Embassy Suites Resort

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1313 (N.L.R.B. 1992)

1313
309 NLRB No. 187
EMBASSY SUITES RESORT
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has moved for a new hearing, contending that the
judge erroneously quashed its subpoena of Union Representative
Gabe Aio, whose testimony regarding the exact salary paid by the
Union to Rebecca Covert as a union employee during the time she
was also employed by the Respondent purportedly would have estab-
lished that she was a biased witness. We deny the motion. Although
without Aio’s testimony the judge did not know the amount of com-
pensation Covert received from the Union, he did know, in making
his credibility determinations, that Covert was a part-time paid em-
ployee of the Union while employed by the Respondent and that she
claimed that she did not know the amount of compensation she re-
ceived from the Union. Under these circumstances, we do not find
the judge’s quashing of Aio’s subpoena to constitute an abuse of his
discretion or to constitute adequate basis for reversing his credibility
findings.
The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
Finally, the Respondent moves to strike the General Counsel’s
cross-exceptions for failing to designate by precise page and exhibit
citation the portion of the record relied on in support of its cross-
exceptions, as required by Sec. 102.46(b) of the Board’s Rules and
Regulations. We deny this motion because the General Counsel’s
cross-exceptions, although not conforming in all particulars with Sec.
102.46(b), are not so deficient as to warrant their rejection. Monarch
Machine Tool Co., 227 NLRB 1265 fn. 2 (1977).
2 Even if the charge did not support the complaint, the conduct
would be objectionable. We therefore affirm the judge in this regard.
However, in doing so, we disavow the judge’s statement set forth
in his discussion of Objection III, that Supervisor Linmark’s threat
was an ‘‘isolated unauthorized utterance.’’ We note that it was made
in the presence of approximately 20 employees. Further, in light of
the testimony of employee Rebecca Covert that she did not mention
Teske’s unlawful threat to her to any employees, we find unwar-
ranted the judge’s characterization of the threat as ‘‘the type of re-
mark which would likely be passed around within the work force.’’
However, in the context of Linmark’s threat, we find it to be objec-
tionable. We also find unwarranted the judge’s interpretation that the
language used by the Respondent in its newspaper advertisement to
recruit employees intimated the Respondent’s desire to operate with-
out rank-and-file employees having union representation.
Lotus Suites, Inc., d/b/a Embassy Suites Resort and
International Longshoremen’s and Ware-
housemen’s Union, Local 142, AFL–CIO. Cases
37–CA–2742 and 37–RC–2964
December 16, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 18, 1991, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party Union
filed cross-exceptions and supporting briefs. The Re-
spondent thereafter filed an answering brief to the
General Counsel’s and the Charging Party’s cross-ex-
ceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
1. The judge found that the Respondent, through its
supervisors, Todd Teske and Rana Linmark, violated
Section 8(a)(1) by threatening employees, just before
the election, that a wage increase would not be granted
if they voted for the Union. The judge denied the Re-
spondent’s motion to dismiss the complaint. In that
motion, the Respondent, citing Nickles Bakery of Indi-
ana, 296 NLRB 927 (1989), contended that there was
an insufficient factual connection between the charge
and the complaint allegations on which the violation is
based. In its exceptions the Respondent renews its mo-
tion to dismiss the complaint. We find, although for
reasons different from those of the judge, that the un-
derlying charge is sufficient to support the complaint
allegations, and we further find, for reasons set forth
by the judge, that the threats of Supervisors Teske and
Linmark violated Section 8(a)(1).2
The charge filed by the Union alleged that the Re-
spondent violated Section 8(a)(1) and (3) of the Act.
The preprinted unfair labor practice charge form con-
tains a space for detailing the ‘‘Basis of the Charge.’’
In that space, the Union typed in the following lan-
guage:
Within the last six months, and thereafter, the
above-named Employer, in order to discourage
membership in a labor organization, discriminated
in regard to the hire and tenure of employment
and to the terms and conditions of employment of
its full-time and regular part-time employees.
Within the last six months, and thereafter, the
above-named Employer, by the above and other
acts, interfered with, restrained, and coerced its
employees in the exercise of their rights as guar-
anteed by Section 7 of the Act.
The complaint that issued alleged a number of spe-
cific 8(a)(1) violations by the Respondent, including
the creation of the impression that employees’ union
activities were under surveillance, threatening to with-
hold a wage increase and to reduce employee amen-
ities if the Union won an upcoming representation
election, and granting a wage increase after the elec-
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The preprinted language states ‘‘[b]y the above and other acts,
the above-named employer has interfered with, restrained, and co-
erced employees in the exercise of the rights guaranteed in Section
7 of the Act.’’
4 In Nickles Bakery the Board reversed precedent and held that it
will no longer rely on the boilerplate ‘‘other acts’’ language
preprinted on unfair labor practice charge forms as procedurally suf-
ficient support for particularized 8(a)(1) complaint allegations. In-
stead, there must be a showing of factual relatedness between the
charge allegations and the 8(a)(1) allegations in the complaint. To
determine whether such a showing has been made the Board stated
that it would apply the ‘‘closely related’’ test set forth in Redd-I,
Inc., 290 NLRB 1115 (1988), which requires: (1) that the charge and
the complaint allegations involve the same legal theory; (2) that they
arise from the same factual circumstances and (3) that the respond-
ent would raise the same or similar defenses to the allegations in the
charge and in the complaint. Applying these principles to the instant
case the judge found that each prong of the Redd-I test was fulfilled
and that the charge was adequate to support the complaint.
5 Thus, we disagree with the fundamental basis of our colleague’s
dissent.
6 In Brookville the charge alleged a violation of Sec. 8(a)(1), but
the section of the charge entitled ‘‘Basis of the Charge’’ was left
blank by the charging party. The complaint alleged that the respond-
ent violated Sec. 8(a)(1) by discharging and refusing to reinstate two
employees because they refused to abandon an economic strike.
7 360 U.S. 301 (1959).
8 309 U.S. 350 (1940)
tion. The complaint did not allege any violation of
Section 8(a)(3).
Identification of the issue presented in this case is
of critical importance to its resolution. The issue here
is whether a charge which alleges a violation of Sec-
tion 8(a)(1) of the Act, using general statutory lan-
guage, is legally sufficient to support a complaint al-
leging particularized violations of Section 8(a)(1). The
issue here is not whether the preprinted language at the
bottom of the charge form can support a complaint.3
The Board’s decision in Nickles Bakery answers that
question in the negative.4 However, that case did not
address the issue in the instant case.5
The starting point for our analysis must be the Act.
Section 10(a) provides that ‘‘[t]he Board is empow-
ered, as hereinafter provided, to prevent any person
from engaging in any unfair labor practice (listed in
section 8) affecting commerce.’’ Section 10(b) pro-
vides that ‘‘[w]henever it is charged that any person
has engaged in or is engaging in any such unfair labor
practice, the Board, or any agent or agency designated
by the Board for such purposes, shall have power to
issue and cause to be served upon such person a com-
plaint stating the charges in that respect . . . .’’
Section 10(b) thus mandates only that a charge be
filed before a complaint issues. Congress chose to pre-
vent the Board from initiating complaints on its own
motion. NLRB v. Kohler Co., 220 F.2d 3 (7th Cir.
1955); Consumers Power Co. v. NLRB, 113 F.2d 38
(6th Cir. 1940). Section 10(b) does not require that the
charge be specific nor that the charge and the subse-
quent complaint be identical. As the Supreme Court
stated almost 50 years ago, ‘‘[t]he charge is not proof.
It merely sets in motion the machinery of an inquiry.
When a Board complaint issues, the question is only
the truth of its accusations. The charge does not even
serve the purpose of a pleading.’’ NLRB v. Indiana &
Michigan Electric Co., 318 U.S. 9, 18 (1943).
Based on these principles, the Board has long held
that a charge alleging a violation of Section 8(a)(1) in
general terms is sufficient to support a complaint alleg-
ing a particularized violation of Section 8(a)(1).
Brookville Glove Co., 116 NLRB 1282 (1956).6 See
also Columbia University, 250 NLRB 1220 fn. 2
(1980).
We find instructive the Supreme Court’s decision in
NLRB v. Fant Milling Co.7 The charge in that case al-
leged a general 8(a)(5) violation, i.e., it recited the
broad language of that provision’s statutory language.
As relevant, the complaint that issued alleged, inter
alia, particularized 8(a)(5) conduct, i.e., granting a uni-
lateral wage increase some 4 months after the charge
was filed. The Court held that the charge was suffi-
cient to support the complaint, noting that:
A charge filed with the Labor Board is not to
be measured by the standards applicable to a
pleading in a private lawsuit. Its purpose is mere-
ly to set in motion the machinery of an inquiry.
. . . The responsibility of making that inquiry,
and of framing the issues in the case is one that
Congress has imposed upon the Board, not the
charging party. To confine the Board in its in-
quiry and in framing the complaint to the specific
matters alleged in the charge would reduce the
statutory machinery to a vehicle for the vindica-
tion of private rights. This would be alien to the
basic purpose of the Act. The Board was created
not to adjudicate private controversies but to ad-
vance the public interest in eliminating obstruc-
tions to interstate commerce . . . .
Once its jurisdiction is invoked the Board must
be left free to make full inquiry under its broad
investigatory power in order to properly discharge
the duty of protecting public rights which Con-
gress had imposed upon it. There can be no jus-
tification for confining such an inquiry to the pre-
cise particularizations of a charge. [360 U.S. 307–
308. Citations omitted.]
The Court also noted that in National Licorice Co. v.
NLRB8 it had held that the Act did not preclude the
Board from finding unfair labor practices alleged in a
complaint, even if they were not specified in a charge,
so long as the complaint allegations are ‘‘related to
those alleged in the charge and which grow out of
them while the proceeding is pending before the
Board.’’ Notwithstanding the general language of the
charge, the Court in Fant Milling concluded that the
1315EMBASSY SUITES RESORT
9 Fant Milling, supra at 307 and 309, quoting National Licorice
Co. v. NLRB. Accord: Kansas Milling Co. v. NLRB, 185 F.2d 413,
415 (10th Cir. 1950). (‘‘A charge in the general language of the stat-
ute is sufficient if it challenges the attention of the Board and leads
to an inquiry under the provision of the Act.’’)
10 See Cromwell Printery Inc., 172 NLRB 1817, 1821–1822
(1968).
11 Contrary to the suggestion of the dissent, we would not coun-
tenance a charge in which the charging party says that he has no
knowledge of any unlawful acts by a respondent but wants the Gen-
eral Counsel to investigate to see if, perhaps, the respondent may
have committed such an act. In the instant case, the Charging Party
affirmatively alleges that the Respondent committed 8(a)(1) viola-
tions.
Similarly, contrary to the suggestion of the dissent, we do not give
the General Counsel ‘‘carte blanche’’ to expand or ignore the
charge. If, for example, the charge alleges an 8(a)(5) unilateral
change, this would not give the General Counsel ‘‘carte blanche’’
authority to allege an unrelated independent 8(a)(1) violation. In the
instant case, the charge alleges 8(a)(1) violations and the complaint
alleges 8(a)(1) violations.
unilateral wage increase allegation of the complaint,
being ‘‘of the same class of violations as those set up
in the charge,’’ was sufficiently related to the charge
and was properly considered by the Board.9
Based on the above, we find that the generalized
statutory language used in the charge filed in this case
was sufficient to initiate an investigation of unfair
labor practices by the General Counsel, and that the
charge is legally sufficient to support the 8(a)(1) com-
plaint allegations regarding the Respondent’s threats to
withhold wage increases. The charge broadly alleged
8(a)(1) violations. The complaint specifically alleged
8(a)(1) violations. Thus, the complaint allegations were
‘‘of the same class of violations as those set forth in
the charge.’’
We find our dissenting colleague’s basis for distin-
guishing Fant Milling unfounded and unpersuasive.
The charge in that case was not specific. Rather, it al-
leged the broad statutory language of Section 8(a)(5).
The charge was sufficient to support a complaint alle-
gation of a specific type of 8(a)(5) violation, viz a uni-
lateral change. In our view, if a broad 8(a)(5) charge
can support a specific 8(a)(5) complaint allegation,
then a broad 8(a)(1) charge can support a specific
8(a)(1) complaint allegation.
