Turtle Bay Resorts

National Labor Relations Board - Administrative Judge Opinions

May 24, 2006

37-CA-006601 (N.L.R.B. May. 24, 2006)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA

OAKTREE CAPITAL MANAGEMENT, LLC
and TBR PROPERTY, LLC, a SINGLE
EMPLOYER, d/b/a TURTLE BAY RESORTS,
and BENCHMARK HOSPITALITY, INC.

and Cases 37–CA–6601–1
37–CA–6642–1
37–CA–6669–1
37–CA–6691–1
UNITE HERE! LOCAL 5 37–CA–6730–1
37–CA–6753–1
37–CA–6756–1
37–CA–6768–1
37–CA–6816–1
37–CA–6826–1
37–CA–6827–1
37–CA–6835–1
37–CA–6840–1
37–CA–6875–1
37–CA–6877–1
37–CA–6878–1

TABLE OF CONTENTS
Page
DECISION…………………………………………………………………………….. 2
Statement of the Case……………………………………………………………….. 2
Findings of Fact………………………………………………………………………. 3
I. Jurisdiction…………………………………………………………………………. 3
II. Joint and Single Employer……………………………………………………….. 4
III. Alleged Unfair Labor Practices…………………………………………………. 7
A. Background……………………………………………………………………….. 7
B. Rules and regulations governing Turtle Bay’s employees…………………… 9
1. February 12, 2004………………………………………………………………… 10
2. February 14, 2004………………………………………………………………… 12
3. February 18, 2004………………………………………………………………… 13
4. March 25, 2004…………………………………………………………………… 14
5. April 2, 2004………………………………………………………………………. 17
6. April 17, 2004……………………………………………………………………… 18
7. May 4, 2004……………………………………………………………………….. 18
8. May 6 and 24, 2004………………………………………………………………. 19
9. June 2 and 7, 2004……………………………………………………………….. 21
10. June 11, 2004……………………………………………………………………. 22
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11. June 12, 15, 17, and 22, 2004…………………………………………………. 23
12. August 6, 2004…………………………………………………………………… 24
13. September 23, 2004…………………………………………………………….. 27
14. October 22, 2004………………………………………………………………… 27
15. January 19, 2005……………………………………………………………….. 27
16. January 27, 2005……………………………………………………………….. 28
17. January 28, 2005………………………………………………………………… 29
18. In and after January 2005……………………………………………………… 29
19. March 5, 2005…………………………………………………………………… 31
D. Discipline of employees…………………………………………………………. 31
1. May 30, 2005……………………………………………………………………… 31
2. June 10, 2005……………………………………………………………………... 32
3. July 1, 2005………………………………………………………………………... 35
E. The Union’s requests for information…………………………………………… 41
IV. Analysis…………………………………………………………………………… 42
A. Requests for information – Complaint, paragraphs 7, 8, and 9……………… 42
B. Rules and regulations governing Turtle Bay’s employees
Complaint, paragraph 24…………………………………………………………
43
C. Restricting the Union’s access to Turtle Bay and prohibiting the
Collection of dues – Complaint, paragraphs 11, 12, 16, 17, 18, 21, 22…….

47
D. Surveillance – Complaint, paragraphs 13, 14, 15, 19, 20……………………. 54
E. Disparagement and threat – Complaint, paragraph 21………………………. 57
F. Threat of closure – Complaint, paragraph 26…………………………………. 58
G. Validation of union representatives’ parking at Turtle Bay –
Complaint, paragraph 22………………………………………………………..
59
H. Discipline of Jeannie Martinson – Compaint, paragraph 26…………………. 61
I. Suspension of Timothy Barron – Complaint, paragraph 26………………….. 63
J. Termination of Mark Feltman – Complaint, paragraph 26……………………. 64
Conclusions of Law………………………………………………………………….. 69
Remedy……………………………………………………………………………….. 70
ORDER……………………………………………………………………………….. 71
APPENDIX

ii
JD(SF)-23-06
Honolulu, Hawaii
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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA

OAKTREE CAPITAL MANAGEMENT, LLC
and TBR PROPERTY, LLC, a SINGLE
EMPLOYER, d/b/a TURTLE BAY RESORTS
and BENCHMARK HOSPITALITY, INC.

and Cases 37–CA–6601–1
37–CA–6642–1
37–CA–6669–1
37–CA–6691–1
UNITE HERE! LOCAL 51 37–CA–6730–1
37–CA–6753–1
37–CA–6756–1
37–CA–6768–1
37–CA–6816–1
37–CA–6826–1
37–CA–6827–1
37–CA–6835–1
37–CA–6840–1
37–CA–6875–1
37–CA–6877–1
37–CA–6878–1

Peter S. Ohr, Esq. and Meredith A. Burns, Esq.,
of Honolulu, Hawaii, for the General Counsel.
Daniel Berkley, Esq. and Mark S. Posard, Esq.
(Gordon and Rees, LLP), of San Francisco,
California, for the Respondents.
David A. Sgan, Esq. (Gill & Zukeran) of Honolulu,
Hawaii, for the Charging Party.

1 The General Counsel amended the caption in his posthearing brief and asserted that he
was amending the caption to reflect the disaffiliation of UNITE HERE! from the AFL–CIO. The
General Counsel should be aware, at this stage of the proceedings, that it is not his prerogative
to unilaterally make changes to the caption. A motion should have been filed requesting
permission to change the caption and explaining the reasons for the request. Nevertheless, the
parties have made no objection to the General Counsel’s change, which, in any event, does not
affect the substantial rights of the parties. Accordingly, while disapproving of the rather cavalier
manner in which it was done, I have amended the caption of the case.
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DECISION

Statement of the Case

JOSEPH GONTRAM, Administrative Law Judge. This case was tried in Honolulu, Hawaii,
during the period July 19–29 and October 18–26, 2005. The charges, which were amended
several times, were filed by Unite Here! Local 5 (the Union or the Charging Party) between
February 24, 2004 (Case 37–CA–6601–1) and June 15, 2005 (Case 37–CA–6877–1). A
consolidated complaint was issued on August 31, 2004. The complaint was amended three
times before the hearing, and a Fourth Amended Complaint (the complaint) was orally
submitted and granted during the hearing.

At the hearing, the General Counsel submitted an oral motion to amend the caption to
substitute “TBR Property, LLC” for “TBR Properties, LLC.” This motion was granted. The
Respondents contend that this amendment to the caption denied them due process. This
contention is rejected. The first consolidated complaint and the first amended complaint in this
case listed “TBR Property, LLC” in the caption. (GC Exh. 1(kkk) and (mmm)). “TBR Property,
LLC” filed an answer to the first amended complaint. (GC Exh. 1(rrr)). The second amended
complaint did not list “TBR Property, LLC” in the caption, but instead listed “TBR Properties,
LLC” in the caption. (GC Exh. 1(zzz)). However, the correct designation of “TBR Property”
remained in the allegations in the complaint. Moreover, “TBR Property, LLC” answered the
second amended complaint, and in the caption of its answer substituted its correct name, “TBR
Property, LLC” for the typographical error in the caption of the second amended complaint. (GC
Exh. (cccc)). The General Counsel’s third amended complaint continued the typographical error
in the caption by listing “TBR Properties, LLC” instead of “TBR Property, LLC.” (GC Exh.
1(eeee)). “TBR Property, LLC” notified the General Counsel that its answer to the second
amended complaint satisfied its requirement to answer the third amended complaint. (GC Exh.
1 (kkkk)). Of course, “TBR Property, LLC” was not required to answer the complaint if it were
not named as a party in the caption. At no time did “TBR Property, LLC” ever alert the General
Counsel to the typographical error or indicate confusion from the typographical error. Moreover,
“TBR Property, LLC” was consistently and correctly named in the complaints’ allegations. The
permission granted to the General Counsel to amend the caption to correct the typographical
error has been reconsidered and is affirmed.

The events giving rise to the allegations in the complaint occurred at the Turtle Bay hotel
and resort in Kahuku, Hawaii, on the island of Oahu. The complaint alleges that Respondent,
Oaktree Capital Management, LLC (Oaktree) and Respondent, TBR Property, LLC (TBR
Property) constitute a single integrated business enterprise and a single employer under the
National Labor Relations Act (the Act). The complaint alleges that Oaktree, TBR Property, and
Respondent, Benchmark Hospitality, Inc. (Benchmark) are a successor to Hilton Hotels
Corporation, Inc., which had operated and managed the property from 1998 to 2001 under a
contract with Oaktree. The complaint also alleges that Oaktree, TBR Property, and Benchmark
are joint employers of the employees at the Turtle Bay hotel and resort.

The unfair labor practices alleged in the complaint are that the Respondents (1) violated
Section 8(a)(1) and (5) of the Act by failing and refusing to provide requested information to the
Union and by preventing the Union on numerous occasions from performing its duties as the
exclusive collective-bargaining representative of Turtle Bay’s employees; (2) violated Section
8(a)(1) of the Act by interfering on numerous occasions with Turtle Bay’s employees in the
exercise of their rights under Section 7 of the Act; and (3) violated Section 8(a)(1) and (3) of the
Act by unlawfully disciplining three employees because of those employees’ protected and
concerted activities.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondents, I make the
following

Findings of Fact

I. Jurisdiction

Oaktree Capital Management, LLC (Oaktree) acquired ownership and control of Turtle
Bay resort in 2000. This ownership and control is maintained through several intermediate
companies, including Turtle Bay Holding, LLC (Turtle Bay Holding), TBR Property, LLC (TBR
Property), and Kuilima Resort Company (Kuilima). TBR Property is a wholly owned subsidiary of
Kuilima, and it leases the resort property from Kuilima. In turn, TBR Property has contracted
with Benchmark Hospitality, Inc. (Benchmark) to manage the resort.

The Turtle Bay resort is located on a peninsula in Kahuku on the northwestern coast of
Oahu. The access road leading to the resort from the Kamehameha Highway is approximately
½ mile in length and has an attended kiosk close to the highway. The resort consists of a 487-
room hotel, cottages, two golf courses, riding stables, several restaurants, and accompanying
facilities. The resort has approximately 535 employees, including approximately 360 union
members.

The General Counsel subpoenaed documents and persons from Oaktree and
Benchmark for the hearing. The subpoenaed documents included documents relating to the
operation, management, and business of these Respondent companies. In general, the
Respondents did not comply with these subpoenas nor did the named persons appear at the
hearing pursuant to the subpoenas.

The Respondents acknowledge that the gross revenues of the resort exceeded
$500,000 during 2004. In addition, the resort purchases and receives goods and materials in
excess of $5,000, which originate from points outside the State of Hawaii. The Respondents
object that the interstate commerce amount was obtained from the unreliable testimony of
Timothy Vandeveer and George Cox, both of whom are employees and union stewards. First,
such a less-than-ideal method of proving commerce is acceptable, if not necessary, in cases
like the present where the Respondents have refused to produce subpoenaed evidence relating
to jurisdiction. See J.E.L. Painting and Decorating, 303 NLRB 1029 (1991). Second, Vandeveer
and Cox were credible witnesses notwithstanding their positions as stewards.

Establishing these jurisdictional facts was unnecessarily complicated and prolonged
because of the Respondents’ refusal to comply with subpoenas and the Respondents’
objections to testimony dealing with jurisdictional matters, which the General Counsel was
forced to develop because of the Respondents’ refusal to comply with the subpoenas. Yet the
size of the resort, its large hotel and varied activities, including two golf courses that host yearly
PGA sponsored golf tournaments, all on the island State of Hawaii, should give the
Respondents pause before raising the issue while the Respondents refuse to comply with
subpoenas seeking pertinent, jurisdictional information. By engaging in this conduct, the
Respondents tend to obscure what may be serious from insubstantial arguments in the case.
Notwithstanding, and without regard to the foregoing, all positions and contentions of both
parties are and will be considered to the fullest extent.

The Respondents are engaged in commerce within the meaning of Section 2(2), (6), and
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(7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act.

II. Joint and Single Employer

The General Counsel contends that Oaktree and TBR Property are single employers,
and Benchmark is a joint employer with Oaktree and TBR Property. As noted above, Oaktree
controls and effectively owns Turtle Bay resort, TBR Property leases the resort, and Benchmark
operates the resort under a contract with TBR Property. These relationships and responsibilities
may be traced as follows.

Oaktree purchased Turtle Bay in 2000 from a Japanese corporation. (R Br., p. 4.)
Oaktree then attempted to separate itself from ostensible or direct control of the resort. Oaktree,
through three separate funds or accounts, owns Turtle Bay Holding, LLC (Turtle Bay Holding)
and Turtle Bay AJ Plaza, LLC (AJ Plaza). The partnership of Turtle Bay Holding (99%) and AJ
Plaza Hawaii, Co., Ltd., (1%), a wholly owned subsidiary of AJ Plaza, owns Kuilima. Kuilima is
the record owner of Turtle Bay Resort. TBR Property is a wholly owned subsidiary of Kuilima,
and it leases the resort from Kuilima. TBR Property has entered into a management agreement
with Benchmark for Benchmark to manage the resort.

Russell Bernard is a principal of Oaktree and is the portfolio manager for Oaktree’s real
estate funds. The resort is included within those funds, and Bernard is the asset manager for
the Turtle Bay resort. Bernard is the president of TBR Property and is a member and general
partner of Kuilima. Marc Porosoff is the senior vice president, legal, of Oaktree, and he is the
vice president and treasurer of TBR Property. Stephanie Schulman is an in-house counsel for
Oaktree (she works with Porosoff), and is the vice president and secretary of TBR Property.

Bernard and Porosoff, as the principal and senior vice president of Oaktree, respectively,
executed the lease between Kuilima and TBR Property. They signed that lease on behalf of
Kuilima, TBR Property, and Oaktree. Bernard and Porosoff, as the principal and senior vice
president of Oaktree, respectively, executed the management agreement between TBR
Property and Benchmark. They signed this agreement on behalf of TBR Property and Oaktree.
Porosoff assisted in negotiating this management agreement.

The management agreement between TBR Property and Benchmark provides that TBR
Property remains liable for all operating expenses of Turtle Bay resort, including all payroll and
employee benefits. All revenues Benchmark derives from its management and operation of
Turtle Bay resort is deposited into accounts that TBR Property controls. Bernard and Porosoff
are signatories on those accounts. TBR Property and Benchmark participate in labor
negotiations at the resort, and Benchmark is prohibited from signing any collective-bargaining
agreement without the prior, written approval of TBR Property.

Hy Adelman is a representative of Oaktree, and he maintains an office and residence on
the Turtle Bay grounds. He frequently meets with Abid Butt, a vice president of Benchmark and
the general manager of the resort, concerning the operation and management of the resort. As
Butt testified, this Oaktree representative—Adelman—is “the person responsible for the overall
resort.” (Tr. 2596.)2

2 References to the transcript of the hearing are designated as Tr.
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Oaktree is required to approve equipment leases for the resort, and Adelman, Oaktree’s
representative at the resort, handles these matters. In one instance, Adelman authorized and
approved an equipment lease signed by TBR Property. Adelman also oversees and approves
housekeeping supplies.

Video production companies will occasionally film scenes at the resort. Prior to filming,
the resort requires the production companies to obtain insurance protecting Oaktree. In addition,
Oaktree executed an Employment Practices Insurance Application on behalf of the Turtle Bay
resort. Turtle Bay is required to keep Oaktree informed of the resort’s employees and their
salaries.

The Respondents admit that TBR Property and Benchmark “have control over labor
relations or personnel matters at the Hotel at the Turtle Bay Resort.” (Answers of Benchmark,
TBR Property, and Oaktree to the Second and Third Amended Consolidated Complaints.) The
management agreement provides that Benchmark is responsible for managing and operating
the resort. Benchmark’s vice president of human resources maintains that TBR Property is the
employer of the resort’s employees. The TBR Property/Benchmark management agreement
provides that TBR Property must authorize and approve any negotiations with a labor union and
any proposed collective-bargaining agreement. Benchmark participates in labor negotiations on
behalf of Turtle Bay through Burt Cabanas, Benchmark’s chairman and chief executive officer,
and Eileen Santoli, Benchmark’s vice president.

The different responsibilities of Oaktree, TBR Property, and Benchmark in labor and
personnel matters are more fluid than solid. The vice president of Benchmark maintains that
TBR Property is the employer, yet Benchmark is the day-to-day operator and manager of the
resort. Moreover, Benchmark, not TBR Property, has issued a “Rules and Regulations”
handbook governing conduct by the resort’s employees. Benchmark also has issued a “Staff
Handbook - Collective Bargaining Unit Version” governing conduct by, compensation for, and
work regulations of the bargaining unit employees. (GC Exhs. 9 and 10.) Moreover, TBR
Property seems to be a shell corporation with no purpose other than to provide insulation to
Kuilima and Oaktree from TBR Property’s selection of Benchmark as the operator and manager
of the resort. As the Respondents state in their brief, “TBR Property, LLC is nothing more than
the legal lessor of the property upon which the Turtle Bay Resort is situated. It has no
management responsibility whatsoever with respect to daily operations or employment
practices.” (R Br. p. 175) The overbearing presence in these relationships is Oaktree, the
effective owner of the resort, which must be consulted, either directly or through TBR Property,
before any significant decisions are made by or at Turtle Bay resort, including decisions on labor
matters.

The determination of whether two or more entities are sufficiently integrated to be
deemed a single employer depends on all of the circumstances of the case. The inquiry focuses
on whether the entities’ total relationship reveals (1) some functional interrelation of operations,
(2) centralized control of labor relations, (3) common management, and (4) common ownership
or financial control. Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965);
Parklane Hosiery Co., 203 NLRB 597, 612 (1973); Sakrete of Northern California, Inc., 137
NLRB 1220 (1962), enfd. 332 F.2d 902 (9th Cir. 1964). Not all of these criteria must be present
to establish single-employer status.

(1) Some functional interrelation of operations. All of the officers of TBR Property are
officers, principals, or employees of Oaktree. There is no evidence that TBR Property has any
other employees. There is no evidence that TBR Property has any purpose other than to act as
Oaktree’s conduit through which the resort is managed and operated by Benchmark. Every act
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and right to act by TBR Property is known by and controlled by the ultimate owner of TBR
Property—Oaktree. Thus, to the limited extent that TBR Property engages in any operations,
those operations are controlled by and closely interrelated with the operations of Oaktree.

(2) Centralized control of labor relations. As noted above, there is no evidence that TBR
Property has any officers, managers, or principals other than officers, managers, and principals
of Oaktree. As Oaktree’s conduit, TBR Property has the right to control and it does control the
labor relations of the resort. Benchmark operates Turtle Bay under a management agreement
with TBR Property that was signed by the principal and an officer of Oaktree, and which
reserves to TBR Property final approval of any labor negotiations or labor agreement.
Accordingly, labor relations are centralized through TBR Property and Oaktree.

(3) and (4) Common management and ownership and financial control. Oaktree and
TBR Property share management, ownership, and financial control. The principals and officers
of Oaktree are the principals and officers of TBR Property. Oaktree owns the owner of Kuilima,
which, in turn, owns TBR Property. Kuilima is the record owner of the Turtle Bay property, and
the general partner of Kuilima is also the president of TBR Property and a principal of Oaktree.
TBR Property leases the resort from Kuilima and has assigned management of the resort to
Benchmark. The lease and management agreement were signed on behalf of TBR Property by
the principal and an officer of Oaktree. The lease and management agreement were also signed
by and on behalf of Oaktree, a circumstance that would be unusual, because Oaktree was not
ostensibly a party to those agreements, unless the parties to those agreements recognized that
Oaktree was the entity in control of TBR Property, Kuilima, and Turtle Bay.

Oaktree and TBR Property share each of the four criteria to a degree that, in
consideration of all the circumstances, they are sufficiently integrated to be deemed a single
employer. Moreover, Benchmark and TBR Property admit that they are joint employers of the
employees at the resort because they admit to having “control over labor relations or personnel
matters at the Hotel at the Turtle Bay Resort.”3 See NLRB v. Browning-Ferris Industries, Inc.,
691 F.2d 1117, 1122–1123 (3d Cir. 1982). Accordingly, the Respondents— Benchmark and
TBR Property, together with TBR Property’s single employer, Oaktree—are joint employers of
the employees at Turtle Bay resort.

The Respondents contend that Oaktree is not a joint employer with Benchmark, but this
contention is inapposite. The Respondents admit that Benchmark is a joint employer with TBR
Property. And, TBR Property’s single employer status with Oaktree brings Oaktree within the
ambit of TBR Property’s joint employer status with Benchmark.

3 The Respondents acknowledge other facts that support joint employer status, such as
TBR Property paychecks to employees and Benchmark paychecks to Turtle Bay managers.
Also, all employment-related forms contain the names of either or both Turtle Bay Resort and
Benchmark. (See R Br., pp. 178–179.) However, the Respondents’ admission that TBR
Property and Benchmark control the labor relations and personnel matters at Turtle Bay is
sufficient to establish joint employer status.
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III. Alleged Unfair Labor Practices

A. Background

After Oaktree purchased control of the Turtle Bay resort facilities, it contracted with
Hilton to operate and manage the resort. Hilton’s operation and management lasted from 1998
to 2001. Since 2001, Benchmark has operated and managed the resort.

Since 1999, the Union has been recognized as and has been designated as the
exclusive bargaining representative of Turtle Bay’s employees. Hilton entered into a collective-
bargaining agreement with the Union that was effective from February 28, 1999 to February 28,
2002. On March 12, 2002, Benchmark and the Union agreed to extend this agreement to May
31, 2002, and continuing thereafter until either party gave the other party 48 hours notice of
termination. (GC Exh. 54.) There is no credible evidence that either party provided the 48-hour
notice to the other party. Thus, the evidentiary record indicates that the agreement continues in
full force and effect. However, the General Counsel has represented that the agreement expired
on or about November 25, 2003. The Respondents have not disputed this representation.
Accordingly, the General Counsel’s representation that the collective-bargaining agreement
expired on November 25, 2003 is accepted.4

A new contract has not been signed since the extension of the 1999 agreement. In any
event, the Respondents continue to comply with at least some of the provisions of the
agreement. Nevertheless, the relationship between the Respondents and the Union has soured
since the expiration of the collective-bargaining agreement. This deteriorating relationship is
exhibited in and has been exacerbated by the unfair labor practices found.

Although the collective-bargaining agreement expired on or about November 25, 2003,
the parties do not dispute that the following provision of the agreement, among other provisions,
continued in force throughout the period involved in this case (GC Exh. 2, section 13):

Authorized representatives of the Union shall be free to visit the hotel at all
reasonable hours and shall be permitted to carry on their duties, provided
they shall first notify the management or its designated representative, and
there shall be no interference with the normal conduct of business.

Throughout the period 2002 to 2005, Marian Marsh, a union business agent who was
assigned to Turtle Bay, traveled to the resort about twice a week. She generally went to Turtle
Bay on Tuesdays and Thursdays. Occasionally, other union employees and officials would also
go to the resort for specific purposes. The purposes of Marsh’s twice-weekly visits were to meet
with the employees, discuss union-related matters, assist employees with any employment
problems, meet with management, and process grievances.

4 Moreover, the complaint defines the bargaining unit as the Respondents’ employees who
perform work at Turtle Bay, and who are covered under the agreement between Hilton (the
Respondents’ predecessor) and the Union. The complaint alleges that this agreement was
extended through November 25, 2003. (GC Exh. 1 (zzz)). The Respondents denied the
paragraph only because they objected to the General Counsel’s definition of “Respondents.”
(GC Exh. 1 (bbbb), (cccc), and (dddd)). Accordingly, the Respondents did not deny the
definition of the bargaining unit, including the allegation that the agreement was extended
through November 25, 2003.
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During her twice-weekly visits, Marsh followed the practice of walking through the work
areas on the ground and lower levels of the hotel as her first order of business. Her purpose
was to let the employees know she was there. She then went to the employee cafeteria where
she talked to employees. It is not clear if the Respondents dispute whether Marsh was permitted
to go through the work areas on the ground and lower levels of the hotel. The Respondents’
witnesses differed greatly in attempting to define or describe authorized areas for union
representatives. These witnesses, including Nancy Ramos, the director of human resources at
Turtle Bay; Thomas Dougher, the chief of security at Turtle Bay; and various security guards,
often contradicted each other, and sometimes contradicted themselves. The contradictions in
the testimonies from the security guards could be evidence of vague or ambiguous or differing
instructions from Dougher, and/or they could be evidence of a lack of trustworthiness of the
witnesses. The evidence, the witnesses’ demeanor, and the circumstances support the latter
conclusion even if Dougher did issue vague or ambiguous instructions.

All facts found in this decision are based on the record as a whole and on my
observation of the witnesses. The credibility resolutions have been made from a review of the
entire testimonial record and exhibits with due regard for logic and probability, the demeanor of
the witnesses, and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). Many
witnesses testified during the two hearing sessions in this case, and it would be unproductive,
inefficient, and confusing to address the testimony given by every witness concerning the many
factual matters covered in this decision. Nevertheless, it should be noted that as to those
witnesses testifying in contradiction of the findings, their testimony has been discredited, either
as having been in conflict with the testimony of reliable witnesses or because it was incredible
and unworthy of belief or as more fully explained in the text. With respect to the testimony
regarding what occurred at meetings or discussions with management or security personnel at
the resort, I have also taken into account the economic dependence of employees on
employers, with awareness of an employee’s attentiveness to intended implications of the
employer’s statements which might be more readily dismissed by a disinterested party. See
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).

The security officers’ varying descriptions of areas where Marsh supposedly was
permitted reflects a general intent to limit those areas to an absolute minimum without, however,
these security officers having an understanding of the consequences of or reasons for such
restrictions. It was as if the security officers had been instructed or had agreed before the
hearing to say that Marsh was authorized to be in only one room in the hotel—the employee
cafeteria—without regard to the truth of this contention or the previous practice of the parties.

Security officer Ah Sua testified that he believed union representatives were only
allowed in the employee cafeteria. (One wonders how the union representatives were supposed
to get to the employee cafeteria.) Sua changed his story on authorized union access several
times. Sua also claimed that union representatives had an “all-access pass.” (Tr. 2317.) When
asked to explain the meaning of all-access pass, Sua said, implausibly, that such a pass
restricted the union representatives to the loading dock and the employee cafeteria. Sua later
contradicted this story and “remembered” that two supervisors had told him that union
representatives do not have all-access passes. (Tr. 2352.)

Security officer Anthony Hite, a supervisor, testified that union representatives were
allowed in the employee cafeteria. For Hite, union representatives are not allowed in guest
areas, which Hite defined as “anywhere other than where the employees are.” (Tr. 2198.) For
Hite, guest areas include most of the hotel, including the parking lot. However, at least one of
the parking lots is open to the public, but Hite apparently had not considered that anomaly
during his attempt to restrict the union representatives’ authorized access.
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Romeo Nauta, a supervisory security officer, told security officer Robert Fortin that union
representatives are permitted to go into work areas. Dougher testified that an unauthorized area
for a union representative is “[a]nything that the guest pays to be in their privacy which is your
guest floors.” (Tr. 3670.) However, Dougher changed his testimony by adding that production
areas are also unauthorized whenever employees were working in those areas. This incredible
qualification would effectively bar a union representative from going anywhere in the hotel,
including the employee cafeteria. Moreover, Dougher’s attempt to limit the Union’s authorized
access to the resort is contrary to Nauta’s instructions to Fortin, and is not supported by Nancy
Ramos, the director of human resources at Turtle Bay, who agrees that union representatives
may greet employees at their workstations.

Security guard Rudy Faifili testified that union representatives are not allowed in any
areas where guests go. Supervisory security guard Gary Nagy testified that union
representatives were only allowed to go to the parking lot and the employee cafeteria. Nagy
testified that his understanding was based on the collective-bargaining agreement, but he later
admitted that he had never read that agreement.

