Polynesian Hospitality Tours

National Labor Relations Board - Board Decisions

Nov 14, 1989

297 N.L.R.B. 228 (N.L.R.B. 1989)

228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
%vi
PHT, Inc., d/b/a Polynesian Hospitality Tours and
Hawaii Teamsters and Allied Workers Local
996, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO. Cases 37-CA-2443, 37-
CA-2453, and 37-CA-2467
November 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 27, 1988, Administrative Law Judge
Frederick C Herzog issued the attached decision
The Respondent filed exceptions, amended excep-
tions, a supporting brief, and a brief in answer to
the General Counsel's cross-exceptions, the Gener-
al Counsel filed cross-exceptions and a supporting
brief, and a brief in answer to the Respondent's ex-
ceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings,' and conclusions 2 as modified and to
adopt the recommended Order as modified
'The parties have excepted to some of the Judge s credibility findings
The Board's established policy is not to overrule an administrative law
judge's credibility resolutions 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 carefully examined the record and find no basis for reversing
the findings
The General Counsel has excepted to the judge's failure to find that
Operations Manager Sylva's oral threats of termination and the letters
sent to employees ratifying their termination were Independent violations
of Sec 8(a)(1) We find merit in this exception We agree that the threats
Independently violated the Act because they would reasonably tend to
discourage employees from continuing to exercise their Sec 7 rights, and
the letters memorializing the terminations underscored the effects of the
threats
The General Counsel has also excepted to the judge s failure to find
that the Respondent Independently violated Sec 8(a)(1) by selectively en-
forcing its no-solicitation/no-distribution rule against union activities
while simultaneously failing to enforce It against other types of solicita-
tions We find merit in this exception The Judge found that although the
Respondent disciplined employee Fuphana for soliciting for the Union at
an airport staging area, the Respondent placed no other restrictions on
employee discussion Further, the Judge found that although the Re-
spondent disciplined Fuphana for soliciting for the Union, it admittedly
did not discipline him for his distribution of betting slips to employees of
which It was aware Moreover, the judge noted the wide range of solici-
tation and distribution at the Respondent s premises Sylva, herself, ad-
mitted that she knew of and tolerated sales of various food products, etc,
among employees Thus, we find that, by disciplining employees for so-
licitation and distribution on the Union's behalf while allowing solicita-
tion and distribution for nonunion purposes, the Respondent has violated
Sec 8(a)(1) of the Act K & M Electronics, 283 NLRB 279, 279 (1987)
2 We agree with the judge, for all the reasons stated by him, that the
work stoppage commenced by the employees on November 10, 1986,
was protected by the Act In so finding, we note that the Board has
found to be protected employees' concerted activities concerned with the
selection or termination of a supervisor who has an impact on their work-
ing conditions Hoytuck Corp, 285 NLRB 904 (1987) In this case it is
1 The judge found that Kekuewa, cochief of the
Respondent's washcrew and an alleged discnmina-
tee, is a supervisor within the meaning of Section
2(11) of the Act The General Counsel has except-
ed, contending that Kekuewa exercises no inde-
pendent judgment in carrying out his duties We
find merit in this exception 3
While the washcrew cleans the vehicles accord-
ing to a list obtained from the dispatcher, Kekuewa
and his cochief observe the work of the crew to as-
certain that the crew works steadily rather than
"goofs off" The cochiefs are also responsible for
parking the vehicles Kekuewa's testimony indi-
cates that the members of the crew know their jobs
well and need little supervision He also testified
that he communicated with the crew, whose lan-
guage he does not speak, by banging on a bus to
get their attention and pointing to the job they
were to do Kekuewa conceded that Operations
Manager Sylva informed Kekuewa after a repre-
sentation hearing in 1985 that he was a supervisor
and that he could be disciplined for encouraging
employees to support the Union On one occasion,
when Kekuewa informed Sylva that an employee
had failed to follow his directions, Sylva told the
employee that Kekuewa was his supervisor and
that the employee should follow his instructions
Based on this evidence, the judge found Kekuewa
to be a supervisor Contrary to the judge, we find
the record insufficient to establish that Kekuewa is
a statutory supervisor Initially, we note that an
employer's holding out an individual to employees
as a supervisor is not necessarily dispositive of su-
pervisory status Adair Standish Corp, 290 NLRB
317, 323, (1988) In this regard, despite the above
incidents in which Sylva indicated to both Ke-
kuewa and another employee that the Respondent
viewed Kekuewa as a supervisor, we find the
record devoid of evidence that Kekuewa exercised
the independent judgment essential to a finding of
supervisory status under the Act, or indeed that
Kekuewa possessed any of the primary indicia of
supervisory status Thus, the record contains no
evidence that Kekuewa's direction of the work of
the washcrew or his authority to tell employees to
get back to work if they are malingering or sleep-
abundantly clear from Sylva's own testimony that her performance of her
dunes as operations manager directly affected the working conditions of
unit employees
'In adopting the Judge's findings that William Kahihikolo and Douglas
Wong, the Respondent s dispatchers, are statutory supervisors, we do not
rely on the judge s finding that Kahlhikolo was authorized to pledge the
Respondent's credit Regarding Wong, the General Counsel contends
that the judge erred in relying on a portion of Wong's testimony which
the Judge Interpreted as avernng that Wong made changes in employees'
schedules only about once or twice a month The General Counsel
argues that the judge has misinterpreted the testimony We do not rely
on the Judge s analysis of this testimony
297 NLRB No 30
POLYNESIAN HOSPITALITY TOURS 229
ing goes beyond the routine direction of simple
tasks or the issuance of low level orders that the
Board has found does not constitute supervisory
authority Black Kettle Ltd, 263 NLRB 380, 385
(1982) We therefore find that the record does not
establish that Kekuewa is a statutory supervisor
Accordingly, we further conclude that the dis-
charge of Kekuewa for participating in the employ-
ee work stoppage violated Section 8(a)(3) and (1)
of the Act 4
2 The judge inadvertently failed to recommend
that the Respondent be ordered to pay interest on
the make-whole remedy We shall modify the rec-
ommended Order accordingly
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, PHT, Inc , d/b/a Polynesian Hospitality
Tours, Honolulu, Hawaii, shall take the action set
forth in the Order as modified
1 Substitute the following for paragraph 1(a)
"(a) Interrogating employees, threatening to dis-
charge employees, inducing employees to abandon
a strike, disciplining employees for engaging in
protected concerted activities or union activities,
discnmmatonly enforcing a no solicitation/no dis-
tnbution rule against union activities, or discharg-
ing employees because said employees have en-
gaged in union or other protected concerted activi-
ties "
2 Substitute the following for the first sentence
of paragraph 2(a)
"Offer immediate and unconditional reinstate-
ment to their former positions of employment to
those employees discharged on November 10, 1986,
and make them whole, with interest to be comput-
ed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), for any loss of
earnings suffered by reason of the unlawful dis-
crimination against them"
4 In view of the judge s inclusion of Kekuewa, albeit inadvertent, in his
recommended Order, no modification to this aspect of his Order is neces-
sary
Wanda L Pate, Esq , for the General Counsel
Ronald Y K Leong and Cheryl K Kakazu, Esqs (Ko-
bayashi, Watanabe, Sugua, Kawashuna & Goda), of
Honolulu, Hawaii, for the Respondent
James A Kellogg, of Honolulu, Hawaii, for the Charging
Party
DECISION
STATEMENT OF THE CASE
FREDERICK C HERZOG, Administrative Law Judge
This case was heard before me in trial at Honolulu,
Hawaii, on February 24-27, March 2-6, March 9-10,
March 23-27, and March 30 through April 2, 1987 It is
based on charges filed by Hawaii Teamsters and Allied
Workers Local 996, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO (Union) on or about October 27 and No-
vember 21, 1986, and January 2, 1987, respectively (On
November 1, 1987, the Teamsters International Union
was readmitted to the AFL-CIO Accordingly, the
Union's name has been amended to reflect the change )
These charges alleged, generally, that PHT, Inc, d/b/a
Polynesian Hospitality Tours (Respondent) committed
certain violations of Section 8(a)(5), (3), and (1) of the
National Labor Relations Act (the Act) On or about
December 22, 1986, the Regional Director for Region 20
of the National Labor Relations Board (the Board) issued
an order consolidating complaint, consolidated com-
plaint, and notice of hearing in Cases 37-CA-2443 and
37-CA-2453 On or about February 4, 1987, the same
Regional Director issued a second order consolidating
cases, consolidated complaint, and notice of hearing
Collectively the consolidated complaints, as further
amended during the trial, alleged violations of Section
8(a)(5), (3), and (1) of the Act Respondent filed timely
answers to the allegations contained within the consoli-
dated complaints
All parties appeared at the hearing and were given full
opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, to argue
orally, and file briefs Based on the record, my consider-
ation of the briefs filed by counsel for the General Coun-
sel and counsel for Respondent, and my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I BUSINESS OF RESPONDENT
The parties agree, and I find, that Respondent is a
Hawaii corporation, with its office and place of business
in Honolulu, engaged in the business of providing
ground transportation for tours and transfers, that during
the calendar year preceding issuance of the initial com-
plaint herein, Respondent in the course and conduct of
such business, derived gross revenues in excess of
$500,000, that during that same year and from the same
business Respondent purchased and received at its Hono-
lulu facility goods and materials valued in excess of
$50,000 directly from outside the State of Hawaii, and
that Respondent is now and has been at all times material
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION
The parties agree,' and I find, that the Union is now,
and has been at all material times, a labor organization
within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A General Background
Respondent is a wholly owned subsidiary of Kobaya-
shi Travel Services Ltd (KTS) 2 Respondent's directors
are Hichiro Kobayashi, Kanae Kobayashi, and Tatsuki-
chi Kobayashi Respondent's president and chief execu-
tive officer is Michael Kobayashi and its secretary-treas-
urer is Lawson Teshima
Essentially, Respondent operates as a division of KTS,
serving to provide ground transportation, referred to as
"passenger transfers," to and from airports, to and from
hotels, on tours, and general transportation It is one of
four such companies operating in and around Honolulu
The employees involved in this case are primarily driv-
ers of buses or minibuses and tour narrators On some of
the tours the drivers also serve as the narrators and are
classified as English-speaking drivers (ESD) or as Japa-
nese-speaking drivers (JSD) Others among the drivers
are incapable of providing either English or foreign lan-
guage narration, thus requiring that most of their tours
be accompanied by "coordinators" or "tour guides,"
who provide narration for the tour group
Again speaking generally, Respondent's "clients" are
not the passengers which it transports, but, instead, the
travel agents who book the passengers with Respondent
for tours, transfers, and general transportation Thus, the
majority of runs for any given day are booked the night
before, when the travel agents provide Respondent with
confirmation of their bookings
Respondent's general procedure was to have employ-
ees call in by telephone to find out what was scheduled,
and to learn their respective work schedules for each
workday Employees were usually hourly paid, with the
rate being based pnmanly upon the length of their
tenure with Respondent, and with no premium being
paid for any language skills possessed by the employee
This case represents the first instance in which Re-
spondent has been charged with commission of unfair
labor practices And, while Respondent's employees
have never been represented for collective-bargaining
purposes, it should be noted that the Union filed a repre-
sentation petition with the Board in the summer of
1985 3 A representation heanng was held on August 12,
I Notwithstanding Respondent's initial denial of this allegation in its
answer, it was clear from Respondent's other statements and actions that
it did not seriously dispute this allegation, which comports with the find-
ing in a Decision and Direction of Election issued previously Thus, Re-
spondent ultimately stipulated to the truth of this allegation
2 This factual summary is in accord with facts stipulated by the parties
at the trial, and as more fully set forth in the Decision and Direction of
Election in Case 37-RC-2825, dated September 12, 1985, in which it was
found that Respondent and KTS constitute a single employer, and that an
appropriate unit should Include employees of both Respondent and KTS
3 Case 37-RC-2825
1985, and the Regional Director's Decision and Direc-
tion of Election, referred to earlier, issued on September
12, 1985 As directed, an election was held thereafter on
October 8, 1985 By a vote of 64 to 29 the affected em-
ployees chose to remain unrepresented by a union No
objections to conduct affecting the results of the election
were filed and the results of the election were subse-
quently certified
On October 22, 1986, the Union filed another petition
for representation 4 However, before investigation of the
petition had been completed, on October 27, 1986, the
Union filed the charge in Case 37-CA-2443, which had
the effect of blocking further processing of the represen-
tation petition 5 The charge in Case 37-CA-2443 al-
leged, generally speaking, that employees of Respondent
were being coerced and that a union adherent, William
Kahihikolo (sometimes referred to throughout these pro-
ceedings simply as "Kolo"), had been unlawfully sus-
pended by Respondent for soliciting other employees to
join him in seeking union representation
On November 10, 1986, there was a labor dispute at
Respondent's premises The nature and extent of the ac-
tions carned out by employees, managers of Respondent,
and union officials during the course of this dispute is
hotly contested by the parties to this case Suffice it at
this point to state that, growing out of this dispute, Re-
spondent terminated the employment of many of its em-
ployees
As a result, on or about November 21, 1986, the
charge in Case 37-CA-2453 was filed alleging generally
that Respondent had discharged employees on Novem-
ber 10, 1986, due to their participation in union activity
The Union's subsequent charge in Case 37-CA-2467,
filed on January 2, 1987, alleged generally that Respond-
ent violated Section 8(a)(1) and (5) of the Act by interro-
gating employees, and went on to request the issuance of
a bargaining order by the Board based on its claims that
it represented a majority of employees in the unit and
that the nature and seventy of Respondent's unfair labor
practices made it doubtful that employees could freely
vote for the representative of their choice
Thereafter, as previously stated, a second order con-
solidating cases, consolidated complaint, and notice of
heanng involving Cases 37-CA-2433, 37-CA-2453, and
37-CA-2467 was issued by the Regional Director, and
the issues raised therein, as well as the amendments
thereto during the trial, were tried by me on various
dates in February, March, and April 1987
B Stipulations of the Parties Concerning the Unit the
Employee Complement, and Management Officials
In the course of the trial the parties stipulated that the
following employees constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the National Labor Relations Act
All full-time and part-time employee of (Respond-
ent) and (KTS) in the classifications of maintenance
4 Case 37-RC-2871
5 Evidently a request to proceed was once filed, but later withdrawn
by the Union
„ POLYNESIAN HOSPITALITY TOURS 231
persons, wash persons, tour guides and tour coordi-
nators, drivers, excluding all other employees, office
clerical employees, guards and supervisors as de-
fined in the Act
Further, It was stipulated that the' parties remain in dis-
pute concerning the inclusion or exclusion of the follow-
ing employees in the stipulated bargaining unit, but that
said employees held the following job classifications and
received the indicated wage rates as of October 29 and
November 10, 1986
1 William Kahihikolo, dispatcher, $8 75 per
hour,
2 Doug Wong, dispatcher, $800 per hour,
3 William Kekuewa, Co-Chief, Washcrew, $4 35
per hour
Additionally, it was stipulated by the parties that on
October 29, 1986, and November 10, 1986, Respondent
employed the employees listed (together with their clas-
sification and wage rate) in Appendix B
Thus, summarizing from these stipulations, it is seen
that Respondent employed either as many as 97 (as con-
tended by counsel for the General Counsel and the
Charging Party) or as few as 94 employees (as contended
by Respondent) in the stipulated unit at all relevant
times
Finally, the parties stipulated that on October 29, 1986,
and November 10, 1986, the following named persons
occupied the positions set forth below and that these per-
sons are supervisors of Respondent within the meaning
of Section 2(11) of the Act and agents of Respondent
within the meaning of Section 2(13) of the Act, earning
the following salanes
Michael Kobayashi President
Gloria Sylva Administrative Assistant
Richard Mitsunaga Operations Management
Wesley Keahouhou Chief Dispatcher
Bill Busche Assistant Chief Dispatcher
C Issues Presented
The Principal issues in this case are as follows
(1) Whether employees of Respondent engaged in pro-
tected, concerted, and/or union activities,
(2) If so, whether Respondent thereafter engaged ' in
violations of Section 8(a)(1) and (3) of the Act,
(3) Whether Respondent promulgated and/or unlaw-
fully enforced a no-solicitation/no-distribution rule,
(4) Whether certain persons were employees instead of
supervisors,
(5) Whether the authorization cards which were ob-
tained from employees by the persons claimed to be su-
pervisors are tainted and should not be counted in the
reckoning of whether or not the Union ever attained ma-
jority status,
(6) Whether, and, if so, when the Union ever attained
majority status among an appropriate unit of employees
for purposes of collective bargaining,
(7) Whether the Union made a timely and appropriate
demand for recognition from the Respondent,
(8) What was the nature of the employees' actions
while engaging in a work stoppage on November 10,
1986, and thereafter,
(9) Whether Respondent unlawfully disengaged em-
ployees in response to their work stoppage of November
10, 1986,
(10) Whether employees engaged in misconduct suffi-
cient to bar them from reinstatement,
(11) Whether or not a bargaining order should be
granted in favor of the Union, particularly upon consid-
eration of certain claimed misconduct
D The Supervisory Issues
1 General statement of contentions of the parties
The Respondent contends that its two regular dis-
patchers and its two washcrew cochiefs are statutory su-
pervisors Counsel for the General Counsel and the
Charging Party take the opposite view 6
2 Applicable pnnciples ,
Under Section 2(11) of the Act, the term "supervisor"
includes
[A]ny individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, ,but requires the
use of independent judgment
Wntten in the disjunctive, the Act Must be interpreted
as meaning that proof of the possession of any one of the
powers and functions enumerated in Section 2(11) is suf-
ficient to establish supervisory status National Welders
Supply Co, 129 NLRB 514 (1960) However, one must
give due deference to the Act's requirement of "inde-
pendent judgment," "responsible" 'direction, and "effec-
tive" recommendation in order to avoid an overly
mechanistic construction of the Act See, for example,
Bay Area-Los Angeles Express, 275 NLRB 1063, 1073
(1985), and cases cited Supervisory status is not con-
ferred by virtue of the existence of authority to assign or
6 The evidence adduced on was extensive, even prolix, literally cover-
ing thousands of pages of transcript and documents The parties' "briefs'
added several hundred more pages of information to be considered
I shall be more succinct And, though my factual findings are Indeed
based upon careful consideration and weighing of the record as a whole,
and my observation of the demeanor of the witnesses, my recitation of
these facts and resolutions does not contain detailed references to all of
the evidence My credibility resolutions similarly are not detailed in
every Instance They have, however uniformly been derived from a com-
plete and exhaustive review of the record, the demeanor of witnesses,
and with due regard for the teachings of NLRB v Walton Mfg Co, 369
U S 404 (1962) In certain instances I set forth my reasons for credibility
resolutions in detail, while in others I have chosen to allow the resolution
to appear from the fact that I recite, as fact, certain testimony or Infer
ences arising therefrom, which necessarily varies from or contradicts
other testimonial or documentary evidence which I, apparently and obvi-
ously, found incredible and unworthy of belief
