STEIN INC.

National Labor Relations Board - Administrative Judge Opinions

Jan 24, 2019

09-CA-215131 (N.L.R.B. Jan. 24, 2019)

JD–08–19
Middletown, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
STEIN, INC.
and
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA (LIUNA), LOCAL 534
INTERNATIONAL UNION OF OPERATING
ENGINEERS (IUOE) LOCAL 18 (Stein, Inc.)
and
LABORERS’ INTERNATIONAL UNION OF
NORTH AMERICA (LIUNA), LOCAL 534
Case Nos. 09-CA-215131
09-CA-219834
Case No. 09-CB-215147
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 Operating 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 allegations 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 performing the scrap reclamation, slag removal, and processing of slag

1 Abbreviations are as follows: “Tr.” for transcript; “Jt. Exh.” for Joint Exhibits; “G.C. Exh.” for General Counsel’s
Exhibit; “Stein Exhs.” for Stein’s Exhibits; “Local 18 Exhs.” for IUOE Local 18’s Exhibits.
2 All dates are 2018, unless otherwise stated.
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2
(“slag/scrap work”) for AK Steel at its Middletown, Ohio location. For over 20 years, TMS, and its
predecessors, performing this slag/scrap work utilized three bargaining units, individually represented by
IUOE Local 18, Laborers Local 534, and Truck Drivers, Chauffeurs and Helpers Local Union No. 100,
affiliated with the International Brotherhood of Teamsters (“Teamsters Local 100”).3 Although Stein was
aware of the three existing bargaining relationships, it was intent on having only one unit, represented by 5
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 performing the slag/scrap
work. IUOE Local 18 agreed, and on October 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 10
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
application process. Stein advised that those hired would be working under different terms and conditions
of employment, and that all jobs will be under IUOE Local 18. Respondents executed their collective-15
bargaining agreement covering the merged unit on December 22, 2017, prior to hiring any employees. On
January 1, Stein commenced operations, and by January 6, it had hired and employed a “substantial and
representative complement” of employees. A majority of those employees were former 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 20
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
bargaining 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. 25
The amended consolidated complaint alleges that Stein, as a successor employer, violated Sections
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 Local 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 complaint also 30
alleges that IUOE Local 18 violated Sections 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 violations.
II. STATEMENT OF THE CASE
On February 20, Laborers Local 534 filed an unfair labor practice charge against Stein in Case 09-
CA-215131. The following day, Local 534 filed an unfair labor practice charge against IUOE Local 18 in35
Case 09-CB-215147. Local 534 amended both 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 09-40
CA-219834, and later amended that charge on June 27. On June 29, the Regional Director issued a second
order consolidating cases and consolidated 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

3 These consolidated cases were tried together with the amended consolidated 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.
JD–08–19
3
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 5
upon the entire record, including the post-hearing briefs and my observations of the credibility of the
witnesses, I make the following findings, conclusions of law, and recommended remedy and order.
III. FINDINGS OF FACT5
A. Jurisdiction, Labor Organizations, and Agents
10
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 facility 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 15
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.
20
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 25
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

4 On July 9, the General Counsel filed a motion in limine to preclude Respondents from adducing evidence at the
hearing in support of Respondents' respective affirmative defenses related to whether the relationships between TMS
and Teamsters Local 100 and Laborers Local 534, respectively, were governed by Section 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 motion 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 testimony 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 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, testimonial consistency,
the presence or absence of corroboration, the weight of the respective evidence, established or admitted facts, inherent
probabilities, 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 Automotive 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 decisions 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)).
JD–08–19
4
meaning Section 2(13) of the Act: Jefferson S. Powell (district manager), Richard E. Dalton (business
manager), Thomas P. Byers (president), and Justin Gabbard (business agent).
B. Unfair Labor Practices
5
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 10
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 performed at the AK Steel Middletown
location. Slag is a by-product of the steel making process. It is produced when the impurities separate from
the molten steel in the furnaces. Slag begins as a molten liquid melt that solidifies upon cooling. Once 15
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-bidding process. AK Steel has contracted with McGraw Construction Co., then
International Mill Services, Inc., and then Tube City Inc. d/b/a Olympic Mill Service. Tube City and 20
International Mill Services later merged and continued to perform the slag/scrap work at issue under various
corporate names, including Tube City LLC d/b/a IMS Division Tube City IMS, Tube 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. 25
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 recycled. 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 30
truck, transported 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 utilizing three bargaining units: 35
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 drivers. 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 40
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
laborers. 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 45

6 From December 2004 through December 2007, Tube City, LLC and International Mill Service, Inc. operated as
separate wholly owned “sister” 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 company went public and became known as TMS. (Tr. 772).
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18 represents the operators. 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, telehandlers,
etc.); everything except for the dump trucks and water trucks. The operators also include mechanics that
maintain and service all the vehicles and equipment.
5
The three separate units historically worked alongside one another 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. 10
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 1815
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 individual
collective-bargaining agreements with these contractors, setting forth the wages, hours, and other terms and
conditions of employment covering those employees in their respective bargaining units.20
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”):
25
[A]ll general labor work and clean up, laborer-foreman, lancer/jack hammer man, switch
cleaning, utility laborer, quality 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 employment by [Tube City IMS, LLC] at its AK
Steel, Middletown, Ohio facility, excluding all other production and maintenance 30
employees, office clerical employees, professional employees, guards and supervisors as
defined by [the Act].
(Jt. Exh. 6, p. 2).7
35
On around July 29, 2016, John Ponzuric, the director of human 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 Ponzuric again extended that agreement until December 31,
2017. (Jt. Exh. 11)(hereinafter collectively referred to as the “Laborers Local 534 collective-bargaining
agreement”).40
Teamsters Local 100’s most-recent agreement was with TMS, and it is dated April 1, 2016 to
December 31, 2017. In this agreement, Local 100 is recognized as “the sole and exclusive bargaining
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 employees, professional 45

