Oaktree Capital Management

National Labor Relations Board - Administrative Judge Opinions

Aug 17, 2009

37-CA-006601 (N.L.R.B. Aug. 17, 2009)

JD(SF)–28–09
Kahuku, Hawaii
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
OAKTREE CAPITAL MANAGEMENT, LLC Cases 37-CA-6601
and TBR PROPERTY, LLC, a SINGLE 37-CA-6642
EMPLOYER, d/b/a TURTLE BAY RESORTS, 37-CA-6669
and BENCHMARK HOSPITALITY, INC. 37-CA-6691
37-CA-6730
37-CA-6753
and 37-CA-6756
37-CA-6768
37-CA-6816
UNITE HERE! LOCAL 5 37-CA-6826
37-CA-6827
37-CA-6835
37-CA-6840
37-CA-6875
37-CA-6877
37-CA-6878
Meredith Burns of Honolulu, Hawaii, for
the General Counsel
Robert Murphy and Daniel Berkley of
San Francisco, California for
the Respondent
SUPPLEMENTAL DECISION ON REMAND
Mary Miller Cracraft, Administrative Law Judge: In Turtle Bay Resorts, 353 NLRB No.
127, slip opinion at pp. 2-3 (March 31, 2009), the Board severed and remanded a single issue.
That issue is whether Respondents violated Section 8(a)(1) and (5) of the Act1 by unilaterally
requiring Union agents to pay for parking, which Respondents had previously validated, when
the agents visited the resort for representational purposes.
Judge Gontram, who heard the underlying cases, found that the longstanding practice of
validating the Union agents’ parking receipt was a term and condition of employment, but
because there was no evidence in the record concerning the fees charged, Judge Gontram
concluded it was not evident that the change was material, substantial, and significant such that
it required bargaining before making the change. The Board severed and remanded this issue
for reexamination in light of the fact that there was evidence in the record that showed that the
parking fees assessed totaled approximately $2,080 per year since 2005.

1 29 U.S.C. §158(a)(1) and (5).
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Following the remand, the parties were invited to brief this issue.2 Although Respondents
initially took the position that briefing was inappropriate because the remand was on appeal to
the Fifth Circuit Court of Appeals together with the portion of the case not remanded, I found
that the remand was not a final order on appeal to the Fifth Circuit and thus overruled
Respondents’ opposition to briefing the remanded issue. Respondents and the General Counsel
filed briefs regarding the remand.
Having fully considered these briefs, I find that rescission of the parking validation
practice was a material, substantial, and significant change. Thus, I find that Respondents
violated Section 8(a)(1) and (5) of the Act by unilaterally eliminating parking validation for Union
agents who were present at the resort to perform representational duties pursuant to the terms
of the expired collective-bargaining agreement.
Findings of Fact3
Respondents operate Turtle Bay Hotel and Resort in Kahuku, Hawaii, on the island of
Oahu. The Union represents about 360 employees at the resort. The parties’ most recent
collective-bargaining agreement expired on November 25, 2003. For the most part, the parties
continued to observe the terms of the expired contract. Dating from at least 2002, Union
business agents routinely visited the resort on a twice-weekly basis in order to perform such
representational duties as meeting with employees, discussing Union-related matters, assisting
employees, meeting with management, and processing grievances. Beginning in May 2004,
following rescission of dues deduction, the Union agents also sought to collect Union dues.
Respondents’ practice was to validate the parking for Union agents. Validation continued, at
least for a time, following expiration of the contract.
By letter of January 25, 2005, Respondents informed the Union that its representatives
would no longer receive free parking at the resort to visit employees. Respondents instituted this
change without notifying the Union or giving it an opportunity to bargain. The practice of
providing free parking to the Union representatives while on the property on official business
was known and facilitated by Respondents. Business agents had to pass by a kiosk in the
driveway in order to access the parking lot. The parking attendant routinely gave the business
agents parking tickets and the business agents validated these tickets with Respondents’
security or with Respondents’ human resources department. There is no evidence that the
resort charges anyone other than the business agents for parking at the resort. Indeed,
Respondents admitted providing free parking to the public for use the beach.

