Coal Rush Mining

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 Coal Rush Mining, Inc. and United Mine Workers of America, District 17, Local 7604, AFL–CIO. Case 9–CA–40385 January 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks a default judgment in this case on the ground that the Respondent has withdrawn its answer to the complaint. Upon a charge filed by the Un- ion on July 23, 2003, the General Counsel issued the complaint on September 29, 2003, against Coal Rush Mining, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the Act. On October 8, 2003, the Respondent filed an answer to the complaint. How- ever, by letter dated November 26, 2003, the Respondent withdrew its answer. On December 5, 2003, the General Counsel filed a Motion for Default Judgment with the Board and a memorandum in support. On December 10, 2003, 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 re- sponse. The allegations in the motion are therefore un- disputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides 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 stated that unless an answer was filed within 14 days of service, all the allegations in the complaint would be considered admitted. Although the Respondent filed an answer to the complaint, it subsequently withdrew its answer. The withdrawal of an answer has the same effect as a failure to file an answer, i.e., the allegations in the complaint must be considered to be true.1 Accordingly, we grant the General Counsel’s Motion for Default 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 operation of a strip mine near 1 See Maislin Transport, 274 NLRB 529 (1985). Oceana, West Virginia, as contractor for Pioneer Coal, a subsidiary of Riverton Mining Company. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, performed mining services valued in excess of $50,000 for Pioneer Coal, which, in turn, dur- ing the same period, sold and shipped coal valued in ex- cess of $50,000 from its West Virginia facilities directly to customers located 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 United Mine Workers of Amer- ica, District 17, Local 7604, AFL–CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Gary Wayne Johnson has held the position of the Respondent’s president and has been a supervisor within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. At all material times, the employees of the Respondent described in article I of the National Bituminous Coal Wage Agreement of 1993 (the unit) have constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Since about June 18, 1998, the Union has been the des- ignated exclusive collective-bargaining representative of the unit, and since then the Respondent has recognized the Union as that representative. This recognition has been embodied in a Memorandum of Understanding dated December 30, 2002. Since about June 18, 1998, based on Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the unit. Since about June 18, 1998, by virtue of the conduct described above, the Respondent and the Union have been parties to the National Bituminous Coal Wage Agreement (Agreement) of 1993. Since about March 19, 2003, the Respondent has failed to continue in full force and effect all the terms and con- ditions of the Agreement by failing to provide unit em- ployees with the required medical insurance benefits and to pay the insurance claims of the unit employees pursu- ant to the provisions of article XX of the Agreement, as incorporated by the parties’ December 30, 2002 Memo- randum of Understanding. On March 19, 2003, the Employer laid off its employ- ees without notice to or bargaining with the Union as required by article 17, section C of the Agreement. The Respondent engaged in the conduct described above without the Union’s consent. The terms and con- 341 NLRB No. 9 COAL RUSH MINING, INC. 33 ditions of employment set forth above are mandatory subjects for the purpose of collective bargaining. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees within the meaning of Section 8(d) of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.2 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 violated Section 8(a)(5) and (1) of the Act by failing to provide medical insurance benefits to unit employees pursuant to article XX of the collective-bargaining agreement, we shall order the Re- spondent to restore the unit employees’ medical insur- ance coverage and reimburse the employees for any ex- penses ensuing from the Respondent’s failure to make required payments and to pay the insurance claims of employees, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts to 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 Retarded, 283 NLRB 1173 (1987). In addition, having found that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off unit employees, we shall order the Respondent to offer the laid-off employees full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the Respondent’s unlawful conduct. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with inter- est as prescribed in New Horizons for the Retarded, su- pra. The Respondent shall also be required to remove from its files any and all references to the unlawful lay- offs, and to notify the employees in writing that this has 2 In its letter to the Region withdrawing its answer, the Respondent stated that it failed to provide the contractual medical benefits “because it was financially unable to make the required payments.” It is well settled that an employer’s inability to pay is not a defense to an 8(a)(5) allegation. See, e.g., Nick Robilotto, Inc., 292 NLRB 1279 (1989). been done and that the layoffs will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Coal Rush Mining, Inc., Oceana, West Vir- ginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with United Mine Workers of America, Dis- trict 17, Local 7604, AFL–CIO, as the collective- bargaining representative of the Respondent’s employees described in article I of the National Bituminous Coal Wage Agreement of 1993, by failing to provide unit em- ployees with medical insurance benefits and to pay the employees’ insurance claims pursuant to article XX of the agreement and by laying off its employees without notice to or bargaining with the Union as required by article 17, section C of the agreement. (b) In any like or related manner interfering with, re- straining, 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’ medical insurance benefits and reimburse the employees for any expenses ensuing from the Respondent’s unilateral failure to make contractually required medical insurance payments and to pay the employees’ insurance claims since about March 19, 2003, with interest, as set forth in the remedy section of this decision. (b) Within 14 days from the date of this Order, offer the employees laid off on about March 19, 2003, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority and any other rights or privileges previously enjoyed. (c) Make whole the laid-off unit employees for any loss of earnings and other benefits suffered as a result of their unlawful layoffs, with interest, in the manner set forth in the remedy section of this decision. (d) Within 14 days from the date of this Order, remove from its files any and all references to the unlawful lay- offs and, within 3 days thereafter, notify the laid-off em- ployees in writing that this has been done and that the layoffs will not be used against them in any way. (e) 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 elec- tronic copy of such records if stored in electronic form, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in Oceana, West Virginia, copies of the at- tached notice marked “Appendix.”3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 9, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent 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 al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 19, 2003. (g) 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. 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 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.” Choose representatives to bargain with us on your behalf Act together with other employees for your benefit or protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail and refuse to bargain collectively and in good faith with United Mine Workers of America, District 17, Local 7604, AFL–CIO, as the collective- bargaining representative of our employees described in article I of the National Bituminous Coal Wage Agree- ment of 1993, by failing to provide unit employees with medical insurance benefits and to pay the employees’ insurance claims pursuant to article XX of the agreement and by laying off our employees without notice to or bargaining with the Union as required by article 17, sec- tion C of the agreement. 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 unit employees’ medical insurance benefits and reimburse the employees for any expenses ensuing from our unilateral failure to make contractually required medical insurance payments and to pay the em- ployees’ insurance claims since about March 19, 2003, with interest. WE WILL, within 14 days from the date of the Board’s Order, offer the employees laid off on about March 19, 2003, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and any other rights or privileges previously enjoyed. WE WILL make whole the laid-off unit employees for any loss of earnings and other benefits suffered as a re- sult of their unlawful layoffs, with interest, in the manner set forth in the remedy section of this decision. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any and all references to the unlawful layoffs and, within 3 days thereafter, notify the laid-off employees in writing that this has been done and that the layoffs will not be used against them in any way. COAL RUSH MINING, INC.