Top of Waikiki, Inc.

76 DECISIONS OF NATIONAL Top of Waikiki, Inc. and Hotel, Restaurant Employees & Bartenders Union, Local 5, AFL-CIO. Case 37-CA-526 May 21, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On December 3, 1968, Trial Examiner William E. Spencer issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Top of Waikiki, Inc., Honolulu, Hawaii, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS HEREBY FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent violated Section 8(a)(1) and (3) in the discharge and refusal to reinstate Paul Nieblas. 'We agree that when Respondent disciplined and later discharged Kochi, Leslie, and Yamaguchi, it interfered with, restrained, and coerced its employees in the exercise of their protected rights under Sec. 7 of the Act, and thus violated Sec . 8(a)(1) of the Act. In these circumstances, and as the remedy would be the same in and event, we find it unnecessary to consider whether Respondent's actions in this regard also violated Sec. 8(a)(3) of the Act. LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM E. SPENCER, Trial Examiner: Pursuant to a charge filed January 4, 1968, a first amended charge filed June 7, 1968, and a second amended charge filed July 16, 1968, by the Union herein, the General Counsel of the National Labor Relations Board, the latter hereinafter called the Board, issued his complaint dated July 17, 1968, alleging that the Respondent herein engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent in its duly filed answer denied that it had engaged in any of the alleged unfair labor practices. Pursuant to due notice, a hearing in this matter was held before me in Honolulu, Hawaii, on August 27, 28, 29, 1968, with all parties represented and participating. Upon the entire record in the case, my observation of the witnesses, and with consideration of the briefs filed with me by the General Counsel and the Respondent, respectively, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Respondent, Top of Waikiki, Inc., is a Hawaii corporation with an office and place of business in Honolulu, Hawaii, where it is engaged in the operation of a restaurant and bar called Top of Waikiki, and where in the course and conduct of its business during the past year, it received a gross revenue in excess of $500,000 from the sale of food and beverage products. 11. THE LABOR ORGANIZATION Hotel, Restaurant Employees & Bartenders Union, Local 5, AFL-CIO, the Charging Party and the Union herein , is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Respondent's Operations As accurately stated in Respondent's brief, the Top of Waikiki is a restaurant operation in the Waikiki Business Plaza Building in Honolulu. The operation consists of a revolving restaurant on the 21st floor of the building. On the 20th floor of the building is the food preparation area as well as the employees' room and employees' locker area along the hall. On the 19th floor is the Waikiki Lau Yee Chai Plaza Room, hereinafter called the Plaza Room, which is a banquet room available for special parties, open every night except for Mondays. The Top of Waikiki is operated everyday for lunch and dinners. On the ground floor level of the Business Plaza Building is a coffee shop known as "Food Haven" located near the entrance to the elevator area. This coffee shop is owned by operators independent of Respondent. At the Top of Waikiki there are normally four to five waitresses in each of four sections or stations and each station also has a busboy making the normal complement on the floor of 24 employees excluding the bartenders. The Plaza Room when operating as a restaurant normally has four employees. When there are large banquets then 176 NLRB No. 6 TOP OF WAIKIKI additional girls who are on an "on-call" basis are called in. The Respondent maintains a permanent list of on-call girls from which it fills its requirements as they arise. Respondent's managerial staff is composed of Patricia Chang, manager; Lillian Lee, assistant manager; Ellsworth Wong, assistant manager; and Jane Look, head waitress, all admittedly supervisors within the meaning of the Act. William Mau is the controlling stockholder of Respondent's operations. B. Organizational Activities The Union began organizing Respondent's employees about the middle of December 1967. Michael Leslie, a waiter, a prime mover in organizational activities, obtained some 25 signatures to union authorization cards prior to January 1, 1968. David Kochi, a waiter captain, obtained some 10 signatures to cards during the same period. Whether Respondent had knowledge of these activities at any time prior to December 31, 1967, is a matter to be resolved. C. The Basic Issues The principal issues are whether the Respondent disciplined and subsequently discharged its employees David Kochi, Michael Leslie, and Dwight Yamaguchi, because of their union and/or protected concerted activities; discriminated against its employees Carol Kamalii, Anthony Chang, Patricia-Anne Boyd, Warren Wong, Paul Nieblas, Larry Higa, Sharon Stockier, and Jean Lok, because of their activities in going on strike in support of their fellow employees named above; and discriminated against Irene Krausnick and Charles Jones because of Respondent's belief that they had engaged in union and/or concerted activity. Subsidiary issues are whether the activities engaged in by the aforesaid employees were protected union or concerted activities, and whether certain of these employees did in fact quit their employment with the Respondent. The employees named above, with