Midwest Terminals of Toledo, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 2017

365 NLRB No. 157 (N.L.R.B. 2017)

365 NLRB No. 157
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Midwest Terminals of Toledo International and Otis
Brown and Miguel Rizo, Jr. and Mark Lockett,
Sr. and Local 1982, International Longshore-
men’s Association, AFL–CIO. Cases 08–CA–
038092, 08–CA–038581, 08–CA–038627, 08–CA–
063901, 08–CA–073735, 08–CA–092476, 08–CA–
097760, and 08–CA–098016
December 15, 2017
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On March 31, 2015, the Board issued a Decision and
Order in this proceeding, which is reported at 362 NLRB
No. 57. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the Dis-
trict of Columbia Circuit.
Acting General Counsel Lafe E. Solomon issued the
consolidated complaints in this case on March 28, 2013
and April 29, 2013. On March 21, 2017, the United
States Supreme Court issued its decision in NLRB v. SW
General, Inc. d/b/a Southwest Ambulance, 580 U.S. __,
137 S. Ct. 929 (2017), holding that, under the Federal
Vacancies Reform Act of 1998, Solomon’s authority to
take action as Acting General Counsel ceased on January
5, 2011, after the President nominated him to be General
Counsel. See 2017 WL 1050977. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. SW General, supra, we have considered whether the
complaints are valid and whether the complaint allega-
tions are properly before the Board for decision. On Au-
gust 16, 2017, then-General Counsel Richard F. Griffin
Jr. issued a Notice of Ratification in this case that states,
in relevant part,
The prosecution of this case commenced under the au-
thority of Acting General Counsel Lafe E. Solomon
during the period after his nomination on January 5,
2011, while his nomination was pending with the Sen-
ate, and before my confirmation on November 4, 2013.
On March 21, 2017, the United States Supreme Court
held that Acting General Counsel Solomon’s authority
under the Federal Vacancies Reform Act (FVRA), 5
U.S.C. §§ 3345 et seq., ceased on January 5, 2011,
when the President nominated Mr. Solomon for the po-
sition of General Counsel. NLRB v. SW General, Inc.
v. NLRB, 580 U.S. __, 137 S. Ct. 929 (March 21,
2017).
I was confirmed as General Counsel on November 4,
2013. After appropriate review and consultation with
my staff, I have decided that the issuance of the com-
plaint in this case and its continued prosecution are a
proper exercise of the General Counsel’s broad and un-
reviewable discretion under Section 3(d) of the Act.
Congress provided the option of ratification by express-
ly exempting, pursuant to FVRA Section 3348(e)(1),
“the General Counsel of the National Labor Relations
Board” from the FVRA provisions that would other-
wise preclude the ratification of certain actions of other
persons found to have served in violation of the FVRA.
For the foregoing reasons, I hereby ratify the issuance
and continued prosecution of the complaint.
In view of the independent decision of General Counsel
Griffin to ratify the complaints and to continue prosecution
in this matter, we find that the complaint allegations are
properly before the Board for decision.
We have considered de novo the judge’s decision and
the record in light of the exceptions and briefs. We have
also considered the now-vacated Decision and Order, and
we agree with the rationale set forth therein. According-
ly, we affirm the judge’s rulings, findings,1 and conclu-

