Nexeo Solutions

National Labor Relations Board - Administrative Judge Opinions

Aug 30, 2012

20-CA-035519 (N.L.R.B. Aug. 30, 2012)

JD(SF)–42–12
Willow Springs, IL and Fairfield, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
NEXEO SOLUTIONS, LLC
and Cases 13-CA-46694
13-CA-62072
TRUCK DRIVERS, OIL DRIVERS, 20-CA-35519
FILLING STATION AND PLATFORM
WORKERS’ UNION, LOCAL NO. 705, AN
AFFILIATE OF THE INTERNATIONAL
BROTHERHOOD OF TEMSTERS
and
BROTHERHOOD OF TEAMSTERS AND
AUTO TRUCK DRIVERS, LOCAL NO. 70
OF ALAMEDA COUNTY, AFFILIATED
WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
J. Edward Castillo, R. Jason Patterson, and
Richard J. McPalmer Esqs., for the General Counsel.
David A. Kadela and Adam C. Wit, Esqs.
(Littler Mendelson, P.C.), of Columbus, Ohio,
for the Respondent.
Thomas D. Allison and Jason McCaughy, Esqs.
(Allison, Slutsky & Kennedy, P.C.), of
Chicago, Illinois, for Charging Party Local 705.
David A. Rosenfeld, Esq.
(Wineberg, Roger, and Rosenfeld), of Alameda,
California, for Charging Party Local 70.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case presents a close issue of
whether Nexeo Solutions, LLC (Nexeo) is a “perfectly clear” successor employer to Ashland,
Inc (Ashland) under NLRB v. Burns Security Services, 406 U.S. 272 (1972). The synopsis is: On
JD(SF)–42–12
2
November 5, 2010, Nexeo and Ashland entered into an agreement whereby Ashland agreed to
sell its distribution centers to Nexeo; that deal closed on April 1, 2011 and Nexeo takes over.
That agreement required Nexeo to offer employment to all Nexeo employees in the same
position, same base wage rate, and benefits comparable in the aggregate to Ashland’s. These
details became well known. On February 17, 2011, Nexeo informs Ashland’s union-represented5
employees of the details of their initial terms of employment with Nexeo. All the employees
accept the offers and seamlessly transition from Ashland to Nexeo on April 1. Did Nexeo
violate Section 8(a)(5) by unilaterally setting the initial employment terms on February 17 and
implementing them on April 1?
10
Cases 13-CA-46694 and 13-CA62072 were tried in Chicago, Illinois, on April 2-4, 2012.,
the Truck Drivers, Oil Drivers, Filling Station and Platform Workers’ Union, Local No. 705, an
affiliate of the International Brotherhood of Teamsters (Local 705) filed the charges in those
cases on April 7 and August 3, 2011, respectively1 and the General Counsel issued the
consolidated complaint on November 30, 2011. That complaint as amended alleges that Nexeo, 15
as a “perfectly clear” successor employer to Ashland, violated Section 8(a)(5) by unilaterally
implementing changes in initial terms and conditions of employment of employees and by
delaying giving Local 705 certain information that Local 705 had requested. Nexeo filed a
timely answer that admitted the allegations in the complaint concerning the filing and service of
the charges, interstate commerce and jurisdiction, that it is a successor (but denied that is a 20
perfectly clear successor) to Ashland, Inc. (Ashland), labor organization status, agency and
supervisory status, appropriate unit and that Local 705 is the 9(a) representative of that unit of
employees. Nexeo admitted that it made some, but not all, of the changes in working conditions;
it denies it made those changes without first bargaining with the Local 705. Finally, Nexeo
denies that it unlawfully delayed giving information to Local 705.225
Case 20-CA-35519 was tried in San Francisco, California, on May 7 and 8, 2012. The
Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 of Alameda County, affiliated
with the International Brotherhood of Teamsters (Local 70) filed the charge on April 11 and the
complaint issued on November 30. That complaint as amended alleges that Nexeo violated 30
Section 8(a)(5) by making certain changes in working conditions of employees on April 1 and
making other changes on April 4. Nexeo filed a timely answer that admitted the allegations in
the complaint concerning the filing and service of the charge, interstate commerce and
jurisdiction, Local 70’s labor organization status, appropriate unit, and Local 70’s 9(a) status;
Nexeo also admitted that it is a successor employer to Ashland. Nexeo denied it had made 35
certain changes and admitted that it made others; it denied it had violated the Act.
40

1 All dates are in 2011 unless otherwise indicated.
2 The General Counsel sought injunctive relief under Sec. 10(j). On June 28, 2012, U.S. District
Court Judge John W. Darrah denied the request.
JD(SF)–42–12
3
On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Nexeo, Local 705, and Local 70, I
make the following.
FINDINGS OF FACT5
I. JURISDICTION
Nexeo a corporation, has been engaged in the business of connecting producers and
customers of chemicals, plastics, composites and environmental services; it has many facilities, 10
including facilities in Willow Springs, Illinois, and Fairfield, California, where, based on a
projection, it will annually purchase and receive at those facilities goods valued in excess of
$50,000 directly from outside those States. Nexeo admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Local
705 and Local 70 are each a labor organization within the meaning of Section 2(5) of the Act. 15
II. ALLEGED UNFAIR LABOR PRACTICES
A. Purchase and Sale
20
On November 5, 2010, Nexeo4 agreed to purchase certain assets from Ashland, including
the distribution centers in Fairfield, California, and Willow Springs, Illinois, for nearly $1
billion. Local 705 had represented a unit of employees5 at Ashland’s distribution center in
Willow Springs for about 20 years; at the time of the hearing there were about 32 employees in
that unit. Local 70 had represented a unit of employees6 at Ashland’s distribution center located 25
in Fairmont for about 18 years; at the time of the hearing there were about 20 employees in this
unit.
In the agreement of purchase and sale (APS) Nexeo promised as follows:
30
Section 7.5(b)(i): Continuation of Employment

3 The General Counsel’s unopposed motion, dated June 26, 2012, to correct the record by substituting
accurate versions of GC Exhs. 48, 51, and 52 is granted. The documents attached to that motion are
received into evidence and replace those earlier entered into the record.
Likewise, Local 70’s unopposed motion to correct the transcript is granted. L. 9 of p. 1030 of the
transcript is corrected to read as follows “Q And prior to that meeting had you learned from any source
that”
4 Its name at the time was TPG Accolade, LLC, but it later transitioned into Nexeo.
5 That unit is:
Drivers employed by Ashland at its facility located in Willow Springs, IL, but excluding all guards
and supervisors as defined in the Act.
6 That unit is:
Warehouse leads, drivers, drivers/material handlers and material handlers employed by the Employer
at its plant located at 2461 Crocker Circle and its leased warehouse space located at 2200 Huntington
Road, Suite A in Fairfield, California; but excluding all other employees, including all sales
personnel, office clerical employees, professional employees, technical employees, guards and
supervisors, as defined in or under the National Labor Relations Act.