The question of authorized union access at the resort is ultimately resolved by the
testimony of Fortin, confirmed at least in part by Dougher and Ramos. More importantly, the
determination that union representatives are permitted to go to work areas throughout the hotel
is confirmed by the actual practice of the union representatives and the Respondents
throughout this period of time. For example, Marsh followed the practice of initially walking
through the work areas on the ground and lower levels of the hotel on her twice-weekly visits.
And, except for some of the Respondents’ actions detailed below, including the issuance of
trespass notices that were allegedly issued for other reasons, as well as surveillance activities
by security guards, which were also allegedly done for other reasons, the Respondents did not
attempt to stop her.

For all of the foregoing reasons, the evidence demonstrates that union representatives
are allowed to be present in the work areas on the ground level and lower level of the hotel,
which includes most areas on those levels, including the restaurants, kitchens, lobby, and
parking lots. The Respondents have granted the Union this right of access since the beginning
of 2004 or before. Indeed, there is no evidence that the Respondents had ever limited the
Union’s right of access prior to the events described in this decision. Marsh usually walked
through these work areas when she came to the resort. She would then return to the employee
cafeteria on the lower level where she met employees who came there on their breaks and for
lunch. The security department, the employee locker rooms, and the human resources
department are located near the employee cafeteria.

B. Rules and regulations governing Turtle Bay’s employees

In approximately January 2002, the Respondents issued a handbook of rules and
regulations. (“Rules and Regulations”) (GC Exh. 9.) These Rules and Regulations include
standards of conduct applicable to Turtle Bay employees. The Respondents deny that they
have promulgated or maintained any rules, regulations, or handbooks since approximately May
2004, the date alleged in the complaint. The General Counsel subpoenaed from the
Respondents all of its rules and regulations, but the Respondents refused to comply with the
subpoena. Ramos admitted that the “Staff Handbook (Collective Bargaining Unit Version),” GC
Exh. 10, was authentic and was in effect at Turtle Bay. The handbook bears the same logo and
format as the rules and regulations. The Respondents presently argue, without citing any
authority, that they would be denied due process if they were required to defend the unfair labor
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practices alleged in the complaint regarding Turtle Bay’s work rules. (R Br., p. 218.) The
Respondents refused to comply with the Board’s subpoena, and they can hardly complain that
the documents already possessed by the General Counsel are not authentic and applicable to
the employees at Turtle Bay. Moreover, the Respondents failed to offer any evidence tending to
impeach or cast doubt on the rules and regulations that were received in evidence. (GC Exh. 9.)
The Rules and Regulations of the Respondents at Turtle Bay contain the following provisions
(GC Exh. 9, p. 2):

1. “No unauthorized social contact will be permitted at any time with guests,” and is
misconduct, which could result in disciplinary action, including termination.

2. “Being present on company premises at any time other than the employee’s assigned
work shift, unless specifically authorized by his/her supervisor or picking up paycheck,” and is
misconduct, which could result in disciplinary action, including termination.

Similarly, the Respondents have issued a “Staff Handbook (Collective Bargaining Unit
Version).” (Handbook) (GC Exh. 10.) This handbook also contains provisions governing the
conduct of Turtle Bay employees. Insofar as the present complaint is concerned, the handbook
contains the following provisions (GC Exh. 10, pp. 32, 33, 37–38, 40–41):

1. Page 32. “Under no circumstances should staffmembers solicit guests, including
requests for autographs, soliciting employment and other non-resort matters.”

2. Pages 37–38. “[S]olicitation of any kind of one staffmember by another is prohibited
while either person is on working time or in a public or work area.”

3. Page 38. “Distribution by staffmembers of advertising materials, handbills, printed or
written literature of any kind in working or public areas of our Resort is prohibited at all times.”

4. Page 33. “Should a staffmember wish to visit the Resort with family or friends, they
may do so with the prior approval of their manager and Planning Committee Member. You will
be required to have a ‘Return to Property’ pass.”

5. Pages 40–41. “The following are examples of behavior, which violate Turtle Bay
Resort policies:”

i. “Presence in the Resort more than 30 minutes before or after your shift.”

ii. “Walking off the job will be considered voluntary termination.”

iii. “Refusing to cooperate during a company investigation.”

C. The Union’s presence at the Turtle Bay resort and management’s reactions

1. February 12, 2004

On February 12, 2004, Marsh and Claire Shimabukuro, a community organizer for the
Union, led a rally consisting of union supporters and resort employees. Approximately 50
employees and 25 supporters participated in the demonstration. The purpose of the rally was to
demonstrate support for the Union, which was involved in collective-bargaining negotiations with
the Respondents, and to protest the failure of the Respondents to sign an agreement. The rally
took place on Kawela or Cavella beach, which is on the west side of the resort. The
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demonstrators carried signs and used two bullhorns, they sang and chanted slogans, and they
gave speeches. They remained on the public beach throughout the rally, which lasted
approximately 15 minutes, and Marsh and Shimabukuro monitored them to ensure that they
remained on the public beach.

The parties acknowledge that the beaches in Hawaii are open to the public. The legal
question is how to define a public beach, and the factual question is whether the demonstrators
remained on the public beach. Marsh believed that the public beach included the sand portion of
the beach, up to the vegetation line. This understanding appears to be consistent with Hawaii
law. See In re Application of Sanborn, 562 P.2d 771 (Haw. 1977); County of Hawaii v.
Sotomura, 55 Haw. 176, 517 P.2d 57, 62–63 (1973); In re Application of Ashford, 440 P.2d 76
(Haw. 1968). Marsh testified that she monitored the demonstrators, and they stayed on the sand
beach during the rally. Marsh no longer worked for the Union at the time of the hearing; she
retired in May 2005. Marsh was a credible witness; she readily and directly answered questions
without avoiding the question or volunteering unasked information as is sometimes done by
biased or untrustworthy witnesses. Marsh’s testimony regarding the location of the
demonstrators was credible.

Dougher testified that Turtle Bay’s property line extended into the beach, and that this
extension of its property line into public property has been certified by the state of Hawaii. (Tr.
3400.) However, the Respondents did not produce a copy of the certification or any other
evidence to corroborate Dougher’s statement or Hawaii’s alleged certification. I do not accept
that Turtle Bay’s property line extended into an area that under state law is public property
without some corroboration of such a claim.

Despite the demonstrators remaining on the public beach, the noise from the
demonstration disturbed persons who were part of a wedding party at the resort. The groom and
the best man came down from the resort’s pool area where the wedding party was congregating
and confronted the group on the beach. The groom and the best man were quite belligerent and
threatening. They demanded that the demonstrators leave the beach. They assaulted Marsh
and Shimabukuro They tried to physically pull the sign from Marsh, they wrested the bullhorn
from Shimabukuro’s hands, and they threatened to throw Shimabukuro into the ocean.

The resort’s security officers observed these events without intervening. Finally, Thomas
Dougher, the chief of security, approached the wedding party members, asked them to return to
the pool area, and told them that he would handle the situation. Dougher then had a brief
discussion with Marsh. Dougher told Marsh, “This is illegal. You shouldn’t be here. You have to
leave.” (Tr. 905–906.) Marsh and Shimabukuro led the group off Kawela beach, with the
intention to resume the demonstration on the public beach on the other side of the resort’s
property, known as the Bay View beach.

The group then left the Kawela beach, proceeded along the access road to the parking
lot toward the Bay View beach. However, they were prevented from entering the Bay View
beach because Dougher and other resort security officers blocked the entrance to the beach
with several golf carts. As the group approached, Dougher exited his golf cart and told them
they could not go to this beach. Another security guard told the group that they needed to get a
pass before they could enter that beach. Passes are given at the kiosk at the entrance to the
resort.

As noted above, all beaches in Hawaii are public beaches. Because the Respondents
control the land over which one must travel to access the beaches surrounding the resort, the
resort has dedicated a separate parking lot at its facility for members of the public who wish to
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use the public beaches. Dougher explained that he instituted a system of distributing passes to
members of the public as they entered the resort property in order to keep track of such
persons. Accordingly, the demonstrators complied with the security guard’s direction, and they
proceeded across the parking lot in order to go down the access road to the kiosk.

However, the security department had summoned Honolulu police officers, and they
arrived at this time and stopped the group from going any farther. The police told the group that
a paddy wagon was on the way, and if the group did not disburse, everyone in the group would
be arrested. The only reason given by the police for their threat to arrest the union supporters
was that the resort wanted the group to leave the property. In spite of the actions by the
Honolulu police, there is no evidence that the group or any members of the group had done
anything illegal. During this entire encounter, neither the police nor the resort’s security guards
mentioned the public nature of the beach and its access, nor whether the demonstrators had
strayed off the public beach during the rally.

The Respondents now contend that the Union did not secure a permit for the rally.
However, there is no evidence that a permit was needed. Moreover, the police did not mention
the alleged need for a permit when they threatened to arrest every member of the group.

After being threatened with arrest, the group started to disburse, and many of them
proceeded to their cars. Before Marsh could get into her car, Sergeant Lambert of the Honolulu
police asked her to wait because the resort was preparing a trespass notice that it wanted to
give to Marsh. Marsh told him that the resort could fax the notice to her if it wished. Lambert
agreed, and Marsh entered her car. As she attempted to pull out, two security officers in golf
carts tried to block her from leaving, but she drove around them.

Thus, by February 2004, the relationship between the Respondents and the Union was
marked by confrontation and unpleasantness. The Union resorted to staging a rally to publicize
its predicament, viz., the lack of a contract. And the Respondents responded by failing to
intervene in a potentially violent situation until the participants in the Union’s rally had been
assaulted by guests of the resort; by denying demonstrators access to a public beach; by
summoning local police to evict the demonstrators; by taking no action against its guests who
had assaulted members of the rally; and by physically attempting to prevent Marsh from leaving
the resort’s property so that security officers could personally deliver a trespass notice to Marsh.

2. February 14, 2004

On February 14, Marsh came to the resort in accordance with her regular duties of
meeting with employees twice a week. Marsh’s usual routine is to enter the resort at the loading
dock, sign a register at the security dispatch office, walk through the ground level and the lower
level of the hotel to let employees know she is there, and go to the employee cafeteria to meet
with employees.

After Marsh entered the employee cafeteria on February 14, she met with bargaining
unit members. As she was engaged in her discussions with the employees, Dougher entered
the cafeteria and told Marsh that she was not allowed on the resort’s property because she was
trespassing and she had already received a verbal trespass notice on February 12. The security
department notified the Honolulu Police Department and requested their presence. After a short
period, Marsh complied with Dougher’s directive and left. She went to her car in the parking lot
with security officers, including Dougher, following her. She told them she intended to go to
Leilei’s, the restaurant by the golf course. The security officers told her she could not go to
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Leilei’s, a public restaurant, but that she was required to leave the property. Dougher told
Marsh, “I’m trespassing your car.” (Tr. 745.) The security officers then escorted Marsh down the
resort’s access road, and out to the highway.

The intent of the Respondents in giving and issuing trespass notices to union
representatives was to exclude each such representative from the resort property for a period of
one year. Indeed, the notices stated that the recipient was not permitted to return to the resort
for one year. The initial trespass notices stated that the notices were being issued pursuant to
Section 708–813 of the Hawaii Revised Statutes, a statute titled “Criminal trespass in the first
degree,” which classifies such an offense as a misdemeanor. Later notices stated that they
were being issued pursuant to Section 708–814 of the Hawaii Revised Statutes, which is titled
“Criminal trespass in the second degree,” and classifies such an offense as a petty
misdemeanor.

Section 708–814 provides that a person commits the offense of criminal trespass in the
second degree if the person unlawfully enters commercial premises within one year after a
written warning or request to leave by the owner of the premises. The statute also provides that
it shall not apply to “any conduct or activity subject to regulation by the National Labor Relations
Act.” It is curious that this clear exception did not dissuade the Respondents from invoking the
statute in connection with the trespass notices issued in this case. The trespass notices issued
by the Respondents to the union representatives did not contain or refer to this exemption for
conduct regulated by the Act.

These trespass notices constituted the Respondents’ attempts to criminalize the Union’s
otherwise lawful actions while the labor negotiations between the Union and the Respondents
were ongoing. The Respondents’ antiunion animus, either initiated or exacerbated during the
contract negotiations and evident throughout the Respondents’ dealings with the Union during
2004 and 2005, degenerated to farce with Dougher’s notice to Marsh that he was trespassing
her automobile.

3. February 18, 2004

On February 18, Marsh was at the resort in accordance with her duties as a union
representative. She came to the resort with Shimabukuro. While Marsh and Shimabukuro were
in the employee cafeteria speaking to a unit member, Security Officer T. Lolotai approached
them, said they were being given trespass notices, and told them to leave. Lolotai said that he
had been ordered to call the Honolulu Police Department whenever a union representative
came to the resort. Lolotai also said that his orders, which were from Dougher, included a
directive to trespass Marsh and Shimabukuro and to escort them off the resort’s property. The
only reason Lolotai gave for his trespass notice was that Marsh and Shimabukuro had been
trespassed on February 12, and they were no longer allowed on the property.5
5 Shimabukuro testified that Lolotai gave several reasons for the trespass notice, including
parking in a nonpublic parking space and rallying in nonpublic areas. However, it is apparent
that Shimabukuro had confused at least some of the events on February 12 with the events on
February 18. Neither Lee nor Lolotai testified. Accordingly, I have relied primarily on Marsh’s
recollection of February 18 in the above findings, supplemented by a security officer’s report of
this event. (GC Exh. 47.) Moreover, and as noted above, Marsh presented as a credible and
honest witness. She did not “gild the lily” when describing events, as Dougher and several
security guards did, and she appeared to attempt to accurately recall events without regard to
the positions of the parties.
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The Respondents claim that Marsh and Shimabukuro failed to sign the register at the
security dispatch office when they entered the resort. However, Lolotai did not mention the
alleged failure to sign the register when he gave trespass notices to the union representatives,
and the Respondents do not claim that the alleged failure to sign the register had any bearing
on the trespass notices to Marsh and Shimabukuro nor the Respondents’ attempt to criminalize
their behavior by summoning the Honolulu Police Department.

Honolulu Police Officer Dwight Lee arrived shortly after Security Officer Lolotai issued
the trespass notices to Marsh and Shimabukuro. Police Officer Lee entered the employee
cafeteria. He asked for a representative of management to be present, and Lili Tani, an official
in the human resources department, joined the group. Police Officer Lee then addressed the
group, which included Marsh, Shimabukuro, Lolotai and other security officers, and Tani. Lee
asked if the union representatives had been disruptive, and Lolotai replied no. Lee told them
that Marsh and Shimabukuro had a right to be there, that the union representatives’ presence at
the resort came within the jurisdiction of the National Labor Relations Board, and that this was
not a criminal matter.

Dougher acknowledges being told of Lee’s statements. Dougher also acknowledges that
he was not clear whether issuing trespass notices to the union representatives was proper, and
he admits having many discussions about this issue. Nevertheless, he and his security officers,
pursuant to his instructions, continued to issue numerous trespass notices to union
representatives.

4. March 25, 2004

On March 25, approximately 50 people gathered outside the resort’s grounds, along the
Kamehameha Highway, for the purpose of attending a rally in support of Turtle Bay’s
employees. Most of these people were union members from other locations, although several
resort employees were members of the group. The purpose of the demonstration was to
express support for the employees and the employees’ efforts to obtain a contract, and to
protest the failure of the Respondents to sign a contract. Marsh did not participate in the rally.
The Respondents had received advance notice of the rally, and security guards were posted at
the entrance of the resort when the group gathered across Kamehameha Highway from Turtle
Bay. The group then walked into the resort.

While the group was gathering in front of and entering Turtle Bay, two security guards
were seated in golf carts at the entrance to the resort. The guards were holding video cameras
that they pointed toward the group, appearing to videotape the group as they gathered and went
into the resort. There had been no violence or confrontations of any kind among the
demonstrators.

When the group entered the resort’s property, the security officers gave them hand-
drawn maps of the resort. The group walked down the access road and met with a group of
approximately 20 resort employees in the parking lot. This group then split, with the employees
going to the left and down the access road to the Kawela Bay beach, and the other group
marching to the hotel’s entrance while chanting and carrying signs and one large banner.

The second group continued its chanting as it proceeded into and through the lobby of
the hotel. They also continued to carry signs and the large banner, which was being held by
several people. The Respondents had called the Honolulu Police Department, and there was a
police officer present in the hotel’s lobby when the group entered. There were approximately
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four security guards in the lobby, including Dougher. The group marched through the lobby
without coming in contact with any guests or employees. However, the security guards tried to
stop the demonstrators by placing themselves in front of the demonstrators and blocking their
passage. Dougher claims two or three members of the group hit him as they were going through
the lobby. He claims that one person shoved him, another hit him in the face with a camera, and
another kicked him in the shin. Dougher claims that he did nothing to the perpetrators in
response to these assaults. Dougher was not a credible witness, and his testimony about being
assaulted or struck by members of the rally, except perhaps for incidental and inconsequential
contacts, is not credited.

Dougher has been a director or assistant director of security departments for various
hotels since at least 1987. He was the Director of Security and Safety at Turtle Bay from 1988 to
1996. He was the director of security for the Hilton Waikaloa from 1996 to 2001, and he
returned to the same position at Turtle Bay in August 2001. Dougher oversees a department
that has 24 security officers, including four supervisors. Dougher is an authoritative man, and he
appears to be accustomed to giving orders. He does not appear to be a man who would meekly
or silently suffer a series of kicks, shoves, and hits. For this reason alone, which is based
primarily on Dougher’s demeanor, his testimony regarding the rally’s march through the hotel
lobby is not credible. However, there are additional reasons to discredit Dougher’s testimony.

Security guard Nagy was with Dougher on March 25 when the rally members came
through the lobby. He did not see anyone come in contact with Dougher. He did not see any
physical contacts between the rally members and any other person in the lobby. Nagy stated
that the banner being carried by some of the rally members came into contact with him. Of
course, this is not surprising since he placed himself in front of the banner in order to stop the
rally. However, he then moved out of the way to let them pass. In addition, a Honolulu police
officer was present in the lobby when the rally went through, and the police officer took no
action regarding any alleged assault or physical contact.

Dougher testified at the hearing that he did not know the person who had kicked him in
the shin on March 25. However, in an affidavit he gave before the hearing, Dougher identified
that person. Dougher testified at the hearing that he had instructed Security Officer Michael
Carter to videotape union officials, and that he had instructed Thomas Parks, the resort’s
director of sales, to videotape union representatives and employees who were participating in a
demonstration on the Kamehameha Highway in front of the resort. Moreover, Dougher admitted
at the hearing that he knew of at least one instance in which a union representative’s picture
was taken. However, in an affidavit he signed before the hearing, Dougher said he was unaware
of anyone videotaping or taking pictures of any union representatives.

Dougher testified at the hearing to an alleged encounter with Marsh on January 27,
2005. Dougher claims that Marsh was seated on a couch in the lobby, and he told her that she
should not talk to employees in the lobby because the hotel was particularly busy that day. He
claims that Marsh told him to go away and mind his own business, and that he did nothing in
response. He then followed Marsh as she proceeded to the elevators and insisted she use
another set of elevators, which was difficult for Marsh because she was suffering from a bad
back. Dougher claims that Marsh did not tell him anything about being in physical discomfort.
However, in an affidavit he signed before the hearing, Dougher said that Marsh did tell him
about her bad back. Dougher’s treatment of Marsh when she was in physical pain shows the
pettiness to which the employer’s antiunion attitude devolved. Dougher’s denial of any
knowledge of Marsh’s physical pain in his testimony, which is contrary to the testimony he gave
in his sworn affidavit, is further evidence of his lack of credibility.

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Dougher testified that on other occasions union representatives cursed at him and
belittled him, but that he did not react to such provocations. For example, Dougher claims that
shortly after he arrived at the resort in September 2001, he noticed Eric Gill, the secretary-
treasurer of the Union, and Marsh talking with employees and stopping those employees from
working. This was the first time he met Gill and Marsh at Turtle Bay. He said to Gill and Marsh
that they should not be doing this, and Gill told Dougher that he (Gill) could go anyplace he
pleased and do anything he wanted. Gill told Dougher to call the police if Dougher wanted Gill
off the property. Marsh was also rude by telling Dougher, “Why don’t you just go do something
else.” Dougher remained calm and simply responded to Gill, “It does not have to be that way
Eric.” (Tr. 3368–3370.)

This alleged encounter is implausible and incredible. Marsh did not appear to be a
person who would be rude, much less rude with no provocation or reason. Moreover, this event
was supposedly the first time Marsh had met Dougher, increasing the implausibility of
Dougher’s testimony. Dougher’s testimony regarding his initial encounter with Gill and Marsh at
Turtle Bay is also rejected because his demeanor, noted above, shows a person who would not
meekly and silently accept such rudeness, as Dougher claims he did in response to the alleged
rudeness of Marsh and Gill.

Dougher related other instances of Marsh’s alleged rudeness and crudeness. For
example, on February 14, Dougher told Marsh she could be trespassed for parking her car in
the bus area. Dougher claims that Marsh replied, “I’m leaving; screw you.” (Tr. 3452.) Dougher
claims he said and did nothing in response. On June 11, 2004, Dougher claims that he saw
Marsh in the hotel’s kitchen, and he told her to leave. He claims that Marsh replied, “God damn
you. I’ll do what I please and I’ll go where I please.” Again, Dougher claims he said and did
nothing in response to this outburst. (Tr. 3529.) Like the other examples cited herein, and
considering the demeanor of Marsh and Dougher, the foregoing testimony of Dougher is not
credible, both because Marsh’s demeanor was not consistent with such alleged rudeness and
because Dougher’s demeanor was not consistent with such meekness.

Another example is Dougher’s alleged encounter with Daniel Kerwin, a union
representative, in April 2003. Dougher saw Kerwin walking to the bar in the pool area, and
Dougher followed him. Kerwin allegedly took out a camera and appeared to be taking pictures.
Dougher approached Kerwin. Kerwin then supposedly pushed and shoved Dougher, and told
Dougher that he could not bother Kerwin. Dougher elaborated on this alleged incident as follows
(Tr. 3376):

He [Kerwin] went right into my face and he told me, ‘Go ahead. Hit me. And
I’ll call the cops and I’ll sue your ass. And if you think I’m screwing with you,
go ahead and hit me.’ And he kept coming into me. I didn’t move and he
kept coming into me. At that point, he’s in my property. And I didn’t say
anything more.

Kerwin is allegedly on Dougher’s “property;” he is threatening Dougher; he is in
Dougher’s “face;” Dougher is the director of the security department and is a forceful individual;
yet Dougher did and said nothing. At best, this story is implausible and incredible. Yet, Dougher
recounted it with the same authoritative and confident tone he imparted to all his testimony,
including his testimony that contradicted his previous sworn statements. In the end, one could
not separate fact from fiction in much of Dougher’s testimony.

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Returning to the March 25 rally, the demonstrators went through the lobby to the pool,
which leads to the Kawela beach. They went directly to the beach and met with the group of
employees who had split from the group in the parking lot. There were 20–25 people in each
group, so the number of demonstrators on the beach numbered approximately 40–50 people.
The people chanted, and they were led by at least two persons with bullhorns. The people
remained on the sandy portion of the beach throughout the rally. The demonstrators did not
engage in any violence throughout the rally.

During the demonstration on the beach, Dougher, who was stationed on the resort’s
property above the beach, held a video camera that he pointed at the demonstrators, as if he
were videotaping them. The demonstration on the beach lasted for approximately 40 minutes.

Because of the rally on March 25, the Respondents decided to follow or “shadow” (Tr.
2653) union representatives when they came onto the resort. In addition, the Respondents
incurred the expense of continually having at least one security guard assigned to follow union
representatives even if union representatives were not present. Until the union representative
appeared, the assigned security guard was considered to be “floating.” (Tr. 2311.)

The assigned security officers closely followed the union representatives, often within
several feet. The security officers who were assigned to follow the union representatives carried
notebooks or logs on which they made notes of what the union representatives were doing,
including meetings with employees. Dougher told Nagy, a supervisory security officer, that the
reason for such monitoring was the violence and dirty tactics used by the union on March 25.

Other security guards gave different reasons to explain why the resort closely followed
union representatives whenever they came onto the property. Nagy said that the monitoring was
done to protect the guests and employees from any further incidents. (Tr. 3191.) Nagy failed to
explain how shadowing union representatives would prevent another rally. Indeed, further rallies
took place on the resort property. Leeann Duque, the assistant director of security at Turtle Bay,
stated that monitoring was done because the union representatives continued to go into areas
that were considered work areas and areas that were unauthorized. (Tr. 2989.) Without regard
to the fact that union representatives are permitted to go into work areas, Duque failed to
explain why union representatives were shadowed in areas where everyone, even Duque,
agrees they were allowed to go, such as the parking lot and the employee cafeteria. Moreover,
Duque’s explanation fails to explain why the Respondents did not prevent the union
representatives from going into unauthorized areas rather than following the union
representatives wherever they went in the resort.

Neither the union nor the demonstrators engaged in any violence on March 25. The
Respondents’ reaction to the rally—to shadow union representatives whenever they came onto
the property—was neither effective nor focused nor reasonable. It was retaliatory and was
designed to intimidate and provoke the Union, while interfering with the Union’s ability to
perform its representation functions at Turtle Bay.

5. April 2, 2004

On April 2, approximately 20 persons, most of whom were employees of the resort,
gathered at the entrance to the resort for a rally. The purpose of the rally was to express the
employees’ frustrations at the failure to secure a contract. The rally was across Kamehameha
Highway in front of the resort. The rally members chanted, and they held signs. The signs
contained no threats and the rally was peaceful.

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Dougher was seated in his personal vehicle, which was parked at the entrance gate,
across the highway from the rally. Dougher held a video camera, which he pointed toward the
rally and the participants in the rally, as if he were videotaping them. The members of the rally
could see Dougher, and they believed he was videotaping them. Other security guards were
observing the rally, and they were seated in golf carts at the entrance to the resort.

6. April 17, 2004

On April 17, approximately 80 people, about half of whom were employees of the resort,
participated in a rally at the resort. The purpose of the rally was, again, to express the
participants’ frustrations at the failure to secure a contract. The demonstrators met in the
parking lot, and as they were gathering there, a security guard, identified as Val, took pictures of
the license plates on each of their vehicles.

The rally proceeded onto the beach where the participants held their signs and chanted
for approximately 40 minutes. There was no violence, or threats of violence, or confrontations
during the rally. While the rally was taking place on the beach, a security guard, identified as
Michael, was pointing a video camera at the group as if he were videotaping the rally. In
addition, Tom Parks, a sales manager for the resort, held a video camera and pointed it at the
group as if he were videotaping them.

George Cox, a maintenance employee at the resort for 23 years, testified to the facts
regarding this videotaping, as well as his conclusion that the participants were, in fact, being
videotaped. Counsel objected to the latter testimony on the ground the witness was speculating.
The objection was overruled, with the proviso that the witness should explain the basis for his
conclusion. This ruling has been reconsidered and is affirmed. Cox’s testimony that videotaping
was taking place, while a conclusion, nevertheless reveals the witness’s perception of what was
occurring. Moreover, and without regard to the witness’s conclusion, whether videotaping was
actually taking place need not be resolved in deciding the question of whether the Respondents’
actions constitute a violation of Section 8(a)(1) of the Act because the Respondents’ actions
would be equally violative if they unlawfully surveilled or created the impression of such
surveillance.

7. May 4, 2004

On May 4, Marsh was at the resort in accordance with her regular duties as a union
representative. Shimabukuro, who was accompanied by other union agents, also came to the
resort that day with a group of approximately 50 union retirees. She escorted the retiree group
to the Palm Terrace restaurant, one of the restaurants at Turtle Bay resort. The retirees came in
a bus, and Shimabukuro came separately in her car. The purpose of this visit by the retirees
was to show support for the resort’s employees during the ongoing contract negotiations.

The restaurant is divided into three tiers. When the retirees entered, there were about 10
patrons of the restaurant seated in the upper tier. The retirees were seated in the lowest tier.
They ordered coffee or tea and had discussions at separate tables. Marsh had coffee with the
group, and she helped some members of the group find the restroom and the way back to the
bus. The retirees remained in the restaurant for about an hour. As they were preparing to leave,
Shimabukuro briefly addressed them and thanked them for showing their support for Turtle
Bay’s workers. The retirees responded by applauding. The retirees left through the lobby, and
they chanted as they went. They then boarded the bus and departed.

