Midwest Terminals of Toledo International, Inc., (2017)
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 Don Russell. Cases 08– CA–135971 and 08–CA–136613
October 11, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
On April 19, 2016, Administrative Law Judge Paul Bogas issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, 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 allegations that the Respondent violated Sec. 8(a)(3) and (1) of the Act by denying employee Don Russell placement on the skilled list, and by disciplining and discharging him, and Sec. 8(a)(1) by disparately applying its cell phone/mobile device policy to discriminate against Union adherents.
We affirm the judge’s finding that the Respondent violated Sec. 8(a)(3) of the Act by discriminatorily denying employee Fred Victorian, Jr. placement on the skilled list. In finding antiunion animus, the judge relied on evidence that Respondent Director of Operations Terry Leach threatened Victorian by stating in a raised voice, “I’m about this far off your ass,” when Victorian and other employees challenged the Respondent’s unilateral decision to use Teamsters-represented employees to load aluminum. We agree with the judge’s analysis and additionally rely on the Respondent’s other contemporaneous unfair labor practices found in Midwest Terminals of Toledo International, Inc., 365 NLRB No. 134 (2017) (discriminatorily discharging Union President Otis Brown and threatening and discriminatorily denying Union Vice President Prentis Hubbard pay). We also rely on the Respondent’s unfair labor practices found in Midwest Terminals of Toledo International, Inc., 362 NLRB No. 57 (2015) (threatening not to hire employees because they filed grievances under the collective-bargaining agreement and unfair labor practice charges with the Board; threatening an employee with future discipline because he filed a grievance; coercively telling employees that the Union had caused them to lose overtime; threatening to remove from the job or discharge an employee because he engaged in union and protected concerted activity; and grabbing an employee because he engaged in union and protected concerted activity). See, e.g., St. George Warehouse, Inc., 349 NLRB 870,
and to adopt the recommended Order as modified and set forth in full below.2
The National Labor Relations Board orders that the Respondent, Midwest Terminals of Toledo International, 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 International Longshoremen’s Association, Local 1982 (the Union) and giving it an opportunity to bargain.
(b) Denying placement on the skilled list or otherwise discriminating against employees for supporting the Union or any other labor organization.
(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.
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 employees, notify and, on request, bargain with the Union
878 (2007) (relying on unfair labor practices found in prior case to find that subsequent discipline was motivated by union animus); St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 203 (2007) (animus inferred from unlawful threat of reprisal to the discriminatee), enfd. 519
F.3d 373 (7th Cir. 2008). However, we disagree with our concurring colleague’s view that animus evidence must be “particularized” to a discriminatee’s own protected activity. See Commercial Air, Inc., 362 NLRB No. 39, slip op. at 1 fn. 1 (2015) (Under Wright Line, “proving that an employee’s protected activity was a motivating factor in the employer’s action does not require the General Counsel to make a particularized showing of animus towards the disciplined employee’s own protected activity.”).
Although Chairman Miscimarra agrees with his colleagues that the Respondent violated Sec. 8(a)(3) by failing to place Victorian on the skilled list, he relies exclusively on Leach’s threatening remark to Victorian as evidence of animus; he does not rely on any evidence of the Respondent’s contemporaneous unfair labor practices. In the Chairman’s view, Wright Line requires “a particularized showing that links an employee’s protected activity to the adverse employment action taken against that employee . . . .” See Commercial Air, Inc., supra, 362 NLRB No. 39, slip op. at 1 fn. 1 (Member Miscimarra, concurring). Accordingly, he does not agree with the judge’s phrasing of the third element of the Wright Line prima facie case as requiring a showing that the Respondent “harbored animosity towards the union or other protected activity.”
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. We do not rely on Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014), cited in the judge’s remedy.
365 NLRB No. 138
as the exclusive collective-bargaining representative of employees in the following bargaining unit:
[E]mployees of the Company in stevedore and warehouse operations such as longshoremen, warehousemen, crane operators, power operators, checkers, signalmen, winchmen, linemen, line dispatcher, dock steward and hatch leaders . . . [but not] office, clerical, professional and supervisory and security employees.
(b) Rescind the changes in the terms and conditions of employment for its unit employees that were unilaterally implemented in April 2014 concerning the criteria for inclusion on the skilled list and the established practice of meeting with the Union to discuss and confer before selecting employees to add to the skilled list.
(c) Make Don Russell and the estate of Fred Victorian, Jr. whole for any loss of earnings and other benefits suffered as a result of the Respondent’s failure to place them on the skilled list, in the manner set forth in the remedy section of the judge’s decision as modified herein.
(d) Compensate Don Russell and the estate of Fred Victorian, Jr. 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 allocating the backpay awards to the appropriate calendar years for each employee.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its Toledo, Ohio facility, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In 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
3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
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. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since...
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