International Shipping Agency, Inc. d/b/a INTERSHIP, Marine Terminal Services, Inc. (MTS), and Truck

National Labor Relations Board - Administrative Judge Opinions

Mar 30, 2016

24-CA-091723 (N.L.R.B. Mar. 30, 2016)

JD−24−16
San Juan, PR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
INTERNATIONAL SHIPPING AGENCY, INC.,
MARINE TERMINAL SERVICES, INC., and
TRUCK TECH SERVICES, INC., A SINGLE
EMPLOYER
and Cases 24–CA–091723
24–CA–104185
UNION DE EMPLEADOS DE MUELLES 12–CA–129846
(UDEM), ILA 1901, AFL-CIO 12–CA–133042
12–CA–135453
12–CA–135704
12–CA–136480
12–CA–142493
12–CA–143597
12–CA–144073
Isis M. Ramos-Melendez, Lilyvette Rodriguez-Soto and Manijee Ashrafi-Negroni, Esqs.,
for the General Counsel.
Antonio Cuevas-Delgado, Esq. and Lisabel M. Rodriguez-Espinosa (Cuevas Kuinlam, Marquez &
O'Neill), for the Respondent.
Vanessa I. Marzan-Hernandez, Esq. (Schuster Aguilo, LLC), and Elizabeth A. Alexander, Esq.
(Marrinan & Mazzola Mardon, P.C.), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case was heard in San Juan,
Puerto Rico, during the summer and fall of 2015. The three complaints alleged, inter alia, that
the International Shipping Agency, Inc. (Intership), Marine Terminal Services, Inc. (MTS) and
Truck Tech Services, Inc. (TTS) (collectively called the Respondent) were a single employer,
and violated Section 8(a)(1), (3) and (5) of the National Labor Relations Act (the Act).1
On the entire record, including my observation of the demeanor of the witnesses, and
after thoroughly considering the parties’ briefs, I make the following
1 The complaints consist of: the complaint dated July 31, 2013 (the first complaint); the complaint dated April 30,
2013 (the second complaint); and the complaint dated August 29, 2014 (the third complaint). (GC Exh. 1).
JD−24−16
2
FINDINGS OF FACT2
I. JURISDICTION
5 Intership, a stevedoring corporation, is located in Bayamon, Puerto Rico. Annually, it
purchases and receives goods exceeding $50,000 directly from points outside of Puerto Rico.
MTS repaired marine chassis and containers at its Bayamon, Puerto Rico facility. During the
12-month period ending December 31, 2012, MTS purchased and received goods exceeding
$50,000 directly from points outside of Puerto Rico. TTS repaired stevedoring vehicles and
10 equipment at its Bayamon, Puerto Rico facility.3 During the 12-month period ending December
31, 2012, TTS purchased and received goods exceeding $50,000 directly from points outside of
Puerto Rico. Intership, MTS and TTS admit, and I find, that they are employers engaged in
commerce, within the meaning of Section 2(2), (6) and (7) of the Act. They also admit, and I
find, that the Union is a labor organization, within the meaning of Section 2(5) of the Act.
15
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
20 This case explores whether Intership, MTS and TTS, were a single employer. It also
considers whether Intership’s closure of MTS and TTS, and related actions, were legitimate
business actions, or unlawful efforts designed to prevent unionization.
1. Intership
25
Intership handles and warehouses stevedoring freight.4 Its main terminal is located at
Pier M at the Bayamon docks. David Segarra is its President; Maria Caraballo-Gaud (Caraballo)
is its Chief Financial Officer; Enrique Ivan Sosa-Perez (Sosa) is its Operations Supervisor; and
Karen Figueroa is its Director of Human Resources. Intership and the Union have a
30 longstanding bargaining relationship, and the Union serves as the exclusive representative of the
following unit (the Intership unit):5
All cargo delivery and receiving employees, timekeepers and paymasters, pier
custodians, maintenance workers (e.g. mechanics, welders, electricians and
35 gasoline expenders), gatemen and tally clerks employed at its Bayamon, Puerto
Rico stevedoring and marine terminal facility, excluding all administrative
executive employees, professionals, supervisors, foremen, stevedores, guards and
all other employees.
40 (JT Exh. 2). Rene Mercado has, at all relevant times, served as the Union’s president.6 The
parties’ current agreement is expired, and they are attempting to negotiate a successor contract.
2 Unless otherwise stated, factual findings arise from joint exhibits, stipulations and undisputed evidence.
3 TTS repaired Kalmars (i.e., a brand of freight handling equipment), which includes cranes, forklifts and tractors.
4 Its major clients include Trailer Bridge, Inc. and Sea Star Lines.
5 There are roughly 60 employees in the Intership unit.
6 In June 2015, the Union was placed under a trusteeship, and Mercado was ousted. (CP Exh. 1).
JD−24−16
3
2. MTS
MTS, a wholly-owned Intership subsidiary, repaired and refurbished containers,7
5 chassis,8 and reefers.9 It employed mechanics, welders and painters, and mainly served
Intership,10 although it also had a few outside clients.11 Luis Ruiz was its General Manager.
3. TTS
10 TTS, a wholly-owned Intership subsidiary, was a motor vehicle repair shop, which
repaired Kalmars and other vehicles; it primarily served Intership. Sosa was its General
Manager; Ernesto Davila was an Operations Manager; Daren Ryan-Oppenheimer (Ryan) was an
Assistant Operations Manager; and Noel Lopez was a supervisor. Sosa set benefits and
policies,12 assigned, scheduled, and discharged workers. (R. Exhs. 28, 31–34). TTS handled its
15 own unemployment insurance issues and had its own personnel manual. (R. Exhs. 32, 34, 35).
B. Interrelationship between the Entities
1. Leadership
20
This chart describes Respondent’s hierarchy and leadership:
Name Intership Title MTS Title TTS Title
C. Alvarez PRES. OF BD. OF DIR. SAME ROLE SAME ROLE
Segarra PRES. & MBR. OF BD. OF DIR. SAME ROLE SAME ROLE
S. Alvarez VP & MBR. OF BD. OF DIR. SAME ROLE SAME ROLE
M. Dubron SEC. & MBR .OF BD. OF DIR. SAME ROLE SAME ROLE
J. Alvarez UNDERSECRETARY SAME ROLE SAME ROLE
P. Alvarez TREASURER SAME ROLE SAME ROLE
L. Alvarez UNDERTREASURER SAME ROLE SAME ROLE
Caraballo CHIEF FINANCIAL OFFICER SAME ROLE SAME ROLE
A. Vasquez COO SAME ROLE SAME ROLE
Quinones CONTROLLER SAME ROLE SAME ROLE
Ruiz TERMINAL SUPERVISOR G.M. UNTIL CLOSURE NO ROLE
Sosa VP - MAINTENANCE TECH. SUPPORT MGR. GM FROM 2011 TO CLOSURE
Lopez NO ROLE PROCUREMENT SPEC. SPECIAL PROJECT SUP.
Davila NO ROLE OPERATIONS MGR. OPERATIONS SUP.
Nogueras VP – CRANE DIVISION NO ROLE NO ROLE
R. Rivas TERMINAL SUP. NO ROLE NO ROLE
J. Martinez SECURITY OFFICER NO ROLE NO ROLE
(JT Exhs. 1, 6–8, 17–19, 20; GC Exhs. 17–20).
25
7 Containers are 20 or 40-foot long, steel, rectangular boxes that hold freight.
8 Chassis are wheeled, steel frames, which transport containers.
9 Reefers are refrigerated containers.
10 Intership could not do such work under the E.P.A. rules, which prohibit sandblasting and painting at the docks.
11 MTS also serviced Trailer Bridge, Sea Star and other clients.
12 He selected health and dental providers. See (R. Exh. 27).
JD−24−16
4
2. Collaboration
a. Services
5 Before closing, MTS serviced Intership’s chassis and equipment.13 (GC Exhs. 56-58).14
Frank’s Chassis & Repair now performs these services. Before closing, TTS serviced Intership’s
Kalmars, which were either repaired on-site,15 or transported by MTS. (GC Exhs. 27, 35). Tribo
Tech now performs these services.
10 b. Funding and Inventory
Intership loaned MTS funds for equipment, payroll and supplies. (GC Exh. 10).
Intership’s Quinones signed checks for MTS’ utilities and other bills. (GC Exhs. 7-9). Intership
also loaned TTS monies for operating expenses; Caraballo and Vasquez signed these checks.
15 Intership paid TTS’ utility and credit card bills, and accepted reimbursement. (GC Exhs. 13–16).
MTS also purchased inventory for TTS. (GC Exh. 46). TTS’ purchase orders, machinery and
uniforms bore an MTS logo (GC Exh. 34). Intership owned MTS’ and TTS’ facilities.
c. Common Labor Policy and Interchange
20
MTS did not have a human resources department; such matters were handled by
Intership. When MTS hired, the worker and Intership’s Figueroa would jointly sign the
employment contract. (GC Exh. 6). In 2005, Ruiz was assigned to MTS by Intership; in 2012,
he was promoted by Intership. Ruiz considered himself an Intership employee (tr. 74–75), and
25 continued to work for Intership, following MTS’ closure.
Intership’s Negron aided TTS with employee evaluations, discharges and other issues.16
(GC Exh. 52). Intership’s Quinones prepared TTS’ payroll. Sosa was appointed to TTS by
Intership, supervised by Intership, and uniformly appeared on Intership’s payroll.17 When Ryan
30 was hired at TTS, he received his offer from Intership, signed an employment contract at
Intership, and received business cards from them. (GC Exh. 12). Intership hired TTS’ Lopez,
and paid his wages, and then sought reimbursement from TTS.
3. Common Control
35 Intership held meetings, where MTS and TTS reported on their status. (R. Exh. 65).
Intership’s financial statements identified MTS and TTS as subsidiaries. (GC Exh. 54).
Intership made the final decision to close MTS and TTS.
