Waikiki Plaza Hotel

National Labor Relations Board - Board Decisions

May 29, 1987

284 N.L.R.B. 23 (N.L.R.B. 1987)

WAIKIKI PLAZA HOTEL 23
Vail City Corp. dibia Waikiki Plaza Hotel and Cul-
inary & Service Employees Union, Local 555,
AFL-CIO and Independent Service and Culi-
nary Workers Union, Party to the Contract
Association of Unit Owners Imperial Hawaii and
Imperial Hawaii Vacation Club and Culinary &
Service Employees Union, Local 555, AFL-CIO
and Independent Service and Culinary Workers
Union, Party to the Contract. Cases 37-CA-
2119 and 37-CA-2120
29 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 26 April 1985 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Respondents and Independent Service and
Culinary Workers Union filed exceptions and sup-
porting briefs, and the General Counsel and the
Charging Party filed briefs in opposition to those
exceptions and in general support of the judge's de-
cision.i
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions 3 and to adopt the recommended
Order.
1 The Respondents also filed a motion to reopen the record to permit
them to introduce into evidence certain documents that became available
after the hearing and that suggest the possibility of a merger between the
Charging Party, Culinary & Service Employees Union, Local 555, AFL-
CIO, and Hotel Employees, Restaurant Employees Union, Local 5,
AFL-CIO, The Respondents argue that these documents support their
contention made at the hearing that Local 555 ceased to be a labor orga-
nization when it was placed into trusteeship by its parent International,
and became the alter ego of Local 5. The General Counsel and the
Charging Party argue that the issue of a possible merger is not relevant
to the determination of the labor organization status of Local 555 under
trusteeship, and that the documents concern events occurring after the
close of the hearing. Having duly considered the matter, we agree with
the General Counsel and the Charging Party. Accordingly, the Respond-
ents' motion to reopen the record is denied.
In view of our decision here, we find it unnecessary to pass on the
General Counsel's claim that the judge erred in not finding that the Inde-
pendent Service and Culinary Workers Union's requests for withdrawal
of its representation petitions occurred on 11 January 1984.
2 The Respondents have excepted to some of the judge's credibility
findmgs. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings.
3 Chairman Dotson did not participate in RCA Del Caribe, 262 NLRB
963 (1982), cited by the judge in his decision, and expresses no view here
on whether that case was correctly decided. However, absent a majority
to overrule RCA Del Caribe, Chairman Dotson considers himself institu-
tionally bound to apply it.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Vail City
Corp. d/b/a Waikiki Plaza Hotel, and Association
of Unit Owners Imperial Hawaii and Imperial
Hawaii Vacation Club, Honolulu, Hawaii, their of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order, except that the at-
tached notice is substituted for that of the adminis-
trative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT assist or contribute support to In-
dependent Service and Culinary Workers Union by
recognizing or contracting with that labor organi-
zation as the bargaining representative of our em-
ployees unless and until it has been certified as
such representative by the National Labor Rela-
tions Board.
WE WILL NOT give effect to our 10 January 1984
contracts with Independent Service and Culinary
Workers Union, or to any renewal, extension,
modification, or supplement thereof, but we are not
authorized or required to withdraw or eliminate
any wage rates or other benefits, terms, or condi-
tions of employment that we have given to our em-
ployees under such contracts.
WE WILL NOT withhold from the pay of any of
our employees union dues or other union fees or
assessments that have been deducted because of
any obligation of membership in Independent Serv-
ice and Culinary Workers Union, nor pay to that
Union any dues, fees, or assessments that have been
deducted from the pay of our employees or con-
done any such payments made pursuant to the
agreements.
WE WILL NOT discriminate in regard to hire or
tenure and terms or conditions of employment of
our employees to encourage membership in one
labor organization and discourage membership in
another.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
284 NLRB No. 3
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL withdraw and withhold all recognition
from Independent Service and Culinary Workers
Union as the collective-bargaining representative of
our employees unless and until it has been certified
as such representative by the National Labor Rela-
tions Board.
WE WILL reimburse all our employees, former
and present, for initiation fees, dues, assessments,
and other moneys unlawfully exacted from them
under the contracts with Independent Service and
Culinary Workers Union.
WE WILL on request recognize and bargain with
Richard Tam as International trustee for Culinary
& Service Employees Union, Local 555, AFL-
CIO, and sign any understanding reached with him
to make a formal, written agreement.
