STEIN, INC.

National Labor Relations Board - Board Decisions

Jan 28, 2020

369 N.L.R.B. 11 (N.L.R.B. 2020)

369 NLRB No. 11
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Stein, Inc. and Truck Drivers, Chauffeurs and Help-
ers Local Union No. 100, affiliated with the In-
ternational Brotherhood of Teamsters
International Union of Operating Engineers (IUOE),
Local 18 and Truck Drivers, Chauffeurs and
Helpers Local Union No. 100, affiliated with the
International Brotherhood of Teamsters. Cases
09–CA–214633 and 09–CB–214595
January 28, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On January 24, 2019, Administrative Law Judge An-
drew S. Gollin issued the attached decision. Respond-
ents Stein, Inc. (Stein) and International Union of Oper-
ating Engineers, Local 18 (IUOE Local 18) each filed
exceptions and supporting briefs, the General Counsel
filed an answering brief, and Respondents Stein and
IUOE Local 18 filed reply briefs. In addition, the Gen-
eral Counsel filed limited cross-exceptions with support-
ing argument, Respondents Stein and IUOE Local 18
filed answering briefs, and the General Counsel filed a
reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings,
findings,2 and conclusions only to the extent consistent
with this Decision and Order.3
I. FACTS
Prior to 2018, AK Steel Holding Corporation (AK
Steel) contracted with TMS International, Inc. (TMS), or
a predecessor to TMS, to perform the scrap reclamation,
slag removal, and processing of slag at its Middletown,
Ohio steelmaking facility. This work was performed by
employees in three separate bargaining units: Respondent

1 The Respondents have requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order to conform to
our findings and to the Board’s standard remedial language, and we
shall substitute new notices to conform to the Order as modified.
IUOE Local 18 representing the operators; Charging
Party Truck Drivers, Chauffeurs, and Helpers, Local Un-
ion No. 100 (Teamsters Local 100) representing the driv-
ers; and Laborers’ International Union of North America,
Local 534 (Laborers Local 534) representing the labor-
ers.
In 2017, AK Steel placed the contract for the
slag/scrap processing up for bid.4 In August, Respondent
Stein learned that it was the leading bidder to assume the
contract. It decided that, if awarded the contract, it
would merge the three historical bargaining units into
one represented solely by Respondent IUOE Local 18,
which had been representing a majority of all of the bar-
gaining unit employees involved in the slag/scrap pro-
cessing. Respondent Stein contacted Respondent IUOE
Local 18 to begin negotiating a collective-bargaining
agreement.
Around October, AK Steel officially awarded Re-
spondent Stein the slag/scrap processing contract, and
TMS notified the IUOE Local 18, Teamsters Local 100,
and Laborers Local 534 unit employees that it would be
shutting down its operations. On November 9, at meet-
ings with the IUOE Local 18, Teamsters Local 100, and
Laborers Local 534 unit employees, Respondent Stein’s
area manager, Douglas Huffnagel, distributed a handout
stating that Stein’s “goal [was] to hire as many TMS em-
ployees as possible” and that “[a]ll jobs will be under the
Operating Engineers [IUOE] Local 18 Union.” The
handout also set forth the wages, holidays, and seniority
that would apply to employees hired by Respondent
Stein and stated that “[a]ll prospective employees will be
subject to a 90-day probationary period, a physical, and a
background check.”
By December 22, Respondents Stein and IUOE Local
18 had executed a new collective-bargaining agreement
under which Respondent Stein recognized Respondent
IUOE Local 18 as the exclusive collective-bargaining
representative of the employees who had been represent-
ed by Teamsters Local 100.5 The collective-bargaining
agreement also contained union-security and dues-
checkoff provisions. Respondent Stein never notified
Teamsters Local 100 that it had merged the three units,
recognized Respondent IUOE Local 18 as the representa-
tive of the merged unit, or entered into a collective-
bargaining agreement with Respondent IUOE Local 18.

4 All dates hereinafter are in 2017 unless otherwise indicated.
5 As discussed in the companion case to this case, Stein, Inc., 369
NLRB No. 10 (2020), the Respondents’ collective-bargaining agree-
ment provided that Respondent Stein also recognized Respondent
IUOE Local 18 as the exclusive collective-bargaining representative of
the employees who had been represented by Laborers Local 534.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. DISCUSSION
We agree with the judge, for the reasons he stated, that
Respondent Stein is a successor to TMS under NLRB v.
Burns Security Services, 406 U.S. 272 (1972), and had a
duty to recognize and bargain with Teamsters Local
100.6 For that reason, in agreement with the judge, we

6 The Respondents did not except to the judge’s findings that there
was a “substantial continuity” in the slag/scrap processing operations
under Respondent Stein, which continued TMS’ business in substan-
tially unchanged form, and that a majority of the drivers hired by Re-
spondent Stein were former TMS employees who had been represented
by Teamsters Local 100, two of the three requirements for Burns suc-
cessorship. Burns, 406 U.S. at 280–281. The Respondents argue,
however, that the third requirement—that the historical units remain
appropriate—was not met.
We agree with the judge’s rejection of this argument. The Respond-
ents failed to meet their “heavy evidentiary burden” of showing that the
historical bargaining units are “repugnant to the Act’s policies” and no
longer appropriate. Banknote Corp. of America, 315 NLRB 1041, 1043
(1994), enfd. 84 F.3d 637 (2d Cir. 1996), cert. denied 519 U.S. 1109
(1997); see also 3750 Orange Place Ltd. Partnership v. NLRB, 333
F.3d 646, 662 (6th Cir. 2003) (finding Burns successor failed to carry
its burden of showing historical bargaining unit was no longer appro-
priate); Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 118–119 (D.C.
Cir. 1996) (finding Burns successor failed to carry its burden of show-
ing that two of the historical bargaining units were no longer appropri-
ate). The extent to which the three historical bargaining units in this
case had some interaction and shared some of the same terms and con-
ditions of employment did not make maintaining separate units repug-
nant to the Act’s policies, notwithstanding Respondent Stein’s limited
cross-training and cross-jurisdictional assignment of work. The histori-
cal bargaining units’ breakdown by work classifications still “‘con-
form[ed] reasonably well to other standards of appropriateness.’”
Deferiet Paper Co. v. NLRB, 235 F.3d 581, 583 (D.C. Cir. 2000) (quot-
ing Trident Seafoods, 101 F.3d at 118). Instructively, whether the
historical bargaining units would have been appropriate if they were
being organized for the first time is not controlling. Id. (“In the context
of a successor employer, the appropriateness inquiry is not the same
inquiry the Board would conduct when certifying a unit for the first
time.”). In addition, the judge properly rejected the Respondents’ re-
quests to admit evidence of unilateral changes regarding employee
cross-training and cross-jurisdictional work assignments after Team-
sters Local 100 demanded recognition. However, we do not rely on the
judge’s statement that “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.” As discussed more fully below, as a Burns suc-
cessor, Respondent Stein was not required to maintain, nor was it
bound by, the collective-bargaining agreement between predecessor
TMS and Teamsters Local 100, including the provisions relating to
definition and assignment of work, conditions of work, and job classifi-
cations.
Respondent Stein also challenges Teamsters Local 100’s status as a
9(a) representative with a continued presumption of majority support.
Stein argues that the record does not show that Teamsters Local 100
had majority support at the time of its initial recognition decades earli-
er, and Stein further speculates that the recognition was pursuant to
Sec. 8(f) of the Act rather than Sec. 9(a). We reject these arguments.
Stein’s attempt to challenge the initial recognition is time-barred under
Sec. 10(b). See Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362
U.S. 411 (1960). Furthermore, Teamsters Local 100’s initial recogni-
tion could not have been as an 8(f) representative because the Respond-
find that Respondent Stein violated Section 8(a)(2) and
(1) by recognizing Respondent IUOE Local 18 as the
exclusive collective-bargaining representative of the
Teamsters Local 100 bargaining unit employees,7 enter-
ing into a collective-bargaining agreement with Re-
spondent IUOE Local 18, and maintaining and enforcing
the terms of that agreement as to Teamsters Local 100
unit members. Respondent Stein further violated Section
8(a)(3) and (1) by maintaining and enforcing the union-
security and dues-checkoff provisions of that agreement
as to the Teamsters Local 100 bargaining unit employ-
ees. See Ports America Outer Harbor, 366 NLRB No.
76, slip op. at 1–2 (2018) (Burns successor violated Sec.
8(a)(2) and (1) by recognizing a union different from the
one recognized by the predecessor and by applying the
terms of a collective-bargaining agreement negotiated
with that union); Emerald Green Building Services, LLC,
364 NLRB No. 109, slip op. at 1, 10 (2016) (Burns suc-
cessor violated Sec. 8(a)(3) and (1) by maintaining a col-
lective-bargaining agreement containing a union-security
clause requiring membership as a condition of employ-
ment with a union different from the one recognized by
the predecessor).
Additionally, as the judge found, Respondent IUOE
Local 18 violated Section 8(b)(1)(A) and (2) by accept-
ing recognition from Respondent Stein as the exclusive
collective-bargaining representative of the employees in
the Teamsters Local 100 unit; entering into, maintaining,
and enforcing the terms of the collective-bargaining
agreement with Respondent Stein; and receiving dues
and fees from the employees in the Teamsters Local 100
unit. See Dean Transportation, Inc., 350 NLRB 48, 48,
60 (2007) (union violated Sec. 8(b)(1)(A) and (2) by ac-
cepting recognition from, applying the terms of a collec-
tive-bargaining agreement with, and receiving dues de-
ductions from a Burns successor obligated to recognize
and bargain with a different union), enfd. 551 F.3d 1055
(D.C. Cir. 2009).8

ents stipulated that the slag/scrap processing performed at the AK Steel
facility is not “building and construction” work as the terms are used in
Sec. 8(f).
7 The judge found that Respondent Stein’s unlawful recognition of
Respondent IUOE Local 18 began on October 12. However, Respond-
ent Stein did not begin employing any of the Teamsters Local 100 unit
employees until January 1, 2018.
8 We also affirm the judge’s findings that Respondent Stein violated
Sec. 8(a)(1) when it informed all potential applicants in the Teamsters
Local 100 bargaining unit that all jobs related to the performance of the
slag/scrap processing would be under Respondent IUOE Local 18 and
threatened Teamsters Local 100 unit employees that they would be
removed from the work schedule if they did not submit a membership
application and dues-checkoff authorization to Respondent IUOE Local
18. See Voith Industrial Services, Inc., 363 NLRB No. 116, slip op. at
3 (2016) (Burns successor violated Sec. 8(a)(1) by telling employee
STEIN, INC. 3
However, as discussed below, we reverse the judge’s
finding that Respondent Stein forfeited its right to set the
initial terms and conditions of employment of the Team-
sters Local 100 unit employees.
Burns Successor’s Right to Set Initial Terms and Condi-
tions of Employment
Despite having a duty to recognize and bargain with
the union recognized by its predecessor, a Burns succes-
sor is ordinarily free to set the initial terms and condi-
tions of employment upon which it hires the predeces-
sor’s bargaining unit employees. Burns, 406 U.S. at 294;
see also Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 40 (1987). This is true even when the suc-
cessor violates Section 8(a)(2) and (1) by unlawfully
assisting and recognizing a rival union to the one that had
been recognized by the predecessor. Burns, 406 U.S. at
279–280, 294 (Burns successor not ordered to honor the
predecessor’s collective-bargaining agreement despite
“upset[ting] what it should have accepted as an estab-
lished union majority by soliciting representation cards
for another union” in violation of Section 8(a)(2) and
(1)); Reliable Trailer and Body, 295 NLRB 1013, 1019–
1020 (1989) (Burns successor not ordered to honor the
predecessor’s collective-bargaining agreement even
though it provided unlawful assistance to and executed a
collective-bargaining agreement with a different union).

