OUTOKUMPU STAINLESS USA, LLC f/k/a THYSSENKRUPP STAINLESS USA, LLC

National Labor Relations Board - Administrative Judge Opinions

Feb 29, 2016

15-CA-070319 (N.L.R.B. Feb. 29, 2016)

JD(SF)–09–16
Calvert, Alabama
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES, SAN FRANCISCO BRANCH OFFICE
OUTOKUMPU STAINLESS USA, LLC
f/k/a THYSSENKRUPP STAINLESS USA, LLC
and Cases 15–CA–070319
15–CA–073053
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
AFL–CIO, CLC
Kevin McClue, Esq.,
for the General Counsel.
John A. Lambremont, Esq. (Littler Mendelson, P.C.),
for the Respondent Company.
Brad Manzolillo,
for the Charging Party Union.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. The amended complaint in
this proceeding alleges that the Respondent Company failed to comply with the terms of an April
30, 2012 NLRB informal settlement of the alleged unfair labor practices in the above cases.
Specifically, the General Counsel alleges that the Company breached the settlement’s notice-
posting provisions by emailing and posting a letter or “side-notice” to the employees before and
during the required 60-day notice-posting period that undermined the effectiveness of the official
NLRB notice. The General Counsel contends that, pursuant to the noncompliance provisions of
the settlement, it is therefore appropriate to issue a decision finding that the Company has
defaulted on the terms of the settlement and ordering it to repost the NLRB notice.
The Company denies that emailing and posting the letter/side-notice violated the terms of
the settlement. Accordingly, it contends that a default judgment under the settlement’s
noncompliance provisions is inappropriate.
On November 16, 2015, the parties filed a joint motion and stipulation of facts and
exhibits, requesting that the noncompliance and default allegations and issues be decided without
a hearing based on the stipulated record. By order dated the following day, the joint motion was
granted and the stipulation of facts and exhibits was approved. Each of the parties thereafter
timely filed briefs on or before December 22, 2015.
Having carefully considered the briefs and the entire stipulated record, for the reasons set
forth below I find that the Company’s distribution and posting of the letter/side-notice
JD–09–16
2
constituted noncompliance with the notice provisions of the settlement and that a default
judgment and an order requiring reposting of the NLRB notice are therefore appropriate.
I. THE ALLEGED NONCOMPLIANCE WITH THE SETTLEMENT
5
A. Factual findings
On May 17, 2010, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial Workers International Union, AFL–CIO (United Steelworkers) filed a petition
to represent the production and maintenance employees at the Company’s facility in Calvert, 10
Alabama. Approximately 16 months later, on September 11, 2011, the Regional Director
approved a stipulated election agreement setting the election for December 13 and 14.
However, beginning shortly before the scheduled election, the Union filed charges
alleging that the Company had committed a number of unfair labor practices in violation of 15
Section 8(a)(1) of the National Labor Relations Act. Among other things, the charges alleged
that, on various dates between July and December 2011, the Company unlawfully threatened
employees that they would lose everything and that collective bargaining would start from zero if the
Union was voted in; surveilled and created the impression of surveilling employees; changed and
disparately enforced its workplace discussion policy; promulgated an overbroad written no-20
discussion policy; and disciplined two employees, Mack Royster and John Dees, for violating the
overbroad no-discussion policy. In light of these pending charges, the previously scheduled election
was “blocked,” i.e. postponed and held in abeyance.1
On April 30, 2012, prior to issuance of a formal complaint, the parties executed, and the 25
Regional Director approved, a bilateral settlement of the foregoing charge allegations. The
settlement was informal in nature, i.e., it did not provide for issuance of formal Board order, and did
not contain either an admission or a nonadmission clause.
Under the terms of the settlement, the Company agreed to post an official NLRB notice to 30
employees stating as follows:
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;35
• 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.

1 See generally Mark Burnett Productions, 349 NLRB 706, 707 (2007) (“[E]mployees . . .
have the right to an election that reflects their untrammeled views. In order to effectuate this
right, the Board's blocking charge procedures fulfill its longstanding policy that elections should
be conducted in an atmosphere free of any type of coercive behavior that could affect employee
free choice sufficiently to sway the outcome of the election.”). See also NLRB Casehandling
Manual, Part Two, Representation Proceedings, secs. 11730–11731 (describing the Board’s
blocking-charge policy, procedures, and exceptions in more detail).
JD–09–16
3
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT threaten you with loss of benefits or tell you that you will lose
everything and start from zero if you choose to be represented by or support a
Union.5
WE WILL NOT make it appear to you that we are watching out for your Union
activities.
WE WILL NOT watch you in order to find about [sic] your Union activities.10
WE WILL NOT tell you that you cannot talk about or discuss the Union while on
working time while we allow you to talk about or discuss other subjects while on
working time and WE WILL repeal the rule promulgated in a written discipline
on that subject.15
WE WILL NOT in any like or related manner interfere with your rights under
Section 7 of the Act.
WE WILL rescind in writing any and all discipline employees received, including 20
that given to employees Mack Royster and John Dees, as a result of a rule
prohibiting discussion or talk about the Union during working hours, and WE
WILL notify all affected employees that their discipline was removed from our
files and that it will not affect them in any way in the future.
25
WE WILL allow you to discuss or talk about the Union during working hours
while we allow you to talk about or discuss other subjects while on working time.
