Pacific Beach Corp.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1160 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 140
1160
Pacific Beach Corporation and International Long-
shoremen and Warehouse Union, Local No. 142,
AFL–CIO, Petitioner. Case 37–RC–4022
July 29, 2005
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
The National Labor Relations Board has considered
determinative challenged ballots and objections to an
election held on August 24, 2004,1 and Administrative
Law Judge James L. Rose’s report2 recommending dis-
position of those challenges and objections. The election
was conducted pursuant to a Decision and Direction of
Second Election issued on June 30. The tally of ballots
shows 179 for and 174 against the Petitioner, with 12
challenged ballots.
First, we adopt the judge’s recommendation to over-
rule the Employer’s objections. The judge found, and we
agree, that (1) the Petitioner’s distribution, before the
election, of an unaltered NLRB flyer and a union pam-
phlet entitled “A Guide for New Members” was not ob-
jectionable; and (2) Carmelita Fontillas and Reben Bu-
manglag were not statutory supervisors, and thus their
alleged conduct did not warrant setting aside the elec-
tion.3 In addition, we adopt the judge’s finding that the
Employer’s decision to grant promotions and raises to
landscaping employees during the critical period inter-
fered with the election and requires, if appropriate, that
the Board hold a new election.
Second, we reverse the judge and find that (1) Gordon
Campbell and Kahikina Kanekoa were not statutory su-
pervisors, and thus the judge erred by sustaining the Peti-
tioner’s challenges to their ballots; and (2) the Employer
substantially complied with the Excelsior rule, and the
judge erred by sustaining the Petitioner’s objection to the
Employer’s Excelsior list.4
Finally, we find it unnecessary to pass on the judge’s
finding that the Employer’s notice-of-election posting
did not comply with the Board’s posting rules.5
Based on the above, we remand this case to the Re-
gional Director and direct him to open and count the bal-

1 All dates are in 2004, unless otherwise indicated.
2 On February 11, 2005, Judge Rose issued the attached Report on
Objections and Challenges.
3 As explained below, we do not rely on the judge’s alternate find-
ings for overruling these objections.
4 Member Liebman finds it unnecessary to decide the Petitioner’s
Excelsior list objection, as discussed below.
5 In the absence of exceptions, we adopt, pro forma, the judge’s dis-
positions of the remaining 10 challenged ballots and Petitioner’s re-
maining overruled objections.
lots of Gordon Campbell, Kahikina Kanekoa, Reden Bar-
tolome, Alma Hamamoto, Diane Matayoshi, and Daniel
Kadowski III.6 If the Petitioner maintains its majority
after these ballots are counted, we direct the Regional
Director to certify the Petitioner as the exclusive collec-
tive-bargaining representative for the appropriate unit. In
the alternative, if the revised tally shows that the Peti-
tioner did not receive a majority of the valid votes
counted, we direct the Regional Director to set aside the
election and order a new election.
I. PROCEDURAL BACKGROUND
The Employer operates a hotel in Honolulu, Hawaii.
The Board set aside an initial election and directed a sec-
ond election, which was held on August 24. Both parties
filed timely objections to conduct allegedly affecting the
outcome of the election.
Following a hearing and the judge’s report, the Em-
ployer submitted exceptions to the judge’s decision. In
response, the Petitioner initially filed an opposition brief
that exceeded the Board’s 50-page limit by 13 pages. On
the same day, the Petitioner filed a 50-page amended
opposition, to which it appended, among other things, a
five-page analysis regarding the supervisory status of
Gordon Campbell (appendix A). Following these sub-
missions, the Employer filed a motion to strike appendix
A and numerous statements in the Petitioner’s opposing
brief, cited as direct quotes, which did not appear in the
record. The Petitioner opposed the motion.
A. Appendix A
The Employer argued, and we agree, that appendix A
to the Petitioner’s brief was nothing more than an at-
tempt to circumvent the Board’s 50-page limit. Rules
and Regulations, Section 102.46. The appendix is 5
pages of argument and case law repeated verbatim from
the Petitioner’s initial brief, which was 13 pages over the
Board’s limit. We therefore grant this part of the Em-
ployer’s motion and strike appendix A from the Peti-
tioner’s brief.
B. The Petitioner’s Use of Quotations
The Employer argued that numerous passages in the
Petitioner’s brief should be stricken because they were
presented as direct quotes, but they do not appear as such
in the record. We do not find that the Employer was

6 The judge recommended overruling the Petitioner’s challenges to
the ballots of Bartolome, Hamamoto, Matayoshi, and Kadowski, but
the ballots remained sealed because the number was not sufficient to
affect the outcome. Given our finding that Campbell and Kanekoa
were not supervisors, these ballots may affect the outcome and must
therefore be opened and counted.
PACIFIC BEACH CORP. 1161
prejudiced by this use of quotation marks. We therefore
deny this part of the Employer’s motion.7
II. DISCUSSION
A. Challenged Ballots
At the election, the Petitioner challenged 12 ballots.
The judge sustained eight challenges, two of which are at
issue, and overruled four. We find that the record does
not support the judge’s finding that Gordon Campbell
and Kahikina Kanekoa are statutory supervisors.
1. Gordon Campbell
The judge found that Gordon Campbell, maintenance
foreman, was a supervisor, and thus sustained the Peti-
tioner’s challenge. The judge found that Campbell had
authority to assign jobs, monitor maintenance employ-
ees’ work, approve vacations and time off, and ask em-
ployees to work overtime. He also had an office desk,
and got a 30-percent discount—the same as managers
and other supervisors.
Contrary to the judge, we find that the Petitioner has
failed to meet its burden of showing that Campbell was a
supervisor, and we therefore reverse the judge’s finding.
It was undisputed that Campbell did not have the author-
ity to hire, fire, transfer, discipline, or discharge employ-
ees, or to effectively recommend such action. Although
the judge found that Campbell had the authority to ap-
prove vacation and time-off requests, both Campbell and
his supervisor, John Emerick, testified without contradic-
tion that only Emerick had the authority to approve vaca-
tion and time-off requests.8 Although Campbell was
involved with scheduling the employees’ work, Emerick
testified that Campbell worked from a “boilerplate”
schedule and made weekly changes according to Emer-
ick’s instructions. In addition, Campbell could ask em-
ployees to work overtime if needed, but he did not have
the authority to require employees to work overtime.
None of these duties indicates the exercise of independ-
ent judgment.
Regarding the judge’s findings that Campbell had the
authority to assign jobs to and monitor the work of the
maintenance employees, the record indicates that Camp-
bell received work requests from other departments and
distributed those requests among the employees. He also

7 In denying this aspect of the Employer’s motion, we do not inter-
pret or rely on the quoted passages at issue as direct quotations from the
record. Having reviewed the transcript, however, we note that the
substance of the quotes is supported by the record. Member Schaumber
is of the view that the Union appears to have used quotation marks to
show emphasis rather than to indicate a verbatim quote from the record.
8 Campbell testified, and documents confirmed, that Campbell ini-
tialed employees’ vacation request forms, but Campbell stated that he
did so only with Emerick’s approval.
checked to see if employees were performing their work
properly and directed them to redo it if it was done incor-
rectly. The Board dealt with an individual with similar
duties in Lincoln Park Nursing & Convalescent Home,
318 NLRB 1160, 1162–1163 (1995). In that case, a
“maintenance supervisor” gave assignments to other em-
ployees, such as changing light bulbs and fixing leaks,
and monitored the employees’ performance of these
tasks. The Board found that such direction did not re-
quire the use of independent judgment, and thus did not
indicate supervisory status. Likewise, in Tree-Free Fi-
ber Co., 328 NLRB 389 (1999), the Board found that a
team leader who received requests from other depart-
ments for his team’s work, and decided when this work
should be performed, did not have supervisory authority.
