Kauai Veterans Express Co.

National Labor Relations Board - Board Decisions

Apr 16, 2020

369 N.L.R.B. 59 (N.L.R.B. 2020)

369 NLRB No. 59
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Kauai Veterans Express Co. and Operating Engineers
Local Union No. 3. Cases 20–CA–193339, 20–
CA–203829, 20–CA–204839, and 20–CA–209177
April 16, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On April 27, 2018, Administrative Law Judge Dickie
Montemayor issued the attached decision, and on May 17,
2019, he issued an Errata. The Respondent filed excep-
tions and a supporting brief, the General Counsel and the
Charging Party filed answering briefs, and the Respondent
filed reply briefs. The General Counsel also filed excep-
tions with supporting argument, and the Respondent filed
an answering brief.1
The National Labor Relations Board has considered the
decision2 and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions,4 as further explained below, to
amend the remedy, and to adopt the recommended Order
as modified and set forth in full below.5
1. We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by withdrawing recognition from the Union on July 1,
2017, based on the January 2017 petition presented to the
Respondent by employee James Kanei.6 We find, as the
judge did, that the January 2017 petition did not constitute
1 In his answering brief, the General Counsel moves to strike the Re-
spondent’s exceptions. The General Counsel contends that the Respond-
ent’s exceptions do not satisfy the requirements set forth in Sec.
102.46(a)(1) of the Board’s Rules and Regulations because they fail to
contain citations to the record. Although the Respondent’s exceptions
do not contain pinpoint citations, we find that the exceptions substan-
tially comply with the Board’s requirements because they refer to record
evidence. See St. George Warehouse, Inc., 341 NLRB 904, 904 fn.1
(2004), enfd. 420 F.3d 294 (3d Cir. 2005). Accordingly, we deny the
General Counsel’s motion.
2 On November 7, 2019, pursuant to Reliant Energy, 339 NLRB 66
(2003), the General Counsel filed a letter calling the Board’s attention to
a decision by the U.S. District Court for the District of Hawaii granting
a motion for summary judgment filed by the Hawaii Annuity Trust Fund
for Operating Engineers regarding the Respondent’s delinquent trust
fund contributions. The Respondent filed a responsive letter.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
objective evidence of the Union’s actual loss of majority
support because it reflected only the signing employees’
desire to cease membership in the Union, not their desire
to cease having union representation. See Anderson Lum-
ber Co., 360 NLRB 538, 542 (2014), enfd. in pertinent
part 801 F.3d 321 (D.C. Cir. 2015). Moreover, the petition
itself contained contradictory statements expressing both
a desire to withdraw membership from the Union and to
participate as a member of the Union.
We also agree with the judge that unit employees’ re-
sponse to a memorandum dated September 1, 2016, did
not separately constitute reliable evidence of employee
disaffection with the Union. That memorandum was pre-
pared by the Respondent on company letterhead, ad-
dressed to unit employees from the company president,
presented to employees by a company official at a staff
meeting, and asked the employees, without any assurances
of confidentiality, to check a box on the memorandum to
indicate whether they “would like to be in the Union.”
There is no credible showing that the Respondent initiated
this polling effort based on prior evidence creating uncer-
tainty about unit employees’ continuing majority support
for the Union. As such, the memorandum constituted im-
proper employer solicitation of employee disaffection,
and the employees’ responses do not represent a valid
showing that there was an actual loss of majority support
for the Union.
Further, we agree with the judge’s finding that the Sep-
tember 2016 memorandum initiative manifests the Re-
spondent’s direct involvement in the decertification effort
that led to the subsequent January 2017 petition and war-
rants the presumption under Hearst Corp., 281 NLRB 764
(1986), enfd. mem. 837 F.2d 1088 (5th Cir. 1988), that the
4 In agreeing with the judge that the Respondent unlawfully polled
employees in August 2017 about their union sympathies in violation of
Sec. 8(a)(1) by preparing declarations for them to sign stating that they
did not support the Union, we find that the Respondent failed to show
that it complied with the safeguards set forth in Johnnie’s Poultry, 146
NLRB 770, 774–775 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965).
We observe, however, that several courts of appeals have disagreed with
the Johnnie’s Poultry standard. See Tschiggfrie Properties, Ltd. v.
NLRB, 896 F.3d 880, 888 (8th Cir. 2018) (rejecting Johnnie’s Poultry
and citing cases in which the Second, Fifth, and Seventh Circuits have
done likewise). In a future appropriate case, we would be willing to
reconsider Johnnie’s Poultry, but no party asks us to do so here and, in
any event, doing so would not impact our agreement with the judge that
the Respondent unlawfully polled its employees.
5 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the amended remedy and the Board’s standard
remedial language, and in accordance with our decision in Excel Con-
tainer, Inc., 325 NLRB 17 (1997).
6 Inasmuch as we affirm the judge’s finding that the Respondent un-
lawfully withdrew recognition from the Union, we also affirm his find-
ings that the Respondent subsequently violated Sec. 8(a)(5) by unilater-
ally ceasing contractually required union trust fund payments and by uni-
laterally ceasing dues deductions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
petition was tainted. See AIM Aerospace Sumner, 367
NLRB No. 148, slip op. at 1 fn. 2 (2019) (quoting SFO
Good-Nite Inn, 357 NLRB 79, 80 (2011), enfd. 700 F.3d
1 (D.C. Cir. 2012)) (Hearst presumption applies when an
employer “directly instigate[d] or propel[led]” the decer-
tification effort by “actively soliciting, encouraging, pro-
moting, or providing assistance in the initiation, signing,
or filing of an employee petition seeking to decertify the
bargaining representative.”). Accordingly, the Respond-
ent could not rely on the January 2017 petition as proof of
the Union’s actual loss of majority support even if the lan-
guage of the petition clearly showed employees’ intent not
to be represented.7
2. We also adopt the judge’s finding that the Respond-
ent violated Section 8(a)(5) by failing to provide the Un-
ion with information it requested on December 15, 2016,
and January 25, 2017. To the extent the Union requested
information about nonunit employees, we clarify that such
information is not presumptively relevant and the Union,
as the requesting party, must demonstrate its relevance.