The settlement provided that the Regional Director would send copies of the foregoing notice to the
Company; that a responsible company official would then sign, date, and immediately post the 30
notices in prominent places around the facility and on the Company’s intranet; and that the Company
would keep the notices posted for 60 consecutive days thereafter.
The Company also agreed to “comply with all the terms of the provisions of [the] Notice,”
i.e., to actually do what the notice stated it would do. Thus, among other things, the Company agreed35
to repeal the overbroad no-discussion rule, rescind in writing the discipline issued to Royster and
Dees, and notify them that the discipline had been removed and would not affect them in any way.
Finally, the Company agreed that certain default procedures would apply “in case of non-
compliance with any of the terms of [the settlement].” Specifically, the Company agreed that the 40
Regional Director would issue a complaint on the 8(a)(1) allegations; the General Counsel could
thereafter file a motion for default judgment on those allegations; the allegations would be deemed
admitted and the right to file an answer waived; the only issue would be whether the Company
defaulted on the terms of the settlement; the Board could find all the allegations to be true and issue
an order fully remedying them; and a U.S. Court of Appeals could enter a judgment enforcing the 45
Board’s order ex parte.
JD–09–16
4
As required by the settlement, the Company subsequently repealed the overbroad no-
discussion rule, rescinded the discipline issued to Royster and Dees, and notified them that it had
done so. Beginning on May 17, and for 60 days thereafter, the Company also posted the agreed-
upon NLRB notice on its main bulletin board next to the time clocks and on its intranet home
page. 5
The Company also distributed and posted its own separate letter or side-notice about the
charges and the settlement. The letter was signed by David Scheid, the Company’s vice
president of human resources, and stated as follows:
10
As many of you know, the Steelworkers Union filed a handful of unfair labor
practice charges against Stainless USA in its ongoing campaign to organize our
company. Most of the charges were filed in December 2011, just prior to the
election that was scheduled at that time. The union then used the charges to block
the election from occurring, which prevented you from exercising your right to 15
vote and have a choice.
Since the charges were filed, the Labor Board has been investigating. Some
charges were dropped by the union or dismissed, and Stainless has not been found
guilty of any of the allegations. However, due to reasons such as the inability to 20
make a determination based on the facts the agent was able to collect, the Labor
Board has determined that some of the charges should be further evaluated at a
hearing.
Unfortunately, having a hearing would only delay your opportunity to have your 25
voices heard by voting. Stainless USA has always held the opinion that you
deserve the opportunity to vote and we have done everything in our power to
move this process along since this campaign has been going on for over three
years. Consistent with that goal, although Stainless USA believes it has not
violated any laws, we agreed to resolve the remaining charges by posting a30
notice. Of the 9 charges, the union has withdrawn or the Labor Board has
dismissed 3 and the remaining 6 are resolved by the posting. There are no fines,
penalties or other monetary requirements as a result of this resolution. Plus now
there is again a chance that an election will occur, although not until some time
after the 60-day notice posting.35
If all this sounds familiar to some of you, the same thing happened in 2010, which
was the first time we tried to have your voice heard. At that time, the union filed
charges that blocked the election. The Labor Board investigated the union's
charges for months. Of the 40 charges filed in 2010, 36 were dismissed or were 40
withdrawn by the union. The Company settled the few remaining charges in order
to try to get to a vote. Unfortunately, the union filed newer charges before the
December 2011 election that kept that from happening.
We would like to point out that the Labor Board has not found the Company 45
guilty regarding the current charges. The Company believes that the charges
would have been dismissed after a hearing. By resolving the charges now,
JD–09–16
5
however, the election can be pushed forward once again provided the union does
not file new charges.
We will continue as always to keep you informed and we look forward to working
together to build our company and get into full production with the Melt Shop.5
The Company emailed the foregoing letter to the employees on May 7, a few days before
the Region mailed the official NLRB notices to the Company. The Company also posted the
letter on the main bulletin board next to the time clocks the same day, and continued to post the
letter there in close proximity to the NLRB notice throughout the 60-day posting period.10
The Union initially notified the Region of the Company’s letter on May 10. It also
subsequently filed a formal charge with the Region on July 30 alleging that the Company’s letter
“unlawfully misrepresented NLRB procedures, thereby creating the impression that it can engage
in unlawful conduct without penalty.” 15
On September 19 or 20, the Region advised the Company by telephone that the
dissemination of the letter constituted noncompliance with the settlement and diminished its
remedial effect.2 A few months later, on November 14, the Region also informed the Company
by email what remedial steps were required to become compliant. The Region stated that the 20
Company must repost the NLRB notice for another 60 days with the following additional
language:
This notice is being reposted and emailed to you because our May 7, 2012 email
to you, which issued just prior to the original Notice Posting required in the 25
settlement agreement we reached with the National Labor Relations Board, did
not properly represent the findings of the Board or the purpose of the information
communicated to you in the Notice.
WE WILL NOT say negative things to you about the Union in an effort to 30
discourage you from supporting or assisting the Union.
