STEIN INC.

National Labor Relations Board - Board Decisions

Jan 28, 2020

369 N.L.R.B. 10 (N.L.R.B. 2020)

369 NLRB No. 10
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.
Stein, Inc. and Laborers’ International Union of North
America (LIUNA), Local 534
International Union of Operating Engineers (IUOE),
Local 18 and Laborers’ International Union of
North America (LIUNA), Local 534. Cases 09‒
CA‒215131, 09‒CA‒219834, and 09‒CB‒215147
January 28, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On January 24, 2019, Administrative Law Judge An-
drew S. Gollin issued the attached decision. Respondents
Stein, Inc. (Stein) and International Union of Operating
Engineers, Local 18 (IUOE Local 18) each filed excep-
tions and supporting briefs, the General Counsel filed an
answering brief, and Respondents Stein and IUOE Local
18 filed reply briefs. In addition, the General Counsel
filed limited cross-exceptions with supporting argument,
Respondents Stein and IUOE Local 18 filed answering
briefs, and the General Counsel filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision and Order.3
I. FACTS
Prior to 2018, AK Steel Holding Corporation (AK
Steel) contracted with TMS International, Inc. (TMS), or
a predecessor to TMS, to perform the scrap reclamation,
slag removal, and processing of slag at its Middletown,
Ohio steelmaking facility. This work was performed by
employees in three separate bargaining units: Respondent
IUOE Local 18 representing the operators; Charging Party
Laborers’ International Union of North America, Local
534 (Laborers Local 534) representing the laborers; and

1 The Respondents have requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
Truck Drivers, Chauffeurs, and Helpers, Local Union No.
100 (Teamsters Local 100) representing the drivers.
In 2017, AK Steel placed the contract for the slag/scrap
processing up for bid.4 In August, Respondent Stein
learned that it was the leading bidder to assume the con-
tract. It decided that, if awarded the contract, it would
merge the three historical bargaining units into one repre-
sented solely by Respondent IUOE Local 18, which had
been representing a majority of all of the bargaining unit
employees involved in the slag/scrap processing. Re-
spondent Stein contacted Respondent IUOE Local 18 to
begin negotiating a collective-bargaining agreement.
Around October, AK Steel officially awarded Respond-
ent Stein the slag/scrap processing contract, and TMS no-
tified the IUOE Local 18, Laborers Local 534, and Team-
sters Local 100 unit employees that it would be shutting
down its operations. On November 9, at meetings with
the IUOE Local 18, Laborers Local 534, and Teamsters
Local 100 unit employees, Respondent Stein’s area man-
ager, Douglas Huffnagel, distributed a handout stating that
Stein’s “goal [was] to hire as many TMS employees as
possible” and that “[a]ll jobs will be under the Operating
Engineers [IUOE] Local 18 Union.” The handout also set
forth the wages, holidays, and seniority that would apply
to employees hired by Respondent Stein and stated that
“[a]ll prospective employees will be subject to a 90-day
probationary period, a physical, and a background check.”
By December 22, Respondents Stein and IUOE Local
18 had executed a new collective-bargaining agreement
under which Respondent Stein recognized Respondent
IUOE Local 18 as the exclusive collective-bargaining rep-
resentative of the employees who had been represented by
Laborers Local 534.5 The collective-bargaining agree-
ment also contained union-security and dues-checkoff
provisions. Respondent Stein never notified Laborers Lo-
cal 534 that it had merged the three units, recognized Re-
spondent IUOE Local 18 as the representative of the
merged unit, or entered into a collective-bargaining agree-
ment with Respondent IUOE Local 18.
II. DISCUSSION
We agree with the judge, for the reasons he stated, that
Respondent Stein is a successor to TMS under NLRB v.
3 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language, and we shall
substitute new notices to conform to the Order as modified.
4 All dates hereinafter are in 2017 unless otherwise indicated.
5 As discussed in the companion case to this case, Stein, Inc., 369
NLRB No. 11 (2020), the Respondents’ collective-bargaining agreement
provided that Respondent Stein also recognized Respondent IUOE Local
18 as the exclusive collective-bargaining representative of the employees
who had been represented by Teamsters Local 100.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Burns Security Services, 406 U.S. 272 (1972), and had a
duty to recognize and bargain with Laborers Local 534.6
For that reason, in agreement with the judge, we find that
Respondent Stein violated Section 8(a)(2) and (1) by rec-
ognizing Respondent IUOE Local 18 as the exclusive col-
lective-bargaining representative of the Laborers Local
534 bargaining unit employees,7 entering into a collective-
bargaining agreement with Respondent IUOE Local 18,
and maintaining and enforcing the terms of that agreement
as to Laborers Local 534 unit members. Respondent Stein
further violated Section 8(a)(3) and (1) by maintaining and
enforcing the union-security and dues-checkoff provisions
of that agreement as to the Laborers Local 534 bargaining
unit employees. See Ports America Outer Harbor, 366
NLRB No. 76, slip op. at 1-2 (2018) (Burns successor vi-
olated Sec. 8(a)(2) and (1) by recognizing a union differ-
ent from the one recognized by the predecessor and by ap-
plying the terms of a collective-bargaining agreement ne-
gotiated with that union); Emerald Green Building Ser-
vices, LLC, 364 NLRB No. 109, slip op. at 1, 10 (2016)

6 The Respondents did not except to the judge’s findings that there
was a “substantial continuity” in the slag/scrap processing operations un-
der Respondent Stein, which continued TMS’ business in substantially
unchanged form, and that a majority of the laborers hired by Respondent
Stein were former TMS employees who had been represented by Labor-
ers Local 534, two of the three requirements for Burns successorship.
Burns, 406 U.S. at 280‒281. The Respondents argue, however, that the
third requirement—that the historical units remain appropriate—was not
met.
We agree with the judge’s rejection of this argument. The Respond-
ents failed to meet their “heavy evidentiary burden” of showing that the
historical bargaining units are “repugnant to the Act’s policies” and no
longer appropriate. Banknote Corp. of America, 315 NLRB 1041, 1043
(1994), enfd. 84 F.3d 637 (2d Cir. 1996), cert. denied 519 U.S. 1109
(1997); see also 3750 Orange Place Ltd. Partnership v. NLRB, 333 F.3d
646, 662 (6th Cir. 2003) (finding Burns successor failed to carry its bur-
den of showing historical bargaining unit was no longer appropriate);
Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 118‒119 (D.C. Cir. 1996)
(finding Burns successor failed to carry its burden of showing that two
of the historical bargaining units were no longer appropriate). The extent
to which the three historical bargaining units in this case had some inter-
action and shared some of the same terms and conditions of employment
did not make maintaining separate units repugnant to the Act’s policies,
notwithstanding Respondent Stein’s limited cross-training and cross-ju-
risdictional assignment of work. The historical bargaining units’ break-
down by work classifications still “conform[ed] reasonably well to other
standards of appropriateness.” Deferiet Paper Co. v. NLRB, 235 F.3d
581, 583 (D.C. Cir. 2000) (quoting Trident Seafoods, 101 F.3d at 118).
Instructively, whether the historical bargaining units would have been
appropriate if they were being organized for the first time is not control-
ling. Id. (“In the context of a successor employer, the appropriateness
inquiry is not the same inquiry the Board would conduct when certifying
a unit for the first time.”). In addition, the judge properly rejected the
Respondents’ requests to admit evidence of unilateral changes regarding
employee cross-training and cross-jurisdictional work assignments after
Laborers Local 534 demanded recognition. However, we do not rely on
the judge’s statement that “cross-training and assignment of cross-juris-
dictional work is the direct result of Stein’s unlawful unilateral changes
to the contractual provisions addressing the definition and assignment of
(Burns successor violated Sec. 8(a)(3) and (1) by main-
taining a collective-bargaining agreement containing a un-
ion-security clause requiring membership as a condition
of employment with a union different from the one recog-
nized by the predecessor).
Additionally, as the judge found, Respondent IUOE Lo-
cal 18 violated Section 8(b)(1)(A) and (2) by accepting
recognition from Respondent Stein as the exclusive col-
lective-bargaining representative of the employees in the
Laborers Local 534 unit; entering into, maintaining, and
enforcing the terms of the collective-bargaining agree-
ment with Respondent Stein; and receiving dues and fees
from the employees in the Laborers Local 534 unit. See
Dean Transportation, Inc., 350 NLRB 48, 48, 60 (2007)
(union violated Sec. 8(b)(1)(A) and (2) by accepting
recognition from, applying the terms of a collective-bar-
gaining agreement with, and receiving dues deductions
from a Burns successor obligated to recognize and bargain
with a different union), enfd. 551 F.3d 1055 (D.C. Cir.
2009).8
work, conditions of work, and job classifications.” As discussed more
fully below, as a Burns successor, Respondent Stein was not required to
maintain, nor was it bound by, the collective-bargaining agreement be-
tween predecessor TMS and Laborers Local 534, including the provi-
sions relating to definition and assignment of work, conditions of work,
and job classifications.
Respondent Stein also challenges Laborers Local 534’s status as a
9(a) representative with a continued presumption of majority support.
Stein argues that the record does not show that Laborers Local 534 had
majority support at the time of its initial recognition decades earlier, and
Stein further speculates that the recognition was pursuant to Sec. 8(f) of
the Act rather than Sec. 9(a). We reject these arguments. Stein’s attempt
to challenge the initial recognition is time-barred under Sec. 10(b). See
Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960).
Furthermore, Laborers Local 534’s initial recognition could not have
been as an 8(f) representative because the Respondents stipulated that
the slag/scrap processing performed at the AK Steel facility is not “build-
ing and construction” work as the terms are used in Sec. 8(f).
7 The judge found that Respondent Stein’s unlawful recognition of
Respondent IUOE Local 18 began on October 12. However, Respondent
Stein did not begin employing any of the Laborers Local 534 unit em-
ployees until January 1, 2018.
8 We also affirm the judge’s findings that Respondent Stein violated
Sec. 8(a)(1) when it informed all potential applicants in the Laborers Lo-
cal 534 bargaining unit that all jobs related to the performance of the
slag/scrap processing would be under Respondent IUOE Local 18 and
threatened Laborers Local 534 unit employees that they would be re-
moved from the work schedule if they did not submit a membership ap-
plication and dues-checkoff authorization to Respondent IUOE Local 18.
See Voith Industrial Services, Inc., 363 NLRB No. 116, slip op. at 3
(2016) (Burns successor violated Sec. 8(a)(1) by telling employee that,
if hired, he would have to join a different union); Cadillac Asphalt Pav-
ing Co., 349 NLRB 6, 7, 24 (2007) (Burns successor violated Sec. 8(a)(1)
by threatening to lay off employees who did not transfer their union
membership to a different union). In addition, we agree with the judge
that Respondent Stein violated Sec. 8(a)(2) and (1) by granting Respond-
ent IUOE Local 18 access to the jobsite and assistance in distributing
Respondent IUOE Local 18 membership applications and dues-checkoff
authorizations to Laborers Local 534 unit employees. See Voith
STEIN, INC. 3
However, as discussed below, we reverse the judge’s
finding that Respondent Stein forfeited its right to set the
initial terms and conditions of employment of the Labor-
ers Local 534 unit employees. Nonetheless, albeit for a
different reason than the judge, we find that Respondent
Stein violated Section 8(a)(5) and (1) by discharging La-
borers Local 534 unit employee Ken Karoly pursuant to
its unlawful unilateral change to the probationary period it
initially established for Laborers Local 534 unit employ-
ees.
Burns Successor’s Right to Set Initial Terms and Condi-
tions of Employment
Despite having a duty to recognize and bargain with the
union recognized by its predecessor, a Burns successor is
ordinarily free to set the initial terms and conditions of em-
ployment upon which it hires the predecessor’s bargaining
unit employees. Burns, 406 U.S. at 294; see also Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 40
(1987). This is true even when the successor violates Sec-
tion 8(a)(2) and (1) by unlawfully assisting and recogniz-
ing a rival union to the one that had been recognized by
the predecessor. Burns, 406 U.S. at 279‒280, 294 (Burns
successor not ordered to honor the predecessor’s collec-
tive-bargaining agreement despite “upset[ting] what it
should have accepted as an established union majority by
soliciting representation cards for another union” in viola-
tion of Section 8(a)(2) and (1)); Reliable Trailer and Body,
295 NLRB 1013, 1019‒1020 (1989) (Burns successor not
ordered to honor the predecessor’s collective-bargaining
agreement even though it provided unlawful assistance to
and executed a collective-bargaining agreement with a
different union).
Notwithstanding the Court’s holding in Burns, the judge
found, relying principally on the Board’s decision in Ad-
vanced Stretchforming International, 323 NLRB 529
(1997), enfd. in relevant part 233 F.3d 1176 (9th Cir.
2000), that Respondent Stein forfeited its right to set initial
terms by engaging in concomitant unfair labor practices.

Industrial Services, 363 NLRB No. 116, slip op. at 2‒3 (Burns successor
violated Sec. 8(a)(2) and (1) by rendering assistance and support to a
union by allowing it to meet with employees during orientation sessions
and worktime to urge them to sign its membership applications and
checkoff authorizations).
Likewise, we also affirm the judge’s findings that Respondent IUOE
Local 18 violated Sec. 8(b)(1)(A) by threatening Laborers Local 534 unit
employees that they would be taken off the work schedule if they did not
join and pay fees and dues to Respondent IUOE Local 18 and by receiv-
ing assistance and support from Respondent Stein in being allowed on
the jobsite to distribute its membership applications and dues-checkoff
authorizations to Laborers Local 534 unit employees. In so doing, we do
not rely on North Hills Office Services, 342 NLRB 437, 437 fn. 1 (2004),
cited by the judge but in which no exceptions were filed to the 8(b)(1)(A)
violation. Instead, we rely on Duane Reade, Inc., 338 NLRB 943, 943‒
Specifically, the judge cited his findings that Respondent
Stein violated Section 8(a)(2) by unlawfully recognizing,
and executing a collective-bargaining agreement with, Re-
spondent IUOE Local 18, and Section 8(a)(1) by making
the unlawful statement that new hires would fall under Re-
spondent IUOE Local 18’s jurisdiction.9 In light of these
violations, the judge concluded that applying the forfeiture
doctrine here would not be inconsistent with the holding
in Burns.
We disagree with the judge's conclusions. Unlike the
judge, we find the holding in Burns is controlling and, fur-
ther, that the facts in Advanced Stretchforming are distin-
guishable from the facts presented here.10 In Advanced
Stretchforming, the Board found that a Burns successor
forfeited its right to set the initial terms and conditions of
employment because, at the time of successorship, it in-
formed employees that there would be no union for those
whom it hired. Id. at 530. The Board reasoned that, by
making that statement, the successor “blatantly coerce[d]
employees in the exercise of their Section 7 right[s]” and
“serve[d] the same end as a refusal to hire employees from
the predecessor’s unionized work force.” Id. The Board
stated that, with respect to the successor’s statement that
there would be no union, “[n]othing in Burns suggests that
an employer may impose such an unlawful condition and
still retain the unilateral right to determine other legitimate
initial terms and conditions of employment.” Id.
In contrast to the successor in Advanced Stretchforming,
Respondent Stein did not tell employees that there would
be no union, nor did it refuse to recognize the employees’
Section 7 right to collectively bargain. Instead, Respond-
ent Stein questioned the trifurcation of the employees into
three separate bargaining units and sought to bargain
solely with the union that it believed represented a major-
ity of the employees in what it considered to be an appro-
priate bargaining unit consisting of all of the slag/scrap
processing employees. Respondent Stein did not engage
in the kind of wholesale repudiation of employees’ Sec-
tion 7 rights that occurred in Advanced Stretchforming.
944 (2003) (union violated Sec. 8(b)(1)(A) by accepting unlawful assis-
tance from employer that invited the union into its stores to organize em-
ployees and directed its employees to meet with union representatives to
sign authorization cards), enfd. 99 Fed. Appx. 240 (D.C. Cir. 2004), and
Planned Building Services, 318 NLRB 1049, 1049, 1063 (1995) (union
violated Sec. 8(b)(1)(A) by threatening employees that they could be dis-
charged if they did not sign its membership cards).
9 The judge also cited to Galloway School Lines, 321 NLRB 1422
(1996), which we overruled in Ridgewood Health Center, Inc. and
Ridgewood Health Services, Inc., 367 NLRB No. 110, slip op. at 7
(2019), after the judge issued his decision in this case.
10 Because we find this case distinguishable, we find it unnecessary
here to address Respondent Stein’s arguments for overruling Advanced
Stretchforming. However, we would be willing to reconsider Advanced
Stretchforming in a future appropriate case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Respondent Stein’s conduct, although unlawful, was not
the kind that the Supreme Court in Burns contemplated as
requiring bargaining before the successor could unilater-
ally set the initial terms and conditions of employment un-
der which it would hire the predecessor’s employees.
Moreover, the judge overlooked Respondent Stein’s lack
of a relationship with the bargaining units prior to learning
that it would be awarded the slag/scrap processing con-
tract and the fact that Stein was not in any way involved
with the establishment of the historical bargaining units or
the collective-bargaining agreements negotiated between
predecessor TMS and Laborers Local 534. See Burns, 406
U.S. at 294 (“It is difficult to understand how [the succes-
sor] could be said to have changed unilaterally any pre-
existing term or condition of employment without bar-
gaining when it had no previous relationship whatsoever
to the bargaining unit and, prior to [assuming the service
contract], no outstanding terms and conditions of employ-
ment from which a change could be inferred.”).
Because the facts in this case are analogous to those in
Burns, rather than Advanced Stretchforming, we believe
the remedy here should be the same as in Burns: an order
requiring the successor to bargain with the union after ex-
ercising its right to set initial terms and conditions. Re-
spondent Stein did not forfeit its right as a Burns successor
to unilaterally set the initial terms and conditions of em-
ployment applicable to the Laborers Local 534 unit em-
ployees. Accordingly, contrary to the judge, we find that
Respondent Stein did not violate Section 8(a)(5) and (1)
by unilaterally changing the existing terms and conditions
of employment of the Laborers Local 534 unit employees
contained in the collective-bargaining agreement negoti-
ated between TMS and Laborers Local 534 that was ex-
tended through December 31, 2017.11
Discharge of Ken Karoly
On January 6, 2018, Respondent Stein hired site laborer
Ken Karoly, a Laborers Local 534 unit employee. There-
after, Respondent Stein found that Karoly performed
poorly. Specifically, Respondent Stein cited Karoly for
“constantly complaining about working for [Stein],”
“show[ing] he is not a team player,” damaging company
property, and, on two occasions, not following written
rules and procedures. On April 18, 2018, pursuant to sec-
tion 17.05 of Respondent Stein’s collective-bargaining

