COBALT COAL CORP. MINING, INC.

National Labor Relations Board - Board Decisions

May 24, 2013

359 NLRB No. 123 (N.L.R.B. 2013)

359 NLRB No. 123
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cobalt Coal Corp. Mining, Inc. and United Mine
Workers of America, AFL–CIO. Cases 09–
CA–092229, 09–CA–095354, and 09–CA–
096073
May 24, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks a default judgment
in this case on the ground that Cobalt Coal Corp. Mining,
Inc. (the Respondent) has failed to file an answer to the
order consolidating cases, consolidated complaint, com-
pliance specification, and notice of hearing. Upon a
charge and first and second amended charges filed by
United Mine Workers of America, AFL–CIO (the Union)
in Case 09–CA–092229 on October 29 and December 7,
2012, and January 29, 2013, respectively; a charge and
amended charge filed in Case 09–CA–095354 on De-
cember 20, 2012, and January 29, 2013, respectively; and
a charge filed in Case 09–CA–096073 on January 9,
2013, the Acting General Counsel issued an order con-
solidating cases, consolidated complaint, compliance
specification, and notice of hearing (consolidated com-
plaint and compliance specification) on February 25,
2013, against the Respondent. The Respondent failed to
file an answer.
On April 3, 2013, the Acting General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on April 4, 2013, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed within 21 days from service of the compliance
specification. In addition, the consolidated complaint
and compliance specification affirmatively stated that
unless an answer was received by March 11, 2013, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the consolidated complaint
and compliance specification are true.1 Further, the un-
disputed allegations in the Acting General Counsel’s
motion disclose that the Region, by letter dated March
19, 2013, notified the Respondent that unless an answer
was received by March 25, 2013, a motion for default
judgment would be filed. On March 26, 2013, the Re-
spondent, by its owner and president, Michael Crowder,
sent an email letter to the Region stating that it was in-
solvent and unable to afford counsel or file an answer.
By letter dated March 28, 2013, the Region informed the
Respondent that legal counsel was not required to file an
answer, and encouraged the Respondent to file an an-
swer. The Respondent did not reply to that letter or file
an answer.
Although the Board has shown some leniency toward
respondents who proceed without the benefit of counsel,
the Board has consistently held that pro se status alone
does not establish a good cause explanation for failing to
file an answer. See, e.g., Patrician Assisted Living Facil-
ity, 339 NLRB 1153, 1153 (2003); Sage Professional
Painting Co., 338 NLRB 1068, 1068 (2003). Here, the
Respondent never filed an answer and it offered no good
cause explanation for its failure to do so, despite being
reminded that its answer was due and told that counsel
was not necessary to file an answer.2
Accordingly, in the absence of good cause being
shown for the failure to file an answer, we grant the Act-
ing General Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times since about March 8, 2010, at
which time the Respondent commenced its operations,
and continuing to date, the Respondent has been a corpo-
ration with an office in Premier, West Virginia, and has
been engaged in the mining of coal at its facility in Hens-
ley, West Virginia.

