Waggner Lumber Co.

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 34 (N.L.R.B. 2000)

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