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).
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6
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 5
recognized as “the sole and exclusive bargaining agent” for “all heavy equipment operators,
mechanics/maintenance operators, lube/service operators, plant/conveyor operators, and helpers 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”).1010
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.
15
3. Stein Bids to Replace TMS and Initiates Contact with IUOE Local 18

In 2017, AK Steel opened up for competitive bidding the contract, 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 20
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 majority of the total employees performing 25
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 drivers 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 Local 18 met to discuss negotiating a 30
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 business 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 35
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 Local 18 put together a communication

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 between Tube City IMS, LLC and Teamsters Local 100. (Jt. Exhs. 3 and 4).
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, non-licensed motorized equipment
operators, mechanics/maintenance operators, lube/service operators and plant/conveyor operators employment 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).
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7
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 Powell 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, 5
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 Local 534’s
attorney that TMS would not be engaging in collective bargaining with Local 534 for a successor agreement 10
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 permanent.” 15
At around this time, Stein began purchasing all of TMS’s processing 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 onsite at the Middletown location, observing TMS’s operations and its employees. 20
4. Employee Meetings
On November 9, 2017, Huffnagel held meetings with all the TMS employees performing the
slag/scrap work to discuss employment with Stein. Huffnagel read from the following document:25
Middletown Operations
· Start date/hire date-January 1, 2018
· All jobs will be under the Operating Engineers Local 18 Union30
· It is Stein, Inc.’s goal to hire as many TMS employees as possible who remain in good
standing with TMS through January 1, 2018
· Classification and Rates
Group Job description 1/1/201835
1 General Laborer $ 15.00
Mechanic Helper $ 17.50
Lancer $ 21.93
Lube man $ 20.45
Site Laborer/Safety $ 20.9340
2 Truck Driver $ 21.12
3 General Operator $ 24.63
Crane Operator $ 24.6345
B Mechanic $ 24.63
4 A Mechanic $ 25.00
Hot Pit Operator $ 26.13
Master Mechanic $ 26.2550
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· The following holidays will be observed:
New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
day, day after Thanksgiving, & Christmas day
5
· 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 10
position you must commit to employment with Stein by November 20th
· All prospective employees will be subject to a 90 day probationary period, a physical, and
a background check
15
· All TMS employees at Middletown will be measured for uniforms on Wednesday,
November 15th
(Jt. Exh 13).
20
Huffnagel told the TMS employees that if they wanted to work for Stein, they would need to
complete an employment application, sit for an in-person interview, and pass a physical examination, a
drug screening test, and a background check. He also informed them there was no guarantee that they
would be hired. (Tr. 143-144; 288; 364; 469; 578).
25
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 30
email, “Let’s get this signed soon.” (G.C. Exh. 7). Holvey continued 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 collective-bargaining agreement. (G. C. Exh. 11). As of that date,
Local 18 still had not presented Stein with any authorization cards. (Tr. 206-207).
35
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 recognizes Local 18 as the exclusive collective-bargaining representative for all the hourly
paid employees in the following job classifications: general laborer, mechanic helper, lancer, lube man, site 40
laborer/safety, truck driver, general operator, B-mechanic, hot pit operator, A-mechanic, and master
mechanic; excluding individuals occupying salaried, watchperson, guard, or confidential 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:45
5.01 For the duration of this Agreement, it shall be a condition 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 50
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9
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 initiation fees uniformly required as a condition 5
of acquiring or retaining membership in the Union.
5.03 Upon notification, by the Union, that a uniform administrative dues deduction has
been authorized by all employees of the Company, the Company shall deduct said
uniform administrative dues. The Union shall be responsible for obtaining all
individually signed authorizations.10
…
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
periodic dues, and initiation fees uniformly required by the Union as a condition of
acquiring or retaining membership in the Union.15
(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 20
18 altering the wages, hours, and other terms and conditions of employment applicable to the drivers unit
and the laborers unit.
7. Hiring
25
TMS ceased performing the slag/scrap work for AK Steel at the Middletown location on December
31, 2017.12 As of that date, TMS employed 15 drivers represented by Teamsters Local 100, 14 laborers
represented by Laborers Local 534, and 42 operators represented by IUOE Local 18. (Jt. Exh. 1).
In November and December 2017, Stein held job interviews with those TMS employees who 30
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 January 6, Stein had hired and employed a
“substantial and representative complement” of employees to perform the slag/scrap work at AK Steel’s 35

12 TMS performed other, unrelated work, such as green coil and scarfing work. TMS continued to perform scarfing
work for AK Steel after December 31, 2017. This work was never performed by the three units at issue. (Tr. 321.)
13 At the hearing, Huffnagel testified that while interviewing applicants he advised them that they would be cross-
trained on other duties, but he did not specify what that cross-training would involve. He testified 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 interviews. 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 “do
more than one thing.” (Tr. 1255-126). I do not find that applicants—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 jurisdiction. 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.
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Middletown location. (Jt. Exh. 1). On January 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 former TMS employees,
consisting of 36 from the operators unit, seven 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, 5
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, and10
Nathan Prince), as well as several non-TMS supervisors, including Jason Westover (general foreman) and
Jeffrey Porter (site superintendent). Doug Huffnagel was Stein’s area manager. (Jt. Exh. 18).
8. Commencement of Operations
15
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. 20
As of January 1, Stein began applying the terms of Respondents’ collective-bargaining agreement
on all employees performing 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 January 1. Specifically, there is no dispute Stein 25
altered or did not continue: 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 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 30
or unscheduled overtime outside of the regular or established shifts; seniority provisions; safety equipment
and protective clothing; and definition and assignment work, conditions of work, and job classifications;
and probationary period. (G.C. Exh. 1).
9. Requests to Bargain35
On February 20, Laborers Local 534’s attorney, Ryan Hymore, 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 demanded recognition from Stein as the collective-bargaining
representative of the laborers working at the AK Steel Middletown location. He then wrote: “But to the 40
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 Middletown 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:45
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 certification from the NLRB in our