See, e.g., Shoppers Food Warehouse, 315 NLRB 258, 259
(1994). The Union met that burden here because it was
seeking the non-unit information to police the parties’ col-
lective-bargaining agreement and ascertain whether non-
unit employees had been performing bargaining unit
work. See, e.g., United Graphics, 281 NLRB 463, 465
(1986). With respect to the identity of the non-unit em-
ployees, we note that the Respondent could have, but did
not, timely assert a confidentiality interest in that infor-
mation or propose an accommodation to satisfy the Un-
ion’s request.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, having found that
the Respondent violated Section 8(a)(5) and (1) by with-
drawing recognition from the Union, we adopt the judge’s
7 Having found that the January 2017 petition was tainted in this man-
ner, we find it unnecessary to pass on whether manager Susan Taniguchi
further tainted the petition by providing more than ministerial aid in its
initiation and circulation.
8 Although the Respondent has excepted generally to the judge’s rec-
ommended Order, it has not specifically excepted to the paragraphs af-
firmatively requiring the Respondent to “recognize and bargain in good
faith with the Union as the exclusive collective-bargaining representative
of the unit.” Accordingly, we find it unnecessary to provide a justifica-
tion for that remedy. See Scepter, Inc. v. NLRB, 280 F.3d 1053, 1057
(D.C. Cir. 2002); Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972, 978 (D.C.
Cir. 1998); SKC Electric, Inc., 350 NLRB 857, 862 fn. 15 (2007); Her-
itage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001).
9 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delinquent
contributions during the period of the delinquency, the Respondent will
recommendation that the Respondent must recognize and,
upon request, bargain with the Union as the exclusive col-
lective-bargaining representative of employees in the ap-
propriate bargaining unit and embody any understanding
reached in a signed agreement. 8 In addition, having found
that the Respondent has violated Section 8(a)(5) and (1)
by failing to make contractually required contributions to
the Union’s pension annuity trust fund since August 2017,
we shall order the Respondent to make whole its unit em-
ployees by making all such delinquent contributions, in-
cluding any additional amounts due the fund in accord-
ance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). Moreover, the Respondent shall be re-
quired to reimburse unit employees for any expenses en-
suing from its failure to make the required contributions,
as set forth in Kraft Plumbing & Heating, 252 NLRB 891,
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981).9 Such amounts should be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at
the rate prescribed in New Horizons, 283 NLRB 1171
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Further, having af-
firmed the judge’s finding that the Respondent has vio-
lated Section 8(a)(5) and (1) by failing to deduct and remit
dues to the Union as required by the parties’ collective-
bargaining agreement, we shall order the Respondent to
reimburse the Union for any dues that it failed to deduct
from wages and remit to the Union on behalf of employees
who had executed valid checkoff authorizations from Au-
gust 1, 2017, until the collective-bargaining agreement ex-
pired on June 30, 2019,10 with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra, and
without recouping the money owed for past dues from
those employees.11
The judge’s recommended remedy included an affirm-
ative requirement that the Respondent make bargaining
reimburse the employee, but the amount of such reimbursement will con-
stitute a setoff to the amount that the Respondent otherwise owes the
fund.
10 In accord with the Board’s holding in Valley Hospital Medical Cen-
ter, Inc., 368 NLRB No. 139 (2019), the Respondent’s dues reimburse-
ment obligation terminated as of the June 30, 2019 expiration of the par-
ties’ collective-bargaining agreement.
11 See, e.g., Alamo Rent-A-Car, 362 NLRB 1091, 1091 fn. 1 (2015),
review denied sub nom. Enterprise Leasing Company of Florida v
NLRB, 831 F.3d 534 (D.C. Cir. 2016). No party here asks us to recon-
sider the dues-recoupment bar, but we would be willing to do so in a
future appropriate case. The reimbursement requirement will be offset
by the amount of any dues that the Union collected over the compliance
period from employees covered by the dues payment order. See id.
KAUAI VETERANS EXPRESS CO. 3
unit employees whole for losses suffered as a result of any
unilateral changes in their terms and conditions of em-
ployment subsequent to the unlawful withdrawal of recog-
nition. In the absence of any allegation of unilateral
changes other than the cessation of trust fund contribu-
tions and dues deductions, we shall delete this require-
ment.
The judge’s recommended remedy also required a pub-
lic reading of the notice by a Board agent or responsible
management official. The Board will order a notice-read-
ing remedy “where the violations are so numerous and se-
rious that the reading aloud of a notice is considered nec-
essary to enable employees to exercise their Section 7
rights in an atmosphere free of coercion, or where the vi-
olations in a case are egregious.” Postal Service, 339
NLRB 1162, 1163 (2003). Here, a notice-reading remedy
is neither necessary nor appropriate to remedy the viola-
tions in this case because the Board’s traditional remedies
suffice to inform employees of the Respondent’s unlawful
conduct. See, e.g., Bodega Latina Corp. d/b/a El Super,
367 NLRB No. 34, slip op. at 1 (2018). We accordingly
amend the judge’s remedy to delete the notice-reading re-
quirement. However, reflecting the judge’s concern that
the notice be read in English “and the native Hawaiian lan-
guage spoken by employees,” we shall order the Respond-
ent to post the notice and, where appropriate, distribute it
in English and in any other language or languages the Re-
gional Director deems appropriate. See AIM Aerospace
Sumner, Inc., supra, slip op. at 1 fn. 3; Kolkka Tables &
Finnish-American Saunas, 335 NLRB 844, 851 (2001).
ORDER
The National Labor Relations Board orders that the Re-
spondent, Kauai Veterans Express Co., Lihue Kauai, Ha-
waii, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from Operating Engineers
Local Union No. 3 (the Union) as the exclusive collective-
bargaining representative of the employees in the bargain-
ing unit.
(b) Failing and refusing to make contractually required
contributions to the Union’s pension annuity trust fund.
(c) Failing and refusing to deduct and remit dues to the
Union pursuant to valid checkoff authorizations during the
term of any collective-bargaining agreement.
(d) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(e) Unlawfully polling employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All Truck Drivers, Tractor Trailer Drivers, Tandem
Dump Truck Drivers, Freight Truck Drivers, and Me-
chanics employed by the Employer at its Lihue, Kauai
facility.
(b) Make all contractually required contributions to the
Union’s pension annuity trust fund that the Respondent
has failed to make since August 2017, and reimburse the
unit employees, with interest, for any expenses resulting
from its failure to make those required payments, in the
manner prescribed in the amended remedy section of this
decision.
(c) Reimburse the Union for all dues that, following the
unlawful withdrawal of recognition, it failed to deduct and
remit to the Union pursuant to the dues-checkoff provision
of the collective-bargaining agreement before the agree-
ment expired on June 30, 2019, in the manner prescribed
in the amended remedy section of this decision.