11 We find it unnecessary to pass on whether Respondent Stein vio-
lated Sec. 8(a)(5) and (1) by applying the collective-bargaining agree-
ment it negotiated with Respondent IUOE Local 18 to the Laborers Local
534 unit employees. In light of our finding that Respondents Stein and
IUOE Local 18 violated Sec. 8(a)(2) and (1) and Sec. 8(b)(1)(A), respec-
tively, by applying that agreement to the Laborers Local 534 unit em-
ployees, finding the additional 8(a)(5) violation would not materially af-
fect the remedy.
agreement with Respondent IUOE Local 18, Respondent
Stein discharged Karoly. Section 17.05 of the Respond-
ents’ collective-bargaining agreement provided that
“[p]robationary employees may be laid off or discharged
as exclusive [sic] determined by the Company” and that
“[t]he probationary period shall be the ninety (90) days of
actual work.”
Although we agree with the judge that Respondent Stein
violated Section 8(a)(5) and (1) by discharging Karoly
within a probationary period it had unlawfully unilaterally
extended, we find the violation under a different rationale
than the judge. The judge found that because Respondent
Stein forfeited its right to set the initial terms and condi-
tions of employment for the Laborers Local 534 unit em-
ployees, Respondent Stein unlawfully applied a proba-
tionary period longer than what was in the expired Labor-
ers Local 534 collective-bargaining agreement with its
predecessor. However, as we have already found, Re-
spondent Stein had the right to set the initial terms and
conditions of employment of the Laborers Local 534 unit
employees. In fact, Respondent Stein did exactly that on
November 9 when it distributed a handout to the Laborers
Local 534 employees, which notified them that employees
hired by Respondent Stein would be subject to a “90 day
probationary period.” As of April 18, 2018, when it dis-
charged Karoly, Respondent Stein had not negotiated a
change to that 90-day probationary period with Karoly’s
bargaining representative, Laborers Local 534. As a con-
sequence, under the terms Respondent Stein set forth in
hiring Karoly and his coworkers, Karoly’s probationary
period had elapsed by the date he was discharged. Be-
cause Respondent Stein discharged Karoly pursuant to a
probationary period that it had unlawfully unilaterally ex-
tended—from “90 day[s]” to “90 days of actual work”—
we find that Respondent Stein violated Section 8(a)(5) and
(1).12
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 9 and renumber the subse-
quent paragraphs accordingly.
AMENDED REMEDY
As addressed above, because Respondent Stein did not
forfeit its right to set the initial terms and conditions of
employment applicable to the Laborers Local 534 unit
12 To the extent Respondent Stein maintains that it would have disci-
plined or discharged Karoly even in the absence of its unlawful unilateral
extension of Karoly’s probationary period, Respondent Stein is entitled
to litigate that issue in the compliance proceeding. See, e.g., Weyerhae-
user NR Co., 366 NLRB No. 169, slip op. at 1 fn. 5 (2018); HTH Corp.,
356 NLRB 1397, 1400 (2011), enfd. 693 F.3d 1051 (9th Cir. 2012).
STEIN, INC. 5
employees, we shall amend the judge’s remedy so as not
to order Respondent Stein to retroactively restore the
preexisting terms and conditions of employment con-
tained in the Laborers’ Local 534 collective-bargaining
agreement with TMS that was extended through Decem-
ber 31. However, on request by Laborers Local 534, Re-
spondent Stein will be required to rescind any departures
from the terms and conditions of employment that existed
immediately prior to its unlawful recognition of Respond-
ent IUOE Local 18, which would include reinstating the
lawful initial terms and conditions that Respondent Stein
announced to bargaining unit employees on November
9.13
In addition, we find merit in the General Counsel’s lim-
ited cross-exception to the judge’s failure to include an af-
firmative bargaining order requiring Respondent Stein to
recognize and bargain with Laborers Local 534.14
ORDER
A. The National Labor Relations Board orders that the
Respondent, Stein, Inc., Middletown, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively, on request, with Laborers’ International Union
of North America, Local 534 (Laborers Local 534) as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate bargaining unit (the
Laborers Local 534 unit) concerning wages, hours, and
other terms and conditions of employment:
[A]ll general labor work and clean up, laborer-fore-
man, lancer/jack hammer man, switch cleaning, util-
ity laborer, quality control laborer, water tenders
(knock out and all pits), safety men and all equipment
to perform their task, pumps (4” and smaller), and
changing bags in bag houses, employees employed by
[Respondent Stein, Inc.] at its AK Steel, Middletown,
Ohio facility, excluding all other production and
maintenance employees, office clerical employees,
professional employees, guards and supervisors as
defined by the National Labor Relations Act of 1947.
(b) Granting assistance to Respondent International
Union of Operating Engineers, Local 18 (Respondent
IUOE Local 18), including by granting Respondent IUOE
Local 18 access to the jobsite and assistance in distributing

13 No exceptions were filed to the judge’s denial of the General Coun-
sel’s request for a notice-reading remedy.
14 The judge’s Remedy included ordering Respondent Stein to recog-
nize and bargain with Laborers Local 534, but he failed to include the
appropriate affirmative bargaining language. Further, Respondent Stein
acknowledged in its brief in support of exceptions that an affirmative
bargaining order is the appropriate remedy for an 8(a)(5) violation under
Respondent IUOE Local 18 membership applications and
dues-checkoff authorizations, and recognizing it as the ex-
clusive collective-bargaining representative of the Labor-
ers Local 534 unit employees at a time when Respondent
IUOE Local 18 does not represent an unassisted and un-
coerced majority of the employees in the Laborers Local
534 unit.
(c) Applying the terms and conditions of employment
of the collective-bargaining agreement between Respond-
ent Stein, Inc. and Respondent IUOE Local 18, including
the union-security and dues-checkoff provisions, to the
Laborers Local 534 unit employees at a time when Re-
spondent IUOE Local 18 does not represent an unassisted
and uncoerced majority of the employees in the Laborers
Local 534 unit.
(d) Telling potential job applicants who worked for its
predecessor, including those in the Laborers Local 534
unit, that all bargaining unit jobs related to the perfor-
mance of the slag/scrap processing will be under Respond-
ent IUOE Local 18.
(e) Threatening employees, including those in the La-
borers Local 534 unit, that they will be removed from the
work schedule if they do not submit a Respondent IUOE
Local 18 membership application and dues-checkoff au-
thorization.
(f) Changing the terms and conditions of employment
of the Laborers Local 534 unit employees, including their
probationary period, from those it initially established
without first notifying Laborers Local 534 and giving it an
opportunity to bargain.
(g) Discharging or otherwise disciplining employees
pursuant to unlawful unilateral changes to the terms and
conditions of employment of the Laborers Local 534 unit
employees, including their probationary period.
(h) 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) Withdraw and withhold all recognition from Re-
spondent IUOE Local 18 as the exclusive collective-bar-
gaining representative of the Laborers Local 534 unit em-
ployees, unless and until that labor organization has been
certified by the National Labor Relations Board as the ex-
clusive representative of those employees.
Burns. In addition, in its answering brief to the General Counsel’s lim-
ited cross-exceptions, Respondent Stein takes issue generally with the
judge’s remedial relief but not specifically with the General Counsel’s
request for an affirmative bargaining order. We therefore find it unnec-
essary to provide a specific justification for that remedy. See Arbah Ho-
tel Corp. d/b/a Meadowlands View Hotel, 368 NLRB No. 119, slip op.
at 1 fn. 2 (2019) (citing cases).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
Respondent IUOE Local 18, including the union-security
and dues-checkoff provisions, to the Laborers Local 534
unit employees, unless and until that labor organization
has been certified by the National Labor Relations Board
as the exclusive representative of those employees.
(c) Recognize and, on request, bargain with Laborers
Local 534 as the exclusive collective-bargaining repre-
sentative of the Laborers Local 534 unit employees con-
cerning wages, hours, and other terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement.
(d) Jointly and severally with Respondent IUOE Local
18, reimburse all employees in the Laborers Local 534
unit for all initiation fees, dues, and other moneys paid by
them to Respondent IUOE Local 18 or withheld from their
wages pursuant to the collective-bargaining agreement be-
tween Respondent Stein and Respondent IUOE Local 18,
in the manner set forth in the remedy section of the judge’s
decision as amended in this decision.
(e) Notify Laborers Local 534, in writing, of all
changes made or effective on or after January 1, 2018, to
the terms and conditions of employment for those in the
Laborers Local 534 unit and, on request of Laborers Local
534, rescind any departures from the terms and conditions
of employment that existed immediately prior to its un-
lawful recognition of Respondent IUOE Local 18.
(f) Within 14 days from the date of this Order, offer
Ken Karoly full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(g) Make Ken Karoly whole for any loss of earnings
and other benefits suffered as a result of Respondent Stein,
Inc.’s unilaterally implemented change to his probationary
period, in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(h) Compensate Ken Karoly for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 9, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year.
(i) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Ken Karoly as a result of the unilaterally implemented
change to his probationary period, and within 3 days

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
thereafter, notify Ken Karoly in writing that this has been
done and that such discharge will not be used against him
in any way.
(j) 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, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(k) Within 14 days after service by the Region, post at
the Middletown, Ohio facility copies of the attached no-
tice marked “Appendix A.”15 Copies of the notice, on
forms provided by the Regional Director for Region 9, af-
ter being signed by Respondent Stein, Inc.’s authorized
representative, shall be posted by Respondent Stein, Inc.
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. In addition to physical posting of pa-
per notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if Respondent Stein, Inc.
customarily communicates with its employees by such
means. Reasonable steps shall be taken by Respondent
Stein, Inc. to ensure that the notices are not altered, de-
faced, or covered by any other material. If Respondent
Stein, Inc. has gone out of business or closed the facility
involved in these proceedings, Respondent Stein, Inc.
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by Respondent Stein, Inc., or its predecessor, at
any time since November 9, 2017.
(l) Within 21 days after service by the Region, file with
the Regional Director for Region 9 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that Respondent Stein, Inc. has taken
to comply.
B. The National Labor Relations Board orders that the
Respondent, International Union of Operating Engineers,
Local 18, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Accepting assistance, including access to the jobsite
and assistance in distributing Respondent IUOE Local 18
membership applications and dues-checkoff authoriza-
tions, from Respondent Stein, Inc., or recognition from
Respondent Stein, Inc. as the exclusive collective-
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
STEIN, INC. 7
bargaining representative of the employees in the Labor-
ers Local 534 unit described below at a time when it does
not represent an uncoerced majority of the employees in
the Laborers Local 534 unit:
[A]ll general labor work and clean up, laborer-fore-
man, lancer/jack hammer man, switch cleaning, util-
ity laborer, quality control laborer, water tenders
(knock out and all pits), safety men and all equipment
to perform their task, pumps (4” and smaller), and
changing bags in bag houses, employees employed by
[Respondent Stein, Inc.] at its AK Steel, Middletown,
Ohio facility, excluding all other production and
maintenance employees, office clerical employees,
professional employees, guards and supervisors as
defined by the National Labor Relations Act of 1947.
(b) Maintaining and enforcing its collective-bargaining
agreement with Respondent Stein, Inc., or any extension,
renewal, or modification thereof, including the union-se-
curity and dues-checkoff provisions, so as to cover the La-
borers Local 534 unit employees, unless and until it has
been certified by the Board as the collective-bargaining
representative of those employees.
(c) Threatening employees, including those in the La-
borers Local 534 unit, that they will be removed from the
work schedule if they do not submit a Respondent IUOE
Local 18 membership application and dues-checkoff au-
thorization.
(d) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Decline recognition as the exclusive collective-bar-
gaining representative of the Laborers Local 534 unit em-
ployees, unless and until Respondent IUOE Local 18 has
been certified as the exclusive representative of those em-
ployees.
(b) Jointly and severally with Respondent Stein, Inc.,
reimburse all present and former Laborers Local 534 unit
employees for all initiation fees, dues, and other moneys
paid to Respondent IUOE Local 18 or withheld from their
wages pursuant to Respondent IUOE Local 18’s collec-
tive-bargaining agreement with Respondent Stein, Inc., in
the manner set forth in the remedy section of the judge’s
decision as amended in this decision.

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
(c) Within 14 days after service by the Region, post at
its headquarters and at its offices and meeting halls in
Franklin, Ohio, copies of the attached notice marked “Ap-
pendix B.”16 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by
Respondent IUOE Local 18’s authorized representative,
shall be posted by Respondent IUOE Local 18 for 60 con-
secutive days in conspicuous places, including all places
where notices to employees and members are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, or other
electronic means, if Respondent IUOE Local 18 custom-
arily communicates with its members by such means.
Reasonable steps shall be taken by Respondent IUOE Lo-
cal 18 to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Within 21 days after service by the Region, file with
the Region Director for Region 9 a sworn certification of
a responsible official on a form provided by the Region
attesting to the steps that Respondent IUOE Local 18 has
taken to comply.
Dated, Washington, D.C. January 28, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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 ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
collectively, on request, with Laborers’ International Un-
ion of North America, Local 534 (Laborers Local 534) as
the exclusive collective-bargaining representative of the
employees in the following appropriate bargaining unit
(the Laborers Local 534 unit) concerning wages, hours,
and other terms and conditions of employment:
[A]ll general labor work and clean up, laborer-fore-
man, lancer/jack hammer man, switch cleaning, util-
ity laborer, quality control laborer, water tenders
(knock out and all pits), safety men and all equipment
to perform their task, pumps (4” and smaller), and
changing bags in bag houses, employees employed by
[Stein, Inc.] at its AK Steel, Middletown, Ohio facil-
ity, excluding all other production and maintenance
employees, office clerical employees, professional
employees, guards and supervisors as defined by the
National Labor Relations Act of 1947.
WE WILL NOT grant assistance to International Union of
Operating Engineers, Local 18 (IUOE Local 18), includ-
ing by granting IUOE Local 18 access to the jobsite and
assistance in distributing IUOE Local 18 membership ap-
plications and dues-checkoff authorizations, and WE WILL
NOT recognize it as the exclusive collective-bargaining
representative of the Laborers Local 534 unit employees
at a time when IUOE Local 18 does not represent an un-
assisted and uncoerced majority of the employees in the
Laborers Local 534 unit.
WE WILL NOT apply the terms and conditions of employ-
ment of our collective-bargaining agreement with IUOE
Local 18, including the union-security and dues-checkoff
provisions, to the Laborers Local 534 unit employees at a
time when IUOE Local 18 does not represent an unas-
sisted and uncoerced majority of the employees in the La-
borers Local 534 unit.
WE WILL NOT tell potential job applicants who worked
for our predecessor, including those in the Laborers Local
534 unit, that all bargaining unit jobs related to the perfor-
mance of the slag/scrap processing will be under IUOE
Local 18.
WE WILL NOT threaten employees, including those in the
Laborers Local 534 unit, that they will be removed from
the work schedule if they do not submit an IUOE Local 18
membership application and dues-checkoff authorization.
WE WILL NOT change the terms and conditions of em-
ployment of the Laborers Local 534 unit employees, in-
cluding their probationary period, from those we initially
established without first notifying Laborers Local 534 and
giving it an opportunity to bargain.
WE WILL NOT discharge or otherwise discipline employ-
ees pursuant to our unlawful unilateral changes to the
terms and conditions of employment of the Laborers Local
534 unit employees, including their probationary period.
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 withdraw and withhold all recognition from
IUOE Local 18 as the exclusive collective-bargaining rep-
resentative of the Laborers Local 534 unit employees, un-
less and until that labor organization has been certified by
the National Labor Relations Board as the exclusive rep-
resentative of those employees.
WE WILL refrain from applying the terms and conditions
of employment of a collective-bargaining agreement with
IUOE Local 18, including the union-security and dues-
checkoff provisions, to the Laborers Local 534 unit em-
ployees, unless and until that labor organization has been
certified by the National Labor Relations Board as the ex-
clusive representative of those employees.
WE WILL recognize and, on request, bargain with La-
borers Local 534 as the exclusive collective-bargaining
representative of the Laborers Local 534 unit employees
concerning wages, hours, and other terms and conditions
of employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
WE WILL, jointly and severally with IUOE Local 18, re-
imburse all employees in the Laborers Local 534 unit for
all initiation fees, dues, and other moneys paid by them to
IUOE Local 18 or withheld from their wages pursuant to
our collective-bargaining agreement with IUOE Local 18,
plus interest.
WE WILL notify Laborers Local 534, in writing, of all
changes made or effective on or after January 1, 2018, to
the terms and conditions of employment for those in the
Laborers Local 534 unit, and WE WILL, on request of La-
borers Local 534, rescind any departures from the terms
and conditions of employment that existed immediately
prior to our unlawful recognition of IUOE Local 18.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ken Karoly full reinstatement to his former
job or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
STEIN, INC. 9
WE WILL make Ken Karoly whole for any loss of earn-
ings and other benefits suffered as a result of our unilater-
ally implemented change to his probationary period, less
any net interim earnings, plus interest, and WE WILL also
make Ken Karoly whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Ken Karoly for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 9, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge imposed on Ken Karoly as a result of the unilater-
ally implemented change to his probationary period, and
WE WILL, within 3 days thereafter, notify Ken Karoly in
writing that this has been done and that such discharge will
not be used against him in any way.
STEIN, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/09-CA-215131 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.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
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 vi-
olated 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 ac-
tivities.
WE WILL NOT accept assistance, including access to the
jobsite and assistance in distributing our membership ap-
plications and dues-checkoff authorizations, from Stein,
Inc., and WE WILL NOT accept recognition from Stein, Inc.
as the exclusive collective-bargaining representative of
the employees in the Laborers Local 534 unit described
below at a time when we do not represent an uncoerced
majority of the employees in the Laborers Local 534 unit:
[A]ll general labor work and clean up, laborer-fore-
man, lancer/jack hammer man, switch cleaning, util-
ity laborer, quality control laborer, water tenders
(knock out and all pits), safety men and all equipment
to perform their task, pumps (4” and smaller), and
changing bags in bag houses, employees employed by
[Stein, Inc.] at its AK Steel, Middletown, Ohio facil-
ity, excluding all other production and maintenance
employees, office clerical employees, professional
employees, guards and supervisors as defined by the
National Labor Relations Act of 1947.
WE WILL NOT maintain and enforce our collective-bar-
gaining agreement with Stein, Inc., or any extension, re-
newal, or modification thereof, including the union-secu-
rity and dues-checkoff provisions, so as to cover the La-
borers Local 534 unit employees, unless and until we have
been certified by the Board as the collective-bargaining
representative of those employees.
WE WILL NOT threaten employees, including those in the
Laborers Local 534 unit, that they will be removed from
the work schedule if they do not submit an IUOE Local 18
membership application and dues-checkoff authorization.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above. WILL
decline recognition as the exclusive collective-bargaining
representative of the Laborers Local 534 unit employees,
unless and until we have been certified as the exclusive
representative of those employees.
WE WILL, jointly and severally with Stein, Inc., reim-
burse all present and former Laborers Local 534 unit em-
ployees for all initiation fees, dues, and other moneys paid
to us or withheld from their wages pursuant to our collec-
tive-bargaining agreement with Stein, Inc., plus interest.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 18
The Board’s decision can be found at
http://www.nlrb.gov/case/09-CA-215131 or by using the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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.
STEIN, INC.
Daniel Goode and Theresa Laite, Esqs., for the General Counsel.
Keith Pryatel, Esq, for Respondent Stein, Inc.
Tim Fadel, Esq., for Respondent International Union of Operat-
ing Engineers (IUOE) Local 18.
Ryan Hymore, Esq., for Charging Party Laborers’ International
Union of North America (LIUNA), Local 534.
DECISION
I. INTRODUCTION1
ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. These
consolidated cases were tried on September 12, 13, and 17, and
October 22 and 23, 2018,2 in Cincinnati, Ohio, based on allega-
tions by Laborers’ International Union of North America
(LIUNA), Local 534 (“Laborers Local 534” or “Local 534”) that
Stein, Inc. and the International Union of Operating Engineers
(IUOE) Local 18 (“IUOE Local 18” or “Local 18”)(collectively
“Respondents”) violated the National Labor Relations Act
(“Act”). The alleged violations began when Stein, a successor
employer, unilaterally merged the predecessor’s three existing
bargaining units into one unit and then recognized and entered
into a collective-bargaining agreement with IUOE Local 18 as
the exclusive bargaining representative of that merged unit, at a
time when Laborers Local 534 continued to represent a majority
of the employees in one of the three units.
The critical facts are largely undisputed. In 2017, Stein bid to
replace TMS International, Inc. (TMS) as the contractor per-
forming the scrap reclamation, slag removal, and processing of
slag (“slag/scrap work”) for AK Steel at its Middletown, Ohio
location. For over 20 years, TMS, and its predecessors, perform-
ing this slag/scrap work utilized three bargaining units, individ-
ually represented by IUOE Local 18, Laborers Local 534, and
Truck Drivers, Chauffeurs and Helpers Local Union No. 100, af-
filiated with the International Brotherhood of Teamsters (“Team-
sters Local 100”).3 Although Stein was aware of the three

