Pacific Micronesia Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 458 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458
Pacific Micronesia Corporation d/b/a Dai-Ichi Hotel
Saipan Beach and Commonwealth Labor Fed-
eration & Hotel Employees & Restaurant Em-
ployees, Local 5, AFL–CIO, Joint Petitioners.
Case 37–RC–3739
August 27, 1998
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer’s request for review
of the Regional Director’s Supplemental Decision on
Challenged Ballots and Objections to Conduct of Second
Election, and Certification of Representative (pertinent
portions of which are attached as an Appendix).1 The
request for review is denied as it raises no substantial
issues warranting review.2

APPENDIX
REGIONAL DIRECTOR’S SUPPLEMENTAL DECISION
ON CHALLENGED BALLOTS AND OBJECTIONS TO
CONDUCT OF SECOND ELECTION. AND CERTIFICA-
TION OF REPRESENTATIVE
Pursuant to a Decision and Direction of Second Election is-
sued by the Board on September 24, 1997, an election by secret
ballot was conducted on February 5, 1998, among the employ-
ees in the following appropriate collective-bargaining unit:

All full-time and regular part-time employees employed by
the Employer in the Commonwealth of the Northern Mariana
Islands; excluding all managerial employees, professional
employees, confidential employees, guards and supervisors as
defined in the Act.

1 Review was requested solely with respect to Objections 1, 2, 3, and
4.
2 In denying review, we agree with the Regional Director’s conclu-
sion that Objection 4, which alleged that a supervisor intimidated the
Employer’s election observer into withdrawing and forcing the Em-
ployer to choose a substitute, should be overruled, but for different
reasons from those set forth by the Regional Director. The Regional
Director found that Annamae Adaza, as a supervisor, would not have
been permitted to be an election observer for the Employer. However,
Marilou “Lulu” Thomson, not Adaza, was the chosen election observer;
Adaza did not suggest that she, herself, wished to serve as observer.
Further, we find it unnecessary to determine whether the Employer
was estopped from relying on Adaza’s “misconduct” as objectionable.
Adaza did not engage in any conduct which interfered with the em-
ployees’ free choice in selection of a representative. Adaza did not act
in a manner with respect to Thomson that would coerce Thomson into
supporting Joint Petitioners because of fear of retaliation or hope of
reward. Nor did Adaza intimate retaliation against Thomson if she
remained an observer. At most, Adaza’s “threat” constituted a message
to the Employer that if it used Thomson as an observer, employees
would be more likely to vote for the Joint Petitioners. Such a message
does not constitute objectionable conduct, particularly where, as here,
there is no claim or evidence that Adaza’s statement was disseminated
to voters.
Chairman Gould agrees that Objection 3, alleging that the comments
attributed to the Petitioner Local 5’s business agent in a newspaper
article contained inflammatory appeals to racial prejudice under Sewell
Mfg. Co., 138 NLRB 66 (1962), should be overruled for the reasons set
forth in his concurring opinion in Shepherd Tissue, Inc., 326 NLRB No.
38 (1998).

Upon the conclusion of the election, a copy of the official
tally of ballots was served on the parties, showing the following
results:

Approximate number of eligible voters 274
Void ballots 2
Void ballots Votes cast for Joint Petitioners 131
Votes cast against participating labor organization 121
Valid votes counted 252
Challenged ballots 9
Valid votes counted plus challenged ballots 261

