Cutter of Maui, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1197 (N.L.R.B. 2005)

CUTTER OF MAUI, INC.
344 NLRB No. 143
1197
Cutter of Maui, Inc. and International Longshore and
Warehouse Union, Local 142, AFL–CIO. Case
37–CA–6521–1
July 29 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On March 24, 2005, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief to the Respondent’s
exceptions.
The National Labor Relations Board has considered
the decision and the stipulated record in light of the ex-
ceptions and briefs and has decided to affirm the judge’s
rulings, findings and conclusions and to adopt his rec-
ommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cutter of Maui, Inc., Kahu-
lui, Maui, Hawaii, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Meredith A. Burns, Esq., for the General Counsel.
Christopher S. Yeh, Esq. and Barry W. Barr Esq. (Marr, Hipp,
Jones & Wang), of Honolulu, Hawaii, for the Respondent.
Rebecca L. Covert, Esq. (Takahashi Masui, Vasconcellos &
Covert) of Honolulu, Hawaii, 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 Re-
spondent filed a timely answer in which it denied that it had
violated the Act. On February 3, 2005, before the scheduled

1 Chairman Battista notes that he joined the majority in denying the
Respondent’s request for review of the Regional Director’s supplemen-
tal decision in Case 37–RM–177 solely because the 8(a)(5) complaint
was pending. He recognizes, however, that because the majority ad-
dressed the merits of the Respondent’s arguments there the Board’s
disposition of that case precludes the relitigation of the merits here.
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
I. JURISDICTION
At all times material, Respondent, a Hawaii corporation,
with a place of business in Kahului, Maui, Hawaii, has been
engaged in the retail sale, maintenance and repair of automo-
biles. 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 re-
ceived goods valued in excess of $5000 that originated from
outside the State of Hawaii. At all times material, Respondent
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
At all times material, the Union has been a labor organiza-
tion 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 em-
ployees, guards and supervisors as defined in the Act.
On April 17, 2003, the Union’s vice president, Robert G. Gi-
rald, 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 stat-
ing that the workplace for the bargaining unit had been sold
and, therefore, it would be unlawful for the Employer to recog-
nize 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 dis-
missed the petition in Case 37–RM–177 on the ground that the
petition was filed within the 1-year certification period of Case
37–RC–4033. On June 20, Respondent filed a request for review

1 On March 31, 2003, the Employer sold part of its dealership lo-
cated on Hana Highway (the workplace of the unit employees at the
time of the certification) and transferred the unsold portion of the deal-
ership to its Kahului location. 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 employ-
ees employed at the Hana facility. The 15 employees at the Dairy Road
service department had been previously employed by Respondent at its
Hana location.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1198
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 Re-
spondent 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.
On August 27, the Board granted Respondent’s Request for
Review in Case 37–RM–377 and remanded the case for a hear-
ing and supplemental decision. On September 10, 2003, the
Union filed the instant unfair labor practice charge. On Febru-
ary 2, a hearing took place before a Board hearing officer in
Case 37–RM–77.
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 be-
cause 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 re-
view, on the grounds that “it raises no substantial issues war-
ranting review.”
III. CONCLUSIONS
This is a refusal to bargain case in which Respondent is contest-
ing the certification in an underlying representation case, Case 37–
RC–4033. The only difference from the usual test of certification
case is that in the instant case Respondent attacked the certifica-
tion 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 ser-
vice 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 evi-
dence, nor does Respondent allege any special circumstances
that would require the Board to reexamine the decision made in
the representation proceeding.
Section 102.67(f) of the Board’s Rules and Regulations pre-
cludes relitigating “in any related subsequent unfair labor prac-
tice 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,

2 Official notice is taken of the “record” in the representation pro-
ceedings, Cases 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).
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 reloca-
tion 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 re-
fused 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 bargain-
ing with the Union. As Respondent was challenging a 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 and July 14, 2003, the Union has re-
quested the Respondent to furnish information relevant to the
Union’s performance as exclusive collective-bargaining repre-
sentative of the unit employees. Since April 17, 2003, the Re-
spondent 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 viola-
tion 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 af-
fecting 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 af-
fecting 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 un-
derstanding in a signed agreement. I also recommend that Re-

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).
CUTTER OF MAUI, INC. 1199
spondent be ordered to furnish the Union the information re-
quested 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 certifica-
tion 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).
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 issue the following recommended4
ORDER
Respondent, Cutter of Maui, Inc., Kahului, Maui, Hawaii, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain with Interna-
tional 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 rele-
vant and necessary to its role as the exclusive bargaining repre-
sentative of the unit employees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, meet and bargain with the Union as the ex-
clusive representative of the employees in the following appro-
priate 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 em-
ployees, 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.
(c) Within 14 days after service by the Region, post at its fa-
cilities 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 Re-

4 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 purposes.
5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
spondent's authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or 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 Respon-
dent 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.
(d) 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.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
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, re-
strain, 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 em-
ployment for our employees in the appropriate bargaining unit:
All maintenance, parts and service employees employed by
us, excluding automobile salespersons, outside parts salesper-
sons, 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 infor-
mation 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, INC.