Makaha Valley, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1979

241 N.L.R.B. 300 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Makaha Valley, Inc. and Hotel, Restaurant Employ-
ees, and Bartenders' International Union, Local 5,
AFL-CIO and Laborers' International Union of
North America, Local 368, AFL-CIO. Cases 37-
CA-1445 and 37-CA-1449
March 21, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On September 27, 1978. Administrative Law Judge
Russell L. Stevens issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supportng brief, and the General Counsel filed
a letter in response to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
In its exceptions Respondent contends, inter alia, that inasmuch as there
was a 17-month hiatus between the operation of the Makaha Inn and Coun-
try Club by the debtor Hawaii Daiichi-Kanko, Inc., and the takeover by
Respondent on November 1, 1977. the obligation to bargain incurred by the
debtor, which would normally devolve upon a successor employer, did not
survive. Contrary to Respondent. we find that when the Board speaks of a
"hiatus," as in Blazer Industries, Inc., 236 NLRB 103 (1978), it refers to a
period of time when the employing enterprise ceases to exist as it had prior
to the insolvency proceeding and is either (1) totally dormant; (2) engaged in
activities associated with the termination of its operation; or (3) engaged in
activity totally dissimilar to that of the bankrupt. As Carson, the trustee in
bankruptcy, continued the complex as a recreation lodge facility, employing
the same employee complement as the debtor, for the 17-month period in
question, we find the use of the term "hiatus" inapplicable herein. Accord-
ingly, we find Respondent's exception without merit.
Respondent also contends that the Administrative Law Judge erred in not
finding that Respondent had merged the operation of the East and West golf
courses, a factor, Respondent asserts, that evidences a distinct change in the
employing enterprise. Contrary to Respondent, we find, based on the testi-
mony of Respondent's vice president, that there was no merger of the two
golf courses and that after the takeover each course retained a working
integrity.
In adopting the finding of the Administrative Law Judge, we do not rely
on his comment that a majority of the employees hired by Respondent were
originally members of the debtor's work force, as the documents in evidence
refer only to the employee complement under Carson, prior to November 1,
1977, and to Respondent's work force immediately thereafter. Having found
Carson to be the alter ego of the debtor, we need not examine the employee
complement of the debtor to determine if that factor will support a finding
that Respondent is a successor employer. Rather, we need only look to the
employee complement of the immediate predecessor, in this case the trustee
in bankruptcy, to determine the efficacy of such a factor. As the record
indicates that a majority of Respondent's work force were employees under
Carson, we rely thereon in reaching our decision herein.
The General Counsel has filed a motion to correct the Administrative L.aw
Judge's Decision, noting that in the fourth paragraph of the section of his
Decision entitled "Discussion" the Administrative Law Judge mistakenly
referred to Carson's management contracts with Regent and Carson and
Carson's agents, Regent and Carson. In view of the context in which these
comments arose, we are convinced that the Administrative Law Judge inad-
vertently referred to Regent and Carson when in both instances he intended
to refer to Regent and Shelion. Accordingly, we grant the General Counsel's
motion and hereby correct the two inadvertent errors.
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Makaha Valley, Inc.,
Waianae, Hawaii, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, except that the attached notice is
substituted for that of the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize Local 5. Ho-
tel, Restaurant Employees, and Bartenders' In-
ternational Union, AFL-CIO. as the exclusive
bargaining representative of our employees in
the following appropriate unit:
All employees employed by us at the Makaha
Inn and Country Club in the housekeeping,
maintenance, telephone, stewards, uniformed
services, beverage service, food service, food
preparation, grounds and miscellaneous, cleri-
cal and golf services departments, excluding
all other employees, guards and supervisors as
defined in the Act.
WE WILL NOT refuse to recognize Laborers' In-
ternational Union of North America, Local 368,
AFL-CIO, as the exclusive bargaining represent-
ative of our employees in the following appropri-
ate unit:
All golf course grounds maintenance employ-
ees employed by us at the Makaha Inn and
Country Club, including mechanics, spray-
men, equipment operators and utilitymen; ex-
cluding all other employees, clerical employ-
ees, confidential employees, professional
employees, casual employees, temporary em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under Section 7 of the
Act.
