MIDWEST TERMINALS OF TOLEDO INTERNATIONAL INC.

National Labor Relations Board - Administrative Judge Opinions

Jan 21, 2016

08-CA-119493 (N.L.R.B. Jan. 21, 2016)

JD–04–16
Toledo, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MIDWEST TERMINALS OF TOLEDO
INTERNATIONAL INC.
and Case 08-CA-119493
INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, LOCAL 1982, AFL-CIO
______________________________________________
MIDWEST TERMINALS OF TOLEDO
INTERNATIONAL INC.
and Case 08-CA-119535
PRENTIS HUBBARD, An Individual
Cheryl Sizemore, Esq.,
for the General Counsel.
Ronald L. Mason, Esq., and
Aaron T. Tulencik, Esq.,
Dublin, Ohio,
for the Respondent.
Otis Brown, Toledo, Ohio,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried: in Cleveland, Ohio, on
December 1, 2, and 3, 2014; in Toledo, Ohio, on January 27, 28, 29, and 30, and April 7, 8, and
9, 2015; and in Bowling Green, Ohio, on April 20, 2015. The International Longshoremen’s
Association, Local 1982, AFL-CIO (the Union, the ILA, or the ILA local) filed the charge in case
08-CA-119493 on December 23, 2013, and amended charges on February 13 and April 30,
2014. Prentis Hubbard, an individual, filed the charge in case 08-CA-119535 on December 23,
2013, and amended charges on February 10, March 18, and April 22, 2014. The Acting
Regional Director for Region 8 of the National Labor Relations Board (the Board) filed the
Consolidated Complaint (the Complaint) on April 30, 2014. The Complaint alleges that Midwest
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2
Terminals of Toledo International Inc. (the Respondent) violated Section 8(a)(5) when it
reassigned certain bargaining unit work involving aluminum and calcium to non-unit employees,
ceased to provide on-the-job and formal training for unit employees on cranes and mobile
equipment, allowed supervisors and other non-unit employees to perform unit work, changed its
grievance procedure, and refused to pay union steward Hubbard for a portion of a shift on which 5
he was injured. The Complaint also alleges that the change in grievance procedures was
inherently destructive of Section 7 rights in violation of Section 8(a)(3) and (1). The Complaint
further alleges that the Respondent violated Section 8(a)(1) by making threatening statements
to Hubbard and Don Russell, and by restricting Russell’s movements around the facility.
10
The Complaint also alleges that the Respondent discriminated in violation of Section
8(a)(3) and (1) and Section 8(a)(4) and (1) of the Act when it discharged union steward Otis
Brown and when it refused to pay Hubbard for a portion of a shift on which he was injured, and
that it discriminated in violation of Section 8(a)(3) and (1) when it disciplined and refused to hire
two employees who appeared for an assignment without protective eye glasses and when it 15
restricted Russell’s movements around the facility and disciplined him.
The Respondent filed a timely Answer in which it denied that it had committed any of the
alleged violations. On the entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I 20
make the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION25
The Respondent, a corporation, provides stevedoring services at its facility in Toledo
Ohio. From these activities, the Respondent derives annual gross revenues in excess of
$500,000. The Respondent admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor 30
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. BACKGROUND FACTS35
Since 2004, the Respondent has provided stevedoring and warehousing services at the
Port of Toledo in Toledo, Ohio. Its work includes unloading and loading cargo vessels, railcars
and trucks, and moving cargo to and from warehouses. The Respondent and its predecessors
at the port facility have a decades-long bargaining history with the ILA. The Respondent also40
has a separate bargaining relationship with unit of employees that are represented by
Teamsters Local 20 (Teamsters). Generally, the ILA unit performs stevedoring and warehouse
work on what is known as the “wet side” of the Respondent’s facility, while the Teamsters unit
works on the “dry side.” The wet side of the facility runs along the Maumee River where the
vessels dock in order to be unloaded or loaded. To do their work, the ILA workers operate a 45
variety of types of equipment, including forklifts, front end loaders (end loaders), and cranes.
The “order of call” list for April 2014 lists 36 individuals in the ILA bargaining unit.1 Of those
individuals, six were “skilled list” employees who were generally expected to work on a daily
basis during the shipping season. The other employees were on the “regular list,” which meant
they worked more intermittently and generally only when there was no skilled list employee 50

1
The order of call list is prepared by the Respondent with input from the ILA.
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3
available and qualified to do the work. If, after the skilled list and regular list had been
exhausted, there were still openings, the Respondent hired from the casual/new-hire list.
The Teamsters unit performs warehouse work on the “dry side” of the facility, which
does not abut the Maumee River. The dry side of the facility is separated from the wet side by 5
St. Lawrence Drive, a road that runs through the property. There are a total of six warehouses
at the facility – three on the wet side and three on the dry side. To do their work, the Teamsters-
represented employees generally operate forklifts.
The most recent collective bargaining agreement between the Respondent and the ILA210
covered the period from January 1, 2006, to December 31, 2010. At the time of the hearing,
and of all the alleged violations, the Respondent and the ILA continued to be bound by the
terms of this expired agreement. The evidence shows that during a period from approximately
April 2010 to July 2012, the ILA local was placed in trusteeship based on the perceived failure of
the local officers to process grievances and carry out other daily duties. During the trusteeship,15
officials of umbrella ILA organizations served as the trustees of the ILA local. In July 2012, local
leadership took control back from the trustees. Otis Brown, whose discharge is a subject of the
Complaint, became the new president of the ILA local at that time.
B. LOADING AND TRANSFER OF ALUMINUM 20
Facts
1. Past Practice: The General Counsel alleges that since about July 1, 2013, the
Respondent has violated Section 8(a)(5) and (1) of the Act by unilaterally depriving ILA-25
represented employees of work regarding the loading and/or transfer of aluminum cargo. When
barges carrying aluminum dock at the Respondent’s facility, ILA-represented employees unload
the aluminum and stage it on the wet side of the dock. The evidence shows that from at least
the time the Respondent took over the dock operation in 2004 until August 2013 the established
practice was that the aluminum staged on the wet side was transported to warehouses on the 30
dry side using transfer trucks. Those trucks were loaded by ILA-represented employees using
forklifts, but driven by non-ILA employees. After the trucks were loaded, the ILA workers would
have no further involvement with that aluminum. During some period of time before 2010, the
Respondent’s Teamsters-represented employees drove the transfer trucks that ILA members
loaded, but during the time period immediately preceding the alleged violation, employees of a35
third-party trucking company drove the trucks.
The dispute involves the Respondent’s decision to stop using ILA workers to load
aluminum onto trucks prior to moving it from the wet side to the dry side, and instead have
Teamsters-represented employees enter the wet side of the dock on forklifts, and use those 40
forklifts to scoop up the aluminum and move it to the dry side of the dock. This change meant
that the ILA-represented employees were deprived of the work of loading the aluminum for
transport to the dry side. Terry Leach, the Respondent’s director of operations since July 2007,
testified that the new system allowed him to move the aluminum “ten times faster” than the
system that used transfer trucks loaded by the ILA members.45
At the hearing, the Respondent contended that before the time of the alleged change it
was already the company’s practice to have Teamsters-represented employees drive forklifts

2
That collective bargaining defines the unit as comprised of “employees of the Company in stevedore
and warehouse operations such as longshoremen, warehousemen, crane operators, power operators,
checkers, signalmen, winchmen, linemen, line dispatcher, dock steward and hatch leaders.”
JD–04–16
4
onto the wet side of the dock to pick up the aluminum and carry it back to the dry side of the
dock. That contention is rebutted by the credible evidence. Multiple witnesses for the General
Counsel, including present and former employees Brown, Christopher Fussell, Kevin
Newcomer, and Miguel Rizo credibly testified that it was a change in the established practice
when, in 2013, the Respondent began having Teamsters enter the wet side on forklifts to 5
transfer aluminum to the dry side. This testimony from the General Counsel’s witnesses was
supported even by the Respondent’s own witness, Charles Erichson, a Teamsters steward who
has worked at the facility since before the Respondent took over the operation. Erichson
testified that the standard practice had always been for aluminum to be moved from the wet side
to the dry side using transfer trucks loaded by the ILA employees. Erichson did recount that, for 10
a period in 2005 and 2006, the Respondent had occasionally used Teamsters-operated forklifts
to transfer aluminum from the wet side to the dry side when the quantity was small, but he
stated that even during that period the ILA-loaded transfer trucks were the standard means of
moving the aluminum. Erichson testified that even this limited use of Teamster-operated
forklifts to transfer aluminum from the wet side had ceased after about 2006.15
I find that the testimony recounted above, and the record as whole, outweighs Leach’s
contrary assertion that having Teamsters members transport aluminum by driving forklifts onto
the wet side of the facility was not a change from the past practice. That assertion was contrary
to Leach’s own prior sworn statement recognizing that the Respondent had previously moved 20
the aluminum by having the ILA members “load[] the material in third-party trucks.” See
Transcript at Page(s) (Tr.) 539 ff. Moreover, Leach’s testimony that there was not a change in
practice is inconsistent with his contemporaneous efforts, described below, to justify using
Teamsters-operated forklifts to transfer aluminum from the wet side by claiming that doing so
was a change authorized by a recent – April 30, 2013 – decision by the Board.3 Similarly, Brad 25
Hendricks, the Respondent’s operations manager, identified the Board’s April 30 decision,
rather than past practice, as the Respondent’s basis for beginning to send Teamsters-
represented employees to the wet side on forklifts to transport material. Tr. 1245-1246.
2. Prior Jurisdictional Decision: On April 30, 2013, the Board issued a decision in a 30
jurisdictional dispute proceeding under Section 10(k) of the Act regarding the division of work

3
In general, I found Leach a less than fully credible witness regarding disputed matters. His
testimony was, by turns, unusually evasive, see e.g., Tr. 1790-1794 (avoids answering reasonable
questions by repeatedly claiming that he does not understand them, and by interposing his own objection
that a document speaks for itself), Tr. 1797-1798 (convenient lapses in memory), Tr. 723 (When asked if
he knew whether a maintenance employees requested that an outside mechanic state in his report that
an ILA member’s error was the cause of damage, Leach did not initially answer, but rather adopted an
indignant demeanor and stated “Why would [the maintenance employee] do something like that?” As
discussed, infra, the record shows that, in fact, the maintenance employee did make such a request to
the outside mechanic.), and self-contradictory, see, e.g., Tr. 1737-1740 (Leach testifies that Teamsters
were “busy bees” on the wet side of facility and used forklifts to transfer cargo from the wet side to the dry
side, but in his prior affidavit Leach stated that if product needed to be transferred from the wet side to the
dry side the Respondent used transfer trucks), Tr. 1805-1808 (first Leach testifies that Brown did not
unload ships using the Liebherr cranes prior to becoming certified, then Leach testifies that he does not
recall whether Brown unloaded ships using the Liebherr cranes prior to becoming certified, and then
Leach emphatically testifies that Brown did not unload ships using the Liebherr cranes prior to becoming
certified). Moreover, some of Leach’s behavior on the stand bordered on bizarre. For example, at one
point when counsel for the General Counsel directed his attention to portions of an exhibit, Leach
dramatically lurched back in the witness stand and raised his hands as if to fend off a physical attack by
counsel. In another, he excitedly interrupted counsel for the General Counsel’s examination and
complained that counsel did not have to “yell at” him, even though counsel was posing questions in a
manner that was measured and appropriate in both volume and tone. Tr. 551-552.
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between the ILA unit and the Teamsters unit at the Respondent’s facility. 359 NLRB No. 107
(2013).4 In that decision, the Board considered the applicable standards and decided to assign
work between the ILA unit and the Teamsters unit “in accordance with the Employer’s past
practice.” The Board rejected the Respondent’s request to have the disputed work assigned
exclusively to the Teamsters unit since the Respondent’s request was, in the Board’s words,5
“unsupported by considerations of economy, efficiency, or skill, and it is contrary to the
Employer’s past and current practice.” The Board held that the ILA employees were “entitled to
perform, in a manner consistent with past practice, all loading, unloading and movement of
cargo and material on the wet side of St. Lawrence Drive . . . including the loading of any trucks
used to transfer cargo and materials across St. Lawrence Drive, subject to the proviso set forth 10
below.” The Board further stated that the Teamsters employees “are entitled to perform the
loading, unloading, and movement of cargo and materials on the east/dry side of St. Lawrence
Drive at the Employer’s facility; provided, that these employees are also entitled to enter the
west/wet side of the facility in order to transport cargo that is to be transferred from the wet side
to the dry side across St. Lawrence Drive.” "As to the work of transporting cargo from the wet 15
side over to the dry side, currently being performed by the [third-party] trucking company,” the
Board explained, “we award the work to the Teamsters-represented employees because they
are capable of performing this work and did so before the Employer contracted with the trucking
company in 2007.” The Board in no way suggested that in awarding the existing work of
transporting material from the wet side to the dry side to the Teamsters unit, it was authorizing 20
the Respondent to deprive the ILA-represented employees of the work that they had historically
done loading the transfer trucks. In fact, the Board’s decision makes multiple references to
continuing the past practice and to the past practice of using trucks loaded by the ILA unit to
perform this work, but make no reference at all to Teamsters members on forklifts entering onto
the wet side of the facility. The Respondent’s claim that the Board’s jurisdictional decision 25
deprived the ILA-represented employees of the right to the aluminum loading work that those
employees had performed under the established past practice is consistent with what the
Respondent tried to accomplish during that proceeding, but it is not consistent with what it
actually did accomplish. That decision did not authorize the Respondent’s action and, if
anything, is at odds with it, since the Board explicitly awarded the ILA-represented employees30
the work of loading trucks to transport material from the wet side to the dry side consistent with
past practice.
3. Subsequent Confrontations at the Dock Regarding the Use of Teamsters-Operated
Forklifts to Transfer Aluminum: On June 1, 2013, the Respondent had Teamsters-represented 35
employees drive three to five forklifts to the wet side of the dock to pick up and move aluminum
to the dry side of the dock. The ILA immediately challenged the Respondent’s action and when
the Respondent did not cease, the ILA employees stopped staging the aluminum where the
Teamsters employees could reach it on their forklifts. Then three ILA unit employees –
Hubbard, Fred Victorian Jr.,5 and Russell Sims – met with Leach about the matter. Leach told 40

4
This Section 10(k) decision was issued by the Board during the period when the Supreme Court
later held that the Board lacked a valid quorum. See NLRB v. Noel Canning, See NLRB v. Noel Canning,
____ U.S. ____, 134 S.Ct. 2550 (2014). However, no party to the Section 10(k) proceeding appealed the
Board’s decision. Therefore, the Board’s decision regarding how work at the Respondent’s facility is to
be divided between the ILA unit and the Teamsters is binding on the parties to that dispute. The General
Counsel and the Respondent discuss the Section 10(k) decision in their posthearing briefs in the instant
case, but neither contends that the validity of the Board’s jurisdictional determination is undermined by
Noel Canning.
5
There are references in the record to four different employees with the surname Victorian. Of those
four, Fred Victorian Jr. plays the most prominent role in the litigation and I refer to him in this decision as
“Victorian.” The only other one of the four who is discussed in this decision is Joe Victorian Sr., and I
JD–04–16
6
the three employees that the Board’s April 30, 2013, decision in the 10(k) proceeding had
authorized the Respondent to use the Teamsters to pick up the aluminum on forklifts. Hubbard
contradicted that, stating that the Board ruled that the Teamsters could transport the aluminum
consistent with the past practice of using trucks loaded on the wet side by ILA-represented
employees. Victorian seconded Hubbard’s position, and the conversation between Hubbard 5
and Leach became heated. Leach held his thumb and index finger close together and told
Victorian, “I’m about this far off your ass.” Eventually, Leach told Hubbard that the ILA-
represented employees should go back to work and that he had directed the Teamsters-
represented employees to stop using forklifts to retrieve aluminum from the wet side of the
facility.10
Approximately 2 months later, on August 5, Leach raised the issue again – informing
Hubbard that Teamsters-represented employees would be driving to the wet side on forklifts
that day to pick up and move aluminum. Hubbard responded that this was not permissible, and
Leach said that he would contact Brown about the issue. Subsequently, Hubbard talked to 15
Brown, who told Hubbard to have the ILA-represented employees gather where the Teamsters-
represented employees were driving forklifts onto the wet side of the facility. The ILA members
blocked the path of the Teamsters members and one of the ILA members urged the Teamsters
not to “come over here and start no shit." Leach and Brown both arrived at the scene, and
Brown stated to Leach, “you can’t have them coming over here taking our stuff.” Leach showed 20
Brown a copy of the Board’s April 30 decision in the Section 10(k) case and told Brown that the
decision provided that the Teamsters-represented employees could enter the wet side on
forklifts to retrieve the aluminum. Brown disputed Leach’s claim about what the decision said,
and eventually Leach said, “It’s going to stop now. Y’all go on back to work.” The ILA members
resumed their normal duties. On August 10, the ILA received information that Teamsters 25
members were again moving material from the wet side using forklifts. Since approximately that
time, the Respondent has been having Teamsters members use forklifts to move aluminum
from the wet side to the dry side of the facility.
Analysis30
The General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally changing its practice regarding the ILA-represented employees’ participation
in the transfer of aluminum from the wet side of the facility. As discussed above, in the late
summer or early fall of 2013, the Respondent changed how it moved aluminum from the wet 35
side to the dry side of the facility in a manner that deprived the ILA-represented employees of
work loading the aluminum. Where, as here, employees are represented by a union, their
employer violates Section 8(a)(5) of the Act by making a unilateral change regarding a
mandatory subject of bargaining. NLRB v. Katz, 369 U.S. 736 (1962); Whitesell Corp., 357
NLRB No. 97, slip op. at 53 (2011); Ivy Steel & Wire, Inc., 346 NLRB 404, 419 (2006); Mercy 40
Hospital of Buffalo, 311 NLRB 869, 873-874 (1993); Associated Services for the Blind, 299
NLRB 1150, 1164-1165 (1990). The Board has held that such changes include ones that
eliminate bargaining unit work or reassign it to non-unit individuals. Mi Pueblo Foods, 360
NLRB No. 116, slip op. at 1-3 (2014); O.G.S. Technologies, 356 NLRB No. 92, slip op. at 4-6
(2011); Spurlino Materials, LLC, 353 NLRB 1198, 1218-1219 (2009), enfd. 645 F.3d 870 (7th 45
Cir. 2011); Winchell Co., 315 NLRB 526 (1994), enfd. 74 F.3d 1227 (3d Cir.1995). The
prohibition on unilateral changes applies to established past practices even if, as in the case of
the aluminum work at issue here, the practices are not set forth in a collective bargaining
agreement. Golden State Warriors 334 NLRB 651, (2001), enfd. 50 Fed. Appx. 3 (D.C. Cir.
2002); Exxon Shipping Co., 291 NLRB 489, 493 (1988). In this case, the Respondent did not 50

