Queen Kapiolani Hotel

National Labor Relations Board - Board Decisions

Mar 9, 1995

316 N.L.R.B. 655 (N.L.R.B. 1995)

655
316 NLRB No. 109
QUEEN KAPIOLANI HOTEL
1 The judge inadvertently omitted Case 37–CA–3205 from the case
caption.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
3 We have modified the proposed Order and notice to conform to
the judge’s findings that the Respondent violated Sec. 8(a)(3) and (1)
by unlawfully warning, suspending, and effectively discharging em-
ployee John Gibbs.
4 This is the only objection before the Board.
5 The Respondent additionally argues that the Board agent failed
to follow the requirements of sec. 11318.4 of the Board’s
Casehandling Manual (Part II), Representation Proceedings, that the
ballot box be ‘‘closed and securely sealed.’’ It is well settled that
the provisions of the Casehandling Manual are not binding proce-
dural rules. Correctional Health Care Solutions, 303 NLRB 835
(1991). These provisions are merely intended to provide operational
guidance in the handling of representation cases. Solvent Services,
313 NLRB 645, 646 (1994). In any event, we agree with the judge
that the evidence clearly establishes that the ballot box was securely
sealed by the Board agent.
6 Excelsior Underwear, 156 NLRB 1236 (1966).
7 The ballot box itself (R. Exh. 44) was lost in the postal system
after it was mailed from the Division of Judges’ office in San Fran-
cisco, California, on August 23, 1994, to the Board’s office in
Washington, D.C. Thus, on October 6, 1994, wrappings from the ex-
hibit were returned to the Judges’ office with the stamped notation:
‘‘return to sender for replacement of contents received without
contents due to poor sealing and/or packaging by mailer.’’
Although we were unable to examine the ballot box itself, we find
that other record evidence, including extensive testimony and de-
tailed photographs of the box, adequately depict the condition of the
box at the time of the election.
Sports Shinko (Waikiki) Corporation, d/b/a Queen
Kapiolani Hotel and Hotel Employees & Res-
taurant Employees’ Union, Local 5, AFL–CIO.
Cases 37–CA–2972, 37–CA–2973, 37–CA–2993,
37–CA–3205,1 and 37–RC–3084
March 9, 1995
DECISION, ORDER, AND DIRECTION
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On August 23, 1994, Administrative Law Judge
Frederick C. Herzog issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
The Respondent excepts to the judge’s recommenda-
tion to overrule its election Objection 5.4 The Re-
spondent argues, among other things, that the Board
agent failed to seal completely every edge of the ballot
box, thereby impugning the integrity of the election
process and requiring a new election.5 We disagree.
The Board agent conducting the April 10, 1991 elec-
tion testified that he tightly taped the ballot box. The
box was taped in the presence of the parties’ election
observers, and neither observer claimed that it was in-
adequately sealed. Once the polls opened, the ballot
box was visible to the observers throughout the split-
session election. Between sessions, the box was at all
times in the Board agent’s exclusive possession. There
is no allegation or evidence that anyone tampered with
the ballot box. Indeed, the total number of ballots and
challenged ballot envelopes retrieved from the ballot
box equaled the number of individuals who voted, as
shown by names that the election observers checked on
the Excelsior list.6 Finally, the judge, who scrutinized
the box, concluded that it was securely taped, finding
that there was ‘‘simply no opening. There [was] mere-
ly a line where two pieces of cardboard join tightly
. . . [to] . . . form a ‘seal.’’’7
In these circumstances, and for the additional rea-
sons cited by the judge, we find that the evidence fails
to establish that the manner in which the ballot box
was sealed compromised the integrity of the election.
Accordingly, we overrule Respondent’s Objection 5.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sports
Shinko (Waikiki) Corporation, d/b/a Queen Kapiolani
Hotel, Honolulu, Hawaii, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Warning, suspending, effectively discharging,
or otherwise discriminating against employees for hav-
ing engaged in union or other protected, concerted ac-
tivities.’’
2. Substitute the following for paragraph 2(c).
3. Substitute the attached notice for that of the ad-
ministrative law judge.
‘‘(c) Remove from its files any reference to the un-
lawful warning, suspension, or effective discharge, and
notify John Gibbs in writing that this has been done
and that none of these records will ever be used
against him in any way.’’
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 20 shall, within 14 days from the date of this De-
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cision, Order, and Direction, open and count the bal-
lots of:
Saturnia Agonoy Tina Low
Carodad Aloncel Janet Moku
Federico Bagasoni June Muraoka
Shareen Bailey Narcissa Ocariza
Lynn Bautista Estrelita Palafox
Ninyo Butcher Judy Ann Rutkiewicz
Teodora Cabanizas Verona Sales
Benita Calad Jose Santiago
Walfredo Cardenas Warlita Sinco
Kay Costa Faye Takara
Jay Dolor Shane Tokunaga
George Fukunaga Ken Tomita
Yoshio Hanamoto Sofia Tongotea
Frank Hara Satusuki Toya
Phyllis Hisatake Amelia Uipi
Helene Ishizaki June Ushijuma
Simeon Kailihiwa Katherine Yonamine
Wilton Kanahele Ming Man Zhang
Peleaise Lotaki
The Regional Director shall then serve on the parties
a revised tally of ballots and issue the appropriate cer-
tification.
657QUEEN KAPIOLANI HOTEL
1 The petition was filed on February 14, 1991.
2 Sometimes also referred to as the Charging Party or the Peti-
tioner.
3 Sometimes also referred to as the Employer.
4 Sec. 8(a)(1) of the Act provides that,
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in section 7.
5 Sec. 8(a)(3) of the Act provides that,
It shall be an unfair labor practice for an employer
by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or dis-
courage membership in any labor organization.
6 Sec. 8(a)(5) of the Act provides that,
It shall be an unfair labor practice for an employer—to refuse
to bargain collectively with the representatives of his employees,
subject to the provisions of section 9(a).
7 In its answer Respondent asserted a number of affirmative de-
fenses. However, it neither argued these defenses further, nor fur-
Continued
APPENDIX A
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 pro-
tected concerted activities.
WE WILL NOT interrogate you concerning your own
or other employees’ union sympathies, activities, or
leanings.
WE WILL NOT compel you to swear on the bible that
you will vote against Hotel Employees & Restaurant
Employees’ Union, Local 5, AFL–CIO in a Board-con-
ducted election.
WE WILL NOT keep your union activities under sur-
veillance by photographing you while you are engaged
in such union activities as meeting with representatives
of the Union.
WE WILL NOT threaten that if you support a union
it could lead to the loss of your job.
WE WILL NOT threaten that if you support the Union
it may lead to the closure of our facility, thereby put-
ting you out of a job.
WE WILL NOT warn, suspend, effectively discharge,
or otherwise discipline employees because they have
engaged in activities in support of the Union, or be-
cause they have engaged in other activities protected
by the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer John Gibbs immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from
his discipline and effective discharge, less any net in-
terim earnings, plus interest.
WE WILL notify John Gibbs, in writing, that we have
removed from our files any reference to his warnings,
suspension, or effective discharge, and we will assure
him that none of these records will ever be used
against him in any way.
SPORTS SHINKO (WAIKIKI) CORPORA-
TION, D/B/A QUEEN KAPIOLANI HOTEL
Wanda Pate-Jones and Mary Ann Pacacha, Esqs., for the
General Counsel.
Jared Jossem and Gregory Sato, Esqs. (Torkildson, Katz,
Jossem, Fonseca, Jaffe, Moore & Heatherton), of Hono-
lulu, Hawaii, for the Respondent.
Randy M. Girer, Esq. (VanBourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Charging
Party/Petitioner.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in trial in Honolulu, Hawaii, on July
28–31 October 27–30 and January 26–29, 1993, and Feb-
ruary 9–10. It is based on charges and a petition for rep-
resentation election1 filed by Hotel Employees & Restaurant
Employees’ Union, Local 5, AFL–CIO (the Union or Peti-
tioner),2 against Sports Shinko (Waikiki) Corporation, d/b/a
Queen Kapiolani Hotel (Respondent or Employer),3 alleging
generally that Respondent engaged in violations of Section
8(a)(1),4 (3),5 and (5)6 of the National Labor Relations Act
(the Act), and that Respondent engaged in objectionable con-
duct affecting the results of election in Case 37–RC–3084.
These charges led to the issuance of a consolidated com-
plaint by the Regional Director for Region 20 of the National
Labor Relations Board, alleging numerous violations of Sec-
tion 8(a)(1) between October 1990 and July 1991. It also al-
leges that Section 8(a)(3) of the Act was violated by the
issuance of written warnings to employee John Gibbs on Oc-
tober 18, 1990, by suspending Gibbs on October 20, 1990,
and by placing Gibbs in on-call status and terminating Gibbs
on October 26, 1990. Counsel for the General Counsel with-
drew certain other complaint allegations during the trial.
Respondent thereafter filed a timely answer to the allega-
tions contained within the complaint, denying all wrong-
doing.7
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nished any factual support for them. Accordingly, each affirmative
defense is overruled.
8 A direct supervisor of the maids and housekeepers working in the
housekeeping department. She reports directly to Komoto.
9 Komoto reports directly to Tomita.
10 Leong reports directly to one Modi Lew, director of the food
and beverage and department, who, in turn reports directly to
Komoto and Tomita.
11 Another direct supervisor of the maids and housekeepers work-
ing in the housekeeping department.
12 Reporting directly to Komoto.
A stipulated election agreement, approved on March 8,
1991, led to an election by secret ballot conducted on April
10, 1991, by the Regional Director. Thereafter, the Regional
Director issued a Report on Objections and Determinative
Challenged Ballots, and an order consolidating cases and no-
tice of hearing in Case 37–RC–3084. In his report, the Re-
gional Director recommended that, since the challenged bal-
lots and objections raised substantial and material issues of
fact, they be consolidated with Cases 37–CA–2972, 37–CA–
2973, and 37–CA–2993 for hearing before an administrative
law judge.
After trial had begun in this matter, on November 2, 1992,
the Union filed a charge in Case 37–CA–3205. The Regional
Director issued a complaint therein on December 17, 1992.
Finding the issues in this new complaint closely related to
the issues in the consolidated complaint mentioned earlier, I
granted counsel for the General Counsel’s motion to consoli-
date on December 31, 1992.