Similarly, in this case, Campbell’s authority consisted
merely of distributing routine tasks among the employees
and monitoring the way each task was performed. We
find that this does not rise to the level required to estab-
lish supervisory status. There is no evidence that quali-
fications and abilities are weighed in making these as-
signments.
In the absence of primary indicia of supervisory status,
the judge relied on several secondary indicia to reach his
conclusion that Campbell was a supervisor.9 The Board
has held, however, that secondary indicia should not be
considered in the absence of at least one characteristic of
supervisory status enumerated in Section 2(11). See,
e.g., Palagonia Bakery Co., 339 NLRB 515, 535 (2003);
Hausner Hard-Chrome of KY., Inc., 326 NLRB 426, 427
(1998). Therefore, for the reasons stated above, we re-
verse the judge’s finding that Campbell was a supervisor
and overrule the Petitioner’s challenge to his ballot.
2. Kahikina Kanekoa
The judge found that Kahikina Kanekoa of the curator
department was a supervisor, and thus sustained the Peti-
tioner’s challenge to her vote. The judge found that Ka-
nekoa recommended hiring based on conducting appli-
cant diving tests, and that she was the “go to” person
when her supervisor was absent. We find that the Peti-
tioner did not establish that Kanekoa was a supervisor,
and we reverse the judge’s finding.
Kanekoa was primarily involved in the maintenance
and operation of a large fish tank. Because she was the
most experienced diver in the department, she adminis-
tered a diving test to prospective employees in the de-
partment. Kanekoa usually (but not always) sat in on a
prospective employee’s interview, and she gave her su-

9 For example, he found that Campbell worked at a desk, had the ti-
tle of “supervisor,” got a 30-percent discount like other managers and
supervisors, and received higher pay than other maintenance workers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1162
pervisor, Hiram Higashida, her evaluation of the appli-
cant’s diving abilities based on the test dive.
Higashida testified that he was a certified diver, he ob-
served each applicant’s test dive, and he made his own
evaluation of the applicants. An applicant’s test dive was
judged on three established sets of criteria. Higashida
relied on Kanekoa for the technical aspects of the dive, but
he made the final decision to hire an applicant.
In similar situations, the Board has found that adminis-
tering tests to an applicant does not constitute an effective
recommendation to hire. For example, in Hogan Mfg.,
305 NLRB 806 (1991), the Board found that an employee
who administered welding tests was not a supervisor. The
test had preestablished standards designed to determine the
applicant’s technical competence, and the employee’s re-
port on the results was not found to be an independent
recommendation to hire. Id. at 807. Similarly, in Farm
Fan, Inc., 174 NLRB 723 (1969), the Board found that an
employee who conducted welding tests for prospective
employees was not a statutory supervisor. The employee’s
supervisor made an independent evaluation of the test and
made the final decision to hire the applicant. Id. at 725.
See also Volair Contractors, Inc., 341 NLRB 673, 684 fn.
7 (2004) (ALJ found that administering welding test does
not establish supervisory status).
The judge also relied on testimony that Kanekoa was the
“go to” person when Higashida was absent, which was up
to 70 percent of the time. This figure, however, is mis-
leading. In addition to his duties at Pacific Beach, Higa-
shida was the landscape manager at the Pagoda Hotel, the
Employer’s sister property, located 2 miles away. During
the summer of 2004, although Higashida spent significant
time at the Pagoda, he could be reached easily if needed.
Higashida testified that he had the final authority on any
special projects in the curator department at Pacific Beach.
Thus, although Kanekoa was a contact person when Higa-
shida was absent, she had no authority to make decisions
on significant issues, and the Petitioner did not establish
that she exercised independent judgment.
B. Employer’s Exceptions
The Employer objected to the Petitioner’s conduct be-
fore the election, asserting that the following alleged ac-
tions affected employees’ free choice: (1) the Petitioner
distributed an NLRB flyer and a union pamphlet entitled
“A Guide for New Members”; (2) the Petitioner’s pam-
phlet “A Guide for New Members” promised employees
material economic benefits; (3) Carmelita Fontillas, an
alleged prounion supervisor, interrogated and threatened
employees; and (4) the Petitioner appointed an alleged
supervisor, Reben Bumanglag, as an election observer.
The judge recommended overruling these objections, to
which the Employer took exception. We adopt the judge’s
findings, as described below.
During the critical preelection period, the Petitioner dis-
tributed to employees an unaltered NLRB flyer which
generally set out election procedures and employees’
rights, and a pamphlet entitled “A Guide for New Mem-
bers” which outlined services and benefits offered to union
members. The Board has never held that distributing an
unaltered Board document is grounds for setting aside an
election. But cf. Sofitel San Francisco Bay, 343 NLRB
No. 82, slip op. at 2 (2004) (Petitioner’s distribution of
altered ballots required setting aside election); SDC In-
vestment, Inc., 274 NLRB 556, 557 (1985) (same). Fur-
ther, the Board has consistently held that informing em-
ployees of existing benefits, rather than promising in-
creased or additional benefits, is not objectionable. See,
e.g., Ameraglass Co., 323 NLRB 701, 701 (1997); Ideal
Macaroni Co., 301 NLRB 507, 507 (1991). As to the
conduct of the alleged supervisors, we agree that the Em-
ployer has not met its burden by showing that either Fon-
tillas or Bumanglag was a statutory supervisor.10 Thus, we
adopt the judge’s recommendation to overrule these objec-
tions.
C. Petitioner’s Exceptions
If the Petitioner loses its majority vote after the chal-
lenged—but overruled—ballots are counted, we find
sufficient merit to one of the Petitioner’s exceptions to
require setting aside the election and directing a new
one.11

10 In adopting the judge’s decision to overrule objections regarding
Fontillas, we do not pass on whether Fortillas’ alleged conduct was
objectionable. But we note, in light of the judge’s reliance on Sutter
Rosseville Medical Center, 324 NLRB 218 (1997), that the Board has
recently clarified its position regarding supervisors’ threats and prom-
ises of benefits during an election campaign. In Harborside Health-
care, Inc., 343 NLRB No. 100, slip op. at 2 (2004), the Board stated
that the proper inquiry is whether a supervisor’s conduct “interfered
with the employees’ freedom of choice so as to materially affect the
election outcome,” and that explicit promises of benefits or threats of
reprisal are not required to find conduct objectionable. Id. As to Bu-
manglag, we do not rely on the judge’s additional reasoning that be-
cause the Employer put Bumanglag on the voter eligibility list, it can-
not argue that he should not have been eligible because he was a super-
visor. This is inconsistent with Board law. See, e.g., Dauman Pallet,
Inc., 314 NLRB 185, 194 fn. 13 (1994) (stating that “either party may
challenge the eligibility of any person whose name has been placed by
the employer on the Excelsior list”); Kirkhill Rubber Co., 306 NLRB
559, 560 fn. 4 (1992) (“The placement of an employee’s name on the
Excelsior list is not determinative of that employee’s status.”). Finally,
we do not rely on the judge’s statement that, even if Bumanglag was a
supervisor, he was sufficiently low level that his presence as an election
observer would not reasonably affect the vote.
