NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Oaktree Capital Management, LLC and TBR Property,
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 answering brief, limited exceptions, and supporting brief.[1]
The Board[2] 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 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
We affirm the
judge’s findings, for the reasons he states, that the Respondents[5] committed numerous violations of Section
8(a)(1).[6]
We also affirm the judge’s findings that the Respondents violated Section 8(a)(3) and (1) of the Act by discharging employee Mark Feltman, by suspending employee Timothy Barron, and by warning employee Jeannie Martinson.
With respect to Feltman, the judge found that the Respondents’ asserted defenses were pretextual and therefore did not raise any question of dual motivation under the Wright Line test.[7] We find instead that the Respondents proved the existence of a legitimate reason for disciplinary 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 preponderance of the evidence that it would have taken the same action in the absence of protected conduct. Carpenter 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 Respondents.
However, Feltman’s discipline was more severe than that imposed by the
Respondents on at least five other occasions involving employees who used bad
language 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 Respondents
failed to prove that they would have discharged 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 requested information relevant to its duties as the employees’ 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 required union agents to pay for parking, which the Respondents 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 significant change that would require the Respondents to bargain before making the change.” The General Counsel 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 explanatory testimony by Director of Human Resources Ramos that she completed these forms and that they reflected 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 parking 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 evidence of the monetary amounts at issue for the parking privileges unilaterally revoked by the Respondents. Accordingly, 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 alleged.
ORDER[8]
The National Labor Relations Board adopts the recommended
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.,
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 furnishing,
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
(c) Maintaining the rules of
conduct applicable to employees that have been found to violate Section 8(a)(1)
of the Act, or similar rules, and that are set forth in paragraph 5 of the
judge’s conclusions of law.
(d) Maintaining overly broad
rules that limit employees’ right to discuss their wages and working
conditions.
(e) Maintaining overly broad
rules that prohibit employees from soliciting or distributing literature in nonwork
areas and during nonworktime.
(f) Maintaining overly broad
rules that prohibit employees’ presence on
(g) Maintaining overly broad
rules that restrict employees’ rights to engage in protected concerted
activity.
(h) Telling representatives of
the Union that they are trespassing and have no right to be on
(i) Issuing trespass notices to
representatives of the
(j) Evicting representatives of
the Union from
(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 permitted to collect dues at
(m) Photographing or videotaping
union representatives and employees who are engaged in lawful demonstrations.
(n) Following union
representatives in the
(o) Eavesdropping on
conversations between union representatives and employees.
(p) Preventing union
representatives and employees from going to the public beaches adjacent to
(q) Disparaging union
representatives and threatening to discipline employees for talking to union
representatives.
(r) Threatening to close
(s) Discharging, suspending,
disciplining, or otherwise discriminating against any employee for supporting
the
(t) In any like or related manner
interfering with, restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following
affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the rules set forth
in paragraph 5 of the judge’s conclusions of law.
(b) Rescind the overly broad rule in our employee handbook that limits employees’ rights to discuss their wages and working conditions.
(c) Rescind the overly broad rule in our employee handbook that prohibits employees from soliciting or distributing literature in nonwork areas and during nonworktime.
(d) Rescind the overly broad rule in our employee handbook
that prohibits employees’ presence on
(e) 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.
(f) Provide and give to the
Union all of the information requested by the
(g) Continue in full force and
effect the access provision of the collective-bargaining agreement with the
(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 equivalent 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
result 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 discharge
of Mark Feltman, the unlawful suspension of Timothy Barron, and the unlawful
discipline of Jeannie Martinson, and within 3 days thereafter notify the employees
in writing that this has been done and that the discharge, suspension, and
discipline will not be used against them in any way.
(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 designated by the Board or its
agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(l) Within 14 days after service
by the Region, post at their facility in Kahuku,
(m) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply.
It is further ordered that the complaint allegation that the Respondents violated Section 8(a)(5) and (1) of the Act by ceasing to validate parking for the union representatives 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 appropriate 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.
Dated,
Wilma B. Liebman, 
Chairman
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not fail and refuse to bargain in good faith with 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
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
We will
not maintain overly broad rules that restrict employees’
rights to engage in protected concerted activity.
We will not
tell representatives of the Union that they are trespassing and have no right
to be on
We will not
issue trespass notices to representatives of the
We will not
evict representatives of the Union from
We will not summon law enforcement officials to remove or assist in removing union representatives contrary to their contractual right to be on the premises.
We will not
tell union representatives that they are not permitted to collect dues at
We will not photograph or videotape union representatives and employees who are engaged in lawful demonstrations.
We will not
follow union representatives in the
We will not eavesdrop on conversations between union representatives and employees.
We will not
prevent union representatives and employees from going to any public beach
adjacent to
We will not disparage union representatives and threaten to discipline employees for talking to union representatives.
We will not
threaten to close
We will not
discharge, suspend, warn, or otherwise discriminate against any employee for
supporting the
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
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 nonworktime.
We will
rescind the overly broad rule in our employee handbook that prohibits employees’
presence on
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 the Union access provision of the collective-bargaining agreement until an agreement is reached or there is an impasse on all mandatory subjects of bargaining.
We will, within 14 days from the date of this order, offer Mark Feltman full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights 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 unlawful 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 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
and Rees, LLP), of
David A.
Sgan, Esq. (Gill & Zukeran), of
DECISION
Statement of the Case
Joseph Gontram, Administrative Law Judge. This case was tried
in
At the hearing,
the General Counsel submitted an oral motion to amend the caption to substitute
“TBR Property, LLC” for “TBR Properties, LLC.” This motion was granted. The
Respondents contend that this amendment to the caption denied them due process.
This contention is rejected. The first consolidated complaint and the first
amended complaint in this case listed “TBR Property, LLC” in the caption. (GC
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 typographical error in the
caption by listing “TBR Properties, LLC” instead of “TBR Property, LLC.” (GC
Exh. 1(eeee).) “TBR Property, LLC” notified the General Counsel that its answer
to the second amended complaint satisfied its requirement to answer the third
amended complaint. (GC Exh. 1(kkkk).) Of course, “TBR Property, LLC” was not
required to answer the complaint if it were not named as a party in the
caption. At no time did “TBR Property, LLC” ever alert the General Counsel to
the typographical error or indicate confusion from the typographical error.
Moreover, “TBR Property, LLC” was consistently and correctly named in the
complaints’ allegations. The permission granted to the General Counsel to amend
the caption to correct the typographical error has been reconsidered and is
affirmed.
The events
giving rise to the allegations in the complaint occurred at the Turtle Bay Hotel
and Resort in
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 Section 8(a)(1) of the Act by interfering
on numerous occasions with Turtle Bay’s employees in the exercise of their
rights under Section 7 of the Act; and (3) violated Section 8(a)(1) and (3) of
the Act by unlawfully disciplining three employees because of those employees’
protected and concerted activities.
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondents, I make
the following
Findings of Fact
i. jurisdiction
Oaktree Capital
Management, LLC (Oaktree) acquired ownership and control of Turtle Bay Resort
in 2000. This ownership and control is maintained through several intermediate
companies, including Turtle Bay Holding, LLC (Turtle Bay Holding), TBR
Property, LLC (TBR Property), and Kuilima Resort Company (Kuilima). TBR
Property is a wholly owned subsidiary of Kuilima, and it leases the resort
property from Kuilima. In turn, TBR Property has contracted with Benchmark
Hospitality, Inc. (Benchmark) to manage the resort.
The Turtle Bay Resort
is located on a peninsula in Kahuku on the northwestern coast of
The General
Counsel subpoenaed documents and persons from Oaktree and Benchmark for the hearing.
The subpoenaed documents included documents relating to the operation, management,
and business of these Respondent companies. In general, the Respondents did not
comply with these subpoenas nor did the named persons appear at the hearing
pursuant to the subpoenas.
The Respondents
acknowledge that the gross revenues of the resort exceeded $500,000 during
2004. In addition, the resort purchases and receives goods and materials in
excess of $5000, which originate from points outside the State of
Establishing
these jurisdictional facts was unnecessarily complicated and prolonged because
of the Respondents’ refusal to comply with subpoenas and the Respondents’ objections
to testimony dealing with jurisdictional matters, which the General Counsel was
forced to develop because of the Respondents’ refusal to comply with the
subpoenas. Yet, the size of the resort, its large hotel, and varied activities,
including two golf courses that host yearly PGA-sponsored golf tournaments, all
on the island State of Hawaii, should give the Respondents pause before raising
the issue while the Respondents refuse to comply with subpoenas seeking
pertinent, jurisdictional information. By engaging in this conduct, the
Respondents tend to obscure what may be serious from insubstantial arguments in
the case. Notwithstanding, and without regard to the foregoing, all positions
and contentions of both parties are and will be considered to the fullest
extent.
The Respondents
are engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act. The
ii. joint and single employer
The General
Counsel contends that Oaktree and TBR Property are single employers, and
Benchmark is a joint employer with Oaktree and TBR Property. As noted above,
Oaktree controls and effectively owns Turtle Bay Resort, TBR Property leases
the resort, and Benchmark operates the resort under a contract with TBR
Property. These relationships and responsibilities may be traced as follows.
Oaktree
purchased
Russell Bernard
is a principal of Oaktree and is the portfolio manager for Oaktree’s real
estate funds. The resort is included within those funds, and Bernard is the
asset manager for the Turtle Bay Resort. Bernard is the president of TBR Property
and is a member and general partner of Kuilima. Marc Porosoff is the senior
vice president, legal, of Oaktree, and he is the vice president and treasurer
of TBR Property. Stephanie Schulman is an in-house counsel for Oaktree (she
works with Porosoff), and is the vice president and secretary of TBR Property.
Bernard and Porosoff,
as the principal and senior vice president of Oaktree, respectively, executed
the lease between Kuilima and TBR Property. They signed that lease on behalf of
Kuilima, TBR Property, and Oaktree. Bernard and Porosoff, as the principal and
senior vice president of Oaktree, respectively, executed the management
agreement between TBR Property and Benchmark. They signed this agreement on
behalf of TBR Property and Oaktree.
Porosoff assisted in negotiating this management agreement.
The management
agreement between TBR Property and Benchmark provides that TBR Property remains
liable for all operating expenses of Turtle Bay Resort, including all payroll
and employee benefits. All revenues Benchmark derives from its management and
operation of Turtle Bay Resort is deposited into accounts that TBR Property
controls. Bernard and Porosoff are signatories on those accounts. TBR Property
and Benchmark participate in labor negotiations at the resort, and Benchmark is
prohibited from signing any collective-bargaining agreement without the prior,
written approval of TBR Property.
Hy Adelman is a
representative of Oaktree, and he maintains an office and residence on the
Oaktree is
required to approve equipment leases for the resort, and Adelman, Oaktree’s
representative at the resort, handles these matters. In one instance, Adelman authorized
and approved an equipment lease signed by TBR Property. Adelman also oversees
and approves housekeeping supplies.
Video production
companies will occasionally film scenes at the resort. Prior to filming, the
resort requires the production companies to obtain insurance protecting
Oaktree. In addition, Oaktree executed an employment practices insurance application
on behalf of the Turtle Bay Resort.
The Respondents
admit that TBR Property and Benchmark “have control over labor relations or
personnel matters at the Hotel at the Turtle Bay Resort.” (Answers of
Benchmark, TBR Property, and Oaktree to the second and third amended consolidated
complaints.) The management agreement provides that Benchmark is responsible
for managing and operating the resort. Benchmark’s vice president of human
resources maintains that TBR Property is the employer of the resort’s employees.
The TBR Property/Benchmark management agreement provides that TBR Property must
authorize and approve any negotiations with a labor union and any proposed
collective-bargaining agreement. Benchmark participates in labor negotiations
on behalf of
The different
responsibilities of Oaktree, TBR Property, and Benchmark in labor and personnel
matters are more fluid than solid. The vice president of Benchmark maintains
that TBR Property is the employer, yet Benchmark is the day-to-day operator and
manager of the resort. Moreover, Benchmark, not TBR Property, has issued a “Rules
and Regulations” handbook governing conduct by the resort’s employees.
Benchmark also has issued a “Staff Handbook—Collective Bargaining Unit Version”
governing conduct by, compensation for, and work regulations of the bargaining
unit employees. (GC Exhs. 9 and 10.) Moreover, TBR Property seems to be a shell
corporation with no purpose other than to provide insulation to Kuilima and
Oaktree from TBR Property’s selection of Benchmark as the operator and manager
of the resort. As the Respondents state in their brief, “TBR Property, LLC is
nothing more than the legal lessor of the property upon which the Turtle Bay
Resort is situated. It has no management responsibility whatsoever with respect
to daily operations or employment practices.” (R. Br. 175.) The overbearing
presence in these relationships is Oaktree, the effective owner of the resort,
which must be consulted, either directly or through TBR Property, before any
significant decisions are made by or at Turtle Bay Resort, including decisions
on labor matters.
The
determination of whether two or more entities are sufficiently integrated to be
deemed a single employer depends on all of the circumstances of the case. The
inquiry focuses on whether the entities’ total relationship reveals (1) some
functional interrelation of operations, (2) centralized control of labor
relations, (3) common management, and (4) common ownership or financial
control. Radio & Television Broadcast Technicians Local 1264 v.
Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965); Parklane Hosiery
Co., 203 NLRB 597, 612 (1973); Sakrete of Northern California, Inc.,
137 NLRB 1220 (1962), enfd. 332 F.2d 902 (9th Cir. 1964). Not all of these
criteria must be present to establish single-employer status.
(1) Some
functional interrelation of operations. All of the officers of TBR Property
are officers, principals, or employees of Oaktree. There is no evidence that
TBR Property has any other employees. There is no evidence that TBR Property
has any purpose other than to act as Oaktree’s conduit through which the resort
is managed and operated by Benchmark. Every act and right to act by TBR
Property is known by and controlled by the ultimate owner of TBR Property—Oaktree.
Thus, to the limited extent that TBR Property engages in any operations, those
operations are controlled by and closely interrelated with the operations of
Oaktree.
(2) Centralized
control of labor relations. As noted above, there is no evidence that TBR
Property has any officers, managers, or principals other than officers,
managers, and principals of Oaktree. As Oaktree’s conduit, TBR Property has the
right to control and it does control the labor relations of the resort.
Benchmark operates
(3) and (4) Common
management and ownership and financial control. Oaktree and TBR Property
share management, ownership, and financial control. The principals and officers
of Oaktree are the principals and officers of TBR Property. Oaktree owns the
owner of Kuilima, which, in turn, owns TBR Property. Kuilima is the record
owner of the
Oaktree and TBR
Property share each of the four criteria to a degree that, in consideration of
all the circumstances, they are sufficiently integrated to be deemed a single
employer. Moreover, Benchmark and TBR Property admit that they are joint
employers of the employees at the resort because they admit to having “control
over labor relations or personnel matters at the Hotel at the Turtle Bay Resort.”3 See NLRB v. Browning-Ferris
Industries of Pennsylvania, Inc., 691 F.2d 1117, 1122–1123 (3d Cir. 1982).
Accordingly, the Respondents—Benchmark and TBR Property, together with TBR
Property’s single employer, Oaktree—are joint employers of the employees at Turtle
Bay Resort.
The Respondents
contend that Oaktree is not a joint employer with Benchmark, but this
contention is inapposite. The Respondents admit that Benchmark is a joint
employer with TBR Property. And, TBR Property’s single-employer status with
Oaktree brings Oaktree within the ambit of TBR Property’s joint-employer status
with Benchmark.
iii. alleged unfair labor practices
A. Background
After Oaktree
purchased control of the Turtle Bay Resort facilities, it contracted with
Hilton to operate and manage the resort. Hilton’s operation and management
lasted from 1998 to 2001. Since 2001, Benchmark has operated and managed the
resort.
Since 1999, the
Union has been recognized as and has been designated as the exclusive
bargaining representative of
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
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
Throughout the
period 2002 to 2005, Marian Marsh, a union business agent who was assigned to
During her
twice-weekly visits, Marsh followed the practice of walking through the work
areas on the ground and lower levels of the hotel as her first order of
business. Her purpose was to let the employees know she was there. She then
went to the employee cafeteria where she talked to employees. It is not clear
if the Respondents dispute whether Marsh was permitted to go through the work
areas on the ground and lower levels of the hotel. The Respondents’ witnesses
differed greatly in attempting to define or describe authorized areas for union
representatives. These witnesses, including Nancy Ramos, the director of human
resources at
All facts found
in this decision are based on the record as a whole and on my observation of
the witnesses. The credibility resolutions have been made from a review of the
entire testimonial record and exhibits with due regard for logic and probability,
the demeanor of the witnesses, and the teaching of NLRB v. Walton Mfg. Co.,
369 U.S. 404 (1962). Many witnesses testified during the two hearing sessions
in this case, and it would be unproductive, inefficient, and confusing to address
the testimony given by every witness concerning the many factual matters
covered in this decision. Nevertheless, it should be noted that as to those
witnesses testifying in contradiction of the findings, their testimony has been
discredited, either as having been in conflict with the testimony of reliable
witnesses or because it was incredible and unworthy of belief or as more fully
explained in the text. With respect to the testimony regarding what occurred at
meetings or discussions with management or security personnel at the resort, I
have also taken into account the economic dependence of employees on employers,
with awareness of an employee’s attentiveness to intended implications of the
employer’s statements which might be more readily dismissed by a disinterested
party. See NLRB v. Gissel Packing
Co., 395
The security
officers’ varying descriptions of areas where Marsh supposedly was permitted
reflects a general intent to limit those areas to an absolute minimum without,
however, these security officers having an understanding of the consequences of
or reasons for such restrictions. It was as if the security officers had been
instructed or had agreed before the hearing to say that Marsh was authorized to
be in only one room in the hotel—the employee cafeteria—without regard to the
truth of this contention or the previous practice of the parties.
Security officer
Ah Sua testified that he believed union representatives were only allowed in
the employee cafeteria. (One wonders how the union representatives were
supposed to get to the employee cafeteria.) Sua changed his story on authorized
union access several times. Sua also claimed that union representatives had an “all-access
pass.” (Tr. 2317.) When asked to explain the meaning of all-access pass, Sua
said, implausibly, that such a pass restricted the union representatives to the
loading dock and the employee cafeteria. Sua later contradicted this story and “remembered”
that two supervisors had told him that union representatives do not have
all-access passes. (Tr. 2352.)
Security officer
Anthony Hite, a supervisor, testified that union representatives were allowed
in the employee cafeteria. For Hite, union representatives are not allowed in
guest areas, which Hite defined as “anywhere other than where the employees
are.” (Tr. 2198.) For Hite, guest areas include most of the hotel, including
the parking lot. However, at least one of the parking lots is open to the
public, but Hite apparently had not considered that anomaly during his attempt
to restrict the union representatives’ authorized access.
Romeo Nauta, a
supervisory security officer, told security officer Robert Fortin that union
representatives are permitted to go into work areas. Dougher testified that an
unauthorized area for a union representative is “[a]nything that the guest pays
to be in their privacy which is your guest floors.” (Tr. 3670.) However,
Dougher changed his testimony by adding that production areas are also
unauthorized whenever employees were working in those areas. This incredible
qualification would effectively bar a union representative from going anywhere
in the hotel, including the employee cafeteria. Moreover, Dougher’s attempt to
limit the Union’s authorized access to the resort is contrary to Nauta’s
instructions to Fortin, and is not supported by Nancy Ramos, the director of
human resources at
Security guard
Rudy Faifili testified that union representatives are not allowed in any areas
where guests go. Supervisory security guard, Gary Nagy, testified that union
representatives were only allowed to go to the parking lot and the employee
cafeteria. Nagy testified that his understanding was based on the collective-bargaining
agreement, but he later admitted that he had never read that agreement.
The question of
authorized union access at the resort is ultimately resolved by the testimony
of Fortin, confirmed at least in part by Dougher and Ramos. More importantly,
the determination that union representatives are permitted to go to work areas
throughout the hotel is confirmed by the actual practice of the union representatives
and the Respondents throughout this period of time. For example, Marsh followed
the practice of initially walking through the work areas on the ground and
lower levels of the hotel on her twice-weekly visits. And, except for some of
the Respondents’ actions detailed below, including the issuance of trespass
notices that were allegedly issued for other reasons, as well as surveillance
activities by security guards, which were also allegedly done for other reasons,
the Respondents did not attempt to stop her.
For all of the
foregoing reasons, the evidence demonstrates that union representatives are
allowed to be present in the work areas on the ground level and lower level of
the hotel, which includes most areas on those levels, including the restaurants,
kitchens, lobby, and parking lots. The Respondents have granted the
B. Rules and
In approximately
January 2002, the Respondents issued a handbook of rules and regulations. (rules
and regulations.) (GC Exh. 9.) These rules and regulations include standards of
conduct applicable to
1. “No unauthorized social contact will be permitted at any time with guests,” and is misconduct, which could result in disciplinary action, including termination.
2. “Being present on company premises at any time other than the employee’s assigned work shift, unless specifically authorized by his/her supervisor or picking up paycheck,” and is misconduct, which could result in disciplinary action, including termination.
Similarly, the
Respondents have issued a “Staff Handbook (Collective Bargaining Unit Version).”
(handbook) (GC Exh. 10.) This handbook also contains provisions governing the
conduct of
1. Page 32. “Under no circumstances should staffmembers solicit guests, including requests for autographs, soliciting employment and other non-resort matters.”
2. Pages 37–38. “[S]olicitation of any kind of one staffmember by another is prohibited while either person is on working time or in a public or work area.”
3. Page 38. “Distribution by staffmembers of advertising materials, handbills, printed or written literature of any kind in working or public areas of our Resort is prohibited at all times.”
4. Page 33. “Should a staffmember wish to visit the Resort with family or friends, they may do so with the prior approval of their manager and Planning Committee Member. You will be required to have a ‘Return to Property’ pass.”
5. Pages 40–41. “The following are examples of behavior, which violate Turtle Bay Resort policies:”
i. “Presence in the Resort more than 30 minutes before or after your shift.”
ii. “Walking off the job will be considered voluntary termination.”
iii. “Refusing to cooperate during a company investigation.”
C. The Union’s Presence at the
and Management’s Reactions
1. February 12, 2004
On February 12,
2004, Marsh and Claire Shimabukuro, a community organizer for the
The parties
acknowledge that the beaches in
Dougher
testified that
Despite the
demonstrators remaining on the public beach, the noise from the demonstration
disturbed persons who were part of a wedding party at the resort. The groom and
the best man came down from the resort’s pool area where the wedding party was
congregating and confronted the group on the beach. The groom and the best man
were quite belligerent and threatening. They demanded that the demonstrators
leave the beach. They assaulted Marsh and Shimabukuro They tried to physically
pull the sign from Marsh, they wrested the bullhorn from Shimabukuro’s hands,
and they threatened to throw Shimabukuro into the ocean.
The resort’s
security officers observed these events without intervening. Finally, Thomas
Dougher, the chief of security, approached the wedding party members, asked
them to return to the pool area, and told them that he would handle the situation.
Dougher then had a brief discussion with Marsh. Dougher told Marsh, “This is
illegal. You shouldn’t be here. You have to leave.” (Tr. 905–906.) Marsh and
Shimabukuro led the group off Kawela beach, with the intention to resume the
demonstration on the public beach on the other side of the resort’s property,
known as the
The group then
left the Kawela beach, proceeded along the access road to the parking lot
toward the
As noted above,
all beaches in
However, the
security department had summoned
The Respondents
now contend that the
After being
threatened with arrest, the group started to disburse, and many of them proceeded
to their cars. Before Marsh could get into her car, Sergeant Lambert of the
Thus, by
February 2004, the relationship between the Respondents and the
2. February 14, 2004
On February 14,
Marsh came to the resort in accordance with her regular duties of meeting with
employees twice a week. Marsh’s usual routine is to enter the resort at the loading
dock, sign a register at the security dispatch office, walk through the ground
level and the lower level of the hotel to let employees know she is there, and
go to the employee cafeteria to meet with employees.
After Marsh
entered the employee cafeteria on February 14, she met with bargaining unit
members. As she was engaged in her discussions with the employees, Dougher
entered the cafeteria and told Marsh that she was not allowed on the resort’s
property because she was trespassing and she had already received a verbal
trespass notice on February 12. The security department notified the
The intent of
the Respondents in giving and issuing trespass notices to union representatives
was to exclude each such representative from the resort property for a period
of 1 year. Indeed, 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 trespass in the first degree,” which classifies such
an offense as a misdemeanor. Later notices stated that they were being issued
pursuant to section 708–814 of the Hawaii Revised Statutes, which is titled “Criminal
trespass in the second degree,” and classifies such an offense as a petty misdemeanor.
Section 708–814
provides that a person commits the offense of criminal trespass in the second
degree if the person unlawfully enters commercial premises within 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
3. February 18, 2004
On February 18,
Marsh was at the resort in accordance with her duties as a union representative.
She came to the resort with Shimabukuro. While Marsh and Shimabukuro were in
the employee cafeteria speaking to a unit member, security officer T. Lolotai approached
them, said they were being given trespass notices, and told them to leave. Lolotai
said that he had been ordered to call the
The Respondents
claim that Marsh and Shimabukuro failed to sign the register at the security
dispatch office when they entered the resort. However, Lolotai did not mention
the alleged failure to sign the register when he gave trespass notices to the
union representatives, and the Respondents do not claim that the alleged
failure to sign the register had any bearing on the trespass notices to Marsh
and Shimabukuro nor the Respondents’ attempt to criminalize their behavior by
summoning the
Dougher
acknowledges being told of Lee’s statements. Dougher also acknowledges that he
was not clear whether issuing trespass notices to the union representatives was
proper, and he admits having many discussions about this issue. Nevertheless,
he and his security officers, pursuant to his instructions, continued to issue
numerous trespass notices to union representatives.
4. March 25, 2004
On March 25,
approximately 50 people gathered outside the resort’s grounds, along the
While the group
was gathering in front of and entering
When the group
entered the resort’s property, the security officers gave them hand-drawn maps
of the resort. The group walked down the access road and met with a group of
approximately 20 resort employees in the parking lot. This group then split,
with the employees going to the left and down the access road to the
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
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
Security guard
Nagy was with Dougher on March 25 when the rally members came through the
lobby. He did not see anyone come in contact with Dougher. He did not see any
physical contacts between the rally members and any other person in the lobby.
Nagy stated that the banner being carried by some of the rally members came
into contact with him. Of course, this is not surprising since he placed
himself in front of the banner in order to stop the rally. However, he then
moved out of the way to let them pass. In addition, a
Dougher
testified at the hearing that he did not know the person who had kicked him in
the shin on March 25. However, in an affidavit he gave before the hearing,
Dougher identified that person. Dougher testified at the hearing that he had
instructed security officer Michael Carter to videotape union officials, and
that he had instructed Thomas Parks, the resort’s director of sales, to
videotape union representatives and employees who were participating in a demonstration
on the
Dougher
testified at the hearing to an alleged encounter with Marsh on January 27, 2005.
Dougher claims that Marsh was seated on a couch in the lobby, and he told her
that she should not talk to employees in the lobby because the hotel was particularly
busy that day. He claims that Marsh told him to go away and mind his own
business, and that he did nothing in response. He then followed Marsh as she
proceeded to the elevators and insisted she use another set of elevators, which
was difficult for Marsh because she was suffering from a bad back. Dougher
claims that Marsh did not tell him anything about being in physical discomfort.
However, in an affidavit he signed before the hearing, Dougher said that Marsh
did tell him about her bad back. Dougher’s treatment of Marsh when she was in
physical pain shows the pettiness to which the employer’s antiunion attitude
devolved. Dougher’s denial of any knowledge of Marsh’s physical pain in his
testimony, which is contrary to the testimony he gave in his sworn affidavit,
is further evidence of his lack of credibility.
Dougher
testified that on other occasions union representatives cursed at him and belittled
him, but that he did not react to such provocations. For example, Dougher
claims that shortly after he arrived at the resort in September 2001, he noticed
Eric Gill, the secretary-treasurer of the
This alleged
encounter is implausible and incredible. Marsh did not appear to be a person
who would be rude, much less rude with no provocation or reason. Moreover, this
event was supposedly the first time Marsh had met Dougher, increasing the
implausibility of Dougher’s testimony. Dougher’s testimony regarding his
initial encounter with Gill and Marsh at
Dougher related
other instances of Marsh’s alleged rudeness and crudeness. For example, on
February 14, Dougher told Marsh she could be trespassed for parking her car in
the bus area. Dougher claims that Marsh replied, “I’m leaving; screw you.” (Tr.
3452.) Dougher claims he said and did nothing in response. On June 11, 2004,
Dougher claims that he saw Marsh in the hotel’s kitchen, and he told her to
leave. He claims that Marsh replied, “God damn you. I’ll do what I please and I’ll
go where I please.” Again, Dougher claims he said and did nothing in response
to this outburst. (Tr. 3529.) Like the other examples cited herein, and considering
the demeanor of Marsh and Dougher, the foregoing testimony of Dougher is not
credible, both because Marsh’s demeanor was not consistent with such alleged
rudeness and because Dougher’s demeanor was not consistent with such meekness.
Another example
is Dougher’s alleged encounter with Daniel Kerwin, a union representative, in
April 2003. Dougher saw Kerwin walking to the bar in the pool area, and Dougher
followed him. Kerwin allegedly took out a camera and appeared to be taking pictures.
Dougher approached Kerwin. Kerwin then supposedly pushed and shoved Dougher,
and told Dougher that he could not bother Kerwin. Dougher elaborated on this
alleged incident as follows (Tr. 3376):
He [Kerwin] went right into my face and
he told me, “Go ahead. Hit me. And I’ll call the cops and I’ll sue your ass.
And if you think I’m screwing with you, go ahead and hit me.” And he kept
coming into me. I didn’t move and he kept coming into me. At that point, he’s
in my property. And I didn’t say anything more.
Kerwin is
allegedly on Dougher’s “property;” he is threatening Dougher; he is in Dougher’s
“face;” Dougher is the director of the security department and is a forceful
individual; yet Dougher did and said nothing. At best, this story is implausible
and incredible. Yet, Dougher recounted it with the same authoritative and
confident tone he imparted to all his testimony, including his testimony that
contradicted his previous sworn statements. In the end, one could not separate
fact from fiction in much of Dougher’s testimony.
Returning to the
March 25 rally, the demonstrators went through the lobby to the pool, which
leads to the
During the
demonstration on the beach, Dougher, who was stationed on the resort’s property
above the beach, held a video camera that he pointed at the demonstrators, as
if he were videotaping them. The demonstration on the beach lasted for
approximately 40 minutes.
Because of the
rally on March 25, the Respondents decided to follow or “shadow” (Tr. 2653) union representatives when they
came onto the resort. In addition, the Respondents incurred the expense of
continually having at least one security guard assigned to follow union
representatives even if union representatives were not present. Until the union
representative appeared, the assigned security guard was considered to be “floating.”
(Tr. 2311.)
The assigned
security officers closely followed the union representatives, often within
several feet. The security officers who were assigned to follow the union representatives
carried notebooks or logs on which they made notes of what the union
representatives were doing, including meetings with employees. Dougher told
Nagy, a supervisory security officer, that the reason for such monitoring was
the violence and dirty tactics used by the union on March 25.
Other security
guards gave different reasons to explain why the resort closely followed union
representatives whenever they came onto the property. Nagy said that the
monitoring was done to protect the guests and employees from any further incidents.