VAIL CITY CORP. D/B/A WAIKIKI
PLAZA HOTEL
ASSOCIATION OF UNIT OWNERS IM-
PERIAL HAWAII AND IMPERIAL
HAWAII VACATION CLUB
Wanda L. Pate and Thomas W. Cestare, Esqs., for the
General Counsel.
Jared H Jossem and Gregory M. Sato, Esqs. (Torkildson,
Katz, Jossem & Fonseca), of Honolulu, Hawaii, for the
Respondents.
Sean Kim, Esq. (Gill, Park, Park & Kim), of Honolulu,
Hawaii, for the Charging Party.
Randall N Harakal, of Honolulu, Hawaii, for the Inde-
pendent Union as Party to the Contract.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge.
These cases were tried at Honolulu, Hawaii, during con-
secutive business days of September 5-12, 1984. The
charges were filed February 2, 1984, by Culinary &
Service Employees Union, Local 555, AFL-CIO (the
Union), and the complaints were issued March 14, 1984,
with a later order consolidating cases dated July 11,
1984. The primary issue is whether Vail City Corp.
dibia Waikiki Plaza Hotel and Association of Unit
Owners Imperial Hawaii and Imperial Hawaii Vacation
Club (Respondent Plaza and Respondent Imperial), re-
spectively, unlawfully extended collective-bargaining
recognition to Independent Service and Culinary Work-
ers Union (the Independent), and then relatedly discrimi-
nated against employees by the execution of collective-
bargaining agreements with the Independent in which
union-shop provisions were contained and union dues
were deducted, and refused continued recognition of
Local 555, all in alleged violation of Section 8(a)(1), (2),
(3), and (5) of the National Labor Relations Act.
On the entire record,' including my observation of the
demeanor of witnesses, and after consideration of briefs
filed by all parties to the proceeding, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent Plaza and Respondent Imperial are each
corporations having an office and place of business in
Honolulu, Hawaii, where they engage in the operation of
a hotel providing food and lodging for guests. In the
course and conduct of their business operations each Re-
spondent annually derives gross revenues in excess of
$500,000, while purchasing products, goods, and materi-
als at their respective facilities valued in excess of $5000
and received directly from points outside Hawaii. Re-
spondents each admit and I find that they are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
Respondent Plaza was formerly named Holiday Inn
Makai-Waikiki, and as that entity had been party to a
collective-bargaining agreement with the Union having
as its duration December 1, 1980, through November 30,
1983. Respondent Imperial was formerly party to a col-
lective-bargaining agreement with the Union of a 1-year
duration covering the calendar year 1982.
On April 25, 1983, Respondent Imperial, by Ironwood
Resorts as its managing agent, entered into a memoran-
dum of agreement with the Union reciting that due to
"extreme financial hardship" then faced by this Employ-
er the scheduled wages of the existing contract would
not be increased through calendar year 1983. This
memorandum extended the underlying collective-bar-
gaining agreement through 1983, and contained the fol-
lowing provision:
PROTECTION OF EMPLOYEES'
REPRESENTATION RIGHTS
In order to ensure that the majority of employees'
representation rights are protected, both parties un-
derstand and agree to the following:
In the event, during the duration of this
Agreement, the Union is placed in trusteeship by
the HOTEL EMPLOYEES, RESTAURANT EMPLOYEES
INTERNATIONAL UNION, AFL-CIO (herein
HEREIU) Or it is required by HEREIU to merge
With HOTEL EMPLOYEES, RESTAURANT EMPLOY-
EES UNION, LOCAL 5, AFL-CIO, or any other of
HEREIU'S chartered Local Unions, the provisions
of Section 1 (Recognition); Section 2 (Union
Shop); Section 3 (Authorized Deductions); and
Section 33 (Grievance and Arbitration) shall be
immediately suspended and the contract consid-
1 Errors in the transcript have been noted and corrected
WAIKIKI PLAZA HOTEL 25
ered open for purposes of determining any ques-
tion of majority representation including allowing
the Employer or the employees of the Employer
to immediately petition the National Labor Rela-
tions Board for a representation election to deter-
mine the question of representation status.
By letters dated September 2, 1983, and October 4,
1983, respectively, Billy Kurch, president of Local 555,
corresponded with the general managers of Respondent
Plaza (then still Holiday Inn Makai) and Respondent Im-
perial referencing "Contract Reopener/Negotiations."