JD(SF)–42–12
4
Where applicable Law does not provide for the transfer of employment of any Employee
… Buyer shall … make offers of at-will … employment … to be effective as of the
Closing …to all such Employees.
Section 7.5(c): Offers of Employment.5
Buyer shall . . . make offers of at-will . . . employment to the Employees … at least thirty
(30) days prior to the Closing Date (or such longer period as required by ... the terms of
any Union Contract), with such employment to be effective as of the Closing . . . Any
such offer of employment shall be for a position that is comparable to the type of position
held by such Employee immediately prior to the Closing Date and shall be on terms and 10
conditions sufficient to avoid statutory, contractual, common law or other severance
obligations . . .
Section 7.5(d): Continuation of Compensation and Benefits
For a period of eighteen (18) months after the Closing Date … Buyer shall … provide to 15
each Transferred Employee (i) a base salary or wages no less favorable than those
provided immediately prior to the Closing Date and (ii) other employee benefits, variable
pay, incentive or bonus opportunities under plans, programs, and arrangements that are
substantially comparable in the aggregate to those provided by Ashland … as expected to
be in effect as of on January 1, 2011 . . . .20
Section 7.5(f): Severance Obligations
Ashland and Buyer intend that the transactions contemplated by this Agreement shall not
result in the severance of employment of any Employee prior to or upon the
consummation of the transaction contemplated hereby and that the Employees shall have 25
continuous and uninterrupted employment immediately before and immediately after the
Closing Date, and Ashland and Buyer shall comply with any requirements under existing
law to ensure the same.
Section 7.5(n): Employee Consultations30
Buyer . . . shall fully comply with all of is . . . obligations (however arising) to inform and
consult with, and in respect of, the Employees of the Business, whether the obligation
arises under a Union Contract or applicable law. To the extent such communications
occur in writing, Buyer . . . will provide a copy to Ashland at the time said
communications occur and will provide Ashland any written responses to said 35
communications after the time they are received.
Section 7.5(o): Union Contracts
From and after the Closing, Buyer shall … recognize any collective bargaining units
representing the Transferred Employees that are recognized as of immediately prior to the 40
Closing.
Section 11.7 Public Disclosure
No communication, release, or announcement to the public or to employees . . . shall be
issued or made by any party without the prior consent of the other party . . . ; provided, 45
however, that each of the parties may make internal announcements to their respective
employees that are consistent with the parties’ prior public disclosures concerning the
Contemplated Transactions … .
JD(SF)–42–12
5
A schedule attached to the APS listed the names of all the employees in each unit; Nexeo was
obligated to retain those employees.
Ashland then announced the sale to the public and to its employees. It also provided its 5
employees with details concerning their future employment with Nexeo in a manner consistent
with the terms of the APS described above. For example, Ashland posted questions and answers
about the sale that included the following:
Does [Nexeo] anticipate any layoffs as a result of the transaction?10
Broadly speaking, [Nexeo’s] intent is to retain Ashland’s employees. Ashland
Distribution people … will continue to work from their current locations and perform
similar roles and functions.
Will Ashland Distribution’s current management team remain with the business?15
Yes . . . .
Does [Nexeo] anticipate any changes to compensation and/or benefits?
Under the terms of the agreement, for at least 18 months following closing, [Nexeo] is
required to provide, to each transferred employee, base salary and wages that are no less 20
favorable than those provided prior to closing; and other employee benefits that are
comparable in the aggregate to compensation and benefits as of January 1, 2011.
Many other documents from Ashland that were shared with Nexeo made similar assurances to
the future Nexeo employees. Those documents reveal that Nexeo made every effort consistent 25
with the APS to retain the existing work forces as part of the transition from Ashland. On the
other hand, however, the employees and the Unions were never misled into believing that their
benefits would be identical as opposed to comparable in the aggregate to the ones they enjoyed
at Ashland. Rather, the communications made clear that the benefits would be different and the
employees would be informed of them as soon as they were developed. Indeed, both Local 70 30
and Local705 became aware of the terms of the APS as they related to worker retention and
compensation issues; both accurately communicated to their members that Nexeo planed to
retain all the employees under a benefit scheme that would be comparable in the aggregate.
During the hearing I sustained hearsay objections to statements made by Ashland 35
managers concerning the sale during times at which it was clear that those managers were not yet
agents of Nexeo. In its brief Local 705 asks me to reconsider those rulings. I deny that request.
In particular, I do not consider for the truth of the matter asserted any conversations between
Local 705 officials and Ashland managers concerning the consequences of the sale. In addition
to the hearsay nature of those conversations, Local 705 had a copy of the APS and knew of its 40
content but thereafter seemed to repeatedly question Ashland managers in an effort to get them
JD(SF)–42–12
6
to say something slightly different. In any event, as the General Counsel’s brief discloses in
detail, the written communications made by Ashland concerning the sale closely track the
communications made by Nexeo itself.7
On April 1 Nexeo and Ashland closed the deal and Nexeo began operating the facilities it 5
had purchased. As explained below, Nexeo offered employment to all unit employees at both
facilities involved in this case and operated those facilities largely with former Ashland
managers and supervisors. Their employment continued essentially uninterrupted from Ashland
to Nexeo.
10
B. Willow Springs, Illinois
The complaint alleges that on April 1 Nexeo violated Section 8(a)(5) by:
 No longer providing coverage of the unit employees under Local 705’s pension plan 15
but instead placing them under Nexeo’s retirement plan.
 No longer covering employees under Local 705’s health and welfare fund but instead
placing them in Nexeo’s health insurance plan.
 Eliminating the guarantees employees previously had of 8 hours pay for each day
worked and 40 hours pay for each week worked.20
 Reducing employees’ vacation pay from 50 hours to 40 hours for each week of
vacation taken.
The complaint also alleges that Nexeo violated Section 8(a)(5) by delaying giving Local 705 the
following information:25
 Summary plan description for Nexeo’s health insurance plan covering unit
employees.
 Summary plan description for Nexeo’s 401(k) plan covering unit employees.
 Plan document for the 401(k) plan covering unit employees.30
The unit employees had been covered by collective-bargaining agreements that provided
for a multiemployer International Brotherhood of Teamsters Local 705 Pension Fund. Under
that plan employees could collect $2500 per month after 25 years of participation in the fund,
regardless of age. The employees could continue to work after 25 years and thereby collect and 35
additional $100 per month for each additional year.
On February 15 Nexeo met with Local 705. Present at the meeting for Nexeo were John
Hollinshead, labor relations consultant, and Brian Brockson, Nexeo’s vice president of operation
and formerly Ashland’s logistics director. Neil Messino, contract administrator, Rick Rowe, 40

7 The General Counsel and Local 70 both would have like me to have continued with the hearing in
the case. I denied the General Counsel request because the additional evidence he sought to offer was
either covered by my hearsay rulings or was duplicative of information already in the large record in this
case. Local 70 complains when I cut off its effort to prolong this case so it could go on a fishing
expedition for subpoenaed documents. I affirm both rulings. As the General Counsel has admitted in
various filings and on the record, both Ashland and Nexeo have turned over many bankers boxes of
subpoenaed materials.
JD(SF)–42–12
7
business agent, and Tom Allison, attorney, were present for Local 705. Hollinshead informed
Local 705 that Nexeo intended to send offers of employment to all the employees in the next few
days and that the offers would set initial terms of employment for those employees. Hollinshead
explained the Nexeo had problems with Local 705’s pension plan; he described that plan as
having a withdrawal liability of about $9 million . Local 705 disputed that assertion. 5
Hollinshead said that Nexeo would place the employees in its 401(k) retirement plan instead of
the Local 705 pension plan. Nexeo’s plan, unlike the Local 705 plan, required employee
contributions. Hollinshead pointed to a study that it had commissioned to compare the two
plans. According to that study only 4of the 32 unit employees would suffer as a result of the
conversion; Hollinshead then explained that Nexeo would pay those four employees the amount 10
money it thought represented the shortfall that would result from the change. Local 705
challenged that assertion, contending among other things that Nexeo only calculated the time the
employees had spent with Ashland as opposed to the time each employee had been covered by
the Local 705 plan and that Nexeo contemplated that the employees under its plan would invest
the money and earn a 7.5 percent-annual rate of return as they continued to work until age 65. 15
Hollinshead said that Nexeo also wanted the unit employees to be covered by Nexeo health plan
instead of Local 705’s plan, but that issue would not be a “deal breaker.” Local 705 asked for
Nexeo’s summary plan documents for its 401(k) and health insurance plans, and Hollinshead
agreed to provide them. Hollinshead gave Local 705 a copy of the letter it planned to send to the
employees. Hollinshead said that Nexeo would recognize Local 705 as soon as a majority of 20
employees had accepted the offer of employment. After a caucus, Local 705 indicated that it did
not agree that Nexeo could make the changes in the terms and conditions of employment of the
unit employees.
That same day Messino sent Hollinshead the following message:25
I am following up our meeting today concerning Nexeo Solutions’ purchase of Ashland
Distribution. We appreciate the fact that Nexeo intends to retain all of the current
bargaining unit employees and recognize Local 705 as their bargaining agent. As we
advised you, Local 705, IBT, does not believe that Nexeo can unilaterally eliminate the 30
employees’ pension and health insurance plans, and we will take whatever action is
necessary to support that position. In that regard, we told you that the employees’
acceptance of employment from Nexeo is without prejudice to our position, and does not
constitute a waiver by the Union or the employees of our position that these terms cannot
be unilaterally changed. You stated that the Company understands that.35
At the same time, we recognize that pensions and health insurance are mandatory
bargaining subjects, and we are prepared to discuss a new contract with Nexeo, including
Nexeo’s desire to move these employees from the Local 705 pension plan into Nexeo
defines contribution plans while making employees whole for whatever losses they suffer
as a result of that move. We are prepared to begin these negotiations as soon as possible, 40
in the hope that agreement on the new contract could be reached before the Company’s
current March 31, 2011, closing date.
In that connection, we have requested (1) summary plan description of the current health
insurance plans, including retiree insurance, covering bargaining unit employees; (2)
summary plan descriptions of the pension plans into which the Company wished to move 45
bargaining unit employees; and (3) the Company’s analyses of the impact on bargaining
unit employees of their movement from the Local 705 plans into the Company’s
JD(SF)–42–12
8
proposed plans and the assumptions used by the Company in making these analyses. We
need this information in order to bargain about the Company’s proposals.
On February 17 Nexeo sent the offers of employment to the employees. The letters read
as follows:5
Re: Contingent Offer of Employment
Dear [Name]:
On behalf of Nexeo Solutions, LLC ("Nexeo Solutions"), it is my pleasure to extend the
following offer of employment to you. This offer is contingent upon the successful 10
closing of Nexeo Solutions' purchase of the assets of Ashland Distribution, your
remaining employed by Ashland until the closing and your completing our new hire
paperwork, It is made under the terms and conditions that follow.
Our goal is to make the transition as smooth as possible. Toward that end, if you accept
this offer:15
• Your employment with Nexeo Solutions will begin as soon as the sale closes;
• Your position will be the same as your position with Ashland immediately prior to
closing;
• Your base rate of pay will be the same as your base rate of pay with Ashland
immediately prior to closing;20
• You will be eligible for employee benefits under plans and programs that are
comparable in the aggregate to plans and programs sponsored by Ashland immediately
prior to closing;
• You will be provided more detailed information on the steps that will be taken to enroll
you in employee benefits prior to close; and25
• Nexeo Solutions will credit your service with Ashland for benefit-related purposes, to
the extent such service was recognized under comparable benefit plans and programs
sponsored by Ashland.
Nexeo Solutions benefit plans are structured to be similar to those that Ashland provides
generally to its employees. A summary of those plans is attached to this letter for your 30
review.
Ashland employment policies will terminate when the sale closes. To the extent
reasonably possible under our structure, Nexeo Solutions employment policies will
generally mirror those policies. We are not, however, adopting any existing practices that
are inconsistent with the express terms of our policies. If you wish to review the policies 35
that we have prepared to date, you can obtain them by contacting the HR Service Center.
Once an internal website is established, we will post our policies there.
We are aware that you have union representation as an employee of Ashland. As we
discussed with your business agent earlier this week, before Nexeo Solutions can
recognize the union as your representative, there is a technical legal requirement that has 40
to be satisfied. The requirement is that a majority of our employees in the unit in which
you work come from the current Ashland bargaining unit. Accordingly, once we know
that a majority of employees from the Ashland bargaining unit has accepted our offer, we
will be able to immediately recognize the union as your representative. Once recognition
is secured, Nexeo Solutions will also be able to begin contract negotiations with the 45
union.
In extending this offer to you, we think you should know that Nexeo Solutions has not
agreed to assume any of Ashland's collective bargaining agreements. We have also
JD(SF)–42–12
9
chosen not to adopt, as initial terms and conditions of employment, any of the provisions
contained in any current or expired collective bargaining agreement to which Ashland is
a party. Among other things, what that means is that if you accept this offer, you will not,
when you become a Nexeo Solutions employee, participate in either the multi-employer
pension plan or the multi-employer health and welfare plan in which you participate as an 5
Ashland employee. Instead, you will be covered at the outset of your employment by
Nexeo Solutions' 401 (k) and group health plans.
To accept this offer, it is necessary for you to sign the original copy of this letter and
return it to us in the enclosed envelope. While it is our hope that you respond as soon as
possible, we will hold this offer open to you for 10 days from the date of this letter.10
We hope that you and all of your coworkers accept our offer of employment. We look
forward to your bringing your skills and experience to our team, and beginning what we
hope will be a long and rewarding relationship.
Very truly yours,
David Bradley15
CEO Nexeo Solutions, LLC
I accept this contingent offer of employment under the terms and conditions set forth
above.