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
direct other employees if in doing so the alleged supervi-
sor has acted pursuant to standing instructions in an
"almost predigested environment," belying any claim of
true decisional Independence or responsibility, as op-
posed to the exercise of mere clerical or routine discre-
tion and authority Cf Pacemaker Driver Service, 269
NLRB 971 (1984), Walla Walla Union-Bulletin v NLRB,
631 F 2d 609, 613 (9th Cir 1980) Nor are isolated or in-
frequent incidents of apparent supervision sufficient basis
to elevate a rank-and-file employee to supervisory level
NLRB v Doctors' Hospital of Modesto, 489 F 2d 772, 776
(9th Cir 1973)
For, "[1]t is important for the Board not to construe
supervisory status too broadly, for a worker who is
deemed a supervisor loses his organizational rights"
McDonald Douglas Corp v NLRB, 655 F 2d 932 (9th
Cir 1981) 7 And, `Vile Board has a duty to employees
to be alert not to construe supervisory status too broadly
because the employee who is deemed a supervisor is
denied employee rights which the Act is intended to pro-
tect" Westinghouse Electric Corp v NLRB, 424 F 2d
1151, 1158 (7th Cm 1970) Accord Warner Co v NLRB,
365 F 2d 435, 437 (3d Cir 1966)
Thus, the Board has in the past, depending upon the
facts peculiar to the case before it, sometimes determined
that "dispatchers" are statutory supervisors (e g, Con-
necticut Distributors, 255 NLRB 1255 (1981)), and some-
times decided, with equal forcefulness, that "dispatchers"
are not statutory supervisors (e g, Spector Freight System,
216 NLRB 551 (1975), Fisher Foods, 245 NLRB 685
(1979)) 8
Uniformly, however, the Board has required that the
party alleging the existence of supervisory status bear the
burden of its proof Thayer Dairy Co, 233 NLRB 1383
7 The point is of great importance in this case For not only are the
organizational rights of the alleged supervisors affected by how their
status is decided but also the rights of each and every other employee in
the unit This is so because of the fact that a great many of the authoriza-
tion cards obtained by the Union were solicited and/or collected by an
alleged supervisor If thoie cards were solicited by a statutory superviso-
ry, they may be deemed tainted, as having possibly been obtained by
coercion, and may possibly not to be counted in determining whether or
not the Union ever came to represent a majority of the employees in the
unit Sarah Newman Nursing Home, 270 NLRB 663 (1984), Reeves Bros,
277 NLRB 1568 (1986)
9 In its brief Respondent seems to argue that no case-by-case approach
is permissible, and that I have no discretion but to follow the holding in
Gray Line Tours, 461 F 2d 763 (9th Cir 1972), which reversed the
Board's holding in Gray Line Tourv, 183 NLRB 153 (1970), and deter-
mined dispatchers' of a tour bus company to be statutory supervisors,
based upon "uncontroverted testimony" at the NLRB hearing to the
effect that such dispatchers possessed certain supervisor powers
I disagree Firstly, where the Board s view is known I am bound to
follow it, rather than a contrary ruling of a Federal Circuit Court of Ap-
peals, so long as the Supreme Court is silent on the point Iowa Beef
Packers, 144 NLRB 615, 616 (1963), Ford Motor Co (Chicago Stamping),
230 NLRB 716 fn 12 (1977), and cases cited therein Secondly, respect
fully noted, the Court s decision is plainly wrong, as It is premised upon
facts which could not have occurred (e g the Board s decision, which
the Court was asked to enforce, grew frcm a Motion for Summary Judg-
ment Thus, there cculd not have been a "hearing' where 'uncontrovert-
ed testimony was given Apparently, the court mistakenly relied on the
record of a prior representation case involving the same parties If so, the
Court evidently failed to take into account the fact that such hearings are
not adversarial in nature, but are merely investigatory, and are not con-
ducted with great regard for rules of procedure or evidence
(1977), Tucson Gas & Electric Co, 241 NLRB 181 (1979),
and cases cited therein
3 The dispatchers
a General overview of the jobs
Respondent is structured so that its president, Michael
Kobayashi (known as M K), reports directly to the
board of directors, all of whom are evidently older mem-
bers of his family M K is assisted by Lawson Teshima,
the secretary-treasurer From January 1985 until Novem-
ber 1986 a woman named Gloria Sylva served as Re-
spondent's operations manager and administrative assist-
ant Beginning in mid-September 1986, M K caused
Sylva to begin training someone to replace her in a few
months, a man named Richard "Mits" Mitsunaga, M K
planned to, and did, eventually transfer Sylva to another
job in a different corporation owned by his family
Respondent had a man named Wesley "Wes" Keahou-
hou serving in the position of chief dispatcher Another
man, William "Bill" Busche, occupied the position of as-
sistant chief dispatcher
Beneath all this structure the Respondent employed
two men as dispatchers William "Kolo" Kahihikolo was
frequently referred to as the "day shift dispatcher," and
Douglas "Dougie" Wong was referred to as "the night
shift dispatcher," notwithstanding the fact that each has
many times worked the other's shift 9
The two positions are functionally indistinguishable,
though the day shift is generally much the busier, and, as
noted later, the two men were, in fact, treated different-
ly Both dispatchers were required to punch a timeclock,
were paid by the hour, received the same benefits, and
were subject to the same rules and policies as employees
who Respondent admits were nonsupervisory
Since Respondent's earliest pickup was usually around
6 a m, the day-shift dispatcher generally started his
workday around 5 30 a m, and worked until around 3
pm ," at which time the night-shift dispatcher would
take over and work until around 10 or 11 p m
While the record is not entirely clear about the matter,
I gained the impression that the dispatcher(s) worked in
an office, at least partially surrounded by glass, enabling
the dispatcher(s) to see adjoining rooms or corridors
where other employees came and went, while punching
in or out on the timeclock, and while picking up their
dispatch or assignment sheets My impression was that
the dispatcher's office had one or more desks, as well as
space for telephone(s) and radio equipment, in recent
months it also had at least one terminal for a computer
which was installed by the Respondent and placed in
service in the spring of 1986
Work assignments for drivers and narrators were
made, so far as possible, in the early evening of the day
preceding each assignment Scheduling of assignments of
employees and equipment was a task reserved to man-
9 Relief dispatchers appear to have been recruited from among the
complement of drivers
19 Kahlhilcolo was entrusted with a key to the Respondent s facility I
resume this was to enable him to open It if he arrived in the morning
before anyone else
POLYNESIAN HOSPITALITY TOURS 233
agement officials, such as SyIva, Mitsunaga, Keahouhou,
Busche, and M K Dispatchers Kahihikolo and Wong are
admitted by Respondent to have played no part in its ini-
tial phase The schedule prepared by the managers
named above was then used by the night dispatcher to
relay information to individual employees about their re-
spective assignment(s) and hours of work for the follow-
ing day Employees were expected to telephone the dis-
patcher each evening and ask him about their assign-
ments for the following day, the dispatcher then checked
the assignments scheduled earlier as described above, and
relayed the information set out on the schedule to the
calling employee
The schedulers, however, frequently found themselves
unable to foresee during the previous evening Just how
matters would stand as the following day wore on Con-
sequently, they generally left some bookings unassigned,
or "open" The effect of this practice was that all such
"open" bookings required assignment during the course
of the following workday
Additionally, assignments required changes from time
to time because of other factors which could not be ac-
curately foreseen, such as new bookings, cancelled book-
ings, employee absences due to illness or other causes,
equipment malfunction, and the like Indeed there is evi-
dence that assignments were even made or changed
sometimes in order to accomodate an employee's person-
al desires, or to reward an employee
Occasionally Respondent's business became over-
loaded, due to factors such as last-minute bookings, em-
ployee absences, or equipment failure Whenever this
happened it became necessary for Respondent to contact
one of its competitors, in an effort to "farm out," or sub-
contract, whatever business it found itself unable to
handle
When making decisions about the assignment of
"open" bookings, or in making reassignments, Respond-
ent took a number of factors into account Among them
was whether or not the assignment could be made to a
driver or narrator without incurring an obligation for
overtime pay Also, the driver's or narrator's equipment
and language skills had to be taken into account and
matched correctly with the assignment
b Respondent's claims regarding dispatchers
Respondent claims here that Kahihikolo and Wong are
supervisors because, so it says, they possessed and exer-
cised certain of the powers enumerated in the statute as
being demonstrative of supervisory status While tacitly
admitting that Wong has seldom exercised most of these
powers," Respondent still asserts that because the jobs
of the day and night-shift supervisors are virtually inter-
changeable, and since each has performed the other's job
from time to time, the supervisory powers exhibited by
Kahihikolo in performing his job must be imputed as
well to Wong In the same vein, Respondent cites well
established authority for the rule that it is the possession
11 This tacit admission is of some interest because, as Sylva admitted,
the reason Wong seldom exercised any alleged supervisory authority was
that he preferred not to do so, and chose not to let involved" (Emphasis
added )
of supervisory authority, rather than its exercise, which
is determinative Cf Sarah Newman Nursing Home, 270
NLRB 663 (1984)
Respondent makes no claim that either dispatcher pos-
sesses the power independently to hire, fire, suspend, lay
off, recall, promote, reward, or discipline employees It
does claim, and therefore bears the burden of proving,
that both Kahihikolo and Wong possessed authority to
effectively recommend hiring and promotion of employ-
ees, and to effectively recommend discipline of employ-
ees Respondent further asserts that they possessed au-
thority the power to incur debt for Respondent Finally,
Respondent claims that each possessed, and regularly ex-
ercised, authority to assign work to and responsibly
direct the work of employees
c Evidence and findings regarding each claim
(1) Power to hire, rehire, and/or promote
Respondent claims that Kahihikolo effectively recom-
mended the hiring of an employee named Wayne
Lackno, and subsequently in his promotion, as well as in
the hiring of employees Rodney Doversola, John Cas-
tello, and Derek Lanosa
Sylva testified that Lackno was hired July 25, 1985,
based solely on Kahihikolo's recommendation of the day
before, and that she never interviewed Lackno or even
approved of his hiring Kahihikolo, in general, denied
Sylva's version, and claimed that all he had done was
pass information on to Lackno, with whom he had for-
merly worked at another employer, and to Respondent
concerning the question of whether he thought Lackno
would be a good or a bad employee r
Yet Kahihikolo was confronted on cross-examination
by an affidavit he had previously given, apparently to an
investigating agent of the Board In that affidavit he had
flatly stated that he had recommended the hiring of
Lackno Counsel for the General Counsel sought to re-
habilitate the testimony of Kahihikolo on this point by
eliciting testimony from him concerning the meaning
that he assigned to the word "recommend" My sense of
Kahihikolo's testimony subsequent thereto, and the argu-
ment made by counsel for the General Counsel, is that
Kahihikolo meant no precise or legalistic use of the word
"recommend" at the time his affidavit was taken, and
that the word was, from Kahihikolo's and her stand-
point, one that had been improvidently supplied by the
investigating agent for the Board, rather than Kahan-
kolo My observation of this testimony makes me agree
with counsel for the General Counsel's viewpoint
Many of the same points were made by the parties re-
garding a subsequent promotion (assuming, for the
moment, that it should properly be termed a "promo-
tion") allegedly recommended by Kahihikolo for Lackno
from the position of "driver" to the position of "relief
dispatcher"
Respondent sought to bolster its position by means of
documentation drawn up by Sylva, and by the introduc-
tion of Lackno's application Sylva's documentation
shows that Kahihikolo "recommended" Lackno, and
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lackno's application shows that he was referred by Ka-
hihikolo
Yet I must note that the allegedly corroborative docu-
mentation is nothing more than a handwritten memo by
Sylva, that it has obvious self-serving properties, that it
could have been drawn up at any time, that Kahihikolo
has not been shown to have ever seen or approved of it,
and that, on its face, it shows that there was (contrary to
Sylva's testimony) some "follow-up" done by some un-
known person Thus the documentation cannot be said,
in my view, to be sufficiently reliable to aid Respond-
ent's point of view on the matter Similarly, the fact that
the application, which was made out by Lackno, shows
that he was referred to the job by Kahihikolo, is of no
persuasive value to me in dealing with the question of
whether or not Kalulikolo "effectively recommended"
that Lackno be hired
Of some persuasive value to the contrary is the fact
that, as counsel for the General Counsel points out, Tat-
suluchi Kobayashi served as the general manager for Re-
spondent until early 1986, and that Michael Kobayashi
testified during the 1985 representation case hearing that
Tatsukichi Kobayashi reserved decisions on hiring to
himself Thus, since Lackno (as well as Doversola and
Castello, whose discussion follows) appears to have been
hired during the time period when Tatsukichi Kobayashi
reserved such decisions to himself, it seems scarcely sur-
prising to me that Sylva could testify, as she did, that she
had no input into the decision as to whether or not
Lackno would or would not be hired However, it also
appears clear that she had no basis to go further and tes-
tify that Lackno's hiring resulted solely from Kahihiko-
lo's recommendation, for a simple examination of Lack-
no's application ,for employment demonstrates that he
was highly qualified not only to be a driver but a dis-
patcher as well
Respondent also sought to demonstrate that driver
Rodney Doversola was recommended for hire by Kalu-
hikolo However, as with Lackno, the documentation
supplied by Sylva shows that there was followup work
done upon Doversola's application Once again, I find it
unpersuasive that Doversola has listed Kahihikolo on
that application as a reference for the job that he sought
by filing the application
Again, Kahihikolo initially denied recommending Do-
versola, but eventually recalled that Sylva had inquired
of him about Doversola and that he had told her that
Doversola was "a good worker" As with Lackno, ex-
tensive examination of Kahihikolo as to the meaning as-
signed by him to the word "recommend" led to no defi-
nite conclusion At various times during his testimony
Kahihikolo appeared to be conceding that he, in fact, did
flatly recommend drivers for hire (and apparently ex-
pected his recommendation to be acted upon favorably)
Yet, at other times, it seemed that the tenor of his testi-
mony, and the true understanding he had of his actions,
was that he was merely responding to management's in-
quiries or putting in a good word for a friend, without
any reasonable expectation that the words he spoke
would be effectuated
Sylva also testified that Kahihikolo recommended that
John Castello be hired, and that the recommendation
was effective Kahihikolo denied Sylva's testimony, but
all that has been said of Doversola could be repeated at
this point
Sylva testified that a former employee named Derek
Lanosa was rehired on the recomendation of Kahihikolo,
who spoke glowingly of the improvements that Lanosa
had made in his work habits and dependability Kahihi-
kolo admitted that he had counseled with Lanosa, so
that he eventually developed into a good employee
Once more, however, extensive questioning developed
little more than the fact that Sylva and Kahihikolo have
major semantical differences, at best
Summarizing, I must find that Respondent has not met
its burden of proving by a preponderance of the credible
evidence that Kahlhikolo was possessed of or exercised
the power to effectively recommend that employees be
hired, rehired, and/or promoted Obviously, no such
powers have been demonstrated with respect to dispatch-
er Wong In my opinion, the best that can be said of Re-
spondent's case with respect to Kahihikolo is that it is
demonstrated that Kahihikolo did on a number of occa-
sions, including with the four employees discussed
above, either advise upper management officials of his fa-
vorable opinions regarding job applications of his own
volition or upon their interrogation of him That he did
so with the expectation that his recommendation would
be effective, rather than merely in a hopeful vein, has
not been shown to my satisfaction
The law is clear that the authonty effectively to rec-
ommend generally means that the recommended action is
taken with no independent investigation by supenors, not
simply that the recommendation ultimately is followed
ITT Lighting Fixtures, 265 NLRB 1480 (1982) 12 Similar-
ly, the fact that management seeks advice as to the po-
tential of prospective employees from current members
of its own employee complement is not itself thought to
be sufficient to require a finding that those members of
the current employee complement be held to be supervi-
sors because of having given favorable recommendations
Cf Mower Lumber Co, 276 NLRB 766 (1985)
In deciding this question I must take into account the
relative lack of fluency in English language which I ob-
served in Kahihikolo While I concluded that there were
occasions during his testimony where he sought to parry
or evade questions by hiding behind a cloud of professed
or apparent misunderstanding, it is also true that I ob-
served many genuine instances where he failed to com-
prehend what was being asked him, and there were
many more instances where his answers were, due I
think to language difficulties, couched in terms which
cannot fairly be used to attach a precise or legalistic
meaning to any of the terms, such as "recommend," used
by him
So, there are two instances shown where the Respond-
ent received recommendations from Kahihikolo, and yet
had further followup of its own There is one instance
demonstrated where Kahihikolo's advice was sought out
by the Respondent And there is a final instance shown
12 Reversed on another Issue See Cal-Western Transport, 283 NLRB
453 (1987)
, POLYNESIAN , HOSPITALITY TOURS 235
where Kahihikolo volunteered information in an effort to
secure the rehiring of a friend of his
All I can say about this is that I see no pattern where
Kahihikolo has regularly or routinely exercised any au-
thority which I would feel is sufficient to label him a su-
pervisor based on any of the alleged proofs that he has
recommended hiring, rehiring, or promotion
I cannot close the subject, however, without adverting
to my inability to resolve the issue in Respondent's favor
on the basis of superior credibility of its witnesses For
while there were a number of troubling aspects to Kahl-
lukolo's testimonial demeanor, and while I do not regard
him as a thoroughly reliable witness, neither can I say
that, at least with respect to the points at issue in this
section of this decision, Sylva's testimony was markedly
superior or that I could attach any greater credibility to
it based upon her demeanor
Thus, I conclude that the Respondent has failed in its
obligation to carry the burden of proof on the issue of
whether or not Kahihikolo and Wong have been demon-
strated to be statutory supervisors by virtue of having
possessed or exercised the authority to hire, rehire,
and/or promote
(2) Power to discipline
Respondent contends that both Wong and Kahilukolo
had and possessed the authority to discipline other em-
ployees or to recommend that other employees be sub-
jected to discipline Again, however, Respondent makes
no effort to demonstrate that Wong has ever actually
used any of this purported authority Respondent instead
relies on its claim that the jobs are identical, and its
proof that Kahihikolo has attempted to discipline or to
recommend discipline for employees such as Derek Lar-
iosa, Doug Peneku, Mark Borden, George Kahoohala-
hala, Bruce Stupplebeen, Patrick Choo, and Joseph Chai
With respect to Lanosa, Respondent put in evidence a
documentation from Sylva showing that on July 19,
1986, Kahihikolo reported to Sylva that Lanosa was
"playing games again," and that Kahihikolo thought it
was about time that Lanosa was "talked to" Additional-
ly, Kahihikolo, himself, admitted that he had sat down to
talk with Lanosa and explained to him that he could
help himself and his family more by showing up for
work more regularly, and that if he wanted to make
money he should learn the tours
Thus, I accept as true Respondent's evidence that Ka-
hilukolo did indeed counsel Lanosa and make a report to
Sylva which ultimately proved to be a part of the record
relied on by Respondent in a decision to terminate Lano-
sa's employment
Yet, I do not believe that this is sufficient to demon-
strate supervisory power on the part of Kahihikolo First
of all, it does not serve Respondent's cause to demon-
strate that Kahihikolo either counseled other employees
or that he made reports which led to such counseling by
management officials One does not become a supervisor
merely by passing on information, as distinguished from