These letters were each termed "official notification to
you of the Union's desire to commence negotiations in
accordance with the duration provision of our collective
bargaining agreement," informed generally that "substan-
tial increases in employees' wages, hours and working
conditions" would be specifically proposed at a later
time, and contained a typical request for current listing
of employees with relevant data on each. The letters
concluded as follows:
Representing the Union in the negotiations will
be myself and members of an employee/negotiations
committee (still to be named). The Union reserves
the right to amend, change or modify any or all of
it's [sic] proposals during the course of negotiations,
and terms of the collective bargaining agreement
shall be subject to approval by the Union's Execu-
tive Board and ratification by the employees. It is
also understood that only the President and the Sec-
retary-Treasurer of Local 555 shall be Union signa-
tories to the final terms of the Agreement.
Following this, bargaining sessions were held on No-
vember 9, 12, and 23, 1983. By this point in time Iron-
wood Resorts had also become managing agent for Re-
spondent Plaza. In these negotiations the Union was rep-
resented by Kurch, plus Anthony Rutledge, an Interna-
tional vice president of HERE(IU) as well as then-busi-
ness manager of Local 555, and a rank-and-file commit-
tee. The employer negotiators, appearing in coordination
at the sessions, were self-employed labor consultant Pat-
rick Moon, Ironwood Resorts Vice President-Adminis-
tration and Personnel Director Dan Kaneshiro, plus
Frank Gomm and Gene Yojo as respective general man-
agers of Respondent Plaza and Respondent Imperial.
The Union generally sought to continue contractual
structure of the former agreement with Holiday Inn
Makai, while negotiating spokesmen for the hotel proper-
ties preferred "the format and language" of a contract in
effect for the Honolulu Airport Ramada Inn. Kaneshiro
testified that in furtherance of this objective he caused
preparation of a complete proposed agreement, which is
in evidence as General Counsel's Exhibit 13.
Before further negotiations in this context could con-
tinue the general president of HERE appointed a trustee
for Local 555, simultaneous with the lodging of formal
charges under the International Union's constitution.
These actions were reflected in separate letters dated De-
cember 9, 1983, one to Richard Tam for his "authority
and appointment" as International trustee of Local 555
with plenary powers of administration under which,
among numerous other actions, the officers in that affili-
ate were to be suspended. The general president's associ-
ated letter dated December 9, 1983, was written to the
general secretary-treasurer of HERE, Instructing on
preparation of a "Notice of Charges" in justification of
the trustee's appointment, and terming the enumerated
conditions beheved to exist respecting Local 555 as an
"emergency situation" requiring immediate rectification
in the "best interests" of all involved including union
members.
At the time of these actions Tam had been secretary-
treasurer of HERE Local 5 at Honolulu for approxi-
mately 4 years. 2 He promptly undertook steps to consoli-
date the trusteeship by issuing necessary notifications and
establishing a servicing staff. He distributed a letter dated
December 13, 1983, to all Local 555 members advising
that a trusteeship of their union had become effective the
previous afternoon, and that necessary organizational ad-
justments were in motion. This general letter described a
relocation of Local 555 offices to the 18th floor of a
building at 615 Piikoi Street, Honolulu, which was in
fact the premises of Local 5. Tam also caused identical
letters dated December 14, 1983, to be sent by certified
mail to both Gomm and Yojo. These read:
Pursuant to a directive of the Hotel Employees and
Restaurant Employees International Union, the un-
dersigned has been appointed as the representative
of the International to exclusively administer the af-
fairs, including the responsibility of maintaining the
stability of the collective bargaining relationship of
the Culinary and Service Employees Union, Local
555.
As of December 12, 1983, any and all representa-
tives of Culinary and Service Employees Union,
Local 555 and Anthony Rutledge, other than myself
or anyone designated by myself, shall have no au-
thority to transact, sign, or make representations on
behalf of Local 555.
All officers and employees of Local 555 have been
suspended. Said officers, employees and Anthony
Rutledge are not authorized access to the employ-
ers' premises under the Right of Access clause of
the collective bargaining agreement. We will com-
municate to you the names of persons authorized to
represent Local 555 on the premises.
