Turtle Bay Resorts

National Labor Relations Board - Board Decisions

Mar 31, 2009

353 N.L.R.B. 1242 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 127
1242
Oaktree Capital Management, LLC and TBR Prop-
erty, LLC, a single employer, d/b/a Turtle Bay
Resorts, and Benchmark Hospitality, Inc. and
UNITE HERE! Local 5. Cases 37–CA–6601–1,
37–CA–6642–1, 37–CA–6669–1, 37–CA–6691–1,
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, and 37–CA–
6878–1
March 31, 2009
DECISION AND ORDER REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On May 24, 2006, Administrative Law Judge Joseph
Gontram issued the attached decision. The filings before
the National Labor Relations Board in connection with
review of the judge’s decision are the Respondents’
amended exceptions and the General Counsel’s answer-
ing brief, limited exceptions, and supporting brief.1
The Board2 has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,3 findings,4 and conclusions, as

1 On March 30, 2007, the Board granted the General Counsel’s mo-
tion to strike the Respondents’ original exceptions and brief because
they failed to comply with the Board’s rules. The Board afforded the
Respondents an opportunity to resubmit their documents in compliant
form. Thereafter, the Respondents filed amended exceptions and an
amended supporting brief. The General Counsel filed a motion to
strike these documents, and the Respondents filed an opposition and
commentary in opposition to the motion. On May 7, 2007, the Board
rejected the Respondents’ commentary. On June 19, 2007, the Board,
Member Schaumber dissenting, granted the General Counsel’s motion
in part by striking the Respondents’ amended brief for the continued
failure to comply with the Board’s rules. The Board accepted the Re-
spondents’ amended exceptions. On December 21, 2007, the Board
denied the Respondents’ motion for reconsideration of the order strik-
ing the amended brief.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Respondents except to many of the judge’s evidentiary and
procedural rulings. Sec. 102.35 of the Board’s Rules and Regulations
provides, in pertinent part, that a judge should “regulate the course of
the hearing” and “take any other action necessary” in furtherance of the
judge’s stated duties and authorized by the Board’s Rules. Thus, the
Board accords judges significant discretion in controlling the hearing
and directing the creation of the record. See Parts Depot, Inc., 348
NLRB 152 fn. 6 (2006), enfd. mem. 260 Fed. Appx. 607 (4th Cir.
2008). Further, it is well established that the Board will affirm an evi-
dentiary ruling of an administrative law judge unless that ruling consti-
tutes abuse of discretion. See Aladdin Gaming, LLC, 345 NLRB 585,
modified below, and to adopt the recommended Order as
modified and set forth in full below.
The Union represents approximately 360 employees in
the Respondents’ resort complex on the island of Oahu in
Hawaii. The unfair labor practice allegations in this case
arose out of the Union’s campaign to secure a new col-
lective-bargaining agreement after the former contract
expired on November 25, 2003. The Union and employ-
ees engaged in rallies, picketing, and a boycott of the
resort. The complaint alleged that the Respondents’ re-
action to this campaign included multiple violations of
Section 8(a)(1), (3), and (5) of the Act from February
2004 through September 2005.
We affirm the judge’s findings, for the reasons he
states, that the Respondents5 committed numerous viola-
tions of Section 8(a)(1).6

587 (2005), petition for review denied sub. nom. Local Joint Executive
Board of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). After a
careful review of the record, we find no abuse of discretion in any of
the challenged rulings.
Member Schaumber agrees with the proposition for which Parts
Depot is cited above, though he adheres to his dissent in that case.
4 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondents also contend that some of the judge’s findings are
the product of bias. On careful examination of the judge’s decision and
the entire record, we are satisfied that these contentions are without
merit.
5 We agree with the judge, for the reasons he states, that Respon-
dents Oaktree Capital Management, LLC (Oaktree) and TBR Property,
LLC (TBR) are a single employer, and TBR and Benchmark Hospital-
ity, Inc. (Benchmark) are joint employers. We find it unnecessary to
pass on the judge’s further finding that TBR’s single-employer status
with Oaktree brings Oaktree within the ambit of TBR’s joint-employer
status with Benchmark. The remedy would remain the same. See
Summit Express, Inc., 350 NLRB 592, 596–597 (2007) (each compo-
nent of single employer is jointly and severally responsible for the
remedy for the unfair labor practices of the others); Le Rendezvous
Restaurant, 332 NLRB 336, 337 (2000) (joint employers jointly liable
for the remedial obligations of each other).
6 In affirming the finding that the Respondents violated Sec. 8(a)(1)
by telling union representatives that they were trespassing and had no
right to be on the property (contrary to their contractually-established
right of access), by issuing trespass notices to them, by evicting them
from the resort, and by summoning law enforcement officials to re-
move or assist in removing them, we rely only on the judge’s analysis
of the events of February 14 and 18, 2004. In affirming the finding that
the Respondents unlawfully followed union representatives and eaves-
dropped on their conversations with employees, we rely only on the
judge’s analysis of the events of February 10 and March 3 and 10,
2005. In affirming the finding that the Respondents unlawfully photo-
graphed or videotaped union representatives and employees who are
engaged in peaceful demonstrations, we rely only on the analysis of the
events of March 25, 2004. Finally, in affirming the finding that the
Respondents unlawfully prevented union representatives and employ-
TURTLE BAY RESORTS 1243
We also affirm the judge’s findings that the Respon-
dents violated Section 8(a)(3) and (1) of the Act by dis-
charging employee Mark Feltman, by suspending em-
ployee Timothy Barron, and by warning employee
Jeannie Martinson.
With respect to Feltman, the judge found that the Re-
spondents’ asserted defenses were pretextual and there-
fore did not raise any question of dual motivation under
the Wright Line test.7 We find instead that the Respon-
dents proved the existence of a legitimate reason for dis-
ciplinary action, but that the discharge was nevertheless
unlawful. It is not sufficient for a respondent employer
simply to produce a legitimate basis for the action in
question or to show that the legitimate reason factored
into its decision. T. Steele Construction, Inc., 348 NLRB
1173, 1183 (2006). Rather, it must persuade by a pre-
ponderance of the evidence that it would have taken the

