Coco Palms Resort Hotel

National Labor Relations Board - Board Decisions

Feb 8, 1974

208 N.L.R.B. 966 (N.L.R.B. 1974)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Island Holidays , Ltd., d/b/a Coco Palms Resort Hotel
and ILWU Local 142
Island Resorts, Ltd., d/b/a Coco Palms Resort Hotel
and ILWU Local 142. Cases . 37-CA-889 and
37-RC-1788
February 8, 1974
DECISION, ORDER, AND
CERTIFICATION OF RESULTS
OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 9, 1973, Administrative Law Judge
Louis S. Penfield issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the Charging Party filed a
brief in opposition to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint alleged and the Administrative Law
Judge found that Respondent violated Section
8(a)(1) of the Act and interfered with the election
held on February 22, 1973, by threatening employees
that if they chose the Union as their bargaining
representative, their hours would be cut or changed,
work rules would be more strictly enforced, employ-
ee privileges would be limited, and shift assignments
would be changed. The complaint also alleged, and
the Administrative Law Judge found, that Respon-
dent violated Section 8(axl) and interfered with the
election by withholding fictitious union dues. We
find merit in Respondent's exceptions to these
findings.
The record shows that Respondent operates 11
hotels located in the State of Hawaii. The employees
at four of these hotels are represented by ILWU
Local 142 (hereinafter called the Union). Respon-
dent is a member of an employer 's bargaining
association known as the Hotel Employers' Associa-
tion of Hawaii (hereinafter called the Association).
The Union and the Association are parties to a
collective-bargaining agreement covering approxi-
mately 15 hotels in the State of Hawaii, including
Respondent's 4 represented hotels.
In the fall of 1972, the Union filed a petition for an
election among the employees of Respondent's Coco
Palms Resort Hotel. It is undisputed that if the Coco
Palms employees chose the Union as their collective-
bargaining representative, they would be covered by
the existing collective:bargaining agreement. Thus,
the primary issues in the preelection campaign
revolved around the comparative benefits enjoyed by
the employees at the Coco Palms and at the four
hotels operating under the collective-bargaining
agreement. Accordingly, in. the months following the
filing of the petition, the Union distributed compari-
son sheets to the employees setting forth the benefits
that would result if the employees selected the Union
as their bargaining representative.
On February 16, 1973, Anneliese Lermann, execu-
tive housekeeper for all of Respondent's hotels, met
with the Coco Palms housekeeping staff. During the
course of the meeting, Lermann pointed out that the
housekeeping work at Coco Palms is scheduled on
the basis of seniority, so that when the workload is
slack, the senior employees get first priority for the
work. She further stated that at Hanalei Plantation
(one of Respondent's represented hotels) the house-
keeping work is evenly distributed among all the
employees without regard to their seniority.
A second employee meeting was held on February
16 by Joe Alalem, the bar manager , among the
cocktail waitresses and bar employees. It is undisput-
ed that one of the topics of discussion at the meeting
was Respondent's dress code, a subject that had been
discussed at prior employee meetings. Respondent's
dress code required female employees to wear
brassieres and stockings while working ; a rule that
was apparently often breached. When Alalem dis-
covered that employees were violating the rule, he
would reprimand them and tell them to obey the
code in the future. According to the credited
testimony of Faith Okabe, one of Respondent's
cocktail waitresses, Alalem told the employees, with
regard to the dress code, that Coco Palms had been
lenient on them, "but that once the Union got in we
could have none of this underwear bit and we'd have
to shape up."
During the meeting, Alalem also discussed Respon-
dent's policy of allowing Coco Palms employees to
go into the hotel lounges after completing their shifts,
without management permission, for an after-hours
drink. Alalem pointed out that the employees at the
Kauai Surf (another of Respondent's hotels operat-
ing under the Association contract) had to request
management permission . Alalem further stated that
the Coco Palms policy "might" change if the Union
came in.
A third topic of discussion at the February 16
meeting was Respondent's policy as to days off.
Alalem told the employees that in the past he had
• filled in for them when they took days off, but once
the union came in the days off policy would have to
208 NLRB No. 145
COCO PALMS RESORT HOTEL
change because of the contract's prohibition against
supervisors doing unit work.)
On February 17 John Kaanaana, Respondent's
food and beverage manager, presided over a meeting
of the food and beverage employees. In the course of
the meeting, Kaanaana noted that the Association's
contract permitted split shifts whereas split shifts
were not used at Coco Palms.
We find, contrary to the Administrative Law
Judge, that the statements made by Respondent's
supervisors at the employee meetings on February
16, 17, and 19, 1972, did not constitute unlawful
threats or interfere with the election. With the
exception of A]alem's statement concerning the dress
code, we view the alleged coercive statements to be
merely attempts to compare the working conditions
at Coco Palms with those at Respondent's hotels
which operate under the Association contract. In this
regard, we note that the statements were made in a
noncoercive atmosphere and in the absence of any
other unfair labor practices. With regard to Alalem's
statement that the dress code would be enforced
more strictly once the Union came in, we find this to
be a prediction of a forseeable consequence of
unionization: that all house rules would be enforced
in accordance with the collective-bargaining agree-
ment.2 We believe such a statement to be free speech
protected by Section 8(c) of the Act.3 We conclude,
therefore, that the speeches of Respondent's supervi-
sors did not violate Section 8(a)(1) or interfere with
the election.
On February 21, a regular payday and the day
before the election, Respondent's employees received
their paychecks. Instead of distributing one paycheck
to each employee, Respondent distributed two
checks and a letter explaining the departure from the
normal procedu: e. The letter stated that the purpose
of the two checks was to show the employees how a
union dues checkoff worked. The letter explained
that the employee's paycheck contained his regular
pay minus the amount of union dues he would pay if
the Coco Palms were orerating under the Associa-
tion contract, while the second check contained the
amount that hac' been deducted from the first check.
The letter also stated that the Union had an initiation
fee of $10.
