CHEMICAL SOLVENTS, INC.

National Labor Relations Board - Board Decisions

Aug 24, 2015

362 NLRB No. 164 (N.L.R.B. 2015)

362 NLRB No. 164
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Chemical Solvents, Inc. and Turn-To Transport,
LLC, a single employer and/or alter egos and
Teamsters Local Union 507, a/w International
Brotherhood of Teamsters. Cases 08–CA–
039218, 08–CA–039277, 08–CA–039300, 08–CA–
039335, 08–CA–039362, 08–CA–039412, and 08–
CA–061979
August 24, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON,
AND MCFERRAN
On May 15, 2012, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
and the General Counsel filed exceptions, supporting
briefs, and corresponding answering briefs.
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 conclusions2
except as modified in this Decision and Order, to amend
his remedy, and to adopt his recommended Order as
modified and set forth in full below.3

1 The Respondent and the General Counsel have 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.
2 We adopt the judge’s finding, to which there are no exceptions,
that as a consequence of unlawfully refusing to furnish information
requested by the Union that related to the effects of the decision to
subcontract, the Respondent failed to give sufficient notice and oppor-
tunity to bargain about the effects of the decision, in violation of Sec.
8(a)(5) and (1). We find it unnecessary to rely on the judge’s related
discussion regarding whether the Respondent’s actions would have met
its obligation to engage in effects bargaining had it timely furnished the
information. We also adopt the findings, to which there are no excep-
tions, that the Respondent violated: Sec. 8(a)(1) by threatening an em-
ployee with unspecified reprisals and by soliciting employees to resign
and offering them money to resign, because of protected concerted
activity; Sec. 8(a)(3) and (1) by issuing a verbal warning to an employ-
ee in retaliation for union activity; and Sec. 8(a)(5) and (1) by unilater-
ally installing and operating surveillance cameras. No exceptions were
filed to the judge’s dismissal of several additional unlawful threat alle-
gations.
3 We shall modify the judge’s recommended Order to conform to the
violations found, the Board’s standard remedial language, and our
amended remedy, which includes the Board’s traditional remedy for the
failure to bargain about the effects of a decision to eliminate bargaining
unit jobs. Transmarine Navigation Corp., 170 NLRB 389 (1968). See
Chemical Solvents, Inc. (the Respondent or CSI) has
operated as a handler, producer, and distributor of chem-
icals for over 40 years. For most of that time, it em-
ployed truckdrivers to deliver its products to customers
and to haul used containers and waste back to its facility
in Cleveland, Ohio. Ed Pavlish is the sole owner and
president of CSI; his wife, Pat Pavlish, is CSI’s secre-
tary/treasurer. The Union has represented the Respond-
ent’s production and maintenance employees and
truckdrivers in a single bargaining unit since 1997.
The issues raised in this case primarily relate to cir-
cumstances surrounding CSI’s decision to subcontract its
trucking operations and the subsequent implementation
of that decision. In January 2011, while a collective-
bargaining agreement was in effect, CSI advised the Un-
ion that it had decided to phase out its trucking operation,
lay off the drivers, and thereafter use subcontractors for
its driving work. Over the course of 2011, it replaced all
of its bargaining unit drivers with subcontracted drivers.
In late May 2011, Pat Pavlish established a new corpo-
rate entity, Turn-To Transport, LLC. By late July, Turn-
To Transport had purchased all of CSI’s trucking equip-
ment, including trucks, trailers, and tankers. The amend-
ed consolidated complaint alleges that CSI, as an inte-
grated entity with Turn-To Transport, committed a series
of violations of Section 8(a)(5), (3), and (1) of the Act.
The judge found merit in some of the complaint’s allega-
tions and dismissed others. Except as discussed below,
we affirm the judge’s findings for the reasons he stated.
As discussed below, we agree with the judge that the
Respondent’s decision to subcontract the trucking work
was not unlawful. We disagree, however, with the
judge’s resolution of four specific issues. First, we find
that the Respondent did not violate Section 8(a)(5) and
(1) of the Act by unilaterally changing bargaining unit
employees’ health insurance benefits in the summer of
2010 without giving the Union adequate notice and op-
portunity to bargain about the change. Second, we find
that the Respondent violated Section 8(a)(5) and (1) in
the fall of 20104 by unilaterally changing its discipline
policies regarding cell phone usage and vehicle inspec-
tions. Third, we find that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing to furnish certain infor-
mation, requested by the Union in mid- to late January
2011, that related to the Respondent’s motive for decid-
ing to subcontract the driving work as well as to the Un-

Sawyer of Napa, 321 NLRB 1120 (1996) (applying Transmarine reme-
dy where job loss resulted from cessation of one of the employer’s
operations). We shall substitute a new notice to conform to the Order
as modified and in accordance with our decision in Durham School
Services, 360 NLRB No. 85 (2014).
4 Dates are in 2010, unless otherwise indicated.
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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ion’s pending grievance. Finally, contrary to the judge,
we find that Turn-To Transport and CSI are jointly liable
for the violations found because the evidence fully estab-
lishes that they are a single employer.
A. Alleged 8(a)(5) Unilateral Changes in Health
Benefits
Under the terms of the parties’ 2007–2012 collective-
bargaining agreement, unit employees received the same
health insurance benefits as other employees covered by
the Respondent’s health care plan. The contract provided
that, during its term, the Respondent would pay any year-
ly increase in premiums up to 7 percent, and employees
would pay up to 3 percent. The agreement further pro-
vided that
The Company has the right to obtain comparable insur-
ance during the term of this Agreement, but if compa-
rable coverage cannot be obtained that does not exceed
the yearly caps (7% for the Employer and 3% for the
Employee), then both the Company and the Union will
reopen negotiations on Health Insurance Coverage.
At some point in early 2010, the then-current insurer,
Kaiser, informed the Respondent that to continue exist-
ing benefits, there would be a 23-percent increase in
premiums; the alternative would be a 10-percent premi-
um increase with reduced coverage. The Respondent
engaged a consultant who attempted for about a month to
find more attractive terms, but without success. Accord-
ingly, on July 14, the Respondent’s attorney, Thomas
Colaluca, informed Union Secretary-Treasurer Albert
Mixon that the current health coverage would expire on
August 1; that Kaiser had stated that it would renew cov-
erage only with a premium increase of more than 20 per-
cent; and that the Respondent had tried but failed to find
comparable coverage at no more than a 10-percent in-
crease in premiums. Pursuant to the quoted contract pro-
visions, Colaluca offered to meet and discuss alternatives
with the Union. On July 16, Colaluca emailed Mixon,
informing him that maintaining the current coverage
would involve a 23-percent premium increase. In the
alternative, Colaluca proposed two options, each with
reduced benefits and with an 8.9-percent increase in
premiums, of which the Respondent would pay 70 per-
cent and employees, 30 percent. Under the first option,
dental coverage would be eliminated; under the second,
dental coverage would be retained, but employees would
pay the full premium. Under either option, employees
would have increased deductibles and copays.
Because of a previous engagement, the Union’s nego-
tiators were unable to meet until July 29. In the mean-
time, on July 23, the Respondent posted a memo to em-
ployees (with explanatory attachments) advising them
that maintaining current coverage would entail a 23-
percent premium increase; that other carriers were more
expensive; and that the Respondent was staying with
Kaiser, with reduced coverage, and with the Respondent
paying 7 percent of the increased premiums and employ-
ees paying 3 percent. There would be no dental coverage
under the Kaiser plan, but employees could obtain cover-
age from a different carrier. The Respondent posted a
second memo, with the same attachments, on July 28.
Both memos informed employees that they needed to
sign up for the new coverage by July 30.
The parties met to discuss the health insurance issue on
July 29, August 5, and August 10. As the judge de-
scribed in greater detail, Mixon protested the proposed
changes. Colaluca responded that it would cost an addi-
tional $30,000 to maintain the existing coverage, which
would have to be split 50-50 between the Respondent
and employees; Mixon rejected that suggestion.
Colaluca invited the Union to present any ideas it might
have for resolving the problem. Mixon presented figures
representing premiums for coverage under the Bakers
and Teamsters plan, but Colaluca pointed out that the
premiums under that plan were higher than under the
Respondent’s proposal. Mixon also suggested that the
existing coverage be retained, with the Respondent ab-
sorbing the entire increase in cost; Colaluca declined.
The Union made no further proposals.
At the July 29 meeting, Colaluca warned that Kaiser
would terminate coverage on August 1 if the Respondent
did not agree to the carrier’s proposed increases. How-
ever, at some point the Respondent obtained an extension
of the deadline to September 1, and so advised the Un-
ion.5 Also, on August 1, Colaluca advised Mixon by
email that the Respondent could opt out of the current
plan on 30 days’ notice if comparable coverage could be
found at the contractual rate. The parties did not reach
agreement, and on September 1 the Respondent imple-
mented its proposed plan, except that it paid the entire
8.9-percent premium increase.
The judge found that the Respondent violated Section
8(a)(5) by implementing the revised coverage without
affording the Union sufficient notice and opportunity to
bargain over the proposed changes. Erroneously believ-
ing that the Respondent had known about Kaiser’s an-
nounced premium increases by March 15, 2010,6 the

5 The record does not clearly indicate exactly when the Respondent
informed the Union about the deadline extension, but it appears that it
was sometime before August 5.
6 The judge inadvertently relied on a letter from the Respondent’s in-
surance consultant dated March 15, 2011. In fact, the record does not
3
CHEMICAL SOLVENTS, INC.
judge found that the Respondent had delayed, without
explanation, for some 4 months before informing the
Union of the need to meet and discuss alternative cover-
age. That notice was given just over 2 weeks before the
current coverage was to expire, which the judge found
was insufficient notice to allow for meaningful bargain-
ing. Accordingly, the judge agreed with the General
Counsel that the Respondent had presented the Union
with a fait accompli. As explained below, we find that
the record does not support this conclusion.
The General Counsel chiefly argues that the Respond-
ent gave the Union insufficient notice before implement-
ing the changes in health coverage.7 He points out, cor-
rectly, that the Respondent’s consultant had been re-
searching possible alternative coverage for a month be-
fore July 14, yet the Respondent failed to notify the Un-
ion of the situation until that date, just over 2 weeks be-
fore the August 1 deadline. In the General Counsel’s
view, that was too short a period of time for the Union to
adequately consider and suggest alternatives to the Re-
spondent’s proposed changes in coverage, which were
substantial. The judge agreed.
And so would we, if the Respondent had actually put
the revised plan in place on August 1, as was originally
envisioned. But as the judge found, the Respondent per-
suaded Kaiser to extend the August 1 deadline until Sep-
tember 1, and that was when the new coverage actually
went into effect. There are no exceptions to that finding.
Accordingly, the Union had almost 7 weeks to attempt to
come up with alternative proposals, which is an amount
of time sufficient to defeat the General Counsel’s allega-
tion of fait accompli in the circumstances of this case.8
Moreover, the record strongly indicates that meaning-
ful bargaining did take place. Both parties made pro-
posals and suggested alternatives, although they never
reached agreement. As an alternative to the Respond-
ent’s initial proposal, Colaluca suggested that existing
benefits could be retained if the Respondent and the em-
ployees each paid half of the increased cost, but Mixon

indicate when the Respondent received notice of the impending premi-
um increases.
7 The General Counsel did not argue that the Respondent failed to
meet its obligation under the contractual reopener clause to bargain to
consent or impasse. See New Seasons, Inc., 346 NLRB 610 (2006);
Speedrack, Inc., 293 NLRB 1054 (1989). Accordingly, we do not
address that issue.
8 In his answering brief, the General Counsel notes that in 2008,
Colaluca informed Mixon nearly 2 months before the policy renewal
date that the health insurance carrier had announced an increase that
was outside the contract terms. As a result, “the matter was resolved in
a timely manner because the parties had adequate time to meet and
bargain.” The time actually available to the parties for bargaining in
2010 was almost as long as in 2008.
rejected that idea. Colaluca also asked the Union for
proposals to try to solve the problem. The Union sug-
gested obtaining coverage under the Bakers and Team-
sters plan, but presented only a list of premium levels,
which proved to be higher than those the Respondent had
offered. Mixon’s only other suggestion was to retain
existing coverage and for the Respondent to pay the en-
tire cost increase; predictably, Colaluca rejected that op-
tion (which was obviously not contemplated in the par-
ties’ collective-bargaining agreement). The Union made
no further proposals after August 10, even at the parties’
next meeting, on November 1.9
The General Counsel also contends that the Respond-
ent’s action was a fait accompli because it intended all
along to act unilaterally. In support, the General Counsel
points to the Respondent’s having waited for at least a
month before notifying the Union that something had to
be done, in a little more than 2 weeks, to address the
health insurance problem. The General Counsel also
cites the Respondent’s notifying employees to sign up for
the new coverage by July 28, before the parties would
have a chance to meet for negotiations. We find neither
argument persuasive.
While the Respondent’s decision to wait a month to
notify the Union of the insurance issue was quite argua-
bly ill advised, and, as previously stated, we would have
found a violation if the existing coverage had not been
extended, the coverage was in fact extended, at the Re-
spondent’s request. We also note that during this period,
the Respondent’s consultant was actively searching for a
more attractive alternative to Kaiser’s announced premi-
um changes, and that had the consultant found coverage
comparable to that which the unit employees were then
enjoying, at no more than a 10-percent premium in-
crease, the Respondent would have been contractually
entitled to implement that coverage without bargaining.10
It cannot reasonably be inferred that the Respondent al-
ways intended to impose unilaterally the coverage it ul-
timately proposed, when, consistent with the parties’
contractual understanding, it was searching for a better
alternative.

9 Around August 23, Colaluca sent Mixon a letter offering to meet
and continue discussions during the ensuing 2 weeks; there is no record
of a response. A meeting scheduled for September 24 or 25 was can-
celed when not all members of the Union’s negotiating committee
showed up.
10 The General Counsel characterizes the Respondent’s action as
“looking for a way to unilaterally impose a new plan by keeping the
increase to less than the contractually mandated 10% increase.” A
more apt description might be “attempting to find comparable coverage
at a less than 10 percent cost increase, as the parties had expressly
contemplated in their collective-bargaining agreement.”
4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nor do we find it significant that on July 23 and 28,
the Respondent informed employees that they needed to
sign up for the new coverage by July 30. At the time the
Respondent made those announcements, it believed that
the new coverage had to take effect by August 1. It had
also been informed that the Union could not commence
negotiations over alternative health coverage before July
29. Waiting for negotiations to begin before advising
employees to enroll would have risked employees’ losing
coverage entirely, at least for some period. In these cir-
cumstances, we view the Respondent’s notices as an ef-
fort to avoid any such outcome, not as evidence that the
Respondent was simply going through the motions of
bargaining.11
For the foregoing reasons, we reverse the judge and
find that the Respondent did not present the Union with a
fait accompli when it announced its proposal for alterna-
tive health coverage on July 14. We will therefore dis-
miss this complaint allegation.
B. The 8(a)(5) Unilateral Changes in
Work Rules
In late October, drivers James Griffith and Bill
Zemaitis were called individually to Vice President of
Operations Gerald Schill’s office for training with Schill
and Traffic Manager John Jones. Griffith and Zemaitis
were both shown cell phone records and told that they
were abusing the Company’s cell phone policy by talking
on the phone too much and by using the phones for
nonwork purposes. Schill told them that for safety rea-
sons they were not to use the phones while driving.
Schill also told them that the drivers’ pretrip truck in-
spections should take no more than 30 minutes, and that
if they took longer, the drivers were to call the office or
submit a written report. Importantly, Schill admitted
telling them that future violations of either the cell phone
or pretrip inspection rules would result in discipline.
The judge dismissed the complaint allegation that the
Respondent had unlawfully implemented cell phone and
pretrip inspection rules, finding that the General Counsel
failed to establish that the rules at issue constituted “ma-
terial, substantial, and significant” changes in terms and
conditions of employment. See, e.g., Crittenton Hospi-
tal, 342 NLRB 686, 686 (2004). Regarding the cell
phone policy, the judge considered that the Respondent
posted a memo dated September 2 describing the policy
before the trainings were held, and that the rule as pre-
sented to employees in the training was consistent with
that memo. Finding the testimony of Griffith, the only

11 There is no contention that these announcements constituted di-
rect dealing.
witness to testify about the cell phone policy prior to
September 2, to be “confusing,” and noting that no
grievances had been filed specifically about the Septem-
ber 2 memo, the judge determined that there was no clear
evidence in the record to establish what the cell phone
policy was before September 2. He therefore found that
the General Counsel had not established that the policy
had changed.
Contrary to the judge, we are persuaded that both the
text of the September 2 memo and the circumstances of
its distribution to employees establish that the Respond-
ent’s restriction on cell phone usage constituted a materi-
al, substantial, and significant change in working condi-
tions. The September 2 memo is addressed to All Driv-
ers from John Jones, Traffic Manager, and the subject is:
COMPANY POLICY—USE OF CELL PHONES. Sig-
nificantly, it states in full:
EFFECTIVE IMMEDIATELY—DRIVERS ARE
NOT TO TALK, TEXT OR ANSWER CELL
PHONES WHILE DRIVING.
IF YOU NEED TO MAKE A PHONE CALL OR TO
ANSWER YOUR CELL PHONE, YOU NEED TO
PULL OFF THE ROADWAY AT A SAFE PLACE
OR AT YOUR DESIGNATED STOPS.
We infer from the text of this memo, and particularly from
the “EFFECTIVE IMMEDIATELY” reference, that the cell
phone use restriction was a new rule. The Respondent’s
distribution of the memo to all drivers and its holding of
individual training sessions apprising employees of the rule
contributes to our finding that it was a new rule. Moreover,
in early October, the Respondent monitored drivers’ use of
cell phones for the first time using a computer system that it
had acquired a year earlier, which it used to identify drivers
abusing the policy. This new emphasis on identification of
abusers further suggests new rules. The attachment of dis-
cipline to the new cell phone usage rules strengthens our
finding that this change was significant, material, and sub-
stantial. See Salem Hospital Corp., 360 NLRB No. 95, slip
op. at 3 (2014); Toledo Blade, Co., 343 NLRB 385, 387
(2004). We find that the absence of clear evidence of a pri-
or cell phone usage policy does not preclude a finding that
the policy announced in the September 2 memo and dis-
cussed in the October trainings was a unilateral material,
significant, and substantial change in this case. As dis-
cussed, the evidence adduced by the General Counsel was
sufficient to warrant the inference that there was such a
change in the policy and its enforcement. If evidence exist-
ed to counter or rebut the General Counsel’s showing re-
garding the Respondent’s policy, the Respondent was in an
5
CHEMICAL SOLVENTS, INC.
ideal position to produce and present it. It failed to do so.
Cf. Ferguson Enterprises, Inc., 349 NLRB 617, 618 (2007)
(newly implemented truck key policy constituted material
change, where employee disciplined for taking key home in
violation of new policy; no evidence that any employee was
disciplined for taking keys home previously).
Similarly, the attachment of discipline to the pretrip in-
spection reporting requirement leads us to conclude the
rule was a material, substantial, and significant change in
working conditions. The judge found that although the
pretrip inspection rule reflected a change, it was not a
material change, because complying with it did not im-
pose a substantial burden on employees. The judge cited
El Paso Electric Co., 355 NLRB 544, 553–554 (2010),
in which the Board adopted a judge’s finding that requir-
ing employees to call in if they were unable to finish a
job did not rise to a “material, substantial, and significant
change,” where there was no inconvenience to employ-
ees. In El Paso, however, there was no showing that
discipline was attached to the new rule. As with the cell
phone usage rule, the potential for discipline for failing
to adhere to the new pretrip inspection rule convinces us
that the Respondent’s failure to give the Union prior no-
tice and an opportunity to bargain about the changes vio-
lated Section 8(a)(5) and (1).
C. CSI’s Decision to Subcontract its
Trucking Operations
Until late 2010, the trucking of chemicals and chemi-
cal waste products for the Respondent’s customers was
done mainly by the Respondent’s bargaining unit drivers.
There were some exceptions. Subcontractors were used
to carry “freight” waste because the Respondent had de-
cided not to purchase the equipment needed for such
work. Outside carriers were also sometimes used for
jobs outside of the drivers’ normal geographic area,
when there was more work than the Respondent’s drivers
could handle, if a customer requested a particular carrier,
or for less-than-truckload deliveries. But before Novem-
ber 2010, the only time an outside carrier was used on a
recurring basis was in November 2009, when All Pro
drivers handled three deliveries.
The situation began to change in November 2010. Be-
ginning on November 5, and regularly thereafter, All Pro
and, within a couple of months, CETCO and DistTech
drivers handled increasing amounts of work for the Re-
spondent. Unit drivers, in their turn, filed 11 grievances
contending that the Respondent had violated the collec-
tive-bargaining agreement by outsourcing work when
unit drivers had not been given the 40 hours per week
required under the contract.
Beginning on February 4, 2011, the Respondent in-
formed the Union that it was laying off three unit drivers.
Other layoffs followed. The Respondent offered the
drivers alternative bargaining unit positions as entry-
level material handlers, but at lower pay levels. None of
the nine drivers accepted the offers; one retired, three
resigned, and five were laid off. All of the Respondent’s
trucking operations are now performed by subcontrac-
tors.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) by unilaterally subcontracting
bargaining unit work and laying off unit drivers without
giving the Union prior notice and an opportunity to bar-
gain. The complaint also alleges that the Respondent
subcontracted unit work and laid off drivers in retaliation
for their grievance-filing activities, in violation of Sec-
tion 8(a)(3) and (1). The judge recommended dismissal
of both allegations. We agree for the reasons that follow.
(1) The 8(a)(5) allegation: the duty to bargain about sub-
contracting
We adopt the judge’s finding that the Respondent did
not violate Section 8(a)(5) and (1) by unilaterally sub-
contracting the bargaining unit’s driving work, because
the parties’ collective-bargaining agreement entitled the
Respondent to transfer work to any other entity, which
we find included the right to unilaterally subcontract.
We agree with the judge that the Respondent’s outsourc-
ing of its trucking operations was appropriately classified
as subcontracting, which is a mandatory subject of bar-
gaining. See Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 210–212 (1964); Bob’s Big Boy Family
Restaurants, 264 NLRB 1369, 1370 (1982). Therefore,
absent establishing that it was privileged to act unilateral-
ly, the Respondent was obliged by the Act to bargain
about both the decision to subcontract and the effects of
its decision. Fibreboard Paper Products, 379 U.S. at
210–212; Fresno Bee, 339 NLRB 1214 (2003). We rec-
ognize and adhere firmly to the doctrine that a waiver of
statutory rights is not to be lightly inferred but instead
must be “clear and unmistakable.” Metropolitan Edison
Co. v. NLRB, 460 U.S. 693, 709 (1983). We agree with
the judge, however, and find that the Respondent estab-
lished that it was privileged to act unilaterally because
the management-rights clause of the parties’ collective-
bargaining agreement constitutes a clear and unmistaka-
ble waiver of the Union’s right to bargain about the deci-
sion to subcontract. Allison Corp., 330 NLRB 1363,
1365 (2000).
We have fully considered the cases cited by the Gen-
eral Counsel in arguing to the contrary. Some of these
cases demonstrate that, in other circumstances, the Board
6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
has found a union to have waived the right to bargain
about subcontracting when the specific word “subcon-
tracting” was used in the management-rights clause of
the parties’ collective-bargaining agreement. Ingham
Regional Medical Center, 342 NLRB 1259, 1262 (2004);
Allison Corp., 330 NLRB at 1365. In Reece Corp., 294
NLRB 448, 451 (1989), another case cited by the Gen-
eral Counsel, the Board found that a union did not clearly
and unmistakably waive its right to bargain about the
transfer of work between an employer’s plants, although
the union had expressly waived its right to bargain about
a decision to subcontract. These cases establish that the
Board adheres to a strict standard when evaluating
whether a contract provision privileges one party to act
unilaterally and without the other party’s consent regard-
ing a mandatory subject of bargaining.
Unlike the contract language in the cases cited by the
General Counsel, however, here the parties’ collective-
bargaining agreement expressly and precisely stated that
the Respondent retained the right “[t]o transfer any or all
of its . . . work . . . to any other entity . . . .” The General
Counsel argues that the words “subcontract” and “trans-
fer” have different meanings, particularly in the context
of labor relations. If the contractual language here had
included the precise word “subcontract,” then presuma-
bly there would be no dispute over its meaning. But the
language at issue is nevertheless clear and unmistakable,
even though it does not refer to subcontracting by name.
“[T]ransfer . . . of . . . work . . . to any other entity” is a
general formulation that necessarily includes the specific
sort of transfer represented by subcontracting. Put
somewhat differently, subcontracting cannot be accom-
plished without transferring work to another entity.
There is no suggestion in the parties’ bargaining history
or past practice, moreover, that “transfer of work” some-
how excluded subcontracting or, indeed, referred to any-
thing other than subcontracting. For these reasons, we
agree with the judge that the Union clearly and unmis-
takably waived the right to bargain about the Respond-
ent’s decision to subcontract the bargaining unit’s
work.12