(Tr. 3191.) Nagy failed to explain how shadowing union representatives would
prevent another rally. Indeed, further rallies took place on the resort
property. Leeann Duque, the assistant director of security at
Neither the
union nor the demonstrators engaged in any violence on March 25. The Respondents’
reaction to the rally—to shadow union representatives whenever they came onto
the property—was neither effective nor focused nor reasonable. It was
retaliatory and was designed to intimidate and provoke the Union, while
interfering with the Union’s ability to perform its representation functions at
5. April 2, 2004
On April 2,
approximately 20 persons, most of whom were employees of the resort, gathered
at the entrance to the resort for a rally. The purpose of the rally was to
express the employees’ frustrations at the failure to secure a contract. The
rally was across
Dougher was
seated in his personal vehicle, which was parked at the entrance gate, across
the highway from the rally. Dougher held a video camera, which he pointed
toward the rally and the participants in the rally, as if he were videotaping
them. The members of the rally could see Dougher, and they believed he was videotaping
them. Other security guards were observing the rally, and they were seated in
golf carts at the entrance to the resort.
6. April 17, 2004
On April 17,
approximately 80 people, about half of whom were employees of the resort,
participated in a rally at the resort. The purpose of the rally was, again, to
express the participants’ frustrations at the failure to secure a contract. The
demonstrators met in the parking lot, and as they were gathering there, a
security guard, identified as Val, took pictures of the license plates on each
of their vehicles.
The rally
proceeded onto the beach where the participants held their signs and chanted
for approximately 40 minutes. There was no violence, or threats of violence, or
confrontations during the rally. While the rally was taking place on the beach,
a security guard, identified as Michael, was pointing a video camera at the
group as if he were videotaping the rally. In addition, Tom Parks, a sales
manager for the resort, held a video camera and pointed it at the group as if
he were videotaping them.
George Cox, a
maintenance employee at the resort for 23 years, testified to the facts
regarding this videotaping, as well as his conclusion that the participants
were, in fact, being videotaped. Counsel objected to the latter testimony on
the ground the witness was speculating. The objection was overruled, with the
proviso that the witness should explain the basis for his conclusion. This
ruling has been reconsidered and is affirmed. Cox’s testimony that videotaping
was taking place, while a conclusion, nevertheless reveals the witness’s perception
of what was occurring. Moreover, and without regard to the witness’s
conclusion, whether videotaping was actually taking place need not be resolved
in deciding the question of whether the Respondents’ actions constitute a
violation of Section 8(a)(1) of the Act because the Respondents’ actions would
be equally violative if they unlawfully surveilled or created the impression of
such surveillance.
7. May 4, 2004
On May 4, Marsh
was at the resort in accordance with her regular duties as a union
representative. Shimabukuro, who was accompanied by other union agents, also
came to the resort that day with a group of approximately 50 union retirees.
She escorted the retiree group to the Palm Terrace restaurant, one of the
restaurants at
The restaurant is
divided into three tiers. When the retirees entered, there were about 10
patrons of the restaurant seated in the upper tier. The retirees were seated in
the lowest tier. They ordered coffee or tea and had discussions at separate
tables. Marsh had coffee with the group, and she helped some members of the
group find the restroom and the way back to the bus. The retirees remained in
the restaurant for about an hour. As they were preparing to leave, Shimabukuro
briefly addressed them and thanked them for showing their support for
As Shimabukuro
was gathering her papers on the sidewalk in front of the hotel lobby, two
security guards approached her. They told her they were going to issue trespass
notices to her and to Marsh. The guards escorted Shimabukuro to the employee
cafeteria where Marsh was located. Marsh was conversing with several employees
on employment matters. Dougher then arrived with two
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
The security guards
escorted Marsh and Shimabukuro to their cars in the parking lot. The guards
then took pictures of the license plate of both Marsh’s car and Shimabukuro’s
car.
8. May 6 and 24, 2004
The
collective-bargaining agreement between the Respondents and the
On May 6, during
a telephone conversation, Ramos told Marsh that the union was not permitted to
collect its dues on the resort’s grounds because Ramos considered union dues collection
to constitute solicitation, and the Respondents had a “no solicitation” policy.
Ramos confirmed her statement in a letter to Marsh, which stated, “Please be
advised that we will not be allowing Business Agents or Local 5 staffing on property
to solicit union dues from our employees.” (GC Exh. 3A.)
Despite Ramos’s
reference to an alleged no-solicitation rule as the reason the
Please be advised that we will not be allowing Business Agents or Local 5 staffing on property to solicit union dues from our employees.
Thank you for your understanding. If you have any questions, please feel free to call me.
Ramos repeated
and stressed this unambiguous directive in another letter to Marsh dated
October 26, 2004. That letter states (GC Exh. 3(c)):
We have been advised that you will be on property on October 26th to collect Union dues from our employees in the cafeteria.
Please be advised that our position on this matter has not changed. We will not allow union dues to be collected on resort property. Also please note that I personally advised you that you would not be allowed on property to collect dues when we met on October 21, 2004. Your response to me during this time was “oh well I’ll be on the road”. Just so that there is no misunderstanding about this issue, our position is that there will be noo [sic] dues collecting on property.
Thank you for your understanding.
There is no
reference in the letters to the manner of dues collection. The prohibition of
dues collection is presented as a fait accompli. The language of the letters is
consistent with Ramos’s statements to Marsh, and is consistent with later
statements by Dougher and security guards when they prevented the Union from
collecting dues at
Moreover, there
is no evidence that the Union’s collection of dues at
In addition, the
Respondents did not enforce a no-solicitation policy against other companies,
organizations, or causes. For example, in 2005, Costco was permitted to
solicit, for membership, the resort’s employees in the cafeteria. Indeed,
fundraising was a common practice at the resort. The Respondents offered no
evidence of any time, other than against the
On May 24,
Jessie Cueva-Decoite, a senior dues clerk for the Union, and Clarence Baijo, a
business representative for the Union, went to
Two
9. June 2 and 7, 2004
On June 2, Marsh
went to
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
[Y]ou are hereby advised that your
presence is no longer desired on Turtle Bay Resort (“TBR”) premises and that
you are not to return to said premises for purposes of union dues collection or
solicitation or for any activities that are disruptive or interfere with the
normal conduct of TBR’s business, for a period of one (1) year, effective as of
the date indicated above.
This includes the entire grounds and premises of TBR . . . .
If you violate this Trespass Warning, you will be subject to arrest for the offense of Criminal Trespass in the Second Degree, Haw. Rev. Stat. § 708-814, which is a Petty Misdemeanor.
The Respondents’
form also contains spaces for individual physical characteristics of the person
to whom the trespass notice is given, under the heading “description of suspect.”
All subsequent
trespass notices from the Respondents to union representatives used this new
form. Dougher told her that the police officer was present to witness her
receipt of the trespass notice and to send it to the prosecutor’s office.
Dougher told Marsh that she was not going to be arrested at that time. The
police officer told Marsh that he was going to send the trespass notice to the
prosecutor’s office. Marsh had not disrupted any employees or interfered with
the work of any employees on June 7.
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
After Marsh
returned to the cafeteria, Dougher, Nagy, and a
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
throughout the resort. Hanohano remained 2–3 feet behind Marsh wherever she
went, including the employee cafeteria. When she went to the ladies’ room, he
stood outside the ladies’ room until Marsh came out.
Shadowing is an
accurate description of what the security guards were assigned to do and did as
they followed union representatives throughout
There is no
apparent reason why the Respondents’ security guards would follow Marsh or
other union representatives throughout the resort, including the parking lot
and the employee cafeteria. The security guards offered conflicting reasons at
the hearing for following the union representatives throughout the resort,
including protecting the facility, protecting the employees, and protecting the
union representatives. None of these alleged reasons withstands analysis or is
supported by the circumstances. In addition, and other than the security guards’
testimony at the hearing, the Respondents never explained these alleged reasons
to the union representatives. Moreover, it is uncertain whether the security
guards, other than Dougher, knew the reason why they were ordered to shadow the
union representatives.
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
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
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
On June 22,
Shimabukuro was at
The Respondents
cite handwriting on the trespass notice for its contention that the notice was
issued to “supersede[ ] [the] trespass warning issued [to Shimabukuro] on
5–4–04.” (GC Exh. 37B.) However, this contention ignores Dougher and Nagy’s
statements to Shimabukuro regarding her collection of dues before the trespass
notice was issued. Assuming that one of the purposes of the notice was to
supersede a prior notice, the circumstances demonstrate that Shimabukuro’s
collection of dues was also a cause for the issuance of the trespass notice.
Every time the
Respondents issued and handed a trespass notice to a union representative, the
Respondents summoned the
On at least one
occasion in June, Dougher told Marsh that she was banned from
12. August 6, 2004
Nate Santa Maria
was a representative for the
On August 6,
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
After they
exited the elevator in the upstairs kitchen,
Within 5
minutes, Ramos and Dougher, together with two managers and additional security
guards, arrived. They surrounded
Dougher accused
Then, three
The
confrontation in the kitchen involving the security guards, management, the
police officers and Santa Maria occurred in front of the employees who were working
there, as well as employees, such as waitresses, who entered the kitchen during
that time. The security guards followed
Fred Scalzo has
been a sous chef at
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
Scalzo claims
that
Sonia Evans is
the purchasing manager at
Evans’
credibility suffers further from her tendency to at least exaggerate events
that did happen or might have happened. For example, she claims that
It is necessary
to clarify what is meant by “a worker being disturbed” or “work being
interrupted” because of the possible implication of the access provision of the
collective-bargaining agreement, which provides that “there shall be no
interference with the normal conduct of business.” (GC Exh. 2.) These expressions
do not include a worker or a manager who does not like the union or does not
want to see union representatives in the workplace. These expressions also do
not include greetings between the union representatives and workers in the workplace.
Indeed, Ramos acknowledges that such greetings are allowed. The question is,
what additional conversation or disturbance, if any, is allowed before it
becomes disruptive. Rather than attempt to define the meaning of disturbance or
interruption, the meaning assigned by the Respondents will be used. That is,
discussions or conversations beyond greetings, which occur in working areas
between union representatives and workers, cause disturbances in the workplace.
Taking
Nevertheless,
the Respondents allege that
On balance, the
Respondents’ contention that
13. September 23, 2004
The complaint
alleges that on September 23, 2004, the Respondents, in the employee cafeteria
and in the presence of employees, unlawfully ordered Marsh to stop collecting
dues. (Complaint, par. 17(d).) Neither Marsh nor Shimabukuro testified about
this event. Dougher testified that Marsh and Shimabukuro were collecting dues
in the cafeteria, and they had put two tables together and removed the chairs
to facilitate the dues collection. Dougher approached them and told them that
collecting dues was disruptive and that they were not permitted to collect
dues. After Shimabukuro said that they had a right to collect dues, Dougher
said that moving the furniture was disruptive. Dougher’s credibility has been
considered above. His credibility is not enhanced by him shifting the alleged
basis for his disruption claim from collecting dues to moving furniture. It is
also apparent that moving the furniture was not the real reason Dougher was
attempting to prohibit Marsh and Shimabukuro from collecting dues. In late
2004, Dougher again told Marsh that the Union was not permitted to collect dues
at
The General
Counsel has not addressed the events on September 23 in the factual or legal
arguments in his posthearing brief. Accordingly, I conclude that the General
Counsel has abandoned this allegation in the complaint.
14. October 22, 2004
On October 22,
Butt distributed a memorandum to all
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
This memorandum
was distributed to all employees before a meeting was held concerning the
memorandum. The date of the meeting was not established. The meeting was open
to all employees, but not all employees attended. The memorandum was also distributed
at the meeting. At the meeting, Butt explained to the group that his prediction
of closing the resort was based on the economic fact that if the business
decreased and continued to decline, soon there would be nothing to work with.
15. January 19, 2005
Kimberly Harmon
began working as a business agent or organizer for the
After signing
in, Harmon would go to the employee cafeteria and meet with employees. Upon
completion of such meetings, she would walk through the work areas on the
ground and first floor levels of the hotel, much like Marsh’s practice. She
would greet the employees to let them know she is there, and she would return
to the cafeteria. The elapsed time between leaving the cafeteria and returning
is generally about 10 minutes.
On January 19,
Harmon, who did not yet know the bargaining unit members, and her supervisor,
Laura Moye, went to
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
16. January 27, 2005
On January 27,
Decoite drove Marsh to
As Marsh waited
for Decoite to return, Dougher, who was accompanied by a human resource
official, came up to Marsh and told her she was not allowed to sit on the couch
or to be in the lobby. Marsh explained that her back was causing her discomfort
and that she had trouble walking, and she was just waiting for Decoite to
return. At that point, Decoite entered the lobby, but she was stopped by
Dougher and was told to use the service entrance at the loading dock.
Marsh, with
Dougher following, then walked to the closest elevator to go down to the
cafeteria. Marsh entered the elevator, but before she could press the button to
go down, a guest entered and pushed the button to go up. Dougher then stood at
the threshold of the elevator to 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
As Marsh rested,
Dougher kept insisting that she get up from the bench and leave. Marsh asked
him if he would help her stand, and he refused. After about 20 minutes, Marsh
got up from the bench and, with Dougher still following, walked to the service
elevator. She and Dougher entered the service elevator and descended to the
lower level. Dougher left Marsh, and she went to the cafeteria and rejoined
Decoite.
17. January 28, 2005
At all times
before January 2005, the Respondents allowed union representatives who were at
the resort on official business to park in the parking lot of the resort
without charge. The Respondents were aware of this practice because a resort employee
is posted in the driveway kiosk at the entrance to the resort, and because when
union representatives would receive parking stickers from the attendant, the
representatives would validate the stickers at the security office or the human
resources office. Whether this long-standing practice was unusual or even a
benefit to the
On January 28,
2005, Robert Murphy, the Respondents’ attorney, sent a letter to the
18. In and after January 2005
Harmon has been
coming to
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
b.
On March 3, 2005, Harmon met Trellis and three other housekeepers in the
parking lot. These housekeepers’ shift had just ended and they were going home.
As Harmon, Trellis, and another housekeeper were trying to have a conversation
regarding work issues, a security guard named Rudy, who was in a golf cart,
drove past them and close to them. The housekeepers pulled Harmon out of the
way and toward a more protected location on the side of their parked car. Rudy
quickly came close to where they were, slowly passed them, and stopped at the
back of their parked car, about 3 to 10 feet away. Three of the housekeepers
got into the car, but Trellis continued to talk with Harmon. Rudy then said, “That’s
enough, that’s enough.” Trellis then ended her conversation with Harmon and got
into the car and departed. The housekeepers asked Harmon to call them at home.
c.
On March 3, 2005, Harmon was at
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
A security guard
named Joshua was watching Harmon and Dela Cruz when they were on the loading
dock. Dela Cruz was carrying the petitions in a bag, but after seeing that
Joshua was monitoring them, he did not give the petitions to Harmon. Instead,
Dela Cruz motioned for Harmon to follow him off the loading dock and into the
parking lot. As they walked through the parking lot, Joshua continued to follow
them, staying about 4–7 feet behind them. Dela Cruz and Harmon walked through
one parking lot and into the employee parking lot to Dela Cruz’s car, with
Joshua close behind. Dela Cruz placed his bag in his car, and as
inconspicuously as he was able, removed the petitions from the bag and gave
them to Harmon, all the while being monitored by Joshua.
19. March 5, 2005
On March 5,
Harmon went to
Harmon
eventually returned to the cafeteria. As she was sitting there waiting for more
employees to arrive, Dougher entered. Dougher walked directly to Harmon and
said in a loud voice that he can tell Harmon where she can and cannot go. He
repeatedly called her stupid. He told Harmon that she is not permitted to stop
employees from working. He said and repeated several times that he was going to
discipline any employee that Harmon talks to outside of the cafeteria. Harmon
wrote in her notebook some of Dougher’s comments. When he saw this, he became
even more enraged. Dougher asked Harmon what she was writing, and she said, “When
you do things like this, we write them down for the NLRB.” Dougher responded by
yelling, “The NLRB doesn’t run me, the NLRB doesn’t know what the hell is going
to [sic] here.” and “I’m not interested in the NLRB or the rights or anything
right now.” (Tr. 1481, 3558, 3684.) Employees were present in the cafeteria
throughout Dougher’s tirade.
