Midwest Terminals of Toledo International, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 19, 2016

08-CA-152192 (N.L.R.B. Sep. 19, 2016)

JD–89–16
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-152192
LOCAL 1982, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
Gina Fraternali, ESQ., and Noah Fowle, ESQ.,
for the General Counsel.
Ronald L. Mason ESQ., and Aaron T. Tulencik, ESQ.,
of Dublin, Ohio for the Respondent.
Otis Brown, President of Local 1982
of Toledo, Ohio for the Charging Party.
DECISION
STATEMENT OF THE CASE
Eric M. Fine, Administrative Law Judge. This case was tried in Bowling Green, Ohio on
December 3 and 4, 2015, and completed in Fostoria, Ohio on January 20, 2016. Local 1982,
International Longshoremen’s Association, AFL-CIO (the Union or Local 1982) filed the charge
on May 14, 2015, and the first amended charge on July 28, 2015 against Midwest Terminals of
Toledo International, Inc. (Respondent).1 The General Counsel issued the complaint on August
28, alleging Respondent violated Section 8(a)(5) and (1) of the Act by since March 1: unilaterally
changing certain specified items it Policy Handbook; unilaterally promulgating and implementing
certain specified policies in its 2015-2016 Safety Handbook; and unilaterally promulgating and
implementing a 2015-2016 ILA Standard Operating Procedures policy. The complaint also
alleges that Respondent has violated Section 8(a)(1) of the Act by maintaining certain specified
policies and/or work rules in its 2015-2016 Policy Handbook and in its 2015-2016 Safety
Handbook which interfere with, restrain and coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act.
On the entire record, including my observation of witnesses’ demeanor, and after
considering the briefs filed by the General Counsel and Respondent, I make the following:2

1 All dates are 2015 unless otherwise indicated.
2 In making the findings, I have considered demeanor of the witnesses, the content of their
testimony, and the inherent probabilities of the record as a whole. In certain instances, I have
credited some but not all of what a witness said. See NLRB v. Universal Camera Corporation,
179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951).
JD–89–16
2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, provides stevedoring services at its facility on St. Lawrence 5
Drive in Toledo, Ohio (Respondent’s facility) to shipping companies that are engaged in
interstate and foreign commerce. From these activities, Respondent derives annual gross
revenues in excess of $500,000. Respondent admits and I find it is an employer engaged in
commerce under Section 2(2), (6), and (7) of the Act and the Union is a labor organization
under Section 2(5) of the Act.10
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
15
1. Prior NLRB Litigation
In Teamsters Local 20 (Midwest Terminals of Toledo International, Inc.), 359 NLRB 983
(2013), the Board resolved a work jurisdiction dispute between Local 1982 and Teamsters Local
20 pertaining to Respondent. There, the Respondent took the position that the work in dispute 20
should be assigned to the Teamsters. The Board in essence divided the contested work
between the two competing unions based on the way it had been historically been performed by
the employees represented by each union. The Board did not alter the collective-bargaining
unit description of either unit. I raise this point because Respondent through counsel at the
hearing argued that this decision somehow altered Local 1982’s bargaining unit to something 25
different then that alleged in the current complaint, and therefore Respondent refused to admit
the alleged unit. There was to be an explanation of this argument in Respondent’s post-hearing
brief which never surfaced in the brief. Given the testimony of Local 1982 officials Brown and
Hubbard, as well as the testimony of Respondent Human Resources Manager Christopher
Blakely that the unit description in the parties’ most recent collective-bargaining agreement is 30
accurate, I find the unit alleged in the complaint is accurate and appropriate as acknowledged
by officials of both Local 1982 and the Respondent.
The Board issued a decision in Midwest Terminals of Toledo International, 362 NLRB
No. 57 (2015). In its decision, the Board affirmed the judge’s finding that Respondent violated 35
Section 8(a)(3) and (1) of the Act by failing to assign work to Otis Brown in June, July, and
August 2008, and by refusing to assign him light duty work from November 28 to December 2,
2008. It was also found that on April 24, 2009, by then Vice President of Operations Tim Jones
violated Section 8(a)(1) of the Act by telling an employee Respondent would not hire other
employees because they had filed grievances and unfair labor practice charges. It was found 40
that by memo issued by Blakely on August 19, 2011, that Blakely violated Section 8(a)(1) of the
Act by threatening an employee with discipline including termination because the employee had
filed grievances. The Board found that on September 28, 2012, Director of Operations Terry
Leach violated Section 8(a)(1) of the Act by informing an employee he lost overtime because of
the Union. The Board found that on November 12, 2012, Respondent by Leach violated 45
Section 8(a)(1) of the Act by threatening to remove a union steward from the job, or discharge
him, and grabbing the employee. The Board also found that Respondent violated Section
8(a)(5) and (1) of the Act when it ceased dues checkoff on January 1, 2013.
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The decision in Midwest Terminals, cited directly above, gave a history of trusteeship of
Local 1982 beginning in 2010, and stated thereafter in August 2012, Otis Brown was elected
president of Local 1982. One of the allegations in this Midwest Terminals decision was whether
Respondent violated Section 8(a)(5) and (1) of the Act by refusing to implement an agreed upon
collect-bargaining agreement with Local 1982, the agreement upon which allegedly took place 5
on December 8, 2011. There, as affirmed by the Board, the judge dismissed this allegation
finding there was no meeting of the minds as to a CBA between Respondent and Local 1982
because Local 1982 sought to grieve a health and welfare provision in the new alleged local
agreement as a violation of the ILA master agreement at the same time it purportedly agreed to
the provision in the Local agreement. It was noted at footnote 17 in the judge’s decision that on 10
December 9, union official Joseph presented Blakely with a flash drive containing a draft CBA
and “the employee handbook.” This aspect of the Board’s decision is mentioned because the
bargaining history pertaining to employee handbooks is an issue in the current case.
On January 21, 2016, Judge Paul Bogas in case JD-04-16, issued the first of two 15
decisions involving Respondent. In this decision, the judge found that in August 2013,
Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing established past
practice regarding the transfer of aluminum at the facility in a manner that deprived Local 1982
unit members of loading working they had theretofore performed. It was found that since
November 2013, Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally 20
reassigning calcium unloading work historically performed by Local 1982 unit members to
others outside the unit. It was found that Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally ceasing informal crane training for unit employees after June 23, 2013. It was
found that Blakely violated Section 8(a)(1) of the Act by telling Prentis Hubbard, the union vice-
president and steward, on August 12, 2013, that Blakely had not been able to work on 25
Hubbard’s workmen’s compensation claim because Blakely was too busy working on
grievances and unfair labor practice charges filed by Hubbard. It was found that Respondent
discriminated against Hubbard on August 11, 2013, in violation of Section 8(a)(4), 8(a)(3), and
8(a)(1) of the Act by denying him pay for the hours he would have worked on that date if he had
not left work due to a work related injury; and that Respondent also violated Section 8(a)(5) of 30
the Act by denying Hubbard that pay. It was found that Respondent through Leach violated
Section 8(a)(4), 8(a)(3) and 8(a)(1) of the Act when it discharged Brown on October 1, 2013. It
was noted that Brown was elected Local 1982 president when it emerged from trusteeship in
July 2012, and that he continued to hold that position. That during that time, Brown served as
the Union’s chief contract negotiator, chairman of the safety committee, and that he served as 35
representative of the Union at an unfair labor practice trial in June and August 2013.
On April 19, 2016, Judge Bogas issued a second decision in case JD-33-16 involving
Respondent and Local 1982. In the decision, it was found that Respondent violated Section
8(a)(5) and (1) of the Act in April 2014, by departing from the placement criteria set forth in the 40
CBA in terms of selection of employees to be placed on the skilled list, which impacts on the
selection of employees for work assignments; and Respondent was also found to have violated
the same sections of the Act by changing its practice in April 2014 by its failure to seek prior
input from the Union or providing the Union advanced notice of its filling of vacancies on the
skilled list. Respondent was also found to have violated Section 8(a)(3) and (1) of the Act by its 45
failure to place employee F. Victorian on the skilled list in April 2014.
50
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2. The Current Case
Terry Leach is employed by Respondent as director of operations, a position he has held
since 2007. Leach testified that he reports to the Respondent President Alex Johnson who 5
works at Respondent’s corporate office. Leach testified Local 1982 represents the
longshoremen working at Respondent’s facility. Leach testified that for the Local 1982
represented employees there is a skilled group who come in every day consisting of 9
employees. Then there are 20 or more employees who come to work depending on the number
of vessels in port. 10
Christopher Blakely, whose title is human resource manager, reports to Leach. Blakely
has held this position with Respondent since May 2010. Blakely testified Respondent took over
the facility in October 2004, and Local 1982 was the collective bargaining representative for
certain employees at that time. Blakely testified Respondent is a marine cargo dock. He 15
testified there is a street running through the middle of the facility called St. Lawrence Drive, and
on the water side of the facility is a stevedoring operation where cargo comes in by vessel, and
is unloaded. He explained that cargo can also go out. Blakely testified that on the dry side of
the facility employees represented by the Teamsters load and unload product from rail and
truck. Blakely testified, based on prior his prior employment, he is a lifetime member of the 20
National Education Association, Ohio Education Association, Northwest Ohio Education
Association. Blakely testified he was a union officer at Maumee City Schools for 25 years,
president elect, and president. He testified, as union president in the school system he served
as the chief negotiator for three 3 year contracts.
25
a. Contract Negotiations and the Union’s Handbook proposals
Leach testified he participates in collective bargaining negotiations with the Union and he
has been doing so since at least 2010. Leach testified representing Respondent in negotiations
also are Blakely and counsel Tulencik and Mason. At the time of the trial, the most recent 30
collective-bargaining complete agreement (CBA) between the parties had effective dates of
January 1, 2006 to December 31, 2010. There was a representation at the hearing that the
parties were continuing to abide by the expired CBA, although Local 1982 President Otis Brown
testified Respondent was refusing to allow cases to go to arbitration under that agreement.
Leach testified that between 2010 and 2012, union trustees were negotiating on behalf of Local 35
1982 for a new CBA. Leach estimated there were about eight or nine negotiation sessions with
the trustees. He testified proposals were made during those meetings and to his recollection he
attended every negotiation session with the trustees.
Andre Joseph testified he works for the Atlantic Coast District of the International 40
Longshoremen's Association as one of the vice presidents of the Great Lakes Area and he is
held that position since December 2007. Joseph testified he became involved in contract
negotiations with Respondent on behalf of Local 1982 because Local 1982 was put in
trusteeship around 2010. Joseph was appointed as a co-trustee in September 2011. Joseph
testified he participated in the negotiations on behalf of Local 1982 beginning in September 45
2011, when he learned negotiations had not started for a new CBA. Joseph named John Baker,
Jr., as another appointed trustee for Local 1982. Joseph testified that when he began
negotiations with Respondent the parties were following the terms of the expired 2006 to 2010
local contract. Joseph testified that Joseph, Baker, and union steward Miguel Rizo, Sr., were on
JD–89–16
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the Union’s negotiating committee. Joseph testified Leach and Blakely were on the
Respondent’s negotiating committee.
Joseph estimated that he attended over 10 bargaining sessions during the trusteeship.
He testified the Union provided proposals to Respondent including a proposed employee 5
handbook policy for which Joseph did the drafting. He testified he provided both Leach and
Blakely copies of the proposed handbook drafts as they went along. Joseph testified most of
the handbook was language contained in the expired CBA which Joseph removed and placed
into a handbook. Joseph testified it was his view placing this language in a handbook would
allow more flexibility for change whereas if the language remained in the CBA it would have to 10
be voted on by the Union’s membership for approval to open the CBA in order to change the
wording. He testified the handbook would have been a signed document between the parties,
but it would still be flexible enough to address any changes in law for certification, training,
hours and types of jobs.
15
Joseph identified a document entitled “ILA Local 1982 Employee Handbook.” It states it
was compiled on December 1, 2011. Joseph testified the document was provided to Leach and
Blakely. It contains listings of color codes for Union and Employer inserts. It includes sections
entitled: Referral and Seniority List, Skilled Employees, Regular Employees, Casual Employees,
Employment Procedures, Seniority, Attendance, Pay Period/Payday, Medical Insurance, 20
Pension Benefit, Drug and Alcohol, and Standard Operating Procedures. Joseph identified a
second draft of the proposed Employee Handbook compiled on December 8, 2011 containing
the same or similar headings. He testified he thought this was the last draft both parties agreed
to, and then it was prepared for the next meeting. Joseph testified he did not have the sign in
sheets for December 8 or 9 meetings, but if Leach was there the document would have been 25
provided to him. Joseph testified the proposal was provided to Blakely. Joseph testified he
provided the proposals in person at the bargaining table.
Joseph testified his last day as a trustee was either in late July or August 2012. When
asked if at the end of the trusteeship if the parties had reached a new collective bargaining 30
agreement between Respondent and Local 1982, Joseph testified he thought the Union’s
position was they had a complete tentative agreement on both the employee handbook and a
new CBA. Joseph testified he attended an NLRB trial as to whether Respondent had reached a
contract with the Union as of December 9, 2011. Joseph testified he stated in a pre-hearing
affidavit dated April 3, 2012, that the parties had reached agreement on all items on December 35
9, 2011 for a new CBA except for the issue in CBA paragraph 17 because it was the Union’s
position that this provision in the tentative local agreement conflicted with the national
agreement. Joseph testified that his reference to paragraph 17, in his affidavit should have
been a reference to paragraph 18 in the local agreement. As set forth above, the Board in
Teamsters Local 20 (Midwest Terminals of Toledo International, Inc.), 359 NLRB 983 (2013), 40
found the parties did not reach agreement on a new CBA in 2011, because as found by the
judge there was no meeting of the minds pertaining to article 18, and therefore no meeting of
the minds on a complete contract.
Blakely testified he participated in contract negotiations on behalf of Respondent. 45
Concerning negotiations in the fall of 2011, Blakely testified Joseph had an employee handbook
that Blakely thought came from Burns Harbor. Blakely testified Joseph, who was a trustee at
the time, had his main base is Burns Harbor, a port opposite Chicago, and Joseph had a
handbook showing what they did at that port. Blakely testified that to his recollection the
document mirrored a lot of things in the parties’ expired contract. When asked if it had work 50
JD–89–16
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rules in it, Blakely testified “I don't think it had work rules. It had definitions, and it had parts of
the contract.” Blakely testified to his recollection concerning the document, “was that it went
through a lot of the things like the hiring practice and that, and then there were things like job
descriptions -- a lot of it came from the master agreement -- job descriptions of like what is a
power operator, what is a forklift operator. So there was that, and then there was a lot of 5
duplication of things that were in this contract.”
Blakely identified the sign in sheet for the October 6, 2011 negotiation session between
the parties. He testified that present were Blakely, Leach for Respondent and for the Union
were then acting steward Miguel Rizo, Sr., and trustees Baker, and Joseph. The sign in sheet 10
contains attached typewritten notes from the session. Blakely testified the notes were taken by
his daughter who was Respondent’s note taker during the Fall of 2011 negotiation sessions.
Blakely testified that in the notes Blakely is referred to as C; T for Leach, and A for Joseph.
Blakely testified the notes are an accurate reflection of what was stated at the meeting.
Beginning the first page of the typewritten notes it states that Joseph stated:15
A: wouldn’t be such a big contract if we set a work rules were at 35 pages that has work
rules in it
C: work rules progressive discipline policies more naturally would be an addendum,
A: handbook signed by both parties20
T: both ports have handbooks3
The minutes reflect that Joseph stated, “call out procedures, can be put in handbook”. There
was further discussion of an employee handbook incorporated in the minutes. Blakely testified
that there were multiple versions of an employee handbook proposal. He testified, “Joseph's 25
practice was when he presented his contract, what they were looking for, he typically, I'm not
going to say every time, would provide a copy of -- of his handbook.”
Blakely testified he received a document entitled, “ILA Local 1982 Employee Handbook”
from the Union with the statement on the cover page that it was “Compiled December 1, 2011” 30
during negotiations. When asked if it had work rules in it, Blakely testified, “The document has a
duplication of things that are in the contract explained in different language. It has -- at the back
it has definitions of terms. It has things about medical insurance. It has things about sexual
harassment and that.” When it was pointed out that the document had a section entitled, “Rules
and Regulations Accident Policy,” Blakely testified, “yeah, it's got like a progressive discipline 35
policy and what to do if there is an injury. It's got the master agreement drug and alcohol plan,
but that was in the master agreement. It's copied verbatim here. Then it has a lot of things that
are in the master agreement in terms of definitions of terms, like what the duties are for an end
loader operator and, you know, somebody that runs a conveyor and so forth and so on. So, you
know, it's a handbook that they wanted to give to the employees, and Mr. Andre Joseph, this is 40
what they do in Burns Harbor.” When asked if he would consider any of these things work
rules, Blakely testified, “Well, the actual contract, the last two pages of the contract has the work
rules which are negotiated between the union and the employer, I mean, there is no doubt, but
those go back into the 1990s, and those are actually called work rules.” Blakely testified the
proposed handbook did not have the work rules from the contract. Leach testified that his 45

3 The General Counsel offered G.C. Exh. L into evidence on January 20, 2016. At the time,
Respondent’s counsel stated there was no objection to its admission. However, the
undersigned inadvertently failed to state it was admitted. I am correcting that oversight in this
decision by admitting G.C. Exh. L into evidence.
JD–89–16
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general role in negotiations was understanding the dock operations and what needs to take
place. Leach testified that it was not his function to present proposals, rather that was Blakely’s
function. When asked if during the negotiations Joseph presented the employer with employee
handbook proposals, Leach testified that, “I don’t recall.”
5
Joseph testified that, subsequent to the trusteeship, Otis Brown became the president of
Local 1982. Joseph testified Prentis Hubbard was vice president and he is currently also filling
in the position of secretary-treasurer. Joseph testified he has been involved in the negotiations
for a new agreement with Respondent from 2012 to the present. Joseph testified from 2012 to
the present the Union has not requested bargaining over the handbooks. Joseph testified in 10
explanation, “We haven't even gotten to our proposals.” He testified the Union from 2012 to the
present has not proposed any change in the employee handbooks stating, “We haven't had the
opportunity yet.” Joseph testified that during that time the Union made a proposal which was
primarily the 2010 local agreement. He testified “And when we first got their proposal, it was a
bunch of deletions, and it came from whatever, 30-some pages down to 12 maybe. I'm talking 15
about in January – in February of 2012 or 2013. Joseph testified, “They had like three or four
meetings, I believe three with the employer and the local officers, and then I was called in to ask
-- to assist them in their new endeavor of the contract, and that's what we started doing. But we
– we haven't gotten -- except for the one meeting where we gave copies of what we'd like to
see, everything has been the employer telling us what they want deleted. I mean, it's gutting 20
the contract as we know it today.”
Brown testified he became president of Local 1982 on August 7, 2012. Brown testified
that since that time he has been, and is still involved in negotiations as president of the local.
Brown testified he has been representing the union in all contract negotiations. Brown testified 25
that, during this time, the Union has never in negotiations asked to bargain about changes
Respondent has made annually to the handbooks. Brown estimated that he has attended over
24 negotiation sessions. Brown testified “We started negotiating, I believe, in October of 2012,
and we're ongoing even as of right now. We're still in negotiations.” He testified, “We haven't
really gotten anywhere yet in almost three years.” Brown testified that since 2012 when he took 30
office to the time of his testimony the Union had not proposed a policy handbook. Brown
explained that, although they had been in negotiations for 3 years, they were having a difficult
time reaching a contract. Brown testified there was an understanding to negotiate different
parts of the contract in stages. Brown testified they agreed to postpone negotiations on
economics to a later time, and then at some point in time after completing negotiations on 35
economics they would get to negotiations on handbook policies, work rules, and safety rules
which the Union wanted to take out of the contract and place in a handbook. Brown testified the
Union cannot present Respondent with a handbook proposal right now. Brown testified, “we
haven't been able to settle upon the first part of our negotiations. These things are done in part,
and I was hoping that we could get this done, but it's been very difficult. So, again, to give them 40
physically an entire document, no, but we have negotiated in part.”
b. Respondent’s Mandatory Annual March meetings
Brown worked for Respondent from October 2000 or 2001 until October 1, 2013, when 45
Brown was discharged. The Board issued a decision in Midwest Terminals of Toledo
International, 362 NLRB No. 57 (2015). In its decision, the Board affirmed the judge’s finding
that Respondent violated Section 8(a)(3) and (1) of the Act by failing to assign work to Brown in
June, July, and August 2008, and by refusing to assign him light duty work from November 28 to
December 2, 2008. In a subsequent judge’s decision issued on January 21, 2016, It was found 50
JD–89–16
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that Respondent through Leach violated Section 8(a)(4), 8(a)(3) and 8(a)(1) of the Act when it
discharged Brown on October 1, 2013. It was noted that Brown was elected Local 1982
president when it emerged from trusteeship in August 2012, and that he continued to hold that
position. That during that time, Brown served as the Union’s chief contract negotiator, chairman
of the safety committee, and he served as representative of the Union at an unfair labor practice 5
trial in June and August 2013.
Brown testified, during the current trial, that Hubbard is the vice president of the Union.
Brown testified Fred Victorian, Jr., now deceased, was a steward in March 2014. Hubbard
testified he has worked for Respondent since April 2006. At the time of his testimony, Hubbard 10
was vice president of the Union, the dock steward and the financial secretary. Hubbard testified
he is a member of the safety committee. Hubbard testified that prior to the trusteeship he held
no union office. Hubbard testified he joined the union negotiating committee in October 2012.
Hubbard testified that since October 2012 through the time of the hearing he has attended
numerous negotiation sessions, as well as Local 1982 President Brown. In the aforementioned 15
judge’s decision issued on January 21, 2016, the judge found that Blakely violated Section
8(a)(1) of the Act by telling Hubbard, on August 12, 2013, that Blakely had not been able to
work on Hubbard’s workmen’s compensation claim because Blakely was too busy working on
grievances and unfair labor practice charges filed by Hubbard. It was found that Respondent
discriminated against Hubbard on August 11, 2013, in violation of Section 8(a)(4), 8(a)(3), and 20
8(a)(1) of the Act by denying him pay for the hours he would have worked on that date if he had
not left work due to a work related injury; and that Respondent also violated Section 8(a)(5) of
the Act by denying Hubbard that pay. Both Brown and Hubbard testified that Juan Rizo is a
member of the Union, but that he has never been elected or appointed to union office. They
testified Juan Rizo has never been authorized to represent the Union. 425
Brown testified Respondent conducts a mandatory annual safety meeting for employees
in March of each year. Hubbard testified employees are required to attend the safety meeting
prior to being allowed to work for the upcoming shipping season. He testified Respondent holds
makeup meetings for employees who miss the meeting. Hubbard testified he was not able to 30
attend the mandatory 2014 meeting, but he did attend a makeup meeting. Blakely similarly
testified that Respondent conducts preseason training. He testified Respondent participates in
a drug-free safety program run through the Bureau of Workmen’s Compensation. Blakely
testified once the employee completes the training they have to go for a preseason drug test.
Blakely testified, that during the preseason training, Respondent also reviews what is happening35
in the coming season, and Respondent hands out and reviews policy handbooks.
Blakely identified a letter dated February 11, 2011, labeled “Mandatory Drug Safety
Workplace Training.” The letter stated the annual mandatory Drug Safety Workplace training
was set for February 25, 2011. Blakely testified the letter is sent out to employees informing 40
them of the annual mandatory meeting. A subsequent letter issued to employees notifying them
that the training was rescheduled to March 18, 2011. Blakely identified the sign in sheets for the
March 18, 2011 meeting, which stated “By signing this sheet you acknowledge receipt of
MWTTI Policy Packet (MWTTI Drug Policy, Cell Phone Policy, Equipment Policies, Violence in
the Workplace Policy, Shape-Up Hiring, Grievance turn in). He testified these policies were 45
distributed at the March 18 meeting. Blakely testified the company did not bargain with the