WE WILL NOT post and/or distribute anything to you which changes or lessens
in any manner Notices posted because of an Order from or an agreement with the
National Labor Relations Board.35
By email dated November 29, the Company advised the Region that it was unwilling to
take these additional remedial steps. In subsequent emails dated December 6 and 14, the
Company explained that it was unwilling to do so because: (1) the Union did not file its charge
until well after the posting period had ended; (2) the Company disagreed with the Region’s 40
position that the letter constituted noncompliance with the settlement; (3) the Region took an
inordinately long time to notify the Company of the proposed remedial steps to remedy the
alleged noncompliance; and (4) the additional language proposed by the Region was
unconventional, inappropriate, and overbroad.

2 Apparently for this reason, the Region continued to hold the election in abeyance. And it
remains blocked to this day.
JD–09–16
6
By email dated December 14, the Region notified the Company that, if it was willing to
repost the original NLRB notice for 60 days, the Region “would hold off on [the] additional
language for now.” However, by email dated December 27, the Company informed the Region
that it was likewise unwilling to repost the original notice, primarily for reasons (2) and (3)
above.5
Approximately 3 months later, on March 27, 2013, the Region formally notified the
Company that the letter it had posted and emailed to employees “constituted an unlawful side
notice” that “served to undermine the effect of the Board notice” and “defeat[ed] the intent and
purpose of the informal settlement.” The Region advised the Company that if it did not10
“remedy” this “breach” of the informal settlement within the next 14 days by reposting the
NLRB notice for an additional 60 days as previously discussed, the Region might issue a
complaint and thereafter file a motion for default judgment pursuant to the settlement’s
noncompliance provisions.
15
The Company did not thereafter repost the NLRB notice. Accordingly, on June 28, 2013,
the Regional Director issued a complaint and notice of hearing alleging that the Company had
violated Section 8(a)(1) of the Act as set forth in the Union’s original unfair labor practice
charges.3
20
On July 11, the Company filed an answer denying that it violated the Act as alleged and
asserting various defenses, including that the complaint was barred by the settlement. The
following month, on August 15, 2013, the Company also filed a motion for summary judgment
with the Board. The motion argued that the complaint should be dismissed because the
Company had neither failed to comply with the settlement nor engaged in postsettlement 25
unlawful conduct. However, by unpublished order dated November 22, 2013, the Board denied
the motion, stating that the Company had “failed to establish that it is entitled to judgment as a
matter of law” (2013 WL 6157179).
Approximately 10 months later, on September 29, 2014, the General Counsel filed a 30
motion for default judgment with the Board pursuant to the noncompliance provisions of the
settlement. However, by order dated April 22, 2015, the Board denied this motion as well,
stating that “genuine issues of material fact exist which prevent a final determination as to
whether the terms of the settlement agreement have been breached” (362 NLRB No. 71).
35
The Region issued the instant amended complaint about 4 months later, on August 17,
2015. The amended complaint sets forth the same 8(a)(1) allegations set forth in the original
complaint. It also specifically alleges that the Company failed to comply with the terms of the
April 30, 2012 settlement; that under the agreed upon terms of the settlement the only issue that
can be presented in this proceeding is whether the Company thereby defaulted on the terms of 40

3 The complaint did not allege that the Company’s letter/side-notice itself violated the Act.
Indeed, the complaint did not specifically mention the settlement or the letter/side-notice.
JD–09–16
7
the settlement; and that as part of the remedy the Company should be ordered to repost the
NLRB notice along with the settlement documents.4
On August 19, the Company filed an answer. The answer again denies that the Company
violated Section 8(a)(1) of the Act as alleged. It also denies that the Company breached and 5
defaulted on the settlement, and that it has any obligation to repost the NLRB notice with the
settlement. Finally, it also again asserts various defenses, including that the amended complaint
is barred by the settlement.
A few days later, on August 21, the General Counsel filed a motion in limine with the 10
Judges Division requesting "an immediate ruling" (1) that the hearing will be limited to whether
the Company breached and defaulted on the terms of the settlement by emailing and posting the
letter with the NLRB notice; and (2) that the Company's July 11, 2013 and August 19, 2015
answers to the initial and amended complaints must therefore be stricken inasmuch as the
Company waived the right to file an answer under the terms of the settlement's noncompliance15
provisions.
By order dated August 31, 2015, I granted in part and denied in part the General
Counsel’s motion. Specifically, consistent with the complaint and theory of the case, I granted
the General Counsel’s motion to limit the hearing to the settlement noncompliance and default 20
issues. I ruled that, because the General Counsel was not seeking to set aside the settlement, the
underlying 8(a)(1) allegations themselves would be neither litigated nor decided in this
proceeding; rather, the complaint would rise or fall based solely on how the settlement
noncompliance and default issues were decided.5 However, consistent with the Board’s April
22, 2015 order,6 I denied the General Counsel’s motion to strike the Company’s answers before a 25
determination had been made on those issues.

4 Like the original complaint, the amended complaint does not allege that the Company’s
letter/side-notice constituted an independent 8(a)(1) violation. Rather, as indicated, it alleges
only that the letter/side-notice breached the settlement.