ees from accessing the public beaches adjacent to the resort, we rely
only on the analysis of the events of February 12, 2004. We find it
unnecessary to pass on the judge’s findings that the Respondents com-
mitted similar violations on other dates inasmuch as such findings
would be cumulative and would not materially affect the remedies
ordered in this case. See Strand Theatre of Shreveport Corp., 346
NLRB 523 fn. 2 (2006), enfd. 493 F.3d 515 (5th Cir. 2007).
There are no exceptions to the judge’s findings that the Respondents
violated Sec. 8(a)(1) by maintaining certain overly broad rules in its
“Rules and Regulations” and “Staff Handbook” manuals. There are
also no exceptions to the judge’s dismissal of the 8(a)(1) allegations
concerning two of the rules, an allegation concerning the Respondents’
summoning of the police to the resort on August 6, 2004, to remove
Union Representative Nate Santa Maria, and allegations that the Re-
spondents followed Union Representatives Kimberly Harmon and
Laura Moye and eavesdropped on their conversations with employees
on January 19, 2005.
7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 399–403 (1983). Under Wright Line, the
General Counsel bears the initial burden of showing by a preponder-
ance of the evidence that protected conduct was a substantial or moti-
vating factor in the adverse employment action. If the General Counsel
makes the required initial showing, the burden then shifts to the em-
ployer to show, as an affirmative defense, that it would have taken the
same action even in the absence of the employee’s union activity. See
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
We agree with the judge that the General Counsel met his initial
burden. We note that the judge described this burden in terms of four
evidentiary elements, rather than the Board’s traditional description of
three elements: union or other protected activity by the employee, em-
ployer knowledge of that activity, and antiunion animus on the part of
the employer. Internet Stevensville, 350 NLRB 1349, 1357 (2007).
Member Schaumber observes that the Board and the circuit courts of
appeals have variously described the evidentiary elements of the Gen-
eral Counsel’s initial burden of proof under Wright Line, sometimes
adding as an independent fourth element the necessity for there to be a
causal nexus between the union animus and the adverse employment
action. See, e.g., American Gardens Management Co., 338 NLRB 644,
645 (2002). As stated in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4
(2003), since Wright Line is a causation standard, Member Schaumber
agrees with this addition.
same action in the absence of protected conduct. Car-
penter Technology Corp., 346 NLRB 766, 773 (2006).
We find that the Respondents failed to meet this rebuttal
burden.
According to the Respondents, they discharged Felt-
man because he cursed employee Derek Mendivil when
Mendivil failed to respond to Feltman’s question about
Mendivil’s court appearance on behalf of the Respon-
dents. However, Feltman’s discipline was more severe
than that imposed by the Respondents on at least five
other occasions involving employees who used bad lan-
guage and/or engaged in harassment. Further, Director
of Human Resources Nancy Ramos acknowledged that
employees commonly used similar bad language and that
she would have no staff if employees were disciplined
for such utterances. We therefore conclude that the Re-
spondents failed to prove that they would have dis-
charged Feltman, even absent his participation in union
activities.
We also affirm the judge’s findings, for the reasons he
states, that the Respondents violated Section 8(a)(5) of
the Act by unilaterally changing the access provisions of
the collective-bargaining agreement and by refusing or
unreasonably delaying in providing the Union with re-
quested information relevant to its duties as the employ-
ees’ bargaining representative.
However, we do not agree with the judge’s analysis of
the allegation that the Respondents also violated Section
8(a)(5) on and after January 28, 2005, when they re-
quired union agents to pay for parking, which the Re-
spondents had previously validated, when visiting the
resort for representational purposes.
The judge found that “[t]here was no evidence of the
amount the Respondents require union representatives to
pay for parking,” and that therefore he was “unable to
conclude that the change in parking privileges was a sig-
nificant change that would require the Respondents to
bargain before making the change.” The General Coun-
sel contends in exceptions that the judge erroneously
failed to consider record evidence of three LM-10 forms
filed with the U.S. Department of Labor as well as ex-
planatory testimony by Director of Human Resources
Ramos that she completed these forms and that they re-
flected an independent investigator’s determination of
the monetary amounts of the validated parking that the
Respondents provided the Union’s representatives. The
most recent form, dated January 1, 2005, references park-
ing fees of $20 per day/2 days per week/12 weeks/$40 =
$480; the 2004 and 2003 forms reference parking fees of
$20 per day/2 days per week/52 weeks/$40 per week =
$2080. Therefore, contrary to the judge, there is evi-
dence of the monetary amounts at issue for the parking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
privileges unilaterally revoked by the Respondents. Ac-
cordingly, we shall sever and remand this issue to an
administrative law judge with directions to consider this
evidence and to issue a supplemental decision analyzing
whether the Respondents violated Section 8(a)(5) as al-
leged.
ORDER8
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondents, Oaktree Capital Management, LLC and
TBR Property, LLC, a single employer, d/b/a Turtle Bay
Resorts, and Benchmark Hospitality, Inc., Honolulu,
Hawaii, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
UNITE HERE! Local 5 (the Union), as the exclusive
bargaining representative of their employees, by failing
and refusing to furnish, or by unreasonably delay in fur-
nishing, 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 man-
datory subjects of bargaining.
(c) Maintaining the rules of conduct applicable to em-
ployees that have been found to violate Section 8(a)(1) of
the Act, or similar rules, and that are set forth in para-
graph 5 of the judge’s conclusions of law.
(d) Maintaining overly broad rules that limit employ-
ees’ right to discuss their wages and working conditions.
(e) Maintaining overly broad rules that prohibit em-
ployees from soliciting or distributing literature in non-
work areas and during nonworktime.
(f) Maintaining overly broad rules that prohibit em-
ployees’ presence on Turtle Bay property.
(g) Maintaining overly broad rules that restrict em-
ployees’ 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 prop-

8 We deny the General Counsel’s request to include in the recom-
mended Order a provision requiring the Respondents to notify in writ-
ing the Honolulu police and city and county of Honolulu Office of
Corporation Counsel that the Respondents violated the Act in certain
respects. We find no warrant, in the circumstances of this case, for
requiring the Respondents to destroy any videotape, pictures, negatives,
and other electronic images of union and protected activities. We shall
delete this provision from the Order. We observe that the judge omit-
ted from his notice a make-whole provision for the unlawful suspension
of employee Timothy Barron. We shall add this provision to the notice.
Finally, we shall modify the judge’s remedy to provide the full name of
the Union at its first mention in the Order and notice.
erty contrary to their contractual right to be on the prem-
ises.
(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 prem-
ises.
(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.
(l) Telling union representatives that they are not per-
mitted to collect dues at Turtle Bay contrary to their con-
tractual right of access.
(m) Photographing or videotaping union representa-
tives and employees who are engaged in lawful demon-
strations.
(n) Following union representatives in the Turtle Bay
hotel when the union representatives are engaged in un-
ion activities pursuant to the contractual access provi-
sion.
(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 to engage in Section 7 activities.
(q) Disparaging union representatives and threatening
to discipline employees for talking to union representa-
tives.
(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, re-
straining, 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
judge’s conclusions of law.
(b) Rescind the overly broad rule in their employee
handbook that limits employees’ rights to discuss their
wages and working conditions.
(c) Rescind the overly broad rule in their employee
handbook that prohibits employees from soliciting or
distributing literature in nonwork areas and during non-
worktime.
(d) Rescind the overly broad rule in their employee
handbook that prohibits employees’ presence on Turtle
Bay property.
TURTLE BAY RESORTS 1245
(e) Rescind the rules and regulations in their staff
handbook (Collective-Bargaining Unit Version) and their
handbook of rules and regulations that have been found
to unlawfully infringe on employees’ Section 7 rights.
(f) 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.
(g) Continue in full force and effect the access provi-
sion of the collective-bargaining agreement with the Un-
ion until an agreement is reached or there is an impasse
on all mandatory subjects of bargaining.
(h) 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 equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(i) Make Mark Feltman and Timothy Barron whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(j) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful dis-
charge of Mark Feltman, the unlawful suspension of
Timothy Barron, and the unlawful discipline of Jeannie
Martinson and, within 3 days thereafter, notify the em-
ployees in writing that this has been done and that the
discharge, suspension, and discipline will not be used
against them in any way.
(k) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(l) Within 14 days after service by the Region, post at
their facility in Kahuku, Oahu, Hawaii, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
20, 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 al-

9 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tered, 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.
(m) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have taken to
comply.
IT IS FURTHER ORDERED that the complaint allegation
that the Respondents violated Section 8(a)(5) and (1) of
the Act by ceasing to validate parking for the union rep-
resentatives when they visited the Respondents’ resort to
carry out their union duties is severed from this case and
remanded to an administrative law judge for further ap-
propriate action consistent with this decision.
IT IS FURTHER ORDERED, because the Board has been
advised that Judge Joseph Gontram is deceased, the issue
is remanded to Chief Administrative Law Judge Robert
A. Giannasi, who may designate another administrative
law judge in accordance with Section 102.36 of the
Board’s Rules and Regulations.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision, after
which the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
WE WILL NOT fail and refuse to bargain in good faith
with UNITE HERE! Local 5 (the Union) as the exclusive
bargaining representative of Turtle Bay’s employees by
failing and refusing to furnish, or unreasonably delaying
in furnishing, information requested by the Union that is
relevant to its duties as your bargaining representative.
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 im-
passe on all mandatory subjects of bargaining.
WE WILL NOT maintain the rules of conduct applicable
to employees that have been found to violate Section
8(a)(1) of the Act, or similar rules.
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 nonworktime.
WE WILL NOT maintain overly broad rules that prohibit
employees’ presence on Turtle Bay property.
WE WILL NOT maintain overly broad rules that restrict
employees’ rights to engage in protected concerted activ-
ity.
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 assist in removing union representatives con-
trary to their contractual 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.
WE WILL NOT photograph or videotape union represen-
tatives and employees who are engaged in lawful demon-
strations.
WE WILL NOT follow union representatives in the Tur-
tle Bay resort when the union representatives are en-
gaged in union activities pursuant to the contractual ac-
cess provision.
WE WILL NOT eavesdrop on conversations between un-
ion representatives and employees.
WE WILL NOT prevent union representatives and em-
ployees from going to any public beach adjacent to Tur-
tle Bay’s property to engage in Section 7 activity.
WE WILL NOT disparage union representatives and
threaten to discipline employees for talking to union rep-
resentatives.
WE WILL NOT threaten to close Turtle Bay in retalia-
tion for union and protected activities such as demonstra-
tions and boycotts.
WE WILL NOT discharge, suspend, warn, 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 set forth above.
WE WILL furnish to the Union the information it re-
quested in its letters of April 28, August 30, and Septem-
ber 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 non-
worktime.
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 employees’ Section 7 rights.
WE WILL continue in full force and effect with the Un-
ion access provision of the collective-bargaining agree-
ment until an agreement is reached or there is an impasse
on all mandatory subjects of bargaining.
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 equiva-
lent position, without prejudice to his seniority or any
other rights and 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 make Timothy Barron whole for any loss of
earnings and other benefits resulting from his suspension,
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 Feltman’s unlaw-
ful discharge, Barron’s unlawful suspension, and Jeannie
Martinson’s unlawful warning, and WE WILL, within 3
days thereafter, notify each of them in writing that this
TURTLE BAY RESORTS 1247
has been done and that the discharge, suspension, and
warning will not be used against them in any way.
OAKTREE CAPITAL MANAGEMENT, LLC AND
TBR PROPERTY, LLC, A SINGLE EMPLOYER,
D/B/A TURTLE BAY RESORTS, AND BENCHMARK
HOSPITALITY, INC.
Peter S. Ohr, Esq. and Meredith A. Burns, Esq., for the General
Counsel.
Daniel Berkley, Esq. and Mark S. Posard, Esq. (Gordon &
Rees, LLP), of San Francisco, California, for the Respon-
dents.
David A. Sgan, Esq. (Gill & Zukeran), of Honolulu, Hawaii, for
the Charging Party.
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 sev-
eral times, were filed by UNITE HERE! Local 51 (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 consoli-
dated 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 mo-
tion 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 consoli-
dated complaint and the first amended complaint in this case
listed “TBR Property, LLC” in the caption. (GC Exhs. 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 typographi-

