Sunrise Operations, LLC a Wholly-Owned Subsidiary of the Pasha Group

National Labor Relations Board - Administrative Judge Opinions

May 11, 2020

20-CA-219534 (N.L.R.B. May. 11, 2020)

JD(SF)-11-20
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SUNRISE OPERATIONS, LLC, a WHOLLY-
OWNED SUBSIDIARY OF THE PASHA GROUP
and Cases 20–CA–219534
20–CA–227593
20–CA–230861
INTERNATIONAL ORGANIZATIONS OF
MASTERS, MATES & PILOTS, ILA/AFL-CIO
Yasmin Macariola, Esq.,
for the General Counsel.
William Miossi and Kara E. Cooper, Esqs. (Winston & Strawn, LLP)
for the Respondent.
Lisa Demidovich, Esq., (Bush Gottlieb, a Law Group)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Lisa D. Ross, Administrative Law Judge. On May 2, 2018, the International
Organizations of Masters, Mates & Pilots, ILA/AFL-CIO (the Charging Party, MM&P, or the
Union) filed an unfair labor practice (ULP) charge against Sunrise Operations, LLC (Sunrise or
Respondent), a wholly owned subsidiary of the Pasha Group.1
On September 18, 2018, the Union filed a second ULP charge against Respondent which
was amended on October 2, 2018.2 On November 14, 2018, the Union filed a third ULP charge
against Respondent.3 On December 28, 2018, Region 20 of the National Labor Relations Board
(NLRB) consolidated all three charges and issued a Second Consolidated Complaint and Notice
of Hearing (complaint).
The complaint alleges that Respondent violated Sections 8(a)(5) and (1) of the National
Labor Relations Act (NLRA or the Act) when it failed/refused to: (1) furnish and/or unreasonably
delayed in furnishing necessary and relevant information to the Union; and (2) continue to abide
1 Case No. 20–CA–219534.
2 Case No. 20–CA–227593.
3 Case No. 20–CA–230861.
JD(SF)-11-20
2
by Section 36 of a Memorandum of Understanding (MOU) dated June 16, 1984 which required
the parties to meet for arbitration proceedings in Linthicum Heights, Maryland.
Respondent filed its answer and amended answer, denying all material allegations and
setting forth multiple affirmative defenses to the complaint.5
This case was tried in San Francisco, CA from November 6 through 8, 2019. Counsel for
the General Counsel as well as counsels for Charging Party and Respondent presented witness
testimony along with documentary evidence. After the trial, counsel timely filed extensive post-
hearing briefs. 10
On December 31, 2019, the General Counsel filed a motion to strike three (3) portions of
Respondent’s brief. Respondent filed its response on January 7, 2020. After carefully reviewing
the motion, Respondent’s response together with the record, I grant in part and deny in part the
General Counsel’s motion.415
Based upon the entire record, including the testimony of the witnesses, my observation of
their demeanor, and the parties’ briefs, I conclude that Respondent violated the Act as alleged.5
FINDINGS OF FACT20
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent Sunrise is a limited liability company with an office and place of business in
Charlotte, NC. Respondent is a wholly owned subsidiary of The Pasha Group (Pasha). Pasha, 25
which provides diversified global logistics and transportation services to automotive, maritime and
relocation industries, has an office and place of business in San Rafael, CA.6
It is undisputed that, at all material times, Respondent’s gross revenue exceeded $50,000
by transporting freight between Hawaii and California. Respondent has received goods valued in 30
excess of $5,000 from points outside the State of California. Accordingly, I find that Respondent
is an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act.
It is also undisputed, and I find that, at all material times, the International Organizations
of Masters, Mates & Pilots has been a labor organization within the meaning of Section 2(5) of the 35
Act.
4 These instances are discussed in more detail below in the appropriate section of the decision.
5 Abbreviations used in this decision are as follows: “Tr.” for the Transcript, “GC Exh. #” for the General
Counsel’s exhibits, “CP Exh. #” for Charging Party’s exhibits, “R. Exh. #” for Respondent’s exhibits, “GC Br.” for
the General Counsel’s brief, “CP Br.” for Charging Party’s brief, and “R. Br.” for Respondent’s brief. Specific
citations to the transcript and exhibits are included where appropriate to aid review and are not necessarily exclusive
or exhaustive.
6 The Pasha Group is not a party to this litigation. It is only referenced in this decision because Pasha is the
parent company of Respondent Sunrise Operations.
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3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts7
5
Pasha is the parent company to approximately 40 subsidiaries, including Respondent. Tr.
266–267.
The Union represents mariners throughout the U.S. and abroad. Specifically, it has
represented Licensed Deck Officers (LDOs) on maritime vessels since approximately 1981 10
through a series of collective bargaining agreements (CBAs) with Respondent’s predecessor
employers, Sealand and CSX. Both Sealand and CSX recognized the Union as the exclusive
bargaining representative for its LDOs. GC Exh. 2.
It is undisputed that the following employees constitute a unit appropriate for the purpose 15
of collective bargaining within the meaning of Section 9(b) of the Act:
Licensed Deck Officers (except where specifically otherwise provided, the term
“Licensed Deck Officers” whenever and wherever used in the Master Collective
Bargaining Agreement also includes the Master) on U.S. Flag oceangoing vessels.20
In 2004, CSX sold its shipping business to Horizon Lines, LLC (Horizon). Horizon also
recognized the Union as the exclusive bargaining representative for its LDOs.
Sometime in 2014, Horizon carved out their Hawaii trade lane business – four (4) 25
oceangoing vessels that traveled between California and Hawaii. Horizon’s four vessels were
named the Horizon Spirit, the Horizon Enterprise, the Horizon Pacific, and the Horizon Reliance.
The Union served as the collective bargaining representative for the LDOs on the Spirit,
Enterprise, Pacific and Reliance vessels. By 2015, Horizon sought to sell their Hawaii trade lane
business. 30
It is undisputed that Pasha purchased Horizon’s Hawaii trade lane business – or more
succinctly, the four vessels: Horizon Spirit, Enterprise, Pacific and Reliance. To purchase the four
vessels, Pasha engaged in an elaborate corporate ownership structure to own these vessels.
35
7 Although I have included record citations to highlight particular testimony or exhibits, my findings and
conclusions are not based solely on those specific citations, but rather on my review and consideration of the entire
record. The findings of fact are a compilation of credible testimony and other evidence, as well as logical inferences
drawn therefrom. In assessing credibility, I have relied primarily on witness demeanor. I also have considered
factors such as: the context of the witness’ testimony, the quality of the witness’s recollection, testimonial
consistency, the presence or absence of corroboration, the weight of the respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole. See Double D
Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen
Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed.Appx. 516 (D.C. Cir. 2003).
Credibility findings need not be all-or-nothing propositions. Indeed, nothing is more common in judicial decisions
than to believe some, but not all, of a witness’s testimony. Daikichi Sushi, supra at 622; Jerry Ryce Builders, 352
NLRB 1262, 1262 fn. 2 (2008) (citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on
other grounds 340 U.S. 474 (1951)).
JD(SF)-11-20
4
Specifically, Pasha created a wholly owned subsidiary, SR Holdings, LLC (SR Holdings),
which was formed solely to acquire Horizon’s four (4) Hawaii vessels and Horizon’s liabilities.
SR Holdings has no employees. Tr. 284, 301, see also GC Exh. 3, at 002186.
Horizon entered into a Contribution, Assumption and Purchase Agreement (CAPA) with 5
Pasha, SR Holdings and Respondent. Under this Agreement, Horizon would transfer the vessels
to Respondent. Thereafter, SR Holdings, a wholly owned subsidiary of Pasha, would purchase all
of the interests in Respondent, including the four vessels, which at some point, Respondent would
be acquired by Pasha, its parent company. Tr. 74, GC Exhs. 5–6.
10
In March and April 2015, prior to the acquisition, Horizon sent a copy of the CAPA and
the Disclosure Schedule to the Union. Tr. 74, GC Exh. 4. The CAPA and the Disclosure Schedule
specifically informed SR Holdings and Respondent that Horizon was a party to a CBA with the
Union. GC Exh. 3, at 002213, GC Exh. 4, at 8.
15
On April 28, 2015, Horizon informed the Union of the upcoming sale of the Enterprise,
Pacific, Reliance and the Spirit to SR Holdings. Horizon also explained to the Union that SR
Holdings would purchase the stock of Respondent, and as such, Respondent would be
contractually bound to the Union under the CBA as to the LDOs on the four vessels. GC Exh. 5.
20
That same day, SR Holdings also informed the Union of its upcoming acquisition of the
vessels. More importantly, SR Holdings told the Union that Respondent Sunrise would be honoring
the CBA upon closing of the purchase. GC Exh. 5. Prior to the sale, Respondent never requested
a copy of the CBA from the Union. Tr. 87, 307.
25
On May 26, 2015, approximately three days prior to the sale closing, Horizon sent the
Union a copy of the Assignment and Assumption Agreement (AAA) it had with Pasha, SR
Holdings and Respondent. Tr. 79, GC Exh. 7. The AAA described all of the parties’ duties and
obligations under the purchase transaction (CAPA) and who would be responsible for honoring
the CBA with the Union (which was Respondent). The AAA also included Schedule A – which 30
was supposed to be a copy of the CBA between Horizon and the Union with all 29 Memoranda of
Understanding attached.
When the Union reviewed the AAA, it immediately notified Horizon that Schedule A of
the AAA was incorrect, because it was missing several MOUs. Tr. 86. Despite this, however, the 35
Union received assurances from Horizon and George Pasha, President of Pasha, that Respondent
would assume and abide by the CBA. Tr. 144.
On May 29, 2015, Horizon transferred the Hawaii trade-lane business to Respondent. Tr.
279. It is undisputed that Respondent operates the oceangoing vessels (previously owned by 40
Horizon) transporting goods among the ports of Oakland, CA, Los Angeles, CA and Honolulu,
HI.
JD(SF)-11-20
5
It is also undisputed that Respondent retained a majority of the LDOs that were represented
by the Union when the vessels were owned by Horizon. Tr. 80, 326. In fact, Respondent admits
that it recognized the Union as the collective bargaining representative of the LDOs. Tr. 541, GC 5
Exh. 1(cc), at 5.8
As such, I find that Respondent is a successor to Horizon because it continued to operate
Horizon’s Hawaii trade lane business in basically unchanged form, retained all of the LDOs
employed by Horizon who were previously represented by the Union, and recognized the Union 10
as the collective bargaining representative of the LDOs. See Bronx Health Plan, 326 NLRB 810,
812 (1998), enfd. 203 F.3d 51 (DC Cir. 1999) (successorship can be established even if new owner
acquires only a portion of predecessor’s business so long as new owner acquires the separate
appropriate bargaining unit and that unit comprises a majority of the unit in the new operation),
see also NLRB v. Burns Security Services, 406 U.S. 272, 281–295 (1972)(employer is a successor 15
employer and must recognize/bargain with the union when: (1) there is substantial continuity
between the two enterprises, (2) the successor hired a majority of its employees from the
predecessor's employees, and (3) the bargaining unit that existed remains appropriate), and Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43–54 (1987)).9
20
Returning to the facts of the case, on May 30, 2015, Bill Peterson (Peterson), Vice President
of Operations for a company called Pasha Hawaii, emailed the master officers of the Reliance,
Pacific, Enterprise and the Spirit informing them that Pasha Hawaii, another subsidiary of Pasha,
had acquired their vessels and that it would be assuming the operations of the four container ships.
Peterson also informed the masters that another corporation, Crowley Maritime Corporation 25
(Crowley), would provide ship management through its subsidiary, Marine Transport
Management, Inc. (MTM). GC Exh. 30.
At this point, it is undisputed that, between March and May 2015, the Union had been told
that SR Holdings, Sunrise Operations, and Pasha Hawaii would operate the four containerships 30
that employs their LDO members. It is further undisputed that Pasha was the parent company to
all of these entities. Consequently, the Union sought to determine exactly who was the employer
of their LDO members on the four vessels? It is this ultimate question, given Respondent’s series
of corporate ownership transfers, that forms the basis of the information requests at issue in this
case.35
B. The Information Requests
1. September 19, 2017 Request.
40
8 Respondent also recognized the Union by: (1) complying with the terms and conditions of the CBA, (2)
protecting the wages, pension rights, and other economic benefits of the Union’s members for the life of each Hawaii
vessel, and (3) processing the Union’s grievances. Tr. 80–81. At no time during the acquisition or immediately
thereafter did Respondent inform employees or the Union that it would be setting its own initial terms and conditions
of employment or request to bargain over the MOUs that were not listed in Schedule A. Tr. 81, 88.
9 Respondent argues that it is not a successor employer to Horizon. I have addressed that argument in the
Discussion and Analysis section set forth below.
JD(SF)-11-20
6
On or about September 19, 2017, the Union requested documents from Respondent as to
whether Pasha, Pasha Hawaii and Respondent were a single employer. Tr. 155, GC Exh. 13.10 The
Union believed these entities were operating as one employer because: (1) Pasha and Respondent’s
names were on the CAPA and the AAA as parties to the acquisition of Horizon’s four vessels, see 5
GC Exhs. 3, 7; (2) Horizon previously informed the Union that Pasha and Respondent were parties
to the sale, see GC Exh. 5; (3) a day after the acquisition, Pasha Hawaii informed the masters of
the vessels that it would be operating the Spirit, Reliance, Enterprise, and Pacific, GC Exh. 30; and
(4) Pasha Hawaii advertised on its website the name on the side of each vessel as “Pasha.” Tr. 179,
GC Exhs. 14–17.10
Most importantly, Union Vice President Jeremiah Turner (Turner) testified that, because
there were so many entities claiming ownership of the vessels and/or that held primary
responsibility for the LDOs on the ships, the Union requested documents in order to determine
who the employer was. 15
As such, the Union requested that Respondent provide the following documents, from
September 1, 2014 to present, to include any:
(i) articles of incorporation or charters for the Pasha Group, Pasha Hawaii Holdings,
LLC, and Sunrise;20
(ii) bylaws or other similar corporate governance documentation for the Pasha Group,
Pasha Hawaii Holdings, LLC and Sunrise;
(iii) documents reflecting all of the directors and officers of The Pasha Group and Pasha
Hawaii;
(iv) documents reflecting stockholders holding over 10% of stock in the Pasha Group 25
and Pasha Hawaii;
(v) documents reflecting the familial relationships between any director, officer of
major stockholder of The Pasha Group and Pasha Hawaii;
(vi) organizational charts of the Pasha Group, Pasha Hawaii Holdings, LLC and
Sunrise;30
10 Whether Pasha, Pasha Hawaii and Respondent are in fact a single employer is not an issue asserted in the
complaint. It is only the Union’s belief that formed the basis for its information requests. As such, the single
employer issue, and any arguments about the Union’s single employer theory, are irrelevant and will not be
addressed in this decision.
However, Respondent attached Exhibits A and B to its Brief. These exhibits are correspondence from Region
20 determining whether Respondent, Pasha and Pasha Hawaii are a single employer. Respondent also referred to
these exhibits in its Brief at pages 57, 58 and 59. Although the letters were mentioned in Respondent’s Petition to
Revoke, and my Order Granting in Part and Denying in Part Respondent’s Petition, these letters were never
produced as part of Respondent’s Petition nor introduced into evidence at trial. As such, the General Counsel moved
to strike Exhibits A and B and Respondent’s references to them in its brief.
In response, Respondent urged that I take judicial notice of these letters since they were referenced in the
aforementioned pleadings in the case. However, the fact remains that these letters were not actually introduced into
the record. Moreover, the single employer issue is irrelevant to this case. In any event, I decline to take after-the-fact
judicial notice of Exhibits A and B since these exhibits were never offered as part of the record, nor were they
introduced into evidence at trial and are irrelevant to this complaint. Accordingly, I grant the General Counsel’s
motion to strike as to Exhibits A and B and strike the references to them at the last sentence on page 57, the first
sentence on page 58 and the second full sentence on page 59 in Respondent’s brief.
