International Shipping Agency, Inc. v. Union de Trabajadores de Muelles Local 1740 et al

Filing 151

OPINION AND ORDER denying Intership's motion for summary judgment filed at Docket No. 125. Docket Nos. 79, 81, 82, and 84 are deemed MOOT. Docket Nos. 107, 117, 118, 121, 129, 132, 142, 144, and 147 are GRANTED. Docket Nos. 106, 127, 128, 130, 1 34, 143, 145, 149, and 150 are NOTED. Furthermore, this case is STAYED pending resolution of the dispute in Civ. No. 15-1750(FAB). Once that matter is resolved, the parties have ten days to inform the Court by joint motion.Signed by US Magistrate Judge Silvia Carreno-Coll on 8/21/2015.(NBB)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

INT’L SHIPPING AGENCY,
INC.,
Plaintiff,
v.

CIV. NO.: 12-1996(SCC)

UNIÓN DE TRABAJADORES DE
MUELLES LOCAL 1740, ET
AL.,
Defendants.

OPINION AND ORDER
In this labor dispute, Plaintiff International Shipping
Agency, Inc. (“Intership”), has filed a partial motion for
judgment against the defendants Unión de Trabajadores de
Muelles–International Longshoreman’s Association Local 1740
(“UTEM” or “Local 1740") and Unión de Empleados de
Muelles—International Longshoreman’s Association Local
1901 (“UDEM” or “Local 1901"). After careful consideration, I
deny Intership’s motion.

INT’L SHIPPING AGENCY v. UNION DE TRABAJADORES DE MUELLES

Page 2

1. Preliminary Matters
The parties have raised a host of non-merits arguments that
must be addressed before proceeding to the heart of the
motion for summary judgment. In particular, Intership makes
numerous arguments for why the defendants’ summary
judgment exhibits and statement of material facts should be
struck, and UTEM asks that the proceedings be stayed. I take
up these arguments below.
1.1 The defendants’ exhibits are appropriately marked.
Intership complains that the defendants have not “physically identified or marked” their summary judgment exhibits.
Docket No. 137, at 2. Though Intership purports to find such a
requirement in Federal Rule of Civil Procedure 56 and its local
analogue, id., I can find no such requirement. The defendants’
exhibits are labeled on CM/ECF, and even if physical markings
would have been helpful, that practice sufficed. As to
Intership’s arguments regarding the defendants’ supposed
failure to cite to specific pages and paragraphs, it is notable
that Intership itself doesn’t cite to any such instance. My own
perusal of the defendants’ filings show that they are in substantial compliance with the Local Rules on this point. In any case,
a few improper citations would result in deeming specific facts

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admitted or denied, not the striking of the entire filing as
Intership requests.
1.2 The defendants cannot use their objections to
Intership’s proposed facts as a vehicle for proposing
additional facts.
Intership correctly points out that, throughout their
objections to Intership’s proposed facts, the defendants purport
to “qualify” Intership’s facts. To the extent the defendants have
done so, facts stated during such qualifications shall not be
deemed admitted; the facts admitted with qualifications will
also be deemed admitted. It is thus unnecessary to strike them.
To the extent that Intership asks the Court to strike the
separately-proposed facts in the defendants’ counterstatement
on these grounds, its motion is denied as it conflicts with Local
Civil Rule 56(c).
1.3 Intership fails to show that the defendants rely on
sham affidavits.
At the heart of this case is a controversy over whether or
not a collective bargaining agreement was in place in October
2012. To show that it was, Intership has proposed—and the
defendants have admitted—various facts concerning the
defendants’ presidents invoking the CBA in various labor

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disputes after that date. Now, in their counterstatement of
material facts, the defendants, relying on sworn statements
signed by their presidents, essentially state that it was common
practice to invoke an expired CBA during labor disputes until
a new one was signed. See, e.g., Docket No. 131-2, ¶ 24.
According to Intership, these affidavits are shams, which is
to say they impermissibly contradict the affiants’ “clear
answers to unambiguous questions” given during their
depositions. Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1,
4–5 (1st Cir. 1994). A sham affidavit may not be used to create
an issue of fact at summary judgment unless the discrepancy
is well-explained. Colburn v. Parker Hannifin/Nichols Portland
Div., 429 F.3d 325, 332 n.3 (1st Cir. 2005).
The initial problem for Intership, though, is that it fails to
point out even a single discrete factual discrepancy between
the affidavits and the deposition testimony; indeed, rather than
offer any detail about those affidavits at all, Intership resorts to
hyperbole and personal attack.1 For this failure alone, I would

1.

