Matson Terminals, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 2017

365 NLRB No. 56 (N.L.R.B. 2017)

365 NLRB No. 56
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Matson Terminals, Inc. and Hawaii Teamsters & Al-
lied Workers Union, Local 996. Case 20–CA–
187970
April 7, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge and an amended charge
filed on November 9 and December 16, 2016, respective-
ly, by Hawaii Teamsters & Allied Workers Union, Local
996 (the Union), the General Counsel issued the com-
plaint on December 29, 2016, alleging that Matson Ter-
minals, Inc. (the Respondent) has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to recognize and bargain with it following the Union’s
certification in Case 20–RC–173297. (Official notice is
taken of the record in the representation proceeding as
defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the complaint,
and asserting affirmative defenses.
On February 1, 2017, the General Counsel filed a Mo-
tion for Summary Judgment. On February 3, 2017, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent thereafter filed
an opposition to the summary judgment motion.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification of repre-
sentative on the basis of its contention that the peti-
tioned-for employees are statutory supervisors as defined
by the Act and/or are managerial employees excluded
from the Act’s coverage.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding.1 We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Hawaii corpo-
ration with offices and a facility located in Hilo, Hawaii,
has been engaged in providing stevedoring and terminal
operations.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, purchased and received goods at its
Hilo facility valued in excess of $50,000 from points
outside the State of Hawaii.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
At all material times, Kevin Dietsch held the position
of the Respondent’s vice president and has been an agent
of the Respondent within the meaning of Section 2(13)
of the Act.
Following the representation election held on May 19,
2016, the Union was certified on May 27, 2016, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

1 In its answer to the complaint and its opposition to the General
Counsel’s Motion for Summary Judgment, the Respondent raises, for
the first time in these proceedings, the argument that certification was
improper because the petitioned-for employees are managerial employ-
ees excluded from the Act’s coverage. The Respondent advances no
evidence in support of this argument, however, and presents no reason
as to why this argument was not raised in the prior representation pro-
ceeding.
2 The Respondent’s request that the complaint be dismissed is there-
fore denied.
Member Miscimarra would have granted review in the underlying
representation proceeding regarding whether the petitioned-for supervi-
sors and senior supervisors possess supervisory authority under Sec.
2(11) of the Act. While he remains of that view, he agrees, however,
that the Respondent has not raised any new matters that are properly
litigable in this unfair labor practice proceeding and that summary
judgment is appropriate, with the parties retaining their respective
rights to litigate relevant issues on appeal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All full-time and regular part-time supervisors and sen-
ior supervisors employed by Matson Terminals, Inc. on
the Island of Hawaii, excluding all other employees,
managers, guards, and supervisors as defined in the
Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated August 15, 2016, the Union requested
that the Respondent recognize and bargain collectively
with it as the exclusive collective-bargaining representa-
tive of the unit. Since about October 26, 2016, the Re-
spondent has failed and refused to recognize and bargain
with the Union.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since October 26, 2016, to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
appropriate unit, 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.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Matson Terminals, Inc., Hilo, Hawaii, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Hawaii Teamsters & Allied Workers Union, Local 996
as the exclusive collective-bargaining representative of
the employees in the bargaining unit.
(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
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time supervisors and sen-
ior supervisors employed by Matson Terminals, Inc. on
the Island of Hawaii, excluding all other employees,
managers, guards, and supervisors as defined in the
Act.
(b) Within 14 days after service by the Region, post at
its facility in Hilo, Hawaii, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized representa-
tive, 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. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, 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 October 26, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

3 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.”
MATSON TERMINALS, INC. 3
Dated, Washington, D.C. April 7, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Hawaii Teamsters & Allied Workers Union, Local
996 as the exclusive collective-bargaining representative
of our employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
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 fol-
lowing appropriate bargaining unit:
All full-time and regular part-time supervisors and sen-
ior supervisors employed by us on the Island of Ha-
waii, excluding all other employees, managers, guards,
and supervisors as defined in the Act.
MATSON TERMINALS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/20–CA–187970 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.