Waikiki Plaza Hotel

WAIKIKI PLAZA HOTEL 23 Vail City Corp. dibia Waikiki Plaza Hotel and Cul- inary & Service Employees Union, Local 555, AFL-CIO and Independent Service and Culi- nary Workers Union, Party to the Contract Association of Unit Owners Imperial Hawaii and Imperial Hawaii Vacation Club and Culinary & Service Employees Union, Local 555, AFL-CIO and Independent Service and Culinary Workers Union, Party to the Contract. Cases 37-CA- 2119 and 37-CA-2120 29 May 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 26 April 1985 Administrative Law Judge David G. Heilbrun issued the attached decision. The Respondents and Independent Service and Culinary Workers Union filed exceptions and sup- porting briefs, and the General Counsel and the Charging Party filed briefs in opposition to those exceptions and in general support of the judge's de- cision.i The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions3 and to adopt the recommended Order. 1 The Respondents also filed a motion to reopen the record to permit them to introduce into evidence certain documents that became available after the hearing and that suggest the possibility of a merger between the Charging Party, Culinary & Service Employees Union, Local 555, AFL- CIO, and Hotel Employees, Restaurant Employees Union, Local 5, AFL-CIO, The Respondents argue that these documents support their contention made at the hearing that Local 555 ceased to be a labor orga- nization when it was placed into trusteeship by its parent International, and became the alter ego of Local 5. The General Counsel and the Charging Party argue that the issue of a possible merger is not relevant to the determination of the labor organization status of Local 555 under trusteeship, and that the documents concern events occurring after the close of the hearing. Having duly considered the matter, we agree with the General Counsel and the Charging Party. Accordingly, the Respond- ents' motion to reopen the record is denied. In view of our decision here, we find it unnecessary to pass on the General Counsel's claim that the judge erred in not finding that the Inde- pendent Service and Culinary Workers Union's requests for withdrawal of its representation petitions occurred on 11 January 1984. 2 The Respondents have excepted to some of the judge's credibility findmgs. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. 3 Chairman Dotson did not participate in RCA Del Caribe, 262 NLRB 963 (1982), cited by the judge in his decision, and expresses no view here on whether that case was correctly decided. However, absent a majority to overrule RCA Del Caribe, Chairman Dotson considers himself institu- tionally bound to apply it. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Vail City Corp. d/b/a Waikiki Plaza Hotel, and Association of Unit Owners Imperial Hawaii and Imperial Hawaii Vacation Club, Honolulu, Hawaii, their of- ficers, agents, successors, and assigns, shall take the action set forth in the Order, except that the at- tached notice is substituted for that of the adminis- trative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT assist or contribute support to In- dependent Service and Culinary Workers Union by recognizing or contracting with that labor organi- zation as the bargaining representative of our em- ployees unless and until it has been certified as such representative by the National Labor Rela- tions Board. WE WILL NOT give effect to our 10 January 1984 contracts with Independent Service and Culinary Workers Union, or to any renewal, extension, modification, or supplement thereof, but we are not authorized or required to withdraw or eliminate any wage rates or other benefits, terms, or condi- tions of employment that we have given to our em- ployees under such contracts. WE WILL NOT withhold from the pay of any of our employees union dues or other union fees or assessments that have been deducted because of any obligation of membership in Independent Serv- ice and Culinary Workers Union, nor pay to that Union any dues, fees, or assessments that have been deducted from the pay of our employees or con- done any such payments made pursuant to the agreements. WE WILL NOT discriminate in regard to hire or tenure and terms or conditions of employment of our employees to encourage membership in one labor organization and discourage membership in another. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. 284 NLRB No. 3 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL withdraw and withhold all recognition from Independent Service and Culinary Workers Union as the collective-bargaining representative of our employees unless and until it has been certified as such representative by the National Labor Rela- tions Board. WE WILL reimburse all our employees, former and present, for initiation fees, dues, assessments, and other moneys unlawfully exacted from them under the contracts with Independent Service and Culinary Workers Union. WE WILL on request recognize and bargain with Richard Tam as International trustee for Culinary & Service Employees Union, Local 555, AFL- CIO, and sign any understanding reached with him to make a formal, written agreement. VAIL CITY CORP. D/B/A WAIKIKI PLAZA HOTEL ASSOCIATION OF UNIT OWNERS IM- PERIAL HAWAII AND IMPERIAL HAWAII VACATION CLUB Wanda L. Pate and Thomas W. Cestare, Esqs., for the General Counsel. Jared H Jossem and Gregory M. Sato, Esqs. (Torkildson, Katz, Jossem & Fonseca), of Honolulu, Hawaii, for the Respondents. Sean Kim, Esq. (Gill, Park, Park & Kim), of Honolulu, Hawaii, for the Charging Party. Randall N Harakal, of Honolulu, Hawaii, for the Inde- pendent Union as Party to the Contract. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. These cases were tried at Honolulu, Hawaii, during con- secutive business days of September 5-12, 1984. The charges were filed February 2, 1984, by Culinary & Service Employees Union, Local 555, AFL-CIO (the Union), and the complaints were issued March 14, 1984, with a later order consolidating cases dated July 11, 1984. The primary issue is whether Vail City Corp. dibia Waikiki Plaza Hotel and Association of Unit Owners Imperial Hawaii and Imperial Hawaii Vacation Club (Respondent Plaza and Respondent Imperial), re- spectively, unlawfully extended collective-bargaining recognition to Independent Service and Culinary Work- ers Union (the Independent), and then relatedly discrimi- nated against employees by the execution of collective- bargaining agreements with the Independent in which union-shop provisions were contained and union dues were deducted, and refused continued recognition of Local 555, all in alleged violation of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act. On the entire record,' including my observation of the demeanor of witnesses, and after consideration of briefs filed by all parties to the proceeding, I make the follow- ing FINDINGS OF FACT I. JURISDICTION Respondent Plaza and Respondent Imperial are each corporations having an office and place of business in Honolulu, Hawaii, where they engage in the operation of a hotel providing food and lodging for guests. In the course and conduct of their business operations each Re- spondent annually derives gross revenues in excess of $500,000, while purchasing products, goods, and materi- als at their respective facilities valued in excess of $5000 and received directly from points outside Hawaii. Re- spondents each admit and I find that they are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Basis of Analysis Respondent Plaza was formerly named Holiday Inn Makai-Waikiki, and as that entity had been party to a collective-bargaining agreement with the Union having as its duration December 1, 1980, through November 30, 1983. Respondent Imperial was formerly party to a col- lective-bargaining agreement with the Union of a 1-year duration covering the calendar year 1982. On April 25, 1983, Respondent Imperial, by Ironwood Resorts as its managing agent, entered into a memoran- dum of agreement with the Union reciting that due to "extreme financial hardship" then faced by this Employ- er the scheduled wages of the existing contract would not be increased through calendar year 1983. This memorandum extended the underlying collective-bar- gaining agreement through 1983, and contained the fol- lowing provision: PROTECTION OF EMPLOYEES' REPRESENTATION RIGHTS In order to ensure that the majority of employees' representation rights are protected, both parties un- derstand and agree to the following: In the event, during the duration of this Agreement, the Union is placed in trusteeship by the HOTEL EMPLOYEES, RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO (herein HEREIU) Or it is required by HEREIU to merge With HOTEL EMPLOYEES, RESTAURANT EMPLOY- EES UNION, LOCAL 5, AFL-CIO, or any other of HEREIU'S chartered Local Unions, the provisions of Section 1 (Recognition); Section 2 (Union Shop); Section 3 (Authorized Deductions); and Section 33 (Grievance and Arbitration) shall be immediately suspended and the contract consid- 1 Errors in the transcript have been noted and corrected WAIKIKI PLAZA HOTEL 25 ered open for purposes of determining any ques- tion of majority representation including allowing the Employer or the employees of the Employer to immediately petition the National Labor Rela- tions Board for a representation election to deter- mine the question of representation status. By letters dated September 2, 1983, and October 4, 1983, respectively, Billy Kurch, president of Local 555, corresponded with the general managers of Respondent Plaza (then still Holiday Inn Makai) and Respondent Im- perial referencing "Contract Reopener/Negotiations." These letters were each termed "official notification to you of the Union's desire to commence negotiations in accordance with the duration provision of our collective bargaining agreement," informed generally that "substan- tial increases in employees' wages, hours and working conditions" would be specifically proposed at a later time, and contained a typical request for current listing of employees with relevant data on each. The letters concluded as follows: Representing the Union in the negotiations will be myself and members of an employee/negotiations committee (still to be named). The Union reserves the right to amend, change or modify any or all of it's [sic] proposals during the course of negotiations, and terms of the collective bargaining agreement shall be subject to approval by the Union's Execu- tive Board and ratification by the employees. It is also understood that only the President and the Sec- retary-Treasurer of Local 555 shall be Union signa- tories to the final terms of the Agreement. Following this, bargaining sessions were held on No- vember 9, 12, and 23, 1983. By this point in time Iron- wood Resorts had also become managing agent for Re- spondent Plaza. In these negotiations the Union was rep- resented by Kurch, plus Anthony Rutledge, an Interna- tional vice president of HERE(IU) as well as then-busi- ness manager of Local 555, and a rank-and-file commit- tee. The employer negotiators, appearing in coordination at the sessions, were self-employed labor consultant Pat- rick Moon, Ironwood Resorts Vice President-Adminis- tration and Personnel Director Dan Kaneshiro, plus Frank Gomm and Gene Yojo as respective general man- agers of Respondent Plaza and Respondent Imperial. The Union generally sought to continue contractual structure of the former agreement with Holiday Inn Makai, while negotiating spokesmen for the hotel proper- ties preferred "the format and language" of a contract in effect for the Honolulu Airport Ramada Inn. Kaneshiro testified that in furtherance of this objective he caused preparation of a complete proposed agreement, which is in evidence as General Counsel's Exhibit 13. Before further negotiations in this context could con- tinue the general president of HERE appointed a trustee for Local 555, simultaneous with the lodging of formal charges under the International Union's constitution. These actions were reflected in separate letters dated De- cember 9, 1983, one to Richard Tam for his "authority and appointment" as International trustee of Local 555 with plenary powers of administration under which, among numerous other actions, the officers in that affili- ate were to be suspended. The general president's associ- ated letter dated December 9, 1983, was written to the general secretary-treasurer of HERE, Instructing on preparation of a "Notice of Charges" in justification of the trustee's appointment, and terming the enumerated conditions beheved to exist respecting Local 555 as an "emergency situation" requiring immediate rectification in the "best interests" of all involved including union members. At the time of these actions Tam had been secretary- treasurer of HERE Local 5 at Honolulu for approxi- mately 4 years.2 He promptly undertook steps to consoli- date the trusteeship by issuing necessary notifications and establishing a servicing staff. He distributed a letter dated December 13, 1983, to all Local 555 members advising that a trusteeship of their union had become effective the previous afternoon, and that necessary organizational ad- justments were in motion. This general letter described a relocation of Local 555 offices to the 18th floor of a building at 615 Piikoi Street, Honolulu, which was in fact the premises of Local 5. Tam also caused identical letters dated December 14, 1983, to be sent by certified mail to both Gomm and Yojo. These read: Pursuant to a directive of the Hotel Employees and Restaurant Employees International Union, the un- dersigned has been appointed as the representative of the International to exclusively administer the af- fairs, including the responsibility of maintaining the stability of the collective bargaining relationship of the Culinary and Service Employees Union, Local 555. As of December 12, 1983, any and all representa- tives of Culinary and Service Employees Union, Local 555 and Anthony Rutledge, other than myself or anyone designated by myself, shall have no au- thority to transact, sign, or make representations on behalf of Local 555. All officers and employees of Local 555 have been suspended. Said officers, employees and Anthony Rutledge are not authorized access to the employ- ers' premises under the Right of Access clause of the collective bargaining agreement. We will com- municate to you the names of persons authorized to represent Local 555 on the premises. Any and all matters relative to the collective bar- gaining relationship should be directed to the under- signed, Richard Tam: Culinary and Service Employees Union, Local 555, AFL-CIO 615 Piikoi St., 18th Floor Honolulu, Hawaii 96814 Phone: 523-5141 2 Locals 5 and 555 are tiv only affiliates of HERE in Hawaii Exten- sive background on their operations and affairs, plus collateral matters, is set forth tn Quality Inn Waikiki, 272 NLRB 810 (1984) 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD During December 1983 the Independent filed certain representation petitions covering standard hotel units at the two properties. 3 As processing of these cases was un- dertaken at the NLRB Subregional Office in Honolulu, Tam pressed ahead with his implementation of the trust- eeship. His steps included further communication to the Employers, as in a letter to Gomm dated December 19, 1983, requesting an extension of time on pending griev- ances while the records of Local 555 were being re- viewed. More significantly, Tam authorized various staff personnel of Local 5 to function in regard to the trustee- ship, and as part of the conversion process essential office contents, records being the most vital item, were physically transferred to the premises of Local 5 and Local 555's former location was abandoned. William Fuhrmann, administrative assistant to the secretary-treas- urer of Local 5, testified that since December 12, 1983, he has functioned as assistant to International Trustee Tam, and in connection with membership meetings as well as contract servicing has maintained a segregated record of his time spent in duties on behalf of Local 5 versus duties for Local 555 under trusteeship. Compara- ble prorating of employment applies to staff of Local 5 who provide financial, clerical, or other services to Local 555. As these matters transpired, a prehearing conference was docketed on the Independent's representation peti- tions for January 5, 1984, and a bargaining session was scheduled between Tam and the employers for January 4, 1984. In this first actual contract negotiation by its trustee, Local 555 was represented by Tam, Fuhrmann, and functionaries Lowell Kaanehe and Sherry Chock. The hotel properties were represented by Moon, Kane- shiro, Gomm, and Yojo, with the meeting proceeded by dealing first with Respondent Plaza, followed by negoti- ations respecting Respondent Imperial. Fuhrmann testi- fied that Moon displayed the contract draft in evidence as General Counsel's Exhibit 13, stating it represented the extent of agreement reached with previous negotia- tors for Local 555 as to Respondent Plaza. Fuhrmann re- called the Union's position being that they would review matters in the context of this document and advise fur- ther concerning their position as to the negotiations with Respondent Plaza Fuhrmann also testified that a particu- lar section 38, "Protection of Employees' Representation Rights" (quoted above), which the trustee and his repre- sentatives thereafter derisively labeled the "drop dead" clause, was discussed at this meeting as an unacceptable component of the draft. Moon denied\ presenting this document during the meeting of January 4, 1984. With respect to Respondent Imperial, Fuhrmann testified how a wage counterproposal was extended by Tam, coupled with insistence on again deleting the offensive section 38. Fuhrmann recalled Moon's response here being that the Union's stated position would be considered and as rep- resentative for this Employer he would "get back to us."4 As matters actually unfolded there were no further 3 Each appropriate unit is contractually defined in terms of classifica- tion listings typical for a full service (Respondent Plaza) and vacation club (Respondent Imperial) hotel facility, which appear as the "A" ad- dendum to G C Exhs '6c and 7b, respectively 4 All dates hereafter are in 1984 unless otherwise indicated negotiations between the parties, however, Tam sent Moon followup letters dated January 12, 13, and 25, the essence of which conveyed agreement, in principle and conditionally, on Respondent Plaza plus a reminder that Respondent Imperial had not given a response to the Union's wage proposal. The prehearing conference on representation cases took place as scheduled on January 5. Among the par- ticipants were Thomas Medeiros, first vice president of the Independent, and Attorney Randall Harakal, counsel to that organization. Medeiros had signed the various representation petitions of December 1983, the significant remaining ones being those the subject of the prehearing conference as Case 37-RC-2759 filed December 21, 1983, on Respondent Imperial and Case 37-RC-2760, filed the same date on Respondent Plaza. Local 555 was identified in the body of each petition as the "Recog- nized or Certified Bargaining Agent" under an expired contract. The parties could not reach consent agreement to hold elections, and this conference concluded on the basis that a hearing date would be set on the petitions. On January 6 Attorney Harakal caused hand delivery of identical letters to the general managers of each hotel property. These letters identified him as "legal counsel" to the Independent and enclosed copies of signed cards that were termed as showing that "a clear majority of your employees" had requested representation by the In- dependent. Each letter also embodied a demand for rec- ognition of the Independent as "exclusive collective bar- gaining representative" and a request to meet as soon as possible "to begin negotiations." With this impetus a card check was arranged to take place with regard to each property on January 9, Ru- dolph Duncan, an ordained minister and employed offi- cial of the Episcopal Diocese of Hawaii, was engaged to carry out such card checks, and representatives of the employers and the Independent assembled in the after- noon of January 9 for such purpose at an available res- taurant of Respondent Plaza. Those present with Duncan were Attorney