that, if hired, he would have to join a different union); Cadillac Asphalt
Paving Co., 349 NLRB 6, 7, 24 (2007) (Burns successor violated Sec.
8(a)(1) by threatening to lay off employees who did not transfer their
union membership to a different union). In addition, we agree with the
judge that Respondent Stein violated Sec. 8(a)(2) and (1) by granting
Respondent IUOE Local 18 access to the jobsite and assistance in dis-
tributing Respondent IUOE Local 18 membership applications and
dues-checkoff authorizations to Teamsters Local 100 unit employees.
See Voith Industrial Services, 363 NLRB No. 116, slip op. at 2–3
(Burns successor violated Sec. 8(a)(2) and (1) by rendering assistance
and support to a union by allowing it to meet with employees during
orientation sessions and worktime to urge them to sign its membership
applications and checkoff authorizations).
Likewise, we also affirm the judge’s findings that Respondent IUOE
Local 18 violated Sec. 8(b)(1)(A) by threatening Teamsters Local 100
unit employees that they would be taken off the work schedule if they
did not join and pay fees and dues to Respondent IUOE Local 18 and
by receiving assistance and support from Respondent Stein in being
allowed on the jobsite to distribute its membership applications and
dues-checkoff authorizations to Teamsters Local 100 unit employees.
In so doing, we do not rely on North Hills Office Services, 342 NLRB
437, 437 fn. 1 (2004), cited by the judge but in which no exceptions
were filed to the 8(b)(1)(A) violation. Instead, we rely on Duane
Reade, Inc., 338 NLRB 943, 943–944 (2003) (union violated Sec.
8(b)(1)(A) by accepting unlawful assistance from employer that invited
the union into its stores to organize employees and directed its employ-
ees to meet with union representatives to sign authorization cards),
enfd. 99 Fed.Appx. 240 (D.C. Cir. 2004), and Planned Building Ser-
vices, 318 NLRB 1049, 1049, 1063 (1995) (union violated Sec.
8(b)(1)(A) by threatening employees that they could be discharged if
they did not sign its membership cards).
Notwithstanding the Court’s holding in Burns, the
judge found, relying principally on the Board’s decision
in Advanced Stretchforming International, 323 NLRB
529 (1997), enfd. in relevant part 233 F.3d 1176 (9th Cir.
2000), that Respondent Stein forfeited its right to set ini-
tial terms by engaging in concomitant unfair labor prac-
tices. Specifically, the judge cited his findings that Re-
spondent Stein violated Section 8(a)(2) by unlawfully
recognizing and executing a collective-bargaining
agreement with Respondent IUOE Local 18, and Section
8(a)(1) by making the unlawful statement that new hires
would fall under Respondent IUOE Local 18’s jurisdic-
tion.9 In light of these violations, the judge concluded
that applying the forfeiture doctrine here would not be
inconsistent with the holding in Burns.
We disagree with the judge's conclusion. Unlike the
judge, we find the holding in Burns is controlling and,
further, that the facts of Advanced Stretchforming are
distinguishable from the facts presented here.10 In Ad-
vanced Stretchforming, the Board found that a Burns
successor forfeited its right to set initial terms and condi-
tions of employment because, at the time of successor-
ship, it informed employees that there would be no union
for those whom it hired. Id. at 530. The Board reasoned
that by making that statement, the successor “blatantly
coerce[d] employees in the exercise of their Section 7
right[s]” and “serve[d] the same end as a refusal to hire
employees from the predecessor’s unionized work
force.” Id. The Board stated that, with respect to the
successor’s statement that there would be no union,
“[n]othing in Burns suggests that an employer may im-
pose such an unlawful condition and still retain the uni-
lateral right to determine other legitimate initial terms
and conditions of employment.” Id.
In contrast to the successor in Advanced Stretchform-
ing, Respondent Stein did not tell employees that there
would be no union, nor did it refuse to recognize the em-
ployees’ Section 7 right to collectively bargain. Instead,
Respondent Stein questioned the trifurcation of the em-
ployees into three separate bargaining units and sought to
bargain solely with the union that it believed represented
a majority of the employees in what it considered to be
an appropriate bargaining unit consisting of all of the
slag/scrap processing employees. Respondent Stein did
not engage in the kind of wholesale repudiation of em-

9 The judge also cited to Galloway School Lines, 321 NLRB 1422
(1996), which we overruled in Ridgewood Health Center, Inc. and
Ridgewood Health Services, Inc., 367 NLRB No. 110, slip op. at 7
(2019), after the judge issued his decision in this case.
10 Because we find this case distinguishable, we find it unnecessary
here to address Respondent Stein’s arguments for overruling Advanced
Stretchforming. However, we would be willing to reconsider Advanced
Stretchforming in a future appropriate case.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees’ Section 7 rights that occurred in Advanced
Stretchforming. Respondent Stein’s conduct, although
unlawful, was not the kind that the Supreme Court in
Burns contemplated as requiring bargaining before the
successor could unilaterally set the initial terms and con-
ditions of employment under which it would hire the
predecessor’s employees. Moreover, the judge over-
looked Respondent Stein’s lack of a relationship with the
bargaining units prior to learning that it would be award-
ed the slag/scrap processing contract and the fact that
Stein was not in any way involved with the establishment
of the historical bargaining units or the collective-
bargaining agreements negotiated between predecessor
TMS and Teamsters Local 100. See Burns, 406 U.S. at
294 (“It is difficult to understand how [the successor]
could be said to have changed unilaterally any pre-
existing term or condition of employment without bar-
gaining when it had no previous relationship whatsoever
to the bargaining unit and, prior to [assuming the service
contract], no outstanding terms and conditions of em-
ployment from which a change could be inferred.”).
Because the facts in this case are analogous to those in
Burns, rather than Advanced Stretchforming, we believe
the remedy here should be the same as in Burns: an or-
der requiring the successor to bargain with the union
after exercising its right to set initial terms and condi-
tions. Respondent Stein did not forfeit its right as a
Burns successor to unilaterally set the initial terms and
conditions of employment applicable to the Teamsters
Local 100 unit employees. Accordingly, contrary to the
judge, we find that Respondent Stein did not violate Sec-
tion 8(a)(5) and (1) by unilaterally changing the existing
terms and conditions of employment of the Teamsters
Local 100 unit employees contained in the collective-
bargaining agreement negotiated between TMS and
Teamsters Local 100 that was effective through Decem-
ber 31, 2017.11
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 9 and renumber the subse-
quent paragraphs accordingly.
AMENDED REMEDY
As addressed above, because Respondent Stein did not
forfeit its right to set the initial terms and conditions of
employment applicable to the Teamsters Local 100 unit

11 We find it unnecessary to pass on whether Respondent Stein vio-
lated Sec. 8(a)(5) and (1) by applying the collective-bargaining agree-
ment it negotiated with Respondent IUOE Local 18 to the Teamsters
Local 100 unit employees. In light of our finding that Respondents
Stein and IUOE Local 18 violated Sec. 8(a)(2) and (1) and Sec.
8(b)(1)(A), respectively, by applying that agreement to the Teamsters
Local 100 unit employees, finding the additional 8(a)(5) violation
would not materially affect the remedy.
employees, we shall amend the judge’s remedy so as not
to order Respondent Stein to retroactively restore the
preexisting terms and conditions of employment con-
tained in the Teamsters Local 100 collective-bargaining
agreement with TMS that was effective through Decem-
ber 31. However, on request by Teamsters Local 100,
Respondent Stein will be required to rescind any depar-
tures from the terms and conditions of employment that
existed immediately prior to its unlawful recognition of
Respondent IUOE Local 18, which would include rein-
stating the lawful initial terms and conditions that Re-
spondent Stein announced to bargaining unit employees
on November 9.12
In addition, we find merit in the General Counsel’s
limited cross-exception to the judge’s failure to include
an affirmative bargaining order requiring Respondent
Stein to recognize and bargain with Teamsters Local
100.13
ORDER
A. The National Labor Relations Board orders that the
Respondent, Stein, Inc., Middletown, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively, on request, with Truck Drivers, Chauffeurs,
and Helpers, Local Union No. 100 (Teamsters Local
100) as the exclusive collective-bargaining representative
of the employees in the following appropriate bargaining
unit (the Teamsters Local 100 unit) concerning wages,
hours, and other terms and conditions of employment:
[A]ll truck drivers employed by [Respondent Stein,
Inc.] at its AK Steel, Middletown, Ohio facility, ex-
cluding all other production and maintenance employ-
ees, office clerical employees, professional employees,
guards and supervisors as defined by the National La-
bor Relations Act.
(b) Granting assistance to Respondent International
Union of Operating Engineers, Local 18 (Respondent

12 No exceptions were filed to the judge’s denial of the General
Counsel’s request for a notice-reading remedy.
13 The judge’s Remedy included ordering Respondent Stein to rec-
ognize and bargain with Teamsters Local 100, but he failed to include
the appropriate affirmative bargaining language. Further, Respondent
Stein acknowledged in its brief in support of exceptions that an affirma-
tive bargaining order is the appropriate remedy for an 8(a)(5) violation
under Burns. In addition, in its answering brief to the General Coun-
sel’s limited cross-exceptions, Respondent Stein takes issue generally
with the judge’s remedial relief but not specifically with the General
Counsel’s request for an affirmative bargaining order. We therefore
find it unnecessary to provide a specific justification for that remedy.
See Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 368 NLRB No.
119, slip op. at 1 fn. 2 (2019) (citing cases).
STEIN, INC. 5
IUOE Local 18), including by granting Respondent
IUOE Local 18 access to the jobsite and assistance in
distributing Respondent IUOE Local 18 membership
applications and dues-checkoff authorizations, and rec-
ognizing it as the exclusive collective-bargaining repre-
sentative of the Teamsters Local 100 unit employees at a
time when Respondent IUOE Local 18 does not repre-
sent an unassisted and uncoerced majority of the em-
ployees in the Teamsters Local 100 unit.
(c) Applying the terms and conditions of employment
of the collective-bargaining agreement between Re-
spondent Stein, Inc. and Respondent IUOE Local 18,
including the union-security and dues-checkoff provi-
sions, to the Teamsters Local 100 unit employees at a
time when Respondent IUOE Local 18 does not repre-
sent an unassisted and uncoerced majority of the em-
ployees in the Teamsters Local 100 unit.
(d) Telling potential job applicants who worked for its
predecessor, including those in the Teamsters Local 100
unit, that all bargaining unit jobs related to the perfor-
mance of the slag/scrap processing will be under Re-
spondent IUOE Local 18.
(e) Threatening employees, including those in the
Teamsters Local 100 unit, that they will be removed
from the work schedule if they do not submit a Respond-
ent IUOE Local 18 membership application and dues-
checkoff authorization.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from Re-
spondent IUOE Local 18 as the exclusive collective-
bargaining representative of the Teamsters Local 100
unit employees, unless and until that labor organization
has been certified by the National Labor Relations Board
as the exclusive representative of those employees.
(b) Refrain from applying the terms and conditions of
employment of a collective-bargaining agreement with
Respondent IUOE Local 18, including the union-security
and dues-checkoff provisions, to the Teamsters Local
100 unit employees, unless and until that labor organiza-
tion has been certified by the National Labor Relations
Board as the exclusive representative of those employ-
ees.
(c) Recognize and, on request, bargain with Teamsters
Local 100 as the exclusive collective-bargaining repre-
sentative of the Teamsters Local 100 unit employees
concerning wages, hours, and other terms and conditions
of employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
(d) Jointly and severally with Respondent IUOE Local
18, reimburse all employees in the Teamsters Local 100
unit for all initiation fees, dues, and other moneys paid
by them to Respondent IUOE Local 18 or withheld from
their wages pursuant to the collective-bargaining agree-
ment between Respondent Stein and Respondent IUOE
Local 18, in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(e) Notify Teamsters Local 100, 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
Teamsters Local 100 unit and, on request of Teamsters
Local 100, rescind any departures from the terms and
conditions of employment that existed immediately prior
to its unlawful recognition of Respondent IUOE Local
18.
(f) Within 14 days after service by the Region, post at
the Middletown, Ohio facility copies of the attached no-
tice marked “Appendix A.”14 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by Respondent Stein, Inc.’s authorized
representative, shall be posted by Respondent Stein, Inc.
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if Respondent Stein,
Inc. customarily communicates with its employees by
such means. Reasonable steps shall be taken by Re-
spondent Stein, Inc. to ensure that the notices are not
altered, defaced, or covered by any other material. If
Respondent Stein, Inc. has gone out of business or closed
the facility involved in these proceedings, Respondent
Stein, Inc. shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by Respondent Stein, Inc., or its
predecessor, at any time since November 9, 2017.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent Stein, Inc.
has taken to comply.
B. The National Labor Relations Board orders that the
Respondent, International Union of Operating Engineers,
Local 18, its officers, agents, and representatives, shall
1. Cease and desist from