11 Because we find grounds to set aside the election if appropriate,
we do not pass on the issue of the Employer’s compliance with the
notice-of-election posting rule.
PACIFIC BEACH CORP. 1163
1. Raises for landscaping employees
As stated above, on June 30 the Board issued a decision
setting aside the first election and directing a second elec-
tion on August 24. On July 8, Landscaping Department
Manager Hiram Higashida approved promotions and
raises, retroactive to July 1, for six of seven employees in
the department. The judge sustained the Petitioner’s ob-
jection to these promotions and raises, and we agree that
the Employer’s conduct warrants setting aside the election.
The Board has held that providing economic benefits to
employees during the critical period is presumptively co-
ercive, but the employer can rebut the presumption by
providing an explanation, other than the election, for the
conduct. See, e.g., Lampi LLC, 322 NLRB 502, 502
(1996). Higashida stated that in his absence from Pacific
Beach from 2000 to 2002, the landscaping department was
reorganized, and when he returned in 2002, he considered
reestablishing the former structure. But he presented no
credible evidence to explain why he waited 2 years to im-
plement the restructuring or why the changes occurred on
the eve of the election. Thus, the judge did not credit Hi-
gashida’s claim that the promotions were part of normal
business operations. Moreover, the judge did not credit
Higashida’s testimony that he did not know about the up-
coming election when he approved the promotions.
We agree with the judge that the Employer has not met
its burden by showing that the raises were unrelated to the
impending election, and we thus adopt the judge’s finding
that the Employer’s conduct was objectionable.
2. Inaccuracies in the Excelsior list
On July 30, the Employer submitted to the Board its Ex-
celsior list with 498 names and addresses. On August 9,
the Petitioner informed the Employer that 26 addresses
were incorrect, and the next day amended the number to
43 (8.6 percent). The Employer sent the Petitioner a cor-
rected list on August 18. The final list contained 24 inac-
curacies (4.8 percent). The judge concluded that the Em-
ployer acted in good faith in attempting to submit a com-
plete and accurate list.
The judge, relying on Woodman’s Food Market, 332
NLRB 503 (2000), found that the Employer’s Excelsior
list did not substantially comply with the rule because the
number of inaccuracies (24) exceeded the margin of the
vote (5). The Board has recently rejected this argument.
In Washington Fruit & Produce Co., 343 NLRB No. 125,
slip op. at 9–10 (2004), the Board stated that omissions
from the Excelsior list—the issue in Woodman’s Food
Market—are treated differently than inaccuracies, and
whereas the vote margin may be relevant in cases of omis-
sions, the Board has allowed greater latitude in cases of
inaccuracies. See also Women in Crisis Counseling, 312
NLRB 589, 589 (1993) (holding that 30-percent inaccu-
racy rate and employer’s good-faith compliance were suf-
ficient to meet Excelsior rule requirements). Under the
appropriate analysis, the 4.8 percent inaccuracy rate in this
case and the Employer’s good-faith attempt to correct the
inaccuracies require a finding that the Employer substan-
tially complied with the Excelsior list rule. We therefore
reverse the judge and overrule the Petitioner’s objection.12
DIRECTION
It is directed that the Regional Director for Region 37
shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of Gordon Campbell,
Kahikina Kanekoa, Reden Bartolome, Alma Hamamoto,
Diane Matayoshi, and Daniel Kadowski III. The Regional
Director shall then serve on the parties a revised tally of
ballots, including the count of the ballots named above. If
the revised tally shows that the Petitioner received a ma-
jority of the valid votes cast, the Regional Director is di-
rected to certify the Petitioner as the exclusive bargaining
representative for the appropriate unit. If the revised tally
shows that the Petitioner did not receive a majority of the
valid votes cast, the Regional Director is directed to set
aside the election and order a new election.
Wesley M. Fujimoto, Esq. and Ryan E. Sanada, Esq., of Hono-
lulu, Hawaii, for the Employer.
Danny Vasconcellos, Esq., of Honolulu, Hawaii, for the Peti-
tioner.
ADMINISTRATIVE LAW JUDGE’S REPORT ON
OBJECTIONS AND CHALLENGES
JAMES L. ROSE, Administrative Law Judge. Pursuant to Sec-
tion 102.69 of the National Labor Relations Board’s Rules and
Regulations, the Regional Director for Region 37 entered an
amended report on objections and challenged ballots, and or-
dered a hearing before an administrative judge. The matter was
heard by me from November 16–22, 2004,1 at Honolulu, Ha-
waii.2
The first election among employees of the Employer, Pacific
Beach Corporation,3 in the unit found appropriate for collective
bargaining was held on July 31, 2002. The revised tally of
ballots served on all the parties at the conclusion of the ballot-
ing showed the following:

12 Because she agrees that the Employer interfered with the election
by granting promotions and raises to landscaping employees during the
critical period, and that the election should be set aside if the revised
tally of ballots does not show that the Petitioner received a majority of
the valid votes cast, Member Liebman finds it unnecessary to resolve
the Petitioner’s election objection alleging that the Employer’s Excel-
sior list was substantially inaccurate.
1 All dates are in 2004, unless otherwise indicated.
2 Included in the record is a posthearing affidavit of the security de-
partment custodian of records and copies of the security log book for
July 28–31, 2002.
3 The name of the Employer is amended in accordance with the Em-
ployer’s motion to amend all formal papers to reflect its correct name.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1164
Approximate number of eligible voters…………………565
Number of void ballots……………………………….……1
Number of votes cast for Petitioner…………………..….212
Number of votes case against participating labor organiza-
tion…………………………………………….…..…….220
Number of valid votes counted………….…….……..…..432
Number of undetermined challenged ballots………..……....1
Number of valid votes counted plus challenged ballots…..433
Number of sustained challenges (voters ineligible)…….….16
Timely objections were filed and a hearing was held
before Administrative Law Judge Gerald A. Wacknov on
these objections and challenged ballots. Judge Wacknov
concluded that some challenges be sustained while others
should be overruled and that certain of the Employer’s ac-
tions amounted to conduct affecting the results of the elec-
tion. Accordingly, he recommended that if a revised tally
of ballots showed that the Union did not receive a majority
of valid votes cast, then the election should be set aside
and a rerun held. If, however, the Union received a major-
ity, then it should be certified as the employees’ bargain-
ing representative.
Following exceptions to the Board, Judge Wacknov’s
decision was affirmed and a rerun election held on August
24, 2004. The tally of ballots served on all parties at the
conclusion of the second election showed:
Approximate number of eligible voters………..481
Number of void ballots….………………….….…1
Number of votes cast for Petitioner………...….179
Number of votes case against participating labor or-
ganization………………………………………174
Number of valid votes counted………..………..353
Number of challenged ballots……………………12
Number of valid votes counted plus challenged bal-
lots……………………………………………....365
Again, both parties filed timely objections to conduct affect-
ing the results of the election, which will be considered seriatim
following consideration of the challenges.
A. The Challenged Ballots
1. The six “general cleaners”
The Union’s election observers challenged the ballots of
Cheong Sun Kim, Chong Ja Kim, Eon Sook Kim, Kyong Soak
Lee, Shin Cha Lee, and Chu Ja Oh, on grounds they were not
employees. The Employer’s payroll records reflect that these
six individuals were hired as “general cleaners” in 2002 and
each work a few days and a hand full of hours that year. These
records also show that the six worked for the Employer not at
all in 2003 or 2004 before the election. Renato Flojo, the Em-
ployer’s executive housekeeper and project manager, testified
the six were not on the housekeeping schedule in 2004 before
the election because “they were not our employee [sic.] in
housekeeping at that time.” Since September or October, they
have in fact worked in housekeeping.
