Transportation Services of St. John, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 2020

369 N.L.R.B. 15 (N.L.R.B. 2020)

369 NLRB No. 15
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.
Transportation Services of St. John, Inc. and United,
Industrial, Service, Transportation, Professional
and Government Workers of North America, of
the Seafarers International Union of North
America, Atlantic, Gulf, Lakes and Inland Wa-
ters District/NMU, AFL–CIO. Case 12–CA–
202248
January 30, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On May 20, 2019, Administrative Law Judge Elizabeth
M. Tafe issued the attached decision. The Respondent
filed exceptions with supporting arguments, and the Gen-
eral Counsel filed an answering brief and motion to strike
Respondent’s exceptions.1 The Respondent filed a reply
brief and opposition to the General Counsel’s motion to
strike.
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,2 and conclusions and to adopt the recommended Or-
der as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that the Re-
spondent, Transportation Services of St. John, Inc., St.

1 Citing a superseded iteration of the Board’s Rules and Regulations,
the General Counsel moves to strike the Respondent’s exceptions on the
ground that they are procedurally defective. We find that the Respond-
ent’s exceptions, while not a model of clarity, substantially comply with
Sec. 102.46(a)(1) of the Board’s Rules and Regulations, the currently
applicable provision. See Windsor Redding Care Center, LLC, 366
NLRB No. 127, slip op. 1 fn. 1 (2018), enf. denied on other grounds 944
F.3d 294 (D.C. Cir. 2019). Therefore, we deny the General Counsel’s
motion to strike the exceptions.
The General Counsel also moves to strike the exhibits attached to the
Respondent’s exceptions, namely, the Respondent’s posthearing brief to
Judge Tafe, an email allegedly demonstrating that the Respondent’s post-
hearing brief was properly filed, and a Respondent position statement.
The posthearing brief was not properly filed with the Division of Judges,
however, and attaching the brief to the exceptions does not remedy the
Respondent’s initial failure to file it properly. Nevertheless, we find it
unnecessary to pass on whether to strike the exhibits since consideration
of their contents would not affect our decision.
2 Some of the Respondent’s exceptions allege that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satisfied
that the Respondent’s contentions are without merit.
We adopt the judge’s finding that the Respondent violated Sec. 8(a)(5)
of the Act within the meaning of Sec. 8(d) by modifying the terms of its
collective-bargaining agreement with the Union. We correct, however,
John, United States Virgin Islands, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the United, Industrial, Service, Transportation, Profes-
sional and Government Workers of North America, of the
Seafarers International Union of North America, Atlantic,
Gulf, Lakes and Inland Waters District/NMU, AFL–CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the following unit by modi-
fying the grievance and arbitration procedures set forth in
article XI of its collective-bargaining agreement with the
Union without the Union’s consent:
All crewmen employed by the Respondent at its place of
business located in the United States Virgin Islands.
(b) Refusing to process the grievance filed by the Union
on December 27, 2016, concerning the suspension of Al-
vis Emanuel.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Abide by the terms of the collective-bargaining
agreement by following the grievance and arbitration pro-
cedures contained in article XI of that agreement and by
processing accordingly the grievance filed by the Union
on December 27, 2016, concerning the suspension of Al-
vis Emanuel.
the judge’s description of the “sound arguable basis” standard for deter-
mining whether a contract has been unlawfully modified. The judge in-
correctly characterized the standard as an affirmative defense, stating:
“Upon a showing that an employer has modified a contract provision
without the union’s consent, the employer may justify the modification
by demonstrating that the employer had a ‘sound arguable basis’ for in-
terpreting the language of the contract to permit the modification.” If an
employer has a sound arguable basis for its position that the contract per-
mitted it to act as it did, then the General Counsel cannot show that the
employer modified the contract in the first place. See Bath Iron Works
Corp., 345 NLRB 499 (2005), affd. sub nom. Bath Marine Draftsmen’s
Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007). For the reasons stated by
the judge, we agree with her that the Respondent did not have a sound
arguable basis for its position that art. XI of the parties’ agreement al-
lowed it to refuse to strike arbitrators from the list provided by the Fed-
eral Mediation and Conciliation Service.
3 We shall modify the recommended Order to conform to our standard
remedial language, and we shall substitute a new notice to conform to
the Order as modified. In her proposed remedy, the judge required the
Respondent to select an arbitrator for employee Alvis Emanuel’s suspen-
sion grievance “upon the Union’s request.” The record demonstrates that
the Union has repeatedly asked the Respondent to select an arbitrator.
Accordingly, we shall order the Respondent to do so without requiring
the Union to renew its request.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Within 14 days after service by the Region, post at
its facility in St. John, United States Virgin Islands, copies
of the attached notice marked “Appendix.”4 Copies of the
notice, in both English and Spanish, 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. The Respondent shall take rea-
sonable steps to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since March 8, 2017.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. January 30, 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
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain in good faith
with the United, Industrial, Service, Transportation, Pro-
fessional and Government Workers of North America, of
the Seafarers International Union of North America, At-
lantic, Gulf, Lakes and Inland Waters District/NMU,
AFL–CIO (the Union) as the exclusive collective-bargain-
ing representative of the employees in the following unit
by modifying the grievance and arbitration procedures set
forth in article XI of our collective-bargaining agreement
with the Union without the Union’s consent:
All crewmen employed by the Respondent at its place of
business located in the United States Virgin Islands.
WE WILL NOT refuse to process the grievance filed by
the Union on December 27, 2016, concerning the suspen-
sion of Alvis Emanuel.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL abide by the terms of the collective-bargaining
agreement by following the grievance and arbitration pro-
cedures contained in article XI of that agreement and pro-
cess accordingly the grievance filed by the Union on De-
cember 27, 2016, concerning the suspension of Alvis
Emanuel.
TRANSPORTATION SERVICES OF ST. JOHN, INC.
The Board’s decision can be found at
https://www.nlrb.gov/case/12-CA-202248or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
TRANSPORTATION SERVICES OF ST. JOHN, INC. 3
Enrique González Quinoñes, Esq., for the General Counsel.
Maria Tankenson Hodge, Esq. (Hodge & Hodge), of
United States Virgin Islands, for the Respondent.
John J. Merchant, Esq. (Seafarers Union), of United
States Virgin Islands, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELIZABETH M. TAFE, Administrative Law Judge. This case
was tried in Charlotte Amalie, St. Thomas, United States Virgin
Islands on August 30, 2018. The United, Industrial, Service,
Transportation, Professional and Government Workers of North
America, of the Seafarers International Union of North America,
Atlantic, Gulf, Lakes and Inland Waters District/NMU, AFL–
CIO (Charging Party or Union) filed the charge on July 12,
2017,1 which was amended on March 8, 2018. The General
Counsel issued the complaint on April 27, 2018 (the complaint).
