Terrace Lumber Co.

National Labor Relations Board - Board Decisions

Sep 10, 1965

154 N.L.R.B. 1109 (N.L.R.B. 1965)

TERRACE LUMBER COMPANY 1109
Staten Island Home Improvement Corporation and Edward N.
Olsen , an Individual d/b/a Terrace Lumber Company and
Local 522, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case No. 29-CA-90
(formerly O-CA-10349). September 10, 1965
DECISION AND ORDER
On June 1, 1965, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in certain other labor
practices alleged in the complaint and recommended dismissal as to
them. Thereafter, the General Counsel filed exceptions to the Trial
Examiner's Decision 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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and hereby adopts the findings,' conclusions, and
recommendations 2 of the Trial Examiner, with the following additions
and modifications.
2 The General Counsel excepts to the Trial Examiner 's statement In footnote 9 of his
Decision with regard to the authority allegedly possessed by Taylor. We find merit In
this exception , and we do not adopt that portion of footnote 9.
2 The General Counsel excepts to the inclusion of footnote 10 of the Trial Examiner's
Decision , asserting that it inaccurately implies that the unit herein found appropriate
had been reduced to a one-man unit ( Walsh ) at the time of the hearing , and thus suggests
that Respondent 's bargaining obligation under our order Is necessarily contingent upon
an addition to the unit when the Union requests bargaining . To the extent there may
be such an implication In the footnote , we find merit in the General Counsel 's exception.
The record shows that at the time of the hearing Respondent also employed one Taylor,
whose unit inclusion has not been passed upon because of an unresolved issue, not neces-
sary to decision herein, as to his supervisory status. Moreover , there is nothing in the
record to show, nor is it contended , that Respondent did not intend to replace Maroney
who was in the bargaining unit at the time of the bargaining demand and refusal, but
who had quit prior to the hearing. If as a result of changed circumstances in the unit
occurring since the Respondent 's initial refusal to bargain , a question may arise as to
Respondent 's continued obligation to honor our bargaining order, that matter may be
considered at the compliance stage of this proceeding and need not be passed on now.
154 NLRB No. 90.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additional Conclusions of Law 3
4. By discriminatorily locking out and withholding employment
from employees William Taylor, James Maroney, and Charles Walsh,
and refusing to grant the Union's request to put them back to work
because of their union activity, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (3) of the Act.
5. By these same actions, the Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed them in Sec-
tion 7 of the Act, and has thereby engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Staten Island Home Improve-
ment Corporation and Edward N. Olsen, an individual, d/b/a Terrace
Lumber Company, Staten Island, New York, his agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order, as so modified : 4
Paragraph 1(b) is hereby deleted, and the following paragraph sub-
stituted therefor :
"(b) Discouraging membership in Local 522, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization, by locking out or with-
holding employment from its employees, or in any other manner dis-
criminating in regard to their hire or tenure of employment, or any
term or condition of employment."
The second paragraph of the notice, beginning "WE WILL NOT dis-
courage" is hereby deleted, and the following paragraph substituted
therefor :
WE WILL NOT discourage membership in Local 522, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or in any other labor organization, by locking out
or withholding employment from our employees, or in any other
manner discriminating in regard to their hire or tenure of
employment, or any term or condition of employment.
a The Trial Examiner found that the Respondent violated Section 8 ( a) (3) and (1) of
the Act by discriminatorily locking out and withholding employment from Taylor and
Maroney, and further by rejecting the Union's request to put said employees back to work,
including Walsh, who had joined Taylor and Maroney in picketing the Respondent's
premises . However, he inadvertently omitted these findings in his conclusions of law.
4 Paragraph 2(b) of the Trial Examiner 's Recommended Order, which inadvertently
directs that copies of the notice to be posted shall be furnished by the Regional Director
for Region 13, is amended to read: "Regional Director for Region 29."
TERRACE LUMBER COMPANY 1111
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations not found herein.5
5The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by
various threats of reprisal for union activity attributed to Edward Olsen , owner of Terrace
Lumber Company . The answer denies these allegations . Olsen, at the hearing , denied
having made the statements attributed to him. The Trial Examiner failed to make find-
ings regarding these allegations . No exception to this was filed by the General Counsel.
We therefore dismiss said allegations.
The complaint also alleges that the Respondent unlawfully made unilateral changes in
the wage rates of its employees . The Trial Examiner found that these allegations were
not supported by a preponderance of the evidence , and recommended dismissal of that
portion of the complaint . He Inadvertently omitted such dismissal in his Recommended
Order. This omission is corrected by the above Order.
TRIAL EXAMINER'S DECISION
The charge herein was served upon Respondent on or about October 30, 1964, the
complaint issued on February 26, 1965, and the case was heard on April 26. The
issues litigated ielated to an alleged refusal to bargain, threats of reprisal and dis-
crimination for union activity, and unilateral changes in wage rates.
At the end of the first day of the hearing before Trial Examiner Sidney Sherman,
and before the General Counsel had rested, Respondent 1 indicated that it had no
desire to contest the matter further, and on the record waived its right to present
evidence, to except to any decision I might render, or to contest any order the Board
might enter herein. Respondent further conceded the jurisdiction of the Board
herein. The General Counsel, however, reserved the right to except to any provision
of the Recommended Order herein, and to move that the hearing be reopened to
introduce further evidence. No such motion has as yet been received.
In view of the foregoing consent by Respondent to a final disposition of the case on
the present record, I proceeded at the hearing to read into the record findings of fact,
conclusions of law, and a Recommended Order, disposing of all the issues herein. The
purpose of this Decision is merely to formalize and clarify the action so taken by
me at the hearing.
Upon the entire record,2 and my observation of the witnesses, I adopt the following
findings and conclusions
1. RESPONDENT'S BUSINESS
Staten Island Home Improvement Corporation, a corporation under the laws of
New York State, is engaged at its establishment in Staten Island, New York, in the
construction and remodeling of homes. Its gross receipts during 1964 were substan-
tially less than $50,000. Olsen, doing business as Terrace Lumber Company, operates
a lumber yard in Staten Island, and, during the past year, of its total gross sales of
$112,000, about one-half represented sales to building contractors.
The record shows, and I find, that the bulk of the stock in the corporation is owned
by Olsen and his wife, that Olsen is president of the corporation, and that he con-
stitutes virtually the only active manager of both the corporation and the lumber yard.
I find that the corporation and Olsen, in his capacity as proprietor of the lumber
yard, constitute a single employer within the meaning of the Act.
The complaint alleges, Respondent concedes, and I find, that it annually receives
supplies valued in excess of $50,000, of which more than $40,000 in value was received
directly from out-of-State points,3 and more than $10,000 in value was received from
firms within the State of New York, each of which had received said supplies directly
from out-of-State points.
IIn view of my finding, below , that both Respondents constituted a single employer,
they are referred to herein throughout In the singular.
2 The transcript of testimony is hereby ordered corrected by changing "by" on p. 169,
line 20, to read "bargain with "
8 On the basis of undisputed testimony at the hearing , I find that , during 1964, an
out-of-State supplier , Wyerhaeuser Lumber Company, sold to Respondent , for its lumber
yard, $14,000 worth of lumber . I excluded any further evidence of out-of-State purchases
as cumulative , particularly as Respondent did not dispute the complaint ' s allegation of
$40,000 annual direct Inflow.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent is engaged in commerce under the Act, and that it will
effectuate the policies of the Act to assert jurisdiction herein 4
II. THE LABOR ORGANIZATION INVOLVED
Local 522, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, hereinafter called the Union, is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent (a) violated Section 8(a) (5) and (1) of the
Act by refusing on and after October 29,5 to recognize the Union as the representative
of Respondent's employees, and by unilaterally changing wage rates on or about
November 2, (b) violated Section 8(a)(3) and (1) of the Act by discriminatorily
discharging three employees on or about October 29, and (c) violated Section
8(a) (1) by various threats of reprisals for union activity and by other coercive con-
duct. The answer denied all these allegations.