Counsel for the Employer argues that notwithstanding the de
minimus nature of their employment in 2002 and none in 2003
or 2004 before the election, and in spite of Flojo’s testimony,
they were nonetheless employees. Therefore the Union’s chal-
lenge must fail. Further, for the Union now to challenge their
ballots on grounds of de minimus hours would be tantamount to
a postelection challenge, which the Board’s Rules forbid.
The Employer argues that the six were still in its system as
employees. Thu, even though they did not work at all for some
2 years prior to the election, the challenge that they were not
employees is erroneous. Such is a hypertechnical argument
which I reject. The Union actually did not challenge these
ballots. Employee observers did and they would not reasonably
be expected to know the difference between someone who
listed as an employee but does not work and one who is not an
employee. In fact Foljo agreed they were not employees at the
time.
The Board has long held that whether one is a regular part-
time employee and eligible to vote is dependent on whether that
employee does bargaining unit work “with sufficient regularity
to demonstrate a community of interest with remaining em-
ployees in the bargaining unit.” Hampton Inn, 309 NLRB 942,
947 (1992). It is clear that these individuals lacked any real
community of interest with employees in the bargaining unit,
whether they are considered nonemployees or irregular casuals.
Accordingly, I will recommend the challenges to their ballots
be sustained.
2. The alleged supervisors
Section 2(11) of the Act states:
The term “supervisor” means any individual having
authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall promote, discharge, assign, reward,
or discipline other employees, or effectively to recom-
mend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judg-
ment.
The Union contends that the duties of Gordon Campbell,
Reden Bartolome, Kahikina Kanekoa, Alma Hamamoto, Diane
Matayoshi, and Daniel Kadowaki III, meet this definition and
therefore the challenges to their ballots should be sustained.
In addition to the statutory criteria, any one of which is suffi-
cient to find an individual a supervisor, the Board also consid-
ers such secondary criteria as rate of pay vis-à-vis employees,
the number of supervisors per employee, perks, title, and so on.
As is typical in these types of cases, whether a given individual
is a senior rank-and-file employee in the nature of a leadperson,
or is low-level management, is not clear. There are factors
which tend to suggest either conclusion.
On balance, and as will be detailed below, I conclude that
Campbell, and Kanekoa are supervisors and the challenges to
their ballots should be sustained. I conclude that the challenges
to the ballots of Bartolome, Hamamoto, Matayoshi, and
Kadowaki should be overruled. However, I also conclude that
their ballots should remain sealed since their votes would not
be determinative. That is, even if all four voted against repre-
sentation, the Union still would have received a majority of
valid votes cast.
PACIFIC BEACH CORP. 1165
a. Gordon Campbell
Campbell is the maintenance foreman. He has a desk, as do
his boss the chief engineer and the special assistant. Campbell
testified that he spends 2 to 4 hours a day at his desk, checking
e-mails from other departments requesting work, record keep-
ing, charting the progress of jobs. He approves vacation re-
quests and takes calls from employees who might call in sick.
He then checks the work of maintenance employees to see if
the jobs are done correctly, and if not, he will tell them to do it
over. On one occasion he remembered, Campbell recom-
mended an employee be promoted.
In July 2004 Campbell received a $1-wage increase to
$19.74 per hour. In 2002 his earnings were $48,187.63. There
are three supervisors named on the weekly schedule. Three
days a week, all three work. Two days there are two. And 2
days only one supervisor is scheduled. Campbell’s solo day on
those schedules in evidence is Sunday. As a “supervisor or
member of management” Campbell receives a 30-percent dis-
count on purchases, whereas rank-and-file employees receive
20 percent.
John Emerick is the director of engineering and Campbell’s
immediate boss. He testified that work is assigned by work
orders and that Campbell makes out about 60 percent of these
and he does the other 40 percent. The other two individuals
listed as supervisors do none. Emerick also testified that in
situations where someone is needed to stay over past his sched-
uled shift, Campbell had the authority to tell (or ask) the em-
ployee to do so. Emerick also testified that on July 16 he gave
Campbell a $1-an-hour wage increase and changed his position
from maintenance foreman to foreman.
On balance I conclude that Campbell has been given the au-
thority to responsibly direct other employees by assigning them
jobs, checking their work, approving vacations and time off,
and asking them to work overtime. From this authority, and
considering the secondary criteria such as the title of supervi-
sor, office desk, and the 30-percent discount availability, I con-
clude that Campbell is a supervisor within the meaning of Sec-
tion 2(11) of the Act and the challenge to his ballot should be
sustained.
b. Reden Bartolome
Bartolome has been a supervisor in the landscaping depart-
ment since at least May 2002. From the totality of the record it
appears that Bartolome may have sufficient authority and exer-
cise sufficient independent judgment to be considered a super-
visor within the meaning of Section 2(11).
However, at the first election his ballot was challenged by
the Union, then at the conclusion of the hearing before Judge
Wacknov, the Union withdrew its challenge to Bartolome’s
ballot. Counsel for the Employer filed a prehearing motion for
partial summary judgment on grounds that the Union is es-
topped from now contending that Bartolome is a supervisor.
Counsel for the Union opposed this motion on grounds that
Bartolome’s duties have changed sufficiently since the first
election to render its withdrawal of the first challenge of no
determinative effect.
Since I had been advised that there would be additional ma-
terial facts to be considered, I overruled the Employer’s motion.
Now, having considered the record and briefs, I find no evi-
dence that Bartolome’s duties have changed since 2002 in any
significant manner.
The only evidence of much change appears in the testimony
of Hiram Higashida, “the corporate environmental and conver-
sation specialist.” In that capacity, he is in charge of the land-
scaping employees and the curators, a position he has held “a
little over two years.” From 1991 to 2000 he was the landscape
manager. He resigned to work for another hotel, and then re-
turned in 2002 to his present job. When he returned in 2002,
the landscape supervisor was Bartolome. At about that time,
Higashida spent about 50 percent of his time at the Pacific
Beach Hotel and about 50 percent at the Pagoda Hotel, a sister
property whose employees are not in the bargaining unit peti-
tioned for here. In the period immediately prior to the second
election, these figures changed somewhat–30 percent at Pacific
Beach and 70 percent at Pagoda.
Higashida testified that when he was absent from Pacific
Beach, Bartolome “would be the go to person” for other em-
ployees in landscaping. This I conclude is an acknowledgment
that in Higashida’s absence, which is considerable, Bartolome
is in charge of the Pacific Beach landscaping employees. The
question is whether there is any substantive difference between
being in charge 50 percent of the time or 70 percent. I con-
clude not. I conclude that Bartolome’s duties and authority in
2004 was substantially the same as in 2002.
Neither counsel cited authority on the issue of whether in an
election context a party’s agreement to eligibility of a given
employee estopps that party from questioning that employee’s
eligibility in a subsequent election in the same bargaining unit.
