Maui Surf Hotel Co.

National Labor Relations Board - Board Decisions

Apr 14, 1978

235 N.L.R.B. 957 (N.L.R.B. 1978)

MAUI SURF HOTEL COMPANY
Maui Surf Hotel Company and Jeremy Naha
ILWU Local 142, Maul Division and Jeremy Naha.
Cases 37-CA-1301 and 37-CB-327
April 14, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 29, 1977, Administrative Law Judge
Mart'n S. Bennett issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent Union filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that (1) the
Union did not violate Section 8(b)(2) and (1)(A) of
the Act by causing the Employer to require certain of
its employees to cease work and forfeit an hour's pay
to attend a union meeting on the Employer's prem-
ises and (2) the Employer did not violate Section
8(a)(3) and (1) of the Act by complying with the
Union's request in that regard. We disagree.
The Employer, a hotel with 330 to 360 employees,
is a party to a contract between the Hotel Associa-
tion of Hawaii and the Union which contains the
following provision relating to stop-work meetings.
At the written request of the Union made at least
one (1) week in advance stop-work meetings may
be arranged at a date and hour mutually agree-
able to the parties. It is recognized that all
employees cannot attend such stop-work meet-
ings because it is necessary in hotel operations to
adequately take care of the Hotel guests and
protect the Hotel property. The Hotel shall
inform the Union of the employees designated to
remain at work while a stop-work meeting is in
progress. It is expected that stop-work meetings
will be held infrequently and only when neces-
sary. The Union will advise the Hotel in advance
of the expected duration of each stop-work
meeting.
I All dates below refer to 1976.
235 NLRB No. 134
Pursuant to the foregoing provision, Union Offi-
cials John Arisumi and Donald Rickard met in early
October 19761 with Karl Rathgeb, the Employer's
general manager, to discuss a request by the Union
for a stop-work meeting on the premises of the
Employer for the principal purpose of holding a
referendum on several amendments to the Union's
constitution and secondarily to present union-en-
dorsed candidates for political office. The parties
agreed to schedule such meetings on October 12 at 8
a.m., 10:30 a.m., and 4 p.m. At the urging of the
union officials, Rathgeb promised that he would
instruct the department heads to designate employ-
ees essential for the continued operation of the hotel
and to release all other employees for I hour to
attend one of the meetings.
On October 7 or 8, Jeremy Naha, Kawehi Lindsey,
Patricia Counselman, and Rosemary Auwae, who
were desk clerks, 2 informed Front Office Manager
Bernice Patricia Duarte that they did not wish to
attend the meeting. Duarte then consulted Resident
Manager William Baxter. The latter stated that the
Employer was required under the contract to release
all employees who could be spared and pointed out
that the Union felt that the Employer was not
complying with that obligation. Baxter added that
employees refusing to attend should sign a paper to
that effect.
On October 12, Rickard came to Duarte's office
before 8 a.m. to ask her to make sure to release as
many employees as possible to attend the meeting.
Duarte replied that she had "assigned certain em-
ployees to go to certain meetings." However, Duarte
did not at that time tell Rickard that some employees
were unwilling to attend.
A short while later, the employees reiterated their
position and, at Duarte's request, signed a paper
stating that their nonattendance at the meeting was
voluntary. However, Naha and Lindsey soon thereaf-
ter reported to Duarte that they had heard that they
must attend the meeting. Duarte thereupon checked
with Personnel Manager Pat Fujikawa as to the
accuracy of the rumor. Fujikawa replied that all
employees who could be spared must be released
because of the contract. She also asserted that the
document signed by the employees would have to be
destroyed because it constituted a "violation" of the
contract. Duarte then told Naha and Counselman
that she (Duarte) had been instructed to tear up the
document and that they would be released for the
10:30 meeting. Naha, whose working schedule ex-
2 Also known as front office employees.
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tended from 7 a.m. to 3 p.m., expressed her will-
ingness to attend the 4 o'clock meeting.3
At Rathgeb's suggestion, Duarte informed Rickard
and Arisumi that the front office employees preferred
attending the 4 o'clock meeting in order not to lose
an hour's pay. Arisumi replied that what the employ-
ees did during the hour was their business but it was
the Employer's contractual obligation to release at a
designated time all employees who could be spared.
Duarte conveyed this message to Rathgeb and told
six front office employees 4 that the Union insisted
that they be released from work. When Naha
continued to object to Duarte's order to sign out and
leave the premises for I hour, 5 Duarte warned that if
they remained at their desks, they would be issued a
"Conduct and Ability Report for insubordination"
which would go into their personnel records.6 The
front office employees thereupon signed out under
protest but did not attend the stop-work meetings.
Our dissenting colleague takes the position in
agreement with the Administrative Law Judge that
the Respondents herein did not engage in unlawful
conduct on the ground that the Union coerced no
employees to attend the meetings. Although he
observes that the six employees involved herein were
told that they did not have to attend these union
meetings, he misconceives the issue in failing to give
appropriate weight to the improper pressure exerted
by the Respondents on employees who did not wish
to attend the union meetings. That the employees
were not compelled to do so is not dispositive of the
coercion issue. The vice of the Respondents' conduct
is that those employees, who chose to remain at work
and to exercise their statutory right to refrain from
union activity, were subjected to duress when they
were threatened by the Employer with an adverse
citation of insubordination and were thus pressured
into signing out with the consequent loss of an hour's
pay.7
In view of the resort to the foregoing sanction,
which was designed to penalize the front office
employees for refraining from union activity, we
conclude that the Union and Employer respectively
violated Section 8(b)(2) and (1)(A) and Section
8(a)(3) and (1) of the Act. Accordingly, we shall
3 Duarte testified that Naha was not allowed to attend at that time
"because it had to be a stop-work meeting and could not be after" an
employee's working hours.
4 Naha, Lindsey, Counselman, Auwae, Ann Lopes, and Sharon Abay-
Abay.
5 Duarte also stated that what the employees did during that time was up
to them.
6 Naha also complained to Rathgeb that it was "unfair" to force
employees to go to the union meeting or to force them to sign out with the
consequent loss of I hour's pay even if the employees did not attend the
meeting. Rathgeb responded that the Employer was bound by the contract.
I Contrary to our dissenting colleague, we do not question the propriety
of the contractual provision which permits the holding of stop-work
meetings of the Union but does not require the disciplining of employees for
order Respondent Employer, jointly and severally
with the Respondent Union, to make whole employ-
ees Jeremy Naha, Kawehi Lindsey, Patricia Counsel-
man, Rosemary Auwae, Ann Lopes, and Sharon
Abay-Abay for the loss of earnings suffered as a
result of their being unlawfully pressured into signing
out on October 12, 1976.8 We shall also order the
Respondents to cease and desist from the foregoing
conduct.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Maui Surf Hotel Company, Maui,
Hawaii, its officers, agents, successors, and assigns,
shall:
i. Cease and desist from:
(a) Requiring employees, who wish to continue
working during their regularly scheduled hours, to
sign out and lose their pay when stop-work meetings
take place at the Employer's premises.
(b) Threatening to penalize employees with the
charge of insubordination if they persist in refusing
to sign out during stop-work meetings.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Jointly and severally with ILWU Local 142,
Maui Division, make whole, as prescribed above,
Jeremy Naha, Kawehi Lindsey, Patricia Counsel-
man, Rosemary Auwae, Ann Lopes, and Sharon
Abay-Abay for the loss of earnings suffered as a
result of their being pressured into signing out on
October 12, 1976.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other data relevant to compliance with paragraph
2(a) above.
not attending such meetings. As indicated above, it is the coercive manner
of its application that we find unlawful. The cases relied on by him; namely,
Duquesne University of the Holy Ghost, 198 NLRB 891 (1972); Sunnen
Products, Inc., 189 NLRB 826 (1971); and Coamo Knitting Mills, Inc., ISO
NLRB 579 (1964), are inapposite as they, unlike the instant proceeding
which involves the issue of coercing employees to stop work and lose pay
while union meetings were held on the premises, only dealt with the
propriety of the employer's allowing union meetings on its premises and
found that such conduct of the employer was permissible. In this connec-
tion, the Board in Sunnen Products, supra, stated that "the result might well
be different were other coercive factors present."
