Harry Asato Painting, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 19, 2014

20-CA-124382 (N.L.R.B. Dec. 19, 2014)

JD(SF)–59–14
Honolulu, HI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HARRY ASATO PAINTING, INC.
and Cases 20–CA–124382
20–CA–125157
INTERNATIONAL UNION OF PAINTERS
AND ALLIED TRADES, PAINTERS
LOCAL UNION 1791
Jeff F. Beerman, Esq. and Scott E. Hovey, Esq.
for the General Counsel.
Bruce Mills, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Honolulu, Hawaii
on October 21–23, 2014. The International Union of Painters and Allied Trades, Painters Local
Union 1791(Charging Party, Union, or Local 1791) filed the charge in Case 20–CA–124382 on
March 13, 2014, and filed the charge in Case 20–CA–125157 on March 25, 2014. The General
Counsel issued the original complaint in Case 20–CA–124382 on May 30 and Harry Asato
Painting, Inc. (the Respondent, HAP, or the Company) filed an answer on June 13. The Union
filed the first amended charge in Case 20–CA–125157 on July 10, 2014, and filed the second
amended charge on July 21. On July 31, the General Counsel consolidated the above-referenced
cases and issued a consolidated complaint and notice of hearing. The Respondent filed an
answer on August 12, denying all material allegations and setting forth affirmative defenses.
The Respondent filed a motion for partial dismissal on September 18, 2014, and the
General Counsel filed an opposition on September 30, 2014. The Board issued an order denying
the Respondent’s motion on October 20, 2014.
JD(SF)–59–14
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent,1 I make the
following5
FINDINGS OF FACT
I. JURISDICTION10
The Respondent, a Hawaii corporation with an office and place of business in Honolulu,
Hawaii, provides painting services throughout the State of Hawaii. The Respondent admits, and
I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. I further find that the Union is a labor organization within the meaning of Section 15
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor 20
Relations Act (the Act) by: (1) interrogating employees as to whether they wanted to remain
Union members and/or continue to be represented by the Union for purposes of collective-
bargaining and other activities; and (2) coercing employees into resigning their Union
membership and resigning from the Union’s apprenticeship program. The complaint further
alleges that the Respondent violated Section 8(a)(5) and (1) by making unilateral changes to 25
employees’ wages and benefits. Finally, the complaint alleges the Respondent violated Section
8(a)(5) and (1) by repudiating the collective-bargaining agreement and relationship with the
Union. The Section 8(a)(5) allegations are premised on the General Counsel’s theory that the
Respondent and the Union were parties to a collective-bargaining agreement by virtue of their
conduct. 30
II. STATEMENT OF FACTS
A. The Respondent’s Operations
35
The Respondent’s primary work consists of application of painted pavement markings,
commonly referred to as “striping.” Harry Asato (Harry) started Harry Asato Painting in 1958,
and it has remained a family business. Glenn Asato (Glenn), Harry’s son, has worked at the
Company since 1976 and, has been its president for the last 10–15 years. Clifton Chung
(Chung)2 is HAP’s vice president and field supervisor. Harry’s wife, Deanne Asato (Deanne), is 40

1 The scheduled due date for the briefs was December 1, 2014. Because of problems with the Board’s
efile system, the deadline was extended to December 2.
The Respondent filed a motion to disregard certain allegations in the General Counsel’s trial brief on
December 15, 2014. The General Counsel filed a response on December 16, 2014. The motion is hereby
denied, as I find the General Counsel’s brief appropriately addresses the complaint allegations.
2 Chung was a member of the Union until roughly 2–3 years prior to the hearing. (Tr. 421.)
Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s exhibit;
JD(SF)–59–14
3
the office manager. Harry and Deanne’s son Wade Asato (Wade) works for HAP as an
estimator. Ashlyn Asato (Ashlyn), who is married to Wade, has processed payroll for the
Company since 2013. Glenn, Chung, Deanne, Wade, and Ashlyn serve on the Company’s board
of directors.3 As of the end of 2013, HAP had nine employees performing striping work. Four of
the stripers were classified as journeymen and five were classified as apprentices. Journeymen 5
have completed an apprenticeship training program and are paid at a higher level than
apprentices, who are still in training. All of the stripers at were Union members until the end of
2013. (GC Exhs. 11, 21; Tr. 229, 424, 448.)
B. The Union and Collective-Bargaining History10
The Painters and Decorating Contractors Association of Hawaii (PDCA or Association)
is an organization of employers engaged in the painting industry. One function of the
Association is to represent its employer-members in negotiating and administering collective
bargaining agreements with labor organizations. (Tr. 261.) The PDCA negotiates the 15
agreements, and employers can choose whether or not to become signatories to the agreements.4
The PDCA and the Union have had a series of successive collective-bargaining agreements
pursuant to Section 8(f) of the Act. At any given time, the Union and the PDCA have been
parties to only one collective-bargaining agreement.
20
The first collective-bargaining agreement between the Union and the Association went
into effect on December 1, 1963, with HAP among the signatory contractors. (Tr. 262; GC Exh.
29.) HAP also signed the collective-bargaining agreements effective for the periods January 1,
1973–December 31, 1975, and February 1, 1993–January 31, 1998. (GC Exhs. 30, 31.) HAP
did not sign the subsequent agreement, effective from February 1, 1998–Janaury 31, 2003, or any 25
collective-bargaining agreement thereafter. (GC Exhs. 4, 32, 33; Tr. 220.)5 Not coincidentally,
at some point in and around 1998, HAP ceased its membership in the PDCA. This occurred
because Harry did not get along with Etsuo Shigezawa, the executive director of the PDCA at the
time. (Tr. 374–375.)
30
The most recent collective-bargaining agreement runs from February 1, 2013, through
June 30, 2016. (GC Exh. 4.) Mitchell Shimabukuro (Shima),6 a painter by trade, has served as a
business representative for the Union since June 2011. He oversaw the contractors’ signing of
the most recent collective-bargaining agreement.
35

“GC Exh.” for General Counsel’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for the General Counsel’s
brief; and “R Br.” for the Respondents’ brief. Although I have included several citations to the record to
highlight particular testimony or exhibits, I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited, but rather are based my review and consideration of the entire
record.
3 Ashlyn is the board of directors’ recording secretary.
4 Employers can be signatories regardless of whether or not they are members of the PDCA. (Tr.
315.)
5 Chelsea Lee, the Union’s clerical supervisor, testified HAP stopped being a signatory in 1978, but it
is clear she was a decade off.
6 Shimabukuro is commonly referred to as “Shima”
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4
The wage and benefit rates pursuant to the collective-bargaining agreements are set forth
in “Exhibit A” of the successive collective-bargaining agreements. Each agreement contains a
union-security provision at Section 5(B), requiring each new employee to become a member of
the Union within 7 days of being hired, and to remain a member of the Union in good standing as
a condition of employment. (GC Exhs. 4, 29–33.)5
The District Council 50 (DC50) is the parent company of five local unions, including the
Local 1791. Chelsea Lee (Lee),7 clerical supervisor for the DC50, has been assigned to serve the
Union since 2005.8 In this capacity, she maintains a mailing list of contractors who have signed
a collective-bargaining agreement with the Union. (Tr. 221.) The Union notifies all contractors 10
on the list when new collective-bargaining agreements have been reached, and any other changes
that impact the contractors. For example, on January 11, 2008, the Union sent HAP and the
other painting contractors a cover letter along with a collective-bargaining agreement effective
February 8, 2008–January 31, 2013. On May 1, she sent correspondence to regarding the current
agreement to HAP and the other contractors. (GC Exhs. 15, 17–20; Tr. 193–194.) HAP was part 15
of the list when Lee began work for the DC50, and had not asked to be removed from the list.
(Tr. 233.)
The Union has not appointed stewards to any painting companies, including HAP. (Tr.
168, 329, 362.) Glenn did not recall the Union visiting HAP in the field, but Shima recalled one 20
visit to a jobsite on Maui. (Tr. 168; 338.)
C. Union Apprenticeship Program and Wages
For most of its jobs, HAP is a subcontractor for a general contractor who, in turn, has a 25
contract with the State of Hawaii, a county, or the federal government. (Tr. 92.) Generally,
contractors and subcontractors performing work under a public works construction contract must
pay at a rate no lower than the State-determined prevailing wage rate under Hawaii Rev. Stat. §
104–2 (2009) (Act 104). (GC Exh. 6.) With some notable exceptions described below, the rates
set forth in Exhibit A of the collective-bargaining agreement are very similar to prevailing wage 30
rate scales set by the State. One difference, however, is that apprentices can only be paid lower
wages than the prevailing wage rate for journeymen if they are in an apprenticeship program
approved by and registered with the State of Hawaii pursuant to Haw. Code R. § 22–12–
6(1)(1996). (GC Exhs. 4, 29–33; Tr. 311.)
35
For 2013, pursuant to Exhibit A to the collective-bargaining agreement, journeymen were
paid $34.10 per hour, and apprentices were paid based on the following formulations: 45 percent
of journeyman rate for completion of 0–1,000 hours in the apprenticeship program; 50 percent
for1,001–2,000 hours; 55 percent for 2,001–3,000 hours; 60 percent for 3,001–4,000 hours; 65
percent for 4,001–5,000 hours; 70 percent for 5,001–6,000 hours; 80 percent for 6,001–7,000 40
hours; and 90 percent for 7,001—8,000 hours. The foreman, Jebson Brown, was paid $34.60 in
accordance with Exhibit A. (GC Exhs. 3–4; Tr. 276–277; 281–287.)