Nor has independent research disclosed any authority precisely
on point. However, in an unfair labor practice context the
Board has repeatedly held that a party is barred from relitigat-
ing issues that were, or could have been, litigated in an underly-
ing representation case. Venture Packaging, 294 NLRB 544
(1989). The same bar of relitigation and basic principles of
estoppel would certainly seem to apply to a second representa-
tion proceeding. Thus, absent evidence that Bartolome’s duties
changed in some significant way after the 2002 election, coun-
sel’s stipulation to his status should be considered binding and
Bartolome should be considered eligible based on the parties’
earlier stipulation. Accordingly, I will recommend that the chal-
lenge to his ballot be overruled.
c. Kahikinaokala Kanekoa
The curator department at Pacific Beach takes care of the fish
and water quality in the Oceanarium, a “380,000 gallon fish
tank,” about 2 stories high. (Judge Wacknov found it to be
280,000 gallons and 3 stories high.) The job of curator employ-
ees is to clean the tank and feed the animals. Necessarily these
employees must be certified SCUBA divers. Kanekoa was hired
as a diver level 1 in 1994 and has subsequently been promoted.
At the time of the first election, Jane Fee was the curator de-
partment supervisor. Fee left her employment in 2003 and has
not been replaced as such; however, from the testimony of Ka-
nekoa and Higashida, Kanekoa’s duties and authority are essen-
tially the same as those Judge Wacknov found for Fee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1166
Thus Kanekoa tests prospective employees on their ability to
dive and be comfortable in the tank and recommends whether
they be hired. Such recommendation is effective and not rou-
tine as it requires her particular judgment. Higashida testified
that he relies on her recommendations in making the final hir-
ing decision for divers. In addition, in the absence of Higa-
shida, which is about 70 percent of the time, according to his
testimony, employees are told they should “go to” Kanekoa.
She does not receive the 30-percent discount; however, I do not
consider this determinative since she effectively recommends
hiring, and for at least 70 percent of the time is the senior re-
sponsible employee present at the hotel in the curator depart-
ment. I conclude that she is a supervisor within the meaning of
Section 2(11) and that the challenge to her ballot be sustained.
d. Alma Hamamoto
Prior to the first election, Hamamoto had been promoted from
Guest Service Agent to “Working Supervisor” and as such her
ballot was challenged by the Union. Judge Wacknov found that
her duties and authority did not rise to the level set forth in Sec-
tion 2(11). In May 2004, she in effect took a demotion (and a
reduction in pay) for personal reasons and became a senior ac-
counting clerk. In this position she does not hire or fire employ-
ees, participate in their performance reviews or their promotions.
There are no employees below her that she supervises.
A review of her testimony establishes that her duties and au-
thority from and after May 2004 were less indicative of supervi-
sory status than before. Indeed she lost the 30 percent discount
and reverted to 20 percent. If, as Judge Wacknov found, she was
not a supervisor before the first election, she could scarcely be
found one at the time of the second. If anything, her authority
had diminished beginning in May 2004. Accordingly, I conclude
that the challenge to her ballot should be overruled.
e. Diane Matayoshi
Since September 2003, Matayoshi has worked in the position
of income audit, in which job she goes “through the chits to
make sure that they are rung correctly for each outlet.” She
double checks the work of the cashiers in the restaurants. She
has no authority to hire, fire, or in any way direct the work of
other employees. There is really nothing in this record which
would suggest she is a supervisor. Since September 2003 she
has been an accounting clerk. Accordingly, I recommend that
the challenge to her ballot be overruled.
f. Daniel Kadowaki III
Kadowaki is, and has been, a senior guest services agent, in
which capacity he works the front desk, along at least 10 other
employees. Some years ago he trained new employees, but he
testified he has not done any training for years. According to
his testimony, he has no authority to hire, fire, discipline, or
direct other employees. There is no evidence that his duties
have changed since Judge Wacknov found that he was not a
supervisor or management employee as alleged by the Union.
As with Bartolome, counsel for the Employer filed a pre-
hearing motion for partial summary judgment relating to
Kadowaki since he had been found eligible by Judge Wacknov.
Counsel for the Union stated that there had been material
changes in the job duties of both employees and therefore the
previous decision should not estopp the Union for asserting that
they were supervisors.
A review of the record, particularly the testimony of
Kadowaki, convinces me that there was no significant change
in his job duties or authority between the first and second elec-
tions. Nor is there evidence that he in fact had any of the indi-
cia of supervisory status set for in Section 2(11). I conclude
that he was an eligible voter and that the challenge to his ballot
should be overruled.
B. The Employer’s Objections
1. Union campaign material
Objection 1 reads:
During the critical period prior to and including the day of
August 24, 2004 representation election in the above-entitled
matter, the International Longshoreman and Warehouse Un-
ion (“Union”) distributed campaign material to the Pacific
Beach Hotel employees implying governmental support of the
Union. Such conduct interfered with, coerced, and restrained
employees in the exercise of their Section 7 rights, and
thereby interfered with the employees’ ability to exercise a
free and reasoned choice in the election and undermine the
laboratory conditions surrounding the election.
In evidence is a NLRB flyer. It is 8-½” by 11” and is appar-
ently made to be folded in thirds. There is printing on both
sides which generally sets forth employee rights under the Act
and election procedures. There is also a listing of the Board’s
field offices. This flyer and a pamphlet from the Union entitled
“A Guide for New Members” were distributed by union repre-
sentatives. The Employer contends that by distributing the
NLRB flyer, the Union suggested to employees that the Board
favored the Union in the election.
In support of this position, the Employer cites several altered
ballot cases, the most recent of which is 3-Day Blinds, Inc., 299
NLRB 110 (1990). In those cases the Board held that by repro-
ducing an official ballot and placing an “X” in the “No” box,
the employer communicated to employees that the Board fa-
vored the employer. This, of course, is not such a case.
Here, the Union reproduced a flyer generally available to the
public which states in layman terms the rights of employees. It
certainly cannot be objectionable to inform employees, through
Board produced material, of their rights–even when accompa-
nied by a union pamphlet. The Board flyer was not altered in
any way. There is nothing on either of these documents which
would suggest that the Board favored the Union. Accordingly,
I will recommend that objection 1 be overruled.
2. Interrogation and threats by supervisors
Objection 2 (and 3, which is in identical language) reads:
During the critical period prior to and including August 24,
2004 representation election in the above-entitled matter, in-
dividual who were supervisors at Pacific Beach Hotel under
the meaning of the Act unlawfully interrogated Pacific Beach
Hotel employees and encouraged them to vote in support of
the Union. Such conduct interfered with, coerced, and re-
strained employees in the exercise of their Section 7 rights,
and thereby interfered with the employees’ ability to exercise
PACIFIC BEACH CORP. 1167
a free and reasoned choice in the election and undermine the
laboratory conditions surrounding the election.
This objection is based on the alleged supervisory status of
Carmelita Fontillas and the fact she discussed the election with
two housekeeping employees, urging them to vote for the Un-
ion. The Employer cites Millsboro Nursing & Rehabilitation
Center, 327 NLRB 879 (1999), affirming the Board’s two-part
test concerning whether prounion conduct by supervisors would
taint an election. To find prounion activity by supervisors ob-
jectionable requires (1) that the employer’s position concerning
the election was not known to employees and (2) there were
threats or promises of benefits. Sutter Rossville Medical Cen-
ter, 324 NLRB 218 (1997).
Here, while Fontillas has some indicia of supervisory status,
she was clearly considered by the Employer to be a bargaining
unit employee. Her name was included on the eligibility list.4
Second, even if she was a supervisor, her statements would not
be grounds for setting aside the election. The Employer’s anti-
union stance was well known. There were no threats or prom-
ises of benefits made by Fontillas. Accordingly, I will recom-
mend that Objections 2 and 3 be overruled.