4 Juan Rizo is referred to in this decision by his full name, because there was another
individual named Rizo mentioned in the transcript.
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Union over the policies listed at the bottom of the page on the sign in sheets. Blakely testified
that no one from the Union requested to bargain over those rules.
Blakely identified a letter to employees dated March 2, 2012, announcing the annual
“Mandatory Drug-Free Safety Program Training” was to be held on March 16, 2012. Blakely 5
identified the sign in sheets for attendance at the March 16 meeting which state, “By signing this
sheet, you acknowledge receipt of MWTTI Policy Handbook, MWTTI Safety Handbook and
paperwork for the pre-season drug screen to be completed on or before March 23, 2012.”
Blakely testified the Policy Handbook and the Safety Handbook were distributed to employees
at the meeting. He testified, “We were in the hallway, and then people signed in, and then, you 10
know, I handed them documents, and they went into the … auditorium.” Blakely testified he did
not bargain with the Union over the Policy Handbook and the Safety Handbook listed at the
bottom of that sign in sheet. Blakely testified that no one from the Union requested to bargain
over the handbooks. Blakely testified that during his tenure these were the first formal
handbooks distributed by Respondent. Blakely testified Respondent contracted with a Joe 15
Mlynek, a nationally recognized certified safety provider and occupational health and safety
technologist. Blakely testified that it was Blakely who wrote the handbooks with Mlynek’s
assistance. Blakely identified the 2012 policy and safety handbooks which he testified were
distributed at the meeting. Blakely testified that to his knowledge, during the 2012 season and
prior to the 2013 season, no one from the Union requested to bargain over the over the 2012 20
policy and safety handbooks.
Blakely testified the policy and safety handbooks first came into existence in 2012.
Blakely testified that between the 2009 to 2012 shipping seasons, there was no formal policy
handbook or safety handbook in effect. Rather, during that time, there were just individual 25
policy pages. Blakely testified that Respondent hired the outside consultant to create handbook
policies at least a year prior to the 2012 safety meeting. He testified that at no time did he notify
the Union that he was drafting new handbook policies. Blakely testified this was despite the
Union and Respondent being in ongoing contract negotiations. Blakely identified certain
individual Respondent policies which existed but were not in handbooks prior to 2012. Blakely 30
testified the Work Rules acknowledgement and page entitled “Exhibit C, ILA Local 1982 Local
Work Rules (2/23/06)” are the work rules that are attached to the CBA. Blakely testified it was
his understanding those rules had been bargained over with the Union. Blakely testified that
excluding those work rules the remainder of the identified polices were not attached to the
contract. These policies are entitled: “Use of Confidential Information by Employees;” “Drug 35
Free Safety Policy March 23, 2007;” “Authorization For Release Of Information;” “Non-
Disclosure/Confidentiality Policy,” dated February 23, 2009; “Cell Phone Use Policy,” dated
February 27, 2009; “Nepotism Policy,” dated March 31, 2009; “Vehicle and Equipment Misuse
and Abuse Program,” dated March 20, 2010. Blakely testified that some of these policies were
included in the 2012 policy handbooks distributed by Respondent. Blakely testified that during 40
his time at Respondent he has not bargained with the Union over the policies listed in the safety
handbook and the policy handbook, nor has anyone from the Union requested to bargain over
those policies.
However, when Blakely initially testified concerning the 2012 annual meeting on 611-c 45
exam by counsel for the General Counsel his memory was not as clear. At that time, Blakely
testified he thought he attended the 2012 March annual safety meeting. When asked if Brown
spoke to Blakely about the handbooks prior to the meeting, Blakely testified, “I do not recall that
he did.” In explaining his answer, Blakely testified, Blakely testified, these things kind of run
together, okay? So I do know I believe it was the 2012 meeting…”. Blakely testified when he 50
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attends the safety meetings he arrives early, and lays out the documents and that is “pretty
much what I'm doing up until the time the meeting starts is I'm making sure people get the
documents, I'm making sure people sign in, so I -- it's highly unlikely that I had a conversation
with someone given those circumstances, and that's been my practice since 2011.” Blakely
testified “I believe it was 2012, in that meeting when Otis Brown stood up and started asking all 5
kinds of questions about how I handle random drug testing. That I do remember, and I believe
that was 2012. But, I mean, you know, memory is memory, and I'm going to say -- I'm not
going to say categorically that didn't happen. But given what I have to do prior to the beginning
of these meetings, it's just not conducive to having a conversation with someone because I
need to make sure that everybody signs the thing, because people are paid for the meeting, and 10
that they, you know, get what they need, and if they have an address change, I have to explain
this to them and so forth and so on. So based upon that I would say, no, it didn't happen.”
Brown testified he became president of the Union in August 2012, and he was not the
president at the time of the March 2012 safety meeting. However, Brown testified he did have a 15
conversation with Leach and Blakely in 2012 at the safety meeting. Brown explained he spoke
to Blakely and Leach in 2012, “Because the trustees were not there, and they had informed us
that the company had not presented the documents and they had not reviewed the documents
also and stuff and told us not to sign them. They told us to not sign it or sign it under protest.”
Brown testified he did not have any position with the Union in the spring of 2012. Brown 20
testified he attended the 2012 annual March safety meeting, but did not attend the meetings
held since that time.
Blakely identified a letter to employees dated March 1, 2013, announcing the “Mandatory
Drug-Free Safety Program Training was to take place on March 15, 2013. He identified the sign 25
in sheets for the meeting which stated, “By signing this sheet, you acknowledge receipt of
paperwork for the pre-season drug screen to be completed on or before March 22, 2013.”
Blakely testified there was not a new handbook distributed in the 2013 meeting. He testified the
2012 handbook was in effect during the 2013 shipping season. Blakely testified that handbook
was not distributed during the 2013 meeting. Blakely testified he could not recall whether 30
employees were explicitly told the 2012 policy handbook was in effect for 2013. However
Blakely testified that during that meeting they referenced the policies in the 2012 handbook. He
testified Respondent did not give employees anything to make them think that anything had
changed. Leach testified he attended the 2013 mandatory safety meeting. When asked if at
that meeting, Prentis Hubbard, the union vice president, objected to the implementation of the 35
handbook policies at that meeting, Leach testified, “I don't even know if he was around. I don't
think he was union steward. I think it was Fred at the time, Victorian, that is.”
Hubbard testified that he attended the mandatory safety meeting in 2013. He testified
when the employees first arrive at the annual safety meeting they sign in to allow them to get 40
paid for attending. He testified they also have to sign to receive Respondent’s handbooks.
Hubbard testified Respondent passed out new handbooks in the 2013 and 2015 safety
meetings. Hubbard testified that prior to signing in at the 2013 meeting, Hubbard had a
conversation with Leach. Hubbard testified that, “I told him that due to the fact that the
Company didn’t come and bargain with the Union about the safety rules like they did prior, that 45
we’re going to have -- I’m going to have to have the men sign them in protest.” Hubbard
testified, at the time, Hubbard was vice president of the Union and a steward. Hubbard testified
Leach told him he had to do what he had to do. Hubbard testified that after he made the
statement to Leach, that Leach explained the handbooks to the assembled employees.
Hubbard testified that after Leach explained the policies, Hubbard told the members what 50
JD–89–16
11
Hubbard had previously told Leach that the Union did not receive a copy of this, that they did
not sit down and go over it with Respondent so the Union did not agree to it and “we were going
to sign in protest.” Hubbard testified that Leach was present when Hubbard made the
statement. Hubbard testified he thought Blakely was also in attendance at the time.5

5 Brown initially testified he attended the annual safety meeting held in March 2013, but later
on cross-examination he recanted this testimony and stated he was mistaken and it was the
March 2012 meeting he attended, not the 2013 meeting. In his initial testimony concerning the
March 2013 meeting, Brown went into some detail as to what transpired there. Brown
described the procedure in the 2013 meeting as when employees walked in the door they saw a
table containing different sheets for signatures. One was for showing employees’ attendance,
and there were separate sheets to sign for receipt of the policy and safety handbook. Brown
testified he thought there were four signature sheets. Brown testified the procedure at this
meeting was different from before. Brown testified that during the 2013 meeting he spoke to
Leach briefly about the handbook policies he received at the meeting, and he spoke to Blakely
in more detail. Brown testified he told Leach that Brown’s concern was the employees were
signing for receipt of things before they received them, and Brown noticed that was a change
from when he had become the president. Brown testified he also spoke about the Union not
receiving prior copies of the documents for its review. Brown testified, “at that point it was clear
there was going to be no way we were going to stop it and postpone this, so I left the
conversation at that.” Brown testified Leach told Brown they would review the policies with the
employees at the meeting. Brown testified he then made the decision upon speaking to
Hubbard and the Union’s trustees that they were going to sign the documents under protest.
Brown testified, “So basically that's when we got started at the meeting, I informed the guys that
we were going to sign it under protest.” Brown testified, “If we could get around signing, not to
sign, and if we had to sign, we would sign it under protest, and I believe I did manage to skip
signing the documents all together or maybe one or two.” Brown testified he also talked to
Blakely. He testified “When I spoke to Mr. Blakely, I told Mr. Blakely this setup was done
before, and you're asking us to sign for something before we even reviewed it.” Brown testified
Blakely told Brown that he should talk to Leach.
Brown testified that, as per Brown’s instructions, Hubbard spoke to the employees during the
2013 meeting. Brown testified Hubbard made the announcement to members that the Union
had not met with the Company to review the documents and the Union was not approving them,
and they were going to sign under protest. Brown testified, “I know for sure Mr. Leach was in
there. Mr. Blakely had stepped out a few times, but Mr. Leach was in there. I can attest that he
was in there.” Brown testified Blakely was in the meeting for the most part but at times he
stepped out. Brown testified the Union did not receive the 2013 shipping season handbook
prior to the March 2013 safety meeting.
However, after some repeated questioning on cross-exam when asked if he had a
conversation with Leach and Blakely at the 2013 meeting, Brown testified, “Honestly, I talked to
-- I know I was on the phone with Mr. Hubbard, and I instructed him to give the speech, now that
he jogged my memory, …”. Brown then testified that he did not think he attended the March
2013 meeting. He testified he instructed Hubbard to make an announcement at the meeting,
but he gave Hubbard this instruction over the phone. Brown testified concerning the 2013
meeting, “I don't believe so at that meeting. I believe I was confused about the 2012 meeting,
and I would have to stay with that.” Brown was then shown the attendance sheet for the March
15, 2013 meeting, and he testified he did not sign in for attending the meeting. Brown was
marked on the sheet as a no show for the meeting, although Hubbard had signed in. Brown,
upon seeing the attendance sheet for the March 15, 2013 meeting, then testified to a certainty
that he did not attend.
JD–89–16
12
Christopher Bates was working for Respondent at the time of his testimony and had
been employed there since 2007. Bates testified he is a member of the Union, but he has never
been a union official. Bates testified he attended Respondent’s March 2013 mandatory safety
meeting. Bates testified Hubbard spoke at the meeting. Bates testified Hubbard stood up and 5
stated that, “we as a Union did not go over the safety handbook,” that “we had to sign like a
paper, and he was stating that we didn't go over it, so we we’re signing under duress.” Bates
testified Hubbard was referring to Respondent’s acknowledgement form for the handbook. He
testified that Hubbard was saying, “we were agreeing to it, but it was signed under duress.”
Cleophas Fisher, Jr. was employed by Respondent since 2009, at the time of his testimony. 10
Fisher has never held union office. Fisher testified he attended the March 2013 mandatory
safety meeting. He testified Hubbard spoke at the meeting. Fisher testified that after they
explained all the forms and rules, Hubbard stood up and said, “you had to sign a paper, but you
can protest. You can write protest on it.” When asked to state what Hubbard said was the
reason he was instructing people to write protest on the paper, Fisher testified, “I don’t recall.” 15
Respondent’s attendance records for the 2013 meeting reflect that Hubbard had signed
in, but have Bates and Fisher listed as “No Show”.
Blakely testified Respondent conducted a preseason meeting in March 2014, which took
place on March 22. Blakely testified Respondent presented employees with new handbooks 20
during the meeting. Blakely identified the 2014–2015 Policy Handbook and the 2014-2015
Safety Handbook, which he testified were distributed to employees at the March 22 preseason
training meeting. Blakely testified he did not bargain with the Union concerning the handbooks,
and that to his knowledge no one from the Union requested bargaining over the handbooks.
Blakely testified the new handbooks were distributed because there were some policies added 25
between 2012 and 2014. He testified he had attended Department of Labor training sessions
for HR managers and in the sessions the DOL representative said Respondent should have
policies on record retention. That is the company’s policy on how long they keep personnel files
to make sure they are in compliance with the law. He testified that you should have a policy that
stipulates where the records are kept to protect things like HIPAA. He testified there also 30
should be a safe harbor policy concerning what occurs if someone sees a mistake in their
paycheck. Blakely testified that he might be missing a couple of the changes but mainly the
changes related to what he learned by attending the DOL conference. He testified that after he
distributed the handbooks no one from the Union requested to bargain over the changes. When
asked if prior to that meeting if he sent a copy of the safety handbook policy or the policy 35
handbook to the Union, Blakely testified, “I probably did not.” Blakely testified the day of the
meeting, when everyone shows up, he gave out the documents at that time before the meeting
started. Blakely testified that he attended the Department of Labor meeting in 2013 and at no
time did he notify the Union that Respondent was going to add policies to the handbooks.6
40
Leach, pertaining to the 2014 shipping season safety meeting, was asked if union
steward Fred Victorian, Jr., objected to the employer's unilateral implementation of the
handbooks. Leach testified, “As I recall, Fred did come to me and say that we're going to object
and protest and we're not going to sign anything because he was informed by Mr. Otis not to

6 Respondent in its brief asserts that in 2014, Respondent made changes to the following
policies: Progressive Disciplinary Policy #2000, Personnel File Access Policy #2900, Equipment
and Vehicle Policy #3000, Technology Policy #3500, ILA Local 1982 Hiring Policy #4100 and
Safe Workplace Environment Policy #4500; and that Respondent added two new policies;
Employee Pay Practice Policy #2050 and Employee Record Policy #2925.
JD–89–16
13
sign anything.” Leach testified Victorian, who had passed away prior to the trial, was a union
steward at the time of the 2014 meeting. When asked who Don Russell was, Leach testified,
“He was another ILA union employee.” When asked if Russell was a union steward, Leach
testified, “Like I said, there is a lot of them. Whatever day they appointed one, that was their job
for the day.”7 When asked if Russell spoke up during the 2014 safety meeting objecting to the 5
Respondent’s unilateral implementation of the policies, Leach testified, “Yeah. He came into the
room and said I'm not signing shit.”
Brown and Hubbard testified they did not attend Respondent’s annual safety meeting in
March 2014. Brown testified that Respondent did not give the Union notice concerning any 10
manuals that they were going to hand out during this meeting. He testified the Union did not
receive the 2014 shipping season handbook prior to the March 2014 mandatory safety meeting.
Brown filed an unfair labor practice charge on September 18, 2014 in case 8-CA-137044 on
behalf of the Union alleging, in part, that since March 22, 2014, the Employer “failed to notify the
Union regarding the scheduling of a safety/drug meeting; disseminated policy changes without 15
notifying or bargaining with the Union regarding the changes;…”. By letter dated November 28,
2014, the Regional Director notified Brown the charge was dismissed for insufficient evidence to
establish a violation of the Act.
Respondent received an OSHA “Citation and Notification of Penalty” dated March 12, 20
2014, from the U.S. Department of Labor. It states, “The employer did not require that
employees stay clear of the area beneath the overhead drafts or descending lifting gear:” It
reads in part:
The employer failed to ensure an employee mechanically maintaining piles of pig iron for 25
cranes extraction in hold #1 of the docked cargo vessel Drowsko was kept out of the fall
zone of the cranes suspended bulk load. An employee operating a skid steer in the hold
was struck-by a mass of iron after a piece became displaced from the cranes grapple
and had entered the front opening of the skid steer working below. Employees working
in the fall zone were exposed to struck-by hazards.30
On March 22, 2014, Leach, on behalf of Respondent signed an “Informal Settlement
Agreement” with OSHA. Included in the settlement were the following paragraphs:
8. The Employer agrees to systematically work through the Standard Operating 35
Procedure (SOP) manual to review and update their procedures to create more specific
SOP’s similar to the form of the “SOP-Loading and Unloading Material”. A labor
representative will be part of this process; the make-up of the reviewing group can
change based upon the procedure being reviewed, but a labor representative will be
present for these reviews. The employer will provide the area office a copy of four of 40
these SOP’s no later than July 31, 2014, in addition to the names and titles of the
reviewers.
9. The Employer will agree to involve a labor representative in the investigation of safety
incidents/accidents. The representative will be agreed upon by labor/management and