(d) Furnish to the Union in a timely manner the infor-
mation requested on December 15, 2016, and January 25,
2017.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Lihue Kauai, Hawaii, copies of the attached
notice marked “Appendix” in English and any other lan-
guages deemed appropriate by the Regional Director.12
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being signed by the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to phys-
ical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at that facility at any time since December 15,
2016.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 20 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. April 16, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT withdraw recognition from Operating En-
gineers Local Union No. 3 (the Union) as the exclusive
collective-bargaining representative of our bargaining unit
employees.
WE WILL NOT fail to make contractually required con-
tributions to the Union’s pension annuity trust fund.
WE WILL NOT fail and refuse to deduct union dues and
remit them to the Union on behalf of eligible employees
during the term of a collective-bargaining agreement con-
taining a valid dues-checkoff provision.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT unlawfully poll our employees about their
union support.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All Truck Drivers, Tractor Trailer Drivers, Tandem
Dump Truck Drivers, Freight Truck Drivers, and Me-
chanics employed by the Employer at its Lihue, Kauai
facility.
WE WILL make all contractually required contributions
to the Union’s pension annuity trust fund that we have
failed to make since August 2017, and reimburse you, with
interest, for any expenses resulting from our failure to
make those required contributions.
WE WILL reimburse the Union for all dues that, follow-
ing our unlawful withdrawal of recognition, we failed to
deduct and remit to the Union from August 2017 until
June 30, 2019, pursuant to the dues-checkoff provision of
our 2014–2019 collective-bargaining agreement with the
Union.
WE WILL provide the Union information it requested on
December 15, 2016, and January 24, 2017.
KAUAI VETERANS EXPRESS CO.
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-193339 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
KAUAI VETERANS EXPRESS CO. 5
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940
Meredith A. Burns Esq., for the General Counsel.
Jeffrey S. Harris Esq. and Christine K.D. Belcaid, Esq.
(Torkildson, Katz, Hetherington, Harris, & Knorek), for the
Respondent.
Gening Liao, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case
was tried before me on December 11–12, 2017, in Kauai, Ha-
waii. Charging Party (Union) filed charges on February 17, Au-
gust 7 and 22, October 30, and November 2, 2017. The charges
alleged violations by Kauai Veterans Express Co. (Respondent)
of Section 8(a)(5) and (1) of the National Labor Relations Act,
as amended (the Act). The parties were given full opportunity to
participate, to introduce relevant evidence, to examine and cross-
examine witnesses, and to file briefs which were received on
February 15, 2018. I carefully observed the demeanor of the wit-
nesses as they testified, and I rely on those observations in mak-
ing credibility determinations. I have studied the whole record,
the posttrial briefs, and the authorities cited. Based on the de-
tailed findings and analysis below, I conclude and find the Re-
spondent violated the Act essentially as alleged in the com-
plaint.1
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and I find that
1. (a) At all material times, Respondent has been a corpora-
tion with a place of business in Lihue, Kauai, Hawaii, and has
been engaged in the business of providing trucking and hauling
services.
(b) In conducting its operations during the 12-month period
ending October 31, 2017, Respondent provided services in ex-
cess of $50,000 to Young Brothers, Ltd. Young Brothers Ltd.,
has been engaged in inter-island freight transportation of freight
and cargo with corporate offices in Honolulu, Hawaii, and oper-
ations located within the state of Hawaii.
(c) In conducting its operations during the 12-month period
ending October 31, 2017, Young Brothers, Ltd., purchased and
received at its Hawaii facility goods valued in excess of $50,000
1 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
directly from points outside the state of Hawaii.
(d) At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent (the unit) consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All Truck Drivers, Tractor Trailer Drivers, Tandem Dump
Truck Drivers, Freight Truck Drivers, and Mechanics em-
ployed by the Employer at its Lihue, Kauai facility.
Since about 2002, Respondent has recognized the Union as
the exclusive collective-bargaining representative of the unit
based on Section 9(a) of the Act. This recognition has been em-
bodied in a recognition agreement dated February 28, 2002.
Respondent and the Union are parties to a collective-bargain-
ing agreement with effective dates from July 1, 2014, to June 30,
2019.
At all material times the following individuals held the posi-
tions set forth opposite their respective names and have been su-
pervisors of Respondent within the meaning of Section 2(11) of
the Act and agents of Respondent within the meaning of Sec-
tion 2(13) of the Act:
(a) Stanley Morinaka, Sr., President
(b) Haku Rivera- Operational Manager
(c) Susan Taniguchi- Office Manager
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Kauai Veterans Express Co. (KVE) is a trucking company that
provides trucking services and has been in existence for approx-
imately 20 years. The company was established by Stan
Morinaka who currently serves as its president. The company is
a relatively small operation that employs a general manager,
Haku Rivera, an office manager, Susan Taniguchi and during the
periods relevant to this case, eleven truck drivers. Since 2002,
KVE has recognized Charging Party as the exclusive representa-
tive of KVE bargaining unit employees. On September 2, 2016,
the Union filed a grievance alleging that three bargaining unit
employees were laid off in violation of Section 16.00.00 of the
Kauai Trucking agreement. (GC Exh. 7.) On December 15,
2016, Pane Meatoga Jr., the Union’s district representative, sub-
mitted an information request to KVE addressed to its President
Stan Morinaka. (GC Exh. 8.) The request specifically asked for
the following information:
1. Company records for all hauling, delivering and/or trucking
activity for all trucks in Kauai Veterans Express' fleet from Jan-
uary 1, 2016 to the present, including the name and classifica-
tion of the driver of each truck engaged in any hauling, deliv-
ering or trucking activity.
consideration of the entire record for this case. My findings of fact en-
compass the credible testimony and evidence presented at trial, as well
as logical inferences drawn therefrom.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
2. The specific trucking activity performed by Kauai Veterans'
Express, if any, that Kauai Veteran's Express is claiming is not
covered bargaining unit work.
3. A list of all non-union employees who are engaged in any
trucking activity, the employee's classification and the dates
and hours of work performed by each such employee. (GC Ex.
8).
On December 28, 2016, Respondent’s counsel sent union
counsel an email with a subject line of “freight hauling question”
and attached copies of the 2003 and 2014 bargaining agreements.
(GC Exh. 15.) On January 10, 2017, KVE sent a list of KVE
drivers along with an Operating Engineers Trust Funds Audit.
(GC Exh. 13.) On January 12, 2017, KVE sent union counsel an
email contending the contract did not cover freight. (GC Exh.