14 There was no additional evidence introduced regarding these prior communications or messages.
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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 5
negotiations, 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.
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 10
copies of the employees' authorization cards (because, conveniently, they also served as dues
check off authorizations). So there was no dispute that Local 534 always was supported by
100% of the laborers at the Middletown site.
…
15
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 20
being said, Stein does not dispute that it failed or refused to recognize and bargain with Local 543.
10. Alleged Threats and Assistance
Almost immediately after Stein commenced operations, its supervisors and managers began 25
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” included Local 18 union
authorization cards, an application for membership in the International Union of Operating Engineers, a
dues deduction authorization form, group insurance beneficiary designation form, a death benefit 30
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 Engineers District 4/5 Office sent Stein’s area 35
manager Doug Huffnagel an email with a list of IUOE Local 18 members and/or permit 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 40
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. 45
224-225). Huffnagel 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 permit packets. 50
Neace did not fill out the packet at that time. Over the next couple months, Jason Westover gave Neace a
JD–08–19
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permit 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 superintendent Jeff Porter told laborers and 5
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 Local 534 hired by Stein, was present
and testified about Porter’s statement. (Tr. 466-467).15
10
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 Huffnagel’s opinion,
there were certain inefficiencies with how the work was performed, specifically as it related to the strict 15
adherence 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 20
few employees to perform certain tasks outside their traditional job duties, and had those employees
perform those tasks in addition to their traditional job duties. For example, Ova Venters is a former TMS
laborer that Stein hired and later trained to perform certain tasks outside his traditional laborer job duties,
in addition to his traditional laborer duties. By January 3, Venters was trained and occasionally operating
a bobcat, and, by January 17, he was trained and occasionally operating a backhoe, both are jobs previously 25
only performed by operators. By January 23, Venters was trained to operate the water truck, and there were
instances thereafter when he was assigned to perform that job, which is a job previously only performed by
drivers. In February, Venters continued 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.
30
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 telehandler, a job previously only performed by operators. By mid-
February, Wilhoite was trained and occasionally running bobcats/skid steers. By February 27, Wilhoite
was trained and occasionally assigned to operate front-end loaders. Wilhoite also began driving the pick-35
up trucks to drive off site to get parts, a job previously only performed by drivers.
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 40
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 telehandler 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 45
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

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 adverse inferences are
unnecessary because the credited testimony is uncontradicted.
JD–08–19
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pickup trucks. As of February 8, Neace was trained and assigned to run the processing plants. That
eventually became his primary assignment.
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 5
operating off-road dump trucks, in addition to his traditional laborer duties. Michael Kingery is a former
TMS operator 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.
10
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 responsibilities of knockout safety attendant are to cool down 15
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 personnel and equipment involved in the digging, loading, and transporting 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 cellular phone to use during their shift.
(Tr. 1217-1218; Stein Exh. 10).20
In March, Karoly accidently ran over the cell phone, damaging it. (Tr. 411-413, 1219). He reported
the incident and he documented it in his paperwork. Karoly met separately with Jason Westover and Doug
Huffnagel about damaging the phone. Karoly was not issued any discipline for the incident. (Tr. 413).
25
On March 19, an AK Steel manager complained to Huffnagel that there were reports that crew
members were not able to communicate 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 channel. (Tr. 1222-1225). Later, AK Steel’s
blast furnace foreman called Huffnagel very irate about not being able to reach Karoly. Stein ended up 30
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 operator. (Tr. 35
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 40
could terminate Karoly because he had not yet completed 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).

16 The section of the document explaining the reason for the employer’s decision concluded with a sentence, “On 4/17
to 4/18 Mr. Karoly 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 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.
JD–08–19
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There is no dispute Stein never informed or offered to bargain with Local 534 over its discharge
decision.
IV. CONTENTIONS OF THE PARTIES5
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 Laborers Local 534 as the exclusive 10
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 Local 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 15
conditioning continued 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 Sections 8(b)(1)(A) and (b)(2) of
the Act. 20
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, maintained, and enforced a collective-bargaining agreement covering that unit of employees. 25
V. LEGAL ANALYSIS
A. Stein is a successor to TMS and, therefore, obligated to recognize and bargain with Laborers
Local 534 as the exclusive collective-bargaining representative of the laborers unit.30
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 continue, and the successor is obligated to bargain with the union(s) representing the 35
predecessor’s employees, when: (1) there is substantial continuity between the two enterprises, (2) the
successor hired as a majority of its employees the predecessor's employees, 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).
40