Any and all matters relative to the collective bar-
gaining relationship should be directed to the under-
signed, Richard Tam:
Culinary and Service Employees Union,
Local 555, AFL-CIO
615 Piikoi St., 18th Floor
Honolulu, Hawaii 96814
Phone: 523-5141
2 Locals 5 and 555 are tiv only affiliates of HERE in Hawaii Exten-
sive background on their operations and affairs, plus collateral matters, is
set forth tn Quality Inn Waikiki, 272 NLRB 810 (1984)
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
During December 1983 the Independent filed certain
representation petitions covering standard hotel units at
the two properties. 3 As processing of these cases was un-
dertaken at the NLRB Subregional Office in Honolulu,
Tam pressed ahead with his implementation of the trust-
eeship. His steps included further communication to the
Employers, as in a letter to Gomm dated December 19,
1983, requesting an extension of time on pending griev-
ances while the records of Local 555 were being re-
viewed. More significantly, Tam authorized various staff
personnel of Local 5 to function in regard to the trustee-
ship, and as part of the conversion process essential
office contents, records being the most vital item, were
physically transferred to the premises of Local 5 and
Local 555's former location was abandoned. William
Fuhrmann, administrative assistant to the secretary-treas-
urer of Local 5, testified that since December 12, 1983,
he has functioned as assistant to International Trustee
Tam, and in connection with membership meetings as
well as contract servicing has maintained a segregated
record of his time spent in duties on behalf of Local 5
versus duties for Local 555 under trusteeship. Compara-
ble prorating of employment applies to staff of Local 5
who provide financial, clerical, or other services to
Local 555.
As these matters transpired, a prehearing conference
was docketed on the Independent's representation peti-
tions for January 5, 1984, and a bargaining session was
scheduled between Tam and the employers for January
4, 1984. In this first actual contract negotiation by its
trustee, Local 555 was represented by Tam, Fuhrmann,
and functionaries Lowell Kaanehe and Sherry Chock.
The hotel properties were represented by Moon, Kane-
shiro, Gomm, and Yojo, with the meeting proceeded by
dealing first with Respondent Plaza, followed by negoti-
ations respecting Respondent Imperial. Fuhrmann testi-
fied that Moon displayed the contract draft in evidence
as General Counsel's Exhibit 13, stating it represented
the extent of agreement reached with previous negotia-
tors for Local 555 as to Respondent Plaza. Fuhrmann re-
called the Union's position being that they would review
matters in the context of this document and advise fur-
ther concerning their position as to the negotiations with
Respondent Plaza Fuhrmann also testified that a particu-
lar section 38, "Protection of Employees' Representation
Rights" (quoted above), which the trustee and his repre-
sentatives thereafter derisively labeled the "drop dead"
clause, was discussed at this meeting as an unacceptable
component of the draft. Moon denied\ presenting this
document during the meeting of January 4, 1984. With
respect to Respondent Imperial, Fuhrmann testified how
a wage counterproposal was extended by Tam, coupled
with insistence on again deleting the offensive section 38.
Fuhrmann recalled Moon's response here being that the
Union's stated position would be considered and as rep-
resentative for this Employer he would "get back to
us."4 As matters actually unfolded there were no further
3 Each appropriate unit is contractually defined in terms of classifica-
tion listings typical for a full service (Respondent Plaza) and vacation
club (Respondent Imperial) hotel facility, which appear as the "A" ad-
dendum to G C Exhs '6c and 7b, respectively
4 All dates hereafter are in 1984 unless otherwise indicated
negotiations between the parties, however, Tam sent
Moon followup letters dated January 12, 13, and 25, the
essence of which conveyed agreement, in principle and
conditionally, on Respondent Plaza plus a reminder that
Respondent Imperial had not given a response to the
Union's wage proposal.
The prehearing conference on representation cases
took place as scheduled on January 5. Among the par-
ticipants were Thomas Medeiros, first vice president of
the Independent, and Attorney Randall Harakal, counsel
to that organization. Medeiros had signed the various
representation petitions of December 1983, the significant
remaining ones being those the subject of the prehearing
conference as Case 37-RC-2759 filed December 21,
1983, on Respondent Imperial and Case 37-RC-2760,
filed the same date on Respondent Plaza. Local 555 was
identified in the body of each petition as the "Recog-
nized or Certified Bargaining Agent" under an expired
contract. The parties could not reach consent agreement
to hold elections, and this conference concluded on the
basis that a hearing date would be set on the petitions.
On January 6 Attorney Harakal caused hand delivery
of identical letters to the general managers of each hotel
property. These letters identified him as "legal counsel"
to the Independent and enclosed copies of signed cards
that were termed as showing that "a clear majority of
your employees" had requested representation by the In-
dependent. Each letter also embodied a demand for rec-
ognition of the Independent as "exclusive collective bar-
gaining representative" and a request to meet as soon as
possible "to begin negotiations."