effective recommendations Cf George C Foss Co, 270
NLRB 232 (1984) And it seems to me that a fair reading
of Sylva's testimony on this matter, as well as the docu-
mentation placed in evidence, leads to the conclusion
that whatever action was taken against Lanosa by man-
agement in the nature of discipline was done only after
an independent investigation of its own by management,
and was not based solely on Kahihikolo's recommenda-
tion Nor can the "counseling" by Kahihikolo, by itself
be deemed sufficient to constitute the exercise of a super-
visory power Sylva admitted in her testimony that
"counseling" was not tantamount to "discipline," and ex-
plained that counseling is considered by Respondent
merely to be a "communication tool"
Employee Doug Peneku was issued a written warning
by Sylva in November 1985 The warning was placed in
his permanent personnel file record and explicitly states
that it would be used as a predicate for further, more
severe, discipline if the conduct referred to therein were
repeated Sylva testified, and Respondent introduced
documentary evidence in an effort to corroborate, that
this warning came at the recommendation and instance
of Kahihikolo
Kahihikolo initially denied making the recommenda-
tion attributed to him, but eventually admitted doing so
under cross-examination Additionally, he admitted that
when he made his report to Sylva he had in mind the
possibility that disciplinary action against Peneku could
result
Thus, I conclude that this was an example in which
Respondent has successfully demonstrated the use of su-
pervisory power to effectively recommend discipline by
Kahlhikolo
Employee Mark Borden was counseled, and Sylva
drew up documentation purporting to show that the
basis for such counseling was Kahihikolo's recommenda-
tion Kahihikolo testified that he had no recollection of
having made any such recommendation
As noted elsewhere, I have very s'enous reservations
about the credibility of either Sylva or Kahihikolo In
this instance, I would credit the testimony of Kahihikolo
over that of Sylva It makes little sense to believe that
Kahihikolo would have been complaining to Sylva, as is
indicated on the "documentation," to the effect that
Borden was making "constant" requests for "early offs,"
in view of the fact that this incident allegedly occurred,
if at all, on the first date on which Kahihikolo returned
to work following a long absence of illness
In any event, I find it unnecessary to resolve this ques-
tion because, as noted earlier, the only result of the
report, if the report was indeed made, was that Borden
was the recipient of a "counseling," and Respondent
cannot avoid the impact of Sylva's words conceding that
counseling was not considered discipline That being so,
it serves Respondent not at all to demonstrate that any
conduct on the part of Kahihikolo led to some reaction
by Respondent's managers which is not considered to be
discipline
George Kahoohalahala was issued a written warning
on June 30, 1986 Sylva testified that this came about as
a result of a recommendation made by Kahihikolo, and
her "documentation" was placed in evidence in an at-
tempt to corroborate her testimony on the point Kahihi-
kolo admitted reporting the actual basis underlying the
discipline, but denied that he made any recommendation
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I note that the documentation from Sylva states on its
face that the matter would be investigated and that disci-
pline would be issued to Kahoohalahala if that investiga-
tion warranted it Thus, it appears clear that Kahihikolo's
words were not sufficient to be an effective recommen-
dation, no matter how they were phrased Accordingly,
I decide this matter contrary to the Respondent's posi-
tion
I cannot agree with the argument advanced by Re-
spondent to the effect that Kahihikolo's recommenda-
tions were "effective," but merely had to be checked up
upon because of a penchant he allegedly had for "play-
ing favorites" It seems to me that, no matter what
reason Respondent had to check out the reliability and
accuracy of any report passed on by Kahihikolo, about
Kahoohalahala or anyone else, I need go no further than
to ask and answer the question as to whether or not the
recommendation was effective or was not effective,
without regard to the reason therefor
Though Sylva testified that employee Bruce Stupple-
been was the subject of a discharge recommendation due
to numerous unexcused absences, her own documenta-
tion of the event shows that she engaged in a "follow-
up" and that, as a result, she noted that Stupplebeen re-
turned to work, that he had a doctor's slip, and that no
disciplinary action was taken (Respondent makes no ar-
gument with respect to Stupplebeen in its brief and I pre-
sume the matter has been abandoned by it, as I believe it
should be, inasmuch as Sylva's own testimony demon-
strates that even if a recommendation was made it was
ineffectual )
Sylva testified, and her documentation purportedly
demonstrates, that employee Patrick Choo was the sub-
ject of a recommendation from Kahihikolo Yet, as with
other instances, 'her own documentation also demon-
strates that Choo f was not disciplined, and was, instead,
merely "counseled" Further, that documentation demon-
strates that there was a followup by Sylva, herself Thus,
not only is the question of how effective was any alleged
recommendation made by Kahihikolo answered negative-
ly from Respondent's standpoint, so is the question of
whether any disciplinary action was taken at all
Employee Joseph Chai was also allegedly the subject
of a recommendation by Kahihikolo Yet Sylva's testimo-
ny was that the recommendation was that he be coun-
seled, and that, indeed, was what ultimately occurred I
have serious doubts about the credibility of Sylva while
she was testifying about this matter and I am not inclined
to place more than a minimal credence in what she had
to say Nonetheless it seems unnecessary to resolve the
matter for, as previously noted no discipline resulted, but
merely a "counseling"
Summarizing, on the issue of the dispatcher's power to
discipline or to effectively recommend discipline, I have
decided that the facts in six of the seven instances raised
by Respondent do not support the Respondent's position
However, with respect to the facts surrounding the disci-
pline given to Doug Peneku, I file and conclude that Re-
spondent has met its burden of proof, and has demon-
strated an instance in which Kahihikolo evidently pos-
sessed and exercised supervisory authority within the
meaning of Section 2(11) of the Act Accordingly, I con-
dude that Respondent's evidence on this Issue, while
having succeeded in demonstrating the exercise of super-
visory authority by Kahihikolo on occasion, has failed to
meet Respondent's overall burden of proving that Kahl-
hikolo and/or Wong engaged in a pattern of conduct, as
opposed to isolated and nonroutme conduct, sufficient to
cause them to be determined to be statutory supervisors
(3) Miscellaneous indicia of supervisory authority
(a) Power to incur debt
As has been noted previously in this decision, there
were occasions when the schedulers of work were
unable to anticipate all of the needs to be realized on the
following day As a result, dispatchers were called upon
and expected to respond to those needs as they arose
Respondent claims that such responses amounted to the
exercise of independent judgment on the part of the dis-
patchers Counsel for the General Counsel claims, not
surprisingly, that such responses were no more than rou-
tine or clerical in nature, and based primarily upon in-
structions from higher management
Respondent evidently concedes that dispatchers were
not empowered to "farm out" business to other transpor-
tation companies unless the need was imperative As
Wong testified, the practice of "farming out," amounted,
in effect, to "giving away business" Yet, the totality of
the testimony from Kahihikolo and Wong led me to the
conclusion that there were repetitive instances in which
dispatchers were called upon, and did, conclude that Re-
spondent was unable to meet certain demands placed on
It by customers and, as a result, subcontracted with other
transportation companies, or "farmed out," the work in
question, in lieu of simply advising the client that Re-
spondent was unable to perform the work As always,
the question was whether or not the dispatchers did so
pursuant to instructions which rendered their jobs rou-
tine and clerical, or which allowed them discretion and
independent judgment
Respondent examined Kahihikolo with respect to a
load which had been farmed out to another carrier on
August 24, 1986 Kahihikolo's entry on the log for that
day indicated that "nobody help poor old me" First, I
was called upon to determine whether or not I should
believe Kahihikolo's previous testimony to the effect that
he had consulted with his chief dispatcher, Wesley Kea-
houhou, or had simply made a decision upon his own
Cross-examination on the subject might lead one to con-
clude that Kahihikolo had changed his testimony on this
particular subject and, when confronted with a prior in-
consistent statement, had determined that it would be im-
provident to stand by prior testimony
In fact, that is the conclusion that I have reached I
am well aware of the testimony to the effect that 90 per-
cent of the "farm outs" were handled by management,
usually Keahouhou or Busche, in situations in which
they instructed the dispatcher as to which company to
use The testimony of the dispatchers was, generally
speaking, to the effect that "farm outs" were always
done in consultation with, and at the direction of, higher
management officials, and in the few instances, where no
POLYNESIAN HOSPITALITY TOURS 237
higher management official was present, generally
around 10 percent of the occurrences, the dispatchers
merely followed guidelines previously given to them by
higher management Thus, the "farm outs" were done
without independent judgment, and merely as the exten-
sion of management prerogatives exercised through inter-
mediaries
During cross-examination Kahihikolo was led through
a series of incidents in which it would appear, on their
face, that he had "farmed out" work to other companies
based on considerations originating in his own judge-
ment Kahihikolo denied this to be the case Instead, so
Kahihikolo testified, he telephoned Keahouhou or
Busche when presented with the question of judgement
According to Kahihikolo it was one of these managers,
not him, who made the decision concerning, whether
work should be farmed out and, if so, to whom
Yet, extensive cross-examination and reference to doc-
umentary evidence on this subject, eventually led Kahl-
hikolo to admit that he made decisions whether or not to
"farm out" work depending on such factors as how
much time he had, whether a driver and equipment were
available, the proximity of available drivers, and "my
own discretion" (emphasis added)
Counsel for the General Counsel points out that such
subcontracts were let to companies which were on Re-
spondent's list of approved subcontractors Yet, Kahihi-
kolo was forced to admit on cross-examination that he
occasionally made farm outs to companies not on his su-
perior's "approved list," and that his decisions in this re-
spect were based on his personal relationship with the
personnel of companies which he selected Moreover,
the general thrust of the evidence in this matter tends to
lead me to believe that Kahihikolo actually determined
to, and did regularly practice farming out work to a
company not on the "approved" list based on his person-
al considerations, despite the fact that such decisions by
Kahihikolo resulted in a loss of money for Respondent,
by virtue of the fact that other companies, not selected
by Kahihikolo, offered a discount not offered by Kahihi-
kolo's choice
Thus, I have concluded that Respondent has shown
that Kahihikolo had a practice of farming out work to
other carriers of his awn choice, whether or not his per-
sonal choice did or did not prove to be in the Respond-
ent's ultimate best interest Accordingly, I conclude that
it has been demonstrated that this is a factor tending to
demonstrate that Kahlhikolo engaged in the practice of
routinely exercising independent judgement committing
Respondent's credit, as would be expected from one
vested with the authonty of a statutory, supervisor 13
(b) Access to confidential information
According to Sylva Respondent installed a new com-
puter system at its offices in June 1986 She testified that
this was the primary change made in the dispatchers' job
duties between the Union's campaign and that which oc-
curred in 1986 She would have it that the dispatchers,
IS I regard Respondent s evidence that dispatchers incurred debt in the
form of towing expenses, or expenses for taxicabs, as so sketchy as to be
lacking in probative value
by their use of the computer system gained access to Re-
spondent's personnel records, drivers' starting time, driv-
ers' hours-worked-to-date, drivers' trip sheets, drivers'
tips, drivers' sales, drivers' invoices, drivers' billings,
drivers' tariffs, farm outs, airport movements, etcetera
Wong claimed that his training upon the computer
began only 2 months before his termination, that he was
unable to operate the computer and required assistance
from Keahouhou and Busche Indeed Wong, Kahihikolo,
and a relief driver, all denied having access to any confi-
dential information or customer lists According to them,
in general, the dispatchers' duties on the computer in-
volved calling up and reviewing the various drivers' trip
sheets
I cannot regard this evidence as demonstrating that
either Wong or Kahihikolo are confidential employees
Looking at the evidence in its most favorable light to
Respondent I cannot conclude that it demonstrates that
either man assisted or acted in a confidential capacity to
a person who formulates, determines, or effectuates man-
agement policies in the field of labor relations That, of
course, is the test B F Goodrich Co, 115 NLRB 722,
724 (1956) The rule is that unless it can be shown that
the employee has played some role in creating the docu-
ment or in making the substantive decision being record-
ed, or that the employee regularly had access to labor re-
lations policy information before it became known to the
union or employees concerned, the Board will not find
the employee possessed of confidential status Associated
Day Care Services, 269 NLRB 178, 180-181 (1984)
Summarizing, I conclude that Respondent has not
demonstrated by a preponderance of the credible evi-
dence that either Kahihikolo or Wong had access to con-
fidential information sufficient to demonstrate that either
or both should properly be determined to have been a
statutory supervisor 14
In view of what has been stated above I must con-
clude that Respondent has failed in its burden of proving
that Kahihikolo or Wong is a supervisory employee by
virtue of either's access to "confidential information"
14 Respondent admits that its relief dispatchers are not to be deemed
supervisors Yet Respondent also admits that these same relief dispatchers
had access to "confidential information,' alleged to be indicative of su-
pervisory status, identical to that of Kalulukolo and Wong Yet, Re-
spondent makes no claim that the relief dispatchers are supervisory em-
ployees
I conclude that, true or not, Respondent s evidence demonstrates that a
dispatcher, whether relief or regular, could conceivably have had access
to information which might, if spread abroad, been embarrassing to Re-
spondent No such evidence has been presented Of particular Impor-
tance, there has been no evidence presented of any relationship between
such conceivable knowledge and Respondent's conduct of its own labor
relations In my opinion that failure is fatal to Respondent s position, for
the Board has held that only those who assist and act in a confidential
capacity to persons who formulate, determine and effectuate management
policies in the field of labor relations are determined to be outside the
protection of the act B F Goodrich Co, supra See also NLRB v Hen-
dricks County Rural Electric Corp, 454 U S 170 (1981) Viewing the evi-
dence in the light most favorable to Respondent I perceive no evidence
that dispatchers formulated determined or effectuated labor policies, or
that they acted in the confidential capacity to anyone having such re-
sponsibility Accordingly, It cannot be said that they are, or should be,
excluded from the unit Intermountain Electric Assn, 277 NLRB 1 (1985)
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) Special access to premises
Respondent points to the evidence that the dispatcher,
having arrived earliest in the morning, was frequently
called upon to open up Respondent's premises Thus, Re-
spondent's "day dispatcher" was routinely faced with the
prospect of opening up Respondent's premises, and in
order to do so Respondent's day dispatcher required the
use of keys or combinations While evidence was heard
with respect to whether or not the gate(s) to Respond-
ent's dispatch yard were or were not routinely locked, I
do not regard this issue as a question of substance In-
stead I believe that the evidence, read fairly, demon-
strates conclusively that the special access granted to any
"daytime dispatcher" resulted, not from any special
status, but rather from the ability of such an individual to
serve as a convenience to Respondent's managers
Thus, I conclude that Respondent's evidence is insuffi-
cient to establish a pattern, as opposed to individual and
isolated incidents, sufficient to establish that Respondent
granted special access to its premises to either Kahihi-
kolo or Wong sufficient to be indicative that one or
either of them was a supervisor within the meaning of
the Act
(d) Power to assign or responsibly direct work
As previously noted, Respondent's regular procedure
necessarily required that a number of assignments be left
open when the schedulers did their tasks each afternoon
or evening for the following day's work Additionally, as
also previously discussed, there were a number of sorts
of emergencies which could arise during the course of
the workday which required that changes in the sched-
ule be effected It is the contention of Respondent that
such changes require the use of independent judgment by
the dispatchers, that such changes were made regularly
and often, and that Respondent's evidence demonstrates
that it was not at all unusual for the dispatchers to effect
such changes based solely on their own judgment and
without being in consultation with anyone from upper
management -,
Counsel for the General Counsel concedes that the dis-
patchers are shown by ample record evidence to have
routinely effected changes in the duties of many other
employees However, she goes on to assert that Re-
spondent's evidence demonstrates only that such duties
are performed in routine fashion, do not require inde-
pendent judgment, were made pursuant to direct supervi-
sion, instructions, and both wntten and verbal guidelines
from upper management Moreover, so counsel for the
General Counsel asserts, one or more of Respondent's
upper management were nearly always on duty, monitor-
ing and supervising the dispatch office's operations
Counsel for the General Counsel, and her witnesses,
would have it that in approximately 90 percent of the in-
stances where such assignments or changes in assign-
ments are made following the time that the schedule is
drawn up that the assignment is made by someone in
management as opposed to one of the dispatchers, and
that during the remaining 10 percent of the time the dis-
patchers merely assign the run to the first driver who is
available, using basically a common sense approach
As it was with other issues regarding the supervisory
question, Respondent's primary witness was Sylva Ac-
cording to her, both Kahihikolo and Wong regularly
made changes in the work assignments of other employ-
ees without consultation with upper management
Indeed, as exemplars, a number of instances of documen-
tary evidence were introduced by Respondent These
purported to show changes made by both Kahihikolo
and Wong during several days during the fall 1986 Ac-
cording to SyIva most of these changes were done by
the dispatcher without management intervention For
reasons unexplained in the record Respondent did not
call Chief Dispatcher Keahouhou or Assistant Chief Dis-
patcher Busche to testify 18 Relief dispatcher Kelly, who
has worked at dispatching duties for at least 32 hours per
week since late October 1986, admitted that in the great
majority of instances where he was required to make
changes in the schedules prepared the night before he
was required to check with a manager, and that the in-
stance where he doesn't do so involve "transfers" of
short duration 18 Helen Ho was more than willing to
label Kahihikolo as the "head dispatcher," but, inconsist-
ently, indicated that Kahihikolo and/or Wong had no au-
thority Independent of Keahouhou or Busche 17 Michael
Kubiak claimed to have knowledge that it was the
evening dispatcher who made out the schedule, despite
the obvious impossibility that he had such knowledge
The fact is that he was working out on the road when
such duties were done (Yet still went on to testify incon-
sistently that Sylva was in charge of overseeing that
work )18
Thus, summarizing the testimony on the matter it
seems that Respondent would fail in carrying the burden
of proof on this matter, for not withstanding my strong
misgivings about the credibility of both Kahihikolo and
Wong, based, not only on their demeanor, but also on
their willingness to fabricate and modify their testimony
as they went along and were caught in seeming incon-
sistencies throughout their cross-examination, neither did
the testimony of any of Respondent's witnesses have the
"ring of truth" about it
However, it does appear to me that a resolution of this
is possible I reach that resolution by resort to the docu-
mentary evidence introduced by Respondent, and by re-
15 Since there was no showing that either was unavailable to testify, I
Infer therefrom that their testimony would have been adverse or unfavor-
able to Respondent s cause Martin Luther King Nursing Center, 231
NLRB 15 fn 1(1977) .
