Lewis Goodman Wood Products

National Labor Relations Board - Board Decisions

Dec 6, 2007

351 N.L.R.B. 66 (N.L.R.B. 2007)

351 NLRB No. 66
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.
Ellrich Corporation d/b/a Lewis Goodman Wood
Products and Carpenters’ District Council of
Kansas City and Vicinity, AFL–CIO, affiliated
with United Brotherhood of Carpenters and
Joiners of America. Case 17–CA–23894
December 6, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Based on a charge and an
amended charge filed by Carpenters’ District Council of
Kansas City and Vicinity, AFL–CIO, affiliated with
United Brotherhood of Carpenters and Joiners of Amer-
ica, on June 12 and July 12, 2007, respectively, the Gen-
eral Counsel issued a complaint on August 31, 2007,
against Ellrich Corporation d/b/a Lewis Goodman Wood
Products, the Respondent, alleging that it has violated
Section 8(a)(5) and (1) of the Act. The Respondent
failed to file an answer.
On October 2, 2007, the General Counsel filed a Mo-
tion for Default Judgment with the Board. On October
11, 2007, the Board issued an order transferring the pro-
ceeding 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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 stated
that unless an answer was filed by September 14, 2007,
all of the allegations in the complaint could be consid-
ered admitted as true. Further, the undisputed allegations
in the motion disclose that the Region, by letter dated
September 17, 2007, notified the Respondent that an an-
swer to the complaint had not been filed and that unless
an answer was received by the close of business on Sep-
tember 24, 2007, a motion for default judgment would be
filed. The letter also confirmed counsel for the General
Counsel’s understanding, based on a phone conversation
with the Respondent’s president, that the Respondent did
not intend to file an answer. To date, no answer to the
complaint has been 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 default judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with its office and place of business in Kansas City, Mis-
souri (the Respondent’s facility), has been engaged in the
business of designing and manufacturing architectural
millwork.
During the 12-month period ending July 31, 2007, the
Respondent, in conducting its business operations de-
scribed above, purchased and received at its facility
goods valued in excess of $50,000 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
At all material times, David Ellrich has held the posi-
tion of the Respondent’s president, and has been a super-
visor of the Respondent within the meaning of Section
2(11) of the Act and an agent of the Respondent within
the meaning of Section 2(13) of the Act.
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All production and maintenance employees, excluding
delivery truck drivers, hardwood finishers, office, cleri-
cal and supervisory employees.
Since on about June 1, 2006, 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 the
Respondent’s adoption of a collective-bargaining agree-
ment covering unit employees, effective from April 1,
2006, to March 31, 2007, between the Union and the
Respondent’s predecessor, Lewis Goodman Wood Prod-
ucts.
At all times since about June 1, 2006, the Union has
been the exclusive collective-bargaining representative of
the unit.
On about April 25, 2007, the Respondent insisted that,
as a condition of reaching a collective-bargaining agree-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ment, the Union agree to allow the Respondent to offer
different pension and health and welfare benefits to unit
employees based on their union membership.
The condition described above is prohibited by Section
8(a)(3) of the Act.
On about April 27, 2007, the Respondent bargained to
impasse over the condition described above.
On about May 4, 2007, the Respondent unilaterally
implemented its proposal to offer different pension and
health and welfare benefits to unit employees based on
their union membership.
On about April 1, 2007, the Respondent unilaterally
eliminated payments of $3.15 per hour for each hour
worked by each unit employee to Carpenter’s District
Counsel Pension Fund; payments of $4.50 per hour for
each hour worked by each unit employee to Carpenters’
Health and Welfare Plan of Kansas City and Vicinity;
and payments of 7 cents per hour for each hour worked
by each unit employee to Cabinet Markers and Millmen
Joint Apprenticeship Committee.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above without first bargaining with the Union to a good-
faith impasse.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
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)(5) and (1) 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 violated Section 8(a)(5) and
(1) of the Act by failing to bargain in good faith by in-
sisting to impasse on an unlawful condition to reaching
an agreement and by unilaterally implementing its pro-
posal to offer different pension and health and welfare
benefits to unit employees based on their union member-
ship, we shall order the Respondent, on request, to bar-
gain in good faith with the Union until an agreement or a
good-faith impasse in negotiations is reached. In addi-
tion, we shall order the Respondent to restore the status
quo ante that existed prior to its unlawful change and
make its unit employees whole for any losses they may
have suffered as a result of the Respondent’s unlawful
implementation of its bargaining proposal.
Further, having found that the Respondent unilaterally
eliminated payments on behalf of unit employees to the
Carpenter’s District Counsel Pension Fund, the Carpen-
ters’ Health and Welfare Plan of Kansas City and Vicin-
ity, and the Cabinet Markers and Millmen Joint Appren-
ticeship Committee without first bargaining with the Un-
ion to a good-faith impasse, we shall order the Respon-
dent to make all required contributions that have not
been made on behalf of the unit employees since April 1,
2007, including any additional amounts due the funds in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).1 The Respondent shall also be
required to reimburse unit employees for any expenses
ensuing from its failure to make the required contribu-
tions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), affd. mem. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Ellrich Corporation d/b/a Lewis Goodman
Wood Products, Kansas City, Missouri, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with Carpenters’
District Council of Kansas City and Vicinity, AFL–CIO,
affiliated with United Brotherhood of Carpenters and
Joiners of America, as the exclusive collective-
bargaining representative of its unit employees by insist-
ing to impasse on an unlawful condition to reaching an
agreement and by unilaterally implementing its proposal
to offer different pension and health and welfare benefits
to unit employees based on their union membership. The
appropriate unit is:
All production and maintenance employees, excluding
delivery truck drivers, hardwood finishers, office, cleri-
cal and supervisory employees.