1 Abbreviations are as follows: “Tr.” for transcript; “Jt. Exh.” for joint
exhibits; “GC Exh.” for General Counsel’s exhibit; “Stein Exh.” for
Stein’s exhibits; “Local 18 Exh.” for IUOE Local 18’s exhibits.
2 All dates are 2018, unless otherwise stated.
existing bargaining relationships, it was intent on having only
one unit, represented by one union. To that end, in August 2017,
Stein contacted IUOE Local 18 about entering into an agreement
that would combine the three units into one, with Local 18 as the
sole representative of that merged unit. Stein selected Local 18
because it represented a majority of the TMS employees per-
forming the slag/scrap work. IUOE Local 18 agreed, and on Oc-
tober 12, 2017, Stein recognized Local 18 as the representative
of the merged unit. Stein did not contact Teamsters Local 100
or Laborers Local 534, even though there was no evidence of
loss of majority support among those in their respective units.
On November 9, 2017, Stein met with TMS employees at the
Middletown location to inform them that it would be assuming
the contract for the slag/scrap work, and that if employees
wanted to work for Stein they would need to go through the ap-
plication process. Stein advised that those hired would be work-
ing under different terms and conditions of employment, and that
all jobs will be under IUOE Local 18. Respondents executed
their collective-bargaining agreement covering the merged unit
on December 22, 2017, prior to hiring any employees. On Janu-
ary 1, Stein commenced operations, and by January 6, it had
hired and employed a “substantial and representative comple-
ment” of employees. A majority of those employees were for-
mer TMS employees, including 12 of the 14 laborers represented
by Laborers Local 534. Since January 1, Respondents have
maintained and enforced the terms of their agreement, including
the union-security and dues-checkoff provisions. Those terms
differ from the terms in effect for the laborers when they worked
for TMS prior to January 1. In early February, Laborers Local
534 made an oral demand for recognition as the exclusive bar-
gaining representative of the laborers unit, and then followed
upon with a written demand for recognition, as well as a request
for bargaining, on February 20. Stein has failed or refused to
recognize and bargain with Local 534.
The amended consolidated complaint alleges that Stein, as a
successor employer, violated Section 8(a)(1), (2), (3), and (5) of
the Act by the above conduct, and violated Section 8(a)(1) and
(2) of the Act when it rendered unlawful assistance to IUOE Lo-
cal 18, and threatened employees, to get them to join and pay
dues and fees to IUOE Local 18—all at a time when IUOE Local
18 did not represent an unassisted and uncoerced majority of the
employees in the laborers unit. The amended consolidated com-
plaint also alleges that IUOE Local 18 violated Section
8(b)(1)(A) and (b)(2) of the Act by its role in the above conduct.
For the reasons stated below, I find merit to the alleged viola-
tions.
II. STATEMENT OF THE CASE
On February 20, Laborers Local 534 filed an unfair labor prac-
tice charge against Stein in Case 09‒CA‒215131. The following
day, Local 534 filed an unfair labor practice charge against IUOE
Local 18 in Case 09‒CB‒215147. Local 534 amended both
3 These consolidated cases were tried together with the amended con-
solidated complaint issued based on charges that Teamsters Local 100
filed against Stein and IUOE Local 18 in Cases 09‒CA‒214633 and 09‒
CB‒214595, respectively, alleging similar violations. Those allegations
will be addressed in a separate decision.
STEIN, INC. 11
charges on March 26. On April 19, the Regional Director for
Region 9 of the National Labor Relations Board (“Board”), on
behalf of the General Counsel, issued an order consolidating
cases and consolidated complaint and notice of calendar call in
these cases, and on April 30, issued an amendment to that order
consolidating cases and consolidated complaint. On May 3,
Stein filed its answer. On May 8, Local 534 filed an unfair labor
practice charge against Stein in Case 09‒CA‒219834, and later
amended that charge on June 27. On June 29, the Regional Di-
rector issued a second order consolidating cases and consoli-
dated complaint. The April 19, April 30, and June 29, complaint
and amendments will be referred to, collectively, as the amended
consolidated complaint. On July 11, Stein filed its answer to the
amended consolidated complaint. On July 12, IUOE Local 18
filed its answer to the amended consolidated complaint.4
At the hearing, all parties were afforded the right to call and
examine witnesses, present relevant documentary evidence, and
argue their respective legal positions orally. Stein, IUOE Local
18, and the General Counsel filed timely post-hearing briefs,
which I have carefully considered. Accordingly, based upon the
entire record, including the post-hearing briefs and my observa-
tions of the credibility of the witnesses, I make the following
findings, conclusions of law, and recommended remedy and or-
der.
III. FINDINGS OF FACT5
A. Jurisdiction, Labor Organizations, and Agents
Stein is a corporation with a principal office in Broadview
Heights, Ohio that has been engaged in slag processing and steel
mill services at various locations throughout the United States,
including the slag/scrap work at the AK Steel Middletown facil-
ity in Middletown, Ohio. In conducting its operations during the
12-month period ending April 15, Stein will annually perform
services valued in excess of $50,000 outside the State of Ohio.
Based on a projection of its operations since about January 1, at
which time Stein commenced its operations at its Middletown,
Ohio facility, it will annually sell and ship from its Middletown,
Ohio facility goods valued in excess of $50,000 directly to points
outside the State of Ohio. Stein admits, and I find, it is and has
been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.

4 On July 9, the General Counsel filed a motion in limine to preclude
Respondents from adducing evidence at the hearing in support of Re-
spondents’ respective affirmative defenses related to whether the rela-
tionships between TMS and Teamsters Local 100 and Laborers Local
534, respectively, were governed by Sec. 8(f) of the Act, claiming such
evidence was irrelevant to the issues raised in the amended consolidated
complaint. Stein opposed the motion. At the hearing, I denied the mo-
tion and allowed Respondents to present relevant evidence related to the
nature of the individual bargaining relationships between TMS, and its
predecessors, and the three unions at issue.
5 Although I have included record citations to highlight particular tes-
timony or exhibits, my findings and conclusions are not based solely on
those specific citations, but rather on my review and consideration of the
entire record. The findings of fact are a compilation of credible testimony
and other evidence, as well as logical inferences drawn therefrom. To
the extent testimony contradicts with the findings herein, such testimony
has been discredited, either as having been in conflict with credited
It is further admitted, and I find, that, at all material times,
Laborers Local 534, Teamsters Local 100, and IUOE Local 18
have been labor organizations within the meaning of Section 2(5)
of the Act.
The following individuals are admitted supervisors and agents
of Stein within the meaning of Section 2(11) and 2(13) of the
Act, respectively: Dave Holvey (vice president/chief financial
officer), Bill Forman (vice president of operations), Douglas
Huffnagel (area manager), Jeff Porter (site superintendent), and
Jason Westover (shift supervisor). The following are admitted
agents of IUOE Local 18 within the meaning Section 2(13) of
the Act: Jefferson S. Powell (district manager), Richard E. Dal-
ton (business manager), Thomas P. Byers (president), and Justin
Gabbard (business agent).
B. Unfair Labor Practices
1. Background
AK Steel Holding Corporation (“AK Steel”) is a steel making
company headquartered in Westchester Township, Butler
County, Ohio. The steel making plant at issue is located on an
1100-acre parcel of land in Middletown, Ohio. The Middletown
location includes, among others, a blast furnace, a basic oxygen
furnace, a processing plant, a kisch plant, a mechanic shop, and
various offices.
The dispute at issue is limited to the slag/scrap work per-
formed at the AK Steel Middletown location. Slag is a by-prod-
uct of the steel making process. It is produced when the impuri-
ties separate from the molten steel in the furnaces. Slag begins
as a molten liquid melt that solidifies upon cooling. Once
cooled, the slag is processed and often sold as an aggregate or
base for roads and highways.
For decades, AK Steel has contracted out the slag/scrap work
performed at its Middletown location through a competitive-bid-
ding process. AK Steel has contracted with McGraw Construc-
tion Co., then International Mill Services, Inc., and then Tube
City Inc. d/b/a Olympic Mill Service. Tube City and Interna-
tional Mill Services later merged and continued to perform the
slag/scrap work at issue under various corporate names, includ-
ing Tube City LLC d/b/a IMS Division Tube City IMS, Tube
testimony or other evidence, or because it was otherwise incredible and
unworthy of belief. In assessing credibility, I have relied primarily on
witness demeanor. I also have considered factors such as: the context of
the witness’s testimony, the quality of the witness’s recollection, testi-
monial consistency, the presence or absence of corroboration, the weight
of the respective evidence, established or admitted facts, inherent proba-
bilities, and reasonable inferences that may be drawn from the record as
a whole. See Double D Construction Group, 339 NLRB 303, 305
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Auto-
motive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom.,
56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-
or-nothing propositions. Indeed, nothing is more common in judicial de-
cisions than to believe some, but not all, of a witness’s testimony.
Daikichi Sushi, supra at 622; 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)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
City LLC, Tube City IMS, LLC, and, most recently, TMS. (Tr.
771‒772) (Local 18 Exh. 2).6
Over the years, the procedure for removing and processing
slag has largely remained the same. The liquid slag is removed
from the furnace and placed into hot pits, where it is cooled.
Once cooled, front loaders dig up and load the slag onto off-road
dump trucks. The trucks transport the slag over to the south side
of the property where it is unloaded. A crane with a large magnet
is run over the slag to extract any scrap metal that is then recy-
cled. The slag material is run through the processing plant which
has large hoppers, shakers, and screens that separate the slag by
size. The processed slag is then loaded onto a dump truck, trans-
ported to the stockpiles, and dumped into specific piles by type
and size. Scrap reclamation includes extracting pieces of metal
from the slag and cutting large pieces of metal into smaller sizes,
and then reselling that metal back to AK Steel.
TMS and its predecessors performed this slag/scrap work uti-
lizing three bargaining units: operators, drivers, and laborers.
Each unit performed discrete tasks within its jurisdiction, and
each unit was represented for purposes of collective bargaining
by its respective union. Teamsters Local 100 represents the driv-
ers. The drivers operate the large (35-ton to 60-ton) off-road
dump trucks used to transport the slag from the furnaces to the
area of the property where the slag/scrap work is performed and
then haul the processed slag for storage. They also spray the dirt
roads on the jobsite using a water truck to keep the dust down in
accordance with environmental regulations. They also leave the
jobsite to purchase parts or supplies from area stores using a
company pick-up truck. Laborers Local 534 represents the la-
borers. The laborers primarily handle safety, fire watch, manual
cleaning, lancing/torching, and knockouts. Lancing/torching are
the processes used to cut large pieces of metal into smaller, more
manageable pieces. Knockout is the removing of slag remnants
from large pots or cauldrons. IUOE Local 18 represents the op-
erators. The operators run all the heavy equipment (e.g., front-
end loaders, road graders, forklifts, backhoes, bobcats/skid
steers, fuel trucks, cranes, portable plants, scrap handlers, tele-
handlers, etc.); everything except for the dump trucks and water
trucks. The operators also include mechanics that maintain and
service all the vehicles and equipment.
The three separate units historically worked alongside one an-
other performing their defined tasks. For instance, at the blast
furnace, the operator would run the front loaders to dig up the
cooled slag from the pits and load it onto the large off-road dump
trucks operated by the drivers. The laborers are present to handle
safety and fire watch, and help coordinate the staging of vehicles
and equipment. The three units communicate through two-way
radios.

6 From December 2004 through December 2007, Tube City, LLC and
International Mill Service, Inc. operated as separate wholly owned “sis-
ter” subsidiaries of Tube City IMS Corporation. Effective January 1,
2008, Tube City, LLC and International Mill Service, Inc. merged and
became Tube City IMS, LLC. Tube City IMS, LLC continued to operate
under the trade names of Tube City Division, Tube City IMS, and IMS
Division, Tube City IMS. (Local 18 Exh. 2). In around 2010, the com-
pany went public and became known as TMS. (Tr. 772).
The three units also attend the same daily briefings and
monthly safety meetings, and they use the same lunchroom,
shower facilities, locker room, and parking lot.
2. Recognition of Laborers Local 534, Laborers Local 534, and
IUOE Local 18
For decades, TMS and its predecessors separately recognized
and bargained with Laborers Local 534, Teamsters Local 100,
and IUOE Local 18. Each union has maintained successive in-
dividual collective-bargaining agreements with these contrac-
tors, setting forth the wages, hours, and other terms and condi-
tions of employment covering those employees in their respec-
tive bargaining units.
Laborers Local 534’s most-recent agreement was with Tube
City IMS, LLC, and it is dated March 1, 2013, to August 31,
2016. (Jt. Exh. 6). In this agreement, Local 534 is recognized
as “the sole and exclusive bargaining agent” for the following
unit (hereinafter referred to as “laborers unit”):
[A]ll general labor work and clean up, laborer-foreman,
lancer/jack hammer man, switch cleaning, utility laborer, qual-
ity control laborer, water tenders (knock out and all pits), safety
men and all equipment to perform their task [sic.], pumps (4”
and smaller), and changing bags in bag houses, employees em-
ployment by [Tube City IMS, LLC] at its AK Steel, Mid-
dletown, Ohio facility, excluding all other production and
maintenance employees, office clerical employees, profes-
sional employees, guards and supervisors as defined by [the
Act].
(Jt. Exh. 6, p. 2).7
On around July 29, 2016, John Ponzuric, the director of hu-
man resources for Tube City IMS, and Jerry Bowling, business
manager for Laborers Local 534, extended this agreement until
midnight August 31, 2017. On July 20, 2017, Bowling and Pon-
zuric again extended that agreement until December 31, 2017.
(Jt. Exh. 11)(hereinafter collectively referred to as the “Laborers
Local 534 collective-bargaining agreement”).
Teamsters Local 100’s most-recent agreement was with TMS,
and it is dated April 1, 2016 to December 31, 2017. In this agree-
ment, Local 100 is recognized as “the sole and exclusive bar-
gaining agent” for “all truck drivers employed by the Employer
at its AK Steel, Middletown, Ohio facility, excluding all other
production and maintenance employees, office clerical employ-
ees, professional employees, guards and supervisors as defined
by the [Act] ...” (Jt. Exh. 7, pg. 1) (hereinafter referred to as
“drivers unit”).8
IUOE Local 18’s most recent collective-bargaining agreement
(pre Stein) was with Tube City IMS, LLC, and it is dated October
1, 2015 to September 30, 2018. In this agreement, IUOE Local
18 is recognized as “the sole and exclusive bargaining agent” for
7 Except for “quality control laborer,” this is the same bargaining unit
described in the agreement between Tube City LLC and Laborers Local
54, effective from February 28, 2010 to February 28, 2013. (Jt. Exh. 2).
8 This is the same unit described in the April 1, 2010 to March 31,
2013 agreement and the April 1, 2013 to March 31, 2016 agreement be-
tween Tube City IMS, LLC and Teamsters Local 100. (Jt. Exhs. 3 and
4).
STEIN, INC. 13
“all heavy equipment operators, mechanics/maintenance opera-
tors, lube/service operators, plant/conveyor operators, and help-
ers employed by the Company at its A-K Steel, Middletown,
Ohio facility excluding all other production and maintenance
employees, office clerical employees, professional employees,
guards and supervisors as defined by the [Act].”9 (Jt. Exh. 8, pg.
1)(hereinafter referred to as “operators unit”).10
There is no dispute that TMS continued to recognize Laborers
Local 534, Teamsters Local 100, and IUOE Local 18 and applied
the terms and conditions of the applicable collective-bargaining
agreement to the applicable unit, until it ceased performing the
slag/scrap work at the Middletown location.
3. Stein bids to replace TMS and initiates contact with IUOE
Local 18
In 2017, AK Steel opened up for competitive bidding the con-
tract, which would be effective January 1, for the slag/scrap work
at the Middletown location. Stein and TMS are competitors in
their industry, and both submitted bids to perform the work. In
August 2017, Stein’s vice president/chief financial officer Dave
Holvey learned that Stein was the leading bidder for the contract.
It was Stein’s intention that, if it was awarded the contract, it
would perform the work using one bargaining unit, represented
by one union. (Tr. 186). To that end, in late August 2017, Holvey
contacted IUOE Local 18 about meeting to begin negotiating an
agreement. Holvey testified he selected IUOE Local 18 because,
according to a TMS employee roster, Local 18 represented a ma-
jority of the total employees performing the slag/scrap work at
the AK Steel Middletown location. (Tr. 189).11 At the time,
Holvey was aware Teamsters Local 100 represented TMS’s driv-
ers and Laborers Local 534 represented TMS’s laborers. Despite
this knowledge, Stein made no effort to contact either union. (Tr.
185‒186).
On August 22, 2017, representatives from Stein and IUOE Lo-
cal 18 met to discuss negotiating a new collective-bargaining
agreement. (Tr. 189) (G.C. Exh. 4). The parties continued to
meet to negotiate over the following weeks. Holvey was Stein’s
chief negotiator for these meetings. (Tr. 190). The record does
not address the specifics surrounding the parties’ negotiations,
but on October 12, 2017, Holvey emailed IUOE Local 18 busi-
ness representative Jeff Powell a draft collective-bargaining
agreement for him to review for their upcoming meeting. The
agreement recognized Local 18 as the bargaining representative
for the combined unit of drivers, laborers, and operators. (G.C.
Exh. 5). At the time Holvey sent this agreement, Local 18 had
not presented Stein with any authorization cards. (Tr. 192). On
October 23, 2017, Holvey sent Powell an email with a revised
copy of the proposed agreement, which contained their agreed-
upon changes. (G.C. Exh. 6). In that email, Holvey asked that