1 The General Counsel amended the caption in his posthearing brief
and asserted that he was amending the caption to reflect the disaffilia-
tion of UNITE HERE! from the AFL–CIO. The General Counsel
should be aware, at this stage of the proceedings, that it is not his pre-
rogative to unilaterally make changes to the caption. A motion should
have been filed requesting permission to change the caption and ex-
plaining 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.
cal error in the caption by listing “TBR Properties, LLC” in-
stead of “TBR Property, LLC.” (GC Exh. 1(eeee).) “TBR Prop-
erty, 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 com-
plaint 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 typographi-
cal error. Moreover, “TBR Property, LLC” was consistently
and correctly named in the complaints’ allegations. The permis-
sion 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 oc-
curred 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 Hos-
pitality, Inc. (Benchmark) are a successor to Hilton Hotels Cor-
poration, Inc., which had operated and managed the property
from 1998 to 2001 under a contract with Oaktree. The com-
plaint 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-bargain-
ing representative of Turtle Bay’s employees; (2) violated Sec-
tion 8(a)(1) of the Act by interfering on numerous occasions
with Turtle Bay’s employees in the exercise of their rights un-
der Section 7 of the Act; and (3) violated Section 8(a)(1) and
(3) of the Act by unlawfully disciplining three employees be-
cause of those employees’ protected and concerted activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondents, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Oaktree Capital Management, LLC (Oaktree) acquired own-
ership and control of Turtle Bay Resort in 2000. This owner-
ship 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
the resort from the Kamehameha Highway is approximately
one-half mile in length and has an attended kiosk close to the
highway. The resort consists of a 487-room hotel, cottages, 2
golf courses, riding stables, several restaurants, and accompa-
nying 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, man-
agement, and business of these Respondent companies. In gen-
eral, 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 $5000,
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 stew-
ards. 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 & 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 Gen-
eral Counsel was forced to develop because of the Respon-
dents’ 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 infor-
mation. 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 mean-
ing of Section 2(2), (6), and (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 Prop-
erty are single employers, and Benchmark is a joint employer
with Oaktree and TBR Property. As noted above, Oaktree con-
trols 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 responsi-
bilities may be traced as follows.
Oaktree purchased Turtle Bay in 2000 from a Japanese cor-
poration. (R. Br. 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 percent) and
AJ Plaza Hawaii, Co., Ltd. (1 percent), a wholly owned sub-
sidiary of AJ Plaza, owns Kuilima. Kuilima is the record owner
of Turtle Bay Resort. TBR Property is a wholly owned subsidi-
ary 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 presi-
dent 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 Bench-
mark participate in labor negotiations at the resort, and Bench-
mark 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 fre-
quently 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
Oaktree is required to approve equipment leases for the re-
sort, and Adelman, Oaktree’s representative at the resort, han-
dles these matters. In one instance, Adelman authorized and
approved an equipment lease signed by TBR Property. Adel-
man 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 applica-
tion on behalf of the Turtle Bay Resort. Turtle Bay is required
to keep Oaktree informed of the resort’s employees and their
salaries.

2 References to the transcript of the hearing are designated as Tr.
TURTLE BAY RESORTS 1249
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 con-
solidated complaints.) The management agreement provides
that Benchmark is responsible for managing and operating the
resort. Benchmark’s vice president of human resources main-
tains that TBR Property is the employer of the resort’s employ-
ees. 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 negotia-
tions on behalf of Turtle Bay through Burt Cabanas, Bench-
mark’s chairman and chief executive officer, and Eileen San-
toli, 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 situ-
ated. It has no management responsibility whatsoever with
respect to daily operations or employment practices.” (R. Br.
175.) The overbearing presence in these relationships is Oak-
tree, 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 deci-
sions on labor matters.
The determination of whether two or more entities are suffi-
ciently 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 func-
tional interrelation of operations, (2) centralized control of la-
bor relations, (3) common management, and (4) common own-
ership or financial control. Radio & Television Broadcast Tech-
nicians Local 1264 v. Broadcast Service of Mobile, 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 of-
ficers 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
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, man-
agers, or principals other than officers, managers, and princi-
pals 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 Prop-
erty and Oaktree.
(3) and (4) Common management and ownership and finan-
cial 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. Oak-
tree owns the owner of Kuilima, which, in turn, owns TBR
Property. Kuilima is the record owner of the Turtle Bay prop-
erty, 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 Prop-
erty, 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. More-
over, 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 of Pennsylvania, 691 F.2d 1117, 1122–1123 (3d Cir.
1982). Accordingly, the Respondents—Benchmark and TBR
Property, together with TBR Property’s single employer, Oak-
tree—are joint employers of the employees at Turtle Bay Re-
sort.
The Respondents contend that Oaktree is not a joint em-
ployer 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 Prop-
erty’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. 178–179.) However, the Respondents’ admis-
sion that TBR Property and Benchmark control the labor relations and
personnel matters at Turtle Bay is sufficient to establish joint-employer
status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
After Oaktree purchased control of the Turtle Bay Resort fa-
cilities, 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 dis-
puted 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 exhib-
ited 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, sec. 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 man-
agement 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.