WE WILL. immediately recognize and, upon re-
quest, bargain in good faith with Locals 5 and
241 NLRB No. 34
300
MAKAHA VALLEY, INC.
368 relative to collective-bargaining agreements
covering employees in the aforesaid units and, if
an understanding is reached, embody such un-
derstanding in signed agreements.
MAKAHA VALLEY, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard in Honolulu, Hawaii, on July 11, 12, and
13, 1978.' The complaint in Case 37-CA--1445 is based
upon a charge filed November 16 by Hotel. Restaurant Em-
ployees, and Bartenders' International Union, Local 5,
AFL- CIO (Local 5). The complaint in Case 37 CA- 1449 is
based upon a complaint filed December 19 by Laborers'
International Union of North America, Local 368, AFL-
CIO (Local 368). Both cases allege that Makaha Valley,
Inc. (Respondent) violated Section 8(a)(5) and (I) of the
National Labor Relations Act, as amended (the Act). By
order issued May 2, 1978, the acting Regional Director of
the National Labor Relations Board for Region 20 consoli-
dated the aforesaid two cases for hearing. The consolidated
cases were heard as aforesaid.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel and Respondent.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
During the 12-month period from November 1, 1976, to
October 31, 1977, Trustee Carson, in the operation of
Makaha Inn and Country Club, received gross revenues in
excess of $500,000 and purchased and received goods and
materials valued in excess of $50,000 directly from suppliers
located outside the State of Hawaii.
During the past calendar year, Respondent received
gross revenues in excess of $500,000 and purchased and
received goods and materials valued in excess of $50,000
directly from suppliers located outside the State of Hawaii.
During the period from November 1, 1977 to October 31,
1978, Respondent in the ownership and operation of
Makaha Inn and Country Club, will receive gross revenues
in excess of $500,000, and will purchase and receive goods
and materials valued in excess of $50,000 directly from sup-
pliers located outside the State of Hawaii.
I find that at all times material herein prior to November
., 1977, Daiichi and Trustee Carson were employers en-
gaged in commerce and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
I further find that Respondent is, and at all times mate-
rial herein has been, an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Hotel, Restaurant Employees, and Bartenders' Interna-
tional Union. Local 5, AFL-CIO, and Laborers' Interna-
tional Union of North America, Local 368, AFL-CIO. are,
and at all times material herein have been, labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background3
FINDINGS OF FACT
1. JURISDICTION
From May 1973 until October 31, 1977, Hawaii Daiichi-
Kanko, Inc., d/b/a Makaha Inn and Country Club (Dai-
ichi), owned a resort complex consisting of a hotel, restau-
rant, golf course, and related facilities, herein referred to as
Makaha Inn and Country Club (Inn), located at Waianae,
Hawaii.
Pursuant to bankruptcy proceedings instituted by Daiichi
in May 1976, Cale Carson' was appointed trustee of the
Inn, and said trusteeship remained in effect until on or
about October 31, 1977. During the period of trusteeship,
Carson and his agents operated the Inn.
On November 1, 1977, Respondent, a Hawaii corpora-
tion, purchased the Inn and has owned and operated it
since that date.
During the 12-month period from May 1, 1975 to April
30, 1976, Daiichi received gross revenues in excess of
$500,000 and purchased and received goods and materials
valued in excess of $50,000 directly from suppliers located
outside the State of Hawaii.
I All dates hereinafter are within 1977, unless stated otherwise.
2 All individuals are referred to herein by their last names.
Respondent originally owned the Inn, which included the
same facilities as at present, except there then were two golf
courses rather than only one. The courses were known as
the West Course and the East Course. Daiichi became de-
linquent in its purchase payments, and Respondent, the
mortgagee, foreclosed. Daiichi deeded back to Respondent
title to the East Course as partial payment on the purchase
price. Daiichi continued to operate the East Course until
April 1976, after which there was no relationship between
the Inn and the East Course, so far as the issues herein are
concerned.