12 We do not rely on the judge’s consideration of the additional lan-
guage in the management-rights clause that entitles the Respondent to
“[t]erminate or eliminate all or any part of its work or facilities.” The
evidence does not support the Respondent’s assertion that it terminated
its trucking operations; rather, we find the Respondent has maintained
the trucking operations substantially intact, while subcontracting most
of the labor involved.
We decline the Respondent’s invitation to apply the “contract-
coverage” standard in this case. As the Board has repeatedly explained,
the clear and unmistakable waiver analysis is appropriate in 8(a)(5)
cases where an employer asserts that a contract provision authorizes a
unilateral change in working conditions. Provena St. Joseph Medical
(2) The 8(a)(3) allegation: the motive to subcontract
the driving work
We also affirm the judge’s conclusion that the Re-
spondent’s decision to lay off all the bargaining unit
drivers and subcontract the driving work did not violate
Section 8(a)(3) and (1). The judge found that the Gen-
eral Counsel met his initial burden to show that the em-
ployees’ union activity was a motivating factor in the
Respondent’s decision. Wright Line, 251 NLRB 1083,
1089 (1980), enfd. on other grounds 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S.
393, 399, 403 (1983). There are no exceptions to that
finding. The judge then found that the Respondent
demonstrated that it would have laid off all of the drivers
for financial reasons, even in the absence of their union
activities, and thus that the decision to subcontract and
the resulting layoffs were not unlawful. Wright Line,
251 NLRB at 1089. We agree for the following reasons.
First, the record supports the Respondent’s assertion
that its decision to subcontract was a legitimate financial
one that had been in the works since at least early 2009.
As the judge found by that time the Respondent was en-
gaging in “ongoing discussions with several contract
carriers concerning contracting out [trucking] work and
closing the trucking division.” That finding is supported
by the credited testimony of Chris Haas, president of All
Pro Freight Systems, one of the companies that the Re-
spondent has used for contract drivers. Haas testified
that, by early 2009, Schill, at Pavlish’s direction, had
engaged in preliminary discussions with All Pro and, in
the course of those discussions, had indicated that the
Respondent wanted to reduce the costs associated with
its trucking operations. Thus, the record supports the
judge’s finding that the Respondent had expressed a de-
sire to reduce its trucking costs, and had actively ex-
plored subcontracting out the trucking work, long before
the union activity at issue in this case had commenced.
Second, the judge credited Pavilish’s testimony that
he expected to save around $300,000 per year by termi-
nating the trucking division.13 That testimony establishes
that the Respondent had sound financial reasons for sub-

Center, 350 NLRB 808, 812 (2007). In any event, the result in this
case would be the same under either standard. Inasmuch as the result
would be the same, Member Johnson finds no need to express his view
whether the Board should depart from the clear and unmistakable
standard and adopt the “contract-coverage” standard. He acknowledges
that there is at present no three-member majority in favor of reconsider-
ing the long-established waiver standard.
13 Pavlish’s testimony in this regard is uncontroverted, and is also
consistent with the other record evidence.
7
CHEMICAL SOLVENTS, INC.
contracting its trucking operations separate from and
unrelated to any antiunion animus.
Finally, the judge credited Pavlish’s testimony that he
had previously closed two other divisions of his Compa-
ny when he had determined that they were not making
money. Accordingly, the closing of the trucking division
was consistent with the Respondent’s past practice.14
The General Counsel contends that although the Re-
spondent had been studying the possibility of subcon-
tracting its trucking operations since early 2009, it had
made no firm plans before the onset of union activities in
late 2010. In that regard, the General Counsel notes that
beginning in summer 2010, there was talk of a strike
over the Respondent’s change in health benefits, and
several drivers filed grievances over subcontracting ac-
tions in fall 2010 and other matters unrelated to subcon-
tracting. In view of these facts, the General Counsel urg-
es that the Respondent has failed to show that it would
have closed the trucking division and subcontracted all
trucking operations for business reasons, even absent the
drivers’ protected conduct.
We are not persuaded. The drivers’ union activities re-
lied on by the General Counsel were comparatively mi-
nor in their impact on the Respondent. Several drivers
filed subcontracting grievances in fall 2010, but those
were about subcontracting that had already taken place.
Drivers Zemaitis and Griffith also filed grievances, but
those grievances concerned discipline over matters en-
tirely unrelated to subcontracting. And although Mixon
mentioned the possibility of a strike over the change in
health benefits, there was no strike and, indeed, no strike
threat. Like the judge, we find it difficult to believe that
a smattering of comparatively low-level union activities
such as these would have played a significant role in the
Respondent’s decision to shut down an entire division.
In these circumstances, the timing of the decision relative
to the drivers’ protected activities is only weak evidence
against the Respondent’s affirmative defense. For the
same reason, the fact that the Respondent had not made
firm plans to subcontract the trucking operation before
those activities commenced does little to undercut the

14 The Respondent also did not immediately terminate the
truckdrivers when it closed the trucking division, but instead offered
them other bargaining unit positions, as it had done for employees who
had been displaced by previous division closings.
Member Johnson notes that offering employees jobs elsewhere in
the Company is directly contrary to how one might expect an employer
to act if it was closing an operation based on a desire to rid itself of
employees who were engaging in union activity. See, e.g., Liquid
Carbonic Corp., 277 NLRB 851, 858 (1985) (lack of animus finding is
bolstered by the fact that employer later entered into a bargaining
agreement covering the individuals previously employed at the closed
facility).
Respondent’s defense. Thus, although the factors cited
by the General Counsel constitute some evidence to the
contrary, we find that they do not outweigh the evidence,
discussed above, supporting the Respondent’s affirma-
tive defense. Accordingly, the Respondent has shown,
by a preponderance of the evidence, that it would have
subcontracted the trucking work and laid off the unit
drivers even absent their protected activities.15
D. The Respondent’s Failure to Produce Information
Related Either to the Decision to Subcontract or to the
Union’s Pending Grievance
The judge found, and we agree, that the Respondent’s
failure to produce information requested by the Union
related to the effects of the decision to subcontract the
bargaining unit work and to lay off the drivers violated
Section 8(a)(5) and (1). Having found that the Respond-
ent was not required to bargain about the decision itself,
however, the judge found that the Respondent was not
obligated to produce the remaining information requested
by the Union, which he characterized as related solely to
that decision. The General Counsel excepts to this find-
ing, arguing that the judge should not have summarily
rejected all of the requested information as irrelevant, but
should have applied the Board’s broad, discovery-type
standard to determine whether the information was nec-
essary and relevant to the Union’s responsibility to repre-
sent the bargaining unit employees beyond the Union’s
asserted need for it to bargain about the decision. NLRB
v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967).
The General Counsel argues that the Union needed the
information to decide whether to file or process related
grievances. Beth Abraham Health Services, 332 NLRB
1234 (2000).
We find merit in the General Counsel’s exception to
the extent that the Union’s requests encompassed infor-
mation related either to the Respondent’s motive to sub-
contract or to its pending grievance.16 When a party
seeks information for a proper and legitimate purpose, it
does not lose its entitlement to the information if there
are other reasons for the request. Ralphs Grocery Co.,
352 NLRB 128, 135 (2008), adopted following remand
by 355 NLRB 1279 (2010); Associated General Con-
tractors of California, 242 NLRB 891, 894 (1979), enfd.

15 See Merillat Industries, 307 NLRB 1301, 1303 (1992) (respond-
ent is required to establish its Wright Line defense only by a preponder-
ance of the evidence; defense does not fail merely because not all the
evidence supports it, or even if some evidence tends to negate it).
16 Because the Board’s findings make this information no longer
necessary, and considering that it will not materially affect the remedy,
Member Johnson finds it unnecessary to pass on whether the Respond-
ent lawfully refrained from producing evidence related to its motive to
subcontract.
8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in part 633 F.2d 766 (9th Cir. 1980). In its January 19,
2011 request for information, which includes a demand
to bargain about the decision and effects of the purported
closure of the trucking operations, the Union stated that,
in light of its belief that the decision was retaliatory and a
repudiation of the contract, it would be pursuing griev-
ances and unfair labor practice charges, and it attached a
class action grievance.
Similarly, in its January 28, 2011 letter following up
on the original request and requesting additional infor-
mation, the Union again mentioned that it believed the
decision to subcontract was retaliatory and discussed the
status of the class action grievance. Although the sub-
contracting information may not have been presumptive-
ly relevant, it is noteworthy that here, not only did the
Union articulate that it was concerned that the decision
was retaliatory, but, in fact, the record establishes that the
Union had good reason to be concerned. The Union was
entitled to information to evaluate the merit of proposed
grievances and to determine whether to pursue them.
Therefore, we find that because the Union was entitled to
information related to the Respondent’s motive for de-
ciding to subcontract the driving work and to related in-
formation to the extent it was needed to determine
whether to pursue the grievance it had filed, the Re-
spondent’s failure to provide that information violated
Section 8(a)(5) and (1).
However, because we have determined that the Re-
spondent’s decision was not unlawful, we further find
that the information requested is now moot, in that it is
no longer necessary for the Union to evaluate the Re-
spondent’s motive to subcontract. Thus, we shall order
the Respondent to cease and desist from failing to pro-
vide information relevant and necessary to the Union’s
role as exclusive bargaining representative, but we will
not require the Respondent to produce the information
that is no longer necessary.
E. The Relationship Between CSI and Turn-To
Transport
Contrary to the judge, we find that CSI and Turn-To
Transport constitute a single employer, and that Turn-To
Transport was established by CSI about May 16, 2011,
as a subordinate instrument, as alleged in the complaint.
We find it unnecessary to decide whether the Respond-
ents are also alter egos, as the complaint alleges, because
doing so would not affect the remedy.
The single-employer and alter-ego doctrines are relat-
ed but separate concepts. Johnstown Corp., 322 NLRB
818 (1997). Single-employer issues arise when two
businesses that are closely related operate at the same
time. See, e.g., Naperville Ready Mix, Inc., 329 NLRB
174, 179–180 (1999), enfd. 242 F.3d 744 (7th Cir. 2001).
Alter-ego issues tend to arise either when a new entity
replaces a predecessor or when entities operate consecu-
tively. See Iowa Express Distribution, Inc. v. NLRB, 739
F.2d. 1305, 1310 (8th Cir. 1984). Here, Turn-To
Transport replaced a part of CSI’s trucking business and
continued to operate alongside CSI, and we have deter-
mined that the factual scenario fits the single-employer
theory. See Three Sisters Sportswear Co., 312 NLRB
853, 863 (1993); IL Progresso Italo Americano Publish-
ing Co., 299 NLRB 270, 270–271 (1990).
In determining whether two nominally separate entities
constitute a single employer, the Board examines four
factors: (1) common ownership or financial control; (2)
common management; (3) functional interrelations of
operations; and (4) centralized control of labor relations.
Bolivar-Tees, Inc., 349 NLRB 720 (2007), enfd. 551
F.3d 722 (8th Cir. 2008); Naperville Ready Mix, 329
NLRB at 179. Although the Board considers centralized
control of labor relations a significant indicator of single-
employer status, no single aspect is controlling and all
four factors are not required. Bolivar-Tees, 349 NLRB at
720, and cases cited therein. Single-employer status is
characterized by the absence of an arm’s-length relation-
ship between nominally separate entities. Id.; RBE Elec-
tronics of S.D., 320 NLRB 80 (1995).
We agree with the judge’s finding, to which there are
no exceptions, that CSI and Turn-To Transport share
common ownership. Regarding the functional interrela-
tionship of operations, common management, and cen-
tralized control of labor relations, which the judge found
were not established, we find that judge failed to consid-
er the whole picture. We find that the record clearly
demonstrates the functional integration of the entities,
and we find that the judge erred in concluding that there
was no functional interrelationship between them. We
also consider that Turn-To Transport performs very little
work and appears to have little need for either labor rela-
tions or management, as it is primarily a company that
primarily holds and leases trucks to CSI’s major subcon-
tractor, Cleveland Express Trucking Co. (CETCO), and
itself employs only one driver. Thus, we conclude that,
under these circumstances, the strong evidence of co-
ownership and functional integration outweighs the lack
of a showing of centralized control of labor relations or
common management. Importantly, the record clearly
shows an absence of an arm’s-length relationship be-
tween CSI and Turn-To Transport and that Turn-To
Transport exists primarily as a shell company that holds
CSI’s transportation equipment and leases the equipment
back to CSI and CETCO.
9
CHEMICAL SOLVENTS, INC.
In our view, the judge erred by relying on too narrow a
view of the role played by Turn-To Transport’s one em-
ployee driver and, therefore, failing to consider important
facts related to Turn-To Transport’s primary business as
a truck-leasing company. The judge found that Turn-To
Transport’s one driver did not interact much with “CSI’s
contract drivers” and performed long-distance, rather
than local driving; that CSI had not been in the truck-
leasing business before Turn-To Transport was estab-
lished; and that Pat Pavlish operated out of a separate
office from CSI, appeared to have no interaction with
CSI’s contract drivers or CSI employees, and played no
meaningful role in CSI’s personnel practices.
The following pertinent facts, however, which we find
support a finding of single-employer status, were not
considered by the judge. Turn-To Transport’s primary
“operation” is to own the vehicles it purchased from CSI
and to lease them to CETCO in order for CETCO to per-
form transportation services for CSI, which makes Turn-
To Transport’s primary operation entirely interrelated
with CSI’s operation. Although Turn-To Transport is
primarily a vehicle owning and leasing company, it has
no parking lot, garage, maintenance people, salespeople,
or account representatives. Turn-To Transport’s vehicles
that are not leased to CETCO are housed at CSI’s facility
for no charge.17 Even Turn-To Transport’s one employ-
ee driver regularly hauls products to CSI, and he parks
his vehicle at CSI when it is not at his home. Moreover,
CSI “rents” the stored vehicles from Turn-To Transport
on an as-needed basis. Although, as the judge observed,
it may be true that Pat Pavlish has little, if any, interac-
tion with CSI’s contract drivers or CSI employees, she
arguably has little contact with her own employee—she
describes him as a former owner-operator who, in addi-
tion to the work he performs hauling for CSI, obtains
additional work from the same broker used by CSI. That
there is no overlapping management or labor relations is
not surprising, because, in addition to there being only
one employee who functions relatively independently,
there is almost no “management” required at Turn-To
Transport other than accounting. Pat Pavlish’s primary
residence is in Florida, where she stays for about 6
months a year; she testified that when she goes to Flori-
da, she closes up her Turn-To Transport office and brings
her cell phone and Turn-To Transport’s checkbook with
her. Apparently, that is all she needs to “run” Turn-To
Transport for 6 months. Ed Pavlish also spends 6
months in Florida, but he admits that Schill runs CSI’s
day-to-day operations and that he returns to the plant
periodically.

17 CSI also permits CETCO to park vehicles and equipment at CSI.
We find it significant that Pat Pavlish continues to be a
salaried employee of CSI, involved in its financial and
accounting department, and that she used some of the
resources at CSI to set up her company. Although both
she and Schill denied it, the documentary evidence estab-
lishes that she relied on Schill and Schill’s contacts to
initially arrange her deal with CETCO, which was al-
ready in negotiations with Schill to contract the driving
work from CSI. The terms of the deal she ultimately
made with CETCO are very similar to the terms CETCO
had been discussing with CSI. She relied on CSI’s ad-
ministrative personnel to transfer the licenses and insur-
ance certifications for the trucks she acquired from CSI.
She even relied on CSI’s attorney to set up Turn-To
Transport as a limited liability company. Finally, the
deal she struck with CETCO to lease trucks was made on
the same day and is designed to encompass the same
amount of driving work as the deal CETCO entered into
with CSI to perform the work.
By not considering these many facts related to the
functional interrelationship of operations of CSI and
Turn-To Transport in the single-employer analysis, the
judge put undue emphasis on corporate form rather than
function. Moreover, by emphasizing a lack of common
management and labor relations in finding the entities
independent, the judge failed to appropriately consider
that Turn-To Transport’s operations require very little of
either. See Bolivar Tees, 349 NLRB at 722; Three Sis-
ters Sportswear, 312 NLRB at 863. Similar to the trans-
actions in Naperville Ready Mix, Inc., the Pavlishes re-
tained an ownership interest and substantial control of
the vehicles used in CSI’s transportation operations
through the creation of what appears to be a shell com-
pany, Turn-To Transport. See Naperville, 329 NLRB at
180–181. The fact that Turn-To Transport employs one
driver should not detract from its primary function as a
shell company holding CSI’s transportation equipment.
For the above reasons, we conclude that CSI and Turn-
To Transport are a single employer, and we will hold the
companies jointly liable for the unfair labor practices
found.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(5), (3),
and (1) of the Act, we shall order that it cease and desist
and take certain affirmative actions designed to effectu-
ate the policies of the Act. In addition to the actions set
forth in the judge’s decision, to remedy the Respondent’s
unlawful failure and refusal to bargain with the Union
about the effects of the decision to subcontract the truck-
ing work and to lay off the bargaining unit drivers, we
10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shall order the Respondent to bargain with the Union, on
request, about the effects outsourcing the trucking opera-
tion. As a result of the Respondent’s unlawful conduct,
the unit employees have been denied an opportunity to
bargain through their collective-bargaining representative
at a time when the Respondent might still have been in
need of their services and a measure of balanced bargain-
ing power existed. Meaningful bargaining cannot be
assured until some measure of economic strength is re-
stored to the Union. A bargaining order alone, therefore,
cannot serve as an adequate remedy for the unfair labor
practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violation and to recreate in some practicable man-
ner a situation in which the parties’ bargaining position is
not entirely devoid of economic consequences for the
Respondent. We shall do so by ordering the Respondent
to pay backpay to the laid-off unit employees in a man-
ner similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified by Melody
Toyota, 325 NLRB 846 (1998).18
Thus, the Respondent shall pay its laid-off unit em-
ployees backpay at the rate of their normal wages when
last in the Respondent’s employ from 5 days after the
date of this Decision and Order until occurrence of the
earliest of the following conditions: (1) the date the Re-
spondent bargains to agreement with the Union on those
subjects pertaining to the effects of the outsourcing on
the unit employees; (2) a bona fide impasse in bargain-
ing; (3) the Union’s failure to request bargaining within 5
business days after receipt of this Decision and Order, or
to commence negotiations within 5 business days after
receipt of the Respondent’s notice of its desire to bargain
with the Union; or (4) the Union’s subsequent failure to
bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which the Respondent ceased its trucking
operations to the time they secured equivalent employ-
ment elsewhere, or the date on which the Respondent
shall have offered to bargain in good faith, whichever
occurs sooner. However, in no event shall this sum be
less than the employees would have earned for a 2-week
period at the rate of their normal wages when last in the
Respondent’s employ. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289