7 Lee’s maiden surname was Nam, which appears on some of the documents in the record.
8 She was also assigned to the specialty workers at Pearl Harbor. Prior to being the clerical
supervisor, she was an administrative assistant for the DC50.
JD(SF)–59–14
5
The Union maintains a State-approved and registered apprenticeship program. Richard
Vieira (Vieira) is the director of training for the Union’s training program. In this capacity, he
oversees the apprenticeship and other training for the Union. (Tr. 370–371.) When a contractor
or subcontractor asks the Union’s apprenticeship program for proof that an apprentice is
enrolled, the Union submits a request to the State of Hawaii Workforce Development Division 5
for verification that the named employees are officially registered in the Union’s apprenticeship
program. (GC Exhs. 7–8, 34; Tr. 378–380.) The contractors and subcontractors must submit
payroll affidavits to prove that the apprentices who are not being paid the prevailing wage rate
for journeymen are in an approved apprenticeship program. (Tr. 114–115.) HAP used the
Union’s apprenticeship program up until January 1, 2014, and paid its employees, including10
apprentices, the wage rates set forth in Schedule A of the successive collective-bargaining
agreements. (GC Exhs. 3–5, 15, 21, 26; Tr. 94, 104, 119, 282–288.)9 HAP received notices of
any wage changes from the Union. (Tr. 433.)
A State of Hawaii law known as Act 17 (Haw. Rev. Stat. § 103–55.6 (2009)) provides a 15
5- percent bid discount on jobs greater than $250,000 to prime contractors that utilize apprentices
in approved apprenticeship programs. (Tr. 109.) To qualify for the discount, the contractor must
submit a State-created document entitled “Form 1, Certification of Bidder’s Participation in
Approved Apprenticeship Program under Act 17” along with the bid. On May 9, 2012, Cynthia
Yamauchi,10 who worked for HAP until her retirement at the end of 2012, sent a letter requesting 20
that the Union sign certifications in connection with two jobs for which HAP intended to submit
bids.11 HAP and the Union signed another Form 1 on October 30, 2013. (GC Exhs. 9, 10.) In
total, HAP has performed 4–6 jobs over the past 10 years pursuant to Act. 17, including the
Kaumualii Highway project that began in 2011.12 (Tr. 169, 447.)
25
D. Other Training
At Glenn’s request, the Union has had specialized training on layout of parking areas and
highways. (Tr. 384.) HAP employees also received first aid, CPR, hazardous awareness, and
OSHA 30 training from the Union. (Tr. 413–414.) 30
E. Lien Releases
In order to get paid under public works contracts, subcontractors provide the contractor
with a lien release from the Union certifying that the subcontractor is current on all trust fund 35
payments and other obligations to the Union. (Tr. 120–122, 209–210.) The lien release letter the
Union provides is a form letter which states that the contractor at issue has a collective-
bargaining agreement with the Union and has paid all member-employee wages and fringe

9 The parties stipulated to this fact. The record likewise reflects requests to the Union for verification
of sponsorship. On September 19, 2013, Ashlyn sent an email to Joy Nakayama, the DC50’s
administrative assistant, seeking certification that seven listed apprentices had completed the
apprenticeship program. (GC Exh. 7; Tr. 379.) She requested certification for another employee on
November 19, 2013. (GC Exh. 8.)
10 Yamauchi is Glenn’s sister.
11 HAP ultimately did not bid these jobs. (Tr. 118.)
12 Vieira recalled receiving about 3–4 requests for certification under Act 17 from HAP in his
capacity as the Union’s training director. (Tr. 377.)
JD(SF)–59–14
6
benefits consistent with the collective-bargaining agreement. The Union sent lien releases for
HAP upon request, averaging about every couple of months through the end of 2013. (GC Exh.
24; Tr. 188, 212–213, 224.)
F. Employee Referral Process and Sponsorship5
When Union workers are not employed, they are placed out on an out-of-work list
(OWL) the Union maintains. When contractors who are parties to the collective-bargaining
agreement need workers, they contact the Union for a referral from the OWL. The Union does
not refer workers to contractors who are not parties to a collective-bargaining agreement with the 10
Union.
Because striping is so specialized, the Union does not refer many stripers because they
generally do not find themselves out of work. (Tr. 213–215.) A contractor that wants to hire a
striper (or any other worker) directly, without using the Union’s referral process, must sponsor 15
the employee for Union membership before the employee can begin work. To this end, the
contractor sends in a sponsorship letter to the Union stating they want to hire a particular
individual. After the contractor requests sponsorship, the Union brings the workers in for a
written test, an agility test, and a drug test. The Union then sends the contractor referral slips for
each worker who passes the tests. The Union regularly undertook this practice for HAP through 20
the end of 2013.13 (Tr. 215–219, 274–275, 301; GC Exhs. 25, 26.)
G. Dues and Benefits
Through the end of 2013, HAP deducted union dues from employees’ paychecks and 25
remitted the dues to the Union each month. (Tr. 454–455.) HAP deducted three types of union
dues from its employees’ paychecks: checkoff dues, monthly membership dues, and job-
targeting dues. Checkoff dues, sometimes referred to as 5–percent dues, consisted of 5 percent
of an employee’s pay for up to 40 hours. Monthly membership dues were $26.80 per month for
each employee in 2013. Job-targeting dues are an assessment from members that goes into a 30
fund to help subsidize union bids for contracts against non-union painting companies. As of the
end of 2013, the job targeting assessment was $.85 per hour worked for journeyman, and a
percentage of this for apprentices. The Union notified HAP and other painting contractors when
assessments for the job-targeting program changed. HAP sent the Union 2 monthly checks: one
check for the monthly and check-off dues and another check for the job-targeting dues. Lee, on 35
the Union’s behalf, verified that the correct amount of dues was remitted each month for HAP
and the other painting contractors.14 (GC Exhs. 21–23; Tr. 203–206, 298.)
Another difference is between the prevailing wage rate and the rates set forth in the
collective-bargaining agreement is that the prevailing wage rate scale does not include employer 40
contributions toward certain union trust funds. (Tr. 163, 277–278.) Specifically, the State of
Hawaii’s prevailing wage rate and benefits scale does not provide for contributions to the labor
management cooperative fund, also referred to as the market recovery fund, but the collective-

