Indian Mining, Successor To Indian Mining Corp.

114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jerry Blanken and Others Unknown at Present, d/b/a Indian Mining, Successor to Indian Mining Corporation and United Mine Workers of America, District 28. Case 5-CA-17729 15 December 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT Upon a charge filed by the Union 6 January 1986, and an amended charge filed by the Union 28 February 1986, the Regional Director for Region 5 of the National Labor Relations Board issued a complaint and notice of hearing 21 March 1986 and an amended complaint and notice of hearing 4 De- cember 1986 against the Company; the Respondent, alleging that it has violated Section 8(a)(1), (3), and (5) of the Act. Although properly served copies of the charge and complaint, the Respondent has failed to file an answer. On 20 August 1987 the General Counsel filed a Motion for Summary Judgment. On 21 August 1987 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. 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 14 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." The amended complaint states that unless an answer is filed within 14 days of service, "all the allegations in the amended com- plaint shall be deemed to be admitted to be true and shall be found so by the Board." Further, the undisputed allegations in the Motion for Summary Judgment disclose that a Board agent, by letter dated 7 April 1986 sent by certified United States mail, return receipt requested, notified the Compa- ny that unless an answer to the complaint was filed by 14 April 1986, a Motion for Summary Judgment would be filed. On 14 April 1986 the complaint and notice of hearing described above, served on the Respondent by certified mail, was returned by the U.S. Postal Service. On 24 April 1986 counsel for the General Counsel's letter to the Respondent of 7 April 1986 described above was returned. On 5 January 1987 the amended complaint and notice of hearing described above, served on the Re- spondent by certified mail, was returned by the U.S. Postal Service. By letter dated 3 February 1987, sent by certified U.S. mail, return receipt re- quested, the Respondent was advised by a Board agent that, absent the filing of an answer by 13 February 1987, a Motion for Summary Judgment would be filed. On 24 February 1987 counsel for the General Counsel's letter to the Respondent of 3 February 1987 described above was returned. On 22 April 1987 a letter and copies of the instant charge, amended charge, complaint and notice of hearing, and amended complaint and notice of hearing were sent by certified U.S. mail, return re- ceipt requested to H. C. McDaries, Ken McDaries, and Jerry Blanken, individuals named in the amended complaint as owner, operator, or agents of the Respondent. On 28 April 1987 and 18 May 1987 counsel for the General Counsel's letter and enclosures of 22 April 1987 to H. C. McDaries and Ken McDaries, respectively, were returned by the U.S. Postal Service. Wayne Blanken signed for the 22 April 1987 letter that was sent to Jerry Blanken. The Respondent has failed to file an answer to either the complaint or the amended complaint in the instant proceeding.' 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 fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a Virginia corporation, with an office and place of business in Big Stone Gap, Vir- ginia, is engaged in the operation of a coal mine lo- cated in Wise County, Virginia, where it annually sells and ships from its Wise County facility prod- ucts, goods, and materials valued in excess of $50,000 directly to Robray Corporation d/b/a Cobra Energy, referred to as Cobra Energy, an en- terprise within the State of Virginia engaged in the business of subleasing coal lands for coal produc- tion and the sale of coal. During the preceding 12 months, a representative period, Cobra Energy, in the course and conduct of its operations described above, sold and shipped from its Whitefield, Siding, and Pardee, Virginia facilities products, ' The Respondent's refusal or failure to claim certified mail should not serve to defeat the purposes of the Act Michigan Expediting Service, 282 NLRB 210 (1986) 287 NLRB No. 7 INDIAN MINING goods, and services valued in excess of $50,000 di- rectly to points located outside the State of Virgin- ia. We find that Cobra Energy and the Respondent are employers 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 mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The employees of the Respondent employed at its Big Stone Gap, Virginia facility constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act.2 Since about 15 June 1985, the Respondent has rec- ognized the Union as the collective-bargaining rep- resentative of the unit employees, such recognition being embodied in a collective-bargaining agree- ment effective by its terms from 1 October 1984 until 31 January 1988. The Union continues to be the exclusive representative under Section 9(a) of the Act. 1. About 11 July 1985 the Respondent, acting through its agent, H. C. McDaries, at the Respond- ent's facility, threatened employees with physical harm because of their union activities; interrogated employees regarding their union activities; threat- ened employees with mine closure because they en- gaged in union activities ; and threatened employees with more onerous work because they contacted the Union. About 4 October 1985 the Respondent, acting through Section Foreman