It is undisputed that Respondent computed the
sample dues checkoff by taking 1.3 percent of the
employees' gross pay for the February 1-15 payper-
I The Administrative Law Judge found that Alalem, in discussing
Respondent's days off policy, specifically directed attention to employee
Okabe who had been receiving days off to attend school In so finding, he
noted that Alalem did not deny directing attention to Okabe We note, in
this regard , that Alalem testified that his comments on the days off policy
were directed to all of the employees
2 The Association's collective-bargaining contract with the Union
provides that employees can be discharged for failure to abide by house
967
iod and adding $2 to that amount. It is also
undisputed that the 1.3 percent of gross earnings is
an amount that is fixed by the Union and is uniform
throughout the State, while the $2 represents the
"unit dues" which can be assessed by the individual
hotel units and is used solely for the benefit of each
particular unit respectively.
The Administrative Law Judge stated that the
applicable law allows a dual distribution of pay-
checks, as took place here, where the employer does
not materially misrepresent the amount of union
dues which the second check purports to represent
and where the two checks are not distributed in an
intimidating manner. The Administrative Law Judge
concluded that Respondent's distribution included
material misrepresentations in that it failed to
explain that the dues deduction check included a $2
unit dues fee (determined by the employees in the
unit) and further failed to explain the frequency with
which the unit dues would be assessed. He also found
Respondent's statement in the covering letter that
"there is also an initation fee of approximately $10
for new members" to be a misrepresentation. He
concluded, therefore, that Respondent's dual distrib-
ution had violated Section 8(a)(1) of the Act and had
interfered with the election. Although we agree with
the Administrative Law Judge's statement of the
law,4 we disagree with his conclusion that Respon-
dent's distribution of the two paychecks included
material misrepresentations. The facts are undisput-
ed that $2 is the amount of unit dues deducted at
Respondent's four organized hotels on the Island of
Kauai. In light of this, we find that Respondent did
not create a fictitious amount to represent as union
dues, but rather made a reasonable estimate of the
amount of dues that its employees would pay if they
chose the Union as their bargaining representative.
Furthermore, we note that Leland Nishek, the
Union's division representative and organizer, testi-
fied that the Union had explained to the employees
that they determined their own unit dues and that the
dues were assessed monthly. In view of Respondent's
use of a reasonable estimate of unit dues and the fact
that the employees were aware of their right to
determine their own unit dues and of the frequency
with which they would be assessed, we cannot find
Respondent's representation of the union dues to
include material misrepresentations.5 We also note
that the parties stipulated that section 14(a) of the
rules
9 Foodmal, er, Inc, d/b/a Jack-in-the-Bo r, 199 N LRB 110.
i TRW, Inc, 173 NLRB 1425, Yazoo Valley Electric Power Association,
163 NLRB 777, Fasco Industries , Inc, 173 NLRB 522: C'aressa, Inc. 158
N LRB 1745; Tunica Manufacturing Company, Inc., 182 NLRB 729; Aldon,
Inc, 201 NLRB 579
Allison-Haney, Inc, 185 NLRB 852.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
collective-bargaining contract between the Associa-
tion and the Union provides that $10 can be
deducted from an employee's salary as an initiation
fee. Although, in fact, this fee may not be collected,
in light of the parties' stipulation, we cannot find
Respondent's representation that there was such a
fee to be a material misrepresentation. Accordingly,
we find that Respondent's actions with regard to the
dues deduction checks neither violated Section
8(a)(1) of the Act nor interfered with the election.
In view of the foregoing, we shall order that the
complaint be dismissed in its entirety and certify the
results of the election.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of valid ballots
has not been cast for ILWU Local 142, and that said
labor organization is not the exclusive representative
of all the employees , in the unit herein involved,
within the meaning of Section 9 (a) of the National
Labor Relations Act, as amended.
MEMBER JENKINS, dissenting:
Respondent, in its meetings with employees shortly
before the election, clearly conveyed to the employ-
ees the impression that adverse changes would occur
in their working conditions, respecting such matters
as working hours, dress requirements, drinking in the
lounge after work, and the like. Respondent also
suggested to the employees that these changes would
result because of the Union's advent, if the Union
won the election. Such statements violate Section
8(a)(1) of the Act, as the Administrative Law Judge
properly found, and I would affirm him for the
reasons he sets forth in his Decision.
Similarly, the amount the Respondent paid the
employees in a separate envelope which it represent-
ed to be union dues which would be checked in the
Union won, was well over twice the actual amount of
union dues. The excess represented "unit dues"
which were voluntary with union members at each
hotel and which were used, not for union purposes,
but for such local and direct employee benefits as
parties, flowers, and the like; employees at each
location had the option whether to contribute to such
funds and how much the contribution should be. For
Respondent to represent this sum as "Union dues"
was clearly a misrepresentation and violated Section
8(a)(1), again as the Administrative Law Judge
correctly found.
For these reasons, I would affirm the decision of
the Administrative Law Judge.
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Administrative Law Judge: This
consolidated proceeding was heard before me in Lihue,
Hawaii, on June 20 and 21, 1973, with all parties
represented. The complaint is based on a charge filed on
March 29, 1973, and amended charges thereafter filed on
April 12 and May 8, 1973, by ILWU Local 142, herein
called the Union. The complaint originally issued on May
15, 1973, and on the same day the Regional Director for
Region 20 issued his Report on Objections in Case
37-RC-1788 and his order consolidating the complaint
case with the representation case.
The complaint alleges various acts of restraint and
coercion on the part of Island Holidays, Ltd., d/b/a Coco
Palms Resort Hotel, herein called Respondent, which are
claimed to violate Section 8(a)(1) of the Act.
The proceeding in Case 37-RC-1788 involves an election
held on February 22, 1973, pursuant to a Decision and
Direction of Election of the National Labor Relations
Board. The Union did not receive a majority of the votes
cast and filed timely objections. Certain of the allegations
in the Union's objections were subsequently withdrawn.
