Jerstedt Lumber Co., Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 662 (N.L.R.B. 1974)

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.