The challenged ballots were not sufficient in number to af-
fect the results of the election.
The Challenged Ballots
The ballots of Annamae Adaza, Marilou Dela Cruz, Gloria
Guiterrez, Cerlito Hipolito, Rosita Panqilinan, Antonia Rabe,
Rina Robles, and Luisa Santiago were challenged by the Em-
ployer on the ground that they are supervisors. The ballot of
Antonio Cabrera was challenged by the Joint Petitioners on the
ground that he is a confidential employee.
The Objections
On February 11, 1998, the Employer timely filed Objections
to the Conduct of the Election and to Conduct Affecting the
Results of the Election, a copy of which was served on the Joint
Petitioners. The Objections are as follows:
Objection 1. Invalidity of Second Election
The election conducted in this proceeding on March
21, 1996, was a valid election. The Board’s decision of
September 24, 1997, setting aside the results of that elec-
tion and ordering the holding of a new election on the
grounds of alleged third party misconduct is at odds with
the Board’s prior third party interference jurisprudence,
fails to explain this departure from precedent, is inconsis-
tent with the provisions of the National Labor Relations
Act (“Act”) and would raise grave constitutional issues
were the Act interpreted to embrace third party conduct of
the kind in issue here. Consequently, the second election
should be set aside and the results of the original election
reinstated.
Objection 2. Supervisory Taint
The laboratory conditions necessary for a fair election
were destroyed by the coercive conduct of several [Em-
ployer] supervisors who campaigned for the union, cov-
ertly vis-a-vis management, but actively and aggressively
with respect to their subordinates—thus interfering with
and chilling the employees’ free and unfettered choice.
Because of the closeness of the election, any one of these
supervisors, much less all or any combination of them, had
dominion over sufficient employees to reverse the out-
come of the election.

A. The following supervisors, who were stipulated by
the Joint Petitioners at the Representation [sic] hearing to
occupy positions classified as statutory supervisors en-
gaged in misconduct: Marilla Alarrilla, and Alex Gablinez.
[The Employer] believes that other supervisors also en-
326 NLRB No. 45
DAI-ICHI HOTEL SAIPAN BEACH 459
gaged in election interference and will supply further in-
formation as it comes to light.
B. Certain individuals whom the [Employer] views as
supervisors, but whom the union does not (and who voted
challenged ballots in the election) also engaged in im-
proper interference. These were: Ma. Annamae Adaza and
Cerlito Hipolito and at least some of the following: Mar-
ilou Dela Cruz, Gloria Guiterrez, Antonia Rabe, Ma. Rina
Robles and Ma. Luisa Santiago.
C. Certain supervisors, as yet unidentified, are also be-
lieved to have engaged in improper conduct.

Information concerning the supervisory misconduct
has come to the [Employer’s] attention either anony-
mously or with requests for confidentiality because of a
fear of retaliation by the misbehaving supervisors. [The
Employer] will endeavor to develop further direct evi-
dence, consistently with the constraints imposed by John-
nie’s Poultry [146 NLRB 770 (1964)]. However, the full
facts are likely to be developed only by the Board’s own
investigation and its confidential discussions with employ-
ees, and/or with the aid of compulsory process. Otherwise,
the coercive conduct of the supervisors will not only have
denied the employees their free choice in a representation
election, but will also have precluded the employees from
obtaining redress.
Objection 3. Blatant Prejudicial Appeals
During the course of this campaign, the union, its prin-
cipal spokesmen (Vie Perez, Local 5 Business Agent, and
Hermie Coronejo, chief in-plant organizer) and other un-
ion agents and supporters made blatant appeals to racial,
national origin and citizenship prejudice, seeking to whip
up animosity between Filipino contract workers, on the
one hand, and, on the other hand, locals (Chamorros and
other Micronesians), Nepalese, Japanese and even IR’s
(immediate relatives, especially Filipino nationals married
to U.S. citizens).
Objection 4. Intimidation of Company Representative
Union adherents, including Annamae Adaza, intimi-
dated the Company’s chosen election observer into with-
drawing from that role and obliging the Company to
choose a substitute.

Pursuant to Section 102.69 of the Board’s Rules and Regula-
tions, Series 8, as amended, I have conducted an investigation
of the challenged ballots and objections and find as follows:
The Challenged Ballots
The Employer challenged the ballots of eight voters, and the
Joint Petitioners challenged the ballot of one voter. As the tally
of ballots indicates, these nine challenged ballots were not de-
terminative of the election results at the time of the election.
However, the nine challenges, in conjunction with subsequently
filed Objection 6, could potentially be determinative of the
election results.
Subsequent to the election, for purposes of resolving this
election, the Joint Petitioners agreed, in writing, with the Em-
ployer that Adaza, Dela Cruz, Guiterrez, Hipolito, Pangilinan,
Rabe, Robles, and Santiago are supervisors. Accordingly, I
sustain the challenges to their ballots and find that they were
not eligible to vote in the election. Because the remaining chal-
lenge filed by the Joint Petitioners to the ballot of Cabrera is
not determinative of the election results, I find it unnecessary to
rule on that challenged ballot.
I therefore issue the following revised tally of ballots:

Approximate number of eligible voters 274
Void ballots 2
Void ballots Votes cast for Joint Petitioners 131
Votes cast against participating labor organization 121
Valid votes counted 252
Challenged ballots 1
Valid votes counted plus challenged ballots 253

Objection 1
In this objection, the Employer contends that the March 21,
1996 election, was valid and should not have been set aside on
the grounds of alleged third-party misconduct. As the Board
has already considered this contention in its September 24,
1997 Decision and Direction of Second Election and rejected it,
I find that this objection lacks merit and it is overruled.
Objection 2
The Employer submitted its evidence in support of its objec-
tions in a letter with attachments dated February 20, 1998. The
letter states with regard to Objection 2, that on the day before
the election, Personnel Manager Peding Sanchez received an
anonymous telephone call from an employee, who stated that
Marilla Alarrilla, a supervisor, was campaigning on behalf of
the Joint Petitioners. A declaration by Sanchez states, in rele-
vant part, that a female who identified herself as an employee
called Sanchez at home and told her that Alarrilla had made
statements in support of and urged employees to vote for the
Joint Petitioners; that Alarrilla said management had been
given a chance with the first election, but had not done any-
thing for the employees, and that is why they needed to vote for
the Joint Petitioners. Sanchez’ declaration also states that Su-
pervisor Romy Malabanan told her that he “suspected” another
supervisor, Alex Gablinez, was involved in the writing and
distribution of a flyer on behalf of the Joint Petitioners.
The Employer’s letter further alleges that General Manager
Izumi Kinoshita and his secretary, Rita Sablan, received tele-
phone calls from a female, in which the caller identified several
supervisors who had supported the Joint Petitioners, including
Alarrilla, Gablinez, Diomedes “JoJo” Nuique, Cerito Hipolito,
Romeo Barcelon, and Arthur Guerrero. A declaration by Kino-
shita was submitted, but it did not provide any further detail.
The Employer’s letter listed “potential” witnesses to the super-
visory statements to employees; the list contained all employ-
ees who were supervised by the supervisors “believed to have”
campaigned for the Joint Petitioners.
In Cal-Western Transport, 283 NLRB 453 (1987), enfd. 870
F.2d 1481 (9th Cir. 1989), the Board outlined the following
three situations in which a supervisor’s conduct on behalf of the
union may have an objectionable effect sufficient to warrant
setting aside the election: (1) the employer takes no stand con-
trary to the supervisor’s prounion conduct, and employees can
be led to believe the employer favors the union; (2) a supervi-
sor’s prounion conduct could coerce employees into supporting
the union out of fear of future retaliation by that supervisor; or
(3) the employees could be coerced out of a hope of reward by
the supervisor. Id. at 453, 455. Accord: U.S. Family Care San
Bernadino, 313 NLRB 1176, 1176 (1994); Sil-Base Co., 290
NLRB 1179, 1179 (1988). The indicia of authority a supervisor
possesses are factors to be considered in evaluating whether his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460
or her prounion conduct could reasonably tend to coerce em-
ployees. Cal-Western Transport, supra at 455.
Because the Employer here clearly communicated its anti-
union position to the employees, the first of the Cal-Western
situations is not at issue. With regard to the issue of supervisory
potential to retaliate against or reward employees, none of the
allegations or evidence put forth by the Employer even suggests
that the alleged supervisors made statements containing any
hint of retaliation or reward. Indeed, this objection simply
claims that supervisors campaigned for the Joint Petitioners
“actively and aggressively” and engaged in “misconduct” or
“improper interference.” The declarations submitted in support
of this objection do not even point to any evidence of coercion
because of the supervisors’ alleged behavior. See Sutter Rose-
ville Medical Center, 324 NLRB 218 (1997) (employer’s evi-
dence and offer of proof failed to establish a prima facie case of
objectionable prounion supervisory conduct; employer pre-
sented no evidence of threats or promises of benefits).1
As the Board stated in Sutter Roseville Medical Center, slip
op. at 2, “supervisory statements endorsing the union and point-
ing out the possible benefits of union representation . . . are not
inherently coercive and are not objectionable when made with-
out threats of retaliation or reward, [but] are permissible ex-
pressions of personal opinion.” Even if it is assumed that the
persons alleged to be supervisors had supervisory authority and
that the employees were aware of that authority, to be coercive,
their alleged prounion conduct would have to be “so marked or
inordinate as to lead the employees to fear possible retribution
at [their] hands in the event that they reject the Union,” a situa-
tion which is certainly not present in this case. Sil-Base Co.,
290 NLRB at 1180–1181 (quoting Stevenson Equipment Co.,
174 NLRB 865, 866 (1969)). I therefore overrule Objection 2.
Objection 3
In this objection, the Employer alleges that the Joint Peti-
tioners and their agents and supporters made “blatant appeals to
racial, national origin and citizenship prejudice.” According to
the Employer, the Joint Petitioners attempted to create animos-
ity between the contract workers from the Philippines and the
locals (Chamorros and other Micronesians), Nepalese, Japa-
nese, and “immediate relatives.” In support of this objection,
the Employer submitted a copy of a flyer (App. A) allegedly
distributed by the Joint Petitioners and a newspaper article
(App. B). Although Appendix A is printed on Hotel Employ-
ees & Restaurant Employees, Local 5 letterhead, in an affidavit
taken during the investigation, the Joint Petitioners denied that
Appendix A is a Local 5 document or that Local 5 distributed
it. Regardless of this denial, even assuming for the purpose of
ruling on this objection that the Joint Petitioners were responsi-
ble for Appendix A, I find no merit to this objection.
In Sewell Mfg. Co., 138 NLRB 66, 71–72 (1962), the Board
stated that it would not set aside an election on the basis of
racial appeals where a party limits itself to truthfully setting
forth another party’s position on matters of racial interest and
“does not deliberately seek to overstress and exacerbate racial
feelings by irrelevant, inflammatory appeals.” Cases since Sew-
ell have shown that this “rule . . . is applicable only in those