The complaint alleges that Transportation Services of St. John,
Inc., (Respondent) failed and refused to continue in effect the
terms and conditions of its collective-bargaining agreement with
the Union by refusing to arbitrate grievances, and has been fail-
ing and refusing to bargain in good faith with the Union within
the meaning of Section 8(d) of the Act, in violation of Section
8(a)(5) and (1) of the Act.
As discussed in detail below, I find merit to the complaint al-
legations.
The parties were given a full opportunity to participate in the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, and to file briefs. On the entire rec-
ord,2 including my observation of the demeanor of the witnesses,
and after considering the brief filed by the General Counsel,3 I
make the following findings, conclusions, and recommenda-
tions.

1 All dates are in 2017 unless otherwise indicated.
2 Citations to the record are included to aid review and are not neces-
sarily exclusive or exhaustive. In making credibility findings, all rele-
vant factors have been considered, including the interests and demeanor
of the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts;
inherent probabilities; and reasonable inferences that may be drawn from
the record as a whole. See, e.g., Daikichi Corp., 335 NLRB 622, 633
(2001), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003).
3 Neither the Respondent nor the Union filed posthearing briefs in
this matter.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with a principal office and
place of business in St. John, United States Virgin Islands, a Ter-
ritory of the United States (USVI) engages in the business of
providing regular marine ferry passenger transportation services
between the islands of St. Thomas, USVI, and St. John, USVI,
and occasional marine ferry passenger transportation services to
the islands of St. Croix, USVI and the Commonwealth of Puerto
Rico.4 Annually in conducting its business, the Respondent de-
rives gross revenues in excess of $250,000. Annually, the Re-
spondent in conducting its business, purchases and receives
goods valued in excess of $50,000 at its places of business in the
USVI directly from points located outside the USVI, and from
other enterprises located within the USVI, each of which re-
ceives the goods directly from points outside the USVI. The Re-
spondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Factual Background
The Respondent admits and I find that the following employ-
ees constitute a unit appropriate for bargaining within the mean-
ing of Section 9(b) of the Act:
All crewmen employed by the Respondent at its place of busi-
ness located in the United States Virgin Islands.
On May 1, 1998, the Board certified the Union as the exclusive
representative of Respondent’s employees for the purposes of
collective bargaining within the meaning of Section 9(a) of the
Act.5 At all material times since May 1, 1998, the Union has
been the exclusive collective-bargaining representative of the
unit described above.
The parties stipulated, and I find, that Loredon Boynes, the
Respondent’s president, and Kenrick Augustus, the Respond-
ent’s general manager, are supervisors within the meaning of
Section 2(11) of the Act and agents within the meaning of Sec-
tion 2(13) of the Act.
The Respondent and the Charging Party Union have been par-
ties to a collective-bargaining agreement covering the terms and
conditions of employment of the unit, which was originally in
effect by its terms from September 1, 2006 through August 31,
2009 (the CBA). (Jt. Exh. 1.) Since August 31, 2009, the CBA
4 Although there was some discussion in the record relating to the
Respondent’s role as one of two contracted providers of public transpor-
tation on behalf of the government of the U.S. Virgin Islands, there is no
dispute that the Respondent is a privately-owned company, subject to the
Board’s jurisdiction.
5 The unit description in the 1998 certification of representative is
slightly different from the one the parties have stipulated to in this record.
(Compare GC Exh. 2 and Jt. Exh. 24 at 2.) The present unit description
is expressly set forth in the CBA executed by the Respondent and Union
in 2007, and which has remained in effect since then.(See Jt. Exh. 1 at 1
and Jt. Exh. 24 at 2–3).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has been extended and remains in effect by mutual agreement of
the parties. The Respondent and the Charging Party describe
their current extension of the terms of the CBA as a “day to day”
extension, pursuant to which both parties reserve the right to dis-
continue the CBA upon one day’s notice to the other party. The
Respondent and the Charging Party are engaged in negotiations
for a successor collective-bargaining agreement. The Respond-
ent and the Charging Party admit, and all parties stipulate, that
the CBA has been in full effect and valid during all times mate-
rial to this matter, including from January 1, 2017, to the hearing
date, August 30, 2018, and that at no time has either party termi-
nated the extension of the CBA. (Jt. Exh. 24.)
The CBA contains the following grievance-arbitration provi-
sion (Jt. Exh. 1 at 8–10):
Article XI: Grievance and Arbitration Procedures
Section 1. Grievances are any disputes, complaints or contro-
versies arising between the parties hereto related to, arising out
of, or about or involving questions of an alleged violation, in-
terpretation, application or performance of any article or arti-
cles of this Agreement.
Section 2. If a grievance as herein defined should arise, an hon-
est effort shall be made to settle such difficulties promptly in
the manner outlined in the following steps:
Step 1. The matter will first be discussed between the
aggrieved employee and employees, the employees’
immediate supervisor and the Shop Steward, not later
than two (2) working days after its occurrence. The Su-
pervisor shall advise the employee and the Shop Stew-
ard, of his decision within two (2) working days after
the discussion has taken place.
Step 2. If the grievance is not satisfactorily adjusted in
step 1 above, the matter shall be reduced to writing and
presented to the Company’s top management within
five (5) work days from the date the grievance arose.
Top management shall meet with the Union official, the
grievant, the Shop Steward and the Supervisor within
two (2) work days after the presentation. Within five (5)
work days after the meeting, top management shall ad-
vise the Union of their decision in writing.
Step 3. If top management’s decision is not satisfactory
to the Union, within five (5) days after the receipt of that
decision, the Union may present top management with
a written demand for arbitration signed by a Union Of-
ficial. When a demand for arbitration is presented, ei-
ther party shall have the right to request Federal Medi-
ation and Conciliation Services (FMCS) to provide the
parties with a panel of seven (7) impartial Federal ar-
bitrators. Thereafter, each party shall strike three
names and the person last appearing on the list shall be
designated as the arbitrator and his appointment shall
be binding on both parties. (Emphasis added.)

6 The grievant in this earlier arbitration was also Alvis Emanuel, the
employee on whose behalf the Union seeks arbitration in this case.
Section 4. The arbitrator shall set a date and the time for the
hearing of the grievance and must notify the parties no less than
ten (10) working days in advance of said hearing.
Section 5. Any decision or award of an arbitrator rendered
within the limitations of the above sections shall be final and
binding on the Union, the employees, and the Company and
enforceable in any court of competent jurisdiction.
Section 6. Only the Employer and the Union shall have right to
request arbitration.
Section 7. The fees and expenses of the arbitrator (including the
cost of a transcript where mutually agreed) shall be equally di-
vided between the Union and the Employer. Otherwise, each
party shall pay its own expenses. Employees called to the arbi-
tration as witnesses will be excused by the Company without
loss of pay in a manner which will duly disrupt the operations
of the Company [sic]. (Emphasis added.)