refer to him as “J. Victorian.”
JD–04–16
7
give, and does not claim to have given, notice and an opportunity to bargain before making a
change that deprived the ILA-represented employees of aluminum loading work that they had
been performing for many years under the established practice.
In its brief, the Respondent defends its actions by arguing, as it did to the ILA local, that 5
the change was authorized by the Board’s prior Section 10(k) decision. As discussed above,
that decision awards the Teamsters-represented employees work that at that time was being
performed by a third-party trucking company. That work consisted of driving trucks onto the wet
side of the facility in order to transport material to the dry side of the facility. The decision
discusses the established past practice of having the ILA-represented employees load the 10
aluminum onto those trucks and awards all loading work on the wet side of the facility to the
ILA-represented employees. Contrary to the Respondent’s contention, there is nothing in that
decision stating that any loading work on the wet side is being awarded to the Teamsters-
represented employees, nor is there anything that authorizes a change that would deprive the
ILA members of loading work that it was the established past practice for them to perform. I 15
reject the Respondent’s defense and find that it failed to bargain in good faith, and therefore
violated Section 8(a)(5) and (1), when it made a change that deprived the ILA-represented
employees of work loading aluminum on the wet side of the facility without giving the ILA notice
and an opportunity to bargain.
In reaching the conclusion that the Respondent violated Section 8(a)(5) and (1) with 20
respect to the aluminum loading work, I was given pause by Leach’s suggestion that the
loading work that the ILA is trying to preserve is not necessary work. However, the Respondent
does not make a factual or legal argument on that issue and I am left with little other than, on
the one hand, Leach’s statement that he could accomplish the task “ten times faster” by
eliminating the ILA loading work and, on the other hand, the long history of management relying 25
on the ILA loading work to accomplish that task. Relative to this concern, I make clear that I am
not awarding the ILA the work of loading aluminum for transfer from the wet side to the dry side,
but only requiring that the Respondent restore the status quo in that regard while it meets its
obligation to bargain with the ILA in good faith. It could be that such bargaining will not result in
the preservation of that work because of benefits that might flow from eliminating it, but the 30
arguments in that regard should in the first instance be discussed between the Respondent and
the ILA in the bargaining context. As the Supreme Court has noted, even when “it is not
possible to say whether a satisfactory solution could be reached, national labor policy is
founded upon the congressional determination that the chances are good enough to warrant
subjecting such issues to the process of collective negotiation.” Fibreboard Paper Products, 35
Corp. v. NLRB , 379 U.S. 203, 214 (1964). Such bargaining may lead the parties to a mutually
acceptable agreement, or it may lead to an impasse that will privilege the Respondent to make
the change unilaterally.
For the reasons discussed above, I find that since August 2013 the Respondent has 40
violated Section 8(a)(5) and (1) by unilaterally changing its established past practice regarding
the transfer of aluminum at the facility in a manner that deprived the ILA unit of loading work that
it had performed under the established past practice.
45
50
JD–04–16
8
C. LOADING, UNLOADING AND TRANSFER OF CALCIUM
Facts
The complaint alleges that, since about November 8, 2013, the Respondent violated 5
Section 8(a)(5) and (1) by unilaterally reassigning the loading, unloading, and shipping of
calcium to non-bargaining-unit employees. The General Counsel clarifies that the Respondent
allegedly did this by changing its practice of transmitting calcium by truck to ILA-serviced
warehouses where it would be unloaded by ILA members and unilaterally beginning to have the
trucks transmit the calcium instead to Teamsters-serviced warehouses where it would be 10
unloaded by Teamsters members.
The evidence showed that the Respondent stores cargo at various warehouses,
including three on the wet side and three on the dry side of its facility. Some types of cargo can
only be stored in warehouses that have a special certification or trade status. However, the 15
parties have not demonstrated that the storage of calcium was subject to these constraints. The
record does not explain with any specificity how the Respondent goes about choosing which of
the available and permissible warehouses it uses to store a particular shipment.
Multiple witnesses for the General Counsel, including Brown and Rizo, gave credible 20
testimony that, prior to November 2013, the Respondent’s practice was for ILA members to
unload the calcium cargo from barges onto the dock and then load the cargo onto trucks that
transported the calcium exclusively to ILA-serviced warehouses where ILA members unloaded
it. In November 2013, the Respondent changed this practice and began to have the trucks
transport the calcium to Teamsters-serviced warehouses where the ILA members would have 25
no involvement with unloading it. I credit this account, which was not meaningfully contradicted.
In November 2013, when ILA members observed that the trucks were moving the
calcium to Teamsters-serviced warehouses rather ILA-serviced warehouses, the ILA protested
by ceasing to unload the calcium from the barge. About an hour after this conflict arose, Leach 30
told the ILA members that “it had been resolved, go back to work.” The ILA members complied,
and resumed unloading the calcium from the barge. That day, the Respondent did not transport
any more loads of calcium to the Teamsters-serviced warehouses, but it has subsequently
resumed doing so. The Respondent made this change without giving the ILA notice and
opportunity to bargain.35
Analysis
As discussed above, an employer violates Section 8(a)(5) and (1) of the Act, if it does
not give the collective bargaining representative of employees notice and an opportunity to 40
bargain before making a change that eliminates bargaining unit work or reassigns it out of the
bargaining unit. See, e.g., NLRB v. Katz, supra, Mi Pueblo Foods, supra, O.G.S. Technologies,
supra, Spurlino Materials, supra. The Respondent committed such a violation here by
unilaterally changing its established practice6 of using ILA unit members to unload calcium from

6
The General Counsel asserts that, under the collective bargaining agreement, the calcium is
“designated as product to be handled,” by the ILA. To the extent that the General Counsel is contending
that the Respondent’s action violated a condition established by the collective bargaining agreement (as
opposed to a condition established through past practice) I reject that contention. The collective
bargaining agreement does include a list of over 30 categories of “obnoxious and distressed cargo,”
including calcium nitrate and calcium chloride, and provides that ILA members are entitled to premium
pay if they handle those types of cargo. Joint Exhibit (J Exh.) 1 at Section 15. The contract does not,
JD–04–16
9
transfer trucks at ILA-serviced warehouses, and instead beginning to use Teamsters unit
members to perform the calcium unloading work at Teamsters-serviced warehouses.
The Respondent does not deny that it made this change, or attempt to assert that
special circumstances justify making the change without good faith bargaining. Instead, as with 5
the change to aluminum work, the Respondent contends that the Board’s April 30 decision in
the Section 10(k) jurisdictional case authorized its action. That contention is without merit. The
fact that that decision awards the Teamsters unit any work transporting material from the wet
side to the dry side, in no way suggests that the Board is authorizing the Respondent to
unilaterally change its established practice of storing coal in ILA-serviced warehouses. The 10
Respondent’s argument is another example of it confusing what it tried to accomplish during the
Section 10(k) proceeding with what it actually accomplished.
I want to make clear that I am not suggesting that the Respondent is prohibited from
changing its practice of assigning to ILA employees the work of unloading calcium from trucks. 15
The Respondent did not violate the Act because it made such a change, but because it made
such a change without giving the bargaining representative of the ILA unit notice and an
opportunity to bargain. As with the aluminum work discussed above, the Respondent will be
required to restore the status quo ante pending good faith bargaining.
20
For the reasons discussed above, I find that since November 2013 the Respondent has
violated Section 8(a)(5) and (1) by unilaterally reassigning calcium unloading work historically
performed by the ILA bargaining unit employees to others outside the unit.
D. TRAINING ON CRANES, FORKLIFTS, AND END LOADERS25
Facts
The General Counsel alleges that the Respondent’s past practice under the collective
bargaining agreement included offering both formal and informal training to ILA-represented 30
employees on the operation of cranes, forklifts and end loaders and that the Respondent
unilaterally changed these practices in that “by early July 2013” it “had no intention of training
employees.” The Respondent denies this, and contends that it has continued to offer training to
the ILA employees and that any changes to the manner in which it offered that training occurred
outside the 6-month charge filing period under Section 10(b) of the Act. 35
When Leach began working for the Respondent in 2007, he found that the company did
not have training records evidencing the qualifications of employees who the company was
treating as qualified to operate various types of equipment. He decided to “grandfather in” all
the employees who the Respondent already recognized as qualified, but he also wanted to get 40
something “on the record” showing “we did try to provide training, formal setting, third party, that
actually qualified these guys as far as what they could and could not do on a piece of
equipment.” The record indicates that Leach did make efforts to do that, but that such efforts
proceeded somewhat lurchingly and not always in the same direction.
45
1. Crane Training: Operating the cranes requires a greater level of skill and training
than operating the end loaders and forklifts, and the ILA members who operate cranes at the
Respondent’s facility receive the highest rate of pay of any of the unit employees. The

however, provide that the handling of any of the types of obnoxious cargo listed is to be performed
exclusively by the ILA unit, or even provide that the ILA will perform any such work.
JD–04–16
10
collective bargaining agreement includes a section on training that specifically discusses crane
operators. Joint Exhibit (J Exh.) 1, Section 28. That section states in relevant part:
The Company will man the crane operator’s position as work
opportunities warrant both in terms of seniority and in terms of work 5
availability. When such conditions warrant, a crane operator trainee will
be placed in the crane along with the crane operator for purposes of
training.
The training provision in the agreement also includes general language that is broad enough to 10
cover training on the cranes, as well as the end loaders and forklifts. That language provides in
part:
The company shall provide reasonable training opportunities for all
employees in all classifications. In this regard, the Company shall 15
implement a training program for each classification within one hundred
eighty days of the effective date of this Agreement. Further, the
Company will allow bargaining unit employees to train with equipment
during off hours under the following conditions:
20
1. The employee provides reasonable notice to the Company of at
least forty-eight hours;
2. The employee shall not be paid for such “off hours” training;
3. The Company has equipment available for such off hours
training that will not impede with the regular operational maintenance 25
schedules of the equipment;
4. The Company will establish the times of year, days of the week
and times of the day when training may be conducted;
5. Hours spent training during “off hours” will not count towards
seniority;30
6. The Company will not be required to provide paid supervision
during off hours training.
The Company may schedule additional training sessions with outside
suppliers.35
Over the course of the last number of years the type of cranes the Respondent’s
employees operated changed, and this has had implications for the crane training required.
Until 2010, the Respondent operated two types of cranes – known as Gantry cranes and Lucas
cranes – at the facility. Employees received informal, on-the-job, training to operate these 40
cranes, not formal training by third parties. The informal crane training for employees who had
no prior crane operation experience generally consisted of the following: first, the trainee
performed maintenance on the crane under the instruction of an experienced operator; second,
the trainee sat in the cab of the crane and observed as an experienced individual operated the
crane; and third, the trainee operated the crane while an experienced operator was present in 45
the cab to provide oversight. The third step is referred to at the facility as “seat time.” The
contract provides that the trainee is to provide the Respondent with at least 48 hours’ notice
when he or she plans to train on the equipment during off hours, but there was testimony that
Leach, or another manager, was sometimes the one that initiated the seat time training.
50
The experienced operator who provided almost all of the informal training during the
years leading up to alleged unlawful change was John Murphy. Witnesses identified Murphy as
JD–04–16
11
the crane supervisor or the crane “guru” and the record indicates that he had many decades of
experience operating the cranes.7 The training that Murphy provided was “informal” only in the
sense that it was not run by a third-party training entity. The record establishes that Murphy’s
training was, in fact, very methodical and demanding. Brown, Fussell, and Newcomer were
among those ILA-represented employees who became qualified crane operators under 5
Murphy’s tutelage. The record does not pinpoint when Murphy last trained a unit employee to
operate a crane, although it does show he trained Newcomer in 2008 and Fussell who began
working for the Respondent in June 2008, and there was uncontradicted testimony that Murphy
continued to provide training until his failing health prevented him from continuing to do so.
Murphy died at some point between approximately late 2011 and early 2012. The Respondent 10
designated Jordan Salhoff, a maintenance employee who is not affiliated with the ILA, to be
Murphy’s successor as crane supervisor.
In approximately 2010, the Respondent began using two new, more modern, mobile
cranes, known as the Liebherr cranes. At that time, the Respondent ceased operating the 15
Gantry cranes and later, in the beginning of 2014, the Respondent also ceased operating the
Lucas cranes. The Liebherr cranes are not owned by the Respondent, but rather by the Port of
Toledo, which allows the Respondent to operate them, but places conditions on such operation.
The Port’s conditions, which are set forth in a letter from the Port to the Respondent and were
also testified to by witnesses, include that all crane operators for the Liebherr cranes must be 20
certified by the National Commission for the Certification of Crane Operators (NCCCO). See
General Counsel Exhibit (GC Exh.) 11. However, neither that letter nor the testimony, show that
the Port was requiring that crane trainees obtain NCCCO certification before receiving informal
training on the Liebherr cranes under the direct oversight of individuals who were NCCCO
certified.25
In early 2010, just prior to the start of the trusteeship period, the Respondent notified
employees that it would be bringing in the Liebherr cranes and that operators would require
additional certification to qualify to operate them. Brown, who was not yet president of the ILA
local, initiated a grievance over this development. Later in 2010, when the trustees assumed 30
control of the ILA local, the Respondent met with the trustees and informed them about the
switch to the Liebherr cranes and explained that the Port was requiring that the crane operators
for that equipment be NCCCO certified. The ILA trustees did not agree to the NCCCO
certification requirement, which they understood as being relevant to construction work, not
maritime work, and which, in the trustees’ experience, was not imposed on ILA-represented 35
crane operators at other ports. Despite the ILA’s position, the Respondent selected individuals
who it had previously deemed to be qualified crane operators to attend a 5-day formal NCCCO
training with a third-party trainer located in Ohio. Those individuals then took a written test and a
practical test, both of which they had to pass in order to become NCCCO certified. Once an
employee became NCCCO certified, it was still up to the Respondent to make the final 40
determination as to whether that employee was “qualified” to operate the Liebherr cranes for the
Respondent. Leach was the one who made this determination, and he did so by watching the
employee operate the crane. The certification training did not actually take place on Liebherr
cranes, and the employees who completed that training still had to learn how to work the
specific controls on the Liebherr cranes. They did this by studying written materials and/or by 45
receiving instruction from an experienced individual at the facility.
The ILA apparently did not refuse to cooperate with this process as it applied to
members who were previously qualified by the Respondent to operate cranes. From 2010 to

7
Murphy’s union status was unclear. He paid union dues, but is not included on the “order of call”
lists submitted at the hearing.
JD–04–16
12
2012, a number of ILA members participated and became NCCCO certified and qualified to
operate the Liebherr cranes for the Respondent. These unit employees included Randy
Baumert, Brown, Fussell, and Newcomer. The Respondent also sent a number of non-unit
individuals for the formal crane training and testing. These included Brad Hendricks (operations
manager), Ryan “Moose” Richardson (maintenance employee), and Salhoff (maintenance5
employee).8 Not all the persons sent for the training passed the NCCCO certification test the
first time. Both Brown and Baumert required multiple attempts. The Respondent allowed
Brown, Baumert, and Newcomer to have informal training on the Liebherr cranes at the
Respondent’s facility before they became NCCCO certified. In Newcomer’s case such informal
training was permitted even before he attended the formal third-party training.10
At some point between March and May 2013, the Respondent and the ILA had a
meeting to discuss training unit members on the cranes and other mobile equipment. Present
for the Respondent were Leach, Lauri Justen (human resource director), and Christopher
Blakely (human resource manager). Present for the Respondent were Brown (president of the 15
ILA local) and Ray Sims (financial secretary of ILA local). Brown testified that at that point the
ILA was concerned because the Respondent had lost three of its crane operators and, as a
result, the Respondent was sometimes using non-unit individuals to operate the cranes. Leach
stated that financial considerations were limiting the Respondent’s willingness to provide
training and he asked if the ILA would be willing to share part of the cost of training. Brown 20
declined, and stated that under the collective bargaining agreement the Respondent had to
provide the training. The parties discussed training two or three new crane operators, four to six
end loader operators, and an unspecified number of forklift operators, but an agreement was not
reached.
25
In April or May 2013, Leach approached Brown about sending two unit employees to a
formal, third-party, training for NCCCO certification. The unit employees for whom crane
training was discussed at this point, unlike the previous group of crane trainees, had not
previously been qualified by the Respondent to operate cranes. Given the lack of crane
experience among these potential trainees, the Respondent was not offering the 5-day NCCCO 30
training that Brown and other qualified crane operators had received, but a more extensive, 2-
week, course designed for persons who had not previously operated a crane. Leach asked
Brown to pick two unit employees to receive the formal training in July. Brown refused to do so,
stating that July was too soon and that the Respondent was setting up the potential trainees for
failure by sending them for the formal training without first providing them with informal, seat 35
time, training. Brown left this conversation with the understanding that Leach had agreed to
allow the persons who would be sent to the formal training course to receive prior informal
training by unit members.
By letter to Brown dated June 7, 2013, Blakely repeated Leach’s request that the ILA 40
select two unit employees to receive crane training for NCCCO certification beginning on July
15, 2013. Brown responded, in a letter dated June 14, by stating that he “could not agree on
the July 15 date” because the trainees would be “at a great disadvantage going in to that
school” without prior informal training. He stated his understanding that the parties were going
to work on how to provide seat time training to employees in advance of those employees 45
testing for NCCCO certification and took the position that the training committee would have to
meet to do this. He stated that both himself and Fussell were prepared to provide informal
crane training to unit members.