A. The 8(a)(5) issues
1. The appropriate unit
All parties agree, and I find, that the following unit of Respondent's employees is
appropriate for purposes of collective bargaining:
All yardmen and truckdrivers, excluding carpenters, office clerical employees, pro-
fessional employees, guards, and supervisors as defined in the Act.6
2. Majority status
The record shows, and I find, that by October 27, a majority of the employees in the
aforesaid unit had signed cards authorizing the Union to act as their bargaining agent,
and that they thereby appropriately designated the Union as such representative.7
3. The refusal to bargain
On the basis of a composite of the mutually corroborative testimony of Union
Agent Stiles, and the employee witnesses, I find, notwithstanding Olsen's denial, that
on October 29, union agent, Darche, stated to Olsen that the Union represented
Respondent's employees, requested that he recognize the Union,s and that, after
ascertaining that the employees in fact desired Union representation, Olsen's only
response to the recognition request was to announce that he had no work for the
employees that day Nor has Respondent at any time thereafter offered to recognize
the Union. Accordingly, I find that Respondent has since October 29, refused to rec-
ognize the Union, thereby violating Section 8(a)(5) and (1) of the Act.
4. The unilateral wage increase
The evidence fails to preponderate in favor of a finding that after October 29,
Respondent unilaterally changed the wage rates of its employees . I accordingly
recommended dismissal of this allegation of the complaint.
B. The 8(a) (3) issue
Notwithstanding Olsen's denial, I find on the basis of the mutually corroborative
testimony of the General Counsel's witnesses that on October 29, before the Union's
recognition request, Olsen in effect, indicated to Taylor, and Maroney, that he
intended to use their services that day, but that, upon receiving such request, and ascer-
taining that Taylor and Maroney desired union representation, he abruptly announced
that he had no work for them. I find further, on the basis of Taylor's testimony, that
4 Siemon8 Mailing Service, 122 NLRB 81, 85.
6 All events hereinafter related occurred In 1964, unless otherwise indicated
e As to Respondent's contention that on October 29 there was only one employee in the
unit , see next footnote.
7The General Counsel presented in evidence cards signed on October 26 and 27 by
Taylor, Maroney, and Walsh Even if it be assumed that Taylor was a supervisor (see
footnote 9, below), I find that Maroney and Walsh (who in 1964 spent part of his work-
ing time in the lumberyard) belong in the unit
81 rely here particularly on the testimony of Maroney.
TERRACE LUMBER COMPANY 1113
on November 2, Olsen rehired Taylor and Maroney, after Taylor assured him that
they no longer desired the Union. I find that, by thus withholding employment for
union activity, Respondent violated Section 8(a) (3) and (1) of the Act .9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation 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.
V. THE REMEDY
It having been found that the Respondent violated Section 8(a)(1), (3), and (5)
of the Act, it will be recommended that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain in good faith with the
Union, which represented a majority of the employees in an appropriate unit.
Accordingly, I shall recommend that the Respondent be ordered to bargain, upon
request, in good faith with the Union as the exclusive representative of the employees
in the appropriate unit.10
It has been found that on October 29, and for several days thereafter, Respondent
discriminatorily denied employment to Taylor, Maroney, and Walsh. All three
were subsequently reinstated." At the hearing, all three asserted that they did not
desire any backpay and the Union, likewise, disclaimed any interest in a backpay
award. Under these circumstances, and as the amount of any such award would
apparently be merely nominal, in any event, I do not believe it would effectuate the
policies of the Act, under the circumstances of this case, to make such an award.
In view of the Respondent's unfair labor practices, particularly the discriminatory
conduct found above, there exists a threat of future violations, which warrants a
broad cease-and-desist order.
