MIDWEST TERMINALS OF TOLEDO INTERNATIONAL INC., (2017)

Docket Number:08-CA-119493
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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, Local 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 administrative law judge’s credibility resolutions unless the clear preponderance 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 bargaining unit work; that the Respondent unilaterally discontinued formal crane training, end loader training, and forklift training; that the Respondent unilaterally changed the grievance procedure; that the Respondent 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 aluminum at its facility, we observe that the Sec. 10(k) jurisdictional decision 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 Canning, 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 Respondent’s exceptions in this proceeding.

With respect to the judge’s dismissal of the allegation that the Respondent 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 protected conduct. See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662

F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Specifically, 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 unilaterally eliminating informal crane training3 for unit employees who were not formally trained and certified by the National Commission for the Certification of Crane Operators (NCCCO). In his view, the Union never requested bargaining over this change, the Respondent actually never implemented a “change,” and our finding of a violation 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 meaning, 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 compensation 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 Respondent 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.” Contrary to the Respondent’s assertion, however, the complaint is not confined 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.

365 NLRB No. 134

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 bargaining 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 concern 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 informal, 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 member 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...

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