1 The General Counsel, Charging Party, and Respondent filed
statements of position on remand. The Order remanding the case to the
Board states that the Respondent “may raise its laches argument on
remand.” However, in its position statement, the Respondent does not
preserve its contention that the allegations arising from the charges
filed in Cases 08–CA–038092, 08–CA–038581, and 08–CA–038627
should be dismissed based on the doctrine of laches. Accordingly, we
view the Respondent’s argument as having been abandoned. Even if the
Respondent had properly raised this defense, we would affirm the judge
and the Board’s earlier rejection of this defense because the defense of
laches does not bar action by the Board, as a federal government agen-
cy, to vindicate public rights. See Entergy Mississippi, Inc., 361 NLRB
892, 893 fn. 5 (2014), enfd. in relevant part 810 F.3d 287 (5th Cir.
2015); F. M. Transport, Inc., 302 NLRB 241 (1991).
Member Kaplan agrees with then-Member Johnson’s dissenting
footnote in the now-vacated Decision and Order. 362 NLRB No. 57,
slip op. at 1, fn. 1 (2015). Thus, it is his view that the complaint allega-
tion based on Case 08–CA–038581, which alleged that the Respondent
violated Sec. 8(a)(1) by Supervisor Tim Jones telling employee Miguel
Rizo, Sr., that he could not hire people off the “regular” hiring list
because they had charges against the company, should be dismissed
because the General Counsel’s unexplained delay in processing and
litigating the charge was prejudicial to the Respondent's case. Contrary
to his colleagues, Member Kaplan disagrees that the Respondent
waived the defense of laches by failing to raise it in its position state-
ment. The fact that the court of appeals, in its order vacating the prior
decision, indicated that the Respondent could raise its laches argument
on remand did not amount to a requirement that the Respondent repeat
an argument already properly raised in its exceptions.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by refusing to assign Brown light-duty work from No-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
sions and adopt his recommended Order to the extent and
for the reasons stated in the Decision and Order reported
at 362 NLRB No. 57 (2015), which is incorporated here-
in by reference. The Order, as further modified herein, is
set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Midwest Terminals of Toledo International,
Inc., Toledo, Ohio, its officers, agents, successors, and
assigns shall
1. Cease and desist from
(a) Refusing and failing to comply with the dues-
checkoff provision of the May 22, 2012 memorandum of
understanding with Local 1982, International Long-
shoremen’s Association, AFL–CIO (the Union).
(b) Refusing to assign work to employees because of
their support for and activities on behalf of the Union or
other protected concerted activities.
(c) Threatening not to hire employees because they
filed grievances under the collective-bargaining agree-
ment and unfair labor practice charges with the National
Labor Relations Board.
(d) Threatening employees with future discipline be-
cause they filed a grievance.
(e) Coercively telling employees that the Union had
caused them to lose overtime.
(f) Threatening to remove from the job or discharge
employees because they engaged in union and/or other
protected concerted activity.
(g) Grabbing employees because they engaged in un-
ion and/or other protected concerted activity.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of the date of this Order, begin de-
ducting and remitting to the Union dues owed to it as
required under the terms of the May 22, 2012 memoran-
dum of understanding and reimburse the Union for the
losses resulting from its failure to deduct and remit union
dues since January 1, 2013, as set forth in the remedy
section of the judge’s decision.

vember 28 through December 2, 2008, we note that there are no excep-
tions to the judge’s finding that the General Counsel demonstrated that
the Respondent’s action was motivated by antiunion animus.
2 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. We shall
modify the Order to reflect this remedial change and we shall substitute
new notices to conform to the Order as modified.
(b) Make Otis Brown whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the judge’s decision.
(c) Compensate Otis Brown for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 8, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar year(s).
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful written
threat to discipline Miguel Rizo, Jr., and within three
days thereafter, notify the employee in writing that this
has been done and that the threat to discipline him will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Toledo, Ohio facility copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since June 1, 2008.

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 3
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. December 15, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse and fail to comply with the dues-
checkoff provision of our May 22, 2012 memorandum of
understanding with Local 1982, International Long-
shoremen’s Association, AFL–CIO (the Union).
WE WILL NOT refuse to assign work to you because of
your support for and activities on behalf of the Union or
your other protected concerted activities.
WE WILL NOT threaten not to hire you because you
filed grievances under the collective-bargaining agree-
ment and/or unfair labor practice charges with the Na-
tional Labor Relations Board.
WE WILL NOT threaten you with future discipline be-
cause you filed a grievance.
WE WILL NOT coercively tell you that the Union caused
you to lose overtime.
WE WILL NOT threaten to remove you from the job or
discharge you because you engaged in union and/or other
protected concerted activity.
WE WILL NOT grab you because you engaged in union
and/or other protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days of the Board’s order, deduct
and remit to the Union dues owed to it as required by the
parties’ May 22, 2012 memorandum of understanding,
and WE WILL reimburse the Union, with interest com-
pounded daily, for the losses resulting from our failure to
deduct and remit union dues since January 1, 2013.
WE WILL make Otis Brown whole for any loss of earn-
ings and other benefits resulting from out discrimination
against him, less any net interim earnings, plus interest.
WE WILL compensate Otis Brown for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 8, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful written threat to discipline Miguel Rizo, Jr., and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the threat to discipline him
will not be used against him in any way.
MIDWEST TERMINALS OF TOLEDO
INTERNATIONAL, INC.
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-038092 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4