With this impetus a card check was arranged to take
place with regard to each property on January 9, Ru-
dolph Duncan, an ordained minister and employed offi-
cial of the Episcopal Diocese of Hawaii, was engaged to
carry out such card checks, and representatives of the
employers and the Independent assembled in the after-
noon of January 9 for such purpose at an available res-
taurant of Respondent Plaza. Those present with Duncan
were Attorney Harakal, Medeiros, Moon, Kaneshiro,
Gomm, and Yojo. Reverend Duncan was furnished em-
ployee lists for Respondent Plaza and Respondent Impe-
rial totaling 95 and 39 names, respectively. He was also
provided copies of employee authorization cards signed
on behalf of the Independent. From these combined ma-
terials he concluded that a majority was shown from 58
valid cards of employees at Respondent Plaza, but that
the Independent's 19 cards for Respondent Imperial left
it short of a majority showing.
At this point Reverend Duncan signed a handwritten
certification of card count results for Respondent Plaza,
and this was then converted to a formal typed document.
Duncan signed again as did Medeiros and Gomm on
both occasions. The following day Medeiros delivered
two additional authorization cards to the Diocese offices,
with the result that Duncan signed another certification
covering Respondent Imperial and showing the total em-
ployees "as provided by the Employer" to be 34 with 21
valid representation cards. This document, dated January
10, was countersigned by Medeiros and Yojo. Both hotel
managers also sent identical letters to the Independent
WAIKIKI PLAZA HOTEL 27
dated January 10 advising that based on the respective
certifications recognition was being granted as "sole and
exclusive bargaining representative" for unit employees.
As these developments unfolded, negotiations had
begun between the hotels and the Independent late in the
afternoon of January 9 with Moon and Medeiros, among
others, involved in the process. The Independent made
verbal proposals and after discussion spanning upwards
of an hour a definable agreement was declared with re-
spect to Respondent Plaza and one in "principle" for Re-
spondent Imperial. Kaneshiro labored throughout that
evening and by the next day had produced complete
agreements that are in evidence as General Counsel's Ex-
hibits 11 and 12. These contracts were signed on January
10 by respective managers of each hotel and by Me-
deiros on behalf of the Independent. Additionally, a sep-
arate memorandum of understanding was signed in each
case with several provisions including modification of
union security-language, escrowing of pension fund con-
tributions, and a hold-harmless clause running to the em-
ployer regarding liability arising from the contracting
process. Medeiros testified that unit employees of Re-
spondent Plaza and Respondent Imperial ratified these
contracts in meetings held on January 10 and 11, respec-
tively, and that late in the afternoon of January 10 he ap-
peared at the Board's subregional Office to execute with-
drawal requests for Cases 37-RC-2759 and 37-RC-2760.
These requests, in evidence as General Counsel's Exhib-
its 20 and 21, show an approval entered on behalf of Re-
gional Director Robert H. Miller as of January 11.
B. Analysis
Each component of the General Counsel's case has
been satisfactorily established by the proofs. Initially, I
observe that the trusteeship of Local 555 was orderly in
its imposition and implementation, all a reflection of
public policy as set forth in Title III of the Labor-Man-
agement Reporting and Disclosure Act of 1959. The
dealings over an approximate 4-week period following
trusteeship showed it was viable and meticulously dis-
tinct from influence by Local 5 from which personnel
and resources were admittedly drawn. Aside from ex-
pectable communication to affected employees and the
industry itself, there were specific labor-management
dealings and a resumption of bargaining momentum that
carried through to January 4. It was only shortly after
this point that the employers abruptly renounced what
was successfully underway between themselves and the
trustee. I find Fuhrmann to be a particularly impressive
witness from the point of candor, assurance of recall and
demeanor, crediting him in full with respect to testimony
that on January 4 he was given a proposed contract that
Respondent Plaza had already determined to accept. By
then the only remaining steps necessary to renewed con-
tractual relations with the two hotel properties were the
trustee's acceptance of what is in evidence as General
Counsel's Exhibit 13, and the Employer's acceptance, Or
further negotiations relative thereto, of the trustee's posi-
tion as to Respondent Imperial. What eventuated instead
was a swift, bizarre, and totally unlawful series of actions
by which the trustee was supplanted and the Independ-
ent spuriously substituted in its place. This was done
even as Local 555 wrote a series of earnest followup let-
ters in January, indicative of the trustee's active adher-
ence to his role.