Carson was appointed trustee in the bankruptcy of Dai-
ichi, effective May 20. 1976. The business of which Carson
thereby assumed control consisted of a hotel and inn of 196
rooms, restaurant and lounge facilities, and the West
Course. From May 20 until October 1, 1976, Carson re-
tained the former management of the Inn to operate the
Inn. The manager during that period of time was Hideo
Shoji. From October 1, 1976, to January 31, 1977, Carson
contracted with Regent International Hotels, Limited (Re-
gent) to manage the Inn and to write a feasibility report
3 Most of this background summary is based upon the unchallenged testi-
mony of Carson, who was an unusually impressive witness and whose testi-
mony is credited in its entirety.
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning continuance of the Inn. Joe Shelton was Re-
gent's manager of the Inn. Effective February 1, Carson
arranged for Shelton personally to become manager of the
Inn, responsible directly to Carson. The arrangement Car-
son had with Shelton continued until midnight, October 31,
when Carson discontinued as trustee and turned over re-
sponsibility for the Inn to Respondent. who was the bank-
ruptcy purchaser of the Inn. Carson deeded the property to
Respondent effective January 1, excepting therefrom a 44-
acre parcel to be held for 5 years by Carson as trustee, to
secure payment to creditors and mortgage holders. On No-
vember 1, Respondent employed Regent to manage the
Inn, pursuant to a plan of reorganization under the bank-
ruptcy proceedings. Regent has full management authority,
including that of hiring and firing, but all employees are
paid from Respondent's account, along with certain other
items of expense. Such payments are made on a monthly
basis, by check given to the Inn by Respondent. Prior to
November 1, the Inn and the West Course were under com-
mon supervision, but when Respondent engaged Regent as
manager of the Inn, Respondent retained management of
the West Course.
When Carson became trustee, the Inn was under con-
tract,4 through Daiichi, with Locals 5 and 368. Local 5 rep-
resented approximately 50 employees who worked in the
hotel, restaurant, and other facilities except the West
Course. Local 368 represented 15 to 20 employees who
worked as the maintenance crew for the golf course and
who also were the groundskeepers for the Inn. When he
became trustee, Carson was aware of the two bargaining
agreements and soon thereafter realized that the Inn could
not afford to make all fringe benefit payments due under
those contracts. His alternatives were to reduce or eliminate
the payments or to close the Inn. Payments then delinquent
were those for health and welfare, pensions, dental care,
and vacation and sick leave. In June 1976, Carson in-
structed the assistant manager of the Inn, Mr. Edwards, to
inform the bookkeeper, who also was the shop steward, and
the two Unions that fringe benefits provided for in the con-
tract no longer would be made. However, the bookkeeper
failed to follow her instructions, and the payments contin-
ued through September, when they were stopped. Carson
met with two officials of Local 5, Anthony and Arthur Rut-
ledge, sometime between October I and December 1, 1976,
and advised them of the necessity for stopping fringe bene-
fit payments. The two Rutledges expressed their apprecia-
tion of Carson's efforts to keep the Inn in operation, and
neither of them opposed cessation of fringe benefit pay-
ments. Carson then instructed the bookkeeper to give to
"proper authorities of Local 368" the same explanation.
Early in 1977, Carson called Albert Keamo, business agent
for Local 368, on the telephone and explained the situation
as he had explained it to Anthony and Arthur Rutledge.
During the period of Carson's trusteeship, he recognized
4 The Local 368 contract expired on December 31, 1975, but, as explained
herein. Carson followed much of the contract thereafter, including wage
scales and union-security provisions, and dealt with Local 368 officials as
representatives of employees. Further, when Carson became trustee. Daiichi
was honoring the contract with Local 368, pursuant to the contract's auto-
matic renewal provisions.
that union contracts existed, and he followed some of the
terms of those contracts; however, as noted above, he did
not follow all contractual provisions. Also during Carson's
period of trusteeship, he conferred with union officials on
several occasions, personally and by telephone. The trust-
ee's plan of reorganization refers in general terms to the
bargaining agreements between the Inn and Locals 5 and
368, but those agreements never were assumed by the
trustee or by Respondent, and Respondent informed Car-
son that it would not assume the agreements. However,
Carson deducted and transmitted union dues during his
trusteeship, and payroll records of the Inn reflect union
membership of employees.