8
As is discussed below, the collective bargaining agreement provides that the Respondent is entitled
to use non-unit individuals to operate equipment when a qualified unit member is not available to do so.
JD–04–16
13
Subsequently, in late June, Leach again spoke to Brown about sending unit members to
the crane training school and Brown proposed that the training be provided not in July, but in
September or October so that the prospective trainees would have the opportunity to receive
informal, seat-time, training prior to the formal training. Leach told Brown that the crane school
administrators preferred that the participants for the extended 2-week training have no 5
experience that might “taint” their minds. After this late June conversation, Brown reached out
to Leach, including by email, to further discuss crane training, but he received no response from
Leach. Neither Brown, nor anyone else with the ILA, provided management with the names of
unit employees who the ILA agreed to have participate in the formal training that the
Respondent was offering. The Respondent did not contact Brown about scheduling crane 10
training at a later date or state that it would permit trainees to receive informal training before
the formal NCCCO course. Blakely testified that the Respondent’s position was that it would not
permit employees to have informal seat time training on the Liebherr cranes if they were not
NCCCO certified.9
15
In early 2014, the Respondent stopped operating the Lucas cranes. The Respondent
never required employees to have NCCCO certification to operate the Lucas cranes. The last
time any employees had informal, seat time, training on the Lucas cranes was in approximately
December 2012.
20
2. End Loader: In 2008, the Respondent had an outside contractor provide end loader
training to employees at the facility. This training was provided primarily for the benefit of the
employees Leach had grandfathered in as end loader operators, but for whom he had no
training records. However, documentary evidence shows that Brown completed end loader
safety training in April 2008 even though the order-of-call lists from April 2007 and June 2008 do 25
not show that the Respondent previously recognized him as qualified to operate the end loader.
See GC Exhs. 31and 52. There has been no formal end loader training since that time. During
the period of trusteeship the process reverted to one where unit employees who were
experienced on the end loaders provided seat time training to unit employees. Fussell was
among the employees trained in that manner who the Respondent determined became qualified 30
to operate the end loaders. Leach testified that he has continued to allow inexperienced
employees to get seat time on the end loaders when there is availability, but he stated this
“didn’t work out too well” and that it was “very rare” that employees trained in this manner.
The record does not demonstrate that there were instances when the Respondent took 35
the initiative to offer employees the opportunity to have informal training on the end loaders, but
neither does it demonstrate instances when unit employees, as provided for by the collective
bargaining agreement, gave the Respondent notice that they wanted to engage in end loader
training. As noted above, during a meeting in about March to May 2013, representatives of the
ILA and management met and discussed future training, including the possibility of training 40
between four and six individuals as end loader operators. However, it is not clear from the
record whether it was the Respondent, the ILA, or both, who were responsible for the failure to
follow through with discussions about end loader training.
3. Forklift: The forklift is the type of mobile equipment that is most often used by the unit 45
employees and the one that is the easiest to become qualified to operate. The Respondent
provides employees with third-party safety and certification training for the forklift. An
employee’s forklift certification is valid for 3 years. Leach stated that the Respondent provides

9
As noted above, the Respondent permitted Baumert, Brown, and Newcomer to have seat time
training in the Liebherr cranes prior to when they obtained NCCCO certification, but the Respondent only
permitted this for crane operators who had previously been qualified and were “grandfathered in.”
JD–04–16
14
the initial training when there are enough employees that are ready for the training. In practice
the last two trainings were 3 years apart. One of these was in 2012, but it is not clear from the
record whether the other was in 2009 or in 2015.
The record shows that the Respondent has provided unit employees with minimal, on 5
the job, forklift training without those individuals being formally trained or certified. One
employee, Paul Floering, credibly testified about receiving such training in the Spring of 2011.
Floering had no relevant prior experience or certification when Leach gave him 10 minutes of
instruction on forklift operation. Then Leach left Floering to practice for about 30 minutes. After
this, and before Floering was certified, he received regular forklift assignments. Subsequently,10
Floering was formally certified. In addition, Leach asked Rizo to provide informal forklift training
to Hubbard during the trusteeship period. At the time Rizo advised Leach that Hubbard had no
forklift experience and Leach responded “just show him how to do it.”
Analysis15
Employee training is a mandatory subject of bargaining, Southern California Gas Co.,
346 NLRB 449 (2006), and therefore an employer violates Section 8(a)(5) and (1) of the Act by
making changes regarding training without giving the employees’ bargaining representative
notice and opportunity to bargain, NLRB v. Katz, supra, Whitesell Corp., supra, Ivy Steel & Wire, 20
Inc., supra, Mercy Hospital of Buffalo, supra, Associated Services for the Blind, supra.
Regarding crane training, the evidence showed that the Respondent either entirely
ceased to provide informal training in crane operation or ceased to provide it to trainees who did
not possess NCCCO certification. The Respondent attempts to defend against the allegation 25
that this change violated the Act by asserting that any such change was made prior to June 23,
2013, and that the allegation is therefore untimely because the relevant charge was not filed
until December 23, 2013 – outside the 6-month charge filing period under Section 10(b) of the
Act.10 The limitations period under Section 10(b) is an affirmative defense that the Respondent has
the burden of proving. NLRB v. Public Service Electric & Gas Co., 157 F.3d 222, 228 (3d Cir. 1998). 30
The Respondent attempts to meet this burden by pointing to evidence showing that, in 2010, it
informed the ILA that NCCCO certification was being made a prerequisite to unit employees
qualifying as crane operators for the new Liebherr cranes. That evidence, however, fails to
satisfy the Respondent’s burden regarding the cessation of training because any notice that
NCCCO certification was being made a prerequisite to becoming a qualified Liebherr crane 35
operator does not provide notice that such certification is being made a prerequisite to receiving
supervised training to become a qualified Liebherr crane operator, much less to receiving such
training on other cranes, such as the Lucas cranes, that were not covered by the agreement
with the Port. Indeed, subsequent to 2010, the Respondent permitted Brown, Baumert and
Newcomer to receive informal seat time training on the Liebherr cranes at a time when neither 40
had NCCCO certification.
In reaching the determination that the Respondent did not establish a Section 10(b)
defense regarding the change in crane training, I also considered the evidence that in the period
leading up to early June 2013 – just outside the Section 10(b) period – the Respondent45
discussed with Brown that it wished to send ILA members to formal training for NCCCO
certification. However, the record does not show that the Respondent gave the ILA notice
during those discussions that it would no longer allow informal crane training. Indeed, the
Respondent’s statements during those discussions led Brown to understand that the parties

10
Section 10(b) of the Act states that, “no complaint shall issue based on an unfair labor practice
occurring more than six months prior to the filing of the charges.”
JD–04–16
15
were going to work out how to schedule informal crane training prior to the formal training.
Brown memorialized this understanding in his June 14 letter to Blakely. I find that the earliest
that the ILA can conceivably be said to have been on notice that the company was eliminating
informal crane training either completely or for non-certified trainees was when it became clear
that the Respondent was refusing Brown’s continuing efforts to schedule informal crane training 5
following Leach’s assertion to Brown that such training would “taint” trainees. The “taint”
assertion was not made until late June, and it was several days later that Brown sent Leach an
email in which he attempted to continue the conversation regarding informal training. It would
not have been until some days or weeks after that email that Brown and the ILA could arguably
have been expected to understand the Respondent’s silence as meaning that the informal crane 10
training would no longer be allowed.
Moreover, even once the Respondent repeatedly ignored Brown’s attempts in 2013 to
continue discussing informal training on the Liebherr cranes, the ILA was not, in my view, on
notice that informal training was being eliminated for all cranes, since the Respondent has not 15
shown that it notified the ILA that the NCCCO certification requirement applied to the Lucas
cranes or that those cranes would be taken out of service in early 2014. Therefore, the
Respondent has not shown that prior to June 23, 2013, the ILA was given notice that informal
training for its cranes was being eliminated completely or for unit employees without NCCCO
certification. For these reasons I find that the Respondent’s Section 10(b) defense fails with 20
respect to the allegation that the Respondent ceased providing informal crane training.
Turning to the merits of the crane training allegation, I find that the Respondent violated
Section 8(a)(5) and (1) when it unilaterally eliminated informal crane training for unit employees
either entirely or for those who were not NCCCO certified. I note that such training was the 25
established method by which persons without prior crane experience became proficient in crane
operation before June 23, 2013. Brown, Fussell, and Newcomer all testified that they initially
became qualified crane operators by way of the informal training. Moreover, this practice was
expressly required by the collective bargaining agreement, which states that when conditions of
“seniority” and “work availability” warrant it, “a crane operator trainee will be placed in the crane 30
along with the crane operator for purposes of training.” (Emphasis Added). The evidence here
shows that, as of the middle of 2013, the Respondent and the ILA were in agreement that
conditions warranted training additional ILA unit employees as crane operators and that there
were three unit members who were in a position to begin crane training. Thus pursuant to past
practice under the collective bargaining agreement, the Respondent was required to place each 35
crane operator trainee “in the crane along with the crane operator for purposes of training.” The
Respondent ceased and refused to do this and therefore made a change to employee training –
a mandatory subject of bargaining. The Respondent never presented this change to the ILA as
one that could be bargained over and, to the contrary, dodged Brown’s efforts to continue
discussing the matter. For these reasons, I find that the Respondent violated Section 8(a)(5) 40
and (1) by ceasing informal crane training for unit employees after June 23, 2013.
As regards formal crane training, I find that the General Counsel has not shown an
unlawful unilateral change. It is the General Counsel’s burden to show the existence of an
established practice that an employer cannot change without providing the employees’ 45
representative with notice and an opportunity to bargain. National Steel & Shipbuilding, 348
NLRB 320, 323 (2006), enfd. 256 Fed. Appx. 360 (D.C. Cir. 2007). In this case, the only
evidence of formal crane training concerns training provided beginning in 2010 to a single group
of unit employees. Moreover, that group was unique in that it was comprised of individuals who
had been grandfathered in as crane operators because they were qualified by the Respondent50
before the introduction of the Liebherr cranes and the related NCCCO certification requirement.
The General Counsel did not show that, prior to June 23, 2013, unit employees who were not
JD–04–16
16
already crane operators had ever been provided with formal crane training. To the contrary, the
first time the record shows that the Respondent and the ILA discussed the possibility of sending
unit members without prior crane experience to formal crane training was in 2013. Moreover
the record, far from showing that the Respondent was not offering formal crane training to
inexperienced unit members, gives every reason to believe that the Respondent would have 5
provided unit employees with such training if the ILA had agreed to it.
With respect to the training on the end loaders and fork lifts, the General Counsel has
not shown that the Respondent deviated from an established past practice. The evidence only
shows one instance, in 2008, when the Respondent provided formal end loader training. 10
Subsequent to that time, informal end loader training occurred, but the record does demonstrate
an established past practice by which that informal training was initiated and organized or show
that the Respondent deviated from any such past practice. Indeed, Leach testified that he has
continued to offer informal end loader training. I considered the provision in the collective
bargaining agreement which states that employees can provide 48-hour notice to the 15
Respondent that they wish to engage in off hours training on equipment. However, the General
Counsel has not shown a deviation from that training process because the record does not
demonstrate that employees provided notice regarding off-hours end loader training and that the
Respondent refused them the opportunity.
20
Similarly, the evidence shows that unit employees have intermittently received training
on the forklifts both informally and formally. The General Counsel has not, however, shown that
employees or the ILA gave 48-hour notice that they wished to engage in off-hours forklift
training or that the Respondent failed to provide formal forklift training at specific junctures that
would have been warranted by some past practice. There was testimony that the last two 25
formal forklift trainings occurred about 3 years apart, and that one occurred in 2012. Even if I
assume that this showed a past practice of providing such training every 3 years, and that there
had been no training since 2012, it would not show a change since the 3-year period after the
2012 training had not passed as of the time of the consolidated complaint and was not shown to
have passed at the time of the hearing.30
For the reasons discussed above, I find that the Respondent violated Section 8(a)(5)
and (1) by ceasing informal crane training for unit employees after June 23, 2013, without giving
the ILA notice and an opportunity to bargain over the change. To the extent that the Complaint
allegation regarding training concerns formal crane training or training on end loaders and 35
forklifts, I find that the evidence fails to establish a violation of Section 8(a)(5) and (1). Those
elements of the allegation should be dismissed.
JD–04–16
17
E. SUPERVISORS AND NON-UNIT EMPLOYEES PERFORM UNIT WORK
Facts and Analysis
5
The General Counsel alleges that the Respondent violated Section 8(a)(5) and (1) since
July 1, 2013, by allowing supervisors and non-bargaining unit employees to perform bargaining
unit work. The collective bargaining agreement between the ILA and the Respondent provides
that the Respondent may use supervisors or other non-unit employees to perform bargaining
unit work when qualified ILA unit members are not available. Tr. 565, 1930-1931; J Exh. 1, 10
Sections 5.1 and 20.10. The collective bargaining agreement also permits non-unit individuals to
perform maintenance work on the cranes. J Exh. 1, Section 20.13. The testimony indicates that
such crane maintenance sometimes requires the maintenance worker to use the crane’s
controls, but not to do so for the purposes of performing unit work such as moving cargo. In
addition, Hendricks credibly testified that he sometimes moves a crane because its location is 15
impeding other work at the facility and that this is not bargaining unit work.
The General Counsel points to evidence showing that the Respondent has used
supervisors and non-unit maintenance employees to perform ILA unit work. However, the
General Counsel has not shown that in these instances the Respondent exceeded its20
contractual authority, summarized above, to use non-unit individuals to perform unit work in
certain circumstances. In 2013, the Respondent had Hendricks (a supervisor), Chad Moody (a
supervisor), and Richardson (a non-unit maintenance employee) operate cranes. In the cases
of both Hendricks and Moody, the testimony of Brown was that he raised his concerns about
this with the Respondent and the Respondent explained that the non-unit employees were 25
operating the cranes because there were no qualified bargaining unit employees available to do
so. Hendricks testified that when a non-unit employee operated a crane to perform unit work it
meant there were no crane-certified, ILA represented, employee available to do that work.
Based on the state of the record regarding this issue, I do not have a basis for finding that there
were qualified ILA unit members available to perform the crane work at the times Hendricks and 30
Moody operated the cranes.
With respect to Richardson, the record indicates that this maintenance employee had
an accident while operating a crane in 2013. However, the record provides no specifics that
would allow me to find either that a qualified ILA employee was available to operate the crane at 35
the time, or that Richardson was performing unit work rather than operating the crane controls
for purposes of performing crane maintenance as permitted by the collective bargaining
agreement.
For the reasons discussed above, I find that the General Counsel has failed to establish 40
that the Respondent violated Section 8(a)(5) and (1) by allowing supervisors and other non-unit
employees to perform unit work. That allegation should be dismissed.
F. STEP ONE GRIEVANCE PROCEDURE45
Facts
The Complaint alleges that, since about July 1, 2013, the Respondent violated Section
8(a)(5) and (1), and Section 8(a)(3) and (1) by unilaterally changing its grievance procedure. 50
The General Counsel’s brief clarifies that what is being alleged is that the Respondent
unilaterally limited the company officials to whom unit employees could present step one
JD–04–16
18
grievances. According to the General Counsel, prior to July 1, 2013, the Respondent allowed
unit employees to present their step one grievances to any available supervisor or foreman, but
that after that time the Respondent only permitted them to present their step one grievances to
Leach.
5
The collective bargaining agreement creates a four-step grievance process, step one of
which requires the employee to discuss the grievance with “his foreman” within 3 days of the
alleged violation or knowledge of the alleged violation.11 The collective bargaining agreement
does not define “foreman” and the evidence, including personnel records and testimony, does
not show that “foreman” was a part of the Respondent’s general system of job titles and 10
classifications. However, the collective bargaining agreement requires the Respondent to
provide the ILA with a “roster of supervisors” and the Respondent has, in the rosters submitted
annually since at least August 9, 2012, stated that all “contractual discussions with a foreman
must be with Mr. Leach.” Respondent’s Exhibit (R Exh.) 76 (emphasis in original).
15
Leach testified that since he came to the Respondent he has been the only official who
handles step one grievance discussions on behalf of the Respondent. The record shows that
Leach was, in fact, the Respondent’s representative for step one discussions during the period
both immediately before and immediately after the alleged July 1 change. The parties stipulated
that Leach was the Respondent’s representative at least 18 times between August 2012 and 20
January 9, 2014, and by my count all but four of those instances occurred before the July 1 date
of the alleged change requiring that such discussions be with Leach. The record definitively
identifies just one instance when someone other than Leach represented the Respondent
during a step one grievance discussion. In that instance, which occurred in October 2011, the
Respondent’s representative was Christopher Blessing, a supervisor. That instance occurred 25
well before the Respondent provided the ILA with the August 9, 2012, roster of supervisors that
named Leach as the “foreman,” and more than 20 months before the alleged change regarding
step one grievance procedures.
Two of the General Counsel’s witnesses asserted that they held step one grievance 30
discussions with Hendricks, but Hendricks denied that he ever conducted such discussions and
I found his denial credible. Hendricks acknowledged that ILA members sometimes approached
him about a grievance, but I credit Hendricks’ testimony that, rather than engage in step one
discussions at that point, he would simply acknowledge the individual’s request for such a
discussion and communicate that request to Leach. One of the two witnesses who claimed to 35
have conducted step one meetings with Hendricks was Mark Lockett – an ILA steward at the
facility from about August 2012 to January 2013. However, Lockett did not identify a single
specific instance when he had actual step one discussions with Hendricks. To the extent that he
provided any details, those details arguably support Hendricks’ account. Specifically, Lockett
stated that he would bring step one matters to Hendricks and that Hendricks would respond 40
“duly noted” and drive away. Lockett may have been interpreted such an exchange as a step
one grievance discussion, but it is, in fact, more supportive of Hendricks’ testimony that that
while he could not conduct step one discussions he would acknowledge the receipt of employee

11
The collective bargaining agreement section on step one grievances states as follows:
When a grievance arises, the employees will continue to work and such grievance shall be
processed in the following manner.
STEP ONE: An employee who believes he has a grievance shall discuss the grievance with
his foreman within three (3) calendar days of its occurrence or knowledge of its occurrence.
The employee shall have the dock steward present at the time the grievance is discussed
with the foreman. In the even the matter cannot be satisfactorily adjusted within forty-eight
(48) hours after the discussion with the foreman, it goes to [STEP TWO.]
JD–04–16
19
requests for such discussions and communicate them to Leach. None of the step one meeting
minutes submitted at the hearing identified Hendricks as the Respondent’s representative,
although there were notes of 18 such meetings that identified Leach as serving in that capacity.
Rizo was another witness for the General Counsel on this subject. Rizo was an ILA5
steward for approximately 3 ½ years ending in 2012 or 2013. He testified that he would have
step one grievances discussions with whoever “was in charge” at the time. However, he also
testified that if Leach “was available” that is who he would contact about the step one grievance.
His assertion that he also had step one grievance discussions with persons other than Leach
was undercut to some extent by his affidavit, in which he stated: “Before a written grievance is 10
filed, I call Terry Leach to discuss it with him. I usually can’t get a hold of him, so I leave a
message.”
As one would expect, there are times when unit members wish to initiate the grievance
procedure but Leach is not immediately available at the facility for a step one discussion. 15
However, the Respondent has never barred a step one grievance because the deadline for
raising it passed while Leach was unavailable.
Analysis
20
The General Counsel correctly states that an employer violates Section 8(a)(5) and (1)
of the Act by unilaterally changing grievance procedures. Public Service Company of New
Mexico, 360 NLRB No. 45 (2014); Bethlehem Steel Company, 136 NLRB 1500, 1502 (1962),
affd. in relevant part 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964). Under the
facts present here, however, I find that the Respondent did not make a change in grievance 25
procedures, but rather exercised its right to choose its representative for purposes of step one
grievance discussions. As the Board stated in Fitzsimons Mfg. Co., “It is well established that
each party to a collective-bargaining agreement has the right to select its representative for
bargaining and negotiations and the duty to deal with the chosen representative of the other
party.” 251 NLRB 375, 379 (1980), enfd. sub nom. Auto Workers v. NLRB, 670 F.2d 663 (6th30
Cir. 1982). A party’s right to select its own representative encompasses the right to select its
representative for grievance meetings. Pan American Grain Co., 343 NLRB 205, 206 and 211
(2004),12 Long Island Jewish Medical Center, 296 NLRB 51, 71 (1989). Under the facts present
here, I find that the Respondent was not establishing or changing grievance procedures, but
simply exercising its right to choose its own representative.35
The result might be different if the Respondent’s designation of Leach as its
representative for purposes of step one grievance discussions was contrary to limits established
by the collective bargaining agreement, or by an established past practice, or was being used
by the Respondent to avoid processing grievances. However, none of that is the case here.
The collective bargaining agreement provides that step one discussions are to be attended by40
“the foreman” and the ILA “dock steward.” “Foreman” is not defined by the collective bargaining
agreement and was not shown to be part of the Respondent’s established system of titles or
classifications of employees. The General Counsel and the Charging Party did not point to any
company documentation giving anyone other than Leach the title of foreman, nor did they show
that anything about Leach’s duties was incompatible with the Respondent’s designation of him 45
as its sole foreman. As noted above, there was no evidence that any employee’s grievance had

