Endo Painting Service Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 22, 2013

20-CA-080565 (N.L.R.B. Feb. 22, 2013)

JD(SF)–10–13
Oahu, HI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
ENDO PAINTING SERVICE, INC.

and Case 20–CA–080565
INTERNATIONAL UNION OF PAINTERS
AND ALLLIED TRADES, PAINTERS
LOCAL UNION 1791
Dale K. Yashiki, Esq. and Scott Edward Hovey, Jr.,
Esq., Honolulu, Hawaii, for the General Counsel
Kristi L. Arakaki, Esq. and Cid H. Inouye, Esq.,
O’Connor Playdon & Guben LLP, Honolulu,
Hawaii, for the Respondent
Rebecca L. Covert, Esq. and Davina W. Lam, Esq.,
Takahashi & Covert, Honolulu, Hawaii, for the Union
DECISION
Statement of the Case
GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice a hearing in this
matter was held before me in Honolulu, Hawaii on October 16 and 17, 2012. The initial charge
was filed by International Union of Painters and Allied Trades, Painters Local Union 1791 (the
Union) on May 7, 2012, and amended charges were filed by the Union thereafter. On July 31,
2012 the Regional Director for Region 20 of the National Labor Relations Board (the Board)
issued a complaint and notice of hearing alleging violations by Endo Painting Service, Inc. (the
Respondent) of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended (the
Act). The Respondent, in its various answers to the complaint, denies that it has violated the Act
as alleged.
The parties were afforded a full opportunity to be heard, to call, examine, and cross-
examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs
have been received from Counsel for the Acting General Counsel (General Counsel), counsel
for the Respondent, and counsel for the Union. Upon the entire record, and based upon my
observation of the witnesses and consideration of the briefs submitted, I make the following:
JD(SF)–10–13
2
Findings of Fact5
I. Jurisdiction
The Respondent, Endo Painting Service, Inc., a Hawaii corporation with an office and
place of business in Wailuku and Waipahu, Hawaii, is engaged in providing painting services on10
the islands of Maui and Oahu. In the course and conduct of its business operations the
Respondent annually purchases and receives goods valued in excess of $50,000 at its Hawaii
facilities directly from points outside the State of Hawaii and from other enterprises located
within the State of Hawaii, each of which other enterprises receives such goods directly from
points outside the State of Hawaii. It is admitted and I find that the Respondent is, and at all 15
material times has been, an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
II. The Labor Organization Involved
20
It is admitted, and I find, that the Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the Act,
III. Alleged Unfair Labor Practices
25
A. Issues
The principal issue in this proceeding is whether the collective-bargaining agreement
between the parties precludes class action grievances by the Union on behalf of all employees
collectively.30
B. Facts and Analysis
Since the 1960s the Respondent has been a signatory party to a succession of
collective-bargaining agreements between the Painting and Decorating Contractors Association 35
of Hawaii and the Union. The collective-bargaining agreement in existence at the time of the
hearing extended from February 1, 2008 to January 31, 2013. About 40 contractors, including
the Respondent, are signatory to this agreement. The agreement contains the identical
grievance procedure that has been in the contract for at least the past 10 years, as follows:
40
Section 17. Grievance Procedure
All grievances or disputes involving the application, interpretation, or alleged
violation of this Agreement shall be handled in the following manner:
45
Step #1. A written and signed complaint must be presented to the Union within 7
working days from the date the alleged grievance occurred.
Step #2. The Union Representative and the Employer or his/her representative
shall attempt to adjust the grievance or dispute promptly.50
Step #3. If the grievance or dispute is not satisfactorily adjusted at Step #2 within
2 working days after being submitted, it shall be referred to the Joint Industry
Committee…
JD(SF)–10–13
3
5
Step #4. If the Joint Industry Committee cannot reach a decision by a majority
vote within 30 days after the grievance or dispute is first submitted to it, then the
grievance or dispute shall be submitted to arbitration…
The agreement also contains an arbitration provision (Sec. 18. Arbitration) that specifies, inter 10
alia:
A. Within 15 days after the Joint Industry Committee reaches an impasse on a
grievance decision, the Association and the Union shall mutually agree upon an
arbitrator.15
* * *
F. No grievance subject to the grievance procedure or arbitration shall be
recognized unless considered in step #1 within 7 working days after the date of 20
the alleged violation.