The card check conducted by Reverend Duncan was
not of a character to establish majority representation
being enjoyed by the Independent for the fundamental
reason that no assurances were present of signatures to
authorization cards being those of the individuals listed
as being employed within the respective units. 5 Further-
more, the evidence shows that Moon, as chief labor rela-
tions functionary for the hotels, was devoid of good-faith
belief in any results of the examination process because
of admitted inattentiveness or lack of knowledge as to
how any conclusions were reached by the impartial
cleric. On this basis recognition for the Independent was
tainted from the outset, and the precipitate pace with
which matters progressed over the eventful 2 days of
January 9 and 10 show plainly that Respondents seized
on an artificial opportunity to envade their obligation of
continued dealings with Tam and his representatives.
The contracts as reached, particularly that with Re-
spondent Imperial, were substantially identical to what
was on the verge of being signed with Local 555 less
than a week earlier. Aside from minor variations in
format, the discernible differences are that General
Counsel's Exhibit 11 deletes section 10.9 concerning mul-
tihotel seniority, deletes section 14.14 and 14.15 concern-
ing short shifts, substitutes language on breaks for one on
meals as section 22, sets forth specific provisions on trust
funds for those previously proposed in perpetuation of
HERE plans as sections 25 and 26, somewhat modifies
holiday language in section 27, deletes formerly pro-
posed section 38 on protection of employee representa-
tion rights ("drop dead" clause), and adds certain ban-
quet gratuity language as section 40.1. The deletion of
section 38 caused a renumbering of remaining sections as
comparing the two documents, and General Counsel's
Exhibit 11 as actually reached between the parties estab-
lished a duration of January 1-December 1985 in lieu of
the proposed 1-year duration clause of General Counsel's
Exhibit 13, which was offered to cover December 1,
1983-November 30, 1984. A comparable degree of simi-
larity is also found in the agreement reached by Re-
spondent Plaza with the Independent.
As the General Counsel contends the case is con-
trolled by Signal Transformer Co., 265 NLRB 272 (1982).
Signal is largely germane because of its holding that ar-
rival of a competing outside union would not necessarily
disturb an incumbent union's presumptively enjoyed
status, nor justify withdrawal of recognition from it in
the absence of a collectively sufficient array of objective
considerations on which an employer might in good faith
rely. Nothing in RCA Del Caribe, Inc., 262 NLRB 963
(1982), varies such an outlook, for that decision con-
firmed the entitlement of an employer to continue bar-
5 The classification listings that comprise approprial e units of the case
were indirectly reflected in the recognition document dated October 2,
1983, in whih new ownership of Respondent Plaza couched their transi-
tional agreement with Local 555 in terms of an overall hotelwide unit
typical to the industry. This harmonizes with the appropriate unit de-
scriptions set forth in par. 6(a) of the complaint in each case.
28
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining with an incumbent union in the face of a rival
representation petition. Accord: Dresser Industries, 264
NLRB 1088 (1982). Furthermore, the traditional doctrine
of Midwest Piping & Supply Co., 63 NLRB 1060 (1945), is
applicable, inasmuch as the Independent did not make a
timely withdrawal of its petitions at the point contracts
were reached. Moon plainly admitted that negotiating
discussion in regard to Respondent Imperial occurred on
January 9 before even a colorable claim of majority was
perfected (Tr. 701), while Yojo's recognitional letter in-
explicably also keys to that same date. The composite
circumstances show that a crudely orchestrated sham
was mounted with various interests conspiring to ease
out the lawful standing of Tam. It is not shown that
bona fide objective considerations guided the employers,
or that recognition of the Independent reflected majority
desires of employees within the respective appropriate
units. In a final regard I discredit Medeiros' confused
and shifting testimony, but do not specifically find that
his submission of withdrawal requests to the Subregional
office was on January 11. While this was date of approv-
al it is conversely true that Medeiros achieved numerous
visits on the afternoon of January 10 and the documents
have no date stamp to contradict his recollection of time
sequence.