CONCLUSIONS OF LAW
1. All Respondent's yardmen and truckdrivers, excluding carpenters, office cler-
icals, professional employees, guards, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
2. At all times material the Union has been and still is the exclusive representative
of all the employees in the aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9(a) of the Act
3. By refusing to bargain collectively in good faith with the aforesaid labor orga-
nization as the exclusive representative of its employees in an appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and con-
clusions of law, it is recommended that Respondent, Staten Island Home Improve-
b Walsh arrived at Respondent ' s premises , in the morning of October 29, after Taylor
and Maroney had already been "locked out," and had begun to picket in protest in front
of such premises. Walsh joined the pickets and did not work that day, although Daxche
vainly requested Olsen to put all three to work. By rejecting this request , Respondent
additionally violated Section 8 (a) (3) and (1) of the Act
There was evidence that Taylor had authority to, and did , effectively recommend the
discharge of employees . However , as a finding that Taylor was a supervisor on October 29
would not affect the basic violation findings or the remedy herein, I do not pass on that
issue
10 There was evidence indicating that at the time of the hearing Walsh was the only
current employee in the bargaining unit. Any duty to bargain imposed herein is con-
tingent upon there being at least two employees in such unit at such time as the Union
may request bargaining.
"As found above, Taylor and Maroney were recalled on November 2. Walsh testified
that he did not return to Respondent 's employ until April 1965 However , the General
Counsel offered to place in evidence Walsh's pretrial affidavit, in which he indicated that
he returned to work at the same time as the others . This offer was rejected , as its only
apparent purpose was to impeach the General Counsel's own witness.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment Corporation and Edward Olsen d/b/a Terrace Lumber Company, Staten Island,
New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages, hours of
employment, or other conditions of employment with Local 522 as the exclusive
representative of all its production and maintenance employees, excluding office
clericals, professional employees, guards, and supervisors as defined in the Act.
(b) Discouraging membership in Local 522, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor
organization, by discriminating against employees in regard to their hire or tenure
of employment or any term or condition of employment.
(c) In any other manner, interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right is affected by the
provisos in Section 8(a) (3) of the Act.
2. Take the following affirmative action, which is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively in good faith with Local 522, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of all yardmen and truckdrivers of the Respondent,
excluding carpenters, office clericals, professional employees, guards, and supervisors
as defined in the Act, with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its plant in Staten Island, New York, copies of the attached notice
marked "Appendix." 12 Copies of said notice, to be furnished by the Regional
Director for Region 13, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of at least 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in writing, within 20 days from
the date date of receipt of this Decision, what steps the Respondent has taken to
comply herewith.13
12 In the event that this Recommended Order is adopted by _the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
s3 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain in good faith, upon request, with Local 522, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of all employees in the bargaining unit described
below in respect to rates of pay, wages, hours of employment, or other condi-
tions of employment, and, if an understanding is reached, embody it in a
signed agreement. The bargaining unit is:
All our yardmen and truckdrivers, excluding carpenters, office clericals,
professional employees, guards, and supervisors as defined in the Act.
W. B. JOHNSTON GRAIN COMPANY, ETC. 1115
WE WILL NOT discourage membership in Local 522 , International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, or in
any other labor organization , by discriminating against employees in regard to
their hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to form, join or
assist Local 522, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization , to bargain
collectively through representatives of their own choosing and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any or all such activities , except to
the extent that such right may be affected by the provisos in Section 8(a)(3)
of the Act.
All of our employees are free to become, remain , or refrain from becoming or
remaining , members of Local 522, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , or any other labor organization.
EDWARD N. OLSEN D /B/A TERRACE LUMBER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
STATEN ISLAND HOME IMPROVEMENT CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 16 Court
Street , Brooklyn, New York, Telephone No. 596-5386.
W. B. Johnston Grain Company and Johnston Seed Company and
American Federation of Grain Millers, AFL-CIO. Case No. 16-
CA-2149. September 10, 1965
DECISION AND ORDER
On July 21, 1965, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that the Respondent
has engaged in and is engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision , the Respondent's exceptions and brief, and the
154 NLRB No. 101.