Matson Terminals

National Labor Relations Board - Administrative Judge Opinions

Oct 16, 2018

20-CA-188087 (N.L.R.B. Oct. 16, 2018)

JD(SF)-28-18
Honolulu, HI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH
MATSON TERMINALS, INC.
and Case 20–CA–188087
HAWAII TEAMSTERS & ALLIED WORKERS
UNION, LOCAL 996
Scott E. Hovey, Jr., Esq., for the General Counsel.
Barry W. Marr, Esq., and Christopher S. Yeh, Esq.,
of Marr Jones & Wang, LLP,
for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD M. ETCHINGHAM, Administrative Law Judge. This case was tried on June 19,
2018, in Honolulu, Hawaii. Thereafter, the parties filed briefs on July 24, 2018.1
This controversy concerns whether Matson Terminals, Inc. (Respondent) violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)2 when it transferred paperwork

1 The transcript in this case (Tr.) is mostly accurate, but at page 81, line 23: “times” should be
“hours;” and page 202, line 5: “MDTs” should be “MIAs.” Also, on July 27, 2018, I issued an order
granting the parties’ joint motion to correct the transcript at 35 additional instances. Other abbreviations
used in this decision are as follows: “GC Exh.” for the General Counsel’s exhibits; “R Exh.” for the
Respondent’s exhibits; “Jt. Exh.” for the joint exhibits; “GC Br.” for the General Counsel’s brief; and “R
Br.” for the Respondent’s brief. Although I have included numerous citations to the record to highlight
particular testimony or exhibits, my findings and conclusions are based not solely on the evidence
specifically cited, but rather on my review and consideration of the entire record.
2 I take administrative notice that after consideration of a stipulated record in Case 20-CA-178312
between the same Respondent and Union in the instant action (but a different unit and port location), and
the parties’ posthearing briefs, my colleague NLRB Administrative Law Judge Amita Baman Tracy
issued a decision earlier this year on February 20, 2018 finding that the same Respondent here violated
Section 8(a)(5) and (1) of the Act on or about June 3, 2016, by transferring barge menu work away from
the Union at Respondent’s Hilo, Hawaii port without providing the Union with notice and the opportunity
to bargain. Matson Terminals, Inc. (“Judge Tracy’s Findings”), JD(SF)-03-18 (February 20, 2018), with
exceptions and cross-exceptions fully briefed and currently pending before the Board.
JD(SF)-28-18
2
delivery work which was performed by employees represented by the Hawaii Teamsters &
Allied Workers Union, Local 996 (Charging Party or Union) to employees represented by
another labor organization without providing the Union prior notice and an opportunity to
bargain. Respondent defends its action by alleging that the transferred work was not material,
substantial, or significant and that Respondent was contractually obligated to have the work at 5
issue performed by these other employees. As discussed below, I find that Respondent violated
the Act as alleged.
In detail, the General Counsel alleges, in his March 23, 2018 complaint, based on a
charge filed by the Charging Party on November 14, 20163, that Respondent violated Section 10
8(a)(5) and (1) of the Act by failing to provide the Union with notice and an opportunity to
bargain over its decision to transfer paperwork delivery duties historically and traditionally
performed by union represented employees to different union represented employees.
Respondent filed a timely answer on April 6, 2018 denying the material allegations in the
complaint. 15
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent,4 I make the following
FINDINGS OF FACT20
I. JURISDICTION
I find that at all material times, the Respondent, a Hawaii corporation with offices and a
facility located in Honolulu, Hawaii (Honolulu facility), has been engaging in providing 25
stevedoring and terminal operations. Respondent admits and I further find that during the 12-
month period preceding issuance of the complaint, the Respondent, in conducting its Honolulu
facility, purchased and received goods valued in excess of $50,000 from points outside the State
of Hawaii. Respondent also further admits and I further find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the 30
Union is a labor organization within the meaning of Section 2(5) of the Act.
Based on the above, I find that these allegations affect commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
35
II. BACKGROUND: THE UNION AND RELEVANT LITIGATION HISTORY
Following the representation election held by mail ballot, the Union was certified on June
11, 2014, as the exclusive collective-bargaining representative of the employees in the following
appropriate unit:40
All full-time and regular part-time Container Vessel Stevedoring (CVS)
Superintendents, CVS Senior Superintendents, Container Yard (CY) Supervisors
and Yard Controllers employed by Matson Terminals, Inc. in its Honolulu,

