Raleigh Boone Trucking

1 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. Raleigh Boone Trucking, Inc. and United Mine Workers of America, District 17, AFL–CIO. Case 9–CA–34055 April 30, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge and amended charge filed by the Union on July 26 and November 22, 1996, the General Counsel of the National Labor Relations Board issued a complaint on December 5, 1996, against Raleigh Boone Trucking, 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, amended charge, and complaint, the Re­ spondent failed to file an answer. On April 7, 1997, the General Counsel filed a Mo­ tion for Summary Judgment with the Board. On April 9, 1997, the Board issued an order transferring the pro­ ceeding 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 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 March 13, 1997, notified the Respondent and its bankruptcy attorney that unless an answer were received by March 19, 1997, a Motion for Summary Judgment would be filed. Although the Respondent is in bankruptcy,1 it is well established that the institution of bankruptcy pro­ ceedings does not deprive the Board of jurisdiction or authority to entertain and process an unfair labor prac­ tice case to its final disposition. Phoenix Co., 274 NLRB 995 (1985). Board proceedings fall within the exception to the automatic stay provisions for proceed- 1 The General Counsel’s motion indicates that the Respondent filed Chapter 11 Bankruptcy on July 22, 1996, and converted to Chapter 7 Bankruptcy on December 13, 1996. ings by a governmental unit to enforce its police or regulatory powers. See id., and cases cited therein. Accordingly, in the absence of good cause being shown for the failure to file a timely answer, 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 corporation, has been engaged in hauling coal in and around Whitesville, West Virginia. During the 12-month pe­ riod preceding issuance of the complaint, the Respond­ ent, in conducting its business operations, derived gross revenues in excess of $50,000 for services pro­ vided to Long Branch Energy, a nonretail enterprise located within the State of West Virginia, which, in turn, during the same time period, in conducting its coal mining operations, purchased and received goods valued in excess of $50,000 at its West Virginia facili­ ties directly from points outside the State of West Vir­ ginia. We find that the Respondent is an employer en- gaged 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 described in article 1A of the Na­ tional Bituminous Coal Wage Agreement of 1993 con­ stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Since about April 1, 1994, 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 rep­ resentative by the Respondent. This recognition has been embodied in successive collective-bargaining agreements between the Respondent and the United Mine Workers of America on behalf of its locals and districts, including the Union, the most recent of which is effective from May 24, 1996, to August 1, 1998. At all times since April 1, 1994, based on Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the unit. About May 1996 the Respondent ceased providing its employees with health insurance and ceased paying vacation and sick day benefits to its employees. These subjects relate to wages, hours, and other terms and conditions of employment of the unit and are manda­ tory subjects for the purposes of collective bargaining. The Respondent engaged in this conduct without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with re­ spect to this conduct and the effects of this conduct. 323 NLRB No. 102 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By the acts and conduct described above, the Re­ spondent has been failing and refusing to bargain col­ lectively with the exclusive collective-bargaining rep­ resentative of its employees and has thereby engaged in unfair labor practices affecting commerce 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 certain unfair labor practices, we shall order it to cease 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 unilaterally ceasing to pro- vide health insurance for its unit employees, we shall order the Respondent to restore the employees’ health insurance coverage and make the employees whole by reimbursing them for any expenses ensuing from the Respondent’s unlawful conduct, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Furthermore, having found that the Respondent vio­ lated Section 8(a)(5) and (1) by unilaterally ceasing to pay vacation and sick day benefits to the unit employ­ ees, we shall order the Respondent to make the unit employees whole for any loss of earnings attributable to its unlawful conduct. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Re­ tarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Raleigh Boone Trucking, Inc., Whitesville, West Virginia, its officers, agents, succes­ sors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to bargain with United Mine Workers of America, District 17, AFL–CIO as the ex­ clusive representative of the following employees by unilaterally failing to provide the unit employees with health insurance or failing to pay them vacation and sick day benefits: The employees described in article 1A of the Na­ tional Bituminous Coal Wage Agreement of 1993. (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 unit employees’ health insurance coverage and make the employees whole for any ex­ penses or loss of earnings ensuing from the Respond­ ent’s unlawful failure to provide the unit employees with health insurance coverage and pay them vacation and sick day benefits, since about May 1996, as set forth in the remedy section of this decision. (b) 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. (c) Within 14 days after service by the Region, post at its facility in Whitesville, West Virginia, copies of the attached notice marked ‘‘Appendix.’’2 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 July 26, 1996. (d) 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. April 30, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., 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 ‘‘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.’’ RALEIGH BOONE TRUCKING 3 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 or refuse to bargain with United Mine Workers of America, District 17, AFL–CIO, as the exclusive representative of the following unit em­ ployees by unilaterally ceasing to provide the unit em­ ployees with health insurance or failing to pay them vacation and sick day benefits: The employees described in article 1A of the Na­ tional Bituminous Coal Wage Agreement of 1993. 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 our unit employees’ health insur­ ance coverage and make the employees whole by reim­ bursing them for any expenses ensuing from our un­ lawful cessation of coverage and for any loss of earn­ ings attributable to our unlawful failure to pay them vacation and sick day benefits, since about May 1996, as set forth in a decision of the National Labor Rela­ tions Board. RALEIGH BOONE TRUCKING, INC.