1 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Employer’s delin-
quent contributions during the period of delinquency, the Respondent
will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
LEWIS GOODMAN WOOD PRODUCTS 3
(b) Unilaterally eliminating required payments on be-
half of unit employees to the Carpenter’s District Coun-
sel Pension Fund; the Carpenters’ Health and Welfare
Plan of Kansas City and Vicinity; and the Cabinet Mark-
ers and Millmen Joint Apprenticeship Committee.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise 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 in good faith with the Union
until an agreement or a good-faith impasse in negotia-
tions is reached.
(b) Rescind its unilateral implementation of its pro-
posal to offer different pension and health and welfare
benefits to unit employees based on their union member-
ship, and make its unit employees whole for any losses
they may have suffered as a result of the Respondent’s
unlawful implementation of its proposal.
(c) Make all required benefit fund payments and con-
tributions on behalf of unit employees that have not been
made since April 1, 2007, and reimburse unit employees
for any expenses ensuing from its failure to make the
required payments, with interest, in the manner set forth
in the remedy section of this decision.
(d) Preserve, and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Kansas City, Missouri, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
17, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the

2 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since April 1,
2007.
(f) 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. December 6, 2007
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED 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 Federal labor law and has ordered us to post and obey
this notice.
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail to bargain in good faith with Carpen-
ters’ District Council of Kansas City and Vicinity, AFL–
CIO, affiliated with United Brotherhood of Carpenters
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
and Joiners of America, as the exclusive collective-
bargaining representative of our unit employees by in-
sisting to impasse on an unlawful condition to reaching
an agreement and by unilaterally implementing our pro-
posal to offer different pension and health and welfare
benefits to unit employees based on their union member-
ship. The appropriate unit is:
All production and maintenance employees, excluding
delivery truck drivers, hardwood finishers, office, cleri-
cal and supervisory employees.
WE WILL NOT unilaterally eliminate required payments
on behalf of our unit employees to the Carpenter’s Dis-
trict Counsel Pension Fund; the Carpenters’ Health and
Welfare Plan of Kansas City and Vicinity; and the Cabi-
net Markers and Millmen Joint Apprenticeship Commit-
tee.
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 in good faith with Car-
penters’ District Council of Kansas City and Vicinity,
AFL–CIO, affiliated with United Brotherhood of Car-
penters and Joiners of America until a new agreement or
good-faith impasse in negotiations is reached.
WE WILL rescind our unilateral implementation of our
proposal to offer different pension and health and welfare
benefits to unit employees based on their union member-
ship, and WE WILL make our unit employees whole for
any losses they may have suffered as a result of our
unlawful implementation of our proposal.
WE WILL make all required benefit fund payments and
contributions on behalf of our unit employees that have
not been made since April 1, 2007, and WE WILL reim-
burse unit employees for any expenses ensuing from our
failure to make the required payments, with interest.
ELLRICH CORPORATION D/B/A LEWIS GOODMAN
WOOD PRODUCTS