17 In Burns, the William T. Burns International Detective Agency replaced 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
Workers (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 Federal of Guards
(AFG) as the union representing the employees at the 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 bargain with UPGW, but it was not obligated to honor its contract with Wackenhut.
JD–08–19
15
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 peculiarly vulnerable position. It has
no formal and established bargaining relationship with the new employer, is uncertain about 5
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 union
also must protect whatever rights still exist for its members under the collective-bargaining
agreement with the predecessor employer. Accordingly, during this unsettling transition
period, the union needs the presumptions of majority status to which it is entitled to safeguard 10
its members' rights and to develop a relationship with the successor.
The position of the employees also supports the application of the presumptions in the
successorship situation. If the employees find themselves in a new enterprise that substantially
resembles the old, but without their chosen bargaining representative, they may well feel that 15
their choice of a union is subject to the vagaries of an enterprise's transformation. This feeling
is not conducive to industrial peace. In addition, after being hired by a new company following
a layoff from the old, employees 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 support will jeopardize their jobs with the successor or if they are 20
inclined to blame the union for their layoff and problems associated with it. Without the
presumptions of majority support 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 employees' hesitant attitude towards the union to eliminate its
continuing presence.25
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 30
omitted). The successor is “under no obligation 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 successorship 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 their35
representative. Id. at 40-41.
a. Substantial Continuity
The first inquiry is whether there is a “substantial continuity” between Stein and TMS in the 40
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 circumstances and requires the Board focus on whether the new
entity has taken over substantial assets of the predecessor and “continued, 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 identified the following factors as relevant to the analysis: (1) 45
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 supervisors; 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 importantly, these factors are to be analyzed
from the perspective of the employees who worked for the predecessor, i.e., whether they “understandably 50
view their job situations as essentially unaltered.” Id. (quoting Golden State Bottling Co., supra at 184).
JD–08–19
16
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 throughout the country.
Stein replaced TMS as the contractor and immediately began performing the same work, producing the
same product, for the same customers, at the same location. Furthermore, Stein acquired all of TMS’s 5
property and assets (except for the computer equipment) used to perform the slag/scrap work. And there
was no hiatus in operations: a majority 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, purchased 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 10
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 hiatus); A. J. Myers & Sons, 15
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 Equipment, Inc., 336 NLRB 1059, 1063-1064 (2001)
(finding substantial continuity where employees continued to perform essentially the same work even
though successor provided different supervision, different pay rates and benefits, and newer equipment);
and M.S. Management Associates, Inc., 325 NLRB 1154, 1155 (1998) (finding substantial continuity where 20
the successor provided 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 purchased a significant amount of
new equipment, the type of equipment purchased was similar to the equipment upon which the predecessors' 25
employees worked). Based on the totality of the circumstances, I find the drivers and laborers would
understandably view their job situations as essentially unaltered.
b. Hired a Majority of Predecessor's Employees
30
The second inquiry is whether Stein hired as majority of its workforce former TMS employees. As
a general rule, the relevant measuring day to determine if the successor employed a majority of the
predecessor’s employees is the initial date the successor 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 ceased operations with a majority of its employees drawn from the 35
predecessor's workforce. 406 U.S. at 272. In Fall River Dyeing, the successor took over and began
operations after a hiatus that lasted several months. The new employer started up operations and hired
employees gradually over time. Explicitly contrasting the situation to that in Burns, the Court in Fall River
Dyeing pointed out that:
40
[i]n other situations, as in the present case, there is a start-up period by the new employer while
it gradually builds its operations and hires employees. In these situations, the Board, with the
approval of the Courts of Appeals, has adopted the “substantial and representative
complement” rule for fixing the moment when the determination as to the composition of the
successor's work force is to be made. If, at this particular moment, a majority of the successor's 45
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).
50
JD–08–19
17
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 substantial 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 classifications are substantially
filled, its operations are in substantially normal production, and it does not reasonably expect to increase 5
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 generally, with the requirement that a bargaining demand is necessary 10
to trigger the successor’s duty to bargain. See e.g., Ports America 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. 15
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
As stated, the parties stipulated that on January 1 and/or by January 6, Stein had hired and employed 20
a “substantial and representative complement” of employees to perform the slag/scrap work at AK Steel’s
Middletown location, and the evidence establishes 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 25
Stein recognize Local 534 as the exclusive representative of the laborers 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 February 20, Stein had an obligation to recognize and bargain
with Local 534 as the exclusive representative of the laborers unit.
30
c. Appropriateness of Unit
The third inquiry is whether the bargaining unit of the predecessor remains appropriate for the
successor. See Banknote Corp. of America, 315 NLRB 1041, 1043 (1994), enfd. 84 F.3d 637 (2d Cir. 1996),