We recognize that the sole difference between this
case and Nickles Bakery is that, in this case, the broad
language has been typed by the Union in the body of
the charge form in addition to having been preprinted
by the Board on the bottom of it. However, the distinc-
tion is a significant one. Where, as here, the charging
party types in the broad language, that party is asking
the Agency to conduct a broad investigation of 8(a)(1)
allegations. Hence, when the Agency does so, it is not
acting sua sponte. However, where the charging party
does not type in that language, that party is not seek-
ing a broad inquiry. The only basis for a broad inquiry
is the preprinted language on the form. But that lan-
guage is the Agency’s language, not the charging par-
ty’s language. Hence, if the Agency conducted a broad
inquiry, it would be acting sua sponte. As discussed
supra, the Agency is not permitted to act sua sponte.
We further recognize that our finding herein does
not squarely comport with the requirement of Section
102.12(d) of the Board’s Rules and Regulations that
the charge shall contain ‘‘[a] clear and concise state-
ment of the facts constituting the alleged unfair labor
practices affecting commerce’’ nor with the charge
form itself which provides with respect to the basis of
the charge that the charging party ‘‘be specific as to
facts, names, addresses, plants involved, dates, places,
etc.’’ These requirements, however, are merely ‘‘‘for
the information of the Board’ to aid it in conducting
its investigation,’’10 and cannot serve to engraft onto
the Act procedural hurdles that the Act does not con-
template or require.11
Accordingly, we deny the Respondent’s motion to
dismiss the complaint.
2. The judge overruled the Union’s Objections IV
and X and found that the Respondent’s creation of a
‘‘Kokua Council,’’ subsequently renamed ‘‘Employee
Council,’’ during the critical period of the election pro-
ceeding did not constitute objectionable conduct. The
Union excepts, contending that the Council was im-
properly established as a vehicle for, among other
things, soliciting employee grievances and promising
benefits or improvements, thereby interfering with the
employees’ right freely to choose their bargaining rep-
resentative. We find merit in this exception.
During the week of December 5, 1988, in prepara-
tion for the partial opening of its new luxury resort
hotel on the island of Maui, Hawaii, the Respondent
conducted a series of orientation meetings with groups
of newly hired employees. A prominent feature of
these meetings was the Respondent’s distribution of a
draft employee handbook which generally set forth the
proposed ‘‘policies, benefits, and standards of con-
duct’’ for the hotel. At issue here is the ‘‘problem
solving’’ provision of the handbook draft which reads,
in its entirety, as follows:
PROBLEM SOLVING
When people work together, sometimes problems
and misunderstandings can arise. To help solve
any problems we may encounter, we encourage
open communication. We will protect your rights
to discuss any job problems without fear of re-
prisals. Problems relating to our personnel policies
and procedures can and should be settled as soon
as they arise.
Steps for Solving Our Problems:
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 All dates are in 1989 unless otherwise indicated.
13 The ‘‘Problem Solving’’ section of the handbook’s final edition
was virtually unchanged from the draft version. However, contrary
to initial indications that employees would elect members to the
Council, the Respondent announced in its April 19 memorandum the
appointment of a 15-member Council, four of whom were manage-
ment personnel.
14 Reliance Electric Co., 191 NLRB 44, 46 (1971).
15 The General Counsel did not allege the establishment or exist-
ence of the Kokua Council as a violation of the Act, and we thus
do not reach that issue. Nor do we decide whether, absent timing,
the establishment or existence of the Kokua Council would con-
stitute objectionable conduct.
Step 1: Bring the problem to the attention of your
immediate supervisor. Your supervisor will listen
to the problem and make every effort to solve it.
If you are not satisfied with the result within three
days, you should go to Step 2.
Step 2: Discuss the problem with your Depart-
ment Head. If the problem cannot be resolved
with this step, you should go to Step 3.
Step 3: Our Council of Kokua: We have a group
of respected leaders to whom unsolved problems
should be presented. If they can’t resolve it, go to
Step 4.
Step 4: The General Manager will review any
matters not satisfactorily resolved by the Council.
If you feel you are experiencing any form of dis-
crimination or retaliation for raising an issue or
problem, please express your concern to your su-
pervisor or, if you feel more comfortable, please
talk it over with the General Manager.
We encourage you to share with our staff any
problems and concerns so that we may help you
solve them. Furthermore, this problem-solving
procedure has been established so that it can be
used freely and without fear of punishment of any
kind.
Attached to each copy of the handbook draft was a
memorandum requesting the employees to ‘‘help in re-
viewing and improving’’ the handbook and to notify
their supervisor if they had ‘‘anything to contribute.’’
According to the memorandum ‘‘[t]his will enable us
to complete the new Handbook by the first week of
January,’’ but pending issuance of the final handbook,
the draft ‘‘guidelines are currently in effect and each
and everyone of us is expected to comply, even during
this review period.’’
The handbook, however, was not finalized until 2
days before the election on April 19, 1989,12 when it
was distributed to all employees at a mandatory em-
ployee meeting. At this time the Respondent also dis-
tributed a memorandum entitled ‘‘The Employee
Council.’’13 The memorandum listed the following
seven ‘‘responsibilities of the Council’’:
1. Representation: On Page 28 of our employee
handbook, the Council serves as a center for em-
ployee appeals and in solving problems.
2. Communications: The Council will publish a
monthly hotel newsletter.
3. The Council will plan all employee and family
functions.
4. The Council will review new ideas submitted
by our employees and submit recommendations
to specific department heads and managers.
5. The Council will submit recommendations and
suggestions for improvement to the General Man-
ager.
6. The General Manager has the option of pre-
senting any hotel policy or procedures changes
to the Council, to get initial feedback and subse-
quent input.
7. The Council is dedicated to improving the
human relationships in this hotel:
Employee to Employee
Manager to Manager
Employee to Manager
The judge found that the Kokua Council was ‘‘com-
pletely an instance of start-up management preroga-
tives’’ and was not an objectionable vehicle for solicit-
ing employee grievances. We disagree.
It is well established that when an employer, as
here, institutes a new practice of soliciting employee
grievances during a union organizational campaign,
‘‘there is a compelling inference that he is implicitly
promising to correct those inequities he discovers as a
result of his inquiries and likewise urging on his em-
ployees that the combined program of inquiry and cor-
rection will make union representation unnecessary.’’14
The evidence shows that, by the device of the Kokua
Council, the Respondent sought to solicit and remedy
employee grievances. This was made explicit by the
statements in the April 19 memorandum that the Coun-
cil ‘‘serves as a center for employee appeals and in
solving problems,’’ that the Council ‘‘will review new
ideas submitted by our employees and submit rec-
ommendations to specific department heads and man-
agers,’’ and that the Council ‘‘will submit rec-
ommendations and suggestions for improvement to the
General Manager.’’
In view of the foregoing circumstances, including
the timing of the Respondent’s conduct during the crit-
ical period of the election proceeding, we find that the
Respondent interfered with the employees’ Section 7
right freely to choose their bargaining representative.
Stride Rite Corp., 228 NLRB 224 (1977).15 In light of
this finding, and our adoption of the judge’s rec-
ommendation to sustain the Union’s Objection 1, we
1317EMBASSY SUITES RESORT
16 Accordingly, we find it unnecessary to pass on the judge’s rec-
ommendation to sustain the Union’s Objection III.
In the absence of exceptions, we adopt, pro forma, the judge’s rec-
ommendation to overrule the Union’s Objection II.
conclude that the Respondent’s conduct warrants set-
ting aside the election.16
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Lotus Suites, Inc., d/b/a
Embassy Suites Resort, Maui, Hawaii, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
IT IS FURTHER ORDERED that the election in Case
37–RC–2964 is set aside and the case is remanded to
the Regional Director for Region 20 to conduct a new
election when he deems the circumstances permit the
free choice of a bargaining representative, as directed
below.
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN STEPHENS, dissenting in part.
I agree with my colleagues that the Respondent has
engaged in objectionable conduct sufficient to direct a
new election. However, contrary to my colleagues, I
would grant the Respondent’s motion to dismiss the
complaint, concluding that, consistent with Nickles
Bakery of Indiana, 296 NLRB 927 (1989), it is barred
by Section 10(b) because it derives absolutely no fac-
tual support from the unfair labor practice charge filed
by the Union. The majority’s view of this issue—per-
mitting literally any 8(a)(1) complaint allegation to
arise from boilerplate ‘‘other acts’’ charge language—
conflicts with Board law, Supreme Court precedent,
and this Agency’s institutional practice.
I have attached to this opinion the unfair labor prac-
tice charge at issue. Reviewing the large boxed area in
the center of the charge form, headed ‘‘Basis of the
Charge,’’ I note preliminarily that the allegations of
the first typewritten paragraph, asserting unlawful dis-
crimination under Section 8(a)(3), did not result in any
8(a)(3) allegation in the complaint, and there is no in-
dication of a connection between that charge of dis-
crimination and the alleged unfair labor practices
which ultimately appeared in the complaint. It is the
second typewritten paragraph which is the focus of my
attention and that of my colleagues. It states:
Within the last six months, and thereafter, the
above-named Employer, by the above and other
acts, interfered with, restrained, and coerced its
employees in the exercise of their rights as guar-
anteed by Section 7 of the Act.
This paragraph is virtually a repetition of the
boilerplate ‘‘other acts’’ language preprinted at the bot-
tom of this section of the charge form, and it does not
allege any facts. From this typewritten paragraph, con-
sisting of no more than boilerplate legal conclusions
describing an 8(a)(1) violation, the General Counsel
generated six distinct, factually specific complaint alle-
gations that the Respondent violated Section 8(a)(1).
At the beginning of the ‘‘Basis of the Charge’’ sec-
tion, the charging party is instructed, in preprinted par-
enthetical language, to ‘‘be specific as to facts . . .
etc.’’ This factual-specificity requirement is also set
forth in the Board’s Rules and Regulations, Section
102.12(d), stating that the charge shall contain a ‘‘clear
and concise statement of the facts constituting the al-
leged unfair labor practices,’’ and in the General
Counsel’s NLRB Casehandling Manual (Part One) Un-
fair Labor Practice, section 10020.1, which states that
‘‘the facts alleged in a charge to constitute the unfair
labor practices should be set forth with some specific-
ity but should not contain detailed evidentiary matter.’’
I am not contending here that these statements in the
charge form itself, in the Rules and Regulations, and
in the Casehandling Manual establish a legally binding
requirement of factual specificity in the charge. I will
address the law below. I merely point out that these
statements reflect that, as a matter of institutional wis-
dom and experience, this Agency routinely requires at
least some factual specificity in an unfair labor practice
charge. This sensibly reflects the policy of Section
10(b), which effectively bars the General Counsel’s of-
fice from initiating unfair labor practice proceedings
on its own.
The applicable law with respect to the validity of the
complaint in this case under Section 10(b) is Nickles
Bakery of Indiana, supra. In Nickles, the Board, adopt-
ing the view of the D.C. Circuit in G. W. Galloway
Co. v. NLRB, 856 F.2d 275 (D.C. Cir. 1988), overruled
prior case law which permitted the General Counsel to
draw factually specific complaint allegations solely
from the preprinted ‘‘other acts’’ language of the
charge. In doing so, the Board established that the
‘‘closely-related’’ test of Redd-I, Inc., 290 NLRB 1115
(1988), would be applied to determine whether com-
plaints alleging 8(a)(1) violations are sufficiently sup-
ported by the factual content of the unfair labor prac-
tice charge. The essential theory of Nickles is that
under Section 10(b), the Agency cannot institute unfair
labor practice proceedings on its own; therefore there
must be some factual nexus between the charge’s alle-
gations and the 8(a)(1) complaint allegations for the
complaint to be valid. A fortiori, when the charge con-
tains no factual allegations at all, as in the instant case,
there can be no nexus and a complaint cannot properly
issue.
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
My colleagues attempt to avoid confronting the case
law by pointing out that in Nickles the ‘‘other acts’’
language was preprinted, although here the Charging
Party has typed it on the charge form. Thus, they rea-
son that although the General Counsel may not con-
duct a broad unfair labor practice investigation sua
sponte, i.e., based on preprinted boilerplate charge lan-
guage, a charging party, by consciously intoning the
same boilerplate language, may legitimately give the
General Counsel the carte blanche that the statute itself
withholds. This is unconvincing. We would surely not
find that the General Counsel had warrant for an inves-
tigation in a charge stating that the charging party had
no knowledge of anything in particular done by the
employer but wanted the General Counsel to inves-
tigate to see if any coercive act within the last 6
months might be turned up. I cannot see that the
charge filed here is, in principle, different. In the ab-
sence of any factual connection between the complaint
allegations and the charge, my colleagues’ conclusion
that the charge supports the complaint in this case ap-
pears to me effectively to overrule both Nickles and
Redd-I.