20
Signature Date
Attached was the following8:
Your New Benefits at a Glance25
. At Nexeo Solutions, LLC, we remain committed to providing the coverage and support
necessary to protect the health and overall well-being of our employees and their families,
Medical Coverage
- Anthem HSA 1500 with optional Health Savings Account (HSA)
- HSA- lf you enroll in the HSA 1500 medical plan, you can establish an HSA and30
contribute pre-tax pay to build savings for future health care costs, including retiree
health care costs
- Healthy Rewards - Nexeo Solutions adds to your HSA If you participate in the Healthy
Rewards program. You can earn up to $850 in Healthy Rewards from Nexeo Solutions
(up to $1,700 for you and your covered spouse or domestic partner) when you35
complete certain requirements (Note: You will be eligible to receive Healthy Rewards to
the extent you have not already earned them at Ashland)
Flexible Spending Accounts (FSA)
- Health Care FSA
- DependentCare FSA (day care for your d dependents while you work)40
Dental Coverage
- Basic Dental Plan
- Enhanced Dental Plan
Vision Coverage
- EyeMed Vision Cost-Assistance Plan45
Life Insurance
- The company provides coverage for you of in the amount of two times pay ($500,000
maximum)
- Buy supplemental coverage for you up to eight times pay ($1,200,000 maximum)

8 A slightly different version was sent to employees with more than 10 years service.
JD(SF)–42–12
10
- Buy coverage for your spouse or domestic partner up to $100,000
- Buy coverage for your child(ran) up to $10,000
Basic and Voluntary Accidental Death &Dismemberment (AD&D) Insurance
- The company provides coverage for you in the amount of two times pay ($500,000
maximum)5
- Buy additional coverage up to $500,000 (maximum of 10 times pay)
- Buy coverage for you and your family
Long-Term Disability (L TO) coverage
- The company covers you for 50% of pay
- Buy supplemental LTD coverage to cover an additional 10%10
Vacation pay
- The vacation policy will be identical to the current Ashland policy
- Buy or sell up to 5 vacation days
- Initial Nexeo Solutions account balances will match what you had at Ashland*
Sick pay15
- The sick pay policy will be identical to the current Ashland policy Initial Nexeo Solutions
account balances will match what you had at Ashland*
Holidays
- The holiday policy will be identical to the current Ashland policy.
- InitialNexeo Solutions floating holiday account balances will match what you had at20
Ashland* "
Adoption Assistance Program
- Nexeo Solutions will provide the same level of benefit as Ashland's current adoption
assistance program
Additional benefit options25
- Auto and home Insurance will be available
Retirement
- Matching contributions of $1 for each $1 you contribute to the Employee Savings
Planup to 4% of pay- company contributions begin after one year of service**
- Company Performance Contribution up to 4%of pay annually30
Company Contribution to the Employee Savings Plan based on age as of the first
day of the plan year:
Age each year Contribution
<45 years 5.0%
45- 54 years 10.0%35
55+ years 15.0%
If you have questions about your benefits or need additional information, don't hesitate to contact
the HR Service Center at ... ..
This is a summary of the benefits currently offered by Nexeo Solutions. You will be eligible to participate in these
benefits on the first day of your employment.40
:+< Initial Nexeo Solutions account balances will match what you had at Ashland at the time your employment with
Ashland ends.
* · ~ Nex eo Solutions will credit your service with Ashland for this program.
All of the employees signed and returned the letters to Nexeo. However, upon advice of Local 45
705, they added the words “under protest” next to their signatures. Later, after discussions
between Local 705 and Nexeo, the employees again signed the letters, this time without adding
anything more to them
On February 23 Local 705 sent Nexeo a message demanding recognition, reiterating its 50
position that Nexeo could not unilaterally eliminate the Local 705 pension and health insurance
plans: Local 705 also again requested that the summary plan documents be provided prior to
their next meeting, then set for March 23. On March 2 Nexeo replied with a detailed description
of why it felt it could unilaterally implement initial terms and conditions of employment. The
JD(SF)–42–12
11
reply also stated, “This explanation also captures the reason why we have not responded to the
information requests contained in your letter.” On March 7 Local 705 replied with its position
and again requested the information. On March 12 Hollinshead informed Messino:
I know you have requested and I am pushing to have a draft SPD on the new 401(k) plan 5
fairly soon. Our challenge is this is a brand new plan with very unique matching
components and is not one we can just replicate similar to Ashland. I have mentioned
before that we had PwC (PricewaterhouseCoopers, LLP) prepare some estimates on how
the employees might fare switching from [Local 705’s plan] to our 401(k) plan. To that
end I am enclosing what is referenced as 705 Heatmaps for your review.10
The parties met on March 23; at that time Nexeo had not yet given Local 705 the
information it had requested concerning the 401(k) and health insurance plans. Present at this
meeting for Local 705, among others, were Allison and Messino. Present for Nexeo were
Hollinshead, Brockson, David Kadela, attorney, and Tony Kuk, Nexeo’s and formerly Ashland’s 15
plant manager. Local 705 gave Nexeo a written analysis of what the employees lose under if
they were switched to Nexeo’s retirement plan. Local 705 also explained how employees could
lose retiree health insurance coverage. In response Nexeo again reassured Local 705 that it
would make employees whole for any loss by writing them a check for the shortfall and place the
money in the 401(k) fund for the employee. Nexeo expressed concerns about potential 20
withdrawal liabilities if it accepted the Local 705 pension plan but Local 705 argued that under
the terms of the purchase agreement Ashland was obligated to bear those costs. At this meeting
the parties also exchange initial contract proposals; each used the old Local 705 –Ashland
contract as a template. Significantly, neither party proposed any changes to those provisions
concerning overtime pay, daily and weekly guarantees of pay, and vacation pay concerning 25
employees receiving 50 hours of pay for each taken vacation week. The parties agreed to review
the proposed contracts, talk by conference call on March 28 and then meet again on March 31.
Prior to the conference call Nexeo sent Local 705 a revised estimate concerning how the
employees would fare under its retirement plan as opposed to Local 705’s plan. Later Nexeo 30
sent Local 705 a revised contract proposal. The revised proposal, among other things, gave
Local 705 two options to choose from:
(a) Option 1: Nexeo Benefit Plans and Policies
(b) Option 2: Nexeo healthcare (medical, dental, vision and flexible spending) and 35
Retirement Plans, and existing vacation, sick pay, funeral leave and jury duty
entitlements, as provided in the Union’s expired collective bargaining agreement with
Ashland.
On March 28 Nexeo and Local 705 had the planned conference call. They reviewed the 40
proposals and reached some tentative agreements, mostly in provisions for which neither party
had suggested changes. They did not review pension or health insurance, leaving that for their
meeting on March 31. After the conference call Hollinshead called Messino. During the course
of that conversation Hollinshead raised the retirement issue and said that he was no longer
authorized to state the Nexeo would make the employees whole for any losses they would suffer 45
by converting to Nexeo’s plan but that he could do something to get the number “closer.”
JD(SF)–42–12
12
The parties met again on March 31. They reviewed the tentative agreements that were
made during the earlier conference call. There was also some discussion of other provisions
such as subcontracting and transfers. But Messino stated that because he still did not have the
SPD for the Nexeo’s health insurance plan he really could not discuss how it compared to Local
705’s plan. Hollinshead relied that he would get that document for Local 705 and indicated that 5
Nexeo’s main concern was the retirement plan and that Nexeo could look into Local 705’s heath
insurance plan and that he felt it was an issue that they could resolve. Hollinshead then
announced that at midnight Nexeo was going to place the employees under its retirement and
health insurance plans and remove them from Local 705’s plans. Messino asked whether Nexeo
felt that negotiations were at impasse and Hollinshead conceded that they were not, but asserted 10
that Nexeo had the right to unilaterally set initial terms for the employees. Messino stated his
disagreement and said that Local 705 still needed the plans documents from Nexeo.9
Nexeo admits that on April 1 it did not make contributions to the Local 705’s Health and
Welfare fund but instead moved its employees to Nexeo’s health insurance plan. Nexeo also 15
admits that on April 1 it did not make contributions to the International Brotherhood of
Teamsters Local 705 Pension Fund and moved employees to Nexeo’s 401(k) plan. In addition,
on April 1 Tony Kuk, Nexeo’s plant manager, announced to the employees that they would no
longer receive a daily guarantee of 8 hours pay for each workday and a weekly guarantee of 40
hours pay for each workweek. He also changed the existing overtime policy by telling 20
employees that they would only receive overtime pay after working 40 hours per week instead of
receiving overtime pay after working 8 hours per day. Finally, he told employees that they
would no longer receive 50 hours pay for each vacation taken but would instead receive only 40
hours pay. Nexeo stipulated that it actually made the last two announced changes. As to the
first, in March 2012, an employee was sent home early but apparently was not paid his 8 hours; 25
this is the only time this issue has arisen since the April 1 announcement.
The parties were scheduled to resume bargaining on June 1. On May 25 Messino sent
Hollinshead a message requesting “a copy of the 401(k) plan document.” The next day
Hollinshead replied, indicating that the “summary plan description document is still not 30
finalized” and that “it might take a while for the SPD on the 401(k).” On June 2 Messino again
requested a copy of “the 401(k) document” and Hollinshead replied that same day that:
Fidelity is providing the draft SPD to [Nexeo] next week. Once legal and HR have
reviewed and approved it, it should be ready in the next few weeks. I will provide as 35
soon as it is available.
On June 4 Messino explained that Local 705 was requesting both the summary plan description
of Nexeo’s 401(k) plan and the 401(k) plan that Nexeo was required to have under Section
402(a)(1) of ERISA. Obviously, until that point Hollinshead felt that Local 705 had only been 40
asking again for the SPD and not something new. On July 15 after it was finally completed and
reviewed, Nexeo gave Local 705 a copy the summary plan description for Nexeo’s 401(k) plan.
On August 11 Nexeo gave Local 705 a copy of the ERISA plan document for the 401(k) plan.

9 The foregoing facts are based on documentary evidence and a composite of the credible testimony
of Messino and Hollinshead. To the extent that there were differences in their testimony, I have credited
Messino’s testimony; his demeanor was convincing, his recollection sharp, and overall he seemed in
command of what happened during the meetings and conversations.
JD(SF)–42–12
13
And it was not until October 19 that Nexeo gave Local 705 a copy the summary plan description
for Nexeo’s health insurance plan.
C. Fairfield, California
5
The complaint alleges that Nexeo violated Section 8(a)(5) by:
 No longer providing coverage of the unit employees under Local 70’s pension plan
but instead placing them under Nexeo’s retirement plan.
 No longer covering employees under Local 705’s health and welfare fund but instead 10
placing them in Nexeo’s health insurance plan.
 Abandoning the practice of using seniority to assign driving routes.
 Abandoning the practices of using seniority to allocate unpaid lay-off days.
Local 70 has represented a unit of employees10 at Ashland’s distribution center located in 15
Fairfield, California, for about 18 years; at the time of the hearing there were about 20 employees
in this unit. Employees were covered Local 70’s Western Conference of Teamsters Pension
Trust that provided employees with defined benefits upon retirement. In general, that plan
allowed employees to retire at any age and receive full benefits when an employee’s years of
service added to the employee’s age amounted to 80. This plan was funded entirely by employer 20
contributions; employees made no contribution to the plan.
On February 16 Nexeo met with Local 70. Present for Nexeo were Paul Fusco, Nexeo’s
human resources business partner senior and former Ashland human resources business partner,
Jack Brewer, regional manager, and David Kadela, attorney. Present for Local 70 were Robert 25
Aiello, business agent, and Dominic Chiovare, Local 70 president. During the meeting Nexeo
stated it intent to offer all the unit employees employment at their current positions and at the
same base salary. Nexeo then showed Local 70 a copy of a generic offer of employment letter
that it intended to send the employees; it was identical to the offer letter that Nexeo had given to
Local 705 a day earlier. Nexeo explained that after a majority of employees accepted the offer 30
Nexeo would then recognize Local 70. Nexeo went on to explain that the employees would be
covered by a Nexeo health plan and retirement plan instead of the Local 70 plans that they had
under Ashland. The next day Nexeo sent all the unit employees the letter; the employees then
accepted the offers and on February 26 Nexeo recognized Local 70.
35
The parties met for bargaining on March 22. Walt Penz, senior administrator for the
Western Conference of Teamsters Pension Trust, joined Aiello and Chiovare for Local 70; Fusco
and Brewer were present for Nexeo. Nexeo and Local 70 exchanged contract proposals; both
used the old Local 70/Ashland contract as a template. Discussion quickly focused on the pension
issue. Local 70 explained its Western Conference of Teamsters Pension Trust and Nexeo 40
explained its 401(k) plan. Nexeo gave Local 70 its comparison of the plans and how it proposed

10 That unit is:
Warehouse leads, drivers, drivers/material handlers and material handlers employed by the
Employer at its plant located at 2461 Crocker Circle and its leased warehouse space located at
2200 Huntington Road, Suite A in Fairfield, California; but excluding all other employees,
including all sales personnel, office clerical employees, professional employees, technical
employees, guards and supervisors, as defined in or under the National Labor Relations Act.
JD(SF)–42–12
14
to make up the difference to employees for the shortcomings of its plan. The parties met again
the next day; Ernie Carrion, shop steward, replaced Benz for Local 70. They reached tentative
agreements on some noneconomic issues.
Nexeo and Local 70 met again on March 29. They continued their review of 5
noneconomic terms of the contract proposals. After that Local 70 gave Nexeo a revised
economic proposal that included a health and welfare plan different from the one set forth in
latest Ashland contract. The parties discussed economics. Either at the bargaining session that
day or via email the next day Nexeo made a wage proposal. At some point during the meeting
Local 70 gave Nexeo a letter indicating that it believed Nexeo was a “perfectly clear successor’ 10
with attendant obligations. Nexeo expressed its disagreement. Nexeo announced that if there
was no agreement reached by April 1 it would implement the changes set forth in the offer of
employment letter. No party made any declaration of impasse.11 Nexeo and Local 70 continued
to exchange messages and information on March 30 and 31. On April 1 Nexeo began covering
the unit employees under its 401(k) retirement plan and did not make payments to Local 70’s 15
Western Conference of Teamsters Pension Trust; it also began covering employees under its own
health insurance plan and not under Local 70’s health insurance fund.
