were rehired out of 176 employees who applied (or stated an- other way, 152 out of 176 former employee applicants excluded) suggests a discriminatory motive. See, e.g., Glenn’s Trucking, 332 NLRB 880 (2000), enfd. 298 F. 3d 502 (6th Cir. 2002). Lastly, the clearly pretextual nature of the job fair conducted by Respondent, which was riddled with inconsistencies and bias against former employee applicants, demonstrates Respondent’s discriminatory motives. Arbizu made it clear that Respondent had no intention of dealing with the Union upon reopening. As such, I find that Respondent designed the July job fair with an objective of identifying and excluding former employee appli- cants and avoiding recognizing and bargaining with the Union. To effectuate Respondent’s purpose, I conclude that former unit member employees were invited to interview on the first morn- ing of the job fair precisely so that Respondent could distinguish them from other applicants. Again, the record strongly supports the inference that Re- spondent’s former unit employee applicants were excluded from being rehired so that Respondent could avoid hiring a majority of former Hotel unit members in violation of Section 8(a)(3) and (1) of the Act. Accordingly, I conclude that the General Counsel has more than established her prima facie case of Respondent’s discriminatory failure to rehire. At this point, the burden of persuasion shifts to Respondent to show that it would not have rehired its former employees despite rights. The Board so found in Hotel Bel-Air, 358 NLRB 1527, 1530 (2012), adopted by Hotel Bel-Air, 361 NLRB 898 (2014), enfd. Hotel Bel-Air v. NLRB, 637 Fed.Appx. 4 (D.C. Cir. 2016). KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL BEL AIR 13 their union membership/affiliation. NLRB v. Transportation Corp., 462 U.S. 393, 399−403 (1983); Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). However, Respondent’s failed to satisfy its bur- den. All of Respondent’s affirmative defenses and attempts to ex- plain why it failed to rehire an overwhelming number of former Hotel employees are wholly without merit. For example, Re- spondent spent an inordinate amount of time at the hearing trying to emphasize the changes which the Hotel underwent as a result of its remodeling. Largely through photographs of the renovated Hotel’s interior, Respondent sought to demonstrate that its im- provements to the Hotel rendered former employees’ years and decades of work experience irrelevant to their qualifications to work at the renovated property. (R Exh. 17.) However, Respond- ent’s own argument is refuted by its own witnesses and docu- mentary evidence. In fact, Respondent’s former Assistant Manager Steven Boggs (Boggs) conceded that the Hotel had been rated a five-star hotel prior to the renovation and did not achieve the same rating im- mediately upon reopening. Moreover, after comparing Respond- ent’s job descriptions for numerous bargaining unit classifica- tions in departments throughout the Hotel from before and after the renovation, Boggs conceded that the descriptions were sub- stantively identical, and the written job requirements did not change significantly as a result of the renovation. (Tr. 1717– 1726; see also GC Exhs. 9, 10.) Similarly, Respondent witness Mina Thuy Luc (Luc), who was employed as a Housekeeping dispatcher for the Hotel prior to its renovation and has been employed as a Housekeeping su- pervisor for Respondent from 2011 to the present, confirmed that the job duties and requirements for Hotel housekeepers remain largely unchanged. (Tr. 2016-19). While Boggs testified to changes in the Hotel’s food and beverage operations as a result of the post-remodeling collaboration between the Hotel and the Wolfgang Puck, he admitted that these changes necessitated spe- cialized training, rather than a distinct set of a priori qualifica- tions. (Tr. 1671–1672). Similarly, while there were invariably some differences in how the Food and Beverage Department ran prior to and after the renovation, Tracey Spillane (Spillane), a manager for the Wolfgang Puck restaurant group, who participated in Respond- ent’s hiring process, acknowledged that “everyone needed train- ing” in the Food and Beverage Department upon the Hotel’s re- opening, irrespective of their work experience and background. (Tr. 1979.) Moreover, despite that additional technological de- vices and interfaces were added to the Hotel after its renovation, Boggs admitted that employees