NLRB v. Fant Milling Co., 360 U.S. 301 (1959), on
which my colleagues primarily rely, is distinguishable.
First, the issue decided by the Court was whether,
under Section 10(b), allegedly unlawful conduct occur-
ring after the alleged misconduct described in the
charge may be included in the complaint allegations.
The Court did not address—by implication, dicta, or
otherwise—the issue posed in this case: whether a
charge consisting of boilerplate 8(a)(1) legal conclu-
sions and no factual allegations provides any lawful
basis under Section 10(b) for the particularized 8(a)(1)
allegations in the complaint. Second, the matters be-
fore the Court involved Section 8(a)(5). Allegations
implicating the refusal-to-bargain concepts of Section
8(a)((5) are inherently narrower in their factual scope
than potential violations of Section 8(a)(1). In other
words, the boilerplate 8(a)(1) legal conclusions set
forth in this charge implicate every conceivable unfair
labor practice an employer may commit under Section
8 of the Act. Nothing asserted in a charge could be
more broad, uninformative, and all-enveloping than
this.
Finally, far from providing a basis for my colleagues
to overrule Nickles, Fant Milling is in fact consistent
with what was decided in that case, see 296 NLRB at
927. The Court’s references to ‘‘the specific matters
alleged in the charge’’ and ‘‘precise particularizations
of a charge,’’ 360 U.S. at 307–308, reflect an acknowl-
edgement of the need for some factual specificity in
the charge. It is this requirement of specificity that the
majority here rejects in favor of universal, ‘‘one-size-
fits-all’’ charge allegations.
The Supreme Court in Fant Milling warned against
allowing the General Counsel ‘‘carte blanche’’ to ex-
pand or ignore altogether the unfair labor practice
charge in issuing complaint. 360 U.S. 309. My col-
leagues, however, would permit the General Counsel
precisely such an unrestrained exercise of authority.
Because, for the reasons stated above, I find the major-
ity’s view inconsistent with the limits placed by Sec-
tion 10(b) on the General Counsel’s authority to origi-
nate an unfair labor practice case, I respectfully dis-
sent.
Lewis S. Harris, Esq., for the General Counsel.
Jared H. Jossem, Esq. (Torkildson, Katz, Jossem Fonseca,
Jaffe & Moore), of Honolulu, Hawaii, for the Respondent.
Danny J. Vasconcellos, Esq. (Herbert R. Takahashi), of Hon-
olulu, Hawaii, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
consolidated case was heard at Kahului, Maui, Hawaii, and
Honolulu, Oahu, Hawaii, over a course of 4 trial days com-
prising March 29–31, 1990, inclusive, and April 2, 1990. The
charge in Case 37–CA–2742 was filed August 11, 1989, by
ILWU Local 142, AFL–CIO (the Charging Party or Local
142). Pursuant to this charge a complaint was issued Septem-
ber 29, 1989, concurrent with an order consolidating cases
which embodied a request that the associated representation
proceeding, Case 37–RC–2964, be referred to the Board for
ultimate disposition. The primary issues in the complaint
case are whether Lotus Suites, Inc., d/b/a Embassy Suites
Resort (the Respondent), unlawfully (a) implied that the
Charging Party was preventing Respondent from granting a
pay raise, (b) created an impression, and implied, that union
activities of its employees were under surveillance, (c) threat-
ened to reduce employee amenities if Local 142 were to win
a representation election, (d) impliedly promised a pay raise
contingent on the election, and (e) instituted a postelection
wage increase and bonus in order to discourage support for
Local 142, in violation of Section 8(a)(1) of the National
Labor Relations Act.
In the representation case a petition was filed December
6, 1988, by Local 142 (in this regard the Petitioner or the
Union). It also involved Lotus Suites, Inc., d/b/a Embassy
Suites Resort (in this regard the Employer). Pursuant to this
petition, and a Decision and Direction of Election issued
March 22, 1989, a secret-ballot election was conducted on
April 21, 1989. Of approximately 336 eligible employee vot-
ers, 61 votes were cast for Petitioner and 154 were cast
against. The 11 challenged ballots resulting from this election
were not sufficient in number to affect its results. Petitioner
then filed 11 timely objections, each one separately headed
and identified by serial Roman numerals. However, on May
26, 1989, Petitioner withdrew its Objections VI, VII, VIII,
IX, and XI. Following investigation the Regional Director
issued a Supplemental Decision on May 30, 1989, in which
he deemed that substantial and material issues of fact existed
concerning objections not withdrawn, and those remaining
1319EMBASSY SUITES RESORT
1 Siting was done along the extensive curve of world renown vaca-
tion beach at which several other major destination resorts, and other
establishments have long existed. The Employer’s formal address
was 104 Kaanapali Shores Place, Lahaina, Maui, Hawaii.
could best be resolved through a hearing. These remaining
unwithdrawn objections comprised the following:
I.
UNLAWFUL THREATS AND INTERFERENCE
Commencing December 6, 1988 and thereafter,
Lotus Suites, Inc. d/b/a Embassy Suites Resort (herein-
after ‘‘HOTEL,’’ ‘‘EMPLOYER,’’ or ‘‘EMBASSY
SUITES’’), by and through its employees, representa-
tives, and agents unlawfully threatened, coerced, and
interfered with the rights of employees under Section 7
of the Act by threatening loss or reduction of wages,
hours of work, and other conditions of employment, if
they voted for the union or if the union won representa-
tional rights.
II.
UNLAWFUL PROMISE OF WAGES, BENEFITS, AND
IMPROVED WORKING CONDITIONS AND
IMPROPER WITHHOLDING OF SAME
Commencing December 6, 1988 and thereafter, the
Employer, by and through its employees, representa-
tives, and agents unlawfully promised improvements or
increases in wages, hours of work, and other conditions
of employment, if they voted against [as corrected] the
union or if the union lost [as corrected] representational
rights. The employer also unlawfully and improperly
withheld such improvements and increases (after prom-
ising them) in order to interfer with the rights of em-
ployees under the Act.
III.
UNLAWFUL AND UNTIMELY GRANTS OR
IMPROVEMENTS IN WAGES, BENEFITS, HOURS OF
WORK AND OTHER CONDITIONS OF
EMPLOYMENT
Commencing December 6, 1988 and thereafter, the
employer, by and through its representatives, employees
and agents, unlawfully granted increases and improve-
ments in wages, benefits, hours of work and other con-
ditions of employment during the ‘‘critical period’’
prior to the election to improperly affect the outcome
of the election and thereby interfered with the rights of
employees under section 7 of the Act.
IV.
UNLAWFUL APPOINTMENT OF KOKUA COUNCIL,
AND PROMISES OF IMPROVEMENTS AND
BENEFITS
Commencing on December 6, 1988 and thereafter,
the Employer by and through its representatives, em-
ployees, and agents established a Kokua Council, ap-
pointed certain persons as members, and unlawfully
promised improvements to employees if they would act
through the employer designated representatives instead
of voting for the union or having a union serve in a
representational capacity. The employer offered ap-
pointments to certain members to win then [sic] over
from the union and offered them various inducements
and special dispensations for serving in the Kokua
Council.
V.
UNLAWFUL INTERROGATION, SURVEILLANCE
AND IMPRESSION OF SURVEILLANCE
Commencing on December 6, 1988 and thereafter,
the Employer, acting by and through its representatives,
employees, and agents, questioned employees regarding
their union sentiment, about their inclination to vote for
or against the union and about union meetings, inquired
about attendance by various employees at union meet-
ings, announced that union meetings were cancelled
when they were not, improperly interefered [sic] with
holding of union meetings, carried other survillance
[sic] on members of the union, supporters of the union,
sympathizers, and others who associated with well
known union supporters or those who attended union
meetings, activities, and functions, and gave the impres-
sion of surveillance of union activities, and supporters.
Said conduct (and other related practices of the em-
ployer) violated Section 7 rights of employees under
the Act.
X.
UNLAWFUL SOLICITATION OF GRIEVANCES
Commencing on December 6, 1988 and thereafter,
the employer by and through its agents, employees and
representatives, improperly and unlawfully solicited
grievances and complaints from employees, thereby
intefering with their rights under Section 7 of the Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of a posthearing
letter filed by General Counsel, the Petitioner’s memoran-
dum, and the Employer’s brief, I reach the recommendations
set forth immediately following, and make the findings of
fact and conclusions of law contained in a latter portion of
this decision.
THE REPRESENTATION CASE
I. SETTING
In late 1988 construction was nearing completion on a new
luxury resort hotel located at Ka’anapali Beach. This area is
situated on the western side of the Island (and county) of
Maui, Hawaii.1 The owner was then Haseko Hawaii Partners
(HHP), of which Charles Sweeney was general partner. HHP
was the franchisee of a mainland corporation named Em-
bassy Suites, Inc. Under this licensing agreement HHP was
permitted to use the trade name ‘‘Embassy Suites Resort’’
for the hotel it was constructing. An individual named Mark
Szafranski was general manager for the project.
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 DeFries testified that initial ‘‘employment of the staff . . . oc-
curred on December 5th.’’
At that point in time an entity named Lotus Suites, Inc.
also existed, of which Sweeney was founder, president, and
chief executive officer. John DeFries occupied a position as
assistant to the president of Lotus Suites, Inc. with a respon-
sibility to assist General Manager Szafranski in opening the
resort.
After the hotel opened Szafranski gravitated into mainland
basing at San Mateo, California, having added responsibility
there for Sweeney’s various enterprises coupled with periodic
visits to Hawaii as a regional manager. DeFries continued in
employment with Lotus Suites, Inc., and was its vice presi-
dent at the time of hearing.
The business arrangements of final construction,
preopening, ‘‘soft’’ opening on December 15, 1988, and ini-
tial months of operation were such that Lotus Suites, Inc.
was the management company of record. Around March 1,
1989, the entire property was sold by HHP to Abe Inter-
national Adventures Corporation of Tokyo, Japan. Lotus
Suites continued to manage the operation for the new owner.
The Embassy Suites Resort trade name was unaffected by the
sale.
In contemplation of having a typical resort hotel work
force, the Employer undertook preliminary planning activi-
ties, which included training of proposed management per-
sonnel in certain themes for extending service to guests.
These themes drew on a widely believed nature of the Ha-
waiian host culture. They translated into a specific objective
for employee standards of service. Respondent’s assembling
management cadre codified this objective in early November
1988 by a one-page statement entitled ‘‘Our Mission.’’ Em-
ployees were to display distinctively Hawaiian qualities of
Ohana, Aloha, and Lokahi. Ohana meant family, Aloha de-
noted multiple factors of greeting, love, welcome, and fare-
well, while Lokahi signified balance and integration. The
qualities so expressed were rooted in Hawaiian dialect of
words taken from the Polynesian language. Additionally, es-
teemed spiritual advisors were engaged to best inculcate the
full extent, and subtle intricacies, of the total objective. The
mission statement had been ‘‘co-authored’’ during a manage-
ment retreat conference on the Big Island of Hawaii during
the first week of November 1988. Of the total in attendance,
22 people were in training at that time to be actual managers
at the resort.
This activity generally coincided with the start of a vigor-
ous recruitment program on the Island of Maui for the com-
prehensive staff to be needed in a resort hotel operation. The
undertaking kicked off with a local job fair on October 15,
1988, as prominently advertised in the community news-
paper. This public notice added that thereafter applications
would continue to be available at the state employment office
on Maui beginning October 17, 1988. Interested persons
were encouraged to schedule interview appointments prompt-
ly after their applications were completed. Many individuals
responded by submitting job applications. Offers of rank-and-
file employment began to flow out a few weeks later.2
Those persons eventually hired in early December 1988
and subsequently were promptly trained in the mission state-
ment; the format of this activity being intensive orientation
of widely gathered employees over December 5, 6, and 7,
1988, followed by small group meetings conducted predomi-
nantly by DeFries thereafter for about 2-1/2 months. The ex-
tent and sequencing of this small group training was planned
and timed to conclude just as the resort would have its grand
opening in early March 1989.