12
In Pan American Grain Co., the Board applied Fitzsimons and stated that a party had the right to
choose its own representative for, inter alia, grievance meetings, but applied an exception to that rule
because the union’s chosen representative was implicated in death threats against the company’s
president.
JD–04–16
20
been time-barred as a result of Leach’s unavailability. Under such circumstances, the ILA has
no more right to dictate who the Respondent selects as its foreman for step one grievance
discussions than the Respondent has to dictate who the ILA selects as its dock steward for such
discussions.
5
The record also fails to show that designating Leach as the foreman for purposes of step
one grievance discussions was a change from an established prior practice. The record
identifies the participants in a number of step one discussions both before and after the alleged
change. Leach was the Respondent’s representative in eighteen of those instances, which was
almost all of them. There was one incident, 20 months prior to the alleged unilateral change, in 10
which Blessing was shown to have served as the Respondent’s representative at a step one
grievance discussion. That aberration, the surrounding circumstances of which were not
explored at the hearing, does not establish a past practice under which the ILA gets to decide
which company official will serve as the Respondent’s representative.13
15
The Complaint alleges that the purported change in grievance procedures not only
violated Section 8(a)(5) and (1), but also violated Section 8(a)(3) and (1) because it was
inherently destructive of Section 7 rights. Since I find that the General Counsel failed to show
that the Respondent made a change in grievance procedures, this allegation fails as well.
20
For the reasons discussed above, the evidence fails to show that the Respondent
violated Section 8(a)(5) and (1) or Section 8(a)(3) and (1) by unilaterally changing its grievance
procedure. Those allegations must be dismissed.
G. ALLEGED THREAT AND PAY DISPUTE RELATED TO HUBBARD’S WORK INJURY25
Facts
Hubbard, an individual charging party and ILA unit employee, sustained a workplace
injury on August 11, 2013. The Complaint alleges that the Respondent should have paid 30
Hubbard for the portion of his shift that he was unable to work because of this injury, but that the
Respondent refused to do so in violation of Section 8(a)(5) and (1), Section 8(a)(4) and (1), and
Section 8(a)(3) and (1) of the Act. The Complaint further alleges that on August 12, 2013,
Blakely threatened a unit employee (Hubbard) in violation of Section 8(a)(1) by stating that,
because of the unfair labor practices charges filed by the employee and the ILA, Blakely was 35
too busy to provide information to the employee.
Hubbard has been a vice-president of the ILA local and a steward since approximately
the middle of 2012 and an employee at the facility since April 2006. As steward he is
responsible for policing the collective bargaining agreement and investigating calls from ILA unit 40
members about potential contract violations at the facility. Hubbard was actively involved with
the ILA efforts, discussed above, to resist the Respondent’s unlawful changes to aluminum
handling practices. On June 1, 2013, Hubbard challenged the Respondent’s actions in this
regard and disputed Leach’s assertion that the change was authorized by a prior Board
decision. This activity led to a brief work stoppage by Hubbard and the other ILA unit members 45
present. On August 5, 2013, Hubbard again challenged Leach about the unlawful change and,
once again, a work stoppage by Hubbard and the ILA members ensued. The record also

13
Given that the General Counsel has not proven its allegation that the Respondent made a
unilateral change to the grievance process, I need not reach the Respondent’s defense that the allegation
is time-barred.
JD–04–16
21
shows that on June 27, 2013, Hubbard filed an unfair labor practices charge against the
Respondent and that this charge led to an investigation.
Hubbard’s work-related injury occurred during a shift that began at 6:00 pm on August
10, 2013, and continued overnight and was extended through much of August 11, 2013. At the 5
beginning of this shift, Hubbard and the other ILA unit members on the crew were made aware
that the work would likely continue past 6:00 am, when the shift would normally be expected to
end. The unit employees who accepted the assignment agreed to continue their duties until the
work was completed. The undisputed evidence was that the ILA crew that began this shift
worked for almost 24 hours straight to complete the work. Hubbard’s assignment on this 10
occasion required him to be on a vessel. At about 2:45 am on August 11, Hubbard tripped and
fell on the deck of the vessel after the lights illuminating the area unexpectedly went out.
Hubbard was aware that he had injured his legs. The Respondent’s procedures require that
employees who have a work-related injury inform the Respondent and initiate an incident report
before leaving the facility.14 Hubbard did this, leaving the ship and informing Eddie Tierny, who 15
was acting in a supervisory capacity, of his injury. Both Hubbard and Brown asked Tierny to
provide Hubbard with the forms necessary to make his report regarding the incident, but Tierny
indicated that Hubbard would have to wait until Hendricks arrived at the facility to obtain the
forms. Hubbard told Tierny that his legs were hurting, bleeding and swelling up, and that he
wanted to go to the hospital. However, since Tierny could not, or would not, provide the incident 20
report forms, Hubbard remained at the facility and awaited Hendricks’ arrival. At one point after
the injury occurred and before Hendricks arrived, Tierny suggested that Hubbard resume his
work in a seated position, but Hubbard declined, explaining that he was concerned that his
injury would make it impossible for him to disembark from the vessel.
25
At about 5:45 am on August 11, Hendricks arrived at the facility and Hubbard obtained
the necessary incident report forms from him. Hendricks photographed Hubbard’s injured lower
legs and those photographs show cuts on Hubbard’s legs and what is likely some swelling.
Hubbard completed the report, in which he noted injuries to both shins and one knee. Then
Hubbard told Hendricks that he was going to the hospital. Hendricks stated that a hospital visit 30
was not necessary and that Hubbard should, instead, go home and take an over-the-counter
pain reliever. Hubbard left and began his commute home. During the commute, Hubbard
spoke to Brown by phone and Brown urged Hubbard to visit a hospital emergency room. Brown
told Hubbard that if he did not do so the Respondent might refuse to pay him for the hours that
the crew continued working after Hubbard left the facility due to his injury. Management had 35
previously notified employees that if they were injured at work they should go to one of two
hospitals that were close to the dock, but Hubbard was already at, or near, his home when
Brown convinced him to visit a hospital. Hubbard stopped at home to clean his legs and then
went to a hospital in the vicinity of his home, rather than drive back to one of the hospitals that
were located near the Respondent’s facility.15 At the hospital, the staff took x-rays of Hubbard’s 40

14
Work rule 3, which is an attachment to the collective bargaining agreement, provides in relevant
part:
All accidents involving personal injury must be reported to the Supervisor immediately by the
employee(s) causing or involved in the accident. An accident/injury report shall be prepared
by the employee(s) ASAP or at least prior to leaving the shift that day.
J Exh. 1.
15
The Respondent’s brief makes a point of noting that the hospital that Hubbard went to did not
administer a drug test, something that either of the hospitals near the dock would have done. To the
extent that counsel is suggesting that Hubbard intentionally avoided the hospitals near the dock in order
evade a drug test, I find that such a suggestion is not only irrelevant, but also unsupported by the record.
The Respondent presented no testimony whatsoever that Hubbard was impaired at the time of the
JD–04–16
22
legs and told him to follow up with his own physician. After he left the hospital, Hubbard’s back
began to hurt, and he also discovered a finger injury for which he ultimately underwent surgery.
Hubbard contacted his physician’s office on the morning of August 12 to arrange an
appointment and that office encouraged him to obtain a workers’ compensation claim number.5
Hubbard called Justen (human resource director) to request a workers’ compensation claim
number. Justen told him that she was “working on trying to get” a workers’ compensation
number for him and that he should call again in an hour. Hubbard then called Blakely about the
matter by phone. As is discussed below, what Blakely said during that conversation is in
dispute. It is not in dispute, however, that on August 12 Blakely and Justen were already 10
gathering information and making submissions to move forward with Hubbard’s workers’
compensation claim. At 1:44 pm that day – approximately 4 or 5 hours after Hubbard called –
Blakely forwarded a draft of the required report regarding Hubbard’s injury to Justen. By 4:29
pm, Justen informed Hubbard by email that the incident had been entered with the workers’
compensation agency and that the Respondent was awaiting a claim number. Justen provided 15
the workers compensation number to Hubbard by email the next day, August 13, at 8:33 am.
Regarding the factual dispute over the conversation that took place when Hubbard
called Blakely at approximately 9:00 or 10:00 am on August 12, the evidence was as follows. In
Hubbard’s account, after Justen told him that the Respondent was already working on obtaining 20
a workers’ compensation number for him, he called Blakely and stated that he needed a
workers’ compensation number so that he could see a physician. According to Hubbard,
Blakely responded that he had not had a chance to work on the incident report yet, and
explained: “Well, Prentis [Hubbard], you know all these charges and stuff that – you done filed
grievances and charges. You done filed, I guess . . . with the NLRB against us. I just been too 25
busy working on those.” Blakely contradicted Hubbard’s account and specifically denied stating
that he was too busy handling charges and grievances to work on Hubbard’s workers’
compensation matter. Blakely testified that he was actually working on the report about
Hubbard’s injury at the time of the call and that he told Hubbard that he was aware of the
incident and had notified Justen. 30
After considering the evidence regarding the August 12 conversation and the demeanor
of the witnesses, I credit Hubbard’s account over Blakely’s. Hubbard was a cooperative witness
and on both direct and cross examination he answered questions forthrightly and without biased
embellishment. I found him a particularly credible witness. There was no testimony or other35
evidence that suggested to me that he was the type of individual who would invent a story whole
cloth, as the Respondent would have me believe he did regarding Blakely’s alleged threat, and
his demeanor on the stand was not consistent with such dishonesty. I am not persuaded by the
Respondent’s argument that I should not credit Hubbard because he did not mention the threat
in his steward’s notes for August 13. Those notes do not contain any mention at all of the call 40
between Hubbard and Blakely, even though both Hubbard and Blakely testified that the call took
place. This leads me to believe that the threat was not mentioned in the notes for no other
reason than that the call was not the subject of the entry.
Blakely, based on his demeanor, generally appeared to be an honest witness. However, 45
he was also a witness who demonstrated a tendency, consistent with his alleged statements to
Hubbard, to bristle at the demands of dealing with ILA-related controversy. One such instance

accident, or that the Respondent had ever found him to be, or even suspected him of being, impaired by
drugs or other substances while at work. Hubbard’s choice of hospitals is fully explained by his credible
testimony that, when he was leaving the dock, Hendricks discouraged him from going to a hospital, and
that he only decided to go once Brown advised him of the importance of having a medical examination.
JD–04–16
23
concerned his testimony about his compliance with the General Counsel’s subpoena duces
tecum. During that testimony it became apparent that, although the Respondent’s counsel had
represented that Blakely had fully complied, the truth was that Blakely had taken it upon himself
to respond only to the subpoena items he thought he could reasonably address given time
constraints and his other work. Tr. 473 ff. In response to the revelation regarding the deficiency 5
of his response, Blakely’s demeanor was more irritated than contrite as he recounted the other
work he had to attend to and complained about the hours he had been forced to spend
responding to as much of the subpoena as he had answered. In another instance, Blakely
testified that he had left in the middle of a training meeting with ILA representatives because he
felt that they were wasting his time. Tr. 1595. Hubbard’s very credible testimony that, on 10
August 12, Blakely had responded to his injury-related inquiry by stating that he had too much
else to do given the demands placed on him by ILA-related controversies is lent further
credence by these aspects of Blakely’s testimony and demeanor.
The collective bargaining agreement provides in part: “An employee who is injured on 15
the job shall be paid for the hours he would have worked on that day had he not been injured.”
J Exh. 1, Section 22.5. Hubbard and Brown testified that when a unit employee was injured at
work and left to go to the hospital they were paid for the hours they would have continued
working if not for the injury. The Respondent did not present any evidence showing that the
practice was something other than what is indicated by the collective bargaining agreement and 20
testified to by Hubbard and Brown. Nevertheless, although the crew that Hubbard began work
with on the day of his injury continued to work and were paid for almost 24 hours, the
Respondent only paid Hubbard for the 12 hours prior to when he left the facility after suffering
an injury. Blakely, as the Respondent’s human resources manager, had responsibility for
submitting the company’s payroll information.25
Analysis
1. Alleged Threat: Section 8(a)(1) of the Act makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the exercise of” their rights to 30
engage in protected union and concerted activity. In deciding whether an employer has made a
threat in violation of this prohibition, the Board applies the objective standard of whether the
remark would reasonably tend to interfere with the free exercise of employee rights, and does
not look at the motivation behind the remark, or rely on the success or failure of such coercion.
Divi Carina Bay Resort, 356 NLRB No. 60, slip op. at 5 (2010), enfd. 451 Fed. Appx. 143 (3d 35
Cir. 2011); Joy Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307
(7th Cir. 1998); Miami Systems Corp., 320 NLRB 71, 71 fn. 4 (1995), affd. in relevant part 111
F.3d 1284 (6th Cir. 1997). When applying this standard, the Board considers the totality of the
relevant circumstances. Mediplex of Danbury, 314 NLRB 470, 471 (1994).
40
The General Counsel alleges that Blakely made an unlawful threat on August 12, 2013,
when he told Hubbard that he had not been able to work on Hubbard’s worker’s compensation
claim because he was too busy handling grievances and unfair labor practice charges filed by
Hubbard. The Respondent does not defend this allegation by claiming that such a statement
was not unlawful under the circumstances present here, but rather argues that the statement 45
was not made. As discussed above, after considering the record, I credit Hubbard’s testimony
that Blakely made the alleged threat.
In light of the totality of the relevant circumstances present here, I conclude that
Blakely’s remark was unlawfully coercive. He suggested that, because Hubbard had engaged 50
in union activity and participated in the Board’s processes, the Respondent was delaying
Hubbard’s unrelated workers’ compensation claim. In reaching my determination on this issue, I
JD–04–16
24
considered circumstances that weigh against finding that an employee would reasonably be
coerced by Blakely’s remark. In particular, I considered that at the time of Hubbard’s and
Blakely’s conversation, Justen had already told Hubbard that work had begun on his claim, that
within just a few hours thereafter the Respondent informed Hubbard that it had submitted his
worker’s compensation paperwork, and that by early the next day, the Respondent provided 5
Hubbard with the claim number he was seeking. The General Counsel did not show that this
facially swift processing represented a delay that Hubbard would reasonably attribute to his
protected activity. That being said, I am persuaded to find unlawful coercion because Blakely
went beyond simply stating that there would be some delay in the Respondent’s completion of
the workers’ compensation paperwork, and specifically told Hubbard that the delay was the 10
result of Hubbard’s protected activity. Moreover, Blakely himself testified that he was not, in
fact, busy with ILA grievances or charges at the time, meaning that any delay he threatened
based on union activities would be a product of his own volition rather than circumstances
beyond his control. Even if, as it appears, the Respondent did not actually delay the processing
of Hubbard’s worker’s compensation paperwork, Blakely’s statement was a warning shot that 15
put Hubbard on notice that union activity and participation in the Board’s processes could cause
the Respondent to delay action on unrelated matters important to Hubbard.
For the reasons discussed above, I conclude that, on August 12, 2013, Blakely
unlawfully threatened Hubbard in violation of Section 8(a)(1) by telling him that he was too busy 20
with Hubbard’s union charges and grievances to work on the paperwork relating to Hubbard’s
workers’ compensation claim.
2. Denial of Pay: The General Counsel claims that the Respondent’s action in denying
Hubbard pay for the hours he would have worked on August 11, 2015, if he had not left due to a 25
work-related injury was discriminatory in violation of Section 8(a)(3) and (1) and Section 8(a)(4)
and (1), and was also a unilateral change in violation of Section 8(a)(5) and (1).
Turning to the discrimination claims first, under the Board's Wright Line decision, in
cases alleging a violation of Section 8(a)(3) and (1), where motivation is at issue, the General 30
Counsel bears the initial burden of showing that the Respondent's decision to take adverse
action against an employee was motivated, at least in part, by antiunion considerations. 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. (1982), approved
in NLRB v. Transportation Corp., 462 U.S. 393 (1983). The General Counsel may meet this
burden by showing that: (1) the employee engaged in union or other protected activity, (2) the 35
employer knew of such activity, and (3) the employer harbored animosity towards the Union or
other protected activity. Camaco Lorain Mfg. Plant, 356 NLRB No. 143, slip op. at 3-4 (2011);
ADB Utility Contractors, 353 NLRB 166, 166-167 (2008), enf. denied on other grounds, 383
Fed. Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270, 1274-1275 (2007);
Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 40
NLRB 355, 356 (1999). Animus may be inferred from the record as a whole, including timing
and disparate treatment. Brink's, Inc., 360 NLRB No. 136, slip op. at 1 fn. 3 (2014); Camaco
Lorain Mfg. Plant, supra. If the General Counsel establishes discriminatory motive, the burden
shifts to the employer to demonstrate that it would have taken the same action absent the
protected conduct. Camaco Lorrain, supra; ADB Utility, supra; Intermet Stevensville, supra; 45
Senior Citizens, supra. The Board also applies this Wright Line analysis to allegations that an
employer violated Section 8(a)(4) and (1) by discriminating against “an employee because he
has filed charges or given testimony” in a Board proceeding. Verizon, 350 NLRB 542, 546-547
(2007); American Gardens Mgmt. Co., 338 NLRB 644, 644-645 (2001); Gary Enterprises, 300
NLRB 1111, 1113 (1990), enfd. mem. 958 F.2d 368 (4th Cir. 1992).50
JD–04–16
25
The General Counsel has met its initial burden of showing discrimination under both
Section 8(a)(3) and (1) and 8(a)(4) and (1) of the Act. The first element under Section 8(a)(3) is
established by the evidence that Hubbard was very active in union matters at the facility --
serving as vice-president of the ILA local and as dock steward, and personally challenging
management over unilateral changes to the way aluminum was handled at the facility. With 5
respect to Section 8(a)(4), the evidence showed that Hubbard had recently invoked the Board’s
processes by filing an unfair labor practices charge against the Respondent. These are all
activities about which the Respondent had knowledge. The General Counsel has made the
required showing of animus in that, as found above, on August 12, just the day after the injury
that gives rise to the pay controversy, Blakely unlawfully threatened Hubbard because he had 10
engaged in union activity and availed himself of the Board’s processes.
Since the General Counsel has made the required initial showings under Wright Line,
the burden shifts to the Respondent to show that it would have denied Hubbard pay for the
hours after he left work because of a work-related injury even absent Hubbard’s protected 15
activity. The Respondent has not met that responsive burden. Neither Blakely, nor any other
official involved with denying Hubbard the disputed pay, testified to a lawful reason that, in fact,
caused the Respondent to take that action. The nondiscriminatory reason forwarded in the
Respondent’s brief – that Hubbard was not paid for the disputed hours because his work-related
injury was not the real reason he left work – appears to be the invention of counsel. Given the 20
lack of any credible testimony or documentary evidence that the nondiscriminatory reason
forwarded by counsel was the actual reason for the denial of pay, the Respondent has failed to
meet its rebuttal burden. See Bruce Packing Co., 357 NLRB No. 93, slip op. at 3-4 (2011),
enfd. in relevant part 795 F.3d 18 (D.C. Cir. 2015) (employer cannot meet its burden merely by
showing that it had a legitimate reason for its action; rather, it must demonstrate that it would 25
have taken the same action in the absence of the protected conduct); ADB Utility Contractors,
supra (an employer fails to meet its burden of showing that it would have taken the same action
absent the discrimination, when the evidence establishes that the reason forwarded was not in
fact relied upon); Monroe Manufacturing, 323 NLRB 24, 27 (1997) (a employer does not meet
its responsive Wright Line burden by showing the existence of a valid reason that could justify 30
the challenged action, but rather must show that such valid reason would have resulted in the
same action even in the absence of the employee’s protected activities); Structural Composites,
304 NLRB 729, 729-30 (1991) (not enough for employer to show that it could have taken the
action it did for the reasons given, rather it must show that it would have taken the action for the
reasons given). Not only did none of the Respondent’s witnesses testify that the 35
nondiscriminatory reason asserted in the brief submitted by counsel was actually relied on in
denying Hubbard pay, but none of them even expressed agreement with counsel’s related
insinuations that Hubbard was faking his injury.
I find that the Respondent discriminated against Hubbard in violation of Section 8(a)(3) 40
and (1) and Section 8(a)(4) and (1), when it denied him pay for the hours he would have worked
on August 11, 2013, if he had not left work due to a work-related injury.
The Respondent’s denial of pay to Hubbard also violated Section 8(a)(5) and (1)
because that denial contravened past practice and the collective bargaining agreement. The 45
record shows that the Respondent pays ILA-represented employees who are injured on the job
for the hours they would have worked on that day if not for the injury. The credible evidence
showed that Hubbard would have continued working for an additional 11 to 12 hours on August
11, if he had not been injured, but that the Respondent denied him the pay for those hours even
though he was entitled to it under established practice and the collective bargaining agreement.50
JD–04–16
26
The Respondent violated Section 8(a)(5) and (1) when it denied Hubbard pay that he
was entitled to under past practice and the collective bargaining agreement for the hours he
would have worked on August 11, 2013, if not for the injury.
H. DISCIPLINE AND REFUSAL TO HIRE VICTORIAN AND WOODLEY5
Facts
Fred Victorian Jr. and Rodney Woodley appeared for an assignment on September 17,
2013, without the required safety glasses and the Respondent refused to hire them. Then the 10
Respondent issued a written notice to each employee stating that he was receiving a verbal
warning for appearing without the safety glasses. The General Counsel alleges that the
Respondent took these actions because of Victorian’s and Woodley’s union and/or protected
concerted activities in violation of Section 8(a)(3) and (1) of the Act.
15
The record shows that the Respondent had a legitimate concern with injuries to
employees’ eyes and had notified employees of the importance of wearing safety glasses prior
to the alleged discrimination against Victorian and Woodley in 2013. The annual injury report
that the Respondent is required to submit to the Occupational Safety and Health Administration
(OSHA), and which the Respondent filed on January 14, 2013, shows that were three reportable 20
injuries in 2012 and that every one of those was an eye injury involving a foreign body entering
the eye. During the pre-season training that the Respondent conducted for employees and
supervisors on March 15, 2013 – and which was attended by both Victorian and Woodley – the
Respondent discussed this record of eye injuries and the necessity of avoiding them by wearing
the required safety glasses. Since at least November 18, 2010, the Respondent’s safety 25
handbook has required employees “to wear eye protection in operational areas where the
potential for eye injury exists,” and stated that failure to abide by this, and other safety
equipment requirements, “will result in disciplinary action.” J Exh. 3, Page 61 (Personal
Protective Equipment #1800). Brown, Lockett, Rizo, Woodley – all witnesses for the General
Counsel – testified that there were past instances in which employees did not have necessary 30
safety glasses, but were permitted to obtain them from a manager, supervisor, or a co-worker,
without being denied work or subjected to discipline. However, these witnesses did not identify
the specific circumstances or dates of these occurrences – and in particular did not show that
any of these prior incidents took place after the OSHA report filed in January 2013 or the
training in March 15, 2013. 35
Victorian and Woodley were among the group of ILA unit employees who participated in
a work stoppage on June 1, 2013, to protest a unilateral change in the way the Respondent was
moving aluminum at the facility. On that occasion, the discussion between Victorian and Leach
became heated, and both raised their voices. Leach told Victorian, “I’m about this far off your 40
ass,”16 and made a gesture holding his thumb and forefinger about an inch apart. Victorian also