16.) On January 17, 2016, union counsel wrote Respondent’s
counsel advising that the Union “has received no response to its
information request dated December 15, 2016” and advised it
would file an unfair labor practice charge if the information was
not provided by January 20, 2017. (GC Exh. 14.) That same day
Respondent’s counsel responded by indicating that the infor-
mation sent on January 10 responded to the “first item in the De-
cember 15 letter.” (GC Exh. 14.) On January 25, union counsel
and Respondent’s counsel met to discuss issues relating to the
pending arbitration and specifically discussed the December 15,
2016 information requests. After the meeting, union counsel
sent KVE another information request which included the fol-
lowing:
1. The name of the other company owned, or partially owned,
by Mr. Morinaka that performs freight hauling work, and when
Mr. Morinaka acquired an interest in this company and the spe-
cific nature of his ownership interest in this company.
2. The work hours and type of work performed by all employ-
ees who drive for Kauai Veterans Express.
3. Copies of the freight hauling contracts signed by Kauai Vet-
erans' Express from 2008 to the present.
4. Copies of the freight hauling contract signed by the other en-
tity from 2008 to the present. (GC Exh. 17.)
In addition to the above, union counsel reiterated its need for,
“the documents requested in its December 15, 2016 information
request” and again specifically reiterated its previous request for
company records for all hauling, delivering and/or trucking ac-
tivity. (GC Exh. 17.) On March 2, 2017, counsel for Respondent
sent an email to union counsel regarding the December 15, 2016,
and January 25, 2017 requests for information. The email as-
serted inter alia that the union had not indicated that it needed the
information, “generally for the performance of its duties as the
exclusive collective bargaining representative of the bargaining
unit.” (GC Exh. 19.) The email went on to request that the Union
send, “one letter with an itemized list of all the information the
union presently seeks with a logical explanation of the relevancy
of the information to either the grievance or to the policing of the
collective bargaining agreement.” (GC Exh. 19.) On March 7,
2017, Union counsel responded by explaining what information
it was seeking, why it believed it was relevant and entitled to
receive the information. (GC Exh. 20.) Counsel for the Union
ended the correspondence by noting that, “we are just running in
circles. Provide the information.” (GC Exh. 20.) On April 12,
2017, Respondent’s counsel sent an email with the identical in-
formation it sent on January 10, 2017. (GC Exh. 21.) The email
stated, “you have hours reports attached this covers some of the
union’s information request. I do not have any of the other infor-
mation sought.” (GC Exh. 21.) On April 12, 2016, union coun-
sel responded by stating, “So are you saying I’m not getting an-
ything else?” (GC Exh. 22.) The following day union counsel
emailed Respondent’s counsel asking, “am I correct that your
client does not intend to provide any additional documents or in-
formation?” (GC Exh. 23.) To which Respondent’s counsel as-
serted, “I am still trying to follow up.” (GC Exh. 23.) No other
information was provided by Respondent in response to the re-
quests.
B. The Withdrawal of Recognition
On September 1, 2016, the petition set forth below in its orig-
inal form was circulated among drivers.
The memo, drafted on company letterhead, clearly referenced
that it was from the president of the company inquiring of em-
ployees if they would “like to be in the Union.” (GC Exh. 26.)
The document was prepared by Susan Taniguchi, the office man-
ager and the handwritten date was that of Morinaka. After
Morinaka received the document from Haku Rivera, he
KAUAI VETERANS' EXPRESS COMPANY
P.O. BOX 3329
UHUE, HI 96766
PHR (803) 245-3553
SEPT. t 2016
RE: UNION A go/di
FROM: STAN MORINAKA, SR.
PLEASE CHECK IF YOU WOULD UKE TO BE IN THE UNION.
n"—Na me YES
1 f Palanl Correa
2 Russell Fernandes
NO
✓FAC
3 'Alan Jeffqes
4 Kema Kanahele
5 Kimo Kanei
6 Dana KaohelauRI
Erlc Medelros
B James Meyer
9 UM IVO
10 I Rysan Sakamoto
7- K A
/ (14-
7-1Ptt_
✓
KAUAI VETERANS EXPRESS CO. 7
forwarded it to the office manager who then forwarded it to Re-
spondent’s counsel. (GC Exh. 1z.) On or about January 12, 2017,
Taniguchi passed on a message to Morinaka after consulting
with Respondent’s counsel that:
the key date for withdrawing from the Union was July 1, 2017;
2) at that time, KVE employees may give Mr. Morinaka a pe-
tition signed by a majority of the employees in the bargaining
unit saying they want to get out of the Union; and (3) KVE can
respond to requests for information on how to word the petition
to decertify the Union, but should not initiate, promote, or sub-
stantially assist the circulation or signing of the petition. (GC
Exh. 1Z).
Taniguchi thereafter spoke with employee James Kanei, III to
advise him on the process of creating a petition and getting it
signed. Kanei convened a meeting after work with other employ-
ees on January 26, 2017. Thereafter, Kanei returned to Tanigu-
chi for assistance in drafting a petition. Kanei described the pro-
cess as follows:
Q. I'm sorry, did she give you instructions on what to do to
prepare?
A. She helped me. I kind of like worked it on my own and she
kind of steered me in the right direction.
Q. And her direction was that you should address it to Mr. Har-
ris; is that right?
A. It was on the paperwork but she gave it back to me. She
drafted it again matching with mine trying to put it together.
Q. Okay. Okay. I think I -- so you drafted something?
A. Yes.
Q. And then you gave it to Ms. Taniguchi?
A. Yes, and I put in my words the way I speak so it wasn't
appropriate, let's put it that way.
Q. Okay. Then you gave it to Ms. Taniguchi?
A. Yes, and she helped me revamp it again, you know.
Q. And then Ms. Taniguchi gave you some instructions?
A. She gave me advice, you know, what to do, or wording or
some way to understand. (Tr. 255–257.)
After Taganuchi and Kanei were finished creating the docu-
ment, it was presented to employees for their signature. After
the document was signed it was turned over to Taganuchi on Jan-
uary 28, 2017. (GC Exh. 1z.) The document, in its original for-
mat, is set forth below for ease of reference.
As is evident from the last paragraph, the document contained
contradictory language some language indicating a desire to
“withdraw membership” from the union and other language ex-
pressing a clear “desire to participate as a member.” (GC Exh.
24.) Thereafter on February 1, 2017, Respondent’s counsel sent
union counsel an email advising:
Kauai Veterans Express withdraws recognition of Operating
Engineers based on the attached evidence the union has lost
majority support. The withdrawal will be effective July 1,
2017, three years after the effective date of the memorandum
of agreement. (GC Exh. 24.)
