Shane Steel Processing

National Labor Relations Board - Board Decisions

Feb 29, 2008

352 N.L.R.B. 28 (N.L.R.B. 2008)

352 NLRB No. 28
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.
Shane Steel Processing, Inc. and J&J Land LLC, A
Single Employer1 and Local 771, International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America
(UAW), AFL–CIO. Case 7–CA–50288
February 29, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that Respondent Shane Steel Process-
ing, Inc. (Respondent Shane) has withdrawn its answer
and amended answer to the complaint and compliance
specification. On May 31, 2006, the Board issued a De-
cision and Order in Cases 7–CA–47710 and 7–CA–
48016,2 that, among other things, ordered Respondent
Shane to make the unit employees whole for any loss of
earnings and other benefits resulting from Respondent
Shane’s unlawful conduct in violation of Section 8(a)(5)
and (1) of the Act. On November 21, 2006, the United
States Court of Appeals for the Sixth Circuit entered its
judgment enforcing the Board’s Order.3
A controversy having arisen over the amount of back-
pay due the discriminatees under the Board’s Order, on
July 31, 2007, the Regional Director issued a complaint,
compliance specification, and order consolidating com-
plaint and compliance specification. On August 20 and
October 16, 2007, respectively, Respondent Shane filed
an answer and an amended answer to the consolidated
complaint and compliance specification. On December
20, 2007, Respondent Shane, by counsel, withdrew its
answer and amended answer to the complaint and com-
pliance specification.4

1 In light of the settlement agreement between J&J Land LLC and
the Union (discussed below), we make no finding as to whether the
Respondents are a single employer, as alleged in the consolidated com-
plaint and compliance specification. See fn. 5 below.
2 347 NLRB No. 18 (2006).
3 Case No. 06-2111.
4 Specifically, the withdrawal letter states:
My client has authorized me to inform you that Respondent with-
draws its Answer to the Complaint and Compliance Specification in
connection with the above referenced matter [Case 7–CA–50288].
The General Counsel’s Motion for Default Judgment refers to Re-
spondent Shane as having withdrawn its “Amended Answer to the
Complaint and Compliance Specification.” Based on the context of the
letter, and in the absence of a response to the Notice to Show Cause or
to the General Counsel’s motion, we consider the withdrawal letter
from counsel for Respondent Shane as having withdrawn both the
answer and amended answer.
On January 4, 2008, the General Counsel filed with the
Board a Motion for Default Judgment, with exhibits at-
tached. The General Counsel noted that his motion was
directed only against Respondent Shane, because the
Regional Director approved a conditional settlement
agreement between Local 771, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO (the Union) and J&J Land
LLC (Respondent J&J) on October 15, 2007. Thereafter,
on January 9, 2008, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. Respon-
dent Shane filed no response. The allegations in the mo-
tion and in the consolidated complaint and compliance
specification are therefore undisputed.5
Ruling on Motion for Default Judgment6
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed within 21 days from service of the compliance
specification. In addition, the consolidated complaint
and compliance specification affirmatively stated that
unless an answer was filed by August 21, 2007, the
Board could find that the allegations in the consolidated
complaint and compliance specification are true.
Here, according to the uncontroverted allegations of
the motion for default judgment, although Respondent
Shane initially filed an answer and amended answer to

5 Respondent J&J filed a limited objection to the order transferring
proceeding to the Board and Notice to Show Cause, requesting that the
Board limit any default judgment or other Order to Respondent Shane
only and make this clarification in both the title and the body of the
Order. We shall not amend the case caption because, inter alia, the
settlement agreement referred to in fn. 1 above indicates (1) that Re-
spondent J&J’s status in this proceeding as a single employer with
Respondent Shane will depend on the resolution of that issue in Cases
7–CA–47710 and 7–CA–48016, and that (2) if Respondent J&J is
found to be a single employer in that proceeding, it “will be liable for
any unfair labor practices admitted to by” Respondent Shane. But, in
light of the settlement agreement, and consistent with the General
Counsel’s motion, the provisions of this Order are directed only against
Respondent Shane.
6 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,
Members Liebman and Schaumber 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the consolidated complaint and compliance specification,
Respondent Shane, by counsel, withdrew its answer and
amended answer on December 20, 2007. The with-
drawal of an answer has the same effect as a failure to
file an answer, i.e., the allegations in the compliance
specification must be considered to be true.7
Accordingly, based on the withdrawal of Respondent
Shane’s answer and amended answer to the consolidated
complaint and compliance specification, and in the ab-
sence of good cause being shown otherwise, we deem the
allegations in the consolidated complaint and compliance
specification to be admitted as true, and we grant the
General Counsel’s Motion for Default Judgment against
Respondent Shane. On the entire record, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Shane has been a
Michigan corporation with an office and place of busi-
ness located at 17495 Malyn Boulevard, Fraser, Michi-
gan, and has been engaged in the manufacture and proc-
essing of commercial steel bars.
During the calendar year 2006, Respondent Shane, in
conducting its operations described above, received gross
revenue in excess of $500,000 and purchased and re-
ceived at its Fraser facility goods and materials valued in
excess of $50,000 directly from points outside the State
of Michigan.
We find that Respondent Shane is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union and the Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW), AFL–
CIO (the International Union), are labor organizations
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, John Hartley held the position of
president of Respondent Shane and has been a supervisor
of Respondent Shane within the meaning of Section
2(11) of the Act and an agent of Respondent Shane
within the meaning of Section 2(13) of the Act. At all
material times, Jane McNamara has been a supervisor of
Respondent Shane within the meaning of Section 2(11)
of the Act and an agent of Respondent Shane within the
meaning of Section 2(13) of the Act.8

7 See Maislin Transport, 274 NLRB 529 (1985).
8 The consolidated complaint and compliance specification also al-
leges that John Hartley and Jane McNamara are 50 percent members of
Respondent J&J, and have been supervisors and agents of Respondent
J&J within the meaning of Section 2(11) and (13) of the Act. As noted
above, Respondent J&J entered into a settlement agreement with the
The following employees of Respondent Shane consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees, including shipping and receiv-
ing employees, employed by Respondent Shane at its
facility at 17495 Malyn Boulevard, Fraser, Michigan;
but excluding all office clerical employees, and guards
and supervisors as defined in the Act.
Since about March 9, 1976, and at all material times,
based on Section 9(a) of the Act, the International Union
has been the exclusive collective-bargaining representa-
tive of the unit and has been recognized as such by Re-
spondent Shane. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which was effective by its terms from March
17, 2000 to March 17, 2002.
At all material times, based on Section 9(a) of the Act,
the International Union has been the exclusive collective-
bargaining representative of the unit.
The International Union has assigned its representative
responsibilities with respect to the unit to the Union.
About December 1, 2006, Respondent Shane unilater-
ally eliminated dental and vision coverage for unit em-
ployees.
About December 29, 2006, Respondent Shane unilat-
erally changed the unit employees’ payday.
Since about January 1, 2007, Respondent Shane uni-
laterally failed to pay vacation pay to unit employees.
Since about February 25, 2007, Respondent Shane uni-
laterally failed to pay unit employees for hours worked.
About March 22, 2007, Respondent Shane failed to
provide the Union proper notice and a meaningful oppor-
tunity to bargain regarding the layoff of unit employees
and subsequent closing.
About April 2007, Respondent Shane unilaterally
eliminated health insurance coverage for unit employees
retroactive to December 19, 2006.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
Respondent Shane engaged in the conduct set forth
above without affording the Union notice and a meaning-
ful opportunity to bargain about these changes and their
effects on the unit.

Union. Accordingly, we do not make any findings with respect to
Respondent J&J.
SHANE STEEL PROCESSING, INC. 3
CONCLUSION OF LAW
By the acts and conduct described above, Respondent
Shane has failed and refused to bargain collectively and
in good faith with the exclusive collective-bargaining
representative of its employees in violation of Section
8(a)(5) and (1) of the Act. Respondent Shane’s unfair
labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent Shane has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act. Specifically, having
found that Respondent Shane violated Section 8(a)(5)
and (1) of the Act by unilaterally (1) eliminating dental
and vision coverage for unit employees; (2) changing the
unit employees’ payday; (3) failing to pay vacation pay
to unit employees; (4) failing to pay unit employees for
hours worked; (5) eliminating health insurance coverage
for unit employees retroactive to December 19, 2006;
and (6) failing to provide the Union proper notice and a
meaningful opportunity to bargain regarding the layoff of
unit employees and subsequent closing, we shall order
Respondent Shane to make unit employees whole by
paying them the amounts set forth in the compliance
specification, plus interest accrued to the date of payment
as set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987), and minus tax withholdings required
by Federal and State laws.
To remedy Respondent Shane’s unlawful failure to
bargain with the Union about the effects of its decision to
close its facility, we shall order Respondent Shane to
bargain with the Union, on request, about the effects of
that decision. As a result of Respondent Shane’s unlaw-
ful conduct, however, the unit employees have been de-
nied an opportunity to bargain through their collective-
bargaining representative. Meaningful bargaining cannot
be assured until some measure of economic strength is
restored to the Union. A bargaining order alone, there-
fore, cannot serve as an adequate remedy for the unfair
labor practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed to make
whole the unit employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
Respondent Shane. We shall do so by ordering Respon-
dent Shane to pay backpay to the terminated unit em-
ployees in a manner similar to that required in Transma-
rine Navigation Corp., 170 NLRB 389 (1968), as clari-
fied by Melody Toyota, 325 NLRB 846 (1998).
Pursuant to Transmarine, Respondent Shane typically
would be required to pay its unit employees backpay at
the rate of their normal wages when last in Respondent
Shane’s employ from 5 days after the date of this Deci-
sion and Order until the occurrence of the earliest of the
following conditions: (1) the date Respondent Shane
bargains to agreement with the Union on those subjects
pertaining to the effects of closing its facility on its em-
ployees; (2) a bona fide impasse in bargaining; (3) the
Union’s failure to request bargaining within 5 business
days after receipt of this Decision and Order, or to com-
mence negotiations within 5 business days after receipt
of Respondent Shane’s notice of its desire to bargain
with the Union; or (4) the Union’s subsequent failure to
bargain in good faith.
Transmarine provides that the sum paid to these unit
employees may not exceed the amount they would have
earned as wages from the date on which Respondent
Shane ceased doing business at the facility to the time
they secured equivalent employment elsewhere, or the
date on which Respondent Shane shall have offered to
bargain in good faith, whichever occurs sooner. How-
ever, Transmarine further provides that in no event shall
this sum be less than the unit employees would have
earned for a 2-week period at the rate of their normal
wages when last in Respondent Shane’s employ. Back-
pay is typically based on earnings which the unit em-
ployees would normally have received during the appli-
cable period, less any net interim earnings, and is com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, supra.
Here, in the circumstances of Respondent Shane’s ces-
sation of operations, the General Counsel in the compli-
ance specification seeks only the minimum 2 weeks of
backpay due the terminated employees under Transma-
rine. Attachments 1 through 4 to the consolidated com-
plaint and compliance specification set forth the amount
due each employee. We shall grant the General Coun-
sel’s request and order Respondent Shane to pay those
amounts to the discriminatees, plus interest accrued to
the date of payment.
Further, in view of the fact that Respondent Shane’s
facility is closed, we shall order Respondent Shane to
mail a copy of the attached notice to the Union and to the
last known addresses of its former unit employees in
order to inform them of the outcome of this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that Re-
spondent Shane Steel Processing, Inc., Fraser, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Local 771, International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America (UAW), AFL–CIO, as the exclusive
collective-bargaining representative of the employees in
the unit by unilaterally eliminating dental and vision
coverage for unit employees; changing the unit employ-
ees’ payday; failing to pay vacation pay to unit employ-
ees; failing to pay unit employees for hours worked;
eliminating health insurance coverage for unit employees
retroactive to December 19, 2006; and failing to provide
proper notice and a meaningful opportunity to bargain
regarding the layoff of unit employees and subsequent
closing. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees, including shipping and receiv-
ing employees, employed by Respondent Shane at its
facility at 17495 Malyn Boulevard, Fraser, Michigan;
but excluding all office clerical employees, and guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union concerning the
effects on the unit employees of Respondent Shane’s
decision to close its Fraser, Michigan facility, and reduce
to writing and sign any agreement reached as a result of
such bargaining.
(b) Make the unit employees whole for any loss of
earnings and other benefits suffered as a result of Re-
spondent Shane’s change of unit employees’ payday and
its failure to pay dental and vision coverage, vacation
pay, wages for hours worked, and health insurance cov-
erage, and its failure to bargain with the Union concern-
ing the effects on unit employees of its decision to close
its Fraser, Michigan facility, by paying them the amounts
following their names, plus interest accrued to the date of
payment, as set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987), and minus tax withholdings
required by Federal and State laws:
Robert Hayes $ 5,746.63
William Koch 5,593.62
Kenneth LaFleur 5,147.38
Nick Maltese 4,838.21
William Martin 4,804.64
Patrick Randazzo 4,095.07
Richard Regelin 2,297,46
Robert Rochner 5,012.47
Julia Vargas 6,047.80
Mirko Vitanoski 5,144.83
Frederick Wendt 5,649.95
Howard Wucetich 5,433.12
TOTAL $ 59,811.18
(c) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by Respondent Shane’s authorized representative, copies
of the attached notice marked “Appendix”9 to the Union
and to all unit employees employed by Respondent
Shane on or after December 1, 2006.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent Shane has taken to
comply.
Dated, Washington, D.C. February 29, 2008
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 mail and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SHANE STEEL PROCESSING, INC. 5
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively and
in good faith with Local 771, International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America (UAW), AFL–CIO, as the exclusive
collective-bargaining representative of unit employees by
eliminating dental and vision coverage for unit employ-
ees; changing unit employees’ payday; failing to pay
vacation pay to unit employees; failing to pay unit em-
ployees for hours worked; eliminating health insurance
coverage for unit employees retroactive to December 19,
2006; and failing to provide proper notice and a mean-
ingful opportunity to bargain regarding the layoff of unit
employees and subsequent closing of our Fraser, Michi-
gan facility. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees, including shipping and receiv-
ing employees, employed by us at our facility at 17495
Malyn Boulevard, Fraser, Michigan; but excluding all
office clerical employees, and guards and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union concern-
ing the effects on the unit employees of our decision to
close our Fraser, Michigan facility, and reduce to writing
and sign any agreement reached as a result of such bar-
gaining.
WE WILL make whole the unit employees for losses
suffered as a result of our change of unit employees’
payday and our failure to pay dental and vision coverage,
vacation pay, wages for hours worked, and health insur-
ance coverage, and to bargain with the Union concerning
the effects on the unit employees of our decision to close
our Fraser, Michigan facility, by paying them the
amounts following their names, with interest.
Robert Hayes $ 5,746.63
William Koch 5,593.62
Kenneth LaFleur 5,147.38
Nick Maltese 4,838.21
William Martin 4,804.64
Patrick Randazzo 4,095.07
Richard Regelin 2,297,46
Robert Rochner 5,012.47
Julia Vargas 6,047.80
Mirko Vitanoski 5,144.83
Frederick Wendt 5,649.95
Howard Wucetich 5,433.12
TOTAL $ 59,811.18
SHANE STEEL PROCESSING, INC. AND J&J LAND
LLC