U S Trustee In Bankruptcy (Golden Shamrock Coal Co.)

342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD James Michael Shull, U S Trustee in Bankruptcy (Golden Shamrock Coal Company ) and United Mine Workers of America Cases 9-CA-24122 and 29-CA-24456 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed in Case 9-CA-24122 on March 19 1987 by the Union United Mine Work ers of America the General Counsel issued a com plaint on May 5 1987 and an amended complaint on June 29 1987 against Golden Shamrock Coal Company the Respondent alleging that it had vio lated Section 8(a)(1) and (5) of the National Labor Relations Act On a charge filed in Case 9-CA- 24456 by the Union on July 1 1987 subsequently amended on July 6 1987 the General Counsel issued a consolidated second amended complaint on August 4 1987 Thereafter the General Coun sel issued a consolidated third amended complaint on March 8 1988 The Respondent has filed two answers in this action the first on June 22 and the second on July 27 1987 On May 2 1988 the General Counsel filed a Motion for Summary Judgment On May 3 1988 the Board issued an order transferring the proceed ing 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 The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel Ruling on Motion for Summary Judgment In its Motion for Summary Judgment the Gener al Counsel contends that the Respondent has failed to file an answer to the March 8 1988 consolidated third amended complaint and that under Section 102 20 of the Boards Rules and Regulations the Board should find the allegations of that complaint to be true and issue an Order based on such find ings I We find summary judgment, as moved is not proper under the circumstances of this case In so 1 The General Counsel indicates in her memorandum supporting the motion that by letter dated March 25 1988 confirming a telephone con versation on March 3 1988 the Respondents trustee in bankruptcy was informed of the requirement to file an anwer to the consolidated third amended complaint issued on March 8 1988 and was advised that if an answer was not filed within 14 days a Motion for Summary Judgment would be filed The General Counsel further asserts that the Respond ent s trustee stated in the telephone conversation that he did not intend to file an answer The basis for the refusal is not revealed in the record finding we note that the motion filed by the Gen eral Counsel is based entirely on the consolidated third amended complaint dated March 8 1988 Neither the General Counsels motion nor its sup porting papers contain any reference to the earlier complaints or the answers filed in this action The record shows that there are a total of four complaints and two answers The Regional Direc tor issued an initial complaint in this matter May 5 1987 alleging that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to provide re quired medical insurance coverage On June 22 1987 the Respondent filed an answer denying most substantive allegations The Regional Director then issued on June 29 1987 an amended complaint and order reschedul ing hearing The sole difference from the previous complaint is that a debtor in possession under chap ter 11 of the Federal Bankruptcy Code is named as the Respondent The Respondent filed a second answer on July 27 1987 repeating the denials of the first answer and denying the failure to remit union dues collected from employees (The later denial concerned allegations of the charges in Case 9-CA-24456 that had been filed and served after the first answer but had not been included in the amended complaint) The Regional Director issued an order consols dating cases and a conslidated second amended complaint on August 4 1987 The sole difference between this complaint and the amended complaint is that this complaint adds the allegations regarding the Respondents failure to remit collected union dues an allegation that as noted, had already been denied by the Respondent in its second answer The Regional Director next issued an order con solidating cases and a consolidated third amended complaint2 on March 8 1988 which differed from the consolidated second amended complaint only in that it named a trustee in bankruptcy as the re spondent Thus the Respondent in its second answer denied all the violations alleged in the con solidated third amended complaint Specifically the Respondent has denied allegations that it has failed to provide medical insurance coverage for its employees that it has withheld union dues from its employees and failed to remit such funds to the Union and that it has committed any unfair labor practices By those denials the Respondent has raised litigable issues 3 In ruling as we do we reit 2 The consolidated third amended complaint contains no references to the original complaint or the answers filed in this action S There is no indication that the Respondent withdrew its answers at any time Consequently we are unwilling to construe the Respondents trustees stated intent to file no answer to the consolidated third amended complaint as meaning that the Respondent was no longer contesting this matter 291 NLRB No 49 JAMES MICHAEL SHULL 343 erate that the only differences between the several complaints is the added charge of withholding union dues and the Respondents changing status in bankruptcy 4 In addition we note that the General Counsel s motion does not indicate why the earlier answers were insufficient Therefore because the Respond ent s timely filed answers respond to the substan tive issues raised by the complaints and in the ab sence of any explanation that would warrant disre garding these answers we find it inappropriate to grant the General Counsels Motion for Summary Judgment Nottingham Restaurant 243 NLRB 567 (1979) Auburn Die Co 282 NLRB 1044 (1987) Marko Contractors, 269 NLRB 990 (1984) ORDER 4 A respondents entrance into bankruptcy either as a debtor in posses Sion or as a trustee and the distinctions between the latter administrators in bankruptcy proceedings have no effect on the identity of the respond ent originally charged in our proceedings with committing unfair labor practices and hence have no effect in and of themselves on answers al ready filed on its behalf See Jersey Juniors, Inc 230 NLRB 329 332 (1977) See also Ohio Container Service 277 NLRB 305 306 (1985) It is ordered that the General Counsels Motion for Summary Judgment is denied IT IS FURTHER ORDERED that these proceedings are remanded to the Regional Director for Region 9 for further appropriate action