Great Northwest Builders, LLC

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 969 (N.L.R.B. 2005)

GREAT NORTHWEST BUILDERS, LLC
344 NLRB No. 120
969
Great Northwest Builders, LLC and International
Association of Bridge, Structural, Ornamental
and Reinforcing Ironworkers, Local 29, AFL–
CIO. Case 36–CA–8799
June 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement.
Upon a charge filed by International Association of
Bridge, Structural, Ornamental and Reinforcing Iron
Workers, Local 29, AFL–CIO, on December 29, 2000,
the General Counsel issued a complaint on March 27,
2001,1 against Great Northwest Builders, LLC. The
complaint alleged that the Respondent violated Section
8(a)(1) and (3) of the Act by refusing to hire employee
applicant Jeffrey Carlson and by laying off and refusing
to recall employee Robert Clerihew. On April 12, 2001,
the Respondent filed an answer denying those allega-
tions.
On July 10, 2001, counsel for the General Counsel, the
Charging Party, and the Respondent entered into an in-
formal settlement agreement that was approved by the
Regional Director for Region 19. The settlement agree-
ment provided, inter alia, that the Respondent would
make Carlson and Clerihew whole by paying Carlson
$6384 and Clerihew $6357.58 in backpay. The Respon-
dent was to pay each of them a partial payment of $2548
on the date of the agreement, and the remainder in a se-
ries of monthly installment payments. The settlement
also provided that:
In consideration of the Board granting a time-payment
schedule, Respondent further agrees that, in the event
of any non-compliance by failure to make required
payments on the dates specified, or to cure any such
failure within ten days of the specified payment date,
the total amount of backpay plus interest_/ shall be-
come immediately due and payable. Time is of the es-
sence. Respondent agrees that after fourteen days no-
tice from the Regional Director of the National Labor
Relations Board, on Motion for Summary Judgment by
the General Counsel, Respondent’s Answer to the in-
stant Complaint shall be considered withdrawn and no
new Answer may be filed. Thereupon, the Board may
issue an order requiring Respondent to show cause why
said Motion of the General Counsel should not be
granted. The Board may, without necessity of trial,
find all allegations of the Complaint to be true, and

1 All subsequent dates are 2001 unless otherwise noted.
make findings of fact and conclusions of law consistent
those allegations adverse to Respondent on all issues
raised by the pleadings. The Board may then issue an
Order providing full remedy as to the conduct alleged
in the Complaint, with total backpay fixed in the
amount of $7947 for Robert Clerihew and $7980 for
Jeff Carlson, plus interest accruing since the day of this
settlement. The parties further agree that a Board Or-
der and U.S. Court of Appeals judgment may be en-
tered thereon ex parte.
__________________________
_/ Interest rate shall be the Board’s interest rate as amended quarterly.
Shortly thereafter, the Respondent violated the terms
of the agreement. Although the Respondent made the
initial partial payment to both Carlson and Clerihew, the
checks representing the first of the installment payments,
in August 2001, were returned to Carlson’s and Cleri-
hew’s banks because of insufficient funds. The Respon-
dent also failed to inform the Region where it had posted
the required notice. The Region’s subsequent attempts to
verify the posting revealed that the Respondent was no
longer operating out of the location stated in the com-
plaint, and the Region was unable to locate the Respon-
dent.
On September 27, 2001, the Region sent copies of a
letter to the Respondent to three addresses: the address
stated on the Charge, the Respondent’s address as of the
date of the settlement agreement, and the address of the
Respondent’s owner and registered agent, Geno Solias.
The letter informed the Respondent of its failure to com-
ply with the terms of the settlement agreement, in specif-
ics, and informed it that the Region would file a Motion
for Summary Judgment if the Respondent did not imme-
diately contact it. On October 9, 2001, the Region sent
the same letter to two additional addresses resulting from
its investigation. The letter sent to the Respondent’s ad-
dress as of the date of the settlement agreement was re-
turned on October 15 for insufficient address, and the
letter sent to the registered agent was returned October
29 marked as undeliverable. The other three letters have
not been returned and are presumed to have been deliv-
ered. The Respondent has not responded to the Region’s
letter.
On November 14, 2001, the General Counsel filed
with the Board a Motion for Summary Judgment. The
General Counsel requests that the Respondent’s answer
to the complaint be considered withdrawn pursuant to the
terms of the settlement agreement. The General Counsel
also requests that the Board issue an order “providing a
full remedy as to the conduct alleged in the complaint,
including, but not limited to, preferential hiring with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD970
backpay fixed in the amount of $7977 for Robert Cleri-
hew and $7980 for Jeffrey Carlson, plus interest accruing
since the date of the approval of the settlement agree-
ment.”
On December 12, 2001, 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.
Ruling on Motion for Summary Judgment
According to the uncontroverted allegations in the Mo-
tion for Summary Judgment, the Respondent initially
filed an answer and later entered into a settlement agree-
ment providing that, if the Respondent failed to make
any installment payment required by the agreement and
failed to correct any such noncompliance within 10 days
of the payment’s due date, the answer would be consid-
ered withdrawn. As set forth above, the Respondent has
failed to comply with the terms of the settlement agree-
ment. Consequently, pursuant to the provision of the
settlement agreement described above, we find that the
Respondent’s answer has been withdrawn and that all the
allegations in the complaint are true.
Accordingly, we grant the General Counsel’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 Washington
corporation, with an office and place of business in Van-
couver, Washington, has been engaged as a contractor in
the construction industry doing commercial construction.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations, purchased and caused to be transferred and
delivered to its facilities within the State of Washington
goods and materials valued in excess of $50,000 directly
from sources outside the state or from suppliers within
the state, which suppliers obtained goods and materials
directly from outside the state. We find that the Respon-
dent 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, Gene Solias, John Frech, and
Scott Little have been supervisors of the Respondent
within the meaning of Section 2 (11) of the Act and
agents of the Respondent within the meaning of Section
2(13) of the Act.
(a) On about June 30, 2000, the Respondent, acting
through John Frech, at Respondent’s Safeway jobsite in
Vancouver, Washington, informed an applicant for
employment that the Respondent would not hire him
because of his activities on behalf of the Union.
(b) On about June 29, 2000, the Respondent refused to
hire employee-applicant Jeffrey Carlson.
(c) On about June 30, 2000, the Respondent laid off,
and since said time has refused to recall, its employee
Robert Clerihew.
The Respondent engaged in the conduct described in
(b) and (c) above because Carlson and Clerihew assisted
the Union and engaged in concerted activities, and in
order to discourage other employees from engaging in
these activities.
CONCLUSIONS OF LAW
1. By informing an applicant that the Respondent
would not hire him because of his activities on behalf of
the Union, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
2. By refusing to hire employee-applicant Jeffrey Carl-
son and by laying off and refusing to recall employee
Robert Clerihew, the Respondent has been discriminat-
ing in regard to the hire, tenure, or terms or conditions of
employment of its employees, thereby discouraging
membership in a labor organization. The Respondent
has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3)
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 the Respondent
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent violated Section
8(a)(1) and (3) by refusing to hire employee-applicant
Jeffrey Carlson and by laying off and refusing to recall
Robert Clerihew, we shall order the Respondent to make
them whole for loss of earnings and other benefits suf-
fered as a result of the unlawful discrimination against
them by paying Carlson $7980 and Clerihew $7947, less
the amounts already paid to them, with interest accruing
from the date of the settlement agreement as set forth in
the noncompliance portion of the settlement agreement.
We shall also provide for the remedies typically im-
posed for the violations found. Contrary to our concur-
ring colleague, we do not find the settlement agreement
to be ambiguous. The settlement agreement provided
that, in the event of noncompliance with the settlement
GREAT NORTHWEST BUILDERS, LLC 971
agreement, the Board was empowered to issue an Order
“providing full remedy as to the conduct alleged in the
Complaint, with total backpay fixed . . .” (emphasis
added). The noncompliance clause merely fixes the
backpay at specific dollar amounts plus interest. The
clause does not specify that backpay is the exclusive
remedy, nor does the settlement agreement by its terms
rule out our imposition of other traditional remedies. See
L.J. Logistics, Inc., 339 NLRB 729 (2003). We therefore
deem it appropriate to include in the order the customary
provisions of instatement, reinstatement, expungement,
and notice posting to fully remedy the conduct alleged in
the complaint.2
Therefore, we shall also order the Respondent to offer
Jeffrey Carlson instatement to the job to which he ap-
plied and to offer Robert Clerihew full reinstatement to
his former job or, if those jobs no longer exist, to sub-
stantially equivalent positions without prejudice to their
seniority or any other rights and privileges previously
enjoyed.
The Respondent shall also be ordered to expunge from
its files any reference to the unlawful refusal to hire Jef-
frey Carlson or the unlawful layoff of and refusal to re-
call Robert Clerihew, and to notify them in writing that
this has been done, and that the unlawful conduct will
not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Great Northwest Builder’s LLC, Vancou-
ver, Washington, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Informing employee applicants that it will not hire
union members.
(b) Failing to hire an applicant because he assisted the
Union and engaged in protected concerted activity.
(c) Laying off and refusing to recall from layoff an
employee because he assisted the Union and engaged in
protected concerted activity.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

