Waggner Lumber Co.

332 NLRB No. 34 1 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. Waggener Lumber Company, Inc. and Teamsters Local Union No. 682, affiliated with Interna- tional Brotherhood of Teamsters, AFL–CIO. Case 14–CA–26011 September 29, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND HURTGEN Upon a charge filed by the Union on April 17, 2000, the General Counsel of the National Labor Relations Board issued a complaint on July 28, 2000, against Wag- gener Lumber Company, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. On August 31, 2000, the General Counsel filed a Mo- tion for Summary Judgment with the Board. On Sep- tember 1, 2000, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed allegations in the Mo- tion for Summary Judgment disclose that the Region, by letter dated August 16, 2000, notified the Respondent that unless an answer were received by August 23, 2000, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Missouri cor- poration, with an office and place of business in Crystal City, Missouri, had been engaged in the nonretail sale and distribution of lumber and related products. During the 12-month period ending December 31, 1999, the Re- spondent, in conducting its business operations, pur- chased and received at its Crystal City, Missouri facility goods valued in excess of $50,000 directly from points outside the State of Missouri. During the 12-month pe- riod ending December 31, 1999, the Respondent, in con- ducting its business operations, purchased and received at its Crystal City, Missouri facility goods valued in ex- cess of $50,000 from other enterprises located within the State of Missouri, each of which other enterprises had received these goods directly from points outside the State of Missouri. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent, the unit, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act: All drivers, yardmen, and outside laborers employed by Respondent at its Crystal City, Missouri facility, EXCLUDING office clerical and professional employees, guards and supervisors as defined in the Act, and all other employees. Since about July 1, 1979, and at all material times, the Union has been the designated exclusive collective- bargaining representative of the unit and since then the Union has been recognized as the representative by the Respondent. This recognition has been embodied in suc- cessive collective-bargaining agreements, the most recent of which is effective from July 1, 1997, through February 28, 2001. At all times since about July 1, 1979, based on Section 9(a) of the Act, the Union has been the exclusive collec- tive-bargaining representative of the unit. On December 30, 1999, the Respondent closed its fa- cility and laid off all employees in the unit without notice to the Union and without affording the Union an oppor- tunity to bargain over the effects of the closing and the resulting layoffs. About February 16, April 5 and 6, 2000, the Union, by letter, requested that the Respondent bargain collectively with the Union as the exclusive collective-bargaining representative of the unit over the effects of the closing and the resulting layoffs. Since February 16, 2000, the Respondent has failed and refused to bargain with the Union as the exclusive collective-bargaining representa- tive of the unit over the effects of the closing and the resulting layoffs. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has been failing and refusing to bargain collectively DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and in good faith with the exclusive collective- bargaining representative of its employees, and has thereby engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain 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 the Respondent has violated Section 8(a)(5) and (1) by failing to bargain with the Union concerning the effects on the unit employees of the termination of business operations at its Crystal City, Missouri facility, we shall order the Respondent, on request, to bargain with the Union concerning the effects of its decision to cease operations. As a result of the Respondent’s unlawful failure to bar- gain in good faith with the Union about the effects of its decision to close its facility, the terminated employees have been denied an opportunity to bargain through their collective-bargaining representative. Meaningful bar- gaining cannot be assured until some measure of eco- nomic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate rem- edy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to effec- tuate the purposes of the Act, to require the Respondent to bargain with the Union concerning the effects of clos- ing its facility on its employees, and shall accompany our order with a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the violations and to re-create in some practica- ble manner a situation in which the parties’ bargaining position is not entirely devoid of economic consequences for the Respondent. We shall do so by ordering the Re- spondent to pay backpay to the terminated employees in a manner similar to that required in Transmarine Naviga- tion Corp., 170 NLRB 389 (1968). Thus, the Respondent shall pay its terminated employ- ees backpay at the rate of their normal wages when last in the Respondent’s employ from 5 days after the date of this Decision and Order until occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closing of its facility on its employees; (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 the Respondent’s notice of its desire to bargain with the Union;1 (4) the Union’s subsequent failure to bargain in good faith; but in no event shall the sum paid to these employees exceed the amount they would have earned as 1 Melody Toyota, 325 NLRB 846 (1998). wages from December 30, 1999, the date on which the Respondent terminated its operations, to the time they secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner; provided, however, that in no event shall this sum be less than the employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent’s employ. Backpay shall be based on earnings which the terminated employees would normally have received during the ap- plicable period, less any net interim earnings, and shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In view of the fact that the Respondent’s facility is cur- rently closed, we shall order the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of its former employees in order to in- form them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Respondent, Waggener Lumber Company, Inc., Crystal City, Missouri, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union No. 682, affiliated with International Brotherhood of Teamsters, AFL–CIO, which is the designated exclusive bargaining representative of the Respondent’s employees in an appropriate unit, over the effects of its decision to close its Crystal City, Missouri facility. The appropriate unit consists of: All drivers, yardmen, and outside laborers employed by Respondent at its Crystal City, Missouri facility, EXCLUDING office clerical and professional employ- ees, guards and supervisors as defined in the Act, and all other employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exe rcise 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 the termination of the Respondent’s business operations at its Crystal City, Missouri facility, and the termination of its unit employ- ees. (b) Pay its former employees in the unit described above their normal wages when last in the Respondent’s employ from 5 days after the date of this Decision and Order until occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to WAGGENER LUMBER CO. 3 the effects of the closing of its facility on its employees; (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 commence nego- tiations within 5 business days after receipt of the Re- spondent’s notice of its desire to bargain with the Union; (4) the Union’s subsequent failure to bargain in good faith; but in no event shall the sum paid to these employ- ees exceed the amount they would have earned as wages from December 30, 1999, the date on which the Respon- dent terminated its operations, to the time they secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner; provided, however, that in no event shall this sum be less than the employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent’s employ, with interest, as set forth in the remedy portion of this decision. (c) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (d) Within 14 days after service by the Region, dupli- cate and mail, at its own expense and after being signed by the Respondent’s authorized representative, copies of the attached notice marked “Appendix” 2 to the Union and to all former unit employees employed by the Respondent during December 1999. (e) 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 the Respondent has taken to comply. Dated, Washington, D.C. September 29, 2000 John C. Truesdale, Chairman Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2 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.” 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 the National Labor Relations Act and has ordered us to mail and abide by this notice. WE WILL NOT refuse to bargain with Teamsters Local Union No. 682, affiliated with International Brotherhood of Teamsters, AFL–CIO, which is the designated exclu- sive bargaining representative of our employees in an appropriate unit, over the effects of our decision to close our Crystal City, Missouri facility. The appropriate unit consists of: All drivers, yardmen, and outside laborers employed by us at our Crystal City, Missouri facility, EXCLUDING office clerical and professional employees, guards and supervisors as defined in the Act, and all other employ- ees. 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 the termination of our business operations at our Crystal City, Missouri facility, and the termination of our unit employees. WE WILL pay our former employees in the unit de- scribed above who were employed at the time of our closing their normal wages for the period of time set forth in the decision underlying this notice to employees, with interest. WAGGENER LUMBER COMPANY