JD(SF)-11-20
7
(vii) documents reflecting the business locations of the Pasha Group, Pasha Hawaii
Holdings, LLC and Sunrise;
(viii) invoices reflecting any common customers or vendors of The Pasha Group, Pasha
Hawaii and Sunrise;
(ix) employee handbooks and employee policies for LDOs working on vessels owned, 5
in whole or in part, by The Pasha Group or Pasha Hawaii;
(x) documents reflecting the benefits plans offered to LDOs employed or working on
vessels owned, in whole or in part, by The Pasha Group or Pasha Hawaii;
(xi) applications or hiring documents for LDOs employed by or working on any vessels
owned, in whole or in part, by The Pasha Group or Pasha Hawaii;10
(xii) documents showing loans between or among The Pasha Group, Pasha Hawaii
Holdings and Sunrise operations;
(xiii) rental or lease agreements between or among The Pasha Group, Pasha Hawaii and
Sunrise Operations; documents showing any services, including financial, legal and
human resources services, rendered by the Pasha Group or Pasha Hawaii; 15
(xiv) documents showing any financial arrangements for compensation of services for or
rendered by The Pasha Group or Pasha Hawaii; and
(xv) documents showing whether the Pasha Group, Pasha Hawaii Holdings, LLC and
Sunrise have an ownership interest in the vessels Enterprise, Pacific, Spirit and
Reliance. GC Exh. 13.1120
Respondent did not respond to the Union’s first request. Tr. 159.
For its part, Respondent defended that it did not respond to the Union’s first information
request, because there was a pending ULP charge filed against it by the Union involving whether 25
Respondent, Pasha and Pasha Hawaii were acting as a single employer. See Case No. 20-CA-
202809.
2. March 2, 2018 Request.
30
On March 2, 2018, the Union sent a second request for information which was almost
identical to the September 19, 2017 request, except: (1) the March 2 request cited legal cases to
support the Union’s single employer theory, and (2) the Union removed a request involving the
ship management system. Tr. 158, GC Exh. 18.
35
Turner testified that the Union sent Respondent the second request because Respondent
had not responded to the Union’s September 19 request. Moreover, the Union sought information
to support its single employer theory in an upcoming arbitration that would settle the parties’ 2017
contract re-opener negotiations. GC Exh. 18.
40
Also, the Union told Respondent that it requested the information in order to determine
which entity – Respondent, Pasha or Pasha Hawaii – was obligated to sign the parties’ CBA if the
parties reached agreement during reopener negotiations. Lastly, according to Turner, who I found
credible, the Union needed these documents in order to resolve comments made by Respondent’s
Senior Vice president of Vessel Operations Ed Washburn (Washburn) during negotiations that 45
11 I note that Respondent did not become a corporate entity until on or about May 25, 2015.
JD(SF)-11-20
8
Pasha, not Respondent, would pick which Union would represent the LDOs on the four vessels.
GC Exh. 18, at 2.
It is undisputed that Respondent objected to providing much of the information,
particularly involving Pasha and Pasha Hawaii, and invited the Union to “meet and discuss” the 5
Union’s second request. The Union did not respond to Respondent’s offer to confer. GC Exhs. 19–
20.
Despite this, on March 14 and 23, 2018, the Union received a limited response to its second
information request. Tr. 160–66, GC Exhs. 19–20. The Union did not receive any documents for 10
request numbers 1–3, 8–10, 13–15 regarding Pasha or Pasha Hawaii. Tr. 161–164, GC Exh. 19.
The Union also did not receive any documents for request numbers 4–7 and 16-17. Tr. 162–165,
GC Exh. 19.
3. September 27, 2018 Request.15
On September 27, 2018, the Union sent Respondent a third information request asking for
an updated fleet roster. The Union sought this information based on a provision in the parties’
CBA (Section 1, Subsection 9(g) – Vessel Listings of the Master CBA) which entitled the Union
to discover which LDOs were permanently assigned to job positions on each vessel and whether 20
there were any “open” unassigned positions. Tr. 168, GC Exh. 21.
On October 1, 2018, Washburn was given two versions of the fleet roster. R. Exh. 3.
However, Washburn did not turn over the roster to the Union at that time. Although Respondent
and the Union met with one another on or about October 30, 2018, neither party mentioned the 25
roster. Respondent did not turn over the roster to the Union during this meeting. Tr. 226–228.
On or around December 4, 2018, two months after receiving the rosters, Washburn realized
he never sent the roster to Turner, so on December 4, 2018, Respondent, through counsel,
forwarded the roster to the Union. Tr. 495, GC Exh. 22. 30
After receiving and reviewing the roster, Turner emailed Respondent’s counsel noting
“errors” in the roster. R. Exh. 3. It is undisputed that, on December 10, 2018, Respondent, by its
counsel, sent Turner a “corrected” fleet roster. R. Exh. 7. It is undisputed that Respondent’s only
explanation for the two-month delay was that Washburn forgot to send the roster to the Union in 35
October 2018.
4. October 11, 2018 Request.
On October 11, 2018, the Union sent Respondent a fourth information request inquiring 40
whether Respondent implemented the terms of an August 3, 2018 arbitrator’s decision and award.
Tr. 171, GC Exhs. 23–24. Turner testified that the Union specifically sought wage arrearage
calculations from Respondent. Turner explained that these calculations were relevant to ensure its
members had been/were being properly paid in accordance with the arbitrator’s award. Id.
45
For its part, while Washburn admitted at trial that it had already implemented the terms of
the arbitration award within approximately a week of the August 3, 2018 decision, it had not
communicated this to the Union at the time of the information request. Moreover, Respondent did
JD(SF)-11-20
9
not respond to the Union’s information request until December 4, 2018, approximately two months
later. Tr. 176, 524–525, GC Exh. 25. According to Washburn, in order to fully respond to the
Union’s request, Respondent’s payroll manager had to obtain the necessary contribution
information from the Union’s benefit plans administrator then perform the calculations for each of
the LDOs who worked aboard the Spirit, Reliance, Enterprise and Pacific during the preceding 17 5
months. Washburn further testified that it took time to generate the report and verify that the LDOs
received accurate pay and benefit contributions (Tr. 73, 309, 497–498, 553).
5. November 7, 2018 Request.
10
It is undisputed that Union heard rumors that Pasha was constructing two new
containership vessels. Turner testified that it was important for the Union to understand what
corporate entity would construct these containerships, because: (1) the Union saw press releases
from Pasha Hawaii that it was constructing new containership vessels, (2) the Union saw Pasha,
Pasha Hawaii and Respondent as one employer, (3) these new vessels would be added to the 15
Hawaii trade lane that Respondent Sunrise/Pasha Hawaii operated, as such, (4) the Union believed
its LDO members would likely work on the new vessels, and (5) a provision in the parties’ CBA
required that the Union ensure that any new vessel construction complied with certain standards
and requirements. GC Exh. 2, at 210, GC Exhs 27–29.
20
Thus, on November 7, 2018, the Union sent its fifth information request to Respondent
asking for the sizing requirements for the LDO’s quarters on the two new containerships. Tr. 175–
176, GC Exh. 26. The Union based its request on Section 5, Subsection 4 – New Construction and
Major Reconversion of the Master CBA, which required that the LDOs’ quarters be constructed
within certain specifications.25
When asked why the Union requested information from Respondent Sunrise about Pasha
Hawaii’s new containerships (the ships were advertised as being part of Pasha Hawaii, not
Respondent), Turner explained that the Union saw Respondent, Pasha and Pasha Hawaii as one
employer due to the different corporate entities that the Union was told employed the LDOs. 30
Because of this confusion communicated by representatives of Respondent, Pasha and Pasha
Hawaii, the Union did not know which entity was responsible for the four containerships and/or
which entity served as the parent company of Respondent Sunrise. As a result, the Union
reasonably believed that, ultimately, these two new containerships would be vessels that its LDO
members would be employed on. 35
According to Turner, the Union came to believe that its LDO members would work on the
new containerships, because: (1) the new containerships had been mentioned at bargaining
meetings between the Union and Respondent Sunrise, (2) Pasha Hawaii’s Vice President of
Operations previously told the Union that it was the party operating the Spirit, Reliance, Enterprise 40
and Pacific vessels, (3) the four containerships that its LDO members were employed on and the
new containerships being built would have Pasha’s name on the sides of the ships, (4) all of the
containerships were listed on Pasha Hawaii’s website; and (5) all the press releases issued by
Pasha Hawaii stated that new containerships would be added to its Hawaii trade-lane. Tr. 176,
179–180, GC Exh. 14–17, 27–30. 45
Turner opined that, since the Union represented all of the LDOs on the Spirit, Enterprise,
Pacific and Reliance, regardless of what entity owned the vessels, the Union reasonably believed
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10
that any containerships being added to the Pasha Hawaii trade-lane would be manned by its LDO
members. Tr. 179, GC Exh. 2, at 210. Accordingly, Turner testified that, for the aforementioned
reasons, the information concerning the LDOs’ quarters was relevant and necessary to further the
Union’s representation of the LDOs.
5
In any event, on December 10, 2018, the Union received four different answers to
approximately 29 of its requests. Tr. 182, GC Exh. 32. The Union did not receive a response to
requests 1–3, 5–20, 23–27 and 29(a)-(c), 29(e)-(h). Tr. 182–183, GC Exh. 32.12
C. Repudiation of the 1984 MOU Grievance Arbitration Provision10
The parties disagree on the location of where all of the parties’ arbitration proceedings will
be held. Based on the documentary evidence and the credible testimony of Union General Counsel
Gabriel Terrasa (Terrasa), I find as follows:
15
Within the parties’ original 1981 CBA, Section 36 entitled “Grievance Procedure and
Arbitration” initially stated that all arbitration proceedings would be held in either New York or
San Francisco.
However, on June 16, 1984, Section 36 was amended in an MOU to read, “unless some 20
other place is mutually agreed upon, the grievance proceedings shall be held at the Union
Headquarters in Linthicum Heights, Maryland” (1984 MOU) Tr. 105, GC Exh. 2, at 2–3, 185.
12 Regarding the November 7, 2018 information request, the General Counsel moved to strike portions of the
first sentence on page 62 of Respondent’s Brief that states, “Despite Sunrise’s repeated assurances to the Union that
it does not have any technical drawings of the vessels being built by Keppel with the exception of a basic vessel
sketch and even after Sunrise produced a letter from Keppel expressly rejecting Sunrise’s request to see the blueprint
drawings of the new vessels for dissemination to the Union,” as well as the third sentence on page 62 that states,
“Given that Sunrise does not have access to the technical vessel drawings, coupled with the fact that Sunrise
attempted to gain access to these drawings from the third-party who owned the drawings, there can be no real
dispute that Sunrise complied with the Act by responding to only those requests to which it had responsive
information.” As grounds therefore, the General Counsel contends that there are no facts in evidence that “Sunrise’s
repeated[ly] assur[ed]…the Union that it did not have any technical drawings…,” that “Sunrise produced a letter
from Keppel expressly rejecting Sunrise’s request to see the blueprint drawings of the new vessels…” or that
“Sunrise d[id] not have access to the technical vessel drawings” and/or “attempted to gain access…from the third-
party who owned the drawings.” As such, allowing Respondent’s statements to stand would be giving Respondent
the ability to introduce facts not in evidence then argue its position therefrom, denying the General Counsel (and the
Charging Party Union) due process under Section 102.45(b) of the Board’s Rules and Regulations. See also Today’s
Man, 263 NLRB 332, 333 (1982). Respondent objected to striking these sentences, citing the Board’s decision in
Cintas Corp., 353 NLRB 752, 756 (2009), arguing that all of its statements are legal argument which it is entitled to
do in its brief.
However, Respondent’s reliance on Cintas is misplaced. In Cintas, the Board refused to strike certain portions
of the Union’s brief, because the Board found the Union’s statements constituted a legal argument since the
statements in the Union’s brief drew conclusions from certain facts already in evidence. Id at 756. However, in this
case, Respondent never elicited testimony or introduced evidence in the record that “Sunrise repeated[ly]
assur[ed]…the Union that it did not have any technical drawings…,” that “Sunrise produced a letter from Keppel
expressly rejecting Sunrise’s request to see the blueprint drawings of the new vessels…” or that “Sunrise d[id] not
have access to the technical vessel drawings” and/or “attempted to gain access…from the third-party who owned the
drawings.” Thus, Respondent cannot draw conclusions from these facts as legal argument when the aforementioned
facts were never introduced into evidence. Accordingly, I agree with the General Counsel that the aforementioned
sentences in Respondent’s brief must be struck.
JD(SF)-11-20
11
Terrasa testified that Respondent knew that the parties’ arbitration proceedings were to be
held at the Union’s headquarters in Linthicum Heights, MD because it previously met with the
Union for two different arbitrations in Linthicum Heights: one on April 26, 2018, see GC Exh. 9,
and the second on July 26, 2018. Tr. 97, 101–102; GC Exhs. 10-11.
5
Terrasa further testified that, at the April 26, 2018 arbitration, Respondent admitted into
evidence as a joint exhibit the CBA which included the 1984 MOU. Tr. 100, GC Exh. 10. I found
Terrasa’s testimony credible on this point as record evidence corroborated his testimony. GC Exhs.
10–11.
10
Nevertheless, it is undisputed that, in or around September 14, 2018, Respondent’s counsel
informed the Union that the parties’ upcoming arbitration should be held in San Francisco, CA,
not Linthicum Heights, MD. Respondent based its argument on Section 36 of the parties’ original
1981 CBA. Tr. 103, GC Exh. 12, at 256.
15
To that end, Washburn testified that the 1984 MOU was not included in the AAA from
Horizon, and as such, Respondent never agreed to change the arbitration location from New
York/San Francisco to Linthicum Heights, MD. Tr. 547. According to Washburn, since
Respondent never signed the 1984 MOU formally agreeing to the location change, the parties’
1981 CBA was the applicable CBA governing the issue, which stated that all arbitrations were to 20
be held in San Francisco (since it involved west coast vessels). GC Exh. 2, at 1–2, 4, GC Exh. 12,
at 256.
However, I do not find Washburn’s testimony credible on this point. Specifically, I note
that, on cross examination by counsel for the Charging Party, Washburn could not explain why, 25
despite Respondent not having, seeing or recognizing the 1984 MOU, Respondent admittedly
implemented all of the pay procedures and the 401(k) provisions contained therein. Tr. 107–108,
GC Exh. 2, at 182–189.13 Washburn stammered and evaded answering Charging Party counsel’s
question until, ultimately, he admitted that the pay procedures and the 401(k) provisions from the
parties’ 1984 MOU were implemented.30
Moreover, Terrasa testified that, immediately prior to the acquisition, he personally told
Respondent’s General Counsel Amy Jacob (Jacob) about the missing MOUs, and after Respondent
acquired Horizon’s Hawaii trade lane business, Terrasa gave a copy of the complete CBA with all
of the MOUs to Respondent during the parties’ reopener negotiations on July 11, 2017. Tr. 89.35
Respondent never objected to any of the provisions in the CBA during these negotiations.
13 Washburn was articulate, open and very descriptive in his answers to questions posed by Respondent’s
counsel, but on cross examination by counsel for the General Counsel, and especially with counsel for the Union, his
answers were short, direct, extremely vague, one-to-two-word answers. I also note that Washburn’s testimony was so
vague, counsel for the Union had to continually restate and rephrase her questions in order to pull answers from Mr.
Washburn.
I also found Washburn’s testimony disingenuous at best. Specifically, when I asked him whether he was
employed by Pasha, he remarked “he didn’t know.” I find it incredible that the Vice President of Operations (or anyone
for that matter) would not know by whom he is employed. Overall, Washburn’s appearance left me with the impression
that he was committed to sharing as little information as possible unless it benefited Respondent, and accordingly,
except where noted in this decision, I found Washburn’s entire testimony less than fully credible.
JD(SF)-11-20
12
Lastly, as stated earlier in this decision, Washburn himself asked for and the Union gave
him a copy of the complete CBA with all of the MOUs (including the June 1984 MOU) on
September 1, 2017. Tr. 542–544, GC Exh. 8.
Accordingly, I find that the location of arbitration proceedings was/is governed by the 5
parties’ 1984 MOU. I also find that Respondent was given a copy of the 1984 MOU prior to
September 2018. While Respondent may not have signed the 1984 MOU, I conclude that
Respondent demonstrated its awareness of the 1984 MOU and its knowledge of location of
arbitration proceedings by previously meeting with the Union for arbitration proceedings in
Linthicum Heights, MD and by complying/implementing the pay procedures and financial 10
provisions contained within the 1984 MOU.
