Dandy Mining, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1998

326 N.L.R.B. 84 (N.L.R.B. 1998)

326 NLRB No. 84
1
NOTICE: This opinion is subject to formal revision before publication in the
Board 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.
Dandy Mining, Inc. and Janet Holbrook, Trustee in
Bankruptcy and Local 5921, District 17, United
Mine Workers of America. Case 9-CA-36076
September 17, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Upon a charge filed by the Union on June 29, 1998,1
the Acting General Counsel of the National Labor Rela-
tions Board issued a complaint on July 13 against Dandy
Mining, Inc. and Janet Holbrook, Trustee in Bankruptcy
for Dandy Mining, Inc., the Respondent, alleging that it
has violated Section 8(a)(1) and (5) of the National La-
bor Relations Act. Although properly served copies of
the charge and complaint, the Respondent failed to file
an answer.
On August 12, the Acting General Counsel filed a
Motion for Summary Judgment with the Board. On
August 14, 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 no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board's Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated July 30, notified the Respondent that unless
an answer were received by August 5, a Motion for
Summary Judgment would be filed.
Although the Respondent is in bankruptcy, it is well
established that the institution of bankruptcy proceedings
does not deprive the Board of jurisdiction or authority to
entertain and process an unfair labor practice case to its
final disposition. Phoenix Co., 274 NLRB 995 (1985).
Board proceedings fall within the exception to the auto-
matic stay provisions for proceedings by a governmental
unit to enforce its police or regulatory powers. See id.,
and cases cited therein.

1 All subsequent dates are in 1998, unless stated otherwise.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting General
Counsel's Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDUICTION
At all material times, the Respondent, a corporation,
has been engaged in the mining of coal in Logan County,
West Virginia, near the town of Starit, West Virginia.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations, sold and shipped from its Logan County,
West Virginia facility goods valued in excess of $50,000
directly to enterprises located within the State of West
Virginia, each of which, in turn, sold and shipped from
their respective West Virginia facilities goods valued in
excess of $50,000 directly to points outside the State of
West Virginia. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 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
The employees of the Respondent described in Article
IA of the National Bituminous Coal Wage Agreement of
1993 constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
Since about January 20, 1997, the Union has been the
designated exclusive collective-bargaining representative
of the unit, and since then the Union has been recognized
as the representative by the Respondent. This recogni-
tion has been embodied in a collective-bargaining
agreement–the National Bituminous Coal Wage Agree-
ment of 1993–between certain coal operators and the
United Mine Workers of America on behalf of its dis-
tricts and locals, including the Union, effective from
January 20, 1997 through August 1, 1998, to which the
Respondent has agreed to be bound. Since about January
20, 1997, based on Section 9(a) of the Act, the Union has
been the exclusive collective-bargaining representative of
the unit.
Since about June 1, 1998, the Respondent has failed to
continue in effect all of the terms and conditions of the
National Bituminous Coal Wage Agreement of 1993 by
failing to provide appropriate medical insurance and to
pay the medical expenses of the unit employees. These
terms and conditions of employment are mandatory sub-
jects for the purposes of collective bargaining. The Re-
spondent engaged in this conduct without the Union’s
consent.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing to bargain collectively and in good
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
faith with the exclusive collective-bargaining representa-
tive of its employees within the meaning of Section 8(d)
of the Act in violation of Section 8(a)(1) and (5) of the
Act, and has thereby engaged in unfair labor practices
affecting 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 has violated Section 8(a)(5)
and (1) of the Act by failing, since June 1, 1998, to
maintain contractually required health insurance for its
unit employees and failing to pay their medical expenses,
we shall order the Respondent to restore the employees’
health insurance coverage and any other contractually
required medical coverage and make the employees
whole by reimbursing them for any expenses ensuing
from the Respondent’s unlawful conduct, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn.2 (1980),
enfd. 661 F.2d 940 (9th Cir. 1981), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Dandy Mining, Inc. and Janet Holbrook,
Trustee in Bankruptcy for Dandy Mining, Inc., Logan
County, West Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing to continue in effect all of the terms and
conditions of the National Bituminous Coal Wage
Agreement of 1993 by failing to provide appropriate
medical insurance and to pay the medical expenses of the
unit employees.
(b) 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) Restore the health insurance coverage and any
other contractually required medical coverage for the
following unit employees:
The employees of the Respondent described in Article
IA of the National Bituminous Coal Wage Agreement
of 1993.
(b) Make the unit employees whole in the manner set
forth in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Logan County, West Virginia, copies of the
attached notice marked "Appendix".2 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 1, 1998.
(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. September 17, 1998
Sarah M. Fox, Member
Wilma B. Liebman, Member
Peter J. Hurtgen, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT fail to continue in effect all of the terms
and conditions of the National Bituminous Coal Wage
Agreement of 1993 by failing to provide appropriate
medical insurance and to pay the medical expenses of our
unit employees.

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DANDY MINING, INC. 3
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL restore the health insurance coverage and any
other contractually required medical coverage for the
following unit employees and WE WILL make them
whole, with interest:
All our employees described in Article IA of the Na-
tional Bituminous Coal Wage Agreement of 1993.
DANDY MINING, INC. AND JANET HOLBROOK,
TRUSTEE IN BANKRUPTCY