Powell & Hunt Coal Co , Inc

National Labor Relations Board - Board Decisions

Apr 25, 1989

293 N.L.R.B. 842 (N.L.R.B. 1989)

842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Powell & Hunt Coal Co , Inc and District 17,
United Mine Workers of America Case 9-CA-
26006
April 25, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
Upon a charge filed by the Union December 9,
1988, the General Counsel of the National Labor
Relations Board issued a complaint against Powell
& Hunt Coal Co, Inc, the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the
National Labor Relations Act Although properly
served copies of the charge and complaint,' the
Respondent has failed to file an answer
On March 6, 1989, the General Counsel filed a
Motion for Summary Judgment On March 10,
1989, 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 delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
Section 102 20 of the Board's Rules and Regula-
tions provides 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 The complaint states
that unless an answer is filed within 14 days of
service, "all of the allegations in the complaint
shall be deemed to be admitted to be true and shall
be so found by the Board " Further, the undisputed
allegations in the General Counsel's memorandum
in support of the Motion for Summary Judgment
i The General Counsel s memorandum in support of the Motion for
Summary Judgment alleges that the Respondent refused service of the
charge that was sent by certified mail on December 9 1988 The copy of
the cover letter attached to the charge bears the notation Retd 12/22/88
Refused The address that appears on the charge and on the cover letter
is the same as the address on the envelope containing the complaint
which also was refused The General Counsel s memorandum further
avers that the charge was served by regular mail on December 22 1988
and was not returned to the Regional Office undelivered We find that
the charge was effectively served on the Respondent
The General Counsel alleges that the Respondent also refused service
of the complaint which was sent by certified mail on January 12 1989
The certified mail envelope containing the complaint a copy of which is
attached to the motion is marked refused as is the certified mail enve
lope containing the letter from counsel for the General Counsel to the
Respondent dated February 13 1989 warning that he would move for
summary judgment if the Respondent failed to answer the complaint The
General Counsels memorandum alleges that like the charge the com
plaint and the warning letter were also served by regular mail and were
not returned to the Regional Office We find that the Respondent has re
fused to accept delivery of the charge and the complaint
disclose that counsel for the General Counsel, by
letter dated February 13, 1989, notified the Re-
spondent that unless an answer was received by
February 22, 1989, a Motion for Summary Judg-
ment would be filed
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judg-
ment 2
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a corporation, has been en
gaged in mining coal at its facility in the vicinity of
Hanover, West Virginia During the 12 months
prior to the issuance of the complaint, the Re-
spondent, in the course and conduct of those oper-
ations, sold and shipped from that facility products,
goods, and materials valued in excess of $50,000 di-
rectly to National Mines Corporation, a nonretail
West Virginia enterprise, which in turn annually
sold and shipped products, goods, and materials
valued in excess of $50,000 from its West Virginia
facility directly to points outside West Virginia
We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
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
the National Bituminous Coal Wage Agreement of
1988 constitute a unit appropriate for collective
bargaining under Section 9(b) of the Act Since
March 9, 1988, the Union has been designated the
exclusive collective bargaining representative of
the employees in the unit and has been recognized
as such by the Respondent That recognition has
been embodied in a collective-bargaining agree-
ment, the National Bituminous Coal Wage Agree-
ment, which is effective from February 1, 1988, to
February 1, 1993 Since March 9, 1988, the Union,
by virtue of Section 9(a) of the Act, has been the
exclusive representative of the unit employees for
the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment
2 The Respondents refusal to accept delivery of the charge and com
plaint does not of course constitute good cause for its failure to file an
answer See Michigan Expediting Service 282 NLRB 210 fn 6 (1986)
Aslm Management Co 291 NLRB No 33 slip op at 3 (Sept 30 1988)
293 NLRB No 105
POWELL & HUNT COAL CO
About March 9, 1988, the Respondent and the
Union reached full agreement on and executed a
collective-bargaining contract covering the unit
employees Since about June 22, 1988, the Re-
spondent has failed and refused to adhere to the
substantive terms of that contract by failing to pro-
vide the employees in the unit with the wage rates,
holiday and vacation pay, health insurance, and
other benefits set forth in the contract, and by fail-
ing to abide by the procedure set forth in the con-
tract for resolving disputes concerning the employ-
ees' health insurance coverage By failing and re
fusing to abide by the terms of its contract with the
Union, the Respondent has violated Section 8(a)(5)
and (1) of the Act
Since about November 9, 1988, the Union has re
quested the Respondent to furnish the Union with
