Apple Jack Mining Corp.

National Labor Relations Board - Board Decisions

May 26, 1989

294 N.L.R.B. 293 (N.L.R.B. 1989)

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.