Top of Waikiki, Inc.

National Labor Relations Board - Board Decisions

May 21, 1969

176 N.L.R.B. 76 (N.L.R.B. 1969)

76 DECISIONS OF NATIONAL
Top of Waikiki , Inc. and Hotel , Restaurant
Employees & Bartenders Union , Local 5,
AFL-CIO. Case 37-CA-526
May 21, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On December 3, 1968, Trial Examiner William E.
Spencer issued his Decision in the above-entitled
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices
alleged in the complaint and recommending that it
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter
Respondent filed exceptions to the Decision and a
supporting brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Top of Waikiki, Inc.,
Honolulu, Hawaii, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
IT IS HEREBY FURTHER ORDERED that the
complaint be dismissed insofar as it alleges that
Respondent violated Section 8(a)(1) and (3) in the
discharge and refusal to reinstate Paul Nieblas.
'We agree that when Respondent disciplined and later discharged Kochi,
Leslie , and Yamaguchi , it interfered with, restrained , and coerced its
employees in the exercise of their protected rights under Sec. 7 of the Act,
and thus violated Sec . 8(a)(1) of the Act. In these circumstances, and as
the remedy would be the same in and event, we find it unnecessary to
consider whether Respondent 's actions in this regard also violated Sec.
8(a)(3) of the Act.
LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner: Pursuant to a
charge filed January 4, 1968, a first amended charge filed
June 7, 1968, and a second amended charge filed July 16,
1968, by the Union herein, the General Counsel of the
National Labor Relations Board, the latter hereinafter
called the Board, issued his complaint dated July 17, 1968,
alleging that the Respondent herein engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called
the Act. Respondent in its duly filed answer denied that it
had engaged in any of the alleged unfair labor practices.
Pursuant to due notice, a hearing in this matter was
held before me in Honolulu, Hawaii, on August 27, 28,
29, 1968, with all parties represented and participating.
Upon the entire record in the case, my observation of
the witnesses, and with consideration of the briefs filed
with me by the General Counsel and the Respondent,
respectively, I make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Respondent, Top of Waikiki, Inc., is a Hawaii
corporation with an office and place of business in
Honolulu, Hawaii, where it is engaged in the operation of
a restaurant and bar called Top of Waikiki, and where in
the course and conduct of its business during the past
year, it received a gross revenue in excess of $500,000
from the sale of food and beverage products.
11. THE LABOR ORGANIZATION
Hotel, Restaurant Employees & Bartenders Union,
Local 5, AFL-CIO, the Charging Party and the Union
herein , is a labor organization within the meaning of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's Operations
As accurately stated in Respondent's brief, the Top of
Waikiki is a restaurant operation in the Waikiki Business
Plaza Building in Honolulu. The operation consists of a
revolving restaurant on the 21st floor of the building. On
the 20th floor of the building is the food preparation area
as well as the employees' room and employees' locker
area along the hall. On the 19th floor is the Waikiki Lau
Yee Chai Plaza Room, hereinafter called the Plaza
Room, which is a banquet room available for special
parties, open every night except for Mondays. The Top of
Waikiki is operated everyday for lunch and dinners. On
the ground floor level of the Business Plaza Building is a
coffee shop known as "Food Haven" located near the
entrance to the elevator area. This coffee shop is owned
by operators independent of Respondent.
At the Top of Waikiki there are normally four to five
waitresses in each of four sections or stations and each
station also has a busboy making the normal complement
on the floor of 24 employees excluding the bartenders.
The Plaza Room when operating as a restaurant normally
has four employees. When there are large banquets then
176 NLRB No. 6
TOP OF WAIKIKI
additional girls who are on an "on-call" basis are called
in. The Respondent maintains a permanent list of on-call
girls from which it fills its requirements as they arise.
Respondent's managerial staff is composed of Patricia
Chang, manager; Lillian Lee, assistant manager;
Ellsworth Wong, assistant manager; and Jane Look, head
waitress, all admittedly supervisors within the meaning of
the Act. William Mau is the controlling stockholder of
Respondent's operations.
B. Organizational Activities
The Union began organizing Respondent's employees
about the middle of December 1967. Michael Leslie, a
waiter, a prime mover in organizational activities,
obtained some 25 signatures to union authorization cards
prior to January 1, 1968. David Kochi, a waiter captain,
obtained some 10 signatures to cards during the same
period. Whether Respondent had knowledge of these
activities at any time prior to December 31, 1967, is a
matter to be resolved.
C. The Basic Issues
The principal issues are whether the Respondent
disciplined and subsequently discharged its employees
David Kochi, Michael Leslie, and Dwight Yamaguchi,
because of their union and/or protected concerted
activities; discriminated against its employees Carol
Kamalii, Anthony Chang, Patricia-Anne Boyd, Warren
Wong, Paul Nieblas, Larry Higa, Sharon Stockier, and
Jean Lok, because of their activities in going on strike in
support of their fellow employees named above; and
discriminated against Irene Krausnick and Charles Jones
because of Respondent's belief that they had engaged in
union and/or concerted activity. Subsidiary issues are
whether the activities engaged in by the aforesaid
employees were protected union or concerted activities,
and whether certain of these employees did in fact quit
their employment with the Respondent. The employees
named above, with certain exceptions, will subsequently be
referred to by their surnames.
D. The Dispute Over the Pooling of Tips
The issues herein arose out of a dispute between the
Respondent and certain of its employees concerning the
pooling of tips. Normally and customarily the tips are
pooled by the employees assigned to each station, and are
pooled and distributed by the employees themselves at the
end of each work shift. On December 31, 1967, Head
Waitress Look advised Kochi, a waiter captain - a
waiter captain was assigned to each station - that the
tips received that night were to be turned over to
Respondent's cashier and that the tips thus pooled would
include employees of the Plaza Room who would share
with employees of the Top of Waikiki in their
distribution. Certain employees normally assigned to the
Top of Waikiki were assigned to the Plaza Room on this
single occasion. Kochi relayed these instructions to
members of his station including Leslie, Yates, and Nancy
Miyahira, who, together with Kochi, objected to this
change in the method of tip pooling and distribution, as
did some others as word of management's directive
spread. Manager Chang was made aware on the evening
of December 31 that there was some dissatisfaction being
expressed among the employees, and on January 1, 1968,
called a meeting of staff members and waiter captains and
77
questioned the latter concerning the identity of employees
who had complained about the changed method of tip
pooling and distribution. Waiter Captain Lola Miyagi
named Yamaguchi as one of these, and Kochi named
himself, Leslie, Yates, and Miyahira.
E. Management's Action in Disciplining the Known
Dissidents
At the conclusion of the discussion at this meeting,
Manager Chang said that perhaps management should
relieve or discharge the employees who were "grumbling"
about the changed method of tip distribution, whereupon
Assistant Manager Wong said that he thought discharge
would be too severe and suggested "suspension" as a
sufficient penalty. Following the close of this meeting,
Chang authorized Wong to place Kochi, Yamaguchi,
Leslie, and Yates on call, and Wong was instructed to
inform Head Waitress Look to so notify the affected
employees. She did.
On January 2, Chang met with the managerial staff and
it was then decided to call a meeting of employees on the
following day for the purpose of advising them of
management's position. The employees were notified and
the meeting was held as scheduled in the Plaza Room on
the morning of January 3. Kochi, Yamaguchi, and Leslie
were on hand to attend the meeting but were told by
Look, prior to the meeting, that their attendance was not
wanted by management. When Chang was advised of their
presence in the building, she instructed Wong to
investigate. Having placed these employees on call, she did
not expect that they would show up for the meeting, and
inasmuch as the meeting was for the primary purpose of
explaining to the employees why they had been placed on
call she did not want them in attendance. While still in the
building, the three employees were approached by Wong
who told them that they were discharged. Wong testified
that he asked them who had authorized them to attend the
meeting, and when they stood mute, he told them that
"because there was no authorization given to them to
attend this meeting . they were terminated as far as
[he] was concerned." He further testified that he "got
kind of worked up", and thought these employees were
letting him down, - apparently because he had previously
prevailed on Chang not to suspend them but to place them
on call , a lesser penalty. "They were good workers," he
testified, "and this is why I went to bat for them." That
he had the authority to discharge is not questioned.
