Sherwood Coal Co.

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 497 (N.L.R.B. 1980)

SHERWOOD COAL COMPANY
Sherwood Coal Company and Ira A. Evans. Case 9-
CA-14362
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on September 24, 1979, by
Ira A. Evans, an individual, herein called the
Charging Party, and duly served on Sherwood
Coal Company, herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 9,
issued a complaint on February 6, 1980, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the National Labor Re-
lations Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about
September 14, 1979, Respondent discharged em-
ployee Ira A. Evans, the Charging Party herein,
and employees Randall Kirk, Fred Kirk, Danny
Williams, Roger Fry, Wandal Atkins, Mike Shep-
herd, Bill Vance, and Terry Dillon because they
engaged in protected concerted activities (i.e., ces-
sation of work in protest of abnormally dangerous
working conditions) and to discourage employees
from engaging in such activities or other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection. Respondent
failed to file an answer to the complaint.
On July 31, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 6, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
252 NLRB No. 74
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing issued on
February 6, 1980, and served on Respondent by
registered mail, return receipt dated February 7,
1980, specifically states that, unless an answer to
the complaint is filed within 10 days from the serv-
ice thereof "all of the allegations in the complaint
shall be deemed admitted to be true and shall be so
found by the Board." As no answer was filed and
no extension of time to answer requested or grant-
ed before the due date, counsel for the General
Counsel, on July 31, 1980, filed a Motion for Sum-
mary Judgment pursuant to Sections 102.20 and
102.21 of the National Labor Relations Board
Rules and Regulations.
On August 6, 1980, the Board issued a Notice To
Show Cause why the General Counsel's motion
should not be granted and, on August 22, 1980, Re-
spondent filed a response thereto entitled "Re-
sponse To Show Cause." Respondent's response to
the Notice To Show Cause argues that the General
Counsel's Motion for Summary Judgment should
not be granted, and denies each and every allega-
tion of the motion.' Respondent's only explanation
as to its failure to file a timely answer to the com-
plaint is that its counsel was delinquent in review-
ing the matter. 2 We do not believe Respondent's
submissions constitute good cause, within the
meaning of Section 102.20 of the Board's Rules and
Regulations, for failure to file a timely answer. Ac-
cordingly, under the rule cited above, the allega-
tions of the complaint shall be deemed to be ad-
' Although Respondent denies each allegation of the motion which
necessarily includes a denial of service of process of the complaint, the
fact that Respondent argues that its attorney was delinquent in reviewing
the matter indicates Respondent did receive the complaint.
2 In 0 R. Cooper and Son, 225 NLRB 1255 (1976), we held that the
incapacitation of a respondent's owner during the time in which the
answer as due was not good cause. In Sullivan Magee & Sullivan. Inc.
Magee Blusveh Corp.. SMS Controctors. Patrick J Magee. and John F
Magee, 229 NLRB 543 (1977). the failure of a respondent's attorney to
file an answer because he had not been paid was likewise insufficient to
show cause
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted to be true and are so found, and, according-
ly, we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a West Virginia corporation with an office
and place of business at Ethel, West Virginia. It is
engaged in the underground mining of coal.
During the past 12 months, a representative period,
Respondent sold and shipped from its Ethel, West
Virginia, facility goods, materials, and products
valued in excess of $50,000 directly to other enter-
prises located within the State of West Virginia, in-
cluding Island Creek Coal Company.
Island Creek Coal Company, a West Virginia
corporation, is engaged in the mining and sale of
coal at various sites throughout West Virginia and
annually sells and ships goods, materials, and prod-
ucts valued in excess of $50,000 from its West Vir-
ginia facilities directly to points outside the State of
West Virginia.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE CHARGING PARTY
Ira A. Evans, the Charging Party herein, and
Randall Kirk, Fred Kirk, Danny Williams, Roger
Fry, Wandal Atkins, Mike Shepherd, Bill Vance,
and Terry Dillon are employees within the mean-
ing of Section 2(3) of the Act.
