Little Mining, Inc.

LITTLE MINING Little Mining, Inc. and District 30, United Mine Workers of America. Cases 9-CA-22351 and 9-CA-22466 30 June 1986 DECISION AND ORDER BY CHAIRMAN DOT-SON AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union 3 September 1985, the General Counsel of the National Labor Relations Board issued a complaint 22 October 1985 against the Company, the Respondent, alleg- ing that it has violated Sections 8(a)(5) and (1) and 8(d) of the National Labor Relations Act. Thereaf- ter, upon a charge filed 7 October 1985, the Gener- al Counsel issued on 26 November 1985 a consoli- dated amended complaint, repeating the above alle- gations, and alleging in addition that the Company has violated Section 8(aX3) and (1 ) of the Act. Although properly served copies of the charges and complaints, the Company has failed to file a proper answer. On 9 December 1985 the General Counsel received a letter from the Company con- cerning the initial charge and complaint . The Com- pany's letter failed specifically to admit, deny, or explain each of the facts alleged in the initial com- plaint and in the consolidated amended complaint, and failed to contain a certificate of service show- ing that the other parties had been served in com- pliance with the Board's Rules. On 12 December 1985 the Regional Attorney sent the Respondent a telegram advising it that if its letter was meant to answer the complaint in Case 9-CA-22351, it was procedurally defective as it failed to specifically admit, deny, or explain each of the facts alleged in the complaint and failed to show that the other parties had been served in compliance with the Board's Rules. The telegram also stated that the Respondent had failed to file an answer to the con- solidated amended complaint on 26 November 1985 and that, unless a proper answer were made imme- diately, the Regional Office would be required to file a Motion for Summary Judgment with the Board. To this date, the Company has not filed an answer to the consolidated amended complaint or a proper answer to the initial complaint, nor has it requested an extension of time in which to file such answer. On 13 January 1986 the General Counsel filed a Motion for Summary Judgment . On 17 January 1986 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 Company filed no response. The allegations in the motion are therefore undisputed. 1139 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 10 days of service, "all the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, the undisputed alle- gations in the Motion for Summary Judgment dis- close that the General Counsel, by telegram dated 12 December 1985, notified the Company that unless a proper answer was received immediately, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the failure to file a timely answer which conforms with the Board's Rules, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company, a Kentucky corporation, engages in coal mining operations at its facility near Wheelwright, Kentucky, mining coal for delivery to Wheelwright Mining, Inc., a Kentucky corpora- tion with offices at Price, Kentucky, pursuant to the written terms of a contract between the Com- pany and Wheelwright. During the 12-month period from August 1984 to July 1985 and during the 12-month period prior to the complaint, both representative periods, the Company, in the course and conduct of its operations with Wheelwright, derived gross revenues in excess of $50,000, and also sold and shipped coal and coal by products valued in excess of $50,000 directly from points in Kentucky to points outside Kentucky. We find that the Company is an employer engaged in commerce within the meaning of Section 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 Since about 2 October 1984 the Union has been the designated exclusive collective-bargaining rep- resentative of the employees in the appropriate bar- gaining unit,' and since that time has been, by ' The unit is- Continued 280 NLRB No. 73 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD virtue of Section 9(a) of the Act, the exclusive col- lective-bargaining representative of the employees in the unit. The Respondent recognized the Union about 2 October 1984, and such recognition was embodied in a written agreement in which the Re- spondent agreed to be bound by a collective-bar- gaining agreement known as the "National Bitumi- nous Coal Wage Agreement of 1984" between the Union and the Bituminous Coal Operators Associa- tion, Inc., effective from 1 October 1984 to 1 Feb- ruary 1988. Since 4 March 1985, the Respondent has not paid to its employees the minimum daily wages re- quired by the collective-bargaining agreement. Since about 1 April 1985, the Respondent has not maintained or paid premiums for the "individual Employer's benefit plan" for health care for its em- ployees as required by the collective-bargaining agreement. The Respondent engaged in the above conduct without prior notice to the Union and without having afforded the Union an opportunity to bargain as the exclusive representatives of its employees in the unit. We find that by such con- duct the Respondent has refused to bargain collec- tively with the representatives of its employees in violation of Sections 8(a)(5) and (1) and 8(d) of the Act.2 Additionally, since about 15 August 1985 the Re- spondent has refused to recall from layoff employ- ee Mike Tackett because he joined, supported, or assisted the Union and engaged in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and in order to dis- courage employees from engaging in such activities or other concerted activities for the purpose of col- lective bargaining or other mutual aid of protec- tion. We find that, by refusing to recall Tackett for All employees engaged in the production of coal, including removal of overburden and coal waste, preparation, processing and cleaning of coal and transportation of coal , except by waterway or rail not owned by Respondent, repair and maintenance work normally per- formed at the mine site or at a center shop of Respondent and main- tenance of gob piles and mine roads , and work of the type customar- ily related to all of the above, excluding coal inspectors, weight bosses