I See Florida Steel Corporation, 231 NLRB 651 (1977), as to the manner
of computing interest. See also Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
958
,.~.ul suRF HOTEL COMPANY
(c) Post at its place of business at Kaanapali Beach,
Maui, Hawaii, copies of the attached notice marked
"Appendix A." 9 Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by the Employer's representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Upon being furnished with "Appendix B," post
the notice marked "Appendix B" in the same manner
as "Appendix A."
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Employer has taken to comply
herewith.
B. Respondent ILWU Local 142, its officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Causing or attempting to cause Maui Surf Hotel
Company to require employees, who wish to con-
tinue working during their regularly scheduled hours,
to sign out and lose their pay when stop-work
meetings are taking place.
(b) In like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Maui
Surf Hotel Company make whole, as prescribed
above, Jeremy Naha, Kawehi Lindsey, Patricia
Counselman, Rosemary Auwae, Ann Lopes, and
Sharon Abay-Abay for the loss of earnings suffered
as a result of their being pressured into signing out
on October 12, 1976.
(b) Post at its offices and meeting hall copies of the
attached notice marked "Appendix B."10 Copies of
said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
the Union's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by the Union to insure that said
notices are not altered, defaced, or covered by any
other material.
9 In the event that 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
(c) Mail signed copies of the notice (Appendix B)
for posting by Maui Surf Hotel at all places where
notices to its employees are customarily posted.
(d) Notify the Regional Director for Region 20, in
writing, within 10 days from the date of this Order
what steps the Union has taken to comply herewith.
MEMBER JENKINS, dissenting:
I disagree with my colleagues' conclusion that the
Respondents violated Section 8(a)(3) and (1), and
8(b)(2) and (I)(A) when they agreed and gave effect
to a contractual provision permitting the Union to
call occasional stop-work meetings. In my opinion,
the provision validly encouraged, without coercion,
greater member participation in union affairs and
thus contributed to a more meaningful and stable
collective-bargaining relationship.
The relevant contract provision permits the Union
to call, when necessary and upon proper advance
notice to the Employer, stop-work meetings to
resolve important matters such as ratification of
amendments to the Union's constitution. The Em-
ployer permitted the meetings to take place on its
premises during working hours and the Union agreed
that employees would not be paid during the time of
the meetings. In addition, the parties arranged that
several meetings would be conducted during the day
to insure that crucial jobs were always manned and
that all employees had an opportunity to attend a
meeting. Thus, each employee would be released
from work for I hour on the appointed day either to
attend a union meeting or to do as he or she pleased.
In either case, however, the employee was not paid
for that hour. The Charging Party herein objects to
this arrangement and claims that he was unlawfully
threatened with discipline or discharge when he
refused to cease work and clock out under this
procedure.
The Administrative Law Judge recommended that
we dismiss the complaint, reasoning that neither the
Employer nor the Union coerced anyone to attend
the meetings. Nor, he continued, did the forfeiture of
I hour in wages discriminate between persons attend-
ing the meetings and those not attending the meet-
ings. My colleagues, however, would find sufficient
coercion in the Employer's threats to discipline or
discharge employees who refused to cease work and
forfeit I hour in wages on the day of the meeting.