The agreement establishes and defines the authority of the Joint Industry Committee (Sec. 19):
A. Composition.25
1. To better the relationship between the Union and the Employer, there is
hereby established a Joint Industry Committee…composed of 3 members
representing the Employers and appointed by the Association, and 3 members
representing the Union and appointed by the Union. Both sides may select 30
alternates who may vote when regular members are absent. Authorized actions
of the members of the committee or their agents shall be in the name of the
committee.
* * *35
B. Scope and Authority. The authority of the members of the committee is
limited by the terms of this Agreement. The committee may determine questions
relating to the application of, interpretation of and alleged violations of this
Agreement. The committee shall not modify the terms of this Agreement.40
Mitchell Shimabukuro is the Union’s business representative. Since June 2010 he has
sole responsibility for filing grievances on behalf of the Union. By letter dated March 23, 2011 to
Greg Endo, Respondent’s president, Shimabukuro filed a “Class Action Grievance Regarding
Violations of Sections 9, 13, 14 and 15 of the Collective Bargaining Agreement with IUPAY 45
Local 1791” against the Respondent.1 The letter, inter alia, is as follows:
Pursuant to section 17 of the collective bargaining agreement the [Union] hereby
submits this class action grievance over the misapplication, misinterpretation,
and violations of the collective bargaining agreement by your company. 50

1
Insofar as the record shows, this is the first class action grievance Shimabukuro has brought against any employer.
The record does not show whether his predecessor brought class action grievances.
JD(SF)–10–13
4
We have received reports and complaints indicating that Endo Painting Service, 5
Inc’s payment of compensation is not in compliance with classifications and
wages…”
It is unlawful for a contractor to make payment of compensation in cash contrary
to the wages and classification …and to allow employees to smoke marijuana 10
and drink on state job sites.
We request you to cease and desist from the aforementioned violations of the
agreement, take appropriate corrective actions, make employees whole, and
afford other appropriate relief to all bargaining unit employees and the union. 15
(Emphasis supplied.)
On April 28, 2011 a hearing on the grievance was held before the Joint Industry
Committee. On April 29, 2011 the Joint Industry Committee, comprised of three employer
representatives and three union representatives, unanimously issued an award in favor of the 20
Union, as follows:
Based on the evidence presented at the hearing the Joint Industry
Committee has decided to uphold and to sustain the March 23, 2011
class grievance filed against Endo Painting Service, Inc. The Committee 25
finds that the Employer violated the collective bargaining agreement by
paying employees in cash without making proper deductions of payroll
and other taxes, and its failure to make appropriate payments for trust
fund contributions.2 In addition the Committee finds that Endo Painting
Services Inc. has failed to take appropriate safety measures according to 30
the drug policy in the collective bargaining agreement.
Accordingly, the employer is ordered (a) to cease and desist from making
cash payments to its bargaining unit employees without appropriate
deductions and payment of contributions to the trust funds for all hours of 35
work, (b) to produce the books and accounts of its payroll of bargaining
unit employees from January 1, 2010 to the present indicating all hours
worked for examination by an independent certified public accountant
who shall calculate the amount of back pay and contributions due and
owing to the trust funds under Section 19J, (c) to pay damages to 40
affected employees and to the trust funds as formulated by the certified
public accountant,(d) to pay cost and attorney’s fees for enforcement of
this order under Section 32 of the collective bargaining agreement, and
(e) review with its employees the drug policies under the collective
bargaining agreement and to report to the union of the safety measures it 45
has taken to comply with its drug and alcohol policies at all jobsites.
This decision is supported by a unanimous vote of the Joint Industry
Committee. It is final and binding upon the parties under Section 19G of
the collective bargaining agreement.350

2
Gregory Endo, Respondent’s president, testified in this proceeding that during the Joint Industry Committee hearing
on April 28, 2011 he acknowledged that the Respondent was making cash payments to employees on occasion.
3
As noted in the contract language, the arbitration process is applicable only to instances of impasse of the Joint
Industry Committee.
JD(SF)–10–13
5
5
The Respondent refused to comply with the award. On June 28, 2012, the Hawaii Circuit Court
entered an Order enforcing the award and order of the Joint Industry Committee. The Court’s
Order notes that, “Prior to and at the April 28, 2011 [Joint Industry Committee] hearing the
representatives of the Employer admitted that Employer had previously made cash payment to
its employees, and failed to pay wage and benefits as required by the collective bargaining 10
agreement.” The Court issued a subsequent confirming Judgment on July 16, 2012. The matter
is currently pending on the Respondent’s appeal before the Hawaii Court of Appeals.
