Pacific Micronesia Corp.d/b/a Dai-Ichi Hotel Saipan Beach

National Labor Relations Board - Board Decisions

Apr 29, 2002

337 N.L.R.B. 469 (N.L.R.B. 2002)

DAI-ICHI HOTEL SAIPAN BEACH 469
Pacific Micronesia Corporation d/b/a Dai-Ichi Hotel
Saipan Beach and Hotel Employees & Restau­
rant Employees, Local 5, AFL–CIO and Com­
monwealth Labor Federation. Cases 37–CA–
4926, 37–CA–4927, 37–CA–4944, 37–CA–4945,
37–CA–4946, 37–CA–4951, 37–CA–4962, 37–
CA–4978, 37–CA–4998, 37–CA–5208, 37–CA–
5248, 37–CA–5270, 37–CA–5287, 37–CA–5299,
37–CA–5311, 37–CA–5319, 37–CA–5325, and
37–CA–5336
April 29, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
This case arises in the context of an organizational
campaign conducted by the Charging Party among the
employees of the Respondent, which operates a hotel on
the island of Saipan in the Commonwealth of the North-
ern Mariana Islands (CNMI). The General Counsel’s
complaint alleges that, in response to the Charging
Party’s campaign, the Respondent committed numerous
unfair labor practices in violation of Section 8(a)(1), (3),
(4), and (5) of the Act.1
In March 1996, the Union lost a Board election, but
the election was subsequently set aside and a rerun elec­
tion held. The Union won the February 1998 second
election and was certified as the employees’ bargaining
representative the following month.2 The Respondent,
however, refused to bargain with the Union in order to
test the certification.3 In June 2000, the U.S. Court of
Appeals for the District of Columbia Circuit invalidated
the Union’s certification and denied enforcement of the
Board’s bargaining order. Dai-Ichi Hotel Saipan Beach
v. NLRB, 219 F.3d 661 (D.C. Cir. 2000).
As the General Counsel acknowledges, in light of the
court’s decision, we must dismiss all the 8(a)(5) allega­
tions of the complaint.4 However, a number of other
unfair labor practice allegations remain to be decided.
Central among these is the allegation that, beginning
after the second election and continuing throughout
1998, the Respondent failed to renew the employment
contracts of 39 nonresident employees because of their
union activities. For the reasons set forth below, we find
that, with three exceptions, the Respondent lawfully
1 The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Dai-Ichi Hotel Saipan Beach, 326 NLRB 458 (1998).
3 Dai-Ichi Hotel Saipan Beach, 327 NLRB No. 131 (1999) (not in­
cluded in bound volumes).
4 The Board has decided not to seek certiorari. Thus, the court’s de­
cision is the law of this case.
failed to renew the employees’ contracts for legitimate
reasons. We will begin our discussion of this principal
issue by summarizing the two decisions that Administra­
tive Law Judge James L. Rose issued in this proceeding.
I. BACKGROUND
A. The Judge’s Initial Decision
On September 15, 1999, the judge issued his (attached)
initial decision in this proceeding.5 Applying Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), the judge
found that the General Counsel had shown that the em­
ployees’ union activities were a motivating factor in the
decision not to renew the contracts in question. The
judge reasoned that the element of antiunion animus had
been established based on his findings that, both before
and after the February 1998 election, the Respondent’s
supervisors committed numerous violations of Section
8(a)(1), including: interrogating employees concerning
their union activities or sympathies; threatening employ­
ees with termination or other reprisals because of their
union activities; creating the impression that employee
activity on behalf of the Union is under surveillance;
directing employees not to associate with prounion em­
ployees; and informing employees that selecting the Un­
ion as their bargaining representative would be futile.6
The judge also found that each nonrenewed employee
engaged in union activity and that this activity was
known at least to the employee’s direct supervisor.
The judge concluded, however, that the Respondent
met its Wright Line burden of showing that the nonresi­
dent employees’ contracts would not have been renewed
even in the absence of their union activity. In this re­
gard, the judge found that the Respondent adduced evi­
dence that it tried to renew the contracts of seven em­
ployees but was unable to do so because, in each case,
there was a qualified local resident available which the
Respondent was required, by CNMI law, to hire. With
respect to the remaining employees, the judge found that
the Respondent did not renew their contracts because the
1997 severe downturn in the Asian economy had a major
impact on the Respondent’s operations and required a
reduction-in-force. Accordingly, he recommended dis-
5 The General Counsel and the Respondent filed exceptions, support­
ing briefs, and answering briefs. The General Counsel filed a reply
brief.
6 Almost all of these violations are uncontested. Specifically, no ex­
ceptions were filed to the judge’s findings that the remarks of the fol­
lowing supervisors violated Sec. 8(a)(1): Matrasutaro, Ito, Rueda,
Malabanan, Borlongan, Clamor, Alarilla, Cruz, Trin idad, and Guerrero.
In addition, no exceptions were filed to the judge’s dismissal of the
allegation that the Respondent violated Sec. 8(a)(3) by constructively
discharging Ronald Del Rosario.
337 NLRB No. 66
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
missal of the complaint insofar as it alleges that the Re­
spondent violated Section 8(a)(3) and (1) by failing to
renew the nonresident employees’ employment contracts.
B. The Motion to Reopen
While the judge’s initial decision was pending before
the Board on exceptions by both parties, the General
Counsel moved to reopen the record in light of newly
discovered evidence under Section 102.48(d)(1) of the
Board’s Rules and Regulations. The General Counsel
alleged that Hideo Fujii, a manager of a manpower com­
pany that supplied employees to the Respondent, had
perjured himself in the initial hearing and had concealed
evidence from the General Counsel that the Respondent
had schemed to replace prounion Filipino employees
with employees from Nepal in order to defeat the Union
in the February 1998 election. The General Counsel also
alleged that the newly discovered evidence refuted the
Respondent’s Wright Line defense that the judge ac­
cepted in recommending dismissal of the 8(a)(3) allega­
tions regarding the Respondent’s decision not to renew
the employment contracts of the alleged discriminatees.
On November 15, 2000, the Board remanded the case
to the judge to determine whether the hearing should be
reopened to receive additional testimony from Fujii. On
December 12, 2000, the judge decided that the hearing
should be reopened under Section 102.48(d)(1) and con­
ducted an additional 10 days of hearing.
C. The Supplemental Decision
On July 2, 2001, the judge issued his (attached) sup­
plemental decision in this proceeding.7 Based on his
assessment of the evidence presented at the reopened
hearing, the judge wholly discredited Fujii on all the ma­
terial allegations of his testimony at the reopened hear­
ing. Thus, the judge concluded that the Respondent did
not participate in a scheme to replace Filipino nonresi­
dents with workers from Nepal in order to win the 1998
Board election.
Notwithstanding his complete rejection of the evidence
that the hearing was reopened to receive, the judge sua
sponte reconsidered his initial decision. The judge reaf­
firmed his initial finding that “the General Counsel made
out a strong prima facie case that the alleged discrimina­
tees were not renewed because of their known union ac­
tivity.” In addition, the judge reaffirmed his initial find­
ing that “the Respondent demonstrated that a reduction-
in-force was necessary due to the economy.” The judge
7 The General Counsel and the Respondent filed exceptions, support­
ing briefs, and answering briefs. The Respondent filed a reply brief.
No exception was filed to the judge’s dismissal of the 8(a)(1) com­
plaint allegation that the employment contracts the Nepali employees
were required to sign were unlawful “yellow dog” contracts.
also reaffirmed his initial finding that the Respondent
lawfully replaced seven of the alleged discriminatees
with local employees pursuant to CNMI law.
However, based exclusively on evidence presented at
the initial hearing, the judge modified his initial decision
and concluded that the Respondent violated Section
8(a)(3) and (1) by failing to renew the contracts of 28 of
the nonresident alleged discriminatees. The judge’s ra­
tionale for his new conclusion was that the “Respondent
kept less senior employees who were not identified as
union activists. Seniority, of course, is not dispositive,
but all things being equal, as a general practice employ­
ers keep the more senior and experienced employee
where a reduction in force is necessary.”8 This “senior­
ity” rationale had not been argued by the General Coun­
sel.
II. ANALYSIS AND CONCLUSIONS
We have carefully considered the judge’s initial deci­
sion, his supplemental decision, and the record in light of
the parties’ exceptions and briefs. 9 We have decided to
affirm the judge’s rulings, findings,10 and conclusions,11
as modified by our decision, and to adopt the recom­
mended Order of the supplemental decision, as modified
and set forth in full below.12
8 Under the same seniority rationale, the judge dismissed the com­
plaint allegation that the Respondent unlawfully failed to renew the
employment contracts of four other employees. The judge reasoned
that these workers were all short -term employees.
9 The General Counsel and the Respondent have excepted to the
judge’s credibility findings in both decisions. The Board’s established
policy is not to overrule an administrative law judge’s credibility reso­
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
10 The General Counsel has excepted to the judge’s failure to find
certain violations of Sec. 8(a)(1) in his in itial decision. We find it
unnecessary to pass on these exceptions because the finding of such
additional violations would be cumulative to the 8(a)(1) findings to
which no exceptions have been filed and would not materially affect
the remedy.
The General Counsel correctly asserts in his exceptions that the
complaint contains no allegations that certain unilateral changes vio­
lated Sec. 8(a)(4). The judge therefore erred in dismissing these non-
existent allegations. This inadvertent error does not affect his other
findings and rulings.
11 The Respondent excepts to the judge’s factual finding that it is un­
disputed that the Respondent’s assistant general manager, Yasuhisa
Iwabuchi, attended a meeting with Fujii and Mustafa Issa, the general
manager of the Hyatt Regency Hotel. The Respondent asserts that both
Iwabuchi and Issa testified that Iwabuchi did not attend a meeting with
Fujii and Issa. The record supports the Respondent’s assertion. This
factual error does not affect the judge’s other findings and rulings.
12 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996);
Excel Container, Inc., 325 NLRB 17 (1997); and Ferguson Electric
Co., 335 NLRB 142 (2001). We shall also modify the judge’s recom-
DAI-ICHI HOTEL SAIPAN BEACH 471
Specifically, with respect to the judge’s supplemental
decision, we find, contrary to the General Counsel’s con­
tention, that there is no basis for reversing the judge’s
discrediting of Fujii’s testimony. Standard Dry Wall,
supra.13 Accordingly, we affirm the judge’s rejection of
the allegation that the Respondent participated in an
unlawful conspiracy to defeat the Union in the Board
election. However, for the reasons set forth below, we
find merit in the Respondent’s contention that the judge
erred in concluding in his supplemental decision that a
violation of the Act could be based on the Respondent’s
failure to select employees for nonrenewal in order of
seniority.
Turning to the judge’s initial decision, we agree with
his findings that the Respondent demonstrated that a
reduction-in-force was necessary due to the downturn in
the Asian economy and that it was required to replace
seven of the alleged discriminatees with available, eligi­
ble local employees. With respect to the remaining al­
leged discriminatees, we find, as discussed below, that
except with respect to three employees the Respondent
has demonstrated that it would not have renewed their
contracts even in the absence of their union activity.
A. The Judge’s Seniority Analysis in His
Supplemental Decision
In its exceptions, the Respondent contends that the
Board should not adopt the judge’s supplemental deci­
sion for two reasons: (1) the judge lacked the authority to
reconsider his initial decision based exclusively on evi­
dence presented at the original hearing; (2) the judge’s
seniority analysis is legally incorrect. Assuming ar­
guendo that the judge had the authority to reconsider his
initial decision, we agree with the Respondent that the
judge’s rationale for the 8(a)(3) violations that he found
is inconsistent with established Board precedent.
At the outset, we observe that the General Counsel did
not argue that the retention of less senior nonunion em­
ployees over more senior union employees was evidence
mended Order to more closely conform to the violations found. In
addition, we do not believe that a broad cease-and-desist order is war-
ranted under the test set forth in Hickmott Foods, 242 NLRB 1357
(1979). Finally, we shall substitute a new notice in accordance with our
recent decision in Ishikawa Gasket American, Inc., 337 NLRB No. 29
(2001).
13 In this regard, the General Counsel excepts to the judge’s reliance
on a withdrawn exhibit (R. Exh. 40) to reject Fujii’s testimony and to
find that the Respondent directly hired 50 Filipino employees in the 6
months prior to the second election. The judge erred in relying on this
exhibit because the Respondent had withdrawn it and it therefore was
no longer part of the record. This error does not, however, affect the
judge’s credibility resolutions or factual findings. When the Respon­
dent withdrew the exhibit, the parties entered into a stipulation, which
was accepted into the record. The stipulation supports the judge’s
findings on the hiring of Filipino employees.
of discrimination. Instead, the General Counsel relied on
other bases for his argument that the Respondent selected
union activists for nonrenewal in much greater propor­
tion than those employees who had no or minimal union
activity. Further, the General Counsel does not endorse
the judge’s seniority analysis in his exceptions to the
judge’s supplemental decision. Relying on the discred­
ited testimony of Fujii, the General Counsel’s theory of
the case is that the Respondent failed to renew the con-
tracts of the alleged discriminatees as part of a scheme to
rid itself of Filipino union activists.
Furthermore, and contrary to the judge’s analysis, the
Board has squarely held that a failure to lay off employ­
ees in order of seniority cannot constitute evidence of
discriminatory motive in the absence of evidence that
seniority has been used in the past. Thus, in Documa­
tion, Inc., 263 NLRB 706 (1982), enfd. mem. 728 F.2d
780 (11th Cir. 1984), the Board reversed the judge’s
finding that two employees were discriminatorily se­
lected for inclusion in an otherwise lawful economic lay-
off, in violation of Section 8(a)(3). The Board found that
the judge erred in relying on the fact that the laid-off
employees were senior to several others in their depart­
ment who were retained. “Respondent’s officials testi­
fied without contradiction that Respondent has not and
does not utilize seniority as a basis for selecting employ­
ees for layoff. Accordingly, we conclude that Respon­
dent was under no obligation to do so here and its failure
to do so cannot be used as evidence of discriminatory
motive.” 263 NLRB at 706.
Documation was expressly followed by the Board in
Pullman Power Products, 275 NLRB 765, 767 (1985),
where the Board dismissed the complaint allegation that
four employees were discriminatorily selected for layoff.
The Board stated as follows:
[T]he General Counsel advances the position that sen­
iority of the men should have been a significant factor
in the selection process. We disagree because the re-
cord does not reveal that seniority had been used in the
past for layoff selection. Accordingly, the Respondent
was under no obligation to use seniority here and its
failure to do so cannot be used as evidence of discrimi­
natory motive on the part of the Respondent. See
Documation, Inc., 263 NLRB 706 (1982).
Here, as in Documation and Pullman Power, there is
no evidence that the Respondent has ever before fol­
lowed seniority in selecting employees for layoffs. In-
deed, there is no evidence that the Respondent ever used
seniority as a basis for any employment decision. There-
fore, under the above-cited precedent, the Respondent
was not obligated to follow seniority in selecting em-
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees for nonrenewal, and its failure to do so is not, by
itself, evidence of discriminatory motive.14
Having rejected the rationale in the judge’s supple-
mental decision for finding that the Respondent failed to
renew the employment contracts of nonresident employ­
ees in violation of Section 8(a)(3), we now turn to the
issue of whether the judge correctly recommended dis­
missal of that complaint allegation in his initial decision.
B. The Judge’s Wright Line Analysis in
His Initial Decision.
As stated above, in his initial decision, the judge found
that the General Counsel had met his Wright Line burden
of establishing that the employees’ union activity was a
motivating factor in the decision not to renew their con-
tracts. The judge concluded, however, that the Respon­
dent had shown that it would not have renewed these
employees even in the absence of their union activity
either because there was a qualified local resident seek­
ing the job or because of the reduction-in-force caused by
the Asian economic crisis. The General Counsel excepts
to this conclusion.
We agree with the judge that seven of the alleged dis­
criminatees were lawfully not renewed. As the judge
found, the Respondent actually attempted to renew these
employees’ contracts, but was unable to do so because,
under CNMI law, it was required to hire qualified local
employees. Therefore, as to these seven employees, we
find that even assuming that antiunion animus was a mo­
tivating factor in the failure to renew their contracts, the
Respondent has shown that it would have made the same
employment decision even in the absence of their union
activity. Accordingly, we shall dismiss the complaint
insofar as it alleges that the failure to renew the employ­
ment contracts of these seven employees violated Section
8(a)(3).