All parties appeared at the hearing, and were given full
opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and to
file briefs. Based upon the record, my consideration of the
briefs filed by counsel for the General Counsel, counsel for
the Charging Party, and counsel for Respondent, and my ob-
servation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The consolidated complaint alleges, the answer of Re-
spondent admits, and I find that Respondent is now, and at
all times material has been, a Hawaii corporation, with an of-
fice and place of business in Honolulu, Hawaii, where it has
been engaged in the operation of a hotel, providing food and
lodging for guests; that during the 12 months preceding the
issuance of the consolidated complaint, Respondent derived
gross revenues in excess of $500,000 from the business oper-
ations just described; and that during the 12 months preced-
ing the issuance of the consolidated complaint herein Re-
spondent purchased and received at its Honolulu, Hawaii fa-
cility products, goods, and materials valued in excess of
$5000 directly from points outside the State of Hawaii.
Accordingly, I find and conclude that Respondent is now,
and at all times material has been, an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background and Labor Relations History
Prior to the incidents described in this decision, the em-
ployees at Respondent’s hotel were unrepresented. Respond-
ent has no prior record of having violated the Act.
The Hotel operated by Respondent is located in an area of
Honolulu called Waikiki, primarily frequented by tourists. It
is bounded by Kapahulu Avenue, Cartwright Road, and
Lemon Road.
Apparently during 1988 the Union began seeking author-
ization cards from the Hotel’s employees, but that particular
effort never reached the stage of an election.
Respondent, one of the larger resort and golf course devel-
opers and operators in the world, purchased the Hotel in June
1990. It hired virtually all of the former owner’s employees,
but claims that it had no knowledge of the organizational ac-
tivities during 1988 or 1989. However, it is admitted that
Sigeru Tomita, Respondent’s general manager, had been long
associated with Respondent’s predecessor.
In early April 1990, the Union again began an organizing
campaign, primarily targeting the Hotel’s housekeeping and
food and beverage departments. Ernesto Ugale was the
Union’s primary organizer at the site, and Eric Gill was the
director of organizing at the Union’s hall. Cards were se-
cured through contacts made with employees, leading to the
election mentioned above. The contacts were made in person,
by mail, by telephone, and at meetings. Beginning in June
1990, Ugale also passed out flyers at the hotel site, at the
employees’ entrance, raising issues about working conditions
and problems of the kitchen and housekeeping employees.
Ugale also made personal contacts with several employees in
April, as well as during June, July, and August.
Gill conducted meetings for employees of Respondent dur-
ing August and September 1990. The meetings were con-
ducted at the Union’s headquarters, and authorization cards
were passed out and solicited.
Employee Gibbs testified credibly that in mid-October
1990, while in the storage room at the Hotel, he heard
Yoshida tell Komoto that people were then in the Hotel’s
lobby passing out cards, and that Komoto responded that he
knew, and that he wasn’t worried because the Hotel knew
how to take care of it.
Further, Gibbs credibly testified that about a week later,
while discussing the issue of unionism generally, he told
Yoshida that if he would definitely vote for the Union.
I find, based on the above credible testimony of both
Ugale and Gibbs, which was not contradicted, that Respond-
ent could not have failed to have had knowledge of the orga-
nizational campaign, no later than mid-October 1990.
B. The Respondent’s Agents and Supervisors
At trial, Respondent amended its answer to admit that:
Estrelita Aceret, assistant executive housekeeper;8 Gaylord
Komoto, assistant general manager;9 Ryan Leong, waithelp
supervisor;10 Mitsue Stone, assistant head housekeeper;11
Merle Tokunaga, sales manager; Sigeru Tomita, General
Manager; Blane Yoshida, Bell Captain);12 and Donald
Yoshimura, Front Office Manager are supervisors within the
659QUEEN KAPIOLANI HOTEL
meaning of Section 2(11) of the Act and agents of Respond-
ent within the meaning of Section 2(13) of the Act.
C. The Issues
The primary unfair labor practice issues are whether or
not:
1. In early October 1990, Respondent, through Gaylord
Komoto, threatened employees with closure of the Hotel and
discharge if employees selected the Union as their represent-
ative.
2. In November 1990, Respondent, through Estrelita
Aceret, interrogated employees regarding their union mem-
bership, activities, and sympathies.
3. In November 1990, Respondent, through Mitsue Stone,
interrogated employees regarding union membership, activi-
ties, and sympathies, and informed employees that fellow
employees were discharged because of their union activities.
4. Between the middle of the end of March 1991, Re-
spondent, through Ryan Leong, threatened to close the res-
taurant if the employees selected the union as their bargain-
ing representative.
5. In early April 1991, Respondent, through Aceret, inter-
rogated employees, and around the same time, Aceret and/or
Stone insisted that employees swear that they would vote
against union representation.
6. In July 1992, Respondent, through Komoto, conducted
surveillance of employees’ union activities.
7. On or about October 18, 1990, Respondent, through
Yoshida, issued two written warnings to Gibbs, suspended
Gibbs on or about October 20, 1990, placed Gibbs in on-call
status, and discharged Gibbs on about October 26, 1990.
D. The Alleged Violations of Section 8(a)(1) of the Act
1.
Allegation: In early October 1990, Respondent, through
Gaylord Komoto, threatened employees with closure of the
Hotel and discharge if employees selected the Union as their
representative.
The Evidence: Employee Gibbs testified credibly that in
mid-October 1990, while in the storage room at the Hotel,
he heard Yoshida tell Komoto that people were then in the
Hotel’s lobby passing out cards. According to Gibbs, that
Komoto responded that he knew, and that he wasn’t worried
because the Hotel knew how to take care of it by closing for
renovations and then reopening, putting everybody out of a
job.
Komoto was not called to testify by Respondent.
However, Respondent asserts that I should find that the in-
cident did not occur because Yoshida testified that he was
not present when Komoto said that to him.
Conclusion: I draw a negative inference from Respond-
ent’s failure to have Komoto testify and deny that he made
the remarks attributed to him by Gibbs. General Teamsters
Local 959 (Northland Maintenance), 248 NLRB 693 (1980).
That inference is sufficient to tilt the balance in favor of
Gibbs testimony in this credibility conflict. I found that
Yoshida presented a generally poor testimonial demeanor.
Accordingly, I find and conclude that Komoto made the
remarks attributed to him by Gibbs.
I further find and conclude that those remarks were viola-
tive of Section 8(a)(1) of the Act, because they amounted to
a threat to close the facility where employees were employed
and, as a result, cause the loss of employees’ jobs. Somerset
Welding & Steel, 304 NLRB 32 (1991).
2.
Allegation: In November 1990, Respondent, through
Estrelita Aceret, interrogated employees regarding their union
membership, activities, and sympathies.
The Evidence: Narcissa Ocariza testified that a day after
she went to the Union’s headquarters to discuss the prospect
of unionism, around Thanksgiving 1991, she met with two
union officials on a street at the side of the Respondent’s
hotel. As she did so, she said, she noticed that her super-
visor, Estrelita Asceret, was watching.
Ocariza testified that the next morning she was questioned
by her supervisor during the morning’s normal briefing of
the housekeeping employees. As she testified, Asceret point-
ed to Ocariza and asked, ‘‘Narcissa, who are those people?’’
Ocariza responded, ‘‘Oh, the Local 5 people?’’ Asceret then
said, ‘‘Well, you like union. That’s it.’’ Then, so Ocariza tes-
tified, Asceret went on with the briefing.
Asceret testified in the case, but was not asked directly
about this incident. Instead, she was asked whether, in any
of her meetings with employees preceding the election she
asked them whether anyone there supported the Union. She
was also led to testify generally that she did not tell employ-
ees that if they supported the Union that they would lose
their jobs.
Conclusion: Ocariza was a clearly credible witness, and I
have no difficulty in crediting her version of the events she
described over the generalized denials of Asceret (even as
supported by the testimony of her assistant, Stone), elicited
by leading questions.
However, I find, in agreement with the argument advanced
by Respondent, that, under the standards set forth in
Rossmore House, 269 NLRB 1176 (1984), the question
posed by Asceret was simply too ambiguous to be found co-
ercive. There was no showing that Asceret had knowledge of
the identity of the officials of the Union when she asked the
question. And, by all that appears, it was Ocariza, not
Asceret, who linked the incident to the Union. Thus, when
Asceret abandoned the subject and went on with the meeting
with no rejoinder but her observation that, ‘‘[w]ell, you like
union. That’s it.’’ she seems in my opinion to have effec-
tively blunted any effort to view the incident as having been
coercive.
Accordingly, I find and conclude that the Act was not vio-
lated by the facts underlying this allegation.
3.
Allegation: In November 1990, Respondent, through
Mitsue Stone, interrogated employees regarding union mem-
bership, activities, and sympathies, and threatened employees
with discharge if they supported the Union.
The Evidence: The day following the incident mentioned
in the preceding section, Mitsue Stone, Asceret’s assistant,
was in charge of conducting the morning briefing.
According to Ocariza’s credited testimony Stone pro-
ceeded to ask her during the meeting why she liked unions.
Ocariza also testified credibly that Stone also observed that
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Notwithstanding the concession of General Counsel on brief that
she did.
14 I have not utilized the testimony, including that in her affidavit,
of employee Kim Butcher. Counsel for the General Counsel has
sought to have such evidence be the basis for a finding that Leong
made further threats. I decline to utilize that hearsay evidence as re-
quested, noting that is not reliable in my opinion, and is mere sur-
plusage in any event. I merely add in passing that I have no doubt
that, as argued by counsel for the General Counsel, Butcher was not
truthful when she denied her prior affidavit.
the Company didn’t like unions, and that an employee had
been fired because of the Union.
Employee Benita Calad testified in substantial agreement
with Ocariza, and recalled that Stone asked who among the
assembled employees liked unions. When no one answered,
Calad testified, Stone went on to explain how a janitor
named Augustin Villanueva had been fired over the Union.
Stone testified, and was led to generally deny that she ever
threatened employees by telling them that if they voted for
the union they would lose their jobs. She did not, however,
deny the interrogation attributed to her by both Ocariza and
Calad.13 In fact, it was not until she was questioned by the
Union’s counsel about some meeting at which both she and
Asceret were present (obviously not the meeting in question
here), that she denied that she told employees that Villanueva
was fired for having been involved with organizing for the
Union.
Conclusion: In light of the fact that both Ocariza and
Calad seemed to be highly credible when testifying, I have
no difficulty in crediting their accounts of these events. This
is especially true where, as here, there is no denial in the
record. Contrary to the position argued by Respondent, the
limited denial unintentionally elicited by counsel for the
Union very late in Stone’s testimony cannot be stretched to
cover the interrogation and threat attributed to her by the
credible testimonies of Ocariza and Calad.
