MIDWEST TERMINALS OF TOLEDO INTERNATIONAL INC.

National Labor Relations Board - Board Decisions

Oct 11, 2017

365 NLRB No. 134 (N.L.R.B. 2017)

365 NLRB No. 134
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Midwest Terminals of Toledo International, Inc. and
International Longshoremen’s Association, Lo-
cal 1982, AFL–CIO and Prentis Hubbard. Cases
08–CA–119493 and 08–CA–119535
October 11, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On January 21, 2016, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent and
the General Counsel each filed exceptions, supporting
briefs, and answering briefs, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There were no exceptions to the judge’s dismissal of the following
allegations: that supervisors and nonunit employees performed bargain-
ing unit work; that the Respondent unilaterally discontinued formal
crane training, end loader training, and forklift training; that the Re-
spondent unilaterally changed the grievance procedure; that the Re-
spondent unlawfully denied work to and disciplined two employees
who presented themselves for work without the required safety glasses;
that the Respondent unlawfully threatened employee Don Russell; and
that the Respondent unlawfully restricted Russell’s movements around
the facility while he was acting steward.
Regarding the Respondent’s unilateral change to the transfer of alu-
minum at its facility, we observe that the Sec. 10(k) jurisdictional deci-
sion on which the Respondent relies, Teamsters Local 20 (Midwest
Terminals of Toledo International, Inc.), 359 NLRB 983 (2013), was
invalidated under the Supreme Court’s ruling in NLRB v. Noel Can-
ning, 134 S.Ct. 2550 (2014). However, neither party has argued that
the jurisdictional decision is not binding on the parties to that dispute,
and in any event, we find that it provides no support for the Respond-
ent’s exceptions in this proceeding.
With respect to the judge’s dismissal of the allegation that the Re-
spondent violated Sec. 8(a)(3) and (1) by issuing a written disciplinary
warning to employee Don Russell, we agree with the judge that the
Respondent has met its rebuttal burden by demonstrating that it would
have issued the discipline to Russell even in the absence of his protect-
ed conduct. See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Specifical-
ly, the Respondent established that it would have disciplined Russell
for leaving the barge on which he was working without notifying his
and to adopt the recommended Order as modified and set
forth in full below.2
Our dissenting colleague would dismiss the allegation
that the Respondent violated Section 8(a)(5) by unilater-
ally eliminating informal crane training3 for unit employ-
ees who were not formally trained and certified by the
National Commission for the Certification of Crane Op-
erators (NCCCO). In his view, the Union never request-
ed bargaining over this change, the Respondent actually
never implemented a “change,” and our finding of a vio-
lation conflicts with Section 8(d) of the Act. We are not
persuaded by these arguments.
I.
The Board and the courts alike have recognized that a
request to bargain “need take no special form, so long as
there is a clear communication of meaning.” Armour &
Co., 280 NLRB 824, 828 (1986) (internal quotation
omitted); see also NLRB v. Barney’s Supercenter, Inc.,
296 F.2d 91, 93 (3d Cir. 1961) (“a request to bargain
need follow no specific form or be made in any specific
words so long as there is a clear communication of mean-
ing, and the employer understands that a demand is being

supervisor irrespective of any protected activity on Russell’s part.
Accordingly, in affirming the judge’s dismissal, we need not pass on
his analysis applying Atlantic Steel Co., 245 NLRB 814 (1979), or on
his analysis of the General Counsel’s initial burden under Wright Line.
2 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall include the requisite tax compen-
sation and Social Security reporting remedy, and shall modify the
judge’s recommended Order and substitute a new notice to reflect this
remedial change and to conform to the violations found and the Board’s
standard remedial language. Further, in accordance with our recent
decision in King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in
pertinent part 859 F.3d 23 (D.C. Cir. 2017), we shall order the Re-
spondent to compensate affected employees for their search-for-work
and interim employment expenses regardless of whether those expenses
exceed interim earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
For the reasons stated in his separate opinion in King Soopers, supra,
slip op. at 9–16, Chairman Miscimarra would adhere to the Board’s
former approach, treating search-for-work and interim employment
expenses as an offset against interim earnings.
3 In finding that the Respondent violated Sec. 8(a)(5) by unilaterally
ceasing informal crane training, the judge did not distinguish between
training on the Liebherr and Lucas cranes. The Respondent asserts that
“the record is clear” that the alleged change pertained only to Liebherr
cranes and not “the old, out of service Lucas cranes,” and that “[t]he
General Counsel controls the Complaint, not . . . judge Bogas.” Con-
trary to the Respondent’s assertion, however, the complaint is not con-
fined to Liebherr cranes; it alleges that the Respondent “unilaterally
ceased its practice of allowing bargaining unit employees to obtain on
the job training . . . on cranes.” In any event, we find it unnecessary to
decide whether the Respondent unlawfully ceased informal training on
the Liebherr cranes only, or on both the Liebherr and the Lucas cranes,
because it would not materially affect the remedy.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made”); Sunoco, Inc., 349 NLRB 240, 245 (2007)
(same); In re Indian Memorial Hospital, Inc., 340 NLRB
467, 469 (2003) (same). Applying these principles, it is
clear that the Union made a bona fide demand for bar-
gaining in this case. At a meeting in April or May
2013,4 while the parties were discussing training for unit
employees, Union President Otis Brown expressed con-
cern that employees would be set up for failure if they
were required to attend a formal crane training program
and take the NCCCO written and practical examinations
without first getting informal “seat time” training.5 (Tr.
783–784.) During a follow-up conversation on June 5
between Brown and Director of Operations Terry Leach,
Leach asked the Union to suggest two unit employees to
participate in a formal crane training program in July.6
Brown responded that July was too soon because the
employees that he had identified had never been in a
crane before and they would be at a great disadvantage
unless they had some seat time first. Brown added that
the training committees “need to sit down and work out
something to get these guys some seat time.” (Tr. 784.)
Shortly after the June 5 conversation, Brown emailed
Leach and asked when they could meet. (Tr. 785.) He
also tried to call Leach to set up a meeting. (Tr. 787.)
On June 14, after receiving no response from Leach,
Brown sent Human Resources Manager Christopher
Blakely a letter explaining that the Union could not agree
to the July date because the trainees needed seat time
before they attended formal training. Brown ended the
letter by stating that “once again I am hereby asking the
company when our training committees can meet to work

4 All dates are in 2013 unless otherwise specified.
5 Until 2010, the Respondent’s crane operators received only infor-
mal, on-the-job training, which consisted of the following: first, the
trainee performed maintenance on the crane under the instruction of an
experienced operator; second, the trainee sat in the cab of the crane and
observed as an experienced individual operated the crane; and third, the
trainee operated the crane while an experienced operator was present in
the cab to provide oversight. The third step is referred to as “seat
time.” The Respondent’s practice has been to allow a senior unit mem-
ber to provide this informal training.
In 2010, the Respondent began requiring formal crane training
through an outside organization to prepare employees for NCCCO
certification, which entailed passing written and practical examinations.
Between 2010 and 2013, a number of unit employees, including Union
President Otis Brown, who had already been trained in crane operations
through the informal procedures described above, attended the formal
crane training program and became NCCCO certified. Three of these
employees, Brown included, were allowed to have informal seat time
training on the Liebherr cranes and even to operate the cranes without
first receiving NCCCO certification. Although they were experienced
crane operators, Brown and other unit employees had to take the
NCCCO examination multiple times before they passed.
6 The judge incorrectly stated that this conversation occurred in
April or May, instead of June 5. We correct the judge’s error, which
does not affect our disposition of this case.
out the details for this crane training program. Please, let
me know as soon as possible.” (GC Exh. 6.)
In late June, Leach again approached Brown about en-
rolling the employees in the July training session. Brown
reminded Leach that they had discussed the need to first
provide the employees with seat time and he requested
that they “sit down and work this out about the seat time
. . . that we had talked about.” (Tr. 790.) Leach replied
that the crane school administrators preferred that the
employees have no experience that might “taint their
minds.” Brown disagreed and suggested that they set
up a conference call with the crane school to discuss the
matter, but Leach, who was in his truck, ended the con-
versation by abruptly driving away. Id. Even after
Leach brushed Brown off and drove away, Brown con-
tinued his efforts to reach Leach to discuss the seat time
issue, but his efforts were ignored.7
There can be little doubt based on this sequence of
events that the Union sought to bargain with the Re-
spondent about providing seat time for crane trainees.
Every time the subject arose, Brown expressed the Un-
ion’s position that the trainees needed seat time before
they attended formal training and he repeatedly requested
that the parties meet to discuss the issue. In these cir-
cumstances, we find that Brown clearly communicated a
desire to bargain over the Respondent’s refusal to pro-
vide seat time as opposed to merely objecting to, protest-
ing, or complaining about the Respondent’s decision.
See Armour & Co., supra, 280 NLRB at 828 (finding a
request for bargaining where the union stated that it
“would like the opportunity to discuss with your compa-
ny your position”) (emphasis in original).8

7 Brown testified that he tried to call Leach multiple times after their
late June conversation, but Leach did not respond. (Tr. 791.) We do
not rely on an email the judge referred to as having been sent from
Brown to Leach after their late June conversation. Brown testified that
he sent Leach an email after their June 5 conversation. His testimony is
ambiguous concerning whether he also sent Leach an email after their
late June conversation, and no such email was made a part of the rec-
ord.
8 Ohio Edison Company; First Energy Generation Corp. v. NLRB,
847 F.3d 806 (6th Cir. 2017), cited by our dissenting colleague, is
distinguishable. In Ohio Edison, the employer informed the union’s
president of a number of planned changes, including significant reduc-
tions in the employees’ 401(k), retiree life-insurance and educational-
reimbursement benefits, and also a modest modification to the Employ-
ee Service Recognition Program. The union president replied, “Oh no
you don’t! Again? Now you know I have to file a board charge hon-
ey.” 847 F.3d at 809. He further stated that he would “have to come to
Akron [the respondent’s headquarters] for this one.” Id. The only
change litigated in Ohio Edison was the modification to the employee
recognition program. The Board found that the union president’s
statements constituted a request for bargaining over the changes to the
program, and that the union president had sufficiently “expressed a
desire to discuss the matter with the decisionmaker.” Ohio Edison Co.,
362 NLRB No. 88, slip op. at 1–2 fn. 5 (2015). In denying enforce-
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 3
II.
We also reject our colleague’s view that the Respond-
ent never implemented an actual “change” in its informal
training practices. That view is contrary to both credited
record testimony and the parties’ past practice, which
was firmly rooted in their expired collective-bargaining
agreement.
Our colleague asserts that the Respondent asked the
Union to identify two employees to undergo the formal
training necessary for NCCCO certification, and that the
Union did not do so. Thereafter, as he notes, the Re-
spondent did not arrange or provide for training of any
kind for unit employees. This, according to our col-
league, constituted maintenance of the status quo, not an
unlawful unilateral change. We disagree.
Union President Brown in fact identified three poten-
tial trainees to Leach, and in early June told Leach that “I
got the guys, they’re ready to go.” (Tr. 782–783.) As
discussed above, the sticking point was that Leach want-
ed to send the employees for formal training and
NCCCO certification in July, and Brown maintained that
this was too soon; he wanted to sit down and work out
with the Respondent how to get some informal seat time
for the prospective trainees beforehand. Brown followed
up with Leach and also wrote to Human Resources Man-
ager Blakely about getting the employees some informal
seat time prior to the formal training (see GC Exh. 6), but
this was to no avail.
Then, in late June, when Leach again approached
Brown about sending two unit employees to formal crane
training in July, Brown told Leach that he had checked
on the availability of formal training in September or
October, and stated that “we could sit down and work
this out about the seat time.” (Tr. 790.) Leach respond-
ed that the outside trainers he had talked to were opposed

ment, the court agreed that “[a] request to bargain need follow no spe-
cific form or be made in any specific words so long as there is a clear
communication of meaning, and the employer understands that a de-
mand is being made,” 847 F.3d at 810, quoting NLRB v. Barney’s
Supercenter, Inc., supra, 296 F.2d at 93. However, the court found that
the union president’s comments merely expressed disapproval and did
not clearly communicate a request to bargain over the changes to the
employee recognition program. In so finding, the court emphasized the
relative insignificance of the employer’s change to the employee
recognition program, compared to the more significant financial conse-
quences of the employer’s other simultaneously announced changes.
Under those particular factual circumstances, the court was “skeptical
that [the union president’s] comments reflected a desire to bargain
about [the employee recognition] program in particular” as opposed to
the other three “big-ticket” items the employer proposed to change.
847 F.3d at 811. By contrast, here Brown’s repeated requests to meet
and “work this out about the seat time” clearly communicated a desire
to engage in bargaining and there can be no doubt that Brown was
specifically seeking bargaining over the Respondent’s refusal to pro-
vide seat training as opposed to some other issue or issues.
to employees receiving informal seat training before the
formal training because it would “taint their minds,” and
then abruptly cut off the conversation by simply driving
away. From there on in, Leach ignored Brown’s contin-
ued efforts to get in touch with him about the matter.
The Respondent’s silence plainly closed the door on any
possibility of crane trainees receiving informal seat train-
ing before going through the formal training and receiv-
ing NCCCO certification. In those circumstances, we
have no trouble concluding that the Respondent in fact
had changed existing terms and conditions of employ-
ment by implementing a requirement that employees
obtain formal crane training and certification before they
could receive any informal seat time training.
Further, that change clearly was a departure from the
parties’ past practice under the applicable collective-
bargaining agreement. That agreement provided that
when conditions of “seniority” and “work availability”
warrant it, “a crane operator trainee will be placed in the
crane along with the crane operator for purposes of train-
ing.” (Emphasis added.) Indeed, as the judge noted and
the dissent acknowledges, between 2010 and 2013, three
of the Respondent’s employees, Brown included, were
allowed to have informal seat time training on the
Liebherr cranes, and even to operate the cranes, without
first receiving NCCCO certification. Nonetheless, in late
June 2013, the Respondent reneged on the still-binding
terms of the collective-bargaining agreement and told the
Union that it would no longer adhere to the parties’ past
practice. Thus, contrary to our colleague’s view, there
was a change to the status quo here. Historically, em-
ployees had access to informal seat training without the
obstacle of a formal training course and NCCCO certifi-
cation. Since late June 2013, they have not. That was an
unlawful unilateral change under the Katz doctrine. See
NLRB v. Katz, 369 U.S. 736 (1962).
III.
Finally, our decision is not, as our colleague asserts, at
odds with Section 8(d) of the Act or the Supreme Court’s
decision in H.K. Porter Co. v. NLRB, 397 U.S. 99
(1970). As the Court explained in H.K. Porter, Section
8(d) prohibits the Board from “compel[ling] agreement
when the parties themselves are unable to agree.” 397
U.S. at 108. Our Decision and Order does no such thing.
It does not impose a substantive term on the Respondent;
it merely requires the Respondent to restore the status
quo while it meets its obligation to bargain in good faith
with the Union. If, after bargaining in good faith, the
parties agree to modify or eliminate informal seat time
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
training, or they reach a valid impasse, the Respondent
will be free to implement the change.9
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. We shall order the
Respondent to offer Otis Brown full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
We shall further order the Respondent to make Otis
Brown whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). We shall also order the
Respondent to compensate Otis Brown for his search-
for-work and interim employment expenses regardless of
whether those expenses exceed interim earnings. King
Soopers, 364 NLRB No. 93, supra fn. 2. Search-for-
work and interim employment expenses shall be calcu-
lated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center,
supra. In addition, having found that the Respondent
unlawfully denied pay to Prentis Hubbard, and unilateral-
ly changed its past practices regarding the transfer of
aluminum, the unloading of calcium, and the availability
of informal crane training for unit employees, we shall
order the Respondent to rescind these unilateral changes
and make Prentis Hubbard and the other unit employees
whole for any loss of earnings and other benefits at-
tributable to its unlawful conduct. These make-whole
remedies shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Midwest Terminals of Toledo International,

9 While the parties are engaged in negotiations for a successor col-
lective-bargaining agreement, the Respondent must refrain from im-
plementing any changes in terms and conditions of employment until
the parties have reached an agreement or overall impasse in the nego-
tiations for an agreement as a whole, absent certain exceptions not
applicable here. Bottom Line Enterprises, 302 NLRB 373, 374 (1991).
Inc., Toledo, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees without first notifying the Interna-
tional Longshoremen’s Association, Local 1982 (the
Union) and giving it an opportunity to bargain.
(b) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization, or for participating in the Board’s process-
es.
(c) Denying pay to employees because of their support
for and activities on behalf of the Union or because of
their participation in the Board’s processes.
(d) Threatening employees with a delay in processing
their worker’s compensation claims if they engage in
activities on behalf of the Union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
“[E]mployees of the Company in stevedore and ware-
house operations such as longshoremen, warehouse-
men, crane operators, power operators, checkers, sig-
nalmen, winchmen, linemen, line dispatcher, dock
steward and hatch leaders…[but not] office, clerical,
professional and supervisory and security employees.”
(b) Rescind the change regarding the transfer of alu-
minum that was unilaterally implemented in August
2013, the change regarding the unloading of calcium that
was unilaterally implemented in November 2013, and the
change regarding the availability of informal crane train-
ing for unit employees that was unilaterally implemented
after June 23, 2013.
(c) Make the unit employees whole for any loss of
earnings and other benefits suffered as a result of the
unlawful unilateral changes, in the manner set forth in
the remedy section of the judge’s decision as amended in
this decision.
(d) Within 14 days from the date of this Order, offer
Otis Brown full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 5
(e) Make Otis Brown whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter, notify Otis Brown in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(g) Make Prentis Hubbard whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful denial of wages to him, in the manner set forth in the
remedy section of the judge’s decision as amended in
this decision.
(h) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 8,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Toledo, Ohio facility, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable 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

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since June 23, 2013.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 8 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. October 11, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting in part.
I agree with my colleagues’ decision that the Respond-
ent’s treatment of Prentis Hubbard violated Sections
8(a)(4) and (3) of the Act.1 Yet, I disagree with my col-
leagues’ finding that the Respondent violated Section
8(a)(5) based on the claim that the Respondent unilateral-
ly “discontinued” informal crane training (commonly
referred to as “seat time”) without giving the Union no-
tice and the opportunity for bargaining.
The record establishes that, in about 2010, the Re-
spondent began using two new mobile cranes, known as
Liebherr cranes.2 In connection with the transition to the
Liebherr cranes, the Respondent sought to have employ-
ees get certification from the National Commission for
the Certification of Crane Operators (NCCCO), which
involved attending a 2-week course. It is uncontroverted
that the Respondent permitted three incumbent employ-
ees/crane operators to operate the Liebherr cranes before
receiving NCCCO certification.
In early 2013, representatives of the Respondent and
the Union discussed having training for potential new
crane operators. In June 2013, the Respondent’s repre-

1 I agree that the Respondent violated Sec. 8(a)(4) and (3) with re-
spect to the finding that Hubbard was unlawfully denied pay to which
he was entitled. In this regard, however, I would find it unnecessary to
pass on the related 8(a)(5) allegation because finding this violation
would be cumulative and would not materially affect the remedy.
2 There is no allegation that the Respondent violated any duty to
bargain regarding the commencement of using these new cranes.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sentative, Terry Leach, asked Union Representative Otis
Brown to identify two unit employees who could attend
the course associated with NCCCO training, which the
Respondent wanted to occur before the employees had
informal “seat time” in the Liebherr cranes. Union Rep-
resentative Brown took the position that the order should
be reversed—that any new employee-trainees should be
given informal “seat time” training first, rather than im-
mediately attending a third-party course. After several
exchanges, the parties were unable to resolve this differ-
ence. The Union never requested bargaining on the is-
sue, and there is no evidence that the Respondent refused
to engage in bargaining.
In the circumstances presented here, I believe three
considerations render unreasonable my colleagues’ find-
ing that the Respondent violated Section 8(a)(5) of the
Act in regard to operation and training issues pertaining
to the Liebherr cranes.
First, even if the Respondent implemented a change—
specifically, whether or when Liebherr crane NCCCO
training and informal “seat time” would take place—the
record establishes that these issues were raised in ad-
vance with the Union, and there is no evidence that the
Union requested bargaining. In the absence of a bargain-
ing request, particularly when the Union was given ad-
vance notice of an employer’s potential changes, the
Board cannot find that the employer’s unilateral imple-
mentation of the changes violated Section 8(a)(5).3 As
the Sixth Circuit recently reaffirmed, it is well-
established that “‘the bargaining representative must do
more than merely protest the change; it must meet its
obligation to request bargaining.’” YHA, Inc. v. NLRB, 2
F.3d 168, 173 (6th Cir. 1993) (quoting Jim Walter Re-
sources, 289 NLRB 1441, 1442 (1988)).4
I believe the record contradicts my colleagues’ conclu-
sion that the Union requested bargaining. Here, the ma-
jority relies on Union President Brown’s testimony to the
effect that he suggested the parties could further discuss
“seat time.” Yet, the evidence precludes any finding that
this constituted a “request” for bargaining. To the con-
trary, the facts reveal that the parties, through Brown and
Leach, had already discussed the sequence of the
NCCCO certification training and seat time, and Leach