Union Vice President Eugene Irish testified that the above griev-
ance-arbitration language has been unchanged since he began
working for the Union in 1999. In practice, once a grievance is
timely filed, the union representative and the Respondent’s rep-
resentative meet to discuss the grievance, and the Respondent
must file a written response. If the Union is not satisfied, it can
take the grievance to the next step and, ultimately, can demand
arbitration. If the Union and the supervisor cannot meet at the
first step, the parties go to the second step and meet with upper
management, here, the general manager, Augustus. If the griev-
ance is not resolved at the second step, upper management pre-
sents a written response following the grievance meeting, and
then the union representative presents a summary report to Irish
for review and determination whether to demand arbitration.
Irish consults with the Union’s legal representative. Then, Irish
makes a final determination regarding whether to arbitrate the
dispute, pursuant to the procedures in the CBA. Demanding ar-
bitration involves notice to the Respondent and requesting a
panel of seven arbitrators from the FMCS, and each side striking
three from the list.
In the past 12 to 15 years, the Union and the Respondent have
arbitrated only one grievance, although the Union has demanded
arbitration in several cases that were resolved before arbitration.
The arbitrated case concerned a discharge.6 Ultimately, the ar-
bitrator found for the Union in that grievance and awarded the
grievant reinstatement and backpay. That arbitrator was from
the mainland U.S. and the arbitration was held in person in the
U.S. Virgin Islands. The parties have never chosen arbitrators in
a manner different from that described in the CBA.
Grievance no. 049-16 (2-week suspension of Emanuel)
Pursuant to the grievance-arbitration provisions in the CBA,
on December 27, 2016, Union Representative Kevin Challenger
filed a grievance with General Manager Augustus on behalf of
employee Alvis Emanuel (Grievance No. 049-16) regarding a 2-
week suspension of Emanuel for alleged poor performance
and/or insubordination. (Jt. Exh. 2; R. Exh. 2.)7 The grievance
7 The record suggests there is some dispute regarding the underlying
reasons for the 2-week suspension. I find it unnecessary to make factual
TRANSPORTATION SERVICES OF ST. JOHN, INC. 5
seeks make whole relief for employee Emanuel, citing article
XVIII, Section 7 of the CBA, a provision requiring “just cause”
for discipline. (Jt. Exh. 1 at 15.)8 The same day, Challenger re-
quested a copy of all evidence collected during the Respondent’s
investigation that led to the suspension. (Jt. Exh. 2.)
On January 5, Challenger met with Boynes, Augustus, and
Emanuel to discuss the grievance. (Jt. Exh. 2.) The CBA re-
quires a written response within 5 days of the grievance meeting
with top management. The Respondent did not provide a written
response to the January 5 grievance meeting until at least March
3. A letter dated March 3 was sent from Augustus on behalf of
the Respondent to Challenger denying the grievance about
Emanuel’s suspension. The Union did not receive a prompt writ-
ten response from the Respondent, despite Challenger’s attempts
to follow up with the Respondent by calling Augustus and leav-
ing a message with his secretary. Challenger recalled that the
secretary indicated that Augustus would call him back, although
that did not happen. Believing a written response was past due
to the Union pursuant to the CBA provisions, Challenger sub-
mitted a report to Irish, for him to consider how to proceed. (GC
Exh. 3.) Submitting a report to Irish was consistent with the Un-
ion’s practice to have the union vice president consider whether
to take a grievance to the third step, following a grievance meet-
ing with upper management. After consulting legal counsel,
Irish determined that the grievance should go forward on the
merits, and he turned it over to the Union’s legal counsel, John
Merchant, to handle the arbitration. On February 16, Merchant
sent a letter to Boynes, laying out the chronology of the griev-
ance as he knew it, and demanding arbitration. (Jt. Exh. 3.) That
same day, to begin the arbitration process, as outlined in the
CBA, Merchant applied to the Federal Mediation and Concilia-
tion Services (FMCS) for a list of seven arbitrators. (Jt. Exh. 4.)
In response, on March 8, the FMCS sent a “panel” or list of seven
arbitrators to both Merchant and Boynes, with some instructions
regarding how to proceed.
Dispute about the selection of arbitrators
Between March 10 and May 19, Merchant and Hodge ex-
changed correspondence through mail, fax, and electronic mail
that addressed concerns regarding the status and procedure for
the requested arbitration, and, specifically, regarding the parties’
positions regarding the selection of arbitrators pursuant to the
CBA. (Jt. Exhs. 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, and 19.) This
correspondence is summarized below.
On March 10, by letter, Hodge asserted that the Respondent
contested whether the grievance was “ripe” for arbitration, as-
serting that the grievance referred to the wrong section of the
CBA, disputing the chronology of events leading to the filing,
and stating that the Respondent did not believe it had “waived
any rights” under the CBA. (Jt. Exh. 7.) On March 23, Merchant,

findings regarding any record evidence related to the merits of the un-
derlying grievance in order to rule on the issues in this case.
8 At times in the record, the Respondent suggests that the grievance
refers to the wrong section of the CBA. (See Jt. Exh. 11 and GC Exh.
1(i).) The CBA appears to have a pagination error, an editing error, or
perhaps unusual organization in art. XVIII. (Jt. Exh. 1 at 15.) The griev-
ance, as written, refers to a section of the CBA that may be relevant to
the issues. I find that it has not been shown to be frivolous or otherwise
by letter, cited “just cause” language in the section of the CBA
cited in the grievance, and explained that a grievance meeting
with President Boynes was held on January 5, in accord with the
grievance procedure, and that “to date,” top management had
failed to advise the Union in writing of its decision, despite the
Union “following up.” Merchant further suggested three options
for going forward: 1) arbitrate the grievance as proposed; 2) re-
scind the discipline and suspension by stipulated agreement; or
3) litigate whether the company acted in good faith in observing
the due process requirements of the CBA at the NLRB, and then
arbitrate the suspension. (Jt. Exh. 8.)
On April 5, Merchant again wrote to Hodge, identifying that
the Union had selected three of the seven arbitrators to eliminate
from the panel provided by the FMCS, asking for the company’s
response regarding the remaining names, and offering to provide
FMCS with the name of the last remaining arbitrator on the list.
(Jt. Exh. 10.) Also on April 5, Hodge emailed Merchant stating
she had written him recently, asking him to confirm the receipt
of the prior correspondence as she was unsure whether the fax
went through, and stating she would review his letter and “pro-
ceed as appropriate.” (Jt. Exh. 11.)
Hodge attached a March 24 letter to her April 5 email, which
appears to be responding to the Union’s March 23 letter. It states
that Hodge hopes that they will be able to resolve any misunder-
standing by mutual agreement. It acknowledges that the CBA
has been extended by mutual agreement and that negotiations are
currently in progress toward a new agreement. It further states
that the “just cause” language referenced by Merchant indeed
exists in the CBA in the article cited in the grievance, but that
the company believes that section is inapplicable because Eman-
uel’s suspension did not involve “Sick Leave,” which she inter-
prets the section to be about. She further states that the company
does not dispute that the CBA does provided elsewhere that sus-
pensions must be based on “just cause,” citing, article XXII, and
confirms that the Company “does not dispute that suspension
without just cause is a legitimate basis for a grievance.” (Jt. Exh.
