# Appendix — Rainbow Tours, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1689%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 487 U.S. 1235 ## Text | | NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1987 RAINBOW TOURS, INC. D/B/A RAINBOW COACHES, PETITIONER, VS. NATIONAL LABOR RELATIONS BOARD, RESPONDENT. APPENDIX FOR PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TORKILDSON, KATZ, JOSSEM, FONSECA & MOORE Attorneys at Law _JARED H. JOSSEM * PERRY W. CONFALONE 700 Bishop Street 15th Floor Honolulu, HI 96813 (808) 521-1051 Attorneys for Petitioner RAINBOW TOURS, INC. D/B/A RAINBOW COACHES * Counsel of Record APPENDIX TABLE OF CONTENTS Rainbow Tours, Inc. d/b/a/ Rainbow Coaches (9th Cir. BO. 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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 App. 419 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 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 secondary 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 carried signs App. 420 clearly identifying Rainbow as the picketed employer and carrying the legend that Rainbow was paying substandard wages and its drivers were not working under a union contract. Findings have also been enetered that Rutledge informed Rainbow's drivers that the initial purpose if the picketing was informational [to inform the public and person doing business with Rainbow of its substandard wages (admittedly below those of Rainbow's unionized competitors) and that it was a nonunion operation.] Findings 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 (presumably with similar messages). App. 421 The Company cannot reasonably contend the Rainbow picketing was intended to bring pressure on another employer 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 Dry Dock*° 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' App. 422 refusal to work. Even were tne picketing of the gate allegedly disignated 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 asubstantial portion of Rainbow's work to Robert's for performance by Robert's buses and drivers during the picketing; Robert'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 violation 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 picketing may have been converted into a recognitional picket line after the alleged discriminatees (and possibly other Rainbow employees) signed IBT authorization cards and the IBT requested recognition as their representative (on the third and fourth day of picketing), the evidence is insufficient to support a finding App. 424 that the picketing thereafter became unlawful in the absence of evidence concerning the nature of the petition that the alleged discriminatees (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 sutficiently timely that a finding of Section 8(b)(7) is not supportable. 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 protection of the Act. App. 425 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 discriminatees 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 Carbide holding, adopting the statement of the Trial Examiner in that case that: contrary to the court's holding in Union 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 App. 426 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 isan unprotected activity when it 1s 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 discriminatees failed or refused to cross the IBT picket line on January 29 and 30 because they feared violence to their persons, ~* they met together on January 31 prior to the time Kolt discharged them, decided to stay App. 427 together as a group, decided to secure IBT representation, and thereby joined cause with the IBT as employees of Rainbow on strike against it 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 descriminatees were engaged in conduct unprotected under the Act because some of their number mav 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 App. 428 striking employees and hire permanent replacements for them in order to maintain its business operations, citing N.L.R.B. v. Southern Greyhound Lines, Division of Greyhound Lines, Inc.. 426 F.26 1299 (Sth Cir. 1970); Redwing Carriers, Inc. and Rockana Carriers, Inc., 137 NLRB 1545 (1962), Sees eee w eee eee (0.C. Cir. 1963), cert. denied 377 U.S. 905 (1964); and Swain & Morris Construction 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 > the Board, with court operations, “* approval, has developed the doctrine that the employer's only motive for App. 429 effecting such terminations must be to secure performance of the strikers’ work (and not in retaliation for their withholding their services), and such termination 1s necessary to secure perfomances of that work. ** In this case, just the opposite occurred. The evening after the 12 alleged discriminates 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 loyalty 