16
Hubbard testified that Leach made this statement, and the thumb and forefinger gesture, on June
1, and Leach denied it. I credit Hubbard, who, as discussed above, I found a particularly credible witness
and more credible on disputed matters than Leach. See, supra, footnote 3. However, I do not find a
basis for crediting the statement, in Victorian’s affidavit (GC Exh. 2), that Leach reprised the thumb and
forefinger gesture when he denied Victorian and Woodley an assignment 3 ½ months later on September
17. At the time of the hearing, Victorian was deceased and, consistent with Board precedent, I admitted
his affidavit into evidence, but carefully scrutinized the affidavit and other factors before deciding what
weight to give to the assertions in it. Weco Cleaning Specialists, 308 NLRB 310, 311 fn.7 (1992); Ann’s
Laundry, 276 NLRB 269, 270 n. 3 (1985). In the case of the September 17 incident, Leach testified that
he had not made the alleged gesture and the contrary claim in Victorian’s affidavit was not corroborated
JD–04–16
27
filed a number of grievances. One such grievance, filed on October 15, 2012, complained of the
Respondent’s failure to move Victorian from the regular list to the skilled list. In another, filed on
June 5, 2013, Victorian grieved more generally over the Respondent’s failure to add employees
to the skilled list. On August 13, 2013, Victorian filed an unfair labor practices charge alleging
that the Respondent had discriminatorily refused to place him on the skilled list.5
As noted above, the allegation regarding discrimination against Victorian and Woodley
arises over work on September 17, 2013. On that day, Victorian and Woodley both got calls
from an ILA dispatcher to come to the facility to shift the lines that secured a vessel. They were
given significantly less than the usual amount of time to appear for this work, but the record 10
does not make clear whether the short notice was attributable to the dispatcher, the
Respondent, the unavoidable uncertainties of the work, or some other factor. At any rate,
Victorian and Woodley hurried to the facility and, when they presented themselves at the
location where the lines were to be moved, neither had the required safety glasses on their
person. It is not disputed that safety glasses were required for the type of work they had been 15
told they would be performing. The two employees had a discussion with Leach regarding this,
and both Victorian and Woodley indicated to Leach that they could get safety glasses from the
break room or a car – something that would take about 5 minutes. Either at that time, or when
they returned a few minutes later with safety glasses, Leach told Victorian and Woodley that it
was “too late” and that their services would not be needed that day. Both Victorian and 20
Woodley left the facility.17
On September 18, 2013, Leach issued discipline to Woodley for violating the
Respondent’s safety policy number 1800, which includes the language requiring employees to
have safety glasses. Although provided to Woodley in written form, that document 25
characterizes the discipline as a “verbal warning.” The document states that any additional
incidents regarding the safety policy and the safety glasses “could result in further disciplinary
action up to and including suspension, and or termination.” Victorian also received a
disciplinary warning based on the incident. There was no evidence that the Respondent had
ever disciplined any other employees for presenting themselves for work without required safety 30
glasses. By the same token, the evidence does not establish that any employees had
appeared for work without required safety glasses after the submission of the injury report to
OSHA in January 2013, or after the March 2013 meeting at which the Respondent discussed
that report and the importance of avoiding eye injuries.
35

by other testimony or documentary evidence. In particular, Woodley, who was the General Counsel’s
only live witness regarding the September 17 encounter between Leach and Victorian, did not testify that
Leach made the thumb and forefinger gesture at that time. Although I found Leach a less that fully
credible witness, I do not find a basis here for finding Victorian’s affidavit more reliable than Leach’s
denial on the question of whether Leach made the thumb and forefinger gesture on September 17.
17
According to Leach, other employees had already begun shifting the lines, but according to
Woodley the line shifting work was not yet underway when he arrived. I do not find a basis in the
testimony, the demeanor of the witnesses, or the record as a whole, for crediting one witness over the
other regarding the question of whether the lines were already being shifted.
JD–04–16
28
Analysis
I find that the General Counsel has met its initial Wright Line burden with respect to
discrimination against Victorian. The evidence shows that Victorian was particularly active in 5
union matters, having filed multiple grievances in recent years and then, just a month before the
alleged discrimination, an unfair labor practices charge regarding the Respondent’s refusal to
place him on the skilled list. In addition, as discussed above, on June 1, 2013, Victorian not
only took part in a work stoppage to protest an unlawful change to the way the Respondent was
handling aluminum at the facility, but directly confronted Leach about the violation. These were 10
all activities of which Leach – who made the decision to refuse work to Victorian and to issue
discipline – was aware. The record also shows that Leach bore animus towards Victorian’s
activities. When Victorian complained to Leach about an unfair labor practice on June 1, Leach
raised his voice towards Victorian and warned “I’m about this far off your ass,” while making a
gesture with his thumb and index finger.15
Since the General Counsel has made the required initial showing, the burden shifts to
the Respondent under Wright Line to show that it would have refused to allow Victorian to work
on September 17, and issued discipline to him, even in the absence of the protected activity. I
find that the Respondent has provided sufficient evidence to meet its burden by showing that 20
Victorian presented himself for work that day in an area where safety glasses were required, but
that he did not have the safety glasses with him. The evidence shows that employees’ failure to
wear safety glasses had become a subject of concern to the Respondent. Every one of the
injuries that the Respondent reported to OSHA in the most recent annual report was an injury
involving an eye and a foreign object. Not surprisingly, during the most recent pre-season 25
training prior to September 17, 2013, the Respondent discussed that report and emphasized the
necessity of employees wearing safety glasses while doing work that required eye protection.
The evidence did not show that, since that meeting, any other employee had appeared for work
without the required safety glasses, but been treated more leniently than Victorian. Indeed
Woodley, who the General Counsel concedes was not particularly involved in union activity, 30
received exactly the same treatment as Victorian for exactly the same safety violation. Under
the circumstances present here, I find that the Respondent has met its rebuttal burden by
showing that, more likely than not, Leach would have denied Victorian work and issued the
warning to him even if not for his protected union activities.
35
The General Counsel states that Woodley had engaged in only “minimal union activity,”
Brief of General Counsel at Page 19, and I agree. The activity that was shown – participating,
along with the other ILA unit members in a brief work stoppage called by Brown and Hubbard –
is insufficient standing alone and under the circumstances present here to provide a basis for
believing he would be a target of the Respondent’s anti-union animus. Unlike in Victorians’ 40
case, there was no evidence that Leach had expressed any animus towards Woodley or his
activity, or that Woodley had directly challenged Leach or filed grievances and unfair labor
practices charges. The General Counsel argues that I should find that it has met its initial
Wright Line burden with respect to Woodley on the theory that he was an innocent bystander
injured by the Respondent’s discrimination against its true target, Victorian. Brief of the General 45
Counsel at Page 19, citing Professional Eye Care, 289 NLRB 1376 (1988), Hunter Douglas Inc.,
277 NLRB 1179 (1985), and Jack August Enterprises, 232 NLRB 881 (1977). This argument,
however, depends on the assertion that Leach’s actions with respect to Victorian over the safety
glasses issue were themselves discriminatory. For the reasons discussed above, I find that
unlawful discrimination was not shown with respect to Victorian, and therefore the General 50
Counsel’s argument that Woodley was an “innocent bystander” injured by unlawful
discrimination against Victorian fails.
JD–04–16
29
For the reasons discussed above, the claims that Victorian and Woodley were
discriminated against in violation of Section 8(a)(3) and (1) when they were denied work on
September 17, 2013, and subsequently issued disciplinary warnings, should be dismissed.
5
I. ALLEGATIONS REGARDING TREATMENT OF RUSSELL
The General Counsel alleges that the Respondent: discriminated in violation of Section
8(a)(3) and (1), and also interfered with the exercise of Section 7 rights in violation of Section
8(a)(1), since late October or early November 2013, by restricting Russell’s access to certain 10
areas of the facility; discriminated in violation of Section 8(a)(3) and (1) by issuing a written
reprimand to Russell on about January 3, 2014; and violated Section 8(a)(1) by threatening to
terminate Russell on about January 3, 2014. Russell began working at the facility in 2004.
While he was never a permanent steward, since November 2013 he has served as a fill-in
steward at times when a permanent steward was not present. Paul Floering and Sims also 15
served as fill-in stewards.
1. Steward’s Ability to Move Around the Facility to Police the Contract: As is discussed
more fully below, the record shows instances when Russell was a fill-in steward and the
Respondent confronted him about being away from his assigned work area. An employee 20
designated as the steward on a shift has a work assignment, just like any other unit employee,
in addition to the responsibilities of steward. The collective bargaining agreement provides,
however, that “the steward shall be allowed a reasonable amount of time to investigate alleged
contract violations, process grievances and attend arbitration hearings without loss of pay.” J
Exh. 1, Section 22.3. At the same time, the collective bargaining agreement includes work rules 25
that place restrictions on the unit employees’ freedom to interrupt their work. Those work rules
state: (1) “During temporary work interruptions occurring during work periods, employees must
remain in the vicinity of the job or, with supervisory approval, at a designated area within the
Terminal.”; (2) “If an employee[ ] must leave the job area for relief purposes, such employee
shall notify supervisor and not be absent from the job longer than 10 minutes, including travel 30
time.”; and (3) “Employees that leave work early or take unauthorized breaks will be docked
time.” In addition, Section 20.6 of the collective bargaining agreement provides that “The
Company reserves the right to deny future employment to any employee who leaves his job
unattended.” The collective bargaining agreement also states that in certain circumstances, not
shown to pertain here, the steward will be assigned as an “extra man” in addition to “minimum 35
gang positions.” See J Exh. 1, Sections 22.3(1.)(B.) and 22.3(2.). There was no testimony that
Russell was an “extra man” at the times when the Respondent attempted to limit his
movements. Nor was there testimony explaining how, if at all, such an assignment affected a
steward’s flexibility to attend to union matters.
40
The credible evidence showed that stewards move around the facility to police the
contract, often in response to inquiries from unit members about potential contract violations,
and usually by driving forklifts or other work equipment to area where they are needed. The
credible testimony of Rizo18 and Hubbard – both long-term stewards – established that,
depending on the type and location of the work activity that the steward was involved in at the 45
time, the steward could sometimes investigate a possible contract violation immediately and
without notifying the Respondent. In other cases, however, the steward delayed the
investigation until after he completed a work task or notified the Respondent and/or obtained the
Respondent’s approval. If, for example, the steward was assigned to operate a forklift and was

18
Rizo was a steward for approximately 3 ½ years ending in 2012, and has also been an official with
the ILA local. At the time he testified in this matter, Rizo was no longer an ILA steward or official.
JD–04–16
30
not busy with any work when he became aware of a potential contract violation, the steward
could immediately investigate the suspected contract violation, without notifying the
Respondent. Tr. 127, 1951-1952. If, after arriving at the location of the potential violation, the
steward concluded that there was a contract violation, he would contact Leach or another
“company man” to discuss the matter. Tr. 123-125. However, if the steward was in the middle 5
of a particular task at the time he was alerted to the possibility of a violation, the steward would
complete that task before leaving to investigate so as not to cause an undue delay by, for
example, “leav[ing] the truck or the railcar stuck there half loaded.” Tr. 126-128, 267-268. In
other circumstances, for example if the steward was on-board a vessel or was assigned to work
that demanded “constant production,” the employee would have to contact an official of the 10
Respondent before leaving to investigate the potential violation. Tr. 1947-1952. Rizo and
Hubbard both used forklifts and other company equipment to move around the facility to
investigate possible contract violations, and the Respondent never told them that they were
prohibited from doing so. Tr. 105-106, 266-268.
15
Russell testified, contrary to Rizo and Hubbard, that union stewards had, in essence, an
unfettered right to stop their work activity without notifying the Respondent and go wherever
they wished at the facility. I found Rizo and Hubbard, both of whom, like Russell, testified for the
General Counsel, to be far more reliable witnesses on this subject than Russell. Rizo and
Hubbard were long-time permanent stewards who I expect would be better versed in the 20
established practices for stewards than was a fill-in steward like Russell. Moreover, unlike
Russell, they did not have a direct interest in the outcome of the allegations relating to Russell’s
movements around the facility. In addition, based on my consideration of his demeanor,
testimony and the record as whole, I found Russell a less reliable witness than either Rizo or
Hubbard.19 I also believe that Russell’s suggestion that stewards had an absolute right to leave 25
their work assignment and move around the facility was facially implausible given that stewards
were assigned to regular work duties that sometimes involved constant production.
2. The Respondent’s Actions Regarding Russell: Leach and Hendricks testified that
Russell had an unusual tendency to disappear at the facility when he had work to perform. 30
Although they provided little in the way of specifics about this, and the documentary evidence is
thin,20 I found their testimony credible. No disinterested witness denied that Russell was
particularly disposed to leave his work duties without notice. If anything Russell’s testimony –
which significantly exaggerated the level of freedom that stewards have to leave their work
duties – lends support to Leach’s and Hendricks’ testimony on this subject. Leach often found it 35
necessary to search the facility to find Russell. When found, Russell would sometimes resist

19
Russell was a particularly hostile and uncooperative witness. On more than one occasion, Russell
attempted to recant testimony he had just given when cross examination suggested that his prior
assertions might be problematic. Tr.1064-1065, 1066-1067. Likewise, when presented with statements in
his signed Board affidavit that appeared to contradict his trial testimony, Russell claimed that the affidavit
had a misprint. Tr. 1062-1063. In a number of instances, Russell began to stonewall, repeatedly stating
he “did not recall,” regarding matters about which he had previously testified confidently. Tr. 1066-1067.
In some instances Russell’s testimony was shown to be at odds with his own notes. Compare Tr. 1091-
1092 (Russell testifies that Leach never warned him that the forklift was not a taxi and that he should use
the union truck) with Tr. 1093-1094 (Russell’s recollection recorded in his own notebook states that Leach
warned him that the forklift was not a taxi and that he should use the union truck.). In numerous other
instances, Russell was evasive or uncooperative as a witness. See, e.g., Tr. 1077-1078 (when asked if
he sometimes leaves his job duties for reasons other than union business, Russell states that most of the
time it is about union business, and repeatedly refuses to answer whether in some instances it is not
about union business).
20
Other than the January 3, 2014, discipline that is being challenged here, the only documentation is
a disciplinary write up from March 5, 2014, which cites Russell for sleeping on the job.
JD–04–16
31
Leach’s direction to return to work, stating that he did not have to follow the direction because
he was a union steward.
The parties focus on three incidents regarding the Respondent’s treatment of Russell.
The first began on December 19, 2013. Russell was serving as a fill-in steward and was on a 5
forklift away from his work assignment talking to Rizo in an area known as Berth A. Hendricks
approached the two because there was no work for a forklift at Berth A. He asked Russell what
he was doing there, and Russell responded that he was “checking out the operation” in his
capacity as steward. Although Russell testified that he told Hendricks he was present there in
his capacity as steward, neither Russell nor Rizo testified that the subject of their conversation 10
was, in fact, union-related. The next day, December 20, Hendricks approached Rizo in the
shape-up room and asked him, in Russell’s presence, if there was a problem in Berth A. Rizo
answered that there was no problem at Berth A. Hendricks then told Russell that he should not
drive his forklift to Berth A because there was no work for him there.
15
The second incident occurred on December 29, 2013, and concerns Russell’s actions
relating to the hiring of unit employees for that day. As I understand it from the testimony, the
hiring procedure at the facility is that the Respondent records a message stating what work is
available on a particular shift for unit employees on the regular list. The collective bargaining
agreement provides that, depending on the circumstances, this recording must be made 20
available to employees a minimum of either 6 or 8 hours before the hiring is expected to occur.21
Employees are able to access this recording by telephone and may then appear at the facility
and seek to be hired. The steward generally works with the Respondent to ensure that an
adequate number of unit employees with the requisite skills present themselves. At the shape-
up meeting, the Respondent hires the unit employees who will work that day from among those 25
who have appeared. The shape-up meeting occurs at a designated time and, in the normal
course of things, employees must be present at that meeting in order to be hired.
After the shape-up meeting for December 29 was over, Russell, who was acting as
steward that day, concluded that there were still some positions that the Respondent needed to 30
fill. Without consulting the Respondent, Russell called Terrance Clemons, an ILA unit
employee, and asked him to report to the facility. Afterwards, Russell informed Hendricks that
he had told Clemons to come in. Hendricks responded that the Respondent did not need any
more employees for the shift and that Russell should let Clemons know that he was not needed.
Russell testified that he attempted to contact Clemons by telephone, but was unable to reach 35
him. Clemons appeared at the Respondent’s guard station and sought admittance to the
facility. The guard called Hendricks, who instructed him to tell Clemons that the shape-up
meeting was over, and that the Respondent did not need him for the current shift. Clemons
contacted Russell, who left his assigned work without notice to the Respondent and went to the
guard station to meet Clemons. Although Hendricks had already told Russell that Clemons was 40
not needed for the shift and would not be hired, Russell told the guard to summon Hendricks to
the guard station. Hendricks came to the guard station where he found both Russell and
Clemons present. Hendricks told Clemons that he had missed the shape-up meeting and that
the Respondent did not need him at that time. In addition, Hendricks told Russell to “get where
you need to be” because there was work that needed to be done at a barge. According to 45
Clemons, Hendricks used a “high tone” of voice when communicating this instruction to Russell.
Russell did not return to work at that time as directed by Hendricks, but rather told Hendricks:

