Matson Terminals, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 2014

361 NLRB No. 50 (N.L.R.B. 2014)

361 NLRB No. 50
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–
132200
September 26, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
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 filed by Hawaii Team-
sters & Allied Workers Union, Local 996 (the Union) on
July 3, 2014, the General Counsel issued the complaint
on July 16, 2014, alleging that Matson Terminals, Inc.
(the Respondent) has violated Section 8(a)(5) and (1) of
the Act by refusing the Union’s request to recognize and
bargain and to furnish relevant and necessary infor-
mation following the Union’s certification in Case 20–
RC–121101. (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(g).
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer and an amended answer, admitting in
part and denying in part the allegations in the complaint,
and asserting affirmative defenses.
On August 1, 2014, the General Counsel filed a Mo-
tion for Summary Judgment. On August 6, 2014, 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 filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain and to
furnish requested information, but contests the validity of
the certification based on its position that the petitioned-
for employees are managerial employees and supervisors
within the meaning of Section 2(11) of the Act. In addi-
tion, the Respondent contends that the Acting Regional
Director improperly made credibility resolutions based
on the preelection hearing, and that this is a special cir-
cumstance warranting an evidentiary hearing before an
administrative law judge.
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).
We also find that there are no factual issues warranting
a hearing with respect to the Union’s request for infor-
mation. The complaint alleges that by letter dated June
13, 2014, the Union requested the following information:
Names, classifications, hourly wage rates, and hire
dates for each employee in the unit.
It is well established that information concerning the
terms and conditions of employment of unit employees is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request. See, e.g.,
Metro Health Foundation, Inc., 338 NLRB 802, 803
(2003). The Respondent has not asserted any basis for
rebutting the presumptive relevance of the information.
Rather, the Respondent raises as an affirmative defense
its contention, rejected above, that the Union was im-
properly certified. We find that the Respondent unlaw-
fully refused to furnish the information sought by the
Union.
Accordingly, we grant the Motion for Summary Judg-
ment.
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 Honolulu,
Hawaii, has been engaging 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

1 We reject the Respondent’s contention that a special circumstance
exists because, according to the Respondent, the Acting Regional Di-
rector improperly made credibility resolutions based on the preelection
hearing. In this regard, we note that the Respondent’s request for re-
view in the representation proceeding did not make any such claim and
did not seek review of the Acting Regional Director’s Decision and
Direction of Election on this basis. The Respondent, therefore, is pre-
cluded under Sec. 102.67(f) of the Board’s Rules from raising the issue
in this proceeding. See Superior Protection, Inc., 341 NLRB 267, 267–
268 (2004), enfd. 401 F.3d 282 (5th Cir. 2005), cert. denied 546 U.S.
874 (2005); Ritz-Carlton Hotel Co., 321 NLRB 659, 659 fn. 1 (1996),
enfd. 123 F.3d 760 (3d Cir. 1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
Honolulu 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
Following the representation election held by mail bal-
lot, the Union was certified on June 11, 2014, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time Container Vessel
Stevedoring (CVS) Superintendents, CVS Senior Su-
perintendents, Container Yard (CY) Supervisors and
Yard Controllers employed by Matson Terminals, Inc.
in its Honolulu, Hawaii operation; excluding CVS Sen-
ior Superintendents who work at the Employer’s Pier 2
operation, clerical employees, managerial employees,
guards and supervisors as defined by 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 letters dated June 13 and 26, 2014, the Union re-
quested that the Respondent recognize and bargain with
it as the exclusive collective-bargaining representative of
the unit employees and, since June 30, 2014, the Re-
spondent has refused to do so. By letter dated June 13,
2014, the Union requested that the Respondent furnish it
with the information set forth above that is necessary for,
and relevant to, the Union’s performance of its duties as
the exclusive collective-bargaining representative of the
unit. By letter dated June 30, 2014, the Respondent re-
fused to furnish the Union with the requested information
described above.
We find that these failures and refusals constitute 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 June 30, 2014, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the
appropriate unit, and by failing and refusing to furnish
the Union with requested information regarding the
terms and conditions of employment of employees in the
unit, the Respondent has engaged in unfair labor practic-
es 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. We shall also order the Respond-
ent to furnish the Union with the information it requested
on June 13, 2014.
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 Construc-
tion 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., Honolulu, 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) Failing and refusing to furnish the Union with re-
quested information that is relevant and necessary to its
role as the exclusive collective-bargaining representative
of the unit employees.
(c) 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 exclusive
collective-bargaining 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 full-time and regular part-time Container Vessel
Stevedoring (CVS) Superintendents, CVS Senior Su-
perintendents, Container Yard (CY) Supervisors and
Yard Controllers employed by Matson Terminals, Inc.
in its Honolulu, Hawaii operation; excluding CVS Sen-
ior Superintendents who work at the Employer’s Pier 2
3
MATSON TERMINALS, INC.
operation, clerical employees, managerial employees,
guards and supervisors as defined by the Act.
(b) Furnish the Union in a timely manner with the in-
formation it requested on June 13, 2014.
(c) Within 14 days after service by the Region, post at
its facility in Honolulu, Hawaii, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 20,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since June 30, 2014.
(d) 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.
Dated, Washington, D.C. September 26, 2014
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Harry I. Johnson, III, Member
______________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

2 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.”
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 the employees in the bargaining unit.
WE WILL NOT fail and refuse to furnish the Union with
requested information that is relevant and necessary to its
role as the exclusive collective-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
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 bargaining unit:
All full-time and regular part-time Container Vessel
Stevedoring (CVS) Superintendents, CVS Senior Su-
perintendents, Container Yard (CY) Supervisors and
Yard Controllers employed by Matson Terminals, Inc.
in its Honolulu, Hawaii operation; excluding CVS Sen-
ior Superintendents who work at the Employer’s Pier 2
operation, clerical employees, managerial employees,
guards and supervisors as defined by the Act.
WE WILL furnish the Union in a timely manner with
the information it requested on June 13, 2014.
MATSON TERMINALS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-132200 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.