In my opinion, my colleagues are in error when
they find unlawful coercion in the Employer's threat
to discipline employees for refusing to cease work for
I hour without pay. This coercion related to hours of
work and not union or other concerted activities. As
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
10 See fn. 9.
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found by the Administrative Law Judge, no one was
coerced into attending the union meetings. Nor was
there any discrimination against persons who chose
not to attend the meetings. The contract merely
required all employees to cease work for I hour for
which they would not be paid. Since employees were
at liberty to spend the hour off in any manner they
desired, such a contract provision is no more coer-
cive than one which provides for an unpaid lunch
hour, although some employees might prefer to work
rather than take lunch; or one calling for a 35-hour
work week, although some employees might prefer to
work 40 hours.
It has long been the policy of the Act and the
Board to permit certain types of contractual provi-
sions, admittedly benefiting the union at the expense
of individual unit members, where they serve the
purpose of fostering efficient collective bargaining.
For example, the Act permits certain types of union-
security agreements, notwithstanding their obvious
tendency to encourage union membership. Similarly,
a union and an employer may agree that union
stewards shall enjoy superseniority with respect to
layoffs and rehire, since the stability of the steward
system is considered necessary to the effective
functioning of grievance machinery. Dairylea Cooper-
ative Inc., 219 NLRB 656 (1975), enfd. sub nom.
N.L.R.B. v. Milk Drivers & Dairy Employees, Local
338, International Brotherhood of Teamsters, 531 F.2d
1162 (C.A. 2, 1976). See Aeronautical Industrial
District Lodge 727 v. Campbell, 337 U.S. 521 (1949).
The appropriate litmus test for such contractual
provisions is whether they serve a "legitimate statuto-
ry purpose" and whether any coercive effects they
may have on Section 7 rights constitute "an inciden-
tal side effect of a more general benefit accorded all
employees." Dairylea Cooperative, supra at 658.
Moreover, we also have held that we will not lightly
set aside provisions of collective-bargaining agree-
ments negotiated in apparent good faith which are
"neither clearly inconsistent with the Act's underly-
ing rationale, nor the product of a clear intent to
violate the Act." Brown & Williamson Tobacco
Company, 227 NLRB 2005 (1977).
Contrary to my colleagues, I believe the Respon-
dents here have satisfied their burdens. They have
attempted merely to provide a system whereby it is
convenient for union members to participate in the
formulation of union policy. Certainly, facilitating
union democracy is not inconsistent with the nation-
al labor policy. Indeed, the national labor policy
favors the participation of members in the gover-
nance of their unions." Nor do I believe that the
Employer's threat to discipline as insubordinate
those employees who refused to cease work pursuant
to the contract, even if it somehow be construed as
involving coercion relevant to Section 7, violated the
Act where it made no attempt to induce employees to
attend the union meetings. The Employer's action,
while subjecting the Charging Party to serious
consequences, is far less drastic than the discharge of
an employee because of the superseniority of a
steward. 2 Thus, such incidental coercion as may
exist surely must be outweighed by the parties'
legitimate goal of facilitating member participation
in the Union.
My colleagues concede the validity of the contract
provision for stop-work meetings but find statutory
violations because the manner of its application is
coercive. The manner of application, however, was
nothing more than compliance with the contract
provision. As required by the contract, the complain-
ing employees were told that there would be a
nonwork hour for which they would not be paid and
that they would be disciplined for insisting on the
Employer's noncompliance with the contract. Would
my colleagues find the noncoercive application of the
contract provision only in its breach?
Finally, the rule proposed by the majority appears
to be inconsistent with prior Board law. It is well
settled that an employer may, without violating
Section 8(a)(2), permit a union to conduct meetings
on its premises during company time, absent signifi-
cant indicia of an intent to favor it over another
union. See Duquesne University, 198 NLRB 891
(1972); Sunnen Products, Inc., 189 NLRB 826 (1971);
Coamo Knitting Mills, Inc., 150 NLRB 579 (1964). It
thus seems anomalous to hold, as does the majority,
that the failure of the Employer to subsidize its
employees' union activities, by paying employees
who attend the meetings together with those who do
not attend, converts an otherwise permissible scheme
into impermissible coercion.
