Sherwood Coal Co.

SHERWOOD COAL COMPANY Sherwood Coal Company and Ira A. Evans. Case 9- CA-14362 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 24, 1979, by Ira A. Evans, an individual, herein called the Charging Party, and duly served on Sherwood Coal Company, herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on February 6, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Re- lations Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about September 14, 1979, Respondent discharged em- ployee Ira A. Evans, the Charging Party herein, and employees Randall Kirk, Fred Kirk, Danny Williams, Roger Fry, Wandal Atkins, Mike Shep- herd, Bill Vance, and Terry Dillon because they engaged in protected concerted activities (i.e., ces- sation of work in protest of abnormally dangerous working conditions) and to discourage employees from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Respondent failed to file an answer to the complaint. On July 31, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on August 6, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: 252 NLRB No. 74 The respondent shall, within 10 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing issued on February 6, 1980, and served on Respondent by registered mail, return receipt dated February 7, 1980, specifically states that, unless an answer to the complaint is filed within 10 days from the serv- ice thereof "all of the allegations in the complaint shall be deemed admitted to be true and shall be so found by the Board." As no answer was filed and no extension of time to answer requested or grant- ed before the due date, counsel for the General Counsel, on July 31, 1980, filed a Motion for Sum- mary Judgment pursuant to Sections 102.20 and 102.21 of the National Labor Relations Board Rules and Regulations. On August 6, 1980, the Board issued a Notice To Show Cause why the General Counsel's motion should not be granted and, on August 22, 1980, Re- spondent filed a response thereto entitled "Re- sponse To Show Cause." Respondent's response to the Notice To Show Cause argues that the General Counsel's Motion for Summary Judgment should not be granted, and denies each and every allega- tion of the motion.' Respondent's only explanation as to its failure to file a timely answer to the com- plaint is that its counsel was delinquent in review- ing the matter. 2 We do not believe Respondent's submissions constitute good cause, within the meaning of Section 102.20 of the Board's Rules and Regulations, for failure to file a timely answer. Ac- cordingly, under the rule cited above, the allega- tions of the complaint shall be deemed to be ad- ' Although Respondent denies each allegation of the motion which necessarily includes a denial of service of process of the complaint, the fact that Respondent argues that its attorney was delinquent in reviewing the matter indicates Respondent did receive the complaint. 2 In 0 R. Cooper and Son, 225 NLRB 1255 (1976), we held that the incapacitation of a respondent's owner during the time in which the answer as due was not good cause. In Sullivan Magee & Sullivan. Inc. Magee Blusveh Corp.. SMS Controctors. Patrick J Magee. and John F Magee, 229 NLRB 543 (1977). the failure of a respondent's attorney to file an answer because he had not been paid was likewise insufficient to show cause 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitted to be true and are so found, and, according- ly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a West Virginia corporation with an office and place of business at Ethel, West Virginia. It is engaged in the underground mining of coal. During the past 12 months, a representative period, Respondent sold and shipped from its Ethel, West Virginia, facility goods, materials, and products valued in excess of $50,000 directly to other enter- prises located within the State of West Virginia, in- cluding Island Creek Coal Company. Island Creek Coal Company, a West Virginia corporation, is engaged in the mining and sale of coal at various sites throughout West Virginia and annually sells and ships goods, materials, and prod- ucts valued in excess of $50,000 from its West Vir- ginia facilities directly to points outside the State of West Virginia. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE CHARGING PARTY Ira A. Evans, the Charging Party herein, and Randall Kirk, Fred Kirk, Danny Williams, Roger Fry, Wandal Atkins, Mike Shepherd, Bill Vance, and Terry Dillon are employees within the mean- ing of Section 2(3) of the Act. II1. THE UNFAIR LABOR PRACTICES The 8(a)(1) Violations On or about September 14, 1979, Respondent discharged employee Ira A. Evans, the Charging Party herein, and employees Randall Kirk, Fred Kirk, Danny Williams, Roger Fry, Wandal Atkins, Mike Shepherd, Bill Vance, and Terry Dillon. Re- spondent engaged in this conduct because the em- ployees engaged in protected concerted activities (i.e., a work stoppage in protest of abnormally dan- gerous working conditions) and to discourage em- ployees from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. We find that, by the acts and conduct set forth, Respondent has interfered with, restrained, and co- erced employees in the exercise of the rights guar- anteed them under Section 7 of the Act, and there- by has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. IV. THEI EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II1, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Sec- tion (a)(l) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. To remedy Respondent's discharge of Ira A. Evans, Randall Kirk, Fred Kirk, Danny Williams, Roger Fry, Wandal Atkins, Mike Shepherd, Bill Vance, and Terry Dillon, in violation of Section 8(a)(l) of the Act, we shall order that Respondent offer immediate and full reinstatement to them to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by payment to them of sums equal to the amounts they normally would have earned as wages from the date of their discharges to the date of Respondent's offers of reinstatement, less net earnings, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, gen- erally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).3 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Sherwood Coal Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Ira A. Evans, Randall Kirk, Fred Kirk, Danny Williams, Roger Fry, Wandal Atkins, Mike Shep- 3 In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRH No 11 (1980), Member Jenkins would aard interest on the backpay due based on the formula set forth therein 498 SttIRWO()D C()AL COMPANY herd, Bill Vance, and Terry Dillon are employees within the meaning of Section 2(3) of the Act. 3. By discharging said employees because of their protected concerted activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Sherwood Coal Company, Ethel, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because of their pro- tected concerted activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of tile Act: (a) Offer immediate and full reinstatement to Ira A. Evans, Randall Kirk, Fred Kirk, Danny Wil- liams, Roger Fry, Wandal Atkins, Mike Shepherd, Bill Vance, and Terry Dillon to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole with interest for any loss of earnings in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at the Ethel, West Virginia, facility copies of the attached notice marked "Appendix." 4 4 In the event that this Order is enforced hb a Judgment of Ulnited States Court of Appeals. the words i he notice reading "Polsted hby Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondcrint to insure that said notices are not altered. defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ()rdlr cof The Nliorl I aIhr Relations I loard" sill r.d To,cd Pur, - all to . JIletnilteri[ l'h i he icd Stale> Coull of ppeal, Yiifir tilg an t)rdt.r A I he NmiIonal abor Rela.tiom IB.ard APPENDIX NoTricui TO EmPI OYvlES PosTEi) BY ORDER 01F TIll NATIONA. LABOR Rlil.ATIONS BOARD An Agency of the United States Government Wt wi I NOI discharge employees because they engage in protected concerted activities. W'I: wii I NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. Wt. wil.. offer immediate and full reinstate- ment to Ira A. Evans, Randall Kirk, Fred Kirk, Danny Williams, Roger Fry, Wandal Atkins, Mike Shepherd, Bill Vance. and Terry Dillon to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole, with interest, for any loss of earnings suffered as a result of being discharged. SHERWOOD COAL COMPANY 499