New Process Steel, LP

National Labor Relations Board - Board Decisions

Sep 25, 2008

353 N.L.R.B. 111 (N.L.R.B. 2008)

NEW PROCESS STEL, LP
353 NLRB No. 13
111
New Process Steel, LP1 and District Lodge 34, Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO. Case 25–CA–30470
September 25, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On May 1, 2008, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply.
The National Labor Relations Board2 has considered
the decision3 and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,
findings,4 and conclusions and to adopt the recom-
mended Order.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, New Process Steel, LP, But-
ler, Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.

1 In several of the General Counsel’s submissions to the Board, the
Respondent is identified as New Process Steel of Indiana, Inc. We note
that the Respondent’s correct name, as reflected in the caption above, is
New Process Steel, LP.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 Although Chairman Schaumber agrees with the judge that the Re-
spondent unlawfully repudiated the contract, he does not rely on a
number of the judge’s statements. For example, the judge expressed
doubts and engaged in extensive discussion about whether the parties
agreed to contract ratification despite Union Negotiator Chaszar’s
specific testimony that he agreed to the Respondent’s requirement that
ratification was a condition precedent to the contract, and despite the
judge’s acknowledgement that he need not reach the issue. Further-
more, the judge questioned the Respondent’s professed concern for its
employees’ rights by speculating that its real motivation for refusing to
sign the contract was getting rid of the Union.
4 The Respondent has 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.
5 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
Fredric D. Roberson, Esq., for the General Counsel.
Joseph W. Ambash, Esq. (Greenberg Traurig, LLP.), of Boston,
Massachusetts, and Sheldon E. Richie, Esq. (New Process
Steel), of Austin, Texas, for the Respondent.
DECISION
STATEMENT OF CASE
DAVID I. GOLDMAN, Administrative Law Judge. This case
arises from an employer’s repudiation of an initial collective-
bargaining agreement reached with its employees union. At the
conclusion of 11 months of collective bargaining the Union
agreed to the employer’s contract proposal which contained
what the employer’s bargainer called “a lot of take-aways.”
When the Union accepted this offer, the employer, admittedly
motivated by the approaching expiration of the certification
year bar and “chatter” about a decertification petition, resisted
initialing the agreement, saying it would sign after ratification.
The union put the agreement to a vote of employees and, fol-
lowing its established procedures, when less than a majority
voted in favor of the contract, this triggered a strike vote requir-
ing supermajority approval, and failing to garner approval for
the strike, the contract was deemed accepted. The acceptance
was reported to the employer which executed and implemented
the agreement. However, a few weeks later, after investigating
the procedure followed by the Union for ratifying the contract,
the employer declared the contract ineffective.
The Government contends that the employer was required to
abide by the agreement reached with the Union and executed
after the Union advised the employer of the completion of its
contract ratification procedures. The employer contends that a
favorable vote on the agreement by employees was an agreed-
to condition precedent of the contract, and the union’s failure to
secure such a vote means that the contract never came into
effect. Alternatively, the employer contends that if a favorable
vote by the employees in favor of the agreement was not a con-
dition precedent of the agreement, then there was not a “meet-
ing of the minds” between the parties and no contract formed
on that basis.
FINDINGS OF FACT
Based on an unfair labor practice charge filed September 17,
2007, by District Lodge 34, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO (IAM or Union),
the General Counsel of the National Labor Relations Board
(Board) issued a complaint on December 28, 2007, alleging
violations of Section 8(a)(1) and (5) of the National Labor Re-
lations Act (Act) by New Process Steel, LP (NPS, Employer, or
Company). NPS filed a timely answer to the complaint deny-
ing all violations of the Act. This dispute was tried in Auburn,
Indiana, on March 11, 2008. Counsel for the General Counsel
and the Respondent filed briefs in support of their positions on
April 15, 2008. On the entire record, including my observation
of the demeanor of the witnesses and other indicia of credibil-
ity, I make the following findings of fact, conclusions of law,
and recommendations.1

1 Respondent filed a posthearing motion to correct the record. That
motion is granted. Accordingly, “no” is added as the last word to LL. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD112
The complaint alleges, Respondent admits, and I find that at
all material times NPS has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. The complaint alleges, the Respondent admits, and I find
that the Union at all material times has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
JURISDICTION
New Process Steel operates five steel processing facilities,
four in the United States, and one in Mexico. This case con-
cerns events at its Butler, Indiana facility.
The Union was certified as the exclusive bargaining repre-
sentative of a bargaining unit of NPS’s Butler, Indiana employ-
ees on August 25, 2006.2 Bargaining for a first contract began
on or about September 6, 2006. Attorney Mike Oesterle was
NPS’s lead negotiator and bargaining table spokesperson. But-
ler facility Plant Manager Steve Hartz was the other member of
the NPS bargaining team. Beginning in April 2007, the Un-
ion’s chief negotiator was Joseph Chaszar, a representative
from the Machinist Union. Throughout the negotiations the
parties “T/A’ed”—i.e., signed or initialed tentative agreement
to—discrete contract provisions as agreement was reached on
particular provisions.
The parties met approximately 25 times between September
2006 and August 2007, and by July 31, the Company had of-
fered at least 46 written counterproposals to the Union. At the
final bargaining session, Thursday, August 9, 2007,3 the parties
discussed whether to include a union security clause. NPS
stuck by its proposal—not to have union security—and ulti-
mately Chaszar told Oesterle, “Fine, I agree to it, to your pro-
posal.” Chaszar signed the provision. Chaszar then told the
NPS negotiators, “I will agree to your entire proposal” and
Chaszar signed the Employer’s outstanding proposal in its en-
tirety. Chaszar then slid the proposal over to Oesterle and
asked him to sign it. Oesterle refused to sign, and one of the
union negotiators, Mike Hall, angrily denounced Oesterle,
shouting, “[Y]ou fucking T/A’ed everything else. Why don’t
you sign off on this so we can get out of here.” Chaszar also
asked why, remarking to Oesterle that “up until this point, we
have agreed to sign off on all proposals that both parties agreed
to.” Oesterle replied that “once the agreement is ratified, we
will be glad to sign it.” Chaszar’s response was “we would like
to vote the contract today.” However, Oesterle told Chaszar
that “We have production scheduled. We can’t do it today.
You are going to have to do it on your time.” Chaszar asked if
work was scheduled for the coming weekend and Hartz told
him it was not. Chaszar said, “Fine, then we will schedule the
vote for this weekend.”