13 The form for the referral slip changed, with the current form represented at pages 1–2 of GC Exh.
26.
14 The parties stipulated that HAP deducted and remitted union dues through the end of 2013.
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bargaining agreement does. Accordingly, contributions under the collective-bargaining
agreement were greater. For journeymen, the prevailing wage rate mandated by the State was
$34.10 per hour as of September 2013, with fringe benefits equivalent to $26.05 per hour. HAP
paid its journeymen $34.10 per hour with fringe benefits totaling $26.69 per hour. This was,
with one exception noted directly below, consistent with the collective-bargaining agreement. 5
(GC Exhs. 3, 6, 21; Tr. 278.)
From at least the 1970s until November 1984, HAP contributed on its employees’ behalf
to all of the Union’s trust funds. After November 1984, HAP stopped contributing to the trade
promotion and charity (TP& C) fund, which is used to finance the PDCA.15 HAP continued to 10
make contributions to the other funds through the end of 2013. (GC Exhs. 5, 27–28; Tr. 105,
169, 222, 240, 318, 364.) HAP stopped paying into the TP&C fund in November 1984 because
Harry did not get along with the director of the PDCA at the time, and he did not think he was
doing his job correctly. (Tr. 432.) Glenn believed that around this same time period, Harry and
John Montrone (Montrone), a Union official at the time, entered into an oral agreement that HAP 15
would pay Union wages and benefits, but would not have to pay into the TP&C fund.16 (Tr. 257,
430–431.) No other employers have been granted this exception, regardless of their membership
in the PDCA. (Tr. 257, 315–316.) No grievances or lawsuits were filed against HAP for failing
to pay into the TP&C fund. (Tr. 343, 438.)
20
Group Plan Administrators, Inc. (GPA) is the contract administrator for the Union’s
funds. Aileen Amurakami (Amurakami) is one of the founders of GPA and has worked there
since its inception in 1979, when the Union came on board as a client. Prior to 1979, Benefit
Plan Consultants, where Amurakami was previously employed, administered the Union’s trust
funds. (Tr. 239.) 25
HAP completed a monthly transmittal form and a consolidated report documenting its
contributions. The report, created by GPA, listed the names of the employees who performed
work for the corresponding month, as well as the dues the funds to which HAP was to contribute
on behalf of each employee. GPA provided the fund names and contribution rates based on 30
Exhibit A of the collective-bargaining agreement in effect at the time. HAP was required to fill
in, for each employee, the number of hours worked, gross pay, dues, annuity contribution,
vacation pay contribution, and the fund contributions. The total contributions due for each fund
consisted of the rate provided by GPA multiplied by the hours the employee worked. After HAP
completed and certified the report as accurate, it sent the completed report, along with a 35
remittance check, to First Hawaiian Bank, which, in turn, forwarded a copy to GPA. (GC Exh.
21; Tr. 204, 246–252, 255.)
Every 5 years, an independent auditor performed an audit of GPA’s records of the fund
contributions from contributing employers. With the exception of the TP&C fund, the audit 40
reports have shown that HAP’s fund contributions were consistent with Exhibit A of the
successive collective-bargaining agreements.17 (Tr. 253–254.) If a company was behind in a

15 A single additional payment into the TP&C fund was made in November 1987.
16 Glenn did not participate in the discussions between Harry and the Union relating to the oral
agreement. (Tr. 130.) Nobody with firsthand knowledge of the oral agreement testified.
17 The consolidated report for January 2012 shows HAP owed $437.70 for the TP&C fund. (GC Exh.
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8
payment, GPA notified the Union. Until the end of 2013, for all funds other than the TP&C,
HAP’s payments were made on a timely basis in amounts consistent with the rates set for the in
Exhibit A of the collective-bargaining agreements in effect at the time of the payments, including
any changes the Union made to the fund contribution rates. (GC Exhs. 3, 19, 21–22; Tr. 245,
291–296.) 5
H. Correspondence and Discussions in 2013
On May 1, 2013, at Shima’s direction, Lee sent HAP and the other painting contractors
an invitation to attend a May 9 dinner at the Honolulu Country Club to celebrate ratification of a 10
new collective-bargaining agreement. The invitation said the contractors would review and sign
the document at the dinner, and meet some of the new leaders of the DC50. (GC Exh. 18; Tr.
304.) This was the first time since 1998 the Union approached anyone from HAP about signing
a new collective-bargaining agreement. (Tr. 332–333.) Nobody from HAP attended the dinner.
(Tr. 231, 435.) 15
Also on May 1, Lee sent to the painting contractors a revised Exhibit A to the collective-
bargaining agreement, delineating wage and benefit rates. The changes reflected in the revised
rate schedule were decreases in the required contributions to the labor management cooperative
fund and the reserve benefit fund, and an increase in the required contribution to the training 20
fund. (GC Exh. 19.) HAP changed the rates it contributed toward these funds consistent with
the changes reflected in the revised Exhibit A. (Tr. 296.)
On May 10, Lee sent HAP and the other painting contractors an email stating that the
2013–2016 collective-bargaining agreement had been approved statewide. The email asked 25
those contractors who had not attended the dinner to come to the Union’s office or make
alternative arrangements to sign the collective-bargaining agreement. (GC Exh. 20.) That same
day, she sent a document called the “Lost Market Agreement” which described the work that
would be performed under the Union’s job-targeting program. (R Exh. 3; Tr. 444–446.)
30
On July 5, 2013, Shima sent an email to Glenn asking to meet and discuss any concerns
HAP had about signing the collective-bargaining agreement. (R. Exh. 2; Tr. 359.) He had not
realized that HAP had not signed the collective-bargaining agreement that had expired on
January 1, 2013, until March 2013. (Tr. 322, 328, 354–355.) Shima did not think the email was
a request to bargain; Glenn did. (Tr. 359, 365; 442.) 35
On July 9, 2013, Shima met with Glenn and Chung at HAP’s offices to discuss signing
the collective-bargaining agreement. According to Shima, Glenn expressed concerns with the
agreement, mentioned a gentleman’s agreement, and said he was in a “marriage that he cannot
get out of.” (Tr. 307.) Glenn recalled telling Shima that he wanted to discuss the contract and 40
how it would affect HAP. He also wanted the Union to provide training tailored to the stripers’
work. (Tr. 439–440.)
At some point, Glenn mentioned that GP Roadway solutions had been taking work away
from HAP, and if the Union could sign GP Roadway systems, HAP would sign the collective-45

21, p. 3.) The Union’s trust fund lawyers never contact HAP about this. (Tr. 366.)
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9
bargaining agreement. (Tr. 307–308.) Glenn recalled saying that he would consider signing the
agreement if GP Roadway Solutions signed because it would help level the playing field. (Tr.
453.)
On September 3, 2013, Shima had a lunch meeting with Wade and Chung at the Eagle 5
Café. Shima explained the Union’s job-targeting program, and explained how he thought it
would benefit HAP. He gave Chung a copy of the job-targeting program. (Tr. 497–500; GC
Exh. 36.)
On November 21, 2013, Shima and Glenn met again to discuss the job-targeting program. 10
Glenn requested to meet with the Union’s business manager, Ryden Valmoja. (Tr. 308–312.) On
December 19, Shima and Valmoja met with Glenn, Wade, and Chung. Glenn said that if HAP
could pick the charity for the trade promotion and charity fund, he would sign the collective-
bargaining agreement. Shima asked the PDCA director if HAP could determine where their
TP&C funds went, and was told this was not possible. He conveyed this to Glenn. (Tr. 313–15
315.)
Near the end of 2013, the Shima told Glenn that it would no longer certify HAP for Act
17 purposes unless they signed a contract. During the same time period, the Union threatened to
stop providing lien releases, cease permitting HAP to use its apprenticeship program, and cease 20
sending HAP Union employees, unless HAP signed the current collective-bargaining agreement.
(Tr. 171, 326, 438, 459–460.) No previous Union official had asked or required Glenn to sign
the collective-bargaining agreement. (Tr. 433–434, 437.)
During one of the meetings, Shima told Glenn that one of the reasons he was pursing 25
HAP to sign the collective-bargaining agreement was because it has a favored-nations clause.
Under this clause, if one contractor is given a deal or a benefit, all other contractors must be
offered the same deal or benefit. (Tr. 367–368.)
I. December Meeting with Employees and Union Resignation Letters30
All of the employees were called into a meeting on December 27, 2013.18 A form letter
of resignation from the Union drafted by HAP, dated December 27, was given to the employees
with the rest of their morning paperwork. (GC Exh. 11; Tr. 396.) HAP drafted all portions of the
resignation letter except the employee’s signature, printed name, and last 4 digits of the 35
employee’s social security number. It stated:
Date: 12/27/2013
International Union of Painters40
And Allied Trades
Painters Local Union 1791
2240 Young Street