As argued by counsel for the General Counsel, a direct
question about why she liked a union, put to an employee
in front of assembled employees as they were being briefed
concerning their day’s work assignments, and coupled with
a warning that an employee who liked a union had been
fired, cannot be viewed as anything but coercive.
I find and conclude that by these statements Respondent
violated Section 8(a)(1) of the Act, by interrogating an em-
ployee concerning her union sympathies, and threatening em-
ployees that support for the union might well lead to the loss
of their jobs.
4.
Allegation: Between the middle and the end of March
1991, Respondent, through Ryan Leong, threatened to close
the restaurant if the employees selected the Union as their
bargaining representative.
The Evidence: Russell Nakata, an employee working as a
buffet runner, testified that during the period preceding the
election, sometime within the period from March 11 to 22,
he overheard a conversation between Supervisor Ryan
Leong, and a cook, Nattie Agioli. According to Nakata,
Leong said, ‘‘[I]f the people vote for the union they’re going
to close the kitchen and everybody got to look for a job.’’
As Respondent concedes on brief, Leong did not truly
deny Nakata’s testimony during his own testimony. Instead,
so Respondent argues, I should understand Leong’s testi-
mony to be that he was merely responding to a question
from an employee (one of several such questions he recalled
having answered), and repeating what an employee had stat-
ed. Thus, since Nakata seemed not to have overheard the
prelude to Leong’s remarks, Respondent would have it that
Leong was merely doing as he was privileged to do, i.e.,
truthfully advise (an) employee(s) of what another employee
named Ken Chung had said concerning an earlier labor dis-
pute concerning a different employer.
Conclusion: Upon my observation that Nakata was a gen-
erally credible witness, and the fact that Leong did not
squarely meet or deny Nakata’s testimony, I find and con-
clude that Leong did make the remarks attributed to him by
Nakata. In so doing, he threatened that employees would lose
their jobs if they supported the Union. If, as Respondent
would have me speculate, he was simply quoting an em-
ployee, I find that the onus was upon him to make sure that
his remarks were made in a way so as to avoid misinterpreta-
tion. So far as this record shows, assuming for the sake of
argument that he was indeed merely quoting an employee,
there was not even the slightest precaution taken by Leong
to make sure that an employee overhearing what was said
would reasonably understand the views expressed to have
been, not Respondent’s, but merely those of another em-
ployee.
I find and conclude, therefore, that Leong’s statements
were violative of Section 8(a)(1) of the Act, as threatening
to put employees who supported the Union out of work.14
Where such statements contain a ‘‘prediction,’’ as here, it is
Respondent’s burden to make sure that they are based upon
objective fact, rather than the words of another employee.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
5.
Allegation: In early April 1991, Respondent, through
Aceret, interrogated employees; and around the same time,
Aceret and/or Stone insisted that employees swear that they
would vote against union representation.
The Evidence: Ricardo Sobrevilla, an employee born in
the Philippines who is fluent only in Tagalog, testified under
subpoena from counsel for the General Counsel. He was ex-
amined, in large part, through an interpreter.
The gist of his interpreted testimony is to the effect that
he recalls having signed an affidavit, or statement, for a
union official, and that, while certain portions of that state-
ment are true, other portions are not true, and were signed
by him only in an effort to get away from the union official.
Several hours of effort went into attempting to sort out just
how much Sobrevilla was having interpreted correctly for
him, just how much Sobrevilla understood without interpreta-
tion, and how Sobrevilla’s ability or willingness to recall and
recount accurately may have been affected by having been
awarded a trip to Japan by Respondent. Ultimately, I rejected
counsel for the General Counsel’s offer of his affidavit, or
statement, as ‘‘past recollection recorded’’ or as useful for
Sobrevilla’s impeachment.
Yet, it is argued here by counsel for the General Counsel
that I should accept his affidavit as substantive evidence, and
credit it over both Sobrevilla’s testimony elsewhere in this
record, and the denial of Respondent’s witnesses.
661QUEEN KAPIOLANI HOTEL
15 Certain other allegations of violations of Sec. 8(a)(3) were with-
drawn from the complaint during the trial by counsel for the General
Counsel.
For the reasons stated at trial, I decline to do so. While
I have no doubt that much of Sobrevilla’s inability to under-
stand was feigned, and that he clearly understood that his
best interests lay in pleasing his employer, I also conclude
that the record is simply inadequate to allow me to make
findings of violative conduct based on an unsworn ‘‘affida-
vit’’ executed for the Union’s representative, as to which the
witness now professes either a lack of understanding, or
complete disagreement. My reading of the record simply af-
firms my stated position at trial that Sobrevilla is utterly in-
credible as a witness, and will testify to please whoever may
seem to offer the promise of benefiting him. But, I decline
to credit anything he testified to except when it is against his
own interests, or where it is clear that he has been surprised
and simply does not understand which of several alternatives
is the most beneficial to him.
However, Sobrevilla did testify to certain conduct of Re-
spondent’s supervisors that I find to be violative. My credit-
ing of his testimony in this regard is based on the factors just
stated.
Conclusion: Sobrevilla was quite clear in his testimony
that, only a day or two preceding the election, he was called
into Stone’s office, and, while there, was told to put his
hands on the bible and swear to vote no in the election. In
light of the absolute clarity of his unwillingness to testify to
anything contrary to his employer’s interests, and the obvious
failure of Sobrevilla to comprehend the import of this testi-
mony, as distinguished from that which he gave when recant-
ing his affidavit, I fully credit his testimony in this respect.
I certainly give it much more weight than the conclusionary
denial of Stone.
I find and conclude that by such conduct Respondent vio-
lated Section 8(a)(1) of the Act.
6.
Allegation: In July 1992, Respondent, through Komoto,
conducted surveillance of employees’ union activities.
The Evidence: Around July 22, 1992, the Union’s rep-
resentative, Ugale, went to the Hotel to hand out subpoenas,
in preparation for this trial. He had two other representatives
of the Union with him. He went into an alley at the side of
the Hotel, known as Cartwright Road. The employee en-
trance is located there, and he wanted to meet the maids as
they left the premises after finishing their work around 4
p.m.
Along the side of the Hotel, where the employees’ en-
trance is located, is a sidewalk. All, or virtually all, of that
sidewalk is located within Respondent’s property line. Also
located on Respondent’s property, or so close thereto as to
be virtually indistinguishable from it, on or just beside the
sidewalk, stand a utility pole, a mail box, and a sign post
which has a ‘‘no parking’’ sign on it.
There is where Ugale and his two companions met with
employees Narcissa Ocariza and Rosita Antonio as they left
work. As they stood on or just adjacent to the sidewalk, their
attention was called to a nearby roof, which was part of the
Hotel. They observed Gaylord Komoto, the Hotel’s assistant
general manager, standing there apparently engaged in
photographing them. Evidently he used an instant camera,
because at least two pictures were seen to come out of the
camera.
Employee Antonio became frightened, covered her face,
and walked to a location where Komoto could not observe
her.
No one ever came to the union officials or the employees
and told them that they were trespassing. Ugale claimed cer-
tainty that he and the others remained off of the Hotel’s
property.
Komoto was not called to testify about this matter. I infer
therefrom, that his testimony would not have supported Re-
spondent’s argument advanced at trial, and on brief, that he
was merely innocently engaged in documenting Respondent’s
claims that the Union trespassed upon Respondent’s property.
General Teamsters Local 959, supra.
Conclusion: Based on the credible and unrefuted testi-
mony of Ugale and Ocariza, I find and conclude that
Komoto did engage in photographing employees while they
were engaged in the protected activity of meeting with offi-
cials of the Union, in preparation for the trial of this case.
I further find and conclude that by such action, Respondent
engaged in unlawful surveillance of employees’ union activi-
ties, since, apart from the bare argument that the Union was
trespassing upon Respondent’s property, the record will sup-
port no finding to justify Respondent’s actions. John
Ascuaga’s Nugget, 298 NLRB 524 (1990).
E. The Alleged Violations of Section 8(a)(3) of
the Act15
Allegation: On or about October 18, 1990, Respondent,
through Yoshida, issued two written warnings to employee
John Gibbs, suspended Gibbs on or about October 20, 1990,
placed Gibbs in on-call status, and discharged Gibbs on
about October 26, 1990. The consolidated complaints allege
that Respondent violated Section 8(a)(3) of the Act by each
of these acts.
The Evidence: In support of her prima facie case, counsel
for the General Counsel presented the testimony of the al-
leged discriminatee, John Gibbs, and a coworker, Patrick
Shaw.
Gibbs testified that he first went to work for the Hotel
about 9 years before. He worked there until his discharge on
October 26, 1990. Gibbs was rehired in July 1991.
In October 1990 he was working there as a bellman, under
the direct supervision of Blane Yoshida, the bell captain. His
duties consisted of carrying luggage for guests of the Hotel,
at a wage of $3.85 per hour. He’d also had experience in
working behind the front desk while in Respondent’s em-
ploy. While he worked uncertain hours, his shift generally
lasted from around 9 a.m. to 2 p.m.
Gibbs credibly testified that both before and after Yoshida
became a supervisor (and sometime even before Respondent
purchased the Hotel), he and Yoshida had a number of con-
versations about the subject of unions. In each instance
Gibbs recalled that he’d revealed his sympathies as being
prounion. During one of those conversations, Yoshida re-
counted to Gibbs that Tomita had told him earlier that day
that bellmen should not just stand around, but should be
‘‘doing something.’’
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Respondent attempted to prove the contrary, by showing that
Gibbs had been warned some years earlier for having eaten some
shrimp, and for having later having taken it upon himself to go into
the Respondent’s records and remove the warning. I regard the
shrimp incident as so remote as to have no practical effect upon
Gibbs record as an employee in this proceeding, and, in light of the
clear difference of opinion between the parties concerning his right
to remove the warning, as having no impact upon Gibbs’ credibility
in denying that he’d been previously disciplined.
17 This finding is based on the credited testimony of Gibbs, which
was not truly contradicted by that of Yoshimura. But, to the extent
that Yoshimura could be said to have contradicted anything stated
by either Gibbs or Shaw, I would discredit him. Yoshimura was so
entirely incredible as to make anything he stated be viewed with sus-
picion.
18 Based on the superior demeanor of Gibbs, I credit him entirely
over Yoshimura, in any recitation the events of this encounter, spe-
cifically as to what Gibbs said, and as to Yoshimura’s failure to say
anything to Gibbs except to give him permission to leave.