F. The Strike
At the meeting with employees in the Plaza Room on
the morning of January 3, Manager Chang explained
Respondent's position on the pooling and distribution of
tips on New Year's Eve, and was joined in her remarks by
Respondent's controlling stockholder, Mau. In a question
and answer period which ensued, several employees
protested the singling out of four employees for
disciplining when other employees had also objected to the
change in pooling arrangements. Miyahira said she felt
the pooling was wrong and she should be subjected to the
same disciplinary action. Chang testified that she told
Miyahira and Krausnick that if they wanted to place
themselves in the same position with the disciplined boys,
they should feel free to go and the door was open.
After the meeting was adjourned and Respondent's
representatives, with the exception of Look, had left the
room, there was discussion among a group of employees
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remaining, including Kamali ►, Boyd, Mae Doi, Lok, June
and Warren Wong, as to what action if any should be
taken with respect to Respondent's disciplining of the four
employees. As these employees prepared to leave, Look
inquired, "Are you walking out?" and one of them
answered, "Yes." Chang also had individual conversations
with several of the employees, including Miyahira,
Kamalii, Boyd, June Wong, Lok, and Krausnick, who
indicated, for one reason or another, that they would not
report for work.
Immediately following the Plaza Room meeting, a
group of the disaffected employees met with Kochi, Leslie,
and Yamaguchi in the Food Haven on the ground floor of
the building and there discussed measures to be taken to
protest the firing of these three employees. It having been
decided to seek the Union's aid and direction in the
matter , the employees went to union headquarters where
they met with the Union's president, Arthur A. Rutledge.
As a result of this conference, and a later one the same
day, Rutledge addressed two letters to Respondent's
Chang, the first a claim of majority representation and a
request to bargain, the second, delivered to Chang about
8:30 p.m., bearing this text:
Our Union requests unconditional reinstatement of
all employees of the Top of Waikiki who walked off the
job today and all employees who did not show up for
work as the result of the dispute generated by
management's request that tips be pooled for New
Year's Eve.
We understand that as a result of your questioning
your waiter captains you suspended the following
employees:
Michael Leslie, David Kochi, Dwight Yamaguchi,
Brad Yates, and Charles Jones,
from work. We ask, also, that they be unconditionally
reinstated.
Management took the position with respect to the
employees who walked off the job on the morning of
January 3, that they had quit. Accordingly, reinstatement
to the jobs they held at the time they walked off was not
offered them, though Manager Chang testified that had
they reported on the evening of January 3, they would
have been put to work, testimony somewhat at variance
with her further testimony that when Anthony Chang on
delivering Rutledge's first letter to her, asked if he was
working that night, she replied, "Tony, you walked out at
lunch. As far as I'm concerned that is insubordination and
you are out."
G. Conclusions With Respect to Discrimination
Because of Union Activities
There is some evidence that Respondent, through its
supervisory staff, was aware of its employees'
organizational activities prior to New Year's Eve but I
consider it too slight to attribute to it any part of
Respondent ' s initial action in disciplining and later
discharging Kochi , Leslie , and Yamaguchi . Respondent
did of course learn of its employees' union activities upon
receiving a call from Rutledge, and the two letters from
him on January 3, the first of which was delivered by
hand to Manager Chang about 2 o'clock on the afternoon
of that date, but the discharges had already occurred at
that time. Assuming company knowledge of union
activities prior to the discharges, I still would not find that
they were predicated on that knowledge because it is clear
that it was the three employees' expressed opposition to
the changed method of distributing tips, and nothing else,
that caused their discharge.
H. Conclusions With Respect to Concerted Activities
Respondent argues vigorously that Kochi, Leslie, and
Yamaguchi, as well as the employees who later left their
jobs, acted individually in their respective protests over the
pooling of tips or the treatment accorded these three
employees, as the case may be, and, therefore, that the
action taken by them was not "concerted" within the
meaning of the Act.