9 This is the same unit described in the December 1, 2012 to October
1, 2015 agreement between Tube City IMS, LLC and IUOE Local 18.
(Jt. Exh. 5).
10 In 1999, after Tube City, Inc. d/b/a Olympic Mill Service (“OMS”)
acquired the contract to perform the slag/scrap work at the Middletown
location, IUOE Local 18 requested voluntary recognition from OMS,
and later presented OMS with authorization cards from a majority of the
operators. (Tr. 693‒694). OMS thereafter recognized Local 18 as the
bargaining representative for all full-time heavy equipment operators,
Local 18 put together a communication sheet to give to those
contemplating the move to the Operating Engineers, because
there were several employees trying to understand the pension-
retirement and health plan differences from those offered by the
Laborers and Teamsters. Four days later, Holvey emailed Pow-
ell with a copy of the agreement, stating: “We would like to put
the agreement behind us and start planning to convert some of
the guys to the Operating Engineers.” (G.C. Exh. 6). This was
sent months before Stein assumed the AK Steel contract, and
months before it had hired a single employee to perform this
slag/scrap work.
At some point, AK Steel officially awarded Stein the contract
to perform the slag/scrap work, effective January 1, 2018. On
October 27, 2017, John Ponzuric of TMS notified Laborers Lo-
cal 534’s attorney that TMS would not be engaging in collective
bargaining with Local 534 for a successor agreement because
TMS would no longer be performing the slag/scrap work as of
midnight December 31, 2017. (Jt. Exhs. 1 and 12). On October
30, 2017, TMS sent written notification to all TMS employees,
Laborers Local 534, Teamsters Local 100, and IUOE Local 18,
which stated that TMS was “shutting down its operations at the
AK Steel Middletown facility” and that “[a]ll employees at the
facility will be impacted and this closing is expected to be per-
manent.”
At around this time, Stein began purchasing all of TMS’s pro-
cessing plants, buildings, trailers, furniture, fixtures, equipment
(except computers), trucks, skid steer, loader, crane, etc. at the
AK Steel Middletown location. (Tr. 218‒219)(Jt. Exhs. 20‒22).
Also, Stein’s area manager, Doug Huffnagel, began working on-
site at the Middletown location, observing TMS’s operations and
its employees.
4. Employee meetings
On November 9, 2017, Huffnagel held meetings with all the
TMS employees performing the slag/scrap work to discuss em-
ployment with Stein. Huffnagel read from the following docu-
ment:
Middletown Operations
Start date/hire date-January 1, 2018
All jobs will be under the Operating Engineers Local 18 Union
It is Stein, Inc.’s goal to hire as many TMS employees as pos-
sible who remain in good standing with TMS through January
1, 2018
Classification and Rates
Group Job description 1/1/2018
1 General Laborer $ 15.00
Mechanic Helper $ 17.50
non-licensed motorized equipment operators, mechanics/maintenance
operators, lube/service operators and plant/conveyor operators employ-
ment by OMS at the AK Steel Middletown, Ohio facility; excluding all
other production and maintenance employees, office clerical employees,
professional employees, guards and supervisors as defined by the Act.
(Local 18 Exh. 1).
11 IUOE Local 18 represented 42 of TMS’s 71 employees. (Jt. Exh.
1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Lancer $ 21.93
Lube man $ 20.45
Site Laborer/Safety $ 20.93
2 Truck Driver $ 21.12
3 General Operator $ 24.63
Crane Operator $ 24.63
B Mechanic $ 24.63
4 A Mechanic $ 25.00
Hot Pit Operator $ 26.13
Master Mechanic $ 26.25
The following holidays will be observed:
New Year’s Day, Memorial Day, Independence Day, La-
bor Day, Thanksgiving day, day after Thanksgiving, &
Christmas day
All questions regarding pension and health & welfare benefit
should be directed to the Operating Engineers union
Seniority for matters including job bids, layoffs and overtime
preference only will be determined on the date you were hired
by TMS regardless of trade. To retain your seniority position
you must commit to employment with Stein by November 20th
All prospective employees will be subject to a 90 day proba-
tionary period, a physical, and a background check
All TMS employees at Middletown will be measured for uni-
forms on Wednesday, November 15th
(Jt. Exh 13).
Huffnagel told the TMS employees that if they wanted to work
for Stein, they would need to complete an employment applica-
tion, sit for an in-person interview, and pass a physical examina-
tion, a drug screening test, and a background check. He also in-
formed them there was no guarantee that they would be hired.
(Tr. 143‒144; 288; 364; 469; 578).
5. November discussions
On November 21, 2017, Stein’s vice president/CFO Dave
Holvey sent IUOE Local 18 business representative Jeff Powell
another email regarding their contract negotiations. Holvey
stated that he had compared the agreement sent to him against
his copy, and they were in agreement. Holvey concluded his
email, “Let’s get this signed soon.” (G.C. Exh. 7). Holvey con-
tinued to follow-up by sending emails to Powell prodding him to
execute the agreement. (G.C. Exhs. 8 and 10). By December
22, 2017, Stein and IUOE Local 18 both executed their collec-
tive-bargaining agreement. (G. C. Exh. 11). As of that date,
Local 18 still had not presented Stein with any authorization
cards. (Tr. 206‒207).

12 TMS performed other, unrelated work, such as green coil and scarf-
ing work. TMS continued to perform scarfing work for AK Steel after
6. Collective-bargaining agreement between Stein and IUOE
Local 18
In Respondents’ collective-bargaining agreement, which is
dated January 1, 2018 through February 28, 2021, Stein recog-
nizes Local 18 as the exclusive collective-bargaining representa-
tive for all the hourly paid employees in the following job clas-
sifications: general laborer, mechanic helper, lancer, lube man,
site laborer/safety, truck driver, general operator, B-mechanic,
hot pit operator, A-mechanic, and master mechanic; excluding
individuals occupying salaried, watchperson, guard, or confiden-
tial clerical positions, or supervisory positions of the foreman
level, and above. (Jt. Exh. 16, pgs. 1 and 4). Many of these same
classifications are listed in the contracts covering the drivers unit
and the laborers unit. Respondents’ agreement contains union-
security and dues-check off provisions, which state:
5.01 For the duration of this Agreement, it shall be a condi-
tion of continued employment with the Company that
present employees who are members of the Union, and
new hires, within thirty (30) days of actual work, while
working within the bargaining, unit, shall become and
remain members of the Union to the extent of paying an
initiation fee, and membership dues uniformly required
as a condition of acquiring or retaining membership in
the Union.
5.02 The Company may hire new employees from any
source, and the. Union shalt accept into membership
each employee covered by this Agreement who tender
to the Union the periodic membership dues, and initia-
tion fees uniformly required as a condition of acquiring
or retaining membership in the Union.
5.03 Upon notification, by the Union, that a uniform admin-
istrative dues deduction has been authorized by all em-
ployees of the Company, the Company shall deduct said
uniform administrative dues. The Union shall be respon-
sible for obtaining all individually signed authorizations.
…
5.06 The Company, upon written request of the Union, shall
discharge any employee within seven (7) working days
after receipt of such notice who fails to tender the peri-
odic dues, and initiation fees uniformly required by the
Union as a condition of acquiring or retaining member-
ship in the Union.
(Jt. Exh. 16, p. 2).
Stein never notified Laborers Local 534 or Teamsters Local
100 that it had merged the three units, recognized IUOE Local
18 as the representative of that unit, and/or that it entered into a
contract with Local 18 altering the wages, hours, and other terms
and conditions of employment applicable to the drivers unit and
the laborers unit.
7. Hiring
TMS ceased performing the slag/scrap work for AK Steel at
the Middletown location on December 31, 2017.12 As of that
December 31, 2017. This work was never performed by the three units
at issue. (Tr. 321.)
STEIN, INC. 15
date, TMS employed 15 drivers represented by Teamsters Local
100, 14 laborers represented by Laborers Local 534, and 42 op-
erators represented by IUOE Local 18. (Jt. Exh. 1).
In November and December 2017, Stein held job interviews
with those TMS employees who applied for jobs to continue
working at the Middletown location. Huffnagel was present for
several of the interviews. He estimated that these interviews
lasted between 5 and 45 minutes each.13
The parties have stipulated that on January 1 and/or by Janu-
ary 6, Stein had hired and employed a “substantial and repre-
sentative complement” of employees to perform the slag/scrap
work at AK Steel’s Middletown location. (Jt. Exh. 1). On Janu-
ary 1, Stein had 38 employees. This included 34 former TMS
employees, consisting of 25 from the operators unit, 6 from the
drivers unit, and 3 from the laborers unit. By January 2, Stein
hired 18 more, for a total of 56 employees. This included 51 for-
mer TMS employees, consisting of 36 from the operators unit, 7
from the drivers unit, and 8 from the laborers unit. By January
6, Stein hired 4 more for a total of 60 employees. This included
56 former TMS employees, consisting of 38 from the operators
unit, 10 from the drivers unit, and 12 from the laborers unit. (Jt.
Exh. 1). Therefore, as of January 2, Stein employed a majority
of the TMS employees from each of the three bargaining units.
Stein also hired several of TMS’s supervisors (Chadwick
Bare, John Howard, David Marville, and Nathan Prince), as well
as several non-TMS supervisors, including Jason Westover (gen-
eral foreman) and Jeffrey Porter (site superintendent). Doug
Huffnagel was Stein’s area manager. (Jt. Exh. 18).
8. Commencement of operations
On January 1, Stein began performing the slag/scrap work for
AK Steel at the Middletown location. Stein used the buildings,
trailers, furniture, fixtures, trucks, and equipment acquired from
TMS in performing this work, and it acquired some additional
equipment and vehicles. Each of the former TMS employees
hired to work for Stein testified that he continued to perform the
same duties and tasks, using essentially the same equipment, as
when employed by TMS.
As of January 1, Stein began applying the terms of Respond-
ents’ collective-bargaining agreement on all employees perform-
ing the slag/scrap work. In addition to the recognition provision
and the bargaining unit description, this agreement differed in
several respects from differed in several respects from the terms
and conditions in effect covering the laborers unit prior to Janu-
ary 1. Specifically, there is no dispute Stein altered or did not

13 At the hearing, Huffnagel testified that while interviewing appli-
cants he advised them that they would be cross-trained on other duties,
but he did not specify what that cross-training would involve. He testi-
fied that he mentioned this to every applicant he intended to hire. (Tr.
1252‒1255). I do not credit this testimony. There is no other evidence—
testimony or document—confirming that Huffnagel mentioned cross-
training or the assignment of cross-jurisdictional work during the inter-
views. Huffnagel said he wrote a reminder on his interview notes to
mention it to applicants during the interviews, but he destroyed the notes
once the interviews were completed. Additionally, Huffnagel addressed
the interviewing process in his pre-hearing affidavit. There is no mention
that he discussed cross-training or the assignment of cross-jurisdictional
work. Instead, his affidavit states that he told applicants that they will
continue: hourly pension contributions to Trustees of the Ohio
Laborers District Council, Ohio Contractors Association Insur-
ance and Pension Fund; hourly health and welfare contributions
to Trustees of the Ohio Laborers District Council, Ohio Contrac-
tors Association Insurance and Pension Fund; hourly contribu-
tions for Training & Apprenticeship and Laborers’ District
Council of Ohio, wage rates; shift differential; overtime pay-
ments in excess of 8 hours per day; vacation pay; work schedule;
call outs or unscheduled overtime outside of the regular or estab-
lished shifts; seniority provisions; safety equipment and protec-
tive clothing; and definition and assignment work, conditions of
work, and job classifications; and probationary period. (G.C.
Exh. 1).
9. Requests to bargain
On February 20, Laborers Local 534’s attorney, Ryan Hy-
more, sent an email to Stein’s attorney, Kieth Pryatel, following
up on their earlier communication. (Jt. Exh. 17). Hymore wrote
that it was his understanding that Local 534 had already de-
manded recognition from Stein as the collective-bargaining rep-
resentative of the laborers working at the AK Steel Middletown
location. He then wrote: “But to the extent it has not, I know my
voicemail from a few weeks ago indicated that Local 534 was
demanding recognition of the unit of laborers at the Middletown
site. To the extent my words were not express, please consider
this a demand for recognition of the unit of laborers at the Mid-
dletown site.” (Jt. Exh. 17).14 Hymore’s email addressed Local
534’s status and history as the exclusive collective-bargaining
representative of the laborers unit, stating:
More than 80% of the laborers hired by Stein were employed
under Local 534’s CBA with Tube City at the Middletown site,
and Local 534 was authorized to represent 100% of Tube
City’s laborers at the Middletown site. We did not locate a cer-
tification from the NLRB in our files. Notably, the laborers at
the Middletown site have been represented by Local 534 for
over 40 consecutive years. Over the last four decades, various
employers have operated at the Middletown site, and all have
bargained with Local 534 in connection with the laborers’ unit,
including but not limited to McGraw, IMS/International Mill
Service, OMS/Olympic Mill Service, and Tube City. This type
of work is not construction. These were not multi-employer ne-
gotiations, and a stand-alone agreement for the Middletown
site was always negotiated. New employees had 30 days to join
the union. It was never a pre-hire agreement.
“do more than one thing.” (Tr. 1255‒126). I do not find that appli-
cants—most of whom performed more than one task within their trade
when they worked for TMS—would reasonably interpret that statement
as advising them that they would be performing work outside their juris-
diction. Finally, I find it telling that job descriptions, cross-training, and
the assignment of cross-jurisdictional work were never mentioned during
the handout or speech Huffnagel gave on November 9, 2017. (Tr. 215‒
216) (Jt. Exh. 13). These meetings were held for the express purpose of
notifying TMS employees about changes Stein would be implementing
once it took over the slag/scrap work.
14 There was no additional evidence introduced regarding these prior
communications or messages.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Since we have represented Local 534 (about ten years), it has
always maintained authorization cards signed by 100% of the
employees in the unit. Local 534 always provided Tube City
with copies of the employees’ authorization cards (because,
conveniently, they also served as dues check off authoriza-
tions). So there was no dispute that Local 534 always was sup-
ported by 100% of the laborers at the Middletown site.
…
We are ready to bargain.
(Jt. Exh. 17).
Stein did not respond to Local 534’s demands for recognition
or its request for bargaining. That being said, Stein does not dis-
pute that it failed or refused to recognize and bargain with Local
543.
10. Alleged threats and assistance
Almost immediately after Stein commenced operations, its su-
pervisors and managers began informing drivers and laborers
that they needed to join IUOE Local 18. On January 3, Stein’s
supervisor Jason Westover was in the health and welfare office
at the AK Steel Middletown location, handing out IUOE Local
18 permit packets to employees. These “permit packets” in-
cluded Local 18 union authorization cards, an application for
membership in the International Union of Operating Engineers,
a dues deduction authorization form, group insurance benefi-
ciary designation form, a death benefit beneficiary designation
form, and authorization forms for political, educational, and/or
charitable funds. (G.C. Exh. 16). Westover told the employees
present that they needed to fill out the packets and turn them into
IUOE Local 18. (Tr. 258‒259).
On January 17, the International Union of Operating Engi-
neers District 4/5 Office sent Stein’s area manager Doug Huff-
nagel an email with a list of IUOE Local 18 members and/or per-
mit holders who were not in “good standing” based on their non-
payment of union dues and who could not work pursuant to the
union-security provision. There were four employees listed. All
of them were former TMS operators represented IUOE Local 18
who were hired by Stein and continued working. Huffnagel
agreed to hand the letters out to the employees at issue. (Tr. 221)
(G.C. Exhs. 13 and 14). There is no evidence as to what, if any,
further actions were taken.
In February, Local 18 business representative Justin Gabbard
came to the jobsite to pass out envelopes to employees. (Tr. 223).
Gabbard was not able to see every employee on his list, so he left
the remaining envelopes with Doug Huffnagel and asked him to
distribute them to the correct employees. (Tr. 224‒225). Huff-
nagel agreed to do so. Huffnagel also permitted Gabbard to
come back out to the jobsite another time to distribute additional
envelopes to employees. (Tr. 225).
In about February 2018, Troy Neace, a former TMS laborer
represented by Laborers Local 534 hired to work for Stein, was
present on the jobsite when Gabbard came about to distribute

15 The General Counsel has requested that I draw adverse inferences
based on the Stein’s failure to call Jason Westover and Jeff Porter, and
IUOE Local 18’s failure to call Justin Gabbard, as witnesses. I find
permit packets. Neace did not fill out the packet at that time.
Over the next couple months, Jason Westover gave Neace a per-
mit packet to complete. In April, Huffnagel called Neace into
his office and told him that he needed to complete one of the
IUOE permit packets because corporate wanted him to sign up
with IUOE. Following this conversation, Neace joined IUOE
Local 18. (Tr. 348).
In mid-February or early March 2018, Stein’s Site Superin-
tendent Jeff Porter told laborers and drivers present in the health
and welfare office at the AK Steel Middletown location that “if
you guys don’t get signed up with Local 18 Operating Engineers,
we’re going to have to take you off the schedule until you do.”
Oba Venters, a former TMS laborer represented by Laborers Lo-
cal 534 hired by Stein, was present and testified about Porter’s
statement. (Tr. 466‒467).15
11. Cross-training
As stated, when Doug Huffnagel began working at the AK
Steel Middletown jobsite in the fall 2017, he observed TMS’s
operations and the employees performing the work. In Huff-
nagel’s opinion, there were certain inefficiencies with how the
work was performed, specifically as it related to the strict adher-
ence to the work jurisdiction among the three bargaining units.
In order to reduce or eliminate these inefficiencies, Huffnagel’s
intention was to cross-train employees to perform tasks outside
their traditional job duties.
In the days, weeks, and months after Stein took over the
slag/scrap work, it began cross-training a few employees to per-
form certain tasks outside their traditional job duties, and had
those employees perform those tasks in addition to their tradi-
tional job duties. For example, Ova Venters is a former TMS la-
borer that Stein hired and later trained to perform certain tasks
outside his traditional laborer job duties, in addition to his tradi-
tional laborer duties. By January 3, Venters was trained and oc-
casionally operating a bobcat, and, by January 17, he was trained
and occasionally operating a backhoe, both are jobs previously
only performed by operators. By January 23, Venters was
trained to operate the water truck, and there were instances there-
after when he was assigned to perform that job, which is a job
previously only performed by drivers. In February, Venters con-
tinued to be assigned to operate the backhoe and the bobcat. He
also drove the pickup truck to go get parts, a job previously only
performed by drivers.
Tim Wilhoite is a former TMS laborer that Stein hired and
trained to perform certain tasks outside his traditional laborer job
duties, in addition to his traditional laborer duties. By January
9, Wilhoite was trained and occasionally operating the tele-
handler, a job previously only performed by operators. By mid-
February, Wilhoite was trained and occasionally running bob-
cats/skid steers. By February 27, Wilhoite was trained and oc-
casionally assigned to operate front-end loaders. Wilhoite also
began driving the pickup trucks to drive off site to get parts, a
job previously only performed by drivers.
adverse inferences are unnecessary because the credited testimony is un-
contradicted.
STEIN, INC. 17
Chris Michaels is a TMS laborer that Stein hired and cross-
trained to perform certain tasks outside his traditional laborer job
duties, in addition to his traditional laborer duties. By January
8, Michaels was trained and occasionally running a backhoe.
The following day, he was running skid steers. He continued to
perform these tasks throughout January. By February 11,
Michaels was trained and assigned to operate the telehandler. He
continued to operate the backhoes, skid steers, and the tele-
handler throughout February. All of these were jobs previously
only performed by operators.
Troy Neace is a TMS laborer that Stein hired and cross-trained
to perform certain tasks outside his traditional laborer job duties,
in addition to his traditional laborer duties. By late January,
Neace was trained and occasionally running backhoes. He also
was making off-site parts runs using one of the company pickup
trucks. As of February 8, Neace was trained and assigned to run
the processing plants. That eventually became his primary as-
signment.
Michael Young is a former TMS laborer that Stein hired. In
March, Stein began cross-training Young to perform certain
tasks outside his traditional laborer job duties, such as operating
bobcats and operating off-road dump trucks, in addition to his
traditional laborer duties. Michael Kingery is a former TMS op-
erator that Stein hired. In early March, Kingery was trained and
began operating the off-road dump trucks. He also performed
manual labor work, such as shoveling. He performed these tasks
in addition to his traditional operator duties.
12. Discharge of Ken Karoly
Ken Karoly worked for Stein as a knockout safety attendant at
the AK Steel Middletown location. Prior to that, he worked for
TMS performing the same job as a member of the Laborers Local
534 bargaining unit. (Tr. 399‒401; 405‒406). The primary re-
sponsibilities of knockout safety attendant are to cool down the
pits where the loaders and large off-road dump trucks drive so
that they do not catch on fire, and to monitor or spot the person-
nel and equipment involved in the digging, loading, and trans-
porting of the slag. Karoly communicated with the operators and
drivers using a two-way radio. In late January, at the request of
AK Steel, knockout safety attendants were assigned a shared cel-
lular phone to use during their shift. (Tr. 1217‒1218; Stein Exh.
10).
In March, Karoly accidently ran over the cell phone, damag-
ing it. (Tr. 411‒413, 1219). He reported the incident and he doc-
umented it in his paperwork. Karoly met separately with Jason
Westover and Doug Huffnagel about damaging the phone. Ka-
roly was not issued any discipline for the incident. (Tr. 413).
On March 19, an AK Steel manager complained to Huffnagel
that there were reports that crew members were not able to com-
municate with the knockout safety attendant for periods of time
during the day. (Tr. 1220, 1225; Stein Exh. 32). It turned out
that the attendant was Karoly, and it was because he had
switched the two-way radio to the wrong communication