19 Regarding the question of whether or not Gibbs had received
permission to leave from Yoshimura, Yoshida prevaricated, hesi-
tated, and hedged his testimony. Eventually, after several tries, he
settled on a version that had Yoshimura not telling Gibbs that he
couldn’t leave for fear of being punched out. Yoshida was clearly
lying when he gave this testimony, which belatedly amended earlier
versions of the same matter.
Gibbs testified that on about October 18, 1990, about 2:10
p.m., only a few short days after he had conversations with
Yoshida in which he’d revealed his prounion sympathies, he
received two written notices of verbal warning from Yoshida
in the bell storage room, shortly after his arrival for work
around 2 p.m.
One warning was issued for ‘‘remaining behind the (front
desk) for extended amount of time after given verbal and
written instructions not to do so.’’ The other was for ‘‘leav-
ing two (2) bell carts in lobby area unattended w/out bags
after instructions not to.’’ Both warnings were signed by
Yoshida.
According to Gibbs, upon being handed the warnings, he
replied to Yoshida, ‘‘This is political. This has nothing to do
with my work habits or whatever.’’ When Yoshida asked
what he meant, Gibbs stated that the warnings were about
things that bellmen regularly did, without any discipline of
any sort.
Gibbs testified that he routinely went behind the front desk
to do such things as punch in, punch out, get coffee or water,
Xerox documents, pick up lists, and the like. Additionally, he
occasionally went there, and, if the occasion warranted it,
he’d help answer the phones.
Gibbs, after initially refusing to do so, eventually signed
receipt for both after receiving assurance that his doing so
would not constitute an admission of guilt. He also acknowl-
edged that the facts claimed by Yoshida to warrant the two
warnings were essentially true, though he denied the accusa-
tions of Respondent arising therefrom, i.e., that he’d lounged
or loitered behind the front desk, or left carts in the front
lobby unattended in any different fashion than was routinely
done. Finally, he testified credibly that he was never asked
for his version of the facts, or any explanation he might
have, before he was given the warnings.
Further, while Gibbs adhered to his view that bellmen rou-
tinely did the very things for which he was warned without
discipline, he acknowledged that the Respondent had posted
a rule against such actions by the bellmen, in the form of
a large notice which had been posted in the bell storage
room around August 15.
The notice warned that there would be no warning, but
just an automatic pink slip, if anyone sat or lounged around
the back office area.
However, so Gibbs testified, only a few days before re-
ceiving the warnings, he noted that, as he was behind the
front desk to punch in on the timeclock as he arrived for
work, everyone there was busy and that the phones were
ringing. So, being experienced in such work, he simply un-
dertook to answer four or five calls. Upon finishing, Komoto
expressly told him that it was ‘‘O.K.’’ for him to be there,
and that his help was appreciated.
Gibbs testified that he’d never before received any sort of
discipline.16 Gibbs also claimed that he’d never heard of any
other bellman being written warnings before he came to
work on October 18 and received two written warnings. He
also claimed that he was ‘‘above average’’ as a bellman,
even though he acknowledged that that fact didn’t reflect
itself in his receipt of tips from individual customers.
On the day that he was given the two warnings, Gibbs
shift was to be from 2 p.m. to ‘‘open,’’ meaning that he was
to have stayed as long as needed. However, around 6 p.m.
he sought and received permission from Yoshimura, the front
desk supervisor, to leave early, telling him that he was not
feeling well.17 Yoshimura told him he’d handle getting an-
other bellman. As he was about to leave, though, Yoshimura
asked him, ‘‘By the way, what do you have? Stomach
flu?’’18 Gibbs replied, ‘‘Donald, if you want to know the
truth, I think I have pink slip fever or flu.’’ Yoshimura made
no reply. Gibbs maintained that, whatever he told
Yoshimura, he did, in fact, feel ill and sick to his stomach,
and that his condition had been brought about by having re-
ceived the two warnings.
The next day, while Gibbs was at home, not scheduled to
work, he received a telephone call from Yoshida. Yoshida
told him that he was being suspended for 4 days, because
Yoshimura had told him that he’d walked off the job the
night before. Gibbs rejoined, ‘‘That’s a lie.’’19
Gibbs stayed home for the requisite 4 days, missing 3 days
of pay.
Upon his return, he and Yoshida talked. Yoshida told him
that he’d been changed to ‘‘casual’’ status, and could work
only when called in, and had no more benefits. Gibbs
claimed that despite his inquiries about why this was happen-
ing to him, he never was given a response. Yoshida told him
to keep his nose clean, and, in time, everything would be all
right.
Not unreasonably, Gibbs interpreted what had happened as
a ‘‘nice way of being fired.’’ So, he talked to Yoshida about
collecting unemployment compensation and a reference.
Yoshida made a phone call to recommend Gibbs for other
employment. In the end, however, Gibbs asked if Yoshida
was sure that what he was doing was legal, and stated that
he intended to find out.
Later, as Gibbs was cleaning out his locker, Yoshida came
up and asked what he was doing. Gibbs explained that he
was doing what was normal, i.e., taking all his things home.
Yoshida responded that there was no need to do that, that
he intended to put him on the schedule for the next week.
However, he did not. In fact, though Respondent hired three
663QUEEN KAPIOLANI HOTEL
20 Despite Yoshida’s belated recollection that Yoshimura had not
argued with Gibbs about punching out and leaving because
Yoshimura was afraid of being punched out, even Yoshimura never
testified that he’d felt frightened, or apprehensive that, if he at-
tempted to stop Gibbs from leaving, he’d get ‘‘punched out.’’
other bellmen in the interim, it was not until July 1991 that
Gibbs was reemployed by Respondent.
Shaw, a highly credible witness, testified that the practice
of leaving carts unattended in the Hotel’s lobby was com-
mon, and he never heard of anyone being disciplined for
having done so. Indeed, he observed that Yoshida had to
have knowledge of that practice, because from time to time,
Yoshida would ask him to remove a cart from the lobby,
with no warning ensuing. Shaw also noted that he was, him-
self, granted permission to leave early from Yoshimura, and
had received no discipline for having done so. Shaw also
knew of the new notice posted in mid-August; but routinely
thereafter, until Gibbs was ‘‘placed on on-call status’’ noted
that Gibbs (like others, including himself) went behind the
front desk, answering calls, getting coffee, or helping at the
front desk.
Yoshimura testified that on October 18, while at work, a
clerk came to him and told him that Gibbs was behind the
front desk. So, he went to Gibbs and directed him to leave,
which Gibbs did. The next morning Yoshimura told Yoshida
that Gibbs had been behind the front desk, disturbing the
work of the people there. Yoshimura incredibly testified that
Gibbs was interrupting the work of others, despite his other
testimony that he didn’t know what Gibbs was doing there.
Further, even more incredibly, Yoshimura testified that nei-
ther Gibbs nor other bellmen ever helped out behind the
desk.
Yoshimura also denied that Gibbs asked him for permis-
sion to go home on October 18, or, in fact, that Gibbs had
any conversation with him at all. He acknowledged that he
reported to Yoshida that Gibbs had simply punched out and
left, and denied that he’d ever given Gibbs explicit permis-
sion to leave. Indeed, while the record is not entirely clear
on the point, he appeared to deny that anyone ever asked his
permission to leave without him referring the person on to
Yoshida or Kimoto.20
Yoshida’s testimony contradicts that of Yoshimura, in that
he recalled that Yoshimura told him that he asked Gibbs
where he was going when he saw him punching out, and was
by Gibbs about having pink slip flu.
Yoshida testified that that felt to him like a slap in the
face, a feeling he later conveyed to Kimoto, when seeking
authorization to discipline Gibbs. Yoshida went on to de-
scribe how he attempted to implement the rule posted on Au-
gust 15 in the bellmens’ room, forbidding them to lounge or
sit behind the front desk He also described his efforts to get
Gibbs to follow the rule, and the practice Gibbs had of doing
so for awhile, only to lapse after a time.
Yoshida recounted that he reported the events to Kimoto,
who told him that they should suspend Gibbs and place him
on casual status.
Conclusions
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie show-
ing sufficient to support the inference that protected conduct
was a ‘‘motivating factor’’ in the employer’s decision.
Second, upon such a showing, the burden shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.
The United States Supreme Court approved and adopted
the Board’s Wright Line test in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
Counsel for the General Counsel must establish unlawful
motive or union animus as part of her prima facie case. If
the unlawful purpose is not present or implied, the employ-
er’s conduct does not violate the Act. Abbey Island Park
Manor, 267 NLRB 163 (1983); Howard Johnson Co., 209
NLRB 1122 (1974). The General Counsel has produced no
direct evidence that Respondent harbored any animus against
the union members. However, direct evidence of union ani-
mus is not necessary to support a finding of discrimination.
The motive may be inferred from the totality of the cir-
cumstances proved. Fluor Daniel, Inc., 311 NLRB 498
(1993); Associacion Hospital del Maestro, 291 NLRB 198,
204 (1988).
In my opinion, counsel for the General Counsel has suc-
ceeded in making out a prima facie case of disparate treat-
ment of Gibbs. That is precisely what Counsel for the Gen-
eral Counsel has shown was done in this case. The evidence
supplied by Gibbs and Shaw shows that Respondent has en-
gaged in disparate treatment of Gibbs by disciplining him for
breaking rules which are commonly broken at the facility,
and which have long been widely known to be broken by
both Respondent’s employees.
In the process, she has supplied the element of animus
necessary to complete her prima facie case of a violation of
Section 8(a)(3) of the Act.
Contrary to the position of Respondent, since Gibbs was
the only employee ever disciplined for either leaving carts in
the lobby, being behind the front desk, or for developing
‘‘pink slip’’ flu, I find and conclude that the sudden decline
in the level of tolerance for longstanding practices of em-
ployees, coinciding with the beginning of a campaign by the
Union at the Respondent’s facility, and Gibbs’ own expres-
sions of sympathy for the Union, gives rise to the inference
that Respondent intended to discriminate against Gibbs for
harboring the union sympathies he’d announced to Yoshida.
Thus, based on my findings thus far, I find and conclude
that Gibbs’ two warnings were based on discriminatory con-
siderations. I also find that Respondent has failed to over-
come counsel for the General Counsel’s prima facie case
with respect to these two warnings. Indeed, based on the
credible testimonies of both Gibbs and Shaw, I find that the
practice of going behind the front desk or of leaving carts
unattended in the lobby was widely engaged in and would
have resulted in no discipline at all absent Gibbs’ union sym-
pathies. Indeed, I find that their credible evidence establishes
that the Respondent’s stated reasons for discipline were false.
