Apple Jack Mining Corp.

APPLE JACK MINING CORP. Apple Jack Mining Corp. and United Mine Workers of America. Case 9-CA-26024 May 26, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On a charge filed by the United Mine Workers of America December 14, 1988, the General Coun- sel of the National Labor Relations Board issued a complaint January 27, 1989, against Apple Jack Mining Corp., 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 Respond- ent has failed to file an answer. On March 20, 1989, the General Counsel filed a Motion for Summary Judgment. On March 23, 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 Memorandum in Support of Motion for Summary Judgment disclose that coun- sel for the General Counsel, by letter dated Febru- ary 23, 1989, notified the Respondent that unless an answer was filed by close of business March 3, 1989, a Motion for Summary Judgment would be filed. By an undated letter in response, the Respondent stated that Apple Jack Mining was temporarily shut down because the United Mine Workers of America had an injunction against Vision Coal, the company that was buying Apple Jack's coal, and the Respondent had to truck coal across Vision property to get to other coal markets. The letter included the names and addresses of the employees and stated that all of them "were paid in full" "Oc- tober 10, 1989 [sic]," that none of them had filed any complaints, and that all had obtained employ- 293 ment at L & M Mining in Cyclone, West Virginia. The letter also stated that Apple Jack was prepared to return to production as soon as an agreement could be reached on crossing Vision property. By letter dated March 2, 1989, counsel for the General Counsel advised the Respondent that its letter did not constitute a proper answer to the complaint, enclosed a copy of the pertinent Board Rules and Regulations, and stated that if an answer was not received by March 10, 1989, a Motion for Summa- ry Judgment would be filed. The Respondent did not reply. We find that the Respondent's letter is insuffi- cient to constitute an answer to the complaint under Section 102.20 of the Board's Rules and Regulations because it does not specifically admit, deny, or explain each of the allegations in the com- plaint. See Kramer Volkswagen, 284 NLRB No. 28 (June 15, 1987) (not published); Goldstein Co., 274 NLRB 682 (1985). 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 corporation with its principal office in Baisden, West Virginia, has been engaged in the mining of coal in the vicinity of Oceana, West Virginia. During the calendar year 1988, the Respondent, in the course and conduct of its busi- ness operations, sold and shipped from its Oceana, West Virginia facility products, goods, and materi- als valued in excess of $50,000 directly to Vision Coal Company, a nonretail West Virginia enter- prise which, in turn, has annually sold and shipped products, goods, and materials valued in excess of $50,000 from its West Virginia facility directly to points outside the State of West Virginia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Unit and the Union 's Representative Status The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: 294 NLRB No. 23 294 DECISIONS OF THE NATIONAL LABOR' RELATIONS BOARD The employees of the Respondent described in the National Bituminous Coal Wage Agree- ment of 1988. Since September 15, 1986 , and at all times mate- rial, the Union has been the designated exclusive collective-bargaining representative of the employ- ees in the unit and since that date has been recog- nized as such representative by the Respondent. Such recognition has been embodied in successive collective-bargaining agreements (The National Bi- tuminous Coal Wage Agreement ), the most recent of which is effective by its terms for the period February 1, 1988, to February 1, 1993. At all times since September 15, 1986, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the unit for pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. B. Refusals to Bargain On October 11, 1988, the Union, by letter, re- quested the Respondent to negotiate regarding the effects on the unit of the Respondent's closure of the Oceana, West Virginia mine . Since about Octo- ber 11, 1988 , the Respondent has failed and refused to negotiate with the Union concerning the effects of the closure, a mandatory subject of bargaining. Since about October 11, 1988, the Union, by letter, has requested the Respondent to furnish the Union with information that is necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining representative of the unit. Since about October 11 , 1988, the Re- spondent has failed and refused to furnish the Union the requested information. By the acts and conduct described above, the Respondent has failed and refused , and is failing and refusing, to bargain collectively and in good faith with the representative of its employees. Ac- cordingly, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By failing and refusing to bargain with the Union over the effects of the closing of its Oceana, West Virginia mine and by failing and refusing to furnish the Union with information necessary for, and rele- vant to, the Union's performance of its function as the exclusive collective-bargaining representative of the unit, the Respondent has engaged in unfair labor practices affecting commerce 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 action designed to effectuate the policies of the Act. We shall order the Respondent to bargain on re- quest with the Union over the effects of the closing of its Oceana, West Virginia mine and to furnish the Union with the requested information necessary for, and relevant to, the Union's performance of its function as the exclusive collective -bargaining rep- resentative of unit employees. With respect to the Respondent 's unlawful fail- ure to bargain with the Union over the effects of the Respondent's termination of operations, the bargaining unit employees have been denied an op- portunity to bargain through their collective-bar- gaining representative at a time when the Respond- ent might still have been in need of their services and at a time when a measure of balanced bargain- ing power existed . Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practices committed. Accordingly, we deem it necessary , in order to effectuate the purpose of the Act , to require the Respondent to bargain with the Union representing its employees, on request, about the effects of the closure on unit employees, and shall accompany the Order with a limited backpay requirement de- signed both to make the employees whole for the losses suffered as a result of the Respondent 's fail- ure to bargain and to recreate in some practicable manner a situation in which the parties' bargaining position is not entirely devoid of economic conse- quences 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 re- quired in Transmarine Navigation Corp., 170 NLRB 389 (1968). We shall order the Respondent to pay employees in the unit 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 events: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closing on the unit; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of the date 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 APPLE JACK MINING CORP bargain in good faith. In no event shall the sum paid to any of the employees in the unit exceed the amount the employees would have earned as wages from the date on which the Respondent terminated its Oceana, West Virginia operations to the time they secured equivalent employment elsewhere, or the date the Respondent shall have made a bona fide offer to bargain , whichever occurs sooner; provided, however, that in no event shall the sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent 's employ. Inter- est on all sums shall be paid in the manner pre- scribed in New Horizons for the Retarded. i In view of the Respondent's termination of its Oceana, West Virginia operations , we shall also provide for mail notices to employees. ORDER The National Labor Relations Board orders that the Respondent, Apple Jack Mining Corp., Bais- den, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to afford the Union an opportunity to negotiate and bargain with respect to the effects of the termination of the Respond- ent's operations in the vicinity of Oceana, West Virginia. (b) Failing and refusing to furnish the Union with information necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining representative of the bargain- ing unit employees. (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) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit with respect to the effects of the termination of the Respondent's operations in the vicinity of Oceana, West Virginia: The employees of Respondent described in the National Bituminous Coal Wage Agreement of 1988. (b) On request, furnish the Union with informa- tion that the Respondent has failed to furnish and that is necessary for, and relevant to, the Union's performance of its function as the exclusive collec- 1 283 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 U S C § 6621 295 tive-bargaining representative of the bargaining unit employees. (c) Pay the unit employees laid off or discharged on the date the Respondent terminated its oper- ations their normal wages, plus interest, for the period set forth in the remedy section of this deci- sion. (d) 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. (e) Post at its facilities in Baisden, West Virginia and mail to the Union and to all unit employees who were employed at its Oceana, West Virginia facility a copy of the attached notice marked "Ap- pendix."2 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representa- tive, shall be mailed by the Respondent immediate- ly upon receipt as above directed and 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. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 2 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 bargain collec- tively and in good faith with the representative of our employees with respect to the effects of our termination of operations at Oceana, West Virginia. WE WILL NOT fail and refuse to furnish informa- tion requested by the Union that is necessary for 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and relevant to the Union 's performance of its function as the exclusive collective -bargaining rep- resentative of the employees in the bargaining unit. 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 , on request, bargain with the Union as the exclusive representative of our employees in the following bargaining unit with respect to the effects of the termination of our operations in the vicinity of Oceana , West Virginia: The employees of Respondent described in the National Bituminous Coal Wage Agreement of 1988. WE WILL, on request, furnish the Union with in- formation necessary for and relevant to the Union's performance of its function as the exclusive collec- tive-bargaining representative of the employees in the bargaining unit. WE WILL pay unit employees laid off or dis- charged on the date we terminated our operations at Oceana, West Virginia their normal wages, plus interest, for a period required by the Decision and Order. APPLE JACK MINING CORP.