C. Polling of Employees
On August 18, 2017, as part of a reply in support of motion
for partial summary judgment KVE attached declarations from
some employees who signed the January 2017, petition. The
declarations were prepared by Respondent’s counsel on or about
August 15, 2017. In drafting the declarations, Respondent’s
counsel spoke with Kanei and prepared the declarations based
upon the conversations with him. (Tr. 2; 157–165.) At no time
M. Jeffery S. Norris Ecq
100 Bishop Street, 151 Floor Topa Building
,lonolul 96813-4187
Dear Mr. Harrls,
On lanuarp. 26, 23:7 a meeting between Shop Steward James K. Kane, 34, other employee was
conducted in which they derided that they no longer desired to be a part etre Operating
Eroneers Local Unon N3.
They deod el to withdraw thelr membership Irons the unton immediately upon your approval
ol the ;roper correspondence to facilitate their request to the union so they can stop further
rnanclal enrtributons to the (lperating Engineers Local Union a3.
Below, is the list ot employees requesting to cease their mcmbershlp in the Operating
Englneers Leta! union 03
Oak
Jam K. Kanel 3rd
aeleni Correa I
/11 /I 1
Passel nerrandes I 4'1 0,V1PMF
Alao Jeffries
I
. /- )-,7'1
Leonard Kanahek • 60.A. iS:... ibr.4 /4/ ../
Eric Mebane 1101 v.) 6 . 1-21- I l
James M Illairfft./— /-2-7-)7
crimp ap / I Wa. " I occi .0-11
R n Salramoto MIL , . 111241;1-
My Mut' end Orator, above indicates my desire individual desire to participate as o member of
Operating Engineers Local Union Thia choke inns made a/ rny DWI free MB and desire ond AM not
coerced in makine my decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
was the Union notified that declarations regarding their union
sentiments were being drafted. After the declarations were pre-
pared they were emailed directly to Kanei. The declarations of
these employees had identical language stating, “I no longer
wished to be represented by the Union, when I signed the peti-
tion, and I no longer wish to be represented by the Union today.”
The declarations were prepared on Respondent counsel’s plead-
ing paper which contained a business heading identifying Re-
spondent counsels as “Attorneys for Respondent Kauai Veterans
Espress Co.” (GC Exh. 1m.) On August 18, 2017, Respondent’s
counsel received signed declarations from employees Kanei,
Palani Correa, Russel Fernandes, Allan Jeffries, Eric Mederos,
and Rysan Sakamoto. The declarations were transmitted to Re-
spondent’s counsel by Taniguchi. (Tr. 162.)
D. KVE Unilaterally Stopped Making Trust Fund Payments
and Deducting Dues
As part of its collective-bargaining agreement KVE agreed to
make contributions to the Union’s pension annuity trust fund.
(Tr. 70.) KVE was also required to deduct dues from all union
drivers and send the payment to the Union on a regular monthly
basis. After July Respondent ceased making the pension annuity
contributions and as of August 1, 2017, ceased deducting dues.
(GC Exh. 10.) At no time prior to either of these actions did
Respondent provide any notice of its intentions to the Union
and/or attempt to bargain with the union regarding these
changes. (Tr. 70–73.)
E. Analysis
1. The withdrawal of recognition.
Section 8(a)(5) of the Act requires an employer to recognize
and bargain with the labor organization chosen by a majority of
its employees. When a union is recognized as the collective-bar-
gaining representative of a unit of employees, that union is enti-
tled to a presumption that it enjoys the support of a majority of
the represented employees. Auciello Iron Works, Inc. v. NLRB,
517 U.S. 781, 785–787, 116 S.Ct. 1754, 135 L.Ed.2d 64 (1996).
The presumption of majority status is irrebuttable during the
term of a collective-bargaining agreement, up to three years.
Thereafter, the presumption becomes rebuttable. Id. at 786, 116
S.Ct. 1754; McDonald Partners, Inc. v. NLRB, 331 F.3d 1002,
1004 (D.C. Cir.2003).
One option available to an employer that questions an incum-
bent union’s majority status is to ask the Board to conduct a de-
certification election, in which employees cast confidential votes
for or against the union. 29 U.S.C. § 159(c)(1); Levitz, 333
NLRB 717 (2001). The Board has “emphasize[d] that Board-
conducted elections are the preferred method of testing employ-
ees’ support for unions.” Id. at 727.
Alternatively, an employer may withdraw recognition unilat-
erally. An employer may not “withdraw recognition unless it can
prove that an incumbent union has, in fact, lost majority sup-
port.” Levitz, 333 NLRB at 723. In this regard the Board has
2 Without seeing the original document it is difficult to determine
whether the actual document that was signed by the employees actually
contained the first three paragraphs of the letter or whether the original
document that was signed by employees was a document that contained
cautioned:
We emphasize that an employer with objective evidence that
the union has lost majority support ... withdraws recognition at
its peril. If the union contests the withdrawal of recognition in
an unfair labor practice proceeding, the employer will have to
prove by a preponderance of the evidence that the union had,
in fact, lost majority support at the time the employer withdrew
recognition. Id. at 725.
In order to determine whether the Respondent has in fact re-
butted the presumption that the Union enjoyed a majority of sup-
port the Board pays particularly close attention to the language
of the petition or documents which Respondent relies upon as
well as objective evidence to determine if an employer could rea-
sonably conclude that a majority of employees no longer support
the Union.
I find that Respondent’s reliance on the document is insuffi-
cient to carry its burden to rebut the presumption of majority sup-
port. The document is clearly contradictory and ambiguous in
that it sets forth each employees “individual desire to participate
as a member of Operating Engineers Local #3.” (GC Exh. 1z.)2
Even if one were to overlook the apparent contradiction of the
last paragraph, the other language in the document is similarly
insufficient as it refers only to members wanting to “cease their
membership.” (GC Exh. 1z.) As noted by the court in Pacific
Coast Supply, LLC v. NLRB., 801 F.3d 321, 328 (2015):
The Board has long maintained a distinction between an em-
ployee’s desire to be represented by a union, and his or her de-
sire to be a member of a union. Whether a union has “majority
support turns on whether most unit employees wish to have un-
ion representation, not on whether most unit employees are
members of a particular union.” Trans–Lux Midwest Corp.,
335 NLRB 230, 232 (2001). Only the desire of a majority not
to have union representation warrants withdrawal of recogni-
tion. See R.J.B. Knits, Inc., 309 NLRB 201, 206 (1992). Ac-
cordingly, the Board has long held that, for employee state-
ments to support the showing an employer must make to war-
rant withdrawal, such statements “must convey an intent not to
be represented by the union as distinguished from a desire not
to become members for any of a number of reasons or an ina-
bility or unwillingness to pay dues.” Grand Lodge of Ohio, 233
NLRB 143, 144 (1977). Invoking that line of authority, the ALJ
in this case noted that “[t]he Board has held for over 40 years
that ‘there is no necessary correlation between membership and
the number of union supporters since no one could know how
many employees who favor union bargaining do not become
or remain members thereof.’ ” Pacific Coast, 360 NLRB No.