16 Kelly was an exceptionally incredible witness His bias against the
Union seemed palpable both from his testimonial demeanor, as well as by
his willingness to embellish upon and magnify any fault of counsel for the
General Counsel's witnesses Consequently, I have determined to accept
any of his testimony only with the greatest of care and reluctance and
only in those Instances where It is not in dispute and has corroboration
which seems credible
17 Ho s credibility is in extreme doubt due to her inconsistency and
seeming confusion, as well as the virtually bristling bias against the Union
which she exhibited in her demeanor
" Once more, I largely discredit the testimony of this witness, not
only because I felt that he was guilty of bias, but also because he demon-
strated that he was confused and was quite willing to look past logical
inconsistencies to testify to conclusions that he could not conceivably
have knowledge about
POLYNESIAN HOSPITALITY TOURS 239
calling several admissions made by Kahihikolo and
Wong
I agree with Respondent's argument that Wong con-
sciously attempted to portray himself in a minimalist
light, as simply a night dispatcher who had no real input
into the job duties of employees, and who was required,
due to some unforeseen exigency, to effect a schedule
change without consulting with upper management only
about once a month on the average However, that claim
has been demonstrated to my satisfaction to be untrue
Kelly testified (incredibly, as previously noted, but in
this instance, backed up by Respondent's documentary
evidence) that the night dispatcher regularly was left
with roughly 20 to 30 percent of the day's total "runs"
open for assignment This would be true despite the fact
that the day dispatcher would attempt to fill as many as
those slots as possible during his time period on duty
And it remains true despite the fact that one can accept
true the claim of both Kahihikolo and Wong that many,
if not most, of the assignments which they made to these
runs were indeed made in consultation with someone
from upper management And both dispatchers, during
the course of their cross-examinations, have been shown
to my satisfaction to have made such changes, of their
own independent volition with substantially more fre-
quency than either was willing to admit when questioned
on direct examination about the subject
This, in itself, would not be decisive The mere fact
that either made such schedule changes does not indicate
one way or another the degree of independence exer-
cised Yet, when literally pinned to the mat by cross-ex-
amination, both Kahihikolo and Wong admitted to sub-
stantial independence of judgment .
For example, with respect to September 7, 1986,
Wong was questioned about the fact that he had written
in changes on eight open runs for that day, involving five
employees Under cross-examination on the question of
whether or not he did so independently, he ultimately
admitted that he could not recall that such changes were
authorized by anyone in upper management, but that it
was his opinion that he did it himself
Similarly, Kahihikolo, claiming that his instances of as-
signments were limits to sporadic and infrequent in-
stances when upper management officials were not
present, and then were limited by upper management's
general guidelines set forth in written or verbal instruc-
tions, was forced under cross-examination to admit that
in a instance of times he made such assignments and that
his cntena for doing so "depended upon the circum-
stances, and on a number of factors," including his "duty
to take care of the load the best we can" As he
phrased it, he took it upon himself to do whatever was
necessary to get the job done 19
19 As to the existence of any written guidelines, there was extensive
inquiry dunng the course of the trial of a number of witnesses I can only
say that while a number of memoranda were ultimately produced and put
into evidence, I have absolutely no hesitance in saying that there was no
general criteria, in writing, for dispatchers to use in carrying out their
jobs This is not to say that dispatchers would not have access to records
by which they might comply with general instructions of a routine
nature, such as avoiding assignments to employees who had already
worked substantial numbers of hours dunng the week and might, if given
another assignment, incur additional costs for overtime wages
I cannot forget the testimony of Kahihikolo admitting
that in making the assignments he would be required to
take into account his own knowledge of the proximity of
the driver he was considering calling into Respondent's
facility, that driver's experience with different sorts of
equipment, the driver's ability to perform certain special-
ized functions such as conducting tours in either English
or Japanese, and to generally monitor the situation so
that Respondent's efforts to avoid seeming to "play fa-
vorites" were not thwarted In rn5; opinion these factors
add up to a situation in which dispatchers were expected
several times daily to exercise judgement of an independ-
ent nature in assigning work to drivers and other em-
ployees associated with tours
Thus, in accepting this evidence, I feel compelled to
conclude that Respondent has carried its burden of dem-
onstrating that both Kahihikolo and Wong (and it would
seem also true for any relief driver, such as Kelly, work-
ing as much as 32 hours per week in the job of dispatch-
er) to be statutory supervisors Accordingly, I must, per-
force, further conclude that both Kahihikolo and Wong
are not employees, but, as supervisors, are not entitled to
the Act's protection
I make this conclusion reluctantly, not only because of
the injunctions set forth initially, but also because of my
"feeling" that it may simply be the incorrect conclusion,
despite the fact that it is the conclusion to which the evi-
dence has led me I say this because of the fact that Re-
spondent has, in my opinion quite obviously, played it
somewhat "fast and loose" in its adoption of the position
that Kahihikolo and Wong are statutory supervisors My
agreement with Respondent's position necessarily has a
widespread and profound effect upon many other issues
in this case, in effect, depriving many einployees of rep-
resentation rights to which, in my opinion, they might
otherwise be well entitled
I specifically refer to the position talcen by Respondent
during the course of the hearing on the petition for rep-
resentation election filed by the Union in 1985 In the
course of the hearing therein Sylva testified Her testimo-
ny and the position of the Respondent was that in the
fall 1985 the dispatchers were not supervisors Respond-
ent attempts to explain this by, disingenuously I think,
claiming that she was only referring to Respondent's ef-
forts to include yet another member of the family which
owns Respondent, Yuki Kobayashi, in the bargaining
unit I reject that argument I also reject Respondent's
argument that, in the time, intervening between the 1985
representation hearing and the 1986 filing of a petition,
dispatchers' duties were substantially changed, most no-
tably by the introduction of the computer system giving
them access to confidential personnel and business infor-
mation, and by efforts made to get the dispatchers to
properly exercise more of their authority so that upper
management would not constantly have to be present
These are all matters which I find have been raised by
Respondent but have not been adequately proven To
the contrary, Sylva admitted at one point during this
trial that dispatchers' duties were not substantially
changed from that which they had in 1985 (a time when
she herself claimed that she felt such employees were su-
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pervisors, notwithstanding her testimony at that time to
the contrary)
Thus, summarizing, the Respondent's arguments and
evidence in this respect seems somewhat malodorous
and, as I have stated, were it not for the documentary
evidence and admissions made by Wong and Kahihikolo,
I would not have found them to be supervisors in this
case
Concluding, however, it is my finding and my conclu-
sion that both Kahihikolo and Wong must be found to be
statutory supervisors within the meaning of the Act, and
to, therefore, be excluded from the protection afforded
by the Act Additionally, as will be commented upon at
other points herein, Kahihikolo's participation in the so-
licitation and collection of authorization cards from
fellow employees must, I think, be found to have had a
substantial effect upon the rights of all his fellow em-
ployees 20
E Background of 1986 Organizational Campaign
Following the failure the Union's organizational drive
leading to its defeat in the election conducted in the fall
of 1985, the Union's campaign appears to have lain dor-
mant for a period of some months, notwithstanding cer-
tain testimony that organizational efforts "never really
stopped"
However, during the months of late summer and early
fall 1986 it appears from counsel for the General Coun-
sel's evidence, that several employees began to complain
to management about working conditions For example,
some of these drivers belonged to what was called a
"Drivers Committee "21
The "Drivers Committee" met with management offi-
cials approximately once per month, generally at the call
of Respondent's management Ordinarily, Respondent
was represented at these meetings by Gloria Sylva, Mi-
chael Kobayashi, Richard Mitsunaga, Wes Keahouhou,
and Bill Busche
By the fall 1986, however, Respondent came to view
the attitude and morale of employees, including drivers,
as being so low as to require management intervention
Thus, management caused a meeting of the Drivers
Committee to be convened, and required that attendance
be considered mandatory This meeting was scheduled
for September 9, 1986
At this meeting, the parties discussed starting times,
daily hours, weekend days off, assignment of runs, oil
problems, mechanical condition of the equipment, load
changes, sick leave, uniforms, schoolbus drivers, and the
condition of the drivers' room Among the complaints
20 I cannot end this section without mentioning that I regard Respond
ent's proof that several of the fellow employees of Kahihikolo and of
Wong regarded either or both of them to be supervisory employees as
being very unpersuasive First of all, there is no indication that a majori-
ty, or even a substantial minority, so regarded Kahlhikolo and Wong
Nor does it take into account the evidence presented by counsel for the
General Counsel pointing to an opposite conclusion In this regard, I
view the evidence as being insufficient to persuade me to adopt Respond-
ent s position
21 The committee had, in fact, been initiated by Respondent It ap-
pears, however, that during its lifetime a number of employees came to
regard It as a creature belonging to themselves, rather than to Respond-
ent
addressed by the drivers to management was that drivers
were concerned that assignments were not made fairly,
and that some were based upon favontism This eventu-
ally led to the drivers request that the Drivers Commit-
tee present such concerns to management, and their fur-
ther request that a written response be posted thereto
Within a day or two thereafter, management orally re-
sponded to the concerns which had been expressed in
writing by employee Daniel Pihana, which summarized
employee complaints and concerns raised at the Septem-
ber 9, 1986 meeting
Thereafter, the representatives of drivers on the Driv-
ers Committee met once again with management repre-
sentatives on September 23, 1986 At that time they told
Respondent's managers that the responses to the ques-
tions raised at the meeting of September 9 were unac-
ceptable Respondent's management, however, made no
further response and never posted a written response to
the concerns raised in either of the earlier meetings
On October 10, 1986, Respondent's management
scheduled a meeting with the Drivers Committee How-
ever, instead of a regular meeting, a special meeting was
conducted That meeting didn't take place at Respond-
ent's place of business Instead, it was convened at the
home of Hichiro Kobayashi, a member of the board of
directors, the uncle of Michael Kobayashi, Respondent's
president Management officials present were Hichiro
Kobayashi, Michael Kobayashi, and Lawson Teshima
Drivers Committee representatives present were Daniel
Pihana, Jerry Kaahanui, and Brian Okimoto During the
course of this meeting Respondent's representatives
brought up and discussed with the employees the results
of a "survey" which had been previously run by Re-
spondent's labor relations consultant on employees' atti-
tudes concerning management Additionally they In-
formed the employees that, during the previous year's
organizational attempt by the Union, Respondent had
been compelled to expend approximately $70,000 to
"fight the Union" Drivers representatives were asked to
restate the complaints of other drivers They responded
by saying that employees felt that Sylva was unfair, and
that she showed favoritism among the various employ-
ees A discussion ensued, which included alleged in-
stances in which such favoritism was displayed
At its conclusion, Hichiro Kobayashi instructed Mi-
chael Kobayashi to "make the move" to transfer Sylva
out of the transportation division of Respondent's corpo-
ration and into another division It is asserted, without
rebuttal, that he repeated this command to Michael Ko-
bayashi a number of times during the course of the meet-
ing There is no claim by Respondent that during the
course of this meeting that employees ever demanded
that Sylva be transferred or terminated
The employees were assured that the statements made
by them and responses given to them would be kept con-
fidential However, the very next day employee Danny
Pihana was called into Respondent's office Once there,
Sylva loudly complained to him about the statements
made at Hichiro Kobayashi's house the night before, es-
pecially those concerning her Obviously, Sylva had
POLYNESIAN HOSPITALITY TOURS 241
been informed about the specific grievances raised by
drivers concerning her stewardship
On October 15, 1986, William Kahihikolo was called
into a meeting with Richard Mitsunaga, the operations-
manager-in-training Mitsunaga asked Kahihikolo how he
felt about the Union and whether Kahihikolo knew how
other employees felt about Mitsunaga Mitsunaga solicit-
ed Kahihikolo's assistance in securing backing from the
employee complement Kahihikolo asserted, but indicat-
ed that Mitsunaga would have to earn employee's re-
spect At that, Mitsunaga took from his files a letter indi-
cating that Kahihikolo had been soliciting for the Union
(More about this issue will be raised and discussed at a
later point here )
Kahihikolo denied solicitation, but equivocated as to
what had been asked him by other employees
On October 22, the Union filed a representation peti-
tion That same morning, before the petition was filed,
the Union's representative, Harold Dedosta, Informed
Respondent's management consultant, Benjamin Ventura,
that the Union would be filing that petition
Sylva admitted that on October 22, 1986, she ques-
tioned employees Warren Ishii, Danilo Patlingrao, Eric
Antonio, and Ronaldo Valera, each of whom Was a
member of the washcrew She testified that she asked
them about their union activities
On October 24 Kahihikolo and Wong were instructed
to attend a meeting of management officials They did
so While there Mitsunaga told Kahihikolo that he
should consider this a counseling session, rather than a
disciplinary meeting They were handed a three page
document dated October 23, 1986, addressed to "P H T
dispatchers" regarding a "letter of counseling no-
solicitation/distribution policy and employees' duties of
loyalty and confidentiality" According to this memoran-
da the dispatchers are required to abide by the no-
solicitation/distribution policy found in the employees
handbook Following the discussion, Wong was excused
from the room Kahihikolo, however, was kept there,
and Michael Kobayashi handed him a two page "notice
of suspension" By its terms, Kahihikolo was suspended
for a period of 7 days, allegedly for violation of the no-
solicitation/distribution rule, insubordination, and sleep-
ing on the job
Thereafter Kahihikolo received a copy of the letter,
took it to the Union's office, and the Union thereafter
filed an unfair labor practice charge based thereon, dated
October 27, 1986
Employee Daniel Pihana credibly testified that Re-
spondent's suspension of Kolo caused "hot discussion"
among other employees on the issue as to whether or not
Respondent was being unfair According to Pihana some
employees were of the opinion that it was unfair to sus-
pend Kahihikolo because he had been soliciting, while
the Respondent, so some employees claimed, took no
action against another employee, Wayne Lackno, who
had also, so the rumor went, been engaged in solicitation
on the Company's premises and time Pihana also called
to mind the point made by some employees to the effect
that employee James Nhomi had also been disciplined
for engaging in solicitation, also receiving disparate treat-
ment from that afforded Lackno According to Pihana,
the perceived reason for the favoritism toward Lackno
was that he was thought to enjoy a personal relationship
with Sylva 22
On October 29, 1986, representatives of Respondent
met with a representative of the Union at the Board's
office According to the credited testimony of the
Union's representative, James Kellogg, he engaged in a
discussion there with officials of Respondent, including
Michael Kobayashi, Lawson Teshima, and Gloria Sylva,
as well as the Respondent's attorney and its labor rela-
tions consultant In the course of that discussion Kellogg
stated to them that the Union was asking for recognition
for an overall unit which would include the tour guides,
the dispatchers and all of the remainder of the unit as set
forth in the petition previously filed by the Union, and as
had been found by the Regional Director to be appropri-
ate in the representation case of 1985, mentioned above
Kellogg also told Respondent's labor relations consult-
ant, Benjamin Ventura, that the Union had filed an unfair
labor practice charge against Respondent because of its
suspension of Kahihikolo Kellogg made much the same
remarks to Michael Kobayashi When Respondent's at-
torney joined in the conversation and retorted to Kel-
logg that it was only an allegation and that nothing had
been proven, Kellogg stated that the Union was going to
preserve the employees' rights in any legal way, includ-
ing a strike
The parties failing to reach agreement on the appropri-
ate unit, a hearing was scheduled in the representation
case for November 5, 1986 As previously noted, howev-
er, it did not occur on that date, in as much as the Union
withdrew its request to proceed
Kahihikolo returned to work on November 3, 1986,
the same day that Respondent issued a letter of counsel-
ing to driver Larry Fujihana, for his alleged violation of
the no-solicitation/distribution rule Sylva claimed that
the letter to Fujihana was justified because Fujihana had
"tongue lashed" employees in favor of signing union au-
thorization cards at an airport holding area, known collo-
quially as the "0 K Corral," where buses frequently
wait for their assignments and where employees fre-
quently gather in only one bus
On November 7, 1986, Kahihikolo arranged a meeting
with another of the Union's representatives, Harold De-
Costa 23 Kahihikolo testified, and was corroborated by
both Wallace "Bozo" Shrinski, a driver, and DeCosta
that DeCosta met with Kahihikolo, Shrinski, Doug
Wong, and Derek Lanosa, a former employee, at the
Union's offices that day Among the matters discussed
were allegations by employees that employees were
being interrogated by Sylva concerning who had been
22 Sylva admitted the personal relationship with Lackno, though of
course, denying any favoritism as a result
23 Employees were acquainted with several officials of the Union, both
as a result of the campaign during 1985 and also as a result of the organ'
zational activities in the fall 1986 For example, as previously noted, Kel
logg had worked upon the representation case negotiations and meetings
And DeCosta and Anna Okhalt had conducted meetings with employees,
at which authorization cards were distributed, the Union's cause was ex-
plained and extolled, and union authorization cards were collected back
Additionally It is presumed that many employees were familiar at least
with the name and reputation of the Union s president, Art Rutledge
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signing union authorization cards and who had been
working on behalf of the Union, alleged harassment of
those engaged in union organization, the suspension of