Dougher left the
cafeteria, but he returned after several minutes. Dougher continued his crude
and nasty ranting at Harmon, adding that she was a liar. This latter epithet
apparently referred to Harmon’s statement to Dutson that she had a right to be
at
D. Discipline of Employees
1. May 30, 2005
Jeannie
Martinson is a hostess at the Palm Terrace Restaurant. She has been employed at
Several days
later, Toy’s managers, John Dutson and Joseph Maher, approached her and asked
her to follow them to the human resources office where they met with Ramos.
Dutson or Maher told Toy that he had heard that Toy had overheard Martinson’s
conversation with the cook. Toy then confirmed what she had overheard Martinson
say to the cook. Ramos suggested to Toy that such a statement threatened or
intimidated her, but Toy denied that she was threatened or intimidated. Neither
Ramos nor the managers asked Toy to provide a written statement.
On May 28,
approximately 1 week after Martinson’s reference to “scabs” in her conversation
with the cook, Ramos issued a memorandum to all
On May 30, Maher
delivered a “Corrective Action Form” to Martinson, correcting and warning her because
of her statement to the cook on May 22. (GC Exh. 21.) Maher and Ramos signed
the form in which they accuse Martinson of displaying “inappropriate, disrespectful,
and unjustified behavior towards a fellow employee by calling her a ‘scab.’”
The form also contains a threat that if such behavior should happen again,
Martinson could receive “decision making leave, or if your behavior is more
severe, a suspension/termination.”
2. June 10, 2005
Timothy Barron
is a banquet waiter at
On June 4,
Barron was leaving work at the end of the day and was “swiping out” at the
timeclock near the security dispatch window and the loading dock, as all
employees must do. Eric Baeseman, a valet who has been employed at
Barron asked
Baeseman if he had crossed the picket line on May 21. Baeseman said he did.
Barron said that people would think of Baeseman as a scab. Baeseman replied
that he had to feed his family. Barron reminded Baeseman that Barron and a number
of employees had not crossed the picket line, and that he also had to feed his
family. Baeseman said he would cross the picket line again if there were
another walkout, and Barron repeated that people would think of him as a scab.
Barron claims that he did not directly call Baeseman a scab, and that claim is
true. Barron said that others would regard Baeseman as a scab. However, as a
practical matter, the effect of Barron’s statements was to label Baeseman as a
scab even though Barron did not directly call Baeseman a scab. In any event,
Barron made no threats or physical gestures or contact with or toward anyone.
Baeseman was not
a credible witness when he was describing his encounter with Barron. In
describing what he claims occurred between himself and Barron, he was cheerful,
even flippant. When describing his reaction to Barron’s alleged statements,
Baeseman twice said, “I’m like whoa.” (Tr. 2093.) This testimony was given in a
casual, lighthearted tone, a tone that was inconsistent with the event being
described and with Baeseman’s alleged reaction to Barron’s comments. Indeed,
Baeseman claims that Barron called him a scab three times, making Baeseman feel
upset and uncomfortable, so uncomfortable that he immediately reported Barron’s
comments to Anthony Hite, a security guard. Baeseman continued his lighthearted
approach to this event by describing how he reported the event to Hite. Baeseman
testified that he told Hite, “I don’t appreciate what Tim is saying to me. He’s
calling me a scab, dah, dah, dah.” (Tr. 2095.) Again, the tone of this remark
was casual, even flippant. Moreover, Baeseman’s testimony likely does not
accurately describe what Baeseman actually told Hite.
Baeseman also
displayed a bias, vivified through exaggeration, similar to the tendencies
displayed by other
Baeseman claims
that Barron’s comments made Baeseman feel upset and uncomfortable. This
testimony is not credible, a conclusion supported by Baeseman’s demeanor in describing
the event. At most, Baeseman knew that the resort had recently issued a memorandum
saying that employees who cross the picket line should not be called scabs, and
since Barron told him that he was being called a scab, he could get Barron, a
shop steward in a union that Baeseman had just quit, in trouble by reporting
the event to the security department. Moreover, the fact that Baeseman
manufactured his reaction to Barron’s scab comment is shown by Baeseman’s
statement to Barron, after they both had completed security office reports on
the incident, that “it’s up to me to let it [Barron’s comment] bother me.” (Tr.
2098.)
The practical difference
between Barron’s description of the event and Baeseman’s description is not as
great as the technical difference. Practically, Barron told Baeseman that
others regarded him as a scab. However, Baeseman knew that Barron was
associated with many people who considered Baeseman to be a scab. Nevertheless,
Barron did not actually call Baeseman a scab. Baeseman may not have appreciated
the difference at the time, but perhaps he would have if he had not so quickly
reported Barron to the security department. In its ongoing dispute with the
Union, the Respondents developed a climate at
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” because Barron was swiping out wearing his regular clothes.
The next day,
June 5, Hite solicited Baeseman to fill out another report. This second report
deals with comments between Baeseman and Barron as they were leaving the security
office on June 4. Barron told Baeseman that he could call Baeseman a scab in
public, i.e., off
On June 10,
Barron came to work, and as he entered the hotel, several security guards met
him at the loading dock. One guard, Nagy, escorted Barron to Dougher’s office.
Dougher allowed Harmon to represent Barron. Dougher asked Barron what happened
on June 4, and Barron told him what occurred, consistent with the report Barron
had filed. (GC Exh. 34.) Dougher told Barron that he was being suspended
pending an investigation, and followed up with a written notice of Barron’s suspension.
On June 11,
Ramos met in her office with Barron, who was represented by Moye and Harmon.
Barron provided a more complete, written report of the June 4 conversation between
himself and Baeseman. Ramos upheld the suspension imposed by Dougher and set a
return to work date of June 15. Accordingly, Barron was suspended for 5 days.
In upholding Dougher’s suspension, Ramos made clear that the reason for the
suspension was Barron having called Baeseman a scab more than once on June 4.
(GC Exh. 24.) Barron was suspended for 5 days without pay. This is the first
time Barron had received any discipline in his 28 years at the resort.
When Barron
first explained his remarks to Hite, he said that his statement to Baeseman
about a scab referred to a wound that he had on his hand. This explanation was
not truthful. Indeed, under these circumstances, the explanation was ludicrous.
The question is what effect this false explanation has on Barron’s credibility.
Barron’s
encounter with Baeseman at the security dispatch window occurred about a week
after Ramos’s May 28 memorandum dealing with employee conduct. In that memorandum,
Ramos cited the word “scab” as the only example of what one employee should not
call another. (GC Exh. 22.) Both Barron and Baeseman knew about the memorandum.
The union-management relationship at
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
Within
approximately 1 month of Feltman’s complaint against Marsh, Ramos had a discussion
with Henry Lacar about Feltman, and they agreed that Feltman was a good employee.
They discussed raising Feltman’s pay. Ramos then told Feltman he was doing a
good job at the hotel and his supervisor, Lacar, was pleased with Feltman’s
work. Ramos also told Feltman that he might be getting a raise in pay, which
would be above the limits established in the current collective-bargaining agreement.
She told Feltman to keep up the good work.
Feltman never
did receive a pay raise. On February 22, 2005, Feltman came to Ramos’s office
to pick up his lunch ticket. He was wearing a union button. Ramos was surprised
and commented that Feltman was wearing a union button. Ramos said, “I thought
you signed the antiboycott petition that Roger Corpuz was circulating around
the hotel.” Feltman said, “No,” and Ramos replied, “Oh, oh.” (Tr. 516.)
On March 3,
2005, Feltman again went to Ramos’s office to pick up a lunch ticket. He was
wearing a union button. He met Sandi Grundmanis, the training manager in the
human resources department. Grundmanis saw the union button and told Feltman, “I
thought you were [a] more sensible guy, but who am I.” (Tr. 517.)
On May 21, Feltman
participated in the 1-day strike by walking the picket line with other
employees in front of the resort. Feltman walked the picket line from 5:30 a.m.
to 6:30 p.m. Dougher was present throughout the day observing the picketers. At
one point during that day, Feltman was having a conversation with his uncle who
was staying at
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
When Mendivil
came to work on June 10, he was “feeling good.” (Tr. 2450.) Security guard
Kamalani Keliikuli approached him, and she asked if he was all right. She said
to Mendivil, “If anyone bothers you, you let the security know.” She also said,
“You know, there are four union representatives here, and, if anything happens,
you let us know.” (Tr. 2439.) At this point, Mendivil started feeling scared.
Mendivil went to the cafeteria, and he saw four union representatives there.
The union representatives made no statements to or gestures toward Mendivil.
Indeed, Mendivil told Keliikuli that the union representatives had not seen
him. Nevertheless, Mendivil claims that he remained scared.
Mendivil exited
the cafeteria, went to the bulletin board that was posted in the hallway next
to the security office and the human resources office, and began reading some
of the postings. Feltman had just exited the men’s room on the lower level of
the hotel and was returning to the maintenance shop. He passed behind Mendivil
who was reading notices on the bulletin board.
As Feltman was walking by Mendivil, he greeted Mendivil by saying, “Howz
it,” a local expression meaning how are you. Mendivil said, “[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 continued walking back toward the
maintenance shop. Feltman states that after Mendivil shrugged his shoulders,
but did not otherwise respond to Feltman’s question about court, he continued
walking back to the maintenance shop without saying anything further.
Mendivil
immediately left the building and went to his work area where he told Cano what
had happened. Cano is the director of housekeeping. Cano called Dougher at the
security office and reported what Mendivil had told her. Cano then told Mendivil
to go to the security office and fill out a report on what Feltman had said.
Mendivil went to the security office, and Cano followed him “to give him
support.” (Tr. 2368.) Before Mendivil reached the security office, he met
Dougher who was coming from that office. Dougher was responding to Cano’s
telephone call and was going to see Feltman. After Mendivil arrived at the security
office, he claims that he was so disturbed by Feltman’s statement that he was
unable to express himself. This claim is not credible because Mendivil was observed
when he was waiting in the security office for Cano to arrive. Mendivil was
calm and appeared to be patiently waiting for his turn. In any event, when Cano
arrived, she offered to write the report for Mendivil, and he agreed. In Cano’s
report, she wrote that Feltman said, “[F]—ing ass” to Mendivil before walking
away. (R. Exh. 18.)
Dougher went to
the maintenance shop and told Feltman, “I need to talk to you. You probably
need a representative. Derek said you harassed him in the hallway. But I can
tell you right now, I[‘ll] meet you in your boss’s office in ten minutes.” (Tr.
531.) Feltman went to the cafeteria. Gill happened to be present in the
cafeteria with Harmon and Moye, and Gill agreed to represent Feltman. The
meeting was held in Lacar’s office with Dougher, Lacar, Cano, Mendivil,
Feltman, and Gill. Dougher was waiting for Cano and Mendivil, so he did not
begin the meeting until they arrived. When Cano entered, she handed the report
she had written for Mendivil to Dougher.
Dougher read the
report aloud. He then handed the report to Gill for him to read. Dougher asked
Feltman to explain what happened. Feltman explained, but he did not admit to
having cursed at Mendivil. Nevertheless, Feltman’s statement to Dougher does
not appear to have had any impact on Dougher’s decision. Dougher stated that
Feltman was suspended pending investigation because Feltman had violated the
Respondents’ “zero-tolerance policy” on harassment, retaliation, and workplace
violence.
Dougher
explained that the Respondents’ zero-tolerance policy meant that
There is no
evidence that Mendivil was actually upset or agitated during the meeting in
Cano’s office, nor any evidence that he displayed those characteristics. After
the meeting, Mendivil was escorted back to the security office to fill out an
injury report. (GC Exh. 26.) Mendivil claims that at the time he completed this
report, he “felt scared and terrified, and I was all shaken up, and I couldn’t
concentrate.” (Tr. 2427.) This injury report is the only written report of the
incident completed by Mendivil, and he does not mention that Feltman cursed at
him in the hallway. In Mendivil’s report, the only listed cause for his alleged
distress was his being required the day before to go to court and testify.
After Mendivil
completed the injury report, Cano told him to go to the emergency room at the
local hospital. Accordingly, Mendivil went to the emergency room. Security
guard Keliikuli followed Mendivil to the hospital because Mendivil requested
that she accompany him. Mendivil felt it would be easier for him if the
security guard were there to tell the doctor what had occurred. It should be
noted that, after his encounter with Feltman, the first three times Mendivil
was asked to tell what happened, he twice had someone else tell the story. And,
the one time Mendivil wrote his own report, he failed to mention that Feltman
had cursed at him.
Keliikuli told
the emergency room physician, Dr. Moire, of the circumstances surrounding
Mendivil’s injury. Moire recommended that a coworker should be present while
Keliikuli explained what had occurred, but no coworker was brought in. Moire
said that Mendivil’s injury did not warrant any time off from work and she was
reluctant to approve it. However, Mendivil and Keliikuli persisted, and Moire
did approve time off for Mendivil. Mendivil then stayed out of work for a week.
The next day,
Ramos, who had been off the island, scheduled a meeting in her office to
discuss Feltman’s suspension. Present at the meeting were Ramos, Feltman,
Harmon, and Moye. Feltman explained to Ramos what had occurred during his encounter
with Mendivil, which was the same explanation he had given to Dougher the day
before. Ramos said that she would conduct a full investigation and would
contact Moye and Harmon.
There is no
evidence that Ramos conducted any investigation into the encounter between Mendivil
and Feltman. However, she did discover from Lacar, assuming she did not already
know, that Feltman participated in the 1-day strike and walked the
In considering
whether Ramos’s assertion that Feltman had committed a federal crime is
reasonable or whether Ramos’s assertion is a pretext for the Respondents’ real
reason for terminating Feltman, the first question is whether Feltman actually
called Mendivil a “f—ing ass.” The preponderance of the evidence supports
Feltman’s claim that he did not.
Mendivil
professes to have such a weak constitution that, on the basis of a fellow employee
calling him a “f—ing ass,” he becomes so emotionally distraught that he goes to
a hospital emergency room. Mendivil compounds that exaggerated and extravagant
reaction by staying out of work for 1 week because of his “injury.” The
Respondents have not objected to Mendivil’s overblown reactions. Indeed, the
Respondents have supported and encouraged Mendivil’s reactions, at least in
part because of the appearance of legitimacy those reactions give to the
Respondents’ discipline of Feltman. In other words, since Mendivil went to the
hospital and stayed out of work for a week, surely Feltman must have done something
wrong, if not criminal.
There are
several reasons why Mendivil’s present account of the incident is not credible.
First, Mendivil’s demeanor showed him to be impressionable and unassertive.
Mendivil presented as a submissive person who would be susceptible to authoritative
and authority figures. Thus, Mendivil did not even complete the initial report
of his encounter with Feltman. Instead, Cano completed the report for him.
Moreover, Mendivil is a family friend of Cano, Mendivil’s father is a friend of
Cano, and Mendivil went to school with Cano’s son. Mendivil and Cano are known
to be good friends. (Tr. 2512.) In addition, Mendivil wanted a security guard
to accompany him to the hospital in order to tell the emergency room physician
what had happened.
Although Cano
wrote the report for Mendivil, her reliability is problematic. For example,
Cano testified that she wrote her own report of the incident between Mendivil
and Feltman on June 10. A day or two later, Ramos told Cano that Cano’s report
had been lost, and Ramos requested Cano to prepare another report. Cano
testified that she then prepared a second report, which she did completely from
memory, and that she used no documents to help her in preparing the second report.
Cano repeated this testimony on direct and on cross-examination. Ramos later
found Cano’s first report. An examination of the two reports shows that the
first 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 in this tense and
vulnerable state brought on by the Respondents, he had a brief encounter with
Feltman.
For all these
reasons, Mendivil would likely accept the truth of whatever Cano wrote for him
in her report. At the least, there is substantial confusion between what is
contained in that report and what Mendivil might independently remember. Also,
while Cano wrote in her report that Feltman cursed at Mendivil, Mendivil failed
to mention Feltman’s curse in the one report Mendivil wrote after the encounter.
On balance, Mendivil was not credible when he testified that Feltman cursed at
him as Feltman was passing by Mendivil at the bulletin board.