4 Moreover, the complaint defines the bargaining unit as the Re-
spondents’ employees who perform work at Turtle Bay, and who are
covered under the agreement between Hilton (the Respondents’ prede-
cessor) and the Union. The complaint alleges that this agreement was
extended through November 25, 2003. (GC Exh. 1(zzz).) The Respon-
dents denied the paragraph only because they objected to the General
Counsel’s definition of “Respondents.” (GC Exhs. 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.
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.
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 at-
tempting to define or describe authorized areas for union repre-
sentatives. These witnesses, including Nancy Ramos, the direc-
tor 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 se-
curity guards could be evidence of vague or ambiguous or dif-
fering instructions from Dougher, and/or they could be evi-
dence of a lack of trustworthiness of the witnesses. The evi-
dence, the witnesses’ demeanor, and the circumstances support
the latter conclusion even if Dougher did issue vague or am-
biguous 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 testi-
monial record and exhibits with due regard for logic and prob-
ability, the demeanor of the witnesses, and the teaching of
NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). Many wit-
nesses 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 re-
garding what occurred at meetings or discussions with man-
agement or security personnel at the resort, I have also taken
into account the economic dependence of employees on em-
ployers, with awareness of an employee’s attentiveness to in-
tended 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 conse-
quences of or reasons for such restrictions. It was as if the secu-
rity officers had been instructed or had agreed before the hear-
ing 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 rep-
resentatives were only allowed in the employee cafeteria. (One
wonders how the union representatives were supposed to get to
TURTLE BAY RESORTS 1251
the employee cafeteria.) Sua changed his story on authorized
union access several times. Sua also claimed that union repre-
sentatives 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 load-
ing 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 employ-
ees 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.
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 pro-
duction 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 representa-
tives 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 ulti-
mately resolved by the testimony of Fortin, confirmed at least
in part by Dougher and Ramos. More importantly, the determi-
nation 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, ex-
cept for some of the Respondents’ actions detailed below, in-
cluding 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 rea-
sons, 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 Respon-
dents 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 con-
duct applicable to Turtle Bay employees. The Respondents
deny that they have promulgated or maintained any rules, regu-
lations, 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 ad-
mitted that the “Staff Handbook (Collective-Bargaining Unit
Version)” (GC Exh. 10) was authentic and was in effect at Tur-
tle Bay. The handbook bears the same logo and format as the
rules and regulations. The Respondents presently argue, with-
out citing any authority, that they would be denied due process
if they were required to defend the unfair labor practices al-
leged in the complaint regarding Turtle Bay’s work rules. (R.
Br. 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 Re-
spondents 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 Re-
spondents 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 re-
sult in disciplinary action, including termination.
2. “Being present on company premises at any time
other than the employee’s assigned work shift, unless spe-
cifically authorized by his/her supervisor or picking up
paycheck,” and is misconduct, which could result in disci-
plinary 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 com-
plaint is concerned, the handbook contains the following provi-
sions (GC Exh. 10, pp. 32, 33, 37–38, 40–41):
1. Page 32. “Under no circumstances should staff-
members solicit guests, including requests for autographs,
soliciting employment and other non-resort matters.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
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 advertis-
ing 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 Prop-
erty’ pass.”
5. Pages 40–41. “The following are examples of be-
havior, which violate Turtle Bay Resort policies:”
i. “Presence in the Resort more than 30 minutes be-
fore or after your shift.”
ii. “Walking off the job will be considered volun-
tary termination.”
iii. “Refusing to cooperate during a company in-
vestigation.”
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 em-
ployees 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 negotia-
tions 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 re-
sort. The 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 moni-
tored 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 vegeta-
tion line. This understanding appears to be consistent with Ha-
waii law. See Application of Sanborn, 562 P.2d 771 (Haw.
1977); Hawaii County v. Sotomura, 55 Haw. 176, 517 P.2d 57,
62–63 (1973); 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 Shimabu-
kuro’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 situa-
tion. 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 demonstra-
tion on the public beach on the other side of the resort’s prop-
erty, 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 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 demon-
strators 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 ille-
gal. During this entire encounter, neither the police nor the
TURTLE BAY RESORTS 1253
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 dis-
burse, 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 Re-
spondents and the Union was marked by confrontation and
unpleasantness. The Union resorted to staging a rally to publi-
cize its predicament, viz, the lack of a contract. And the Re-
spondents 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 demonstra-
tors 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 no-
tice 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 cafe-
teria and told Marsh that she was not allowed on the resort’s
property because she was trespassing and she had already re-
ceived a verbal trespass notice on February 12. The security
department notified the Honolulu police department and re-
quested 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 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 rep-
resentative from the resort property for a period of 1 year. In-
deed, the notices stated that the recipient was not permitted to
return to the resort for 1 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 tres-
pass 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 unlaw-
fully enters commercial premises within 1 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 initi-
ated 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 em-
ployee 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
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 al-
leged failure to sign the register when he gave trespass notices