7 In a position statement dated November 23, 2014, filed by Respondent’s counsel for a prior
charge pertaining to the March 2014 meeting, it was stated “union officials were invited to and
were present at this training/meeting:” Included in the named union officials was Russell who
was identified in the position statement as a union Trustee, Lines Dispatcher and frequent
designated union steward.
JD–89–16
14
the employer will have a third party conduct accident/incident investigation training for
those tasked to conduct them. The Employer will provide the area office verification of
this training and four accident/incident investigations, to include the date of the incident,
the name and title of the investigators and corrective actions taken. The employer will
provide these to the office within one year (3/22/15) or may stop after four have been 5
provided.
Blakely identified a letter to Blakely dated March 19, 2015, he received from Hubbard,
identifying Hubbard as the vice president of Local 1982. The letter states:
10
As you are well aware, Otis Brown is the chairman of both the union’s safety and its
training committee. In March 2014 a hearing was held for the purpose of addressing
charges brought against the employer for violating OSHA safety rules. Mr. Brown
attended that hearing and gave testimony on behalf of ILA local 1982.
Because of his participation in the hearing, this gave him a better insight as to the 15
nature of the settlement agreement. Therefore, the Executive Board of ILA Local 1982
appointed him as our labor representative. As part of the agreed upon settlement, he is
supposed to be part of the reviewing group that will work to improve the employers
Standard Operating Procedures (SOP) for loading and unloading material from the
various vessels, and to also participate as the labor representative in all safety incidents 20
and accident investigations.
During a recent Executive Board Meeting it was brought to my attention that nearly a
year has passed and the employer has not carried out its part of the agreed upon
settlement or at least not allowed the union labor representative to participate. Whatever
the case may be, I ask that you contact Otis Brown as soon as possible, with the hopes 25
that we can work together to get this matter resolved.
Blakely also identified a letter to Blakely dated March 20, 2015, he received from Brown,
identifying Brown as the president of Local 1982. In the letter Brown stated:
30
This letter is sent to address the employers continues malicious discontent for the
union and its members. Today I would like to discuss the blatant disregard of the
employer for the safety of the union and its member’s/employees.
On March 21, 2014 the employer was summoned before the U.S. Department of
Labor Occupational Safety and Health Administration to answer charges that were 35
brought against the employer for violating OSHA regulations that resulted in the serious
injury of one of my union officers, which has left him currently disabled.
During the hearing you and Mr. Terry Leach agreed to provide the union with copies
of the company’s safety handbooks and the work rules for our review, and to meet with
union to discuss any discrepancies that may exist within those documents. As part of 40
your written settlement agreement, you agreed to allow a union representative to assist
the employer and work through the Standard Operating Procedure manuals to review
and update them as needed. Also, you agreed to involve a union representative in the
all incident and accident investigations, and to bring in a third-party to conduct incident
and accident training for call of those who are tasked to conduct them.45
Exactly one year has passed and the employer has not provided the union with any
of those documents nor has the employer allowed the union representative to participate
in any of the events as listed in the settlement agreement.
The union position in this matter is that since the employer refuses to provide the list
of documents to the union representatives for review, and not allow them the opportunity 50
JD–89–16
15
to raise any issues on discrepancies, then the union and its member will not be held
bound by these documents.
Blakely testified, on January 20, 2016, that Respondent’s annual safety meeting was
held on March 21, 2015. Blakely testified that he hand delivered to the Union Respondent’s5
2015 to 2016 shipping season safety and policy handbooks on March 21. Blakely testified he
did this when they were distributed to current employees, including those who were union
officials, as they were entering the mandatory safety meeting held on that date. Blakely testified
Hubbard attended the meeting. Blakely testified concerning the distribution of the 2015-2016
policies that, “There were tables, and people circled around the table, picked up the documents, 10
and then signed a sign-in sheet and then went out into the bigger room and had a seat.”
Blakely testified that at no point prior to the meeting did he send a copy of the 2015 to 2016
safety policies or work rule policies to the Union. When asked if Hubbard objected to the
handbook policies at the March 21 meeting, Blakely testified, “I -- I don't recall.”
15
Leach was questioned on December 3, 2015, concerning the March 2015 mandatory
safety meeting on 611-(c) exam by the General Counsel.8 During that questioning the following
exchange took place:
BY MS. FRATERNALI: Q. Mr. Leach, isn't it true that at the 2015 mandatory safety 20
meeting that union vice president Prentis Hubbard objected to the employer's
implementation of the policies?
A. I don't recall if he was the union steward at the time. There's 11 of them so.
Q. Isn't it true that a union official objected to the employer's unilateral implementation
of the 2015 policies?25
JUDGE FINE: Which policies?
MS. FRATERNALI: The safety policies, the handbook, employee policies, and the ILA
operating procedures policies.
A. I don't recall if it was Prentis or not, no.
Q. Did an individual at that meeting object to the implementation of the 2015 policy 30
handbook, the 2015 safety handbook, and the ILA operating procedures handbook?
A. No. They objected to -- I know I can tell you that Don Russell objected to the
meeting and said he wasn't signing anything, if that's what you're referring to.
Q. Isn't it true that Mr. Russell was not employed at the time of March 2015?
A. I don't recall the exact dates.35
Q. Isn't it true that at the 2015 safety meeting, Mr. Prentis Hubbard informed
employees to sign their work rule acknowledgement papers under protest?
A. You would have to ask Mr. Hubbard that question.
Q. You were at the meeting in March of 2015, correct?
A. That's correct.40
Q. And you spoke at that meeting, correct?
A. I don't go over all the policies and stuff, but yes.
Q. You have no recollection of any employee speaking at the meeting?

8 Leach testified that all the employees who worked the 2015 to 2016 shipping season had to
attend a mandatory safety meeting in March 2015. When Leach was asked if he distributed the
2015 to 2016 safety handbook to the Union prior to holding the 2015 mandatory safety meeting,
he testified, “I don't recall that I did.” When further pressed, Leach testified, “Yes, I did not.” He
also testified he did not recall anyone else making such a distribution.
JD–89–16
16
A. I don't recall.
Hubbard testified he attended the mandatory 2015 safety meeting, which he thought
took place around March 20. Hubbard testified he spoke with Leach prior to the start of the
meeting. Hubbard testified, “I said we, the Union, wasn't given a chance to go over this with the 5
Company, and we were going to have the men sign it in protest.” Hubbard testified that Leach
told him he had to do what he had to do. Hubbard testified that no one else was present for this
conversation, and the discussion took place before Hubbard went inside. Hubbard testified that
all the men in the Union attended the meeting and he estimated it was anywhere from 15 to 20.
Hubbard testified Leach and Blakely attended the meeting. Hubbard testified employees are 10
required to sign an acknowledgment form for receipt of the safety handbook, for the policy
handbook, and for the ILA handbook. He testified they sign them as they are walking into the
meeting. Hubbard testified employees also have to sign documents at the meeting when they
go over the safety procedures, after every section they have to sign acknowledging that they
were there for the class. Hubbard testified that he spoke during the 2015 meeting in the 15
presence of Leach, Blakely and the union members. Hubbard testified he told the attendees
that “due to the fact that the Company didn’t come to the Union with the policies beforehand that
we were going to have to sign it in protest.” Hubbard testified the first time he saw an ILA
standard operating procedures handbook was the one for the 2015 shipping season. Current
employee Fisher also testified he also attended the March 2015 safety meeting, and he 20
received the policy handbook, the safety handbook and the ILA operating procedures that day.
Fisher testified Hubbard spoke and stated that we can write protest in that they can sign the
paper and then protest, “I guess, what the paper was recommending.”9
Blakely testified that, during the March 21, 2105 meeting, Respondent distributed new 25
handbooks being the 2015-16 Policy Handbook, and the 2015-16 Safety Handbook. Blakely
testified that “one of the things that we did starting in 2014 and then repeated in 2015 is we
provided a sheet of paper that had the table of contents for the safety handbook and the table of
contents for the policy handbook, so -- and then at the bottom it said like by signing this
document, I acknowledge receipt of the safety handbook and the policy handbook, and then 30
those are filed in each employee's personnel file. The reason we did that is because we
needed to make sure that we had evidence that people, got the books and that seemed to be a
cleaner way to do it. So the signature basically said I acknowledge receiving a copy of the
handbook.” Blakely testified in the past 2 years he had signature lines added to the handbook
indexes on a separate sheet to the manual, and then when the employees came to the table at 35
the meeting the document package already had the employee’s name on it. Blakely testified the
employees would sign the index and then take away a copy of the handbook. He testified that
certain policies, the more critical ones that dealt with safety, they were given a packet that had
those in there, and then when Respondent reviewed the policies, and asked if there were any
questions, they would then sign the applicable form for collection by Respondent, and then 40
Respondent would go to the next policy. Blakely testified everything an employee signed would
go into their personnel file.
When asked if there were different policies in the 2015 handbook than in the 2014
handbook, Blakely testified he thought in the safety handbook there are four pages, one called 45
driver safety and the other called visitor safety. Blakely testified those do not apply to the
employees. He testified those are documents added at the advice of Mlynek. Blakely explained

9 Respondent’s attendance records for the March 2015 meeting show that Hubbard and
Fisher attended the meeting.
JD–89–16
17
that in 2012, Mlynek had done an audit of the facility and recommended Respondent
communicate to all visitors coming on the port Respondent’s policies and safety policies,
including wearing personnel protective equipment, and obeying signs. Blakely testified the
reason why he included those in the employee handbook was to inform the employees that
Respondent was communicating the information to visitors because there are people who do 5
not follow the rules. Blakely testified he wanted the employees to understand if a truck driver
said to an employee that the driver did not know a rule it was not an accurate statement.
Blakely testified Leach stresses if there is an issue, the employee should contact Leach, the
employee should not get into a confrontation with a truck driver. Blakely testified, “if there is a
problem, don't -- we'll address it, but make us aware of it. Always make us aware of unsafe 10
conditions.” Blakely testified the policies were in practice prior to 2015, but this was the first
time they were placed in the safety handbook. Blakely explained the policies were distributed to
visitors as they enter Respondent’s facility. Blakely testified the first time these rules were put
into place for visitors was in 2012, which Blakely testified he explained at the 2015 meeting.
Blakely testified a visitor would be anyone who is not an employee, stating there are different 15
types of visitors, including contractors, truck drivers, customers, and port authority people who
come and do a bus tour.
Blakely testified he made changes to Respondent’s cell phone policy in the 2015
handbook. Blakely attributed the changes to the advent of the smart phone pertaining to 20
distracted equipment operation. Blakely testified he also had a concern about people's right to
privacy in terms of being photographed at work. He testified, if someone is photographed at
work and the employer does not have some sort of statement on that, then the employer is
liable, too. He testified the policy was put to protect people's rights to privacy, to prevent
bullying and to prevent people from being harassed by being photographed at work. Blakely 25
testified if someone went after someone for harassment they would go after the person with the
deepest pocket which is the company. Blakely testified, “So I did that, I added things like that
for that purpose.”
Blakely testified there were also security concerns pertaining to the cell phone policy in 30
that Boeing stores titanium billets at Respondent’s facility, and “they are very concerned about
people knowing, taking pictures, what's the content of them. I mean, that's their trade secrets
and so forth and so on.” He also testified Respondent also has calcium at the facility which can
be used for explosives. Blakely testified having pictures and videos of those things put on social
media is very dangerous and, “so we need to have a custody chain of that. We need to know if 35
somebody were going to take something for documentation purposes, whether it be a customer
because a product got damaged or a union official because they think that there is some sort of
violation of their union rights or whatever, our policy says that's okay, but for security reasons
we need to know have a chain of custody on that, who is going to have it, where is it going to
go, what it's going to be used for. We don't want to find it up on some website with somebody 40
saying here's a great supply of calcium nitrate that you could use, high jacking a truck that
comes out of our facility.” Blakely explained the reasons for the new cell phone policy are
“safety, security, and basically protecting employees' rights.”
Blakely testified he learned that a union official had taken a video of product. He 45
testified it was at an earlier NLRB trial because the General Counsel wanted to enter it into
evidence. Blakely testified it was not allowed in evidence at the trial, but it was given to
Respondent’s counsel. Blakely estimated that this took place in 2014. Blakely testified it was
subsequently admitted into evidence at a later trial about Don Russell's termination, which
Blakely thought was at the end of 2014. Blakely testified part of the video showed the 50
JD–89–16
18
transferring and unloading of calcium bags into a J shed warehouse. Blakely testified the video
was made by an employee who was the steward. Blakely testified the employee was driving a
forklift going north and filming activity east to his right, and “it actually is apparent in the video as
he pans with the smart phone while he's operating a forklift.” Blakely testified operating
equipment while using a cell phone is a violation of the work rule which is in the contract and 5
which is a violation of the old mobile device policy.” Blakely testified, “You're not supposed to
do that. And, when these devices weren't as addictive and as attractive, they really weren't as
much of a problem.”
Blakely testified that under the employer's new cell phone policy an employee is not 10
prohibited from taking a video. He testified, “We use the word restricted because of the
sensitive nature of -- because of security concerns and because of customer concerns.”
Blakely testified, “the policy states that if there is a need to document something, that you need
to talk to the facility security officer. Then the other thing I would say is it needs to be done
safely. There is a lot of things happening down at our facility, and if people are totally 15
engrossed in a smart phone and what they are doing, they could inadvertently hurt themselves
and hurt others.” Blakely testified he did not bargain with the Union over any of the changes
noted in the 2015-2016 handbook. He testified that no one from the Union ever requested him
to bargain.
20
Blakely testified he was part of the group that drafted Respondent’s standard operating
procedures manual in that he primarily did the drafting with others providing the content as
Blakely testified he is not an operations person. Blakely testified he is familiar with the informal
settlement agreement between Respondent and OSHA. Blakely testified that in terms of the
settlement OSHA area director, Kimberly Nelson, wanted Respondent to formalize the standard 25
operating procedures they were using by placing them in writing. When asked if it was not true
that a union officer was not present during the creation and drafting of that policy, Blakely
replied, “A union member was present and participated.” Blakely testified a labor representative
was part of the process and his name is Juan Rizo.
30
Blakely testified pertaining to Respondent’s 2015 to 2016 ILA Standard Operating
Procedures it was his understanding that it provided, “a listing of procedures that were in place
so it could be shared with everyone.” He testified he was not aware of any prior written
procedures. Blakely testified he learned of the existing the procedures which he incorporated in
the document by talking to people and being told what they said was taking place. When asked 35
if he added any new procedures to the document, Blakely testified, “I mean, I really can't answer
that question because that's an operations question; you know what I mean?” He testified he
encapsulated what he was told was already being done by people in operations, and whether it
was actually being done at the time he could not say. Blakely testified OSHA ordered
Respondent, as part of the informal settlement, to create the document.40
Leach first testified about the implementation of Respondent’s 2015-16 ILA Standard
Operating Procedures when he was questioned by counsel for the General Counsel on 611-(c)
exam. At that time, Leach denied that the Respondent implemented the ILA operating
procedures 2015 to 2016 handbook without negotiating with a union official, stating “No. That's 45
false.” Leach testified that Juan Rizo is an employee of Respondent. When asked if Juan Rizo
was a union official, Leach testified, “I don't know. You'd have to ask the union.” Leach
identified Respondent’s “2015-16 ILA Standard Operating Procedures” which is a 15 pages
single spaced document containing separate procedures under the headings: Aluminum
Discharge; Calcium Discharge; Outgoing Bulk Commodities; Pig Iron Discharge; Salt or Sugar 50
JD–89–16
19
Discharge; and Steel Coil Discharge. On page one of the document it contains a column
marked original date of April 26, 2014, Rev 1 date May 6, 2014. It states it was revised by Brad
Hendricks and Leach. Leach testified Hendricks is the assistant operations manager, and not a
union official. It states it was reviewed by Blakely and Lauri Justen, who Leach testified was
corporate HR, and Juan Rizo, who Leach testified “He's like a foreman for the ILA, has been 5
since I've been there.” When asked if any of the other named individuals were union officials,
Leach testified, “No, just Juan Rizo.” When asked if it was true that union officials did not have
the opportunity to review the standard operating procedures prior to Leach handing them out at
the 2015 mandatory safety meeting, Leach testified, “No. Juan Rizo did, John. He goes by
John.” When asked if Leach presented the document to anyone other than Juan Rizo prior to 10
the 2015 safety meeting when the document was distributed to employees, Leach testified, “Not
that I remember.” When asked if he provided the Union with a copy of the 2015 to 2016 policy
handbook prior to the March mandatory safety meeting, Leach testified, “Not that I recall.” He
testified, “Me personally, I personally didn't do it.”
15
Leach later testified John Rizo is a union representative in that he is a “He's a member of
the ILA 1982.” When asked if Juan Rizo was a union official, Leach testified, “No, not that I
know.” When asked if he was required by the OSHA settlement to have a union representative
involved in developing the document, Leach testified, “I did, John Rizo.” However, Leach
testified he was never notified that Rizo was a union official. Leach testified Juan Rizo is a 20
union foreman who is very knowledgeable concerning Respondent’s procedures. Leach
testified Juan Rizo did not attend contract negotiations with Respondent on behalf of the Union.
When asked who attended for the Union, Leach testified “It would be sometimes Otis Brown,
Mr. Russell, Mr. Victorian, Mr. Hubbard, Mr. Sims, Andre Joseph.” Leach testified these
individuals had titles as union officials. 25
Leach testified concerning the procedures included in the “2015-16 ILA Standard
Operating Procedures”, that “It was part of the settlement with OSHA that we sit down and
actually put in print what we're doing, how we operate. They wanted to see it in print so that we
could share with everybody that this is the standard operating procedure. So there is no myths 30
or anything else about it. The way they used to do it in the past, that's the way we've always
done. I mean, we've got new equipment and stuff like that. You know, we try to better it. But
part of the standard operating procedure, and this is the standard, this is the minimum you have
to do especially when it comes to unloading, loading and offloading vessels, it's very important
that everybody is on the same page.” Leach testified they put in writing the same thing that they 35
were doing since 2007 for the standard operating procedures. Leach testified following the
2014 OSHA hearing, “We put our operating procedures down on paper is what we did.”
Concerning the “2015-16 ILA Standard Operating Procedures,” Leach was asked, on
cross-examination by Union President Brown if it was true that the front end loader procedure 40
item 3 was in effect before the standard operating procedures were written, Leach replied,
“Well, it would be awful unsafe if it wasn't in effect.” Leach testified, “It was in effect. Now,
whether the signalmen were doing it or not. Now that it's in print, they do it.” Leach testified,
“they were doing it all along, the ones that were doing it properly because you know better than
anybody as an operator.”45
Brown testified he only first saw “2015-16 ILA Standard Operating Procedures”
distributed by Respondent during the March 21, 2015 safety meeting around the end of March
or the beginning of April. Brown testified he became aware of the policy when he received a
copy from Hubbard who brought it to the Union’s office. Brown testified following the March 50
JD–89–16
20
2015 safety meeting, Hubbard also brought Brown a copy of Respondent’s 2015-16 Safety
Handbook which Hubbard informed Brown was distributed to members during the same March
2015 safety meeting. Brown testified the document was never given to him by Respondent.
Brown also identified the “2015-16 Policy Handbook” that Respondent issued to Union members
during the March 2015 safety meeting. Brown testified that the first time he saw the document 5
was a week to 10 days after the meeting sometime in late March or early April in that a copy
was furnished to him by one of the union members. Brown testified it was never delivered to
him by Respondent. Brown testified Respondent did not give the Union notice that it would be
presenting bargaining unit employees these documents prior to Respondent’s March meeting.
10
Brown testified, contrary to Leach, that the front end loader procedure detailed in
Respondent’s “2015-16 ILA Standard Operating Procedures” was not in effect prior to the
issuance of the 2015 to 2016 handbook policy. Brown testified on page 4, under front end
loader number one where it states to determine the safety zone was something that was never
done. Brown testified he has reviewed the old policies and he has worked that job before. 15
Brown testified “the procedure was not in effect which led to the situation that took it to OSHA.”
Concerning the policies in the 2015 to 2016 ILA standard operating procedure, Brown testified
the “policy covering the capacity of your forklifts was not being followed at that time. They are
now, but at the time no.” He testified this was an issue when the OSHA charge was filed in that
“The lifting capacity was not followed.” He testified that a comprehensive ILA standard 20
operating procedures policy handbook did not exist prior to the 2015 to 2016 shipping season.
c. Respondent’s Testimony Concerning Facility Security
Leach testified that, among his duties as director of operations, is being facilities security 25
officer. Leach testified that as such he is in charge of developing and implementing a security
plan for the port. Leach testified that a facility’s security plan is a detailed plan mandated by
Homeland Security, U.S. Customs, and the United States Coast Guard, and it has to deal with
not only securing the waterways for the Port of Toledo, but also the surrounding lands and
buildings. Leach testified once the plan is developed it has to be reviewed by outside personnel 30
dealing with Homeland Security. He testified that after their review it goes to the US Coast
Guard for approval. Leach testified when the plan is approved it is valid for approximately 5
years. However, the Coast Guard performs unannounced spot checks on Respondent, which
also may include checking the location of the plan which has to stay locked in a designated
location. Leach testified there is a fear about the plan getting into in the wrong hands because 35
there is a lot of detailed information about cameras, fences, and lighting related to the port.
Leach testified the Port of Toledo is considered a soft spot meaning it is vulnerable to terrorist
organizations.
Leach identified a letter dated August 15, 2014, containing the letterhead US 40
Department of Homeland Security and United States Coast Guard. The letter states effective
the date of the letter Respondent must operate in compliance with this approved FSP and any
additional requirements contained in 33 CFR parts 101 and 105. It states the facility was
subject to inspections by the Coast Guard to verify compliance with its security plan. It states
failure to comply with the requirements of 33 CFR part 105, including those as outlined in the 45
facility security plan may result in suspension or revocation of the security plan approval,
thereby making the facility ineligible to operate in, on, under, or adjacent to waters subject to the
jurisdiction of the United States. It states the SFP’s security sensitive information and must be
protected in accordance with 49 CFR Part 1520 and a copy of the security plan and any
amendments must be made available to Coast Guard personnel on request. The letter states50
JD–89–16
21
this approval will remain valid until 5 years from the date of the letter unless rescinded in writing
by this office.
Leach testified Respondent has to have an annual audit, and role playing pertaining to
certain events to protect the port. He testified if Respondent fails a spot check or audit the 5
severest penalty that can be imposed is that the Coast Guard can shut down the port until
Respondent reaches compliance. Leach testified Respondent could also be fined but they have
not been fined to this point. Leach testified Respondent has received warnings to correct things
pertaining to security. Leach testified that if the port was shut down due to a security problem
when it reopened it would probably be with a new company. Leach testified the Port Authority 10
of Toledo owns the land and they would be responsible for getting an attendant to run things.
Leach testified the last time he was told to correct something has been, “a couple of years, three
or four years.” He testified “I am very meticulous about the security, very meticulous.”
Leach testified the federal regulations for the Coast Guard change constantly, and they 15
will tell him there are new things that he has to start doing particularly with signage. Leach
testified the past two seasons it has been the biggest thing with the Coast Guard because of
calcium chloride Respondent has on the site for which they had to start posting signs for no
smoking and things of that nature. He testified since the signs have been posted anyone who
comes by the port by the river can now see the signs. Leach testified, “you don’t want to alert 20
the media, but I have to follow what the Coast Guard does.”
Leach testified Leach and Blakely are the only two of Respondent’s personnel who are
allowed to see the security plan. He testified the Coast Guard, U.S. Customs, and Homeland
Security are allowed to see changes in the security plan or the whole plan. Leach testified that 25
Homeland Security would not allow Respondent to operate the facility without the Coast Guard’s
approval of the security plan. Leach testified that in the last 2 years Respondent has not “really
changed anything in that other than, like I said, it’s always small thing like signs.” Leach
testified the only plan change in the past two years was the change in signage. Leach testified
the change was Respondent put up signs as required by the Coast Guard. 30
Leach testified part of the security is the safety of the employees, the safety of the
customer’s products, and the safety of the region. Leach testified the entire port is a secure
facility and it encompasses about 110 acres. Leach testified that Respondent has various
cargos at the port that necessitate a security plan. He testified these materials include calcium 35
nitrate and titanium. Leach testified company personnel and employees are required to carry
identification to enter the facility called a TWIC, a transportation worker identification card. He
testified obtaining one of these cards requires a federal background check. Leach testified if
someone does not have a TWIC, a third party escorts them in and out of the facility. Leach
testified when visitors come in they have to be escorted. It was pointed out to Leach that article 40
15 of the parties’ most recent CBA contains a list of cargo. However, Leach denied that the
public knows the list of cargo at the facility from the agreement. He testified the CBA lists the
“types of products that these gentlemen are allowed to handle. That's why it's in this. But as far
as knowledge of what's stored in our facility, no.” Leach testified that multiple other products
could be stored at the facility then what is listed in the CBA, but the CBA lists what the 45
bargaining unit employees handle if it was stored at the facility. Leach testified there are
additional hazardous products stored at the facility that are not listed in the CBA. He testified
these products are listed on his MSDS material safety data sheets. Leach testified the Union is
provided two of the MSDS sheets. He testified they have negotiated hazard pay for working
JD–89–16
22
with these materials before and if the employees are working calcium chloride, they get the
extra money, but any of the other hazardous materials these employees are not handling.
Todd Audet, called as a witness by Respondent, testified he has two positions in that he
is the ODOT District 2 Deputy Director where he manages the transportation system for 5
northwest Ohio for the department, and he is also the Chief of Staff for the Ohio Air National
Guard Joint Force Headquarters, for which he holds the rank of brigadier general. Audet
worked for Respondent from approximately 2008 to about 2010 as vice president of operations.
He was responsible for the overall operation of the facility one terminal.
10
Audet testified that while he worked for Respondent he oversaw the development of the
port security plan. Audet testified Respondent operates an international port, and it is part of the
layer of defense for the homeland, that being a porthole into the United States. Audet explained
that ships from anywhere on the planet can call on the port of Toledo. Audet testified he did not
work on any rules pertaining to employees’ use of cameras while he worked for Respondent. 15
Audet testified there is a requirement for a port of entry to have a layered security system.
Audet testified, “I don't know if there was a requirement for cameras, but we chose cameras as
a means to put the layered security at the facility.” In terms of material coming to the port, that
Audet thought they should not be photographed and/or posted on the internet, he testified, there
are several dimensions to that. He testified as to product, cargo, transformers, and products to 20
the refinery had to be protected because of their sensitive nature. Audet testified the other
dimension is how the port operated, where security was, where people moved around on the
dock. He testified that anyone that would want to move on the facility would be gathering that
information, so Respondent needed to be aware of all activity that was going on. Audet testified
that any sensitive installation has security requirements and publishing how they operate 25
creates vulnerability to the operation and to the security of the facility.
d. Credibility
In assessing credibility in this case I have taken into consideration the remoteness of 30
certain events, the documentary evidence, the witnesses’ demeanor including whether they
were argumentative, sought to deflect, and professed a lack of recall of certain events which
under normal circumstances their recollection should have been clearer.10