By October 1988 construction progress, recruitment notori-
ety, and general anticipation in the vicinity were such that
two labor organizations commenced activity toward their re-
spective agendas of winning representational rights. These
twin intentions targeted a typical bargaining unit of all full-
time and regular part-time employees except customary ex-
clusions for the industry, as such would predictably material-
ize through employment of necessary overall staff. Thus,
spirited competition in this regard arose between Hotel Em-
ployees & Restaurant Employees Local 5, AFL–CIO, and the
Union (Local 142), as they each vied for desired status as
an exclusive collective-bargaining representative. Both labor
organizations fielded a diverse staff of organizers, publicists,
and Honolulu based supporting personnel to assist in the
process. The Union buttressed its approach as early as Au-
gust 1988 by engaging Rebecca (Becky) Covert as its part-
time employee, while she was working concurrently at the
Hyatt Waikoloa resort hotel on the Big Island. Covert soon
ended this employment, relocated to the Island of Maui, ap-
plied for employment at the Employer along with the large
number of job seekers, and was among the first ones hired.
She continued on Petitioner’s payroll and characterized her
responsibilities in this regard, but while on the Employer’s
premises during her work shift, as being ‘‘available to an-
swer any questions that I might hear from my co-employ-
ees.’’
This competition between labor organizations had focused
on organizing activities during the Employer’s principal re-
cruitment phase of mid-October to early December 1988.
Specific tactics by the competing unions included distribution
of literature, applicant contacts, employer-approved formal
presentations to an assembly of newly hired people, and the
filing of representation petitions separated in time by only 1
day. Local 5 ultimately withdrew from the competition.
By late 1988 the hotel could and did function with some
limitation as to internal facilities, and with heavier than usual
seasonal rains affecting restaurant service on occasion. The
first guests were accepted in mid-December 1988 as the
preholiday startup of operations in the still incomplete estab-
lishment. A concurrent progression of facilities completion
followed during January and February 1989, closely associ-
ated to the training and increasing familiarity of an overall
guest service work force. The Union’s representation petition
was also in process during that time, while a lively network
of internal employee commentary existed as to eventual set-
tling out of wage rates, work scheduling and general condi-
tions of employment. On its business side the Employer
moved ahead with plans for an official and grand opening in
early March 1989. After this grand opening events during the
2-month period that followed comprise many of the operative
facts pertaining to this consolidated proceeding.
II. CASE CHRONOLOGY
October 1988—Availability of employment applica-
tions announced.
November 1988—Offers of employment made to
hourly employees.
1321EMBASSY SUITES RESORT
3 The Petitioner does not contend that complimentary dinner meals
served to employees in the Maui Rose restaurant on December 22
and 23, 1988, constituted objectionable conduct by the Employer.
4 All indicated dates that fall during October through December are
in 1988; those during January through September are in 1989.
December 5, 1988—Chief employee orientation
begun by managers.
December 5, 1988—Petition filed by Local 5.
December 6, 1988—Petition filed by Local 142.
December 6, 1988—Draft employee handbook dis-
tributed (Tr. 41).
December 7, 1988—Concluding date of chief em-
ployee orientation.
January 1989—Various payroll corrections and ad-
justments done.
March 1, 1989—Sale of property.
March 5, 1989—Grand opening of hotel.
March 22, 1989—Secret-ballot election directed.
April 11, 1989—Employer’s letter to employees re-
garding pay.
April 18, 1989—Union election bulletin distributed.
April 18, 1989—Final employee handbook distribu-
tion begun.
April 19, 1989—Employer’s preelection meetings
with employees.
April 21, 1989—Secret-ballot election conducted.
May 3, 1989—Pay raise granted (effective May 16),
plus bonus.
III. ULTIMATE OBJECTIONS
A. Evolution of Ultimate Objections
During the course of hearing, such objections remaining
after 5 of the original 11 were withdrawn underwent further
narrowing. This process took the form of express withdrawal
of content in one case, and in other cases took the form of
limiting, clarifying or explaining language contained in var-
ious objections. (Tr. 300–306, 692, 698, 704, and 709–711.)
B. Precise Scope of Ultimate Objections
On completion of the process, and as constructively sum-
marized before concluding the hearing of Friday, March 30,
1990, the objections were understood to comprise the follow-
ing:
I. Commencing December 6, 1988 and thereafter,
Lotus Suites, Inc. d/b/a Embassy Suites Resort (herein-
after ‘‘HOTEL,’’ ‘‘EMPLOYER,’’ or ‘‘EMBASSY
SUITES’’), by and through its employees, representa-
tives, and agents unlawfully threatened, coerced, and
interfered with the rights of employees under Section 7
of the Act by threatening loss or reduction of wages,
hours of work, and other conditions of employment, if
they voted for the union or if the union won representa-
tional rights.
II. Commencing December 6, 1988 and thereafter,
the Employer, by and through its employees, represent-
atives, and agents unlawfully promised improvements
or increases in wages, hours of work, and other condi-
tions of employment, if they voted against the union or
if the union lost representational rights. The employer
also unlawfully and improperly withheld such improve-
ments and increases (after promising them) in order to
interfere with the rights of employees under the Act.
III. Commencing December 6, 1988 and thereafter,
the employer, by and through its representatives, em-
ployees and agents, unlawfully granted increases and
improvements in wages, benefits, hours of work and
other conditions of employment during the ‘‘critical pe-
riod’’ prior to the election to improperly affect the out-
come of the election and thereby interfered with the
rights of employees under Section 7 of the Act.[3]
IV. Commencing on December 6, 1988 and there-
after, the Employer by and through its representatives,
employees, and agents established a Kokua Council, ap-
pointed certain persons as members, and unlawfully
promised improvements to employees if they would act
through the employer designated representatives instead
of voting for the union or having a union serve in a
representational capacity. The employer offered ap-
pointments to certain members to win then [sic] over
from the union and offered them various inducements
and special dispensations for serving in the Kokua
Council.
V. Commencing on December 6, 1988 and there-
after, the Employer, acting by and through its represent-
atives, employees, and agents, questioned employees re-
garding their union sentiment, about their inclination to
vote for or against the union and about union meetings,
and gave the impression of surveillance of union activi-
ties, and supporters. Said conduct (and other related
practices of the employer) violated Section 7 rights of
employees under the Act.
X. Commencing on December 6, 1988 and there-
after, the employer by and through its agents, employ-
ees and representatives, improperly and unlawfully so-
licited grievances and complaints from employees,
thereby intefering with their rights under Section 7 of
the Act.
C. Evidence Associated to Each Remaining Objection
1. Introduction
From late 1988 onward the Employer consistently and ex-
pressly exhibited a desire to operate without rank-and-file
employees having union representation.4 This was cleverly
first intimated in the Maui newspaper advertisements stating
that applications for employment would be welcomed from
‘‘people who care and truly feel that they are being cared
for.’’
By letters dated November 8, Szafranski supplied
‘‘senior executives’’ of each competing union with a
‘‘position statement’’ on Embassy Suites Resort letter-
head. This document read:
As we join the Maui community, we recognize and
respect the historic role of unions in Hawaii and the
legal guarantee that employees have the right to vote,
by secret ballot, on whether they want union represen-
tation.
We have adopted the following policy to clarify our
position on unions.
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. We will open the hotel without granting recogni-
tion, secretly or openly, to any union.
2. We request all interested unions to give us and
our employees at least six (6) months to get started and
to get to know each other.
3. We will hire applicants based upon their merit,
ability, experience, training, and other job-related quali-
fications.
4. We believe that employees in the 1980’s and
1990’s deserve respect, dignity, and a competitive pack-
age of compensation and working conditions, whether
or not they have union representation.
The Company expects all supervisors and unions to
comply with the law in all respects and will oppose,
with all legal means available, any attempts to force,
threaten, frighten, or otherwise coerce employees into
joining or supporting a union or engaging in a strike or
refraining from such action. Furthermore, the Company
will insist on the protection of all employees’ rights
provided by law.
If anyone asks an employee to sign a card or paper
for a union, we believe they should not do so without
first hearing all positions.
Supervisors and other members of management are
prohibited from assisting or supporting unionzation [sic]
at our company.
The Employer distributed a subsequent memorandum
dated February 1 from management to employees on a sub-
ject it termed ‘‘understanding unionism.’’ This four-page
document opened with a stated purpose of informing em-
ployees ‘‘about our observations related to the on going [sic]
organizing efforts.’’ This communication also expressly re-
counted how the Employer had ‘‘invited both unions’’ to
speak to employees. The memorandum continued by pictur-
ing how this resulted in each union making its own presen-
tation at a midpoint in the chief employee orientation proc-
ess, during an 18-minute period that had been granted each
of them. In a final preelection distribution headed ‘‘DECI-
SION 89,’’ the Employer propagandized further. This docu-
ment lauded a ‘‘union-free’’ workplace, assured that the Em-
ployer would ‘‘deal fairly’’ with employees, and repeatedly
urged a vote against Petitioner in the imminent secret-ballot
election.
The draft employee handbook had been distributed under
a cover memorandum dated December 7 from Szafranski and
DeFries. Among its passages were one asking employees for
‘‘help in reviewing and improving’’ the handbook, and an in-
vitation to employees with ‘‘anything to contribute’’ that
they promptly notify supervision. The first approximately 30
pages of this proposed employee handbook generally covered
terms and conditions of employment. Specifically as to holi-
days, nine were listed as a ‘‘company-paid’’ benefit to those
qualified. Beyond typical major holidays, the list included
King Kamehameha Day and the employee’s birthday. The
concluding approximately 30 pages followed the heading
‘‘Problem Solving,’’ and began with a rudimentary four-step
procedure applicable to ‘‘problems.’’ After initial and once-
reviewed consideration, a step 3 ‘‘Council of Kokua (co-
operation),’’ made up of ‘‘respected leaders,’’ was available
for the presentation of ‘‘unsolved problems.’’ Absent resolu-
tion there a final step 4 element concluded this proposed pro-
cedure by tersely stating that the resort’s general manager
would review any matters not satisfactorily resolved by the
Kokua Council.
The concluding 30 pages also set forth a dress and groom-
ing code, plus additional topics including ‘‘house rules,’’ a
statement of management rights, treatment of the subject of
safety (under which heading a no-solicitation rule was writ-
ten), and over a page devoted to ‘‘A Word About Unions.’’
Here the earlier-released position statement on the subject
was paraphrased as to introductory language; then a more re-
proaching, underlined passage followed, before concluding
with a repeat of the position statement’s final three para-
graphs as adjusted only grammatically and by other slight re-
vision. The phraseology that exceeded language of the re-
leased position statement was:
We do not believe that it is necessary for our em-
ployees to pay dues or fees to outside union organizers
to receive wages and benefits comparable to what our
competitors pay to their employees. We do not believe
that outside union organizers can provide greater job
security because our jobs depend on how well we do
our work and how well we compete in our industry, not
on unions. We believe that we can solve our problems
by working together directly and not having to work
through an outside union organization that does not
work here with us. It is our policy that under no cir-
cumstances will our employees be forced by Hotel
management to join or pay dues to any third-
party/bargaining agent as a condition of employment.
Nor will we provide better or worse treatment to any-
one because of his support for a union.
When the employee handbook was distributed shortly be-
fore the election in its final form, it was much the same as
the draft. This distribution was principally done over the 3
days of April 18–20. A small number of employees were not
available during this timespan, resulting in distribution to
them the following week.
However a 10th holiday termed ‘‘employee floating holi-
day’’ was added, and the problem solving cooperative was
renamed ‘‘The Employee Council.’’ The house rules, infrac-
tion of which was associated to progressive discipline in both
versions, were extensively rearranged and revised. The stated
management rights and no-solicitation rule were repeated
identically, while the ‘‘Word About Unions’’ disappeared
from this final version.
DeFries testified that the 10th holiday was based on two
factors. The first was as asserted intention of the Employer
to be consistent with a floating holiday (as among 10 overall)
policy utilized by Landmark Suites, another, and earlier ex-
isting, mainland-based development entity of Sweeney. Sec-
ondly, the floating holiday eliminated an inconsistency found
between holiday subject treatment in the original draft em-
ployee handbook, and the terms of employment offer letters
made to prospective managers back before the resort opened.
As to mechanics of the change, DeFries testified that this
second factor in particular led to inquiries from employees
about the inconsistency. From this impetus, and occurring
around late February or early March, employees balloted
among the three additional holiday options of Good Friday,
May Day (May 1), or a floating holiday. The favored choice
was for a floating holiday. DeFries believed this result was
1323EMBASSY SUITES RESORT
5 An employment confirmation letter to Teske dated November 19
referred to an entitled ‘‘one floating holiday,’’ in addition to the
basic nine holidays incorporated by reference as the policy of Lotus
Suites.