With respect to the remaining alleged discriminatees,
the Respondent introduced substantial evidence showing
that, in response to the adverse impact of the slowing
Asian economy on its business, the Respondent devel­
oped a reorganization plan that included reducing the
employee complement. Upper management set the spe­
cific numbers for downsizing in each department. The
plan was implemented in April 199815 and was scheduled
to be completed by the end of the year. The Respondent
gave the department heads the discretion to determine
14 Moreover, there is no evidence that the jobs of the alleged dis­
criminatees were skilled to the degree that disregarding experience in
the job might suggest a discriminatory motive. Cf. Kudzu Productions,
295 NLRB 82, 88 (1989) (employer’s disregard of employee’s 20-year
experience and expertise in motion picture printing evidence of dis­
crimination in layoff from color still print processing position).
15 All dates are in 1998 unless otherwise indicated.
which employees would not be renewed. However, the
department heads were not given the option of proposing
changes in the number of employees to be reduced.
The record indicates that the Respondent’s generally
preferred method for achieving the necessary reductions
in each department was to not renew the first contracts
arising for renewal after the reduction plan was imple­
mented in April. However, there was also a second
method that was sometimes used. In some cases, super-
visors waited until the end of the year to achieve the re­
ductions. The Respondent correctly asserts that the pat-
tern of not renewing the first contracts arising for re­
newal after the plan was implemented or not renewing
contracts arising at the end of the year was followed in
most of its departments. Specifically, the record shows
that, with respect to 29 named discriminatees, the pattern
was followed and explains their selection for nonre­
newal. Therefore, as to these employees, we find that
even assuming that antiunion animus was a motivating
factor in the failure to renew their contracts, the Respon­
dent has shown that it would have made the same em­
ployment decision in the absence of their union activity.
Accordingly, we shall dismiss the complaint insofar as it
alleges that the failure to renew the employment con-
tracts of these 29 additional employees violated Section
8(a)(3).
There are three instances, however, where the pattern
fails to explain why the contracts of the alleged discrimi­
natees were selected for nonrenewal. We discuss these
below.
C. Hermie Coronejo
Before discussing the Respondent’s failure to renew
the employment contract of Hermie Coronejo, we will
first address a separate complaint allegation concerning a
misconduct notice he received.
1. June 2 misconduct notice
The complaint alleges that the Respondent violated
Section 8(a)(3) and (4) by issuing an employee miscon­
duct notice to Hermie Coronejo on June 2. The judge
dismissed this allegation of the complaint, finding that
Coronejo’s union activity did not immunize him from
violating a reasonable company rule against employees’
punching other employees’ timecards. The General
Counsel contends that the judge was mistakenly consid­
ering a different disciplinary notice, one that was not
alleged as a violation in the complaint. The General
Counsel further contends that the record shows that the
June 2 notice referenced in the complaint is unlawful.
We find merit in these contentions.
The June 2 misconduct notice does not refer to
Coronejo’s punching another employee’s timecard. In-
DAI-ICHI HOTEL SAIPAN BEACH 473
stead, the misconduct is described as “No help to his
position even do there order he go home.”16 According
to Coronejo’s undisputed testimony, the incident giving
rise to this notice of misconduct occurred when his shift
ended on June 2. He asked, as all employees routinely
were required to do at the end of their shift, for permis­
sion to leave. Thus, he said to Assistant Executive Chef
Imura, “Chef, bye bye.” Another employee, Antonio
Rabe, was leaving the shift at the same time and also said
“bye” to Imura. Rabe was not a known union activist.
Imura started yelling at Coronejo and told him to go
home. Imura did not say why he was upset or yelling.
Imura did not say anything to Rabe. At the end of the
same day, Imura called Coronejo into the chef’s office,
handed him the notice of misconduct, and told him to
sign it. Coronejo signed the notice, adding “under pro-
test” after his name. Rabe did not receive any notice of
misconduct or other discipline.
The judge properly found in his initial decision that the
Respondent viewed Coronejo as the employees’ leader in
the Union’s effort to organize. Thus, he found that the
Respondent knew that Coronejo was the Union’s ob­
server at the first election, was the only employee to at-
tend the hearing on objections to the first election, held
organizational meetings in his room at the barracks,
passed out union flyers, wore union T-shirts and buttons
at the hotel when not on duty, and initiated several peti­
tions relating to working conditions. The judge also
found, with no exceptions by the Respondent, that the
Respondent engaged in unlawful interrogations and
threats concerning employees’ union activity and thus
harbored animus toward the employees’ organizational
effort. We therefore agree with the judge’s finding that
the General Counsel established under Wright Line that
antiunion sentiment was a motivating factor in the deci­
sion to issue a misconduct notice to Coronejo.
Contrary to the judge, however, we find that the Re­
spondent failed to show that it would have issued the
misconduct notice to Coronejo even in the absence of his
union activity. The judge’s analysis of the Respondent’s
defense was not based on the June 2 notice alleged in the
complaint and, therefore, is not relevant to the determina­
tion of whether the Respondent met its burden under
Wright Line.
As to the June 2 notice, the Respondent offered no ex-
planation. It did not adduce evidence conflicting with
Coronejo’s view of the events giving rise to the notice.
Nor did it come forth with evidence pointing to some
16 Nothing in the record discloses the meaning of this phrase. As
discussed below, Coronejo believed that the notice referred to his man­
ner of requesting permission to leave his shift. The Respondent did not
explain the language in the notice.
other reason for the notice. In addition, there is nothing
in the record to explain why Rabe, who was not a known
union activist, received no discipline for the same con-
duct that resulted in Coronejo’s notice. We therefore
find that the Respondent failed to rebut the General
Counsel’s showing that antiunion animus was a motivat­
ing factor in the decision to discipline Coronejo. Ac­
cordingly, we conclude that the Respondent violated Sec­
tion 8(a)(3) and (1) by issuing the June 2 misconduct
notice to Coronejo.17
2. November 23 nonrenewal of
employment contract
The complaint alleges that the Respondent violated
Section 8(a)(3) and (4) by failing to renew Coronejo’s
contract for employment as a cook. The judge dismissed
this complaint allegation, finding that although the Ge n­
eral Counsel met his initial Wright Line burden
Coronejo’s situation “is not really different from the oth­
ers, and as with the others, I conclude that he would not
have been renewed had there been no union or other pro­
tected activity.” Contrary to the judge, we find that
Coronejo’s situation is “really different from the others.”
As discussed above, the judge found, and we agree,
that Coronejo engaged in more protected activity and did
so more notoriously than any other unit employee, that
the Respondent knew of that protected activity, and that
the Respondent exhibited substantial animus toward it.
In addition, the supervisor who had discretion to deter-
mine who would not be renewed was the same supervi­
sor who had singled Coronejo out for discriminatory dis­
cipline in June. Thus, we conclude that the Ge neral
Counsel has made a very strong showing that antiunion
sentiment was a motivating factor in the decision not to
renew Coronejo’s contract. For the reasons stated below,
we find that the Respondent failed to show that it would
not have renewed his contract even in the absence of his
union activity.
In the cooks department, only three cooks were not re­
newed in the period from April through December.
Avelino Meneses was not renewed on April 15. From
that date until November 23, 11 cooks were renewed.
There were no reductions during this period. On No­
vember 23, Coronejo was not renewed. On the same
date, two other cooks were renewed. On November 28,
Richard Manalang was not renewed. Then, between No­
vember 28 and December 31, six cooks were renewed.
There were no further reductions.
17 We find it unnecessary to pass on the allegation that the Respon­
dent also violated Sec. 8(a)(4) by issuing the June 2 misconduct notice
to Coronejo, because the finding of such an additional violation would
not materially affect the remedy.
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these facts, the Respondent’s pattern defense does
not explain why Coronejo’s contract was selected for
nonrenewal. In the cooks department, only one em­
ployee was not renewed in April when the reduction plan
went into effect. Eleven others were renewed in the
period between April 15 and November 23, the date of
Coronejo’s nonrenewal. Thus, the reason for Coronejo’s
selection for nonrenewal was not that his was the first
contract arising after the plan was implemented.
Nor can Coronejo’s selection be explained, as the Re­
spondent urges, by the delay of managers who waited
until the last moment to make the reductions. Coronejo’s
contract came up for renewal in November. Eight em­
ployees were renewed after his contact was not renewed.
Indeed, two employees were renewed who came up for
renewal on the same date as Coronejo. Managerial de-
lay, therefore, does not explain why Coronejo, the ac­
knowledged principal union activist, was not renewed in
November when eight other employees were renewed in
November and December.
In sum, Coronejo’s case does not fit within the pattern
the Respondent followed in other instances when imple­
menting the reduction-in-force. Therefore, we find that
the Respondent has failed to rebut the General Counsel’s
showing that antiunion animus was a motivating factor in
the Respondent’s decision not to renew Coronejo’s em­
ployment contract. Accordingly, we conclude that the
Respondent violated Section 8(a)(3) and (1) by not re­
newing Coronejo’s contract on November 23.18
D. Rosanna Cayabyab and Luisa Adao
Rosanna Cayabyab and Luisa Adao were in the house-
keeping cleaner department. They are among the em­
ployees alleged in the complaint to have been discrimina­
torily nonrenewed in violation of Section 8(a)(3) and (1).
Like Coronejo, however, Cayabyab and Adao stood
out from the other alleged discriminatees. There is evi­
dence that each employee had been active in the Union’s
campaign in the second election. Further, the Respon­
dent does not dispute that it unlawfully interrogated both
Cayabyab and Adao about their union sentiments on
more than one occasion. Thus, in his initial decision, the
judge found that Housekeeping Supervisor Borlongan
and Housekeeping Manager Clamor each separately in­
terrogated Cayabyab. The judge further found that
Borlongan, Clamor, and Housekeeping Supervisor
Alarilla each separately interrogated Adao about her
union sentiments. In addition, both Borlongan and
Alarilla asked Adao whether her boyfriend, Teodoro
18 We find it unnecessary to pass on the allegation that the Respon­
dent also violated Sec. 8(a)(4) by not renewing Coronejo, because the
finding of such an additional violation would not materially affect the
remedy.
Adao whether her boyfriend, Teodoro Vivera, was a un­
ion organizer.
Relying on the singling out of Cayabyab and Adao for
unlawful interrogation and the animus shown by the Re­
spondent’s other undisputed unlawful conduct, we find
that the General Counsel established under Wright Line
that union activity was a motivating factor in the decision
not to renew Cayabyab and Adao. For the reasons stated
below, we find that the Respondent failed to show that it
would not have renewed their contracts even in the ab­
sence of their union activity.
From the April implementation of the Respondent’s
reduction plan until the end of the year, 30 contracts
came up for renewal in the housekeeping cleaner de­
partment. In the period from May 22 through November
15, 11 contracts came up for renewal. The first six of
these contracts were not renewed. Four of the remaining
five were renewed. Then, 19 contracts came up for re­
newal on December 31. Only six of these were not re­
newed, including the contracts of Cayabyab and Adao.
The contracts of 13 other employees with the same anni­
versary date as Cayabyab and Adao were renewed.
At first glance, the sequence of nonrenewals in the
housekeeping cleaner department appears to fit the gen­
eral pattern evident in other departments of not renewing
the contracts that expired either at the beginning or the
end of the relevant period. However, the “pattern” de­
fense fails to explain why Cayabyab and Adao were se­
lected for nonrenewal on the very same day that 13 other
employees, with the identical anniversary date, were re­
newed. The record is silent on that question. The Re­
spondent must be held accountable for this gap in the
record because, under the shifting burdens of Wright
Line, it is the party with the burden of proof.
In sum, the case for unlawful motive is strong in the
nonrenewals of the contracts of Cayabyab and Adao. It
is undisputed that they were subjected to multiple inter-
rogations. Further, some of the interrogations were con­
ducted by Clamor, the department manager responsible
for achieving the prescribed reductions by selecting the
contracts that would not be renewed. This course of
unlawful conduct, particularly by the selecting official,
raises the inference that Cayabyab and Adao’s union
activity was the reason they were selected for nonre­
newal on Decemb er 31 when 13 other employees were
renewed on the same date. The Respondent’s “pattern”
defense does not rebut this inference. Accordingly, we
conclude that the Respondent violated Section 8(a)(3)
and (1) by failing to renew the employment contracts of
Rosanna Cayabyab and Luisa Adao.
DAI-ICHI HOTEL SAIPAN BEACH 475
E. Employee Handbook and Employment
Contract Provisions
The Respondent did not except to the judge’s finding
that it violated Section 8(a)(1) by maintaining certain
provisions in its employee handbook that prohibit em­
ployees from discussing among themselves or with their
bargaining representative matters relating to wages,
hours, and other terms and conditions of employment.
The General Counsel contends that the Respondent’s
employment contracts for nonresident employees contain
the same provisions and excepts to the judge’s failure to
address the language in the contracts. We agree with the
General Counsel’s contention that the language in the
contracts should be addressed.
As indicated above, it is undisputed that the provisions
in the employee handbook violate Section 8(a)(1). Fur­
ther, the Respondent concedes that its employment con-
tracts contain the same provisions. In these circum­
stances, we conclude that the remedy for the unlawful
language in the employee handbook should expressly
extend to the Respondent’s other employment documents
admittedly containing the same language. See Raley’s,
Inc., 311 NLRB 1244 fn. 2, 1251–1252 (1993) (judge
found warranted in requiring that remedy for unlawful
rule be coextensive with application of rule). See also
Kinder-Care Learning Centers, 299 NLRB 1171, 1176
(1990) (employer required to rescind portions of rule in
employee handbook found unlawful and to post notice of
recission wherever rule was applied).19
ORDER
The National Labor Relations Board orders that the
Respondent, Pacific Micronesia Corporation d/b/a Dai-
Ichi Hotel Saipan Beach, Saipan, Commonwealth of the
Northern Mariana Islands, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their interest
in, or activity on behalf of, Hotel Employees & Restau­
rant Employees, Local 5, AFL–CIO and Commo nwealth
Labor Federation or any other labor organization.
(b) Threatening employees with termination or other
reprisals because of their interest in, or activity on behalf
of, the Union or any other labor organization.
(c) Creating the impression that employees’ activity on
behalf of the Union, or before the Board, is under
surveillance.
19 We find it unnecessary to pass on the complaint allegation that the
maintenance of these provisions in the employment contracts independ­
ently violates Sec. 8(a)(1). The finding of such an additional violation
would not materially affect the remedy.
(d) Directing employees not to associate with employ­
ees who are engaged in activity on behalf of the Union.
(e) Informing employees that selecting the Union as
their bargaining representative would be futile.
(f) Maintaining provisions in employee handbooks or
in employment contracts for nonresident employees that
prohibit employees from discussing among themselves or
with their bargaining representative matters relating to
wages, hours, and other terms and conditions of em­
ployment.
(g) Retaliating against employees for their union ac­
tivities by curtailing benefits.
(h) Discharging employees because of their interest in,
or activity on behalf of, the Union or because they en-
gage in the Board’s processes.
(i) Disciplining employees or failing to renew their
contracts for employment because of their interest in, or
activity on behalf of, the Union.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from its employee handbook and its em­
ployment contracts for nonresident employees provisions
prohibiting employees from discussing among them-
selves or with their bargaining representative matters
relating to wages, hours, and other terms and conditions
of employment, and advise the employees in writing that
these provisions are no longer being maintained.
(b) Restore the practice of allowing employees to take
used flowers from the hotel.
(c) Within 14 days from the date of this Order, offer
Loreta Rangamar full reinstatement (consistent with
CNMI law) to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges
previously enjoyed.
(d) Make Loreta Rangamar whole for any loss of earn­
ings and other benefits suffered as a result of the dis­
crimination against her, in the manner set forth in the
remedy section of the judge’s supplemental decision.
(e) Within 14 days from the date of this Order, offer
Hermie Coronejo, Rosanna Cayabyab, and Luisa Adao
employment contracts (consistent with CNMI law).
(f) Make Hermie Coronejo, Rosanna Cayabyab, and
Luisa Adao whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
judge’s supplemental decision.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the discharge of Loreta
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rangamar, the June 2, 1998 warning issued to Hermie
Coronejo, and the failure to renew the employment con-
tracts of Hermie Coronejo, Rosanna Cayabyab, and
Luisa Adao. Within 3 days thereafter notify the employ­
ees in writing that this has been done and that Ranga­
mar’s discharge, the June 2, 1998 warning to Coronejo,
and the failure to renew the employment contracts of
Coronejo, Cayabyab, and Adao will not be used against
them in any way.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) With 14 days after service by the Region, post at its
facility on the Island of Saipan, CNMI, copies of the at­
tached notice marked “Appendix.”20 Copies of the no­
tice, on forms provided by the Regional Director for Re­
gion 20, after being signed by the Respondent’s author­
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al­
tered, defaced, or covered by other material. In the event
that, during the pendency of these proceedings, the Re­
spondent has gone out of business or closed its facility
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 1998.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not found.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
An Agency of the United States Government
The National Labor Relations Board has found that we vio­
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT interrogate our employees concerning
their interest in, or activity on behalf of, Hotel Employ­
ees & Restaurant Employees, Local 5, AFL–CIO and
Commonwealth Labor Federation or any other labor or­
ganization.