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 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.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Accepting assistance, including access to the
jobsite and assistance in distributing Respondent IUOE
Local 18 membership applications and dues-checkoff
authorizations, from Respondent Stein, Inc., or recogni-
tion from Respondent Stein, Inc. as the exclusive collec-
tive-bargaining representative of the employees in the
Teamsters Local 100 unit described below at a time
when it does not represent an uncoerced majority of the
employees in the Teamsters Local 100 unit:
[A]ll truck drivers employed by [Respondent Stein,
Inc.] at its AK Steel, Middletown, Ohio facility, ex-
cluding all other production and maintenance employ-
ees, office clerical employees, professional employees,
guards and supervisors as defined by the National La-
bor Relations Act.
(b) Maintaining and enforcing its collective-
bargaining agreement with Respondent Stein, Inc., or any
extension, renewal, or modification thereof, including the
union-security and dues-checkoff provisions, so as to
cover the Teamsters Local 100 unit employees, unless
and until it has been certified by the Board as the collec-
tive-bargaining representative of those employees.
(c) Threatening employees, including those in the
Teamsters Local 100 unit, that they will be removed
from the work schedule if they do not submit a Respond-
ent IUOE Local 18 membership application and dues-
checkoff authorization.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Decline recognition as the exclusive collective-
bargaining representative of the Teamsters Local 100
unit employees, unless and until Respondent IUOE Local
18 has been certified as the exclusive representative of
those employees.
(b) Jointly and severally with Respondent Stein, Inc.,
reimburse all present and former Teamsters Local 100
unit employees for all initiation fees, dues, and other
moneys paid to Respondent IUOE Local 18 or withheld
from their wages pursuant to Respondent IUOE Local
18’s collective-bargaining agreement with Respondent
Stein, Inc., in the manner set forth in the remedy section
of the judge’s decision as amended in this decision.
(c) Within 14 days after service by the Region, post at
its headquarters and at its offices and meeting halls in
Franklin, Ohio, copies of the attached notice marked
“Appendix B.”15 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed
by Respondent IUOE Local 18’s authorized representa-
tive, shall be posted by Respondent IUOE Local 18 for
60 consecutive days in conspicuous places, including all
places where notices to employees and members are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, or
other electronic means, if Respondent IUOE Local 18
customarily communicates with its members by such
means. Reasonable steps shall be taken by Respondent
IUOE Local 18 to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Within 21 days after service by the Region, file
with the Region Director for Region 9 a sworn certificate
of a responsible official on a form provided by the Re-
gion attesting to the steps that Respondent IUOE Local
18 has taken to comply.
Dated, Washington, D.C. January 28, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
STEIN, INC. 7
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 recognize and bargain
collectively, on request, with Truck Drivers, Chauffeurs,
and Helpers, Local Union No. 100 (Teamsters Local
100) as the exclusive collective-bargaining representative
of the employees in the following appropriate bargaining
unit (the Teamsters Local 100 unit) concerning wages,
hours, and other terms and conditions of employment:
[A]ll truck drivers employed by [Respondent Stein,
Inc.] at its AK Steel, Middletown, Ohio facility, ex-
cluding all other production and maintenance employ-
ees, office clerical employees, professional employees,
guards and supervisors as defined by the National La-
bor Relations Act.
WE WILL NOT grant assistance to International Union
of Operating Engineers, Local 18 (IUOE Local 18), in-
cluding by granting IUOE Local 18 access to the jobsite
and assistance in distributing IUOE Local 18 member-
ship applications and dues-checkoff authorizations, and
WE WILL NOT recognize it as the exclusive collective-
bargaining representative of the Teamsters Local 100
unit employees at a time when IUOE Local 18 does not
represent an unassisted and uncoerced majority of the
employees in the Teamsters Local 100 unit.
WE WILL NOT apply the terms and conditions of em-
ployment of our collective-bargaining agreement with
IUOE Local 18, including the union-security and dues-
checkoff provisions, to the Teamsters Local 100 unit
employees at a time when IUOE Local 18 does not rep-
resent an unassisted and uncoerced majority of the em-
ployees in the Teamsters Local 100 unit.
WE WILL NOT tell potential job applicants who worked
for our predecessor, including those in the Teamsters
Local 100 unit, that all bargaining unit jobs related to the
performance of the slag/scrap processing will be under
IUOE Local 18.
WE WILL NOT threaten employees, including those in
the Teamsters Local 100 unit, that they will be removed
from the work schedule if they do not submit an IUOE
Local 18 membership application and dues-checkoff au-
thorization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL withdraw and withhold all recognition from
IUOE Local 18 as the exclusive collective-bargaining
representative of the Teamsters Local 100 unit employ-
ees, unless and until that labor organization has been
certified by the National Labor Relations Board as the
exclusive representative of those employees.
WE WILL refrain from applying the terms and condi-
tions of employment of a collective-bargaining agree-
ment with IUOE Local 18, including the union-security
and dues-checkoff provisions, to the Teamsters Local
100 unit employees, unless and until that labor organiza-
tion has been certified by the National Labor Relations
Board as the exclusive representative of those employ-
ees.
WE WILL recognize and, on request, bargain with
Teamsters Local 100 as the exclusive collective-
bargaining representative of the Teamsters Local 100
unit employees concerning wages, hours, and other terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
WE WILL, jointly and severally with IUOE Local 18,
reimburse all employees in the Teamsters Local 100 unit
for all initiation fees, dues, and other moneys paid by
them to IUOE Local 18 or withheld from their wages
pursuant to our collective-bargaining agreement with
IUOE Local 18, plus interest.
WE WILL notify Teamsters Local 100, 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
Teamsters Local 100 unit, and WE WILL, on request of
Teamsters Local 100, rescind any departures from the
terms and conditions of employment that existed imme-
diately prior to our unlawful recognition of IUOE Local
18.
STEIN, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/09-CA-214633 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT accept assistance, including access to the
jobsite and assistance in distributing our membership
applications and dues-checkoff authorizations, from
Stein, Inc., and WE WILL NOT accept recognition from
Stein, Inc. as the exclusive collective-bargaining repre-
sentative of the employees in the Teamsters Local 100
unit described below at a time when we do not represent
an uncoerced majority of the employees in the Teamsters
Local 100 unit:
[A]ll truck drivers employed by [Respondent Stein,
Inc.] at its AK Steel, Middletown, Ohio facility, ex-
cluding all other production and maintenance employ-
ees, office clerical employees, professional employees,
guards and supervisors as defined by the National La-
bor Relations Act.
WE WILL NOT maintain and enforce our collective-
bargaining agreement with Stein, Inc., or any extension,
renewal, or modification thereof, including the union-
security and dues-checkoff provisions, so as to cover the
Teamsters Local 100 unit employees, unless and until we
have been certified by the Board as the collective-
bargaining representative of those employees.
WE WILL NOT threaten employees, including those in
the Teamsters Local 100 unit, that they will be removed
from the work schedule if they do not submit an IUOE
Local 18 membership application and dues-checkoff au-
thorization.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL decline recognition as the exclusive collec-
tive-bargaining representative of the Teamsters Local
100 unit employees, unless and until we have been certi-
fied as the exclusive representative of those employees.
WE WILL, jointly and severally with Stein, Inc., reim-
burse all present and former Teamsters Local 100 unit
employees for all initiation fees, dues, and other moneys
paid to us or withheld from their wages pursuant to our
collective-bargaining agreement with Stein, Inc., plus
interest.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 18
The Board’s decision can be found at
http://www.nlrb.gov/case/09-CA-214633 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Daniel Goode and Theresa Laite, Esqs., for the General Coun-
sel.
Keith Pryatel, Esq., for Respondent Stein, Inc.
Tim Fadel, Esq., for Respondent International Union of Oper-
ating Engineers (IUOE) Local 18.
Stephanie Spanja, Esq., for Charging Party Truck Drivers,
Chauffeurs and Helpers Local Union No. 100.
DECISION
I. INTRODUCTION1
ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. These
consolidated cases were tried on September 12, 13, and 17, and
October 22 and 23, 2018,2 in Cincinnati, Ohio, based on allega-
tions by the Truck Drivers, Chauffeurs and Helpers Local Un-
ion No. 100, affiliated with the International Brotherhood of

1 Abbreviations are as follows: “Tr.” for transcript; “Jt. Exh.” for
Joint Exhibits; “GC 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 to 2018, unless otherwise stated.
Elfl5,--1=1
E?"--07N,
STEIN, INC. 9
Teamsters (“Teamsters Local 100” or “Local 100”) 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 (“the
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 18as
the exclusive bargaining representative of that merged unit, at a
time when Teamsters Local 100 continued to represent a major-
ity 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 (“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, Teamsters Local
100, and the Laborers’ International Union of North America,
Local No. 534 (“Laborers Local 534”).3 Although Stein was
aware of the existing bargaining relationships, it was intent on
having only one unit, represented by one union. To that end, in
August 2017, Stein contacted IUOE Local 18 about entering
into an agreement that would combine the three units into one,
with Local 18 as the sole representative of that merged unit.
Stein selected Local 18 because it represented a majority of the
TMS employees 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 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-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 9 of the 15
drivers represented by Teamsters Local 100. Since January 1,
Respondents have maintained and enforced the terms of their
agreement, including the union-security and dues-checkoff
provisions. Those terms differ from the terms in effect for the
drivers when they worked for TMS prior to January 1. On
January 10, Teamsters Local 100 sent Stein a letter demanding
recognition/requesting bargaining as the exclusive bargaining
representative of the drivers units. Stein has failed or refused to

3 These consolidated cases were tried together with the amended
consolidated complaint issued based on charges Laborers’ Local 534
filed against Stein and IUOE Local 18 in Cases 09–CA–215131, 09–
CA–219834, and 09–CB–215147, respectively, alleging similar viola-
tions. Those allegations will be addressed in a separate decision.
recognize and bargain with Local 100.
The amended consolidated complaint alleges that Stein, as a
successor employer, violated Section 8(a)(1), (2), (3), and (5) of
the Act by the above conduct, and violated Section 8(a)(1) and
(2) of the Act when it rendered unlawful assistance to IUOE
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 majori-
ty of the employees in the drivers unit. The amended consoli-
dated complaint also alleges that IUOE Local 18 violated Sec-
tion 8(b)(1)(A) and (b)(2) of the Act by its role in the above
conduct, and by threatening employees to get them to join and
pay dues and fees to Local 18. For the reasons stated below, I
find merit to the alleged violations.
II. STATEMENT OF THE CASE
On February 8, Teamsters Local 100 filed an unfair labor
practice charge against Stein in Case 09–CA–214633. That
same day, Teamsters Local 100 filed an unfair labor practice
charge against IUOE Local 18 in Case 09–CB–214595. Local
100 amended both charges on March 26. On April 19, the Re-
gional Director for Region 9 of the National Labor Relations
Board (the Board), on behalf of the General Counsel, issued an
order consolidating cases and consolidated complaint and no-
tice of calendar call in these cases, and on April 30, issued an
amendment to that order consolidating cases and consolidated
complaint. These documents will be referred to, collectively,
as the amended consolidated complaint. On May 3, Stein filed
its answer to the amended consolidated complaint. On May 17,
IUOE Local 18 filed its answer to the amended consolidated
complaint. On July 12, the IUOE amended its answer.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 posthearing briefs,
which I have carefully considered. Accordingly, based upon
the entire record, including the posthearing briefs and my ob-
servations of the credibility of the witnesses, I make the follow-
ing findings, conclusions of law, and remedy and recommended
order.

4 On July 9, the General Counsel filed a motion in limine to pre-
clude Respondents from presenting 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 complaints. Stein opposed the motion. At the
hearing, I denied the motion and allowed Respondents to present rele-
vant evidence related to the nature of the individual bargaining relation-
ships between TMS, and its predecessors, and the three unions at issue.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. FINDINGS OF FACT5
A. Jurisdiction, Labor Organizations, and Agents
Stein is a corporation with a principal office in Broadview
Heights, Ohio, that has been engaged in slag processing and
steel mill services at various locations throughout the United
States, including the slag/scrap work at the AK Steel Mid-
dletown facility in Middletown, Ohio. In conducting its opera-
tions during the 12-month period ending April 15, Stein will
annually perform services valued in excess of $50,000 outside
the State of Ohio. Based on a projection of its operations since
about January 1, at which time Stein commenced its operations
at its Middletown, Ohio facility, it will annually sell and ship
from its Middletown, Ohio facility goods valued in excess of
$50,000 directly to points outside the State of Ohio. Stein ad-
mits, 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.
It is further admitted, and I find, that, at all material times,
Teamsters Local 100, Laborers Local 534, 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 (13) of
the Act, respectively: Dave Holvey (vice president/chief finan-
cial officer), Bill Forman (vice president of operations), Doug-
las Huffnagel (area manager), Jeff Porter (site superintendent),
and Jason Westover (shift supervisor). The following are ad-
mitted agents of IUOE Local 18 within the meaning Section
2(13) of the Act: Jefferson S. Powell (district manager), Rich-
ard E. Dalton (business manager), Thomas P. Byers (president),
and Justin Gabbard (business agent).
B. Unfair Labor Practices
1. Background
AK Steel Holding Corporation (“AK Steel”) is a steel mak-

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 there-
from. 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’ testimony, the quality of the witness’s recol-
lection, testimonial consistency, the presence or absence of corrobora-
tion, 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 Build-
ers, 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)).
ing 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 Mid-
dletown location includes, among others, a blast furnace, a
basic oxygen furnace, a processing plant, a kisch plant, a me-
chanic shop, and various offices.
The dispute at issue is limited to the slag/scrap work per-
formed at the AK Steel Middletown location. Slag is a by-
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 cooled, the slag is processed and often sold as an aggre-
gate 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 Con-
struction Co., then International Mill Services, Inc., and then
Tube City Inc. d/b/a Olympic Mill Service. Tube City and
International Mill Services later merged and continued to per-
form 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. 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 pro-
cessing plant which has large hoppers, shakers, and screens that
separate the slag by size. The processed slag is then loaded onto
a dump 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 units: operators, drivers, and laborers. Each unit
performed discrete tasks within its jurisdiction, and each unit
was represented for purposes of collective bargaining by its
respective union. Teamsters Local 100 represents the 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 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

