Cutter of Maui Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 24, 2005

37-CA-006521 (N.L.R.B. Mar. 24, 2005)

JD(SF)–25–05
Island of Maui, HI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

CUTTER OF MAUI, INC.

and Case: 37-CA-6521-1

INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 142, AFL-CIO

Meredith A. Burns, Esq. Honolulu, HI,
for the General Counsel.

Christopher S. Yeh, Esq. and Barry W. Barr Esq.,
(Marr, Hipp, Jones & Wang),
Honolulu, HI, for the Respondent.

Rebecca L. Covert, Esq.,
(Takahashi Masui, Vasconcellos & Covert)
Honolulu, HI, for the Union.

DECISION

Statement of the Case
JAY R. POLLACK, Administrative Law Judge: On September 10, 2003, International
Longshore and Warehouse Union, Local 142, AFL-CIO (the Union) filed the charge in this case
against Cutter of Maui, Inc. (Respondent or the Employer). On June 30, 2004, the Regional
Director for Region 20 of the National Labor Relations Board (the Board) issued a complaint
against Respondent. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act) by failing and refusing to recognize and bargain with
the Union and failing and refusing to furnish information requested by the Union that was
relevant to the Union’s performance of its duties as the exclusive collective-bargaining
representative of an appropriate unit of Respondent’s employees. The Respondent filed a timely
answer in which it denied that it had violated the Act. On February 3, 2005, before the
scheduled hearing in this case commenced, the parties jointly waived a hearing and agreed to
have the case decided on the basis of a stipulated record.

Based on the stipulated record submitted by the parties, and after considering the briefs,
I make the following findings of fact and conclusions of law:

Findings of Fact and Conclusions
I. Jurisdiction

At all times material herein, Respondent, a Hawaii corporation with a place of business in
Kahului, Maui, Hawaii, has been engaged in the retail sale, maintenance and repair of automobiles.
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During the calendar year ending December 31, 2002, Respondent derived gross revenues in
excess of $500.000. During the same time period, Respondent purchased and received goods
valued in excess of $5,000 that originated from outside the State of Hawaii. At all times material,
Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.

At all times material, the Union has been a labor organization within the meaning of Section
2(5) of the Act.

II. Facts

On January 10, 2003, the Regional Director for Region 20 conducted an election in Case
37-RC-4033. Pursuant to that election, on January 21, 2003, the Regional Director certified the
Union as the exclusive collective-bargaining representative of Respondent’s employees in the
following appropriate unit:

All maintenance, parts and service employees employed by Respondent, excluding
automobile salespersons, outside parts salespersons, dispatchers, service writers, office
clerical employees, guards and supervisors as defined in the Act.

On April 17, 2003, the Union’s vice president, Robert G. Girald wrote the Respondent’s
general counsel, Jan Wiedman, requesting that the parties commence bargaining immediately.
In this letter Girald also requested that the Employer provide the Union with certain information
regarding the bargaining unit employees. On May 9, 2003, Weidman wrote Girald stating that
the workplace for the bargaining unit had been sold and, therefore, it would be unlawful for the
Employer to recognize and bargain with the Union.

Also on May 9, Respondent filed a petition with the Board in Case 31-RM-177 seeking
an election for the parts and service employees at its dealership at 237 Dairy Road, Kahului,
Maui.1 On June 9, 2003, the Regional Director administratively dismissed the petition in Case
37-RM-177 on the ground that the petition was filed within the one-year certification period of
Case 37-RC-4033. On June 20, Respondent filed a Request for Review of the Regional
Director’s dismissal of the petition in Case 37-RM-377 with the Board in Washington, D.C.2

On July 14, Girald wrote Wiedman again asking that Respondent bargain with the Union
and provide the Union with the requested information. On July 25, Wiedman answered that
Respondent had filed a request for review with Board in the representation case and would
defer responding to the Union pending the review.

