Rainbow Coaches

RAINBOW COACHES Rainbow Tours, Inc., d/b/a Rainbow Coaches and Ha- waii Teamsters and Allied Workers, Local 996, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Ronald Sai and Garrett Wong. Cases 37-CA-1341, 37- CA-1342, and 37-CA-1387 March 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS MURPHY AND TRUESDALE On March 29, 1978, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order,3 as modified herein.4 I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We disavow any suggestion by the Administrative Law Judge that Re- spondent, if properly motivated, could have discharged the strikers herein so as to be able to obtain replacements. When employees engage in a total refusal to perform work, as here, as opposed to a partial work stoppage, there is no business need to discharge the strikers to obtain replacements. In such circumstances a discharge of the strikers is unlawful. Newberry Energy Corporation. Industrial Division. 227 NLRB 436, 437 (1976). The Administrative Law Judge inadvertently finds that under Respon- dent's reinstatement offer the first full-time striking driver to be reinstated would be no. 8 on the seniority roster; the correct number is 10. 2 The Administrative Law Judge found that the Teamsters picketing was not recognitional at its inception. We find it unnecessary to pass on this finding since we find that, even if it was recognitional at its inception, it was not unlawful. 3The Administrative Law Judge in the remedy section of his decision orders backpay for the discharged strikers "for all wages and other benefits lost between the date of their discharge and their reinstatement.... "Chair- man Fanning and Member Truesdale agree with this finding. See Abilities and Goodwill, Inc., 241 NLRB 27 (1979). Member Murphy, in accordance with her dissent in that case, would find that Respondent's backpay obligation herein did not commence until the employees applied for reinstatement. 4 In his recommended Order, the Administrative Law Judge provided that Respondent shall cease and desist from "in any like or related manner inter- fering with, restraining or coercing its employees in the exercise of' their Sec. 7 rights. However, we have found that Respondent discharged 12 employees in violation of the Act, The discharge of an employee for engaging in pro- tected activities is an unfair labor practice which goes to the very heart of the Act, and in such cases the Board traditionally provides broad injunctive language constituting a broad order. Accordingly, we shall modify the Ad- ministrative Law Judge's recommended Order to require that Respondent ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge. as modified be- low, and hereby orders that the Respondent, Rainbow Tours, Inc., d/b/a Rainbow Coaches, Ho- nolulu, Hawaii, its officers, agents, successors, and as- signs, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph l(c): "(c) In any other manner interfering with, restrain- ing. or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. cease and desist from "in any other manner" infringing upon the rights guaranteed to its employees by Sec. 7 of the Act. Ambulance Services of New Bedford. Inc., 229 NLRB 106 (1977); N.L.R B v. Ent.istle Mfg Co. 120 F.2d 532 (4th Cir. 1941). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with the right of our employees to seek and secure representation by Hawaii Teamsters and Allied Workers, Local 996, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by threatening them with loss of business, new buses, and the services of the manager (Steve Kolt) who brought in that new business, as well as loss of employment, if the employees seek or secure representation by the labor organization named above, or any other labor organization. WE WILL NOT interfere with the right of our employees to engage in protected concerted ac- tivities by discharging them for refusing to cross a picket line established at our premises. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights under Section 7 of the Na- tional Labor Relations Act, as amended, to orga- nize, form, join, or assist labor organizations, bargain collectively through representatives of their choosing, engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or refrain from any or all such activities. WE WILL offer Henry Sanford, Ralph Kaui, 241 NLRB No. 86 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ross Iho, Michael Akamine, Jay Agao, James Louis, Paul Iwata, G. Lane Kaaiai, Ronald Sai, Garrett Wong, Miles Fonseca, and Eric Kama reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, with full restoration of their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of their unlawful discharge by us for refusing to cross a picket line established by the labor organization named above. RAINBOW TOURS, INC., D/B/A RAINBOW COACHES DECISION STAIEMENI OF IEF CASE GEORGE CHRISTENSEN, Administrative Law Judge: On July 6 through 13, 1977, 1 conducted a hearing in Honolulu, Hawaii, to hear issues raised by a complaint issued on April 29, 1977, and amended during the hearing, consolidating issues raised by a charge filed by Hawaii Teamsters and Allied Workers, Local 996, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America' on March 2, 1977, in Case 37 CA- 1341; a charge and amended charge filed by Ronald Sai on March 4 and May 16, 1977, in Case 37-CA-1342; and a charge filed by Garrett Wong on July 5, 1977, in Case 37-CA-1387.2 The latter case was consolidated with the former two cases dur- ing the hearing inasmuch as all three cases involve common parties, circumstances, and issues and to avoid unnecessary costs and delay. The April 29, 1977, complaint was amended during the hearing to add Case 37-CA-1387 to the proceeding to name Garrett Wong as a party; to add a new paragraph I(c) stating Ronald Sai filed his first amended charge in Case 37-CA-1342 on May 16, 1977, and a copy thereof was served on Rainbow Tours, Inc., d/b/a Rainbow Coaches3 the same day; to add a new para- graph (d) stating Garrett Wong filed his charge in Case 37-CA- 1387 on July 5, 1977, and a copy thereof was served on the Company the same day; and to add the names Gar- rett Wong, Miles Fonseca, and Eric Kama to paragraph Vl(c) of the complaint. The amended, consolidated complaint alleged that the Company violated Section 8(a)(l) of the National Labor Relations Act, as amended (hereafter called the Act) by threatening employees with loss of new buses and sale of the Company if they sought representation for the purpose of bargaining collectively with the Company over their rates of pay, wages, hours, and working conditions and dis- charging employees for respecting a picket line established by the Union at the Company's premises. The Company denied it made the alleged threats: as- serted employees who respected the Union's picket line I Hereafter called Teamsters or IBT or the Union. 2 This case was consolidated with Cases 37-CA-1341 and 37-CA 1342 after the hearing commenced (see Statement of the Case infra, for details). Hereafter called Rainbow or the Company. were not engaged in activity protected under the Act be- cause the Union's picketing was unlawful: asserted employ- ees who respected the Union's picket line did so because of fear of violence and therefore were not engaged in activity protected under the Act; and finally asserted employees who respected the Union's picket line were replaced for valid and legitimate business reasons and therefore their discharges were not violative of the Act. The Company also contended two of the employees (Ronald Sai and Ralph Kaui) are not entitled to reinstatement because Sai was dis- charged for cause and Kaui was a supervisor, and none of the alleged discriminatees are entitled to reinstatement be- cause they did not make unconditional offers to return to work. The issues before me are: 1. Whether the Company threatened employees with loss of new buses and sale of the Company to inhibit their seek- ing and securing representation for collective-bargaining purposes. 