II1. THE UNFAIR LABOR PRACTICES
The 8(a)(1) Violations
On or about September 14, 1979, Respondent
discharged employee Ira A. Evans, the Charging
Party herein, and employees Randall Kirk, Fred
Kirk, Danny Williams, Roger Fry, Wandal Atkins,
Mike Shepherd, Bill Vance, and Terry Dillon. Re-
spondent engaged in this conduct because the em-
ployees engaged in protected concerted activities
(i.e., a work stoppage in protest of abnormally dan-
gerous working conditions) and to discourage em-
ployees from engaging in such activities or other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We find that, by the acts and conduct set forth,
Respondent has interfered with, restrained, and co-
erced employees in the exercise of the rights guar-
anteed them under Section 7 of the Act, and there-
by has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
IV. THEI EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
II1, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion (a)(l) of the Act, we shall order that it cease
and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the
Act.
To remedy Respondent's discharge of Ira A.
Evans, Randall Kirk, Fred Kirk, Danny Williams,
Roger Fry, Wandal Atkins, Mike Shepherd, Bill
Vance, and Terry Dillon, in violation of Section
8(a)(l) of the Act, we shall order that Respondent
offer immediate and full reinstatement to them to
their former jobs or, if such jobs no longer exist, to
substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and
make them whole for any loss of earnings they
may have suffered by payment to them of sums
equal to the amounts they normally would have
earned as wages from the date of their discharges
to the date of Respondent's offers of reinstatement,
less net earnings, in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977). See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).3
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Sherwood Coal Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Ira A. Evans, Randall Kirk, Fred Kirk, Danny
Williams, Roger Fry, Wandal Atkins, Mike Shep-
3 In accordance with his partial dissent in Olympic Medical Corporation,
250 NLRH No 11 (1980), Member Jenkins would aard interest on the
backpay due based on the formula set forth therein
498
SttIRWO()D C()AL COMPANY
herd, Bill Vance, and Terry Dillon are employees
within the meaning of Section 2(3) of the Act.
3. By discharging said employees because of
their protected concerted activities, Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Sherwood Coal Company, Ethel, West Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their pro-
tected concerted activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of tile
Act:
(a) Offer immediate and full reinstatement to Ira
A. Evans, Randall Kirk, Fred Kirk, Danny Wil-
liams, Roger Fry, Wandal Atkins, Mike Shepherd,
Bill Vance, and Terry Dillon to their former jobs
or, if such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority
or other rights and privileges previously enjoyed,
and make them whole with interest for any loss of
earnings in the manner set forth in the section
herein entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at the Ethel, West Virginia, facility
copies of the attached notice marked "Appendix." 4
4 In the event that this Order is enforced hb a Judgment of Ulnited
States Court of Appeals. the words i he notice reading "Polsted hby
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondcrint to insure that said notices are not altered.
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
()rdlr cof The Nliorl I aIhr Relations I loard" sill r.d To,cd Pur, -
all to . JIletnilteri[ l'h i e icd Stale> Coull of ppeal, Yiifir tilg an
t)rdt.r A I he NmiIonal abor Rela.tiom IB.ard
APPENDIX
NoTricui TO EmPI OYvlES
PosTEi) BY ORDER 01F TIll
NATIONA. LABOR Rlil.ATIONS BOARD
An Agency of the United States Government
Wt wi I NOI discharge employees because
they engage in protected concerted activities.
W'I: wii I NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
Wt. wil.. offer immediate and full reinstate-
ment to Ira A. Evans, Randall Kirk, Fred
Kirk, Danny Williams, Roger Fry, Wandal
Atkins, Mike Shepherd, Bill Vance. and Terry
Dillon to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other
rights and privileges previously enjoyed, and
WE WILL make them whole, with interest,
for any loss of earnings suffered as a result of
being discharged.
SHERWOOD COAL COMPANY
499