6 During conversation with Teske the day before, Covert inadvert-
ently displayed a note she had made at an earlier time. This note-
taking followed discussion with a coworker about what that co-
worker had been asked relative to the Union. Covert had intended
only to display a similar-sized paper to Teske, on which her pre-
ferred days off were written.
7 Crider also recalled that on April 19, an unidentified person
passed by a group of about 20 employees gathered in a locker and
timecard area. She testified that this person said a pay raise would
follow only if the Union lost the imminent election.
made known to employees by managers soon following the
vote; the change to be effective in early May.
As 1989, began the resort’s food and beverage function
was managed by Executive Chef Steve Amaral, while the
main Maui Rose dining room was run by subordinate
Philippe Periou. Less formal eating and drinking facilities
also existed as the separate Ohana Grill and the Ohana Bar.
The beverage manager for the resort was Todd Teske, a self-
described equal to Periou on the supervisory plane.5 Roland
Rana Linmark was a month into employment as special
projects manager, while the hotel’s first director of house-
keeping was Carla Rogers, assisted in this function by Ja-
nette Paguyo. Linmark had 20 years’ experience in the Ha-
waii resort business, and the emphasis of his special projects
responsibility was to assure that satisfactory housekeeping
services would be provided. His deployment was also spe-
cifically influenced by possession of ‘‘bi-lingual skills,’’
termed in this record as ‘‘Filipino.’’ A technical hallmark of
operations was the existence of a yet separate entity named
Lotus Restaurants, Inc., which submanaged the food and bev-
erage department. Employees of this department were on a
payroll of this entity, in contrast with housekeeping where
employees were on the basic Lotus Suites, Inc. payroll.
2. As to Objection I
Covert testified that she was hired December 5 as a cock-
tail waitress, and variously assigned to both the Ohana Bar
and the Maui Rose Bar. She was supervised by Teske, and
paid an initial hourly rate of $4.50. Covert testified that on
either April 18 or 19, she had a conversation with Teske at
the premises without others being in earshot. According to
Covert, Teske first expressed his concern that she was get-
ting too ‘‘wrapped up in this union thing.’’6 When she
dodged making any particular reply to this, Teske assertedly
continued by saying that ‘‘things’’ would not get any better
if the Union were to prevail. He continued by quoting
Szafranski that no changes would be made to the hotel struc-
ture so as to provide an employee locker room or showers.
Finally, Covert recalled Teske saying he had seen a con-
fidential memo from Szafranski to DeFries stating that if the
Union lost the election there would be a 7-percent pay raise
for the rank-and-file; otherwise none. Teske concedes he
once saw a confidential memo on Szafranski’s desk, but can-
not remember its contents nor recall whether he discussed it
with Covert.
Florentina Crider was hired December 10, as a suite at-
tendant in the housekeeping department. She testified that on
April 7, at a loading dock where about 20 other employees
were also present, Linmark responded to questions by saying,
‘‘If you vote union, no raise’’ and that the Union was hold-
ing up a raise for employees. Linmark denied making a state-
ment of the quoted nature.7
3. As to Objection II
Crider also testified to being told by Rogers that her initial
hourly pay rate of $7.49 would be increased after 30 days.
This did not, however, materialize. The period of January
into April was one of increasing agitation regarding a pay
raise, fueled in large measure by the exchange of flyers be-
tween unions while Local 5 was still in the competition.
Employer did disseminate a memorandum to all employees
dated April 11. It read:
Several people have asked why the Company is not
granting wage increases now. We have asked our legal
counsel for advice on this, and we have been advised
that we are in a critical period under the rules of the
NLRB. Unless the specific amount of an increase was
previously announced—before the Union’s petition, or
was established by prior years’ practices, any adjust-
ment affecting large number of employees would be
considered a ‘‘bribe’’ to buy your vote. This, in turn,
would mean that the Union could demand a rerun elec-
tion if a majority votes ‘‘NO,’’ and we would have to
go through this all over again.
We are confident that a majority of our employees
will recognize that they will be better off overall with-
out a union. Once the election is over and the NLRB
rules allow us to act without fear of legal complica-
tions, our policy will be the same as it is now—to pay
competitive and fair wages and benefits.
We hope you now understand one more reason why
we are trying to convince the NLRB that union orga-
nizing should be deferred for several months when a
new business opens. The current ground rules are not
necessarily the best for the employees.
Hope you understand—be patient, don’t worry, be
happy!!!
4. As to Objection III
This objection is first supported by Covert’s comparison of
the employee handbook from its draft to final version. She
testified that in the revision process: (1) overtime pay after
8 hours’ work in a day was added, (2) vacation entitlement
was liberalized, (3) the 10th holiday was added, and (4) the
Employee Council was ‘‘solidified.’’
A second branch of this objection is the uncontradicted
fact that the Employer distributed a Christmas and New
Year’s bonus, plus the availability of a one-time complimen-
tary room weekend on an ‘‘as available’’ basis and only if
used by June 30 (extended into September).
Another objected-to grant is an ‘‘Employee of the Month’’
program in the housekeeping department. Written description
of this program, as made by Rogers in a memorandum dated
February 21, invited the placing of nominations in a sugges-
tion box. Three such awards were made in the months pre-
ceding the election. The individual chosen (by fellow em-
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees) for April was Crider. Her award was $50 cash and
a salad bowl.
The relative seniority standing of employees, and particu-
larly the many hired together on dates in early December,
was settled by a random ‘‘pulling’’ of numbers. This oc-
curred on April 19. However, Linmark was aware of a gen-
eral desire among employees to resolve this as far back as
January, and he repeatedly promised to ‘‘look into it’’ as the
months passed.
The subject composed itself when an undated notice issued
from Rogers, inferentially in point of time just before occur-
rence of an announced departmental meeting of house-
keeping and laundry employees. The notice advised such em-
ployees that a ‘‘very exciting meeting’’ had been scheduled
for April 19. The stated agenda for this meeting included a
‘‘departmental seniority draw.’’
The pulling was a two-part procedure when done. Employ-
ees first acquired a number as among all others hired on the
same date, and this number determined the order of drawing
again for actual departmental seniority standing. Once this
random result obtained, the seniority applied to both work
stations and choice of days off.
This objection also broadly and constructively contends
that hourly rate changes experienced by food and beverage
department employees early in their employment were im-
proper. Here Disher’s testimony is that she was increased in
her December pay rate of $4.60 per hour to approximately
$7.45 as an occurrence in January. According to Disher this
change was upsetting to employees and unexplained by man-
agement. An earlier temporary shortage was soon made up
by a check that ‘‘subsidize[d]’’ the difference. Thus the dis-
parity between her original rate, and the enhanced hourly
rate, was cured as with shorted pay. Then when January
ended Disher’s rate was again confusingly reduced to a basic
$4 level, with tips available to her as further remuneration
from employment. In Covert’s case, she testified that an ini-
tially understand hourly pay rate $4.50 was retroactively ad-
justed to $7.45. The December-January payroll happenings
are better exemplified by Covert’s testimony than by
Disher’s. Specifically, the adjusting payroll check to Covert
applies to the pay period ending January 15 and was in the
amount of $155.75 when disbursed on January 20.
When questioned about initial pay practices for food and
beverage department employees, DeFries testified that tipped
employees were ‘‘brought to a higher rate of pay tempo-
rarily’’ and only through January, because of delay in com-
pleting all hotel facilities and the adverse business effects of
inclement winter months weather. On the larger question of
promised pay raises, DeFries denied that any promise, or
even ‘‘reference’’ to a wage increase, had been made to em-
ployees to his knowledge.
The final discrete component of this objection relates to
resolution of a perceived expectation among employees of
having a 7-percent across-the-board wage increase. Here, the
Union relies preliminarily on testimony of Covert as outlined
in section III,C,2, above. In addition, Disher testified that
during an on-premises conversation with Periou on April 24,
he asked if she had voted for the ‘‘right person’’ as a pre-
requisite to imminent receipt of a 7-percent pay raise. Periou
is also implicated in certain testimony of Lecomte, who re-
called that he cast the matter as a ‘‘surprise’’ about to hap-
pen.
5. As to Objection IV
Covert testified that during orientation at the Lahaina
Civic Center in December, the Kokua Council was described
as a group to be elected by employees. What eventuated was
an appointed group, the composition and the functioning of
which was set forth in a memorandum to employees from
DeFries dated April 19. It read:
As Chairman of our Employee Council, I am pleased
to announce the employee members who will be serv-
ing on the Council, for the next six months. . . . These
fellow employees were invited to participate following
the employee meetings conducted by Chubby Mahoe,
Rana Linmark and myself.
[15 names omitted]
The responsibilities of the Council include:
1. Representation: On Page 28 of our employee
handbook, the Council serves as a center for employee
appeals and in solving problems.
2. Communications: The Council will publish a
monthly hotel newsletter.
3. The Council will plan all employee and family
functions.
4. The Council will review new ideas submitted by
our employees and submit recommendations to specific
department heads and managers.
5. The Council will submit recommendations and
suggestions for improvement to the General Manager.
6. The General Manager has the option of presenting
any hotel policy or procedures changes to the Council,
to get initial feedback and subsequent input.
7. The Council is dedicated to improving the human
relationships in this hotel:
Employee to Employee
Manager to Manager
Employee to Manager
In closing, let me say that I am honored to serve as
Chairman of Our Employee Council. Further, I appre-
ciate Mr. Sweeney’s consent which allows me to serve
as Chairman for a minimum of one year. The Council
will meet at least once every two weeks and all of our
employees will be kept fully informed of our progress.
6. As to Objection V
Covert testified that the Union conducted an ‘‘open
house’’ meeting at the Mahana Hotel on April 19. Mahana
Hotel adjoins the Employer’s facility with its address at 110
Kaanapali Shores Drive. She attended a portion of this meet-
ing as held in a guest room. On her way out for the start
of a shift, she ran across Crider, who said she understood the
meeting had been canceled. Covert corrected this misconcep-
tion and Crider appeared to proceed into the meeting.
Crider herself testified that approximately the next day
Linmark made a statement to a group of employees in the
cafeteria, asking if they had heard about the Mahana Hotel
meeting being canceled. Crider recalled that no one of the
group she was with made any comment on his statement.
The Union had disseminated postcards on April 18 as a
‘‘FLASH’’ item of preelection propaganda, claiming that
1325EMBASSY SUITES RESORT
management had sought to have the room canceled for its
Mahana Hotel meeting. This activity associates to Covert’s
testimony that a fire code restriction had, in fact, caused the
room actually used for the Mahana Hotel meeting to be
changed.
7. As to Objection X
The facts in support of this objection are the same as those
relied upon relative to section 5. above in relation to the
Kokua Council. However, Petitioner preserved an argument
that maintenance of a suggestion box was objectionable. (Tr.
398–399.)
D. Credibility
1. Subject areas requiring credibility resolutions
While there are several fundamental and technical issues
to the case, the necessary credibility resolutions may be nar-
rowly drawn. They essentially constitute the Covert-Teske
discussion, the asserted Periou episodes as testified about by
both Lecomte and Disher, and the attribution of Linmark
making unlawful implications and impressions. Additionally,
comment is added relative to DeFries, because of the sub-
stantial testimony offered by this individual on practically all
subject matters of the case.
2. Assessment of witnesses
a. John DeFries
The testimony of this individual was not contradicted in
any direct manner; however, I add an express credibility as-
sessment that from the standpoint of internal consistency and
apparent probability, coupled with completely favorable char-
acteristics of demeanor, I am persuaded that his testimony is
fully reliable and constitutes the one chief source for a find-
ing of general case context.
An effective contradiction of his sweeping ‘‘insider’’
knowledge concerning business matters would not really be
expected. Beyond this, however, I deliberately extend sin-
gular credibility approval to DeFries’ testimony. In prac-
tically all aspects of its wide ranging coverage, as happening
on 3 different days during the overall hearing, his testimony
was impressively unhesitating, persuasively stated, and
overlain with every appearance of candid veracity.
I am aware, and have considered, that General Counsel
contends how suspect disparity crept into DeFries’ testimony
over the days. (Tr. 863.) I simply disagree that such is a
valid observation, and relegate any variances by DeFries in
detail, emphasis, or new recollection to the ordinary frailties
of human memory; and here, as to him, not in any appre-
ciable way an avenue by which his overview, or his particu-
lars, should be discredited.