on p. 15; at LL. 19 of p. 15 “unratified” is inserted in place of “ungrati-
fied”; all references in the transcript to the name “Proche” are corrected
to read “Proch.”
2 The bargaining unit represented by the Union consisted of:
All full-time and part-time production and maintenance employees
employed by Respondent at its Butler, Indiana facility, but excluding
all office clerical employees, professional employees, sales representa-
tives, managerial employees, team leaders, guards, supervisors as de-
fined by the Act, and all other employees.
3 All subsequent dates refer to 2007, unless otherwise indicated.
This exchange during the final bargaining session was first
and only time in negotiations that the subject of the agree-
ment’s ratification was verbally mentioned between the parties.
At no time was there discussion of the ratification procedures
the Union would employ, or discussion of its standard proce-
dures used in contract ratification, or anything else, relating to
ratification.
While there had been no mention of ratification or ratifica-
tion procedures, three documents exchanged during negotia-
tions referenced ratification. One was in the final proposal
accepted by the Union. This was the “wages” provision of the
agreement, which included a reference to ratification, stating
“[b]eginning the effective date of this Agreement, or on the
date the total Agreement is properly ratified, signed and exe-
cuted, whichever is later [the Company agrees to pay specified
wages].”
A second ratification reference was contained in the Em-
ployer’s initial set of bargaining proposals, provided to the
Union in October 2006. This stated:
As proposals are considered by the parties, agreements on Ar-
ticles an[d]/or Sections of the proposed labor contract will
probably occur on a clause-by-clause basis. It is the Com-
pany’s position that these agreements will not become con-
tractually effective until the day and date that a total agree-
ment on all parts of the contract is reached, ratified, and
signed by all parties.
Finally, the Company referenced ratification in an 18-page
single-space letter written by NPS negotiator Oesterle on July
31, 2007, in which he indepthly summarized the status of nego-
tiations and the parties’ positions. That letter included a sum-
mary of the parties’ positions on the provision “parties and
terms of agreement” and included the statement that “[t]he
Company proposes a one-year deal, effective the date the con-
tract is signed, executed, and ratified, whichever is later.” This
provision, “parties and terms of agreement” was listed in the
Company’s letter as an “open” proposal, i.e., one on which no
agreement had been reached. There was no reference to ratifi-
cation contained in the final Company proposal on this provi-
sion accepted by the Union (R. Exh. 2 at numbered p. 1). None
of these three written references to ratification was discussed by
the parties.4

4 Hartz repeatedly testified, in blatantly self-serving testimony cued
by Respondent’s counsel, that his “understanding” of these written but
undiscussed references to “ratification” was “that there would be a
positive vote” by employees. (Tr. 45, 47, 49.) Similarly, Hartz testi-
fied that his understanding was that in order for the contract to be effec-
tive that there had to be “a favorable vote for the contract.” (Tr. 39.)
This “understanding” was not shared with the Union during bargaining,
or with anyone, as far as the record reveals. I do not credit this testi-
mony, based on the demeanor with which it was offered, how it was
elicited, and its overall lack of plausibility. Hartz maintained in his
testimony that requiring employees to vote on the contract was an im-
portant issue to NPS. As an experienced bargainer, Hartz would not
have left an important issue, and an understanding that the Respondent
claims to have relied upon, to the unexpressed understandings of one
side of the bargaining table. In any event, as discussed herein, Hartz’s
unexpressed understanding is of no relevance to the outcome of the
issues in this case.
NEW PROCESS STEEL, LP 113
At the trial, Plant Manager Hartz explained the Respondent’s
motive for wanting a vote of employees as a condition for the
contract’s effectiveness: “There was a lot of talk in the shop
about [ ] decertifying . . . and . . . this contract had a lot of
take-aways and . . . [we w]anted to make sure they had an op-
portunity to, you know, voice their opinion, and vote for the
contract and let their voice be heard.”
The Union scheduled a meeting and vote for Sunday, August
12, at a hotel in nearby Auburn, Indiana. Approximately 23
employees attended the meeting. At the meeting, the Union
followed its standard procedure in contract ratification situa-
tions. As Chaszar explained, “All of the contracts that we rat-
ify, we ratify in the same manner.” Pursuant to these proce-
dures, which are described in an IAM “circular,” an agreement
that is not accepted by a majority of those voting, triggers a
strike vote:
In the event that a strike vote fails to carry by the required
two-thirds (2/3) majority vote, the collective bargaining
agreement at issue will be accepted. This is because without
the necessary membership support for a strike, our negotiators
have no strength from which to insist on our bargaining de-
mands. . . . Again, lodges are reminded that if the strike vote
fails to carry, no strike sanction will be granted, and the con-
tract will be accepted.
[Emphasis added in original.]
At the meeting, Chaszar
explained what we were going to do, the agenda for the day,
which is we were going to go over the proposals, give every-
body an opportunity to ask questions, and go into a vote
which would be a secret ballot, and we also then explained
what would happen if that vote failed, that we would have a
second vote, which would be a vote to strike or not to strike.
It was explained at the meeting, at the beginning, and at the
end, that if the employees voted down the contract, but then did
not vote to strike by two-thirds majority, that the contract
would be accepted by the Union. This ratification process is
followed by IAM Locals around the country and, according to
Chaszar, used consistently at least as long as long as he has
been on staff.
After an explanation of the contract the Union conducted a
secret vote among those present. The employees rejected the
contract by one or two votes, meaning the votes in favor of the
contract were not 50 percent plus one. At that point the Union
explained, for the second time, that they were going to take a
second vote, a strike vote, and that a two-thirds vote to strike
was required for a strike to be initiated. That vote was then
conducted, again by secret ballot, and that vote did not receive
the number required to go on strike. At that point, the Union
told the employees that “the contract was enacted, because we
don’t have enough to go out on strike.”
Later that day, Chaszar called Oesterle and said that “we
have an agreement.” NPS executed the agreement.
During that week, Hartz called NPS’s CEO Bob Proch at
NPS’s corporate headquarters in Houston. Hartz told Proch
“some of the things that I had heard that had happened during
the ratification” and asked Proch “is there something you can
do to look into it and investigate.” Hartz told Proch in an e-
mail “the employees are asking for help. Is there something we
can do?” At that point, Hartz is “sure” counsel was involved
and he “assumes” an investigation was launched. By letter
dated September 11, NPS’s attorney, Joseph Ambash, wrote to
Chaszar announcing his assumption of the role of chief negotia-
tions representative for NPS and articulating the position on the
agreement that NPS maintains to this day:
As you know, the tentative agreement reached between
the parties on August 9, 2007[,] was expressly subject to
ratification by members of the bargaining unit. On August
12, 2007[,] you notified the company’s then-negotiator
that the parties had an agreement, whereupon Mr. Hartz
executed the purported contract on behalf of the company.
It has come to the company’s attention that, in fact,
members of the bargaining unit voted not to ratify the con-
tract. Apparently, you and other union representatives
then told employees they were required to take a strike
vote, and if the strike vote did not pass by a two-thirds ma-
jority, the tentative contract would then go into effect.
When the contract ratification vote and strike vote failed,
you nonetheless falsely told the company’s then-negotiator
that the parties had reached an agreement.
Since ratification was an express precondition to the
agreement, it is clear that there is not nor has there ever
been, a contract between the company and the union.
Should you wish to resume negotiations, please con-
tact me.
[Emphasis added in original.]
Discussion
The question in this case is whether the parties formed a
valid collective-bargaining agreement. If so, the Employer’s
admitted repudiation of the agreement violates Section 8(a)(5)
of the Act. See Valley Central Emergency Veterinary Hospital,
349 NLRB 1126 (2007).5
“‘Federal labor policy encourages the formation of collec-
tive-bargaining agreements,’ and ‘[i]t is the Board’s obligation
to “protect the process by which employers and unions may
reach agreements with respect to terms and conditions of em-
ployment.”’”6 In carrying out the obligation to encourage and
protect the process of forming collective-bargaining agree-
ments, the Board has always been clear that the Act imposes no
requirement of employee or union member ratification of col-
lective-bargaining agreements.7
The reason for this is that the “subject is unrelated to wages
and terms and conditions of employment.” C & W Lektra Bat