2 The parties were advised that four issues might be briefed as follows: (1) Is the subject of
parking privileges for Union representatives who are present at an employer’s premises
pursuant to a contractual access provision a mandatory or permissive subject of bargaining? (2)
If such parking privileges (valued at $2080 per year) are a mandatory subject of bargaining, is
the unilateral rescission of such privileges a material, significant, and substantial change? (3) If
such parking privileges are a permissive subject of bargaining, does an employer commit an
unfair labor practice in unilaterally rescinding the parking privileges? (4) Are any or all of the
above questions within the scope of the remand?
3 Judge Gontram made findings of facts in his initial decision. Those facts as well as the
additional facts noted by the Board in Turtle Bay Resorts, supra, are included.
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Rescission of the parking validation practice must be viewed in the context of the other
actions between Respondents and the Union. After expiration of the contract on November 25,
2003, the Union launched a campaign to secure a new contract including rallies, picketing, and
a boycott of the resort. On February 14, 2004 security officers at Turtle Bay issued a trespass
order to Union business agent Marian Marsh while she was present at the resort to engage in
representational duties, in an attempt to try to prohibit her from accessing the property for one
year. The trespass notice was issued pursuant to section 708-814 of the Hawaii Revised
Statutes, even though that statute provides that it does not apply to “any conduct or activity
subject to regulation by the National Labor Relations Act.”
Four days later, on February 18, 2004, Marsh and another business agent were issued
additional trespass notices while in the employee cafeteria speaking with a unit member. The
security guard informed the business agents that he was directed to call the Honolulu police
department upon seeing any Union representatives on the property without regard to whether
they were on the grounds to talk to the employees they represented.
On March 25, 2004, Respondents’ security officers used video cameras in order to
engage in surveillance of employees and Union representatives who were participating in a rally
in support of Turtle Bay employees. Following this rally, Respondents assigned security officers
to “shadow” within several feet Union representatives whenever they were on the property.
Judge Gontram found that “the Respondents reaction to the rally — to shadow Union
representatives whenever they came onto the property — was neither effective nor focused nor
reasonable. It was retaliatory and was designed to intimidate and provoke the Union, while
interfering with the Union’s ability to perform its representation function at Turtle Bay.”
On April 2, 2004, during a peaceful Union rally, the head of security of the resort sat in
his vehicle pointing a video camera at participants of the rally. On April 17, 2004, during a rally
in support of Turtle Bay employees, a security guard took pictures of the license plates of
participants of the rally, while another security guard and a sales manager pointed video
cameras at participants of the rally.
On May 4, 2004, while business agent Shimabukuro was meeting with 50 Union retirees
at a public restaurant on Respondent’s property, two security guards issued trespass orders to
her. They also issued trespass orders to business agent Marsh as she was discussing
employment matters with several employees in the employee cafeteria. The security guards
informed the business agents that they were prohibited from entering the property for one year,
they escorted the business agents to the parking lot, and they took photos of the license plates
of the business agents’ cars.
On May 6, 2004, an official of Respondents told business agent Marian Marsh that the
Union was no longer permitted to collect Union dues on Respondents’ property. This occurred
after the employer decided that it would no longer deduct monthly Union dues from employees’
wages as was required under the expired contract. Though the employer ceased deducting
dues, it continued to comply with most other provisions of the expired contract.
On June 7, 2004, Marsh was meeting with employees in the employee cafeteria when
she was approached by two security guards employed by Respondents and a Honolulu police
officer and issued a trespass notice. On June 11, 2004, Marsh was issued a trespass notice for
the mistaken belief that she arrived too early at the resort. On that same day, security guard
Hanohano was assigned to shadow Marsh, and he followed her within 2-3 feet for the entire
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time she was on the property, except when she used the women’s restroom, where he waited
for her outside the door.
On June 12, 15, and 17, 2004, while Marsh was talking with employees in the employee
cafeteria, she was issued a series of trespass notices without being given reasons. On June 22,
2004, while business agent Shimabukuro was collecting Union dues in the employee cafeteria,
Respondents had a Honolulu police officer escort Shimabukuro off the property. On August 6,
2004, business agent Nate Santa Maria was shadowed by a security officer and then told to
leave the property after he talked to employees at their work stations. He spoke with each
worker at their workstations for approximately 15-20 seconds, and security claimed that he was
disturbing the workers. When Santa Maria asserted that it was his contractual right to talk with
the employees, there was a 45 minute standoff in full view of the employees, which ended with
Santa Maria being escorted off the property.
On October 22, 2004, General Manager Abid Butt distributed a memorandum to all
Turtle Bay employees which stated in part that the Union’s attempts to get Respondents to
agree to a new contract will fail. The memorandum stated “Unfortunately for you, your families,
and for everyone associated with Turtle Bay, the Union has made a terrible mistake. We would
rather close the Resort than allow you and your families to be used as hostages.”
Since January 2005, a security guard has shadowed Union representatives as they visit
the employees. Employees and Union representatives have tried to meet in the parking lot in
order to talk beyond earshot of security guards, but on several occasions in February and March
of 2005, the security followed the employees and business agents through the parking lots.
On January 19, 2005, business agents Kimberly Harmon and Laura Moye were
shadowed by security when they attempted to visit employees. The security guard yelled at the
business agents in front of the employees and eavesdropped on their conversations with a
notebook. When an employee greeted business agent Moye, the security guard told the
employee, “You know better than that.”
On January 27, 2005, two days after revocation of the parking validation practice, upon
her return to work after a back injury, business agent Marsh went to the resort to collect Union
dues. Marsh was dropped off at the resort because her back problem made it too difficult to
climb the stairs at the loading dock where she usually entered. She sat in a couch in the hotel
lobby while she waited for her colleague to park the car, but the head of security told her that
she was not allowed to sit on the couch or be in the lobby. Marsh complied and when she and
her colleague tried to use an elevator to get to the employees, the security guard held the door
and would not allow her to use that elevator. Marsh tried to use a different elevator, and the
security guard stood in front of her and bumped her in order to prevent her from using that
elevator. Marsh sat on a bench because her back was causing her significant pain, and the
security guard called a Honolulu police officer and told him that Marsh was causing a
disturbance and had no right to be on the property.
Judge Gontram found that all of the above actions by Respondents, with the exception
of rescission of parking validation practices, violated Section 8(a)(1) of the Act. Thus he found
that Respondents violated the Act by telling Union representatives that they were trespassing,
that they had not right to be a the resort, by telling the Union that it could not collect dues at the
resort, by summoning police to assist in evicting the Union representatives from the resort, by
summoning police to witness service of trespass notices to the Union agents, by issuing
trespass notices, by evicting Union representatives from the resort, by illegally surveilling Union
representatives and employees, by illegally denying Union demonstrators and employees
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access to a public beach adjacent to the resort, by threatening to discipline employees who
talked to Union representatives at the resort, and by threatening to close the resort in retaliation
for employees’ Union activity. The Board affirmed these findings.
Judge Gontram found that the change in parking validation practices for business agents
who were present at the resort to perform representational duties pursuant to the terms of the
collective-bargaining agreement was a term and condition of employment. The parties agree
that this issue is not before me on remand.4 Although Respondents argued that the obligation to
bargain was limited to the employee and employer relationship, and therefore excluded Union
business agents, Judge Gontram rejected this “artificial distinction” for four reasons: (1) as the
exclusive bargaining representatives of the employees, actions taken against the Union are also
against the employees; (2) burdening the Union’s access to employees necessarily burdens the
employees’ access to the Union; (3) extant authority treats Union access to employees as a
mandatory subject of bargaining; and (4) Union access was provided for in the expired
collective-bargaining agreement. Furthermore, Judge Gontram noted that the practice of free
parking by business agents was known and facilitated by the Respondents for several years
prior to rescission of the practice.
Analysis
In the instant case, Respondents unilaterally implemented a $20 per visit parking fee
upon the business agents, equaling approximately $2,080 per year, after at least three years of
providing free parking. The business agents were suddenly faced with a choice to which they
had no input: pay $20 for parking two times a week or park beyond Respondents’ property line
and walk approximately three-quarters of a mile to the building. The change was not caused by
any outside factors that were beyond the employer’s control, but rather was fully initiated and
executed by the employer. See, generally, United Parcel Service, 336 NLRB 1134 (2001)
(Where third party owned the parking facilities and third party instituted the change the employer
must nevertheless bargain regarding the effects).
In determining whether the unilateral change was material, substantial, and significant,
the natural context must be considered. Microimage Display Division of Xidex Corp., 297 NLRB
110, 111 (1989), enf’d 924 F.2d 245 (D.C. Cir. 1991). When an employer takes action “as part
of its concerted strategy to weaken and discredit the union in the eyes of the employees” it is
proper to look at the other elements of that strategy in order to determine whether the issue is
material and substantial. Microimage Display Division of Xidex Corporation v. NLRB, 924 F.2d
245, 253 (D.C. Cir. 1991), rehearing and rehearing en banc denied. In Microimage, the
employer argued that unilaterally changing employees’ lunch breaks for 2 days was de minimis
and was not substantial enough to constitute an unfair labor practice. The Board held, and the
Court agreed, that “by unilaterally implementing the change, the employer was ‘telegraphing to
the employees that the Union was irrelevant.’” Id. The Board held that in the context of the other
actions of the employer towards the Union, the mandatory subject of bargaining of lunch hour
changes for 2 days was material, substantial, and significant.