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 de-
scribing 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
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 Re-
spondents’ attempt to criminalize their behavior by summoning
the Honolulu police department.
Honolulu police officer Dwight Lee arrived shortly after se-
curity officer Lolotai issued the trespass notices to Marsh and
Shimabukuro. Police officer Lee entered the employee cafete-
ria. 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 secu-
rity 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 jurisdic-
tion of the National Labor Relations Board (the 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 issu-
ing trespass notices to the union representatives was proper,
and he admits having many discussions about this issue. Never-
theless, he and his security officers, pursuant to his instructions,
continued to issue numerous trespass notices to union represen-
tatives.
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 employ-
ees. Most of these people were union members from other loca-
tions, although several resort employees were members of the
group. The purpose of the demonstration was to express sup-
port 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 Respon-
dents 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 en-
trance 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 demon-
strators.
When the group entered the resort’s property, the security of-
ficers gave them hand-drawn maps of the resort. The group
walked down the access road and met with a group of approxi-
mately 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 de-
partment, and there was a police officer present in the hotel’s
lobby when the group entered. There were approximately 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 demon-
strators 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 4 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 any-
one 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 per-
son 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 affi-
davit he signed before the hearing, Dougher said he was un-
aware 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
TURTLE BAY RESORTS 1255
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 par-
ticularly 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 ele-
vators 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 em-
ployer’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 fur-
ther evidence of his lack of credibility.
Dougher testified that on other occasions union representa-
tives 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 testi-
mony 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 fol-
lowed 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 com-
ing 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 threaten-
ing 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 au-
thoritative 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.
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 dem-
onstrators 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 en-
gage 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 represen-
tatives were not present. Until the union representative ap-
peared, the assigned security guard was considered to be “float-
ing.” (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 employ-
ees. 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 inci-
dents. (Tr. 3191.) Nagy failed to explain how shadowing union
representatives would prevent another rally. Indeed, further
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
rallies took place on the resort property. Leeann Duque, the
assistant director of security at Turtle Bay, stated that monitor-
ing 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. More-
over, Duque’s explanation fails to explain why the Respondents
did not prevent the union representatives from going into unau-
thorized areas rather than following the union representatives
wherever they went in the resort.
Neither the union nor the demonstrators engaged in any vio-
lence 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 employ-
ees’ 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 con-
tained no threats and the rally was peaceful.
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 re-
sort. The purpose of the rally was, again, to express the partici-
pants’ frustrations at the failure to secure a contract. The dem-
onstrators 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 addi-
tion, 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 video-
taped. 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 wit-
ness’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 es-
corted 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 mem-
bers 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.
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 em-
ployee cafeteria where Marsh was located. Marsh was convers-
ing with several employees on employment matters. Dougher
then arrived with two Honolulu police officers. The police offi-
cers told Marsh and Shimabukuro that they had to leave be-
cause 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 1 year. After
the trespass notices were delivered, a security guard took pic-
tures of Marsh and Shimabukuro. They were then escorted by
security guards from the employee cafeteria, and out to the
parking lot.
TURTLE BAY RESORTS 1257
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 Respon-
dents 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 prop-
erty 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. 212.) Ramos’s letter to the Union highlights the specious-
ness 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 Busi-
ness 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.
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 ad-
vised you that you would not be allowed on property to
collect dues when we met on October 21, 2004. Your re-
sponse 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 col-
lecting on property.
Thank you for your understanding.
There is no reference in the letters to the manner of dues col-
lection. 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 pre-
vented 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 em-
ployees 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 member-
ship, 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 collec-
tion 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 an-
other 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 per-
sonal identification from Decoite and Baijo, and they told De-
coite and Baijo a background check would be done on them.
The police officers left Dougher’s office with the identifica-
tions, 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 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 miscellane-
ous public report. Decoite and Baijo then left the resort. How-
ever, 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 depart-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
ment. They went to the employee cafeteria and talked to em-
ployees 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 ac-
company him to his vehicle. Marsh declined, preferring to re-
main 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 re-
place 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 de-
sired on Turtle Bay Resort (“TBR”) premises and that you are
not to return to said premises for purposes of union dues col-
lection or solicitation or for any activities that are disruptive or
interfere with the normal conduct of TBR’s business, for a pe-
riod 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 sub-
ject 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 un-
ion representatives used this new form. Dougher told her that
the police officer was present to witness her receipt of the tres-
pass 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 dis-
rupted any employees or interfered with the work of any em-
ployees on June 7.
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 em-
ployees. 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 pre-
pared 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 tres-
pass 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. 92.) The trespass notice, which was on a form similar to the
trespass notice issued to Marsh on June 7, contains an addi-
tional 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 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 through-
out 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 em-
ployee cafeteria. The security guards offered conflicting rea-
sons at the hearing for following the union representatives
throughout the resort, including protecting the facility, protect-
ing the employees, and protecting the union representatives.
None of these alleged reasons withstands analysis or is sup-
ported 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 representa-
tives. Moreover, it is uncertain whether the security guards,
other than Dougher, knew the reason why they were ordered to
shadow the union representatives.
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.
TURTLE BAY RESORTS 1259
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 an-
other 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 tres-
pass 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 cafete-
ria 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 no-
tice 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 sur-
prising 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 Hono-
lulu 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.
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 to December 2002 and May to October 2004. During the
latter period, Turtle Bay came under his responsibility. He vis-
ited the property approximately two to three 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 em-
ployee cafeteria. He spoke to about 10–15 people in the cafete-
ria. 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 pro-
posed to Nauta that they ask the workers. This was not done,
and Nauta continued to follow Santa Maria closely to the eleva-
tors. Santa Maria admits that he was becoming annoyed at
Nauta, and he asked Nauta why he was “being such an ass-
hole.” 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 con-
tinued 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 sur-
rounded 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 worksta-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
tions. 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 refused to leave, saying the con-
tract 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 po-
lice 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 oc-
curred 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 6 years.
During that time, he has spoken to Marsh and told her to leave
the kitchen approximately 30 times for talking to kitchen work-
ers. 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 disturb-
ing 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 anti-
union animus as evidenced by, or from, his many complaints
about union representatives’ activities. And his call to the secu-
rity 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 ele-
vator 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 fol-
lowed 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
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 hap-
pened. 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 in-
forming 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 ele-
vator. 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 ex-
pressions 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 work-
place. Indeed, Ramos acknowledges that such greetings are
allowed. The question is, what additional conversation or dis-
turbance, if any, is allowed before it becomes disruptive. Rather
than attempt to define the meaning of disturbance or interrup-
tion, 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
TURTLE BAY RESORTS 1261
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 sec-
onds with each worker conveying this information. The addi-
tional 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 Restau-
rant 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 re-
member. 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 distur-
bance 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 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 Re-
spondents, in the employee cafeteria and in the presence of
employees, unlawfully ordered Marsh to stop collecting dues.
(Complaint, par. 17(d).) Neither Marsh nor Shimabukuro testi-
fied about this event. Dougher testified that Marsh and Shima-
bukuro 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 col-
lecting 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 dis-
ruptive. 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 rea-
son Dougher was attempting to prohibit Marsh and Shimabu-
kuro 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 Sep-
tember 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 para-
graph (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 em-
ployees, 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 contin-
ued to decline, soon there would be nothing to work with.
15. January 19, 2005
Kimberly Harmon began working as a business agent or or-
ganizer 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 mid-
January. In a typical day at Turtle Bay, she enters the resort
from the loading dock and goes to the security dispatch win-
dow. She is handed a folder on which she writes the time of day
and where she is going, and she signs her name. She gives the
folder back to the security dispatch guard, but not before a se-
curity 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 bargain-
ing 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 wait-
ress greeted Moye. Dougher told the waitress, “You know bet-
ter 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
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 1 or 2 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 pur-
pose 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 dis-
comfort 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 en-
tered and pushed the button to go up. Dougher then stood at the
threshold of the elevator to 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 prop-
erty, 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 busi-
ness to park in the parking lot of the resort without charge. The
Respondents were aware of this practice because a resort em-
ployee 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 re-
sources 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 pro-
vide free parking to the public to use the beach. (R. Br. 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’ at-
torney, sent a letter to the Union stating that union representa-
tives 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 repre-
sentatives 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 mid-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 fol-
lowed 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 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 representa-
tive.
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 no-
ticed two security guards were following about 10 feet behind
them and were observing them. Trellis ended the conversation
TURTLE BAY RESORTS 1263
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 regard-
ing 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’ 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. In-
stead, 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’
car, with Joshua close behind. Dela Cruz placed his bag in his
car and, as inconspicuously as he was able, removed the peti-
tions from the bag and gave them to Harmon, all the while be-
ing monitored by Joshua.
19. March 5, 2005
On March 5, Harmon went to Turtle Bay and was perform-
ing her regular duties. Harmon was walking through the Palm
Terrace kitchen, and John Dutson, the new manager of the res-
taurant, 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 sit-
ting there waiting for more employees to arrive, Dougher en-
tered. 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 re-
peated several times that he was going to discipline any em-
ployee 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 cafete-
ria throughout Dougher’s tirade.
Dougher left the cafeteria, but he returned after several min-
utes. 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 re-
sort’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 Restau-
rant. She has been employed at Turtle Bay for 25 years. On
May 21, Turtle Bay employees participated in a 1-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 jok-
ing 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 con-
tact with or toward anyone.
Leslie Toy, a waitress who had been employed at the resort
for approximately 6 months, was in a corner of the kitchen
setting up trays during this conversation, and she overheard
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
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.
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 sug-
gested 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 writ-
ten statement.
On May 28, approximately 1 week after Martinson’s refer-
ence to “scabs” in her conversation with the cook, Ramos is-
sued a memorandum to all Turtle Bay employees entitled “Em-
ployee 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 “inap-
propriate, disrespectful, and unjustified behavior towards a
fellow employee by calling her a ‘scab.’” The form also con-
tains 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 1-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 timeclock near the security dis-
patch 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 describ-
ing 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
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 uncomfort-
able that he immediately reported Barron’s comments to An-
thony Hite, a security guard. Baeseman continued his light-
hearted 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 exaggera-
tion, similar to the tendencies displayed by other Turtle Bay
employees, such as Sonia Evans (see above), and Derek Men-
divil (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 admit-
ted 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 misrepre-
sentation.
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 techni-
cal 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
TURTLE BAY RESORTS 1265
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 dis-
pute with the Union, the Respondents developed a climate at
Turtle Bay that encouraged employees to report other employ-
ees who said anything against Turtle Bay. This climate exacer-
bated 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 timeclock 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.
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” be-
cause Barron was swiping out wearing his regular clothes. Tur-
tle 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 an-
other 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 Bae-
seman a scab in public. (R. Exh. 13.)
On June 10, Barron came to work, and as he entered the ho-
tel, 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. Accord-
ingly, 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 sus-
pended 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. In-
deed, under these circumstances, the explanation was ludicrous.
The question is what effect this false explanation has on Bar-
ron’s credibility.
Barron’s encounter with Baeseman at the security dispatch
window occurred about a week after Ramos’s May 28 memo-
randum 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 Respon-
dents 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 prop-
erty; 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 sup-
porter 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.
3. July 1, 2005
Mark Feltman was a first-class maintenance employee at
Turtle Bay from September 2004 to July 1, 2005. On Novem-
ber 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 agree-
ment. 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 com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
mented that Feltman was wearing a union button. Ramos said,
“I thought you signed the antiboycott petition that Roger Cor-
puz 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 re-
sources 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 walk-
ing 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 picket-
ers. At one point during that day, Feltman was having a conver-
sation 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 working for Turtle Bay in 2004. After Men-
divil 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 ap-
proached 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 un-
ion representatives made no statements to or gestures toward
Mendivil. Indeed, Mendivil told Keliikuli that the union repre-
sentatives 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 post-
ings. Feltman had just exited the men’s room on the lower level

