Croley Coal Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1984

269 N.L.R.B. 182 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Croley Coal Corporation and South Harlan Coal
Co., Inc. and Southern Labor Union, Local 206
and Stanley Collins. Cases 9-CA-16942 and 9-
CA- 16998
15 March 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 3 August 1982 the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding' in which it directed, inter alia,
that Croley Coal Corporation (herein Respondent
Croley), its officers, agents, successors, and assigns,
offer immediate and full reinstatement of certain
employees and to make them whole for any loss of
pay they may have suffered resulting from Croley's
unfair labor practices against them in violation of
Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended. On 31 March 1983 the
United States Court of Appeals for the Sixth Cir-
cuit issued its judgment enforcing in full the rein-
statement and backpay provisions of the Board
Order. 2
On 18 August 1983 the Regional Director for
Region 9 issued a backpay specification and notice
of hearing. In addition to alleging the amount of
backpay due, the specification named South Harlan
Coal Co., Inc. (herein South Harlan) as an alleged
successor and/or joint employer of Respondent
Croley and therefore jointly and severally liable
with Croley for the backpay due. Respondent
Croley and its attorney were duly served with the
specification. Service was made on Ray Jackson
and Rudy Yessin, Esq., for South Harlan. Neither
the Respondent nor South Harlan filed an answer
to the allegations in the specification. On 13 Sep-
tember 1983 the General Counsel issued an order
correcting backpay specification and notice of
hearing which rescheduled the hearing for 1 hour
earlier. It was served on Croley, its attorney, South
Harlan and Rudy Yessin.
On 29 September 1983 counsel for the General
Counsel filed with the Board a motion to transfer
proceeding to the Board and a Motion for Summa-
ry Judgment. On 6 October 1983 the Board issued
an order transferring proceeding to the Board and
a Notice to Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
I Since no exceptions were filed, the judge's decision automatically
became the decision of the Board pursuant to Sec. 102.48(a) of the
Board's Rules and Regulations. (Not reported in Board volumes.)
2 NLRB v. Croley Coal Corp., enfd. mem. 709 F.2d 1506 (6th Cir.
1983).
269 NLRB No. 33
granted. The Notice to Show Cause was duly
served on the Respondent's attorney of record. It
was also served on Rudy Yessin but not on Mr.
Jackson or any other officer or employee of South
Harlan.
Again, Respondent Croley failed to reply. South
Harlan, however, filed a timely response to which
it appended its answer to the backpay specification
denying that it is a successor and/or joint employer
of Croley.
Upon the entire record in this proceeding, the
Board makes the following
Ruling on the Motion for Summary Judgment
Section 102.54(c) of the Board's Rules and Regu-
lations provides in relevant part with respect to a
backpay specification:
(a) . . . The respondent shall, within 15 days
from the service of the specification, if any,
file an answer thereto.
(c) . .. .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 sup-
port of the allegations of the specification and
without notice to the respondent, find the
specification to be true and enter such order as
may be appropriate.
The backpay specification served on Respondent
Croley and South Harlan on 18 August 1983 spe-
cifically states that the Respondent and South
Harlan shall, within 15 days of the date of the
specification, file an answer with the Regional Di-
rector of Region 9. If the answer fails to deny the
allegations in the specification in the manner re-
quired by the Board's Rules and Regulations and
this failure is not adequately explained, such allega-
tions shall be deemed admitted as true and Re-
spondent Croley and South Harlan shall be pre-
cluded from introducing any evidence controvert-
ing them.
Since Respondent Croley did not file a timely
answer and offered no explanation for its failure to
do so, the Board, pursuant to the above rules, finds
the allegations in the specification fixing the
amount of backpay owed the discriminatees to be
true. Accordingly, we grant the General Counsel's
Motion for Summary Judgment as to Croley and
order that payment be made by it to each discri-
minatee as set forth below.
In its response to the Notice to Show Cause,
South Harlan alleges that the backpay specification
was erroneously sent to "Ray" Jackson, rather than
Roy Dan Jackson. Since South Harlan assertedly
182
CROLEY COAL CORP.
had no knowledge of the underlying unfair labor
practice proceeding against Croley, Jackson's em-
ployees assumed the service was in error.3 South
Harlan also contends that it never received the
order correcting backpay specification. Rather, as
the affidavits of service demonstrate, the General
Counsel repeatedly sent documents concerning the
backpay proceeding to Rudy Yessin, Esq. who had
never entered an appearance for South Harlan. In
addition, Yessin states by affidavit that he informed
the field examiner from Region 9 in early 1983 that
he could not represent South Harlan because he
represents James Croley, Respondent Croley's
president.
South Harlan's attorney, Otis Doan, alleges that
as attorney for South Harlan he was notified on I
October 1983 that a hearing had been scheduled
for 11 October and that South Harlan could be
liable for the actions of Respondent Croley. He im-
mediately telephoned counsel for the General
Counsel who explained that the pleadings had been
sent to Rudy Yessin. After Doan had put himself in
contact with Rudy Yessin, Yessin informed him
that the Notice to Show Cause had issued. South
Harlan thereupon promptly complied with the
Notice to Show Cause, appending to its response
an answer to the backpay specification.
In light of all these circumstances, we find that
no purpose would be served by denying South
Harlan an opportunity to present evidence at a
hearing on the issue of its derivative liability. We
therefore deny the General Counsel's Motion for
Summary Judgment as to South Harlan and direct
3 Counsel for the General Counsel does not allege in his motion that
he further made South Harlan's representatives aware by followup letter
or telephone call of its obligation to file an answer and the consequences
of a failure to do so.
that South Harlan's answer to the backpay specifi-
cation be accepted.
ORDER
The National Labor Relations Board hereby
orders that the Respondent Croley Coal Corpora-
tion, Harlan, Kentucky, its officers, agents, succes-
sors, and assigns, shall make whole each of the dis-
criminatees named below by payment to each of
them the amount set forth next to his name, plus
interest computed according to Florida Steel Corp.,
231 NLRB 651 (1977), less any lawful tax with-
holdings. 4
Hirman Daniel, Jr. $ 3,393.57
Clifford Lee 11,514.48
Larry Collins 16,729.48
James Miller 12,091.77
Stanley Collins 3,070.88
Stephen Alan Vaughn
Charles Howard
Joe Watkins
David Caldwell
Phillip Daniel
Steve Farmer
Jimmy Crawford
Robert Nix
Donnie Green
Roger Colinger
10,222.11
8,324.88
3,699.20
29,077.84
6,878.84
2,124.00
2,851.49
846.56
1,932.00
3,539.00
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for Region 9
for the purpose of arranging for a hearing before
an administrative law judge on the issue of the li-
ability of South Harlan Coal Company as a succes-
sor and/or joint employer of Respondent Croley.
I See generally Isis Plumbing Co., 138 NLRB 716 (1962).
183