13 Intership sent MTS 8 to 10 chassis per week for servicing.
14 These exhibits were admitted after the hearing.
15 Ryan credibly testified that 99% of TTS’ work was performed for Intership.
16 See, e.g., (GC Exhs. 22–25) (showing that TTS’ workers were hired and fired by Intership).
17 Sosa received business cards from both Intership and MTS. (GC Exhs. 17–18).
JD−24−16
5
C. September to October 2012 – MTS’ Election and Closure
1. Petition
5 On September 20, 2012, the Union filed a petition seeking to represent these MTS
employees (the MTS unit):18
All full-time mechanics, welders, utility, tire repair, and maintenance employees
employed by ... [MTS], but, excluding all other employees, managers, supervisors
10 and guards as defined in the Act.19
(JT Exhs. 1, 9–10).
2. Pre-Election Events
15
a. General Counsel’s Position
Jose Nater-Maisonet (Nater), an MTS employee, stated that, in September 2012, Ruiz
asked him whether he had spoken to the Union, told him to tell his coworkers to “side with the
20 Company,” warned that MTS would find out who signed Union cards, and threatened that “if the
Union ever came into MTS, the gates would close.” (Tr. 206). Socrates Escotto-Polanco
(Escotto), an MTS employee, recalled a similar exchange. Escotto stated that, in September
2012, Ruiz asked him whether he had heard any Union rumors, told him to identify their
supporters, and threatened that MTS would close, if it unionized. Jose Velasquez, an MTS
25 painter, said that in September 2012, Ruiz: told several workers that, if he learned who signed
Union cards, he would suspend them (tr. 241); said that MTS “would not accept … a union”
(tr. 242); and asked him who was leading the Union’s campaign.20
b. Respondent’s Position
30
Ruiz recalled hearing about the Union in September 2012, but, denied interrogating or
threatening workers. He said that he discussed the Union with a small group, whom he only
advised that the Union was not a good idea, but, remained their choice.
35 c. Credibility Resolution
Given that Ruiz denied the allegedly unlawful remarks at issue, and eight workers stated
otherwise, a credibility resolution must be made. For several reasons, I credit the several
employees, who were consistent and forthright. It is implausible that these employees
40 collectively concocted their stories, and still remained able to recount Ruiz’s actions with such
18 On September 21, the RC Petition was faxed to Segarra, who serves as tripartite role as Intership’s, MTS’ and
TTS’ president. (GC Exh. 36; tr. 838).
19 There were 16 employees in the unit. (JT Exh. 11B).
20 MTS employees Bryan Alvarado, Luis Allende, Jason Marrero, Angel Alfredo-Garcia (Alfredo) and Angel
Garcia Pabon (Garcia) corroborated Nater, Escotto and Velasquez, and collectively recalled Ruiz threatening plant
closure and job loss, asking about their Union activities, and soliciting them to vote against the Union.
JD−24−16
6
intricate detail and overall consistency. Ruiz’s plant closure threats were also consistent with
MTS’ closure, within days of the election.
3. Election and Closure
5
On October 17, 2012, an election was held, which the Union won. (JT Exhs. 12–13). On
October 19, without notice to the Union, MTS closed for “financial reasons.” (JT Exh. 14). On
October 30, the Union sought decisional and effects, which was not granted. (JT Exhs. 15, 20).
10 4. Closure Rationale and Circumstances
Segarra said that he closed MTS for the following reasons: the loss of major clients
(i.e., Sea Star21 and Mediterranean Shipping (R. Exhs 43–45)); concerns over client Trailer
Bridge’s bankruptcy filing (R. Exh. 42);22 and MTS’ poor performance. He added that he had
15 been evaluating MTS’ potential closure since 2011. (R. Exh. 53).
Caraballo explained that Intership was under great financial duress when MTS closed,
and sustained annual losses of almost $1 million.23 Between 2011 and 2012, Intership’s net
income decreased from $4,446,071 to $1,341,384.24 (R. Exh. 60). She related that she lobbied
20 Segarra to close MTS since 2010 because it was, “bleeding” Intership dry. (Tr. 1346). This
chart summarizes MTS’ net losses from 2008 through 2013:25
Year: 2008 2009 2010 2011 2012 2013
Net Loss: ($44,073) ($148,639) ($161,186) ($111,488) ($120,834) ($95,063)
(R. Exhs. 48, 50, 54; GC Exh. 55). She said that MTS only survived because of Intership’s
25 ongoing loans and that the Intership Board retained an auditor in 2011 to “study the tax aspects”
of MTS’ potential closure. (R. Exh. 52(b)). She stated that these factors prompted MTS’ closing
and that the Union was never a factor. She related that MTS’ assets were liquidated and its
property has since been leased to Sun Colors Digital Graphics, Inc. through 2018. (R. Exhs. 56–
58). She stated that, since MTS’ closure, Intership is no longer engaged in the repair of third
30 party chassis and containers for profit.
Although, as will be discussed in the analysis section, Segarra’s and Caraballo’s
testimony about MTS’ closure rationale was not credited, their testimonies regarding MTS’ and
Intership’s ongoing losses and poor fiscal performance were credited, and supported by
35 voluminous financial records and statements.
21 Segarra alleged that this loss resulted in a 33% decrease in Intership’s revenue.
22 Caraballo said that this filing stopped Intership from collecting over $700,000 owed by Trailer Bridge.
23 Intership lost $789,000 between September 2011 and September 2012. (R. Exh. 46).
24 Intership’s financial problems were captured in its consolidated financial statements for 2013 and 2014, which
reflected net losses of $1,463,740 and $1,087,910 respectively. (R. Exh 67). Caraballo noted that Intership
responded to this crisis by undergoing a drastic cost reduction program. See (R. Exh. 65).
25 MTS’ deficit, i.e., a running total of yearly losses, was $740,778 at the end of 2013. (GC Exh. 55).
JD−24−16
7
D. October 2012 to March 2013 – TTS Closure Threats and Shutdown
1. Closure Threats
5 a. General Counsel’s Position
Yamil Colon-Santiago (Colon), a TTS employee, related that, after MTS’ closure and
Union organizing drive, Davila called him and other workers to a meeting, and warned that MTS
closed because of the Union. (Tr. 392). He stated that Ruiz said that, if TTS also unionized, it
10 would close. (Tr. 394). He recalled that, in December 2012, Sosa and Lopez repeated these
closure threats. (Tr. 394). Edgar Alejandro-Diaz (Alejandro) testified that Lopez told him that
MTS closed because of the Union, and Lopez and Sosa both said that, if TTS unionized, it would
similarly close. John Rosa-Guadalupe (Rosa) provided a similar account. (Tr. 807–808).
15 Ryan, a TTS supervisor, related that he was told by Sosa and Davila that MTS closed
because it unionized. (Tr. 713–15). He said that, in March 2013, Davila told him that he should
tell employees that, if they also unionized, TTS would close and they would be fired. (Tr. 716).
He recalled Sosa threatening TTS’ closure, if employees unionized. (Tr. 717). Ryan related that
he was convinced that TTS would unionize, and recalled employees telling him that they were
20 talking to the Union about organizing. He said that he relayed these discussions to Sosa in
September, in order to offer him a chance to remedy employees’ concerns before they unionized.
b. Respondent’s Stance
25 Sosa denied knowing that TTS employees were considering unionizing. He and Lopez
each denied threatening job loss or plant closure.
c. Credibility Resolution
30 Given that Ryan, Rosa, Colon and Alejandro reported repeated threats, which Sosa and
Lopez each denied, and Ryan said that he told Sosa that TTS employees’ were organizing, which
also Sosa denied, a credibility determination must be made. For several reasons, I credit Ryan,
Rosa, Colon and Alejandro. First, their testimony was deeply consistent and their demeanors
were uniformly strong. Second, their testimony was supported by TTS’ and MTS’ actual
35 closures shortly, after the advancement of the alleged threats at issue. Finally, I found Sosa and
Davila to be less than credible witnesses, whose comments were deeply consistent with the slew
of unlawful threats and actions present herein.
2. Closure
40
On April 26, 2013, TTS closed and discharged its employees.26 Its facility stands vacant
and is being marketed by a realtor. Caraballo and Segarra explained that TTS closed for the
same reasons that befell MTS (i.e., Intership’s and TTS’ business problems and losses).27 Sosa
stated that Intership continuously loaned TTS monies to meet expenses. He said that he reported
26 The Union had not filed a petition seeking to represent TTS employees, when it closed.
27 (R. Exh. 26) (TTS’ total losses in 2012 were $891,685).
JD−24−16
29 He agreed, on cross examination, that there are dock areas, which are videotaped for security reasons. (Tr. 359).
8
on TTS’ exigent financial condition at Intership’s Executive Meeting on April 15, 2013 and
lobbied for its closure.28 (R. Exh. 65). He said that, shortly thereafter, Segarra closed TTS.
Although, as will be discussed in the analysis section, Segarra’s, Caraballo’s and Sosa’s
5 testimonies about TTS’ closure rationale were not credited, their testimonies regarding TTS’ and
Intership’s poor fiscal performance were credited, and corroborated by financial records.
E. July 17 to 21, 2014 Strike and Demonstration
10 On these dates, Intership and MTS employees picketed and held a short-term strike
outside of Intership. Picketing occurred around-the-clock and protested MTS’ closure. The
Puerto Rican Police Department continuously observed the strike. Although Respondent averred
that the picketers blocked Intership, the police never cited or stopped them. Region 24 never
issued a complaint against the Union, which alleged unlawful blockage.
15
Arturo Figueroa Rios (Figueroa), former Union attorney, testified that several supervisors
observed the picketing. He identified: Rodriguez; Nogueras; Jose Garcia-Ortiz (Garcia), VP–
Terminal Operations; Sosa; and Caraballo. He explained that management monitored the
picketing from their cars and the gate, and took photos and video footage with their mobile
20 phones. He stated that he asked management to stop intimidating the picketers, but, was ignored.
He recollected that, on one occasion, Rodriguez parked his car next to the picket line and took
pictures with his phone for an hour. He said that, when he asked him to stop, he replied that he
“had instructions to inform [on] who was there and that he would continue to follow … the[se]
instructions.”29 (Tr. 343). Miguel Ortiz-Rivera (Ortiz), an employee, corroborated that he heard
25 Figueroa tell Rodriguez not to take photos and Rodriguez reply that he was following orders.
(Tr. 379).
Garcia acknowledged taking photos and video to substantiate blockages. (R. Exh. 18).