3 All dates are 2016, unless otherwise indicated.
4 The Charging Party did not file a separate posthearing brief.
JD(SF)-28-18
3
Hawaii operation; excluding CVS Senior Superintendents who work at the
Employer’s Pier 2 operation, clerical employees, managerial employees, guards
and supervisors as defined by the Act (the Unit). (Jt. Exh. 1.)
The Union continues to be the exclusive collective bargaining representative of the unit 5
employees under Section 9(a) of the Act.
Thereafter, on July 3, 2014, the Union filed charge 20–CA–132200 alleging that
Respondent refused to recognize and bargain with the Union as the collective-bargaining
representative of the Unit and failed and refused to furnish the Union with requested information 10
regarding the terms and conditions of employment of employees in the Unit (“test of
certification”). (GC Exhs. 1(c) and 1(e).) On September 26, 2014, the Board issued a decision
and order in case 20–CA–132200 finding that Respondent violated Section 8(a)(5) and (1) of the
Act by Respondent’s failure and refusal to recognize and bargain with the Union and by failing
and refusing to furnish the Union with requested information regarding the terms and conditions 15
of employment of employees in the Unit, Matson Terminals, Inc., 361 NLRB No. 50 (2014)
(Not reported in Board volumes) (the 2014 Board decision). Thereafter, Respondent filed a
petition for review of the 2014 Board decision and the Board filed a cross-application for
enforcement of the 2014 Board decision with the District of Columbia Court of Appeals (“D.C.
Circuit”).20
On February 26, 2016, the D.C. Circuit enforced the 2014 Board decision in the test of
certification case. Id. On April 19, 2016, the D.C. Circuit issued its Mandate in the test of
certification case. Id.
25
I take administrative notice that on May 17, 2016, the Union filed charge 20-CA-176385,
alleging that Respondent violated Section 8(a)(5) of the Act by unilaterally transferring the menu
and MIA work to employees not represented by the Union. (Jt. Exh. 2.) I take further
administrative notice that the Union also filed charge 20-CA-179085, amended on August 12,
2016, alleging that Respondent violated Section 8(a)(5) of the Act by unilaterally reducing 30
Union-represented employees hours and compensation without bargaining with the Union. (Jt.
Exh. 3.) I also take administrative notice that on July 23, 2018, the Board filed a petition with the
D.C. Circuit, seeking a finding of contempt of the Court’s Order enforcing the Board’s
bargaining order against Respondent in the test of certification case No. 14-1189.
35
As discussed below, soon thereafter in the summer of 2016 from May through August
2016, Respondent failed to provide the Union with notice and an opportunity to bargain over its
decision to transfer away from the Union menu work, missing in action container (MIA) work,
and runner paperwork delivery work, which had historically and traditionally been performed by
the Union. 40
III. RESPONDENT’S OPERATIONS
Respondent provides its customers with stevedoring and marine terminal services,
including the shipping and receipt of cargo. Respondent conducts such operations at its facilities 45
on the islands of Hawai`i (the Big Island), Kauai, Maui, and Oahu. Respondent conducts a “hub-
JD(SF)-28-18
4
and-spoke” operation which means that cargo from the West Coast is delivered to the Honolulu
facility, Oahu port, which is the main hub where its primary operations are conducted.
At each of Respondent’s facilities, including its main hub at the Honolulu facility, the
stevedoring and terminal operations include, without limitation, loading cargo onto and 5
unloading cargo from mostly vessels. Respondent’s Honolulu Sand Island facility contains three
berths, numbered 51-53 with one ship crane and 6 gantry cranes so up to 7 CVS wharf or crane
superintendents from the Union are assigned per shift. There are 2 shifts per day at Respondent –
one day shift and one night shift and approximately 93 percent of the time, there is also a Union
runner assigned to the shift who is a CVS superintendent.5 (Tr. 35-36; GC Exh. 2.) The cranes 10
move cargo containers on and off vessels for unloading and transfer off the vessel and later
loading and finish-up work to allow the departure of a fully loaded vessel.
IV. THE UNION’s PRESENCE AT RESPONDENT AND THE RUNNER’s
TRADITIONAL DUTIES FOR MENU, MIA, AND PAPERWORK DELIVERY WORK 15
BEFORE SUMMER 2016
There are a total of 49 Unit employees at Respondent’s Honolulu facility comprised of 31
CVS superintendents, 5 CVS senior superintendents, 8 container yard supervisors, and 5 yard
controllers. (Tr. 11-12.) Union CVS superintendents rotate among 6 job assignments and 20
although they can be assigned to any of the job assignments, the rotations among the assignments
are inconsistent and not automatic but rather based on operational needs and employee
experience and skills. Id.
Runners are one category of the 31 CVS superintendents and, as stated above, there is a 25
runner performing its various duties at Respondent approximately 93 percent of the time (13/14)
as approximately one shift out of fourteen shifts a week do not require a runner because only a
barge operation is being performed. (Tr. 35-37.) Consequently, since at least June 2014, almost
every shift has one Unit employee runner assigned to it on a rotating basis. (Tr. 37.)
30
Unit employees receive their weekly schedules every Thursday or Friday from
Respondent’s General Superintendents that list what position they will work for each shift
whether it be a full-time schedule of 4-5 days per week at ten-hour or eight-hour shifts,
respectively or part-time work of up to 7 days per week. (Tr. 30-33.) A daily schedule is also
handed out with more updated information as to the positions for a shift, the vessels to be worked 35
on and the location of the work. (Tr. 32-33.)
The various rotating positions for Unit CVS superintendents are runner, water tower
superintendent, wharf or crane superintendent, ship superintendent, roll on and roll off (RORO)
operation for larger vehicles to and from a vessel and auto operator who watches the 40
International Longshore Workers Union, Local 142 (“ILWU”) workers drive autos on and off the
vessels. (Tr. 33-34.) ILWU wharf clerks work alongside Union wharf or crane superintendents
under the cranes. (Tr. 48.)

