Rainbow Coaches

National Labor Relations Board - Board Decisions

Mar 29, 1979

241 N.L.R.B. 589 (N.L.R.B. 1979)

RAINBOW COACHES
Rainbow Tours, Inc., d/b/a Rainbow Coaches and Ha-
waii Teamsters and Allied Workers, Local 996, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Ronald
Sai and Garrett Wong. Cases 37-CA-1341, 37-
CA-1342, and 37-CA-1387
March 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND TRUESDALE
On March 29, 1978, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order,3 as modified herein.4
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
We disavow any suggestion by the Administrative Law Judge that Re-
spondent, if properly motivated, could have discharged the strikers herein so
as to be able to obtain replacements. When employees engage in a total
refusal to perform work, as here, as opposed to a partial work stoppage,
there is no business need to discharge the strikers to obtain replacements. In
such circumstances a discharge of the strikers is unlawful. Newberry Energy
Corporation. Industrial Division. 227 NLRB 436, 437 (1976).
The Administrative Law Judge inadvertently finds that under Respon-
dent's reinstatement offer the first full-time striking driver to be reinstated
would be no. 8 on the seniority roster; the correct number is 10.
2 The Administrative Law Judge found that the Teamsters picketing was
not recognitional at its inception. We find it unnecessary to pass on this
finding since we find that, even if it was recognitional at its inception, it was
not unlawful.
3The Administrative Law Judge in the remedy section of his decision
orders backpay for the discharged strikers "for all wages and other benefits
lost between the date of their discharge and their reinstatement.... "Chair-
man Fanning and Member Truesdale agree with this finding. See Abilities
and Goodwill, Inc., 241 NLRB 27 (1979).
Member Murphy, in accordance with her dissent in that case, would find
that Respondent's backpay obligation herein did not commence until the
employees applied for reinstatement.
4 In his recommended Order, the Administrative Law Judge provided that
Respondent shall cease and desist from "in any like or related manner inter-
fering with, restraining or coercing its employees in the exercise of' their Sec.
7 rights. However, we have found that Respondent discharged 12 employees
in violation of the Act, The discharge of an employee for engaging in pro-
tected activities is an unfair labor practice which goes to the very heart of the
Act, and in such cases the Board traditionally provides broad injunctive
language constituting a broad order. Accordingly, we shall modify the Ad-
ministrative Law Judge's recommended Order to require that Respondent
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent,
Rainbow Tours, Inc., d/b/a Rainbow Coaches, Ho-
nolulu, Hawaii, its officers, agents, successors, and as-
signs, shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) In any other manner interfering with, restrain-
ing. or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
cease and desist from "in any other manner" infringing upon the rights
guaranteed to its employees by Sec. 7 of the Act. Ambulance Services of New
Bedford. Inc., 229 NLRB 106 (1977); N.L.R B v. Ent.istle Mfg Co. 120
F.2d 532 (4th Cir. 1941).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with the right of our
employees to seek and secure representation by
Hawaii Teamsters and Allied Workers, Local
996, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by
threatening them with loss of business, new
buses, and the services of the manager (Steve
Kolt) who brought in that new business, as well
as loss of employment, if the employees seek or
secure representation by the labor organization
named above, or any other labor organization.
WE WILL NOT interfere with the right of our
employees to engage in protected concerted ac-
tivities by discharging them for refusing to cross
a picket line established at our premises.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights under Section 7 of the Na-
tional Labor Relations Act, as amended, to orga-
nize, form, join, or assist labor organizations,
bargain collectively through representatives of
their choosing, engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or refrain from
any or all such activities.
WE WILL offer Henry Sanford, Ralph Kaui,
241 NLRB No. 86
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ross Iho, Michael Akamine, Jay Agao, James
Louis, Paul Iwata, G. Lane Kaaiai, Ronald Sai,
Garrett Wong, Miles Fonseca, and Eric Kama
reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
jobs, with full restoration of their seniority and
other rights and privileges, and make them
whole for any loss of earnings they may have
suffered as a result of their unlawful discharge by
us for refusing to cross a picket line established
by the labor organization named above.
RAINBOW TOURS, INC., D/B/A RAINBOW
COACHES
DECISION
STAIEMENI OF IEF CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
July 6 through 13, 1977, 1 conducted a hearing in Honolulu,
Hawaii, to hear issues raised by a complaint issued on April
29, 1977, and amended during the hearing, consolidating
issues raised by a charge filed by Hawaii Teamsters and
Allied Workers, Local 996, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America' on March 2, 1977, in Case 37 CA- 1341; a charge
and amended charge filed by Ronald Sai on March 4 and
May 16, 1977, in Case 37-CA-1342; and a charge filed by
Garrett Wong on July 5, 1977, in Case 37-CA-1387.2 The
latter case was consolidated with the former two cases dur-
ing the hearing inasmuch as all three cases involve common
parties, circumstances, and issues and to avoid unnecessary
costs and delay. The April 29, 1977, complaint was
amended during the hearing to add Case 37-CA-1387 to
the proceeding to name Garrett Wong as a party; to add a
new paragraph I(c) stating Ronald Sai filed his first
amended charge in Case 37-CA-1342 on May 16, 1977,
and a copy thereof was served on Rainbow Tours, Inc.,
d/b/a Rainbow Coaches3 the same day; to add a new para-
graph (d) stating Garrett Wong filed his charge in Case
37-CA- 1387 on July 5, 1977, and a copy thereof was served
on the Company the same day; and to add the names Gar-
rett Wong, Miles Fonseca, and Eric Kama to paragraph
Vl(c) of the complaint.
The amended, consolidated complaint alleged that the
Company violated Section 8(a)(l) of the National Labor
Relations Act, as amended (hereafter called the Act) by
threatening employees with loss of new buses and sale of
the Company if they sought representation for the purpose
of bargaining collectively with the Company over their
rates of pay, wages, hours, and working conditions and dis-
charging employees for respecting a picket line established
by the Union at the Company's premises.
The Company denied it made the alleged threats: as-
serted employees who respected the Union's picket line
I Hereafter called Teamsters or IBT or the Union.
2
This case was consolidated with Cases 37-CA-1341 and 37-CA 1342
after the hearing commenced (see Statement of the Case infra, for details).
Hereafter called Rainbow or the Company.
were not engaged in activity protected under the Act be-
cause the Union's picketing was unlawful: asserted employ-
ees who respected the Union's picket line did so because of
fear of violence and therefore were not engaged in activity
protected under the Act; and finally asserted employees
who respected the Union's picket line were replaced for
valid and legitimate business reasons and therefore their
discharges were not violative of the Act. The Company also
contended two of the employees (Ronald Sai and Ralph
Kaui) are not entitled to reinstatement because Sai was dis-
charged for cause and Kaui was a supervisor, and none of
the alleged discriminatees are entitled to reinstatement be-
cause they did not make unconditional offers to return to
work.
