Big Truck Coal Co.

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 951 (N.L.R.B. 1990)

951
300 NLRB No. 132
BIG TRACK COAL CO.
1 There is a preface to par. 11 of the complaint, but we view the complaint
to allege as violations only the specific actions set out in pars. 11(a) and (b).
Big Track Coal Co., Inc. and United Mine Workers
of America, District 28. Case 11–CA–13415
December 21, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by the Union on July 17, 1989,
as amended on September 8, 1989, the General Coun-
sel of the National Labor Relations Board issued a
complaint December 12, 1989, and an erratum to the
complaint December 18, 1989, against Big Track Coal
Co., Inc., the Respondent, alleging that it has violated
Section 8(a)(1) and (5) of the National Labor Relations
Act.
Specifically, the complaint alleges that since on or
about March 1, 1989, the Respondent unilaterally, and
without notice to or bargaining with the Union, has
failed and refused to pay employees on layoff status
various accrued benefits including vacation days, per-
sonal days, sick days, and floating and graduated vaca-
tion days, and to continue health and life insurance
coverage for these employees.1
On December 29, 1989, the Respondent filed an an-
swer admitting in part and denying in part the allega-
tions of the complaint, and raising various affirmative
defenses. Thereafter, on May 7 and 11, 1990, respec-
tively, the Respondent filed an amended answer and a
letter amending its amended answer in which the Re-
spondent admitted the factual allegations of the com-
plaint, except for claiming that it paid five named em-
ployees 5 days’ vacation pay and the laid-off employ-
ees 1 month of health benefits. The Respondent, how-
ever, did not admit the commission of any unfair labor
practices.
On May 29, 1990, the General Counsel filed a Mo-
tion for Summary Judgment. On May 31, 1990, 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 an oppo-
sition to the Motion for Summary Judgment.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
The General Counsel in his Motion for Summary
Judgment notes that the Respondent, through its var-
ious answers, has admitted all the factual allegations of
the complaint. In view of the admissions the Respond-
ent has made, the General Counsel claims that the
complaint allegations stand uncontroverted. The Gen-
eral Counsel emphasizes, citing Cisco Trucking Co.,
289 NLRB 1399 (1988), Benjamin F. Wininger & Son,
286 NLRB 1177 (1987), and Bay Area Sealers, 251
NLRB 89, 90 (1980), that the Board has long held that
an employer is required to abide by contractual terms
and conditions of employment even where, as here,
those terms and conditions are established by a collec-
tive-bargaining agreement that has expired, unless the
parties have bargained in good faith to impasse over
a successor agreement. Because the Respondent in this
case has offered no defense to its conduct in failing to
provide, as required by the expired collective-bar-
gaining agreement, accrued benefit days and health and
life insurance coverage for its laid-off employees, the
General Counsel urges the Board to grant the Motion
for Summary Judgment and find that the Respondent
violated Section 8(a)(1) and (5) of the Act as alleged
in the complaint.
In its opposition, the Respondent asserts that it
closed the coal mine where the unit employees worked
and that the unit employees’ last day of employment
was March 1, 1989. The Respondent notes that it had
11 employees at the time its equipment was removed
from the minesite and it terminated operations. The
Respondent claims that it thereafter fulfilled its duty to
bargain by consistently offering and remaining willing
to bargain over the effects of the decision to close the
mine. The Respondent argues that its willingness to
bargain in this regard raises issues that are not proper
for summary judgment. Although noting ‘‘the fact that
little actual bargaining took place,’’ the Respondent
contends that the parties’ failure to reach an agreement
is more indicative of an impasse than of a refusal to
bargain, violating the Act. The Respondent contends in
the alternative that the Union ‘‘may have waived its
right to bargain’’ by failing to accept the Respondent’s
offer to meet and bargain over the effects of the deci-
sion to close the mine. The Respondent also defends
against the complaint allegations on the ground that it
does not have sufficient funds to satisfy the laid-off
employees’ claims for accrued benefits and to continue
their health and life insurance coverage. The Respond-
ent further argues that it has paid accrued benefits to
some employees and that it provided 1 month of health
insurance benefits for the laid-off employees. In addi-
tion, the Respondent asserts that the laid-off employees
have found other employment and thus are no longer
qualified to receive extended benefits. Finally, the Re-
spondent claims that the Board should apply its defer-
ral policy to the Union’s charge here, because the mat-
ters encompassed by it are subject to the grievance-ar-
bitration procedure of the expired collective-bargaining
agreement.