18 Glenn thought the meeting was before December 27, but the employees testified it was on
December 27, and recalled the meeting took place the day they were given forms bearing the same date. I
therefore find the weight of the evidence shows the meeting occurred on December 27.
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10
Honolulu, Hawaii 96826
To Whom It May Concern:
This letter is to notify you that effective December 31, 2013, I am resigning from the 5
Painters Local Union 1791 and no longer want the Painters Local Union 1791 to
represent me.
Please have the Health and Pension Funds contact me about withdrawing from them.
10
Signature:
Printed Name:15
Last 4 digits of social security number:
(GC Exh. 11.) No employee requested that HAP draft the resignation letter. 20
Glenn told the employees what Shima said would occur if HAP did not sign the
collective-bargaining agreement, and conveyed that the Union had given them an ultimatum.
(Tr. 136, 461.) James Fortner, a Union member, worked for HAP from October 2012–July 2014.
He recalled being told that HAP decided not to re-sign with the Union, but it was the employees’ 25
choice whether or not to sign the letter resigning from the Union. They were given until
December 31 to decide. Fortner perceived that HAP had work for the employees who signed the
resignation. He felt as if he didn’t sign, he might have been “riding the bench”19 because not too
many companies do striping work. (Tr. Tr. 136–137.) He believed he would not continue
employment with HAP if he did not sign the letter, and he signed it because HAP had the work 30
he was trained to perform. (Tr. 140, 144.) Nobody at HAP threatened him if he did not sign it,
nor was he assured there would be no discipline. (Tr. 146, 148.)
Shawnson Batungbacal worked for HAP from January 2013–January 2014. On
December 27, 2013, he was not scheduled to work, but received a group text message to go to 35
the shop for a meeting. At the meeting, HAP managers told the employees they wanted to get
out of the Union. The employees were given the choice to “follow them or stay a member of the
union.” (Tr. 153–154.) Batungbacal believed that if he did not sign the form resigning from the
Union, he would not be able to work for HAP. He also thought he could not work for a
nonunion company in the same trade if he was a member of the Union, so he signed the letter. 40
He was not threatened, and believed it was his choice whether or not to sign the letter. (Tr. 155–
160.) He stopped working for HAP in January 2014 because they decided to get out of the
Union. (Tr. 153.)

19 Riding the bench is the same as being put on the OWL.
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11
Dionne Kaneshiro has worked as a striper for HAP for more than 7 years. She attended
the meeting, and recalled Glenn telling employees they had a choice as to whether or not they
wanted to stay with the Union. Kaneshiro resigned from the Union by signing the resignation
form. She did not feel coerced by Glenn, nor was she made promises in exchange for resigning.
She did not think she could work for HAP if she stayed with the Union if the Company decided 5
to go nonunion. (Tr. 395–397.)
Jebson Brown, a foreman, has worked for HAP since 2005. He recalled that Glenn gave
the employees the choice to decide whether to stay Union or go nonunion. He decided that he
wanted out of the Union. He signed the resignation form, and delivered his and the other 10
employees’ signed forms to the Union. (Tr. 410–413.)
Chung recalled that Glenn gave the employees the option of staying with the Union or
leaving it, and that if employees resigned from the Union, HAP would no longer recognize it.
Glenn did not express a preference regarding whether employees resigned from the Union. (Tr. 15
422.)
On December 27, 2013, all nine employees signed letters resigning from the Union,
effective December 31. Empoyee Jebson Brown delivered the resignations to the Union on
December 27. (GC Exh. 11; Tr. 123–124.) 20
On March 27, 2014, Glenn sent a letter to the Union stating that, effective December 31,
2013, a majority of the HAP employees resigned from the Union, and therefore HAP had
decided not to sign the current collective-bargaining agreement. He informed the Union that
because it did not represent a majority of the HAP employees, any contractual relationship 25
between HAP and the Union was repudiated. (GC Exh. 13; R Exh. 4; Tr. 448.) He based his
understanding of the Union’s loss of majority status on the resignation letters the employees
signed. (Tr. 450–451.)
J. Employee Affidavits30
On various dates between mid-April and early May, employees signed declarations,
prepared by HAP’s attorney, stating that their respective resignations were voluntary and not
coerced in any manner. The declarations were on Attorney Bruce Mills’ letterhead. (GC Exh.
12; Tr. 125–126, 142, 398.) 35
Each employee has a tray at work with his or her name on it. Kaneshiro found the
declaration in her tray. She did not ask anyone to prepare the document. When she received
declaration, her name was already typed on it. Nobody from HAP management discussed the
declaration with Kaneshiro, either before or after she signed it. (Tr. 405–407.)40
Fortner received the declaration on April 21, 2013. Glenn called him up to his office in
the morning and handed Fortner the declaration. Fortner’s name was pre-typed on the document.
Fortner looked at it and signed it. He and Glenn did not discuss the declaration. (Tr. 142–143.)
45
K. Wages and Benefits in 2014
JD(SF)–59–14
12
As of January 1, 2014, HAP has administered its own benefits and training. (Tr. 441,
487–493.) All apprentices were reclassified as Laborer II’s for prevailing wage rate purposes
until they enrolled in another State-certified apprenticeship program. (Tr. 134, 479.) For
purposes of doing payroll, Ashlyn got the prevailing wage rates from the State of Hawaii’s
website. (Tr. 478.) Fortner’s pay increased after January 1, 2014, because he went from an 5
apprentice to a Laborer II.20 (Tr. 146–147, 171.) Kaneshiro was close to completion of her
apprenticeship when she resigned from the Union. Her pay decreased by a dollar per hour. (Tr.
401–402.)
Also since the beginning of 2014, HAP has administered employee benefits pursuant to 10
an in-house general ledger account. The contribution amounts for the vacation fund, annuity
funds, and training funds remained the same. The health and welfare contribution went from
$6.35 per hour in 2013 to $6.85 per hour on January 1, 2014. HAP ceased paying into a pension
fund and labor management cooperative fund. (Tr. 487–492.)
15
At the time of the hearing, HAP’s apprentices were enrolled in the American Builders
and Contractors (ABC) certified apprenticeship program. (Tr. 170, 470.)
III. DECISION AND ANALYSIS
20
A. Adoption of Collective-Bargaining Agreement
The complaint asserts violations of Section 8(a)(5) and (1) of the Act. As a threshold
issue, I must determine whether the Respondent adopted, by virtue of its conduct, the most recent
collective-bargaining agreement, effective February 1, 2013–June 30, 2016. The General 25
Counsel’s burden to prove an employer has adopted a contract by its conduct is clear and
convincing evidence, a higher burden than the typically-applicable preponderant standard. See,
e.g., Brookville Health Care Center, 337 NLRB 1064, 1068 (2002); Resco Products, 331 NLRB
162, 165 (2000); Field Bridge Associates, 306 NLRB 322, 323 (1992), enfd. 982 F.2d 845 (2d
Cir. 1993); EG & G Florida, Inc., 279 NLRB 444, 453 (1986); All State Factors, 205 NLRB 30
1122, 1127 (1973).
It is well settled that adoption of a collective-bargaining agreement “is not dependent on
the reduction to writing of the intention to be bound,” but instead, “what is required is conduct
manifesting an intention to abide by the terms of the agreement.” E.S.P. Concrete Pumping, 35
Inc., 327 NLRB 711, 712 (1999), quoting NLRB v. Haberman Construction Co., 641 F.2d 351,
355–356 (5th Cir. 1981) (en banc) (footnotes and citations omitted), enfg. 236 NLRB 79 (1978);
The Palm Beach Pops, 343 NLRB No. 27 (2004); Cab Associates, 340 NLRB 1391 (2003).
The Board made clear in E.S.P. Concrete Pumping, supra at 711, that “the principles of 40
‘adoption by conduct’ of a collective-bargaining agreement, properly understood, are applicable
to agreements covered by Section 8(f) as well as Section 9(a).” The Board had previously stated,
in dicta, that it did not find the “adoption-by-conduct rule applicable in 8(f) cases.” Garman
Construction Co., 287 NLRB 88, 89 fn. 5 (1987). E.S.P. Concrete Pumping, however, expressly
overruled Garman. 327 NLRB at 712. The Board’s rationale stated, in relevant part:45

20 At the time of the hearing, Fortner worked for Apply Line as a union member. (Tr. 145.)
JD(SF)–59–14
13
Nothing in the text or legislative history of Section 8(f) requires the Board to depart from
its traditional principles of contract interpretation, including the adoption by conduct
doctrine, in 8(f) cases. Section 8(f) provides, in pertinent part, that it shall not be an unfair
labor practice for an employer and a union in the construction industry to “make an 5
agreement” without the union first having established its majority status pursuant to
Section 9 of the Act. Except for its mandate that such agreements be voluntary, there is
no indication that Congress intended to establish special rules for the “making” of such
agreements. See Scandia Stucco Co., 319 NLRB 850, 855 (1995) (agreement to engage in
multiemployer bargaining for an 8(f) contract need not be manifested by a written 10
agreement).
Id. at 713. E.S.P. Concrete Pumping has been cited with approval by the Board as well the Court
of Appeals for the Ninth Circuit. See, e.g., DST Insulation, Inc., 351 NLRB 19, 19–20 (2007); S.
Cal. Painters & Allied Trade Dist. Council No. 36 v. Best Interiors, 359 F.3d 1127, 1130 (9th Cir15
.2004).21
Whether a particular course of conduct manifests intent to follow the terms of a
collective-bargaining agreement is a question of fact. DST Insulation, supra; Arco Electric Co.
v. NLRB, 618 F.2d 698 (10th Cir. 1980). Where an employer engages in “substantial conduct 20
manifesting an intent to be bound” to the collective-bargaining agreement, the Board has found
adoption of it by the employer’s conduct. DST Insulation, supra at 20. There is no one factor
that is determinative in showing substantial conduct sufficient to bind an employer. Some factors
the Board considers are whether the employer pays employees’ wages (including wage
increases) in accordance with the collective-bargaining agreement, makes fringe benefit 25
contributions for employees in accordance with the collective-bargaining agreement, honors an
agreement’s union-security clause, deducts and remits union dues, uses the union to secure
employees, corresponds with the union in a manner consistent with the status of a union
contractor, holds itself out as a union contractor to obtain benefits, submits reporting forms
stating it is in compliance with the terms of the collective-bargaining agreement, permits the 30
union to appoint a shop steward, and consults with the union prior to working outside the
schedule set forth in the collective-bargaining agreement. See Best, supra; Haberman Constr.
Co., 641 F.2d at 356–357; Arco Elec. Co. v. NLRB, 618 F.2d 698, 699–700 (10th Cir.1980); Cab
Associates, supra.; Vin James Plastering Co., 226 NLRB 125 (1976); Marquis Elevator
Company, Inc., 217 NLRB 461, 465–466 (1975). The Board in E.S.P. Concrete Pumping also 35
considered relevant the fact that the employer acquiesced in a judgment against it for unpaid
contributions to a union pension fund.
Considering the totality of the evidence, I find there was substantial compliance sufficient
to bind HAP to the most recent collective-bargaining agreement.22 The evidence clearly and 40
convincingly shows that HAP paid wages in accordance with the collective-bargaining

21 Prior to Garman, the Board and many courts had held the adoption-by-conduct theory was
applicable to collective-bargaining agreements under both 9(a) and 8(f). See, e.g., N.L.R.B. v. Haberman
Const. Co. 641 F.2d 351 (5th Cir. 1981); Arco Elec. Co. v. NLRB, 618 F.2d 698, 699–700 (10th Cir.1980).
22 Because of statute of limitations set forth in Section 10(b) of the Act, I am basing my decision on
adherence to the most recent collective-bargaining agreement. I consider historical adherence to earlier
agreements as background evidence only.
JD(SF)–59–14
14
agreement. As set forth in the statement of facts, HAP paid its foreman, journeymen and
apprentices in accordance with the wage rates set forth in Exhibit A. The rate for journeymen
was $34.10 on both the prevailing wage rate scale and Exhibit A, so HAP adhered to both scales.
The prevailing wage rate scale from the State of Hawaii does not include a rate for foremen.
HAP paid Foreman Brown more than it paid its journeymen, in accordance with Exhibit A, and 5
sent correspondence to the Union notifying them that Brown’s wages and benefits should reflect
his status as a foreman. For apprentices, HAP likewise paid in accordance with the collective-
bargaining agreement, as its rates clearly correspond with the wage rate percentages for
apprentices set forth in Exhibit A.23 This was to take advantage of Act 104, which permitted
HAP to pay lower than the prevailing wage rate by virtue of its use of the Union’s apprenticeship 10
program.
Moreover, HAP changed the pay rate of its apprentices, effective January 1, 2014, to that
of Laborer II to conform to the State’s prevailing wage rate scale. Some apprentices saw their
pay increase while and others saw their pay decrease, depending on how far along they were in 15
their apprenticeship program, and, correspondingly, their previous pay rate as reflected by
Exhibit A.
In addition to paying wages equivalent to those specified in Exhibit A, HAP also paid
into all but one of the Union’s trust funds on behalf of its employees. HAP stopped paying into 20
the TP&C fund in 1984, while it was still a signatory to the collective-bargaining agreement in
effect at the time. Thus, its continued nonpayment into the TP&C fund was consistent with its
performance under the bulk of the last collective-bargaining agreement it signed, effective
February 1, 1993–January 31, 1998. The benefit contributions HAP made on its employees’
behalf were greater than the prevailing wage contributions required by the State of Hawaii, and 25
consistent with Exhibit A, with the exception of the TP&C fund. Moreover, HAP implemented
increases to the training fund, labor management cooperative fund, and the reserve benefit fund
in 2013, consistent with Exhibit A.
Payment of wages and benefits pursuant to a collective-bargaining agreement, however, 30
does not by itself establish intent to be bound by it. Cimato Brothers, Inc., 352 NLRB 797, 800–
801 (2008). In the instant case, there was much more than payment of wages and benefits. The
evidence shows that HAP enjoyed some benefits by complying with certain terms of the
collective-bargaining agreement. By paying its apprentices less than the prevailing wage rate for
journeymen in accordance with Exhibit A, the Respondent also availed itself of the benefits of 35
Act 104. In addition, HAP took advantage of the 5-percent bid discount under Act 17 by
certifying that its apprentices were enrolled in the Union’s apprenticeship program.
Moreover, through 2013, HAP routinely requested and obtained lien release letters from
the Union in order to secure payment from contractors. The letters explicitly stated that HAP 40
and the Union were parties to a collective-bargaining agreement, and that HAP had paid all
member-employee wages and fringe benefits consistent with the agreement. The Board has

