Kane Steel Co.

National Labor Relations Board - Board Decisions

Jul 13, 2010

355 NLRB No. 49 (N.L.R.B. 2010)

355 NLRB No. 49
1
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.
Kane Steel Company and United Auto Workers of
America, Amalgamated Local Union No. 2327
and Teamsters Local Union No. 429. Cases 4–
CA–37179 and 4–CA–37274
July 13, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the consolidated complaint. Upon a charge
filed by United Auto Workers of America, Amalgamated
Local Union No. 2327 (the UAW) in Case 4–CA–37179
on November 25, 2009, and a charge and amended
charge filed by Teamsters Local Union No. 429 (the
IBT) (collectively, the Unions) in Case 4–CA–37274 on
January 12 and February 24, 2010, respectively, the
General Counsel issued the consolidated complaint
March 22, 2010, against Kane Steel Company, the Re-
spondent, alleging that it has violated Section 8(a)(5) and
(1) of the Act. The Respondent failed to file an answer.
On April 20, 2010, the General Counsel filed a Motion
for Default Judgment with the Board. On April 22,
2010, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board's Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the consolidated complaint affirma-
tively stated that unless an answer was received by April
5, 2010, the Board may find, pursuant to a motion for
default judgment, that the allegations in the consolidated
complaint are true. Further, the undisputed allegations
in the General Counsel’s motion disclose that the Re-
gion, by letter dated April 7, 2010, notified the Respon-
dent that unless an answer were received by April 14,
2010, a motion for default judgment would be filed with
the Board.
In the absence of good cause being shown for the fail-
ure to file an answer, we grant the General Counsel's
Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation with facilities in Millville, New Jersey (the
Millville plant), and in Pottsville, Pennsylvania (the
Pottsville plant), has been a distributor of steel and steel-
related products.
During the calendar year preceding issuance of the
consolidated complaint, the Respondent, in conducting
its business operations described above, purchased and
received at the Millville plant and at the Pottsville plant
goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania and the
State of New Jersey.
We find that at all material times the Respondent has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
the Unions are labor organizations within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth below opposite their respective
names, and have been supervisors of the Respondent
within the meaning of Section 2(11) of the Act and
agents of the Respondent within the meaning of Section
2(13) of the Act:
Clifford Kane President
John Buchter General Manager (Pottsville plant)
Donald Hatter Shift Supervisor (Pottsville plant)
At all material times, Lynn Pielacha was a payroll
clerk of the Respondent working at the Pottsville plant
and was an agent of the Respondent within the meaning
of Section 2(13) of the Act with respect to conduct re-
ferred to below in paragraph 3.
The following employees of the Respondent (the Mill-
ville unit), constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees, including
warehousemen, driver and helpers, receiving and ship-
ping employees within the plant-wide unit, but exclud-
ing all office clerical employees, technical employees,
including draftsmen, guards, watchmen and supervisors
as defined in the National Labor Relations Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
At all material times, the UAW has been the desig-
nated exclusive collective-bargaining representative of
the Millville unit and has been recognized as the repre-
sentative by the Respondent. This recognition has been
embodied in successive collective-bargaining agree-
ments, the most recent of which, the Millville Agree-
ment, is effective by its terms from February 1, 2009, to
January 31, 2012.
At all material times, based on Section 9(a) of the Act,
the UAW has been the exclusive collective-bargaining
representative of the Millville unit.
The following employees of the Respondent (the Potts-
ville unit), constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
Truckdrivers, helpers, yardmen, shear men, burners,
crane operators, mechanics and all other production
employees, but specifically excluding office and cleri-
cal employees, watchmen and supervisors as defined
by the National Labor Relations Act.
At all material times, the IBT has been the designated
exclusive collective-bargaining representative of the
Pottsville unit and has been recognized as the representa-
tive by the Respondent. This recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which, the Pottsville Agreement, is
effective by its terms from January 1, 2008, to December
31, 2010.
At all material times, based on Section 9(a) of the Act,
the IBT has been the exclusive collective-bargaining
representative of the Pottsville unit.
The Respondent has engaged in the following conduct.
1. About November 13, 2009, the Respondent ceased
its operations at the Pottsville plant. The Respondent
engaged in this conduct without prior notice to the IBT
and without affording the IBT an opportunity to bargain
with the Respondent with respect to the effects of this
conduct.
2. About November 25, 2009, the Respondent ceased
its operations at the Millville plant. The Respondent
engaged in this conduct without prior notice to the UAW
and with affording the UAW an opportunity to bargain
with the Respondent with respect to the effects of this
conduct.
3. On about November 18, 2009, by email to Lynn Pie-
lacha, the IBT requested the Respondent to furnish the
IBT with “a list of each union employees[’] unused vaca-
tions for 2009.” The information requested by the IBT,
as described above, is necessary for, and relevant to, the
performance of its duties as the exclusive collective-
bargaining representative of the Pottsville Unit. Since
about November 18, 2009, the Respondent has failed and
refused to furnish the IBT with the requested informa-
tion.
4. About early November 2009, the Respondent ceased
paying Pottsville unit employees their accrued vacation
pay as required by article 22 of the Pottsville Agreement.
5. Since early November 2009, the Respondent ceased
paying Millville unit employees: (1) their accrued vaca-
tion pay as required by article 11 of the Millville Agree-
ment; (2) their accrued holiday pay as required by article
10 of the Millville Agreement; (3) severance pay as re-
quired by article 33 of the Millville Agreement; and (4)
the 401(k) contributions as required by article 39 of the
Millville Agreement.
The subjects set forth above in paragraphs 1, 2, 4, and
5 relate to wages, hours, and other terms and conditions
of employment of the Millville and Pottsville units and
are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above in paragraph 4 without the consent of the IBT dur-
ing the term of the Pottsville Agreement and without
having afforded the IBT an opportunity to bargain with
the Respondent with respect to this conduct. The Re-
spondent engaged in the conduct described above in
paragraph 5 without the consent of the UAW during the
term of the Millville Agreement and without having af-
forded the UAW an opportunity to bargain with the Re-
spondent with respect to this conduct.
CONCLUSIONS OF LAW
1. By the conduct described above in paragraphs 1, 2,
and 3, the Respondent has failed and refused to bargain
collectively and in good faith with the exclusive collec-
tive-bargaining representatives of its employees in viola-
tion of Section 8(a)(5) and (1) of the Act.
2. By the conduct described above in paragraphs 4 and
5, the Respondent has failed and refused to bargain col-
lectively and in good faith with the exclusive collective-
bargaining representatives of its employees within the
meaning of Section 8(d) of the Act, in violation of Sec-
tion 8(a)(5) and (1) of the Act.
3. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, to remedy
the Respondent’s unlawful failure to bargain with the
Unions about the effects of its decision to close its Mill-
KANE STEEL CO. 3
ville, New Jersey and Pottsville, Pennsylvania facilities,
we shall order the Respondent to bargain with the Un-
ions, on request, about the effects of its decision. As a
result of the Respondent’s unlawful conduct, however,
the unit employees have been denied an opportunity to
bargain through their collective-bargaining representa-
tives. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Unions. 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 to make
whole the unit employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Respon-
dent to pay backpay to the employees in the Millville and
Pottsville units in a manner similar to that required in
Transmarine Navigation Corp., 170 NLRB 389 (1968),
as clarified by Melody Toyota, 325 NLRB 846 (1998).1
Thus, the Respondent shall pay its Millville unit and
Pottsville unit employees 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 the occurrence of the earliest of the following con-
ditions: (1) the date the Respondent bargains to agree-
ment with the Union on those subjects pertaining to the
effects of the closing of its facility on its employees rep-
resented by that Union; (2) a bona fide impasse in bar-
gaining; (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 exceed the amount they would
have earned as wages from the date on which the Re-
spondent ceased its operations to the time they secured
equivalent employment elsewhere, or the date on which
the Respondent shall have offered to bargain in good

