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

National Labor Relations Board - Board Decisions

May 20, 2020

369 N.L.R.B. 79 (N.L.R.B. 2020)

369 NLRB No. 79
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
International Shipping Agency, Inc., Marine Terminal
Services, Inc., and Truck Tech Services, Inc., a
single employer and Union De Empleados De
Muelles (UDEM), ILA 1901, AFL–CIO. Cases
24–CA–091723, 24–CA–104185, 12–CA–129846,
12–CA–133042, 12–CA–135453, 12–CA–135704,
12–CA–136480, 12–CA–142493, 12–CA–143597,
and 12–CA–144073
May 20, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On March 30, 2016, Administrative Law Judge Robert
A. Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent filed a
reply brief. The General Counsel filed exceptions and a
supporting brief, the Respondent filed an answering brief,
and the General Counsel filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Decision and Order, to amend the remedy, and to
adopt the judge’s recommended Order as modified and set
forth in full below.2
I. BACKGROUND
The International Shipping Agency, Inc. (Intership) is a
stevedoring company located in Bayamon, Puerto Rico. It
handles and warehouses stevedoring freight for various
clients, including Trailer Bridge, Inc. (Trailer Bridge). In-
tership has a long bargaining history with Union de
1 The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We have amended the judge's conclusions of law consistent with
our findings herein. In addition, we have amended the judge’s remedy
consistent with our legal conclusions, to provide for tax compensation in
accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB 101 (2014), and Social Security reporting consistent with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), to provide for
search-for-work and interim employment expenses consistent with King
Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in pertinent part 859 F.3d
23 (D.C. Cir. 2017), and to require that the notice be posted in English
and Spanish and read aloud to employees in both languages. We shall
Empleados de Muelles, Local 1901, AFL–CIO (the Un-
ion), which represents a unit of approximately 60 Intership
employees at its Bayamon stevedoring and marine termi-
nal. Intership’s top management includes President David
Segarra and Chief Financial Officer Maria Caraballo-
Gaud (Caraballo), who held the same positions for
wholly-owned subsidiaries Marine Terminal Services,
Inc. (MTS) and Truck Tech Services, Inc. (TTS). MTS
repaired and refurbished containers that hold freight, chas-
sis upon which containers are placed for transport, and re-
frigerated containers. TTS repaired stevedoring equip-
ment and vehicles. Luiz Ruiz was MTS’s general man-
ager. Enrique Ivan Sosa was TTS’s general manager. The
judge found that, while MTS and TTS also served some
outside clients, they mainly served Intership. On October
19, 2012, Intership closed MTS and discharged all of its
employees. On April 26, 2013, Intership closed TTS and
discharged all of its employees. Most of the complaint
allegations in this case relate to those closures and dis-
charges.
In the absence of exceptions, we adopt a number of the
judge’s findings. Specifically, we adopt the judge’s find-
ings that Intership, MTS, and TTS constituted a single em-
ployer; that the Respondent violated Section 8(a)(1) of the
Act by interrogating employees on several occasions, by
repeatedly threatening employees with discharge, job loss,
and plant closure in the event of unionization, by soliciting
employees to vote against the Union, by creating an im-
pression that employees’ union activity was under surveil-
lance, and by surveilling employees’ union activity on
several occasions; and that the Respondent violated Sec-
tion 8(a)(5) by unilaterally changing its procedure for dis-
tributing Intership unit employees’ vacation checks.3
With respect to issues contested before us, we agree
with the judge, for the reasons he states, that the Respond-
ent violated Section 8(a)(1) when two supervisors grabbed
and pushed an employee because of his protected activity.
modify the judge’s recommended Order to conform to the Board’s find-
ings and standard remedial language, and in accordance with our recent
decision in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020).
We shall substitute a new notice to conform to the Order as modified.
3 Regarding the Respondent’s change in the vacation check distribu-
tion system, the judge found, and the General Counsel does not dispute,
that it is unnecessary to order make-whole relief because there is no evi-
dence that employees suffered any monetary losses as a result of this
change. Further, in the absence of exceptions, we adopt the judge's find-
ing that it is unnecessary to pass on whether the Respondent’s change to
its vacation check distribution policy also violated Sec. 8(a)(3).
The complaint additionally alleges that the Respondent violated Sec.
8(a)(5) by assigning duties that had previously been performed by Inter-
ship unit welders to mechanics in the unit. Although the judge’s analysis
is somewhat unclear, it appears that he dismissed this allegation and, in
the absence of exceptions, we adopt his dismissal.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition, and also for the reasons stated by the judge,
we agree with his dismissals of allegations that the Re-
spondent violated Section 8(a)(5) by changing Intership
maintenance workers’ hours and by changing its auto
checker procedures.4 Finally, for the reasons set forth be-
low, we find, in agreement with the judge, that the Re-
spondent violated Section 8(a)(3) and (1) by ceasing oper-
ations and discharging the employees at the MTS and TTS
facilities,5 but we find, contrary to the judge, that the Re-
spondent also violated Section 8(a)(3) and (1) by suspend-
ing Intership union steward Efrain Gonzalez-Andino
(Gonzalez).6
II. CLOSURE OF MTS AND TTS
A. Background
On September 20, 2012,7 the Union filed a petition in
Case 24–RC–089605 seeking to represent a unit of MTS
employees. The judge found, and the Respondent does not
contest, that in the month leading up to the ensuing Board
election, the Respondent repeatedly violated Section
8(a)(1) by interrogating and threatening employees, solic-
iting antiunion votes, creating an impression that employ-
ees’ union activity was under surveillance, and surveilling
employees’ union activity. Specifically, MTS General
Manager Ruiz asked an employee if he had spoken to the
Union, asked another employee whether he had heard any
union rumors and would identify union supporters, and
asked a third employee who among the employees sup-
ported the Union. Ruiz also told an employee that “if the
Union ever came into MTS, the gates would close.” Other
employees credibly testified that Ruiz made similar
threats to them. Another employee testified that Ruiz told
several workers that if he learned who signed union cards,
he would suspend them. Ruiz additionally solicited an
employee to vote against the Union and told the employee
to tell others to “side with the Company.” Lastly, Ruiz
told an employee that the Respondent would learn who
signed authorization cards on behalf of the Union.
The Union won the election on October 17 by a vote of
11-2, and on October 19 the Respondent closed MTS. In-
tership and MTS President Segarra sent discharge letters
4 We understand the judge’s analysis regarding the auto checker pro-
cedures to cover the complaint allegations that the Respondent violated
Sec. 8(a)(5) by unilaterally changing its 8-hour pay guarantee for auto
checkers and by unilaterally changing its policy of maintaining a desig-
nated auto checker. Although the General Counsel excepts to the judge’s
findings regarding the auto checker procedures, in his supporting brief
the General Counsel makes arguments only as to the change to the 8-
hour pay guarantee. For the reasons stated by the judge, we adopt his
dismissal of the allegation covering the change to the 8-hour pay guar-
antee and, in the absence of exceptions, we adopt his dismissal of the
allegation regarding the change to the designated auto checker policy.
5 Because we find that the Respondent violated Sec. 8(a)(3) by dis-
charging the MTS and TTS employees, we find it unnecessary to address
to all the MTS employees stating that MTS had perma-
nently closed as of October 19 and asserted that the clo-
sure was for financial reasons. Before the closure, MTS
employees serviced Intership’s chassis and equipment.
Following the closure of MTS, Intership began having at
least some of its chassis and equipment repaired by an out-
side company, and the Respondent sold MTS’s equipment
and leased the facility to a third party.
The judge found, and the Respondent does not contest,
that after MTS’s closure, the Respondent repeatedly vio-
lated Section 8(a)(1) by threatening TTS employees. Spe-
cifically, the judge found that TTS Operations Manager
Ernesto Davila called TTS employees to a meeting and
warned them that MTS closed because of the Union.
Davila told the employees that MTS closed because “the
employees became part of a union and that was not good
for the [c]ompany’s interests.” Davila further threatened
that “[I]f the [TTS] employees unionize[d], . . . what hap-
pened to MTS, the same thing [would happen] to them,
they would be fired . . . .” The judge also credited testi-
mony from several TTS employees that, between Novem-
ber 2012 and February 2013, TTS General Manager Sosa
and TTS Special Projects Manager Noel Lopez Soto re-
peated these and similar threats to employees. In this re-
gard, the judge found, and the Respondent does not con-
test, that the Respondent violated Section 8(a)(1) when
these officials threatened that MTS closed because of the
Union, TTS would also close if it unionized, and TTS em-
ployees would be out of a job if they unionized. The judge
also credited the testimony of Darren Ryan Openhiemer
(Ryan), a TTS supervisor at the time, that Sosa and Davila
told him MTS closed because it unionized. Ryan related
that he was convinced that TTS employees would union-
ize, and he recalled employees telling him that they were
talking to the Union about organizing. He said that he re-
layed these discussions to Sosa in September in order to
offer him a chance to remedy employees’ concerns before
the employees unionized. Ryan also 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.
the judge’s findings that the discharges and closing of MTS violated Sec.
8(a)(5) as well. In concluding that the discharges of the MTS and TTS
employees violated Sec. 8(a)(3), we do not find that the Respondent sub-
contracted all the work formerly performed by MTS and TTS. For the
purposes of the discussion below, it is enough to find, as we do, that the
record supports finding at least some of the work previously performed
by MTS and TTS for Intership continued to be performed by third parties
after the closures of MTS and TTS. The Respondent does not contest
this.
6 Member Emanuel disagrees with the majority on the sole issue of
the majority’s finding that the Respondent’s suspension of Gonzalez vi-
olated the Act, as explained below.
7 All dates are in 2012 unless otherwise noted.
INTERNATIONAL SHIPPING AGENCY, INC. 3
On April 26, 2013, the Respondent closed TTS and dis-
charged its employees. As with MTS, the Respondent
stated that the decision to close TTS was for “financial
reasons.” Before the closing of TTS, the TTS employees
serviced Intership’s Kalmars equipment. Following the
closure of TTS, the Respondent began having that equip-
ment repaired by a third party. At the time of the hearing,
the TTS facility was vacant and was being marketed for
sale.