11 at 3.) She contends that the Union did not comply with the
procedural requirements of the contract in this grievance, with-
out providing any additional specifics. She asserts that the com-
pany actually responded to the Union in writing on March 3, ad-
vising that it had denied the grievance and enclosing that letter,
which is addressed to Challenger and signed by Augustus. (Jt.
Exh 11 at 5.) She also states the following:
We also wish to note our concern that moving this mat-
ter to federal arbitration as this point is a step that involves
a costly dispute resolution mechanism, particularly for a
small Virgin Islands company. The Company is not pre-
pared to rescind the discipline or suspension, which it con-
siders entirely proper. Therefore, if the union considers this
deficient on its face, and that the parties understood that the grievance
addressed the appropriateness of the 2-week suspension pursuant to a
“just cause” provision. (Jt. Exh. 11 at 3.) Whether the grievance is suf-
ficiently precise and otherwise substantively meritorious is a question for
an arbitrator. Except to find that, on its face, the grievance appears to
raise an issue cognizable under the CBA, I do not reach this contractual
interpretation question, which is not necessary to rule on the complaint
allegations.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a matter warranting federal arbitration, we will proceed
with that process. We have not engaged in the process pre-
viously, and will have to seek guidance from that agency on
the specifics of the process for remote participant.
As an alternative, we ask that you consider a local me-
diation and a locale mediator, to limit costs. If you are will-
ing to do so, we will await further word from you on that
suggestion. If not, we will address further communications
to the FMCS. . . . (Jt. Exh. 11 at 4.)
On April 6, by letter, Merchant responded by first asserting
that the Respondent’s April 6 letter enclosing a March 24 letter,
which itself enclosed a March 3 letter, reflected a pattern of the
Respondent’s “resort to bad faith and evasive tactics,” while the
Union was being straight forward, and was “determined to have
a full disposition of this grievance before a labor arbitrator.” (Jt.
Exh. 12.) He confirmed receipt on April 5 of the March 3 letter
upholding management’s decision to deny Emanuel’s grievance.
His letter repeats that the Union demands arbitration, even
though he believes the Union’s arbitration demand was already
clear, recorded, and proper. It further states that Hodge’s per-
ceived deficiencies in the grievance “can best be decided by the
arbitrator or the [B]oard.” (Jt. Exh. 12.)
Also on April 6, Hodge requested the resumes of the seven
arbitrators identified by FMCS. Hodge stated, “As you are not
willing to use a local mediation service, we will proceed with the
federal process…” but they needed the materials. (Jt. Exh. 13.)
Merchant, by email, sent Hodge the materials shortly after re-
ceiving Hodge’s request.
On the morning of April 7, Merchant and Hodge exchanged
several emails. (Jt. Exh. 14.) Merchant told Hodge that, once she
had selected from the remaining arbitrators, he would consult
with Irish about her suggestion that they find a local arbitrator.
He also cautioned about a perception that local arbitrators may
be biased or there may be a perception of bias that may erode
confidence in the process; he also noted selecting a local arbitra-
tor might be a cumbersome and drawn out process. He further
suggested that if they proceed with the FMCS, they should have
a prehearing meeting to constructively discuss the matter and
possible settlement. Hodge responded by asking what his posi-
tion would be on conducting the arbitration hearing by Skype or
other remote means to avoid paying an arbitrator’s daily rate and
travel expenses to the Virgin Islands to avoid costs; she also
asked if Merchant had experience with a hearing by remote tech-
nology. Merchant responded that he would discuss it with Irish,
but that they did not have much experience with that; he sug-
gested that it might be hard for an arbitrator to properly “read”
witness testimony by video conference. Hodge agreed that a
video conference would not be a “perfect equivalent” to an in-
person hearing, but that she thought that “the cost considerations
are a valid factor when the amount in controversy is not that
large.” (Jt. Exh. 14 at 1.) She expressed appreciation for his will-
ingness to raise the issue with Irish and stated that she would
review the resumes of the remaining candidates and would let
him know as soon as that is done.
On April 11, by letter, Hodge responded to the April 6 letter,
enclosing proof of service by fax of the March 3 letter to the Un-
ion on March 3 and a record of receipt of the fax. The letter
suggests Merchant should apologize for his suggestion that the
company acted in bad faith, and further states that Hodge hopes
the Union is not acting in bad faith. Hodge also stated the fol-
lowing:
We continue to review the list of proposed arbitrators, as we
continue to await word on our very reasonable request that you
agree that if this matter is to be subject to arbitration under the
FMCS, that the parties agree this be done by [S]kype, vide-
oconference or telephone … to control the excessive costs as-
sociated with dispute resolution in the territory for a modest
amount in dispute. (Jt. Exh. 15.)
On May 8, Merchant responded to Hodge by letter, stating that
the Union did not agree to hold the hearing by Skype, videocon-
ference, or other dial-in means, because the Union believed is-
sues in this discipline case would require that the arbitrator ob-
serve the witness in person. Merchant notes that perhaps in a
case that was merely a contract dispute, rather than a dispute rais-
ing the “just cause” for discipline provisions, the Union could
consider resorting to such measures to limit costs. He stated that,
“[t]he simplest way to cut costs, of course, would be to rescind
the wrongful discipline and reinstate Mr. Emanuel any docked
pay.” (Jt. Exh. 17.) He further stated that although Augustus’
March 30th (stet) letter failed to directly reach Challenger, it still
was 90 days after the January 5 meeting. Merchant then asked
Hodge to select an arbitrator and either notify the arbitrator of
the appointment or notify Merchant who would do so.
On May 16, Hodge responded:
First, there is no reasonable justification for your refusal to con-
sider a cost-savings means of conducting an arbitration in the
U.S. Virgin Islands, with a stateside arbitrator where the cost
of travel alone would dwarf the amount in controversy, so that
the arbitrator may “consider the witnesses ‘physical comport-
ment.’” (Jt. Exh. 18.)
Hodge asserted that witnesses routinely testify in federal and su-
perior court by video. She also renewed her request that the Un-
ion “consider that request in good faith, and without resort to
veiled threat that the only way to avoid the punitive expense is
for the employer to capitulate.” (Jt. Exh. 18 at 1.) She further
asserted that his comment about a March 30 letter was inaccu-
rate, as there was no March 30 letter, only a March 3 letter, ex-
pressing skepticism that the Union did not receive it on March 3.
Hodge reported that they were reviewing the prospect of a re-
quest to FMCS on the issue of financially reasonable means of
conducting the arbitration and would copy Merchant on that cor-
respondence. In addition, Hodge’s letter states:
We also continue to review the available candidates, and note
that we are informed there is at least one arbitrator resident in
St. Thomas who has been accepted by the United Steelworkers
for similar arbitrations, at a far more reasonable cost. Finally,
we are conferring about involving a labor law specialist as it
appears the Union is not prepared to be reasonable about the
process of resolving this grievance, and may be attempting to
take advantage of our positions as general practitioners with lit-
tle background in labor law. (Jt. Exh. 18 at 2.)