21
The collective bargaining agreement provides: “For work from 6:00 AM to 10:00 PM, the Company
shall provide 6 hour notice through the telephone tape of its best estimate of its anticipated employment
needs. For work from 10:00 PM to 6:00 AM, the Company will provide 8 hours’ notice.” J Exh. 1 at
Section 5.3(C).
JD–04–16
32
“You guys ain’t going to talk to me like a little kid. Fuck that.” Hendricks stated that Russell had
a job to do and needed to return to the barge, but Russell persisted in refusing to comply. Then,
Hendricks warned that he would issue discipline to Russell if he did not return to work. Russell
still did not return to his work assignment. Hendricks told Clemons that he was sorry Clemons
had wasted his time that day and explained that he had previously told Russell that Clemons 5
was not needed. Clemons left and then Russell proceeded back to his work on the barge.
The third incident cited by the General Counsel took place a few days later on January
3, 2014. Hendricks told Russell that a barge was expected at the facility and that he should give
the unit employees a “heads up.” A t some point Leach told Russell that the Respondent was 10
going to conduct a “shape-up” meeting to hire for the shift. Russell took issue with this, stating
that the Respondent could not have a shape-up meeting because it had not used the taped
announcement to give employees the required notice. Leach responded: “You don’t need to tell
me how to do my job. I know how to do my job, you learn to do yours.” Leach also used an
expletive.22 Russell did not engage Leach further on the subject.15
As Russell was leaving work that day, Hendricks presented him with a written
disciplinary warning. The disciplinary notice, dated January 3, 2014, stated that the reason for
the action was: “Failure to modify behavior after multiple warnings from Mr. Terry Leach,
Director of Operations, and Mr. Brad Hendricks, Operations Manager. The specific behaviors 20
are insubordination, leaving the job, and failure to begin work promptly and/or return to work
promptly from meal period.” The Respondent stated that it wanted Russell to: “a) notify a
supervisor when he needs to leave the job; b) begin work promptly at the beginning of a shift
and/or return to work promptly when returning to work from a meal period; c) stop hanging up on
supervisors when they attempt to deliver critical job information.” The Respondent also stated 25
that “Russell needs to follow not ignore supervisors’ work directives.” The notice warned that
unless Russell modified his behavior, he would “be subject to a Disciplinary Layoff and/or
Termination.” Although this write-up states that it follows “multiple warnings” for misconduct,
there is no documentary evidence of prior warnings.23 The disciplinary notice does not identify,
by date or otherwise, the specific incidents that it is based on. However, a cover letter, signed 30
by Hendricks and provided to Russell with the disciplinary notice, makes specific reference to
one incident – the confrontation between Russell and Hendricks at the guard station on
December 29 arising out of the decision not to hire Clemons. About that incident, the letter
states: “[Y]our actions on the morning of December 29, 2013 clearly demonstrate that verbal
reprimands have failed to make you understand the seriousness of your actions and that these 35
behaviors (insubordination, leaving the job, and failure to begin or return to work promptly) must

22
I base this account on the testimony of Rizo, a witness for the General Counsel, who was present
for the exchange between Leach and Russell. Russell gave a somewhat different account than Rizo,
stating that Leach made the more threatening statement, “Don’t be so disrespectful or you won’t be here
that long.” I consider Rizo a more reliable witness regarding this conversation than Russell. Not only
does Rizo have no direct interest in the outcome regarding this allegation, but for the reasons discussed
above, see supra footnote 19, I consider Russell an unreliable witness. I note, moreover, that although
counsel for the General Counsel had Rizo testify on two occasions about what Leach said on January 3,
in neither instance did counsel succeed in eliciting confirmation from Rizo of the threatening statement
claimed by Russell. For his part, Leach testified that he did not recall making the statements recounted by
Rizo, but he did not testify that he recalled that he had not made those statements and he gave no
account at all of the January 3 exchange. Similarly, Hendricks testified that he never heard Leach
threaten Russell, but he was not specifically asked about the particular statements reported by Rizo.
Hendricks did not deny that, on January 3, Leach and Russell had a conversation regarding the timing of
a shape-up meeting, nor did he provide his own account of such a conversation.
23
The write-up that cited Russell for sleeping on the job was not issued until March 5, 2014, and
therefore cannot be one of the prior warnings that the January 3, 2014, disciplinary notice refers to.
JD–04–16
33
stop immediately.” Along with these documents, the Respondent provided several attachments,
including excerpts from the collective bargaining agreement and a policy statement. These
materials were referenced in both the disciplinary notice and the cover letter.
Analysis5
The General Counsel alleges that, on January 3, 2015, Leach violated Section 8(a)(1) by
making a threatening statement in reaction to Russell asserting that the Respondent had to give
employees greater notice before a shape-up meeting could be held. Section 8(a)(1) provides
that an employer may not “interfere with, restrain, or coerce employees” in the exercise of their 10
Section 7 rights.” The General Counsel contends that Leach’s reaction constituted an implied
threat of discharge. Brief of General Counsel at Page 24, citing KSM Industries, 336 NLRB 133,
133 (2001) and Smithers Tire 308 NLRB 72 (1992). As stated above, I do not find that Leach
gave the response that the General Counsel alleges was a threat – i.e., “Don’t be so
disrespectful because you won’t be here that long.” For the reasons discussed above, I find 15
instead that Leach responded by using an expletive and saying: “You don’t need to tell me how
to do my job. I know how to do my job, you learn to do yours.” It is not clear whether the
General Counsel contends that this response violated the Act. At any rate, I conclude that this
response was not an unlawful threat. It does not, on its face, threaten Russell with discharge or
any other adverse job action. Nor does it cross the line into in the area of statements that would20
“reasonably be interpreted” by an employee as a threat that Leach would take adverse action.
Smithers Tire, supra. Given the totality of the circumstances present here, I find that Leach was
referencing Russell’s job knowledge in order to compare it to Leach’s own purportedly superior
knowledge and as a basis for rejecting Russell’s protest about the shape-up meeting – not to
suggest that Russell would be disciplined for exercising his Section 7 rights.25
For the reasons discuss above, I find that the allegation that Leach unlawfully threatened
Russell on January 3, 2014, should be dismissed.
The complaint also alleges that, since about late October or early November 2013, the30
Respondent restricted Russell’s access to certain areas of the facility and that this action was
discriminatory in violation of Section 8(a)(3) and (1), and unlawfully interfered with Russell’s
Section 7 activity in violation of Section 8(a)(1). The allegation that the Respondent was
motivated to do this by Russell’s union activity is analyzed pursuant to the burden shifting
approach under Wright Line, supra. The General Counsel has satisfied the first two elements of 35
the initial Wright Line showing. Since about November 2013, Russell had been filling-in as a
union steward and the Respondent was aware of this. The record does not show that Russell
engaged in other notable union activity, or that he engaged in any such activities prior to
beginning to fill-in as a steward in late 2013.
40
I find that the General Counsel has failed to show animus that satisfies the third element
of the prima facie case. The General Counsel relies on alleged disparate treatment for this
purpose. However, what counsel for the General Counsel presents in this regard is evidence
purporting to show that Russell was treated less favorably than some permanent stewards who
it asserts were not limited to the same extent as Russell. However, those permanent stewards 45
were, if anything, more active in union affairs than Russell was. Facially, such comparisons do
not show that Russell was being discriminated against because of his union activity. For that,
the General Counsel would generally have to compare the way the Respondent treated Russell
to more favorable treatment afforded to employees in general or to those who had not engaged
in the same protected activities. That was not shown. Indeed, the evidence did not show that 50
the Respondent had granted any unit employee, union activist or not, the level of freedom to
leave their duties and move around the facility that Russell tried to claim for himself.
JD–04–16
34
The General Counsel also asserts that animus was shown because Russell was the last
man standing who was able to carry out the duties of steward. That is a theory about
motivation, but not evidence of that motivation. Such evidence is lacking here. To the contrary,
the General Counsel has not even shown that Russell was, in fact, the last unit member 5
available to fulfill the duties of steward. Floering and Sims are both fill-in stewards and were
both employed at the facility during 2013 and 2014. Moreover, Rizo, an individual who had
substantial past experience as a permanent steward, was also working at the Respondent at
that time. Although the Respondent’s discussion of this theory cites two cases and puts the
phrase “last man standing” in quotation marks, neither of the cases cited actually uses the 10
phrase much less holds that an employee’s circumstance as the only available steward would, if
shown, alleviate the need for evidence of animus. See Brief of the General Counsel at Page 23,
citing Bryant and Stratton Business Institute, 321 NLRB 1007 (1996), enfd. 140 F.3d 169 (2d
Cir. 1998) and Thill Inc., 298 NLRB 669 (1990), enfd. in part 980 F.2d 1137 (7th Cir. 1992).
15
Even if I had found that the General Counsel made a weak initial showing of
discrimination, I would find that the Respondent has met its responsive burden. The evidence
shows that Russell had an exaggerated view of the freedoms that he acquired upon becoming a
fill-in union steward in November 2013. See Electro Controls, Inc., 61 NLRB 307, 320 (1966)
(employer did not violate the Act by disciplining an employee who, after becoming a union 20
steward, began to leave his work area without permission and to do so to a greater extent than
other employees). As set forth above, the collective bargaining agreement between the parties
placed limits on employees’ freedom to leave their work areas without notifying the Respondent
or obtaining authorization. The evidence shows that union stewards have been allowed
additional flexibility when they are notified of possible contract violations, particularly if they are 25
not engaged in work activities at the time or are able to complete their current assignment.
However, that flexibility did not extend as far as Russell took it – that is, to permit him to leave
his work activities whenever he decided to (including for matters that may not have been union
business) and to do so without notice to, or permission from, the Respondent, and even, on
occasion, in contravention of a direct order to resume his work duties. Such freedom was not 30
shown to have been granted to any employee at the facility – whether they were active in union
matters or not. To the extent that Russell was leaving areas where he had work to perform, the
record suggests that he was doing so without giving notice or otherwise following the
procedures necessary to limit potential work disruptions caused by such absences. Given the
nature of the work that the unit employees were engaged in at the facility, and the record as a35
whole, I find that the Respondent would have found it necessary to take the actions it did with
respect to Russell’s movements around the facility absent any discriminatory motive.
I also find that the Respondent did not violate Section 8(a)(1) by restricting Russell’s
ability to leave the work to which he was assigned without notifying the Respondent or obtaining 40
its approval. In general, an employer may restrict employees from leaving their assigned work
without permission. Heartland Catfish Co., 358 NLRB No. 125, slip op. at 2 (2012) (employer
does not interfere with Section 7 rights in violation of Section 8(a)(1) by prohibiting employees
from leaving a department during a shift without permission); Emerson Electric Co., 185 NLRB
346 (1970) (employer does not violate Section 8(a)(1) by enforcing a rule prohibiting employees 45
from leaving their work stations without supervisory approval); cf. Weyerhaueser Co., 251 NLRB
574, 583 (1980) (employer violates Section 8(a)(1) by enforcing its rule against employees
leaving their work stations without permission more strictly in response to a union campaign).
Moreover, the record does not demonstrate any specific instances in which the restrictions
imposed by the Respondent meaningfully interfered with the ability of Russell, or any other 50
JD–04–16
35
steward or fill-in steward, to address a potential contract violation or otherwise fulfill their union
duties.
I find that the General Counsel has not shown that the Respondent violated Section
8(a)(3) and (1) or Section 8(a)(1) by restricting Russell’s movements at the facility.
The General Counsel also alleges that the Respondent discriminated in violation of 5
Section 8(a)(3) and (1) when it issued a written disciplinary warning to Russell on January 3,
2014. The General Counsel and the Respondent both acknowledge that this discipline was
premised on the incident involving Russell, Hendricks and Clemons that occurred on January 29
at the guard station. The General Counsel and the Respondent also both treat Russell as being
engaged in union and/or protected concerted activity at that time, and frame the question, at 10
least in part, as whether his conduct in the course of that activity caused him to lose the
protections of the Act. Under Atlantic Steel Co., 245 NLRB 814 (1979), where an employer
defends disciplinary action on the basis of employee misconduct that is part of the res gestae of
the employee’s protected activity, the Board decides whether the otherwise protected activity
has lost the Act’s protection based on a “careful balancing” of four factors: (1) the place of the 15
discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst;
and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
245 NLRB at 816; see also Lou’s Transport, Inc., 361 NLRB No. 158 (2014); United States
Postal Service, 360 NLRB No. 74 (2014).
20
Under the circumstances present here, I conclude that to the extent that Russell was
engaged in protected activity at the guard station he lost that protection through his misconduct.
After the Respondent had completed its hiring for the shift, Russell took it upon himself to
contact Clemons and tell him to come to work. Before Clemons appeared, Hendricks
definitively told Russell that hiring for the shift was complete and that Russell should notify 25
Clemons not to come in. When Clemons nevertheless arrived at the guard station, the
Respondent informed him that the hiring for the shift was closed. There is no dispute that the
Respondent – in this case Hendricks – is the party that makes hiring decisions for particular
shifts, and the General Counsel has not claimed that Russell had a basis under the contract or
otherwise for contending that the decision not to hire Clemons was an unfair labor practice. 30
Although Russell’s explanation is rather unclear as to why he left his assigned duties without
notice and came to the guard station, or why he insisted on summoning Hendricks to the guard
station, I assume that at least one of his intentions was to give Clemons and himself an
opportunity to persuade Hendricks to reverse the decision not to hire Clemons for the shift. I
find that this was protected concerted activity. 35
When Hendricks arrived at the guard station he reiterated that Clemons would not be
hired for the shift, and instructed Russell to return to work on the barge. In response to the first
such instruction, Russell did not raise any issue regarding the failure to hire Clemons, but rather
became insubordinate and used profanity. Hendricks continued to direct Russell to return to his 40
work, and eventually warned that failure to do so would result in discipline, but Russell
continued to defy those directions. Consideration under the factors articulated in Atlantic Steel,
leads me to conclude that Russell forfeited the protection afforded to his protest over the hiring
decision. His outburst was directed at his supervisor, Hendricks, and took place in the open and
in the presence of others, including at least one unit employee. Russell’s actions were a direct 45
challenge to Hendricks’ authority to decide who to hire and to direct Russell to perform work
duties. The General Counsel does not contend that Hendricks was engaged in an unfair labor
practice by refusing to hire Clemons. Moreover, Russell’s outburst was not an isolated incident,
but the culmination of a continuing pattern of refusing to respect the Respondent’s authority to
direct work at the facility.50
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36
The General Counsel cites Lewittes Furniture Enterprises, 244 NLRB 810 (1979) for the
proposition that an employees’ brief refusal to return to work while attempting to raise a matter
of concern with their employer does not cause the employee to lose the protections of the Act. I
do not find that precedent applicable here for a number of reasons. First, Lewittes Furniture is a
pre-Atlantic Steel decision and it is not clear how the Board would have viewed the facts present 5
in Lewittes under the controlling standard subsequently adopted in Atlantic Steel. At any rate,
the circumstances present in Lewittes Furniture are far enough removed from those at issue
here that it would not be controlling precedent even if it had been issued after Atlantic Steel. In
Lewittes Furniture, a group of five employees stopped work for approximately 8 to 15 minutes
while asking the employer for a wage increase. There was no employee “outburst” in the sense 10
discussed in Atlantic Steel and engaged in by Russell, but rather a simple request for a pay
raise. Moreover, the employee in Lewittes Furniture did not refuse an order to return to work.
Indeed the employer did not make such an order, but rather responded to the employees’
request for a raise by ordering them to “get the hell out” of the facility, and issuing termination
notices to them. Russell, in contrast, was insubordinate in that he refused a repeated order 15
from his supervisor to return to his work duties, and used profanity in the process. Moreover, he
did this even though the Respondent had already discussed with him the issue relating to hiring
Clemons for the shift. In addition, I consider it significant that in Lewittes a group of employees
were raising their concern regarding one of the most important terms and conditions of
employment – that is, their ongoing rate of pay. Russell’s more belligerent and persistent 20
protest, on the other hand, concerned the Respondent’s decision not to assign one employee to
one shift on one day.
The General Counsel also cites Avante at Boca Raton, Inc., 332 NLRB 1648 (2001), for
the proposition that an employee’s brief refusal to return to work while attempting to discuss a
matter of concern is not insubordination. However, it is not surprising that the employee in 25
Avante was not considered insubordinate since the individual whose direction he refused was a
nonsupervisory employee who lacked authority to give orders to the refusing employee.
Moreover, the reasoning in Avante specifically relies on the fact that that employee’s
statements, unlike Russell’s, did not include the use of profanity.
The General Counsel, in addition to arguing that Russell’s actions did not cause him to 30
lose the protections of the Act with respect to his activities at the guard station on December 29,
also argues that the timing of the disciplinary warning suggests that it was discriminatorily based
on unlawful animus resulting from Russell’s exchange with Leach on the morning of January 3,
2014, and demonstrated by Leach’s unlawful threat at that time. As discussed above, the
General Counsel has failed to show that Leach unlawfully threatened Russell on January 3, 35
2014, and has also failed to show the Respondent harbored unlawful animus against Russell’s
protected activities for purposes of the Wright Line analysis. Moreover, I do not find the timing
of the disciplinary notice to be suspect. It was issued within a few days of the December 29
incident that the paperwork references and during which incident Hendricks specifically warned
Russell that he would be disciplined if he continued to refuse to return to his work duties. 40
Moreover, the relatively thorough nature of the letter and disciplinary notice – which, inter alia,
include citations to specific work rules and provide relevant attachments – undercuts the
General Counsel’s suggestion that the discipline was thrown together on January 3 to retaliate
for Russell’s comments to Leach that morning. Finally, the mild nature of the discipline is
consistent with the view that such discipline would have been imposed absent any 45
discriminatory motive, regardless of whether harsher discipline such as suspension or
termination could, under the circumstances, have been defended. To sum up, the General
Counsel has failed to make the initial showing of animus required under Wright Line. Even if it
had, the Respondent has shown that it would have issued the disciplinary write-up to Russell
JD–04–16
37
based on the December 29 misconduct referenced in that write-up even if Russell had not
engaged in protected activity.
For these reasons, I find that the allegation that the Respondent violated Section 8(a)(3)
and (1) when it issued a written warning to Russell on January 3, 2014, should be dismissed.
5
J. TERMINATION OF BROWN
The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1), and
Section 8(a)(4) and (1) of the Act by discriminatorily terminating Brown on October 1, 2013,
because of his union activity and participation in the Board’s processes. Leach, who made the 10
decision to terminate Brown, testified that he did so exclusively because Brown caused damage
to an end loader by riding the brakes while operating it on the night shift of September 19 to 20,
2013.24
1. Brown’s History at the Facility: Brown began working at the facility in 2004. Prior to 15
July 2012, Brown was an ILA member, but not an ILA officer. Brown was elected president of
the ILA local when it emerged from trusteeship in July 2012, and continued to hold that position
at the time of the hearing in this matter. During his time as president, Brown has served as
chief contract negotiator for the ILA local, chairman of the safety committee, and the ILA’s
representative for purposes of grievance processing. Brown was also the ILA official who, on 20
August 5, 2013, directed the ILA unit employees to stop work over the dispute regarding the use
of non-ILA individuals to handle aluminum on the wet side of the facility, and during that work
stoppage he was the union officer who presented the ILA’s position to Leach. On June 10-14
and August 21, 2013, during a prior unfair labor practices proceeding against the Respondent,
Brown was present as a representative of the ILA local and also testified. 25
For a period of time after starting at the facility, Brown was a regular list employee,
however, he rather quickly acquired the skills necessary to qualify for placement on the skilled
list and more consistent employment.25 Leach asked Brown to join the skilled list in the fall of
2007 and again in 2008. In at least one of those instances, Leach attempted to require Brown30
to join the skilled list, but the collective bargaining agreement permitted Brown to decline and he
did so. Brown eventually joined the skilled list on July 1, 2011. Generally only a small minority of
the unit employees qualify for the skilled list. The various order of call documents submitted at
the hearing have between 6 and 11 unit employees on the skilled list and between 25 and 51
unit employees on the regular list. The order of call list that the Respondent issued immediately 35
prior to Brown’s termination states that he was qualified for: signalman, rigging, crane operator,
checker, fork-lift operator, end loader operator, and fall protection. This was as high a number
of areas of qualification as any employee on that order of call list.
Shortly after Brown became president of the ILA local, the Respondent, on August 9, 40
2012, issued two written disciplinary notices to him for causing damage at the facility. One
concerned an incident on July 27, 2012, that resulted in damage to a warehouse wall. The
notice stated that “this incident can be attributed to operating the forklift at a speed unsuitable
for the conditions.” The other disciplinary notice was a written reprimand, which stated that, on
August 4, Brown had damaged a power line with the end loader he was operating. That notice 45
stated that “[a]fter an investigation, it has been determined that this situation could have been
avoided had [Brown] examined the area thoroughly before raising the bucket of the end loader.”