The remaining objections parallel the unfair labor practice
allegations in the complaint. The Regional Director
determined that the issues should be resolved in a
consolidated hearing. All parties were given full opportuni-
ty to participate in the consolidated hearing, and after the
close thereof the General Counsel, the Charging Party, and
Respondent each filed briefs.
Upon the entire record in this consolidated proceeding,
and upon my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the operation of resort hotels
located in the State of Hawaii including the Coco Palms
Resort hotel located on the Island of Kauai. During the
past calendar year, Respondent, in the course and conduct
of its business operations , received gross revenues in excess
of $500,000. During the same period, Respondent pur-
chased and received materials valued in excess of $50,000
which originated at points located outside the State of
Hawaii. I find Respondent to be engaged in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act, and assertion of jurisdiction to be
appropriate.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
COCO PALMS RESORT HOTEL 969
III. THE ALLEGED UNFAIR LABOR PRACTICES
The conduct alleged as violative of Section 8(a)(1)
occurred during a week or a 10-day period immediately
preceding the Board-conducted election on February 22,
1973. The conduct included alleged threats by supervisory
employees to cut or change hours, more strictly to enforce
work rules or to limit employee privileges, and to alter or
shift assignments causing loss of job classification and
benefits. The complaint also contained an allegation that
Respondent "withheld fictitious union dues from employ-
ees' paychecks it order to persuade employees to vote
against the Union." i Respondent denies that it engaged in
any of the alleged unlawful threats, and denies that the
"fictitious withholding" occurred in circumstances which
would render it ar unlawful interference with the Section 7
rights of the employees.
We will first consider the background against which the
alleged unlawful incidents occurred, then treat with the
specific incidents themselves, and finally make a determi-
nation of their lawful or unlawful nature.
A. The Background
Respondent is a wholly owned subsidiary of Amfac Inc.
Respondent operates 11 resort hotels located in the State of
Hawaii. This proceeding concerns only Respondent's Coco
Palms Resort Hotel located on the Island of Kauai. At all
material times, the Union was the chosen representative of
Respondent's employees at four of its hotels, including one
located on the island of Kauai known as Hanalei
Plantation. Respondent is a member of an employer
association knowr. as Hotel Employers' Association of
Hawaii, hereinafter called the Association. The Associa-
tion and the Union are parties to a collective-bargaining
agreement covering approximately 15 hotels located on
various islands in the State of Hawaii. This contract covers
employees of the four hotels of Respondent which have
chosen the Union to represent them. Section 33 of the
contract provides -hat when "the Union is recognized as
the sole collective bargaining representative of employees
of any additional hotel which is operated by a member of
the Association, then this agreement shall apply to such
hotel ...."
On September 27, 1972, the Union filed a petition in
Case 37-RC-1788 seeking an election among Respondent's
Coco Palms employees. Pursuant to a Direction of Election
issued by the Board on January 31, 1973, an election was
conducted among such employees on February 22, 1973.
The official tally cf ballots shows that, of approximately
230 eligible voters, 96 cast ballots for the Union, 2 for
Hotel Restaurant Employees and Bartenders Union Local
5, AFL-CIO, and 124 for neither.
In view of Respondent's membership in the Association,
it was obvious from the outset that, should the employees
at Coco Palms choose the Union, they would become
subject to the terms of the existing Association contract.
Thus, the working conditions as provided in that contract
as contrasted with existing nonunion working conditions at
Coco Palms necessarily became a central issue in the
organizational campaign. Understandably, the Union
undertook to stress the advantages which it viewed
contract coverage to bring. In October 1972, shortly after
filing the petition, the Union sent each unit employee
written leaflets concerning the filing of the petition, the
likelihood of an election, and setting forth somewhat
detailed comparison sheets listing some 30 or more items
which pertained to working conditions that would alleged-
ly come to the employees if covered by the Association
contract as contrasted with their existing situation at Coco
Palms under nonunion conditions.
In October 1972, shortly after the union comparison
sheets had been circulated among the employees, Law-
rence P. Perry, manager of labor relations for Ainfac called
a meeting of the supervisory employees at Coco Palms.2
This initial meeting was followed by four or five other
meetings with supervisors which took place between that
time and February 1973. According to John Kaanaana,
Respondent's food and beverage manager, at this initial
meeting Perry undertook to inform the supervisors of the
Union's petition and to suggest to them that they do some
"soul searching", "to try to go back and understand what
the employees might be upset about," and "to go out and
try to mend fences a bit." At this and all subsequent
meetings prior to the last one, Perry would discuss the
union comparison sheets with the supervisors and seek to
answer their questions . He continually admonished them
to refrain from threats or promises to the employees and
told them not to hold group meetings but to answer
individual questions insofar as possible. When Perry met
with the supervisors on February 15, the last meeting
preceding the election, however, he told the supervisors
that within the next day or so each should meet with his
staff. Supervisors were told to advise the employees of the
forthcoming election and to urge them to vote. While Perry
reiterated the instruction not to threaten or make promises,
he also told the supervisors that they might "compare
[their] experiences working with a union hotel" with the
situation at Coco Palms if they had had such experiences.
The occurrences taking place at the meetings which
followed will be discussed below.
On February 16, the Union circulated additional
information among the employees by way of leaflets in
which it undertook to refute claims of Respondent. and to
which it once again attached comparison sheets similar to
those previously distributed. Although the testimony of
Perry and other supervisors of Respondent suggests that
Respondent viewed the union comparison leaflets as
inaccurate and incorrectly representing the true nature of
the working conditions at Coco Palms, at no point during
the entire preelection campaign did Respondent undertake
to counter the Union's comparisons with point-by-point
written comparison sheets of its own.