Adding further
confusion to Mendivil’s claim at the hearing that Feltman called him a “f—ing
ass” is Mendivil’s accusation that another employee, David Stone, called him
the same name on a previous occasion. Mendivil claims that Stone squirted
Mendivil with a water gun and called Mendivil a “f—ing ass.” Stone received no
discipline for these actions. Curiously, there is no evidence that Mendivil
went to the hospital after Stone called him this name, nor is there any
evidence that Mendivil took a week off from work after Stone called him this
name. However, the lack of such outlandish reactions could possibly be
explained by the fact that Cano did not tell Mendivil to go to the hospital
after Mendivil’s encounter with Stone, but Cano did tell Mendivil to go to the
hospital after Mendivil’s encounter with Feltman. Nevertheless, this latter
explanation tends to show that the Respondents were otherwise motivated to
punish Feltman, but they were not similarly motivated to punish Stone.
Alternatively,
Mendivil’s failure to go to the hospital after Stone called him a “f—ing ass”
tends to show that neither Stone nor Feltman called Mendivil a “f—ing ass.” The
coincidence between the events, with Mendivil being called the exact same name
at different times by different persons, strains credulity. Moreover, this
conclusion explains Mendivil’s widely divergent reactions to the same epithet.
In any event, Mendivil claims that two different employees called him the same
name on two different occasions and allegedly for two different reasons. In
light of Mendivil’s impressionable nature, and the suggestive and solicitous
actions of Cano and the security guards, it is also possible that Mendivil
confused the incidents and attributed to Feltman what Stone had previously
called Mendivil. Both of the foregoing explanations are consistent with
Mendivil’s demeanor, which was marked by hesitancy, unease, and obsequiousness.
In short, Mendivil was not a credible witness.
Considering all
of the circumstances, I conclude that the following occurred at Mendivil’s
meeting with Feltman. After talking with the security guard, Mendivil became
upset and scared. Feltman saw Mendivil and asked him how his day at court was.
This increased Mendivil’s fright. Feltman did not say “f—ing ass” to Mendivil.
However, because Mendivil had been told by a hotel manager to report to his
supervisor if anyone asked him about his day in court, and because the security
guard had solicited Mendivil to report any union person who bothered him,
Mendivil went to his supervisor, Cano. Sometime after talking with Cano and
Dougher, but not before completing his own report of the incident, Mendivil
became convinced that Feltman had called him a “f—ing ass,” possibly confusing
his previous Stone encounter with his present Feltman encounter. Mendivil did
not appear to be a person who would prevaricate about his encounter with
Feltman. However, Mendivil also did not appear to be a person who was fully in
control of his thoughts, and to that extent, his recollection.
In addition,
Mendivil had previously complained to his managers about another employee, Aso
Lautalo, who Mendivil reported had pushed and harassed him. Like Stone, and
despite the Respondents’ claim of having a zero-tolerance policy for
harassment, Lautalo received no discipline for this harassment and physical
assault.
With respect to
Mendivil’s allegation that Feltman cursed at him, Ramos acknowledged that employees
quite frequently use “f—,” and if she suspended employees, much less terminated
them, for such conduct she “wouldn’t have a staff, honestly.” (Tr. 432.)
Accordingly, the Respondents treat instances of cursing between employees by
either imposing no discipline (Stone) or imposing discipline that is less
severe than termination. For example, Geronimo Pinacate was suspended for repeatedly
using f— to a coworker, and for continuing to use such profanity after he was
told to stop. Also, on May 21, 2005, Kaleo Delosantos, while crossing the
picket line, told an employee on the picket line to “f— off.” Delosantos
received a written warning for this conduct. There is no evidence that any
employee has been terminated for cursing, except Feltman. Moreover, Feltman did
not first receive a written warning or any other form of progressive discipline.
Ramos’s
protestation of honesty insofar as her assertion that she would not be able to
maintain a staff if she disciplined every employee who said “f—” on the job warrants
an explanation of why Ramos otherwise was not a credible witness at the present
hearing. Ramos was the Respondents’ designated representative to assist the
Respondents’ attorneys during the hearing. Accordingly, Ramos was permitted to
remain in the hearing room throughout the trial. A rule on witnesses was
granted at the beginning of the hearing and was explained to Ramos while she
was on the witness stand. Ramos was instructed that the rule on witnesses “means
that anyone who is in the hearing, when they get off the witness stand, whether
they are going to get back on or not, cannot talk to anybody else who is going
to be a witness about the things that went on in the hearing.” (Tr. 203.)
Moreover, Ramos heard this same or similar instruction repeated to every
witness at the hearing.
Ramos was also
present when the purpose of the order was explained (Tr. 272):
. . . the reason is, is that by
discussing it [testimony in the hearing] with other people, you run the risk of
having people who will be witnesses hearing what has occurred in this courtroom
and then having them or having us risk those people conforming their testimony
to the testimony that has already been given or, on the other hand, not
conforming it but making it different from the testimony that has already been
given.
Our intent and desire is to have the testimony of witnesses with as much integrity as is possible. We want to have a good, clean hearing so that everyone’s rights are protected. So by talking about the testimony before the hearing is over, you run the risk of someone, I don’t know the right word, but poisoning the hearing, poisoning the testimony that might come later on.
Thus, Ramos knew
what the order prevented her from doing, and knew that the purpose of the order
was to insure a proper hearing where everyone’s rights would be protected.
The present
hearing was held in two sessions, covering 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
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 transcripts on Ramos’s computer.
Ramos also printed hard copies of the transcript for Farrell. Moreover, Ramos
shredded the transcripts after Farrell returned them to Ramos’s office, indicating
that Ramos knew she had violated the order against disclosure and was
destroying the evidence of her violation.
Ramos
deliberately and willfully violated this judge’s order prohibiting the
disclosure of witnesses’ testimony. Moreover, neither Ramos nor the Respondents’
attorneys disclosed Ramos’s violation of the order. Rather, Farrell disclosed
this on cross-examination. Indeed, Farrell disclosed the violation in a casual,
off-hand manner, indicating that Farrell was not aware of the order during her
testimony, and/or that Ramos routinely violated the order.
It is one thing
for a single witness to violate an order prohibiting the disclosure of
testimony to prospective witnesses. But it is another matter when the
Respondents’ designated representative—who was present for the entire hearing
and heard the testimony of all the General Counsel’s witnesses, who is Turtle
Bay’s director of human resources, and therefore possesses substantial
authority over the employees at Turtle Bay, who was individually instructed not
to disclose testimony, and who heard similar instructions given to every other
witness—violates the order and does so in such a deliberate, calculated manner.
On balance, and considering Ramos’s demeanor and her actions away from the
witness stand, Ramos was not a credible witness during the present hearing.
Even if one were
to accept the truth of the Respondents’ charge against Feltman, viz, that he
said, “f—ing ass” to Mendivil, there is a substantial question concerning what
Feltman was referring to. It is undisputed that Feltman asked Mendivil, “How
was court yesterday,” and that Mendivil did not answer Feltman. If Feltman then
called Mendivil a “f—ing ass,” he could just as likely, or more likely, have
been referring to Mendivil’s refusal to answer him as anything else. Indeed,
the alleged epithet immediately followed Mendivil’s refusal to answer, not the
reference to federal court. Moreover, Feltman made no reference to Mendivil’s
status as a witness in the Federal court case. Under the circumstances, it is
equally likely that Feltman was referring to Mendivil’s refusal to answer, not
Mendivil’s status as a witness in federal court. Nevertheless, the Respondents
promptly, and apparently without question, charged Feltman with threatening
Mendivil because Mendivil had testified in Federal court.
Finally, the reasonableness
of the Respondents’ charge against Feltman suffers from the presumptiveness and
guesswork in labeling the epithet “f—ing ass” a threat. Calling someone a f—ing
ass is not a threat. It rather crudely expresses an opinion, but it is not a
threat. On the other hand, the Respondents have demonstrated that they
recognize a threat when it occurs, such as when Baeseman told a coworker, “This
is bullshit and you better back off.” Yet, for this threat, the Respondents did
not discharge Baeseman.
E. The
On April 28,
2004, the Union sent a letter to the Respondents, through their attorney,
requesting information pertaining to condominiums that
On September 13,
2004, the
iv. analysis
A. Requests for Information—Complaint
Paragraphs 7,
8, and 9
“There can be no
question of the general obligation of an employer to provide information that
is needed by the bargaining representative for the proper performance of its duties.”
NLRB v. Acme Industrial Co., 385
The standard for
relevancy is a liberal, “discovery-type standard.” NLRB v. Acme Industrial
Co, 385
Information
pertaining to employees within the bargaining unit is presumptively relevant. Postal
Service, 332 NLRB 635 (2000). On the other hand, the union must show the
relevance of information that does not concern employees in the bargaining
unit. In keeping with the liberal standard of relevance, this burden is not a
heavy one and only requires the union to demonstrate more than a mere suspicion
of the matter for which the information is sought. Sheraton Hartford Hotel,
289 NLRB 463 (1988); United Graphics,
281 NLRB 463, 465 (1986) (“Although the union has the burden of proving the
relevance of information concerning employees outside the bargaining unit, the
standard for relevancy is the same ‘liberal discovery-type standard’ in all
cases.”). Moreover, “information concerning subcontracting of unit work is
relevant to a union’s performance of its representational functions.” Island
Creek Coal Co., 292 NLRB 480, 492 fn. 18 (1989).
With respect to
the
An employer has
a duty to timely furnish information requested by the union. Woodland Clinic,
331 NLRB 735 (2000). This duty requires the employer to furnish the information
“as promptly as possible.” Pennco, Inc., 212 NLRB 677, 678 (1974). An
unreasonable delay in responding to an information request can be just as
violative of the Act as an outright refusal to produce. Control Services,
315 NLRB 431 (1994). Also, the Respondents and the
The Respondents’
defense that it did not have the requested information is incomplete because
the Respondents’ failed to provide the information that was immediately available,
such as whether Turtle Bay had any current plans to convert hotel rooms to
other uses, including condos or timeshares. The Respondents’ defense also fails
to explain or account for its delay in providing the information from
approximately May to September 2005. An unreasonable delay in providing information
is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish
the information at all. Amersig Graphics, Inc., 334 NLRB 880, 885
(2001); Valley Inventory Service, 295 NLRB 1163 (1989);
The wage
information requested by the
B. Rules and
Employees—Complaint Paragraph 24
1. Handbook, pages
32; rules and regulations, page 2. In determining whether the maintenance of
certain work rules violates Section 8(a)(1) of the Act, “the appropriate
inquiry is whether the rules would reasonably tend to chill employees in the
exercise of their Section 7 rights.”
The General
Counsel maintains that the following handbook rule is overly broad and vague,
and encroaches in employees’ Section 7 rights to communicate with the public
and with guests concerning working conditions: “Under no circumstances should
staffmembers solicit guests, including requests for autographs, soliciting
employment and other non-resort matters.” In advancing its contention, the
General Counsel omits the concluding phrase of the prohibition. However, by
parsing the prohibition’s wording and omitting the concluding phrase, the
General Counsel contravenes the Board’s instruction to refrain from reading
phrases in isolation.
The initial part
of the prohibition, “under no circumstances should staffmembers solicit guests,”
is problematic, and, in isolation, would appear to encroach on employees’ Section
7 rights. However, the prohibition must be read with its modifying phrase,
which identifies the particular solicitations that are being prohibited. Thus,
the types of solicitations being proscribed are autographs, requests for employment,
and other nonresort matters. Employees would not reasonably conclude that the
prohibition includes protected, Section 7 matters.
Accordingly, the
rule on page 32 of the handbook does not unlawfully tend to chill employees in
the exercise of their Section 7 rights.
The Respondents
also maintain a rule that provides:
Being present at guest functions or in
guest rooms, including sleeping rooms, restaurant, lounges, meeting rooms, or
recreation facilities without authorization. No unauthorized social contact
will be permitted at any time with guests.
Again, the
General Counsel challenges the validity of the rule by citing a portion of the
rule. Nevertheless, the question is close because the unabridged sentence
prohibits social contact without qualification. See Cintas Corp., 344 NLRB 943 (2005) (“We agree with the
judge that the rule’s unqualified prohibition of the release of ‘any
information’ regarding ‘its partners’ could be reasonably construed by employees
to restrict discussion of wages and other terms and conditions of employment.”).
However, the charged sentence is preceded by examples that would reasonably be
read to explain what is meant by “social contact.” The examples include being
present at guest functions or in guest rooms, including sleeping rooms, restaurant,
and lounges. In light of these examples, “employees would reasonably understand
the rule to prohibit only personal entanglements, rather than activity
protected by the Act.” Guardsmark, LLC, 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 reasonably be read to
include and infringe on employees’ Section 7 rights.
2. Handbook,
pages 37–38. “The governing principle is that a rule is presumptively invalid
if it prohibits solicitation on the employees’ own time.” Our Way, Inc.,
268 NLRB 394 (1983). Moreover, rules banning solicitation during working time
must “state with sufficient clarity that employees may solicit on their own
time.”
The Respondents’
handbook provides that “solicitation of any kind of one staffmember by another
is prohibited while either person is on working time or in a public or work
area.” Therefore, employees are prohibited, among other things, from seeking
mutual aid from one another concerning their working conditions. The
prohibition makes no distinction between public or work areas in the resort.
The Respondents have offered no business justification for their maintenance of
this rule. (Indeed, the Respondents have offered no business justification(s)
for any of their employee rules. See R. Br. 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 restaurant and cocktail
lounge) and limited the employee activities to which it applied (entertaining
friends or guests). The present rule contains neither of these limitations. It
applies indiscriminately to the “Resort,” and it is not limited to any particular
purpose, such as entertainment. Thus, under the present rule, employees are not
permitted to visit any part of the resort with family or friends without prior
approval and without securing a “Return to Property” pass.
The Lafayette Park Hotel rule limited its
reach to the entertainment of friends or guests, and it corroborated that intent
by limiting its application to the hotel restaurant and cocktail lounge.
Accordingly, the Board found that “a reasonable employee would not interpret
this rule as requiring prior approval for Section 7 activity.”
A rule that “requires
employees to secure permission from their employer prior to engaging in
protected concerted activities on an employee’s free time and in nonwork areas
is unlawful. Teletech Holdings, Inc., 333 NLRB 402, 403 (2001). Accordingly,
the Respondents’ access rule is unlawful.
“Finally, except
where justified by business reasons, a rule which denies off-duty employees
entry to parking lots, gates, and other outside nonworking areas will be found
invalid.”
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 employees’ “[p]resence in the Resort more
than 30 minutes before or after your shift.” Accordingly, this rule unlawfully
restricts employees’ Section 7 rights, and violates Section 8(a)(1) of the Act.
(b) The
Respondents’ also maintain a rule in their rules and regulations, which provides
that “[b]eing present on company premises at any time other than the employee’s
assigned work shift, unless specifically authorized by his/her supervisor or
picking up paycheck” is misconduct, which could result in disciplinary action,
including termination. Although this rule uses the term “premises,” the
previous rule used the term “property,” and other rules use the term “Resort,”
there does not appear to be any distinction in the terms, either as used by the
Respondents or in general. See Teletech Holdings, Inc., 333 NLRB at 404
(a rule prohibiting presence on the employer’s “premises” while off duty was
found to include parking lots, gates, and other outside nonworking areas); Ark
Las Vegas Restaurant, 343 NLRB at 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
unlawfully restricts employees’ Section 7 rights, and violates Section 8(a)(1)
of the Act.
(c) An employer’s
rule that prohibits employees from walking off the job is overbroad and in
violation of the Act. Labor Ready, Inc., 331 NLRB 1656 (2000). The Respondents’ rule provides that “[w]alking
off the job will be considered voluntary termination.” Accordingly, the
Respondents’ rule is overbroad and in violation of the Act.
(d) In Grandview
Health Care Center, 332 NLRB 347, 349 (2000), the Board stated:
By compelling employees to cooperate in
unfair labor practice investigations, or risk discipline, the Respondent’s rule
violates the longstanding principle, established in Johnnie’s Poultry, that
employees may not be subjected to employer interrogations, relating to Section
7 activity, that reasonably tend to coerce them to make statements adverse to
their Section 7 interests, those of a fellow employee, or those of their union.