18 In Fall River Dyeing, the Court explained, the “[substantial and representative complement] rule represents an effort
to balance the objective of insuring maximum employee participation in the selection of a bargaining 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 representative.” 482 U.S.
at 48-49 (internal quotation marks omitted). That is precisely 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 short before the actual implementation for meaningful bargaining, or when the employer has no
intention of changing its mind. In those instances, 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 generally, 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. It, therefore, would have been futile for Laborers Local 534 to demand
recognition/request bargaining, because Stein’s recognition of IUOE Local 18, and the implementation of the changes
to the terms and conditions of employment, were a fait accompli.
JD–08–19
18
cert. denied 519 U.S. 1109 (1997); and Paramus Ford, Inc., 351 NLRB at 1023. In Burns, supra, the
Supreme Court found that the successor employer (Burns) was obligated 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 because Burns' operational structures and practices differed
from those of Wackenhut, the Lockheed bargaining unit was no longer an appropriate one.” 406 U.S. at 5
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 bargaining 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 & Service, 288 NLRB 1123, 1126 (1988)(historical unit likely appropriate if the
predecessor employer recognized it, even if the unit would not be appropriate under Board standards if it 10
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 appropriate. 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 15
to Board policy[;] “that “compelling circumstances” are present that “overcome the
significance 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.’”
20
Id. at 118 (internal citations omitted). See also Deferiet Paper Co. v. NLRB, 235 F.3d 581, 584 (D.C Cir.
2000)(an alleged successor may demonstrate that a preexisting unit is no longer appropriate by showing
significant revisions in plant operations and employee duties).
The continued appropriateness of the historical unit is measured at the time the bargaining 25
obligation attaches. Cadillac Asphalt Paving Co., 349 NLRB at 9.
Respondents argue as result of the cross-training and assignment of cross-jurisdictional work, the
three separate units are no longer appropriate because they have been functionally integrated into one
merged unit. In Banknote Corp. of America, supra, the Board considered the possible accretion of existing 30
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 informed job applicants during their
interviews that they would be asked to perform additional tasks outside their normal job duties. Thereafter, 35
the successor cross-trained and assigned certain employees 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 duties. 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 40
duties occurred after the bargaining 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 contractual
provisions addressing the definition and assignment of work, conditions of work, and job classifications. 45
See Dodge of Naperville, 357 NLRB 2252, 2253-2254 (2012) (“In determining whether an established
bargaining unit retains its distinct identity, we do not consider the effects of the Respondent's unlawful,
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).
50
JD–08–19
19
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 5 laborers and 1 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 6 did not begin performing cross-jurisdictional work until March, well after 5
the bargaining obligation attached. The remaining 4 employees--all laborers--performed limited cross-
jurisdictional work through February, while continuing to perform their primary laborer duties. In other
words, only four out of the 60 employees Stein hired were cross-trained and performing 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 10
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.
15
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 business and hired its
employees who were represented by the Teamsters. The employer already had employees who performed
repair/maintenance work on certain mobile equipment (e.g., forklifts and cranes), but not trucks. Those
employees were part of a plant-wide unit represented by the Steelworkers. Following the acquisition, the 20
employer created a new department to handle all mobile maintenance, including equipment and trucks, and
it implemented other operational and physical changes. Thereafter, it merged the truck repair/maintenance
employees from the acquired 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. 25
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 following 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-bargaining agreements. In Border Steel, 30
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-jurisdictional work, in addition to continuing to perform their traditional duties. I find, unlike the
widespread changes that occurred in Border Steel, the limited (and, as discussed below, unlawful) changes
here did not result in the three units becoming so functionally integrated that they no longer maintained 35
their separate identities.

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 being irrelevant
because they post-dated the demands for recognition/requests 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 recognition/request for bargaining there were compelling circumstances that made the historical
units no longer appropriate. See Cadillac Asphalt 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' representational rights do not get put on hold--much less substituted with a union of [the
employer’s] choice--while [the employer] spends months training additional employees…). The rejected exhibits--
which all post-date Laborers Local 534’s demand for recognition/bargaining--are irrelevant, as is the testimony
regarding cross-training and assignment of work after March. That evidence is hereby stricken.
JD–08–19
20
In light of the evidence, I find that since January 1, Stein replaced TMS as the contractor performing
the slag/scrap work at AK Steel’s Middletown location and has continued to perform that work in
substantially unchanged form, employing as a majority of its employees former TMS employees, including
a majority of the TMS laborers unit. Stein, therefore, is TMS’s successor and inherits its recognitional and
bargaining obligations toward Laborers Local 534. 5
2. Respondents’ Section 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 voluntary recognition 10
based on evidence of majority support, establishing 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 15
(1970), enfd. in part 470 F.2d 669 (9th Cir. 1972), the Board held that in a refusal-to-bargain case involving
a previously recognized union, the requisite proof of majority status need not take the form of a Board
certification or card showing:
The existence of a prior contract, lawful on its face, raises a dual presumption of majority--a 20
presumption that the union was the majority representative at the time the contract was
executed, and a presumption that its majority continued at least through the life of the contract.
Following expiration of the contract, this presumption continues and is not dependent
on independent evidence that the bargaining relationship was originally established by a
certification or majority card showing. The presumption applies not only to a situation where 25
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 30
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 majority status....”
35
Id. at 963 (internal footnotes omitted).21
Furthermore, assuming there was some defect in the recognition 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) six-month limitations period. Eye 40
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 refusal-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

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 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.
JD–08–19
21
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. 5
Citing to Davenport Insulation, 184 NLRB 908 (1970), Respondents argue that Local 534’s
relationships with these predecessor contractors were all under Section 8(f) of the Act; therefore, 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 10
party is free to repudiate the relationship and decline to negotiate or adopt a successor agreement 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 15
and construction 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 Aggregates, 20
Inc., 246 NLRB 192, 199 (1979), enfd. 639 F.2d 865 (2d Cir. 1981)).
However, the parties stipulated that this slag/scrap work, as it has been performed by Stein, TMS,
and the predecessor contractors at the AK Steel Middletown location, is not, and has never been, building
and construction industry work. (Jt. Exh. 1). Setting that aside, the Board has held that “the so-called 25
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 Local 83, 243 NLRB
328, 331, (1979) (quoting Carpet, Linoleum & Soft Tile Local No. 1247, 156 NLRB 951, 959 (1966)).
Respondents failed to present any evidence that the employees performing the slag/scrap work for Stein,
TMS, or any of the predecessor contractors are or were engaged in this sort of activity.2230
Respondents largely ignore their evidentiary burden and, instead, focus on contractual language to
support their arguments.23 They argue that the Laborers Local 534 agreement contains a hiring hall
procedure that would be illegal under Section 9(a); therefore, the parties must have intended for their
agreement to be covered under Section 8(f). First, and foremost, intent is irrelevant if the employer and 35
employees at issue are not engaged primarily in the building and construction industry. Second, 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 primarily in the building and construction industry, and therefore certain hiring