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As Shimabukuro was gathering her papers on the sidewalk in front of the hotel lobby,
two security guards approached her. They told her they were going to issue trespass notices to
her and to Marsh. The guards escorted Shimabukuro to the employee cafeteria where Marsh
was located. Marsh was conversing with several employees on employment matters. Dougher
then arrived with two Honolulu police officers. The police officers told Marsh and Shimabukuro
that they had to leave because they were trespassing. Security guard Nagy then handed
trespass notices to Marsh and Shimabukuro.

The trespass notices advised Marsh and Shimabukuro that they were not permitted to
return to the resort for a period of one year, and if they did return during this period, they would
be subject to criminal prosecution. These trespass notices refer to the resort as Hilton Turtle
Bay, the resort’s previous name. This misnomer was corrected in later trespass notices issued
to the union representatives. Later, in approximately June, Dougher supplemented the warning
on the trespass notice by telling Marsh she was banned from the resort for one year. After the
trespass notices were delivered, a security guard took pictures of Marsh and Shimabukuro.
They were then escorted by security guards from the employee cafeteria, and out to the parking
lot.

The security guards escorted Marsh and Shimabukuro to their cars in the parking lot.
The guards then took pictures of the license plate of both Marsh’s car and Shimabukuro’s car.

8. May 6 and 24, 2004

The collective-bargaining agreement between the Respondents and the Union requires
the employer to deduct monthly union dues from employees’ wages upon receipt of a written
authorization. After the agreement expired, and despite the Respondents’ continued compliance
with other provisions of the agreement, the Respondents no longer deducted monthly dues from
employees’ wages.

On May 6, during a telephone conversation, Ramos told Marsh that the union was not
permitted to collect its dues on the resort’s grounds because Ramos considered union dues
collection to constitute solicitation, and the Respondents had a “no solicitation” policy. Ramos
confirmed her statement in a letter to Marsh, which stated, “Please be advised that we will not
be allowing Business Agents or Local 5 staffing on property to solicit union dues from our
employees.” (GC Exh. 3A.)

Despite Ramos’s reference to an alleged no-solicitation rule as the reason the Union
was being prohibited from collecting dues, the Respondents now claim Ramos really meant that
the union’s collection of dues constituted harassment to employees. Therefore, the
Respondents claim that Ramos was actually prohibiting the union’s collection of dues because
employees were being harassed by such collections, not because of a no-solicitation rule. The
Respondents further claim that “TBR’s restrictions did not prevent dues collection; rather it was
the manner of solicitation of dues to which Ramos objected.” (R Br. p. 212.) Ramos’s letter to
the Union highlights the speciousness of this assertion. Ramos’s entire letter to Marsh states as
follows (GC Exh. 3(a)):

Please be advised that we will not be allowing Business Agents or Local 5
staffing on property to solicit union dues from our employees.

Thank you for your understanding. If you have any questions, please feel
free to call me.

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Ramos repeated and stressed this unambiguous directive in another letter to Marsh
dated October 26, 2004. That letter states (GC Exh. 3(c)):

We have been advised that you will be on property on October 26th to
collect Union dues from our employees in the cafeteria.

Please be advised that our position on this matter has not changed. We will
not allow union dues to be collected on resort property. Also please note
that I personally advised you that you would not be allowed on property to
collect dues when we met on October 21, 2004. Your response to me
during this time was “oh well I’ll be on the road”. Just so that there is no
misunderstanding about this issue, our position is that there will be noo
[sic] dues collecting on property.

Thank you for your understanding.

There is no reference in the letters to the manner of dues collection. The prohibition of
dues collection is presented as a fait accompli. The language of the letters is consistent with
Ramos’s statements to Marsh, and is consistent with later statements by Dougher and security
guards when they prevented the Union from collecting dues at Turtle Bay.

Moreover, there is no evidence that the Union’s collection of dues at Turtle Bay
interfered with the resort’s normal conduct of business. The dues were collected, or were
attempted to be collected, in the employee cafeteria, which was open to employees who were
on breaks or were otherwise in a nonworking status. There was testimony that George Lagua,
who worked in the kitchen, may have left his station to pay dues to Marsh in the cafeteria.
However, there was no credible evidence that Lagua was not on his break when he paid his
dues. Also, even if Lagua was not on a break, there was no evidence that Marsh had requested
Lagua to pay his dues other than when he was on a break.

In addition, the Respondents did not enforce a no-solicitation policy against other
companies, organizations, or causes. For example, in 2005, Costco was permitted to solicit, for
membership, the resort’s employees in the cafeteria. Indeed, fundraising was a common
practice at the resort. The Respondents offered no evidence of any time, other than against the
Union’s collection of dues, that this alleged no-solicitation rule was enforced.

On May 24, Jessie Cueva-Decoite, a senior dues clerk for the Union, and Clarence
Baijo, a business representative for the Union, went to Turtle Bay to collect union dues. They
went to the employee cafeteria carrying their cash box and sat at a table in the rear of the
cafeteria. There were several employees in the cafeteria. A few minutes after they arrived,
Dougher and another security guard came into the cafeteria. Dougher showed Decoite and
Baijo a copy of Ramos’s letter and told them they were not permitted to collect dues. Dougher
told Decoite and Baijo to follow him. After having a discussion with Ramos, Dougher took them
to his office. Dougher told them that they were trespassing. Baijo said that they had a right to be
there to collect dues. Dougher then called the Honolulu police.

Two Honolulu police officers arrived. They requested personal identification from Decoite
and Baijo, and they told Decoite and Baijo a background check would be done on them. The
police officers left Dougher’s office with the identifications, returned 15–20 minutes later, told
Decoite and Baijo that they were “clean,” and said the police officers were going to call their
sergeant because they did not know what to do. The sergeant arrived about 15–20 minutes
later, and spoke privately with Dougher. Dougher returned to his office, and told Decoite and
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Baijo that if they left the resort’s grounds he would not issue a trespass notice to them.
Nevertheless, the police officers advised Decoite and Baijo that the police department would
keep a record of this matter and their actions. This report was called a “miscellaneous public,”
and a notice was handed to Decoite and Baijo to confirm the existence of this miscellaneous
public report. Decoite and Baijo then left the resort. However, after leaving the resort, they
parked on the side of the road and were able to collect some dues from workers as the workers
left at the end of the day.

9. June 2 and 7, 2004

On June 2, Marsh went to Turtle Bay with Baijo and Joel Muricami, who is a paralegal
with the Union’s legal department. They went to the employee cafeteria and talked to
employees about the ongoing contract negotiations with Turtle Bay. As they were talking to
employees, a Honolulu police officer came into the cafeteria accompanied by Henry Lacar, the
property operations manager at the resort. The police officer said that he needed to fill out some
forms, which were in his vehicle, regarding this occurrence, and he asked Marsh to accompany
him to his vehicle. Marsh declined, preferring to remain with Baijo and Muricami as witnesses.
The police officer left for the ostensible purpose of completing forms. However, he never
returned, and a trespass notice was not issued on that day to Marsh or the other union
employees.

On June 7, Marsh was in the employee cafeteria, together with employees of the resort,
pursuant to her duties as a union representative. Dougher, Nagy, and Honolulu police officers
approached her. Nagy handed Marsh a trespass notice and told her the notice was on a revised
form and was intended to replace the trespass notice that was issued to her on May 4. (GC Exh.
36B.) The trespass notice contains the following language:

[Y]ou are hereby advised that your presence is no longer desired on Turtle
Bay Resort (“TBR”) premises and that you are not to return to said premises for
purposes of union dues collection or solicitation or for any activities that are
disruptive or interfere with the normal conduct of TBR’s business, for a period of
one (1) year, effective as of the date indicated above.

This includes the entire grounds and premises of TBR . . .

If you violate this Trespass Warning, you will be subject to arrest for the
offense of Criminal Trespass in the Second Degree, Haw. Rev. Stat. § 708-814,
which is a Petty Misdemeanor.

The Respondents’ form also contains spaces for individual physical characteristics of the
person to whom the trespass notice is given, under the heading “description of suspect.”

All subsequent trespass notices from the Respondents to union representatives used
this new form. Dougher told her that the police officer was present to witness her receipt of the
trespass notice and to send it to the prosecutor’s office. Dougher told Marsh that she was not
going to be arrested at that time. The police officer told Marsh that he was going to send the
trespass notice to the prosecutor’s office. Marsh had not disrupted any employees or interfered
with the work of any employees on June 7.

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10. June 11, 2004

On June 11, Marsh arrived at the resort at approximately 6:15 to 6:30 in the morning.
She walked through the lobby, the Palm Terrace restaurant and its kitchen, and then down to
the employee cafeteria. June 11 is a State holiday in Hawaii in honor of King Kamehameha.
Ramos was in the cafeteria when Marsh arrived and was serving coffee and pastries to the
employees. Ramos told Marsh that Ramos was having a private function for the employees, and
she asked Marsh to leave until 8 a.m.

After Marsh returned to the cafeteria, Dougher, Nagy, and a Honolulu police officer
entered the cafeteria and approached her. Nagy handed Marsh a trespass notice that had been
prepared by Dougher and told Marsh that she was being issued the trespass notice because
she had arrived too early that day. Dougher had told Nagy that Marsh was being issued the
trespass notice because she was at the hotel at an improper time. In addition, the Respondents
agree that they issued the trespass notice to Marsh based on the time she came to the resort.
(R Br., p. 92.) The trespass notice, which was on a form similar to the trespass notice issued to
Marsh on June 7, contains an additional page, which states, among other things, that the
trespass notice “will be filed with the prosecuting attorney’s offices immediately.” (GC Exh. 36C.)

Dougher’s “improper time” allegation or charge was based on his belief that union
representatives could only be at the resort during the time the resort’s personnel office was
open. He did not consult with Ramos or other management personnel in forming his belief or
before issuing the trespass notice to Marsh. Ramos asserted that her office was open between
7 a.m. and 6 p.m. However, Ramos believes that union representatives may properly be at the
resort during those hours, or when she is at the resort, which was the case on June 11.

Security guard Clayson Hanohano was assigned to and did follow Marsh everywhere
she went in the resort. June 11 is the first time Marsh noticed that she was being followed
throughout the resort. Hanohano remained 2–3 feet behind Marsh wherever she went, including
the employee cafeteria. When she went to the ladies’ room, he stood outside the ladies’ room
until Marsh came out.

Shadowing is an accurate description of what the security guards were assigned to do
and did as they followed union representatives throughout Turtle Bay. For example, shadowing
conveys a sense of the close proximity between the security guard and the union
representative, which was often within several feet, when the guards followed union
representatives. Moreover, at least two witnesses used “shadowing” to describe what the
security guards were doing: Marsh (Tr. 789) and Ah Sue, a security guard. (Tr. 2653, 2669.)

There is no apparent reason why the Respondents’ security guards would follow Marsh
or other union representatives throughout the resort, including the parking lot and the employee
cafeteria. The security guards offered conflicting reasons at the hearing for following the union
representatives throughout the resort, including protecting the facility, protecting the employees,
and protecting the union representatives. None of these alleged reasons withstands analysis or
is supported by the circumstances. In addition, and other than the security guards’ testimony at
the hearing, the Respondents never explained these alleged reasons to the union
representatives. Moreover, it is uncertain whether the security guards, other than Dougher,
knew the reason why they were ordered to shadow the union representatives.

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11. June 12, 15, 17, and 22, 2004

On June 12, Marsh was in the employee cafeteria conversing with employees pursuant
to her duties as a union representative. At approximately 11 a.m., Nagy approached and
handed her another trespass notice. Nagy was accompanied by a Honolulu police officer. Marsh
asked why this trespass notice was being issued, but Nagy replied only that he was following
orders. Marsh remained in the cafeteria conversing with employees until approximately 2 p.m.

On June 15, Marsh was in the employee cafeteria conversing with employees pursuant
to her duties as a union representative. At approximately 7:30 a.m., Nagy entered the cafeteria
with members of the Honolulu police department. He handed another trespass notice to Marsh.
Nagy did not tell Marsh why the trespass notice had been issued to her.

On June 17, Marsh was in the employee cafeteria conversing with employees pursuant
to her duties as a union representative. At approximately 11:30 a.m., Nagy entered the cafeteria
with members of the Honolulu police department and handed a trespass notice to Marsh. Nagy
did not tell Marsh why the trespass notice had been issued to her. Nagy told Marsh that the
resort was going to send the trespass notice to the prosecutor’s office, and he said this loudly
enough for the employees in the cafeteria to hear.

On June 22, Shimabukuro was at Turtle Bay to collect union dues. She went to the
employee cafeteria and sat at a table in the rear of the cafeteria. She placed her cash box and
receipt book on the table. Employees came to her table to pay their dues, and as she was
collecting, Nagy entered and told her she could not collect dues on the resort’s property. A little
later, Dougher entered and told her that she could not collect dues on the property. About 20 to
30 minutes later, a Honolulu police officer arrived and told Shimabukuro that she was
trespassing, and she must leave the premises. Shimabukuro asked the police officer if she
would be arrested if she did not leave, and he said yes. Nagy then handed a trespass notice to
Shimabukuro, which was witnessed by the police officer. This encounter between security
guards, the police, and Shimabukuro occurred in the presence of employees.

The Respondents cite handwriting on the trespass notice for its contention that the
notice was issued to “supersede[] [the] trespass warning issued [to Shimabukuro] on 5–4–04.”
(GC Exh. 37B.) However, this contention ignores Dougher and Nagy’s statements to
Shimabukuro regarding her collection of dues before the trespass notice was issued. Assuming
that one of the purposes of the notice was to supersede a prior notice, the circumstances
demonstrate that Shimabukuro’s collection of dues was also a cause for the issuance of the
trespass notice.

Every time the Respondents issued and handed a trespass notice to a union
representative, the Respondents summoned the Honolulu police department and obtained the
assistance of police officers to evict the union representatives or to serve as witnesses. Indeed,
on one occasion, a Honolulu police officer came to the resort to serve as a witness, but Marsh
had already departed before the police officer arrived. It is somewhat surprising and confusing
that the Honolulu police department would allow its officers to serve in this capacity. It appears
that the Honolulu police officers were acting as part of Turtle Bay’s security department,
because the resort’s security guards could also have served as witnesses. However, every time
the Honolulu police officers came to the resort, they wore their police uniforms, so it is unlikely
they were actually serving as part of the resort’s security department. Rather, the police officers
were acting in their official capacity as police officers, with all of the attendant force and power,
as well as intimidation, which accompany their status.

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On at least one occasion in June, Dougher told Marsh that she was banned from Turtle
Bay for a year because she was a “disruptive force.” (Tr. 797.)

12. August 6, 2004

Nate Santa Maria was a representative for the Union from March 2002 to December
2002 and May 2004 to October 2004. During the latter period, Turtle Bay came under his
responsibility. He visited the property approximately 2 to 3 times a month.

On August 6, Santa Maria visited the property. He arrived at approximately 4 p.m. He
had three reasons for his visit: one, he was relatively new to the Turtle Bay team and he wanted
to introduce himself to the employees; two, he wanted to answer any questions the employees
might have; and three, he wanted to remind employees that Marsh would be on Kamehameha
Highway outside the resort on August 10 to collect dues. (As explained above, Turtle Bay had
stopped withholding union dues from employees’ paychecks and had barred the Union from
collecting dues on the resort property.) Santa Maria came to the resort around 4 p.m., and he
went initially to the employee cafeteria. He spoke to about 10–15 people in the cafeteria. He
then went to the kitchen next to the cafeteria and spoke to the kitchen workers. At this time, he
noticed that a security guard, Romeo Nauta, was following him. Nauta stayed within 5 to 7 feet
of Santa Maria.

Santa Maria spoke separately and briefly with the employees in the kitchen about the
three matters he wanted to cover. He walked to the stations of the workers and spent
approximately 15–20 seconds with each worker. As Santa Maria and Nauta were exiting the
kitchen, Nauta told Santa Maria that he was disturbing the workers and he should not talk to
them. Santa Maria disputed that he was disturbing the workers, and he proposed to Nauta that
they ask the workers. This was not done, and Nauta continued to follow Santa Maria closely to
the elevators. Santa Maria admits that he was becoming annoyed at Nauta, and he asked
Nauta why he was “being such an asshole.” They then took the elevator to the upstairs kitchen.

After they exited the elevator in the upstairs kitchen, Santa Maria approached the
kitchen workers and briefly spoke to them, just as he had done in the downstairs kitchen. Nauta
continued to follow Santa Maria within 5 to 7 feet, and he again told Santa Maria to keep moving
because he was disturbing the workers. Santa Maria and Nauta exited the kitchen, and Santa
Maria spoke to employees in the restaurant and the pool area in the same manner as he had
done in the kitchens. They walked back to the kitchen and Nauta asked Santa Maria where he
was going. Santa Maria replied he was going to the front desk area to talk to the workers there.
Nauta stopped him and told Santa Maria that he could not go there. Nauta then made a
telephone call.

Within 5 minutes, Ramos and Dougher, together with two managers and additional
security guards, arrived. They surrounded Santa Maria, with one security guard standing by the
elevator. Ramos asked Santa Maria what he was doing, and he told her. She said he was
disturbing the workers, and the Union did not have the right to talk to the workers at their
workstations. Ramos agreed that the union representative could be at the workers’ stations, but
could only say hello and nothing more. Santa Maria asked if he could reply to a worker who
might have a question, and she said no. She said anything more than “hello” needed to take
place in the cafeteria.

Dougher accused Santa Maria of disturbing the workers. Santa Maria asked Dougher to
identify any such worker, but Dougher did not reply. Dougher told Santa Maria he could not talk
to the workers in the front lobby area, and he was required to leave the hotel. Santa Maria
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refused to leave, saying the contract gave him the right to talk to the workers. At this impasse,
the parties remained standing in the kitchen for approximately 45 minutes, with Santa Maria
surrounded by four security guards, including Dougher, together with Ramos.

Then, three Honolulu police officers arrived. They spoke with Ramos, Dougher, and
Santa Maria. Santa Maria told the police officer that he wanted to leave because it was getting
late, but he would only leave through the front lobby. The police officers discussed this condition
with management, and they agreed. Santa Maria then left, escorted by and followed by the
police officers and security guards. They exited the kitchen and went through the restaurant and
the lobby to the parking lot.

The confrontation in the kitchen involving the security guards, management, the police
officers and Santa Maria occurred in front of the employees who were working there, as well as
employees, such as waitresses, who entered the kitchen during that time. The security guards
followed Santa Maria to his car. He departed at approximately 6:45 p.m.

Fred Scalzo has been a sous chef at Turtle Bay for six years. During that time, he has
spoken to Marsh and told her to leave the kitchen approximately 30 times for talking to kitchen
workers. On August 6, he claims to have seen Santa Maria in the downstairs (or main) kitchen
talking to workers in the pantry area and disturbing their work. He asked Santa Maria to leave,
and Santa Maria went to the service elevator that connects with the Palm Terrace restaurant
kitchen. Scalzo called the security department. Nauta appeared and began following Santa
Maria, starting at the elevator. Scalzo claims that Santa Maria started arguing with Nauta at the
elevator and refused to follow Nauta’s instructions to go upstairs.

Scalzo was not a credible witness. The many times he admits having previously told
Marsh to leave the kitchen because she was supposedly disturbing workers lessens the
seriousness, if not the truth, of his claim that Santa Maria was actually disturbing the workers.
Moreover, Scalzo admits that after he told Santa Maria to leave, Santa Maria went to the
elevator to go to the upstairs kitchen. He claims that he only calls security if a union
representative refuses to leave. Nevertheless, he called security despite Santa Maria following
Scalzo’s order to leave. Scalzo did not explain why he called the security department in these
circumstances. Scalzo appears to have developed an antiunion animus as evidenced by, or
from, his many complaints about union representatives’ activities. And his call to the security
department before or after Santa Maria was obeying his order to leave questions the veracity of
his claim that he only calls security when the union representative refuses to leave.

Scalzo claims that Santa Maria argued with Nauta at the elevator and refused Nauta’s
order to go upstairs. Although Santa Maria and Nauta argued at the elevator, it is not plausible
that Santa Maria refused Nauta’s order to go upstairs. Santa Maria was trying to see as many
workers as possible to cover the three things on his agenda. He had arrived at the resort at
4 p.m., and he had additional appointments in the early evening. Although Santa Maria was
annoyed at being followed, and being followed so closely by Nauta, he would not likely have
refused an order to go upstairs, which is where he wanted and needed to go, and where he did
go, to talk to the other workers.

Sonia Evans is the purchasing manager at Turtle Bay. She testified that Santa Maria
yelled “f— you” to Nauta in the presence of Scalzo and herself in the main kitchen. Scalzo did
not confirm this alleged statement by Santa Maria. Given Scalzo’s attitude toward union
representatives, and considering the nature of the alleged statement, it is not likely that Scalzo
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would have failed to confirm the statement if it had actually been made. Santa Maria did not
admit making the statement, and Nauta did not testify. Accordingly, the credible evidence does
not establish that Santa Maria yelled this expletive at Nauta.

Evans’ credibility suffers further from her tendency to at least exaggerate events that did
happen or might have happened. For example, she claims that Santa Maria was “grilling” the
employees in the kitchen. The Respondents do not suggest any reason why Santa Maria would
have grilled the employees, and no likely reason comes to mind. Santa Maria was at Turtle Bay
to inform the employees of three things. He was not there to question them, let alone grill them.
Describing Santa Maria’s actions as “grilling the employees,” when he was merely informing
them of three things and spending 15–20 seconds with them, is, at best, exaggerating.

Santa Maria admits being annoyed at Nauta for following him and calling Nauta an
“asshole” when they were at the elevator. It is certainly possible that Santa Maria called Nauta
other names, but even if he did, the confrontation between Nauta and Santa Maria at the
elevator in the main kitchen was brief and did not interrupt any work being done in the kitchen.

It is necessary to clarify what is meant by “a worker being disturbed” or “work being
interrupted” because of the possible implication of the access provision of the collective-
bargaining agreement, which provides that “there shall be no interference with the normal
conduct of business.” (GC Exh. 2.) These expressions do not include a worker or a manager
who does not like the union or does not want to see union representatives in the workplace.
These expressions also do not include greetings between the union representatives and
workers in the workplace. Indeed, Ramos acknowledges that such greetings are allowed. The
question is, what additional conversation or disturbance, if any, is allowed before it becomes
disruptive. Rather than attempt to define the meaning of disturbance or interruption, the
meaning assigned by the Respondents will be used. That is, discussions or conversations
beyond greetings, which occur in working areas between union representatives and workers,
cause disturbances in the workplace.

Taking Santa Maria’s actions on August 6 as an example, he wanted to say three things
to the workers: greet them; tell them he is available to answer any questions they might have;
and, tell them that dues would be collected in several days on the Kamehameha Highway.
Santa Maria spent about 15–20 seconds with each worker conveying this information. The
additional consideration is the time of day Santa Maria was going through the kitchens. Santa
Maria had arrived at the resort at approximately 4 p.m., and he began going through the main
kitchen at approximately 4:45 p.m. The Palm Terrace restaurant is usually open for service
between 6 p.m. and 7 p.m. But Scalzo, the only witness who could credibly address whether
4:45 p.m. was a particularly busy time in the kitchen, did not mention the time of day as being
an aggravating factor.

Nevertheless, the Respondents allege that Santa Maria was disturbing the workers, and
this claim has merit. Even though Santa Maria’s conversation with the individual workers was
brief, he was conveying information he wanted them to remember. Thus, the time it took for
Santa Maria to convey the information was likely only a portion of the time the workers’
attentions were actually diverted.

On balance, the Respondents’ contention that Santa Maria “disturbed” the workers on
August 6, within the meaning of the above definition, is credible. Nevertheless, the small
disturbance created by Santa Maria was greatly exacerbated when Nauta stopped Santa Maria
from going to the front lobby, when managers and security guards surrounded Santa Maria for
45 minutes in the kitchen waiting for the police to arrive, and when the Honolulu police officers
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came and escorted Santa Maria out of the kitchen and off the premises. Neither Santa Maria
nor the Respondents backed down during this 45-minute confrontation, with Santa Maria
correctly insisting that he had the right to walk through the work areas, and Dougher and the
security guards correctly insisting that he did not have the right to disturb the working
employees by talking to them.

13. September 23, 2004

The complaint alleges that on September 23, 2004, the Respondents, in the employee
cafeteria and in the presence of employees, unlawfully ordered Marsh to stop collecting dues.
(Complaint, para. 17(d).) Neither Marsh nor Shimabukuro testified about this event. Dougher
testified that Marsh and Shimabukuro were collecting dues in the cafeteria, and they had put
two tables together and removed the chairs to facilitate the dues collection. Dougher
approached them and told them that collecting dues was disruptive and that they were not
permitted to collect dues. After Shimabukuro said that they had a right to collect dues, Dougher
said that moving the furniture was disruptive. Dougher’s credibility has been considered above.
His credibility is not enhanced by him shifting the alleged basis for his disruption claim from
collecting dues to moving furniture. It is also apparent that moving the furniture was not the real
reason Dougher was attempting to prohibit Marsh and Shimabukuro from collecting dues. In late
2004, Dougher again told Marsh that the Union was not permitted to collect dues at Turtle Bay.

The General Counsel has not addressed the events on September 23 in the factual or
legal arguments in his posthearing brief. Accordingly, I conclude that the General Counsel has
abandoned this allegation in the complaint.

14. October 22, 2004

On October 22, Butt distributed a memorandum to all Turtle Bay employees dealing with
“Temporary Changes in Services.” The memorandum states that the changes were “[d]ue to low
occupancy.” The memorandum contains the following paragraph (GC Exh. 6):

Apparently, the union believes that its boycott and picketing of Turtle Bay
Resort is going to cause Benchmark to accept the two-year contract
demanded by the union big wigs in Washington. Unfortunately for you, your
families, and for everyone associated with Turtle Bay, the union has made
a terrible mistake. We would rather close the Resort than allow you and
your families to be used as hostages.

This memorandum was distributed to all employees before a meeting was held
concerning the memorandum. The date of the meeting was not established. The meeting was
open to all employees, but not all employees attended. The memorandum was also distributed
at the meeting. At the meeting, Butt explained to the group that his prediction of closing the
resort was based on the economic fact that if the business decreased and continued to decline,
soon there would be nothing to work with.

15. January 19, 2005

Kimberly Harmon began working as a business agent or organizer for the Union in
January 2005. Turtle Bay is her only assignment, and she goes to the resort approximately
three times a week. She began going to Turtle Bay in about the middle of January. In a typical
day at Turtle Bay, she enters the resort from the loading dock and goes to the security dispatch
window. She is handed a folder on which she writes the time of day and where she is going, and
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she signs her name. She gives the folder back to the security dispatch guard, but not before a
security guard is assigned to follow her. Every time she has gone to Turtle Bay, a security guard
has followed her.

After signing in, Harmon would go to the employee cafeteria and meet with employees.
Upon completion of such meetings, she would walk through the work areas on the ground and
first floor levels of the hotel, much like Marsh’s practice. She would greet the employees to let
them know she is there, and she would return to the cafeteria. The elapsed time between
leaving the cafeteria and returning is generally about 10 minutes.

On January 19, Harmon, who did not yet know the bargaining unit members, and her
supervisor, Laura Moye, went to Turtle Bay. Dougher followed them that day, and he stayed
within several feet of them. As Dougher was following them, he made notes of their activities in
a small, spiral notebook, and he used his cell phone. When Moye and Harmon were in the
upstairs kitchen, Moye introduced Harmon to some waitresses. Dougher approached them. He
told the employees to continue with their work, and he told Harmon and Moye that they should
not be there. Moye told Dougher that they had a right to be there and they were not disturbing
the employees. When Moye and Harmon were in the Palm Terrace restaurant, another waitress
greeted Moye. Dougher told the waitress, “You know better than that.” (Tr. 1412.) When Moye
and Harmon reentered the kitchen, Moye observed trays blocking one of the entry doors, and
she noted this in her notebook. This angered Dougher, and he confronted Moye by edging
closer to her, pointing his finger at her face, and yelling at her.

