Jerstedt Lumber Co., Inc.

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jerstedt Lumber Company, Inc. and Lumber and Sawmill Workers Local 2667, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 19-CA-6619 March 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On December 7, 1973, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, Respondent filed a motion to vacate the Decision of the Administrative Law Judge and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the Respondent's motion to vacate i and its supporting brief, and has decided to affirm the rulings , findings, and conclu- sions of the Administrative Law Judge and to adopt recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Jerstedt Lumber Company, Inc., Bellingham, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, substitut- ing the attached notice for that of the Administrative Law Judge.3 i Respondent did not file exceptions to the Decision of the Administra- tive Law Judge and, in the absence of same, we adopt his findings, conclusions, and recommended Order as our own pursuant to the authority provided in Sec 10(c) of the Act 2 Respondent argues in support of its motion to vacate the Administra- tive Law Judge's Decision that it relied in good faith on the advice of what it thought to be competent counsel and acted without unlawful intent in taking the actions which it now concedes violated the Act It further asserts that subsequent to the hearing in this case it retained new counsel and has since substantially remedied its violations by executing the contract with the Union and making whole the employees who suffered a loss as a result of its refusal to bargain in good faith Consequently, Respondent appeals to the Board to vacate the Administrative Law Judge's Decision in order to spare Respondent the stigma , which might attach to such a Decision in any future proceedings, that Respondent is a habitual violator of the Act We find no basis in Respondent's contentions for setting aside the Administrative Law Judge's Decision. The principle that lacking unlawful intent or relying in good faith on the advice of counsel is no defense to an unfair labor practice charge is so well settled as not to require extensive citation See, e .g., N LR B v Handel Mfg Co, 483 F 2d 350, 353 (C A. 2, 1973) Furthermore, it is not the Board's practice to waive its jurisdiction and thereby deprive the public of the right of enforcement Aacon Contracting Company, Inc, 127 NLRB 1250, 1269. Accordingly, for all the above reasons, Respondent 's motion to vacate must be denied 3 The Administrative Law Judge inadvertently omitted from his proposed notice a provision covering the separate 8(aXl) violation found Accordingly, we shall substitute the attached notice for that provided by the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discuss with our employees in the bargaining unit described below the formation of a cooperative without first notifying and consult- ing Lumber and Sawmill Workers Local 2667, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL upon request forthwith sign the July 16, 1973, agreement reached with Lumber and Sawmill Workers Local 2667, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, and we will give retroactive effect to the terms of the agreement from August 1, 1973. WE WILL make whole any losses our employees in the appropriate unit, described below, may have suffered from the delay in signing the above- mentioned agreement, plus 6-percent interest. The appropriate collective-bargaining unit referred to above is described as follows: All production and maintenance employees, yard employees, and truckdrivers at Respondent's Bellingham, Washington, operation, excluding office clerical employees, technical employees, guards, professional employees, and supervisors as defined in the Act. JERSTEDT LUMBER COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 209 NLRB No. 107 JERSTEDT LUMBER CO., INC. 663 Third Avenue, Seattle, Washington 98101, Tele- phone 206-442-4532. DECISION STATEMENT OF THE CASE DAVID E . DAVIS, Administrative Law Judge : This case came before me on November 27, 1973, at Bellingham, Washington, pursuant to a charge filed on September 4, 1973,1 by the Union 2 and a complaint issued on October 19, 1973, on behalf of the General Counsel by the Regional Director for Region 19 of the National Labor Relations Board, herein called the Board, against Jerstedt Lumber Company, Inc., herein called Respondent . The complaint in substance alleged that Respondent was in violation of Section 8(a)(1) and (5) of the Act in that it has refused and continues to refuse to execute a labor agreement the terms of which had been agreed to by the representatives of the Union and the Respondent on or about July 24, 1973. The complaint further alleged that Respondent , on or about August 27 and 30, 1973, through certain named supervi- sors, met and discussed with certain employees of the appropriate collective-bargaining unit the desirability of forming a "cooperative"; and that as this meeting and discussion was held without notice to and consultation with the Union and without affording the Union an opportunity to be present, Respondent violated Section 8(a)(1) of the Act. Respondent did not file an answer to the complaint. Respondent's counsel appeared at the hearing conducted by me and stated on the record that, after consulting with Respondent's officials, it was decided that they would not file an answer and that they would not execute the labor agreement as it was now constituted because they desired further negotiations of the terms of the agreement. The General Counsel , thereafter, made a motion for summary judgment . Respondent's counsel was then asked by me whether he was aware that failure to file an answer to the complaint constituted an admission of the allega- tions of the complaint . Respondent's counsel replied in the affirmative. Whereupon I declared that under the circum- stances the General Counsel's motion for summary judgment was granted. Upon the basis of the record as described above, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Washington corporation engaged in the Bellingham, Washington, vicinity in the manufacture of lumber products and in the wholesale and retail sales of lumber. During the past year, which period is representa- tive of its annual operations, Respondent's sales exceeded $50,000 to Washington firms which annually make sales directly to customers outside the State of Washington in excess of $50,000. Respondent is, and has been at all times material herein, an employer within the meaning of Section 2(2) of the Act, and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Collective-Bargaining Unit The following unit is now, and at all times material herein has been, a unit appropriate for purposes of bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, yard employees, and truckdrivers at Respondent's Belling- ham, Washington, operation; excluding office clerical employees, technical employees, guards, professional employees, and supervisors as defined in the Act. The Union is now, and at all times material herein has been, the duly-designated representative of a majority of the employees in the unit set out in the above paragraph, and, by virtue of Section 9(a) of the Act, is now, and has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. B. The Refusal to Bargain On or about May 16, 1973, Respondent, acting through its president and owner, Robert Jerstedt, and its attorney, George Livesey, Jr., commenced negotiations with the Union's duly-authorized representatives for the purposes of negotiating a contract covering Respondent's employees in the above-described unit. On or about July 16, 1973, Respondent and the Union reached final agreement on all the terms and conditions of a collective-bargaining contract covering the unit described above. Sometime between July 16 and August 1, 1973, the Union submitted a draft of the agreed-upon contract to Respondent and requested it to execute the same. At all times since said submission, Respondent has refused and does now refuse to execute the agreed-upon contract. As the failure of Respondent to answer constitutes an admission of the allegations of the complaint summarized above, I find that Respondent has refused to bargain with the Union since August 1, 1973, in violation of Section 8(a)(5) of the Act. C. Restraint and Coercion On or about August 27, 1973, Respondent, through Dale Deem and Mel gmeder, its supervisors and agents, discussed the possibility of forming a "cooperative" with certain of its bargaining unit employees. On or about August 30, 1973, Respondent's president, i Served on Respondent on September 5, 1973 2 Lumber and Sawmill Workers Local 2667, United Brotherhood of Carpenters and Joiners of America , AFL-CIO. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Jerstedt, held a meeting with certain of its bargaining unit employees at which time the principles of the "cooperative" were discussed. The acts and conduct set forth above were discussed with bargaining unit employees without notice to, or consultation with, the Union, and without affording the Union an opportunity to be present. As the failure to file an answer constitutes an admission of the foregoing allegations of the complaint, I find that Respondent by dealing directly with employees in the appropriate bargain- ing unit violated Section 8(a)(1) of the Act. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully refused on or about August 1, 1973, to sign an agreement reached with the Union on July 16, 1973, I find it necessary that Respondent be ordered forthwith to execute said agreement and to give retroactive effect to the terms and conditions thereto from August 1, 1973, and to make the unit employees whole for any losses that they may have suffered as a result of the delay in signing the agreement, plus interest at 6 percent per annum as described in Isis Plumbing & Heating Co., 138 NLRB 716. The amount due to said employees pursuant to this remedy is to be determined at the compliance stage. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, yard employees, and truckdnvers at Respondent's Belling- ham, Washington, operation, excluding office clerical employees, technical employees, guards, professional employees, and supervisors as defined in the Act. 4. At all times material herein, the Union has been and is now the exclusive representative of all employees within the above appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. On or about July 16, 1973, Respondent and the Union reached an agreement covering the employees in the above-described appropriate unit. 6. Respondent, by refusing since August 1, 1973, to sign the agreement reached on or about July 16, 1973, has 3 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By meeting with and discussing the formation of a cooperative with certain employees of the bargaining unit on August 27 and 30, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. As I find that Respondent's violations go to the very heart of the Act, I shall recommend a broad Order. Upon the foregoing findings of fact and conclusions of law, upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Jerstedt Lumber Company, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Lumber and Sawmill Workers Local 2667, Puget Sound District Council, by refusing to sign the agreement reached on July 16, 1973, and making it effective as of August 1, 1973. (b) Meeting and discussing with employees of the bargaining unit concerning a cooperative without prior notice to and consultation with the Union. (c) In any manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, forthwith execute the July 16, 1973, agreement as of August 1, 1973, and give retroactive effect to it from August 1, 1973, covering the employees of Respondent in the following appropriate unit: All production and maintenance employees, yard employees, and truckdrivers at Respondent's Belling- ham, Washington, operation, excluding office clerical employees, technical employees, guards, professional employees, and supervisors as defined in the Act. (b) Make whole all employees and/or former employees in the appropriate unit, described above, for any losses suffered by them by the delay in signing the July 16, 1973, agreement in the manner set forth in "The Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its place of business in Bellingham, Washing- ton, copies of the attached notice marked "Appendix. -4 Copies of the notice on forms provided by the Regional Director for Region 19, after being duly signed by an 4 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.", JERSTEDT LUMBER CO., INC. authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to 665 insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.