18 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB
No. 8 (2010). The Respondent shall also file a report
with the Social Security Administration allocating
backpay to the appropriate calendar quarters for each
affected employee, and compensate employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Chemical Solvents, Inc. and Turn-To
Transport, LLC, a single employer, Cleveland, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals,
discharge, or any other discipline as retaliation for their
union or protected concerted activity, including discuss-
ing the possibility of work stoppages and the filing of
grievances under the collective-bargaining agreement.
(b) Coercively inviting employees to resign their em-
ployment or offering them money to resign because they
engage in union or protected concerted activities, includ-
ing discussing the possibility of work stoppages or the
filing of grievances under the collective-bargaining
agreement.
(c) Verbally warning or otherwise discriminating
against any employees for engaging in union or protected
concerted activity, including discussing the possibility of
work stoppages or the filing of grievances under the col-
lective-bargaining agreement.
(d) Making unilateral changes by installing surveil-
lance cameras, implementing cell phone usage policies,
implementing pretrip inspection reporting requirements,
or making changes to any other term and condition of
employment without affording Teamsters Local Union
507, a/w International Brotherhood of Teamsters (the
Union), adequate prior notice and an opportunity to bar-
gain.
(e) Failing to timely provide the Union with infor-
mation it requests that is relevant and necessary for it to
fulfill its role as a collective-bargaining representative,
including bargaining over the effects of the Respondent’s
decision to contract out bargaining unit work, and its
duty to investigate, evaluate, and process grievances, and
otherwise represent unit employees.
(f) Failing to bargain with the Union over the effects of
decisions to subcontract bargaining unit work or lay off
bargaining unit employees.
11
CHEMICAL SOLVENTS, INC.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful verbal warn-
ing issued to Bill Zemaitis, and within 3 days thereafter
notify him in writing that this has been done and that the
discipline will not be used against him in any way.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full-time and regular part-time production and
maintenance employees and truck drivers, but exclud-
ing all office clerical employees, professional employ-
ees, and all guards and supervisors as defined in the
Act.
(c) Remove, cover, or disable the surveillance camer-
as that were unilaterally installed in August and Septem-
ber 2010.
(d) Rescind the unilaterally implemented cell phone
usage restrictions and the reporting requirements related
to pretrip inspections instituted in September and Octo-
ber 2010.
(e) Provide the Union with the information that it re-
quested on about January 19, 2011, that was relevant and
necessary for it to bargain about the effects of the Re-
spondent’s decision to subcontract bargaining unit work
and lay off unit drivers.
(f) On request, bargain with the Union about the ef-
fects on employees of the Respondent’s decision to sub-
contract bargaining unit work and lay off unit drivers.
(g) Pay the laid-off drivers their normal wages for the
times set forth in the amended remedy section of this
decision.
(h) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each employee.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records, including an electronic copy
of such records if stored in electronic form, necessary to
analyze the amount of backpay or other make-whole
payments due under the terms of this order.
(j) Within 14 days after service by the Region, post at
its facilities in Cleveland, Ohio, copies of the attached
notice marked “Appendix.”19 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices should be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily 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 cov-
ered 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 em-
ployees and former employees employed by the Re-
spondent at any time since September 1, 2010.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 8 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 24, 2015
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with unspecified reprisals,
discharge, or any other discipline because you engage in
activity on behalf of Teamsters Local Union 507, a/w
International Brotherhood of Teamsters (the Union), or
in other protected activity, including discussing the pos-
sibility of work stoppages or the filing of grievances un-
der the collective-bargaining agreement, or in order to
discourage you from engaging in activities in support of
the Union.
WE WILL NOT coercively invite you to resign your em-
ployment or offer you money to resign because you en-
gaged in activity on behalf of the Union or in other pro-
tected activity, including discussing the possibility of
work stoppages or the filing of grievances.
WE WILL NOT issue you verbal warnings or other dis-
cipline because you engage in activity on behalf of the
Union or in other protected activity, including discussing
the possibility of work stoppages or the filing of griev-
ances.
WE WILL NOT install surveillance cameras, implement
cell phone usage restrictions, implement reporting re-
quirements related to pretrip inspections, or make chang-
es to any other term and condition of employment with-
out affording the Union adequate prior notice and an
opportunity to bargain.
WE WILL NOT fail to provide the Union with infor-
mation it requests that is relevant and necessary for it to
fulfill its role as your exclusive collective-bargaining
representative, including information related to bargain-
ing over the effects of our decision to contract out bar-
gaining unit work pursuant to the collective-bargaining
agreement or lay off employees, and the duty to investi-
gate, evaluate, and process grievances, or otherwise rep-
resent bargaining unit employees.
WE WILL NOT fail to bargain with the Union over the
effects of our decision to subcontract bargaining unit
work and lay off employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL provide the Union with the information that it
requested on about January 19, 2011, that was relevant
and necessary for it to bargain with us about the effects
of our decision to subcontract our trucking work and lay
off unit drivers.
WE WILL, upon request, bargain with the Union about
the effects on employees of our decision to subcontract
our trucking work and lay off unit drivers
WE WILL pay the drivers laid off as a result of our de-
cision to subcontract our trucking work their normal
wages for a period required by the Board’s decision.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful verbal warning issued to Bill Zemaitis, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the discipline will not be used
against him in any way.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All full-time and regular part-time production and
maintenance employees and truck drivers, but exclud-
ing all office clerical employees, professional employ-
ees, and all guards and supervisors as defined in the
Act.
WE WILL remove, cover, or disable the surveillance
cameras that we unilaterally installed in August and Sep-
tember 2010.
13
CHEMICAL SOLVENTS, INC.
WE WILL rescind the cell phone usage restrictions and
reporting requirements related to pretrip inspections that
we unilaterally instituted in September and October
2010.
CHEMICAL SOLVENTS, INC. AND TURN-TO
TRANSPORT, LLC, A SINGLE EMPLOYER
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-039218 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Cheryl Sizemore, Esq., for the Acting General Counsel.
Thomas L. Colaluca, Esq. (The Colaluca Law Firm, LLC), of
Cleveland, Ohio, for the Respondents.
David M. Ondrey (Thrasher, Dinsmore & Dolan), of Chardon,
Ohio, for Respondent Turn-To.
James Petroff, Esq. (Faulkner, Hoffman & Phillips), of Cleve-
land, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter arises
out of a second order consolidating cases, amended consolidat-
ed complaint and notice of hearing (the complaint) that the
Acting General Counsel issued on October 26, 2011. The
complaint stems from charges filed by Teamsters Local Union
507 a/w International Brotherhood of Teamsters (the Union)
against Chemical Solvents, Inc. (CSI, the Company, or the
Respondent) and Turn-To Transport, LLC (Turn-To). The
Acting General Counsel alleges unfair labor practices (ULPs)
under Section 8(a)(5), (3), and (1) of the National Labor Rela-
tions Act (the Act). Pursuant to notice, I held a trial in Cleve-
land, Ohio, from January 17–24, 2012, at which I afforded the
parties full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence.
Issues
(1) Did the Respondent, starting on November 5, 2010,
phase out the use of bargaining unit truckdrivers (driv-
ers), and eventually close the trucking division and re-
place all of them with drivers employed by outside car-
riers (contract drivers), without affording the Union an
opportunity to bargain over the decision to replace
them, and/or its effects?
(2) Did the Respondent phase out and close the trucking di-
vision because drivers engaged in union/protected activ-
ity?
(3) Did the Respondent, since on about January 19, 2011,
fail and refuse to provide the Union with necessary and
relevant information that the Union requested relative to
the Respondent’s decision to phase out and close the
trucking division, and/or its effects?
(4) Are CSI and Turn-To a single employer/alter egos?
(5) Did the Respondent, on about September 1, 2010, uni-
laterally change and reduce the health insurance bene-
fits available to bargaining unit employees, without af-
fording the Union prior notice and an opportunity to
bargain?
(6) Did the Respondent, in August and September 2010, in-
stall new surveillance cameras in or by its facilities,
without affording the Union prior notice and an oppor-
tunity to bargain?
(7) Did the Respondent, in late October 2010, unilaterally
change its disciplinary policy regarding truck inspec-
tions and drivers’ use of cell phones, without affording
the Union prior notice and an opportunity to bargain?
Although the complaint addresses only a unilateral
change regarding use of cell phones, counsel for the
Acting General Counsel contends in her brief that un-
lawful unilateral changes were made as to both. The
Board may find and remedy a violation even in the ab-
sence of a specified allegation in the complaint, if the
issue is closely connected to the subject matter of the
complaint and has been fully litigated. Garage Man-
agement Corp., 334 NLRB 940, 940 (2001); Letter
Carriers Local 3825 (Postal Service), 333 NLRB 343,
345 fn. 3 (2001). I find that to be the situation here,
noting that both topics were discussed at the same meet-
ings.
(8) Did Vice President of Operations Gerald (Jerry) Schill,
on October 22 and 29, 2010, respectively, threaten driv-
ers James Griffith and Bill Zemaitis with discipline if
they violated company policies regarding cell phones
and truck inspections, because they had engaged in un-
ion/protected activity?
The complaint addresses only threats regarding en-
forcement of the inspections’ policy, but the Acting
General Counsel’s brief contends that the threats related
to both policies. For the reasons stated above, I find
consideration of both appropriate.
(9) Did Schill, on October 27, 2010, threaten Griffith with
unspecified reprisals because he had engaged in un-
ion/protected activity?
(10) Did Schill, on November 8, 2010, threaten Zemaitis
with discharge because he had engaged in un-
ion/protected activity?
(11) Did Schill, on November 8 and 9, 2010, respectively,
solicit Griffith and Zemaitis to resign and offer them
14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
money to resign, impliedly threatening discharge, be-
cause they had engaged in union/protected activity?
(12) Did Schill issue Zemaitis a verbal warning on Novem-
ber 11, 2010, relating to his pretrip inspection of a
truck, in retaliation for Zemaitis’ union/protected activi-
ty?\
(13) Did Supervisor John Mitchell, on about April 13 or 14,
2011, threaten shop employee Travis Hreha with un-
specified reprisals because he had engaged in protected
activity by advising contract drivers of safety issues?
(14) Did Mitchell, on about April 15, 2011, and later that
month, threaten shop employees with layoff and/or dis-
charge if they filed grievances under the collective-
bargaining agreement?
Witnesses and Credibility
The witnesses were as follows:
Employees—Former drivers Griffith, Zemaitis, Joseph
Cieslinski, and Kenneth Gloden; and material handlers Hreha
and Charles Hughes.
Union agents—Secretary/Treasurer Albert Mixon and Attor-
ney James Petroff.
Company agents—Schill and Mitchell, Sole Owner Ed
Pavlish (Pavlish), his wife and Secretary/Treasurer Patricia
Pavlish (Pat Pavlish), Traffic Manager John Jones, and Attor-
ney Thomas Colaluca.
Representatives of other companies—Anthony Dattilo,
Ph.D., owner of Enviro Matrix, Inc., which provides environ-
mental regulatory compliance services to CSI; Bob Debevec,
MBA, an owner of Clearpoint Partners, which provides ac-
counting services to CSI; and Chris Haas, president and chief
executive officer of All Pro Freight Systems, one of the compa-
nies that CSI has used for contract drivers.
Some witnesses were fully credible, others only partially so.
I find it appropriate here to cite the well-established precept
that “‘[N]othing is more common in all kinds of judicial deci-
sions than to believe some and not all’ of a witness’ testimony.”
Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008), citing
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), revd. on other grounds 340 U.S. 474 (1951). The trier of
fact must consider the plausibility of a witness’ testimony and
appropriately weigh it with the evidence as a whole. Golden
Hours Convalescent Hospitals, 182 NLRB 796, 797–799
(1970).
The Acting General Counsel called Hreha and Hughes, cur-
rent CSI employees. Because current employees who testify
against an employer run the risk of economic reprisal, their
testimony is likely to be particularly reliable. Jewish Home for
the Elderly of Fairfield County, 343 NLRB 1069, 1069 fn. 2
(2004), enfd. 174 Fed. Appx. 631 (2d Cir. 2006); Shop-Rite
Supermarket, 231 NLRB 500, 505 fn. 22 (1997). Taking this
and my observations of their demeanor into account, I find that
Hreha and Hughes were credible, and I credit their versions of
events where they differed from other witnesses.
I will further address credibility in the course of reciting the
facts relative to individual allegations.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, and stipulations, as
well as the thorough posttrial briefs that the Acting General
Counsel and Attorney Colaluca filed, I find the following.
Background
The Respondent, an Ohio corporation, with an office and
place of business in Cleveland, Ohio, customizes materials for
paint formulation, paint purging, metal degreasing, and the
cleaning of chemicals; and provides industrial chemicals in the
recycling, treatment, and disposal of generated waste materials.
Jurisdiction as alleged in the complaint is admitted, and I so
find. Because CSI stores and transports hazardous materials, it
is highly regulated by various agencies, including the United
States Department of Homeland Security (DHS) and the Ohio
Public Utilities Commission (PUC).
Sole Owner and President Pavlish opened the Company
about 42 years ago. His wife, Pat Pavlish, is its secretary-
treasurer. CSI has no other officers. Almost from the outset, it
operated a trucking division.
On April 28, 1997, based upon a representation election held
on April 17, 2007, the Union was certified as the exclusive
bargaining representative of a unit composed of all full-time
and regular part-time production and maintenance employees
and truckdrivers, excluding office clerical employees, profes-
sional employees, and guards and supervisors as defined in the
Act. CSI and the Union are parties to a collective-bargaining
agreement, effective from May 1, 2007, until April 30, 2012.1
This is their third labor agreement.
Article II of the agreement is the management-rights clause.
I will later address the specific provisions of the management-
rights clause relevant to the closing of the trucking division.
Article XIV sets out a grievance procedure. Step 1 is a meet-
ing between the supervisor and the employee, at which a shop
steward may be present. Step 2 provides that the grievance be
reduced to writing and given to the Company’s designated rep-
resentative for a written response. The third step is arbitration,
at the Union’s option. There is no evidence that any grievances
have gone to that stage. The employee handbook provides for
four types of disciplinary action: verbal warning (documented),
written warning, a 3-day suspension, and termination.2
Two facilities have been in operation, one called Jennings
Road (Jennings) and the other Dennison Avenue (Dennison).
At Dennison was the approximately 100-foot-long Luwa trailer,
in which the drivers’ lunchroom was located, along with a su-
pervisor’s office at each end. Management conducted meetings
with employees in the trailer, outside of which was the drivers’
smoking area.
At the beginning of 2011, the Respondent employed approx-
imately 51 unit employees: 42 in production and maintenance
(shop employees), and 9 drivers. All nine drivers were laid off
that year, and CSI currently employs none. Contract drivers
furnished by carriers All Pro Freight, Cleveland Express Trans-

1 Jt. Exh. 1.
2 R. Exh. 82, p. 15.
15
CHEMICAL SOLVENTS, INC.
portation,3 and DistTech now do all of the work that the drivers
previously performed. At present, the Company employs ap-
proximately 42 unit production and maintenance employees,
who work in various departments at Jennings.
ULPs Relating to Griffith and Zemaitis
All dates in this section occurred in 2010, unless otherwise
indicated.
Of the witnesses who testified on these matters—Griffith,
Zemaitis, and Hughes; and Schill and Jones—Hughes and
Jones offered limited testimony but were the most fully credi-
ble. Hughes, who remains an employee, appeared candid and
not to make any efforts to skew his testimony either for or
against the Company. Jones’ testimony was internally con-
sistent, and he demonstrated candor; in particular, stating that
the new GPS system installed in early 2009 was not helpful to
him. Accordingly, I credit them where their testimony differed
from the other three witnesses, whose testimony was flawed.
Griffith’s testimony on the subject of cell phones was con-
fusing because he jumped back and forth in terms of the se-
quence of events and was unclear whether Schill stated that
drivers should not talk to each other while driving the vehicle
or at any time while they were on the road.
Griffith’s description of the cell phone policy prior to Sep-
tember 2 was somewhat contradictory. He testified that when
the drivers got cell phones in the early 2000s, then Dispatcher
John McNutt issued a memorandum stating that there was no
problem if they talked among themselves because the Company
did not pay for minutes, and they were permitted to give direc-
tions to other drivers or discuss business issues; however, he
also testified that McNutt stated that the phones were not for
personal use but were only for emergency purposes or to con-
tact the Company.4
Finally, Griffith equivocated when asked whether Schill told
him on October 22 that there would be a 30-minute time limit
on both pretrip and posttrip inspections, finally conceding that
Schill did not specifically mention posttrip inspections, but that
Griffith assumed he meant both.5 On the other hand, both
Zemaitis and Schill testified that the latter only referenced
pretrip inspections as far as the time limit, and I credit them.
Zemaitis’ testimony about the bases for his November 12
grievance was hopelessly shifting.6 In this regard, both
Hughes’ testimony of what occurred at the November 19 griev-
ance meeting concerning Zemaitis’ November 12 grievance,
and the notations that Schill made on the face of the grievance,
belie Zemaitis’ testimony that the grievance was “probably”
more over the verbal warning he received on November 11 than
his November 9 conversation with Schill.7

3 This company’s vehicles originally had the logo CET, but it later
changed to CETCO, perhaps reflecting a change in either corporate
name or ownership. Their drivers remained the same. Some witnesses
used the names interchangeably and, for purposes of simplicity,
“CETCO” will be used for both.
4 Tr. 94.
5 Tr. 84, 85.
6 See Tr. 305–309.
7 Tr. 280.
I also note that Zemaitis and Griffith were not fully con-
sistent in describing what Schill/Jones stated about cell phone
use and inspection policies at their respective meetings, alt-
hough I have no reason to believe that management articulated
the policies differently to different drivers.
Schill appeared defensive and ill at ease during much of his
testimony, especially when he was a 611(c) witness. Addition-
ally, portions of his testimony lacked reliability. He testified
that if a driver violates pretrip inspection procedures, it is dealt
with immediately as a safety issue. However, he concededly
allowed Zemaitis to drive off on November 9 after observing
that he had not properly performed a pretrip inspection, and he
further testified that it did not occur to him even to call
Zemaitis as he drove out—inconsistent with a genuine major
safety concern. Furthermore, Schill equivocated back and
forth, to the point of evasion, in answering whether he warned
Zemaitis and Griffith that violations of the cell phone and truck
inspection policies would result in discipline.8 Finally, after the
Acting General Counsel had him read his NLRB affidavit, he
testified that he in fact did, consistent with Zemaitis’ testimony.
Other defects in Schill’s testimony will be addressed in subse-
quent portions of this decision.
Turning to the facts, Griffith was a driver from August 1982
until he resigned in June 2011. He had an interruption in em-
ployment in 2007 due to the following. He was the union stew-
ard for the drivers from 1998 until 2007. On about August 20
or 21, 2007, the drivers concertedly failed to show up for work.
CSI viewed this action as unlawful, as reflected in General
Counsel’s Exhibit 10. It is undisputed that the Company held
Griffith responsible as the union steward and terminated his
employment on about August 23. He was rehired after about 1
or 1-1/2 months, without backpay, but never resumed his posi-
tion as union steward. He testified without controversion that
at the time of his rehire, both John Pavlish, Pavlish’s son, and
Schill made statements evincing anger at the drivers because of
the work stoppage. Griffith filed a ULP charge over his termi-
nation but withdrew it after he was reinstated.
Zemaitis was employed as a driver from September 24,
2007, until he was laid off on February 1, 2011, for lack of
work.
Traffic Manager Jones supervised the drivers. Hughes, a un-
ion shop steward for production employees, served as the union
steward for the drivers in 2010 because they did not have their
own steward. All grievance meetings subsequently described
took place in Schill’s office, with Hughes, Schill, Jones, and the
grievant present. In this respect, I credit Hughes and find that
Zemaitis attended the November 19 grievance meeting, over
Zemaitis’ testimony that he did not.
I. CELL PHONE POLICY PRIOR TO OCTOBER
On about September 2, a memorandum of that date, signed
by Jones, was placed in employees’ mailboxes.9 It stated that
the Company did not want drivers texting, talking, or making
personal calls while driving and further stated that if drivers

8 See Tr. 803–808.
9 Jt. Exh. 8.
16
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
needed to talk to management, they should pull off the roadway
at a safe place or go to a designated stop.
Determining the exact policy before September 2 is difficult,
since Griffith was the only witness to testify thereon, and his
testimony was confusing. He did testify that the memorandum
changed the policy by not allowing talking while driving, and
both he and Zemaitis testified that the practice was that drivers
used them to get directions and information about customers
from other drivers. Their testimony on point was plausible, and
I credit it. No grievance was filed over the memorandum, and
no driver was ever disciplined for violation of the cell phone
policy, either before or after its issuance.
CSI implemented a new cell phone system in 2010 that gave
it more information about drivers’ cell phone use. The Compa-
ny monitored drivers’ cell phone use for a 1-week period start-
ing on October 13, and determined that they were spending too
much time on their cell phones.
II. PRETRIP AND POSTTRIP INSPECTIONS
Before going onto a public roadway, drivers had to make
certain that their loads were properly secured, that the paper-
work was in proper order, and that they conducted a thorough
inspection of the vehicle, to see that the equipment was hooked
up properly, there were no leaks, and the placards signifying
hauling hazardous materials were displayed. Approximately 40
percent of the loads were of hazardous wastes. Upon returning
to the facility, the driver conducted a thorough walk-through
around the vehicle, to make certain there were no flat tires, the
lights were still operating, there were no leaks, and everything
was in proper order.
Griffith generally took 30–40 minutes for the pretrip inspec-
tions, sometimes even up to an hour, and 30 minutes for the
posttrip inspections. Thirty minutes was sufficient for his
pretrip inspections about 50 percent of the time. On a couple of
earlier occasions prior to October 2010, management talked to
him about his inspections taking longer than 30 minutes, but he
was never disciplined. Griffith did not recall ever having seen
anything in writing about a 30-minute time limit but did testify
that management had mentioned it verbally in the past to driv-
ers, in a group setting. Zemaitis took over 30 minutes for
pretrip inspections on occasion but was never disciplined.
There is no evidence that any driver was ever disciplined for
taking more than 30 minutes for a pretrip inspection or for any
other pretrip or posttrip dereliction at the facility. The record
contains only one discipline for a load violation prior to Octo-
ber: on July 25, 2005, driver Scott Haught was disciplined after
the PUC levied a fine of over $1600 because he was found to
have a mislabeled and unsecured drum at a weight station.10
III. TRAINING SESSIONS AND SUBSEQUENT EVENTS
In approximately October, in Schill’s office, Schill and Jones
conducted training sessions with all drivers on the subjects of
punch times, use of company cell phones, reading bills of lad-
ing, and pretrip and posttrip inspections.11

10 R. Exh. 53.
11 See R. Exh. 156, the October 29 training attendance form for
Zemaitis. The topics are listed, but no specifics are set out.
At both Griffith’s session on October 22 and Zemaitis’ ses-
sion on October 29, management produced cell phone record.12
Schill told each of them that they were abusing the company
cell phone policy by talking too much on their cell phones and
using them for personal reasons and/or casual conversations
with other drivers, and that the cell phones were only for emer-
gency use or to contact somebody in the company.13 Consistent
with the September 2 memorandum, Schill stated that drivers
were not to use the cell phones while they were driving, for
safety considerations.14 Both Griffith and Zemaitis responded
that the drivers used them for communicating directions and
other business-related information to other drivers.
In each session, Schill brought up pretrip and postrip inspec-
tions. He stated that pretrip inspections were supposed to take
only 30 minutes and if there was going to be a problem, to call
him or submit a written report upon returning. According to
Zemaitis, calling in for anything over 30 minutes or submitting
a written report afterward was a new requirement. Neither
Schill nor Jones testified to the contrary, and I so find. Both
Griffith and Zemaitis replied that pretrip inspections sometimes
took over 30 minutes.
Corroborating Griffith’s and Zemaitis’ accounts, Schill ad-
mittedly told them that future violations of either cell phone or
pretrip truck inspection policies would result in discipline,15
and I so find.
On October 27, Griffith initiated a conversation with Schill
in the latter’s office, with Jones also present. Griffith stated
that he wanted to talk about what Schill had said at the October
22 meeting, saying that he felt that he had been singled out and
harassed because management had spoken only to him and two
other drivers. Schill responded, “[Y]ou’re starting to piss me
off. I’m—we’re starting to regret the fact that we hired you
back in 2007.”16 Griffith asked why Schill had made those
comments, which had nothing to do with what Schill had talked
about at the earlier meeting. Schill did not reply.
Griffith filed a grievance on November 2, contending that
Schill had caused a hostile work environment by his statements
at the October 27 meeting.17 No specific contractual provisions
were referenced, and Griffith used that terminology at the be-
hest of Mixon or Business Agent Tommy Zdanowicz.
A first-step grievance meeting took place on November 8.
Griffith stated that he wanted an apology, but Schill refused.
Based on Hughes’ credited testimony, I find that they went
back and forth, that their exchange grew heated, and that
Hughes tried to calm them down. Schill asked what Griffith
wanted to do with the grievance, and Griffith responded noth-
ing at that point. The Union did not take the grievance to the
next step.
After the grievance meeting, Griffith had a conversation with
Schill outside the building. Schill stated that he had talked to

12 R. Exh. 155, Zemaitis’ cell phone usage printouts.
13 Griffith and Schill so testified, consistent with the September 2
memorandum.
14 Credited testimony of Schill and Jones.
15 Tr. 808.
16 Tr. 102.
17 GC Exh. 3.
17
CHEMICAL SOLVENTS, INC.
Pavlish, and “[w]e think it would be in your best interest to start
looking for other employment, and we are willing to offer you
some money to just walk away from Chemical Solvents.”18
Griffith asked why Schill would say that. Schill replied, be-
cause he knew some things. Griffith asked if they had an issue
with his work or abilities. Schill answered no. Griffith asked,
why then? Schill did not respond to the question but said that
Griffith needed to think about it and get back to him.
Zemaitis filed a grievance on November 2,19 contending that
Schill had caused “a hostile work environment” by his state-
ments at the October 29 meeting. Zemaitis was not aware of
any specific contractual provision but used terminology that
Zdanowicz suggested.
A grievance meeting was held on November 8, at which
Zemaitis raised two additional incidents. Thus, he told Schill
that he did not appreciate Schill’s hanging up the phone on him
when he called to have a customer informed that he was run-
ning late, and Schill’s shoving him in the lunchroom 2 weeks
earlier. Schill responded that Zemaitis was “on a very thin
rope. He was watching every move I made, and I was about to
lose my job.”20 The meeting ended without resolution of the
grievance.
Zemaitis testified that the followed morning, November 9,
Schill came up to him at the dock and said there would no
longer be any work for him by the end of the week and that
Schill wanted him out. Zemaitis asked for what? Schill re-
plied, “[F]or your lies and false accusations you made in my
office yesterday.”21 Zemaitis denied making any lies. Schill
walked away but then returned and said that he had talked to
Pavlish the preceding evening and that the Company could help
Zemaitis out with money or finding him another job but wanted
him out by the end of the week.
That same morning, Schill allegedly observed Zemaitis drive
away without properly performing a pretrip inspection, i.e., not
going inside the trailer to verify his load. Schill testified that
the main concern of pretrip inspection is safety and that secur-
ing a load must be done at both pretrip and posttrip; if a viola-
tion is observed, it is dealt with immediately as a safety issue.
However, he did not attempt to stop Zemaitis from leaving;
indeed, he testified that it did not occur to him to call Zemaitis
immediately as soon as he drove off.
On November 11, Schill issued a verbal warning to Zemaitis
his November 9 preinspection.22 Present were Zemaitis and
Hughes, and Schill and Jones. Zemaitis disputed the basis of
the warning, as reflected by his employee statement on the
warning. Schill responded that Zemaitis had just shut the doors
and pulled out but that Schill would review the camera.