2. Whether the Company discharged employees for re- specting the Union's picket lines. 3. If either or both the above issues are answered in the affirmative, whether the Company thereby violated the Act. 4. Whether Sai and Kaui and the other alleged discrimi- natees are entitled to the benefit of a reinstatement order. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record,' observation of the witnesses, perusal of the briefs and research, I enter the following: FINDINGS OF FACT I. JURISI)ICTION AND LABOR ORGANIZAIION The complaint alleged, the answer (as amended at the hearing) admitted, and I find at all pertinent times that the Company was an employer engaged in commerce in a busi- ness affecting commerce and the Union was a labor organi- zation within the meaning of Section 2(2), (5), (6), and (7) of the Act. I. IHE ALLEGED UNFAIR I.ABOR PRACTICES A. Facts The parties stipulated and I find the Company is the suc- cessor of a bus company known as Transportation Associ- ates (hereafter called TA). TA was controlled by its chair- man and president, Harold Fukunaga, and shared a yard and headquarters with another bus company known as Charley's located on Piikoi Street in Honolulu. Prior to Oc- tober 1976, TA's operations were directed by Brian McCreadie, its general manager, inasmuch as Fukunaga spent most of his time at his regular employment as an executive of Love's Bakery in Honolulu. In October 1976, Steven Kolt purchased a 30 percent interest in TA and as- I Pursuant to the General Counsel's motion, certain errors in the transcript have been noted and are hereby corrected. 590 RAINBOW COACHES sumed the presidency of TA from Fukunaga. While McCreadie remained in TA's employ as general manager. Kolt assumed control of its operations.5 Prior to assuming TA's presidency, Kolt spent approxi- mately 20 years in the tour-ground transportation business. working both on the mainland (primarily in the Los Ange- les area) and on Oahu. Between 1970-75 he was vice pres- ident and a director of Hawaiian Scenic Tours in charge of its ground transportation, which consisted of two divi- sions one providing bus transportation for school children and the other bus transportation to tourists. Hawaiian Scenic's Oahu-based bus drivers were represented by the IBT and its outer island bus drivers were represented by the International Longshoremen and Harborworkers Union (hereafter called ILWU). Kolt dealt with both unions on a day-to-day basis and became familiar with their representa- tives, contracts, and operations. During the time Kolt was negotiating the purchase of a 30 percent interest in TA (between January and October 1976), the Teamsters sought recognition, picketed the yard shared by TA and Charley's, and succeeded in securing recognition and a contract with Charley's. When Kolt assumed control of TA's operations, the Company was operating 12 old buses leased from another tour-bus operator called Robert's Ullima tours. It was oper- ating at a loss. It was also signatory to an agreement with Robert's to lease 20 new buses scheduled for delivery in two lots; a lot of 10 scheduled for December 1976 and a second lot of 10 scheduled for January or February 1977. One of the first things Kolt did (in October 1976) was meet with TA's drivers, advise them he was in charge, that the Com- pany was having financial difficulties, that he intended to secure new accounts and make the Company profitable. and that the Company would bring their wages, etc., up to parity with those paid by the Company's competitors when it became profitable. In response to a question concerning his attitude toward union representation of the drivers, he responded he felt employees did not need union representa- tion if their employer handled problems as they arose and maintained open communication; that tour operators would be more interested in using TA for their transporta- tion needs if it was nonunion: and suggested the drivers give him a trial period of about 8 months to see what he could and would do for them. Between October and December 1976, Kolt renegotiated the lease agreement with Robert's, changing it from a straight lease to four lease-purchase agreements, and limit- ing the agreements to 10 rather than 20 buses. Within a short time he also secured several new accounts. By December 1976 the name of the Company had been changed from TA to Rainbow; the Company had moved to Kelokoi Street in Honolulu to occupy space leased from and shared with Robert's, using Robert's wash crews and mechanics to service its buses;7 six new buses had been I find at all times pertinent Fukunaga, Kolt. and McCreadie were super- visors and agents acting on behalf of both TA and its successor. Rainbow. 6 The four lease-purchase agreements were executed on December 1, 1976. and provided for the delivery of four buses on December I, 1976. two buses on December 13. 1976. two buses on December 20. 1976. and the final two buses on December 28. 1976. 7 The terms for such services were not developed in the record added to Rainbow's fleet: new full-time' drivers were added to the work force:9 and three new accounts had been se- cured by Kolt. On December 15, 1976, Kolt again met with the Compa- ny's drivers. He announced the Company was going to in- vite the families of its employees, customers and friends to a Christmas luau; that he had secured three new accounts for the Company and expected to gain several more in the near future: that six of the new buses had been delivered and four more were coming, all on lease from Robert's:;'° that he needed the support of the drivers to keep the new accounts, secure more, and make the Company profitable; and re- peated his promise to bring the drivers' wages to parity with those of the Company's competitors when the Company achieved a profitable status. He also stated that the rumors that he was going to terminate McCreadie's employment were false," he and McCreadie had worked well together in the past and he expected they would continue to do so; that the rumor he was going to give preferential treatment to the new drivers from Hawaiian Scenic was also false, while they were his friends he believed in following seniority prin- ciples and the older drivers would not lose out to the new ones. Kolt was again questioned concerning his attitude to- wards union representation of the drivers. He replied he had amicable relations with both the ILWU and the IBT while he was employed by Hawaiian Scenic, that he be- lieved the ILWU did a better job of representing its mem- bers, and was critical of IBT representation, tactics, and policies. He went on to state he favored many of the poli- cies and procedures contained in labor agreements, such as the seniority principle and a three-step disciplinary proce- dure, but if the Company's drivers went union, the Com- pany would lose the big, new accounts he brought in; con- sequently. it would lose the new buses, and he would have to pull out.'2 As noted heretofore, by December 28, 1976, 10 new buses were in service and a number of former Hawaiian Scenic drivers had been hired as full-time employees. Prior to the delivery of the first lot of new buses (four in number), the Company employed five full-time drivers and a varying number of casual and part-time drivers. The five full-time drivers and their dates of hire (by either Rainbow or its predecessor, TA) were: Henry Sanford Ralph Kaui Ross Iho Mike Akamine Jay Agao September 21, 1971 February 12, 1975 September 26. 