23 At the hearing, the General Counsel provided evidence through a sampling of apprentices. I invited
the Respondent to point out any instances where the rate for an apprentice did not match the rate in
Exhibit A. No such discrepancy was forthcoming, and my independent review of the document shows the
employees were paid consistent with the rates set forth in Exhibit A.
JD(SF)–59–14
15
found that when an employer deliberately holds itself out as a union contractor and obtains the
benefits of a union contract, this is a “significant factor in determining whether there has been
adoption by conduct, because an employer could otherwise secure all the benefits of labor
stability without any corresponding obligations.” DST Insulation, supra at fn. 7. In addition, the
correspondence between HAP and the Union with regard to lien releases was conducted “in a 5
manner that was consistent with the status of a union contractor,” another relevant factor. Id. at
20.
The evidence further shows that HAP complied with the union-security provision in the
collective-bargaining agreement. As noted above, Article 5(B) of the successive collective-10
bargaining agreements required each new employee to become a member of the Union within 7
days of being hired, and to remain a member of the Union in good standing as a condition of
employment. In compliance with this provision, HAP secured its workforce by sponsoring its
employees for Union membership. Through 2013, HAP sent letters to the Union when they
wanted to hire a striper requesting that the Union sponsor the employee. The Union then 15
administered tests and sent referral slips to HAP for the workers who passed the tests and had
become Union members.
Another highly relevant factor is that the Respondent, through the end of 2013, deducted
union dues from employees’ paychecks and remitted the dues and job targeting assessments to 20
the Union each month, as detailed in the statement of facts. This, in conjunction with HAP’s
compliance with the union-security provision and payment of fringe benefit contributions,
undermines HAP’s argument that there was no agreement. As best described by the Court of
Appeals for the Seventh Circuit in U.S. Can Co. v. NLRB, 984 F.2d 864 (7th Cir. 1993), enfg.
305 NLRB 1127 (1992), for an employer to state there is no agreement while simultaneously 25
enforcing a union-security provision and deducting and remitting dues and other payments runs
afoul of the Labor Management Relations Act, 1947, § 302(a)(2), (c)(4), 29 U.S.C.A. §
186(a)(2), (c)(4) and National Labor Relations Act, § 8(a)(3), as amended, 29 U.S.C.A. §
158(a)(3):
30
Checkoffs of dues and other payments from the employer to the union, like the
enforcement of a union-security clause, depend on the existence of a real agreement with
the union. 29 U.S.C. § 186(c)(4); Bethlehem Steel Co., 136 N.L.R.B. 1500, 1502 (1962),
enforced in relevant part under the name Marine Workers v. NLRB, 320 F.2d 615, 619
(3d Cir.1963); Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d 1111, 1114 35
(D.C.Cir.1986). Cf. Litton [Litton Financial Printing Division v. NLRB, 501 U.S. 190
(1991)]. Otherwise the payment of money is a subvention barred by 29 U.S.C. §
186(a)(2), and the requirement to join the union (or pay dues to it) coerces employees in a
way forbidden by 29 U.S.C. § 158(a)(3). Having done things that are lawful only if a
collective bargaining agreement is in force, U.S. Can is in a pickle. For neither labor law 40
nor the common law of contracts permits one to riffle through terms, building a
“contract” out of the ones you like while discarding the rest.
[Emphasis in original.] See also DST Insulation, supra at 20 (“An obligation to pay dues is
permissible only during the existence of a collective-bargaining agreement containing a union-45
security provision.”)
JD(SF)–59–14
16
Though HAP never employed a shop steward, the evidence was unrefuted that the Union
did not utilize shop stewards at any of its painting companies.
“Nothing in the legislative history of Section 8(f) indicates that Congress intended
employers to obtain free the benefits of stable labor costs, labor peace, and the use of the union 5
hiring hall. Having had the music, he must pay the piper.” Jeff McNeff, Inc. v. Todd, 461 U.S.
260, 271 (1983). In the instant case, HAP availed itself of many of the benefits of a union
contract, and nonetheless claimed that there was no contract. Under Board law, HAP cannot
have it both ways. Based on the foregoing, I find the General Counsel has met its burden.
10
The Respondent asserts that I should apply Garman, supra, because the alleged oral
agreement Harry and Montrone negotiated was in 1998, and Garman was good law at the time.24
The precise timing of the alleged oral contract and its precise terms was never established,
however. In any event, for purposes of my decision, I am not evaluating performance under an
oral agreement established years ago; I am evaluating whether HAP’s conduct made it a party to 15
the most recent collective-bargaining agreement under the Board’s standards, as articulated
above.25
Moreover, the only evidence of record regarding the oral agreement addresses HAP being
excused from paying into the TP&C. The Respondent contends, without evidentiary support, 20
that this agreement encompassed much more. (R Br. 17–21.) These assertions hold no
evidentiary value, however. As noted above, HAP’s contributions to the TP&C fund stopped
while they were still a signatory to the collective-bargaining agreement in effect at the time. The
failure to pay into this fund in no way implicates an overall agreement that HAP could reap other
benefits of the collective-bargaining agreement without being bound by it. 25
The Respondent further argues that paragraphs 6(e)(f) and(g) should be dismissed
because they fall outside the requirements of Section 10(b) of the Act. These complaint
paragraphs state:
30
(e) About February 1, 1998, and at all material times thereafter, Respondent adopted by
conduct subsequent collective-bargaining agreements entered into by the Union and the
Association by, among other things, paying wages and making trust fund contributions in
accordance with subsequent collective-bargaining agreements, utilizing the Union's
hiring hall, and withholding and tendering Union dues deducted from employees' 35
paychecks.
(f) About February 1, 2013 through December 31, 2013, Respondent adopted, by the
conduct described in subparagraph 6(e), the collective-bargaining agreement entered into
by the Union and the Association, effective from February 1, 2013 through June 30, 2016 40

24 As previously noted, Garman’s statement that contract-by-conduct did not apply in the 8(f) context
was dicta, and the Board and courts had found contracts by conduct before Garman in the 8(f) context.
25 The Respondent requests that I dismiss the allegations in portions of paragraph 6 of the complaint.
(R Br. 24–30.) As discussed on the record and stipulated to by the General Counsel, the complaint does
not allege that anything in paragraph 6 constitutes a violation of the Act, and it only contains background
information. (Tr. 9–10.)
JD(SF)–59–14
17
(the Agreement), which encompasses the terms and conditions of employment of the
Unit.
(g) By adopting the collective-bargaining agreement described in subparagraph 6(f),
Respondent recognized the Union as the exclusive collective- bargaining representative 5
of the Unit without regard to whether the Union's majority status had ever been
established under Section 9(a) of the Act.
The Board rejected this argument when it denied the Respondent’s partial motion to
dismiss, and therefore so must I.26 Nonetheless, I will briefly address a case the Respondent 10
relies upon that was not argued to the Board in the motion to dismiss. Citing to A & L
Underground Inc., 302 NLRB 467, 469 (1991), the Respondent argues that the Union knew or
should have known in 1998 that HAP would not be a signatory, and therefore charges should
have been filed long ago. There is nothing unlawful about HAP deciding not to sign the
agreement, however, so it is unclear why charges should have been filed in 1998, absent 15
evidence that HAP had decided to totally refute it. The Board makes a distinction between
“simple failure to abide by the terms of a collective-bargaining agreement,” and “outright
repudiation of the agreement itself,” or “total repudiation.”27 Vallow Floor, Coverings, Inc, 335
NLRB 20 (2001), citing A & L Underground supra. There is no evidence to show the
Respondent repudiated the agreement in its entirety, and the evidence detailed above clearly 20
reflects otherwise. Accordingly, the Respondent’s timeliness argument based on Section 10(b)
fails.
B. Alleged Repudiation
25
Paragraphs 9 and 11 of the complaint alleged that by letter dated March 27, 2014, the
Respondent repudiated the February 1, 2013–June 30, 2016 collective-bargaining agreement and
its collective-bargaining relationship with the Union, in violation of 8(a)(5) and (1).
The Board defined the obligations of an employer who enters into an 8(f) agreement in30
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3rd Cir. 1988), cert. denied 488 U.S. 889 (1988). The Board in Dekwela held that
such agreements are enforceable under Section 8(a)(5) of the Act, and may not be unilaterally
repudiated during their term. See also, Gem Management Co., 339 NLRB 489, 501 (2003);
AEi2, LLC, 343 NLRB 433 (2004). An employer that has voluntarily adopted a contract, 35
therefore, is foreclosed under Deklewa from repudiating it during its term, even where the
contract is adopted through the employer’s conduct as opposed to a signed agreement. E.S.P.
Concrete Pumping, supra at 712 (1999). The only way for an employer to get out of the terms of

