Shane Steel Processing, Inc.

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 18 (N.L.R.B. 2006)

347 NLRB No. 18
Shane Steel Processing, Inc. and Local 771, Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), AFL–CIO. Cases 7–CA–47710 and 7-
CA–48016
May 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has withdrawn its
answer to the consolidated amended complaint and failed
to file an answer to the reinstated consolidated amended
complaint. Upon a charge and an amended charge filed
by the Union in Case 7–CA–47710 on July 26 and Sep-
tember 22, 2004, respectively, and a charge in Case 7–
CA–48016 filed on October 20, 2004, the General Coun-
sel issued the consolidated amended complaint on No-
vember 18, 2004, against Shane Steel Processing, Inc.
(the Respondent), alleging that it has violated Section
8(a)(1) and (5) of the Act.1 On December 10, 2004, the
Respondent filed an answer to the consolidated amended
complaint.
On January 19, 2005, the Regional Director for Region
7 issued an order conditionally approving the withdrawal
of charges and dismissing the consolidated amended
complaint as a result of a “private” non-Board settlement
agreement between the Union and the Respondent. The
Regional Director’s order provided that the charges and
consolidated amended complaint were subject to rein-
statement for further proceedings in the event that the
Union produced evidence that the Respondent had failed
to comply with the undertakings in the private settle-
ment.
On May 25, 2005, the Regional Director issued an or-
der setting aside the January 19, 2005 order and reinstat-
ing the consolidated amended complaint, on the ground
that the Respondent had not complied with the terms of
the private settlement. Specifically, the Regional Direc-
tor asserted that the Respondent had not returned the
dental benefits, wages, health benefits, or optical benefits
to the status quo, as was required by the settlement. The
Respondent did not refute these assertions.

1 The consolidated amended complaint issued on November 18,
2004, also included 8(a)(3) and (1) allegations arising from a charge
and amended charge in Case 7–CA–47748, filed by Mark Moore, Sr.
On January 14, 2005, the Regional Director for Region 7 issued an
Order Severing Case 7–CA–47748 from Cases 7–CA–47710 and 7–
CA–48016 and an order deferring Case 7–CA–47748 to arbitration.
By letter dated August 5, 2005, the Respondent with-
drew the answer that it had previously filed to the con-
solidated amended complaint.
On February 17, 2006, the General Counsel filed a
Motion for Default Judgment with the Board. On Febru-
ary 22, 2006, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the consolidated amended complaint
affirmatively stated that unless an answer was filed, all
the allegations in the consolidated amended complaint
could be considered admitted. Here, although the Re-
spondent filed an answer on December 10, 2004, it sub-
sequently withdrew its answer by letter dated August 5,
2005. The withdrawal of an answer has the same effect
as a failure to file an answer, i.e., the allegations in the
consolidated amended complaint must be considered to
be true.2
Accordingly, based on the withdrawal of the Respon-
dent’s answer to the consolidated amended complaint,
and in the absence of good cause being shown for the
failure to file an answer, we grant the General Counsel’s
Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with its headquarters and place of business at 17495 Ma-
lyn, Fraser, Michigan, has been engaged in the manufac-
turing and processing of commercial steel bars.
During 2003, the Respondent, in conducting its opera-
tions described above, derived gross revenues in excess
of $500,000, and purchased and received at its Fraser
facility goods valued in excess of $50,000 directly from
points located outside the State of Michigan.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the International Union, United