16 The section of the document explaining the reason for the em-
ployer’s decision concluded with a sentence, “On 4/17 to 4/18 Mr. Ka-
roly did not answer AK BF Foreman. The BF Foreman had to contact
Stein S [the rest of the sentence is cut off].” (G.C. Exh. 17). Karoly
testified that final sentence was not on the document when it was
channel. (Tr. 1222‒1225). Later, AK Steel’s blast furnace fore-
man called Huffnagel very irate about not being able to reach
Karoly. Stein ended up altering its scheduling to make sure that
there would be an attendant stationed at the furnace worksite at
all times, which resulted in increased costs for Stein.
On March 31, Bill Fletcher, an operator, damaged a portion of
the loader he was running. As the attendant on duty, Karoly was
responsible for spotting risks and communicating them to the op-
erator. (Tr. 414‒415; 442‒443; 1227‒1228) (Stein Exh. 11).
Huffnagel met with both employees about the incident. Fletcher
was disciplined, but Karoly was not. (Tr. 415‒416).
On April 18, Huffnagel informed Karoly that he was being
discharged, and he provided Karoly with a document referencing
these prior incidents. (G.C. Exh. 17).16 Huffnagel stated that
Respondent could terminate Karoly because he had not yet com-
pleted his probationary period. Section 17.05 of Respondents’
agreement defines the probationary period as 90 days of actual
work. (Jt. Exh. 16, p. 15). This was a change from the Laborers
Local 534 collective-bargaining agreement, which defined the
probationary period as 60 days. (Jt. Exh. 6, pg. 12).
There is no dispute Stein never informed or offered to bargain
with Local 534 over its discharge decision.
IV. CONTENTIONS OF THE PARTIES
The primary issues are whether Stein is a lawful successor to
TMS, and, if so, whether it had the right to unilaterally set initial
terms and conditions of employment for the employees in the
laborers unit. General Counsel alleges Stein is the successor to
TMS, and that it violated Section 8(a)(1), (2), (3) and (5) of the
Act by failing and refusing to recognize and bargain with Labor-
ers Local 534 as the exclusive bargaining representative of the
laborers unit; by failing to apply and unilaterally changing the
terms and conditions of employment applicable to the laborers
unit; by unlawfully recognizing and entering into, maintaining,
and enforcing a collective-bargaining agreement with IUOE Lo-
cal 18 as the representative of the laborers unit when Local 18
did not enjoy support from a majority of the employees in that
unit; by maintaining and enforcing the union-security and dues-
checkoff provisions in that agreement; by conditioning contin-
ued employment upon employees joining and paying dues and
fees to IUOE Local 18; and by rendering unlawful assistance and
support when Local 18 did not enjoy unassisted and uncoerced
support among a majority of the employees in the laborers unit.
For its role in the above-cited unlawful conduct, the General
Counsel also alleges that IUOE Local 18 violated Section
8(b)(1)(A) and (b)(2) of the Act.
Respondents contend Stein is not a successor to TMS and had
no obligation to recognize and bargain with Laborers Local 534.
They further argue that IUOE Local 18 was lawfully recognized
as the representative of the merged unit based on cards showing
majority support, and Respondents lawfully entered into,
presented to him. Huffnagel testified (after Karoly) about the document.
He did not explain what the reference to 4/17 or 4/18 meant, or whether
it was on the document when it was presented to Karoly. The record,
therefore, is unclear as to what, if anything, occurred on those dates that
lead Stein to terminate Karoly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
maintained, and enforced a collective-bargaining agreement
covering that unit of employees.
V. LEGAL ANALYSIS
A. Stein is a Successor to TMS and, Therefore, Obligated to
Recognize and Bargain with Laborers Local 534 as the Exclu-
sive Collective-Bargaining Representative of the Laborers Unit.
1. Legal precedent
Under NLRB v. Burns Security Services, 406 U.S. 272, 281-
295 (1972),17 the union’s majority status is presumed to con-
tinue, and the successor is obligated to bargain with the union(s)
representing the predecessor’s employees, when: (1) there is sub-
stantial continuity between the two enterprises, (2) the successor
hired as a majority of its employees the predecessor’s employ-
ees, and (3) the bargaining unit that existed remains appropriate.
See also Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S.
27, 43-54 (1987); and Ports America Outer Harbor, 366 NLRB
No. 76, slip op. at 2 (2018).
In Fall River Dyeing, the Supreme Court held the presumption
of majority support is particularly pertinent in the successorship
situation because:
During a transition between employers, a union is in a peculi-
arly vulnerable position. It has no formal and established bar-
gaining relationship with the new employer, is uncertain about
the new employer’s plans, and cannot be sure if or when the
new employer must bargain with it. While being concerned
with the future of its members with the new employer, the un-
ion also must protect whatever rights still exist for its members
under the collective-bargaining agreement with the predeces-
sor employer. Accordingly, during this unsettling transition pe-
riod, the union needs the presumptions of majority status to
which it is entitled to safeguard its members’ rights and to de-
velop a relationship with the successor.
The position of the employees also supports the application of
the presumptions in the successorship situation. If the employ-
ees find themselves in a new enterprise that substantially re-
sembles the old, but without their chosen bargaining repre-
sentative, they may well feel that their choice of a union is sub-
ject to the vagaries of an enterprise’s transformation. This feel-
ing is not conducive to industrial peace. In addition, after being
hired by a new company following a layoff from the old, em-
ployees initially will be concerned primarily with maintaining
their new jobs. In fact, they might be inclined to shun support
for their former union, especially if they believe that such sup-
port will jeopardize their jobs with the successor or if they are
inclined to blame the union for their layoff and problems

17 In Burns, the William T. Burns International Detective Agency re-
placed Wackenhut Corporation as the security contractor for Lockhead
at one of its plants. Burns hired 27 Wackenhut employees in June, and,
in offering them employment, explained that it could not live with the
existing contract between Wackenhut and the United Plant Guard Work-
ers (UPGW), which represented the guards. Burns transferred 15 of its
own guards from other locations. Burns commenced operations on July
1. Prior to commencing operations, Burns recognized the American Fed-
eral of Guards (AFG) as the union representing the employees at the
associated with it. Without the presumptions of majority sup-
port and with the wide variety of corporate transformations
possible, an employer could use a successor enterprise as a way
of getting rid of a labor contract and of exploiting the employ-
ees’ hesitant attitude towards the union to eliminate its contin-
uing presence.
Id. at 41 (footnote omitted).
The Court also emphasized that the successorship doctrine
“safeguard[s] the rightful prerogative of owners independently
to rearrange their businesses.” Fall River Dyeing, 482 U.S. at 40
(internal quotations omitted). The successor is “under no obli-
gation to hire the employees of its predecessor, subject, of
course, to the restriction that it not discriminate against union
employees in hiring.” Id. Thus, the applicability of the succes-
sorship doctrine rests in the hands of the new employer: if the
new employer makes a conscious decision to maintain generally
the same business and take advantage of the trained workforce
of its predecessor by hiring a majority of them, then it has an
obligation to recognize and bargain with their representative. Id.
at 40‒41.
a. Substantial continuity
The first inquiry is whether there is a “substantial continuity”
between Stein and TMS in the performance of the slag/scrap
work at the AK Steel Middletown location. Fall River Dyeing,
482 U.S. at 43. This is based upon the totality of the circum-
stances and requires the Board focus on whether the new entity
has taken over substantial assets of the predecessor and “contin-
ued, without interruption or substantial change, the predecessor’s
business operations.” Id., quoting Golden State Bottling Co. v.
NLRB, 414 U.S. 168, 184 (1973). The Supreme Court has iden-
tified the following factors as relevant to the analysis: (1)
whether the business of both employers is essentially the same;
(2) whether the employees of the new company are doing the
same jobs in the same working conditions under the same super-
visors; and (3) whether the new entity has the same production
process, produces the same products, and basically has the same
body of customers. Fall River Dyeing, supra at 43. Most im-
portantly, these factors are to be analyzed from the perspective
of the employees who worked for the predecessor, i.e., whether
they “understandably view their job situations as essentially un-
altered.” Id. (quoting Golden State Bottling Co., supra at 184).
In applying these factors, I find there is substantial continuity
exists between Stein and TMS. The two are competitors, both
engaged in the business of slag/scrap work at locations through-
out the country. Stein replaced TMS as the contractor and im-
mediately began performing the same work, producing the same
product, for the same customers, at the same location.
Lockhead facility. AFG was a union with which Burns had contracts at
other locations. On July 12, UPGW demanded that Burns recognize the
union as the exclusive representative of Burns’ employees at Lockheed
and honor the contract UPGW had negotiated with Wackenhut. Burns
refused. In applying the above factors, the Supreme Court held that
Burns was a successor to Wackenhut and obligated to recognize and bar-
gain with UPGW, but it was not obligated to honor its contract with
Wackenhut.
STEIN, INC. 19
Furthermore, Stein acquired all of TMS’s property and assets
(except for the computer equipment) used to perform the
slag/scrap work. And there was no hiatus in operations: a ma-
jority of the employees ended their employment with TMS on
December 31, 2017, and began their employment with Stein on
January 1. Although Stein changed the work schedules, pur-
chased additional equipment, hired several new supervisors, and
later began cross-training certain employees to perform new and
different duties (discussed below), each of the employees who
testified confirmed that, from their perspective, they continued
performing the same work in substantially the same manner as
performed prior to January 1, just for a different employer. See
Empire Janitorial Sales & Services, LLC, 364 NLRB No. 138
(2016) (finding substantial continuity even though successor
hired new supervisors and maintenance employees and provided
different uniforms to wear and cleaning products to use, because
the employees continued performing the same work with no hi-
atus); A. J. Myers & Sons, Inc., 362 NLRB No. 51, slip op. at 7
(2015) (differences in equipment, location, and supervision did
not defeat finding of continuity of operations); Van Lear Equip-
ment, Inc., 336 NLRB 1059, 1063‒1064 (2001) (finding substan-
tial continuity where employees continued to perform essentially
the same work even though successor provided different super-
vision, different pay rates and benefits, and newer equipment);
and M.S. Management Associates, Inc., 325 NLRB 1154, 1155
(1998) (finding substantial continuity where the successor pro-
vided the same services to the same set of customers and with
the same equipment, with no hiatus in operations, even though
the successor used a different supervisory staff), enfd. 241 F.3d
207 (2d Cir. 2001). See also Banknote Corp. of America v.
NLRB, 84 F.3d 637 (2d Cir. 1996), enfg. 315 NLRB 1041 (1994),
cert. denied, 519 U.S. 1009 (1996) (even though successor pur-
chased a significant amount of new equipment, the type of equip-
ment purchased was similar to the equipment upon which the
predecessors’ employees worked). Based on the totality of the
circumstances, I find the drivers and laborers would understand-
ably view their job situations as essentially unaltered.
b. Hired a majority of predecessor’s employees
The second inquiry is whether Stein hired as majority of its
workforce former TMS employees. As a general rule, the rele-
vant measuring day to determine if the successor employed a ma-
jority of the predecessor’s employees is the initial date the suc-
cessor began operating. See Vermont Foundry Corp., 292 NLRB
1003, 1009 (1989). That was the situation in Burns, where, as
here, the successor began operating the day after the predecessor

18 In Fall River Dyeing, the Court explained, the “[substantial and rep-
resentative complement] rule represents an effort to balance the objective
of insuring maximum employee participation in the selection of a bar-
gaining agent against the goal of permitting employees to be represented
as quickly as possible.... The latter interest is especially heightened in a
situation where many of the successor’s employees, who were formerly
represented by a union, find themselves after the employer transition in
essentially the same enterprise, but without their bargaining representa-
tive.” 482 U.S. at 48‒49 (internal quotation marks omitted). That is pre-
cisely the situation here.
19 The Board has recognized circumstances where a union’s request
to bargain would be futile, such as when the notice by an employer is too
ceased operations with a majority of its employees drawn from
the predecessor’s workforce. 406 U.S. at 272. In Fall River Dye-
ing, the successor took over and began operations after a hiatus
that lasted several months. The new employer started up opera-
tions and hired employees gradually over time. Explicitly con-
trasting the situation to that in Burns, the Court in Fall River
Dyeing pointed out that:
[i]n other situations, as in the present case, there is a start-up
period by the new employer while it gradually builds its oper-
ations and hires employees. In these situations, the Board, with
the approval of the Courts of Appeals, has adopted the “sub-
stantial and representative complement” rule for fixing the mo-
ment when the determination as to the composition of the suc-
cessor’s work force is to be made. If, at this particular moment,
a majority of the successor’s employees had been employed by
its predecessor, then the successor has an obligation to bargain
with the union that represented these employees.
482 U.S. at 47 (footnotes omitted).
In Fall River Dyeing, the Court approved as reasonable the
Board’s substantial and representative complement rule, which
evaluates the successor’s bargaining obligation when a substan-
tial and representative complement of employees is hired.18 A
substantial and representative complement of employees will be
found to exist at the point at which an employer’s job classifica-
tions are substantially filled, its operations are in substantially
normal production, and it does not reasonably expect to increase
the number of unit employees. Fall River Dyeing, 482 U.S. at 49.
Without distinguishing the extended start-up situation in Fall
River Dyeing from the more seamless transfer of operations in
Burns, many Board cases since Fall River Dyeing have applied
the substantial and representative complement formula gener-
ally, with the requirement that a bargaining demand is necessary
to trigger the successor’s duty to bargain. See e.g., Ports Amer-
ica Outer Harbor, supra slip op. at 2; Jamestown Fabricated
Steel and Supply, Inc., 362 NLRB No. 161 (2015); A.J. Myers &
Sons, Inc., supra; and Hampton Lumber Mills-Washington, 334
NLRB 195 (2001), enfd. 38 Fed. Appx. 27 (D.C. Cir. 2002). It
is well-settled that a valid demand for recognition or bargaining
“need not be made in any particular form ... so long as the request
clearly indicates a desire to negotiate and bargain” on behalf of
the unit employees. Cadillac Asphalt Paving Co., 349 NLRB 6,
10 (2007) (quoting Marysville Travelodge, 233 NLRB 527, 532
(1977)). See also Paramus Ford, 351 NLRB 1019, 1026‒1027
(2007); and MSK Corp., 341 NLRB 43, 45 (2004).19
short before the actual implementation for meaningful bargaining, or
when the employer has no intention of changing its mind. In those in-
stances, the notice, if any, is of a fait accompli, and the union will not
have waived its rights by failing to timely request bargaining. See gen-
erally, General Die Casters, Inc., 359 NLRB 89, 105 (2012); Pontiac
Osteopathic Hospital, 336 NLRB 1021, 1023‒1024 (2001); and Ciba-
Ceigy Pharmaceutical Division, 264 NLRB 1013, 1017 (1982), enfd.
722 F.2d 1120 (3d Cir. 1983). Based on the evidence, I find that well
before January 1, Stein had a fixed intent to merge the units, recognize
IUOE Local 18 as the representative of that merged unit, and maintain
and enforce the terms of Respondents’ collective-bargaining agreement
on all employees, regardless of their chosen bargaining representative.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
As stated, the parties stipulated that on January 1 and/or by
January 6, Stein had hired and employed a “substantial and rep-
resentative complement” of employees to perform the slag/scrap
work at AK Steel’s Middletown location, and the evidence es-
tablishes that a majority of those employees previously worked
for TMS. In fact, it was by January 2 that Stein had hired and
employed as a majority of its workforce a majority of the former
TMS employees from each of the three bargaining units. At
some point in early February, Laborers Local 534’s attorney left
a voicemail message with Stein’s attorney demanding that Stein
recognize Local 534 as the exclusive representative of the labor-
ers unit. In February, Local 534 orally demanded recognition,
and on February 20, sent a written demand for recognition and
request for bargaining. As a result, I find that by at least Febru-
ary 20, Stein had an obligation to recognize and bargain with
Local 534 as the exclusive representative of the laborers unit.
c. Appropriateness of unit
The third inquiry is whether the bargaining unit of the prede-
cessor remains appropriate for the successor. See Banknote
Corp. of America, 315 NLRB 1041, 1043 (1994), enfd. 84 F.3d
637 (2d Cir. 1996), cert. denied 519 U.S. 1109 (1997); and Para-
mus Ford, Inc., 351 NLRB at 1023. In Burns, supra, the Su-
preme Court found that the successor employer (Burns) was ob-
ligated to bargain with the union that represented the employees
of the predecessor (Wackenhut), but it observed that: “It would
be a wholly different case if the Board had determined that be-
cause Burns’ operational structures and practices differed from
those of Wackenhut, the Lockheed bargaining unit was no longer
an appropriate one.” 406 U.S. at 280. The Board’s longstanding
policy is that a “mere change in ownership should not uproot
bargaining units that have enjoyed a history of collective bar-
gaining unless the units no longer conform reasonably well to
other standards of appropriateness.” Cadillac Asphalt Paving
Co., 349 NLRB 6, 9 (2007); and Indianapolis Mack Sales & Ser-
vice, 288 NLRB 1123, 1126 (1988) (historical unit likely appro-
priate if the predecessor employer recognized it, even if the unit
would not be appropriate under Board standards if it were being
organized for the first time). A party challenging a historical unit
bears the heavy burden of showing that the unit is no longer ap-
propriate. Id. In Trident Seafoods, Inc. v. NLRB, 101 F.3d 111
(D.C. Cir. 1996) enfg 318 NLRB 738 (1995), the Court held:
[A] successor employer can meet this burden by showing that
a historical unit is “repugnant to Board policy[;] “that “compel-
ling circumstances” are present that “overcome the signifi-
cance of bargaining history[;]” that the unit is “so constituted
as to hamper employees in fully exercising rights guaranteed
by the Act[;]” or that the historical units no longer “‘conform
reasonably well to other standards of appropriateness.’”