5 An employer that violates Sec. 8(a)(5) also derivatively violates
Sec. 8(a)(1). ABF Freight System, 325 NLRB 546 fn. 3 (1998).
6 Valley Central Emergency Veterinary Hospital, 349 NLRB at
1127, quoting, American Protective Services, 319 NLRB 902, 904
(1995) (fn. omitted).
7 North Country Motors Ltd., 146 NLRB 671, 674 (1964) (“The Act
imposes no obligation upon a bargaining agent to obtain employee
ratification of a contract it negotiates in their behalf”); Teamsters v.
NLRB, 587 F.2d 1176, 1182 (D.C. Cir. 1978) (“The Labor Act does not
require a union to accord its rank-and-file members the right to ratify a
collective-bargaining contract which it has negotiated”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD114
Co., 209 NLRB 1038, 1039 (1974), enfd. 513 F.2d 200 (6th
Cir. 1975); Houchens Market of Elizabethtown, Inc., 155
NLRB 729, 730 (1965), enfd. 375 F.3d 208 (6th Cir. 1967).
Unless the union and employer have agreed otherwise, “ratifi-
cation is an internal union matter which is not subject to ques-
tion by an employer.” Martin J. Barry Co., 241 NLRB 1011,
1013 (1979). As the Supreme Court has explained, in a discus-
sion of a contractual “ballot clause” similar to a ratification
provision, such a clause
deals only with relations between the employees and their un-
ions. It substantially modifies the collective-bargaining sys-
tem provided for in the statute by weakening the independ-
ence of the ‘representative’ chosen by the employees. It en-
ables the employer, in effect, to deal with its employees rather
than with their statutory representative.
NLRB v. Borg-Warner Corp., 356 U.S. 342, 350 (1958).
Notwithstanding these policy concerns, as with other
nonmandatory or permissive subjects of bargaining, the parties
are free to bargain about and reach agreements, regarding the
presumptively internal union issue of ratification.8
Accordingly, “[an] employer [does] not violate Sec. 8(a)(5) by
refusing to execute a bargaining contract which the parties had
agreed would be subject to ratification by unit employees” but
which the union subsequently refuses to ratify. Hertz Corp.,
304 NLRB 469 fn. 4 (1991); Santa Rosa Hospital, 272 NLRB
1004, 1006 (1984) (“the agreement reached on 9 March was
subject to the express condition of employee ratification; thus,
no ‘agreement’ sufficient to give rise to the Respondent’s legal
obligation to execute a written contract could exist prior to such
employee ratification”).
However, the policy concerns with maintaining a union’s
independence and status as the statutory representative have led
the Board to take care not to hobble a union’s ratification
prerogatives in the absence of a true agreement with an
employer regarding ratification. Precisely because “employee
ratification marginally diminishes the statutory rights that
Congress has bestowed on unions as exclusive bargaining
representatives both in the negotiation of labor contracts and in
the governance of its internal affairs . . . it is entirely fitting that
the Board insist on clear evidence that a union has agreed as a
contractual matter to surrender a degree of its prerogatives.”
Beatrice/Hunt-Wesson, Inc., 302 NLRB 224, 226 (1991)
(Chairman Stephens concurring). Thus, the Board distinguishes
between a union’s expressions of intent to seek employee
ratification, which the union can modify or ignore at will, and
an actual bilateral agreement with an employer to make
ratification a condition precedent to the formation of a binding
contract. Only in the latter instance does the employer have
cause to complain about a union’s decision, contrary to its
agreement, to eschew the ratification process. And a bilateral
agreement making ratification a condition precedent for
contract formation is not established casually or equivocally.

8 Of course, as with any nonmandatory subject of bargaining, a party
may not insist to impasse or condition negotiations or overall agree-
ment on the other party’s acceptance of a contractually enforceable
ratification provision. See Borg-Warner Corp., supra at 349.
For instance, a union’s repeated statements that it will take an
agreement to its membership for ratification does not establish
a bilateral enforceable agreement to do so, even if it creates an
understanding between the parties that the union intends to
undertake ratification of the agreement.9 In order for the Board
to find that ratification is a condition precedent to an
enforceable agreement, the agreement by the parties to do so
must be express.10 Absent an express agreement between the
parties to this effect, employee ratification is not a condition
precedent for the formation of a binding collective-bargaining