It is plain that there is bad blood between the parties and their counsel.
Throughout this case, that has manifested as over-litigiousness and
histrionics. See, e.g., Docket No. 88, at 2 (lamenting certain over-the-top
accusations). Especially in the absence of developed argumentation, it
does no good to refer, with bold and underlines, to “exponential sham

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Page 5

deny Intership’s motion to strike the affidavits.
But the motion fails on its merits, too. At no point in its
motion to strike or its statement of facts does Intership point to
a statement in the presidents’ depositions that the CBA was in
effect as of October 26, 2012. And while they testified to
invoking it in various proceedings, Intership at no time points
to testimony where they explained why they did so, i.e.,
whether it was because that is customary, or because the CBA
was actually in effect. Thus, the summary judgment affidavits,
in saying that the unions invoked the CBA because it was
customary to do so despite the CBA’s expiration does not in
any way contradict a clear answer to an unambiguous question. To the contrary, it only contradict’s Intership’s theory of
the case. The motion to strike the affidavits is denied.2

affidavit[s]” or claim that “logic is the missing point in Defendants’
sham affidavits.” Docket No. 137, at 6. It would behoove both sides to
cut back on such attacks; the Court is unlikely to mistake the written
equivalent of an angry harangue for convincing rhetoric.
2.

Intership writes in its motion that “[t]he deposition testimony of
Sánchez and Mercado establish that” the CBA was extended as to all
unions and that its mechanized-cargo stipulation was extended until
December 31, 2012. Docket No. 137, at 5. But neither of the two
paragraphs of its statement of uncontested facts that it cites for these
propositions rely on Sánchez’s or Mercado’s deposition testimony.

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1.4 The defendants’ summary judgment should not be
stricken as unauthenticated.
Courts in this district, the undersigned included, have
regularly stricken summary judgment evidence not authenticated by an affidavit or other means. See, e.g., Vélez-Sepúlveda
v. GlaxoSmithKline P.R., Inc., Civ. No. 13-1909(SCC), 2015 WL
4389529, at *2 n.4 (D.P.R. July 15, 2015). Relying principally on
a case from the Western District of Michigan, the defendants
argue that this practice is incorrect after the 2010 amendments
to Rule 56. After reviewing that case and others citing it, I
agree with the defendants that the 2010 amendments brought
an important change to summary judgment practice in this
regard.
Before 2010, Rule 56(e) provided that “[i]f a paper or part of
a paper is referred to in an affidavit, a sworn or certified copy
must be attached to or served with the affidavit.” See also
Foreword Magazine, Inc. v. OverDrive, Inc., Civ. No. 10-1144,
2011 WL 5169384, at *1 (W.D. Mich. Oct. 31, 2011) (“Former
Rule 56(e) contained an unequivocal direction that documents
presented in connection with a summary judgment motion
Docket No. 126, ¶¶ 71, 73. It is thus irrelevant whether those statements
are contradicted by Sánchez’s or Mercado’s affidavits.

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must be authenticated.”). The 2010 amendments removed this
language; now, the Rule makes no such affirmative requirement, placing upon the adverse party the burden to raise an
objection. Fed. R. Civ. P. 56(c)(2) (“A party may object that the
material cited to support or dispute a fact cannot be presented
in a form that would be admissible.”). As the Foreword court
pointed out, moreover, “the objection contemplated by the
amended Rule is not that the material ‘has not’ been submitted
in admissible form, but that it ‘cannot’ be.” 2011 WL 5169384,
at *2. After 2010, then, there is no longer a “bright-line rule,”
but, rather, “a multi-step process by which a proponent may
submit evidence, subject to an objection by the opponent and
an opportunity to either authenticate the document or propose
a method to doing so at trial.” Id. As Foreword points out, the
drafters of the amendments apparently intended that an
objection be denied based on an explanation of “the admissible
form that is anticipated” at trial. Fed. R. Civ. P. 56 (2010
Advisory Committee notes), cited by, Foreword, 2011 WL
5169384, at *2. What would constitute such an explanation goes
unsaid, and in Foreword, the proponent defeated the objection
by filing authentication affidavits. 2011 WL 5169384, at *2.
A substantial number of courts have followed Foreword, and

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I agree that it correctly interprets the 2010 amendments. Still,
that leaves undetermined whether authentication affidavits are
necessary to defeat a Rule 56(c)(2) objection, or whether a
simple statement that a certain witness will vouch for the
document at trial suffices. The First Circuit has not addressed
this question, but in at least two cases judges from this district
have interpreted Rule 56(c)(2) to permit summary judgment
evidence not authenticated through a sworn affidavit. For
example, in Francis v. Caribbean Transport Ltd., Judge Besosa
interpreted Rule 56(c)(2) as creating a “relaxed” standard and
held that it required “nothing more” than “an unsworn
declaration under penalty of perjury” to authenticate certain
business records. 882 F. Supp. 2d 275, 279 (D.P.R. 2012). And in
Santos v. Nogueras, Magistrate Judge López required even less,
holding that a simple statement—in an opposition to a motion
to strike—that the exhibits “were in [the plaintiff’s] personal
knowledge and that she [could] properly identify and authenticate them at trial” was sufficient to defeat a Rule 56(c)(2)
objection. Santos, Civ. No. 11-1105(FAB/MEL), 2012 WL
2871108, at *4 (D.P.R. July 12, 2012). At a minimum the Fourth
and Eighth Circuits have suggested that a relaxed standard of
this sort is proper. See, e.g., Humphreys & Partners Architects,