24
That shift began at 6 pm on September 19, 2013, and ended at 6 am on September 20, 2013.
25
A unit employee must become qualified to perform four of the types of skilled work listed in the
collective bargaining agreement in order to move onto the skilled list.
JD–04–16
38
Both notices are signed by Leach and conclude by stating that “[a]ny further occurrences could
result in equipment disqualification, suspension, and or termination.”26
2. Prior Decision Regarding Discrimination against Brown: In a decision dated March
31, 2015, the Board affirmed the decision of Administrative Law Judge Mark Carissimi in an 5
earlier case involving the same employer and union. Midwest Terminals of Toledo Int’l, 362
NLRB No. 57 (2015). That decision found, inter alia, that the Respondent bore animus against
Brown because of his protected activities and unlawfully discriminated against him on that basis
by denying him regular work assignment and light duty work assignments. Leach, the decision
found, had lied about his reasons for denying light duty work to Brown and that the real reason 10
was unlawful discrimination. Among the other findings was that Leach had made an antiunion
threat and had physically assaulted an employee because of that employee’s union and/or
protected concerted activity. The hearing in the prior case was held on June 10-14, 2013, and
August 21, 2013. Brown was present throughout that proceeding as a party representative and
testified during the August 21 session.15
3. Brown and the End Loader Damage in September 2013: The Respondent contends
that Brown was discharged for causing damage to the end loader he was operating on the night
shift of September 19-20. The particular end loader Brown was operating at that time is referred
to at the facility as “3-Kawasaki.” Brown had been operating various end loaders for 6 days in a 20
row culminating with that shift. From September 16 to 19, the 3-Kawasaki loader was in almost
continuous operation, with Ralph Leiby, another bargaining unit employee, operating it during
the day shifts from 8:00 am to 5:00 pm.
Before starting work on an end loader, the operator is required to perform a pre-shift 25
inspection. That entails turning on the end loader, checking the gauges, then moving it and
engaging the brakes. Neither Brown nor Leiby reported discovering any problems with 3-
Kawaski during their pre-shift inspections on September 19.
During the night shift on September 18 to 19 – that is, during the shift prior to the one on 30
which the Respondent says Brown damaged 3-Kawasaki – Brown was operating 3-Kawasaki
when a warning light briefly flashed on the control panel. Brown informed Moody – the
supervisor on duty – about this and Moody told Brown to inform him if the warning light came
back on. The warning light did not come back on. Brown mentioned the warning light to Leiby,
and Leiby told Brown that he had concerns about the transmission. When Brown next operated 35
3-Kawasaki, he paid attention to the transmission, but did not notice a problem.

26
During his testimony, Leach stated that there was an incident in approximately 2007 or 2008 when
Brown had misused the brakes on a forklift. Brown denied the incident described by Leach. I do not find it
necessary to resolve this factual dispute. Leach testified that he made the decision to discharge Brown
based exclusively on Brown’s operation of 3-Kawasaki on September 19-20, 2013, not on anything that
occurred in 2007 or 2008. Tr.1748-1749. Similarly, the paperwork prepared by the Respondent for
Brown’s termination makes no reference to any incident in 2007 or 2008, or to any basis for the
termination other than the September 2013 damage. GC Exh. 43. I note, moreover, that the disputed
incident in 2007/2008, even if it did occur, was quite distant in time. The Respondent’s policy handbook
provides that “documentation of violations of at-risk behaviors and/or company policies” must be
maintained in the employee’s personnel file for 9 months after the documentation is created and that the
employee may seek to have such violations removed from his or her personnel file after that period. J
Exh. 2 (Progressive Disciplinary Policy #2000) at Section II.E. At the time the Respondent terminated
Brown, the 2007/2008 incident that Leach mentioned would have been several years outside the 9-month
period.
JD–04–16
39
During the September 19-20 shift, Brown was using 3-Kawasaki to pick up coke or coal
from a pile and move it to a dumping location about 100 yards away. Fussell was doing the
same work on a different end loader, and was generally following behind Brown as the two went
back and forth between the pile and the dumping location. The area where this work was being
done was lit. Brown denies that he was riding the brakes during that shift, and states that for 5
most of the shift he did not experience any problems with 3-Kawasaki. Fussell testified that
Brown was not riding the brakes during that shift. Fussell explained that he would have known if
Brown had been doing so because it would have slowed their work unreasonably. He also
testified that he did not see the 3-Kawasaki’s rear brake lights come on while he was following
behind Brown.10
Moody, the supervisor on the night shift, communicated with Brown and Fussell by way
of a radio system. The radio system allowed Fussell to hear communications not only from
Moody to himself, but also between Moody and Brown. During the shift, Moody also sometimes
approached Brown and Fussell while they were on the end loaders in order to talk with them in 15
person. The last time Moody did this during the September 19-20 shift was at about midnight.
When he approached Brown and 3-Kawasaki on that shift, Moody did not notice unusual smells
or anything else that would suggest a problem with the equipment’s brakes, nor did he observe
Brown operating 3-Kawasaki in an improper manner.
20
Towards the end of Brown’s September 19-20 shift, a warning light was triggered in 3-
Kawasaki and stayed lit. Brown was not familiar with the particular warning light. Brown also
noticed a buzzing sound. He stopped the end loader and called Moody on the radio and told
him that a sensor had been triggered on 3-Kawasaki. Moody told Brown to take 3 Kawasaki to
the maintenance shop.27 Brown brought 3-Kawasaki to the maintenance shop and told a 25
maintenance employee about the warning light.
When Hendricks arrived at work shortly before 6 am on September 20, a maintenance
employee advised him that there was a problem with 3-Kawasaki. Hendricks inspected it, and
observed that there was warning light and a burning odor. He could feel heat “coming off” the 30
loader. Leach arrived at the facility shortly after Hendricks, and Hendricks informed him of the
problem. Leach testified that he did not recall if anyone had moved 3-Kawasaki after Brown
stopped operating it. Tr. 1813. Leach stated that even from a distance he could “smell the
brakes” on 3-Kawasaki and that when he got closer he observed heat-related discoloration to
parts of the brakes. According to Leach, an operator should be able to tell something is wrong 35
with the brakes by the smell. Leach told Hendricks not to let anyone else move the end loader
until a representative arrived from Reco Equipment, Inc. (Reco). Reco is the outside contractor
that the Respondent uses for major repairs to the Kawasaki end loaders. Later on September
20 – the same day the damage was discovered – Robert Groweg, a heavy equipment mechanic
from Reco with 23 years’ experience, arrived at the facility. Leach asked Groweg to do a full 40
assessment of what was wrong with 3-Kawasaki. Leach testified that at this point he already
thought that the damage was the result of “inattentive operating” by Brown, but that he wanted
this conclusion to come from Reco, rather than from himself, because he was concerned that he
would be accused of discriminating against Brown. Leach had no further conversation with
Groweg about the matter. Leach did, however, discuss the situation and Groweg’s assignment 45
with Laverne Jones, a non-unit employee in the maintenance department.

27
Brown and Fussell both testified that Brown had used the radio to notify Moody of this problem.
Moody testified that he did not recall that communication, but his answers make clear that he was only
testifying that he did not recall such a conversation, not that he recalled that such a communication had
not taken place.
JD–04–16
40
Groweg did an initial examination of 3-Kawasaki on September 20. The damage he
observed went well beyond normal wear and tear and eventually required approximately
$25,000 in repairs. On that first day, Jones asked Groweg what was wrong with the end
loader. Groweg told Jones that he had not found anything mechanically wrong that would
explain the damage. In response to Jones’ questioning, Groweg stated that the “only thing that 5
could be left is if an operator was resting his foot on the brake pedal when they were running it.”
Jones asked Groweg to put that information in the service report. Groweg had never included a
statement assigning blame in a service report before, Tr. 1366, but he did so in this case
because of Jones’ request.28 The service report that Groweg created that day was one page
long and including the following statement:10
Drove to jobsite. Checked out brakes on loader. Found final drives were pretty
hot. Checked temp of final drive covers and rear axle was about 150 degrees
and front axle was 110 degrees after setting [sic] 4 to 5 hours. Looked at wheel
seals left rear is leaking already. Checked accumulators and the pressures little 15
low but not enough to be a problem. Brakes and seals are going to need
replaced. Problem was do [sic] to operator not using machine properly.
GC Exh. 29. Groweg did not talk to Brown or any other operator, nor did he complete a full
inspection, before making this initial report on September 20.20
It was only after September 20, that Groweg did a full inspection of 3-Kawasaki by
removing its wheels and accessing various components. Before finishing the work, Groweg
completed 12 additional service reports regarding 3-Kawasaki. Through the course of the work,
Groweg identified a number of mechanical factors that could have played a part in the brake 25
damage. Groweg found that the “transmission disconnect’ system was not working on the 3-
Kawasaki at the time Brown was operating it, thus compromising a mechanism that Groweg
testified was designed to ensure “that the transmission is not trying to pull through the brakes
when you’re raising the loader.” Tr.1350-1351, 1354-1355. Groweg also concluded that at the
time Brown was operating 3-Kawasaki its brake pressure switch was broken. According to 30
Groweg, the brake power switch “tells the computer when you’re applying the brakes and also it
gives you brake pressure so you can see what the brake pressure is when you push on the
brake pedal, at different positions on the brake pedal what the pressure is.” Tr. 1356. Groweg’s
post-September 20 service reports note, inter alia, that on October 4, Groweg discovered that
the brake pressure switch was “bad” and that when he checked the transmission the disconnect 35
did not operate. GC Exh. 29. Groweg told both Jones and an attorney for the Respondent that
Brown could have caused the damage without knowing it because if he applied a slight bit of
pressure to the brakes “you may not feel it in the operation of the loader.” Tr. 1377-1380. At
trial Groweg indicated that he was not sure that the operator had caused the damage by riding
the brakes. Tr. 1348.40
On September 27, 2013 – 7 days after the Respondent discovered the damage to 3-
Kawasaki – Leach approached Brown about the damage for the first time. Leach interrupted
Brown’s work, and said “Tell me what happened to the end loader.” Brown did not understand
what Leach’s question referred to since he had recently operated three or four different end 45
loaders and had not operated 3- Kawasaki since September 20. Brown replied, “What?” Leach
said “I want you tell me what happened to the end loader.” Brown asked “Which end loader?”
and Leach said, “The one you were riding.” Leach eventually revealed that he was talking about
3-Kawasaki and said “I want to know what you did to it.” Brown replied: “I didn’t do nothing to it.

28
Jones was not called as a witness in this case to explain what led him to ask Groweg to report his
surmise regarding operator error in his initial service report.
JD–04–16
41
What’s wrong with it?” Leach told Brown, “Tell me anything that might have . . . happened to it.”
Brown related that Leiby had mentioned concerns about the transmission. Leach said: “I ain’t
talking about the transmission. The brakes.” Leach said he wanted Brown to give him a written
statement regarding “everything that happened.” Brown said that he would give a statement
when they met and Leach explained what he was asking about. Leach said, “Okay. We’ll 5
probably meet on Monday.” Brown indicated to Leach that he would give a statement at that
time. Leach, however, did not attempt to meet with Brown on Monday. Nor did he make any
further efforts to obtain a statement from Brown prior to terminating him.29
Leach testified that his effort to investigate the damage to 3-Kawasaki, in addition to the 10
above, consisted of talking to Leiby and Hendricks. Leach did not memorialize these
conversations in writing. Leach chose not to interview Fussell about the matter despite the fact
that Fussell had been in a position to observe Brown operating 3-Kawasaki throughout the
September 19-20 shift. Indeed, the evidence does not show that, prior to making the decision to
terminate Brown, Leach interviewed a single witness who observed Brown working on 15
September 19-20.
On October 1, 2013, Leach presented Brown with a letter terminating his employment.
The letter was signed by Leach, and the body of the letter stated in its entirety:
20
After completing the investigation for equipment abuse and misuse, it is my duty
to inform you that your employment with Midwest Terminals of Toledo
International, Inc. is terminated effective immediately. If you have not done so
already, please turn in all company property (keys, gate card, etc.) in your
possession prior to leaving the facility today and remove all personal items from 25
your locker.
The Respondent did not attach documentation or an investigative report to this letter. When he
received the letter, Brown asked: “Where is the investigation? Where is the documentation?”
Leach answered “ You have what you need in front of you. I will tell you right now, verbally, that 30
we are already at $20,000.” At trial, Leach testified that the primary basis for this decision was
the one-page initial report that Groweg completed on September 20. Leach testified that he
never spoke to Groweg about that report. Moreover, Leach did not claim that prior to October
1, or later when he denied the grievance regarding the discharge, he considered any of the
subsequent reports that Groweg prepared for the Respondent, including those which stated that 35
the brake pressure switch had been “bad” and that the transmission disconnect mechanism had
been inoperable. Nor did Leach state whether he was aware of, or considered, the fact that
Groweg had reported to Jones and Respondent’s counsel that, under the circumstances, Brown
could have caused the damage without knowing it.
40
The ILA grieved the decision to terminate Brown, and the Respondent denied the
grievance. At the step one grievance meeting, Leach told Brown and Sims that Brown had
caused damage by “riding the brakes.” Brown told Leach that he had not been riding the
brakes. Leach responded: “Gentleman, the union wants Otis[ Brown] reinstated. That is not
going to happen.” The Union moved the grievance to step two, and on October 16, 2013, the 45
Respondent denied the grievance again. When Brown applied for unemployment

29
I base this account of the September 27 exchange largely on the testimony of Brown, which was
more detailed than, and largely consistent with, Leach’s testimony about it. To the extent Brown’s and
Leach’s testimonies conflict, I credit Brown. I found Brown to be an honest, if extremely circumspect,
witness and generally more credible regarding disputed matters than Leach. For the reasons discussed
above, I found Leach less than fully credible. See, supra, footnote 3.
JD–04–16
42
compensation, the Respondent opposed his application, contending that Brown was barred
from receiving such compensation because his termination was for just cause. The State of
Ohio Unemployment Compensation Review Commission rejected the Respondent’s contention,
and found that the Respondent lacked just cause to discharge Brown. The Respondent
appealed, but the decision of the State Review Commission was upheld in court. See5
Cardiovascular Consultants of Nevada, 323 NLRB 67 n. 1 (1997) (state unemployment
compensation decisions are admissible in Board proceedings but not controlling).
4. Respondent’s Written Policy on Damage and the Evidence Regarding Treatment of
Others: At all times relevant to Brown’s termination, the Respondent maintained “Equipment 10
Abuse & Misuse Policy #3050.” That Policy classifies “hard breaking” as a Level I offense (the
lowest level), “excessive hard breaking” as a Level II offense (the middle level), and causing
“brake system damage due to hard breaking” as a Level III offense (the highest level). The
policy sets forth progressive discipline for each level of offense. For Level I and Level II
offenses, termination is not a possibility until the fourth and third offenses respectively. For 15
Level III offenses, termination is generally not a possibility until the second offense, however,
this is qualified by a section stating that any Level III offense “resulting in equipment damage
and facility damage over $500 . . . may result in termination.” The Respondent asserts that it
terminated Brown pursuant to its Abuse and Misuse policy because he caused brake system
damage and that damage exceeded $500. The policy handbook also contains a section titled 20
“Equipment Policy #3000” which provides, inter alia, that “damage to any piece of equipment,
facility, or property,” or “mistreatment of equipment” may result in termination in the case of first
offense and will result in termination in the case of a second offense. The Respondent does not
claim that Brown was terminated pursuant to Equipment Policy #3000, but rather states that he
was terminated pursuant to the Equipment Abuse and Misuse Policy #3050, which is outlined 25
above. Brief of Respondent at Page 12. However, a number of the comparator employees
identified by the parties appear have been disciplined pursuant to Equipment Policy #3000.
The parties introduced information regarding the discipline imposed on multiple other
employees whose actions resulted in damage to equipment or structures at the facility. In all 30
but one of those cases, the employee received either discipline short of termination, or no
discipline at all. The record shows that, in January 2012, Joseph Victorian, Sr., (J. Victorian)
drove an end loader into a gas line and barrier poles, causing damage to both, but was not
disciplined. In June 2012, J. Victorian was at fault in an accident that caused over $50,000
worth of damage to an end loader. Leach disciplined J. Victorian for that accident with a written 35
warning and disqualification from end-loader operation for 30 days. J. Victorian was an ILA-
represented employee, but was not shown to be a union official or particularly active in union
affairs. Another employee, Newcomer, was not terminated even after multiple accidents in
which he caused damage to equipment or structures. These accidents included knocking over
a telephone pole, “slicing” two railcars, and damaging a vessel while loading material onto it with 40
a crane. In the case of the damage to a vessel, the repairs required a team of four outside iron
workers. In 2014, Newcomer backed a crane into a coal pile and tore a stabilizer off the crane.
Newcomer received a “write-up” for that incident. Newcomer was a union member, but had no
position with the union. In July 2008, Moody, a non-supervisory unit employee at the time, ran
the forklift he was operating into a transformer, causing damage that required over $28,000 in 45
repairs by an outside electrical contractor. Leach punished Moody for this incident with a written
reprimand. In 2010 or 2011, Moody had another accident – this time hitting an employee with
his forklift and necessitating a visit by that employee to a hospital. There is no evidence in the
file that Moody received any discipline at all for that accident. In 2013, Ryan “Moose”
Richardson, a non-unit employee, was operating a crane and caused damage to its hydraulic 50
system. The Respondent did not issue any discipline to Richardson for that accident.
JD–04–16
43
In its brief, the Respondent itself admits that there were multiple other instances in which
it issued nothing more than written or verbal reprimands to employees who were involved in
accidents that caused damage to equipment or structures. Brief of Respondent at Pages 36-37.
These instances include ones in which the employee: damaged a carbon fiber grill while
operating an end loader in 2011; was operating a forklift and collided with a support beam in 5
2013; tipped a forklift over in 2013; shattered a windshield as a result of operator error in 2013;
and drove a front-end loader into a hole.
The Respondent cites only a single employee, other than Brown, who it discharged for
causing damage to equipment or structures at the facility. That employee was J. Victorian who, 10
as discussed above, had already been subjected to lesser discipline for causing damage on two
separate occasions in 2012 – one of which resulted in repairs costing in excess of $50,000. J.
Victorian was terminated after yet another accident, this one in 2013, which required extensive
repairs. In that instance the Respondent concluded that J. Victorian was operating a forklift in
an unsafe manner when he collided with the main support beam in the largest warehouse at the 15
facility. The Respondent had to call in an outside contractor to make repairs and ensure that
the warehouse roof did not collapse. Leach testified that before terminating J. Victorian for this
accident he conducted an investigation that included obtaining statements from J. Victorian and
other individuals who were present when the accident occurred.
20
Analysis
The General Counsel alleges that the Respondent discriminated in violation of both
Section 8(a)(3) and (1) and Section 8(a)(4) and (1) of the Act when it discharged Brown on
October 1, 2013. These claims are properly analyzed using the burden shifting approach set 25
forth in Wright Line, supra. The General Counsel has introduced evidence sufficient to make
out a prima facie case that the Respondent discriminated against Brown. At the time Leach
made the discharge decision, he was aware that Brown was the president of the ILA local and
served as the ILA local’s chief negotiator and its representative for purposes of grievance
processing. In addition, just 2 months before Leach terminated him, Brown led the unit in a 30
work stoppage to protest Leach’s unlawful use of non-ILA individuals on the wet side of the
dock. Brown had also testified against the Respondent in a recent Board hearing involving
multiple claims that the Respondent committed unfair labor practices against ILA members.
Brown was present as a party representative throughout that hearing, which eventually resulted
in a decision finding, inter alia, that Leach had lied about the reason for denying Brown light duty 35
work and that the real reason was discrimination based on Brown’s protected activities. 362
NLRB No. 57 (2015). There is no question that at the time of his termination, Brown was the
leading ILA activist at the facility and that the Respondent was aware of this.
The record also amply demonstrates that the Respondent, and in particular Leach, 40
harbored animus against the ILA. This animus is demonstrated on the record of this case by
the Respondent’s discrimination against Hubbard, as well as by the fact that Leach reacted to F.
Victorian’s protest regarding an unfair labor practice by raising his voice and warning “I’m about
this far off your ass.” As discussed above, in a recently decided case the Board affirmed that
Leach had lied about the reason for denying Brown light duty work and that the action was the 45
result of animus against Brown’s protected activities. In addition, the Board affirmed, that Leach
was so hostile to protected activity that in one instance he reacted such activity it by assaulting
the employee involved.30 Although the evidence did not include any overt expressions of