1 The evidence presented by the objecting party must establish a
prima facie case in support of the objections. Park Chevrolet-Geo, 308
NLRB 1010 (1992). Here, the Employer has not presented any evi-
dence which would establish a prima facie case in support of Objection
2.
circumstances where it is determined that the ‘appeals or argu-
ments can have no purpose except to inflame the racial feelings
of voters in the election.’” Englewood Hospital, 318 NLRB
806, 807 (1995) (quoting Bancroft Mfg. Co., 210 NLRB 1007,
1008 (1974), enfd. 516 F.2d 436 (5th Cir. 1975), and Sewell).
See, for example, Zartic, Inc., 315 NLRB 495, 497 (1994).2
Since the Employer failed to point out which statements in
the flyer it believes are impermissibly inflammatory, all state-
ments which mention local vs. foreign contract workers or eth-
nic issues have been examined. There are five such statements:

[1.] For locals who worked long time in this hotel like
John Mendiola, Tony Pangilinan, Antonio Camacho,
Francisco, Rose Navat, and Amalia were you not insulted
that an alien contract worker is receiving $1,650 a month
just for buying materials at the Engineering Department?
[2.] About the subject of dues $26 is collected per
month because their hourly rate is $13/hour (Hawaii). In
Saipan it is only $6.40 monthly dues because Saipan
workers are making $3.05/hour. The co[m]pany lawyers
knows [sic] these things only they are not telling you the
truth. If during the Collective Bargaining Agreement the
union will suc[c]eed in asking the company $6.00 to $7.00
per hour for local employees and $4.50 to $4.80 per hour
for contract workers simple arithmetic will tell you that
ordinary employee like you and me is on the win-win
situation. If the company can afford to pay a Washington
based lawyer for $300 to $400 per hour how much more
for us who are the gasoline and oil in this company. Be it a
local or an alien employee.
[3.] Mr. company lawyer by the way is the personnel
manager right when she told those pregnant alien wom[e]n
that their contract will only be renewed if they will deliver
in the Philippines? She once told those pregnant alien
women that it is a violation of their contract to deliver here
in the CNMI.
[4.] Or perhaps Iwabuchi san for allowing his ass to be
kissed daily by Romy san. Take note Japanese managers it
is always not good to give special preferen[t]ial treatment
to anybody.
[5.] Fellow employees, we have tried working without
a UNION and we are still the same—‘Poor Local and Poor
Alien Workers.’ So let’s try to have one.