As such, I find that they masked a discriminatory intent.
All Brite Window Cleaning, 235 NLRB 596, 602 (1977).
While it does not automatically follow that all of Respond-
ent’s later actions were unlawful, such evidence raises valid
suspicions. For, if Respondent thereafter merely waited for
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Whose testimonial demeanor marked him as an utterly incred-
ible witness.
22 The stipulated unit is described as follows:
All full-time and regular part-time employees of the (Respond-
ent) including all cooks, bakers, pantry employees, kitchen util-
ity employees, cashiers, hosts/hostesses, servers, door persons,
clerks, PBX operators, bell staff, maintenance staff, painters,
utility staff, yard staff, room maids, laundry employees, and
guest service employees employed by the (Respondent) at its
150 Kapahulu Street, Waikiki, Hawaii location but excluding all
managerial employees, professional employees, confidential em-
ployees, guards and supervisors as defined in the Act.
Further, the parties stipulated that the kitchen supervisor, day, lead
cooks, and head waitresses would vote subject to challenge.
some infraction of the Respondent’s rules to serve as an ex-
cuse to discipline Gibbs, and, if in doing so, Respondent
seized upon conduct by Gibbs which it had countenanced by
others, then Respondent’s conduct should be deemed illegal.
Only if it happened that Gibbs gave Respondent a valid
opportunity to employ discipline in order to enforce good
order among its bellmen, without resort to the discriminatory
warnings issued to him, may Respondent validly assert that
as a defense to the General Counsel’s prima facie case.
This is especially true where the action taken against the
employee is based on a report by a supervisor, such as
Yoshimura,21 who was discriminatorily motivated in making
the report, in the sense that he knew full well when reporting
to Yoshida Gibbs had not been observed doing anything
wrong. Bechtel Corp., 195 NLRB 1013, 1020 (1972).
Respondent contends that the suspension of Gibbs, and his
conversion to ‘‘on call’’ status, was occasioned only by his
supervisor getting a ‘‘belly full’’ of Gibbs, and because
Gibbs falsely claimed to have become sick at work (pink slip
flu), as a means of protesting having received warning no-
tices, and because Gibbs left the job without permission.
Under normal circumstances, Respondent would find this
argument sufficient to carry the day in refuting counsel for
the General Counsel’s prima facie case. For, even though
Gibbs was, in fact, upset at having been unlawfully dis-
ciplined, I can find no warrant for his developing pink slip
flu, and using that as an excuse to leave the premises without
permission. Had he done so, I would find that he did so at
his peril, and would not find that the suspension which fol-
lowed the next day, or the de facto discharge he suffered
several days later were unlawful.
But, that’s not what happened here. Gibbs did not leave
without permission. He specifically got permission from
Yoshimura, a man who Respondent admitted at trial was
vested with authority to grant permission. And Yoshimura
gave that permission with full knowledge the Gibbs illness
was based upon pink slip flu. There is absolutely no credible
support in this record for the view that Yoshimura’s silence
following his grant of permission to Gibbs to leave, and
Gibbs followup statement about being ‘‘straight’’ and letting
him know that he had pink slip flu, was based on anything
but what he told Gibbs at the time. And what he later con-
firmed on the phone to Yoshida, i.e., he could handle things
there by himself. I base this finding specifically upon the rel-
ative credibility of Gibbs and Yoshimura; I have no doubt
at all that Gibbs is by far the more credible.
Thus, it simply is not open to question that Gibbs’ earlier
discipline, which was itself discriminatory, led directly to his
leaving the Hotel. Nor can it be argued from any credible
evidence that he left without the full and express permission
of an authorized agent of the Hotel to do so. Thus, these
findings leave the Respondent with no refutation of the Gen-
eral Counsel’s prima facie case, described above.
Accordingly, I find and conclude that by issuing warnings
to Gibbs and by suspending Gibbs, and by converting him
to ‘‘on call’’ status, with attendant loss of benefits, all as de-
scribed in the complaint, Respondent has violated Section
8(a)(3) of the Act.
IV. REPORT AND RECOMMENDATIONS ON OBJECTIONS
AND CHALLENGED BALLOTS
At the election mentioned above22 there were, according
to the tally of ballots, approximately 107 eligible voters. Of
them, 34 cast ballots for and 24 cast ballots against the
Petitioner/Union, for a total of 58 valid votes counted. Addi-
tionally, while there were no void ballots, there were 39
challenged ballots. Thus, there were a total of 97 valid votes
counted plus challenged ballots.
The Regional Director found in his report that the 39 chal-
lenged ballots raised substantial and material factual issues
which were best resolved on the basis of a hearing. Accord-
ingly, he consolidated them for hearing at the same time I
heard the issues raised by the complaints alleging the com-
mission of unfair labor practices by the Respondent.
On April 16, 1991, the Petitioner filed timely objections
to the election, alleging inter alia that the Employer engaged
in unlawful interrogation, threats, surveillance, and granting
of benefits to employees, and that the Employer reclassified
employees as ‘‘casuals’’ based on those employees’ union
activities. In his report the Regional Director found that the
allegations in the Petitioner’s objections were related to the
allegations raised in the outstanding complaints and notices
of hearing, and that they raised substantial and material
issues which could best be resolved by hearing. Accordingly,
he consolidated them for hearing before me.
On April 17, 1991, the Employer filed timely objections
to the election, alleging inter alia that the Petitioner granted
financial inducements to procure votes, engaged in unlawful
electioneering, and otherwise interfered with laboratory elec-
tion conditions. The Regional Director’s report recommended
overruling the Employer’s Objection 5, which raised issues
concerning the integrity of the Board’s election process
based on the allegation that the ballot box was not properly
sealed. The Regional Director’s report determined that the re-
maining objections filed by the Employer raised substantial
factual issues which were best resolved on the basis of sworn
testimony. Accordingly, he consolidated them for hearing be-
fore me at the same time I heard the allegations of unfair
labor practices. However, the Board, when dealing with the
Respondent’s exception to the Regional Director’s report,
found that Respondent’s Objection 5 should also be consoli-
dated for hearing with the remaining objections, challenges
and unfair labor practice allegations.
A. The Challenged Ballots
I turn now to the resolution of challenges to the ballots of
39 people who attempted to vote in the election, but whose
ballots were challenged. In these resolutions, I bear in mind
665QUEEN KAPIOLANI HOTEL
23 While there was brief mention of Tina Low during testimony
given during the second week of trial, there is clearly not enough
evidence to warrant her exclusion as a voter. In fact, it appears that
there is probably no dispute that she is an eligible voter. Thus, I find
that the challenge to her ballot should be overruled, and that her bal-
lot should be opened and counted.
that it is the party seeking to exclude an individual from vot-
ing for a collective-bargaining representative which has the
burden of establishing that an individual is, in fact, ineligible
to vote. Golden Fan Inn, 281 NLRB 226, 229–230 fn. 12
(1986).
1. Ballots challenged by the Board agent
The ballots of 9 voters were challenged by the Board
agent conducting the election on the ground that their names
were not on the list of eligible voters furnished by the Em-
ployer. Their names are Saturnina Agonoy, Shareen Bailey,
Walfredo Cardenas, Kay Costa, Jay Dolor, Phyllis Hisatake,
Simeon Kailihiwa, Tina Low,23 and Katherine Yonamine.
One of these, Kay Costa, was initially alleged to be a
discriminatee, but the allegations relative to her discrimina-
tion were withdrawn.
Counsel for the Board took no position regarding the re-
mainder of those challenged by the Board agent, except to
say that if they were, indeed, inadvertently left off of the vot-
ing list of those eligible to vote, then they should be allowed
to vote if they share a community of interest and worked the
requisite number of hours.
So far as appears from its brief, the Petitioner apparently
argues that all nine should be deemed eligible voters. But,
its brief specifically mentions only Kailihiwa, Bailey, and
Cardenas by name.
The Employer specifically concedes that Dolor and
Yonamine should be found to be eligible, but disputes that
Costa, who was laid off prior to the election, remained eligi-
ble following her layoff.
Accordingly, based on the fact that it appears that there is
no dispute regarding eight of the ballots, I find that Saturnina
Agonoy, Shareen Bailey, Walfredo Cardenas, Jay Dolor,
Phyllis Hisatake, Simeon Kailihiwa, Tina Low, and Kath-
erine Yonamine were inadvertently left off the eligibility list.
The challenges to their ballots should be overruled, and their
ballots should be opened and counted.
Costa, who had worked in the food and beverage depart-
ment as a cashier and hostess, testified credibly that when
she was initially laid off in February 1991, she was assured
that the layoff was temporary, and was occasioned only to
the downturn in business brought about by the Gulf War.
However, several days later, apparently on February 15, she
happened to again be at the Hotel, and an issue arose about
whether or not her layoff was temporary or permanent. She
credibly testified that she persisted in asserting her demand
for an answer to the question, until she was finally assured
by Gaylord Komoto, the Hotel’s assistant manager, that the
issue arose only because of a typographical error on the ter-
mination form. He had her initial its correction, to show that
the layoff was due only to a reduction in hours. It was not
stated, nor did she think to inquire about, just how much her
hours were being reduced. In fact, she credibly testified that
following this, she periodically called the Hotel to check
whether the Hotel had work for her. While Respondent does
not explicitly concede this point, it does not dispute it.
Therefore, since it clearly appears that Costa was within
the group eligible to vote, and since, in the end, her layoff
was clearly communicated to her as of a temporary nature,
i.e., a ‘‘reduction in hours’’ (despite her failure to understand
that the ‘‘reduction’’ might be to zero hours), she retained
her community of interests with the other employees. Thus,
I find no warrant for finding that the Employer has sustained
its burden of establishing that Costa no longer had a commu-
nity interest with those employees eligible to vote in the
election. Accordingly, I find that the challenge to her ballot
should be overruled, and her ballot should be opened and
counted.
2. Ballots challenged by the Petitioner
The three ballots of George Fukunaga, Yoshio Hanamoto,
and Judy Ann Rutkiewicz were challenged by the Petitioner
on the ground that they were supervisors within the meaning
of the Act. However, the challenge to the ballot of Yoshio
Hanamoto was withdrawn during the trial. Accordingly, it is
found that the challenge to the ballot of Yoshio Hanamoto
should be overruled, and his ballot should be opened and
counted.