On May 19, Merchant responded by letter. (Jt. Exh. 19.) He
TRANSPORTATION SERVICES OF ST. JOHN, INC. 7
first explained that although his prior reference to a March 30
letter was a mistaken reference to the March 3 letter, Augustus’
March 3 “written decision” arrived 19 days after Merchant
served the company with a demand for arbitration. He then re-
jected the suggestion that bringing the grievance involves a
threat, explaining that the fact that the arbitration process carries
a cost is not coercive or unfair, it was bargained for, and, in gen-
eral, is a less costly dispute resolution process than lawsuits. He
asserted that it is “patently unreasonable” for the Respondent to
resist arbitrating on this rare occasion. Merchant offered to ask
the arbitrator to hear a second grievance for which it had de-
manded arbitration at the same time, to attempt to limit costs.
Merchant noted that the FMCS has provided another list of seven
arbitrators related to that grievance, and he listed the three arbi-
trators the Union struck from the second list of arbitrators. Mer-
chant also stated that the Respondent’s desire to consult a labor
specialist does not justify any more delay in the process. He ad-
vised that, once selected, the arbitrator can consider prehearing
motions, including the Respondent’s request for a meeting by
videoconference, which the Union may oppose. He concluded,
“[i]n short, please let us get on with it and choose an arbitrator.”
(Jt. Exh. 19.)
In early June, Hodge corresponded with Arthur Pearlstein, di-
rector of arbitration at FMCS, copying Merchant on the corre-
spondence. Hodge explained the Respondent’s concerns about
costs of engaging a stateside arbitrator and requested a new panel
of arbitrators from the U.S. Virgin Islands or Puerto Rico. She
notes that “[c]learly, the expense of air travel and hotel accom-
modations associated with bringing one of the arbitrators on the
current list of possible arbitrators to the territory would exceed
the total amount in dispute.” (Jt. Exh. 20 at 2.) Pearlstein ex-
plained that FMCS can only provide panels of arbitrators from
their roster, and there are currently no arbitrators on their list
from the Virgin Islands and only one from Puerto Rico. (Jt. Exh.
21.) He noted that the request for arbitrators was a “regional re-
quest” and the list was generated randomly from the states in her
region. Pearlstein stated that “[i]f your collective bargaining
agreement provides for something different, please share the rel-
evant part and I will be glad to review.” (Jt. Exh. 21.) Hodge
responded by asking Pearlstein why FMCS does not have any
arbitrators from the Virgin Islands on its lists, as there are AAA
certified arbitrators there. (Jt. Exh. 22.) Pearlstein responded that
Hodge raised a good question, and explained that to be on the
roster, arbitrators had to apply, which was free of charge. He
offered that he would invite the arbitrators she knows to apply,
if she forwards their contact information. (Jt. Exh. 23.)
The Respondent did not strike three arbitrators from the panel
of seven arbitrators provided by FMCS, which would have re-
sulted in the selection, by process of elimination, of an arbitrator
pursuant to the procedure outlined in the CBA, article XI.
Irish testified that he did not instruct union representatives or
counsel to simply reject all of the Respondent’s proposals to
change the manner of selection of an arbitrator, which Hodge
presented to the Union in attempts to avoid the perceived cost of
arbitration, such as using a local mediator to hold the arbitration
rather than the selection process in the CBA or holding the hear-
ing by Skype to avoid travel costs of an arbitrator from the main-
land. Irish considered the proposals and discussed them with
counsel, and took the position that the CBA does not provide for
those alternative methods of selecting arbitrators or holding an
arbitration hearing, and that the changes to the arbitration provi-
sion in the CBA should be addressed in the parties’ negotiations
for a successor collective-bargaining agreement. In fact, the is-
sue had been raised in collective bargaining by Hodge as early
as 2015, but the parties had yet to reach agreement on that issue
or an overall agreement on a successor CBA. He further ex-
pressed his belief that he would not be serving his members cor-
rectly if he did not follow the terms of the CBA.
Respondent’s President Boynes and General Manager Augus-
tus testified regarding the Respondent’s position about selection
of an arbitrator in the grievance about Emanuel’s 2-week sus-
pension (Grievance No. 049-16). Boynes testified that, after the
hurricane damage in Fall 2017 where it lost some vessels and the
general economy was negatively affected, its business has faced
financial challenges. Boynes testified that his financial situation
is such that he cannot afford an expensive arbitration. Boynes
stated that he was willing to arbitrate the 2-week suspension, if
it could be done by a local arbitrator or by a remote proceeding.
However, Boynes also testified that he had no knowledge about
the potential cost of the arbitration; instead he relied on his attor-
ney and general manger regarding cost analyses and figures.
Augustus testified that he did not tell the Union that the Re-
spondent refused to arbitrate. In 2015, he spoke with Irish about
trying to find a cheaper way to do arbitration, such as using
Skype or a local arbitrator, and Irish said they needed to negoti-
ate that. Nothing more came of that discussion, although it did
come up in contract negotiations. Augustus stated that he be-
lieves that arbitration is supposed to be the least expensive way
to resolve disputes but believed that the selection process in the
CBA was not reasonable if interpreted to require a state-side ar-
bitrator. Augustus did not perform a cost analysis to determine
how much the arbitration of the 2-week suspension would cost.
His comptroller “looked at it” and a figure of $10,000 was iden-
tified, although Augustus was unaware of the basis of that figure.
The need to arbitrate multiple grievances could have economic
consequences in the future, although Augustus testified that he
does not assume there will be multiple arbitrations in the future.
He stated that he recognizes that there has been only one case
taken to arbitration in 12–15 years, other than the present one.
For business planning, Augustus believes that considering the
cost of arbitration is appropriate, as saving money would allow
the company to be more profitable. He does not believe that the
grievance arbitration provision in the CBA is “viable” if it is in-
terpreted to require state-side arbitrators.
Neither Boynes nor Augustus selected an arbitrator from the
list provided to them by the FMCS. They never evaluated the
potential cost of particular arbitrators on the list.
Grievance no. 008-17 (Emanuel’s loss of wages
during bargaining
On March 28, the Union filed a second grievance (No. 008-
17) claiming that the Respondent had failed to pay Emanuel for
the days he participated in contract negotiations as a member of
the Union’s bargaining team, which the Union alleged was
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inconsistent with past practice. (GC Exh. 4.)9 The Union initially
demanded arbitration on this grievance and requested a panel of
arbitrators from FMCS. On April 18, FMCS provided the Union
and the Respondent with a separate panel of seven arbitrators for
the second grievance. As noted above, on May 19, Merchant no-
tified Hodge that the Union had selected three arbitrators to
strike from this second panel. He further offered to have the two
grievances heard together with one arbitrator, to accommodate
the Respondent’s concern for the expenses of arbitration. (Jt.
Exh. 19.) Following this correspondence, the Union determined
it would not pursue the grievance regarding payment for Eman-
uel’s time in contract negotiations, because the Union deter-
mined it was time-barred. The Respondent did not select arbi-
trators to strike from this second panel.