Moye and Harmon, with Dougher at their heels, then took the service elevator to the
downstairs kitchen. They walked through the kitchen and entered the bakery, a room attached
to the kitchen. During this time, Dougher told Moye that she was not permitted in the kitchens,
while Moye replied that she had a right to be there. Within one or two minutes of entering the
bakery, Dougher ordered the two workers who were working in the bakery to leave and to go to
the human resources department. Moye, Harmon, and Dougher exited the bakery. Moye and
Harmon went to the cafeteria. Moye and Harmon met some housekeeping employees in the
cafeteria, and they all discussed certain aspects of the housekeepers’ jobs. Dougher continued
to monitor Moye and Harmon, including eavesdropping on their discussions with employees of
Turtle Bay.

16. January 27, 2005

On January 27, Decoite drove Marsh to Turtle Bay. The purpose of their visit was to
collect dues in the cafeteria. Marsh had been out of work for part of January because she had
hurt her back. January 27 was her first day back on the job. Decoite dropped Marsh at the
hotel’s lobby entrance because Marsh was unable to climb the stairs at the loading dock, which
was her usual entrance into the hotel. Marsh sat on a couch in the lobby as she waited for
Decoite to return from parking her car.

As Marsh waited for Decoite to return, Dougher, who was accompanied by a human
resource official, came up to Marsh and told her she was not allowed to sit on the couch or to be
in the lobby. Marsh explained that her back was causing her discomfort and that she had trouble
walking, and she was just waiting for Decoite to return. At that point, Decoite entered the lobby,
but she was stopped by Dougher and was told to use the service entrance at the loading dock.

Marsh, with Dougher following, then walked to the closest elevator to go down to the
cafeteria. Marsh entered the elevator, but before she could press the button to go down, a guest
entered and pushed the button to go up. Dougher then stood at the threshold of the elevator to
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prevent the doors from closing, and ordered Marsh out of the elevator, telling her that she could
not use that elevator. Marsh exited the elevator and attempted to enter another elevator.
Dougher moved in front of her, bumped against her, and prevented her from entering that
elevator. Marsh’s back continued to cause her significant pain, and at this point she sat on a
bench next to the elevators.

Dougher summoned a Honolulu police officer to the scene. Dougher told the police
officer he wanted Marsh off the property, Marsh had no right to be there, and she was causing a
disturbance. The police officer told Marsh she had to leave, but Marsh told him she needed to
rest before she would be able to stand. The police officer then left.

As Marsh rested, Dougher kept insisting that she get up from the bench and leave.
Marsh asked him if he would help her stand, and he refused. After about 20 minutes, Marsh got
up from the bench and, with Dougher still following, walked to the service elevator. She and
Dougher entered the service elevator and descended to the lower level. Dougher left Marsh,
and she went to the cafeteria and rejoined Decoite.

17. January 28, 2005

At all times before January 2005, the Respondents allowed union representatives who
were at the resort on official business to park in the parking lot of the resort without charge. The
Respondents were aware of this practice because a resort employee is posted in the driveway
kiosk at the entrance to the resort, and because when union representatives would receive
parking stickers from the attendant, the representatives would validate the stickers at the
security office or the human resources office. Whether this long-standing practice was unusual
or even a benefit to the Union is unknown because there is no evidence that the Respondents
charge anyone to park at the resort, including the public. The Respondents admit they provide
free parking to the public to use the beach. (R Br., p. 233 fn. 215.) Moreover, there is no
evidence that a union representative ever came to Turtle Bay except to perform union duties
and represent the resort’s employees pursuant to the collective-bargaining agreement.

On January 28, 2005, Robert Murphy, the Respondents’ attorney, sent a letter to the
Union stating that union representatives who park at the resort will thereafter be required to pay
for parking. The Respondents instituted this change without notifying the Union or giving it an
opportunity to bargain. Murphy claimed that the reason for this change was that the
Respondents’ failure to collect parking fees from union representatives was a criminal act, citing
29 U.S.C. § 186.

18. In and after January 2005

Harmon has been coming to Turtle Bay and performing her duties since approximately
the middle of January 2005 to the present. As noted above, every time Harmon has come to
Turtle Bay to perform her duties as a union representative, she has been followed throughout
the resort and kept under surveillance by a security guard. A security guard was assigned to
follow her or was waiting to follow her when she entered the resort and signed the book at
security dispatch. Harmon was followed wherever she went in Turtle Bay, except the ladies
room where the security guard would wait just outside the door. In general, the security guards
stayed within several feet of Harmon, whether she was walking in the hotel or seated in the
cafeteria, a distance that permitted the guard to overhear conversations between Harmon and
the employees. During such monitoring, the security guards take handwritten notes about
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Harmon’s activities. Following are several examples of security guards following and surveilling
Harmon in the parking lot at Turtle Bay while she was performing her duties as a union
representative.

a. On February 10, 2005, Adela Trilles, a housekeeper, asked Harmon to walk with her
from the loading dock to the parking lot. Because Harmon is under continual surveillance at
Turtle Bay, employees sometimes ask to have a discussion with Harmon in the parking lot. On
February 10, Trellis approached Harmon at approximately 4 p.m., and Trellis’s shift had just
ended. They walked into the parking lot discussing a union-related matter regarding the
housekeeping department. While they were having their discussion in the parking lot, they
noticed two security guards were following about 10 feet behind them and were observing them.
Trellis ended the conversation at that point and departed. Harmon immediately asked one of the
guards if they had followed Harmon and Trellis, and the security guard replied, yes. This was
the first time that Trellis, a 25-year employee at Turtle Bay, had been followed by security.

b. On March 3, 2005, Harmon met Trellis and three other housekeepers in the parking
lot. These housekeepers’ shift had just ended and they were going home. As Harmon, Trellis,
and another housekeeper were trying to have a conversation regarding work issues, a security
guard named Rudy, who was in a golf cart, drove past them and close to them. The
housekeepers pulled Harmon out of the way and toward a more protected location on the side
of their parked car. Rudy quickly came close to where they were, slowly passed them, and
stopped at the back of their parked car, about 3 to 10 feet away. Three of the housekeepers got
into the car, but Trellis continued to talk with Harmon. Rudy then said, “That’s enough, that’s
enough.” Trellis then ended her conversation with Harmon and got into the car and departed.
The housekeepers asked Harmon to call them at home.

c. On March 3, 2005, Harmon was at Turtle Bay for much of the day. Rudy was the
security guard who followed Harmon throughout the day on March 3. Nalu Webb is employed as
a doorman at Turtle Bay. During the day, Webb asked Harmon to help him with some work
issues. Webb’s shift ends at 10 p.m., so Harmon agreed to return to the resort when he got off
work so that they could confer. They met in the cafeteria after Webb’s shift, and Rudy, who was
still surveilling Harmon, was observing Harmon and Webb from the table next to them while they
tried to have a discussion. Harmon asked Webb if he would like to finish their conversation
outside, and he agreed.

The parking lot was very dark, but they stood under a street light on a curbed island in
the parking lot. When they finished their conversation, Webb went to his car, and Harmon
turned around and saw Rudy on his golf cart. Rudy drove past Harmon and drove toward the
security department. She had not seen Rudy in the parking lot prior to this time.

d. On March 10, 2005, Harmon and Stephen Dela Cruz, who is employed in the
maintenance department at Turtle Bay, had arranged to meet so that Dela Cruz could give
Harmon some signed petitions supporting the Union’s position in the ongoing contract
negotiations, and Harmon could give Dela Cruz more blank petitions for signatures. They met
by the loading dock in front of the security dispatch office after Dela Cruz’s shift ended at 4 p.m.

A security guard named Joshua was watching Harmon and Dela Cruz when they were
on the loading dock. Dela Cruz was carrying the petitions in a bag, but after seeing that Joshua
was monitoring them, he did not give the petitions to Harmon. Instead, Dela Cruz motioned for
Harmon to follow him off the loading dock and into the parking lot. As they walked through the
parking lot, Joshua continued to follow them, staying about 4–7 feet behind them. Dela Cruz
and Harmon walked through one parking lot and into the employee parking lot to Dela Cruz’s
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car, with Joshua close behind. Dela Cruz placed his bag in his car, and as inconspicuously as
he was able, removed the petitions from the bag and gave them to Harmon, all the while being
monitored by Joshua.

19. March 5, 2005

On March 5, Harmon went to Turtle Bay and was performing her regular duties. Harmon
was walking through the Palm Terrace kitchen, and John Dutson, the new manager of the
restaurant, told her she was not allowed to be there. Harmon told Dutson that she disagreed
with him and that she had a right to be there. Dutson said he had a memorandum that said a
union representative was not allowed in the kitchen. Harmon asked to see the memorandum.
Dutson said he would get it, and he turned and walked away. Harmon waited, and she then
went to Dutson’s office, but Dutson could not be found and did not return.

Harmon eventually returned to the cafeteria. As she was sitting there waiting for more
employees to arrive, Dougher entered. Dougher walked directly to Harmon and said in a loud
voice that he can tell Harmon where she can and cannot go. He repeatedly called her stupid. He
told Harmon that she is not permitted to stop employees from working. He said and repeated
several times that he was going to discipline any employee that Harmon talks to outside of the
cafeteria. Harmon wrote in her notebook some of Dougher’s comments. When he saw this, he
became even more enraged. Dougher asked Harmon what she was writing, and she said,
“When you do things like this, we write them down for the NLRB.” Dougher responded by
yelling, “The NLRB doesn’t run me, the NLRB doesn’t know what the hell is going to [sic] here.”
and “I’m not interested in the NLRB or the rights or anything right now.” (Tr. 1481; 3558; 3684.)
Employees were present in the cafeteria throughout Dougher’s tirade.

Dougher left the cafeteria, but he returned after several minutes. Dougher continued his
crude and nasty ranting at Harmon, adding that she was a liar. This latter epithet apparently
referred to Harmon’s statement to Dutson that she had a right to be at Turtle Bay, a right that
Dougher disputed. Dougher then placed two pieces of paper in front of Harmon to (allegedly)
prove that she had no right to be at Turtle Bay. These pieces of paper are from some booklet or
folder kept by and prepared by the resort’s management. When Dougher finally left the
cafeteria, several employees who had witnessed his actions came over to Harmon and asked
her if she was all right.

D. Discipline of employees

1. May 30, 2005

Jeannie Martinson is a hostess at the Palm Terrace restaurant. She has been employed
at Turtle Bay for 25 years. On May 21, Turtle Bay employees participated in a one-day strike.
On May 22, Martinson was speaking to a cook in the kitchen of the restaurant. The cook said,
“Looks like all the young kids worked yesterday.” Martinson replied, “Oh, looks like we are
working with a bunch of scabs.” (Tr. 348.) Martinson was joking with the cook, and they both
were laughing during their conversation. Nothing more was said by Martinson on this subject.
Martinson made no threats or physical gestures or contact with or toward anyone.

Leslie Toy, a waitress who had been employed at the resort for approximately six
months, was in a corner of the kitchen setting up trays during this conversation, and she
overheard Martinson’s reference to scabs. Martinson did not know that Toy had overheard her
brief discussion with the cook. Toy was not offended or threatened by Martinson’s use of the
word “scabs.” Toy made no complaint to anyone about what she had overheard.
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Several days later, Toy’s managers, John Dutson and Joseph Maher, approached her
and asked her to follow them to the human resources office where they met with Ramos.
Dutson or Maher told Toy that he had heard that Toy had overheard Martinson’s conversation
with the cook. Toy then confirmed what she had overheard Martinson say to the cook. Ramos
suggested to Toy that such a statement threatened or intimidated her, but Toy denied that she
was threatened or intimidated. Neither Ramos nor the managers asked Toy to provide a written
statement.

On May 28, approximately one week after Martinson’s reference to “scabs” in her
conversation with the cook, Ramos issued a memorandum to all Turtle Bay employees entitled
“Employee Action – Walk Out.” (GC Exh. 22.) That memorandum included the following
statement: “Those that chose [sic] to work during an action (walkout) have the right to work and
their decision to work should also not meet with snide remarks (scab), harassment and
confrontation on the picket line and and [sic] at work.”

On May 30, Maher delivered a “Corrective Action Form” to Martinson, correcting and
warning her because of her statement to the cook on May 22. (GC Exh. 21.) Maher and Ramos
signed the form in which they accuse Martinson of displaying “inappropriate, disrespectful, and
unjustified behavior towards a fellow employee by calling her a ‘scab.’” The form also contains a
threat that if such behavior should happen again, Martinson could receive “decision making
leave, or if your behavior is more severe, a suspension/termination.”

2. June 10, 2005

Timothy Barron is a banquet waiter at Turtle Bay and has been employed at the resort
for 28 years. He is a shop steward and has held that position for approximately 5 years. Barron
participated in the one-day strike on May 21 by walking a picket line with other employees in
front of the resort. Barron walked the picket line from 5:30 a.m. to the evening.

On June 4, Barron was leaving work at the end of the day and was “swiping out” at the
time clock near the security dispatch window and the loading dock, as all employees must do.
Eric Baeseman, a valet who has been employed at Turtle Bay for approximately 9 years, was at
the security dispatch window at the same time. Barron was leaving work and Baeseman was
coming into work. Baeseman is a member of the bargaining unit, but he resigned his union
membership in approximately June 2005.

Barron asked Baeseman if he had crossed the picket line on May 21. Baeseman said he
did. Barron said that people would think of Baeseman as a scab. Baeseman replied that he had
to feed his family. Barron reminded Baeseman that Barron and a number of employees had not
crossed the picket line, and that he also had to feed his family. Baeseman said he would cross
the picket line again if there were another walkout, and Barron repeated that people would think
of him as a scab. Barron claims that he did not directly call Baeseman a scab, and that claim is
true. Barron said that others would regard Baeseman as a scab. However, as a practical matter,
the effect of Barron’s statements was to label Baeseman as a scab even though Barron did not
directly call Baeseman a scab. In any event, Barron made no threats or physical gestures or
contact with or toward anyone.

Baeseman was not a credible witness when he was describing his encounter with
Barron. In describing what he claims occurred between himself and Barron, he was cheerful,
even flippant. When describing his reaction to Barron’s alleged statements, Baeseman twice
said, “I’m like whoa.” (Tr. 2093.) This testimony was given in a casual, lighthearted tone, a tone
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that was inconsistent with the event being described and with Baeseman’s alleged reaction to
Barron’s comments. Indeed, Baeseman claims that Barron called him a scab three times,
making Baeseman feel upset and uncomfortable, so uncomfortable that he immediately
reported Barron’s comments to Anthony Hite, a security guard. Baeseman continued his
lighthearted approach to this event by describing how he reported the event to Hite. Baeseman
testified that he told Hite, “I don’t appreciate what Tim is saying to me. He’s calling me a scab,
dah, dah, dah.” (Tr. 2095.) Again, the tone of this remark was casual, even flippant. Moreover,
Baeseman’s testimony likely does not accurately describe what Baeseman actually told Hite.

Baeseman also displayed a bias, vivified through exaggeration, similar to the tendencies
displayed by other Turtle Bay employees, such as Sonia Evans (see above), and Derek
Mendivil, (see below). For example, Baeseman testified on cross-examination that Barron used
vulgarity against him during their encounter at the security dispatch window. He then described
his encounter with Barron and said that Barron’s tone was “like bold lettering.” (Tr. 2106.)
Baeseman then pretended surprise when counsel explained that when he had asked Baeseman
about vulgarity, he meant swear words. Baeseman then admitted that Barron had not used
swear words. Thus, Barron did not use vulgarity in his encounter with Baeseman, and
Baeseman’s statement to the contrary was an exaggeration and a misrepresentation.

Baeseman claims that Barron’s comments made Baeseman feel upset and
uncomfortable. This testimony is not credible, a conclusion supported by Baeseman’s demeanor
in describing the event. At most, Baeseman knew that the resort had recently issued a
memorandum saying that employees who cross the picket line should not be called scabs, and
since Barron told him that he was being called a scab, he could get Barron, a shop steward in a
union that Baeseman had just quit, in trouble by reporting the event to the security department.
Moreover, the fact that Baeseman manufactured his reaction to Barron’s scab comment is
shown by Baeseman’s statement to Barron, after they both had completed security office
reports on the incident, that “it’s up to me to let it [Barron’s comment] bother me.” (Tr. 2098.)

The practical difference between Barron’s description of the event and Baeseman’s
description is not as great as the technical difference. Practically, Barron told Baeseman that
others regarded him as a scab. However, Baeseman knew that Barron was associated with
many people who considered Baeseman to be a scab. Nevertheless, Barron did not actually call
Baeseman a scab. Baeseman may not have appreciated the difference at the time, but perhaps
he would have if he had not so quickly reported Barron to the security department. In its ongoing
dispute with the Union, the Respondents developed a climate at Turtle Bay that encouraged
employees to report other employees who said anything against Turtle Bay. This climate
exacerbated the tensions among the employees and resulted in minor disagreements and
retorts being blown out of proportion. In any event, the Respondents contend that Barron called
Baeseman a scab, and this is the single reason for the discipline of Barron that followed.

When Baeseman said he was going to file a report with the security department, Hite
was coming through the double-doors that separate the time clock area from the security
department. Hite asked Barron what he had said, and Barron disingenuously said that his “scab”
remark dealt with a scab he had on his hand. Baeseman said he wanted to file a report, and
after he said this, Barron said that he also wanted to file a report. Hite then took Baeseman into
the security offices and stayed with him and assisted him in preparing his report. Hite witnessed
Baeseman’s report. Barron was left on the loading dock and given a form to complete. No
security guard assisted Barron or witnessed his report. The difference between the treatment of
Baeseman, an antiunion employee, and Barron, a prounion employee, by the security guards is
striking.

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When Barron completed his report and was leaving, Hite asked him if he was coming in
or going out. Barron said he was leaving. Hite replied that he would have to “write you up”
because Barron was swiping out wearing his regular clothes. Turtle Bay employees wear
uniforms at work. They are supposed to change their clothes after they swipe out, not before.

The next day, June 5, Hite solicited Baeseman to fill out another report. This second
report deals with comments between Baeseman and Barron as they were leaving the security
office on June 4. Barron told Baeseman that he could call Baeseman a scab in public, i.e., off
Turtle Bay grounds. Hite was present for this encounter, and Hite told Barron that he could not
call Baeseman a scab in public. (R Exh. 13.)

On June 10, Barron came to work, and as he entered the hotel, several security guards
met him at the loading dock. One guard, Nagy, escorted Barron to Dougher’s office. Dougher
allowed Harmon to represent Barron. Dougher asked Barron what happened on June 4, and
Barron told him what occurred, consistent with the report Barron had filed. (GC Exh. 34.)
Dougher told Barron that he was being suspended pending an investigation, and followed up
with a written notice of Barron’s suspension.

On June 11, Ramos met in her office with Barron, who was represented by Moye and
Harmon. Barron provided a more complete, written report of the June 4 conversation between
himself and Baeseman. Ramos upheld the suspension imposed by Dougher and set a return to
work date of June 15. Accordingly, Barron was suspended for 5 days. In upholding Dougher’s
suspension, Ramos made clear that the reason for the suspension was Barron having called
Baeseman a scab more than once on June 4. (GC Exh. 24.) Barron was suspended for 5 days
without pay. This is the first time Barron had received any discipline in his 28 years at the resort.

When Barron first explained his remarks to Hite, he said that his statement to Baeseman
about a scab referred to a wound that he had on his hand. This explanation was not truthful.
Indeed, under these circumstances, the explanation was ludicrous. The question is what effect
this false explanation has on Barron’s credibility.

Barron’s encounter with Baeseman at the security dispatch window occurred about a
week after Ramos’s May 28 memorandum dealing with employee conduct. In that
memorandum, Ramos cited the word “scab” as the only example of what one employee should
not call another. (GC Exh. 22.) Both Barron and Baeseman knew about the memorandum. The
union-management relationship at Turtle Bay had been deteriorating for the previous 18
months. The open hostility of the Respondents to the Union was apparent. Examples of this
hostility include the shadowing of union representatives whenever they came onto the resort
property; bringing in the Honolulu police several times to remove union representatives from the
property; Butt’s October 22 memorandum threatening to close the resort; Dougher shouting that
he would discipline anyone seen talking to the union representative; and, Dougher belittling
Harmon in the employee cafeteria. Barron was a union supporter and a shop steward. He had
been employed at the resort for 28 years. He was understandably concerned, and his false
explanation to Hite—that his use of the word “scab” referred to a wound on his hand—grew out
of that concern. At the hearing, Barron presented as an honest and credible witness.

On June 11, 1 week after Baeseman’s encounter with Barron, Baeseman said to a
coworker, “This is bullshit and you better back off.” Baeseman received a suspension of 3 or 4
days for making this threat against a coworker. In contrast, Barron did not use vulgarity against
Baeseman and did not threaten him.

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3. July 1, 2005

Mark Feltman was a first class maintenance employee at Turtle Bay from September
2004 to July 1, 2005. On November 4, 2004, within 2 months of when he started working at
Turtle Bay, Feltman made a complaint to Ramos about Marsh. Feltman complained that Marsh
had remained at his lunch table too long after he asked her a question during lunch. Ramos
responded to this relatively minor matter by preparing a two-page affidavit concerning Feltman’s
lunch meeting with Marsh. Ramos then called Feltman into her office to sign the affidavit, which
Feltman did.

Within approximately 1 month of Feltman’s complaint against Marsh, Ramos had a
discussion with Henry Lacar about Feltman, and they agreed that Feltman was a good
employee. They discussed raising Feltman’s pay. Ramos then told Feltman he was doing a
good job at the hotel and his supervisor, Lacar, was pleased with Feltman’s work. Ramos also
told Feltman that he might be getting a raise in pay, which would be above the limits established
in the current collective-bargaining agreement. She told Feltman to keep up the good work.

Feltman never did receive a pay raise. On February 22, 2005, Feltman came to Ramos’s
office to pick up his lunch ticket. He was wearing a union button. Ramos was surprised and
commented that Feltman was wearing a union button. Ramos said, “I thought you signed the
antiboycott petition that Roger Carpus was circulating around the hotel.” Feltman said, “No,” and
Ramos replied, “Oh, oh.” (Tr. 516.)

On March 3, 2005, Feltman again went to Ramos’s office to pick up a lunch ticket. He
was wearing a union button. He met Sandi Grundmanis, the training manager in the human
resources department. Grundmanis saw the union button and told Feltman, “I thought you were
[a] more sensible guy, but who am I.” (Tr. 517.)

On May 21, Feltman participated in the 1-day strike by walking the picket line with other
employees in front of the resort. Feltman walked the picket line from 5:30 a.m. to 6:30 p.m.
Dougher was present throughout the day observing the picketers. At one point during that day,
Feltman was having a conversation with his uncle who was staying at Turtle Bay and who had
just crossed the picket line in his car. Dougher came up to Feltman and interrupted Feltman’s
conversation with his uncle, and told Feltman’s uncle that he must leave that location. On
another occasion during that day, John Dowd, who is in charge of public relations for Turtle
Bay’s golf courses, was leaving the property in his vehicle. He brought his vehicle within inches
of the person who was directing traffic for the picket line. Feltman asked him to move back.
Dowd said to Feltman, “Do you know who I am? You know who you are talking with?” Feltman
replied, “I don’t care who you are. Move your car back. You are too f—ing close to the person.”6
(Tr. 524–525.)

On June 9, 2005, a hearing was held in federal district court for the District of Hawaii in a
lawsuit filed by the Respondents against the Union. The Respondents were seeking a
temporary restraining order against the Union. The district court denied the Respondents’
application for a temporary restraining order. Among the Respondent’s witnesses at the hearing
was Derek Mendivil. Mendivil is employed at Turtle Bay as a general cleaner. He started
6 The word fuck is designated throughout this decision as f—, and, as a present participle,
f—ing.
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working for Turtle Bay in 2004. After Mendivil testified in federal court on behalf of the
Respondents, a hotel manager instructed him that if anyone asked about the union, or if anyone
asked him about his day in court, he must report this to his manager, Tonilynne Cano.

When Mendivil came to work on June 10, he was “feeling good.” (Tr. 2450.) Security
guard Kamalani Keliikuli approached him, and she asked if he was all right. She said to
Mendivil, “If anyone bothers you, you let the security know.” She also said, “You know, there are
four union representatives here, and, if anything happens, you let us know.” (Tr. 2439.) At this
point, Mendivil started feeling scared. Mendivil went to the cafeteria, and he saw four union
representatives there. The union representatives made no statements to or gestures toward
Mendivil. Indeed, Mendivil told Keliikuli that the union representatives had not seen him.
Nevertheless, Mendivil claims that he remained scared.

Mendivil exited the cafeteria, went to the bulletin board that was posted in the hallway
next to the security office and the human resources office, and began reading some of the
postings. Feltman had just exited the men’s room on the lower level of the hotel and was
returning to the maintenance shop. He passed behind Mendivil who was reading notices on the
bulletin board. As Feltman was walking by Mendivil, he greeted Mendivil by saying, “Howz it,” a
local expression meaning how are you. Mendivil said hi. Feltman and Mendivil were
acquaintances at work, but they did not socialize together. Feltman said, “How was court
yesterday?” Mendivil remained looking at the bulletin board, and he shrugged his shoulders, but
he did not respond. What happened next is disputed.

Mendivil states that Feltman said, “F—ing ass” as he continued walking back toward the
maintenance shop. Feltman states that after Mendivil shrugged his shoulders, but did not
otherwise respond to Feltman’s question about court, he continued walking back to the
maintenance shop without saying anything further.

Mendivil immediately left the building and went to his work area where he told Cano
what had happened. Cano is the director of housekeeping. Cano called Dougher at the security
office and reported what Mendivil had told her. Cano then told Mendivil to go to the security
office and fill out a report on what Feltman had said. Mendivil went to the security office, and
Cano followed him “to give him support.” (Tr. 2368.) Before Mendivil reached the security office,
he met Dougher who was coming from that office. Dougher was responding to Cano’s
telephone call and was going to see Feltman. After Mendivil arrived at the security office, he
claims that he was so disturbed by Feltman’s statement that he was unable to express himself.
This claim is not credible because Mendivil was observed when he was waiting in the security
office for Cano to arrive. Mendivil was calm and appeared to be patiently waiting for his turn. In
any event, when Cano arrived, she offered to write the report for Mendivil, and he agreed. In
Cano’s report, she wrote that Feltman said “f—ing ass” to Mendivil before walking away. (R Exh.
18.)

Dougher went to the maintenance shop and told Feltman, “I need to talk to you. You
probably need a representative. Derek said you harassed him in the hallway. But I can tell you
right now, I[‘ll] meet you in your boss’s office in ten minutes.” (Tr. 531.) Feltman went to the
cafeteria. Gill happened to be present in the cafeteria with Harmon and Moye, and Gill agreed to
represent Feltman. The meeting was held in Lacar’s office with Dougher, Lacar, Cano, Mendivil,
Feltman, and Gill. Dougher was waiting for Cano and Mendivil, so he did not begin the meeting
until they arrived. When Cano entered, she handed the report she had written for Mendivil to
Dougher.

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Dougher read the report aloud. He then handed the report to Gill for him to read.
Dougher asked Feltman to explain what happened. Feltman explained, but he did not admit to
having cursed at Mendivil. Nevertheless, Feltman’s statement to Dougher does not appear to
have had any impact on Dougher’s decision. Dougher stated that Feltman was suspended
pending investigation because Feltman had violated the Respondents’ “zero-tolerance policy”
on harassment, retaliation, and workplace violence.

Dougher explained that the Respondents’ zero-tolerance policy meant that Turtle Bay
makes a note of every instance of harassment, retaliation, or workplace violence. This policy
does not mean that Turtle Bay would or would not do anything when it believes that
harassment, retaliation, or workplace violence has actually occurred. The policy simply requires
the resort to make a note of it. What the resort may do as a result of harassment, retaliation, or
workplace violence, if anything, depends on the facts of each case.