On March 8, 2012, Shimabukuro filed another class action grievance (MS-12-001)
against the Respondent because of signed complaints by members and verbal complaints by 15
spouses of members regarding probable violations and continuing violations of the contract by
the Respondent.4 Attached to the grievance form Shimabukuro states his belief that the
Respondent has made unilateral changes to the existing terms of the collective-bargaining
agreement. A summary of the allegations is as follows: that “in recent past [the Respondent]
has been refusing to pay overtime on jobs and admitted on voice recordings to banking hours 20
for employees that worked over 40 hours” in violation of the contract; that it has changed
employees time sheets to reflect fewer working hours during the pay period than the employee
actually worked; that it has been paying cash to employees on the weekends; and that it has
required some employees to use their personal vehicle to transport workers and materials.
25
The Respondent’s attorney replied by letter dated March 14, 2012. The letter is
essentially an information request from the Respondent to the Union, requesting the names of
all employees affected by each alleged violation of the contract provisions, the date of each of
the alleged violations, the specific manner in which each of the individuals has been affected by
the Respondent’s alleged failure to abide by the contract, and the amounts they are allegedly 30
owed. The letter concludes, “It is Endo’s policy to comply with all the terms of the Agreement
and we believe Endo has done so.”
Shimabukuro replied by letter dated April 5, 2012, attaching a lengthy list of names of
current and former bargaining unit employees. He asserts that, pursuant to the prior 2011 class 35
action grievance, the Respondent has failed to comply with an award by the Joint Industry
Committee against the Respondent for certain identical violations dating back to January 1,
2010, that the Respondent has continued and is continuing to violate the same and other
provisions of the agreement, and that the current grievance is a continuation of the former
grievance.40
The Respondent’s attorney replied to the Union’s aforementioned April 5, 2012 letter by
again requesting the specific information the Respondent had requested in its earlier March 14,
2012 letter. In addition, the Respondent states:
45
Grievance No MS-12-001 and your letter of April 8, 2012 indicates that
the instant case is a “class grievance.” Please identify the provisions in
the Contract that authorizes a “class grievance” as we could not locate
any such provision.

4
Signed complaints, dated between February 21 and March 2, 2012, introduced into evidence, are from four
individuals. The employees complain about not receiving overtime on certain jobs, receiving cash, being required to
use their own equipment and trucks on jobs, having to bank hours for overtime work, not being given documentation
for periods of unemployment and Respondent’s unwillingness to sign unemployment papers, not receiving the correct
amount when being paid in cash, not being sent out on jobs after complaining about these matters, being ordered to
change time sheets, being fearful of losing their jobs if they complain.
JD(SF)–10–13
6
5
Shimabukuro replied by letter dated April 24, 2012 stating, inter alia, that he believed the
class grievance was authorized by various provisions of the contract, namely Section 3 (Union
Recognition), Section 17 Step #2 (Grievance Procedure), and Section 19H (Joint Industry
Committee).
10
In a separate letter, also dated April 24, 2012, Shimabukuro sent the Respondent a
lengthy 4-page request for information covering unit employees employed by the Respondent
“during any period from January 1, 2010 to the present” stating, “The information is needed to
properly investigate the class action grievance.”
15
The information requested includes the following: daily timesheets or cards; daily
reports; weekly reports; work logs; the names of dates of employees who were paid cash for
work and the amounts of such payments and other related details; the names of employees who
were requested to “bank” hours in excess of 40-hours-worked per week and to use the hours
banked as compensatory time off from work; the names of employees who were allowed to use 20
a company credit card to fill gas in their personal vehicles; and various additional related items
in connection with the aforementioned information.
The Respondent, by letter dated May 4, 2012, replied to both of the aforementioned
letters of the Union, again essentially reiterating what is contained in the Respondent’s prior 25
letters, and stating, inter alia,
Finally, your request for information dated April 24, 2012 is not appropriate. You
fail to cite any authority requiring Endo to provide the information you request.