The issues before me are:
1. Whether the Company threatened employees with loss
of new buses and sale of the Company to inhibit their seek-
ing and securing representation for collective-bargaining
purposes.
2. Whether the Company discharged employees for re-
specting the Union's picket lines.
3. If either or both the above issues are answered in the
affirmative, whether the Company thereby violated the Act.
4. Whether Sai and Kaui and the other alleged discrimi-
natees are entitled to the benefit of a reinstatement order.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine and
cross-examine witnesses, argue, and file briefs. Briefs have
been received from the General Counsel and the Company.
Based upon my review of the entire record,' observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT
I. JURISI)ICTION AND LABOR ORGANIZAIION
The complaint alleged, the answer (as amended at the
hearing) admitted, and I find at all pertinent times that the
Company was an employer engaged in commerce in a busi-
ness affecting commerce and the Union was a labor organi-
zation within the meaning of Section 2(2), (5), (6), and (7) of
the Act.
I. IHE ALLEGED UNFAIR I.ABOR PRACTICES
A. Facts
The parties stipulated and I find the Company is the suc-
cessor of a bus company known as Transportation Associ-
ates (hereafter called TA). TA was controlled by its chair-
man and president, Harold Fukunaga, and shared a yard
and headquarters with another bus company known as
Charley's located on Piikoi Street in Honolulu. Prior to Oc-
tober 1976, TA's operations were directed by Brian
McCreadie, its general manager, inasmuch as Fukunaga
spent most of his time at his regular employment as an
executive of Love's Bakery in Honolulu. In October 1976,
Steven Kolt purchased a 30 percent interest in TA and as-
I Pursuant to the General Counsel's motion, certain errors in the transcript
have been noted and are hereby corrected.
590
RAINBOW COACHES
sumed the presidency of TA from Fukunaga. While
McCreadie remained in TA's employ as general manager.
Kolt assumed control of its operations.5
Prior to assuming TA's presidency, Kolt spent approxi-
mately 20 years in the tour-ground transportation business.
working both on the mainland (primarily in the Los Ange-
les area) and on Oahu. Between 1970-75 he was vice pres-
ident and a director of Hawaiian Scenic Tours in charge of
its ground transportation, which consisted of two divi-
sions one providing bus transportation for school children
and the other bus transportation to tourists. Hawaiian
Scenic's Oahu-based bus drivers were represented by the
IBT and its outer island bus drivers were represented by the
International Longshoremen and Harborworkers Union
(hereafter called ILWU). Kolt dealt with both unions on a
day-to-day basis and became familiar with their representa-
tives, contracts, and operations.
During the time Kolt was negotiating the purchase of a
30 percent interest in TA (between January and October
1976), the Teamsters sought recognition, picketed the yard
shared by TA and Charley's, and succeeded in securing
recognition and a contract with Charley's.
When Kolt assumed control of TA's operations, the
Company was operating 12 old buses leased from another
tour-bus operator called Robert's Ullima tours. It was oper-
ating at a loss. It was also signatory to an agreement with
Robert's to lease 20 new buses scheduled for delivery in two
lots; a lot of 10 scheduled for December 1976 and a second
lot of 10 scheduled for January or February 1977. One of
the first things Kolt did (in October 1976) was meet with
TA's drivers, advise them he was in charge, that the Com-
pany was having financial difficulties, that he intended to
secure new accounts and make the Company profitable.
and that the Company would bring their wages, etc., up to
parity with those paid by the Company's competitors when
it became profitable. In response to a question concerning
his attitude toward union representation of the drivers, he
responded he felt employees did not need union representa-
tion if their employer handled problems as they arose and
maintained open communication; that tour operators
would be more interested in using TA for their transporta-
tion needs if it was nonunion: and suggested the drivers
give him a trial period of about 8 months to see what he
could and would do for them.
Between October and December 1976, Kolt renegotiated
the lease agreement with Robert's, changing it from a
straight lease to four lease-purchase agreements, and limit-
ing the agreements to 10 rather than 20 buses. Within a
short time he also secured several new accounts.
By December 1976 the name of the Company had been
changed from TA to Rainbow; the Company had moved to
Kelokoi Street in Honolulu to occupy space leased from
and shared with Robert's, using Robert's wash crews and
mechanics to service its buses;7 six new buses had been
I find at all times pertinent Fukunaga, Kolt. and McCreadie were super-
visors and agents acting on behalf of both TA and its successor. Rainbow.
6 The four lease-purchase agreements were executed on December 1, 1976.
and provided for the delivery of four buses on December I, 1976. two buses
on December 13. 1976. two buses on December 20. 1976. and the final two
buses on December 28. 1976.
7 The terms for such services were not developed in the record
added to Rainbow's fleet: new full-time' drivers were added
to the work force:9 and three new accounts had been se-
cured by Kolt.
On December 15, 1976, Kolt again met with the Compa-
ny's drivers. He announced the Company was going to in-
vite the families of its employees, customers and friends to a
Christmas luau; that he had secured three new accounts for
the Company and expected to gain several more in the near
future: that six of the new buses had been delivered and
four more were coming, all on lease from Robert's:;' ° that he
needed the support of the drivers to keep the new accounts,
secure more, and make the Company profitable; and re-
peated his promise to bring the drivers' wages to parity with
those of the Company's competitors when the Company
achieved a profitable status. He also stated that the rumors
that he was going to terminate McCreadie's employment
were false," he and McCreadie had worked well together in
the past and he expected they would continue to do so; that
the rumor he was going to give preferential treatment to the
new drivers from Hawaiian Scenic was also false, while
they were his friends he believed in following seniority prin-
ciples and the older drivers would not lose out to the new
ones. Kolt was again questioned concerning his attitude to-
wards union representation of the drivers. He replied he
had amicable relations with both the ILWU and the IBT
while he was employed by Hawaiian Scenic, that he be-
lieved the ILWU did a better job of representing its mem-
bers, and was critical of IBT representation, tactics, and
policies. He went on to state he favored many of the poli-
cies and procedures contained in labor agreements, such as
the seniority principle and a three-step disciplinary proce-
dure, but if the Company's drivers went union, the Com-
pany would lose the big, new accounts he brought in; con-
sequently. it would lose the new buses, and he would have
to pull out.'2
As noted heretofore, by December 28, 1976, 10 new
buses were in service and a number of former Hawaiian
Scenic drivers had been hired as full-time employees. Prior
to the delivery of the first lot of new buses (four in number),
the Company employed five full-time drivers and a varying
number of casual and part-time drivers. The five full-time
drivers and their dates of hire (by either Rainbow or its
predecessor, TA) were:
Henry Sanford
Ralph Kaui
Ross Iho
Mike Akamine
Jay Agao
September 21, 1971
February 12, 1975
September 26. 1975
September 27, 1975
March 22, 1976
On January 10, 1977, the Company posted a notice it was
' The Company employed both full-time and part-time drivers.