at mines where they are paid by the ton, watchmen clerks, engineering and technical forces of Respondent, working at or from a district or local mine office, excluding guards, management person- nel and supervisors as defined in the Act. We disagree with the dissent that the Board's disposition of this case amounts to the Board's enmeshing "itself in matters which in no way in- volve the national labor policy," and that such cases involve "nonstatu- tory issues of concern only to the particular parties ." The Board long has held that an employer's unilateral repudiation of essential terms and con- ditions of employment constitutes violations of the Act that go to the core of the collective-bargaining relationship . Moreover, we reject out of hand our dissenting colleague's suggestion that the Board's backlog is a compelling justification for dismissing such complaints when they are found to have merit. Although we share the concern for the backlog, we believe that measures other than the abdication of our jurisdiction over statutory violations are appropriate. these reasons, the Respondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By failing to pay its employees the minimum daily wages required by the collective-bargaining agreement, and by failing to maintain and pay pre- miums for the "individual Employer's benefit plan" as required by the collective-bargaining agreement, the Respondent has engaged in unfair labor prac- tices within the meaning of Sections 8(a)(5) and (1) and 8(d) and Section 2(6) and (7) of the Act. 2. By discriminatorily refusing to recall Mike Tackett since on or about 15 August 1985 because of his union and concerted activities, the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(3) 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 and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to make the em- ployees whole by restoring the "individual Em- ployer's benefit plan" retroactively from on or about 1 April 1985. We shall also order the Re- spondent to pay all premiums for the "individual Employer's benefit plan" and all minimum daily wages (as computed under Ogle Protection Services, 183 NLRB 682 (1970), plus interest), as required by the collective-bargaining agreement, which have not been paid and which would have been paid absent the Respondent's unlawful unilateral discon- tinuance of such payments.3 In addition, we shall order the Respondent to make employees whole by reimbursing them for any medical, dental, or other expenses ensuing from the Respondent's unlawful failure to make such required conditions. This shall include reim- bursing employees for any medical or dental bills 9 Interest on the minimum daily wages shall be paid as computed in Florida Steel Corp., 231 NLRB 651 (1977). Because the provisions of employee benefit fund agreements are van- able and complex, the Board does not provide for interest at a fixed rate on fund payments due as part of a "make-whole" remedy. We therefore leave to further proceedings the question of how much interest the Re- spondent must pay into the benefit fund in order to satisfy our "make- whole" remedy These additional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the fund at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful action, which might include the loss of return on investment of the por- tion of fiends withheld, additional administrative costs, etc., but not col- lateral losses. See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). LITTLE MINING they have paid directly to health care providers that the "individual Employer's benefit plan" would have covered, as well as any premiums they may have paid to third-party insurance companies to continue medical and dental coverage in the ab- sence of the Respondent's required contributions to the plan. Further, we shall order the Respondent to reimburse employees for any contributions they themselves may have made for the maintenance of the "individual Employer's benefit plan" after the Respondent unlawfully discontinued contributions to the plan. Ferro Mechanical Corp., 249 NLRB 669 (1980); Angelus Block Co., 250 NLRB 868 (1980). Interest on all such sums shall be paid in the manner prescribed in Florida Steel Corp., supra. We shall also order the Respondent to offer to recall Mike Tackett and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from 15 August 1985 to the date of a proper offer of recall, less any net interim earn- ings as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977).4 ORDER The National Labor Relations Board orders that the Respondent, Little Mining, Inc., Wheelwright, Kentucky, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Unilaterally ceasing to pay the minimum daily wages required by the collective-bargaining agreement. (b) Unilaterally ceasing to maintain and pay pre- miums for the "individual Employer's benefit plan" as required by the collective-bargaining agreement. (c) Refusing to recall or otherwise discriminating against employees because of their union or con- certed activities. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make its employees whole by restoring the "individual Employer's benefit plan" retroactively from on or about 1 April 1985, and by paying all premiums for the "individual Employer's benefit plan" and all minimum daily wages, as required by 4 The General Counsel has requested that the Order include a vmta- torial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under Federal Rules of Civil Procedure under the supervision of the United States Court of Appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request 1141 the collective-bargaining agreement, which have not been paid and which would have been paid absent the Respondent's unlawful unilateral discon- tinuance of such payments; maintain the "individ- ual Employer's benefit plan" and continue such payments until such time as the Respondent negoti- ates in good faith to a new agreement or to im- passe; and reimburse its employees for any medical, dental, or any other expenses ensuing from the Re- spondent's unlawful failure to make such payments. This shall include reimbursing employees for any contributions they themselves may have made for the maintenance of the "individual Employer's ben- efit plan" after the Respondent unlawfully discon- tinued contributions to the plan; for any premiums they may have paid to third-party insurance com- panies to continue medical and dental coverage in the absence of Respondent's required contributions to the plan; and for any medical or dental bills they have paid directly to health care providers that the plan would have covered. All payments to employ- ees shall be made with interest. (b) Offer Mike Tackett immediate recall to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment 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) Post at its facility in Wheelwright, Kentucky, copies of the attached notice marked "Appendix."a Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 5 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 Nation- al 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." 