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 App. 430 would be at the bottom of the respective full-time and parttime 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 announcement 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 activities protected under the Act unrelated to any need to continue operations, “° 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 App. 431 supporting it, particularly as the representative 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-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 accept the status of new employees at a time there were job vacancies, shows App. 432 Kolt discharged the 12 alleged discriminatees 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 discriminatees 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 discriminatees were discharged for engaging in App. 433 protected concerted 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 subtantially equivalent postitions, and to reimburse them for any wage losses they have suffered between the date of such reinstatement. There appears little reason to depart from that remedy here, inasmuch as it is readily apparent the alleged discriminatees 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 App. 434 unconditionally offered to return to work on February 2, 1977, and G. Wong would have done so but for receiving a report that Kolt had refused to reinstate any of the 11 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., for 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 application and telling Sai he would be contacted if needed. As far as Kaui is concerned, it is undisputed that Kaui spent 85 to 90 App. 435 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 therefore find and conclude Kaui was not a supervisor within the meaning of the Act. It is true that Kaui did not have a valid health card at the time he was interviewed by Kolt on February 2, 1977. It is undisputed that Kaui’‘s health card expired 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 App. 436 securing 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 l. At all pertinent times Rainbow was an employer engaged in commerce in a business affecting commerce and the IBT and ILWU were labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. At times pertinent Kolt and McCreadie were supervisors and agents of Rainbow acting on its behalf within the meaning of Act. App. 437 3. At times pertinent Kaui was not a supervisor of the Company acting on its behalf. 4. Rainbow violated Section 8(a)(1) of the Act on December 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 representation. 5. Rainbow violated Section 8(a)(1) of the Act on January 3l, 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. App. 438 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 protected 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 App. 439 jobs, with full restoration of their seniority and other rights and privileges as they existed prior to their discharge, and reimburse the 12 persons for all wages and interest thereon computed in the manner prescribed in F.W. Woolworth Company, 90 NLRB 289 (1950) and Fiorida Steel Corporation, 231 NLRB 651 (1977),°’ 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, ioss of new buses, and loss of services of the manager who brought in major new business (and therefore an implied threat of loss of their jobs) if they sought and secured union App. 440 representation, I shall recommend the Company be directed to cease and desist therefrom and post appropriate notice thereof. On basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant of 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: 1. 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 App. 441 services of the manager who brought in that new business, and loss of employment if they sought and secured union representation. (b) Interfering with the right of its employees to engage in protected, concerted activity in violation of Section 8(a)(l1) 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, restraining, 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 effectuate the policies of the Act: App. 442 (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 former jobs or, if those jobs no longer exi.t, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges. (b) Make 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 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.” App. 443 (c) Preserve and, upon request, make available to the Board or its agents, 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 Order. (d) Post at its place of business in Honolulu, Hawaii, copies of the attached notice marked 49 “Appendix.’ Copies of said notice, on forms provided by the Regional Director of Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in App. 444 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 writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. App. 445 FOOTNOTES Hereinafter called Teamsters or IBT or the Union. , 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. & Pursuant to the General Counsel's motion, certain errors in the transcript have been noted and are hereby corrected. : I find at all times pertinent Fukunaga, Kolt, and McCreadie were Supervisors and agents on behalf of both TA and its successor, Rainbow. . The four lease-purchase agreements were executed on December 1, 1976, and provided for the delivery of four buses on December 1, 1976, two buses on December 13, 1976, two buses on December 20, 1976, and the final two buses on December 28, 1976. . The terms for such services were not developed in the record. : The Company employed both full-time and part-time drivers. : New drivers were brought over from Hawaiian Scenic by Kolt; they and Kolt had developed friendly relations App. 446 while Kolt was employed by Hawaiian Scenic. sl He explained the terms of the leases. kia McCreadie was popular with the drivers. ‘ a The findings contained in this Paragraph are based upon the testimony of Kolt and several of the drivers who attended the meeting. . Kolt corroborated the drivers’ testimony except for their testimony concerning the remarks 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 drivers’ recollection. es Kolt testified the roster was posted sometime between Janaury 15, 1977, and the first day the IBT picketed Rainbow's yard. It was established the picketing began on Saturday, January 29, 1977. sti It is undisputed Ike Sataraka commenced work January 21, 1977, worked for a few days, and did not work thereafter. by Sai, Garrett Wong, A. Wong, Eric Kama, Miles Fonseca, and Mike Cabanilla. App. 447 be The city firemen were represented by a labor organization; Sai had been employed by Charley's when it was Organized by the IBT. si Sun Tours and Hawaiian Holidays. is Fujimoto, Martinez, Kaiihue, and Kaopuiki ey Walter Nelson, Pablo Ripani, Henry Hanalei Kaaihue, Richard Yamanaka, and Rickard Kekona. sie By this time the pickets were also carrying signs saying Robert's was unfair. ale Richard Yamanaka, Peter Sataraka, and Pablo Ripani commenced work as full-time drivers on January 3l. 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. he Henry Hanalei Kaaihue and Walter Nelson indicated their interest in going to work for the Company at the Janaury 30 meeting at the Rainbow yard, provided they were assured full-time employment and retention when the picketing ceased, which Kolt promised. see McCreadie confirmed, however, that Sanford and Iwata had been discharged and would not be reinstated. App. 448 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”. si Ten of the twelve alleged discriminatees were there (Sanford, Kaui, Iho, Akamine, Agao, Iwata, Louis, Kaaiai, Sai, 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 Kalahiki and A. Wong). sib Kolt first took the position they were replaced. is 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. = The full-time drivers listed on the full-time seniority roster below alleged discriminatees Sanford, Kaui, Iho, Akamine, and Agao were seven in number. The record does not disclose the identity of the seven part-time drivers who worked during the picketing. sh Rutledge asked Kolt to authorize him to tell the drivers who had signed IBT cards that they had an agreement App. 449 at a meeting he had scheduled with the card signers that evening. All but G. Wong. Agao, Akamine, and Iho's testimony to this effect was uncontradicted and is credited. A Kaui kept the appointment and secured a valid health card on February 4. All five had previously been part-time employees. 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. a Sunset Hawaii-Hawaiian Beachcomber Tours, associated companies, notified Kolt on February l, 1977, that they were discontinuing use of Rainbow 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 normally charged it customers between $24 and $32 per hour for its services. On January 30, the Company farmed out 119-1/2 hour; on January 3l, 138-1/2 hours. App. 450 me Who I find were notified of Kolt's statements later. a Kolt testified he did not foresee a need for any more than 1l full-time drivers for some time (the size of his full-time driver complement prior 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 3l. 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. — 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 App. 451 is likewise insufficient proof of such company. 40 Sailors’ Union of the Pacific, AFL (Moore Dry Dock Company, 92 NLRB 547 (1950). sh Congoleum Industries, Inc., 197 NLRB 534,547 (1972). oh 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. iy N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938). 