The alleged unlawful threats, which also serve as a basis
for objections to the election, all took place at the meetings
i Par. VI(a) of the complaint , in its entirety , and par V I(C), to the extent and some not Although some aspects of the management of these hotels are
it alleged unlawful conduct by Lawrence Perry, were each dismissed during centralized, including of course the negotiation and execution of collective-
the course of the hearing without objection. bargaining agreements , each hotel is vested with substantial autonomy in
2 As noted above, Respondent operates II resort hotels, some organized the day-to -day functioning of its own operation
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Perry had directed the supervisors to hold in the
week immediately preceding the election.
B. The Meetings With the Supervisors
On February 16, Anneliese Lermann, executive house-
keeper for all Respondent's hotel operations, met with the
Coco Palms housekeeping staff. This was the first of the
meetings which Perry had directed. According to Lermann,
while the meeting included some discussion of various
operational problems, the forthcoming election was also
discussed and Lermann states that she brought up "some
housekeeping procedures in our union hotel [she] thought
might be of interest to the Coco Palms employees because
of the upcoming union election." In this connection,
Lermann testified that she talked about scheduling and
days off at Hanalei Plantation. Lermann states that she
pointed out that at Coco Palms the housekeeping work is
scheduled by seniority with the available work distributed
on a seniority basis so that in slack times the senior
employees get the first assignments and the junior
employees what is left over. Lermann told the employees
that at Hanalei, under the Association contract, the
workload is distributed pro rata among all the housekeep-
ing employees. This would mean that when work was slack
the senior employees might not get a full 8-hour day.
Lermann appears to have volunteered this information as
well as other matters relating to days-off practices at
Hanalei. Her testimony with regard to the latter is not
altogether clear, although apparently she undertook to tell
the employees that at Hanalei under the union contract
they might be scheduled for 8 consecutive days without a
day off and that this was a departure from the practice at
Coco Palms. Lermann denies telling the employees that if
the Union won the election the Hanalei scheduling
practices would necessarily be instituted at Coco Palms.
She does not claim, however, that she also took steps to
make it clear to the assembled employees that scheduling
practices at Hanalei were not necessarily required by the
Association contract.3
Jane Lovell, a maid at Coco Palms, was the only
employee present at this meeting with Lermann who was
called upon to testify. Lovell testified that she had heard
Lermann make some remark to the effect that if a union
came in employees would receive warning slips if they
broke house rules. The General Counsel concedes, howev-
er, that no such violation is alleged in the complaint. Lovell
also gave a somewhat disjointed account of alleged
statements by Evelyn Estrada, a Coco Palms supervisor,
signifying that Lovell might be "fired next." Lovell does
not sufficiently connect this with the election or the Union
to support a finding. Accordingly, I do not rely upon the
testimony of Lovell in any respect.
Another employee meeting was conducted on February
16 by Joe Alalem, the bar manager, among the cocktail
waitresses and bar employees. John Kaanaana, Respon-
dent's food and beverage manager, was also present during
part of this meeting. Alalem testified that he opened the
meeting "by bringing up the subject about the coming of
the election," by urging all employees to vote, and by
showing them a sample ballot. Alalem then "threw the
meeting open for questions and answers." Faith Okabe, a
cocktail waitress and one of the approximately 18 persons
present at the meeting, testified that when the issue of
Respondent's dress. code came up Alalem had stated that
Coco Palms had heretofore been lenient on the employees
but that "once the Union got in we could have none of this
underwear bit and we'd have to shape up." It was brought
out that by "this underwear bit" Alalem was referring to
Respondent's longstanding dress code which required that
the cocktail waitresses wear brassieres and stockings while
working. Apparently, this was a rule which on frequent
occasions had been breached, and at such times it had
been Alalem's practice to reprimand the girls and tell them
to follow the code in the future, but up to that time no
employee had been penalized for such code violations.
Okabe further testified that Alalem had stated to the
employees that should the Union come in they would no
longer be able to go into the lounges after completing their
shifts for a "pau hana" (after-hours) drink without getting
permission from the management . It appears that for some
time it had been an accepted practice at Coco Palms for
employees finishing workshifts to go into the lounges if
they wished for a so-called "pau hana" drink, and that no
specific permission from management had been needed.
Alalem admits that he had volunteered that at Kauai Surf,
a nearby hotel where he had worked and whose employees
were covered by the Association contract, employees could
only visit the lounges after hours when they had obtained
specific permission from management. Okabe also testified
that Alalem had told the employees that should the Union
come in, "We would not be able to request certain days
off." She states that Alalem accompanied this remark by
looking at her and saying " like a certain person who had
been requesting days off for school." Okabe states that it
had been the practice at Coco Palms for employees to note
requested days off on their work schedules, and that
management had granted' such requests to the extent
possible. In her own case. Okabe states she had been going
to school, and that management's accommodation in this
regard had enabled her to meet her schedule most of the
time, although on occasions this had not been possible.
Alalem, corroborated in substantial measure by Kaanaa-
na, acknowledges the dress code to have been a subject of
discussion . He asserts the dress code had long been a
subject of debate at employee meetings, however, and that
it had always been his practice to enforce it and to remind
the employees of the need to comply with it. Alalem denies
that he threatened to use more drastic measures than had
been taken in the past should the Union come in . Alalem
also acknowledges that acting within his understanding of
Perry's instructions he had volunteered the information
about after-hours drinking policies at the Kauai Surf.
Alalem concedes that, in noting that the Coco Palms policy
did not then require specific permission, he had stated to
3 In the Association contract, scheduling is controlled by sec 5. This appears to grant a covered hotel great latitude in setting schedules, and I
section has detuled requirements with respect to the posting of schedules , note nothing in the section which would preclude a hotel from scheduling
and places certain limitations on the number of consecutive hours or days on a seniority basis or following similar days-off practices to those then
that an employee can work without overtime or days off. It otherwise being followed at Coco Palms.