Kahihikolo, Respondent's position with respect to the in-
clusion or exclusion of employees in the proposed unit,
and Shrillsla's complaint with respect to the way em-
ployees' workdays were scheduled, including a specific
complaint about his own situation DeCosta responded to
their complaints by noting that the Union had already
filed an unfair labor practice charge on behalf of Kahihi-
kolo, and by stating that the Union was giving consider-
ation to setting up a recognitional picket line 24 The
meeting adjourned without any decision as to when or if
particular further action would be taken
However, the issue of whether or not employees
would engage in activity to protest perceived injustice,
or simply in support of one another, would not rest On
November 8, Kahihikolo was telephoned by Wong
Wong raised the issue of whether or not employees
should have a "stop work meeting" on the following
Monday, November 10 Kahihikolo, in turn, talked to
employees Jerry Kaahanui, Pat Kahue, Joe Chai, Mark
Borden, and Wallace "Bozo" Shnnski
At 4 in the morning of November 10, 1986, Kahihi-
kolo telephoned DeCosta to tell him that the employees
intended to have a "stop work meeting" that day Ac-
cording to DeCosta, Kahihikolo told him that employees
were fed up, that they couldn't stand the harassment, the
interrogations and that they wouldn't wait any longer for
the Union to schedule a date Kahihikolo asked DeCosta
to come to a restaurant named Zippy's near Respond-
ent's premises and speak to employees He asked De-
Costa to speak on behalf of the employees to Respond-
ent DeCosta credibly testified that he agreed to do so
According to DeCosta's further testimony, which I
credit, he met with a number of employees, including
Kahihikolo, Wong, Shnnski, Borden, and others at
Zippy's around 6 30 that morning They told him, in es-
sence, that they were complaining of the same things as
Kahihikolo had stated earlier to him on the phone De-
Costa recalled that resentment was expressed regarding
the fact of Kahihikolo's suspension, and the way in
which it had been done
24 DeCosta credibly testified, and Ventura quite incredibly and prepos-
terously denied, that both in the weeks preceding and in the days suc-
ceeding this meeting with employees DeCosta and Ventura had a series
of conversations, both by phone and in person, during which they chs
cussed the fact that the Union sought recognition, had filed a petition in
furtherance of that desire, had filed an unfair labor practice charge
against Respondent, and was prepared to take further actions on behalf of
employee, including doing whatever was necessary to represent employ-
ees Ventura s attempts to portray himself not as a representative of Re-
spondent, but merely as an interested bystander struck me as so dishon-
estly stated as to be offensive His attempts to disassociate himself with
what were plainly negotiations between the Union and Respondent con-
cerning issues which arose between the parties as the Union mounted its
campaign in the fall 1986, filed a petition engaged in discussions concern-
ing the inclusions and exclusions for the appropriate unit, and thereafter
engaged in discussions with respect to the employees actions of Novem-
ber 10, 1986, and thereafter seem to me to be freely Interspersed and
Interlaced with falsity I do not credit Ventura s testimony in any in-
stance other than an admission His cavalier and arrogant demeanor
caused me to conclude that falsehoods fall easily from his lips Cf NLRB
v Walton Mfg Go, 369 U S 404, 408 (1962), quoting from Dyer vs Mac-
Dougall, 201 F 2d 265, 269 (2d Cir 1952)
In order to understand Respondent's view one must
return again to the meeting of October 9 between the
Drivers Committee and management officials, including
Kobayashi Respondent's evidence, which I credit, was
to the effect that it was explained to the Drivers Com-
mittee at that meeting that Respondent needed to remedy
a poor financial condition by making an investment in
luxury sedans, so as to better serve its customers Going
on, however, Respondent admits, as General Counsel
contends, that Pihana insisted that the meeting be consid-
ered confidential and that, upon receiving assurance that
it was, he and the other members of the Drivers Com-
mittee began to discuss grievances that employees had
against Gloria Sylva Respondent admits that these
grievances centered around the scheduling of runs, and
around charges that Sylva favored her boyfriend, Wayne
Lackno, though Respondent makes no admission that
such charges were well founded Additionally, Respond-
ent points to the fact that testimony was admitted to the
effect that a driver named Jeremiah Kaahanui stated that
"the men were having an awful time taking orders from
a woman, especially receiving discipline from a woman,
because they felt uncomfortable in giving any kind of
answer back and using the words that they're used to"
Thus, if I understand Respondent correctly, its employ-
ees were guilty of sexual discrimination against Supervi-
sor Sylva by contending that they were not free to ex-
press themselves in the vulgar terms to which they were
accustomed In any event, so Respondent contends,
Pihana went on to explain that the drivers wished to
have Sylva moved out of her position as soon as possi-
ble, to which Lawson Teshima responded that Sylva was
already slated to be moved out to Respondent's sales de-
partment in about 3 months Pihana asked to see Re-
spondent's position put down in writing At the end of
the meeting, so Respondent contends in complete agree-
ment with counsel for the General Counsel, Hichiro
Kcbayashi stated his opinion that the move should be
made as soon as possible Thus, the meeting broke up,
and evidently the understanding was that Pihana was to
get this understanding set forth in writing Equally evi-
dent, he did not
Respondent concedes that it had planned to transfer
Sylva to the sales department, and that that was the
reason why Mitsunaga had been hired as the operations
manager, effective September 15, 1986 Nevertheless, so
Respondent contends, Mitsunaga required further train-
ing in order to fulfill his responsibilities when he took
over all of the functions as operations manager of Re-
spondent Thus, as we came to the fateful day of No-
vember 10, 1986, it was Sylva's opinion that Mitsunaga
was not yet ready to take over her position 25
25 Respondent contends, in effect, that its actions should have placated
employees It points toward a memo posted on September 15, 1986, an-
nouncing Mitsunaga s promotion, and another of October 21, 1986, as
well as Pihana s admission that he knew that Sylva was to be transferred
eventually It argues therefrom that the employees were unreasonable in
thereafter protesting the actions of Sylva as well as demanding her
ouster Indeed it claims that employees acted unlawfully in demanding
Sylva s transfer Respondent states flatly in its brief that, in its opinion,
the walkout of November 10, 1986, was engaged in by a number of its
Continued
POLYNESIAN HOSPITALITY TOURS 243
As I have previously discussed, communications were
going back and forth over the previous weekend and the
night preceding November 10 between various employ-
ees and the Union They also were going on between
members of Respondent's management team Thus, Mit-
sunaga got wind of impending problems for the next day
around 11 p m on November 9, 1986 Thereupon he
called Sylva and arranged to meet her at the base yard, 2
hours later, at 1 a m on November 10 They met there,
and in doing so checked the drivers roster to see who
was scheduled to be on sick leave, who had requested
personal days off and who had not yet called in Still be-
wildered as to what kind of problem to expect, and
having found nothing out of the ordinary, they left and
went home again
F The Events of November 10, 1986
According to Respondent Sylva determined that it
would be best to stay in close contact with the situation
Thus, in order to do so she accompanied Mitsunaga
when he opened up the Respondent's premises, as sched-
uled, at 5 30 a m on November 10, 1986 When they ar-
rived there at that time they found that Respondent's
two gates had been chained and locked Neither of them
remembered having done so Habitually the gates were
left with the locks situated so as to appear locked, de-
spite the fact that they were not They attempted to
unlock the gates with their keys, without success They
then asked an employee to lend them his bolt cutters,
only to learn that he did not have them with him As a
result, Sylva and Mitsunaga climbed the fence and went
into the base yard There they called the fire department
of the city of Honolulu to come and cut the chains, and
the fire department responded at approximately 6 30 a m
Meanwhile, Sylva had telephoned Michael Kobayashi
She learned that Kobayashi was on his way to the "big
island," the island of Hawaii, with Lawson Teshima She
then called the airlines to page either man At approxi-
mately 6 15 a m, when Mr Kobayashi arrived at the air-
port he called Sylva and was apprised of the situation
Thus, we come to the beginning of the workday with
Respondent claiming that it had no idea that a labor dis-
pute was about to take place, and that it believed that
the rumors it had heard earlier referred only to the fact
that someone intended to lock the gates, as they had 26
drivers in an attempt to force Sylva's immediate ouster, and, in further
argument, Respondent contends that the employees efforts were viola-
tive of Sec 8(b)(1)(B) of the Act
26 Obviously, to me this is too big a bite to swallow In the previous
year Respondent had carried out an extensive and costly campaign in re-
sponse to the Union's efforts to organize its employees Upon the Union
failing in the election of 1985, and a year s time having elapsed, the
Union was once again embarking on a campaign and obviously Involved
in efforts to gam majonty support I do not believe Ventura's claims that
he never passed on such viewpoints to Respondent's management, such
claims are preposterous And considering the fact that by November 10
Respondent had knowledge of a pending R case petition, a pending C
case charge, and a demand for recognition by the Union, I can only say
that, even while considering the Respondent's views of this evidence in
its most favorable light, Respondent was either remarkably naive or has
recited its views in an extremely disingenuous fashion I believe the latter
is true
DeCosta credibly testified that sometime after 6 30
a m on November 10, 1986, he spoke to Ventura, Re-
spondent's management consultant According to De-
Costa he told Ventura that employees were upset or
angry over Kahihikolo's suspension, and feared that they
might be subjected to the same sort of discipline I credit
DeCosta's testimony in this respect and his further testi-
mony that he and Ventura went on to discuss Sylva's al-
leged interrogation of employees and her favoritism of
Lackno Finally, I credit DeCosta in his testimony that
he requested recognition on behalf of the Union
For its part Respondent acknowledges that between
around 6 30 and 9 30 on the morning of November 10,
Sylva went outside Respondent's building and attempted
to learn employees' intentions In order to do so she read
statements to employees and inquired of them whether
they intended to come to work Sylva testified that when
she first went out there were many employees gathered
outside A number of these employees were merely mill-
ing around and seemed confused as to what they intend-
ed to do or why they were standing around
She stated that she went out to the group and asked a
number of employees several questions Initially she testi-
fied that she asked various employees, in turn, whether
they intended to come to work that day She acknowl-
edged that she then went on to state to them that if they
did not report to work they would be disciplined, up to
and including discharge
Later, she once again went out to the yard and asked
employees whether they were coming to work that day,
saying that, if the employees refused, she had no choice
but to hire someone to replace the employees who re-
fused to come to work 27
Still later, Sylva approached the men in the yard a
third time By her own account, this time she told the
men that Respondent had an open door policy She told
them that they could meet with Michael Kobayashi at
any time pursuant to that open door policy She went on
to tell employees that she was ordering them to return to
work and, in turn, asked each of them whether or not
they intended to come to work She went on to state to
each of them that, if they did not, she had no alternative
but to "terminate your employment" effective immedi-
ately She closed by stating that, "If you do not report to
work I will proceed to replace you with people willing
to work"
Sylva testified that she later made a fourth foray into
the Respondent's yard This time she told the employees
milling there that she was warning them that if they did
not show up for work on the following day they would
be "terminated" and Respondent would find a permanent
replacement for them
Some employees arrived for work that day, deter-
mined to enter the yard and proceed about their business,
and did so Many others, according to the general sense
of the evidence, showed up, saw that there was some
27 By this time, so Sylva testified, she had been told that some of the
Respondent s drivers had advised Respondent that they had been threat-
ened while out on the road processing, with their work There is no evi-
dence about the details of such threats and there is no evidence as to the
identity of the persons making such threats
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sort of a dispute occurring, decided to fine out the basis
of the dispute before proceeding into work, and ultimate-
ly determined not to go to work I can only conclude, as
a result, that such employees, obviously several dozen in
number, had determined to make, at least for the time
being, common cause with those employees who had
some sort of labor dispute, whether well founded or not,
with Respondent
According to Respondent Sylva received negative re-
sponses to Sylva's first entreaty from employees Tanaka,
Shnnski, George Kahoohalahala, Kaahanui, Pihana,
Canosa, and Gomes
Further, Respondent admits that Sylva received nega-
tive responses to her entreaties to return to work on her
second visit to the yard from employees Vieira, Adams,
Choao, George Kahaoochalahala, Canosa, Chai, Tanaka,
Glidden, Kahue, Nhomi, Mito, Borden, Tengan, Kane-
hailua, and Pihana As Respondent put it, many of the
men, upon being approached by Sylva, turned their
backs upon her and walked away when she tried to read
them the statement that she wished to make Sylva
claimed that she became intimidated by the employees'
"ice cold" reaction to her Thus, despite having worked
with these men for a year and a half to 2 years, she felt
afraid This fear was heightened when police officers
% who had come to the scene approached and asked her if
her car was there outside the gates, and upon being ap-
prised that it was, told her that she had better move it
because "they're talking about damaging it " 28 Accord-
ing to Sylva, when she attempted to draw one of the em-
ployees into a conversation as to why he was out there
and refusing to work, the employee simply turned his
back and refused to say anything
It is admitted that Sylva approached Jeremiah Kaa-
hanui and Daniel Pihana since they were members of the
Drivers Committee So she asked them what was going
on Kaahanui responded "Babe, I don't know what's
going on, but I can't work until I do" Pihana responded,
so Sylva testified, "I don't know" Additionally, so Sylva
testified, driver Chai told her, "I don't know what's
going on, but I'm not going to work until I do"
At this early time in the morning there was no formal
"picket line" established There were no signs showing
that the Union was promoting, sponsoring or supporting
employees in this demonstration Instead, as I view it,
there were simply several dozen employees refusing to
cross into Respondent's facility despite being threatened
with such things as "replacement," "termination," or
"discharge"
As stated in Respondent's brief, "Because no one
seemed to know why the men were refusing to work or
why [they] did not want to talk to Ms Sylva, she had no
idea what was going on and only knew that the men
were refusing to work" (Grammatical sense added )
By late that same morning, however, Respondent con-
cedes that, not only was the Union on the scene in
person, but it had also supplied employees with picket
signs which identified a labor dispute between the Union
28 The identity of anyone speaking about damaging her car, if one as-
sumes that such a statement was Indeed made, was never revealed to the
record
and Respondent Nonetheless, Respondent insists that it
had no idea that a labor dispute between it and the
Union existed Instead, so Respondent asserts, the Union
had an obligation to inform Respondent of its intentions
to strike and failing that, employees failed in a similar ob-
ligation Finally, Respondent asserts that the employees'
silence concerning the subject matter of Kahihikolo's
suspension, interrogation of employees, or the number of
authorization cards in the Union's possession belies any
claim of any legitimate purpose behind the employees's
refusal to come to work on November 10 or thereafter,
or in their further actions in carrying picket signs in sup-
port of the Union thereafter It is undemed that members
of Respondent's former complement of employees car-
ried picket signs identifying a labor dispute between Re-
spondent and the Union from midday November 10,
1986, forward Nonetheless, so Respondent claims, such
a labor dispute is deprived of its protected nature by
virtue of the fact that a number of employees engaged in
unprotected activities
According to Respondent in testimony which I credit,
there were occasions during which employees of Re-
spondent carried picket signs in front of Respondent's
base yard entry and exit These picket signs identified a
dispute between Respondent and the Union Additional-
ly, as had occurred earlier in the day, throughout No-
vember 10, 1986, unidentified, members of the group of
employees and/or bystanders who gathered on the morn-
ing and afternoon of November 10, and thereafter, shout-
ed to Sylva, and other members of Respondent's man-
agement team, any number of demands, some of which
were undoubtedly personally offensive For example, Re-
spondent has presented evidence, which I accept as cred-
ible, that certain unidentified employees yelled, at van-
ous times during the morning on November 10, or there-
after, words to the effect that, "Hidey, hidey, ho, the
bitch has to got," referring to Sylva Other evidence was
presented to indicate that when various members of the
board of directors or other high management officials
were present some of the employees present would yell
words indicating that they desired Sylva to be replaced,
discharged, or otherwise placed in a position where she
could not have any effect upon the employees
Generally speaking, I accept Respondent's evidence I
think that the evidence is quite persuasive that employees
did, in fact, engage in the conduct ascribed to them by
Respondent Thus, I conclude that unidentified employ-
ees called for the replacement of Sylva in a rude, even
discourteous or obscene fashion
Michael Kobayashi returned to the Respondent's
premises the following morning, November 11, 1986 He
went out to the picket line and attempted to talk to em-
ployees, to no avail, since the men would not talk or
even look at him On the evening of November 11, Ko-
bayashi called Pihana trying to find out why no one
would talk to him Pihana told him that all other em-
ployees told him that they were not to talk to Mike Ko-
bayashi Kobayashi offered to Pihana to meet with em-
ployees at a restaurant the following morning Pihana
agreed to let other employees know of Kobayashi's in-
tentions
POLYNESIAN HOSPITALITY TOURS 245
Kobayashi also telephoned an employee named Oki-
moto on the night of November 11, telling him to inform
fellow employees that he would be at the meeting at the
restaurant at "Violet's" the next morning
On November 12, Kobayashi went to the base yard
There he got what he referred to as the "cold shoulder"
from all employees involved When he went up and
down the picket line, he noticed that employees were
chanting "Don't talk to Mike, don't talk to Mike, don't
talk to Mike" Nevertheless, Kobayashi went to Violet's
restaurant around 8 a m, as he had said he would Upon
arrival at Violet's, Kobayashi noticed no employees
present there Since it was raining, he took up a station
across the road Within minutes, he noticed that Kahihi-
kolo drove up, parked, and watched from a parking spot
nearby Zippy's, located near Violet's Kahihikolo, in-