Your request, coupled with your failure to provide any written complaints from 30
workers, further suggests that you do not have any facts or basis for
commencing the instant grievance as the requested information would be
unnecessary and/or already known by you, if you had valid written and signed
complaints from actual workers. As mentioned in our previous letter,
commencement of a grievance without any written and signed complaints from 35
workers, and attempting to create a case after-the-fact, is improper and Endo will
pursue appropriate remedies.
Shimabukuro replied by letter dated May 22, 2012, enclosing complaints from the four
employees who had submitted them to the Union prior to the initial filing of the class action 40
grievance. He also states that;
…class grievances are well recognized in labor relations. There is nothing in the
collective bargaining agreement which prohibits class grievances filed by the
union as the exclusive bargaining representative under the union recognition 45
clause and the grievance procedure section.
He also reiterates the Union’s request that the Respondent provide the requested information.
The Respondent replied by letter dated July 20, 2012, advising that it would be willing to 50
supply only some of the requested information pertaining only to the written complaints of the
four employees, attached to the Union’s aforementioned May 22, 2012 letter, and that much of
this information would be further limited to only a 7-day time period in accordance with the
Respondent’s understanding of the specific wording of Step # 1 of the grievance procedure
contained in the contract. 55
JD(SF)–10–13
7
5
As set forth above, Shimabukuro’s initial information request is dated April 24, 2012.
During the hearing Shimabukuro testified he needed the requested information to ascertain the
extent of the alleged violations in order to make the employees and the trust funds whole, and
explained in detail how the requested information, given the nature of the Respondent’s
business and the various forms the Respondent utilized for record keeping, would enable the 10
Union to determine whether such alleged contract violations had occurred and were continuing
to occur. The Respondent did not challenge the relevancy of the requested information; that is,
there was no showing by the Respondent, either through cross examination of Shimabukuro or
evidence proffered by the Respondent, that the requested information, if it existed, would not be
useful to the Union in order to assist it in determining the nature and extent of the alleged 15
contract violations.
In addition to the 2011 class action grievance discussed above, the Shimabukuro has filed other
class action grievances under the contract against the Respondent and other signatory contractors for
various contract violations. These grievances, however, either resulted in awards applicable only to a 20
specific individual or individuals, rather than a class of individuals, or, in one instance, involved an
award applicable to a group of similarly situated employees who were required to report to work earlier
than normal without pay in order to facilitate the employer’s daily job assignments. Although nominally
entitled class action grievances, these grievances are not particularly instructive relative to the issues
under consideration in the instant matter. 25
C. Analysis and Conclusions
A union’s right to file grievances, and an employer’s duty to furnish relevant information 30
to the union in furtherance of this right, is part of the collective-bargaining process encompassed
by Section 8(a)(5) of the Act. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). The standard for determining whether the information is relevant
to a grievance is a “liberal, discovery-type standard.” Acme Industrial, supra at 437. Absent a
union’s clear and unmistakable waiver of such a statutory right, an employer violates Section 35
8(a)(5) of the Act if it refuses to provide the requested information. Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983).
The complaint alleges that the Respondent’s failure to furnish the requested information,
and its delay in responding to the Union’s information request, is violative of Section 8(a)(1) and 40
(5) of the Act.
The General Counsel and Union maintain that since there is no language in the
agreement that specifically precludes a class action type of grievance, nor any contract
language that specifically precludes the Union from requesting grievance-related information 45
from the Respondent, there has been no clear and unmistakable waiver of the Union’s right to
this information. Moreover, the fact that the Joint Industrial Committee in 2011 recognized class
grievances and awarded a class-action type remedy, further shows that such grievances are not
precluded by the contract. Therefore the Respondent’s refusal to furnish the information is
clearly unlawful. 50
The Respondent maintains that the contract language itself does indeed establish such
a clear and unmistakable waiver. The Respondent argues that the grievance procedure is
employee-specific, and that the clear intent of the exclusive grievance procedure is to provide
for the prompt resolution of specific employees’ immediate (within 7 working days) grievances. 55
JD(SF)–10–13
8
Accordingly, class action grievances requesting remedial action over extended periods of time 5
on behalf of the entire bargaining unit are clearly precluded by such express contract language.
Further, as the Union has thus clearly and unmistakably waived its right to bring class action
grievances, it follows that the Union is not entitled to information in order to investigate such
grievances; accordingly, the Respondent is clearly not required to furnish the information—
encompassing voluminous and dated documents from 2010 to the present—which the Union 10
has requested. Finally, the Respondent maintains that as it was not at the time represented by
counsel, its participation in the 2011 Joint Industry Committee class action grievance hearing
and its failure to challenge the jurisdiction of the committee may not be relied upon as evidence
that the committee did not exceed its authority under the contract.