Harakal, Medeiros, Moon, Kaneshiro, Gomm, and Yojo. Reverend Duncan was furnished em- ployee lists for Respondent Plaza and Respondent Impe- rial totaling 95 and 39 names, respectively. He was also provided copies of employee authorization cards signed on behalf of the Independent. From these combined ma- terials he concluded that a majority was shown from 58 valid cards of employees at Respondent Plaza, but that the Independent's 19 cards for Respondent Imperial left it short of a majority showing. At this point Reverend Duncan signed a handwritten certification of card count results for Respondent Plaza, and this was then converted to a formal typed document. Duncan signed again as did Medeiros and Gomm on both occasions. The following day Medeiros delivered two additional authorization cards to the Diocese offices, with the result that Duncan signed another certification covering Respondent Imperial and showing the total em- ployees "as provided by the Employer" to be 34 with 21 valid representation cards. This document, dated January 10, was countersigned by Medeiros and Yojo. Both hotel managers also sent identical letters to the Independent WAIKIKI PLAZA HOTEL 27 dated January 10 advising that based on the respective certifications recognition was being granted as "sole and exclusive bargaining representative" for unit employees. As these developments unfolded, negotiations had begun between the hotels and the Independent late in the afternoon of January 9 with Moon and Medeiros, among others, involved in the process. The Independent made verbal proposals and after discussion spanning upwards of an hour a definable agreement was declared with re- spect to Respondent Plaza and one in "principle" for Re- spondent Imperial. Kaneshiro labored throughout that evening and by the next day had produced complete agreements that are in evidence as General Counsel's Ex- hibits 11 and 12. These contracts were signed on January 10 by respective managers of each hotel and by Me- deiros on behalf of the Independent. Additionally, a sep- arate memorandum of understanding was signed in each case with several provisions including modification of union security-language, escrowing of pension fund con- tributions, and a hold-harmless clause running to the em- ployer regarding liability arising from the contracting process. Medeiros testified that unit employees of Re- spondent Plaza and Respondent Imperial ratified these contracts in meetings held on January 10 and 11, respec- tively, and that late in the afternoon of January 10 he ap- peared at the Board's subregional Office to execute with- drawal requests for Cases 37-RC-2759 and 37-RC-2760. These requests, in evidence as General Counsel's Exhib- its 20 and 21, show an approval entered on behalf of Re- gional Director Robert H. Miller as of January 11. B. Analysis Each component of the General Counsel's case has been satisfactorily established by the proofs. Initially, I observe that the trusteeship of Local 555 was orderly in its imposition and implementation, all a reflection of public policy as set forth in Title III of the Labor-Man- agement Reporting and Disclosure Act of 1959. The dealings over an approximate 4-week period following trusteeship showed it was viable and meticulously dis- tinct from influence by Local 5 from which personnel and resources were admittedly drawn. Aside from ex- pectable communication to affected employees and the industry itself, there were specific labor-management dealings and a resumption of bargaining momentum that carried through to January 4. It was only shortly after this point that the employers abruptly renounced what was successfully underway between themselves and the trustee. I find Fuhrmann to be a particularly impressive witness from the point of candor, assurance of recall and demeanor, crediting him in full with respect to testimony that on January 4 he was given a proposed contract that Respondent Plaza had already determined to accept. By then the only remaining steps necessary to renewed con- tractual relations with the two hotel properties were the trustee's acceptance of what is in evidence as General Counsel's Exhibit 13, and the Employer's acceptance, Or further negotiations relative thereto, of the trustee's posi- tion as to Respondent Imperial. What eventuated instead was a swift, bizarre, and totally unlawful series of actions by which the trustee was supplanted and the Independ- ent spuriously substituted in its place. This was done even as Local 555 wrote a series of earnest followup let- ters in January, indicative of the trustee's active adher- ence to his role. The card check conducted by Reverend Duncan was not of a character to establish majority representation being enjoyed by the Independent for the fundamental reason that no assurances were present of signatures to authorization cards being those of the individuals listed as being employed within the respective units. 