5 As noted in my order (GC Exh. 1(jj)), the Regional Director apparently decided at the time
she issued the original complaint to set aside the settlement and litigate the merits of the unfair
labor practice allegations. See fn. 2 of the Board's November 22, 2013 order denying the
Company’s motion for summary dismissal (noting that the General Counsel's opposition to the
motion stated that "[t]he Regional Director of Region 15 determined not to file a motion for
Default Judgment and, instead, issued a complaint and scheduled a hearing on the merits of the
allegations," and that "the Region plans to amend the complaint to explicitly set aside the
informal settlement."). See also GC Exh. 1(m) at 3 n. 1. However, no such amendment ever
issued. Instead, as indicated above, the General Counsel subsequently filed a motion with the
Board for a default judgment on the original complaint. And after that motion was denied on the
ground it raised factual issues, the Regional Director issued an amended complaint that explicitly
and exclusively alleged that the Company's noncompliance defaulted on the terms of the
settlement.
6 See 362 NLRB No. 71, slip op. at 2 fn. 2 (denying the General Counsel’s motion to strike
the Company’s July 11, 2013 answer “without prejudice to the General Counsel raising the
motion before the judge, if appropriate, after the judge rules on the alleged breach of the
settlement agreement.”) (emphasis added).
JD–09–16
8
No party filed an appeal of my foregoing rulings with the Board. Rather, as indicated
above, the parties thereafter filed a joint motion requesting that I decide the noncompliance and
default issues without a hearing based on a stipulated record.
B. Analysis5
1. Whether the Company’s letter breached the settlement
As indicated by the General Counsel, the Board has found in a number of cases that the
posting or distribution of a letter or side-notice to employees along with the official settlement 10
notice constituted noncompliance with the settlement. See Gould, Inc., 260 NLRB 54, 57–58
(1982); Bingham-Williamette Co., 199 NLRB 1280, 1282 (1972); Arrow Specialties, Inc., 177
NLRB 306 (1969), and Bangor Plastics, Inc., 156 NLRB 1165, 1167 (1966), enf. denied 392
F.2d 772 (6th Cir. 1967). See also Postal Workers Local 735 (USPS), 340 NLRB 1363, 1364
(2003); and News-Texan, Inc., 174 NLRB 1035 (1969), enfd. 422 F.2d 381 (5th Cir. 1970).15
Further, in the Gould case, the Board made this finding under circumstances essentially
indistinguishable from those here. In that case, the union filed charges alleging that the
respondent employer engaged in various preelection 8(a)(1) violations, including maintaining an
overbroad no-solicitation rule and disciplining three employees under that rule; the filing of the 20
charges blocked the scheduled representation election; the parties entered into an informal
settlement that required the employer to post an official NLRB notice and to rescind the
overbroad rule and discipline issued to the three employees; and the employer thereafter did so.
However, the day before posting the NLRB notice, the employer gave its own notice to each
day-shift employee as they left for the work day. The notice stated:25
As I announced this morning the Company and the National Labor Relations
Board, on Monday, settled all the outstanding unfair labor practice charges which
were blocking the election. We entered into this settlement in order to assure you,
our employees, your right to vote in the union election.30
The major provisions of this settlement are as follows:
1. The Company did not admit to any violation of the law.
35
2. The Company was not found guilty of any violation of the law.
3. The election will be held on March 27, 1980.
4. We have obtained assurances from the NLRB that they will not permit the 40
[union] to block this new election.
5. We will post a Notice to Employees which simply states that we will not
violate the labor law in the future. (This, of course, is what we have always said!!)
45
I am sure that in view of the [union’s] actions over the past 4 months, everyone
clearly understands that the union will deny employees their most basic right to
JD–09–16
9
vote in order to satisfy their own selfish ends. On March 27th all employees will
finally have the opportunity to reject—once and for all—these outside agitators.
Thank you very much for your support during these past months and I hope that
you will join with the vast majority of our employees who will VOTE NO next
Thursday.5
Later that same evening, after the NLRB notice had been posted, a revised version of the notice
was likewise distributed to the employees working on the night shift. The revised version was
the same as the original except that it changed paragraph 4 to read, “We have obtained
assurances from the [union] that they will not block this new election.” The revised notice was 10
also distributed to the day-shift employees the next morning.
In agreement with the General Counsel, the judge found that the employer’s notice
breached the terms of the settlement. The judge relied on the following circumstances: (1) the
employer’s notice stressed that the company had neither admitted nor been found to have 15
violated the Act; (2) the notice falsely portrayed the NLRB notice as simply stating that the
company would not violate the labor law in the future, ignoring the portion of the notice
requiring rescission of the no-solicitation rules and the discipline to the three employees; (3) the
notice was distributed to employees before the NLRB notice was posted and would necessarily
influence their view of the NLRB notice when they had an opportunity to read it; and (4) the 20
notice unfairly accused the union of attempting, by filing the 8(a)(1) charges, to deny employees
their right to vote, and indicated that the employer had settled the charges to restore that right.7
All of these same circumstances are present here. As indicated above, the Company’s
letter: (1) stated that the Company had “not been found guilty of any of the allegations” and 25
“believes it has not violated any laws”; (2) incorrectly indicated that the Company had “agreed to
resolve the . . . charges by posting a notice,” ignoring the additional provisions requiring it to
repeal or rescind the overbroad no-discussion rule and the discipline issued to Royster and Dees; (3)
was both emailed and posted over a week before the NLRB notice was posted, and continued to be
posted next to the NLRB notice throughout the required 60-day posting period; and (4) accused the 30
Union of “us[ing] the charges to block the election from occurring” and to “prevent[] you from
exercising your right to vote and have a choice,” and indicated that the Company settled the
charges because it believed employees “deserve the opportunity to vote.”