There is no evidence that Mendivil was actually upset or agitated during the meeting in
Cano’s office, nor any evidence that he displayed those characteristics. After the meeting,
Mendivil was escorted back to the security office to fill out an injury report. (GC Exh. 26.)
Mendivil claims that at the time he completed this report, he “felt scared and terrified, and I was
all shaken up, and I couldn’t concentrate.” (Tr. 2427.) This injury report is the only written report
of the incident completed by Mendivil, and he does not mention that Feltman cursed at him in
the hallway. In Mendivil’s report, the only listed cause for his alleged distress was his being
required the day before to go to court and testify.

After Mendivil completed the injury report, Cano told him to go to the emergency room at
the local hospital. Accordingly, Mendivil went to the emergency room. Security guard Keliikuli
followed Mendivil to the hospital because Mendivil requested that she accompany him. Mendivil
felt it would be easier for him if the security guard were there to tell the doctor what had
occurred. It should be noted that, after his encounter with Feltman, the first three times Mendivil
was asked to tell what happened, he twice had someone else tell the story. And, the one time
Mendivil wrote his own report, he failed to mention that Feltman had cursed at him.

Keliikuli told the emergency room physician, Dr. Moire, of the circumstances surrounding
Mendivil’s injury. Moire recommended that a coworker should be present while Keliikuli
explained what had occurred, but no coworker was brought in. Moire said that Mendivil’s injury
did not warrant any time off from work and she was reluctant to approve it. However, Mendivil
and Keliikuli persisted, and Moire did approve time off for Mendivil. Mendivil then stayed out of
work for a week.

The next day, Ramos, who had been off the island, scheduled a meeting in her office to
discuss Feltman’s suspension. Present at the meeting were Ramos, Feltman, Harmon, and
Moye. Feltman explained to Ramos what had occurred during his encounter with Mendivil,
which was the same explanation he had given to Dougher the day before. Ramos said that she
would conduct a full investigation and would contact Moye and Harmon.

There is no evidence that Ramos conducted any investigation into the encounter
between Mendivil and Feltman. However, she did discover from Lacar, assuming she did not
already know, that Feltman participated in the 1-day strike and walked the Union’s picket line on
May 21. In any event, on the day Ramos met with Feltman, Harmon, and Moye, she decided to
terminate Feltman’s employment. On approximately July 2, Ramos sent Feltman a written
notice that his employment with Turtle Bay was terminated effective July 1. The reason given for
Feltman’s termination was that he had threatened Mendivil, a witness in a federal court case,
which was a federal crime.
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In considering whether Ramos’s assertion that Feltman had committed a federal crime is
reasonable or whether Ramos’s assertion is a pretext for the Respondents’ real reason for
terminating Feltman, the first question is whether Feltman actually called Mendivil a “f—ing ass.”
The preponderance of the evidence supports Feltman’s claim that he did not.

Mendivil professes to have such a weak constitution that, on the basis of a fellow
employee calling him a “f—ing ass,” he becomes so emotionally distraught that he goes to a
hospital emergency room. Mendivil compounds that exaggerated and extravagant reaction by
staying out of work for one week because of his “injury.” The Respondents have not objected to
Mendivil’s overblown reactions. Indeed, the Respondents have supported and encouraged
Mendivil’s reactions, at least in part because of the appearance of legitimacy those reactions
give to the Respondents’ discipline of Feltman. In other words, since Mendivil went to the
hospital and stayed out of work for a week, surely Feltman must have done something wrong, if
not criminal.

There are several reasons why Mendivil’s present account of the incident is not credible.
First, Mendivil’s demeanor showed him to be impressionable and unassertive. Mendivil
presented as a submissive person who would be susceptible to authoritative and authority
figures. Thus, Mendivil did not even complete the initial report of his encounter with Feltman.
Instead, Cano completed the report for him. Moreover, Mendivil is a family friend of Cano,
Mendivil’s father is a friend of Cano, and Mendivil went to school with Cano’s son. Mendivil and
Cano are known to be good friends. (Tr. 2512.) In addition, Mendivil wanted a security guard to
accompany him to the hospital in order to tell the emergency room physician what had
happened.

Although Cano wrote the report for Mendivil, her reliability is problematic. For example,
Cano testified that she wrote her own report of the incident between Mendivil and Feltman on
June 10. A day or two later, Ramos told Cano that Cano’s report had been lost, and Ramos
requested Cano to prepare another report. Cano testified that she then prepared a second
report, which she did completely from memory, and that she used no documents to help her in
preparing the second report. Cano repeated this testimony on direct and on cross-examination.
Ramos later found Cano’s first report. An examination of the two reports shows that the first one
and one-half pages of Cano’s second report is a verbatim copy of her first report, including
spelling and grammatical errors. It is evident that Cano copied her first report when she was
preparing her second report, and that her testimony denying this is not true. Thus, Cano, in an
attempt to enhance the reliability of her report by demonstrating that she recalled the incident in
the same manner several days after the incident, actually shows that she is not credible.

When Mendivil came to work on June 10, the security guard warned him that union
representatives were in the cafeteria. There is no evidence that the union representatives had
done anything to warrant “warning” persons about their presence. The security guard then told
Mendivil to report to her if the union representatives bothered him. Mendivil testified that after
these (apparently unnecessary) warnings, he became scared. Thus, the Respondents are
responsible for scaring Mendivil, not the union representatives or Feltman. And, while Mendivil
was in this tense and vulnerable state brought on by the Respondents, he had a brief encounter
with Feltman.

For all these reasons, Mendivil would likely accept the truth of whatever Cano wrote for
him in her report. At the least, there is substantial confusion between what is contained in that
report and what Mendivil might independently remember. Also, while Cano wrote in her report
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that Feltman cursed at Mendivil, Mendivil failed to mention Feltman’s curse in the one report
Mendivil wrote after the encounter. On balance, Mendivil was not credible when he testified that
Feltman cursed at him as Feltman was passing by Mendivil at the bulletin board.

Adding further confusion to Mendivil’s claim at the hearing that Feltman called him a “f—
ing ass” is Mendivil’s accusation that another employee, David Stone, called him the same
name on a previous occasion. Mendivil claims that Stone squirted Mendivil with a water gun and
called Mendivil a “f—ing ass.” Stone received no discipline for these actions. Curiously, there is
no evidence that Mendivil went to the hospital after Stone called him this name, nor is there any
evidence that Mendivil took a week off from work after Stone called him this name. However,
the lack of such outlandish reactions could possibly be explained by the fact that Cano did not
tell Mendivil to go to the hospital after Mendivil’s encounter with Stone, but Cano did tell
Mendivil to go to the hospital after Mendivil’s encounter with Feltman. Nevertheless, this latter
explanation tends to show that the Respondents were otherwise motivated to punish Feltman,
but they were not similarly motivated to punish Stone.

Alternatively, Mendivil’s failure to go to the hospital after Stone called him a “f—ing ass”
tends to show that neither Stone nor Feltman called Mendivil a “f—ing ass.” The coincidence
between the events, with Mendivil being called the exact same name at different times by
different persons, strains credulity. Moreover, this conclusion explains Mendivil’s widely
divergent reactions to the same epithet. In any event, Mendivil claims that two different
employees called him the same name on two different occasions and allegedly for two different
reasons. In light of Mendivil’s impressionable nature, and the suggestive and solicitous actions
of Cano and the security guards, it is also possible that Mendivil confused the incidents and
attributed to Feltman what Stone had previously called Mendivil. Both of the foregoing
explanations are consistent with Mendivil’s demeanor, which was marked by hesitancy, unease,
and obsequiousness. In short, Mendivil was not a credible witness.

Considering all of the circumstances, I conclude that the following occurred at Mendivil’s
meeting with Feltman. After talking with the security guard, Mendivil became upset and scared.
Feltman saw Mendivil and asked him how his day at court was. This increased Mendivil’s fright.
Feltman did not say “f—ing ass” to Mendivil. However, because Mendivil had been told by a
hotel manager to report to his supervisor if anyone asked him about his day in court, and
because the security guard had solicited Mendivil to report any union person who bothered him,
Mendivil went to his supervisor, Cano. Sometime after talking with Cano and Dougher, but not
before completing his own report of the incident, Mendivil became convinced that Feltman had
called him a “f—ing ass,” possibly confusing his previous Stone encounter with his present
Feltman encounter. Mendivil did not appear to be a person who would prevaricate about his
encounter with Feltman. However, Mendivil also did not appear to be a person who was fully in
control of his thoughts, and to that extent, his recollection.

In addition, Mendivil had previously complained to his managers about another
employee, Aso Lautalo, who Mendivil reported had pushed and harassed him. Like Stone, and
despite the Respondents’ claim of having a zero-tolerance policy for harassment, Lautalo
received no discipline for this harassment and physical assault.

With respect to Mendivil’s allegation that Feltman cursed at him, Ramos acknowledged
that employees quite frequently use “f—,” and if she suspended employees, much less
terminated them, for such conduct she “wouldn’t have a staff, honestly.” (Tr. 432.) Accordingly,
the Respondents treat instances of cursing between employees by either imposing no discipline
(Stone) or imposing discipline that is less severe than termination. For example, Geronimo
Pinacate was suspended for repeatedly using f— to a coworker, and for continuing to use such
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profanity after he was told to stop. Also, on May 21, 2005, Kaleo Delosantos, while crossing the
picket line, told an employee on the picket line to “f— off.” Delosantos received a written
warning for this conduct. There is no evidence that any employee has been terminated for
cursing, except Feltman. Moreover, Feltman did not first receive a written warning or any other
form of progressive discipline.

Ramos’s protestation of honesty insofar as her assertion that she would not be able to
maintain a staff if she disciplined every employee who said “f—“ on the job warrants an
explanation of why Ramos otherwise was not a credible witness at the present hearing. Ramos
was the Respondents’ designated representative to assist the Respondents’ attorneys during
the hearing. Accordingly, Ramos was permitted to remain in the hearing room throughout the
trial. A rule on witnesses was granted at the beginning of the hearing and was explained to
Ramos while she was on the witness stand. Ramos was instructed that the rule on witnesses
“means that anyone who is in the hearing, when they get off the witness stand, whether they are
going to get back on or not, cannot talk to anybody else who is going to be a witness about the
things that went on in the hearing.” (Tr. 203.) Moreover, Ramos heard this same or similar
instruction repeated to every witness at the hearing.

Ramos was also present when the purpose of the order was explained (Tr. 272):

. . . the reason is, is that by discussing it [testimony in the hearing] with
other people, you run the risk of having people who will be witnesses
hearing what has occurred in this courtroom and then having them or
having us risk those people conforming their testimony to the testimony
that has already been given or, on the other hand, not conforming it but
making it different from the testimony that has already been given.

Our intent and desire is to have the testimony of witnesses with as much
integrity as is possible. We want to have a good, clean hearing so that
everyone’s rights are protected. So by talking about the testimony before
the hearing is over, you run the risk of someone, I don’t know the right
word, but poisoning the hearing, poisoning the testimony that might come
later on.

Thus, Ramos knew what the order prevented her from doing, and knew that the purpose
of the order was to insure a proper hearing where everyone’s rights would be protected.

The present hearing was held in two sessions, covering two weeks in July 2005 and two
weeks in October 2005. After the July session ended, the Respondents’ attorneys provided
Ramos with a copy of the transcript of the July session. Ramos then contacted Rebecca Farrell,
who is the spa director at Turtle Bay and is employed by Benchmark. Farrell had participated
with Ramos in the disciplinary meetings on June 11 involving Barron and Feltman. Ramos knew
that Farrell would be a witness for the Respondents when the hearing resumed in October.
Ramos admits she told Farrell to come to Ramos’s office and read Feltman’s testimony because
Feltman had “lied on the stand.” (Tr. 2926.) Farrell testified that Ramos told her to review the
testimonies of both Barron and Feltman, and to review these testimonies in order to jog Farrell’s
memory. (Tr. 2712.)

According to Ramos’s version, Ramos was coaching Farrell by telling her that Feltman
had lied in his testimony, and that Ramos expected Farrell’s testimony to be different. However,
Farrell contradicted Ramos’s testimony and said that Ramos had told her to review both
Feltman’s and Barron’s testimonies. In any event, Farrell came to Ramos’s office and read the
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transcripts on Ramos’s computer. Ramos also printed hard copies of the transcript for Farrell.
Moreover, Ramos shredded the transcripts after Farrell returned them to Ramos’s office,
indicating that Ramos knew she had violated the order against disclosure and was destroying
the evidence of her violation.

Ramos deliberately and willfully violated this judge’s order prohibiting the disclosure of
witnesses’ testimony. Moreover, neither Ramos nor the Respondents’ attorneys disclosed
Ramos’s violation of the order. Rather, Farrell disclosed this on cross-examination. Indeed,
Farrell disclosed the violation in a casual, off-hand manner, indicating that Farrell was not aware
of the order during her testimony, and/or that Ramos routinely violated the order.

It is one thing for a single witness to violate an order prohibiting the disclosure of
testimony to prospective witnesses. But it is another matter when the Respondents’ designated
representative—who was present for the entire hearing and heard the testimony of all the
General Counsel’s witnesses, who is Turtle Bay’s director of human resources, and therefore
possesses substantial authority over the employees at Turtle Bay, who was individually
instructed not to disclose testimony, and who heard similar instructions given to every other
witness—violates the order and does so in such a deliberate, calculated manner. On balance,
and considering Ramos’s demeanor and her actions away from the witness stand, Ramos was
not a credible witness during the present hearing.

Even if one were to accept the truth of the Respondents’ charge against Feltman, viz.,
that he said “f—ing ass” to Mendivil, there is a substantial question concerning what Feltman
was referring to. It is undisputed that Feltman asked Mendivil, “How was court yesterday,” and
that Mendivil did not answer Feltman. If Feltman then called Mendivil a “f—ing ass,” he could
just as likely, or more likely, have been referring to Mendivil’s refusal to answer him as anything
else. Indeed, the alleged epithet immediately followed Mendivil’s refusal to answer, not the
reference to federal court. Moreover, Feltman made no reference to Mendivil’s status as a
witness in the federal court case. Under the circumstances, it is equally likely that Feltman was
referring to Mendivil’s refusal to answer, not Mendivil’s status as a witness in federal court.
Nevertheless, the Respondents promptly, and apparently without question, charged Feltman
with threatening Mendivil because Mendivil had testified in federal court.

Finally, the reasonableness of the Respondents’ charge against Feltman suffers from
the presumptiveness and guesswork in labeling the epithet “f—ing ass” a threat. Calling
someone a f—ing ass is not a threat. It rather crudely expresses an opinion, but it is not a
threat. On the other hand, the Respondents have demonstrated that they recognize a threat
when it occurs, such as when Baeseman told a coworker, “This is bullshit and you better back
off.” Yet, for this threat, the Respondents did not discharge Baeseman.

E. The Union’s requests for information

On April 28, 2004, the Union sent a letter to the Respondents, through their attorney,
requesting information pertaining to condominiums that Turtle Bay was constructing at the
resort. This information was requested “[p]ursuant to our ongoing negotiations and in order to
understand the potential impact of the [condominiums] on our bargaining unit members.” (GC
Exh. 42.) On August 30, 2004, the Union sent another letter to the Respondents requesting
additional information on the condominiums. The condominiums were completed between April
and June 2005. Occupancy of the condominiums began during the second quarter of 2005. The
Respondents did not provide any information in response to the Union’s requests for information
until September 14 and 15, 2005.

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On September 13, 2004, the Union sent a letter to the Respondents requesting monthly
gross earnings paid to bargaining unit members. Ramos testified that she directed the “pay
master” to send the gross wages for union employees to the union. Ramos’s testimony was
vague, she did not identify when she gave this directive or the name of the person to whom it
was given, she did not state whether she ever followed up with the “pay master” or whether the
“pay master” ever acknowledged to her that he sent the wage information, and the Respondents
provided no documentation that the wage information was sent to the Union or corroboration of
Ramos’s testimony. In short, Ramos’s testimony is not credible, and, in any event, it does not
establish that the requested information was sent to the Union. Accordingly, the Respondents
have not provided the wage information requested by the Union on September 13.

IV. Analysis

A. Requests for information – Complaint, paragraphs 7, 8, and 9

“There can be no question of the general obligation of an employer to provide
information that is needed by the bargaining representative for the proper performance of its
duties.” NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967). These duties encompass
the union’s responsibilities as bargaining representative for employees under the Act. The
employer’s obligation extends to information involving labor-management relations during the
term of an existing collective-bargaining agreement and in preparation for negotiations involving
a future contract. The employer’s obligation also extends to information in furtherance of, or
which would allow the union to decide whether to process, a grievance. Id. at 436; Bickerstaff
Clay Products, 266 NLRB 983 (1983).

The standard for relevancy is a liberal, “discovery-type standard.” NLRB v. Acme
Industrial Co, 385 U.S. at 437. Accordingly, information that is “potentially relevant and will be of
use to the union in fulfilling its responsibilities as the employees’ exclusive bargaining
representative” must be produced. Pennsylvania Power and Light Co., 301 NLRB 1104, 1104–
1105 (1991). The requested information need not be dispositive of the issue for which it is
sought, but need only have some bearing on it. Id. at 1105. “An employer must furnish
information that is even probably or potentially relevant to the union’s duties.” Conrock Co., 263
NLRB 1293, 1294 (1982).

Information pertaining to employees within the bargaining unit is presumptively relevant.
Postal Service, 332 NLRB 635 (2000). On the other hand, the union must show the relevance of
information that does not concern employees in the bargaining unit. In keeping with the liberal
standard of relevance, this burden is not a heavy one and only requires the union to
demonstrate more than a mere suspicion of the matter for which the information is sought.
Sheraton Hartford Hotel, 289 NLRB 463 (1988); United Graphics, 281 NLRB 463, 465 (1986)
(“Although the union has the burden of proving the relevance of information concerning
employees outside the bargaining unit, the standard for relevancy is the same ‘liberal discovery-
type standard’ in all cases.”) Moreover, “information concerning subcontracting of unit work is
relevant to a union’s performance of its representational functions.” Island Creek Coal Co., 292
NLRB 480, 492 fn. 18 (1989).

With respect to the Union’s April 28 and September 30 requests for information, the
Respondents do not claim that the requested information is not relevant. Rather, the
Respondents claim that the requested information did not become available until the
construction of the condominiums was completed. However, the condominiums were completed
between April and June 2005. In addition, the Respondents could have immediately provided
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some of the information that the Union requested in its April 28 letter, but they did not. This
information includes whether Turtle Bay had any current plans to convert hotel rooms to other
uses, including condos or timeshares.

An employer has a duty to timely furnish information requested by the union. Woodland
Clinic, 331 NLRB 735 (2000). This duty requires the employer to furnish the information “as
promptly as possible.” Pennco, Inc., 212 NLRB 677, 678 (1974). An unreasonable delay in
responding to an information request can be just as violative of the Act as an outright refusal to
produce. Control Services, 315 NLRB 431 (1994). Also, the Respondents and the Union were
involved in contract negotiations during the entire period that the Union’s information requests
remained unanswered. This circumstance makes the Respondents’ duty to timely reply even
more compelling.

The Respondents’ defense that it did not have the requested information is incomplete
because the Respondents’ failed to provide the information that was immediately available,
such as whether Turtle Bay had any current plans to convert hotel rooms to other uses,
including condos or timeshares. The Respondents’ defense also fails to explain or account for
its delay in providing the information from approximately May 2004 to September 2004. An
unreasonable delay in providing information is as much of a violation of Section 8(a)(5) of the
Act as a refusal to furnish the information at all. Amersig Graphics, Inc., 334 NLRB 880, 885
(2001); Valley Inventory Service, 295 NLRB 1163 (1989); 345 NLRB No. 104. Under the
circumstances, the Respondents’ September 14 and 15, 2005 answers to the Union’s April 28
and September 30, 2004 requests for information were untimely and a violation of the Act.
Accordingly, the Respondents unreasonably delayed producing the Union’s requested
information, and such action violated Section 8(a)(5) and (1) of the Act.

The wage information requested by the Union on September 13, 2004 is presumptively
relevant. Postal Service, 332 NLRB 635 (2000). The Respondents have not provided this
information to the Union. Accordingly, the Respondents have violated Section 8(a)(5) and (1) of
the Act.

B. Rules and regulations governing Turtle Bay’s employees –
Complaint, paragraph 24

1. Handbook, pp. 32; Rules and Regulations, p. 2. In determining whether the
maintenance of certain work rules violates Section 8(a)(1) of the Act, “the appropriate inquiry is
whether the rules would reasonably tend to chill employees in the exercise of their Section 7
rights.” Lafayette Park, 326 NLRB 824, 825 (1998). Employees’ rights under Section 7 extend to
communications about working conditions with other employees, the employer’s customers and
advertisers, and the public in general. Kinder-Care, 299 NLRB 1171 (1990). Thus, all
communications concerning working conditions are protected so long as they are not so
disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Endicott Interconnect
Technologies, 345 NLRB No. 28 (2005). “In determining whether a challenged rule is lawful, we
will give the rule a reasonable reading. That is, we will refrain from reading particular phrases in
isolation or presuming improper interference with employee rights.” Guardsmark, LLC, 344
NLRB No. 97, slip opinion 1 (2005).

The General Counsel maintains that the following Handbook rule is overly broad and
vague, and encroaches in employees’ Section 7 rights to communicate with the public and with
guests concerning working conditions: “Under no circumstances should staffmembers solicit
guests, including requests for autographs, soliciting employment and other non-resort matters.”
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In advancing its contention, the General Counsel omits the concluding phrase of the prohibition.
However, by parsing the prohibition’s wording and omitting the concluding phrase, the General
Counsel contravenes the Board’s instruction to refrain from reading phrases in isolation.

The initial part of the prohibition, “under no circumstances should staffmembers solicit
guests,” is problematic, and, in isolation, would appear to encroach on employees’ Section 7
rights. However, the prohibition must be read with its modifying phrase, which identifies the
particular solicitations that are being prohibited. Thus, the types of solicitations being proscribed
are autographs, requests for employment, and other nonresort matters. Employees would not
reasonably conclude that the prohibition includes protected, Section 7 matters.

Accordingly, the rule on page 32 of the Handbook does not unlawfully tend to chill
employees in the exercise of their Section 7 rights.

The Respondents also maintain a rule that provides:

Being present at guest functions or in guest rooms, including sleeping
rooms, restaurant, lounges, meeting rooms, or recreation facilities without
authorization. No unauthorized social contact will be permitted at any time
with guests.

Again, the General Counsel challenges the validity of the rule by citing a portion of the
rule. Nevertheless, the question is close because the unabridged sentence prohibits social
contact without qualification. See Cintas Corp., 344 NLRB No. 118 (2005) (“We agree with the
judge that the rule’s unqualified prohibition of the release of ‘any information’ regarding ‘its
partners’ could be reasonably construed by employees to restrict discussion of wages and other
terms and conditions of employment.”) However, the charged sentence is preceded by
examples that would reasonably be read to explain what is meant by “social contact.” The
examples include being present at guest functions or in guest rooms, including sleeping rooms,
restaurant, and lounges. In light of these examples, “employees would reasonably understand
the rule to prohibit only personal entanglements, rather than activity protected by the Act.”
Guardsmark, LLC, slip opinion 3. Although the question is not free from doubt, I conclude that
the General Counsel has not satisfied his burden of proving that the cited rule would reasonably
be read to include and infringe on employees’ Section 7 rights.

2. Handbook, pages 37–38. “The governing principle is that a rule is presumptively
invalid if it prohibits solicitation on the employees’ own time.” Our Way, Inc., 268 NLRB 394
(1983). Moreover, rules banning solicitation during working time must “state with sufficient clarity
that employees may solicit on their own time.” Id. at 395.

The Respondents’ Handbook provides that “solicitation of any kind of one staffmember
by another is prohibited while either person is on working time or in a public or work area.”
Therefore, employees are prohibited, among other things, from seeking mutual aid from one
another concerning their working conditions. The prohibition makes no distinction between
public or work areas in the resort. The Respondents have offered no business justification for
their maintenance of this rule. (Indeed, the Respondents have offered no business
justification(s) for any of their employee rules. See R Br., pp. 218–219.) The rule infringes on
employees’ Section 7 rights and is unlawful under Section 8(a)(1) of the Act.

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3. Handbook, page 38. Although an employer may lawfully prohibit employee distribution
of literature in work areas at all times, it may not prohibit distribution during nonworking time and
in nonworking areas. Hale Nani Rehabilitation, 326 NLRB 335 (1998); Stoddard-Quirk Mfg. Co.,
138 NLRB 615, 621 (1962).

The Respondents’ Handbook provides that “[d]istribution by staffmembers of advertising
materials, handbills, printed or written literature of any kind in working or public areas of our
Resort is prohibited at all times.” Therefore, employees are prohibited from distributing union
literature during nonworking time and in nonworking areas. Accordingly, the prohibition violates
Section 8(a)(1) of the Act.

4. Handbook, p. 33. Any ambiguity in the Respondents’ rules must be construed against
them as the promulgators of the rules. Lafayette Park Hotel, 326 NLRB at 828. Also, an overly
broad or vague rule that encroaches in employees’ Section 7 rights is unlawful. Id. Employer
rules that require employees to obtain approval before engaging in protected activity are
unlawful.

The Respondents maintain the following rule: “Should a staffmember wish to visit the
Resort with family or friends, they may do so with the prior approval of their manager and
Planning Committee Member. You will be required to have a ‘Return to Property’ pass.” The
General Counsel contends that this rule violates Section 8(a)(1) of the Act. I agree.

In Lafayette Park Hotel, 326 NLRB at 827, the Board held that the following rule did not
implicate Section 7 activity: “Employees are not permitted to use the restaurant or cocktail
lounge for entertaining friends or guests without the approval of the department manager.” The
lawful rule in Lafayette Park Hotel limited the area of the hotel to which it applied (the restaurant
and cocktail lounge) and limited the employee activities to which it applied (entertaining friends
or guests). The present rule contains neither of these limitations. It applies indiscriminately to
the “Resort,” and it is not limited to any particular purpose, such as entertainment. Thus, under
the present rule, employees are not permitted to visit any part of the resort with family or friends
without prior approval and without securing a “Return to Property” pass.

The Lafayette Park Hotel rule limited its reach to the entertainment of friends or guests,
and it corroborated that intent by limiting its application to the hotel restaurant and cocktail
lounge. Accordingly, the Board found that “a reasonable employee would not interpret this rule
as requiring prior approval for Section 7 activity.” Id. However, the present rule is not limited in
its application or intent. Moreover, the Respondents have offered no business justification or
explanation for the rule. The present rule prohibits any visit to Turtle Bay by an employee with
family or friends, not just visits for entertainment, and it prohibits visits by such employees to the
entire resort, not just particular parts of the resort. A reasonable employee could interpret this
rule as requiring prior approval for Section 7 activity.

A rule that “requires employees to secure permission from their employer prior to
engaging in protected concerted activities on an employee’s free time and in nonwork areas is
unlawful. Teletech Holdings, Inc., 333 NLRB 402, 403 (2001). Accordingly, the Respondents’
access rule is unlawful.

“Finally, except where justified by business reasons, a rule which denies off-duty
employees entry to parking lots, gates, and other outside nonworking areas will be found
invalid.” Tri-County Medical Center, 222 NLRB 1089 (1976). The present rule denies off-duty
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employees entry to the resorts’ parking lots and other outside nonworking areas, and the
Respondents have offered no business reasons that would justify the rule. Accordingly, this rule
violates Section 8(a)(1) of the Act.

5. Handbook, pp. 40–41; Rules and Regulations, p. 2. (a) An employer’s rule denying
off-duty employees access to the employer’s premises is presumptively valid only if, among
other things, it limits access solely with respect to the interior of the plant or facility. Tri-County
Medical Center, 222 NLRB 1089 (1976). A rule that prohibits an employee from reporting to or
staying on the employer’s property 30 minutes before or after the employee’s shift is unlawful.
Ark Las Vegas Restaurant, 335 NLRB 1284 (2001), remanded 334 F.3d 99 (DC Cir. 2003), after
remand 343 NLRB No. 126 (2004). Similarly, an employer’s rule that prohibits employees from
patronizing the employer’s property is unlawful. Flamingo Hilton, 330 NLRB 287 (1999). The
Respondents’ Handbook rule prohibits employees’ “[p]resence in the Resort more than 30
minutes before or after your shift.” Accordingly, this rule unlawfully restricts employees’ Section
7 rights, and violates Section 8(a)(1) of the Act.

(b) The Respondents’ also maintain a rule in their Rules and Regulations, which
provides that “[b]eing present on company premises at any time other than the employee’s
assigned work shift, unless specifically authorized by his/her supervisor or picking up paycheck”
is misconduct, which could result in disciplinary action, including termination. Although this rule
uses the term “premises,” the previous rule used the term “property,” and other rules use the
term “Resort,” there does not appear to be any distinction in the terms, either as used by the
Respondents or in general. See Teletech Holdings, Inc., 333 NLRB at 404 (a rule prohibiting
presence on the employer’s “premises” while off duty was found to include parking lots, gates,
and other outside nonworking areas); Ark Las Vegas Restaurant, 343 NLRB at slip opinion 3–4
(where the employer interchanged the terms premises and property, and the Board relied on the
judge’s finding that the word “property” in the hotel industry generally refers to the entire hotel,
outside grounds, and parking lot complex).

This no-access rule infringes on employees’ Section 7 rights to a greater extent than the
previously considered 30-minute rule. This rule in the Respondents’ Rules and Regulations
unlawfully restricts employees’ Section 7 rights, and violates Section 8(a)(1) of the Act.

(c) An employer’s rule that prohibits employees from walking off the job is overbroad and
in violation of the Act. Labor Ready, Inc., 331 NLRB 1656 (2000). The Respondents’ rule
provides that “[w]alking off the job will be considered voluntary termination.” Accordingly, the
Respondents’ rule is overbroad and in violation of the Act.

(d) In Grandview Health Care Center, 332 NLRB 347, 349 (2000), the Board stated

By compelling employees to cooperate in unfair labor practice
investigations, or risk discipline, the Respondent’s rule violates the
longstanding principle, established in Johnnie’s Poultry, that employees
may not be subjected to employer interrogations, relating to Section 7
activity, that reasonably tend to coerce them to make statements adverse
to their Section 7 interests, those of a fellow employee, or those of their
union. If the employees’ Section 7 right of mutual protection is to be
safeguarded, cooperation must be voluntary. Failure to inform employees
of the voluntary nature of the employer’s investigation is ‘a clear violation of
Section 8(a)(1) of the Act.

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The Respondents’ rule provides that a violation of Turtle Bay policies includes “[r]efusing
to cooperate during a company investigation.” There is no evidence in the present record that
the Respondents informed Turtle Bay’s employees that their cooperation in such investigations
was voluntary. The Respondents’ rule violates Section 8(a)(1) of the Act.

The Respondents have not addressed the substance or the merits of their foregoing
rules. However, the Respondents make two contentions. First, the rules were promulgated more
than 6 months prior to the filing of the charges in the present case. Accordingly, the
Respondents contend that the present charges are time-barred under Section 10(b) of the Act.
Second, the Respondents contend that the charges should be dismissed because the
violations, if any, are de minimus.

The Respondents’ timeliness argument confuses promulgating an unlawful rule with
maintaining an unlawful rule. Both of these actions are distinct, both may be unlawful, and, if so,
both would involve illegal actions that occur at different times. An employer may violate the Act
by promulgating an unlawful rule, for which the violation would generally occur on the date the
rule is promulgated. On the other hand, an employer may also violate the Act by maintaining an
unlawful rule, and that violation continues throughout the period the unlawful rule is maintained.
See, e.g., Lafayette Park Hotel, 326 NLRB at 825. To accept the Respondents’ argument would
render the Board powerless to remedy the Respondents’ unlawful work rules that continue to
coerce employees in the exercise of their protected rights, effectively granting the Respondents
a license to violate the Act. See Alamo Cement Co., 277 NLRB 1031, 1037 (1985).

The complaint charges that the Respondents promulgated and maintained unlawful
rules. The Respondents’ have been found to have unlawfully maintained those rules, not to
have unlawfully promulgated those rules. Section 10(b) may insulate the Respondents’
promulgation of their unlawful rules, but the maintenance of those rules within 6 months of the
filing of the charges in this case renders the present action timely.

The Respondents also contend that there is no evidence they have imposed discipline
under the rules at issue, and accordingly, any violation of the Act from the maintenance of those
rules is de minimus. However, “[i]t is axiomatic that merely maintaining an overly broad rule
violates the Act.” Grandview Health Care Center, 332 NLRB at 349. “Evidence of enforcement
of the rule is not required to find a violation of the Act. Indeed, the mere maintenance of an
ambiguous or overly broad rule tends to inhibit or threaten employees who desire to engage in
legally protected activity but refrain from doing so rather than risk discipline.” Id. (citations
omitted). Accordingly, the Respondents’ de minimus argument is rejected.

C. Restricting the Union’s access to Turtle Bay and prohibiting the collection of dues –
Complaint, paragraphs 11, 12, 16, 17, 18, 21, 22

In Frontier Hotel & Casino, 309 NLRB 761 (1992), enfd. sub nom. Unbelievable, Inc. v.
NLRB, 71 F.3d 1434 (9th Cir. 1995), Frontier and the union had negotiated a union access
provision similar to the access provision in the present case. Notwithstanding, Frontier asserted
the right to permanently expel any union representative who exceeded what Frontier believed
were the bounds of the access provision. The contract agreement in Frontier Hotel & Casino
permitted union representatives to visit Frontier’s property “to see that this Agreement is being
enforced and to collect union dues, assessments and initiation fees, provided that such visits by
Union representatives shall not interfere with the conduct of the Employer’s business or with the
performance of work by employees during their working hours.” Id. at 768. By specifically listing
the allowed purposes for the Union’s visits to the hotel, the access provision in Frontier Hotel &
Casino is, if anything, more restrictive than the access provision in the present case.
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Frontier expelled three union representatives who, Frontier claimed, had engaged in
improper conduct exceeding the bounds of the negotiated access provision. The Board affirmed
the judge’s finding and ruling that Frontier had no or flimsy grounds on which to expel the union
representatives, leading to the inference that they were expelled to inhibit the union from
communicating with its membership, in violation of Section 8(a)(1). The Board also affirmed the
judge’s finding and ruling that one or more of the expulsions were done in the presence of
employees, warranting the conclusion that such expulsions had interfered with union-related
communications or coerced and restrained employees who were engaging in union activity, in
violation of Section 8(a)(1). The Board also affirmed the judge’s conclusion and ruling that the
expulsions deprived employees of their contractually granted access to their bargaining
representative, the expulsions constituted a unilateral change of a material term or condition of
employment, and the expulsions tended to interfere with the representational process, in
violation of Section 8(a)(5). Id. at 766; see also ATC/Vancom of California, L.P., 338 NLRB
1166, 1169 (2003); West Lawrence Care Center, 308 NLRB 1011 (1992).

On February 14 and 18, May 4 and 24, June 2, 7, 11, 12, 15, 17, and 22, 2004,
January 27, and March 5, 2005, the Respondents told union representatives, who were
performing their duties at Turtle Bay, that the union representatives were trespassing and/or that
the union representatives had no right to be at Turtle Bay. On each of these occasions, the
Respondents sought the assistance of Honolulu police officers to evict union representatives
from the resort’s grounds. On May 24, the union representatives’ duties included the collection
of dues. On May 6, Ramos told the Union that the Union could not collect dues on the resort’s
grounds.

The union access provision of the collective-bargaining agreement does not restrict
where union representatives may go in the resort. It sets forth the reason union representatives
are granted access, which is “to carry on their duties,” but the term “duties” is not defined or
otherwise limited. See Gilliam Candy Co., 282 NLRB 624 (1987) (an access provision that
permitted the union representative to enter the plant “on business,” but did not otherwise define
or qualify the term, was interpreted broadly, or, at least, at face value, to include a visit to
investigate the circulation of a decertification petition, a visit to talk to employees, and a visit to
serve internal union charges on an employee.) There are two qualifications in the access
provision: (1) the union representatives must first notify the resort when they arrive,7 and
(2) “there shall be no interference with the normal conduct of business.” To clarify, the access
provision does not proscribe any and every interference with business, only interference with
the “normal conduct of business.”

There is no credible evidence that Marsh or other union representatives caused any
interference with the Respondents’ normal conduct of business on February 14 and 18, May 24,
June 2, 7, 12, 15, 17, and 22, 2004. On each occasion, by telling the union representatives that
they were trespassing, by issuing and handing trespass notices to the union representatives,
and/or by evicting the union representatives from Turtle Bay, the Respondents interfered with
and restrained the Union in communicating with its membership. Like the Respondents’
summoning the police, their issuance of trespass warnings and notices sought to criminalize the
actions of the union representatives in coming to Turtle Bay, despite the fact that the union
7 The phrase “when they arrive” is not spelled out in the provision. However, the parties
have not disputed, and have operated with the understanding, that it means the union
representatives must sign the register at the security dispatch office when they come into the
hotel.
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representatives came to Turtle Bay pursuant to the access provision in the contract and in order
to perform their duties. The union representatives did not violate the access provision in the
contract. The Respondents had no or flimsy grounds on which to issue such warnings and
notices. Likewise, the Respondents’ actions reasonably tended to interfere with, restrain, and
coerce Turtle Bay’s employees in the exercise of their rights under Section 7 of the Act. Thus,
as in Frontier Hotel & Casino, the Respondents’ conduct either had the indirect impact on
employees of interfering with union-related communications or directly coerced and restrained
employees who were engaging in the union activity of conversing with their bargaining
representative. Accordingly, on each occasion, the Respondents violated Section 8(a)(1) of the
Act.

On February 14 and 18, May 4 and 24, June 2, 7, 11, 12, 15, 17 and 22, 2004 and
January 27, 2005, the Respondents called the Honolulu Police Department to assist in evicting
the union representatives from the resort property. After the police arrived at the resort, they
assisted in evicting the union representatives and served as witnesses to the Respondents’
issuance of trespass notices to the union representatives. All of these police confrontations
were done in the presence of employees. The Respondents failed to provide a credible
explanation why it was necessary to call the police. Accordingly, like Frontier Hotel & Casino,
Turtle Bay had no or, at best flimsy, grounds on which to solicit the police to aid the
Respondents in evicting the union representatives.

Moreover, in spite of the police being called on many occasions, and in spite of the
Respondents’ issuance of numerous trespass notices to Marsh and Shimabukuro, there is no
evidence that the Respondents ever pursued the “trespasses” any further in the criminal
process, such as asking the district attorney to issue arrest warrants or to prosecute the cases.
This failure by the Respondents shows that, in soliciting the police, they were not motivated to
assert their private property rights under Hawaii’s criminal trespass statute. Rather, the
Respondents’ motivation in bringing the police onto their grounds was to use the police to
intimidate the union and its membership, and to imply, if not assert, that a union representative
performing his or her duties at the resort was committing a criminal act. Summoning the police
on these occasions reasonably tended to interfere with, restrain, and coerce Turtle Bay’s
employees in the exercise of their rights under Section 7 of the Act. Fabric Warehouse, 294
NLRB 189 (1989), enfd. sub nom. Hancock Fabrics v. NLRB, 902 F.2d 28 (4th Cir. 1990); Jerry
Cardullo Ironworks, Inc., 340 NLRB 515 (2003). Accordingly, on each occasion the
Respondents summoned the police to assist the Respondents in intimidating, evicting,
interfering with, and restraining a union representative, they violated Section 8(a)(1) of the Act.

The foregoing violations occurred without regard to whether the union representatives
had caused disturbances or disruptions in the workplace. The remaining question is whether
such actions by the Respondents are permitted when the union representative does disturb
workers in the workplace. On August 6, Santa Maria disturbed the kitchen workers by talking to
them for about 15–20 seconds on union-related matters as he was going through the kitchens.
The Respondents reacted by calling the police and evicting Santa Maria from Turtle Bay.

Because Santa Maria was disturbing the workers as he walked through the work areas
of the hotel, the Respondents had a reasonable basis to stop him. However, the Respondents
summoned the police before the standoff with Santa Maria in the kitchen, which tends to show
their reflexive predisposition to solicit the police whether or not the police were needed.
Nevertheless, the evidence fails to demonstrate whether the Respondents violated Section
8(a)(1) in using the police to evict Santa Maria from the resort. There is no evidence that
Dougher and Santa Maria seriously discussed the possibility of Santa Maria continuing his walk
through the work areas of the hotel without disturbing the workers. Santa Maria and Dougher
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stubbornly adhered to their respective positions. Dougher could have offered Santa Maria the
opportunity to walk through the remaining work areas of the hotel without disturbing the workers.
Alternatively, Santa Maria could have acceded to Dougher’s prohibition of entering the lobby
area without the necessity of waiting for the police. Whether stopping Santa Maria from
proceeding through the work areas of the hotel and summoning the police unlawfully interfered
with employees’ rights on this occasion was not fully developed, likely because the General
Counsel maintains that Santa Maria was not disturbing the workers. Accordingly, I will
recommend that this charge (Complaint, paragraph 18) be dismissed.

An employer violates Section 8(a)(1) and (5) of the Act when, during the course of a
collective-bargaining relationship, it alters established matters that are mandatory subjects of
bargaining without giving the union prior notice and an opportunity to bargain regarding the
change. NLRB v. Katz, 369 U.S. 736 (1962). A union access provision in a collective-bargaining
agreement is a term and condition of employment that survives the agreement’s expiration. TLC
St. Petersburg, 307 NLRB 605 (1992), enfd. 985 F.2d 579 (11th Cir. 1993); Unbelievable, Inc. v.
NLRB, 71 F.3d at 1438. Union access to the employer’s premises is a mandatory subject of
bargaining, which requires notice to the union and an opportunity to bargain prior to any change.
Id.; American Commercial Lines, 291 NLRB 1066, 1072 (1988). An employer violates Section
8(a)(5) and (1) of the Act by unilaterally and without notice making a material, substantial, and
significant change in a contractual access provision. Fabric Warehouse, 294 NLRB at 192;
Peerless Food Products, 236 NLRB 161 (1978). “A change is measured by the extent to which it
departs from the existing terms and conditions affecting employees.” Southern California Edison
Co., 284 NLRB 1205 fn. 1 (1987), enfd. mem. 852 F.2d 572 (9th Cir. 1988).

On February 12, 2004, the Respondents began to interfere with the Union’s access to
the resort and to the employees. This change represented a significant change from the
Respondents’ previous practice and from the access provisions of the collective-bargaining
agreement. Beginning in February 2004, the Respondents interfered with the Union’s access to
the resort and to the employees by issuing warnings and notices of trespass, bringing the police
onto the property to help the Respondents intimidate and evict the Union, and evicting the union
representatives. These actions were done on February 14 and 18, May 4 and 24, June 2, 7, 11,
12, 15, 17 and 22, 2004 and January 27, 2005. These unilateral actions were a material,
substantial, and significant change in the contractual access provision, and the changes were
made without notifying or bargaining with the Union.

In evicting the union representatives, and interfering with the Union’s access to the
resort property and its members, the Respondents deprived employees of their contractually
granted access to their bargaining representative. In addition, the evictions and interference
constituted a unilateral change of a material term or condition of employment, and the actions
tended to interfere with the representational process. Frontier Hotel & Casino, 309 NLRB at 766.
Accordingly, on February 14 and 18, May 4 and 24, June 2, 7, 11, 12, 15, 17 and 22, 2004, and
January 27, 2005, by materially, substantially, and significantly changing and interfering with the
Union’s access to Turtle Bay, the Respondents violated Section 8(a)(5) and (1) of the Act.

The Respondents argue that “the overriding issue in the matter at hand [is]: TBR has the
right to refuse to allow non-employee Union agents access to its private property, and to not
allow non-employees to roam at will all over its private property because the Union agents are
allowed reasonable ‘non-trespassory means to communicate their message.’” (R Br. pp. 206–
207. (emphasis in original)) Without regard to the hyperbole, this statement does not identify the
issue in the present matter, overriding or not. The issue is whether the Respondents unilaterally
changed the contractual access provision that governs its relations with the Union, and if so,
whether the Respondents’ actions are lawful.
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The Respondents cite Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) and NLRB v.
Babcock & Wilcox, 351 U.S. 105 (1956) for the proposition that an employer may lawfully
restrict nonemployees, such as union representatives, from accessing the employer’s property.
However, the present issue is not whether, in a vacuum, the Respondents could lawfully deny
access to a union representative. In the present case, there is a preexisting agreement that
authorizes union access to the Turtle Bay resort. Accordingly, the question is whether the
Respondents may lawfully and unilaterally restrict union access to Turtle Bay in derogation of
the agreement.

The Respondents also argue that the Union violated the agreement by causing
disruptions at Turtle Bay. For example, the Respondents cite the Union’s rally on March 25,
2004 as an important, precipitating event that caused Turtle Bay to restrict the Union’s
subsequent access to the resort. But, even if the rally members unlawfully trespassed on the
Respondents’ property on March 25—although it should be noted that a police officer was
present in the hotel’s lobby and witnessed the rally, yet made no arrests and did nothing to stop
the rally as it went through the lobby—the rally was not related to the contractual access
provision. Indeed, Marsh was present in the employee cafeteria on the day of the rally, but she
did not participate in the rally, and there is no evidence that she had any involvement with the
rally.

In determining whether the Respondents have a proper claim that the Union interfered
with Turtle Bay’s normal conduct of business, the initial factual inquiry is, what were the union
representatives doing at the time and on the day they were issued trespass notices and the
police were summoned to evict them from the property. On the days the police were summoned
to Turtle Bay, and on the days that Marsh or Shimabukuro were issued trespass notices, the
union representatives had not interfered with Turtle Bay’s business, let alone its normal conduct
of business. There is no credible evidence that the union representatives caused disruptions or
interfered with business on these days. Going further, there is no credible evidence that Marsh
ever engaged in conduct that caused disruptions or interfered with the normal conduct of
business of Turtle Bay. And, the only evidence of Shimabukuro engaging in such conduct is her
participation in the demonstration on March 25, a demonstration that had no connection with the
contractual access provision.

Rowena Afoa, Roger Corpuz, Tiffany Martines, and Kaleo Delosantos testified to
occurrences that the Respondents claim showed disruptions caused by the union
representatives. Each of these witnesses displayed such a bias and animosity toward the Union
that their testimonies are not credible. Moreover, even if credible, the events described by these
biased witnesses does not arise to disruptions or interference with the normal conduct of
business. For example, Afoa described an event on July 1, 2004 in which an employee reported
a confrontation with Marsh. Afoa is a reservations supervisor. (Afoa has resigned from the
Union, she has composed or distributed antiunion flyers at Turtle Bay more than ten times, and
she has even sought in state court a TRO against Marsh.) Afoa went to the cafeteria and
confronted Marsh, who denied that anything had occurred. At one point, Marsh said that Afoa
was crazy for making such an accusation. Afoa then went to human resources to fill out a report
while the security department summoned the police. The enormity of this reaction says more
about Afoa’s antiunion animus than it does about any supposed disruption caused by Marsh.

In November 2004, Delosantos was sitting in the cafeteria with Tiffany Martines and
another friend. Marsh came to their table and sat down, but Delosantos and Martines did not
want Marsh to be there. An argument ensued, although it is not clear who started the argument
or who was the aggressor. Delosantos was quite emotional when she testified, and her bias
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against the union was transparent. Moreover, an argument in the employee cafeteria, which is
where employees go on their breaks, does not constitute a disruption in the workplace because
Martines and her friend were on their break.

Roger Corpuz is the bell captain. Corpuz resigned from the union, he helped to start the
petition at Turtle Bay in opposition to the boycott, and he has been allowed by the Respondents
to speak at new employee orientations. Corpuz described an encounter with Kerwin in the
cafeteria, an event, even if Corpuz is believed, that did not involve disruptions in the workplace.
On balance, Afoa, Martines, Delosantos, and Corpuz show that there were at least some
employees who did not support the Union and who did not want to be “bothered” by Marsh in
the employee cafeteria.

The Respondents contend that Marsh violated the agreement by walking through the
hotel, as she did, to advise the employees she was there. However, the contractual access
provision does not support this contention nor is there any evidence that Marsh’s practice was
contrary to the Union’s historical practice under the contractual access provision. Moreover,
going through the hotel when she first arrived in order to greet the employees had long been
Marsh’s practice, and the Respondents had never prevented her from doing this or voiced an
objection. In addition, when Marsh was given trespass notices, and when the police confronted
her and told her to leave, neither the police nor the Respondents said to Marsh that she had
violated the agreement by walking through the working areas and greeting employees.

The Respondents also contend that the trespass notices issued to Marsh and
Shimabukuro on May 4 were based on their actions in the March 25 rally. However, Marsh did
not participate in that rally, so this contention is rejected. Also, on May 4, the retirees chanted as
they walked through the lobby and back to their bus. But, Marsh was not part of the group that
chanted, nor was she a part of the outing. Marsh was at Turtle Bay on May 4 as part of her
regular duties at the resort. The retiree group outing had nothing to do with the contractual
access provision. On balance, and except for minor, insignificant instances,8 the Union did not
breach the access provision of the agreement.

Collecting dues from members is one of the duties of the Union, and the Respondents
do not contend otherwise. Accordingly, collecting dues by the Union is within the union access
provision that contractually bound the Respondents. On May 6, 2004, Ramos notified the Union
that the Union was no longer allowed to collect dues at Turtle Bay. On May 24, the
Respondents prevented the Union from collecting dues at Turtle Bay, and summoned the police
to evict the union representatives. Preventing the Union from collecting dues at Turtle Bay was
a material, substantial, and significant change and interference with the Union’s access to Turtle
Bay. The Respondents unilaterally imposed this change and this restriction on the Union. By
doing so, the Respondents violated Section 8(a)(5) and (1) of the Act.

8 For example, on January 27, 2005, Marsh first went to the lobby of the hotel rather than
the security dispatch office. However, the reason Marsh intended to go to the cafeteria via the
lobby was because of debilitating back pain, which prevented her from being able to climb the
outside steps leading to the security dispatch office. Her intent had been to use the elevator in
the lobby to go to the cafeteria. The Respondents’ treatment of Marsh on January 27 displayed
more than their antiunion animus, although it is unnecessary to characterize additional aspects
of that treatment.
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In Venetian Casino Resort, 345 NLRB No. 82 (2005), the union demonstrated on the
sidewalk in front of the hotel and casino. The employer summoned the police and took other
actions to interfere with the demonstration. The courts later determined that the sidewalk was a
public forum. The Board affirmed the administrative law judge’s determination that because the
sidewalk was a public forum, and because the union demonstrators were engaged in protected
activity, the employer violated Section 8(a)(1) by summoning the police and interfering with the
demonstration.

On February 12, 2004, the Respondents blocked a rally, consisting of outside union
supporters and employees of the resort, from going onto the Bay View beach. The supporters
and employees had attempted to conduct a rally on the Kawela beach, but after a confrontation
with members of a wedding party, and after Dougher had talked to Marsh about the rally, the
group left that beach and started walking toward the Bay View beach. Both beaches are public
beaches. Once the group was in the parking lot and walking toward the Bay View beach, the
Respondents stopped them from going onto the beach. The Respondents also called the police,
who arrived and threatened the rally members with arrest if they did not disburse.

The rally on the beach at Turtle Bay consisted of demonstrating support for the Union in
its ongoing contract negotiations with the Respondents. Accordingly, the demonstrators were
engaged in protected activity. They were conducting this protected activity on public grounds.
The Respondents summoned the police to evict the demonstrators, and the Respondents
otherwise interfered with the demonstrators. Accordingly, the Respondents violated Section
8(a)(1) of the Act.

The Respondents contend that the demonstrators engaged in boisterous conduct on the
Kawela beach, and it is likely that the chanting on the beach was heard in the hotel’s pool area
where a wedding ceremony was taking place. This likelihood is increased by the fact that two
demonstrators were using bullhorns at the demonstration. However, the demonstrators agreed
to move the rally from the Kawela beach and onto the Bay View beach, and they attempted to
do so. Moreover, the demonstrators were not threatened with arrest while they were on the
Kawela beach, and neither the police nor the Respondents told the demonstrators that they
were making excessive noise. The Respondents make no contention that a rally on the Bay
View beach would have disturbed anyone. The Respondents violated the demonstrators’
Section 7 rights by preventing them from going to the Bay View beach, and then removing them
from the resort grounds with the assistance of the police.

In their posthearing brief, the Respondents do not address the charges in the complaint
concerning the Respondents’ actions on February 12. Rather, the Respondents claim that they
did not engage in unlawful surveillance of the demonstrators on February 12. (R Br., p. 193.)
But, the complaint does not allege that unlawful surveillance occurred on February 12.
Accordingly, and considering all the circumstances, I conclude that the Respondents no longer
dispute that they unlawfully interfered with the demonstrators on February 12, other than by
surveillance. In any event, and without regard to a waiver or concession by the Respondents,
their actions on February 12 in summoning the police, preventing the demonstrators from going
onto a public beach, and evicting the demonstrators, as discussed and explained above, violate
Section 8(a)(1) of the Act.

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D. Surveillance – Complaint, paragraphs 13, 14, 15, 19, 20

In National Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (DC
Cir. 1998), the Board set forth the principles applicable to charges of surveillance:

[T]he fundamental principles governing employer surveillance of protected
employee activity are set forth in F. W. Woolworth Co., 310 NLRB 1197
(1993). The Board in Woolworth reaffirmed the principle that an employer’s
mere observation of open, public union activity on or near its property does
not constitute unlawful surveillance. Photographing and videotaping such
activity clearly constitute more than mere observation, however, because
such pictorial recordkeeping tends to create fear among employees of
future reprisals. The Board in Woolworth reaffirmed the principle that
photographing in the mere belief that something might happen does not
justify the employer’s conduct when balanced against the tendency of that
conduct to interfere with employees’ right to engage in concerted activity.
Rather, the Board requires an employer engaging in such photographing or
videotaping to demonstrate that it had a reasonable basis to have
anticipated misconduct by the employees. ‘[T]he Board may properly
require a company to provide a solid justification for its resort to
anticipatory photographing. [Citations omitted.]

On March 25, 2004, security guards were posted at the entrance to Turtle Bay, and they
held video cameras that they pointed toward the group of union supporters and employees as
the group met in front of the resort and as the group entered the resort grounds. There had
been no threats of violence or indications of violence from the group. Moreover, there was no
history or experience of violence with union rallies. The Respondents assert that the union rally
on February 12 had trespassed on the resort’s property, but this is not true. On February 12, the
demonstrators accessed the beach as all members of the public are permitted to do, and they
remained on the public beach throughout the rally. The Respondents have not demonstrated a
reasonable basis to anticipate misconduct from the rally participants nor have the Respondents
provided a solid justification for its videotaping of the demonstrators before and as they entered
the resort grounds. Accordingly, the Respondents violated Section 8(a)(1) of the Act when they
videotaped the rally participants on March 25 as the demonstrators gathered in front of Turtle
Bay and entered the resort grounds.

The General Counsel contends that Dougher unlawfully engaged in videotaping the
March 25 rally participants while they were demonstrating on the Kawela beach. (GC Br., pp.
91–92; GC Exh. 51.) However, the complaint does not allege this event. (See Complaint, para.
13.) Moreover, the nonemployee members of the rally had marched through the hotel’s lobby on
their way to the beach, and, after those demonstrators had gathered on the beach, the
Respondents arguably had some justification for videotaping. Because the complaint does not
charge the Respondents with unlawful surveillance by videotaping the demonstrators on the
Kawela beach, Dougher’s apparent videotaping of the group on the beach will not be
considered.

On April 2, Dougher appeared to videotape rally participants, most of whom were
employees, as they demonstrated across Kamehameha Highway in front of Turtle Bay. Other
security guards were observing the rally, and they were seated in golf carts at the entrance to
the resort. The rally was peaceful and the Respondents have not demonstrated a reasonable
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basis to anticipate misconduct from the rally participants nor have the Respondents provided a
solid justification for its videotaping of the demonstrators before and as they entered the resort
grounds.