Therefore, according to the parties 1984 MOU, I find that all arbitrations, including the
September 2018 arbitration, are to be held at the Union’s headquarters in Linthicum Heights, MD.
15
DISCUSSION AND ANALYSIS
After reviewing all of the evidence, I conclude that:
I. RESPONDENT VIOLATED SECTIONS 8(A)(5) AND (1) OF THE ACT WHEN IT FAILED/REFUSED 20
TO FURNISH AND/OR UNREASONABLY DELAYED IN FURNISHING NECESSARY AND
RELEVANT INFORMATION REQUESTED BY THE UNION
A. Legal Standard
Each party to a bargaining relationship is required to bargain in good faith. See Section 25
8(a)(5) of the Act. Part of that obligation is that both sides are required to furnish relevant
information upon request. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). This duty is
statutory and exists regardless of whether there is a collective-bargaining agreement between the
parties. American Standard, 203 NLRB 1132 (1973).
The employer’s duty to provide relevant information exists because without the 30
information, the union is unable to perform its statutory duties as the employees’ bargaining agent.
Thus, “[t]he refusal of an employer to provide a bargaining agent with information relevant to the
Union's task of representing its constituency is a per se violation of the Act” without regard to the
employer’s subjective good or bad faith. Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975);
Procter & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979).35
Information concerning employees in the bargaining unit and their terms and conditions of
employment, is deemed “so intrinsic to the core of the employer-employee relationship” to be
presumptively relevant. Disneyland Park, 350 NLRB 1256, 1257 (2007); Sands Hotel & Casino,
324 NLRB 1101, 1109 (1997). Presumptively relevant information must be furnished on request
to employees’ collective-bargaining representatives unless the employer establishes legitimate 40
affirmative defenses to the production of the information. Metta Electric, 349 NLRB 1088 (2007);
Postal Service, 332 NLRB 635 (2000).
However, when the requested information does not concern subjects directly pertaining to
the bargaining unit, such material is not presumptively relevant. Under those circumstances, the
JD(SF)-11-20
13
burden is upon the union to demonstrate the relevance of the material sought. Disneyland Park,
supra, at 1257; Richmond Health Care, 332 NLRB 1304, 1305 fn. 1 (2000). To show relevance,
the union must demonstrate that it had “a reasonable belief supported by objective evidence for
requesting the information.” G4S Secure Solutions (USA), 369 NLRB No. 7, at 2 (2020); see also,
Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). 5
Suspicion alone is not enough, and an articulation of general relevance is insufficient. G4S
Secure Solutions, supra (citations omitted). “Whether a union has gone beyond ‘mere suspicion’
to show relevance is a factual question to be decided on a case-by-case basis.” Id., see also Postal
Service, 310 NLRB 701, 702 (1993). Rather, the Union must demonstrate an objective factual basis
for believing the requested information is relevant, unless the relevance of the information should 10
have been apparent to the employer under the circumstances. Disneyland Park, supra at 1258. A
“liberal, discovery-type standard” to determine relevance is used, and the Union’s burden to
establish the relevance of their information requests is “not exceptionally heavy.” A-1 Door &
Building Solutions, 356 NLRB 499, 500 (2011).
B. Analysis15
1. September 19, 2017 and March 2, 2018 requests.
Complaint paragraph 8(a)-(e) allege that Respondent failed/refused to furnish and/or
unreasonably delayed in furnishing information to the Union as to requests 3 – 7, 11 – 15 or failed 20
to furnish information regarding Pasha and Pasha Hawaii as to request 1 – 2, and 8 – 10.
Requests 3-7 and 11-15 ask for documents that, on their face, do not directly concern
subjects pertaining to the bargaining unit. Thus, the Union must establish relevance. However, I
conclude the Union has satisfied its burden of relevance. 25
Specifically, the Union requested these documents, because it was told, by Horizon that
SR Holdings and Respondent would own the four vessels and thus have direct responsibility over
the LDOs that the Union represented. Subsequently, the Union received the acquisition documents,
which revealed that Horizon’s trade lane business would be bought by SR Holdings, who then 30
would transfer ownership to Respondent, who was a subsidiary of Pasha. Then, after the
acquisition, Pasha Hawaii’s Vice President of Operations informed the Union that it would have
primary ownership responsibility of the four vessels, and as such, would be the primary employer
for the LDOs that the Union represented.
35
Thus, I find that the acquisition documents, Pasha and Pasha Hawaii themselves provided
the Union with its belief that any of these entities could be the employer for the LDOs that the
Union represented. Accordingly, I conclude that the Union’s request for the aforementioned
documents was relevant to determine who was the employer for the LDOs on the four vessels the
Union represented. Respondent had an obligation to provide this information to determine whether 40
Pasha and/or Pasha Hawaii were the employer to the LDOs (since it created the confusion
regarding who owned the four vessels), and its failure to furnish these documents violated Sections
8(a)(5) and (1) of the Act.
Similarly, Requests 1, 2, and 8–10 sought information concerning the ownership/corporate 45
relationship between Respondent, Pasha and Pasha Hawaii. Again, these documents are relevant
JD(SF)-11-20
14
because the Union was informed by Horizon, SR Holdings, Pasha and Pasha Hawaii themselves
that SR Holdings, Respondent, Pasha and Pasha Hawaii may all be the owners of the four vessels
and/or may be the employer to the LDOs on the vessels. The Union was entitled to know the
employer to the LDOs they represented, and therefore, had a reasonable belief based on objective
factual evidence for requesting documents to determine exactly who would be the employer 5
obligated to the parties’ CBA. Respondent’s failure to provide these documents as to it, Pasha and
Pasha Hawaii violated the Act as alleged.
Respondent claims, as its affirmative defense, that the September 19, 2017 and March 2,
2018 information requests are untimely because they fall outside of the 10(b) period. GC Exh. 10
1(cc) at 12. Section 10(b) of the Act prohibits the Board from issuing a complaint based on
allegations that did not occur within six months of the filing of the ULP charge. 29 U.S.C. §160.
The record reveals that the Union filed its first ULP charge (regarding the September 19,
2017 and the March 2, 2018 requests) on May 2, 2018. GC Exh. 1(a). The six-month period for
issuing a complaint on this charge began on December 2, 2017. However, the 10(b) period does 15
not start when the Union first issued its information request. Rather, it began to run when the Union
received actual or constructive notice of the unlawful conduct that constitutes the alleged unfair
labor practice. See Vanguard Fire & Security Systems, 345 NLRB 1016, 1016 (2005), enfd. 468
F.3d 952 (6th Cir. 2006); Allied Production Workers Local 12, 337 NLRB 16, 18 (2001) (finding
that the 6-month period provided by Section 10(b) begins to run only when a party has “clear and 20
unequivocal notice” of the unfair labor practice). The burden of showing such clear and
unequivocal notice is on the party raising Section 10(b) as an affirmative defense – or in this case
Respondent. See Dedicated Services, 352 NLRB 753, 759 (2008); A & L Underground, 302 NLRB
467, 469 (1991).
25
Even assuming, arguendo, that the Union had “clear and unequivocal notice” that
Respondent did not intend to respond to its September 19, 2017 request, Respondent cannot show
that the March 2, 2018 information request, which is practically identical to the September 19,
2017 information request, was untimely. In fact, the Union’s March 2, 2018 request falls well
within the 10(b) period for the ULP charge that was filed on May 2, 2018. Respondent’s 30
untimeliness argument has no merit.
Respondent also argues that it was prohibited from timely turning over the documents
responsive to the September 2017/March 2, 2018 requests since it was defending an ULP charge
filed by the Union alleging that Respondent, Pasha and Pasha Hawaii were acting as a single 35
employer. Thus, turning over the documents, Respondent contends, would be tantamount of
unlawful pretrial discovery. See Offshore Mariners United, 338 NLRB 745, 746 (2002); and David
R. Webb Co., 311 NLRB 1135 (1993) (no pretrial discovery of documents allowed in Board
proceedings).