INT’L SHIPPING AGENCY v. UNION DE TRABAJADORES DE MUELLES

Page 9

L.P. v. Lessard Design, Inc., No. 14-2030, 2015 WL 3854494, at *9
n.4 (4th Cir. June 23, 2015), as amended (June 24, 2015) (suggesting that movant’s post-objection submission of authentication
affidavits was unnecessary); Gannon Int’l v. Blocker, 684 F.3d
785, 793 (8th Cir. 2012) (“And the standard is not whether the
evidence at the summary judgment state would be admissible
at trial—it is whether it could be presented at trial in an
admissible form.”). And numerous other district courts have
considered non-authenticated evidence after the 2010 amendments. See, e.g., Brooks v. Firestone Polymers, LLC, 70 F. Supp. 3d
816, 823 n.3 (E.D. Tex. 2014) (“[I]t appears that the letter could
be offered in admissible form . . . .” (emphasis added)); Ridgell
v. Astrure, Civ. No. 10-3280, 2012 WL 707008, at *9 (D. Md.
March 2, 2012) (“Defendant explains that it could certify any
unauthenticated records to cure this current defect in their
admissibility.” (emphasis added)); Richardson v. Miss. Dep’t of
Human Servs., Civ. No. 10-198, 2012 WL 568285, at *3 (S.D.
Miss. Feb. 21, 2012). As these cases comport with Rule 56(c)(2)’s
plain language, I will follow them.
Turning to Intership’s objections, it has frustratingly
declined to specify to which exhibits it is objecting, leaving to
the Court that job. To begin, though, it is plain that Intership’s

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objection—that the documents are unauthenticated—is itself
improper. Pursuant to Rule 56(c)(2), an objection must state
that the movant’s evidence “cannot be presented in a form that
would be admissible” at trial. Fed. R. Civ. P. 56(c)(2) (emphasis
added). Because Intership makes no argument that the defendants’ evidence could not be authenticated, its objection should
be denied. See, e.g., Abbott v. Elwood Staffing Servs., Inc., 44 F.
Supp. 3d 1125, 1135 (N.D. Ala. 2014) (“[A]n objection cannot be
based solely on evidence not being authenticated—the objection must be that evidence cannot be presented in an admissible
form . . . .”); Ridgell, 2012 WL 707008, at *9 (denying objection
because the party had failed to “actually argue that Defendant
cannot produce admissible versions of the same for trial”);
Richardson, 2012 WL 568285, at *3 (denying objection because
the defendant “committed procedural error by failing to make
the correct objection”); Tzanetis v. Weinstein & Riley, P.S., Civ.
No. 09-413, 2010 WL 3925250, at *2 (D. Conn. Sept. 28, 2010) (same).
Because Intership failed to specify the exhibits to which it
is objecting, and because it has failed to make the proper
objection, I deny its motion to strike on these grounds. I note,
however, that the defendants have provided a list of their

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exhibits and explained why each could be presented in an
admissible form. See Docket No. 141, at 11–13. For the most
part, they note that the documents to which they cite are
already in the record, were stipulated-to at the individual
defendants’ depositions, or were within the defendants’
personal knowledge. It would seem, then, that even if Interhsip
had not procedurally defaulted, the evidence would be
admissible on summary judgment in any case, as there is every
reason to think that it could be presented in an admissible form
at trial.
1.5 The Mercado and Sánchez affidavits should not be
struck as in violation of Rule 56's personal knowledge
requirement.
Intership argues that Mercado’s and Sanchez’s affidavits
must be excluded “in their entirety” because they are made on
knowledge and belief, rather than personal knowledge alone.
Intership is right that Rule 56 requires affidavits to be signed
on personal knowledge. Fed. R. Civ. P. 56(c)(4). However, a
review of the affidavits shows that they state facts that are
within the affiants’ knowledge as presidents of the defendant
unions. It would a harsh result, then, to deprive the defendants
of a merits ruling on account of a mistake (even if an obvious

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one) in the affidavits’ signature line. Thus, I will follow the
example of the many judges in this circuit that have refused to
wholly strike affidavits on these grounds and who have,
instead, considered the affidavits to the extent that the stated
facts appear based on personal knowledge. See, e.g., Vescom
Corp. v. Am. Heartland Adm’rs, Inc., Civ No. 01-146, 2003 WL
21347205, at *1 (D. Me. Jan. 17, 2003) (relying on affidavit “to
the extent that any factual assertion would be a matter of [the
affiant’s] personal knowledge in his role as [the defendant’s]
CEO”); see also Reid v. Stanley, Civ. No. 04-369, 2006 WL
1875335, at *1 (D.N.H. July 6, 2006) (“[O]nly the segments of
the affidavit that meet the Rule 56(e) standard may be credited
for the purposes of a motion for summary judgment.”);
Donovan v. Magnusson, Civ. No. 03-226, 2004 WL 1572598, at *1
(D. Me. June 7, 2004), report and recommendation adopted, 2004
WL 1770158 (D. Me. Aug. 4, 2004); Smith v. Danzig, Civ. No. 00216, 2001 WL 823642, at *2 (D. Me. July 20, 2001). Thus, I deny
Intership’s general request to strike the affidavits; however, in
considering the parties’ statements of facts below, I will only
rely on the affidavits to the extent that they state facts that
would be within the affiant’s personal knowledge.

