Little Man Coal Co.

358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Little Man Coal Company and United Mine Work- ers of America, District 17, Sub-District 3. Case 9-CA-26239 FINDINGS OF FACT I. JURISDICTION August 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS Upon a charge filed by the Union on March 6, 1989,1 and an amended charge on March 22, the Acting General Counsel of the National Labor Re- lations Board issued a complaint against Little Man Coal Company, 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 May 15 the Acting General Counsel filed a Motion for Summary Judgment. On May 18 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 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 alle- gations in the Motion for Summary Judgment dis- close that counsel for the Acting General Counsel, by letter dated May 3, notified the Respondent that unless an answer was received immediately, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the Acting General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing ' Dates are 1989 unless otherwise specified. The Respondent, a corporation with an office and place of business in Man, West Virginia, oper- ates a coal mine at its facility in Gilbert, where it annually ships products, goods, and materials valued in excess of $50,000 directly to M & H Coal, Inc., a nonretail enterprise located within the State of West Virginia, which, in turn, annually sells and ships from its West Virginia facility prod- ucts, goods, and materials valued in excess of $50,000 directly to firms located outside the State of West Virginia. We find that the Respondent is an employer 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 described in the National Bituminous Coal Wage Agreement of 1988 (the unit), constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. Since about Septem- ber 12, 1988, the Union, by virtue of Section 9(a) of the Act, has been the exclusive collective-bar- gaining representative of the unit and has been rec- ognized as such by the Respondent, such recogni- tion being embodied in a collective-bargaining agreement (agreement) between the Respondent and the Union on behalf of its affiliated districts and locals, effective by its terms from January 1, 1989, through February 1, 1993. Since about November 1988, the Respondent has refused to comply with the terms of the agreement, including the failure to pay holiday pay to its em- ployee Terry Salmons as required by the agree- ment; and since about January 1989, the Respond- ent has refused to comply with the terms of the agreement, including the failure to provide medical and hospitalization insurance to its employees, in- cluding Terry Salmons, as required by the agree- ment. We find that these refusals constitute unlaw- ful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing to comply with the terms of the agreement including the failure since November 1988 to pay holiday pay to its employee Terry Salmons, and the failure since January 1989, to pro- vide medical and hospitalization insurance to its employees, including Terry Salmons, as required by the agreement, the Respondent has engaged in unfair labor practices affecting commerce within 296 NLRB No. 47 LITTLE MAN COAL CO. 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 actions designed to effectuate the policies of the Act. We shall order the Respondent to bargain with the Union by complying with the terms of the agreement including paying holiday pay to the unit employees and providing medical and hospitaliza- tion insurance to them . We shall also order the Re- spondent to make its employees whole for any losses resulting from its refusal to comply with the terms of the agreement, including remitting all con- tractually required holiday pay to employee Terry Salmons, or to any other unit employee from whom such pay was withheld because of the Re- spondent's unlawful conduct, in accordance with the method described in Ogle Protection Service, 183 NLRB 682, 683 (1970), with interest to be comput- ed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987); and to make all employees, including Terry Salmons, whole as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), for any expenses or loss of medical or hospitalization benefits resulting from the Respondent's failure to provide them with the contractually required medi- cal and hospitalization insurance , with interest as computed under New Horizons for the Retarded. If employee benefit funds administer holiday pay and medical and hospitalization insurance under the agreement, as part of the "make-whole" remedy the Respondent shall be required to remit any addi- tional amounts due to the fund in accordance with Merryweather Optical Co., 240 NLRB 1213 (1979). ORDER The National Labor Relations Board orders that the Respondent, Little Man Coal Company, Man, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Union by refus- ing to comply with the terms of its current collec- tive-bargaining agreement with the Union, includ- ing its failure to pay holiday pay to its employees in the appropriate unit and its failure to provide medical and hospitalization insurance to them, as required by that agreement . The appropriate unit consists of the employees of the Respondent de- scribed in the National Bituminous Coal Wage Agreement of 1988. 359 (b) 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) Upon request, bargain with the Union by complying with the terms and conditions of its cur- rent collective-bargaining agreement with the Union, including, but not limited to, its provisions governing holiday pay and medical and hospitaliza- tion insurance. (b) Make whole its unit employees , in particular Terry Salmons, for any losses resulting from its re- fusal to comply with the terms and conditions of its collective-bargaining agreement , including loss of contractually required holiday pay, or for their ex- penses or loss of moneys or benefits resulting from the Respondent's failure to provide contractually required medical and hospitalization insurance, in the manner set forth in the remedy section of this decision. '-) Post at its facility in Man, West Virginia, copies of the attached notice marked "Appendix."2 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. (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) 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." 360 DECISIONS 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 refuse to bargain with United Mine Workers of America, District 17, Sub-District 3, the Union, by refusing to comply with our cur- rent collective-bargaining agreement with it, in- cluding failing to pay holiday pay to our employ- ees in the bargaining unit and failing to provide medical and hospitalization insurance to them, as required in that agreement . The bargaining unit consists of our employees as described in the Na- tional 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, on request, bargain with the Union by complying with the terms and conditions of our current collective-bargaining agreement with the Union, including, but not limited to, its provisions governing holiday pay and medical and hospitaliza- tion insurance. WE WILL make whole our bargaining unit em- ployees, in particular Terry Salmons, for any losses resulting from our refusal to comply with the terms and conditions of our collective-bargaining agree- ment including loss of contractually required holi- day pay, or for their expenses or loss of moneys or benefits resulting from our failure to provide con- tractually required medical and hospitalization in- surance to them, with interest. LITTLE MAN COAL COMPANY