Graveyard shift janitors who clean the iconic Hilton Hawaiian Village in Waikiki are supposed to be paid union wages even if they work for a hotel contractor and aren’t union members.

That’s guaranteed in a collective bargaining agreement between the Hilton and the hotel employees union, which has long sought to lessen the impact on workers when hotels economize by hiring contractors that can use non-union employees.

So when Jasmine Marbou, a single mother, found out in 2013 her pay of $13.59 per hour was far less than union employees doing basically the same work in the same hotel, she and several co-workers filed suit against the contractor they worked for.

But a federal judge ruled in favor of the defense and stuck the workers with the bill for their employer’s legal expenses.

Marbou and 34 other janitors, mostly immigrants from the Phillipines, owe $2,779 apiece.

People who worked the graveyard shift cleaning the Hilton Hawaiian Village crowd a hallway at Local 5 headquarters after discussing their failed lawsuit seeking back wages from Hawaii Care and Cleaning. They’re each now on the hook for more than $2,700 for their employer’s attorneys’ fees. Cory Lum/Civil Beat

The judge said the union could challenge the pay disparity, but non-union workers could not.

Now Unite Here Local 5 has filed a grievance seeking to do just that. Its spokeswoman, Paula Rodelas, claims as many as 50 workers may have been underpaid by a total $1.5 million because they didn’t get the same raises as union members from 2008 to 2013.

“This is wage theft,” Rodelas said. “It’s not a question at all that these workers weren’t being paid the right amount. The workers aren’t asking for more than what they deserve, they’re just asking for their money back.”

The grievance is the latest development in the union’s decade-long struggle to enforce collective bargaining agreements governing contracting at Waikiki hotels, a conflict that underscores the vulnerability of workers who are the backbone of Hawaii’s tourism industry.

The employees worked for Hawaii Care and Cleaning, which didn’t reply to requests for comment but implied in court records that it’s not to blame because it didn’t receive money from Hilton for raises.

Rodelas said the union doesn’t care whether Hilton or the cleaning company ultimately pays the back wages, but holds Hilton responsible for upholding the collective bargaining agreement.

Hilton spokeswoman Cynthia Rankin declined to comment on the lawsuit and the grievance, writing in an email that the hotel does not discuss legal or personnel matters. She did say that the hotel complies fully with its union agreement.

“Any grievances in this area that are brought to our attention are handled as expeditiously as possible and in accordance with the agreement,” she wrote.

The Failed Lawsuit

Marbou started working for Hawaii Care and Cleaning at the Hilton Hawaiian Village in 2010. A Farrington High School graduate who moved to Hawaii from Palau at age 16, she was used to working multiple jobs in the retail and service industry to support her two teenagers and two grandchildren.

Still, sweeping, mopping, wiping and hosing down the Hilton towers from 11 p.m. to 7 a.m. was tough. Even including overtime, her bi-weekly paycheck was generally no more than $800 or $900 after taxes, she said.

She heard rumors that she and her fellow coworkers weren’t getting paid as much as they should have been, but she wasn’t sure. She remembers her supervisor told her not to talk to the union and not to tell anyone how much she was making.

It wasn’t until the second half of 2013, when she left Hawaii Care and Cleaning to work directly for Hilton and became a union member, that she learned that the hotel had agreed that its contractors would pay union wages to their non-union employees.

Cory Lum/Civil Beat

At the time, union janitors on staff at the Hilton were earning $18.64 per hour compared to her wage of $13.59 per hour, a difference of $10,000 per year.

Marbou and 34 co-workers found an attorney to represent them pro bono and filed a lawsuit in December 2013 alleging breach of contract.

But two months ago, Judge Alan Kay ruled against the workers, explaining that they weren’t “third party beneficiaries” to agreements between Hilton and Hawaii Care and Cleaning that stated requirements of the collective bargaining agreement applied to the non-union hotel workers.

The plaintiffs also didn’t have an express agreement between themselves and the cleaning company guaranteeing the wage increases, Kay wrote.

Bill Allen, an entrepreneur from Kauai who heads Hawaii Care and Cleaning, testified that Hilton did not give the company money for raises after May 2007.

If they had gotten union wage increases, the majority of the 35 plaintiffs would have received an extra $30,000, or more than what they earned in a year working at the cleaning company in 2013.

Here’s a list of the employees and how much they could have earned in raises according to Hawaii Care and Cleaning, which calculated the amounts to justify its request for attorneys’ fees:

Trouble With Contracting

In its 2014 filing with the Securities and Exchange Commission reporting $10.5 billion in revenue, Hilton Worldwide described the Hilton Hawaiian Village as an iconic hotel with significant underlying real estate value.