The Company argues (Br. 20) that “more recent” Board decisions establish that its 35
letter/side-notice was permissible, citing Deister Concentrator Co., 253 NLRB 358 (1980); and
Littler Diecasting Corp., 334 NLRB 707 (2001). However, as indicated above, Gould issued in
1982, 2 years after Deister. Further, both Deister and Littler are plainly distinguishable. In both
cases, the Board emphasized the “significant” additional affirmative remedial obligations the
respondents undertook in addition to posting the NLRB notice. In Deister, these additional 40
obligations included:

7 The Board affirmed the judge’s foregoing findings. The General Counsel also alleged in
Gould that the employer’s notice violated Section 8(a)(1) of the Act. However, the judge
rejected this allegation on the ground that the notice did not contain any threats or promises and
was therefore protected by Section 8(c) of the Act. The Board adopted this finding as well.
JD–09–16
10
paying more than $25,000 in backpay to alleged discriminatees, making
employees whole for 6-1/2 hours of holiday pay, offering five strikers who had
not been reinstated immediate and full reinstatement to their former jobs, placing
other employees on a preferential hiring list to be offered the first available
positions for which they were qualified, offering four employees immediate and5
full reinstatement to their jobs, and placing six strikers on a preferential hiring list
subject to Respondent's right to deny their reinstatement if it were subsequently
ascertained that they had engaged in serious picket line misconduct. [253 NLRB
at 359 & n.5.]
10
And in Littler, the settlement required the employer, not only to post a notice, restore work rules,
and expunge discipline from employee files, but also to pay backpay to a suspended employee
and to bargain with the union. Moreover, the judge and the Board expressly distinguished Gould
on the grounds that, unlike in that case, the employer’s letter did not contain any misstatements,
preempt the Board's notice, gloss over the required remedial actions, and disparage or blame the 15
union. 334 NLRB at 708, 710–711.8
2. Whether a default judgment is appropriate
As indicated by the Company, in all of the above cases, the General Counsel sought to set
aside the settlement and litigate the merits of the underlying unfair labor practice allegations. In 20
none of them did the General Counsel seek a default judgment as a result of the respondent’s
noncompliance with the notice provisions of the settlement. The Company argues that this
distinction is important, as a default judgment is an “extraordinary remedy” that “depriv[es] the
respondent of the right to defend itself against the settled allegations.” It argues that the Board
should therefore enforce default language only where the respondent has “clearly and 25
unmistakably waived this right under the specific circumstances claimed to give rise to the
default,” i.e., the default language should only be applied where the respondent has violated the
“express terms of the settlement agreement.” (Br. 13 n. 5, 27–28.) Accordingly, as the
settlement here did not expressly prohibit the Company from posting and distributing a
letter/side-notice, the Company argues that a default judgment is unwarranted. 30
The Company’s argument has some surface appeal and neither the General Counsel nor
the Union address it in their briefs.9 However, the argument fails to withstand scrutiny for
several reasons. First, there is no indication in any of the prior cases that the settlements even

8 The judge and the Board in Littler also noted that the employer only posted the letter for 1
week of the 60-day notice-posting period. Here, in contrast, the Company both emailed and
posted the letter before posting the NLRB notice, and continued to post the letter throughout the
60-day posting period.
9 Cf. Bartlett Heating & Air Conditioning, Inc., 339 NLRB 1044, 1046 (2003) (declining to
order a full remedy in a default judgment proceeding in the absence of clear and unambiguous
language in the noncompliance clause authorizing such a remedy). The Company made the
same arguments against a default judgment in its unsuccessful August 2013 motion for summary
judgment (GC Exh. 1(j)). However, as noted above (fn. 5) the General Counsel’s opposition to
that motion stated that a default judgment was not being sought at that time, and the Board
specifically mentioned this in denying the Company’s motion.
JD–09–16
11
contained default provisions, much less that it would have been inappropriate to apply the
provisions under the circumstances. Here, as indicated above, the settlement does contain such a
provision, stating that a default judgment may be issued in the event of “non-compliance with
any of the terms” of the agreement.
5
Second, like all contracts, settlement agreements include an implied covenant of good
faith and fair dealing, i.e., an implied promise that the respondent will perform its stipulated
remedial obligations in a manner consistent with the spirit of the agreement and the reasonable
expectations of the other parties.10 Nothing in the settlement or the conduct of the Union here
indicates that it agreed to exclude or waive this implied term or that the default provisions would 10
not apply if the Company failed to comply with it.11
Third, as discussed above, the Board in the Gould case found noncompliance under
strikingly similar circumstances. Thus, the Company had clear notice that its letter/side-notice
would be considered noncompliance with the settlement’s terms.15
Finally, in accordance with the settlement, the Regional Director provided the Company
with a sufficient opportunity to cure its noncompliance by reposting the notice before the
General Counsel sought a default judgment.