10 As exhibited from the case history outlined in this decision, Respondent has been the
subject of several unfair labor practice charges, and has in the past been found by the Board
and other judges to have violated the Act, including engaging in discriminatory conduct against
employees for their participation in union and related protected activities. There were a couple
of instances where witnesses testified in this case who had given affidavits in other unrelated
Board proceedings. The General Counsel asked that I conduct an in camera inspection of
those affidavits, and only require production of portions of those affidavits relating to testimony
provided on direct examination. I followed this request and ordered certain affidavits not to be
disclosed, and others to be disclosed after redactions. Respondent was also provided with full
affidavits which were given in support of the current charge. This procedure, although objected
to by Respondent, is required by the Board’s regulations and consonant with Board law. See,
Caterpillar, Inc., 313 NLRB 626 (1993). It is all the more applicable in this case in view of the
nature of Respondent’s prior unfair labor practices. While at one point I facetiously stated
Respondent’s counsel made an excellent argument pertaining to its attempt to pillage through
JD–89–16
23
There was somewhat of a conflict between the testimony of Brown and Blakely as to
whether Brown protested Respondent’s initial implementation of its policy and safety handbooks
during the March 2012 mandatory safety meeting. Brown initially testified his protest took place
during the March 2013 meeting, but when Respondent’s attendance records showed he did not 5
attend that meeting, he concluded he was mistaken and the protest took place at the March
2012 meeting at the advice of the Union’s trustees who were running Local 1982 at that time.
Blakely testified 2012 was the first year that Respondent implemented policy handbooks, but
claimed he could not recall whether Brown protested their implementation at the 2012 meeting,
although he admitted that Brown spoke at that meeting, but testified it was about another topic. 10
Blakely then, while pleading poor recollection of the meeting, by surmise concluded that Brown
did not object to the implementation of the handbooks prior to the meeting, because Blakely
would not have had enough time for such a conversation because he was busy preparing
documents for distribution at the meeting. I did not find Blakely denial of recollection to be
particular convincing but neither did I find Brown’s recollection of this meeting to be of sufficient 15
clarity to meet the General Counsel’s burden of proof of establishing that Brown protested the
implementation of the handbooks in March 2012. Moreover, even if he lodged such a protest,
he was not a union official at the time, nor was any evidence presented that he was authorized
to speak on behalf of the Union, or that Respondent was notified that he was doing so.
20
Pertaining to the March 2013, Union Vice President Hubbard, testified Respondent
passed out new handbooks in 2013, that he protested Respondent’s failure to bargain about the
handbooks with the Union with Leach prior to the start of the meeting, and then again at the
meeting in the presence of Leach and Blakely, Hubbard reiterated the protest to the employees
stating that they should sign for the documents under protest. Hubbard’s testimony concerning 25
his announcement to employees at the 2013 meeting was supported by the testimony of current
employees Bates and Fisher. However, Respondent’s attendance records for the 2013 meeting
show that Bates and Fisher did not attend the meeting. The attendance records also show no
notation of handbooks being passed out at the meeting. Blakely testified that no new
handbooks were in fact passed out at the 2013 meeting, and that Respondent merely reviewed 30
the 2012 handbooks. It should be noted that Respondent’s attendance records showed some
employees attended the 2013 meeting who were not present for 2012 meeting, in which case
they may have been tendered handbooks. Nevertheless, Respondent’s records for the 2013
meeting appear to be more reliable than the witnesses’ recollection of what transpired, and
those records fail to substantiate Hubbard’s claim that new handbooks were passed out during 35
that meeting, or that employees had to sign for anything beyond their attendance at the
meeting, or their receipt of paperwork for their pre-season drug screen. In other words, I do not
find based on the evidence before me that Respondent introduced new policies at the 2013
meeting or that Hubbard raised a protest of any such new policies at the 2013 meeting.
40
Blakely testified that during the March 22, 2014, annual safety meeting, Respondent
passed out and had employees sign for a new policy handbook and a new safety handbook. He
testified he did not bargain with the Union concerning the handbooks, nor did he send the Union
a copy of the handbooks prior to the meeting. Rather, the documents were passed out to
employees, some of whom were union officials, right before the meeting started. Leach testified 45
then Union steward Fred Victorian, Jr., objected to the unilateral implementation of the