On April 412 Nexeo assigned routes to drivers based on the same seniority-based systems
that had been used by Ashland. More specifically, drivers were called in order of seniority and 20
informed of the routes that were available the next day. The most senior driver selected his
preferred route, then the next senior driver selected from the remaining routes and so on. This
allowed the more senior drivers the flexibility of selecting routes with less heavy traffic and
fewer stops; it also allowed those drivers to select longer routes in the hope of earning overtime
and conversely to select a shorter route on a given day so as to get home earlier for personal 25
reasons. Nexeo never informed Local 70 of its intent to change this practice. However,
beginning on April 5, Nexeo no longer allowed the drivers to select their routes in order of
seniority; rather Nexeo assigned employees to drive routes based on its own perceptions of
efficiency. Discussions ensued between Nexeo and Local 70 concerning this change, and in mid
May Nexeo restored the seniority based route selection practice that had previously existed. 30
Under Ashland, if there was not enough driving work for the drivers then the least senior
driver was given the option of performing warehouse work for the day. Driver Gary Robbins
was advised that he would not work on April 21 because there was not route for him. He was
not the least senior driver nor was he allowed to perform warehouse work. Similarly, driver 35
Ernie Carrion was advised that he would not work on April 22 because there was no route for
him; he was not given the option to work in the warehouse and was not paid for that day. Local
70 raised these changes with Nexeo as part of the discussions about the route assignment change

11 In its brief Nexeo argues:
The main obstacle that prevented an agreement was each side’s insistence that the other agree to
the retirement plan it had proposed – the Company maintained that it had to have its 401(k) plan,
while the Union insisted that it had to have the union-sponsored plan.
In doing so Nexeo relies on Fusco’s testimony. However, I do not credit that testimony. As the record
indicates it seemed that Fusco was blending in his subjective feelings with what actually occurred and his
testimony was given in response to leading questions; his demeanor was not convincing.
12 Nexeo informed the employees that they would have Friday, April 1, off with pay as it transitioned
to operate the facility.
JD(SF)–42–12
15
described in the preceding paragraph. As with that issue, in mid-May restored the practice to
what it had been under Ashland.
The parties continued to bargain after Nexeo made the changes to the working conditions
of the employees. Nexeo’s October 17 proposal was presented to union members for a vote and 5
they unanimously rejected it.
D. Analysis
This case involves a close question of whether Nexeo is a perfectly clear successor to 10
Ashland and thus was required to bargain first before setting initial terms of employment. In
Burns, supra, the Supreme Court held that a successor employer may unilaterally set initial terms
and conditions of employment even if the employees are representative by a union. The Court
indicated, however:
15
Although a successor employer is ordinarily free to set initial terms on which it will hire
the employees of a predecessor, there will be instances in which it is perfectly clear that
the new employer plans to retain all of the employees in the unit and in which case it will
be appropriate to have him initially consult with the employees’ bargaining representative
before he fixes terms. Id., at 294-95. 20
The General Counsel’s first argument is that Nexeo became a perfectly clear successor by virtue
of the terms of the APS; I alert the reader that this argument largely ignores the Board’s decision
in Spruce-Up Corp., 209 NLRB 194 (1974), enfd. 529 F.2d 516 (4th Cir. 1975); Rather, it
largely focuses on the language used by the Supreme Court in Burns and not on the gloss put on 25
that language by the Board in Spruce Up. I walk through this first argument and give my
conclusions as I go. First I agree with the General Counsel that it was perfectly clear (as a matter
of fact and not as a legal conclusion) that Nexeo planned to retain all the employees in both
units. Nexeo committed itself to do so in the APS; that document repeatedly indicated that
Nexeo was to make offers of employment to “all” employees. 30
In Burns the Supreme Court continued:
In other situations, however, it may not be clear until the successor has hired his full
complement of employee that he has a duty to bargain with a union, since it will not be 35
evident until then that the bargaining representative represents a majority of the
employees in the unit. Id., at 294-95.
I conclude that this case does not involve such a situation. Nexeo was obligated not only to offer
employment to all the unit employees; it also had to offer the employees employment in their 40
same position, with the same base wages, and with a comparable benefit package. There was
little doubt that a majority, if not all, of the employees, would under these conditions accept
employment at Nexeo. This was what those provisions in the APS were designed to accomplish.
This is what Nexeo understood would happen. This is what Local 705 and Local 70 understood
would happen. And this is exactly what happened. Stated differently, Nexeo:45
[E]xpressed its clear intention to staff the facilities with the predecessor’s employees and
to bargain with the employees’ designated representative, thereby securing a skilled and
JD(SF)–42–12
16
experienced workforce and avoiding the uncertainty of attempting to recruit new
employees based unilaterally established employment terms.
Road & Rail Services., 348 NLRB 1160, 1160 (2006).
5
But Nexeo relies on, and the General Counsel ignores in his first argument, Spruce Up.
In Spruce Up the Board held that the employer was free set initial terms of employment because
it was not perfectly clear that it planned to hire all the predecessor’s barbers. The Board
described the critical fact pattern in that case as follows:
10
Although, at the February meeting, Fowler expressed a general willingness to hire the
barbers employed by the former employer, he at the same time indicated that he was
going to be paying different commission rates. Fowler thereby made it clear from the
outset that he intended to set his own initial terms, and that whether or not he would in
fact retain the incumbent barbers would depend upon their willingness to accept those 15
terms. When an employer who has not yet commenced operations announces new terms
prior to or simultaneously with his invitation to the previous work force to accept
employment under those terms, we do not think it can fairly be said that the new
employer "plans to retain all of the employees in the unit," as that phrase was intended by
the Supreme Court. The possibility that the old employees may not enter into an 20
employment relationship with the new employer is a real one, as illustrated by the present
facts. Many of the former employees here did not desire to be employed by the new
employer under the terms set by him-a fact which will often be operative, and which any
new employer must realistically anticipate. Since that is so, it is surely not "perfectly
clear" to either the employer or to us that he can "plan to retain all of the employees in the 25
unit" under such a set of facts.
Id. at 195. As the quote passage indicates, it was unclear whether the barbers would accept
employment under the different compensation scheme the employer was offering. I agree with
Local 705’s argument in its brief that the fact pattern in Spruce Up does not cover the fact pattern 30
in this case. In this case Nexeo was offering employment in the same position, at the same base
rate, and with comparable benefits. But the Board in Spruce Up went on to indicate in dicta that
has since become a holding that the caveat in Burns should be restricted to circumstances in
which the new employer has either actively or by tacit inference, misled employees into
believing they would all be retain without change in their working conditions or at least in 35
circumstances where the new employer failed to clearly announce its announcement to establish
a new set of working conditions prior to making the offer of employment. Spruce Up therefore
makes it clear that we are not to rely on the language used by the Supreme Court in Burns alone;
rather there must be at least a finding that a successor employer misled employees into believing
their working conditions would remain the same. (This is, in fact, the General Counsel’s second 40
argument and I address it below.)