I New drivers were brought over from Hawaiian Scenic by Kolt; they and
Kolt had developed friendly relations while Kolt was employed by Hawaiian
Scenic.
' He explained the terms of the leases.
i McCreadie was popular with the drivers.
12 The findings contained in this paragraph are based upon the testimony
of Kolt and several of the dnvers who attended the meeting. Kolt corrobo-
rated the drivers' testimony except for their testimony concerning the re-
marks set out in the last sentence. I credit the drivers' testimony on the basis
of the logical relation of the remarks to the general tenor of Kolt's earlier
comments. his October comments. and the mutual corroboration and clarity
of the dners' recollection
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to increase its roster of full-time drivers and would
give first priority to present drivers, provided they were not
employed fulltime elsewhere (or were prepared to give up
such full-time employment). Sometime thereafter,' 3 the
Company posted the following document:
FULL-TIME DRIVERS AS OF JAN. 15, 1977
Our list of Full Time Drivers has expanded to include
the following [by seniority number and seniority date
of hire]:
Date of Hire Name
9-21-71 Henry Sanford
2-12-75 Ralph Kaui
9-26-75 Ross Iho
9-27-75 Mike Akamine
3-22-76 Jay Agao
1-14-77 Vernon Nelson
1-15-77 James Kaopuiki
- 16-77 Bobby Fujimoto
- 17-77 Peter Sataraka
- 19-77 Bozo Kaiihue
1-20-77 Billy Martinez
1-21-77 Ike Sataraka"
On or about January 25, 1977, Ronald Sai, employed by
the Company as a part-time driver from October 1976, ap-
proached Kolt to inquire why he and other part-time driv-
ers, employed full time as city firemen,'5 had not received
pay increases granted to other employees. Kolt replied he
had not increased their wages because he doubted their loy-
alty to the Company and thought the firemen were organiz-
ing for the Union.', When Sai protested, Kolt promised to
consider them for a wage increase in about 30 days.
A few days later (on Friday, January 28, 1977) approxi-
mately 19 of the Company's drivers, including full-time
drivers Sanford, Kaui, Iho, Akamine, and Agao and part-
time drivers Fonseca, Paul Iwata, G. Lane Kaaiai, Kama,
James Louis, Sai, and G. Wong, met at McCreadie's home.
The men discussed their dissatisfaction over the hire of
Kolt's friends from Hawaiian Scenic as full-time, rather
than part-time, probationary drivers and their assignment
to the best vehicles and tours, and elected Kaui and G.
Wong as their spokesmen to express their grievance to Kolt.
They also decided to seek representation by the ILWU in
the event they were not satisfied with Kolt's respo se.
McCreadie was present throughout the meeting.
The following morning (Saturday, January 29, 1977) IBT
pickets appeared outside the Rainbow yard with picket
signs reading "Rainbow Coaches is paying substandard
wages" and "Rainbow Coaches is working without a union
contract." Sai was scheduled to work that day at his full-
time employment as a fireman, commencing his shift at 8
a.m. He was at the firehouse early (at about 7 a.m.) and
received a call there advising him there were IBT pickets
outside the Rainbow yard. He went to the yard, observed
" Kolt testified the roster was posted sometime between January 15, 1977,
and the first day the IBT picketed Rainbow's yard. It was established the
picketing began on Saturday, January 29, 1977.
14 It is undisputed Ike Sataraka commenced work January 21, 1977,
worked for a few days, and did not work thereafter.
1' Sai, Garrett Wong, A. Wong, Eric Kama, Miles Fonseca, and Mike
Cabanilla.
36 The city firemen were represented by a labor organization; Sai had been
employed by Charley's when it was organized by the IBT.
the picketing, and telephoned Kaui and G. Wong. They
decided to invite the 19 drivers who attended the meeting at
McCreadie's house the preceding evening to meet the fol-
lowing morning opposite the yard to decide what they
ought to do. They divided up the list of 19 names for noti-
fication. Both Sai and G. Wong also telephoned the Com-
pany's dispatcher and requested to be placed on sick leave.
Iho and Agao commenced work on January 29, 1977,
before the pickets arrived. Both were advised by radio tele-
phone of the picketing, that they would be given assign-
ments throughout the day by radio, and instructed to re-
main away from the yard until the dispatcher advised them
the pickets had left. They followed instructions and worked
all day, returning their buses to the yard after the dis-
patcher advised them the pickets had dispersed and di-
rected their return to the yard. During the course of their
work that day, both Iho and Agao observed a carload of
men unknown to them pull up in front of their buses and an
occupant in the rear seat, after getting their attention,
sketching the outline of a box or a coffin with his hands.
Sanford was scheduled to work on January 29, but, seeing
the pickets on arriving at the yard at about 8:30 a.m., de-
cided not to cross the picket line and returned home.
Kolt telephoned Kama that evening and informed Kama
of the IBT picket line, but told Kama not to worry about it
and to report for work the next morning. Sanford was tele-
phoned by the dispatcher and instructed to report for work
the following morning. Iwata was also instructed to report
for work on January 30.
Sanford and Iwata reported for work on Sunday, Janu-
ary 30, prior to the arrival of any pickets. Sanford asked
why he was called in, since Sunday was his regular day off.
Kolt informed him he was called because he had not
worked the day before when he was scheduled. Sanford and
Iwata picked up their worksheets and microphones,
checked out their buses, and proceeded towards the gate,
with Sanford in the lead. Before Sanford reached the gate,
pickets appeared outside. Sanford stopped the bus and in-
formed Kolt he was not going to go through the picket line.
Kolt approached Iwata and asked him what he was going
to do. Iwata replied he was not going to go through if San-
ford was not going through. Kolt stated if Iwata was not
going to drive he would have to discharge him,--the Com-
pany had to keep the buses rolling. Sanford and Iwata
backed the buses up, returned them to their parking spaces,
and came to the company offices to turn in their micro-
phones and worksheets. Kolt asked Sanford. if the pickets
were there for 30 days did that mean Sanford would not
drive for 30 days. Sanford replied affirmatively. Kolt then
stated if Sanford left, he was not to return. Sanford asked if
that meant he was fired. Kolt replied affirmatively. On the
same day, James Louis left the yard with a bus prior to the
arrival of any pickets. While he was parked at a tourist stop
awaiting the return of his passengers, a stranger approached
the door of the bus and instructed him to take the bus back
to the yard. Louis refused. Soon thereafter a car arrived and
one of the occupants again approached his door and in-
structed him to take the bus back to the yard and look
outside his window. Louis looked out the window and saw
men pointing a shotgun and pistols at him. He stated he
would return the bus to the yard. He then radioed the dis-
592
RAINBOW C
patcher, told him what had occurred, and stated he was
bringing the bus in (over the dispatcher's objections). Louis
returned the bus to the yard and reported the incident to
Kolt. Kolt said the men were just trying to frighten Louis.