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1.6 The dispute over who represents Local 1901 does not
preclude the Court from ruling on the motion for
summary judgment.
Intership sued UDEM and its president, René Mercado. In
the complaint, Intership identified UDEM as Local 1901, a
union chartered by the ILA. UDEM and Mercado appeared
and admitted these facts. Docket No. 34, ¶¶ 5–6. Sometime
later, a dispute arose between the ILA and UDEM: the ILA put
UDEM under a trusteeship, and UDEM voted to disaffiliate
from the ILA; now, the whole issue is under litigation in a
separate case. See Unión de Empleados de Muelles de P.R. Inc. v.
Int'l Longshoreman's Ass'n AFL-CIO, Civ. No. 15-1750(FAB)
(D.P.R. filed June 3, 2015). The precise identity of UDEM—and
who is entitled to speak for it—is thus an open question, one
which the defendants in this case have assiduously avoided
answering.
Intership has now jumped into this void seeking advantage.
Noting that the NLRB has held that UDEM was not a bona fide
labor organization, Intership asks the Court to take “judicial
notice” of the NLRB’s findings and hold that the UDEM
presided over by Mercado is not the real Local 1901, that it
thus has no “standing” to dispute the motion for summary

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judgment, and that summary judgment should be entered
against the real Local 1901, which is in apparent default.3
Docket No. 143, at 1. The Court will not follow this path.
The conflict over Local 1901 certainly presents a wrinkle,
but it far from proves some of the wilder accusations included
in Intership’s filings. More importantly, the Court cannot take
“judicial notice” of the NLRB’s findings, at least not in a way
that makes those findings binding in this case: it is impermissible for a Court to take judicial notice of another tribunal’s
factual findings. Int’l Star Class Yacht Racing Ass’n v. Tommy
Hilfiger U.S.A., Inc., 146 F.3d 66, 70–71 (2d Cir. 1998) (holding
that facts adjudicated by a tribunal in a different case cannot be
the subject of judicial notice), cited approvingly by, Nadherny v.
Roseland Prop. Co., Inc., 390 F.3d 44, 51–52 (1st Cir. 2004); CruzAcevedo v. Toledo-Davila, 660 F. Supp. 2d 205, 211 n.6 (D.P.R.
2009) (same); cf. Stasiukevich v. Nicolls, 168 F.2d 474, 479 (1st Cir.

3.

Intership actually takes this “standing” argument a step further,
arguing that it presents a “jurisdictional” bar to the defendants’ reliance
on Mercado’s affidavit. This argument is frivolous. Intership sued
Mercado. Of course Mercado can present evidence to defend himself.
And even if Mercado had not been sued, there would be no “standing”
or “jurisdictional” bar to any other party using his affidavit as evidence,
so long as it was relevant.

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1948) (holding that factual findings in an investigative report
are evidence of facts, not a proper subject of judicial notice).4
The NLRB’s findings could be preclusive on other grounds, but
Intership fails to make—much less sufficiently develop—any
such argument, and so it is deemed waived.
Thus, it has not been established that the UDEM that
appeared in this case is not the real party in interest; to the
contrary, that is a live dispute in a separate case. Moreover, the
relief that Intership requests—that the Court disregard
UDEM’s opposition and hold the “real” Local 1901 in
default—is manifestly unjust. If Intership sued an impostor,
and that impostor appeared and opposed Intership’s motions,
it is not at all clear why those events should be held against the
non-appearing real party.
The question remains how to proceed given the dispute
between UDEM and the ILA. Local 1740 asks that the Court
stay this case pending a determination of the dispute. Docket
No. 149. Notably, as Local 1740 points out, Judge Casellas has
followed this course—with all the parties’ consent—in another

4.

Likewise, and contrary to Intership’s arguments, see Docket No. 136, at
2, the Court cannot take “judicial notice” of facts in a complaint in
another case.