certain exceptions, will subsequently be referred to by their surnames. D. The Dispute Over the Pooling of Tips The issues herein arose out of a dispute between the Respondent and certain of its employees concerning the pooling of tips. Normally and customarily the tips are pooled by the employees assigned to each station, and are pooled and distributed by the employees themselves at the end of each work shift. On December 31, 1967, Head Waitress Look advised Kochi, a waiter captain - a waiter captain was assigned to each station - that the tips received that night were to be turned over to Respondent's cashier and that the tips thus pooled would include employees of the Plaza Room who would share with employees of the Top of Waikiki in their distribution. Certain employees normally assigned to the Top of Waikiki were assigned to the Plaza Room on this single occasion. Kochi relayed these instructions to members of his station including Leslie, Yates, and Nancy Miyahira, who, together with Kochi, objected to this change in the method of tip pooling and distribution, as did some others as word of management's directive spread. Manager Chang was made aware on the evening of December 31 that there was some dissatisfaction being expressed among the employees, and on January 1, 1968, called a meeting of staff members and waiter captains and 77 questioned the latter concerning the identity of employees who had complained about the changed method of tip pooling and distribution. Waiter Captain Lola Miyagi named Yamaguchi as one of these, and Kochi named himself, Leslie, Yates, and Miyahira. E. Management's Action in Disciplining the Known Dissidents At the conclusion of the discussion at this meeting, Manager Chang said that perhaps management should relieve or discharge the employees who were "grumbling" about the changed method of tip distribution, whereupon Assistant Manager Wong said that he thought discharge would be too severe and suggested "suspension" as a sufficient penalty. Following the close of this meeting, Chang authorized Wong to place Kochi, Yamaguchi, Leslie, and Yates on call, and Wong was instructed to inform Head Waitress Look to so notify the affected employees. She did. On January 2, Chang met with the managerial staff and it was then decided to call a meeting of employees on the following day for the purpose of advising them of management's position. The employees were notified and the meeting was held as scheduled in the Plaza Room on the morning of January 3. Kochi, Yamaguchi, and Leslie were on hand to attend the meeting but were told by Look, prior to the meeting, that their attendance was not wanted by management. When Chang was advised of their presence in the building, she instructed Wong to investigate. Having placed these employees on call, she did not expect that they would show up for the meeting, and inasmuch as the meeting was for the primary purpose of explaining to the employees why they had been placed on call she did not want them in attendance. While still in the building, the three employees were approached by Wong who told them that they were discharged. Wong testified that he asked them who had authorized them to attend the meeting, and when they stood mute, he told them that "because there was no authorization given to them to attend this meeting . they were terminated as far as [he] was concerned." He further testified that he "got kind of worked up", and thought these employees were letting him down, - apparently because he had previously prevailed on Chang not to suspend them but to place them on call, a lesser penalty. "They were good workers," he testified, "and this is why I went to bat for them." That he had the authority to discharge is not questioned. F. The Strike At the meeting with employees in the Plaza Room on the morning of January 3, Manager Chang explained Respondent's position on the pooling and distribution of tips on New Year's Eve, and was joined in her remarks by Respondent's controlling stockholder, Mau. In a question and answer period which ensued, several employees protested the singling out of four employees for disciplining when other employees had also objected to the change in pooling arrangements. Miyahira said she felt the pooling was wrong and she should be subjected to the same disciplinary action. Chang testified that she told Miyahira and Krausnick that if they wanted to place themselves in the same position with the disciplined boys, they should feel free to go and the door was open. After the meeting was adjourned and Respondent's representatives, with the exception of Look, had left the room, there was discussion among a group of employees 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remaining, including Kamali ►, Boyd, Mae Doi, Lok, June and Warren Wong, as to what action if any should be taken with respect to Respondent's disciplining of the four employees. As these employees prepared to leave, Look inquired, "Are you walking out?" and one of them answered, "Yes." Chang also had individual conversations with several of the employees, including Miyahira, Kamalii, Boyd, June Wong, Lok, and Krausnick, who indicated, for one reason or another, that they would not report for work. Immediately following the Plaza Room meeting, a group of the disaffected employees met with Kochi, Leslie, and Yamaguchi in the Food Haven on the ground floor of the building and there discussed measures to be taken to protest the firing of these three employees. It having been decided to seek the Union's aid and direction in the matter , the