The judge, applying the analysis set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), concluded that the Respondent violated Section
8(a)(3) and (1) of the Act by closing MTS and TTS, dis-
charging all of the MTS and TTS employees, and subcon-
tracting the functions previously performed by MTS and
TTS to outside companies. With respect to both MTS and
TTS, the judge found that the General Counsel met his in-
itial burden of proving that the Respondent’s actions in
connection with the closures of MTS and TTS were dis-
criminatorily motivated by employees’ protected union
activity. Turning to the Respondent’s defense burden, the
judge addressed the Respondent’s assertion that the deci-
sions to close MTS and TTS and to discharge the employ-
ees were based on the Respondent’s financial problems
and coincided with loss-of-business events that allegedly
meant Intership could no longer continue to afford absorb-
ing the cost of its subsidiaries’ losses. The judge credited
the testimony of the Respondent’s officials, supported by
substantial documentary evidence, regarding poor fiscal
performance and ongoing losses for all three companies,
but he discredited their testimony about Intership’s finan-
cial rationale for closing MTS and TTS when it did. He
found this testimony “unpersuasive,” largely because
MTS and TTS had been accumulating losses that Intership
had covered for some time, and the Respondent did not
close MTS and TTS until the employees decided to union-
ize (in the case of MTS) or were considering unionization
(in the case of TTS).8
We agree with the judge that Wright Line is the appli-
cable standard for assessing the lawfulness of the closures
of MTS and TTS and that the Respondent’s actions in con-
nection with those closures violated Section 8(a)(3). In
response to arguments made in the Respondent’s excep-
tions, we clarify below our basis for these findings.
8 Although the judge did not specifically reference Caraballo’s testi-
mony that she recommended the closure of MTS upon notice on October
10 that Intership would no longer be providing services to client Medi-
terranean Shipping Company (MSC), it is implicit that he did not credit
her testimony that this event caused MTS’s closure 9 days later. Simi-
larly, it is implicit that he also discredited testimony that the closure of
B. MTS’s Closure
In exceptions, the Respondent initially contends that the
judge erred in analyzing this closure under Wright Line.
In the Respondent’s view, the action complained of here
amounts to a plant closure and must be assessed under
Textile Workers Union v. Darlington Mfg. Co., 380 U.S.
263 (1965). Under that case, an employer may terminate
its entire business for any reason it pleases—even anti-
union animus—without violating the Act, and the partial
closing of a business violates Section 8(a)(3) only if (i) it
is motivated by a purpose to chill unionism in any of the
employer’s remaining plants, and (ii) the employer rea-
sonably might have foreseen that the partial closing would
likely have that effect. See id. at 273–275. The Darling-
ton analysis does not apply, however, to cases in which
the employer’s action is less than a partial closing. “Both
discriminatory relocation of work—the ‘runaway shop’
gambit—and discriminatory subcontracting were explic-
itly distinguished from partial closings in Darlington, and
have been found consistently to violate Section 8(a)(3)
when motivated by antiunion animus.” Lear Siegler, Inc.,
295 NLRB 857, 860 (1989).
Consistent with Darlington itself and Board precedent,
we find that the Darlington analysis does not apply here
because the MTS closure was not a partial closing.9 To
the contrary, the record shows that at least some of the
work MTS employees had performed for Intership contin-
ued to be performed by a third party following the closure.
The facts of this case are similar to those present in Mo-
nongahela Steel Co., 265 NLRB 262 (1982). There, Mo-
nongahela Steel and Youngstown Steel constituted a sin-
gle employer enterprise, and Monongahela Steel acted as
a supplier for Youngstown Steel. In response to the Mo-
nongahela employees’ unionization efforts, the respond-
ent closed Monongahela Steel and began acquiring the
materials previously supplied by Monongahela to
Youngstown Steel from an outside source. The Board
found that this action was “analogous” to the situations
outlined by the Supreme Court “‘where a department is
closed for antiunion reasons but the work is continued by
independent contractors.’” Id. at 270 (quoting Darlington,
supra at 272–273 & fn. 16). We find that the same result
is warranted here. Intership and MTS, along with TTS,
constituted a single employer enterprise. Prior to the clo-
sure of MTS, the MTS employees serviced Intership’s
chassis and equipment. Following the closure of MTS,
TTS was precipitated by Intership’s loss of a client shortly prior to that
closure.
9 Although the Respondent’s exceptions do not specifically assert a
Darlington defense for the closure of TTS, our rationale would apply as
well to reject such a defense.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Intership still had a need for chassis repair and began hav-
ing at least some of its chassis and equipment repaired by
an outside party. Thus, contrary to the Respondent’s as-
sertions, the closure of MTS was akin to the departmental
closures exempted from the reach of Darlington by the
Supreme Court and, as a result, Darlington does not ex-
cuse the Respondent’s actions in this case. Accordingly,
Wright Line applies and the focus is on whether the Gen-
eral Counsel has proved that the Respondent’s union ani-
mus motivated the closure of MTS and discharge of its
employees, without inquiry into whether the closure was
motivated by a desire to chill unionism among Intership
or TTS employees and would foreseeably have that ef-
fect.10
In the alternative, the Respondent claims in exceptions
that the judge erred in finding that it failed to meet its re-
sponsive burden under Wright Line of proving that it
would have closed MTS when it did even in the absence
of union activity.11 The Respondent contends that it
closed MTS for “financial reasons.” As previously stated,
the judge credited testimony from the Respondent’s wit-
nesses regarding the financial losses suffered by both
MTS and Intership, but he discredited their testimony that
Respondent relied solely on financial reasons when it de-
cided to close MTS. We find no basis in the record for
disturbing the judge’s credibility findings. Contrary to the
Respondent ’s assertion, the judge adequately addressed
and rejected the Respondent’s claim that Intership could
no longer afford to finance MTS’s continuing losses. In
assessing the Respondent’s closure rationale, we do not
question its assertions regarding MTS or Intership’s finan-
cial problems or that such financial problems could have
constituted a legitimate business reason for closing MTS
at some point in time. However, it is well established that
“[a]n employer cannot simply present a legitimate reason
for its action but must persuade by a preponderance of the
evidence that the same action would have taken place even
in the absence of the protected activity.” W. F. Bolin Co,
311 NLRB 1118, 1119 (1993), petition for review denied
70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th
Cir. 1996). Further, the Respondent’s burden under
Wright Line is to show “that it would have done what it
did, when it did, in the absence of the [employees’] union
activities.” We Can, Inc., 315 NLRB 170, 172 (1994). We
agree with the judge that the Respondent has not met this
burden.
10 We therefore do not need to address the General Counsel’s argu-
ment in cross-exceptions that a violation should be found even under a
Darlington analysis.
11 The Respondent does not except to the judge’s finding that the
General Counsel met his initial Wright Line burden of proving that the
To begin, the Respondent’s extensive unlawful opposi-
tion towards the MTS employees’ organizing campaign
undermines its assertion that it closed MTS solely because
of the Respondent’s financial problems. Most notably,
that misconduct included repeated threats that MTS would
close if the MTS employees voted to unionize. Those
threats were realized a mere two days after the Union won
the election. Further, while the judge credited testimony,
supported by documentary evidence, that both MTS and
Intership were experiencing financial losses when MTS
closed, he pointed out that MTS had been experiencing fi-
nancial losses for years. He also noted that the Respond-
ent failed to show that Intership saved any money by clos-
ing MTS. He therefore discredited the testimony of the
Respondent’s officials that they decided to close MTS
when they did because Intership could no longer afford to
finance its subsidiary’s losses. This credibility resolution
implicitly included rejecting Caraballo’s claim that confir-
mation of Intership’s loss of a client’s business on October
10 motivated the decision to close MTS. Finally, it is im-
possible to reconcile the claims that financial distress mo-
tivated this closure with the many subsequent threats to
TTS employees that MTS closed as a result of unioniza-
tion.12 In these circumstances, we find that the Respond-
ent has failed to establish that it would have closed MTS
at the time that it did even absent the employees’ union
activity.
C. TTS’s Closure
With certain exceptions discussed below, the Respond-
ent’s closure of TTS largely mirrors its actions in connec-
tion with the closure of MTS. As a result, consistent with
the discussion above regarding MTS, we find that the Re-
spondent violated Section 8(a)(3) by closing TTS and dis-
charging those employees. With respect to the General
Counsel’s initial burden under Wright Line, the judge
found, and we agree, that the General Counsel met his bur-
den of showing that the TTS employees’ union activity
was a motivating factor in the Respondent’s closure of
TTS and discharge of the TTS employees. The Respond-
ent disputes this but does so only with respect to its con-
tention that the General Counsel failed to prove that TTS
employees were engaging in union activity or considering
doing so, and that the Respondent had knowledge of such
activity. In this regard, the judge relied on Ryan’s credited
testimony that TTS employees were discussing unioniza-
tion and that Ryan told the Respondent’s officials they
were doing so. Although the Respondent purportedly
MTS closing was motivated by union animus, as demonstrated by the
numerous uncontested findings of unfair labor practices, notably includ-
ing threats of plant closure.
12 Inasmuch as the three companies are a single employer, the threats
by TTS officials are attributable to Intership as well.
INTERNATIONAL SHIPPING AGENCY, INC. 5
does not challenge the judge’s credibility finding regard-
ing Ryan, it contends that Ryan’s testimony is outweighed
by other record evidence indicating that the Union was not
seeking to organize TTS employees.
We find no merit in this argument, which distorts the
basis of the judge’s finding. It is undisputed that the Un-
ion was not attempting to organize TTS employees. That
fact does not contradict the credited testimony of Ryan
that employees were discussing the possibility of unioni-
zation among themselves and that the Respondent’s offi-
cials were aware of and concerned about potential organ-
izing. Further, it is undisputed, as the judge found, that
between November 2012 and February 2013, Davila,
Lopez, and Sosa repeatedly told TTS employees that (1)
MTS closed because of the Union, and (2) if TTS union-
ized, it would close as well. There is no apparent reason
why these threats would be made if the Respondent did
not harbor a concern about unionization efforts by TTS
employees. Moreover, although the Union was not seek-
ing to organize TTS employees as a separate unit, it was
protesting that certain TTS employees were performing
what should have been Intership bargaining unit work, and
at one time in early 2013 it proposed that these employees
become part of the existing bargaining unit.
In sum, the evidence is more than sufficient to meet the
General Counsel’s initial burden of proving the Respond-
ent’s knowledge or belief that TTS employees were in-
volved in union activities.13 Accordingly, we reject the
Respondent’s argument that the General Counsel failed to
meet his initial Wright Line burden of proof. In exceptions
summarily challenging the judge’s rejection of its Wright
Line defense, the Respondent asserts, as it did with the
MTS closure, that it closed TTS for financial reasons. For
the same reasons as set forth above, however, we find that
the Respondent failed to meet its burden of proving that it
actually would have closed TTS when it did even absent
the employees’ union activity. It relies on discredited tes-
timony that in any event fails to persuade that the timing
of the closure was motivated solely by financial consider-
ations, particularly Intership’s additional loss of business
proximate to the closure. Particularly in light of the TTS
officials’ repeated unlawful threats of plant closure made
in early 2013, we agree with the judge that the Respondent
13 Contrary to the Respondent’s argument in exceptions, proof of an
employer’s belief that its employees are engaged in protected activities,
as opposed to proof of knowledge that they actually are so engaged, is
sufficient to meet the Wright Line burden. See, e.g., Hyundai Motor
Mfg., Alabama, LLC, 366 NLRB No. 166, slip op. at 2 fn. 7 (2018) (“Ap-
plying Wright Line, we reach the same conclusion that the Respondent
unlawfully discharged the employees because it believed they engaged
in protected concerted activity.”).
14 In exceptions, the General Counsel argues that the judge erred by
failing to find that the Respondent did not meet its Wright Line defense
has failed to persuade that it would have closed TTS when
it did even in the absence of known and suspected union
activities and the Union’s bargaining unit work claims.
III. GONZALEZ’ SUSPENSION
On May 30, 2014, Efrain Gonzalez-Andino (Gonzalez),
an Intership employee and a union steward, observed
Reynaldo Ortega Jimenez (Ortega), a manager for Trailer
Bridge, one of Intership’s clients, performing bargaining
unit work. In his role as shop steward, Gonzalez ap-
proached Ortega and inquired about the work Ortega was
performing. After first ignoring Gonzalez, Ortega re-
sponded with profanity, and Gonzalez replied with profan-
ity as well. As a result of this interaction, Gonzalez re-
ceived a 3-day suspension. On July 9, 2014, Jose Garcia
Ortiz (Garcia), Intership’s vice president of terminal oper-
ations, issued a memo upholding the suspension. In the
memo, the Respondent cited (1) Gonzalez’ violation of its
client interaction rule, which prohibits employees from in-
teracting with clients and instructs them that any allega-
tion or claim emerging from a work area must be ad-
dressed directly to Intership management, and (2) his use
of profanity toward a client’s manager.
Applying Wright Line, supra, the judge dismissed the
allegation that the Respondent’s suspension of Gonzalez
violated Section 8(a)(3). In so doing, the judge found that
the General Counsel met his initial burden of showing that
Gonzalez’ discipline was motivated by his union activity.
The judge found, however, that the Respondent met its de-
fense burden of proving that it would have suspended
Gonzalez even absent his union steward status because he
violated the Respondent’s rule prohibiting client interac-
tion and used profanity towards a client. For the reasons
set forth below, we find merit in the General Counsel’s
exceptions contending that the judge erred in finding that
the Respondent met its Wright Line burden.14
We acknowledge that Gonzalez violated the Respond-
ent’s no-client-contact rule, but that fact does not dictate a
finding that the Respondent sustained its Wright Line de-
fense burden. As the Board long ago stated, “employees
engaged in [protected] concerted activity generally do not
lose the protective mantle of the Act simply because their
activity contravenes an employer’s rules or policies.”15
And as the Board recently explained in Boeing, “an
burden. He also argues that the judge erred by failing to apply Atlantic
Steel Co., 245 NLRB 814, 816 (1979), to determine the lawfulness of
Gonzalez’ suspension. We agree with the judge that Wright Line is the
proper framework for determining whether the Respondent violated Sec.
8(a)(3) by suspending Gonzalez.
15 Louisiana Council No. 17, AFSCME, AFL–CIO, 250 NLRB 880,
882 (1980); see also Valley Hospital Medical Center, 351 NLRB 1250,
1254 (2007), enfd. 358 Fed.Appx. 783 (9th Cir. 2009).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer may lawfully maintain a particular rule, not-
withstanding some possible impact on a type of protected
Section 7 activity, even though the rule cannot lawfully be
applied against employees who engage in NLRA-
protected conduct.” 365 NLRB No. 154, slip op. at 16.16
Here, we recognize that the Respondent’s client contact
rule serves a legitimate purpose. Further, it could be the
basis for disciplining Gonzalez if his contact with Ortega
did not involve Section 7 activity. However, the Respond-
ent relied on a facially valid client interaction rule to dis-
cipline Gonzalez for engaging in a steward’s protected un-
ion activity of policing the parties’ agreement to ensure
that bargaining unit work was being performed by unit
employees. Contrary to the judge’s analysis, discrimina-
tion against this protected activity, not against Gonzalez’
status as a union steward, is at issue here. In these circum-
stances, Gonzalez’ purported violation of the client inter-
action rule cannot stand as a lawful, legitimate reason for
his suspension.17
16 There is no allegation that the Respondent violated Sec. 8(a)(1) by
maintaining the client interaction rule.
17 Notwithstanding Gonzalez’ protected activity, our dissenting col-
league finds that the Respondent was justified in disciplining Gonzalez
for violating the client interaction rule, just as it would have done with
any other employee who violated the rule. Even assuming our colleague
is correct that the Respondent could have satisfied its Wright Line de-
fense burden by showing that Gonzalez’ 3-day suspension was consistent
with discipline issued to other employees for violations of the client in-
teraction rule that did not involve protected activity, we find that the Re-
spondent failed to make such a showing here. Garcia’s credited testi-
mony, relied on by our colleague, that there were no exceptions to the
Respondent’s client interaction rule does not establish that the Respond-
ent proved it would have imposed the same discipline in the absence of
his protected union activity. The Respondent has not shown either that
the rule itself mandated suspension as punishment for infractions of the
rule or that it consistently suspended employees who violated the rule.
The judge’s opinion that the suspension was “reasonable in magnitude”
cannot substitute for such proof. Our dissenting colleague is mistaken to
the extent he suggests that the General Counsel bears the burden of prov-
ing disparate treatment even if he has otherwise met the initial Wright
Line burden. Further, the judge erred in finding that a letter from the
Union’s president to Intership unit employees (GC Exh. 51) not only
acknowledged the validity of the client contact rule but also “did not
challenge its disciplinary reach.” The letter made no mention of Gonza-
lez’ suspension, and it is obvious from the charge filed by the Union on
his behalf that it does challenge the disciplinary reach of the rule as a
basis for suspending him. In these circumstances, we find, contrary to
our colleague, that the Respondent has not met its burden of proving that
it would have suspended Gonzalez for violating the no-client-contact
rule even absent his protected activity.
18 The circumstances leading to Gonzalez’ suspension distinguish this
case from PAE Applied Technologies, LLC, 367 NLRB No. 105 (2019),
relied on by our dissenting colleague. There, employee and union officer
Poulos engaged in protected union activity in a conversation with the
respondent’s manager, and then, after the protected exchange was over,
accosted a customer in a rude and disrespectful manner. Id., slip op. at
4–5. The Board found that Poulos was lawfully disciplined for a con-
frontation with a customer that was “unprotected from the outset.” Id.,
The only remaining justification proffered for Gonza-
lez’ discipline is his use of profanity. While we do not
condone Gonzalez’ use of profanity toward a client, we
observe that the Respondent does not argue it would have
disciplined Gonzalez for the profanity alone. Rather, the
Respondent emphasizes that “the record as a whole shows
that the disciplinary action was taken because Mr. Gonza-
lez ignored a longstanding work-rule sanctioned by the
Union.” We thus find, on the facts of this case, that the
Respondent has failed to prove that it would have sus-
pended Gonzalez for his use of profanity even absent his
protected activity. See, e.g., Oakes Machine Corp., 288
NLRB 456, 458 (1988) (where both lawful and unlawful
grounds motivated respondent, respondent could not pre-
vail under Wright Line without showing that the lawful
reason alone would have prompted its actions), enf.
granted in part, denied in part on other grounds 897 F.2d
84 (2d Cir. 1990).18 Accordingly, we find that the Re-
spondent’s suspension of Gonzalez violated Section
8(a)(3).19
slip op. at 5 fn. 11. Here, in contrast, Gonzalez’ encounter with a client
was protected from the outset, as Gonzalez initiated the conversation in
his role as union steward to police the collective-bargaining agreement.
And although the encounter ended with an exchange of profanities, the
Respondent does not contend that it would have suspended Gonzalez for
that alone, as explained above. For these reasons, we find, contrary to
our colleague, that PAE is distinguishable.
19 Contrary to his colleagues, Member Emanuel would affirm the
judge’s conclusion that the Respondent did not violate Sec. 8(a)(3) and
(1) by suspending Gonzalez. Even assuming that the General Counsel
met his initial burden of demonstrating that Gonzalez’ suspension was
motivated by antiunion animus, the Respondent successfully rebutted
that case by showing it would have disciplined Gonzalez in any event.
As the judge found, Gonzalez was disciplined for violating Respond-
ent’s widely known rule prohibiting employees working at the client’s
facility from bringing any work grievances directly to the client’s super-
visors (rather than the Respondent). The “no client contact” rule, the va-
lidity of which is challenged neither by the Union nor the majority, was
designed to prevent conflicts precisely like the one that occurred between
Gonzalez and his client’s supervisor Ortega at the client’s Trailer Bridge
facility. Gonzalez compounded the violation by interacting with Ortega
in a rude and vulgar manner. Ortega complained to Garcia, who inves-
tigated the incident and issued the suspension, which citied both the no-
client-contact rule and the vulgar nature of Gonzalez’ behavior. In Mem-
ber Emanuel’s view, the judge correctly concluded that the suspension
was lawful. See PAE Applied Technologies, LLC., 367 NLRB No. 105,
slip op. at 5 (2019). (“When an employee acts irresponsibly towards a
customer, particularly in violation of a work rule explicitly prohibiting
‘serious improper behavior or discourtesy toward a Customer,’ it is
within the purview of the employer to discipline the employee for his or
her inappropriate behavior.”)