9 Personal Optics, 342 NLRB 958, 962 (2004) (“Even if the Union’s
prior statements arguably may have led the Respondent to believe that
the Union would conduct a vote of the bargaining unit, there was never
any such agreement between the parties. Accordingly, we agree with
the judge that the Union’s acceptance of the Respondent’s final offer
created a binding collective-bargaining agreement”), enfd. 165 Fed.
Appx. 1 (D.C. Cir. 2005); Consumat Systems, 273 NLRB 410, 413
(1984) (“Although the Union clearly stated that ratification by its mem-
bership was necessary for it to make a final and binding agreement, no
agreement was made by the parties that made ratification necessary and
no requirement that this occur was incorporated into the written con-
tract proposal prepared by Respondent”); Seneca Environmental Prod-
ucts, 243 NLRB 624, 628–629, 631 (1979) (management’s understand-
ing that contract would be submitted to ratification, based on union’s
instructions that it would seek approval of the employees of any provi-
sions negotiated, was not tantamount to an agreement that ratification
was necessary precondition to execution of contract otherwise agreed
upon), enfd. 646 F.2d 1170 (6th Cir. 1981); C & W Lektra Bat Co.,
supra (stated intention to take any contract reached to the membership
for approval does not constitute an agreement to make ratification a
condition precedent to a collective-bargaining agreement, and caution-
ing, “We are unwilling to distort words of intention into terms of
agreement, particularly where the subject is unrelated to wages and
terms and conditions of employment”); Houchens Market of Elizabeth-
town, 155 NLRB at 735.
10 Valley Central Emergency Veterinary Hospital, supra at 1126,
1132 (condition precedent of employee ratification must be express and
not created by union negotiator stating at first bargaining session that
“both sides would take any agreement back for ratification” and by
union telling mediator that union would recommend employee ratifica-
tion if employer agreed to union security clause (which it later did));
West Co., 333 NLRB 1314, 1320 (2001) (“there was no explicit agree-
ment regarding ratification and the situation is unlike Beatrice/Hunt-
Wesson, Hertz, and Santa Rosa”); Auciello Iron Works, Inc., 303
NLRB 562, 565 (1991) (“The Board has consistently held that where
there was no evidence of an explicit agreement between the negotiating
parties about union ratification, the formality of such a vote by the
union membership is not required as the foundation of a binding collec-
tive-bargaining agreement”), enfd. denied on other grounds 980 F.2d
804 (1st Cir. 1992); Hertz Corp., supra (finding “express oral bilateral
agreement to submit the parties’ negotiated contract to a ratification
vote”); Zayre Department Stores, 289 NLRB 1183 (1988) (no condition
precedent of employee ratification based on employer’s announcement
at final bargaining session that it is “prepared to sign the agreement
subject to acceptance or ratification by the employees” and at conclu-
sion of this session union “said the contract isn’t acceptable to us, but
we will take it to a vote”); Seneca Environmental Products, supra at
628–629, 631 (“ratification, to be a condition precedent to a collective-
bargaining agreement, must be agreed upon in express words and not
merely implied”); Martin J. Barry & Co., supra.; C & W Lektra Bat
Co., supra at 1039 (“There is no evidence that the parties agreed in
express words to such a condition [of contract ratification]”).
NEW PROCESS STEEL, LP 115
agreement, and the union retains sole discretion over whether to
ratify the contract or not.
In this case, the General Counsel takes the position that the
Union agreed to take the contract back for ratification, and did
so pursuant to its own interpretation and application of its pro-
cedures for handling the approval of contracts. In this case that
means that for members to reject a proposed contract, they had
not only to vote against the contract by a majority but had to
back up that vote with a supermajority vote in favor of a strike.
If they did not, the contract was accepted. That is the Union’s
established procedure for ratification and in the General Coun-
sel’s view, when the Union informed NPS at the outcome of its
ratification process that “we have an agreement,” NPS had an
obligation to execute and adhere to the agreement.
The Employer, on the other hand, takes the position that the
Union agreed to ratification and that meant that a majority of
employees must vote yes for the contract to be in effect. The
Union could not rely on its own ratification procedure to accept
the contract because that procedure did not result in a majority
of employees voting yes to accept the contract. The Union did
not obtain that, therefore, there was no legally binding accep-
tance of the contract, and no duty to adhere to or execute a
collective-bargaining agreement. Therefore, NPS’s (conceded)
repudiation of the agreement was lawful. Alternatively, if the
Union did not agree to ratification (as the Employer defines it),
then there was no meeting of the minds, and no contract, be-
cause that is what the Employer intended.
Both parties argue from the premise that some agreement on
ratification was bilaterally entered in to; they disagree on the
scope and implications of that agreement. Accordingly, I will
assume, without deciding, that this premise is correct. In truth,
I have some doubts on this score, but need not reach the issue.11

11 It is notable that not one word was uttered by either party to the
other regarding ratification during approximately 20–25 bargaining
sessions over the course of 11 months, until after the union accepted
(and signed off) on the Respondent’s complete proposal for a new
collective-bargaining agreement. The prior written references to ratifi-
cation were inadequate to create a binding agreement on ratification.
As to two of them—the one in the 18-page July 2007 letter summariz-
ing bargaining, and the one attached to NPS’s opening bargaining
proposals on October 2006—they were simply NPS proposals and there
is no evidence they were accepted. Neither is reflected in the final
proposal accepted by the Union. The third reference to ratification is
contained in the wage provision of the tentative contract but this refer-
ence, by its terms, does not establish ratification as a condition prece-
dent for enactment of the overall agreement, as it applies only to wages,
and even as to that, it is ambiguous as to whether ratification is re-
quired.
If agreement on ratification is to be found the focus must be on the
verbal exchange between negotiators after the Union accepted the
contract proposal, when NPS negotiator Oesterle declared that he
would sign the contract after ratification. Even indulging the inference
that this meant, and was understood as meaning, he would sign the
agreement “only after ratification,” the Union’s response strikes me as
less than adequate to constitute an acceptance that, by purporting to
render ratification a condition precedent to the formation of an agree-
ment, necessarily annulled the binding agreement reached just seconds
before by the parties. Clearly, had the Union objected to NPS’s insis-
tence on delaying signing until after ratification, and demanded that the
employer sign the agreement immediately, it would have been an unfair
Even assuming that the parties entered into a bilateral
agreement at the conclusion of the last bargaining session to
make “ratification” a condition precedent to the Union’s
acceptance of the contract, the outcome in this case is clear.
The Employer does not have standing to challenge the
method or mechanics of the Union’s ratification process
because it did not bargain for an agreement on the methods or
mechanics of the ratification process. As the Board recently
explained with regard to employee ratification, “even if such
ratification were a condition precedent, Board law is clear that
the Respondent does not have standing to challenge the Union’s
ratification process.” Valley Central Emergency Veterinary
Hospital, supra at 1127. Precisely because the “method of
contract ratification was within the Union’s exclusive domain
and control” an employer’s refusal to honor a contract based on
objections to the ratification process is unlawful.12