employees went to union headquarters where they met with the Union's president, Arthur A. Rutledge. As a result of this conference, and a later one the same day, Rutledge addressed two letters to Respondent's Chang, the first a claim of majority representation and a request to bargain, the second, delivered to Chang about 8:30 p.m., bearing this text: Our Union requests unconditional reinstatement of all employees of the Top of Waikiki who walked off the job today and all employees who did not show up for work as the result of the dispute generated by management's request that tips be pooled for New Year's Eve. We understand that as a result of your questioning your waiter captains you suspended the following employees: Michael Leslie, David Kochi, Dwight Yamaguchi, Brad Yates, and Charles Jones, from work. We ask, also, that they be unconditionally reinstated. Management took the position with respect to the employees who walked off the job on the morning of January 3, that they had quit. Accordingly, reinstatement to the jobs they held at the time they walked off was not offered them, though Manager Chang testified that had they reported on the evening of January 3, they would have been put to work, testimony somewhat at variance with her further testimony that when Anthony Chang on delivering Rutledge's first letter to her, asked if he was working that night, she replied, "Tony, you walked out at lunch. As far as I'm concerned that is insubordination and you are out." G. Conclusions With Respect to Discrimination Because of Union Activities There is some evidence that Respondent, through its supervisory staff, was aware of its employees' organizational activities prior to New Year's Eve but I consider it too slight to attribute to it any part of Respondent's initial action in disciplining and later discharging Kochi, Leslie, and Yamaguchi . Respondent did of course learn of its employees' union activities upon receiving a call from Rutledge, and the two letters from him on January 3, the first of which was delivered by hand to Manager Chang about 2 o'clock on the afternoon of that date, but the discharges had already occurred at that time. Assuming company knowledge of union activities prior to the discharges, I still would not find that they were predicated on that knowledge because it is clear that it was the three employees' expressed opposition to the changed method of distributing tips, and nothing else, that caused their discharge. H. Conclusions With Respect to Concerted Activities Respondent argues vigorously that Kochi, Leslie, and Yamaguchi, as well as the employees who later left their jobs, acted individually in their respective protests over the pooling of tips or the treatment accorded these three employees, as the case may be, and, therefore, that the action taken by them was not "concerted" within the meaning of the Act. First, as to Kochi, Leslie and Yamaguchi. It is clear that employee reaction, some of it hostile, to Respondent's change in the method of distributing tips on New Year's Eve, came swiftly as employees learned of it, and Kochi, Leslie and Yamaguchi, among others, openly voiced their opposition in conversations occurring between employees, sometimes in the presence of managerial representatives. True, there was no organized protest - there was hardly time for that -- no formal meetings, no designation of spokesmen, but it is equally true that no one of these employees stood alone in his voiced reaction to the company directive. Basicly, it was that other employees agreed with these three in their opposition to the company directive and felt that the three had been unfairly singled out for disciplinary action, that caused the walkout. It seems to me that when in agreement among themselves, no matter how informally, two or more employees assert a position in opposition to a company rule or proposal affecting their wages or working conditions, a position which relates to and affects an entire group, they are properly held to have acted concertedly within the meaning of the Act. Expressions of opinion and statements of position almost always precede an organized effort on the part of employees to obtain redress of grievances, real or imagined, and to extend the protection of the Act only after "formalized" action has been taken, would be to cut off such action at its source and thus to render it futile. The protection of the Act knows no such limits. As a matter of fact, a single employee has been held to have engaged in concerted activities when he single-handedly circulated a petition in a matter which related to the working conditions of a group. Salt River Valley Water Users' Association v. N.L.R.B.. 206 F.2d 325 (C.A. 9), enfg. 99 NLRB 849. The same reasoning, I think, applies in the case of the employees who left their jobs in protest of the discharges of Kochi, Leslie, and Yamaguchi. It is true that not all of them told Manager Chang or other supervisory personnel that they were refusing to work because of the discharges, and some gave reasons other than that for not reporting for work. Higa, for instance, left for a doctor's appointment and at the time of his leaving intended to return to work on the dinner shift. Tony Chang didn't "like this wildcat sort of thing, because it wasn't organized," and testified that it was only at the meeting at the Food Haven that it was decided to make the walkout a "group" activity. The error in Respondent's reasoning, as I see it, is that it would bisect the employees' activity by drawing a line between the initial walkout and what