If the employees’ Section 7 right of mutual protection is to be safeguarded,
cooperation must be voluntary. Failure to inform employees of the voluntary
nature of the employer’s investigation is ‘a clear violation of Section 8(a)(1)
of the Act.
The Respondents’
rule provides that a violation of
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 promulgating an unlawful rule with maintaining an
unlawful rule. Both of these actions are distinct, both may be unlawful, and,
if so, both would involve illegal actions that occur at different times. An
employer may violate the Act by promulgating an unlawful rule, for which the
violation would generally occur on the date the rule is promulgated. On the
other hand, an employer may also violate the Act by maintaining an unlawful
rule, and that violation continues throughout the period the unlawful rule is
maintained. See, e.g., Lafayette Park Hotel, 326 NLRB at 825. To accept
the Respondents’ argument would render the Board powerless to remedy the
Respondents’ unlawful work rules that continue to coerce employees in the exercise
of their protected rights, effectively granting the Respondents a license to
violate the Act. See Alamo Cement Co., 277 NLRB 1031, 1037 (1985).
The complaint
charges that the Respondents promulgated and maintained unlawful rules. The
Respondents’ have been found to have unlawfully maintained those rules, not to
have unlawfully promulgated those rules. Section 10(b) may insulate the
Respondents’ promulgation of their unlawful rules, but the maintenance of those
rules within 6 months of the filing of the charges in this case renders the
present action timely.
The Respondents
also contend that there is no evidence they have imposed discipline under the
rules at issue, and accordingly, any violation of the Act from the maintenance
of those rules is de minimus.
However, “[i]t is axiomatic that merely maintaining an overly broad rule violates
the Act.”
C. Restricting the Union’s Access to
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 representatives to visit Frontier’s property “to see that this
Agreement is being enforced and to collect union dues, assessments and initiation
fees, provided that such visits by Union representatives shall not interfere
with the conduct of the Employer’s business or with the performance of work by
employees during their working hours.”
Frontier
expelled three union representatives who, Frontier claimed, had engaged in improper
conduct exceeding the bounds of the negotiated access provision. The Board affirmed
the judge’s finding and ruling that Frontier had no or flimsy grounds on which
to expel the union representatives, leading to the inference that they were
expelled to inhibit the union from communicating with its membership, in
violation of Section 8(a)(1). The Board also affirmed the judge’s finding and
ruling that one or more of the expulsions were done in the presence of
employees, warranting the conclusion that such expulsions had interfered with
union-related communications or coerced and restrained employees who were
engaging in union activity, in violation of Section 8(a)(1). The Board also
affirmed the judge’s conclusion and ruling that the expulsions deprived employees
of their contractually granted access to their bargaining representative, the
expulsions constituted a unilateral change of a material term or condition of
employment, and the expulsions tended to interfere with the representational
process, in violation of Section 8(a)(5).
On February 14
and 18, May 4 and 24, June 2, 7, 11, 12, 15, 17, and 22, 2004, January 27,
and March 5, 2005, the Respondents told union representatives, who were performing
their duties at Turtle Bay, that the union representatives were trespassing
and/or that the union representatives had no right to be at Turtle Bay. On each
of these occasions, the Respondents sought the assistance of
The union access
provision of the collective-bargaining agreement does not restrict where union
representatives may go in the resort. It sets forth the reason union representatives
are granted access, which is “to carry on their duties,” but the term “duties”
is not defined or otherwise limited. See
Gilliam Candy Co., 282 NLRB 624 (1987) (an access provision that permitted
the union representative to enter the plant “on business,” but did not
otherwise define or qualify the term, was interpreted broadly, or, at least, at
face value, to include a visit to investigate the circulation of a decertification
petition, a visit to talk to employees, and a visit to serve internal union
charges on an employee). There are two qualifications in the access provision:
(1) the union representatives must first notify the resort when they arrive,7 and (2) “there shall be no interference
with the normal conduct of business.” To clarify, the access provision does not
proscribe any and every interference with business, only interference with the “normal
conduct of business.”
There is no
credible evidence that Marsh or other union representatives caused any
interference with the Respondents’ normal conduct of business on February 14
and 18, May 24, June 2, 7, 12, 15, 17, and 22, 2004. On each occasion, by
telling the union representatives that they were trespassing, by issuing and
handing trespass notices to the union representatives, and/or by evicting the
union representatives from
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
Moreover, in
spite of the police being called on many occasions, and in spite of the
Respondents’ issuance of numerous trespass notices to Marsh and Shimabukuro,
there is no evidence that the Respondents ever pursued the “trespasses” any
further in the criminal process, such as asking the district attorney to issue
arrest warrants or to prosecute the cases. This failure by the Respondents shows
that, in soliciting the police, they were not motivated to assert their private
property rights under
The foregoing
violations occurred without regard to whether the union representatives had
caused disturbances or disruptions in the workplace. The remaining question is
whether such actions by the Respondents are permitted when the union representative
does disturb workers in the workplace. On August 6,
Because
An employer
violates Section 8(a)(1) and (5) of the Act when, during the course of a
collective-bargaining relationship, it alters established matters that are
mandatory subjects of bargaining without giving the union prior notice and an
opportunity to bargain regarding the change. NLRB v. Katz, 369
On February 12,
2004, the Respondents began to interfere with the
In evicting the
union representatives, and interfering with the
The Respondents
argue that “the overriding issue in the matter at hand [is]: TBR has the right
to refuse to allow non-employee Union agents access to its private property,
and to not allow non-employees to roam at will all over its private property because the Union agents are allowed
reasonable ‘non-trespassory means to communicate their message.’” (R. Br.
206–207; emphasis in original).) Without regard to the hyperbole, this
statement does not identify the issue in the present matter, overriding or not.
The issue is whether the Respondents unilaterally changed the contractual
access provision that governs its relations with the
The Respondents
cite Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and NLRB v. Babcock
& Wilcox, 351 U.S. 105 (1956), for the proposition that an employer may
lawfully restrict nonemployees, such as union representatives, from accessing
the employer’s property. However, the present issue is not whether, in a
vacuum, the Respondents could lawfully deny access to a union representative.
In the present case, there is a preexisting agreement that authorizes union
access to the Turtle Bay Resort. Accordingly, the question is whether the Respondents
may lawfully and unilaterally restrict union access to
The Respondents
also argue that the Union violated the agreement by causing disruptions at
In determining
whether the Respondents have a proper claim that the Union interfered with
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
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
The Respondents
contend that Marsh violated the agreement by walking through the hotel, as she
did, to advise the employees she was there. However, the contractual access
provision does not support this contention nor is there any evidence that Marsh’s
practice was contrary to the
The Respondents also
contend that the trespass notices issued to Marsh and Shimabukuro on May 4 were
based on their actions in the March 25 rally. However, Marsh did not participate
in that rally, so this contention is rejected. Also, on May 4, the retirees
chanted as they walked through the lobby and back to their bus. But, Marsh was
not part of the group that chanted, nor was she a part of the outing. Marsh was
at
Collecting dues
from members is one of the duties of the
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 because
the sidewalk was a public forum, and because the union demonstrators were
engaged in protected activity, the employer violated Section 8(a)(1) by
summoning the police and interfering with the demonstration.
On February 12,
2004, the Respondents blocked a rally, consisting of outside union supporters
and employees of the resort, from going onto the
The rally on the
beach at
The Respondents
contend that the demonstrators engaged in boisterous conduct on the
In their
posthearing brief, the Respondents do not address the charges in the complaint
concerning the Respondents’ actions on February 12. Rather, the Respondents
claim that they did not engage in unlawful surveillance of the demonstrators on
February 12. (R. Br. 193.) But, the complaint does not allege that unlawful
surveillance occurred on February 12. Accordingly, and considering all the
circumstances, I conclude that the Respondents no longer dispute that they
unlawfully interfered with the demonstrators on February 12, other than by
surveillance. In any event, and without regard to a waiver or concession by the
Respondents, their actions on February 12 in summoning the police, preventing
the demonstrators from going onto a public beach, and evicting the
demonstrators, as discussed and explained above, violate Section 8(a)(1) of the
Act.
D. Surveillance—Complaint Paragraphs 13,
14, 15,
19, and 20
In National
Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (DC
Cir. 1998), the Board set forth the principles applicable to charges of
surveillance:
[T]he fundamental principles governing
employer surveillance of protected employee activity are set forth in F. W.
Woolworth Co., 310 NLRB 1197 (1993). The Board in Woolworth
reaffirmed the principle that an employer’s mere observation of open, public
union activity on or near its property does not constitute unlawful surveillance.
Photographing and videotaping such activity clearly constitute more than mere
observation, however, because such pictorial recordkeeping tends to create fear
among employees of future reprisals. The Board in Woolworth reaffirmed
the principle that photographing in the mere belief that something might happen
does not justify the employer’s conduct when balanced against the tendency of
that conduct to interfere with employees’ right to engage in concerted
activity. Rather, the Board requires an employer engaging in such photographing
or videotaping to demonstrate that it had a reasonable basis to have
anticipated misconduct by the employees. “[T]he Board may properly require a
company to provide a solid justification for its resort to anticipatory
photographing.” [Citations omitted.]
On March 25,
2004, security guards were posted at the entrance to
The General
Counsel contends that Dougher unlawfully engaged in videotaping the March 25
rally participants while they were demonstrating on the
On April 2,
Dougher appeared to videotape rally participants, most of whom were employees,
as they demonstrated across
On April 17,
approximately 80 people, about half of whom were employees of the resort,
participated in a rally at the resort. A security guard, identified as Val,
took pictures of the license plates on the rally participants’ vehicles. While
the rally was taking place on the beach, a security guard, identified as
Michael, was pointing a video camera at the group as if he were videotaping the
rally. In addition, Tom Parks, a sales manager for the resort, held a video camera
and pointed it at the group as if he were videotaping them. The rally was
peaceful and the Respondents have not demonstrated a reasonable basis to anticipate
misconduct from the rally participants nor have the Respondents provided a
solid justification for its videotaping of the demonstrators before and as they
entered the resort grounds.
The Respondents
have not demonstrated a reasonable basis to anticipate misconduct from the
rally participants on April 2 and 17, nor have the Respondents provided a solid
justification for its videotaping of the rally participants. Accordingly, the
Respondents violated Section 8(a)(1) of the Act when they videotaped the rally
participants and took pictures of their license plates on April 2 and 17.
The Respondents
argue that the testimony offered by the General Counsel’s witnesses on the
April 2 and 17 rallies was “a jumble of testimony in which its witnesses failed
to distinguish its surveillance charges and failed to show that TBR engaged in
any illegal surveillance.” (R. Br. 202.) This argument is rejected. The
credible, virtually unimpeached, evidence demonstrates that the Respondents
videotaped, or appeared to videotape, the rallies.9 Under all of the circumstances, these
actions constitute unlawful surveillance in violation of Section 8(a)(1).
The Respondents
contend that the five factors listed by Member Brame in his concurring opinion
in Randell Warehouse of Arizona, 328 NLRB 1034, 1047–1048 (1999), should
be considered in determining whether the circumstances surrounding the
Respondents’ apparent videotaping on April 2 and 17 are coercive. These factors
are:
(1) Whether the
photographing occurred in the context of serious independent unfair labor
practice conduct or unalleged threats of physical or economic reprisal, intimidation,
or actual violence.
(2) Whether the
activity photographed was carried on in an open and public way, including
whether the activity involved trespass.
(3) Whether the
photographing took place at the employer’s premises, at the union hall or a
union-sponsored event, or at a location unconnected with either party.
(4) Whether the
photographing was done in a “conspicuous” manner that would suggest it was
intended as a prelude to reprisal.
(5) Whether the
party photographing the activity had a “legitimate” or “proper” justification
as previously recognized by the Board.
The videotaping
by the Respondents occurred in the context of serious independent unfair labor
practices. The activity videotaped was carried on in an open and public way.
The videotaping took place while the demonstrators were both on and off the
employer’s premises. The videotaping was done in a conspicuous manner. The
Respondents did not have a legitimate or proper justification for the videotaping
or for appearing to videotape. Accordingly, the five Randell factors
demonstrate, or are at least consistent with, the coerciveness of the Respondents’
apparent videotaping on April 2 and 17.
The Respondents
were diligent at the hearing in objecting to and clarifying that the General
Counsel’s witnesses could not definitely say that they were being videotaped,
only that Dougher and the security guards and Parks were holding videotape
cameras and pointing it at the groups on the two dates, as if they were
videotaping the demonstrators. The Respondents have not admitted that they
actually videotaped the demonstrators nor have their witnesses admitted
videotaping. This position, that the Respondents only appeared to videotape the
demonstrators, undercuts any claim the Respondents might have that they were
justified in videotaping the demonstrators. That is, a claim that one is
justified in videotaping an event might authorize the actual videotaping, but
not simply the appearance of videotaping.
On June 11,
security guard Hanohano followed Marsh wherever she went in the resort,
including the employee cafeteria. No reasonable basis was provided for this
following of Marsh. Accordingly, the Respondents violated Section 8(a)(1) of
the Act when security guard Hanohano followed Marsh and followed her into the
employee cafeteria as she talked to employees.
The Respondents
continued to follow Marsh whenever she came to
The test is
whether employees would reasonably assume from the employer’s conduct that
their protected activities have been placed under surveillance. United
Charter Service, 306 NLRB 150 (1992). The security guards’ following of
Marsh is “activity [that] clearly constitute[s] more than mere observation.” F.
W. Woolworth Co., 310 NLRB at 1197. The security guards closely followed
Marsh, often within 2 to 3 feet, and sat at tables in the cafeteria close to
Marsh as she conversed with employees. Such activity would likely and reasonably
inhibit employees from talking to Marsh, and would instill fear in employees if
they did talk to Marsh. Accordingly, the Respondents violated Section 8(a)(1)
of the Act.
The Respondents’
followed Harmon at the resort just as they had followed Marsh. On February 10,
2005, security guards followed Harmon as she walked into the parking lot with
Trellis, an employee, and while Harmon and Trellis were discussing work issues.
The guards’ surveillance caused Trellis to abruptly end their discussion. This
was the first time that Trellis had been followed by security guards during her
25 years of employment at
Like their
shadowing of Marsh, the security guards’ shadowing of Harmon is “activity
[that] clearly constitute[s] more than mere observation.” The surveillance
would likely and reasonably inhibit employees from talking to Harmon, and would
instill fear in employees if they did talk to Harmon. Indeed, the employees
displayed this fear during the surveillance. The Respondents have provided no
credible or reasonable basis for this surveillance. On February 10 and March
3 March 10, 2005, the Respondents unlawfully surveilled Harmon and their employees
while Harmon and the employees were engaged in protected activity. The
Respondents’ actions violated Section 8(a)(1) of the Act.
On January 19,
2005, Harmon and Laura Moye walked through the work areas of the hotel and were
followed within several feet by Dougher. Harmon was new to
E. Disparagement and Threat—Complaint
Paragraph 21
“It is well
settled that the Act countenances a significant degree of vituperative speech
in the heat of labor relations. Indeed, ‘[w]ords of disparagement alone
concerning a union or its officials are insufficient for finding a violation of
Section 8(a)(1).’ Sears, Roebuck & Co., 305 NLRB 193 (1991).” Trailmobile
Trailer, LLC, 343 NLRB 95 (2004). Flip and intemperate remarks that are
mere expressions of personal opinion are protected by the free speech provisions
of Section 8(c). Id. “Employer statements must be viewed in context and not in
isolation to determine if they have the reasonable tendency proscribed by
Section 8(a)(1).” Flying Foods Group, Inc., 345 NLRB 101, 107 (2005). In
addition, “the standard for determining whether a statement violates Section
8(a)(1) is an objective one that considers whether the statement has a
reasonable tendency to coerce the employee or interfere with Section 7 rights,
rather than the intent of the speaker.”