It, therefore, would have been futile for Laborers Local 534 to demand
recognition/request bargaining, because Stein’s recognition of IUOE Lo-
cal 18, and the implementation of the changes to the terms and conditions
of employment, were a fait accompli.
20 At the hearing, I allowed Respondents to introduce evidence related
to this cross-training and cross-jurisdictional assignment of work through
March, but not beyond. I rejected proffered exhibits after that date as
Id. at 118 (internal citations omitted). See also Deferiet Paper
Co. v. NLRB, 235 F.3d 581, 584 (D.C Cir. 2000) (an alleged suc-
cessor may demonstrate that a preexisting unit is no longer ap-
propriate by showing significant revisions in plant operations
and employee duties).
The continued appropriateness of the historical unit is meas-
ured at the time the bargaining obligation attaches. Cadillac As-
phalt Paving Co., 349 NLRB at 9.
Respondents argue as result of the cross-training and assign-
ment of cross-jurisdictional work, the three separate units are no
longer appropriate because they have been functionally inte-
grated into one merged unit. In Banknote Corp. of America, su-
pra, the Board considered the possible accretion of existing units
into a larger single unit in the successorship context as a result
of cross-training. In that case, after the successor acquired the
facility, it met with the unions to advise them it intended to have
a more flexible operation with respect to the jobs that employees
would perform, and that it would cross-train employees so that
they would be able to perform various functions. It also in-
formed job applicants during their interviews that they would be
asked to perform additional tasks outside their normal job duties.
Thereafter, the successor cross-trained and assigned certain em-
ployees to perform sporadic and occasional duties across unit
lines. The Board found the evidence was largely conclusory, and
while certain of the successor’s employees were assigned to fill
in on a wider scope of new duties, they continued to serve as the
primary, if not sole, employees performing their traditional du-
ties. The Board ultimately held the successor failed to establish
that the historical units were no longer appropriate, particularly
where many of the changes in job duties occurred after the bar-
gaining obligation attached.
The result is the same here. First of all, as explained below,
the cross-training and assignment of cross-jurisdictional work is
the direct result of Stein’s unlawful unilateral changes to the con-
tractual provisions addressing the definition and assignment of
work, conditions of work, and job classifications. See Dodge of
Naperville, 357 NLRB 2252, 2253‒2254 (2012) (“In determin-
ing whether an established bargaining unit retains its distinct
identity, we do not consider the effects of the Respondent’s un-
lawful, unilateral changes to the existing unit employees’ terms
and conditions of employment, as giving weight to such changes
would reward the employer for its unlawful conduct.”) (and
cases cited therein).
Second, even if the cross-jurisdictional assignments had not
been the direct result of Stein’s unlawful unilateral changes,
these assignments were not so regular and widespread as to alter
the appropriateness of the three historical units. Only five labor-
ers and one operator (Venters, Young, Wilhoite, Michaels,
Neace, and Kingery) were cross-trained and performing some
cross-jurisdictional work before the end of March.20 Two of the
being irrelevant because they post-dated the demands for recognition/re-
quests for bargaining. But I allowed Respondent to question witnesses
about their duties during the months that followed, in the event I changed
my ruling regarding the exhibits. In its post-hearing brief, Stein requests
that I reverse my rulings and consider the evidence after March. I decline
to do so and maintain my earlier rulings that the evidence is irrelevant.
As stated, Respondents must prove that as of the date the demand for
STEIN, INC. 21
six did not begin performing cross-jurisdictional work until
March, well after the bargaining obligation attached. The re-
maining four employees—all laborers—performed limited
cross-jurisdictional work through February, while continuing to
perform their primary laborer duties. In other words, only 4 out
of the 60 employees Stein hired were cross-trained and perform-
ing cross-jurisdictional work as of the date Stein’s bargaining
obligation to Laborers Local 534 attached. Moreover, based on
the evidence, these employees continued to spend a majority of
their work time performing their traditional job duties, at least
through February. Consequently, I find that as of the date Stein’s
bargaining obligation triggered, which was at the latest February
20, Respondent failed to present compelling circumstances that
the laborers unit was no longer appropriate, or that the unit was
repugnant to Board policy or hampered employees’ exercise of
their rights guaranteed by the Act.
Respondents cite to Border Steel Rolling Mills, Inc., 204
NLRB 814, 821 (1973), for support of its contrary position. In
that case, the employer acquired a truck repair/maintenance busi-
ness and hired its employees who were represented by the Team-
sters. The employer already had employees who performed re-
pair/maintenance work on certain mobile equipment (e.g., fork-
lifts and cranes), but not trucks. Those employees were part of a
plant-wide unit represented by the Steelworkers. Following the
acquisition, the employer created a new department to handle all
mobile maintenance, including equipment and trucks, and it im-
plemented other operational and physical changes. Thereafter,
it merged the truck repair/maintenance employees from the ac-
quired business into the plant-wide Steelworkers unit. The
Board held the merger was lawful, because the employees in the
Teamsters unit had become functionally integrated as result of
these changes that it no longer maintained a separate identity.
Border Steel is distinguishable from this case. It involved the
addition of a new classification of employees who performed
truck maintenance and repair to an existing facility-wide unit fol-
lowing a sale. The laborers, operators, and drivers have existed
at the AK Steel Middletown location for decades, where they
have maintained their own separate identities and collective-bar-
gaining agreements. In Border Steel, the employer made several
operational and physical changes, in addition to creating a new
department. Here, the only change is that a few of the employees
received cross-training and were assigned occasional cross-juris-
dictional work, in addition to continuing to perform their tradi-
tional duties. I find, unlike the widespread changes that oc-
curred in Border Steel, the limited (and, as discussed below, un-
lawful) changes here did not result in the three units becoming
so functionally integrated that they no longer maintained their
separate identities.
In light of the evidence, I find that since January 1, Stein re-
placed TMS as the contractor performing the slag/scrap work at

recognition/request for bargaining there were compelling circumstances
that made the historical units no longer appropriate. See Cadillac As-
phalt Paving Co., 349 NLRB 9; and Banknote Corp. of America, 315
NLRB at 104. See also Ford Motor Co., 367 NLRB No. 8, slip op. at 12
(2018) (“The point of the successorship doctrine is that employees’ rep-
resentational rights do not get put on hold--much less substituted with a
union of [the employer’s] choice—while [the employer] spends months
AK Steel’s Middletown location and has continued to perform
that work in substantially unchanged form, employing as a ma-
jority of its employees former TMS employees, including a ma-
jority of the TMS laborers unit. Stein, therefore, is TMS’s suc-
cessor and inherits its recognitional and bargaining obligations
toward Laborers Local 534.
2. Respondents’ 9(a) and 8(f) defenses
Respondents contend that even if Stein is a successor to TMS,
it had no obligation to bargain with Laborers Local 534 because
there is no evidence of a Board election/certification or a volun-
tary recognition based on evidence of majority support, estab-
lishing Laborers Local 534 as the Section 9(a) representative of
the laborers unit. The record contains the 2010‒2013 agreement
between Local 534 and Tube City LLC and the 2013‒2016
agreement between Local 534 and Tube City IMS, LLC, as well
as the 2016 and 2017 extensions of the 2013‒2016 agreement.
These documents recognize Laborers Local 534 as the sole and
exclusive bargaining agent of the laborers unit. In Barrington
Plaza & Tragniew, Inc., 185 NLRB 962 (1970), enfd. in part 470
F.2d 669 (9th Cir. 1972), the Board held that in a refusal-to-bar-
gain case involving a previously recognized union, the requisite
proof of majority status need not take the form of a Board certi-
fication or card showing:
The existence of a prior contract, lawful on its face, raises a
dual presumption of majority—a presumption that the union
was the majority representative at the time the contract was ex-
ecuted, and a presumption that its majority continued at least
through the life of the contract.
Following expiration of the contract, this presumption contin-
ues and is not dependent on independent evidence that the bar-
gaining relationship was originally established by a certifica-
tion or majority card showing. The presumption applies not
only to a situation where the employer charged with a refusal
to bargain is itself a party to the preexisting contract, but also
to a successorship situation such as we have here. The burden
of rebutting this presumption rests, of course, on the party who
would do so. It is true that a labor organization’s continuing
majority may not be questioned during the term of a contract.
On the other hand, upon expiration thereof, the presumption of
majority arising from a history of collective bargaining may be
overcome by “clear and convincing proof” that the union did
not in fact enjoy majority support at the time of the refusal to
bargain. At such time, it is also a valid defense for the employer
to “demonstrate by objective considerations that it has some
reasonable grounds for believing that the union has lost its ma-
jority status....”
Id. at 963 (internal footnotes omitted).21
training additional employees…). The rejected exhibits—which all post-
date Laborers Local 534’s demand for recognition/bargaining—are irrel-
evant, as is the testimony regarding cross-training and assignment of
work after March. That evidence is hereby stricken.
21 Respondents contend that IUOE Local 18 presented evidence of
majority support of among the employees performing the slag/scrap
work when Local 18 presented Stein with signed authorization cards
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Furthermore, assuming there was some defect in the recogni-
tion established by these prior agreements, the Board has held
that a successor may not attack a union’s initial recognition by
the predecessor when that recognition was beyond the Section
10(b) 6-month limitations period. Eye Weather, 325 NLRB 973
(1998), citing Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB,
362 U.S. 411 (1960) (respondent may not defend against a re-
fusal-to-bargain allegation on the grounds that the original
recognition, occurring more than 6 months before charges were
filed in the proceeding raising the issue, was unlawful.). See also
Red Coats Inc., 328 NLRB 205, 206–207 (1999) (employer may
not defend against a refusal-to-bargain allegation on the basis
that the original recognition of the union was unlawful, where
that recognition occurred more than 6 months before the charges
raising the issue had been filed); Sewell-Allen Big Star, 294
NLRB 312, 313‒314 (1989) (same). As stated, Local 534 has
been recognized as the exclusive bargaining representative of the
laborers unit since at least 2010, and there is no evidence of any
timely challenge to that status.
Citing to Davenport Insulation, 184 NLRB 908 (1970), Re-
spondents argue that Local 534’s relationships with these prede-
cessor contractors were all under Section 8(f) of the Act; there-
fore, Stein had no obligation to recognize or bargain after the
most-recent contract extension expired on December 31, 2017.
The Board has held that when the parties’ bargaining relationship
is governed by Section 8(f), either party is free to repudiate the
relationship and decline to negotiate or adopt a successor agree-
ment once the contract expires. Oklahoma Fixture Co., 333
NLRB 804, 807 (2001), enf. denied, 74 Fed. Appx. 31 (10th Cir.
2003); John Deklewa & Sons, 282 NLRB 1375, 1389 (1987),
enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3rd
Cir. 1988), cert. denied 488 U.S. 889 (1988). However, the plain
reading of Section 8(f) of the Act reveals that it is only applicable
to “an employer engaged primarily in the building and construc-
tion industry to make an agreement covering employees engaged
(or who, upon their employment, will be engaged) in the building
and construction industry with a labor organization of which
building and construction employees are members….” See
Techno Construction Corp., 333 NLRB 75, 83‒84 (2001). The
burden of proof lies with the party seeking to avail itself with the
Section 8(f) statutory exception. Bell Energy Management
Corp., 291 NLRB 168, 169 (1988); and Hudson River Aggre-
gates, Inc., 246 NLRB 192, 199 (1979), enfd. 639 F.2d 865 (2d
Cir. 1981)).

designating Local 18 as their bargaining representative. (Local 18 Exh.
3). These cards, which all pre-date October 2017, were gathered from
employees who were members of Local 18 prior January 1. None of the
cards were signed by individuals from the drivers unit or the laborers
unit. Therefore, since none of those employees designated Local 18 to be
their bargaining representative, there is no evidence of loss a majority
support.
22 Even though the processed slag is often used as an aggregate for
road construction, the Board has held that suppliers of construction ma-
terials are, without more, not engaged primarily in the building and con-
struction industry. See Irving Ready-Mix, Inc., 357 NLRB 1272 (2011)
(a ready-mix cement supplier is not a construction employer within the
meaning of Sec. 8(f) of the Act).
However, the parties stipulated that this slag/scrap work, as it
has been performed by Stein, TMS, and the predecessor contrac-
tors at the AK Steel Middletown location, is not, and has never
been, building and construction industry work. (Jt. Exh. 1). Set-
ting that aside, the Board has held that “the so-called building
and construction concept subsumes the provision of labor
whereby materials and constituent parts may be combined on the
building site to form, make, or build a structure.” Teamsters Lo-
cal 83, 243 NLRB 328, 331, (1979) (quoting Carpet, Linoleum
& Soft Tile Local No. 1247, 156 NLRB 951, 959 (1966)). Re-
spondents failed to present any evidence that the employees per-
forming the slag/scrap work for Stein, TMS, or any of the prede-
cessor contractors are or were engaged in this sort of activity.22
Respondents largely ignore their evidentiary burden and, in-
stead, focus on contractual language to support their argu-
ments.23 They argue that the Laborers Local 534 agreement con-
tains a hiring hall procedure that would be illegal under Section
9(a); therefore, the parties must have intended for their agree-
ment to be covered under Section 8(f). First, and foremost, intent
is irrelevant if the employer and employees at issue are not en-
gaged primarily in the building and construction industry. Sec-
ond, the Board has consistently rejected arguments to invalidate
an agreement or collective-bargaining relationship because of an
unlawful contractual provision. In Teamsters Local 83, supra at
333, the Board found certain employers were not engaged pri-
marily in the building and construction industry, and therefore
certain hiring hall provisions in their collective-bargaining
agreements were not protected by Section 8(f)(4) of the Act. In
doing so, the Board did not strike down the agreements, but
merely found the maintenance, enforcement, and giving effect to
the hiring hall provisions violated the Act. In Flying Dutchman
Park, Inc., 329 NLRB 414, 416 (1999), the Board held that while
a union-security provision was unlawful because it did not pro-
vide newly hired employees the legally established grace period
in which to become union members, such a provision does not
render the entire contract unenforceable. In Royal Components,
Inc., 317 NLRB 971, 972-73 (1995), the Board held an employer
was not engaged in the building and construction industry simply
because it entered into a collective-bargaining agreement with a
7-day membership grace period, which is allowed in the con-
struction industry, but not for employers outside that industry.
The Board found the maintenance of the union-security provi-
sion to be unlawful, but refused to entertain the respondent’s
contention that the union lacked majority status at the time the
contract was executed since the asserted lack of majority status
23 Stein argues that one of TMS’s predecessors, McGraw Construction
Company, was engaged in the building and construction industry, be-
cause the name of the company contains the word “construction,” and
there is 1961 Board decision in which the company was, for jurisdic-
tional purposes, found to have been engaged primarily in the building
and construction industry when it performed a major renovation project
at the now-AK Steel Middletown location. (Stein. Br. 41‒42). Suffice
it to say, this evidence from over 50 years ago about a contractor on an
unrelated project falls well short of meeting the burden of establishing
that Stein, TMS, or any of the other predecessor contractors were en-
gaged primarily in the building and construction industry while perform-
ing the slag/scrap work at AK Steel’s Middletown location.
STEIN, INC. 23
was not challenged within the 6-month period from the time the
contract was executed. See also Raymond F. Kravis Center for
Performing Arts, Inc. v. NLRB, 550 F.3d 1183 (D.C. Cir. 2008)
(holding that stagehands working at a concert hall were not em-
ployed in the “construction industry” even though they were
hired through a hiring hall arrangement).
As such, I find Laborers Local 534 is, and has been, the Sec-
tion 9(a) representative of the laborers unit.
3. Conclusion
As the lawful successor to TMS, Stein was obligated to rec-
ognize and bargain with Laborers Local 534 as the Section 9(a)
bargaining representative of the laborers unit. By their conduct,
I find Stein violated Section 8(a)(5), (3), (2), and (1) of the Act,
and IUOE Local 18 violated Section 8(b)(1)(A) and (b)(2) of the
Act, as alleged in the amended consolidated complaint. See gen-
erally, Ports America Outer Harbor, supra; Regency Grande
Nursing & Rehab. Ctr. & SEIU 1199 New Jersey Health Care
Union & Local 300s, Prod. Serv. & Sales Dist. Council, a/w
United Food & Commercial Workers Int’l Union, 347 NLRB
1143 (2006); Polyclinic Medical Center of Harrisburg, 315
NLRB 1257 (1995); and Rockville Nursing Center, 193 NLRB
959, 965 (1971). Stein violated Section 8(a)(5) and (1) since at
least February 20, when it refused Local 534’s demand for recog-
nition/request for bargaining. Stein also violated Section 8(a)(2)
and (1) since about October 12, 2017, when it recognized IUOE
Local 18 as the exclusive bargaining representative of the em-
ployees in the laborers unit, and since December 22, 2017, when
it entered into, and since January 1, when it began maintaining
and enforcing a collective-bargaining agreement with Local 18,
even though Local 18 did not represent an uncoerced or unas-
sisted majority of the employees in that unit. The agreement sets
forth the terms and conditions of employment applicable to the
employees in the laborers unit, including union-security and
dues-check off provisions. By maintaining and enforcing these
provisions, Stein violated Section 8(a)(3) and (1) of the Act be-
cause it unlawfully encouraged employees in the laborers unit to
join and pay dues to Local 18 at a time when Local 18 was not
lawfully recognized a bargaining representative of those employ-
ees. Similarly, I find that IUOE Local 18 violated Section
8(b)(1)(A) and (2) of the Act by accepting recognition from Stein
as bargaining representative of the employees in the laborers
unit, by entering into, maintaining, and enforcing the terms of