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).
STEIN, INC. 11
company pickup truck. Laborers Local 534 represents the la-
borers. The laborers primarily handle safety, fire watch, manu-
al cleaning, lancing/torching, and knockouts. Lancing/torching
are the processes used used to cut large pieces of metal into
smaller, more manageable pieces. Knockout is the removing of
slag remnants from large pots or cauldrons. IUOE Local 18
represents the 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.
The three separate units historically worked alongside one
another performing their defined tasks. For instance, at the blast
furnace, the operator runs 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 han-
dle safety and fire watch, and help coordinate the staging of
vehicles and equipment. The three units communicate through
two-way radios.
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 Teamsters Local 100, Laborers Local 534,
and IUOE Local 18
For decades, TMS and its predecessors separately recognized
and bargained with Teamsters Local 100, Laborers Local 534,
and IUOE Local 18. Each union has maintained successive
individual collective-bargaining agreements with these contrac-
tors, setting forth the wages, hours, and other terms and condi-
tions of employment covering those employees in their respec-
tive bargaining units.
Laborers Local 534’s most-recent agreement was with Tube
City IMS, LLC, and it is dated March 1, 2013 to August 31,
2016. (Jt. Exh. 6.) In this agreement, Local 534 is recognized
as “the sole and exclusive bargaining agent” for the following
unit (hereinafter referred to as “laborers unit”):
[A]ll general labor work and clean up, laborer-foreman, lanc-
er/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, Mid-
dletown, Ohio facility, excluding all other production and
maintenance employees, office clerical employees, profes-
sional employees, guards and supervisors as defined by [the
Act].
(Jt. Exh. 6, p. 2).7
On around July 29, 2016, John Ponzuric, the director of hu-
man resources for Tube City IMS, and Jerry Bowling, business
manager for Laborers Local 534, extended this agreement until

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.)
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”).
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 exclu-
sive bargaining agent” for “all truckdrivers employed 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] …” (Jt. Exh. 7, p. 1) (hereinafter referred
to as “drivers unit”).8
IUOE Local 18’s most-recent agreement (pre Stein) was
with Tube City IMS, LLC, and it is dated October 1, 2015 to
September 30, 2018. In this agreement, Local 18 is 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 em-
ployees, office clerical employees, professional employees,
guards and supervisors as defined by the [Act].”9 (Jt. Exh. 8, p.
1) (hereinafter referred to as “operators unit”).10
There is no dispute that TMS continued to recognize Labor-
ers Local 534, Teamsters Local 100, and IUOE Local 18 and
applied the terms and conditions of the applicable collective-
bargaining agreement to the applicable unit, until it ceased
performing the slag/scrap work at the Middletown location.
3. Stein bids to replace TMS and initiates contact with IUOE
Local 18
In 2017, AK Steel opened up for competitive bidding the
contract, which would be effective January 1, for the slag/scrap
work at the Middletown location. Stein and TMS are competi-
tors in their industry, and both submitted bids to perform the
work. In August 2017, Stein’s vice president/chief financial
officer, Dave Holvey, learned that Stein was the leading bidder
for the contract. It was Stein’s intention that, if it was awarded
the contract, it would perform the work using one bargaining

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 Octo-
ber 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 equip-
ment operators, non-licensed motorized equipment operators, mechan-
ics/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 supervi-
sors as defined by the Act. (Local 18 Exh. 1.)
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 perform-
ing 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 repre-
sented 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 new collective-bargaining
agreement. (Tr. 189) (GC 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 for the combined unit of drivers, laborers, and
operators. (GC Exh. 5.) At the time Holvey sent this agree-
ment, 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. (GC Exh. 6.) In that
email, Holvey asked that Local 18 put together a communica-
tion sheet to give to those contemplating the move to the Oper-
ating 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.” (GC Exh. 6.) This was sent months before Stein
assumed the AK Steel contract, and months before it had hired
a single employee to perform this slag/scrap work.
At some point, AK Steel officially awarded Stein the
slag/scrap contract, effective January 1. On October 27, 2017,
John Ponzuric of TMS notified Laborers Local 534 that TMS
would not be bargaining with Local 534 for a successor agree-
ment 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, Teamsters Local 100, Laborers Local
534, 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.”
At around this time, Stein began purchasing all of TMS’s
processing plants, buildings, trailers, furniture, fixtures, equip-
ment (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’

11 IUOE Local 18 represented 42 of TMS’s 71 employees. (Jt. Exh.
1.)
operations and its employees.
4. Employee meetings
On November 9, 2017, Huffnagel held meetings with all the
TMS employees performing the slag/scrap work to discuss
employment with Stein. Huffnagel read from the following
document:
Middletown Operations
Start date/hire date-January 1, 2018
All jobs will be under the Operating Engineers Local 18 Un-
ion
It is Stein, Inc.’s goal to hire as many TMS employees as pos-
sible who remain in good standing with TMS through January
1, 2018
Classification and Rates
Group Job description 1/1/2018
1 General Laborer $ 15.00
Mechanic Helper $ 17.50
Lancer $ 21.93
Lube man $ 20.45
Site Laborer/Safety $ 20.93
2 Truck Driver $ 21.12
3 General Operator $ 24.63
Crane Operator $ 24.63
B Mechanic $ 24.63
4 A Mechanic $ 25.00
Hot Pit Operator $ 26.13
Master Mechanic $ 26.25
The following holidays will be observed:
New Year’s Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving day, day after Thanksgiving, & Christmas
day
All questions regarding pension and health & welfare benefit
should be directed to the Operating Engineers union
Seniority for matters including job bids, layoffs and overtime
preference only will be determined on the date you were hired
by TMS regardless of trade. To retain your seniority position
you must commit to employment with Stein by November
20th
All prospective employees will be subject to a 90 day proba-
tionary period, a physical, and a background check
All TMS employees at Middletown will be measured for uni-
forms on Wednesday, November 15th
(Jt. Exh 13.)
Huffnagel told the TMS employees that if they wanted to
work for Stein, they would need to complete an employment
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.)
STEIN, INC. 13
5. November discussions
On November 21, 2017, Stein’s vice president/CFO Dave
Holvey sent IUOE Local 18 business representative Jeff Powell
another email regarding their contract negotiations. Holvey
stated that he had compared the agreement sent to him against
his copy, and they were in agreement. Holvey concluded his
email, “Let’s get this signed soon.” (GC Exh. 7.) Holvey con-
tinued to follow-up by sending emails to Powell prodding him
to execute the agreement. (GC Exhs. 8 and 10.) By December
22, 2017, Stein and IUOE Local 18 both had executed their
collective-bargaining agreement. (G C Exh. 11.) As of that
date, IUOE Local 18 still had not presented Stein with any
authorization cards. (Tr. 206–207.)
In November 2017, James Bowling, a Teamsters Local 100
driver and union steward, met with Huffnagel to introduce him-
self and to ask Huffnagel for his telephone number so that
Teamsters Local 100 business agent Mike Lane could call and
speak with him. Huffnagel gave Bowling one of his business
cards. Bowling then asked Huffnagel if “he was going to go
with all crafts.” Huffnagel responded that he “couldn't say at
this time.” (Tr. 250–251.) Later, Mike Lane called and spoke
to Huffnagel. Lane asked Huffnagel if he intended to negotiate
with the Teamsters and honor the contract in place. Huffnagel
responded that he “didn’t know why not” but added that he
“didn’t really handle that and someone else would get back
with [Lane] on that.” (Tr. 480.) Lane then asked Huffnagel if
Stein will he be hiring Teamster employees that were under
contract and working for TMS, and Huffnagel said he “believed
so, yes.” (Tr. 480.) That was the end of the conversation. No
one contacted Lane following his conversation.
6. Collective-bargaining agreement between Stein and
IUOE Local 18
In Respondents’ collective-bargaining agreement, which is
dated January 1, 2018 through February 28, 2021, Stein recog-
nizes Local 18 as the exclusive collective-bargaining repre-
sentative for all the hourly paid employees in the following job
classifications: general laborer, mechanic helper, lancer, lube
man, site laborer/safety, truckdriver, 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, pp. 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-checkoff provisions, which
state:
5.01 For the duration of this Agreement, it shall be a condi-
tion of continued employment with the Company that present
employees who are members of the Union, and new hires,
within thirty (30) days of actual work, while working within
the bargaining, unit, shall become and remain members of the
Union to the extent of paying an initiation fee, and member-
ship dues uniformly required as a condition of acquiring or re-
taining 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 of acquiring or retaining membership
in the Union.
5.03 Upon notification, by the Union, that a uniform adminis-
trative dues deduction has been authorized by all employees
of the Company, the Company shall deduct said uniform ad-
ministrative dues. The Union shall be responsible for obtain-
ing all individually signed authorizations.
. . .
5.06 The Company, upon written request of the Union, shall
discharge any employee within seven (7) working days after
receipt of such notice who fails to tender the periodic dues,
and initiation fees uniformly required by the Union as a con-
dition of acquiring or retaining membership in the Union.
(Jt. Exh. 16, p. 2.)
Stein never notified Teamsters Local 100 or Laborers Local
534 that it had merged the three units, recognized IUOE Local
18 as the representative of that unit, and/or that it entered into a
contract with Local 18 altering the wages, hours, and other
terms and conditions of employment applicable to the drivers
unit and the laborers unit.
7. Hiring
TMS ceased performing the slag/scrap work for AK Steel at
the Middletown location on December 31, 2017.12 As of that
date, TMS employed 15 drivers represented by Teamsters Lo-
cal 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 applied for jobs to continue
working at the Middletown location. Doug Huffnagel was
present for several of the interviews. He estimated that these
interviews lasted between 5 and 45 minutes each.13

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 appli-
cants he advised them that they would be cross-trained on other duties,
but he did not specify what that cross-training would involve. He testi-
fied that he mentioned this to every applicant he intended to hire. (Tr.
1252–1255.) I do not credit this testimony. There is no other evi-
dence—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 prehearing 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. 1255–1256.) 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
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties have stipulated that on January 1 and/or by Janu-
ary 6, Stein had hired and employed a “substantial and repre-
sentative complement” of employees to perform the slag/scrap
work at AK Steel’s Middletown location. (Jt. Exh. 1.) On Jan-
uary 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, 7 from the drivers unit, and 8 from the laborers unit. By
January 6, Stein hired 4 more, for a total of 60 employees. This
included 56 former TMS employees, consisting of 38 from the
operators unit, 10 from the drivers unit, and 12 from the labor-
ers unit. (Jt. Exh. 1.) Therefore, as of January 2, Stein em-
ployed a majority of the TMS employees from each of the three
bargaining units.
Stein also hired several of TMS’ supervisors (Chadwick
Bare, John Howard, David Marville, and Nathan Prince), as
well as several non-TMS supervisors, including Jason Westov-
er (general foreman) and Jeffrey Porter (site superintendent).
Doug Huffnagel was Stein’s area manager. (Jt. Exh. 18.)
8. Commencement of operations
On January 1, Stein began performing the slag/scrap work
for AK Steel at the Middletown location. Stein used the build-
ings, trailers, furniture, fixtures, trucks, and equipment acquired
from TMS in performing this work, and it acquired some addi-
tional equipment and vehicles. Each of the former TMS em-
ployees hired to work for Stein testified that he continued to
perform the same duties and tasks, using essentially the same
equipment, as when employed by TMS.
As of January 1, Stein began applying the terms of Respond-
ents’ collective-bargaining agreement on all employees per-
forming the slag/scrap work. In addition to the recognition
provision and the bargaining unit description, this agreement
differed in several respects from the terms and conditions in
effect covering the drivers unit prior to January 1. Specifically,
there is no dispute Stein altered or did not continue: weekly
contributions to the Central States Southeast and Southwest
Areas Pension Fund; weekly contributions to the Ohio Confer-
ence of Teamsters & Industry Health & Welfare Fund; 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 defi-
nition and assignment work. (GC Exh. 1.)
9. Requests to bargain
On January 10, Teamsters Local No. 100 sent Stein a letter
demanding recognition and requesting bargaining as the exclu-
sive collective-bargaining representative of the drivers unit. (Jt.
Exh. 14.) After Dave Holvey learned of Local 100’s letter, he
contacted Stein’s legal counsel. After speaking with counsel,
Holvey contacted IUOE Local 18 to request that it provide
authorization cards showing that Local 18 had majority support
among the employees. (Tr. 208.) At some point thereafter,