1975 September 27, 1975 March 22, 1976 On January 10, 1977, the Company posted a notice it was ' The Company employed both full-time and part-time drivers. I New drivers were brought over from Hawaiian Scenic by Kolt; they and Kolt had developed friendly relations while Kolt was employed by Hawaiian Scenic. ' He explained the terms of the leases. i McCreadie was popular with the drivers. 12 The findings contained in this paragraph are based upon the testimony of Kolt and several of the dnvers who attended the meeting. Kolt corrobo- rated the drivers' testimony except for their testimony concerning the re- marks set out in the last sentence. I credit the drivers' testimony on the basis of the logical relation of the remarks to the general tenor of Kolt's earlier comments. his October comments. and the mutual corroboration and clarity of the dners' recollection 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going to increase its roster of full-time drivers and would give first priority to present drivers, provided they were not employed fulltime elsewhere (or were prepared to give up such full-time employment). Sometime thereafter,' 3 the Company posted the following document: FULL-TIME DRIVERS AS OF JAN. 15, 1977 Our list of Full Time Drivers has expanded to include the following [by seniority number and seniority date of hire]: Date of Hire Name 9-21-71 Henry Sanford 2-12-75 Ralph Kaui 9-26-75 Ross Iho 9-27-75 Mike Akamine 3-22-76 Jay Agao 1-14-77 Vernon Nelson 1-15-77 James Kaopuiki - 16-77 Bobby Fujimoto - 17-77 Peter Sataraka - 19-77 Bozo Kaiihue 1-20-77 Billy Martinez 1-21-77 Ike Sataraka" On or about January 25, 1977, Ronald Sai, employed by the Company as a part-time driver from October 1976, ap- proached Kolt to inquire why he and other part-time driv- ers, employed full time as city firemen,'5 had not received pay increases granted to other employees. Kolt replied he had not increased their wages because he doubted their loy- alty to the Company and thought the firemen were organiz- ing for the Union.', When Sai protested, Kolt promised to consider them for a wage increase in about 30 days. A few days later (on Friday, January 28, 1977) approxi- mately 19 of the Company's drivers, including full-time drivers Sanford, Kaui, Iho, Akamine, and Agao and part- time drivers Fonseca, Paul Iwata, G. Lane Kaaiai, Kama, James Louis, Sai, and G. Wong, met at McCreadie's home. The men discussed their dissatisfaction over the hire of Kolt's friends from Hawaiian Scenic as full-time, rather than part-time, probationary drivers and their assignment to the best vehicles and tours, and elected Kaui and G. Wong as their spokesmen to express their grievance to Kolt. They also decided to seek representation by the ILWU in the event they were not satisfied with Kolt's respo se. McCreadie was present throughout the meeting. The following morning (Saturday, January 29, 1977) IBT pickets appeared outside the Rainbow yard with picket signs reading "Rainbow Coaches is paying substandard wages" and "Rainbow Coaches is working without a union contract." Sai was scheduled to work that day at his full- time employment as a fireman, commencing his shift at 8 a.m. He was at the firehouse early (at about 7 a.m.) and received a call there advising him there were IBT pickets outside the Rainbow yard. He went to the yard, observed " Kolt testified the roster was posted sometime between January 15, 1977, and the first day the IBT picketed Rainbow's yard. It was established the picketing began on Saturday, January 29, 1977. 14 It is undisputed Ike Sataraka commenced work January 21, 1977, worked for a few days, and did not work thereafter. 1' Sai, Garrett Wong, A. Wong, Eric Kama, Miles Fonseca, and Mike Cabanilla. 36 The city firemen were represented by a labor organization; Sai had been employed by Charley's when it was organized by the IBT. the picketing, and telephoned Kaui and G. Wong. They decided to invite the 19 drivers who attended the meeting at McCreadie's house the preceding evening to meet the fol- lowing morning opposite the yard to decide what they ought to do. They divided up the list of 19 names for noti- fication. Both Sai and G. Wong also telephoned the Com- pany's dispatcher and requested to be placed on sick leave. Iho and Agao commenced work on January 29, 1977, before the pickets arrived. Both were advised by radio tele- phone of the picketing, that they would be given assign- ments throughout the day by radio, and instructed to re- main away from the yard until the dispatcher advised them the pickets had left. They followed instructions and worked all day, returning their buses to the yard after the dis- patcher advised them the pickets had dispersed and di- rected their return to the yard. During the course of their work that day, both Iho and Agao observed a carload of men unknown to them pull up in front of their buses and an occupant in the rear seat, after getting their attention, sketching the outline of a box or a coffin with his hands. Sanford was scheduled to work on January 29, but, seeing the pickets on arriving at the yard at about 8:30 a.m., de- cided not to cross the picket line and returned home. Kolt telephoned Kama that evening and informed Kama of the IBT picket line, but told Kama not to worry about it and to report for work the next morning. Sanford was tele- phoned by the dispatcher and instructed to report for work the following morning. Iwata was also instructed to report for work on January 30. Sanford and Iwata reported for work on Sunday, Janu- ary 30, prior to the arrival of any pickets. Sanford asked why he was called in, since Sunday was his regular day off. Kolt informed him he was called because he had not worked the day before when he was scheduled. Sanford and Iwata picked up their worksheets and microphones, checked out their buses, and proceeded towards the gate, with Sanford in the lead. Before Sanford reached the gate, pickets appeared outside. Sanford stopped the bus and in- formed Kolt he was not going to go through the picket line. Kolt approached Iwata and asked him what he was going to do. Iwata replied he was not going to go through if San- ford was not going through. Kolt stated if Iwata was not going to drive he would have to discharge him,--the Com- pany had to keep the buses rolling. Sanford and Iwata backed the buses up, returned them to their parking spaces, and came to the company offices to turn in their micro- phones and worksheets. Kolt asked Sanford. if the pickets were there for 30 days did that mean Sanford would not drive for 30 days. Sanford replied affirmatively. Kolt then stated if Sanford left, he was not to return. Sanford asked if that meant he was fired. Kolt replied affirmatively. On the same day, James Louis left the yard with a bus prior to the arrival of any pickets. While he was parked at a tourist stop awaiting the return of his passengers, a stranger approached the door of the bus and instructed him to take the bus back to the yard. Louis refused. Soon thereafter a car arrived and one of the occupants again approached his door and in- structed him to take the bus back to the yard and look outside his window. Louis looked out the window and saw men pointing a shotgun and pistols at him. He stated he would return the bus to the yard. He then radioed the dis- 592 RAINBOW C patcher, told him what had occurred, and stated he was bringing the bus in (over the dispatcher's objections). Louis returned the bus to the yard and reported the incident to Kolt. Kolt said the men were just trying to frighten Louis. Louis replied he was not afraid personally, but he had been through a labor dispute before and his family had been threatened; he was a member of the union which represent- ed the employees at his full-time employment (by the city refuse department); and he was not going to work while the Company was picketed. When Kama arrived at the yard that morning and saw the pickets, he telephoned the dis- patcher and stated he was not going through the picket line. At or about 7 a.m. the same day (Sunday, January 30) Sai, G. Wong, Kaui, and other Rainbow drivers (the three were able to reach) began to gather across the street from the Rainbow lot. Sai and Kaui recognized several of the pickets as Hawaiian Scenic drivers. They asked why the IBT was picketing and the pickets stated the IBT was upset over Hawaiian Scenic's loss of both accounts '? and drivers to Rainbow. Their remarks were reported to the group. When Sanford and Iwata joined the group, they reported their discharge. The group discussed the discharges, the Iho and Agao incidents of the previous day, and the IBT pick- eting. They decided to stay together as a group, to seek ILWU representation, and to return to work. Sanford was designated to contact the ILWU. Sanford invited the group to come to his home and continue the discussion. McCrea- die came to Sanford's home, joined the group, and partici- pated in the discussion. Sanford attempted to contact an ILWU representative known to him, but was unsuccessful that day (Sunday). Iho contacted the company dispatcher and was given a starting time the following day. He was later contacted by Kaui, however, and requested to meet with the group outside the picket line the following morning prior to reporting for work. Others of the group were also contacted and requested to meet the following morning. Kolt, Fukunaga, and McCreadie held a meeting at the Rainbow yard that evening attended primarily by drivers who worked while Rainbow was picketed,'8 plus some re- cent hires and prospective employees.'9 Kolt told the gath- ered drivers he believed the IBT picketing was aimed mostly at Robert's,12 with the IBT taking on both Robert's and Rainbow mainly because they shared the yard. He stated Rainbow's customers were supporting Rainbow and it would be able to stay in business so long as it was able to provide service and so long as the drivers continued to work as Robert's drivers had. One of the drivers asked what pro- tection Rainbow could give them. Kolt replied that the Company could not afford to give 24-hour protection, but would provide protection while the bus was in operation. A driver who had not driven for Rainbow prior to the picket- ing asked what status he and others who came to work for the Company after the picketing started would have after the picketing ceased. Kolt stated he felt obligated to take care of drivers who showed their loyalty to the Company by working during the picketing by giving them a higher se- " Sun Tours and Hawaiian Holidays. " Fujimoto, Martinez, Kaiihue. and Kaopuiki. '" Walter Nelson, Pablo Ripani. Henry Hanalei Kaaihue, Richard Yama- naka, and Rickard Kekona. 2o By this time the pickets were also carrying signs saying Robert's was unfair. 593 niority status than those who failed to support the Com- pany or refused to work while Rainbow was picketed. Many of the original group of 19 met again across from the picket line on Monday morning, January 31. Sanford reported he had contacted the ILWU and its representative informed him the ILWU and IBT had agreed that neither wold seek to organize the employees of an employer where the other had previously initiated an organizational effort and, since the IBT had made a previous attempt to organize TA's drivers, the ILWU would not represent them. The group decided to seek IBT representation and to respect the IBT picket line. Iho asked whether the Company should be informed. He was authorized to contact the Company's dis- patcher and advise that they were respecting the picket line and would not be in to work and so advised the dispatcher. The group moved its meeting over to the Pawaa fire station and were joined by McCreadie. McCreadie was advised of their decisions; he informed them that several new drivers had been hired2' and the Company intended to hire still others, so the longer they stayed out the less the likelihood they would be reinstated." During the day the group con- tacted the IBT, signed authorization cards, and were ad- vised by the IBT it would be unlawful for the Company to discharge them for respecting the IBT picket line.2 That evening most of the group2 attended a meeting at the Pawaa firehouse. They designated G. Wong as their spokesman, detailed questions they wished discussed with the Company (the seniority status of the former Hawaiian Scenic drivers and their preferential treatment, their senior- ity status, etc.), and invited Kolt to attend the meeting. When Kolt arrived, Wong attempted to discuss the ques- tions the group had raised. Kolt replied that he was not there to discuss company policies, but to tell them he needed their services and wanted them to return to work. A driver asked him what their current status was, i.e., had they been discharged. After some equivocation 6 in re- sponse to repeated inquiries if being replaced meant they had been fired, he told them if they wanted him to use the word fired, that was their status if they did not come back to work after the meeting." In response to inquiries con- cerning their status if they returned to work, Kolt criticized the group as lacking guts. depicted their refusal to cross the 21 Richard Yamanaka, Peter Sataraka, and Pablo Ripani commenced work as full-time drivers on January 31. While the seniority roster posted in late January lists Sataraka with a seniority date of January 17, the work records do not disclose he worked on that date or any date prior to January 31. 22 Henry Hanalei Kaaihue and Walter Nelson indicated their interest in going to work for the Company at the January 30 meeting at the Rainbow yard, provided they were assured full-time employment and retention when the picketing ceased, which Kolt promised. 23 McCreadie confirmed, however, that Sanford and Iwata had been dis- charged and would not be reinstated. 24 The group was so advised by Arthur Rutledge, the IBT president, and another IBT representative. Rutledge also told them the original purpose of the picket line was "informational." 25 Ten of the twelve alleged discriminatees were there (Sanford, Kaui. Iho. Akamine, Agao, Iwata, Louis, Kaaiai, Sat, and G. Wong); Fonseca and Kama did not attend, but were notified by the attendees what transpired at the meeting. Others of the original group of 19 also attended (Herman Kala- hiki and A. Wong). 26 Kolt first took the position they were replaced. 2' He stated he would return to the Rainbow yard after the meeting and remain there until midnight, and if they wanted jobs, to apply as individuals before midnight. DECISIONS OF NATIONAL LABOR RELATIONS BOARD IBT picket line as disloyalty, and stated he was taking care of his "loyal" employees, so the ones he accepted would go to the bottom of the seniority roster, i.e., the first full-time returnee would be no. 8 on the full-time seniority roster and the first part-time returnee would also be no. 8 on the part- time roster.28 Kolt also advised the group he needed their services, he felt the Company could survive the picketing, he felt they and the Company were being used as tools by the IBT, repeated the need for the Company to maintain its services in order to retain its customers and its need for their help, and stated if they wanted union representation any union other than the IBT was acceptable to him. The group decided against accepting Kolt's offer of reem- ployment under the conditions stated. The following day (Tuesday, February I) Henry Hanalei Kaaihue and Walter Nelson commenced work as full-time drivers for the Company. That same day Kolt met with Rutledge. Rutlege asserted he represented a majority of the Company's drivers and requested recognition and a contract. He also requested in- formation concerning the Company's current wage scales, fringe benefits, etc. Kolt handed him a document listing the requested information, but said the Company could not af- ford to go union at its present growth stages, it could not survive. Kolt was not convinced a majority of the drivers wanted IBT representation and declined to recognize the IBT or state they had an agreement,' 9 suggesting they let the matter be determined by an NLRB-conducted election. Rutledge then asked Kolt to take the old drivers back, with full seniority. Kolt replied he would take them back, but would only give them seniority behind those who stayed with him. At Rutledge's suggestion that evening that they apply unconditionally for reinstatement to the Company and his assurance that such applications would be accepted by the Company, most of the discriminatees ° went to the Rain- bow yard the next morning (Wednesday, February 2) to apply for reinstatement. They entered the yard as a group and were addressed by Kolt outside his office. Kolt stated there were no full-time openings, but he would accept their applications for part-time employment as and when needed. The group consulted with the IBT and were ad- vised to file the requested applications. They returned and did so. On completing their applications, Kolt interviewed them one at a time, reviewed their applications and sup- porting documents (driver's license, health card, etc.), and in most instances told the applicant he would call him if and when his services were needed, but never called the applicant thereafter.3' In Kaui's case, Kolt noted Kaui's health card had expired. Kaui explained he had telephoned the doctor for a physical examination in order to renew his card and could not get an appointment until February 4 2 1" The full-time drivers listed on the full-time seniority roster below alleged discnminatees Sanford, Kaui, Iho, Akamine, and Agao were seven in num- ber. The record does not disclose the identity of the seven part-time drivers who worked during the picketing. 29 Rutledge asked Kolt to authorize him to tell the drivers who had signed IBT cards that they had an agreement at a meeting he had scheduled with the card signers that evening. 0 All but G. Wong. 1 Agao, Akamine, and Iho's testimony to this effect was uncontradicted and is credited. 12 Kaui kept the appointment and secured a valid health card on February 4. Kolt asked him to wait outside. While Sanford initially withdrew upon Kolt's advice that only part-time employ- ment was available, he later returned and stated he would accept any employ. Kolt asked him if he was ready to go to work that day. Sanford replied in the negative, stating he had plans for the rest of the day, but was available the following day. Kolt suggested he check later to see if work was available the next day. When Louis entered Kolt's of- fice for his employment inteview, he did not have his health card with him and was instructed to bring it in. He did so and was advised there was work for him the following day. He worked on February 3 and has worked in a part-time capacity for the Company since that date. Kolt interviewed Kama, found his documents satisfactory, and asked him if he was available for work. Kama replied affirmatively and was instructed to check later and he would be advised if there was work for him. Kolt checked Sai's documents and found them satisfactory. He expressed his distress at seeing Sai outside the picket line on Sunday, January 30, after receiving a report Sai had called in sick, and asked if he worked at the firehouse that day. Sai replied he was not scheduled to work at the firehouse that day and was not feeling well, but came down to the picket line to try to find out what was going on. Kolt testified he told Sai he had more respect for those who stated they were not going to work because of the picket line and he did not want to employ a liar; that if he wanted to hire Sai he would call him, but did not think he would call. Sai denied Kolt made such statements, but simply told Sai he would call him if his services were needed. I find Kolt raised a question concern- ing Sai's presence at the picket line (both testified to that), but did not call Sai a liar or tell him he would not be called, simply stating he told Sai not to call the Company, it would call him if it wanted to hire him, and no more. Kolt found Fonseca's documents satisfactory and asked him if he was available that day. Fonseca replied negatively. Kolt then told him to check later and he would be advised if work was available for him. Iwata was interviewed, his documents found satisfactory, and returned to work on February 3. Kaaiai was interviewed, his documents approved, and in- structed to check and he would be advised if work for him was available. G. Wong did not appear to fill out an appli- cation and submit to an individual interview with Kolt that morning. Other members of the original group of 19 (not named in the complaint as alleged discriminatees) filled out applications and were assigned part-time work along with Louis and Iwata (Herman Kalahiki, William Kamaka, and A. Wong)."3 Following their individual interviews, the alleged dis- criminatees (with the exception of G. Wong) gathered in the yard outside Kolt's office. Kolt came outside and an- nounced he had work that day for only one of the group and since Kamaka was the first member of the group with proper qualifications to come through the door, he was put- ting Kamaka to work. The group then dispersed. As they left the yard, Sai met G. Wong coming to put in his applica- tion and informed G. Wong of Kolt's position and his an- nouncement there were no present work opportunities. On the basis of that advice, G. Wong did not file an application 11 All five had previously been part-time employees. 594 RAINBOW COACHES for reinstatement that day. Later in the month he went to the yard to file an application and was advised by McCrea- die that McCreadie could not furnish him an application, he would have to see Kolt (Kolt was not there). G Wong made no further attempt to secure reinstatement. Towards evening the same day, most of the group re- turned to the yard to secure their paychecks for the previ- ous work period (the Company paid its employees every other Wednesday for the 2 weeks prior to each payday). Kolt informed the group there was no work for them the following day (February 3).'4 Sanford, Kaui, Iho, Akamine, and Agao, all alleged dis- criminatees, full-time drivers, and numbers I through 5 on the full-time seniority roster prior to the commencement of the IBT picketing, have never been recalled by the Com- pany either in a full-time or part-time capacity; neither have alleged discriminatees and part-time drivers Sai, Kaaiai, Kama, and G. Wong. Alleged discriminatees and part-time drivers Louis, Iwata, and Fonseca have been re- called, with seniority dates from the date of the first such recall. Additional members of the original group of 19 and part-time drivers Kamaka, Kalahiki, and A. Wong have also been recalled; their seniority dates are not of record. The picketing continued until February 18, 1977. During the picketing, and particularly in the early period, there is no question the Company lost business" and income.s B. Analysis and Conclusions 1. The alleged threats Kolt made it clear in his remarks to the drivers in his December 15, 1976, meeting with them the Company was unprofitable when he purchased an interest in it; that he had taken accounts away from the Company's unionized competitors because they preferred to employ the Company for their transportation needs because it was nonunion; that he was aware the company wage scales, etc., were lower than those of the Company's unionized competitors; and that his staying with the Company, retaining the new ac- counts he had secured, his acquisition of additional new accounts, the consequent profitability of the Company, its ability to pay for and retain the newly purchased buses, and its ability to bring their wage scales, etc., up to parity with the Company's competitors were all contingent upon their not seeking and securing union representation. Kolt obvi- ously was alert to the drivers' interest in such representation (by the questions the drivers raised concerning that possibil- ity at both the October and December meetings) and aware (by his promises of wage parity) of the appeal union repre- sentation had by virtue of the higher wage scales, etc., in 3' Louis and Iwata, however, were given work assignments for February 3 by telephone. Kamaka was given a work assignment on February 2. The record does not disclose when or how Kalahiki and A. Wong received their work assignments. 