The above statements do not constitute irrelevant, inflamma-
tory appeals to ethnic prejudice. To the contrary, most of these
campaign statements speak in terms of the local and alien
workers being in a common situation and needing the Joint
Petitioners to improve everyone’s working conditions (state-
ments 2, 4, and 5). The first statement appears to focus more on
longevity and pay issues than ethnicity, appearing to be a com-
plaint that one particular alien worker is overpaid compared to
local workers. The third statement addresses the treatment of
pregnant Filipino contract workers, but it speaks in terms of
protecting those workers and does not denigrate any ethnic
group. Although the fourth statement says that Japanese man-
agers should not give special treatment to anyone, it certainly
cannot be said that such is an attack on a particular racial or
2 The situation in Zartic was subsequently described by the Board as
a ‘‘near riot’’ by employees at an employer campaign meeting. Cath-
erine’s, 316 NLRB 186, 186 (1995).
DAI-ICHI HOTEL SAIPAN BEACH 461
ethnic group sufficient to require a third election in this case.
See Englewood Hospital, 318 NLRB 806, 807 (1995).3
In short, no suggestion was made in the flyer that workers of
particular ethnic groups should not be permitted the same rights
as those in other ethnic groups. A “vote for the union was rep-
resented as a vote for better working conditions, not as a vote
against [another] race” or ethnic group. Baltimore Luggage Co.,
162 NLRB 1230, 1234 (1967), enfd. 387 F.2d 744 (4th Cir.
1967).
With regard to the newspaper article, its headline―“Union
decries ‘divisive’ tactics by employers”―summarizes the
JointPetitioners’ statements on the ethnic issue. The article
stresses the Joint Petitioners’ claim that it was the Employer
who was engaging in tactics to divide workers and contained a
call by the Joint Petitioners “for unity among hotel workers.”
See State Bank of India v. NLRB, 808 F.2d 526, 539 (7th Cir.
1986) (union’s statement urged employees to vote for the union
not by appealing to and arousing their racial prejudice, but
rather by contending that employer itself was taking advantage
of their minority status), cert. denied 483 U.S. 1005 (1987). The
article contains statements by “Local 5 spokesperson” Vic
Perez that the Employer was hiring Nepalese nationals to break
an “overwhelming” union vote, because Filipinos, who he said
were known to be prounion, dominate the workforce. Perez is
also quoted as saying that Nepalese workers were still a small
percentage of the total workforce and that managment was
hiring them in an experimental fashion.
The article ends with statements by Ron Sablan, President of
the Hotel Association of the Northern Mariana Islands, refuting
the statements made by Perez. Sablan stated that Nepalese na-
tionals were hired because of difficulties in bringing in Filipi-
nos, which were due to new restrictions imposed by the Philip-
pine government. Sablan also stated that the hiring policy had
nothing to do with the union. See Staub Cleaners, Inc., 171
NLRB 332, 333 (1968) (election not overturned where em-
ployer repudiated race-based rumor), enfd. 418 F.2d 1086 (2d
Cir. 1969), cert. denied 397 U.S. 1038 (1970).
In short, the Employer has not substantiated that the Joint Pe-
titioners have made any appeals to ethnic prejudice which
would require another election. I therefore overrule this objec-
tion.
Objection 4
In this objection, the Employer claims that union adherents,
including Annamae Adaza, intimidated the Employer’s election
observer into withdrawing as observer and obliging it to choose
a substitute. In support of this objection, a declaration by Per-
sonnel Manager Sanchez was submitted, which states that on
January 31, 1998, Marilou “Lulu” Thomson, an assistant in the
personnel office, told her that Adaza told Thomson that if she
served as observer, Adaza and others would vote for the Joint
Petitioners. Sanchez further states that, as a result, Thomson
was replaced as an employer observer.
The Employer challenged the ballot of Adaza on the basis
that she is a supervisor. As shown above with regard to the
challenges, the Joint Petitioners have stipulated to the supervi-
sory status of Adaza. Therefore, not only would Adaza not have
3 Even if the statement had constituted an ethnic attack, to require a
rerun election, it would also have to be shown that ethnic appeals con-
stituted a significant aspect of a party’s campaign, another factor not
present in this case. See Beatrice Grocery Products, 287 NLRB 302,
302 (1987).
been permitted to be an election observer for the Employer, but
the Employer is objecting to the conduct of an individual who
is its own representative. It is settled that a party to an election
is ordinarily estopped from relying on the misconduct of its
own supervisors or agents as objectionable. B. J. Titan Service
Co., 296 NLRB 668 (1989); Republic Electronics, 266 NLRB
852 (1983).4 I therefore overrule this objection.
Conclusion
For the reasons set forth above and based upon the investiga-
tion as a whole, I have sustained the challenges to the ballots of
Annamae Adaza, Marilou Dela Cruz, Gloria Guiterrez, Cerlito
Hipolito, Rosita Pangilinan, Antonia Rabe, Rina Robles, and
Luisa Santiago. Further, I have overruled all the Employer’s
objections.
Certification of Representative
As the revised tally of ballots set forth above shows that the
Joint Petitioners have received a majority of the valid votes
counted, I hereby find that the Joint Petitioners are the certified
representative of the unit employees.