Analysis
A. Did the Respondent Unlawfully Fail to Continue in Effect the
Terms of the CBA, and Fail to Bargain in Good Faith, Within
the Meaning of Section 8(d), in Violation of Section 8(a)(5)
and (1)?
The question presented is whether the Respondent violated
Section 8(a)(5) and (1) within the meaning of Section 8(d) by
refusing to follow the grievance-arbitration provision in the par-
ties’ collective-bargaining agreement when it refused to select
from a list of arbitrators presented according the procedures in
article XI of the CBA, after the Union did not consent to the Re-
spondent’s proposal of a midterm modification of the CBA
terms. The Respondent asserted that the modifications would be
significantly less costly than the express terms of the CBA. Sec-
tion 8(d) establishes that the duty to bargain includes the obliga-
tion to bargain in good faith about terms and conditions of em-
ployment. It establishes that, once executed, parties are obliged
to continue to abide by the terms and conditions of an existing
collective-bargaining agreement between the parties. Section
8(d) makes clear that one party may not change terms and con-
ditions of employment set forth in a collective-bargaining agree-
ment during the term of the contract without the consent of the
other party. An employer who modifies the contract regarding
mandatory subjects of bargaining without the union’s consent vi-
olates Section 8(a)(5) and (1) of the Act. See C&S Industries,
158 NLRB 454, 456–459 (1966); and Mead Corp., 318 NLRB
201, 202 (1995). Upon a showing that an employer has modified
a contract provision without the union’s consent, the employer
may justify the modification by demonstrating that the employer
had a “sound arguable basis” for interpreting the language of the
contract to permit the modification. Bath Iron Works Corp., 345
NLRB 499, 501–502 (2005), affd. sub nom. Bath Marine
Draftsmen's Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007). See
Hospital San Carlos Borromeo, 355 NLRB 153 (2010), and San
Juan Bautista Medical Center, 356 NLRB 736 (2011).
The Board distinguishes between conduct that violates the
terms of a collective-bargaining agreement from conduct that re-
veals that a party has modified a contract provision during the
term of the collective-bargaining agreement without the consent

9 The Union also filed an unfair labor practice charge related to this
allegation, which the Union withdrew without prejudice, following an
initial investigation by the Board. (R. Exh. 3.)
of the other party. Bath Iron Works, above; see also NCR Corp.,
271 NLRB 1212, 1213 (1984). As a general proposition, a mere
contract violation will not be found to violate Section 8(a)(5) un-
less it demonstrates a repudiation of the contract. However, a
midterm modification of a contract provision regarding a man-
datory subject of bargaining without the union’s consent will vi-
olate Section 8(a)(5). A grievance-arbitration procedure is a
mandatory subject of bargaining. An employer's refusal to take
all, or even most, grievances to arbitration pursuant to a griev-
ance-arbitration provision in a valid collective-bargaining agree-
ment violates Section 8(a)(5). See GAF Corp., 265 NLRB 1361,
1364–1365 (1982); Independent Stave Co., 233 NLRB 1202,
1204 (1977). The Board has found that an employer’s refusal to
arbitrate a single grievance or a narrow category of grievances
does not necessarily violate the Act. See, e.g., Whiting Roll Up
Door Mfg. Corp., 257 NLRB 734, 734 fn. 2 (1981), and cases
cited therein. Similarly, if an employer insists on preconditions
to arbitration that are not set forth in the parties’ collective-bar-
gaining agreement, the Board will find the employer engaged in
an unlawful midterm modification of the contract. See Wire
Products Mfg. Corp., 329 NLRB 155 (1999). When deciding
whether refusals to arbitrate violate the Act, the Board considers
whether the employer by its conduct has unilaterally modified
contractual terms during the effective period of the contract.
Southwestern Electric, 274 NLRB 922, 926 (1985).
First, the parties have stipulated, and the record makes clear,
that the terms of the parties’ CBA were in effect during all times
material to this case. More specifically, article XI of the CBA,
the grievance-arbitration procedures, was in effect when the un-
derlying events that led to Emanuel’s 2-week suspension oc-
curred, and when the union invoked its rights under the CBA to
seek arbitration of its claim that Emanuel’s discipline violated
the CBA.
Second, the record establishes that the Respondent refused to
meet its obligations under article XI when it insisted on the right
to unilaterally determine that the monetary value of the grievance
does not warrant the cost of the arbitration, and requiring under
those circumstances that the Union consent to changing the lan-
guage article XI of the CBA to accommodate the Respondent’s
desire for a different arbitrator selection process than the one ex-
pressly provided for in the CBA. The language of the contract
does not authorize the Respondent’s proposed limitations on ar-
bitration to either insist on a local arbitrator from the Virgin Is-
lands, or to insist on holding the arbitration by video or telecon-
ference. The terms of the CBA require that, after the Union’s
demand for arbitration and the request for a panel of seven arbi-
trators explicitly from the FMCS, “each party shall strike three
names and the person last appearing on the list shall be desig-
nated as the arbitrator and his appointment shall be binding on
both parties.” (emphasis added.) Nothing in the agreed-to griev-
ance-arbitration provision entitles the Respondent to refuse to
follow this provision due to anticipated costs of the arbitration.
Indeed, the grievance-arbitration provision addresses the alloca-
tion of costs between the parties, without contemplating any
TRANSPORTATION SERVICES OF ST. JOHN, INC. 9
alternative to the affirmative requirement to select arbitrators
based on costs. Nothing in the agreement permits the Respond-
ent to refuse to arbitrate a grievance because the Union does not
consent to a different method of selection of an arbitrator than
the procedures set forth in the CBA. Nothing in the agreement
permits the Respondent to refuse to follow the grievance-arbitra-
tion procedures because it unilaterally preferred using a local ar-
bitrator not affiliated with FMCS or to unilaterally insist that the
hearing be held by video or teleconference. The Union consid-
ered these proposed changes and declined to consent to them.
Third, although at times in the record the Respondent suggests
that the Union failed to follow the terms of the grievance-arbi-
tration agreement, those suggestions are vague and generalized.
As noted above, the Respondent failed to file a brief. I have
found, without reaching the substance of the merits of the griev-
ance, that, on its face, the grievance filed appears to state a col-
orable claim appropriate for arbitration under the CBA. I further
find that there is sufficient evidence in the record to infer that the
grievance was timely filed. This record does not establish any
obvious procedural defects that would entitle the Respondent to
refuse to arbitrate, and the Respondent failed to articulate any for
me to consider. Moreover, the record as a whole establishes that
the Respondent agreed to arbitrate, albeit only if the Union con-
sented to terms different from those in the CBA.