WE WILL NOT threaten our employees with termination
or other reprisals because of their interest in, or activity
on behalf of, the Union or any other labor organization.
WE WILL NOT create the impression that employees’ ac­
tivity on behalf of the Union, or before the Board, is un­
der surveillance.
WE WILL NOT direct our employees not to associate
with employees who are engaged in activity on behalf of
the Union.
WE WILL NOT inform our employees that selecting the
Union as their bargaining representative would be futile.
WE WILL NOT maintain provisions in the employee
handbook and in employment contracts for nonresident
employees that prohibit employees from discussing
among themselves or with their bargaining representative
matters relating to wages, hours, and other terms and
conditions of employment.
WE WILL NOT retaliate against our employees for their
union activities by curtailing benefits.
WE WILL NOT discharge our employees because of their
interest in, or activity on behalf of, the Union or because
they engage in the Board’s processes.
WE WILL NOT discipline employees or fail to renew
their contracts for employment because of their interest
in, or activity on behalf of, the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL remove from our employee handbook and our
employment contracts for nonresident employees provi­
sions prohibiting employees from discussing among
themselves or with their bargaining representative mat­
ters relating to wages, hours, and other terms and condi-
DAI-ICHI HOTEL SAIPAN BEACH 477
tions of employment, and WE WILL advise the employees
in writing that these provisions are no longer being main­
tained.
WE WILL restore the practice of allowing employees to
take used flowers from the hotel.
WE WILL, within 14 days from the date of the Board’s
Order, offer Loreta Rangamar full reinstatement to her
former job or, if that job no longer exists, to a substan­
tially equivalent position, without prejudice to her senior­
ity or any other rights or privileges previously enjoyed.
WE WILL make Loreta Rangamar whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Hermie Coronejo, Rosanna Cayabyab, and
Luisa Adao employment contracts.
WE WILL make Hermie Coronejo, Rosanna Cayabyab,
and Luisa Adao whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis­
charge of Loreta Rangamar, the June 2, 1998 warning to
Hermie Coronejo, and the failure to renew the employ­
ment contracts of Hermie Coronejo, Rosanna Cayabyab,
and Luisa Adao. Within 3 days thereafter, WE WILL no­
tify the employees in writing that this has been done and
that Rangamar’s discharge, the June 2, 1998 warning to
Coronejo, and the failure to renew the employment con-
tracts of Coronejo, Cayabyab, and Adao will not be used
against them in any way.
PACIFIC MICRONESIA CORPORATION D/B/A DAI­
ICHI HOTEL SAIPAN BEACH
Marilyn O’Rourke, Esq. and David M. Bigger, Esq., for the
General Counsel.
Ronald B. Natalie, Esq., of Washington, D.C., and Stephanie L.
Marn, Esq., of Honolulu, Hawaii, for the Respondent.
Joseph A. Creitz, Esq., of Oakland, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Saipan, Commonwealth of the Northern
Mariana Islands, on various days between April 26 and May
14, 1999, upon the General Counsel’s amended consolidated
complaint alleging multiple violations of Section 8(a)(1), (3),
(4), and (5) of the National Labor Relations Act.
The Respondent generally denied that it committed any vio­
lations of the Act and affirmatively contends that the union
certification is invalid and that economic and other considera­
tions caused its failure to renew the employment contracts of
the alleged discriminatees.
On the record as a whole, including my observation of the
witnesses, briefs and arguments of counsel, I make the follow­
ing findings of fact, conclusions of law, and recommended
Order.
I. JURISDICTION
The Respondent is a corporation of the Commonwealth of
the Northern Mariana Islands (CNMI) engaged in the operation
of a hotel and restaurants on the Island of Saipan. In the con-
duct of this business, the Respondent annually derives gross
revenues in excess of $500,000 and annually purchases and
receives goods and materials directly from points outside the
CNMI valued in excess of $50,000. The Respondent admits
and I conclude that it is an employer engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVE D
Hotel Employees & Restaurant Employees, Local 5, AFL–
CIO and Commonwealth Labor Federation (the Union) is ad­
mitted to be, and I find is, a labor organization within the mean­
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR L ABOR PRACTICES
A. The Facts
In recent years there has developed on the Island of Saipan
an extensive resort hotel industry, catering principally to Japa­
nese and Korean tourists. The Respondent operates one such
hotel. It is owned by Japanese interests and most of its manag­
ers are Japanese. Most of the low-level supervisors and rank
and file employees are Filipinos. Some supervisors and em­
ployees are citizens of the CNMI, indeed, CNMI law requires
that at least 20 percent of the employees be residents. All alien
employees of the Respondent, whether management, supervi­
sion, or rank and file, work on 1-year contracts approved by an
agency of the CNMI. Under a set of complex regulations em­
ployee contracts can be renewed for successive 1-year periods,
and typically are. Thus, some employees have many years of
service. However, when an employee is up for renewal, if a
qualified local resident applies, he or she must be hired. How-
ever, in years before the events here almost all the nonresident
contract workers were renewed each year.
In 1994, the Union began an organizational campaign among
the Respondent’s employees, which resulted in an election the
Union lost on March 21, 1996. Objections were filed, the elec­
tion was set aside and there was a rerun election on February 5,
1998, which the Union won by a vote of 131 to 121. The Re­
spondent’s objections were overruled by the Regional Director
and the Board denied review. Dai-Ichi Hotel Saipan Beach,
326 NLRB 458 (1998). Thus on March 30, the Union was
certified as the employees’ bargaining representative.1
1 The unit is:
All full-time and regular part -time employees employed by the (Re­
spondent) in the Commonwealth of the Northern Mariana Islands; ex-
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To test the Board’s certification, the Respondent has refused
to bargain with the Union, which was the subject of a previous
refusal to bargain complaint against the Respondent, wherein
the Board granted summary judgment. Dai-Ichi Hotel Saipan
Beach, 327 NLRB No. 131 (1998) (not included bound vol­
ume). The Respondent appealed this order to the D.C. Circuit
of the United States Court of Appeals.2 Claiming that the certi­
fication was invalid, the Respondent admits that it refused to
bargain about changes in terms and conditions of employment
alleged in this consolidated complaint: changing its practice of
allowing employees to take flower arrangements; transferring
cooks; increasing the cost to employees for housing and meals;
ceasing to pay service charges obtained from customers’ meal
coupons; ceasing to provide laundry detergent; ceasing to allow
employees to take drinking water; reducing the number of holi­
days, vacation, and sick days; failing to renew contracts of
nonresident workers; and, failing to furnish requested informa­
tion concerning nonrenewals. Reassigning the cooks and the
drinking water allegations are argued not to be violations on the
merits.
In addition to the various refusal-to-bargain allegations, the
complaint alleges many statements by supervisors and manag­
ers to have violated Section 8(a)(1) and that the Respondent’s
failure to renew the employment contacts of 35 individuals
(including Hermie Coronejo who was alleged separately) was
violative of Section 8(a)(3). There are also alleged unlawful
discharges and other discipline in violation of Section 8(a)(3)
and (4). The facts and analysis of each allegation will be
treated seriatim below.
B. Analysis and Concluding Findings
1. Refusal to bargain
a. Failure to renew contracts
The principal issue in this matter, alleged as violations of
both Section 8(a)(3) and (5), is the Respondent’s failure to re-
new the employment contracts of 35 nonresident workers as
they expired on various dates from February 17 to December
31, 1998.3 The Respondent admits that the Union requested,
and it refused, to bargain about this issue, arguing that the Un­
ion’s certification is invalid.
The Respondent also argues (though more in connection
with the discrimination theory, infra) that the nonrenewals were
caused by economic conditions. In general, it is undisputed
that in 1997 the Asian economy took a severe downturn, and
this had a substantial impact on the resort hotel industry of
Saipan. The number of Japanese guests was greatly reduced,
and according to the Respondent’s assistant general manager,
Yasuhisa Iwabuchi, the number of Koreans, which had been
about 20 percent, “went down all the way to almost zero. And
there is an increase, slight increase, from the beginning of 1999,
but then at this time it could be less than five percent.” The
cluding all managerial employees, professional employees, confiden­
tial employees, guards, and supervisors as defined in the Act.
2 Dai-Ichi Hotel Saipan Beach v. NLRB, 219 F.3d 661 (D.C. Cir.
2000).
3 All dates hereafter are in 1998, unless otherwise indicated.
Respondent’s evidence shows that between February 1997 and
February 1998 the hotel lost about $383,147, whereas its pro­
jected losses between February 1998 and February 1999 were
$6,587,973. Therefore, argues the Respondent, a reorganiza­
tion plan was necessary and this included downsizing the em­
ployee complement, as well as taking other cost-cutting steps.
Alleged as violations of the Act.
Though the evidence supports the conclusion that as a result
of economic conditions cost-cutting was indicated, including
reducing the employee complement, it does not follow that the
Respondent could implement such actions without bargaining.
To the contrary, the decision to lay off employees while con­
tinuing to engage in the same business with essentially the
same technology, but with fewer employees, is a mandatory
subject of bargaining. Holmes & Narver/Morrison-Knudsen,
309 NLRB 146 (1992).
In dealing with this issue, the Supreme Court distinguished
between those decisions “involving a change in the scope and
direction of the enterprise” and which were “akin to the deci­
sion whether to be in business at all.” Such decisions are out-
side the duty bargain set forth in Sections 8(a)(5) and 8(d).
First National Maintenance Corp. v. NLRB, 452 U.S. 666, 667
(1981), citing Fibreboard Paper Products Corp. v. NLRB, 379
U.S. 203 (1964).
I am satisfied that the decision not to renew the contracts of
approximately 69 employees fell within that category of deci­
sions “such as the order of succession of layoffs and recalls”
which are an aspect of the employer/employee relationship and
which therefore was a mandatory subject of bargaining under
the First National Maintenance test.
The Respondent’s decision to reduce its staff did not involve
plant relocation, capital investment nor was time a particularly
critical factor, since the nonrenewals continued throughout
1998. The Respondent merely decided that conditions were
such that it should reduce its work force, and it left
implementation of this to the subjective judgment of first line
supervisors. They were not told whom to terminate. They
were simply given a number to be met by December 31. This
is precisely the type of management decision about which the
employees’ representative ought to have been given the
opportunity to bargain.
In March, the Union wrote requesting the Respondent to
bargain about nonrenewals and sought information pertaining
to those employees slated for nonrenewal. The Respondent
ignored the Union’s request for bargaining and for information.
Counsel for the General Counsel acknowledges that as a re­
sult of the economic downturn affecting the Saipan hotel indus­
try, “(s)ome layoffs were undoubtedly necessary.” Neverthe­
less, the nonrenewals here were effected without the Respon­
dent having complied with its statutory obligation to bargain
with the certified representative of its employees. Accordingly,
I conclude that the Respondent violated Section 8(a)(5) and that
it should be ordered to offer employment contracts to all em­
ployees who were not renewed between February 17, and De­
cember 31, 1998, consistent with CNMI law, and make them
whole for any loss of wages and other benefits they may have
suffered.
DAI-ICHI HOTEL SAIPAN BEACH 479
b. Refusal to furnish information
In its amended answer, the Respondent admitted since March
23, the Union requested the following information:
(i) The names, wage rates and classifications of employees
whose contract was not renewed since January 1, 1991, to
the present;
(ii) The names, wage rates and classifications of employees
hired and/or who entered in an initial employment contract
with the (Respondent) since January 1, 1992, to the present;
(iii) The written procedure utilized by the (Respondent) which
illustrates how decisions are made regarding whether an em­
ployee’s contract is renewed; and
(iv) The person in (Respondent’s) management who ulti­
mately decides whether a contract is renewed or not.
While admitting that it has refused to furnish this informa­
tion, the Respondent denied that such is necessary in order for
the Union to perform its duty as the employees’ bargaining
representative. Principally, however, the Respondent contends
that it need not furnish the information because the Union’s
certification is invalid.
Since the decision not to renew the contracts of bargaining
unit employees is a mandatory subject of bargaining, it follows
that information relating to that issue is the type of information
to which the Union is entitled in order to carry out its function
as the employees’ bargaining representative. Ryder Distribu­
tion Resources, Inc., 302 NLRB 76 (1991). Accordingly, I
conclude that by refusing to furnish this information the Re­
spondent violated Section 8(a)(5).
c. Unilateral changes of past practice
By memo dated February 23, the Respondent advised em­
ployees that they would not be “allowed to bring-out flowes
[sic] intended for restaurant use.” The Respondent maintains
that this simply stated a long-standing policy and was therefore
not a unilateral change.
However, the credible evidence shows that in fact employees
were previously allowed to take used flowers, though it appears
they first received permission from a supervisor. I find that the
past practice was to allow employees to take used flowers and
that memo prohibiting such on penalty discipline was a change
from past practice.
To be able to have used flowers on occasion is clearly a triv­
ial benefit. It is nevertheless a benefit which employees en-
joyed and which the Respondent unilaterally curtailed. I there-
fore conclude that by doing so without bargaining with the
Union, the Respondent violated Section 8(a)(5).
It is also alleged that this change was in retaliation for a ma­
jority of the employees having voted in favor of the Union and
was thus violative of Section 8(a)(3) and was violative of Sec­
tion 8(a)(4). While there is insubstantial credible evidence that
the Respondent was motivated by employees having partici­
pated in the processes of the Board, I do conclude this act was
in retaliation for the employees’ union activity. The memo was
written within days after the second election. No reason was
given why the Respondent would deny what had previously
been a trivial benefit, or time the announcement when it did.
The only reasonable conclusion is that the Respondent reacted
to the employees’ union activity.
In paragraph 28(b) it is alleged that on March 15, the Re­
spondent unilaterally transferred cooks from the North Wing
Kitchen to the South Wing Kitchen. This is alleged to have
been violative of Section 8(a)(5), because the Respondent did
not bargain with the Union; Section 8(a)(3) because it discrimi­
nated against union supporters, in particular Hermie Coronejo,
one of the transferees and the Union’s leading supporter among
employees; and Section 8(a)(4).
The North Wing Kitchen services four restaurants and the
South Wing Kitchen prepares food for the bake shop, two res­
taurants, and the employees cafeteria. Each of the restaurants
offers different ethnic food. Therefore assignment to a particu­
lar kitchen means the cook will have to prepare a particular
kind of food. This fact is argued by the General Counsel to
have constituted an adverse change in working conditions; and
by the Respondent as a reason for the transfers—so that cooks
could be cross-trained.
No doubt there was such a transfer and the Respondent is-
sued a memo so stating on March 6, nevertheless, the evidence
is unpersuasive that the employees had a vested right to work­
ing in one kitchen rather than the other or that there were ad-
verse consequences associated with the transfer of any of the
cooks.
While the General Counsel argues that never before had
there been a transfer of a group of cooks announced by memo,
it is undisputed that in fact cooks are transferred between the
two kitchens. Indeed Coronejo had been transferred.
Coronejo’s testimony concerning the alleged adverse change
in working conditions included that he got a meaner supervisor
(meaning that the other cooks got a more benevolent one), that
his days off were changed, that he lost overtime and that he had
to learn to cook different food. If in fact there was a provable
loss of income as a result of the transfer, then there would be
grounds for finding a violation, but Coronejo’s testimony does
not tie the loss of overtime to working in one kitchen as op­
posed to the other. The other matters testified to by Coronejo
do not amount to working conditions which are mandatory
subjects of bargaining.
In short, the Respondent had a past practice of transferring
cooks and a reasonable basis for doing so (cross-training). The
transfers did not harm employees in any significant, provable
way. Finally, an employer has the right to manage its business,
which includes the right to transfer employees from one job to
another. Nor is there persuasive evidence that the transfer was
effected because employees participated in the Board’s proc­
esses. I therefore conclude that the General Counsel failed to
prove by a preponderance of the credible evidence that the
Respondent violated Section 8(a)(3), (4), or (5) by transferring
the cooks on March 6.
It is alleged that on April 1, the Respondent unilaterally in-
creased the cost to nonresident employees for housing and
meals [from $35 per month to $70 per month, par. 28(c)];
ceased paying employees the restaurant service charges ob­
tained from customers’ meal coupons [par. 28(d)]; and on Janu­
ary 1, 1999, reduced the number of holidays, and days of vaca­
tion and sick leave [paragraph 28(g), which the parties also
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
seem to agree covers elimination of the annual Christmas
party]. It is alleged these unilateral changes were violative of
Section 8(a)(5).