a copy of all health, life, and accident insurance
policies concerning unit employees that were in
effect since January 1, 1988, as well as a list of the
names, addresses, telephone numbers, social securi-
ty numbers, and dates of hire of all unit employees
employed as of January 31, 1988, and at the time of
the request 3 The information requested by the
Union is necessary for, and relevant to, the Union
in its role as the exclusive bargaining representative
of unit employees Since about November 9, 1988,
the Respondent has failed and refused to furnish
the information requested By failing and refusing
to provide the Union with that information, the
Respondent has violated Section 8(a)(5) and (1) of
the Act
CONCLUSIONS OF LAW
By failing and refusing to adhere to the terms of
its collective bargaining agreement with the Union
and to provide the Union with information that is
relevant and necessary to its role as exclusive bar-
gaining representative of employees in the unit, the
Respondent has failed and refused, and is failing
and refusing, to bargain collectively and in good
faith with the representative of its employees as re-
quired by Section 8(d) of the Act, and thereby has
engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
3 The request was made by letter addressed to Herman Powell press
dent of the Respondent At all times material to this proceeding Powell
has been a supervisor of the Respondent within the meaning of Sec 2(11)
of the Act and an agent of the Respondent within the meaning of Sec
2(13) of the Act
843
action designed to effectuate the policies of the
Act We shall require the Respondent to adhere to
the terms of its collective bargaining agreement
with the Union and, on request, to furnish the
Union with information that is relevant and neces
sary to its role as exclusive bargaining representa-
tive of employees in the unit We also shall require
the Respondent to make whole its unit employees
for any losses they may have suffered as a result of
its failure and refusal to adhere to the terms of the
collective-bargaining agreement 4
ORDER
The National Labor Relations Board orders that
the Respondent, Powell & Hunt Coal Co, Inc,
Oceana, West Virginia, its officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Failing to adhere to the terms of its collec-
tive-bargaining agreement with District 17, United
Mine Workers of America (the Union)
(b) Failing and refusing to furnish the Union
with information that is relevant and necessary to
its role as exclusive collective-bargaining represent-
ative of employees of the Employer in an appropri-
ate unit as described in the National Bituminous
Coal Wage Agreement of 1988
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Adhere to the terms of the collective-bargain
ing agreement that the Respondent entered into
with the Union about March 9, 1988, specifically
with respect to contractual wage rates, holiday and
vacation pay, health insurance, and other benefits,
and to abide by the contractual procedure for re-
solving disputes regarding employees' health insur-
ance coverage
(b) On request, furnish the Union with informa-
tion that is relevant and necessary to its role as ex-
clusive collective-bargaining representative of em-
ployees in the unit Specifically, the Respondent
shall, on request, provide the Union with copies of
all health, life, and accident insurance policies con-
cerning unit employees that were in effect since
January 1, 1988, as well as a list of the names, ad-
dresses, telephone numbers, social security num-
bers, and dates of hire for all unit employees em-
ployed as of January 31, 1988 and at the time of
4 The identities of employees who suffered such losses shall be deter
mined in compliance proceedings
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union's November 9, 1988 request for informa
tion
(c) Make whole the employees in the unit for
any losses they may have suffered as a result of the
Respondent's failure and refusal to adhere to the
terms of the collective-bargaining agreement, as
provided in Ogle Protection Service, 183 NLRB 682,
683 (1970), and Kraft Plumbing & Heating, 252
NLRB 891 (1980), with interest as provided in New
Horizons for the Retarded, 283 NLRB 1173 (1987)
(d) Post at its facility in the vicinity of Hanover,
West Virginia, copies of the attached notice
marked "Appendix "5 Copies of the notice, on
forms provided by the Regional Director for
Region 9, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em
ployees are customarily posted Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
5 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT fail and refuse to adhere to the
terms of our collective-bargaining agreement with
District 17, United Mine Workers of America (the
Union)
WE WILL NOT fail and refuse to furnish the
Union with information that is relevant and neces-
sary to its role as exclusive collective-bargaining
representative of employees in the unit described in
the National Bituminous Coal Wage Agreement of
1988
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL adhere to the terms of our collective
bargaining agreement with the Union
WE WILL, on request, furnish the Union with in-
formation that is relevant and necessary to its role
as bargaining representative of employees in the
unit
WE WILL make whole our employees for any
losses they may have sustained as a result of our
failure and refusal to adhere to the terms of our
collective-bargaining agreement with the Union,
with interest
POWELL & HUNT COAL CO, INC