In October 1977, Carson met, and talked, on several oc-
casions with Dean Ho, Respondent's vice president, and
Donald Wong, treasurer of Capital Investment, which owns
83 percent of Respondent's stock. The purpose of the meet-
ings, among other things, was to discuss employment poli-
cies that Respondent intended to follow when it assumed
control of the Inn. They discussed in detail the agreements
with Locals 5 and 368 and "the abbreviated agreement of
the contract that [Carson] had orally with the Unions' rep-
resentatives." The three scheduled a meeting with all em-
ployees, to be held in mid-October, for the purpose of ex-
plaining the change of ownership, and employment
conditions and standards established by Respondent. Car-
son was requested by Ho and Wong to ask for the resigna-
tion of all employees effective October 31 and to invite all
employees to reapply for employment by Respondent; ap-
plicants would be screened and interviewed for possible
hire. The meeting was held as scheduled. Locals 5 and 368
were invited to the meeting, but no representatives of the
Unions attended. Both locals were advised by letter of the
terminations of October 31. All employees applied for
reemployment, and all except one later were interviewed
and rehired by Respondent.
On November 10, Richard Tam, secretary-treasurer of
Local 5, wrote the following letter to Shelton:
Dear Mr. Shelton:
We represent a majority of the employees who have
been rehired by you. These employees were included in
the bargaining unit covered by a union contract with
the previous owner which had an expiration date of
May 31, 1978.
I am repeating our demand that you either recognize
our agreement with the previous owner or meet with us
to negotiate a new contract.
Respondent's counsel marked for identification as his Ex-
hibit I a letter which may have been a reply to Tam's letter,
but that exhibit was not offered into evidence. In any event,
Respondent has not recognized, bargained, or contracted
with Local 5.
In November or December, Elmo Samson of Local 368
visited Ho and presented to him a proposed contract and
some brochures. Ho testified that he believed Samson's ac-
tions constituted a demand for recognition, and Ho gave
the material Samson left to his attornev. He told Samson he
did not feel obliged to recognize Local 368. Respondent has
not recognized, bargained, or contracted with Local 368.
302
MAKAHA VALLEY, INC.
B. Phivsical Facilities
Ho credibly testified that, when Respondent assumed
ownership and control of the Inn and West Course on No-
vember I, the premises were deteriorated and required ex-
tensive repairs and rehabilitation. Included were replace-
ment of golf carts that had deteriorated; purchase of new
maintenance equipment; resurfacing of the tennis courts;
replacement of West Course greens; rerouting of traffic
near the West Course: installation of a bridge near the
cocktail lounge; excavation and building of a holding area
for golf carts: improvement of landscaping: replacement of
wornout air-conditioning units; replacement of wornout
roofs; expansion of the golf cart shed: and interior alter-
ations of the dining room and cocktail lounge. In order to
complete the repairs and renovation, it was necessary on
occasion temporarily to close some of the facilities.
Ho further testified that there was no change in the basic
concept of the Inn. Prior to November I. the Inn had ap-
proximately 20 buildings, including a bungalow-type lodg-
ing layout covering approximately 18 acres, two dining
rooms, and two bars. At the present time those buildings
remain the same, although they have been repaired and
modified to some extent. The West Course, the lodging fa-
cilities, the food and beverage areas, the tennis courts, and
the grounds remain devoted to the same purposes as before
November 1.
C. Management
Respondent owns the premises involved herein, hires Re-
gent, under a contract, to manage all facilities except the
West Course. and itself manages the West Course.' Regent
has authority to carry out all functions of management, but
only within the ambit of budgetary restrictions imposed by
Respondent. Regent and Respondent are separate entities,
with no cross-ownership. Ho is not an officer or employee
of, or otherwise related to, Regent, other than through the
management contract between Regent and Respondent.