followed almost immediately thereafter in the Food Haven and, later, at Rutledge's office, where what began as a spontaneous protest took on direction and cohesiveness. By thus bisecting the walkout activity, Respondent would deny it the element of concertedness and pin the label of "quit" on those who initially left their jobs. TOP OF WAIKIKI Obviously, when these employees left their jobs they had no plan of action in mind. Inexperienced in organizational matters they were doubtless confused and uncertain as to a future course of action. But they acted in concert, after discussions among themselves and with management, and in protest over the discharges. And, in any event, their entire course of action on January 3, and not some segment of it, is the determinative factor. It matters not that Higa initially left to keep a doctor's appointment and at the time of his initial leaving intended to return for the night shift, or that Tony Chang initially conceived of the walkout as a "wildcat sort of thing." They both became a part of the protesting group and are not properly viewed, as Respondent would have us view them and all others who initially walked out, as "quits." All employees who engage in a strike or other concerted action which takes them away from their jobs, may be said to have "quit" for the duration of the said activities, and it is not unusual for an employer to defend any discriminatory action taken with respect to such employees on the ground that they had quit and, therefore, no longer had employee status. But it was long ago decided that employees engaging in a strike or other protected concerted activities do not thereby lose their status as employees. I. Conclusions on Whether the Concerted and/or Union Activities Were "Protected" I have not thus far gone into the merit or lack of it in Respondent's directions for the pooling of tips on New Year's Eve which gave rise to the controversy, and I do not intend to do so now. Normally, the employees handled their own tip money and normally tips from patronage of the Top of Waikiki were not pooled with tips from the Plaza Room. Admittedly, New Year's tips in the Plaza Room usually were below tips received by employees of the Top of Waikiki. Respondent had its own reasons for changing the method of the pooling and distribution of tips and I am not about to say they were not good reasons. On the other hand, employees of the Top of Waikiki had their reasons for objecting to having their tips pooled with employees of the Plaza Room and distributed through the company's cashier, and I am not about to say they were not good reasons. All that is needful for me to say in this matter is that a controversy arose out of Respondent's action and it was a controversy of substance. The employees not unreasonably regarded tips as a part of Respondent's wage structure. Respondent's Mau at the meeting with employees on January 3, referring to a prepared chart, estimated that tips annually amounted to $25,000 for the employees of each station, or approximately $450 to $500 a month for each employee. Whether or not this estimate was accurate is beside the point: the point is that tips admittedly constituted a very substantial part of the remuneration each employee received for his services ru Respondent's employ. It follows, as indeed it must, that concerted activities with respect to the pooling and distribution of tips falls within the protected category inasmuch as it was for "mutual aid or protection" within the meaning of Section 7 of the Act. When, therefore, Respondent disciplined and later discharged Kochi, Leslie, and Yamaguchi for having engaged in the said concerted and/or union activities, it interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, in violation of Section 8(a)(1) and (3). It is equally clear the 79 group of employees who left their jobs, or failed to report for work , from the time and date of the walkout had the status of unfair labor practice strikers inasmuch as they acted concertedly in protest of Respondent 's unfair labor practices, and, accordingly, were entitled to reinstatement immediately upon application.' They were not required to repeat the request contained in Rutledge 's second letter. J. The Application for and Denial of Reinstatement The Union in the first letter it dispatched to Chang on January 3, claimed majority representation and requested bargaining. Its second letter on the same date made further reference to bargaining and also requested reinstatement "of all employees of the Top of Waikiki who walked off the job today and all employees who did not show up for work as the result of the dispute generated by management's request that tips be pooled for New Year's Eve." We are not here concerned with the Union's bargaining request or whether such request was or was not valid. A labor organization without attaining majority status may serve as the agent for employees who have designated it their agent and the Respondent in honoring its reinstatement request would in no way have been construed to have recognized it as the bargaining representative of all its employees in an appropriate unit. In short, the reinstatement request was valid and the Respondent, under the facts of this case, was bound to honor it. It failed and refused to do so, and thereby subjected itself to the remedial order herein. The reinstatement request, with exceptions previously noted, was in general language but there does not appear to be any question that all of the employees named in the complaint were to Respondent's knowledge and/or