30
The decision in the prior case involving the same employer may be relied on as background
evidence in this proceeding, including on the question of animus. See Norman King Electric, 334 NLRB
154, 159 (2001); Stark Electric, 327 NLRB 518 fn.2 (1999).
JD–04–16
44
animus directed at Brown’s participation in the Board’s processes, it is reasonable to infer that
the Respondent’s demonstrated animus towards the exercise of Section 7 rights would extend
to Brown’s efforts to vindicate those Section 7 rights using the Board’s processes. Moreover, in
its unlawful actions against Hubbard, which are discussed above, the Respondent
demonstrated hostility towards employee participation in the Board’s processes. See5
Commercial Air, Inc., 362 NLRB No. 39, slip op. at 1 fn.1 (2015) (“[P]roving that an employee’s
protected activity was a motivating factor in the employer’s action does not require the General
Counsel to make a particularized showing of animus towards the disciplined employee’s own
protected activity.”).
10
The timing of Brown’s discharge also supports finding that unlawful animus was a factor.
Success Village Apartments, 348 NLRB 579 fn. 5 (2006) (timing of discipline in relation to
charges and Board hearing was evidence of animus); Detroit Paneling Systems, Inc., 330 NLRB
1170 (2000) (timing is an important factor in assessing motivation in cases alleging
discriminatory discipline based on union or protected activity). Brown had been an employee at 15
the facility for 9 years, and Leach discharged him less than 60 days after Brown led a work
stoppage regarding the highly contentious dispute over Leach’s use of non-ILA employees on
the wet side of the dock, and within 6 weeks after Brown testified against the Respondent in an
unfair labor practices hearing. Moreover, the write-ups that Leach had previously issued to
Brown on August 9, 2012, were imposed within a few days or weeks after Brown became 20
president of the ILA local.
Although the above evidence is more than sufficient to demonstrate the necessary
animus, I find that further evidence is provided by the testimony and exhibits showing that the
Respondent treated Brown more harshly than other employees. It is true that the Respondent’s 25
policies #3000 and #3050 discussed discipline, including under certain circumstances discipline
up to termination, for employees who caused damage to equipment or structures. However, the
record shows that it was overwhelmingly the exception, rather than the rule, for the Respondent
to react to such damage by discharging the involved employee. In at least 10 prior instances
discussed above, the Respondent imposed discipline short of discharge, or no discipline at all, 30
on employees it found responsible for causing damage at the facility. These included instances
in which individuals caused damage in excess of that which the Respondent attributes to Brown,
but who, unlike Brown, were not the facility’s leading union activist. See T. Steele Construction,
348 NLRB 1173,1186 (2006) (“When employees who were not involved in protected activity are
given lesser discipline for worse conduct it suggests an improper motive.”). In one of those 35
instances J. Victorian’s error resulted in damage costing over $50,000 to repair – about twice
the amount attributed to Brown – and yet the Respondent let J. Victorian off with a written
warning and a 1-month disqualification from operating a particular type of equipment. In
another, Moody caused $28,000 in damage and Leach let him off with a written reprimand.
40
Since the General Counsel has succeeded in making the required initial showings under
Wright Line, the burden shifts to the Respondent to show that it would have discharged Brown
based on the damage to 3-Kawasaki even if Brown had not engaged in protected activity and/or
participated in the Board’s processes. Camaco Lorrain, supra; ADB Utility, supra; Intermet
Stevensville, supra; Senior Citizens, supra. The Respondent has failed to meet its responsive 45
burden in this case. The Respondent’s argument stumbles at the outset given the evidence,
discussed immediately above, that the Respondent dealt far more harshly with Brown than it did
with other employees to whom it attributed damage at the facility. Against the parade of
examples of more lenient treatment, the Respondent offers a single example in which it
terminated an employee for causing damage at the facility. As discussed above, that employee 50
– J. Victorian – had previously been retained after causing damage on two prior occasions,
even though there was no doubt that J. Victorian was culpable and, in one case, the damage
JD–04–16
45
was twice as costly to repair as that for which the Respondent claims to have discharged
Brown. The Respondent did not terminate J. Victorian until, within the same 2- year period, he
caused yet another major accident – one that threatened to bring down the roof of the
Respondent’s largest warehouse.
5
Moreover, the record shows that Leach, who has already been shown to be disposed to
discriminate against Brown, leapt at the chance to use the damage to 3-Kawasaki as a grounds
for terminating him.31 Before becoming president of the ILA local, Brown had a long history as a
valued equipment operator for the Respondent. In fact, prior to Brown’s emergence as a union
activist, Leach had valued him so highly that he repeatedly tried to get Brown to join the skilled 10
list. Brown had been operating end loaders at the facility for many years. Given these
circumstances, it is reasonable to expect that Leach would have substantial doubts about the
likelihood that Brown would suddenly become so incompetent or careless an operator as to
cause major damage to an end loader absent a mechanical failure or an accident of some sort.
However instead of evidencing any such doubts, Leach seized the opportunity to attribute the15
damage entirely to Brown.
Leach testified that the primary thing he relied on in deciding to terminate Brown was the
initial one-page service report that Groweg prepared on the day that the damage to 3-Kawasaki
was discovered, although Leach admitted that even before receiving that report he attributed the 20
damage to inattentive operation by Brown. As discussed above, during Groweg’s initial
examination of 3-Kawasaki he could find no mechanical explanation for the damage and
therefore believed that improper operation was the cause. Groweg testified that this was merely
his surmise at that time and that he could not be certain. However, at Jones’ urging, Groweg
did something he had never done before – he included his impression regarding operator error 25
in the initial service report.
After carefully considering the record evidence here, I find that the Respondent has not
shown that Leach would have discharged Brown based on that initial service report if not for
Brown’s protected union activities and participation in the Board’s processes. While Groweg’s30
initial report summarily states that improper use by the operator caused the damage, it does not
state that such improper use occurred during the shift when Brown was operating 3-Kawasaki,
as opposed to during a prior shift, or over the course of multiple shifts, or during any movement
of the end loader that may have occurred after Brown parked it.32 The evidence shows,
moreover, that Groweg submitted 12 additional service reports to the Respondent as he 35
completed a full inspection of, and repairs to, 3-Kawasaki. Based on his full inspection, Groweg
found that, contrary to his initial impression, there were mechanical problems with 3-Kawasaki.
He discovered, inter alia, that the brake pressure switch and the transmission disconnect
mechanism were both dysfunctional during Brown’s last shift operating it. Those are both
mechanisms that assist the operator in protecting the brakes. Groweg informed Jones and 40
counsel for the Respondent that, under the circumstances, the operator could have caused the

31
See New Orleans Cold Storage & Warehouse Co., 326 NLRB 1471, 1477 (1998) (An employer's
“failure to conduct a meaningful investigation and to give the employee who is the subject of the
investigation an opportunity to explain are clear indicia of discriminatory intent.) enfd. 201 F.3d 592 (5th
Cir. 2000); see also Health Management, Inc., 326 NLRB 801, 806 (1998) (fact that discharge was close
in time to protected activity and imposed “on the basis of a questionable determination in a rush to
judgment” over culpability and despite the employee’s denial support an inference that the
nondiscriminatory reason offered by the employer was pretextual), enfd. in relevant part 210 F.3d 371
(6th Cir. 2000).
32
Leach testified that he did not know if anyone had moved 3-Kawasaki after Brown turned it in. Tr.
1813.
JD–04–16
46
damage without knowing it. Leach did not explain why he insisted upon continuing to rely on
Groweg’s vague initial assessment even after Groweg’s more thorough inspection led him to
report that the brake pressure switch and transmission disconnect mechanism had not been
functioning and that the damage could have occurred without the Brown’s knowledge. Leach
did not even have a conversation with Groweg about his inspection reports prior to discharging 5
Brown and denying the Union’s grievance regarding it.
The conclusion that the Respondent has failed to show that Leach would have
terminated Brown if not for Brown’s protected activity is buttressed by other aspects of how
Leach handled his inquiry about the damage. In the case of J. Victorian, Leach imposed the 10
harsh discharge penalty only after he obtained J. Victorian’s statement and interviewed
witnesses to the accident. That stands in stark contrast to the way Leach handled the
investigation regarding Brown’s responsibility for the damage to 3-Kawasaki. Leach discharged
Brown without obtaining his statement, even though Brown had offered to meet and give a
statement. See Amptech, Inc., 342 NLRB 1131, 1146 (2004), enfd. 165 Fed. Appx. 435 (6th15
Cir. 2006) (failure to inquire of the disciplined employee as to “what had occurred constituted a
rush to judgment attributable to Respondent's unlawful motivation to take adverse action against
the leading prounion employee on the premises); see also, New Orleans Cold Storage, supra.
In addition, Leach decided to terminate Brown without interviewing Fussell – the one witness
who had been working with Brown throughout the relevant shift and who was in the best 20
position of anyone other than Brown himself to observe whether Brown was riding the brakes
during the shift and whether there were any burning smells that should have alerted Brown to a
problem. Fussell’s testimony indicated that, had Leach bothered to interview him, Fussell would
have reported that Brown was not riding the brakes on 3-Kawasaki during the shift in question.
Leach did not even claim that before terminating Brown he interviewed Moody, the acting 25
supervisor and someone who, during the relevant shift, was in radio contact with Brown and had
several opportunities to approach Brown while he was on 3-Kawasaki and to perceive any
unusual burning odors.
For the reasons discussed above, I conclude that Leach seized on the damage to 3-30
Kawasaki as a pretext to rid the facility of the most active prounion employee in the ILA
bargaining unit, without regard to culpability for the damage. Even assuming that Leach
believed in good faith that, despite Brown’s long history as valued employee, he had a lapse in
operating competence that caused the damage, the record indicates that Leach would have
imposed discipline short of discharge, as he did for the vast majority of other employees, if not 35
for the unlawful animus against Brown’s protected union activities and participation in the
Board’s processes.
I find that the General Counsel has established that the Respondent discriminatorily
terminated Brown in violation of Section 8(a)(3) and (1) and Section 8(a)(4) and (1) of the Act.40
JD–04–16
47
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
5
2. The International Longshoremen’s Association, Local 1982, AFL-CIO, (the Union, or
the ILA, or the ILA local) is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent, by Christopher Blakely, unlawfully threatened Prentis Hubbard in
violation of Section 8(a)(1) by telling him that he was too busy with Hubbard’s union charges 10
and grievances to complete the paperwork relating to Hubbard’s workers’ compensation claim.
4. The Respondent violated Section 8(a)(5) and (1) of the Act: since August 2013, by
unilaterally changing its established past practice regarding transfer of aluminum at the facility in
a manner that deprived the ILA bargaining unit employees of work that they had historically 15
performed; since November 2013, by unilaterally reassigning calcium unloading work historically
performed by the ILA bargaining unit employees to others outside the unit; since June 23, 2013,
by unilaterally ceasing informal crane training for ILA bargaining unit employees; and when it
denied Hubbard pay that he was entitled to under past practice and the collective bargaining
agreement for hours he would have worked on August 11, 2013, if he had not left work due to a 20
work-related injury.
5. The Respondent discriminated in violation of Section 8(a)(3) and (1) and Section
8(a)(4) and (1) of the Act: in October 2013 when it terminated Otis Brown’s employment; and
when it failed to pay Hubbard for the hours he would have worked on August 11, 2013, if he had 25
not left work due to a work-related injury.
6. The Respondent was not shown to have committed the other violations alleged in the
Complaint.
30
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to 35
effectuate the policies of the Act. The Respondent, having discriminatorily discharged Brown,
must offer him reinstatement and make him whole for any loss of earnings and other benefits
resulting from that discrimination. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 40
NLRB No. 8 (2010). The Respondent shall file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters and shall also compensate Brown for
the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012). In addition,
the Respondent must make Hubbard whole for the pay he was unlawfully denied on August 11, 45
2013. Hubbard’s make-whole remedy shall be computed in accordance with Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than with F. W.
Woolworth Co., supra. See Pepsi-America, Inc., 339 NLRB 986 fn. 2 (2003). The Respondent
shall also make the ILA bargaining unit employees whole for any losses in earnings and other
benefits that they suffered as a result of the Respondent’s unlawful unilateral changes. Such 50
make whole relief shall be computed in accordance with Ogle Protection Service, supra.
JD–04–16
48
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.33
ORDER5
The Respondent, Midwest Terminals of Toledo International, Inc., Toledo, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from10
(a) Discharging, denying pay to, or otherwise discriminating against Otis Brown, Prentis
Hubbard, or any other any employee for engaging in protected union or concerted activity.
(b) Discharging, denying pay to, or otherwise discriminating against Otis Brown, Prentis 15
Hubbard, or any employee for participating in the Board's processes.
(c) Threatening any employee for engaging in protected union or concerted activity,
and/or for participating in the Board’s processes.
20
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
25
(a) Before implementing any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request, bargain with the International
Longshoreman’s Association, Local 1982, AFL-CIO (the Union, the ILA, or the ILA local), as the
exclusive collective-bargaining representative of employees of the bargaining unit described in
the 2006-2010 collective bargaining agreement between the Respondent and the Union. 30
(b) Rescind the unlawful unilateral change that it has made since August 2013 to the
established past practice regarding the ILA unit employees’ participation in the transfer of
aluminum at the facility and restore the status quo ante pending the results of good faith
bargaining.35
(c) Rescind the unlawful unilateral changes it has made since November 2013, by
reassigning calcium unloading work from the ILA unit employees to others outside the unit, and
restore the status quo ante pending the results of good faith bargaining.
40
(d) Rescind the unlawful unilateral change it has made since June 23, 2013, by ceasing
informal crane training for unit employees and restore the status quo ante.
(e) Make the ILA unit employees whole for any loss of earnings and other benefits
suffered as a result of the unlawful unilateral changes.45

33
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–04–16
49
(f) Within 14 days from the date of the Board’s Order, offer Otis Brown full reinstatement
to his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(g) Make Otis Brown whole for any loss of earnings and other benefits suffered as a 5
result of the discrimination against him in the manner set forth in the remedy section of the
decision.
(h) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Otis Brown in writing that 10
this has been done and that the discharge will not be used against him in any way.
(i) Make Prentis Hubbard whole for any loss of earnings and other benefits suffered as a
result of its unlawful denial of wages to him in the manner set forth in the remedy section of the
decision.15
(j) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored 20
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(k) Within 14 days after service by the Region, post at its facility in Toledo, Ohio, copies
of the attached notice marked “Appendix.”34 Copies of the notice, on forms provided by the 25
Regional Director for Region 8, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical 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 the 30
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current 35
employees and former employees employed by the Respondent at any time since June 23,
2013.
(l) 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 40
the Respondent has taken to comply.

34 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–04–16
50
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
5
Dated, Washington, D.C. January 21, 2016
10
PAUL BOGAS
Administrative Law Judge
JD–04–16
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 discharge or otherwise discriminate against Otis Brown, Prentis Hubbard, or any
other employee for engaging in protected union or concerted activity.
WE WILL NOT discharge or otherwise discriminate against Otis Brown, Prentis Hubbard, or any
other employee for participating in the Board's processes.
WE WILL NOT threaten you for engaging in protected union or concerted activity, and/or for
participating in the Board’s processes.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, before making any changes to the wages, hours, or other terms and conditions of
employment of employees in the bargaining unit represented by the International
Longshoreman’s Association, Local 1982, AFL-CIO (the Union, the ILA, or the ILA local), notify
and, on request, bargain with the Union as the exclusive collective bargaining representative of
bargaining unit employees.
WE WILL rescind the unlawful unilateral change that we made since August 2013 by changing
the established practice regarding the participation of ILA unit employees in the transfer of
aluminum at the facility and restore the status quo ante pending the results of good faith
bargaining.
WE WILL rescind the unlawful unilateral change that we made since November 2013 by
reassigning calcium unloading work from the ILA unit employees to others outside the unit and
restore the status quo ante pending the results of good faith bargaining.
WE WILL rescind the unlawful unilateral change we made since June 23, 2013, by ceasing
informal crane training for ILA unit employees.
JD–04–16
WE WILL make you whole for any loss of earnings and other benefits suffered as a result of the
unlawful unilateral changes.
WE WILL, within 14 days from the date of this Order, offer Otis Brown full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Otis Brown whole for any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Otis Brown for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Otis Brown, and WE WILL, within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not be used against him in any way.
WE WILL make Prentis Hubbard whole for any loss of earnings and other benefits suffered as a
result of our discrimination against him.
MIDWEST TERMINALS OF TOLEDO
INTERNATIONAL 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 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.
1240 East 9th Street, Room 1695, Cleveland, OH 44199-2086
(216) 522-3715, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/08-CA-119493 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
JD–04–16
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, (216) 522-3740.