Fourth, the record establishes that the Respondent refused to
arbitrate any cases based on the Respondent’s unilateral determi-
nation that the monetary value of a grievance does not warrant
the cost of the arbitration, unless the Union would consent to
changing the agreed-to procedures in article XI of the CBA to
accommodate the Respondent’s desire for a different procedures
than those expressly provided for in the CBA. Although the ev-
idence involves only one valid grievance, the Respondent’s ac-
tions and statements in the record make clear that it intends to
apply the modification generally. Its unilateral determination of
the value of a grievance weighed against its unilateral conjecture
about anticipated cost of arbitration will determine whether the
Respondent will follow the agreed-to grievance-arbitration pro-
cedure in article XI of the CBA. Therefore, this is not a situation
that would affect only a narrow category of grievance.10 Com-
pare: GAF Corp., above (employer’s refusal to arbitrate pension
calculation dispute did not violate Section 8(a)(5), where em-
ployer did not repudiate the arbitration provision of the CBA
generally and the employer sought to resolve the dispute pursu-
ant to dispute mechanisms available in the agreed-to pension

10 I do not rely on the General Counsel’s argument that the Respond-
ent’s failure to select an arbitrator from the FMCS panel in the second
grievance (No. 008-17) supports a finding that the Respondent refused
to arbitrate at least two grievances of different types. The Union deter-
mined that the second grievance (regarding the failure to pay Emanuel
for his participation in contract negotiations) was not viable and dropped
it. Therefore, I find it only marginally relevant that the Respondent failed
to follow the arbitration selection process in grievance No. 008-17. As
explained above, however, I agree that the Respondent did not limit its
refusal to arbitrate to a specifically defined or narrow class of grievances
that might excuse its conduct under Board precedent. Instead the record
shows that Respondent intends to unilaterally impose this same condition
on all grievances going forward.
plan) and Velan Valve Corp., 316 NLRB 1273 (1995)(em-
ployer’s refusal to arbitrate one grievance based on an interpre-
tation that it was untimely did not violate 8(a)(5), because it re-
flected, at most, an intent to refuse to arbitrate the narrow class
of grievance the employer believed were untimely under the
CBA), with Southwestern Electric, above (employer’s refusal to
arbitrate two grievance because they were not in writing consti-
tuted unlawful midterm modification in violation of Section
8(a)(5), where modification would continue to impede pro-
cessing of other grievances).
Thus, the Respondent’s refusal to follow the arbitration provi-
sion reflects a midterm modification regarding a mandatory sub-
ject of bargaining without the Union’s consent. The Respondent,
at its discretion, expects to determine when an arbitration will or
won’t be cost-effective, and will, at its discretion, refuse to select
arbitrators in the manner set forth in the CBA, if it determines
that the process would be too expensive, unless the Union agrees
to a modification to the CBA to accommodate the Respondent’s
desire to limit costs. The evidence provides no basis for con-
cluding that Respondent's refusal to arbitrate according to the
terms of the CBA was narrowly grounded. By placing this pre-
condition on processing grievances to arbitration, the Respond-
ent has repudiated the grievance-arbitration provision of the
CBA.
Finally, it is immaterial how “reasonable” the Respondent’s
proposed changes may have been. The Union was under no ob-
ligation to agree to changes during the term of the CBA.11 Alt-
hough the Respondent presented some evidence that it believed
its proposed contract modifications were reasonable, it failed to
establish any sound, arguable basis to believe that the language
of the CBA entitled it to insist on limiting the application of the
arbitration provisions to claims that the Respondent would find
financially worthy of arbitration. To the contrary, the record
shows that the Respondent sought the Union’s consent to change
the procedures, not that it believed it was entitled under a reason-
able interpretation of the terms of contract to refuse to arbitrate
if the Union did not agree to changes to the procedures set forth
in the CBA. The Union was simply seeking the benefit of its
agreement with the Respondent. The Respondent’s suggestion
that it believed following the grievance-arbitration provisions
would be untenable financially going forward was unsupported
by the record, speculative, and inapposite to the current case.
The parties rarely sought arbitration, and the Respondent did not
establish that it was unable to afford the current grievance.12
11 Moreover, the record establishes that the Union did consider the
proposed changes and rejected them. It further establishes that the Union
suggested combining grievances to limit costs, and explained to the Re-
spondent that it would consider a video or teleconference hearing in a
case that only involved a straight contract question, rather than the “just
cause” issue in the present case, that the Union believed would necessi-
tate the arbitrator having live witness testimony.
12 The parties remained in negotiations for a successor collective-bar-
gaining agreement during times material to this case and had mutually
agreed to extend the terms of the agreement. Testimony at the hearing
revealed that the Respondent raised its concerns about the expenses of
applying the arbitration agreement and sought changes to accommodate
its concerns about costs, and the Union had not yet agreed to any
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Instead, the record establishes that the Respondent did not desire
to pay for this grievance and simply chose not to do so, based on
its unilateral determination that the monetary value of the griev-
ance did not warrant the cost of arbitration.
B. Respondent’s Affirmative Defenses
The Respondent did not file a posthearing brief in this matter.
It did raise or allude to certain affirmative defenses in its answer
to the complaint and referred to some at the hearing. (GC Exh.
1(i).) As explained below, I find that these defenses and argu-
ments lack merit.
In its answer, the Respondent raises that the complaint allega-
tion that the “Respondent has failed and refused to continue in
effect terms and conditions of employment” since March 21,
2017 cannot be supported by the amended charge, which was
filed March 7, 2018, and served March 8, 2018, more than 6
months after the date of the alleged violation. The Respondent’s
argument lacks merit. Importantly, the original charge was filed
July 7, 2017, well within the statute of limitations set forth in
Section 10(b) of the Act. The amended charge is almost identical
to the original charge, except that it refers to only one grievance
rather than two and includes a reference to Section 8(d).
Section 10(b) of the Act provides that “no complaint shall is-
sue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board.” How-
ever, the timely filing of a charge tolls the 10(b) time limitation
about matters subsequently alleged in an amended charge that
are “similar to, and arise out of the same course of conduct, as
those alleged in the timely filed charge.” Amended charges filed
outside the 6-month 10(b) period, “are deemed, for 10(b) pur-
poses, to relate back to the original charge.” See Apple SoCal
LLC, d/b/a Applebees, 367 NLRB No. 44 (2018), citing WGE
Federal Credit Union, 346 NLRB 982, 983 (2006) (quoting
Pankratz Forest Industries, 269 NLRB 33, 36–37 (1984), enfd.
mem. sub nom. Kelly-Goodwin Hardwood Co. v. NLRB, 762
F.2d 1018 (9th Cir. 1985)).
To determine whether an amended charge relates back to an
earlier charge for 10(b) purposes, the Board applies the “closely
related” test set forth in Redd-I, Inc., 290 NLRB 1115, 1118
(1988). Apple SoCal LLC, above. The Board considers (1)
whether the otherwise untimely allegations of the amended
charge involve the same legal theory as the allegations in the
timely charge, and (2) whether the otherwise untimely allega-
tions arise from the same factual situation or sequence of events
as the allegations in the timely charge. The Board may also con-
sider (3) whether a respondent would raise the same or similar
defenses to both the untimely and timely charge allegations.