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case involving Intership, Local 1740, and UDEM. See Int’l
Shipping Agency Inc. v. Unión de Empleados de Muelles de P.R.,
Local 1901 ILA, Civ. No. 13-1756(SEC), ECF No. 67 (D.P.R. Aug.
13, 2015). Here, though, Intership “strenuously objects” to a
stay. Docket No. 149, at 1. It does so, it says, because the stay
was proposed by Local 1740 rather than Local 1901. But in my
mind, this fact is beside the point. Instead, I am concerned
about the possibility that the UDEM that has appeared is not
the “real” UDEM; if that is the case, the “real” party is not
represented and is without opportunity to defend itself.
Intership suggests that the Court simply order the appearing
UDEM to state whether or not it is Local 1901. Unfortunately,
the issue is not so simple: it is not even clear that two entities
exist, or, if they do, what their nature is. And of course this
Court hardly has jurisdiction to decide that dispute if one of
those two entities has not appeared here. Reserving the
question for the Court in Civ. No. 15-1750 thus seems the most
appropriate course.
For these reasons, I will grant the stay, but I will not do so
before ruling on the motion for summary judgment. This is for
two reasons: first, because both the ILA—through Local 1740
and its counsel—and the Mercado-affiliated UDEM—through

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its counsel—have had the opportunity to oppose Intership’s
motion; and second, because I decide the motion against
Intership. For these reasons, UDEM/Local 1901, whatever its
identity, cannot be prejudiced by the Court’s ruling. But
because going to trial without first deciding the ILA/UDEM
dispute would risk subjecting one of those entities to judgment
without representation, I will stay the case effective after the
denial of summary judgment.
2. Factual Background
Plaintiff Intership is a Puerto Rico corporation engaged in
the shipping and transportation business. It provides stevedoring services to shipping companies, loading and unloading
vessels that import and export goods through San Juan, Puerto
Rico.
Defendant UTEM, also known as ILA Local 1740, is a labor
organization based in San Juan affiliated with the International
Longshoremen’s Association–AFL-CIO

(“ILA”).

UTEM

represents stevedores working in San Juan, including employees of Intership. At all relevant times, Defendant Carlos
Sánchez-Ortíz was the president of UTEM. Defendant UDEM
is also a San Juan-based labor organization associated with the

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ILA representing, among others, Intership employees.5 At all
relevant times, Defendant René Mercado was the president of
UDEM. For decades UDEM and UTEM have represented
Intership’s employees, and the terms and conditions of that
relationship have been embodied by collective bargaining
agreements that have been extended from time to time.
Speaking more specifically, there appear to have been two
separate contracts negotiated between the defendant unions
and the employers. In these negotiations, the employers,
Intership included, were represented by the Puerto Rico
Steampship Association’s Bargaining Committee. One contract
applied to general cargo, and one applied to mechanized cargo.
According to Miguel Ayala-Morera, the Vice-President of Luis
Ayala Colón & Scrs. and, in 2012, the head of the Bargaining
Committee, when it came to mechanized cargo—which is all
Intership handled—the parties negotiated stipulations covering
specific conditions, and everything not covered by a specific
stipulation was covered by the general cargo contract.

5.

There is at present a dispute between UDEM and the ILA pending
before Judge Besosa; UDEM claims to have disaffiliated from the ILA,
while the ILA has purported to place UDEM in trusteeship. See Unión
de Empleados de Muelles de P.R. Inc. v. Int’l Longshoreman’s Ass’n AFLCIO, Civ. No. 15-1750(FAB) (D.P.R. filed June 3, 2015).

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It was in the 2004–2010 Mechanized Cargo Stipulation that
the parties included no-strike and arbitration clauses; these
clauses had been in effect since the signing of a 2001 agreement, which was incorporated into the 2004–2010 Mechanized
Cargo Stipulation.6 It is undisputed that the 2004–2010 Stipulation, including its no-strike and arbitration clauses, was
extended beyond 2010,7 and that these extensions applied to all
the unions;8 as I explain below, however, there is a dispute
regarding just when these extensions expired. The general
agreement, however, expired on September 30, 2013.
6.

The defendants purport to limit this fact to UTEM, but no UDEM,
“because those stipulations only apply to UTEM.” Docket No. 131-1,
¶ 70. For this, the defendants cite generally to the 13-page stipulation.
Of course, that violates the anti-ferret rule and the fact is deemed
admitted. Moreover, the first page of the stipulation refers to both
Locals 1901 and 1740.

7.

The defendants purport to admit this with regard to Local 1740, but not
Local 1901. No basis is stated for this partial denial, and this fact is
deemed admitted. However, there is an issue of fact as to the remainder
of Intership’s proposed fact, which states that the agreement was
extended on October 5, 2012, until December 31, 2012. Docket No. 126,
¶ 71. According to the defendants, the last extension expired on
January 31, 2012. Docket No. 131-1, ¶ 71.

8.

The defendants purport to qualify this fact, but they do so without
citing the record. See Docket No. 131-1, ¶ 72. The fact is deemed
admitted.

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It is agreed that the Mechanized Cargo Stipulation was
extended at least five times, including a written extension until
January 31, 2012.9 After January 2012, various drafts of a
written extension were circulated, but none were apparently
signed.10 According to Intership, there was also a verbal
extension that was effective through at least October 2012; this
fact is disputed by the defendants.
In spite of these undisputed facts, Intership, relying on
Mercado’s deposition testimony, proposes that the “general
agreement” establishes the arbitration procedures even for
companies, like Intership, that work only with mechanized
cargo. Docket No. 126, at 36. The deposition, however, is
ambiguous on this point. Mercado is first asked whether “the

9.