26 I note that the Respondent relied on Local Lodge 1424, Machinists v. NLRB, 362 US 411 (1960),
Lorance v. AT & T Technologies, Inc., 490 U.S. 900 (1989), and Ducane Heating Corp., 273 NLRB1389
(1985), in support of its argument. These cases were argued to the Board, which rejected the
Respondent’s motion to dismiss, and I therefore will not analyze them separately in this decision.
27 Some testimony at the hearing, referenced in the statement of facts, appeared to imply that the
Respondent intended to assert that HAP thought it was negotiating a new agreement in 2013. The
Respondent does not argue this in its brief, and to do so would not be fruitful. It is clear that at most what
Respondent sought from the Union was additional training, not bargaining for an initial labor agreement.
See 300 Exhibit Services & Events, Inc., 356 NLRB No. 66, slip op. at 8 (2010).
JD(SF)–59–14
18
an 8(f) agreement is if “the employees vote, in a Board-conducted election, to reject (decertify)
or change their bargaining representative.” Dekwela, supra at 1385.
I have found that HAP voluntarily adopted the collective-bargaining agreement. There
was no Board-conducted election decertifying the Union, and therefore the Respondent’s 5
repudiation of the collective-bargaining agreement prior to its expiration on June 30, 2016,
violated the Act. The Respondent’s argument that the Union had lost majority support, aside and
apart from whether that loss was the result of coercion, fails in light of established Board law.
Id., see also 300 Exhibit Services & Events, Inc., 356 NLRB No. 66, slip op. at 8 (2010).
Accordingly, I find the General Counsel has met its burden to prove the allegations in paragraphs 10
9 and 11 of the complaint.
C. Alleged Interrogation and Coercion
1. December 27, 201315
Complaint paragraph 7(a) and 10 allege that the Respondent interrogated employees at
the December 27, 2013, meeting about whether they wanted to remain union members and
coerced employees into resigning their union memberships and resigning from the Union's
apprenticeship program, in violation of Section 8(a)(1) of the Act.28 Under Section 8(a)(1), it is 20
an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7.” Rights guaranteed by Section 7 include the right
to engage in union activities and “concerted activities for the purpose . . . of mutual aid or
protection.”
25
Polling employees about their union sympathies can constitute a form of interrogation.
Vaughan Printers, 196 NLRB 161, 164 (1972). For the polling to be lawful, all of the
safeguards required under Struksnes Construction Co., 165 NLRB 1062 (1967), must be applied
as follows:
30
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 union'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 35
labor practices or otherwise created a coercive atmosphere.
Id. at 1063. See also Johnnie’s Poultry, 146 NLRB 770, 775 (1964); HTH Corp., 356 NLRB
No. 182, slip op. at 8 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012).
40

28 The Respondent argues that the General Counsel did not specify what section of the Act the
allegations in paragraph 7(a) violated. (R Br. 35.) The complaint clearly provides this information in
paragraph 10. The same holds true for similar arguments the Respondent makes about other sub-
paragraphs; Paragraphs 10 and 11 very plainly relate which violations of the Act are alleged to be violated
by the specified preceding paragraphs.
JD(SF)–59–14
19
Here, as in HTH Corp., HAP polled the employees concerning their desire to stay with
the Union after providing them with the Company's point of view, and implied threat of job loss.
Batungbacal and Fortner provided unrefuted testimony that, after recounting Shima’s statements
regarding what would occur if HAP did not sign the collective-bargaining agreement, HAP
management officials stated they were going to cut ties with the Union. I found their testimony 5
to be credible. Both testified with an open and forthright demeanor, did not embellish or
dramatize what occurred, and genuinely appeared to be truthful. Moreover, their testimony that
they felt they needed to resign their union membership to remain employed at HAP is inherently
more plausible if they were told, or led to believe, that HAP was not going to cut ties with the
Union. As Fortner stated, “It was our choice to either continue with them [HAP] or—by signing 10
the resignation paper—or you would just take your chances with the Union.” (Tr. 139.) It is
clear that Fortner did not sign the form out of a genuine desire to resign from the Union, since he
re-joined the Union to work at his present position as a union striper for another company.
Batungbacal likewise did not sign the form out of a desire to resign from the Union, as he
stopped working for HAP in January 2014 based on HAP’s decision to get out of the Union. In 15
addition, I credit Fortner and Batungbacal’s testimony because they have nothing to gain or lose
by being forthcoming and truthful. Both left HAP voluntarily to pursue other jobs. There was
nothing in either witness’ demeanor or in the evidence presented to indicate either of them
harbored a grudge against the Respondent
20
The evidence is also clear that employees were not provided with assurances against
reprisal. The poll was not taken to ascertain the truth of the Union’s claim of majority status, as
there is no evidence any such claim had been presented. The employers were not polled by
secret ballot. I further find that, although the employees who testified stated they were not
coerced, the atmosphere was inherently coercive. Every employee asked about his or her 25
perception about what would occur if they did not sign testified they believed they would be out
of work if they did not resign from the Union and HAP withdrew its recognition of the Union.
See Manhattan Eye, Ear & Throat Hospital, 280 NLRB 113, 115 (1986).
The employees testified that HAP managers never expressed a preference for whether the 30
employees decided to stay with the Union or resign, and stated they did not feel coerced. The
Respondent’s action of drafting the resignation letters for employees to sign, however, is a
glaringly clear an indication of HAP’s preference. Preparation of the letters also constitutes
assistance in facilitating the resignation. See Grondorf, Field, Black & Co. v. NLRB, 107 F.3d
882, 886 (D.C. Cir. 1997). Under these circumstances, and particularly considering the lack of 35
safeguards under Struksnes Construction Co., I find the General Counsel has proved the
allegations set forth in paragraphs 7(a) and 10.
The Respondent argues that the resignation letter and the meeting were protected by
Section 8(c) of the Act, which states in relevant part:40
The expressing of any views, argument, or opinion, or the dissemination thereof, whether
in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this Act [subchapter], if such expression
contains no threat of reprisal or force or promise of benefit.45
JD(SF)–59–14
20
The Board has held, however, through the caselaw cited above, that the expressions here crossed
the line and constituted unlawful threats and coercion, as alleged.29
Based on the foregoing, I find the General Counsel met its burden to prove the allegations
set forth in Paragraphs 7(a) and 10. 5
2. April and May 2014
Paragraph 7(b) and 10 allege that in April and May 2014, the Respondent interrogated its 10
employees about whether they wanted to remain Union members and/or continue to be
represented by the Union for the purposes of collective bargaining and other activities.
The analysis set forth directly above for the December 27 letters of resignation applies
here. The purpose of the declaration was not to determine the truth of the Union’s claim of 15
majority status. The Union had not made such a claim, and HAP had already sent the Union a
letter repudiating the 2013–2016 collective-bargaining agreement. The declaration was drafted
by Attorney Mills and disseminated by HAP on the heels of the Union’s March 2013 charges,
clearly in anticipation of litigation. The purpose of the declaration was not conveyed to the
employees and no assurances against reprisals were given. In light of my finding that the 20
December 27 meeting and resignation letters were coercive, I find the declarations were a
continuation of the coercive atmosphere designed to encourage employee disaffection with the
Union.
I have addressed the Respondent’s assertion regarding the adequacy of the pleading in 25
footnote 27 above. The Respondent additionally asserts that paragraph 7 should be dismissed
because, in the complaint, Chung is the HAP manager alleged to have interrogated the
employees. The Respondent is correct that there is no evidence regarding Chung’s involvement.
The specific dates the employees signed the declarations, however, were listed in the complaint,
and the declarations were in the Respondent’s control. Under these circumstances, I find the 30
pleading was sufficient. In any event, the matter was fully litigated. See Pergament United
Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); HiTech Cable Corp., 318
NLRB 280, 280 (1995), enfd. in part 128 F.3d 271 (5th Cir. 1997).
Based on the foregoing, I find the General Counsel met its burden to prove the allegations 35
set forth in Paragraphs 7(b) and 10.
D. Alleged Changes to Compensation
Complaint paragraphs 8 and 11 allege that the Respondent violated Section 8(a)(5) and 40
(1) of the act when, on or around January 1, 2014, the Respondent changed unit employees'
compensation by ceasing adherence to Exhibit A of the collective-bargaining agreement and
changing contributions to various specified funds.

29 The General Counsel cites to some other Board cases which are also persuasive. (GC Br. 49–50.)
JD(SF)–59–14
21
Well-settled law provides that an employer may not change the terms and conditions of
employment of represented employees without providing their representative with prior notice
and an opportunity to bargain over such changes. See NLRB v. Katz, 369 U.S. 736, 747 (1962).
Changes to wages are a mandatory subject of bargaining. The Board has further held that 5
“[c]hanges to a payment system involve changes to wages.” Pepsi-Cola Bottling Co. of
Fayetteville, Inc., 330 NLRB 900, 903 (2000), enfd. in relevant part 24 Fed. Appx. 104 (4th Cir.
2001). Here, the evidence shows that the rate of pay for apprentices changed on January 1, 2014,
when the apprentices were classified and paid at the rate of Laborer II from State’s prevailing
wage rate schedule. In addition, the Respondent stopped paying into the Union’s vacation, 10
health and welfare, annuity, labor management cooperation, training, and reserve benefit funds
and replaced them with funds it administered in-house. As detailed in the statement of facts,
some of the fund amounts stayed the same, some changed, and some funds ceased to exist.
Regardless, because changes to the payment system are a mandatory subject of bargaining, the
unilateral changes HAP made in 2014 violated the Act, as alleged.30 15
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.20
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By interrogating its employees about whether they wanted to remain Union
members and coercing employees into resigning their Union memberships and resigning from 25
the Union's apprenticeship program the Respondent has violated Section 8(a)(1) of the Act.
4. By repudiating the February 1, 2013–June 30, 2016 collective-bargaining
agreement and its collective-bargaining relationship with the Union, and by making changes to
employees’ compensation, the Respondent has violated Section 8(a)(5) and (1) of the Act. 30
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 35
the policies of the Act.
Having interrogated employees whether they wanted to remain Union members and
coerced employees into resigning from their Union memberships and resigning from the Union’s
apprenticeship program, the Respondent will be ordered to cease and desist from these actions.40
Having unlawfully repudiated the February 1, 2013–June 30, 2016 collective-bargaining
agreement and its collective-bargaining relationship with the Union, the Respondent will be

30 No specific testimony was elicited regarding the transportation and subsistence allowance fund.
Because it is clear HAP stopped paying into all of the Union funds, it follows that either the payment
system changed or payments cease, either of which is a unilateral change.
JD(SF)–59–14
22
ordered to resume its collective-bargaining relationship with the Union and observe the
collective-bargaining agreement as it did up to and including December 31, 2013.
With regard to employee pay, restoration to the status quo ante is presumptively
appropriate to remedy unlawful unilateral changes. Southwest Forest Industries, 278 NLRB 228–5
228 (1986), enfd. 841 F.2d 270 (9th Cir. 1988). Accordingly, the Respondent will be ordered to
restore the employees’ pay and Union trust fund contributions and to make employees whole for
any losses they incurred as the result of the unilateral changes. Any backpay owed to employees
shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded 10
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Respondent
shall file a report with the Social Security Administration allocating backpay to the appropriate
calendar quarters. Respondent shall also compensate the discriminatees for the adverse tax
consequences, if any, of receiving one or more lump-sum backpay awards covering periods
longer than 1 year. Latino Express, Inc., 359 NLRB No. 44 (2012).15
I will order that the employer post a notice in the usual manner, including electronically
to the extent mandated in J. Picini Flooring, 356 NLRB No. 9, slip op. at 5–6 (2010). Also in
accordance with that decision, the question as to whether a particular type of electronic notice is
appropriate should be resolved at the compliance stage. Id., slip op. at p. 3. See, e.g., Teamsters 20
Local 25, 358 NLRB No. 15 (2012).
The General Counsel has requested the special remedy of requiring Glenn Asato to read
the notice to employees in the presence of a Board agent. The Board has required this remedy
where an employer's misconduct has been “sufficiently serious and widespread that reading of 25
the notice will be necessary to enable employees to exercise their Section 7 rights free of
coercion.” Jason Lopez' Planet Earth Landscape, Inc., 358 NLRB No. 46, slip op. at 1 (2012);
See also AC Specialists. Inc., 359 NLRB No. 159, slip op. at 4 (2013). Though I have found
numerous violations, I do not find they rise to the level of severity to warrant this remedy.
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended31
ORDER
35
The Respondent, Harry Asato Painting, Inc., Honolulu, Hawaii, its officers, agents,
successors, and assigns, shall
1. Cease and desist from interrogating employees whether they wanted to remain Union
members and coercing employees into resigning from their Union memberships and resigning 40
from the Union’s apprenticeship program.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

31 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
JD(SF)–59–14
23
(a) Resume its collective-bargaining relationship with the Union and observe the
collective-bargaining agreement in the manner equivalent to its observation of the
agreement up to and including December 31, 2013.
5
(b) On request, bargain with the Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and conditions of employment:
All employees employed by Respondent in the job classifications described in the
Collective Bargaining Agreement between the Painting and Decorating Contractors 10
Association of Hawaii and the Union effective from February 1, 2013 to June 30, 2016.
(c) Within 14 days from the date of the Board’s order, restore the employees’ pay and
Union trust fund contributions and to make employees whole for any losses they incurred
as the result of the unilateral changes in the manner set forth in the remedy section above.15
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such 20
records if stored in electronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Honolulu, Hawaii,
copies of the attached notice marked “Appendix.”32 Copies of the notice, on forms 25
provided by the Regional Director for Region 20, after being signed by the 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 physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an intranet or an internet site, 30
and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by the Respondent 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 Respondent shall duplicate and 35
mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since December 27, 2013.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the 40
steps that the Respondent has taken to comply.

32 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 United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–59–14
24
Dated, Washington, D.C. December 19, 2014
5
____________________
Eleanor Laws
Administrative Law Judge

10
JD(SF)–59–14
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.
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT coerce you into resigning their Union memberships and resigning from the
Union's apprenticeship program
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL resume our collective-bargaining relationship with the Union and observe the
collective-bargaining agreement in the manner equivalent to our observation of the agreement up
to and including December 31, 2013.
WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the bargaining unit:
All employees employed by Respondent in the job classifications described in the
Collective Bargaining Agreement between the Painting and Decorating Contractors
Association of Hawaii and the Union effective from February 1, 2013 to June 30, 2016.
WE WILL rescind changes to employees’ pay and benefits, and make employees whole for any
loss of earnings and other benefits resulting from the unilateral changes to pay and benefits, less
any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
JD(SF)–59–14
WE WILL compensate employees for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year.
HARRY ASATO PAINTING, INC.
(Employer)
Dated By
(Representative) (Title)
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-124382 or by using the QR code
below. 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.
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 BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5183.