1 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
Neither the consolidated complaint nor the motion specifies the impact,
if any, on the unit employees of the Respondent’s decision to close.
Thus, we do not know whether, or to what extent, the refusal to bargain
about the effects of this decision had an impact on the unit employees.
In these circumstances, we shall permit the Respondent to contest the
appropriateness of a Transmarine backpay remedy at the compliance
stage. See, e.g., Buffalo Weaving & Belting, 340 NLRB 684, 685 fn. 3
(2003); and ACS Acquisition Corp., 339 NLRB 736, 737 fn. 2 (2003).
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 based on earnings which the unit employees
would normally have received during the applicable pe-
riod, less any net interim earnings, and shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).2
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) by failing and refusing to furnish
the IBT with relevant and necessary information re-
quested on about November 18, 2009, we shall order the
Respondent to provide the IBT union with the requested
information.
Further, having found that the Respondent violated
Section 8(a)(5) and (1) by ceasing, since early November
2009, to pay the Millville unit and Pottsville unit em-
ployees their accrued vacation pay as required by article
11 of the Millville Agreement and article 22 of the Potts-
ville Agreement, respectively, and ceasing to pay the
Millville unit employees their accrued holiday pay and
severance pay, as required by articles 10 and 33 of the
Millville Agreement, respectively, we shall order the
Respondent to make the unit employees whole for any
loss of earnings and other benefits attributable to its
unlawful conduct. All amounts due to employees shall
be computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, supra.
Additionally, having found that the Respondent vio-
lated Section 8(a)(5) and (1) by ceasing to make contri-
butions to the 401(k) plan as required by article 39 of the
Millville Agreement, we shall order the Respondent to
make all such contributions that have not been made
since early November 2009, including any additional
amounts due the plan in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979), and to
make whole the unit employees for any loss of interest
they may have suffered as a result of the failure to make
such payments.3 We shall also order the Respondent to