On April 17, approximately 80 people, about half of whom were employees of the resort,
participated in a rally at the resort. A security guard, identified as Val, took pictures of the
license plates on the rally participants’ vehicles. While the rally was taking place on the beach, a
security guard, identified as Michael, was pointing a video camera at the group as if he were
videotaping the rally. In addition, Tom Parks, a sales manager for the resort, held a video
camera and pointed it at the group as if he were videotaping them. The rally was peaceful and
the Respondents have not demonstrated a reasonable basis to anticipate misconduct from the
rally participants nor have the Respondents provided a solid justification for its videotaping of
the demonstrators before and as they entered the resort grounds.

The Respondents have not demonstrated a reasonable basis to anticipate misconduct
from the rally participants on April 2 and 17, nor have the Respondents provided a solid
justification for its videotaping of the rally participants. Accordingly, the Respondents violated
Section 8(a)(1) of the Act when they videotaped the rally participants and took pictures of their
license plates on April 2 and 17.

The Respondents argue that the testimony offered by the General Counsel’s witnesses
on the April 2 and 17 rallies was “a jumble of testimony in which its witnesses failed to
distinguish its surveillance charges and failed to show that TBR engaged in any illegal
surveillance.” (R Br. p. 202.) This argument is rejected. The credible, virtually unimpeached,
evidence demonstrates that the Respondents videotaped, or appeared to videotape, the rallies.9
Under all of the circumstances, these actions constitute unlawful surveillance in violation of
Section 8(a)(1).

The Respondents contend that the five factors listed by Member Brame in his concurring
opinion in Randell Warehouse of Arizona, 328 NLRB 1034, 1047–1048 (1999) should be
considered in determining whether the circumstances surrounding the Respondents’ apparent
videotaping on April 2 and 17 are coercive. These factors are:

(1) Whether the photographing occurred in the context of serious independent unfair
labor practice conduct or unalleged threats of physical or economic reprisal, intimidation, or
actual violence.
(2) Whether the activity photographed was carried on in an open and public way,
including whether the activity involved trespass.
(3) Whether the photographing took place at the employer's premises, at the union hall
or a union-sponsored event, or at a location unconnected with either party.
(4) Whether the photographing was done in a "conspicuous" manner that would suggest
it was intended as a prelude to reprisal.
9 Despite the occasions noted herein that Dougher and other security guards and managers
held video cameras toward union members who were demonstrating and appeared to videotape
the demonstrations, the Respondents produced no videotapes in response to subpoenas from
the General Counsel. The only videotape that was offered and received in evidence in this
proceeding was a tape that the Union produced to the Respondents in response to a subpoena.
R Exh. 52. This is a tape that a union employee made of the rally as it proceeded through the
hotel’s lobby on March 25.
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(5) Whether the party photographing the activity had a "legitimate" or "proper"
justification as previously recognized by the Board.

The videotaping by the Respondents occurred in the context of serious independent
unfair labor practices. The activity videotaped was carried on in an open and public way. The
videotaping took place while the demonstrators were both on and off the employer’s premises.
The videotaping was done in a conspicuous manner. The Respondents did not have a
legitimate or proper justification for the videotaping or for appearing to videotape. Accordingly,
the five Randell factors demonstrate, or are at least consistent with, the coerciveness of the
Respondents’ apparent videotaping on April 2 and 17.

The Respondents were diligent at the hearing in objecting to and clarifying that the
General Counsel’s witnesses could not definitely say that they were being videotaped, only that
Dougher and the security guards and Parks were holding videotape cameras and pointing it at
the groups on the two dates, as if they were videotaping the demonstrators. The Respondents
have not admitted that they actually videotaped the demonstrators nor have their witnesses
admitted videotaping. This position, that the Respondents only appeared to videotape the
demonstrators, undercuts any claim the Respondents might have that they were justified in
videotaping the demonstrators. That is, a claim that one is justified in videotaping an event
might authorize the actual videotaping, but not simply the appearance of videotaping.

On June 11, security guard Hanohano followed Marsh wherever she went in the resort,
including the employee cafeteria. No reasonable basis was provided for this following of Marsh.
Accordingly, the Respondents violated Section 8(a)(1) of the Act when security guard Hanohano
followed Marsh and followed her into the employee cafeteria as she talked to employees.

The Respondents continued to follow Marsh whenever she came to Turtle Bay. The
Respondents contend that “[t]his ‘following’ is not based on the ‘mere suspicion’ that something
might occur, but is the logical expectation that is solely based on the Union agents’ recurring,
disruptive behavior. It is justified so that TBR employees will not be disrupted from their work;
justified so that guests will not be intimidated or interfered with; and justified so that the TBR can
maintain the safety and security of the premises.” (R Br. pp. 203–204.) This argument is
rejected, factually and legally, both for the Respondents’ following of Marsh on June 11 and for
the Respondents’ following of Marsh and other union representatives thereafter.

The test is whether employees would reasonably assume from the employer’s conduct
that their protected activities have been placed under surveillance. United Charter Service, 306
NLRB 150 (1992). The security guards’ following of Marsh is “activity [that] clearly constitute[s]
more than mere observation.” F. W. Woolworth Co., 310 NLRB at 1197. The security guards
closely followed Marsh, often within 2 to 3 feet, and sat at tables in the cafeteria close to Marsh
as she conversed with employees. Such activity would likely and reasonably inhibit employees
from talking to Marsh, and would instill fear in employees if they did talk to Marsh. Accordingly,
the Respondents violated Section 8(a)(1) of the Act.

The Respondents’ followed Harmon at the resort just as they had followed Marsh. On
February 10, 2005, security guards followed Harmon as she walked into the parking lot with
Trellis, an employee, and while Harmon and Trellis were discussing work issues. The guards’
surveillance caused Trellis to abruptly end their discussion. This was the first time that Trellis
had been followed by security guards during her 25 years of employment at Turtle Bay. On
March 3, a security supervisor followed Harmon and Trellis into the parking lot again. Harmon
and Trellis were again talking about work issues, but the security supervisor told them to end
their conversation. Also on March 3, Harmon and Webb were conferring on work issues in the
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cafeteria. A security guard watched them from an adjacent table. They went outside to finish
their conversation, but the security guard followed them. On March 10, Harmon and Dela Cruz
met at the loading dock so that Dela Cruz could give Harmon some signed petitions. A security
guard watched them. Dela Cruz felt uncomfortable, so they walked into the parking lot and to
Dela Cruz’s car. The security guard followed them, causing Dela Cruz to shield his action of
giving the petitions to Harmon.

Like their shadowing of Marsh, the security guards’ shadowing of Harmon is “activity
[that] clearly constitute[s] more than mere observation.” The surveillance would likely and
reasonably inhibit employees from talking to Harmon, and would instill fear in employees if they
did talk to Harmon. Indeed, the employees displayed this fear during the surveillance. The
Respondents have provided no credible or reasonable basis for this surveillance. On
February 10, March 3, and March 10, 2005, the Respondents unlawfully surveilled Harmon and
their employees while Harmon and the employees were engaged in protected activity. The
Respondents’ actions violated Section 8(a)(1) of the Act.

On January 19, 2005, Harmon and Laura Moye walked through the work areas of the
hotel and were followed within several feet by Dougher. Harmon was new to Turtle Bay, and
Moye was introducing her to the employees. These introductions likely took some amount of
time, and in turn, would have distracted some employees from their work. Although Dougher’s
actions would otherwise constitute unlawful surveillance, similar to the surveillance of Marsh
and Harmon described above, I conclude that the Respondents had a reasonable basis for this
surveillance. I realize that the problem with this determination is that Dougher began his
surveillance before Moye and Harmon disrupted any workers with introductions, just as Dougher
had begun following Santa Maria before Santa Maria had talked to any working employees.
However, in the absence of other evidence, for example, that Dougher did not know that such
introductions or disruptions would occur when he began his surveillance (making such an
assumption would be inappropriate in these circumstances because Harmon was new to Turtle
Bay and both Harmon and Moye were walking through the work areas together, facts which
were known by Dougher), I conclude that the evidence fails to establish this violation.

E. Disparagement and threat – Complaint, paragraph 21

“It is well settled that the Act countenances a significant degree of vituperative speech in
the heat of labor relations. Indeed, ‘[w]ords of disparagement alone concerning a union or its
officials are insufficient for finding a violation of Section 8(a)(1).’ Sears, Roebuck & Co., 305
NLRB 193 (1991).” Trailmobile Trailer, LLC, 343 NLRB No. 17, p. 1 (2004). Flip and intemperate
remarks that are mere expressions of personal opinion are protected by the free speech
provisions of Section 8(c). Id. “Employer statements must be viewed in context and not in
isolation to determine if they have the reasonable tendency proscribed by Section 8(a)(1).”
Flying Foods Group, Inc., 345 NLRB No. 10, p. 7 (2005). In addition, “the standard for
determining whether a statement violates Section 8(a)(1) is an objective one that considers
whether the statement has a reasonable tendency to coerce the employee or interfere with
Section 7 rights, rather than the intent of the speaker.” Id.

On March 5, 2005, Dougher engaged in a tirade against Harmon. The tirade occurred in
the employee cafeteria and in the presence of employees. His harangue included a threat to
discipline any employee who talked to Harmon. See Trailmobile Trailer, LLC, 343 NLRB No. 17,
p. 1 (“Here, the comments of [the Respondent’s managers], while disparaging, . . . did not
reasonably convey any explicit or implicit threats . . .”). Moreover, Dougher put teeth in his threat
to Harmon by saying the NLRB did not control him and he was not interested in what the NLRB
did.
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In determining whether Dougher’s statements have a reasonable tendency to coerce
employees, one must guard against assuming that employees have the same legal knowledge,
or indeed, confidence in the law’s efficacy, that a sophisticated, but not cynical, person might
possess. That is, whether Dougher would ultimately be successful in disciplining any or every
employee who talked to Harmon is not the question. And, in any event, the standard is an
objective one. Under all of the circumstances, I conclude that Dougher’s disparagement of
Harmon, coupled with his threat to discipline any employee who talked to Harmon, has a
reasonable tendency to coerce employees or interfere with Section 7 rights in violation of
Section 8(a)(1).

F. Threat of closure – Complaint, paragraph 25

An employer’s threat of retaliation for employees’ protected activity violates Section
8(a)(1) of the Act. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). An employer may make a
prediction as to the precise effects that union activity will have on the company, but

the prediction must be carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably probable consequences
beyond his control or to convey a management decision already arrived at
to close the plant in case of unionization.

395 U.S. at 617. The General Counsel contends that the Respondents unlawfully threatened to
close Turtle Bay in retaliation for its employees’ protected, union activities. The threat is
contained in Butt’s October 22, 2004 memorandum to all employees. The memorandum refers
to the boycott and picketing by the employees and Union, and states, “the union has made a
terrible mistake. We would rather close the resort than allow you and your families to be used as
hostages.” The reference to being used as hostages refers to the employees’ participation in the
union’s boycott and picketing. The memorandum directly threatens to close Turtle Bay (the
employer would prefer to close the resort) in reprisal for the protected activity (boycott and
picketing) and the continuation of such activity.

The only economic facts in the memorandum to support the threat of closure are
reduced hours of operation for Turtle Bay’s food and beverage outlets and shutting down some
guest rooms in all three wings of the hotel. (GC Exh. 6.) No facts are given to show the extent of
the business slowdown, how long the slowdown had been occurring, whether the slowdown had
increased when the boycott and picketing began, whether the slowdown was due to or
influenced by seasonal or other factors, or any other facts that could make the threat even
appear as a prediction based on factors beyond the Respondents’ control.

In determining whether an employer’s statement is an unlawful threat or a fact-based
prediction, the Board considers the totality of the relevant circumstances. NLRB v. Gissel
Packing Co., 395 U.S. at 589; Mediplex of Danbury, 314 NLRB 470, 471 (1994). The relevant
circumstances of the memorandum include the Respondents’ unfair labor practices before the
memorandum was issued, including its surveillance of union representatives whenever they
entered the resort. The relevant circumstances also include the boycott and picketing, but these
activities cut both ways because even if they were causing a business slowdown, they were
also the very protected activities that were the alleged cause of the threat to close the resort.

The Respondents cite several cases, none of which are on point. In NLRB v. S & H
Grossinger’s, Inc., 372 F.2d 26 (2d Cir. 1967), enfg. 156 NLRB 233 (1965), the court modified
the Board’s order to eliminate the reference to threats of reprisals. The threats were that the
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advent of the union would “stop the wheels of progress and growth” at the hotel, and would
“retard the progress” at the hotel, and result in “less steady work.” The statements the court
declined to enforce are not comparable to the Butt’s threat to close Turtle Bay.

In NLRB v. Collins & Alkman Corp., 338 F.2d 743 (5th Cir. 1964), the court declined to
enforce the portion of the Board’s order finding an unlawful threat in a letter to employees that
urged, “don’t gamble your future security and progress by voting for the [Union]. Let’s continue
to grow together – vote no.” The letter listed union companies that had also closed down, and
the letter argued that a union could not prevent a company from closing down. The company’s
letter was a reply to a letter from the union that listed nonunion companies that had closed
down. The company’s letter in Collins & Aikman Corp. is not comparable to the memorandum
and the threat in the present case. Urging employees not to gamble their security and progress,
even if the Board would now hold that such statements do not violate Section 8, is much
different from telling employees what the employer would rather close if the employees
continued to engage in protected, concerted activities. In the context of the memorandum and
the Respondents’ other violations of the Act, employees would reasonably understand from the
wording of the threat that they were endangering their jobs, and that the Respondents would,
and would rather, close Turtle Bay.

In Spartech Corp., 344 NLRB No. 72 (2005), the Board adopted, without exceptions, the
judge’s dismissal of a Section 8(a)(1) charge arising from an employer’s speech to his
employees. The employer said that if the company conceded to the union’s unreasonable
demands, it would lose business and could close. However, the employer then stated that the
company would not give in to the union’s unreasonable demands. Accordingly, there was no
threat of closure, and the allegation was dismissed. In the present case, there is a threat. Butt
told the employees that the Respondents would rather close than have the employees continue
in their organizing activities, even though the employees may only be “hostages” in such
activities.

In Butts’ memorandum, distributed to all employees, the Respondents threatened to
close Turtle Bay in retaliation for the employees’ protected, concerted activity. This threat
violated Section 8(a)(1).

G. Validation of union representatives’ parking at Turtle Bay – Complaint, paragraph 22

An employer violates Section 8(a)(5) and (1) of the Act when it unilaterally makes
changes in unit employees’ existing terms and conditions of employment without first bargaining
with the union about the proposed changes. NLRB v. Katz, 369 U.S. 736 (1962). In the present
case, the parties were engaged in negotiations for a collective-bargaining agreement throughout
the period involved in this case. Accordingly, the Respondents’ duty “encompasses a duty to
refrain from implementation of changes at all, unless and until an overall impasse has been
reached on bargaining for the agreement as a whole.” Bottom Line Enterprises, 302 NLRB 373,
374 (1991). “This proscription against unilateral action applies not only to mandatory bargaining
subjects that were specifically covered in the expired contract, but also to ‘an activity which has
been ‘satisfactorily established’ by practice or custom; an ‘established practice’; an ‘established
condition of employment’ . . . [or] a ‘longstanding practice.’” Golden State Warriors, 334 NLRB
651, 652 (2001) (citation omitted).

The Respondents’ practice of providing free parking to the union representatives when
they came to Turtle Bay pursuant to the contractual access provision was longstanding. The
Respondents did not offer evidence of any time that their free parking practice for union
representatives was not in effect before January 2005. This practice was known by and
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approved by the Respondents, which is shown by the fact that the union representatives’
parking tickets were stamped at the security dispatch window or in the human resources office.
Approval is also shown by the failure of the Respondents to object to the practice before
January 2005.

Union access to the employer’s facility is a term and condition of employment. Park
Manor Nursing Home, 314 NLRB No. 127 (1994) (not reported in Board volumes). Moreover,
the expired collective-bargaining agreement that still governed the relations between the Union
and the Respondents provided for union access to Turtle Bay, and that contractual term
survived the expiration of the contract. Fabric Warehouse, 294 NLRB 189 (1989).

Citing First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), the Respondents
contend that they were not obligated to bargain with the Union over the parking fee because the
bargaining obligation only extends to matters involving the relationship between the employer
and the employees. The Respondents argue that the parking fee issue is between the
Respondents and the Union, not the employees.

This artificial distinction is rejected. First, the Union is the representative of the
employees. Therefore, in this sense, what is done to the Union is also done to the employees.
Second, the necessary result of interfering with the union’s access to the employees is to
interfere with the employees’ access to the union. Third, union access is a mandatory subject of
bargaining. Fourth, union access was covered in the expired collective-bargaining agreement.

The Respondents appear to contend that the parking fee does not involve the union’s
access to Turtle Bay. That contention is also rejected. The parking fee certainly burdens the
Union’s access to Turtle Bay, a burden that had not existed before January 2005. Moreover, an
employer that takes an action against a union, but not against the employees, may still violate
Section 8 when the action interferes with the employees’ Section 7 rights. Diamond Walnut
Growers, Inc. v. NLRB, 53 F.3d 1085, 1089–1090 (9th Cir. 1995), enfg. 312 NLRB 61, 69
(1993). The unilaterally imposed parking fee changes the union’s access to Turtle Bay, and to
that extent, changes the employees’ access to their statutory representative. As the Board
stated in Axelson, Inc., 234 NLRB 414, 415 (1978), which involved payments to employees for
performing union functions, “[s]uch a matter concerns the relations between an employer and its
employees in that it is related to the representation of the members of the bargaining unit in
negotiations with an employer over terms and conditions of employment.” (citations omitted.)

The Respondents also argue that providing the Union with free parking at Turtle Bay is a
crime under Section 302 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 186.
That statute provides that it is unlawful for an employer to pay or deliver money or other thing of
value to a union representative. Section 302 of the LMRA was enacted to prohibit “corruption of
collective bargaining through bribery of employee representatives by employers [and] with
extortion by employee representatives.” Arroyo v. United States, 359 U.S. 419, 425–426 (1959).
Payments or things of value that assist the negotiating process, and which do not inure to the
benefit of an individual, do not violate the statute. International Assoc. of Machinists and
Aerospace Workers v. BF Goodrich Aerospace Aerostructures Group, 387 F.3d 1046 (9th Cir.
2004). Turtle Bay’s previous practice of allowing union representatives to park at the resort
without charge when the representatives came to the resort pursuant to the access provision of
the agreement was a courtesy that assisted the negotiating process and did not inure to the
benefit of any union employee. Moreover, the practice was consistent with Turtle Bay’s
allowance of persons having business with the resort to park there while conducting their
business. Accordingly, the practice did not violate Section 302 of the LMRA.

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The Respondents make no claim that union representatives ever used free parking at
Turtle Bay for anything other than their duties under the collective-bargaining agreement. Turtle
Bay is a substantial enterprise with approximately 360 unit members. Accordingly, a union
representative is assigned to the resort 2 days a week. The Respondents had a long and
established practice of allowing union representatives to park at Turtle Bay without charge. The
Supreme Court explained in NLRB v. Katz, 369 U.S. at 747, that unilateral action “will often
disclose an unwillingness to agree with the union. It will rarely be justified by any reason of
substance.” Moreover, and although it is not determinative of the question, it is apparent that the
motivation for the Respondents’ change in parking privileges was antiunion animus.

An employer violates Section 8(a)(5) and (1) of the Act by unilaterally and without notice
making a material, substantial, and significant change in a contractual access provision. Fabric
Warehouse, 294 NLRB at 192; Peerless Food Products, 236 NLRB 161 (1978). In Berkshire
Nursing Home, 345 NLRB No. 14 (2005), the employer, who had two parking lots adjacent to its
facility, closed one of the parking lots to most employees because of crowding and safety
problems. This resulted in the excluded employees being required to park at a distance up to a
5-minute walk from the facility. The Board determined that the difference between a 1-minute
walk from the closed lot and a 3 to 5-minute walk from the new parking area to the facility was
not a sufficiently significant difference to warrant imposing a bargaining obligation.

Because the General Counsel does not address the amount of the parking fee instituted
in January 2005, he seems to take the position that any unilateral change from free parking
violates the Respondents’ bargaining obligations under the Act. However, this position ignores
the requirement that such changes be significant. There was no evidence of the amount the
Respondents require union representatives to pay for parking. It may be that the parking fee is
so high as to constitute a significant change (the approximate ½ mile distance from Turtle Bay’s
entrance to the hotel would enhance the interference imposed by an inordinately high fee), or so
low as to constitute an insignificant change. In addition, there is no evidence that union
representatives have come to Turtle Bay any less frequently after the change in parking
privileges than before the change. Nevertheless, this negative “fact” is simply consistent with,
and not determinative of, the conclusion reached herein that the evidence fails to show the
change was significant. For the foregoing reasons, I am unable to conclude that the change in
parking privileges was a significant change that would require the Respondents to bargain
before making the change. Accordingly, I will recommend that this allegation be dismissed.

H. Discipline of Jeannie Martinson – Complaint, paragraph 26

In Nor-Cal Beverage Co., 330 NLRB 610 (2000), the employer disciplined an employee
who called a coworker a “scab” after the coworker said that he would cross and wanted to cross
a picket line at another facility. The next day, the employee said to his coworkers, “Oh, here’s
the company’s favorite scabs.” As in the present case, the employee was disciplined for
violating the employer’s no-harassment policy. Unlike the present case, the written discipline
issued to the employee did not specifically refer to the employee’s use of the word “scab.” The
Board found that the “scab” epithets were used in the course of protected activity, and, citing
Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 60–61 (1966) for the Supreme Court’s
approval that “’the Board has concluded that epithets such as ‘scab’ . . . are commonplace in
these struggles and [are] not so indefensible as to remove them from the protection of Section
7,’” held that the employee’s use of “scab” and “scabs” did not lose the protection of the Act.
See also Letter Carriers v. Austin, 418 U.S. 264, 282–283 (1974). The Board held that the
employee’s use of the word “scab,” unaccompanied by any threat or physical gestures or
contact, did not deprive the employee of the protection of the Act. Accordingly, the Board held
that the employer’s discipline of the employee for calling his coworker a scab violated Section
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8(a)(3) and (1) of the Act.

The nexus between the employee’s use of the word “scab” and the employee’s
protected activity was critical to the Board’s analysis in Nor-Cal. In the present case, Martinson
credibly testified that she was joking with the cook when she said, “Oh, looks like we are
working with a bunch of scabs.” The question is whether Martinson’s subjective non-
seriousness when she made her remark removes the statement from the protection of the Act. I
conclude, under these circumstances, that Martinson’s statement was said in the course of
protected activity despite her subjective intent to joke about it. What Martinson said is more
important than her subjective intent.

The Respondents did not consider whether or not Martinson was joking when they
disciplined Martinson. The Respondents disciplined Martinson solely for using the word “scabs.”
Also, the context in which Martinson used the term must be considered. Nor-Cal Beverage Co.,
330 NLRB at 611. Martinson made her statement to the cook the day after a 1-day strike in
which she and other employees did not cross the picket line, but other employees, especially
newer employees, did cross the picket line. And, her statement referred to the employees who
had crossed the picket line the previous day. Moreover, an employee will rarely use the term
“scab” except in the course of union activity because it directly refers to protected activity.

As the Board has stated, “epithets such as ‘scab’ . . . are commonplace in these
struggles.” A labor struggle has been occurring at Turtle Bay throughout the period involved in
this case. Martinson’s statement was made in this context. If the statement were not made in
the course of protected activity, Martinson’s subjective intent would not affect the result.
Similarly, her subjective intent does not and should not affect the result in these circumstances
where her statement was made in the course of protected activity. The factual issues are: what
did Martinson say and why did the Respondents discipline her. The evidence shows that
Martinson used the word scab to describe other employees, and the Respondents disciplined
her for saying this. She did not use profanity, she did not threaten violence, and she did not
know her brief and private discussion with the cook had been overheard.

The Respondents cite various cases in support of their argument that they may lawfully
discipline Martinson for using the word “scab.” The most recent of the cases cited by the
Respondents is 1965. In that case, NLRB v. R.C. Can Co., 340 F.2d 433 (5th Cir. 1965), the
employee was disciplined for threatening physical violence against the plant manager and he
would “kick the hell out of him the first chance I got.” Id. at 434. The court declined to enforce
the Board’s order that the employee be reinstated. R.C. Can Co. is inapposite to the facts in this
case.

In Caterpillar Tractor v. NLRB, 230 F.2d 357 (7th Cir. 1956), the court declined to
enforce the Board’s order in which the Board found the employer had violated the Act in
disciplining employees who had worn buttons saying, “Don’t be a Scab.” The court stated that
the use of the word “scab” was explosive and connoted opprobriousness and vileness. The
court’s decision has not been interpreted to allow a general ban on the use of the word “scab.”
E.g., NLRB v. Mead Corp., 73 F.3d 74, 79 (6th Cir. 1996). Moreover, the case was decided
under circumstances that at least portended violence. In the present case, although the
Respondents allege that the statement constituted harassment, there is no contention or
evidence that violence or the threat of violence was involved in any way. Whatever connotations
the word “scab” may have had in 1956, those connotations were apparently meliorated by 1966,
the date of the Supreme Court’s decision in Linn. Moreover, the law in this area, as most
recently clarified in Nor-Cal Beverage Co., is that the use of the word “scab,” when used without
being accompanied by violence or threats or physical gestures, and used in the course of
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protected activity, may not be sanctioned. Nor-Cal Beverage Co., 330 NLRB 610 (2000).

As the Board explained in Nor-Cal Beverage Co., the Wright Line analysis is not
appropriately applied in the present circumstances because the employer’s motive is not in
issue. Neff-Perkins Co., 315 NLRB 1229 fn. 2 (1994). The Respondents admittedly disciplined
Martinson because she described other employees as “scabs.” The question is whether
Martinson’s statement was protected.

Under all the circumstances, Martinson was engaged in protected activity when she said
to the cook, “Oh, looks like we are working with a bunch of scabs.” The Respondents disciplined
Martinson for this protected activity. Accordingly, the Respondents’ discipline of Martinson
violated Section 8(a)(1) and (3) of the Act.

I. Suspension of Timothy Barron – Complaint, paragraph 26

The Respondents admit that they suspended Barron for 5 days because he had called
Baeseman a “scab.” In Barron’s encounter with Baeseman, no vulgarity was used, and no
violence occurred or was threatened. No physical contact occurred or was threatened. Barron’s
use of the word “scab” was in the course of protected activity and occurred during a brief,
protected discussion between two coworkers who were on opposing sides of the labor dispute
then occurring at Turtle Bay.

Under Nor-Cal Beverage Co., an employer violates Section 8(a)(1) and (3) of the Act
when it disciplines an employee for using the word “scab” in the course of protected activity, and
the employee’s statement is unaccompanied by any threat or physical gestures or contact.

The Respondents contend that Barron intended to injure Baeseman, and that Barron
could properly be disciplined for calling Baeseman a scab with such an intent. (See R Br., p.
222.) The response to this contention is twofold. First, Barron was suspended for his use of the
word “scab,” not his intent when he said it. Second, the evidence does not support the claim that
Barron intended to injure Baeseman. Indeed, there is no credible evidence to support this
contention, a contention that is also contradicted by Baeseman’s demeanor in describing the
incident. By calling Baeseman a scab, Barron was likely trying to persuade Baeseman to
change his antiunion position by telling Baeseman how others viewed his actions.