Louis replied he was not afraid personally, but he had been
through a labor dispute before and his family had been
threatened; he was a member of the union which represent-
ed the employees at his full-time employment (by the city
refuse department); and he was not going to work while the
Company was picketed. When Kama arrived at the yard
that morning and saw the pickets, he telephoned the dis-
patcher and stated he was not going through the picket line.
At or about 7 a.m. the same day (Sunday, January 30)
Sai, G. Wong, Kaui, and other Rainbow drivers (the three
were able to reach) began to gather across the street from
the Rainbow lot. Sai and Kaui recognized several of the
pickets as Hawaiian Scenic drivers. They asked why the
IBT was picketing and the pickets stated the IBT was upset
over Hawaiian Scenic's loss of both accounts '? and drivers
to Rainbow. Their remarks were reported to the group.
When Sanford and Iwata joined the group, they reported
their discharge. The group discussed the discharges, the Iho
and Agao incidents of the previous day, and the IBT pick-
eting. They decided to stay together as a group, to seek
ILWU representation, and to return to work. Sanford was
designated to contact the ILWU. Sanford invited the group
to come to his home and continue the discussion. McCrea-
die came to Sanford's home, joined the group, and partici-
pated in the discussion. Sanford attempted to contact an
ILWU representative known to him, but was unsuccessful
that day (Sunday). Iho contacted the company dispatcher
and was given a starting time the following day. He was
later contacted by Kaui, however, and requested to meet
with the group outside the picket line the following morning
prior to reporting for work. Others of the group were also
contacted and requested to meet the following morning.
Kolt, Fukunaga, and McCreadie held a meeting at the
Rainbow yard that evening attended primarily by drivers
who worked while Rainbow was picketed,'8 plus some re-
cent hires and prospective employees.'9 Kolt told the gath-
ered drivers he believed the IBT picketing was aimed
mostly at Robert's,12 with the IBT taking on both Robert's
and Rainbow mainly because they shared the yard. He
stated Rainbow's customers were supporting Rainbow and
it would be able to stay in business so long as it was able to
provide service and so long as the drivers continued to work
as Robert's drivers had. One of the drivers asked what pro-
tection Rainbow could give them. Kolt replied that the
Company could not afford to give 24-hour protection, but
would provide protection while the bus was in operation. A
driver who had not driven for Rainbow prior to the picket-
ing asked what status he and others who came to work for
the Company after the picketing started would have after
the picketing ceased. Kolt stated he felt obligated to take
care of drivers who showed their loyalty to the Company by
working during the picketing by giving them a higher se-
" Sun Tours and Hawaiian Holidays.
" Fujimoto, Martinez, Kaiihue. and Kaopuiki.
'" Walter Nelson, Pablo Ripani. Henry Hanalei Kaaihue, Richard Yama-
naka, and Rickard Kekona.
2o By this time the pickets were also carrying signs saying Robert's was
unfair.
593
niority status than those who failed to support the Com-
pany or refused to work while Rainbow was picketed.
Many of the original group of 19 met again across from
the picket line on Monday morning, January 31. Sanford
reported he had contacted the ILWU and its representative
informed him the ILWU and IBT had agreed that neither
wold seek to organize the employees of an employer where
the other had previously initiated an organizational effort
and, since the IBT had made a previous attempt to organize
TA's drivers, the ILWU would not represent them. The
group decided to seek IBT representation and to respect the
IBT picket line. Iho asked whether the Company should be
informed. He was authorized to contact the Company's dis-
patcher and advise that they were respecting the picket line
and would not be in to work and so advised the dispatcher.
The group moved its meeting over to the Pawaa fire station
and were joined by McCreadie. McCreadie was advised of
their decisions; he informed them that several new drivers
had been hired2' and the Company intended to hire still
others, so the longer they stayed out the less the likelihood
they would be reinstated." During the day the group con-
tacted the IBT, signed authorization cards, and were ad-
vised by the IBT it would be unlawful for the Company to
discharge them for respecting the IBT picket line.2
That evening most of the group 2 attended a meeting at
the Pawaa firehouse. They designated G. Wong as their
spokesman, detailed questions they wished discussed with
the Company (the seniority status of the former Hawaiian
Scenic drivers and their preferential treatment, their senior-
ity status, etc.), and invited Kolt to attend the meeting.
When Kolt arrived, Wong attempted to discuss the ques-
tions the group had raised. Kolt replied that he was not
there to discuss company policies, but to tell them he
needed their services and wanted them to return to work. A
driver asked him what their current status was, i.e., had
they been discharged. After some equivocation 6 in re-
sponse to repeated inquiries if being replaced meant they
had been fired, he told them if they wanted him to use the
word fired, that was their status if they did not come back
to work after the meeting." In response to inquiries con-
cerning their status if they returned to work, Kolt criticized
the group as lacking guts. depicted their refusal to cross the
21 Richard Yamanaka, Peter Sataraka, and Pablo Ripani commenced
work as full-time drivers on January 31. While the seniority roster posted in
late January lists Sataraka with a seniority date of January 17, the work
records do not disclose he worked on that date or any date prior to January
31.
22 Henry Hanalei Kaaihue and Walter Nelson indicated their interest in
going to work for the Company at the January 30 meeting at the Rainbow
yard, provided they were assured full-time employment and retention when
the picketing ceased, which Kolt promised.
23 McCreadie confirmed, however, that Sanford and Iwata had been dis-
charged and would not be reinstated.
24 The group was so advised by Arthur Rutledge, the IBT president, and
another IBT representative. Rutledge also told them the original purpose of
the picket line was "informational."
25 Ten of the twelve alleged discriminatees were there (Sanford, Kaui. Iho.
Akamine, Agao, Iwata, Louis, Kaaiai, Sat, and G. Wong); Fonseca and
Kama did not attend, but were notified by the attendees what transpired at
the meeting. Others of the original group of 19 also attended (Herman Kala-
hiki and A. Wong).
26 Kolt first took the position they were replaced.
2' He stated he would return to the Rainbow yard after the meeting and
remain there until midnight, and if they wanted jobs, to apply as individuals
before midnight.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IBT picket line as disloyalty, and stated he was taking care
of his "loyal" employees, so the ones he accepted would go
to the bottom of the seniority roster, i.e., the first full-time
returnee would be no. 8 on the full-time seniority roster and
the first part-time returnee would also be no. 8 on the part-
time roster.28 Kolt also advised the group he needed their
services, he felt the Company could survive the picketing,
he felt they and the Company were being used as tools by
the IBT, repeated the need for the Company to maintain its
services in order to retain its customers and its need for
their help, and stated if they wanted union representation
any union other than the IBT was acceptable to him.
The group decided against accepting Kolt's offer of reem-
ployment under the conditions stated.
The following day (Tuesday, February I) Henry Hanalei
Kaaihue and Walter Nelson commenced work as full-time
drivers for the Company.