Accordingly, DeFries’ several subject matter versions are
accepted as truth on issues such as (1) how, when, and why
a 7-percent pay increase was established, and (2) general op-
erating policy of the Sweeney enterprises, with special ref-
erence to employee holiday entitlement, plus his collateral
description of innocuous events at an immediate postelection
picnic hosted by the Employer for all employees.
b. Cyrille Lecomte
This individual presented in highly questionable fashion.
His testimony was uncertain at best, and ‘‘convenient’’ at
worst. I seriously doubt that he spoke from true knowledge
of pertinent facts, and thus fully discredit his testimony.
c. Mireya Disher
This individual demonstrated a snide regard for her role in
the evidence-taking process. She lacked a serious, positive
intention to be accurate, and did not impress me as possess-
ing, or even respecting, the truth about matters experienced.
I fully discredit her testimony.
d. Florentina Crider
This individual was persuasively sincere appearing, and
displayed a satisfactory ability to accurately recall useful
facts. She exhibited an excellent demeanor while testifying,
and I am fully persuaded to credit her in a substantial regard.
e. Todd Teske
This individual testified grudgingly, and in such palpable
discomfort that I cannot believe his various assertions. I am
convinced he was withholding a candid description of hap-
penings in which he participated, and for this reason I dis-
credit him in all significant regard.
f. Philippe Periou
This individual was candid seeming, and of apparent intent
to speak honestly. On general demeanor grounds I give full
credence to his testimony.
g. Janette Paguyo
This individual had an extremely poor memory, and a pe-
culiar paralysis of response to questioning such that I fully
doubt her ability to testify effectively. Notably she could not
recall even if a pay raise occurred, or even whether she had
attended any immediate post election, employer-sponsored
picnic. I have no basis to accept any of her halting testi-
mony, and thus discredit her in full.
h. Rana Linmark
This individual testified with an unusual style, and seemed
to elevate an ability at engaging in disarming remarks over
a true effort directed toward accurate recollections. I gen-
erally discredit his testimony, and particularly so the denial
of having spoken in the manner attributed to him by Crider.
i. Rebecca Covert
This individual was precise, assured, thorough, possessed
of a unique ability at making subtle distinctions and gen-
erally impressed as being of superior veracity. I credit her
testimony in full.
E. Holdings
1. Introduction
In briefing this case, the Union points at both to principal
evidence relating to its several objections, and hearsay com-
mentary (U. Br. pp. 9, 20, and 24). It also injects that the
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 See Oak Apparel, 218 NLRB 701 (1975).
9 The Objections in this case largely encompass, and are essen-
tially coextensive with, the unfair labor practice allegations of the
consolidated complaint. There will be independently stated findings
and conclusions regarding these unfair labor practice allegations as
set forth in par. 6 of the complaint. Coplay Cement Co., 292 NLRB
309 (1989).
Employer openly opposed collective bargaining for its em-
ployees from the inception (U. Br. p. 8).
The various instances of hearsay testimony were success-
fully objected to at times, and at other times were not ob-
jected to or the testimony was permitted for purposes other
than the truth of matters asserted. I have no reason to give
weight to any of the hearsay testimony that would otherwise
serve as a basis for ruling on any objection turning on utter-
ances of an employer agent. Thus, subject to credibility as-
sessments, all conduct addressed by the surviving objections
which involves verbalisms is evaluated only in terms of non-
hearsay evidence.
Further, the provisions of Section 8(c) of the Act apply in
normal fashion. The Charging Party intimates that Respond-
ent’s ‘‘union free’’ objective was perilous (U. Br. p. 8). Re-
spondent expressly claimed the ‘‘free speech’’ import of Sec-
tion 8(c) of the Act (Tr. 742). I make the point to emphasize
that while various utterances and writings associated to Re-
spondent are plainly, if not stridently, partisan, Section 8(c)
does have constant and undifferentiated application through-
out.
In the statements of union counsel, and his briefing of the
case, the ‘‘critical period’’ was repeatedly raised. To fix this
precise time span in relation to present proceedings I restate
the controlling rule of Ideal Electric & Mfg. Co., 134 NLRB
1275 (1961), in which the critical period for representation
case purposes was revised by the Board to commence on the
date of filing a petition, which here was December 6, and
from that point extending to the election date of April 21.
A subtle issue of agency is present in the case, calling for
its preliminary consideration. Teske and Linmark were both
admitted by the Employer to be ‘‘statutory supervisors’’ dur-
ing the critical period involved; a statement of record from
counsel qualified by adding that the ‘‘full scope’’ of their au-
thority was possessed only ‘‘within certain limits’’ (Tr. 20).
The Employer further qualified its admission by adding that
Teske and Linmark were not to be construed as agents of the
Employer, or persons acting on its behalf. The General
Counsel promptly stated a satisfaction with this admission,
contending that it must be construed as meeting the defini-
tion set out in Section 2(11) of the Act respecting both per-
sons.
Fundamentally, I decline to make extensive comment on
what the Employer considered the effect of its limited admis-
sion to be. Every indication from the evidence is that, at
least, both individuals exercise independent judgment
grounded in their knowledge and experience within the in-
dustry, while assigning employees to daily, task-oriented du-
ties and to longer range utilization patterns. Teske was con-
sidered ‘‘boss’’ of the beverage department, trained hotel
staff in his own area of operations, was coached in avoidance
of ‘‘TIPS’’ activity, and did not disclaim the premise of
questions alluding to employees ‘‘under him.’’ As a second-
ary indicator, Teske was salaried along with both Periou and
Amaral. Linmark had ‘‘run of the [whole] hotel’’ outside an
estimated 30 percent of his time spent with housekeeping. He
functioned uniquely as a communicator, while also ‘‘train-
ing’’ housekeeping employees. His role was authoritative in
regard to frequent orientation sessions for hotel staff, as fur-
ther exemplified here when he once orchestrated a seniority
lottery. I find both Teske and Linmark to be supervisors
within the meaning of Section 2(11) of the Act, and, as al-
leged in paragraph 5. of the complaint, resultantly agents of
the Employer within the meaning of Section 2(13). See Wes-
tinghouse Electric Corp., 277 NLRB 136, 141–142 (1985);
Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986);
and Minnesota Boxed Meat, 282 NLRB 1211–1214 (1987),
and authorities cited there.
2. As to Objection I
Respondent argues that the remarks attributed to Teske
and Linmark, even if true, are merely isolated utterances
under the circumstances and, at best, de minimis. I first dis-
agree with this evaluation regarding the statement of Teske
to Covert on April 18 or 19. Teske is found from the proofs
in this case to be a supervisor within meaning of the Act at
the time in question. As such, any verbalisms he made in
other than a totally joking manner would reasonably be taken
as an expression of management intent. By speaking to Cov-
ert as he did, and conjuring up the specter of a high level,
confidential memo to the effect that a 7-percent across-the-
board pay increase for employees would apply only should
the Union lose the election, a communication of great signifi-
cance resulted. The significance is that it was apparently au-
thoritative, and constituted the type of remark which would
likely be passed around within the work force. It is immate-
rial that Covert herself was a ‘‘plant’’ in the bargaining
unit.8 Teske neither knew this, nor if he did would it make
a difference, since the communication was uttered in a seri-
ous sense, and strictly within the context of employment
matters as being discussed between the two. It might be ar-
gued that existing, overall expression of company position,
both by more highly placed officials and in writing, would
constitute a disavowal of Teske’s conduct. This factor is not,
however, sufficient under the circumstances, and therefore
his remarks are attributable to the Employer. Cf. Mike O’Con-
nor Chevrolet, 209 NLRB 701 (1974). Nothing in the discus-
sion or exchange of remarks gave reason to believe that
Teske was expressing merely a personal opinion, as opposed
to a statement attributed to innermost management. Cf.
Napili Shores Condominium Homeowners’ Assn. v. NLRB,
939 F.2d 717 (9th Cir. 1991), 91 C.D.O.S. 5712 (opinion
filed July 18, 1991).
In regard to the episode with Linmark, as testified to by
Crider, his utterance as established from the credited evi-
dence was a straightforward threat that voting for the Union
would directly endanger the openly discussed hopes for a
general wage increase. In such circumstances his remarks,
readily heard by at least several employees according to the
testimony of Crider, constituted a type of direct threat that
further establishes merit to the Union’s Objection I. See
Frank’s Nursery & Crafts, 297 NLRB 781 (1990).9 I shall
recommend sustaining Objection I on collective grounds of
these two utterances.
The Union argues that inquiry by management personnel
as to whether Disher had previously worked at ILWU-rep-
1327EMBASSY SUITES RESORT
resented hotels, and Teske’s prediction as spoken to Covert
that ‘‘things’’ would not improve with union representation,
are both impermissible. But the inquiries regarding Disher’s
work background show no menace beyond interpersonal curi-
osity, and Teske’s statement is vague and unfocused to the
point of insignificance. Nor does his conjecture about wheth-
er employees would ultimately have locker facilities provide
a valid basis for disturbing this election. I shall recommend
overruling this component of Objection I.
3. As to Objection II
I first of all discount the testimony of Crider that Rogers
had said she would receive a pay raise after 30 days. Evalua-
tion of such a remark, although credited secondarily by rea-
son of Rogers not being called as a witness, is affected by
one major factor. That factor is that the Employer was in its
absolute startup period, and I cannot give the remark attrib-
uted to Rogers ordinary meaning as a employment promise.
It must be remembered that this entire winter period was one
of constant and extensive bandying among employees con-
cerning the matter of pay improvement, and Crider herself
testified about this being heard as other employees specu-
lated variously on the subject. Additionally, Covert testified
that she belatedly heard scuttlebutt from several employees
that managers had promised pay raises back in December,
but she conceded having no personal knowledge of this hav-
ing been done.
In NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), the
Supreme Court wrote:
The danger inherent in well-timed increases in bene-
fits is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged. [Id. at 409.]
Under Exchange Parts, the burden of establishing a justifi-
able motive for announcing a change in benefits reposes in
the employer. Wintex Knitting Mills, 216 NLRB 1058 (1975).
The more significant analysis begins with a passage from
American Mirror Co., 269 NLRB 1091 (1984). Here the
adopted language, as pertaining to this issue of the case, read
as follows:
The Board has examined the question of wage in-
crease withholdings during and after the union organi-
zational campaigns in a multitude of cases over the
years. Numerous authorities can be generally cited
bothfor and against the legitimacy of such withholdings.
Thin and almost subtle distinctions are found in many
of the cases. For example, the Board has held that it
is the employer’s legal duty to proceed as he would
have done had the Union not been on the scene, but the
Board has also held that it is not unlawful per se for
an employer to deny wage increases during a union
campaign, for otherwise it may be accused of attempt-
ing to influence employees to decide against being rep-
resented by the Union. To threaten employees with
complete abrogation of increases has been held to be
unlawful, and likewise in the case of withholding an al-
ready determined, announced, and scheduled wage in-
crease. it [sic] also appears that the Board makes a dis-
tinction between an announced and scheduled increase,
considering the same as an ‘‘existing’’ benefit, and a
possible or expected increase but one not based on
promise but upon increases in previous years where no
specific date or amount could be set with any degree
of certainty. [Id. at 1094.]
This case differs markedly from most within the ‘‘mul-
titude’’ of cases on this point, for the chief and vital reason
that this operation was only starting up. As such there was
no background of benefits provided in a ‘‘haphazard fash-
ion’’ nor any past practice at which to look. See Village
Thrift Store, 272 NLRB 572 (1983).
Relatedly in Uarco, 169 NLRB 1153 (1968), that company
deferred periodic pay increases with a detailed explanation
that it was to avoid the impression of ‘‘vote-buying.’’ The
Board concluded from all the circumstances that employees
could not reasonably have concluded that such a postpone-
ment was intended to influence their decision on a question
concerning representation for purposes of collective bargain-
ing. Here the case is so much stronger because there is no
pattern from history, nor substantial evidence that pay raises
were actually formulated on any relevant timetable.
Thus an employer’s grant of benefits during the course of
union activity must be charted in a manner avoiding the per-
ception that such grant is responsive to the union activity.