5 The day shift is from 7 am to 6 pm and the night shift is from 6 pm to 5 am. Tr. 117-118.
JD(SF)-28-18
5
Since 2014, a Union CVS superintendent’s duties include transporting the manning or
ILWU labor to and from cranes, vessels, and breakrooms at work. Other runner duties,
explained further below, ensure the right equipment is coming under the crane, verify containers
being loaded and unloaded off a vessel, perform menus which is giving directions to crane
operators, checking everything off a schedule, wearing a radio for communications with crane 5
operators and the water tower. (Tr. 39, 47-48.)
Prior to August 2016, Unit employee, CVS Superintendent, and experienced runner
Tammy Escorzon (“Escorzon”) opined that Union runners would average approximately 2 hours
of downtime per shift as a result of sitting around and waiting for additional work on shifts that 10
did not include the more manning intensive discharge or unloading shifts where a runner’s
manning work was quite busy. (Tr. 80-82.) During runner downtime, Escorzon explained that
she normally sat by a crane and waited to see if equipment is changing so she can shift out the
manning or she would sit in her van near the water tower waiting for some kind of direction. (Tr.
82.) 15
A. The Unit Employees’ Menu and MIA Work
Prior to May 2016, the Union runners or the wharf superintendents exclusively performed
the menu work at Respondent which is defined as the calling out of vessel plans to the various 20
crane operators during all shifts or looking at the discharge plan or load-back plan and letting the
crane operator know where and when to put or take each container. (Tr. 46.) From at least 2014
to May 2016, the ILWU wharf clerks6 did not call out the menus over the radio. (Tr. 48.)
Also prior to May 2016, Union CVS runner superintendents exclusively performed the 25
missing containers search (MIA) work at Respondent which is defined as searching for missing
containers that are not where they are supposed to be. (Tr. 58-64.)
In April 2016, Respondent and the ILWU met and agreed to create an ILWU-represented
assist clerk position. (Tr. 122-123.)30
On May 4, 2016, Respondent hired an assist clerk from the ILWU to train ILWU wharf
clerks to perform menu work, perform their own menu work, MIA work, and eventually this
ILWU assist clerk performed paperwork delivery work at Respondent in place of Unit
employees who had traditionally performed this work. (Tr. 123, 183, 201-202, 208-209.) 35
Also in May 2016, Respondent instructed its general managers that ILWU wharf clerks in
place of Unit CVS superintendents were going to be giving the menus to crane operators from
that point in time forward and the Unit employees stopped doing menu work at that time. (Tr.
209.) Without any advance notice or opportunity to bargain, Respondent transferred the menu40
and MIA work away from the Union and specifically directed that this work be performed by the
ILWU wharf clerks in place of Unit employees. (Tr. 49-50, 207-209.) ILWU wharf clerks had
not traditionally performed menu work at the Honolulu facility prior to May 2016. (Tr. 49, 209.)

6 Respondent has a contract for outside labor with McCabe, Hamilton & Renny (“McCabe”), who
supply Respondent with the ILWU wharf clerks and assist clerks under a labor agreement. Tr. 119.
JD(SF)-28-18
6
B. The Unit Employee Runner’s Manning and Paperwork Delivery Work

As specifically provided in Respondent’s training manual to Unit employees, a Unit
employee runner’s job tasks include: (1) being responsible for the transportation of all labor to
and from the vessel and crane (“manning”); (2) patrol the apron and yard and report any hazards 5
or potential hazards; (3) monitor can or container drivers to ensure the proper parking of chassis
and bombcarts in the yard and not on the apron; (4) work with high lift driver and wharf
superintendent to ensure cone baskets are set up properly; (5) wake up any sleeping or cab
drivers not paying attention to the line up; (6) ensure that cone poles, wires, shackles and other
equipment is returned to the proper area in the gear container; (7) provide equipment for labor 10
such as hammers, raincoats, ear plugs, water etc.; and, most critical to Respondent’s operations7 -
(8) pick up and drop off stow plans to the [Union wharf] superintendents and [ILWU] wharf
clerks (“the runner paperwork delivery work”). (Tr. 72-74; GC Exh. 3 at 31.)(Emphasis added.)
Union Wharf Superintendent and seasoned runner Escorzon estimates that a runner’s 15
manning duties can vary from a total of 1 hour to 1.5 hours per shift to up to 2 hours per shift
depending on whether it is a start-up shift versus a finish-up shift as more men are needed for
transportation to a start-up shift vessel8 to unload it than for the finish-up work on a departing
vessel which utilizes mostly crane operations placing containers back on a vessel before it
departs the Honolulu facility. (Tr. 54-58.) 20
In contrast, a runner’s paperwork delivery work usually is most heavy later in the load-
back shift when the water tower generates new paperwork to document changes to the original
flow or stow sheets. The runner usually retrieves the newly generated paperwork from the water
tower from a hook on a string location under the water tower and delivers it to the crane as soon 25
as possible so operations do not get delayed as the new paperwork contains significant or critical
changes as to where containers need to be loaded on a vessel or unloaded from a vessel that have
changed from the original flow or sequence sheets. (Tr. 64-65; GC Exhs. 4 and 5.) In addition,
sometimes the flow sequencing gets doubled up or does not make sense so at that point the
runner or wharf superintendent call the water tower and asks for the new paperwork and the 30
water tower re-does or generates new corrected paperwork. (Tr. 65-66.)
Prior to late July/early August 2016, a Union runner superintendent traditionally and
almost exclusively performed the paperwork delivery work at Respondent with either the runner
performing this work or, if temporarily unavailable, a Unit crane or wharf superintendent would 35
receive a call from the Water Tower superintendent to fill in to perform this work.9 (Tr. 71-74,