express purpose of notifying TMS employees about changes Stein
would be implementing once it took over the slag/scrap work.
IUOE Local 18 business representative Jeff Powell provided
Holvey with copies of signed authorization cards from a ma-
jority of the operators hired to perform the slag/scrap work at
AK Steel Middletown. (Local 18 Exh. 3.) All of the signed
authorization cards were dated on or before October 2017, and
none were signed by employees from either the drivers unit or
the laborers unit.
On around February 5, Teamsters Local 100’s attorney, Mat-
thew Crawford, spoke on the telephone with Stein’s attorney,
Keith Pryatel, about Local 100’s demand for recognition and
request for bargaining. Pryatel advised Crawford that Stein
would not recognize and bargain with Local 100, contending
that Local 100’s agreement with TMS/Tube City was an 8(f)
agreement that expired on December 31, 2017. He further
stated Local 18 presented Stein with authorization cards signed
by a majority of the total workforce at the Middletown location
authorizing Local 18 to be their bargaining representative. (Jt.
Exh. 15.)
There is no dispute that Stein has failed or refused to recog-
nize and bargain with Teamsters Local 100.
10. Alleged threats and assistance
Almost immediately after Stein commenced operations, its
supervisors and managers began informing drivers and laborers
that they needed to join IUOE Local 18. On January 3, Stein’s
supervisor, Jason Westover, was in the health and welfare of-
fice 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 benefi-
ciary designation form, a death benefit beneficiary designation
form, and authorization forms for political, educational, and/or
charitable funds. (GC 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). James Bowling, a former
TMS driver represented by Teamsters Local 100 who was hired
by Stein, was present.
On January 17, the International Union of Operating Engi-
neers District 4/5 Office sent Stein’s area manager, Doug Huff-
nagel, an email with a list of IUOE Local 18 members and/or
permit holders who were not in “good standing” based on their
nonpayment 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 who were hired
by Stein and continued working. Huffnagel agreed to hand the
letters out to the employees at issue. (Tr. 221)(GC Exhs. 13
and 14.) There is no evidence as to what, if any, further actions
were taken.
In mid-January, Westover gave a Local 18 permit packet to
Gary Wise, another former TMS driver represented by Team-
sters Local 100 who was hired by Stein. Westover told Wise
that he needed to fill out the packet and join IUOE Local 18;
otherwise he would be taken off the schedule. (Tr. 534–535.)
Westover gave Wise the address for the hall and told him that if
he went there on a Wednesday, there would be someone there
to help him with the packet. (Tr. 535.) Later that week, Wise
went to the IUOE hall and spoke with Local 18 representatives,
STEIN, INC. 15
including Justin Gabbard. Wise explained his concerns about
joining Local 18, the most significant of which being he was
nearing retirement under the Teamsters retirement plan and
would have to work longer in order to retire under the IUOE
plan. Gabbard spoke with Wise, but he ultimately told Wise
that if he did not join Local 18, he would be taken off the
schedule. (Tr. 537.)
In early February, Wise went to the IUOE hall to submit his
packet and pay his fees. While there, Wise spoke with Gabbard
and Richard E. Dalton, IUOE Local 18 business manager.
Wise informed Dalton about his concerns about leaving the
Teamsters and joining IUOE Local 18. Dalton attempted to
address Wise’s concerns by highlighting the benefits of being a
member of the IUOE, namely its well-funded retirement plan.
Wise continued to state his concerns. Dalton eventually told
Wise that he would need to join Local 18; otherwise, he would
be taken off the schedule. (Tr. 543–545.)14
In mid-February, during a morning meeting, Westover told
Bowling and other employees that if they did not complete and
submit their permit packets to IUOE Local 18, they would be
taken off the schedule. (Tr. 263.) Westover also stated that the
Local 18 field representative would be out at the facility to talk
to employees. (Tr. 263–264.) A few days later, an unidentified
Local 18 representative came out to the jobsite and talked to
employees, but not to Bowling. Bowling later told Westover
that the representative had not spoken to him. Westover then
left to talk with the representative. When Westover returned,
he told Bowling he told the representative, "Here, give me your
permit packets. I will do your job." Westover then passed out
the packets to those who needed one. (Tr. 267.)
Also, in February, Local 18 Business representative Justin
Gabbard came to the jobsite to pass out envelopes to employ-
ees. (Tr. 223.) Gabbard was not able to see every employee on
his list, so he left the remaining envelopes with Doug Huffnagel
and asked him to distribute them to the correct employees. (Tr.
224–225). Huffnagel agreed to do so. Huffnagel also permit-
ted Gabbard to come back out to the jobsite another time to
distribute additional envelopes to employees. (Tr. 225.)
In mid-February or early March, Stein’s site superintendent,
Jeff Porter, told laborers and drivers present in the health and
welfare office at the AK Steel Middletown location that “if you
guys don’t get signed up with Local 18 Operating Engineers,
we’re going to have to take you off the schedule until you do.”
Oba Venters, a former TMS laborer represented by Laborers
Local 534 hired by Stein, was present and testified about Por-
ter’s statement. (Tr. 466–467.)15

14 Both Wise and Dalton testified about this conversation, and Dal-
ton denied threatening Wise that he would be taken off the schedule if
he did not join IUOE Local 18. I credit Wise over Dalton. Wise struck
me as a more honest and forthright witness who had a clearer recollec-
tion of the contents of this conversation. Additionally, Dalton’s state-
ments are consistent with Gabbard’s statement to Wise, as well as the
statements of Stein’s supervisors to several of the employees who were
told they needed to join Local 18.
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
11. Cross-training
As stated, when Doug Huffnagel began working at the Mid-
dletown jobsite in the fall 2017, he observed TMS’s operations
and the employees performing the work. In Huffnagel’s opin-
ion, there were certain inefficiencies with how the work was
performed, specifically as it related to the strict adherence to
the work jurisdiction among the three bargaining units. In or-
der to reduce or eliminate these inefficiencies, Huffnagel’s
intention was to cross-train employees to perform tasks outside
their traditional job duties.
In the days, weeks, and months after Stein took over the
slag/scrap work, it began cross-training a few employees to
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 cer-
tain 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 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.
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 Jan-
uary 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-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 Jan-
uary 8, Michaels was trained and occasionally running a back-
hoe. The following day, he was running skid steers. He con-
tinued to perform these tasks throughout January. By February
11, Michaels was trained and assigned to operate the tele-
handler. 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 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 compa-
ny pickup trucks. As of February 8, Neace was trained and
assigned to run the processing plants. That became his primary
assignment.

adverse inferences are unnecessary because the credited testimony is
uncontradicted.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Michael Young is a former TMS laborer that Stein hired. In
March, Stein began cross-training Young to perform certain
tasks outside his traditional laborer job duties, such as operating
bobcats and operating off-road dump trucks, in addition to his
traditional laborer duties. Michael Kingery is a former TMS
operator that Stein hired. In early March, Kingery was trained
and began operating the off-road dump trucks. He also per-
formed manual labor work, such as shoveling. He performed
these tasks in addition to his traditional operator duties.
IV. CONTENTIONS OF THE PARTIES
The primary issues are whether Stein is a lawful successor to
TMS, and, if so, whether it had the right to unilaterally set ini-
tial terms and conditions of employment for the employees in
the drivers 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
Teamsters Local 100 as the exclusive bargaining representative
of the drivers unit; by failing to apply and unilaterally changing
the terms and conditions of employment applicable to the driv-
ers unit; by unlawfully recognizing and entering into, maintain-
ing, and enforcing a collective-bargaining agreement with
IUOE Local 18 as the representative of the drivers unit when
Local 18 did not enjoy support from a majority of the employ-
ees in that unit; by maintaining and enforcing the union-
security and dues-checkoff provisions in that agreement; by
conditioning employment upon employees joining and becom-
ing members of IUOE Local 18; and by rendering unlawful
assistance when Local 18 did not enjoy unassisted and unco-
erced support among a majority of the employees in the drivers
unit. For its role in the above-cited unlawful conduct, and by
threatening employees to get them to join and pay dues and
fees, the General Counsel also alleges that IUOE Local 18 vio-
lated Section 8(b)(1)(A) and (b)(2) of the Act.
Respondents contend Stein is not a successor to TMS and
had no obligation to recognize and bargain with Teamsters
Local 100. They further argue that IUOE Local 18 was lawful-
ly 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.
V. LEGAL ANALYSIS
A. Stein is a successor to TMS and, therefore, obligated to
recognize and bargain with Teamsters Local 100 as the exclu-
sive collective-bargaining representative of the drivers unit
1. Precedent
Under NLRB v. Burns Security Services, 406 U.S. 272, 281–
295 (1972),16 the union’s majority status is presumed to contin-

16 In Burns, the William T. Burns International Detective Agency re-
placed Wackenhut Corporation as the security contractor for Lockhead
at one of its plants. Burns hired 27 Wackenhut employees in June, and,
in offering them employment, explained that it could not live with the
existing contract between Wackenhut and the United Plant Guard
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 em-
ue, and the successor is obligated to bargain with the union(s)
representing the predecessor’s employees, when: (1) there is
substantial continuity between the two enterprises, (2) the suc-
cessor 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).
In Fall River Dyeing, the Supreme Court held the presump-
tion of majority support is particularly pertinent in the succes-
sorship situation because:
During a transition between employers, a union is in a peculi-
arly vulnerable position. It has no formal and established bar-
gaining relationship with the new employer, is uncertain
about the new employer's plans, and cannot be sure if or when
the new employer must bargain with it. While being con-
cerned 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 majori-
ty status to which it is entitled to safeguard 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 em-
ployees find themselves in a new enterprise that substantially
resembles the old, but without their chosen bargaining repre-
sentative, they may well feel that 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 inclined to blame the union for their layoff and
problems associated with it. Without the presumptions of ma-
jority support and with the wide variety of corporate trans-
formations possible, an employer could use a successor enter-
prise as a way of getting rid of a labor contract and of exploit-
ing the employees' hesitant attitude towards the union to elim-
inate its continuing presence.
Id. at 41 (footnote omitted).
The Court also emphasized that the successorship doctrine
“safeguard[s] the rightful prerogative of owners independently
to rearrange their businesses.” Fall River Dyeing, 482 U.S. at
40 (internal quotations omitted). The successor is “under no
obligation to hire the employees of its predecessor, subject, of

ployees 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 obligat-
ed to honor its contract with Wackenhut.
STEIN, INC. 17
course, to the restriction that it not discriminate against union
employees in hiring.” Id. Thus, the applicability of the succes-
sorship doctrine rests in the hands of the new employer: if the
new employer makes a conscious decision to maintain general-
ly the same business and take advantage of the trained work
force of its predecessor by hiring a majority of them, then it has
an obligation to recognize and bargain with their representative.
Id. at 40–41.
a. Substantial continuity
The first inquiry is whether there is a “substantial continuity”
between Stein and TMS in the performance of the slag/scrap
work at the AK Steel Middletown location. Fall River Dyeing,
482 U.S. at 43. This is based upon the totality of the circum-
stances and requires the Board focus on whether the new entity
has taken over substantial assets of the predecessor and “con-
tinued, without interruption or substantial change, the predeces-
sor’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) 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 pro-
duction 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 view their job situations as
essentially unaltered.” Id. (quoting Golden State Bottling Co.,
supra at 184).
In applying these factors, I find there is substantial continuity
exists between Stein and TMS. The two are competitors, both
engaged in the business of slag/scrap work at locations
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 property and assets
(except for the computer equipment) used to perform the
slag/scrap work. And there was no hiatus in operations: a ma-
jority of the employees ended their employment with TMS on
December 31, 2017, and began their employment with Stein on
January 1. Although Stein changed the work schedules, pur-
chased additional equipment, hired several new supervisors,
and later began cross-training certain employees to perform
new and different duties (discussed below), each of the em-
ployees who testified confirmed that, from their perspective,
they continued performing the same work in substantially the
same manner as performed prior to January 1, just for a differ-
ent employer. See Empire Janitorial Sales & Services, LLC,
364 NLRB No. 138 (2016)(finding substantial continuity even
though successor hired new supervisors and maintenance em-
ployees 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, Inc., 362
NLRB 365, 371 (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 pro-
vided 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
the successor provided the same services to the same set of
customers and with the same equipment, with no hiatus in op-
erations, 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' employees worked).
Based on the totality of the circumstances, I find the drivers and
laborers would understandably view their job situations as es-
sentially unaltered.
b. Hired a majority of predecessor’s employees
The second inquiry is whether Stein hired as majority of its
work force 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 predecessor’s work force. 406 U.S. at 272. In
Fall River Dyeing, the successor took over and began opera-
tions after a hiatus that lasted several months. The new employ-
er 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:
[i]n other situations, as in the present case, there is a start-up
period by the new employer while it gradually builds its oper-
ations and hires employees. In these situations, the Board,
with the approval of the Courts of Appeals, has adopted the
“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 employees had been
employed by its predecessor, then the successor has an obliga-
tion to bargain with the union that represented these employ-
ees.
482 U.S. at 47 (footnotes omitted).
In Fall River Dyeing, the Court approved as reasonable the
Board’s substantial and representative complement rule, which
evaluates the successor’s bargaining obligation when a substan-
tial and representative complement of employees is hired.17 A