He insisted that the picketers blocked the gate, but, said that the police did not agree. Sosa
30 testified that he was there on July 17 and 21 (see (R. Exh 39)); he denied monitoring employees
on July 17, but, recalled taking photos on July 21. See (R. Exh. 41). He stated that he took
pictures because an unnamed truck driver reported being followed by a car. Rodriguez conceded
that he videotaped the demonstration. He denied, however, stating that he was told by
management to record the picketers, and said that only took pictures to substantiate blockages.
35
F. July 21, 2014 – Rene Conception-Sanchez Incident
1. General Counsel’s Stance
40 Rene Concepcion-Sanchez (Concepcion), an employee, testified that, on July 21, while
talking to a trucker about the strike, Caraballo pushed him and ordered the driver to make his
delivery. He said that, during this dispute, Caraballo asked if he was the leader and when he did
not respond, Sosa grabbed him and ordered him to reply. He said that Caraballo threatened him
that Intership would close, if employees continued. (Tr. 441). Javier Martinez-Ortiz (Martinez)
28 Sosa said that TTS’ problems were exacerbated by the loss of several clients. See (R. Exhs. 36–37).
JD−24−16
at least 10 other witnesses, which is implausible.
9
corroborated his account.
2. Respondent’s Stance
5 Caraballo testified that, on July 21, she told the truck driver to enter the facility. She
contended that Concepcion hit her with his umbrella, while she spoke to the driver and pushed
her. She said that she alerted the police, who asked the parties to separate and warned the
picketers to not block the gate. Sosa recalled a truck driver seeking to enter with a delivery, and
recollected Concepcion, pressing against Caraballo and inserting himself in her discussion with
10 the driver. He denied grabbing Conception, or witnessing any threats.
3. Credibility Resolution
Given that Concepcion said that Caraballo pushed and threatened him and that Sosa
15 grabbed him, a credibility resolution is needed. Concepcion is credited over Sosa and Caraballo.
First, his willingness to testify against high-level superiors without an obvious financial stake
enhances his credibility. Second, he had a credible demeanor; he was open and consistent. His
testimony was corroborated by Martinez, who was equally credible. Third, if Concepcion had
actually struck Caraballo with his umbrella as she related, he would surely have received
20 discipline. The absence of such discipline, consequently, undercuts her credibility. Finally,
Caraballo and Sosa seemed more committed to supporting Intership’s position than offering
candid testimony.30
G. July 2014 – Caraballo and Segarra Comments
25
Rivera testified that, after employees returned from the strike, Caraballo said that, if
employees continued, “we would be destroying the company and left without a job.” (Tr. 499).
Rafael Hernandez-Alicea (Hernandez) testified that Segarra told him that, if the Union
continued, Intership could close. (Tr. 547). He added that Caraballo noted that she did not see
30 him at the strike and told him to “wait until the company closes.” (Tr. 549–50). Segarra and
Caraballo denied such commentary, which triggers another credibility analysis favoring Rivera
and Hernandez, who were consistent witnesses, with strong demeanors. Moreover, the threats at
issue are so deeply consistent with the myriad of other unlawful statements and actions present
herein that Caraballo’s and Segarra’s denials have been rendered practically worthless.
35
H. Unilateral Change Allegations
1. Vacation Pay Procedure
40 Concepcion, an employee since 1987, said that Intership had a consistent practice of
distributing vacation checks at the terminal on the Friday before a vacation. He related that, after
the July 2014 strike, he was required to pick up his vacation check at the main office, which
required a 30-minute drive. Jose Rivera-Sanchez (Rivera) corroborated this account. Mercado
testified that Intership did not bargain over this change, or notify the Union before
30 Regarding Sosa, if he were fully credited on every contested point, such a finding would mean crediting him over
JD−24−16
33 On these dates, he worked 6, 7 and 4 hours, and averred that he should have been paid for 8 hours each day.
10
implementation. Caraballo conceded making the change and cited confidentiality issues.
2. Maintenance Workers’ Hours
5 a. General Counsel’s Position
Rivera testified that maintenance employees in the Intership unit previously worked at
least 40 hours per week. He said that, after the July 2014 strike, their work schedules were
reduced to 24 hours per week. He related that he did not return to his normal schedule until
10 November 2014. Juan Delgado related that he consistently worked 40 hours before being cut to
32 hours per week in July 2014. Ramon Duran-Colado (Duran) provided similar testimony.
Mercado testified that Intership never notified him or bargained over this issue.
b. Respondent Stance
15
Gerardo Rosa-Garay (Rosa), Intership’s Maintenance Manager, and Garcia testified that
unit maintenance employees periodically worked 40 hours per week, subject to the availability of
sufficient work. They disputed whether they always worked 40 hours per week, and said that
they generally worked “as needed.” They stated that a standing seniority list governs who is
20 scheduled to work (R. Exhs. 12-13), and insisted that maintenance workers are not guaranteed a
full-time workweek.31 They conceded that the 2 most senior mechanics mostly work 40 hours
per week, while their less senior counterparts work fewer hours.
c. Credibility Resolution
25
This credibility resolution favors Rosa and Garcia. First, Rivera, Delgado and Duran
offered generalized and conclusory testimony about their workweek, whereas Rosa and Garcia
provided persuasive and detailed accounts. Second, it is noteworthy that Counsel for the General
Counsel failed to buttress this allegation with sufficient work schedules and pay records, which
30 would have established a consistent and long-term scheduling practice in the maintenance
department.32 This conspicuous evidentiary lapse solidly resolves this credibility dispute in
favor of the Respondent. Finally, absent such records, it is plausible that maintenance employees
were assigned “as needed,” in accordance with seniority.
35 3. 8-Hour Auto Checker Guarantee
a. General Counsel’s Stance
Checkers inspect, receive, dispatch and load cargo. Rafael Hernandez-Alicea
40 (Hernandez), a checker, testified that he performed automobile checker work three times in May
2014, and was only paid for actual hours worked. He explained that he did not receive the
guaranteed 8 hours of pay for such work, which was previously paid.33 Jose Colon-Rodriguez
(Colon), a checker, testified that he was uniformly paid the 8-hour guarantee, irrespective of
31 Mercado agreed, on cross, that there are some unit employees, who do not work 40 hours per week. (Tr. 1053).
32 Such evidence, which should have been readily obtainable, would have persuasively demonstrated this point.
JD−24−16
35 As an example, Garcia said that he would appoint a checker, when freight had 2 makes of cars mixed together.
11
where he worked until December 2014, when Intership ended this practice. Mercado testified
that Intership never notified him about this change or bargained over it.
b. Intership’s Response
5
Garcia stated that checkers at the main gate, which he referred to as “under the canopy,”
received an 8-hour guarantee, even if they worked less than 8 hours. He related that checkers in
the terminal, which he referred to as “in the yard,” were only paid for actual hours worked. He
explained that checkers only received an 8-hour guarantee under these circumstances:
10
When the checkers are assigned to dispatch autos are … assigned to our clients’
gates, being Sea Star Lines or Trailer Bridge, ... they are guaranteed 8 hours....
(Tr. 936). Garcia added that “in the yard” checkers only receive a 4-hour guarantee and,
15 thereafter, are paid for actual hours worked. He said that checkers also receive a 4-hour
guarantee, when working on vessels. He explained that GC Exhs. 32–33 demonstrate that
Intership did not pay the 8-hour guarantee between September 2014 and March 2015.34
c. Credibility Resolution
20
This factual dispute has been resolved in favor of Respondent. First, the dearth of pay
records demonstrating a consistent practice weighs in its favor. Second, Garcia’s detailed
testimony was persuasive, his account was plausible, and his demeanor was superior.
25 4. Auto Checker Designation
The evidence presented by the General Counsel on this matter was, at best, meager.
Mercado testified that Intership had a designated auto checker, until it ceased this practice in
January 2015, without notice or bargaining. Garcia explained that Intership would inconsistently
30 appoint a designated auto checker, on the basis of client needs.35 For many of the reasons
previously cited, Respondent wins this credibility dispute. As stated, Garcia was very credible.
Additionally, the conspicuous lack of business records demonstrating the existence of a
consistent practice on this issue deeply undercuts Mercado’s generalized testimony.
35 I. Suspension – Efrain Gonzalez Andino
On July 9, 2014, Efrain Gonzalez-Andino (Gonzalez) received this memo:
[O]n May 30 ... you failed to follow a posted ... guideline ... [and] used profanity
40 towards a Manager of ... Trailer Bridge....
On countless occasions, we have notified you ... that all union personnel only
receives instruction from … Intership; and … if any … claim emerges ... [it has]
34 Although the GC offered an exhibit showing that a checker received 8 hours of pay for less than 8 hours of work,
when not at the main gate, Garcia claimed that this was an isolated error.
JD−24−16
12
to be addressed directly to Intership management…. [Y]ou blatantly violated
these ... guidelines and ... used profanity towards a [client’s] manager....
[W]e have decided that [a] ... June 2, 3rd and 4th [suspension is warranted] ….
5
(GC Exh. 30).
Gonzalez recalled that, on May 30, he observed Trailer Bridge supervisor Ronald Ortega
performing Intership unit work. He said that, in his role as a shop steward, he inquired. He
10 recollected Ortega first ignoring him and then responding with profanity, which prompted him to
reply in kind. He added that Ortega then told him that the Union had consented to this work
arrangement, which the Union later acknowledged. He contended that, although he does not
generally interact with customers, he was allowed to do so as a shop steward.
15 Garcia stated that employees are prohibited from speaking to clients, in order to avoid
disputes like the one at issue herein.36 He related that there are no exceptions and employees can
always phone him, whenever an issue arises. He said that he received 2 complaints from Trailer
Bridge regarding Gonzalez’ undisputed actions. (GC Exh. 47; R Exh. 11). He agreed that
Gonzalez was not the instigator, and denied that his steward status factored into his discipline.
20
III. Analysis
A. Single Employer Status37
25 Intership, MTS and TTS are a single employer. The Board has held that:
In determining whether … nominally separate employing entities constitute a
single employer, ... four factors [are relevant]: (1) common ownership, (2)
common management, (3) interrelation of operations, and (4) common control of
30 labor relations. No single factor is controlling, and not all need be present.