7 Unit CVS Superintendent employee Escorzon’s uncontroverted testimony is that a crane cannot just
stop operating for very long before someone screams about a stopped crane operation because you never
want to stop operations on a vessel because of the high cost to Respondent for idle labor and delayed
business but a crane operator cannot just load whatever container they want if there have been changes to
the original loading or discharge plans. Tr. 72-74. This need to revise load-back plans most frequently
occurs the last 4 hours of a load-back or finish-up plan. Tr. 69-71, 81-82, 206. Crane operators must stop
and wait to receive the communicated new paperwork directions from Union runner superintendents or
Union wharf or crane superintendents that contains the changed plans or changed sequence of loading or
unloading containers to or from a vessel. Tr. 72-74.
8 Start-ups occur approximately 3 times per week. Tr. 57.
9 Like paperwork delivery work, other Unit wharf superintendents help or assist runners perform
JD(SF)-28-18
7
211-212.) Only a few times over her more than six years did Escorzon actually see an ILWU
wharf clerk voluntarily perform this work and the Unit employees never called or directed the
ILWU wharf clerk to perform paperwork delivery work for them. (Tr. 77, 79-80, 211-212.)
Once again, Respondent’s runner paperwork delivery work consists of ongoing changes 5
to the original cargo flow discharge10 or load-back11 sequence schedules that occur during the
unloading and loading processes as viewed by superintendents in the water tower.12 Prior to
August 2016, when new paperwork was printed and ready for pick up, the Water Tower
superintendent would step outside the Water Tower and attach the paperwork to a paperclip that
was attached to a string. (Tr. 67.) The Water Tower superintendent would next lower the 10
paperwork down off the Water Tower balcony for the Unit employee runner to pick up. (Tr. 67;
R. Exhs. 8 and 9.)
This paperwork delivery work is vital to Respondent’s ongoing operations because
without paperwork delivery to the cranes in a timely manner, operations must completely stop 15
until the crane receives the revised stow plan information radioed to them from the paperwork
delivery to the Unit employee wharf superintendent or runner. The delivery information contains
the revised flow sequence for loading or unloading containers. (Tr. 64-65, 71-74.)
Respondent’s General Superintendent Matthew Bright13 (Bright) admitted at hearing that 20
new paperwork which must be delivered by the runner to the Union wharf superintendent and
ILWU wharf clerk at a crane is generated 75 to 80 times a week. (Tr. 196-197.) Escorzon
confidently opined that delivering paperwork can take anywhere from 1 to 7 minutes for each
delivery. (Tr. 69.) As a result, I find that runner paperwork delivery work generally takes
between 1.25 hours (75 x 1 minute) to 9.33 hours (80 x 7 [560] minutes) per week to perform by 25
CVS superintendents who rotate each shift to perform the runner’s tasks on almost every shift.
Taking into consideration that 13 of 14 shifts require a runner’s paperwork delivery duties, I
further find that a runner generally averages between 5.77 minutes per shift (75 minutes / 13
shifts per week) to 43.08 minutes per shift (560 minutes / 13 shifts) performing runner
paperwork delivery work. (Tr. 37.)30

manning work. Tr. 58.
10 A discharge plan shows the sequence that containers must be taken off a vessel. See Tr. 43-44; GC
Exh. 3 at 35. The runner’s paperwork delivery task contains the most up-to-date and significant
information that crane operators need from the water tower to receive changes to the original discharge
plan to prevent a work stoppage.
11 A load-back plan shows the sequence that containers must be loaded onto a vessel. See Tr. 43-45;
GC Exh. 3 at 36. The runner’s paperwork delivery task contains the most up-to-date and significant
information that crane operators need from the water tower to receive changes to the original load-back
plan to also prevent a work stoppage.
12 The water tower is the same as a watch tower which is positioned directly between Berth 52 and
Berth 53 and in its elevation provides a bird’s eye view of all 3 berths and operations at Respondent. Tr.
54; GC Exh. 2.
13 From 2006-2016, General Superintendent Bright was also a CVS Superintendent and a Unit
employee from June 11, 2014, until he was promoted in August 2016 to be one of Respondent’s 3 general
superintendents. Tr. 189.
JD(SF)-28-18
8
Since runner paperwork delivery work is heaviest during a revised load-back or finish-up
shift that occur 3-4 shifts per week, Escorzon’s explanation that at these times the paperwork
delivery work can last for 2 hours is most convincing. (Tr. 57, 64-67, 69-70, 72-74, 80-82.)
Escorzon further opined that this 2 hours flurry of paperwork delivery work involves runners, or
Union CVS crane superintendents in a runner’s absence, constantly retrieving paperwork to 5
deliver and they end up with a book of paper at the end of their shift and the saying goes: “we are
killing trees today” from the large amount of paper generated from the water tower plan
revisions. (Tr. 69-70, 74, 81-82, 206.)
V. THE ALLEGED UNILATERAL CHANGES10

As witnessed by Escorzon and admitted at hearing by Respondent’s General
Superintendent Bright,14 in or about May 2016, Respondent transferred menu and MIA work
traditionally performed by the Union to the ILWU nonunit workers and neither the Union wharf
superintendents nor Unit employee runners call out the menus after May 2016 as they had 15
exclusively done in the past. (Tr. 48-49, 207-212.) This transfer of the menu and MIA work from
the Union wharf superintendents to the ILWU wharf clerks occurred soon after the April 2016
Mandate from the DC Circuit without advance notice or an opportunity to bargain. (Tr. 49-50,
207-212.)
20
I further find that from at least June 11, 2014, to on or about August 1, 2016, paperwork
delivery work at Respondent’s Honolulu facility was performed almost exclusively by Unit
runner CVS superintendent employees or other CVS superintendent employees. As stated
above, Respondent’s own training manual for Unit employees specifically lists one of a runner’s
job duties to include this paperwork delivery task as the “pick up and drop off [of] stow plans to 25