Intership purports to deny the facts in this paragraph, but it does so
solely on the basis of arguments made in its motion to strike, which
arguments have been rejected. The facts are thus deemed admitted.

10. The defendants propose that the Asociación de Navieros “recognized
that the” Mechanized Cargo Stipulation “expired on January 2012.”
Docket No. 131-1, ¶ II.10. For this, they rely on an undated declaration
(bearing a marginally-legible “received” stamp with the date March 16,
2012) purporting to stipulate to that fact, but also extend certain
agreements until May 31, 2012. Docket No. 131-14. The proposed fact
is deemed denied, however, because it is unsigned by any
representative of the Asociación. Id.

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general agreement provide[s] for” the arbitration procedure.
Docket No. 130-3, at 12. He responds, “Yes, but it is the same
one that is used for, for the mechanized one.” Id. (emphasis
added). This suggests that there are two agreements—a
general one and a mechanized one—and that the mechanizedcargo agreement uses the general agreement’s arbitration
procedures. That this is the case is driven home by Mercado’s
statement that “it”—presumably, the procedures—“was
adopted when the stipulations of mechanized cargo were
made.” Id.; see also id. (“In other words, the general conditions
were adopted . . . .”). Intership’s counsel then asks whether the
agreements were “integrated.” Id. Of course, this was an
improper question, as it asked for a legal conclusion. In any
case, Mercado’s response to the question is not clear. Then,
after further questioning, Mercado reiterates that there were
“two contracts.” Id. at 26. And though he says that the “general
provisions” of the CBA”apply to the mechanized cargo,” it is
not at all clear what he means—first, what the “general
provisions” are, and, second, whether they apply by their own
force or by reference in the mechanized cargo agreement.11 The
11. At another point, also relying on Mercado’s deposition, Intership
proposes that Mercado “admitted that the collective bargaining

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point being, I find the defendants’ denial of this proposed fact,
which relies on Mercado’s affidavit, effective, because when it
says that the Mechanized Cargo Stipulation is the one that
governs the relationship with Intership, it is not plainly
contrary to what Mercado stated in his deposition.12
On October 26, 2012, the M/V El Morro was docked at
Intership’s terminal, undergoing loading and unloading
operations. At the same time, the M/V Tropic Mist was docked
at Intership’s terminal waiting for such operations to begin. On
that day, Intership terminated and/or suspended some unionmember employees. According to the unions, Intership’s
actions were improper, and a work-stoppage ensued, led by

agreement with the mechanized cargo stipulation covers both, general
cargo and mechanized cargo.” Docket No. 126, ¶ 61. This is not quite
what Mercado stated. Rather, he was asked whether he had “delivered
to” Intership’s counsel “the collective bargaining agreement with the
mechanized cargo stipulation with Intership.” Docket No. 130-3, at 34.
Mercado replied in the affirmative and said, “Which refers to both
contracts, general cargo and mechanized cargo.” Id. Mercado thus
maintains the distinction between what he calls two contracts, which
distinction Intership repeatedly tries to elide. The proposed fact is thus
deemed denied.
12. Similarly, I reject the proposed fact at paragraph 37 because it calls for
a legal conclusion, i.e., whether the contracts were integrated. Docket
No. 136, ¶ 37.

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Sánchez, Mercado, and the defendant unions.
Subsequent to the October 26, 2012, work-stoppage,
representatives of the unions and Intership met. The unions
argued that the CBA required a meeting before disciplinary
action. At some point, a stipulation was signed in which all of
the parties agreed that they were not waiving any defense of
arbitrability or their rights “to submit the dispute”—to what is
not stated—“or the interpretation of the” CBAs. Docket No.
126, ¶ 53. At a second meeting, the suspended employees were
discussed, but not those that had already been terminated. But
because no agreement was reached at the second meeting,
Intership “notified that” the sanctions would stay in place
against two employees, Rafael Rivera and Joseph Caro; it is not
stated who Intership notified. Id. ¶¶ 54–55. The day before the
second meeting was held, Sánchez filed an arbitration petition;
in it, he stated that the CBA had been complied with. Arbitration was requested for sanctioned employees working for
Intership in mechanized cargo.13 These arbitration proceedings

13. Related to this point, Intership proposes a fact that is only half a
sentence; its subject is missing. Docket No. 126, ¶ 28 (“is [sic] properly
bound by the representations of its attorney in submissions to the
Court.”). The ambiguous fact is thus denied. In any case, it appears that
the proposed “fact” is actually a legal conclusion, and it would be