2 In the complaint, the General Counsel seeks compound interest
computed on a quarterly basis for any backpay or other monetary
awards. Having duly considered the matter, we are not prepared at this
time to deviate from our current practice of assessing simple interest.
See, e.g., Glen Rock Ham, 352 NLRB 516, 516 fn. 1 (2008), citing
Rogers Corp., 344 NLRB 504 (2005).
3 To the extent that an employee has made personal contributions to
the 401(k) savings plan that have been accepted by the plan in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
reimburse unit employees for any expenses ensuing from
its failure to make the contractually-required contribu-
tions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the
manner set forth in Ogle Protection Service, supra, with
interest as prescribed in New Horizons for the Retarded,
supra.
Finally, in view of the fact that the Respondent’s Mill-
ville, New Jersey and Pottsville, Pennsylvania facilities
are closed, we shall order the Respondent to mail a copy
of the attached notice to the Unions and to the last known
addresses of its Millville unit and Pottsville unit employ-
ees who were employed by the Respondent at any time
since November 1, 2009, in order to inform them of the
outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Kane Steel Company, Millville, New Jersey
and Pottsville, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with United Auto Workers of America, Amal-
gamated Local Union No. 2327 (the UAW), as the exclu-
sive collective-bargaining representative for the employ-
ees in the Millville unit described below, and with Team-
sters Local Union No. 429 (the IBT), as the exclusive
collective-bargaining representative for the employees in
the Pottsville unit described below, about the effects on
the unit employees of its decision to close its Millville,
New Jersey and Pottsville, Pennsylvania, facilities and
by failing to give the Unions prior notice of its decision
to close those facilities. The appropriate units are:
The Millville unit:
All production and maintenance employees, including
warehousemen, driver and helpers, receiving and ship-
ping employees within the plant-wide unit, but exclud-
ing all office clerical employees, technical employees,
including draftsmen, guards, watchmen and supervisors
as defined in the National Labor Relations Act.
The Pottsville unit:
Truckdrivers, helpers, yardmen, shear men, burners,
crane operators, mechanics and all other production
employees, but specifically excluding office and cleri-
cal employees, watchmen and supervisors as defined
by the National Labor Relations Act.

amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
(b) Failing and refusing to furnish the IBT with the in-
formation it requested on November 18, 2009, which is
relevant and necessary to the IBT’s performance of its
duties as the exclusive bargaining representative of the
employees in the Pottsville unit.
(c) Ceasing to pay its Pottsville unit employees their
accrued vacation pay as set forth in its collective-
bargaining agreement with the IBT.
(d) Ceasing to pay its Millville Unit employees their
accrued vacation pay, accrued holiday pay, severance
pay and to make 401(k) contributions as set forth in its
collective-bargaining agreement with the UAW.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively and in good faith
with the IBT about the effects on the Pottsville unit em-
ployees of its decision to close its Pottsville facility on
November 13, 2009; and bargain collectively and in good
faith with the UAW about the effects on the Millville unit
employees of its decision to close its Millville facility on
November 25, 2009, and reduce to writing and sign any
agreements reached as a result of such bargaining.
(b) Pay the Millville unit and Pottsville unit employ-
ees their normal wages for the period set forth in the
remedy section of this decision.
(c) Furnish the IBT with the information it requested
on November 18, 2009.
(d) Pay the Pottsville unit employees their accrued va-
cation pay, with interest, in the manner set forth in the
remedy section of this decision.
(e) Pay the Millville unit employees their accrued va-
cation pay, accrued holiday pay, and severance pay, with
interest, in the manner set forth in the remedy section of
this decision.
(f) Make all 401(k) contributions required by the
Millville Agreement that have not been made since about
November 2009, including any additional amounts due
the plan, and make whole Millville unit employees for
any loss of interest they may have suffered, and any ex-
penses ensuing from its failure to make the contractually-
required contributions as set forth in the remedy section
of this decision.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records,
timecards, personnel records and reports, and all other
records, including an electronic copy of such records if
KANE STEEL CO. 5
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”4 to the Unions
and to all unit employees who were employed by the
Respondent at its Millville, New Jersey and Pottsville,
Pennsylvania facilities at any time since November 1,
2009.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 13, 2010
Wilma B. Liebman, Chairman
Craig Becker, Member
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 mail 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

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with United Auto Workers of America,
Amalgamated Local Union No. 2327 (the UAW), as the
exclusive collective-bargaining representative for the
employees in the Millville unit described below, and
with Teamsters Local Union No. 429 (the IBT), as the
exclusive collective-bargaining representative for the
employees in the Pottsville unit described below, about
the effects on our unit employees of our decision to close
our Millville, New Jersey and Pottsville, Pennsylvania
facilities and by failing to give the Unions prior notice of
our decision to close those facilities. The appropriate
units are:
The Millville unit:
All production and maintenance employees, including
warehousemen, driver and helpers, receiving and ship-
ping employees within the plant-wide unit, but exclud-
ing all office clerical employees, technical employees,
including draftsmen, guards, watchmen and supervisors
as defined in the National Labor Relations Act.
The Pottsville unit:
Truck drivers, helpers, yardmen, shear men, burners,
crane operators, mechanics and all other production
employees, but specifically excluding office and cleri-
cal employees, watchmen and supervisors as defined
by the National Labor Relations Act.
WE WILL NOT fail and refuse to furnish the IBT with
the information it requested on November 18, 2009,
which is relevant and necessary to the performance of its
duties as the exclusive bargaining representative of the
employees in the Pottsville unit.
WE WILL NOT cease to pay our Pottsville unit employ-
ees their accrued vacation pay as set forth in our collec-
tive-bargaining agreement with the IBT.
WE WILL NOT cease to pay our Millville unit employ-
ees their accrued vacation pay, accrued holiday pay, sev-
erance pay and to make 401(k) contributions as set forth
in our collective-bargaining agreement with the UAW.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain collectively and in good
faith with the IBT about the effects on the Pottsville unit
employees of our decision to close our Pottsville facility
on November 13, 2009; bargain collectively and in good
faith with the UAW about the effects on the Millville
unit employees of our decision to close our Millville fa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
cility on November 25, 2009; and reduce to writing and
sign any agreements reached as a result of such bargain-
ing.
WE WILL pay the Millville unit and Pottsville unit em-
ployees their normal wages, with interest.
WE WILL furnish the IBT with the information it re-
quested on November 18, 2009.
WE WILL pay the Pottsville unit employees their ac-
crued vacation pay, with interest.
WE WILL pay the Millville unit employees their ac-
crued vacation pay, accrued holiday pay, and severance
pay, with interest.
WE WILL make all 401(k) contributions required by the
Millville Agreement that have not been made since early
November 2009, including any additional amounts due
the plan, and WE WILL make whole the unit employees
for any loss of interest they may have suffered and any
expenses ensuing from our failure to make the contractu-
ally-required contributions.
KANE STEEL COMPANY