APPENDIX B
(Newspaper article January 30, 1998)
UNION DECRIES ‘DIVISIVE’ TACTICS BY EMPLOYERS

By Jojo Dass
Variety News Staff

Local 5 yesterday called for unity among hotel workers in
the face of what it claimed as “dividing tactics” employed by
owners who have resorted to hiring Nepalese nationals suppos-
edly to break an “overwhelming” vote for unions.
“It is becoming a racial thing,” said Local 5 spokesperson
Vic Perez.
Perez claimed Filipino workers have been known to be pro-
union advocates.
Therefore, he said, it is highly likely that hotels and estab-
lishments with a large number of Filipino employees may vote
for the union.
“They (hotel management officials) are trying to break this
pattern that is why we call on all workers to unite,” said Perez.
Local 5 suffered a humiliating defeat during the recent elec-
tion at the Hyatt Regency Hotel where workers voted 233 to 47
against the union.
The entry of a number of Nepalese workers as well as a lar-
ger resident worker population in the hotel’s workforce, accord-
ing to Perez, is “one big factor” for the defeat.
Perez said the Feb. 5 union election in Dai Ichi hotel is
“more promising” to Local 5 because “Filipinos dominate” the
establishment’s 300 workforce.
Perez said the hiring of non-resident workers other than Fili-
pinos is becoming a trend in the hotel industry.
He however failed to give an estimate on the number of
Nepalese and other non-Filipino foreign nationals currently
employed.
4 The exception to this rule involves the party’s causing an employee
to miss the election, circumstances not present in this case. Republic
Electronics, supra, 266 NLRB at 853.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 462
“It’s still a small percentage (of the total workforce)…they
(hotel management officials) are doing it in an experimental
fashion,” he explained.
Ron Sablan, President of the Hotel Association of the North-
ern Mariana Islands, refuted Perez’ claims saying the hiring of
Nepalese nationals came about following difficulties encoun-
tered in bringing in Filipinos.
Sablan was referring to new restrictive measures imposed by
the Philippine government on the deployment of Filipino work-
ers abroad.
“The hiring policy has nothing to do with the union,” said
Sablan.
“The unions came come up with accusations…reasons on
why they are failing.”
“The workers have learned that basically they have nothing
to gain from unions. The laws and their contracts already pro-
tect them so there’s no need for unions,” Sablan stressed.
“The union is not about nationality,” agreed Josephine Me-
sta, Hyatt Human Resource Director.