labor practice for NPS to refuse. But while the Union’s failure to ex-
pressly refuse may alleviate any contention that the Respondent unlaw-
fully conditioned execution of an agreement already accepted on the
Union’s acceptance of a nonmandatory condition, the failure to ex-
pressly object does not convert the Union’s preexisting intention to
seek ratification of the contract—pursuant to its procedures—into an
express agreement that ratification was now a condition precedent for
the reaching of a binding agreement. A “meeting of the minds” is
determined “not by the parties’ subjective inclinations, but by their
intent as objectively manifested in what they said to each other.” MK-
Ferguson Co., 296 NLRB 776 fn. 2 (1989). In this case, what the par-
ties said to each other seems inadequate to constitute an express bilat-
eral agreement to ratify. See C & W Lektra Bat Co., supra (cautioning
with respect to claims of a ratification agreement: “We are unwilling to
distort words of intention into terms of agreement, particularly where
the subject is unrelated to wages and terms and conditions of employ-
ment”). The Union was already intending to commit the matter to its
internal processes regardless of whether or not the employer mentioned
ratification. For that reason alone there was no reason for it to object to
NPS’s untimely demand for ratification. Given that, it is hard to see
that the Union’s response to the Respondent’s sudden demand—“we
would like to vote the contract today”—indicates an agreement to add a
condition precedent of ratification, in a very real sense undoing the
binding agreement already reached between the parties. Under the
circumstances, the Union’s response to the employer’s refusal to sign
the agreement can most reasonably be understood as simply a determi-
nation to continue on the ratification path it was planning to pursue
anyway: unilaterally seeking ratification as a prelude to requiring Em-
ployer performance under the agreement. The union “agreed” only in
that sense. Notably, the Board has refused to find ratification a condi-
tion precedent for contract formation in strikingly similar circum-
stances. See Zayre Department Stores, 289 NLRB 1183 (1988).
Perhaps the strongest point for Respondent is that union negotiator
Chaszar agreed on cross-examination that when the Union accepted
NPS’s proposal he was “accepting the Company’s notion that it would
have to be ratified.” Chaszar also answered “yes” when asked if there
was any language in the contract that required it to be ratified. And he
also was willing to agree on cross-examination that he agreed to have
the contract ratified. I note only that in the context of the entire record,
and in particular in context of what the record demonstrates objectively
transpired at the bargaining table and what is objectively contained in
the written proposals and documents, Chaszar’s testimony finds little to
no objective support.
12 Id. (summarizing and quoting from Childers Products Co., 276
NLRB 709, 711 (1985), review denied mem. 791 F.2d 915 (3d Cir.
1986)); Newtown Corp., 280 NLRB 350, 351 (1986) (“even if ratifica-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD116
This is not to say that an employer, such as NPS, which has
entered into an agreement making ratification a precondition to
contract formation, is without standing to object (and refuse to
sign the contract) if the union fails to undertake any ratification
process. See, e.g., Hertz Corp., 304 NLRB 469 (1991) (union
repudiated ratification agreement with employer and engaged in
no ratification process, and therefore employer’s refusal to
execute agreement was not a violation of the Act). But an em-
ployer’s right to take issue with a union’s compliance with a
bilateral agreement to ratify is limited to those instances where
a union has reneged and not undergone a ratification procedure.
The employer does not have standing to object to the ratifica-
tion procedures chosen by the union where the employer has
not bargained for an agreement regarding the procedures to be
utilized.
In this case, assuming an agreement between the parties to
ratify, there was no agreement, or even discussion, on the vot-
ing methods or process which the Union was required to under-
take. The Employer could have tried to bargain for any or all
manner of ratification requirements and procedures. It did not.
In the absence of any negotiated agreement on how the Union
would ratify the agreement, the Union was left with the discre-
tion to carry out the ratification as it saw fit. That is, in effect,
the default position for Federal labor policy, and it is altered
only to the extent the Union has expressly bargained away its
right to structure its internal relationship with employees and
the right to conduct ratification in accord with its discretion as
the employees’ representative. Unions choose to approve and
sanction contracts in a myriad of ways unobjectionable to Fed-
eral law and policy. The IAM’s process, whatever the argu-
ments in its favor or against it, is not a unique, dubious, or le-
gally controversial process.13 The IAM’s process is obviously

tion were a precondition, we find that Respondent has no standing to
question the validity of the procedures used by the Union in ratifying
the agreement. It is well settled that ratification is an internal union
matter which is not subject to question by an employer. Here, there
was a meeting at which a vote was taken, and the Union concluded that
the meeting and vote met its standards for a valid ratification vote. . . .
Respondent may not raise questions concerning the Union’s internal
procedures in order to avoid its obligation to sign the agreed-upon
contract”) (quoting Martin J. Barry Co., 241 NLRB 1011, 1013 (1979),
enfd. 819 F.2d 677 (6th Cir. 1987)). “Whether the ratification process
is fair and proper, is not relevant to the question of the existence of an
agreement. What is relevant is what the union tells the employer about
ratification. . . . ‘[W]henever a labor organization gives notice to an
employer that their agreement has been ratified by the employees, that
notice signifies acceptance of the rights and duties arising under that
agreement and, in turn, the statutory obligation arises to execute a writ-
ten contract embodying that agreement.’” Teamsters Local 589
(Jennings Distribution Inc.), 349 NLRB 124, 129 (2007) (fn. omitted)
(quoting Teamsters Local 662 (W. S. Darley & Co.), 339 NLRB 893,
899 (2003), enfd. 368 F.3d 741 (7th Cir. 2004)).
13 Union practices run the gamut, but procedures substantially simi-
lar to those utilized by the Union in this case can be found at other
unions and other IAM lodges. See, e.g., Paperworkers (International
Paper), 295 NLRB 995, 1001–1002 (1989) (“A collective bargaining
agreement must be ratified and approved by a majority of the members
covered by said agreement present and voting on the question by secret
ballot before the same shall be executed on behalf of the union . . .
should a vote for ratification of a contract fail to yield a majority vote
designed to avoid rejection of tentative agreements where the
membership is unwilling to support a strike in numbers strong
enough to give the Union the bargaining power the Union be-
lieves it needs to change the employer’s position. It is an em-
ployee ratification process, involves employees voting twice,
and it does give employees as a group the opportunity to decide
whether to accept the contract. But it is a process designed by
the Union to meet the tactical and strategic concerns of the
union. There is no evidence that the Union utilized a ratifica-
tion process designed to thwart, escape from, or defeat the
agreement reached with the Employer. Rather, it utilized its
longstanding ratification process, which did not violate any
aspect of its ratification agreement with NPS. There was no
discussion between the parties, much less agreement, on
whether the ratification would consist of a vote of all employ-
ees, or just union members; whether tabulation would be based
on those voting, or on the bargaining unit as a whole, or union
members. There was no discussion, much less agreement, on
whether “ratification” would involve one straight up or down
vote by those at the meeting or whether the contract would be
accepted or rejected based just on that vote. The fact is there is
no evidence that the Union and Employer discussed or agreed
on any particular form of ratification, “let alone by a majority
or even a representative employee group. . . . Thus, if there