Member Emanuel also disagrees with the majority’s assertion that the
Respondent seized on the rule violation to punish Gonzalez for engaging
in a steward’s protected activity of policing the contract. While a union
steward’s ability to police the collective-bargaining agreement for poten-
tial violations is protected under the Act, “the Act is not a shield protect-
ing employees from their own misconduct or insubordination.” Guard-
ian Ambulance Service, 228 NLRB 1127, 1131 (1977). Thus, the Re-
spondent was entitled to discipline Gonzalez for directly and
INTERNATIONAL SHIPPING AGENCY, INC. 7
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 7(a):
“a. Ceasing operations at the MTS facility and dis-
charging the MTS employees because of the MTS em-
ployees’ union or other protected activities.”
2. Substitute the following for Conclusion of Law 7(b):
“b. Ceasing operations at the TTS facility and discharg-
ing the TTS employees because of the TTS employees’
union or other protected activities.”
3. Insert the following as Conclusion of Law 7(c):
“c. Suspending Efrain Gonzalez-Andino for his pro-
tected activity.”
4. Omit Conclusion of Law 8(b).
AMENDED REMEDY
Regarding the Respondent’s closures of MTS and TTS
and the discharge of all the employees for discriminatory
reasons, the Board’s usual practice in such circumstances
is to order a return to the status quo ante—that is, to re-
quire the employer to restore the operations as they existed
before the discrimination, unless the employer can show
that such a remedy would be unduly burdensome, and to
reinstate the employees. See We Can, Inc., 315 NLRB at
174 (citing Lear Siegler, Inc., 295 NLRB at 861). The
judge found, and we agree, that in the circumstances of
this case, an order requiring the Respondent to reopen
MTS and TTS would be unduly burdensome and thus not
appropriate.
Accordingly, we find that the Respondent’s unfair labor
practices will be sufficiently remedied by a full make-
whole order covering the employees of the closed opera-
tions. See Purolator Armored, Inc., 268 NLRB 1268
(1984), enfd. 764 F.2d 1423 (11th Cir. 1985). We shall
thus order the Respondent to make whole all MTS and
TTS employees who were terminated as a result of the Re-
spondent’s discriminatory decisions to close those facili-
ties. We shall require the Respondent to offer each of the
discriminatorily terminated MTS and TTS employees re-
instatement to any position in its existing operations that
he or she is capable of filling, giving preference to the dis-
criminatees in order of seniority. In the event of the
aggressively approaching the Respondent’s client in violation of the
workplace rule forbidding such interaction, just as it would have disci-
plined any other employee engaged in such misconduct. See, e.g., Postal
Service, 350 NLRB 441, 445 (2007) (employee’s misconduct while per-
forming union steward duties “does not prevent the Respondent from
taking the same action. . . that it would have taken toward any other em-
ployee committing similar insubordinate acts.”). Further, there is no ev-
idence that the Respondent applied the rule disparately to single out Gon-
zalez. When asked if there was any exception to rule forbidding direct
client contact, Garcia, whom the judge credited, testified, “No. None,
whatsoever.” Finally, in policing the collective-bargaining agreement,
Gonzalez certainly had other options available, including simply record-
ing written notes on his observations at Trailer Bridge, and reporting this
unavailability of jobs sufficient to permit immediate rein-
statement of all the discriminatees, we shall require the
Respondent to place those discriminatees for whom jobs
are not now available on a preferential hiring list for any
future vacancies that may occur in positions at any of the
Respondent’s operations in Puerto Rico that said discrim-
inatees are capable of filling. See id. at 1269; see also Real
Foods Co., 350 NLRB 309, 315 (2007).
In addition, we shall order the Respondent to make
whole affected employees for any loss of wages and other
benefits they may have suffered as a result of the Respond-
ent’s decisions.20 Backpay shall be computed in accord-
ance with F.W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). We shall also
order Respondent to compensate the affected employees
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional Di-
rector 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 awards to the appropriate
calendar years for each employee. See AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016).
In accordance with King Soopers, Inc., 364 NLRB No.
93 (2016), enfd. in pertinent part 859 F.3d 23 (D.C. Cir.
2017), we shall also order the Respondent to compensate
the affected employees for their search-for-work and in-
terim employment expenses regardless of whether those
expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated sepa-
rately from taxable net backpay, with interest at the rate
prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra. We
shall also order the Respondent to remove from its files
any reference to the MTS and TTS employees’ unlawful
discharges and to notify them in writing that this has been
done and that the unlawful discharges will not be used
against them in any way.
In addition, having found that the Respondent violated
Section 8(a)(3) and (1) by suspending Efrain Gonzalez-
perceived violation directly to the Respondent. Accordingly, Member
Emanuel would adopt the judge’s dismissal of the 8(a)(3) violation re-
garding Gonzalez’ allegedly unlawful suspension.
20 We leave to the compliance stage of this proceeding the determina-
tion of which MTS and TTS employees are entitled to reinstatement and
backpay. See, e.g., Monongahela Steel, supra, 265 NLRB at 262. At
that time, the Respondent will have the opportunity to prove that any of
the employees terminated as a result of the MTS or TTS closures would
have been lawfully terminated subsequent to the discriminatory closures
and discharges. See, e.g., Intermet Stevensville, 350 NLRB 1270, 1275
fn. 21 (2007) (allowing respondent to offer evidence at compliance stage
to mitigate backpay if employees would have been lawfully laid off or
reassigned).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Andino, we shall order the Respondent to make him whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against him. Backpay shall be
computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra. In addition, we shall order the Respondent
to compensate Efrain Gonzalez-Andino for any adverse
tax consequences of receiving a lump-sum backpay
award, 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 year. AdvoServ
of New Jersey, Inc., supra. We shall also order the Re-
spondent to remove from its files any reference to Efrain
Gonzalez-Andino’s unlawful suspension and to notify him
in writing that this has been done and that the unlawful
suspension will not be used against him in any way.
Further, consistent with the General Counsel’s requests
in his exceptions, we shall order the Respondent to post
the notice in English and Spanish. The Board has held that
bilingual notices are proper where a “majority” of employ-
ees primarily speak a language other than English. Ber-
gensons Property Services, 338 NLRB 883, 883 (2003).
Given that many of the witnesses at the hearing spoke
Spanish and testified through an interpreter, we agree that
a bilingual notice is proper. We also find merit in the Gen-
eral Counsel’s exception to the judge’s failure to order the
Respondent to read the remedial notice aloud to employ-
ees. Although notice reading is an extraordinary remedy,
we believe it is warranted here.
As we have found, the Respondent’s officials unlaw-
fully closed both MTS and TTS and discharged all em-
ployees working for those companies. They also unlaw-
fully suspended a union steward and committed numerous
violations of Section 8(a)(1), including repeated serious
threats of plant closure and discharge by several of the Re-
spondent’s senior officials. Collectively, these unlawful
actions demonstrate a widespread and serious corporate
disdain of employees’ Section 7 rights. In these circum-
stances, we find that a public reading of the remedial no-
tice to employees is an “‘effective but moderate way to let
in a warming wind of information and, more important,
reassurance’” to the bargaining unit employees that their
rights under the Act will not be violated in the future. See
United States Service Industries, 319 NLRB 231, 232
(1995) (quoting J.P. Stevens & Co. v. NLRB, 417 F.2d
533, 540 (5th Cir. 1969)), enfd. 107 F.3d 923 (D.C. Cir.
1997).
We shall accordingly order the Respondent to hold a
meeting or meetings during working hours at its
Bayamon, Puerto Rico facility, scheduled to ensure the
widest possible attendance of employees, at which the ap-
propriate notice is to be read to employees in English and
in Spanish by a responsible management official of the
Respondent in the presence of a Board agent and a union
representative if the Region or the Union so desires, or, at
the Respondent’s option, by a Board agent in the presence
of a high-ranking responsible management official and, if
the Union so desires, a union representative. Further, in
view of the fact that the Respondent’s MTS and TTS fa-
cilities are closed, we shall order the Respondent to mail a
copy of the attached notice to the Union and to the last
known addresses of its former MTS and TTS employees
in order to inform them of the outcome of this proceeding.
Last, the judge found, no party excepts, and we agree that
a broad cease-and-desist order should be issued.
ORDER
The National Labor Relations Board orders that the Re-
spondents, International Shipping Agency, Inc., Marine
Terminal Services, Inc., and Truck Tech Services, Inc., a
single employer, Bayamon, Puerto Rico, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion or other protected concerted activities.
(b) Threatening employees with discharge if they en-
gage in union or other protected concerted activities.
(c) Threatening employees with closure of their work
facility if they engage in union or other protected con-
certed activities.
(d) Threatening employees with job loss if they engage
in union or other protected concerted activities.
(e) Threatening employees with physical harm and/or
physically touching them because of their union or other
protected concerted activities.
(f) Soliciting employees to vote against the Union.
(g) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concerted
activities.
(h) Placing employees under surveillance while they
engage in union or other protected concerted activities.
(i) Suspending employees because of their sup-
port for and activities on behalf of the Union.
(j) Ceasing operations at the MTS facility and terminat-
ing MTS employees because of their union or other pro-
tected concerted activities.
(k) Ceasing operations at the TTS facility and terminat-
ing TTS employees because of their union or other pro-
tected concerted activities.
(l) Unilaterally changing the vacation check distribu-
tion system at Intership.
INTERNATIONAL SHIPPING AGENCY, INC. 9
(m) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Efrain Gonzalez-Andino whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in the
amended remedy section of this decision.
(b) Compensate Efrain Gonzalez-Andino for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for Re-
gion 12, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension of
Efrain Gonzalez-Andino, and within 3 days thereafter, no-
tify him in writing that this has been done and that the sus-
pension will not be used against him in any way.
(d) Within 14 days from the date of this Order, offer all
MTS and TTS employees who were terminated as a result
of the closures of those facilities reinstatement to any po-
sition in its existing operations which he or she is capable
of filling, giving preference to the discriminatees in order
of seniority. In the event of the unavailability of jobs suf-
ficient to permit immediate reinstatement of all the dis-
criminatees, place those discriminatees for whom jobs are
not available on a preferential hiring list for future vacan-
cies that may occur in positions located at any of the Re-
spondent’s operations in Puerto Rico that the discrimi-
natees are capable of filling.
(e) Make whole all employees terminated as a result of
the closures of MTS and TTS for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section
of the judge’s decision as amended in this decision.