COCO PALMS
the employees that "if the Uniorr came in, our policy might
change into that ." Alalem did not point to anything in the
Association contract which would require any change in
policy in this regard, and an examination of the contract
itself does not show such requirement to exist . Alalem
concedes that a question about days off was brought up at
the meeting , and he does not deny he specifically directed
attention to Okabe in making his reply. Alalem denies,
however, that he threatened to change Respondent's
existing policy, except to point out to the employees that
Respondent's present somewhat generous days-off practice
was in part made possible at Coco Palms because he
himself frequently filled in for employees who wished to
take the day off. Alalem states that he undertook to make
clear that as a supervisor under the Association contract he
could no longer do the work of a nonsupervisory employee.
A third employee meeting was conducted on February
17 among the food and beverage department employees.
From 40 to 50 employees attended this meeting, which was
presided over by John Kaanaana , the food and beverage
manager . Departmental supervisors were also present.
Kaanaana opened the meeting by announcing to employ-
ees that he had recently been appointed food and beverage
manager . He then reminded them of the forthcoming
election , encouraged them to vote , and opened the meeting
for questions . Respondent's existing profit -sharing plan,
and the effect of the Association contract on it came up in
the discussion . Kaanaana told the employees that should
the Union come in the existing contract would require that
the contract pension plan supersede it.4 There was some
further discussion -egarding the effect of a discharge on an
employee's existing profit -sharing rights. It does not
appear, however, that Kaanaana's comments in this regard
bore any relationship to the forthcoming choice of a union.
Employee Bloss testified that there also had been discus-
sion concerning the employees requests for days off, and
the possibility that night-shift employees might be required
to work days if their working conditions were controlled by
the Association contract. This was a matter of great
concern to many who could only work on one shift or the
other. While the testimony of Bloss in this regard is far
from clear, apparently the discussion related to contract
provisions permitting the scheduling of split shifts. Kaa-
naana testified that he did discuss the contract provisions
on split shifts. He states that he noted that the contract
permitted the scheduling of split shifts among employees in
the food and beverage department, whereas split shifts
were not used among such employees at Coco Palms.
Kaanaana denies, however, that he told the employees that
in the event the Union won the election Coco Palms would
adopt the practice of scheduling split shifts. Kaanaana,
however, did not point out that while the contract
permitted split shifts in the food and beverage department
it did not require it. Thus, contract coverage need not bring
about a change in existing Coco Palms policy.
A final meeting was held on February 19 between Perry
and several employees who had some questions and had
requested a meeting for the purpose of getting answers.
Perry had with him a copy of the Association contract and
RESORT HOTEL 971
the Union 's comparison list. The meeting was devoted to
going over various matters relating to the contract and to
existing practices of Coco Palms. Employee Bloss testified
that he had raised a question concerning a provision of the
contract providing for the classification of supplemental
employees . Perry quoted from the provision in the contract
pointing out that the supplemental employees were defined
as "those employees who normally worked less than twenty
(20) hours per week on an annual basis and/or by reason
of being a student , or for any other reason , are not
available or cannot be scheduled for work on all shifts and
at all hours ." Perry indicated that should a regular part-
time employee signify that he was not available for
scheduled work for all shifts his classification could be
changed from regular full -time or regular part-time to that
of supplemental employee with a consequent loss of rights.
Perry supplemented his explanation by pointing to a
situation at a hotel on the Island of Maui at which an
employee had been called on to work on a day when he
was unable to do so , and his classification had been
changed to that of supplemental employee. Perry denies,
however, that he told the employees that if the Umon
should come in this would necessarily result in any Coco
Palms employee being reclassified should he not be
available for assignment on another shift.
C. The Alleged Withholding of Fictitious Union
Dues From Employees' Paychecks
The complaint alleges that on the day preceding the
election Respondent "withheld fictitious union dues from
employees ' paychecks in order to persuade employees to
vote against the Umon."
The undisputed facts established that Respondent's
employees are paid twice monthly. A regular semimonthly
payday covering the period from February 1 to 15 took
place on February 21, 1973 . At this time , Respondent
delivered to each unit employee two paychecks and a letter
purporting to explain its departure from the norm. The
enclosed letters, addressed to each employee by his first
name, were signed by Grace Guslander, manager of Coco
Palms. The letters were all identical except that the
amounts listed would vary in accordance with the
individual employee 's earnings during the pay period. The
letter addressed to Faith Okabe, a cocktail waitress, is
typical and reads in full as follows:
Your pay check is $3.28 short this payday. We did
this to show how a union dues check -off works. The
$3.28 that would be sent to the Umon is contained in
the attached envelope . Of course, if it were a real
check-off, there would be no additional envelope.
There have been questions as to what a check-off is and
how it works . This is the best way we could think of to
explain it. It is the actual amount that would be
deducted under ILWU Hotel contracts in Hawaii.
There is also an initiation fee of approximately $10 for
new members and from time to time the union may
make assessments , invoke fines or authorize dues
increases . We estimate that the union would receive
4 Art 8 of the Association's pension plan and trust agreement appears to
require Such a result.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about $20,000 a year from our employees at Coco
Palms. It is pretty obvious why they are interested in
you, isn't it.
Between now and election day I urge you to
carefully examine what the union has been saying. I
think you will recognize a lot of empty promises. One
tactic they often use is to tell you that everyone else is
going to vote for the union so you should jump on the
band wagon. Don't believe it. Make up your own mind.
I honestly believe that if you carefully compare what
we already have with what the union has to offer.
(including union dues, assessments, loss of income
from strikes, etc.) you will realize that a union at Coco
Palms is not in you best interest.
The election on February 22, 1973, will be a secret-
ballot election. You are the only one who will know how
you voted. Just because you may have signed a card
does not obligate you to vote for the union.
Undisputed evidence shows that the deductions purport-
ing to be union dues were computed by taking 1.3 percent
of the employees' gross pay for the February 1-15 pay
period, and adding the sum of $2 thereto. In the example
used, Faith Okabe's gross pay for the 2-week period was
$98.67. One and three-tenths percent of this amount came
to $1.28. The additional $2 brought to $3.28 the amount of
Okabe's separate "dues deduction." The so-called "dues
deduction" was figured in the same manner for each of the
other employees in the Coco Palms unit.