22Even though the processed slag is often used as an aggregate for road construction, the Board has held that suppliers
of construction materials are, without more, not engaged primarily in the building and construction industry. See
Irving Ready-Mix, Inc., 357 NLRB 1272 (2011) (a ready-mix cement supplier is not a construction employer within
the meaning of Section 8(f) of the Act).
23 Stein argues that one of TMS’s predecessors, McGraw Construction Company, was engaged in the building and
construction industry, because the name of the company contains the word “construction,” and there is 1961 Board
decision in which the company was, for jurisdictional 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
engaged primarily in the building and construction industry while performing the slag/scrap work at AK Steel’s
Middletown location.
JD–08–19
22
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
provide newly hired employees the legally established grace period in which to become union members, 5
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 construction industry, but not for employers outside that industry. The Board found
the maintenance of the union-security provision to be unlawful, but refused to entertain the respondent's 10
contention that the union lacked majority status at the time the contract was executed since the asserted lack
of majority status 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 employed in the “construction industry” even
though they were hired through a hiring hall arrangement).15
As such, I find Laborers Local 534 is, and has been, the Section 9(a) representative of the laborers
unit.
3. Conclusion20
As the lawful successor to TMS, Stein was obligated to recognize and bargain with Laborers Local
534 as the Section 9(a) bargaining representative of the laborers unit. By their conduct, I find Stein violated
Sections 8(a)(5), (3), (2), and (1) of the Act, and IUOE Local 18 violated Sections 8(b)(1)(A) and (b)(2) of
the Act, as alleged in the amended consolidated complaint. See generally, Ports America Outer Harbor, 25
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 recognition/request for bargaining. Stein also violated Section 8(a)(2) and 30
(1) since about October 12, 2017, when it recognized IUOE Local 18 as the exclusive bargaining
representative of the employees 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 unassisted majority of the employees in that
unit. The agreement sets forth the terms and conditions of employment applicable to the employees in the 35
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 because 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 employees. 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 40
employees in the laborers unit, by entering into, maintaining, and enforcing the terms of 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 employment45
applicable to the laborers unit.
In Burns, supra, the Supreme Court held that a successor is not bound by the substantive terms of
a collective-bargaining agreement negotiated by the predecessor and is ordinarily free to unilaterally set
JD–08–19
23
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 representative
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 5
circumstances in which the new employer has either actively or, by tacit inference, misled employees 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 10
the November 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 background 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 15
of employment.
The Board, however, has held that a successor may forfeit its right to unilaterally set initial terms
and conditions of employment by engaging in concomitant unfair labor practices. See e.g., Galloway
School Lines, Inc. 321 NLRB 1422 (1996) (successor forfeited right to set initial terms by violating Section 20
8(a)(3) with unlawful hiring plan designed to avoid having to recognize the collective-bargaining
representative of the 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 Barbeque Restaurant, 245 NLRB 25
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 conditions); 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). 30

24 Under Burns, supra, a successor employer is permitted to set initial terms only to the extent encompassed by Section
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 representation in derogation of employees' guaranteed right
to representatives 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, 504 (1980). It hardly promotes industrial peace to allow successor-employers to sort and
sift through historical bargaining units of employees, whom those employers are continuing to employ
under the same circumstances, 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).
JD–08–19
24
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 employment were informed that they would be working under
new terms and conditions which were subject to change, the successor was not assuming the predecessor’s
collective-bargaining agreement, and they would be employed on an at-will basis. In finding a violation, 5
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 10
of such a successor are incurred.” [State Distributing Co., 282 NLRB at 1049]. In other words,
the Burns right to set initial terms and conditions of employment must be understood in the
context of a successor employer that will recognize the affected unit employees' collective-
bargaining representative and enter into good-faith negotiations with that union about those
terms and conditions.15
…
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 20
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.
25
A statement to employees that there will be no union at the successor 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 initial terms and 30
conditions of employment. A statement that there will be no union serves the same end as a
refusal to hire employees 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.
35
Id. at 530-531 (footnotes omitted).
Relying on Advanced Stretchforming, the General Counsel argues 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 committed prior to commencing operations on January 1. I 40
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 Local 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 45
IUOE Local 18 about merging the three units into one and recognizing Local 18 as the unit’s exclusive
bargaining representative. 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 employees
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 50
recognizing Local 18 as the exclusive bargaining representative for the merged unit, when Local 18 did not
JD–08–19
25
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 5
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 Section 7 rights to 10
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 15
of employees. In fact, as of January 1, when Respondents began applying the terms of their collective-
bargaining agreement to all employees, Stein still had not 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 20
in Burns. I reject this argument. As stated, under Burns, a successor employer is not bound by the
substantive terms of a collective-bargaining agreement 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 bargain will not normally arise before it sets initial terms because it is not usually
evident whether the union will retain majority status in the new workforce until after the successor has hired 25
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 successor has “no previous relationship
whatsoever to the bargaining unit” and “no outstanding terms and conditions of employment from which a 30
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 fabricated this bargaining unit by merging three separate, appropriate units, and then
hand-picked the unit’s bargaining representative, all before it hired any employees. Furthermore, while a
traditional Burns successor is allowed to set initial terms and conditions of employment, it is not permitted 35
to negotiate those terms and conditions with a union that does not represent an uncoerced 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 unilaterally set initial terms and conditions of employment by the serious nature of its 40
unfair labor practices prior to January 1. Thus, I find Stein violated Section 8(a)(5) and (1) of the Act since
January 1 when it failed to continue the terms and conditions of employment set forth in the most-recent
Laborers Local 534 collective-bargaining agreement and unilaterally changed mandatory subjects of
bargaining, such as: hourly pension contributions to Trustees of the Ohio Laborers District Council, Ohio