(f) Compensate all employees terminated as a result of
the MTS and TTS closures for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
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 back-
pay award to the appropriate calendar years for each em-
ployee.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
affected MTS and TTS employees, and within 3 days
21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted and Mailed by Order of
the National Labor Relations Board” shall read “Posted and Mailed
thereafter, notify the employees in writing that this has
been done and that their discharges will not be used
against them in any way.
(h) Rescind the changes to its vacation check distribu-
tion that were unilaterally implemented in July 2014.
(i) Before making any further changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the follow-
ing bargaining unit:
All cargo delivery and receiving employees, time-
keepers and paymasters, pier custodians, maintenance
workers (e.g. mechanics, welders, electricians and gaso-
line expenders), gatemen and tally clerks employed at
its Bayamon, Puerto Rico stevedoring and marine ter-
minal facility, excluding all administrative executive
employees, professionals, supervisors, foremen, steve-
dores, guards and all other employees.
(j) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(k) Post at its Bayamon, Puerto Rico facility copies of
the attached notice marked “Appendix” in both English
and Spanish.21 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 consecu-
tive days in conspicuous places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an in-
tranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the Inter-
ship facility involved in these proceedings, it shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by
the Respondent at any time since September 1, 2012.
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(l) Within 14 days after service by the Region, duplicate
and mail, at its own expense, copies of the attached notice
marked “Appendix” to the Union and to all MTS and TTS
employees who were employed by MTS and TTS, respec-
tively, at any time since September 1, 2012. Copies of the
notice, on forms provided by the Regional Director for Re-
gion 12, shall bear the signature of the Respondent’s au-
thorized representative and shall be mailed to the last
known address of each of the employees.
(m) Hold a meeting or meetings during working hours,
which shall be scheduled to ensure the widest possible at-
tendance, at which the attached notice marked “Appen-
dix” is to be read in English and Spanish to all employees
by a responsible management official in the presence of a
Board agent and an agent of the Union if the Region or the
Union so desires, or, at the Respondent's option, by a
Board agent in the presence of a responsible management
official and, if the Union so desires, of an agent of the Un-
ion.22
(n) Within 21 days after service by the Region, file with
the Regional Director for Region 12 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that it has taken to comply.
IT IS FURTHER ORDERED that the complaints are dis-
missed insofar as they allege violations of the Act not spe-
cifically found.
Dated, Washington, D.C. May 20, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
22 If the Bayamon Intership facility involved in these proceedings is
open and staffed by a substantial complement of employees, the notices
must be posted and read within 14 days after service by the Region. If
the facility involved in these proceedings is closed due to the Corona-
virus Disease 2019 (COVID-19) pandemic, the notices must be posted
and read within 14 days after the facility reopens and a substantial com-
plement of employees have returned to work, and the notices may not be
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT coercively question you about your union
or other protected concerted activities.
WE WILL NOT threaten you with discharge if you engage
in union or other protected concerted activities.
WE WILL NOT threaten you with the closure of your
work facility if you engage in union or other protected
concerted activities.
WE WILL NOT threaten you with job loss if you engage
in union or other protected concerted activities.
WE WILL NOT threaten you with physical harm or phys-
ically touch you because of your union or other protected
concerted activities.
WE WILL NOT solicit you to vote against the Union.
WE WILL NOT create the impression that we are engaged
in surveillance of your union or other protected concerted
activities.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT suspend any of you for engaging in union
or other protected concerted activities.
WE WILL NOT cease operations at a facility and termi-
nate those employees because of their union or other pro-
tected concerted activities.
WE WILL NOT change your terms and conditions of em-
ployment without first notifying the Union and giving it
an opportunity to bargain.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
posted until a substantial complement of employees have returned to
work. Any delay in the physical posting of paper notices also applies to
the electronic distribution of the notice if the Respondent customarily
communicates with its employees at this facility by electronic means.
This delay in notice requirements would not apply to the notice-mailing
requirements for former MTS and TTS employees.
INTERNATIONAL SHIPPING AGENCY, INC. 11
WE WILL make Efrain Gonzalez-Andino whole for any
loss of earnings and other benefits suffered as a result of
his suspension, plus interest.
WE WILL compensate Efrain Gonzalez-Andino for the
adverse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Direc-
tor 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 cal-
endar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
suspension of Efrain Gonzalez-Andino, and WE WILL,
within 3 days thereafter, notify him in writing that this has
been done and that the suspension will not be used against
him in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer the employees terminated as a result of the
discriminatory closures of MTS and TTS reinstatement to
any position in our existing operations that he or she is
capable of filling, giving preference to the discriminatees
in order of seniority. WE WILL, in the event of the una-
vailability of jobs sufficient to permit immediate reinstate-
ment of all the discriminatees, place those discriminatees
for whom jobs are not available on a preferential hiring
list for future vacancies that may occur in positions at any
of our operations in Puerto Rico that the discriminatees are
capable of filling.
WE WILL make all employees terminated as a result of
the discriminatory closures of MTS and TTS whole for
any loss of earnings and other benefits resulting from their
unlawful terminations, less any net interim earnings, plus
interest, and WE WILL also make such employees whole for
reasonable search-for-work and interim employment ex-
penses, plus interest.
WE WILL compensate all employees terminated as a re-
sult of the discriminatory closures of MTS and TTS for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, 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 awards to the appro-
priate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharges of the MTS and TTS employees, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the discharges will not be used
against them in any way.
WE WILL rescind the changes to the Intership vacation
check distribution system that were unilaterally imple-
mented in July 2014.
WE WILL, before making any further changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All cargo delivery and receiving employees, time-
keepers and paymasters, pier custodians, maintenance
workers (e.g. mechanics, welders, electricians and gaso-
line expenders), gatemen and tally clerks employed at
its Bayamon, Puerto Rico stevedoring and marine ter-
minal facility, excluding all administrative executive
employees, professionals, supervisors, foremen, steve-
dores, guards and all other employees.
INTERNATIONAL SHIPPING AGENCY, INC.,
MARINE TERMINAL SERVICES, INC., AND TRUCK
TECH SERVICES, INC., SINGLE EMPLOYER
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.
Isis M. Ramos-Melendez, Lilyvette Rodriguez-Soto, and Manijee
Ashrafi-Negroni, Esqs., for the General Counsel.
Antonio Cuevas-Delgado, Esq. and Lisabel M. Rodriguez-Espi-
nosa (Cuevas Kuinlam, Marquez & O'Neill), for the Re-
spondent.
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 Termi-
nal 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
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Relations Act (the Act).1
On the entire record, including my observation of the de-
meanor of the witnesses, and after thoroughly considering the
parties’ briefs, I make the following
FINDINGS OF FACT2
I. JURISDICTION
Intership, a stevedoring corporation, is located in Bayamon,
Puerto Rico. Annually, it purchases and receives goods ex-
ceeding $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 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 Sec-
tion 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 Sec-
tion 2(5) of the Act
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This case explores whether Intership, MTS and TTS, were
a single employer. It also considers whether Intership’s clo-
sure of MTS and TTS, and related actions, were legitimate
business actions, or unlawful efforts designed to prevent unioni-
zation.
1. Intership
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 (Cara-
ballo) is its Chief Financial Officer; Enrique Ivan Sosa-Perez
(Sosa) is its Operations Supervisor; and Karen Figueroa is its
Director of Human Resources. Intershi and the Union have
alongstanding 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 gasoline expenders),
gatemen and tally clerks employed at its Bayamon, Puerto
1 The complaints consist of: the complaint dated July 31, 2013 (the
first complaint); the complaint dated April 30, 2013 (the second com-
plaint); and the complaint dated August 29, 2014 (the third complaint).
(GC Exh. 1).
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.
Rico stevedoring and marine terminal facility, excluding
all administrative executive employees, professionals, su-
pervisors, foremen, stevedores, guards and all other em-
ployees.
(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 con-
tract.
2. MTS
MTS, a wholly-owned Intership subsidiary, repaired and re-
furbished containers,7 chassis,8 and reefers.9 It employed me-
chanics, welders and painters, and mainly served Intership,10
although it also had a few outside clients.11 Luis Ruiz was its
General Manager. (Exh. 1.)
3. TTS
TTS, a wholly-owned Intership subsidiary, was a motor vehi-
cle repair shop, which repaired Kalmars and other vehicles; it
primarily served Intership. Sosa was its General Manager; Ern-
esto Davila was an Operations Manager; Daren Ryan-Oppen-
heimer (Ryan) was an Assistant Operations Manager; and Noel
Lopez was a supervisor. Sosa set benefits and policies,12 as-
signed, scheduled, and discharged workers. (R. Exhs. 28, 31–
34.) TTS handled its own unemployment insurance issues and
had its own personnel manual. (R. Exhs. 32, 34, 35.)
B. Interrelationship between the Entities
1. Leadership
This chart describes Respondent’s hierarchy and lead-
ership:
6 In June 2015, the Union was placed under a trusteeship, and Mer-
cado was ousted. (CP Exh. 1).
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 pro-
hibit 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).
INTERNATIONAL SHIPPING AGENCY, INC. 13
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.)
2. Collaboration
a. Services
Before closing, MTS serviced Intership’s chassis and equip-
ment.13 (GC Exhs. 56–58.)14 Frank’s Chassis & Repair now
performs these services. Before closing, TTS serviced Inter-
ship’s Kalmars, which were either repaired on-site,15 or trans-
ported by MTS. (GC Exhs. 27, 35.) Tribo Tech now performs
these services.
b. Funding and Inventory
Intership loaned MTS funds for equipment, payroll and sup-
plies. (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. 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
MTS did not have a human resources department; such mat-
ters were handled by Intership. When MTS hired, the worker
and Intership’s Figueroa would jointly sign the employment
13Intership sent MTS 8 to 10 chassis per week for servicing.
14 These exhibits were admitted after the hearing.
15 Ryan credibly testified that 99 percent 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).
contract. (GC Exh. 6). In 2005, Ruiz was assigned to MTS by
Intership; in 2012, he was promoted by Intership. Ruiz con-
sidered himself an Intership employee (tr. 74–75), and contin-
ued 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 Qui-
nones prepared TTS’ payroll. Sosa was appointed to TTS by
Intership, supervised by Intership, and uniformly appeared on
Intership’s payroll.