That same day Kolt met with Rutledge. Rutlege asserted
he represented a majority of the Company's drivers and
requested recognition and a contract. He also requested in-
formation concerning the Company's current wage scales,
fringe benefits, etc. Kolt handed him a document listing the
requested information, but said the Company could not af-
ford to go union at its present growth stages, it could not
survive. Kolt was not convinced a majority of the drivers
wanted IBT representation and declined to recognize the
IBT or state they had an agreement,' 9 suggesting they let
the matter be determined by an NLRB-conducted election.
Rutledge then asked Kolt to take the old drivers back, with
full seniority. Kolt replied he would take them back, but
would only give them seniority behind those who stayed
with him.
At Rutledge's suggestion that evening that they apply
unconditionally for reinstatement to the Company and his
assurance that such applications would be accepted by the
Company, most of the discriminatees ° went to the Rain-
bow yard the next morning (Wednesday, February 2) to
apply for reinstatement. They entered the yard as a group
and were addressed by Kolt outside his office. Kolt stated
there were no full-time openings, but he would accept their
applications for part-time employment as and when
needed. The group consulted with the IBT and were ad-
vised to file the requested applications. They returned and
did so. On completing their applications, Kolt interviewed
them one at a time, reviewed their applications and sup-
porting documents (driver's license, health card, etc.), and
in most instances told the applicant he would call him if
and when his services were needed, but never called the
applicant thereafter.3' In Kaui's case, Kolt noted Kaui's
health card had expired. Kaui explained he had telephoned
the doctor for a physical examination in order to renew his
card and could not get an appointment until February 4 2
1" The full-time drivers listed on the full-time seniority roster below alleged
discnminatees Sanford, Kaui, Iho, Akamine, and Agao were seven in num-
ber. The record does not disclose the identity of the seven part-time drivers
who worked during the picketing.
29 Rutledge asked Kolt to authorize him to tell the drivers who had signed
IBT cards that they had an agreement at a meeting he had scheduled with
the card signers that evening.
0 All but G. Wong.
1 Agao, Akamine, and Iho's testimony to this effect was uncontradicted
and is credited.
12 Kaui kept the appointment and secured a valid health card on
February 4.
Kolt asked him to wait outside. While Sanford initially
withdrew upon Kolt's advice that only part-time employ-
ment was available, he later returned and stated he would
accept any employ. Kolt asked him if he was ready to go to
work that day. Sanford replied in the negative, stating he
had plans for the rest of the day, but was available the
following day. Kolt suggested he check later to see if work
was available the next day. When Louis entered Kolt's of-
fice for his employment inteview, he did not have his health
card with him and was instructed to bring it in. He did so
and was advised there was work for him the following day.
He worked on February 3 and has worked in a part-time
capacity for the Company since that date. Kolt interviewed
Kama, found his documents satisfactory, and asked him if
he was available for work. Kama replied affirmatively and
was instructed to check later and he would be advised if
there was work for him. Kolt checked Sai's documents and
found them satisfactory. He expressed his distress at seeing
Sai outside the picket line on Sunday, January 30, after
receiving a report Sai had called in sick, and asked if he
worked at the firehouse that day. Sai replied he was not
scheduled to work at the firehouse that day and was not
feeling well, but came down to the picket line to try to find
out what was going on. Kolt testified he told Sai he had
more respect for those who stated they were not going to
work because of the picket line and he did not want to
employ a liar; that if he wanted to hire Sai he would call
him, but did not think he would call. Sai denied Kolt made
such statements, but simply told Sai he would call him if his
services were needed. I find Kolt raised a question concern-
ing Sai's presence at the picket line (both testified to that),
but did not call Sai a liar or tell him he would not be called,
simply stating he told Sai not to call the Company, it would
call him if it wanted to hire him, and no more. Kolt found
Fonseca's documents satisfactory and asked him if he was
available that day. Fonseca replied negatively. Kolt then
told him to check later and he would be advised if work was
available for him. Iwata was interviewed, his documents
found satisfactory, and returned to work on February 3.
Kaaiai was interviewed, his documents approved, and in-
structed to check and he would be advised if work for him
was available. G. Wong did not appear to fill out an appli-
cation and submit to an individual interview with Kolt that
morning. Other members of the original group of 19 (not
named in the complaint as alleged discriminatees) filled out
applications and were assigned part-time work along with
Louis and Iwata (Herman Kalahiki, William Kamaka, and
A. Wong)."3
Following their individual interviews, the alleged dis-
criminatees (with the exception of G. Wong) gathered in
the yard outside Kolt's office. Kolt came outside and an-
nounced he had work that day for only one of the group
and since Kamaka was the first member of the group with
proper qualifications to come through the door, he was put-
ting Kamaka to work. The group then dispersed. As they
left the yard, Sai met G. Wong coming to put in his applica-
tion and informed G. Wong of Kolt's position and his an-
nouncement there were no present work opportunities. On
the basis of that advice, G. Wong did not file an application
11 All five had previously been part-time employees.
594
RAINBOW COACHES
for reinstatement that day. Later in the month he went to
the yard to file an application and was advised by McCrea-
die that McCreadie could not furnish him an application,
he would have to see Kolt (Kolt was not there). G Wong
made no further attempt to secure reinstatement.
Towards evening the same day, most of the group re-
turned to the yard to secure their paychecks for the previ-
ous work period (the Company paid its employees every
other Wednesday for the 2 weeks prior to each payday).
Kolt informed the group there was no work for them the
following day (February 3).'4
Sanford, Kaui, Iho, Akamine, and Agao, all alleged dis-
criminatees, full-time drivers, and numbers I through 5 on
the full-time seniority roster prior to the commencement of
the IBT picketing, have never been recalled by the Com-
pany either in a full-time or part-time capacity; neither
have alleged discriminatees and part-time drivers Sai,
Kaaiai, Kama, and G. Wong. Alleged discriminatees and
part-time drivers Louis, Iwata, and Fonseca have been re-
called, with seniority dates from the date of the first such
recall. Additional members of the original group of 19 and
part-time drivers Kamaka, Kalahiki, and A. Wong have
also been recalled; their seniority dates are not of record.
The picketing continued until February 18, 1977. During
the picketing, and particularly in the early period, there is
no question the Company lost business" and income.s
B. Analysis and Conclusions
1. The alleged threats
Kolt made it clear in his remarks to the drivers in his
December 15, 1976, meeting with them the Company was
unprofitable when he purchased an interest in it; that he
had taken accounts away from the Company's unionized
competitors because they preferred to employ the Company
for their transportation needs because it was nonunion; that
he was aware the company wage scales, etc., were lower
than those of the Company's unionized competitors; and
that his staying with the Company, retaining the new ac-
counts he had secured, his acquisition of additional new
accounts, the consequent profitability of the Company, its
ability to pay for and retain the newly purchased buses, and
its ability to bring their wage scales, etc., up to parity with
the Company's competitors were all contingent upon their
not seeking and securing union representation. Kolt obvi-
ously was alert to the drivers' interest in such representation
(by the questions the drivers raised concerning that possibil-
ity at both the October and December meetings) and aware
(by his promises of wage parity) of the appeal union repre-
sentation had by virtue of the higher wage scales, etc., in
3' Louis and Iwata, however, were given work assignments for February 3
by telephone. Kamaka was given a work assignment on February 2. The
record does not disclose when or how Kalahiki and A. Wong received their
work assignments.