unrelated witness statements, this was only because the argument once heard did not require
repetition and delay of this proceeding.
JD–89–16
24
handbooks at the 2014 meeting, stating he was under the instruction of Union President Otis
(Brown) not to sign anything. Leach also testified that Don Russell, who he surmised was also
a union steward, made a similar protest at the meeting. Brown and Hubbard did not attend the
2014 meeting but Brown filed an unfair labor practice charge on September 18, 2014, over the
policy changes made at the March 22, 2014, meeting. Accordingly, I find as Leach testified that 5
at the March 22, 2014, meeting employees who were union officials protested the policies
unilaterally implemented by Respondent at that meeting, that they were under instruction by
Brown to make such a protest, and that Respondent’s officials knew that Brown had given those
instructions.
10
Blakely testified that, during the March 21, 2105 mandatory annual meeting, Respondent
distributed new handbooks being the 2015-16 Policy Handbook, and the 2015-16 Safety
Handbook. Blakely testified that beginning in 2014 and continuing in 2015, Respondent
provided a sheet of paper that had the table of contents for the safety and policy handbooks,
which the employees had to sign, and which was placed in their personnel files. Blakely 15
testified the reason this was done was because Respondent needed evidence that people
received the books. Respondent also passed out for the first time an ILA Standard Operating
Procedures handbook during the March 21, 2015 meeting.
By way of background on March 22, 2014, Respondent entered into an “Informal 20
Settlement Agreement” with OSHA. Included in the settlement, Respondent agreed to
“systematically work through the Standard Operating Procedure (SOP) manual to review and
update their procedures to create more specific SOP’s similar to the form of the “SOP-Loading
and Unloading Material”. A labor representative will be part of this process; the make-up of the
reviewing group can change based upon the procedure being reviewed, but a labor 25
representative will be present for these reviews.” Hubbard sent Blakely a letter dated March 19,
2015, stating Brown was the chairman of both the union’s safety and its training committee. It
stated Brown attended the OSHA hearing and gave testimony on behalf of Local 1982. It stated
the union executive Board appointed Brown as their labor representative pertaining to the
OSHA settlement, and that as part of that settlement, Brown was “supposed to be part of the 30
reviewing group that will work to improve the employers Standard Operating Procedures (SOP)
for loading and unloading material from the various vessels, and to also participate as the labor
representative in all safety incidents and accident investigations.” The letter protested
Respondent’s failure to incorporate a union representative as required by the settlement and
asked that Blakely contact Brown as soon as possible to resolve the matter. Brown sent Blakely 35
a letter dated March 20, 2015, stating pertaining to the OSHA settlement, “you agreed to allow a
union representative to assist the employer and work through the Standard Operating
Procedure manuals to review and update them as needed. Also, you agreed to involve a union
representative in the all incident and accident investigations, and to bring in a third-party to
conduct incident and accident training for call of those who are tasked to conduct them.” The 40
letter stated Respondent had not provided the Union with required documents, “nor has the
employer allowed the union representative to participate in any of the events as listed in the
settlement agreement. The union position in this matter is that since the employer refuses to
provide the list of documents to the union representatives for review, and not allow them the
opportunity to raise any issues on discrepancies, then the union and its members will not be 45
held bound by these documents.”
Hubbard testified he attended the mandatory March 2015 safety meeting. Hubbard
testified that he spoke with Leach prior to the start of the meeting. Hubbard testified, “I said we,
the Union, wasn't given a chance to go over this with the Company, and we were going to have 50
JD–89–16
25
the men sign it in protest.” Hubbard testified that Leach told him he had to do what he had to
do. Hubbard testified that all the men in the Union attended the meeting, along with Leach and
Blakely. Hubbard testified that he also spoke during the 2015 meeting in the presence of
Leach, Blakely and the union members. Hubbard testified he told the attendees that “due to the
fact that the Company didn’t come to the Union with the policies beforehand that we were going 5
to have to sign it in protest.” Hubbard testified the first time he saw an ILA standard operating
procedures handbook was the one for the 2015 shipping season. Current employee Fisher also
testified he also attended the March 2015 safety meeting, and he received the policy handbook,
the safety handbook and the ILA operating procedures that day. Fisher testified Hubbard spoke
and stated that we can write protest in that they can sign the paper and then protest. I found 10
Hubbard and Fisher testified in a credible fashion that Hubbard lodged a protest concerning
Respondent’s unilateral action pertaining to the safety, policy, and standard operating
procedures during the March 21, 2015 annual meeting. Leach admitted the Union had lodged a
protest of Respondent’s policy changes during the 2014 meeting and in fact the Union had filed
an unfair labor practice charge concerning them. Also both Hubbard and Brown had sent 15
Blakely letters of protest shortly before the March 21, 2015 meeting. Given the receipt of the
letters, and the prior history of the parties I do not credit Blakely’s claim that he did not recall
whether Hubbard lodged such a protest at the 2015 meeting. I do not find the timing of the
meeting was far enough back to test Blakely’s recall of such a protest, which I in fact found took
place. Rather, I find that Hubbard lodged the protest as he testified, that Blakely recalled it, but 20
refused to acknowledge it in his testimony. Similarly, I found Leach’s testimony when asked as
to whether Hubbard lodged such a protest to be purposely evasive. I therefore I find that
Hubbard protested the unilateral policy implementations by Respondent at the March 21, 2015,
meeting and that both Leach and Blakely recalled that he did so, despite their refusals to
acknowledge it.25
I also note that Respondent has exhibited a history of animus towards employees’ union
activities, in particular to that of Brown. The correspondence pertaining to the OSHA settlement
reveals Brown played a role in the OSHA proceedings on behalf of the Union. I find that while
both Leach and Blakely half-heartedly, during their testimony, labeled Juan Rizo, a foreman, 30
who was a member of the bargaining unit as a labor representative, they were aware that Rizo
did not occupy that status. This is particularly so since Blakely touted his prior union
background before accepting employment with Respondent during the course of his testimony.
Rather, I find Respondent hand-picked Rizo as the labor representative to participate in the
drafting of the 2015 SOP in an effort to bypass Brown who was the union president, participated 35
in contract negotiations on behalf of the Union, and served as chairperson on the Union’s safety
committee, but whose discharge by Respondent in October 2013, has recently been found by a
judge to have been an unlawful discharge.
Finally, the tenor of the OSHA citation and settlement agreement was that Respondent’s 40
standard operating procedures were not sufficiently defined or being followed, so as to create a
hazardous work environment. While Leach testified Respondent merely encapsulated in its
written 2015-2016 ILA Standard Operating Procedures what had already it had already being
doing in practice, I did not find his testimony to be particularly persuasive here. Leach’s
testimony supports this conclusion. He testified, OSHA “wanted to see it in print so that we 45
could share with everybody that this is the standard operating procedure. So there is no myths
or anything else about it. The way they used to do it in the past, that's the way we've always
done. I mean, we've got new equipment and stuff like that. You know, we try to better it.”
When asked about the front end loader procedure, Leach testified, “Well, it would be awful
unsafe if it wasn't in effect.” Leach testified, “It was in effect. Now, whether the signalmen were 50
JD–89–16
26
doing it or not. Now that it's in print, they do it.” Leach testified, “they were doing it all along, the
ones that were doing it properly because you know better than anybody as an operator.” I have
credited Brown’s testimony over that of Leach and find that the procedures were not sufficiently
known, being followed, or as concrete in format as Leach portrayed them until Respondent
unilaterally adopted its handwritten SOP manual in 2015, to the exclusion of the Union.5
e. Analysis
The complaint alleges Respondent, in violation of Section 8(a)(1) of the Act, has
maintained the following policies and/or work rules in its 2015-2016 Policy Handbook:10
The Non-Disclosure/Confidentiality Policy #2500 provides the following:
Photography and all types of recording are restricted on all company property
and cannot take place without prior written permission from the Director of
Operations. All images and recordings taken by…employees and/or visitors 15
remain solely the property of MWTTI or MWTT, including any image or recording
taken with a personally owned cell phone camera or other digital imaging device.
Employees who improperly use or disclose…confidential business
information, to include information regarding labor relations, will be subject to
disciplinary action, including termination of employment and legal action, even if 20
they do not actually benefit from the disclosed information.
Marketing documents specific to a customer, all contact information, all
accounting data, all personnel information, and union related business are
considered confidential business information and should be guarded as such.
The Confidentiality Agreement Policy #2550 provides that employees must: 25
[M]aintain the confidentiality of ALL documents, credit card information, and
personal information of any type and that such information may only be used for
the intended business purpose. Any other use of said information is strictly
prohibited and is cause for immediate dismissal. Additionally, should [employees]
misuse or breach, any personal information or the expectation of privacy of said 30
clients and/or employees; [employees] understand that [they] will be held fully
accountable both civilly and criminally, which may include, but not limited to,
Federal and State fines, criminal terms, real or implied financial damages
incurred by the client, employee, or this company. (emphasis in original)
The Camera, Cell, Digital Device Policy #3100 provides:35
In the Policy Overview, that employees and visitors are prevented from “the
improper disclosure of company trade secrets and confidential business
information.”
Under the General Policy, Digital Equipment Usage, that the “[u]se of
cameras, whether cell phone cameras, stand-alone cameras, or cameras40
contained on any other devices, whether digital or conventional film cameras—
while on duty or when performing any function for or on behalf of the company –
is restricted. This policy applies to all full-time and part-time employees and
visitors.” (emphasis in original)
Under Cellular Telephone Use, that “[o]n-duty use of cell phones to send 45
electronic mail is expected to comply with company rules and policies including
sexual harassment, discrimination, ethics, code of conduct, confidentiality and
workplace violence.”
Under Camera Use, that “[e]mployees while on duty and/or on facility
property shall not be permitted to use cameras or other audio, picture, 50
JD–89–16
27
video, or image generating devices — including cell phone cameras —
without prior written authorization from the Facility Security Officer or his
designee.”
Under Camera Use, that “[a]ll on-site photography or recording shall
be for documentation or investigation purposes only and conducted at the 5
direction or authorization of the Facility Security Officer or his designee.”
Under Camera Use, that “[a]ny photographs or recordings taken by an
employee while on duty or facility visitor while on site are solely the
property of MWTTI and/or MWTT and not the property of the individual.
This includes any photograph or recording inadvertently taken with a 10
personally owned cell phone camera or other digital imaging or recording
device.”
Under Camera Use, that “[n]o photograph or recording (taken by an
employee on duty or a facility visitor) may be used, printed, copied
scanned, e-mailed, posted, shared or distributed in any manner without 15
the express, written approval of the Facility Security Officer or his
designee.
Example: This prohibition includes but is not limited to posting
photos or videos on Websites such as FaceBook, Instagram,
SnapChat, Twitter, YouTube, or MySpace, or on other websites or 20
e-mailing to friends, colleagues or others.”
Under Camera Use, that “[e]mployees may not take or use images or
recording to harass, embarrass, annoy others and/or violate an
individual’s expectation of privacy. All company policies, including
policies on harassment, discrimination, and processional conduct, apply 25
to photographs and/or recordings taken.”
Safe Workplace Environment #4500 policy prohibits an employee from “[v]iolating
others’ expectation of privacy”.
Safe Workplace Environment #4500 prohibits “[l]oitering or presence on the jobsite
without authorization before or after assigned shift is completed;”30
The complaint alleges that Respondent, in violation of Section 8(a)(1) of the Act,
Respondent has maintained the following policies and/or work rules in its 2015-2016 Safety
Handbook:
The Incident Reporting Policy #1600 that states that “Because it is likely that 35
incidents involving hospitalization or a fatality will result in litigation, all reports and
related documentation, including photographs…shall be marked as follows:
“PRIVILEGED AND CONFIDENTIAL – ATTORNEY WORK PRODUCT PREPARED IN
ANTICIPATION OF LITIGATION.”
The Incident Reporting Policy #1600 that states that “[n]o incident report or related 40
documents shall be disclosed to anyone outside of MWTTI unless authorized to do so by
Alex Johnson, President and CEO.”
The Driver Safety Requirements that states that “[p]hotography and recording are
restricted at this facility at all times.”
The Visitor Safety Requirements that states that “[p]hotography and recording are 45
restricted at this facility at all times.”
The complaint alleges Respondent violated Section 8(a)(5) and (1) of the Act by::
JD–89–16
28
Since March 1, 2015, Respondent unilaterally changed the 2015-2016 Policy
Handbook’s Nondisclosure/Confidentiality Policy #2500 by promulgating new rules
pertaining to camera usage.
Since on or about March 1, 2015, Respondent unilaterally changed the 2015-2016
Policy Handbook’s Camera, Cell, Digital Device Policy #3100 by promulgating new rules 5
pertaining to camera, digital device, and email usage.
Since on or about March 1, 2015, Respondent unilaterally promulgated and
implemented the 2015-2016 Safety Handbook’s Driver Safety Requirement.
Since on or about March 1, 2015, Respondent unilaterally promulgated and
implemented the 2015-2016 Safety Handbook’s Visitor Safety Requirement.10
Since on or about March 1, 2015, Respondent unilaterally promulgated and
implemented a 2015-2016 ILA Standard Operating Procedures policy.
1. The Section 8(a)(1) allegations
15
In T-Mobile USA, Inc., 363 NLRB No. 171, slip op. at 1-5 (2016), the Board set forth the
following principles:
An employer violates Section 8(a)(1) of the Act if it maintains workplace rules that would
reasonably tend to chill employees in the exercise of their Section 7 rights. See 20
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
The analytical framework for assessing whether maintenance of rules violates the Act is
set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Under Lutheran
Heritage, a work rule is unlawful if “the rule explicitly restricts activities protected by
Section 7.” Id. at 646 (emphasis in original). If the work rule does not explicitly restrict 25
protected activities, it nonetheless will violate Section 8(a)(1) if “(1) employees would
reasonably construe the language to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Id. at 647.
***30
In construing rules, Lutheran Heritage teaches that they are to be given a reasonable
reading, and are not to be considered in isolation. Id. at 646. Further, any ambiguity in
the rule must be construed against the drafter--here, the Respondent. Lafayette Park,
above at 825.
Applying this legal standard to the four issues presented by the parties' exceptions, 35
we agree with the judge, for the reasons she states, that the Respondent violated
Section 8(a)(1) of the Act by maintaining language in section 4.4 of its Acceptable Use
Policy prohibiting employees from permitting “non-approved individuals access to
information or information resources, or any information transmitted by, received from,
printed from, or stored in these resources” without prior written approval, and by 40
maintaining a “Commitment to Integrity” provision in its Code of Business Conduct that
prohibits “arguing . . . with co-workers, subordinates or supervisors; failing to treat others
with respect; or failing to demonstrate appropriate teamwork.”6
Contrary to the judge, however, we find that the Respondent also violated Section
8(a)(1) by promulgating and maintaining rules in its employee handbook requiring 45
employees “to maintain a positive work environment by communicating in a manner that
is conducive to effective working relationships” and prohibiting employees from making
recordings in the workplace.
***
JD–89–16
29
Rather, we find that employees would reasonably understand the rule's requirement that
they communicate “in a manner that is conducive to effective working relationships” with
coworkers and management as prohibiting disagreements or conflicts, including
protected discussions, that the Respondent subjectively deems to not be conducive to “a
positive work environment.” See, e.g., Hills & Dales General Hospital, 360 NLRB No. 70, 5
slip op. at 2 (2014), appeal dismissed, 2015 WL 3372275 (D.C. Cir. 2015) (finding rule
requiring employees to represent the hospital “in the community in a positive and
professional manner” just as overbroad and ambiguous as unlawful proscriptions of
negative comments or attitude); cf. Claremont Resort & Spa, 344 NLRB 832, 832 (2005)
(finding rule prohibiting “““negative conversations” about coworkers and managers 10
unlawful).8 Moreover, employees would read the rule in context with other work rules,
found unlawful here, prohibiting employees from “arguing” and from making
“““detrimental” comments about the Respondent. Because labor disputes and union
organizing efforts frequently involve controversy, criticism of the employer, arguments,
and less-than-“positive” statements about terms and conditions of employment, 15
employees reading the rule here would reasonably steer clear of a range of potentially
controversial but protected communication in the workplace for fear of running afoul of
the rule.
The Respondent contends that, because the rule sets out the business-related
objectives of “efficiency, productivity and cooperation,” employees would reasonably 20
understand that the rule is not intended to restrict Section 7 activity. We disagree.
Those terms refer to the expectation that employees behave in a professional manner as
set forth in the first sentence of the provision, which is not alleged to be unlawful. They
do not provide employees with a basis for determining what communications would fail
to contribute to “effective working relationships” or “maintain a positive work 25
environment.” Nor do those words shed light on how the Respondent would enforce the
provision in the context of Section 7-protected discussions that the Respondent views as
undermining a positive work environment. As explained in Whole Foods Market, 363
NLRB No. 87, slip op. at 4 fn. 11 (2015), “[w]here reasonable employees are uncertain
as to whether a rule restricts activity protected under the Act, that rule can have a chilling 30
effect on employees' willingness to engage in protected activity.”
***
2. Also since at least January 16, 2014, the Respondent promulgated and has
maintained the following handbook rule prohibiting employees from making recordings in
the workplace:35
To prevent harassment, maintain individual privacy, encourage open
communication, and protect confidential information employees are prohibited
from recording people or confidential information using cameras, camera
phones/devices, or recording devices (audio or video) in the workplace. Apart
from customer calls that are recorded for quality purposes, employees may not 40
tape or otherwise make sound recordings of work-related or workplace
discussions. Exceptions may be granted when participating in an authorized
TMUS activity or with permission from an employee's Manager, HR Business
Partner, or the Legal Department. If an exception is granted, employees may not
take a picture, audiotape, or videotape others in the workplace without the prior 45
notification of all participants.
***
For the following reasons, we reverse the judge and find the violation.
After the judge's decision issued, the Board issued decisions in Rio All-Suites Hotel &
Casino, 362 NLRB No. 190, slip op. at 4 (2015), and Whole Foods, above, finding that 50
JD–89–16
30
employer rules broadly prohibiting recording in the workplace on employees' own time
and in nonwork areas restricted Section 7 activity in violation of Section 8(a)(1) of the
Act. As the Board explained in those decisions, photography and audio or video
recording in the workplace, as well as the posting of photographs and recordings on
social media, may be protected by Section 7 if employees are acting in concert for their 5
mutual aid and protection and no overriding employer interest is present. Whole Foods,
above, slip op. at 3, citing Rio All-Suites, above, slip op. at 4. Such protected conduct
may include, for example, recording images of protected picketing, documenting unsafe
workplace equipment or hazardous working conditions, documenting and publicizing
discussions about terms and conditions of employment, documenting inconsistent 10
application of employer rules, or recording evidence to preserve it for later use in
administrative or judicial forums in employment-related actions. Id.10
The rule at issue here bans employees from recording “people or confidential
information using cameras, camera phones/devices, or recording devices (audio or
video) in the workplace” and, except for calls that the Respondent records for quality 15
purposes, prohibits employees from making “sound recordings of work-related or
workplace discussions.” The rule does not differentiate between recordings that are
protected by Section 7 and those that are not, and includes in its prohibition recordings
made during nonwork time and in nonwork areas. The Respondent does not deny that
the rule prohibits all recording and makes no exception for protected concerted activity. 20
Accordingly, because of the rule's broad language, employees would reasonably read
the rule to prohibit recording that would be protected by Section 7 of the Act. Rio All-
Suites, above, slip op. at 5 (finding broad prohibition on workplace recording unlawful
because employees “would reasonably interpret these rules to infringe on their protected
concerted activity”); accord: Whole Foods, above, slip op. at 3.1125
The Respondent contends that the recording restriction is justified by its general
interest in maintaining employee privacy, protecting confidential information, and
promoting open communication. That the Respondent's proffered intent is not aimed at
restricting Section 7 activity does not cure the rule's overbreadth, as neither the rule nor
the proffered justifications are narrowly tailored to protect legitimate employer interests 30
or to reasonably exclude Section 7 activity from the reach of the prohibition. As for
protecting ““confidential information,” the Respondent has not excepted to the judge's
findings that it unlawfully maintained other rules classifying employee information,
including employee contact information and wage and salary information, as confidential.
The Respondent also asserts that its recording prohibition is in place to prevent 35
harassment and notes that, under federal and state laws, employers have an affirmative
obligation to prevent harassing conduct. But the recording prohibition is not narrowly
tailored to this interest; it neither cites laws regarding workplace harassment nor
specifies that the restriction is limited to recordings that could constitute unlawful
harassment.12 Thus, the Respondent's proffered rationales cannot justify the rule's 40
broad restriction that employees would reasonably read as prohibiting activity protected
by Section 7. See Whole Foods, above, slip op. at 4 (finding employer's interests in
preserving employee privacy, protecting confidential information, and encouraging open
communication insufficient to justify broad and unqualified prohibition on recording).13
Accordingly, we find that employees would reasonably construe the rule to restrict 45
activity protected by Section 7 of the Act, and that the Respondent's promulgation and
maintenance of the rule violates Section 8(a)(1) of the Act as alleged.
In Whole Foods Market, Inc., 363 NLRB No. 87, slip op. at 4 (2015), the Board majority stated:
50
JD–89–16
31
Moreover, our case law is replete with examples where photography or recording, often
covert, was an essential element in vindicating the underlying Section 7 right.8 Our case
law, therefore, supports the proposition that photography and audio and video recording
at the workplace are protected under certain circumstances.9
5
It was also stated in Whole Foods Market, Inc., above, slip op. at 4 fn. 10 that:
The Respondent contends that the rules are not unlawful because they are limited to
recording that takes place on working time, and do not apply when the employee is not
at work, or is on nonwork time such as break time. We reject this argument. The rules do 10
not differentiate between recording on working and nonworking time.
We also find that the rules are unlawful because they require employees to obtain the
employer's permission before engaging in recording activity on nonwork time. The Board
has stated that any rule that requires employees to secure permission from their
employer as a precondition to engaging in protected concerted activity on an employee's 15
free time and in nonwork areas is unlawful. See Brunswick Corp., 282 NLRB 794, 795
(1987) (rule found unlawful that required employees to obtain the employer's permission
before engaging in union solicitation in work areas during nonworking time and required
the employer's authorization in order to solicit in the lunchroom and lounge areas during
breaks and lunch periods); American Cast Iron Pipe Co., 234 NLRB 1126, 1131 (1978) 20
(finding unlawful rule requiring employees to obtain permission before distributing union
literature in nonwork areas on nonworking time), enfd. 600 F.2d 132 (8th Cir. 1979). See
also Rio All-Suites Hotel & Casino, supra, 362 NLRB No. 190, slip op. at 4 fn. 10 (“Of
course, the fact that these prohibitions are subject to discretionary exemptions by the
Respondent does not make them any less unlawful.”).25
I find the rule in Respondent’s 2015-2016 Policy Handbook #2500 pertaining to the non-
disclosure and confidentiality policy is unlawfully overbroad in violation of Section 8(a)(1) of the
Act. The rule provides that, “Photography and all types of recording are restricted on all
company property and cannot take place without prior written permission from the Director of 30
Operations.” It further states all images taken by employees and/or visitors remain solely the
property of MWTTI or MWTT, including any image or recording taken with a personally owned
cell phone camera or other digital imaging device.” Thus, the rule prohibits all photography and
recording, without prior approval of the Director of Operations, and therefore unlawfully restricts
the engagement of protected activity. See, T-Mobile USA, Inc., above, and Whole Foods 35
Market, Inc., above. The rule on its face is overly broad in that it treads on employee Section 7
rights by providing that, “Employees who improperly use or disclose…confidential business
information, to include information regarding labor relations, will be subject to disciplinary action,
including termination of employment and legal action, even if they do not actually benefit from
the disclosed information.” It states “Marketing documents specific to a customer, all contact 40
information, all accounting data, all personnel information, and union related business are
considered confidential business information and should be guarded as such.” Thus, the rule
provides that disclosing of labor relations information, personnel information, and union related
business are considered to be disclosing confidential information and subject to discharge. The
rule therefore explicitly restricts activities protected by Section 7 of the Act. See, Cintas Corp,45
344 NLRB 943 (2005), enfd., 482 F.3d 463 (D.C. Cir. 2007), (rule could be reasonably
construed by employees to restrict discussion of wages and other terms and conditions of
employment with their fellow employees and with the Union violates Section 8(a)(1)); Lily
Transp. Corp., 362 NLRB No. 54 (2015) (maintaining a rule preventing disclosure of confidential
information, including Company, customer information and employee information maintained in 50
JD–89–16
32
confidential personnel files violated Section 8(a)(1); and IRIS U.S.A., Inc., 336 NLRB 1013
(2001).
Respondent argues that the language does not prohibit photographs, it only restricts
them. It asserts Respondent is a secure facility, and the language is meant to keep out of the 5
public eye the type of cargo coming into the port for security reasons. I do not find the sweeping
nature of the language here justified by the announced security concerns, nor is there any
suggestion here that there was an attempt to temper the language to do so. Some of the
products which Respondent seeks to conceal are listed in the parties’ CBA, a public document,
and others are provided to the Union in MSDS lists. In fact, Blakely testified concerning the 10
implementation of Respondent’s video policies that the General Counsel introduced in evidence
a video made by an employee who was a union official at a prior NLRB trial. However, I find
Respondent was more concerned that an employee would gather evidence to be used against it
at a Board proceeding then possible security concerns raised by the video. Otherwise,
Respondent would not have introduced the same video on its own volition at the current NLRB 15
hearing. The video introduced at the current trial by Respondent is a short, but distant snippet
of alleged Teamsters moving what is described by the videographer as calcium bags while
claiming the Teamsters were doing “our” work. Calcium chloride is listed as an “Obnoxious and
Distressed” cargo in the CBA. The sweeping nature of Respondent’s language in its rules
shows more an intent to quell protected activity than to alleviate security concerns. 20
Respondent’s 5 year security plan approved by the Coast Guard was already in effect at the
time this rule was implemented, and Leach testified there were only minor changes to the plan
pertaining to signage, which were initiated by the Coast Guard. Thus, there is no claim that
these broad restrictions curtailing Section 7 rights were required by the plan, or even that they
were reported to the Coast Guard. Moreover, concerns expressed by Blakely concerning the 25
use of a cell phone while operating Respondent’s equipment are prohibited by other of
Respondent’s policies not challenged here.
Respondent also argues the Region did not challenge the maintenance of some of the
then existing rules when Respondent’s rules were involved in an unfair labor practice charge 30
filed in 2014. However, correspondence concerning that charge as well as Respondent’s
position statement pertaining thereto reveals these issues were not being considered by the
Region at that time. Moreover, since the continued maintenance of unlawfully restrictive work
rules is in itself a violation of the Act, the dismissal a prior unfair labor practice charge does not
impact on a finding of a violation here. 35
For similar reasons I find Respondent’s Confidentiality Agreement Policy #2550 overly
broad and unlawful in that it provides that employees must “M]aintain the confidentiality of ALL
documents, credit card information, and personal information of any type and that such
information may only be used for the intended business purpose. Any other use of said 40
information is strictly prohibited and is cause for immediate dismissal. Additionally, should
[employees] misuse or breach, any personal information or the expectation of privacy of said
clients and/or employees; [employees] understand that [they] will be held fully accountable both
civilly and criminally, which may include, but not limited to, Federal and State fines, criminal
terms, real or implied financial damages incurred by the client, employee, or this company. It is 45
clear here that the rule requires “ALL documents” including personal information of any type” to
be kept confidential. This, along with the caution against breach of an expectation of privacy,
could be reasonably construed to restrict conversation about or disclosure of wages and
benefits. The sharing of this type of information between coworkers and their union
representatives is grist for protected conduct and union activities, and the threat of discharge 50
JD–89–16
33
and legal action for using this information in this context could reasonably be interpreted to
restrict conduct protected by Section 7 of the Act. See, also Costco Wholesale Corp., 358 NLRB
1100 (2012) and the cases cited therein.
The policy enunciated in Respondent’s Policy Handbook entitled “Safe Workplace 5
Environment #4500” policy prohibits an employee from “[v]iolating others’ expectation of
privacy”. The policy is among a list of policies subjecting an employee to immediate discharge.
I find the rule as overly broad, as it does not define what is to be kept private, and given the
context of the other rules set forth above, it can clearly encompass terms and conditions of
employment such as an employee’s wage rates. See, Costco Wholesale Corp., above, where a 10
rule that employees shall refrain from discussing private matters of members and other
employees, including topics such as, but not limited to, sick calls, leaves of absence, FMLA call-
outs, ADA accommodations, workers' compensation injuries, personal health information, etc.
was found to violate the Act. While the rule in the current case did not specifically define as the
rule in Costco matters that were terms and conditions of employment, it certainly could be read 15
by a reasonable employee to include such. See for example Flamingo Hilton-Laughlin, 330
NLRB 287, 288 fn. 3 (1999), where a prohibition on employees revealing confidential
information about “fellow employees” was found to be overly broad and unlawful; and IRIS
U.S.A. Inc., 336 NLRB 1013 (2001), where a handbook rule instructing employees to keep
information about employees strictly confidential was found violative of the Act.20
Respondent also maintains a rule in its policy handbook entitled “Safe Workplace
Environment #4500 which prohibits “[l]oitering or presence on the jobsite without authorization
before or after assigned shift is completed..”. The Board has found similar no loitering rules
unlawful in Palms Hotel & Casino, 344 NLRB 1363, 1363, 1391 (2005); Lutheran Heritage 25
Village - Livonia, 343 NLRB 646, 649 fn. 16, 655 (2004); Ark Las Vegas Restaurant Corp., 343
NLRB 1281 (2004); and Tri-County Medical Center, 222 NLRB 1089 (1976). In Palms Hotel &
Casino, a Board majority found in agreement with the judge that a rule prohibiting employees
from “loitering in company premises before and after working hours” violated Section 8(a)(1).
344 NLRB 1363, at fn. 3. The Board adopted the judge’s rationale that the rule violated Section 30
8(a)(1) because the undefined terms “loitering” and “premises” could lead off-duty employees to
conclude they could not engage in protected activities with other employees in nonworking
areas of Respondent's property. In Lutheran Heritage Village - Livonia, above, at 655 the rule
found to violate Section 8(a)(1) of the Act prohibited, “Loitering on company property (the
premises) without permission from the Administrator.” The judge found with Board approval that 35
“loitering” is undefined and can reasonably be read to prohibit off-duty employees from
engaging in protected communications with other employees in nonworking areas of the
Respondent's property. It was also stated, that the term premises is not defined and employees
could reasonably conclude that they could not engage in protected communications in the
parking lot either before or after work. 40
In the present case the rule in question uses the term “loitering” which the Board has
found can be sufficient to chill employees in the exercise of their Section 7 rights. However,
Respondent goes further and erases any possible argument concerning the term loitering by
also barring employees “presence on the jobsite without authorization before or after their 45
assigned shift is completed.” This clearly eradicates the possibility of off duty employees
participating in protected conduct inside and outside Respondent’s facility for the entire jobsite
which would encompass work and nonwork areas and I find the maintenance of said rule
violates Section 8(a)(1) of the Act. I do not find Respondent’s argument that since the facility is
a secure facility, that employees need a TWIC to enter it through secure gates, allows 50
JD–89–16
34
Respondent to limit access to the entire jobsite for participation in off duty protected
communications. Respondent has a 110 acre facility, which could be interpreted to include the
whole jobsite. Employees are required to pass a background check to obtain passes to be
present on the site. Having passed the background check, the Respondent has provided no
basis to preclude them from engaging in off duty access normally accorded employees for 5
participation in protected conduct.
Respondent maintains several rules pertaining to the use of recordings at its facility.
The Board in T-Mobile USA, Inc., above, relying on the Board’s decisions in decisions in Rio All-
Suites Hotel & Casino and Whole Foods, found employer rules there broadly prohibiting 10
recording in the workplace on employees' own time and in nonwork areas restricted Section 7
activity in violation of Section 8(a)(1) of the Act. It was stated, that photography and audio or
video recording in the workplace, as well as the posting of photographs and recordings on social
media, may be protected by Section 7 if employees are acting in concert for their mutual aid and
protection and no overriding employer interest is present. In T-Mobile a rule that banned 15
employees from employees from recording people or confidential information using cameras,
camera phones/devices, or recording devices (audio or video) in the workplace and which
prohibits employees from making sound recordings of work-related or workplace discussions
was found to have violated the Act. There, the rule did not differentiate between recordings that
are protected by Section 7 and those that are not, and included in its prohibition recordings 20
made during nonwork time and in nonwork areas. It was found that because of the rule's broad
language, employees would reasonably read the rule to prohibit recording that would be
protected by Section 7 of the Act. The Board rejected the respondent’s contention that the
recording restriction is justified by its general interest in maintaining employee privacy,
protecting confidential information, and promoting open communication finding the respondent’s 25
proffered intent did not cure the rule's overbreadth, since neither the rule nor the proffered
justifications were narrowly tailored to protect legitimate employer interests or to reasonably
exclude Section 7 activity from the reach of the prohibition. It was noted that as to the
“confidential information” aspect of the rule the respondent did not except to the judge’s findings
that it unlawfully maintained other rules classifying employee information, including employee 30
contact information and wage and salary information, as confidential. The respondent’s
contention that the recording prohibition was to prevent harassment and employers have an
affirmative obligation to prevent harassing conduct was also rejected by the Board because the
recording prohibition was not narrowly tailored to this interest. It was concluded that the
respondent's proffered rationales cannot justify the rule's broad restriction that employees would 35
reasonably read as prohibiting activity protected by Section 7. Moreover, as stated in Whole
Foods, Inc., and other cases cited above, rules are unlawful when they require employees to
obtain the employer's permission before engaging in recording activity on nonwork time.
In the instant case, I have found, as set forth above, that the maintenance of 40
Respondent’s Non-Disclosure/Confidentiality Policy #2500 pertaining to photography and
recording is violative of Section 8(a)(1) of the Act. For the same reasons enunciated above, I
find Respondent’s maintenance of a policy in its 2015-2016 Safety Handbook under Driver
Safety Requirements that states “[p]hotography and recording are restricted at this facility at all
times;” and that under The Visitor Safety Requirements that states that “[p]hotography and 45
recording are restricted at this facility at all times,” are violative of Section 8(a)(1) of the Act.
These rules preclude photography and recording without limitation, and do not provide for
protection for such conduct that constitutes protected activity by employees; and/or for visitors
such as union officials who may be lawfully investigation matters pertaining to employee safety
and/or working conditions in general.50
JD–89–16
35
Respondent’s Camera, Cell, Digital Device Policy #3100 provides that employees and
visitors are prevented from “the improper disclosure of company trade secrets and confidential
business information.” As previously stated, Respondent’s definition of confidential information
includes matters pertaining to labor relations, and therefore is overbroad. Policy #3100 contains 5
the statement that “Under the General Policy, Digital Equipment Usage, that the “[u]se of
cameras, whether cell phone cameras, stand-alone cameras, or cameras contained on any
other devices, whether digital or conventional film cameras—while on duty or when performing
any function for or on behalf of the company –is restricted. This policy applies to all full-time
and part-time employees and visitors.” I do not find that the term on duty sufficiently alerts 10
employees’ to permissible usage during not working time. This ambiguity would serve to
restrain legitimate usage during non- working time. The statement, “Under Cellular Telephone
Use, that “[o]n-duty use of cell phones to send electronic mail is expected to comply with
company rules and policies including sexual harassment, discrimination, ethics, code of
conduct, confidentiality and workplace violence” again is ambiguous in that it does not 15
adequately distinguish between working and not working time, and the use of such terms as to
comply with company rules and confidentiality, particularly the way the latter terms has been
defined by Respondent will serve to inhibit participation in protected concerted activities.
Moreover, the statement, “Under Camera Use, that “[e]mployees while on duty and/or on facility
property shall not be permitted to use cameras or other audio, picture, video, or image 20
generating devices — including cell phone cameras — without prior written authorization from
the Facility Security Officer or his designee,” reveals an intent to prohibit all camera usage
during working and non-working time, and the Board has rejected employer policies that require
employer approval for employees to participate in activities protected by the Act. I also do not
find this rule to be sufficiently narrowly drafted to meet any legitimate security concerns raised 25
while protecting Section 7 rights. I therefore find the maintenance of the described policies
violative of Section 8(a)(1) of the Act.
For the same reasons, I find the below policies in rule #3100 violative of Section
8(a)(1) of the Act because they explicitly inhibit conduct protected by the Act as they 30
require clearance from Respondent’s personnel, limit recordings only to investigatory
purposes, and grant ownership of certain recordings to Respondent, and across the
board inhibit conduct some which would be protected by the Act.
Under Camera Use, that “[a]ll on-site photography or recording shall 35
be for documentation or investigation purposes only and conducted at the
direction or authorization of the Facility Security Officer or his designee.”
Under Camera Use, that “[a]ny photographs or recordings taken by an
employee while on duty or facility visitor while on site are solely the
property of MWTTI and/or MWTT and not the property of the individual. 40
This includes any photograph or recording inadvertently taken with a
personally owned cell phone camera or other digital imaging or recording
device.”
Under Camera Use, that “[n]o photograph or recording (taken by an
employee on duty or a facility visitor) may be used, printed, copied 45
scanned, e-mailed, posted, shared or distributed in any manner without
the express, written approval of the Facility Security Officer or his
designee.
Example: This prohibition includes but is not limited to posting
photos or videos on Websites such as FaceBook, Instagram, 50
JD–89–16
36
SnapChat, Twitter, YouTube, or MySpace, or on other websites or
e-mailing to friends, colleagues or others.”
I also find the maintenance of the following rule to be violative of the Act, “Under
Camera Use, that “[e]mployees may not take or use images or recording to harass, 5
embarrass, annoy others and/or violate an individual’s expectation of privacy. All
company policies, including policies on harassment, discrimination, and (professional)
conduct, apply to photographs and/or recordings taken.” While this rule does not
explicitly restrict activities protected by Section 7, it must be read in the context of
Respondent’s other rules which do. I find that employees would reasonably read the 10
rule to prohibit protected conduct. The rule here broadly restricts this form of employee
communications and is not limited to conduct that would objectively be viewed as
unprotected. Rather, statements such as annoy others; violate an individual’s
expectations of privacy, or adhere to Respondent’s policies on professional conduct
would reasonably lead employees to believe they are being restricted from disagreeing 15
with management and/or co-workers concerning terms and conditions of employment
and or from documenting work place transgressions for the grievance procedure and/or
safety concerns for fear that they would be perceived of annoying someone, including
the powers that be. See, T-Mobile USA, Inc., 363 NLRB No. 171, slip op. 1-5 (2016), for
the discussion and cases cited therein.20
In the current case, the complaint alleges Respondent, in violation of Section 8(a)(1) of
the Act, has maintained in in its 2015-2016 Safety Handbook, The Incident Reporting Policy
#1600 stating that “Because it is likely that incidents involving hospitalization or a fatality will
result in litigation, all reports and related documentation, including photographs…shall be 25
marked as follows: “PRIVILEGED AND CONFIDENTIAL – ATTORNEY WORK PRODUCT
PREPARED IN ANTICIPATION OF LITIGATION.” It further states, that “[n]o incident report or
related documents shall be disclosed to anyone outside of MWTTI unless authorized to do so by
Alex Johnson, President and CEO.” This policy appears to be overbroad in that it appears to
prevent employees from sharing all photographs and/or other documents relating to incidents 30
involving hospitalization or fatalities with their co-workers, union, or government agencies. This
rule broadly limits protected activities pertaining safety conditions at work, and as such, I find
that it violates Section 8(a)(1) of the Act.
In this regard, the Board has held that a supervisor’s instructing an employee pertaining 35
to allegations of sexual harassment in the work place by a USDA inspector that they were to
confine their discussion of their problem to that management official or their immediate
supervisor was violative of Section 8(a)(1) of the Act as the rule was so broad that it precluded
the discussion of sexual harassment with other employees or bringing it to the attention of her
union representative. See All American Gourmet, 292 NLRB 1111, 1130 (1989). See also, In 40
Re Phoenix Transit System, 337 NLRB 510 (2002), enfd., 63 Fed. Appx. 524 (D.C. Cir. 2003),
where the Board held the respondent violated Section 8(a)(1) of the Act by maintaining a
confidentiality rule prohibiting employees from discussing their sexual harassment complaints
among themselves. The Board found the respondent has failed to establish a legitimate and
substantial justification for its rule. In Fresh & Easy Neighborhood Mkt., Inc., 361 NLRB No. 12, 45
slip op. at 8 (2014) the Board stated as follows:
There is no question that, as a general matter, employees have a Section 7 right to
discuss with one another ongoing employer investigations into alleged employee
misconduct, including allegations of sexual harassment.23 Indeed, to prohibit such 50
JD–89–16
37
discussions, an employer bears the burden of showing that it has a legitimate business
justification that outweighs employees' Section 7 rights. See Hyundai America Shipping
Agency, 357 NLRB No. 80, slip op. at 15 (2011). In the particular circumstances of this
case, we find that the Respondent made that showing.
5
There, it was noted that an employer under certain circumstances is responsible for acts of
sexual harassment in the workplace. It was found the supervisor’s instructions to the employee
were limited in that the employee was instructed not to obtain additional statements from her co-
workers in connection with the complaint. It was found the instruction was narrowly tailored to
address the need to conduct an impartial and thorough investigation. It was noted the 10
employee was not prohibited from discussing the pending investigation with her coworkers,
asking them to be witnesses for her, bringing subsequent complaints, or obtaining statements
from coworkers in future complaints. It was found the instruction would reasonably be viewed
as seeking to safeguard the integrity of the investigation, not restrict the employee in the
exercise of her Section 7 rights. The Board found the narrowly tailored instruction in the 15
circumstances there did not violate the Act. In the instant case, I do not find Respondent’s rule
to be narrowly tailored, time limited, or otherwise justified by any evidence placed on this record.
2. The Section 8(a)(5) and (1) allegations pertaining to Respondent’s
March 2015 handbook changes20
When employees are represented by a union, an employer violates Section 8(a)(5) and
(1) of the Act by making a unilateral changes regarding terms and conditions of employment
regarding a mandatory subject of bargaining. See, NLRB v. Katz, 369 U.S. 736, 747 (1962);
Whitesell Corp., 357 NLRB 1119, 1171 (2011); Ivy Steel & Wire, Inc., 346 NLRB 404, 419 25
(2006); and Associated Services for the Blind, 299 NLRB 1150, 1164-1165 (1990). An
employer's obligation to refrain from unilateral changes to mandatory subjects of bargaining
applies when the parties' existing agreement has expired and negotiations have yet to result in
a successor agreement. Lincoln Lutheran of Racine, 362 NLRB No. 188 (2015). In those
circumstances the employer must continue to abide by established terms and conditions of 30
employment until the parties either negotiate a new agreement or bargain to a lawful impasse.
Id. See also, Register-Guard, 339 NLRB 353 (2003). Changes in work rules, particularly when
they can result in disciplinary action constitute a mandatory subject of bargaining. See, Toledo
Blade Co., 343 NLRB 385, 387 (2004); and General Die Casters, Inc., 359 NLRB 89 (2012)
(Changing work rule pertaining to an employee handbook found to violate Section 8(a)(5) of the 35
Act.). Work place safety is also a mandatory subject of bargaining. See, Castle Hill Health Care
Center, 355 NLRB 1156, 1183 (2010); Kohler Mix Specialties, 332 NLRB 631, 632 (2000); and
Minnesota Mining & Mfg. Co., 261 NLRB 27, 29 (1982), enfd. 711 F2.d 348 (D.C. Cir. 1983).
The complaint alleges Respondent violated Section 8(a)(5) and (1) of the Act by since
March 1, 2015, unilaterally changing its Policy Handbook policy #2500 pertaining to camera 40
usage; unilaterally changing its Policy Handbook policy #3100 pertaining to camera, digital
device, and email usage; unilaterally promulgating and implementing its Safety Handbook’s
driver safety requirement, unilaterally promulgating and implementing its Safety Handbook’s
visitor safety requirement; and unilaterally promulgating and implementing a 2015-2016 ILA
Standard Operating Procedures handbook.45
Respondent’s 2015-16 Policy Handbook provides for a progressive disciplinary
policy stating that “Disciplinary action may be required for violations of company policy or
for engaging in an at-risk behavior.” It later states, “An at-risk behavior is a behavior that
JD–89–16
38
has the potential to cause serious harm to one’s self, other employees, customers,
visitors, property and/or the environment. Managers and supervisors are responsible for
ensuring that employees follow all safety policies.”
New language in 2015-16 Policy Handbook #2500 that was not in the predecessor policy 5
handbook is:
Photography and all types of recording are restricted on all company property and
cannot take place without prior written permission from the Director of Operations. All
images and recordings taken by…employees and/or visitors remain solely the property 10
of MWTTI or MWTT, including any image or recording taken with a personally owned
cell phone camera or other digital imaging device.
There is also new language in Policy #2500 pertaining to the section on Marketing documents
pertaining to “photographs and recordings. Employees, by the terms of Policy #2500 were 15
required to sign for its receipt, and were told the violation of it would subject them to disciplinary
action, including termination.
The language in Policy #3100 in the 2015-16 Policy Handbook pertaining to
camera, digital device, and email usage; was greatly expanded from that included in the 20
prior handbook. The language in the predecessor handbook mainly only limited the use
of a cell phone when operating equipment. The employees were required to sign for the
2015-16 version of the policy and by the terms of the policy handbook itself they were
subject to disciplinary action for violating the policy.
25
In the 2015-16 Policy Handbook “Safe Workplace Environment #4500” states an
employee can be disciplined or discharged for failure to report a known violation of this
Safe Workplace Environment Policy. In Respondent’s 2015-16 Safety Handbook,
Respondent added two new sections, one pertaining to driver safety and the other
pertaining to visitor safety. Blakely testified that it was incumbent on employees to 30
report violations of these policies to management. Implicit in this reporting requirement
as pronounced by Blakely is that failing to make such a report could subject an
employee to discipline.
Respondent also introduced to employees at its March annual meeting the 2015-35
16 ILA Standard Operating Procedures. The origination of this manual was the result of
a March 2014 settlement agreement with OSHA requiring Respondent to document its
standard operating procedures. At the start of this manual, employees are cited to
related documents including Respondent’s Policy Handbook, Safety Handbook, Work
Rules in the parties expired CBA, OSHA Regulations, among others. They are also 40
referenced to various CBA work rules, and the safety and policy handbooks in the
discussion pertaining to the individual operating procedures. The reference to the policy
and safety manuals, and the CBA work rules clearly implies the potential for disciplinary
action for employees failing to following the operating procedures. The formalization of
these operating procedures involved work place safety stemming from an OSHA 45
settlement.
The alleged unilateral changes in the complaint, as described above, are substantial and
they involve work rules the failure of which to follow an employee can be disciplined and even
discharged. The rule change in the Safety Handbook and in the ILA Standard Operating 50
JD–89–16
39
Procedures also involve issues of safety, all of which are mandatory subjects of bargaining.
See, Toledo Blade, above; General Die Casters, Inc., above; Castle Hill Health Care Center,
above; Kohler Mix Specialties, above; and Minnesota Mining & Mfg. Co., above. Moreover, I
find these changes were handed out to Union officials who were employees at the time they
entered the March 21, 2015 mandatory annual safety meeting at the same time they were 5
handed out to all bargaining unit employees. At the time the employees were required to sign
for the receipt of these policies. Therefore all of these policies were implemented at the same
time they were disclosed to employees who happened to be union officials. Respondent
engaged in a similar tactic at the March 2014 annual safety meeting, which according to Leach
resulted in a protest by employees who were also union officials who attended that meeting, 10
over the then implemented unilateral changes, as well as the Union’s subsequent filing of an
unfair labor practice charge against Respondent over the 2014 changes. The unfair labor
practice charge was subsequently dismissed with a short form dismissal letter, which did not
provide specific reasons for the dismissal. Regardless, of the reasons for the dismissal,
Respondent, prior to March 2015, was aware that the Union objected to unilateral changes in its 15
policy manuals. See, PRC Recording Co., 280 NLRB 615, 636 (1986).
Nevertheless, Respondent, undaunted and perhaps emboldened by the dismissal of the
prior unfair labor practice charge, engaged in more unilateral changes in March 2015. The
OSHA settlement required Respondent to incorporate a labor representative in the drafting of 20
the standard operating procedures. Respondent’s officials testified in a tongue in cheek fashion
concerning this aspect of the settlement. Although Respondent was in negotiations for a new
CBA with Union President Brown, and Union Vice President Hubbard, and was aware that
Brown was the head of the Union’s safety committee, Respondent did not reach out to them or
otherwise inform the Union that it was creating the ILA Standard Operating Procedures manual. 25
In fact, Brown and Hubbard’s letters to Blakely in March 2015, reveal that Brown participated in
the OSHA proceeding on behalf of the Union. Respondent’s ILA SOP manual shows it was
originated on April 26, 2014, and revised on May 6, 2014. Yet, the Union was never provided
an advanced copy, or offered an opportunity to negotiate over its terms. Rather, Respondent’s
witnesses testified that the Union was represented in the drafting of the document by union 30
member foreman Juan Rizo, although there was no claim that Rizo was a union official, or that
Respondent was ever informed of such. Blakely, who touted his prior experience as a union
official in the teachers union, it seems should have known better. Moreover, Respondent’s
history of union animus as found in a prior Board and judges decisions, in particular, directed at
Brown and Hubbard, indicates it was Respondent’s intent to bypass these union officials and in 35
turn undermine the union by its unilateral conduct. Regardless, of the literal wording of the
OSHA settlement using the term “labor representative,” Respondent’s employees were
represented by a Union and Respondent had an obligation to bargain with that union and did
not have a right to pick its own labor representative and avoid its statutory obligations. In
Whitesell Corp., 357 NLRB 1119, 1142 (2011), it was stated, “’[E]ach party to a collective 40
bargaining relationship has both the right to select its representative for bargaining and
negotiations and the duty to deal with the chosen representative of the other party.’ Fitzsimmons
Mfg. Co., 251 NLRB 375, 379 (1980), enfd. sub nom. Auto Workers v. NLRB, 670 F.2d 663 (6th
Cir. 1982).”11