The point was described in Wm. T. Burnett & Co., 273
NLRB 1084 (1984), as follows:
An employer’s legal duty in deciding whether to
grant benefits while a representation case is pending is
to determine that question precisely as he would if a
union was not in the picture. If the employer would
have granted the benefit because of economic cir-
cumstances unrelated to union organization, the grant of
those benefits will not violate the Act. On the other
hand, if the employer’s course is altered by virtue of
the union’s presence, then the employer has violated the
Act, and this is true whether he confers benefits be-
cause of the union or withholds them because of the
union.
An earlier statement of this principle relative to wage in-
crease issues was defined as turning on consideration of
whether the action in question had been ‘‘done in such a
way’’ as to intimate a reward or inducement relative to selec-
tion or rejection of a union as a collective-bargaining rep-
resentative. Century Moving & Storage, 251 NLRB 671
(1980). Within such doctrine an employer could lawfully
withhold action on a wage increase during a union campaign
based on this desire to avoid the appearance of interference
and the commission of an act which would be considered an
unfair labor practice. Great Atlantic & Pacific Tea Co., 192
NLRB 645 (1971). Holdings such as the ones immediately
above are in stark contrast to cases in which (1) pay raise
expectations were plainly conditioned on the selection of a
union, (2) an ‘‘established wage increase policy’’ was sus-
pended without explaining, and in fact intending, to avoid
any interference and appearance of interference with election
processes, or (3) the obvious situation of serious and exten-
sive unlawful activities commenced immediately after an or-
ganizing drive with a ‘‘plethora of acts of interference, re-
1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
straint, and coercion against employees.’’ General Telephone
Directory Co., 233 NLRB 422 (1977); Smith & Smith Air-
craft Co., 264 NLRB 516 (1982); Standard-Coosa-Thatcher,
257 NLRB 304 (1981); and Parma Industries, 292 NLRB 90
(1988).
Applying the principles of the authorities above I conclude
that Respondent has acted lawfully in the undramatic and
consistent advice to employees that wage increases must be
deferred until after the election. The course so ‘‘chart[ed]’’
was about as neutral as could be done under the cir-
cumstances, given the high undercurrent of rumoring and the
extended period of time in which two unions were competing
between themselves and heavily propagandizing many as-
pects of this new employment setting. According I find that
Objection II, to the extent that it calls in question the with-
holding of wage increases by the Employer, is without merit.
Cf. Ketlaw Broadcasting Co., 302 NLRB 381 (1991).
The credited statement of Rogers to Crider that she would
receive a pay raise after 30 days was noted above. I except
this evidence from the otherwise credited testimony of
Crider. From what is known of Rogers, she was well ori-
ented in the Employer’s basic business plan, and I believe
DeFries’ highly convincing denial of any awareness that such
had occurred invites the appropriate inference. I discredit
Lecomte’s testimony that a preelection enticement was
voiced by Periou. I note that the Employer’s memorandum
of April 11 provided direct and timely response to the per-
sistent cross-talk among employees about a pay raise, much
of which had an origin in propaganda between the competing
unions. The postelection remark attributed to Periou by sus-
pect testimony of Disher, was fixed as occurring at a time
outside the critical period for considering objectionable con-
duct that might affect an election. In sum, I shall recommend
overruling Objection II.
4. As to Objection III
Here, there are several areas to consider. As to the final
handbook benefits Covert did not advance a well-founded
analysis of the respective language covering premium over-
time pay after 8 hours per day. In considering the draft and
final versions on the subject, a better understanding would be
that the notion of overtime pay after 8 hours in a day was
first inartfully or incompletely described; and made plain
when the final handbook issued. I see nothing in this clari-
fication, nor the varying of originally proposed vacation for-
mulas and listed holidays, that forms an objectionable grant
of benefits. The so-termed ‘‘solidified’’ Employee Council
simply a renaming and belated creation of what amounted to
the Employer’s problem-solving tribunal, as it chose to term
potential employee dissatisfaction.
As to holiday bonuses, these were satisfactorily explained
by DeFries as a one-time waiver of otherwise punitive eligi-
bility policy. The complimentary room program was also sat-
isfactorily explained as a feature of the employee’s job ori-
entation.
The vacation, holiday, yearend bonuses, and room stay
perquisites, given when the resort was in its fledgling days
of operation, the employee of the month program, and the es-
tablishment of structured seniority rosters are instances of
startup policy implementation by management and nothing
more. This is particularly true of the seniority pull, where
random results could just as easily have favored union sup-
porters as those neutral on the subject, undecided, or op-
posed. The pay adjustments in the Maui Rose operation are
not shown to be anything more than correction of payroll
error or inadvertence. Finally, the 7-percent wage increase,
when granted, occurred well after the election and could not
have had an effect. I shall recommend overruling Objection
III to this extent.
However, timing of these matters remains to be consid-
ered. The Union has preserved this point from the hearing,
and expressly argued the ‘‘well-timed conferral’’ doctrine in
its brief. As a general rule an employer deciding whether or
not to grant benefits while a representation election is pend-
ing should decide the question ‘‘as he would if a union were
not in the picture.’’
Great Atlantic & Pacific Tea Co., supra at 29 fn. 1. The
related component of this rule is that if an employer’s course
of action is prompted by a union’s presence, then a violation
of the Act would arise from such conference. A grant (or
promise) of benefits made during an organizational effort
may be presumed unlawful, unless the employer can provide
an explanation other than the organizational activity for the
timing of such grant or announce of such benefits. Village
Thrift Store, supra. The requirement in such an instance is
for the employer to show by objective evidence that it would
have made the grant or announced the benefits even had a
union not been present. Here, the 7-percent pay raise, ulti-
mately announced on May 3 and effective on May 16, was
properly explained in terms of legitimate deferral during the
critical period with a solid foundation in periodic and re-
strained advice to employees of the circumstances. DeFries
is particularly convincing in this regard by his testimony that
although not a direct participant in the pay setting decisions,
he was an official sufficiently within high management cir-
cles that he that knew generally of the approach to be taken.
The situation can be well contrasted with Mercury Indus-
tries, 242 NLRB 90 (1979), in which an inference was war-
ranted that wage increases granted during the pendency of
objections were actually designed to erode union support
among employees, in terms of the background and practice
of wage increases by that employer at that workplace. This
area of the law, and the distinctions that are involved, is also
well illustrated in Baker Brush Co., 233 NLRB 561 (1977),
in which a violation was found where that employer ‘‘sought
to disparage’’ that union in the course of an organizing cam-
paign in which it conveyed the impression that the actively
organizing union ‘‘stood in the way’’ of a timely wage in-
crease to employees. While Respondent here is accused of
such conduct, the actual facts of the case do not bear that
out. In truth, much of the controversy relating to blame for
a pay increase not materializing prior to the election arose
from the propaganda between competing unions and was in
no way attributable to the Employer other than an isolated,
unauthorized utterance by Supervisor Linmark.
A wage increase issue can turn on consideration of it
being ‘‘done in such a way’’ as to intimate a reward or in-
ducement relative to selection or rejection of a union as col-
lective-bargaining representative. Century Moving & Storage,
251 NLRB 671 (1980). I consider that the Employer’s way
here was not an impermissible one.
The seniority pull is distinct from other miscellaneous
areas embraced within this objection. I earlier observed that
random nature of the seniority pull could have results just as
1329EMBASSY SUITES RESORT
10 The Employer did not discuss this expressly stated component
of Objection III in its brief.
easily favoring adherents to the Union as those neutral on the
subject, undecided, or opposed. However, this does not ad-
dress why the pull was done only 2 days before the election.
I hold that the Employer has not satisfactorily justified its
action in this regard. Notably Linmark testified here in satis-
factorily credible manner on the specific point, that proce-
dure for the pull was hastily cobbled together even as em-
ployees gathered for the adventure in chance. No logical,
operational, or practical reason was advanced for dealing at
that particular time with this long-unresolved matter of se-
niority standing among persons within a large and labor-in-
tensive department.10 Nor was there a satisfactory expla-
nation for the announcement of the new floating holiday by
the mechanism of a release of the final handbook scant days
before the election. It was, after all, originally intended to be
released back in January according to the cover memoran-
dum over the draft, and only the lamest of excuses has been
offered for the timing shown. This settling out of major
terms and conditions of employment, such as basic seniority
and coveted economic benefits, is too likely to have an unto-
ward effect on employees about to vote on the question of
union representation. As done here, the action reasonably af-
fects employees in their right to a free choice, and thus is
objectionable as claimed.
5. As to Objection IV
The concept, description, and activities of the Kokua or
Employee Council is completely an instance of startup man-
agement prerogatives. I see nothing about this entity, its pur-
pose or composition, which supports the literal objection to
which it associates. I shall recommend overruling Objection
IV.
6. As to Objection V
In South Shore Hospital, 229 NLRB 363, 364 (1977), the
Board stated:
The Board has held that a respondent does not create
an impression of surveillance by merely stating that it
is aware of a rumor pertaining to the union activities
of its employees so long as there is no evidence indicat-
ing that the respondent could only have learned of the
rumor through surveillance. G. C. Murphy Company,
217 NLRB 34, 36 (1975). Since a rumor is, by defini-
tion, talk or opinion widely disseminated with no dis-
cernible source, employees could not reasonably assume
from a respondent’s knowledge of such a rumor, with-
out more, that their union activities had been placed
under surveillance. Certainly Furgeson’s comment re-
vealed Respondent’s anxiety over its feared unioniza-
tion of the central service and distribution department,
but such a communication to an employee by itself is
not an unfair labor practice within the meaning of Act.
Similarly, in an earlier G. C. Murphy Co. case, 216
NLRB 785, 792 (1975), the Board held that the re-
spondent did not create an impression of surveillance
by a supervisor’s statement that he had ‘‘heard’’ that
two employees were engaging in union activities. In
that case, the Board found that it was reasonable to as-
sume that the respondent had learned of the employees’
union activities without having to seek such informa-
tion, and that the statement itself did not suggest that
the supervisor had solicited the information or had en-
gaged in spying.
The essential rule of the case is:
In determining whether a respondent created an im-
pression of surveillance, the test applied by the Board
is whether employees would reasonably assume from
the statement in question that their union activities had
been placed under surveillance. See Schrementi Bros.,
Inc., 179 NLRB 853 (1969). South Shore Hospital,
supra at 363.
Here, the statements at issue could just as easily be idle
remarks as they could be requisite implication that employ-
ees were being deliberately watched as time passed from pe-
tition filing to the election. There was in fact no indication
of actual surveillance, for the impression of which to be cre-
ated, and mere badgering of employees is not actionable. The
Board has expressly discussed these distinctions, and particu-
larly those between actual and implied surveillance, with the
latter being typically categorized as creation of the impres-
sion. See Photo Drive Up, 267 NLRB 329 (1983); Snyder
Tank Corp, 177 NLRB 724 (1969). The distinctions involved
are quite plain in a case such as Video Tape Co., 288 NLRB
646 (1989), where it was expressly found that the unlawful
creation of the impression of surveillance was based on in-
forming employees that they were being watched and union
supporters in particular were being even ‘‘more closely
watched.’’ Video Tape, supra at 646 fn. 2.
An impression of surveillance is created only when con-
duct is reasonably taken to mean that the union activities of
employees are, have been, or likely will be, spied on. A
passing conversational reference by Linmark to the Union’s
openly known about Mahana Hotel meeting is not the type
of conduct establishing a presence of this doctrine. Cf. Ham-
ilton Avnet Electronics, 240 NLRB 781 fn. 4 (1979). I shall
recommend overruling Objection V.
7. As to Objection X
This objection completely merges into Objection IV as
treated above. If an employer-sponsored tribunal is legally
spurious, its function as a magnet for grievable dissatisfac-
tion is also at issue. As I do not find the Employer (Kokua)
Council an objectionable vehicle for employee complaints to
management, I similarly do not find it as an instrument of
improperly soliciting grievances. I shall recommend over-
ruling Objection X. This conclusion also applies to availabil-
ity of a suggestion box.
F. Employer’s Collateral Contentions
1. Due-process issue
The Employer broadly objects to the nature and extent of
the representation case procedure to date. Here, its conten-
tions encompass all action regarding treatment of the Union’s
objections, and the question of whether in the course of this
hearing it was adequately informed of the issues faced. The
position was, at a timely point in the hearing, summarized
orally by the Employer’s counsel. (Tr. 669–703.)
1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Matthews v. Eldridge was a case decided in terms of the due-
process clause of the fifth amendment in relation to proceedings
under Title II of the Social Security Act, 42 U.S.C. par. 423. In that
case, a divided Court held that an evidentiary hearing was not re-
quired under the facts.