15
The Respondent’s foregoing interpretation of the grievance language, while not
implausible, is problematic in that it severely limits the Union in the exercise of statutory rights,
and it is unlikely that any union would be amenable to such restrictions. Neither the General
Counsel nor the Union has proffered an interpretation of the grievance language. However, by
filing the class action grievance it seems apparent that Shimabukuro has taken the position that 20
once a complaint, or series of complaints, have been submitted to the Union, and the Union has
reason to believe that the alleged contract violations are not unique to specific individuals but
are common to all bargaining unit employees, the Union may, at its discretion, bring the
grievance as a class action on behalf of all adversely affected employees. This, it seems, is an
eminently reasonable interpretation of the contract language in that it is expansive and 25
consistent with the Union’s statutory rights and obligations.
Accordingly, while the grievance language lends itself to varying interpretations, I find, in
agreement with the position of the General Counsel and Union, that nothing in the contract
constitutes a clear and unmistakable waiver of the Union’s right to bring class action grievances. 30
The General Counsel and Union, relying on Metropolitan Edison Co., supra, maintain that this is
the end of the matter and the Respondent’s refusal to furnish the requested information is
therefore unlawful. The Respondent maintains that in the event the contract language is not
deemed to be self-explanatory and is subject to interpretation, the matter must be submitted to
interim arbitration before the Board can determine the merits of the instant complaint. 35
The contract specifically provides that the Joint Industry Committee is the final arbiter of
the grievance or dispute except in instances of impasse. Absent impasse, there is no recourse
to arbitration. The contract scheme for the resolution of disputes provides that the Joint Industry
Committee may determine questions relating to the application of, interpretation of and alleged 40
violations of the agreement. Its determinations are final and binding on all parties to the
agreement. The class action nature of the 2011 grievance was or should have been clearly
apparent to the Respondent’s president, Greg Endo, who attended the hearing.5 There was no
objection from him that the committee was unauthorized to entertain such grievances.6 The
Respondent appears to take the position that because Greg Endo did not raise the issues at the 45
April 28, 2011 hearing, the committee considered the Respondent to be either implicitly
conceding the Union’s right to file class action grievances or otherwise simply overlooked and
failed to consider whether the contract permitted class action grievances or imposed time
limitations on grievance remedies. There is no record evidence to support this assumption. The

5
As noted above, the grievance letter is headed “Class Action Grievance.” The letter requests the following relief:
“…make employees whole, and afford other appropriate relief to all bargaining unit employees and the union.”
(Emphasis supplied.)
6
Greg Endo testified that at the time of the hearing he did not know what a class grievance was, that he was not
conversant with the contract, and that, as this was the first Joint Industry Committee hearing he had ever attended,
“…we pretty much got runned over because I wasn’t prepared for it.”
JD(SF)–10–13
9
Joint Industry Committee, comprised of “regular members,”7 is tasked with applying, interpreting 5
and enforcing the contract. It is reasonable to presume, absent any evidence to the contrary,
that its members are conversant with and knowledgeable regarding the contract as a whole,
including its grievance provisions, and that they endeavor to carry out their duties in accordance
with their understanding of the authority and responsibilities conferred on them by the contract.
10
The committee award, I find, validates the Union’s right under the contract to bring class
action grievances.8 Moreover, the committee award, I find, validates remedies commensurate
with the violation, as the committee imposed a remedy requiring, inter alia, the production of
records back to January 1, 2010, and payment of backpay and trust fund contributions from
January 1, 2010 to the present for all adversely affected bargaining unit employees. 9 As noted, 15
the Hawaii Circuit Court enforced this award. Accordingly I find, contrary to the Respondent’s
position, that interim arbitration of the contractual grievance provisions is neither warranted nor
feasible given the 2011 award of the Joint Industry Committee under the contractual scheme
established by the Contractors Association and the Union.