3) Sunset Hawaii-Hawaiian Beachcomber Tours, associated companies,
notified Kolt on February I, 1977, that they were discontinuing use of Rain-
bow until the labor dispute was concluded.
' On January 29 the Company farmed out 145-1 /2 hours of work received
from its customers to its competitors for performance; the Company nor-
mally charged its customers between $24 and $32 per hour for its services.
On January 30, the Company farmed out 119-1/2 hours: on January 31, 138-
I/2 hours.
the contracts between his competitors (including his former
employer, Hawaiian Scenic) and the IBT and ILWU.
The implication Kolt left with the drivers was clear-
seek union representation and the Company loses my ser-
vices, the accounts I have brought in, any possibility of
additional new accounts, profits, the new buses, any possi-
bility of wage increases and, obviously, a question of
whether the Company and their jobs would continue.
Such an implied threat clearly interfered with, restrained,
and corced the drivers in the exercise of their right to seek
representation from a labor organization for the purpose of
bargaining collectively with the Company concerning their
wages, rates of pay, hours, and working conditions, and I so
find and conclude.
I therefore find and conclude the Company violated Sec-
tion 8(a)(1) of the Act by virtue of Kolt's December 15.
1976, remarks noted above.
2. The alleged discriminatory discharges
It is undisputed that Kolt discharged Sanford and Iwata
on Sunday, January 30, 1977, when they refused to take
their buses through the IBT picket line. It is similarly undis-
puted that on the evening of Monday, January 31, 1977,
Kolt told 10 of the 12 alleged discriminatees, including San-
ford and Iwata and excluding Fonseca and Kama,3 7 they
were discharged if they failed to contact him individually
by midnight, agree to cross the IBT picket lines, and accept
whatever terms of recall he offered them.38 I therefore find
and conclude that on or before January 31, 1977, the Com-
pany by Kolt discharged the 12 alleged discriminatees for
refusing to cross the IBT picket lines and work on whatever
terms Kolt offered them.
The Company contends, however, the discharges were
not unlawful because (I) the IBT picket line was unlawful;
or (2) the dischargees respected the picket line because of
fear of bodily harm; or (3) it was entitled to discharge them
and hire permanent replacements for them in order to oper-
ate its business.
The Company contends that the picket was illegal be-
cause the IBT picketing was an unlawful restraint of trade
in violation of the antitrust laws, citing United Mineworkers
of America v. Pennington, 381 U.S. 657 (1965); Allen Brad-
ley Co. v. Local Union No. 3, International Brotherhood of
Electrical Workers, 325 U.S. 797 (1945); and Connell Con-
struction Co., Inc. v. Plumbers & Steamfitters Local Union
No. 100, United Association of Journeymen & Apprentices of
the Plumbing & Pipefitting Industry of the United States and
Canada, AFL-CIO, 421 U.S. 616 (1975). In each of these
cases, however, the union had entered into an agreement
with one employer or employer group to use its economic
17 Who I find were notified of Kolt's statements later.
31 Kolt testified he did not foresee a need for any more than I full-time
drivers for some time (the size of his full-time driver complement pnor to
January 29) The record does not disclose the size of his part-time driver
complement prior to January 29 or the number the Company intended to
retain on and after January 31. In view of his statement at the meeting that
he intended to put all full-time and part-time drivers who demonstrated their
loyalty to the Company by working during the picketing, ahead of any of the
alleged discriminatees who applied; his disparaging remarks concerning their
courage and loyalty to him; and the nature and number of job offers he
made when they appeared on February 2. the nature and extent of Kolt's
offer of reinstatement at the January 31 meeting is ambiguous at best.
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
power to force terms on another employer or employer
group. There is no valid, probative evidence here that the
IBT entered into an agreement with Hawaiian Scenic to
restrain Rainbow's business." The Company also argues
that the IBT picketing was unlawful in that it was second-
ary in nature and violative of Section 8(b)(4) of the Act
and/or unlawful in that it was recognitional at a time the
IBT did not represent any Rainbow drivers and violative of
Section 8(b)(7) of the Act.
Findings have been entered that initially the pickets car-
ried signs clearly identifying Rainbow as the picketed em-
ployer and carrying the legend that Rainbow was paying
substandard wages and its drivers were not working under a
union contract. Findings have also been entered that Rut-
ledge informed Rainbow's drivers that the initial purpose of
the picketing was informational [to inform the public and
persons doing business with Rainbow of its substandard
wages (admittedly below those of Rainbow's unionized
competitors) and that it was a nonunion operation]. Find-
ings have also been entered that the pickets, a few days
after the Rainbow picketing commenced, began to carry
signs identifying Robert's as a picketed employer (presum-
ably with similar messages).
The Company cannot reasonably contend the Rainbow
picketing was intended to bring pressure on another em-
ployer to yield to IBT demands, since it is clear Rainbow
was the target of the picketing because it was causing IBT
members to lose job opportunities to the nonunion sector of
the industry. So the Company contends the IBT picketing
of Rainbow was secondary because the pickets marched
across a gate shared by Rainbow and Robert's and a gate
posted as one solely for Robert's use, thereby violating
Moore Drv' Dock4" standards. In the circumstances of this
case, it was the picketing of' Rainbow's operations, whatever
gate the Rainbow buses went through, which motivated the
alleged discriminatees' refusal to work. Even were the pick-
eting of the gate allegedly designated as solely for Robert's
use by pickets carrying Rainbow signs held to be unlawful,
it is clear this would not support a finding that the picketing
of the gate used by Rainbow and Robert's (the picketing
which the alleged discriminatees respected) was unlawful. It
is further noted that Kolt testified he farmed out a substan-
tial portion of Rainbow's work to Robert's for performance
by Robert's buses and drivers during the picketing; Rob-
ert's certainly ceased to be an unoffending neutral to the
IBT-Rainbow dispute at that point and became Rainbow's
ally, which would justify picketing both gates.
With reference to the claim of alleged 8(b)(7) violation,
the evidence indicates initially that the picket line was not
recognitional, a necessary ingredient to a finding of viola-
tion of Section 8(b)(7), but rather informational [and the
second proviso to Section 8(b)(7)(C) specifically excludes
informational picketing from the coverage of the section].