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.
JD–08–19
26
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 & 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 equipment 5
and protective clothing; and definition and assignment work, conditions of work, and job classifications,
and probationary period.27
C. Stein Threatened Employees and Unlawfully Assisted or Supported IUOE Local 18
10
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 Section 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 15
employees they will be represented by that union, distributing 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 employees 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 20
IUOE Local 18 on around January 3 and in mid-February by distributing membership applications and
check off authorizations on behalf of Local 18 to employees in the laborers unit and advised them to
complete and submit those documents. I also find that Westover violated Section 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 membership application and check off authorization on 25
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.
30
D. IUOE Local 18 threatened employees and received unlawful 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 Office Services, 342 NLRB 437, 445 (2004). As stated, I find that 35
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.
40
Stein relied upon its unilateral change to the length of the probationary period--extending it from
60 calendar days to 90 days of actual work--to discharge Ken Karoly without needing to comply with the
applicable contractual procedures. Probationary 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 45
conditions of employment, and when it failed to provide Laborers Local 534 with notice and opportunity

27 As previously stated, it was Stein’s unlawful unilateral changes to the definition and assignment of work, among
others, that resulted in employees being assigned to perform cross-jurisdictional work. Respondents, 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
JD–08–19
27
to bargain prior to implementing this change to the probationary period. See Camelot Terrace, 357 NLRB
1934 (2011). An employer violates Section 8(a)(5) and (1) of the Act when it discharges 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. 5
In light of this finding, I need not address the General Counsel’s alternate argument that under Total
Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), Stein violated Section 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. 10
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 15
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.20
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 25
cleaning, utility laborer, quality 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 employment by [the Employer] 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 Act].30
4. Laborers Local 534 is and, at all material times, has been the recognized collective-bargaining
representative of the laborers unit within the meaning of Section 9(a) of the Act.
5. Since January 1, 2018, Stein has been the successor employer to TMS International, Inc. (“TMS”) 35
when it assumed the contract to perform the slag/scrap work for AK Steel at its Middletown, Ohio location
and continued to perform that work in basically unchanged form, employing as a majority of its employees
individuals who were previously employees of TMS, including a majority of the employees in the laborers
unit.
40
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 extended through mutual
agreement until December 31, 2017 (hereinafter “Laborers Local 534 collective-bargaining agreement”).
7. Stein violated Section 8(a)(1) of the Act when it informed all potential applicants from TMS, 45
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 exclusive collective-bargaining representative of the employees in the laborers unit,50
and on December 22, 2017, when it entered into a collective-bargaining agreement with IUOE Local 18,
JD–08–19
28
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 uncoerced majority of the employees in that unit, and those
employees were represented for collective-bargaining purposes by Laborers Local 534.
5
9 (a) Stein forfeited its right to set initial terms and conditions of employment for the employees in
the laborers unit by the unfair labor practices described above in paragraphs 7 and 8, and, therefore violated
Section 8(a)(5) and (1) of the Act since January 1 when it began applying the terms and conditions of the
collective-bargaining agreement referred to in paragraph 8 on the laborers unit; and
10
(b) by unilaterally changing the existing terms and conditions of employment, contained in the
collective-bargaining agreement 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 Insurance and Pension Fund; hourly contributions for Training & Apprenticeship 15
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 equipment and protective clothing; and definition and
assignment work, conditions of work, and job classifications, and probationary period.
20
10. Stein violated Section 8(a)(3) and (1) of the Act by maintaining and enforcing the union-security
and dues-check off provisions referred to above in paragraph 8 on employees in the laborers 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, 25
2018, when it failed and refused Laborers Local 534’s requests for recognition and bargaining as the Section
9(a) bargaining representative of the laborers unit.
12. Stein violated Section 8(a)(2) and (1) of the Act by granting assistance and support to IUOE Local
18 by allowing access to the jobsite to distribute, and assisting in the distribution of, membership 30
applications and dues-checkoff authorizations to 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 uncoerced majority
of the employees in that unit.
35
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 bargaining representative of the employees in the laborers unit, by entering into, 40
maintaining, and enforcing the terms of the collective-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 45
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.
JD–08–19
29
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.5
REMEDY
Having found that Stein and IUOE Local 18 have engaged in certain unfair labor practices, I shall
order them to cease and desist and to take certain affirmative action designed to effectuate the policies of 10
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 between
Stein and IUOE Local 18, including, but not limited to, the union-security and dues-checkoff provisions, 15
to the employees 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 unassisted and uncoerced majority of the employees in that unit.
20
Stein also is ordered to recognize and bargain with Laborers Local 534 as the exclusive bargaining
representative of the employees 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 25
of employment, 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 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 30
or unscheduled overtime outside of the regular or established shifts; seniority provisions; safety equipment
and protective clothing; and definition and assignment work, conditions of work, and job classifications,
and probationary period, until Stein negotiates in good faith with Laborers 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 prescribed in New Horizons, 283 NLRB 1173 (1987), compounded 35
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 backpay 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 40
Region 9 a report allocating the backpay award to the appropriate calendar year. The Regional Director 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 45
as a result of the above violations, in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216
fn. 7 (1979) and Smoke House Restaurants, 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 50
previously enjoyed. It is further ordered to make him whole for any loss of earnings and other benefits
JD–08–19
30
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 employment expenses, if any, regardless of whether those expenses 5
exceed interim earnings. Search-for-work and interim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra. It is further ordered to compensate Karoly for any
adverse 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 calendar year. 10
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). Stein also is ordered to remove from its files any
references to his unlawful discharge, and within 3 days thereafter to notify him in writing that this has been
done and that his unlawful discharge will not be used against him in any way.
Further, Stein and IUOE Local 18 shall be jointly and severally liable for reimbursing all claims by 15
present and former employees of the laborers unit who joined IUOE Local 18 on or since January 1, 2018,
for any initiation fees, periodic dues, assessments, or any other monies they may have paid or that may have
been withheld from their pay pursuant to the collective-bargaining 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.20
Stein and IUOE Local 18 is ordered to post the Board's standard Notice to Employees and Notice
to Employees and Members, 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
employees/members. I note that the Board has held that in determining whether additional remedies are 25
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 showing 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 30
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
forfeiture remedy, there is no evidence of recidivism, pervasive violations, or that employees will not be
appropriately informed by a traditional notice posting. 35
On these findings of fact and conclusions of law, and on the entire record, I issue the following
recommended:28
ORDER40
A. Stein, and its officers, agents, successors, and assigns, shall do the following:
1. Cease and desist from:
45