D. Personnel
After Respondent purchased the Inn and assumed con-
trol of it on November 1, its employees were, with one ex-
ception, the same employees who were employed when
Carson was trustee. Documents in evidence show that Re-
spondent hired at least 10 of the 15 groundskeepers and golf
course employees, and 51 of the 88 hotel employees, for-
merly employed by Daiichi. Records in evidence also show
that the unit employees were, and are, members of Locals 5
and 368. Employees regularly are paid with Respondent's
funds, transmitted monthly to Regent.
E. Discussion
When Carson assumed control of the Inn as trustee in
bankruptcy, he did not change the physical facilities, the
employee complement, or the concept of the Inn and its
components as a lodge-recreation area. He maintained the
complex intact, for the purpose of operating it, pending
I West Course sales (pro shop) are managed by Regent.
final disposition of the assets. Carson was an employer
within the meaning of the Act,6 and further, Carson was
Daiichi's alter ego.7 Carson recognized Locals 5 and 368 as
representatives of the employees. He kept those Locals ad-
vised of his actions, and he respected their status as repre-
sentatives. He did not honor all terms of the bargaining
agreements, but he did honor those that the financial situ-
ation permitted him to honor. Possibly, as argued by Re-
spondent, Carson's actions in disavowing parts of the con-
tracts with Locals 5 and 368 were in violation of the Act,8
but no such violations were alleged or heard. The two Lo-
cals were pleased that Carson was able to provide jobs for
the employees, and did not object to his actions.
When Respondent became the purchaser of the premises
on November 1, it did so with the purpose of continuing the
complex as a lodge-recreation area using the same physical
facilities (as repaired and somewhat modified), using almost
all the same employees used by Carson, and using most of
the same employees who had been employed by Daiichi.
Although Respondent uses a manager, Regent, to oper-
ate facilities other than the West Course.9 Respondent is in
complete control of the Inn. Respondent pays all employ-
ees' salaries and all expense shortfalls. Respondent estab-
lished the budget within which Regent is required to oper-
ate. Respondent selected Shelton as the operator of the Inn
under the Regent contract. Respondent alone manages the
West Course grounds. Respondent advised the Unions that
it did not feel obligated to bargain with them, thereby em-
phasizing its control over the labor relations of the Inn.
That decision was a final one, with no reference to Regent.
Regent operates the Inn for, and in the name of, Respon-
dent. Regent is Respondent's agent. Under such circum-
stances, Respondent has been at all times since November
the employer of Inn employees within the meaning of the
Act. As a successor to Daiichi and Carson, Respondent is
obligated to recognize and bargain with Locals 5 and 368 as
representatives of its employees.' °0
The fact that a trustee was in control of the Inn from
May 20, 1976, until October 31, 1977, does not, as argued
by Respondent, relieve Respondent from the responsibility
of recognizing and bargaining with Locals 5 and 368 as
representatives of employees in the appropriate units de-
scribed infra. The intervening trusteeship did not alter Re-
spondent's status as a successor employer, since Carson was
Daiichi's alter ego.'' Respondent argues that Carson "cut
off' the successorship line between Daiichi and Respon-
dent, by his management contracts with Regent and Car-
son. That argument is without merit, since Regent and Car-
son were only Carson's agents. Carson continued at all
times to recognize the two locals and to work with them as
6
Airport Limousine Service. Inc., etc., 231 NLRB 932 (1977); Hoosier Ve-
neer Company. 21 NI.RB 907, 935 (1940).
'Airport Limousine Seril-e. Inc, supra, Cagles, Inc.. 218 NLRB 603
(1975).
gAirport limousine Service, Inc. supra.
' Respondent did not offer into evidence the contract between Respondent
and Regent.
IjV L.R B. v. Burns International Securie Services, Inc., 406 U.S. 272
(1972); Howard Johnson Co., Inc. v. Detroit ocal Joint Executive Board
Hotel & Restaurant Emplovees & Bartenders International U'nion, A FL. CIO,
417 U.S. 249 (1974).
1 Airport Limousine Service, Inc, supra, Cagle's Inc., supra.
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of the unit employees. Further, Carson con-
tinued to honor part of the contracts with Locals 5 and 368.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMER( E
Respondent's activities set forth in section III, above, oc-
curring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
v. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and to take certain affirmative action, as
provided in the recommended Order below, designed to ef-
fectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Locals 5 and 368 are labor organizations within the
meaning of Section 2(5) of the Act.