12 At the outset of the hearing, during off-the-record discussion,
the Employer’s counsel introduced the ‘‘new enterprise bar’’ concept
as a position of his client. By this the Employer sought to be insu-
lated from any representation petition for a 6-month period after
commencing operations. This was an express item of the Employer’s
position statement, as furnished in writing to the Union in Novem-
ber. The concept had been ‘‘raised’’ in the Employer’s request for
review of the original Decision and Direction of Election (Tr. 690);
exceptions that were briefly denied in a Board order stating ‘‘no
substantial issues warranting review’’ had been raised. The point was
not briefed, and I extend no further treatment to the ‘‘new enterprise
bar’’ subject as appearing sporadically in this record.
13 See Copes-Vulcan, Inc., 237 NLRB 1253, 1257 (1978).
14 The content of Sec. 9(c)(1)(A)(i) of the Act is not a jurisdic-
tional prerequisite to Board action; rather, it is an administrative ex-
pedient for determination of whether, generally, further proceedings
are warranted. Big Y Foods, supra.
In the course of its extensive briefing on the point, Mat-
thews v. Eldridge, 424 U.S. 319 (1976), was cited for a fun-
damental argument that the Union was never required ‘‘to
clarify its position.’’ (E. Br., p. 30.)11 I quote (as corrected)
the passage from Matthews v. Eldridge on which the Em-
ployer essentially bases its vigorous contention. This is:
[I]dentification of the specific dictates of due process
generally requires consideration of three distinct factors:
First, the private interest that will be affected by the of-
ficial action; second, the risk of an erroneous depriva-
tion of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or sub-
stitute procedural requirement would entail.
On due reflection about these teachings, and the Employ-
er’s argument in general, I am satisfied that a fair and ade-
quate basis existed for it to be informed of allegedly objec-
tionable conduct with respect to the election. The original
objections have both been explicitly corrected and modified.
(U. Exh. H: Tr. 709–711.) Additionally, union counsel was
pressed to explain the essence of varius portions of the stated
objections, in the context of nearly 3 days of hearing having
passed and the Union having rested its presentation. (Tr.
692–716.) My ultimate belief in this regard is that the Em-
ployer has been provided full and sufficient assertions as to
what the objections, in their totality, comprise. According, I
reject the contention that due-process rights have not been af-
forded.
2. Question concerning representation (QCR) issue
On this subject the Employer relies primarily on Star Trib-
une, 295 NLRB 543 (1989), arguing that a valid showing of
interest has not properly underpinned the case, because many
individuals are presumed to have signed authorization cards
for the Union prior to December 5 (or their particular date
of hire).12 In Star Tribune the Board achieved a major legal
excursion through principles of public policy, legislative his-
tory and fundamental labor-management rationale in the ap-
plication of Section 8(a)(5) as involving mandatory subjects
of bargaining. The context was that of applicants, or
preemployees, and on the facts of the case the Board re-
quired disclosure of relevant information to the labor organi-
zation involved.
I do not believe Star Tribune is controlling on the point
about which the Employer seeks to prevail. More relevantly
the showing of interest in support of Section 9 proceedings
is not a litigable matter. NLRB v. Metro-Truck Body, 613
F.2d 746 (9th Cir. 1979), rehearing denied 613 F.2d 746
(1980), and cert. denied 104 LRRM 2551 (1980). See also
Big Y Foods, Inc., 238 NLRB 855 (1978); cf. Dart Con-
tainer Corp., 294 NLRB 798 (1989). This was also a matter
argued in the basic hearing on the Union’s petition, a point
rejected by the Acting Regional Director with reliance on
Metro-Truck Body and Riviera Manor Nursing Home, 200
NLRB 333 (1972). In Riviera Manor a supplemental decision
by the Board found that employees who had signed author-
ization cards ‘‘in anticipation of employment,’’ although the
situation was not straightforwardly that they were mere ap-
plicants. The point made was that ‘‘arrangements had been
made for their employment,’’ and the variation was whether
they were ‘‘actually working’’ by having commenced duties.
The fact situation pertained to sisters, and a third person
whose contested authorization card did not require the pass-
ing on that individual dispute by the Board.13
I note analogous cases in which unfair labor practice pro-
ceedings lead to findings that statutory rights were at stake
even though a limited or special employment relationship
was present. In Crown Cork & Seal Co., 255 NLRB 14
(1981), an 8(a)(1) violation was found where employment
was denied to an applicant believed to be engaged in union
activities or because of her personal relationship to those so
engaged. Comparably, in Daily Transit Mix Corp., 238
NLRB 879 (1978), a statement in violation of the Act was
made to the effect that applicants for employment, who were
members of a certain labor organization, would not for that
reason be hired.
On balance, I hold that principles established in Star Trib-
une, even noting their rootedness in Pittsburgh Plate Glass
v. NLRB, 404 U.S. 157 (1971), do not control here. I believe,
contrarily, that the paramount policy is that of authorizing
highly discretionary administrative determination as to the
adequacy and appropriateness of showings of interest, under
whatever particular facts pertain. I thus conclude a viable
question concerning representation exists here, and at all ma-
terial times has existed.14
THE UNFAIR LABOR PRACTICES CASE
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Hawaii corporation with an office and
place of business located at Lahaina, Island of Maui, Hawaii,
where it has been engaged in the operation of a hotel and
restaurant, providing food and lodging for guests. In the
course and conduct of such business operations, it annually
receives gross revenues in excess of $500,000 while purchas-
ing products, goods, and materials valued in excess of
1331EMBASSY SUITES RESORT
$50,000 received directly at its Maui facility from points lo-
cated outside the State of Hawaii. On these admitted facts,
I find that Respondent is, and has been at all material times,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and, as is also admitted,
that the Charging Party is a labor organization within the
meaning of the Section 2(5).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary
In consolidated unfair labor practice and representation
proceeding cases it is well established that the standard of
proof for violations of Section 8 is a higher one than what
is required by the Board to show the breach of laboratory
conditions in the conduct of its representation proceedings.
This principle will be applied in the discussion that follows.
B. As to Complaint Paragraph 6(a),(i)
1. Evidence
This allegation is based on the testimony of Crider relative
to utterances made by Linmark in early April 1989 as de-
scribed above.
2. Holding
While the phraseology of the complaint alleges that state-
ments of Linmark at issue ‘‘implied’’ the reason for preven-
tion of a pay raise, I treat this as tantamount to a threat that
one would not be granted should employees vote for the
Union. These circumstances constitute the commission of an
unfair labor practice because of the direct threat to employee
rights that is involved. Accordingly, I find this component of
the complaint to be adequately supported by proof.
C. As to Complaint Paragraph 6(a),(ii)
1. Evidence
This allegation is also based on the testimony of Crider
relative to the utterance made by Linmark concerning a
union open house at the Mahana Hotel.
2. Holding
The utterance at issue is an innocuous one, and does not
give rise to a showing that the impression of surveillance of
union activities was created.
D. As to Complaint Paragraph 6(b),(i)
1. Evidence
This component of the complaint is based on the discus-
sion between Teske and Covert at the premises on either
April 18 or 19.
2. Holding
I do not consider that Teske’s statements, as found to have
been made through the credited testimony of Covert, con-
stitute the requisite implication that employees’ union activi-
ties were under surveillance, as opposed to its threatening
characteristic. See Hamilton Avnet, supra.
E. As to Complaint Paragraph 6(b),(ii)
1. Evidence
This component of the complaint relates to Teske’s state-
ment that locker facilities might not be provided by Re-
spondent when its final construction of the hotel was com-
plete.
2. Holding
There is no indication that this comment constituted a
threat, as contrasted with an observation or personal opinion
relative to the final finishing of the resort. Accordingly I do
not find that the allegation of paragraph 6(b),(ii) has been
supported by probative evidence.
F. As to Complaint Paragraph 6(b),(iii)
1. Evidence
This component of the complaint is again based on the
credited evidence regarding Teske’s remarks to Covert, and
is the same episode as relating to Objection I.
2. Holding
In view of the finding that such a remark was made, and
my belief that the alleged implication is tantamount to a
threat, I conclude that paragraph 6(b),(iii) of the complaint
has been supported by probative evidence.
G. As to Complaint Paragraph 6(c)
1. Evidence
The evidence pertaining to this component of the com-
plaint is the same as that relating to the implemented pay
raise as covered in Objection II.
2. Holding
On the same basis that I found that such objection was
without merit, I supported by probative evidence.
H. The 10(b) Issue
Respondent contends that under Nickles Bakery of Indiana,
296 NLRB 927 (1989), there is an insufficient factual resem-
blance, or nexus, between content of the charge and ‘‘sub-
stantive allegations of the complaint.’’
In NLRB v. Fant Milling Co., 360 U.S. 301, 308 (1959),
the Supreme Court discussed the Board’s authority to dis-
charge its duty of protecting public rights, holding that the
agency’s broad investigatory powers of inquiry are not con-
fined to ‘‘precise particularizations of a charge.’’ Consistent
with Fant Milling, the Board has long required a sufficient
factual relationship between specific allegations in the charge
and resultant complaint allegations. See Red Food Store, 252
NLRB 116 (1980), and cases cited.
Redd-I, Inc., 290 NLRB 1115 (1988), held that in deciding
whether a complaint is closely related to charge allegations,
the Board would apply a closely related test comprised of the
following factors. First, the Board would examine whether
otherwise untimely allegations involve the same ‘‘class,’’ or
legal theory, as allegations in the timely filed charge. Sec-
ond, the Board would look at whether otherwise untimely al-
1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
legations arise from the same factual situation or sequence of
events as advanced in the pending timely charge. Finally, the
Board may consider whether a respondent would raise the
same or similar defenses to both allegations. This third cri-
terion was explained as meaning that a reasonable respondent
would preserve similar evidence and prepare a similar case
in defending against the otherwise untimely allegations as
would have been prepared and preserved in resisting basic
and timely allegations of the pending charge. Id. at 1117.
Respondent contends here that none of the applicable fac-
tors defined in Redd-I, Inc. have been satisfied in the General
Counsel’s complaint. Further, it cites G. W. Galloway Co. v.
NLRB, 856 F.2d 275 (D.C. Cir. 1988), to support its position.
This recent court of appeals decision denied enforcement to
G. W. Galloway Co., 281 NLRB 262 (1986), and in doing
so involved two essential notions as law of the case. One
was reiteration of the fundamental premise that Section 10(b)
of the Act provides how an unfair labor practice charge de-
fines and limits the scope of litigation brought by the Board.
More specifically, Galloway also barred freewheeling expan-
sion of 8(a)(1) grounded allegations in a complaint, stem-
ming only from the catchall, boilerplate ‘‘other acts’’ lan-
guage of the Board’s preprinted charge form. In the later ap-
plication of Redd-I, Inc., the Board in Nickles Bakery over-
ruled past precedent tending to exempt 8(a)(1) complaint al-
legations from the traditionally ‘‘closely related’’ test, stating
in part that it did so ‘‘in light of’’ the court’s Galloway deci-
sion.
I believe that each prong of the Redd-I, Inc. test have been
fulfilled. As a conceptual ‘‘class,’’ as part of the same se-
quence of events in a fractious organizational drive, and as
presuming the same general legal approach to resisting the
complaint, the necessary connections are all well shown. Fur-
ther, the practicality of the situation militates against Re-
spondent. A hearing on the objections had been long set, and
the charge, as filed on August 11, was followed only 3 days
later by an order from the Regional Director postponing the
hearing indefinitely. Under these circumstances, it must be
thought that Respondent was well and fully aware of matters
in controversy.
During the hearing Respondent moved to dismiss this
complaint on Nickles Bakery grounds (Tr. 718), and renewed
the motion in its brief. (R. Br. p. 29.) The reservation of rul-
ing is now lifted, and I deny this motion to dismiss.
CONCLUSIONS OF LAW
On the basis of the above findings of fact and on the en-
tire record, I make the following conclusions of law
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. Respondent violated Section 8(a)(1) of the Act by
threatening to withhold a 7-percent general pay increase be-
cause of the Union.
4. The unfair labor practice described above is an unfair
labor practice affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that Respondent engaged in a certain unfair
labor practice, I shall recommend that it be ordered to cease
and desist therefrom and to post a notice to employees for
a period of 60 consecutive days in order that employees may
be apprised of their rights under the Act, and Respondent’s
obligation to remedy the unfair labor practice found above.
[Recommended Order omitted from publication.]