24 Under Burns, supra, a successor employer is permitted to set initial
terms only to the extent encompassed by Sec. 8(d) of the Act. That does
not include the right to change the scope or composition of the bargaining
unit. SFX Target Center Arena Management, LLC, 342 NLRB 725, 735
(2004). Parties, therefore, cannot be compelled to bargain to impasse
over such changes. See Bozzuto’s, Inc., 277 NLRB 977 (1985) and
Newspaper Printing Corp. v. NLRB, 625 F.2d 956, 964‒965 (10th Cir.
1980), cert. denied 450 U.S. 911 (1981). If they were, an employer could
“use its bargaining power to restrict (or extend) the scope of union rep-
resentation in derogation of employees’ guaranteed right to representa-
tives of their own choice.” Idaho Statesman v. NLRB, 836 F.2d 1396
(D.C. Cir. 1988). In SFX Target Center, supra at 735, the Board adopted
the judge’s finding that:
To the contrary, the Court has held explicitly that preservation of work
traditionally performed is “[a]mong the primary purposes protected by
the Act.” [NLRB v. International Longshoremen’s Ass’n,] 447 U.S. 490,
Respondents’ collective-bargaining agreement, and by receiving
dues and fees from the employees in the laborers unit, at a time
when it did not lawfully represent those employees.
B. Stein Forfeited Its Right as a Successor to Set the Initial
Terms and Conditions of Employment Applicable to the Labor-
ers Unit.
In Burns, supra, the Supreme Court held that a successor is not
bound by the substantive terms of a collective-bargaining agree-
ment negotiated by the predecessor and is ordinarily free to uni-
laterally set initial terms and conditions of employment.24 The
Court recognized, however, that “there will be instances in which
it is perfectly clear that the new employer plans to retain all of
the employees in the unit and in which it will be appropriate to
have him initially consult with the employees’ bargaining repre-
sentative before he fixes terms.” 406 U.S. at 294‒295. In Spruce
Up Corp., 209 NLRB 194 (1974), enfd. per curiam 529 F.2d 516
(4th Cir. 1975), the Board interpreted the “perfectly clear” caveat
in Burns as “restricted to circumstances in which the new em-
ployer has either actively or, by tacit inference, misled employ-
ees into believing they would all be retained without change in
their wages, hours, or conditions of employment, or at least to
circumstances where the new employer ... has failed to clearly
announce its intent to establish a new set of conditions prior to
inviting former employees to accept employment.” Id. at 195
(footnote omitted).25 In this case, each of the employees who
testified confirmed that Huffnagel advised them during the No-
vember 9, 2017 mandatory meetings that those who wanted to
work for Stein would need to fill out an application, sit down for
an interview, and be subjected to a physical, drug test, and back-
ground check—and there were no guarantees of employment.
Huffnagel also announced that there would be several significant
changes to their wages, hours, and other terms and conditions of
employment. As a result, I find Stein is not a “perfectly clear”
successor, and, thus, theoretically permitted to set initial terms
and conditions of employment.
The Board, however, has held that a successor may forfeit its
right to unilaterally set initial terms and conditions of employ-
ment by engaging in concomitant unfair labor practices. See
e.g., Galloway School Lines, Inc. 321 NLRB 1422 (1996) (suc-
cessor forfeited right to set initial terms by violating Section
8(a)(3) with unlawful hiring plan designed to avoid having to
recognize the collective-bargaining representative of the
504 (1980). It hardly promotes industrial peace to allow successor-em-
ployers to sort and sift through historical bargaining units of employees,
whom those employers are continuing to employ under the same circum-
stances, picking and choosing the extent to which they will recognize and
not recognize the historical bargaining agent as the exclusive collective-
bargaining representative of historically-represented employees.
25 The Board has since clarified that, although the Court in Burns, and
the Board in Spruce Up, spoke in terms of a “plan[] to retain all of the
employees in the unit,” the relevant inquiry is whether the successor
“[p]lanned to retain a sufficient number of predecessor employees to
make it evident that the Union’s majority status would continue” in the
new work force. Data Monitor Systems, Inc., 364 NLRB No. 4, slip op.
at 3 (2016); Adams & Associates, Inc., 363 NLRB No. 193, slip op. at 3
(2016); and Galloway School Lines, 321 NLRB 1422, 1426‒1427
(1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
predecessor’s employees; as a remedy, ordered to restore and
maintain previous terms and conditions); U. S. Marine Corp.,
293 NLRB 669 (1989), enfd. en banc 944 F.2d 1305 (7th Cir.
1991), cert. denied 503 U.S. 936 (1992); Shortway Suburban
Lines, 286 NLRB 323 (1987), enfd. 862 F.2d 309 (3d Cir. 1988);
State Distributing Co., 282 NLRB 1048 (1987); Love’s Barbe-
que Restaurant, 245 NLRB 78 (1979), enfd. in relevant part sub
nom. Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981). See also
Smoke House Restaurant, 347 NLRB 192, 203 (2006) (successor
forfeited right to set initial terms by violating Section 8(a)(1)
with statements to applicants that it would operate non-union; as
remedy, ordered to restore and maintain previous terms and con-
ditions); and Advanced Stretchforming International, 323 NLRB
529 (1997), enfd. in relevant part 233 F.3d 1176 (9th Cir. 2000),
on remand 336 NLRB 1153 (2001) (same).
In Advanced Stretchforming, the successor employer acquired
the assets of the bankrupt predecessor and told the employees
that a majority of them would he hired but there would be no
union and no seniority. All employees interviewed for employ-
ment were informed that they would be working under new
terms and conditions which were subject to change, the succes-
sor was not assuming the predecessor’s collective-bargaining
agreement, and they would be employed on an at-will basis. In
finding a violation, the Board held:
The fundamental premise for the forfeiture doctrine is that it
would be contrary to statutory policy to “confer Burns rights
on an employer that has not conducted itself like a lawful Burns
successor because it has unlawfully blocked the process by
which the obligations and rights of such a successor are in-
curred.” [State Distributing Co., 282 NLRB at 1049]. In other
words, the Burns right to set initial terms and conditions of em-
ployment must be understood in the context of a successor em-
ployer that will recognize the affected unit employees’ collec-
tive-bargaining representative and enter into good-faith negoti-
ations with that union about those terms and conditions.
…
At the time of successorship, however, the Respondent did not
conduct itself like a lawful Burns successor. At this unsettling
time of transition, when “a union is in a peculiarly vulnerable
position” and employees “might be inclined to shun support for
their former union, especially if they believe that such support
will jeopardize their jobs with the successor,” the Respondent
unlawfully declared … that there would be no union for those
whom it hired. Fourteen days later, the Respondent relied on
the results of an employee poll tainted by [this] statement when
it refused to bargain with the Union and thereafter refused to
recognize the Union as the unit employees’ representative.
A statement to employees that there will be no union at the suc-
cessor employer’s facility blatantly coerces employees in the
exercise of their Section 7 right to bargain collectively through
a representative of their own choosing and constitutes a facially
unlawful condition of employment. Nothing in Burns suggests
that an employer may impose such an unlawful condition and
still retain the unilateral right to determine other legitimate ini-
tial terms and conditions of employment. A statement that there
will be no union serves the same end as a refusal to hire em-
ployees from the predecessor’s unionized work force. It
“block[s] the process by which the obligations and rights of
such a successor are incurred.” State Distributing, 282 NLRB
at 1049.
Id. at 530-531 (footnotes omitted).
Relying on Advanced Stretchforming, the General Counsel ar-
gues the forfeiture doctrine applies in this case, and that Stein
lost the right to set initial terms and conditions of employment,
because of the serious nature of the unfair labor practices it com-
mitted prior to commencing operations on January 1. I agree.
Under Burns, a successor’s right to unilaterally set initial terms
and conditions is based on the presumption that it will then, upon
request, recognize and bargain in good-faith with the affected
unit employees’ representative. Stein, however, had no intention
of recognizing and bargaining in good-faith with Teamsters Lo-
cal 100 or Laborers Local 534. From the outset, Stein wanted
one bargaining unit, represented by one union. In August 2017,
before Stein was awarded the slag/scrap contract, it solicited
IUOE Local 18 about merging the three units into one and rec-
ognizing Local 18 as the unit’s exclusive bargaining representa-
tive. Stein took this action even though Respondents knew the
laborers and drivers units were already represented, and there
was no evidence that any—let alone a majority—of the employ-
ees in either of those units wanted to be represented by Local 18.
After Local 18 agreed to this sham arrangement, Respondents
met for negotiations, and, on October 12, 2017, Stein sent a draft
agreement recognizing Local 18 as the exclusive bargaining rep-
resentative for the merged unit, when Local 18 did not represent
a majority of the employees in the drivers or laborers units, and
when Stein had not yet hired a single employee to perform the
slag/scrap work. As stated, Stein’s conduct violated Section
8(a)(2) and (1) of the Act. Following this unlawful recognition,
Stein began pressing Local 18 to execute their agreement
quickly, so the new terms and conditions could be implemented
once Stein commenced operations. Later, on November 9, 2017,
Stein, through Huffnagel, informed all TMS employees that if
they were hired by Stein their work would fall under Local 18’s
jurisdiction, which effectively informed the drivers and laborers
that Stein would unlawfully refuse its obligation under Burns to
recognize and bargain with their chosen representatives. This
statement violates Section 8(a)(1) of the Act. See Pressroom
Cleaners, 361 NLRB 643, 667 (2014) (statement to employees
that they will not have their union at the successor employer’s
facility blatantly coerces employees in the exercise of their Sec-
tion 7 rights to bargain collectively through a representative of
their own choosing and constitutes a facially unlawful condition
of employment). Then, on December 22, 2017, Stein continued
to violate Section 8(a)(2) and (1) of the Act when it executed the
collective-bargaining agreement recognizing Local 18 as the
unit’s bargaining representative, even though Stein still had not
received evidence that Local 18 had majority support among any
of the three units, and before Stein had hired a substantial and
representative compliment of employees. In fact, as of January
1, when Respondents began applying the terms of their collec-
tive-bargaining agreement to all employees, Stein still had not
STEIN, INC. 25
been presented with evidence that Local 18 had majority support
among any of the three units.
Stein argues that applying the forfeiture doctrine in this case
would be inconsistent with the holding in Burns. I reject this
argument. As stated, under Burns, a successor employer is not
bound by the substantive terms of a collective-bargaining agree-
ment negotiated by its predecessor and is ordinarily free to set
initial terms and conditions of employment unilaterally, absent it
being a “perfectly clear” successor. The successor’s duty to bar-
gain will not normally arise before it sets initial terms because it
is not usually evident whether the union will retain majority sta-
tus in the new workforce until after the successor has hired a
substantial and representative complement of employees. Burns,
406 U.S. at 295. In reaching this conclusion, the Burns Court
distinguished between the traditional unilateral change case and
a successor setting initial terms and conditions of employment.
It held the Board’s traditional remedy awarded in the former
would be inappropriate in the latter because the traditional suc-
cessor has “no previous relationship whatsoever to the bargain-
ing unit” and “no outstanding terms and conditions of employ-
ment from which a change could be inferred.” 406 U.S. at 295.26
Stein, however, is not a traditional Burns successor; it is not a
stranger to this unit or uninvolved with the establishment of the
terms and conditions of employment. On the contrary, Stein fab-
ricated this bargaining unit by merging three separate, appropri-
ate units, and then hand-picked the unit’s bargaining representa-
tive, all before it hired any employees. Furthermore, while a tra-
ditional Burns successor is allowed to set initial terms and con-
ditions of employment, it is not permitted to negotiate those
terms and conditions with a union that does not represent an un-
coerced majority of the employees in the unit at issue.
Based on this evidence, and the Board’s holding in Advanced
Stretchforming, I conclude that Stein forfeited its right to unilat-
erally set initial terms and conditions of employment by the se-
rious nature of its unfair labor practices prior to January 1. Thus,
I find Stein violated Section 8(a)(5) and (1) of the Act since Jan-
uary 1 when it failed to continue the terms and conditions of em-
ployment set forth in the most-recent Laborers Local 534 collec-
tive-bargaining agreement and unilaterally changed mandatory
subjects of bargaining, such as: hourly pension contributions to
Trustees of the Ohio Laborers District Council, Ohio Contractors
Association Insurance and Pension Fund; hourly health and wel-
fare contributions to Trustees of the Ohio Laborers District
Council, Ohio Contractors Association Insurance and Pension
Fund; hourly contributions for Training & Apprenticeship and
Laborers’ District Council of Ohio, wage rates; shift differential;
overtime payments in excess of 8 hours per day; vacation pay;
work schedule; call outs or unscheduled overtime outside of the
regular or established shifts; seniority provisions; safety equip-
ment and protective clothing; and definition and assignment

26 In the traditional Burns successor case, the remedy is to order the
employer to recognize the union and bargain, upon request, over the unit
employees’ terms and conditions of employment. If after the union has
demanded recognition/requested bargaining, the employer changes
terms and conditions of employment without first notifying the union and
giving it an opportunity to bargain, the remedy also would require the
employer to rescind those unilateral changes and restore the status quo.
work, conditions of work, and job classifications, and probation-
ary period.27
C. Stein Threatened Employees and Unlawfully Assisted or
Supported IUOE Local 18
An employer violates Section 8(a)(1) of the Act if it threatens
or coerces employees with adverse actions if they fail to join or
agree to pay dues to a union that does not represent an uncoerced
majority of the unit employees. See Emerald Green Building
Services, LLC, 364 NLRB No. 109 (2016); and Brown Transport
Corp., 239 NLRB 711 (1978). An employer also violates Sec-
tion 8(a)(2) of the Act when it assists or supports a union that
does not represent an uncoerced majority of the unit employees
by telling employees they will be represented by that union, dis-
tributing membership applications and dues check authorization
cards and telling employees to complete and submit them as a
condition of employment, and by allowing that union to tell em-
ployees that they need to become members of that union. See
Emerald Green Building Services, supra. Brown Transport
Corp., supra. Based on the unrefuted evidence, I find that Stein,
through Jason Westover violated Section 8(a)(1) and (2) of the
Act, when he unlawful assisted IUOE Local 18 on around Janu-
ary 3 and in mid-February by distributing membership applica-
tions and check off authorizations on behalf of Local 18 to em-
ployees in the laborers unit and advised them to complete and
submit those documents. I also find that Westover violated Sec-
tion 8(a)(1) of the Act, when he threatened employees in early
January and mid-February, that they would be removed from the
work schedule if they did not complete and submit the member-
ship application and check off authorization on behalf of Local
18. Similarly, I find based on the unrefuted evidence that Jeff
Porter violated Section 8(a)(1) of the Act in mid-February or
early March when he threatened employees that they would be
removed from the work schedule if they did not complete and
submit the membership application and check off authorization
on behalf of Local 18.
D. IUOE Local 18 Threatened Employees and Received Un-
lawful Assistance and Support
It is a violation of Section 8(b)(1)(A) of the Act for a union
which lacks majority support among the unit employees to be
allowed to distribute membership applications and dues-
checkoff authorization cards to those employees. North Hills Of-
fice Services, 342 NLRB 437, 445 (2004). As stated, I find that
Stein allowed Gabbard on the jobsite multiple times to distribute
permit packets, and distributed packets for him, in violation of
Section 8(b)(1)(A) of the Act.
E. Stein Unlawfully Discharged Ken Karoly.
Stein relied upon its unilateral change to the length of the pro-
bationary period—extending it from 60 calendar days to 90 days
27 As previously stated, it was Stein’s unlawful unilateral changes to
the definition and assignment of work, among others, that resulted in em-
ployees being assigned to perform cross-jurisdictional work. Respond-
ents, therefore, cannot rely upon the results of Stein’s unlawful actions
as evidence that the historical units are no longer appropriate. Dodge of
Naperville, supra at 2253‒2254
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
of actual work—to discharge Ken Karoly without needing to
comply with the applicable contractual procedures. Probation-
ary periods constitute a mandatory subject of bargaining. Puerto
Rico Junior College, 265 NLRB 72, 77 (1982); and Associate
Growers, 253 NLRB 31, 42 (1980). As stated, Stein violated
Section 8(a)(5) and (1) of the Act when it failed to maintain the
existing terms and conditions of employment, and when it failed
to provide Laborers Local 534 with notice and opportunity to
bargain prior to implementing this change to the probationary
period. See Camelot Terrace, 357 NLRB 1934 (2011). An em-
ployer violates Section 8(a)(5) and (1) of the Act when it dis-
charges a unit employee pursuant to an unlawful unilateral
change to employees’ terms and conditions of employment. San
Miguel Hospital Corp., 357 NLRB 326, 326‒327 (2011). As a
result, I find that Stein also violated Section 8(a)(5) and (1) when
it relied upon the unlawful unilateral change to the probationary
period to discharge Karoly.
In light of this finding, I need not address the General Coun-
sel’s alternate argument that under Total Security Management
Illinois 1, LLC, 364 NLRB No. 106 (2016), Stein violated Sec-
tion 8(a)(5) and (1) of the Act when it failed to provide Laborers
Local 534 with prior notice and an opportunity to bargain before
it made the discretionary decision to discharge Karoly.
CONCLUSIONS OF LAW
1. Stein, Inc. (“Stein”) is a contractor performing the scrap
reclamation, slag removal, and processing of slag (“slag/scrap
work”) for AK Steel at its Middletown, Ohio location, and is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers (IUOE) Local
18 (“IUOE Local 18”) and Laborers’ International Union of
North America (LIUNA), Local 534 (“Laborers Local 534”) are
labor organizations within the meaning of Section 2(5) of the
Act.
3. The following unit of employees (hereinafter “laborers
unit”) is appropriate within the meaning of Section 9(b) of the
Act:
[A]ll general labor work and clean up, laborer-foreman,
lancer/jack hammer man, switch cleaning, utility laborer, qual-
ity control laborer, water tenders (knock out and all pits), safety
men and all equipment to perform their task [sic.], pumps (4”
and smaller), and changing bags in bag houses, employees em-
ployment by [the Employer] at its AK Steel, Middletown, Ohio
facility, excluding all other production and maintenance em-
ployees, office clerical employees, professional employees,
guards and supervisors as defined by [the Act].
4. Laborers Local 534 is and, at all material times, has been
the recognized collective-bargaining representative of the labor-
ers unit within the meaning of Section 9(a) of the Act.
5. Since January 1, 2018, Stein has been the successor em-
ployer to TMS International, Inc. (“TMS”) when it assumed the
contract to perform the slag/scrap work for AK Steel at its Mid-
dletown, Ohio location and continued to perform that work in
basically unchanged form, employing as a majority of its em-
ployees individuals who were previously employees of TMS, in-
cluding a majority of the employees in the laborers unit.
6. The most recent collective-bargaining agreement covering
the terms and conditions of employment for the laborers unit is
dated March 1, 2013 to August 31, 2016, which was later ex-
tended through mutual agreement until December 31, 2017
(hereinafter “Laborers Local 534 collective-bargaining agree-
ment”).
7. Stein violated Section 8(a)(1) of the Act when it informed
all potential applicants from TMS, including from the laborers
unit, that all jobs related the performance of the slag/scrap work
would be under IUOE Local 18.
8. Stein violated Section 8(a)(2) and (1) of the Act since about
October 12, 2017, when it recognized IUOE Local 18 as the ex-
clusive collective-bargaining representative of the employees in
the laborers unit, and on December 22, 2017, when it entered into
a collective-bargaining agreement with IUOE Local 18, and
since January 1, 2018, when it began maintaining and enforcing
the terms of that agreement, including the union-security and
dues-checkoff provisions, on employees in the laborers unit, at a
time when Local 18 did not represent an unassisted and unco-
erced majority of the employees in that unit, and those employ-
ees were represented for collective-bargaining purposes by La-
borers Local 534.
9. (a) Stein forfeited its right to set initial terms and conditions
of employment for the employees in the laborers unit by the un-
fair labor practices described above in paragraphs 7 and 8, and,
therefore violated Section 8(a)(5) and (1) of the Act since Janu-
ary 1 when it began applying the terms and conditions of the col-
lective-bargaining agreement referred to in paragraph 8 on the
laborers unit; and
(b) by unilaterally changing the existing terms and conditions
of employment, contained in the collective-bargaining agree-
ment referred to above in paragraph 6, including: hourly pension
contributions to Trustees of the Ohio Laborers District Council,
Ohio Contractors Association Insurance and Pension Fund;
hourly health and welfare contributions to Trustees of the Ohio
Laborers District Council, Ohio Contractors Association Insur-
ance and Pension Fund; hourly contributions for Training & Ap-
prenticeship and Laborers’ District Council of Ohio, wage rates;
shift differential; overtime payments in excess of 8 hours per
day; vacation pay; work schedule; call outs or unscheduled over-
time outside of the regular or established shifts; seniority provi-
sions; safety equipment and protective clothing; and definition
and assignment work, conditions of work, and job classifica-
tions, and probationary period.
10. Stein violated Section 8(a)(3) and (1) of the Act by main-
taining and enforcing the union-security and dues-check off pro-
visions referred to above in paragraph 8 on employees in the la-
borers unit, when Local 18 did not represent an unassisted and
uncoerced majority of the employees in that unit.
11. Stein violated Section 8(a)(5) and (1) of Act since January
1, 2018, and/or at least February 20, 2018, when it failed and
refused Laborers Local 534’s requests for recognition and bar-
gaining as the Section 9(a) bargaining representative of the la-
borers unit.
12. Stein violated Section 8(a)(2) and (1) of the Act by grant-
ing assistance and support to IUOE Local 18 by allowing access
to the jobsite to distribute, and assisting in the distribution of,
membership applications and dues-checkoff authorizations to
STEIN, INC. 27
employees in the laborers unit; and violated Section 8(a)(1) of
the Act by threatening or otherwise coercing employees in the
laborers unit to join and pay dues and fees to IUOE Local 18,
when IUOE Local 18 did not represent an unassisted and unco-
erced majority of the employees in that unit.
13. Stein violated Section 8(a)(5) and (1) of the Act when it
discharged Ken Karoly pursuant to the unilateral change to the
probationary period.
14. IUOE Local 18 violated Section 8(b)(1)(A) and (2) of the
Act by accepting recognition from Stein as the exclusive bar-
gaining representative of the employees in the laborers unit, by
entering into, maintaining, and enforcing the terms of the collec-
tive-bargaining agreement referred to above in paragraph 8, and
by receiving dues and fees from the employees in the laborers
unit, when IUOE Local 18 did not represent an unassisted and
uncoerced majority of the employees in the laborers unit.
15. IUOE Local 18 violated Section 8(b)(1)(A) of the Act
when its agents threatened employees in the laborers unit that
they would be taken off the schedule if they did not join and pay
fees and dues to Local 18, when IUOE Local 18 did not represent
an unassisted and uncoerced majority of the employees in the
laborers unit.
16. IUOE Local 18 violated Section 8(b)(1)(A) of the Act by
receiving assistance and support from Stein by being allowed on
the jobsite to distribute membership applications and dues-
checkoff authorization cards to employees in the laborers unit.
17. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Stein and IUOE Local 18 have engaged in
certain unfair labor practices, I shall order them to cease and de-
sist and to take certain affirmative action designed to effectuate
the policies of the Act.
Stein is ordered to withdraw recognition from IUOE Local 18
as the collective-bargaining representative of the employees in
the laborers unit and cease and desist applying the contract be-
tween Stein and IUOE Local 18, including, but not limited to,
the union-security and dues-checkoff provisions, to the employ-
ees in the laborers unit, when IUOE Local 18 did not represent
an unassisted and uncoerced majority of the employees in that
unit Likewise, IUOE Local 18 is ordered to cease accepting
Stein’s recognition as the representative of the employees in the
laborers unit, when IUOE Local 18 does not represent an unas-
sisted and uncoerced majority of the employees in that unit.
Stein also is ordered to recognize and bargain with Laborers
Local 534 as the exclusive bargaining representative of the em-
ployees in the laborers unit with respect to wages, hours, and
other terms and conditions of employment and, if an agreement
is reached, embody it in a signed document. Additionally, Stein
must, upon request of Laborers Local 534, rescind any departure
from the terms and conditions of employment that existed before
January 1, 2018, and retroactively restore preexisting terms and
conditions of employment, including: hourly pension contribu-
tions to Trustees of the Ohio Laborers District Council, Ohio
Contractors Association Insurance and Pension Fund; hourly
health and welfare contributions to Trustees of the Ohio Laborers
District Council, Ohio Contractors Association Insurance and
Pension Fund; hourly contributions for Training & Apprentice-
ship and Laborers’ District Council of Ohio, wage rates; shift
differential; overtime payments in excess of 8 hours per day; va-
cation pay; work schedule; call outs or unscheduled overtime
outside of the regular or established shifts; seniority provisions;
safety equipment and protective clothing; and definition and as-
signment work, conditions of work, and job classifications, and
probationary period, until Stein negotiates in good faith with La-
borers Local 534 to an agreement or to impasse. Backpay shall
be computed as in Ogle Protection Service, 183 NLRB 682
(1970) enfd. 444 F.3d 502 (6th Cir. 1971), plus interest as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). Stein shall compensate affected employees for
adverse tax consequences, if any, of receiving a lump-sum back-
pay award, in accordance with Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014). In addition, in accordance
with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016),
Stein shall, within 21 days of the date the amount of backpay is
fixed either by agreement or Board order, submit and file with
the Regional Director for Region 9 a report allocating the back-
pay award to the appropriate calendar year. The Regional Direc-
tor will then assume responsibility for transmission of the report
to the Social Security Administration at the appropriate time and
in the appropriate manner.
The remedial order also includes paying any additional
amounts due to the above-referenced funds as a result of the
above violations, in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979) and Smoke House Restau-
rants, Inc., 365 NLRB No. 166 (2017).
Stein shall offer Ken Karoly full reinstatement to his former
job or, if such job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges previously enjoyed. It is further ordered to make him
whole for any loss of earnings and other benefits suffered as a
result of his unlawful discharge. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). Moreover, in accordance
with King Soopers, Inc., 364 NLRB No. 93 (2016), Stein shall
compensate Karoly for his search-for-work and interim employ-
ment expenses, if any, regardless of whether those expenses ex-
ceed interim earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net back-
pay, with interest at the rate prescribed in New Horizons, supra,
compounded daily as prescribed in Kentucky River Medical Cen-
ter, supra. It is further ordered to compensate Karoly for any ad-
verse tax consequences associated with receiving a lump-sum
backpay award, and to file with the Regional Director for Region
9 a report allocating the backpay award to the appropriate calen-
dar year. AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016). Stein also is ordered to remove from its files any refer-
ences to his unlawful discharge, and within 3 days thereafter to
notify him in writing that this has been done and that his unlaw-
ful discharge will not be used against him in any way.
Further, Stein and IUOE Local 18 shall be jointly and sever-
ally liable for reimbursing all claims by present and former
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
employees of the laborers unit who joined IUOE Local 18 on or
since January 1, 2018, for any initiation fees, periodic dues, as-
sessments, or any other monies they may have paid or that may
have been withheld from their pay pursuant to the collective-bar-
gaining agreement between Stein and IUOE Local 18, together
with interest as prescribed in New Horizons, supra, compounded
daily as prescribed in Kentucky River Medical Center, supra.
Stein and IUOE Local 18 is ordered to post the Board’s stand-
ard Notice to Employees and Notice to Employees and Mem-
bers, Appendix A and B, respectively. I decline the General
Counsel’s request in the amended consolidated complaint that,
as part of the remedial order, the Notices be read to employ-
ees/members. I note that the Board has held that in determining
whether additional remedies are necessary to fully dissipate the
coercive effect of unfair labor practices, it has broad discretion
to fashion a remedy to fit the circumstances of each case. Casino
San Pablo, 361 NLRB 1350, 1355‒1356 (2014); Excel Case
Ready, 334 NLRB 4, 4‒5 (2001). The Notice reading remedy is
atypical and generally ordered in situations when there is a show-
ing that the Board’s traditional notice remedies are insufficient,
such as when a respondent is a recidivist violator of the Act,
when unfair labor practices are multiple and pervasive, or when
circumstances exist that suggest employees will not understand
or will not be appropriately informed by a notice posting. The
General Counsel does not address the basis for this additional
remedy in his post-hearing brief. And while Stein and IUOE
Local 18 committed serious violations, as reflected in my forfei-
ture remedy, there is no evidence of recidivism, pervasive viola-
tions, or that employees will not be appropriately informed by a
traditional notice posting.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended:28
ORDER
A. Stein, and its officers, agents, successors, and assigns, shall
do the following:
1. Cease and desist from:
(a) Failing or refusing to recognize and bargain, on request,
with Laborers Local 534 as the exclusive collective-bargaining
representative of the employees in the laborers unit concerning
wages, hours, and other terms and conditions of employment.
(b) Granting assistance or support to IUOE Local 18, includ-
ing recognizing it as the exclusive collective-bargaining repre-
sentative of the employees in the laborers unit, at a time when
IUOE Local 18 did not represent an unassisted and uncoerced
majority of the employees in that unit, and Laborers Local 534
was the exclusive collective-bargaining representative of the em-
ployees in that unit.
(c) Applying the terms and conditions of employment of the
collective-bargaining agreement with IUOE Local 18, including
its union-security and dues check-off provisions, to the employ-
ees in the driver unit, at a time when IUOE Local 18 does not
represent an unassisted and uncoerced majority of the employees
in that unit.