Accordingly, in light of the overriding public policy
favoring member participation in the formulation of
union policy and the comparatively slight, if any,
coercive aspects of the procedures employed in this
case, I would affirm the Administrative Law Judge's
dismissal of the complaint.
1 See, generally, Labor-Management Reporting and Disclosure Act of
1959, 29 U.S.C. § 401-531.
12 While of course the employees were "coerced" into ceasing work,
there is no evidence that employees were coerced into attending meetings or
otherwise engaging in union activity, or penalized for declining to engage in
such activity. I believe such evidence was crucial to finding a violation since
I can conceive of no inherent tendency to coerce in these circumstances. Cf.
Zorach v. Clauson, et al., Constituting the Board of Education of the City of
New York, 343 U.S. 306(1952).
960
MAUI SURF HOTEL COMPANY
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
present evidence and arguments, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and carry out its terms.
WE WILL NOT require employees who wish to
continue working during their regular hours to
sign out and lose their pay when stop-work
meetings take place at the Employer's premises.
WE WILL NOT threaten to penalize employees
with the charge of insubordination if they refuse
to sign out during stop-work meetings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
WE WILL reimburse with interest Jeremy Naha,
Kawehi Lindsey, Patricia Counselman, Rosemary
Auwae, Ann Lopes, and Sharon Abay-Abay for
the loss of pay suffered as a result of their being
unlawfully pressured into signing out on October
12, 1976.
MAUI SURF HOTEL
COMPANY
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the chance to
present evidence and arguments, the National Labor
Relations Board has found that we violated the
National Labor Relations Act and has ordered us to
post this notice and carry out its terms.
WE WILL NOT cause or attempt to cause Maui
Surf Hotel Company to require employees who
wish to continue working during their regularly
scheduled hours to sign out and lose their pay
when stop-work meetings are taking place.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed in Section 7 of the National
Labor Relations Act, as amended.
WE WILL reimburse with interest Jeremy Naha,
Kawehi Lindsey, Patricia Counselman, Rosemary
Awae, Ann Lopes, and Sharon Abay-Abay for
the loss of pay as a result of their being unlawfully
pressured into signing out on October 12, 1976.
ILWU LOCAL 142,
MAUI DIVISION
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETr, Administrative Law Judge: This
matter was heard at Maui, Hawaii, on April 12, 1977. The
complaint, issued February 4, 1977, and based upon
charges filed October 18, 1976, by Jeremy Naha, an
individual, against the Respondent Employer, Maui Surf
Hotel Company, in Case 37-CA-1301, and against the
Respondent Union, ILWU Local 142, Maui Division, in
Case 37-CB-327, both referred to herein as Respondents,
alleges that Respondent Employer has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) and that Respondent Union has engaged in unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act. Briefs have been submitted by the General
Counsel and Respondent Union. It may be noted that the
transcript of testimony was most accurate.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Maui Surf Hotel Company is a Hawaiian partnership
with its place of business in Maui, Hawaii, where it is
engaged in the operation of a resort hotel. It annually
enjoys gross revenues in excess of $500,000 and purchases
and receives goods valued in excess of $50,000 directly
from suppliers located outside the State of Hawaii. I find
that the operations of Respondent Employer affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
ILWU Local 142, Maui Division, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction, Sequence of Events
Respondent Employer is a party to a contract between
the Hotel Employers Association of Hawaii and the Union.
This contract became effective November 7, 1975, and was
to remain in effect through August 31, 1977, absent 60 to
75 days' notice prior to the latter date by either party of
intent to modify, amend, or terminate said agreement.