14 A credibility determination may rely on a variety of factors, including the context of the witness’
testimony; the witness’ demeanor; and the weight of the respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole.
Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001)
(citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C.
Cir. 2003). Credibility findings need not be all-or-nothing propositions—indeed, nothing is more common
in all kinds of judicial decisions than to believe some, but not all, of a witness’ testimony. Daikichi Sushi,
above at 622. I have also considered the longstanding principle that “the testimony of current employees
that contradicts statements of their supervisors is likely to be particularly reliable because these witnesses
are testifying adversely to their pecuniary interests.” Flexsteel Industries, 316 NLRB 745, 745 (1995),
enfd. 83 F.3d 419 (5th Cir. 1996), citing Gold Standard Enterprises, 234 NLRB 618, 619 (1978), enfd.
denied for other reasons, 607 F.2d 1208 (7th Cir. 1979) and Georgia Rug Mill, 131 NLRB 1304, 1304 fn.
2 (1961); see also Federal Stainless Sink Division of Unarco, 197 NLRB 489, 491 (1972). As a result, I
credit the testimony of current Unit employee Escorzon over the testimony of General Manager
Teegarden and General Superintendent Bright for this reason to the extent they contradict the testimony
of Escorzon. Escorzon and Bright confidently agreed in their testimonies about the transfer of menu,
MIA, and paperwork delivery work away from the Unit employees’ exclusive hold to the ILWU wharf
clerks by August 2016. Tr. 46-50, 58-84, 201-202, 207-209. Moreover, I reject the testimony of General
Manager Teegarden as he unbelievably denies that an additional ILWU-represented assist clerk was hired
in August 2016 to perform work previously performed by Unit employees. See Tr. 176-180, 201. I also
reject as untrue General Manager Teegarden’s attempt to change his December 8, 2016 affidavit because
it is sooner in time than his change in memory which appeared contrived at hearing. Id.
JD(SF)-28-18
9
the supts [Unit superintendents] and [wharf] clerks.” (GC Exh. 3 at 31.) The wharf clerks are
members of the ILWU.
Beginning first in July 2016, the ILWU wharf or assist clerks began openly taking the
paperwork delivery work from Unit employees and physically blocking them from picking up 5
the paperwork as for the first time the Water Tower was simultaneously notifying the Unit
employee runners and the ILWU-represented assistant clerks of the paperwork ready for pick up.
(Tr. 74-76, 202, 209-210.) Later on or about August 1, 2016, one of Respondent’s manager’s,
either a pre-shift manager or Manager Alan Tokayra, notified Unit employees at a pre-shift
meeting that Respondent would be using only ILWU nonunit labor to perform the paperwork 10
delivery work from that point in time forward. (Tr. 74-77, 100-108.) Also beginning in August
2016, all Unit employees stopped being called by the Water Tower to come pick up new
paperwork for delivery to the cranes. (Tr. 76-77, 102-103, 108-113.) In fact, the Unit employee
runners were specifically told by Respondent management not to pick up and deliver paperwork.
(Tr. 77, 102-103, 108-113.) I further find that on or about August 1, 2016, Respondent 15
unilaterally transferred paperwork delivery work, previously performed by Unit employee
runners or other Unit employees, to workers outside the Unit who are represented by the ILWU
without advance notice or an opportunity to bargain. (Tr. 77-80, 103.)
I also find that this loss of runner paperwork delivery work adds an additional 2 hours of 20
downtime to a runner’s average daily downtime of 2 hours so that beginning in August 2016, a
runner’s average daily downtime was doubled to approximately 4 hours per shift. (Tr. 80-84.) In
place of Unit employees, the ILWU assist clerk hired in May 2016 performs the paperwork
delivery work. (Tr. 212.) Escorzon, as a former bargaining unit representative for the Union,
credibly opined that the Union has lost bargaining unit support since 2014 because of the lost 25
menu, MIA, and paperwork delivery work Respondent to the ILWU clerks since 2016 and
Escorzon further opined that the Union now enjoys less than 50 percent support from its
bargaining unit as a result. (Tr. 82-84.)
ANALYSIS30
I. Contentions of the Parties
The General Counsel’s position is that Respondent transferred work from Unit employees
to nonunit clerks at the ILWU thereby violating Section 8(a)(5) and (1) of the Act. The General 35
Counsel argues that Respondent’s defense that it was obligated to transfer the work to nonunit
clerks is unavailing for several reasons including the obligation for Respondent to negotiate with
the Union and that Respondent had no collective bargaining agreement obligations to the ILWU
who had contracted, instead, with McCabe, Hamilton & Renny Co., LTD. (“McCabe”) and not
the Respondent. (See R Exh. 1.) 40
Respondent contends that the paperwork delivery work change was not unlawful because
it was not material, substantial, or significant. Respondent also contends that it had no obligation
to give the paperwork delivery work exclusively to the Unit employee runner. Finally,
Respondent contends that the evidence shows that ILWU had a contractual right to perform the 45
paperwork delivery work pursuant to the ILWU’s wharf clerk collective-bargaining agreement
(July 1, 2014 to June 30, 2019) (“ILWU CBA”).
JD(SF)-28-18
10
II. MATSON VIOLATED SECTION 8(A)(5) OF THE ACT BY UNILATERALLY
TRANSFERRING, WITHOUT NOTICE TO THE UNION, THE VITAL RUNNER
PAPERWORK DELIVERY DUTIES HISTORICALLY AND TRADITIONALLY PERFORMED
BY UNIT EMPLOYEES5
Under Section 8(d) of the Act, mandatory subjects of bargaining include wages, hours,
and other terms and conditions of employment. It is well established that an employer violates
Sections 8(a)(5) and (1) of the Act when it makes substantial and material unilateral changes
during the course of a collective bargaining relationship absent impasse on matters that are 10
mandatory subjects of bargaining. NLRB v. Katz, 369 U.S. 736 (1962). An employer’s duty to
bargain only arises if the changes are material, substantial, and significant ones affecting terms
and conditions of employment. Millard Processing Services, 310 NLRB 421, 425 (1993).
A decision to subcontract or transfer unit work alters the terms and conditions of 15
employment and is therefore a mandatory subject of bargaining. See Fibreboard Corp., 379
U.S. 203, 210 (1964); see also Eugene Iovine, Inc., 328 NLRB 294 (1999)(Reducing the hours
and days of work of employees are changes in terms and conditions of employment over which
an employer must bargain); Fry Foods, 241 NLRB 76, 88 (1979), enfd. 609 F.2d 267 (6th Cir.
1979)(“It is to say that the reclassification of a position for the bargaining unit job to a nonunit 20
job is a mandatory subject of collective bargaining if the reclassification has the impact on
bargaining unit work.”). If the Government demonstrates an employer made a unilateral change
involving a mandatory subject of bargaining, the burden rests with the employer to demonstrate
such a unilateral change was in some way privileged or the employer’s change will violate the
Act. Pan American Grain, 351 NLRB 1412, 1414, fn. 9 (2007). Moreover, it is well established 25
that “once a specific job has been included within the scope of a bargaining unit by either Board
action or consent of the parties, the employer cannot unilaterally remove or modify that position
without first securing the consent of the union or the Board.” Hill-Rom Co. v. NLRB, 957 F.2d
454, 457 (7th Cir. 1992); accord: United Technologies Corp., 292 NLRB 248 (1989), enfd. 884
F.2d 1569 (2d Cir. 1989); Bay Shipbuilding Corp., 263 NLRB 1133 (1982), enfd. 721 F.2d 187 30
(7th Cir. 1983).
Here, it is undisputed that Respondent failed to provide the Union with notice and an
opportunity to bargain over the decision by August 1, 2016 to transfer paperwork delivery work
performed almost exclusively by the Unit employees for at least the prior 2 years to nonunit 35
clerks represented by the ILWU. I find that Respondent’s transfer of Unit employees’
paperwork delivery work by August 1, 2016, is a mandatory subject of bargaining as it involves
a reduction of hours and has doubled from 2 hours to 4 hours a Unit employee runner’s
downtime with no specific duties. Respondent’s bargaining obligation attached once the Union
won the election and was certified by the Board on June 11, 2014 and the test of certification 40
was affirmed in the 2014 Board decision and was upheld by the D.C. Circuit’s February 26, 2016
ruling and its April 2016 Mandate. Respondent acted at its own peril by not providing notice and
an opportunity to bargain to the Union for its transfer of paperwork delivery work to the ILWU
workers from the Unit employee runners. See Thesis Painting, Inc., 365 NLRB No. 142, slip op.
at 4 (2017) (citing Clement Wire, 257 NLRB 1058 (1981)). Moreover, I further find that the 45
Union’s paperwork delivery work has been included within the scope of a bargaining unit by the
consent of the parties as evidenced in Respondent’s own training manual with Unit employees
JD(SF)-28-18
11
which specifically references paperwork delivery work as a task for the Unit employee runner.
Respondent cannot unilaterally remove or modify that paperwork delivery runner task without
first securing the consent of the Union or the Board. (See GC Exh. 3 at 31.) Thus, I find that
Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally transferred bargaining
unit paperwork delivery work performed by Unit employees to nonunit ILWU clerks.5
Respondent claims that paperwork delivery work is insignificant because the Unit
employees have not suffered from loss of compensation due to the transfer of paperwork delivery
work. (R. Br. at 25-33). What Respondent misses, however, is that the paperwork delivery work
is material and significant enough to get transferred to a new ILWU assist clerk worker who is 10
compensated in addition to the Unit employee to perform this same work. This stripping of
significant Unit employee duties from CVS superintendent runners and Wharf superintendents
makes the lost paperwork delivery work a further substantial reduction in a Unit employee’s
work opportunities and especially when added to the recently lost menu and MIA work, doubles
a Unit employee runner’s downtime from 2 to 4 hours on some days - a material and substantial 15
amount of downtime that required the hiring of the nonunit ILWU assist clerk. While this Unit
employee runner position may, in fact, be a “loss leader” position which Respondent maintains at
full compensation, it is just a matter of time when the increased downtime causes a Unit
employee runner even more harm such as losing their runner position entirely or more work
benefits to the ILWU assist clerk. It is difficult to imagine a more dramatic change for a Unit 20
employee than having half a shift removed from them trying to appear busy other than perhaps
being discharged which would be the logical next step here.
Moreover, the paperwork delivery work is likely the most substantial and vital work
performed at Respondent, second only to the work of crane operators, as all of Respondent’s 25
entire operations grind to a halt while crane operators wait for the significant paperwork
sequence changes from the Water Tower to be delivered to them through radio communications
from the CVS superintendents and the wharf clerks next to them at the crane after the runner has
delivered this critical paperwork to the cranes.
30
Also, the ILWU’s wharf clerk collective-bargaining agreement (July 1, 2014 to June 30,
2019) (“ILWU CBA”) is not a binding agreement with the Respondent but instead is an
agreement between the ILWU and a different legal entity, Employer McCabe.15 (R Br. p. 8, fn.
11.) Also, Section 2.02 contains a provision which states that wharf clerk duties include “all
checking of cargo on vessels and on docks when such work is performed by employees of the 35
Employer [McCabe].” (R. Exh. 1 pp. 3, 23.) In addition, a letter of understanding also between
the ILWU but not Respondent, dated September 15, 2008, and updated and revised on June 1,
2015, states, “the following work and functions shall be assigned to wharf clerks at all facilities
covered by the [ILWU CBA]: 1) New Operations. All new duties that are traditionally wharf
clerk functions generally identified as directing and executing the flow of cargo, [McCabe as 40
employer] shall first discuss the work jurisdictional issues in a meeting” with ILWU. (R Exh. 1

