Gold Star Minin Corp.

314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gold Star Mining Corporation and Teddy Bragg and Sam Hawkins and Walter Lovejoy and Hassel Price. Cases 9-CA-23816-1, 9-CA-23816-2, 9-CA-23816-3, and 9-CA-23816-4 June 23, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT Upon charges filed separately by Teddy Bragg, Sam Hawkins, Walter Lovejoy, and Hassel Price on December 9, 1986, the General Counsel of the National Labor Relations Board issued an order consolidating cases, consolidated complaint and notice of hearing against Gold Star Mining Corpo- ration, the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Rela- tions Act. Although properly served copies of the charges and consolidated complaint, the Respond- ent has failed to file an answer. On December 30, 1987, the General Counsel filed a Motion for Summary Judgment. On January 5, 1988, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On January 19, 1988, the Respondent replied by letter to the Notice to Show Cause. The National Labor Relations Board has delegated 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 14 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." According to the General Counsel's Motion for Summary Judgment, the order consolidating cases, consolidated complaint and notice of hearing was served on the Respondent, by certified United States mail, return receipt requested, at its Wood- ville, West Virginia minesite and its corporate of- fices in Beverly Hills, California, where the Re- spondent had previously received and acknowl- edged correspondence with respect to the instant cases.I The documents mailed to both addresses ' The Regional Director's order withdrawing approval of settlement agreement which issued on July 31, 1987, was also served in the same manner to the same addresses were returned to the Board's Regional Office marked "unclaimed." Notations on the returned re- ceipt indicate that the Respondent was given notice on August 4 and again on August 12, 1987, of such certified mail addressed to it. On October 5, 1987, pursuant to West Virginia Code, Chapter 31, Arti- cle I, Section 15, the Secretary of State for the State of West Virginia (Secretary of State) accept- ed service of the order consolidating cases, consoli- dated complaint and notice of hearing as well as the order withdrawing approval of settlement, and forwarded them to the Respondent at the address used by the Board by certified mail, with a return receipt requested. The documents were returned to the Secretary of State marked "unclaimed." There- after, the General Counsel caused a visit by Board personnel to be made to the most recent offices of the Respondent in Beverly Hills, California, and made telephonic inquiries to ascertain the where- abouts of the Respondent and/or its officers and representatives. These efforts were unsuccessful. In response to the Notice to Show Cause, the Respondent, under its Beverly Hills, California ad- dress, states that it has not been in receipt of any correspondence from the Board since May 1987. It encloses signed copies of a settlement agreement and notice to employees concerning the instant cases that, it asserts, were returned as requested to the Board and all parties to the proceeding the week of May 4, 1987.2 The Respondent alleges it has not yet been informed of the acceptance or nonacceptance of the settlement agreement by the complainants. The Respondent further asserts that due to the precarious financial condition of the Company and a long delay in the funding of a loan commitment to the Company, the Respondent was not able to finalize the payment of $5400 as pre- scribed in the settlement agreement. The Respond- ent states that it intends to make payment as soon as a financial restructuring can be effected. Finally, the Respondent states that as soon as it can pay the money, it will do so, but summary judgments of this type would make it far more difficult to raise money or start up again. In deciding this matter we note that in its re- sponse, the Respondent does not address the issue of its failure to file an answer to the consolidated complaint, even though the Notice to Show Cause sets forth the General Counsel's assertion that the Respondent failed to file an answer to the consoli- dated complaint as required by Sections 102.20 and 102.21 of the Board's Rules and Regulations, and that therefore all allegations of the consolidated complaint should be deemed to be admitted as true 2 The agreement provides, inter alia, for a total of $5400 in backpay 289 NLRB No. 48 GOLD STAR MINING CORP and summary judgment be granted on the plead- ings. Thus, even assuming the Respondent had pre- viously been unaware of the issuance of the con- solidated complaint, it now acknowledges aware- ness but does not file an answer, seek an extension of time to file an answer, or in any manner address the allegations of the complaint. Similarly, with regard to the settlement agreement, even assuming the Respondent received