3. Conferring economic benefits
Objection 4 reads:
During the critical period prior to and including the day of
August 24, 2004 representation election in the above-entitled
matter, the Union conferred various material economic bene-
fits to the Pacific Beach Hotel employees. Such conduct in-
terfered with, coerced, and restrained employees in the exer-
cise of the Section 7 rights, and thereby interfered with the
employees’ ability to exercise a free and reasoned choice in
the election and undermine the laboratory conditions sur-
rounding the election.
This objection is based on the distribution of the Union’s “A
Guide for New Members” pamphlet which describes certain
benefits members enjoy. The Employer contends that such
confers a tangible economic benefit akin to offering free medi-
cal screening a few days before an election as in Mailing Ser-
vice, 293 NLRB 565 (1989). While the Board has set aside
elections where the petitioning union gives prospective em-
ployees a tangible benefit prior to the election, to distribute
literature which sets forth benefits members enjoy is not the
same.
Indeed, as the Board further said in Mailing Service, “We
agree with the Regional Director that the Union was entitled to
publicize an existing incident of union membership or represen-
tation. It could have provided employees with descriptive in-
formation about its health screening program.” That is all the
Union did here. The Union did not confer a tangible monetary
benefit. It merely told employees about some benefits of being
a union member. Accordingly, I will recommend that Objec-
tion 4 be overruled.

4 Fontillas was apparently discharged after the eligibility list was
submitted by the Employer but before the election.
4. Supervisor as election observer
Objection 5 reads:
The Union appointed an individual who was a supervisor at
Pacific Beach Hotel under the meaning of the Act to serve as
an election observer for the representation election held on
August 24, 2004 in the above-entitled matter. The appointed
individual served as an election observer on behalf of the Un-
ion during the August 24, 2004 representation election. Such
conduct interfered with, coerced, and restrained employees in
the exercise of their Section 7 rights, and thereby interfered
with the employees’ ability to exercise a free and reasoned
choice in the election and undermine the laboratory conditions
surrounding the election.
This objection is based on the allegation that Reben Bu-
manglag “may be a supervisor in the maintenance department”
(Emp. Br. at 103) and he was a union observer. The Employer
contends that Bumanglag “may be a supervisor” because his
job duties are similar to Gordon Campbell, who was challenged
as supervisor and I find was.
Although the minimal evidence concerning Bumanglag’s
work does suggest that it is similar to Campbell’s, the evidence
is really too sketchy to find that he had any of the authority
under Section 2(11). In fact he testified that Campbell directs
his work and has asked him to work overtime. Further, the
Employer put Bumanglag on the voter eligibility list, which I
find precludes it from now arguing that he should not have been
eligible. Finally, if he is a supervisor, Bumanglag is suffi-
ciently low level that his presence as an observer would not
reasonably affect the vote in favor of the Union. Accordingly, I
will recommend that Objection 5 be overruled.
5. Catch-all objection
Objection 6, 7, and 8 are general allegations that by the Un-
ion’s overall conduct, employees were denied the ability to
exercise a free and reasoned choice. The Employer offered no
additional evidence concerning these objections, and did not
brief why they should be sustained. Accordingly, I will rec-
ommend that Objections 6, 7, and 8 be overruled.
C. The Petitioner’s Objections
Inasmuch as I have concluded that 8 of the 12 challenges be
sustained even if the remaining four are all “no” votes, the Un-
ion would have received a majority of valid votes cast. There-
fore, the Union’s objections are moot; however, in the event
there are exceptions to this decision and the Board reverses on
one or more of the challenges, and if then the tally of ballots
were to show the Union did not receive a majority, I would
recommend the election be set aside and a rerun ordered based
on the following findings concerning the Union’s objections.
1. Posting the election notice
The Petitioner’s first objection states:
Commencing on July 23, 2004, and thereafter, including the
day of the election (8/24/04), the Employer, by and through
its employees, representatives, and agents failed to post No-
tice of Second Election on its premises in accordance with
Section 103.20 of the Board’s Rules requiring that the Em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1168
ployer post copies of the election notice at least three full
working days prior to the day of the election; thus, limiting
the opportunity of the eligible voters to exercise their statutory
rights and privileges. The foregoing misconduct affected
voter turnout and election results.
Though the Union presented some testimony from employ-
ees that they did not see a notice of the second election, the
most credible evidence shows, and I find, that in fact an official
notice was posted on the main bulletin board across from the
security office where all employees swipe in and out. This no-
tice was posted on August 19–5 days before the election.
There are other bulletin boards and timeclocks throughout
the facility. No notice was posted at any of these places, as
they had been prior to the first election.
The issue is whether positing one notice where there is a
large bargaining unit and many departments scattered through-
out a large facility is substantial compliance with Section
103.20 of the Board’s Rules, and if not, whether the lack of
compliance requires setting aside the election.
The Petitioner cites Kilgore Corp., 203 NLRB 118 (1973),
where the Board set aside an election because the Employer
only posted one notice even though employees worked in
“widely scattered locations.” Similarly, in Thermalloy Corp.,
233 NLRB 428 (1977), the Board set aside an election, not-
withstanding all eligible employees voted, where one notice
was posted in one building whereas some employees worked in
another, not within walking distance. And most recently,
Kilgore was followed. Systems West LLC, 342 NLRB 851
(2004), wherein the judge distinguished Penske Dedicated Lo-
gistics, 320 NLRB 373 (1995), in which the Board found that
posting requirement of Section 103.20 was met for a small (61)
unit even though one of rooms where the notice was posted was
locked on the weekend.
The sum of these cases is that the posting requirement of
Section 103.20 (amended into the Rules in 1987) is one which
the Board will seriously consider, notwithstanding there are no
precise criteria as to where and how many notices must be
posted. The policy of the rule is to give all employees a rea-
sonable chance to read the notice, and not only know when the
election will be held but of their rights under the Act.
While it is true that all employees must swipe in near the
bulletin board where the notice was posted, I conclude that one
notice on one of many employee bulletin boards in a large facil-
ity such as this hotel is not sufficient compliance. There is, of
course, no way of knowing whether all employees were ade-
quately informed of the election and their rights. However, I
note that in 2002, when several notices were posted, the turnout
of eligible voters was 79 percent, whereas in 2004 it was 75
percent. Although 4 percent may not seem much, in a unit of
481 employees, such amounts to about 19 votes not cast. In an
election as close as these two have been, 19 votes is significant.
I conclude that by posting only one notice of the election, the
Employer was not in substantial compliance with Section
103.20 and its failure, pursuant to subparagraph (d) is grounds
for setting aside the election.
2. Objections 2, 5, and 11
Counsel for the Petitioner concedes that there is no record
evidence concerning Objections 2, 5, and 11. Thus, the Peti-
tioner withdrew these objections.
3. Threats of job loss through the use of subcon-
tracts/independent contractors
Petitioner objection 3 reads:
Commencing on or about July 23, 2004, and thereafter, the
Employer, by and through its employees, representative and
agents, unlawfully threatened employees that they would lose
their jobs through the partial subcontracting of housekeeping
work at the Hotel and the threat of expanding subcontrac-
tor/independent contractors in other departments; thus, inter-
fering with the right of free choice of eligible voters and de-
stroying the laboratory conditions necessary for the conduct
of a fair election.