67, at 6 n. 9 (quoting Terrell Mach. Co., 173 NLRB 1480, 1481
(1969), enf’d, 427 F.2d 1088 (4th Cir.1970)); accord DaNite
Holdings, Ltd., 356 NLRB No. 124, at 6 (Mar. 31, 2011).
Thus, the language which merely references a desire to “cease
membership” coupled with the other objective evidence of
no language whatsoever referencing any desire to “cease their member-
ship” but was later attached to the letter by scanning or photo-copying..
(GC Exh. 1z.)
KAUAI VETERANS EXPRESS CO. 9
record is insufficient under well settled Board law. Anderson
Lumber Co., 360 NLRB 538 (2014).
In addition, other factors tainted the withdrawal of recogni-
tion. The Board has set forth guidance for determining whether,
and to what extent, an employer may provide assistance to its
employees about resigning their union membership and with-
drawing their authorization of union dues deductions. Employers
may give employees information on how to resign from a union,
without violating the Act, if the help it provides merely concerns
the procedure or mechanics of doing so and does not rise above
mere “ministerial” assistance. In Narricot Industries 353 NLRB
775, 776 (2009), the Board found that an employer provided
more than permissible ““ministerial aid” where an employee
asked his HR director “how to oust the union” and the director
prepared a petition for the inquiring employee, as well as, two
other employees, telling them the number of signatures needed
and directing them to return the petitions to him daily). See
Winn-Dixie Stores, Inc., 128 NLRB 574, 588 (1960) (finding a
violation of the Act where the employer prepared a form resig-
nation from the union letter, addressed the envelopes to send the
letters, and, saw to the mailing of the resignation letters to the
union). An employer may not lawfully encourage or solicit em-
ployees to withdraw or resign from the Union. Erickson’s Sentry
of Bend, 273 NLRB 63, 64 (1984) (employer conduct, found to
impair employee free choice in violation of the Act, where store
manager, upon request of an employee, provided language for a
petition to resign from the union, which the employee copied,
signed and gave to the manager in the manager’s office; and, the
manager discussed with the employee which other employees
the manager might approach about resigning from the union,
calling those employees’ to his office; thereby, gave the appear-
ance the employer favored the petition, and, encouraged the em-
ployees to sign the petition). An employer may not give advice
to employees on how to resign from the union, Florida Wire &
Cable, 333 NLRB 378, 381 (2001) (solicitation of employees to
resign from the union was found where the employer gave em-
ployees advice on how to resign from the union, displayed sam-
ple resignation letters at a meeting with employees, and, mailed
sample letters to employees). Grondorf, Field, Black & Co. v.
NLRB, 107 F.3d 882, 886 (D.C. Cir. 1997) (employer prepared
and distributed union resignation forms, obtained signatures of
several employees, completed and dated forms, and forwarded
the forms to the union’s business manager).
Applying the above standards to the facts of this case, it is
abundantly clear that Taniguchi, Respondent’s Office Manager
provided more than “ministerial support.” Her actions were in
fact similar to those presented in Narricort and Winn- Dixie
Stores and Ericson’s in that she engaged in drafting of the
3 Respondent’s own characterization of Taniguchi’s assistance makes
clear that she provided more than ministerial support. (R. Br. at 9-10.)
4 Respondent argued that Taniguchi was not Respondent’s agent. (R.
Br. at 26.) I am not persuaded by Respondent’s contention. In analyzing
questions of agency, the common law rule traditionally applied by the
Board is that of “apparent authority.” The test applied is whether “under
all the circumstances, the employees would reasonably believe that the
employee in question was reflecting company policy and speaking and
acting for management.” Eihorn Enterprises, 279 NLRB 576 (1986),
enfd. 843 F.2d 1507 (2d Cir. 1988). The determination is whether under
petition including replacing language, provided advice on ob-
taining signatures, acted as an intermediary and forwarded the
document to Respondent’s counsel.3 Her actions rose above
providing mere “ministerial” assistance and were thus contrary
to established Board precedent.4
I also find that the first petition circulated on company letter
head clearly stating that it was “From Stan Morinaka, Sr.” was
similarly insufficient to meet Respondent’s burden and on its
own was contrary to well established Board law and tainted the
entire withdrawal process. (GC Exh. 26.) The petition was writ-
ten by KVE’s operations manager on KVE letterhead, it was cir-
culated by the manager, there was no confidentiality afforded
employees regarding their response to the memo. The Board has
long held that such direct involvement by an employer violates
the Act. In the first instance, an employer may not ‘initiate a
decertification petition, solicit signatures for the petition or lend
more than minimal support and approval to the securing of sig-
natures and the filing of the petition.”’ Sociedad Espanola de
Auxilio Mutuo y Beneficencia de PR., 342 NLRB 458, 459
(2004) (quoting Eastern States Optical Co., 275 NLRB 371, 372
(1985)). The facts surrounding the September 1, 2016 petition
established that the idea of decertification was not prompted by
employees but was initiated by the employer and then proffered
to employees. Secondly, circulating a petition on company let-
terhead with the designation that it was from the President of the
company is inherently coercive. See Placke Toyota, Inc., 215
NLRB 395 (1974), wherein the Board found that a petition in
which, “Respondent put its imprimatur upon the petition at the
very outset by permitting it to be circulated as a company docu-
ment after being typed on Respondent's letterhead” to interfere
and coerce employees thereby violating Section 8(a)(1) of the
Act.
I therefore find that the Respondent's withdrawal of recogni-
tion of the Union violated Section 8(a)(5) and (1) of Act.
2. The failure to provide information
At the outset, it is important to note that there is no obligation
on the part of an employer to supply information after an em-
ployer has lawfully withdrawn recognition. Champion Home
Builders Co., 350 NLRB 788 (2007); Renal Care of Buffalo, Inc.,
347 NLRB 1284, 1286 (2006). In failing to provide the re-
quested information, Respondent relied upon its withdrawal of
recognition. The obvious problem with Respondent’s position
in this regard is that its withdrawal was unlawful.