CONCLUSIONS OF LAW
1. Respondent Plaza and Respondent Imperial are each
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union and the Independent are each a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By recognizing the Independent, by executing a col-
lective-bargaining agreement with the Independent, and
by maintaining in effect and enforcing the provisions of
the contract, which contained union-security and dues-
checkoff provisions, Respondents have each discriminat-
ed in regard to terms or conditions of employment to en-
courage or discourage membership in a labor organiza-
tion, have rendered and are rendering unlawful assistance
and support to the Independent, and have interfered
with, restrained, and coerced, and are interfering with,
restraining, and coercing their employees in the exercise
of Section 7 rights in violation of Section 8(a)(3), (2), and
(1) of the Act.
4. By refusing on and after January 10 to continue rec-
ognizing and bargaining with the Union as exclusive col-
lective-bargaining representative of employees in the ap-
propriate unit, the Respondents have each violated Sec-
tion 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices. affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that Respondents have engaged in unfair
labor practices, I find it necessary to order them to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Specifically, I shall
order Respondents to withdraw all recognition from the
Independent as representative of their employees for pur-
poses of collective bargaining in the appropriate hotel-
wide units herein, unless and until the Independent has
been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
I shall also order Respondents to cease giving force and
effect to the collective-bargaining agreements executed
on January 10, or any renewal, modification, or exten-
sion thereof; provided, however, that nothing in the
Order shall authorize or require the withdrawal or elimi-
nation of any wage increase or other benefits, terms or
conditions of employment that may have been estab-
lished pursuant to those agreements. In addition, I shall
order Respondents to reimburse, with interest, all present
and former employees for all initiation fees, dues, and
other moneys that may have been exacted from them by,
or in behalf of, the Independent. The latter requirement
is a remedial measure serving simply to restore to Re-
spondents' employees sums involuntarily withheld pursu-
ant to the checkoff provision in an unlawfully executed
and maintained collective-bargaining agreement or as ac-
cepted directly by the Independent. See NLRB v. Forest
City/Dillon-Tecon Pacific, 522 F.2d 1107 (9th Cir. 1975);
Special Service Delivery, 259 NLRB 993, 994 and cases
cited (1982).
Having further found that Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain
with the Union as exclusive representative of their em-
ployees in the respective overall units, I shall recom-
mend that Respondents cease and desist therefrom and,
on request, bargain collectively with the Union as their
employees' designated agent concerning wages and other
terms or conditions of employment.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 6
ORDER
The Respondents, Vail City Corp. d/b/a Waikiki
Plaza Hotel and Association of Unit Owners Imperial
Hawaii and Imperial Hawaii Vacation Club, Honolulu,
Hawaii, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Assisting or contributing support to the Independ-
ent by recognizing or bargaining with such labor organi-
zation as the exclusive representative of their employees
for the purpose of collective bargaining unless and until
the Independent is certified by the National Labor Rela-
tions Board as the collective-bargaining representative of
such employees pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any force and effect to the
collective-bargaining agreements between Respondents
and the Independent dated 10 January 1984, or any re-
newal, extension, modification, or supplement thereof;
provided, however, that nothing in this Order shall au-
thorize or require the withdrawal or elimination of any
6 If no exceptions are filed as provided by Sec 102 46 ' of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur.
poses.
WAIKIKI PLAZA HOTEL 29
wage increase or other benefits, terms or conditions of
employment that may have been established pursuant to
performance of those agreements.
(c) Withholding from the pay of any of its employees
union dues or other union fees or assessments that have
been deducted because of any obligation of membership
in the Independent, and paying to the Independent any
dues, fees, or assessments that have been deducted from
the pay of its employees or condoning any such pay-
ments made pursuant to the agreements.
(d) Discriminating in regard to hire or tenure and
terms or conditions of employment of their employees,
thereby encouraging membership in one labor organiza-
tion and discouraging membership in another.
(e) Failing to recognize and bargain, on request, with
the International Trustee for Culinary & Service Em-
ployees Union, Local 555, AFL-CIO.
(f) 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) Withdraw and withhold all bargaining recognition
from the Independent unless and until the Independent is
certified by the National Labor Relations Board as the
exclusive representative of their employees in an appro-
priate unit.
(b) On request, bargain with the Union as the exclu-
sive representative of employees in the appropriate units
on wages and other terms or conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement.
(c) Reimburse all former and present employees for all
initiation fees, dues, assessments, and other moneys, if
any, withheld from or paid by them, in the manner pro-
vided in the remedy section of this decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at their Honolulu, Hawaii facilities copies of
the attached notice marked "Appendix." 7 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representatives, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
7 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"