The Respondents argue that Barron’s statements to Baeseman were disruptive and
violated the Respondents’ alleged zero-tolerance policy on harassment. However, the
Respondents did not discipline Barron because he had disrupted the workplace or had violated
the policy on harassment. The Respondents suspended Barron because he had called
Baeseman a “scab.” In addition, the Board dealt with a similar contention in Nor-Cal Beverage
Co., 330 NLRB at 612 fn. 5:

While we agree with our colleague that employees enjoy Sec. 7 rights both
to engage in and refrain from supporting a union, we fail to see how an
employer’s punishment of an employee’s exercise of either right can be
justified by an assertion that language used by the employee in the course
of exercising that right, although nonthreatening, was viewed as
“harassment” by another employee who disagreed with him. The point is
that the Act prohibits an employer from punishing an employee’s
expression of either prounion or antiunion views unless they are
manifested in a manner that exceeds the protection of the Act; and, as
explained above, that is not the case here.
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See also New York Telephone Co., 266 NLRB 580, 582 (1983) (labeling the activity harassment
does not change or affect the protected nature of the activity). Similarly, Barron’s expression of
his prounion views was not made in a manner that exceeds the protection of the Act. Barron’s
statements were protected, and the Respondents admittedly suspended him for uttering those
protected statements. Accordingly, the Respondents’ suspension of Barron violated Section
8(a)(1) and (3) of the Act.10

J. Termination of Mark Feltman – Complaint, paragraph 26

Under the test set forth in Wright Line, the General Counsel has the burden of proving by
a preponderance of the evidence that the employee’s union or other protected concerted activity
was a substantial or motivating factor in the employer’s discharge of an employee. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). To meet this
burden, the General Counsel must establish four elements. First, the existence of activity
protected by the Act. Second, that the Respondent was aware of such activity. Third, that the
alleged discriminatee suffered an adverse employment action. Fourth, a motivational link, or
nexus, between the employee’s protected activity and the adverse employment action.
American Gardens Management Co., 338 NLRB No. 76 (2002).

If the General Counsel satisfies his initial burden under Wright Line, the burden then
shifts to the employer, in the nature of an affirmative defense, to demonstrate that the same
action would have taken place even in the absence of the protected conduct. In meeting this
burden, the employer cannot simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would have taken the same action in
the absence of the protected activity. T & J Trucking Co., 316 NLRB 771 (1995). Nevertheless,
the employer’s defense does not fail simply because not all of the evidence supports it, or even
because some evidence tends to negate it. Merrilat Industries, 307 NLRB 1301, 1303 (1992).
The ultimate burden of proving discrimination always remains with the General Counsel. Wright
Line, supra.

The first three elements of the Wright Line analysis have been established and are not
seriously disputed by the Respondents. Feltman engaged in protected activity by participating in
the strike on May 21, as well as by wearing union buttons that were observed by Ramos and
her managers. The Respondents knew of Feltman’s protected activity on May 21 because
Dougher observed Feltman on the picket line, and the Respondents knew Feltman was wearing
union buttons because Ramos and her manager commented on the buttons. In addition, Ramos
admitted that she learned of Feltman’s May 21 picket line activity when she supposedly
investigated the charge against Feltman. The Respondents dispute the fourth element of the
10 Because a Wright Line analysis is unnecessary, the fact that the Respondents initially
threatened to discipline Barron for swiping out wearing his regular clothes, as well as evidence
relating to disparate treatment, will not be considered because the Respondents’ motivation in
disciplining Barron is not in issue. See U.S. Coachworks, Inc., 334 NLRB 955, 957 (2001)
(shifting explanations for disciplining an employee may provide evidence of unlawful motivation).
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analysis, viz., the motivational link between Feltman’s union activity and his termination. The
Respondents also contend that they would have discharged Feltman without regard to his
protected activities.

The motivational link is established by proof of antiunion animus. Robert F. Kennedy
Medical Center, 332 NLRB 1536 (2000). Antiunion animus may be found from direct and from
indirect or circumstantial evidence. Indeed, indirect evidence is often the only way in which
motivation can be proven since an employer will rarely, if ever, openly acknowledge that an
employee was or was being fired because of some reason that the law forbids. Sahara Las
Vegas Corp., 284 NLRB 337, 347 (1987). In recognition of this plain and pervasive fact, courts
have devised alternative methods for a party to prove motivation, including the use of indirect or
circumstantial evidence. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Wright Line, supra.

Motive may be inferred from the total circumstances of the case, Fluor Daniel, Inc., 304
NLRB 970 (1991), including disparate treatment of the alleged discriminatee, Holiday Inn East,
281 NLRB 573, 575 (1986), the timing of the employment action in relation to the protected
activity, Taylor & Gaskin, Inc., 277 NLRB 563 fn.2 (1985), failure to adequately investigate the
alleged misconduct, New Orleans Cold Storage & Warehouse Co., 326 NLRB 1471 (1998), and
concurrent 8(a)(1) violations. Greystone Bakery, 327 NLRB 433 (1999); Electronic Data
Systems, 305 NLRB 219 (1991). The employer’s asserted reasons for the discharge may also
disclose animus if those reasons are found to be false or pretextual. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); see Reeves v. Sanderson Plumbing
Products, 530 U.S. 133 (2000).

First, there is direct evidence of union animus, not only concerning the Union, but also
concerning Feltman because of his involvement with the Union. After Feltman complained to
Ramos about Marsh, Ramos and Feltman’s manager considered Feltman to be a good and
favored employee. Ramos even told Feltman that he was in line to receive a pay raise above
the limits of the current collective-bargaining agreement. However, less than 2 months after
Ramos told Feltman about his prospective pay increase, Feltman walked into her office wearing
a union button. Ramos said she thought Feltman had signed the antiboycott petition, and after
Feltman said no, Ramos replied, “Oh, oh.” When Feltman again came into the human resources
office wearing a union button, another manager in the office, on seeing the button, told Feltman,
“I thought you were [a] more sensible guy, but who am I.” This statement, like Ramos’s “oh, oh”
comment, contains the implied threat that being prounion would not be favorable to Feltman’s
employment opportunities at Turtle Bay.

The direct evidence also includes the Respondents’ shadowing of union representatives
whenever they came on Turtle Bay property. This shadowing started at least in June 2004, and
possibly as early as March 2004. In addition, the Respondents solicited the police on several
occasions to assist in evicting union representatives from Turtle Bay and, on one or more
occasions, to witness the Respondents issue trespass notices to union representatives.
Accordingly, the direct evidence demonstrates antiunion animus.

The indirect evidence of the Respondents’ motivation shows that Feltman was treated
differently from similarly situated employees. For example, Stone had called Mendivil a “f—ing
ass” and squirted Mendivil with a water gun. Stone did not receive any discipline for these
actions. The Respondents argue that Feltman’s actions are different from Stone’s actions
because Feltman threatened a federal witness because of his testimony. As noted above, this
argument fails for several reasons.

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First, calling someone a “f—ing ass,” while crude, is not a threat. Even if there could be
circumstances in which such an epithet could be taken as a threat, no such circumstances exist
herein. There was no physical display by Feltman, and there was no physical contact or threat
of contact. There is no history of physical confrontations between Feltman and Mendivil. Indeed,
there is no evidence of any physical confrontations, or even harsh words (except Delosantos’s
epithet to a striking employee), between prounion employees and antiunion employees at Turtle
Bay throughout the period of time in this case. Under these circumstances, and considering that
the epithet rather crudely expresses only the opinion of the speaker, just as Stone likely had
expressed his opinion, the alleged epithet was not threatening.

Moreover, Feltman’s alleged epithet immediately followed Mendivil’s failure or refusal to
answer Feltman’s question, rather than the question itself. Feltman’s alleged epithet could just
as easily have referred to Mendivil’s refusal to answer a simple question from an acquaintance
and a coworker. Mendivil could have answered the question “How was court” with one or
several words and without discussing or referring to testimony. Indeed, a simple “okay” could
have sufficed. But, Mendivil refused to answer. An epithet under these circumstances, while
crude and unfortunate, is not completely surprising (especially considering Ramos’s testimony
that employees quite frequently use the word) and is not threatening.

In contrast, a possibly threatening use of the word is found in the statement by
Delosantos on May 21, 2005 to a picketing employee. Delosantos, while crossing the picket
line, told the employee, who was walking the picket line, to “f— off.” This statement, under the
circumstances of the picket line and the confrontation of prounion and antiunion workers, is at
least closer to a threat than the epithet allegedly used by Feltman. Nevertheless, Delosantos
received only a written warning for this conduct.

One distinguishing characteristic of Stone’s conduct is that he shot a water gun at
Mendivil while he was calling Mendivil a “f—ing ass.” However, this difference would warrant
more severe discipline for Stone than Feltman. Yet, Stone received no discipline for his actions.
Indeed, there is no evidence that any employee has been terminated for cursing, except
Feltman. The Respondents’ characterization of Feltman’s alleged epithet as threatening is false,
and does not distinguish Feltman’s conduct from Stone’s conduct.

Accordingly, the Respondents treated Feltman disparately from other employees. The
Respondents attempt to justify their disparate treatment by falsely characterizing Feltman’s
conduct. The Respondents’ explanation of Feltman’s discipline is a pretext.

Another factor from which antiunion animus could be inferred is the timing of the
employment action. The Respondents suspended Feltman and decided to discharge him within
approximately 6 weeks of the date he walked on the May 21 picket line. More importantly, the
Respondents made their decision to discharge Feltman within 2 days of their failed attempt to
obtain a federal court injunction against the Union. This timing is more than merely suspicious. It
supports the finding that the Respondents were motivated by antiunion animus in their decision
to discharge Feltman.

An employer’s failure to investigate or adequately investigate the stated reasons for an
employee’s discharge tends to show that the stated reasons were not determinative in the
employment decision, and that the discharge would occur without regard to the viability of the
stated reasons. Ramos had been off-island on June 10, the date Feltman was charged and
suspended by Dougher. She returned on June 11, a Saturday, and met with Feltman, Moye,
and Harmon. She decided that day to terminate Feltman’s employment. There is no evidence
that she investigated anything. She claimed to have learned in her investigation that Feltman
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had walked on the picket line on May 21, but how this fact would be relevant to a proper
investigation of Feltman’s conduct on June 10 is a mystery. The Respondents’ failure to conduct
an adequate investigation into the reasons for the termination of Feltman is further evidence of
the Respondents’ antiunion animus.

An employer’s concurrent 8(a)(1) violations may also demonstrate unlawful animus. The
Respondents’ concurrent 8(a)(1) violations, as set forth above, are numerous. In particular,
Butt’s violation of Section 8(a)(1) by threatening closure if the employees persisted in their union
activities is a significant factor. Lemon Drop Inn, 269 NLRB 1007, 1007 (1984) (“the Board and
the courts have long regarded union animus demonstrated by 8(a)(1) coercion as a highly
significant factor in determining motive.”). The Respondents’ unlawful actions, including the
shadowing of union representatives, summoning police to assist in evicting the union
representatives from Turtle Bay, surveillance of union and protected activities, and the berating
of Harmon and threatening to discipline any employee she talked to, are among the 8(a)(1)
violations that demonstrate unlawful animus.

When an employer attempts to prove its affirmative defense to a charge of discrimination
under Section 8(a)(3), it must prove that it would have taken the same action in the absence of
protected activity, not that it could have taken such action or that it otherwise had a legitimate
reason for the action. T & J Trucking Co., 316 NLRB 771 (1995); Center Property Management,
277 NLRB 1376 (1985). The Respondents have not proven that they would have taken the
same action against Feltman in the absence of his protected activity. Feltman’s “misconduct,”
stripped of the Respondents’ unproven and inappropriate characterization, amounts to cursing
at a coworker. When Stone called Mendivil the same epithet, and exacerbated the name-calling
by shooting Mendivil with a water gun, Stone was not even disciplined. When Delosantos used
similar coarse language to a coworker in a threatening manner and in threatening
circumstances, she was given a written warning.

The Respondents argue that even if Feltman was treated differently from other
employees, his termination was justified because the resort may lawfully discharge employees
who use profane and indecent language. NLRB v. Longview Furniture Co., 206 F.2d 274 (4th
Cir. 1953). Longview Furniture is inapposite to the present case. Feltman was not discharged
for using profane language, but for threatening a federal witness. Moreover, the Respondents’
asserted reason for Feltman’s discharge is pretextual.

The Respondents argue that Feltman was discharged for violating Turtle Bay’s “zero-
tolerance” policy. However, the Respondents did not cite its “zero-tolerance” policy when
Feltman was terminated. Moreover, this policy requires nothing more than making note of
instances of harassment. It does not require the imposition of any discipline, much less
termination, for any particular instance of harassment. As the Respondents’ witnesses
explained, it all depends on the facts. The Respondents have answered instances of alleged
harassment by imposing no discipline (Stone), by issuing a written warning (Delosantos), and by
suspending a repeated offender (Pinacate). Feltman was the only employee who was ever fired
for violating the “zero-tolerance” policy, assuming of course that the policy entered into the
decision. Accordingly, the “zero-tolerance” policy did not enter into the Respondents’ decision to
discharge Feltman, and if it did, the Respondents disparately applied the policy to Feltman. In
addition, the Respondents’ present attempt to interject this “zero-tolerance” policy as the reason
for Feltman’s discharge represents a change from the reason originally given for Feltman’s
termination. Such shifting explanations provide additional evidence of unlawful motivation. U.S.
Coachworks, Inc., 334 NLRB 955, 957 (2001).

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The Respondents argue that Feltman “engaged in a cruel, deliberate and mean spirited
act of intimidation toward Mendivil. Feltman tried to silence a federal court witness, and to
punish and intimidate that witness for his testimony.” (R Br., p. 229.) This factual argument is
without merit. There was no threat in Feltman’s words, there was no threat in his gestures, and
there was no threat in the circumstances. The Respondents’ argument continues the pretext the
Respondents first planted in their termination memorandum, which accuses Feltman of a
“federal crime” for “threatening or retaliating against a federal witness.” (GC Exh. 27.) Thus, the
Respondents’ contrived and fanciful factual argument arises from the reason set forth in their
termination memorandum, a reason that was likely inserted in order to stigmatize Feltman and
to give his encounter with Mendivil as ignominious and criminal a characterization as possible.
However, by doing so, the Respondents magnified their inability to prove the charge they
leveled against Feltman and highlighted the pretextual nature of their reason for Feltman’s
discharge.

The evidence, including the demeanor of Dougher and Ramos, shows that the
Respondents did not actually believe Feltman had threatened Mendivil for being a federal
witness, much less had committed a crime in doing so. However, if the Respondents did believe
that charge and if they did assert that charge against Feltman in good faith, there is no evidence
that they reported this allegedly perceived crime to the federal authorities. Having failed in this
duty, the Respondents must acknowledge that they and their managers might have committed
the crime of misprision of felony. 18 U.S.C. § 4. The Respondents have also admitted that they
engaged in criminal conduct by providing free parking to the union representatives during their
onsite visits pursuant to the contract. Such self-incriminating admissions, rare under the best of
circumstances, are easily made by these Respondents who understand that the underlying
allegations of criminal conduct—giving something valuable to a union official in violation of the
statute and threatening a federal witness—have no basis in fact or law and are pretextual,
meant to conceal the Respondents’ true reasons for imposing a parking fee on union
representatives and for terminating Feltman’s employment.

The determination that the reasons advanced by the Respondents for terminating
Feltman’s employment are a pretext for their actual motive in taking that action necessarily
means that the asserted reasons were not relied on. Accordingly, there is no need to further
address these reasons because a finding of pretext “leav[es] intact the inference of wrongful
motive established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722 (1981);
“A finding of pretext defeats any attempt by the Respondent to show that it would have
discharged the discriminate[e]s absent their union activities.” Rood Trucking Co., 342 NLRB No.
88, slip op. 5 (2004). Alternatively, because the Respondents’ reasons for discharging Feltman
are unsupportable under the standards it normally applies to its other employees, I conclude
that the Respondents have not proven that they would have taken the same action in the
absence of Feltman’s protected activity. Hospital San Pablo, Inc., 327 NLRB 300 (1998).

The animosity between the Respondents and the Union seems to have increased
throughout the period involved in this case. Certain events exacerbated the enmity, including
the Union’s March 25, 2004 rally through Turtle Bay’s hotel lobby and the Respondents’ defeat
in their federal action against the Union on June 9, 2005. These exacerbating tensions led to,
respectively, (1) the shadowing of union representatives throughout Turtle Bay whenever they
came onto resort property, and (2) the firing of Feltman.

Thus, increased and increasing tensions, brought on by the failure to reach agreement
at the bargaining table, and perhaps leading to frustration on both sides of the table, led to
violations of the law, often through the abuse of power. Ill-conceived actions were engendered,
such as the shadowing of union representatives and the firing of a good employee, that the
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employer may have never done in the past and would not otherwise think of doing. The actions
may be borne of frustration, may be ineffectual, may be intended to harm the other side and its
supporters, and may even be puerile at times, but the actions, as found, are nevertheless illegal.

For all of the foregoing reasons, the Respondents violated Section 8(a)(3) and (1) in
terminating the employment of Feltman.

Conclusions of Law

1. The Respondents, Oaktree Capital Management, LLC (Oaktree) and TBR Property,
LLC (TBR Property), and Benchmark Hospitality, Inc. (Benchmark) are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. UNITE HERE! Local 5 (Union) is a labor organization within the meaning of Section
2(5) of the Act.

3. Oaktree and TBR Property are single employers of the employees at Turtle Bay
Resort, Kahuku, Hawaii. Benchmark Hospitality, Inc. is a joint employer of the employees at
Turtle Bay with TBR Property and its single employer, Oaktree.

4. At all material times, the Union has been the designated exclusive collective-
bargaining representative of the Respondents’ employees at Turtle Bay, in the following
appropriate bargaining unit within the meaning of Section 9(b) of the Act:

All employees performing work at the Turtle Bay Resort facility covered
under the collective-bargaining Agreement between Hilton and the Union
effective for the period February 28, 1999 through February 28, 2002.

5. The Respondents violated Section 8(a)(1) of the Act by unlawfully maintaining the
following rules:

a. “[S]olicitation of any kind of one staffmember by another is prohibited while
either person is on working time or in a public or work area.”

b. “Distribution by staffmembers of advertising materials, handbills, printed or
written literature of any kind in working or public areas of our Resort is prohibited at all times.”

c. “Should a staffmember wish to visit the Resort with family or friends, they may
do so with the prior approval of their manager and Planning Committee Member. You will be
required to have a ‘Return to Property’ pass.”

d. The Respondents’ rule that prohibits employees’ “presence in the Resort more
than 30 minutes before or after your shift.”

e. “Being present on company premises at any time other than the employee’s
assigned work shift, unless specifically authorized by his/her supervisor or picking up paycheck”
is misconduct.

f. “Walking off the job will be considered voluntary termination.”

g. The Respondents’ rule prohibiting “refusing to cooperate during a company
investigation.”
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6. The Respondents violated Section 8(a)(1) of the Act by telling union representatives
that they were trespassing at Turtle Bay and that they had no right to be at Turtle Bay, by telling
the Union that it could not collect dues at Turtle Bay, by summoning police to assist in evicting
union representatives from Turtle Bay, by summoning police to witness the Respondents
handing Trespass Notices to union representatives, by issuing and handing Trespass Notices to
union representatives, by evicting union representatives from Turtle Bay, by illegally surveilling
union representatives whenever the union representatives came to Turtle Bay, by illegally
surveilling employees and union representatives who were engaged in peaceful demonstrations
on the public highway in front of Turtle Bay and on the public beach adjacent to Turtle Bay, by
illegally denying union demonstrators and employees access to a public beach adjacent to
Turtle Bay’s property, by threatening to discipline employees who talked to union
representatives at Turtle Bay, and by threatening to close Turtle Bay in retaliation for protected,
concerted activity.

7. The Respondents violated Section 8(a)(5) and (1) of the Act by unilaterally changing
the access provision of the collective-bargaining agreement, such as evicting union
representatives from Turtle Bay, and preventing union representatives from collecting dues at
Turtle Bay,

8. The Respondents violated Section 8(a)(5) and (1) of the Act because the
Respondents failed and refused to bargain in good faith with the Union as the exclusive
bargaining representative of the employees at Turtle Bay by refusing to provide information and
by providing some information after an unreasonable and unlawful delay, information that was
requested by the Union in separate letters on April 28, August 30, and September 13, 2004.

9. The Respondents violated Section 8(a)(3) and (1) of the Act by unlawfully discharging
Mark Feltman, by unlawfully suspending Timothy Barron, and by unlawfully disciplining Jeannie
Martinson.

10. The foregoing violations constitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The Respondents will be directed to turn over to the Union the
requested information described in this decision.

The Respondents having discriminatorily discharged an employee, they must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondents having
discriminatorily suspended an employee, they must make him whole for any loss of earnings
and other benefits arising from the suspension.

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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11

ORDER

The Respondents, Oaktree Capital Management, LLC, TBR Property, LLC, and
Benchmark Hospitality, Inc., their officers, agents, successors, and assigns, shall

1. Cease and desist from

a. Failing and refusing to bargain in good faith with the Union as the exclusive
bargaining representative of their employees by failing and refusing to furnish the Union with the
information requested by the Union in its letters of April 28, August 30, and September 13,
2004.

b. Unilaterally changing the access provision of the collective-bargaining
agreement with the Union until an agreement is reached or there is an impasse on all
mandatory subjects of bargaining.

c. Maintaining the rules of conduct applicable to employees that have been found
to violate Section 8(a)(1) of the Act, or similar rules, and that are set forth in paragraph 5 of the
above Conclusions of Law.

d. Maintaining overly broad rules that limit employees’ right to discuss their
wages and working conditions.

e. Maintaining overly broad rules that prohibit employees from soliciting or
distributing literature in nonwork areas and during nonwork time.

f. Maintaining overly broad rules that prohibit employees’ presence on Turtle Bay
property.

g. Maintaining overly broad rules that restrict employees’ rights to engage in
protected concerted activity.

h. Telling representatives of the Union that they are trespassing and have no
right to be on Turtle Bay property contrary to their contractual right to be on the premises.

i. Issuing trespass notices to representatives of the Union contrary to their
contractual right to be on the premises.

j. Evicting representatives of the Union from Turtle Bay contrary to their
contractual right to be on the premises.

k. Summoning law enforcement officials to remove or to assist in removing union
representatives contrary to the union representatives’ right to be on the premises.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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l. Telling union representatives that they are not permitted to collect dues at
Turtle Bay contrary to their contractual right of access.

m. Photographing or videotaping union representatives and employees who are
engaged in peaceful demonstrations.

n. Following union representatives in the Turtle Bay hotel when the union
representatives are engaged in union activities pursuant to the contractual access provision.

o. Eavesdropping on conversations between union representatives and
employees.

p. Preventing union representatives and employees from going to the public
beaches adjacent to Turtle Bay’s property.

q. Disparaging union representatives and threatening to discipline employees for
talking to union representatives.

r. Threatening to close Turtle Bay in retaliation for protected activity such as
demonstrations and boycotts.

s. Discharging, suspending, disciplining or otherwise discriminating against any
employee for supporting the Union or engaging in protected activities.

t. In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

a. Rescind the rules set forth in paragraph 5 of the above Conclusions of Law.

b. Provide and give to the Union all of the information requested by the Union in
its letters of April 28, August 30, and September 13, 2004.

c. Destroy any videotape, pictures, negatives, and other electronic images
obtained during unlawful surveillance of union and protected activity, viz., the unlawful
surveillance conducted on April 2 and 17, 2004.

d. Continue in full force and effect the access provision of the collective-
bargaining agreement with the Union until an agreement is reached or there is an impasse on
all mandatory subjects of bargaining.

e. Within 14 days from the date of the Board’s Order, offer Mark Feltman full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

f. Make Mark Feltman and Timothy Barron whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, in the manner set forth in
the remedy section of the decision.

JD(SF)-23-06
g. Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Mark Feltman, the unlawful suspension of Timothy
Barron, and the unlawful discipline of Jeannie Martinson, and within 3 days thereafter notify the
employees in writing that this has been done and that the discharge, suspension, and discipline
will not be used against them in any way. 5
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h. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.

i. Within 14 days after service by the Region, post at their facility in Kahuku,
Oahu, Hawaii, copies of the attached notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 37, after being signed by the Respondents’
authorized representatives, shall be posted by the Respondents and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondents have gone out of business or closed the
facility involved in these proceedings, the Respondents shall duplicate and mail, at their own
expense, a copy of the notice to all current employees and former employees employed by the
Respondents at any time since February 2004.

j. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondents have taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, DC, May 24, 2006.

____________________
Joseph Gontram
Administrative Law Judge

12 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this Notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT fail and refuse to bargain in good faith with the Union as the exclusive
bargaining representative of Turtle Bay’s employees by failing and refusing to furnish the
Union with information requested by the Union.

WE WILL NOT unilaterally change the union access provision of the collective-
bargaining agreement with the Union until an agreement is reached or there is an
impasse on all mandatory subjects of bargaining.

WE WILL NOT maintain overly broad rules that limit employees’ right to discuss their
wages and working conditions.

WE WILL NOT maintain overly broad rules that prohibit employees from soliciting or
distributing literature in nonwork areas and during nonwork time.

WE WILL NOT maintain overly broad rules that prohibit employees’ presence on Turtle
Bay property.

WE WILL NOT tell representatives of the Union that they are trespassing and have no
right to be on Turtle Bay property contrary to their contractual right to be on the
premises.

WE WILL NOT issue trespass notices to representatives of the Union contrary to their
contractual right to be on the premises.

WE WILL NOT evict representatives of the Union from Turtle Bay contrary to their
contractual right to be on the premises.

WE WILL NOT summon law enforcement officials to remove or to assist in removing
union representatives contrary to the union representatives’ right to be on the premises.

WE WILL NOT tell union representatives that they are not permitted to collect dues at
Turtle Bay contrary to their contractual right of access.

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WE WILL NOT photograph or videotape union representatives and employees who are
engaged in peaceful demonstrations.

WE WILL NOT follow union representatives in the Turtle Bay hotel when the union
representatives are engaged in union activities pursuant to the contractual access
provision.

WE WILL NOT eavesdrop on conversations between union representatives and
employees.

WE WILL NOT prevent union representatives and employees from going to any public
beach adjacent to Turtle Bay’s property.

WE WILL NOT disparage union representatives and threaten to discipline employees for
talking to union representatives.

WE WILL NOT threaten to close Turtle Bay in retaliation for protected activity such as
demonstrations and boycotts.

WE WILL NOT discharge, suspend, discipline or otherwise discriminate against any
employee for supporting the Union or engaging in protected activities.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL furnish to the Union the information it requested in its letters of April 28,
August 30, and September 13, 2004.

WE WILL rescind the overly broad rule in our employee handbook that limits employees’
rights to discuss their wages and working conditions.

WE WILL rescind the overly broad rule in our employee handbook that prohibits
employees from soliciting or distributing literature in nonwork areas and during nonwork
time.

WE WILL rescind the overly broad rule in our employee handbook that prohibits
employees’ presence on Turtle Bay property.

WE WILL rescind the rules and regulations in our Staff Handbook (Collective Bargaining
Unit Version) and our handbook of rules and regulations that have been found to
unlawfully infringe on our employees’ Section 7 rights.

WE WILL destroy any videotape, pictures, negatives, and other electronic images
obtained during our unlawful surveillance of union and protected activity on April 2 and
17, 2004.

WE WILL continue in full force and effect the union access provision of the collective-
bargaining agreement until an agreement is reached or there is an impasse on all
mandatory subjects of bargaining.

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WE WILL, within 14 days from the date of this Order, offer Mark Feltman full
reinstatement to his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.

WE WILL make Mark Feltman whole for any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of this Order, remove from our files any
reference to the unlawful discharge of Mark Feltman, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that the discharge will not be
used against him in any way.

WE WILL, within 14 days from the date of this Order, remove from our files any
reference to the unlawful discipline of Jeannie Martinson and Timothy Barron, and WE
WILL, within 3 days thereafter, notify each of them in writing that this has been done and
that the disciplines will not be used against them in any way.

OAKTREE CAPITAL MANAGEMENT, LLC,
TBR PROPERTY, LLC, and
BENCHMARK HOSPITALITY, INC.
(Respondents)

Dated:_________________________ By: __________________________________
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the national Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov

300 Ala Moana Boulevard, Room 7-245
Honolulu, Hawaii 96850-4980
Hours 8 a.m.-4:30 p.m.
808-541-2814

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANONE
THIS NOTICE MUST REMAIN POSTED FOR 60 SONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 808-541-2815.

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