On brief, counsel for the Respondent concedes that these
changes were made without prior notice to the Union or giving
the Union an opportunity to bargain. Counsel concedes that if
the Respondent does not prevail in its appeal to the court of
appeals, “the Hotel has no defense to the charges based on
these changes.”
Given counsel’s admission, and the fact that the items
changed clearly are mandatory subjects of bargaining, I con­
clude that the Respondent violated Section 8(a)(5) as alleged in
paragraphs 28(c), (d), and (g) of the complaint.
I further reject the Respondent’s contention that there should
be no make-whole remedy for these violations since the
changes were instituted for economic reasons. Counsel cites no
authority for such a proposition and I know of none. The mere
fact that the Respondent was economically better off after
committing an unfair labor practice does not negate a full rem­
edy. Nor were these benefit changes so de minimis as to make
inappropriate a bargaining order, as argued for by counsel for
the Respondent.
In paragraph 28(e) it is alleged that on November 2 the Re­
spondent ceased providing employees with free laundry deter-
gent because employees filed charges or gave testimony under
the Act and thus violated Section 8(a)(4); and, because this
action was without notice to the Union, or giving the Union an
opportunity to bargain, it was violative of Section 8(5).
It is undisputed that prior to November 2, the Respondent
furnished each unit employee one box of laundry detergent
monthly and required employees to wash their work uniforms.
By memo of November 2, the Respondent rescinded this pol-
icy, and employees are now required to buy their own deter-
gent. Although this was a fairly minimal benefit (estimated at
$10 per month), it was a regular benefit to employees, was an
integral part of their compensation and as such was mandatory
subject of bargaining, which the Respondent was not privileged
to change unilaterally. By failing to give the Union notice and
an opportunity to bargain about discontinuing this benefit, the
Respondent violated Section 8(a)(5), as alleged in paragraph
28(e). E.g., Beverly Enterprises, 310 NLRB 222 (1993), enfd.
in pertinent part 17 F.3d 580 (2d Cir. 1994), where the em­
ployer unilaterally eliminated providing free coffee.
There is, however, insufficient credible evidence that the Re­
spondent rescinded its laundry detergent policy because the
employees had participated in the Board’s processes, or for
other reasons proscribed by Section 8(a)(4). Accordingly, I
will recommend dismissal of the 8(a)(4) allegation as to the
laundry detergent.
It is alleged in paragraph 28(f) that on November 2, the Re­
spondent ceased permitting employees to take drinking water
from the hotel for their personal use. The Respondent does not
dispute the facts of this allegation, but maintains that its duty is
only to provide drinking water for employees and that it has
installed water dispensers in the barracks.
The General Counsel acknowledges that there are water dis­
pensers in the barracks, but notes that the dispensers often run
out and then employees must buy their own water (tap water in
Saipan is not potable). Since Coronejo testified that sometimes
employees use the furnished water to rinse themselves after
showering, such is a waste of a precious resource the cause of
the dispensers running dry. Though Coronejo did testify to
such a use, there is otherwise no evidence for the Respondent’s
argument that rampant nondrinking wastage of water is the
reason there is often no drinking water in the barracks. Further,
the Respondent’s argument in this respect does not cover em­
ployees who do not live in the barracks.
Finally, the method by which the Respondent fulfills its ob­
ligation to furnish drinking water for employees is clearly a
condition of employment on Saipan and as such is a mandatory
subject of bargaining. By changing its policy, the Respondent
violated Section 8(a)(5) as alleged.
2. 8(a)(1) violations
a. Statements of supervisors and managers
In paragraphs 7 through 24 of the consolidated complaint,
various of the Respondent’s first line supervisors, as well as
certain managers, are alleged to have made statements to unit
employees primarily in the nature of unlawful interrogation,
threats, and the futility of selecting a bargaining representative.
Nearly all the witnesses on these issues testified in either Taga­
log (the language of the Philippines and that of most of the unit
employees as well as many first-line supervisors) or Japanese
(the language of most of the managers). However, most of the
statements alleged violative of Section 8(a)(1) were in English,
typically a second language for both the speaker and recipient.
In such cases, while the witness attempted to remember the
English words spoken, there is a strong suspicion that they
remembered the event in their native language and translated
when testifying. In short, I find that the precise English words
testified to by either witnesses for the General Counsel or the
Respondent are unreliable. Nevertheless, the totality of testi­
mony convinces me that many unlawful statements were made
to unit employees in the period preceding the second election.
In a specific defense to many of these allegations, the Re­
spondent contends that each of its supervisors received “TIPS”
training, from which I am asked to conclude that they did not
commit the unfair labor practices alleged. By this training,
various counsel for the Respondent told supervisors they were
not to threaten, interrogate, promise benefits to, or engage in
surveillance of employees. The fact supervisors and managers
may have been informed concerning what constitutes an unfair
labor practice does not tend to prove that they did not do so. To
the contrary, the tenor and scope of the 8(a)(1) allegations are
consistent with admissions of Personnel Manager Peding San­
chez that “The Japanese managers were very much against
having the Union come into the Hotel.”
In evaluating the allegations of unlawful interrogation, I am
guided by Rossmore House, 269 NLRB 1176 (1984); Sunny-
vale Medical Clinic, 277 NLRB 1217 (1985); and subsequent
cases. E.g., WestPac Electric, Inc., 321 NLRB 1322 (1996)
(Chairman Gould and Member Browning specifically not rely­
ing on Rossmore House and Sunnyvale). Noting Section 10(c),
it is the Board’s position that interrogation of employees about
their union activity is not per se violative of the Act in the ab­
sence of promises or threats, but can be violative if the interro-
DAI-ICHI HOTEL SAIPAN BEACH 481
gation tends to restrain, coerce, or interfere with employees’
Section 7 rights when considering all the circumstances. In
addition to the specific interrogations here, relevant factors
include the intensity of the Respondent’s campaign against the
Union, the number of supervisors interrogating employees, and
the fact that by in large, the employees were contract workers
who could be sent home at the end of their contract year.
(1) JULIANO MATRASUTARO
Paragraph 7 alleges that Chief Steward Juliano Matrasutaro
interrogated employees in December 1997, and January 1998.
On this allegation Teodoro Vivero testified (in halting English
because his first language is a dialect different from that of the
interpreter) that either in December or January Matrasutaro
talked to him about the Union, and asked “if I like Union or
not.”
Matrasutaro denied that he threatened, interrogated, made
promises, or spied on employees and specifically denied that he
ever asked Vivero how he would vote in the election. He did
not, however, deny the statement attributed to him by Vivero—
“if I like Union or not.”
As noted above, the credibility of witnesses whose first lan­
guage is not English is difficult to determine. Nevertheless, I
generally credit Vivero and conclude that Matrasutaro made the
statement attributed to him, which Matrasutaro did not in fact
deny. I conclude that Matrasutaro interrogated Vivero about
his position concerning the Union and in the context of this
case, was violative of Section 8(a)(1).
(2) YOICHI KAWASAKI
In paragraph 8 and its subparagraphs (a) through (i) it is al­
leged that Assistant Manager of the Food And Beverage De­
partment Yoichi Kawasaki, committed various violations of
Section 8(a)(1):
Elena Almariego testified that Kawasaki told her that “the
election is coming in, so the Union cannot help you,” to which
she replied, “that the Union can help me one hundred percent.”
I conclude, as argued by the Respondent, that Kawasaki’s
statement did not suggest the futility of employees selecting the
Union—there was, for instance, no implication that the Re­
spondent would not bargain with the Union. I therefore con­
clude that paragraph 8(a) be dismissed.
Paragraph 8(b) alleges several instances of unlawful interro­
gation by Kawasaki. Thus Luisito Alonzo testified that in early
January Kawasaki asked, “what [sic.] you who will vote for
yes.” Then later in January, Kawasaki asked him “how’s the
score in the Claret restaurant, who vote no or yes?”
Minette Floro testified that Kawasaki asked her on a couple
occasions who her friends were and in April he asked, “What
do you feel about the Union in the hotel.” She answered that
she believed the Union would help.
Finally, Elena Almariego testified that just before the second
election, Kawasaki asked her, “What I’m doing and why I’m
supporting the Union?”
Kawasaki denied making these statements, and generally that
he interrogated any employee, denials which I do not credit.
Rather, I credit Alonzo, Floro, and Almariego and conclude
that Kawasaki made the statements attributed to him. In the
context of this case, I conclude that each of these questions by
Kawasaki was unlawful interrogation and violative of Section
8(a)(1).
The interrogation alleged in paragraph 8(c) concerns a peti­
tion employees had circulated complaining about Chief Cook
Danilo Dela Cruz in October. Rangamar testified that Kawa­
saki told her she had no right to sign the petition, since she was
not a cook, and asked her why she had signed the petition.
Kawasaki also asked Alonzo why he had signed the petition,
since he did not work in the kitchen. The General Counsel
argues that these questions were accusatory and therefore viola­
tive of the Act. The Respondent maintains they were appropri­
ate, inasmuch as neither Rangamar nor Alonzo was under Dela
Cruz’s supervision. I agree with the Respondent that Kawa­
saki’s questioning here was not unlawful interrogation.
In October Kawasaki is alleged to have instructed employees
to refrain from and rescind their union and/or concerted activi­
ties. This alleged to have occurred when Kawasaki questioned
Rangamar about the Dela Cruz petition and told her she had
“no right to sign the petition” because she was not a cook. And
he told her to “erase” her name. While I agree that the question
did not rise to the level of unlawful interrogation, to tell an
employee to rescind what was clearly protected concerted ac­
tivity, was unlawful and violative of Section 8(a)(1).
Kawasaki is alleged to have impliedly threatened employees
that their annual contracts might not be renewed because of
their union or protected activity. Almariego testified that be-
fore her contract expired on November 20, Kawasaki asked her
if she thought her contract would be renewed. Kawasaki de­
nied having this conversation, and, the Respondent notes, at the
time this was supposed to have occurred, Kawasaki was no
longer in the Claret restaurant, having been transferred to Ban­
quets. While this fact does not necessarily prove that Kawasaki
and Almariego no longer spoke, it is some support for Kawa­
saki’s denial. Beyond that, however, to find the violation al­
leged would require too much to be implied. I therefore con­
clude that Kawasaki did not make the threat alleged in para-
graph 8(e).
The allegations in paragraphs 8(f) and (g) concern Kawa­
saki’s interrogation of Rangamar on November 18, about hav­
ing seen her with other employees of the Respondent at the
Horiguchi Building, where various federal agencies have of­
fices, including, the Department of Labor (where the Board
agents use offices), and the United States District Court.
Though her testimony is somewhat confusing and convo­
luted, Rangamar testified that Kawasaki started the conversa­
tion by asking why “I like helping people,” noting that he had
seen her and another employee at the Horiguchi Building. He
asked who they saw and he also told her he had seen her and
Ronaldo Del Rosario at CNMI Labor (a different place). Ka­
wasaki admitted that he had seen Rangamar at the Horiguchi
Building, but denied questioning her or Del Rosario about see­
ing them.
On balance, I credit Rangamar (but not Del Rosario, infra)
over Kawasaki and conclude that in fact he interrogated her
about concerted activities and gave the impression that such
were under surveillance. The Respondent thereby violated
Section 8(a)(1).
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However, it is a stretch to also conclude that investigation of
unfair labor practices was under surveillance, as argued by the
General Counsel, simply because the Board uses offices in the
Horiguchi Building. In fact there are several Federal agencies
housed in that building. Board agents use offices of the De­
partment of Labor.
At the hearing the complaint was amended to include a threat
by Kawasaki about 5 days after the election wherein he said to
Dina Soriano, “Okay, that the Union is Union win—Union win,
so I can—I guarantee that reduce staff. Because we have 270
Dai-Ichi staff, and he said we’re going to reduce—reduce 70
staff. This—that will be this year, he said.”
Kawasaki denied this testimony of Soriano, which denial
ought to be credited argues the Respondent because Soriano
was not a credible witness and the alleged statement was heard
by two General Counsel witnesses, neither of whom testified to
this event though testifying about other matters involving Ka­
wasaki. I am persuaded by the Respondent’s argument and
conclude that Kawasaki did not make the threat attributed to
him by Soriano.
(3) HITOSHI ITO
The allegations in paragraph 8(h) (and presumably also par.
8(i)) were amended at the hearing to be attributed to Executive
Chef Hitoshi Ito and occurred during an investigatory interview
to determine whether Teodoro Vivero would keep his job.
According to Vivero, and undenied by Ito or Sanchez, who was
also present, Ito twice asked why Vivero was always with
Coronejo. He also told Vivero to stay away from Coronejo.
Coronejo was well known to be the leading employee advo­
cate on behalf of the Union’s organizational campaign. I there-
fore conclude that Ito’s interrogation of Vivero and admonition
to stay away from Coronejo interfered with employees’ Section
7 rights as alleged in paragraph 8(h). While Vivero was not a
particularly credible witness, his testimony about this was un­
denied and I therefore find it occurred in substance as he testi­
fied.
However, I find nothing in Vivero’s testimony which
amounts to a threat of unspecified reprisals should Vivero con­
tinue to associate with Coronejo. Therefore, I shall recommend
that paragraph 8(i) be dismissed.
I reject the Respondent’s argument that the allegation as to
Ito should be dismissed as time-barred by Section 10(b). Not-
withstanding that Ito was not named in the charges, it is clear
they cover these events. E.g., Well-Bred Loaf, 303 NLRB 1016
(1991).
(4) MAKOTO SAITO
It is alleged in paragraph 9 that Food and Beverage Depart­
ment Manager Makoto Saito unlawfully interrogated employ­
ees in January. This allegation is apparently based on the tes­
timony of Almariego to the effect that on one occasion Saito
“reminds me that the election is coming.” There is no evidence
that in fact Saito ever asked any employee about the union ac­
tivity. Therefore, I conclude that the General Counsel failed to
establish this allegation and I shall recommend that it be dis­
missed.
(5) LAMBERTO APOSTOL
Paragraph 10 alleges that in January, Chief Cook Lamberto
Apostol unlawfully interrogated employees. This is based on
the testimony of Maximo Piol who said that in January Apostol
“asked me what I’m doing there” when he was passing out
union flyers. This occurred in the employee barracks, where
Apostol also lived.
Although interrogation of an employee about whether he en-
gaged in union activity is no doubt unlawful, here Apostol ob­
served Piol and in effect stated that Piol should not be passing
out such handbills since he was a contract worker. It does not
appear from Piol’s testimony that in fact Apostol interrogated
him about his union activity. Accordingly, I shall recommend
that paragraph 10 be dismissed.
(6) RAUL RUEDA
In paragraph 11(a) it is alleged that Raul Rueda, assistant
section manager of the food and beverage department, unlaw­
fully interrogated employees on various dates in January and
February. In support of this allegation is the testimony of Al­
mariego, who said that in February, after the second election,
Rueda “asked me why did I do that to the company.” Rueda
did not deny asking the question attributed to him; however, the
Respondent argues he did not do so because he received TIPS
training.
As noted above, I do not believe the TIPS training tends in
any way to prove that supervisors did or did not make any par­
ticular statement. Thus I conclude that Rueda asked Almariego
something along the lines of why she did “that to the com­
pany.” Implied in this question is Rueda’s supposition, at least,
that she had voted for the Union; however, the question is de-
void of any kind of threat or promise of benefit, and generally
is not the sort of interrogation which the Board generally finds
unlawful.
Allen Tiquio testified that in January, following a meeting at
the barracks in Coronejo’s room, Rueda “ask me why I attend
the Union meeting.” Rueda denied seeing Tiquio at a union
meeting (though Rueda lives in the barracks and many meet­
ings were held there), or asking if he attended meetings. On
balance, I credit Tiquio over Rueda and conclude he asked the
question attributed to him. I further conclude this is the sort of
interrogation which the Board finds unlawful. Perdue Farms,
323 NLRB 345 (1997).4
During the conversation Rueda had with Tiquio noted above,
Tiquio testified “he told me the Union cannot help employees.
And he told me look at the other hotel like the Grand Hotel, a
lot of the employees went home, they were sent back to their
home, but did the Union help them?” By this statement, Rueda
is alleged to have informed employees in January that selection
of the Union would be futile and to have threatened them with
nonrenewal. I agree. I credit Tiquio over Rueda, and conclude
that this event happened generally as testified to by Tiquio. I
conclude that Rueda indicated that selecting the Union would
be futile and if employees did so, their contracts might not be
4 Alice Figueroa also gave testimony about interrogation by Rueda;
however, this apparently occurred prior to the first election and would
therefore be barred by Sec. 10(b).