We find no merit to the Respondent’s assertions. As
the General Counsel points out, it is well established
that:
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Respondent asserts that the Union ‘‘argues that [the Respondent] vio-
lated Section 8(a)(5) by refusing to bargain over the effects of the closure and
by failing to pay its laid off employees various benefits and to continue health
and life insurance coverage.’’ Contrary to the Respondent, the complaint does
not allege an effects bargaining violation and we do not pass on that issue
here.
3 See generally Allis-Chalmers Corp., 286 NLRB 219, 222–223 (1987).
4 See American Commercial Lines, 296 NLRB 622, 623 (1989).
An employer has a statutory obligation to con-
tinue to follow the terms and conditions of em-
ployment governing the employer-employee rela-
tionship in an expired contract until it has bar-
gained to impasse with the collective-bargaining
representative of its employees, unless the union
fails to timely request bargaining following the
employer’s notice of an intention to modify.
[Cisco Trucking Co., supra at 1400.]
Thus, although the parties’ collective-bargaining agree-
ment expired on January 31, 1988, the Respondent had
a continuing obligation, in the absence of impasse, to
abide by the terms and conditions of employment set
out there. The Respondent in this case has admitted the
complaint allegations that since on or about March 1,
1989, it made various unilateral changes. These were
changes in its employees’ terms and conditions of em-
ployment. The Respondent contends, however, that it
fulfilled its bargaining obligation by repeatedly offer-
ing to bargain over the effects of its decision to close
the mine which it claims occurred on March 1, 1989.
Yet, the documentary evidence the Respondent has
presented on this subject establishes merely that, over
4 months after its admitted refusal to bargain, the Re-
spondent indicated that it was ‘‘willing to bargain over
the effects of the shutdown of the mining facility.’’ It
is clear that an earlier letter the Respondent relies on,
dated June 29, 1989, from the Union’s attorney to the
Respondent’s attorney ‘‘concerning deficiencies in the
agreed settlement’’ also postdated the alleged unfair
labor practices and thus does not establish a valid de-
fense to the complaint allegations. Further, the latter
document has no probative value here in any event be-
cause it fails to reference specifically these parties or
the instant dispute. In these circumstances, we con-
clude that any decision the Respondent may have
made to close the mine has no bearing on the sub-
stantive issues raised here because the Respondent has
failed to demonstrate, as it claims, that the decision
was made either before or contemporaneously with the
unilateral changes it made on March 1, 1989.2
Similarly, we reject the Respondent’s impasse de-
fense because the Respondent does not contend that
the parties engaged in any effects bargaining until
months after the above violations commenced. For this
reason, the parties could not have reached a bona fide
impasse in this case at the time the Respondent en-
gaged in its unilateral actions. Further, it is clear that
the Union could not have waived its bargaining rights
here because the Respondent has admitted in its an-
swers that the Union requested bargaining about the
general subjects involved in the complaint on which
violations are alleged.
Regarding the Respondent’s economic defense, we
stress that the Board repeatedly has found that an em-
ployer’s claim that it is financially unable to make re-
quired payments does not constitute a valid defense to
an allegation that an employer has unlawfully made
unilateral changes in employees’ terms and conditions
of employment.3 We also find that the Respondent’s
reliance on the Supreme Court’s decision in NLRB v.
Bildisco & Bildisco, 465 U.S. 513 (1984), is misplaced
here because the Respondent has failed to establish
that it filed a bankruptcy petition.
Finally, we conclude, contrary to the Respondent,
that it is not appropriate to defer the resolution of the
issues raised in this case to the parties’ arbitral proc-
ess. In Collyer Insulated Wire, 192 NLRB 837, 842
(1971), the Board found that the case was ‘‘eminently
well suited to resolution by arbitration’’ because ‘‘[t]he
contract and its meaning’’ were ‘‘at the center of [the]
dispute.’’ That is not the situation here, where the
meaning of the contract does not constitute any part of
the instant dispute, and the Respondent does not con-
tend otherwise.4 Accordingly, we conclude that the Re-
spondent has violated Section 8(a)(1) and (5) of the
Act by refusing to bargain with the Union regarding
the payment of various accrued benefit days to laid-off
employees and the continuation of health and life in-
surance coverage for these employees.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Virginia corporation, has an of-
fice and place of business in Clintwood, Virginia,
where it is engaged in the operation of a coal mine.