The nine ballots of Frank Hara, Chizuko Kutaka, Janet
Moku, June Muraoka, Patrick Shaw, Faye Takara, Shane
Tokunaga, Satusuki Toya, and June Ushijuma were chal-
lenged by the Petitioner on the ground that they were casual
employees. At trial, the Petitioner’s challenges to six of these
ballots were withdrawn. Thus, the ballots of Frank Hara,
Janet Moku, June Muraoka, Faye Takara, Satusuki Toya, and
June Ushijuma are no longer in issue. Accordingly, their six
ballots should be opened and counted.
Inasmuch as the record shows that Chizuko Kutaka
worked only sporadically for the Employer, and that in more
than half the pay periods from December 1990 up to the
election he worked no hours at all, I find that Petitioner has
met its burden of showing that Kutaka no longer had a com-
munity of interest with those employees eligible to vote in
the election, and that the challenge to his ballot should be
sustained. Accordingly, his ballot should not be opened and
counted.
The ballot of Patrick Shaw was challenged by the Peti-
tioner, as a casual employee. In its brief, the Employer states
that it agrees with the Union about this ballot. Accordingly,
it is found that the challenge to the ballot of Patrick Shaw
shall be sustained, and his ballot should not be opened and
counted.
At trial, the Union stated that it wished to withdraw from
its previous agreement that Shane Tokunaga, the son of
Merle Tokunaga, the Hotel’s director of sales and administra-
tive assistant to the executive general manager. The stated
basis is that he is related to a member of management.
There is, however, no evidence that Tokunaga enjoys any
special privileges or status as a result of his relationship with
his mother. Absent such evidence, the mere fact of his rela-
tionship is insufficient to meet Petitioner’s burden of show-
ing that he should be excluded. Blue Star Ready-Mix Con-
crete Corp., 305 NLRB 429, 430 (1991). I find therefore that
the challenge to his ballot should be overruled and that his
ballot should be opened and counted.
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The ballot of Ken Tomita was challenged by Petitioner be-
cause he wae alleged to be a casual employee. Additionally,
it was asserted by Petitioner that Tomita was a relative of
management, and by virtue thereof enjoyed special status and
privileges. Gibbs testified that Tomita is the nephew of the
general manager, and, unlike other employees, is allowed to
park on the Hotel’s ramp.
The Employer claims that Tomita was a nephew of the
general manager, Sigeru Tomita. However, it also asserts that
the elder Tomita had no equity in the Hotel, and that the
younger Tomita’s status in the Bell department had no spe-
cial status attached to it. Further, the evidence adduced in
support of the claim that Tomita enjoyed special status or
privileges, such as being allowed to park on the Hotel’s
ramp, all related to a period after the election, and in any
event is contradicted by credible evidence from the Employer
to the effect that Tomita was not accorded special privileges
in being rented a room at the Hotel. In fact, a number of em-
ployees rented rooms at the Hotel, apparently on the same
basis as Tomita. In light of this, I find that Petitoner has
failed to meet its burden of establishing that Tomita should
be excluded. See generally Blue Star Ready-Mix Concrete
Corp., ibid. I am not persuaded by the cases cited by
Petitoner on brief. Terraillon Corp., 280 NLRB 366 (1986),
seems to me to be precisely contrary to Petitoner’s postion,
by its adherence to the ‘‘special status’’ text for exclusion.
And, I confess my inability to see the relevance of Jennings
& Webb, Inc., 288 NLRB 682 (1988), to this issue.
I find therefore that the challenge to the ballot of Tomita
should be overruled and that his ballot should be opened and
counted.
George Fukunaga and Judy Ann Rutkiewicz were chal-
lenged by the Petitioner as supervisors, however, the
Petitioner/Union makes no argument regarding these people
in its brief. If is the burden of the party seeking to establish
the supervisory status to show the existence of that status.
Here, the evidence, essentially the testimony of Gibbs,
shows only that Fukunaga has a tile as director of guest serv-
ices, that he wears a shirt and tie rather than a uniform, thaat
he has a desk in the lobby, and once expressed regret at hav-
ing had to fire an employee named Shoko for failing to have
a green card. Also according to Gibbs, Fukunaga interviewed
employees Cila Sonoda and Cheryl Lynn when when they
were hired. However, it appears that Gibbs was speaking of
events which occurred, if at all, months after the election.
Fukunaga speaks Japanese, and could well have served as a
translator. His job is to book tours for guests, just as his ‘‘as-
sistants’’ do. Gibbs admittedly didn’t know if Fukunaga
made a recommendation after the alleged interview. The tes-
timony of Merle Tokunaga on these points was inconclusive.
The Union introduced documentary evidence at trial re-
garding the room rented to Fukunaga by Respondent at the
Hotel. However, I note that the document is dated months
after the election herein. Accordingly, I deem it unpersuasive
as to any status he occupied prior to or at the time of the
election. Additionally, The payroll change authorization,
showing his status as director of guest services, is dated well
after the date of the election. The several papers relating to
relevant time periods, or which are undated, are simply too
ambiguous to carry the burden of the Charging Party.
Fukunaga’s own testimony shows only that he provided
guidance to a fellow employee, long after the date of the
election. That he was asked to interview that employee, al-
beit long after the election, when she was hired to determine
how well she spoke Japanese, or that he performs certain ad-
ministrative functions in connection with his work, such as
making out a ‘‘schedule,’’ does not demonstrate the sort of
independent judgment needed to demonstrate status as a su-
pervisor. Blue Star Ready Mix Concrete Corp., id.
Accordingly, I conclude that the Petitioner has failed in its
burden of showing supervisory status of Fukunaga. Tucson
Gas & Electric, 241 NLRB 181 (1979). The Petitioner’s
challenge to the ballot of Fukunaga should be overruled, and
that his ballot should be opened and counted.
Regarding Rutkiewicz, the testimony of Merle Tokunaga
was inconclusive. However, according to the credible testi-
mony of Joyce Tatemichi, Rutkiewicz was merely the
reservationist for an entertainer who performed at the Hotel,
Frank Delima, and had no supervisory status. Accordingly, I
find that the Petitioner has failed to meet its burden of estab-
lishing that Rutkiewicz lacks the requisite community of in-
terest to be allowed to vote in the election. Tucson Gas &
Electric, id. Accordingly, the challenge to her ballot should
be overruled, and her ballot should be opened and counted.
3. Ballots challenged by the Employer
The 17 ballots of Carodad Aloncel, Federico Bagasoni,
Lynn Bautista, Ninyo Butcher, Teodora Cabanizas, Benita
Calad, Helene Ishizaki, Wilton Kanahele, Peleaise Lotaki,
Narcissa Ocariza, Estrelita Palafox, Verona Sales, Jose
Santiago, Warlita Sinco, Sofia Tongotea, Amelia Uipi, and
Ming Man Zhang were challenged by the Employer.
The basis of the challenge is the fact that on March 22,
1991, the Respondent/Employer sent each of them a letter,
stating as follows:
For your information and records, you are reclassi-
fied from part-time to casual status as of March 22,
1991. In accordance with our handbook, ‘‘Should an
employee change from regular full-time or regular part-
time to a casual status, he will be paid for all current
and accumulated vacation time due and will forfeit all
sick pay, medical, dental, group life insurance and other
benefits commencing on the day of the change in sta-
tus.’’ If you wish to continue medical and dental bene-
fits by paying for the premium yourself, please see at-
tached notice.
We regret that economic problems make this action
necessary.
Thus, all ballots of employees challenged by the Employer
were challenged on the basis that they were mere casual, on-
call employees. The Petitioner counters the Employer’s claim
by asserting that the Employer illegally changed the status of
all such employees during the period following the agree-
ment upon a stipulated election, and further, so the Petitioner
claims, these employees, in any event, still are shown by the
evidence to have occupied the status of regular, part-time
employees entitled to vote in the election.
The Employer asserts that its change in the status of em-
ployees was justified by economic conditions in the world,
caused by the Gulf War’s adverse effect upon tourism. That
the war, in fact, had an adverse effect was not seriously chal-
lenged, and is taken by me to be true.
667QUEEN KAPIOLANI HOTEL
The Employer further asserts that, because of the change
in the status of the affected employees, they no longer en-
joyed all the fringe benefits they’d previously enjoyed, and
which were still enjoyed by regular employees, such as
health insurance.
The testimony of Joyce Tatemichi was to the general ef-
fect that she prepared the Excelsior list for this election.
There is no dispute that the Excelsior list did include the
names of the 17 employees challenged by the Employer.
However, she also testified that she typed out a letter which
was sent to the 17 employees challenged, notifying them of
the change in their status. Additionally, she served as the
Employer’s observer at the election, and personally chal-
lenged each of the 17 ballots in question.
The Board has rather recently stated that,
[i]n determining whether or not on-call employees
should be included in the bargaining unit, the ‘‘Board
considers whether the employees perform unit work,
and those employees’ regularity of employment. . . .
[R]egularity can be satisfied when an employee has
worked a substantial number of hours within the period
of employment prior to the eligibility date. . . . Under
the Board’s long-standing and most widely used test for
voting eligibility an on-call employee is found to have
a sufficient regularity of employment to demonstrate a
community of interest with unit employees if the em-
ployee regularly averages 4 or more hours of work per
week in the last quarter prior to the eligibility
date. . . . Although no single eligibility formula must
be used in all cases, the Davison-Paxon formula [cited
herein] . . . is the one most frequently used, absent a
showing of special circumstances. [Trump Taj Mahal
Casino, 306 NLRB 294 at 295 (1992).]
Here, the records in evidence show that each of the 17 af-
fected employees met the standard set forth in Trump, id.,
i.e., working at least 4 hours per week in the last quarter
prior to the eligibility date.
The Employer argues that I should apply a different stand-
ard. Relying on older cases such as Buckley Southland Oil,
210 NLRB 1060 (1974), and Inter Continental Hotels Corp.
(Hawaii), 237 NLRB 906 (1978), the Employer argues for a
standard of a ‘‘meeting of the minds,’’ at the time of the
execution of the election stipulation. However, as I read each
of those cases, they rely upon special facts quite peculiar to
their own fact situations to reach the results which they
reached.
In Buckley, supra, the parties had specifically discussed the
inclusion or exclusion issue for seasonal employees, and had,
as a result formulated a unit description which included only
permanent employees; further, the parties had clearly agreed
to postpone the resolution of any questions which arose from
challenges in this area, because they specifically agreed prior
to the election that an employee’s ballot would not be count-
ed pending postelection procedures. Thus, the case is simply
inapposite to the issue here.
