A court has found that the Terranea Resort in Rancho Palos Verdes unlawfully fired a cook for trying to organize his coworkers into a union and speaking to the media about it.
In a May 14 ruling, the D.C. Circuit Court of Appeals upheld a National Labor Relations Board finding that the upscale, 600-room resort discharged sous chef Freddy Lovato in August 2018 in retaliation for his union activity.
Terranea disputes the ruling, saying Lovato was fired for failing to follow the resort’s food-safety protocols.
Unite Here Local 11 initiated a campaign to organize the resort’s workers in 2017, and Lovato was part of the organizing committee. In March 2018, he participated in a delegation that sought to meet with the resort’s president about the campaign.
The court found Terranea management responded to Lovato and his coworkers by requiring them to attend mandatory anti-union meetings. At one session, the court said, the resort’s president warned workers that the union would represent them “over my dead body.”
They have yet to successfully unionize.
Weeks before Lovato was fired, a guest ordered a gluten-free pizza that was not properly prepared, resulting in the guest being hospitalized after suffering an allergic reaction.
Events surrounding the pizza’s preparation are disputed, but no one was disciplined in that May 19, 2018 incident. Six days later, however, Lovato was issued a “final” written warning for reportedly failing to catch the mistake by a coworker who prepared a gluten-free mac-and-cheese dish that caused a child to vomit because of an allergic reaction.
The court rejected Terranea’s argument that Lovato was a “statutorily exempt supervisor,” and therefore not subject to protections of the National Labor Relations Act. While junior sous chefs oversaw the cooking line, checked the dishes and sometimes monitored the kitchen alone, they did so according to detailed instructions, according to the ruling.
The court said the resort’s final warning bypassed the company’s progressive discipline policy and that Lovato was dealt with more harshly than the co-worker who made the dish.
Terranea conducted a “cursory investigation,” the court said, with Lovato’s supervisor speaking with him and his coworker for “less than a minute about the incident.”
Lovato was fired Aug. 13, 2018, five days after he was told to change the sauce on some chicken wings but chose to instead rinse them in water and place them in a walk-in cooler.
Unite Here filed a charge on Feb. 3, 2020, with the NLRB, alleging he was fired for his pro-union advocacy.
In a statement issued Monday via email, Terranea said it remains “disappointed” in the court’s ruling, as it failed to uphold Lovato’s termination for not following the resort’s “stringent food-safety program.”
The resort said it is considering its legal options.
“Terranea has a reputation for quality and there is nothing more important than the safety and well-being of our guests, visitors and employees,” Terranea President Terri A. Haack said. “Our unwavering commitment to excellence and everyone’s well-being are too important for us to compromise.”
The court found that NLRB had ample basis to conclude Terranea retaliated against Lovato for his activism.
The decision means Terranea — jointly owned by Lowe Enterprises and JC Resorts — must immediately reinstate Lovato with back pay and issue a notice to employees pledging to respect workers’ federal labor rights.
The amount of damages has yet to be determined, but Unite Here attorney Jeremy Blasi figures back wages alone will likely exceed $50,000.
“What this means is that the company will have to pay him for any wages and benefits he would have earned at the Terranea but for his termination dating back to August 13, 2018, assuming he was looking for work and thus ‘mitigating his damages,’ ” Blasi said via email.
“I know Lovato was unemployed and looking for work for a long stretch following his termination prior to the pandemic and that he now makes less in his current job than he did at Terranea,” he said.
Kurt Petersen, Unite Here 11’s co-president, said the court’s decision is a victory for Lovato and his co-workers.
“Freddy was fired because he spoke up about unfair working conditions,” Petersen said. “He will return to work as a hero.”