During the 12-month period preceding the issuance of
the complaint, which is a representative period, the Re-
spondent, in the course and conduct of its business op-
erations, sold and shipped from its Clintwood, Virginia
facility coal valued in excess of $50,000 directly to
Clinchfield Coal Company, a Virginia corporation with
an office and place of business in Lebanon, Virginia,
where it is engaged in the mining, transportation, and
sale of coal. During the 12-month period preceding the
issuance of the complaint, which is a representative pe-
riod, Clinchfield Coal Company, in the course and
conduct of its business operations, sold and shipped
from its Lebanon, Virginia facility products, goods,
and materials valued in excess of $50,000 directly to
points located outside the Commonwealth of Virginia.
We find that Clinchfield Coal Company is an employer
953BIG TRACK COAL CO.
5 Contrary to our dissenting colleague, we do not agree that the Respondent
created a genuine issue for hearing by its assertion, in its opposition to the
General Counsel’s Motion for Summary Judgment, that its coal mine ceased
operations on February 23, 1989, and that the last working day for employees
was March 1, 1989. As explained above, the Respondent has admitted com-
plaint allegations that since on or about March 1, 1989, it had unilaterally, and
without notice to the Union, failed to pay laid-off employees various accrued
benefits. This states a violation of the Act regardless whether the Respondent
actually did terminate all operations and employees as of March 1 and regard-
less what it did or did not do with respect to bargaining concerning the ‘‘ef-
fects’’ of the closure. Discontinuance of already accrued benefits cannot prop-
erly be deemed an effect of the closure. The Respondent’s assertions con-
cerning a cessation of operations may, if proven, have an effect on the make-
whole remedy for the employees, however. We shall leave that issue to the
compliance stage of the proceeding.
We also leave to compliance the Respondent’s claims that it has paid five
named employees 5 days’ vacation pay and all the laid-off employees 1 month
of health benefits, and that the laid-off employees are no longer entitled to
receive health and life insurance benefits because they have found other em-
ployment providing for them.
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. We further 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
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since on or about January 7, 1985, the Respondent
has recognized the Union as the exclusive collective-
bargaining representative of employees in the fol-
lowing appropriate unit:
All employees employed in the mining of coal at
the Respondent’s Clintwood, Virginia, coal mine,
excluding office clerical employees, guards and
supervisors as defined in the Act.
The Respondent and the Union have been parties to a
collective-bargaining agreement, which was effective
by its terms from October 1, 1984, until January 31,
1988.
Commencing about February 23, 1989, and con-
tinuing to date, the Union has requested the Respond-
ent to bargain collectively with respect to rate of pay,
wages, and hours of employment as the exclusive rep-
resentative of the unit employees. Since about March
1, 1989, the Respondent unilaterally and without notice
to or bargaining with the Union has failed and refused
to pay its laid-off employees accrued benefits, includ-
ing vacation days, personal days, sick days, and float-
ing and graduated vacation days, and to continue
health and life insurance coverage for these employees.
We find that by the acts and conduct described
above the Respondent has failed and refused to bargain
collectively in good faith with the Union. The Re-
spondent thereby has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the
Act.
CONCLUSION OF LAW
By its unlawful unilateral changes in failing and re-
fusing to pay its laid-off employees accrued benefits
including vacation days, personal days, sick days, and
floating and graduated vacation days, and to continue
health and life insurance coverage for these employees,
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and (5) 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 de-
signed to effectuate the policies of the Act. We shall
order the Respondent to pay its laid-off employees ac-
crued benefits, including vacation days, personal days,
sick days, and floating and graduated vacation days,
and to continue health and life insurance coverage for
these employees and make them whole for any ex-
penses they may have incurred as the result of the Re-
spondent’s failure to make these insurance payments in
the manner prescribed in Kraft Plumbing & Heating,
252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), with interest as provided for in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).5 In
view of the Respondent’s apparent cessation of oper-
ations at the mine where the unit employees worked,
we shall require, in addition to the usual notice post-
ing, that the Respondent mail copies of the notice to
all unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Big Track Coal Co., Inc., Clintwood, Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) By unilaterally failing and refusing to pay em-
ployees on layoff status various accrued benefits, in-
cluding vacation days, personal days, sick days, and
floating and graduated vacation days, and to continue
health and life insurance coverage for these employees
in the following appropriate unit:
All employees employed in the mining of coal at
the Respondent’s Clintwood, Virginia, coal mine,
excluding office clerical employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the Union
as the exclusive representative of the unit employees
with respect to the payment to laid-off employees of
accrued benefits, including vacation days, personal
days, sick days, and floating and graduated vacation
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
1 There is no allegation that the Respondent failed to engage in bargaining
about the effects of any such closure.
days, and the continuation of health and life insurance
coverage for these employees.