stead of attempting to meet with Kobayashi, just sat in
his car for approximately from 45 minutes to an hour
Following that, Kobayashi left, returning to the base
yard around 10 a m
When he arrived he saw that there was a team from a
local television station present to secure a news story He
noticed that employees were picketing and chanting,
"Hidey, hidey, ho, the bitch has got to go" He states
that after the television team arrived the picketers
changed their chant to, "Hidey, hidey, ho, you know she
has to gor'20
On November 12, 1986, Michael Kobayashi recalled
that DeCosta told him, on the picket line that, "Mike,
we're going to call this the Gloria strike" According to
Kobayashi, DeCosta thereafter attempted to restrain and
coerce another employee named James Taba from driv-
ing a bus out of the base yard
On November 13 or 14, 1986, Ventura reported to Mi-
chael Kobayashi about the results of a meeting he'd had
with Art Rutledge and DeCosta on November 12, 1986
As Ventura would have it, he acted solely in a private
capacity, not in any official capacity as a representative
of Respondent According to Ventura, Rutledge told
Ventura that the only way to end the strike was to
remove Sylva, reinstate the employees, and recognize the
Union Ventura, while emphasizing that he never ever
spoke for Respondent, told Rutledge that Respondent re-
fused to recognize the Union, and that Respondent
would only agree to an election Indeed, despite such
discussions, and despite the presence of DeCosta and
other union officials on the picket line, and despite picket
signs carried by employees proclaiming the Union to be
on strike, Respondent maintains that it was uncertain as
to whether or not the Union had any real role in the
"strike" According to Ventura's incredible testimony,
the Union's and Respondent's officials went back and
forth for several days as to whether or not the strike was
29 I accept this description of the events by Michael Kobayashi as gen-
erally true Michael Kobayashi was reasonably credible when It came to
ordinary descriptions of events not in dispute He seemed very well
spoken and modulated in his responses to questions which were designed,
obviously, not to provoke him However he attempted to remain silent
on sensitive points, and quibbled, equivocated, or engaged in long hesita-
tions followed either by sotto voce, hesitant answers, or by booming and
breezy answers Thus, my impression was that Michael Kobayashi was
not entirely credible
"sanctioned" or not In fact, so Respondent maintains,
the only thing that was clear to Respondent was that its
employees were remaining outside its premises and de-
manding that Sylva be removed as the operations manag-
er Additionally, Respondent maintains that its employ-
ees chanted and made offensive and vulgar statements to
and about Sylva every time they saw her 3°
Respondent Avers, and I accept as true, that the
period thereafter proved to be very stressful for Sylva,
to the extent that the combination of long hours of work
and emotional stress resulted in her bottom hp being
covered with fever blisters Thus, on November 20,
1986, Michael Kobayashi decided that it was in Sylva's
best interests to remove her from Respondent's manage-
ment team He affected this change and placed Sylva in
the sales department of Respondent's Waikiki office
Notwithstanding, picketers thereafter allegedly stated
that she was not gone far enough, and that she should be
out completely
In the days that followed those employees who re-
fused to come to work continued, generally, in their re-
fusal to speak to Sylva, Teshima, or Michael Kobayashi
Instead, they continued to press a demand, asserted on
the first day of the "stop work meeting" that Respond-
ent's board of directors meet with them
On November 17, 1986, Respondent sent letters to 38
of the persons named in paragraph 8(c) of the complaint,
in effect, confirming the words spoken by Sylva to the
persons assembled outside the Respondent's base yard on
November 10 While the documents were not identical,
the general thrust of each is to notify the affected indi-
vidual of the termination of employment status with ke-
spondent One other employee, Alfonso Bocoboc, was
sent a similar letter on November 19 The final letter was
sent to Alex Antonio on December 4, 1986 31
The Supervisory Status of Washcrew Co-Chief
Willy Kekuewa and Washcrew Co-Chief
Ricardo Fajardo
Respondent employs a crew of workers who routinely
work through the night to clean the vehicles and prepare
them for use on the following day The vehicles are then
stored on the base yard in a way which evidently re-
quires some expertise, inasmuch as they simply will not
fit unless parked exactly correctly and in the proper
order During all times relevant one shift of such em-
ployees has been headed by Ricardo Fajardo, who bears
the title of co chief washcrew, while the other shift has
been headed by Willy Kekuewa, who has an identical
• Indeed, I accept as true that certain unidentified individuals made
statements of an offensive, vulgar, and even obscene nature to and about
Sylva Whether or not such individuals who made these statements were
employees of Respondent is unknown to me I suspect that they were I
don't have any proof that they were I notice, however, that Respondent
has seized upon the possibility that they were to excuse its readiness to
blind itself to facts which would be obvious to a reasonable person
• As previously shown, I have determined that William Kaluhikolo
and Douglas Wong must be considered supervisors accordingly, I shall
disregard the letters sent to them Additionally, counsel for the General
Counsel moved at trial to amend the complaint by deleting the name of
Ricardo Fajardo, that motion was granted, and I shall disregard this
letter as well The remaining 37 names are set forth in Appendix C
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
title While It appears that the two shifts of employees
substantially overlap in working hours, it also appears
that there are numerous occasions when only one of the
two cochiefs ts present, due to the fact that their shifts
are not entirely overlapping and that each fills in for the
other on the other's days off
Unlike its position with respect to the dispatchers, Re-
spondent has consistently maintained that the washcrew
cochiefs are supervisory and should be excluded from
the unit The Regional Director's decision in 1985 so
found and concluded 32 Counsel for the General Counsel
concedes that the seven washcrew employees, together
with Kekuewa and/or Fajardo spend their 8-hour shift
performing manual labor, cleaning, gassing, and parking
buses While the washcrew itself cleans the inside and
outside of the vehicles, based upon a list which they re-
ceive from the dispatcher, Kekuewa and/or Fajardo
appear to be rovers, engaged in observing the work of
the washcrew, and parking the buses so that they are
correctly "spotted" for their intended use during the fol-
lowing day Their observation of the washcrew evident-
ly is done with an eye toward making sure that the
washcrew continues working, rather than simply goofing
around or sleeping
Kekuewa seemed to imply that the crew knew their
jobs so well that they really needed no supervision, only
an occasional reminder from him to go back to work
when he observed them goofing off or not working
properly And, all agree that Kekuewa's methods of
communication with the washcrew are somewhat less
verbal than one might expect Indeed, it appears that all
concede that Kekuewa generally communicated with the
washcrew by banging on the bus to draw the attention
to the workers and then pointing toward the job that he
thought the workers should be doing
Kekuewa conceded that following the issuance of the
decision and direction of election of the Regional Direc-
tor in 1985 Sylva met with him and told him that he was
a supervisor and that, as such, he was considered part of
management and would be subject to discipline if he
used his position as a manager to encourage the Union
Kekuewa also conceded that he once reported an inci-
dent where an employee refused to follow his directions
to Sylva, with the result that Sylva intervened and in-
structed the employee that he was reqiiired to listen to
Kekuewa, since Kekuewa was his supervisor
Based upon this evidence I conclude that Kekuewa
and Fajardo are, and in all material times have been, stat-
utory supervisors within the meaning of Section 2(11) of
the Act
Accordingly, like Kahihikolo and Wong, they were
not entitled to the protection of the Act and their au-
thorization cards cannot be counted toward demonstrat-
ing majority status on the part of the Union
32 I agree with counsel for the General Counsel's assertion that a find-
ing in a representation case that a person is a supervisor has no binding
force in a subsequent complaint case Rock Hill Telephone Co, 234 NLRB
690, 691 fn 4 (1978) Nevertheless It has some value in any recital of the
history of the position in question
G The Alleged Violations of Section 8(a)(I)
1 Sylva's interrogation of Ishii, Patlingrao,
Antonio, and Valera on October 22, 1986
The complaint, as amended, alleges that Sylva unlaw-
fully interrogated washcrew employees Ishii, Patlmgrao,
Antonio, and Valera about their union activities on Octo-
ber 22, 1986
The facts are, as partially set forth previously, that
Sylva claims that she did question these employees on
that date, but that she did so only in furtherance of an
investigation she was conducting concerning the activi-
ties of Kahihikolo She explained that this investigation
was sparked by a complaint which was initiated by
washcrew employee Ishii Thereafter, having first se-
cured legal advice, she went and started talking to mem-
bers of the washcrew She first spoke to employee Pat-
lingrao, telling him that Respondent had received an em-
ployee complaint about being forced to sign the card for
the Union She then went on and explained her under-
standing of the law to the employee before asking him,
"Were you forced to sign a card?" Sylva recalled that he
responded by denying that he had been forced, but that
he did state that when he went into the dispatch office
Kahihikolo would stop him and talk about the benefits of
belonging to a Union Sylva then asked Patlingrao
whether this had occurred during working time And re-
ceived an affirmative response She then asked for and
received a written account of Kahihikolo's activities
from Patlingrao
Sylva went on to say that she next spoke to Ronaldo
Valera At this time she was accompanied by Mitsunaga
She asked Valera exactly the same questions that she
asked Patlmgrao and advised him that she had received a
complaint from an employee who felt he had been
forced to sign a union authorization card Once more she
repeated her understanding of the law, and then asked
Valera to tell her whether or not he had been forced to
sign a card Valera responded negatively and she left
She then talked to Eric Antonio, giving him pretty
much the same information she'd given the other em-
ployees, and asking him the same question, and once
more receiving a negative response
I conclude from all this that Sylva did violate Section
8(a)(1) of the Act in each of the three instances where
she interrogated employees about whether or not the em-
ployee had been forced to sign a union authorization
card Employers are not privileged to ask employees
questions which, if answered truthfully, compel employ-
ees to reveal their sentiments concerning unionization
The question posed by Sylva could have had no other
impact upon employees Nor was it necessary, for de-
spite my finding that Kahihikolo was a supervisor and, as
a result, subject to discipline for failing to hew to the
company line, Sylva already had information volun-
teered to her by Ishii sufficient to suit her purposes And
even assuming she needed further information regarding
the alleged union activities of a supervisor, I would find
that she failed to give adequate assurances against the
possibility of retaliation, or explanations of the need for
such information to employees before interrogating them
POLYNESIAN HOSPITALITY TOURS 247
2 Sylva's interrogation of Valente on
October 31, 1986
The complaint, as amended, alleges that Sylva unlaw-
fully interrogated employees on or about October 31,
1986, concerning their union activities and sympathies
The evidence of this, entirely from Sylva's lips, was
that during the course of a job performance evaluation
with Valente, Sylva, told Valente that it had been re-
ported that several employees felt that they had been
forced to sign union authorization cards during an inci-
dent which had occurred earlier that month aboard a bus
at the 0 K Corral Sylva went on to tell Valente that,
according to her information, Valente was among those
employees forced to sign a union authorization card
Sylva denied interrogating Valente, and indicated that
it was her belief that she could merely make such a state-
ment to Valente and not be concerned that Valente
would find her statement tantamount to a question I be-
lieve that there is no other reasonable interpretation of
Sylva's words It seems to me that when one's boss,
during the course of an evaluation, comments to the
effect that one has been associated by rumor with a
cause which the boss had openly opposed, one would be
expected to respond, and admit, deny, or explain the
truth or falsity of the reports made to one's boss Thus, I
conclude that Sylva's words were tantamount to a ques-
tion, and, as such, constituted unlawful interrogation be-
cause of their tendency to compel an employee to reveal
the employee's attitude and sympathies towards union-
Ism
3 It is alleged that Sylva interrogated employee
Larry Fujihana during the course of a counseling
session on November 3, 1986
General Counsel's evidence in this regard once again
comes from the words of Sylva In this instance, howev-
er, they were written into a memo which Sylva made
concerning the meeting she conducted with Fujihana
And while a review of that memorandum does not indi-
cate forthrightly that Sylva asked Fujihana about his
union sympathies or activities, it does clearly support the
inference, which I make, that while direCting the em-
ployee's attention to Respondent's no-solicitation/no-dis-
tribution rule, and having received a denial by the em-
ployee of any wrongdoing she provoked the matter fur-
ther by instructing the employee to put it in writing if it
was a he Not surprisingly, Fujihana attempted to evade,
saying that he didn't remember At this, Sylva "refreshed
his memory" This led to Fujihana then going on recall
an occasion when Ana Othalt, the Union's representa-
tive, came to the 0 K Corral after being sent there by
Kahihikolo
In sum, I regard this as another example of the tech-
nique used in the next preceding subsection Sylva, in a
situation necessarily provoking some sense of tension
within an employee, that is, a counseling session, made a
statement indicative of management knowledge of some
conduct on the part of the employee known to be con-
trary to management's interest Being met by a denial by
the employee, Sylva persisted and invited the employee
to write down his version if her information was a he In
turn this led to the employee revealing more and more -
concerning his past activities on behalf of the Union and
his sentiments toward the Union I find such conduct co-
ercive, and violative of Section 8(a)(1) of the Act
4 Michael Kobayashi
It is alleged that Michael Kobayshi, by telephone on
the evening of November 10, and at the Respondent's fa-
cility on November 11, 1986, interrogated employees
about their union or protected concerted activities and
coerced employees by attempting to induce them to
abandon their statutory right to engage in union or pro-
tected concerted activities
Kobayashi admittedly called employee Pihana during
the evening of November 10 He started out the conver-
sation by asking what was going on and hen told Pihana
to come back to work Kobayashi recalled that Pihana
Responded that the employees were declining to come to
work because of Sylva, that they wanted her "out" Ko-
bayashi then recalled that he went on to say to Pihana
that he should come back to work and they would talk
about it Pihana responded that he couldn't do that Ko-
bayashi went on then to ask Pihana to do him a favor,
and get everyone to come and see him or try to get ev-
eryone to talk to him at the baseyard at 6 o'clock the fol-
lowing moining
Kobayashi also telephoned employee Bryan Okimoto
that evening Okimoto, in response to Kobayashi's in-
quiry about what was going on, stated that the employ-
ees were behaving stupidly, but that when he came by
and saw what was going on that morning he left Ko-
bayashi stated that Okimoto told him that the employees
were refusing to work because of Sylva
The next day Kobayashi went to the baseyard and at-
tempted to talk to numerous employees who were refus-
ing to work However, as he put it, everyone ignored
him, and simply looked at the ground and continued
walking, they did so all day long
I will decide this matter in connection with the follow-
ing subparagraph
5 Lawson Teshima
It is alleged that on or about various dates in Novem-
ber 1986 Lawson Teshima interrogated employees at Re-
spondent's facility concerning their union or protected
concerted activities and coerced employees by attempt-
ing to induce them to abandon their right to engage in
union or protected concerted activities
Like Michael Kobayashi, Teshima was away from the
premises during the day of November 10, but received
word of some of what was going on there Upon his
return that evening he went to the baseyard While he
was there he admittedly approached employees and
asked questions For example, he asked employee Ber-
nard Adams why the men were not back at work Wal-
lace "Bozo" Shrinski was told by Teshima that Michael
Kobayashi wished to talk to the employees individually
at a nearby restaurant name Violet's
While Respondent attempts to portray these questions
as merely those of innocent businessmen attempting to
find out what lay behind puzzling behavior by employ-
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees, I find myself unable to accept this argument Of
course, it must be granted that Respondent had no ex-
pectation that November 10 would witness such a labor
disruption Yet, the very fact of its occurrence, preceded,
as previously demonstrated, by weeks of activities such
as the filing of a representation case petition, the filing of
an unfair labor practice charge, the conduct of meetings
by management to discuss employees gripes and con-
cerns, and the issuance of a disciplinary suspension to
one whom I have found to be a statutory supervisor, as
well as a warning of possible discharge (though it was
denominated as a counseling) to another employee, could
lead only an extraordinarily stupid employer to so totally
discount the possibility that employees might be acting in
concert Clearly Michael Kobayashi is not stupid Nor
do I accept that either he, Ventura, or even Sylva were
still at sea concerning the bare possibility that employee
might be engaging in union and/or protected concerted
activities by, at the very latest, late in the morning of
November 10 For it is conceded by Respondent that at
that time picket signs appeared asserting that the employ-
ees were engaging in a strike, and that they were doing
so in connection with the Union Thus, notwithstanding
Ventura's efforts to avoid learning the obvious, I con-
clude that officials of Respondent had very little reason
to doubt that its employees were engaged in union activi-
ties by the evening of November 10
Thus, the attempts to contact such employees directly
by phone, or by approaching them upon the picket line
inquiring as to their purpose in being on a picket line and
inviting them to came back to work and talk things over
are seen by me as attempts to avoid the possibility of
having to deal with the Union
Certainly at that point Respondent was under no obli-
gation to recognize the Union But neither was it free to
pry away the Union's supporters one-by-one by ap-
proaching them directly, either in person or by phone,
and inviting them back to work to talk things over
In reaching this conclusion, it must borne in mind that
all employees on the picket line had been advised repeat-
edly earlier in the day that they were "subject to dis-
charge," that they were "discharged," and that they
were "terminated" Thus, the odor of coercion in the air
was not subtle Instead, summarizing its bluntness, em-
ployees, approached by Michael Kobayashi or Lawson
Teshima on an individual basis, and invited to return to
work, might escape the consequences of the pronounce-
ments made by Sylva earlier that day I believe that any
reasonable employee would have been subjected to a