Some 16 employers are signatory or bound thereto and
approximately 3,000 employees are covered thereby. The
contract contains a provision relating to stop-work meet-
ings which reads as follows:
961
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the written request of the Union made at least one
(I) week in advance stop-work meetings may be
arranged at a date and hour mutually agreeable to the
parties. It is recognized that all employees cannot
attend such stop-work meetings because it is necessary
in hotel operations to adequately take care of the Hotel
guests and protect the Hotel property. The Hotel shall
inform the Union of the employees designated to
remain at work while a stop-work meeting is in
progress. It is expected that stop-work meetings will be
held infrequently and only when necessary. The Union
will advise the Hotel in advance of the expected
duration of each stop-work meeting.
The gravamen of the complaint is that Respondent
Union caused employees to cease work and forfeit 1 hour
of pay and that Respondent Employer, on October 12,
1976, duly complied with this request. The theory of the
General Counsel is that Respondents were not entitled to
deprive employees of pay for I hour for reasons other than
failure to pay dues or initiation fees. Six employees of
Respondent Employer are the only ones involved in the
instant case. The General Counsel contends that Respon-
dent Employer should not have complied with this request
or demand by Respondent Union.
There is ample evidence to show that the purpose of this
contract language is to facilitate attendance at special
union meetings convened once or twice a year for union
matters deemed important. In accordance with this con-
tract language, the Union sought the permission of the
Employer to conduct stop-work meetings and was granted
such permission to schedule three for October 12, 1976.
The purpose was to present proposed amendments to the
constitution of the Union.'
Two meetings were scheduled for the morning of
October 12 and a third at 4 p.m. that same day. All
employees who could be spared were duly released from
work for I hour on that day. Some attended the meetings
and some did not. No one was compelled to attend a
meeting and there was no fine or discipline in any way for
nonattendance. The instant case stems basically from the
Charging Party, Naha, who was a desk clerk with hours
from 7 a.m. to 3 p.m., who asked to attend the 4 p.m.
meeting so that she would not lose I hour's pay. There were
six people in this category as it ultimately evolved. It may
be noted that one of the six, Counselman, was later
promoted to a supervisory position. Naha, in fact, went to
the cafeteria, as did others. No union representatives were
present.
I They also utilized the opportunity to present candidates for political
office.
None of the six were paid for this 1-hour period and no
one was paid for attending the stop-work meeting. Indeed,
it could well be argued that Respondent Employer could
be charged with improper assistance to the Union within
the meaning of Section 8(a)(2) of the Act by paying
employees for attending such meetings.
The evidence clearly demonstrates that the employees in
no way were ordered to attend the meeting. Indeed, the
employees, about 330 to 360 in number, did as they saw fit
and General Manager Karl Rathgeb and Front Office
Manager Bernice Duarte uncontrovertedly testified, and I
so find, that they did not care whether the employees
attended and in fact so told them. And, in the case of
Naha, it is clear that she was scheduled to attend one of the
two morning meetings and wished to attend the afternoon
meeting.
There is nothing to show that the purpose of Respondent
Union in negotiating these stop-work meetings was not in
good faith and honesty. Its objective to have member
participation in meetings scheduled at these times is not
impugned. While there is evidence that attendance at
meetings outside of working hours was less than atten-
dance at the instant meetings, this does not affect the above
principle.
As is clear, Respondent Union coerced no one to attend
the meetings, no fines or assessments were levied, and no
one's employment status was affected. In sum, I do not
find the furnishing of unlawful assistance and support by
Respondent Employer or for that matter, on a preponder-
ance of the evidence, that Respondent Union caused
Respondent Employer to engage in unfair labor practices,
respectively, within the meaning of Section 8(aX3) and (1)
and Section 8(bX2) and (I)(A) of the Act.
CONCLUSIONS OF LAW
1. Maui Surf Hotel Company is an employer whose
operations affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. ILWU Local 142, Maui Division, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent Employer has not engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. Respondent Union has not engaged in unfair labor
practices within the meaning of Section 8(bX2) and (l)(a)
of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
962