DAI-ICHI HOTEL SAIPAN BEACH 483
renewed. He thereby violated Section 8(a)(1) as alleged in
paragraphs 8(b) and (c).
Similarly, in February Rueda is alleged to have threatened
nonrenewal of employment contracts. The substance of this
allegation apparently occurred in January when, according to
the testimony of Manolo Salvador, Rueda told him “don’t join
the Union people because it might affect your renewal.” I
credit Salvador over Rueda and conclude that Rueda made the
statement attributed to him and it was a threat in violation of
Section 8(a)(1).
(7) ROMEO MALABANAN
Paragraph 12 alleged that in late January, assistant chief of
the maintenance department Romeo Malabanan threatened
employees with discharge or nonrenewal should they select the
Union as their bargaining representative. The substance of this
allegation is from the testimony of Aguinaldo Naluis. Accord­
ing to Naluis, Malabanan passed by a group of seven mainte­
nance employees and said that “if the Union won, there’s a lot
of Filipino that’s going to be removed from their job.” Another
of the employees, Norman Gentolia, testified that Malabanan
said, “if the Union won, a lot of you were going to be re-
moved.” Malabanan denied making these statements.
Counsel for the Respondent argues that Malabanan’s denial
ought to be credited because the General Counsel did not call
all the witnesses to Malabanan’s statement, nor ask to whom
she did call about the statement, and that Malabanan had taken
TIPS training. I conclude these are insufficient reasons to dis­
credit Naluis and Gentolia, both of whom I found believable. I
therefore conclude that Malabanan made the statements attrib­
uted to him and he thereby threatened employees in violation of
Section 8(a)(1) as alleged.
(8) MELBA BORLONGAN
On several occasions in January and February Housekeeping
Manager Melba Borlongan is alleged to have unlawfully inter­
rogated employees. Concerning this, Rosanna Cayabyab testi­
fied that one day while cleaning a guest room Borlongan came
in and said, “there’s going to be changes if we have an Union,
and there’s going to be a problem, and they’re going to deduct
our salary. There’s going to be Union rallies, that will affect
your job, our job . . . she asked me what I’m going to vote.”
Similarly, Luisa Adao testified that Borlongan came into a
room she was cleaning and asked, “are we yes or what?” Bor­
longan also asked Adao whether Teodoro Vivero (Adao’s boy-
friend) “is a union organizer.”
The testimony of Cayabyab and Adao is credible, and un­
denied, though counsel for the Respondent represents that Bor­
longan was not renewed and is no longer in Saipan. In any
event, crediting the General Counsel’s witnesses, I conclude
that in fact Borlongan unlawfully interrogated employees as
alleged in paragraphs 13(a) and (b).
(9) MYRNA SANTOS
Housekeeping supervisor Myrna Santos is alleged to have
unlawfully interrogated employees in December 1997, and
January 1998. Cayabyab testified that in December Santos told
her “it’s better if we vote for management so we don’t have a
lot of problem” and asked Cayabyab “what I’m going to vote”
(the later statement being solicited after she had been shown
her affidavit to refresh her recollection). Santos denied asking
Cayabyab how she was going to vote, a denial I tend to credit.
Santos was a generally credible witness. Though Cayabyab
was credible as well, the testimony of unlawful interrogation
was not included in her initial recitation of facts and came out
only after a torturous refreshing of her recollection. On balance
I conclude that Santos did not unlawfully interrogate Cayabyab
and I shall recommend that paragraph 14 be dismissed.
(10) EDUARDO MAGALLANES
Chief Engineer Eduardo Magallanes is alleged to have
unlawfully interrogated employees on February 1. The sub-
stance of this allegation is from the testimony of Rafael Monti­
flor, not as asserted by the Respondent, from Alfonso Matibag.
Montiflor testified that the morning after he had been visiting
friends, Magallanes asked him what had happened to him, that
he had received a call from the General Manager who in turn
had received four calls about Montiflor because he was “the
leader of the Union.” The General Counsel argues that implied
in this was unlawful interrogation of Montiflor about his sup-
port for the Union. I disagree. I conclude that interrogation
must be some kind of a direct question, rather than implied, as
argued by the General Counsel. I therefore conclude that para-
graph 15 should be dismissed.
(11) FRANCISCA CLAMOR
It is alleged that on two unknown dates between September
12, 1997, and February 5, Housekeeping Manager Francisca
Clamor unlawfully interrogated employees. The substance of
this allegation is from the testimony of Cayabyab and Adao.
Cayabyab testified that in January, Clamor asked her “what
am I going to vote for the election.” Adao testified that prior to
the election, Clamor asked her and two other employees “are
you going to vote for the Union.”
Clamor denied asking Adao whether she was going to vote
for the Union. And again, the Respondent argues her denial
must be credited because she attended TIPS meetings. I reject
this argument and I conclude that Adao was more credible. I
conclude that Clamor asked the questions attributed to her and
thereby unlawfully interrogated employees in violation of Sec­
tion 8(a)(1) as alleged in paragraph 16.
(12) MARITA ALARILLA
Marita Alarilla, a supervisor in the housekeeping department,
is alleged to have unlawfully interrogated employees. This is
from the testimony of Adao who recounted that about a week
before the election, Alarilla asked, “Lusisa, are you yes? As
she asked me is Theodoro [sic] going to vote for a yes?” This
testimony is unrefuted, again, according to representations by
counsel for the Respondent, because Alarilla was not renewed
and was not in Saipan. Notwithstanding, I conclude that
Adao’s testimony was credible and that Alarilla engaged in
unlawful interrogation as alleged in paragraph 17.
(13) IZUMI KINOSHITA
Paragraph 18 alleges that General Manager Izumi Kinoshita
unlawfully interrogated employees on February 1. Counsel for
the General Counsel argues this allegation is supported by the
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testimony of Montiflor who, after the discussion with Magal­
lanes [supra (x)] asked to see Kinoshita. According to Monti­
flor, he told Kinoshita that he did not understand how it was
that Kinoshita got reports that he was the leader of the union
movement and he denied to Kinoshita that he was. Kinoshita
testified to this meeting, but stated he did not believe he vio­
lated instructions not to interrogate employees.
Montiflor did not testify to any direct interrogation by Kino­
shita. Nevertheless, the General Counsel argues that Kinoshita
impliedly interrogated and created the impression of surveil-
lance (which was not alleged). I conclude that the substance of
the meeting initiated by Montiflor did not include unlawful
interrogation by Kinoshita and I shall recommend dismissal of
paragraph 18.
(14) DANILO DELA CRUZ
In paragraph 19, Chief Cook Danilo Dela Cruz is alleged to
have interrogated employees before the second election and
threatened them with unspecified reprisals should they choose
the Union and, after the election, threatened them with more
onerous working conditions and discharge because they se­
lected the Union.
The interrogation allegation in paragraph 19(a) was, accord­
ing to counsel for the General Counsel, inadvertently attributed
to Danilo Dela Cruz rather than to another Chief Cook, Jeffery
Cruz. Counsel correctly notes that the Respondent was aware
of this error and in fact called Jeffery Cruz as witness to deny
the substance of Digna Soriano’s testimony that he asked her
“what l’m going to vote.” I agree that the interrogation by
Jeffery Cruz, though not alleged, was fully litigated and that it
occurred in substance as testified to by Soriano.
Counsel for the General Counsel did not brief subparagraphs
(b) (unspecified reprisals on February 3), (c) (imposition of
more onerous working conditions on February 12) or (d) (dis­
charge). I find no evidence to support subparagraphs (c) or (d).
It may be that subparagraph (b) is meant to be supported by
the testimony of Coronejo following an OSHA inspection in
January or February. Coronejo testified that Dela Cruz saw
him talking to the OSHA inspectors and said, “OSHA now,
what next?” This statement does not imply a threat of any kind
of reprisal. I therefore conclude that the allegations that Dela
Cruz violated the Act have not been sustained and I shall rec­
ommend that paragraph 19 be dismissed.
(15) YOSHIHARU H IOKI
Yoshiharu Hioki, the assistant manager of the food and bev­
erage department, is alleged to have unlawfully interrogated
employees on February 5. Minette Floro testified that the day
after the election on February 5, Hioki said to her “Minnie, why
you—why you go there in the counting and who’s with you in
the counting?” This testimony is unrefuted, counsel for the
Respondent representing that Hioki is in Japan and was there-
fore unavailable.
I credit Floro and conclude that Hioki made the statement at­
tributed to him; however, I am not persuaded that such
amounted to unlawful interrogation, particularly when one
considers that, as Floro testified, Hioki is “not really good in
English. His English is crooked.” Thus I conclude that Hioki
did talk to Floro about observing the vote count, but that it did
not rise to unlawful interrogation and I shall recommend that
paragraph 20 be dismissed.
(16) PEDING SANCHEZ
Personnel Manager Peding Sanchez is alleged to have
unlawfully interrogated employees in late February and on May
23, to have conditioned “employees’ job referrals on their aban­
doning their union activities.”
The interrogation allegation is from Yolanda Perez who tes­
tified that shortly after the election when talking to Sanchez in
the personnel office about another matter, Sanchez “asked
me—she was surprised that I was pro Union” and “she said oh,
I didn’t know that you were silent supporter for the union.”
Later Perez testified that Sanchez asked whether she was “into
Union.” Sanchez testified that she in fact talked to Perez in the
elevator, but denied making any of the statements attributed to
her.
I found Sanchez a credible and reliable witness. In addition
to her positive demeanor, she has good command of English
and she gave testimony adverse to the Respondent. The testi­
mony of Perez, on the other hand, was inconsistent, confusing,
and generally not very reliable. On balance I credit Sanchez
and conclude she did not make the statements Perez said she
did and did not unlawfully interrogate Perez as alleged in para-
graph 21(a). I shall recommend that paragraph be dismissed.
It is undisputed that Jesus Gomez was not renewed and that
on his last day of work (May 18) he met with Sanchez who told
him she would help get him a job. She then made a phone call,
asked if Gomez would like to work on the neighboring island of
Tinnian and when he said yes, gave him a complimentary ferry
ticket. Then, according to Gomez, but denied by Sanchez, she
said, “no more union.”
Again, I found Sanchez credible and I am not persuaded by
Gomez. Fundamentally, his story does not make sense. As­
suming that somehow Sanchez was in league with the other
personnel manager to screen out union activists, after obtaining
a job referral for Gomez there would be no purpose to then get
an assurance he would not participate in union activity. And if
she was, the mere statement attributed to her by Gomez would
not have been very effective. There is no basis in this record to
conclude that Sanchez would care whether her former employ­
ees engaged in union activity when working for another com­
pany. I simply do not believe she made the statement Gomez
said she did. I shall recommend that paragraph 21(b) be dis­
missed.
In paragraph 21(c) it is alleged that Sanchez told employees
that selecting the Union would be futile. The only testimony in
support of this allegation is from Figueroa who said that during
company campaign meetings for nonresident contract workers,
Sanchez told employees that the Union “cannot help us in any
way, even if [sic] our renewals. They are not the ones to decide
whether to renew an employee or not.” And, “she said that
Union cannot really help us.”
Figueroa’s memory is generally consistent with the written
speech given by Sanchez, which in relevant part reads: “Union
is not responsible to renew your contract. Nor do they have the
authority to decide whether your contract can be renewed or not
DAI-ICHI HOTEL SAIPAN BEACH 485
. . . . Union cannot protect you if your performance is not good
and the company decides not to renew your contract. Such a
decision is up to the management. Union may negotiate with
the management to try and keep the employee. That is all they
can do.”
I conclude that the statements made by Sanchez to employ­
ees were lawful and that Sanchez did not in fact tell employees
that it would be futile to select the Union as their bargaining
representative. I therefore shall recommend that paragraph
21(c) be dismissed.
(17) HIROSHI KANNO
Hiroshi Kanno was the Executive Chef until October 1997,
and is alleged to have interrogated employees in late September
or early October 1998. Counsel for the General Counsel
amended the complaint at the hearing to delete this paragraph,
and though there was some testimony which might indicate
interrogation by Kanno while still an employee, counsel for the
General Counsel did not pursue this allegation. Paragraph 22
of the complaint will be dismissed.
(18) JEFFREY CRUZ
The allegation in paragraph 23(a) is based on the testimony
of Almariego that sometime after the election Food and Bever­
age Department Supervisor Jeffrey Cruz asked her if it was true
that her picture was in the union magazine.5 And Dina Soriano
testified that she saw Cruz looking at the picture. Cruz testified
that one day he observed employees in the dining area looking
at something, so he approached them to see what it was. He
saw the magazine and said, “Elena (Almariego), you’re in the
picture.”
While this incident is some evidence of Company knowledge
of certain employees’ union activity, I do not believe it amounts
to unlawful interrogation. The employees, after all, brought the
picture to the hotel and were looking at it. The comment by
Cruz, regardless of which precise version is accepted, was cas­
ual and nonthreatening.
Almariego also testified that about 2 weeks before her re­
newal in November, Cruz asked if she had signed the petition
concerning Dela Cruz. And, according to Almariego, Cruz
threatened not to renew her contract because she had signed the
petition. Her testimony in this regard: “He asked me if I sign in
the petition letter for Dani Dela Cruz, and I said yes. And he
told me that I might not renew my paper because the manager
asked him—asked him to ask me if I signed in the petition.”
Cruz admitted having asked Almariego if she signed the peti­
tion, contending that he did so a good supervisor attempting to
find out problems employees had and “address any grievances.”
However, he denied Almariego’s assertion that he was asked to
find out by his supervisor, Makoto Saito. And, he denied mak­
ing any kind of threat.
I agree with the Respondent that the denials by Cruz were
credible. Since management had received the petition, Saito
knew whether or not Almariego was a signatory. Therefore no
purpose would be served for him to have Cruz interrogate her.
5 The March/April issue of the Union’s magazine (Catering Industry
Employee) featured a picture of some of the Respondent’s employees
following the successful second election.
And, according to Almariego, Cruz “told me that not to lose my
hope because he still need me to the Claret because there’s not
enough staff . . . he just told me that my performance at work is
better and it’s good.”
Given these circumstances, I conclude that Cruz in fact
asked Almariego if she had engaged in protected, concerted
activity, but that it was nonthreatening and not violative of
Section 8(a)(1).
Finally, Digna Soriano testified that about 2 weeks before
the election, Cruz “asked me what I’m going to vote,” and she
replied, “I’m in the Union side.” Cruz told her, “it’s up to you,
you have your own mind, it’s up to you for what you want to
vote. And that’s all.” Cruz denied having discussed the Union
or the election with Soriano. On this I tend to credit Soriano
over Cruz, finding that the event as testified to Soriano is con­
sistent with other actions of Cruz in this matter. I further con­
clude that telling Soriano that she could make up her own mind
did not cure the unlawful interrogation in the total circum­
stances of this matter. Cruz therefore violated Section 8(a)(1)
as alleged in paragraph 23(a).
(19) MAFIE TRINIDAD
Mafie Trinidad was a supervisor in the Food and Beverage
Department. She is alleged to have threatened employees that
their annual contracts would not be renewed because the Union
won the election. This allegation is based on the testimony of
Carliza Carlos. According to Carlos, in April Trinidad told her,
“. . . that we came here not to join the Union but to work” And
later, “I’m sure that your contract will not be renewed because
the Union won.” This is undenied.
While the testimony of Floro that Trinidad voted in the elec­
tion tends to prove she was at the time a rank-and-file em­
ployee, the Respondent is not denying the allegation of her
supervisory status. Thus, I conclude that Trinidad made a
threat of reprisal as alleged in paragraph 24.
(20) ARTHUR GUERRERO
At the hearing, the complaint was amended to allege that
Front Desk Supervisor Arthur Guerrero threatened an em­
ployee. The facts of this allegation occurred about 2 weeks
before the election according to Tiquio, who testified that Guer­
rero “told me to be careful when I’m attending the meeting
because the management might find that I’m attending meet­
ings and they might send me back home.” This statement by
Guerrero is undenied; and notwithstanding the friendship be-
tween Guerrero and Tiquio, I conclude that Guerrero made a
direct threat in violation of Section 8(a)(1) of the Act.
b. Employee handbook and rules of conduct
It is alleged that the Respondent violated Section 8(a)(1) by
maintaining the following provisions in its employee handbook:
Confidential Business Information
The protection of confidential business information and trade
secrets is vital to the interests and the success of (the Respon­
dent). Such confidential information includes, but is not lim­
ited to, the following examples:
Compensation data
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Labor relations strategies
Employee Handbook
(e)mployees who improperly use or disclose . . . confidential
business information will be subject to disciplinary action, up
to and including termination of employment and legal action,
even if they do no [sic] actually benefit from the disclosed in-
formation.