1 Although the answer to the compliance specification was not due
as of this March 11 deadline, the Region subsequently provided the
Respondent with the required time to file an answer to the compliance
specification, as well as a further extension.
2 The consolidated complaint and compliance specification indicates
that the Respondent ceased operations on November 7, 2012. It is also
well established that a respondent’s cessation of operations does not
excuse it from filing an answer to a complaint or a compliance specifi-
cation. See, e.g., OK Toilet & Towel Supply, Inc., 339 NLRB 1100,
1100–1101 (2003); Dong-A Daily North America, 332 NLRB 15, 15–
16 (2000); Holt Plastering, Inc., 317 NLRB 451, 451 (1995) (respond-
ent was not excused from filing an answer to compliance specification,
even though the respondent notified the Board it had “ceased operations
and liquidated the plant facilities”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In conducting its operations during the 12-month peri-
od ending November 7, 2012, the Respondent sold and
shipped from its Hensley, West Virginia facility goods
valued in excess of $50,000 directly to Alpha Natural
Resources, Inc., which operates a coal preparation plant
located in the State of West Virginia, and is an enterprise
directly engaged in interstate commerce that shipped
goods valued in excess of $50,000 directly to points lo-
cated 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 organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Daniel Smith - Superintendant
JC Woolridge - Out-by Foreman
Clayton Van Roberts - Mine Foreman
The Respondent engaged in the following conduct:
1. About September 24, 2012, the Respondent, by JC
Woolridge, at its Hensley, West Virginia facility:
(a) By telling an employee that the Respondent knew
what the employees were doing about the Union, created
an impression among the Respondent’s employees that
their union activities were under surveillance by the Re-
spondent.
(b) Interrogated an employee about the employee’s
union activities.
2. About October 15, 2012, the Respondent, by Daniel
Smith, at its Hensley, West Virginia facility:
(a) By telling an employee that he knew which em-
ployees were the leaders of the Union, created an impres-
sion among its employees that their union activities were
under surveillance by the Respondent.
(b) Interrogated an employee about which employees
signed union authorization cards.
3. About October 25, 2012, the Respondent, by JC
Woolridge, at its Hensley, West Virginia facility, inter-
rogated an employee about employees’ involvement in a
petition supporting the Union.
4. About October 25, 2012, the Respondent, by Daniel
Smith, at its Hensley, West Virginia facility, interrogated
an employee about which employees were attempting to
form a union.
5. About November 1, 2012, the Respondent, by Dan-
iel Smith, at its Hensley, West Virginia facility:
(a) Threatened an employee that the Respondent
would shut down the mine if employees voted in the Un-
ion.
(b) Interrogated an employee about whether the em-
ployee signed a union card.
6. About November 7, 2012, the Respondent, by Dan-
iel Smith, at its Hensley, West Virginia facility:
(a) Interrogated an employee about how the employee
voted in the election.
(b) Interrogated employees about who voted for the
Union during the election.
(c) By telling employees that the Respondent knew
which employees did not vote for the Union, created an
impression among its employees that their union activi-
ties were under surveillance by the Respondent.
(d) Told employees that they were being sent home
prior to the completion of their work shift because the
employees voted in favor of the Union.
7. About November 7, 2012, the Respondent, by Clay-
ton Van Roberts, at its Hensley, West Virginia facility,
interrogated an employee about how the employees vot-
ed in the election.
8. Starting about October 22, 2012, the Respondent
refused to recall and/or assign work to its employee
Johnny Simms.
9. About November 7, 2012, the Respondent sent
home the following employees prior to the completion of
their work shift:
Eddie Branch
Bruce Blankenship
William Mullins
Fred Coleman
Danny Smith
10. The Respondent engaged in the conduct described
in paragraphs 8 and 9 because the named employees of
the Respondent formed, joined, or assisted the Union and
engaged in concerted activities, and to discourage em-
ployees from engaging in these activities.
CONCLUSIONS OF LAW
1. By the conduct described in paragraphs 1 through
7, the Respondent has been interfering with, restraining,
and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
2. By the conduct described in paragraphs 8 through
10, the Respondent has been discriminating in regard to
the hire or tenure or terms and conditions of employment
of its employees, thereby discouraging membership in a
labor organization in violation of Section 8(a)(3) and (1)
of the Act.
COBALT COAL CORP. MINING, INC. 3
3. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by refusing to recall and/or assign work to an em-
ployee and by sending employees home prior to the
completion of their work shift because the employees
formed, joined or assisted the Union and engaged in con-
certed activities, and to discourage employees from en-
gaging in these activities, we shall order the Respondent
to make whole Johnny Simms, Bruce Blankenship, Eddie
Branch, Fred Coleman, William Mullins, and Danny
Smith for any loss of earning and other benefits suffered
as a result of its discrimination against them by paying
them the amounts set forth in the compliance specifica-
tion, with interest accrued to the date of payment, as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB No. 8 (2010),
and minus tax withholdings required by Federal and
State laws.3
Additionally, in accordance with our recent decision in
Latino Express, 359 NLRB No. 44 (2012), we shall order
the Respondent to compensate Simms, Blankenship,
Branch, Coleman, Mullins, and Smith for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award and to file a report with the Social Security Ad-
ministration allocating the backpay award to the appro-
priate calendar quarters for these employees.
The Respondent shall also be required to remove from
its files any reference to the unlawful refusal to recall
and/or assign work to Simms and the unlawful sending
home of Blankenship, Branch, Coleman, Mullins, and
Smith prior to the completion of their work shift, and to
notify them in writing that this has been done and that
the refusal to recall and/or assign work and sending
home prior to the completion of their work shift will not
be used against them in any way.