3 By finding that the Union sufficiently requested bargaining here,
my colleagues implicitly concede that the Respondent provided the
Union with sufficient notice and an opportunity to bargain over the
alleged “change” pertaining to informal crane training.
4 Ohio Edison Co.; First Energy Generation Corp. v. NLRB, 847
F.3d 806 (6th Cir. 2017), denying enforcement of the Board’s order in
Ohio Edison Co., 362 NLRB No. 88 (2015). The court denied en-
forcement of the Board majority’s decision for reasons similar to those
expressed in my partial dissenting opinion in the case. See id., slip op.
at 3–6 (Member Miscimarra, concurring in part and dissenting in part).
made clear that the NCCCO training must come first for
prospective new trainees lacking prior Liebherr crane
experience. Brown never requested bargaining over this
issue. At most, this testimony suggests that Brown mere-
ly persisted in the position he had staked out previously
regarding this issue; Brown continued to argue for seat
time to precede NCCCO training. See Ohio Edison v.
NLRB, 847 F.3d at 810 (“[T]o protest is to seek change
by expressing disapproval; to request bargaining, in con-
trast, is to seek change by signaling a willingness to offer
something in return.”).
Second, there is a more fundamental reason that the
Board cannot reasonably find that the Respondent’s ac-
tions regarding the Liebherr cranes violated Section
8(a)(5): the record does not establish that the Respond-
ent implemented any “change” affecting the timing or
requirements pertaining to formal NCCCO training and
informal crane operator “seat time.” It is important to
remember that the parties had no past practice regarding
the issue of training on the new cranes. Further, the
Liebherr cranes are not owned by the Respondent, but
rather by the Toledo-Lucas County Port Authority (Port
Authority), which permits the Respondent to operate
them under specified conditions. The Port Authority’s
conditions, which are set forth in a March 8, 2011 letter
of agreement from the Port Authority to the Respondent,
include that all operators of the Liebherr cranes must “be
fully trained in the operation of the [Liebherr] Cranes,
which shall include, but not be limited to, the require-
ment that each Crane operator obtain and maintain a
NCCCO Crane Operator Certification . . . .”
In raising these issues with the Union, the Respondent
asked the Union to suggest two employees who could
take the course associated with NCCCO training. The
record establishes that, after the Union chose not to iden-
tify anyone in the bargaining unit who would participate
in the NCCCO training without first receiving informal
“seat time” training, the Respondent never moved for-
ward with any changes or additional training—formal or
informal—for employees regarding operation of the
Liebherr cranes. Without the actual implementation of a
unilateral change, the Board cannot reasonably find that
the Respondent engaged in unilateral actions that violat-
ed Section 8(a)(5). See Post-Tribune Co., 337 NLRB
1279, 1280 (2002) (“[W]here an employer’s action does
not change existing conditions—that is, where it does not
alter the status quo—the employer does not violate Sec-
tion 8(a)(5) and (1).”) (citing House of the Good Samari-
tan, 268 NLRB 236, 237 (1983)). See generally NLRB v.
Katz, 369 U.S. 736, 743 (1962) (holding that a “unilat-
eral change in conditions of employment under negotia-
tion . . . is a circumvention of the duty to negotiate”).
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 7
Third, the record establishes that the substance of the
parties’ dispute—whether classroom training should oc-
cur before or after “seat time” training—remains unre-
solved, and as to the merits of this dispute, the Board
lacks authority to make any particular resolution binding
on the parties. Here, the Board’s lack of authority is ex-
plicit in our statute: Section 8(a)(5) makes it unlawful
for an employer to engage in a refusal to bargain collec-
tively, and Section 8(d)—which defines the phrase “bar-
gain collectively”—states the duty to bargain “does not
compel either party to agree to a proposal or require the
making of a concession.” See also H. K. Porter Co., Inc.
v. NLRB, 397 U.S. 99, 102, 108 (1970) (“[W]hile the
Board does have power under the National Labor Rela-
tions Act . . . to require employers and employees to ne-
gotiate, it is without power to compel a company or a
union to agree to any substantive contractual provision of
a collective bargaining agreement. . . . [A]llowing the
Board to compel agreement when the parties themselves
are unable to agree would violate the fundamental prem-
ise on which the Act is based—private bargaining under
governmental supervision of the procedure alone, with-
out any official compulsion over the actual terms of the
contract.”)
For these reasons, as to the above issue, I respectfully
dissent.
Dated, Washington, D.C. October 11, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT change your terms and conditions of
employment without first notifying International Long-
shoremen’s Association, Local 1982 (the Union) and
giving it an opportunity to bargain.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Union or any other
labor organization, or for participating in the Board’s
processes.
WE WILL NOT deny any of you pay because of your
support for and activities on behalf of the Union or be-
cause of your participation in the Board’s processes.
WE WILL NOT threaten any of you with a delay in pro-
cessing your worker’s compensation claims if you en-
gage in activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
“[E]mployees of the Company in stevedore and ware-
house operations such as longshoremen, warehouse-
men, crane operators, power operators, checkers, sig-
nalmen, winchmen, linemen, line dispatcher, dock
steward and hatch leaders…[but not] office, clerical,
professional and supervisory and security employees.”
WE WILL rescind the change in the terms and condi-
tions of employment for our unit employees regarding
the transfer of aluminum that we unilaterally implement-
ed in August 2013, the change regarding the unloading of
calcium that we unilaterally implemented in November
2013, and the change regarding the availability of infor-
mal crane training for unit employees that we unilaterally
implemented after June 23, 2013.
WE WILL make you whole for any loss of earnings and
other benefits suffered as a result of the unlawful unilat-
eral changes, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Otis Brown full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Otis Brown whole for any loss of earn-
ings and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Otis Brown, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that the discharge will not be used against him in any
way.
WE WILL make Prentis Hubbard whole for any loss of
earnings and other benefits resulting from his denial of
pay, plus interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 8, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
MIDWEST TERMINALS OF TOLEDO
INTERNATIONAL, INC.
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-119493 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Cheryl Sizemore, Esq., for the General Counsel.
Ronald L. Mason, Esq. and Aaron T. Tulencik, Esq., of Dublin,
Ohio, for the Respondent.
Otis Brown, of Toledo, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Cleveland, Ohio, on December 1, 2, and 3, 2014; in Toledo,
Ohio, on January 27, 28, 29, and 30, and April 7, 8, and 9,
2015; and in Bowling Green, Ohio, on April 20, 2015. The
International Longshoremen’s Association, Local 1982, AFL–
CIO (the Union, the ILA, or the ILA local) filed the charge in
case 08–CA–119493 on December 23, 2013, and amended
charges on February 13 and April 30, 2014. Prentis Hubbard,
an individual, filed the charge in case 08–CA–119535 on De-
cember 23, 2013, and amended charges on February 10, March
18, and April 22, 2014. The Acting Regional Director for Re-
gion 8 of the National Labor Relations Board (the Board) filed
the Consolidated Complaint (the Complaint) on April 30, 2014.
The Complaint alleges that Midwest Terminals of Toledo In-
ternational Inc. (the Respondent) violated Section 8(a)(5) when
it reassigned certain bargaining unit work involving aluminum
and calcium to nonunit employees, ceased to provide on-the-job
and formal training for unit employees on cranes and mobile
equipment, allowed supervisors and other nonunit employees to
perform unit work, changed its grievance procedure, and re-
fused to pay union steward Hubbard for a portion of a shift on
which he was injured. The complaint also alleges that the
change in grievance procedures was inherently destructive of
Section 7 rights in violation of Section 8(a)(3) and (1). The
complaint further alleges that the Respondent violated Section
8(a)(1) by making threatening statements to Hubbard and Don
Russell, and by restricting Russell’s movements around the
facility.
The complaint also alleges that the Respondent discriminated
in violation of Section 8(a)(3) and (1) and Section 8(a)(4) and
(1) of the Act when it discharged union steward Otis Brown
and when it refused to pay Hubbard for a portion of a shift on
which he was injured, and that it discriminated in violation of
Section 8(a)(3) and (1) when it disciplined and refused to hire
two employees who appeared for an assignment without protec-
tive eye glasses and when it restricted Russell’s movements
around the facility and disciplined him.
The Respondent filed a timely answer in which it denied that
it had committed any of the alleged violations. On the entire
record, including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following findings of
fact and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, provides stevedoring ser-
vices at its facility in Toledo, Ohio. From these activities, the
Respondent derives annual gross revenues in excess of
$500,000. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Since 2004, the Respondent has provided stevedoring and
warehousing services at the Port of Toledo in Toledo, Ohio. Its
work includes unloading and loading cargo vessels, railcars and
trucks, and moving cargo to and from warehouses. The Re-
spondent and its predecessors at the port facility have a dec-
ades-long bargaining history with the ILA. The Respondent
also has a separate bargaining relationship with unit of employ-
ees that are represented by Teamsters Local 20 (Teamsters).
Generally, the ILA unit performs stevedoring and warehouse
work on what is known as the “wet side” of the Respondent’s
facility, while the Teamsters unit works on the “dry side.” The
wet side of the facility runs along the Maumee River where the
vessels dock in order to be unloaded or loaded. To do their
work, the ILA workers operate a variety of types of equipment,
including forklifts, front end loaders (end loaders), and cranes.
The “order of call” list for April 2014, lists 36 individuals in the
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 9
ILA bargaining unit.1 Of those individuals, six were “skilled
list” employees who were generally expected to work on a
daily basis during the shipping season. The other employees
were on the “regular list,” which meant they worked more in-
termittently and generally only when there was no skilled list
employee available and qualified to do the work. If, after the
skilled list and regular list had been exhausted, there were still
openings, the Respondent hired from the casual/new-hire list.
The Teamsters unit performs warehouse work on the “dry
side” of the facility, which does not about the Maumee River.
The dry side of the facility is separated from the wet side by St.
Lawrence Drive, a road that runs through the property. There
are a total of six warehouses at the facility—three on the wet
side and three on the dry side. To do their work, the Teamsters-
represented employees generally operate forklifts.
The most recent collective-bargaining agreement between
the Respondent and the ILA2 covered the period from January
1, 2006, to December 31, 2010. At the time of the hearing, and
of all the alleged violations, the Respondent and the ILA con-
tinued to be bound by the terms of this expired agreement. The
evidence shows that during a period from approximately April
2010 to July 2012, the ILA local was placed in trusteeship
based on the perceived failure of the local officers to process
grievances and carry out other daily duties. During the trustee-
ship, officials of umbrella ILA organizations served as the trus-
tees of the ILA local. In July 2012, local leadership took con-
trol back from the trustees. Otis Brown, whose discharge is a
subject of the complaint, became the new president of the ILA
local at that time.
B. Loading and Transfer of Aluminum
Facts
1. Past Practice: The General Counsel alleges that since
about July 1, 2013, the Respondent has violated Section 8(a)(5)
and (1) of the Act by unilaterally depriving ILA-represented
employees of work regarding the loading and/or transfer of
aluminum cargo. When barges carrying aluminum dock at the
Respondent’s facility, ILA-represented employees unload the
aluminum and stage it on the wet side of the dock. The evi-
dence shows that from at least the time the Respondent took
over the dock operation in 2004 until August 2013 the estab-
lished practice was that the aluminum staged on the wet side
was transported to warehouses on the dry side using transfer
trucks. Those trucks were loaded by ILA-represented employ-
ees using forklifts, but driven by non-ILA employees. After the
trucks were loaded, the ILA workers would have no further
involvement with that aluminum. During some period of time
before 2010, the Respondent’s Teamsters-represented employ-
ees drove the transfer trucks that ILA members loaded, but
during the time period immediately preceding the alleged viola-

1 The order of call list is prepared by the Respondent with input
from the ILA.
2 That collective bargaining defines the unit as comprised of “em-
ployees of the Company in stevedore and warehouse operations such as
longshoremen, warehousemen, crane operators, power operators,
checkers, signalmen, winchmen, linemen, line dispatcher, dock stew-
ard, and hatch leaders.”
tion, employees of a third-party trucking company drove the
trucks.
The dispute involves the Respondent’s decision to stop using
ILA workers to load aluminum onto trucks prior to moving it
from the wet side to the dry side, and instead have Teamsters-
represented employees enter the wet side of the dock on fork-
lifts, and use those forklifts to scoop up the aluminum and
move it to the dry side of the dock. This change meant that the
ILA-represented employees were deprived of the work of load-
ing the aluminum for transport to the dry side. Terry Leach, the
Respondent’s director of operations since July 2007, testified
that the new system allowed him to move the aluminum “ten
times faster” than the system that used transfer trucks loaded by
the ILA members.
At the hearing, the Respondent contended that before the
time of the alleged change, it was already the company’s prac-
tice to have Teamsters-represented employees drive forklifts
onto the wet side of the dock to pick up the aluminum and carry
it back to the dry side of the dock. That contention is rebutted
by the credible evidence. Multiple witnesses for the General
Counsel, including present and former employees Brown,
Christopher Fussell, Kevin Newcomer, and Miguel Rizo credi-
bly testified that it was a change in the established practice
when, in 2013, the Respondent began having Teamsters enter
the wet side on forklifts to transfer aluminum to the dry side.
This testimony from the General Counsel’s witnesses was sup-
ported even by the Respondent’s own witness, Charles Erich-
son, a Teamsters steward who has worked at the facility since
before the Respondent took over the operation. Erichson testi-
fied that the standard practice had always been for aluminum to
be moved from the wet side to the dry side using transfer trucks
loaded by the ILA employees. Erichson did recount that, for a
period in 2005 and 2006, the Respondent had occasionally used
Teamsters-operated forklifts to transfer aluminum from the wet
side to the dry side when the quantity was small, but he stated
that even during that period the ILA-loaded transfer trucks were
the standard means of moving the aluminum. Erichson testified
that even this limited use of Teamster-operated forklifts to
transfer aluminum from the wet side had ceased after about
2006.
I find that the testimony recounted above, and the record as
whole, outweighs Leach’s contrary assertion that having Team-
sters members transport aluminum by driving forklifts onto the
wet side of the facility was not a change from the past practice.
That assertion was contrary to Leach’s own prior sworn state-
ment recognizing that the Respondent had previously moved
the aluminum by having the ILA members “load[] the material
in third-party trucks.” See Transcript at page(s) (Tr.) 539 ff.
Moreover, Leach’s testimony that there was not a change in
practice is inconsistent with his contemporaneous efforts, de-
scribed below, to justify using Teamsters-operated forklifts to
transfer aluminum from the wet side by claiming that doing so
was a change authorized by a recent—April 30, 2013—decision
by the Board.3 Similarly, Brad Hendricks, the Respondent’s

3 In general, I found Leach a less than fully credible witness regard-
ing disputed matters. His testimony was, by turns, unusually evasive,
see e.g., Tr. 1790–1794 (avoids answering reasonable questions by
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
operations manager, identified the Board’s April 30 decision,
rather than past practice, as the Respondent’s basis for begin-
ning to send Teamsters-represented employees to the wet side
on forklifts to transport material. (Tr. 1245–1246.)
2. Prior Jurisdictional Decision: On April 30, 2013, the
Board issued a decision in a jurisdictional dispute proceeding
under Section 10(k) of the Act regarding the division of work
between the ILA unit and the Teamsters unit at the Respond-
ent’s facility. 359 NLRB 983 (2013).4 In that decision, the
Board considered the applicable standards and decided to as-
sign work between the ILA unit and the Teamsters unit “in
accordance with the Employer’s past practice.” The Board
rejected the Respondent’s request to have the disputed work
assigned exclusively to the Teamsters unit since the Respond-
ent’s request was, in the Board’s words, “unsupported by con-
siderations of economy, efficiency, or skill, and it is contrary to
the Employer’s past and current practice.” The Board held that
the ILA employees were “entitled to perform, in a manner con-
sistent with past practice, all loading, unloading and movement
of cargo and material on the wet side of St. Lawrence Drive . . .
including the loading of any trucks used to transfer cargo and
materials across St. Lawrence Drive, subject to the proviso set

repeatedly claiming that he does not understand them, and by interpos-
ing his own objection that a document speaks for itself), Tr. 1797–1798
(convenient lapses in memory), Tr. 723 (When asked if he knew
whether a maintenance employees requested that an outside mechanic
state in his report that an ILA member’s error was the cause of damage,
Leach did not initially answer, but rather adopted an indignant demean-
or and stated “Why would [the maintenance employee] do something
like that?” As discussed, infra, the record shows that, in fact, the
maintenance employee did make such a request to the outside mechan-
ic.), and self-contradictory, see, e.g., Tr. 1737–1740 (Leach testifies
that Teamsters were “busy bees” on the wet side of facility and used
forklifts to transfer cargo from the wet side to the dry side, but in his
prior affidavit Leach stated that if product needed to be transferred
from the wet side to the dry side the Respondent used transfer trucks),
Tr. 1805–1808 (first Leach testifies that Brown did not unload ships
using the Liebherr cranes prior to becoming certified, then Leach testi-
fies that he does not recall whether Brown unloaded ships using the
Liebherr cranes prior to becoming certified, and then Leach emphatical-
ly testifies that Brown did not unload ships using the Liebherr cranes
prior to becoming certified). Moreover, some of Leach’s behavior on
the stand bordered on bizarre. For example, at one point when counsel
for the General Counsel directed his attention to portions of an exhibit,
Leach dramatically lurched back in the witness stand and raised his
hands as if to fend off a physical attack by counsel. In another, he
excitedly interrupted counsel for the General Counsel’s examination
and complained that counsel did not have to “yell at” him, even though
counsel was posing questions in a manner that was measured and ap-
propriate in both volume and tone. Tr. 551–552.
4 This Section 10(k) decision was issued by the Board during the pe-
riod when the Supreme Court later held that the Board lacked a valid
quorum. See NLRB v. Noel Canning, See NLRB v. Noel Canning, ____
U.S. ____, 134 S.Ct. 2550 (2014). However, no party to the Section
10(k) proceeding appealed the Board’s decision. Therefore, the
Board’s decision regarding how work at the Respondent’s facility is to
be divided between the ILA unit and the Teamsters is binding on the
parties to that dispute. The General Counsel and the Respondent dis-
cuss the 10(k) decision in their posthearing briefs in the instant case,
but neither contends that the validity of the Board’s jurisdictional de-
termination is undermined by Noel Canning.
forth below.” The Board further stated that the Teamsters em-
ployees “are entitled to perform the loading, unloading, and
movement of cargo and materials on the east/dry side of St.
Lawrence Drive at the Employer’s facility; provided, that these
employees are also entitled to enter the west/wet side of the
facility in order to transport cargo that is to be transferred from
the wet side to the dry side across St. Lawrence Drive.” “As to
the work of transporting cargo from the wet side over to the dry
side, currently being performed by the [third-party] trucking
company,” the Board explained, “we award the work to the
Teamsters-represented employees because they are capable of
performing this work and did so before the Employer contract-
ed with the trucking company in 2007.” The Board in no way
suggested that in awarding the existing work of transporting
material from the wet side to the dry side to the Teamsters unit,
it was authorizing the Respondent to deprive the ILA-
represented employees of the work that they had historically
done loading the transfer trucks. In fact, the Board’s decision
makes multiple references to continuing the past practice and to
the past practice of using trucks loaded by the ILA unit to per-
form this work, but make no reference at all to Teamsters
members on forklifts entering onto the wet side of the facility.
The Respondent’s claim that the Board’s jurisdictional decision
deprived the ILA-represented employees of the right to the
aluminum loading work that those employees had performed
under the established past practice is consistent with what the
Respondent tried to accomplish during that proceeding, but it is
not consistent with what it actually did accomplish. That deci-
sion did not authorize the Respondent’s action and, if anything,
is at odds with it, since the Board explicitly awarded the ILA-
represented employees the work of loading trucks to transport
material from the wet side to the dry side consistent with past
practice.
3. Subsequent Confrontations at the Dock Regarding the
Use of Teamsters-Operated Forklifts to Transfer Aluminum:
On June 1, 2013, the Respondent had Teamsters-represented
employees drive three to five forklifts to the wet side of the
dock to pick up and move aluminum to the dry side of the dock.
The ILA immediately challenged the Respondent’s action and
when the Respondent did not cease, the ILA employees stopped
staging the aluminum where the Teamsters employees could
reach it on their forklifts. Then three ILA unit employees—
Hubbard, Fred Victorian Jr.,5 and Russell Sims—met with
Leach about the matter. Leach told the three employees that
the Board’s April 30, 2013, decision in the 10(k) proceeding
had authorized the Respondent to use the Teamsters to pick up
the aluminum on forklifts. Hubbard contradicted that, stating
that the Board ruled that the Teamsters could transport the alu-
minum consistent with the past practice of using trucks loaded
on the wet side by ILA-represented employees. Victorian se-
conded Hubbard’s position, and the conversation between
Hubbard and Leach became heated. Leach held his thumb and