20
Accordingly, pursuant to the noncompliance provisions of the settlement, the Company
waived its right to file an answer to the unfair labor practice allegations in the amended
complaint, and those allegations are deemed admitted and are found to be true. See generally
Hospital Parking Management, 363 NLRB No. 101 (2016); and Shawnee Ready-Mix Concrete
& Asphalt Co., 363 NLRB No. 88 (2015).25
II. THE ALLEGED UNFAIR LABOR PRACTICES
The following facts are deemed admitted and are found to be true pursuant to the
noncompliance provisions of the settlement for the reasons stated above.30
The Company is engaged in the production and the nonretail sale of stainless steel. In
conducting its operations annually, the Company sold and shipped goods valued over $50,000
from its Calvert, Alabama facility directly to points outside Alabama. At all relevant times, the

10 With respect to contracts generally, see Restatement (Second) of Contracts § 205 (1981);
Centex Corp. v. U.S., 395 F.3d 1283, 1304 (Fed. Cir. 2005); and Tidmore Oil Co. v. BP Oil Co.,
932 F.2d 1384, 1391 (11th Cir. 1991). With respect to settlement agreements specifically, see,
e.g., Neilson v. Beck, 103 F.3d 139 (9th Cir. 1996); Stoney Glen, LLC v. Southern Bank & Trust
Co., 944 F. Supp. 2d 460, 462 (E.D. Va. 2013); Compass Bank v. Eager Road Associates, LLC,
922 F. Supp. 2d 818, 826 (E.D. Mo. 2013); and Kedra v. Nazareth Hospital, 868 F. Supp. 733,
737 (E.D. Pa. 1994).
11 As noted above, the Region initially decided not to seek a default judgment under the terms
of the settlement’s noncompliance provisions, but to instead set aside the settlement. However,
the Company does not argue that this is sufficient by itself to establish an implied waiver of the
legal right to seek a default judgment under the terms of the settlement’s noncompliance
provisions. In any event, I find that it is insufficient to do so.
JD–09–16
12
Company has therefore been an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.12
About July 2011, the Company engaged in surveillance of employees’ union activities by
taking pictures of the distribution of union leaflets to employees at the entrance and exit gate. 5
Since about the same date, the Company prohibited employees from talking about the Union
during working time while permitting employees to talk about other non-work subjects.
About September 10, 2011, the Company orally promulgated and has since maintained a rule 10
prohibiting employees from discussing the Union during working hours.
About the same date, the Company disciplined employees John Dees and Mack Royster
because they violated the foregoing rule and to discourage employees from engaging in these or other
concerted activities. 15
About December 6, 2011, the Company threatened employees by telling them they would
lose everything and that collective bargaining would start from zero if they selected the Union as
their bargaining representative.
20
CONCLUSIONS OF LAW
1. By posting and emailing its own letter to employees before and during the 60-day
period for posting the NLRB notice as described in Section I above, the Company undermined
the effectiveness of the NLRB notice and thereby failed to comply with the notice-posting 25
provisions of the parties’ April 30, 2012 informal settlement of the Union’s unfair labor practice
charges and triggered the noncompliance/default provisions of the settlement.
2. By the conduct described in Section II above, the Company has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of 30
the Act.
REMEDY
As indicated above, the General Counsel requests that the Company be ordered to repost 35
the NLRB notice for 60 days. Additionally, given the Company’s statements about the
settlement in its previous letter, and the fact that the letter was emailed to employees as well as
posted, the General Counsel requests that the Company be ordered to (1) post the settlement
itself along with the NLRB notice; and (2) email the NLRB notice to its employees on the same
day it is reposted.40
The foregoing remedies are reasonably and appropriately tailored to the circumstances.
Contrary to the Company’s contention (Br. 11 n. 4), the NLRB notice has not been rendered
“obsolete” by either the previous posting or the passage of time. As discussed above, the

12 These jurisdictional facts and allegations were expressly admitted in the Company’s
answer to the amended complaint.
JD–09–16
13
previous posting was tainted by the Company’s letter/side-notice, and the Union’s election
petition remains blocked as a result. Thus, reposting is “precisely what is needed.” Postal
Workers Local 735, 340 NLRB at 1365. Further, as indicated by the General Counsel, it is
unfortunately not unusual for several years to pass between the unfair labor practices and
issuance of a final Board or court order. 5
The General Counsel also requests “any other relief . . . deem[ed] appropriate to remedy
the [Company’s] noncompliance with the settlement.” Consistent with the Board’s orders in
similar cases, an additional provision will therefore be added to the NLRB notice stating that the
Company will not post, email, or otherwise distribute any letters or notices to employees that 10
modify, alter, or undermine the effectiveness of the official notices posted pursuant to orders or
agreements with the NLRB. See Gould, 260 NLRB at 66 and cases cited there at n. 24.
The noncompliance provisions of the settlement state that the Board may also issue an
order “providing a full remedy for the violations found as is appropriate to remedy such 15
violations.” Such a full remedy would normally include an enforceable order requiring the
Company to cease and desist from violating the Act in the same or any like or related manner,
and to take certain other affirmative action in addition to posting a notice. However, the General
Counsel has not requested such additional remedies. Therefore, they will not be included in the
order. See Midwestern Video Personnel, Inc., 363 NLRB No. 120, slip op. at 2–3 (2016); and 20
Serenity Dental Spa, P.A., 362 NLRB No. 116, slip op. at 3 (2015).