40
However, the Board has rejected Respondent’s argument on this point. See National
Broadcasting Company, Inc. 352 NLRB 90, 101 (2008) citing Dodger Theatricals Holdings, Inc.,
347 NLRB 953, 967 (2006) (Board found information requested by the union relevant to employer
single employer status and ordered it to be turned over to union without being considered pretrial
discovery – the fact that the union filed its arbitration request regarding single employer status, 45
and the case had been scheduled for arbitration did not “change the nature and relevancy of the
union's information request.”), see also Kellogg's Snack, 344 NLRB 756, 760 (2005) (ALJ,
affirmed by Board, required information to be turned over, even though some of the same
JD(SF)-11-20
15
information was subpoenaed by union in an arbitration proceeding). As such, despite that
Respondent and the Union were involved in an ULP matter concerning the same information the
Union requested be turned over, Respondent was nevertheless required to timely furnish the
documents. It did not.
5
Accordingly, Respondent violated the Act as to the Union’s September 19, 2017 and March
2, 2018 information requests.
2. September 27, 2018 request.
10
Complaint paragraph 9(a) alleges that Respondent unreasonably delayed in furnishing the
Union with an updated fleet roster showing which LDOs were permanently assigned to positions
on the Spirit, Reliance, Enterprise and Pacific and how many available positions there were on the
four vessels operated by Respondent. I find that the Union’s request for the aforementioned roster
was directly relevant to its representation of the LDOs since the parties’ CBA specifically entitled 15
the Union to this information. See GC Exhs. 2, 21, see also Disneyland Park, 350 NLRB 1256,
1257 (2007); Sands Hotel & Casino, 324 NLRB 1101, 1109 (1997) (documents concerns
bargaining unit employees and their terms and conditions of employment is presumptively relevant
and must be timely furnished to the Union).
20
Respondent ultimately furnished this information albeit delayed by two months. However,
the Board has held that a two-month delay in furnishing relevant information violates Section
8(a)(5) of the Act. See Overnight Transportation Co., 330 NLRB 1275 (2000) (an employer is
required to furnish relevant information requested by the Union in a timely fashion); see also
Postal Service, 310 NLRB 530, 536 (1993) (two-month delay excessive); Postal Service, 308 25
NLRB 547, 550 (1992) (five-week delay excessive).
Further, Respondent’s reason for the two-month delay, Washburn forgot to turn the
document over, failed to justify the delay. See Postal Service, 359 NLRB 56, 58 (2012) (one-
month delay absent evidence justifying delay unreasonable); Postal Service, 308 NLRB 547, 551 30
(1992) (four-week delay unreasonable); International Credit Service, 240 NLRB 715, 718–719
(1979), enfd. in relevant part 651 F.2d 1172 (6th Cir. 1981) (six-
week delay unreasonable); Monmouth Care Center, 354 NLRB 11, 52 (2009), enfd. 672 F.3d
1085 (D.C. Cir. 2012) (six-week delay unreasonable).
35
Thus, I conclude that Respondent violated the Act regarding the Union’s September 27,
2018 request.
3. October 11, 2018 request.
40
The General Counsel contends in Complaint paragraph 9(c) that Respondent unreasonably
delayed in providing the Union with documents confirming that it implemented an August 3, 2018
arbitrator’s award. The Union’s request for this information is directly relevant to its representation
of the LDOs since the information sought would assure the Union that Respondent properly
calculated and implemented wage arrearages owed to the LDOs. Disneyland Park, supra, Sands 45
Hotel & Casino, supra.
Again, Respondent’s two-month delay in furnishing this information violates the Act
unless there is evidence justifying the delay.
JD(SF)-11-20
16
Here, Respondent defends the delay by arguing that Washburn “had been traveling almost
non-stop and [Respondent] had…a host of competing priorities.” However, other than
Respondent’s statement, Respondent provided no evidence to support its rationale regarding the
delay. Moreover, even assuming Respondent’s delay was justifiable, which I do not find, it failed 5
to immediately inform the Union, at the time of the request, that there would be a delay or
communicate to the Union the reasons therefor. Rather, Respondent simply delayed for two
months in providing the Union with the requested information and its reasons for the delay.
Nevertheless, the Board has rejected these types of delayed justifications. See E.I. Du Pont 10
De Nemours & Co. & Ampthill Rayon Workers, Inc., Local 992, Int'l Bhd. of Du Pont Workers,
366 NLRB No. 178 (2018) (employer’s seven month delay in providing information violated the
Act, because: (1) the employer failed to provide any explanation or argument justifying the delay,
(2) when the employer proffered an after-the-fact explanation for the delay, the Board found no
evidence to support the explanation, and (3) the employer “never once” requested an extension of 15
time or to narrow the scope of the request).
Accordingly, I conclude Respondent violated the Act as to the Union’s October 11, 2018
request.
20
4. November 7, 2018 request.
Lastly, complaint paragraph 9(b) alleges that Respondent failed to furnish information
about the sizing requirements for the LDO’s quarters on two new containerships that the Union
believed its LDO members would operate. I find the Union’s request for this information from 25
Respondent directly relevant as a term/condition of employment, because the parties’ CBA entitled
the Union to this information. See GC Exh. 26.
Respondent contends that the information requested by the Union is irrelevant, and thus
not required to be furnished, because the new containerships were being built and operated by 30
Pasha Hawaii not Respondent. However, I find that the Union had a reasonable belief based on
objective factual evidence for seeking these documents from Pasha Hawaii.
Specifically, the record reveals that: (1) the Union was first told by Respondent at reopener
negotiations about the new containerships, (2) the four containerships that the LDO members were 35
employed on and the new containerships being built would have Pasha’s name on the sides of the
ships, (3) all of the containerships, including the new vessels, were listed on Pasha Hawaii’s
website; (4) Pasha Hawaii’s Vice President of Operations previously told the Union that it
maintained ownership over the four vessels (Spirit, Enterprise, Pacific and Reliance) in the Hawaii
trade lane and would be primarily responsible for employing the LDOs, and (5) all the press 40
releases issued by Pasha Hawaii stated that new containerships would be added to its Hawaii
trade-lane. As such, the Union had a reasonable objective factual basis, based on the differing
information told to it by representatives of Respondent, Pasha, and Pasha Hawaii, to inquire which
employer entity would operate the two new containerships. Moreover, since Pasha Hawaii, through
its own press releases, notified the Union that the new containerships would be added to the Hawaii 45
trade lane business, the Union had an objective factual basis on which to conclude its LDOs would
man the new vessels.
JD(SF)-11-20
17
Therefore, since the new containerships would be built under the banner of either
Respondent, Pasha, or Pasha Hawaii, I find the Union’s November 7, 2018 request for information
concerning the sizing of the LDOs’ quarters on the new containerships relevant and necessary.
Respondent was obliged to furnish this information to the Union, and when it did not as to itself,
Pasha and Pasha Hawaii, Respondent violated Section 8(a)(5) and (1) of the Act. 5
C. Respondent’s Affirmative Defenses to Furnishing the Requested Information
In addition to its arguments that were specific to the information requests, Respondent
asserted several other affirmative defenses to this complaint. However, as detailed below, all of 10
these defenses are meritless.
Respondent first contends that it is not a successor employer to Horizon since it only
acquired 30 percent of Horizon’s assets. However, the Board dismissed this argument to
successorship in Bronx Health Plan, 325 NLRB at 812, and as such I have determined that
Respondent is a successor employer to Horizon. See Findings of Facts, at 4–5, supra. 15
Next, Respondent, for the first time in this case, challenges the appropriateness of the LDOs
as a bargaining unit. Specifically, Respondent claims that the LDOs are supervisors under Section
2(11) of the Act. In fact, both parties dedicate a large portion of their briefs to addressing this issue.
See R. Br. at 32–54; see also Tr. 516, R. Exhs. 1, 5; GC Br. at 9–11. 20
Specifically, Respondent argues all LDOs – the master, chief/first, second and third mate
officers – are supervisors within Section 2(11). While it appears that the General Counsel concedes
that the master mate officer is a supervisor, counsel for the General Counsel nevertheless contends
that the second and third mate officers are employees, not supervisors under Section 2(11). Both 25
parties cite to various Board precedent to support their respective positions.