could be trained with respect to such “technical aspects” of their job, and that the Hotel Bel-Air had provided such training to its employees in the past. (Tr. 1676-–1678, 1727–1728.) In sum, Respondent’s own witnesses fail to support its rationale that its former unit employee’s prior qualifications were irrelevant to the new job descriptions for which it sought applicants. Most importantly, the record is replete with evidence that Re- spondent proffered no legitimate explanation for why many for- mer Hotel unit employees, who were given initial interviews, were not advanced to the second round. In addition, Respondent failed to explain the anomalies as to why several other former Unit employees were excluded from consideration after the de- partmental interview. Even where there was some explanation as to why several former Hotel unit employees were excluded after the departmental interview, Respondent’s reasons were prepos- terous and beyond belief. Lastly, Respondent also failed to suf- ficiently explain how non-former employee applicants, with less experience, little to no skills, knowledge and/or qualifications for the jobs for which they applied were hired over former employee applicants who had a lengthy tenure with Respondent and had previously, successfully performed the job for which they reap- plied. Again, based on the overwhelming evidence in the record, I conclude that Respondent failed to establish that it would not have rehired its former Unit employees despite their membership in the Union and participation in prior protected concerted activ- ity. Rather, I find that Respondent excluded a majority of former bargaining unit employees for no other reason except to avoid recognizing and bargaining with the Union in violation of Sec- tion 8(a)(3) and (1) of the Act. II. RESPONDENT VIOLATED SECTIONS 8(A)(5) AND (1) OF THE ACT BY REFUSING TO RECOGNIZE AND BARGAIN WITH THE UNION UPON REOPENING A. Legal Standard In establishing whether an employer’s bargaining obligation survives a hiatus in operations, the Board distinguishes between “temporary” and “indefinite” closures and examines whether employees retained a “reasonable expectancy” of rehire. Golden State Warriors, 334 NLRB 651, 653–654 (2001); El Torito-La Fiesta Restaurants, 295 NLRB 493, 494–495 (1989), enfd. 929 F.2d 490 (9th Cir. 1991) (temporary closure of restaurant for re- modeling did not negate union's representative status or em- ployer’s bargaining obligation); Rockwood Energy & Mineral Corp., 299 NLRB 1136 (1990), enfd. 942 F.2d 169 (3d Cir. 1991) (lengthy suspension of operations did not relieve employer of bargaining obligation where laid off employees had “some ex- pectancy of recall.”). If a closure is determined to be temporary and employees are found to have a reasonable expectancy of rehire, the union’s sta- tus as § 9(a) collective bargaining representative and the em- ployer’s bargaining obligation are deemed to survive the closure and continue upon reopening. The employer must respect the pre-closure status quo and may not implement new terms and conditions of employment without first bargaining with the un- ion. B. Analysis Record evidence is clear that Respondent should have recog- nized and bargained with the Union after it reopened in October 2011. Specifically, the record reveals that Respondent and the Union were parties to a series of CBAs, the most recent of which was in effect from August 16, 2006 to September 30, 2009, the date the Hotel closed for renovations. The evidence clearly sup- ports the fact that the shutdown of the Hotel was planned as tem- porary renovation. Moreover, in 2016, the U.S. Court of Appeals for the District of Columbia enforced the Board’s order requiring Respondent to bargain with Union over the effects of the tempo- rary shutdown. Lastly, and most importantly, there is a rebuttable presump- tion that the Union enjoyed majority support after the expiration of its CBA with Respondent. Thus, Respondent’s collective bar- gaining relationship with the Union survived the hiatus, see 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Golden State Warriors, 334 NLRB 651, 653–654 (2001),12 and accordingly, it was obligated to recognize and bargain with the Union over the effects of the shutdown and the rehiring process pursuant to the pre-closure CBA. See Golden State Warriors, supra. Respondent violated Section 8(a)(5) and (1) by refusing to do so.13 III. RESPONDENT VIOLATED SECTIONS 8(A)(5) AND (1) OF