Accordingly, based on the above findings of fact and conclusions of law and on the entire
record, I issue the following recommended order.13
25
ORDER
The Respondent, Outokumpu Stainless USA, LLC f/k/a Thyssenkrupp Stainless USA,
LLC, Calvert, Alabama, its officers, agents, successors, and assigns, shall take the following
affirmative action necessary to effectuate the policies of the Act.30
1. Within 14 days after service by the Region, post at its Calvert, Alabama facility copies
of the notice and the settlement attached hereto and marked as “Appendix A” and “Appendix B,”
respectively.14 Copies of the notice provided by the Regional Director for Region 15, after being
signed by the Respondent’s authorized representative, shall be posted by the Respondent next to 35
the settlement for 60 consecutive days in conspicuous places including all places where notices
to employees are customarily posted. In addition to physical posting of paper copies, the notice
and the settlement shall be posted on the Respondent’s intranet. Reasonable steps shall be taken

13 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
14 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–09–16
14
by the Respondent to ensure that the notice and the settlement are not altered, defaced, or
covered by any other material.
2. On the same day that the signed notice described above is posted, email the signed
notice to the last known email address of all current employees and former employees employed 5
by the Respondent at its Calvert, Alabama facility at any time since July 1, 2011. As above,
reasonable steps shall be taken by the Respondent to ensure that the emailed notice is not altered,
defaced, or covered by any other material.
3. Within 21 days after service by the Region, file with the Regional Director a sworn 10
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. February 29, 2016
15

APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board (NLRB) has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your 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 threaten you with loss of benefits or tell you that you will lose everything and
start from zero if you choose to be represented by or support a Union.
WE WILL NOT make it appear to you that we are watching out for your Union activities.
WE WILL NOT watch you in order to find out about your Union activities.
WE WILL NOT tell you that you cannot talk about or discuss the Union while on working time
while we allow you to talk about or discuss other subjects while on working time, and WE
WILL repeal the rule promulgated in a written discipline on that subject.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL NOT post, email, or otherwise distribute any letters or notices to employees that
modify, alter, or undermine the effectiveness of the official notices posted pursuant to orders or
agreements with the NLRB.
WE WILL rescind in writing any and all discipline employees received, including that given to
employees Mack Royster and John Dees, as a result of a rule prohibiting discussion or talk about
the Union during working hours, and WE WILL notify all affected employees that their
discipline was removed from our files and that it will not affect them in any way in the future.
WE WILL allow you to discuss or talk about the Union during working hours while we allow
you to talk about or discuss other subjects while on working time.
OUTOKUMPU STAINLESS USA, LLC
f/k/a THYSSENKRUPP STAINLESS USA, LLC
(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.
600 South Maestri Place, 7th Floor, New Orleans, LA 70130-3413
(504) 589-6361, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge's decision can be found at www.nlrb.gov/case/15-CA-070319 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, DEFACED, 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, (504) 589-6389.
APPENDIX B
UNITED STATES GOVERNMENT
NATIONAL LABOR RELATIONS BOARD
SETTLEMENT AGREEMENT
IN THE MATTER OF
ThyssenKrupp Stainless USA, LLC Case Nos: 15-CA-070319
15-CA-073053
Subject to the approval of the Regional Director for the National Labor Relations Board, the
Charged Party and the Charging Party HEREBY AGREE TO SETTLE THE ABOVE
MATTER AS FOLLOWS:
POSTING OF NOTICES — After the Regional Director has approved this Agreement, the
Regional Office will send copies of the approved Notices to the Charged Party in English and in
additional languages if the Regional Director decides that it is appropriate to do so. A responsible
official of the Charged Party will then sign and date those Notices and immediately post them in
prominent places around its facility, including all places where the Charged Party normally posts
notices to employees. The Charged Party will keep all Notices posted for 60 consecutive days
after the initial posting.
INTRANET POSTING— The Charged Party will also post a copy of the Notice on its intranet
and keep it continuously posted there for 60 consecutive days from the date it was originally
posted. The Charged Party will send an email to the Region's Compliance Officer at
Debra.Warner@n1rb.gov with a link to the electronic posting location on the same day as the
posting. If passwords or other log-on information is required to access the electronic posting, the
Charged Party agrees to provide such access information to the Region's Compliance Officer.
COMPLIANCE WITH NOTICE — The Charged Party will comply with all the terms and
provisions of said Notice.
SCOPE OF THE AGREEMENT — This Agreement settles only the following allegations in
the above-captioned cases, and does not settle any other cases or matters:
1. Since on or about July 2011, and at all times thereafter, the Employer, through
Manager Tom Brennan, unlawfully changed its workplace discussion policy and enforced it
disparately.
2. In or about August and September 2011, and at times thereafter, the Employer, through
its officers, agents, and representatives, unlawfully engaged in surveillance and creating the
impression of surveillance.
3. On September 10, 2011, the Employer, by and through Ruben Rangle, promulgated, in
writing, an overly broad no-discussion during working hours policy.
4. On September 10, 2011, the Employer disciplined employees John Dees and Mack
Royster for violating an overly broad no-discussion during working hours policy.
5. On or about December 6, 2011, the Employer, through Manager Tom Brennan,
unlawfully threatened that employees would lose everything and that collective bargaining
would start from zero if the Union was voted in.
It does not prevent persons from filing charges, the General Counsel from prosecuting
complaints, or the Board and the courts from finding violations with respect to matters that
happened before this Agreement was approved regardless of whether General Counsel knew of
those matters or could have easily found them out. The General Counsel reserves the right to use
the evidence obtained in the investigation and prosecution of the above-captioned cases for any
relevant purpose in the litigation of this or any other cases, and a judge, the Board and the courts
may make findings of fact and/or conclusions of law with respect to said evidence. By
approving this Agreement the Regional Director withdraws any Complaints and Notices of
Hearing previously issued in the above cases, and the Charged Party withdraws any answers
filed in response.