3. At all times material herein prior to November 1, em-
ployees employed by Daiichi at the Makaha Inn and Coun-
try Club in the housekeeping, maintenance, telephone,
stewards, uniformed services, beverage service, food service,
food preparation, grounds and miscellaneous, clerical, and
golf services departments, excluding all other employees,
guards, and supervisors as defined in the Act, constituted a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times prior to November 1, Local 5 was the
representative of a majority of the employees in the unit
described in Conclusion of Law 3, above, and by virtue of
Section 9(a) of the Act has been, and now is, the exclusive
bargaining representative of all employees in said unit for
purposes of collective bargaining.
5. At all times since November 1, all employees em-
ployed by Respondent at the Makaha Inn and Country
Club in the housekeeping, maintenance, telephone, stew-
ards, uniformed services, beverage service, food service,
food preparation, grounds and miscellaneous, clerical, and
golf services departments, excluding all other employees,
guards, and supervisors as defined in the Act, have consti-
tuted a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
6. At all times since November 1, Local 5 has been the
representative of a majority of the employees in the unit
described in Conclusion of Law 5, above, and by virtue of
Section 9(a) of the Act has been, and is now, the exclusive
collective-bargaining representative of all employees in said
unit for purposes of collective bargaining.
7. At all times material herein prior to November , all
golf course grounds maintenance employees employed by
Daiichi at the Makaha Inn and Country Club, including
mechanics, spraymen, equipment operators, and utilitymen
and excluding all other employees, clerical employees, con-
fidential employees, professional employees, casual employ-
ees. temporary employees, guards, and supervisors as de-
fined in the Act, constituted a unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
8. At all times material herein prior to November 1, Lo-
cal 368 was the representative of a majority of the employ-
ees of Daiichi in the unit described in Conclusion of Law 7,
above, and by virtue of Section 9(a) of the Act was the
exclusive collective-bargaining representative of all employ-
ees in said unit for purposes of collective bargaining.
9. At all times since November I, all golf course grounds
maintenance employees employed by Respondent at the
Makaha Inn and Country Club, including mechanics,
spraymen, equipment operators, and utilitymen and exclud-
ing all other employees, clerical employees, confidential em-
ployees, professional employees, casual employees, tempo-
rary employees, guards, and supervisors as defined in the
Act, have constituted a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
10. At all times since November 1, Local 368 has been
the representative of a majority of the employees of Re-
spondent in the unit described in Conclusion of Law 9,
above, and by virtue of Section 9(a) of the Act has been,
and is now, the exclusive collective-bargaining representa-
tive of all employees in said unit for purposes of collective
bargaining.
11. Carson, as trustee in bankruptcy, on May 20, 1976,
became Daiichi's alter ego and thereby was required to rec-
ognize and bargain with Locals 5 and 368 with respect to
the above-described bargaining units.
12. Respondent as of November 1, became the successor
to Daiichi and Carson, and thereby was required to recog-
nize and bargain with Locals 5 and 368 with respect to the
above-described bargaining units.
13. On or about November 10, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize and
bargain in good faith with Locals 5 and 368 for employees
in the above-described appropriate bargaining units.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER"
The Respondent, Makaha Valley, Inc., Waianae, Hawaii,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize Locals 5 and 368 as the exclu-
sive bargaining representatives of its employees in the ap-
propriate units described above.
2l 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.
304
MAKAHA VALLEY, INC.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Recognize and, upon request, bargain in good faith
with Locals 5 and 368 relative to collective-bargaining
agreements covering the employees of said bargaining units
and, if an understanding is reached, embody such under-
standing in signed agreements.
(b) Post at its Makaha, Oahu, Hawaii, facilities copies of
the attached notice marked "Appendix." 3 Copies of said
'3 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
notice, on forms provided by the Regional Director for Re-
gion 20, after being duly signed by an authorized represent-
ative of Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
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."
305