3) Sunset Hawaii-Hawaiian Beachcomber Tours, associated companies, notified Kolt on February I, 1977, that they were discontinuing use of Rain- bow until the labor dispute was concluded. ' On January 29 the Company farmed out 145-1 /2 hours of work received from its customers to its competitors for performance; the Company nor- mally charged its customers between $24 and $32 per hour for its services. On January 30, the Company farmed out 119-1/2 hours: on January 31, 138- I/2 hours. the contracts between his competitors (including his former employer, Hawaiian Scenic) and the IBT and ILWU. The implication Kolt left with the drivers was clear- seek union representation and the Company loses my ser- vices, the accounts I have brought in, any possibility of additional new accounts, profits, the new buses, any possi- bility of wage increases and, obviously, a question of whether the Company and their jobs would continue. Such an implied threat clearly interfered with, restrained, and corced the drivers in the exercise of their right to seek representation from a labor organization for the purpose of bargaining collectively with the Company concerning their wages, rates of pay, hours, and working conditions, and I so find and conclude. I therefore find and conclude the Company violated Sec- tion 8(a)(1) of the Act by virtue of Kolt's December 15. 1976, remarks noted above. 2. The alleged discriminatory discharges It is undisputed that Kolt discharged Sanford and Iwata on Sunday, January 30, 1977, when they refused to take their buses through the IBT picket line. It is similarly undis- puted that on the evening of Monday, January 31, 1977, Kolt told 10 of the 12 alleged discriminatees, including San- ford and Iwata and excluding Fonseca and Kama,3 7 they were discharged if they failed to contact him individually by midnight, agree to cross the IBT picket lines, and accept whatever terms of recall he offered them.38 I therefore find and conclude that on or before January 31, 1977, the Com- pany by Kolt discharged the 12 alleged discriminatees for refusing to cross the IBT picket lines and work on whatever terms Kolt offered them. The Company contends, however, the discharges were not unlawful because (I) the IBT picket line was unlawful; or (2) the dischargees respected the picket line because of fear of bodily harm; or (3) it was entitled to discharge them and hire permanent replacements for them in order to oper- ate its business. The Company contends that the picket was illegal be- cause the IBT picketing was an unlawful restraint of trade in violation of the antitrust laws, citing United Mineworkers of America v. Pennington, 381 U.S. 657 (1965); Allen Brad- ley Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U.S. 797 (1945); and Connell Con- struction Co., Inc. v. Plumbers & Steamfitters Local Union No. 100, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO, 421 U.S. 616 (1975). In each of these cases, however, the union had entered into an agreement with one employer or employer group to use its economic 17 Who I find were notified of Kolt's statements later. 31 Kolt testified he did not foresee a need for any more than I full-time drivers for some time (the size of his full-time driver complement pnor to January 29) The record does not disclose the size of his part-time driver complement prior to January 29 or the number the Company intended to retain on and after January 31. In view of his statement at the meeting that he intended to put all full-time and part-time drivers who demonstrated their loyalty to the Company by working during the picketing, ahead of any of the alleged discriminatees who applied; his disparaging remarks concerning their courage and loyalty to him; and the nature and number of job offers he made when they appeared on February 2. the nature and extent of Kolt's offer of reinstatement at the January 31 meeting is ambiguous at best. 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD power to force terms on another employer or employer group. There is no valid, probative evidence here that the IBT entered into an agreement with Hawaiian Scenic to restrain Rainbow's business." The Company also argues that the IBT picketing was unlawful in that it was second- ary in nature and violative of Section 8(b)(4) of the Act and/or unlawful in that it was recognitional at a time the IBT did not represent any Rainbow drivers and violative of Section 8(b)(7) of the Act. Findings have been entered that initially the pickets car- ried signs clearly identifying Rainbow as the picketed em- ployer and carrying the legend that Rainbow was paying substandard wages and its drivers were not working under a union contract. Findings have also been entered that Rut- ledge informed Rainbow's drivers that the initial purpose of the picketing was informational [to inform the public and persons doing business with Rainbow of its substandard wages (admittedly below those of Rainbow's unionized competitors) and that it was a nonunion operation]. Find- ings have also been entered that the pickets, a few days after the Rainbow picketing commenced, began to carry signs identifying Robert's as a picketed employer (presum- ably with similar messages). The Company cannot reasonably contend the Rainbow picketing was intended to bring pressure on another em- ployer to yield to IBT demands, since it is clear Rainbow was the target of the picketing because it was causing IBT members to lose job opportunities to the nonunion sector of the industry. So the Company contends the IBT picketing of Rainbow was secondary because the pickets marched across a gate shared by Rainbow and Robert's and a gate posted as one solely for Robert's use, thereby violating Moore Drv' Dock4" standards. In the circumstances of this case, it was the picketing of' Rainbow's operations, whatever gate the Rainbow buses went through, which motivated the alleged discriminatees' refusal to work. Even were the pick- eting of the gate allegedly designated as solely for Robert's use by pickets carrying Rainbow signs held to be unlawful, it is clear this would not support a finding that the picketing of the gate used by Rainbow and Robert's (the picketing which the alleged discriminatees respected) was unlawful. It is further noted that Kolt testified he farmed out a substan- tial portion of Rainbow's work to Robert's for performance by Robert's buses and drivers during the picketing; Rob- ert's certainly ceased to be an unoffending neutral to the IBT-Rainbow dispute at that point and became Rainbow's ally, which would justify picketing both gates. With reference to the claim of alleged 8(b)(7) violation, the evidence indicates initially that the picket line was not recognitional, a necessary ingredient to a finding of viola- tion of Section 8(b)(7), but rather informational [and the second proviso to Section 8(b)(7)(C) specifically excludes informational picketing from the coverage of the section]. While the picketing may have been converted into a recog- )9 Kolt's testimony that a former Hawaiian Scenic employee he hired told Kolt by telephone that he appeared at the IBT picket line the previous day because he had been told to do so when he reported for work is hearsay and falls far short of establishing a conspiratorial agreement between Hawaiian Scenic and the IBT to restrain Rainbow's business: is ambiguous: and the fact Hawaiian Scenic drivers were among the pickets is likewise insufficient proof of such conspiracy. 