6 The word fuck is designated throughout this decision as f—, and,
as a present participle, f—ing.
of the hotel and was returning to the maintenance shop. He
passed behind Mendivil who was reading notices on the bulle-
tin board. As Feltman was walking by Mendivil, he greeted
Mendivil by saying, “Howz it,” a local expression meaning
how are you. Mendivil said, “[H]i.” 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 contin-
ued walking back toward the maintenance shop. Feltman states
that after Mendivil shrugged his shoulders, but did not other-
wise 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 direc-
tor of housekeeping. Cano called Dougher at the security office
and reported what Mendivil had told her. Cano then told Men-
divil 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. Mendi-
vil 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.
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 work-
place violence.
Dougher explained that the Respondents’ zero-tolerance pol-
icy 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
TURTLE BAY RESORTS 1267
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 harass-
ment, retaliation, or workplace violence, if anything, depends
on the facts of each case.
There is no evidence that Mendivil was actually upset or agi-
tated 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 com-
pleted 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 rec-
ommended 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, Men-
divil 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 en-
counter 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.
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 ter-
minating Feltman, the first question is whether Feltman actually
called Mendivil a “f—ing ass.” The preponderance of the evi-
dence 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 1 week because
of his “injury.” The Respondents have not objected to Mendi-
vil’s overblown reactions. Indeed, the Respondents have sup-
ported 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 authorita-
tive and authority figures. Thus, Mendivil did not even com-
plete 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 re-
port had been lost, and Ramos requested Cano to prepare an-
other 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 exami-
nation of the two reports shows that the first 1-1/2 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
in this tense and vulnerable state brought on by the Respon-
dents, 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 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 encoun-
ter 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 coinci-
dence between the events, with Mendivil being called the exact
same name at different times by different persons, strains cre-
dulity. 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 rea-
sons. In light of Mendivil’s impressionable nature, and the sug-
gestive 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 Mendi-
vil. 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 wit-
ness.
Considering all of the circumstances, I conclude that the fol-
lowing 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 any-
one 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. Some-
time after talking with Cano and Dougher, but not before com-
pleting his own report of the incident, Mendivil became con-
vinced 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 man-
agers 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 curs-
ing between employees by either imposing no discipline
(Stone) or imposing discipline that is less severe than termina-
tion. For example, Geronimo Pinacate was suspended for re-
peatedly using f— to a coworker, and for continuing to use
such profanity after he was told to stop. Also, on May 21, 2005,
Kaleo Delosantos, while crossing the picket line, told an em-
ployee 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 explana-
tion of why Ramos otherwise was not a credible witness at the
present hearing. Ramos was the Respondents’ designated repre-
sentative to assist the Respondents’ attorneys during the hear-
ing. Accordingly, Ramos was permitted to remain in the hear-
ing 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):
[T] he reason is, is that by discussing it [testimony in the hear-
ing] 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 conform-
ing 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 wit-
nesses 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
TURTLE BAY RESORTS 1269
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 2
weeks in July 2005 and 2 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 Bar-
ron 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 re-
view 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 tran-
scripts 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, indi-
cating that Ramos knew she had violated the order against dis-
closure 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 prohib-
iting the disclosure of testimony to prospective witnesses. But it
is another matter when the Respondents’ designated representa-
tive—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 Men-
divil, 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 Men-
divil’s refusal to answer him as anything else. Indeed, the al-
leged epithet immediately followed Mendivil’s refusal to an-
swer, not the reference to federal court. Moreover, Feltman
made no reference to Mendivil’s status as a witness in the Fed-
eral 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 guess-
work in labeling the epithet “f—ing ass” a threat. Calling some-
one 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 Respon-
dents have demonstrated that they recognize a threat when it
occurs, such as when Baeseman told a coworker, “This is bull-
shit and you better back off.” Yet, for this threat, the Respon-
dents did not discharge Baeseman.
E. The Union’s Requests for Information
On April 28, 2004, the Union sent a letter to the Respon-
dents, 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 con-
dominiums. 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 infor-
mation until September 14 and 15, 2005.
On September 13, 2004, the Union sent a letter to the Re-
spondents requesting monthly gross earnings paid to bargaining
unit members. Ramos testified that she directed the “pay mas-
ter” 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 in-
formation 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 bargain-
ing representative for the proper performance of its duties.”
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
These duties encompass the union’s responsibilities as bargain-
ing 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 fu-
ture contract. The employer’s obligation also extends to infor-
mation 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 stan-
dard.” NLRB v. Acme Industrial Co, 385 U.S. at 437. Accord-
ingly, information that is “potentially relevant and will be of
use to the union in fulfilling its responsibilities as the employ-
ees’ exclusive-bargaining representative” must be produced.
Pennsylvania Power 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 bargain-
ing unit. In keeping with the liberal standard of relevance, this
burden is not a heavy one and only requires the union to dem-
onstrate 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) (“Al-
though 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 perform-
ance 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 re-
quests 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 imme-
diately provided some of the information that the Union re-
quested 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 re-
quested 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 negotia-
tions during the entire period that the Unions’ information re-
quests 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 Re-
spondents’ defense also fails to explain or account for its delay
in providing the information from approximately May to Sep-
tember 2005. An unreasonable delay in providing information
is as much of a violation of Section 8(a)(5) of the Act as a re-
fusal to furnish the information at all. Amersig Graphics, Inc.,
334 NLRB 880, 885 (2001); Valley Inventory Service, 295
NLRB 1163 (1989); Newcor Bay City Division, 345 NLRB 229
(2005). Under the circumstances, the Respondents’ September
14 and 15, 2005 answers to the Union’s April 28 and Septem-
ber 30, 2004 requests for information were untimely and a vio-
lation 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 informa-
tion 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, pages 32; rules and regulations, page 2. In de-
termining whether the maintenance of certain work rules vio-
lates 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 Learning Centers, 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 409 (2005). “In
determining whether a challenged rule is lawful, we will give
the rule a reasonable reading. That is, we will refrain from read-
ing particular phrases in isolation or presuming improper inter-
ference with employee rights.” Guardsmark, LLC, 344 NLRB
809 (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 circum-
stances should staffmembers solicit guests, including requests
for autographs, soliciting employment and other non-resort
matters.” 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 instruc-
tion 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
TURTLE BAY RESORTS 1271
rights. However, the prohibition must be read with its modify-
ing phrase, which identifies the particular solicitations that are
being prohibited. Thus, the types of solicitations being pro-
scribed 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 Sec-
tion 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 recrea-
tion 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 943 (2005)
(“We agree with the judge that the rule’s unqualified prohibi-
tion of the release of ‘any information’ regarding ‘its partners’
could be reasonably construed by employees to restrict discus-
sion of wages and other terms and conditions of employ-
ment.”). However, the charged sentence is preceded by exam-
ples 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, restau-
rant, 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, supra at 811. 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 rea-
sonably 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 pub-
lic or work areas in the resort. The Respondents have offered
no business justification for their maintenance of this rule. (In-
deed, the Respondents have offered no business justification(s)
for any of their employee rules. See R. Br. 218–219.) The rule
infringes on employees’ Section 7 rights and is unlawful under
Section 8(a)(1) of the Act.
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 & Nursing,
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, page 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
staff member 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 res-
taurant 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 indiscrimi-
nately 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 enter-
tainment 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 em-
ployee 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 entertain-
ment, and it prohibits visits by such employees to the entire
resort, not just particular parts of the resort. A reasonable em-
ployee 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 activi-
ties on an employee’s free time and in nonwork areas is unlaw-
ful. Teletech Holdings, Inc., 333 NLRB 402, 403 (2001). Ac-
cordingly, 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
County Medical Center, 222 NLRB 1089 (1976). The present
rule denies off-duty 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. Accord-
ingly, this rule violates Section 8(a)(1) of the Act.
5. Handbook, pages 40–41; rules and regulations, page 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,
supra. 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 (D.C. Cir.
2003), after remand 343 NLRB 1281 (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 em-
ployees’ “[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 1283–1284 (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 unlaw-
fully restricts employees’ Section 7 rights, and violates Section
8(a)(1) of the Act.
(c) An employer’s rule that prohibits employees from walk-
ing 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 volun-
tary termination.” Accordingly, the Respondents’ rule is over-
broad 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 vio-
lates the longstanding principle, established in Johnnie’s Poul-
try, that employees may not be subjected to employer interro-
gations, relating to Section 7 activity, that reasonably tend to
coerce them to make statements adverse to their Section 7 in-
terests, 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 investi-
gation is ‘a clear violation of Section 8(a)(1) of the Act.
The Respondents’ rule provides that a violation of Turtle
Bay policies includes “[r]efusing to cooperate during a com-
pany 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 timebarred 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 promulgat-
ing 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 accord-
ingly, 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 enforce-
ment 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.
TURTLE BAY RESORTS 1273
C. Restricting the Union’s Access to Turtle Bay and
Prohibiting the Collection of Dues—Complaint
Paragraphs 11, 12, 16, 17, 18, 21, and 22
In Frontier Hotel & Casino, 309 NLRB 761 (1992), enfd.
sub nom. NLRB v. Unbelievable, Inc., 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 repre-
sentatives to visit Frontier’s property “to see that this Agree-
ment is being enforced and to collect union dues, assessments
and initiation fees, provided that such visits by Union represen-
tatives 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 al-
lowed purposes for the Union’s visits to the hotel, the access
provision in Frontier Hotel & Casino is, if anything, more re-
strictive than the access provision in the present case.
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 em-
ployees 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 viola-
tion 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 Respon-
dents told union representatives, who were performing their
duties at Turtle Bay, that the union representatives were tres-
passing 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 un-
ion 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 investi-
gate 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 rep-
resentatives 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 represen-
tatives in coming to Turtle Bay, despite the fact that the union
representatives came to Turtle Bay pursuant to the access pro-
vision 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, su-
pra, 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 repre-
sentative. 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 ar-
rived at the resort, they assisted in evicting the union represen-
tatives 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 occa-
sions, and in spite of the Respondents’ issuance of numerous
trespass notices to Marsh and Shimabukuro, there is no evi-