44 Redwing Carriers, supra; Swain & Morris, supra; Overnight Transportation Co., 209 NLRB 691 (1974). “7 Decatursville Sportswear Co., Inc., 205 NLRB 824 (1973); Globe Molded Plastics Co., Inc., 204 NLRB 1041 (1973). 46 The full-time roster posted in late January 1977 listed Sanford, Kaui, Iho, Akamine, and Agao as nos. l 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 l1 through 7. Since I. Sataraka left the Company's employ prior to January App. 452 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 1l if they accepted his offer of employment as new hires, the reverse of their seniority positions prior to joining the IBT. The record does not disclose the positions of the part-time alleged discriminates on the part-time seniority roster, but it may be presumed reasonably that one of them were numbered between 1 and 7 prior to joining the IBT. Sc See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Be 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 recommended 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. vias 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 App. 453 Appeals Enforcing an Order of the National Labor Relations Board.” App. 454 In the following cases, the U.S. Court of Appeals for the Ninth Circuit has enforced orders of the NLRB: k & ® NATIONAL LABOR RELATIONS BOARD v. RAINBOW TOURS, INC. doing business as RAINBOW COACHES, Nos. 79-9260 and 79-7281, August 29, 1980, enforcing 101 LRRM 1042, 241 NLRB No. 86. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RAINBOW TOURS, INC. No. 86-7630 d/b/a RAINBOW COACHES, FILED FEB. 18, 1988 Petitioner, Cathy A. Catterson, U.S. Court of NATIONAL LABOR Appeals RELATIONS BOARD Respondent. ) ) ) ) ) ) vs. ) Clerk ) ) ) ) ) ) JUDGMENT Before: BROWNING, Chief Judge, WRIGHT and LEAVY, Circuit Judges. THIS CAUSE came on to be heard upon a petition filed by Rainbow Tours, Inc., d/b/a Rainbow Coaches, to review a supplemental order of the National Labor Relations Board issued against said Petitioner, its officers, agents, successors, and assigns, on 30 May 1986, and upon a cross-application filed by the National Labor Relations App. 456 Board to enforce said Order. The Court heard argument of respective counsel on 5 November 1987, and has considered the briefs and transcript of record filed in this cause. On 4 December 1987, the Court being fully advised in the premises, issued a memorandum granting enforcement of the Board's Supplemental Order, as modified. In conformity therewith, it is hereby ORDERED AND ADJUDGED by the Court that Petitioner, Rainbow Tours, Inc., d/b/a Rainbow Coaches, Honolulu, Hawaii, its officers, agents, successors, and assigns, shall make the employees involved in this proceeding whole by payment to them of the het tntoe amounts, together with interest as set forth in the section App. 457 of the Administrative Law Judge's Decision entitled "The Remedy,” attached hereto as Appendix A and continuing until the amounts are paid in full, but minus tax withholdings required by federal and state laws: Simeon Agao, Jr. $7,321.18 Michael Akamine $1,663.18 Miles Fonseca $18,421.76 Yukio Iho $1,687.57 Lane Kaaiai $14,963.76 Eric Kama $12,373.44 Ralph Kaui $15,906.08 James Louis $2,952.17 Ronald Sai $11,182.34 Henry Sanford “ $10,279.23 Endorsed, Judgment Filed and Entered DATE ISSUED: 18 February 1988 SO ORDERED /s/_ Cathy A, Catterson Cathy A. Catterson Clerk By: . : Donald Lewis Deputy Clerk App. 458 APPENDIX A The Remedy For the reasons described, I find that Petitioner's obligations to the discriminatees herein will be discharged by the payment to them of the respective amounts set forth in the Appendices annexed hereto. Such amounts shall be payable, plus interest on those sums, in the manner provided in F.W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651. See generally Isis Plumbing & Heating Co., 138 NLRB 716 (1962).21 21 If 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 recommended 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. 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The panel has voted to deny the petition for rehearing, and Judges Browning and Leavy have voted to reject the suggestion for a rehearing en banc. : The full court has been advised of the suggestion for an en banc hearing, and no judge of the court has requested a vote on it. Fed. R. App. P. 35(b). App. 479 The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected. App. 480 HAVE YOU BEEN OFFERED REINSTATEMENT BY THE DISCHARGING EMPLOYER? __ YES ZX/ NO Z/ NATIONAL LABOR RELATIONS BOARD COMPLIANCE FORM C/9 REGION 20 (CLAIMANT'S BACKPAY DATA FORM) CURRENT ADDRESS, IF DIFFERENT 37-CA-1341, 1342, 1387 (Date) Phone: Zip Miles Fonseca 47-497 Ahulimanu Place Kaneohe, Hawaii 96744 Rate you were paid before the discrimination against you: $6.30 per HR + tips Your classification at the time of the discrimination: Tour Driver COMPLETE THE FOLLOWING FOR THE MONTH OF FEB 1977 A. Employers you worked for this month: 1. Name: From: To: Address: Street Address City: State Zip Earnings: §$ No. hours worked: wae App. 481 2. Name: From: 20° Address: Street Address City: State Zip Earnings: $ No. hours worked: (If there were others, attach separate sheet) B. For all periods you were unemployed this month complete the back of form, C. List your expenses in searching for work or expenses required to work for employers listed above: A Number of driving miles searching for WOLk: 2. Long distance telephone calls: $ 3. Employment agency or union registration fees: $ 4. Other $ for D. List dates you were not available for work this month: 1. From to ; Reason 2. From to ; Reason 3. From to ; Reason ae IF YOU ARE UNEMPLOYED COMPLETE OTHER SIDE OF FORM C-4 _ App. 482 HAVE YOU BEEN OFFERED REINSTATEMENT BY THE DISCHARGING EMPLOYER? —__ YES ZX/ NO Z/ NATIONAL LABOR RELATIONS BOARD COMPLIANCE FORM C/9 REGION 20 (CLAIMANT'S BACKPAY DATA FORM) CURRENT ADDRESS, IF DIFFERENT 37-CA-1341, 1342, 1387 (Date) Phone: Zip Miles Fonseca 47-497 Ahulimanu Place Kaneohe, Hawaii 96744 Rate you were paid before the discrimination against you: $6.30 per HR + tips Your classification at the time of the discrimination: Tour Driver COMPLETE THE FOLLOWING FOR THE MONTH OF MAR 1977 A. Employers you worked for this month: 1. Name: From: To: Address: Street Address City: State Zip Earnings: $ No. hours worked: App. 483 Be Name: From: To: Address: Street Address City: State Zip Earnings: $ No. hours worked: (If there were others, attach separate sheet) B. For all periods you were unemployed this month complete the back of form. C. List your expenses in searching for work or expenses required to work for employers listed above: 1. 4. Number of driving miles searching for work: Long distance telephone calls: $ Employment agency or union registration fees: $ Other $ for D. List dates you were not available for work this month: i. 2. 3. From to ; Reason From to ; Reason From to ; Reason IF YOU ARE UNEMPLOYED COMPLETE OTHER SIDE OF FORM C-4 App. 484 E. You must list all places where you applied for employment during the month shown on the front of this sheet. 1. Name: Address City A Date Applied: Enter code below ]/ 2. Name: Address City Date Applied: Enter code below l/ 3. Name: Address City Date Applied: Enter code below ]/ 4. Name: Address City Date Applied: Enter code below ]/ 5. Name: Address City Date Applied: Enter code below ]/ (Add the rest on a separate attached sheet) | F. List employment agencies and union hiring facilities where you registered: App. 485 1. Name: Address City Date registered: Number of referrals to jobs: 2. Name: Address City Date registered: Number of referrals to jobs: 1/ Code: A - Personal visit (no written application) B - Personal visit (was interviewed) - Personal visit (left written application) Mailed a letter or written application - Spoke on telephone (name of person reached must be furnished) F - Other (explain on an attached sheet) Hm oO A 1 YOU MUST ATTACH RECEIPTS FOR ALL CLAIMED EXPENSES EXCEPT MILEAGE OR PUBLIC TRANSPORTATION reverse C-4 App. 486 92896 dtz TIeEMEH 93e3S *UOH ARTO "OA AW PneyeTey cCeotT sseippe 398e8e14S :SseiIpPpYV Suny JO 4STt OL JST woig SIMoOY S,ASeTIeYD ‘owen (T :lajzaenb sty} 103 payi0om no& (s)rekoTdug ‘v LL6ot Nor Niu ZL6T YdWY :aaLYWNO YOA ONIMOTION AHL ALATAWOO /X¥7 ON / 7/7 SHA i aati os ZYaAOTAWA = ONIOMUWHOSIG AHL AG LNAWALVLSNIGY GauaAAO NAGA NOA AAVH . 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Article 6, Clause 2 This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Coutraty notwithstanding. National Labor Relations Act 29 USC §161(1). For the purpose of all hearings and investigations, which, in the App. 505 opinion of the Board, are necessary and proper for the exercise of the powers vested in it by sections 159 and 160 of this title - (1) Documentary evidence; summoning witnesses and taking testimony The Board, or its audiy authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses App. 506 or the production of any evidence in such proceedings or investigation requested in such application. Within five days after the service of a subpoena on any person requiring the production of any evidence in his possession or under this control, such person may petition the Board to revoke, and the Board shall revoke, such subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpoena does not describe with sufficient particularity the evidence whose production is required. Any member of the Board, or any agent or agency designated by the Board for such purposes, may App. 507 administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing. National Labor Relations Board Regulations 29 C.F.R. §102.66(C). Any party may file applications for subpoenas in writing with the regional director if made prior to nearing, or with the hearing officer if made at the hearing. Applications for subpoenas may be made ex parte. The vial eiieais