OUTOKUMPU STAINLESS USA, LLC f/k/a THYSSENKRUPP STAINLESS USA, LLC, (2017)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Outokumpu Stainless USA, LLC f/k/a Thyssenkrupp Stainless USA, LLC and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC. Cases 15–CA– 070319 and 15–CA–073053

September 7, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On February 29, 2016, Administrative Law Judge Jeffrey D. Wedekind issued the attached decision. The Respondent filed exceptions¹ and a supporting brief. The General Counsel filed cross-exceptions, and the General Counsel and the Charging Party each filed an answering brief to the Respondent’s exceptions. The Respondent filed a reply brief to the General Counsel’s answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions, to amend the remedy, and to adopt the recommended Order as modified and set forth in full below.²

The General Counsel seeks default judgment based on the Respondent’s noncompliance with an informal settlement agreement. He alleges that the Respondent breached the settlement agreement by posting, next to the

¹ The General Counsel urges the Board to strike the Respondent’s exceptions, arguing that the exceptions fail to comply with the Board’s Rules and Regulations. Specifically, the General Counsel contends that all of the Respondent’s exceptions fail to designate the precise portion of the record relied upon, and that certain of the Respondent’s exceptions either misidentify or fail to identify the portion of the judge’s decision to which objection is made so as to render the exception indecipherable. Because the General Counsel maintains that the Respondent has not filed any valid exceptions, he likewise urges the Board to strike the Respondent’s brief in support of its exceptions. The Board has discretion in determining compliance with its regulations, and we find that the Respondent’s exceptions and brief substantially comply with the applicable rules. See, e.g., Solutia, Inc., 357 NLRB 58, 58 fn. 1 (2011), enfd. 699 F.3d 50 (1st Cir. 2012); see also Zurn Nepco, 316 NLRB 811, 811 fn. 1 (1995) (declining to strike exceptions where brief sufficiently indicates the portions of the record relied upon). Accordingly, we deny the General Counsel’s motion to strike the Respondent’s exceptions and supporting brief.

² We have amended the remedy and modified the judge’s recommended Order consistent with the allegations in the amended complaint and our legal conclusions herein.

Board’s remedial notice, a side letter that detracted from the effectiveness of the notice, and he contends that entry of default judgment on the previously settled unfair labor practice allegations is warranted. The judge found that the Respondent breached the settlement agreement as alleged, and he granted the motion for default judgment. We agree and affirm.

The settlement agreement was executed by and between the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC (Union) and the Respondent³ to resolve two unfair labor practice charges filed by the Union, on December 7, 2011, and January 24, 2012. Included in these charges were allegations that the Respondent engaged in surveillance and created the impression of surveillance of employees’ protected activities, threatened that employees would lose everything and collective bargaining would start from zero if the Union were voted in, unlawfully changed its workplace discussion policy and enforced it disparately, subsequently promulgated in writing an overly broad no-discussion-during-working-hours policy, and disciplined employees John Dees and Mac[k] Royster for violating this overly broad no-discussion policy.⁴ The Union filed its initial charge 6 days in advance of a representation election scheduled for December 13 and 14, 2011. To protect the right of employees “to an election that reflects their untrammeled views,” and in accordance with Board policy, the election was postponed until the charges could be resolved. Mark Burnett Productions, 349 NLRB 706, 707 (2007).

On April 30, 2012, the parties entered into the settlement agreement referenced above. Under the terms of the settlement agreement, the Respondent agreed to rescind the allegedly overbroad no-discussion policy, rescind the discipline issued to employees Dees and Royster and inform them of the same, allow employees to discuss the Union during working hours, and post an official NLRB notice at its facility and on its intranet for 60 days.⁵ The following language in the settlement

³ At the time the settlement agreement was entered into, the Respondent was referred to as the “Charged Party” since complaint had not issued on the Union’s unfair labor practice charges.

⁴ The charges also included several additional allegations that did not appear in the settlement agreement. These additional allegations were withdrawn or omitted from an amended charge filed on March 27, 2012.

⁵ The agreed-upon notice stated as follows:

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

agreement sets forth the consequences of noncompliance with the agreement’s terms:

The Charged Party agrees that in case of noncompliance with any of the terms of this Settlement Agreement by the Charged Party, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party, the Regional Director will issue a complaint that will include the allegations spelled out above in the Scope of Agreement section. Thereafter, the General Counsel may file a motion for default judgment with the Board on the allegations of the complaint. The Charged Party understands and agrees that all of the allegations of the complaint will be deemed admitted and it will have waived its right to file an Answer to such complaint. The only issue that may be raised before the Board is whether the Charged Party defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is appropriate to remedy such violations. The parties further agree that a U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte, after service or attempted service upon Charged Party/Respondent at the last address provided to the General Counsel.

Choose not to engage in any of these protected activities.

WE WILL NOT do anything to prevent you from exercising the above rights.

WE WILL NOT threaten you with loss of benefits or tell you that you will lose everything and start from zero if you choose to be represented by or support a Union.

WE WILL NOT make it appear to you that we are watching out for your Union activities.

WE WILL NOT watch you in order to find about [sic] your Union activities.

WE WILL NOT tell you that you cannot talk about or discuss the Union while on working time while we allow you to talk about or discuss other subjects while on working time and WE WILL repeal the rule promulgated in a written discipline on that subject.

WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.

WE WILL rescind in writing any and all discipline employees received, including that given to employees Mack Royster and John Dees, as a result of a rule prohibiting discussion or talk about the Union during working hours, and WE WILL notify all affected employees that their discipline was removed from our files and that it will not affect them in any way in the future.

WE WILL allow you to discuss or talk about the Union during working hours while we allow you to talk about or discuss other subjects while on working time.

The Respondent rescinded the allegedly overbroad nodiscussion policy, rescinded the discipline issued to Dees and Royster and informed them of the same, and allowed employees to discuss the Union during working hours. On May 17, 2012, the Respondent also posted the remedial notice on its intranet and main bulletin board. On May 7, 2012, however, before posting the notice, the Respondent emailed to its employees and posted on its main bulletin board a letter in response to the unfair labor practice allegations. Once the remedial notice was posted, the letter remained posted in close proximity to the remedial notice throughout the 60-day notice-posting period required by the settlement agreement. The letter stated that unfair labor practice charges were filed by the Union “just prior” to the December 2011 election “to block the election from occurring.” The letter blamed the Union for preventing employees from exercising their “right to vote and have a choice” and stated that a Board hearing “would only delay your opportunity to have your voices heard by voting.” In addition, the letter asserted that the Respondent “believes it has not violated any laws,” emphasized that the Board had not found it “guilty of any of the allegations,” and asserted...