17
When Ryan was hired at TTS, he received
his offer from Intership, signed an employment contract at In-
tership, 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
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.) In-
tership made the final decision to close MTS and TTS.
c. September to October 2012—MTS’ Election and Closure
1. Petition
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
17 Sosa received business cards from both Intership and MTS. (GC
Exhs. 17–18.)
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.)
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
maintenance employees employed by ... [MTS], but, exclud-
ing all other employees, managers, supervisors and guards as
defined in the Act.19
(Jt. Exhs. 1, 9–10.)
2. Preelection Events
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 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 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
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.
c. Credibility Resolution
Given that Ruiz denied the allegedly unlawful remarks at
issue, and eight workers stated otherwise, a credibility reso-
lution must be made. For several reasons, I credit the
several employees, who were consistent and forthright. It is
implausible that these employees collectively concocted their
stories, and still remained able to recount Ruiz’ actions with
such intricate detail and overall consistency. Ruiz’ plant clo-
sure threats were also consistent with MTS’ closure, within
days of the election.
3. Election and Closure
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.)
4. Closure Rationale and Circumstances
Segarra said that he closed MTS for the following rea-
sons: the loss of major clients (i.e., Sea Star21and Mediter-
ranean 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 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 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’songoing loans and that the In-
tership Board retained an auditor in 2011 to “study the tax as-
pects” 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 liqui-
dated 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-party chassis and containers for profit.
Although, as will be discussed in the analysis section,
Segarra’s and Caraballo’s testimony about MTS’ closure
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.
21 Segarra alleged that this loss resulted in a 33 percent decrease in In-
tership’s revenue.
22 Caraballo said that this filing stopped Intership from collecting over
$700,000 owed by Trailer Bridge.
rationale was not credited, their testimonies regarding MTS’
and Intership’s ongoing losses and poor fiscal performance
were credited, and supported by voluminous financial records
and statements.
D. October 2012 to March 2013—TTS Closure Threats and
Shutdown
1. Closure Threats
a. General Counsel’s Position
Yamil Colon-Santiago (Colon), a TTS employee, related
that, after MTS’ closure and Union organizing drive, Davila
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.)
INTERNATIONAL SHIPPING AGENCY, INC. 15
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 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 be-
cause 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.)
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 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
Sosa denied knowing that TTS employees were considering
unionizing. He and Lopez each denied threatening job loss or
plant closure.
c. Credibility Resolution
Given that Ryan, Rosa, Colon and Alejandro reported re-
peated 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 testi-
mony was supported by TTS’ and MTS’ actual closures
shortly, after the advancement of the alleged threats at issue.
Finally, I found Sosa and Davila to be less than credible wit-
nesses, whose comments were deeply consistent with the slew
of unlawful threats and actions present herein.
2. Closure
On April 26, 2013, TTS closed and discharged its employ-
ees.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 con-
tinuously loaned TTS monies to meet expenses. He said that he
reported 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 testimonies about TTS’ clo-
sure rationale were not credited, their testimonies regarding TTS’
and Intership’s poor fiscal performance were credited, and cor-
roborated by financial records.
E. July 17 to 21, 2014 Strike and Demonstration
On these dates, Intership and MTS employees picketed
26 The Union had not filed a petition seeking to represent TTS employ-
ees, when it closed.
27 (R. Exh. 26) (TTS’ total losses in 2012 were $891,685).
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 un-
lawful blockage.
Arturo Figueroa Rios (Figueroa), former Union attorney, tes-
tified that several supervisors observed the picketing. He iden-
tified: 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
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 Figueroa tell
Rodriguez not to take photos and Rodriguez reply that he was
following orders. (Tr. 379.)
Garcia acknowledged taking photos and video to substanti-
ate blockages. (R. Exh. 18.) He insisted that the picketers
blocked the gate, but, said that the police did not agree.
Sosa 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 be-
ing 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.
F. July 21, 2014—Rene Conception-Sanchez Incident
1. General Counsel’s Stance
Rene Concepcion-Sanchez (Concepcion), an employee, tes-
tified 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) corroborated his ac-
count.
2. Respondent’s Stance
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 deliv-
ery, and recollected Concepcion, pressing against Caraballo
and inserting himself in her discussion with the driver. He de-
nied grabbing Conception, or witnessing any threats.
28 Sosa said that TTS’ problems were exacerbated by the loss of several
clients. See (R. Exhs. 36–37).
29 He agreed, on cross examination, that there are dock areas, which
are videotaped for security reasons. (Tr. 359.)
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Credibility Resolution
Given that Concepcion said that Caraballo pushed and
threatened him and that Sosa grabbed him, a credibility reso-
lution is needed. Concepcion is credited over Sosa and Cara-
ballo. First, his willingness to testify against high-level supe-
riors without an obvious financial stake enhances his credi-
bility. 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 discipline. The absence of such discipline, conse-
quently, undercuts her credibility. Finally, Caraballo and
Sosa seemed more committed to supporting Intership’s po-
sition than offering candid testimony.30
G. July 2014—Caraballo and Segarra Comments
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 him at the strike and told him to “wait until the com-
pany closes.” (Tr. 549–50.) Segarra and Caraballo denied such
commentary, which triggers another credibility analysis favor-
ing 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.
H. Unilateral Change Allegations
1. Vacation Pay Procedure
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. Mer-
cado testified that Intership did not bargain over this change,
or notify the Union before implementation. Caraballo conceded
making the change and cited confidentiality issues.
2. Maintenance Workers’ Hours
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 November 2014. Juan Del-
gado 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 In-
tership never notified him or bargained over this issue.
30 Regarding Sosa, if he were fully credited on every contested point,
such a finding would mean crediting him over at least 10 other witnesses,
which is implausible.
31 Mercado agreed, on cross, that there are some unit employees, who
do not work 40 hours per week. (Tr. 1053.)
b. Respondent Stance
Gerardo Rosa-Garay (Rosa), Intership’s Maintenance Man-
ager, and Garcia testified that unit maintenance employees pe-
riodically 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 scheduled to work (R. Exhs. 12–13), and in-
sisted 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 counter-
parts work fewer hours.
c. Credibility Resolution
This credibility resolution favors Rosa and Garcia. First,
Rivera, Delgado and Duran offered generalized and conclu-
sory testimony about their workweek, whereas Rosa and Gar-
cia provided persuasive and detailed accounts. Second, it is
noteworthy that Counsel for the General Counsel failed to but-
tress this allegation with sufficient work schedules and pay
records, which 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.
3. 8-Hour Auto Checker Guarantee
a. General Counsel’s Stance
Checkers inspect, receive, dispatch and load cargo. Rafael
Hernandez-Alicea (Hernandez), a checker, testified that he per-
formed 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 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
Garcia stated that checkers at the main gate, which he re-
ferred 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:
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, thereafter, are paid for actual
hours worked. He said that checkers also receive a 4-hour guar-
antee, when working on vessels. He explained that GC
Exhs. 32–33 demonstrate that Intership did not pay the 8-hour
32 Such evidence, which should have been readily obtainable, would
have persuasively demonstrated this point.
33 On these dates, he worked 6, 7, and 4 hours, and averred that he
should have been paid for 8 hours each day.
INTERNATIONAL SHIPPING AGENCY, INC. 17
guarantee between September 2014 and March 2015.34
c. Credibility Resolution
This factual dispute has been resolved in favor of Respond-
ent. First, the dearth of pay records demonstrating a consistent
practice weighs in its favor. Second, Garcia’s detailed testi-
mony was persuasive, his account was plausible, and his de-
meanor was superior.
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 appoint a designated auto
checker, on the basis of client needs.35 For many of the
reasons previously cited, Respondent wins this credibility dis-
pute. As stated, Garcia was very credible. Additionally, the
conspicuous lack of business records demonstrating the exist-
ence of a consistent practice on this issue deeply undercuts Mer-
cado’s generalized testimony.
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 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] to be addressed
directly to Intership management. . . . [Y]ou blatantly vio-
lated these . . . guidelines and . . . used profanity towards a
[client’s] manager. . . .
[W]e have decided that [a] ... June 2, 3rd and 4th [suspension
is warranted] ….
(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 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.
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 Gon-
zalez’ 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.
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.
35 As an example, Garcia said that he would appoint a checker, when
freight had 2 makes of cars mixed together.
36 See also (GC Exh. 51) (citing undisputed workplace rule regarding
customer interactions).
III. ANALYSIS
A. Single Employer Status37
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 manage-
ment, (3) interrelation of operations, and (4) common control
of 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 charac-
terized by the absence of an arm's-length relationship. . . .
Cimato Bros., Inc., 352 NLRB 797, 798 (2008). Centralized
control of labor relations is the primary factor in this analysis.
Geo. V. Hamilton, Inc., 289 NLRB 1335, 1337 (1988). “[C]om-
mon 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
These factors favor single employer status. MTS and TTS
were owned by Intership. Segarra, Intership’s president, pre-
sided 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).
2. Interrelationship of operations
This factor favors single employer status. Before its closure,
MTS serviced Intership, its main customer. MTS’ Ruiz trans-
ferred 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 or-
ders bore an MTS logo. TTS’ machinery and employee uni-
forms had MTS logos.
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, 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 deci-
sions; determined benefits and assignments; assisted discharge
decisions; set many workplace policies; and handled unem-
ployment insurance. TTS had its own Employee Manual. On
the positive side, however, Intership: prepared TTS’ payroll; ap-
pointed 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
37 This allegation is pled in par. 5 of the first complaint.
38 Ryan credibly described 99 percent 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.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
still assisted with evaluations, terminations and other person-
nel matters. This evidence suggests that Intership centrally con-
trolled the most significant labor relations matters (e.g., hiring
and control of upper 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.
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.
B. 8(a)(1) Allegations
1. Interrogations41
Respondent unlawfully interrogated its workers. Ruiz
asked: Nater if he had spoken to the Union; Escotto whether
he had heard any Union rumors and would identify their sup-
porters; and Velasquez who supported the Union. Caraballo
asked Hernandez why he was not at the strike.
In Westwood Healthcare Center, 330 NLRB 935 (2000), the
Board held that the following factors determine whether an inter-
rogation 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 inter-
rogator appear to be seeking information on which to base
taking action against individual employees?
(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 atmos-
phere of unnatural formality?
(5) Truthfulness of the reply.