Apparently this objection relates to the Employer’s some-
times use of housekeeping employees from a company called
“Team Clean.” The record evidence is that there are not
enough regular housekeeping employees when the hotel is at
high occupancy. In such cases, regular employees are asked to
work overtime, and if there are still not enough employees to
cover the work required, then the independent contractor is
called. This occurred before the second election. However, the
Employer had used Team Clean employees at least since 2003
when Penato Flojo, the Employer’s executive housekeeper and
project manager, came on duty.
Though the Employer does use an independent contractor for
overflow work in housekeeping, it appears this has been the
case for some years. There is no testimonial evidence that em-
ployees were threatened with loss of jobs as a result of the Em-
ployer using subcontracts or independent contractors. Accord-
ingly, I conclude that the Petitioner did prove the facts asserted
in Objection 3 and it should be overruled.
4. Fraudulent misrepresentations
Petitioner Objection 4 reads:
Commencing on or about July 23, 2004, and thereafter, the
Employer, by and through its employees, representatives and
agents, unlawfully engaged in fraudulent misrepresentations
through the submission of Employer sponsored leaflets and /or
mail outs regarding the amount of union dues, medical benefits,
wage increases and other benefits. The Employer also issued
leaflets and/or mail outs dated July 28, 2004, and August 4,
2002, misrepresenting job closures at sister-property, while at
the same time identified the NLRB elections as being “hostile
takeover,” by ILWU; which materially interfered with the Un-
ion’s right to communicate with said eligible voters prior to the
election. The Employer’s misrepresentations served to falsely
identify the Union as a corporate raider in competition with
other business entities. Job security and retention of hours,
wages and other terms and conditions of employment were the
major issues of concern to voters in the proposed bargaining
unit and thus, the Employer’s rebutted misrepresentations im-
mediately before the election destroyed the laboratory condi-
tions necessary for the conduct of a fair election.
This objection is based on a number of flyers disseminated
by the Employer, as well as a bogus paycheck to each em-
PACIFIC BEACH CORP. 1169
ployee which stated the dues deducted that pay period (the one
immediately preceding the election) and the year to date.
In evaluating preelection material, the standard is set by the
Board in Midland National Life Ins. Co., 263 NLRB 127, 133
(1982): “Thus we will set an election aside not because of the
substance of the representation but because of the deceptive
manner in which it was made.” This standard has been dis-
cussed and expanded in some cases, but generally followed.
For instance, in Michellace, Inc. v. NLRB, 90 F.3d 1150 (1996),
the court agreed that an election should not be set aside based
on the substance of the misrepresentations alone, but only on
the deceptive manner of the representations which would cause
employees not to be able to distinguish truth from falsehood.
The issue, then, is wither the six flyers in evidence contain
such pervasive misrepresentations that employees would be
unable to separate truth from untruth. I conclude not. One
flyer likens representation by the Union as a hostile takeover.
Another notes that employees of the Pagoda Hotel received a
wage increase and more vacation time. Another states that the
Kona Beach Hotel avoided closure by reducing costs 15 percent
and laying off employees. Another states union representatives
push themselves on employees who do no want to talk with
them and lie about medical benefits if employees were to vote
for the Union. Finally, a flyer is devoted to the supposed lies
union representatives tell about medical benefits.
The bogus paychecks are closer to a forgery or a deceptive
manner of representation requiring the election to be set aside.
The checks were generated by the payroll department and
looked exactly like the regular paycheck, with various deduc-
tions. Included was an amount for union dues, even though
there is no indication that this was accurate. Linda Morgan, the
Employer’s director of human resources, did not know where
the figures for union dues came from, or if they were accurate.
Although a different figure on each of the bogus paychecks in
evidence, generally the asserted dues is a little more than two
and one half times the per hour rate shown on the pay stub.
Thus for an employee earning $10 per hour, the Employer was
telling employees that their monthly dues would be in excess of
$50. This may accurately reflect the Union’s dues structure,
but probably not.
Nevertheless, I conclude that issuing this bogus pay checks
would not be grounds for setting the election aside. Even if the
asserted dues are excessive, and the checks appear real, cer-
tainly the employees would know that at some point with union
representation they would be required to pay dues.
Accordingly, I will recommend that Union’s Objection 4 be
overruled.
5. Discipline of a known union supporter
This objection is based on allegedly unlawful discharge of
Carmelita Fontillas. A charge was filed by the Union alleging
her discharge with being a violation of Section 8(a)(3). Follow-
ing an investigation, the General Counsel declined to issue a
complaint and the charge was withdrawn. Though asserting
that he did not intend to litigate the legality of the discharge,
Counsel for the Union maintained that the effects of the dis-
charge on unit employees could be a basis for setting aside the
election.
At the hearing I sustained the Employer’s objection to testi-
mony concerning Fontillas’ discharge. If, as must be pre-
sumed, the discharge was lawful then it could not be a basis for
setting aside the election, otherwise before an election an em-
ployer would not be able to lawfully discharge employees for
cause.
As noted by counsel for the Union, absent testimony con-
cerning the Fontillas discharge, there is no evidence of record
supporting Objection 6. Accordingly, I will recommend it be
overruled.
6. Offering and providing monetary gifts/payouts
Objection 7 reads:
Commencing on or about July 23, 2004 and thereafter, includ-
ing up to the 24-hour time period just prior to the election, the
Employer, by and through its representative, employees and
agents, unlawfully engaged in pre-election conduct by offer-
ing and providing monetary gifts/payouts based upon Union
and anti-Union sentiment, in order to interfere with the exer-
cise of Section 7 rights of employees under the Act.
In evidence are “STATUS/RATE CHANGE FORM” for 18
kitchen employees (one form is unreadable and there are two
for G. Bustamante, 6/15/04 and 7/16/04) and 6 in landscaping.
The Union contends that by giving these employees promotions
and wage increases, the Employer engaged in objectionable
conduct. The Employer maintains that each was given in the
normal course of business, and specifically in connection with
reorganization of the kitchen and landscaping departments.
Counsel for the Union seems to argue that these were general
pay increases and notes that Morgan testified that it had been 8
years since general pay increases had been given employees.
The evidence does not support this contention. The record and
testimonial evidence tends to prove that in the kitchen and
landscaping departments there were some organizational
changes and employees were promoted. Such does not in and
of itself prove that the Employer engaged in objectionable con-
duct. Counsel for the Union cites American Sunroof Corp., 248
NLRB 748 (1980), for the proposition that such increases are
presumptively objectionable, placing the burden on the em-
ployer to prove that the timing of the raises was governed by
factors other than the election.
John Lopianetzky has been the director of food and beverage
since August 19, 2003. He testified at length concerning the
rate increases a few weeks before the election for 13 of the 82
employees in the culinary department. Similar increases were
given three employees after the election. For many employees,
particularly in the culinary department, there are two and some-
times three pay rates. Typically, an employee will have an “A”
rate and position for his or her primary job and a “B” rate. The
“B” rate is higher and is paid the employee when assigned to
“B” position. Most of the changes involved making the em-
ployee’s “B” rate permanent, or assigning a “B” rate.
Lopinanetzky testified that on his return to the Hotel in 2003,
he began making some changes and that most of pay grade
changes in 2004 were as a result of restructuring. Some were
the result of employees leaving or retiring. There is nothing in
his testimony or the documentary evidence which would tend to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1170
dispute that the pay grade changes were other than done in the
normal course of business. I credit Lopianetzky and conclude
that the pay grade changes in the culinary department did not
amount to objectionable conduct.
The same result, however, is not the case with the landscap-
ing department. There are seven employees in the landscaping
department, including Bartolome. As of May 2002, Bartolome
had the “B” position of supervisor I and, apparently, the highest
rate available for landscaping employees. On July 1, the other
six employees (which included one transfer) received rate
changes and pay increases.