In Inter Continental, supra, the dispute did not revolve, as
it does here, around facts and circumstances which happened
after the date when the parties executed the stipulation agree-
ment. I regard that distinction as important, because in this
case I am not called on to determine whether or not the par-
ties had a meeting of the minds regarding circumstances ex-
tant at the time of the stipulation’s execution. Here, the Em-
ployer has not even asserted that any failure of the parties
minds to meet occurred until it changed the circumstances
following the execution of the stipulation.
Therefore, I am not persuaded that the cases cited by the
Employer should cause me to exclude from the balloting em-
ployees who are shown by the record to have had their status
changed only after the stipulation was executed and ap-
proved. Further, the evidence taken as a whole shows that all
or nearly all these employees were, in fact, still employed by
the Employer right up through the time of the hearing herein.
Though their fringe benefits had been changed by their
change in status seems not to me to lead to a different result.
Their community of interest remained unchanged if one is
guided by the facts which are apparent from this record, i.e.,
that the affected employees continued to work substantial
numbers of hours in the very same jobs they’d previously
worked in, and eventually were, for the most part, restored
to their old status. Compare, Pat’s Blue Ribbons & Trophies,
286 NLRB 918 (1987).
I conclude, therefore, that the Employer’s evidence has not
shown that the Trump standard of regularity set forth above
is inappropriate, or that there are any ‘‘special cir-
cumstances’’ warranting the application of a different stand-
ard.
In applying this standard to the ballots challenged by the
Employer on the basis that they were casual employees, I
find and conclude that the evidence fails to support the Em-
ployer’s contentions, and that, instead, supports my finding
that all such employees have been shown to meet the stand-
ard set forth above in Trump. Accordingly, I recommend that
all such employees ballots be found valid, and that they
should be opened and counted.
4. Summary of conclusions regarding challenged ballots
All of the nine ballots challenged by the Board should be
opened and counted.
All of the 13 ballots challenged by the Petitioner should
be opened and counted, except for the ballots of Shaw and
Kutaka, whose challenges have been sustained.
All of the 17 ballots challenged by the Employer should
be opened and counted.
The Regional Director, following the opening of the bal-
lots set forth above (and as specifically named in Appendix
B), should issue a revised tally of ballots and an appropriate
certification.
B. The Objections of the Employer
The objections of the Employer allege, and are resolved,
as follows:
1. The Petitioner, which is in control of substantial assets,
and which has established or is establishing employee wel-
fare and benefit plans for such purposes, by and through its
agent, offered and granted specific substantial financial in-
ducements to voters and others in order to obtain their sup-
port and procure votes in the election. These actions, which
amount to buying votes, included:
a. Providing valuable new benefits to voters on the
condition that they voted ‘‘yes’’ for Petitioner. This in-
cluded a promise of payment by Petitioner for post-
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
retirement medical and other benefits irrespective of the
results of bargaining, vesting or years of service. Over
50 employees of the employer are over 50 years of age
and this benefit played a substantial role in Petitioner’s
campaign.
b. Promising employees substantial, specified and
unspecified benefits for organizing the employer to be
provided by Unity Foundation, an affiliate of or plan
controlled by Petitioner, or an alter ego of Petitioner.
Because of the size and publicity of the Unity House
fund, employees would be likely to believe that it is
solely within the power of Petitioner or its officers to
grant o[r] withhold the promised benefit.
c. Providing valuable gifts, including printed T-shirts,
to employees who agreed to support and campaign for
the union on the day of the election.
Discussion: The Employer placed into evidence documents
showing that the Union here has an affiliation with an orga-
nization known as Unity House, and that Unity House has
some of the same officers as the Union. Additionally, it was
shown that the Union and Unity House have substantial as-
sets.
From this, the Employer argues that the Union engaged in
impermissible electioneering by ‘‘buying’’ votes through
such tactics as giving away cars and appliances at its annual
picnic, by giving employees T-shirts bearing the Union’s
logo or other identification of allegiance or support, and by
virtue of providing for pension, dental, health, vision, and
life insurance plans for its members. The Employer argues
that such actions have a particularly pernicious effect upon
its employees, who are said to be largely over the age of 50.
In effect, the Employer’s brief appears to concede that cur-
rent law permits the conduct of the Union, and to argue that
the law should be changed.
There is no direct evidence of any conduct by the Union
which could be said to be unlawful in this connection, such
as the granting of benefits to employees during the critical
period preceding the election. Mailing Services, Inc., 293
NLRB 565 (1989). Instead, it appears to me from all that has
been presented, that all the Union did was to publish existing
incidents of union membership or representation, as is per-
mitted. Mailing Services, id.; Dart Container of California,
277 NLRB 1369 (1985).
Accordingly, I recommend that this objection be overruled.
2. Petitioner interfered with the laboratory conditions nec-
essary for the holding of a free and fair election by inducing,
encouraging, and authorizing supervisors of the Employer to
campaign on behalf of the Union and to solicit authorizations
cards and votes on behalf of the Petitioner, and to influence
employees with Petitioner’s promises of retirement and medi-
cal benefits on the condition that they voted ‘‘yes’’ in the
election.
Discussion: The Employer presented no evidence to sup-
port this objection, and none was put forward by any other
party. Nor did it argue the matter in its brief. Accordingly,
I deem it to have been abandoned, and recommend that it
be overruled.
3. The Petitioner engaged in campaigning in the voting
area by having its election observer wear a T-shirt with Peti-
tioner’s insignia. Not only did this remind voters of the
Union’s valued gifts given to obtain support in the election,
but it further gave the impression, due to the closeness of the
observer’s large union logo to the Board agent, that the
Board was condoning prounion electioneering the voting
area.
Discussion: The Employer presented virtually no evidence
to support this objection, and none was put forward by any
other party, except for the bare fact that one of the observers
at the election wore a T-shirt which bore the Union’s logo.
Such conduct is clearly permitted by existing Board stand-
ards, since there is no reasonable basis for any potential
voter to conclude that the observer is in charge of conducting
the election. Bonanza Aluminum Corp., 300 NLRB 64
(1990).
Nor did the Employer argue this matter in its brief. Ac-
cordingly, I deem it to have been abandoned, and rec-
ommend that it be overruled.
4. Petitioner, through an authorized and vocal agent, en-
gaged in vociferous and boisterous campaigning in the voting
area while the polls were open. Despite the efforts of the
Board agent to terminate that misconduct, it had the effect
of destroying the laboratory conditions for some 15 voters
present.
Discussion: The Employer presented virtually no evidence
to support this objection, and none was put forward by any
other party. The testimony of Joyce Tatemichi to the general
effect that there was some noise for brief periods is insuffi-
cient to even raise a question concerning the proper conduct
of the election. Indeed, the clear tenor of Tatemichi’s testi-
mony is to the effect that the Board agent who conducted the
election took prompt and effective action (i.e., scolding em-
ployees), in the few and brief periods during the election’s
conduct when any employee started to interfere with the
proper conduct of the election. Nor did the Employer argue
this matter in its brief. Accordingly, I deem it to have been
abandoned and recommend that it be overruled.
5. In the conduct of the election, the integrity of the
Board’s election processes was not sufficiently safeguarded
because the ballot box was not fully sealed, and it was re-
moved from the voting area for several hours in a ‘‘split ses-
sion’’ of voting. During the election the ballot box was
placed behind the election observers so that they could not
observe whether voters were placing their ballots in the box
before exiting. Under all the surrounding facts and cir-
cumstances, no observer could know what ballots were even-
tually counted or certify to the security of the ballot box.
(Employer makes no accusation hereby that any Board agent
placed ballots in the box.)
Discussion: This objection led to the presentation of much
evidence in this trial, including the extensive testimony of
Thomas W. Cestare, the Board’s officer-in-charge of Sub-
region 37, the Honolulu office of the Board, as well as the
person who conducted the election. While I found the testi-
mony both interesting and credible, I see no need to detail
it here. For, as is made clear by the Employer’s brief, it has
no quarrel with anything said by Cestare and does not chal-
lenge his credibility. Further, the Employer makes no claim
that anything untoward actually occurred in this case. It’s
claim is that proper procedures weren’t followed, and that
some improper conduct, such as putting false ballots into the
ballot box, or removing them, could have occurred as a result
of the failure to follow proper procedures.
669QUEEN KAPIOLANI HOTEL
Regarding the issue of the ballot box being placed behind
the observers, or the Board agent, the testimony of Joyce
Tatemichi and Cestare showed clearly that the box was at no
time behind the observers. At worst, it was at their side, at
the limit of their range of peripheral vision, and entirely visi-
ble with even a slight turn of the head. There is simply no
credible evidence that the box was ever out of the absolute
control of the observers and the Board agent during the con-
duct of the election. As admitted by the Employer’s observer
at the election, Tatemichi, she could see the box about 8–
10 feet from her without even the necessity of turning her
body.
The balloting in this election took place during two ses-
sions. The box was shown to all the observers before the
first session, and was then assembled by Cestare by taping
its ends into place. The box, an ordinary cardboard box, is
of the sort customarily used for the conduct of elections by
the Board. It requires that it’s ends be taped shut, and that
a slit be cut in it in order to allow ballots to be inserted.
In this case, it was sealed with tape following the first bal-
loting session and taken by Cestare with him. Then, upon his
arrival back at the Hotel to conduct the second session of
balloting, each observer was given the opportunity to view
the box for evidence of tampering, and to note that the tape
which had sealed it, together with their initials, was still in
place to everyone’s satisfaction. Following this inspection,
each observer saw it unsealed, and then used to collect the
ballots cast during the second session. At the end of the sec-
ond session, the box was opened in the presence of the ob-
servers and the ballots were counted. Following the counting,
the observers signed certifications as to the fairness of the
election.
The gist of the remainder of the evidence is that Cestare
sealed the ballot box by placing masking tape along its
edges. The Employer’s objection goes to Cestare’s admitted
failure to put masking tape along the entire edge of each flap
of the box. Thus, so it is claimed, Cestare failed to follow
instructions that the ballot box by ‘‘closed and securely
sealed’’ and that it be done with ‘‘extreme care.’’
The Employer does not quarrel with the observation of
Cestare that each of the ballots was accounted for, i.e., the
precise number of ballots were found in the box when the
ballots were counted as he’d passed out to voters as they
came through the line and had their names checked off by
the observers.