Redd-I, above, cited in Apple SoCal LLC, above. Here, the alle-
gations in the amended charge arise from the very same facts and
events as the timely filed charge, alleging that the Respondent
unlawfully declined to participate in a grievance pursuant to its
obligations in the CBA, in violation of Section 8(a)(5). The only
new aspect of the amended charge is the addition of a legal the-
ory involving 8(d) of the Act, which construes the 8(a)(5)

changes. The parties had not reached overall agreement on a successor
CBA.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
violation as a midterm modification of the CBA, rather than a
unilateral change. Under either theory, the section of the Act lit-
igated is Section 8(a)(5) and the question is whether the failure
to follow the grievance procedure violated the Act. Although
some different defenses may be available under the two legal
theories, they are not so dissimilar to have denied the Respondent
adequate notice of allegations. Therefore, I find that there is no
10(b) bar to the complaint allegations based on the amended
charge.
The Respondent’s argument that the Union acted in bad faith
is not supported by the record. As I have discussed above, the
fact that the Union did not agree to the Respondent’s proposed
changes to the CBA does not constitute bad faith bargaining, as
the Union was not obliged to consent to any changes to the ex-
press terms of the CBA during the term of the contract pursuant
to Section 8(a)(d). See, e.g., APT Medical Transportation, Inc.,
333 NLRB 760, 764 (2001). I further find that the Respondent’s
insinuation that the Union engaged in bad faith—or worse—by
offering to settle the grievance to avoid the cost of arbitration is
not supported. The Respondent failed to present any evidence
that would support a finding of unlawful pressure by the Union.
The Respondent’s assertion that the Union’s actions were incon-
sistent with the standards of good faith and fair dealing pursuant
to the law of the Virgin Islands has no bearing on the Board’s
analysis in this context. Finally, as noted above, the record fails
to support the Respondent’s vague assertions that the Union did
not adhere to the grievance procedure.
For all the above reasons, I find that the Respondent has vio-
lated the Act as alleged in the complaint.
CONCLUSION OF LAW
By failing and refusing to continue in effect the terms of the
collective-bargaining agreement with the Union by refusing to
arbitrate grievances unless the Union consented to modifica-
tions, the Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and (1)
and 8(d), and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Thus, I shall order that the Respondent honor
the terms of its current collective-bargaining agreement with the
Union with respect to the processing of grievances and the selec-
tion of arbitrators, and, upon the Union’s request, to select arbi-
trators for the processing of the grievance arising from the sus-
pension of employee Emanuel (Grievance No. 049-16).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.13
ORDER
The Respondent, Transportation Services of St. John, Inc., St.
John, United States Virgin Islands, its officers, agents,
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.
TRANSPORTATION SERVICES OF ST. JOHN, INC. 11
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the
United, Industrial, Service, Transportation, Professional and
Government Workers of North America, of the Seafarers Inter-
national Union of North America, Atlantic, Gulf, Lakes and In-
land Waters District/NMU, AFL–CIO (the Union) as the exclu-
sive collective-bargaining representative of the employees in the
unit described in paragraph 2(a) below, by modifying the terms
of any collective-bargaining agreement entered into with the Un-
ion, without the Union’s consent.
(b) Failing and refusing to process the grievance filed by the
Union on December 27, 2017, concerning the suspension of Al-
vis Emanuel, by insisting on modifications to the grievance-ar-
bitration procedure without the Union’s consent, and failing to
select an arbitrator according to the terms of the CBA, article XI,
including refusing to select an arbitrator to avoid sharing the
costs of arbitration according to the CBA, without the Union’s
consent.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) While a collective-bargaining agreement is in effect by its
terms or by agreed-to extension, honor the terms of the collec-
tive-bargaining agreement with the Union, which covers em-
ployees in the following appropriate unit:
All crewmen employed by Respondent at its place of business
located in the United States Virgin Islands.
(b) Withdraw as a condition precedent to processing a
grievance to arbitration that the Union consent to a change
in the grievance-arbitration procedure to select a local ar-
bitrator, to hold an arbitration by video or teleconference,
or to limit the application of the grievance-arbitration pro-
cedure to those disputes that the Respondent unilaterally
determines are worth the expense of arbitration.
(c) Upon request, process grievances filed by the Union in
accord with the collective-bargaining agreement in effect, in-
cluding by selecting arbitrators according to the CBA, article XI
and by sharing the arbitration costs as set forth in the CBA.
(d) Process the grievance filed by the Union on December 27,
2017, concerning the suspension of employee Alvis Emanuel,
including by selecting an arbitrator pursuant to the CBA, article
XI, and by sharing the arbitration costs as set forth in the CBA.
(e) Within 14 days after service by the Region, post at its fa-
cilities in St. John, United States Virgin Islands copies of the at-
tached notice marked “Appendix”14 in both English and Spanish.
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

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if the Re-
spondent 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. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Re-
spondent at any time since March 8, 2017.
(f) 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 the
Respondent has taken to comply.
Dated, Washington, D.C., May 20, 2019
APPENDIX
NOTICE TT 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 fail or refuse to bargain in good faith with the
United, Industrial, Service, Transportation, Professional and
Government Workers of North America, of the Seafarers Inter-
national Union of North America, Atlantic, Gulf, Lakes and In-
land Waters District/NMU, AFL–CIO (the Union) as your ex-
clusive collective-bargaining representative.
WE WILL NOT insist on midterm modifications of the agreed-
to terms of a collective-bargaining agreement with any union
without the union’s consent.
WE WILL NOT fail or refuse to abide by the requirement to ar-
bitrate grievances as set forth in article XI of our collective-bar-
gaining agreement with the Union (CBA, art. XI), without the
Union’s consent, including the requirements to select an arbitra-
tor according to the CBA and to share the arbitration costs as set
forth in the CBA.
WE WILL NOT fail or refuse to process the grievance filed by
the Union on December 27, 2017, concerning the suspension of
Alvis Emanuel pursuant to CBA, art. XI, without the Union’s
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consent, including the requirements to select an arbitrator and to
pay our share of the arbitration costs, as set forth in the CBA,.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, while a collective-bargaining agreement remains in
effect, honor the terms of the agreement covering the terms and
conditions of employment, regarding our employees in the fol-
lowing bargaining unit:
All crewmen employed by Respondent at its place of business
located in the United States Virgin Islands.
WE WILL, upon request, process grievances filed by the Union
in accord with the collective-bargaining agreement in effect, in-
cluding WE WILL select arbitrators and pay our share of the arbi-
tration costs according to the terms of the CBA, article XI.
WE WILL, pursuant to CBA, article XI, process the grievance
filed by the Union on December 27, 2017, concerning the sus-
pension of employee Alvis Emanuel, including WE WILL select
arbitrators and pay our share of the arbitration costs according to
the terms of the CBA, article XI.
TRANSPORTATION SERVICES OF ST. JOHN
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-202248 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Exec-
utive Secretary, National Labor Relations Board, 1015 Half Street,
S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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