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
dence that the Respondents ever pursued the “trespasses” any
further in the criminal process, such as asking the district attor-
ney to issue arrest warrants or to prosecute the cases. This fail-
ure 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. Sum-
moning 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 disrup-
tions in the workplace. The remaining question is whether such
actions by the Respondents are permitted when the union repre-
sentative 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
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 work-
ers. 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 dis-
turbing the workers. Accordingly, I will recommend that this
charge (complaint par. 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 bar-
gaining without giving the union prior notice and an opportu-
nity 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, Inc., 307
NLRB 605 (1992), enfd. mem. 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 bar-
gain 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 con-
tractual 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 collec-
tive-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 tres-
pass, bringing the police onto the property to help the Respon-
dents 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 Re-
spondents deprived employees of their contractually granted
access to their bargaining representative. In addition, the evic-
tions and interference constituted a unilateral change of a mate-
rial 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 mat-
ter 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 prop-
erty because the Union agents are allowed reasonable ‘non-
trespassory means to communicate their message.’” (R. Br.
206–207; emphasis in original).) Without regard to the hyper-
bole, 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 gov-
erns its relations with the Union, and if so, whether the Re-
spondents’ actions are lawful.
The Respondents cite Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992), and NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956),
TURTLE BAY RESORTS 1275
for the proposition that an employer may lawfully restrict non-
employees, 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 Re-
sort. 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 re-
strict 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 po-
lice 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 con-
tractual access provision. Indeed, Marsh was present in the
employee cafeteria on the day of the rally, but she did not par-
ticipate 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 rep-
resentatives 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 inter-
fered with Turtle Bay’s business, let alone its normal conduct
of business. There is no credible evidence that the union repre-
sentatives 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 inter-
fered 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 demon-
stration that had no connection with the contractual access pro-
vision.
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 re-
signed from the Union, she has composed or distributed anti-
union flyers at Turtle Bay more than 10 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 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 opposi-
tion to the boycott, and he has been allowed by the Respon-
dents 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 Cor-
puz 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 employ-
ees 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 Respon-
dents 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, nei-
ther 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 is-
sued to Marsh and Shimabukuro on May 4 were based on their
actions in the March 25 rally. However, Marsh did not partici-
pate 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 in-
stances,8 the Union did not breach the access provision of the
agreement.

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 Respon-
dents’ treatment of Marsh on January 27 displayed more than their
antiunion animus, although it is unnecessary to characterize additional
aspects of that treatment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
Collecting dues from members is one of the duties of the Un-
ion, and the Respondents do not contend otherwise. Accord-
ingly, 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 Respon-
dents 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 unilat-
erally imposed this change and this restriction on the Union. By
doing so, the Respondents violated Section 8(a)(5) and (1) of
the Act.
In Venetian Casino Resort, LLC, 345 NLRB 1061 (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 be-
cause 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 interfer-
ing with the demonstration.
On February 12, 2004, the Respondents blocked a rally, con-
sisting of outside union supporters and employees of the resort,
from going onto the Bay View Beach. The supporters and em-
ployees 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 Re-
spondents stopped them from going onto the beach. The Re-
spondents 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 demonstrat-
ing support for the Union in its ongoing contract negotiations
with the Respondents. Accordingly, the demonstrators were
engaged in protected activity. They were conducting this pro-
tected activity on public grounds. The Respondents summoned
the police to evict the demonstrators, and the Respondents oth-
erwise interfered with the demonstrators. Accordingly, the Re-
spondents 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 bull-
horns 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 dem-
onstrators 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 Febru-
ary 12. (R. Br. 193.) But, the complaint does not allege that
unlawful surveillance occurred on February 12. Accordingly,
and considering all the circumstances, I conclude that the Re-
spondents no longer dispute that they unlawfully interfered
with the demonstrators on February 12, other than by surveil-
lance. In any event, and without regard to a waiver or conces-
sion by the Respondents, their actions on February 12 in sum-
moning the police, preventing the demonstrators from going
onto a public beach, and evicting the demonstrators, as dis-
cussed and explained above, violate Section 8(a)(1) of the Act.
D. Surveillance—Complaint Paragraphs 13, 14, 15,
19, and 20
In National Steel & Shipbuilding Co., 324 NLRB 499
(1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998), the Board set
forth the principles applicable to charges of surveillance:
[T]he fundamental principles governing employer surveil-
lance 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 prop-
erty does not constitute unlawful surveillance. Photographing
and videotaping such activity clearly constitute more than
mere observation, however, because such pictorial record-
keeping tends to create fear among employees of future repri-
sals. The Board in Woolworth reaffirmed the principle that
photographing in the mere belief that something might hap-
pen does not justify the employer’s conduct when balanced
against the tendency of that conduct to interfere with employ-
ees’ 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 justifica-
tion for its resort to anticipatory photographing.” [Citations
omitted.]
On March 25, 2004, security guards were posted at the en-
trance 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 indica-
tions of violence from the group. Moreover, there was no his-
tory or experience of violence with union rallies. The Respon-
dents 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 partici-
pants nor have the Respondents provided a solid justification
for its videotaping of the demonstrators before and as they en-
TURTLE BAY RESORTS 1277
tered the resort grounds. Accordingly, the Respondents violated
Section 8(a)(1) of the Act when they videotaped the rally par-
ticipants on March 25 as the demonstrators gathered in front of
Turtle Bay and entered the resort grounds.
The General Counsel contends that Dougher unlawfully en-
gaged in videotaping the March 25 rally participants while they
were demonstrating on the Kawela Beach. (GC Br. 91–92; GC
Exh. 51.) However, the complaint does not allege this event.
(See complaint par. 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 Re-
spondents with unlawful surveillance by videotaping the dem-
onstrators on the Kawela Beach, Dougher’s apparent videotap-
ing of the group on the beach will not be considered.
On April 2, Dougher appeared to videotape rally partici-
pants, 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 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 re-
sort. 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 an-
ticipate 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 li-
cense 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 distin-
guish its surveillance charges and failed to show that TBR en-
gaged in any illegal surveillance.” (R. Br. 202.) This argument
is rejected. The credible, virtually unimpeached, evidence dem-
onstrates that the Respondents videotaped, or appeared to
videotape, the rallies.9 Under all of the circumstances, these