First, as to Kochi, Leslie and Yamaguchi. It is clear
that employee reaction, some of it hostile, to
Respondent's change in the method of distributing tips on
New Year's Eve, came swiftly as employees learned of it,
and Kochi, Leslie and Yamaguchi, among others, openly
voiced their opposition in conversations occurring between
employees, sometimes in the presence of managerial
representatives. True, there was no organized protest -
there was hardly time for that -- no formal meetings, no
designation of spokesmen, but it is equally true that no
one of these employees stood alone in his voiced reaction
to the company directive. Basicly, it was that other
employees agreed with these three in their opposition to
the company directive and felt that the three had been
unfairly singled out for disciplinary action, that caused the
walkout.
It seems to me that when in agreement among
themselves , no matter how informally, two or more
employees assert a position in opposition to a company
rule or proposal affecting their wages or working
conditions, a position which relates to and affects an
entire group , they are properly held to have acted
concertedly within the meaning of the Act. Expressions of
opinion and statements of position almost always precede
an organized effort on the part of employees to obtain
redress of grievances, real or imagined, and to extend the
protection of the Act only after "formalized" action has
been taken, would be to cut off such action at its source
and thus to render it futile. The protection of the Act
knows no such limits. As a matter of fact, a single
employee has been held to have engaged in concerted
activities when he single-handedly circulated a petition in
a matter which related to the working conditions of a
group. Salt River Valley Water Users' Association v.
N.L.R.B.. 206 F.2d 325 (C.A. 9), enfg. 99 NLRB 849.
The same reasoning, I think, applies in the case of the
employees who left their jobs in protest of the discharges
of Kochi, Leslie, and Yamaguchi. It is true that not all of
them told Manager Chang or other supervisory personnel
that they were refusing to work because of the discharges,
and some gave reasons other than that for not reporting
for work. Higa, for instance, left for a doctor's
appointment and at the time of his leaving intended to
return to work on the dinner shift. Tony Chang didn't
"like this wildcat sort of thing, because it wasn't
organized," and testified that it was only at the meeting at
the Food Haven that it was decided to make the walkout
a "group" activity. The error in Respondent's reasoning,
as I see it , is that it would bisect the employees' activity
by drawing a line between the initial walkout and what
followed almost immediately thereafter in the Food Haven
and, later, at Rutledge's office, where what began as a
spontaneous protest took on direction and cohesiveness.
By thus bisecting the walkout activity, Respondent would
deny it the element of concertedness and pin the label of
"quit" on those who initially left their jobs.
TOP OF WAIKIKI
Obviously, when these employees left their jobs they
had no plan of action in mind. Inexperienced in
organizational matters they were doubtless confused and
uncertain as to a future course of action. But they acted in
concert, after discussions among themselves and with
management, and in protest over the discharges. And, in
any event, their entire course of action on January 3, and
not some segment of it, is the determinative factor. It
matters not that Higa initially left to keep a doctor's
appointment and at the time of his initial leaving intended
to return for the night shift, or that Tony Chang initially
conceived of the walkout as a "wildcat sort of thing."
They both became a part of the protesting group and are
not properly viewed, as Respondent would have us view
them and all others who initially walked out, as "quits."
All employees who engage in a strike or other concerted
action which takes them away from their jobs, may be
said to have "quit" for the duration of the said activities,
and it is not unusual for an employer to defend any
discriminatory action taken with respect to such
employees on the ground that they had quit and,
therefore, no longer had employee status. But it was long
ago decided that employees engaging in a strike or other
protected concerted activities do not thereby lose their
status as employees.
I. Conclusions on Whether the Concerted and/or
Union Activities Were "Protected"
I have not thus far gone into the merit or lack of it in
Respondent's directions for the pooling of tips on New
Year's Eve which gave rise to the controversy, and I do
not intend to do so now. Normally, the employees handled
their own tip money and normally tips from patronage of
the Top of Waikiki were not pooled with tips from the
Plaza Room. Admittedly, New Year's tips in the Plaza
Room usually were below tips received by employees of
the Top of Waikiki. Respondent had its own reasons for
changing the method of the pooling and distribution of
tips and I am not about to say they were not good
reasons. On the other hand, employees of the Top of
Waikiki had their reasons for objecting to having their
tips pooled with employees of the Plaza Room and
distributed through the company's cashier , and I am not
about to say they were not good reasons . All that is
needful for me to say in this matter is that a controversy
arose out of Respondent's action and it was a controversy
of substance.