18 Tr. 113.
19 GC Exh. 5.
20 Tr. 259. As previously stated, neither Zemaitis nor Schill were
completely credible witnesses, but on this point, I credit Zemaitis. I do
not believe that he would have made up these statements. I am also
convinced from the evidence, as well as Schill’s demeanor, that he was
prone to use intemperate language.
21 Tr. 270.
22 Jt. Exh. 9.
On November 12, Zemaitis filed a grievance over Schill’s’
“comments” on November 11, referring back to November 9
(possibly meaning November 8), again contending creation of a
hostile working environment.23 Schill’s issuance of the verbal
warning was not specifically mentioned in the grievance.
Zemaitis gave shifting reasons for why he filed the grievance,
particularly on cross-examination.24
A grievance meeting took place on November 19. I credit
Hughes uncontroverted testimony and find that Schill and
Zemaitis were unable to come to an agreement of “why
[Zemaitis] filed a grievance, what was the grievance about,
what comments were made,” and, consistent with what Schill
wrote on the grievance, that Schill rejected it for not being spe-
cific in nature.25 In light of this, I cannot accept Zemaitis’ tes-
timony that the grievance was “probably over the discipline,
more than the conversation.”26 Indeed, based on the language
of the grievance itself, Hughes’ testimony about the difficulty
Zemaitis had specifying its basis, and Zemaitis’ equivocal tes-
timony, I doubt that the warning was a major issue—if it was
raised at all. In any event, the Union did not take either of
Zemaitis’ grievances to the next step of the grievance proce-
dure.
Schill specifically denied stating to Zemaitis that the Com-
pany wanted him out by the end of the week, or words to that
effect, but did not specifically deny offering Zemaitis money to
leave. Nor did he specifically deny telling Griffith that the
Company wanted him out and offering him money to leave. In
view of this, other issues with Schill’s credibility, and Griffith’s
and Zemaitis’ similar but not identical testimony, I credit their
accounts and so find.
Mitchell’s Statements in April 2011
All dates in this section occurred in 2011.
Mitchell is the second-shift or night-shift supervisor over 16
employees, all of whom are in the bargaining unit. One of
them is material handler 2 Hreha.
A current employee, Hreha was clearly a reluctant witness
for the Acting General Counsel, as reflected by his statement
that “I didn’t want to come in today.”27 He appeared candid
and not to be making any deliberate efforts to slant his testimo-
ny either for or against CSI. These considerations lead me to
conclude that his testimony was reliable. I note that the Re-
spondent’s counsel brought up on cross-examination that
Hreha’s NLRB affidavit mentioned only one incident, a special
meeting, in which Mitchell threatened employees about filing
grievances, whereas Hreha testified about additional incidents
during the same time period. However, the parties stipulated
that nothing in the affidavit was necessarily inconsistent with
there having been other occasions, and I therefore do not find
that Hreha was impeached by his affidavit. Based on all of the
above, I credit Hreha’s accounts of Mitchell’s statements over
the latter’s denials.

23 GC Exh. 6.
24 See Tr. 305–309.
25 Tr. 488; GC Exh. 6.
26 Tr. 280.
27 Tr. 743.
18
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On about April 13 or 14, Mitchell and Hreha had a conversa-
tion in Mitchell’s office in the Luwa trailer. Mitchell accused
Hreha of having a bad attitude and said that he did not want
him talking to the new driver (George) whom CSI was hiring.
Hreha denied having a bad attitude, stating that he was merely
alerting new drivers of safety concerns when dealing with haz-
ardous chemicals. Mitchell told him not to talk to them and not
to let the subcontracting to outside carriers fail. Hreha ex-
plained some of the safety concerns and said that he was not
trying to scare them from doing their jobs. Mitchell responded
that he now understood what Hreha was doing, and he essen-
tially apologized. They never again had a similar conversation.
On about April 15, Mitchell conducted a special meeting
with six production employees, including Hreha, in the lunch-
room in the Luwa trailer. Mitchell brought up recent produc-
tion issues. He mentioned that a new person (George) was
being hired to work with the new drivers from outside carriers
who were coming in, and for the employees to help him be-
come familiar with the Company’s paperwork and operations.
Mitchell also told them not to complain about having to stay to
complete last-minute orders, and “don’t be filing any grievanc-
es about it, because you’ll end up like your drivers.”28 An em-
ployee asked what he meant, and Mitchell replied, “Well, you
know, your drivers don’t really have a strong union.”29
On two or so later occasions in the April time period, Mitch-
ell, in the trailer, told employees (including Hreha) on break
that if they filed a grievance, they would end up like the driv-
ers. On at least one of those instances, Mitchell “snickered and
smiled,”30 leading Hreha to believe that he was attempting to be
humorous.
Changes in Health Insurance Benefits
All dates in this section occurred in 2010 unless otherwise
indicated.
Only two witnesses testified about meetings between the Un-
ion and the Company on the subject: Mixon and Cieslinski,
who testified solely on the November 1 meeting. Their ac-
counts of that meeting were similar.
The Acting General Counsel refreshed Mixon’s memory
with notes that Business Agent and Recording Secretary Ray
Brown took at the July 29 and August 5 meetings on the Un-
ion’s behalf, but then objected to them being received as Re-
spondent’s exhibits on the basis that they constituted inadmis-
sible hearsay. I overruled those objections and admitted Re-
spondent’s Exhibits 151 and 152. In this regard, the Board
does “not invoke a technical rule of exclusion but admit[s]
hearsay evidence and give[s] such weight as its inherent quality
justifies.” Midland Hilton & Towers, 324 NRB 1141, 1141 fn.
1 (1997), citing Alvin J. Bart & Co., 236 NLRB 242, 242
(1978), enf. denied on other grounds 598 F.2d 1267 (2d Cir.
1979). Thus, hearsay evidence may be admitted “if rationally
probative in force and if corroborated by something more than
the slightest amount of other evidence.” Ibid, citing RJR Com-
munications, Inc., 248 NLRB 920, 921 (1980). Here, Mixon

28 Tr. 733.
29 Ibid.
30 Tr. 742.
testified that the notes were substantially accurate. According-
ly, I adhere to my ruling that the notes were properly admissi-
ble, with the caveat that, as Mixon testified, they did not reflect
everything that was stated at the meetings.
I note that Mixon somewhat conveniently did not recall cer-
tain facts until he was asked about them on cross-examination.
Nevertheless, I am satisfied that his unrebutted testimony, as
refreshed by the notes, was reliable, and I credit it.
Article XVI is the provision of the collective-bargaining
agreement (Jt. Exh. 1) concerning employees’ health insurance
benefits. In relevant part, it provides that unit employees re-
ceive the same health insurance benefits as all other employees
covered by the Company’s health plan, that for the term of the
agreement, the Company will pay any yearly increase in the
total premiums up to 7 percent and the employee up to 3 per-
cent, and that:
The Company has the right to obtain comparable insurance
during the term of this Agreement, but if comparable insur-
ance cannot be obtained that does not exceed the yearly caps
(7% for the Employer and 3% for the Employee), then both
the Company and the Union will reopen negotiations on
Health Insurance Coverage.
The Company’s health insurance program covered all employ-
ees, not only unit members.
By March 15, the Company was aware that in order for the
current insurer (Kaiser) to continue existing benefits, it would
raise premiums by 23 percent, with the alternative being to
increase premiums by 10 percent but reduce benefits.31 By
letter dated July 14,32 Attorney Colaluca notified Mixon that
CSI’s current health insurance contract expired on August 1,
that the provider had notified the Company that it would renew
coverage but with an increase in premiums in excess of 20 per-
cent. He then explained that over the past month, CSI had un-
successfully sought to find alternatives that would provide
similar coverage with increases in premiums that were reasona-
ble or within the 10 percent referenced in the collective-
bargaining agreement. Thus, either benefits would be reduced
or premiums increased. Colaluca referred to the contractual
provision quoted above and offered to meet and discuss alterna-
tives.
On the same date, Colaluca sent Mixon an email,33 stating
that keeping the plan the same would result in a cost increase of
23 percent, and proposing two options:
1) Accept changes to the Kaiser benefit plan that would re-
duce the total premium increase to 8.9 percent, with CSI
paying 70% of the increase, the employee 30%. Current
dental plan coverage would be eliminated, and employ-
ees would have deductibles and increased co-payments.
2) Accept the same plan and including dental insurance for
which employees would have to pay the entire premi-
ums.

31 See R. Exh. 100, a letter from Paul Catania, a health insurance
consultant, to Colaluca.
32 Jt. Exh. 2.
33 Jt. Exh. 3.
19
CHEMICAL SOLVENTS, INC.
On about July 23, the Company posted a memorandum to
employees, with attachments, advising them that maintaining
current health insurance benefits would carry a 23-percent in-
crease, that other carriers would be more expensive, and that
the Company was staying with Kaiser.34 By the terms of the
collective-bargaining agreement, CSI would pay 7 percent of
the increase, and employees 3 percent. There would be no
dental benefits under Kaiser, but such insurance would be of-
fered by Sun Life. If employees chose to opt out of CSI’s
health plan, they would be paid $3000 for a family or $1200 for
an individual, paid quarterly. The new plan would go into ef-
fect on August 1.
As reflected in one of the attachments, there would be annual
deductibles, ranging from $250 to $1500, depending on wheth-
er coverage was individual or family and on which of three
Kaiser plans was selected. Another attachment was an employ-
ee’s benefit election form, with the instruction to select Kaiser
HMO or Kaiser POS, and to elect or waive Sun Life dental
coverage, and return the form no later than July 30.
On about July 28, the Company posted a memorandum to
employees, with the same attachments as those that were with
the July 23 memorandum.35 It stated that employees needed to
fill out and submit the election form by July 30 at 3 p.m., or
they would be enrolled in the current plan without dental.
On July 29, union and company representatives met at the
Company (all subsequent meetings on health insurance took
place there). Those in attendance included Brown, Hughes, and
Mixon, Colaluca, and Schill. Mixon stated that the Union felt
the changes to the health insurance benefits were egregious and
that the Company had given the Union short notice. Mixon
asked if the Company had to make the changes and if the Union
could have an extension of time to respond. Colaluca said that
the collective-bargaining agreement gave the Company the
right to modify health and welfare benefits. Mixon agreed but
said that the changes had to be comparable. Colaluca replied
that the $30,000 cost necessary to maintain existing benefits
would have to be split 50-50 between the Company and the
employees. Mixon replied that this was unacceptable. Mixon
stated that the Union wanted to make certain that employees
would not lose dental insurance. Colaluca replied that they
would have to pay the full cost thereof.
Colaluca repeatedly said that the Company was in a dilem-
ma; unless the Union could offer assistance in resolving the
problem, the Company’s proposal was the best it could offer
because the Company was not willing to absorb the increase
necessary to maintain the current benefit structure. He re-
viewed the options described in his July 14 email to Mixon.
During the meeting, Mixon and Colaluca agreed that the prob-
lem was Kaiser and usage, and they discussed how to keep
premiums at 10 percent. Colaluca asked the Union to present a
proposal to resolve the problem, and Mixon gave him some
figures regarding the Bakers and Teamsters plan, which was
strictly for family coverage, as opposed to the Company’s plan
that provided for both family and individual coverage.
Colaluca responded that most employees were in single cover-

34 Jt. Exh. 4.
35 Jt. Exh. 5.
age and that the costs would be $800–$1000 more per person
and thus too expensive. Mixon replied that such plan offered
better benefits because it included retirees’ health benefits,
which the Company’s did not. The premium costs that the
Union quoted were over 10 percent.
Colaluca stated that Kaiser would terminate coverage on
August 1 if the Company did not agree to the increases. At the
conclusion of the meeting, the Union asked to meet with unit
members the following morning at the Company’s premises,
and Colaluca agreed. Such a meeting did take place on July 30.
During the course of that meeting, Mixon told employees that a
strike might be necessary.
On August 1, Colaluca sent Mixon an email, stating that if an
alternative plan with the same core benefits at the contractually-
agreed price could be found, CSI could opt out of the present
plan with a 30-day notice.36 He asked for dates when they
could meet. Colaluca also accused Mixon of making “incendi-
ary” statements to employees concerning a work stoppage.
On August 5, another meeting between CSI and the Union
took place. Present were Brown, Hughes, Mixon, and
Zdanowicz; Colaluca, Schill and, apparently, John Pavlish.37
Colaluca again referenced Mixon’s July 30 statements to em-
ployees about a strike. Mixon explained that he had stated that
if the contract was reopened and the parties were unable to
reach an agreement, a strike might occur. He continued to ask
the Company if it could maintain the current coverage, to which
Colaluca replied no. Schill stated that the health insurance plan
was based on usage, and many employees used it at a high lev-
el. Mixon stated that he wanted to explore cost comparison of
the Union’s plan and the Company’s plan and asked if the
Company could absorb the increased costs of the existing plan
on an interim basis, to which Colaluca again responded no.
Another meeting was scheduled for August 10.
At the August 10 meeting, Mixon presented details about the
Bakers and Teamsters plan.38 Either at this or the previous
meeting, Catania provided information that the Union had ear-
lier requested, and he answered questions.
By letter dated August 19 to Schill, Mixon requested reopen-
ing of the contract on health insurance, pursuant to article
XVI.39 Colaluca responded by an undated letter that he created
on August 23, in which he opined that the parties were already
engaged in negotiating health insurance provisions, stated that
he had attempted without success to contact Mixon on numer-
ous occasions to discuss the subject, and offered to meet at
mutually convenient times to continue discussions.40
At a union meeting on August 25, Cieslinski, Hughes, and
Anthony Porter were elected to be on the Union’s negotiating
committee.
A meeting was scheduled on September 24 or 25 but did not
take place because not everyone on the Union’s negotiating
committee showed up. It was rescheduled for November 1.

36 Jt. Exh. 6.
37 R. Exh. 153, p. 1.
38 See R. Exh. 132.
39 Jt. Exh. 7.
40 R. Exh. 34. See Tr. 1185.
20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the November 1 meeting, Mixon and Zdanowicz, and
maybe Brown, as well as the three drivers named above, at-
tended for the Union. John Pavlish and Schill represented CSI.
Mixon stated that the employees had a right to strike because
the Respondent had violated the contract. He detailed his prob-
lems with the new plan and reminded them of the Union’s reo-
pener. Schill said that without Colaluca or Pavlish being pre-
sent, he lacked authority and that he would talk to Pavlish and
get his ideas. The meeting ended with Schill stating that he
would contact Mixon or Zdanowicz to set up another meeting.
No further meetings or other negotiations occurred.
CSI went with the health insurance program in which bene-
fits were not comparable but the Company absorbed all of the
increases in premiums. Company-paid dental and life insur-
ance benefits were eliminated. These changes went into effect
on September 1, Kaiser having agreed to a 1-month extension.
Installation of New Surveillance Cameras in
August–September 2010
All dates in this section occurred in 2010.
The pertinent facts are basically uncontroverted, since
Cieslinski, Hughes, and Schill were not inconsistent in relating
what occurred. Dr. Dattilo, CSI’s consultant on compliance
with various environmental regulations, testified on his recom-
mendations regarding the new surveillance cameras (the camer-
as). The Acting General Counsel did not dispute his credentials
as an expert witness, and I have no reason to doubt them or his
overall truthfulness. Accordingly, I credit his testimony.
Nothing in the collective-bargaining agreement specifically
addresses surveillance cameras or security in general. The
Respondent admits that it did not notify or bargain with the
Union over the cameras’ installation. One camera had been in
place at Jennings for approximately 7 or 8 years. It oversaw the
parking lot and entrance thereto. Dennison had no such camer-
as prior to August. Each facility has a separate parking lot used
by employees. For at least 7 years, a sign at the entrance to
each parking lot had read, “Warning TV camera system is mon-
itored and recorded 24 hours a day.”41
In March, through Dattilo, CSI filed a site security plan with
DHS, one component of which was detection of threats. DHS’
preferred means of detection is closed-circuit television camer-
as. Prior to making the report, he recommended that CSI install
additional camera, additional lighting, and cyber-security en-
hancement, having come to the conclusion that they were need-
ed to comply with DHS standards. He later notified DHS that
CSI had taken these steps.
Pursuant to Dattilo’s recommendation, four new cameras
were installed at Jennings,42 and nine at Dennison.43 All were
mounted on telephone poles by lighted areas so that they were
clearly visible. Some faced areas where drivers and other unit

41 R. Exh. 71.
42 See R. Exh. 158, a schemata of Jennings. Camera locations and
their fields of view are marked at C1–C5. C1 shows the preexisting
camera; the others the new cameras.
43 See R. Exh. 160, a schemata of Dennison showing the same in-
formation as R. Exh. 158, at C1–C9. C5 overlooks the Luwa trailer and
a row of hazardous waste totes.
employees worked, including the main warehouse, storage
warehouse, docks areas, some entryways, and the Luwa trailer.
The cameras were fixed focus and did not have the capability of
being able to zoom in. None had an audio component.
Installation of the new cameras began in approximately mid-
August and was completed in approximately mid-September.
Cieslinski filed a grievance on November 22, contending that
they were being used to evaluate employees’ job performances,
not for security reasons.44 He testified that he based this con-
clusion on where the cameras were placed. No evidence sup-
ports this assertion.
Phasing Out and Closing of the Trucking Division
I. LANGUAGE IN THE COLLECTIVE-BARGAINING AGREEMENT
Provisions in the labor agreement relevant to this section are
as follows. Article II, paragraph 1 is the management-rights
clause. It starts off with the statement, “The management of the
business in all of its phases and details shall remain vested in
the Employer.” Paragraph 1 goes on to provide that the Com-
pany has the right to:
(13) [C]onsolidate, merge, or otherwise transfer any
or all of its facilities, property, or processes or work with
or to any other entity . . . .
(14) [T]erminate or eliminate all or any part of its
work or facilities.
Article I, paragraph 3 contains a “zipper clause” stating, inter
alia, the parties’ acknowledgement that during the negotiations
which preceded the agreement, each had the unlimited right and
opportunity to make demands and proposals and that their un-
derstandings and agreements arrived at after the exercise of that
right and opportunity were set forth in the agreement.
Article III, paragraph 1 guarantees 40 hours pay to employ-
ees who report to work on 5 days in any given week.
Subcontracting or outsourcing of work is not per se ad-
dressed in the agreement. It is undisputed that in contract nego-
tiations in 2007, the Union proposed a new provision:45
The Company will not, so long as equipment and personnel
are available, subcontract work which is customarily per-
formed by employees in the bargaining unit to any other of its
plants or branches or to any other company’s plants or
branches. The Company is absolutely prohibited from using
the employees of another Employer to perform any bargain-
ing unit work.
The Company’s rejection of that provision is also undisputed.
The disagreement is over Mixon’s testimony that he said the
purpose of the language was to memorialize existing practice.
Mixon was inconsistent on Attorney Colaluca’s response, first
testifying that Colaluca replied that practice was embodied in
article XIV, paragraph 1 and that the proposed second para-
graph was unnecessary but then, after equivocating, that the
Company made no comment on the paragraph but simply said

44 GC Exh. 15.
45 R. Exh. 12, p. 126 (art. XIV, par. 2). Art. XIV became art. XIII in
the 2007–2012 agreement.
21
CHEMICAL SOLVENTS, INC.
no.46 Nothing in the provision mentions past practice; drivers
Gloden and Griffith were consistent in testifying that there were
special situations when CSI did outsource driving to other
companies; and CSI provided records showing use of carriers in
2008 and 2009. Accordingly, I do not credit Mixon either as
far as his making the statement or to its actually reflecting
CSI’s practices at the time of the negotiations.
II. THE TRUCKING OPERATION PRIOR TO AND AFTER
NOVEMBER 5, 2010
I first turn to the witnesses on this matter. As stated earlier,
Hughes was a credible witness, and I credit him. I note that his
testimony about Schill’s responses to the grievances that were
filed on the subject was consistent with Schill’s. Gloden ap-
peared candid, and nothing in his testimony was contradictory
or implausible; his testimony about Turn-To’s driver at the
facility comported with Pat Pavlish’s. Therefore, I credit him
as well. Although Griffith’s testimony on one point was incon-
sistent, he was otherwise internally consistent, plausible, and
consistent with Hughes and Gloden. Accordingly, I credit all
other aspects of his testimony herein. I credit Gloden and Grif-
fith where their testimony conflicted with Schill’s.
Drivers used two types of CSI-owned equipment: tractors
(also called cabs), the driving units, and trailers (vans and tank-
ers), the pulling units, all of which were covered by a master
insurance policy.47 Prior to November 5, 2010, CSI had nine
drivers, whom Jones dispatched on a daily basis. They had no
fixed customers. A computer-generated daily drivers manifest
(DDM) was prepared by Jones the previous evening and
showed drivers’ assignments for the day. A number of copies
of the manifest were run off and maintained at various locations
within the facility, so that drivers had access to it when they
arrived for work in the morning. It contained a variety of in-
formation, including the driver, driving and pulling units, start
time, list of customers, and the quantities or amounts delivered
or picked up. DDMs, which are not required by law, were and
are normally kept for about 3 months and then discarded.
Not all shipments were reported on the DDMs that Jones
prepared. These included shipments out of the recycling de-
partment and commodities division, and bulk or freight waste
shipments out of the shipping department. The Company used
outside carriers to carry out freight waste because the Company
had elected not to buy the special equipment needed. Drivers
only infrequently transported freight waste, when necessary.
Further, some trucks were usually loaded in the evening and did
not appear on the DDM.
Prior to November 5, 2010, several different carriers were
occasionally used, if a job was outside of the drivers’ normal
geographical area, there was too much work for the drivers to
handle, or a customer specifically requested a particular carri-
er.48 Additionally, nonunit drivers handled less-than-a-
truckload deliveries, which drivers took only occasionally.