5 Further- more, the evidence shows that Moon, as chief labor rela- tions functionary for the hotels, was devoid of good-faith belief in any results of the examination process because of admitted inattentiveness or lack of knowledge as to how any conclusions were reached by the impartial cleric. On this basis recognition for the Independent was tainted from the outset, and the precipitate pace with which matters progressed over the eventful 2 days of January 9 and 10 show plainly that Respondents seized on an artificial opportunity to envade their obligation of continued dealings with Tam and his representatives. The contracts as reached, particularly that with Re- spondent Imperial, were substantially identical to what was on the verge of being signed with Local 555 less than a week earlier. Aside from minor variations in format, the discernible differences are that General Counsel's Exhibit 11 deletes section 10.9 concerning mul- tihotel seniority, deletes section 14.14 and 14.15 concern- ing short shifts, substitutes language on breaks for one on meals as section 22, sets forth specific provisions on trust funds for those previously proposed in perpetuation of HERE plans as sections 25 and 26, somewhat modifies holiday language in section 27, deletes formerly pro- posed section 38 on protection of employee representa- tion rights ("drop dead" clause), and adds certain ban- quet gratuity language as section 40.1. The deletion of section 38 caused a renumbering of remaining sections as comparing the two documents, and General Counsel's Exhibit 11 as actually reached between the parties estab- lished a duration of January 1-December 1985 in lieu of the proposed 1-year duration clause of General Counsel's Exhibit 13, which was offered to cover December 1, 1983-November 30, 1984. A comparable degree of simi- larity is also found in the agreement reached by Re- spondent Plaza with the Independent. As the General Counsel contends the case is con- trolled by Signal Transformer Co., 265 NLRB 272 (1982). Signal is largely germane because of its holding that ar- rival of a competing outside union would not necessarily disturb an incumbent union's presumptively enjoyed status, nor justify withdrawal of recognition from it in the absence of a collectively sufficient array of objective considerations on which an employer might in good faith rely. Nothing in RCA Del Caribe, Inc., 262 NLRB 963 (1982), varies such an outlook, for that decision con- firmed the entitlement of an employer to continue bar- 5 The classification listings that comprise approprial e units of the case were indirectly reflected in the recognition document dated October 2, 1983, in whih new ownership of Respondent Plaza couched their transi- tional agreement with Local 555 in terms of an overall hotelwide unit typical to the industry. This harmonizes with the appropriate unit de- scriptions set forth in par. 6(a) of the complaint in each case. 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaining with an incumbent union in the face of a rival representation petition. Accord: Dresser Industries, 264 NLRB 1088 (1982). Furthermore, the traditional doctrine of Midwest Piping & Supply Co., 63 NLRB 1060 (1945), is applicable, inasmuch as the Independent did not make a timely withdrawal of its petitions at the point contracts were reached. Moon plainly admitted that negotiating discussion in regard to Respondent Imperial occurred on January 9 before even a colorable claim of majority was perfected (Tr. 701), while Yojo's recognitional letter in- explicably also keys to that same date. The composite circumstances show that a crudely orchestrated sham was mounted with various interests conspiring to ease out the lawful standing of Tam. It is not shown that bona fide objective considerations guided the employers, or that recognition of the Independent reflected majority desires of employees within the respective appropriate units. In a final regard I discredit Medeiros' confused and shifting testimony, but do not specifically find that his submission of withdrawal requests to the Subregional office was on January 11. While this was date of approv- al it is conversely true that Medeiros achieved numerous visits on the afternoon of January 10 and the documents have no date stamp to contradict his recollection of time sequence. CONCLUSIONS OF LAW 1. Respondent Plaza and Respondent Imperial are each an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union and the Independent are each a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By recognizing the Independent, by executing a col- lective-bargaining agreement with the Independent, and by maintaining in effect and enforcing the provisions of the contract, which contained union-security and dues- checkoff provisions, Respondents have each discriminat- ed in regard to terms or conditions of employment to en- courage or discourage membership in a labor organiza- tion, have rendered and are rendering unlawful assistance and support to the Independent, and have interfered with, restrained, and coerced, and are interfering with, restraining, and coercing their employees in the exercise of Section 7 rights in violation of Section 8(a)(3), (2), and (1) of the Act. 4. By refusing on and after January 10 to continue rec- ognizing and bargaining with the Union as exclusive