THE ACT BY MAKING UNILATERAL CHANGES TO THE TERMS AND CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT MEMBERS UPON ITS REOPENING A. Legal Standard An employer which has a bargaining relationship with the Section 9(a) bargaining representative of its employees, such as the Union in this case, cannot make changes in the terms and conditions of employees represented by that union without bar- gaining to impasse with the Union about the proposed changes, Golden State Warriors, supra, at 652. B. Analysis Because Respondent was required, but failed, to recognize and bargain with the Union upon its reopening (See sec. II, above), Respondent also violated Sections 8(a)(5) and (1) of the Act when it made unilateral changes to the terms and conditions of its unit employees’ employment contrary to the terms set forth in the expired CBA. Specifically, Respondent failed to bargain with the Union to impasse before it unilaterally contracted out certain gardening, maintenance and painter work, changed em- ployees’ rates of pay, vacation, sick leave and paid time off, al- tered the terms/conditions of employee’s meals and breaks, failed to contribute to the Union’s retirement, legal, health and welfare funds, changed how it calculated seniority status, and how employees are compensated during attendance at mandatory meetings. Thus, in setting terms and conditions of employment different than those set forth in the expired CBA without first bargaining to impasse with the Union, Respondent violated Sections 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent Kava Holdings, LLC, d/b/a Hotel Bel Air, Los Angeles, California, is an employer within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Respondent violated Sections 8(a)(3) and (1) of the Act when it discriminatorily failed/refused to rehire job applicants who were members of the bargaining unit upon the Hotel’s Oc- tober 14, 2011 reopening. 12 Golden State involved a temporary shutdown of their home venue for over a year. During this time, the Golden State Warriors played their home games in San Jose, rather than at their normal venue in Oakland. However, the bargaining relationship between the NBA and the Warriors survived despite this temporary change in venue. 13 Moreover, as shown above, but for Respondent’s discriminatory hiring practices, former Hotel unit member employees would have con- stituted a majority of the bargaining unit upon reopening of the hotel in 2011. 14 Counsel for Respondent Arch Stokes, Karl Terrell and Diana Dow- ell demonstrated intolerable behavior throughout the hearing toward General Counsel, Charging Party counsel and I. Respondent counsel were notified several times about and ordered to cease/desist their con- tumacious conduct via multiple Orders that have been made a part of the record. See ALJ Exhs. 11–13, 22–24, 29–30, 35, 40, 42, 44, 46. 52, 55– 56, Order Denying Respondent’s Request for More Time to Obtain Co- 3. Respondent violated Sections 8(a)(5) and (1) of the Act when it failed/refused to recognize and bargain with UNITE HERE Local 11 upon its reopening. 4. Respondent violated Section 8(a)(5) and (1) of the Act when it made unilateral changes to the terms and conditions of employment of bargaining unit members upon its reopening.14 REMEDY Respondent, having discriminatorily refused to hire its former unit member employees, must offer them reinstatement and make them whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Respondent shall compensate these employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed their interim earnings, computed as described above. See King Soopers, 364 NLRB No. 93 (2016). Respondent shall file a report with the Regional Director for Region 31 allocating backpay to the appropriate calendar quar- ters. Respondent shall also compensate the discriminatees for the adverse tax consequences, if any, of receiving one or more lump- sum backpay awards covering periods longer than one (1) year. See AdvoServ of New Jersey, 363 NLRB 1324 (2016). Respondent is also ordered to recognize UNITE HERE Local 11 forthwith, and, on request, bargain with UNITE HERE Local 11 as the exclusive representative of the employees in the appro- priate unit concerning all terms and conditions of employment. Respondent is further ordered to cease and desist from making any unilateral changes to bargaining unit employees’ terms and conditions of employment without bargaining to impasse with UNITE HERE Local 11. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15 ORDER Respondent, Kava Holdings, LLC, d/b/a Hotel Bel Air, Los Angeles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire employees who were members of the Un- ion’s bargaining unit prior to the temporary shutdown of the ho- tel in September 2009 in an attempt to avoid the obligation to recognize and bargain with UNITE HERE Local 11 as the exclu- sive collective bargaining representative of the hotel’s unit Counsel and/or Seek Permission to file a Special Appeal to the National Labor Relations Board, dated May 11, 2018 and Order Denying Re- spondent’s Second Request to Admit Respondent’s Proposed Exhibits 110 and 112 into Evidence dated July 10, 2018. Respondent counsel also were notified several times during the hearing that I would refer their conduct to the Board’s Associate General Counsel, Division of Opera- tions-Management for further review. As such, I am again serving notice to counsel for Respondent that, contemporaneous with the issuance of this decision, their conduct will now be referred to the Board’s Associate General Counsel, Division of Operations-Management or his/her de- signee. 15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL BEL AIR 15 employees. (b) Failing to recognize and bargain with UNITE HERE Lo- cal 11 as the exclusive collective-bargaining representative of the employees in the bargaining unit. (c) Unilaterally making changes to the terms and conditions of employment of bargaining unit members without bargaining to impasse with UNITE HERE Local 11. (d) 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 effectu- ate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer the employees named in the attached Appendix A of the amended complaint,16 full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his or her seniority or any other rights or privileges previously enjoyed. (b) Make the employees named in the attached Appendix A of the amended complaint whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci- sion. (c) Compensate the discriminatees for the adverse tax conse- quences, if any, of receiving one or more lump-sum backpay awards covering periods longer than 1 year. Compensate the dis- criminatees for their search-for-work and interim employment expenses regardless of whether those expenses exceed their in- terim earnings. (d) Upon request of UNITE HERE Local 11, rescind any uni- lateral change made to the terms and conditions of employment of bargaining unit employees since September 30, 2009. (e) File a report with the Regional Director for Region 31 al- locating backpay to the appropriate calendar quarters. (f) On request, bargain with UNITE HERE Local 11 as the exclusive representative of the employees in the appropriate bar- gaining unit concerning terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement. (g) 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 or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due un- der the terms of this Order. (h) Within 14 days after service by the Region, post at its Los Angeles (Bel-Air), California hotel copies of the attached notice marked “Appendix”17 in both English and Spanish. Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by Respondent’s authorized representa- tive, shall be posted by Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to phys- ical posting of paper notices, the notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent 16 See GC Exh. 51. 17 If this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading “Posted by Order of the National customarily communicates with its employees by such means. 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, Re- spondent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate 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 July 26, 2011. (i) 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 Re- spondent has taken to comply. Dated, Washington, D.C. December 19, 2019 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT refuse to hire you in an attempt to avoid the ob- ligation to recognize and bargain with UNITE HERE Local 11 as the exclusive collective bargaining representative of our bar- gaining unit employees. WE WILL NOT fail and refuse to recognize and bargain with UNITE HERE Local 11 as the exclusive collective bargaining representative of our employees in the bargaining unit. WE WILL NOT make unilateral changes to the terms and condi- tions of your employment without bargaining to impasse with UNITE HERE Local 11. 