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, concurring in part and dis- senting in part. Contrary to my colleagues, and for the reasons fully set forth in my dissenting opinion in Rapid Fur Dressing, 278 NLRB 905 (1986), I would deny those portions of the General Counsel's Motion for Sumary Judgment which concern the Respondent's unilateral changes in contractual wages and bene- fits. In all other respects I concur with my col- leagues' grant of the General Counsel's motion. The Respondent has unilaterally ceased paying contractually required wages and benefit premiums on behalf of its employees , and has also unilaterally failed to maintain the "individual Employer's bene- fit plan" required by the collective-bargaining agreement. As discussed fully in my dissenting opinion in Rapid Fur, a breach of contract is not necessarily an unfair labor practices ; nor is the Na- tional Labor Relations Board a collection agency for parties hoping to recoup financial arrearages in- curred by employees who have failed to comply with particular contractual terms. Rather, the Board should-indeed, it must-intervene only when, during the term of a contract, a party en- gages in conduct reflecting a substantial repudi- ation of its contractual and bargaining obligation. When, on the other hand, a party seeks to involve the Board in a dispute arising solely over contract compliance, the Board should not-indeed, it must not-become involved. This Board, as my colleagues are aware, has a high backlog of undecided cases. The Board exists for the purpose of expounding the national labor policy in adjudicated cases which determine "the Board's reasonable interpretations and applications of the Act." NLRB v. Action Automotive, 105 S.Ct. 984 (Feb. 19, 1985). So long as the Board continues to enmesh itself in matters which in no way in- volve the national labor policy, it will continue to waste its time and resources and delay consider- ation of those cases which make policy and ex- pound law. There exists an infinitude of disputes which involve nonstatutory issues of concern only to particular parties. The charging party in such a case must be left to seek enforcement of the con- tract and recoupment of any demages through ap- propriate informal efforts or through arbitral or ju- dicial proceedings. The above aspects of the instant case concern a dispute arising solely over contract compliance in which the Board should not become involved. In my view, the complaint allegations standing alone to do not establish that the Respondent has en- gaged in conduct which amounts to a substantial repudiation of its contractual and bargaining obli- gation. I therefore find that the Respondent's con- duct in these particulars constitutes nothing more than a contract violation and the Charging Party's unfair labor practice charge concerning them con- stitutes nothing more than an attempt to have the Board enforce the contract and collect any delin- quent wages and benefit fund payments. For the reasons fully discussed in my dissenting opinion in Rapid Fur, I believe the Board errs in permitting itself to become enmeshed in such disputes. Ac- cordingly, I would deny the aspects of the General Counsel's Motion for Summary Judgment which concern the Respondent's unilateral changes in contractual wages and benefits. 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT unilaterally cease to pay the mini- mum daily wages required by the collective-bar- gaining agreement. WE WILL NOT unilaterally cease to maintain and pay premiums for the "individual Employer's bene- fit plan" as required by the collective-bargaiing agreement. WE WILL NOT refuse to recall or otherwise dis- criminate against you because of your union or concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make our employees whole by restor- ing the "individual Employer's benefit plan" retro- actively from 1 April 1985, and by paying all pre- miums for the "individual Employer's benefit plan" and all minimum daily wages, as required by the LITTLE MINING 1143 collective-bargaining agreement, which have not been paid and which would have been paid absent our unlawful unilateral discontinuance of such pay- ": 1 d h d d E ments; an ivl WE wiLL malntam t e m ua m- ployer's benefit plan" and continue such payments until such time as we negotiate in good faith to a new agreement or to impasse; and WE WILL reim- burse our employees for any medical, dental, or any other expenses ensuing from our unlawful fail- ure to make such payments. This shall include re- imbursing employees for any contributions they themselves may have made for the maintenance of the "individual Employer's benefit plan" after we unlawfully discontinued contributions to the plan; for any premiums they may have paid to third- party insurance companies to continue medical and dental coverage in the absence of our required con- tributions to the plan; and for any medical or dental bills they have paid directly to health care providers that the plan would have covered. WE WILL pay to our employees appropriate in- terest on such moneys. WE WILL offer Mike Tackett immediate recall to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits suffered as a result of the discrimination practiced against him, less any net interim earnings, plus interest. LITTLE MINING, INC.