While the picketing may have been converted into a recog-
)9 Kolt's testimony that a former Hawaiian Scenic employee he hired told
Kolt by telephone that he appeared at the IBT picket line the previous day
because he had been told to do so when he reported for work is hearsay and
falls far short of establishing a conspiratorial agreement between Hawaiian
Scenic and the IBT to restrain Rainbow's business: is ambiguous: and the
fact Hawaiian Scenic drivers were among the pickets is likewise insufficient
proof of such conspiracy.
4 Sailors' Union of the Pacific. AFL (Moore Dry Dock Company)., 92
NLRB 547 (1950).
nitional picket line after the alleged discriminatees (and
possibly other Rainbow employees) signed IBT authoriza-
tion cards and the IBT requested recognition as their repre-
sentative (on the third and fourth day of picketing), the
evidence is insufficient to support a finding that the picket-
ing thereafter became unlawful in the absence of evidence
concerning the nature of the petition that the alleged dis-
criminatees (and possibly others) signed at the IBT hall for
presentation to the NLRB Regional Office (it may have
complied with the statutory requirement of a petition filing)
or that the cessation of picketing by February 18 was suffi-
ciently timely that a finding of Section 8(b)(7) is not sup-
portable.
For the reasons set out above, I find and conclude the
Company has not demonstrated by substantial, probative
evidence that the IBT picketing of Rainbow was unlawful
and thereby deprived the alleged discriminatees of the pro-
tection of the Act.
Citing N. L. R.B. v. Union Carbide Corp., 440 F.2d 54 (4th
Cir. 1971), cert. denied 404 U.S. 826 (1971), and other
cases, the Company next contends the alleged discrimi-
natees refused to cross the picket line because they feared
bodily harm, not because they made common cause with
the picketing union, and therefore their respecting the
picket line was not activity protected under the Act.
In a 1972 decision," the Board rejected the Union Car-
bide holding, adopting the statement of the Trial Examiner
in that case that:
. .contrary to the court's holding in ULnion Carbide,
the Board's decisions regard an employee's motive for
honoring a picket line as irrelevant. Thus, in Cooper
Thermometer Co., 154 NLRB 502, the Board said, at
504:
[T]he focal point of inquiry in determining whether
[an employee's] refusal to cross the picket line to
perform production work was a protected activity
must of course be the nature of the activity itself
rather than the employee's motives for engaging in
the activity.
Accordingly, since I am required "to apply established
Board precedent which the Board or the Supreme
Court has not reversed," I regard as without merit the
Respondent's contention that a refusal to cross a picket
line is an unprotected activity when it is motivated by
fear.
Even if one were to apply the Union Carbide ruling in this
case, the Company's argument lacks merit. While it may be
true Sanford and others among the 12 alleged discrimi-
natees failed or refused to cross the IBT picket line on
January 29 and 30 because they feared violence to their
persons.42 they met together on January 31 prior to the time
Kolt discharged them, decided to stay together as a group,
decided to secure IBT representation, secured assurances
from IBT of such representation, and thereby joined cause
with the IBT as employees of Rainbow on strike against it
"I Congoleum Industries, Inc., 197 NLRB 534, 547 (1972).
42 Not all of the 12 alleged discriminatees respected the picket line on
January 29 and 30 because of fear of bodily harm; many did so as a matter
of principle.
596
RAINBOW COACHES
because, as proclaimed on the IBT picket signs. Rainbow
was paying substandard wages and they were not working
under a union (IBT) contract.
Thus, both on the basis of Board doctrine and under the
facts and circumstances of this case. I reject the Company's
contention that the 12 alleged discriminatees were engaged
in conduct unprotected under he Act because some of their
number may have refused to cross the IBT picket line on
January 29 and 30 primarily due to their fear of bodily
harm.
The Company contends that in any event it was entitled
to discharge its striking employees and hire permanent re-
placements for them in order to maintain its business opera-
tions, citing N.L.R.B. v. Southern Greyhound Lines, Division
of Greyhound Lines, Inc., 426 F.2d 1299 (5th Cir. 1970);
Redwing Carriers, Inc. and Rockana Carriers, Inc., 137
NLRB 1545 (1962), enfd. 325 F.2d 1011 (D.C. Cir. 1963),
cert. denied 377 U.S. 905 (1964); and Swain & Morris Con-
struction Co., 168 NLRB 1064 (1967), enfd. 431 F.2d 861
(9th Cir. 1970).
While it is well settled that an employer has a right to
terminate strikers and hire replacements for them in order
to continue business operations,' the Board, with court ap-
proval, has developed the doctrine that the employer's onlv
motive for effecting such terminations must be to secure
performance of the strikers' work (and not in retaliation for
their withholding their services), and such termination is
necessary to secure performance of that work."
In this case, just the opposite occurred. The evening after
the 12 alleged discriminatees informed McCreadie they
were joining the IBT and supporting its picketing efforts
against the Company, Kolt told them he would deal with
any union other than the IBT; told them their respecting
and joining the IBT cause demonstrated their lack of loy-
alty as contrasted to the conduct of the other drivers who
remained on the job; and advised them while he needed
them, if they returned and if he offered them jobs, they
would be at the bottom of the respective full-time and part-
time seniority lists, behind the drivers who remained on the
job. The Board has ruled on several occasions that an offer
of reinstatement to strikers accompanied by an announce-
ment that those who accept such offer will be accorded the
status of new hires, with consequent loss of their previous
seniority standing, is clearly retaliation for engaging in ac-
tivities protected under the Act unrelated to any need to
continue operations,4' and a violation of Section 8(a)(1) of
the Act. Kolt's December 15, 1976, remarks to the drivers,
his January 25 comments to Sai, and his remarks at the
January 31 meeting all demonstrate Kolt's hostility to the
IBT and anyone supporting it, particularly as the represent-
ative of any of Rainbow's employees.
Since Kolt also advised the drivers at the January 31
meeting that if they accepted his offer of reinstatement as
new employees, the first full-time driver rehired would be
number 8 on the full-time seniority roster and the first part-
time driver rehired would also be number 8 on the part-
a N.LR.B. v. Mackay Radiod Telegraph Co., 304 U.S. 333 (1938).
Redwing Carriers, supra,' Swain 4 Morris, supra; Overnight Transporta-
rion Co., 209 NLRB 691 (1974).
"4 Decatursville Sportswear Co., Inc., 205 NLRB 824 (1973) Globe Molded
Plastics Co., Inc., 204 NLRB 1041 (1973).
time seniority roster, it is clear vacancies existed" at that
time. I therefore find and conclude. by Kolt's January 31,
1977, discharge of the 12 discriminatees for refusing to go
through their designated representatives' picket line and ac-
cept the status of new employees at a time there were job
vacancies, shows Kolt discharged the 12 alleged discrimi-
natees in retaliation for their supporting the IBT picket line
and not solely due to business considerations. I therefore
further find that by such discharges Kolt violated Section
8(a)(1) of the Act.
The Company next contended that the alleged discrimi-
natees did not make an unconditional offer to return to
work and therefore are not entitled to reinstatement: that
Sai in any event is not entitled to reinstatement because he
was discharged for cause; and that Kaui is not entitled to
reinstatement because he was a supervisor.