4 Sailors' Union of the Pacific. AFL (Moore Dry Dock Company)., 92 NLRB 547 (1950). nitional picket line after the alleged discriminatees (and possibly other Rainbow employees) signed IBT authoriza- tion cards and the IBT requested recognition as their repre- sentative (on the third and fourth day of picketing), the evidence is insufficient to support a finding that the picket- ing thereafter became unlawful in the absence of evidence concerning the nature of the petition that the alleged dis- criminatees (and possibly others) signed at the IBT hall for presentation to the NLRB Regional Office (it may have complied with the statutory requirement of a petition filing) or that the cessation of picketing by February 18 was suffi- ciently timely that a finding of Section 8(b)(7) is not sup- portable. For the reasons set out above, I find and conclude the Company has not demonstrated by substantial, probative evidence that the IBT picketing of Rainbow was unlawful and thereby deprived the alleged discriminatees of the pro- tection of the Act. Citing N. L. R.B. v. Union Carbide Corp., 440 F.2d 54 (4th Cir. 1971), cert. denied 404 U.S. 826 (1971), and other cases, the Company next contends the alleged discrimi- natees refused to cross the picket line because they feared bodily harm, not because they made common cause with the picketing union, and therefore their respecting the picket line was not activity protected under the Act. In a 1972 decision," the Board rejected the Union Car- bide holding, adopting the statement of the Trial Examiner in that case that: . .contrary to the court's holding in ULnion Carbide, the Board's decisions regard an employee's motive for honoring a picket line as irrelevant. Thus, in Cooper Thermometer Co., 154 NLRB 502, the Board said, at 504: [T]he focal point of inquiry in determining whether [an employee's] refusal to cross the picket line to perform production work was a protected activity must of course be the nature of the activity itself rather than the employee's motives for engaging in the activity. Accordingly, since I am required "to apply established Board precedent which the Board or the Supreme Court has not reversed," I regard as without merit the Respondent's contention that a refusal to cross a picket line is an unprotected activity when it is motivated by fear. Even if one were to apply the Union Carbide ruling in this case, the Company's argument lacks merit. While it may be true Sanford and others among the 12 alleged discrimi- natees failed or refused to cross the IBT picket line on January 29 and 30 because they feared violence to their persons.42 they met together on January 31 prior to the time Kolt discharged them, decided to stay together as a group, decided to secure IBT representation, secured assurances from IBT of such representation, and thereby joined cause with the IBT as employees of Rainbow on strike against it "I Congoleum Industries, Inc., 197 NLRB 534, 547 (1972). 42 Not all of the 12 alleged discriminatees respected the picket line on January 29 and 30 because of fear of bodily harm; many did so as a matter of principle. 596 RAINBOW COACHES because, as proclaimed on the IBT picket signs. Rainbow was paying substandard wages and they were not working under a union (IBT) contract. Thus, both on the basis of Board doctrine and under the facts and circumstances of this case. I reject the Company's contention that the 12 alleged discriminatees were engaged in conduct unprotected under he Act because some of their number may have refused to cross the IBT picket line on January 29 and 30 primarily due to their fear of bodily harm. The Company contends that in any event it was entitled to discharge its striking employees and hire permanent re- placements for them in order to maintain its business opera- tions, citing N.L.R.B. v. Southern Greyhound Lines, Division of Greyhound Lines, Inc., 426 F.2d 1299 (5th Cir. 1970); Redwing Carriers, Inc. and Rockana Carriers, Inc., 137 NLRB 1545 (1962), enfd. 325 F.2d 1011 (D.C. Cir. 1963), cert. denied 377 U.S. 905 (1964); and Swain & Morris Con- struction Co., 168 NLRB 1064 (1967), enfd. 431 F.2d 861 (9th Cir. 1970). While it is well settled that an employer has a right to terminate strikers and hire replacements for them in order to continue business operations,' the Board, with court ap- proval, has developed the doctrine that the employer's onlv motive for effecting such terminations must be to secure performance of the strikers' work (and not in retaliation for their withholding their services), and such termination is necessary to secure performance of that work." In this case, just the opposite occurred. The evening after the 12 alleged discriminatees informed McCreadie they were joining the IBT and supporting its picketing efforts against the Company, Kolt told them he would deal with any union other than the IBT; told them their respecting and joining the IBT cause demonstrated their lack of loy- alty as contrasted to the conduct of the other drivers who remained on the job; and advised them while he needed them, if they returned and if he offered them jobs, they would be at the bottom of the respective full-time and part- time seniority lists, behind the drivers who remained on the job. The Board has ruled on several occasions that an offer of reinstatement to strikers accompanied by an announce- ment that those who accept such offer will be accorded the status of new hires, with consequent loss of their previous seniority standing, is clearly retaliation for engaging in ac- tivities protected under the Act unrelated to any need to continue operations,4' and a violation of Section 8(a)(1) of the Act. Kolt's December 15, 1976, remarks to the drivers, his January 25 comments to Sai, and his remarks at the January 31 meeting all demonstrate Kolt's hostility to the IBT and anyone supporting it, particularly as the represent- ative of any of Rainbow's employees. Since Kolt also advised the drivers at the January 31 meeting that if they accepted his offer of reinstatement as new employees, the first full-time driver rehired would be number 8 on the full-time seniority roster and the first part- time driver rehired would also be number 8 on the part- a N.LR.B. v. Mackay Radiod Telegraph Co., 304 U.S. 333 (1938). Redwing Carriers, supra,' Swain 4 Morris, supra; Overnight Transporta- rion Co., 209 NLRB 691 (1974). "4 Decatursville Sportswear Co., Inc., 205 NLRB 824 (1973) Globe Molded Plastics Co., Inc., 204 NLRB 1041 (1973). time seniority roster, it is clear vacancies existed" at that time. I therefore find and conclude. by Kolt's January 31, 1977, discharge of the 12 discriminatees for refusing to go through their designated representatives' picket line and ac- cept the status of new employees at a time there were job vacancies, shows Kolt discharged the 12 alleged discrimi- natees in retaliation for their supporting the IBT picket line and not solely due to business considerations. I therefore further find that by such discharges Kolt violated Section 8(a)(1) of the Act. The Company next contended that the alleged discrimi- natees did not make an unconditional offer to return to work and therefore are not entitled to reinstatement: that Sai in any event is not entitled to reinstatement because he was discharged for cause; and that Kaui is not entitled to reinstatement because he was a supervisor. Since findings have been entered that the 12 alleged dis- criminatees were discharged for engaging in protected con- certed activities, the normal remedy is an order directing the employer to make a current offer to reinstate them to their former positions or, if those positions no longer exist, to substantially equivalent positions, and to reimburse them for any wage losses they have suffered between the date of their unlawful discharge and the date of such reinstatement. There appears little reason to depart from that remedy here, inasmuch as it is readily apparent the alleged discrim- inatees and their representative made it clear the alleged discriminatees desired reinstatement, with all rights restored. In any event, I find Sanford, Kaui. Iho. Akamine, Agao. Fonseca, Iwata, Kaaiai. Kama. Louis, and Sai uncondition- ally offered to return to work on February 2, 1977. and (i. Wong would have done so but for receiving a report that Kolt had refused to reinstate any of the I just named to their former positions and status. I further find, in accordance with factual findings entered heretofore, that Kolt did not discharge Sai on February 2. 