Rather, single-employer status ultimately depends on all the circumstances. It is
characterized by the absence of an arm's-length relationship. . . .
Cimato Bros., Inc., 352 NLRB 797, 798 (2008). Centralized control of labor relations is the
35 primary factor in this analysis. Geo. V. Hamilton, Inc., 289 NLRB 1335, 1337 (1988).
“[C]ommon ownership, while significant, is not determinative in the absence of centralized
control over labor relations.” Mercy Hospital, 336 NLRB 1282, 1284 (2001).
1. Common Ownership and Management
40
These factors favor single employer status. MTS and TTS were owned by Intership.
Segarra, Intership’s president, presided over MTS and TTS. Intership held Board meetings,
where MTS and TTS reported on their status and decisions regarding their closings were made.
All entities have common managers (e.g., VP, Sec., Treasurer, CFO, COO and Controller).
45
36 See also (GC Exh. 51) (citing undisputed workplace rule regarding customer interactions).
37 This allegation is pled in par. 5 of the first complaint.
JD−24−16
13
2. Interrelationship of Operations
This factor favors single employer status. Before its closure, MTS serviced Intership, its
5 main customer. MTS’ Ruiz transferred to Intership, after MTS closed. Before its closure, TTS
serviced Intership, its main customer.38 TTS’ Sosa transferred to Intership, after TTS closed.
Intership financed MTS and TTS.39 MTS purchased inventory for TTS. TTS’ purchase orders
bore an MTS logo. TTS’ machinery and employee uniforms had MTS logos.
10 3. Central Control of Labor Relations
This factor supports single employer status. MTS lacked an HR department and
delegated this duty to Intership. When MTS hired a worker, the employee and Intership’s
Figueroa would sign the contract. Ruiz was assigned to work at MTS, and later promoted by,
15 paid by, and supervised by Intership.40 Concerning TTS, there is mixed evidence of centralized
control, which tips in favor of labor relations control. On the negative front, TTS’ Sosa
independently: made many operational decisions; determined benefits and assignments; assisted
discharge decisions; set many workplace policies; and handled unemployment insurance. TTS
had its own Employee Manual. On the positive side, however, Intership: prepared TTS’ payroll;
20 appointed TTS’ Sosa, supervised him and paid him; appointed TTS’ Lopez and paid him; and
hired TTS’ Ryan and supplied his business cards. Also, in spite of Sosa’s contrary testimony on
independence, several emails demonstrate that Intership still assisted with evaluations,
terminations and other personnel matters. This evidence suggests that Intership centrally
controlled the most significant labor relations matters (e.g., hiring and control of upper
25 management and other key human resources functions) and relegated some lesser duties to TTS.
In sum, this labor relations factor tips in favor of single employer status, given that there is
virtually uncontradicted evidence of central control at MTS, and evidence of central control over
the most important labor relations matters at TTS.
30 4. Conclusion
Respondent is a single employer; all factors were satisfied. In sum, there is a clear lack
of an arm’s length relationship between Internship and its subsidiaries.
35 B. Section 8(a)(1) Allegations
1. Interrogations41
Respondent unlawfully interrogated its workers. Ruiz asked: Nater if he had spoken to
40 the Union; Escotto whether he had heard any Union rumors and would identify their supporters;
and Velasquez who supported the Union. Caraballo asked Hernandez why he was not at the
38 Ryan credibly described 99% of TTS’ workload as involving repairs for Intership.
39 Intership’s Quinones signed checks, while Intership’s Caraballo and Vasquez signed checks for TTS.
40 Ruiz considered himself an Intership employee, while at MTS.
41 These allegations are listed under pars. 11 and 16 of the complaint in Cases 24-CA-091723 and 24-CA-104185
(the first complaint), and pars. 8 and 10 of the second complaint.
JD−24−16
14
strike.
In Westwood Healthcare Center, 330 NLRB 935 (2000), the Board held that the
5 following factors determine whether an interrogation is unlawful:
(1) The background, i.e. is there a history of … hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be
seeking information on which to base taking action against individual
employees?
10 (3) The identity of the questioner, i.e. how high was he in the … hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to
the boss’s office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.
15 Id. at 939. In applying these factors, however, the Board concluded that:
In the final analysis, our task is to determine whether under all the circumstances
the questioning at issue would reasonably tend to coerce the employee at whom it
is directed so that he or she would feel restrained from exercising rights protected
20 by Section 7 of the Act.
Id. at 940.
25 Ruiz’s and Caraballo’s queries were unlawful. First, as will be discussed, there is
extensive evidence of Union animus, threats and hostility, and many of Ruiz’s interrogations
were accompanied by threats and unlawful comments. Second, Ruiz’s queries were designed to
ferret out the identity of the Union’s supporters and communicated a threat of retaliation. Third,
Ruiz and Caraballo are high-level managers. Finally, the queries at issue mostly occurred under
30 intimidating conditions, i.e., one-on-one interactions.
2. Discharge, Job Loss and Plant Closure Threats42
Respondent, by Ruiz, Davila, Lopez, Sosa, Caraballo and Segarra, repeatedly threatened
35 employees in violation of the Act, as summarized below:
Date Speaker(s) Recipient(s) Site Summary
Sep.
2012
Ruiz Nater,
Escotto,
Velasquez,
Alvarado,
Allende,
Marrero,
Alfredo and
Garcia
MTS  “[I]f the Union … came into MTS, … [it] would
close.” (Tr. 206).
ï‚· If the Union won, MTS would close. (Tr. 229).
ï‚· If Ruiz learned who signed Union cards, he would
suspend them. (Tr. 241).
Nov.
2012
Davila Colon and
Ryan
TTS  MTS closed because, “the employees became part of a
union and that was not good for the company’s
interests.” (Tr. 392).
42 These allegations are pled in first complaint pars. 11–12 and 16 and second complaint pars. 7–8 and 10.
JD−24−16
44 These allegations are pled in pars. 11 and 16 of the first complaint.
15
 “[I]f the [TTS] employees unionize[d], … what
happened to MTS, the same thing [would happen] to
them, they would be fired ….” (Tr. 716).
Nov.
2012 to
Feb.
2013
Lopez and
Sosa
Colon,
Alejandro
and Rosa
TTS  “[I]f the “Union … [came] to TTS, … [it] would
close.” (Tr. 394).
ï‚· MTS closed because of the Union.
ï‚· If TTS unionized, it would close.
 MTS closed because the Union “got in.” (Tr. 807).
ï‚· If TTS unionized, it would also close. (Tr. 808).
ï‚· Employees would be out of a job, if they unionized.
Jul. 21,
2014
Caraballo Rivera,
Concepcion
and
Hernandez
Inter. ï‚· If employees continued their Union activities and
protests, “[they] would be destroying the company
and left without a job.” (Tr. 499).
ï‚· All of the MTS employees were fired and that
Intership’s employees would be next, if they
continued to talk to the Union. (Tr. 441).
 If the Union continued to strike, “just wait until the
company closes down ….” (Tr. 549-550).
Jul. 24,
2014
Segarra Hernandez Inter.  If the Union continued …, Intership may close. (Tr.
547).
An employer violates Section 8(a)(1), when it engages in conduct that might reasonably
tend to interfere with employees’ Section 7 rights. American Freightways Co., 124 NLRB 146
(1959). In evaluating such statements, the Board, “does not consider subjective reactions, but
5 rather whether, under all the circumstances, a respondent’s remarks reasonably tended to
restrain, coerce, or interfere with employees’ rights guaranteed under the Act.” Sage Dining
Service, 312 NLRB 845, 846 (1993).
Respondent’s repeated threats violated the Act; such threats were continuous, clear and
10 coercive. See, e.g., Publix Super Markets, Inc., 347 NLRB 1434, 1435 (2006) (supervisor
unlawfully threatened discipline or discharge for concerted activity); Braswell Motor Freight
Lines, 156 NLRB 671, 674–675 (1966); Federated Logistics & Operations., 340 NLRB 255, 256
(2003) (unsubstantiated predictions of plant closure resulting from union victory are unlawful;43
Mid-South Drywall Co., 339 NLRB 480 (2003).
15
3. Soliciting Antiunion Votes44
In September 2012, Respondent, via Ruiz, unlawfully solicited employees to vote against
unionization. “[W]here an employer solicits employees to campaign against union
20 representation . . . such solicitation violates Section 8(a)(1) without reference to whether the
solicited employee's union sentiments are known. . . .” Allegheny Ludlum, Inc., 333 NLRB 734,
741 ( 2001), enfd. Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167 (2002). Ruiz unlawfully
solicited Nater to vote against the Union, and told him to tell others to “side with the Company.”
25
43 While a plant closure prediction can be lawful, if the employer shows that it is the probable consequence of
unionizing for reasons beyond its control, no showing was made. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
JD−24−16
47 These allegations are pled in pars. 7 and 10 of the second complaint.
16
4. Impression of Surveillance45
In September 2012, Ruiz created an unlawful impression of surveillance. At that time, he
told Nater that MTS would learn who signed authorization cards on behalf of the Union.
5 See, e.g., Stevens Creek Chrysler, 353 NLRB 1294, 1295–1296 (2009).
5. Surveillance46
Sosa, Rodriguez, Caraballo and Noguera engaged in surveillance, when they recorded,
10 photographed and otherwise monitored the July 2014 strike. An employer unlawfully “surveils
employees engaged in Section 7 activity by observing them in a way that is ‘out of the ordinary’
and thereby coercive.” Aladdin Gaming LLC, 345 NLRB 585, 586 (2005). The Board
considers, “duration of the observation, ... distance from ... employees while observing them, and
whether the employer engaged in other coercive behavior during its observation.” Id.
15
Several factors support a surveillance finding. The management observers at issue (i.e.,
Rodriguez, Nogueras, Garcia, Sosa and Caraballo) were high-level officials, whom it was “out of
the ordinary” to see at the plant gate. Their observation also occurred from a close vantage point
over a 4-day period. Their viewing was accompanied by other coercive behavior, including:
20 Rodriguez stating that he “had instructions to inform [on] who was there” (tr. 343); Sosa and
Caraballo grabbing and pushing a picketer; and Caraballo stating that employees would be fired,
if they persisted (tr. 441). Lastly, such monitoring was unnecessary, given that the
demonstration was peaceful, and supervised by the police. These actions, were, thus, unlawful.