Undisputed evidence establishes that dues going to
ILWU Local 142 are computed at the rate of 1.3 percent of
a member's gross pay. Section 14 of the Association
contract, which would cover Coco Palms employees if they
chose the Umon, contains a checkoff provision whereby an
employee might authorize the hotel to check off the
"Union's local dues," the "Union unit dues," and "($10)
for an initiation fee" with the hotel to transmit the sums
deducted to the Union. The 1.3 percent of gross pay
"union local dues" is a figure fixed by the Local as a whole,
is uniform throughout the State, and is payable only in
those pay periods where an employee has gross earnings.
The sums collected as "union local dues" go into the local
treasury for general union support.
The so-called unit dues, although also forwarded to the
Union when deducted, fall into a different category. The
undisputed testimony of Union Representative Nishek
establishes that unit dues are used for the sole benefit of
employees in the individual hotel units from whom they
have been collected. Only after the employees in an
individual hotel have chosen the Union does the subject of
unit dues come up for consideration. Then the employees
at that hotel alone determine whether or not to assess
themselves for unit dues. Should they vote to assess unit
dues, they fix the amount. After having fixed any set
amount, the hotel will check it off from each employee
authorizing checkoff and forward the "unit dues" with the
"union dues" to the Union. Unit dues, however, do not go
into the union treasury but are credited to, and can only be
used by, the employees of the individual hotel unit from
which they have come. Unit dues money is often, but not
necessarily, used for such matters as parties, flowers for the
sick, and the like. Use is determined by individual hotel
unit employees alone. In most instances, employees in
those hotels already covered by the Association contract
have voted to assess unit dues. Often, however, this does
not take place when the hotel unit first comes under
contract coverage, but at a later time . While the amounts
of assessed dues vary, a frequent assessment is $2 a month.
The contract provides that a hotel need not make
deductions more than once a month.
The union constitution authorizes the Union to charge
an initiation fee up to $10. This, however, is not
mandatory. Nishek testified that it is not customary for an
initiation fee to be charged in a newly organized unit. The
union leaflets distributed to employees make reference to
union dues as being 1.3 percent of gross earnings. The
Union therein also represents that there will be no union
initiation fee. These same leaflets make no reference
whatsoever to unit dues, or to the checkoff provisions in
the contract.
D. Discussion of the Issues and Conclusions
With the filing of a petition and the likelihood of an
election, the employees faced a clear-cut and circum-
scribed choice. If they were to choose the Union, they
would find themselves covered by the existing contract
already controlling the working conditions at many other
hotels. On the other hand, if they were to reject the Union,
they would presumably retain the working conditions
presently in effect. The union campaign purported to
present a detailed comparison showing the improvements
in working conditions that would come should the
employees choose to come under the Association contract.
Respondent did not elect to challenge this point by point
with written comparison sheets of its own, but waited until
the week preceding the election to explain its differences, if
any, with the Union's comparisons. Clearly Respondent
had a right to make its own comparisons and to point out
to the employees the changes that the contract would
necessarily bring about. However, Respondent had no
right to threaten, either directly or by implication, that the
advent of the Union would bring about changes in working
conditions not required by the contract, nor could it
misrepresent results that would eventuate should the
Union be chosen. The issue before us is whether Respon-
dent's actual conduct exceeded permissible bounds where
it met with the employees and when it sent out the so-
called "dues deduction" checks.
Aside from the "dues deduction" issue , the complaint
charges unlawful threats by Respondent to cut hours, to
change days off, to enforce a stricter dress code, to curtail
after-hours drinking privileges, to change shift assign-
ments, and to change job classifications in the event the
Union came in. All of this misconduct is claimed to have
transpired at the employee meetings that Perry directed be
held a week before the election . Admittedly, such meetings
were held for the express purpose of advising employees
concerning the forthcoming election, and to permit them to
ask questions of management representatives relating to
existing working conditions as compared with those likely
to be forthcoming should they choose the Union.
It is not shown that at these meetings management
engaged in open and direct threats. Respondent's supervi-
COCO PALMS RESORT HOTEL
sors had been briefed carefully on the need to avoid
making affirmative threats of loss or promises of benefit.
However, when we consider the election campaign as a
whole, the purpose of these meetings and the entire
testimony as to what took place, I am satisfied that
although avoiding overt forms of misconduct Respondent's
supervisors acted in a manner calculated to create the
impression among the employees that the advent of the
Union would bring about changes in existing working
conditions not necessarily required by the contract,
without indicating this but suggesting the changes to be a
consequence of union choice. I view this as an implied
threat and an interference with the Section 7 rights of the
employees.
Thus, Mrs. Lermann, who had charge of housekeeping
functions at all of Respondent's hotels, volunteered
information to the Coco Palms housekeeping employees
regarding scheduling at Respondent's nearby Hanalei
Plantation. Lermann brought out that at Hanalei the
seniority scheduling practices in effect at Coco Palms were
not followed but that in the housekeeping department
available work was prorated among all employees. Were
such a practice to be followed at Coco Palms, it would
obviously mean less work for senior employees in slack
times. While Lermann avoided representing that the
advent of the Union would of necessity bung pro rata
scheduling to Coro Palms, she failed to explain that the
Association contract did not compel it at Hanalei, and that
choosing the Union need not bring it to Coco Palms. In
view of the purpose of the meeting and Lermann's
position, it would be reasonable for the employees to infer
that since this was the practice at Hanalei and Hanalei was
the only other one of Respondent's union hotels on Kauai,
the scheduling was a necessary consequence of the
contract. Under the circumstances, I view this conduct as
unlawful interference with employee rights. Lermann's
representations regarding days off may have had a similar
thrust; but, I do not view the record in this regard as
sufficiently clear to support the same conclusion.