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are pending. At some point, it was “established”—it is not
stated by whom—that Intership violated a provision “of the
cargo agreement,”14 and it was agreed—again, it is not state by
whom—that a meeting would be held.15
Intership deems statements made during these arbitration
proceedings of the utmost important. Indisputably, the
defendant unions, through their presidents, repeatedly
invoked the CBA. For example, Mercado filed a charge before
the NLRB alleging discrimination against Caro and Rivera. In
various letters, Mercado stated that their suspension constituted a violation of the CBA. Mercado gave testimony before
the NLRB consistent with that statement.16 Likewise, Mercado
denied for that reason too.
14. In its proposed fact, Intership states that there was a violation “of the
general provisions,” by which Intership presumably means the CBA.
Docket No. 126, ¶ 50. I have used the language in the deposition on
which Intership relies, which appears—though it is not totally clear—to
refer to the mechanized cargo agreement. Docket No. 130-3, at 22.
15. The defendants purport to deny this fact on the grounds that “the
employer never accepted that [it] violated anything.” Docket No. 131-1,
at 7. This may be so, but the proposed fact is not to the contrary. The
fact is deemed admitted as restated above.
16. Intership also proposes that Mercado signed a verified complaint in
which it was alleged that UDEM and Intership were signatories to a

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has stated that the CBA required a meeting before disciplinary
action could be taken. This is an exhaustion requirement,
which Mercado says must generally be complied with before
petitioning for arbitration. According to Mercado, to apply for
arbitration, the petitioner fills out and submits a document to
Puerto Rico’s Department of Labor. This form asks whether the
petitioner has complied with CBA’s exhaustion requirements,
and if the petitioner has not, the employer can argue that the
dispute is not arbitrable.
3. Analysis
In its motion for partial summary judgment, Intership asks
the Court to hold the defendants liable for violations of section
301 of the Labor Management Relations Act, 29 U.S.C. § 185. In
essence, this provision permits labor organizations to be sued
by employers for violations of a contract between them. 29
U.S.C. § 185(a). The contractual provision Intership claims was

CBA that covered the period of October 1, 2007, until September 13,
2013. Docket No. 126, ¶ 65. But as the defendants point out, the court
in that case permitted them to withdraw that allegation. Unión de
Empleados de Muelles de P.R., AFL-CIO, Local 1901, ILA v. Int’l Shipping
Agency, Civ. No. 12-1920(FAB), ECF No. 20 (D.P.R. Jan. 14, 2013)
(permitting filing of amended verified complaint). Neither Mercado
nor UDEM can, then, fairly be held to that allegation.

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violated was a no-strike provision that it says was still in
operation as of the October 26, 2012, work-stoppage. The
question, then, is whether it is established for summary
judgment purposes that the no-strike provision was in effect in
October 2012.
There is no signed document in the record demonstrating
that the no-strike provision, which had been included in the
2004–2010 Mechanized Cargo Stipulation, was extended until
October 2012. To the contrary, the last written document in the
record only extended that clause’s effect until January 31, 2012.
According to Intership, though, an oral agreement extended
the clause still further, including through October 2012. See,
e.g., Docket No. 128-10, ¶ 9 (statement under penalty of perjury
of Miguel Ayala-Morera). The defendants, meanwhile, have
signed statements swearing that the clauses were not extended
beyond January 31, 2012, the last date covered by the written
extension. Plainly, then, the summary judgment record reveals
a factual dispute concerning whether the no-strike provision
was in effect on October 26, 2012. Summary judgment would
thus seem to be improper, because the defendant labor unions
cannot be liable for violating a clause not in effect at the time of
the supposed violation.

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Notwithstanding this straightforward reasoning, Intership
maintains that the Court should deem the no-strike provision
in effect as of October 2012 on the basis of “evidentiary and
judicial admissions” made by the defendants. See, e.g., Docket
No. 125, at 7. It is not clear what “evidentiary” admissions the
defendants are meant to have made; certainly, Intership has
failed to cite to any instance—in this case or elsewhere—in
which the defendants have admitted that the no-strike provision was extended to October 2012. Rather, Intership points to
numerous occasions in other proceedings in which the unions
have invoked the CBA in relation to the October 26, 2012, work
stoppage. According to Intership, these statements amount to
admissions that the no-strike provision was in effect because
“the no-strike promise is the quid pro quo for the agreement to
submit grievances to arbitration.” Docket No. 125, at 6 (citing
Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235
(1970)). Intership thus asks the Court to find that the unions’
invocation of the CBA’s grievance procedures necessarily
implies the existence of a no-strike provision.
Before wading into Intership’s argument, it is necessary to
consider the lens through which to look at the unions’ actions
in other forums. Intership calls them “judicial admissions,” but

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it is wrong to do so. Judicial admissions are, fundamentally,
admissions made in the case at bar; an admission made in one
case is not binding in another.17 United States v. Raphelson, 802
F.2d 588, 592 (1st Cir. 1986). Thus, an “admission” made by the
unions in another proceeding is not binding here.18 What the