2 See Maislin Transport, 274 NLRB 529 (1985). Thus, the Respon-
dent has not filed an answer to the reinstated consolidated amended
complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO (the Interna-
tional Union) and the Charging Party Union are labor
organizations within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their names and have
been supervisors of the Respondent within the meaning
of Section 2(11) of the Act, and agents of the Respondent
within the meaning of Section 2(13) of the Act:
John Hartley President
Michael Bruno Plant Manager
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production and
maintenance employees, including shipping and receiv-
ing employees, employed by the Respondent at its fa-
cility at 17495 Malyn, Fraser, Michigan; but excluding
all office clerical employees, and guards and supervi-
sors as defined in the Act.
Since about March 9, 1976, and at all material times,
based on Section 9(a) of the Act, the International Union
has been the exclusive collective-bargaining representa-
tive of the unit and has been so recognized by the Re-
spondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which was effective by its terms from March 17, 2000
to March 17, 2002. Since about March 18, 2002, the
International Union and the Respondent have continued
to abide by the wages, hours, and terms and conditions of
employment embodied in the collective-bargaining
agreement that expired about March 17, 2002.
The International Union has assigned its representative
responsibilities with respect to the unit to the Charging
Party Union.
On about the dates listed below, the Respondent, uni-
laterally and without affording the Union notice and a
meaningful opportunity to bargain, changed the unit em-
ployees’ wages, hours, benefits, and other terms and
conditions of employment in the following ways:
(1) May 21, 2004: eliminated the Respondent’s
401(k) match;
(2) May 31, 2004: reduced wages by 10 percent,
and eliminated dental benefits and optical benefits;
(3) June 1, 2004: changed medical benefits, and
eliminated the perfect attendance bonus, rides to the
medical clinic and/or mileage reimbursement, and
prescription co-pay reimbursements;
(4) August 3, 2004: changed the attendance pol-
icy;
(5) October 8, 2004: eliminated the 401(k) pro-
gram.
The subjects set forth above relate to wages, hours,
benefits, and other terms and conditions of employment
of the unit, and are mandatory subjects for the purposes
of collective bargaining.
The Respondent engaged in the conduct set forth
above without affording the Union a meaningful oppor-
tunity to bargain with the Respondent with respect to this
conduct and the effects of this conduct on the unit.
CONCLUSIONS OF LAW
1. By unilaterally changing the terms and conditions of
employment of the unit employees in the manner set
forth above, the Respondent has failed and refused to
bargain collectively and in good faith with the exclusive
collective-bargaining representative of its unit employ-
ees, in violation of Section 8(a)(5) and (1) of the Act.
2. The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to bargain collectively and in
good faith with the Union by unilaterally changing the
wages, hours, benefits, and other terms and conditions of
employment of its unit employees, we shall order the
Respondent to restore the status quo and to make its unit
employees whole, as set forth below.
The Respondent shall reestablish the 401(k) plan,
make all required payments that have not been made
since about May 21, 2004, including any additional
amounts due the plan in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979), and
make the unit employees whole for any loss of interest
they may have suffered as a result of the failure to make
such payments.
In addition, the Respondent shall restore the unit em-
ployes’ dental, optical, and medical benefits, and make
all required benefit fund payments or contributions, if
any, that have not been made since about May 31, 2004,
including any additional amounts applicable to such
SHANE STEEL PROCESSING, INC. 3
payments or contributions as set forth in Merryweather
Optical Co., supra. Further, the Respondent shall reim-
burse unit employees for any expenses ensuing from the
Respondent’s failure to continue their health care bene-
fits, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Finally, with respect to the Respondent’s remaining
unilateral changes, including its reduction of wages and
its elimination of the perfect attendance bonus, the Re-
spondent shall make the unit employees whole for any
loss of earnings and other benefits attributable to its
unlawful conduct. Backpay shall be computed in accor-
dance with Ogle Protection Service, supra, with interest
as prescribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Shane Steel Processing, Inc., Fraser, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Local 771, International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO, as the exclusive
representative of the employees in the following appro-
priate unit by unilaterally changing employees’ wages,
hours, benefits, and other terms and conditions of em-
ployment, without affording the Union notice and a
meaningful opportunity to bargain. The unit is:
All full-time and regular part-time production and
maintenance employees, including shipping and receiv-
ing employees, employed by the Respondent at its fa-
cility at 17495 Malyn, Fraser, Michigan; but excluding
all office clerical employees, and guards and supervi-
sors as defined in the Act.
(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) Restore the status quo that existed in May 2004
prior to its unilateral changes to employees’ wages,
hours, benefits, and other terms and conditions of em-
ployment, including dental, optical, and health benefits,
and the 401(k) plan, until the Respondent bargains with
the Union in good faith to an agreement or an impasse.
(b) Reestablish the 401(k) plan, make all required pay-
ments that have not been made since about May 21,
2004, and make the unit employees whole for any loss of
interest they may have suffered as a result of the unilat-
eral failure to make such payments, in the manner set
forth in the remedy section of this decision.
(c) Restore the unit employees’ dental, optical, and
medical benefits, make all required benefit fund pay-
ments or contributions, if any, that have not been made
since about May 31, 2004, and reimburse unit employees
for any expenses resulting from its unlawful failure to
continue their health care benefits, with interest, in the
manner set forth in the remedy section of this decision.
(d) Make unit employees whole by paying them the
wages and other benefits that have not been paid since
May 21, 2004, with interest, in the manner set forth in
the remedy section of this decision.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other 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.
(f) Within 14 days after service by the Region, post at
its facility in Fraser, Michigan, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 21, 2004.
(g) 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-

3 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 BOARD4
testing to the steps that the Respondent has taken to com-
ply.
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 has found that we vio-
lated 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 fail and refuse to bargain collectively and
in good faith with Local 771, International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, (UAW), AFL–CIO, as the exclu-
sive representative of the employees in the following
appropriate unit by unilaterally changing employees’
wages, hours, benefits, and other terms and conditions of
employment, without affording the Union notice and a
meaningful opportunity to bargain. The unit is:
All full-time and regular part-time production and
maintenance employees, including shipping and receiv-
ing employees, employed by us at our facility at 17495
Malyn, Fraser, Michigan; but excluding all office clerical
employees, and guards and supervisors as defined in the
Act.
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 restore the status quo that existed in May
2004 prior to our unilateral changes to your wages,
hours, benefits, and other terms and conditions of em-
ployment, including dental, optical, and health benefits,
and the 401(k) plan, until we bargain with the Union in
good faith to an agreement or an impasse.
WE WILL reestablish the 401(k) plan, make all required
payments that have not been made since about May 21,
2004, and make the unit employees whole for any loss of
interest they may have suffered as a result of the unilat-
eral failure to make such payments.
WE WILL restore the unit employees’ dental, optical,
and medical benefits, make all required benefit fund pay-
ments or contributions, if any, that have not been made
since about May 31, 2004, and reimburse unit employees
for any expenses resulting from our unlawful failure to
continue their health care benefits, with interest.
WE WILL make unit employees whole by paying you
the wages and other benefits that have not been paid
since May 21, 2004, with interest.
SHANE STEEL CORPORATION