New Process Steel

National Labor Relations Board - Board Decisions

Sep 29, 2008

353 N.L.R.B. 254 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 25
254
New Process Steel, LP1 and District Lodge 34, Inter-
national Association of Machinists and Eero-
space Workers, AFL–CIO. Case 25–CA–30632
September 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
This case is before the Board2 on cross-motions for
summary judgment. The General Counsel seeks sum-
mary judgment on the ground that the Respondent, New
Process Steel, LP, admittedly withdrew recognition from
the Union on September 12, 2007, in violation of Section
8(a)(5) and (1), because such withdrawal was barred by a
binding collective-bargaining agreement. The Respon-
dent seeks summary judgment on the ground that it law-
fully withdrew recognition from the Union, pursuant to a
petition signed by a majority of unit members, because
the parties never reached a final binding agreement.
Thus, the outcome of this case depends on whether the
collective-bargaining agreement at issue was a binding
contract. For the following reasons, we find that the Re-
spondent violated the Act by its withdrawal of recogni-
tion.
Upon a charge filed by the Union on March 10, 2008,
the General Counsel issued a complaint on May 29,
2008, against the Respondent alleging that it violated
Section 8(a)(5) and (1) of the Act. The Respondent filed
an answer to the complaint on June 6, 2008, admitting
that it withdrew recognition from the Union but denying
that the parties reached a binding collective-bargaining
agreement.3
On July 10, 2008, the General Counsel filed a Motion
for Summary Judgment with the Board. On July 15,
2008, the Board issued an order transferring the proceed-

1 In several of the General Counsel’s submissions to the Board, in-
cluding its Motion for Summary Judgment, the Respondent is identified
as New Process Steel of Indiana, Inc. The Respondent’s correct name,
as reflected in the caption above, is New Process Steel, LP.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 The Respondent also alleged in its answer that the Union violated
Sec. 8(b)(3) by refusing to bargain in good faith. The Respondent did
not pursue this claim in its cross-motion for summary judgment or in its
opposition to the General Counsel’s motion. We therefore find that the
Respondent has abandoned this claim. We also note the General Coun-
sel’s assertion, which the Respondent does not dispute, that the Re-
gional Director dismissed the Respondent’s Sec. 8(b)(3) charge and the
dismissal was upheld on appeal.
ing to the Board and a Notice to Show Cause why the
motion should not be granted. On July 29, 2008, the
Respondent filed a Cross-Motion for Summary Judgment
and Opposition to the General Counsel’s Motion for
Summary Judgment, and on August 8, 2008, the General
Counsel filed an Opposition to the Respondent’s Cross-
Motion.
Ruling on the Motion and Cross-Motion for Summary
Judgment4
In New Process Steel, LP, 353 NLRB 111 (2008), the
Board found that the Respondent and the Union reached
a binding collective-bargaining agreement, effective Au-
gust 12, 2007, and that the Respondent unlawfully repu-
diated that agreement on September 11, 2007. The Re-
spondent admits that it withdrew recognition from the
Union on September 12, 2007, an act barred by the par-
ties’ binding contract. Accordingly, we grant the Gen-
eral Counsel’s Motion for Summary Judgment, and we
find, as a matter of law, that the Respondent unlawfully
withdrew recognition from the Union on September 12,
2007, in violation of Section 8(a)(5) and (1). We also
deny the Respondent’s Cross-Motion for Summary
Judgment.
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondent admits, and we
find that at all material times New Process Steel, LP, has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The
complaint alleges, the Respondent admits, and we find
that the Union at all material times has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Contract Case
The Union was certified as the exclusive bargaining
representative for a unit of the Respondent’s employees
on August 25, 2006. On August 9, 2007, after 11 months
of contract negotiations, the Union accepted and signed
the entire proposed agreement. The Respondent, how-
ever, stated that it would not sign the agreement until it
was ratified. On August 12, 2007, the Union ratified the
contract according to its established internal procedures.5

4 Both parties agree that there are no substantial and material issues
of fact warranting a hearing.
5 According to its established procedures, the Union presents the
contract to unit employees, who vote for or against the contract by
secret ballot. If a majority of unit members votes in favor of the con-
tract, it is ratified. If a majority votes against the contract, the Union
conducts a secret-ballot strike vote. If the strike vote does not carry by
a 2/3 majority, the contract is deemed accepted. Here, a majority of
NEW PROCESS STEEL 255
The Union then informed the Respondent that the agree-
ment was accepted, and the Respondent signed it.
In the following weeks, the Respondent learned that
the contract was not accepted by a majority vote of unit
members. On September 11, 2007, the Respondent in-
formed the Union by letter that because a majority of
bargaining unit members voted against the agreement, it
was never ratified, and thus the parties never reached a
binding contract. The Respondent therefore refused to
recognize or honor the contract’s provisions.
The Union filed an unfair labor practice charge alleg-
ing that the Respondent unlawfully repudiated the con-
tract. We adopted the judge’s findings that the Respon-
dent did not have standing to dispute the Union’s ratifi-
cation procedures, the parties reached a binding agree-
ment, and thus the Respondent violated Section 8(a)(5)
and (1) by repudiating that agreement.6
B. Withdrawal of Recognition
On September 12, 2007, the day after the Respondent
repudiated the collective-bargaining agreement, the Re-
spondent informed the Union that it had received a peti-
tion signed by a majority of bargaining unit members
disavowing their support for the Union, and thus it was
withdrawing recognition from the Union.7 It has long
been settled that contracts of definite duration for terms
up to 3 years will bar an election for their entire period.
See General Cable Corp., 139 NLRB 1123, 1125 (1962).
Moreover, the Supreme Court has confirmed that, under
Board precedent, a union is entitled to a conclusive pre-
sumption of majority status during the term of any col-
lective-bargaining agreement up to 3 years. Auciello
Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996).
Thus, the Respondent unlawfully withdrew recognition
from the Union during the term of a binding contract.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of the employees in the unit,
and has thereby engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices by withdrawing recognition
from the Union, we shall order it to cease and desist and

unit members voted against the contract, but they failed to carry the
strike vote by a 2/3 majority. Thus, the contract was accepted.
6 See New Process Steel, supra.
7 The validity of the employees’ petition is not in dispute.
to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, we shall order the
Respondent to recognize and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, New Process Steel, LP, Butler, Indiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition during the term of a col-
lective-bargaining agreement with District Lodge 34,
International Association of Machinists and Aerospace
Workers, AFL–CIO, as the exclusive collective-
bargaining representative of the employees in the follow-
ing unit:
All full-time and part-time production and maintenance
employees employed by Respondent at its Butler, Indi-
ana facility, but excluding all office clerical employees,
professional employees, sales representatives, manage-
rial employees, team leaders, guards, supervisors as de-
fined by the Act, and all other employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively and
in good faith with the Union as the exclusive collective-
bargaining representative of the employees in the unit set
forth above.
(b) Within 14 days after service by the Region, post at
its facility in Butler, Indiana, copies of the attached no-
tice marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 25, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD256
rent employees and former employees employed by the
Respondent at any time since September12, 2007.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board had found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT withdraw recognition from District
Lodge 34, International Association of Machinists and
Aerospace Workers, AFL–CIO, as the exclusive collec-
tive-bargaining representative of the employees in the
following unit:
All full-time and part-time production and maintenance
employees employed by us at our Butler, Indiana facil-
ity, but excluding all office clerical employees, profes-
sional employees, sales representatives, managerial
employees, team leaders, guards, supervisors as defined
by the Act, and all other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the above unit.
NEW PROCESS STEEL, LP