5 There are references in the record to four different employees with
the surname Victorian. Of those four, Fred Victorian Jr. plays the most
prominent role in the litigation and I refer to him in this decision as
“Victorian.” The only other one of the four who is discussed in this
decision is Joe Victorian Sr., and I refer to him as “J. Victorian.”
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 11
index finger close together and told Victorian, “I’m about this
far off your ass.” Eventually, Leach told Hubbard that the ILA-
represented employees should go back to work and that he had
directed the Teamsters-represented employees to stop using
forklifts to retrieve aluminum from the wet side of the facility.
Approximately 2 months later, on August 5, Leach raised the
issue again—informing Hubbard that Teamsters-represented
employees would be driving to the wet side on forklifts that day
to pick up and move aluminum. Hubbard responded that this
was not permissible, and Leach said that he would contact
Brown about the issue. Subsequently, Hubbard talked to
Brown, who told Hubbard to have the ILA-represented em-
ployees gather where the Teamsters-represented employees
were driving forklifts onto the wet side of the facility. The ILA
members blocked the path of the Teamsters members and one
of the ILA members urged the Teamsters not to “come over
here and start no shit.” Leach and Brown both arrived at the
scene, and Brown stated to Leach, “you can’t have them com-
ing over here taking our stuff.” Leach showed Brown a copy of
the Board’s April 30 decision in the Section 10(k) case and told
Brown that the decision provided that the Teamsters-
represented employees could enter the wet side on forklifts to
retrieve the aluminum. Brown disputed Leach’s claim about
what the decision said, and eventually Leach said, “It’s going to
stop now. Y’all go on back to work.” The ILA members re-
sumed their normal duties. On August 10, the ILA received
information that Teamsters members were again moving mate-
rial from the wet side using forklifts. Since approximately that
time, the Respondent has been having Teamsters members use
forklifts to move aluminum from the wet side to the dry side of
the facility.
Analysis
The General Counsel alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally changing its
practice regarding the ILA-represented employees’ participa-
tion in the transfer of aluminum from the wet side of the facili-
ty. As discussed above, in the late summer or early fall of
2013, the Respondent changed how it moved aluminum from
the wet side to the dry side of the facility in a manner that de-
prived the ILA-represented employees of work loading the
aluminum. Where, as here, employees are represented by a
union, their employer violates Section 8(a)(5) of the Act by
making a unilateral change regarding a mandatory subject of
bargaining. NLRB v. Katz, 369 U.S. 736 (1962); Whitesell
Corp., 357 NLRB 1119, 1171 (2011); Ivy Steel & Wire, Inc.,
346 NLRB 404, 419 (2006); Mercy Hospital of Buffalo, 311
NLRB 869, 873–874 (1993); Associated Services for the Blind,
Inc., 299 NLRB 1150, 1164–1165 (1990). The Board has held
that such changes include ones that eliminate bargaining unit
work or reassign it to nonunit individuals. Mi Pueblo Foods,
360 NLRB 1097, 1097–1099 (2014); O.G.S. Technologies,
Inc., 356 NLRB 642, 645–647 (2011); Spurlino Materials,
LLC, 353 NLRB 1198, 1218–1219 (2009), enfd. 645 F.3d 870
(7th Cir. 2011); Winchell Co., 315 NLRB 526 (1994), enfd. 74
F.3d 1227 (3d Cir.1995). The prohibition on unilateral changes
applies to established past practices even if, as in the case of the
aluminum work at issue here, the practices are not set forth in a
collective-bargaining agreement. Golden State Warriors, 334
NLRB 651 (2001), enfd. 50 Fed. Appx. 3 (D.C. Cir. 2002);
Exxon Shipping Co., 291 NLRB 489, 493 (1988). In this case,
the Respondent did not give, and does not claim to have given,
notice and an opportunity to bargain before making a change
that deprived the ILA-represented employees of aluminum
loading work that they had been performing for many years
under the established practice.
In its brief, the Respondent defends its actions by arguing, as
it did to the ILA local, that the change was authorized by the
Board’s prior Section 10(k) decision. As discussed above, that
decision awards the Teamsters-represented employees work
that at that time was being performed by a third-party trucking
company. That work consisted of driving trucks onto the wet
side of the facility in order to transport material to the dry side
of the facility. The decision discusses the established past prac-
tice of having the ILA-represented employees load the alumi-
num onto those trucks and awards all loading work on the wet
side of the facility to the ILA-represented employees. Contrary
to the Respondent’s contention, there is nothing in that decision
stating that any loading work on the wet side is being awarded
to the Teamsters-represented employees, nor is there anything
that authorizes a change that would deprive the ILA members
of loading work that it was the established past practice for
them to perform. I reject the Respondent’s defense and find
that it failed to bargain in good faith, and therefore violated
Section 8(a)(5) and (1), when it made a change that deprived
the ILA-represented employees of work loading aluminum on
the wet side of the facility without giving the ILA notice and an
opportunity to bargain.
In reaching the conclusion that the Respondent violated Sec-
tion 8(a)(5) and (1) with respect to the aluminum loading work,
I was given pause by Leach’s suggestion that the loading work
that the ILA is trying to preserve is not necessary work. How-
ever, the Respondent does not make a factual or legal argument
on that issue and I am left with little other than, on the one
hand, Leach’s statement that he could accomplish the task “ten
times faster” by eliminating the ILA loading work and, on the
other hand, the long history of management relying on the ILA
loading work to accomplish that task. Relative to this concern,
I make clear that I am not awarding the ILA the work of load-
ing aluminum for transfer from the wet side to the dry side, but
only requiring that the Respondent restore the status quo in that
regard while it meets its obligation to bargain with the ILA in
good faith. It could be that such bargaining will not result in
the preservation of that work because of benefits that might
flow from eliminating it, but the arguments in that regard
should in the first instance be discussed between the Respond-
ent and the ILA in the bargaining context. As the Supreme
Court has noted, even when “it is not possible to say whether a
satisfactory solution could be reached, national labor policy is
founded upon the congressional determination that the chances
are good enough to warrant subjecting such issues to the pro-
cess of collective negotiation.” Fibreboard Paper Products,
Corp. v. NLRB, 379 U.S. 203, 214 (1964). Such bargaining
may lead the parties to a mutually acceptable agreement, or it
may lead to an impasse that will privilege the Respondent to
make the change unilaterally.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For the reasons discussed above, I find that since August
2013 the Respondent has violated Section 8(a)(5) and (1) by
unilaterally changing its established past practice regarding the
transfer of aluminum at the facility in a manner that deprived
the ILA unit of loading work that it had performed under the
established past practice.
C. Loading, Unloading and Transfer of Calcium
Facts
The complaint alleges that, since about November 8, 2013,
the Respondent violated Section 8(a)(5) and (1) by unilaterally
reassigning the loading, unloading, and shipping of calcium to
non-bargaining-unit employees. The General Counsel clarifies
that the Respondent allegedly did this by changing its practice
of transmitting calcium by truck to ILA-serviced warehouses
where it would be unloaded by ILA members and unilaterally
beginning to have the trucks transmit the calcium instead to
Teamsters-serviced warehouses where it would be unloaded by
Teamsters members.
The evidence showed that the Respondent stores cargo at
various warehouses, including three on the wet side and three
on the dry side of its facility. Some types of cargo can only be
stored in warehouses that have a special certification or trade
status. However, the parties have not demonstrated that the
storage of calcium was subject to these constraints. The record
does not explain with any specificity how the Respondent goes
about choosing which of the available and permissible ware-
houses it uses to store a particular shipment.
Multiple witnesses for the General Counsel, including
Brown and Rizo, gave credible testimony that, prior to Novem-
ber 2013, the Respondent’s practice was for ILA members to
unload the calcium cargo from barges onto the dock and then
load the cargo onto trucks that transported the calcium exclu-
sively to ILA-serviced warehouses where ILA members un-
loaded it. In November 2013, the Respondent changed this
practice and began to have the trucks transport the calcium to
Teamsters-serviced warehouses where the ILA members would
have no involvement with unloading it. I credit this account,
which was not meaningfully contradicted.
In November 2013, when ILA members observed that the
trucks were moving the calcium to Teamsters-serviced ware-
houses rather ILA-serviced warehouses, the ILA protested by
ceasing to unload the calcium from the barge. About an hour
after this conflict arose, Leach told the ILA members that “it
had been resolved, go back to work.” The ILA members com-
plied, and resumed unloading the calcium from the barge. That
day, the Respondent did not transport any more loads of calci-
um to the Teamsters-serviced warehouses, but it has subse-
quently resumed doing so. The Respondent made this change
without giving the ILA notice and opportunity to bargain.
Analysis
As discussed above, an employer violates Section 8(a)(5)
and (1) of the Act, if it does not give the collective-bargaining
representative of employees notice and an opportunity to bar-
gain before making a change that eliminates bargaining unit
work or reassigns it out of the bargaining unit. See, e.g., NLRB
v. Katz, supra, Mi Pueblo Foods, supra, O.G.S. Technologies,
supra, Spurlino Materials, supra. The Respondent committed
such a violation here by unilaterally changing its established
practice6 of using ILA unit members to unload calcium from
transfer trucks at ILA-serviced warehouses, and instead begin-
ning to use Teamsters unit members to perform the calcium
unloading work at Teamsters-serviced warehouses.
The Respondent does not deny that it made this change, or
attempt to assert that special circumstances justify making the
change without good-faith bargaining. Instead, as with the
change to aluminum work, the Respondent contends that the
Board’s April 30 decision in the Section 10(k) jurisdictional
case authorized its action. That contention is without merit.
The fact that that decision awards the Teamsters unit any work
transporting material from the wet side to the dry side, in no
way suggests that the Board is authorizing the Respondent to
unilaterally change its established practice of storing coal in
ILA-serviced warehouses. The Respondent’s argument is an-
other example of it confusing what it tried to accomplish during
the 10(k) proceeding with what it actually accomplished.
I want to make clear that I am not suggesting that the Re-
spondent is prohibited from changing its practice of assigning
to ILA employees the work of unloading calcium from trucks.
The Respondent did not violate the Act because it made such a
change, but because it made such a change without giving the
bargaining representative of the ILA unit notice and an oppor-
tunity to bargain. As with the aluminum work discussed above,
the Respondent will be required to restore the status quo ante
pending good-faith bargaining.
For the reasons discussed above, I find that since November
2013, the Respondent has violated Section 8(a)(5) and (1) by
unilaterally reassigning calcium unloading work historically
performed by the ILA bargaining unit employees to others out-
side the unit.
D. Training on Cranes, Forklifts, and End Loaders
Facts
The General Counsel alleges that the Respondent’s past
practice under the collective-bargaining agreement included
offering both formal and informal training to ILA-represented
employees on the operation of cranes, forklifts and end loaders
and that the Respondent unilaterally changed these practices in
that “by early July 2013” it “had no intention of training em-
ployees.” The Respondent denies this, and contends that it has
continued to offer training to the ILA employees and that any
changes to the manner in which it offered that training occurred

6 The General Counsel asserts that, under the collective-bargaining
agreement, the calcium is “designated as product to be handled,” by the
ILA. To the extent that the General Counsel is contending that the
Respondent’s action violated a condition established by the collective-
bargaining agreement (as opposed to a condition established through
past practice) I reject that contention. The collective-bargaining
agreement does include a list of over 30 categories of “obnoxious and
distressed cargo,” including calcium nitrate and calcium chloride, and
provides that ILA members are entitled to premium pay if they handle
those types of cargo. Joint Exhibit (Jt. Exh.) 1 at Sec. 15. The contract
does not, however, provide that the handling of any of the types of
obnoxious cargo listed is to be performed exclusively by the ILA unit,
or even provide that the ILA will perform any such work.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 13
outside the 6-month charge filing period under Section 10(b) of
the Act.
When Leach began working for the Respondent in 2007, he
found that the company did not have training records evidenc-
ing the qualifications of employees who the company was treat-
ing as qualified to operate various types of equipment. He
decided to “grandfather in” all the employees who the Re-
spondent already recognized as qualified, but he also wanted to
get something “on the record” showing “we did try to provide
training, formal setting, third party, that actually qualified these
guys as far as what they could and could not do on a piece of
equipment.” The record indicates that Leach did make efforts
to do that, but that such efforts proceeded somewhat lurchingly
and not always in the same direction.
1. Crane Training: Operating the cranes requires a greater
level of skill and training than operating the end loaders and
forklifts, and the ILA members who operate cranes at the Re-
spondent’s facility receive the highest rate of pay of any of the
unit employees. The collective-bargaining agreement includes
a section on training that specifically discusses crane operators.
Joint Exhibit (Jt. Exh.) 1, Section 28. That section states in
relevant part:
The Company will man the crane operator’s position as work
opportunities warrant both in terms of seniority and in terms of
work availability. When such conditions warrant, a crane oper-
ator trainee will be placed in the crane along with the crane
operator for purposes of training.
The training provision in the agreement also includes general
language that is broad enough to cover training on the cranes,
as well as the end loaders and forklifts. That language provides
in part:
The company shall provide reasonable training opportunities
for all employees in all classifications. In this regard, the
Company shall implement a training program for each classi-
fication within 180 days of the effective date of this Agree-
ment. Further, the Company will allow bargaining unit em-
ployees to train with equipment during off hours under the
following conditions:
1. The employee provides reasonable notice to the Company
of at least forty-eight hours;
2. The employee shall not be paid for such “off hours” train-
ing;
3. The Company has equipment available for such off hours
training that will not impede with the regular operational
maintenance schedules of the equipment;
4. The Company will establish the times of year, days of the
week and times of the day when training may be conducted;
5. Hours spent training during “off hours” will not count to-
wards seniority;
6. The Company will not be required to provide paid supervi-
sion during off hours training.
The Company may schedule additional training sessions with
outside suppliers.
Over the course of the last number of years the type of
cranes the Respondent’s employees operated changed, and this
has had implications for the crane training required. Until
2010, the Respondent operated two types of cranes—known as
Gantry cranes and Lucas cranes—at the facility. Employees
received informal, on-the-job, training to operate these cranes,
not formal training by third parties. The informal crane training
for employees who had no prior crane operation experience
generally consisted of the following: first, the trainee performed
maintenance on the crane under the instruction of an experi-
enced operator; second, the trainee sat in the cab of the crane
and observed as an experienced individual operated the crane;
and third, the trainee operated the crane while an experienced
operator was present in the cab to provide oversight. The third
step is referred to at the facility as “seat time.” The contract
provides that the trainee is to provide the Respondent with at
least 48 hours’ notice when he or she plans to train on the
equipment during off hours, but there was testimony that
Leach, or another manager, was sometimes the one that initiat-
ed the seat time training.
The experienced operator who provided almost all of the in-
formal training during the years leading up to alleged unlawful
change was John Murphy. Witnesses identified Murphy as the
crane supervisor or the crane “guru” and the record indicates
that he had many decades of experience operating the cranes.7
The training that Murphy provided was “informal” only in the
sense that it was not run by a third-party training entity. The
record establishes that Murphy’s training was, in fact, very
methodical and demanding. Brown, Fussell, and Newcomer
were among those ILA-represented employees who became
qualified crane operators under Murphy’s tutelage. The record
does not pinpoint when Murphy last trained a unit employee to
operate a crane, although it does show he trained Newcomer in
2008 and Fussell who began working for the Respondent in
June 2008, and there was uncontradicted testimony that Mur-
phy continued to provide training until his failing health pre-
vented him from continuing to do so. Murphy died at some
point between approximately late 2011 and early 2012. The
Respondent designated Jordan Salhoff, a maintenance employ-
ee who is not affiliated with the ILA, to be Murphy’s successor
as crane supervisor.
In approximately 2010, the Respondent began using two
new, more modern, mobile cranes, known as the Liebherr
cranes. At that time, the Respondent ceased operating the Gan-
try cranes and later, in the beginning of 2014, the Respondent
also ceased operating the Lucas cranes. The Liebherr cranes
are not owned by the Respondent, but rather by the Port of
Toledo, which allows the Respondent to operate them, but
places conditions on such operation. The Port’s conditions,
which are set forth in a letter from the Port to the Respondent
and were also testified to by witnesses, include that all crane
operators for the Liebherr cranes must be certified by the Na-
tional Commission for the Certification of Crane Operators
(NCCCO). See General Counsel Exhibit (GC Exh.) 11. How-
ever, neither that letter nor the testimony, show that the Port
was requiring that crane trainees obtain NCCCO certification
before receiving informal training on the Liebherr cranes under
the direct oversight of individuals who were NCCCO certified.

7 Murphy’s union status was unclear. He paid union dues, but is not
included on the “order of call” lists submitted at the hearing.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In early 2010, just prior to the start of the trusteeship period,
the Respondent notified employees that it would be bringing in
the Liebherr cranes and that operators would require additional
certification to qualify to operate them. Brown, who was not
yet president of the ILA local, initiated a grievance over this
development. Later in 2010, when the trustees assumed control
of the ILA local, the Respondent met with the trustees and in-
formed them about the switch to the Liebherr cranes and ex-
plained that the Port was requiring that the crane operators for
that equipment be NCCCO certified. The ILA trustees did not
agree to the NCCCO certification requirement, which they
understood as being relevant to construction work, not maritime
work, and which, in the trustees’ experience, was not imposed
on ILA-represented crane operators at other ports. Despite the
ILA’s position, the Respondent selected individuals who it had
previously deemed to be qualified crane operators to attend a 5-
day formal NCCCO training with a third-party trainer located
in Ohio. Those individuals then took a written test and a practi-
cal test, both of which they had to pass in order to become
NCCCO certified. Once an employee became NCCCO certi-
fied, it was still up to the Respondent to make the final deter-
mination as to whether that employee was “qualified” to oper-
ate the Liebherr cranes for the Respondent. Leach was the one
who made this determination, and he did so by watching the
employee operate the crane. The certification training did not
actually take place on Liebherr cranes, and the employees who
completed that training still had to learn how to work the spe-
cific controls on the Liebherr cranes. They did this by studying
written materials and/or by receiving instruction from an expe-
rienced individual at the facility.
The ILA apparently did not refuse to cooperate with this
process as it applied to members who were previously qualified
by the Respondent to operate cranes. From 2010 to 2012, a
number of ILA members participated and became NCCCO
certified and qualified to operate the Liebherr cranes for the
Respondent. These unit employees included Randy Baumert,
Brown, Fussell, and Newcomer. The Respondent also sent a
number of nonunit individuals for the formal crane training and
testing. These included Brad Hendricks (operations manager),
Ryan “Moose” Richardson (maintenance employee), and
Salhoff (maintenance employee).8 Not all the persons sent for
the training passed the NCCCO certification test the first time.
Both Brown and Baumert required multiple attempts. The
Respondent allowed Brown, Baumert, and Newcomer to have
informal training on the Liebherr cranes at the Respondent’s
facility before they became NCCCO certified. In Newcomer’s
case such informal training was permitted even before he at-
tended the formal third-party training.
At some point between March and May 2013, the Respond-
ent and the ILA had a meeting to discuss training unit members
on the cranes and other mobile equipment. Present for the Re-
spondent were Leach, Lauri Justen (human resource director),
and Christopher Blakely (human resource manager). Present
for the Respondent were Brown (president of the ILA local)

8 As is discussed below, the collective-bargaining agreement pro-
vides that the Respondent is entitled to use nonunit individuals to oper-
ate equipment when a qualified unit member is not available to do so.
and Ray Sims (financial secretary of ILA local). Brown testi-
fied that at that point the ILA was concerned because the Re-
spondent had lost three of its crane operators and, as a result,
the Respondent was sometimes using nonunit individuals to
operate the cranes. Leach stated that financial considerations
were limiting the Respondent’s willingness to provide training
and he asked if the ILA would be willing to share part of the
cost of training. Brown declined, and stated that under the
collective-bargaining agreement the Respondent had to provide
the training. The parties discussed training two or three new
crane operators, four to six end loader operators, and an un-
specified number of forklift operators, but an agreement was
not reached.
In April or May 2013, Leach approached Brown about send-
ing two unit employees to a formal, third-party, training for
NCCCO certification. The unit employees for whom crane
training was discussed at this point, unlike the previous group
of crane trainees, had not previously been qualified by the Re-
spondent to operate cranes. Given the lack of crane experience
among these potential trainees, the Respondent was not offering
the 5-day NCCCO training that Brown and other qualified
crane operators had received, but a more extensive, 2-week,
course designed for persons who had not previously operated a
crane. Leach asked Brown to pick two unit employees to re-
ceive the formal training in July. Brown refused to do so, stat-
ing that July was too soon and that the Respondent was setting
up the potential trainees for failure by sending them for the
formal training without first providing them with informal, seat
time, training. Brown left this conversation with the under-
standing that Leach had agreed to allow the persons who would
be sent to the formal training course to receive prior informal
training by unit members.
By letter to Brown dated June 7, 2013, Blakely repeated
Leach’s request that the ILA select two unit employees to re-
ceive crane training for NCCCO certification beginning on July
15, 2013. Brown responded, in a letter dated June 14, by stat-
ing that he “could not agree on the July 15 date” because the
trainees would be “at a great disadvantage going in to that
school” without prior informal training. He stated his under-
standing that the parties were going to work on how to provide
seat time training to employees in advance of those employees
testing for NCCCO certification and took the position that the
training committee would have to meet to do this. He stated
that both himself and Fussell were prepared to provide informal
crane training to unit members.
Subsequently, in late June, Leach again spoke to Brown
about sending unit members to the crane training school and
Brown proposed that the training be provided not in July, but in
September or October so that the prospective trainees would
have the opportunity to receive informal, seat-time, training
prior to the formal training. Leach told Brown that the crane
school administrators preferred that the participants for the
extended 2-week training have no experience that might “taint”
their minds. After this late June conversation, Brown reached
out to Leach, including by email, to further discuss crane train-
ing, but he received no response from Leach. Neither Brown,
nor anyone else with the ILA, provided management with the
names of unit employees who the ILA agreed to have partici-
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 15
pate in the formal training that the Respondent was offering.
The Respondent did not contact Brown about scheduling crane
training at a later date or state that it would permit trainees to
receive informal training before the formal NCCCO course.
Blakely testified that the Respondent’s position was that it
would not permit employees to have informal seat time training
on the Liebherr cranes if they were not NCCCO certified.9
In early 2014, the Respondent stopped operating the Lucas
cranes. The Respondent never required employees to have
NCCCO certification to operate the Lucas cranes. The last time
any employees had informal, seat time, training on the Lucas
cranes was in approximately December 2012.
2. End Loader: In 2008, the Respondent had an outside con-
tractor provide end loader training to employees at the facility.
This training was provided primarily for the benefit of the em-
ployees Leach had grandfathered in as end loader operators, but
for whom he had no training records. However, documentary
evidence shows that Brown completed end loader safety train-
ing in April 2008 even though the order-of-call lists from April
2007 and June 2008 do not show that the Respondent previous-
ly recognized him as qualified to operate the end loader. See
(GC Exhs. 31and 52). There has been no formal end loader
training since that time. During the period of trusteeship the
process reverted to one where unit employees who were experi-
enced on the end loaders provided seat time training to unit
employees. Fussell was among the employees trained in that
manner who the Respondent determined became qualified to
operate the end loaders. Leach testified that he has continued
to allow inexperienced employees to get seat time on the end
loaders when there is availability, but he stated this “didn’t
work out too well” and that it was “very rare” that employees
trained in this manner.
The record does not demonstrate that there were instances
when the Respondent took the initiative to offer employees the
opportunity to have informal training on the end loaders, but
neither does it demonstrate instances when unit employees, as
provided for by the collective-bargaining agreement, gave the
Respondent notice that they wanted to engage in end loader
training. As noted above, during a meeting in about March to
May 2013, representatives of the ILA and management met and
discussed future training, including the possibility of training
between four and six individuals as end loader operators.
However, it is not clear from the record whether it was the Re-
spondent, the ILA, or both, who were responsible for the failure
to follow through with discussions about end loader training.
3. Forklift: The forklift is the type of mobile equipment that
is most often used by the unit employees and the one that is the
easiest to become qualified to operate. The Respondent pro-
vides employees with third-party safety and certification train-
ing for the forklift. An employee’s forklift certification is valid
for 3 years. Leach stated that the Respondent provides the ini-
tial training when there are enough employees that are ready for