If an employer fails to provide the union with requested infor-
mation that is relevant to the union’s proper performance of its
collective-bargaining obligations, it violates Section 8(a)(5) and
(1) of the Act. Leland Stanford Junior University & Service
the circumstances the employee would reasonably believe that the al-
leged agent was acting on behalf of management. United Scrap Metal
Inc., 344 NLRB 467 (2005). Her title alone clothed her with the “appar-
ent authority” of act on behalf of management. Moreover, her own dec-
laration makes clear that she did act in such a capacity repeatedly serving
as an official conduit between the president, Morinaka and Respondent’s
counsel. (GC Exh. 1z.) Her actions in securing the petition on behalf of
Respondent were also done in her capacity as office manager under the
apparent authority to do so. See for example SKC Elec., Inc., 350 NLRB
857, 862 (2007).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Employees Local No. 715, SEIU, 262 NLRB 136, 138 (1982)
(citing Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979)).
An employer is obligated under the Act to provide requested in-
formation that is relevant to the union’s responsibilities regard-
ing both administration and enforcement of an existing collec-
tive-bargaining agreement. NLRB v. Truitt Mfg. Co., 351 U.S.
149, 152–153 (1956).
The relevance of any request is ascertained by analyzing the
information request against a liberal “discovery” standard of rel-
evance as distinguished from the standard of relevance in trial
proceedings. NLRB v. Acme Industrial Co., 385 U.S. 432 fn. 6
(1967). The discovery standard for relevance is construed
“broadly to encompass any matter that bears on or that reasona-
bly could lead to other matter[s] that could bear on, any issue…”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978);
Hickman v. Taylor, 329 U.S. 495 (1947).
The information doesn’t have to be dispositive of the issues
between the parties; it only has to have some bearing on it. Thus,
an employer must furnish information that is of even probable or
potential relevance to the union’s duties. Pfizer Inc., 268 NLRB
916 (1984); Conrock Co., 263 NLRB 1293, 1294 (1982).
The Information Requests Were Presumptively Relevant
The evidence of record establishes, and I find, that the infor-
mation requested by the union was presumptively relevant.
More specifically, I find that the information requests set forth
herein dated December 15, 2016, and January 25, 2016 were pre-
sumptively relevant because on their face both of the requests
sought information which directly related to the work performed
by KVE drivers, and it pertained to the pending grievance. It is
well settled that information concerning wages, hours, and other
terms and conditions of employment for unit employees is pre-
sumptively relevant to the union’s role as exclusive collective-
bargaining representative. See Southern California Gas Co., 344
NLRB 231, 235 (2005). Similarly, in NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967), the court held that an employer has a
duty to furnish information which is necessary to enable the Un-
ion to evaluate any grievances filed and thus such information is
presumptively relevant. The Board has specifically held that in-
formation regarding nonbargaining unit employees can be rele-
vant when necessary for enforcement of the CBA such as in this
case where the Union was seeking information regarding
whether after a layoff, nonbargaining unit employees were per-
forming work. See United Graphics, 281 NLRB 463 (1986),
Boeing, 364 NLRB No. 24 (2016).
Despite Respondent’s assertions that it in fact provided infor-
mation responsive to the requests, the information actually pro-
vided i.e., copies of the parties collective-bargaining agreements
and the record of trust fund contributions, simply were not re-
sponsive to the specific union requests.
I therefore find that Respondent violated Section 8(a)(5) and
(1) of the Act when it failed or refused to provide presumptively
relevant information to the Union.
5 Respondent argued that the application of Board law to the submis-
sion of the employee declarations violated the Constitutional guarantees
of its right to petition the government. I decline to rule upon the
3. Polling
The Board in Struksnes Construction Co., 165 NLRB 1062
(1967), held that absent unusual circumstances, the polling of
employees by an employer will be violative of Section 8(a)(1) of
the Act unless the following safeguards are observed:
(1) (The purpose of the poll is to determine the truth of a un-
ion’s claim of majority,
(2) this purpose is communicated to the employees,
(3) assurances against reprisal are given,
(4) the employees are polled by secret ballot, and
(5) the employer has not engaged in unfair labor practices or
otherwise created a coercive atmosphere.
In Texas Petrochemicals Corp., 296 NLRB 1057, 1063
(1989), and Grenada Stamping & Assembly, Inc., 351 NLRB
1152 (2007), the Board held that where there is an incumbent
union, advance notice of the poll is a required element.
The declarations drafted by Respondent’s counsel did not in-
clude any assurances against reprisal, the declarations were not
done “by secret ballot,” and the prior petition submitted on com-
pany letterhead arguably created a coercive atmosphere. The
facts of this case establish a process that simply did not meet all
of the Struksnes safeguards and the union did not receive the re-
quired notice before the poll was conducted. I therefore find that
Respondent violated Section 8(a)(1).5
4. Unilateral changes
Unilateral changes made to employee’s wages, hours, work-
ing conditions, or other mandatory topics of bargaining consti-
tute a per se violation of Section 8(a)(5). NLRB v. Katz, 369 U.S.
736 (1962); Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198
(1991). If an employer wishes to make changes regarding a man-
datory subject of bargaining it must first provide the union with
notice and an opportunity to bargain regarding any of the pro-
posed changes. Anheuser-Busch, Inc., 351 NLRB 644 (2007).
It is well established that fringe contributions as well as union
security issues are mandatory subjects of bargaining and there-
fore Respondent was required to bargain over any changes that
it wished to make regarding these matters. Pacific Coast Assn’n
of Pulp Mfrs. v. NLRB, 304 F.2d 760 (9th Cir. 1962). There is
no dispute that under the terms of the CBA, KVE was obligated
to make trust fund payments for each bargaining unit employee
and cease dues deductions only in conformance with the CBA
and its limited periods of revocation. Nevertheless, KVE unilat-
erally stopped making trust fund payments and stopped making
dues deductions for Eric Medeiros, Rysan Sakamoto, Alan Jef-
feries, Russell Fernandes, James Kanei, and Carlito Pigao with-
out notifying the union and/or giving it an opportunity to bargain
over these changes. I therefore find that Respondent’s actions
violate Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, The Operating Engineers Local Union No. 3,
constitutionality of the application of the Act. See Oestereich v. Selective
Service System Local Board No.11, Cheyenne, Wyoming, 393 U.S. 233
(1968).
KAUAI VETERANS EXPRESS CO. 11
is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Union has been the exclusive representative for the
purposes of collective bargaining of the employees in the follow-
ing bargaining unit pursuant to 9(a) of the Act:
All Truck Drivers, Tractor Trailer Drivers, Tandem Dump
Truck Drivers, Freight Truck Drivers, and Mechanics em-
ployed by the Employer at its Lihue, Kauai facility.