4 Respondents’ brief states, “Finally, the questions raised by [the judge on remand] exceed
the scope of the remand as the only issue the Board ordered addressed was whether the
monetary amount . . . sufficed to establish that Respondents’ unilateral change was material,
substantial, and significant and consequently whether Respondents violated Section 8(a)(5) of
the Act.” General Counsel states, “Thus, the Board’s remand is limited in scope to this particular
issue.” The issue referred to is “evidence of the monetary amounts . . . for the parking privileges
unilaterally revoked by the Respondents.”
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Respondents in the instant case made it virtually impossible for the business agents to
have meaningful contact with the employees without being shadowed or issued trespass orders.
On many occasions, Respondent issued trespass notices to Union business agents while they
were talking with employees about employment matters. These trespass notices barred the
business agents access to the property for one year, and Respondents tried to enforce them
with numerous calls to the Honolulu police. When the business agents were on the property,
security guards shadowed the business agents, staying within a few feet at all times, except
when the business agents used the restroom. When employees and business agents tried to
take their conversations to the parking lot in order to speak in private, security guards followed
them outside as well. At times, security even took photos of the license plates of business
agents and security guards and a sales manger took video footage of employees taking part in
rallies.
The chronology of events illustrates amply that the change in the terms of parking was
one of many means that the employer used to burden the link between the employees and their
exclusive bargaining representative. Respondent’s conduct itself towards the Union blocked or
burdened the Union’s access to the employees at every turn. Thus, Respondents’ unilateral
change of the parking conditions for Union business agents on the property on official business
constituted a material, substantial, and significant change of employees’ terms and conditions of
employment.
Moreover, even in the absence of the context of Respondents actions, the amount the
Union paid for parking, $2080 per year, is a substantial amount of money, the distance walked
by business agents (some of whom had physical limitations) is significant, and the time involved
in walking the extra distance is substantial. Given these factors and the concerted strategy to
weaken the Union’s access to employees, the parking validation practice, as found by Judge
Gontram, was a mandatory subject of bargaining. Unilateral alteration constituted a material,
substantial, and signification change and violates 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
The Respondents violated Section 8(a)(1) and (5) of the Act by unilaterally altering the
parking validation policy for Union agents who were present at the facility to service the
collective-bargaining contract.
Remedy
Having found that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondents Oaktree Capital Management, LLC, TBR Property, LLC, and
Benchmark Hospitality, Inc., Kahuku, Oahu, Hawaii, their officers, agents, successors, and