Since findings have been entered that the 12 alleged dis-
criminatees were discharged for engaging in protected con-
certed activities, the normal remedy is an order directing
the employer to make a current offer to reinstate them to
their former positions or, if those positions no longer exist,
to substantially equivalent positions, and to reimburse them
for any wage losses they have suffered between the date of
their unlawful discharge and the date of such reinstatement.
There appears little reason to depart from that remedy
here, inasmuch as it is readily apparent the alleged discrim-
inatees and their representative made it clear the alleged
discriminatees desired reinstatement, with all rights restored.
In any event, I find Sanford, Kaui. Iho. Akamine, Agao.
Fonseca, Iwata, Kaaiai. Kama. Louis, and Sai uncondition-
ally offered to return to work on February 2, 1977. and (i.
Wong would have done so but for receiving a report that
Kolt had refused to reinstate any of the I just named to
their former positions and status.
I further find, in accordance with factual findings entered
heretofore, that Kolt did not discharge Sai on February 2.
1977, for cause, i.e., fbr calling in sick the previous Sunday
when he was not in fact ill, but rather only questioned Sai
about appearing outside the picket line after calling in sick
and, after hearing Sai's explanation, accepting Sai's appli-
cation and telling Sai he would be contacted if needed.
As far as Kaui is concerned, it is undisputed that Kaui
spent 85 to 90 percent of his time driving a bus and 10 to 15
percent of his time training and familiarizing other drivers
on equipment; that Mike Akamine and Vernon Nelson also
did such training; that Kaui was not authorized to hire or
fire employees, did not hire or fire employees, and did not
direct employees in the performance of their work. I there-
fore find and conclude Kaui was not a supervisor within the
meaning of the Act. It is true that Kaui did not have a valid
"The full-time roster posted in late January 1977 listed Sanford. Kaui.
lho, Akamine, and Agao as nos. I through 5 and V. Nelson, Kaopuiki.
Fujimoto, P. Sataraka. Kaaihue, Martinez, and I. Sataraka as nos. 6 through
12 on the full-time seniority roster: moving the latter seven up would change
their numerical order to I through 7. Since I. Sataraka left the Company's
employ prior to January 29 (when the picketing commenced) and was not
replaced, it appears Kolt was offering Sanford. Kaui, Iho, Akamine, and
Agao reinstatement in seniority slots 7 through I if the) accepted his offer
of employment as new hires. the reverse of their seniority positions pnor to
joining the IBT. The record does not disclose the positions of the part-time
alleged discriminatees on the part-time seniority roster, but it may be pre-
sumed reasonably that one or more of them were numbered between I and 7
prior to joining the IBT.
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
health card at the time he was interviewed by Kolt on Feb-
ruary 2, 1977. It is undisputed that Kaui's health card ex-
pired on January 23, 1977; that McCreadie was aware of
such expiration, aware that on January 21, 1977, Kaui
scheduled a medical appointment for the purpose of secur-
ing its renewal for February 4, 1977, and authorized Kaui
to continue to drive, which he did, between January 23 and
28, 1977; and that Kaui secured a renewal of his health
card on February 4, 1977. On the basis of the foregoing, I
find Kaui is entitled to reinstatement under the Act.
CONCLUSIONS OF LAW
1. At all pertinent times Rainbow was an employer en-
gaged in commerce in a business affecting commerce and
the IBT and ILWU were labor organizations within the
meaning of Section 2(2), (5), (6), and (7) of the Act.
2. At times pertinent Kolt and McCreadie were supervi-
sors and agents of Rainbow acting on its behalf within the
meaning of the Act.
3. At times pertinent Kaui was not a supervisor of the
Company acting on its behalf.
4. Rainbow violated Section 8(a)(l) of the Act on De-
cember 15, 1976, by Kolt's statement that Rainbow would
lose several major accounts that he brought in, its new
buses, and his continued efforts and participation in and on
behalf of Rainbow if they sought and secured union repre-
sentation.
5. Rainbow violated Section 8(a)(1) of the Act on Janu-
ary 31, 1977, by discharging employees Sanford, Kaui, Iho,
Akamine, Agao, Fonseca, Iwata, Kaaiai, Kama, Louis, Sai,
and G. Wong in retaliation for their support of the IBT.
6. The above unfair labor practices affected commerce as
defined in the Act.
THE REMEDY
Having found the Company interfered with the rights of
Sanford, Kaui, Iho, Akamine, Agao, Fonseca, Iwata,
Kaaiai, Kama, Louis, Sai, and G. Wong to engage in pro-
tected concerted activities by discharging them for refusing
to cross the picket line at its premises, I shall recommend
the Company be directed to cease and desist therefrom and
take the following affirmative action designed to effectuate
the purposes of the Act: Offer the 12 persons just named
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, with full restoration
of their seniority and other rights and privileges as they
existed prior to their discharge, and reimburse the 12 per-
sons for all wages and other benefits lost between the date
of their discharge and their reinstatement, with the lost
wages and interest thereon computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977),' 7 and
post appropriate notice thereof. Having further found that
the Company interfered with the rights of its employees to
seek and secure union representation by threatening the
employees with loss of business, loss of new buses, and loss
of the services of the manager who brought in major new
business (and therefore an implied threat of loss of their
47 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
jobs) if they sought and secured union representation, I
shall recommend the Company be directed to cease and
desist therefrom and post appropriate notice thereof.
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I recommend the issuance of the following:
ORDER"
The Respondent Rainbow Tours, Inc., d/b/a Rainbow
Coaches, Honolulu, Hawaii, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Interfering with the right of its employees to seek and
secure union representation in violation of Section 8(a)(1)
of the Act by threatening them with loss of business, new
buses, the services of the manager who brought in that new
business, and loss of employment if they sought and se-
cured union representation.
(b) Interfering with the right of its employees to engage
in protected, concerted activity in violation of Section
8(a)(1) of the Act by discharging them for refusing to cross
a picket line established at its premises.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Henry Sanford, Ralph Kaui, Ross Iho, Michael
Akamine, Jay Agao, James Louis, Paul Iwata, G. Lane
Kaaiai, Ronald Sai, Garrett Wong, Miles Fonseca, and
Eric Kama immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority and
other rights and privileges.
(b) Make Henry Sanford, Ralph Kaui, Ross Iho, Mi-
chael Akamine, Jay Agao, James Louis, Paul Iwata, G.
Lane Kaaiai, Ronald Sai, Garrett Wong, Miles Fonseca,
and Eric Kama whole for any loss of earnings they may
have suffered as a result of their discharges, as provided in
the section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its place of business in Honolulu, Hawaii,
copies of the attached notice marked "Appendix."49 Copies
of said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by Respondent's rep-
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and reconnmended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
'9 In the event that 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."
598
RAINBOW COACHES
resentative. shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
599