The hotel is probably best known as the place where Elvis Presley starred in the film “Blue Hawaii” and as the backdrop of numerous episodes of “Hawaii Five-0.”

But the hotel has a bad record when it comes to upholding its collective bargaining agreements, according to Rodelas from Local 5.

Compared to other Waikiki hotels like the Sheraton, Hyatt and Moana Surfrider, “Hilton has historically been the worst violator of the subcontracting clause” in the union’s collective bargaining agreement since the provision was added 13 years ago, Rodelas said.

Since 1998, contracting has become more common at Waikiki hotels, spurring the loss of union jobs and underpayment of workers, Rodelas said. That prompted the union to successfully negotiate a provision in its 2002 collective bargaining agreement blocking some contracting and governing how other such arrangements work.

At the time, Hilton was contracting more than any other hotel where union employees worked, Rodelas said. Hawaii Care and Cleaning was hired for night cleaning and another company, Team Clean, cleaned public areas.

Cory Lum/Civil Beat

In 2004, Local 5 won a grievance against the Hilton for not ensuring janitors employed by Team Clean were sufficiently paid.

After prevailing in that grievance, Rodelas said the union realized that the hotel’s other contractor, Hawaii Care and Cleaning, also wasn’t paying proper wages to janitors.

Hilton’s “persistent violations” prompted Local 5 to negotiate for penalties for repeat violations in its 2006 collective bargaining agreement, Rodelas said.

Ultimately, the union agreed that Hilton didn’t need to pay back wages to workers employed by Hawaii Care and Cleaning prior to 2006, and the hotel agreed to abide by the new collective bargaining agreement which said it can only hire contractors for union work that pay union wages.

Fear of Retaliation

When Rodelas asked Marbou to bring a couple of workers who were plaintiffs in the case against Hawaii Care and Cleaning to speak with Civil Beat, she thought perhaps three would show up. Instead, 19 workers crowded a small conference room at Local 5’s office. They were mostly quiet and concerned about the impact of sharing their story publicly.

Flordelito Basol, a Filipino immigrant who lives in Ewa Beach, said he didn’t want to cause trouble.

“They are very good companies,” he said of Hawaii Care and Cleaning and Hilton, where he still works as a utility steward. “Only the distribution of wealth is not good.”

Basol said when he started working for Hawaii Care and Cleaning several years ago, he didn’t realize what wages he should have been receiving.

“We just follow, follow, follow the commandment to clean,” he said. Like Marbou, he remembers a supervisor telling him not to talk to the union and not to discuss his wages.

Marbou said she and her coworkers were afraid when they filed the lawsuit in 2013. By that point, most of them had been hired directly by Hilton and had become union members. The pay raises they received once they switched employers were substantial even though they kept doing the same work — Marbou was finally able to afford life insurance.

She said she hasn’t experienced any retaliation for joining the lawsuit, but she still finds it frightening to speak to the media and pursue the grievance through Local 5.

Cory Lum/Civil Beat

Hanging over her head are the attorneys’ fees that she and her co-workers have been ordered to pay.

Hawaii Care and Cleaning initially sought $162,869.03 in attorneys’ fees, which would have required each plaintiff to pay $4,653.40. Attorney Robert Katz wanted the janitors to pay him $450 per hour.

The judge thought that amount was too high, settling on $97,966.45. But that still worries Marbou, who says she couldn’t afford to pay her share all at once.

The court order doesn’t include a deadline for the payments. Chief Deputy Gina Doane from the U.S. District Court of Hawaii said she couldn’t comment on what would happen if the plaintiffs can’t pay.

Rodelas said she can’t predict how long it will take to resolve the grievance with the Hilton. It could be years before the workers receive any money, if they ever do.

That doesn’t stop them from thinking about what they would do with it. Mojeeb Rinton, who would have received $25,405.95 from July 2008 to June 2013 if he had been paid a union wage, said he would put the money into a college account for his son, who is 1 1/2.

Marbou, who missed out on $17,689.56 in raises from 2010 to 2013, said she would finally buy a car after living in Hawaii for more than a decade and relying on the bus system.

“There’s a sign on the bus that says, ‘See something, say something,’” she said, referring to a crime-fighting message. “I want my kids to know you have to stand up for what is right … We are very scared, but together we are standing up for this and hopefully in the long run they will think twice about doing this to other workers.”