25 6. Acts of Violence47
Respondent violated the Act, when Sosa and Caraballo grabbed and pushed Concepcion
on July 21, 2014, while he was informing a trucker about the labor dispute. It is unlawful for an
employer to assault or physically abuse employees because of their protected activities. Studio
30 S.J.T. Limited, 277 NLRB 1189, 1194 (1985); Federated Stores, 241 NLRB 240, 252 (1979).
Caraballo’s and Sosa’s actions were solely aimed to thwart Concepcion’s lawful discourse about
the labor dispute, and were, accordingly, unlawful.
C. Section 8(a)(5) Allegations
35
1. Unilateral Changes
a. Legal Precedent
40 An employer must bargain in good faith with the collective-bargaining representative of
unit employees regarding wages, hours and other terms and conditions of employment. NLRB v.
Borg-Warner Corp., 356 U.S. 342, 349 (1958). An employer, thus, violates the Act, when it
makes material unilateral changes in mandatory bargaining topics. NLRB v. Katz, 369 U.S. 736
45 These allegations are pled in pars. 11 and 16 of the first complaint.
46 These allegations are pled in pars. 6 and 10 of the second complaint.
JD−24−16
51 These allegations are pled in pars. 13, 15 and 18 of the first complaint.
17
(1962). In order to trigger a bargaining obligation, however, a unilateral change must be
material, substantial and significant. Crittenton Hospital, 342 NLRB 686 (2004). The General
Counsel can establish a prima facie unilateral change violation, if it shows that an employer
unilaterally made a material and substantial change in a term of employment without negotiating.
5 The burden then shifts to the employer show that the change was permissible (e.g., consistent
with established past practice). Fresno Bee, 339 NLRB 1214 (2003).
b. Vacation Procedure48
10 Intership violated the Act, when it unilaterally changed the vacation procedure. The
Board has held that vacation scheduling and related procedures are mandatory bargaining
subjects, and unilaterally imposed changes in this arena are unlawful. United Cerebral Palsy of
New York City, 347 NLRB 603, 606–607 (2006). In July 2014, Intership ceased distributing
vacation checks at the plant on the Friday before a vacation, and instituted a new system, where
15 employees had to retrieve vacation checks at the main office. This material and significant
change was unlawfully implemented, without bargaining or notice.
c. Maintenance Assignments49
20 The General Counsel failed to show that Intership unilaterally changed its maintenance
assignments in a material or substantial way. Unit maintenance employees never consistently
worked 40 hours per week, and were, instead, assigned “as needed.” The General Counsel solely
offered generalized and conclusory evidence on this point, and failed to produce sufficient work
and pay records, which would have adduced a consistent practice.
25
d. Auto Checkers50
The General Counsel failed to show that Intership unilaterally modified its auto checker
procedures. The General Counsel offered a dearth of records on this matter, and Garcia’s
30 testimony that auto checker procedures remained unchanged was, as discussed, credited.
2. Closure of MTS, and Associated Discharge of the Unit51
MTS’ closing was a mandatory subject of bargaining under Dubuque Packing Co., 303
35 NLRB 386, 391 (1991), enfd. in rel. part1 F.3d 24, 31–33, (D.C. Cir. 1993), pet. for cert,
dismissed 146 LRRM 2896 (1994). Intership, therefore, violated Section 8(a)(5) by unilaterally
closing MTS, without offering the Union a chance to bargain over this matter.
a. Legal Precedent
40
In Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964), the Supreme Court found
that an employer’s subcontracting of maintenance work, which merely replaced existing
48 This allegation is pled in pars. 9 and 12 of the second complaint.
49 This allegation is pled in pars. 9 and 12 of the second complaint.
50 This allegation is pled in pars. 9 and 12 of the second complaint.
JD−24−16
18
employees with those of an independent contractor performing the same work under similar
conditions of employment was a mandatory subject of bargaining. The Supreme Court held that,
since the subcontracting was unaccompanied by a capital investment or alteration in the entity’s
basic operation, requiring bargaining over such a decision “would not significantly abridge the
5 company’s freedom to manage the business.” Id. at 213. Moreover, since the subcontract turned
on labor costs, it was “peculiarly suitable for … collective-bargaining.” Id. at 214.
In First National Maintenance, 452 U.S. 666 (1981), however, the Supreme Court held
that an employer’s decision to close down part of its business was not a mandatory bargaining
10 topic because that type of decision was “akin to the decision whether to be in business at all.” Id.
at 686. Accordingly, the “harm likely to be done to an employer’s need to operate freely in
deciding whether to shut down part of its business purely for economic reasons outweighs the
incremental benefit that might be gained through the union’s participation in making the decision
...” Id. The court left Fibreboard intact and stated that each case involving economic decisions
15 that impact employees, “such as plant relocations, sales, other kinds of subcontracting,
automation, etc.” must be considered on its specific facts to assess whether “the benefit for …
collective bargaining ... outweighs the burden placed on the … business.” Id. at 679, 686, fn. 22.
In Dubuque Packing Co., 303 NLRB 386, 391 (1991), enfd. in rel. part 1 F.3d 24, 31–33
20 (D.C. Cir. 1993), pet. for cert, dismissed 146 LRRM 2896 (1994), the Board announced the test
for determining whether a work relocation decision is a mandatory bargaining topic. The Board
held that the General Counsel has the initial burden of showing that the decision was
“unaccompanied by a basic change in the nature of the employer’s operation.” The employer
then has the burden of rebutting the General Counsel’s prima facie case or proving certain
25 affirmative defenses. 303 NLRB at 391. Where the Board concludes that the employer’s
decision concerned the “scope and direction of the enterprise,” there will be no duty to bargain
over the decision. Noblit Bros., Inc., 305 NLRB 329, 330 (1992); Holly Farms Corp., 311
NLRB 273, 277–78 (1993). The Employer may also avoid bargaining if it can show that (1)
labor costs were not a factor or (2) even if labor costs were a factor, the union, could not have
30 offered sufficient labor cost concessions to alter its work relocation decision. Dubuque, 303
NLRB at 391. Although Dubuque specifically concerned work relocation decisions, its
principles are applicable to all “Category III” decisions, i.e., decisions that have a direct impact
on employment, but, have as their focus the economic profitability of the employing enterprise,52
which fall within the spectrum between Fibreboard and First National Maintenance.53
35
b. Intership’s Decision to Close MTS Should be Viewed Under Dubuque
As a threshold matter, Intership’s decision to close MTS was not a First National
Maintenance decision. MTS was not a separate and distinct entity (i.e., it was just a cog within
40 Respondent’s single employer enterprise). Moreover, MTS’ main role was to support Intership’s
stevedoring business by servicing its chassis. Intership’s primary business, stevedoring, was
effectively unchanged by the subcontract. The elimination of MTS’ supporting function
52 First National Maintenance, supra, 452 U.S. at 677.
53 Westinghouse, 313 NLRB 452 (1993), enfd.46 F.3d 1126 (4th Cir. 1995) (Dubuque applicable to Category III
decisions that are not Fibreboard subcontracting).
JD−24−16
19
precludes First National Maintenance treatment, inasmuch as it is not the kind of “partial
closing,” or going out of part of a business, at stake in First National Maintenance. Or put
another way, Intership never stopped stevedoring, or performing chassis upkeep; the main thing
that the subcontract achieved was that it redistributed Intership’s chassis upkeep function from
5 MTS to another entity (i.e., Frank’s Chassis).
MTS’ cessation was, however, also not a clear case of Fibreboard subcontracting.
Fibreboard subcontracting requires, inter alia, replacing existing employees with a contractors’
workers performing the same work under similar employment conditions, without a capital
10 investment or alteration in the employer’s basic operation. Thus, although some portions of
Intership’s subcontract support Fibreboard handling because it replaced MTS’ workers with
Frank’s Chassis’ workers, who performed the same type of mechanical work on the same chassis
under presumably similar employment conditions, other factors preclude Fibreboard handling.
These non-Fibreboard factors, which elevate the MTS subcontract to a Dubuque issue, are as
15 follows: (1) Intership did not just solely change the identity of the workers repairing chassis, it
also disassembled MTS’ chassis operation, dumped equipment and machinery, and leased away
the building (i.e., this represented a liquidation of several assets that was not present in
Fibreboard); (2) although Intership continued to perform its main stevedoring function, MTS’
closure still represented the end of its minor business venture into repairing chassis for outside
20 clients (i.e., this cessation of a business venture was also not present in Fibreboard); and (3)
Intership’s decision to close MTS was, in part, driven by economic profitability, given that MTS
was deeply unprofitable and could not continue without Intership’s fiscal aid. Although
Dubuque specifically concerned work relocation decisions, its principles are still applicable to a
“Category III” decision of this nature, which was a decision that had a direct impact on MTS’
25 workers, but, also focused upon economic profitability. Westinghouse, supra.
c. Dubuque Prima Facie Case
The General Counsel made a prima facie Dubuque showing. The MTS subcontract did
30 not significantly change scope and direction of Intership’s business, inasmuch as it uniformly
remained a stevedoring company. Intership continued to service constant clients, market the
same stevedoring services and compete in identical markets. Such a decision, thus, remained a
mandatory bargaining subject. See, e.g., Bob’s Big Boy Restaurants, 264 NLRB 1369 (1982)
(Board held that, where shrimp processing operation was discontinued, processing equipment
35 was sold, and another company was retained to provide processed shrimp to its restaurants, the
subcontract was a mandatory bargaining subject because the employer had not changed the
nature and direction of its business, and remained in its core business of providing foods,
including processed, shrimp, to its restaurants); Michigan Ladder, 286 NLRB 21 (1987) (Board
held that, where the employer stopped manufacturing ping pong tables and ladder parts, and
40 contracted with a subcontractor to manufacture those items on its behalf, its subcontract
remained a mandatory subject of bargaining); It is noteworthy that, although the MTS
subcontract involved substantial capital transactions (i.e., the leasing of the MTS facility,
disassembly and sale of MTS’ equipment, and cessation of performing chassis servicing for
outside clients), these substantial capital transactions make this a case appropriately analyzed
45 under Dubuque, rather than Fibreboard, but does not, independent of other rationales, require a
finding that Intership changed the nature or direction of its business. See Pertec Computer, 284
JD−24−16
20
NLRB 810 (1987), enfd. 926 F.2d 181 (2d Cir. 1991) (employer closed a facility that
manufactured typewriter ribbons and cartridges, relocated some of the work, and subcontracted
the rest to a Mexican manufacturer; that was not a fundamental change in the nature of the
business because the employer did not change the products, manufacturing process, or
5 technology of production, but merely was having essentially the same work done by other
employees in other locations); Summit Tooling Co., 195 NLRB 479 (1972), enfd.474 F.2d 1352
(7th Cir. 1973) (where the employer stopped manufacturing and selling tools and became
exclusively a tool design company, it completely closed a severable aspect of its business, which
is not present herein).