To be sure, as the General Counsel and Local 705 point out, the Board has not
consistently applied Spruce Up in the literal fashion that its language suggests. For example, in
Springfield Transit Management, 281 NLRB 72, 78 (1986), the respondent was required to adopt 45
the collective-bargaining agreement that its predecessor had with a union and hire all of the
predecessor’s employees. The successor instead made what the judge described as a:
JD(SF)–42–12
17
[C]onditional offer-"we'll hire you if you will work on our terms"-is precisely the kind of
ambivalence in which it was not free to engage. Having said, and been required to say,
that it would hire the SSRC office staff, it was then obligated to negotiate their initial
wages, hours, and terms and conditions of employment with the Union.
5
Id. Neither the Board nor the judge mentions Spruce Up and the case does not fit comfortably
with the holding in Spruce Up that, absent some deception, successor employers may unilaterally
set initial terms of employment to the predecessor’s employees. Rather, they seemed to apply a
common sense meaning to the words used by the Supreme Court in Burns. The General
Counsel also cites The Denham Co., 218 NLRB 30, 31 (1975), and 206 NLRB 659, 660 (1973). 10
In that case the respondent was obligated to and informed its predecessor’s employees that it
would retain all of them for at least 30 days. Before hiring them the respondent unilaterally
announced a reduction in pay and benefits as it set initial terms of employment for the
employees. The Board simply applied the unvarnished language from Burns, considered the
totality of the circumstances, and found that the respondent was a perfectly clear successor who 15
could not unilaterally set initial terms of employment. Again, the decision did not turn on
evidence of deception on the part of the respondent.
At the end of the day, however, these cases must be assessed against the longer list of
cases, cited by Nexeo in its brief, where the Board more literally applied the gloss it upon the 20
Burns “perfectly clear” language and instead allowed employers to unilaterally set initial terms
absent some evidence of deception concerning those initial terms. The APS did not purport to
set initial terms of employment; rather, it indicated a framework for a benefit package the details
of which would be determined later. On February 15 and 16 Nexeo announced those details. I
conclude that the General Counsel’s first theory does not support a finding that Nexeo was 25
obligated to bargain first concerning initial terms. Rather, it is for the Board to decide if it
wishes to modify Spruce Up in light of the facts in this case, or whether to revisit that case
entirely. I have attempted to make the necessary findings if it chooses to do so.
The General Counsel’s second theory is that there was a:30
[C]onsistent message streaming that served for several months to allay employees’
concerns by misleading them into believing that Ashland employees would be retained
with essentially no change in their terms and conditions of employment.
35
Therefore, the argument goes, under Spruce Up it became a perfectly clear successor. I reject
this theory. I have concluded above that there was no misleading of employees by Nexeo or by
Ashland. The totality of the messages that were conveyed to the employees and to Local 70 and
Local 705, and by Local 70 and Local 705 to its members, were consistent with the terms of the
APS and advised employees that details of the employment offers would follow. On February 40
15 and 16 Nexeo gave the Local 70 and Local 705 the promised details in the form of the
extremely detailed letters fully described above. These facts serve to distinguish this case from
DuPont Dow Elastomers, LLC, 332 NLRB 1071 (2000), enfd. 296 F.3d 495 (6th Cir. 2002), and
similar cases cited by the General Counsel. In DuPont Dow the respondent indicated that it
would retain all the employees with the same terms and conditions of employment; it only 45
announced changes after it had made those promises and had begun the hiring process. The
General Counsel is correct that had Nexeo told employees that they would receive benefits that
were “substantially equivalent” or “comparable” without a more detailed explanation, it could
JD(SF)–42–12
18
have been a perfectly clear successor because it would not have sufficiently advised employees
of the details of their initial terms. Elf Atochem North America, 339 NLRB 796, 796, 808
(2003). But here Nexeo did, in a timely fashion, provide the employees with specific details
concerning the initial terms.
5
Local 705 and the General Counsel argue that Nexeo “misled” employees and the Union
into believing that they would receive a benefit package that would be comparable in the
aggregate but then were offered initial terms that were not comparable in the aggregate. But
they rely only on the differences in the retirement and health insurance plans. There record does
not allow me to make any assessment as to whether the benefit packages, in their entirety, were 10
comparable in the aggregate. Nor could I comfortably make such an assessment even if the
record was fully developed and substitute my judgment for that of Nexeo or Ashland, the parties
who made that agreement.
I conclude that the General Counsel has not established that Nexeo was obligated to first 15
bargain with Local 705 or Local 70 before it offered employment upon terms it set forth in the
offer of employment letters. It follows that I dismiss the allegations in the complaint that Nexeo
unlawfully moved the employees from the existing retirement and health insurance plans to its
plans.
20
The remaining issues may be resolved in a more summary manner. Nexeo admits that it
is a successor employer to Ashland and that it had an obligation to recognize and bargain with
Local 70 and Local 705 after a majority of unit employees accepted employment. Concerning
the Willow Springs facility the complaint alleges that Nexeo eliminated the guarantees
employees previously had of 8 hours pay for each day worked and 40 hours pay for each week 25
worked, and reduced employees’ vacation pay from 50 hours to 40 hours for each week of
vacation taken. I have concluded above that Nexeo did so, and did so without first giving notice
to Local 705 so as to allow it an opportunity to bargain over those matters. This is unlawful.