The meeting of the bar employees with Alalem, like the
other employee meetings, was triggered by the forthcoming
union election. While the issue of the dress code and its
enforcement had long been a subject of controversy, it
came up at this time in a union context. Despite the denials
of Alalem made in response to leading questions, I credit
Okabe's testimony to the effect that Alalem had told the
employees that Coco Palms "had been lenient on us," but
"once the Union got in, we'd have to shape up."
Respondent clearly had the right to enforce its dress code
as it had in the past; but the Association agreement
appears to impose no additional restrictions on its doing
so. In view of this, to indicate to employees that past
leniency in enforcement would no longer prevail should a
union come in becomes an obvious threat.
A similar situation prevails with respect to Alalem's
remarks concerning days off. Once again I credit Okabe
when she testified that Alalem had told the employees that
they would no longer be able to request days off in the
same manner, and singled out Okabe as an illustration of
one who had been regularly making such requests in order
to go to school. Alalem defends his reference by asserting
973
that the contract would necessarily bung a change because
it would forbid him as a supervisor to fill in for employees
taking time off. Apparently Alalem would have us believe
that Respondent's generous days-off practice had come
about solely because he filled in. I seriously question this.
No doubt on occasion Alalem had filled in, but I doubt
this to have been the usual situation or even to have been
likely in the case of a cocktail waitress for example. It is far
more reasonable to conclude that a fill-in by Alalem,
himself, was an exception , and only came about in unusual
or emergency situations , while in most instances the
existing days-off practices had been maintained by calling
nonsupervisory fill-ins . There is nothing in the Association
contract which appears to limit Respondent in its schedul-
ing of days off. Alalem might have appropriately advised
the employees that such requests would continue to be
granted should the Union come in subject only to the
limitation of a supervisory fill-in. Instead , he failed to
make this clear but created the impression that the advent
of the Union was likely to bring about a complete change
in existing policy. I deem this, too, to constitute an
unlawful interference with employee rights.
Alalem admits that he volunteered information regard-
ing the more strict after-hours drinking policy in effect at
the Kauai Surf under the Association contract. Alalem's
denial that he had ever affirmatively represented that the
existing more liberal Coco Palms practice would be
changed is offset by his conceding that he told the
employees that should the Union come in "our policy
might change." This, too, I regard as another element of
unlawful interference with employee rights.
The third employee meeting among the food and
beverage employees was, like the others, oriented toward
the forthcoming election . John Kaanaana appears to have
correctly advised the employees that the existing profit
sharing would be superseded by a pension plan should the
Union be chosen. When the discussion turned to split
shifts, however, Kaanaana, like Lermann and Alalem,
chose to leave a misleading impression as to what might
transpire. Existing Coco Palms practice was to have day
and night shifts. Employees thereon would not be changed
from one to the other or be required to work on split shifts
absent special circumstances. The Association contract
permits, but does not compel, split shifts in the food and
beverage department. Kaanaana avoided representing that
existing Coco Palms policy would necessarily be changed
in this regard should the Union be chosen, but at the same
time he also avoided calling to the attention of the
employees that split shifts were not mandatory under the
contract. Thus he failed to allay their expressed fears that
with a union split shifts might become the practice.
Kaanaana's conduct appears to constitute one more
element of a consistent pattern among Respondent's
supervisors to let the employees think that the contract
would necessarily bring about changes in areas of concern
when in fact existing practice might continue despite the
contract. In such a context, the representations of
Kaanaana constituted an implied threat and I so find.
Perry's discussion with Bloss and certain other employ-
ees, however, does not appear to have exceeded permissible
bounds. Perry did no more than make specific reference to
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract language relating to the classification of supple-
mental employees, and call to the attention of the
employees at the meeting an incident where that provision
had been invoked at another hotel on another island. Perry
did not represent that a similar situation would necessarily,
or likely, arise at Coco Palms, or state that the contract
would require Respondent to undertake any general
reclassification among the Coco Palms employees. Accord-
ingly, I find that at this informal meeting between Perry
and the employees nothing occurred which properly can be
characterized as unlawful interference with employee
rights.
With respect to Respondent's preelection conduct at
employee meetings as a whole, however, and with
particular reference to the conduct of Alalem regarding the
dress code, days-off requests, and after-hours drinking; the
conduct of Lermann in regard to work scheduling; and the
conduct of Kaanaana regarding split shifts, I am satisfied
that the record establishes a pattern of unlawful interfer-
ence with employee rights. The meetings were specifically
held because of the forthcoming election, and were thrown
open for discussion of questions relating thereto. The
Association contract and its possible effect upon existing
working conditions admittedly was the central issue and a
matter of major concern to all employees present.
Respondent could have used the occasions to point out
areas where the contract necessarily brought about
changes in existing working conditions. However, when the
employees expressed concern in areas where the contract
gave management discretion to retain existing practices,
Respondent had an obligation to refrain from making it
appear that choice of the Umon would, or was likely to,
bring about changes in prevailing conditions. Instead it
pursued a contrary course calculated to cause the employ-
ees to believe that choice of the Union would lead to a
variety of changes regardless of contract requirements. I
view this conduct as unlawful interference with employee
rights, and to constitute an implied threat that Respondent
would necessarily, or would likely, change existing prac-
tices with the advent of the Union. Thus with regard to the
incidents set forth above and for the reasons stated I find
that thereby Respondent engaged in conduct violative of
Section 8(a)(1) of the Act.