director or the hearing officer, as the case may be, shall forthwith grant the subpoenas requested. Any person served with a App. 508 subpoena, whether ad testificandum or duces tecum, if he does not intend to comply with the subpoena, shall, within 5 days after the date of service of the subpoena, petition in writing to revoke the subpoena. Such petition shall be filed with the regional director who may either rules [sic] upon it or refer it for ruling to the hearing officer: Provided, however, That if the evidence called for is to be produced at a hearing and the hearing has opened, the petition to revoke shall be filed with the hearing officer. Notice of the filing of petitions to revoke shall be promptly given by the regional director or hearing officer, as the case may be, to the party at whose request the subpoena was issued. The App. 509 regional director or the hearing officer, as the case may be, shall revoke the subpoena if, in his opinion, the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The regional director or the hearing officer, as the case may be, shall make a simple statement of procedural or other grounds for his ruling. The petition to revoke, any answer filed thereto, and any ruling thereon shall not become part of the record except upon the request of the party App. 510 - aggrieved by the ruling. Persons compelled to submit data or evidence are entitled to retain or, on payment of lawfully prescribed costs, to procure copies or transcripts of the data or evidence submitted by them. HAWAII REVISED STATUTES Hawaii Revised Statutes ("HRS") - §383-95 [Disclosure of Information/Unemployment Insurance]. (a) Except as otherwise provided in this chapter, information obtained from any employing unit or individual pursuant to the administration of this chapter and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or be open to public inspection in any manner revealing the individual's or employing unit's App. 511 identity. Any claimant (or the claimant's legal representative) shall be supplied with information from the records of the department to the extent necessary for the proper presentation of the claimant's claim in any proceeding under this chapter. Subject to such restrictions as the director may by regulation prescribe, the information and determinations may be made available to: (1) Any federal or state agency charged with the administration of an unemployment compensation law or the maintenance of a system of public employment offices, App. 512 (2) (3) (4) (b) The bureau of internal revenue of the United States Department of Treasury, Any federal, state or municipal agency charged with the administration of a fair employment practice or anti-discrimination law, and Any other federal, state or municipal agency if the director deems that the disclosure to the agency serves the public interest. Information obtained in connection with the administration of the employment service may be made available to persons or agencies for purposes appropriate to the operation of a public employment service. App. 513 (c) Upon requests therefor the department shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment, and may furnish to any state agency Similarly charged, the name, address, ordinary occupation and employment status of each recipient of benefits and the recipient's rights to further benefits under this chapter. (d) The department may request the comptroller of the currency of the United States to cause an examination of the correctness of any return or report of any national banking association rendered pursuant to this chapter, and may in connection with the request transmit any of the report or return to the comptroller of the App. 514 currency of the United States as provided in section 3305(c) of the federal Internal Revenue Code.? §383-30 Disqualification for benefits. An individual shall be disqualified for benefits: (1) Voluntary separation. For any week prior to October l, 1989, in which the individual has left work voluntarily without good cause, and continuing until the individual has, subsequent to the week in which the voluntary separation occurred, been employed for at least five consecutive weeks of employment. For the purposes of this paragraph, "weeks of employment” means App. 315 —— all those weeks within each of which the individual has performed services in employment for not less than two days or four hours per week, for one or more employers, whether or not such employers are subject to this chapter. For any week beginning on and after October 1, 1989, in which the individual has left the individual's work voluntarily without good cause, and continuing until the individual has, subsequent to the week in which the voluntary separation occurred, been paid wages in covered employment equal to App. 516 (2) not less than five times the individual's weekly benefit amount as determined under section 383-22(b). An owner-employee of a corporation who brings about the owner-employee's unemployment by divesting ownership, leasing the business interest, terminating the business, or by other similar actions where the owner-employee is the party initiating termination of the employment relationship, has voluntarily left employment. Discharge or suspension for misconduct. For any week prior to October 1, 1989, in App. 517 which the individual has been discharged for misconduct connected with work, and continuing until the individual has, subsequent to the week in which the Gischarge occurred, been employed for at least five consecutive weeks of employment. For the week in which the individual has been suspended for misconduct connected with work and for not less than one or more than four consecutive weeks of unemployment which immediately follow such week, as determined in each case in accordance with the seriousness of the App. 518 misconduct. For the purposes of this paragraph, “weeks of employment" means all those weeks within each of which the individual has performed services in employment for not less than two days or four hours per week, for one Or more employers, whether or not such employers are subject to this chapter. For any week beginning on and after October 1, 1989, in which the individual has been discharged for misconduct connected with work, and until the individual has, subsequent to the week in which the discharge occurred, been paid wages in covered App. 519 (3) employment equal to not less than five times the individual's weekly benefit amount as determined urider section 383-22(b). Failure to apply for work, etc. For any week prior to October 1, 1989, in which the individual failed, without good cause, either to apply for available, suitable work when so directed by the employment office or any duly authorized representative of the department of labor and industrial relations, or to accept suitable work when offered and continuing until the individual has, subsequent to the week in App. 520 which the failure occurred, been employed for at least five consecutive weeks of employment. For the purposes of this paragraph, “weeks of employment" means all those weeks within each of which the individual has performed services in employment for not less than two days or four hours per week, for one Or more employers, whether or not such employers are subject to this chapter. For any week beginning on and after October 1, 1989, in which the individual failed, without good cause, either to apply for available, suitable work when so directed by the App. 521 employment office or any duly authorized representative of the department of labor and industrial relations, or to accept suitable work when offered until the individual has, subsequent to the week in which the failure occurred, been paid wages in covered employment equal to not less than five times the individual's weekly benefit amount as determined under section 383-22(b). (A) In determining whether Or not any work is Suitable for an individual there shall be considered among other factors and in App. 522 addition to those enumerated in paragraph (3)(B), the degree of risk involved to the individual's health, safety, and morals, the individual's physical fitness and prior training, the individual's experience and prior earnings, the length of unemployment, the individual's prospects for obtaining work in the individual's customary occupation, the distance of available work from the individual's residence, and prospects for App. 523 (B) obtaining local work. The same factors so far as applicable shall be considered in determining the existence of good cause for an individual's voluntarily leaving work under paragraph (1). Notwithstanding any other provisions of this Chapter, no work shall be deemed suitable and benefits shall not be denied under this Chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: App. 524 (1) (11) (111) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; If as a condition of being employed the individual would be required to join a company (4) union or to resign from or refrain from joining any bona fide labor organization. Labor dispute. For any week with respect to which it is found that unemployment is Gue to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which the individual is or was last employed; provided that this paragraph shall not apply if it is shown that: (A) The individual is not participating in or Girectly interested in App. 526 (B) the labor dispute which caused the stoppage of work; and The individual does not belong to a grade or Class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or directly interested in the dispute; provided that if in any case separate branches of work, which are commonly conducted in separate App. 527 (5) businesses in separate premises, are conducted in separate