Powell & Hunt Coal Co , Inc

842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Powell & Hunt Coal Co , Inc and District 17, United Mine Workers of America Case 9-CA- 26006 April 25, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS Upon a charge filed by the Union December 9, 1988, the General Counsel of the National Labor Relations Board issued a complaint against Powell & Hunt Coal Co, Inc, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act Although properly served copies of the charge and complaint,' the Respondent has failed to file an answer On March 6, 1989, the General Counsel filed a Motion for Summary Judgment On March 10, 1989, 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 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 14 days of service, "all of 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 allegations in the General Counsel's memorandum in support of the Motion for Summary Judgment i The General Counsel s memorandum in support of the Motion for Summary Judgment alleges that the Respondent refused service of the charge that was sent by certified mail on December 9 1988 The copy of the cover letter attached to the charge bears the notation Retd 12/22/88 Refused The address that appears on the charge and on the cover letter is the same as the address on the envelope containing the complaint which also was refused The General Counsel s memorandum further avers that the charge was served by regular mail on December 22 1988 and was not returned to the Regional Office undelivered We find that the charge was effectively served on the Respondent The General Counsel alleges that the Respondent also refused service of the complaint which was sent by certified mail on January 12 1989 The certified mail envelope containing the complaint a copy of which is attached to the motion is marked refused as is the certified mail enve lope containing the letter from counsel for the General Counsel to the Respondent dated February 13 1989 warning that he would move for summary judgment if the Respondent failed to answer the complaint The General Counsels memorandum alleges that like the charge the com plaint and the warning letter were also served by regular mail and were not returned to the Regional Office We find that the Respondent has re fused to accept delivery of the charge and the complaint disclose that counsel for the General Counsel, by letter dated February 13, 1989, notified the Re- spondent that unless an answer was received by February 22, 1989, a Motion for Summary Judg- ment would be filed 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 Judg- ment 2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a corporation, has been en gaged in mining coal at its facility in the vicinity of Hanover, West Virginia During the 12 months prior to the issuance of the complaint, the Re- spondent, in the course and conduct of those oper- ations, sold and shipped from that facility products, goods, and materials valued in excess of $50,000 di- rectly to National Mines Corporation, a nonretail West Virginia enterprise, which in turn annually sold and shipped products, goods, and materials valued in excess of $50,000 from its West Virginia facility directly to points outside West Virginia We find that the Respondent is an employer en- gaged 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 The employees of the Respondent described in the National Bituminous Coal Wage Agreement of 1988 constitute a unit appropriate for collective bargaining under Section 9(b) of the Act Since March 9, 1988, the Union has been designated the exclusive collective bargaining representative of the employees in the unit and has been recognized as such by the Respondent That recognition has been embodied in a collective-bargaining agree- ment, the National Bituminous Coal Wage Agree- ment, which is effective from February 1, 1988, to February 1, 1993 Since March 9, 1988, the Union, by virtue of Section 9(a) of the Act, has been the exclusive representative of the unit employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment 2 The Respondents refusal to accept delivery of the charge and com plaint does not of course constitute good cause for its failure to file an answer See Michigan Expediting Service 282 NLRB 210 fn 6 (1986) Aslm Management Co 291 NLRB No 33 slip op at 3 (Sept 30 1988) 293 NLRB No 105 POWELL & HUNT COAL CO About March 9, 1988, the Respondent and the Union reached full agreement on and executed a collective-bargaining contract covering the unit employees Since about June 22, 1988, the Re- spondent has failed and refused to adhere to the substantive terms of that contract by failing to pro- vide the employees in the unit with the wage rates, holiday and vacation pay, health insurance, and other benefits set forth in the contract, and by fail- ing to abide by the procedure set forth in the con- tract for resolving disputes concerning the employ- ees' health insurance coverage By failing and re fusing to abide by the terms of its contract with the Union, the Respondent has violated Section 8(a)(5) and (1) of the Act Since about November 9, 1988, the Union has re quested the Respondent to furnish the Union with a copy of all health, life, and accident insurance policies concerning unit employees that were in effect since January 1, 1988, as