1 On March 31, 2003, the Employer sold part of its dealership located on Hana Highway (the
workplace of the unit employees at the time of the certification) and transferred the unsold
portion of the dealership to its Kahului locaion. On April 1, 2003, the Employer began operating
a new service department on Dairy Road. The new service department employed only
15 employees as opposed to the 35 employees employed at the Hana facility. The
15 employees at the Dairy Road service department had been previously employed by
Respondent at its Hana location.
2 Official notice is taken of the "record" in the representation proceedings, 37-RC-4033 and
37-RM-377, as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).

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On August 27, the Board granted Respondent’s Request for Review in Case 37-RM-377
and remanded the case for a hearing and supplemental decision. On September 10, 2003, the
Union filed the instant unfair labor practice charge. On February 2, a hearing took place before
a Board hearing officer in Case 37-RM-377.

On June 20, 2004, the Regional Director issued the instant unfair labor practice complaint.
On September 7, the Regional Director issued a supplemental decision and order in Case 37-
RM-377 dismissing the petition on the basis that it was filed within the one-year certification
period in Case 37-RC-4033. The Employer contended that no certification bar existed
because of the sale of its Hana dealership and relocation of its parts department. The Regional
Director found that “despite the reduction in the number of employees and product lines that has
taken place . . . there has been a substantial continuity in the bargaining unit and that a
certification bar remained in effect after the relocation to the new facility.”

On October 4, 2004, Respondent filed a Request for Review of the dismissal of its petition in
Case 37-RM-377. On October 20, 2004, the Board denied the Respondent’s Request for
Review, on the grounds that “it raises no substantial issues warranting review.”

III. Conclusions

This is a refusal to bargain case in which Respondent is contesting the certification in an
underlying representation case, 37-RC-4033. The only difference from the usual test of
certification case is that in the instant case Respondent attacked the certification collaterally by
filing a petition in Case 37-RM-377. As stated above, Respondent has refused to bargain with the
Union based on the sale of its Hana dealership and relocation of its parts and service
department. This issue was raised by the Respondent and litigated in the representation
proceeding in Case 37-RM-377. In the instant unfair labor practice case, Respondent did not
offer any newly discovered and previously unavailable evidence, nor does Respondent allege
any special circumstances that would require the Board to re-examine the decision made in
the representation proceeding.

Section 102.67(f) of the Board's Rules and Regulations precludes relitigating "in any
related subsequent unfair labor practice proceeding, any issue which was, or could have been,
raised in the representation proceeding." The Board has stated that "[s]ubsequent unfair labor
practice cases 'related' to prior representation proceedings include not only Section 8(a)(5)
refusal-to-bargain cases where there is a test of certification, but also, in appropriate
circumstances, unfair labor practice cases that arise under other sections of the Act." Hafadai
Beach Hotel, 321 NLRB 116 (1996). In the instant case, the relocation issue raised by the
Respondent was litigated in the prior representation proceeding. I therefore find that the
Respondent has not raised any representation issue that is properly litigable in this unfair labor
practice proceeding. See, Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, I am bound by the Board’s findings in the representation case.

Accordingly, the record shows that Respondent failed and refused to bargain
collectively with the exclusive-bargaining representative of its maintenance, parts and service
employees, in violation of Section 8(a)(1) and (5) of the Act. I find no merit to Respondent’s
argument that it merely deferred bargaining with the Union. As Respondent was challenging a
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recent Board certification, it was clearly doing so at its own risk.3 There is no evidence that
Respondent began bargaining after the Board denied its request for review on
October 24, 2004. Rather, Respondent is still contending that it is not obligated to recognize
or bargain with the Union based on changes in the bargaining unit, which occurred in March
and April 2003.