4. By refusing to bargain with the Union as the exclusive rep-
resentative for the purposes of collective bargaining of the bar-
gaining unit employees the Respondent violated Section 8(a)(5)
and (1) of the Act.
5. By withdrawing recognition from the Union on July 1,
2017, the Respondent violated Section 8(a)(5) and (1) of the Act.
6. By failing to provide the Union with information that was
presumptively relevant, on December 15, 2016, and January 25,
2017, the Respondent violated Section 8(a)(5) and (1) of the Act.
7. By unilaterally ceasing dues deductions, the Respondent
violated Section 8(a)(5) and (1) of the Act.
8. By unilaterally ceasing Union Trust fund payments, the
Respondent violated Section 8(a)(5) and (1) of the Act.
9. By unlawfully polling employees, the Respondent violated
Section 8(a)(1) of the Act.
10. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found Respondent has engaged in certain unfair labor
practices, I find Respondent must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act:
(a) Respondent will be ordered to recognize and bargain in
good faith with the Union as the exclusive bargaining representa-
tive of the unit. Further, in the event that Respondent changed
the units terms and conditions of employment following its with-
drawal of recognition from the Union, upon the Union’s request
rescind such changes and restore the status quo ante and make
whole the unit employees for losses in earnings and other bene-
fits which they may have suffered as a result of such changes.
(b) Respondent shall promptly provide the Union with the in-
formation requested on December 15, 2016, and January 25,
2017.
(c) Having found the Company unlawfully ceased making
validly authorized deductions of union dues and fees, and remit-
ting the dues and fees to the Union, I recommend the Company
be ordered to promptly submit to the Union an amount equal to
the full union dues and Trust Fund fees for the unit employees
from July 1, 2017, until the Board’s Decision and Order issues,
or, at such time as valid revocations are submitted by the em-
ployee/members. The amount due the Union shall be computed
in accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 501 (6th Cir. 1971), with interest as pre-
scribed in New Horizons, 283 NLRB 1171 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
NLRB 6 (2010). No portion of the amount may be deducted
from the employees/members’ wages as the amount owed the
Union results directly from the Company’s violations of the Act.
(d) Respondent shall schedule a meeting during work hours
with its employees and in the presence of a Board Agent read the
attached notice to employees in English and the native Hawaiian
language spoken by employees. In the alternative, the Respond-
ent shall arrange for a Board agent to read the notice in English
and the native Hawaiian language spoken by employees during
work hours in the presence of Respondent’s supervisors.
(e) I also recommend, the Company be ordered, within 14
days after service by the Region, to post an appropriate “Notice
to Employees” in order that employees may be apprised of their
rights under the Act and the Company’s obligation to remedy its
unfair labor practices.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Kauai Veterans Express Co., Lihue Kauai,
Hawaii, its officers, agents, successors, and assigns, shall
1. Cease and desist from engaging in the following conduct
(a) Failing and refusing to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative for the
following bargaining unit of its employees:
All Truck Drivers, Tractor Trailer Drivers, Tandem Dump
Truck Drivers, Freight Truck Drivers, and Mechanics em-
ployed by the Employer at its Lihue, Kauai facility.
(b) Interrogating employees about their union activity or sup-
port, including interrogating employees in a manner that im-
pliedly solicits their rejection of the Union and/or impliedly re-
veals surveillance of the union activity of other employees.
(c) Withdrawing recognition of the Union as the exclusive
bargaining representative of bargaining unit employees in the ab-
sence of objective evidence that the Union has actually lost the
support of a majority of bargaining unit employees.
(d) Failing to provide the Union with information that was
presumptively relevant, on December 15, 2016, and January 25,
2017.
(e) Unilaterally stopping dues deductions.
(f) Unilaterally stopping Union Trust fund payments.
(g) Unlawfully polling employees.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act.
(a) Recognize the Union as the exclusive collective-bargain-
ing representative of the bargaining unit employees described
above.
(b) Upon request of the Union, bargain with the Union as the
exclusive bargaining representative of unit employees about
terms and conditions of employment. Further, in the event that
Respondent changed the units terms and conditions of
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
employment following its withdrawal of recognition from the
Union, upon the Union’s request rescind such changes and re-
store the status quo ante and make whole the unit employees for
losses in earnings and other benefits which they may have suf-
fered as a result of such changes.
(c) Honor the validly authorized deductions filed with it for
union dues and Trust Fund fees, as required pursuant to the par-
ties’ collective-bargaining agreement and remit to the union the
dues it should have deducted as well as Trust Fund fees, with
interest, as outlined in the remedy section of this decision.
(d) Promptly provide the Union will all the information re-
quested on December 15, 2016, and January 25, 2017.
(e) Preserve and, upon request, make available to the Board
or its agents for examination and copying, all records necessary
to analyze the amount due under the terms of this Order
(f) Within 14 days after service by the Region, post at its fa-
cility in Lihue Kauai, Hawaii, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided by
the Regional Director for Region 20, after being signed by the
Respondent’s authorized representative, shall be posted by Re-
spondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings. The Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at that facility at any time since February 17,
2017.
(g) Within 21 days after service by the Region, file with the
Regional Director of Region 20 a sworn certificate of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply with the provision
of this Order.
Dated, Washington, D.C. April 27, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
Operating Engineers Local Union No. 3 is the employee’s rep-
resentative in dealing with us regarding wages, hours, or other
working conditions of employees in the following unit:
All Truck Drivers, Tractor Trailer Drivers, Tandem Dump
Truck Drivers, Freight Truck Drivers, and Mechanics em-
ployed by the Employer at its Lihue, Kauai facility.
WE WILL NOT withdraw recognition from the Union or refuse
to recognize and bargain with the Union as your bargaining rep-
resentative.
WE WILL NOT fail to provide the Union information it re-
quested on December 15, 2016, and January 25, 2017.
WE WILL NOT poll employees without complying with the
Board’s requirements.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the Act.
WE WILL honor the validly authorized deductions for union
dues and fees, as required pursuant to the parties’ collective-bar-
gaining agreement and remit to the Union the dues we should
have deducted, with interest.
WE WILL provide the Union information it requested on De-
cember 15, 2016, and January 25, 2017.
WE WILL, on request, bargain with the Union as your repre-
sentative.
KAUAIVETERANS EXPRESS CO.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20-CA-193339 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1099
14th Street, N.W., Washington, D.C. 20570, or by calling (202)
273-1940.