Alfred Bartee at the Respondent's facility, solicited employees to quit the Respondent because of their union activi- ties; threatened employees with more onerous work if they did not quit the Respondent because of their union activities; and solicited employees to not as- sociate with a union supporter because of his union activities. We find that this conduct is in violation of Sec- tion 8(a)(1) of the Act. 2. At various times between 16 August and 10 October 1985, the Respondent assigned more oner- ous work to employees because they engaged in union and protected concerted activity by attempt- ing to enforce the contract. About 21 November 1985 the Respondent failed to recall employee Otis Lawson to return to work because of his activities on behalf of the Union. Between 26 November and 2 December 1985, the Respondent laid off employ- ee Marshall Johnson because of his activities on behalf of the Union. The Respondent engaged in such conduct because its employees joined, sup- ported, or assisted the Union, and engaged in con- certed activities for the purpose of collective bar- 2 The amended complaint and other papers in this case do not define the unit more specifically. 115 gaining or other mutual aid or protection, and in order to discourage employees from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. We find that this conduct of the Respondent is in violation of Section 8(a)(3) and (1) of the Act. 3. Since on and after 26 November 1985, the Re- spondent has repudiated the contract by its failure to notify and bargain with the Union regarding the effects of the closing of the mine. About 28 No- vember 1985 the Respondent, acting through Sec- tion Foreman Ronnie Kerns, failed and refused to accept a grievance filed pursuant to article XXIII, section C of the contract. Since on and after 2 De- cember 1985, the Respondent has failed to pay em- ployees benefits set forth in the contract, including, but not limited to, vacation pay, holiday pay, and insurance benefits . All this conduct occurred with- out prior notice to the Union and without its having been afforded an opportunity to bargain.3 We find that these refusals to bargain are in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. By threatening employees with physical harm because of their union activities ; interrogating em- ployees regarding their union activities; threatening employees with mine closure because they engaged in union activities; threatening employees with more onerous work because they contacted the Union; soliciting employees to quit the Respondent because of their union activities ; threatening em- ployees with more onerous work if they did not quit the Respondent because of their union activi- ties; and soliciting employees to not associate with a union supporter because of his union activities, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, and the Re- spondent thereby has been engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By assigning more onerous work to employees because they engaged in union and protected con- certed activity by attempting to enforce the con- s This factual finding tracks the allegation of the amended complaint which, in essence, alleges that the Respondent 's conduct in changing the employees' terms and conditions of employment set by the contract oc- curred without notice or opportunity to bargain . These unilateral changes, however, would be unlawful regardless of notice and the oppor- tunity to bargain being given the Union because they occurred while the collective-bargaining agreement was in effect. In light of Sec. 8 (d) of the Act, such midterm contract changes cannot be made without the consent of the Union. See, e g., Dunham-Bush, Inc., 264 NLRB 1347, 1348 ( 1982); C & S Industries, 158 NLRB 454 (1966) 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tract; failing to recall employee Otis Lawson to return to work because of his activities on behalf of the Union; and laying off employee Marshall John- son because of his activities on behalf of the Union, the Respondent has discriminated , and is discrimi- nating, in regard to the hire or tenure or terms or conditions of employment of its employees because of their union activities, and the Respondent there- by has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By repudiating the contract by its failure to notify and bargain with the Union regarding the ef- fects of the closing of the mine; by failing and re- fusing to accept a grievance filed pursuant to arti- cle XXIII, section C of the contract; and by failing to pay employees benefits set forth in the contract, including, but not limited to, vacation pay, holiday pay, and insurance benefits, all of which conduct occurred without prior notice to the Union and without its being afforded an opportunity to bar- gain, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The unfair labor practices of the Respondent described above affect commerce within the mean- ing of 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.4 We shall order the Respondent to offer discri- minatees Otis Lawson and Marshall Johnson imme- diate and full reinstatement to their former posi- tions or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges previ- ously enjoyed, and to make them whole for any loss of earnings, and other benefits suffered as a result of the discrimination practiced against them with backpay to be computed in the manner set forth in F. W Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded.5 4 The General Counsel requests a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, we rind it unnecessary to include such a clause. Accordingly, we deny the General Counsel 's request. S In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621. Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U .S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). We shall order the Respondent to make whole all employees who have incurred losses of wages and benefits because of the Company's failure to abide by the terms and conditions of the collective- bargaining agreement with the Union . Such mone- tary amounts are to be computed in accordance with the Board's decision in Ogle Protection Service, 183 NLRB 682, 683 (1970), with interest thereon as computed in New Horizons for the Retarded, supra. We shall order the Respondent to make whole all employees who have incurred losses of insur- ance benefits because of the Company's failure to abide by the terms and conditions of the collective- bargaining agreement with the Union by reimburs- ing unit employees for any expenses ensuing from the Respondent's failure to make such required payments as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). All payments to employees shall be made with interest as prescribed in New Horizons for the Retarded, supra. We shall order the Respondent to bargain with the Union over the effects of its decision to close the mine. We shall accompany our order to bargain with a limited backpay requirement designed to make whole the employees for losses sustained as a result of the violation, and to recreate in some practicable manner a situation in which the parties' bargaining position is not entirely devoid of eco- nomic consequences for the Respondent . We shall do so in this case by requiring the Respondent to pay backpay to its employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968). Thus, the Respondent shall pay employees backpay at the rate of their normal wages when last in the Respondent 's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects per- taining to the effects on its employees of its deci- sion to close its coal mine; (2) a bona fide impasse in bargaining; (3) the failure of the Union to re- quest bargaining within 5 days of this decision, or to commence negotiations within 5 days of the Re- spondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith ; but in no event shall the sum paid to any of these employees exceed the amount the affected employees would have earned as wages from the date on which he was laid off to the time he was recalled or secured equivalent em- ployment elsewhere, or the date on which the Re- spondent shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than these employees would INDIAN MINING 117 have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ.6 Interest on all such sums shall be paid in the manner described in New Horizons for the Re- tarded, supra. Finally, we shall order the Respond- ent to meet to discuss the grievance filed pursuant to article XXIII, section C of the collective-bar- gaining agreement. ORDER The National Labor Relations Board orders that the Respondent, Jerry Blanken and Others Un- known at Present, d/b/a Indian Mining, Successor to Indian Mining Corporation, Big Stone Gap, Vir- ginia, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with physical harm because of their union activities. (b) Interrogating its employees regarding their union activities. (c) Threatening employees with mine closure be- cause they engaged in union activities. (d) Threatening employees with more onerous work because they contacted the Union. (e) Soliciting employees to quit the Respondent because of their union activities. (f) Threatening employees with more onerous work if they did not quit the Respondent because of their union activities. (g) Soliciting employees to not associate with a union supporter because of his union activities. (h) Assigning more onerous work to employees because they engaged in union and protected con- certed activity by attempting to enforce the con- tract. (i) Failing to recall employees to work because of their activities on behalf of the Union. (j) Laying off employees because of their activi- ties on behalf of the Union. (k) Repudiating the contract between itself and the United Mine Workers of America, District 28, by failing to notify and bargain with the Union re- 8 This remedy for the Respondent 's failure to bargain over the effects of its closing of the mine is not intended to limit the otherwise appropri- ate remedy, set forth above, for the separately alleged and found acts of unlawful discrimination against employees Johnson and Lawson We rec- ognize, however, that the closing of the mine may limit the full applica- tion of the remedy prescibed for these two discriminatees. We shall, therefore, leave to compliance the determination of the effect of such closing on that remedy Similarly, we are aware that the mine's closing may restrict the appli- cation of the make-whole remedy for the Respondent's failure to abide by the terms of the collective-bargaining agreement We shall, therefore, leave for resolution in compliance the effects of the mine 's closing on the portions of the remedy relating to those make -whole obligations In no event, however, shall these potential limitations on the remedy 's applica- tion apply to the remedial requirement that the Respondent bargain with the Union over the effects of its decision to close the mine or affect the Transmarine Navigation aspects of the remedy garding the effects of the closing of the mine on the employees in the appropriate bargaining unit, which consists of the employees employed at the Respondent's Big Stone Gap, Virginia facility. (1) Unilaterally changing the terms and condi- tions of employment of the unit employees by fail- ing and refusing to accept a grievance filed pursu- ant to article XXIII, section C of the contract. (m) Unilaterally changing the terms and condi- tions of employment of the unit employees by fail- ing to pay employees benefits set forth in the con- tract, including, but not limited to, vacation pay, holiday pay, and insurance benefits. (n) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed in Section 7. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Otis Lawson and Marshall Johnson im- mediate and full reinstatement to their former posi- tions or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges previ- ously enjoyed, and make them whole with interest for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this deci- sion. (b) Abide by the terms and conditions of em- ployment of the 1 October 1984 to 31 January 1988 collective-bargaining agreement. (c) On request, negotiate with the Union over the effects on employees in the bargaining unit of the closing of the mine and, if an agreement is reached, embody such understanding in a signed agreement. (d) Pay any employees laid off due to the closing of the mine their normal wages with interest in the manner set forth in the remedy section of this deci- sion. (e) Make whole, with interest, unit employees who suffered losses of wages or benefits due to the Respondent's failure to abide by the collective-bar- gaining agreement, in the manner set forth in the remedy section of this decision. (f) On request, meet with the Union to discuss the grievance filed pursuant to article XXIII, sec- tion C of the contract. (g) 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. 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (h) Post at its facility in Big Stone Gap, Virginia, and at its coal mine located in Wise County, Vir- ginia, and mail to all the unit employees employed by the Respondent at these facilities at the time the unlawful conduct arose, copies of the attached notice marked "Appendix,"7 with the proof of service to be submitted to the Regional Director for Region 5. Copies of the notice, on forms pro- vided by the Regional Director for Region 5, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 7 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 " 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. \ WE WILL NOT threaten you with physical harm because of your union activities. WE WILL NOT interrogate you regarding your union activities. WE WILL NOT threaten you with mine closure because you engaged in union activities. WE WILL NOT threaten you with more onerous work because you contacted the Union. WE WILL NOT solicit you to quit because of your union activities. WE WILL NOT threaten you with more onerous work if you do not quit because of your union ac- tivity. WE WILL NOT solicit you to not associate with a union supporter because of his union activities. WE WILL NOT assign more onerous work to you because you engaged in union and protected con- certed activity by attempting to enforce the con- tract. WE WILL NOT fail to recall employees to work because of their activities on behalf of the Union. WE WILL NOT lay off employees because of their actitivies on behalf of the Union. WE WILL NOT repudiate the contract between ourselves and the United Mine Workers of Amer- ica, District 28, by failing to notify and bargain with the Union regarding the effects of the closing of the mine on our employees in the appropriate bargaining unit. WE WILL NOT unilaterally change the terms and conditions of employment of our unit employees by failing and refusing to accept a grievance filed pur- suant to article XXIII, section C of the contract. WE WILL NOT unilaterally change the terms and conditions of employment of our unit employees by failing to pay employees benefits set forth in the contract, including, but not limited to, vacation pay, holiday, and insurance benefits. 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 offer Otis Lawson and Marshall John- son immediate and full reinstatement to their former positions or, if these positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole, with interest, for any loss of earnings and other benefits suffered as a result of the discharge. WE WILL abide by the terms and conditions of employment of the 1 October 1984 to 31 January 1988 collective-bargaining agreement. WE WILL, on request, negotiate with the Union over the effects on our employees in the bargaining unit of the closing of the mine and, if an agreement is reached, embody such understanding in a signed agreement. WE WILL pay any of our employees laid off due to the closing of the mine their normal wages for a period specified by the National Labor Relations Board, with interest. WE WILL make whole, with interest, unit em- ployees who suffered losses of wages or benefits due to our failure to abide by the collective-bar- gaining agreement. WE WILL, on request, meet with the Union to discuss the grievance pursuant to article XXIII, section C of the contract. JERRY BLANKEN AND OTHERS UN- KNOWN AT PRESENT, D/B/A INDIAN MINING, SUCCESSOR To INDIAN MINING CORPORATION