The employees not unreasonably regarded tips as a part
of Respondent's wage structure. Respondent's Mau at the
meeting with employees on January 3, referring to a
prepared chart, estimated that tips annually amounted to
$25,000 for the employees of each station, or
approximately $450 to $500 a month for each employee.
Whether or not this estimate was accurate is beside the
point: the point is that tips admittedly constituted a very
substantial part of the remuneration each employee
received for his services ru Respondent 's employ. It
follows, as indeed it must, that concerted activities with
respect to the pooling and distribution of tips falls within
the protected category inasmuch as it was for "mutual aid
or protection" within the meaning of Section 7 of the Act.
When, therefore, Respondent disciplined and later
discharged Kochi, Leslie, and Yamaguchi for having
engaged in the said concerted and/or union activities, it
interfered with, restrained, and coerced its employees in
the exercise of their rights under Section 7 of the Act, in
violation of Section 8(a)(1) and (3). It is equally clear the
79
group of employees who left their jobs, or failed to report
for work , from the time and date of the walkout had the
status of unfair labor practice strikers inasmuch as they
acted concertedly in protest of Respondent 's unfair labor
practices , and, accordingly , were entitled to reinstatement
immediately upon application .' They were not required to
repeat the request contained in Rutledge 's second letter.
J. The Application for and Denial of Reinstatement
The Union in the first letter it dispatched to Chang on
January 3, claimed majority representation and requested
bargaining. Its second letter on the same date made
further reference to bargaining and also requested
reinstatement "of all employees of the Top of Waikiki
who walked off the job today and all employees who did
not show up for work as the result of the dispute
generated by management's request that tips be pooled for
New Year's Eve." We are not here concerned with the
Union's bargaining request or whether such request was or
was not valid. A labor organization without attaining
majority status may serve as the agent for employees who
have designated it their agent and the Respondent in
honoring its reinstatement request would in no way have
been construed to have recognized it as the bargaining
representative of all its employees in an appropriate unit.
In short, the reinstatement request was valid and the
Respondent, under the facts of this case, was bound to
honor it. It failed and refused to do so, and thereby
subjected itself to the remedial order herein.
The reinstatement request, with exceptions previously
noted, was in general language but there does not appear
to be any question that all of the employees named in the
complaint were to Respondent's knowledge and/or belief
involved in the walkout, with the possible exception of
Jones and Nieblas. Jones was not on duty on January 2
and did not participate in the events of January 3. He
was, however, specifically named in the Union's letter of
January 3 demanding reinstatement of the striking
employees. He reported at the Top of Waikiki on January
5 to pick up his check and asked if he was scheduled to
work that night. The reply was in the negative. In
response to his call on January 6, he was told to report to
work but when he did so he was told by Chang that he
had been replaced for that evening because he had not
personally contacted Look about coming to work. He left
after working some five minutes. He worked the following
ten days but only about 22 hours a week whereas he had
previously worked about 38 hours. Thereafter, he was put
back on regular schedule. Respondent offered no
satisfactory explanation for what otherwise appears to
have been discriminatory treatment of this employee, and
the only persuasive reason I can find on this record is that
Respondent reasonably assumed because of the
appearance of his name on Rutledge's reinstatement
request, that he was one of the protesting group. If this
was Respondent's motivation in denying him the same
hours of employment as previously, and I think it was, its
conduct with respect to him was as violative of the Act as
if he had actually walked off his job with the other
employees.
A question was also raised with respect to Stockier.
Chang testified that she was told by Look that Stockier
'It may be argued with persuasiveness that Respondent discharged these
employees, or certain of them, as they walked out, and , therefore, that
they are properly treated as dischargees , but the matter is fairly academic
in view of Rutledge's prompt reinstatement demand.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was quitting for reasons of a personal nature. Look,
though testifying for the Respondent, made no mention of
such a conversation with Stockier, and Stockier herself
testified that she never informed anyone that she was
quitting. From this it appears to me that she is properly
included in a reinstatement order. This is true, also, of
Warren Wong.
Chang testified that when on January 4 Wong called in
to ask if he was on schedule - as he normally would have
been - Look, who was on the same telephone line,
replied, "No, you are not on schedule. You didn't report
last night to work," to which Wong responded that he
quit. Look, though testifying, did not corroborate Chang.
Wong denied that he told anyone in management that he
quit. He testified that on walking out he had a
conversation with Chang in which Chang asked him if he
was going to work and he replied, "No." He admitted
that he also told her that he "didn't need the money", but
testified that in saying this he had reference to the tips.
Had he actually intended to quit when he walked out, or
later, he would hardly have called in on January 4 to
inquire if he was scheduled to work. Chang may very well
have equated his telling her that he was not going to work
with quitting his job, it apparently being her position that
all employees who did not report for work on January 3
quit their employment.
Nieblas, one of the alleged discriminatees, presents a
more difficult problem. He was not specifically named in
Rutledge's reinstatement demand, as was Jones, and he
did not actually participate in the walkout. He was,
however, present with the group at the Food Haven. He
went there when he was waked and told by his roommate,
Leslie, about the meeting . He testified, "As for me, I
would have just went back to sleep, but I said, `Well, I
better go down there."' He also went with the group to
Rutledge's office, but did not recall much of what
happened there because all he "was thinking of was
getting - finding myself another job." He did not report
for work that day, thinking that because of his association
with Leslie, "the instigator of it all" he would "probably
get terminated." He did report on January 4 to see if he
was on schedule but apparently was unable to see Look.
He admitted, however, that in a telephone conversation
with Look on that date he told her, in substance, "I quit.
I don 't want to work there any more . I know you want
your keys. I'll take them back to you." (Apparently in his
janitorial capacity he had certain keys to Respondent's
premises in his possession and these he returned on
January 4.) At another point, Nieblas testified, "I was
willing to work there, stay there. In fact, I wanted to."
Because of his failure to report for work on January 3,
Respondent may well have considered Nieblas one of the
striking group, and it may well be that when he told Look
he quit, that he did not want to work there anymore, he
was prompted by the belief that he could not, in any
event, obtain reinstatement. He doubtless knew that others
participating in the walkout had not been returned to their
regular schedules of work. It is by no means clear,
however, that anyone in authority told him that he was
not scheduled to work on January 4 and thereafter, and
once he had volunteered in such positive terms that he had
quit, an offer of reinstatement should hardly have been
expected.
I shall recommend dismissal of the complaint with
respect to Nieblas, and find with respect to all others
named in paragraph VIII of the complaint, Krausnick,
Kamalii, Anthony Chang, Boyd, Warren Wong, Higa,
Stockier, Lok, and Jones , that on and after January 3,
1968, with respect to all of them except Jones, and on and
after January 5 with respect to Jones, that the Respondent
denied them reinstatement to the positions they held prior
to the walkout on January 3, in violation of Section 8(a)(1)
and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
The Respondent having discharged certain of its
employees because they engaged in union and concerted
activities' and having refused reinstatement to certain
others of its employees for the same reason , it will be
recommended that the Respondent offer David Kochi,
Michael Leslie, Dwight Yamaguchi, Carol Kamalii,
Anthony Chang, Patricia-Anne Boyd, Warren Wong,
Larry Higa , Sharon Stockier, Jean Lok, Irene Krausnick,
and Charles Jones, immediate reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and make them whole for any loss of pay suffered because
of the discrimination against them , by payment (1) to
Kochi, Leslie, and Yamaguchi of a sum of money equal to
that which they normally would have been paid in
Respondent's employ from the date of their respective
discharges on January 3, 1968, to the date of
Respondent's offer of reinstatement; and (2) by payment
to Kamalii , Anthony Chang, Boyd, Warren Wong, Higa,
Stockier, Lok, Krausnick, and Jones of a sum of money
equal to that which they normally would have been paid
in Respondent's employ, with respect to all except Jones,
from the date of the letter requesting their reinstatement
dated January 3, 1968, and with respect to Jones, from
January 5 when he first reported for reinstatement, to the
date of Respondent's offer of reinstatement; (3) less the
net earnings , if any, of all the foregoing employees,
respectively, during the said period. Backpay shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 2$9, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and a
business affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging its employees David Kochi , Michael
Leslie , and Dwight Yamaguchi, and refusing reinstatement
'What started as concerted activities was converted into union activities
as well when the discharged and/or striking employees had recourse to the
Union , but whether the employee activities found herein be regarded as
union activities or solely concerted activities , the remedy is the same
TOP OF WAIKIKI 81
to its employees Carol Kamalii, Anthony Chang,
Patricia-Anne Boyd, Warren Wong, Larry Higa, Sharon
Stockier, Jean Lok, Irene Krausnick and Charles Jones,
because of their concerted and uriion activities, thereby
discouraging membership in a labor organization,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
4. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. It has not been proven that Respondent discharged
its employee, Paul Nieblas, or refused him reinstatement,
because of his union or protected concerted activities.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to
Section 10 (c) of the Act, as amended , it is hereby ordered
that Respondent , its officers , agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Discouraging membership of any employee in the
Union, or any other labor organization, by discharging or
in any other manner discriminating against any employee
with regard to his hire or tenure of employment, or any
term or condition of employment, except as authorized in
Section 8(a)(3) of the Act.
(b) In any other manner interfering with, restraining, or
coercing its employees in the right to self-organization, to
form their own labor organization, to join or assist the
Union, or any other labor organization, to bargain
collectively with representatives of their own choosing, and
to engage in concerted activities for the purpose of
collective bargaining or for other mutual aid or
protection, or to refrain from any or all such activities
except to the extent that such right may be affected by
agreement requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer David Kochi, Michael Leslie, Dwight
Yamaguchi, Carol Kamalii , Anthony Chang,
Patricia-Anne Boyd, Warren Wong, Larry Higa, Sharon
Stockier, Jean Lok , Irene Krausnick, and Charles Jones
immediate and full reinstatement to their former or
equivalent positions' and make them whole for any loss of
pay they may have suffered as a result of the
discrimination against them , in the manner set forth above
entitled "The remedy."
(b) Upon request make available to the Board or its
agent, 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 Recommended Order.
(c) Notify any of the said employees if presently serving
in the Armed Forces of the United States of their rights
of reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended.
(d) Post at its place of business in Honolulu, Hawaii,
copies of the attached notice marked "Appendix."' Copies
of said notice on forms provided by the Regional Director
'Jones is included to insure that his reinstatement is without prejudicial
restrictions.
for Region 20 shall, after being duly signed by the
Respondent's authorized representative, be posted by the
Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt of this
Decision, what steps it has taken to comply herewith.'
'In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
'In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in Hotel,
Restaurant Employees & Bartenders Union, Local 5,
AFL-CIO, or any other labor organization, by
discharging any of our employees because of their
concerted or union activities or in any other manner
discriminate in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
the above-named Union, or any other labor
organization, to bargain collectively through
representatives of their own choosing, or to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer immediate and full reinstatement to
David Kochi, Michael Leslie, Dwight Yamaguchi,
Carol Kamalii, Anthony Chang, Patricia-Anne Boyd,
Warren Wong, Larry Higa, Sharon Stockier, Jean Lok,
Irene Krausnick, and Charles Jones and will make
them whole for any loss of pay they may have suffered
because of the discrimination against them.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named, or any other labor organization. We will
not discriminate in regard to hire or tenure of
employment, or any term or condition of employment,
against any employee because of membership in or
activity on behalf of any labor organization.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TOP OF WAIKIKI , INC. from the date of posting and must not be altered, defaced,
(Employer ) or covered by any other material.
If employees have any question concerning this notice
Dated By or compliance with its provisions, they may communicate
(Representative ) (Title) directly with the Board's Subregional Office, 1311
Kapiolani Boulevard, Suite 308, Honolulu, Hawaii 96814,
This notice must remain posted for 60 consecutive days Telephone 588-797.