28 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
JD–08–19
31
(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, including recognizing it as the exclusive 5
collective-bargaining representative 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 employees in that unit.
(c) Applying the terms and conditions of employment of the collective-bargaining agreement 10
with IUOE Local 18, including its union-security and dues check-off provisions, to the employees 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.
(d) Failing to continue the terms and conditions of employment for the employees in the 15
laborers unit in effect prior to January 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 laborers unit, without providing Laborers Local 534 with prior notice and 20
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, 2018.25
(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.
30
(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 effectuate the policies of the Act.
35
(a) Withdraw recognition from IUOE Local 18 as the exclusive collective-bargaining
representative of the employees in the laborers unit.
(b) Refrain from applying the terms and conditions of employment of the collective-bargaining
agreement between Stein and IUOE Local 18, including its union-security and dues-checkoff provisions, 40
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 pursuant to the
collective-bargaining agreement between Stein and IUOE Local 18, with interest.45
(d) 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 unit and, upon request of
Laborers Local 534, rescind any or all unilaterally imposed changes and restore terms and conditions of
employment retroactively to January 1, 2018.50
JD–08–19
32
(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 5
his former job or, if that job no longer exist, to a substantially equivalent position, without prejudice 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, compensate Karoly for search-
for-work and interim employment expenses 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 10
reference to Karoly’s discharge, in accordance with the above Remedy section.
(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 Director for
Region 9, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a 15
report allocating the backpay award to the appropriate calendar year(s).
(h) Preserve and, within 14 days of a request, or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all
payroll records, social security payment records, timecards, personnel records and reports, and all other 20
records, including an electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(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 25
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 intranet or an internet site, and/or other electronic means, if Stein customarily communicates 30
with its employees by such means. Reasonable 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, 2017.35
(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.
40
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 45
collective-bargaining representative of the employees in the laborers unit at a time when IUOE Local 18

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 United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD–08–19
33
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 employees in that unit.
(b) Maintaining and enforcing its collective-bargaining agreement with Stein, including its
union-security and dues-check-off provisions, to apply to employees in the laborers unit.5
(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.
(d) In any like or related manner restraining or coercing employees in the exercise of the rights 10
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 bargaining representative of the employees 15
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.20
(c) Preserve and, within 14 days of a request or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place designated by the Board or its agents all
records, including an electronic copy of such records if stored in electronic form, necessary to analyze the
amount due under the terms of this Order.25
(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 being 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 30
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 the IUOE Local 18 customarily communicates with its members
by such means. Reasonable steps shall be taken by the IUOE Local 18 to ensure that the notices are not
altered, defaced, or covered by any other material.35
(e) 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 the
IUOE Local 18 has taken to comply
40
Dated, Washington, D.C., January 24, 2019.
_____________________________________45
ANDREW S. GOLLIN
ADMINISTRATIVE LAW JUDGE
0/mLkVol—
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT fail or refuse to recognize and bargain with Laborers’ International Union of North
America (LIUNA), Local 534 (“Laborers Local 534”) as the Section 9(a) collective-bargaining
representative of the employees the following appropriate unit:
[A]ll general labor work and clean up, laborer-foreman, lancer/jack hammer man, switch
cleaning, utility laborer, quality 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 employment by [the Employer] 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 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 representative 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 employees in that unit.
WE WILL NOT apply the terms and conditions of employment of the collective-bargaining agreement
with Stein, Inc., including its union-security and dues check-off 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.
WE WILL NOT fail to continue the terms and conditions of employment 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 opportunity 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, restraining, 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 exclusive collective-bargaining representative of
the employees in that unit
WE WILL, jointly and severally with IUOE Local 18, reimburse 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 employment for those in the above unit made or in effect on and after January 1, 2018, and,
upon request by Laborers Local 534, rescind any or all unilaterally imposed changes to terms and conditions
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 sustained 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 position, without prejudice to his seniority or any other rights or privileges
previously enjoyed, make him whole for any loss of earnings and other benefits suffered as a result of his
unlawful discharge, and compensate him for search-for-work and interim employment 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 remove from our files any reference to his
discharge and notify him, in writing, that has been done.
STEIN, INC.
(Employer)
DATED: _____________________________ BY__________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
John Weld Peck Federal Building, 550 Main Street, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACE, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 513-684-3733.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT accept recognition from Stein, Inc. as the exclusive 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’ International Union of North America (LIUNA), Local 534
(“Laborers Local 534”) is the exclusive collective-bargaining representative of those employees:
[A]ll general labor work and clean up, laborer-foreman, lancer/jack hammer man, switch
cleaning, utility laborer, quality 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 employment by [the Employer] 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 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 employees 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 employees 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, restrain, or coerce you in the exercise of the
rights guaranteed by Section 7 of the Act.
WE WILL decline recognition as the exclusive collective-bargaining 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 agreement between Stein and IUOE Local 18, with interest.
THE INTERNATIONAL UNION OF OPERATING ENGINEERS (IUOE) LOCAL 18
(UNION)
DATED: _____________________________ BY__________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
John Weld Peck Federal Building, 550 Main Street, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACE, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3733.