as required for acceptance by this Constitution and then fail to yield the
two-thirds (2/3) majority vote necessary for strike sanction, the local or
multiple so affected shall be considered to have accepted the labor
agreement”); Zayre Department Stores, 289 NLRB 1183, 1185 (1988)
(“In the event of rejection of the employer’s proposal judged by the
Local Union President or negotiating committee to be the employer’s
final proposal for a collective bargaining contract or renewal of an
existing contract and the failure of the affected membership of the
Local Union to approve a strike or other economic action by a two-
thirds vote, the Local Union Executive Board shall, after notifying the
International President and receiving acknowledgment of such notice,
have authority to accept or reject such offer”); Childers Products Co.,
276 NLRB 709, 710 (1985) (“A bargaining committee made up of
bargaining unit employees and union representatives negotiate with the
employer for an agreement. When, in the committee’s estimation, the
best agreement has been reached, the bargaining unit members of the
committee are instructed to go back to the other employees, inform
them that an agreement has been reached and that a meeting will take
place at a certain place and time and when the contract will be pre-
sented to them. A meeting is held, the Union reads the contract to the
bargaining unit employees and they vote on it. If a majority of the
employees vote to ratify the contract it is approved and the employer is
instructed to put the agreement into effect. To authorize a strike, the
employees must vote the contract down by two-thirds of those present
and voting. If two thirds of the employees do not vote to strike, and a
majority of the employees do not vote to accept the contract, the con-
tract is presented to the executive board, which then votes on whether
or not to accept or reject it. If, in the executive board’s opinion, the
contract is the employer’s final offer, the executive board is obligated
to accept the offer. A strike vote may be taken separately or may be
accomplished in the vote on whether or not to accept the contract”);
United Technologies Corp., 274 NLRB 609, 610 (1985) (other IAM
lodge: “At that meeting the Union presented only the 2-year option to
the membership. The employees voted against accepting the 2-year
option. However, as provided by the Union’s bylaws, since a two-
thirds majority did not authorize a strike, the Respondent’s 2-year offer
was automatically accepted”).
NEW PROCESS STEEL, LP 117
were any agreement on the part of the Union with respect to
employee ratification, it could have extended no further than an
undertaking on its part to comply with its internal union proce-
dures and requirements relating to ratification.” North Country
Motors Ltd., 146 NLRB 671, 673 (1964); Beatrice/Hunt-
Wesson, supra at 224 fn.1 (distinguishing Childers, supra,
where “unlike here [in Beatrice/Hunt-Wesson] the parties
“never established during negotiations what the union meant by
‘ratification’ . . . [t]herefore, the method of ratification was left
for the union to determine”).
As explained by Judge Nations in Childers, supra at 711, in
reasoning adopted by the Board and controlling here:
In this proceeding, though the contract stated that it
was “Subject to ratification,” there was no requirement
that employees of the Employer ratify the contract. The
condition precedent of “ratification” means as defined by
the Union in its internal procedures. There was no under-
standing established by the parties during negotiations
concerning what the Union meant by ratification. I find,
therefore, that the method of ratification was within the
Union’s exclusive control and domain and that the Union
reasonably interpreted its constitution and bylaws concern-
ing ratification and acted in accordance with them. . . .
A union does not automatically assume the obligation
of obtaining ratification of a contract negotiated on behalf
of employees. If it does, however, ‘it is for the Union, not
the employer to construe and apply its internal regulations
relating to what would be sufficient to amount to ratifica-
tion. Although I found in the preceding section of this de-
cision that the Union has properly interpreted and fol-
lowed its internal procedures, and has thus ratified the
contract in question, I further find that Respondent has no
standing to question the procedure and that the method of
contract ratification was within the Union’s exclusive do-
main and control. Thus, by ignoring the Union’s [ ] in-
struction to put the contract into effect and conditioning
acceptance the contract on employee ratification, Respon-
dent has violated Sections 8(a)(1) and (5) and (d) of the
Act.
See also West Co., 333 NLRB 1314, 1315 fn. 6, and 1320
(2001) (“we agree with the judge, for the reasons set forth by
him, that it is for the Union to construe and apply its internal
regulations relating to what would be sufficient to amount to
ratification”; ALJ ruling: “even if the offer had been precondi-
tioned upon ratification, it would be inappropriate to permit
litigation of the Union’s adherence to its internal procedures in
conducting the vote. The Respondent has no standing to ques-
tion the validity of the procedures used by the union in ratifying
the agreement”).
NPS’s position is that once it is conceded that the parties
agreed to “ratification,” the employer is graced with standing to
argue whether that ratification meets standards the employer
finds reasonable, desirable, or advantageous, but for which the
employer failed to expressly bargain. I think this is a key error.
The Federal labor policy disfavoring employer interference in
the relationship between employees and their collective-
bargaining representatives does not evaporate by virtue of an
agreement between the employer and union that there will be
“ratification” of a contract. A union entering into such an
agreement is bound to engage in a ratification process to render
the contract effective—it cannot eschew ratification entirely, as
the union did in Hertz Corp., supra—but the union still main-
tains control over that process unless the process it utilizes runs
afoul of an express agreement between the employer and union.
A contrary holding would eviscerate Federal labor policy’s
concern with union independence and lead, as it does in this
case, to the spectacle of an employer that bargained for “ratifi-
cation” scouring union documents and literature (R. Br. at 10–
12, 25–26) for statements that support its claim that the union
did not comply with its own procedures or carried out ratifica-
tion in a manner that does not meet standards the employer
would impose. Such contentions, and indeed, the Employer’s
entire argument, reveal the thorough interference with internal
union matters to which the NPS position inexorably leads.
Federal labor policy foresees the problem and Board precedent
has dealt with it. Whether cast as an issue “involving the vol-
untary waiver of a union’s statutory rights—the evidence of
which [must] be clear and unmistakable,”14 or simply as a way
of preserving union autonomy in internal affairs and discourag-
ing employer interference in the union-employee relationship,15
the right of the employer to challenge and dictate ratification
procedure is strictly confined to the procedures conceded by the
union to the employer through agreement.
This point may be seen in operation in the Board cases on
which NPS relies the most. Thus, in Hertz Corp., the union,
after agreeing to ratification held none—no vote or process at
all. Similarly, in Beatrice/Hunt-Wesson, Inc., 302 NLRB 224
(1991), allegations similar to those at issue here were dismissed
against an employer. In that case, the Board relied upon a
memorandum of agreement executed by the parties to find that
the employer and union explicitly agreed as a condition prece-
dent that the tentative contract would be recommended to “the
members of the bargaining unit for ratification as soon as pos-
sible.” 302 NLRB 224 fn. 1, and 228 fn. 3. After the bargain-
ing unit employees repeatedly rejected the proposed contract,
“the Union obtained what it considered to be adequate ratifica-
tion from a vote of the union members, which actually con-
sisted of just one individual.” 302 NLRB at 224. (Chairman
Stephens concurring). The point of Beatrice/Hunt Wesson—
both the majority and concurrence—was that the union and
employer negotiated for a specific set of employees—the mem-
bers of the bargaining unit and not just union members—to
ratify, and the union abandoned that negotiated requirement.
The Board in Beatrice/Hunt-Wesson, distinguished Childers,
supra, where, although the agreement stated “THIS
AGREEMENT SUBJECT TO RATIFICATION,” the parties
did not discuss the meaning of the ratification language:
“[T]he employer and union in Childers never established dur-
ing negotiations what the union meant by ‘ratification,’ nor
did they even discuss ratification during their negotiations.

14 Beatrice/Hunt-Wesson, Inc., 302 NLRB at 226 (Chairman
Stephens concurring) (citing Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983)).
15 Borg-Warner Corp., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD118
Therefore, the method of ratification was left for the union to
determine. In contrast, the Respondent and Union here
agreed that ratification by bargaining unit members was a
precondition to the contract and discussed the ratification
process. Thus, ratification was clearly defined and not left to
the Union’s internal procedures.
In his concurrence in Beatrice/Hunt-Wesson, Chairman
Stephens made this point separately, approvingly citing a Gen-
eral Counsel Advice memorandum, Nichols Homeshield, Case
18–CA–8439 (1983) (available on Lexis at 1983 NLRB GCM
Lexis 78), where
The employer and the union had initially reached agreement
on all terms and conditions of employment, subject to ratifica-
tion. However, the employer then proposed, and the union
acquiesced in, a revision that called for participation by both
union members and nonmembers in the ratification vote. The
General Counsel noted that because nothing at first was said
as to who would participate in the vote, the issue normally
would be an internal matter that the union could resolve uni-
laterally. But the General Counsel then concluded that the
evidence of a subsequent agreement on full employee partici-
pation was clear enough, and the employer could refuse to
execute as long as ratification was not conducted in accor-
dance with the parties’ agreement.
Beatrice/Hunt-Wesson, supra at 226 fn. 14 (emphasis added).
Thus, Chairman Stephens endorsed the view that an undefined
agreement to ratify leaves to the union the unilateral discretion
on the methods and procedures of that ratification. That discre-
tion is narrowed only and to the extent that the parties agree to
specific rules or procedures for that ratification. In this case,
the parties’ agreement did not prescribe the ratification proce-
dures, and NPS has no standing to challenge the methods util-
ized by the Union.16

16 NPS also argues vigorously that a General Counsel internal Ad-
vice memorandum, Machinists Lodge 1746 (United Technologies
Corp.), Case 39–CB–761 (December 20, 1985) (available on Lexis at
1985 NLRB GCM LEXIS 90), supports its position. It does not, and
not just because Advice memoranda do not constitute Board precedent.
Kysor Industrial Corp., 307 NLRB 598, 602 fn. 4 (1992), enfd. w/o op.
9 F.3d 108 (6th Cir. 1993). In Machinists Lodge 1746, the General
Counsel’s Division of Advice counseled against prosecuting an IAM
local, which utilized the same ratification process at issue here, but then
refused to sign the agreement after the employees did not vote to accept
the contract and did not vote to strike. This, the employer contended,
was at odds with the union’s longtime practice and, the employer ar-
gued, the IAM should be required to execute the contract in accordance
with its longstanding ratification process. The General Counsel’s Divi-
sion of Advice recommended dismissal, precisely because “it does not
appear that the parties ever expressly agreed that a vote by members to
reject an offer but not to strike automatically created a contract.” In
truth, the case is more inapposite than contradictory of Respondent’s
position, since in Machinists Lodge 1746, there was no condition
precedent which the union was bound to undertake before accepting the
contract. But more generally, the case affirms the extent of union dis-
cretion in carrying out and implementing ratification procedures in the
absence of an express agreement between the parties as to the precise
methods and procedures required.
The Employer offers two further closely related arguments.
NPS contends that the agreement to “ratify” is an agreement to
use the ratification procedure preferred by Respondent: namely
an up or down vote by the bargaining unit employees on
whether a majority (presumably a majority of those voting, and
not a majority of those in the unit, although this is not clear)
support or reject the contract. NPS contends that “‘[r]atify,’
when used in the field of labor relations has a generally prevail-
ing meaning of a vote in favor by a majority of bargaining unit
members” and that “the Union had every reason to know that
this was the meaning the Employer attached to it” (R. Br. at
23). Under this view, NPS has standing to challenge the Union,
for it is only enforcing the agreement it reached with the Union
on ratification.
However, there is no basis for Respondent’s view that an
agreement to ratify must mean, or must be interpreted to mean,
ratification as envisioned by the Respondent. It is not that
NPS’s preferred ratification process is unreasonable. It is just
not self-evident, and, indeed, it is contrary to the way the IAM
and other unions proceed. The word “ratification” itself means
to “approve and sanction” (Webster’s Third New International
Dictionary (1986)) and, as noted, supra, unions choose to ap-
prove and sanction contracts in a myriad of ways. As dis-
cussed, the IAM’s procedure is a ratification procedure, involv-
ing multiple votes by employees, weighted toward acceptance
of the contract unless a supermajority is willing to strike in
support of a better proposal. NPS cannot impose its model of
ratification on the Union by claims that the Union should have
known what it meant.
Finally, as a corollary of its argument, NPS contends that
since it claims it intended ratification to mean an up or down
vote by employees, if the Union did not, there was no “meeting
of the minds” and, therefore, no contract. This is entirely un-
persuasive. First, for the reasons discussed, supra, I do not
credit the claims of Hartz, for which no objective support ex-
ists, that throughout negotiations, his unexpressed understand-
ing of the Employer’s intent was that it was proposing the par-
ticular form of ratification it now seeks to impose as a condition
precedent to contract formation. However, even if that were his
(and Oesterle’s) unexpressed view, as referenced above, a
“meeting of the minds” is determined “not by the parties’ sub-
jective inclinations, but by their intent as objectively manifested
in what they said to each other.” MK-Ferguson Co., 296
NLRB 776 fn. 2 (1989). Or, as the Board has recently ex-
plained, “[t]he expression ‘meeting of the minds’ is based on
the objective terms of the contract, not on the parties’ subjec-
tive understanding of those terms.” Winward Teachers Assn.,
346 NLRB 1148, 1150 (2006). The expression is a misnomer
to the extent it is used to suggest that for there to be a contract
that “both parties have an identical understanding of the agreed-
upon terms.” Id. “Where the parties have agreed on the con-
tract’s actual terms, disagreements over the interpretation of
those terms do not provide a defense to a refusal to sign the
contract.” Id. As the Board has repeatedly explained, the “sub-
jective understandings or misunderstandings as to the meaning
of terms which have been agreed to are irrelevant, provided that
the terms themselves are unambiguous judged by a reasonable
NEW PROCESS STEEL, LP 119
standard.” Diplomat Envelope Corp., 263 NLRB 525, 536
(1982), enfd. 760 F.2d 253 (2d Cir. 1985).
The Board’s recent decision in Winward Teachers Assn., su-
pra, is instructive. In that case, the parties negotiated language
stating that “[t]he School has the right to pay bonuses without
Union approval.” Subsequently, the union refused to execute
the contract, contending that this language did not adequately
describe its understanding, which included the additional re-
quirement that the bonuses the school had a right to pay be
disbursed in a manner that was “fair and equitable and across
the board.” The Board rejected the union’s contentions, hold-
ing that “[w]here the parties have agreed on the contract’s ac-
tual terms, disagreements over the interpretation of those terms
do not provide a defense to a refusal to sign the contract.” 346
NLRB at 1150.
Similarly, in the instant case, assuming an agreement to “rat-
ify” or for “ratification” of the contract involving voting, noth-
ing more than that was stated or written, much less agreed.
That the Union and NPS have different ways of carrying out a
ratification is without consequence for the issue of whether an
agreement was reached. Assuming there was an agreement to
make “ratification” a condition precedent, it is binding, and the
Employer may not rely on varying subjective understandings of
what “ratification” should entail to void the agreement.17
The Respondent and the General Counsel contend that NPS
and the Union bargained for “ratification.” They got it. That it
does not match what the Employer wishes it had bargained, or
hoped it would get, is of no consequence to its obligation to
execute and adhere to the collective-bargaining agreement
reached with the employees’ designated representative.18