11 Respondent argues that the Union, knowing of the March 2014 OSHA settlement waited
until March 2015, to notify Respondent of its labor representative pertaining to the drafting of the
Standard Operating Procedures. I reject this argument, for as set forth above, it was incumbent
on Respondent to notify the Union of its planned changes in a timely fashion, and afford the
Union an opportunity to bargain. Juan Rizo’s being a bargaining unit member did not constitute
JD–89–16
40
I also do not find the Union’s failure to request bargaining about the Respondent’s
unilateral changes made at the March 21, 2015 meeting, following that meeting constitutes a
waiver pertaining to those changes. Both Brown and Hubbard sent letters to Blakely in advance
of the meeting protesting any potential changes relating to the OSHA settlement, and Brown in 5
particular concerning the implementation of Respondent’s other policies. Hubbard also objected
to Respondent’s new policy manuals immediately before and during the March 21 meeting on
behalf of the Union. Nevertheless, Respondent’s officials handed out the policy manuals at the
meeting to the employees, had them sign for them and implemented them over the Union’s
protest. An employer has an obligation to provide a union with notice and a meaningful 10
opportunity to bargain concerning changes to terms and conditions of employment. In Defiance
Hospital, 330 NLRB 492, 493 (2000), the Board stated:
“It is settled law that an employer violates Section 8(a)(5) and (1) if a material change
in the conditions of employment is made without consulting with the employees' 15
bargaining representative and providing a meaningful opportunity to bargain.” Ciba-
Geigy Pharmaceuticals Division v. NLRB, 722 F.2d 1120, 1126 (3d Cir. 1983). “An
employer must inform the union of its proposed actions under circumstances which at
least afford a reasonable opportunity for counter arguments or proposals.” NLRB v.
Centra, 954 F.2d 366, 372 (6th Cir. 1992). “If a policy is implemented too quickly after 20
notice is given, or an employer has no intention of changing its mind, the notice
constitutes nothing more than informing the union of a fait accompli.” Id.
***
“By announcing the [wage increase] to the [Unions] at the same time as all other
employees, the Respondent essentially ignored the representative status of the 25
employees' bargaining agent. Such failure to acknowledge the [Unions'] proper role in
negotiating terms and conditions of employment severely diminished, if not effectively
foreclosed, any meaningful opportunity for the [Unions] to exercise [their] authority in any
subsequent discussion of this matter.” Roll & Hold Warehouse & Distribution Corp., 325
NLRB 41, 42 fn. 4 (1997), enfd. 162 F.3d 513 (7th Cir. 1998). See Ciba-Geigy 30
Pharmaceuticals Division, 264 NLRB 1013, 1017 (“most important factor” dictating
finding that employer's announcement of change was “fait accompli” was that the union
was notified at the same time as the employees), enfd. 722 F.2d 1120 (3d Cir. 1983).
In Mercy Hospital of Buffalo, 311 NLRB 869, 873 (1993), it was stated: 35
Finally, we reject the Respondent's contention that the Union waived the right to bargain
about the changes in cafeteria hours. Regarding the May 19 discontinuance of the 2 to
4 a.m. weekend hours, we find no merit in the Respondent's contention that its rejection
of the Union's May 15 proposal constituted bargaining. The parties stipulated that the 40
Respondent instituted the May 19 changes without prior notice to the Union and without
affording the Union an opportunity to bargain. In the absence of clear notice of the

notice to the Union, as Rizo has no special status with the Union, was a foreman, was only one
person in a fairly large unit, and Respondent had no reasonable expectation that Rizo would
have notified union officials of the drafting of the SOP. See Stone Boat Yard v. NLRB, 715 F.2d
441, 445 (9th Cir.1983) (concluding that knowledge possessed by union members was not
attributable to union because there was no evidence in the record that the members were
agents of the union). See also, See, also Brimar Corp., 334 NLRB 1035, 1037 fn. 1 (2001); and
Catalina Pacific Concrete Co., 330 NLRB 144 (1999).
JD–89–16
41
intended change, there is no basis on which to find that the Union waived its right to
bargain. See Fountain Valley Regional Hospital, 297 NLRB 549, 551 (1990).
In the instant case, Respondent presented the policy changes in dispute to the employees and
the Union at the March 21 meeting as a fait accompli. It undermined the Union by its conduct, 5
and the Union was not required to request bargaining in the circumstances here.12
Respondent claims the Union waived its right to bargain over work rules in March 2015
by Respondent’s unilateral implementation of rules in the past. A waiver of statutory rights must
be clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Provena St. 10
Joseph Medical Center, 350 NLRB 808 (2007). In American Diamond Tool, Inc., 306 NLRB 570
(1992), the Board noted that “Waivers can occur in any of three ways: by express provision in
the collective bargaining agreement, by the conduct of the parties, including past practices,
bargaining history and action or inaction), or by a combination of the two.” In the instant case,
the parties’ most recent CBA expired in 2010. Under Board law the management rights clause 15
contained in that agreement did not survive the CBA’s expiration, absent evidence of the
parties’ contrary intent, and no evidence of such intent was presented here.13 See, E.I. DuPont
de Nemours, 364 NLRB No. 113 (2016); WKYC-TV, Inc., 359 NLRB 286, 288 (2012); E.I.
DuPont de Nemours, 355 NLRB 1084, 1085, fn. 1 and 2 (2010), enf. denied 682 F.3d 65 (D.C.
Cir. 2012); Beverly Health & Rehabilitation Services, 335 NLRB 635, 636 fn. 6 (2001), enfd. in 20
rel. part 317 F.3d 316 (D.C. Cir. 2003); Guard Publishing, 339 NLRB 353, 355 (2003); Paul
Mueller Co., 332 NLRB 312, 313 (2000); Presbyterian University Hospital, 325 NLRB 443, 443
fn. 2, enfd. 182 F.3d 904 (3d Cir. 1999); Ironton Publications, 321 NLRB 1048 (1996); Blue
Circle Cement Co., 319 NLRB 954 (1995), enf. granted in part, denied in part on other grounds
106 F.3d 413 (10th Cir. 1997); Buck Creek Coal, 310 NLRB 1240 fn. 1 (1993); Furniture 25
Renters of America, 311 NLRB 749, 751 (1993) enfd. in rel. part 36 F.3d 1240, 1245 (3d Cir.
1994); Holiday Inn of Victorville, 284 NLRB 916 (1987); Control Services, 303 NLRB 481, 484
(1991), enfd. 961 F.2d 1568 (3d Cir. 1992); and U.S. Can Co., 305 NLRB 1127 (1992), enfd.
984 F.2d 864 (7th Cir. 1993).
30