col- lective-bargaining representative of employees in the ap- propriate unit, the Respondents have each violated Sec- tion 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices. affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that Respondents have engaged in unfair labor practices, I find it necessary to order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, I shall order Respondents to withdraw all recognition from the Independent as representative of their employees for pur- poses of collective bargaining in the appropriate hotel- wide units herein, unless and until the Independent has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. I shall also order Respondents to cease giving force and effect to the collective-bargaining agreements executed on January 10, or any renewal, modification, or exten- sion thereof; provided, however, that nothing in the Order shall authorize or require the withdrawal or elimi- nation of any wage increase or other benefits, terms or conditions of employment that may have been estab- lished pursuant to those agreements. In addition, I shall order Respondents to reimburse, with interest, all present and former employees for all initiation fees, dues, and other moneys that may have been exacted from them by, or in behalf of, the Independent. The latter requirement is a remedial measure serving simply to restore to Re- spondents' employees sums involuntarily withheld pursu- ant to the checkoff provision in an unlawfully executed and maintained collective-bargaining agreement or as ac- cepted directly by the Independent. See NLRB v. Forest City/Dillon-Tecon Pacific, 522 F.2d 1107 (9th Cir. 1975); Special Service Delivery, 259 NLRB 993, 994 and cases cited (1982). Having further found that Respondents violated Sec- tion 8(a)(5) and (1) of the Act by refusing to bargain with the Union as exclusive representative of their em- ployees in the respective overall units, I shall recom- mend that Respondents cease and desist therefrom and, on request, bargain collectively with the Union as their employees' designated agent concerning wages and other terms or conditions of employment. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 6 ORDER The Respondents, Vail City Corp. d/b/a Waikiki Plaza Hotel and Association of Unit Owners Imperial Hawaii and Imperial Hawaii Vacation Club, Honolulu, Hawaii, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Assisting or contributing support to the Independ- ent by recognizing or bargaining with such labor organi- zation as the exclusive representative of their employees for the purpose of collective bargaining unless and until the Independent is certified by the National Labor Rela- tions Board as the collective-bargaining representative of such employees pursuant to Section 9(c) of the Act. (b) Maintaining or giving any force and effect to the collective-bargaining agreements between Respondents and the Independent dated 10 January 1984, or any re- newal, extension, modification, or supplement thereof; provided, however, that nothing in this Order shall au- thorize or require the withdrawal or elimination of any 6 If no exceptions are filed as provided by Sec 102 46 ' of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur. poses. WAIKIKI PLAZA HOTEL 29 wage increase or other benefits, terms or conditions of employment that may have been established pursuant to performance of those agreements. (c) Withholding from the pay of any of its employees union dues or other union fees or assessments that have been deducted because of any obligation of membership in the Independent, and paying to the Independent any dues, fees, or assessments that have been deducted from the pay of its employees or condoning any such pay- ments made pursuant to the agreements. (d) Discriminating in regard to hire or tenure and terms or conditions of employment of their employees, thereby encouraging membership in one labor organiza- tion and discouraging membership in another. (e) Failing to recognize and bargain, on request, with the International Trustee for Culinary & Service Em- ployees Union, Local 555, AFL-CIO. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold all bargaining recognition from the Independent unless and until the Independent is certified by the National Labor Relations Board as the exclusive representative of their employees in an appro- priate unit. (b) On request, bargain with the Union as the exclu- sive representative of employees in the appropriate units on wages and other terms or conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement. (c) Reimburse all former and present employees for all initiation fees, dues, assessments, and other moneys, if any, withheld from or paid by them, in the manner pro- vided in the remedy section of this decision. (d) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at their Honolulu, Hawaii facilities copies of the attached notice marked "Appendix." 7 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's au- thorized representatives, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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"