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, on request, bargain with the Union, UNITE HERE Local 11 and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit. WE WILL, on request, rescind any unilateral changes we have made to the terms and conditions of your employment since Sep- tember 30, 2009. WE WILL within 14 days from the date of the Board’s Order, offer the employees named in the attached Appendix A of the amended complaint full reinstatement to their former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to their seniority or any other rights or Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD privileges previously enjoyed. WE WILL make the employees named in the attached Appendix A of the amended complaint whole for any loss of earnings and other benefits resulting from our refusal to hire them, less any net interim earnings, plus inter- est compounded daily. WE WILL file a report with the Social Security Administration allocating backpay to the appropriate calendar quarters. WE WILL compensate the employees named in the attached Appendix A of the amended complaint for the adverse tax con- sequences, if any, of receiving one or more lump-sum backpay awards covering periods longer than 1 year. WE WILL compensate the employees named in the attached Appendix A of the amended complaint for their search-for-work and interim employment expenses regardless of whether those expenses exceed their interim earnings. KAVA HOLDINGS,LLC, ET AL., D/B/AHOTEL BEL-AIR The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-074675 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. KAVA HOLDINGS, LLC, ET AL. D/B/A HOTEL BEL AIR 17 APPENDIX A 1. Adam Gardner 37. Esteban Pacheco 71. Jose Manzo 2. Alberto Duran 38. Evaristo 72. Jose Mojarro 3. Alex Barrios Vasconcelos 73. Jose Polio 4. Allyson 39. Feliciano Viscarra 74. Jose Pavon Tison/Tizon 40. Felipe Vasquez 75. Jose Pinedo 5. Amanda Escobar , 41. Felix Gonzales 76. Joseph Nava 6. Ana Arrozola 42. Fortino Luis 77. Juan Carlos Pavon. 7. Angel Loeches Martinez 78. Juan Contreras 8. Anthony Hop Pham 43. Francisco Alas 79. Julio Cruz 9. Antonio Diaz 44. Gilberto A. Moran 80. Julio Pedro Perez 10. Antonio Escobedo 45. Gilberto Diaz 81. Justino Castellon 11. Antonio Romero 46. Giovanni 82. Karoly Zsiga 12. Armando Rodriguez 83. Kenny McCabe Alvarenga 47. Guadalupe Soto 84. Khenk Lee 13. Armida Huezo 48. Hector Jimenez 85. Laura Fergusson 14. Arturo Leon 49. Hermina Urbana 86. Leslie Miller 15. Beatriz Lemis 50. Hignio Castellon 87. Manuel Giron 16. Boris Shaetz 51. Howie Witz 88. Maria Del Cid 17. Borislav 52. Ignacio Escobedo 89. Maria Gomez Kostadinov 53. Inigo De La 90. Maria Lourdes 18. Bradley Anderson Hidalga Nolasco 19. Carlos Burgos 54. Irrna Zavala 91. Maria Antoinette 20. Carlos Gutierrez 55. Ismael Casanova Albano Gonzales 21. Carlos Perez 56. Ismael Witz 92. Mario Rodriguez 22. Carmen Casiano 57. Ivan Stankov 93. Martin Orozco 23. Chad Biagini 58. Jacques Felix 94. Matthew Biedel 24. Corina Ivanna 59. Jaime Bravo , 95. Miriam Ganame 60. Jehane Delwar Martirosyan 25. Cristian Vargas 61. Jennifer Contreras 96. Mishele Tapia 26. Danielle Rodriguez 62. Jennifer Jimenez 97. Mohammed 27. Davis Komarek 63. Jeremias Del Cid Masum 28. David Leger 64. Yixiong "Jimmy" 98. Narciso Lopez 29. Delmy Alas Dong 99. Ngoc Mihn Hoang 30. Domingo Antonio 65. Joaquin Fuentes 100. Nora Melendez 31. Edgar Cano 66. Jorge Duarte 101. Oscar Flores 32. Edith Calderon , 67. Jose Bojorquez 102. Oscar Galdamez 33. Elizabeth Bono 68. Jose de Jesus 103. Oscar Ingles 34. Emilio Molina Garcia 104. Oscar Martinez 35. Eric Flores 69. Jose Luis Gaeta 105. Oscar Vasquez 36. Erick Orozco 70. Jose Madrid 106. Pablo Del Real 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 107. Patricia Miranda 108. Pedro Hernandez 109. Pedro Morales Sanchez 110. Rafael Guevarra 111. Rafael Martinez 112. Raul Salazar 113. Raymundo Avina 114. Refugio Lopez 115. Rejo Jastoreja 116. Rigoberto Carrillo 117. Rigoberto Contreras 118. Robert "Charlie" Hargitay 119. Roberto Dominguez 120. Roel Andres 121. Roger Jackson 122. Ronald Hartling 123. Rosa Perez 124. Rudy Castellanes 125. Salvador Gonzales 126. Salvador Maldonado 127. Sapardjo Diporedjo 128. Sergio Manzo 129. Sonia Mancias 130. Sonia Reyes 131. Steve Rasmussen 132. Tomas Alvarado 133. Tomas Ramirez 134. Ulises Trejo 135. Victor Pacheco 136. Victor Venegas 137. Virginia Cruz 138. William Carranza APPENDIX A 139. Wilson Alvaro