Dandy Mining, Inc.

1 325 NLRB No. 185 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Dandy Mining, Inc. and Local Union 5921, District 17, United Mine Workers of America. Case 9– CA–35648 June 30, 1998 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME Upon a charge filed by the Union on January 15, 1998, the Acting General Counsel of the National Labor Relations Board issued a complaint on April 30, 1998, against Dandy Mining, Inc., the Respondent, al- leging 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 Re- spondent failed to file an answer. On June 8, 1998, the Acting General Counsel filed a Motion for Summary Judgment with the Board. On June 10, 1998, 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 Re- spondent filed no response. The allegations in the mo- tion 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, un- less 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 al- legations in the Motion for Summary Judgment dis- close that the Region, by letter dated May 20, 1998, notified the Respondent that unless an answer were re- ceived by June 1, 1998, a Motion for Summary Judg- ment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the Acting 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 corporation, has been engaged in the mining of coal in Logan County, West Virginia, near the town of Starit, West Virginia. During the 12-month period preceding issu- ance of the complaint, the Respondent, in conducting its business operations, sold and shipped from its Logan County, West Virginia facility goods valued in excess of $50,000 directly to enterprises located within the State of West Virginia, each of which, in turn, sold and shipped from their respective West Virginia facili- ties goods valued in excess of $50,000 directly to points outside the State of West Virginia. 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 employees of the Respondent described in arti- cle IA of the National Bituminous Coal Wage Agree- ment of 1993 constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. Since about January 20, 1997, 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 a collective-bargaining agreement (National Bituminous Coal Wage Agreement of 1993) between certain coal operators and the United Mine Workers of America on behalf of its districts and locals including the Union, effective from January 20, 1997, through August 1, 1998, to which the Respondent has agreed to be bound. Since about January 20, 1997, based on Section 9(a) of the Act, the Union has been the exclusive col- lective-bargaining representative of the unit. From about October 1, 1997, to April 1, 1998, the Respondent has failed to continue in effect all of the terms and conditions of the National Bituminous Coal Wage Agreement of 1993 by failing to provide appro- priate medical insurance and to pay the medical ex- penses of the unit employees. These terms and condi- tions of employment are mandatory subjects for the purposes of collective bargaining. The Respondent en- gaged in this conduct without the Union’s consent. CONCLUSION OF LAW By the acts and conduct described above, the Re- spondent has been failing and refusing to bargain col- lectively and in good faith with the exclusive collec- tive-bargaining representative of its employees within the meaning of Section 8(d) of the Act, and has there- by 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 certain unfair labor practices, we shall order it to cease 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 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 National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifi- cally, having found that the Respondent has violated Section 8(a)(5) and (1) by failing, from October 1, 1997, to April 1, 1998, to maintain contractually re- quired health insurance for its unit employees and to pay their medical expenses, we shall order the Re- spondent to restore the employees’ health insurance coverage and any other contractually required medical coverage and make the employees whole by reimburs- ing them for any expenses ensuing from the Respond- ent’s unlawful conduct, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Dandy Mining, Inc., Logan County, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to continue in effect all of the terms and conditions of the National Bituminous Coal Wage Agreement of 1993 by failing to provide appropriate medical insurance and to pay the medical expenses of the unit employees. (b) In any like or related manner interfering with, restraining, 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) Restore the health insurance coverage and any other contractually required medical coverage for the following unit employees: The employees of the Respondent described in ar- ticle IA of the National Bituminous Coal Wage Agreement of 1993. (b) Make the unit employees whole in the manner set forth in the remedy section 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 pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its facility in Logan County, West Virginia, copies of the attached notice marked ‘‘Appendix.’’1 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent 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 no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since October 1, 1997. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. June 30, 1998 llllllllllllllllll Wilma B. Liebman, Member llllllllllllllllll Peter J. Hurtgen, Member llllllllllllllllll J. Robert Brame III, 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail to continue in effect all of the terms and conditions of the National Bituminous Coal Wage Agreement of 1993 by failing to provide appro- priate medical insurance and to pay the medical ex- penses of our unit employees. 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 restore the health insurance coverage and any other contractually required medical coverage for 3 DANDY MINING the following unit employees’ and WE WILL make them whole, with interest. All our employees described in article IA of the National Bituminous Coal Wage Agreement of 1993. DANDY MINING, INC.