2 Member Schaumber agrees with Chairman Battista that it would be
better practice for noncompliance clauses to state clearly and with
specificity the relief that will be granted if there is noncompliance. He
also agrees that the relief sought by the General Counsel is clearly
appropriate in light of Respondent’s failure to answer the General
Counsel’s motion or the Notice to Show Cause. He, however, does not
find the language negotiated by the parties ambiguous.
(a) Remit to Region 19 payments of $5432 and $5399
to be disbursed to Carlson and Clerihew, respectively, in
accordance with the July 10, 2001 settlement agreement,
with interest.
(b) Within 14 days from the date of this Order, offer
Jeffrey Carlson instatement to the position for which he
applied, and offer Robert Clerihew full reinstatement to
his former job, or if these jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the Respondent’s
unlawful refusal to hire Jeffrey Carlson or to the unlaw-
ful layoff of and refusal to recall Robert Clerihew, and
within 3 days thereafter notify Carlson and Clerihew in
writing that this has been done and that evidence of the
unlawful conduct will not be used as a basis for future
personnel action against them.
(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, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary 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 Vancouver, Washington facility, copies of the at-
tached notice marked Appendix.3 Copies of the notice
on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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 altered, defaced, or covered by any other
material. In the event that, during pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since June 29, 2000.

3 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD972
(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 Regional
Director attesting to the steps that the Respondent has
taken to comply.
CHAIRMAN BATTISTA, concurring.
I concur in the result reached by colleagues, but I do
not fully agree with their rationale.
The noncompliance clause of the settlement is not
clear as to what, if any, remedy beyond specified back-
pay is to be granted if there is noncompliance with the
settlement. The phrase “full remedy” does not answer the
question. In my view, the General Counsel should spe-
cifically spell out all of the relief that will be granted if
there is noncompliance, or, at the very least, he should
make it clear that backpay is not the only relief to be
granted. Thus, if this case turned entirely on the settle-
ment, the ambiguity would cause me to limit the remedy
to backpay.
However, the General Counsel, after noncompliance,
filed a Motion for Summary Judgment. That motion
sought a remedy that “include[ed], but was not limited
to, preferential hire and backpay.” The Respondent did
not answer the motion or the Notice to Show Cause.
In these circumstances, I would grant the relief sought
by the General Counsel.
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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
We WILL NOT inform employee-applicants that we will
not hire them because of their activities on behalf of a
union.
WE WILL NOT refuse to hire employee-applicants be-
cause they engaged in protected concerted activity and
assisted a union.
WE WILL NOT lay off and refuse to recall employees
because they engaged in protected concerted activity and
assisted a union.
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, within 14 days from the date of the Board’s
Order, offer Jeffrey Carlson instatement to the job for
which he applied, and offer Robert Clerihew full rein-
statement to his former job or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges.
WE WILL make Jeffrey Carlson and Robert Clerihew
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, with inter-
est, in the manner set forth in the remedy section of this
decision.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
fusal to hire Jeffrey Carlson or unlawful layoff of and
refusal to hire Robert Clerihew, and within 3 days there-
after notify Clerihew and Carlson in writing that this has
been done and that evidence of the unlawful layoff and
the refusal to hire will not be used as a basis for future
personnel action against them.
GREAT NORTHWEST BUILDERS, LLC