COBALT COAL LTD., WESTCHESTER COAL, L.P., AND COBALT COAL CORP. MINING INC., A SINGLE EMPLOYER

National Labor Relations Board - Board Decisions

Dec 14, 2015

363 NLRB No. 64 (N.L.R.B. 2015)

363 NLRB No. 64
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board, Washington, D.C. 20570, of
any typographical or other formal errors so that corrections can be includ-
ed in the bound volumes.
Cobalt Coal Ltd., Westchester Coal, L.P., and Cobalt
Coal Corp. Mining Inc., a Single Employer and
United Mine Workers of America, AFL–CIO.
Case 09–CA–112146
December 14, 2015
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the compliance specification.
On May 2, 2014, the National Labor Relations Board
issued an unpublished Order adopting the findings and
conclusions of Administrative Law Judge Paul Bogas’
Decision, issued on March 28, 2014,1 finding that the
Respondent, Cobalt Coal Ltd., Westchester Coal, L.P.,
and Cobalt Coal Corp. Mining Inc., a single employer,
violated Section 8(a)(5), (3), and (1) of the Act by, inter
alia, unlawfully contracting out bargaining unit work
without notice to or bargaining with the Union, rather
than recalling bargaining unit employees, because the
employees had engaged in protected concerted and union
activities. The Board’s Order required the Respondent to
take the action set forth in the Administrative Law
Judge’s recommended Order, directing the Respondent
to offer reinstatement to 23 former employees and to
make those employees whole for any loss of earnings
they suffered as a result of the Respondent’s unlawful
conduct. 2 On July 21, 2014, the United States Court of
Appeals for the Fourth Circuit entered its judgment en-
forcing the Board’s Order in full.3
A controversy having arisen over the amount of
backpay due the discriminatees, on September 2, 2015,
the Regional Director issued a compliance specification
and notice of hearing alleging the amounts due under the
Board’s Order, and notifying the Respondent that it must
file a timely answer complying with the Board’s Rules
and Regulations. Although properly served with a copy
of the compliance specification, the Respondent failed to
file an answer.

1 JD–15–14.
2 The administrative law judge’s decision recommended that the
Respondent offer reinstatement to 23 former employees, including
Bryan Harlow. However, the compliance specification notes that no
backpay or expenses are claimed for Harlow because of his unavailabil-
ity for work during the backpay period.
3 No. 14–1604.
By letter dated September 24, 2015, the Region ad-
vised the Respondent that no answer to the compliance
specification had been received, and that unless an an-
swer was filed by October 5, 2015, a motion for default
judgment would be filed. Nevertheless, the Respondent
failed to file an answer.
On October 7, 2015, the General Counsel filed with
the Board a Motion for Default Judgment, with exhibits
attached. On October 8, 2015, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.4 The
Respondent again filed no response. The allegations in
the motion and the compliance specification are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on the Motion for Default Judgment
Section 102.56(a) of the Board’s Rules and Regula-
tions provides that a respondent shall file an answer
within 21 days from service of a compliance specifica-
tion. Section 102.56(c) provides that if the respondent
fails to file any answer to the specification within the
time prescribed by this section, the Board may, either
with or without taking evidence in support of the allega-
tions of the specification and without further notice to the
respondent, find the specification to be true and enter
such order as may be appropriate.
According to the uncontroverted allegations of the mo-
tion for default judgment, the Respondent, despite having
been advised of the filing requirements, has failed to file
an answer to the compliance specification. In the ab-
sence of good cause for the Respondent’s failure to file
an answer, we deem the allegations in the compliance
specification to be admitted as true, and grant the Gen-
eral Counsel’s Motion for Default Judgment. According-
ly, we conclude that the net backpay due the
discriminatees is as stated in the compliance specifica-
tion,5 and we will order the Respondent to pay those
amounts, plus additional backpay that may accrue in the
event mining operations resume at the Westchester
mine,6 plus interest accrued to the date of payment.

4 On November 5, 2015, the Board resent the Order Transferring
Proceeding to the Board and Notice to Show Cause to one of the par-
ties, upon receiving a corrected address.
5 A review of the calculations in the appendices to the compliance
specification revealed that the backpay amounts listed in par. 16 of the
compliance specification for Raymond Aragon, Lance Barbour, and
Fred Coleman were incorrect. We have corrected those amounts as
listed below in the Order.
6 The compliance specification provides that the backpay period for
all the discriminatees begins on October 14, 2013, the date the Re-
spondent unlawfully refused to recall the discriminatees to work, and
continues until at least May 14, 2014, when operations at the Westches-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The National Labor Relations Board orders that the
Respondent, Cobalt Coal Ltd., Westchester Coal, L.P.,
and Cobalt Coal Corp. Mining Inc., a single employer,
Hensley, West Virginia, its officers, agents, successors,
and assigns, shall make whole the following
discriminatees by paying them the amounts following
their names, plus additional backpay that may accrue in
the event mining operations resume at the Westchester
mine, plus interest accrued to the date of payment, as
prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as set forth in Kentucky River Medical
Center, 356 NLRB No. 8 (2010), minus tax withholdings
required by Federal and State laws:7
William Addair – $24,306.49
Raymond Aragon – 47,906.00
Lance Barbour – 21,198.62
Phillip Barker – 36,332.43
Daniel Beavers – 23,669.65
Bruce Blankenship – 6,384.00
James Bowles – 19,742.47
Eddie Branch, Sr. – 45,380.34
Lonnie Christian, II – 19,655.65
Fred Coleman – 25,794.26
William Hyden – 14,909.27
Wendell Kennedy – 28,318.50
Brandon Lovell – 24,248.45
James Mitchem – 16,583.61
William Mullins – 25,071.90
Joseph Pack – 25,741.00
Johnny Simms – 10,729.78
Steven Simpson – 20,239.28
Daniel Smith – 32,634.09
Mickle Thomas – 4,790.51
Bobby Thompson – 20,881.46
Richard Toler – 7,778.02
TOTAL AMOUNT DUE: $502,295.78

ter mine were suspended due to a Mine Safety and Health Administra-
tion (MSHA) violation. The compliance specification further provides
that the backpay period for the discriminatees may continue in the
event that mining operations resume at the Westchester mine.
7 As set forth in the compliance specification, the Respondent is also
liable for any adverse tax consequences for any discriminatee receiving
a lump-sum backpay award. Although the compliance specification
calculated the adverse tax consequences, that amount may need to be
updated to reflect the actual date of payment.
Dated, Washington, D.C., December 14, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD