C & O Mining Corp.

National Labor Relations Board - Board Decisions

Apr 1, 1992

306 N.L.R.B. 1070 (N.L.R.B. 1992)

1070
306 NLRB No. 216
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 296 NLRB No. 114 (not reported in Board volumes).
2 The General Counsel states in the backpay specification that his
calculations are based on information obtained by the West Virginia
Department of Labor, Wage and Hour Division which has disbursed
partial wage and medical benefits to the Respondent’s employees
pursuant to a wage bond. Additional information was also obtained
from the Charging Party.
C & O Mining Corporation and District 29, United
Mine Workers of America. Case 9–CA–26368
April 1, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND DEVANEY AND
RAUDABAUGH
On September 29, 1989, the National Labor Rela-
tions Board issued a Decision and Order in this pro-
ceeding1 directing the Respondent to, inter alia, make
whole all the bargaining unit employees working in or
about the Respondent’s Keystone, McDowell County,
West Virginia mine for any loss of earnings or benefits
suffered as a result of the Respondent’s failure since
November 22, 1988, to adhere to the terms of the col-
lective-bargaining agreement between the parties, in
violation of Section 8(a)(1) and (5) of the National
Labor Relations Act. On June 29, 1990, the United
States Court of Appeals for the Fourth Circuit enforced
the Board’s Order.
A controversy having arisen over the amounts due
under the terms of the Board’s Order, the Acting Re-
gional Director for Region 9 issued a compliance spec-
ification and notice of hearing on September 26, 1991.
The Respondent filed an answer to the compliance
specification.
On January 22, 1992, counsel for the General Coun-
sel filed with the Board a Motion for Summary Judg-
ment and Memorandum in Support. Counsel for the
General Counsel contends that the Respondent’s an-
swer fails to comport with the requirements of speci-
ficity and particularized pleadings within the meaning
of Section 102.56(b) and (c) of the Board’s Rules and
Regulations. Counsel for the General Counsel requests
that the Board: (1) grant the Motion for Summary
Judgment; (2) strike the defenses raised in the Re-
spondent’s answer; (3) find all the allegations in the
compliance specification to be true; and (4) issue a de-
cision including findings of fact and conclusions of
law and an appropriate backpay order.
On January 28, 1992, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel’s motion
should not be granted. The Respondent did not file a
response to the Notice to Show Cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer to the compliance specification the Re-
spondent contends that it lacked sufficient time to de-
termine if the computations with relation to backpay
and related matters as set forth in the compliance spec-
ification were accurate and the pay periods and
amounts correct. The Respondent contends that it has
not had adequate time to confirm the backpay and ben-
efits claim as calculated by the West Virginia Depart-
ment of Labor, Wage and Hour Division,2 and requests
that the background information be provided in order
to make the required calculations and reach a conclu-
sion regarding the truthfulness of the allegations.
Section 102.56(b) and (c) of the Board’s Rules and
Regulations states in pertinent part:
(b) . . . As to all matters within the knowledge
of the respondent, including but not limited to the
various factors entering into the computation of
gross backpay, a general denial shall not suffice.
As to such matters, if the respondent disputes ei-
ther the accuracy of the figures in the specifica-
tion or the premises on which they are based, [he]
shall specifically state the basis for such disagree-
ment, setting forth in detail the respondent’s posi-
tion as to the applicable premises and furnishing
the appropriate supporting figures.
(c) . . . If the respondent files an answer to the
specification but fails to deny any allegation of
the specification in the manner required by para-
graph (b) of this section, and the failure to deny
is not adequately explained, such allegation shall
be deemed to be admitted to be true, and may be
so found by the Board without the taking of evi-
dence supporting such allegation, and the respond-
ent shall be precluded from introducing any evi-
dence controverting the allegation.
The Respondent’s answer to the compliance speci-
fication fails to meet the requirements of Section
102.56(b) and (c) of the Board’s Rules and Regula-
tions. The Respondent’s answer fails to specifically
deny or explain any of the allegations in the compli-
ance specification. The Respondent limits itself to al-
leging that it has not had sufficient time to obtain in-
formation to confirm the benefits as calculated by the
West Virginia Department of Labor, and requests that
the background information be provided in order to
make the required calculations. However, the Respond-
ent has knowledge of the provisions of the collective-
bargaining agreement and has not offered information
which might in any way contravene or dispute the alle-
gations in the compliance specification. Nor has it ex-
plained why it has not had sufficient time to respond.
The Respondent has failed to present an alternative
backpay plan based on the provisions of said agree-
1071C & O MINING CORP.
3 In light of this disposition, we find it unnecessary to pass on the
General Counsel’s motion to strike the Respondent’s answer. 4 283 NLRB 1173 (1987).
ment. In view of the Respondent’s failure to specifi-
cally state the basis for its disagreement with the alle-
gations contained in the specification we accept those
allegations as true. Accordingly, we grant the General
Counsel’s Motion for Summary Judgment,3 and con-
clude that the total amounts due are as stated in the
compliance specification and we shall order payment
of said amounts by the Respondent.
ORDER
The National Labor Relations Board orders that the
Respondent, C & O Mining Corporation, Keystone,
West Virginia, its officers, agents, successors, and as-
signs, shall make whole the discriminatees named
below by paying the amounts following their names,
plus interest accrued to the date as prescribed by New
Horizons for the Retarded,4 minus tax withholdings re-
quired by Federal and state laws.
NET BACKPAY
Name (Fringe Ben-efits)
Medical Ben-
efits Total
Johnny Brown $2,089.65 $ 371.51 $2,461.16
David Denton 1,673.55 67.17 1,740.72
David Hagerman 554.36 249.50 803.86
Harlin Hagerman 563.55 - 0 - 563.55
Robert E. Hill 700.51 - 0 - 700.51
Steven A. O’del 1,241.34 4,483.69 5,725.03
Bernard Simpson 1,734.34 - 0 - 1,734.34
Ira Simpson 1,771.53 - 0 - 1,771.53
Claude Smith 1,241.34 - 0 - 1,241.34
Anthony Taylor 1,711.84 76.00 1,787.84
Total: $18,529.88