1977, for cause, i.e., fbr calling in sick the previous Sunday when he was not in fact ill, but rather only questioned Sai about appearing outside the picket line after calling in sick and, after hearing Sai's explanation, accepting Sai's appli- cation and telling Sai he would be contacted if needed. As far as Kaui is concerned, it is undisputed that Kaui spent 85 to 90 percent of his time driving a bus and 10 to 15 percent of his time training and familiarizing other drivers on equipment; that Mike Akamine and Vernon Nelson also did such training; that Kaui was not authorized to hire or fire employees, did not hire or fire employees, and did not direct employees in the performance of their work. I there- fore find and conclude Kaui was not a supervisor within the meaning of the Act. It is true that Kaui did not have a valid "The full-time roster posted in late January 1977 listed Sanford. Kaui. lho, Akamine, and Agao as nos. I through 5 and V. Nelson, Kaopuiki. Fujimoto, P. Sataraka. Kaaihue, Martinez, and I. Sataraka as nos. 6 through 12 on the full-time seniority roster: moving the latter seven up would change their numerical order to I through 7. Since I. Sataraka left the Company's employ prior to January 29 (when the picketing commenced) and was not replaced, it appears Kolt was offering Sanford. Kaui, Iho, Akamine, and Agao reinstatement in seniority slots 7 through I if the) accepted his offer of employment as new hires. the reverse of their seniority positions pnor to joining the IBT. The record does not disclose the positions of the part-time alleged discriminatees on the part-time seniority roster, but it may be pre- sumed reasonably that one or more of them were numbered between I and 7 prior to joining the IBT. 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD health card at the time he was interviewed by Kolt on Feb- ruary 2, 1977. It is undisputed that Kaui's health card ex- pired on January 23, 1977; that McCreadie was aware of such expiration, aware that on January 21, 1977, Kaui scheduled a medical appointment for the purpose of secur- ing its renewal for February 4, 1977, and authorized Kaui to continue to drive, which he did, between January 23 and 28, 1977; and that Kaui secured a renewal of his health card on February 4, 1977. On the basis of the foregoing, I find Kaui is entitled to reinstatement under the Act. CONCLUSIONS OF LAW 1. At all pertinent times Rainbow was an employer en- gaged in commerce in a business affecting commerce and the IBT and ILWU were labor organizations within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. At times pertinent Kolt and McCreadie were supervi- sors and agents of Rainbow acting on its behalf within the meaning of the Act. 3. At times pertinent Kaui was not a supervisor of the Company acting on its behalf. 4. Rainbow violated Section 8(a)(l) of the Act on De- cember 15, 1976, by Kolt's statement that Rainbow would lose several major accounts that he brought in, its new buses, and his continued efforts and participation in and on behalf of Rainbow if they sought and secured union repre- sentation. 5. Rainbow violated Section 8(a)(1) of the Act on Janu- ary 31, 1977, by discharging employees Sanford, Kaui, Iho, Akamine, Agao, Fonseca, Iwata, Kaaiai, Kama, Louis, Sai, and G. Wong in retaliation for their support of the IBT. 6. The above unfair labor practices affected commerce as defined in the Act. THE REMEDY Having found the Company interfered with the rights of Sanford, Kaui, Iho, Akamine, Agao, Fonseca, Iwata, Kaaiai, Kama, Louis, Sai, and G. Wong to engage in pro- tected concerted activities by discharging them for refusing to cross the picket line at its premises, I shall recommend the Company be directed to cease and desist therefrom and take the following affirmative action designed to effectuate the purposes of the Act: Offer the 12 persons just named reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, with full restoration of their seniority and other rights and privileges as they existed prior to their discharge, and reimburse the 12 per- sons for all wages and other benefits lost between the date of their discharge and their reinstatement, with the lost wages and interest thereon computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),' 7 and post appropriate notice thereof. Having further found that the Company interfered with the rights of its employees to seek and secure union representation by threatening the employees with loss of business, loss of new buses, and loss of the services of the manager who brought in major new business (and therefore an implied threat of loss of their 47 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). jobs) if they sought and secured union representation, I shall recommend the Company be directed to cease and desist therefrom and post appropriate notice thereof. On the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I recommend the issuance of the following: ORDER" The Respondent Rainbow Tours, Inc., d/b/a Rainbow Coaches, Honolulu, Hawaii, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with the right of its employees to seek and secure union representation in violation of Section 8(a)(1) of the Act by threatening them with loss of business, new buses, the services of the manager who brought in that new business, and loss of employment if they sought and se- cured union representation. (b) Interfering with the right of its employees to engage in protected, concerted activity in violation of Section 8(a)(1) of the Act by discharging them for refusing to cross a picket line established at its premises. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Henry Sanford, Ralph Kaui, Ross Iho, Michael Akamine, Jay Agao, James Louis, Paul Iwata, G. Lane Kaaiai, Ronald Sai, Garrett Wong, Miles Fonseca, and Eric Kama immediate and full reinstatement to their for- mer jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges. (b) Make Henry Sanford, Ralph Kaui, Ross Iho, Mi- chael Akamine, Jay Agao, James Louis, Paul Iwata, G. Lane Kaaiai, Ronald Sai, Garrett Wong, Miles Fonseca, and Eric Kama whole for any loss of earnings they may have suffered as a result of their discharges, as provided in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Honolulu, Hawaii, copies of the attached notice marked "Appendix."49 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's rep- ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and reconnmended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '9 In the event that 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." 598 RAINBOW COACHES resentative. shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 599