10 d. Dubuque Affirmative Defenses
Intership failed to establish any Dubuque affirmative defenses. It solely contended that
MTS’ closure flowed from ongoing losses, but, wholly failed meet its evidentiary burden of
showing that labor costs were not a factor in its decision54 or that, even if such costs were a
15 factor, the Union, could not have offered sufficient concessions to alter its decision.55
e. Conclusion
In sum, Intership’s decision to close MTS must be analyzed under Dubuque. The MTS
20 subcontract was unaccompanied by a basic change in the nature of Intership’s operation,
inasmuch as it steadfastly remained a stevedoring business and only subcontracted out a
supporting role, i.e. its chassis repair needs. This was, therefore, not a change in the “scope and
direction of the enterprise,” which obviated bargaining. It also failed to establish any Dubuque
affirmative defenses. Thus, bargaining between the parties regarding MTS’ closure should have
25 commenced and, “once bargaining to impasse [had] occurred, [if at all] the futility of continuing
[would have been] clear [and resolved].” Pertec Computer, supra, 284 NLRB at 810–11, n. 3.
Intership’s failure to take this legitimate course violated the Act.
D. Section 8(a)(3) Allegations
30
1. Gonzalez’s Suspension56
Intership lawfully suspended Gonzalez. It demonstrated that it would have suspended
him, even in the absence of his protected activity.
35
a. Legal Precedent
The framework for analyzing whether discriminatory actions violate Section 8(a)(3) is
provided under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
40 denied 455 U.S. 989 (1982), which requires the General Counsel to show, by a preponderance of
54 Intership did not show that MTS’ losses flowed from non-labor costs (e.g., old equipment, production
inefficiencies or outdated technology), which seems intuitively unlikely, given that MTS was a simple paint and
repair shop, whose viability did not seem to hinge upon the presence of cutting-edge equipment and technology).
55 This issue was wholly ignored, inasmuch as Intership never made even a preliminary showing regarding how
much money, if any, was saved by subcontracting out its chassis repair operation to Frank’s Chassis.
56 These allegations are pled in pars. 5 and 6 of the third complaint.
JD−24−16
21
the evidence, that the worker’s protected conduct was a motivating factor in the adverse action.
This initial burden is satisfied by showing protected activity, employer knowledge and animus.
If the General Counsel meets this initial burden, the burden shifts to the employer to prove that it
would have taken the same adverse action, absent the protected activity. Mesker Door, 357
5 NLRB 591–92 (2011). The employer cannot meet its burden, however, merely by showing that
it had a legitimate reason for its action; rather, it must demonstrate that it would have taken the
same action, absent the protected conduct. Bruce Packing Co., 357 NLRB 1084, 1086, 1087
(2011). If the employer's proffered reasons are pretextual (i.e., either false or not actually relied
on), the employer fails to show that it would have taken the same action for those reasons
10 regardless of the protected conduct. Metropolitan Transportation Services, 351 NLRB 657, 659
(2007). On the other hand, further analysis is required if the defense is one of “dual motivation,”
that is, the employer defends that, even if an invalid reason might have played some part in its
motivation, it would have still taken the same action for permissible reasons. Palace Sports &
Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
15
b. Prima Facie Case
The General Counsel made a prima facie showing that Gonzalez’ protected activity was a
motivating factor. He was a shop steward and Intership knew of his status. There is abundant
20 evidence of Union animus in the form of threats, interrogations, surveillance and other actions.
c. Affirmative Defense
In spite of a strong showing of animus, Respondent persuasively adduced that it would
25 have suspended Gonzalez, even absent his protected activity. First, he breached a well-
publicized rule prohibiting client interactions.57 Second, he magnified his violation by using
profanity against a customer. Third, Intership did not instigate the investigation; it was initiated
by its client, who harbored no obvious Union animus. Fourth, Union President Mercado
acknowledged the validity of the rule and did not challenge its disciplinary reach. (GC Exh. 51).
30 Finally, Garcia’s disciplinary rationale was credited and afforded great weight. I find, as a result,
that, irrespective of the obvious Union animus present herein, the suspension did not flow from
such animus, was reasonable in magnitude, served legitimate business interests, and would have
occurred absent his shop steward status.
35 2. MTS Subcontract58
The MTS subcontract violated Section 8(a)(3). Intership failed to show that it would
have subcontracted out MTS’ work, in the absence of employees’ Union activities.
40 a. Legal Precedent
Counsel for the General Counsel contends that the discriminatory subcontract should be
analyzed under Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263 (1965). This
contention is invalid; the subcontract should be properly viewed under Wright Line.
57 The General Counsel failed to show that this rule was disparately enforced.
58 These allegations are pled in pars. 13 and 17 of the first complaint.
JD−24−16
22
i. Applicability of Darlington
In Darlington, an 8(a)(1), (3) and (5) case, the Supreme Court held that an employer may
5 lawfully close its entire business for any reason; lawful or unlawful. The Supreme Court stated
in footnote 5 that “no argument is made that Section 8(a)(5) requires an employer to bargain
concerning a purely business decision to terminate his enterprise.” 380 U.S. at 267 n. 5. The
Supreme Court further held that an employer may lawfully close part of its business, even if the
closing is motivated by union animus, unless it is also “motivated by a purpose to chill unionism
10 in any of the remaining plants of the single employer and if the employer may reasonably have
foreseen that such closing would likely have that effect.” Darlington, 380 U.S. at 275. After the
Supreme Court remand to the Board, the Board found a chilling effect sufficient to support an
8(a)(3) violation. The Fourth Circuit then enforced the Board’s initial finding that the
employer’s refusal to bargain with the union after the closing violated Section 8(a)(5), relying on
15 the 8(a)(3) violation. See Darlington, 165 NLRB 1074 (1967), enfd. 397 F.2d 760, 774 (4th Cir.
1968), cert. denied 393 U.S. 1023.
The Darlington line of cases holds that if an employer partially closes its operation with a
motivation to affect union activities at its remaining plants, it violates Section 8(a)(3). Purolator
20 Armored, Inc., 268 NLRB 1268 (1984). Furthermore, an employer in such a case also violates
Section 8(a)(5) in the likely event that the employer also fails to notify, and bargain with, the
employees’ bargaining representative. Parma Industries, 292 NLRB 90 (1988). The Board has
dismissed an 8(a)(5) allegation over the closing of an entire business, where the Darlington
precedent ruled out an accompanying 8(a)(3) violation. Milo Express, Inc., 212 NLRB 313, 314
25 (1974). Thus, in 8(a)(3) cases, Darlington is applied in 8(a)(5) partial closing cases, where there
is no other basis upon which to argue that a bargaining obligation exists. To hold otherwise
would contradict and undermine the Darlington principle that an employer has a right to get out
of one part of its business, even if it does so because of union animus, so long as it does not
attempt to gain “unfair advantage” over union supporters at its other operations. First National
30 Maintenance, supra, 452 U.S. at 682. As the Court observed in First National Maintenance,
Section 8(a)(3) represents the Union’s “direct protection against a partial closing decision”
motivated by union animus. Accord: D & S Leasing, 299 NLRB 658 (1990) (cancellation of
subcontract violates Sec. 8(a)(3) and (5) because of union animus); Parma Industries, 292 NLRB
90 (Sec. 8(a)(3) and (5) partial closing); Mashkin Freight Lines, Inc., 272 NLRB 427 (1984)
35 (Sec. 8(a)(3) and (5) closing and relocation of operations). Section 8(a)(5), independent of
Section 8(a)(3), does not provide protection, direct or indirect, to a union to insist upon
bargaining over an employer’s decision to partially close its business.
The instant dispute, thus, should not be considered under the business closure principles
40 set forth in Darlington because Intership had a bargaining obligation for the MTS subcontract
under Dubuque. See, e.g., Lear Siegler, Inc., 295 NLRB 857, 860 (1989) (Darlington not
applicable where employer did not cease operations, but rather transferred some work to another
location and subcontracted the remaining work; Darlington explicitly distinguished
discriminatory relocation and subcontracting from partial closings). The bargaining obligation at
45 issue herein, therefore, renders the MTS subcontract into a non-Darlington matter.
JD−24−16
23
ii. Applicability of Wright Line
Although Darlington may be inapplicable, the Board may still analyze allegedly
discriminatory subcontracts and work transfers analogous to the MTS subcontract under the
5 parameters set forth in Wright Line. See, e.g., Plaza Properties of Michigan, Inc., 340 NLRB
983, 987 (2003) (unlawful subcontracting is recognized exception to Darlington principles);
Westchester Lace, Inc., 326 NLRB 1227 (1998); Carter & Sons Freightways, 325 NLRB 433,
438 (1998); Joy Recovery Technology Corp., 320 NLRB 356 (1995), enfd. 134 F.3d 1307 (7th
Cir. 1998); Ferragon Corp., 318 NLRB 359, 360–62 (1995), enfd. 88 F.3d 1278 (D.C. Cir.
10 1996) (Table); Handi-Bag, Inc., 267 NLRB 221 (1983).
b. Prima Facie Case
The General Counsel presented a prima facie Wright Line showing that Intership
15 discriminatorily subcontracted out MTS’ work. Intership knew that the MTS unit had elected the
Union, which satisfies the protected activity and knowledge elements. Regarding animus, there
is overflowing evidence of animus in the form of the several threats, interrogations, surveillance
activities and other unlawful actions present herein. In addition, the virtually lockstep timing
between the Union’s election victory and MTS’ subcontract strongly demonstrates animus.