17 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
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
substantial and representative complement of employees will be
found to exist at the point at which an employer’s job classifi-
cations are substantially filled, its operations are in substantially
normal production, and it does not reasonably expect to in-
crease the number of unit employees. Fall River Dyeing, 482
U.S. at 49.
Without distinguishing the extended startup 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 general-
ly, with the requirement that a bargaining demand is necessary
to trigger the successor’s duty to bargain. See, e.g., Ports
America Outer Harbor, supra slip op. at 2; Jamestown Fabri-
cated Steel and Supply, Inc., 362 NLRB 1314 (2015); A.J. My-
ers & 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. Cadil-
lac 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).18
As stated, the parties 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 Middletown location, and the
evidence establishes that a majority of those employees previ-
ously worked for TMS. In fact, it was by January 2 that Stein
had hired and employed as a majority of its work force a major-
ity of the former TMS employees from each of the three bar-
gaining units. On January 10, Teamsters Local 100 made its
written demand for recognition and request for bargaining. As
a result, I find that by at least January 10, Stein had an obliga-
tion to recognize and bargain with Local 100 as the exclusive
representative of the drivers unit.

bargaining representative.” 482 U.S. at 48–49 (internal quotation marks
omitted). That is precisely the situation here.
18 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); Ponti-
ac 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, rec-
ognize 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 Teamsters Local
100 to demand recognition/request bargaining, because Stein’s recogni-
tion of IUOE Local 18, and the implementation of the changes to the
terms and conditions of employment, were a fait accompli.
b. Appropriateness of Unit
The third inquiry is whether the bargaining unit of the prede-
cessor remains appropriate for the successor. See Banknote
Corp. of America, 315 NLRB 1041, 1043 (1994), enfd. 84 F.3d
637 (2d Cir. 1996), cert. denied 519 U.S. 1109 (1997); and
Paramus Ford, 351 NLRB at 1023. In Burns, supra, the Su-
preme Court found that the successor employer (Burns) was
obligated to bargain with the union that represented the em-
ployees of the predecessor (Wackenhut), but it observed that:
“It would be a wholly different case if the Board had deter-
mined 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 280. The
Board’s longstanding policy is that a “mere change in owner-
ship should not uproot bargaining units that have enjoyed a
history of collective bargaining unless the units no longer con-
form reasonably well to other standards of appropriateness.”
Cadillac Asphalt Paving Co., 349 NLRB 6, 9 (2007); and Indi-
anapolis Mack Sales & Service, 288 NLRB 1123, 1126
(1988)(historical unit likely appropriate if the predecessor em-
ployer recognized it, even if the unit would not be appropriate
under Board standards if it were being organized for the first
time). A party challenging a historical unit bears the heavy
burden of showing that the unit is no longer 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 to Board policy[;] “that “com-
pelling circumstances” are present that “overcome the signifi-
cance of bargaining history[;]” that the unit is “so constituted
as to hamper employees in fully exercising rights guaranteed
by the Act[;]” or that the historical units no longer “‘conform
reasonably well to other standards of appropriateness.’”
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 meas-
ured at the time the bargaining obligation attaches. Cadillac
Asphalt Paving Co., 349 NLRB at 9.
Respondents argue as result of the cross-training and as-
signment 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
units into a larger single unit in the successorship context as a
result of cross-training. In that case, after the successor ac-
quired the facility, it met with the unions to advise them it in-
tended 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 inter-
views that they would be asked to perform additional tasks
outside their normal job duties. Thereafter, the successor cross-
trained and assigned certain employees to perform sporadic and
occasional duties across unit lines. The Board found the evi-
STEIN, INC. 19
dence was largely conclusory, and while certain of the succes-
sor'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 ulti-
mately held the successor failed to establish that the historical
units were no longer appropriate, particularly where many of
the changes in job duties occurred after the bargaining obliga-
tion 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. See Dodge of Naperville, 357 NLRB 2252, 2253–
2254 (2012) (“In determining whether an established bargain-
ing unit retains its distinct identity, we do not consider the ef-
fects 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).
Second, none of the employees who were cross-trained or
assigned cross-jurisdictional work were drivers. As for the rest,
those assignments did not occur on such a regular and wide-
spread basis as to alter the appropriateness of the three histori-
cal units. The record reflects that only 5 laborers and 1 opera-
tor (Venters, Young, Wilhoite, Michaels, Neace, and Kingery)
were cross-trained and performing some cross-jurisdictional
work before the end of March.19 Two of the 6 did not begin
performing cross-jurisdictional work until March, well after the
bargaining obligation attached. Of the remaining 4 employ-
ees—all laborers—3 began performing limited cross-
jurisdictional work prior to Teamsters Local 100’s January 10
demand for recognition/request for bargaining. In other words,
only 3 out of the 60 employees Stein hired were cross-trained
and performing cross-jurisdictional work as of the date the
bargaining obligation attached. Moreover, based on the evi-
dence, these employees continued to spend a majority of their
work time performing their traditional job duties, at least

19 At the hearing, I allowed Respondents to introduce evidence relat-
ed 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 recog-
nition/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 com-
pelling circumstances that made the historical units no longer appropri-
ate. 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 postdate Teamsters Local 100’s de-
mand for recognition/bargaining--are irrelevant, as is the testimony
regarding cross-training and assignment of work after March. That
evidence is hereby stricken.
through February. Consequently, I find that as of the January
10 date the bargaining obligation triggered, Respondent failed
to present compelling circumstances that the separate drivers
unit was no longer appropriate, or that the unit was repugnant
to Board policy or hampered employees’ exercise of their rights
guaranteed by the Act.
Respondents cite to Border Steel Rolling Mills, Inc., 204
NLRB 814, 821 (1973), for support of its contrary position. In
that case, the employer acquired a truck repair/maintenance
business and hired its employees who were represented by the
Teamsters. The employer already had employees who per-
formed 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 employer created a new depart-
ment 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 plantwide
Steelworkers unit. The Board held the merger was lawful,
because the Teamsters unit had become completely functionally
integrated as result of these changes that it no longer main-
tained a separate identity.
Border Steel is distinguishable from this case. It involved
the addition of a new classification of employees who per-
formed 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, the employ-
er 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 wide-
spread 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 their separate identities.
In light of the evidence, I find that since January 1, Stein re-
placed TMS as the contractor performing the slag/scrap work at
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 drivers unit. Stein, therefore, is TMS’s
successor and inherits its recognitional and bargaining obliga-
tions toward Teamsters Local 100.
2. Respondents’ 9(a) and 8(f) Defenses
Respondents contend that even if Stein is a successor to
TMS, it had no obligation to bargain with Teamsters Local 100
because there is no evidence of a Board election/certification or
a voluntary recognition based on evidence of majority support,
establishing that Teamsters Local 100 is the Section 9(a) repre-
sentative of the drivers unit. The record contains the 2010-2013
and 2013–2016 agreements between Local 100 and Tube City
IMS, LLC, and the 2016–2017 agreement between Local 100
and TMS. All three recognize Local 100 as the sole and exclu-
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sive bargaining agent of the drivers unit. In Barrington Plaza
& Tragniew, Inc., 185 NLRB 962 (1970), enfd. in part 470 F.2d
669 (9th Cir. 1972), the Board held that in a refusal-to-bargain
case involving a previously recognized union, the requisite
proof of majority status need not take the form of a Board certi-
fication or card showing:
The existence of a prior contract, lawful on its face, raises a
dual presumption of majority—a presumption that the union
was the majority representative at the time the contract was
executed, and a presumption that its majority continued at
least through the life of the contract.
Following expiration of the contract, this presumption contin-
ues and is not dependent on independent evidence that the
bargaining relationship was originally established by a certifi-
cation or majority card showing. The presumption applies not
only to a situation where the employer charged with a refusal
to bargain is itself a party to the preexisting contract, but also
to a successorship situation such as we have here. The burden
of rebutting this presumption rests, of course, on the party
who would do so. It is true that a labor organization's continu-
ing majority may not be questioned during the term of a con-
tract. On the other hand, upon expiration thereof, the pre-
sumption of majority arising from a history of collective bar-
gaining 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 con-
siderations that it has some reasonable grounds for believing
that the union has lost its majority status. . . .”
Id. at 963 (internal footnotes omitted).20
Furthermore, assuming there was some defect in the recogni-
tion established by these prior agreements, the Board has held
that a successor may not attack a union's initial recognition by
the predecessor when that recognition was beyond the Section
10(b) 6-month limitations period. Eye Weather, 325 NLRB
973 (1998), citing Machinists Local 1424 (Bryan Mfg. Co.) v.
NLRB, 362 U.S. 411 (1960) (respondent may not defend
against a 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 un-
lawful.). See also Red Coats Inc., 328 NLRB 205, 206–207
(1999) (employer may not defend against a refusal-to-bargain
allegation on the basis that the original recognition of the union
was unlawful, where that recognition occurred more than 6
months before the charges raising the issue had been filed);
Sewell-Allen Big Star, 294 NLRB 312, 313–314 (1989) (same).
As stated, Local 100 has been recognized as the exclusive bar-

20 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 predate 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 labor-
ers unit. Therefore, since none of those employees designated Local 18
to be their bargaining representative, there is no evidence of loss a
majority support.
gaining representative of the unit of drivers since at least 2010,
and there is no evidence of any timely challenge to that status.
Citing to Davenport Insulation, 184 NLRB 908 (1970), Re-
spondents argue that Local 100’s relationships with these pre-
decessor contractors were all under Section 8(f) of the Act;
therefore, Stein had no obligation to recognize or bargain after
the most recent contract expired on December 31, 2017. The
Board has held that when the parties’ bargaining relationship is
governed by Section 8(f), either party is free to repudiate the
relationship and decline to negotiate or adopt a successor
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 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
However, the plain reading of Section 8(f) of the Act reveals
that it is only applicable to “an employer engaged primarily in
the building and 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 em-
ployees 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 ex-
ception. Bell Energy Management Corp., 291 NLRB 168, 169
(1988); and Hudson River Aggregates, 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 con-
tractors 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
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.” Team-
sters 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.21
Respondents largely ignore their evidentiary burden and, in-
stead, focus on contractual language to support their argu-
ments.22 They argue that the Teamsters Local 100 agreement

21 Even 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 Sec. 8(f) of the Act).
22 Stein argues that one of TMS’s predecessors, McGraw Construc-
tion 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 juris-
dictional purposes, found to have been engaged primarily in the build-
ing 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 contrac-
STEIN, INC. 21
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 fore-
most, intent is irrelevant if the employer and employees at issue
are not engaged primarily in the building and construction in-
dustry. 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 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 agree-
ments, 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,
such a provision does not render the entire contract unenforcea-
ble. In Royal Components, Inc., 317 NLRB 971, 972–973
(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 member-
ship 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 contention that the
union lacked majority status at the time the contract was exe-
cuted since the asserted lack of majority status was not chal-
lenged within the 6-month period from the time the contract
was executed. See also Raymond F. Kravis Center for Per-
forming 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).
As such, I find Teamsters Local 100 is, and has been, the
9(a) representative of the drivers unit.
3. Conclusion
As the lawful successor to TMS, Stein was obligated to rec-
ognize and bargain with Teamsters Local 100 as the 9(a) bar-
gaining representative of the drivers unit. By their conduct, I
find Stein violated Section 8(a)(5), (3), (2), and (1) of the Act,
and IUOE Local 18 violated Section 8(b)(1)(A) and (b)(2) of
the Act, as alleged in the amended consolidated complaint. See
generally, Ports America Outer Harbor, supra; Regency
Grande Nursing & Rehabilitation. Center, 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
January 10, when it refused Local 100’s demand for recogni-
tion/request for bargaining. Stein also violated Section 8(a)(2)

tor on an unrelated project falls well short of meeting the burden of
establishing that Stein, TMS, or any of the other predecessor contrac-
tors were engaged primarily in the building and construction industry
while performing the slag/scrap work at AK Steel’s Middletown loca-
tion.
and (1) since about October 12, 2017, when it recognized IUOE
Local 18 as the exclusive bargaining representative of the em-
ployees in the drivers 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 majority
of the employees in that unit. The agreement sets forth the
terms and conditions of employment applicable to the employ-
ees in the drivers unit, including union-security and dues-
checkoff provisions. By maintaining and enforcing these pro-
visions, Stein violated Section 8(a)(3) and (1) of the Act be-
cause it unlawfully encouraged employees in the drivers unit to
join and pay dues to Local 18 at a time when it was not lawful-
ly 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 employees in the driv-
ers unit, by entering into, maintaining, and enforcing the terms
of Respondents’ collective-bargaining agreement, and by re-
ceiving dues and fees from the employees in the drivers unit, at
a time when it did not lawfully represent those employees.
B. Stein forfeited its right as a successor to set the initial terms
and conditions of employment applicable to the drivers 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 initial terms and conditions of employment.23
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 appro-
priate to have him initially consult with the employees' bargain-
ing 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 “per-
fectly clear” caveat in Burns as “restricted to circumstances in

23 Under Burns, supra, a successor employer is permitted to set ini-
tial terms only to the extent encompassed by Sec. 8(d) of the Act. That
does not include the right to change the scope or composition of the
bargaining unit. SFX Target Center Arena Management, LLC, 342
NLRB 725, 735 (2004). Parties, therefore, cannot be compelled to
bargain to impasse over such changes. See Bozzuto's, Inc., 277 NLRB
977 (1985), and Newspaper Printing Corp. v. NLRB, 625 F.2d 956,
964–965 (10th Cir. 1980), cert. denied 450 U.S. 911 (1981). If they
were, an employer could “use its bargaining power to restrict (or ex-
tend) the scope of union representation in derogation of employees’
guaranteed right to representatives of their own choice.” Idaho States-
man 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 succes-
sor-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.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which the new employer has either actively or, by tacit infer-
ence, misled employees into believing they would all be re-
tained without change in their wages, hours, or conditions of
employment, or at least to circumstances where the new em-
ployer . . . 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).24 In this
case, each of the employees who testified confirmed that Huff-
nagel advised them during 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 sub-
jected to a physical, drug test, and background check—and
there were no guarantees of employment. Huffnagel also an-
nounced that there would be several significant changes to their
wages, hours, and other terms and conditions of employment.
As a result, I find Stein is not a “perfectly clear” successor, and,
thus, theoretically permitted to set initial terms and conditions
of employment.
The Board, however, has held that a successor may forfeit its
right to unilaterally set initial terms and conditions of employ-
ment by engaging in concomitant unfair labor practices. See,
e.g., Galloway School Lines, Inc. 321 NLRB 1422 (1996) (suc-
cessor forfeited right to set initial terms by violating Section
8(a)(3) with unlawful hiring plan designed to avoid having to
recognize the collective-bargaining representative of the prede-
cessor's employees; as a remedy, ordered to restore and main-
tain 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 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 Sec-
tion 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 Interna-
tional, 323 NLRB 529 (1997), enfd. in relevant part 233 F.3d
1176 (9th Cir. 2000), on remand 336 NLRB 1153
(2001)(same).
In Advanced Stretchforming, the successor employer ac-
quired the assets of the bankrupt predecessor and told the em-
ployees 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-

24 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).
will basis. In finding a violation, the Board held:
The fundamental premise for the forfeiture doctrine is that it
would be contrary to statutory policy to “confer Burns rights
on an employer that has not conducted itself like a lawful
Burns successor because it has unlawfully blocked the process
by which the obligations and rights of such a successor are in-
curred.” [State Distributing Co., 282 NLRB at 1049]. In other
words, the Burns right to set initial terms and conditions of
employment must be understood in the context of a successor
employer that will recognize the affected unit employees' col-
lective-bargaining representative and enter into good-faith ne-
gotiations with that union about those terms and conditions.
. . .
At the time of successorship, however, the Respondent did
not conduct itself like a lawful Burns successor. At this unset-
tling time of transition, when “a union is in a peculiarly vul-
nerable position” and employees “might be inclined to shun
support for their former union, especially if they believe that
such support will jeopardize their jobs with the successor,” the
Respondent unlawfully declared . . . that there would be no
union for those whom it hired. Fourteen days later, the Re-
spondent 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 employ-
ees’ representative.
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 unlaw-
ful condition and still retain the unilateral right to determine
other legitimate initial terms and 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 Distrib-
uting, 282 NLRB at 1049.
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
agree. Under Burns, a successor’s right to unilaterally set ini-
tial 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 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,
STEIN, INC. 23
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 recognizing Local 18 as the exclu-
sive bargaining representative for the merged unit, when Local
18 did not represent a majority of the employees in the drivers
or laborers units, and when Stein had not yet hired a single
employee to perform the slag/scrap work. As stated, Stein’s
conduct violated Section 8(a)(2) and (1) of the Act. Following
this unlawful recognition, Stein began pressing Local 18 to
execute their agreement quickly, so the new terms and condi-
tions could be implemented once Stein commenced operations.
Later, on November 9, 2017, Stein, through Huffnagel, in-
formed all TMS employees that if they were hired by Stein
their work would fall under Local 18’s jurisdiction, which ef-
fectively informed the drivers and laborers that Stein would
unlawfully refuse its obligation under Burns to recognize and
bargain with their chosen representatives. This statement vio-
lates 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 blatant-
ly coerces employees in the exercise of their Section 7 rights to
bargain collectively through a representative of their own
choosing and constitutes a facially unlawful condition of em-
ployment).25 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

25 Although Huffnagel communicated Stein’s intentions to the TMS
employees during the November 9 meetings, I find he “actively or, by
tacit inference, misled” Teamsters Local 100 regarding the company’s
intentions. Spruce Up Corp., 209 NLRB at 195. Specifically, in No-
vember 2017, Local 100 steward James Bowling asked Huffnagel if
Stein “was going to go with all crafts.” Huffnagel said he “couldn't say
at this time.” Later, Local 100 business agent Mike Lane asked Huff-
nagel if Stein intended to negotiate with the Teamsters and honor the
contract in place, and Huffnagel said he “didn’t know why not” but he
“didn’t really handle that and someone else would get back with [Lane]
on that.” Although Huffnagel was not present for the negotiations
between Stein and IUOE Local 18, he knew what was occurring. He
was copied on the October 12, 2017 email Stein sent to Local 18 with
the draft of the contract, which clearly identified Local 18 as the bar-
gaining representative for all trades and set forth new terms and condi-
tions of employment. (GC Exh. 5). He also was copied on the October
23, 2017 email Stein sent to Local 18 with the marked-up copy of the
contract, containing the agreed-upon changes. (GC Exh. 6.) Huffnagel
had both documents before speaking with Bowling or Lane; yet, he
gave the responses that he did.
Additionally, despite Huffnagel’s statement that someone from Stein
would get back to Lane about the company’s intentions, no one did.
The first time Stein communicated with Local 100 was on February 5,
when Stein’s attorney spoke to Local 100’s attorney about the January
10 written demand for recognition and request for bargaining. In this
conversation, Stein’s attorney refused to recognize and bargain with
Local 100, relying, in part, upon Stein’s orchestrated, unlawful recogni-
tion of Local 18—a recognition based on authorization cards submitted
after Local 100 made its January 10 written demand for recogni-
tion/request for bargaining. What’s more, all of the cards presented
were signed by operators; none by anyone in the drivers unit or laborers
unit.
unit’s bargaining representative, even though Stein still had not
received evidence that Local 18 had majority support among
any of the three units, and before Stein had hired a substantial
and representative compliment of employees. In fact, as of
January 1, when Respondents began applying the terms of their
collective-bargaining agreement to all employees, Stein still
had not been presented with evidence that Local 18 had majori-
ty support among any of the three units.
Stein argues that applying the forfeiture doctrine in this case
would be inconsistent with the holding in Burns. I reject this
argument. As stated, under Burns, a successor employer is not
bound by the substantive terms of a collective-bargaining
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 work force until after the suc-
cessor has hired a substantial and representative complement of
employees. Burns, 406 U.S. at 295. In reaching this conclu-
sion, 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 rem-
edy 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 change could be
inferred.” 406 U.S. at 295.26 Stein, however, is not a tradition-
al Burns successor; it is not a stranger to this unit or uninvolved
with the establishment of the terms and conditions of employ-
ment. On the contrary, Stein fabricated this bargaining unit by
merging three separate, appropriate units, hand-picked the
unit’s bargaining representative, and determined the terms and
conditions of employment, 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 permit-
ted 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 uni-
laterally set initial terms and conditions of employment by the
serious nature of its unfair labor practices prior to January 1.
Thus, I find Stein violated Section 8(a)(5) and (1) of the Act
since January 1 when it failed to continue the terms and condi-
tions of employment set forth in the Teamsters Local 100 con-
tract with TMS and by unilaterally changing the following
mandatory subjects of bargaining: weekly contributions to the
Central States Southeast and Southwest Areas Pension Fund;
weekly contributions to the Ohio Conference of Teamsters &

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.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Industry Health & Welfare Fund; wage rates; shift differential;
overtime payments in excess of 8 hours per day; vacation pay;
work schedule; call outs or unscheduled overtime outside of the
regular or established shifts; seniority provisions; safety equip-
ment and protective clothing; and definition and assignment
work.27
C. Stein threatened employees and unlawfully assisted or sup-
ported IUOE Local 18
An employer violates Section 8(a)(1) of the Act if it threat-
ens 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 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 allow-
ing that union to come to the employer’s property to tell em-
ployees that they need to become members. See Emerald
Green Building Services, supra. Brown Transport Corp., supra.
Based on the unrefuted evidence, I find that Respondent,
through Jason Westover violated Section 8(a)(1) and (2) of the
Act, when he unlawful assisted IUOE Local 18 on around Jan-
uary 3 and in mid-February by distributing membership appli-
cations and check off authorizations on behalf of Local 18 to
employees in the drivers 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 behalf
of Local 18. Similarly, I find based on the unrefuted evidence
that Jeff Porter violated Section 8(a)(1) of the Act when he
threatened employees in about mid-February or early March,
that they would be removed from the work schedule if they did
not complete and submit the membership application and check
off authorization on behalf of Local 18.
D. IUOE Local 18 threatened employees and received unlaw-
ful assistance and support
A union violates Section 8(b)(1)(A) of the Act if it threatens
an employee with job loss in order to coerce him or her to join
the union. See Communication Workers Local 1101 (New York
Telephone), 281 NLRB 413, 417 (1986); and Laborers Local
806, 295 NLRB 941 fn. 2 (1989), enfd. mem.974 F.2d 1343
(9th Cir. 1992). As stated, I find that IUOE Local 18, through
Justin Gabbard and Richard E. Dalton, separately threatened
Gary Wise that he would be taken off the schedule if he did not