46 Tr. 655–656.
47 See GC Exh. 22.
48 See R. Exh. 2, a shipping log of carriers that CSI used during the
period from April 2008–May 2009; R. Exh. 111, invoices showing
Thomas Freight deliveries to CSI customers on September 2–4, 2009.
During the last few years of the drivers’ employment, their
geographical area was Indiana, Michigan, New Jersey, Ohio,
Pennsylvania, and West Virginia. During the 6-month period
prior to November 5, 2010, drivers worked between 55 and 60
hours a week (the DOT maximum is 60). The carriers, at least
generally, used their own equipment, not CSI’s.
Driver Haught filed a grievance on March 20, 2009, concern-
ing outsourcing to Thomas Transport that day; Schill denied it
with the explanation that it was “more cost effective.”49 Nei-
ther the grievance nor the Company’s response referenced any
provision in the labor agreement.
The only time that a carrier was utilized on a recurring basis
before November 5, 2010, was on November 9 and 19, 2009,
when All Pro drivers were used for three deliveries.50 In late
November or early December 2009, the drivers initiated a
meeting with Pavlish, Schill, and Jones. They voiced their
concerns about contract drivers coming in on a daily basis to
perform their work and how that would affect their jobs.
Pavlish did most of the talking. He stated that the Company
was exploring its options (“testing the waters”) regarding the
use of carriers.51 He also stated that management was trying to
cut down on what they thought was too much drivers’ overtime.
A driver produced safety records relating to All Pro, and
Pavlish responded that he would analyze everything and make a
decision. The drivers also raised concerns over the safety
and/or age of certain CSI trailers, and Pavlish replied that he
would fix or replace them. During the meeting, Pavlish com-
plimented the drivers for their good job. Within a couple of
weeks afterward, All Pro drivers were no longer used. No
grievance was filed.
Starting on November 5, 2010, and continuing thereafter on
a regular basis, All Pro Freight drivers hauled some of the de-
liveries that drivers normally performed.52 Within a month or
two, CETCO and DistTech drivers were also at the facility.
Beginning in approximately October 2011, a Turn-To driver
operated out of the facility. As time went on, carriers increas-
ingly replaced drivers, who were laid off in stages.53 At first,
the carriers drivers used their own tractors but pulled CSI trail-
ers; later, they used their own trailers. In the beginning, the
names of carriers were not included in the DDM, but eventually
they were.
Eleven grievances were filed over the use of contract drivers
in lieu of drivers between October 4, 2010 and January 31,
2011.54 Zemaitis filed the first of these, and Gloden later filed
three, Ray Fink and David Lahner two each, and Thomas Ben-
edict and Griffith one each. Griffith’s was the last. One griev-
ance was filed on behalf of “all drivers.”

49 GC Exh. 23.
50 See R. Exh. 153, p. 1.
51 Testimony of Griffith at Tr. 155.
52 R. Exh. 153, pp. 1–6.
53 See, e.g., GC Exh. 24, the DDM for August 18, 2011, showing
two DistTech drivers, four CETCO drivers, one All Pro driver, and
three drivers. See also GC Exh. 31, copies of CETCO’s invoices for
services performed for CSI from March 7–May 6, 2011.
54 GC Exh. 17.
22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
These grievances contended in various ways that the Com-
pany had violated the labor agreement by using carriers to per-
form unit work when the driver had not reached 40 hours for
the week. At each meeting, Schill responded that the agree-
ment did require that the driver receive 40 hours but that the
Company had the right to outsource the work.
By letter dated February 4, Schill notified Mixon that three
drivers were being laid off pursuant to articles I and VII of the
labor agreement.55 Each employee would receive 1 week’s
severance plus any accrued benefits, or a position within the
bargaining unit. He requested a decision by February 11 or
would assume they would take the severance package. He also
offered to meet to discuss the effects of the layoff. The position
within the bargaining unit was not specified, but Schill in-
formed them it would be as a material handler 3 in the shop.
This was the entry-level classification for material handler and
paid less than the drivers were making. Of the nine drivers, one
retired, three resigned, and five were laid off. None of them
accepted the offer of continued employment. The deadline for
response was subsequently extended.
CSI laid off drivers as follows:
1) Benedict, Lahner, and Zemaitis on February 4, 2011.
2) Cieslinski on April 20, 2011.
3) David Mayer on November 23, 2011.
4) Gloden on December 16, 2011.
III. CSI’S EXPLORATION OF USE OF OUTSIDE CARRIERS
Chris Haas of All Pro appeared candid, and his testimony
was internally consistent and not contradicted by other evi-
dence of record. He presently does some work for CSI, but I do
not believe that he skewed his testimony in its favor. I take into
account that he was questioned in detail about a series of com-
munications with CSI that occurred over a duration of more
than 1-1/2 years, leading to some natural diminution of recall.
Accordingly, I credit him and find as follows.
All Pro is engaged in providing transportation, warehousing,
and distribution for approximately 350 companies across the
country. It employs about 150 drivers and has also utilized
drivers contracted from a freight-brokerage company.
In 2009, John Pavlish advised Haas that Pavlish might have
some trucking opportunities. Haas called Schill and they had a
first meeting in about March 2009, at which Schill stated that
he knew All Pro provided dedicated services to several Cleve-
land-area companies. He explained CSI’s setup and wanted to
know what All Pro could do. He emphasized that CSI wished
to reduce costs in certain areas, including trucking. Haas said
that he could provide trucking services, either fully or partially.
At some point, possibly at that meeting, Schill stated that CSI
wanted a quote for trucking work aside from the dedicated
fleet.
They held a second meeting in about July 2009. Schill asked
where Haas was with the quote. Haas asked for more infor-
mation to come up with a cost structure. Schill provided him
with the numbers of drivers and equipment. At the time, Haas

55 Jt. Exh. 15 (also R. Exh. 1). He sent an identical letter, other than
dates, upon the subsequent layoffs.
did not know if All Pro would buy or lease CSI’s equipment or
use it at all. Schill provided further information at the next
several meetings they had in September and November 2009.56
In about November 2009, Haas provided a rough sketch of
savings in costs of fuel and labor.57 By that time, he had a good
idea of CSI’s labor and insurance costs. Months passed before
he had further contact with Schill.
Haas and Schill resumed meeting in 2010 on the subject of
All Pro taking over CSI’s fleet. They discussed different pric-
ing options and different requirements. In about November
2010, they talked about the different permits that All Pro would
need. At the December 13, 2010 meeting they discussed price
structures, insurance, and where the savings would be for CSI.
Schill continuously asked about cost savings. In Haas’ experi-
ence, it is not unusual for negotiations about taking over a fleet
to go on for a year or more.
During this period, All Pro was not transporting hazardous
waste for any companies, and transporting hazardous waste for
CSI did not come up in 2009. Haas did not look into it until
probably toward the end of 2010, at which time he ascertained
that because backhauling hazardous waste required specialized
permits and extra insurance, it would be cost ineffective for All
Pro. Thus, at the end of December 2010, he told Schill that All
Pro could not handle the waste, and discussions broke down
concerning All Pro taking over the fleet. All Pro has continued
to provide CSI with long-haul drivers to fill in in delivering
nonhazardous material.
I credit Schill’s testimony as follows. Even prior to the
breakdown of those negotiations, Schill explored with CETCO
and Thomas Freight of their taking over some or all of the
trucking operation.58 He followed the same process as with
Haas. In late December 2010, he reached a verbal agreement
with Andy Ilcin of CETCO to take over dry-freight or nonbulk
work, with bulk work to continue to be performed by CSI driv-
ers or DistTech drivers. The CSI/CETCO agreement was not
reduced to writing until August 1, 2011.59 Schill testified the
delay was the result of both sides needing to make certain that
CETCO knew and could perform the functions specified by the
agreement, and that CETCO was phased in. At the time of the
oral agreement, CETCO lacked the necessary hazardous waste
permits for backhauling waste but was in the process of obtain-
ing them and later did.
Schill was not a credible witness as far as his role in negotia-
tions for leasing or purchasing CSI’s vehicles. He first testified
that he did not handle any such negotiations but merely sup-
plied equipment lists, but he later expanded the scope of his
involvement to providing lists and answering questions.60 Ei-
ther way, his testimony was contradicted by a series of emails
between him and Ilcin from March 24 to April 1, 2011.61

56 See R. Exh. 14, Haas’ daily appointment book.
57 See R. Exh. 154.
58 This testimony is corroborated by R. Exh. 45, a letter dated March
16, 2009, from Thomas Transport to Schill and Jones, setting out rate
quotes for deliveries to four locations that Schill had identified.
59 R. Exh. 80.
60 Tr. 822, 824.
61 GC Exhs. 25–28.
23
CHEMICAL SOLVENTS, INC.
Schill initiated the email chain with the question, “Would you
be interested in leasing our van trailers and if so I have no idea
what do you charge?” and in fact discussed terms and condi-
tions with Ilcin over the following week.
Schill was also in communication with John Rakoczy of
DistTech in November 2010, as reflected by their exchange of
emails on November 11 and 12.62 Schill first testified that he
did not discuss the Union with him.63 However, that testimony
was utterly impeached by the emails. Thus, in the first such
email, Rakoczy asked, “Would you be insistent that all of your
drivers be assumed if an outsource situation would occur? I am
looking at ways to approach the business, while mitigation the
union constraints.” Schill replied, “Does not have to include
our drivers.” Rakoczy’s next email stated that DistTech would
try to get around “the union issue,” to which Schill responded,
“We do not want union drivers in here.”
IV. THE DECISION TO CLOSE THE TRUCKING DIVISION
Schill was evasive when questioned about when he learned a
final decision had been made to terminate the trucking division,
never giving a definite date or even timeframe.64 Nonetheless,
his testimony contradicted Pavlish’s as far as the timing of the
final decision, one of the reasons I find that Pavlish was only
partially credible.
Bob Debevec, an accountant for CSI, also testified on this
matter. He appeared candid and not to be making efforts to
slant his testimony in the Company’s favor. For example, he
carefully delineated his role in preparing documents for CSI
and made it clear that CSI rather than he determined certain
figures therein. Accordingly, I find his testimony reliable and
credit it.
Debevec is the owner and sole owner of Clearpoint Partners,
an accounting business. CSI has been one of his clients since
August 2005. He primarily assists the Company in closing
books on a monthly basis, doing special projects, and com-
municating information to CSI’s outside accountants for prepa-
ration of financial statements. He analyzes financial infor-
mation at the request of CSI’s management but does not pro-
vide projections.
Respondent’s Exhibit 157 contains summaries of trucking
costs for the years 2008, 2009, and 2010, which Debevec pre-
pared. He prepares such reports annually, typically in February
or March after the end of the year. The document reflects that
total trucking costs went down from $1,836,642 in 2008 to
$1,512,289 in 2009 and $1,497,076 in 2010.
Respondent’s Exhibit 56 is a memorandum that Debevec
prepared in April 2009 at the request of Pavlish and Pat Pavlish
to analyze the cost of a potential plant reorganization. At the
time, Pavlish said that he was contemplating a reorganization to
make the plant more efficient but did not elaborate. Pavlish
estimated that the reorganization would cost $3 million.
Debevec estimated that they could borrow about two-thirds
from a bank, with CSI having to finance the balance.

62 See GC Exh. 13.
63 Tr. 394.
64 See Tr. 370–372.
Pavlish’s testimony that he made the decision to terminate
the trucking division in “probably February 2009”65 was unreli-
able. He testified that prior to making the decision to close the
trucking division, he reviewed the above documents prepared
by Debevec. However, Respondent’s Exhibit 56 was prepared
in April 2009. Additionally, Schill contradicted Pavlish by
testifying that as of late 2010, CSI had still not made a definite
decision to subcontract out all of the trucking work; rather,
“[T]hat [was] the direction we were headed in . . . .”66 Their
testimony about the conversations they had about needed re-
placement of vehicles was also inconsistent.
Moreover, Pavlish’s testimony that “[w]e always knew we
lost money in trucking. . . . I never realized that it was . . . this
substantial”67 struck me as artificial and unbelievable, coming
from the sole owner.
I credit Pavlish’s unrebutted testimony on the following and
so find. In past years, Pavlish closed two other divisions be-
cause they were not making money. He anticipated saving
about $300,000 a year by terminating the trucking division.
V. THE CURRENT OPERATION
CETCO performs most of the work that drivers used to per-
form; All Pro and DistTech the balance. These carriers assign
and direct contract drivers and provide vehicles with their own
logos, which they dispatch to the facility to pick up shipments
for delivery. Jones sets up the delivery schedules on the DDM.
He normally contacts the contract drivers by going through
their company representatives but, if necessary, can communi-
cate directly with them.
By the terms of its agreement with CSI (R. Exh. 80),
CETCO is responsible for providing drivers and equipment,
including vehicle maintenance and repair, licenses, insurance,
workers’ compensation, and compliance with government regu-
lations. These were all costs to CSI when it had an in-house
trucking division. CETCO initially used CSI equipment, which
was later sold to Turn-To and then leased to CETCO. I will say
more about this in the section on Turn-To.
I rejected the Respondent’s proffered expert witness testimo-
ny from William Joquith that after the elimination of the Com-
pany’s trucking operation, CSI has realized cost savings. His
after-the-fact assessment ipso facto could not have played any
part in the Company’s decision and, in any event, would not
serve to insulate the Respondent from any findings that it oth-
erwise committed ULPs. Accordingly, his testimony would not
have assisted in deciding the issues herein and was properly
excluded. See Federal Rule of Evidence 702.
VI. THE RELATIONSHIP BETWEEN CSI AND TURN-TO
All dates in this section occurred in 2011 unless otherwise
indicated.
Pat Pavlish was the primary witness regarding Turn-To and
its relationship with CSI. She appeared straightforward and
answered questions readily and without any apparent effort to
slant her responses. In this regard, I note that she volunteered

65 Tr. 1201.
66 Tr. 371.
67 Tr. 1202.
24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the information that Pavlish is a 50-percent partner in the cor-
poration that owns the building in which Turn-To leases space.
Her testimony was also consistent with that of the Acting Gen-
eral Counsel’s witnesses and other evidence of record. Accord-
ingly, I find that she was a reliable witness, and I credit her
testimony. Debevec also offered testimony relating to Turn-To
vis-à-vis CSI, which testimony I have no reason to doubt.
Therefore, I find the following.
Pat Pavlish was first employed by CSI as a buyer in 1982.
For the past 10 years, she has been secretary/treasurer and
served in an administrative role. She remains a paid employee
of CSI, as secretary/treasurer. She has a general oversight re-
sponsibility over accounting, but in recent years has not han-
dled day-to-day accounting activities, a role performed by Con-
troller Brian Cahill. She has not had an office at CSI since
1988 and has no desk there. Her interaction with unit drivers
was only occasional and casual; she had no supervisory authori-
ty over them and played no part in grievance handling.
In late May, she decided to become involved in the for-
mation of Turn-To and used Attorney Colaluca to set up the
corporation. Cahill also assisted her in establishing and operat-
ing Turn-To and served as a conduit between her and Ilcin in
their exchange of documents. Pat Pavlish is its sole owner and
handles all of the bookkeeping aspects of the business. It main-
tains one office, in Euclid, Ohio, where the only equipment is
office-related, including a personal computer on which Pat
Pavlish conducts all of Turn-To’s business. When she is away,
the office is closed. Turn-To leases space from E & G, LLC,
which owns the building. Pavlish is a 50-percent partner in that
company.
Turn-To has had only one employee, Jonathan Brown, a
driver, who was hired in September and has never worked for
CSI. He performs over-the-road or overnight pickups and de-
liveries of materials hauled in chemical truck (over-the-road
service). Brown comes to the Turn-To office when he need to
be in the office but otherwise is on the road all of the time. In
contrast, drivers worked out of the plant, making deliveries and
returning. Brown hauls chemicals to Turn-To and to other
companies through a broker, Dave Sindel of TransChem, who
is responsible for dispatching him. Sindel also performs bro-
kering for CSI. Pat Pavlish does not directly do any brokering.
Brown’s geo-graphical area includes the Chicago, Illinois,
Newark, New Jersey, and Philadelphia, Pennsylvania metropol-
itan areas; and Florida, Tennessee, and Texas. He takes the
tractor home with him when it is not being used, and he takes
the tankers either home or to the CSI facility. He hauls in
chemicals for CSI but does not carry out CSI products.
Turn-To’s only other business activity has been sell-
ing/leasing vehicles to CETCO. Pat Pavlish set up these ar-
rangements directly with Ilcin of CETCO, without assistance
from Schill. Their negotiations began in about October or No-
vember. She does not have a leasing arrangement with any
other company.
General Counsel’s Exhibit 32 is the sale/purchase agreement
dated July 25, pursuant to which Turn-To bought vehicles from
CSI for just short of $400,000. Pavlish signed for CSI; Pat
Pavlish for Turn-To. A payment of $252,000 was due within
60 days, with the balance due in 1 year, with accrued interest at
a rate of 5 percent per annum from the date of sale. The shaded
areas on pages four and five show which vehicles Turn-To later
leased to CETCO. Turn-To paid CSI the $252,000 as per the
agreement.68
Debevec prepared a portion of Respondent’s Exhibit 136, a
summary of the vehicles that CSI sold to Turn-To. Thus, he
calculated depreciation as of June 30, using the Company’s
depreciation schedules, but did not determine the selling prices.
Based on the parties’ stipulation and Pat Pavlish’s testimony,
I find as follows. Of the 10 tractors listed in the exhibit, 1 is
being used by Turn-To, 6 are owned by Turn-To and leased to
CETCO, and 3 were sold, at least 2 to a used-truck broker who
has no connection with CSI; that of the 10 box trailers listed,
Turn-To uses 1, leases 6 to CETCO, and sold 3 to CETCO; and
that of the 8 listed tankers, Turn-To uses 2 and has 6, situated at
the CSI facility, that are not in use. The vehicles that CETCO
purchased or leased are housed at the CSI facility, were they
are loaded at night.
Respondent’s Exhibit 79 is the tractor/trailer lease agreement
between Turn-To and CETCO, effective August 1. CETCO is
responsible for all maintenance, taxes, insurance, licenses, and
miscellaneous fees. Turn-To has no written agreement with
CSI concerning the housing of its vehicles. There is an agree-
ment between the two companies, dated August 25, whereby
CSI may use Turn-To’s vehicles, if available, for specified
rates.69
VII. UNION REQUESTS FOR BARGAINING/INFORMATION
All dates in this section occurred in 2011.
By letter of January 3 to Mixon, Attorney Colaluca notified
the Union that CSI would be closing its trucking operation,
based on business/economic considerations.70 He stated that
CSI was willing to discuss any alternatives that the Union could
offer and that the decision affected only the drivers, not other
unit employees.
By letter dated January 19 to Colaluca, Mixon responded
that Union did not consent to the action and viewed it as a
ULP.71 He enclosed a class-action grievance, dated January 19,
alleging that the announced permanent outsourcing of truck
driving work violated various provisions of the collective-
bargaining agreement and constituted an unlawful unilateral
change. Mixon requested bargaining over the decision and its
effects and in 99 paragraphs, requested a wide variety of docu-
ments, to be furnished no later than January 29. Mixon pre-
pared the letter after consulting with Attorney Petroff.
I will not address items that the Union later withdrew or for
which there is no dispute that CSI provided information. Fol-
lowing are the extant items, and why, Petroff testified, the Un-
ion requested them. Unless otherwise specified, the timeframe
was since January 2002. “Entity” refers to any entity or person
CSI has used to perform drivers’ work, as stated in the request.