20 La Gloria Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71 Fed. Appx. 441 (5th Cir. 2003).
c. Affirmative Defense
Respondent failed to show that it would have contracted out MTS’ chassis repair work,
25 absent the MTS unit’s protected activities. Intership contention that it subcontracted out MTS’
work for financial reasons is unpersuasive. First, Intership accepted MTS’ mounting losses for
several years without intervention, and only responded after MTS unionized. If MTS’ deep
losses were a valid reason, Intership would have subcontracted out the MTS operation vastly
sooner. Second, even though Intership contends that it subcontracted out MTS’ work because of
30 mounting losses, it conspicuously made no showing that it saved any money via the subcontract
(i.e., by offering business records showing how much money was saved by using Frank’s
Chassis).59 Third, there is extensive evidence of animus, which renders any contention that the
subcontract was non-discriminatory implausible. When Intership repeatedly told the MTS unit
that it would close if they unionized and then fulfilled its promise within 2 short days of the
35 Union’s election victory; its anti-Union sentiments became blatant. In sum, Intership
discriminatorily subcontracted out MTS’ work.
3. TTS Subcontract60
40 Intership discriminatorily subcontracted out TTS’s work.61 Intership failed to show that
59 Intership failed to offer records showing that MTS’ losses exceeded the cost of subcontracting to Frank’s Chassis.
60 This is pled in pars. 14 and 17 of the first complaint, which was amended to reflect an April 26, 2013 closure.
61 For the same reasons considered for MTS, the TTS subcontract was not a “partial closure” under Darlington.
Moreover, TTS was not a partial closure; it was simply a work relocation or subcontract of a single employer’s
(i.e., Intership) in-house Kalmar servicing division (i.e., TTS) to Tribo Tech (i.e., the new subcontractor), which left
Intership’s core business function (i.e., stevedoring) essentially unchanged.
JD−24−16
24
it would have subcontracted out TTS’ work, absent employees’ protected activities.
a. Prima Facie Case
5
The General Counsel made a prima facie showing of a Wright Line violation. Ryan
credibly testified that TTS employees were discussing unionizing. The several plant closure and
discipline threats, and other unlawful comments and actions, establish knowledge and animus.
10 b. Affirmative Defense
For many of the same reasons considered for MTS above, Intership’s claim that it would
have transferred out TTS’ work, irrespective of employees’ protected activities is unpersuasive.
First, its contention that it closed TTS because of mounting losses is undermined by its
15 acceptance of TTS’ mounting losses for several years without intervention. It only responded to
such losses, once TTS’ employees began considering unionizing. If TTS’ deep losses were the
true reason for the subcontract, Intership would have subcontracted out its work far earlier.
Second, even though Intership contends that it subcontracted out TTS’ work because of
mounting losses, it again made no showing that it saved money via the Tribo Tech subcontract.62
20 Third, there is extensive evidence of animus, which renders Intership’s claim that the TTS
subcontract was non-invidious implausible. Finally, Intership’s unlawful handling of the MTS
subcontract, in violation of Section 8(a)(3) and (5) demonstrates a common scheme to use
unlawful subcontracts and work transfers to thwart unionization.63
25 4. Changing Vacation Procedure on July 24, 201464
Intership’s alteration of the vacation procedure was found to violate Section 8(a)(5). It is,
thus, it unnecessary to determine whether such action also violates Section 8(a)(3), given that the
resulting remedy would be duplicative. Pennsylvania Energy Corp., 274 NLRB 1153 (1985).
30
Conclusions of Law
1. Intership, MTS and TTS, which collectively comprise the Respondent, are a
single employer, and are jointly and severally liable for the violations found herein.
35
2. Intership, MTS and TTS are individually, and as a single employer, employers
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
3. The Union is a labor organization within the meaning of Section 2(5) of the Act.
40
4. The Union is, and at all times material times was, the exclusive representative of
the employees for collective bargaining within the meaning of Section 9(a) of the Act in the
following appropriate bargaining unit, which has been identified as the Intership unit:
62 It failed to produce any records showing that the cost of using Tribo Tech was less than TTS’ deficits.
63 FRE 404(b) (specific acts of misconduct are relevant to demonstrate a common scheme or plan).
64 This allegation is pled in pars. 9 and 11 of the second complaint.
JD−24−16
25
All cargo delivery and receiving employees, timekeepers and paymasters, pier
custodians, maintenance workers (e.g. mechanics, welders, electricians and
gasoline expenders), gatemen and tally clerks employed at Intership’s Bayamon,
5 Puerto Rico stevedoring and marine terminal facility, excluding all administrative
executive employees, professionals, guards and supervisors as defined by the Act,
foremen, stevedores and all other employees.
5. The Union is, and at all times material times was, the exclusive representative of
10 the employees for collective bargaining within the meaning of Section 9(a) of the Act in the
following appropriate bargaining unit, which has been identified as the MTS unit:
All full-time mechanics, welders, utility, tire repair, and maintenance employees
employed by MTS at its facility located in Bayamon, Puerto Rico, but, excluding
15 all other employees, managers, supervisors and guards as defined in the Act.
6. Respondent violated Section 8(a)(1) by:
a. Interrogating employees about their Union or other protected activities;
20
b. Threatening employees that they would be disciplined or discharged, if
they engaged in Union or other protected activities;
c. Threatening employees that it would close, if they engaged in Union or
25 other protected activities;
d. Soliciting employees to vote against the Union;
e. Creating the impression that it was engaging in surveillance of employees’
30 Union or other protected activities;
activities; and
f. Engaging in surveillance of employees’ Union or other protected
35 g. Threatening employees with violence and/or physically abusing
them because they engaged in Union or other protected activities.
7. Respondent violated Section 8(a)(1) and (3) by:
40 a. Subcontracting and transferring its operations at MTS, its subsidiary,
and effective terminating the MTS unit, because of their Union or other protected activities.
b. Subcontracting and transferring its operations at TTS, its subsidiary, and
effective terminating its TTS employees, because of their Union or other protected activities.
45
8. Respondent violated Section 8(a)(1) and (5) by:
JD−24−16
26
a. Unilaterally changing the vacation check distribution system at Intership,
without affording the Union notice and an opportunity to bargain as the exclusive collective-
bargaining representative of the Intership unit.
5 b. Unilaterally subcontracting and transferring work performed by the MTS
unit, and effectively terminating the MTS unit, without affording the Union notice and an
opportunity to bargain as the exclusive collective-bargaining representative of the MTS unit over
this decision and its effects.
10 9. The unfair labor practices set forth above affect commerce within the meaning
of Section 2(6) and (7) of the Act.
10. Respondent has not violated the Act in any other manner.
15 Remedy
Having found that Respondent committed certain unfair labor practices, it is ordered to
cease and desist and to take certain affirmative action to effectuate the policies of the Act.
20 Although the General Counsel seeks an order requiring Respondent to restore MTS and
TTS, restoration of the status quo ante is inappropriate, when it causes undue hardship. Chinese
American Sewing Co., 227 NLRB 1670 (1977). For several reasons, I find that the restoration of
MTS and TTS will cause an undue hardship. First, Intership is presently under significant
financial duress and has sustained mounting losses; therefore, requiring it to restore 2 deeply
25 unprofitable subsidiaries, in tandem with its own losses, would create an undue hardship.
Second, while Intership accelerated MTS’ and TTS’ closures for discriminatory reasons, it is
probable that it would have eventually cut its losses and closed these unprofitable entities on its
own initiative. As a result, forcing Intership to reverse this eventual course via restoration
enhances an undue hardship finding. Lastly, MTS’ facility has been leased through 2018, its
30 equipment disassembled and disposed of, and over 3.5 years have passed since closure. TTS’s
building has also been emptied and is being marketed by a realtor, its equipment disassembled
and disposed of, and over 3 years have passed since closure.
Backpay for the MTS unit should be handled as follows:
35
[I]n order to recreate as nearly as possible the situation that existed at the time
Respondent should have bargained, and to make whole all employees of the …
[MTS unit] for any loss of pay suffered as a result of the discrimination against
them, we shall order Respondent to pay employees who were employed on the
40 date of the closure their normal wage rate from … [October 19, 2012], until the
earliest of the following conditions as met: (1) mutual agreement is reached with
the Union relating to subjects about which Respondent is required to bargain; (2)
good-faith bargaining results in a bona fide impasse; (3) the failure of the Union
to commence negotiations within 5 days of the receipt of Respondent’s notice of
45 its desire to bargain with the Union; or (4) the subsequent failure to the Union to
bargain in good faith. Of course, if Respondent decides to resume its … [MTS
JD−24−16
27
operations] and offers to reinstate the … [MTS unit] to their same or substantially
equivalent positions, its liability will cease as of that date.
National Family Opinion, 246 NLRB 521, 522 (1979).
5
Backpay for the TTS employees, where there was neither bargaining obligation nor unit,
should be handled under the procedure set forth by Purolator Armored, supra (describing the
backpay procedure where an employer discriminatorily and analogously closed a division, but,
demonstrated that restitution would create an undue hardship). Under Purolator Armored,
10 Respondent is required to offer reinstatement to each of the TTS discriminatees by either (1)
reinstituting its TTS operation, at its discretion, and offering reinstatement to each of the
discriminatees to their former positions or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or other rights and privileges previously
enjoyed; or (2) offering reinstatement to each discriminatee to any positions in its existing
15 Intership or other subsidiary operations, which they are capable of filling, giving preference to
the discriminatees in order of seniority; and in the event of the unavailability of jobs sufficient to
permit immediate reinstatement of all the discriminatees, place those for whom jobs are not now
available on a preferential hiring list for any future vacancies which may occur in jobs they are
capable of filling. Respondent shall also make the discriminatees whole by paying each of them
20 a sum of money equal to the amount that would have been earned as wages from April 26, 2013
(i.e., the commencement of the TTS subcontract) to the date that they either secure equivalent
employment with Respondent or it makes an offer of reinstatement, as stated above.