NLRB v. Katz, 369 U.S. 736 (1962). Nexeo does not offer a defense to this conduct in its brief. I
note that these changes were not contained in the offer of employment letters and therefore were 30
not part of lawful action taken by Nexeo in setting the initial terms of employment. By
unilaterally eliminating the guarantees employees previously had of 8 hours pay for each day
worked and 40 hours pay for each week worked, and by reducing employees’ vacation pay from
50 hours to 40 hours for each week of vacation taken, Nexeo violated Section 8(a)(5) and (1). At
the Fairfield, California, Nexeo abandoned the practice of using seniority to assign driving routes 35
and abandoned the practices of using seniority to allocate unpaid lay-off days. This was done
without first giving Local 70 notice and an opportunity to bargain about the changes. By
unilaterally abandoning the practice of using seniority to assign driving routes and abandoning
the practice of using seniority to allocate unpaid lay-off days, Nexeo violated Section 8(a)(5) and
(1). Finally, there are the allegations concerning the information requests made by Local 705. 40
An employer must supply a union with requested information that is relevant and useful for the
union to fulfill its obligations to represent the unit employees. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). An employer violates the Act when it unreasonably delays providing a union
with such information. Consolidated Coal Co., 307 NLRB 69 (1992). Three items of
information are at issue. First, on February 15 Local 705 requested a copy of the summary plan 45
document for Nexeo’s 401(k) plan and it repeated its request periodically thereafter. Nexeo did
not provide the information until July 15. However, the evidence shows that during that time
Nexeo was in the process of creating that document. Nexeo explained to Local 705 that it was
JD(SF)–42–12
19
having difficulty creating the document because it was attempting to match the benefits as best
as it could to those of under Local 705’s pension plan. And there is no evidence that Nexeo
dragged its feet in preparing that document in order to delay giving it to the Local 705. I dismiss
this allegation of the complaint. Next, on February 15 Local 705 requested a copy of the
summary plan document for Nexeo’s health insurance plan. Nexeo did not give this to Local 5
705 until October 19, 2011. Nexeo argues that it was not required to give this document to Local
705 until April 1, but it promised to recognize Local 705 at the February 15 meeting and did so
shortly thereafter. Nexeo tries coming at it from the other end, arguing that because Local 705
decided to suspend bargaining after June 1, Nexeo’s obligation to provide the document was
likewise suspended. But Local 705 remained the bargain representative of the employees and 10
the information is the type that is clearly relevant to allow it to function in its representative
capacity whether or not there are ongoing negotiations. In other words there is no excuse for
such a lengthy delay. By unreasonably delaying providing Local 705 with a copy of the
summary plan document describing it health insurance plan, Nexeo violated Section 8(a)(5) and
(1). Finally, on May 25 Local 705 requested a copy of the plan document required by ERISA for 15
its 401(k) plan; Nexeo did not give this document to Local 705 until August 11. In this case
there was some understandable confusion initially that Local 705 was requesting something other
than the summary plan document. But after a week or so this should have become clear to
Nexeo. By unreasonably delaying providing Local 705 with a copy of the plan document for its
401(k) plan, Nexeo again violated Section 8(a)(5) and (1). 20
CONCLUSIONS OF LAW
Respondent has engaged in unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and Section 2(6) and (7) of the Act by25
1. Eliminating the guarantees employees previously had of 8 hours pay for each day
worked and 40 hours pay for each week worked, and by reducing employees’ vacation pay from
50 hours to 40 hours for each week of vacation taken without first giving notice to Local 705 and
allowing it an opportunity to bargain over those matters.30
2. Abandoning the practice of using seniority to assign driving routes and abandoning the
practice of using seniority to allocate unpaid lay-off days without first giving notice to Local 70
and allowing it an opportunity to bargain over those matters.
35
3. By unreasonably delaying providing Local 705 with copies of the summary plan
document describing it health insurance plan and the plan document for its 401(k) plan.
REMEDY
40
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. I shall require Respondent at its Willow Springs, Illinois facility to
restore the guarantees employees previously had of 8 hours pay for each day worked and 40
hours pay for each week worked, and resume giving employees vacation pay of 50 hours for 45
each week of vacation taken. I shall require Respondent at its Fairfield, California facility to
restore the practice of using seniority to assign driving routes and to restore the practice of using
seniority to allocate unpaid lay-off days, to the extent that it has not already done so.
JD(SF)–42–12
20
I shall require that Respondent to make employees whole for any losses suffered as a
result of its unlawful conduct. Backpay shall be computed with interest at the rate prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010) enf. denied on other grounds sub.nom., 5
Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.13
10
ORDER
The Respondent, Nexeo Solutions, LLC, Willow Springs, Illinois, its officers, agents,
successors, and assigns, shall
15
1. Cease and desist from
(a) Eliminating the guarantees employees previously had of 8 hours pay for each day
worked and 40 hours pay for each week worked, and by reducing employees’ vacation pay from
50 to 40 hours for each week of vacation taken without first giving notice to Local 705 and 20
allowing it an opportunity to bargain over those matters.
(b) Unreasonably delaying providing Local 705 with copies of the summary plan
document describing it health insurance plan and the plan document for its 401(k) plan.
(c) 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.25
The Respondent, Nexeo Solutions, LLC, Fairfield, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from30
(a) Abandoning the practice of using seniority to assign driving routes and
abandoning the practice of using seniority to allocate unpaid lay-off days without first giving
notice to Local 70 and allowing it an opportunity to bargain over those matters.
(b) In any like or related manner interfering with, restraining, or coercing employees 35
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. The Respondent shall take the following affirmative action necessary to effectuate the
policies of the Act.

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–42–12
21
(a) At its Willow Springs, Illinois facility, restore the guarantees employees
previously had of 8 hours pay for each day worked and 40 hours pay for each week worked, and
resume giving employees vacation pay of 50 hours for each week of vacation taken.
(b) At its Fairfield, California facility, restore the practice of using seniority to assign 5
driving routes and to restore the practice of using seniority to allocate unpaid lay-off days, to the
extent that it has not already done so.
(c) Make employees whole for any loss of earnings and other benefits suffered as a
result of the unlawful conduct in the manner set forth in the remedy section of the decision.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional 10
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Willow Springs, 15
Illinois, copies of the attached notice marked “Appendix A.” and post at its facility in Fairfield,
California, copies of the attached notice marked “Appendix B”14 Copies of the notices, on forms
provided by the Regional Director after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In 20
addition to physical posting of paper notices, 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 altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent 25
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since April 1, 2011, pertaining to
Appendix A, and since April 5, 2011, pertaining to Appendix B.
(f) Within 21 days after service by the Region, file with the Regional Director a 30
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notices
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–42–12
22
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. August 30, 20125
____________________
William G. Kocol10
Administrative Law Judge
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT eliminate the guarantees employees previously had of 8 hours pay for each day
worked and 40 hours pay for each week worked, and reduce employees’ vacation pay from 50
hours to 40 hours for each week of vacation taken without first giving notice to the Truck
Drivers, Oil Drivers, Filling Station and Platform Workers’ Union, Local No. 705, an affiliate of
the International Brotherhood of Teamsters and allowing it an opportunity to bargain over those
matters..
WE WILL NOT unreasonably delay providing Local 705 with requested information that is
relevant and necessary for Local 705 to perform it functions are the bargaining agent for the unit
employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL restore the guarantees employees previously had of 8 hours pay for each day worked
and 40 hours pay for each week worked, and resume giving employees vacation pay of 50 hours
for each week of vacation taken.
WE WILL make employees whole for any loss of earnings and other benefits resulting from our
unlawful conduct plus interest compounded daily.
Nexeo Solutions, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
209 South LaSalle Street, 9th Floor
Chicago, Illinois 60604
Hours: 8:30 a.m. to 5 p.m.
312-353-7570.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THISNOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 312-353-7170.
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT abandon the practice of using seniority to assign driving routes and abandon the
practice of using seniority to allocate unpaid lay-off days without first giving notice to the
Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 of Alameda County, affiliated
with the International Brotherhood of Teamsters and allowing it an opportunity to bargain over
those matters.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL restore the practice of using seniority to assign driving routes and to restore the
practice of using seniority to allocate unpaid lay-off days, to the extent that we have not already
done so.
WE WILL make employees whole for any loss of earnings and other benefits resulting from our
unlawful conduct plus interest compounded daily.
Nexeo Solutions, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 415-356-5139.