27 As previously stated, it was Stein’s unlawful unilateral changes to
the definition and assignment of work 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.
join Local 18, in violation of Section 8(b)(1)(A) of the Act.
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 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.
CONCLUSIONS OF LAW
1. Stein, Inc. (Stein) is a contractor performing the scrap
reclamation, slag removal, and processing of slag (“slag/scrap
work”) for AK Steel at its Middletown, Ohio location, and is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers (IUOE) Local
18 (IUOE Local 18) and Truck Drivers, Chauffeurs and Help-
ers Local Union No. 100, affiliated with the International
Brotherhood of Teamsters (Teamsters Local 100) are labor
organizations within the meaning of Section 2(5) of the Act.
3. The following unit of employees (hereinafter “drivers
unit”) is appropriate within the meaning of Section 9(b) of the
Act:
All truck drivers employed by [Stein] at its AK Steel, Mid-
dletown, Ohio facility, excluding all other production and
maintenance employees, office clerical employees, profes-
sional employees, guards and supervisors as defined by the
Act.
4. Teamsters Local 100 is and, at all material times, has
been the recognized collective-bargaining representative of the
drivers unit within the meaning of Section 9(a) of the Act.
5. Since January 1, 2018, Stein has been the successor em-
ployer to TMS International, Inc. (TMS) when it assumed the
contract to perform the slag/scrap work for AK Steel at its
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 drivers unit.
6. The most recent collective-bargaining agreement cover-
ing the terms and conditions of employment for the drivers unit
is dated April 1, 2016 to December 31, 2017 (hereinafter re-
ferred to as “Teamsters Local 100 collective-bargaining agree-
ment”).
7. Stein violated Section 8(a)(1) of the Act when it informed
all potential applicants from TMS, including from the drivers
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 em-
ployees in the drivers unit, and on December 22, 2017, when it
entered into a collective-bargaining agreement with IUOE Lo-
cal 18, and since January 1, 2018, when it began maintaining
and enforcing the terms of that agreement, including the union-
security and dues-checkoff provisions, on employees in the
drivers unit, at a time when Local 18 did not represent an unas-
STEIN, INC. 25
sisted and uncoerced majority of the employees in that unit, and
those employees were represented for collective-bargaining
purposes by Teamsters Local 100.
9. (a) Stein forfeited its right to set initial terms and condi-
tions of employment for the employees in the drivers 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 condi-
tions of the collective-bargaining agreement referred to in para-
graph 8 on the drivers unit; and
(b) by unilaterally changing the existing terms and condi-
tions of employment, contained in the collective-bargaining
agreement referred to above in paragraph 6, including: weekly
contributions to the Central States Southeast and Southwest
Areas Pension Fund; weekly contributions to the Ohio Confer-
ence of Teamsters & Industry Health & Welfare Fund; 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 the
definition and assignment work.
10. Stein violated Section 8(a)(3) and (1) of the Act by
maintaining and enforcing the union-security and dues-
checkoff provisions referred to above in paragraph 8 on em-
ployees in the drivers unit, when Local 18 did not represent an
unassisted and uncoerced majority of the employees in the
drivers unit.
11. Stein violated Section 8(a)(5) and (1) of Act since Janu-
ary 1, 2018, and/or at least January 10, 2018, when it failed and
refused Teamsters Local 100’s requests for recognition and
bargaining as the 9(a) bargaining representative of the drivers
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 distribu-
tion of, membership applications and dues-checkoff authoriza-
tions to employees in the drivers unit; and violated Section
8(a)(1) of the Act by threatening or otherwise coercing employ-
ees in the drivers 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.
13. 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 drivers unit,
by entering into, 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
drivers unit, when IUOE Local 18 did not represent an unas-
sisted and uncoerced majority of the employees in the drivers
unit.
14. IUOE Local 18 violated Section 8(b)(1)(A) of the Act
when its agents threatened employees in the drivers 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 employ-
ees in the drivers unit.
15. IUOE Local 18 violated Section 8(b)(1)(A) of the Act
by receiving assistance and support from Stein by being al-
lowed on the jobsite to distribute membership applications and
dues-checkoff authorization cards to employees in the drivers
unit.
16. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Stein and IUOE Local 18 have engaged in
certain unfair labor practices, I shall order them to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Stein is ordered to withdraw recognition from IUOE Local
18 as the collective-bargaining representative of the employees
in the drivers 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, to the em-
ployees in the drivers unit, when IUOE Local 18 did not repre-
sent an unassisted and uncoerced majority of the employees in
that unit Likewise, IUOE Local 18 is ordered to cease accept-
ing Stein’s recognition as the representative of the employees in
the drivers unit, when IUOE Local 18 does not represent an
unassisted and uncoerced majority of the employees in that
unit.
Stein also is ordered to recognize and bargain with Team-
sters Local 100 as the exclusive bargaining representative of the
employees in the drivers 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 shall, upon request of Teamsters Local 100, rescind any
departure from the terms and conditions of employment that
existed before January 1, 2018, and retroactively restore preex-
isting terms and conditions of employment, including: weekly
contributions to the Central States Southeast and Southwest
Areas Pension Fund, weekly contributions to the Ohio Confer-
ence of Teamsters & Industry Health & Welfare Fund, wage
rates, shift differentials, overtime payments in excess of 8 hours
per day, vacation pay, work schedules, call outs or unscheduled
overtime outside of the regular or established shifts, seniority
provisions, safety equipment and protective clothing, and defi-
nition and assignment work, until Stein negotiates in good faith
with Teamsters Local 100 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 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 Jer-
sey, Inc., 363 NLRB No. 143 (2016), Stein shall, within 21
days of the date the amount of backpay is fixed either by
agreement or Board order, submit and file with the Regional
Director for Region 9 a report allocating the backpay award to
the appropriate calendar year. The Regional Director will then
assume responsibility for transmission of the report to the So-
cial Security Administration at the appropriate time and in the
appropriate manner.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The remedial order also includes paying any additional
amounts due to the above-referenced funds as a result of the
above violations, in accordance with Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979), and Smoke House
Restaurants, Inc., 365 NLRB No. 166 (2017).
Further, Stein and IUOE Local 18 shall be jointly and sever-
ally liable for reimbursing all claims by present and former
employees of the drivers 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 collec-
tive-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.
Stein and IUOE Local 18 shall post the Board's standard No-
tice to Employees and Notice to Employees and Members in
Appendix A and B, respectively. I decline the General Coun-
sel’s request in the amended consolidated complaint that, as
part of the remedial order, the Notices be read to employ-
ees/members. I note that the Board has held that in determining
whether additional remedies are necessary to fully dissipate the
coercive effect of unfair labor practices, it has broad discretion
to fashion a remedy to fit the circumstances of each case. Casi-
no 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 insuffi-
cient, such as when a respondent is a recidivist violator of the
Act, when unfair labor practices are multiple and pervasive, or
when circumstances exist that suggest employees will not un-
derstand or will not be appropriately informed by a notice post-
ing. The General Counsel does not address the basis for this
additional remedy in his posthearing brief. And while I find
that Stein and IUOE Local 18 committed serious violations, as
reflected in my forfeiture remedy, I find there is no evidence of
recidivism, pervasive violations, or that employees will not be
appropriately informed by a traditional notice posting.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended28
ORDER
A. Stein, and its officers, agents, successors, and assigns,
shall do the following
1. Cease and desist from
(a) Failing or refusing to recognize and bargain, on request,
with Teamsters Local 100 as the exclusive collective-
bargaining representative of the employees in the drivers unit
concerning wages, hours, and other terms and conditions of
employment.
(b) Granting assistance or support to IUOE Local 18, includ-
ing recognizing it as the exclusive collective-bargaining repre-
sentative of the employees in the drivers unit, at a time when

28 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
IUOE Local 18 does not represent an unassisted and uncoerced
majority of the employees in that unit, and Teamsters Local 100
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 with IUOE Local 18, including
its union-security and dues check-off provisions, to the em-
ployees in the driver unit, at a time when IUOE Local 18 did
not represent an unassisted and uncoerced majority of the em-
ployees in that unit.
(d) Failing to continue the terms and conditions of employ-
ment for the employees in the drivers unit in effect prior to
January 1, 2018, until Stein negotiates in good faith with Team-
sters Local 100 to an agreement or to impasse.
(e) Unilaterally changing wages, hours, or other terms and
conditions of employment applicable to employees in the driv-
ers unit, without providing Teamsters Local 100 with prior
notice and an opportunity to bargain over the changes.
(f) 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.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw recognition from IUOE Local 18 as the exclu-
sive collective-bargaining representative of the employees in
the drivers unit.
(b) Refrain from applying the terms and conditions of em-
ployment of the collective-bargaining agreement between Stein
and IUOE Local 18, including its union-security and dues-
checkoff provisions, to the employees in the drivers unit.
(c) Jointly and severally with IUOE Local 18, reimburse all
employees in the drivers unit for all initiation fees, dues, and
other moneys paid by them or withheld from their wages pur-
suant to the collective-bargaining agreement between Stein and
IUOE Local 18, with interest.
(d) Notify Teamsters Local 100, 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 drivers unit and,
upon request of Teamsters Local 100, rescind any or all unilat-
erally imposed changes and restore terms and conditions of
employment retroactively to January 1, 2018.
(e) Make employees in the drivers unit and the funds whole
for any losses sustained due to the unlawfully imposed changes
in their terms and conditions of employment in the manner set
forth above in the remedy section.
(f) Compensate the employees in the drivers unit for any ad-
verse 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 report allocating the
backpay award to the appropriate calendar year(s).
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
STEIN, INC. 27
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records 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.
(h) Within 14 days after service by the Region, post at the
AK Steel Middletown, Ohio location copies of the attached
notice marked “Appendix A.”29 Copies of the notice, on forms
provided by the Regional Director for Region 9 after being
signed by the Stein’s authorized representative, shall be posted
by Stein and maintained for 60 consecutive days in conspicuous
places throughout the AK Steel Middletown, Ohio location,
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if Stein customarily communicates 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 for-
mer employees employed by the Stein at the AK Steel Mid-
dletown, Ohio location, at any time since October 12, 2017.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Stein has taken to comply.
B. IUOE Local 18, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Accepting assistance or support from Stein, including
recognition as the exclusive collective-bargaining representa-
tive of the employees in the drivers unit at a time when IUOE
Local 18 does not represent an uncoerced or unassisted majori-
ty of the employees in that unit, and at a time when Teamsters
Local 100 was the exclusive collective-bargaining representa-
tive 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 drivers unit.
(c) Threatening employees in the drivers 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 em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

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 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.”
(a) Decline recognition as the exclusive collective-
bargaining representative of the employees in the drivers unit.
(b) Jointly and severally with Stein reimburse all present
and former employees from the driver unit for all initiation
fees, dues, and other moneys paid by them or withheld from
their wages pursuant to the collective-bargaining agreement
between Stein and Local 18, with interest.
(c) Preserve and, within 14 days of a request or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the
amount due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
headquarters and at its offices and meeting halls, copies of the
attached notice marked “Appendix B.” Copies of the notice, on
forms provided by the Regional Director for Region 9, after
being signed by IUOE Local 18’s authorized representative,
shall be posted by IUOE Local 18 and maintained for 60 con-
secutive days in conspicuous places, including all places where
notices to employees and members are customarily posted. In
addition to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intra-
net 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.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 9, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the IUOE Local 18 has taken to comply.
Dated, Washington, D.C., January 24, 2019.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union;
Choose a representative to bargain with us on your be-
half;
Act together with other employees for your benefit and
protection;
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT fail or refuse to recognize and bargain with
Truck Drivers, Chauffeurs and Helpers Local Union No. 100,
affiliated with the International Brotherhood of Teamsters
(“Teamsters Local 100”) as the Section 9(a) collective-
bargaining representative of the employees the following ap-
propriate unit:
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All truck drivers employed by [Stein] at its AK Steel, Mid-
dletown, Ohio facility, excluding all other production and
maintenance employees, office clerical employees, profes-
sional employees, guards and supervisors as defined by the
Act.
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 un-
coerced majority of the employees in that unit, and Teamsters
Local 100 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., includ-
ing its union-security and dues-checkoff provisions, to the em-
ployees in the above unit, at a time when IUOE Local 18 does
not represent an unassisted and uncoerced majority of the em-
ployees in that unit.
WE WILL NOT fail to continue the terms and conditions of
employment for the employees in the above unit in effect prior
to January 1, 2018, until we negotiate in good faith with Team-
sters Local 100 to an agreement or to impasse.
WE WILL NOT unilaterally change wages, hours, or other
terms and conditions of employment applicable to employees in
the above unit, without providing Teamsters Local 100 with
prior notice and an opportunity to bargain over the changes.
WE WILL NOT interfere with, restrain, or coerce employees in
the above unit regarding the exercise of their Section 7 rights,
including threatening or otherwise coercing them to join and
pay dues and fees to IUOE Local 18 or tell them that all jobs
will be under IUOE Local 18.
WE WILL NOT any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL withdraw recognition from IUOE Local 18 as the
bargaining representative of the employees in the above unit.
WE WILL refrain from applying the terms and conditions of
the collective-bargaining agreement between Stein and IUOE
Local 18, including the union-security and dues-checkoff pro-
visions, 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 Teamsters Local 100
is the exclusive collective-bargaining representative of the em-
ployees in that unit
WE WILL, jointly and severally with IUOE Local 18, reim-
burse all employees in the above unit for all initiation fees,
dues, and other moneys paid by them or withheld from their
wages pursuant to the agreement between Stein and IUOE Lo-
cal 18, with interest.
WE WILL notify Teamsters Local 100, 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 Teamsters Lo-
cal 100, rescind any or all unilaterally imposed changes to wag-
es, hours or other terms and conditions of employment, and
restore retroactively the terms and conditions that existed be-
fore January 1, 2018.
WE WILL make those employees in the above unit and 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.
WE WILL compensate the employees in the above unit for any
adverse income tax consequences of receiving their backpay in
one lump sum, and file with the Regional Director for Region 9
a report allocating the backpay award to the appropriate calen-
dar year(s).
STEIN, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-214633 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your be-
half;
Act together with other employees for your benefit and
protection;
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT accept recognition from Stein, Inc. as the ex-
clusive collective-bargaining representative of the employees in
the following unit, at a time when we do not represent an unco-
erced majority of the employees in the unit, and when Truck
Drivers, Chauffeurs and Helpers Local Union No. 100, affiliat-
ed with the International Brotherhood of Teamsters (Teamsters
Local 100) is the exclusive collective-bargaining representative
of those employees:
STEIN, INC. 29
All truck drivers employed by [Stein] at its AK Steel, Mid-
dletown, Ohio facility, excluding all other production and
maintenance employees, office clerical employees, profes-
sional employees, guards and supervisors as defined by the
Act.
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 em-
ployees 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 em-
ployees from the above unit with adverse consequences if they
refuse to join the International Union of Operating Engineers
(IUOE) Local 18 (Local 18).
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed by
Section 7 of the Act.
WE WILL decline recognition as the exclusive collective-
bargaining representative of Stein’s employees in the unit de-
scribed 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
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CB-214595 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.