As noted above, Hiram Higashida is in charge of the land-
scaping and curator departments at both the Pacific Beach Ho-
tel and the Pagoda Hotel. He testified that when he returned to
the Hotel in 2002 he started evaluating the duties of his land-
scaping employees and determined that the assistant gardeners
should be made gardeners. Then, according to his testimony,
two years later, in early 2004, he decided to make the changes.
However, he did not get around to doing so until July.
I do not credit Higastida. His testimony was, at best, conclu-
sionary. He gave no persuasive reason for “restructuring” the
department or why he would give everyone in the department
(other than the supervisor) a pay raise a few weeks before the
rerun election or why it took him so long to effectuate the
changes. He testified that not only did the wage increases not
have anything to do with forthcoming election, he did not even
know about the election–a statement I find wholly incredible. I
do not believe the Employer met its burden of proving these
pay increases were benign and given in the normal course of
business. Accordingly, I conclude that Union’s Objection 7
should be sustained.
7. Incomplete “Excelsior list”
Union Objection 8 reads:
Commencing on or about July 23, 2004 and thereafter, the
Employer, by and through its employees, representatives and
agents, provided the Union wholly inaccurate, misleading,
and incomplete information on the “Excelsior list” and en-
gaged in other practices to prevent ILWU supporters and
campaigners access to employees’ home and/or residence (see
Objection IV). The Employer’s failure to provide an adequate
and complete listing of names and addresses of all eligible
voters resulted in an usurpation of the Board’s power to de-
termine voter eligibility and materially interfered with the Un-
ion’s right to communicate with said eligible voters prior to
the election, and prevented a designation by a majority of a
representative segment of eligible voters from indicating their
choice of Union representation or note in the election. By
these acts, The Employer unlawfully interfered with the Sec-
tion 7 rights of the employees.
On July 30 the Board’s subregional office received the
names and addresses of 498 employees purporting to comply
with Excelsior list requirement. On August 9, an attorney for
the Union wrote the Employer contending that 26 addresses
were incorrect and on August 10 amended this to state that 43
addresses were incorrect. There was an exchange of corre-
spondence, with counsel for the Employer stating that the Em-
ployer was making its best efforts to correct any inaccuracies.
On August 18, counsel for the Employer sent counsel for a
union list of updated addresses.
Notwithstanding the Employer’s efforts to insure that the ad-
dresses of employees submitted to the Union were accurate, the
Employer was unable to correct them all. Thus, counsel for the
Employer, on brief, stated: “However, based on the Em-
ployer’s investigation of the matter, 23 of the allegedly incor-
rect addresses were, in fact correct. Further four of the em-
ployees alleged by the Union to have incorrect addresses no
longer worked at Pacific Beach Hotel. Therefore, there were
just 24 incorrect addresses on the Excelsior List. This consti-
tutes an inaccuracy rate of under 5%.”
In evidence are union campaign mailers returned for insuffi-
cient addresses for 10 employees. Also, William Udani, a field
organizer for the Union, testified that he went to homes to talk
to employees and on occasion was told the employee did not
live at that address. This testimony is fairly vague, but together
with the returned mailers and counsel for the Employer’s
statement tends to support the conclusion that there were inac-
curacies in the Excelsior list—a matter which was in fact stipu-
lated to by counsel.
The Employer maintains that it was in substantial compli-
ance with the Excelsior list rule and that inaccuracies of less
than 5 percent is not sufficient under Board law to require set-
ting aside an election. While the Board has in the past consid-
ered the percentage of address inaccuracies to be determinative,
the Board now also considers whether the number of inaccura-
cies is within or more than the election margin. Woodman’s
Food Market, 332 NLRB 503 (2000). Thus notwithstanding
the employer’s good faith in attempting to submit a complete
and accurate list of names and addresses, if the number of inac-
curate addresses exceeds the margin of the vote, then such is
sufficient to set aside the election.
Here the Union’s margin of victory was 5 votes. However, if
all 12 challenges were to be overruled and all those votes were
against representation, then the Union would lose by 7 votes.
Thus the 23 inaccuracies admitted by the Employer, or even the
10 who did not receive mailers would be more than the election
margin. Accordingly, I conclude that Objection 8 should be
sustained.
8. Overly broad no-solicitation rule
Objection 9 states:
Commencing on or about July 23, 2004 and thereafter, the
Employer, in order to discourage membership in a labor or-
ganization, promulgated, implemented, and never rescinded
an overly broad and unlawful no solicitation rule.
In the previous case, Judge Wacknov found that the Em-
ployer’s policy concerning where and when employees and non
employees could engage in solicitation (contained in its em-
ployee handbook) was overly broad, invalid, and a basis to set
aside the election, a finding which was affirmed by the Board.
On April 15, 2003, shortly after Judge Wacknov issued his
decision, the Employer undertook to amend this policy in order
to conform to the Board’s standards by issuing a memo to all
employees. The Union does not contend that the revised policy
PACIFIC BEACH CORP. 1171
is invalid, only that it has not adequately been distributed to all
employees. Morgan testified that the memo is, and has been,
inserted into the employee manual given new employees, and
current employees were told to take the old policy out of their
manuals and insert the new one. She also testified that the
memo was placed on various bulletin boards and each depart-
ment had meetings with employees to discuss the new policy.
Several employee witnesses also so testified.
Counsel for the Union maintains that since Morgan was not
able to “guarantee” that all employees were given a copy of the
memo, the Employer has not presented substantial evidence
that the unlawful policy has been fully rescinded.
I disagree. The credible evidence is that in fact the Em-
ployer published the revised policy and undertook to advise all
employees of it. There is no evidence that the old unlawful
policy has been enforced in any way. On balance, I conclude
that the Union’s objection concerning the no-solicitation policy
should be overruled.
9. Catch-all objection
Objection 10 reads:
By such other acts and deeds, the Employer, by and through it
agents, employees, and representative, interfered with and co-
erced employees in exercise of their rights under Section 7 of
the Act, and said acts and deeds precluded a fair election.
The Union offered no evidence on this objection and I rec-
ommend it be overruled.
D. Conclusions and Recommendations
I recommend that all the challenged ballots remain sealed,
that the Employer’s objections to conduct affecting the results
of the election be overruled and that the Union be certified as
the duly elected representative of all employees in the bargain-
ing unit found appropriate by the Regional Director for Region
37.5
In the event that following exceptions to this decision, the
Board should make rulings on the challenged ballots such that a
revised tally of ballots would show a majority not to have voted
in favor of the Union, then I recommend that Petitioner Objec-
tions 1, 6, and 7 be sustained and a third election be conducted.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Employer’s objections to conduct affecting the results of
the mail ballot election in the above matter are overruled. The
Regional Director for Region 37 shall certify the Petitioner as
the collective-bargaining representative of employees in the
appropriate unit.

5 See amended report on objections and challenged ballots, order di-
recting hearing and notice of hearing dated October 22, 2004.
6 Any party may, under the provisions of Secs. 102.67 and 102.69 of
the Board’s Rules and Regulations, file exceptions to this report with
the Board in Washington, D.C., within fourteen (14) days from the
issuance of this report. Immediately upon filing of such exceptions, the
party filing the same shall serve a copy thereof on the other parties and
shall file a copy with the Regional Director. Exceptions must be re-
ceived by the Board in Washington, D.C. by February 24, 2005.