Id. at 939. In applying these factors, however, the Board con-
cluded that:
In the final analysis, our task is to determine whether under
all the circumstances the questioning at issue would reason-
ably tend to coerce the employee at whom it is directed so
that he or she would feel restrained from exercising rights
protected by Section 7 of the Act.
Id. at 940.
Ruiz’ 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’ interroga-
tions were accompanied by threats and unlawful comments.
Second, Ruiz’ queries were designed to ferret out the identity
of the Union’s supporters and communicated a threat of retalia-
tion. Third, Ruiz and Caraballo are high-level managers. Fi-
nally, the queries at issue mostly occurred under 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 employees in violation of the Act,
as summarized below:
Date Speaker(s) Recipient(s) Site Summary
Sep.
2012
Ruiz Nater, Es-
cotto, Ve-
lasquez,
Alvarado,
Allende,
Marrero,
Alfredo and
Garcia
MTS  “[I]f the Union … came into MTS, … [it] would
close.” (Tr. 206).
 If the Union won, MTS would close. (Tr. 229).
 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 inter-
ests.” (Tr. 392).
 “[I]f the [TTS] employees unionize[d], … what hap-
pened to MTS, the same thing [would happen] to
them, they would be fired ….” (Tr. 716).
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.
42 These allegations are pled in first complaint pars. 11–12 and 16 and
second complaint pars. 7–8 and 10.
INTERNATIONAL SHIPPING AGENCY, INC. 19
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).
 MTS closed because of the Union.
 If TTS unionized, it would close.
 MTS closed because the Union “got in.” (Tr. 807).
 If TTS unionized, it would also close. (Tr. 808).
 Employees would be out of a job, if they unionized.
Jul. 21,
2014
Caraballo Rivera,
Concepcion
and Her-
nandez
Inter.  If employees continued their Union activities and pro-
tests, “[they] would be destroying the company and
left without a job.” (Tr. 499).
 All of the MTS employees were fired and that Inter-
ship’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 employ-
ees’ Section 7 rights. American Freightways Co., 124 NLRB
146 (1959). In evaluating such statements, the Board, “does
not consider subjective reactions, but rather whether, under all
the circumstances, a respondent’s remarks reasonably tended
to restrain, coerce, or interfere with employees’ rights guar-
anteed under the Act.” Sage Dining Service, 312 NLRB 845,
846 (1993).
Respondent’s repeated threats violated the Act; such threats
were continuous, clear and 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 result-
ing from union victory are unlawful;43 Mid-South Drywall Co.,
339 NLRB 480 (2003).
3. Soliciting Antiunion Votes44
In September 2012, Respondent, via Ruiz, unlawfully solic-
ited employees to vote against unionization. “[W]here an em-
ployer solicits employees to campaign against union representa-
tion . . . 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.”
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. See, e.g.,
Stevens Creek Chrysler, 353 NLRB 1294, 1295–1296 (2009).
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).
5. Surveillance46
Sosa, Rodriguez, Caraballo and Noguera engaged in sur-
veillance, when they recorded, photographed and otherwise
monitored the July 2014 strike. An employer unlawfully “sur-
veils 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.
Several factors support a surveillance finding. The manage-
ment 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, includ-
ing: 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, unlaw-
ful.
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 be-
cause of their protected activities. Studio 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 dis-
pute, and were, accordingly, unlawful.
44 These allegations are pled in pars. 11 and 16 of the first complaint.
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.
47 These allegations are pled in pars. 7 and 10 of the second complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
C. 8(a)(5) Allegations
1. Unilateral changes
a. Legal Precedent
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 (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. 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
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 un-
lawful. United Cerebral Palsy of New York City, 347 NLRB
603, 606–607 (2006). In July 2014, Intership ceased distrib-
uting vacation checks at the plant on the Friday before a vaca-
tion, and instituted a new system, where employees had to
retrieve vacation checks at the main office. This material and
significant change was unlawfully implemented, without bar-
gaining or notice.
c. Maintenance Assignments49
The General Counsel failed to show that Intership unilater-
ally changed its maintenance assignments in a material or
substantial way. Unit maintenance employees never consist-
ently 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.
d. Auto Checkers50
The General Counsel failed to show that Intership unilater-
ally modified its auto checker procedures. The General Coun-
sel offered a dearth of records on this matter, and Garcia’s
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 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,
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.
violated Section 8(a)(5) by unilaterally closing MTS, without
offering the Union a chance to bargain over this matter.
a. Legal Precedent
In Fibreboard Paper Products v. NLRB, 379 U.S. 203
(1964), the Supreme Court found that an employer’s subcon-
tracting of maintenance work, which merely replaced existing
employees with those of an independent contractor perform-
ing 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, requir-
ing bargaining over such a decision “would not significantly
abridge the 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), how-
ever, the Supreme Court held that an employer’s decision to
close down part of its business was not a mandatory bargaining
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 that impact em-
ployees, “such as plant relocations, sales, other kinds of subcon-
tracting, automation, etc.” must be considered on its specific
facts to assess whether “the benefit for . . . collective bargain-
ing . . . 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 (D.C. Cir. 1993), pet. for cert, dis-
missed 146 LRRM 2896 (1994), the Board announced the test
for determining whether a work relocation decision is a manda-
tory bargaining topic. The Board held that the General Counsel
has the initial burden of showing that the decision was “un-
accompanied 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
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, 277–278 (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 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
51 These allegations are pled in pars. 13, 15, and 18 of the first com-
plaint.
INTERNATIONAL SHIPPING AGENCY, INC. 21
on employment, but, have as their focus the economic profitabil-
ity of the employing enterprise,52 which fall within the spectrum
between Fibreboard and First National Maintenance.53
b. Intership’s Decision to Close MTS Should be Viewed Under
Dubuque
As a thresholdmatter, 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 Re-
spondent’s single employer enterprise). Moreover, MTS’ main
role was to support Intership’s stevedoring business by servic-
ing its chassis. Intership’s primary business, stevedoring, was
effectively unchanged by the subcontract. The elimination of
MTS’ supporting function 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 ste-
vedoring, or performing chassis upkeep; the main thing that
the subcontract achieved was that it redistributed Intership’s
chassis upkeep function from MTS to another entity (i.e.,
Frank’s Chassis).
MTS’ cessation was, however, also not a clear case of Fibre-
board subcontracting. Fibreboard subcontracting requires, in-
ter alia, replacing existing employees with a contractors’
workers performing the same work under similar employ-
ment conditions, without a capital investment or alteration
in the employer’s basic operation. Thus, although some por-
tions 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 con-
ditions, other factors preclude Fibreboard handling. These
non-Fibreboard factors, which elevate the MTS subcontract to
a Dubuque issue, are as 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 repre-
sented 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 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 ap-
plicable to a “Category III” decision of this nature, which was
a decision that had a direct impact on MTS’ workers, but, also
focused upon economic profitability. Westinghouse, supra.
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 Fibre-
board subcontracting).
54 Intership did not show that MTS’ losses flowed from non-labor
costs (e.g., old equipment, production inefficiencies or outdated tech-
nology), which seems intuitively unlikely, given that MTS was a
c. Dubuque Prima Facie Case
The General Counsel made a prima facie Dubuque showing.
The MTS subcontract did not significantly change scope and
direction of Intership’s business, inasmuch as it uniformly
remained a stevedoring company. Intership continued to ser-
vice constant clients, market the same stevedoring services
and compete in identical markets. Such a decision, thus, re-
mained 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, pro-
cessing equipment 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 Lad-
der, 286 NLRB 21 (1987) (Board held that, where the em-
ployer stopped manufacturing ping pong tables and ladder
parts, and contracted with a subcontractor to manufacture those
items on its behalf, its subcontract remained a mandatory sub-
ject 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 under Dubuque, rather than
Fibreboard, but does not, independent of other rationales, re-
quire a finding that Intership changed the nature or direction of
its business. See Pertec Computer, 284 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 technology of produc-
tion, 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).
d. Dubuque Affirmative Defenses
Intership failed to establish any Dubuque affirmative de-
fenses. 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 factor, the Union, could not
have offered sufficient concessions to alter its decision.55
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 Chas-
sis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
e. Conclusion
In sum, Intership’s decision to close MTS must be analyzed
under Dubuque. The MTS subcontract was unaccompanied by
a basic change in the nature of Intership’s operation, inasmuch
as it steadfastly remained a stevedoring business and only sub-
contracted 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 es-
tablish any Dubuque affirmative defenses. Thus, bargaining
between the parties regarding MTS’ closure should have com-
menced 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. 8(a)(3) Allegations
1. Gonzalez’ suspension56
Intership lawfully suspended Gonzalez. It demonstrated that
it would have suspended him, even in the absence of his pro-
tected activity.
a. Legal Precedent
The framework for analyzing whether discriminatory ac-
tions violate Section 8(a)(3) is provided under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), which requires the General
Counsel to show, by a preponderance of the evidence, that the
worker’s protected conduct was a motivating factor in the ad-
verse action. This initial burden is satisfied by showing pro-
tected activity, employer knowledge and animus. If the General
Counsel meets this initial burden, the burden shifts to the em-
ployer to prove that it would have taken the same adverse
action, absent the protected activity. Mesker Door, 357 NLRB
591–592 (2011). The employer cannot meet its burden, how-
ever, 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 prof-
fered reasons are pretextual (i.e., either false or not actually re-
lied on), the employer fails to show that it would have
taken the same action for those reasons 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 & En-
tertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
b. Prima Facie Case
The General Counsel made a prima facie showing that Gon-
zalez’ protected activity was a motivating factor. He was a
shop steward and Intership knew of his status. There is
56 These allegations are pled in pars. 5 and 6 of the third complaint.
57 The General Counsel failed to show that this rule was disparately
enforced.
abundant evidence of Union animus in the form of threats, inter-
rogations, surveillance and other actions.
c. Affirmative Defense
In spite of a strong showing of animus, Respondent persua-
sively adduced that it would have suspended Gonzalez, even
absent his protected activity. First, he breached a well publi-
cized rule prohibiting client interactions.57 Second, he magni-
fied 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, Un-
ion President Mercado acknowledged the validity of the rule and
did not challenge its disciplinary reach. (GC Exh. 51.) Finally,
Garcia’s disciplinary rationale was credited and afforded great
weight. I find, as a result, that, irrespective of the obvious Un-
ion 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.