20
Square D Co., v. NLRB, 332 F.2d 360 (9th Cir. 1964), upon which the Respondent
relies, is distinguishable. In Square D the court did not simply rely on the contract language in
determining that the matter should be resolved through arbitration; rather it found that as a
result of the parties’ substantial bargaining history regarding the group incentive plan, and the
omission of the plan from the collective-bargaining agreement, the matter of whether the Union 25
had waived its right to file a grievance over and request information regarding the group
incentive plan was initially a matter for arbitration. Here there is no record evidence concerning
the negotiating history of the grievance procedure and, moreover, the 2011 decision of the Joint
Industry Committee is final, binding and decisive. As noted, absent impasse, the contractual
scheme provides no recourse to arbitration.30
The Respondent’s reliance on Society of Professional Engineering Employees in
Aerospace v. Spirit Aerosystems, 2012 WL 5995552 (D. Kansas, November 30, 2012) is
inapposite. In this summary judgment case the district court determined that certain employee-
specific contract language contained in the grievance procedure, coupled with other specific 35
affirmative contract language, warranted the finding that the union in effect had waived its right
to bring a particular class action matter—employee performance plans—to arbitration. In the
instant case there is no additional specific contract language bearing on the Union’s right to
bring a class action grievance; rather the Respondent relies solely on the aforementioned
grievance machinery language in the contract.40
The instant 2012 class action grievance, as Shimabukuro notes, is in part a continuation
of the 2011 grievance, and in addition includes other alleged contract violations. The Union has
requested an abundance of record information from the Respondent, covering many
employees10 and dating back to January 1, 2010, in order to enable the Union to investigate and 45

7
See Sec. 19 (A)(1) of the contract: “…there is hereby established a Joint Industry Committee…composed of 3
members representing the Employers and appointed by the Association, and 3 members representing the Union and
appointed by the Union. Both sides may select alternates who may vote when regular members are absent.”
8
The fact that the 2011 grievance is not identical with the instant 2012 grievance is therefore not a relevant
distinction.
9
After the Respondent became represented by counsel, apparently in 2012, there was no request for a rehearing
regarding either the Union’s right under the contract to bring class action grievances, or the extent of the remedy
permitted by the contract.
10
While the employee complement is not constant and may vary considerably throughout the contract term, it
appears the number of unit employees may vary from about 50 to 80 during any given period.
JD(SF)–10–13
10
present the grievance to the Joint Industry Committee. I find that the contract language, coupled 5
with the 2011 decision of the Joint Industry Committee, is dispositive of both matters. Thus, the
Respondent has failed to show by clear and unmistakable evidence that the Union waived its
right to file class action grievances, and has also failed to show by clear and unmistakable
evidence that the Union waived its right to pursue grievance remedies encompassing more than
a 7-day time period. Metropolitan Edison Co. v. NLRB, supra.10
Accordingly I find that the Union is entitled to obtain information from the Respondent in
furtherance of its grievance in accordance with well-established guidelines.
As noted above, the Union has requested an abundance of information. The 15
Respondent, in its brief, maintains that the Union’s request for information constitutes
harassment and is overbroad, unduly burdensome and in bad faith, and that some of the
requested information is confidential and proprietary. During the hearing Shimabukuro explained
in detail his understanding of the records routinely maintained by the Respondent, and the
Union’s reasons for believing that the requested records would enable the Union to investigate 20
the grievance and assist the Union in presenting its case to the Joint Industry Committee.11 The
Respondent had an opportunity during the hearing to show that the Union was either not entitled
to the information or that the information would not be probative of any issues relative to the
Union’s investigation and processing of the grievance.12 It did not do so. Nor did it show the
alleged confidential and proprietary nature of any information.25
The Respondent further maintains that its recordkeeping is rather haphazard and
disorganized, that it or its supervisors may not have retained and/or may be unable to locate
some of the records, and that its efforts spent in attempting to gather and produce the records
would therefore necessarily be expensive and time-consuming. While this may be the case, I 30
find the argument that the Respondent’s lax recordkeeping practices would place a significant
burden on it to search for and produce the records is not a valid reason for its failing and
refusing to make a good faith effort to do so.13
On the basis of the foregoing, I find that the Respondent has violated Section 8(a)(1) 35
and (5) of the Act as alleged by delaying and failing and refusing to furnish information
necessary for the Union to investigate and present its grievance to the Joint Industry
Committee.