And, RULES OF CONDUCT:
Violation of any of the Rules of Conduct may subject the
Employee to disciplinary action, up to and including termina­
tion.
Revealing any information regarding current or past employ­
ees, except with (t)he written permission of the Personnel
M anager.
Badmouthing or disparaging the (Respondent) or its reputa­
tion, its employees, and/or (t)he quality of its service.
No doubt an employer may protect against disclosure of con­
fidential information and no doubt employees have the right to
engage in protected concerted activity, which may include dis­
cussion among themselves and their bargaining representative
about wages and other terms and conditions of employment.
To the extent an employer attempts to prohibit employees from
discussing matters of mutual concern, including wages and
other terms of employment, the employer has interfered with
employees’ Section 7 rights. However, not everything employ­
ees may learn about the employer’s business falls within the
coverage of terms and conditions of employment.
Absent enforcement, it is difficult here to determine the full
reach of the Respondent’s proscriptions against employee activ­
ity. However, it does appear that the items alleged in the com­
plaint relate to wages, hours, and other terms and conditions of
employment and that the Respondent’s attempt to prohibit em­
ployees from disclosing these matters among themselves or to
their bargaining representative is violative of Section 8(a)(1).
E.g., Lafayette Park Hotel, 326 NLRB 824 (1998).
3. Discriminatory terminations
a. Nonrenewals
As noted above, the principal issue in this case is the Re­
spondent’s failure to renew two contracts of 34 nonresident
employees (including Hermie Coronejo whose nonrenewal is
alleged and treated separately, infra) when they came up for
renewal from February 17, to December 31. In addition to the
general allegation that the Respondent’s failure to renew oc­
curred in the context of its refusal to bargain about this subject,
it is also alleged that the Respondent specifically did not renew
the 34 employees named in the complaint because of their un­
ion activity.
Whether the Respondent also violated Section 8(a)(3) in not
renewing these 34 employees is governed by the principles set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. denied on
other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved by the Supreme Court in NLRB
Transportation Management Corp., 462 U.S. 393 (1983).
Under Wright Line it is the General Counsel’s burden to
show that employees’ union activity was the motivating cause
of the decision not to renew the employees in question. Rele­
vant to this are several elements, such as animus, timing,
knowledge, pretext, and, of course, direct evidence that action
was taken to discriminate against employees because of their
protected activity. Where the General Counsel succeeds in
making out a prima facie case of discrimination, then the bur-
den shifts to the Respondent to prove that the same action
would have been undertaken in the absence of any protected
activity.
Here there are factors from which it can be inferred that the
34 nonresident employees were not renewed because of their
union activity. Evidence of animus abounds, notwithstanding
that many of the 8(a)(1) allegations were not found. The Re­
spondent began not renewing the 34 shortly after the Union
won the second election. Certainly the Respondent knew of the
union activity in general, and there is substantial evidence that
the specific union activity of each of the 34 was known at least
to the individual’s direct supervisor (most of whom lived in the
barracks and observed employees meeting for organizational
purposes). The Respondent gave discretion to the first line
supervisors whom not to renew, and allowed these supervisors
until the end of 1998 to effect the planned reduction-in-force.
Even if management did not know precisely who were union
supporters, I infer that in every instance the first line supervi­
sors did. Finally those not renewed were not in all cases the
least productive employee in the department. Indeed, several of
those not renewed had been finalists for or awarded Employee
of the Month.6 Finally, the Respondent hired 17 new employ­
ees after the election (14 locals and 3 from a manpower
agency). In short, it is reasonable to infer that the Respondent’s
failure to renew the 34 employees named in the complaint was
violative of Section 8(a)(3).
However, I conclude that the Respondent met its burden that
these individuals would not have been renewed had there been
no union activity. Indeed, the General Counsel concedes that
the substantial downturn in the Asian economy resulted in a
reduced occupancy rate at the hotel and necessitated reducing
the work force.
First, the Respondent cutback the number of employees from
359 to 290, including supervisors and managers. It is clear that
almost as many employees not alleged to have been discrimi­
nated against were not renewed as were listed in the complaint.
From this it is difficult to conclude that somehow union sup-
porters were treated disparately. The General Counsel seems to
argue that the 35 employees not renewed (including Hermie
Coronejo) were all engaged in union activity whereas employ­
ees who were renewed did not. There is no proof of this. To
the contrary, all nonresidents were renewed, or not, during
calendar year 1998. Since the Union received 131 votes, and
about 80 percent of the employees are nonresidents, it is fair to
infer that nearly 75 or so union supporters were renewed. Pre-
6 Counsel for the General Counsel argues that the employee of the
month award was discontinued in January in order to discourage union
activity. There is no allegation in the complaint to this effect and I will
not make findings concerning this assertion.
DAI-ICHI HOTEL SAIPAN BEACH 487
sumably, of those not renewed the complaint names all who
were union supporters, which means that about the same num­
ber of those not renewed were not union supporters.
Second, of the 34, the Respondent actually attempted to re-
new seven but was unable to do so because there was a quali­
fied replacement available for the job which the Respondent
was required, by CNMI law, to hire.
On balance I conclude that the 34 nonresident workers were
not renewed either because of the reduction-in-force caused by
Asian economic situation, or because there was a qualified
local seeking the job. In either case, the nonrenewals would
have occurred in absence of any union activity. The Respon­
dent did not violate Section 8(a)(3) with regard to renewals,
but, as found above, it did violate Section 8(a)(5) in refusing to
bargain about this matter.
b. Hermie Coronejo
Hermie Coronejo is a cook who began his employment in
December 1993. His renewal date was to be November 28,
1998, however he was selected for nonrenewal. Then, having
filed a charge with the U.S. Equal Employment Opportunity
Commission, he was given a renewal for 6 months and at the
time of the hearing continued to be employed, notwithstanding
that he had not been renewed for 1 year in the usual fashion.
Counsel for the General Counsel represented that she was in-
formed at the hearing that Coronejo had been given another 6-
month contract.
Coronejo was well-known as being the employees’ leader in
the organizational effort. He was the Union’s observer at the
first election. He was the only employee to attend the hearing
on objections. He held meetings in his room at the barracks,
passed out flyers, wore union T-shirts and buttons at the hotel
when not on duty, and he initiated several petitions relating to
working conditions. He filed charges with OSHA. From the
period before the first election in 1996 until after the second,
Coronejo engaged in a great deal of union and other protected
activity.
It is apparently for this reason that Coronejo’s nonrenewal
(under normal terms) was alleged as a separate violation of
Section 8(a)(3) and (4), rather than putting him with the 34
other union supporters who were not renewed. Coronejo en-
gaged in more protected activity more notoriously than any of
the others and he was known to be instrumental in pursuing
charges with the Board. Thus, there is a strong prima facie case
that he was not renewed in violation of Section 8(a)(3) and (4);
however, his situation is not really different from the others,
and as with the others, I conclude that he would not have been
renewed had there been no union or other protected activity.
Notwithstanding Coronejo’s union leadership and substantial
protected activity, there is no basis to conclude that as to him
the Respondent did not sustain its burden where it did sustain
its burden as to the others.
It is also alleged that he was issued an employee misconduct
notice on June 2, in violation of Section 8(a)(3). The miscon­
duct was Coronejo having punched in another employee’s
timecard, a fact Coronejo admitted.
Counsel for the General Counsel argues that the “warning is
obviously baseless and discriminatory,” but did not offer rea­
sons for which such a finding should be made. It is clear, in-
deed admitted, that Coronejo punched another employee’s
timecard and that this is a violation of company rules. There is
no evidence that punching another employee’s timecard is an
accepted practice, nor evidence that by being given a warning
for having done so Coronejo was treated disparately.
Coronejo’s purported reason for punching the other em­
ployee’s timecard simply does not make sense. He said it was
because he was afraid of “the local employee. . . . Because he
has a case of illegal possession of firearms.” It is unclear
whether it was this “local” employee’s timecard which he
punched, nor is it clear whether he punched the card in when in
fact the other employee was not at work. Coronejo testified,
“Yes, I punch [sic] him out.”
Though the violation of company rules was relatively minor,
so was the discipline. In short, the only real basis for conclud­
ing that Coronejo was given a warning in violation of Section
8(a)(3) was the fact of his union leadership. Such is insuffi­
cient. Engaging in union or protected activity does immunize
one from complying with reasonable company rules; and does
not prohibit a company from disciplining one for violating
those rules. I therefore conclude that Coronejo was not given
the written warning in violation of Section 8(a)(3).
c. Loreta Rangamar
Loreta Rangamar is a CNMI local member, who was em­
ployed by the Respondent as a cashier from December 1994
until her discharge on December 5, 1998. She was active in the
organizational campaign, passing out flyers to employees in the
cafeteria, barracks, and hotel parking lot and she attended union
meetings at the men’s barracks where she was seen by supervi­
sors. Along with Coronejo, with whom she spoke frequently,
she initiated the Dela Cruz petition and solicited employees to
sign it; and on the night of the second election, Kawasaki said
to her, “happy now, you win?”
As noted above, Kawasaki observed Rangamar at the
Horiguchi Building, interrogated her about protected concerted
activity she was engaged in and gave the impression such was
under surveillance. Two weeks later she was discharged by
Kawasaki.
The Respondent argues that Rangamar was discharged for
cause, “based on absolutely woeful performance and repeated
insubordination” (R. Br. at 62). The principal act of miscon­
duct cited by the Respondent was her leaving the cash register
unattended and when warned about this by Kawasaki, she
shouted at and cursed him. Rangamar admitted this incident
except the cursing. However, this event occurred in April
1996—more than 2-1/2 years before her discharge.
In September she asked another employee to punch her in,
which he did at 11:01. She arrived at 11:03 and was not paid
until her shift began at 11:30 (consistent with the Respondent’s
policy). This infraction was raised as a reason for terminating
her.
In general, the Respondent said she had problems with ab­
sences and tardiness, in addition to the 1996 discipline and the
timecard incident. A comparison of Rangamar’s attendance
record with that of two other local employees in her classifica-
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion who were not discharged shows that Rangamar was absent
and tardy less often.
Given the staleness of the 1996 discipline, the trivial (and
possibly unlawful under the Fair Labor Standards Act) nature
of the timecard incident in September, the general and unsup­
ported assertion of her continued poor performance, and the
fact that two retained employees in similar circumstances had
worse attendance and tardiness records, lead me to conclude
that the asserted reasons for discharging Rangamar were bogus.
Where the reasons given for discharging an employee are un­
tenable, it can be inferred those reasons are advanced in order
to disguise the true motive. And, it can be inferred that the true
motive was that which was sought to be hidden—namely the
employee’s union or protected activity. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
I infer that the Respondent’s true motive in discharging Ran­
gamar was her activity on behalf of the Union and her other
protected activity, including participating in the Board’s proc­
esses. The Respondent thereby violated Section 8(a)(3) and (4)
of the Act.
d. Ronald Del Rosario
Ronald Del Rosario was a bartender who was active on be-
half of the Union, attending meetings, passing out flyers, and
wearing a union hat. He protested the bartenders not receiving
appropriate pay for a function and he helped circulate the Dela
Cruz petition. His contract date was September 10, 1997, so
presumably he was renewed on September 10, 1998, notwith­
standing the complaint allegations that union supporters were
not renewed. He was a strong union supporter who was re­
newed.
In late October, or early November, he was accused of being
involved in an incident the exact nature of which is not clear. It
appears the bill given to a customer and the one they paid was
different from the order they received, the effect of which was
the Respondent netted $16 instead of $57. He was called to a
meeting with Sanchez and his supervisors. He was shown a
receipt, which he acknowledged was in his handwriting, show­
ing “1 O.J.,” “2 P.J.,” and “1 Coke” whereas the real order was
for one bottle of Paul Mason wine, one assorted fruits, and
three glasses of port wine. Del Rosario was seen on the secu­
rity videotape pouring the wine. The essence of the investiga­
tion was to determine whether the customers had paid for the
wine with Del Rosario ringing up the juice order and pocketing
the difference.
Although the Respondent had not firmly determined Del
Rosario’s guilt in this matter, he was under suspicion and it was
this, and the attendant scrutiny, which he claims caused him to
quit on January 22, 1999.
The critical event, of course, is the matter of Del Rosario
writing a false receipt (docket in the Respondent’s terminol­
ogy). On this Del Rosario testified that he admitted to making
a mistake which was caused by the fact that the customers were
in a hurry to leave and he was “nervous” and wrote juice in-
stead of wine. I totally discredit Del Rosario’s testimony. I do
not for a moment believe that he, an experienced bartender,
would be nervous because a customer said he was in a hurry.
Such is also inconsistent with his demeanor and his reputation
as a “tough guy.”
I believe that the Respondent had every reason to scrutinize
Del Rosario, and even for managers to suggest he ought to
resign. I conclude the events leading to his eventual resignation
had nothing to do with the Union, protected activity, or the fact
that he may have sought protection from the Board. I conclude
that the Respondent did not constructively discharge Del
Rosario in violation of the Act. To the contrary, if in fact the
Respondent was determined to terminate him for his union
activity, his contract would not have been renewed.
THE REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act, including offering reinstatement (consis­
tent with CNMI law) to all contract employees whose contracts
were not renewed between February 17 and December 31,
1998, and Loreta Rangamar, and make them whole for any lost
wages or other benefits they may have suffered in accordance
with the formula set forth in F. W. Woolworth, Co., 90 NLRB
289 (1950); and New Horizons for the Retarded, 283 NLRB
1173 (1987).
I shall also recommend that the Respondent rescind its uni­
lateral changes in working conditions and to bargain with the
Union, the certification year to start when the Respondent
commences good-faith bargaining.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Pacific Micronesia Corporation d/b/a Dai-
Ichi Hotel Saipan Beach, its officers, agents, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their interest or ac­
tivity on behalf of the Union or any other labor organization.
(b) Threatening employees with termination or other repri­
sals because of their interest in or activity on behalf of the Un­
ion or any other labor organization.
(c) Creating the impression that employees’ activity on be-
half of the Union, or before the Board, is under surveillance.
(d) Directing employees not to associate with employees
who are engaged in activity on behalf of the Union.
(e) Informing employees that selecting the Union as their
bargaining representative would be futile.
(f) Promulgating rules which prohibit employees from dis­
cussing among themselves or with their bargaining representa­
tive matters relating to wages, hours, and other terms and con­
ditions of employment.
7 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 pur­
poses.
DAI-ICHI HOTEL SAIPAN BEACH 489
(g) Refusing to bargain with the Union as the duly certified
representative of its employees by making unilateral changes in
working conditions and by unilaterally engaging in a reduction-
in-force.
(h) Retaliating against employees for their union activity by
curtailing benefits.
(i) Discharging employees because of their interest in or ac­
tivity on behalf of the Union or because they engage in the
Board’s processes.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec­
tuate the policies of the Act.
(a) Recognize and bargain with Hotel Employees & Restau­
rant Employees, Local 5, AFL–CIO and Commonwealth Labor
Federation, as the duly certified representative of its employees
in the following appropriate unit and if agreement is reached,
execute a collective-bargaining agreement:
All full-time and regular part-time employees employed
by the (Respondent) in the Commonwealth of the North-
ern Mariana Islands; excluding all managerial employees,
professional employees, confidential employees, guards,
and supervisors as defined in the Act.
(b) Offer employment contracts to all employees whose con-
tracts were not renewed between February 17 and December
31, 1998, and make them whole for any loss of wages or other
benefits, with interest as provided in the remedy section above,
they may have suffered as a result of the Respondent having
unilaterally failed to renew their contracts without notice to or
bargaining with the Union.
(c) Offer reinstatement to Loreta Rangamar to her former
job, or if that job no longer exists, to an equivalent position and
make her whole for any loss of wages or other benefits she may
have suffered as a result of the discrimination against her, with
interest as provided in the remedy section, above.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and within 3
days thereafter notify the employee in writing that this has been
done and that the discharge will not be used against her in any
way.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or­
der.
(f) Within 14 days after service by the Region, post at its fa­
cility copies of the attached notice marked “Appendix.”8 Cop­
ies of the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent's authorized
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relat ions Board.”
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con­
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed its facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at any time since the date of this
Order.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(h) The allegations in the consolidated complaint not found
to be violations are dismissed.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con­
certed activities.
WE WILL NOT interrogate our employees concerning their in­
terest or activity on behalf of the Union or any other labor or­
ganization.