strongly coercive invitation to abandon legal activities,
i e, withholding services as an employee in concert with
other employees in order to protest working conditions,
or to make common cause with employees who were
making such a protest, or in order to demonstrate sup-
port for the Union Accordingly, I find that both Mi-
chael Kobayashi and Lawson Teshima violated Section
8(a)(1) of the Act by approaching employees and, under
the guise of merely finding out what was going on, inter-
rogating them in a way well calculated to draw out em-
ployees as to their union sentiments and to induce them
coercively to abandon their support for the Union or
their activities in concert with other employees
I cannot agree with Respondent's argument that in
contacting members of the Drivers Committee, or in
speaking to employees on the picket line, it was merely
conveying an implicit unconditional offer of reinstate-
ment Nor can I agree that no one from management
ever told employees they could not come back to their
same jobs, seniority, or rate of pay As previously noted,
and renoted, large numbers of employees had been told
on the morning of November 10 that they were subject
to permanent replacement, that they were discharged,
that they were terminated, any of which might well give
employees the exact opposite idea from that which Re-
spondent now contends it was seeking to convey And
all of which would clearly distinguish this case from the
case cited by Respondent in an attempt to demonstrate
that valid offers of unconditional reinstatement were
made in an atmosphere free of coercion Not only do I
not find the atmosphere to have been free of coercion,
neither can I find that there were any unconditional
offers of reinstatement Instead, employees were invited
to return to work and talk it over No assurances were
offered No remedies were provided for the unfair labor
practices previously noted, and no disclaimers were en-
tered by Respondent By all that appears to me, employ-
ees would simply have been compelled to give up their
lawful right to engage in union and/or protected con-
certed activities, return to work, and take their chances
H The Alleged Violations of Section 8(a)(3)
1 William Kahihikolo
As I have previously found, I feel compelled by the
evidence to conclude that Kahiliikolo was a statutory su-
pervisor Thus, he is not entitled to the protections of the
Act, and Respondent is entitled to rely upon his loyalty
and adherence to its stated policies Here, as previously
noted, Respondent had a stated policy of spending sub-
stantial sums of money to prevent a union from gaining
representation rights for its employees For while man-
agement officials were prone to point out to the individ-
ual employees from time to time that employees were
free to do as they wished, it is also clear that employees
were told that management was opposed to the Union,
and that it had spent $70,000 to prevent the Union's gain-
ing the right to represent the employees dunng the pre-
vious year Respondent's actions bespoke, in numerous
ways, its animus toward the Union In my opinion it
would have required a particularly insensitive employee
to have that conclusion escape him
When Kahihikolo engaged in the activity of solicita-
tion on behalf of the Union, and of going further and dis-
tributing authorization cards and collecting them on
behalf of the Union, he clearly, if unknowingly, opened
himself up to lawful discipline by his employer Thus,
while it does appear that he was subjected to disparate
treatment in the application of the no-solicitation/no-dis-
tribution rule, and that had he been an employee rather
than a supervisor, that a different result would follow,
nevertheless I must conclude that the disciplinary action
handed out to Kahihikolo was privileged by virtue of his
supervisory status
POLYNESIAN HOSPITALITY TOURS 249
2 Sylva's interrogation of Fujihana
Sylva's interrogation of Fujihana has been previously
discussed and found to ha■/e been violative of Section
8(a)(1) of the Act
Additionally, counsel for the General Counsel alleges
that it coincided with the issuance of a letter of warning
to Fujihana stemming from Respondent's disparate and
discriminatory of a no-solicitation/no-distribution rule, in
violation of Section 8(a)(3) of the Act 33
Respondent's rule concerning solicitation or distnbu-
tion read as follows
No solicitation or distribution of any kind by em-
ployees will be permitted during work time or in
work areas "Work time" for the purposes of this
provision means time spent in performance of an
employee's job duties and does not include meal pe-
riods "Work areas" for the purposes of this provi-
sion means areas where job duties are performed
and does not include such places as restrooms or
hallways Nonemployees solicitation or distribution
at any time anywhere on company property
This rule applies to every kind of solicitation or
distribution, including fundraising efforts for
schools, societies, lodges, political candidates, and
labor organizations Violations of this rule should be
immediately reported to the department head or to
the employee's supervisor
The sole exception to this rule is for the annual
Aloha United Way campaign
Counsel for the General Counsel does not maintain
that the rule is facially invalid 34 Instead, so she main-
tains, it was disparately applied against both Fujihana
and Kahihikolo Because of my finding that Kahihikolo
was subject to Respondent's discipline by virtue of his
supervisory status I must enter the further finding and
order that allegations pertaining to discipline of Kahihi-
kolo stemming from any alleged disparate application of
the rule should be dismissed
However, an opposite result follows for Fujihana, an
admitted employee There is no question that Fujihana
was disciplined because he boarded a bus waiting at the
0 K Corral for further assignment On that bus were
other drivers and employees of Respondent, similarly
awaiting assignments Sylva admitted that there were no
conditions set upon what employees on that bus could
talk about while they awaited further instruction, or to
go to work Instead, one driver monitored the radio
33 While It is true that the letter issued to Fujihana was labeled as a
' counseling,' it is equally true that the body of the letter draws to a con-
clusion that Fujihana had engaged in the misconduct of violating Re-
spondent's no-solicitation/no-distribution rule, and that, because thereof,
he was being Issued a formal written warning that subjected him, upon
any future violation, to immediate discharge In my opinion this can only
be viewed as a disciplinary activity on the part of Respondent, as ap-
posed to mere counseling As counsel for the General Counsel points out,
the effect of such a letter was to bypass Respondent's own rules for pro-
gressive discipline, and to immediately make Fujihana subject to a strong-
er penalty for any future infraction Since that penalty was expressly
stated to Include possible discharge I cannot agree with Respondent's po-
sition that no discipline was Involved
34 See Our Way Inc. 268 NLRB 394 (1983)
which would have been used to communicate with all of
them had each person remained in his own bus Yet, be-
cause Fujihana had boarded the bus and therein talked to
other employees about the merits of signing a union au-
thorization card, he was subjected to discipline Adding
insult to injury, Fujihana's admitted further "wrongdo-
ing" in distributing betting slips, a violation of another
the Respondent's rules was evidently condoned, for it
was nowhere set forth as a reason for the warning issued
to him Instead, Sylva acknowledged that Fujihana was
issued the letter of counseling, which I have found to be
a warning, only because of his attempts to "tongue lash"
other employees Into signing union cards at the time he
boarded the bus at the 0 K Corral 35
Thus, I have no doubt in concluding that Fujihana's
letter of warning was issued based upon a disparate ap-
plication of the rule 36 Thus, I shall require that Re-
spondent cease and desist from enforcing its no-
solicitation/no-distribution rule in a disparate or discrimi-
natory fashion, remove the letter of warning from Fuji-
hana's personnel files, and assure him that it will not be
used against him in the future
3 The mass discharge of November 10
The facts pertaining to this portion of my conclusions
are set forth in detail elsewhere As I have found, there
is ample evidence in this record to sustain a conclusion,
which I make, that employees were engaged in union
and/or protected concerted activities when they engaged
in a "stop work" meeting on the morning of November
10, 1986 And while I know of no requirement, as Re-
spondent suggests there is, that employees give notice of
their intention to engage in protected, concerted or
union activities, I must say that it is quite evident, based
upon a review of the events leading up to November 10,
that employees were acting in concert to protest work-
ing conditions, and also to demonstrate support for the
Union As noted earlier, there were a series of meetings
between representatives of the Union and Respondent
having to do with questions surrounding the Union's
effort to organize Respondent's employees An unfair
labor practice charge had been filed by the Union on
behalf of an individual whose supervisor status was sub-
sequently placed into question, which, in an exceedingly
close call, I have found in favor of Respondent Employ-
ees had conveyed to various management officials and
members of the board of directors their displeasure with
certain of Respondent's personnel practices, so much so
35 Sylva lamely sought to distinguish the two types of conduct, and
claimed that Fujihana was not disciplined because of the betting slips, by
virtue of the fact that she had never seen them Yet, I must ask, what
further proof did she need' Fujihana admitted to her that he had been
distributing betting slips for football games
36 My finding of disparate application is based upon what other types
of conversation were permitted within the buses as they awaited assign-
ments at the 0 K Corral It is not based on the various and sundry In-
stances of commercial activity at Respondent's premises, all of which had
to do with the attempts to demonstrate that Kahilukolo was subjected to
illegal discipline by virtue of disparate application of the rule In light of
the fact that I have been compelled to dismiss those portions of the com-
plaint having to do with Kaluhlkolo by virtue of his supervisory status I
have made no findings with respect to whether or not the rule was en-
forced disparately in connection with those commercial activities
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that a member of the board of directors, an elder
member of Michael Kobayashi's family, had instructed
him to make some changes in the management structure
of Respondent Employees were called in and warned
about engaging in distribution or solicitation, and other
employees were questioned about their activities and
sympathies
As a result, I do not find it difficult to believe that em-
ployees became impatient and took matters into their
own hands on November 10 That the Union was itself
taken aback, and surprised, seems to me to be of no
moment The actions of employees were equally protect-
ed with or without the Union The employees were
acting in concert to protest, and seek redress of, com-
plaints about certain of their wages, hours, and working
conditions
True enough, it appears that many of the employees
had little or no prior knowledge of the "stop work"
meeting Nevertheless, when they chose to join fellow
employees and make common cause with them they
placed themselves within the protective cover of con-
certed activities And if the Union was caught off guard,
and even if one accepts (which I do not) the alleged evi-
dence that it disavowed sanctioning of the employees
"stop work" meeting, the Union's position quickly
changed For it was only about 5 hours after the "stop
work" meeting began that the Union showed up and dis-
tributed picket signs identifying itself with the "stop
work" meeting, or strike, and helped with its organiza-
tion
While I can appreciate Respondent's desire to avoid
somehow inadvertently granting recognition to the
Union I cannot go further, and agree with Respondent's
position that the activities of employees were not pro-
tected from their outset on November 10 Thus, it seems
to me so obvious as to need no discussion that when
Sylva told employees that if they refused to return to
work they were terminated Respondent violated Section
8(a)(3) as to all employees affected My conclusion re-
mains the same whether the employee was merely within
hearing range, or had her remarks addressed to him/her
face to face, or who heard of her remarks and still chose
to engage in protected concerted or union activities I
conclude that all 36 employees who received letters of
termination several days later were discharged illegally,
on account of their having engaged in union and/or pro-
tected concerted activities, all in violation of Section
8(a)(3) of the Act The names of these employees are as
set forth in Appendix C hereto This list, of course, con-
forms with the allegation of the complaint, aside from
the deletion of three found to be supervisors, and one
person (also a supervisor) whose name was amended out
during the course of the trial
I reject Respondent's argument that its letters sent on
and after November 17 notifying employees of their ter-
mination, should be found to have converted an unfair
labor practice strike into an economic strike, and to have
constituted offers of unconditional reinstatement, result-
ing in the tolling of the backpay obligation I simply read
the letters with far different eyes than Respondent's
counsel No matter how I read the letters I find no offers
of reinstatement set forth therein, and it strains credulity
to believe that the argument is seriously advanced that
these letters were sent out in an effort to provide em-
ployees with reassurance that Respondent intended to
honor all applicable laws To the contrary, in my opinion
the letters had the natural and intended effect of rein-
forcing and ratifying the illegal discharges carried aut by
Sylva on November 10
I The Alleged Violation of Section 8(a)(5) of the Act
As previously set forth herein the parties have stipulat-
ed to the appropriate bargaining unit (see sec III, B)
Additionally, I have found that a demand for recognition
was made by the Union in a proper fashion by the
Union's agent, Kellogg, at the Board's offices, while
meeting there with Respondent's officials at the prehear-
ing conference for the representation case I have found
that DeCosta repeated this demand to Ventura on No-
vember 10 Thus, given the massive and serious unfair
labor practices previously found, it would normally
appear that a case such as this would warrant the imposi-
tion of a bargaining order, since the severity and breadth
of the unfair labor practices make, in my opinion the
holding of a fair election exceptionally difficult, if not
impossible
However, the result does not follow in this case, be-
cause a bargaining order cannot be imposed absent a
showing that the labor organization involved once repre-
sented an uncoerced majority of the employees in the af-
fected unit at the time that an appropriate demand for
recognition was made
And that is plainly impossible here As previously
noted, in the demonstration of any such majority, author-
ization cards are commonly used However, they may
not be used where they have been obtained for the union
by coercive means In this case, many of the Union's cars
were obtained in just this fashion, even if unwittingly
For while it is a very close question, I have found that
Kahihikolo was a statutory supervisor at the tune he so-
licited and obtained many of the authorization cards As
set forth in the cases cited above, cards obtained by a su-
pervisor are generally said to be "tainted" Taking into
account the overall background against which Kahihi-
kolo solicited cards, including several instances where it
was later claimed, whether credibly or not, that employ-
ees feared supervisory retaliation by Kahihikolo if they
failed to sign the cards I cannot say with any assurance
that this is one of those cases where there has been suffi-
cient demonstration that the supervisory participation in
the solicitation and obtaining of authorization cards by
the union was so minimal, and demonstrably so noncoer-
cive, as to warrant such cards as the supervisory partici-
pation relates to being counted in determining whether
the Union ever reached majority status Cf Medical In-
vestors Assn, 260 NLRB 941 (1982) Thus, I conclude
that the rule applies that under no circumstances will the
board issue a nonmajority bargaining order Gourmet
Foods, 270 NLRB 578 (1984)
The parties stipulated that the appropriate unit includ-
ed 94 employees as of October 29, and 93 as of Novem-
ber 10, both of which are dates upon which I have found
that the Union demanded recognition from Respondent
' POLYNESIAN HOSPITALITY TOURS 251
(notwithstanding Ventura's incredible denials of the testi-
mony of union agents Kellogg and DeCosta) In an at-
tempt to demonstrate an authorization card majority on
either of these dates counsel for the General Counsel
placed 58 authorization cards in evidence However, it is
clear that not all of these cards can be counted Three of
them, signed by employees Kepoo, Lanosa, and Ryusaki,
were apparently validly obtained, but the employees had
left their employment with Respondent by October 29
Three others were not signed until long after October 29
or November 10, i e, those cards belonging to Danny
Pihana (signed on Christmas Day 1986), Danilo Patlin-
grao (signed on December 29, 1986), and William Ke-
kuewa (dated by the Board's time stamp in January
1987) Finally, while Kekuewa's card has been shown to
be ineffectual in demonstrating majority status because of
its timeliness, his card, together with the two cards of
Kahihikolo and Wong, must be excluded because of their
supervisory status
Thus, as I revise counsel for the General Counsel's
arithmetic I conclude that, viewing the evidence in the
light most favorable to counsel for the General Counsel's
position, the unit consisted of 91 employees as of Octo-
ber 29 and 90 employees as of November 10 Then, after
removing the eight cards mentioned above, counsel of
the General Counsel is left, at best, with a prima facie
showing of the authenticity of 50 cards in a unit of either
91 or 90 employees Therefore, order to demonstrate a
majority on either date, she would be required to show
the validity of 46 of the 50 remaining cards in evi-
dence" This she cannot do For apart from the nine
cards attacked by Respondent, mentioned below, which
were the subject of evidence from various witnesses,
only the cards of employees Pihana, Shnnski, Fujihana,
Peneku, Nhome, and Vieira have been shown to be valid
by the testimony of the employee who purportedly
placed their signatures thereon All of the remaining
cards were authenticated by the testimony Anna Othalt,
a union representative, or Kahihikolo 38 Each testified
that they had solicited the cards from employees and re-
ceived them back from the affected employee, or had re-
ceived the card under circumtances indicating that it was
valid Of this number, 17 were obtained by Kahihikolo
97 Respondent raised various questions about the cards of employees
Kale Au, Kubiak, Canoes, Pedro Valera, Ronaldo Valera, Fujihana, Ho,
Valente, and Kelly However, I am convinced on a review of the evi-
dence as a whole that in each case signatures were placed on these cards
with adequate knowledge of the consequences of doing so, and not as the
result of either coercion or misrepresentation Kubiak s testimony on the
point was shifting and inconsistent to the point of being incredible Ho's
testimony seeking to recant or attack the validity of her own card, as
well as that of Valente and Au, not only fails to show that she or the
other employees were unaware of what they were signing and its conse-
quences, but also seemed to be the product of buts against the Union
Kelly's testimony concerning his own card was obviously the product of
bias and the self interest he had in securing an advanced position with the
Respondent Fujihana's testimony, itself, answered any questions about
the validity of his card, while the testimony of Ronaldo Valera eventual-
ly convinced me that, while his understanding, and that of his father, of
the meaning of the card may have been less than ideal, It was at least
adequate to conclude that both understood the consequences in signing It
Thus, I would reject the challenges to each of these nine cards by Re-
spondent
38 Normally this method demonstrating a card's authenticity would be
sufficient See Reeves Bros, 277 NLRB 1568 fn 1(1986)