17. In a lengthy footnote, Intership attempts to define the term “judicial
admission.” Docket No. 125, at 7 n.2. This definition omits the crucial
point that an admission made in one proceeding is not binding in
another. This is troubling because some of the sources Intership cites
acknowledge that very point, which cuts significantly against
Intership’s argument. See, e.g., 6 MICHAEL H. GRAHAM, HANDBOOK OF
FED. EVID. § 801:26 n.9 & surrounding text (7th ed.) (“All judicial
admissions in one case are only evidentiary admissions in another
case.”); Help At Home Inc. v. Med. Capital, L.L.C., 260 F.3d 748, 753 n.2
(7th Cir. 2001) (“[A] judicial admission is binding only in the litigation
in which it is made.”).
18. In a passage undeveloped enough to constitute waiver, Intership
adverts to principles of judicial estoppel. Docket No. 125, at 9–10. But
even if Intership’s argument were considered, it would fail. At a
minimum, “two conditions must be satisfied before judicial estoppel
can attach”: first, the two positions taken by the party must be “directly
inconsistent, that is, mutually exclusive”; and second, “the responsible
party must have succeeded in persuading a court to accept its prior
position.” Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23,
32–33 (1st Cir. 2004). As I explain below, however, it is not at all clear
that the unions’ positions are mutually exclusive; perhaps more
importantly, Intership fails to point to evidence that the unions won on
this point in another forum. Judicial estoppel is therefore inapplicable.
Interestingly, the record suggests that judicial estoppel might be

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unions said elsewhere may be probative evidence, but, like any
other evidence, it is subject to contradiction. Id. Correctly
considered, then, the unions’ statements in other proceedings
regarding the vitality of the CBA’s arbitration clause do not
bind them in this case. The unions are entitled to offer evidence
contradicting or distinguishing their previous statements, and
at trial the factfinder will weigh that evidence as appropriate.19
Moreover, it is not at all clear that the logical connection

more appropriate against Intership. An arbitration award in the record
suggests that it had argued that as of October 26, 2012, no arbitration or
no-strike clause was in effect; thus, argued Intership, the dispute was
not arbitrable. See Docket No. 131-21, at 3. The arbitrator apparently
agreed, holding that because “no collective bargaining agreement was
in force or any other agreement between the parties to submit” the
complaint for arbitration, the dispute was not arbitrable. Id. at 3–4.
According to Intership, this is an incorrect characterization of its
arguments, but the document it cites for that proposition is illegible and
in Spanish, without a translation that I can find. See Docket No. 128-12.
In any case, I make no findings on this point, but note the matter
because it suggests a great deal of chutzpah in Intership’s accusations
against the unions.
19. Intership makes the confounding argument that the unions “are bound
by their admissions under” Federal Rule of Evidence 801(d)(2). Docket
No. 125, at 9. Rule 801(d)(2) stands for the hoary proposition that prior
statements of party-opponents are not hearsay. As Intership’s counsel
must know, this provision makes the unions’ representatives’ prior
statements admissible, not incontrovertible fact.

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that Internship tries to draw between invocation of the CBA
and the existence of a no-strike clause is even appropriate,
much less mandatory. An invocation is not necessarily an
admission that the CBA—much less its specific clauses—is in
effect, even if it is probative of that fact. To the contrary, such
an invocation could be mistaken, invalid, or meant to protect
some other right. Indeed, Intership’s own motion mentions this
third possibility: that in certain cases, resort may be made to an
expired CBA’s arbitration clause. Docket No. 125, at 8–9 (citing
Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991)). Reasoning circularly, Intership argues that such an exception cannot
apply because “the events related to this case occurred while
the CBA was in effect.” Id. at 9. But the defendants do invoke
Litton, arguing that they were invoking the CBA as it related to
certain terms that, unlike the arbitration and no-strike provisions, survive the CBA’s expiration. Docket No. 131, at 6–7
(citing Litton, 501 U.S. at 206)). To be sure, the defendants’
position isn’t entirely convincing, but neither can it be dismissed out of hand on the facts before me.
The bottom line is that while Intership has put forth
evidence that the arbitration and no-strike clauses were in
effect as of October 2012, it has not established that fact. Intersh-

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ip has failed to prove that the unions’ previous statements in
other courts mean what Internship believes they mean, much
less that they are binding on the unions in this forum. Accordingly, the unions may present evidence—as they have done in
their presidents’ sworn statements—that contradicts or
distinguishes the statements they’ve made elsewhere. Whether
the clauses were in effect in October 2012 is thus a question for
trial, and summary judgment is inappropriate.
4. Conclusion
For the reasons discussed above, Intership’s motion for
partial summary judgment, Docket No. 125, is DENIED.
Furthermore, Local 1740's motion to stay, Docket No. 148, is
GRANTED IN PART, and this case is STAYED pending the
resolution of the pending dispute between UDEM and the ILA
in Civ. No. 15-1750(FAB).20 Once that dispute is resolved, the
parties in this case have ten days to inform the Court of its
resolution.

20. The motions for summary judgment filed at Docket Nos. 79, 81, and 82,
along with their related motion, Docket No. 84, are deemed MOOT.
The following motions are granted: Docket Nos. 107, 117, 118, 121, 129,
132, 142, 144, 147. The Court furthermore NOTES the following
motions, the substance of which has been dealt with in this Order:
Docket Nos. 106, 127, 128, 130, 134, 137, 143, 145, 149, and 150.

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IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of August, 2016.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE