Elpex International Lumber Co.

ELPEX INTERNATIONAL LUMBER COMPANY 875 Elpex International Lumber Company and Local Union 3-3, International Woodworkers of America, AFL-CIO. Case 36-CA-2814 August 9, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge and amended charge filed on De- cember 19, 1975, and April 26, 1976, respectively, by Local Union 3-3, International Woodworkers of America, AFL-CIO, herein called the Union, and duly served on Elpex International Lumber Compa- ny, herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint and notice of hearing on April 30, 1976, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, amended charge, and complaint and notice of hear- ing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges that on or about December 8, 1975, Respondent (1) told its employees that the plant would be shut down if the Union came in and (2) laid off employees Ronie Crose, Dennis DeVet, Mi- chael Duran, Richard McKenna, Thomas P. Palmer, Michael L. Piercy, Douglas Reese, and Mike Simcoe because of their membership in, or activities on be- half of, the Union. The complaint further alleges that on or about December 17, 1975, and January 19, 1976, respectively, Respondent recalled all the laid- off employees except Michael Duran. Respondent failed to file an answer. On May 20, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently on June 4, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the Notice To Show Cause so the allegations of the Mo- tion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be ad- mitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on Re- spondent specifically stated that unless an answer to the complaint was filed within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." Further, according to the un- controverted allegations of the Motion for Summary Judgment, counsel for the General Counsel tele- phoned both Respondent's president and its attorney after the time for answering had elapsed and remind- ed them of Respondent's default and the conse- quences thereof. By letter to Respondent's attorney dated May 11, 1976, attached to the Motion for Sum- mary Judgment, counsel for the General Counsel confirmed the telephone conversation with Respondent's attorney in which the latter also stated that Respondent was no longer in existence and that he had no intention of answering the complaint. In view of Respondent's failure to answer, under the rule set forth above, no good cause having been shown for such failure, the allegations of the com- plaint are deemed admitted and are found to be true. Accordingly, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Oregon corporation with office and place of business located at 2139 N. Kirby, Portland, Ore- gon. It is engaged in the business of finishing or re- 225 NLRB No. 124 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manufacturing lumber to make flooring, steps, sid- ing, and related wood products. Respondent, during the past 12 months, which period is representative of all times material herein, sold and shipped from its Portland, Oregon, plant, lumber products valued in excess of $50,000 to points outside the State of Ore- gon. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assertjuris- diction herein. gaging in unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. II. THE LABOR ORGANIZATION INVOLVED Local Union 3-3, International Woodworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Violations On or about December 8, 1975, Respondent told its employees that the plant would be shut down if the Union came in. Accordingly, we find that by the aforesaid conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and by such conduct Respondent has engaged in unfair la- bor practices within the meaning of Section 8(a)(1) of the Act. B. The 8(a)(3) and (1) Violations On or about December 8, 1975, Respondent laid off employees Ronie Crose , Dennis DeVet, Michael Duran , Richard McKenna, Thomas P. Palmer, Mi- chael L . Piercy, Douglas Reese, and Mike Simcoe because of their membership in, or activities on be- half of, the Union . On or about December 17, 1975, Respondent recalled Rome Crose, Richard McKen- na, and Douglas Reese and , on or about January 19, 1976, Respondent recalled Dennis DeVet, Thomas P. Palmer, Michael L. Peircy, and Mike Simcoe. Accordingly, we find that by its aforesaid layoff of employees Crose, DeVet, Duran, McKenna, Palmer, Piercy, Reese, and Simcoe, the Respondent discrimi- nated in regard to the terms and conditions of em- ployment of its employees , thereby discouraging membership in a labor organization , and that, by such conduct, the Respondent engaged in and is en- V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(I) and (3) of the Act, we shall order that it cease and desist therefrom, and that it take certain affirmative action as set forth below de- signed to effectuate the purposes and policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by laying off employees Crose, DeVet, Duran, McKenna, Palmer, Piercy, Reese, and Simcoe on December 8, 1975, we shall order Respondent to make whole the recalled em- ployees for any loss of wages they may have suffered as a result of their layoff by paying Crose, McKenna, and Reese a sum of money equal to that which each normally would have earned as wages from Decem- ber 8 until December 17, 1975, when they were re- called, and by paying DeVet, Palmer, Piercy, and Simcoe a sum of money equal to that which each normally would have earned as wages from Decem- ber 8, 1975, until January 19, 1976, when they were recalled, less the net earnings of each during such period with backpay and interest thereon to be com- puted in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As employee Duran has not been recalled, we shall also order Re- spondent to offer him immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to any seniority or other rights or privileges enjoyed and to make him whole for any loss of wages he may have suffered as a result of his layoff by paying him a sum of money equal to that which he normally would have earned as wages from December 8, 1975, to the date of Respondent's offer of reinstatement, less net earnings during such peri- od, with backpay and interest thereon to be comput- ed in the manner prescribed in F. W. Woolworth ELPEX INTERNATIONAL LUMBER COMPANY 877 Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). We also expressly reserve the right to make such supplements to the backpay and reinstatement provi- sions of this Decision and Order as may hereafter become necessary in order to define or clarify their application to circumstances not now apparent. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Elpex International Lumber Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 3-3, International Woodworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, A, above, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guar- anteed in Section 7 of the Act and has thereby en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By the acts described in section III, B, above, Respondent has discriminated, and is discriminating, in regard to hire or tenure of employment or any term or condition of employment to discourage membership in any labor organization, and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, El- pex International Lumber Company, Portland, Ore- gon, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Telling its employees that the plant would be shut down if the Union came in. (b) Laying off employees because of their mem- bership in, or activities on behalf of, the Union. (c) Discouraging membership in Local Union 3-3, International Woodworkers of America , AFL-CIO, or any other labor organization, by discriminatorily laying off employees or by otherwise discriminating in regard to hire or tenure of employment or any term or condition of their employment. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Ronie Crose, Dennis DeVet, Richard McKenna, Thomas P. Palmer, Michael L. Piercy, Douglas Reese, and Mike Simcoe for any loss of wages suffered as a result of their layoffs by Re- spondent in the manner set forth above under the section entitled "The Remedy." (b) Offer to Michael Duran immediate and full re- instatement to his former position or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to any seniority or other rights and privileges previously enjoyed and make him whole for any loss of wages suffered as a result of his layoff by Respondent in the manner set forth above in the section entitled "The Remedy." (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 other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Portland, Oregon, facility copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Di- rector for Region 19, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said 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 here- with. IT IS FURTHER ORDERED that the Board reserves to itself the right to modify the backpay and reinstate- ment provisions of this Order, if made necessary by circumstances not now apparent. In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Lo- cal Union 3-3, International Woodworkers of America, AFL-CIO, or any other labor organi- zation, by discriminatorily laying off employees or otherwise discriminate in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT tell employees that the plant will shut down if the Union comes in. WE WILL NOT lay off employees because of their membership in, or activities on behalf of, the Union. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL make whole Ronie Crose, Dennis DeVet, Richard McKenna , Thomas P. Palmer, Michael L. Piercy, Douglas Reese, and Mike Simcoe for any loss of wages suffered as a result of their layoffs with interest at the rate of 6 per- cent per annum. WE WILL offer Michael Duran immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position , without prejudice to any se- niority or other rights and privileges previously enjoyed and make him whole for any loss of wages suffered as a result of his layoff with in- terest at the rate of 6 percent per annum. ELPEX INTERNATIONAL LUMBER COMPANY