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.
a. Legal Precedent
Counsel for the General Counsel contends that the discrim-
inatory 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.
i. Applicability of Darlington
In Darlington, an 8(a)(1), (3), and (5) case, the Supreme Court
held that an employer may 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 f 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 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) viola-
tion. The Fourth Circuit then enforced the Board’s initial find-
ing that the employer’s refusal to bargain with the union after
the closing violated Section 8(a)(5), relying on the 8(a)(3) viola-
tion. 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 par-
tially closes its operation with a motivation to affect union ac-
tivities at its remaining plants, it violates Section 8(a)(3).
58 These allegations are pled in pars. 13 and 17 of the first complaint.
INTERNATIONAL SHIPPING AGENCY, INC. 23
Purolator 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 Indus-
tries, 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
(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 other-
wise 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 Maintenance,
supra, 452 U.S. at 682. As the Court observed in First Na-
tional 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) (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 deci-
sion to partially close its business.
The instant dispute, thus, should not be considered under the
business closure principles set forth in Darlington because In-
tership 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 subcon-
tracting from partial closings). The bargaining obligation at issue
herein, therefore, renders the MTS subcontract into a non-Dar-
lington matter.
ii. Applicability of Wright Line
Although Darlington may be inapplicable, the Board may still
analyze allegedly discriminatory subcontracts and work trans-
fers analogous to the MTS subcontract under the parameters
set forth in Wright Line. See, e.g., Plaza Properties of Mich-
igan, Inc., 340 NLRB 983, 987 (2003) (unlawful subcontract-
ing 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. 1996) (Table); Handi-
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
Bag, Inc., 267 NLRB 221 (1983).
b. Prima Facie Case
The General Counsel presented a prima facie Wright Line
showing that Intership 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 ac-
tivities and other unlawful actions present herein. In addition,
the virtually lockstep timing between the Union’s election vic-
tory and MTS’ subcontract strongly demonstrates animus. 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, absent the MTS unit’s protected
activities. Intership contention that it subcontracted out MTS’
work for financial reasons is unpersuasive. First, Intership ac-
cepted MTS’ mounting losses for several years without inter-
vention, and only responded after MTS unionized. If MTS’
deep losses were a valid reason, Intership would have sub-
contracted out the MTS operation vastly sooner. Second,
even though Intership contends that it subcontracted out MTS’
work because of 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 sub-
contract was non-discriminatory implausible. When Intership
repeatedly told the MTS unit that it would close if they un-
ionized and then fulfilled its promise within 2 short days of
the Union’s election victory; its anti-Union sentiments became
blatant. In sum, Intership discriminatorily subcontracted out
MTS’ work.
3. TTS Subcontract60
Intership discriminatorily subcontracted out TTS’s work.61
Intership failed to show that it would have subcontracted out
TTS’ work, absent employees’ protected activities.
a. Prima Facie Case
The General Counsel made a prima facie showing of a
Wright Line violation. Ryan credibly testified that TTS em-
ployees were discussing unionizing. The several plant closure
and discipline threats, and other unlawful comments and ac-
tions, establish knowledge and animus.
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.
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 Inter-
ship’s core business function (i.e., stevedoring) essentially unchanged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
First, its contention that it closed TTS because of mounting
losses is undermined by its 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
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) demon-
strates a common scheme to use unlawful subcontracts and
work transfers to thwart unionization.63
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).
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.
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.
4. The Union is, and at all times material times was, the
exclusive representative of the employees for collective bar-
gaining within the meaning of Section 9(a) of the Act in the
following appropriate bargaining unit, which has been identified
as the Intership 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, ex-
cluding all administrative executive employees, profession-
als, 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 the employees for collective bar-
gaining 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 all other
62 It failed to produce any records showing that the cost of using Tribo
Tech was less than TTS’ deficits.
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 pro-
tected activities;
(b) Threatening employees that they would be disciplined
or discharged, if they engaged in Union or other protected ac-
tivities;
(c) Threatening employees that it would close, if they
engaged in Union or other protected activities;
(d) Soliciting employees to vote against the Union;
(e) Creating the impression that it was engaging in surveil-
lance of employees’ Union or other protected activities; activi-
ties; and
(f) Engaging in surveillance of employees’ Union or other
protected
(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:
(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.
8. Respondent violated Section 8(a)(1) and (5) by:
(a) Unilaterally changing the vacation check distribution sys-
tem at Intership, without affording the Union notice and an
opportunity to bargain as the exclusive collective- bargaining
representative of the Intership unit.
(b) Unilaterally subcontracting and transferring work per-
formed 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.
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.
REMEDY
Having found that Respondent committed certain unfair la-
bor practices, it is ordered to cease and desist and to take
certain affirmative action to effectuate the policies of the Act.
Although the General Counsel seeks an order requiring Re-
spondent to restore MTS and TTS, restoration of the status
quo ante is inappropriate, when it causes undue hardship. Chi-
nese American Sewing Co., 227 NLRB 1670 (1977). For sev-
eral 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 unprofitable
subsidiaries, in tandem with its own losses, would create an un-
due hardship. Second, while Intership accelerated MTS’ and
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.
INTERNATIONAL SHIPPING AGENCY, INC. 25
TTS’ closures for discriminatory reasons, it is probable that
it would have eventually cut its losses and closed these unprof-
itable entities on its own initiative. As a result, forcing In-
tership to reverse this eventual course via restoration en-
hances an undue hardship finding. Lastly, MTS’ facility has
been leased through 2018, its equipment disassembled and dis-
posed 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:
[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 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 bargain-
ing results in a bona fide impasse; (3) the failure of the
Union to commence negotiations within 5 days of the re-
ceipt of Respondent’s notice of its desire to bargain with
the Union; or (4) the subsequent failure to the Union to bar-
gain in good faith. Of course, if Respondent decides to
resume its . . . [MTS operations] and offers to reinstate the
. . . [MTS unit] to their same or substantially equivalent po-
sitions, its liability will cease as of that date.
National Family Opinion, 246 NLRB 521, 522 (1979).
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 res-
titution would create an undue hardship). Under Purolator Ar-
mored, 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 po-
sitions 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 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
65 On August 17, 2015, the General Counsel filed a Motion to Amend
Complaint, which sought to supplement the desired remedy by reim-
bursing affected employees for search for work and work related ex-
penses caused by their loss of employment, without regard to whether
interim earnings are in excess of these expenses. Normally, those ex-
penses 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,
whom jobs are not now available on a preferential hiring list
for any future vacancies which may occur in jobs they are ca-
pable of filling. Respondent shall also make the discriminatees
whole by paying each of them 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 Re-
spondent or it makes an offer of reinstatement, as stated above.
In addition to making the MTS unit and affected TTS em-
ployees whole for any loss of 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 pre-
scribed 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 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 ap-
propriate 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).
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 condi-
tions, and other terms and conditions of employment of the
Intership or MTS units.
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).
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended67
ORDER
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
1. Cease and desist from
(a) Interrogating employees concerning their Union or other
protected activities;
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.
67 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
(b) Threatening employees that they will be disciplined or
discharged, if they engage in Union or other protected activities;
(c) Threatening employees that it will close, if they engage
in Union or other protected activities;
(d) Soliciting employees to vote against the Union;
(e) Creating the impression that it is surveilling employees’
Union or other protected activities;
(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 en-
gage in Union or other protected activities;
(h) Subcontracting and transferring its operations at MTS,
its subsidiary, and effectively terminating the MTS unit, be-
cause of their Union or other protected activities;
(i) Subcontracting and transferring its operations at TTS, its
subsidiary, and effectively terminating its TTS employees, be-
cause of their Union or other protected activities;
(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 ap-
propriate 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, ex-
cluding all administrative executive employees, profession-
als, guards and supervisors as defined by the Act, foremen,
stevedores and all other employees.
(k) Unilaterally subcontracting and transferring work per-
formed at MTS, and effectively terminating those employees,
without affording the Union notice and an opportunity to bar-
gain 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 employed by MTS at its facility lo-
cated 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
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request, bargain with the Union as exclusive bar-
gaining representative of its employees in the MTS unit con-
cerning their decision to subcontract out MTS’ operations and
68 A broad order is warranted “when a respondent is shown to
have a proclivity to violate the Act or has engaged in such egre-
gious or widespread misconduct as to demonstrate a general
disregard for the employees' fundamental statutory rights.”
Hickmott Foods, 242 NLRB 1357, 1357 (1979).
terminate the MTS unit.
(b) Make whole the MTS unit employees in the manner set
forth in the remedy section of this Decision.
(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 po-
sitions, without prejudice to their seniority or other rights and
privileges previously enjoyed; or (2) offering reinstatement to
each 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 imme-
diate 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.
(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 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
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 em-
ployee.
(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, 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.
(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 conspicuous places, including all places where notices to
employees are customarily posted. In addition to physical post-
ing 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 any other material. Re-
spondent shall also shall duplicate and mail, at its own expense,
a copy of the notice to all former MTS and TTS employees
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.
INTERNATIONAL SHIPPING AGENCY, INC. 27
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 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.
Dated, Washington, D.C. March 30, 2016
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interrogate employees about their Union or other
protected activities.
WE WILL NOT threaten employees that they will be disci-
plined 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 em-
ployees’ Union or other protected activities.
WE WILL NOT watch employees’ Union or other protected ac-
tivities.
WE WILL NOT threaten employees with violence to their per-
sons 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 distribu-
tion system at Intership, without affording the Union notice
and an opportunity to bargain as the exclusive collective-bar-
gaining representative of our employees at Intership in the fol-
lowing 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, exclud-
ing all administrative executive employees, professionals,
guards and supervisors as defined by the Act, foremen, ste-
vedores and all other employees.
WE WILL NOT unilaterally subcontract and transfer work per-
formed 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) reinstat-
ing 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 pre-
viously enjoyed; or (2) offering reinstatement to each discrim-
inatee to any position at Intership or our other existing subsidi-
ary operations, which they are capable of filling, giving pref-
erence to discriminatees in order of seniority, and in the event
of the unavailability of jobs sufficient to permit immediate re-
instatement 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 allocat-
ing the backpay award to the appropriate calendar years of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
each employee.
INTERNATIONAL SHIPPING AGENCY, INC.,
AND ITS SUBSIDIARIES, MARINE TERMINAL
SERVICES, INC., AND TRUCK TECH SERVICES,
INC., ASINGLE EMPLOYER
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.