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
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 Ware-
house of Arizona, 328 NLRB 1034, 1047–1048 (1999), should
be considered in determining whether the circumstances sur-
rounding the Respondents’ apparent videotaping on April 2 and
17 are coercive. These factors are:
(1) Whether the photographing occurred in the context of se-
rious 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 repri-
sal.
(5) Whether the party photographing the activity had a “le-
gitimate” 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 legiti-
mate or proper justification for the videotaping or for appearing
to videotape. Accordingly, the five Randell factors demon-
strate, 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 video-
tape 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 demonstra-
tors nor have their witnesses admitted videotaping. This posi-
tion, that the Respondents only appeared to videotape the dem-
onstrators, 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 wher-
ever 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
Act when security guard Hanohano followed Marsh and fol-
lowed her into the employee cafeteria as she talked to employ-
ees.
The Respondents continued to follow Marsh whenever she
came to Turtle Bay. The Respondents contend that “[t]his ‘fol-
lowing’ 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 justi-
fied so that TBR employees will not be disrupted from their
work; justified so that guests will not be intimidated or inter-
fered with; and justified so that the TBR can maintain the safety
and security of the premises.” (R. Br. 203–204.) This argument
is rejected, factually and legally, both for the Respondents’
following of Marsh on June 11 and for the Respondents’ fol-
lowing 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 observa-
tion.” 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 em-
ployees 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 Trel-
lis, 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 em-
ployment 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 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’ car. The security guard followed
them, causing Dela Cruz to shield his action of giving the peti-
tions to Harmon.
Like their shadowing of Marsh, the security guards’ shadow-
ing of Harmon is “activity [that] clearly constitute[s] more than
mere observation.” The surveillance would likely and reasona-
bly inhibit employees from talking to Harmon, and would in-
still fear in employees if they did talk to Harmon. Indeed, the
employees displayed this fear during the surveillance. The Re-
spondents have provided no credible or reasonable basis for this
surveillance. On February 10 and March 3 and 10, 2005, the
Respondents unlawfully surveilled Harmon and their employ-
ees while Harmon and the employees were engaged in pro-
tected 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 introduc-
tions 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 surveil-
lance, similar to the surveillance of Marsh and Harmon de-
scribed above, I conclude that the Respondents had a reason-
able 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 de-
gree of vituperative speech in the heat of labor relations. In-
deed, ‘[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 95 (2004). Flip and in-
temperate remarks that are mere expressions of personal opin-
ion 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 101, 107 (2005). In addition, “the standard for determin-
ing whether a statement violates Section 8(a)(1) is an objective
one that considers whether the statement has a reasonable ten-
dency 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 Trailmo-
bile Trailer, LLC, supra (“Here, the comments of [the Respon-
dent’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.
In determining whether Dougher’s statements have a reason-
able 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,
TURTLE BAY RESORTS 1279
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 objec-
tive 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 Re-
spondents unlawfully threatened to close Turtle Bay in retalia-
tion for its employees’ protected, union activities. The threat is
contained in Butt’s October 22, 2004 memorandum to all em-
ployees. 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 fac-
tors, or any other facts that could make the threat even appear
as a prediction based on factors beyond the Respondents’ con-
trol.
In determining whether an employer’s statement is an unlaw-
ful 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 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 vot-
ing 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 pro-
gress, even if the Board would now hold that such statements
do not violate Section 8, is much different from telling employ-
ees 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 viola-
tions 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 576 (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 em-
ployees. 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 com-
pany 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 activi-
ties.
In Butts’ memorandum, distributed to all employees, the Re-
spondents 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 through-
out the period involved in this case. Accordingly, the Respon-
dents’ duty “encompasses a duty to refrain from implementa-
tion 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
proscription against unilateral action applies not only to manda-
tory bargaining subjects that were specifically covered in the
expired contract, but also to ‘an activity which has been ‘satis-
factorily 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 Re-
spondents 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 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 condi-
tion 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 obli-
gated 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 bargain-
ing. 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 Janu-
ary 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 uni-
laterally 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 representa-
tive. Section 302 of the LMRA was enacted to prohibit “cor-
ruption of collective bargaining through bribery of employee
representatives by employers [and] with extortion by employee
representatives.” Arroyo v. U.S., 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. Machinists Local 964 v. BF Goodrich Aero-
space Aerostructures Group, 387 F.3d 1046 (9th Cir. 2004).
Turtle Bay’s previous practice of allowing union representa-
tives to park at the resort without charge when the representa-
tives 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. More-
over, 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.
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 estab-
lished 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 al-
though it is not determinative of the question, it is apparent that
the motivation for the Respondents’ change in parking privi-
leges 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 220
(2005), the employer, who had two parking lots adjacent to its
facility, closed one of the parking lots to most employees be-
cause 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. How-
ever, this position ignores the requirement that such changes be
significant. There was no evidence of the amount the Respon-
TURTLE BAY RESORTS 1281
dents 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 one-half-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 fre-
quently 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 re-
quire the Respondents to bargain before making the change.
Accordingly, I will recommend that this allegation be dis-
missed.
H. Discipline of Jeannie Martinson—Complaint
Paragraph 26
In Nor-Cal Beverage Co., 330 NLRB 610 (2000), the em-
ployer 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 violat-
ing the employer’s no-harassment policy. Unlike the present
case, the written discipline issued to the employee did not spe-
cifically 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 Guards Local 114,
83 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 indefensi-
ble 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 Local 496 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 em-
ployee 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 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, supra. 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 nonse-
riousness when she made her remark removes the statement
from the protection of the Act. I conclude, under these circum-
stances, 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 consid-
ered. 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 em-
ployee 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. Simi-
larly, 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 say-
ing this. She did not use profanity, she did not threaten vio-
lence, 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 argu-
ment that they may lawfully discipline Martinson for using the
word “scab.” The most recent of the cases cited by the Re-
spondents 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 disciplin-
ing 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 be-
ing accompanied by violence or threats or physical gestures,
and used in the course of protected activity, may not be sanc-
tioned. 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 circum-
stances because the employer’s motive is not in issue. Neff-
Perkins Co., 315 NLRB 1229 fn. 2 (1994). The Respondents
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
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 pro-
tected activity when she said to the cook, “Oh, looks like we
are working with a bunch of scabs.” The Respondents disci-
plined 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 vio-
lence 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, pro-
tected discussion between two coworkers who were on oppos-
ing sides of the labor dispute then occurring at Turtle Bay.
Under Nor-Cal Beverage Co., supra, an employer violates
Section 8(a)(1) and (3) of the Act when it disciplines an em-
ployee 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. 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 credi-
ble evidence to support this contention, a contention that is also
contradicted by Baeseman’s demeanor in describing the inci-
dent. 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 Baese-
man were disruptive and violated the Respondents’ alleged
zero-tolerance policy on harassment. However, the Respon-
dents did not discipline Barron because he had disrupted the
workplace or had violated the policy on harassment. The Re-
spondents 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 em-
ployee’s exercise of either right can be justified by an asser-
tion that language used by the employee in the course of exer-
cising 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 punish-
ing 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.
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 dis-
charge 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 Manage-
ment Co., 338 NLRB 644 (2002).
If the General Counsel satisfies his initial burden under
Wright Line, the burden then shifts to the employer, in the na-
ture of an affirmative defense, to demonstrate that the same
action would have taken place even in the absence of the pro-
tected 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 ac-
tivity. T & J Trucking Co., 316 NLRB 771 (1995). Neverthe-
less, 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 Respon-
dents. 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 Respon-
dents 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 ac-

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 em-
ployee may provide evidence of unlawful motivation).
TURTLE BAY RESORTS 1283
tivity when she supposedly investigated the charge against
Feltman. The Respondents dispute the fourth element of the
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 pro-
tected 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 em-
ployee 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 motiva-
tion, 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 dis-
parate 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 investi-
gate 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 em-
ployer’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 con-
cerning 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 prospec-
tive 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’ “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’ shadow-
ing 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 demon-
strates 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 be-
cause Feltman threatened a federal witness because of his tes-
timony. As noted above, this argument fails for several reasons.
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 em-
ployees 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. Mendi-
vil 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 circum-
stances, while crude and unfortunate, is not completely surpris-
ing (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 con-
duct 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
The Respondents’ explanation of Feltman’s discipline is a pre-
text.
Another factor from which antiunion animus could be in-
ferred is the timing of the employment action. The Respondents
suspended Feltman and decided to discharge him within ap-
proximately 6 weeks of the date he walked on the May 21
picket line. More importantly, the Respondents made their de-
cision 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 investi-
gate the stated reasons for an employee’s discharge tends to
show that the stated reasons were not determinative in the em-
ployment 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 sus-
pended 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 inves-
tigation that Feltman 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 Respon-
dents’ antiunion animus.
An employer’s concurrent 8(a)(1) violations may also dem-
onstrate 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 demon-
strated by 8(a)(1) coercion as a highly significant factor in de-
termining motive”). The Respondents’ unlawful actions, in-
cluding 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 Man-
agement, 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 in-
appropriate 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 threaten-
ing circumstances, she was given a written warning.
The Respondents argue that even if Feltman was treated dif-
ferently 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 inap-
posite to the present case. Feltman was not discharged for using
profane language, but for threatening a federal witness. More-
over, the Respondents’ asserted reason for Feltman’s discharge
is pretextual.
The Respondents argue that Feltman was discharged for vio-
lating Turtle Bay’s “zero-tolerance” policy. However, the Re-
spondents 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’ wit-
nesses 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 inter-
ject 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).
The Respondents argue that Feltman “engaged in a cruel, de-
liberate 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. 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 ter-
mination 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 termi-
nation 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 inabil-
ity to prove the charge they leveled against Feltman and high-
lighted the pretextual nature of their reason for Feltman’s dis-
charge.
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
TURTLE BAY RESORTS 1285
they reported this allegedly perceived crime to the federal au-
thorities. Having failed in this duty, the Respondents must ac-
knowledge that they and their managers might have committed
the crime of misprision of felony. 18 U.S.C. § 4. The Respon-
dents 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-incrimi-
nating 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 Respon-
dents 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 pre-
text “leav[es] intact the inference of wrongful motive estab-
lished 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 dis-
criminate[e]s absent their union activities.” Rood Trucking Co.,
342 NLRB 895, 899 (2004). Alternatively, because the Re-
spondents’ 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 pro-
tected 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 Un-
ion’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 prop-
erty, 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 rep-
resentatives and the firing of a good employee, that the em-
ployer may have never done in the past and would not other-
wise 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 en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. UNITE HERE! Local 5 (the 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 Respon-
dents’ 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 fa-
cility covered under the collective-bargaining Agreement be-
tween 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 an-
other is prohibited while either person is on working time
or in a public or work area.
b. Distribution by staffmembers of advertising materi-
als, 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 af-
ter your shift.”
e. “Being present on company premises at any time
other than the employee’s assigned work shift, unless spe-
cifically 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 co-
operate during a company investigation.”
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 summon-
ing 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 hand-
ing 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 repre-
sentatives who were engaged in peaceful demonstrations on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
public highway in front of Turtle Bay and on the public beach
adjacent to Turtle Bay, by illegally denying union demonstra-
tors 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 threaten-
ing 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 collec-
tive-bargaining agreement, such as evicting union representa-
tives 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 represen-
tative of the employees at Turtle Bay by refusing to provide
information and by providing some information after an unrea-
sonable and unlawful delay, information that was requested by
the Union in separate letters on April 28, August 30, and Sep-
tember 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 em-
ployee, they must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a quar-
terly 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.
[Recommended Order omitted from publication.]