no further communication from the Board after returning its signed copies of the agreement, the Respondent does not allege that it complied with the agreement or is presently pre- pared to comply with it. Instead, the Respondent concedes that it was not able to comply with the agreement in May 1987, that it cannot comply at the present time, and that it will comply only at some indefinite future time when it can afford to make the required payments. Assuming the truth of all the Respondent's asser- tions, they do not show good cause for the Re- spondent's failure to file a timely answer to the complaint.3 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 West Virginia corporation, has been engaged in the mining and sale of coal at its facility in Julian, West Virginia, where it annu- ally sold coal valued in excess of $50,000 directly to Hatfield Terminals, Inc. and Hatfield Dock and Transfer Co. Hatfield Terminals, a Delaware cor- poration, with an office and place of business in Cincinnati, Ohio, has been engaged in buying and 3 Member Cracraft does not assume the truth of the Respondent's as- sertions or rely on the reasoning of the preceding paragraph In her view, the General Counsel's submission establishes that the Motion for Summa- ry Judgment should be granted based on the Respondent 's failure to file an answer to the July 31, 1987 consolidated complaint As the General Counsel points out, it is well established that a respondent 's failure or re- fusal to claim certified mail will not serve to defeat the purpose of the Act Michigan Expediting Service, 282 NLRB 210 (1986) In these circum- stances, the Respondent's unsworn assertion that it has not received any correspondence from the National Labor Relations Board since May 1987 other than the Notice to Show Cause does not warrant denial of the General Counsel's motion See Rule 56(e) of the Federal Rules of civil Procedure Thus, in Member Cracraft's opinion, the Respondent's failure to attach a supporting affidavit to its response precludes finding a genuine issue as to any material fact 4 The General Counsel requests that the Order include a provision for a visitatorial clause authorizing the Board , for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States courts of appeals enforcing this Order Under the circumstances of this case , we find it un- necessary to include such a clause Cherokee Marine Terminal, 287 NLRB 1080 (1988) 315 selling coal, and has annually shipped and sold, from its West Virginia facilities, coal valued in excess of $50,000 directly to points outside the State of West Virginia. Hatfield Dock and Transfer Co., a Florida corporation, with an office and place of business in Marmet, West Virginia, has been en- gaged in buying and selling coal and has annually sold and shipped, from its West Virginia facilities, coal valued in excess of $50,000 directly to points outside the State of West Virginia. Accordingly, we find that the Hatfield Terminals, Inc. and Hat- field Dock and Transfer Co. are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, that the Respondent, through its business operations with Hatfield Ter- minals, Inc. and Hatfield Dock and Transfer Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES In late November or early December 1986,5 Sec- retary-Treasurer Hugh Elder6 informed an employ- ee that he was being discharged for engaging in union activities. In August 1986, the Respondent, acting through Mine Manager Carl Bragg,7 threatened employees with the shutdown of the Respondent's mine if the Union was successful in its efforts to represent the Respondent's employees. In September Bragg threatened to discharge em- ployees who engaged in union activities. About October 23, Bragg, at a location approxi- mately one-quarter mile from the Respondent's minesite, informed employees that if they did not cross a picket line and return to work, they would be discharged. About November 6, Bragg threat- ened employees with unspecified reprisals if they did not cease their support for, and activities on behalf of, the Union. From mid-October through mid-November, the Respondent's employees, including Teddy Bragg, Sam Hawkins, Walter Lovejoy, and Hassel Price, concertedly complained to the Respondent regard- ing the late payment and nonpayment of wages. From about October 14 to about October 22 and again from about November 11 through about No- vember 13, employees Bragg, Hawkins, Lovejoy, Price, and other employees of the Respondent ceased work concertedly and engaged in a strike. 