In short, there is absolutely no evidence that any ballots
were cast improperly, and there is absolutely no evidence
that any ballot was taken from the box, and therefore im-
properly not counted.
Instead, the entire thrust of this objection is that there
could have been ballots put into the box or removed from
the box because of the failure to put tape along the entire
edge of each flap that was sealed.
In my opinion the objection is without merit. The box was
‘‘sealed’’ within the meaning of any reasonable interpreta-
tion. While I must concede that it may have been theoreti-
cally possible for someone, given enormous time without
interruption, to have worked and pushed and manipulated a
ballot into the areas where no tape was, it is so obviously
difficult as to be well near impossible as a practical matter.
As can be seen by observing the box, there is simply no
opening. There is merely a line where two pieces of card-
board join tightly, and in my opinion, in doing so, form a
‘‘seal.’’
The ‘‘appearance of impropriety’’ which the Employer
says should be controlling in this case is, to me, so minus-
cule and unrealistic as to be virtually invisible. To set aside
elections based on such trifles as this would effectively dis-
enfranchise many voters.
I recommend that this objection be overruled.
6. The parties and the board failed to resolve, through
preelection hearing or otherwise, a number of challenged bal-
lots known in advance of the election to exceed 25 percent
of the expected turnout, creating an atmosphere which pre-
cluded a fair election. This number of expected challenges
warranted revocation of the agreement for certification upon
consent election, because the Regional Office was well aware
of the high number of election votes to be challenged. Fail-
ure to call off the election despite contrary policy set forth
in the NLRB field operations manual was arbitrary and tends
to destroy the conditions necessary for a proper election.
Discussion: I deem this to be an administrative matter,
subject to the Board’s control through the Regional Director.
I see no warrant for me to attempt to apply the internal in-
structions and guidelines of the Board or the General Coun-
sel to the Regional Director. Accordingly, I recommend that
this objection be overruled.
7. The Petitioner, through its observer and agent, engaged
in selective challenges of employees based solely on their ex-
pected vote or prior Local 5 affiliation, so as to coerce and
intimidate these voters.
Discussion: The Employer presented no evidence to sup-
port this objection, and none was put forward by any other
party. Nor did it argue the matter in its brief. Accordingly,
I deem it to have been abandoned, and recommend that it
be overruled.
8. Petitioner, through its observer, engaged in campaigning
for Petitioner during the period between the opening of the
polls and the count of the ballots in violation of the Board’s
election standards.
Discussion: The Employer presented no evidence to sup-
port this objection, and none was put forward by any other
party. Nor did it argue the matter in its brief. Accordingly,
I deem it to have been abandoned and recommend that it be
overruled.
9. The Petitioner trespassed on employer’s premises and
engaged in unlawful recognitional picketing on the day of the
election.
Discussion: The Employer presented no evidence to sup-
port this objection, and none was put forward by any other
party. Nor did it argue the matter in its brief. Accordingly,
I deem it to have been abandoned and recommend that it be
overruled.
10. By these and other acts of interference, restraint,
and/or coercion, the Petitioner and its agents destroyed the
laboratory conditions necessary for the conduct of a free and
fair election.
Discussion: This ‘‘catch-all’’ objection had no evidence
presented to support it, and was not argued in the Employ-
er’s brief. Accordingly, I deem it to have been abandoned
and recommend that it be overruled.
Having considered each of the Employer’s objections to
conduct affecting results of election, and having found no
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
25 See Sterling Sugars, 261 NLRB 472 (1982).
26 All outstanding motions, if any, inconsistent with this rec-
ommended Order are hereby denied. If no exceptions are filed as
provided by Sec. 102.46 of the Board’s Rules and Regulations, the
merit in any of them, it is recommended that they be over-
ruled in their entirety.
C. The Objections of the Petitioner
The objections of the Petitioner allege as follows:
1. The Employer, by its agents, interrogated employees as
to their union activity.
2. The Employer, by its agents, threatened employees with
discharge for engaging in union activity by threatening to
close the operation.
3. The Employer, by it agents, engaged in surveillance of
employees’ union activity.
4. The Employer, by its agents, offered and granted out-
of-the-ordinary benefits before the vote in an effort to influ-
ence the vote.
5. The Employer, by its agents, failed and refused to pro-
vide a proper listing of eligible voters by failing to list eligi-
ble employees and listing ineligible employees; and further,
reduced the hours of eligible employees and reclassified
them as ‘‘casual’’ employees based on their union activities
and/or support for the Union.
6. The Employer, by its agents, interfered with, restrained,
and/or coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
The objections of the Petitioner/Union were withdrawn at
trial. No evidence was presented with respect to them. Ac-
cordingly, they will not be treated of further herein.
V. REMEDY
Having found that the Respondent engaged in unfair labor
practices, it shall be recommended that Respondent:
(1) be ordered to cease and desist from its unfair labor
practices.
(2) be ordered, to the extent it has not already done so,
to reinstate John Gibbs to his former position of employ-
ment, and make him whole for any losses he suffered as a
result of the discrimination practiced against him.
(3) be ordered to post the notice provided for herein.
(4) and be ordered to take certain affirmative action pro-
vided herein designed to effectuate the policies of the Act.
Regarding the consolidated representation case, it will be
recommended that the representation case be returned to the
Regional Director with the direction to open and count the
37 of the 39 challenged ballots of eligible employees
Agonoy, Aloncel, Bagasoni, Bailey, Bautista, Butcher,
Cabanizas, Calad, Cardenas, Costa, Dolor, Fukunaga,
Hanamoto, Hara, Hisatake, Ishizaki, Kailihiwa, Kanahele,
Lotaki, Low, Man Zhang, Moku, Muraoka, Ocariza, Palafox,
Rutkiewicz, Sales, Santiago, Sinco, Takara, Tokunaga,
Tomita, Tongotea, Toya, Uipi, Ushijuma, and Yonamine; and
if the additional ballots give the Union a majority of the total
vote, to certify the Union as exclusive bargaining representa-
tive of the bargaining unit.
No provision for the conduct of another election is made
herein inasmuch as each of Respondent’s objections to con-
duct affecting results of election has been found to be lack-
ing in merit, and all of the Union’s objections to conduct af-
fecting the results of election have been withdrawn. It is fur-
ther recommended that the Respondent’s objections to con-
duct alleged to have affected the results of the election be
overruled in their entirety.
CONCLUSIONS OF LAW
1. The Respondent, Sports Shinko (Waikiki) Corporation,
d/b/a Queen Kapiolani Hotel, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union, Hotel Employees & Restaurant Employees’
Union, Local 5, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(3) and (1) of the
Act by issuing warning notices to its employee John Gibbs,
and by thereafter converting him to ‘‘on call’’ or casual sta-
tus, effectively discharging him, and thereby depriving him
of benefits and opportunities to work.
4. Respondent has violated Section 8(a)(1) of the Act by
interrogating employees concerning their own and other em-
ployees union tendencies, activities and leaning; by compel-
ling them to swear on the bible that they will vote against
the Union in a Board-conducted election; by keeping em-
ployees under surveillance as they engage in union activities
such as meeting with officials of the Union; or by threaten-
ing them with the closure of its facility or the loss of their
jobs if they join or support the Union.
5. The above unfair labor practices have an effect on com-
merce as defined in the Act.
6. Respondent has not violated the Act in any other re-
spect.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that employee John Gibbs was unlawfully
discharged, Respondent shall be ordered to offer him imme-
diate reinstatement to his former position, displacing if nec-
essary any replacement or, if not available, to a substantially
equivalent position without loss of seniority and other privi-
leges. It shall be further ordered that John Gibbs be made
whole for lost earning resulting from his discharge, by pay-
ment to him of a sum of money equal to that he would have
earned from the date of his discharge to the date of his return
to work, less net interim earnings during that period. Back-
pay shall be computed in the manner prescribed by F. W.
Woolworth Co., 90 NLRB 289 (1950), and Florida Steel
Corp., 231 NLRB 651 (1977).24 Interest on any such back-
pay shall be computed as in New Horizons for the Retarded,
283 NLRB 1173 (1987).
It shall be further ordered that the Respondent remove
from its records any references to the discharge mentioned,
and provide John Gibbs written notice of such expunction,
and inform him that the Respondent’s unlawful conduct will
not be used as a basis for further personnel actions against
him.25
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended26
671QUEEN KAPIOLANI HOTEL
findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections
to them shall be deemed waived for all purposes.
27 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
National 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.’’
ORDER
The Respondent, Sports Shinko (Waikiki) Corporation,
d/b/a Queen Kapiolani Hotel, Honolulu, Hawaii, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their own or other
employees union sympathies, activities, or leaning; compel-
ling employees to swear on the bible that they will vote
against the Union in a Board-conducted election; keeping the
union activities of employees under surveillance by
photographing them while they meet with officials of the
Union; or by threatening employees with loss of jobs or clo-
sure of our facility if they join or support the Union.
(b) Discharging, warning, disciplining, or otherwise dis-
criminating against employees for having engaged in union
or other protected, concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(b) Offer, if not already accomplished, John Gibbs imme-
diate and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the rem-
edy section of this decision.
(c) Remove from its files any reference to the unlawful
discharge, and notify John Gibbs in writing that this has been
done and that none of these records will ever be used against
him in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its offices and facility in Honolulu, Hawaii,
copies of the attached notice marked ‘‘Appendix.’’27 Copies
of the notice, on forms provided by the Regional Director for
Region 20, after being signed by the 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 the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
The challenges to the ballots of the following employees
are OVERRULED:
Agonoy, Saturnina Low, Tina
Aloncel, Carodad Man Zhang, Ming
Bagasoni, Federrico Moku, Janet
Bailey, Shareen Muraoka June
Bautista, Lynn Ocariza, Narcissa
Butcher, Ninyo Palafox, Estrelita
Cabanizas, Teodora Rutkiewicz, Judy Ann
Calad, Benita Sales, Verona
Cardenas, Walfredo Santiago, Jose
Costa, Kay Sinco, Warlita
Dolor, Jay Takara, Faye
Fukunaga, Geogre Tokunaga, Shane
Hanamoto, Yoshio Tomita, Ken
Hara, Frank Tongotea, Sofia
Hisatake, Phyllis Toya, Satusuki
Ishizaki, Helene Uipi, Amelia
Kailihiwa, Simeon Ushijuma, June
Kanahele, Wilton Yonamine, Katherine
Lotaki, Peleaise
The challenges to the ballots of the following employees
are SUSTAINED
Kutaka, Chizuko
Shaw, Patrick