15 As pointed out by the General Counsel, Respondent “borrows” stevedores and Wharf Clerks from
McCabe. Tr. 119; GC Br. 19, fn. 29. Respondent did not sign the ILWU CBA and is not a party to it.
General Manager Teegarden opined that Respondent “generally follows” the ILWU CBA with McCabe
but Respondent has not presented any evidence that it is legally bound by the terms of the ILWU CBA.
Id.
JD(SF)-28-18
12
at 36.) As stated above, even if relevant, none of these obligations are Respondent’s obligations
since Respondent is not a party to the ILWU CBA.
Respondent also alleges that its action to transfer the Unit employees’ work to the ILWU
represented clerks was lawfully permitted because it was obligated to transfer the paperwork 5
delivery work, and therefore did not have a bargaining obligation with the Union. Respondent
cites to section 2.02 of the ILWU collective-bargaining agreement which states that wharf clerk
duties include “all checking of cargo on vessels” as well as to the letter of understanding which
states that wharf clerks direct and execute the flow of cargo.
10
Respondent’s argument is unpersuasive. I find that from at least June 2014 to August 1,
2016, the Unit employees performed paperwork delivery work at Respondent’s Honolulu
facility. Soon after the April 2016 D.C. Court mandate, beginning in July and extending to
August 1, 2016, Respondent decides that the paperwork delivery work should be transferred to
ILWU represented clerks. Rather than provide notice and an opportunity to bargain to the 15
Union, Respondent justifies its unlawful actions by claiming that an ILWU CBA of which
Respondent is not a party to, and a letter of understanding also not signed by Respondent, with
the ILWU required the paperwork delivery work to be performed by ILWU clerks.16 Respondent
further argues by adding that wharf clerks have been performing paperwork delivery work at its
Honolulu facility for many years. Respondent, citing Murphy Oil USA, Inc., 286 NLRB 1039, 20
1046 (1987), and Exxon Shipping Company, 312 NLRB 566, 569 (1993), claims that Federal law
requires it to transfer the work to ILWU without bargaining with the Union. However, both
cases cited refer to the requirements of the Occupational Health and Safety Act (OSHA), 29 CFR
§ 1910.1200, and Federal maritime law, 46 U.S.C. § 10502(c), respectively. Respondent cites to
no authorities which require the paperwork delivery work to be performed by ILWU represented25
clerks.
Moreover, the issue in this proceeding is whether Respondent failed to provide notice and
an opportunity to bargain to the Union when it transferred work from the Unit employees. I
decline to interpret the ILWU CBA and letter of understanding as to whether the paperwork 30
delivery work should be performed by the ILWU represented clerks. Instead, Respondent failed
to provide notice and an opportunity to bargain to the Union when it transferred paperwork
delivery work performed by unit employees, thereby, violating Section 8(a)(5) and (1) of the
Act.
35