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

10 Sec. 10(b) of the Act states that, “no complaint shall issue based
on an unfair labor practice occurring more than six months prior to the
filing of the charges.”
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In reaching the determination that the Respondent did not es-
tablish a 10(b) defense regarding the change in crane training, I
also considered the evidence that in the period leading up to
early June 2013—just outside the 10(b) period—the Respond-
ent discussed with Brown that it wished to send ILA members
to formal training for NCCCO certification. However, the rec-
ord does not show that the Respondent gave the ILA notice
during those discussions that it would no longer allow informal
crane training. Indeed, the Respondent’s statements during
those discussions led Brown to understand that the parties were
going to work out how to schedule informal crane training prior
to the formal training. Brown memorialized this understanding
in his June 14 letter to Blakely. I find that the earliest that the
ILA can conceivably be said to have been on notice that the
company was eliminating informal crane training either com-
pletely or for noncertified trainees was when it became clear
that the Respondent was refusing Brown’s continuing efforts to
schedule informal crane training following Leach’s assertion to
Brown that such training would “taint” trainees. The “taint”
assertion was not made until late June, and it was several days
later that Brown sent Leach an email in which he attempted to
continue the conversation regarding informal training. It would
not have been until some days or weeks after that email that
Brown and the ILA could arguably have been expected to un-
derstand the Respondent’s silence as meaning that the informal
crane training would no longer be allowed.
Moreover, even once the Respondent repeatedly ignored
Brown’s attempts in 2013 to continue discussing informal train-
ing on the Liebherr cranes, the ILA was not, in my view, on
notice that informal training was being eliminated for all
cranes, since the Respondent has not shown that it notified the
ILA that the NCCCO certification requirement applied to the
Lucas cranes or that those cranes would be taken out of service
in early 2014. Therefore, the Respondent has not shown that
prior to June 23, 2013, the ILA was given notice that informal
training for its cranes was being eliminated completely or for
unit employees without NCCCO certification. For these rea-
sons I find that the Respondent’s Section 10(b) defense fails
with respect to the allegation that the Respondent ceased
providing informal crane training.
Turning to the merits of the crane training allegation, I find
that the Respondent violated Section 8(a)(5) and (1) when it
unilaterally eliminated informal crane training for unit employ-
ees either entirely or for those who were not NCCCO certified.
I note that such training was the established method by which
persons without prior crane experience became proficient in
crane operation before June 23, 2013. Brown, Fussell, and
Newcomer all testified that they initially became qualified
crane operators by way of the informal training. Moreover, this
practice was expressly required by the collective bargaining
agreement, which states that when conditions of “seniority” and
“work availability” warrant it, “a crane operator trainee will be
placed in the crane along with the crane operator for purposes
of training.” (Emphasis Added.) The evidence here shows that,
as of the middle of 2013, the Respondent and the ILA were in
agreement that conditions warranted training additional ILA
unit employees as crane operators and that there were three unit
members who were in a position to begin crane training. Thus
pursuant to past practice under the collective-bargaining
agreement, the Respondent was required to place each crane
operator trainee “in the crane along with the crane operator for
purposes of training.” The Respondent ceased and refused to
do this and therefore made a change to employee training—a
mandatory subject of bargaining. The Respondent never pre-
sented this change to the ILA as one that could be bargained
over and, to the contrary, dodged Brown’s efforts to continue
discussing the matter. For these reasons, I find that the Re-
spondent violated Section 8(a)(5) and (1) by ceasing informal
crane training for unit employees after June 23, 2013.
As regards formal crane training, I find that the General
Counsel has not shown an unlawful unilateral change. It is the
General Counsel’s burden to show the existence of an estab-
lished practice that an employer cannot change without provid-
ing the employees’ representative with notice and an opportuni-
ty to bargain. National Steel & Shipbuilding, 348 NLRB 320,
323 (2006), enfd. 256 Fed. Appx. 360 (D.C. Cir. 2007). In this
case, the only evidence of formal crane training concerns train-
ing provided beginning in 2010 to a single group of unit em-
ployees. Moreover, that group was unique in that it was com-
prised of individuals who had been grandfathered in as crane
operators because they were qualified by the Respondent before
the introduction of the Liebherr cranes and the related NCCCO
certification requirement. The General Counsel did not show
that, prior to June 23, 2013, unit employees who were not al-
ready crane operators had ever been provided with formal crane
training. To the contrary, the first time the record shows that
the Respondent and the ILA discussed the possibility of send-
ing unit members without prior crane experience to formal
crane training was in 2013. Moreover the record, far from
showing that the Respondent was not offering formal crane
training to inexperienced unit members, gives every reason to
believe that the Respondent would have provided unit employ-
ees with such training if the ILA had agreed to it.
With respect to the training on the end loaders and forklifts,
the General Counsel has not shown that the Respondent deviat-
ed from an established past practice. The evidence only shows
one instance, in 2008, when the Respondent provided formal
end loader training. Subsequent to that time, informal end
loader training occurred, but the record does demonstrate an
established past practice by which that informal training was
initiated and organized or show that the Respondent deviated
from any such past practice. Indeed, Leach testified that he has
continued to offer informal end loader training. I considered
the provision in the collective-bargaining agreement which
states that employees can provide 48-hour notice to the Re-
spondent that they wish to engage in off hours training on
equipment. However, the General Counsel has not shown a
deviation from that training process because the record does not
demonstrate that employees provided notice regarding off-
hours end loader training and that the Respondent refused them
the opportunity.
Similarly, the evidence shows that unit employees have in-
termittently received training on the forklifts both informally
and formally. The General Counsel has not, however, shown
that employees or the ILA gave 48-hour notice that they wished
to engage in off-hours forklift training or that the Respondent
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 17
failed to provide formal forklift training at specific junctures
that would have been warranted by some past practice. There
was testimony that the last two formal forklift trainings oc-
curred about 3 years apart, and that one occurred in 2012. Even
if I assume that this showed a past practice of providing such
training every 3 years, and that there had been no training since
2012, it would not show a change since the 3-year period after
the 2012 training had not passed as of the time of the consoli-
dated complaint and was not shown to have passed at the time
of the hearing.
For the reasons discussed above, I find that the Respondent
violated Section 8(a)(5) and (1) by ceasing informal crane train-
ing for unit employees after June 23, 2013, without giving the
ILA notice and an opportunity to bargain over the change. To
the extent that the Complaint allegation regarding training con-
cerns formal crane training or training on end loaders and fork-
lifts, I find that the evidence fails to establish a violation of
Section 8(a)(5) and (1). Those elements of the allegation should
be dismissed.
E. Supervisors and Nonunit Employees Perform Unit Work
Facts and Analysis
The General Counsel alleges that the Respondent violated
Section 8(a)(5) and (1) since July 1, 2013, by allowing supervi-
sors and nonbargaining unit employees to perform bargaining
unit work. The collective-bargaining agreement between the
ILA and the Respondent provides that the Respondent may use
supervisors or other nonunit employees to perform bargaining
unit work when qualified ILA unit members are not available.
(Tr. 565, 1930–1931; J. Exh. 1, Sections 5.1 and 20.10.) The
collective-bargaining agreement also permits nonunit individu-
als to perform maintenance work on the cranes. (Jt. Exh. 1,
Section 20.13.) The testimony indicates that such crane
maintenance sometimes requires the maintenance worker to use
the crane’s controls, but not to do so for the purposes of per-
forming unit work such as moving cargo. In addition, Hen-
dricks credibly testified that he sometimes moves a crane be-
cause its location is impeding other work at the facility and that
this is not bargaining unit work.
The General Counsel points to evidence showing that the
Respondent has used supervisors and nonunit maintenance
employees to perform ILA unit work. However, the General
Counsel has not shown that in these instances the Respondent
exceeded its contractual authority, summarized above, to use
non-unit individuals to perform unit work in certain circum-
stances. In 2013, the Respondent had Hendricks (a supervisor),
Chad Moody (a supervisor), and Richardson (a nonunit mainte-
nance employee) operate cranes. In the cases of both Hen-
dricks and Moody, the testimony of Brown was that he raised
his concerns about this with the Respondent and the Respond-
ent explained that the nonunit employees were operating the
cranes because there were no qualified bargaining unit employ-
ees available to do so. Hendricks testified that when a nonunit
employee operated a crane to perform unit work it meant there
were no crane-certified, ILA represented, employee available to
do that work. Based on the state of the record regarding this
issue, I do not have a basis for finding that there were qualified
ILA unit members available to perform the crane work at the
times Hendricks and Moody operated the cranes.
With respect to Richardson, the record indicates that this
maintenance employee had an accident while operating a crane
in 2013. However, the record provides no specifics that would
allow me to find either that a qualified ILA employee was
available to operate the crane at the time, or that Richardson
was performing unit work rather than operating the crane con-
trols for purposes of performing crane maintenance as permit-
ted by the collective-bargaining agreement.
For the reasons discussed above, I find that the General
Counsel has failed to establish that the Respondent violated
Section 8(a)(5) and (1) by allowing supervisors and other non-
unit employees to perform unit work. That allegation should be
dismissed.
F. Step One Grievance Procedure
Facts
The Complaint alleges that, since about July 1, 2013, the Re-
spondent violated Section 8(a)(5) and (1), and Section 8(a)(3)
and (1) by unilaterally changing its grievance procedure. The
General Counsel’s brief clarifies that what is being alleged is
that the Respondent unilaterally limited the company officials
to whom unit employees could present step one grievances.
According to the General Counsel, prior to July 1, 2013, the
Respondent allowed unit employees to present their step one
grievances to any available supervisor or foreman, but that after
that time the Respondent only permitted them to present their
step one grievances to Leach.
The collective-bargaining agreement creates a four-step
grievance process, step one of which requires the employee to
discuss the grievance with “his foreman” within 3 days of the
alleged violation or knowledge of the alleged violation.11 The
collective-bargaining agreement does not define “foreman” and
the evidence, including personnel records and testimony, does
not show that “foreman” was a part of the Respondent’s general
system of job titles and classifications. However, the collec-
tive-bargaining agreement requires the Respondent to provide
the ILA with a “roster of supervisors” and the Respondent has,
in the rosters submitted annually since at least August 9, 2012,
stated that all “contractual discussions with a foreman must be
with Mr. Leach.” Respondent’s Exhibit (R. Exh.) 76 (emphasis
in original).
Leach testified that since he came to the Respondent he has
been the only official who handles step one grievance discus-
sions on behalf of the Respondent. The record shows that
Leach was, in fact, the Respondent’s representative for step one
discussions during the period both immediately before and

11 The collective-bargaining agreement section on step one griev-
ances states as follows:
When a grievance arises, the employees will continue to work and
such grievance shall be processed in the following manner.
STEP ONE: An employee who believes he has a grievance shall
discuss the grievance with his foreman within three (3) calendar days of
its occurrence or knowledge of its occurrence. The employee shall
have the dock steward present at the time the grievance is discussed
with the foreman. In the even the matter cannot be satisfactorily ad-
justed within forty-eight (48) hours after the discussion with the fore-
man, it goes to [STEP TWO.]
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
immediately after the alleged July 1 change. The parties stipu-
lated that Leach was the Respondent’s representative at least 18
times between August 2012 and January 9, 2014, and by my
count all but four of those instances occurred before the July 1
date of the alleged change requiring that such discussions be
with Leach. The record definitively identifies just one instance
when someone other than Leach represented the Respondent
during a step one grievance discussion. In that instance, which
occurred in October 2011, the Respondent’s representative was
Christopher Blessing, a supervisor. That instance occurred well
before the Respondent provided the ILA with the August 9,
2012, roster of supervisors that named Leach as the “foreman,”
and more than 20 months before the alleged change regarding
step one grievance procedures.
Two of the General Counsel’s witnesses asserted that they
held step one grievance discussions with Hendricks, but Hen-
dricks denied that he ever conducted such discussions and I
found his denial credible. Hendricks acknowledged that ILA
members sometimes approached him about a grievance, but I
credit Hendricks’ testimony that, rather than engage in step one
discussions at that point, he would simply acknowledge the
individual’s request for such a discussion and communicate that
request to Leach. One of the two witnesses who claimed to
have conducted step one meetings with Hendricks was Mark
Lockett—an ILA steward at the facility from about August
2012 to January 2013. However, Lockett did not identify a
single specific instance when he had actual step one discussions
with Hendricks. To the extent that he provided any details,
those details arguably support Hendricks’ account. Specifical-
ly, Lockett stated that he would bring step one matters to Hen-
dricks and that Hendricks would respond “duly noted” and
drive away. Lockett may have been interpreted such an ex-
change as a step one grievance discussion, but it is, in fact,
more supportive of Hendricks’ testimony that while he could
not conduct step one discussions he would acknowledge the
receipt of employee requests for such discussions and com-
municate them to Leach. None of the step one meeting minutes
submitted at the hearing identified Hendricks as the Respond-
ent’s representative, although there were notes of 18 such meet-
ings that identified Leach as serving in that capacity.
Rizo was another witness for the General Counsel on this
subject. Rizo was an ILA steward for approximately 3 ½ years
ending in 2012 or 2013. He testified that he would have step
one grievances discussions with whoever “was in charge” at the
time. However, he also testified that if Leach “was available”
that is who he would contact about the step one grievance. His
assertion that he also had step one grievance discussions with
persons other than Leach was undercut to some extent by his
affidavit, in which he stated: “Before a written grievance is
filed, I call Terry Leach to discuss it with him. I usually can’t
get a hold of him, so I leave a message.”
As one would expect, there are times when unit members
wish to initiate the grievance procedure but Leach is not imme-
diately available at the facility for a step one discussion. How-
ever, the Respondent has never barred a step one grievance
because the deadline for raising it passed while Leach was una-
vailable.
Analysis
The General Counsel correctly states that an employer vio-
lates Section 8(a)(5) and (1) of the Act by unilaterally changing
grievance procedures. Public Service Company of New Mexi-
co, 360 NLRB 573 (2014); Bethlehem Steel Company, 136
NLRB 1500, 1502 (1962), affd. in relevant part 320 F.2d 615
(3d Cir. 1963), cert. denied 375 U.S. 984 (1964). Under the
facts present here, however, I find that the Respondent did not
make a change in grievance procedures, but rather exercised its
right to choose its representative for purposes of step one griev-
ance discussions. As the Board stated in Fitzsimons Mfg. Co.,
“It is well established that each party to a collective-bargaining
agreement has the right to select its representative for bargain-
ing and negotiations and the duty to deal with the chosen repre-
sentative of the other party.” 251 NLRB 375, 379 (1980), enfd.
sub nom. Auto Workers v. NLRB, 670 F.2d 663 (6th Cir. 1982).
A party’s right to select its own representative encompasses the
right to select its representative for grievance meetings. Pan
American Grain Co., Inc., 343 NLRB 205, 206 and 211
(2004),12 Long Island Jewish Medical Center, 296 NLRB 51,
71 (1989). Under the facts present here, I find that the Re-
spondent was not establishing or changing grievance proce-
dures, but simply exercising its right to choose its own repre-
sentative.
The result might be different if the Respondent’s designation
of Leach as its representative for purposes of step one griev-
ance discussions was contrary to limits established by the col-
lective-bargaining agreement, or by an established past prac-
tice, or was being used by the Respondent to avoid processing
grievances. However, none of that is the case here. The collec-
tive-bargaining agreement provides that step one discussions
are to be attended by “the foreman” and the ILA “dock stew-
ard.” “Foreman” is not defined by the collective-bargaining
agreement and was not shown to be part of the Respondent’s
established system of titles or classifications of employees.
The General Counsel and the Charging Party did not point to
any company documentation giving anyone other than Leach
the title of foreman, nor did they show that anything about
Leach’s duties was incompatible with the Respondent’s desig-
nation of him as its sole foreman. As noted above, there was no
evidence that any employee’s grievance had been time-barred
as a result of Leach’s unavailability. Under such circumstanc-
es, the ILA has no more right to dictate who the Respondent
selects as its foreman for step one grievance discussions than
the Respondent has to dictate who the ILA selects as its dock
steward for such discussions.
The record also fails to show that designating Leach as the
foreman for purposes of step one grievance discussions was a
change from an established prior practice. The record identifies
the participants in a number of step one discussions both before
and after the alleged change. Leach was the Respondent’s rep-
resentative in eighteen of those instances, which was almost all

12 In Pan American Grain Co., the Board applied Fitzsimons and
stated that a party had the right to choose its own representative for,
inter alia, grievance meetings, but applied an exception to that rule
because the union’s chosen representative was implicated in death
threats against the company’s president.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 19
of them. There was one incident, 20 months prior to the al-
leged unilateral change, in which Blessing was shown to have
served as the Respondent’s representative at a step one griev-
ance discussion. That aberration, the surrounding circumstanc-
es of which were not explored at the hearing, does not establish
a past practice under which the ILA gets to decide which com-
pany official will serve as the Respondent’s representative.13
The Complaint alleges that the purported change in griev-
ance procedures not only violated Section 8(a)(5) and (1), but
also violated Section 8(a)(3) and (1) because it was inherently
destructive of Section 7 rights. Since I find that the General
Counsel failed to show that the Respondent made a change in
grievance procedures, this allegation fails as well.
For the reasons discussed above, the evidence fails to show
that the Respondent violated Section 8(a)(5) and (1) or Section
8(a)(3) and (1) by unilaterally changing its grievance proce-
dure. Those allegations must be dismissed.
G. Alleged Threat and Pay Dispute Related to Hubbard’s
Work Injury
Facts
Hubbard, an individual charging party and ILA unit employ-
ee, sustained a workplace injury on August 11, 2013. The
Complaint alleges that the Respondent should have paid Hub-
bard for the portion of his shift that he was unable to work be-
cause of this injury, but that the Respondent refused to do so in
violation of Section 8(a)(5) and (1), Section 8(a)(4) and (1), and
Section 8(a)(3) and (1) of the Act. The Complaint further al-
leges that on August 12, 2013, Blakely threatened a unit em-
ployee (Hubbard) in violation of Section 8(a)(1) by stating that,
because of the unfair labor practices charges filed by the em-
ployee and the ILA, Blakely was too busy to provide infor-
mation to the employee.
Hubbard has been a vice-president of the ILA local and a
steward since approximately the middle of 2012 and an em-
ployee at the facility since April 2006. As steward he is re-
sponsible for policing the collective-bargaining agreement and
investigating calls from ILA unit members about potential con-
tract violations at the facility. Hubbard was actively involved
with the ILA efforts, discussed above, to resist the Respond-
ent’s unlawful changes to aluminum handling practices. On
June 1, 2013, Hubbard challenged the Respondent’s actions in
this regard and disputed Leach’s assertion that the change was
authorized by a prior Board decision. This activity led to a
brief work stoppage by Hubbard and the other ILA unit mem-
bers present. On August 5, 2013, Hubbard again challenged
Leach about the unlawful change and, once again, a work stop-
page by Hubbard and the ILA members ensued. The record
also shows that on June 27, 2013, Hubbard filed an unfair labor
practices charge against the Respondent and that this charge led
to an investigation.
Hubbard’s work-related injury occurred during a shift that
began at 6 pm on August 10, 2013, and continued overnight

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

14 Work rule 3, which is an attachment to the collective bargaining
agreement, provides in relevant part:
All accidents involving personal injury must be reported to the Su-
pervisor immediately by the employee(s) causing or involved in the
accident. An accident/injury report shall be prepared by the employ-
ee(s) ASAP or at least prior to leaving the shift that day.
Jt. Exh. 1.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hospitals that were located near the Respondent’s facility.15 At
the hospital, the staff took x-rays of Hubbard’s legs and told
him to follow up with his own physician. After he left the hos-
pital, Hubbard’s back began to hurt, and he also discovered a
finger injury for which he ultimately underwent surgery.
Hubbard contacted his physician’s office on the morning of
August 12 to arrange an appointment and that office encour-
aged him to obtain a workers’ compensation claim number.
Hubbard called Justen (human resource director) to request a
workers’ compensation claim number. Justen told him that she
was “working on trying to get” a workers’ compensation num-
ber for him and that he should call again in an hour. Hubbard
then called Blakely about the matter by phone. As is discussed
below, what Blakely said during that conversation is in dispute.
It is not in dispute, however, that on August 12 Blakely and
Justen were already gathering information and making submis-
sions to move forward with Hubbard’s workers’ compensation
claim. At 1:44 p.m. that day—approximately 4 or 5 hours after
Hubbard called—Blakely forwarded a draft of the required
report regarding Hubbard’s injury to Justen. By 4:29 p.m.,
Justen informed Hubbard by email that the incident had been
entered with the workers’ compensation agency and that the
Respondent was awaiting a claim number. Justen provided the
workers compensation number to Hubbard by email the next
day, August 13, at 8:33 a.m.
Regarding the factual dispute over the conversation that took
place when Hubbard called Blakely at approximately 9 or 10
am on August 12, the evidence was as follows. In Hubbard’s
account, after Justen told him that the Respondent was already
working on obtaining a workers’ compensation number for
him, he called Blakely and stated that he needed a workers’
compensation number so that he could see a physician. Ac-
cording to Hubbard, Blakely responded that he had not had a
chance to work on the incident report yet, and explained:
“Well, Prentis [Hubbard], you know all these charges and stuff
that—you done filed grievances and charges. You done filed, I
guess . . . with the NLRB against us. I just been too busy work-
ing on those.” Blakely contradicted Hubbard’s account and
specifically denied stating that he was too busy handling charg-
es and grievances to work on Hubbard’s workers’ compensa-
tion matter. Blakely testified that he was actually working on
the report about Hubbard’s injury at the time of the call and that
he told Hubbard that he was aware of the incident and had noti-
fied Justen.

