Elpex International Lumber Co.

National Labor Relations Board - Board Decisions

Aug 9, 1976

225 N.L.R.B. 875 (N.L.R.B. 1976)

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