3 As to the Respondent’s claim that it is insolvent, the Respondent’s
financial resources have no bearing on the question of the calculation of
gross backpay due to the discriminatees. What is relevant now is the
amount due, not the Respondent’s ability to pay. See Diversified En-
terprises, 358 NLRB No. 48, slip op. at 2 (2012). Therefore, the Re-
spondent’s financial situation is not a basis for denying the Acting
General Counsel’s motion. See E.L.C. Electric, 348 NLRB 301, 302
fn. 6 (2006).
Finally, in view of the fact that the Respondent ceased
operations on November 7, 2012, we shall order the Re-
spondent to mail a copy of the attached notice to the Un-
ion and to the last known addresses of its former em-
ployees who were employed at any time since September
24, 2013, in order to inform them of the outcome of this
proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Cobalt Coal Corp. Mining, Inc., Premier
and Hensley, West Virginia, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(b) Coercively interrogating employees about their or
their coworkers’ union activities, sympathies, or support.
(c) Threatening employees with closure of the mine if
they select the Union as their bargaining representative.
(d) Telling employees that they are being sent home
prior to the completion of their work shift because the
employees selected the Union as their bargaining repre-
sentative.
(e) Refusing to recall and/or assign work to employees
because the employees formed, joined, or assisted the
Union, or engaged in protected concerted activities, and
to discourage employees from engaging in these activi-
ties.
(f) Sending home employees prior to the completion of
their work shift because the employees formed, joined, or
assisted the Union, or engaged in protected concerted
activities, and to discourage employees from engaging in
these activities.
(g) In any like or related manner interfering with, re-
straining, 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) Make whole the following employees for any loss
of earnings or other benefits suffered as a result of the
discrimination against them, by paying them the amounts
opposite their names, plus interest accrued to the date of
payment and minus tax withholdings required by Federal
and State laws, as set forth in the remedy section of this
decision:
Johnny Simms $ 1600
Bruce Blankenship 120
Eddie Branch 130
Fred Coleman 104
William Mullins 100
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Danny Smith 130
TOTAL BACKPAY: $ 2184
(b) Compensate Simms, Blankenship, Branch, Cole-
man, Mullins, and Smith for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards, and
file a report with the Social Security Administration allo-
cating the backpay awards to the appropriate calendar
quarters for these employees.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
recall and/or assign work to Simms and the unlawful
sending home of Blankenship, Branch, Coleman, Mul-
lins, and Smith prior to the completion of their work
shift, and within 3 days thereafter, notify them in writing
that this has been done and to notify them in writing that
this has been done and that the refusal to recall and/or
assign work and sending home prior to the completion of
their work shift will not be used against them in any way.
(d) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”4 to the Union
and to all employees who were employed by the Re-
spondent at any time since September 24, 2012. In addi-
tion to physical mailing of paper notices, notices shall be
distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 24, 2013
Mark Gaston Pearce, Chairman
Richard F. Griffin, Jr. Member
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 Federal labor law and has ordered us to mail and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT create the impression among our em-
ployees that their union activities are under surveillance.
WE WILL NOT interrogate our employees about their or
their coworkers’ union activities, sympathies, or support.
WE WILL NOT threaten our employees with closure of
the mine if they select the Union as their bargaining rep-
resentative.
WE WILL NOT tell our employees that they are being
sent home prior to the completion of their work shift be-
cause the employees selected the Union as their bargain-
ing representative.
WE WILL NOT refuse to recall and/or assign work to our
employees because you formed, joined, or assisted the
Union, or engaged in protected concerted activities.
WE WILL NOT send our employees home prior to the
completion of their work shift because you formed,
joined, or assisted the Union, or engaged in protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make whole employees Johnny Simms,
Bruce Blankenship, Eddie Branch, Fred Coleman, Wil-
liam Mullins, and Danny Smith for any loss of earnings
and other benefits suffered as a result of our discrimina-
tion against them, by paying them the amount set forth in
the Board’s Order, plus interest accrued to the date of
payment and minus tax withholdings required by Federal
and State laws.
WE WILL compensate employees Johnny Simms, Bruce
Blankenship, Eddie Branch, Fred Coleman, William
Mullins, and Danny Smith for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
COBALT COAL CORP. MINING, INC. 5
and WE WILL file a report with the Social Security Ad-
ministration allocating the backpay awards to the appro-
priate calendar quarters for these employees.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to recall and/or assign work to Johnny Simms
and the unlawful sending home of Bruce Blankenship,
Eddie Branch, Fred Coleman, William Mullins, and
Danny Smith prior to the completion of their work shift,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the refusal to
recall and/or assign work and sending home prior to the
completion of their work shift will not be used against
them in any way.
COBALT COAL CORP. MINING, INC.