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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assigns shall cease and desist from unilaterally altering the parking validation practice for Union
agents who are present at the resort for representational duties pursuant to the terms of the
expired collective-bargaining contract. Further, Respondents are ordered to reinstate the
parking validation practice for business agents present at the resort for representational duties
pursuant to the terms of the expired collective-bargaining contract and make whole the Union
for any amounts incurred for parking after rescission of the parking validation practice as
prescribed in Ogle Protection Service, 183 NLRB 682 (1970). It is recommended that the Order
set forth in the original Decision reported at 353 NLRB No. 127, slip opinion at 3-4, be modified
by addition of the following paragraphs:
1. Cease and desist from unilaterally changing the practice of validating parking for Union
business agents present at the resort for representational duties pursuant to the terms of
the expired collective-bargaining agreement.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
Rescind the change in the parking validation practice and reinstate the practice of
validation of parking tickets for Union business agents present at the resort for
representational duties pursuant to the terms of the expired collective-bargaining
agreement.
3. Make the Union whole for any amounts incurred for parking after rescission of the
parking validation practice.
It is recommended that the following paragraphs be inserted in the Appendix set forth in
Turtle Bay Resorts, supra, 353 NLRB No. 127, slip opinion at 4-5:
WE WILL NOT unilaterally rescind our parking validation practice for Union business agents
who are present at the resort for representational duties pursuant to the terms of the expired
collective-bargaining agreement.
WE WILL reinstate the parking validation practice for business agents who are present at the
resort for representational duties pursuant to the terms of the expired collective-bargaining
agreement.
WE WILL make whole the Union for amounts it incurred in parking fees following our rescission
of the parking validation practice.
Dated, Washington, D.C., August 17, 2009.
_______________________
Mary Miller Cracraft
Administrtive Law Judge