PARTIES TO THE AGREEMENT — If the Charging Party fails or refuses to become a party
to this Agreement and the Regional Director determines that it will promote the policies of the
National Labor Relations Act, the Regional Director may approve the settlement agreement and
decline to issue or reissue a Complaint in this matter. If that occurs, this Agreement shall be
between the Charged Party and the undersigned Regional Director. In that case, a Charging Party
may request review of the decision to approve the Agreement. If the General Counsel does not
sustain the Regional Director's approval, this Agreement shall be null and void.
AUTHORIZATION TO PROVIDE COMPLIANCE INFORMATION AND NOTICES
DIRECTLY TO CHARGED PARTY — Counsel for the Charged Party authorizes the
Regional Office to forward the cover letter describing the general expectations and instructions
to achieve compliance, a conformed settlement, original notices and a certification of posting
directly to the Charged Party. If such authorization is granted, Counsel will be simultaneously
served with a courtesy copy of these documents.
Yes ________ No ________
Initials Initials
PERFORMANCE — Performance by the Charged Party with the terms and provisions of this
Agreement shall commence immediately after the Agreement is approved by the Regional
Director, or if the Charging Party does not enter into this Agreement, performance shall
commence immediately upon receipt by the Charged Party of notice that no review has been
requested or that the General Counsel has sustained the Regional Director.
The Charged Party agrees that in case of non-compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days notice from the Regional Director of the
National Labor Relations Board of such non-compliance without remedy by the Charged Party,
the Regional Director will issue a complaint that will include the allegations spelled out above in
the Scope of Agreement section. Thereafter, the General Counsel may file a motion for default
judgment with the Board on the allegations of the complaint. The Charged Party understands and
agrees that all of the allegations of the complaint will be deemed admitted and it will have
waived its right to file an Answer to such complaint. The only issue that may be raised before the
Board is whether the Charged Party defaulted on the terms of this Settlement Agreement. The
Board may then, without necessity of trial or any other proceeding, find all allegations of the
complaint to be true and make findings of fact and conclusions of law consistent with those
allegations adverse to the Charged Party on all issues raised by the pleadings. The Board may
then issue an order providing a full remedy for the violations found as is appropriate to remedy
such violations. The parties further agree that a U.S. Court of Appeals Judgment may be entered
enforcing the Board order ex paste, after service or attempted service upon Charged Party/
Respondent at the last address provided to the General Counsel.
NOTIFICATION OF COMPLIANCE — Each party to this Agreement will notify the
Regional Director in writing what steps the Charged Party has taken to comply with the
Agreement. This notification shall be given within 5 days, and again after 60 days, from the date
of the approval of this Agreement. If the Charging Party does not enter into this Agreement,
initial notice shall be given within 5 days after notification from the Regional Director that the
Charging Party did not request review or that the General Counsel sustained the Regional
Director's approval of this agreement. No further action shall be taken in the above captioned
case(s) provided that the Charged Party complies with the terms and conditions of this
Settlement Agreement and Notice.
Charged Party
THYSSENICRUPP STAINLESS USA, LLC
By: Name and Title
/s/ John Lambremont
JOHN LAMBREMONT, Attorney
Date 4/30/2012
Charging Party
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL–CIO, CLC
By: Name and Title
/s/ Brad Manzolillo
BRAD MANZOLILLO, Organizing Counsel
Date 4/27/12
Recommended By:
/s/ Zachary E. Herlands
ZACHARY E. HERLANDS, Field Attorney
Date 4/30/12
Approved By:
/s/ M. Kathleen McKinney
M. KATHLEEN MCKINNEY, Regional Director, Region 15
Date 4/30/12
(To be printed and posted on official Board notice form)
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 threaten you with loss of benefits or tell you that you will lose everything and
start from zero if you choose to be represented by or support a Union.
WE WILL NOT make it appear to you that we are watching out for your Union activities.
WE WILL NOT watch you in order to find about your Union activities.
WE WILL NOT tell you that you cannot talk about or discuss the Union while on working time
while we allow you to talk about or discuss other subjects while on working time and WE
WILL repeal the rule promulgated in a written discipline on that subject.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL rescind in writing any and all discipline employees received, including that given to
employees Mack Royster and John Dees, as a result of a rule prohibiting discussion or talk about
the Union during working hours, and WE WILL notify all affected employees that their
discipline was removed from our files and that it will not affect them in any way in the future.
WE WILL allow you to discuss or talk about the Union during working hours while we allow
you to talk about or discuss other subjects while on working time.
THYSSENKCRUPP STAINLESS USA, LLC
________________________________________________
(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. We conduct secret-ballot elections to determine
whether employees want union representation and we investigate and remedy 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 or you may call the Board's toll-free number 1-866-667-NLRB
(1-866-667-6572). Hearing impaired persons may contact the Agency's TTY service at 1-866-
315-NLRB. You may also obtain information from the Board's website: www.nlrb.gov.
600 S MAESTRI PL Telephone: (504) 589-6361
FL 7 Hours of Operation: 8 a.m. to 4:30 p.m.
NEW ORLEANS, LA 70130-3414