Individuals are statutory supervisors under Section 2(11) of the Act if: (1) they hold the
authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline
other employees, responsibly direct them, adjust grievances or effectively recommend such action;30
(2) their “exercise of such authority is not…merely routine or clerical nature, but requires the use
of independent judgment;” and (3) their authority is held “in the interest of the employer.” 29
U.S.C. Section 152, see also NLRB v. Kentucky River Community Care, 532 U.S. 706, 713 (2001)
citing NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573–574 (1994). In
this case, Respondent carries the burden of proving supervisory status. See Dean & Deluca New 35
York, Inc., 338 NLRB 1046, 1047 (2003).
Even if I conclude that the master mate officer is a supervisor under the Act (since s/he,
inter alia, recommends/issues discipline, hires/fires LDOs, can transfer/lay off/suspend, promote
LDOs, schedule/recall/rehire/assign work to/grant time off and respond to leave requests LDOs), 40
I find, and the record clearly establishes, that Respondent’s second and third mate LDOs are not
supervisors within Section 2(11) as the evidence reveals they have no authority to hire/fire,
discipline or recommend discipline, transfer, lay off, promote or suspend, schedule, reschedule,
recall or assign any LDOs. Tr. 348–351, 400–402.
45
Respondent argues that second and third mate officers are supervisors when they serve as
Officers of the Watch (OWW). However, the Board, in Chevron Shipping Co., 317 NLRB 379,
JD(SF)-11-20
18
380 (1995), determined that LDOs are not supervisors when serving as OWWs. Specifically, the
Board found that while OWWs are
responsible for directing the unlicensed employees, assigning tasks, and ensuring
the safety of the ship and its cargo…their use of independent judgment and 5
discretion is circumscribed by the master's standing orders, and the Operating
Regulations, which require the watch officer to contact a superior officer when
anything unusual occurs or problems occur.
Id at 381. As such, I conclude that OWW duties are more of a routine versus supervisory nature 10
since “the duties of the crewmembers, both licensed and unlicensed, are delineated in great detail
in the Regulations; thus, the officers and crew generally know what functions they are responsible
for performing and how to accomplish such tasks.” Id.
Respondent also asserts that second and third mate LDOs are supervisors because they can 15
evaluate whether an unlicensed officer is competent to stand watch and discipline them
accordingly. However, Respondent failed to proffer any examples in the record that their second
and third mate LDOs perform these functions. Moreover, even if Respondent had offered such
evidence, it would not turn second and third mate LDOs into supervisors since the determination
that a fellow officer is incompetent and/or insubordinate on duty would be so obvious and 20
egregious that “little [supervisory] independent judgment is needed.” Chevron Shipping Co. supra
at 381.
Moreover, Respondent’s own disciplinary records show that only the Master, Chief Mate
and Chief Engineer ever issued letters of warnings to officers. GC Exh. 33. While Respondent 25
offered an instance where a Master fired a Chief Mate, the record reveals that the Master consulted
with his superiors before issuing discipline. Tr. 519.
Respondent’s argument that its LDOs are supervisors is further undermined by its own
Safety Management Administration policies which dictate that the Master evaluates the Second 30
and Third Mates, while the Chief Mate is responsible for personnel supervision. R. Exh. 5, at
SO_001488 and SO_001522. Neither of these job duties are listed under the second and third
mates’ job responsibilities. R. Exh. 5, at SO_001523 – SO_001528.
Respondent also solicited testimony describing a myriad of job functions that, it contends, 35
require a LDO to demonstrate independent supervisory judgment (i.e., situations where the OWW
enters or leaves port, what to do when the vessel is in heavy traffic, navigating the vessel in
inclement weather, how to handle an actual/potential threat to the vessel’s safety, coordinating
abandon ship drills, lifeboat inspections, processes for typing up vessels).
40
However, the evidence reveals that none of these tasks require independent judgment since
the LDOs either must: 1) follow the Master’s established orders or seek clarification from the
superior on duty on handling any particular situation, or (2) adhere to the established protocols
found in Respondent’s Safety Management Administration policies. See Tr. 342, 347, 395–396,
398, R. Exh. 5, at SO_001350, SO_001596, and SO_001652, see also In re Oakwood Healthcare, 45
Inc. 348 NLRB 686, 693 (2006)(a judgment is not independent if it is dictated or controlled by
detailed instructions, whether set forth in company policies or rules, the verbal instructions of a
higher authority, or in the provisions of a collective bargaining agreement”), J.C. Brock Corp., 314
JD(SF)-11-20
19
NLRB 157, 158 (1994) (quoting Bowne of Houston, 280 NLRB 1222, 1223 (1986)) (“[T]he
exercise of some supervisory authority in a merely routine, clerical, perfunctory, or sporadic
manner does not confer supervisory status.”).14
Respondent also offered Washburn’s testimony as to his knowledge as to whether 5
Respondent’s LDOs are supervisors. Tr. 516. However, I accord Washburn’s testimony very little
weight since it constitutes mainly opinion evidence. In fact, Washburn has no independent or
expert knowledge regarding the supervisory status of Respondent’s LDOs much less Section
2(11)’s standards for evaluating one’s supervisory status. Simply put, Respondent has failed to
show that its LDOs are supervisors under the Act. 10
Accordingly, I find the evidence clearly shows that Respondent’s second and third mate
officers perform duties that are routine in nature and do not perform any supervisory functions as
set forth in Section 2(11) of the Act. As a result, I conclude that the Board retains jurisdiction over
this matter as Respondent’s second and third LDOs are employees under the Act and form an 15
appropriate bargaining unit.
Lastly, Respondent argues that the Board lacks jurisdiction in this matter because the Union
was never certified as a Section 9(a) representative for the LDOs. However, as counsel for the
General Counsel argues in her brief, Section 9(a) certification through the Board is not the only 20
way the Union can become the exclusive bargaining representative of a bargaining unit. See
Barrington Plaza & Tragniew, Inc., 185 NLRB 962, 963 (1970), enfd. in part 470 F.2d 669 (9th
Cir. 1972)(Board noted that the requisite proof of majority status need not take the form of a Board
certification or card showing. [T]he existence of a prior contract…raises a dual presumption…that
the union was the majority representative at the time the contract was executed, and a presumption 25
that its majority continued at least through the life of the contract. Such a presumption
applies…even in a successorship situation).
In this case, the evidence overwhelmingly demonstrates that the Union was the exclusive
bargaining representative for the LDOs. Specifically, the record reveals that the Union had a series 30
of CBAs with Respondent’s predecessor employer CSX, Sealand and Horizon. Each of
14 In an effort to prove that Respondent’s LDOs are supervisors, Respondent’s brief at footnote 10 states,
“The autopilot feature in no way diminishes the Officer of the Watch’s supervision of the helmsman, as the Officer of
the Watch must still instruct the helmsman on which course to take.” R. Br. at 23–24, fn. 10. Respondent also
referenced a link to a newspaper article involving a separate containership which has no relation to this case and was
not introduced in evidence. Id.
The General Counsel moved to strike the aforementioned language and the link in footnote 10 since neither
the statement nor the link are factual assertions that were introduced into evidence at trial.
Respondent objected to striking the language and the link to the newspaper article on the grounds that: (1)
the statement was a summary of witness’ testimony, (2) I should construe the statement as its argument, not a factual
assertion, and (3) I should take judicial notice of the link to the newspaper article. While I will construe Respondent’s
statement as its argument summarizing other witness’ testimony in the record about the autopilot feature (which
purportedly goes to bolter Respondent’s argument that the LDOs are supervisors), I agree with the General Counsel
that the link referencing another containership is irrelevant to the matters in this case. Moreover, the link to the
newspaper article was never introduced into the record at trial.
Accordingly, I will treat Respondent’s sentence in footnote 10 at page 24, beginning “The autopilot feature”
and ending “on which course to take” as its argument. The General Counsel’s motion to strike is denied on this point.
However, the link to the newspaper article and the article itself is struck.
JD(SF)-11-20
20
Respondent’s predecessors recognized the Union as the exclusive bargaining representative for the
LDOs.