15 The Respondent’s brief makes a point of noting that the hospital
that Hubbard went to did not administer a drug test, something that
either of the hospitals near the dock would have done. To the extent
that counsel is suggesting that Hubbard intentionally avoided the hospi-
tals near the dock in order evade a drug test, I find that such a sugges-
tion is not only irrelevant, but also unsupported by the record. The
Respondent presented no testimony whatsoever that Hubbard was
impaired at the time of the accident, or that the Respondent had ever
found him to be, or even suspected him of being, impaired by drugs or
other substances while at work. Hubbard’s choice of hospitals is fully
explained by his credible testimony that, when he was leaving the dock,
Hendricks discouraged him from going to a hospital, and that he only
decided to go once Brown advised him of the importance of having a
medical examination.
After considering the evidence regarding the August 12 con-
versation and the demeanor of the witnesses, I credit Hubbard’s
account over Blakely’s. Hubbard was a cooperative witness
and on both direct and cross examination he answered ques-
tions forthrightly and without biased embellishment. I found
him a particularly credible witness. There was no testimony or
other evidence that suggested to me that he was the type of
individual who would invent a story whole cloth, as the Re-
spondent would have me believe he did regarding Blakely’s
alleged threat, and his demeanor on the stand was not consistent
with such dishonesty. I am not persuaded by the Respondent’s
argument that I should not credit Hubbard because he did not
mention the threat in his steward’s notes for August 13. Those
notes do not contain any mention at all of the call between
Hubbard and Blakely, even though both Hubbard and Blakely
testified that the call took place. This leads me to believe that
the threat was not mentioned in the notes for no other reason
than that the call was not the subject of the entry.
Blakely, based on his demeanor, generally appeared to be an
honest witness. However, he was also a witness who demon-
strated a tendency, consistent with his alleged statements to
Hubbard, to bristle at the demands of dealing with ILA-related
controversy. One such instance concerned his testimony about
his compliance with the General Counsel’s subpoena duces
tecum. During that testimony it became apparent that, although
the Respondent’s counsel had represented that Blakely had
fully complied, the truth was that Blakely had taken it upon
himself to respond only to the subpoena items he thought he
could reasonably address given time constraints and his other
work. (Tr. 473 ff.) In response to the revelation regarding the
deficiency of his response, Blakely’s demeanor was more irri-
tated than contrite as he recounted the other work he had to
attend to and complained about the hours he had been forced to
spend responding to as much of the subpoena as he had an-
swered. In another instance, Blakely testified that he had left in
the middle of a training meeting with ILA representatives be-
cause he felt that they were wasting his time. (Tr. 1595.) Hub-
bard’s very credible testimony that, on August 12, Blakely had
responded to his injury-related inquiry by stating that he had
too much else to do given the demands placed on him by ILA-
related controversies is lent further credence by these aspects of
Blakely’s testimony and demeanor.
The collective-bargaining agreement provides in part: “An
employee who is injured on the job shall be paid for the hours
he would have worked on that day had he not been injured.”
(Jt. Exh. 1, Sec. 22.5.) Hubbard and Brown testified that when
a unit employee was injured at work and left to go to the hospi-
tal they were paid for the hours they would have continued
working if not for the injury. The Respondent did not present
any evidence showing that the practice was something other
than what is indicated by the collective-bargaining agreement
and testified to by Hubbard and Brown. Nevertheless, although
the crew that Hubbard began work with on the day of his injury
continued to work and were paid for almost 24 hours, the Re-
spondent only paid Hubbard for the 12 hours prior to when he
left the facility after suffering an injury. Blakely, as the Re-
spondent’s human resources manager, had responsibility for
submitting the company’s payroll information.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 21
Analysis
1. Alleged Threat: Section 8(a)(1) of the Act makes it an un-
fair labor practice for an employer “to interfere with, restrain,
or coerce employees in the exercise of” their rights to engage in
protected union and concerted activity. In deciding whether an
employer has made a threat in violation of this prohibition, the
Board applies the objective standard of whether the remark
would reasonably tend to interfere with the free exercise of
employee rights, and does not look at the motivation behind the
remark, or rely on the success or failure of such coercion. Divi
Carina Bay Resort, 356 NLRB 316, 320 (2010), enfd. 451 Fed.
Appx. 143 (3d Cir. 2011); Joy Recovery Technology Corp., 320
NLRB 356, 365 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998);
Miami Systems Corp., 320 NLRB 71, 71 fn. 4 (1995), affd. in
relevant part 111 F.3d 1284 (6th Cir. 1997). When applying this
standard, the Board considers the totality of the relevant cir-
cumstances. Mediplex of Danbury, 314 NLRB 470, 471
(1994).
The General Counsel alleges that Blakely made an unlawful
threat on August 12, 2013, when he told Hubbard that he had
not been able to work on Hubbard’s worker’s compensation
claim because he was too busy handling grievances and unfair
labor practice charges filed by Hubbard. The Respondent does
not defend this allegation by claiming that such a statement was
not unlawful under the circumstances present here, but rather
argues that the statement was not made. As discussed above,
after considering the record, I credit Hubbard’s testimony that
Blakely made the alleged threat.
In light of the totality of the relevant circumstances present
here, I conclude that Blakely’s remark was unlawfully coercive.
He suggested that, because Hubbard had engaged in union ac-
tivity and participated in the Board’s processes, the Respondent
was delaying Hubbard’s unrelated workers’ compensation
claim. In reaching my determination on this issue, I considered
circumstances that weigh against finding that an employee
would reasonably be coerced by Blakely’s remark. In particu-
lar, I considered that at the time of Hubbard’s and Blakely’s
conversation, Justen had already told Hubbard that work had
begun on his claim, that within just a few hours thereafter the
Respondent informed Hubbard that it had submitted his work-
er’s compensation paperwork, and that by early the next day,
the Respondent provided Hubbard with the claim number he
was seeking. The General Counsel did not show that this fa-
cially swift processing represented a delay that Hubbard would
reasonably attribute to his protected activity. That being said, I
am persuaded to find unlawful coercion because Blakely went
beyond simply stating that there would be some delay in the
Respondent’s completion of the workers’ compensation paper-
work, and specifically told Hubbard that the delay was the re-
sult of Hubbard’s protected activity. Moreover, Blakely him-
self testified that he was not, in fact, busy with ILA grievances
or charges at the time, meaning that any delay he threatened
based on union activities would be a product of his own voli-
tion rather than circumstances beyond his control. Even if, as it
appears, the Respondent did not actually delay the processing
of Hubbard’s worker’s compensation paperwork, Blakely’s
statement was a warning shot that put Hubbard on notice that
union activity and participation in the Board’s processes could
cause the Respondent to delay action on unrelated matters im-
portant to Hubbard.
For the reasons discussed above, I conclude that, on August
12, 2013, Blakely unlawfully threatened Hubbard in violation
of Section 8(a)(1) by telling him that he was too busy with
Hubbard’s union charges and grievances to work on the paper-
work relating to Hubbard’s workers’ compensation claim.
2. Denial of Pay: The General Counsel claims that the Re-
spondent’s action in denying Hubbard pay for the hours he
would have worked on August 11, 2015, if he had not left due
to a work-related injury was discriminatory in violation of Sec-
tion 8(a)(3) and (1) and Section 8(a)(4) and (1), and was also a
unilateral change in violation of Section 8(a)(5) and (1).
Turning to the discrimination claims first, under the Board’s
Wright Line decision, in cases alleging a violation of Section
8(a)(3) and (1), where motivation is at issue, the General Coun-
sel bears the initial burden of showing that the Respondent’s
decision to take adverse action against an employee was moti-
vated, at least in part, by antiunion considerations. 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. (1982), approved in NLRB v. Transportation Corp.,
462 U.S. 393 (1983). The General Counsel may meet this bur-
den by showing that: (1) the employee engaged in union or
other protected activity, (2) the employer knew of such activity,
and (3) the employer harbored animosity towards the Union or
other protected activity. Camaco Lorain Mfg. Plant, 356 NLRB
1182, 1184–1185 (2011); ADB Utility Contractors, 353 NLRB
166, 166–167 (2008), enf. denied on other grounds, 383 Fed.
Appx. 594 (8th Cir. 2010); Intermet Stevensville, 350 NLRB
1270, 1274–1275 (2007); Senior Citizens Coordinating Coun-
cil, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329
NLRB 355, 356 (1999). Animus may be inferred from the rec-
ord as a whole, including timing and disparate treatment.
Brink’s, Inc., 360 NLRB 1206, 1206 at fn. 3 (2014); Camaco
Lorain Mfg. Plant, supra. If the General Counsel establishes
discriminatory motive, the burden shifts to the employer to
demonstrate that it would have taken the same action absent the
protected conduct. Camaco Lorrain, supra; ADB Utility, supra;
Intermet Stevensville, supra; Senior Citizens, supra. The Board
also applies this Wright Line analysis to allegations that an
employer violated Section 8(a)(4) and (1) by discriminating
against “an employee because he has filed charges or given
testimony” in a Board proceeding. Verizon, 350 NLRB 542,
546–547 (2007); American Gardens Mgmt. Co., 338 NLRB
644, 644–645 (2002); Gary Enterprises, Inc., 300 NLRB 1111,
1113 (1990), enfd. mem. 958 F.2d 368 (4th Cir. 1992).
The General Counsel has met its initial burden of showing
discrimination under both Section 8(a)(3) and (1) and 8(a)(4)
and (1) of the Act. The first element under Section 8(a)(3) is
established by the evidence that Hubbard was very active in
union matters at the facility—serving as vice-president of the
ILA local and as dock steward, and personally challenging
management over unilateral changes to the way aluminum was
handled at the facility. With respect to Section 8(a)(4), the evi-
dence showed that Hubbard had recently invoked the Board’s
processes by filing an unfair labor practices charge against the
Respondent. These are all activities about which the Respond-
ent had knowledge. The General Counsel has made the re-
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quired showing of animus in that, as found above, on August
12, just the day after the injury that gives rise to the pay contro-
versy, Blakely unlawfully threatened Hubbard because he had
engaged in union activity and availed himself of the Board’s
processes.
Since the General Counsel has made the required initial
showings under Wright Line, the burden shifts to the Respond-
ent to show that it would have denied Hubbard pay for the
hours after he left work because of a work-related injury even
absent Hubbard’s protected activity. The Respondent has not
met that responsive burden. Neither Blakely, nor any other
official involved with denying Hubbard the disputed pay, testi-
fied to a lawful reason that, in fact, caused the Respondent to
take that action. The nondiscriminatory reason forwarded in
the Respondent’s brief—that Hubbard was not paid for the
disputed hours because his work-related injury was not the real
reason he left work—appears to be the invention of counsel.
Given the lack of any credible testimony or documentary evi-
dence that the nondiscriminatory reason forwarded by counsel
was the actual reason for the denial of pay, the Respondent has
failed to meet its rebuttal burden. See Bruce Packing Co., 357
NLRB 1084, 1086–1087 (2011), enfd. in relevant part 795 F.3d
18 (D.C. Cir. 2015) (employer cannot meet its burden merely
by showing that it had a legitimate reason for its action; rather,
it must demonstrate that it would have taken the same action in
the absence of the protected conduct); ADB Utility Contractors,
supra (an employer fails to meet its burden of showing that it
would have taken the same action absent the discrimination,
when the evidence establishes that the reason forwarded was
not in fact relied upon); Monroe Manufacturing, Inc., 323
NLRB 24, 27 (1997) (an employer does not meet its responsive
Wright Line burden by showing the existence of a valid reason
that could justify the challenged action, but rather must show
that such valid reason would have resulted in the same action
even in the absence of the employee’s protected activities);
Structural Composites, 304 NLRB 729, 729–730 (1991) (not
enough for employer to show that it could have taken the action
it did for the reasons given, rather it must show that it would
have taken the action for the reasons given). Not only did none
of the Respondent’s witnesses testify that the nondiscriminatory
reason asserted in the brief submitted by counsel was actually
relied on in denying Hubbard pay, but none of them even ex-
pressed agreement with counsel’s related insinuations that
Hubbard was faking his injury.
I find that the Respondent discriminated against Hubbard in
violation of Section 8(a)(3) and (1) and Section 8(a)(4) and (1),
when it denied him pay for the hours he would have worked on
August 11, 2013, if he had not left work due to a work-related
injury.
The Respondent’s denial of pay to Hubbard also violated
Section 8(a)(5) and (1) because that denial contravened past
practice and the collective-bargaining agreement. The record
shows that the Respondent pays ILA-represented employees
who are injured on the job for the hours they would have
worked on that day if not for the injury. The credible evidence
showed that Hubbard would have continued working for an
additional 11 to 12 hours on August 11, if he had not been in-
jured, but that the Respondent denied him the pay for those
hours even though he was entitled to it under established prac-
tice and the collective bargaining agreement.
The Respondent violated Section 8(a)(5) and (1) when it de-
nied Hubbard pay that he was entitled to under past practice
and the collective-bargaining agreement for the hours he would
have worked on August 11, 2013, if not for the injury.
H. Discipline and Refusal to Hire Victorian and Woodley
Facts
Fred Victorian Jr. and Rodney Woodley appeared for an as-
signment on September 17, 2013, without the required safety
glasses and the Respondent refused to hire them. Then the
Respondent issued a written notice to each employee stating
that he was receiving a verbal warning for appearing without
the safety glasses. The General Counsel alleges that the Re-
spondent took these actions because of Victorian’s and Wood-
ley’s union and/or protected concerted activities in violation of
Section 8(a)(3) and (1) of the Act.
The record shows that the Respondent had a legitimate con-
cern with injuries to employees’ eyes and had notified employ-
ees of the importance of wearing safety glasses prior to the
alleged discrimination against Victorian and Woodley in 2013.
The annual injury report that the Respondent is required to
submit to the Occupational Safety and Health Administration
(OSHA), and which the Respondent filed on January 14, 2013,
shows that were three reportable injuries in 2012, and that eve-
ry one of those was an eye injury involving a foreign body
entering the eye. During the pre-season training that the Re-
spondent conducted for employees and supervisors on March
15, 2013—and which was attended by both Victorian and
Woodley—the Respondent discussed this record of eye injuries
and the necessity of avoiding them by wearing the required
safety glasses. Since at least November 18, 2010, the Respond-
ent’s safety handbook has required employees “to wear eye
protection in operational areas where the potential for eye inju-
ry exists,” and stated that failure to abide by this and other safe-
ty equipment requirements, “will result in disciplinary action.”
J. Exh. 3, Page 61 (Personal Protective Equipment #1800).
Brown, Lockett, Rizo, Woodley—all witnesses for the General
Counsel—testified that there were past instances in which em-
ployees did not have necessary safety glasses, but were permit-
ted to obtain them from a manager, supervisor, or a coworker,
without being denied work or subjected to discipline. Howev-
er, these witnesses did not identify the specific circumstances
or dates of these occurrences—and in particular did not show
that any of these prior incidents took place after the OSHA
report filed in January 2013 or the training in March 15, 2013.
Victorian and Woodley were among the group of ILA unit
employees who participated in a work stoppage on June 1,
2013, to protest a unilateral change in the way the Respondent
was moving aluminum at the facility. On that occasion, the
discussion between Victorian and Leach became heated, and
both raised their voices. Leach told Victorian, “I’m about this
far off your ass,”16 and made a gesture holding his thumb and

16 Hubbard testified that Leach made this statement, and the thumb
and forefinger gesture, on June 1, and Leach denied it. I credit Hub-
bard, who, as discussed above, I found a particularly credible witness
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 23
forefinger about an inch apart. Victorian also filed a number of
grievances. One such grievance, filed on October 15, 2012,
complained of the Respondent’s failure to move Victorian from
the regular list to the skilled list. In another, filed on June 5,
2013, Victorian grieved more generally over the Respondent’s
failure to add employees to the skilled list. On August 13,
2013, Victorian filed an unfair labor practices charge alleging
that the Respondent had discriminatorily refused to place him
on the skilled list.
As noted above, the allegation regarding discrimination
against Victorian and Woodley arises over work on September
17, 2013. On that day, Victorian and Woodley both got calls
from an ILA dispatcher to come to the facility to shift the lines
that secured a vessel. They were given significantly less than
the usual amount of time to appear for this work, but the record
does not make clear whether the short notice was attributable to
the dispatcher, the Respondent, the unavoidable uncertainties of
the work, or some other factor. At any rate, Victorian and
Woodley hurried to the facility and, when they presented them-
selves at the location where the lines were to be moved, neither
had the required safety glasses on their person. It is not disput-
ed that safety glasses were required for the type of work they
had been told they would be performing. The two employees
had a discussion with Leach regarding this, and both Victorian
and Woodley indicated to Leach that they could get safety
glasses from the break room or a car—something that would
take about 5 minutes. Either at that time, or when they returned
a few minutes later with safety glasses, Leach told Victorian
and Woodley that it was “too late” and that their services would
not be needed that day. Both Victorian and Woodley left the
facility.17
On September 18, 2013, Leach issued discipline to Woodley
for violating the Respondent’s safety policy number 1800,
which includes the language requiring employees to have safety

and more credible on disputed matters than Leach. See, supra, footnote
3. However, I do not find a basis for crediting the statement, in Victo-
rian’s affidavit (GC Exh. 2), that Leach reprised the thumb and forefin-
ger gesture when he denied Victorian and Woodley an assignment 3 ½
months later on September 17. At the time of the hearing, Victorian
was deceased and, consistent with Board precedent, I admitted his
affidavit into evidence, but carefully scrutinized the affidavit and other
factors before deciding what weight to give to the assertions in it.
Weco Cleaning Specialists, Inc., 308 NLRB 310, 311 fn. 7 (1992);
Ann’s Laundry & Dry Cleaners, Inc., 276 NLRB 269, 270 fn. 3 (1985).
In the case of the September 17 incident, Leach testified that he had not
made the alleged gesture and the contrary claim in Victorian’s affidavit
was not corroborated by other testimony or documentary evidence. In
particular, Woodley, who was the General Counsel’s only live witness
regarding the September 17 encounter between Leach and Victorian,
did not testify that Leach made the thumb and forefinger gesture at that
time. Although I found Leach a less that fully credible witness, I do not
find a basis here for finding Victorian’s affidavit more reliable than
Leach’s denial on the question of whether Leach made the thumb and
forefinger gesture on September 17.
17 According to Leach, other employees had already begun shifting
the lines, but according to Woodley the line shifting work was not yet
underway when he arrived. I do not find a basis in the testimony, the
demeanor of the witnesses, or the record as a whole, for crediting one
witness over the other regarding the question of whether the lines were
already being shifted.
glasses. Although provided to Woodley in written form, that
document characterizes the discipline as a “verbal warning.”
The document states that any additional incidents regarding the
safety policy and the safety glasses “could result in further
disciplinary action up to and including suspension, and or ter-
mination.” Victorian also received a disciplinary warning
based on the incident. There was no evidence that the Re-
spondent had ever disciplined any other employees for present-
ing themselves for work without required safety glasses. By
the same token, the evidence does not establish that any em-
ployees had appeared for work without required safety glasses
after the submission of the injury report to OSHA in January
2013, or after the March 2013 meeting at which the Respondent
discussed that report and the importance of avoiding eye inju-
ries.
Analysis
I find that the General Counsel has met its initial Wright Line
burden with respect to discrimination against Victorian. The
evidence shows that Victorian was particularly active in union
matters, having filed multiple grievances in recent years and
then, just a month before the alleged discrimination, an unfair
labor practices charge regarding the Respondent’s refusal to
place him on the skilled list. In addition, as discussed above,
on June 1, 2013, Victorian not only took part in a work stop-
page to protest an unlawful change to the way the Respondent
was handling aluminum at the facility, but directly confronted
Leach about the violation. These were all activities of which
Leach—who made the decision to refuse work to Victorian and
to issue discipline—was aware. The record also shows that
Leach bore animus towards Victorian’s activities. When Victo-
rian complained to Leach about an unfair labor practice on June
1, Leach raised his voice towards Victorian and warned “I’m
about this far off your ass,” while making a gesture with his
thumb and index finger.
Since the General Counsel has made the required initial
showing, the burden shifts to the Respondent under Wright Line
to show that it would have refused to allow Victorian to work
on September 17, and issued discipline to him, even in the ab-
sence of the protected activity. I find that the Respondent has
provided sufficient evidence to meet its burden by showing that
Victorian presented himself for work that day in an area where
safety glasses were required, but that he did not have the safety
glasses with him. The evidence shows that employees’ failure
to wear safety glasses had become a subject of concern to the
Respondent. Every one of the injuries that the Respondent
reported to OSHA in the most recent annual report was an inju-
ry involving an eye and a foreign object. Not surprisingly,
during the most recent pre-season training prior to September
17, 2013, the Respondent discussed that report and emphasized
the necessity of employees wearing safety glasses while doing
work that required eye protection. The evidence did not show
that, since that meeting, any other employee had appeared for
work without the required safety glasses, but been treated more
leniently than Victorian. Indeed Woodley, who the General
Counsel concedes was not particularly involved in union activi-
ty, received exactly the same treatment as Victorian for exactly
the same safety violation. Under the circumstances present
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
here, I find that the Respondent has met its rebuttal burden by
showing that, more likely than not, Leach would have denied
Victorian work and issued the warning to him even if not for
his protected union activities.
The General Counsel states that Woodley had engaged in on-
ly “minimal union activity,” Brief of General Counsel at Page
19, and I agree. The activity that was shown—participating,
along with the other ILA unit members in a brief work stoppage
called by Brown and Hubbard—is insufficient standing alone
and under the circumstances present here to provide a basis for
believing he would be a target of the Respondent’s anti-union
animus. Unlike in Victorians’ case, there was no evidence that
Leach had expressed any animus towards Woodley or his activ-
ity, or that Woodley had directly challenged Leach or filed
grievances and unfair labor practices charges. The General
Counsel argues that I should find that it has met its initial
Wright Line burden with respect to Woodley on the theory that
he was an innocent bystander injured by the Respondent’s dis-
crimination against its true target, Victorian. Brief of the Gen-
eral Counsel at Page 19, citing Professional Eye Care, 289
NLRB 1376 (1988), Hunter Douglas Inc., 277 NLRB 1179
(1985), and Jack August Enterprises, Inc., 232 NLRB 881
(1977). This argument, however, depends on the assertion that
Leach’s actions with respect to Victorian over the safety glasses
issue were themselves discriminatory. For the reasons dis-
cussed above, I find that unlawful discrimination was not
shown with respect to Victorian, and therefore the General
Counsel’s argument that Woodley was an “innocent bystander”
injured by unlawful discrimination against Victorian fails.
For the reasons discussed above, the claims that Victorian
and Woodley were discriminated against in violation of Section
8(a)(3) and (1) when they were denied work on September 17,
2013, and subsequently issued disciplinary warnings, should be
dismissed.
I. ALLEGATIONS REGARDING TREATMENT OF RUSSELL
The General Counsel alleges that the Respondent: discrimi-
nated in violation of Section 8(a)(3) and (1), and also interfered
with the exercise of Section 7 rights in violation of Section
8(a)(1), since late October or early November 2013, by restrict-
ing Russell’s access to certain areas of the facility; discriminat-
ed in violation of Section 8(a)(3) and (1) by issuing a written
reprimand to Russell on about January 3, 2014; and violated
Section 8(a)(1) by threatening to terminate Russell on about
January 3, 2014. Russell began working at the facility in 2004.
While he was never a permanent steward, since November
2013 he has served as a fill-in steward at times when a perma-
nent steward was not present. Paul Floering and Sims also
served as fill-in stewards.
1. Steward’s Ability to Move Around the Facility to Police
the Contract: As is discussed more fully below, the record
shows instances when Russell was a fill-in steward and the
Respondent confronted him about being away from his as-
signed work area. An employee designated as the steward on a
shift has a work assignment, just like any other unit employee,
in addition to the responsibilities of steward. The collective-
bargaining agreement provides, however, that “the steward
shall be allowed a reasonable amount of time to investigate
alleged contract violations, process grievances and attend arbi-
tration hearings without loss of pay.” (Jt. Exh. 1, Sec. 22.3.) At
the same time, the collective-bargaining agreement includes
work rules that place restrictions on the unit employees’ free-
dom to interrupt their work. Those work rules state: (1) “Dur-
ing temporary work interruptions occurring during work peri-
ods, employees must remain in the vicinity of the job or, with
supervisory approval, at a designated area within the Termi-
nal.”; (2) “If an employee[ ] must leave the job area for relief
purposes, such employee shall notify supervisor and not be
absent from the job longer than 10 minutes, including travel
time.”; and (3) “Employees that leave work early or take unau-
thorized breaks will be docked time.” In addition, Section 20.6
of the collective-bargaining agreement provides that “The
Company reserves the right to deny future employment to any
employee who leaves his job unattended.” The collective-
bargaining agreement also states that in certain circumstances,
not shown to pertain here, the steward will be assigned as an
“extra man” in addition to “minimum gang positions.” See (Jt.
Exh. 1, Secs. 22.3(1.)(B.) and 22.3(2.)). There was no testimo-
ny that Russell was an “extra man” at the times when the Re-
spondent attempted to limit his movements. Nor was there
testimony explaining how, if at all, such an assignment affected
a steward’s flexibility to attend to union matters.
The credible evidence showed that stewards move around
the facility to police the contract, often in response to inquiries
from unit members about potential contract violations, and
usually by driving forklifts or other work equipment to area
where they are needed. The credible testimony of Rizo18 and
Hubbard—both long-term stewards—established that, depend-
ing on the type and location of the work activity that the stew-
ard was involved in at the time, the steward could sometimes
investigate a possible contract violation immediately and with-
out notifying the Respondent. In other cases, however, the
steward delayed the investigation until after he completed a
work task or notified the Respondent and/or obtained the Re-
spondent’s approval. If, for example, the steward was assigned
to operate a forklift and was not busy with any work when he
became aware of a potential contract violation, the steward
could immediately investigate the suspected contract violation,
without notifying the Respondent. (Tr. 127, 1951–1952.) If,
after arriving at the location of the potential violation, the stew-
ard concluded that there was a contract violation, he would
contact Leach or another “company man” to discuss the matter.
(Tr. 123–125.) However, if the steward was in the middle of a
particular task at the time he was alerted to the possibility of a
violation, the steward would complete that task before leaving
to investigate so as not to cause an undue delay by, for exam-
ple, “leav[ing] the truck or the railcar stuck there half loaded.”
(Tr. 126–128, 267–268.) In other circumstances, for example if
the steward was on-board a vessel or was assigned to work that
demanded “constant production,” the employee would have to
contact an official of the Respondent before leaving to investi-
gate the potential violation. (Tr. 1947–1952.) Rizo and Hub-

18 Rizo was a steward for approximately 3½ years ending in 2012,
and has also been an official with the ILA local. At the time he testi-
fied in this matter, Rizo was no longer an ILA steward or official.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 25
bard both used forklifts and other company equipment to move
around the facility to investigate possible contract violations,
and the Respondent never told them that they were prohibited
from doing so. (Tr. 105–106, 266–268.)
Russell testified, contrary to Rizo and Hubbard, that union
stewards had, in essence, an unfettered right to stop their work
activity without notifying the Respondent and go wherever they
wished at the facility. I found Rizo and Hubbard, both of
whom, like Russell, testified for the General Counsel, to be far
more reliable witnesses on this subject than Russell. Rizo and
Hubbard were long-time permanent stewards who I expect
would be better versed in the established practices for stewards
than was a fill-in steward like Russell. Moreover, unlike Rus-
sell, they did not have a direct interest in the outcome of the
allegations relating to Russell’s movements around the facility.
In addition, based on my consideration of his demeanor, testi-
mony and the record as whole, I found Russell a less reliable
witness than either Rizo or Hubbard.19 I also believe that Rus-
sell’s suggestion that stewards had an absolute right to leave
their work assignment and move around the facility was facial-
ly implausible given that stewards were assigned to regular
work duties that sometimes involved constant production.
2. The Respondent’s Actions Regarding Russell: Leach and
Hendricks testified that Russell had an unusual tendency to
disappear at the facility when he had work to perform. Alt-
hough they provided little in the way of specifics about this,
and the documentary evidence is thin,20 I found their testimony
credible. No disinterested witness denied that Russell was
particularly disposed to leave his work duties without notice. If
anything Russell’s testimony—which significantly exaggerated
the level of freedom that stewards have to leave their work
duties—lends support to Leach’s and Hendricks’ testimony on
this subject. Leach often found it necessary to search the facili-
ty to find Russell. When found, Russell would sometimes re-
sist Leach’s direction to return to work, stating that he did not
have to follow the direction because he was a union steward.

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

21 The collective-bargaining agreement provides: “For work from
6:00 AM to 10:00 PM, the Company shall provide 6 hour notice
through the telephone tape of its best estimate of its anticipated em-
ployment needs. For work from 10:00 PM to 6:00 AM, the Company
will provide 8 hours’ notice.” Jt. Exh. 1 at Sec. 5.3(C).
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although Hendricks had already told Russell that Clemons was
not needed for the shift and would not be hired, Russell told the
guard to summon Hendricks to the guard station. Hendricks
came to the guard station where he found both Russell and
Clemons present. Hendricks told Clemons that he had missed
the shape-up meeting and that the Respondent did not need him
at that time. In addition, Hendricks told Russell to “get where
you need to be” because there was work that needed to be done
at a barge. According to Clemons, Hendricks used a “high
tone” of voice when communicating this instruction to Russell.
Russell did not return to work at that time as directed by Hen-
dricks, but rather told Hendricks: “You guys ain’t going to talk
to me like a little kid. Fuck that.” Hendricks stated that Russell
had a job to do and needed to return to the barge, but Russell
persisted in refusing to comply. Then, Hendricks warned that
he would issue discipline to Russell if he did not return to work.
Russell still did not return to his work assignment. Hendricks
told Clemons that he was sorry Clemons had wasted his time
that day and explained that he had previously told Russell that
Clemons was not needed. Clemons left and then Russell pro-
ceeded back to his work on the barge.
The third incident cited by the General Counsel took place a
few days later on January 3, 2014. Hendricks told Russell that
a barge was expected at the facility and that he should give the
unit employees a “heads up.” A t some point Leach told Russell
that the Respondent was going to conduct a “shape-up” meeting
to hire for the shift. Russell took issue with this, stating that the
Respondent could not have a shape-up meeting because it had
not used the taped announcement to give employees the re-
quired notice. Leach responded: “You don’t need to tell me
how to do my job. I know how to do my job, you learn to do
yours.” Leach also used an expletive.22 Russell did not engage
Leach further on the subject.
As Russell was leaving work that day, Hendricks presented
him with a written disciplinary warning. The disciplinary no-
tice, dated January 3, 2014, stated that the reason for the action
was: “Failure to modify behavior after multiple warnings from
Mr. Terry Leach, Director of Operations, and Mr. Brad Hen-

22 I base this account on the testimony of Rizo, a witness for the
General Counsel, who was present for the exchange between Leach and
Russell. Russell gave a somewhat different account than Rizo, stating
that Leach made the more threatening statement, “Don’t be so disre-
spectful or you won’t be here that long.” I consider Rizo a more relia-
ble witness regarding this conversation than Russell. Not only does
Rizo have no direct interest in the outcome regarding this allegation,
but for the reasons discussed above, see supra footnote 19, I consider
Russell an unreliable witness. I note, moreover, that although counsel
for the General Counsel had Rizo testify on two occasions about what
Leach said on January 3, in neither instance did counsel succeed in
eliciting confirmation from Rizo of the threatening statement claimed
by Russell. For his part, Leach testified that he did not recall making
the statements recounted by Rizo, but he did not testify that he recalled
that he had not made those statements and he gave no account at all of
the January 3 exchange. Similarly, Hendricks testified that he never
heard Leach threaten Russell, but he was not specifically asked about
the particular statements reported by Rizo. Hendricks did not deny
that, on January 3, Leach and Russell had a conversation regarding the
timing of a shape-up meeting, nor did he provide his own account of
such a conversation.
dricks, Operations Manager. The specific behaviors are insub-
ordination, leaving the job, and failure to begin work promptly
and/or return to work promptly from meal period.” The Re-
spondent stated that it wanted Russell to: “a) notify a supervisor
when he needs to leave the job; b) begin work promptly at the
beginning of a shift and/or return to work promptly when re-
turning to work from a meal period; c) stop hanging up on su-
pervisors when they attempt to deliver critical job information.”
The Respondent also stated that “Russell needs to follow not
ignore supervisors’ work directives.” The notice warned that
unless Russell modified his behavior, he would “be subject to a
Disciplinary Layoff and/or Termination.” Although this write-
up states that it follows “multiple warnings” for misconduct,
there is no documentary evidence of prior warnings.23 The
disciplinary notice does not identify, by date or otherwise, the
specific incidents that it is based on. However, a cover letter,
signed by Hendricks and provided to Russell with the discipli-
nary notice, makes specific reference to one incident—the con-
frontation between Russell and Hendricks at the guard station
on December 29 arising out of the decision not to hire
Clemons. About that incident, the letter states: “[Y]our actions
on the morning of December 29, 2013 clearly demonstrate that
verbal reprimands have failed to make you understand the seri-
ousness of your actions and that these behaviors (insubordina-
tion, leaving the job, and failure to begin or return to work
promptly) must stop immediately.” Along with these docu-
ments, the Respondent provided several attachments, including
excerpts from the collective-bargaining agreement and a policy
statement. These materials were referenced in both the disci-
plinary notice and the cover letter.
Analysis
The General Counsel alleges that, on January 3, 2015, Leach
violated Section 8(a)(1) by making a threatening statement in
reaction to Russell asserting that the Respondent had to give
employees greater notice before a shape-up meeting could be
held. Section 8(a)(1) provides that an employer may not “inter-
fere with, restrain, or coerce employees” in the exercise of their
Section 7 rights.” The General Counsel contends that Leach’s
reaction constituted an implied threat of discharge. Brief of
General Counsel at Page 24, citing KSM Industries, Inc., 336
NLRB 133, 133 (2001) and Cooper Tire & Rubber Co., 308
NLRB 72 (1992). As stated above, I do not find that Leach
gave the response that the General Counsel alleges was a
threat—i.e., “Don’t be so disrespectful because you won’t be
here that long.” For the reasons discussed above, I find instead
that Leach responded by using an expletive and saying: “You
don’t need to tell me how to do my job. I know how to do my
job, you learn to do yours.” It is not clear whether the General
Counsel contends that this response violated the Act. At any
rate, I conclude that this response was not an unlawful threat. It
does not, on its face, threaten Russell with discharge or any
other adverse job action. Nor does it cross the line into in the
area of statements that would “reasonably be interpreted” by an
employee as a threat that Leach would take adverse action.

23 The write-up that cited Russell for sleeping on the job was not is-
sued until March 5, 2014, and therefore cannot be one of the prior
warnings that the January 3, 2014 disciplinary notice refers to.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 27
Smithers Tire, supra. Given the totality of the circumstances
present here, I find that Leach was referencing Russell’s job
knowledge in order to compare it to Leach’s own purportedly
superior knowledge and as a basis for rejecting Russell’s pro-
test about the shape-up meeting—not to suggest that Russell
would be disciplined for exercising his Section 7 rights.
For the reasons discuss above, I find that the allegation that
Leach unlawfully threatened Russell on January 3, 2014,
should be dismissed.
The complaint also alleges that, since about late October or
early November 2013, the Respondent restricted Russell’s ac-
cess to certain areas of the facility and that this action was dis-
criminatory in violation of Section 8(a)(3) and (1), and unlaw-
fully interfered with Russell’s Section 7 activity in violation of
Section 8(a)(1). The allegation that the Respondent was moti-
vated to do this by Russell’s union activity is analyzed pursuant
to the burden shifting approach under Wright Line, supra. The
General Counsel has satisfied the first two elements of the ini-
tial Wright Line showing. Since about November 2013, Rus-
sell had been filling-in as a union steward and the Respondent
was aware of this. The record does not show that Russell en-
gaged in other notable union activity, or that he engaged in any
such activities prior to beginning to fill-in as a steward in late
2013.
I find that the General Counsel has failed to show animus
that satisfies the third element of the prima facie case. The
General Counsel relies on alleged disparate treatment for this
purpose. However, what counsel for the General Counsel pre-
sents in this regard is evidence purporting to show that Russell
was treated less favorably than some permanent stewards who
it asserts were not limited to the same extent as Russell. How-
ever, those permanent stewards were, if anything, more active
in union affairs than Russell was. Facially, such comparisons
do not show that Russell was being discriminated against be-
cause of his union activity. For that, the General Counsel
would generally have to compare the way the Respondent treat-
ed Russell to more favorable treatment afforded to employees
in general or to those who had not engaged in the same protect-
ed activities. That was not shown. Indeed, the evidence did not
show that the Respondent had granted any unit employee, un-
ion activist or not, the level of freedom to leave their duties and
move around the facility that Russell tried to claim for himself.
The General Counsel also asserts that animus was shown be-
cause Russell was the last man standing who was able to carry
out the duties of steward. That is a theory about motivation,
but not evidence of that motivation. Such evidence is lacking
here. To the contrary, the General Counsel has not even shown
that Russell was, in fact, the last unit member available to fulfill
the duties of steward. Floering and Sims are both fill-in stew-
ards and were both employed at the facility during 2013 and
2014. Moreover, Rizo, an individual who had substantial past
experience as a permanent steward, was also working at the
Respondent at that time. Although the Respondent’s discussion
of this theory cites two cases and puts the phrase “last man
standing” in quotation marks, neither of the cases cited actually
uses the phrase much less holds that an employee’s circum-
stance as the only available steward would, if shown, alleviate
the need for evidence of animus. See Brief of the General
Counsel at Page 23, citing Bryant & Stratton Business Institute,
321 NLRB 1007 (1996), enfd. 140 F.3d 169 (2d Cir. 1998) and
Thill Inc., 298 NLRB 669 (1990), enfd. in part 980 F.2d 1137
(7th Cir. 1992).
Even if I had found that the General Counsel made a weak
initial showing of discrimination, I would find that the Re-
spondent has met its responsive burden. The evidence shows
that Russell had an exaggerated view of the freedoms that he
acquired upon becoming a fill-in union steward in November
2013. See Electro Controls, Inc., 161 NLRB 307, 320 (1966)
(employer did not violate the Act by disciplining an employee
who, after becoming a union steward, began to leave his work
area without permission and to do so to a greater extent than
other employees). As set forth above, the collective-bargaining
agreement between the parties placed limits on employees’
freedom to leave their work areas without notifying the Re-
spondent or obtaining authorization. The evidence shows that
union stewards have been allowed additional flexibility when
they are notified of possible contract violations, particularly if
they are not engaged in work activities at the time or are able to
complete their current assignment. However, that flexibility
did not extend as far as Russell took it—that is, to permit him
to leave his work activities whenever he decided to (including
for matters that may not have been union business) and to do so
without notice to, or permission from, the Respondent, and
even, on occasion, in contravention of a direct order to resume
his work duties. Such freedom was not shown to have been
granted to any employee at the facility—whether they were
active in union matters or not. To the extent that Russell was
leaving areas where he had work to perform, the record sug-
gests that he was doing so without giving notice or otherwise
following the procedures necessary to limit potential work dis-
ruptions caused by such absences. Given the nature of the work
that the unit employees were engaged in at the facility, and the
record as a whole, I find that the Respondent would have found
it necessary to take the actions it did with respect to Russell’s
movements around the facility absent any discriminatory mo-
tive.
I also find that the Respondent did not violate Section 8(a)(1)
by restricting Russell’s ability to leave the work to which he
was assigned without notifying the Respondent or obtaining its
approval. In general, an employer may restrict employees from
leaving their assigned work without permission. Heartland
Catfish Co., 358 NLRB 1117, 1118 (2012) (employer does not
interfere with Section 7 rights in violation of Section 8(a)(1) by
prohibiting employees from leaving a department during a shift
without permission); Emerson Electric Co., 185 NLRB 346
(1970) (employer does not violate Section 8(a)(1) by enforcing
a rule prohibiting employees from leaving their work stations
without supervisory approval); cf. Weyerhaueser Co., 251
NLRB 574, 583 (1980) (employer violates Section 8(a)(1) by
enforcing its rule against employees leaving their work stations
without permission more strictly in response to a union cam-
paign). Moreover, the record does not demonstrate any specific
instances in which the restrictions imposed by the Respondent
meaningfully interfered with the ability of Russell, or any other
steward or fill-in steward, to address a potential contract viola-
tion or otherwise fulfill their union duties.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find that the General Counsel has not shown that the Re-
spondent violated Section 8(a)(3) and (1) or Section 8(a)(1) by
restricting Russell’s movements at the facility.
The General Counsel also alleges that the Respondent dis-
criminated in violation of Section 8(a)(3) and (1) when it issued
a written disciplinary warning to Russell on January 3, 2014.
The General Counsel and the Respondent both acknowledge
that this discipline was premised on the incident involving Rus-
sell, Hendricks and Clemons that occurred on January 29 at the
guard station. The General Counsel and the Respondent also
both treat Russell as being engaged in union and/or protected
concerted activity at that time, and frame the question, at least
in part, as whether his conduct in the course of that activity
caused him to lose the protections of the Act. Under Atlantic
Steel Co., 245 NLRB 814 (1979), where an employer defends
disciplinary action on the basis of employee misconduct that is
part of the res gestae of the employee’s protected activity, the
Board decides whether the otherwise protected activity has lost
the Act’s protection based on a “careful balancing” of four
factors: (1) the place of the discussion; (2) the subject matter of
the discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an em-
ployer’s unfair labor practice. 245 NLRB at 816; see also
Lou’s Transport, Inc., 361 NLRB 1446 (2014); United States
Postal Service, 360 NLRB 677 (2014).
Under the circumstances present here, I conclude that to the
extent that Russell was engaged in protected activity at the
guard station he lost that protection through his misconduct.
After the Respondent had completed its hiring for the shift,
Russell took it upon himself to contact Clemons and tell him to
come to work. Before Clemons appeared, Hendricks defini-
tively told Russell that hiring for the shift was complete and
that Russell should notify Clemons not to come in. When
Clemons nevertheless arrived at the guard station, the Respond-
ent informed him that the hiring for the shift was closed. There
is no dispute that the Respondent—in this case Hendricks—is
the party that makes hiring decisions for particular shifts, and
the General Counsel has not claimed that Russell had a basis
under the contract or otherwise for contending that the decision
not to hire Clemons was an unfair labor practice. Although
Russell’s explanation is rather unclear as to why he left his
assigned duties without notice and came to the guard station, or
why he insisted on summoning Hendricks to the guard station, I
assume that at least one of his intentions was to give Clemons
and himself an opportunity to persuade Hendricks to reverse the
decision not to hire Clemons for the shift. I find that this was
protected concerted activity.
When Hendricks arrived at the guard station he reiterated
that Clemons would not be hired for the shift, and instructed
Russell to return to work on the barge. In response to the first
such instruction, Russell did not raise any issue regarding the
failure to hire Clemons, but rather became insubordinate and
used profanity. Hendricks continued to direct Russell to return
to his work, and eventually warned that failure to do so would
result in discipline, but Russell continued to defy those direc-
tions. Consideration under the factors articulated in Atlantic
Steel, leads me to conclude that Russell forfeited the protection
afforded to his protest over the hiring decision. His outburst
was directed at his supervisor, Hendricks, and took place in the
open and in the presence of others, including at least one unit
employee. Russell’s actions were a direct challenge to Hen-
dricks’ authority to decide who to hire and to direct Russell to
perform work duties. The General Counsel does not contend
that Hendricks was engaged in an unfair labor practice by re-
fusing to hire Clemons. Moreover, Russell’s outburst was not
an isolated incident, but the culmination of a continuing pattern
of refusing to respect the Respondent’s authority to direct work
at the facility.
The General Counsel cites Lewittes Furniture Enterprises,
Inc., 244 NLRB 810 (1979), for the proposition that an em-
ployees’ brief refusal to return to work while attempting to
raise a matter of concern with their employer does not cause the
employee to lose the protections of the Act. I do not find that
precedent applicable here for a number of reasons. First, Lewit-
tes Furniture is a pre-Atlantic Steel decision and it is not clear
how the Board would have viewed the facts present in Lewittes
under the controlling standard subsequently adopted in Atlantic
Steel. At any rate, the circumstances present in Lewittes Furni-
ture are far enough removed from those at issue here that it
would not be controlling precedent even if it had been issued
after Atlantic Steel. In Lewittes Furniture, a group of five em-
ployees stopped work for approximately 8 to 15 minutes while
asking the employer for a wage increase. There was no em-
ployee “outburst” in the sense discussed in Atlantic Steel and
engaged in by Russell, but rather a simple request for a pay
raise. Moreover, the employee in Lewittes Furniture did not
refuse an order to return to work. Indeed the employer did not
make such an order, but rather responded to the employees’
request for a raise by ordering them to “get the hell out” of the
facility, and issuing termination notices to them. Russell, in
contrast, was insubordinate in that he refused a repeated order
from his supervisor to return to his work duties, and used pro-
fanity in the process. Moreover, he did this even though the
Respondent had already discussed with him the issue relating to
hiring Clemons for the shift. In addition, I consider it signifi-
cant that in Lewittes a group of employees were raising their
concern regarding one of the most important terms and condi-
tions of employment—that is, their ongoing rate of pay. Rus-
sell’s more belligerent and persistent protest, on the other hand,
concerned the Respondent’s decision not to assign one employ-
ee to one shift on one day.
The General Counsel also cites Avante at Boca Raton, Inc.,
332 NLRB 1648 (2001), for the proposition that an employee’s
brief refusal to return to work while attempting to discuss a
matter of concern is not insubordination. However, it is not
surprising that the employee in Avante was not considered in-
subordinate since the individual whose direction he refused was
a nonsupervisory employee who lacked authority to give orders
to the refusing employee. Moreover, the reasoning in Avante
specifically relies on the fact that that employee’s statements,
unlike Russell’s, did not include the use of profanity.
The General Counsel, in addition to arguing that Russell’s
actions did not cause him to lose the protections of the Act with
respect to his activities at the guard station on December 29,
also argues that the timing of the disciplinary warning suggests
that it was discriminatorily based on unlawful animus resulting
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 29
from Russell’s exchange with Leach on the morning of January
3, 2014, and demonstrated by Leach’s unlawful threat at that
time. As discussed above, the General Counsel has failed to
show that Leach unlawfully threatened Russell on January 3,
2014, and has also failed to show the Respondent harbored
unlawful animus against Russell’s protected activities for pur-
poses of the Wright Line analysis. Moreover, I do not find the
timing of the disciplinary notice to be suspect. It was issued
within a few days of the December 29 incident that the paper-
work references and during which incident Hendricks specifi-
cally warned Russell that he would be disciplined if he contin-
ued to refuse to return to his work duties. Moreover, the rela-
tively thorough nature of the letter and disciplinary notice—
which, inter alia, include citations to specific work rules and
provide relevant attachments—undercuts the General Counsel’s
suggestion that the discipline was thrown together on January 3
to retaliate for Russell’s comments to Leach that morning.
Finally, the mild nature of the discipline is consistent with the
view that such discipline would have been imposed absent any
discriminatory motive, regardless of whether harsher discipline
such as suspension or termination could, under the circum-
stances, have been defended. To sum up, the General Counsel
has failed to make the initial showing of animus required under
Wright Line. Even if it had, the Respondent has shown that it
would have issued the disciplinary write-up to Russell based on
the December 29 misconduct referenced in that write-up even if
Russell had not engaged in protected activity.
For these reasons, I find that the allegation that the Respond-
ent violated Section 8(a)(3) and (1) when it issued a written
warning to Russell on January 3, 2014, should be dismissed.
J. Termination of Brown
The General Counsel alleges that the Respondent violated
Section 8(a)(3) and (1), and Section 8(a)(4) and (1) of the Act
by discriminatorily terminating Brown on October 1, 2013,
because of his union activity and participation in the Board’s
processes. Leach, who made the decision to terminate Brown,
testified that he did so exclusively because Brown caused dam-
age to an end loader by riding the brakes while operating it on
the night shift of September 19 to 20, 2013.24
1. Brown’s History at the Facility: Brown began working at
the facility in 2004. Prior to July 2012, Brown was an ILA
member, but not an ILA officer. Brown was elected president
of the ILA local when it emerged from trusteeship in July 2012,
and continued to hold that position at the time of the hearing in
this matter. During his time as president, Brown has served as
chief contract negotiator for the ILA local, chairman of the
safety committee, and the ILA’s representative for purposes of
grievance processing. Brown was also the ILA official who, on
August 5, 2013, directed the ILA unit employees to stop work
over the dispute regarding the use of non-ILA individuals to
handle aluminum on the wet side of the facility, and during that
work stoppage he was the union officer who presented the
ILA’s position to Leach. On June 10–14 and August 21, 2013,
during a prior unfair labor practices proceeding against the

24 That shift began at 6 p.m. on September 19, 2013, and ended at 6
a.m. on September 20, 2013.
Respondent, Brown was present as a representative of the ILA
local and also testified.
For a period of time after starting at the facility, Brown was a
regular list employee, however, he rather quickly acquired the
skills necessary to qualify for placement on the skilled list and
more consistent employment.25 Leach asked Brown to join the
skilled list in the fall of 2007 and again in 2008. In at least one
of those instances, Leach attempted to require Brown to join the
skilled list, but the collective-bargaining agreement permitted
Brown to decline and he did so. Brown eventually joined the
skilled list on July 1, 2011. Generally only a small minority of
the unit employees qualify for the skilled list. The various
order of call documents submitted at the hearing have between
6 and 11 unit employees on the skilled list and between 25 and
51 unit employees on the regular list. The order of call list that
the Respondent issued immediately prior to Brown’s termina-
tion states that he was qualified for: signalman, rigging, crane
operator, checker, forklift operator, end loader operator, and
fall protection. This was as high a number of areas of qualifica-
tion as any employee on that order of call list.
Shortly after Brown became president of the ILA local, the
Respondent, on August 9, 2012, issued two written disciplinary
notices to him for causing damage at the facility. One con-
cerned an incident on July 27, 2012, that resulted in damage to
a warehouse wall. The notice stated that “this incident can be
attributed to operating the forklift at a speed unsuitable for the
conditions.” The other disciplinary notice was a written repri-
mand, which stated that, on August 4, Brown had damaged a
power line with the end loader he was operating. That notice
stated that “[a]fter an investigation, it has been determined that
this situation could have been avoided had [Brown] examined
the area thoroughly before raising the bucket of the end loader.”
Both notices are signed by Leach and conclude by stating that
“[a]ny further occurrences could result in equipment disqualifi-
cation, suspension, and or termination.”26
2. Prior Decision Regarding Discrimination against Brown:

25 A unit employee must become qualified to perform four of the
types of skilled work listed in the collective-bargaining agreement in
order to move onto the skilled list.
26 During his testimony, Leach stated that there was an incident in
approximately 2007 or 2008 when Brown had misused the brakes on a
forklift. Brown denied the incident described by Leach. I do not find it
necessary to resolve this factual dispute. Leach testified that he made
the decision to discharge Brown based exclusively on Brown’s opera-
tion of 3-Kawasaki on September 19–20, 2013, not on anything that
occurred in 2007 or 2008. Tr. 1748–1749. Similarly, the paperwork
prepared by the Respondent for Brown’s termination makes no refer-
ence to any incident in 2007 or 2008, or to any basis for the termination
other than the September 2013 damage. GC Exh. 43. I note, moreover,
that the disputed incident in 2007/2008, even if it did occur, was quite
distant in time. The Respondent’s policy handbook provides that “doc-
umentation of violations of at-risk behaviors and/or company policies”
must be maintained in the employee’s personnel file for 9 months after
the documentation is created and that the employee may seek to have
such violations removed from his or her personnel file after that period.
Jt. Exh. 2 (Progressive Disciplinary Policy #2000) at Section II.E. At
the time the Respondent terminated Brown, the 2007/2008 incident that
Leach mentioned would have been several years outside the 9-month
period.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In a decision dated March 31, 2015, the Board affirmed the
decision of Administrative Law Judge Mark Carissimi in an
earlier case involving the same employer and union. Midwest.
Terminals of Toledo International 362 NLRB No. 57 (2015)
That decision found, inter alia, that the Respondent bore animus
against Brown because of his protected activities and unlawful-
ly discriminated against him on that basis by denying him regu-
lar work assignment and light duty work assignments. Leach,
the decision found, had lied about his reasons for denying light
duty work to Brown and that the real reason was unlawful dis-
crimination. Among the other findings was that Leach had
made an antiunion threat and had physically assaulted an em-
ployee because of that employee’s union and/or protected con-
certed activity. The hearing in the prior case was held on June
10–14, 2013, and August 21, 2013. Brown was present
throughout that proceeding as a party representative and testi-
fied during the August 21 session.
3. Brown and the End Loader Damage in September 2013:
The Respondent contends that Brown was discharged for caus-
ing damage to the end loader he was operating on the night
shift of September 19–20. The particular end loader Brown
was operating at that time is referred to at the facility as “3-
Kawasaki.” Brown had been operating various end loaders for
6 days in a row culminating with that shift. From September 16
to 19, the 3-Kawasaki loader was in almost continuous opera-
tion, with Ralph Leiby, another bargaining unit employee, op-
erating it during the day shifts from 8 am to 5 pm.
Before starting work on an end loader, the operator is re-
quired to perform a preshift inspection. That entails turning on
the end loader, checking the gauges, then moving it and engag-
ing the brakes. Neither Brown nor Leiby reported discovering
any problems with 3-Kawaski during their pre-shift inspections
on September 19.
During the night shift on September 18 to 19—that is, during
the shift prior to the one on which the Respondent says Brown
damaged 3-Kawasaki—Brown was operating 3-Kawasaki when
a warning light briefly flashed on the control panel. Brown
informed Moody—the supervisor on duty—about this and
Moody told Brown to inform him if the warning light came
back on. The warning light did not come back on. Brown
mentioned the warning light to Leiby, and Leiby told Brown
that he had concerns about the transmission. When Brown next
operated 3-Kawasaki, he paid attention to the transmission, but
did not notice a problem.
During the September 19–20 shift, Brown was using 3-
Kawasaki to pick up coke or coal from a pile and move it to a
dumping location about 100 yards away. Fussell was doing the
same work on a different end loader, and was generally follow-
ing behind Brown as the two went back and forth between the
pile and the dumping location. The area where this work was
being done was lit. Brown denies that he was riding the brakes
during that shift, and states that for most of the shift he did not
experience any problems with 3-Kawasaki. Fussell testified
that Brown was not riding the brakes during that shift. Fussell
explained that he would have known if Brown had been doing
so because it would have slowed their work unreasonably. He
also testified that he did not see the 3-Kawasaki’s rear brake
lights come on while he was following behind Brown.
Moody, the supervisor on the night shift, communicated with
Brown and Fussell by way of a radio system. The radio system
allowed Fussell to hear communications not only from Moody
to himself, but also between Moody and Brown. During the
shift, Moody also sometimes approached Brown and Fussell
while they were on the end loaders in order to talk with them in
person. The last time Moody did this during the September 19–
20 shift was at about midnight. When he approached Brown
and 3-Kawasaki on that shift, Moody did not notice unusual
smells or anything else that would suggest a problem with the
equipment’s brakes, nor did he observe Brown operating 3-
Kawasaki in an improper manner.
Towards the end of Brown’s September 19–20 shift, a warn-
ing light was triggered in 3-Kawasaki and stayed lit. Brown
was not familiar with the particular warning light. Brown also
noticed a buzzing sound. He stopped the end loader and called
Moody on the radio and told him that a sensor had been trig-
gered on 3-Kawasaki. Moody told Brown to take 3 Kawasaki
to the maintenance shop.27 Brown brought 3-Kawasaki to the
maintenance shop and told a maintenance employee about the
warning light.
When Hendricks arrived at work shortly before 6 am on Sep-
tember 20, a maintenance employee advised him that there was
a problem with 3-Kawasaki. Hendricks inspected it, and ob-
served that there was warning light and a burning odor. He
could feel heat “coming off” the loader. Leach arrived at the
facility shortly after Hendricks, and Hendricks informed him of
the problem. Leach testified that he did not recall if anyone had
moved 3-Kawasaki after Brown stopped operating it. (Tr.
1813.) Leach stated that even from a distance he could “smell
the brakes” on 3-Kawasaki and that when he got closer he ob-
served heat-related discoloration to parts of the brakes. Ac-
cording to Leach, an operator should be able to tell something
is wrong with the brakes by the smell. Leach told Hendricks
not to let anyone else move the end loader until a representative
arrived from Reco Equipment, Inc. (Reco). Reco is the outside
contractor that the Respondent uses for major repairs to the
Kawasaki end loaders. Later on September 20—the same day
the damage was discovered—Robert Groweg, a heavy equip-
ment mechanic from Reco with 23 years’ experience, arrived at
the facility. Leach asked Groweg to do a full assessment of
what was wrong with 3-Kawasaki. Leach testified that at this
point he already thought that the damage was the result of “in-
attentive operating” by Brown, but that he wanted this conclu-
sion to come from Reco, rather than from himself, because he
was concerned that he would be accused of discriminating
against Brown. Leach had no further conversation with
Groweg about the matter. Leach did, however, discuss the
situation and Groweg’s assignment with Laverne Jones, a non-
unit employee in the maintenance department.
Groweg did an initial examination of 3-Kawasaki on Sep-
tember 20. The damage he observed went well beyond normal

27 Brown and Fussell both testified that Brown had used the radio to
notify Moody of this problem. Moody testified that he did not recall
that communication, but his answers make clear that he was only testi-
fying that he did not recall such a conversation, not that he recalled that
such a communication had not taken place.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 31
wear and tear and eventually required approximately $25,000 in
repairs. On that first day, Jones asked Groweg what was wrong
with the end loader. Groweg told Jones that he had not found
anything mechanically wrong that would explain the damage.
In response to Jones’ questioning, Groweg stated that the “only
thing that could be left is if an operator was resting his foot on
the brake pedal when they were running it.” Jones asked
Groweg to put that information in the service report. Groweg
had never included a statement assigning blame in a service
report before, Tr. 1366, but he did so in this case because of
Jones’ request.28 The service report that Groweg created that
day was one page long and including the following statement:
Drove to jobsite. Checked out brakes on loader. Found final
drives were pretty hot. Checked temp of final drive covers
and rear axle was about 150 degrees and front axle was 110
degrees after setting [sic] 4 to 5 hours. Looked at wheel seals
left rear is leaking already. Checked accumulators and the
pressures little low but not enough to be a problem. Brakes
and seals are going to need replaced. Problem was do [sic] to
operator not using machine properly.
(GC Exh. 29.) Groweg did not talk to Brown or any other op-
erator, nor did he complete a full inspection, before making this
initial report on September 20.
It was only after September 20, that Groweg did a full in-
spection of 3-Kawasaki by removing its wheels and accessing
various components. Before finishing the work, Groweg com-
pleted 12 additional service reports regarding 3-Kawasaki.
Through the course of the work, Groweg identified a number of
mechanical factors that could have played a part in the brake
damage. Groweg found that the “transmission disconnect’
system was not working on the 3-Kawasaki at the time Brown
was operating it, thus compromising a mechanism that Groweg
testified was designed to ensure “that the transmission is not
trying to pull through the brakes when you’re raising the load-
er.” (Tr.1350–1351, 1354–1355.) Groweg also concluded that
at the time Brown was operating 3-Kawasaki its brake pressure
switch was broken. According to Groweg, the brake power
switch “tells the computer when you’re applying the brakes and
also it gives you brake pressure so you can see what the brake
pressure is when you push on the brake pedal, at different posi-
tions on the brake pedal what the pressure is.” (Tr. 1356.)
Groweg’s post-September 20 service reports note, inter alia,
that on October 4, Groweg discovered that the brake pressure
switch was “bad” and that when he checked the transmission
the disconnect did not operate. (GC Exh. 29.) Groweg told
both Jones and an attorney for the Respondent that Brown
could have caused the damage without knowing it because if he
applied a slight bit of pressure to the brakes “you may not feel
it in the operation of the loader.” (Tr. 1377–1380.) At trial
Groweg indicated that he was not sure that the operator had
caused the damage by riding the brakes. (Tr. 1348.)
On September 27, 2013—7 days after the Respondent dis-
covered the damage to 3-Kawasaki—Leach approached Brown

28 Jones was not called as a witness in this case to explain what led
him to ask Groweg to report his surmise regarding operator error in his
initial service report.
about the damage for the first time. Leach interrupted Brown’s
work, and said “Tell me what happened to the end loader.”
Brown did not understand what Leach’s question referred to
since he had recently operated three or four different end load-
ers and had not operated 3-Kawasaki since September 20.
Brown replied, “What?” Leach said “I want you tell me what
happened to the end loader.” Brown asked “Which end load-
er?” and Leach said, “The one you were riding.” Leach even-
tually revealed that he was talking about 3-Kawasaki and said
“I want to know what you did to it.” Brown replied: “I didn’t
do nothing to it. What’s wrong with it?” Leach told Brown,
“Tell me anything that might have . . . happened to it.” Brown
related that Leiby had mentioned concerns about the transmis-
sion. Leach said: “I ain’t talking about the transmission. The
brakes.” Leach said he wanted Brown to give him a written
statement regarding “everything that happened.” Brown said
that he would give a statement when they met and Leach ex-
plained what he was asking about. Leach said, “Okay. We’ll
probably meet on Monday.” Brown indicated to Leach that he
would give a statement at that time. Leach, however, did not
attempt to meet with Brown on Monday. Nor did he make any
further efforts to obtain a statement from Brown prior to termi-
nating him.29
Leach testified that his effort to investigate the damage to 3-
Kawasaki, in addition to the above, consisted of talking to
Leiby and Hendricks. Leach did not memorialize these conver-
sations in writing. Leach chose not to interview Fussell about
the matter despite the fact that Fussell had been in a position to
observe Brown operating 3-Kawasaki throughout the Septem-
ber 19–20 shift. Indeed, the evidence does not show that, prior
to making the decision to terminate Brown, Leach interviewed
a single witness who observed Brown working on September
19–20.
On October 1, 2013, Leach presented Brown with a letter
terminating his employment. The letter was signed by Leach,
and the body of the letter stated in its entirety:
After completing the investigation for equipment abuse and
misuse, it is my duty to inform you that your employment
with Midwest Terminals of Toledo International, Inc. is ter-
minated effective immediately. If you have not done so al-
ready, please turn in all company property (keys, gate card,
etc.) in your possession prior to leaving the facility today and
remove all personal items from your locker.
The Respondent did not attach documentation or an investiga-
tive report to this letter. When he received the letter, Brown
asked: “Where is the investigation? Where is the documenta-
tion?” Leach answered “You have what you need in front of
you. I will tell you right now, verbally, that we are already at
$20,000.” At trial, Leach testified that the primary basis for
this decision was the one-page initial report that Groweg com-

29 I base this account of the September 27 exchange largely on the
testimony of Brown, which was more detailed than, and largely con-
sistent with, Leach’s testimony about it. To the extent Brown’s and
Leach’s testimonies conflict, I credit Brown. I found Brown to be an
honest, if extremely circumspect, witness and generally more credible
regarding disputed matters than Leach. For the reasons discussed
above, I found Leach less than fully credible. See, supra, fn. 3.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pleted on September 20. Leach testified that he never spoke to
Groweg about that report. Moreover, Leach did not claim that
prior to October 1, or later when he denied the grievance re-
garding the discharge, he considered any of the subsequent
reports that Groweg prepared for the Respondent, including
those which stated that the brake pressure switch had been
“bad” and that the transmission disconnect mechanism had
been inoperable. Nor did Leach state whether he was aware of,
or considered, the fact that Groweg had reported to Jones and
Respondent’s counsel that, under the circumstances, Brown
could have caused the damage without knowing it.
The ILA grieved the decision to terminate Brown, and the
Respondent denied the grievance. At the step one grievance
meeting, Leach told Brown and Sims that Brown had caused
damage by “riding the brakes.” Brown told Leach that he had
not been riding the brakes. Leach responded: “Gentleman, the
union wants Otis[ Brown] reinstated. That is not going to hap-
pen.” The Union moved the grievance to step two, and on Oc-
tober 16, 2013, the Respondent denied the grievance again.
When Brown applied for unemployment compensation, the
Respondent opposed his application, contending that Brown
was barred from receiving such compensation because his ter-
mination was for just cause. The State of Ohio Unemployment
Compensation Review Commission rejected the Respondent’s
contention, and found that the Respondent lacked just cause to
discharge Brown. The Respondent appealed, but the decision
of the State Review Commission was upheld in court. See
Cardiovascular Consultants of Nevada, 323 NLRB 67 fn. 1
(1997) (state unemployment compensation decisions are admis-
sible in Board proceedings but not controlling).
4. Respondent’s Written Policy on Damage and the Evidence
Regarding Treatment of Others: At all times relevant to
Brown’s termination, the Respondent maintained “Equipment
Abuse & Misuse Policy #3050.” That Policy classifies “hard
breaking” as a Level I offense (the lowest level), “excessive
hard breaking” as a Level II offense (the middle level), and
causing “brake system damage due to hard breaking” as a Level
III offense (the highest level). The policy sets forth progressive
discipline for each level of offense. For Level I and Level II
offenses, termination is not a possibility until the fourth and
third offenses respectively. For Level III offenses, termination
is generally not a possibility until the second offense, however,
this is qualified by a section stating that any Level III offense
“resulting in equipment damage and facility damage over $500
. . . may result in termination.” The Respondent asserts that it
terminated Brown pursuant to its Abuse and Misuse policy
because he caused brake system damage and that damage ex-
ceeded $500. The policy handbook also contains a section titled
“Equipment Policy #3000” which provides, inter alia, that
“damage to any piece of equipment, facility, or property,” or
“mistreatment of equipment” may result in termination in the
case of first offense and will result in termination in the case of
a second offense. The Respondent does not claim that Brown
was terminated pursuant to Equipment Policy #3000, but rather
states that he was terminated pursuant to the Equipment Abuse
and Misuse Policy #3050, which is outlined above. Brief of
Respondent at Page 12. However, a number of the comparator
employees identified by the parties appear have been disci-
plined pursuant to Equipment Policy #3000.
The parties introduced information regarding the discipline
imposed on multiple other employees whose actions resulted in
damage to equipment or structures at the facility. In all but one
of those cases, the employee received either discipline short of
termination, or no discipline at all. The record shows that, in
January 2012, Joseph Victorian, Sr., (J. Victorian) drove an end
loader into a gas line and barrier poles, causing damage to both,
but was not disciplined. In June 2012, J. Victorian was at fault
in an accident that caused over $50,000 worth of damage to an
end loader. Leach disciplined J. Victorian for that accident
with a written warning and disqualification from end-loader
operation for 30 days. J. Victorian was an ILA-represented
employee, but was not shown to be a union official or particu-
larly active in union affairs. Another employee, Newcomer,
was not terminated even after multiple accidents in which he
caused damage to equipment or structures. These accidents
included knocking over a telephone pole, “slicing” two railcars,
and damaging a vessel while loading material onto it with a
crane. In the case of the damage to a vessel, the repairs re-
quired a team of four outside iron workers. In 2014, Newcomer
backed a crane into a coal pile and tore a stabilizer off the
crane. Newcomer received a “write-up” for that incident.
Newcomer was a union member, but had no position with the
union. In July 2008, Moody, a nonsupervisory unit employee
at the time, ran the forklift he was operating into a transformer,
causing damage that required over $28,000 in repairs by an
outside electrical contractor. Leach punished Moody for this
incident with a written reprimand. In 2010 or 2011, Moody had
another accident—this time hitting an employee with his fork-
lift and necessitating a visit by that employee to a hospital.
There is no evidence in the file that Moody received any disci-
pline at all for that accident. In 2013, Ryan “Moose” Richard-
son, a non-unit employee, was operating a crane and caused
damage to its hydraulic system. The Respondent did not issue
any discipline to Richardson for that accident.
In its brief, the Respondent itself admits that there were mul-
tiple other instances in which it issued nothing more than writ-
ten or verbal reprimands to employees who were involved in
accidents that caused damage to equipment or structures. Brief
of Respondent at Pages 36–37. These instances include ones in
which the employee: damaged a carbon fiber grill while operat-
ing an end loader in 2011; was operating a forklift and collided
with a support beam in 2013; tipped a forklift over in 2013;
shattered a windshield as a result of operator error in 2013; and
drove a front-end loader into a hole.
The Respondent cites only a single employee, other than
Brown, who it discharged for causing damage to equipment or
structures at the facility. That employee was J. Victorian who,
as discussed above, had already been subjected to lesser disci-
pline for causing damage on two separate occasions in 2012—
one of which resulted in repairs costing in excess of $50,000. J.
Victorian was terminated after yet another accident, this one in
2013, which required extensive repairs. In that instance the
Respondent concluded that J. Victorian was operating a forklift
in an unsafe manner when he collided with the main support
beam in the largest warehouse at the facility. The Respondent
had to call in an outside contractor to make repairs and ensure
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 33
that the warehouse roof did not collapse. Leach testified that
before terminating J. Victorian for this accident he conducted
an investigation that included obtaining statements from J. Vic-
torian and other individuals who were present when the acci-
dent occurred.
Analysis
The General Counsel alleges that the Respondent discrimi-
nated in violation of both Section 8(a)(3) and (1) and Section
8(a)(4) and (1) of the Act when it discharged Brown on October
1, 2013. These claims are properly analyzed using the burden
shifting approach set forth in Wright Line, supra. The General
Counsel has introduced evidence sufficient to make out a prima
facie case that the Respondent discriminated against Brown. At
the time Leach made the discharge decision, he was aware that
Brown was the president of the ILA local and served as the ILA
local’s chief negotiator and its representative for purposes of
grievance processing. In addition, just 2 months before Leach
terminated him, Brown led the unit in a work stoppage to pro-
test Leach’s unlawful use of non-ILA individuals on the wet
side of the dock. Brown had also testified against the Respond-
ent in a recent Board hearing involving multiple claims that the
Respondent committed unfair labor practices against ILA
members. Brown was present as a party representative
throughout that hearing, which eventually resulted in a decision
finding, inter alia, that Leach had lied about the reason for
denying Brown light duty work and that the real reason was
discrimination based on Brown’s protected activities. 362
NLRB No. 57 (2015). There is no question that at the time of
his termination, Brown was the leading ILA activist at the facil-
ity and that the Respondent was aware of this.
The record also amply demonstrates that the Respondent,
and in particular Leach, harbored animus against the ILA. This
animus is demonstrated on the record of this case by the Re-
spondent’s discrimination against Hubbard, as well as by the
fact that Leach reacted to F. Victorian’s protest regarding an
unfair labor practice by raising his voice and warning “I’m
about this far off your ass.” As discussed above, in a recently
decided case the Board affirmed that Leach had lied about the
reason for denying Brown light duty work and that the action
was the result of animus against Brown’s protected activities.
In addition, the Board affirmed, that Leach was so hostile to
protected activity that in one instance he reacted such activity it
by assaulting the employee involved.30 Although the evidence
did not include any overt expressions of animus directed at
Brown’s participation in the Board’s processes, it is reasonable
to infer that the Respondent’s demonstrated animus towards the
exercise of Section 7 rights would extend to Brown’s efforts to
vindicate those Section 7 rights using the Board’s processes.
Moreover, in its unlawful actions against Hubbard, which are
discussed above, the Respondent demonstrated hostility to-
wards employee participation in the Board’s processes. See
Commercial Air, Inc., 362 NLRB No. 39, slip op. at 1 fn. 1
(2015) (“[P]roving that an employee’s protected activity was a

30 The decision in the prior case involving the same employer may
be relied on as background evidence in this proceeding, including on
the question of animus. See Norman King Electric, 334 NLRB 154,
159 (2001); Stark Electric, Inc., 327 NLRB 518 fn. 2 (1999).
motivating factor in the employer’s action does not require the
General Counsel to make a particularized showing of animus
towards the disciplined employee’s own protected activity.”).
The timing of Brown’s discharge also supports finding that
unlawful animus was a factor. Success Village Apartments,
Inc., 348 NLRB 579 fn. 5 (2006) (timing of discipline in rela-
tion to charges and Board hearing was evidence of animus);
Detroit Paneling Systems, Inc., 330 NLRB 1170 (2000) (timing
is an important factor in assessing motivation in cases alleging
discriminatory discipline based on union or protected activity).
Brown had been an employee at the facility for 9 years, and
Leach discharged him less than 60 days after Brown led a work
stoppage regarding the highly contentious dispute over Leach’s
use of non-ILA employees on the wet side of the dock, and
within 6 weeks after Brown testified against the Respondent in
an unfair labor practices hearing. Moreover, the write-ups that
Leach had previously issued to Brown on August 9, 2012, were
imposed within a few days or weeks after Brown became presi-
dent of the ILA local.
Although the above evidence is more than sufficient to
demonstrate the necessary animus, I find that further evidence
is provided by the testimony and exhibits showing that the Re-
spondent treated Brown more harshly than other employees. It
is true that the Respondent’s policies #3000 and #3050 dis-
cussed discipline, including under certain circumstances disci-
pline up to termination, for employees who caused damage to
equipment or structures. However, the record shows that it was
overwhelmingly the exception, rather than the rule, for the Re-
spondent to react to such damage by discharging the involved
employee. In at least 10 prior instances discussed above, the
Respondent imposed discipline short of discharge, or no disci-
pline at all, on employees it found responsible for causing dam-
age at the facility. These included instances in which individu-
als caused damage in excess of that which the Respondent at-
tributes to Brown, but who, unlike Brown, were not the facili-
ty’s leading union activist. See T. Steele Construction, 348
NLRB 1173, 1186 (2006) (“When employees who were not
involved in protected activity are given lesser discipline for
worse conduct it suggests an improper motive.”). In one of
those instances J. Victorian’s error resulted in damage costing
over $50,000 to repair—about twice the amount attributed to
Brown—and yet the Respondent let J. Victorian off with a writ-
ten warning and a 1-month disqualification from operating a
particular type of equipment. In another, Moody caused
$28,000 in damage and Leach let him off with a written repri-
mand.
Since the General Counsel has succeeded in making the re-
quired initial showings under Wright Line, the burden shifts to
the Respondent to show that it would have discharged Brown
based on the damage to 3-Kawasaki even if Brown had not
engaged in protected activity and/or participated in the Board’s
processes. Camaco Lorrain, supra; ADB Utility, supra; Inter-
met Stevensville, supra; Senior Citizens, supra. The Respondent
has failed to meet its responsive burden in this case. The Re-
spondent’s argument stumbles at the outset given the evidence,
discussed immediately above, that the Respondent dealt far
more harshly with Brown than it did with other employees to
whom it attributed damage at the facility. Against the parade of
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
examples of more lenient treatment, the Respondent offers a
single example in which it terminated an employee for causing
damage at the facility. As discussed above, that employee–J.
Victorian—had previously been retained after causing damage
on two prior occasions, even though there was no doubt that J.
Victorian was culpable and, in one case, the damage was twice
as costly to repair as that for which the Respondent claims to
have discharged Brown. The Respondent did not terminate J.
Victorian until, within the same 2-year period, he caused yet
another major accident—one that threatened to bring down the
roof of the Respondent’s largest warehouse.
Moreover, the record shows that Leach, who has already
been shown to be disposed to discriminate against Brown, leapt
at the chance to use the damage to 3-Kawasaki as a grounds for
terminating him.31 Before becoming president of the ILA local,
Brown had a long history as a valued equipment operator for
the Respondent. In fact, prior to Brown’s emergence as a union
activist, Leach had valued him so highly that he repeatedly tried
to get Brown to join the skilled list. Brown had been operating
end loaders at the facility for many years. Given these circum-
stances, it is reasonable to expect that Leach would have sub-
stantial doubts about the likelihood that Brown would suddenly
become so incompetent or careless an operator as to cause ma-
jor damage to an end loader absent a mechanical failure or an
accident of some sort. However instead of evidencing any such
doubts, Leach seized the opportunity to attribute the damage
entirely to Brown.
Leach testified that the primary thing he relied on in deciding
to terminate Brown was the initial one-page service report that
Groweg prepared on the day that the damage to 3-Kawasaki
was discovered, although Leach admitted that even before re-
ceiving that report he attributed the damage to inattentive oper-
ation by Brown. As discussed above, during Groweg’s initial
examination of 3-Kawasaki he could find no mechanical expla-
nation for the damage and therefore believed that improper
operation was the cause. Groweg testified that this was merely
his surmise at that time and that he could not be certain. How-
ever, at Jones’ urging, Groweg did something he had never
done before—he included his impression regarding operator
error in the initial service report.
After carefully considering the record evidence here, I find
that the Respondent has not shown that Leach would have dis-
charged Brown based on that initial service report if not for
Brown’s protected union activities and participation in the
Board’s processes. While Groweg’s initial report summarily
states that improper use by the operator caused the damage, it
does not state that such improper use occurred during the shift

31 See New Orleans Cold Storage & Warehouse Co., 326 NLRB
1471, 1477 (1998) (An employer’s “failure to conduct a meaningful
investigation and to give the employee who is the subject of the inves-
tigation an opportunity to explain are clear indicia of discriminatory
intent.) enfd. 201 F.3d 592 (5th Cir. 2000); see also Health Manage-
ment, Inc., 326 NLRB 801, 806 (1998) (fact that discharge was close in
time to protected activity and imposed “on the basis of a questionable
determination in a rush to judgment” over culpability and despite the
employee’s denial support an inference that the nondiscriminatory
reason offered by the employer was pretextual), enfd. in relevant part
210 F.3d 371 (6th Cir. 2000).
when Brown was operating 3-Kawasaki, as opposed to during a
prior shift, or over the course of multiple shifts, or during any
movement of the end loader that may have occurred after
Brown parked it.32 The evidence shows, moreover, that
Groweg submitted 12 additional service reports to the Re-
spondent as he completed a full inspection of, and repairs to, 3-
Kawasaki. Based on his full inspection, Groweg found that,
contrary to his initial impression, there were mechanical prob-
lems with 3-Kawasaki. He discovered, inter alia, that the brake
pressure switch and the transmission disconnect mechanism
were both dysfunctional during Brown’s last shift operating it.
Those are both mechanisms that assist the operator in protect-
ing the brakes. Groweg informed Jones and counsel for the
Respondent that, under the circumstances, the operator could
have caused the damage without knowing it. Leach did not
explain why he insisted upon continuing to rely on Groweg’s
vague initial assessment even after Groweg’s more thorough
inspection led him to report that the brake pressure switch and
transmission disconnect mechanism had not been functioning
and that the damage could have occurred without the Brown’s
knowledge. Leach did not even have a conversation with
Groweg about his inspection reports prior to discharging Brown
and denying the Union’s grievance regarding it.
The conclusion that the Respondent has failed to show that
Leach would have terminated Brown if not for Brown’s pro-
tected activity is buttressed by other aspects of how Leach han-
dled his inquiry about the damage. In the case of J. Victorian,
Leach imposed the harsh discharge penalty only after he ob-
tained J. Victorian’s statement and interviewed witnesses to the
accident. That stands in stark contrast to the way Leach han-
dled the investigation regarding Brown’s responsibility for the
damage to 3-Kawasaki. Leach discharged Brown without ob-
taining his statement, even though Brown had offered to meet
and give a statement. See Amptech, Inc., 342 NLRB 1131,
1146 (2004), enfd. 165 Fed. Appx. 435 (6th Cir. 2006) (failure
to inquire of the disciplined employee as to “what had occurred
constituted a rush to judgment attributable to Respondent’s
unlawful motivation to take adverse action against the leading
prounion employee on the premises); see also, New Orleans
Cold Storage, supra. In addition, Leach decided to terminate
Brown without interviewing Fussell—the one witness who had
been working with Brown throughout the relevant shift and
who was in the best position of anyone other than Brown him-
self to observe whether Brown was riding the brakes during the
shift and whether there were any burning smells that should
have alerted Brown to a problem. Fussell’s testimony indicated
that, had Leach bothered to interview him, Fussell would have
reported that Brown was not riding the brakes on 3-Kawasaki
during the shift in question. Leach did not even claim that be-
fore terminating Brown he interviewed Moody, the acting su-
pervisor and someone who, during the relevant shift, was in
radio contact with Brown and had several opportunities to ap-
proach Brown while he was on 3-Kawasaki and to perceive any
unusual burning odors.
For the reasons discussed above, I conclude that Leach

32 Leach testified that he did not know if anyone had moved 3-
Kawasaki after Brown turned it in. Tr. 1813.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 35
seized on the damage to 3-Kawasaki as a pretext to rid the fa-
cility of the most active prounion employee in the ILA bargain-
ing unit, without regard to culpability for the damage. Even
assuming that Leach believed in good faith that, despite
Brown’s long history as valued employee, he had a lapse in
operating competence that caused the damage, the record indi-
cates that Leach would have imposed discipline short of dis-
charge, as he did for the vast majority of other employees, if
not for the unlawful animus against Brown’s protected union
activities and participation in the Board’s processes.
I find that the General Counsel has established that the Re-
spondent discriminatorily terminated Brown in violation of
Section 8(a)(3) and (1) and Section 8(a)(4) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Longshoremen’s Association, Local
1982, AFL–CIO, (the Union, or the ILA, or the ILA local) is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent, by Christopher Blakely, unlawfully
threatened Prentis Hubbard in violation of Section 8(a)(1) by
telling him that he was too busy with Hubbard’s union charges
and grievances to complete the paperwork relating to Hub-
bard’s workers’ compensation claim.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act: since August 2013, by unilaterally changing its established
past practice regarding transfer of aluminum at the facility in a
manner that deprived the ILA bargaining unit employees of
work that they had historically performed; since November
2013, by unilaterally reassigning calcium unloading work his-
torically performed by the ILA bargaining unit employees to
others outside the unit; since June 23, 2013, by unilaterally
ceasing informal crane training for ILA bargaining unit em-
ployees; and when it denied Hubbard pay that he was entitled to
under past practice and the collective bargaining agreement for
hours he would have worked on August 11, 2013, if he had not
left work due to a work-related injury.
5. The Respondent discriminated in violation of Section
8(a)(3) and (1) and Section 8(a)(4) and (1) of the Act: in Octo-
ber 2013 when it terminated Otis Brown’s employment; and
when it failed to pay Hubbard for the hours he would have
worked on August 11, 2013, if he had not left work due to a
work-related injury.
6. The Respondent was not shown to have committed the
other violations alleged in the Complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent, having discriminatorily
discharged Brown, must offer him reinstatement and make him
whole for any loss of earnings and other benefits resulting from
that discrimination. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). The Respondent shall
file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters and shall also
compensate Brown for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering
periods longer than 1 year, Latino Express, Inc., 359 NLRB
518 (2012). In addition, the Respondent must make Hubbard
whole for the pay he was unlawfully denied on August 11,
2013. Hubbard’s make-whole remedy shall be computed in
accordance with Ogle Protection Service, Inc., 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than with F.
W. Woolworth Co., supra. See Pepsi-America, Inc., 339 NLRB
986 fn. 2 (2003). The Respondent shall also make the ILA
bargaining unit employees whole for any losses in earnings and
other benefits that they suffered as a result of the Respondent’s
unlawful unilateral changes. Such make whole relief shall be
computed in accordance with Ogle Protection Service, supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.33
ORDER
The Respondent, Midwest Terminals of Toledo Internation-
al, Inc., Toledo, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging, denying pay to, or otherwise discriminating
against Otis Brown, Prentis Hubbard, or any other any employ-
ee for engaging in protected union or concerted activity.
(b) Discharging, denying pay to, or otherwise discriminating
against Otis Brown, Prentis Hubbard, or any employee for par-
ticipating in the Board’s processes.
(c) Threatening any employee for engaging in protected un-
ion or concerted activity, and/or for participating in the Board’s
processes.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the International Long-
shoreman’s Association, Local 1982, AFL–CIO (the Union, the
ILA, or the ILA local), as the exclusive collective-bargaining
representative of employees of the bargaining unit described in
the 2006–2010 collective-bargaining agreement between the
Respondent and the Union.
(b) Rescind the unlawful unilateral change that it has made
since August 2013 to the established past practice regarding the
ILA unit employees’ participation in the transfer of aluminum
at the facility and restore the status quo ante pending the results
of good faith bargaining.

33 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) Rescind the unlawful unilateral changes it has made since
November 2013, by reassigning calcium unloading work from
the ILA unit employees to others outside the unit, and restore
the status quo ante pending the results of good faith bargaining.
(d) Rescind the unlawful unilateral change it has made since
June 23, 2013, by ceasing informal crane training for unit em-
ployees and restore the status quo ante.
(e) Make the ILA unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlawful uni-
lateral changes.
(f) Within 14 days from the date of the Board’s Order, offer
Otis Brown full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(g) Make Otis Brown whole for any loss of earnings and oth-
er benefits suffered as a result of the discrimination against him
in the manner set forth in the remedy section of the decision.
(h) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify Otis Brown in writing that this
has been done and that the discharge will not be used against
him in any way.
(i) Make Prentis Hubbard whole for any loss of earnings and
other benefits suffered as a result of its unlawful denial of wag-
es to him in the manner set forth in the remedy section of the
decision.
(j) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(k) Within 14 days after service by the Region, post at its fa-
cility in Toledo, Ohio, copies of the attached notice marked
“Appendix.”34 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its

34 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 23, 2013.
(l) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. January 21, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
Otis Brown, Prentis Hubbard, or any other employee for engag-
ing in protected union or concerted activity.
WE WILL NOT discharge or otherwise discriminate against
Otis Brown, Prentis Hubbard, or any other employee for partic-
ipating in the Board’s processes.
WE WILL NOT threaten you for engaging in protected union or
concerted activity, and/or for participating in the Board’s pro-
cesses.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, before making any changes to the wages, hours, or
other terms and conditions of employment of employees in the
bargaining unit represented by the International Longshore-
man’s Association, Local 1982, AFL–CIO (the Union, the ILA,
or the ILA local), notify and, on request, bargain with the Un-
ion as the exclusive collective bargaining representative of
bargaining unit employees.
WE WILL rescind the unlawful unilateral change that we
made since August 2013 by changing the established practice
regarding the participation of ILA unit employees in the trans-
fer of aluminum at the facility and restore the status quo ante
pending the results of good-faith bargaining.
WE WILL rescind the unlawful unilateral change that we
made since November 2013 by reassigning calcium unloading
work from the ILA unit employees to others outside the unit
and restore the status quo ante pending the results of good-faith
bargaining.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL, INC. 37
WE WILL rescind the unlawful unilateral change we made
since June 23, 2013, by ceasing informal crane training for ILA
unit employees.
WE WILL make you whole for any loss of earnings and other
benefits suffered as a result of the unlawful unilateral changes.
WE WILL, within 14 days from the date of this Order, offer
Otis Brown full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Otis Brown whole for any loss of earnings
and other benefits resulting from his discharge, less any net
interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Otis Brown for the adverse tax conse-
quences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Otis
Brown, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not
be used against him in any way.
WE WILL make Prentis Hubbard whole for any loss of earn-
ings and other benefits suffered as a result of our discrimination
against him.
MIDWEST TERMINALS OF TOLEDO INTERNATIONAL INC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/08-CA-119493 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940