Out of that 17 only one, that of Kali Au, was subse-
quently authenticated in my opinion, by the testimony of
Ho There are 16 which, in my opinion cannot be count-
ed, due to the taint of supervisory participation in their
solicitation and collection 39
Thus counsel for the General Counsel is left with a
showing of only 34 valid cards, 12 short of the required
number to demonstrate majority status for the Union
Accordingly, I conclude and find that Respondent has
not been demonstrated to have violated Section 8(a)(5)
of the Act, and that no entry of a bargaining order is
warranted Accordingly, I shall dismiss these portions of
the complaint
J The Strike was an Unfair Labor Practice Strike
Since I have determine that among the reasons that
employees initiated the "stop work" protest on Novem-
ber 10, 1986, was their perception that an unfair labor
practice had been committed against one who has been
ultimately determined to have been a supervisor, but also
to protect certain activities by management officials
which were regarded by employees as harassment (such
as the interrogation detailed above and the disparate ap-
plication of the no-solicitation/no-distribution rule as it
peitamed to employee Fujihana), I would be inclined to
find that this strike amounted to an unfair labor practice
strike at its outset
However, if there were any doubt about the matter it
was resolved by Respondent's own actions By 10
o'clock on the morning of November 10, 1986, all of the
employees who failed to abandon their protest had been
illegally discharged in violation of Section 8(a)(3) In
light of this clear nexus between the strike or "stop
work" meeting, as well as the quick hardening of posi-
tions of the parties into a protracted labor dispute in
which the Union played an obvious part, I have no alter-
native but to label this as an unfair labor practice strike
As previously noted I have found that it was not con-
verted back by virtue of any "curing effect" in Respond-
ent's letter sent out to the affected employees on or
about November 17, 1986 As stated above, I find no
offers of unconditional reinstatement set forth in those
letters, and cannot strain hard enough to so construe
them Accordingly, I determine that the employees are,
and have been, engaged in an unfair labor practice strike,
and are entitled to the rights accruing therefrom, includ-
ing the right to an unconditional offer of reinstatement
from Respondent Abilities & Goodwill Inc , 241 NLRB
27 (1979)
K The Misconduct Issues
(1) At the trial Respondent presented evidence in an
attempt to demonstrate misconduct on the part of the
strikers away from the picket line of sufficient severity to
warrant the withholding of a bargaining order, and to
serve as a predicate for the denial of reinstatement rights
of affected employees engaging in strike misconduct In
39 These are the cards of employees Doversola, Miyasaka, Tengan,
Yeung, Choo, Crowell, Glidden, Ishii, Kanehailua, Nishiyama, Kahue,
Tamaru, McShane, Agasid, Tamaru, and Kaahantu -
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
general, this evidence consisted of a number of incidents
of violence directed toward Respondent's equipment,
with the possibility that it could also entail danger to Re-
spondent's employees who chose not to engage in the
strike or to Respondent's passengers
Such conduct obviously occurred, according to the
undisputed testimony of Michael Kobayashi, in approxi-
mately a dozen instances However, there is no instance
in which any of the perpetrators of the conduct could be
identified While I have my suspicions that certain of the
strikers may well have been involved in at least a portion
of this conduct, that suspicion is no substitute for proof
And I find no proof anywhere in the record connecting
any striker, any agent of a striker, or any representative
of the Union with such conduct away from the picket
line Accordingly, and especially in view of the fact that
no bargaining order has been entered in any event, I
reject this evidence offered by Respondent
(2) Additionally, Respondent offered a good deal of
evidence at the trial concerning alleged misconduct of its
striking employees and representatives of the Union at
the picket line While there was an isolated incident of
threats to do harm to property, including automobiles of
management officials, either the damage was unproven
or the identity of the person doing it was unproven Ac-
cordingly, I must reject this proof as well
The remainder of the proof came in an attempt by Re-
spondent not only to demonstrate that employees had
forfeited rights of reinstatement by virtue of misconduct,
but also in an attempt to demonstrate that the "stop
work" meeting and the ensuring picketing did not
amount to a protected strike In this connection Re-
spondent presented video tape, and testimony concerning
various incidents on the picket line In general, these in-
cidents all concerned what Respondent terms to be con-
duct violative of Section 8(b)(1)(b) of the Act, that is, an
attempt by employees to secure the removal of Sylva, a
collective-bargaining representative of Respondent
I accept the evidence of Respondent as demonstrating
that the employees on the picket line were not always
polite I agree with Respondent's position that certain of
the employees, though by no means all, or even a major-
ity of them, on the picket line sometimes engaged in
shouting at management officials and employees who en-
tered Respondent's premises and, in Sylva's case, there
were repeated rude and vulgar references to her as a
"bitch
Having done so, I reject Respondent's position that
this evidence demonstrates that specific strikers either
lost or forfeited their rights to reinstatement because of
proven misconduct, or that such activity changed the
nature of the employees' protests into activity which was
unprotected
I see no proof that there was any charge filed alleging
the violation of Section 8(b)(1)(b) on the part of the
Union Absent that, I know of no provision in the law
holding that an employee, as opposed to a union, may
violate Section 8(b)(1)(b) of the Act Nor has Respond-
ent pointed out any such case in its argument or brief
From all that appears, Sylva was a source of much
concern among employees Whether this was due to
sexist attitudes, as Respondent claims, or due to her al-
leged favoritism and unfair labor practice activities, as
the Union and counsel for the General Counsel claim,
seems to me to be of only tangential importance What is
important, in my opinion, is that there is no instance
where Respondent has introduced proof tending to dem-
onstrate that employees sought to have Sylva removed
as Respondent's collective-bargaining representative
To the contrary, during the course of meetings and
discussions between employees and management officials
beginning in early October, employees stated their griev-
ances against Sylva At that date no one even referred to
her removal as the collective-bargaining representative of
Respondent, and it was Respondent which, itself, inter-
jected the concept that the would be transferred to an-
other corporation owned by Respondent Weeks Later,
with several intervening unfair labor practices having
been committed by Sylva, employees were on a picket
line and had been discharged by Sylva Thus, while, as I
have stated, one must concede that employees' conduct
was somewhat rude and vulgar, it seems scarcely surpris-
ing to me that some of them became angry at her, re-
ferred to her as a "bitch," and that some of them yelled
that she should be fired (which is not, in my opinion, the
same thing as demanding her removal as collective-bar-
gaining representative)
I view the actions of the employees in this case as
being valid protests of a supervisor's illegal actions
against them Such protests, and even protests of the dis-
charge of a supervisor, have been held to be lawful and
protected Fibracan Corp, 259 NLRB 161 (1981), and
cases cited
While one can sympathize with Sylva because of the
rudeness and vulgarity demonstrated toward her, I
cannot reach the conclusion that such activity, or any
other misconduct demonstrated in this case by Respond-
ent ever reached the level that it would, in my opinion,
even come close to removing an employee from the pro-
tection of the Act For, I do not see any conduct, and
have had none called to my attention, which went
beyond the use of epithets, vulgar words, profanity,
vulgar gestures, and the like
I am mindful that the Board has restated the appropri-
ate standard for determining the reinstatement rights of
employees in strike-related misconduct Clear Pine Mold-
ings, 268 NLRB 1044 (1984) But, even under the stand-
ard announced there, I do not believe that it can be rea-
sonably concluded what the misconduct here ever rose
to a level where it could be said to have reasonably
tended to either coerce or intimidate other employees,
management officials, or nonemployees While Sylva was
undoubtedly upset over the events that were occurring, I
cannot lay all of that sufferings which she experienced at
the door of the alleged misconduct on the part of strik-
ing employees It seems reasonable to me to suppose that
the occurrence of the dispute, by itself, would have ac-
counted for a considerable portion of the stress she expe-
rienced Additionally, she had doubtlessly been notified
of management's decision to transfer her, it seems reason-
able to believe that a portion of her emotional distress
might have been caused by a sense of humiliation or re-
sentment
• POLYNESIAN HOSPITALITY TOURS 253
Summarizing, I conclude that Respondent's evidence
of misconduct, whether at or away from the picket line
has either not been demonstrated to have been carried
out by any employee or any agent of the Union, or, in
instances where carried out by employees (though for
the most part still unidentified employees) to have risen
to the level where it could be said to have reasonably
tended to interfere with and coerce those against whom
it was directed, notably Sylva Accordingly, I find that
Respondent has failed to demonstrate that employees
have forfeited their right to reinstatement, that the Union
is not entitled to representation rights if it can demon-
strate majority support, or that the activities engaged in
by employees at the picket line from and after November
10, 1986, lost their protected nature
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By interrogating employees, by threatening to dis-
charge employees, by inducing employees to abandon a
strike, by disciplining an employee for having engaged in
union or concerted, protected activity which it deemed
violative of its rule against solicitation/distribution, and
by discharging employees, Respondent have interfered
with, restrained, and coerced employees in violation of
Section 8(a)(1) and (3) of the Act
4 The strike engaged in by the employees commenc-
ing on November 10, 1986, was caused and/or prolonged
by Respondent's unlawful conduct, and thus was an
unfair labor practice strike as of November 10, 1986
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 and 7 of the act
6 The Respondent did not violate in any manner other
than as specified above 40
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, PHT, Inc , d/b/a Polynesian Hospi-
tality Tours, Honolulu, Hawaii, its officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Interrogating employees, threatening to discharge
employees, inducing employees to abandon a strike, dis-
ciplining employees for engaging in protected concerted
or union activities, or discharging employees because
said employees have engaged in union or other protected
concerted activities
40 All outstanding motions not ruled upon in the body of this decision
are hereby overruled, with the exception of the respective motions to
covrect the transcript entered by each party As to the motions to correct
the transcript I grant each party's motion
41 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
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section (7) of the Act 42
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer immediate and unconditional reinstatement to
their former positions of employment to those employees
discharged on November 10, 1986, and make them whole
for any loss of earnings suffered by reason of the unlaw-
ful discrimination against them The employees affected
are
Bernard Adams John Kanehailua
Gregona Ancheta William Kekuewa
Alex Antonio James Kusumoto
Eric Antonio Gerald Mao
Santiago Antonio Albert Moepono
Alfonso Bocoboc James Nhomi
Mark Borden Mitsuo Nishiyam
John Castello Bryan Okimoto
Joseph Chai Damlo Patlmgrao
Patrick Choo Douglas Peneku
Harold Crowell

Daniel Pihana
Juan Fangon Wallace Shnnski
Nicholas Foster Bruce Stupplebeen
Ernest Glidden Hideo Tanaka
Paul Gomes Mutsuharu Tengan
Santiago Grande Pedro Valera
Jeremiah Kaahanui Ronaldo Valera
George
Kahoohalahala Robert V tetra
Patrick Kahue
If any such employees remain on strike following the
offer of reinstatement, referred to above, Respondent
shall place the names of such persons upon a preferential
hiring list and offer them reinstatement as positions
become available under the rules generally prescribed for
defining the rights of economic strikers
(b) Post at its Honolulu, Hawaii facility copies of the
attached notice marked "Appendix A "43 Copies of the
notice on forms provided by the Regional Director for
Region 37 after being signed by Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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
such notices are not altered, defaced, or covered by any
other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps have been
taken to comply
42 I provide for a broad order herein in view of the variety and seven-
ty of the unfair labor practices committed by the Respondent, which in
my opinion demonstrate a disregard for the statutory protection afforded
employees by that Act See Ifickmott Foods, 242 NLRB 1357 (1979)
43 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT do anything which interferes with these
nghts More specifically we will not discourage member-
ship in, or activities on behalf of Hawaii Teamsters and
Allied Workers Number 996, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, or any other labor organization, by
discharging or threatening to discharge employees or
otherwise discriminating against them in their hire or
tenure of employment
WE WILL NOT interrogate employees about their own,
or other employees, union activities, leanings, or sympa-
thies
WE WILL NOT attempt to induce employees to aban-
don a strike
WE WILL NOT discriminatorily enforce a rule against
discussing the Union during working hours or work situ-
ations, and you are hereby notified that we rescind the
action we took against Larry Fujihana for having done
so, and have removed all references to such incident
from our files and have provided Larry Fujihana with
written assurances that we have done so and that this in-
cident will not be held against him in the future in any
way
WE WILL NOT in any other manner interfere with, re-
strain, or coerce any of our employees in the exercise of
the right to self-organization, to join or assist Hawaii
Teamsters and Allied Workers Number 996, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, or any other labor
organization, or to bargain collectively through repre-
sentatives of their own choice, or to engage in any other
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from
any all such activities except to the extent permitted by
Section 8(a)(3) of the Act
WE WILL offer
Bernard Adams Patrick Kahue
Gregona Ancheta John Kanehailua
Alex Antonio William Kekuewa
Eric Antonio James Kusumoto
Santiago Antonio Gerald Mito
Alfonso Bocoboc Albert Moepono
Mark Borden James Nhomi
John Castello Mitsuo Nishiyama
Joseph Chai Bryan Okimoto
Patrick Choo Darulo Patlingrao
Harold Crowell

Douglas Peneku
Juan Fangon Daniel Pihana
Nicholas Foster Wallace Shrinski
Ernest Glidden Bruce Stupplebeen
Paul Gomes Hideo Tanaka
Santiago Grande Mutsuharu Tengan
Jeremiah Kaahanui Pedro Valera
George
Kahoohalahala Ronaldo Valera
Patrick Kahue Robert Vieira
immediate, full, and unconditional reinstatement to their
former positions of employment, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and, should any such employee(s) still be par-
ticipating in a strike against us, we will, at such time as
said employee(s) choose(s) to discontinue striking, imme-
diately reinstate him/her or them, as previously set forth
WE WILL remove any references to the discharges of
the employees named above from his or her personnel
files, or any records maintained by us, and we will not
use his or her discharge or layoff as a basis for any
future personnel action against him or her, and WE WILL
provide employees with written assurance that we have
done so and that WE WILL NOT hold such actions against
them in the future
WE WILL make all the employees named above whole
for any loss of pay he or she may have suffered as a
result of our discrimination against him or her, together
with interest
PHT, INC D/B/A POLYNESIAN HOSPITAL-
ITY TOURS
APPENDIX B
Wage
Name

Classification

Rates Per
Hr
Adams, Bernard

Driver 1875
Agasid, Frederick aka
"Fred"

"Casual" Driver 7 50
Amosa, Amosa Jr Driver 5 50
Ancheta, Gregono Maintenance Man 3 80
Ano, Junko Guide *Piece-Rate
Antonio, Alex Maintenance 6 20
Antonio, Eric Washperson 3 50
Antonio, Santiago Washperson 4 15
Asato, Kay Guide Piece-Rate
Au, Kasey aka "Kale"

Driver 5 50
Bocoboc, Alfonso Washperson 3 80
Borden, Mark

Driver 9 20
Butt, Philip Coordinator 4 50
Canosa, Jose Driver 8 75
Castello, John Driver 7 50
Chai, Joseph K, II

Driver 8 75
Choo, Patnck

Driver 8 75
POLYNESIAN HOSPITALITY TOURS 255
APPENDIX B—Continued APPENDIX B—Continued
Name
,
Classification
Wage
Rates Per
,Hr
Name Classification
Wage
Rates Per
Hr
Collins, Elizabeth Coordinator 545 Spellicy, Sayoko Guide 5 25
Crowell, Harold Maintenance 5 85 Stupplebeen; Bruce K Driver 900
Danko, Dina "Casual" Guide Piece-Rate Sung, Chizuko Guide Piece-Rate
Dias, Manuel aka Tabs, James "Casual" Driver 5 50
"Maney" "Casual" Driver 5 5b Tamura, James "Casual" Driver 8 25
Doversola, Rodney Driver 7 50 Tarumi, Jeffrey Coordinator 5 25
Fangon, Juan Maintenance 9 95 Tamaru, Katsumi Driver 890
Furusawa, Minoru "Casual" Driver 5 50 Tanaka, Etta() Guide Piece-Rate
Glidden, Ernest H, Jr Driver 5 50 Tanaka, Hideo aka
Gomes, Paul Maintenance 9 55 "Gary" Driver 8 80
Grande, Santiago Washperson 3 80 Tengan, Mutsuharu Driver 900
Henry, Edward Coordinator (PCC) 927 00/mo Tsulcayama, Eiko Guide Piece-Rate
Hepa, William "Casual" Driver 5 50 Tsuruda, Clifford Airport Coordinator 5 85
Ho, Helen Driver 5 50 Valente, Elsie U Driver 5 50
Hokama, Natsuko Coordinator 1,107 00/mo Valera, Pedro Washperson 4 15
Ikezawa, Chihli.° Driver 8 75 Valera, Ronaldo Washperson 3 70
Lame, Setsuko "Casual" Guide Piece-Rate Vieira, Robert Driver 600
Ishii, Warren Washperson 3 50 Villatora, Elko Guide Piece-Rate
Kaahanui, Jeremiah aka Wada, Tadashi "Casual" Driver 8 50
"Jerry" Driver 8 75 Williams, Chiyoko Guide Piece-Rate
Kahoohalahala, George Driver 8 75 Winter, Kumiko Guide Piece-Rate
Kahue, Patrick K Driver 8 75 Yamamoto, Akenu Guide Piece-Rate
Kanehailua, John A "Casual" Driver 5 50 Yamamoto, Bessie Coordinator 675
Kelly, Cohn Driver 5 50 Yasui, Koko Guide Piece-Rate
Keolanui, Emory, Jr Driver 9 15 Yeung, Hung-Ying Driver 8 55
Kikuchi, Jenny "Casual" Driver Piece-Rate
* Piece-Rate Paid by the type of assignmentKobayashi, Tatsuyuki Driver 8 60
Kubiak, Michael Driver 8 95
Kusumoto, James Maintenance 800
Lackno, Wayne Driver 800 APPENDIX C
Lai, Jeannie Guide/Coordinator Piece-Rate Bernard Adams Patrick Kahue
Manzanillo, Perfecto
Marler, Kyoko
Washperson
"Casual" Guide
4 15
Piece-Rate Gregona Ancheta John Kanehailua
McShane, Dale Driver 8 75 Alex Antonio William Kekuewa
Mito, Gerald Driver 8 80 Eric Antonio James Kusumoto
Miyasaka, Gregg Driver 9 10 Santiago Antonio Gerald Mito
Moepono, Albert Driver 920 Alfonso Bocoboc Albert Moepono
Moon, Blue "Casual" Driver 5 50 Mark Borden James Nhonn
Monmoto, Sews Driver 8 75 John Castello Mitsuo Nishiyama
Mugiya, Kazue
Myers, Cluzuko
Nhomi, James
Guide
Coordinator
Driver
Piece-Rate
990 00/mo
900
Joseph Chai
Patrick Choo
Bryan Okimoto
Damlo Patlingrao
Nishiyama, Mitsuo Driver 905 Harold Crowell Douglas Peneku
Nonmoto, Sachiko Guide Piece-Rate Juan Fangon Daniel Pihana
Nuuhiwa, Albert Driver 9 25 Nicholas Foster Wallace Shnnski
Okimoto, Bryan Driver 8 85 Ernest Glidden Bruce Stupplebeen
pasion, Fred Washperson 3 35 Paul Gomes Hideo Tanaka
Pathngrao, Damlo
Patubo, Eugene
Peneku, Douglas K
Washperson
Driver
Driver
3 80
8 75
8 85
Santiago Grande
Jeremiah Kaahanui
Mutsuharu Tengan
Pedro Valera
Pihana, Daniel C Driver 8 75 George
Shmsato, Karl Coordinator 900 00/mo Kahoohalahala Ronaldo Valera
Shnnski, Wallace Driver 8 80 Patrick Kahue Robert Vieira