WE WILL NOT threaten our employees with termination or
other reprisals because of their interest in or activity on behalf
of the Union or any other labor organization.
WE WILL NOT create the impression that employee’s activity
on behalf of the Union, or before the Board is under surveil-
lance.
WE WILL NOT direct our employees not to associate with em­
ployees who are engaged in activity on behalf of the Union.
WE WILL NOT inform our employees that selecting the Union
as their bargaining representative would be futile.
WE WILL NOT promulgate rules which prohibit employees
from discussing among themselves or with their bargaining
representative matters relating to wages, hours, and other terms
and conditions of employment.
WE WILL NOT refuse to bargain with the Union as the duly
certified representative of our employees by making unilateral
changes in working conditions and by unilaterally engaging in a
reduction-in-force.
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT retaliate against our employees for their union
activity by curtailing benefits.
WE WILL NOT discharge our employees because of their inter­
est in or activity on behalf of the Union or because they engage
in the Board’s processes.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer employment contracts to all employees whose
contracts were not renewed between February 17, and Decem­
ber 31, 1998, and WE WILL make them whole for any wages and
other benefits they may have lost as a result of our unilaterally
having failed to renew their contracts without notice to or bar-
gaining with the Union.
WE WILL offer Loreta Rangamar immediate and full rein-
statement to her former job, or if that job no longer exists, to a
substantially equivalent position of employment and we will
make her whole for any loss of wages or other benefits he may
have suffered as a result of our discrimination against her, with
interest.
WE WILL recognize and bargain with Hotel Employees &
Restaurant Employees, Local 5, AFL–CIO and Commonwealth
Labor Federation, as the duly certified representative of its
employees in the following appropriate unit and, if agreement
is reached, execute a collective-bargaining agreement:
All full-time and regular part-time employees employed by
the (Respondent) in the Commonwealth of the Northern
Mariana Islands; excluding all managerial employees, profes­
sional employees, confidential employees, guards and super-
visors as defined in the Act.
PACIFIC M ICRONESIA CORPORATION D/B/A DAIICHI
HOTEL SAIPAN BEACH
Marilyn O’Rourke and David M. Biggar, Esqs., for the General
Counsel.
Ronald B. Natalie and Gregg S. Avitabile, Esqs., of Washing-
ton, D.C., for the Respondent.
SUPPLEMENTAL DECISION
I. STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This reopened
hearing was tried before me at Saipan, Commonwealth of the
Northern Mariana Islands (CNMI), between March 12 and 23,
2001, pursuant to the Board’s remand decision of November
15, 2000, and my order reopening the record dated December
12, 2000. Counsel for the General Counsel moved to reopen
the record to take the testimony of Hideo Fujii who had submit­
ted an affidavit to the effect that he had committed perjury at
the first hearing and had hidden material evidence from the
General Counsel. Reviewing Fujii’s 70-page affidavit, I con­
cluded that if believed, Fujii’s testimony might call into ques­
tion the Respondent’s economic defense to its decision not to
renew the employment contracts of the alleged discriminatees
and might require a different result than I reached initially.
The Respondent operates one of several large resort hotels
on the Island of Saipan, which cater primarily to Japanese and
Korean tourists. It is one of a chain owned by Japanese inter­
ests and most of its managers are Japanese. Most of the low-
level supervisors and rank-and-file employees are Filipinos.
CNMI law requires that 20 percent of the employees be local
residents. All nonresident employees, whether management,
supervisors, or rank and file, work on 1-year contracts approved
by an agency of the CNMI. Under a set of complex regula­
tions, employee contracts can be renewed for successive 1-year
periods and typically are. In addition to resident and nonresi­
dent employees, the Respondent uses employees from one of
several manpower agencies on Saipan. In early 1998 the Re­
spondent had a total complement of 359 employees. Pursuant
to a reduction-in-force resulting from a downturn in the Asian
economy, by the end of 1998 the Respondent had 290 employ­
ees.
In 1994, the Union began an organizing campaign among the
Respondent’s employees, resulting in an election on March 21,
1996, which the Union lost by a vote of 151 to 91. Objections
were filed and the election set aside on grounds of third party
interference—principally newspaper and TV reports concerning
proposed changes in the nonresident employment law. The
Board concluded that these reports made holding of a free and
fair election impossible. Pursuant to the Board’s Decision and
Direction of Election of September 24, 1997, a second election
was held on February 5, 1998. The Union won this election by
a vote of 131 to 121 with 9 challenges. The Respondent’s ob­
jections were overruled by the Regional Director and the Board
declined review. Dai-Ichi Hotel Saipan Beach, 326 NLRB 458
(1998). Thus, the Union was certified as the employees bar-
gaining representative on March 30, 1998.
To test this certification, the Respondent refused to bargain
with the Union. The Board granted summary judgment against
the Respondent. Dai-Ichi Hotel Saipan Beach, 327 NLRB No.
131 (1999) (not included in bound volumes). The Respondent
appealed this decision to the D.C. Circuit of the United States
Court of Appeals which, subsequent to my initial decision in
this matter, denied enforcement holding that the first election
should not have been set aside. Dai-Ichi Hotel Saipan Beach v.
NLRB, 219 F.3d 661 (D.C. Cir. 2000).
At issue here is the Respondent’s decision throughout 1998
not to renew the contracts of 35 nonresident employees (now
39 with an amendment to the consolidated complaint) on their
on their anniversary dates.1 Though the process is complex, in
general, when an employee is up for renewal, the company
must contact CNMI authorities and a job vacancy announce­
ment is published. If a qualified local resident applies for the
job, it must be awarded to the local and the nonresident must be
repatriated. In brief, I concluded that the General Counsel
made out a prima facie case that the nonrenewal of these em­
ployees was based on their union activity and therefore viola­
tive of Section 8(a)(3) of the Act; however, I also concluded
that the Respondent met its burden under Wright Line, 251
1 The amended complaint also alleged the unlawful discharge of Lo­
reta Rangamar, and at the hearing, the complaint was amended to allege
the unlawful constructive discharge of Ronaldo Del Rosario. I con­
cluded that the discharge of Rangamar was unlawful but the events
leading to Del Rosario’s resignation were not.
DAI-ICHI HOTEL SAIPAN BEACH 491
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), by demonstrating that the down-
turn in the Asian economy resulting in substantially reduced
occupancy necessitated a reduction-in-force. I concluded that
the Respondent attempted but could not renew seven employ­
ees because a qualified local had applied for the job. As to the
others, they were not renewed due to the reduction-in-force.
However, I further concluded that by refusing to bargain with
the Union concerning the proposed reduction-in-force the Re­
spondent violated Section 8(a)(5). As a result of the circuit
court’s decision, the refusal to bargain issues are no longer a
part of this case.
The General Counsel concedes there was a severe downturn
in the Asian economy and initially agreed that some reduction-
in-force was necessary, though arguing the particular individu­
als named in the complaint were chosen because of their union
activity and to retaliate against them. Therefore they were not
renewed in violation of the Act. In addition, based on the tes­
timony of Fujii, the General Counsel now contends that the
Respondent engaged in a conspiracy to hire employees from
Nepal, who were thought to be opposed to unions, to replace
Filipino employees prior to, and in order to win, the second
election. Counsel for the General Counsel no longer agrees that
any reduction-in-force was required by the economic conditions
of 1998.
Over the course of the 10-day hearing the parties generated a
great deal of detail concerning events before the second elec­
tion relating to these issues, the credibility of Fujii, as well as
some matter not particularly relevant.
The General Counsel argues that a conspiracy was hatched in
the summer of 1997 between Fujii and the Respondent’s then
assistant general manager, Yasuhisa Iwabuchi, to replace
known union activists (Filipinos) with Nepalese in order to win
the second election. The General Counsel’s case is based on
two factors: the testimony of Fujii and the fact that the Respon­
dent hired 16 Nepalese as manpower employees in December
1997 and January 1998. The General Counsel does not address
the fact the Nepalese were employees of a manpower agency
and thus ineligible to vote and within 6 months prior to the
election only 6 nonresident employees were not renewed,
whereas during the same period 50 Filipinos were hired (48
direct and 2 locals).
Further, the Respondent had won the first election handily
(151 to 91). While the Respondent actively campaigned prior
to the second election, it is difficult to believe that the Respon­
dent would have felt such jeopardy as to engage in the compli­
cated conspiracy argued for by the General Counsel and merely
reduce the eligible voters by 16. No doubt a course of action
does not have to make sense to be unlawful, however, having
some measure of rationality is certainly a factor to be consid­
ered in evaluating whether in fact there was an unlawful plan.
II. ANALYSIS AND CONCLUDING FINDINGS
A. The Undisputed Facts
Many of the facts in this matter are undisputed, at least in
any substantial or material respect. Fujii and Iwabuchi were
personal and professional friends. They met frequently at the
hotel and engaged in social activities together—probably less
frequently than Fujii contends but more than Iwabuchi does.
At the times material here, Fujii was general manager of
Niizeki International of Saipan Company Limited (NIS) which
was engaged in construction, real estate development, and
management and so forth. He was terminated from this posi­
tion under very acrimonious circumstances on April 14, 2000.
He was also the authorized representative and apparently gen­
eral manager of Micronesia Manpower Agency (MMA), a sub­
sidiary NIS created in late 1997 primarily to furnish manpower
employees to the Respondent. Because of some difficulty with
the CNMI government concerning manpower agencies, during
the course of the events here, MMA changed its name to
Marianas Hotel Service (MHS).
Beginning in about June 19972 Iwabuchi and Fujii discussed
the possibility of NIS getting into the manpower business and
specifically recruiting employees from Nepal to be used by the
Respondent as manpower employees. Iwabuchi testified that
he was approached by Fujii about furnishing manpower em­
ployees to the Respondent and Iwabuchi was agreeable. The
Respondent had been using several locally owned manpower
agencies, but Iwabuchi testified that he did not trust them and
was interested in using a Japanese-owned firm. Iwabuchi testi­
fied that “one of the biggest reasons for using the manpower
employees is because of the flexibility.”
It apparently took until early October for MMA to become
incorporated. In September, the Respondent and MMA entered
into a contract, written in Japanese, which was subsequently
dated October 17. Fujii testified that the contract was written in
Japanese so that local officials would not understand it. Iwabu­
chi testified that it was in Japanese because the parties were
Japanese. Both testified that it was undated because MMA had
not yet been chartered.
In any event, the Respondent and MMA reached an agree­
ment whereby MMA would furnish employees to the Respon­
dent. Subsequently, Iwabuchi and Fujii signed a restaurant
concession agreement, the purpose of which was to hide the
fact that MMA (now MHS) was really a manpower agency.
Iwabuchi testified that neither party intended to honor the
agreement. During this period, from mid-1997 through 1998,
CNMI officials had placed restrictions on manpower agencies
as well as requiring them to post some kind of a $5000 per
employee bond.
On October 10, Thomas Sablan, Secretary, Department of
Labor and Immigration, issued a public notice to the effect that
“the CNMI Division of Labor will no longer accept either new
or renewal nonresident worker applications for manpower
companies.” After some meetings with CNMI officials, and the
agreement of NIS to guarantee financial support for MMA, the
ban was lifted and as to MMA and entry permits were approved
for the Nepalese. Apparently, however, the ban on manpower
agencies continued and in February 1998 MMA changed its
name to MHS. The restaurant concession agreement, as well as
Fujii’s several visits to CNMI officials, including the governor,
were to protect MHS and keep it in business.
2 Hereafter all dates are in 1997 unless otherwise indicated.
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In early 1997 (and apparently before creating the manpower
agency), Fujii had furnished the Respondent either two or four
employees from Nepal and two employees from Nepal worked
for Fujii’s company. Both Fujii and Iwabuchi thought well of
the Nepalese employees. In June Iwabuchi and Fujii met with
the general manager of the Hyatt hotel in June and he con-
firmed that Nepalese were good employees. Further, the Nep­
alese had a reputation of not being union inclined for a variety
of reasons.
Thus, Fujii contacted a recruitment agency in Nepal and in
late October he, Iwabuchi, along with two other of the Respon­
dent’s managers and Iwabuchi’s wife, went to Nepal to inter-
view prospective employees. They had numerous interviews
over a 5-day period and finally selected 23 or 24 employees
whom they offered jobs. Of those who accepted, 15 arrived in
Saipan on December 31 and another on January 16, 1998. In
addition, three more came on March 10, 1998. They were em­
ployees of MMA, hired to work at the Respondent’s hotel.
As a condition for employment, each of the Nepalese was
required to sign a contract which contains the following lan­
guage: “Also, during my stay in Saipan, I will not get involved
any political parties & will not get involved directly or indi­
rectly in any activities at the place of work against the man­
agement.”3
In the 6-month period preceding the second election, the Re­
spondent directly hired 50 Filipinos (48 nonresidents and 2
locals).4 Also during that period, the Respondent did not renew
the contracts of six nonresident employees, apparently all of
whom were Filipinos.
Each employee named in the complaint as a discriminatee
was a nonresident Filipino. As such, each had a 1-year em­
ployment contract which was renewed by the Respondent
sometime in 1997—many in November and December, includ­
ing Hermie Coronejo, the Union’s principal inplant organizer.
Coronejo was renewed on November 28. That he was not re­
newed on November 28, 1998, is alleged to be violative of
Section 8(a)(3) and (4) of the Act.
B. Disputed Fact Assertions
According to Fujii, in the spring and summer of 1997,
Iwabuchi told him that the Respondent intended to win the
rerun election by getting rid of Filipino union activists as their
contracts expired and replacing them with locals. Then in May
or June, again according to Fujii, Iwabuchi began talking about
replacing the Filipinos with Nepalese and he asked if Fujii
could create a manpower agency to recruit Nepalese for the
Respondent. Iwabuchi agreed that he and Fujii discussed NIS
creating a manpower agency. However, he denied that he sug­
gested having a manpower agency hire Nepalese employees to
3 This is alleged to be a “yellow dog” contract and violative of Sec.
8(a)(1); however, the Nepalese were employees of MMA/MHS and
there is no allegation that MMA/MHS was the alter ego of the Respon­
dent, though Fujii is alleged to have been an agent of the Respondent.
4 This is from R. Exh. 40. As part of a posthearing stipulation, the
Respondent withdrew R. Exh. 40; however, the facts contained therein
are relevant and I believe authentic. Therefore, I will consider this
document notwithstanding counsel’s stipulation.
replace Filipino union activists in order to win the rerun elec­
tion.
Fujii testified that in about May, and periodically thereafter,
Iwabuchi stated that he intended to get rid of the union activists
when their contracts were up for renewal. Specifically, accord­
ing to Fujii, Iwabuchi stated that he would get rid of Hermie
Coronejo, the man leading the union activity. Iwabuchi denied
making these and similar statements about not renewing the
contracts of union activists or identifying the Fujii employees
he thought were active on behalf of the Union.5
Fujii testified that in June he received a newspaper article
from Iwabuchi about the Hyatt Hotel winning its union election
(notwithstanding that said election was in 1995 or 1996)
whereupon he called the Hyatt general manager to offer con-
gratulations and to schedule a meeting with him about how this
was done. Fujii and his superior, NIS President Seiji Naka­
mura, met with Mustafa Issa who told them that his predecessor
had hired as many locals as possible and had repatriated many
Filipinos.
Issa testified that he knew Nakamura socially and he did
meet with Nakamura and Fujii to discuss the possibility of NIS
forming a cleaning service to be used by the Hyatt. Issa said he
would consider it. They also discussed Nepalese employees,
with whom Issa was satisfied. He also testified that the first
election at the Hyatt was in 1995, before he arrived, and the
rerun election in January 1998. His meeting with Nakamura
and Fujii took place months before the second election.
Fujii testified that during the Nepal interviews, Iwabuchi told
him that he wanted the 23 selected individuals to arrive in Sai­
pan before the second election which he expected to be held in
December. And Iwabuchi then wanted a second batch of Nep­
alese to arrive in February or March 1998. Iwabuchi denied
making such statements to Fujii.
C. Fujii’s Testimony and Credulity
Based on Fujii’s testimony, the General Counsel argues that
there was a conspiracy between the Respondent and NIS,
through Fujii, whereby Filipino employees, who were known to
be the source and strength of the union campaign, would be
replaced by Nepalese prior to the second election.
It is undisputed that the Respondent agreed to use Fujii’s
company as a manpower supplier of Nepalese employees in late
1997 and to that end, Iwabuchi and other managers accompa­
nied Fujii to Nepal in October. And it is undisputed that as a
condition of employment, the Nepalese had to sign a contract,
which is probably illegal under the Act.