68 See R. Exh. 139.
69 R. Exh. 138.
70 Jt. Exh. 10. The parties stipulated that the date January 3, 2010,
was an inadvertent error.
71 Jt. Exh. 11.
25
CHEMICAL SOLVENTS, INC.
1. Documents which formed any part of the basis for the
decision to close the trucking operations.
2. Documents related to the decisions to transfer the work
and to whom.
3. Documents relating to operating and financial plans dur-
ing the past 5 years.
4. Documents of any pertinent meetings at which closure
was discussed and written communications announcing
their results.
5. Documents which had an impact on the decision to close
its trucking operation.
6. Financial records for the last 5 years for the Company
and its various operations.
7. Financial records for the latest period for the Company
and its various operations.
8. Documents showing the volume of orders for trucking
operations on a monthly basis.
10. Daily dispatch sheets or assignment sheets.
11. List of all routes and drivers on a monthly basis.
12. An accounting on each route on a monthly basis.
15. Documents showing the amount, date, and type of
equipment and machinery used by employees that has
been sold or shipped out to other companies.
16. Documents showing all unit work that has been subcon-
tracted and/or relocated out to outside contractors.
17. Documents showing efforts to offer outsourced routes or
runs to unit driver and why CSI considered them una-
vailable to drive.
18. Documents relating to the sale, lease, or other transfer of
equipment once used by unit drivers.
19. Documents relating to the actual and/or estimate cost per
employee for unit driving work.
20. Definitions of the geographic area of CSI, All Pro, and
other entities used in the past 5 years.
22. The business phone numbers and directory listings of
All Pro and such other entities.
23. Banking information pertaining to CSI, All Pro, and
such other entities.
24. Documentation pertaining to the maintenance of busi-
ness records of CSI, All Pro, and such other entities.
25. The principal accountant of CSI, All Pro, and such other
entities.
26. The license number(s) and other registration numbers of
CSI, All Pro, and such other entities.
28. Taxpayer identification, workers compensation, and un-
employment numbers for CSI, All Pro, and such other
entities.
29. Identification and description of any funds transferred
for the past 5 years between CSI and any such entity.
30. Sources and amounts of credit for All Pro or any such
other entity.
35. Businesses that use tools or equipment of CSI, All Pro,
or any such other entity.
36. Businesses to whom CSI, All Pro, and other entities sell,
rent or lease equipment or tools.
37. Businesses from whom CSI, All Pro, and other entities
buy, rent, or lease equipment or tools.
38. Equipment transactions for the past 5 years between
CSI, All Pro, and other entity.
39. Specific information relative to item 38.
40. D, G, & N—who is performing warehousing, truck driv-
ing, and supplies and equipment functions
41. D. G. & N —warehousing, truck driving, and supplies
and equipment services provided by All Pro.
42. Customers during the last 5 years of CSI, All Pro, and
any other entity.
43. Customers All Pro has referred to SI.
44. Which customers of All Pro are customers of CSI.
45. For such customers, the dollar volume of work per-
formed over the last 5 years for CSI, All Pro, and any
other entity.
46. Persons who bid or negotiate work for CSI, All Pro, and
any other entity.
47. Customers for which CSI, All Pro, and any other entity
have worked together in the last 5 years.
49. Customers for whom work has succeeded by CSI, All
Pro, and any other entity.72
50. Work performed on the products or jobs of CSI, All Pro,
and any other entity.
51. Names and other information regarding employee of
CSI, All Pro, and any other entity.
52. Names and other information regarding employees of
CSI who have been employees of any entity.
53. Employees transferred between CSI and All Pro and any
other entity.
54. The work such employees were performing at the time
of transfer.
59. Management personnel of CSI employed by CSI, All
Pro, and any other entity.
61. The representative(s) of CSI, All Pro, and any other enti-
ty who establish or control labor relations policy.
63. Copies of the articles of incorporation and other corpo-
rate documents and financial reports for CSI, All Pro,
and any other entity, over the past 5 years.
64. Any document jointly produced or used by CSI, All Pro,
and any other entity, concerning wages and conditions of
employment, and business operation.
65. A description of the business of CSI, All Pro, and any
other entity.
66. Copies of standard independent contractor agreements
with drivers and/or owner-operators of CSI, All Pro, and
any other entity.
67. Copies of any less than arm’s-length-transactions be-
tween CSI, All Pro, and any other entity, over the last 5
years.
68. A list and description of all deliveries performed by All
Pro.
70. What holiday days will be paid to employees prior to
their layoff?

72 See Tr. 560.
26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71. Do any unit employees have unpaid claims for bereave-
ment leave?
72. Do any unit employees have unpaid claims for sick
leave?
73. Are any unit employees out on jury duty?
74. Employees who have earned but not used vacation
leave, and will they receive accrued vacation pay?
75. List of employees presently on leave of absence.
76. List of employees who have any unpaid back pay com-
pensation (related to the findings of another agency).
78. List of employees on layoff, with various information,
including whether they are receiving any benefits.
79. A list of unit employees presently contesting discipline.
80. A list of the unit employees presently on workers com-
pensation.
81. A list of employees who have unpaid life insurance
claims.
86. Oral or written side agreements between CSI and unit
employees.
90. All job postings and the names of unit employees who
refused a job or did not prove satisfactory in doing the
job.
98. Contractual language, proposals, and other information
supporting CSI’s position that is privileged to contract
out the work or that CSI intends to use at arbitration.
99. Other documents relating to the changes in question up-
on which management relied in denying the class-action
grievance.
Below are the reasons Petroff testified that the Union re-
quested the above information.
Items 1–6—to enable the Union to bargain over the decision
to terminate the trucking operation and its effects, and to
demonstrate that the decision was based on retaliatory motives.
7–12—to allow the Union to bargain over the decision to
outsource, with 8 also relating to the class action grievance.
15—to bargain over the decision to subcontract.
16–20—to assist in the investigation of the class action
grievance and to bargain over the outsourcing decision.
22–30—to establish the relationship that the Respondent had
with the outsourcing employers and to determine whether the
subcontractors’ employees were arguably in the bargaining
unit.
35—to assist in the investigation of the class action griev-
ance and to show a retaliatory motive for the Respondent’s
decision to outsource the work.
36–39—to process the class action grievance and to show the
relationship between the Respondent and any subcontractors.
40 D, G and N—to bargain over the Respondent’s decision
to subcontract.
41 D, G, and N—to assist in the investigation of the class-
action grievance.
42–45—to investigate the grievances and to determine
whether bargaining unit work was being performed by others.
46–47—to show the relationship between the Respondent
and its subcontractors.
49–50—to investigate the class action grievance and to
prove damages related to the unlawful outsourcing of bargain-
ing unit work.
51—to bargain over the decision to subcontract and to de-
termine the number of non-bargaining unit employees used to
perform bargaining unit work.
52–54—to show the relationship between the Respondent
and its subcontractors who were performing bargaining unit
work
59, 63, and 64—to investigate whether the Respondent and
its subcontractors were single and/or joint employers.
65—to bargain over the decision to contract and to ensure
that the subcontractors maintained the proper permits to per-
form bargaining unit work.
66—to investigate the grievance and to bargain over the Re-
spondent’s decision to subcontract.
67–68—to determine the relationship between the Respond-
ent and its subcontractors, and to process the class action griev-
ance.
70–81, 86—to engage in effects bargaining relative to holi-
day pay, vacation pay and bereavement, union dues payments,
wages, workers’ compensation, lay off, and overtime.
90—to negotiate over the decision to subcontract and to re-
solve the class-action grievances.
98—to negotiate the decision to subcontract, to obtain in-
formation about bargaining unit work, to process the class ac-
tion grievances and to determine whether ULP charges should
be filed.
99—to assist in the processing of the class-action grievance.
By letter of January 25 from Colaluca to Mixon, the former
stated that the request for information was overbroad and in
most cases irrelevant.73 He offered to provide information as to
the effects of the layoffs of the bargaining unit, e.g., severance
pay and retirement benefits, by February 4. He further stated
that the Company was prepared to meet regarding effects, sug-
gesting several dates. I accept Colaluca’s testimony that his
including the dates of January 24 and 25 was an inadvertent
error and not reflective of malicious intent. Finally, Colaluca
denied the class-action grievance over the subcontracting on the
basis that the labor agreement authorized the Company’s con-
duct.
Attorneys Colaluca and Petroff had a lunch meeting on about
January 27. Colaluca stated that he considered the Company’s
subcontracting to be a nonmandatory subject, to which Petroff
responded that he disagreed with Colaluca’s legal interpreta-
tion. Petroff testified that Colaluca indicated that the Company
would not bargain over the decision to close the trucking opera-
tion. Colaluca denied saying that the Company was unwilling
to discuss the subject of subcontracting. Their testimony is not
necessarily inconsistent. No bargaining over the decision to
subcontract or its effects has ever occurred. The Union never
proposed any alternatives.
By letter of January 28 to Colaluca, Petroff disputed state-
ments that Colaluca made in his January 25 letter about the
information request, and asked for more specific responses.74 In

73 Jt. Exh. 12.
74 Jt. Exh. 13.
27
CHEMICAL SOLVENTS, INC.
addition to those documents, Petroff requested other infor-
mation pertaining to the decision to outsource, set out in 17
paragraphs. He reiterated the Union’s request to bargain over
the decision and its effects and to take the class-action griev-
ance to a second-step hearing under the contractual grievance
procedure. The letter referenced a January 28 letter from
Mixon, but it is not in the record.
By letter of January 31 to Petroff, Colaluca stated that they
had a major disagreement over whether the labor agreement
permitted CSI to transfer work and that CSI’s position was that
since the contract expressly permitted such, it was under no
obligation to engage in bargaining over the decision or to pro-
vide any information regarding such decision.75 He asked if
Petroff’s reference to a second-step hearing was a request to
proceed to arbitration.
By letter of February 4, Colaluca emailed Mixon nine at-
tachments responsive to the Union’s January 19 information
request insofar as it pertained to the effects of the decision to
subcontract or to lay off unit employees.76 He stated that some
of the requests asked for lists that CSI did not maintain, infor-
mation that CSI did not have, or information that was within
the Union’s possession. He went on to say that the information
being provided were responsive to items 9, 13 and 14, 21, 27,
55, 60 and 61, 70–85, 87–89, and 91–97.
With a hand-delivered letter of March 10, Colaluca provided
Petroff with the same information in flash-drive form because
there was a question of whether all of it had been received
through the earlier email.77
The Company never provided any information in response to
the Union’s January 28 request. The parties stipulated that
Respondent’s Exhibit 123 contains all of the information that
the Respondent furnished to the Union regarding subcontract-
ing and health insurance.
The Acting General Counsel concedes that the Respondent
provided some of the information relating to effects bargaining
but avers that as far as effects bargaining, the Respondent vio-
lated Section 8(a)(5) by not providing information responsive
or fully responsive to items 1–6, 70–76, and 78–81 (Br. 44–45).
Paragraphs 1–6, on their face, related to the decision to subcon-
tract, despite Petroff’s testimony. As to the other paragraphs,
the Acting General Counsel points to the Respondent’s failure
to furnish information relating to holiday pay, bereavement
leave, sick leave, jury duty, vacation, leave of absence, unpaid
compensation, workers’ compensation, and unpaid life insur-
ance claims. Such information is not contained in Respond-
ent’s Exhibit 123.
At trial, I reviewed certain documents proffered by the Re-
spondent and rejected them under Federal Rule of Evidence
408, concluding that they constituted efforts by the Union and
the Company to settle the outstanding ULPs and related griev-
ances, and their introduction would serve no other purposes.
Promoting settlement is a strong public policy engrained
throughout our entire legal system, and great care must be taken
to avoid discouraging parties from engaging in attempts to re-