belief involved in the walkout, with the possible exception of Jones and Nieblas. Jones was not on duty on January 2 and did not participate in the events of January 3. He was, however, specifically named in the Union's letter of January 3 demanding reinstatement of the striking employees. He reported at the Top of Waikiki on January 5 to pick up his check and asked if he was scheduled to work that night. The reply was in the negative. In response to his call on January 6, he was told to report to work but when he did so he was told by Chang that he had been replaced for that evening because he had not personally contacted Look about coming to work. He left after working some five minutes. He worked the following ten days but only about 22 hours a week whereas he had previously worked about 38 hours. Thereafter, he was put back on regular schedule. Respondent offered no satisfactory explanation for what otherwise appears to have been discriminatory treatment of this employee, and the only persuasive reason I can find on this record is that Respondent reasonably assumed because of the appearance of his name on Rutledge's reinstatement request, that he was one of the protesting group. If this was Respondent's motivation in denying him the same hours of employment as previously, and I think it was, its conduct with respect to him was as violative of the Act as if he had actually walked off his job with the other employees. A question was also raised with respect to Stockier. Chang testified that she was told by Look that Stockier 'It may be argued with persuasiveness that Respondent discharged these employees, or certain of them, as they walked out, and, therefore, that they are properly treated as dischargees , but the matter is fairly academic in view of Rutledge's prompt reinstatement demand. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was quitting for reasons of a personal nature. Look, though testifying for the Respondent, made no mention of such a conversation with Stockier, and Stockier herself testified that she never informed anyone that she was quitting. From this it appears to me that she is properly included in a reinstatement order. This is true, also, of Warren Wong. Chang testified that when on January 4 Wong called in to ask if he was on schedule - as he normally would have been - Look, who was on the same telephone line, replied, "No, you are not on schedule. You didn't report last night to work," to which Wong responded that he quit. Look, though testifying, did not corroborate Chang. Wong denied that he told anyone in management that he quit. He testified that on walking out he had a conversation with Chang in which Chang asked him if he was going to work and he replied, "No." He admitted that he also told her that he "didn't need the money", but testified that in saying this he had reference to the tips. Had he actually intended to quit when he walked out, or later, he would hardly have called in on January 4 to inquire if he was scheduled to work. Chang may very well have equated his telling her that he was not going to work with quitting his job, it apparently being her position that all employees who did not report for work on January 3 quit their employment. Nieblas, one of the alleged discriminatees, presents a more difficult problem. He was not specifically named in Rutledge's reinstatement demand, as was Jones, and he did not actually participate in the walkout. He was, however, present with the group at the Food Haven. He went there when he was waked and told by his roommate, Leslie, about the meeting . He testified, "As for me, I would have just went back to sleep, but I said, `Well, I better go down there."' He also went with the group to Rutledge's office, but did not recall much of what happened there because all he "was thinking of was getting - finding myself another job." He did not report for work that day, thinking that because of his association with Leslie, "the instigator of it all" he would "probably get terminated." He did report on January 4 to see if he was on schedule but apparently was unable to see Look. He admitted, however, that in a telephone conversation with Look on that date he told her, in substance, "I quit. I don't want to work there any more . I know you want your keys. I'll take them back to you." (Apparently in his janitorial capacity he had certain keys to Respondent's premises in his possession and these he returned on January 4.) At another point, Nieblas testified, "I was willing to work there, stay there. In fact, I wanted to." Because of his failure to report for work on January 3, Respondent may well have considered Nieblas one of the striking group, and it may well be that when he told Look he quit, that he did not want to work there anymore, he was prompted by the belief that he could not, in any event, obtain reinstatement. He doubtless knew that others participating in the walkout had not been returned to their regular schedules of work. It is by no means clear, however, that anyone in authority told him that he was not scheduled to work on January 4 and thereafter, and once he had volunteered in such positive terms that he had quit, an offer of reinstatement should hardly have been expected. I shall recommend dismissal of the complaint with respect to Nieblas, and find with respect to all others named in paragraph VIII of the complaint, Krausnick, Kamalii, Anthony Chang, Boyd, Warren Wong, Higa, Stockier, Lok, and Jones, that on and after January 3, 1968, with respect to all of them except Jones, and on and after January 5 