16 I further find that the ILWU CBA and 2008 Letter of Understanding are not lawful work-
preservation agreements and even if they are, their terms do not apply to paperwork delivery work
traditionally performed by CVS superintendents. First of all, the ILWU CBA makes no specific reference
to the disputed paperwork delivery work. See National Woodwork Mfrs. Assn. v NLRB, 386 U.S. 612
(1967); Teamsters (Active Transportation Co.), 335 NLRB 830, 832-833 (2001). In addition, paperwork
delivery work is not “new duties” or work that is traditionally performed by ILWU-represented clerks at
Respondent’s Honolulu facility. Based on this record, I conclude that Respondent lacks a valid work
preservation claim with respect to the paperwork delivery work because it has never been a function
performed by the ILWU clerks at Respondent’s Sand Island, Honolulu facility. Sheet Metal Workers
Local 27, 321 NLRB 540 (1996).
JD(SF)-28-18
13
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act 5
representing:
All full-time and regular part-time Container Vessel Stevedoring (CVS)
Superintendents, CVS Senior Superintendents, Container Yard (CY) Supervisors
and Yard Controllers employed by Matson Terminals, Inc. in its Honolulu, 10
Hawaii operation; excluding CVS Senior Superintendents who work at the
Employer’s Pier 2 operation, clerical employees, managerial employees, guards
and supervisors as defined by the Act (the Unit).
3. Respondent violated Section 8(a)(5) and (1) of the Act by, on or about August 1, 2016, 15
transferring paperwork delivery work without providing the Union with notice and the
opportunity to bargain.
4. The above unfair labor practice affects commerce within the meaning of Section 2(6)
and (7) of the Act.20
REMEDY
Having found that Respondent Matson Terminals, Inc. has engaged in certain unfair labor
practices, I shall order it to cease and desist therefrom and to take certain affirmative action 25
designed to effectuate the policies of the Act.
Respondent, having unlawfully changed the terms and conditions of employment, shall
rescind the transfer of paperwork delivery work from the employees represented by the Union
that was unilaterally implemented on or about August 1, 2016. 30
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted in the Employer's Honolulu facility or wherever the
notices to employees are regularly posted for 60 days without anything covering it up or defacing
its contents. In addition to physical posting of paper notices, notices shall be distributed 35
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if Respondent customarily communicates with its employees by such means. In the event
that, during the pendency of these proceedings, Respondent has gone out of business or closed
the facility involved in these proceedings, Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by the 40
Respondent at any time since August 1, 2016. When the notice is issued to the Employer, it shall
sign it or otherwise notify Region 20 of the Board what action it will take with respect to this
decision.
The General Counsel requests that the notice to employees be read to all employees 45
including employees at Respondent’s Honolulu facility represented by ILWU during work time
by Respondent’s management representative. (See R Br. 34, fn. 28.) As indicated above in
JD(SF)-28-18
14
footnote 2, the parties have filed exceptions to Judge Tracy’s decision, which remain pending,
and thus her findings are not final. Nevertheless, it is appropriate to consider and rely on those
findings in deciding the proper remedies in this case. The issues decided by Judge Tracy were
fully litigated before her, and relitigating or revisiting those issues de novo in this related
proceeding, while the matter is before the Board, would be antithetical to judicial efficiency and 5
economy and potentially lead to inconsistent results and unnecessary delays. See Wynn Las
Vegas, LLC, 358 NLRB No. 81 fn. 1, slip op. at 4–5 (2012) (Board affirmed judge’s ruling that
the respondent company was precluded from relitigating lawfulness of suspension, an issue fully
litigated and decided by another judge in a prior case, even though that decision was pending
before the Board on exceptions); Grand Rapids Press of Booth Newspapers, 327 NLRB 393, 10
394–395 (1998), enfd. mem. 215 F.3d 1327 (6th Cir. 2000) (judge relied on another judge’s
findings in an earlier case as evidence of animus even though the case was pending before the
Board on exceptions); and Detroit Newspapers Agency, 326 NLRB 782 fn. 3 (1998), enfd.
denied on other grounds 216 F.3d 109 (D.C Cir. 2000) (judge relied on earlier decision of
another judge to find that a strike was an unfair labor practice strike, even though the decision 15
was pending before the Board on exceptions). As a result, I find that Respondent here is a
recidivist employer who has engaged in a pattern of unlawful conduct by transferring away from
the Union the barge menu work at Respondent’s Hilo facility, and transferring away from the
Union the menu and MIA work and paperwork delivery work in this case to the benefit of the
ILWU without notice and without the opportunity to bargain. I find that Respondent’s conduct is 20
numerous, pervasive, and outrageous that an extraordinary remedy is necessary to dissipate fully
the coercive effects of the unfair labor practices I find as Escorzon further believably opined that
the loss of menu, MIA, and paperwork delivery work has caused the Union to lose bargaining
unit support. For these reasons, I recommend the extraordinary remedy that the notice to
employees be read to all employees including employees at Respondent’s Honolulu facility 25
represented by ILWU during work time by Respondent’s management representative and I
further find that the conduct of Respondent in this particular case when added to its conduct from
Judge Tracy’s decision is sufficiently egregious to warrant the granting of this “extraordinary”
remedy. See Federated Logistics and Operations, 340 NLRB 255, 256 (2003)(“The Board may
order extraordinary remedies when the [r]espondent’s unfair labor practices are so ‘numerous, 30
pervasive, and outrageous’ that such remedies are necessary ‘to dissipate fully the coercive
effects of the unfair labor practices found.’ [citation omitted”).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1735
ORDER
Respondent, Matson Terminals, Inc., Sand Island, Honolulu, island of Oahu, its officers,
agents, successors, and assigns, shall40
1. Cease and desist from