(b) Pay its laid-off employees accrued vacation ben-
efits, including vacation days, personal days, sick days,
and floating and graduated vacation days in the manner
set forth in the remedy section of this decision.
(c) Restore health and life insurance coverage for its
laid-off employees and make these employees whole
for any losses they may have incurred as the result of
the Respondent’s failure and refusal to make these in-
surance payments on their behalf.
(d) Post at its facility in Clintwood, Virginia, copies
of the attached notice marked ‘‘Appendix.’’6 Copies of
the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Mail a copy of the notice to all employees em-
ployed by the Respondent in the appropriate unit. Such
notice shall be mailed to the last known address of
each employee.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER CRACRAFT, dissenting.
Contrary to my colleagues, I would deny the Gen-
eral Counsel’s Motion for Summary Judgment because
the Respondent’s opposition to the motion indicates on
its face that a genuine issue for hearing ‘‘may’’ exist.
See Rules and Regulations, Section 102.24(b) (revised
effective Oct. 16, 1989).
The complaint alleges that since on or about March
1, 1989, the Respondent has violated Section 8(a)(5)
and (1) of the Act by (a) unilaterally and without no-
tice to or bargaining with the Union failing and refus-
ing to pay its laid-off employees various accrued bene-
fits established in the collective-bargaining agreement
that had expired on January 31, 1988, and (b) by also
unilaterally and without notice to or bargaining with
the Union failing and refusing to continue health and
life insurance coverage, also established in the expired
collective-bargaining agreement, for its laid-off em-
ployees.
In its answer to the complaint, the Respondent ad-
mits, with certain qualifications, that it engaged in the
above conduct, but denies, without elaboration, that it
violated the Act by doing so. In its opposition to the
motion, the Respondent asserts that it has closed the
instant coal mine and that ‘‘the last working day for
the coal mine was February 23, 1989, and the last day
of work for the employees was March 1, 1989.’’
If the Respondent closed its business on or about
March 1, 1989, as it indicates in its opposition that it
did, then its unilateral discontinuance of the above
benefits and coverages might not have been in viola-
tion of the Act.1 Thus, the complaint alleges in perti-
nent part that ‘‘Since on or about March 1, 1989, Re-
spondent . . . failed and refused to pay its laid off em-
ployees various accrued benefits . . . and at all times
thereafter . . . failed to and refused to continue health
and life insurance coverage for its laid off employ-
ees.’’ To the extent that the complaint may be alleging
that various benefits have continued to accrue since on
or about March 1, 1989, then the question of whether
the Respondent was no longer in business after that
date is material to a resolution of any such allegation.
But even beyond that, the complaint clearly alleges a
failure by the Respondent at all times since March 1,
1989, to continue health and insurance coverage for
‘‘laid off’’ employees. Again, the question of whether
the Respondent was no longer a business after that
date is material to a resolution of that allegation. Ac-
cordingly, the factual questions of whether and when
the Respondent closed its business are material to the
resolution of the complaint allegations and present
genuine issues for hearing. Under these circumstances,
I would not grant the Motion for Summary Judgment.
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 or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally fail and refuse to pay em-
ployees on layoff status accrued benefits, including va-
cation days, personal days, sick days, and floating and
graduated vacation days, and to continue health and
life insurance coverage for laid-off employees in the
following appropriate unit:
All employees employed in the mining of coal at
the Respondent’s Clintwood, Virginia, coal mine,
excluding office clerical employees, guards and
supervisors as defined in the Act.
955BIG TRACK COAL CO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain collectively with
United Mine Workers of America, District 28 as the
exclusive representative of the unit employees with re-
spect to the payment to laid-off employees of accrued
benefits, including vacation days, personal days, sick
days, and floating and graduated vacation days, and the
continuation of health and life insurance coverage for
these employees.
WE WILL pay our laid-off employees accrued bene-
fits, including vacation days, personal days, sick days,
and floating and graduated vacation days, with interest.
WE WILL restore health and life insurance coverage
for our laid-off employees and make these employees
whole for any losses they may have incurred as the re-
sult of our failure and refusal to make these insurance
payments on their behalf, with interest.
BIG TRACK COAL CO., INC.