with respect to Jones, that the Respondent denied them reinstatement to the positions they held prior to the walkout on January 3, in violation of Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The Respondent having discharged certain of its employees because they engaged in union and concerted activities' and having refused reinstatement to certain others of its employees for the same reason , it will be recommended that the Respondent offer David Kochi, Michael Leslie, Dwight Yamaguchi, Carol Kamalii, Anthony Chang, Patricia-Anne Boyd, Warren Wong, Larry Higa, Sharon Stockier, Jean Lok, Irene Krausnick, and Charles Jones, immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered because of the discrimination against them , by payment (1) to Kochi, Leslie, and Yamaguchi of a sum of money equal to that which they normally would have been paid in Respondent's employ from the date of their respective discharges on January 3, 1968, to the date of Respondent's offer of reinstatement; and (2) by payment to Kamalii, Anthony Chang, Boyd, Warren Wong, Higa, Stockier, Lok, Krausnick, and Jones of a sum of money equal to that which they normally would have been paid in Respondent's employ, with respect to all except Jones, from the date of the letter requesting their reinstatement dated January 3, 1968, and with respect to Jones, from January 5 when he first reported for reinstatement, to the date of Respondent's offer of reinstatement; (3) less the net earnings, if any, of all the foregoing employees, respectively, during the said period. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 2$9, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging its employees David Kochi, Michael Leslie, and Dwight Yamaguchi, and refusing reinstatement 'What started as concerted activities was converted into union activities as well when the discharged and/or striking employees had recourse to the Union, but whether the employee activities found herein be regarded as union activities or solely concerted activities, the remedy is the same TOP OF WAIKIKI 81 to its employees Carol Kamalii, Anthony Chang, Patricia-Anne Boyd, Warren Wong, Larry Higa, Sharon Stockier, Jean Lok, Irene Krausnick and Charles Jones, because of their concerted and uriion activities, thereby discouraging membership in a labor organization, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. It has not been proven that Respondent discharged its employee, Paul Nieblas, or refused him reinstatement, because of his union or protected concerted activities. RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the Act, as amended, it is hereby ordered that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any employee in the Union, or any other labor organization, by discharging or in any other manner discriminating against any employee with regard to his hire or tenure of employment, or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the right to self-organization, to form their own labor organization, to join or assist the Union, or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer David Kochi, Michael Leslie, Dwight Yamaguchi, Carol Kamalii, Anthony Chang, Patricia-Anne Boyd, Warren Wong, Larry Higa, Sharon Stockier, Jean Lok , Irene Krausnick, and Charles Jones immediate and full reinstatement to their former or equivalent positions' and make them whole for any loss of pay they may have suffered as a result of the discrimination against them , in the manner set forth above entitled "The remedy." (b) Upon request make available to the Board or its agent, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify any of the said employees if presently serving in the Armed Forces of the United States of their rights of reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. (d) Post at its place of business in Honolulu, Hawaii, copies of the attached notice marked "Appendix."' Copies of said notice on forms provided by the Regional Director 'Jones is included to insure that his reinstatement is without prejudicial restrictions. for Region 20 shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith.' 'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 'In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Hotel, Restaurant Employees & Bartenders Union, Local 5, AFL-CIO, or any other labor organization, by discharging any of our employees because of their concerted or union activities or in any other manner discriminate in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer immediate and full reinstatement to David Kochi, Michael Leslie, Dwight Yamaguchi, Carol Kamalii, Anthony Chang, Patricia-Anne Boyd, Warren Wong, Larry Higa, Sharon Stockier, Jean Lok, Irene Krausnick, and Charles Jones and will make them whole for any loss of pay they may have suffered because of the discrimination against them. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named, or any other labor organization. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, against any employee because of membership in or activity on behalf of any labor organization. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TOP OF WAIKIKI, INC. from the date of posting and must not be altered, defaced, (Employer) or covered by any other material. If employees have any question concerning this notice Dated By or compliance with its provisions, they may communicate (Representative) (Title) directly with the Board's Subregional Office, 1311 Kapiolani Boulevard, Suite 308, Honolulu, Hawaii 96814, This notice must remain posted for 60 consecutive days Telephone 588-797.