departments of the same premises, each such department shall, for the purpose of this paragraph, be deemed to be a separate factor, establishment, or other premises. If the department finds that the individual has within the twenty-four calendar months immediately preceding any week of unemployment made a false statement or representation of a material fact knowing it to be false or knowingly failed to disclose a material fact to App. 528 obtain any benefits not due under this chapter, the individual shall be disqualified for benefits beginning with the week in which the department makes the determination and for each consecutive week during the current and subsequent twenty-four calendar months immediately following such determination, and such individual shall not be entitled to any benefit under this chapter for the duration of such period; provided that no disqualification shall be imposed if proceedings have been undertaken against the App. 529 (6) individual under section 383-141. Other unemployment benefits. For any week or part of a week with respect to which the individual has received or is seeking unemployment benefits under any other employment security law, but this paragraph shall not apply (A) if the appropriate agency finally determines that the individual is not entitled to benefits under such other law, or (B) if benefits are payable to the individual under an act of Congress which has as its purpose the supplementation App. 530 of unemployment benefits under a state law. Hawaii Dept. of Labor and Industrial Relations Administrative Rules §12-5-55 Failure to apply for work. (a) A claimant shall be disqualified under section 383-30(3), Hawaii Revised Statutes, if: (1) The claimant was offered employment or was directed to apply for employment by a public employment office; (2) The prospective employment was suitable; (3) The offer was refused or the Claimant failed to apply; and (4) The refusal or failure to apply was without good cause. App. 531 OO (b) An offer of work or referral to employment shall be considered properly made when: (1) A job opening actually existed at the time the offer was made or referral was given; (2) The claimant knew and understood that an offer or referral was being made; (3) The claimant was given sufficient information concerning the conditions of the job such as, but not limited to, the duties, location of work, hours of work, wages, working conditions, equipment needed, and union requirements if any, to determine the App. 532 Suitability of the offer or the referral; and (4) The claimant upon accepting a referral was given adequate information as to where and how to apply. (c) Suitable work means work in the individual's usual occupation or work for which the individual is reasonably fitted. In determining whether an individual is reasonably fitted for a particular job, the department shall, among other factors, consider: (1) The degree of risk involved to the claimant's health, safety, and morals; (2) The claimant's physical fitness; (3) The claimant's prior training; ASD. 33a (4) (5) (6) (7) (8) (9) (d) provisions in this section, no work shall be deemed suitable and benefits shall not be denied under section 383-30(3), Hawaii Revised Statutes, to any otherwise eligible individual for refusing to accept new work under any The claimant's experience; The claimant's prior earnings; The length of the claimant's unemployment ; The claimant's prospects for obtaining work in such claimant's customary occupation; The distance of available work from the claimant's residence; and The claimant's prospects for obtaining local work. Notwithstanding any other App. 534 of the conditions specified in section 383-30(3)(B), Hawaii Revised Statutes. (e) Failure to apply for work includes, but is not limited to: (1) Failure to report to a public employment office on a call-in for a referral to work; or (2) A refusal to accept a referral to work; or (3) After acceptance of the referral, a refusal to apply to the employer for work. (f) Refusal of work offer includes, but is not limited to: (1) Refusal of a job offer made by an employer or by someone having authority to hire for the employer; or (2) After acceptance of a job offer made by an employer, claimant's failure to report to work for that employer on the first scheduled day of work. App. 536 FOOTNOTES 1 The statute in force at the time of the Board's decision did not differ materially from the statute above cited. The term "his" was used in place of “the claimant's" appearing in lines 10 and 14 of the statute. Subparagraphs (1)-(4) did not begin with capital letters. See ALJ backpay decision, p. 10 (n.1) App. , 2 The present unemployment statute above cited does not differ materially from the statute in effect during the backpay proceedings. App. 537 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1689%3A2. Public record. Not legal advice.