The circumstances surrounding the so-called "dues
deduction check" are not in factual dispute. Respondent
argues the applicable law to permit the sending of the dual
checks under certain circumstances. The General Counsel
claims the checks sent to be a "fictitious" withholding of
union dues, and the applicable law to proscribe a
misrepresentation of this nature. Respondent recites a
number of cases involving dual checks distributed under
similar circumstances, and states that it views Board policy
as permitting an employer to send such checks where it
does not materially misrepresent the amount of union dues
which the second check purports to represent, and where
the two checks are not distributed in an intimidating
manner.5 Respondent rests its defense in the instant case
5 TRW, In( . 173 NLRB 1425, Yazoo Valley Electric Power Assn, 163
NLRB 777, Pasco Industries. inc, 173 NLRB 522, Caressea, Inc, 158
NLRB 1745. 1 unica Mfg Co Inc , 182 N 1.RB 729, 4ldon, Inc, 201 NLRB
579 Although varying factual situations are to be found in each of these
on the proposition that the distribution occurred in
circumstances indicating no material misrepresentation,
and that it is not shown that the distribution was made in
an intimidating manner. While the latter is unquestionably
true. I am satisfied that the distribution did include a
material misrepresentation, and that under the circum-
stances it constituted an unlawful interference with the
Section 7 rights of the employees.
The distribution of the dues-deductions checks must be
viewed in the context of the entire election campaign
including dues and the checkoff as campaign issues, and
with consideration given to the timing of the distribution,
the specific amounts deducted and the contents of the
covering letter.
The distribution was made ostensibly to show the
employees how "a union dues check off works." Respon-
dent makes the somewhat gratuitous assumption that the
operation of a dues checkoff was an area of concern to the
employees. Prior to the February 21 letter, however, the
only mention of union dues is found in the Union's
comparison sheets. Such reference represents dues and
initiation fees to be "1.3 percent of gross earnings ($1.30
for every $100 earned); no initiation fee." It is not shown
that contract checkoff provisions as well as dues or
initiation fees were ever discussed or explained at any other
point in the preelection campaign. Unit dues as distin-
guished from percentage union dues were apparently never
a subject of discussion with or among any of the Coco
Palms employees at any time. This is scarcely surprising
since the assessment of unit dues was an employee choice
which would be first offered after they had selected the
Union as their bargaining representative. Respondent
waited until February 21, the day before the scheduled
election, and with no reasonable time remaining for the
Union to rebut their accuracy to place in the hands of the
employees the dual checks and the covering letter it used to
explain the workings of a checkoff. The dues-deduction
checks included not only 1.3 percent of gross earnings, but
in addition a $2 unit dues fee. No effort was made in the
covering letter to explain why the purported dues deduc-
tion exceeded 1.3 percent of the gross earnings, or to
indicate whether in choosing the Union employees would
face the same or different dues deductions in one or both
their semimonthly checks. The covering letter represents
the dues-deduction check as being "the actual amount that
would be deducted under ILWU Hotel contracts in
Hawaii ." It is true that the $2 figure chosen represents the
actual unit dues deductions being made at the four
organized hotels on the Island of Kauai. However, as
shown above, there is no fixed standard amount for unit
dues, and Coco Palms employees should they choose the
Union would retain the right to reject any assessment
whatsoever for such purpose. In addition it stands
undisputed that unit dues when assessed are deducted from
only one semimonthly paycheck. Respondent's letter
suggests no such limitation. Respondent also represents
that "there is also an initiation fee of approximately $10 for
cases f would generally agree that considered together they stand for the
proposition that the distribution of dual checks may he lawful provided
there has not been a material misrepresentation, or distribution has not been
made in an intimidating manner.
COCO PALMS RESORT HOTEL
new members .. . ." The implication is that this in
addition to the dues will be a subsequent deduction.
Initiation fees while permissible are not mandatory, are not
usually assessed on a newly organized group, and had been
expressly disavowed by the Union for Coco Palms
employees.
Under the circumstances and particularly when it is
noted that the distribution was timed so that the Union
had no reasonable opportunity to rebut Respondent's
representations, the nature of the misrepresentation be-
comes obvious and its material nature manifest. The
distribution as made was calculated to create the impres-
sion among the employees that should they choose the
Union each paycheck would show dues deductions not
only of a percentage of gross earnings but also for an
unexplained $2 in addition thereto, with an indication that
at some later date an initiation fee would be added to this.
This was a representation misleading in the extreme, and
its inaccuracy could readily have been determined by
Respondent. Accordingly I find the dues deduction checks
and their distribution to contain material misrepresenta-
tions and to be conduct violative of Section 8(a)(1) of the
Act.
TV. OBJECTIONS 10 THE ELECTION IN CASE
37-Rc-1788
As set forth above, this is a consolidated proceeding in
which it was directed that a hearing be held to rule upon
evidence concerning objections to the election as well as
the unfair labor practices alleged. It has been noted that
the objections parallel the unfair labor practices, and that
no independent evidence was offered concerning the
objections alone.
I have found teat Respondent, acting through its
supervisors, in the week preceding the election engaged in
conduct calculated ro cause the employees to believe that
the advent of the Union was likely to bring about changes
in employer policies and practices in areas where the
contract required no change. I further found such conduct
to be violative of Section 8(a)(1) of the Act. Such conduct,
occurring as it did in close proximity to the holding of the
election, and directly aimed at influencing the election
choices clearly raises substantial and material issues with
respect to the conduct of the election, and justifies a
recommendation that the results be set aside.
975
I have also found that by sending the two checks and the
accompanying letter, under the circumstances described
above, Respondent engaged in material misrepresentations
with respect to the amount of dues to be deducted should
the employees choose the Union, and that such conduct
was violative of Section 8(a)(1) of the Act. This conduct
coming on the eve of the election and directly aimed at
influencing its result is also sufficient in and of itself to
raise substantial and material issues with regard to the
conduct of the election and to constitute grounds for
setting aside the election, and I so find. Accordingly, I shall
recommend that the election heretofore conducted be set
aside and that a new election be directed by the Board.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer as defined in Section 2(2)
of the Act engaged in commerce and operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threats of more strict enforcement of the dress
code, of changing policies on days-off requests, of
imposing limitations on after-hours drinking, of changing
the work schedules, and of imposing split shifts, as well as
by distributing dual checks misrepresenting the amounts of
union dues deduction, Respondent has interfered with,
restrained, and coerced employees in the exercise of the
rights guaranteed by Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom, and to take certain affirmative action designed
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]