On March 5,
2005, Dougher engaged in a tirade against Harmon. The tirade occurred in the
employee cafeteria and in the presence of employees. His harangue included a
threat to discipline any employee who talked to Harmon. See Trailmobile
Trailer, LLC, supra (“Here, the comments of [the Respondent’s managers],
while disparaging, . . . did not reasonably convey any explicit or implicit
threats . . .”). Moreover, Dougher put teeth in his threat to Harmon by saying
the NLRB did not control him and he was not interested in what the NLRB did.
In determining
whether Dougher’s statements have a reasonable tendency to coerce employees,
one must guard against assuming that employees have the same legal knowledge,
or indeed, confidence in the law’s efficacy, that a sophisticated, but not
cynical, person might possess. That is, whether Dougher would ultimately be
successful in disciplining any or every employee who talked to Harmon is not
the question. And, in any event, the standard is an objective one. Under all of
the circumstances, I conclude that Dougher’s disparagement of Harmon, coupled
with his threat to discipline any employee who talked to Harmon, has a
reasonable tendency to coerce employees or interfere with Section 7 rights in
violation of Section 8(a)(1).
F. Threat of Closure—Complaint Paragraph
25
An employer’s
threat of retaliation for employees’ protected activity violates Section
8(a)(1) of the Act. NLRB v. Gissel Packing Co., 395
the prediction must be carefully phrased
on the basis of objective fact to convey an employer’s belief as to
demonstrably probable consequences beyond his control or to convey a management
decision already arrived at to close the plant in case of unionization.
395
The only
economic facts in the memorandum to support the threat of closure are reduced
hours of operation for
In determining
whether an employer’s statement is an unlawful threat or a fact-based
prediction, the Board considers the totality of the relevant circumstances. NLRB
v. Gissel Packing Co., 395
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
In NLRB v.
Collins & Alkman Corp., 338 F.2d 743 (5th Cir. 1964), the court
declined to enforce the portion of the Board’s order finding an unlawful threat
in a letter to employees that urged, “don’t gamble your future security and
progress by voting for the [Union]. Let’s continue to grow together—vote no.”
The letter listed union companies that had also closed down, and the letter argued
that a union could not prevent a company from closing down. The company’s
letter was a reply to a letter from the union that listed nonunion companies
that had closed down. The company’s letter in Collins & Aikman Corp.
is not comparable to the memorandum and the threat in the present case. Urging
employees not to gamble their security and progress, even if the Board would
now hold that such statements do not violate Section 8, is much different from
telling employees what the employer would rather close if the employees continued
to engage in protected, concerted activities. In the context of the memorandum
and the Respondents’ other violations of the Act, employees would reasonably
understand from the wording of the threat that they were endangering their
jobs, and that the Respondents would, and would rather, close
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 employees. The employer said that if the company conceded to the union’s
unreasonable demands, it would lose business and could close. However, the
employer then stated that the company would not give in to the union’s
unreasonable demands. Accordingly, there was no threat of closure, and the
allegation was dismissed. In the present case, there is a threat. Butt told the
employees that the Respondents would rather close than have the employees
continue in their organizing activities, even though the employees may only be “hostages”
in such activities.
In Butts’
memorandum, distributed to all employees, the Respondents threatened to close
G. Validation of Union Representatives’
Parking at
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
The Respondents’
practice of providing free parking to the union representatives when they came
to
Union access to
the employer’s facility is a term and condition of employment. Park Manor Nursing
Home, 314 NLRB No. 127 (1994)
(not reported in Board volumes). Moreover, the expired collective-bargaining
agreement that still governed the relations between the Union and the
Respondents provided for union access to
Citing First
National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), the Respondents
contend that they were not obligated to bargain with the Union over the parking
fee because the bargaining obligation only extends to matters involving the
relationship between the employer and the employees. The Respondents argue that
the parking fee issue is between the Respondents and the
This artificial
distinction is rejected. First, the
The Respondents
appear to contend that the parking fee does not involve the union’s access to
The Respondents
also argue that providing the Union with free parking at Turtle Bay is a crime
under Section 302 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. §
186. That statute provides that it is unlawful for an employer to pay or
deliver money or other thing of value to a union representative. Section 302 of the LMRA was enacted to
prohibit “corruption of collective bargaining through bribery of employee
representatives by employers [and] with extortion by employee representatives.”
Arroyo v.
The Respondents
make no claim that union representatives ever used free parking at
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 because of crowding and safety problems.
This resulted in the excluded employees being required to park at a distance up
to a 5-minute walk from the facility. The Board determined that the difference
between a 1-minute walk from the closed lot and a 3- to 5-minute walk from the
new parking area to the facility was not a sufficiently significant difference
to warrant imposing a bargaining obligation.
Because the General
Counsel does not address the amount of the parking fee instituted in January
2005, he seems to take the position that any unilateral change from free
parking violates the Respondents’ bargaining obligations under the Act. However,
this position ignores the requirement that such changes be significant. There
was no evidence of the amount the Respondents require union representatives to
pay for parking. It may be that the parking fee is so high as to constitute a
significant change (the approximate one-half-mile distance from
H. Discipline of Jeannie
Martinson—Complaint
Paragraph 26
In Nor-Cal
Beverage Co., 330 NLRB 610 (2000), the employer disciplined an employee who
called a coworker a “scab” after the coworker said that he would cross and
wanted to cross a picket line at another facility. The next day, the employee
said to his coworkers, “Oh, here’s the company’s favorite scabs.” As in the
present case, the employee was disciplined for violating the employer’s
no-harassment policy. Unlike the present case, the written discipline issued to
the employee did not specifically refer to the employee’s use of the word “scab.”
The Board found that the “scab” epithets were used in the course of protected
activity, and, citing Linn v. Plant 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 indefensible as to remove them from the protection of Section 7,’” held that
the employee’s use of “scab” and “scabs” did not lose the protection of the
Act. See also Letter Carriers Local 496 v. Austin, 418
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 nonseriousness when she made her remark removes the statement from
the protection of the Act. I conclude, under these circumstances, that
Martinson’s statement was said in the course of protected activity despite her
subjective intent to joke about it. What Martinson said is more important than
her subjective intent.
The Respondents
did not consider whether or not Martinson was joking when they disciplined
Martinson. The Respondents disciplined Martinson solely for using the word “scabs.”
Also, the context in which Martinson used the term must be considered. Nor-Cal
Beverage Co., 330 NLRB at 611. Martinson made her statement to the cook the
day after a 1-day strike in which she and other employees did not cross the
picket line, but other employees, especially newer employees, did cross the
picket line. And, her statement referred to the employees who had crossed the
picket line the previous day. Moreover, an employee will rarely use the term “scab”
except in the course of union activity because it directly refers to protected
activity.
As the Board has
stated, “epithets such as ‘scab’ . . . are commonplace in these struggles.” A
labor struggle has been occurring at
The Respondents
cite various cases in support of their argument that they may lawfully
discipline Martinson for using the word “scab.”
The most recent of the cases cited by the Respondents is 1965. In that
case, NLRB v. R. C. Can
In Caterpillar
Tractor v. NLRB, 230 F.2d 357 (7th Cir. 1956), the court declined to enforce
the Board’s order in which the Board found the employer had violated the Act in
disciplining employees who had worn buttons saying, “Don’t be a Scab.” The court
stated that the use of the word “scab” was explosive and connoted opprobriousness
and vileness. The court’s decision has not been interpreted to allow a general
ban on the use of the word “scab.” E.g.,
NLRB v. Mead Corp., 73 F.3d 74, 79 (6th Cir. 1996). Moreover, the case
was decided under circumstances that at least portended violence. In the present
case, although the Respondents allege that the statement constituted
harassment, there is no contention or evidence that violence or the threat of
violence was involved in any way. Whatever connotations the word “scab” may
have had in 1956, those connotations were apparently meliorated by 1966, the
date of the Supreme Court’s decision in Linn. Moreover, the law in this
area, as most recently clarified in Nor-Cal Beverage Co., is that the
use of the word “scab,” when used without being accompanied by violence or
threats or physical gestures, and used in the course of protected activity, may
not be sanctioned. Nor-Cal Beverage Co., 330 NLRB 610 (2000).
As the Board
explained in Nor-Cal Beverage Co., the Wright Line analysis is
not appropriately applied in the present circumstances because the employer’s
motive is not in issue. Neff-Perkins Co., 315 NLRB 1229 fn. 2 (1994).
The Respondents admittedly disciplined Martinson because she described other
employees as “scabs.” The question is whether Martinson’s statement was
protected.
Under all the
circumstances, Martinson was engaged in protected activity when she said to the
cook, “Oh, looks like we are working with a bunch of scabs.” The Respondents
disciplined Martinson for this protected activity. Accordingly, the Respondents’
discipline of Martinson violated Section 8(a)(1) and (3) of the Act.
I. Suspension of Timothy Barron—Complaint
Paragraph 26
The Respondents
admit that they suspended Barron for 5 days because he had called Baeseman a “scab.”
In Barron’s encounter with Baeseman, no vulgarity was used, and no violence
occurred or was threatened. No physical contact occurred or was threatened.
Barron’s use of the word “scab” was in the course of protected activity and
occurred during a brief, protected discussion between two coworkers who were on
opposing sides of the labor dispute then occurring at
Under Nor-Cal
Beverage Co., supra, an employer violates Section 8(a)(1) and (3) of the
Act when it disciplines an employee for using the word “scab” in the course of
protected activity, and the employee’s statement is unaccompanied by any threat
or physical gestures or contact.
The Respondents
contend that Barron intended to injure Baeseman, and that Barron could properly
be disciplined for calling Baeseman a scab with such an intent. (See R. Br.
222.) The response to this contention is twofold. First, Barron was suspended
for his use of the word “scab,” not his intent when he said it. Second, the
evidence does not support the claim that Barron intended to injure Baeseman.
Indeed, there is no credible evidence to support this contention, a contention
that is also contradicted by Baeseman’s demeanor in describing the incident. By
calling Baeseman a scab, Barron was likely trying to persuade Baeseman to
change his antiunion position by telling Baeseman how others viewed his actions.
The Respondents
argue that Barron’s statements to Baeseman were disruptive and violated the
Respondents’ alleged zero-tolerance policy on harassment. However, the Respondents
did not discipline Barron because he had disrupted the workplace or had
violated the policy on harassment. The Respondents suspended Barron because he
had called Baeseman a “scab.” In addition, the Board dealt with a similar contention
in Nor-Cal Beverage Co., 330 NLRB at 612 fn. 5:
While we agree with our colleague that
employees enjoy Sec. 7 rights both to engage in and refrain from supporting a
union, we fail to see how an employer’s punishment of an employee’s exercise of
either right can be justified by an assertion that language used by the
employee in the course of exercising that right, although nonthreatening, was
viewed as “harassment” by another employee who disagreed with him. The point is
that the Act prohibits an employer from punishing an employee’s expression of
either prounion or antiunion views unless they are manifested in a manner that
exceeds the protection of the Act; and, as explained above, that is not the
case here.
See also
New York Telephone Co.,
266 NLRB 580, 582 (1983) (labeling the activity harassment does not change or
affect the protected nature of the activity). Similarly, Barron’s expression of
his prounion views was not made in a manner that exceeds the protection of the
Act. Barron’s statements were protected, and the Respondents admittedly
suspended him for uttering those protected statements. Accordingly, the Respondents’
suspension of Barron violated Section 8(a)(1) and (3) of the Act.10
J. Termination of Mark Feltman—Complaint
Paragraph 26
Under the test
set forth in Wright Line, the General Counsel has the burden of proving
by a preponderance of the evidence that the employee’s union or other protected
concerted activity was a substantial or motivating factor in the employer’s discharge
of an employee. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). To meet this burden,
the General Counsel must establish four elements. First, the existence of
activity protected by the Act. Second, that the Respondent was aware of such
activity. Third, that the alleged discriminatee suffered an adverse employment
action. Fourth, a motivational link, or nexus, between the employee’s protected
activity and the adverse employment action. American Gardens Management Co.,
338 NLRB 644 (2002).
If the General
Counsel satisfies his initial burden under Wright Line, the burden then
shifts to the employer, in the nature of an affirmative defense, to demonstrate
that the same action would have taken place even in the absence of the protected
conduct. In meeting this burden, the employer cannot simply state a legitimate
reason for the action taken, but rather must persuade by a preponderance of the
evidence that it would have taken the same action in the absence of the
protected activity. T & J Trucking Co., 316 NLRB 771 (1995). Nevertheless,
the employer’s defense does not fail simply because not all of the evidence
supports it, or even because some evidence tends to negate it. Merrilat
Industries, 307 NLRB 1301, 1303 (1992). The ultimate burden of proving
discrimination always remains with the General Counsel. Wright Line, supra.
The first three
elements of the Wright Line analysis have been established and are not
seriously disputed by the Respondents. Feltman engaged in protected activity by
participating in the strike on May 21, as well as by wearing union buttons that
were observed by Ramos and her managers. The Respondents knew of Feltman’s
protected activity on May 21 because Dougher observed Feltman on the picket
line, and the Respondents knew Feltman was wearing union buttons because Ramos
and her manager commented on the buttons. In addition, Ramos admitted that she
learned of Feltman’s May 21 picket line activity when she supposedly investigated
the charge against Feltman. The Respondents dispute the fourth element of the
analysis, viz, the motivational link between Feltman’s union activity and his
termination. The Respondents also contend that they would have discharged
Feltman without regard to his protected activities.
The motivational
link is established by proof of antiunion animus.
Motive may be
inferred from the total circumstances of the case, Fluor Daniel, Inc.,
304 NLRB 970 (1991), including disparate treatment of the alleged discriminatee,
Holiday Inn East, 281 NLRB 573, 575 (1986), the timing of the employment
action in relation to the protected activity, Taylor & Gaskin, Inc.,
277 NLRB 563 fn. 2 (1985), failure to adequately investigate the alleged
misconduct, New Orleans Cold Storage & Warehouse Co., 326 NLRB 1471 (1998), and concurrent
8(a)(1) violations. Greystone Bakery, 327 NLRB 433 (1999); Electronic
Data Systems, 305 NLRB 219 (1991). The employer’s asserted reasons for the
discharge may also disclose animus if those reasons are found to be false or
pretextual. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966); see Reeves v.
Sanderson Plumbing Products, 530 U.S. 133 (2000).
First, there is
direct evidence of union animus, not only concerning the Union, but also
concerning Feltman because of his involvement with the
The direct
evidence also includes the Respondents’ shadowing of union representatives
whenever they came on
The indirect
evidence of the Respondents’ motivation shows that Feltman was treated
differently from similarly situated employees. For example, Stone had called Mendivil
a “f—ing ass” and squirted Mendivil with a water gun. Stone did not receive any
discipline for these actions. The Respondents argue that Feltman’s actions are
different from Stone’s actions because Feltman threatened a federal witness
because of his testimony. As noted above, this argument fails for several
reasons.
First, calling
someone a “f—ing ass,” while crude, is not a threat. Even if there could be
circumstances in which such an epithet could be taken as a threat, no such
circumstances exist herein. There was no physical display by Feltman, and there
was no physical contact or threat of contact. There is no history of physical
confrontations between Feltman and Mendivil. Indeed, there is no evidence of
any physical confrontations, or even harsh words (except Delosantos’s epithet
to a striking employee), between prounion employees and antiunion employees at
Moreover,
Feltman’s alleged epithet immediately followed Mendivil’s failure or refusal to
answer Feltman’s question, rather than the question itself. Feltman’s alleged
epithet could just as easily have referred to Mendivil’s refusal to answer a
simple question from an acquaintance and a coworker. Mendivil could have
answered the question, “How was court,” with one or several words and without
discussing or referring to testimony. Indeed, a simple “okay” could have
sufficed. But, Mendivil refused to answer. An epithet under these circumstances,
while crude and unfortunate, is not completely surprising (especially
considering Ramos’s testimony that employees quite frequently use the word) and
is not threatening.