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)-28-18
15
a. Changing the terms and conditions of employment of its Unit employees without
first notifying the Union and giving it an opportunity to bargain over the decision
to transfer paperwork delivery work.
b. In any like or related manner interfering with, restraining, or coercing employees 5
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. Rescind the change in the terms and conditions of employment for its Unit 10
employees that was unilaterally implemented on or about August 1, 2016.
b. Within 14 days after service by the Region, post at its facilities in Honolulu, on
the island of Oahu, copies of the attached notice marked “Appendix.”18 The
attached remedial notice shall be read aloud to the Respondent’s employees 15
including employees at Respondent’s Honolulu facility represented by ILWU
during work time by Respondent’s management representative in the presence of
a Board agent. Copies of the notice, on forms provided by the Regional Director
for Region 20, after being signed by Respondent’s authorized representative, shall
be posted by Respondent and maintained for 60 consecutive days in conspicuous 20
places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if Respondent customarily communicates with its
employees by such means. Reasonable steps shall be taken by Respondent to 25
ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceedings, Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by Respondent at any time since30
August 1, 2016.
c. 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 Respondent has taken to comply.35
Dated: Washington, D.C. October 16, 2018
Gerald Michael Etchingham40
Administrative Law Judge

18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)-28-18
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT change your terms and conditions of employment without first notifying your
exclusive bargaining representative, Hawaii Teamster & Allied Workers Union, Local 996, and
giving it an opportunity to bargain. The bargaining unit (Unit) affected are all full-time and
regular part-time Container Vessel Stevedoring (CVS) Superintendents, CVS Senior
Superintendents, Container Yard (CY) Supervisors and Yard Controllers employed by Matson
Terminals, Inc. in its Honolulu, Hawaii operation; excluding CVS Senior Superintendents who
work at the Employer’s Pier 2 operation, clerical employees, managerial employees, guards and
supervisors as defined by the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the change (transfer of paperwork delivery work) in the terms and conditions
of employment for our Unit employees that were unilaterally implemented on or about August 1,
2016.
MATSON TERMINALS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
JD(SF)-28-18
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-178312 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (628) 221-8875.