17 The instant case offers an instructive contrast with the ALJ’s deci-
sion in Teamsters Local 926 (Penske Truck), Case 6–CB–11383 (Sep-
tember 4, 2007) (available on the NLRB website), cited by NPS.
There, the General Counsel failed to show a meeting of the minds be-
tween the parties on a key issue in negotiations—the staffing of a newly
created position—which had been discussed, but as to which there had
been neither oral agreement nor any language in the written agreement
pertaining to the issue. It was not that the parties held subjectively
different views on the meaning of an oral or written agreement on the
issue, rather, there was nothing agreed to on the key issue. That is
decisively different than the NPS’s claim here, where it insists that the
parties agreed to ratification, but then claims no meeting of the minds
because the parties had different subjective views on the best way to
conduct a ratification.
18 Throughout its brief and at trial, NPS suggested that its stance on
ratification was a product of its concern with employee rights, and an
awareness of the potential for decertification of the union as the em-
ployees’ representative. As the United States Supreme Court has
warned, in the context of an employer seeking to withdraw recognition
from a union based on its perception of the employees’ lack of support
for the union: “[t]he Board is accordingly entitled to suspicion when
faced with an employer’s benevolence as its workers’ champion against
their certified union.” Auciello Iron Works, Inc. v. NLRB, 517 U.S.
781, 790 (1996). In this case, as in C & W Lektra Bat Co., supra, the
employer’s motive for its commitment to a version of ratification that
the union cannot meet is obvious, if not directly relevant to the 8(a)(5)
issue at stake. As the Board recognized in C & W Lektra Bat Co.:
“The facts Respondent knew of the Union’s membership problems;
had received a petition by the employees to oust the Union; had heard
‘rumbles’ about employee dissatisfaction . . . and knew the Union’s
CONCLUSIONS OF LAW
1. Respondent New Process Steel, LP is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Charging Party District Lodge 34, International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO (Union)
is a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times since August 25, 2006, the Union has been
the certified exclusive collective-bargaining representative of a
bargaining unit of Respondent’s employees composed of
All full-time and part-time production and maintenance em-
ployees employed by Respondent at its Butler, Indiana facil-
ity, but excluding all office clerical employees, professional
employees, sales representatives, managerial employees, team
leaders, guards, supervisors as defined by the Act, and all
other employees.
4. Respondent and the Union entered into a collective-
bargaining agreement effective by its terms August 12, 2007.
5. Respondent violated Section 8(a)(1) and (5) of the Act by
refusing to adhere to and repudiating its collective-bargaining
agreement with the Union.
6. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent must, upon re-
quest of the Union, adhere to the collective-bargaining agree-
ment reached with the Union, restoring and giving effect to its
terms retroactive to August 12, 2007, and continuing those
terms and conditions in effect unless and until changed through
collective bargaining with the Union. If no such request is
made by the Union, Respondent must bargain upon request
with the Union as the exclusive collective-bargaining represen-
tative of employees in the appropriate bargaining unit and em-
body any understanding reached in a signed agreement.
Respondent shall make whole its employees for losses in
earnings and other benefits which they may have suffered as a
result of Respondent’s repudiation of and refusal to adhere to
the collective-bargaining agreement, to be calculated in the
manner set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971). Interest on all sums
shall be computed as prescribed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).19

certification year expired [soon], all tend to suggest that Respondent
was more interested in getting rid of the Union than in obtaining any
legitimate benefit for itself in having the contract ratified and, indeed
that insistence on ratification . . . was intended toward this end.” 209
NLRB at 1039.
Here, as in C & W Lektra Bat Co., the employer’s interest in remov-
ing the union is not directly at issue, but serves as a rejoinder to the
concern for employee rights with which it vests its position.
19 The remedy and recommended Order shall not include direction to
Respondent to reimburse the Union for dues lost on account of Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD120
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in the Respondent’s facility or wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. When the notice is is-
sued to the Respondent, it shall sign it or otherwise notify Re-
gion 25 for the Board what action it will take with respect to
this decision. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since September 11, 2007.
Respondent shall, 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 payroll records, social security payment re-
cords, 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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, New Process Steel, LP, Butler, Indiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating and refusing to adhere to the collective-
bargaining agreement reached with the Union and effective by
its terms August 12, 2007.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act.
(a) Upon request of the Union, adhere to the collective-
bargaining agreement reached with the Union, restoring and
giving effect to its terms retroactive to August 12, 2007, and
continuing those terms and conditions in effect unless and until
changed through collective bargaining with the Union. If no
such request is made by the Union, bargain upon request with
the Union as the exclusive collective-bargaining representative
of employees in the appropriate bargaining unit and embody
any understanding reached in a signed agreement.
(b) Make all affected employees whole, with interest, in the
manner set forth in the remedy section of this Decision and
Order, for any loss of earnings and other benefits suffered as a
result of Respondent’s repudiation of and refusal to adhere to

spondent’s failure and refusal to honor the collective-bargaining
agreement, as the agreement contains neither a dues-checkoff provision
nor any requirements related to union membership.
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
the collective-bargaining agreement reached with the Union
and effective by its terms August 12, 2007.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, make available at a reasonable place designated by the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records, including an elec-
tronic copy of the records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its fa-
cility in Butler, Indiana, copies of the attached notice marked
“Appendix.”21 Copies of the notice, on forms provided by the
Regional Director for Region 25, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at that facility
at any time since September 11, 2007.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 25 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply with the
provisions of this Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your 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 repudiate or refuse to adhere to the collective-
bargaining agreement reached with the Union and effective
August 12, 2007.

21 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.”
NEW PROCESS STEEL, LP 121
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Federal law.
WE WILL, upon request by the Union, adhere to the collec-
tive-bargaining agreement reached with the Union and effective
August 12, 2007, giving effect to its terms retroactive to August
12, 2007, and continuing those terms and conditions in effect
unless and until changed through collective bargaining with the
Union. If no such request is made by the Union, we will, upon
request, bargain with the Union and embody any understanding
reached in a signed agreement.
WE WILL make all affected employees whole, with interest,
for any loss of earnings and other benefits suffered as a result
of our repudiation of and refusal to adhere to the collective-
bargaining agreement reached with the Union and effective
August 12, 2007.
NEW PROCESS STEEL, LP