well as a list of the names, addresses, telephone numbers, social securi- ty numbers, and dates of hire of all unit employees employed as of January 31, 1988, and at the time of the request 3 The information requested by the Union is necessary for, and relevant to, the Union in its role as the exclusive bargaining representative of unit employees Since about November 9, 1988, the Respondent has failed and refused to furnish the information requested By failing and refusing to provide the Union with that information, the Respondent has violated Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By failing and refusing to adhere to the terms of its collective bargaining agreement with the Union and to provide the Union with information that is relevant and necessary to its role as exclusive bar- gaining representative of employees in the unit, the Respondent has failed and refused, and is failing and refusing, to bargain collectively and in good faith with the representative of its employees as re- quired by Section 8(d) of the Act, and thereby has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) 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 3 The request was made by letter addressed to Herman Powell press dent of the Respondent At all times material to this proceeding Powell has been a supervisor of the Respondent 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 843 action designed to effectuate the policies of the Act We shall require the Respondent to adhere to the terms of its collective bargaining agreement with the Union and, on request, to furnish the Union with information that is relevant and neces sary to its role as exclusive bargaining representa- tive of employees in the unit We also shall require the Respondent to make whole its unit employees for any losses they may have suffered as a result of its failure and refusal to adhere to the terms of the collective-bargaining agreement 4 ORDER The National Labor Relations Board orders that the Respondent, Powell & Hunt Coal Co, Inc, Oceana, West Virginia, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Failing to adhere to the terms of its collec- tive-bargaining agreement with District 17, United Mine Workers of America (the Union) (b) Failing and refusing to furnish the Union with information that is relevant and necessary to its role as exclusive collective-bargaining represent- ative of employees of the Employer in an appropri- ate unit as described in the National Bituminous Coal Wage Agreement of 1988 (c) 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) Adhere to the terms of the collective-bargain ing agreement that the Respondent entered into with the Union about March 9, 1988, specifically with respect to contractual wage rates, holiday and vacation pay, health insurance, and other benefits, and to abide by the contractual procedure for re- solving disputes regarding employees' health insur- ance coverage (b) On request, furnish the Union with informa- tion that is relevant and necessary to its role as ex- clusive collective-bargaining representative of em- ployees in the unit Specifically, the Respondent shall, on request, provide the Union with copies of all health, life, and accident insurance policies con- cerning unit employees that were in effect since January 1, 1988, as well as a list of the names, ad- dresses, telephone numbers, social security num- bers, and dates of hire for all unit employees em- ployed as of January 31, 1988 and at the time of 4 The identities of employees who suffered such losses shall be deter mined in compliance proceedings 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union's November 9, 1988 request for informa tion (c) Make whole the employees in the unit for any losses they may have suffered as a result of the Respondent's failure and refusal to adhere to the terms of the collective-bargaining agreement, as provided in Ogle Protection Service, 183 NLRB 682, 683 (1970), and Kraft Plumbing & Heating, 252 NLRB 891 (1980), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987) (d) Post at its facility in the vicinity of Hanover, West Virginia, copies of the attached notice marked "Appendix "5 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em ployees are customarily posted Reasonable 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 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 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 fail and refuse to adhere to the terms of our collective-bargaining agreement with District 17, United Mine Workers of America (the Union) WE WILL NOT fail and refuse to furnish the Union with information that is relevant and neces- sary to its role as exclusive collective-bargaining representative of employees in the unit described in the National Bituminous Coal Wage Agreement of 1988 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 adhere to the terms of our collective bargaining agreement with the Union WE WILL, on request, furnish the Union with in- formation that is relevant and necessary to its role as bargaining representative of employees in the unit WE WILL make whole our employees for any losses they may have sustained as a result of our failure and refusal to adhere to the terms of our collective-bargaining agreement with the Union, with interest POWELL & HUNT COAL CO, INC