28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
(d) Failing to continue the terms and conditions of employ-
ment for the employees in the laborers unit in effect prior to Jan-
uary 1, 2018, until Stein negotiates in good faith with Laborers
Local 534 to an agreement or to impasse.
(e) Unilaterally changing wages, hours, or other terms and
conditions of employment applicable to employees in the labor-
ers unit, without providing Laborers Local 534 with prior notice
and an opportunity to bargain over the changes.
(f) Discharging or disciplining employees in the laborers unit
pursuant to unilaterally implemented changes to wages, hours,
and other terms and conditions of employment in effect prior to
January 1, 2018.
(g) Interfering with, restraining, or coercing employees in the
exercise of their Section 7 rights, by making threats or other
statements that they will be represented by IUOE Local 18 and
threatening them with job loss if they do not join and pay dues
and fees to IUOE Local 18.
(h) 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 effectu-
ate the policies of the Act.
(a) Withdraw recognition from IUOE Local 18 as the exclu-
sive collective-bargaining representative of the employees in the
laborers unit.
(b) Refrain from applying the terms and conditions of em-
ployment of the collective-bargaining agreement between Stein
and IUOE Local 18, including its union-security and dues-
checkoff provisions, to the employees in the laborers unit.
(c) Jointly and severally with IUOE Local 18, reimburse all
employees in the laborers unit for all initiation fees, dues, and
other moneys paid by them or withheld from their wages pursu-
ant to the collective-bargaining agreement between Stein and
IUOE Local 18, with interest.
(d) Notify Laborers Local 534, in writing, of all changes made
or effective on or after January 1, 2018 to the terms and condi-
tions of employment for those in the laborers unit and, upon re-
quest of Laborers Local 534, rescind any or all unilaterally im-
posed changes and restore terms and conditions of employment
retroactively to January 1, 2018.
(e) Make employees in the laborers unit and the funds whole
for any losses sustained due to the unlawfully imposed changes
in wages, hours, and other terms and conditions of employment
in the manner set forth above in the remedy section.
(f) Within 14 days from the date of the Board’s Order, offer
Ken Karoly full reinstatement to his former job or, if that job no
longer exist, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges previously
enjoyed, and make Karoly whole for any loss of earnings and
other benefits suffered as a result of his unlawful discharge, com-
pensate Karoly for search-for-work and interim employment ex-
penses regardless of whether those expenses exceed his interim
earnings. in the manner set forth in the remedy section of the
decision, and remove from its files any reference to Karoly’s dis-
charge, in accordance with the above Remedy section.
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
STEIN, INC. 29
(g) Compensate the employees in the laborers unit, including
Karoly, for any adverse income tax consequences of receiving
their backpay in one lump sum, and file with the Regional Di-
rector for Region 9, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar year(s).
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(i) Within 14 days after service by the Region, post at the AK
Steel Middletown, Ohio location copies of the attached notice
marked “Appendix A.”29 Copies of the notice, on forms provided
by the Regional Director for Region 9 after being signed by the
Stein’s authorized representative, shall be posted by Stein and
maintained for 60 consecutive days in conspicuous places
throughout the AK Steel Middletown, Ohio location, including
all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if Stein cus-
tomarily communicates with its employees by such means. Rea-
sonable steps shall be taken by Stein to ensure that the notices
are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, Stein has
closed certain facilities involved in these proceedings, Stein shall
duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Stein
at the AK Steel Middletown, Ohio location, at any time since
October 12, 2017.
(j) 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 Stein
has taken to comply.
B. IUOE Local 18, its officers, agents and representatives,
shall
1. Cease and desist from
(a) Accepting assistance or support from Stein, including
recognition as the exclusive collective-bargaining representative
of the employees in the laborers unit at a time when IUOE Local
18 does not represent an unassisted or uncoerced majority of the
employees in that unit, and at a time when Laborers Local 534
was the exclusive collective-bargaining representative of the em-
ployees in that unit.
(b) Maintaining and enforcing its collective-bargaining agree-
ment with Stein, including its union-security and dues-check-off
provisions, to apply to employees in the laborers unit.
(c) Threatening employees in the laborers unit to join and pay
dues and fees to IUOE Local 18 when it does not represent an
unassisted and uncoerced majority of the employees in that unit.

29 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
(d) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Decline recognition as the exclusive collective-bargaining
representative of the employees in the driver unit.
(b) Jointly and severally with Stein reimburse all present and
former employees from the driver unit for all initiation fees,
dues, and other moneys paid by them or withheld from their
wages pursuant to the collective-bargaining agreement between
Stein and Local 18, with interest.
(c) Preserve and, within 14 days of a request or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents all records, including an electronic copy of such rec-
ords if stored in electronic form, necessary to analyze the amount
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
headquarters and at its offices and meeting halls, copies of the
attached notice marked “Appendix B.” Copies of the notice, on
forms provided by the Regional Director for Region 9, after be-
ing signed by IUOE Local 18’s authorized representative, shall
be posted by IUOE Local 18 and maintained for 60 consecutive
days in conspicuous places, including all places where notices to
employees and members are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an in-
ternet site, or other electronic means, if the IUOE Local 18 cus-
tomarily communicates with its members by such means. Rea-
sonable steps shall be taken by the IUOE Local 18 to ensure that
the notices are not altered, defaced, or covered by any other ma-
terial.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 9, a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the IUOE Local 18 has taken to comply.Dated, Wash-
ington, D.C., January 24, 2019.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT fail or refuse to recognize and bargain with La-
borers’ International Union of North America (LIUNA), Local
534 (“Laborers Local 534”) as the Section 9(a) collective-bar-
gaining representative of the employees the following appropri-
ate unit:
[A]ll general labor work and clean up, laborer-foreman,
lancer/jack hammer man, switch cleaning, utility laborer, qual-
ity control laborer, water tenders (knock out and all pits), safety
men and all equipment to perform their task [sic.], pumps (4”
and smaller), and changing bags in bag houses, employees em-
ployment by [the Employer] at its AK Steel, Middletown, Ohio
facility, excluding all other production and maintenance em-
ployees, office clerical employees, professional employees,
guards and supervisors as defined by [the Act].
WE WILL NOT recognize and provide assistance or support to
the International Union of Operating Engineers (IUOE) Local 18
(“IUOE Local 18”) as the exclusive collective-bargaining repre-
sentative of the employees in the above unit, at a time when
IUOE Local 18 does not represent an unassisted and uncoerced
majority of the employees in that unit, and Laborers Local 534
is the exclusive collective-bargaining representative of the em-
ployees in that unit.
WE WILL NOT apply the terms and conditions of employment
of the collective-bargaining agreement with Stein, Inc., includ-
ing its union-security and dues check-off provisions, to the em-
ployees in the above unit, at a time when IUOE Local 18 does
not represent an unassisted and uncoerced majority of the em-
ployees in that unit.
WE WILL NOT fail to continue the terms and conditions of em-
ployment in effect prior to January 1, 2018 for the above unit,
until we negotiate in good faith with Laborers Local 534 to an
agreement or to impasse.
WE WILL NOT unilaterally change the terms and conditions of
employment applicable to employees in the above unit, without
providing Laborers Local 534 with prior notice and an oppor-
tunity to bargain over the changes.
WE WILL NOT discharge employees pursuant to unilaterally
implemented changes to the terms and conditions of employment
in effect prior to January 1, 2018 to employees in the above unit.
WE WILL NOT interfere with, restrain, or coerce employees in
the above unit regarding the exercise of their Section 7 rights,
including threatening or otherwise coercing them to join and pay
dues and fees to IUOE Local 18 or tell them that all jobs will be
under IUOE Local 18.
WE WILL NOT 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.
WE WILL withdraw recognition from IUOE Local 18 as the
bargaining representative of the employees in the above unit.
WE WILL refrain from applying the terms and conditions of the
collective-bargaining agreement between Stein and IUOE Local
18, including the union-security and dues-checkoff provisions,
to the employees in the above unit, at a time when IUOE Local
18 does not represent an unassisted and uncoerced majority of
the employees in that unit, and Laborers Local 534 is the exclu-
sive collective-bargaining representative of the employees in that
unit
WE WILL, jointly and severally with IUOE Local 18, reim-
burse all employees in the above unit for all initiation fees, dues,
and other moneys paid by them or withheld from their wages
pursuant to the agreement between Stein and IUOE Local 18,
with interest.
WE WILL notify Laborers Local 534, in writing, of all changes
to the wages, hours, and other terms and conditions of employ-
ment for those in the above unit made or in effect on and after
January 1, 2018, and, upon request by Laborers Local 534, re-
scind any or all unilaterally imposed changes to terms and con-
ditions of employment, and restore retroactively the terms and
conditions that existed before January 1, 2018.
WE WILL make those employees in the above unit, as well as
the funds, whole for any losses to their wages or benefits sus-
tained due to the unlawfully imposed changes in wages, hours,
and other terms and conditions of employment, and compensate
them for any adverse income tax consequences of receiving their
backpay in one lump sum.
WE WILL offer Ken Karoly full reinstatement to his former job
or, if that job no longer exist, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or priv-
ileges previously enjoyed, make him whole for any loss of earn-
ings and other benefits suffered as a result of his unlawful dis-
charge, and compensate him for search-for-work and interim em-
ployment expenses regardless of whether those expenses exceed
his interim earnings, compensate him for any adverse income tax
consequences from receiving backpay in one lump sum, and re-
move from our files any reference to his discharge and notify
him, in writing, that has been done.
STEIN, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-215131 or by using the QR code be-
low. 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.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
STEIN, INC. 31
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT accept recognition from Stein, Inc. as the exclu-
sive collective-bargaining representative of the employees in the
following unit, at a time when we do not represent an uncoerced
majority of the employees in the unit, and when Laborers’ Inter-
national Union of North America (LIUNA), Local 534 (“Labor-
ers Local 534”) is the exclusive collective-bargaining representa-
tive of those employees:
[A]ll general labor work and clean up, laborer-foreman,
lancer/jack hammer man, switch cleaning, utility laborer, qual-
ity control laborer, water tenders (knock out and all pits), safety
men and all equipment to perform their task [sic.], pumps (4”
and smaller), and changing bags in bag houses, employees em-
ployment by [the Employer] at its AK Steel, Middletown, Ohio
facility, excluding all other production and maintenance em-
ployees, office clerical employees, professional employees,
guards and supervisors as defined by [the Act].
WE WILL NOT maintain or enforce our collective-bargaining
agreement with Stein, including its union-security and dues-
checkoff provisions, to apply the employees in the above unit.
WE WILL NOT accept assistance or support from Stein, Inc. as
the exclusive collective-bargaining representative of the employ-
ees in the above unit.
WE WILL NOT restrain or coerce you in the exercise of your
rights guaranteed by Section 7 of the Act by threatening employ-
ees from the above unit with adverse consequences if they refuse
to join the International Union of Operating Engineers (IUOE)
Local 18 (“Local 18”).
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL decline recognition as the exclusive collective-bar-
gaining representative of Stein’s employees in the unit described
above.
WE WILL, jointly and severally with Stein, Inc., reimburse all
present and former employees in the unit described above for all
initiation fees, dues, and other moneys paid by them or withheld
from their wages pursuant to the collective-bargaining agree-
ment between Stein and IUOE Local 18, with interest.
THE INTERNATIONAL UNION OF OPERATING ENGINEERS (IUOE)
LOCAL 18
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-215131 or by using the QR code be-
low. 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.