In addition to making the MTS unit and affected TTS employees whole for any loss of
25 earnings, such employees shall be made whole for the loss of any other benefits. Backpay shall
be computed on a quarterly basis from their discharges to proper offers of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). Respondent shall compensate these
30 employees for the adverse tax consequences, if any, associated with receiving lump-sum backpay
awards, and file with the Regional Director for Region 12, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board Order, a report allocating the backpay award
to the appropriate calendar years for each employee.65 Don Chavas, LLC d/b/a/ Tortillas Don
Chavas, 361 NLRB No. 10 (2014); AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
35
Respondent shall also rescind the unilateral changes made to the Intership unit’s vacation
procedures,66 unless it has already done so, and, henceforth, bargain with the Union concerning
any contemplated changes in the wages, hours, working conditions, and other terms and
conditions of employment of the Intership or MTS units.
40
65 On August 17, 2015, the General Counsel filed a Motion to Amend Complaint, which sought to supplement the
desired remedy by reimbursing affected employees for search for work and work related expenses caused by their
loss of employment, without regard to whether interim earnings are in excess of these expenses. Normally, those
expenses are considered an offset to interim earnings. But, the General Counsel seeks a change in existing rules
regarding search-for-work and work-related expenses. This would require a change in Board law, which is the sole
province of the Board. Therefore, I shall not include this remedial proposal in my recommended Order.
66 There is no evidence that employees suffered any monetary losses from the changes to the vacation procedure.
JD−24−16
28
Respondent shall distribute remedial notices electronically via email, intranet, internet, or
other appropriate electronic means to its employees, in addition to the traditional physical
posting of paper notices, if it customarily communicates with workers in this manner. J Picini
Flooring, 356 NLRB 11 (2010).
5
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended67
ORDER
10
Respondent, International Shipping Agency, Inc., and its subsidiaries, Marine Terminal
Services, Inc. and Truck Tech Services, Inc., which constitute a single employer located in
Bayamon, Puerto Rico, and other locales, its officers, agents, successors, and assigns, shall
15 1. Cease and desist from
(a) Interrogating employees concerning their Union or other protected activities;
(b) Threatening employees that they will be disciplined or discharged, if they engage in
20 Union or other protected activities;
(c) Threatening employees that it will close, if they engage in Union or other protected
activities;
25 (d) Soliciting employees to vote against the Union;
(e) Creating the impression that it is surveilling employees’ Union or other protected
activities;
30 (f) Engaging in surveillance of employees’ Union or other protected activities;
(g) Threatening employees with violence to their persons or property and/or physically
abusing them because they engage in Union or other protected activities;
35 (h) Subcontracting and transferring its operations at MTS, its subsidiary, and effectively
terminating the MTS unit, because of their Union or other protected activities;
(i) Subcontracting and transferring its operations at TTS, its subsidiary, and effectively
terminating its TTS employees, because of their Union or other protected activities;
40
(j) Unilaterally changing the vacation check distribution system at Intership, without
affording the Union notice and an opportunity to bargain as the exclusive collective-bargaining
representative of its employees at Intership in the following appropriate unit:
67 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.
JD−24−16
statutory rights.” Hickmott Foods, 242 NLRB 1357, 1357 (1979).
29
All cargo delivery and receiving employees, timekeepers and paymasters, pier
custodians, maintenance workers (e.g. mechanics, welders, electricians and
gasoline expenders), gatemen and tally clerks employed at Intership’s Bayamon,
5 Puerto Rico stevedoring and marine terminal facility, excluding all administrative
executive employees, professionals, guards and supervisors as defined by the Act,
foremen, stevedores and all other employees.
(k) Unilaterally subcontracting and transferring work performed at MTS, and effectively
10 terminating those employees, without affording the Union notice and an opportunity to bargain
over its decision to subcontract and its effects as the exclusive collective-bargaining
representative of its employees at MTS in the following appropriate unit:
All full-time mechanics, welders, utility, tire repair, and maintenance employees
15 employed by MTS at its facility located in Bayamon, Puerto Rico, but, excluding
all other employees, managers, supervisors and guards as defined in the Act.
(l) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.68
20
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Upon request, bargain with the Union as exclusive bargaining representative of its
25 employees in the MTS unit concerning their decision to subcontract out MTS’ operations and
terminate the MTS unit.
(b) Make whole the MTS unit employees in the manner set forth in the remedy section
of this Decision.
30
(c) Make whole the affected TTS employees by either (1) reinstating the TTS operation
and offering reinstatement to each of the discriminatees to their former positions or, if such
positions no longer exist, to substantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously enjoyed; or (2) offering reinstatement to each
35 discriminatee to any positions at Intership or any other subsidiary operations, which they are
capable of filling, giving preference to discriminatees in order of seniority, and in the event of
the unavailability of jobs sufficient to permit immediate reinstatement of all the discriminatees,
place those for whom jobs are not now available on a preferential hiring list for any future
vacancies which may occur in jobs they can fill.
40
(d) Make whole the TTS discriminatees by paying each of them a sum of money equal
to the amount that would have been earned as wages from the date of termination to the date they
either secure equivalent employment or receive an offer of reinstatement, together with interest
68 A broad order is warranted “when a respondent is shown to have a proclivity to violate the Act or has engaged in
such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental
JD−24−16
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
30
thereon.
(e) Compensate all affected MTS and TTS employees for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region
5 12, within 21 days of the date the amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay award to the appropriate calendar years for each employee.
(f) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, timecards,
10 personnel records and reports, and all other records necessary to analyze the amount of backpay
due.
(g) On request of the Union, rescind any changes made to the vacation scheduling
procedure at Intership.
15
(h). Within 14 days after service by the Region, post at its Bayamon, Puerto Rico facility
copies of the attached notice marked “Appendix.”69 Copies of the notice, on forms provided by
the Regional Director for Region 12, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
20 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. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
25 any other material. Respondent shall also shall duplicate and mail, at its own expense, a copy of
the notice to all former MTS and TTS employees employed by the Respondent at any time since
September 1, 2012. If the Respondent has since gone out of business or closed the Intership
facility involved in these proceedings, it shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by it there at any time since
30 September 1, 2012.
(i) 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
it has taken to comply.
35
Dated Washington, D.C., March 30, 2016
40
69 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
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 interrogate employees about their Union or other protected activities.
WE WILL NOT threaten employees that they will be disciplined or fired, if they engage in
Union or other protected activities.
WE WILL NOT threaten employees that we will close, if they engage in Union or other
protected activities.
WE WILL NOT solicit or lobby employees to vote against the Union.
WE WILL NOT create the impression that we are watching employees’ Union or other
protected activities.
WE WILL NOT watch employees’ Union or other protected activities.
WE WILL NOT threaten employees with violence to their persons or property and/or
physically abuse them because they engage in Union or other protected activities.
WE WILL NOT subcontract and transfer our operations at MTS, our subsidiary, and effectively
terminate the MTS unit, because of their Union or other protected activities.
WE WILL NOT subcontract and transfer our operations at TTS, our subsidiary, and effectively
terminating our TTS employees, because of their Union or other protected activities.
WE WILL NOT unilaterally change the vacation check distribution system at Intership, without
affording the Union notice and an opportunity to bargain as the exclusive collective-bargaining
representative of our employees at Intership in the following appropriate unit:
All cargo delivery and receiving employees, timekeepers and paymasters, pier
custodians, maintenance workers (e.g. mechanics, welders, electricians and
gasoline expenders), gatemen and tally clerks employed at Intership’s Bayamon,
Puerto Rico stevedoring and marine terminal facility, excluding all administrative
executive employees, professionals, guards and supervisors as defined by the Act,
foremen, stevedores and all other employees.
WE WILL NOT unilaterally subcontract and transfer work performed at MTS, and effectively
terminate those employees, without affording the Union notice and an opportunity to bargain
over our decision and related effects as the exclusive collective-bargaining representative of our
employees at MTS in the following appropriate unit:
All full-time mechanics, welders, utility, tire repair, and maintenance employees
employed by MTS at its facility located in Bayamon, Puerto Rico, but, excluding
all other employees, managers, supervisors and guards as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the
exercise of the rights set forth above.
WE WILL, upon request, bargain with the Union as exclusive bargaining representative of our
employees in the MTS unit concerning our decision to subcontract out MTS’ operations and
terminate the MTS unit.
WE WILL make whole the MTS unit employees, with interest.
WE WILL, in the event that we agree to reopen MTS, offer the former MTS employees their
former jobs or, if those jobs no longer exist, substantially equivalent positions.
WE WILL offer full and immediate reinstatement to each of the TTS employees who lost their
positions as a result of our discriminatory subcontract of their work by either (1) reinstating our
TTS operations and offering reinstatement to each of the discriminatees to their former positions
or, if such positions no longer exist, to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously enjoyed; or (2) offering reinstatement to
each discriminatee to any position at Intership or our other existing subsidiary operations, which
they are capable of filling, giving preference to discriminatees in order of seniority, and in the
event of the unavailability of jobs sufficient to permit immediate reinstatement of all the
discriminatees, place those for whom jobs are not now available on a preferential hiring list for
any future vacancies which may occur in jobs they are capable of filling.
WE WILL make whole the TTS discriminatees mentioned above by paying each of them a sum
of money equal to the amount that would have been earned as wages from the date of our
unlawful TTS subcontract to the date they either secure equivalent employment with us or we
make an offer of reinstatement, together with interest thereon.
WE WILL compensate affected MTS and TTS employees for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for
Region 12, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar years of each
employee.
INTERNATIONAL SHIPPING AGENCY, INC.,
AND ITS SUBSIDIARIES, MARINE
TERMINAL SERVICES, INC., AND TRUCK
TECH SERVICES,INC., A SINGLE
EMPLOYER
(Employer)
Dated 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 Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
NLRB Region 12, Sub Regional Office, La Torre de Plaza, Suite 1002, 525 F. D. Roosevelt Avenue,
San Juan, PR 00918-1002 (787) 766-5347 Hours: 8:30 a.m. to 5:00 p.m.
The Board’s decision can be found at www.nlrb.gov/case/24-CA-091723 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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 REGIONAL OFFICE’S COMPLIANCE
OFFICER, (813) 228-2455.