However, I do not credit Fujii’s testimony on the substance
of what he says Iwabuchi told him about replacing Filipinos
with Nepalese so that the Respondent could win the second
election. Nor do I credit Fujii’s implicit assertion that creating
the manpower agency was Iwabuchi’s idea. First, Fujii is an
admitted perjurer, though how he committed perjury and with-
held facts from the General Counsel prior to and at the first
hearing is less than clear. He testified that he did so in order to
5 I sustained the Respondent’s objection to this line of testimony
since it was well beyond the scope of the reopened hearing. On special
appeal, the Board ordered that I take this testimony by question and
answer offer of proof.
DAI-ICHI HOTEL SAIPAN BEACH 493
protect both his employer and the Respondent. Nevertheless,
he admitted that he is willing to lie under oath when he per­
ceives it to his advantage to do so.
Fujii seems to have an agenda which has little to do with de­
veloping true facts in this matter and more to do with
undermining his former employer, from which he was
dismissed following the first hearing under very acrimonious
circumstances, including a physical altercation. This has
resulted in civil actions by Fujii against NIS. Counsel for the
Respondent offered into evidence several unsigned letters
written to and received by the Respondent denigrating Fujii’s
former employer. Fujii denied writing these letters and the
General Counsel’s objection to their introduction was
sustained. I have reconsidered this ruling and now receive
them into evidence, not for the substance of the facts asserted in
them, but as evidence of Fujii’s incredulity. Statements are
made in the letters concerning Fujii’s alleged perjury and his
reporting this to a Board agent which only he (and the Board
agent) could have known at the time. For instance, a letter
dated and postmarked May 8, 2000, refers to “(p)erjury under
oath by NIS General Manager (Fujii) in an N.L.R.B. trial.
(N.L.R.B. vs Daiichi.)” I believe he wrote these letters and that
his denying having done so was an attempt to mislead me on
what he perceived to be a material issue.
Counsel for the General Counsel recognizes that Fujii has se­
rious credibility problems, but suggests that Iwabuchi does as
well and that on balance, Fujii is more believable. I reject this
argument. First, irrespective of Iwabuchi’s credibility, the Gen­
eral Counsel has the burden of proving the allegations by com­
petent, credible evidence. Relying on Fujii does not meet this
test. Further, on material issues, I believe Iwabuchi’s denials
were more plausible than Fujii’s assertions.
The thrust of Fujii’s testimony, denied by Iwabuchi, was the
plan they hatched beginning in the summer of 1997 to replace
Filipinos with Nepalese in order for the Respondent to win the
second election. I do not believe this occurred. At the time the
Board had not yet decided there should be a second election,
though a hearing officer had recommended setting aside the
first one based on statements made by third parties. The Re­
spondent had won the first election by a substantial margin.
Only three nonresident employees were not renewed between
October 1997 and the second election. Iwabuchi knew that the
16 Nepalese hired as manpower employees in December and
January would not be allowed to vote. Their presence could
not reasonably have affected the results of the second election.
Even if, as asserted by the General Counsel, Nepalese had re-
placed Filipinos before the election, such would have had little
effect where the number of eligible votes was in the range of
270. If there had been such a scheme as testified to by Fujii
and asserted by the General Counsel, it would follow that the
Nepalese would have been direct hires and in much greater
numbers and in fact Filipinos would have been replaced.
A large number of Filipinos were actually renewed in No­
vember and December (including several of the alleged dis­
criminatees) and, as noted above, in the 6 months prior to the
second election, 50 Filipinos were hired.
To like effect, I discredit Fujii’s testimony that beginning on
July 10, 1997, if not before, Iwabuchi identified to him certain
employees who would not be renewed because of their union
activity. Fujii testified that Iwabuchi told him “one of the
cooks, a lady cook, who was close to Hermie (Coronejo) was to
go upon the expiration of her employment contract. Now I
remember, I think her name was Yolanda.” The only nonresi­
dent employee named Yolanda was cook’s helper Yolanda
Perez, an alleged discriminatee and identified as a strong union
supporter. Her renewal date was November 1 and she was
renewed in 1997. Similarly, Fujii testified that Iwabuchi said
he would not renew the contracts of Hermie Coronejo (Novem­
ber 28); Elena (Almariego) (November 20); Manuel Manalang
(November 9); and Gino (Uson) (December 31). Had Iwabuchi
really made the statements about not renewing these employ­
ees, given the scheme alleged by the General Counsel, it fol­
lows they would not have been renewed in 1997. In fact they
were.
D. Concluding Findings
The hearing was reopened to take the testimony of Fujii and
to determine whether the credited evidence would undermine
the Respondent’s economic defense. In brief, the Respondent
contends that it did not renew the contracts of the discrimina­
teees because of its decision in March 1998 to downsize its
staff due to substantially reduced occupancy resulting from a
severe downturn in the Asian economy beginning in late 1997.
Initially, counsel for the General Counsel agreed that as a result
of the economy some reductions-in-force were necessary, how-
ever, they now withdraw that concession arguing that at all
material times the Respondent had a plan to replace nonresident
Filipinos with Nepalese and the economic defense is invalid as
to any discriminatee.
While I disagree with the General Counsel’s now theory of
the case, and I discredit Fujii on the material substance of his
testimony, given the posture of this matter, I deem it permissi­
ble and appropriate to reconsider the alleged discrimination of
the nonresident contract employees, including the Respondent’s
economic defense. For the reasons given in my first decision, I
conclude that the General Counsel made out a strong prima
facie case that the alleged discriminatees were not renewed
because of their known union activity. And, as before, I con­
clude that the Respondent demonstrated that a reduction-in-
force was necessary due to the economy. However, on recon­
sideration, I conclude that the Respondent did not offer persua­
sive reasons why known union activists were selected for non-
renewal instead of less senior employees who were not identi­
fied as having participated in union activity. Though econom­
ics was the basis for reducing the work force, I conclude that
selecting the particular individuals was discriminatory and
unlawful. Therefore, as to the discriminatees named below, I
conclude that the Respondent did not sustain its burden under
Wright Line, and that it failed to renew these individuals in
violation of Section 8(a)(3) of the Act.
As noted in my initial decision, Iwabuchi devised the plan to
reduce the total number of employees to be accomplished by
the end of 1998. He left to the department managers whom
they would select for nonrenewal. Each of the discriminatees
was among the most active on behalf of the Union, not only
attending meetings, but passing out flyers, circulating petitions,
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and the like. While their specific activism might not have been
known to Iwabuchi, I conclude such must have been known to
their supervisors, most of whom lived in the employee bar-
racks, and department managers. Although this matter was
tried as a kind of class action, and there are similarities, it ap­
pears that really each case of nonrenewal is unique principally
because of the anniversary date of the employee in question.
The practice of using manpower employees apparently pre-
dates the Union’s appearance on the scene. Iwabuchi testified
that this practice gives flexibility. I further credit Iwabuchi that
he was interested in contracting with a Japanese-owned man-
power company. Therefore the fact that Iwabuchi agreed to use
Fujii’s company as a supplier of employees does not imply an
unlawful motive.
Further, Fujii’s efforts to circumvent CNMI law as to man-
power agencies and employees is not attributable to the Re­
spondent. I conclude that at all times, Iwabuchi and Fujii had
an arms length business relationship with regard to furnishing
employees.
In concluding that the Respondent generally did not sustain
its burden under Wright Line, that it would not have renewed
these individuals even in the absence of their union activity, I
rely on the fact that the Respondent kept less senior employees
who were not identified as union activists. Seniority, of course,
is not dispositive, but all things being equal, as a general prac­
tice employers keep the more senior and experienced employee
where a reduction-in-force is necessary. I emphasize that the
Respondent was not required to do so, but where an employee
is let go in favor of one junior, then to sustain its burden under
Wright Line, the Respondent must come forward with some
rational explanation for doing so. Failing that tends to imply
that the true motive lies elsewhere and specifically was an
unlawful one which the Respondent sought to hide. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
Many of the strong union activists were cooks, four of whom
were not renewed in 1998: Leo Bagnes, Avelino Meneses, and
Hermie Coronejo. Bagnes had more seniority than eight cooks
who were renewed, Meneses 20, and Coronejo 12. The Re­
spondent offered no persuasive reason why these employees
were not renewed in favor of less senior employees; however,
the Respondent did show that it attempted to renew Bagnes but
could not do so because there was a qualified local to whom it
had to offer the job. I reject the General Counsel’s assertion
that Bagnes could have been renewed and that the Respon­
dent’s reliance on CNMI law in replacing him (and the others
named below) was bogus. As to the cooks, I conclude that the
Respondent failed to renew Meneses, and Coronejo in violation
of Section 8(a)(3) and (4) of the Act, in the case of Coronejo.7
Minette Floro, Carliza Carlos, and Loreta Rangamar were
cashiers. In my initial decision I found that Rangamar had been
discharged in violation of Section 8(a)(3). Floro and Carlos
were replaced by locals, thus, I conclude their nonrenewal was
not violative of the Act.
Victor Villasin, Maximo Piol, John Floderick Regino, and
Ronaldo del Rosario were bartenders and alleged discrimina­
tees. I concluded in my initial decision that del Rosario was not
7 Coronejo testified in a representation hearing.
unlawfully constructively discharged. As to Piol and Regino,
however, I conclude that the Respondent did not carry its bur-
den under Wright Line. While Piol and Regino had the same
seniority as four who were retained, no basis of selection was
proffered. Therefore, given that three individuals with less or
no union activity were retained, I conclude that in failing to
renew Piol and Regino the Respondent violated the Act. The
evidence suggests that the Respondent in fact attempted to re-
new Villasin, but his job was taken by a local resident. There-
fore, his nonrenewal was not violative of the Act.
Ramon Delfin was a carpenter who was not renewed. He
was replaced by a local and two union activist carpenters were
renewed. Both tend to show that the nonrenewal of Delfin was
not discriminatory. I conclude that the Respondent did not
violate Section 8(a)(3) as to Delfin.
Yolanda Perez was a cooks helper who was selected for non-
renewal on November 1 yet Oliver Abengana, who was not
shown to have been engaged in union activity and who had 10
years less seniority than Perez was renewed on November 19.
The Respondent did not explain this and I therefore conclude
that it did not rebut the prima facie showing that Perez was
selected because of her union activity.8
Alfonso Matibag was a union activist electrician. He was
not renewed on December 31, though he had apparently been
renewed on February 24, his anniversary day. In any event,
two electricians who had less seniority than Matibag and were
not shown to be union activists were retained. I conclude there-
fore that the Respondent did not meet its burden under Wright
Line as to Matibag.
Manuel Caisip, Ronaldo Sera Jose, and Gino Uson were
front desk clerks whom the Respondent attempted to renew but
could not because locals applied for the jobs. I conclude that
replacing these three individuals with local residents was not
unlawful.
Norman Gentolia was a general maintenance employee who
had been an employee of the month. He was not renewed on
May 31 while three employees with no union activity, less sen­
iority and no known awards were. I conclude that the Respon­
dent did not meet its burden that he would not have been re­
tained even in the absence of union activity.
Evangeline Jasareno, Helen Mateo Cacayan, Eliza Trinidad,
Luisa Adao, and Rosanna Cayabyab were union activist house-
keepers, all of whom were relatively senior. The Respondent
did not renew their contracts while keeping 17 less senior em­
ployees, in the case of Jasareno, 6 in the case of Cacayan, 15 in
the case of Trinidad, 7 in the case of Adao and 15 in the case of
Cayabyab. No explanation was given why, in effect, the Re­
spondent would discharge these employees and keep people
junior to them.
Frumencio Roa and Wilfredo Bobadilla were the only two
janitors identified as having been active on behalf of the Union.
Roa was not renewed on April 4 and Bobadilla on December
31. Three nonresident employees were renewed on December
31, all having less seniority than Roa. And on December 25 the
8 In making this finding, I specifically do not rely on Fujii’s test i­
mony that Iwabuchi told him Perez was targeted. As noted, I do not
credit Fujii.
DAI-ICHI HOTEL SAIPAN BEACH 495
Respondent hired two manpower employees. No reason was
given by the Respondent that it was necessary, as a result of the
economic conditions at the time, to rid itself of the two union
activists yet hire new employees from a manpower agency.
While almost all janitors were manpower employees, such does
not rebut the prima facie showing that Roa and Bobadilla were
terminated because of their union activity. I conclude that the
Respondent violated Section 8(a)(3) by not renewing their con-
tracts.
The waiters not renewed in 1998 allegedly in violation of the
Act were: Efren Govina, Jesus Gomez, Arthur Santos, Virginia
Lacsina, Benigno Peralta, Grace Rafael, Mauro Sabate, Manuel
Manalang, Elena Almariego, Alica Figueroa, Manolo Salvador,
Luisito Alonzo, and Digna Soriano. Each of these 13 employ­
ees was identified as strong union activists and each had more
seniority than nonresidents who were renewed but who were
not identified as union supporters. In addition, Almariego had
been an employee of the month runnerup. The Respondent
offered no reason why it picked union activists not to renew
and renewed the contracts of less senior employees who were
not actively engaged in the election campaign. Accordingly, I
conclude that the Respondent did not rebut the General Coun­
sel’s prima facie case and I conclude that these nonrenewals
were violative of the Act, except for Lacsina who was replaced
by a local resident.
For consideration at the reopened hearing, the General Coun­
sel amended the complaint to include the nonrenewal of three
bellhops and one plumber, all having been hired on September
10, 1997, and not renewed on May 13, 1998. The General
Counsel stated that they were not included in the original com­
plaint because the Respondent’s economic basis for not renew­
ing some employees was accepted. Contending now that “the
General Counsel no longer accepts that there was any validity
to the economic defense, even in part, as to any of the
discriminatees,” these individuals were included.
The Respondent moved to dismiss the amendment as to these
four individuals citing Peyton Packing Co., 129 NLRB 1358
(1961), and Jefferson Chemical Co., 200 NLRB 992 (1972).
These cases essentially held that the Board will not condone
litigating matters known to the General Counsel which could
have been litigated in a previous case. This is not a situation
where the General Counsel seeks to relitigate a previously de­
cided case on a different theory. This matter has not yet been
finalized by order of the Board. The hearing was reopened,
albeit for a limited purpose, but the essential facts relating to
these individuals were already in the record. I conclude that
allowing the amendment is not at odds with Peyton Packing or
Jefferson Chemical.
However, I also disagree with the General Counsel’s asser­
tion that the Respondent’s economic defense has no validity.
And, as to these four alleged discriminatees, I conclude that the
Respondent sustained its burden under Wright Line. They were
all short-term employees. None was replaced by a nonunion
activist. Indeed, the two plumbers who were retained were
shown to be strong union supporters. I conclude that the Re­
spondent reduced its bellboy and plumber complement for eco­
nomic reasons and there is no showing that by selecting the
four named individuals, it treated them disparately vis-a-vis
other employees. Accordingly, that the Respondent did not
violate the Act by not renewing the four individuals named in
the amendment.
Considering the above findings of fact, conclusions of law,
the entire record in this matter and the decision of the Circuit
Court in Dai-Ichi Hotel Saipan Beach v. NLRB, supra. I rec­
ommend the following
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act, including offering reinstatement (consis­
tent with CNMI law) to the following contract employees
whose contracts were not renewed between February 5 and
December 31, 1998:9 Avelino Meneses, Hermie Coronejo,
Loreta Rangamar, Maximo Piol, John Floderick Regino,
Yolanda Perez, Alfonso Matibag, Manuel Caisip, Ronaldo Sera
Jose, Norman Gentolia, Evangeline Jasareno, Helen Mateo
Cacayan, Eliza Trinidad, Luisa Adao, Rosanna Cayabyab,
Frumencia Roa, Wilfredo Bobadilla, Efren Govina, Jesus Go­
mez, Benigno Peralta, Arthur Santos, Grace Rafael, Manuel
Manalang, Elena Almariego, Alice Figueroa, Mauro Sabate,
9 In reviewing the record, I note that not all employees who fit the
category of strong union activist and seniority over employees who
were renewed were named in the amended complaint—Richard Ma­
nalang, Fernando Diamzon, and Flex Nilo, for instance. In addition,
counsel for the General Counsel represented that Chito Justiano did not
want to be renewed and therefore he was not named in the amended
complaint. Only individuals named in the complaint will be included in
the remedy.
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Manolo Salvador, Digna Soriano, and Lusito Alonzo and make Woolworth Co., 90 NLRB 289 (1950); and New Horizons for

them whole for any lost wages or other benefits they may have the Retarded, 283 NLRB 1173 (1987).

suffered in accordance with the formula set forth in F. W. [Recommended Order omitted from publication.]