5 All dates are in 1986 unless otherwise indicated 6 Elder is a supervisor within the meaning of Sec 2(11) of the Act and an agent of the Respondent within the meaning of Sec 2(13) of the Act 7 Bragg is a supervisor within the meaning of Sec 2(11) of the Act and an agent of the Respondent within the meaning of Sec 2(13) of the Act 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD About November 14, the Respondent discharged the four above-named employees because they con- certedly complained about the late payment and nonpayment of wages, because they engaged in a strike, and because they joined, supported, or as- sisted the Union, and engaged in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection. The Respondent otherwise endeavored to discourage these and its other employees from engaging in such activities or other concerted activities for the purpose of col- lective bargaining or other mutual aid or protec- tion. CONCLUSIONS OF LAW 1. By informing an employee that he had been discharged for engaging in union activities; threat- ening employees with the shutdown of the mine if the Union is successful in its efforts to represent the employees; threatening to discharge employees who engaged in union activities; threatening em- ployees with discharge if they did not cross a picket line and return to work; threatening employ- ees with unspecified reprisals if they did not cease their support for, and activities on behalf of, the Union; and discharging employees Teddy Bragg, Sam Hawkins, Walter Lovejoy, and Hassel Price for concertedly complaining about the late pay- ment and nonpayment of wages, engaging in a strike, and joining, supporting, or assisting the Union and engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discharging employees Teddy Bragg, Sam Hawkins, Walter Lovejoy, and Hassel Price be- cause they joined, supported, or assisted the Union, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and (3) 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. Having found that the Respondent has unlawful- ly discharged employees Teddy Bragg, Sam Haw- kins, Walter Lovejoy, and Hassel Price, we shall order it to offer these employees immediate and full reinstatement to their former positions or, if those positions no longer exist , to substantially equivalent positions without prejudice to their se- niority and other rights and privileges previously enjoyed, and to make these employees whole for any loss of earnings they may have suffered as a result of the Respondent's unlawful discharges. Backpay and interest shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Re- tarded.8 We shall also order the Respondent to remove from its files any reference to the unlawful dis- charges and notify the employees in writing that this has been done and that it will not use the dis- charges against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Gold Star Mining Corporation, Julian, West Virginia, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Informing employees that they have been dis- charged for engaging in union activities. (b) Threatening employees with the shutdown of the mine if the Union is successful in its efforts to represent the employees. (c) Threatening employees with discharge if they do not cross the picket line. (d) Threatening employees with reprisals if they do not cease their support for, and activities on behalf of, the Union. (e) Discharging employees for joining , support- ing, or assisting the Union, concertedly complain- ing about the late payment and nonpayment of wages, engaging in a strike , and otherwise engag- ing in concerted activities for the purpose of col- lective bargaining or other mutual aid or protec- tion. (f) 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 neces- sary to effectuate the policies of the Act. (a) Offer Teddy Bragg, Sam Hawkins, Walter Lovejoy, and Hassel Price immediate and full rein- statement to their former jobs or , if those jobs no longer exist, to substantially equivalent positions, 8 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 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) GOLD STAR MINING CORP without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (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 Julian, West Virginia, copies of the attached notice marked "Appendix."9 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 9 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 317 WE WILL NOT inform our employees that they have been discharged for engaging in union activi- ties. WE WILL NOT threaten our employees with the shutdown of our mine if the Union or any other labor organization is successful in its efforts to rep- resent our employees. WE WILL NOT threaten our employees with dis- charge if they do not cross the picket line. WE WILL NOT threaten our employees with un- specified reprisals if they do not cease their support for, and activities on behalf of, the Union or any other labor organization. WE WILL NOT discharge our employees for join- ing, supporting, or assisting the Union, concertedly complaining about the late payment and nonpay- ment of wages, engaging in a strike, or otherwise engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion. 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 Teddy Bragg, Sam Hawkins, Walter Lovejoy, and Hassel Price immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. GOLD STAR MINING CORPORATION 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.