In contrast, a
possibly threatening use of the word is found in the statement by Delosantos on
May 21, 2005, to a picketing employee. Delosantos, while crossing the picket
line, told the employee, who was walking the picket line, to “f— off.” This
statement, under the circumstances of the picket line and the confrontation of
prounion and antiunion workers, is at least closer to a threat than the epithet
allegedly used by Feltman. Nevertheless, Delosantos received only a written
warning for this conduct.
One
distinguishing characteristic of Stone’s conduct is that he shot a water gun at
Mendivil while he was calling Mendivil a “f—ing ass.” However, this difference would warrant more
severe discipline for Stone than Feltman. Yet, Stone received no discipline for
his actions. Indeed, there is no evidence that any employee has been terminated
for cursing, except Feltman. The Respondents’ characterization of Feltman’s
alleged epithet as threatening is false, and does not distinguish Feltman’s conduct
from Stone’s conduct.
Accordingly, the
Respondents treated Feltman disparately from other employees. The Respondents attempt
to justify their disparate treatment by falsely characterizing Feltman’s
conduct. The Respondents’ explanation of Feltman’s discipline is a pretext.
Another factor
from which antiunion animus could be inferred is the timing of the employment
action. The Respondents suspended Feltman and decided to discharge him within approximately
6 weeks of the date he walked on the May 21 picket line. More importantly, the
Respondents made their decision to discharge Feltman within 2 days of their
failed attempt to obtain a Federal court injunction against the
An employer’s
failure to investigate or adequately investigate the stated reasons for an
employee’s discharge tends to show that the stated reasons were not
determinative in the employment decision, and that the discharge would occur
without regard to the viability of the stated reasons. Ramos had been
off-island on June 10, the date Feltman was charged and suspended by Dougher.
She returned on June 11, a Saturday, and met with Feltman, Moye, and Harmon.
She decided that day to terminate Feltman’s employment. There is no evidence
that she investigated anything. She claimed to have learned in her investigation
that Feltman had walked on the picket line on May 21, but how this fact would
be relevant to a proper investigation of Feltman’s conduct on June 10 is a
mystery. The Respondents’ failure to conduct an adequate investigation into the
reasons for the termination of Feltman is further evidence of the Respondents’
antiunion animus.
An employer’s
concurrent 8(a)(1) violations may also demonstrate unlawful animus. The
Respondents’ concurrent 8(a)(1) violations, as set forth above, are numerous.
In particular, Butt’s violation of Section 8(a)(1) by threatening closure if
the employees persisted in their union activities is a significant factor. Lemon
Drop Inn, 269 NLRB 1007, 1007 (1984) (“the Board and the courts have long
regarded union animus demonstrated by 8(a)(1) coercion as a highly significant
factor in determining motive”). The Respondents’ unlawful actions, including
the shadowing of union representatives, summoning police to assist in evicting
the union representatives from Turtle Bay, surveillance of union and protected
activities, and the berating of Harmon and threatening to discipline any
employee she talked to, are among the 8(a)(1) violations that demonstrate
unlawful animus.
When an employer
attempts to prove its affirmative defense to a charge of discrimination under
Section 8(a)(3), it must prove that it would have taken the same action in the
absence of protected activity, not that it could have taken such action or that
it otherwise had a legitimate reason for the action. T & J Trucking Co.,
316 NLRB 771 (1995); Center Property Management, 277 NLRB 1376 (1985).
The Respondents have not proven that they would have taken the same action
against Feltman in the absence of his protected activity. Feltman’s “misconduct,”
stripped of the Respondents’ unproven and inappropriate characterization,
amounts to cursing at a coworker. When Stone called Mendivil the same epithet,
and exacerbated the name-calling by shooting Mendivil with a water gun, Stone
was not even disciplined. When Delosantos used similar coarse language to a
coworker in a threatening manner and in threatening circumstances, she was
given a written warning.
The Respondents
argue that even if Feltman was treated differently from other employees, his
termination was justified because the resort may lawfully discharge employees
who use profane and indecent language. NLRB v. Longview Furniture Co., 206 F.2d 274 (4th Cir. 1953). Longview
Furniture is inapposite to the present case. Feltman was not discharged for
using profane language, but for threatening a federal witness. Moreover, the
Respondents’ asserted reason for Feltman’s discharge is pretextual.
The Respondents
argue that Feltman was discharged for violating
The Respondents
argue that Feltman “engaged in a cruel, deliberate and mean spirited act of
intimidation toward Mendivil. Feltman tried to silence a federal court witness,
and to punish and intimidate that witness for his testimony.” (R. Br. 229.)
This factual argument is without merit. There was no threat in Feltman’s words,
there was no threat in his gestures, and there was no threat in the
circumstances. The Respondents’ argument continues the pretext the Respondents
first planted in their termination memorandum, which accuses Feltman of a “federal
crime” for “threatening or retaliating against a federal witness.” (GC Exh.
27.) Thus, the Respondents’ contrived and fanciful factual argument arises from
the reason set forth in their termination memorandum, a reason that was likely
inserted in order to stigmatize Feltman and to give his encounter with Mendivil
as ignominious and criminal a characterization as possible. However, by doing
so, the Respondents magnified their inability to prove the charge they leveled
against Feltman and highlighted the pretextual nature of their reason for
Feltman’s discharge.
The evidence,
including the demeanor of Dougher and Ramos, shows that the Respondents did not
actually believe Feltman had threatened Mendivil for being a federal witness,
much less had committed a crime in doing so. However, if the Respondents did believe
that charge and if they did assert that charge against Feltman in good faith,
there is no evidence that they reported this allegedly perceived crime to the
federal authorities. Having failed in this duty, the Respondents must acknowledge
that they and their managers might have committed the crime of misprision of
felony. 18 U.S.C. § 4. The Respondents have also admitted that they engaged in
criminal conduct by providing free parking to the union representatives during
their onsite visits pursuant to the contract. Such self-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 Respondents for terminating
Feltman’s employment are a pretext for their actual motive in taking that
action necessarily means that the asserted reasons were not relied on. Accordingly,
there is no need to further address these reasons because a finding of pretext “leav[es]
intact the inference of wrongful motive established by the General Counsel.” Limestone
Apparel Corp., 255 NLRB 722 (1981); “A finding of pretext defeats any attempt
by the Respondent to show that it would have discharged the discriminate[e]s
absent their union activities.” Rood Trucking Co., 342 NLRB 895, 899
(2004). Alternatively, because the Respondents’ reasons for discharging Feltman
are unsupportable under the standards it normally applies to its other employees,
I conclude that the Respondents have not proven that they would have taken the
same action in the absence of Feltman’s protected activity. Hospital San
Pablo, Inc., 327 NLRB 300 (1998).
The animosity
between the Respondents and the
Thus, increased
and increasing tensions, brought on by the failure to reach agreement at the
bargaining table, and perhaps leading to frustration on both sides of the
table, led to violations of the law, often through the abuse of power.
Ill-conceived actions were engendered, such as the shadowing of union representatives
and the firing of a good employee, that the employer may have never done in the
past and would not otherwise think of doing. The actions may be borne of frustration,
may be ineffectual, may be intended to harm the other side and its supporters,
and may even be puerile at times, but the actions, as found, are nevertheless
illegal.
For all of the
foregoing reasons, the Respondents violated Section 8(a)(3) and (1) in
terminating the employment of Feltman.
Conclusions of Law
1. The
Respondents, Oaktree Capital Management, LLC (Oaktree), and TBR Property, LLC
(TBR Property), and Benchmark Hospitality, Inc. (Benchmark) are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. UNITE HERE!
Local 5 (the
3. Oaktree and
TBR Property are single employers of the employees at Turtle Bay Resort,
4. At all
material times, the Union has been the designated exclusive
collective-bargaining representative of the Respondents’ employees at
All employees performing work at the
Turtle Bay Resort facility covered under the collective-bargaining Agreement between
Hilton and the Union effective for the period February 28, 1999 through
February 28, 2002.
5. The
Respondents violated Section 8(a)(1) of the Act by unlawfully maintaining the
following rules:
a. [S]olicitation of any kind of one staffmember by another is prohibited while either person is on working time or in a public or work area.
b. Distribution by staffmembers of advertising materials, handbills, printed or written literature of any kind in working or public areas of our Resort is prohibited at all times.
c. Should a staffmember wish to visit the Resort with family or friends, they may do so with the prior approval of their manager and Planning Committee Member. You will be required to have a ‘Return to Property’ pass.
d. The Respondents’ rule that prohibits employees’ “presence in the Resort more than 30 minutes before or after your shift.”
e. “Being present on company premises at any time other than the employee’s assigned work shift, unless specifically authorized by his/her supervisor or picking up paycheck” is misconduct.
f. Walking off the job will be considered voluntary termination.
g. The Respondents’ rule prohibiting “refusing to cooperate during a company investigation.”
6. The
Respondents violated Section 8(a)(1) of the Act by telling union representatives
that they were trespassing at Turtle Bay and that they had no right to be at
Turtle Bay, by telling the Union that it could not collect dues at Turtle Bay,
by summoning police to assist in evicting union representatives from Turtle
Bay, by summoning police to witness the Respondents handing Trespass Notices to
union representatives, by issuing and handing trespass notices to union
representatives, by evicting union representatives from Turtle Bay, by
illegally surveilling union representatives whenever the union representatives
came to Turtle Bay, by illegally surveilling employees and union representatives
who were engaged in peaceful demonstrations on the public highway in front of
Turtle Bay and on the public beach adjacent to Turtle Bay, by illegally denying
union demonstrators and employees access to a public beach adjacent to Turtle
Bay’s property, by threatening to discipline employees who talked to union
representatives at Turtle Bay, and by threatening to close Turtle Bay in
retaliation for protected, concerted activity.
7. The
Respondents violated Section 8(a)(5) and (1) of the Act by unilaterally
changing the access provision of the collective-bargaining agreement, such as
evicting union representatives from Turtle Bay, and preventing union representatives
from collecting dues at Turtle Bay.
8. The
Respondents violated Section 8(a)(5) and (1) of the Act because the Respondents
failed and refused to bargain in good faith with the Union as the exclusive
bargaining representative of the employees at Turtle Bay by refusing to provide
information and by providing some information after an unreasonable and
unlawful delay, information that was requested by the Union in separate letters
on April 28, August 30, and September 13, 2004.
9. The
Respondents violated Section 8(a)(3) and (1) of the Act by unlawfully
discharging Mark Feltman, by unlawfully suspending Timothy Barron, and by
unlawfully disciplining Jeannie Martinson.
10. The
foregoing violations constitute unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found
that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act. The Respondents will be
directed to turn over to the
The Respondents
having discriminatorily discharged an employee, they must offer him
reinstatement and make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondents having
discriminatorily suspended an employee, they must make him whole for any loss
of earnings and other benefits arising from the suspension.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondents,
Oaktree Capital Management, LLC, TBR Property, LLC, and Benchmark Hospitality,
Inc., Kahuku,
1. Cease and
desist from
(a) Failing and
refusing to bargain in good faith with the Union as the exclusive bargaining
representative of their employees by failing and refusing to furnish the Union
with the information requested by the
(b) Unilaterally
changing the access provision of the collective-bargaining agreement with the
(c) Maintaining
the rules of conduct applicable to employees that have been found to violate
Section 8(a)(1) of the Act, or similar rules, and that are set forth in paragraph
5 of the above conclusions of law.
(d) Maintaining
overly broad rules that limit employees’ right to discuss their wages and
working conditions.
(e) Maintaining
overly broad rules that prohibit employees from soliciting or distributing
literature in nonwork areas and during nonwork time.
(f) Maintaining
overly broad rules that prohibit employees’ presence on
(g) Maintaining
overly broad rules that restrict employees’ rights to engage in protected
concerted activity.
(h) Telling
representatives of the Union that they are trespassing and have no right to be
on
(i) Issuing
trespass notices to representatives of the
(j) Evicting
representatives of the Union from
(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 permitted to collect dues at
(m)
Photographing or videotaping union representatives and employees who are
engaged in peaceful demonstrations.
(n) Following
union representatives in the
(o)
Eavesdropping on conversations between union representatives and employees.
(p) Preventing
union representatives and employees from going to the public beaches adjacent
to
(q) Disparaging
union representatives and threatening to discipline employees for talking to
union representatives.
(r) Threatening
to close
(s) Discharging,
suspending, disciplining or otherwise discriminating against any employee for
supporting the
(t) In any like
or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the
rules set forth in paragraph 5 of the above conclusions of law.
(b) Provide and
give to the Union all of the information requested by the
(c) Destroy any
videotape, pictures, negatives, and other electronic images obtained during
unlawful surveillance of union and protected activity, viz., the unlawful
surveillance conducted on April 2 and 17, 2004.
(d) Continue in
full force and effect the access provision of the collective-bargaining
agreement with the
(e) Within 14
days from the date of the Board’s Order, offer Mark Feltman full reinstatement
to his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(f) Make Mark
Feltman and Timothy Barron whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
(g) Within 14
days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharge of Mark Feltman, the unlawful suspension of Timothy Barron,
and the unlawful discipline of Jeannie Martinson, and within 3 days thereafter
notify the employees in writing that this has been done and that the discharge,
suspension, and discipline will not be used against them in any way.
(h) Preserve and,
within 14 days of a request, or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(i) Within 14
days after service by the Region, post at their facility in Kahuku,
(j) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondents have taken to comply.
It is further ordered that the complaint is dismissed insofar as it
alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not fail and refuse to bargain in good faith with the Union as
the exclusive bargaining representative of Turtle Bay’s employees by failing
and refusing to furnish the Union with information requested by the Union.
We will not unilaterally change the union access provision of the
collective-bargaining agreement with the
We will not maintain overly broad rules that limit employees’ right to
discuss their wages and working conditions.
We will not maintain overly broad rules that prohibit employees from
soliciting or distributing literature in nonwork areas and during nonwork time.
We will not maintain overly broad rules that prohibit employees’
presence on
We will not tell representatives of the Union that they are trespassing
and have no right to be on
We will not issue trespass notices to representatives of the
We will not evict representatives of the Union from
We will not summon law enforcement officials to remove or to assist in
removing union representatives contrary to the union representatives’ right to
be on the premises.
We will not tell union representatives that they are not permitted to
collect dues at
We will not photograph or videotape union representatives and employees
who are engaged in peaceful demonstrations.
We will not follow union representatives in the
We will not eavesdrop on conversations between union representatives
and employees.
We will not prevent union representatives and employees from going to
any public beach adjacent to
We will not disparage union representatives and threaten to discipline
employees for talking to union representatives.
We will not threaten to close
We will not discharge, suspend, discipline or otherwise discriminate
against any employee for supporting the
We will not in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed them by Section 7 of
the Act.
We will furnish to the
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 nonworktime.
We will rescind the overly broad rule in our employee handbook that
prohibits employees’ presence on
We will rescind the rules and regulations in our staff handbook (collective-bargaining
unit version) and our handbook of rules and regulations that have been found to
unlawfully infringe on our employees’ Section 7 rights.
We will destroy any videotape, pictures, negatives, and other
electronic images obtained during our unlawful surveillance of union and
protected activity on April 2 and 17, 2004.
We will continue in full force and effect the union access provision
of the collective-bargaining agreement until an agreement is reached or there
is an impasse on all mandatory subjects of bargaining.
We will, within 14 days from the date of this Order, offer Mark
Feltman full reinstatement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
We will make Mark Feltman whole for any loss of earnings and other
benefits resulting from his discharge, less any net interim earnings, plus
interest.
We will, within 14 days from the date of this Order, remove from
our files any reference to the unlawful discharge of Mark Feltman, and we will, within 3 days thereafter,
notify him in writing that this has been done and that the discharge will not
be used against him in any way.
We will, within 14 days from the date of this Order, remove from
our files any reference to the unlawful discipline of Jeannie Martinson and
Timothy Barron, and we will, within
3 days thereafter, notify each of them in writing that this has been done and
that the disciplines will not be used against them in any way.
Oaktree Capital Management, Llc, TBR Property, LLC, and Benchmark
Hospitality, Inc.