Further, since April 17, 2003, and July 14, 2003, the Union has requested the
Respondent to furnish information relevant to the Union’s performance as exclusive collective-
bargaining representative of the unit employees. Since April 17, 2003, the Respondent has
refused to bargain with the Union and has refused to furnish the Union with the requested
information. I find that these refusals constitute unlawful refusals to bargain in violation of
Section 8(a)(5) and (1) of the Act.

Conclusions of Law

1. Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. The Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act, by failing and refusing on
and after April 17, 2003, to meet and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate unit.

4. The Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act, by failing and refusing to
furnish the Union requested information relevant for purposes of collective bargaining.

Remedy

Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, I shall
recommend that it be ordered to cease-and-desist, to meet and bargain on request with the
Union, and, if an understanding is reached, to embody the understanding in a signed
agreement. I also recommend that Respondent be ordered to furnish the Union the information
requested in its letters of April 17 and July 14, 2003.

To ensure that the employees are accorded the services of their selected bargaining
agent for the period provided by the law, the Board shall construe the initial period of the
certification as beginning the date the Respondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962) ; Lamar Hotel, 140 NLRB 226, 229 (1962),
enfd. 328 F.2d 600 (5th Cir.1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).

3 Cf. W.A. Kreuger Co., 299 NLRB 914 (1990); Mike O’Connor Chevrolet, 209 NLRB 701
(1974) enf. denied other grounds 512 F.2d 684 (8th Cir. 1975).
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Upon the foregoing findings of fact and conclusions of law, and upon the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 4

ORDER

Respondent, Cutter of Maui, Inc., its officers, agents, successors and assigns shall:

1. Cease and desist from:

a. Failing and refusing to meet and bargain with International Longshore and
Warehouse Union, Local 142, AFL-CIO as the exclusive bargaining
representative of the employees in the bargaining unit.

b. Refusing to furnish the Union information that is relevant and necessary to its role
as the exclusive bargaining representative of the unit employees.

c. In any like or related manner interfering with, restraining, 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. On request, meet and bargain with the Union as the exclusive representative of
the employees in the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody the understanding in a
signed agreement:

All maintenance, parts and service employees employed by Respondent,
excluding automobile salespersons, outside parts salespersons, dispatchers,
service writers, office clerical employees, guards and supervisors as defined in
the Act.

b. Furnish to the Union in a timely fashion the information it requested in its letters of
April 17 and July 14, 2003, which information is relevant and necessary to its role
as the exclusive representative of the unit employees.

d. Within 14 days after service by the Region, post at its facilities in Maui, Hawaii,
copies of the attached notice marked "Appendix."5 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered, defaced, or
4 All motions inconsistent with this recommended order are hereby denied. In the event 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 purposes.
5 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read
"POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."
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covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since April 17, 2003.

e. Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

Dated: March 24, 2005, San Francisco, California.

_____________________
Jay R. Pollack
Administrative 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 Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain with International Longshore and Warehouse Union, Local 142, AFL-CIO as the
exclusive representative of the employees in the bargaining unit.

WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive
bargaining representative of the unit employees.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and
conditions of employment for our employees in the appropriate bargaining unit:

All maintenance, parts and service employees employed by us, excluding automobile salespersons, outside
parts salespersons, dispatchers, service writers, office clerical employees, guards and supervisors as defined
in the Act.

WE WILL furnish to the Union in a timely fashion the information it requested in its letters dated April 17 and July 14,
2003, which information is relevant and necessary to its role as the exclusive collective-bargaining representative of the
unit employees.

Cutter of Maui
(Employer)
Date By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional or
Sub Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.

901 Market Street, Suite 400, San Francisco, California, 94103
415-356-5130, Hours: 8:30 a.m. – 5:00 p.m. (PST)

Hawaii subregion
300 Ala Moana Boulevard, room 7-245, Honolulu, HI 96850
808-541-2814, Hours: 8:00 a.m. to 4:30 p.m. (H-AST)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
SUB-REGIONAL OFFICE’S. COMPLIANCE OFFICER, (415.356.5130).