More importantly, Respondent itself admitted that it recognized the Union as the exclusive
collective bargaining representative for the LDOs and it never gave any indication to the Union 5
that it believed the Union lost the majority support of its membership. Rather, I agree with counsel
for the General Counsel that “Respondent cannot now claim that the Union is not the Section 9(a)
representative of the LDOs simply because the Union never sought certification when it had
already been recognized by numerous employers, Respondent included.” See GC Br. at 26.
Accordingly, I find Respondent’s argument on this point is without merit and that the Board has 10
jurisdiction over this matter.
II. RESPONDENT VIOLATED SECTIONS 8(A)(5) AND (1) OF THE ACT BY FAILING TO BARGAIN IN
GOOD FAITH WITH THE UNION WHEN, SINCE SEPTEMBER 14, 2018, IT REFUSED TO CONTINUE
TO MEET FOR ARBITRATION PROCEEDINGS AT THE UNION’S HEADQUARTERS IN LINTHICUM 15
HEIGHTS, MARYLAND AS STATED IN THE PARTIES’ MEMORANDUM OF UNDERSTANDING
DATED JUNE 16, 1984.
A. Legal Standard
20
Section 8(a)(5) and 8(d) of the Act defines the obligation of employers to bargain
collectively as the “obligation . . . to meet at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employment.” The obligation to bargain in good
faith also extends to bargaining over the location of where the parties will meet and confer.
25
B. Analysis
Complaint paragraphs 10(a) – (c) charge that, since September 14, 2018, Respondent
stopped meeting, and failed to continue to meet, for all arbitration proceedings at the Union’s
headquarters in Linthicum Heights, MD as set forth in Section 36 of the parties’ 1984 MOU. I 30
agree.
The record clearly demonstrates that the parties’ 1984 MOU, which amended the parties’
CBA, governed where arbitration proceedings would be held: Linthicum Heights, MD. Although
Respondent argued that the 1984 MOU was inapplicable because it did not agree to it when it 35
acquired Horizon’s Hawaii trade lane business, the evidence shows otherwise.
In fact, Respondent knew about the parties’ 1984 MOU and was aware that arbitration
proceedings were to be held at the Union’s headquarters in Linthicum Heights, MD, because the
evidence shows Respondent received a copy of the 1984 MOU after it acquired Horizon’s Hawaii 40
trade lane business. In fact, Respondent attended two prior arbitrations at the Union’s headquarters
in Linthicum Heights, MD and never objected to the venue at that time. Furthermore, Respondent
complied with the terms of the 1984 MOU when it implemented certain pay and benefits protocols
within the 1984 MOU.
45
The fact is, Respondent does not get to pick and choose which provisions of the MOU it
favors while disfavoring other provisions it dislikes. Respondent knew all along that arbitrations
were to be held at the Union’s headquarters in Linthicum Heights, MD; and as such, when it failed
JD(SF)-11-20
21
to continue meeting and conferring with the Union there, it failed to bargain in good faith with the
Union in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
5
1. Respondent Sunrise Operations, LLC, a wholly owned subsidiary of the Pasha Group,
is an employer within the meaning of Sections 2(2), (6) and (7) of the Act.
2. By refusing to provide and/or unreasonably delaying in furnishing necessary and
relevant information to the Union, Respondent violated Sections 8(a)(5) and (1) of the Act.10
3. Respondent also violated Sections 8(a)(5) and (1) of the Act when it failed/refused to
bargain in good faith with the Union by refusing to continue to meet for arbitration proceedings at
the Union’s headquarters in Linthicum Heights, Maryland as stated in the parties’ Memorandum
of Understanding dated June 16, 1984.15
4. The unfair labor practices committed by Respondent affect commerce within the
meaning of Sections 2(6) and (7) of the Act.
REMEDY20
Having found that Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.
25
Having found that Respondent failed/refused to provide and/or unreasonably delayed in
furnishing necessary and relevant information to the Union, Respondent shall be required to
provide this information, as specified in the proposed Order below.
Since Respondent has not clearly delineated and, by its corporate ownership structure, has 30
confused the Union as to whether Respondent, Pasha Group and/or Pasha Hawaii operates as the
employer to the Union’s LDO members, Respondent shall post a notice at its offices and places of
business in Charlotte, NC and San Rafael, CA.
Respondent is also ordered forthwith to meet and confer/bargain in good faith with the 35
Union, as the exclusive representative of the employees in the appropriate unit concerning all terms
and conditions of employment, at arbitration proceedings at the Union’s headquarters in Linthicum
Heights, MD.
On these findings of fact and conclusions of law and on the entire record, I issue the 40
following recommended15
ORDER
Respondent Sunrise Operations, LLC, a wholly owned subsidiary of the Pasha Group, its
officers, agents, successors, and assigns, shall:45
15 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(SF)-11-20
22
1. Cease and desist from:
a) Failing/refusing to and/or unreasonably delaying in furnishing necessary and
relevant requested information made by the Union in order for the Union to perform 5
its duties as the exclusive collective-bargaining representative of the following unit
of employees:
Licensed Deck Officers (except where specifically otherwise provided, the
term “Licensed Deck Officers” whenever and wherever used in the Master 10
Collective Bargaining Agreement also includes the Master) on U.S. Flag
oceangoing vessels.
b) Failing/refusing to meet and confer with the Union for arbitration proceedings at
the Union’s headquarters in Linthicum Heights, MD in accordance with Section 36 15
of the parties’ 1984 MOU to the master Collective Bargaining Agreement.
c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a) Provide the Union with a copy of all documents responsive to its September 19,
2017 and March 2, 2018 requests 3 – 7, 11 – 15 and documents responsive to
requests 1 – 2 and 8 – 10 as to Pasha and Pasha Hawaii.25
b) Provide the Union with a copy of all documents responsive to its November 7, 2018
requests which asked for the sizing requirements for the LDO’s quarters on two
new containerships that were being built and/or operated by Respondent, Pasha
Group and/or Pasha Hawaii.30
c) Continue to meet and confer with the Union for arbitration proceedings at the
Union’s headquarters in Linthicum Heights, MD as set forth in Section 36 of the
parties’ 1984 MOU to their master Collective Bargaining Agreement unless
otherwise agreed to by the parties.35
d) Within 14 days after service by the Region, post at its Charlotte, North Carolina
and San Rafael, California places of business copies of the attached notice marked
“Appendix”16 in both English and Spanish. Copies of the notice, on forms provided
by the Regional Director for Region 20, after being signed by Respondent’s 40
authorized representative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email, posting on an
16 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
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD(SF)-11-20
23
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 Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the businesses involved 5
in these proceedings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current and former employees employed by Respondent at
any time since May 2, 2018.
10
Dated, Washington, D.C. May 11, 2020
_________________________________15
Lisa D. Ross
Administrative Law Judge
20
JD(SF)-11-20
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 fail/refuse to furnish or unreasonably delay in furnishing the Union with
relevant information it requests in order to perform its duties as the exclusive collective-
bargaining representative of the following unit of employees:
Licensed Deck Officers (except where specifically otherwise provided, the term
“Licensed Deck Officers” whenever and wherever used in the Master Collective
Bargaining Agreement also includes the Master) on U.S. Flag oceangoing vessels.
WE WILL NOT fail/refuse to meet and confer with the Union for arbitration proceedings at the
Union’s headquarters in Linthicum Heights, MD as set forth in Section 36 of the parties’ 1984
MOU to their master Collective Bargaining Agreement unless otherwise agreed to by the parties.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL provide the following requested information to the Union forthwith:
a) all documents responsive to its September 19, 2017 and March 2, 2018 requests 3
– 7, 11 – 15 and documents responsive to requests 1 – 2 and 8 – 10 as to Pasha and
Pasha Hawaii.
b) Provide the Union with a copy of all documents responsive to its November 7, 2018
requests which asked for the sizing requirements for the LDO’s quarters on two
new containerships that were being built and/or operated by Respondent, Pasha
Group and/or Pasha Hawaii.
WE WILL continue to meet and confer with the Union for all arbitration proceedings at the
Union’s headquarters in Linthicum Heights, MD as set forth in Section 36 of the parties’ 1984
MOU to their master CBA.
SUNRISE OPERATIONS, LLC,
a WHOLLY OWNED SUBSIDIARY OF
THE PASHA GROUP
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
t. 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.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m. Pacific Time
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-219534 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, (415) 356-5130