75 Jt. Exh. 14.
76 Jt. Exh. 16.
77 GC Exh. 18.
solve disputes between themselves and without the need for
litigation. Accordingly, I have not considered those documents.
Analysis and Conclusions
The 8(a)(1) Allegations
In 8(a)(1) cases, the Board’s task is to determine how a rea-
sonable employee would interpret the employer’s action or
statement and whether the conduct would reasonably tend to
interfere with, threaten, or coerce employees in the exercise of
their Section 7 rights, taking into account the surrounding cir-
cumstances. Roomstore, 357 NLRB No. 143, slip op. at 1 fn. 2
(2011); Lutheran Heritage Village-Livonia, 343 NLRB 646,
646 (2004).
I. DID SCHILL, ON OCTOBER 27, 2010, THREATEN GRIFFITH
WITH UNSPECIFIED REPRISALS BECAUSE HE ENGAGED IN
UNION/PROTECTED ACTIVITY?
Griffith, who initiated the meeting, accused management of
singling out and harassing him and two other drivers by calling
only them in for “training” sessions. Schill responded that
Griffith was starting to “piss [him] off” and that the Respondent
was starting to regret rehiring him in 2007. Griffith asked why
Schill had made those comments, to which Schill did not reply.
The question here is whether Griffith would reasonably have
construed Schill’s remarks as a veiled threat of reprisal because
he had engaged in union/protected activity in 2007 (he did not
file a grievance in 2010 until after the October 27 meeting). I
also take into account the Respondent’s argument (Br. at 74)
that such activity was remote in time vis-à-vis the conversation.
On the other hand, I have to consider that Griffith suffered
discharge from employment as a result of the 2007 work stop-
page, that Schill sua sponte raised what had occurred, and that
Schill expressed animosity and regret at rehiring him in 2007 in
the same breath. In my view, this conveyed the implicit mes-
sage that Griffith’s prior activity could be resurrected as a basis
for further actions against him.
The legality of Griffith’s discharge in 2007 was never litigat-
ed, since the ULP charge concerning it was withdrawn after he
was reinstated, nor was the issue of whether the work stoppage
itself violated either the law or the collective-bargaining
agreement. Accordingly, there is no way to assess after-the-
fact whether any union activity in which he engaged in connec-
tion with the work stoppage was in fact protected or unprotect-
ed. Nonetheless, Schill’s statement could reasonably have been
construed to refer to Griffith’s status as a union steward in
2007, which most certainly was protected activity, regardless of
the status of the work stoppage. To the extent that Schill’s
statement was ambiguous, Griffith could reasonably have con-
strued the threat as relating, at least in part, to his protected
union activity. See Ellison Media Co., 344 NLRB 1112, 1114
fn. 5 (2005); Armstrong Machine Co., 343 NLRB 1149, 1152
(2004).
Accordingly, I conclude that the implicit threat of unspeci-
fied reprisals was on account of protected activity in which
Griffith had engaged in 2007, to wit, his status as a union stew-
ard, and that it therefore violated Section 8(a)(1).
28
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. DID SCHILL, ON OCTOBER 27 AND 29, 2010, RESPECTIVELY,
THREATEN DRIVERS GRIFFITH AND ZEMAITIS WITH DISCIPLINE
IF THEY VIOLATED COMPANY POLICIES REGARDING DRIVERS’
PRETRIP INSPECTION OF TRUCKS AND CELL PHONES, IN
RETALIATION FOR THEIR UNION/PROTECTED ACTIVITY?
Schill admittedly told both Griffith and Zemaitis that they
could be disciplined for failing to comply with the above poli-
cies. The key question is whether Schill’s statements would
have caused Griffith and Zemaitis to reasonably believe that
they resulted, in whole or part, from their union/protected activ-
ity.
As noted above, at the October 27, 2010 meeting, Schill
raised Griffith’s 2007 rehire and, indirectly, Griffith’s prior
status as a steward, in connection with an implied threat of
termination. In this context, Schill’s warning Griffith for the
first time that he would be disciplined for violating those poli-
cies would reasonably have led Griffith to believe that the
threat related, at least in part, to his protected status as a former
union steward.
Accordingly, I conclude that Schill violated Section 8(a)(1)
by warning Griffith that he would be disciplined for violating
company rules regarding cell phone use and preinspections,
because of Griffith’s union/protected activity.
Prior to the October 29, 2010 meeting, Zemaitis had filed a
grievance over use of outside carriers. However, in contrast to
Griffith’s October 27 meeting, nothing that Schill said at the
meeting with Zemaitis either directly or indirectly had any con-
nection with the Union or Zemaitis’ union/protected activity. I
do not believe that Zemaitis would have had a reasonable belief
that Schill’s threats related thereto. I will later address the ver-
bal warning he received regarding a pretrip inspection.
Therefore, I recommend dismissal of this allegation.
III. DID SCHILL, ON NOVEMBER 8, 2010, THREATEN
ZEMAITIS WITH DISCHARGE BECAUSE HE HAD ENGAGED
IN UNION/PROTECTED ACTIVITY?
This allegation concerns statements that Schill made at a
meeting over the grievance Zemaitis had filed on November 2,
alleging Schill had created a hostile work environment. As
earlier noted, Zemaitis’ testimony about why he filed that
grievance was shifting. In any event, Schill made the statement
that Zemaitis was “on a very thin rope” and “about to lose [his]
job” immediately after Zemaitis complained about Schill hang-
ing up on him that morning when he called to have a customer
told that he was running later, and Schill’s shoving him in the
lunchroom 2 weeks earlier. Thus, Schill’s remarks were clearly
in the context of conduct having nothing to do with the Union
or Zemaitis’ protected activity of filing grievances on October 4
or November 2. Ergo, I fail to see a nexus between the threat
and Zemaitis’ protected activity.
Therefore, I recommend dismissal of this allegation.
IV. DID SCHILL, ON NOVEMBER 8 AND 9, 2010, RESPECTIVELY,
SOLICIT GRIFFITH AND ZEMAITIS TO RESIGN AND OFFER
THEM MONEY TO RESIGN, IMPLIEDLY THREATENING
DISCHARGE, BECAUSE THEY HAD ENGAGED IN
UNION/PROTECTED ACTIVITY?
I credit Griffith and Zemaitis that Schill solicited them to re-
sign and offered them money to resign. The issue is whether
that related to union/protected activity.
As to Griffith, Schill made the statements shortly after a
heated first-step grievance meeting. Schill began by saying
that he had talked to Pavlish. They thought it would be in his
best interest to look for other employment and were willing to
offer him some money “just to walk away.” Griffith asked
why. Schill replied, because he knew some things. Griffith
asked if they had an issue with his work or abilities, and Schill
answered no. Griffith asked, why then? Schill did not respond.
Thus, Schill’s explanation of why management wanted Grif-
fith was ambiguous and did not state a cogent valid reason. In
fact, Schill denied that it had anything to do with Griffith’s
work or abilities. Accordingly, Griffith could reasonably have
concluded that it related, at least in part, to his union or other
protected activity, i.e., his filing of a grievance and/or his prior
status as a union steward, particularly in light of Schill’s prior
threat on October 27. See Ellison Media Co., above; Armtrong
Machine Co., above.
As to Zemaitis, Schill made his statements soliciting
Zemaitis to resign and offering him money to do so, because of
his “lies and false accusations” at the previous day’s grievance
meeting. These apparently related to Zemaitis’ accusations
concerning Schill hanging up on him and shoving him in the
lunchroom—conduct wholly unrelated to protected activity.
Nevertheless, Schill directly referred to what was stated during
the course of the meeting on Zemaitis’ grievance over Schill’s
creating a hostile work environment. Thus, Schill’s statements
were ambiguous insofar as they could reasonably have led
Zemaitis to believe that they resulted, at least in part, from his
protected activity of filing a grievance. See Ellison Media Co.,
above; Armtrong Machine Co., above.
The Respondent contends (Br. at 55, et seq.) that the No-
vember 2 grievance was, along with others alleging a hostile
work environment, filed for the purpose of harassment and
therefore did not enjoy protected status, citing Exxon Mobil
Corp., 343 NLRB 287 (2004), revd. 432 F.3d 715 (7th Cir.
2005), and Caterpillar Tractor Co., 242 NLRB 523 (1979).
Both cases are distinguishable. Although the administrative
law judge in Caterpillar cited the above precept, she, inter alia,
found protected an employee who filed numerous repetitive
grievances over a 2-1/2-month period and did not dismiss any
allegations on the basis that the grievances were unprotected.
In Exxon Mobil, the Board found that a grievance filed by a
steward was merely subterfuge for circulating a confidential
report and timed to affect a decertification petition, clearly
illegitimate ends.
29
CHEMICAL SOLVENTS, INC.
Filing a grievance under the grievance-arbitration provision
of a collective-bargaining agreement is an indispensable ele-
ment of represented employees’ rights and only in exceptional
circumstances should be considered to have lost its normal
protection. That Zemaitis’ grievance was vague as to what
provisions of the contract were allegedly violated, the language
of the grievance was suggested by the Union, the grievance
may have lacked merit, or the Union did not take the grievance
to arbitration are insufficient reasons, in the absence of other
factors showing bad faith, to strip an employee of his or her
right to seek redress through the contractual grievance proce-
dure.
Accordingly, I conclude that Schill violated Section 8(a)(1)
by soliciting Griffith and Zemaitis to resign and offering them
money to resign—an implied threat of discharge—because they
had engaged in union/protected activity.
V. DID MITCHELL, ON ABOUT APRIL 15, 2011, AND LATER IN
APRIL, THREATEN SHOP EMPLOYEES WITH LAYOFF
AND/OR DISCHARGE IF THEY FILED GRIEVANCES UNDER
THE COLLECTIVE-BARGAINING AGREEMENT?
On two or three occasions in April 2011, Mitchell told shop
employees in groups that if they filed grievances, they would
end up like the drivers (who were in the process of being re-
placed by contract drivers). Since the standard for finding a
statement coercive is an objective one and not based on the
speaker’s intent or state of mind, the fact that Mitchell might
have made those statements in jest is irrelevant.
Accordingly, I conclude that Mitchell violated Section
8(a)(1) by threatening production employees with layoff and/or
discharge if they filed grievances under the collective-
bargaining agreement.
VI. DID MITCHELL, ON ABOUT APRIL 13 OR 14, THREATEN
HREHA WITH UNSPECIFIED REPRISALS BECAUSE HE HAD
ENGAGED IN PROTECTED ACTIVITY BY ADVISING
SUBCONTRACTORS’ DRIVERS OF THE SAFETY ISSUES
INVOLVED IN HANDLING HAZARDOUS MATERIALS?
In this conversation, Mitchell accused Hreha of having a bad
attitude and told him not to talk to a new drivers they were
hiring. Hreha denied having a bad attitude, stating that he was
merely alerting new drivers of safety concerns when dealing
with hazardous chemicals. Mitchell told him not to talk to
them and not to let the subcontracting fail. When Hreha ex-
plained some of the safety concerns and said that he was not
trying to scare them, Mitchell responded that he now under-
stood, and he apologized.
I fail to see any threats, of unspecified reprisals or otherwise,
in what Mitchell told Hreha. In any event, after Hreha ex-
plained his safety concerns, Mitchell immediately retracted
what he had said. The subject was never again mentioned be-
tween them.
In light of the above circumstances, I find no merit to this al-
legation and recommend its dismissal.
Zemaitis’ November 11, 2010 Verbal Warning as an
8(a)(3) Violation
All dates in this section occurred in 2010.
The framework for analyzing alleged violations of Section
8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under
Wright Line, the General Counsel must make a prima facie
showing sufficient to support an inference that the employee’s
protected conduct motivated an employer’s adverse action. The
General Counsel must show, either by direct or circumstantial
evidence, that the employee engaged in protected conduct, the
employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took
action because of this animus. In more recent decisions, the
Board has essentially construed the last element as requiring
only an adverse employment action, specifically rejecting the
construction that the General Counsel must establish a link or
nexus between the protected activity and the employer’s action.
See Prexair Distribution, Inc., 357 NLRB No. 91, slip op. at 1
fn. 2 (2011); see also Gelita USA Inc., 352 NLRB 406, 406 fn.
2 (2008).
Under the Wright Line framework, if the General Counsel
makes a prima facie case of discriminatory conduct, it meets its
initial burden to persuade, by a preponderance of the evidence,
that protected activity was a motivating factor in the employer’s
action. Once this is established, the burden of persuasion shifts
to the employer to show that it would have taken the same ad-
verse action even in absence of the protected activity. NLRB v.
Transportation Corp., 462 U.S. 393, 399, 403 (1983);
Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002);
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127
F.3d 34 (5th Cir. 1997) (per curiam).
To meet this burden, “an employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano
Painting, 332 NLRB 1363, 1366 (2000), citing Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984).
If the employer’s proffered defenses are found to be a pre-
text, i.e., the reasons given for the employer’s actions are either
false or not, in fact, relied on, the employer fails by definition
to show that it would have taken the same action for those rea-
sons, and there is no need to perform the second part of the
Wright Line analysis. As the Board stated in Rood Trucking
Co., 342 NLRB 895, 898 (2004):
A finding of pretext defeats any attempt by the Re-
spondent to show that it would have discharged the
discriminatees absent their union activities. This is be-
cause where “the evidence establishes that the reasons
given for the Respondent’s actions are pretextual—that is,
either false or not in fact relied upon—the Respondent
fails by definition to show that it would have taken the
same action for those reasons, absent the protected con-
duct, and thus there is no need to perform the second part
of the Wright Line analysis.” Golden State Foods Corp.,
340 NLRB 382, 385 (2003).
See also SFO Good-Nite Inn, LLC, 352 NLRB 268, 269 (2008).
On the other hand, further analysis is required if the defense is
one of “dual motivation,” that is, the employer defends that,
even if an invalid reason might have played some part in the
30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer’s motivation, the employer would have taken the
same action against the employee for permissible reasons.
Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212,
223 (D.C. Cir. 2005).
Here, Zemaitis filed two grievances prior to November 11,
one on October 4 relating indirectly to use of outside carriers;
the other on November 2, concerning Schill’s statements at the
October 29 training meeting. A grievance meeting on the latter
took place on November 8, and on November 9, Schill threat-
ened Zemaitis with termination and offered him money to quit
because of his “lies and false accusations” at the previous day’s
grievance meeting. On November 11, Schill issued Zemaitis a
verbal warning for not having properly conducted a pretrip
inspection on November 9. Based on these facts, I conclude
that the Acting General Counsel has established a prima facie
case under Wright Line.
I note with respect to animus that the timing of the issuance
of the warning—just 3 days after the grievance meeting and 2
days after Schill threatened Zemaitis with discharge—further
supports reliable and competent evidence of unlawful motiva-
tion. See Davey Roofing, Inc., 341 NLRB 222, 223 (2004);
Power Equipment Co., 330 NLRB 70, 74 (1999).
Based on the following, I conclude that the Respondent’s
proffered defense was a pretext. Schill testified that the main
concern of pretrip inspection, properly securing a load, is safety
and that if a violation is observed, it is dealt with immediately.
Despite this contention, he further testified that he observed
Zemaitis drive away on November 9 without having properly
performed a pretrip inspection but admittedly did not stop him
from leaving the facility at the time. Indeed, Schill testified
that it did not even occur to him to call Zemaitis immediately as
soon as he drove off but instead allowed him to depart and
enter the public streets and highways, wholly undercutting
Schill’s testimony that what Zemaitis allegedly did constituted
a serious safety issue justifying a warning. Further, Schill of-
fered no explanation of why he waited 2 days to bring the inci-
dent to Zemaitis’ attention.
Significantly, prior to October 2010, no driver was ever dis-
ciplined for not properly conducting a pretrip inspection. The
one documented incident that the Respondent has provided
involved driver Haught, who was disciplined in July 2005 after
the Ohio PUC levied a fine of over $1600 because he was
found to have a mislabeled and unsecured drum at a weight
station. That incident was certainly far more serious than what
occurred on November 9 and cannot be considered analogous.
Therefore, I cannot deem it as an example of similar discipline
being imposed in the past.
In view of the above, I find that the proffered reason for
Zemaitis’ warning was a mere pretext and that antiunion ani-
mus motivated the Respondent’s action: retaliation against him
because he had filed grievances under the collective-bargaining
agreement. Accordingly, no further analysis of the Respond-
ent’s defenses is necessary.
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(3) and (1) when it issued a verbal warning to Zemaitis
on November 11, 2010.
Closing of the Trucking Division
It is undisputed that prior to November 2010, consistent with
the language of the labor agreement, the Respondent used con-
tract drivers to perform bargaining unit work in certain circum-
stances, such as when honoring customer requests, unit drivers
were unavailable or approaching their maximum legal hours, or
on as-needed basis. However, this use of subcontractors was
not the same as the Respondent’s phasing out of the entire
trucking division and, concomitantly, replacing all unit drivers
with contract drivers.
As articulated in Bob’s Big Boy Family Restaurants, 264
NRB 1369, 1370 (1982), a legal distinction is made between
classic subcontracting and partial closing. Briefly put, an em-
ployer’s decision to contract out bargaining unit work is a man-
datory subject of bargaining and triggers the obligation to bar-
gain over both decision and effects. Fibreboard Paper Prod-
ucts Corp. v. NLRB, 379 U.S. 203, 210–212 (1964); O.G.S.
Technologies, Inc., 356 NLRB No. 92 (2011); Torrington In-
dustries, 307 NLRB 809 (1992). On the other hand, an em-
ployer’s decision to terminate all or a portion of its business is
not a mandatory subject of bargaining. Textile Workers v. Dar-
lington Mfg. Co., 380 U.S. 263, 267, 274–275 (1965); Lenz &
Riecker, 340 NLRB 143, 144 (2003).
As the Board stated in Bob’s Big Boy Family Restaurants:
The distinction between subcontracting and partial
closing . . . is not always readily apparent. Thus, it is in-
cumbent on the Board to review the particular facts pre-
sented in each case to determine whether the employer’s
involves an aspect of the employer/employee relationship
that is amenable to resolution through bargaining with the
union since it involves issues “particularly suitable for
resolution within the collective bargaining framework.” If
so, Respondent will be required to bargain over its deci-
sion. If, however, the employer action is one that is not
suitable for resolution through collective bargaining be-
cause it represents “a significant change in operations,” or
a decision lying “at the very core of entrepreneurial con-
trol,” the decision will not fall within the scope of the em-
ployer’s mandatory bargaining obligation. [264 NLRB at
1370, footnotes omitted.]
Factors to be examined are the nature of the employer’s busi-
ness before and after the action taken, the extent of capital ex-
penditures, the bases for the action, and, in general, the ability
of the union to engage in meaningful bargaining in view of the
employer’s situation and objectives. Id.
In Bob’s Big Boy Family Restaurants, above, the Board, in
finding that the employer had subcontracted certain work
(shrimp processing) rather than engaged in a partial closing,
noted at the outset that:
[The] Respondent did not engage in what can be objec-
tively termed a major shift in the direction of the Compa-
ny. Both before and after the subcontract, Respondent en-
gaged in the business of providing prepared foodstuffs to
its various stores. Indeed, it appears that Respondent still
supplies process shrimp to its constituent restaurants. The
only difference is that the processing work is now pre-
31
CHEMICAL SOLVENTS, INC.
formed by Fishking employees pursuant to the subcontract
rather than by Respondent’s employees. Accordingly, the
nature and direction of Respondent’s business was not
substantially altered by the subcontract. [Id., footnotes
omitted.]
Secondly, the Board noted that when the subcontracting ar-
rangement became operative, the respondent was not required
to engage in any substantial capital restructuring or investment,
that the plant area devoted to shrimp processing remained part
of the respondent’s facility, and that the respondent retained
substantial ownership of the equipment that had been used in
shrimp processing. Id.
Finally, the Board concluded that a review of the respond-
ent’s objectives in subcontracting the shrimp processing re-
vealed that the respondent’s concerns (escalating costs and
portion control) were “of the type traditionally suitable for reso-
lution through the collective-bargaining process.” Id. [footnote
omitted]. The Board stated:
As the Court noted in Fibreboard, production cost
matters, which by their very nature include wages, fringe
benefits, and other employment costs, over which the un-
ion can exercise substantial control, are “particularly suit-
able for resolution within the collective bargaining frame-
work . . . . [Id., footnote omitted.]
In O.G.S. Technologies, Inc., supra, the Board engaged in a
similar analysis in concluding that the respondent’s termination
of a portion of its operation constituted subcontracting that
required bargaining over both the decision and its effects.
Consistent with this approach, the Sixth Circuit Court of Ap-
peals in Calatrello v. Automatic Sprinkler Corp. of America, 55
F.3d 208, 213 (6th Cir. 1995), citing Fibreboard, above, found
that the Board had produced sufficient evidence that the com-
pany’s subcontracting decision was a mandatory subject of
bargaining because (i) the company in effect substituted the
subcontractors’ employees for its own, (ii) the Company con-
tinued to engage in the same line of business; and (iii) the local
unions had substantial control or authority over the basis for the
company’s subcontracting decision, i.e., labor costs.
Here, CSI sold all of its vehicles (other than two automo-
biles) to Turn-To, which still owns 7 of the 10 tractors, 7 of the
10 box trailers, and all of the 8 tankers. Significantly, six of
these tankers, which are not in use, are housed at the CSI facili-
ty, and there is no evidence of any contract between CSI and
Turn-To regarding this.
Although Pavlish testified that he was planning a restructur-
ing of his entire operation and putting significantly more money
into his mixing division, no evidence was introduced to show
any such investment at or around the time that the trucking
division was closed. Nor is there any evidence that the compa-
ny changed the nature of its business, that its customer base
changed, or that carriers’ drivers now perform work that was
different than that performed by CSI’s drivers.
I do credit Pavlish to the extent that I believe the motive be-
hind closing the trucking operation was financial, rather than
based on antiunion animus. I will discuss this further below.
The fact that Pavlish decided to terminate the trucking opera-
tion because of costs does, on the other hand, buttress the con-
clusion that the Respondent had an obligation to engage in
bargaining over the decision itself, as per the Board decisions
and court cases cited above.
The next issue is whether the Respondent is correct in argu-
ing that the management-rights language in article II, paragraph
1 constituted a waiver of the Union’s right to bargain over ter-
mination of the trucking operation and the layoffs of all unit
drivers.
Waiver of statutory lights is not to be lightly inferred but in-
stead must be clear and unmistakable. Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 709 (1983); Federal Compress &
Warehouse Co. v. NLRB, 398 F.2d 631, 636 (6th Cir. 1968);
Quality Roofing Supply Co., 357 No. 75 (2011); General Elec-
tric Co., 296 NLRB 844, 844 (1989). Proof of contractual
waiver is an affirmative defense, and it is the respondent’s bur-
den to show that the contractual waiver is explicitly stated,
clear, and unmistakable. Metropolitan Edison Co., supra at
708; AlliedSignal Aerospace, 330 NLRB 1216, 1228 (2000),
review denied sub nom. Honeywell International, Inc., 253
F.3d 125 (2001).
To meet this standard, the contract language must be specif-
ic, or it must be shown that the matter claimed to have been
waived was fully discussed by the parties and that the party
alleged to have waived it rights consciously yield its interest in
the matter. Allison Corp., 330 NLRB 1363, 1365 (2000); Tro-
jan Yacht, 319 NLRB 741, 742 (1995). As to the former, the
Board looks to the precise wording of the relevant contract
provisions. Allison Corp., ibid; KIRO, Inc., 317 NLRB 1325,
1327 (1995).
In other words, waivers can occur by express provision in the
collective-bargaining agreement, by conduct of the parties (in-
cluding past practices, bargaining history, and action or inac-
tion), or by a combination of the two. American Diamond
Tool, Inc., 306 NLRB 570, 570 (1993).
In terms of the Union’s conduct, nothing in the bargaining
history or the Union’s actions in and after November 2010
demonstrates waiver. Indeed, the Union unsuccessfully at-
tempted in 2007 negotiations to insert a provision prohibiting
subcontracting. The record does not reflect any discussions
during negotiations about complete closure of the trucking
division. Therefore, I do not deem the Union’s proposal on
subcontracting, its rejection by the Respondent, and its subse-
quent withdrawal by the Union, or anything else that occurred
in the 2007 negotiations, to amount to a waiver by the Union of
bargaining over subcontracting of the entire trucking operation.
Nor do I deem the Respondent’s limited use of outside drivers
to perform unit work prior to 2009 to be a past practice relevant
to the waiver issue, since the subcontracting of some unit work
is not equivalent to closing the trucking operation and laying
off all unit employees.
The pertinent language in the labor agreement is a different
matter. Thus, the management-rights clause specifically and
unambiguously provide that CSI has the right to “transfer any
or all of its . . . . work . . . to any other entity” and to
“[t]erminate or eliminate all or any part of its work or facili-
ties” (emphasis added). This language is akin to language that
32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Board found to be a waiver in Allison Corp., supra at 1365
(“[T]he management-rights clause specifically, precisely, and
plainly grants the Respondent the right ‘to subcontract’ without
restriction.”). Indeed, it is difficult to imagine parlance that
could be any broader as far as granting the Respondent the right
under the contract to close a particular operation.
This differs from a situation in which the management right
might reasonably be inferred from the clause but is not support-
ed by clear and unmistakable language. See, e.g., Owens-
Brockway Plastics Products, 311 NLRB 519, 525 (1993).
Reece Corp., 294 NLRB 448, 452 (1989), which the Acting
General Counsel cites (Br. at 26), is distinguishable. In that
case, the management-rights clause referred to permanent clo-
sure but did not address the conduct in which the employer
engaged, to wit, transfer of production and equipment to anoth-
er company facility. Here, in contrast, express contractual lan-
guage covers the Respondent’s actions.
Accordingly, I conclude that the Union waived the right to
engage in bargaining over the decision to terminate the trucking
division, and recommend dismissal of the allegation that the
Respondent violated Section 8(a)(5) by failing and refusing to
bargain there over.
I now turn to the Respondent’s obligation to engage in bar-
gaining over the effects of the decision. The parties’ briefs
focus on the issue of bargaining over the decision and do not
specifically address effects bargaining as a separate issue.
As distinct from bargaining over a decision itself, effects
bargaining is intended to provide a union with an opportunity to
bargain in the employees’ interest for such benefits as sever-
ance pay, payments into pension funds, preferential hiring,
reference letters, health insurance, and retraining funds. Na-
perville Jeep/Dodge, 357 NLRB No. 183, slip op. at 6 fn. 8
(2012); Allison Corp., 330 NLRB 1363, 1370 fn. 14 (2000);
Yorke v. NLRB, 709 F.2d 1138, 1143 (1973), cert. denied 465
U.S. 1023 (1984).
When the management-rights clause allows the employer to
make unilateral transfers of work from one plant to another but
is silent with respect to the duty to bargain over the effects, it
must bargain over the latter. NLRB v. Challenge-Cook Bros. of
Ohio, Inc., 843 F.2d 230, 233 (6th Cir. 1988); Allison Corp.,
above at 1366. The Respondent has never contended to the
contrary, and correspondence between the parties demonstrates
its willingness to engage in effects bargaining. The Union ap-
pears to have concentrated on what it viewed as the Respond-
ent’s obligation to engage in bargaining over the decision and
its effects together rather than attempt to negotiate separately
over the effects. Leaving aside the issue of whether the Re-
spondent failed to provide requested information relevant to
effects bargaining, discussed hereinafter, I cannot conclude that
the Respondent failed and refused to bargain over the effects of
the decision to terminate the trucking division.
The Layoffs of Drivers as an 8(a)(3) Violation
I set out earlier the Wright Line framework used to analyze
alleged violations of Section 8(a)(3).
The Acting General Counsel avers that the replacement of
the drivers starting on November 5, 2010, was motivated by
their filing of grievances and by Mixon’s statements about a
possible strike. The Acting General Counsel does not specify
which grievances, but three were filed in 2010 prior to Novem-
ber 5: Zemaitis’ October 4 grievance over his hours, and
Zemaitis’ and Griffith’s November 2 grievances over their
training sessions with Schill. Mixon made statements about a
possible strike at a meeting with employees on July 30 and at
the August 5 and November 1 meetings with management over
health insurance.
The filing of grievances under a collective-bargaining
agreement is undoubtedly a protected activity, as the Supreme
Court observed in NLRB v. City Disposal Systems, Inc., 465
U.S. 822, 836 (1984). See also OPW Fueling Components v.
NLRB, 443 F.3d 490, 496 (6th Cir. 2006); Roadmaster Corp.,
288 NLRB 1195, 1197 (1988). Further, since Mixon was act-
ing as a bargaining agent of the unit employees, his conduct can
appropriately be considered to have derived from their exercise
of their Section 7 right to representation.
The Respondent clearly had knowledge of these activities,
and thus the Acting General Counsel has shown their occur-
rence and employer knowledge.
Animus is the next element. I have found that the Respond-
ent threatened Griffith and Zemaitis at least in part because of
their union/protected activity, threatened shop employees with
being laid off if they filed grievances as the drivers had, and
issued a verbal warning to Zemaitis in violation of Section
8(a)(3). These actions demonstrated animus. Schill’s email
stating that “[w]e do not want union drivers in here” referred to
DistTech drivers who might be replacing CSI drivers and not
necessarily to the latter, but I will consider it as further evi-
dence of animus.
The Acting General Counsel avers a pattern of CSI’s anti-
union animus from the start of the collective-bargaining rela-
tionship in 1997 (Br. 11–12) but cites only a single case, Chem-
ical Solvents, Inc., 331 NLRB 706 (2000), which the adminis-
trative law judge heard in March 1998. I find such ULPs too
remote in time to be considered probative. The Acting General
Counsel also points to the unrebutted testimony of Griffith that
Pavlish and his son, John, expressed anger at the 2007 work
stoppage. However, the legality or illegality of that work stop-
page was never adjudicated. Accordingly, I do not rely on any
history of animus in concluding that sufficient animus has been
shown for purposes of showing a prima facie case.
The final element needed to establish a prima facie case is
that the Respondent took action because of the animus. That
the Respondent laid off all of the unit drivers starting in Febru-
ary 2011 is undisputed.
Having found that the Acting General Counsel has made out
a prima facie case, I turn to the second prong of Wright Line
and whether the Respondent has met its burden of persuasion of
demonstrating that the same action would have taken place
even in the absence of the protected conduct. The following
factors cause me to answer that it has. I emphasize that the
credited testimony of Haas and Debevec has played a substan-
tial part in this determination.
The drivers constituted less than 20 percent of the unit, and
the Respondent continues to have approximately 40 employees
(production and maintenance) represented by the Union.
33
CHEMICAL SOLVENTS, INC.
Moreover, the Respondent offered the drivers positions as pro-
duction employees in lieu of layoff, albeit at a lower remunera-
tion.
The Respondent in November 2009 first experimented with
using contract drivers in place of drivers and, indeed, Pavlish
told drivers at that time that he was “testing the waters” as far
as utilizing contract drivers to perform unit work. The record
further reflects that starting in 2009, the Respondent engaged in
ongoing discussions with several contract carriers concerning
contracting out such work and closing the trucking division.
Neither the protected activities nor their timing support the
Acting General Counsel’s contention that the closing of the
trucking operation related to the drivers’ filing of grievances, or
strike threats, to wit, Mixon’s remarks at a meeting of drivers
on healthcare on July 30 and at two meetings with manage-
ment, on August 5 and November 1.
Of the three grievances filed in 2010 prior to November 5,
Zemaitis filed two, and Griffith one. Two on their face were
specific to the employee and without ramifications for the driv-
ers in general. The October 4 grievance concerning Zemaitis’
hours of work preceded the phase-out of drivers by a month.
As to pre-2010 grievances over use of carriers, only one was
filed in March 2009. No grievance was filed over the use of
All Pro in November 2009. No grievances filed before Sep-
tember 2010 ever went to arbitration.
As to strike threats, it is true that Attorney Colaluca ex-
pressed the Respondent’s dismay that Mixon had mentioned a
strike possibility at his meeting with employees on July 30 and
that the Respondent’s use of contract drivers on a regular basis
began on November 5, only a few days after Mixon’s last
statement about a strike. However, in neither of his two con-
versations with management on the subject of a strike did
Mixon say that there would be one or even that one was likely.
Rather, on the first occasion, he explained that he had told em-
ployees that there could be a strike, depending on what hap-
pened over negotiations over health insurance benefits, in an
apparent effort to allay the Respondent’s concerns. In the se-
cond conversation, he merely opined that the employees had a
right to strike because the Respondent had violated the contract.
No employees engaged in any kind of strike or work stoppage
after 2007, and there is no evidence that any employees threat-
ened or even mentioned such actions to management at any
time in 2010.
In view of the above factors, I find it incredulous that the fil-
ing of the grievances or Mixon’s statements about strikes moti-
vated Pavlish’s decision to terminate the trucking division, after
its 40 years or so existence, 13 of them as a unionized opera-
tion. Such a reaction would hardly have been reasonable, and
nothing on the record leads me to believe that Pavlish would
have had such an overblown reaction to the grievances and/or
statements that he would have been more eager to retaliate
against the drivers than in doing what was financially best for
his company.
In all of these circumstances, I conclude that the Respondent
has rebutted the Acting General Counsel’s case by evidence
showing that it would have terminated the trucking division and
laid off drivers for bona fide business purposes even absent the
employees’ protected activities. See Palace Sports & Enter-
tainment, Inc., above.
Therefore, I recommend dismissal of this allegation.
Failure to Furnish Information About the Closing
of the Trucking Division
An employer is obliged to supply information requested by a
collective-bargaining representative that is necessary and rele-
vant to the latter’s performance of its responsibilities to the
employees it represents. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
To trigger this obligation, the requested information need only
be potentially relevant to the issues for which it is sought.
Pennsylvania Power & Light Co., 301 NLRB 1104, 1104–1105
(1991); Conrock Co., 263 NLRB 1293, 1294 (1982).
In analyzing relevance, requested information that relates di-
rectly to represented employees’ terms and conditions of em-
ployment is presumptively relevant. Beverly Health & Rehabil-
itation Services, 328 NLRB 885, 888 (1999); Samaritan Medi-
cal Center, 319 NLRB 392, 397 (1995). Since a bargaining
representative’s responsibilities include the administration of
the collective-bargaining agreement and the processing and
evaluating of grievances there under, information requests per-
tinent to a union’s decision to file or process grievances are
presumptively relevant, and an employer is obliged to provide
information that is requested for the handling of grievances.
Acme Industrial, supra at 436; Beth Abraham Health Services,
332 NLRB 1234, 1234 (2000); Safeway Stores, 236 NLRB
1126 fn. 1 (1978).
In determining whether such a burden has been met at the
trial level, the Board applies a liberal, discovery-type standard.
Hamilton Sundstrand, 352 NLRB 482 (2008), Disneyland
Park, above. The General Counsel can establish relevance by
presenting evidence that either (1) the union demonstrated the
relevance of the information, or (2) the relevance of the infor-
mation should have been apparent to the employer under the
circumstances. Ibid. The burden is not “an exceptionally
heavy one, requiring only a showing be made of a ‘probability
that the requested information is relevant, and that it would be
of use to the union in carrying out its statutory duties and re-
sponsibilities.’” Public Service Electric & Gas Co., 323 NLRB
1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998), quoting
Acme Industrial Co., supra at 437.
Since the decision to close the trucking division was made a
nonmandatory subject of bargaining by virtue of the manage-
ment-rights clause in the collective-bargaining agreement, and
the Respondent was not obliged to bargain over the closure
decision, it logically follows that the Respondent was not legal-
ly required to comply with the Union’s information request to
the extent that it dealt with the decision to close. See Ingham
Regional Medical Center, 342 NLRB 1259, 1262 (2004); BC
Industries, Inc., 307 NLRB 1275, 1275 (1992).
The class-action grievance solely concerned the permanent
outsourcing of work and no other matter. Hence, the infor-
mation requests pertaining to the grievance were essentially
interrelated with the decision to close the trucking division and
cannot be viewed independently from it. The Respondent did
not violate the Act by not bargaining over the decision, and I
34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
therefore conclude that the Respondent was not obligated under
Section 8(a)(5) to furnish information related to a grievance
filed over that decision.
As previously discussed, the Respondent was required to en-
gage in effects bargaining over the closing of the trucking divi-
sion and the layoffs of all drivers. It follows that the Respond-
ent was obligated to furnish information pertaining to the ef-
fects of the termination of the trucking division and, indeed, has
never claimed otherwise.
In this regard, the Respondent was obliged to make a reason-
able effort to secure the requested information and, if unavaila-
ble, explain or document the reasons for the asserted unavaila-
bility. Goodyear Atomic Corp., 266 NLRB 890, 896 (1983);
see also Garcia Trucking Service, 342 NLRB 764, 764 fn. 1
(2004). The Respondent did not do so for the particular infor-
mation that it failed to provide. Moreover, if the Respondent
did not have available lists with the information requested, this
did not excuse its noncompliance. When an employer possess-
es the requested information but not in the form requested, “it
must make some effort to ‘inform’ the union so that the union
may, if necessary, modify its request accordingly.” Yeshiva
University, 315 NLRB 1245, 1248 (1994); Postal Service, 276
NLRB 1282 (1985). The Respondent never did such. There-
fore, its failure to comply with the requests for certain lists was
unlawful. I note that a limited number of employees was in-
volved and that compilation of such lists would not appear to
have imposed an onerous burden on the Respondent. Indeed,
the Respondent has never claimed this.
In short, the Respondent violated Section 8(a)(5) by failing
to furnish information that the Union requested concerning
holiday pay, bereavement leave, sick leave, jury duty, accrued
vacation benefits, leaves of absence, unpaid compensation,
workers’ compensation, and unpaid life insurance claims, be-
cause such information was presumptively relevant, both as to
the effects of the termination of the trucking division and as to
the Union’s continued role as the collective-bargaining repre-
sentative of the remaining unit employees.
Based on this determination, I also conclude that the Re-
spondent’s failure to provide the Union with such requested
information deprived the Union of the ability to meaningfully
bargain over the effects of the decision. Hence, I further con-
clude that the Respondent failed in its obligation to bargain
over the effects, even if it made offers to so bargain. See
Comar, Inc., 339 NLRB 903, 913 (2003) (Comar I), enfd. 111
Fed.Appx 1 (D.C. Cir. 2004); Miami Rivet of Puerto Rico, Inc.,
318 NLRB 769, 771–772 (1995).
In sum, I conclude that the Respondent violated Section
8(a)(5) and (1) by failing to furnish the Union with requested
information that was relevant and necessary to the Union’s role
as collective-bargaining representative, and as a result also
violated Section 8(a)(5) and (1) by failing to bargain over the
effects of the closing of the trucking division.
Turn-To and CSI as Single Employer/Alto Egos
Single employer and alter ego are related but separate con-
cepts. NYP Acquisition Corp., 332 NLRB 1041, 1046 fn. 1
(2000); Johnston Corp., 322 NLRB 818, 818 (1997).
A single-employer analysis is appropriate only where two
ongoing businesses are coordinated by a common master. Ca-
dillac Asphalt Paving Co., 349 NLRB 6, 8 (2007). In determin-
ing whether two nominally separate employing entities consti-
tute a single employer, the Board examines four factors: (1)
common ownership, (2) common management, (3) functional
interrelationship of operations, and (4) common control of labor
relations. No single factor is controlling, and all not need to be
present. Rather, single-employer status depends on all of the
circumstances and ultimately is based on the absence of an
arm’s-length relationship between seemingly independent com-
panies. Bolivar-Tees, Inc., 349 NRB 720 (2007), enfd. 551
F.3d 722 (8th Cir. 2008); Mercy Hospital of Buffalo, 336
NLRB 1282, 1283–1284 (2001). The most important single
factor is whether there is centralized control over labor rela-
tions. Mercy Hospital, id. at 1284; AG Communications Sys-
tems Corp., 350 NLRB 168, 169 (2007). Common ownership,
while significant, is not determinative in the absence of central-
ized control over labor relations. AG Communications Systems,
ibid; Mercy Hospital of Buffalo, supra at 1284.
When assessing the first prong, the Board considers 1) the
degree to which the corporate legal formalities have been main-
tained, and 2) the degree to which individual and corporate
funds, other assets, and affairs have been commingled. White
Oak Coal, 318 NLRB 732, 735 (1995), enfd. mem. 81 F.3d 150
(4th Cir. 1996).
Here, I find that the facts establish that Pavlish and Pat
Pavlish share common ownership of CSI and Turn-To. Signifi-
cant in this regard are the following. Turn-To stores vehicles at
CSI’s facility—in the absence of any formal agreement be-
tween CSI and Turn-To, or payment of rent; Brown, Turn-To’s
driver sometimes leaves his vehicle at the CSI facility, again
without there being any kind of formal agreement between CSI
and Turn-To; Turn-To leases office space from a business en-
terprise of which Pavlish is half-owner; and Pat Pavlish contin-
ues to be CSI’s secretary-treasurer and to receive a salary by
virtue of holding that position.
As to functional interrelationship of operations, Brown and
the CSI contract drivers have very limited, if any, interaction on
a regular basis; the only person connected with CSI with whom
Brown interfaces is Pat Pavlish; Brown performs longer-
distance driving over a larger geographic area than the CSI
contract drivers; a major aspect of Turn-To’s business is the
leasing of vehicles to CETCO, a function that CSI has never
performed; Pat Pavlish operates out of a separate Turn-To of-
fice and has no office or desk at CSI; and nothing in the record
suggests that she has any interaction with CSI contract drivers
or CSI employees or plays any role in CSI’s personnel policies
or practices. Accordingly, I do not find a functional interrela-
tionship of operations between CSI and Turn-To.
There is no evidence that Pavlish plays any role in the man-
agement of Turn-To or that anyone other than Pat Pavlish con-
trols Turn-To’s labor relations. CETCO and other contractors
have supervisory authority over their contract drivers at CSI
and play no role in supervising Brown.
Considering all of the above circumstances, I conclude that
Turn-To and CSI do not constitute a single employer.
35
CHEMICAL SOLVENTS, INC.
Turning to the alter-ego issue, the Board generally will find
an alter-ego relationship when two entities have substantially
identical management, business purposes, operations, equip-
ment, customers, supervision, and ownership. McCarthy Con-
struction Co., 355 NLRB 50, 51 (2010). Not all of these indi-
cia need to be present, and no one of them is a prerequisite to
finding an alter-ego relationship. Ibid; Diverse Steel, Inc., 349
NLRB 946, 946 (2007). Unlawful motivation is not a neces-
sary element of an alter-ego finding, but the Board does consid-
er whether the purpose behind the creation of the suspected
alter ego was to evade responsibilities under the Act. Ibid;
Diverse Steel, Inc., above. See also Midwest Precision Heating
& Cooling, Inc., 341 NLRB 435, 439 (2004), enfd. 408 F.3d
450 (8th Cir. 2005). The determination of alter ego ultimately
depends on all of the facts in a particular case. Crawford Door
Sales Co., 226 NLRB 1144, 1144 (1976).
I note that the Board has not hesitated to find alter ego status
when the owners were different but in a close familial relation-
ship. ADF, Inc., 355 NLRB 81, 84 (2010); Fallon-Williams,
Inc., 336 NLRB 602 (2001).
Pat Pavlish manages Turn-To and has no direct management
responsibilities at CSI, whereas Pavlish has no management
responsibilities over Turn-To. Transporting chemicals is but
one facet of CSI’s business operations, which include storing of
hazardous waste and various other functions separate and dis-
tinct from transportation. CSI has never engaged in leasing its
vehicles to other companies. In contrast, Turn-To’s business is
limited to leasing vehicles to CETCO and to transporting chem-
icals. CETCO and other contractors exercise supervisory au-
thority over their drivers at CSI and none over Brown; Pat
Pavlish serves as Brown’s supervisor and plays no supervisory
role over contract drivers at CSI. As discussed above under
single employer, I find that the ownership of the two companies
is substantially identical.
The final issue as far as alter ego is whether Turn-To was
formed to evade CSI’s responsibilities under the Act. I have
determined that Pavlish’s decision to terminate the trucking
operation was based on economic considerations rather than
motivated by antiunion animus. I also note that Turn-To was
not incorporated until well after CSI had already started phas-
ing in the contract drivers to perform unit work on a regular
basis. In these circumstances, I cannot conclude that Pavlish
created Turn-To as part of a scheme to get rid of the drivers
because they were represented by a union. Rather, I conclude
that this represented another effort to maximize the profitability
of the Pavlishs’ business operations.
Based on the above, I conclude that CSI and Turn-To are not
alter egos.
Therefore, I recommend that the allegation of single employ-
er/alter egos be dismissed.
Alleged Unilateral Changes
Section 8(a)(5) and (d) of the Act obligate an employer to
bargain with the representative of its employees in good faith
with respect to “wages, hours, and other terms and conditions
of employment.” Fibreboard Corp. v. NLRB, 379 U.S. 203
(1964); NLRB v. Borg-Warner Corp., 356 U.S. 342, 349
(1958).
Section 8(a)(5) further requires an employer to notify a union
and give it an opportunity to bargain over proposed changes in
wages, hours, and conditions of employment, before imple-
menting them. NLRB v. Katz, 369 U.S. 736, 743 (1962); Pan
American Grain Co., 351 NLRB 1412, 1413 (2007). The no-
tice of a proposed change in conditions of employment must be
sufficiently in advance of actual implementation to allow a
reasonable opportunity to bargain. NLRB v. Centra, Inc., 954
F.2d 366, 372 (6th Cir. 1992); Giba-Greigy Pharmaceutical
Division, 264 NLRB 1013 (1982), enfd. 722 F.2d 1120 (3d Cir.
1983).
I. HEALTH INSURANCE BENEFITS
Health insurance benefits clearly constitute a term and condi-
tion of employment and a mandatory subject of bargaining, and
an employer is obliged to afford a union prior notice and an
opportunity to bargain over changes in health insurance plans
that result in employees paying higher costs for benefits. Mid-
Continent Concrete, 336 NLRB 258, 259 (2001), enfd. sub
nom. 308 F.3d 859 (8th Cir. 2002).
The sufficiency of notice must be examined in the context of
when the employer made the decision to propose a change or
had a reasonable expectation that it would do so. Here, the
Respondent knew by March 15, 2010 that Kaiser was going to
substantially raise costs as of August 1, 2010, for the health
insurance benefits that were in effect. Yet, the Respondent did
not notify the Union of this until July 14, 2010. The Respond-
ent offered no explanation of why it waited 4 months—and
only 2 weeks before expiration of the current health plan—to
notify the Union and ask for its assistance in obtaining an alter-
native plan that would be of least detriment to employees. In
these circumstances, I conclude that the Respondent’s notice to
the Union was inadequate and that it therefore failed in its obli-
gation to give the Union sufficient notice and an opportunity to
meaningfully bargain before implementing changes in health
insurance benefits. Cf. Woodland Clinic, 331 NLRB 735, 737
(2000); Bundy Corp., 292 NLRB 671, 672 (1989) (delay in
furnishing relevant information absent persuasive explanation
is unlawful).
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(5) and (1) by unilaterally changing health insurance
benefits without affording the Union adequate prior notice and
an opportunity to bargain.
II. INSTALLATION AND OPERATION OF ADDITIONAL
SURVEILLANCE CAMERAS
Installation and operation of additional surveillance cameras
is not alleged here as violating Section 8(a)(1) by constituting
surveillance of employees’ union or protected activities. If it
was, the Respondent correctly cites (Br. 81–82) Trailmobile
Trailer, LLC, 343 NLRB 95, 96 (2004), for the proposition that
the test is whether such conduct created “a reasonable tendency
to interfere with protected activity under the circumstances.”
However, precedent going to surveillance is inapposite in de-
ciding the allegation that the Respondent’s installation of the
camera constituted an unlawful unilateral change.
Installation and use of hidden surveillance cameras in the
workplace is a mandatory subject of bargaining, over which a
36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union has the statutory right to bargain. Anheuser-Busch, Inc.,
342 NLRB 560, 560 (2004); Colgate-Palmolive Co., 323
NLRB 515, 515 (1997) (installation of hidden cameras was not
an extension of past practice since prior cameras were visible).
In Colgate-Palmolive, the Board held that “installation of sur-
veillance cameras is both germane to the working environment
and outside the scope of managerial decisions lying at the core
of entrepreneurial control.” Ibid; see also National Steel Corp.,
335 NLRB 747, 747 (2001).
The Respondent (Br. 83) argues that the situation presented
here is distinguishable from that in Colgate-Palmolive: the new
surveillance cameras were openly visible and focused strictly
on access points in the plant, not the “working environment,”
and they were required to be in compliance with DHS regula-
tions.
I find the Respondent’s position unpersuasive. It is difficult
to accept the proposition that cameras clearly visible to em-
ployees are of less concern to employees than hidden ones or
would have less potential impact on their working environment.
Indeed, the contrary could be argued. The placement of at least
some of the cameras resulted in their viewing areas of the fa-
cility regularly used by employees. I do not dispute the Re-
spondent’s contention that the new cameras comported with
DHS’ suggested security measures. However, the Respondent
has not shown that DHS required the particular number of new
cameras or their particular locations. Those matters aside, other
issues also could have been raised or discussed during bargain-
ing, such as the size of the cameras or how their purpose could
be best communicated to employees. I cannot, therefore, ac-
cept the Respondent’s summary conclusion that “[b]argaining
would have been futile and unproductive” (ibid).
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(5) and (1) by unilaterally installing new surveillance
cameras without affording the Union prior notice and an oppor-
tunity to bargain.
III. DISCIPLINARY POLICY REGARDING DRIVERS’ USE OF
CELL PHONES AND TRUCK INSPECTIONS
The only document of record regarding cell phone policy is
the September 2 memorandum stating that the Company did not
want drivers texting, talking, or making personal calls while
driving, and further stating that if drivers needed to make or
answer a call, they needed to pull off the roadway at a safe
place or do so at designated stops. As noted, determining the
policy before that memo is problematic because Griffin was the
sole witness to testify thereon, and his testimony was confus-
ing. Some of his testimony supports the conclusion that the
memorandum was merely a restatement of existing policy but,
regardless, I cannot find that the memorandum changed the
policy. No grievance or ULP charge was filed over its issu-
ance.
Because Schill essentially reiterated the policy as set out in
the September 2 memorandum, I conclude that the Respondent
made no unilateral change in the cell phone policy during the
October training sessions with Griffith, Zemaitis, and other
drivers.
In contrast to the cell phone policy, the Respondent did not
have in October 2010 a written policy on time limits for
preinspections. The change announced at the training sessions
was that drivers would have to report to management if they
went over 30 minutes, or they would face discipline. Thus,
they were not told that they would be disciplined for taking
more than 30 minutes but only that they would now have to
report it.
The Respondent’s pretrip inspection policies directly in-
volved drivers’ terms and conditions of employment and were
therefore a mandatory subject of bargaining. However, as the
Board stated in Crittenton Hospital, 342 NLRB 686, 686
(2004), “[N]ot all unilateral changes in bargaining unit employ-
ees’ terms and conditions of employment constitute unfair labor
practices. The imposed change must be a ‘material, substantial,
and significant’ one . . . .” See also Berkshire Nursing Home,
LLC, 345 NLRB 220, 220 (2005).
In a case involving an analogous issue to that posed here, El
Paso Electric Co., 355 NLRB 544 (2010), a change requiring
employees to call in to advise that they were going to be unable
to finish a job was held not to rise to the level of material, sub-
stantial, and significant.
Similarly, I find that the Respondent’s requiring drivers to
notify management when they needed to take or had taken over
30 minutes for a pretrip inspection did not result in a heavy
burden on drivers or amount to a material, substantial, and sig-
nificant change. I emphasize that the change was merely one of
notification, not of a change in disciplinary policies.
Therefore, I recommend dismissal of the allegations that the
Respondent violated Section 8(a)(5) and (1) by making unilat-
eral changes in cell phone and pretrip inspection policies in
October 2010.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By issuing a verbal warning to Bill Zemaitis, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
and violated Section 8(a)(3) and (1) of the Act.
4. By making unilateral changes in health insurance benefits
and installation of surveillance cameras, failing to timely pro-
vide the Union with information it requested concerning the
effects of the decision to close the trucking division and per-
taining to the remaining unit employees, and failing and refus-
ing to engage in bargaining over the effects of the decision to
close the trucking division, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(5)
and (1) of the Act.
5. By threatening employees with unspecified reprisals, dis-
charge, or other discipline because of their union/protected
activity, including the filing of grievances under the collective-
bargaining agreement, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and violated Section 8(a)(1) of the
Act.
37
CHEMICAL SOLVENTS, INC.
REMEDY
Because I have found that the Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act, including the following.
Since the Respondent discriminated against Bill Zemaitis by
issuing him a verbal warning on November 11, 2010, the Re-
spondent shall expunge from its records any reference to the
warning and notify him in writing that such action has been
taken and that any evidence related to that warning will not be
used against him in any way. See Sterling Sugars, Inc., 261
NLRB 472, 472 (1982).
Regarding the unilateral change in health insurance benefits,
the Respondent shall restore the status quo ante and reimburse
unit employees for any expenses that resulted. See Larry
Geweke Ford, 344 NLRB 628, 628 (2005); Keeler Die Cast,
327 NLRB 585, 590–591 (1999). The make-whole remedy
shall be computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus
interest compounded daily, Kentucky River Medical Center,
356 NLRB No. 8 (2010), enf. denied on other grounds sub
nom. Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C.
Cir. 2011), with an applicable rate of interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). I note
that the Respondent may choose to litigate in compliance
whether it would be unduly burdensome to restore the status
quo ante with respect to the unilateral changes in health insur-
ance benefits in effect prior to September 1, 2010. See Comau,
Inc., 356 NLRB No. 21, slip op. at 1 fn. 7 (2010); Geweke
Ford, supra at 629.
With respect to unilateral installation of new surveillance
cameras, the Acting General Counsel has not contended that
that they resulted in unlawful surveillance and has never explic-
itly requested a remedy of restoration of the status quo ante.
No evidence was introduced to show that any employees have
been disciplined or otherwise adversely affected by the Re-
spondent’s conduct, and requiring the Respondent to go to the
expense of removing the new cameras and potentially jeopard-
izing its legitimate security concerns strikes me as unnecessary
and potentially contrary to other Federal Government policies,
in particular, those policed by the DHS. A remedy providing
that the Respondent meet and bargain with the Union with re-
spect to the installation and use of the surveillance cameras is
sufficient and appropriate. See Colgate-Palmolive Co., supra at
516.
The Acting General Counsel does not seek a broad cease-
and-desist order.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended78