11
I credit the testimony of Shimabukuro, who testified at length and appeared to be a forthright witness with a good
understanding of the Respondent’s operations relative to the unit employees. The Respondent has merely asserted
but has not demonstrated by any record evidence that Shimabukuro’s filling of the grievance or request for
information was designed to harass the Respondent or was otherwise not in good faith. The grievance was based on
the complaints of employees and others. The alleged contract violations are serious in nature, and their extent cannot
be determined without substantiating records. Moreover, Shimabukuro’s request for information dating back to
January 2010, is not arbitrary and without foundation, but rather is coextensive with the related 2011 award of the
Joint Industry Committee.
12
As noted, the standard for determining whether the information is relevant to a grievance is a “liberal, discovery-
type standard.” Acme Industrial, supra; Island Creek Coal Company, 292 NLRB 480, 487 (1989).
13
In the event the parties are unable to resolve differences regarding the production of records, such matters may be
relegated to the compliance stage of this proceeding.
JD(SF)–10–13
11
5
Conclusions of Law and Recommendations
1. The Respondent Endo Painting Service, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
10
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has violated and is violating Section 8(a)(5) and (1) of the Act as
alleged in the complaint and found herein.
15
The Remedy
Having found that the Respondent has violated and is violating Section 8(a)(5) and (1) of
the Act, I recommend that it be required to furnish the Union with the information the Union has
requested as specifically set out in paragraph 7 of the complaint and notice of hearing in this 20
matter, which information request is hereby incorporated by reference in this decision.
I shall also recommend that the Respondent be required to cease and desist from in any
other like or related manner interfering with, restraining, or coercing its employees in the
exercise of their rights under Section 7 of the Act. Finally, I shall recommend the posting of an 25
appropriate notice, attached hereto as “Appendix.”
ORDER14
The Respondent Endo Painting Service, Inc., its officers, agents, successors, and 30
assigns, shall:
1. Cease and desist from:
(a) Delaying and failing and refusing to furnish the Union with the information it 35
has requested in order to investigate the grievance it has filed and to
determine the extent of any alleged contract violations.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.40
2. Take the following affirmative action, which is necessary to effectuate the purposes
of the Act:
(a) Furnish the Union with the information it has requested as specifically set out 45
in paragraph 7 of the complaint and notice of hearing in this matter, which
information request has been incorporated by reference in this decision.
(b) Within 14 days after service by the Region, post at its various Hawaii
locations copies of the attached notice marked “Appendix.”15 Copies of the 50

14
If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.
JD(SF)–10–13
12
notice, on forms provided by the Regional Director for Region 20, after being duly 5
signed by Respondent’s representative, shall be posted immediately upon receipt
thereof, and shall remain posted by the Respondent for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by 10
any other material.
(c) Within 21 days after service by the Regional Office, 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 15
comply.
Dated: Washington, D.C. February 22, 2013
20
_______________________
Gerald A. Wacknov
Administrative Law Judge
25
30
35

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If this Order is enforced by a judgment of the United States Court of Appeals, the wording in the notice reading,
“Posted by Order of the National Labor Relations Board,” shall read, “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
The International Union of Painters and Allied Trades, Painters Local Union 1791 is the
collective-bargaining representative of our employees in the following described collective-
bargaining unit:
All employees…classified and performing work as foreperson, sub-foreperson,
journeyperson, and apprentices including but not limited to workers performing
work as painters, paper hangers, applicators or wall fabrics, abrasive blaster,
mold and fungi abatement/removal, texture coatings, floor coating, roof coatings,
wateproofing, asbestos removal, lead abatement, thermo stripers, caulking and
puttying specializers, spray painters, spray foam applicators, masonry and
concrete spall/patch repairers, drywall tapers, and taper trainees in the State of
Hawaii, or who are assigned to projects outside the State of Hawaii, but does not
cover office clerical employees, watchperson, or supervisors (except foreperson)
as defined in the National Labor Relations Act, as amended.
WE WILL NOT delay or fail and refuse to furnish the Union with the information it has requested
in order to investigate the class action grievance it has filed regarding alleged contract violations
from January 1, 2010 to the present.
WE WILL furnish the Union with the requested information.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
ENDO PAINTING SERVICE, INC.
___________________________________
(Employer)
Dated: _______________ By: ___________________________________________
(Representative) (Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the date of posting and
must not be altered, defaced, or covered with any other material. Any questions concerning this
notice or compliance with its provisions may be referred to the Board’s office, 300 Ala Moana
Boulevard, Room 7-245, Honolulu, HI 96850-4980, Phone 808-541-2814.