12 Moreover, Union officials Joseph and Brown credibly testified that Respondent had made
a series of regressive proposals at the bargaining table pertaining to the expired CBA, and that
the parties had agreed to a bargaining procedure, for which in view of the Respondent’s other
proposals they had not reached work rules during the course of their latest stage of
negotiations.
13 Leach and Blakely were not employed by Respondent at the time the expired CBA was
negotiated and no evidence pertaining to the negotiations of that contract was placed into
evidence. Respondent did not contend in its post-hearing brief that the management rights
clause extended past the 2010 expiration date of the parties’ CBA. While there was testimony
that the parties were following the terms of the expired CBA it is required, as set forth above,
that they follow terms and conditions of employment of that agreement until a lawful impasse or
a new agreement. However, as the above case law states, this does not apply to a
management rights clause. Similarly, Brown testified without contradiction that it was
Respondent’s position that grievances were not arbitrable under the expired CBA. Finally, as
reflected in Midwest Terminals of Toledo International, 362 NLRB No. 57 slip op. at 1-2 fn. 2
(2015), Respondent attempted to cancel dues checkoff following the expiration of the CBA, but
was found to have violated of the Act, because it had signed a post-CBA agreement with the
Union extending the CBA’s checkoff provision. There is no contention here of any such
extension or agreement to extend the management rights clause.
JD–89–16
42
Respondent, upon asserting that its unilateral actions were lawful because they were
consistent with the parties' past practice, bears the burden of establishing this affirmative
defense. Beverly Health & Rehabilitation Services, 335 NLRB 635, 636 (2001), enfd. 317 F.3d
316 (D.C. Cir. 2003). In Verizon New York, Inc. v. NLRB, 360 F.3d 206, 209 (D.C. Cir. 2004),
the court stated:5
(a) “union's acquiescence in previous unilateral changes does not operate as a waiver
of its right to bargain over such changes for all time,” Owens-Corning Fiberglas Corp.,
282 N.L.R.B. 609, 1987 WL 90160 (1987). See Ciba-Geigy Pharmaceuticals Div. v.
NLRB, 722 F.2d 1120, 1127 (3d Cir.1983).10
Similarly, in NLRB v. Miller Brewing Co., 408 F.2d 12, 15 (9th Cir.1969), the court stated:
Respondent next contends that because Union failed to object to the previous
unilateral issuance of plant rules by other employers and because of the clause in the 15
collective bargaining agreement allowing discharge for ‘cause,’ it has waived any right to
now request negotiations. The first part of this argument is unconvincing because it is
not true that a right once waived under the Act is lost forever. Pacific Coast Ass'n of Pulp
& Paper Mfrs. v. NLRB, 304 F.2d 760 (9th Cir. 1962). Each time the bargainable
incident occurs- each time new rules are issued- Union has the election of requesting 20
negotiations or not. An opportunity once rejected does not result in a permanent ‘close-
out;’ as in contract law, an offer once declined but then remade can be subsequently
accepted. Cf. Leeds & Northrup Co. v. NLRB, 391 F.2d 874 (3d Cir. 1968); General Tel.
Co. v. NLRB, 337 F.2d 452 (5th Cir. 1964).
25
See also, Owens-Brockway Plastic Products, 311 NLRB 519, 526 (1993); and Owens-Corning
Fiberglass, 282 NLRB 609 (1987).
In the instant case, Respondent took over the facility in 2004, at which time the Union
was representing bargaining unit employees. There was a collective-bargaining agreement in 30
effect between the parties from 2006 to December 31, 2010. Leach was employed by
Respondent in 2007, and Blakely was employed by in May 2010. The expired CBA contained
the following provision under management rights:
20.3 The management of the Company has established certain reasonable rules and 35
policies for all its employees. These are attached hereto and the Company shall have
the right at any time to add further rules or subtract or change otherwise existing rules,
as long as these rules are reasonable and not contrary to specifications set forth in the
labor agreement. Such rules must be posted on bulletin boards or in such locations as
to be readily accessible to the employees of the company.40
Attached to the CBA was Exhibit C entitled “Work Rules (2/23/06).”
Leach testified that between 2010 and 2012, union trustees were negotiating on behalf
of Local 1982 for a new CBA. Leach estimated there were about eight or nine negotiation 45
sessions with the trustees. He testified to his recollection he attended every negotiation session
with the trustees. Joseph, a vice-president for the Atlantic Coast District of the International
Longshoremen's Association of the Great Lakes Area, served as one of the trustees who
negotiated on behalf of Local 1982. Joseph began participating in the negotiations on behalf of
JD–89–16
43
Local 1982 beginning in September 2011. Joseph testified Leach and Blakely were on the
Respondent’s negotiating committee.
Joseph estimated he attended over 10 bargaining sessions during the trusteeship. He
testified the Union provided proposals to Respondent including a proposed employee policy5
handbook. Joseph testified he provided Leach and Blakely copies of the Union’s proposed
handbook drafts as they went along. Joseph testified that most of the handbook was language
contained in the expired CBA which Joseph removed and placed into a handbook. He testified
the handbook was to have been a signed document between the parties. Joseph identified a
document entitled “ILA Local 1982 Employee Handbook.” It states it was compiled on 10
December 1, 2011. Joseph testified the document was provided to Leach and Blakely. The
document by its terms contains listings of color codes for Union and Employer inserts, although
the copy tendered into evidence was in black and white. The proposed handbook includes
sections entitled: Referral and Seniority List, Skilled Employees, Regular Employees, Casual
Employees, Employment Procedures, Seniority, Attendance, Pay Period/Payday, Medical 15
Insurance, Pension Benefit, Drug and Alcohol, and Standard Operating Procedures. Joseph
identified a second draft of the proposed Employee Handbook compiled on December 8, 2011,
containing the same or similar headings. He testified he thought this was the last draft which
parties agreed to. While Joseph testified most of the handbook language was derived from the
CBA there appears to be large sections of the handbook not contained in the CBA, for example 20
a section labeled “Drug and Alcohol.” There is another section in the handbook labeled “Rules
and Regulations Accident Policy,” which provides in part, “The Company and the Union reserve
the right to revise the Rules and Regulations listed herein.” Even sections contained in the
handbook that related to provisions in the expired CBA contained changes. For example, the
CBA states under 5.2.1 B. “The hiring of individuals on the skilled list shall be from those 25
individuals who make themselves available for work by reporting to the Company at times
designated and who are qualified to perform such work as is required.” Whereas the handbook
language states, “The hiring of individuals on the skilled list shall be from those individuals who
make themselves available for work by reporting to the Union Hall….”. There are similar
changes throughout the handbook sections relating to the expired CBA.30
Blakely testified, concerning contract negotiations in the fall of 2011, that Joseph had an
employee handbook that Blakely thought came from Burns Harbor. Blakely testified he received
a document entitled, “ILA Local 1982 Employee Handbook” from the Union with the statement
on the cover page that it was “Compiled December 1, 2011” during negotiations. Blakely 35
testified the last two pages of the expired CBA contain work rules dating back to the 1990’s
which were negotiated between the Union and the Employer.
Blakely testified in 2011, Respondent’s annual mandatory drug safety training was held
on March 18. Blakely identified the sign in sheets for the March 18 meeting, which stated “By 40
signing this sheet you acknowledge receipt of MWTTI Policy Packet (MWTTI Drug Policy, Cell
Phone Policy, Equipment Policies, Violence in the Workplace Policy, Shape-Up Hiring,
Grievance turn in). He testified these policies were distributed at the March 18 meeting.
Blakely testified the company did not bargain with the Union over the policies listed at the
bottom of the page on the sign in sheets. Blakely testified that no one from the Union requested 45
to bargain over those rules. However, Blakely identified a series of singular policies, which he
testified were in existence, before Respondent distributed its first policy books in 2012. One of
which was Respondent’s “Drug Free Safety Program #4000.” Blakely testified he inserted the
“#4000” in the label for the purpose of creating the handbook, but the policy itself by its terms
was created on March 23, 2007. In the packet of policies submitted by Respondent pre-existing 50
JD–89–16
44
the 2012 handbook is a “Cell Phone Use Policy” dated February 27, 2009; a “Vehicle and
Equipment Misuse and Abuse Program” dated March 20, 2010; a “No Weapons/ Violence in the
Workplace Policy” dated March 2010. In other words, Respondent failed to show when the
policies distributed at the March 18, 2011 meeting originated, and it is clear some, if not all,
came into effect prior to Blakely’s employment with Respondent, and likely during the term of 5
the CBA which expired on December 31, 2010.
Blakely testified Respondent’s annual mandatory preseason meeting in 2012 was held
on March 16, 2012. Blakely identified the sign in sheets for attendance at the March 16 meeting
which state, “By signing this sheet, you acknowledge receipt of MWTTI Policy Handbook, 10
MWTTI Safety Handbook and paperwork for the pre-season drug screen to be completed on or
before March 23, 2012.” Blakely testified the Policy Handbook and the Safety Handbook were
distributed to employees at the meeting. Blakely testified that he did not bargain with the Union
over the Policy Handbook and the Safety Handbook listed at the bottom of that sign in sheet.
Blakely testified that no one from the Union requested to bargain over the handbooks. Blakely 15
testified that to his knowledge these were the first formal handbooks distributed by Respondent.
Blakely testified that up until that time there were just individual policy pages. Blakely testified
Respondent contracted with an outside contractor to work with Blakely in creating the
handbooks, and this was done at least a year prior to the 2012 safety meeting. He testified that
at no time did he notify the Union that he was drafting new handbooks. Blakely testified this 20
was despite the Union and Respondent being in ongoing contract negotiations. Blakely
testified, and by the dates of the policies included the 2012 Policy Handbook, several of those
policies had been in effect prior to 2012, and prior to the expiration of the CBA.14
It was the Union’s position at a prior unfair labor practice trial that the parties reached a 25
new CBA on about December 9, 2011, although that position did not prevail before the Board.
Joseph testified his last day as a trustee was either in late July or August 2012. Brown testified
he became president of Local 1982 on August 7, 2012. Brown estimated that the parties
resumed negotiations for a new CBA in October 2012, but as of the time of his testimony at the
current trial, the parties had not reached a new CBA. 30
Blakely testified Respondent made no changes to its Policy or Safety handbooks during
Respondent’s March 1, 2013, annual mandatory meeting, and for reasons stated in the
credibility section of this decision, I have concluded the General Counsel has failed to establish
the Union protested Respondent’s policies during that meeting. 35
Respondent conducted its mandatory preseason 2014 safety meeting on March 22.
Blakely testified Respondent presented employees with new handbooks during the meeting
entitled the 2014–2015 Policy Handbook and the 2014-2015 Safety Handbook. Concerning the
new policies contained in these handbooks, Blakely testified he had attended Department of 40
Labor training sessions, during which the DOL representative said Respondent should have
policies on record retention pertaining to how long they keep personnel files to make sure they
are in compliance with the law. He testified there also should be a policy concerning the
procedure followed if someone sees a mistake in their paycheck. Blakely testified mainly the

14 While Brown testified that he protested the implementation of the 2012 policy books,
during the March 16, 2012 meeting, for reasons stated in the credibility section of this decision I
have found the General Counsel failed to establish that Brown protested the implementation of
Respondent’s 2012 handbooks. Moreover, as stated in that section, Brown was not a union
official at the time.
JD–89–16
45
handbook changes related to what he learned at the DOL conference in terms of policies the
company needed to make to be in compliance with the law. Blakely testified he did not bargain
with the Union over these changes. Blakely testified that he attended the DOL meeting in 2013
and at no time did he notify the Union Respondent was going to add policies to the handbooks.
Leach testified, pertaining to the 2014 shipping season safety meeting, that during the meeting 5
then union steward Fred Victorian, Jr., objected to the employer's unilateral implementation of
the policy handbooks. Leach testified, “As I recall, Fred did come to me and say that we're
going to object and protest and we're not going to sign anything because he was informed by
Mr. Otis (Brown) not to sign anything.” Leach testified that Don Russell, who he acknowledged
may have been a union steward at the time, also objected to Respondent’s unilateral 10
implementation of the policies. Brown testified that Respondent did not give the Union
advanced notice concerning any new manuals to be handed out at 2014 meeting. Brown filed
an unfair labor practice charge on September 18, 2014 on behalf of the Union alleging, in part,
that since March 22, 2014, the Employer failed to notify the Union regarding the scheduling of a
safety/drug meeting; and disseminated policy changes without notifying or bargaining with the 15
Union regarding the changes. By letter dated November 28, 2014, the Regional Director
notified Brown the charge was dismissed.
Respondent received an OSHA “Citation and Notification of Penalty” dated March 12,
2014, from the U.S. Department of Labor. On March 22, 2014, Leach, on behalf of Respondent 20
signed an “Informal Settlement Agreement” with OSHA. Included in the settlement was the
requirement that Respondent “agrees to systematically work through the Standard Operating
Procedure (SOP) manual to review and update their procedures to create more specific SOP’s
similar to the form of the “SOP-Loading and Unloading Material”. The settlement agreement
states, “A labor representative will be part of this process; the make-up of the reviewing group 25
can change based upon the procedure being reviewed, but a labor representative will be
present for these reviews. The employer will provide the area office a copy of four of these
SOP’s no later than July 31, 2014, in addition to the names and titles of the reviewers.”
However, as set forth above, rather than contacting Local 1982 officials for a labor
representative to serve as part of the reviewing group, Respondent bypassed the Union and 30
handpicked a foreman, who was a member of the bargaining unit as its own labor
representative.
Hubbard, by letter to Blakely dated March 19, 2015, stated that Union President Brown
was the chairman of both the Union’s safety and its training committees. Hubbard cited the 35
OSHA proceedings and stated Brown attended the OSHA hearing and gave testimony on behalf
of ILA local 1982. The letter stated Local 1982’s executive board appointed Brown “as our labor
representative” and that Brown is supposed to be part of the reviewing group that will work to
improve the employers Standard Operating Procedures (SOP) for loading and unloading
material from the various vessels, and to also participate as the labor representative in all safety 40
incidents and accident investigations.” Hubbard asked Blakely to contact Brown as soon as
possible. Similarly, Brown sent a letter to Blakely dated March 20, 2015, wherein Brown cited
the OSHA settlement. Brown stated that during a March 21, 2014 hearing, Blakely and Leach
“agreed to provide the union with copies of the company’s safety handbooks and the work rules
for our review, and to meet with union to discuss any discrepancies that may exist within those 45
documents. As part of your written settlement agreement, you agreed to allow a union
representative to assist the employer and work through the Standard Operating Procedure
manuals to review and update them as needed.” Brown stated, “Exactly one year has passed
and the employer has not provided the union with any of those documents nor has the employer
allowed the union representative to participate in any of the events as listed in the settlement 50
JD–89–16
46
agreement.” He stated, “The union position in this matter is that since the employer refuses to
provide the list of documents to the union representatives for review, and not allow them the
opportunity to raise any issues on discrepancies, then the union and its members will not be
held bound by these documents.”
5
Respondent held its annual mandatory safety meeting on March 21, 2015. At that time,
Blakely passed out to the employees in attendance Respondent’s new 2015 to 2016 Safety and
Policy handbooks, as well as a first time standard operating procedure handbook. Blakely
testified that at no point prior to the meeting did he send a copy of the new handbooks to the
Union. When asked if Hubbard objected to the handbook policies at the March 21 meeting, 10
Blakely testified, “I -- I don't recall.” Similarly, Leach, who attended the meeting, when asked if
Hubbard informed employees at the meeting to sign the work rules acknowledgement papers
under protest, responded, “You would have to ask Mr. Hubbard that question.” When asked if
he had any recollection of any employees speaking at that meeting, Leach replied, “I don't
recall.” As set forth above, I did not find Blakely and Leach’s professed lack of recall to be 15
credible here. The event in question was not that far removed from the time of their testimony,
Blakely admitted to receiving protest letters from Brown and Hubbard concerning the failure to
include the Union in the formulation of the standard operating procedures, and Leach recalled
the protest by the Union of Respondent’s unilateral rule changes during the March 2014
meeting, but strange to say could not or would not recall a similar protest taking place at the 20
2015 meeting which coincidentally involved the allegations at the current unfair labor practice
trial.
Hubbard testified he attended the mandatory 2015 safety meeting. Hubbard credibly
testified he spoke with Leach prior to the start of the meeting and informed Leach that the Union 25
was not given the opportunity to review with Respondent its new handbooks and the Union was
going to have the men sign for them under protest. Hubbard credibly testified that he spoke
during the 2015 meeting in the presence of Leach, Blakely and the union members. Hubbard
testified he told the attendees that “due to the fact that the Company didn’t come to the Union
with the policies beforehand that we were going to have to sign it in protest.” 30
In sum, the parties had bargained over work rules which were attached as an exhibit to
the expired CBA which contained sections of telephone and cell phone usage. Moreover, there
were fairly extensive negotiations between the Union and Respondent in 2011, over a
comprehensive employee handbook proposed by then trustee for the Union Joseph, which 35
included a section on standard operating procedures, and to which Joseph testified the parties
had reached an agreement in principle. During the course of the 2006 to 2010 CBA,
Respondent implemented some separate policies of varying dates, to which Blakely testified
were not negotiated between the parties. However, these policies pre-dated Blakely’s
employment with Respondent, so his testimony on how they were formulated was speculative at 40
best. During the 2011 annual safety meeting, Respondent distributed these pre-existing policies
to employees and had them sign for them. There is no contention that these were new policies
first implemented at that time. Rather, if as the evidence suggests they were first implemented
during the term of the CBA, they were in fact bargained with the Union in that the Union had
agreed to the inclusion of the management rights clause in the CBA. At the March 2012, 45
meeting, Respondent for the first time implemented policy and safety handbooks. The policy
handbook is mostly a compilation of Respondent’s pre-existing policies that were in place during
the term of the CBA as exhibited by the dates of those policies in the handbook. The Union at
the time was going from the end of the term of trustee representation to elected local Union
officials, as Brown was elected president in August 2012. There were no new handbooks 50
JD–89–16
47
presented at the 2013 meeting. Blakely testified Respondent introduced new policy and safety
handbooks in 2014, which according to Blakely mainly referenced changes in document storage
and access. Yet, the Union protested these unilateral changes during the March 2014 meeting,
and followed up by filing an unfair labor practice charge over those changes, although the
charge was ultimately dismissed, the protest was lodged. The Union also protested the5
changes Respondent made during the 2015 meeting, by letters to Blakely from Hubbard and
Brown, and by Hubbard’s verbal protest immediately before and during the meeting, although
those changes were made to the Union as a fait accompli during the March 2015 meeting.
Thus, the record only produced one set of changes following the expiration of the CBA ergo the
end of the management rights clause, where there Union failed to protest that change and that 10
was in 2012. I do not find that Respondent has met its burden of proof concerning a past
practice concerning the unilateral changes in work rules or work policies to afford it the right for
its unilateral action here. See, Beverly Health & Rehabilitation Services, above; Verizon New
York, Inc. v. NLRB, above; NLRB v. Miller Brewing Co., above; Owens-Brockway Plastic
Products, above; and Owens-Corning Fiberglass, above. Rather, the evidence shows the 15
parties had a history of bargaining over work rules, some of which were attached as an exhibit
in the expired CBA, and in negotiations that took place in 2011 following the CBA’s expiration.
Moreover, the Union lodged strong protests in 2014 and 2015 against Respondent’s unilateral
changes in its handbooks. Thus, I reject Respondent’s claim that there was a waiver by past
practice.20
I therefore have rejected all Respondent’s defenses pertaining to the unilateral change
allegations alleged in the complaint. Since the enumerated changes involved mandatory
subjects of bargaining, I find Respondent violated Section 8(a)(5) and (1) of the Act by those
changes as alleged in the complaint.25
CONCLUSIONS OF LAW
1. Respondent, Midwest Terminals of Toledo International, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.30
2. Local 1982, International Longshoremen’s Association, AFL-CIO (the Union or
Local 1982) is a labor organization within the meaning of Section 2(5) of the Act.
3. At all material times, the following described unit has been an appropriate unit for
the purposes of collective-bargaining within the meaning of Section 9(b) of the Act:
35
The terms members of the collective bargaining unit, employee or
employees, as used in the Agreement, mean employees of the
Company in stevedore and warehouse operations such as
longshoremen, warehousemen, crane operators, power operators,
fork-lift operators, end-loaders, material handlers, checkers, 40
signalmen, winchmen, linemen, line dispatcher, and hatch
leaders.
4. At all material times, the Union has been, and is now, the exclusive representative for
the employees in the bargaining unit described above in paragraph 3 (the unit employees) for 45
the purposes of collective-bargaining within the meaning of Section 9(a) of the Act.
5. Respondent, violated Section 8(a)(5) and (1) of the Act by since March 21, 2015,
unilaterally changing the following without bargaining with the Union by:
(a) Adding new language to its Policy Handbook policy #2500 pertaining to camera
usage reading “Photography and all types of recording are restricted on all50
JD–89–16
48
company property and cannot take place without prior written permission from the
Director of Operations. All images and recordings taken by clients, contractors,
employees and/or visitors remain solely the property of MWTTI or MWTT, including
any image or recording taken with a personally owned cell phone camera or other
digital imaging device.5
(b) Adding new language to its Policy Handbook policy #2500 pertaining to the section
on Marketing documents pertaining to “photographs and recordings.”
(c) Adding new language in Policy #3100 in the 2015-16 Policy Handbook pertaining to
camera, digital device, cell phone and email usage; in essence rewriting Policy
#3100 and greatly expanding its restrictions from that included in the prior 10
handbook.
(d) Adding two new sections to its 2015-16 Safety Handbook, one called “Driver Safety
Requirements” and the other called “Visitor Safety Requirements.”
(e) Promulgating and implementing its 2015-2016 ILA Standard Operating Procedures.
6. Respondent violated Section 8(a)(1) of the Act by maintaining the following overly 15
broad work rules, policies, and or procedures which improperly restrict employees in the
exercise of their rights protected by Section 7 of the Act:
In its 2015-2016 Policy Handbook the following:
The Non-Disclosure/Confidentiality Policy #2500 provides:
Photography and all types of recording are restricted on all company property 20
and cannot take place without prior written permission from the Director of
Operations. All images and recordings taken by…employees and/or visitors
remain solely the property of MWTTI or MWTT, including any image or recording
taken with a personally owned cell phone camera or other digital imaging device.
Employees who improperly use or disclose…confidential business 25
information, to include information regarding labor relations, will be subject to
disciplinary action, including termination of employment and legal action, even if
they do not actually benefit from the disclosed information.
Marketing documents specific to a customer, all contact information, all
accounting data, all personnel information, and union related business are 30
considered confidential business information and should be guarded as such.
The Confidentiality Agreement Policy #2550 provides that employees must:
[M]aintain the confidentiality of ALL documents, credit card information, and
personal information of any type and that such information may only be used for
the intended business purpose. Any other use of said information is strictly 35
prohibited and is cause for immediate dismissal. Additionally, should [employees]
misuse or breach, any personal information or the expectation of privacy of said
clients and/or employees; [employees] understand that [they] will be held fully
accountable both civilly and criminally, which may include, but not limited to,
Federal and State fines, criminal terms, real or implied financial damages 40
incurred by the client, employee, or this company.
The Camera, Cell, Digital Device Policy #3100 provides:
In the Policy Overview, that employees and visitors are prevented from “the
improper disclosure of company trade secrets and confidential business
information.”45
Under the General Policy, Digital Equipment Usage, that the “[u]se of
cameras, whether cell phone cameras, stand-alone cameras, or cameras
contained on any other devices, whether digital or conventional film cameras—
while on duty or when performing any function for or on behalf of the company –
JD–89–16
49
is restricted. This policy applies to all full-time and part-time employees and
visitors.” (emphasis in original)
Under Cellular Telephone Use, that “[o]n-duty use of cell phones to send
electronic mail is expected to comply with company rules and policies including
sexual harassment, discrimination, ethics, code of conduct, confidentiality and 5
workplace violence.”
Under Camera Use, that “[e]mployees while on duty and/or on facility
property shall not be permitted to use cameras or other audio, picture,
video, or image generating devices — including cell phone cameras —
without prior written authorization from the Facility Security Officer or his 10
designee.”
Under Camera Use, that “[a]ll on-site photography or recording shall
be for documentation or investigation purposes only and conducted at the
direction or authorization of the Facility Security Officer or his designee.”
Under Camera Use, that “[a]ny photographs or recordings taken by an 15
employee while on duty or facility visitor while on site are solely the
property of MWTTI and/or MWTT and not the property of the individual.
This includes any photograph or recording inadvertently taken with a
personally owned cell phone camera or other digital imaging or recording
device.”20
Under Camera Use, that “[n]o photograph or recording (taken by an
employee on duty or a facility visitor) may be used, printed, copied
scanned, e-mailed, posted, shared or distributed in any manner without
the express, written approval of the Facility Security Officer or his
designee.25
Example: This prohibition includes but is not limited to posting
photos or videos on Websites such as FaceBook, Instagram,
SnapChat, Twitter, YouTube, or MySpace, or on other websites or
e-mailing to friends, colleagues or others.”
Under Camera Use, that “[e]mployees may not take or use images or 30
recording to harass, embarrass, annoy others and/or violate an
individual’s expectation of privacy. All company policies, including
policies on harassment, discrimination, and processional conduct, apply
to photographs and/or recordings taken.”
Safe Workplace Environment #4500 policy prohibits an employee from “[v]iolating 35
others’ expectation of privacy”.
Safe Workplace Environment #4500 prohibits “[l]oitering or presence on the jobsite
without authorization before or after assigned shift is completed.”
In its 2015-2016 Safety Handbook the following:40
The Incident Reporting Policy #1600 that states that “Because it is likely that
incidents involving hospitalization or a fatality will result in litigation, all reports and
related documentation, including photographs…shall be marked as follows:
“PRIVILEGED AND CONFIDENTIAL – ATTORNEY WORK PRODUCT PREPARED IN
ANTICIPATION OF LITIGATION.”45
The Incident Reporting Policy #1600 that states that “[n]o incident report or related
documents shall be disclosed to anyone outside of MWTTI unless authorized to do so by
Alex Johnson, President and CEO.”
The Driver Safety Requirements states that “[p]hotography and recording are
restricted at this facility at all times.”50
JD–89–16
50
The Visitor Safety Requirements states that “[p]hotography and recording are
restricted at this facility at all times.”
7. The unfair labor practices described above constitute unfair labor practices having an
effect on commerce within the meaning of Section 2(6) and (7) of the Act.
5
THE REMEDY
Having found Respondent has engaged in conduct violating Section 8(a)(5) and (1) of
the Act, it is ordered to cease and desist therefrom, and to take the following affirmative action
deemed necessary to effectuate the policies of the Act. Respondent is ordered to recognize 10
and, on request, bargain with the Union as the exclusive collective-bargaining representative of
its employees in the unit found here to be appropriate. Respondent shall, on request by the
Union, rescind the Policy and Safety Handbook policies found herein to be improperly
implemented as unilateral changes. See, Scepter Ingot Castings, Inc., 331 NLRB 1509 (2000),
enfd. 280 F.3d 1053, (D.C. Cir., 2002). As well as upon request by the Union rescind 2015-15
2016 ILA Standard Operating Procedures policy, or portions thereof, specified by the Union,
until it has bargained with the Union in good faith concerning the implementation of the 2015-
2016 Standard Operating Procedures. In this regard, I note that the procedures were
formulated as a result an OSHA settlement. I have found Respondent unlawfully bypassed the
Union in terms of the implementation of this settlement. However, because of the safety 20
concerns bringing about the OSHA settlement I would suggest that the Union review the
Standard Operating Procedures, and would recommend that it only seek to rescind those
portions of the Operating Procedures for which it has an issue in terms of safety, or other
particularities such as omissions, or better procedures to be implemented. Respondent shall
also rescind or rewrite all policies the maintenance of which have been found herein to violate 25
Section 8(a)(1) of the Act, to bring them in compliance with the protection of employee Section
7 rights. Respondent shall remove, all discipline from employees files, who have been
disciplined within the six month period of the filing of the current unfair labor practice charge for
the enforcement of the policies which have found to have been unlawfully maintained, notify
employees and the Union, each in writing, that the discipline has been removed, and make 30
employees whole for any loss of earnings imposed by any such discipline in the manner
required by traditional Board remedies, until such times as the policies are rescinded or
rewritten in a manner meeting the requirements of this decision to protect employee Section 7
rights.
35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15
ORDER
40
It is hereby ordered that Respondent Midwest Terminals of Toledo International, Inc.,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
a. Refusing to bargain in good faith with Local 1982, International 45

15 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–89–16
51
Longshoremen’s Association, AFL-CIO (the Union or Local 1982) concerning the rates
of pay, wages, hours, and working conditions of employees in the following appropriate
unit:
The terms members of the collective bargaining unit, employee or 5
employees, as used in the Agreement, mean employees of the
Company in stevedore and warehouse operations such as
longshoremen, warehousemen, crane operators, power operators,
fork-lift operators, end-loaders, material handlers, checkers,
signalmen, winchmen, linemen, line dispatcher, and hatch 10
leaders.
b. Unilaterally changing terms and conditions of employment, including those
maintained in its Policy Handbook, Safety Handbook, and Stand Operating Procedures.
c. From its maintaining in its 2015-16 Policy Handbook or subsequent policy 15
handbooks the following provisions:
The Non-Disclosure/Confidentiality Policy #2500 providing the following:
Photography and all types of recording are restricted on all company property and
cannot take place without prior written permission from the Director of Operations. All
images and recordings taken by…employees and/or visitors remain solely the property 20
of MWTTI or MWTT, including any image or recording taken with a personally owned
cell phone camera or other digital imaging device.
Employees who improperly use or disclose…confidential business information, to
include information regarding labor relations, will be subject to disciplinary action,
including termination of employment and legal action, even if they do not actually benefit 25
from the disclosed information.
Marketing documents specific to a customer, all contact information, all accounting
data, all personnel information, and union related business are considered confidential
business information and should be guarded as such.
The Confidentiality Agreement Policy #2550 providing that employees must: 30
[M]aintain the confidentiality of ALL documents, credit card information, and
personal information of any type and that such information may only be used for the
intended business purpose. Any other use of said information is strictly prohibited and is
cause for immediate dismissal. Additionally, should [employees] misuse or breach, any
personal information or the expectation of privacy of said clients and/or employees; 35
[employees] understand that [they] will be held fully accountable both civilly and
criminally, which may include, but not limited to, Federal and State fines, criminal terms,
real or implied financial damages incurred by the client, employee, or this company.
The Camera, Cell, Digital Device Policy #3100 providing:
In the Policy Overview, that employees and visitors are prevented from “the improper 40
disclosure of company trade secrets and confidential business information.”
Under the General Policy, Digital Equipment Usage, that the “[u]se of cameras,
whether cell phone cameras, stand-alone cameras, or cameras contained on any other
devices, whether digital or conventional film cameras—while on duty or when performing
any function for or on behalf of the company –is restricted. This policy applies to all full-45
time and part-time employees and visitors.”
Under Cellular Telephone Use, that “[o]n-duty use of cell phones to send electronic
mail is expected to comply with company rules and policies including sexual
harassment, discrimination, ethics, code of conduct, confidentiality and workplace
violence.”50
JD–89–16
52
Under Camera Use, that “[e]mployees while on duty and/or on facility property
shall not be permitted to use cameras or other audio, picture, video, or image
generating devices — including cell phone cameras — without prior written
authorization from the Facility Security Officer or his designee.”
Under Camera Use, that “[a]ll on-site photography or recording shall be for 5
documentation or investigation purposes only and conducted at the direction or
authorization of the Facility Security Officer or his designee.”
Under Camera Use, that “[a]ny photographs or recordings taken by an
employee while on duty or facility visitor while on site are solely the property of
MWTTI and/or MWTT and not the property of the individual. This includes any 10
photograph or recording inadvertently taken with a personally owned cell phone
camera or other digital imaging or recording device.”
Under Camera Use, that “[n]o photograph or recording (taken by an employee
on duty or a facility visitor) may be used, printed, copied scanned, e-mailed,
posted, shared or distributed in any manner without the express, written approval 15
of the Facility Security Officer or his designee.
Example: This prohibition includes but is not limited to posting photos or
videos on Websites such as FaceBook, Instagram, SnapChat, Twitter,
YouTube, or MySpace, or on other websites or e-mailing to friends,
colleagues or others.” 20
Under Camera Use, that “[e]mployees may not take or use images or
recording to harass, embarrass, annoy others and/or violate an individual’s
expectation of privacy. All company policies, including policies on harassment,
discrimination, and processional conduct, apply to photographs and/or recordings
taken.”25
Safe Workplace Environment #4500 policy that prohibits an employee from “[v]iolating
others’ expectation of privacy”.
Safe Workplace Environment #4500 that prohibits “[l]oitering or presence on the
jobsite without authorization before or after assigned shift is completed;”
d. Maintaining in its 2015-2016 Safety Handbook, or subsequent safety handbooks,30
the following provisions:
The Incident Reporting Policy #1600 that states that “Because it is likely that
incidents involving hospitalization or a fatality will result in litigation, all reports and
related documentation, including photographs…shall be marked as follows:
“PRIVILEGED AND CONFIDENTIAL – ATTORNEY WORK PRODUCT PREPARED IN 35
ANTICIPATION OF LITIGATION.”
The Incident Reporting Policy #1600 that states that “[n]o incident report or related
documents shall be disclosed to anyone outside of MWTTI unless authorized to do so by
Alex Johnson, President and CEO.”
The Driver Safety Requirements that states that “[p]hotography and recording are 40
restricted at this facility at all times.”
The Visitor Safety Requirements that states that “[p]hotography and recording are
restricted at this facility at all times.”
e. 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.45
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a. On request, bargain collectively and in good faith concerning wages, hours,
and other terms and conditions of employment with the Union as the exclusive
representative of employees in the above-described unit.
b. On the request of the Union, rescind the language in Respondent’s 2015-16 Policy 50
JD–89–16
53
Handbook policy #2500; policy #3100; the language in its 2015-16 Safety Handbook
pertaining “Driver Safety Requirements” and the other called “Visitor Safety
Requirements”; and the 2015-16 ILA Standard Operating procedures, in whole or in
part as requested by the Union, that has been found to have constituted unlawful
unilateral changes in this decision, as directed in the remedy section of this decision, 5
and notify the Union and the bargaining unit employees that any requested rescissions
have been made.
c. Within 14 days of the Board's Order, rescind or revise the provisions and rules set
forth in paragraphs 1(c) and (d) above.
d. Furnish all current or former employees who received the described 2015-2016 10
Policy and/or Safety Handbooks with written inserts that (1) advise that the unlawful
rules have been rescinded, or (2) provide the language of lawful rules or publish and
distribute a revised Policy and Safety Handbooks that (a) do not contain the unlawful
rules or (b) provide the language of lawful rules.
e. Within 14 days after service by the Region, post at Respondent’s facility where 15
notices to employees are customarily posted copies of the attached notice marked
“Appendix”16 Copies of the notice, on forms provided by the 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 20
addition to physical posting of paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site, or other electronic means, if
the Respondent customarily communicates with their 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. If the Respondent has gone out of 25
business or closed the facilities involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice marked “Appendix” to all
current employees and former employees employed by the Respondent at any time
since November 14, 2014.
f. Within 21 days after service by the Region, file with the Regional Director for 30
Region 8 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. September 19, 2016.
35

Eric M. Fine
Administrative Law Judge40

16 If this Order is enforced by a Judgment of the 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–89–16
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO:
 Form, join, or assist a union;
 Choose a representative 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.
The National Labor Relations Board has found that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with Local 1982, International Longshoremen’s
Association, AFL-CIO (Local 1982) as the exclusive bargaining representatives of
employees in the following unit:
The terms members of the collective bargaining unit, employee or
employees, as used in the Agreement, mean employees of the
Company in stevedore and warehouse operations such as
longshoremen, warehousemen, crane operators, power operators,
fork-lift operators, end-loaders, material handlers, checkers,
signalmen, winchmen, linemen, line dispatcher, and hatch
leaders.
WE WILL NOT unilaterally, without bargaining with Local 1982, change terms and conditions
of employment, including those maintained in ours Policy Handbook, Safety Handbook, and
Stand Operating Procedures.
WE WILL NOT maintain the following provisions currently included in our 2015-16 Policy
Handbook, or in any subsequent handbook:
The Non-Disclosure/Confidentiality Policy #2500 providing:
Photography and all types of recording are restricted on all company property and
cannot take place without prior written permission from the Director of Operations. All
images and recordings taken by…employees and/or visitors remain solely the property
of MWTTI or MWTT, including any image or recording taken with a personally owned
cell phone camera or other digital imaging device.
Employees who improperly use or disclose…confidential business information, to
include information regarding labor relations, will be subject to disciplinary action,
including termination of employment and legal action, even if they do not actually benefit
from the disclosed information.
JD–89–16
Marketing documents specific to a customer, all contact information, all accounting
data, all personnel information, and union related business are considered confidential
business information and should be guarded as such.
The Confidentiality Agreement Policy #2550 providing that employees must:
[M]aintain the confidentiality of ALL documents, credit card information, and
personal information of any type and that such information may only be used for the
intended business purpose. Any other use of said information is strictly prohibited and is
cause for immediate dismissal. Additionally, should [employees] misuse or breach, any
personal information or the expectation of privacy of said clients and/or employees;
[employees] understand that [they] will be held fully accountable both civilly and
criminally, which may include, but not limited to, Federal and State fines, criminal terms,
real or implied financial damages incurred by the client, employee, or this company.
The Camera, Cell, Digital Device Policy #3100 providing:
In the Policy Overview, that employees and visitors are prevented from “the improper
disclosure of company trade secrets and confidential business information.”
Under the General Policy, Digital Equipment Usage, that the “[u]se of cameras,
whether cell phone cameras, stand-alone cameras, or cameras contained on any other
devices, whether digital or conventional film cameras—while on duty or when performing
any function for or on behalf of the company –is restricted. This policy applies to all full-
time and part-time employees and visitors.”
Under Cellular Telephone Use, that “[o]n-duty use of cell phones to send electronic
mail is expected to comply with company rules and policies including sexual
harassment, discrimination, ethics, code of conduct, confidentiality and workplace
violence.”
Under Camera Use, that “[e]mployees while on duty and/or on facility property
shall not be permitted to use cameras or other audio, picture, video, or image
generating devices — including cell phone cameras — without prior written
authorization from the Facility Security Officer or his designee.”
Under Camera Use, that “[a]ll on-site photography or recording shall be for
documentation or investigation purposes only and conducted at the direction or
authorization of the Facility Security Officer or his designee.”
Under Camera Use, that “[a]ny photographs or recordings taken by an
employee while on duty or facility visitor while on site are solely the property of
MWTTI and/or MWTT and not the property of the individual. This includes any
photograph or recording inadvertently taken with a personally owned cell phone
camera or other digital imaging or recording device.”
Under Camera Use, that “[n]o photograph or recording (taken by an employee
on duty or a facility visitor) may be used, printed, copied scanned, e-mailed,
posted, shared or distributed in any manner without the express, written approval
of the Facility Security Officer or his designee.
Example: This prohibition includes but is not limited to posting photos or
videos on Websites such as FaceBook, Instagram, SnapChat, Twitter,
YouTube, or MySpace, or on other websites or e-mailing to friends,
colleagues or others.”
Under Camera Use, that “[e]mployees may not take or use images or
recording to harass, embarrass, annoy others and/or violate an individual’s
expectation of privacy. All company policies, including policies on harassment,
discrimination, and processional conduct, apply to photographs and/or recordings
taken.”
JD–89–16
Safe Workplace Environment #4500 policy that:
Prohibits an employee from “[v]iolating others’ expectation of privacy”.
Prohibits “[l]oitering or presence on the jobsite without authorization before or after
assigned shift is completed”.
WE WILL NOT maintain the following provisions currently included in our 2015-16 Safety
Handbook, or in any subsequent handbook:
The Incident Reporting Policy #1600 that:
States that “Because it is likely that incidents involving hospitalization or a fatality will
result in litigation, all reports and related documentation, including photographs…shall
be marked as follows: “PRIVILEGED AND CONFIDENTIAL – ATTORNEY WORK
PRODUCT PREPARED IN ANTICIPATION OF LITIGATION.”
States that “[n]o incident report or related documents shall be disclosed to anyone
outside of MWTTI unless authorized to do so by Alex Johnson, President and CEO.”
The Driver Safety Requirements that states that “[p]hotography and recording are restricted
at this facility at all times.”
The Visitor Safety Requirements that states that “[p]hotography and recording are restricted
at this facility at all times.”
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind or revise the unlawful provisions and rules described above, to ensure
they do not prevent employees from engaging in conduct protected by the National
Labor Relations Act.
WE WILL furnish all current or former employees who received the described 2015-2016
Policy and/or Safety Handbooks with written inserts that (1) advise that the unlawful
rules have been rescinded, or (2) provide the language of lawful rules or publish and
distribute revised Policy and Safety Handbooks that (a) do not contain the unlawful rules
or (b) provide the language of lawful rules.
WE WILL from remove employees’ files all disciplinary action made pursuant to the
unlawful rules, make employees whole for any such discipline as required by the Board’s
decision and inform said employee(s) and the Union in writing that this has been done.
WE WILL on, the request of Local 1982 rescind the language in our 2015-16 Policy
Handbook policy #2500; policy #3100; the language in its 2015-16 Safety Handbook
pertaining “Driver Safety Requirements” and the other called “Visitor Safety
Requirements” not contained in our prior handbooks, and bargain in good faith with
Local 1982 about any future changes to our handbooks.
WE WILL on the request of Local 1982 rescind policies contained in our 2015-16 ILA
Standard Operating procedures, in whole or in part, as requested by Local 1982, and
bargain in good faith with the Union concerning the replacement of any of the provisions
for which it requests to be rescinded, and/or any future provisions.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC.
(Employer)
Dated _____________ By _____________________________________________________
(Representative of Midwest Terminals of Toledo International, Inc.,) (Title)
JD–89–16
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-152192 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (216) 522-7960