78 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ORDER
The Respondent, Chemical Solvents, Inc., Cleveland, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals, dis-
charge, or any other discipline as retaliation for their un-
ion/protected activity, including the filing of grievances.
(b) Verbally warning or otherwise discriminating against any
employees for engaging in activities on behalf of the Teamsters
Local Union 507 a/w International Brotherhood of Teamsters
(the Union) including the filing of grievances under the collec-
tive-bargaining agreement.
(c) Making changes in health insurance benefits, installation
of surveillance cameras, or any other term and condition of
employment without affording the Union adequate prior notice
and an opportunity to bargain.
(d) Failing to timely provide the Union with information it
requests that is relevant and necessary for it to fulfill its role as
a collective-bargaining representative, including bargaining
over the effects of the Respondent’s decision to terminate the
trucking division, and its representation of remaining unit em-
ployees.
(e) Failing to bargain with the Union over the effects of the
decision to terminate the trucking division.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful verbal warn-
ing issued to Bill Zemaitis, and within 3 days thereafter notify
him in writing that this has been done and that the discipline
will not be used against him in any way.
(b) On the Union’s request, restore the health insurance ben-
efits that existed prior to the unilateral changes that were im-
plemented on September 1, 2010, and maintain those terms
until the Union agrees to the changes or the parties bargain to a
new collective-bargaining provision or reach an overall valid
impasse.
(c) Make employees whole by reimbursing them, in the
manner set forth in the remedy section of the decision, for any
loss of benefits and additional expenses they incurred as a re-
sult of the unilateral changes in health insurance benefits that
were implemented on September 1, 2010.
(d) On the Union’s request, bargain over the installation and
operation of new surveillance cameras in August and Septem-
ber 2010.
(e) Provide the Union with information that it requested on
about January 19, 2011, which was relevant and necessary for it
to bargain over the effects of the Respondent’s decision to ter-
minate the trucking division, and to represent remaining unit
employees.
(f) Bargain with the Union over the effects on employees of
the termination of the trucking division and the layoffs of unit
drivers.
38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(g) Within 14 days after service by the Region, post at its fa-
cilities in Cleveland, Ohio, copies of the attached notice marked
“Appendix.”79 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices should be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 1, 2010.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. May 15, 2012
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
We recognize Teamsters Local Union 507 a/w International
Brotherhood of Teamsters (the Union) as the collective-
bargaining representative of a unit composed of all full-time

79 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
and regular-part time production and maintenance employees
and truckdrivers (drivers).
WE WILL NOT threaten you with unspecified reprisals, dis-
charge, or any other discipline because you engage in activity
on behalf of the Union or in other protected activity, including
the filing of grievances under the collective-bargaining agree-
ment.
WE WILL NOT issue you verbal warnings or other discipline
because you engage in activity on behalf of the Union or in
other protected activity, including the filing of grievances.
WE WILL NOT make changes in health insurance benefits, in-
stallation of surveillance cameras, or any other term and condi-
tion of employment without affording the Union adequate prior
notice and an opportunity to bargain.
WE WILL NOT fail to provide the Union with information it
requests that is relevant and necessary for it to fulfill its role as
a collective-bargaining representative, including bargaining
over the effects of our decision to terminate the trucking divi-
sion and lay off drivers, and its representing remaining unit
employees.
WE WILL NOT fail to bargain with the Union over the effects
of our decision to terminate the trucking division and lay off
drivers.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful verbal
warning issued to Bill Zemaitis, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done and that
the discipline will not be used against him in any way.
WE WILL, on the Union’s request, restore the health insur-
ance benefits that existed prior to the unilateral changes that
were implemented on September 1, 2010, and maintain those
terms until the Union agrees to the changes or the parties bar-
gain to a new collective-bargaining provision or reach an over-
all valid impasse.
WE WILL make you whole for any loss of benefits and addi-
tional expenses you incurred as a result of the unilateral chang-
es in health insurance benefits that were implemented on Sep-
tember 1, 2010.
WE WILL, on the Union’s request, bargain over our installa-
tion and operation of new surveillance cameras in August and
September 2010.
WE WILL provide the Union with information that it request-
ed on about January 19, 2011, which was relevant and neces-
sary for it to bargain over the effects of our decision to termi-
nate the trucking division and lay off drivers, and to represent
remaining unit employees.
WE WILL bargain with the Union over the effects on employ-
ees of the termination of the trucking division and the layoffs of
drivers.
CHEMICAL SOLVENTS, INC.