Sonya Trucking Co.

National Labor Relations Board - Board Decisions

Nov 5, 1993

312 N.L.R.B. 1159 (N.L.R.B. 1993)

1159
312 NLRB No. 185
SONYA TRUCKING CO.
1 We note additionally that, to the extent the Respondent in its an-
swer relies on its economic circumstances, the Board has long held
that the inability to pay is not a defense to the allegation that Re-
spondent has failed to make payments as required under the parties’
collective-bargaining agreement. Oak Cliff-Golman Baking Co., 207
NLRB 1063, 1064 (1973).
2 All dates are in 1992 unless otherwise noted.
Sonya Trucking, Inc. d/b/a Sonya Trucking Com-
pany and United Mine Workers of America.
Case 9–CA–30654
November 5, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Union on May 4, 1993,
the General Counsel of the National Labor Relations
Board issued a complaint on June 18, 1993, against
Sonya Trucking, Inc. d/b/a Sonya Trucking Company,
the Respondent, alleging that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations
Act. Subsequently, the Respondent filed an answer to
the complaint asserting that it was without sufficient
knowledge to admit or deny certain allegations, and
admitting in part and denying in part other allegations
in the complaint. Concurrent with its answer, the Re-
spondent filed a motion to dismiss in which it asserted,
inter alia, that the matter before the Board should be
dismissed or, in the alternative, held in abeyance ‘‘in
respect of the bankruptcy stay imposed by 11 U.S.C.
362.’’
On August 2, 1993, the General Counsel filed a Mo-
tion for Summary Judgment, memorandum in support
of Motion for Summary Judgment, and memorandum
in opposition to the Respondent’s motion for dismissal.
Thereafter, on August 10, 1993, the Board issued its
order transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel’s mo-
tion should not be granted. On August 24, 1993, Re-
spondent filed a letter responding to the Notice to
Show Cause.
Rulings on the Motion for Summary Judgment
and Motion to Dismiss
In its response to the Notice to Show Cause, the Re-
spondent states that it has no defense which it can ad-
vance to certain allegations in the complaint with re-
gard to its failure to abide by the terms of its collec-
tive-bargaining agreement with the Union. It further
states that, although the Board is ‘‘entitled’’ to exer-
cise jurisdiction over this proceeding despite the Re-
spondent’s bankruptcy filing, the Bankruptcy Court
maintains exclusive jurisdiction to liquidate claims and
determine amounts due and owing to ‘‘any individual
entity,’’ including the Union.
As recognized by the Respondent, the filing of a
bankruptcy petition does not deprive the Board of its
jurisdiction to address unfair labor practices. Moreover,
it is well established that Board proceedings fall within
the exception to the automatic stay provision of the
Federal Bankruptcy Code for governmental entities en-
forcing police or regulatory powers. E.g., Super Car-
bide Tools, 307 NLRB 1052 fn. 1 (1992), and Con-
tinental Hagen Corp., 306 NLRB No. 172 (Mar. 27,
1992) (not reported in Board volumes). Significantly,
the Board may in such circumstances process an unfair
labor practice case to its final disposition including de-
termination of such monetary amounts as may be owed
as a result of unfair labor practices.1
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment and deny the Respondent’s
motion to dismiss.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the op-
eration of a coal hauling service in Dorothy, West Vir-
ginia. During the 12 months preceding the issuance of
the complaint, the Respondent, in conducting its oper-
ations, derived revenues in excess of $50,000 for serv-
ices provided to Tony’s Branch Coal Company, a min-
ing enterprise located within the State of West Vir-
ginia. During those 12 months, Tony’s Branch Coal
Company, in conducting its coal mining operations,
sold and shipped from its 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 employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
We further find 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 Respondent described in article
IA of the District 17 Transportation Agreement, ‘‘The
Agreement,’’ constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act. Since about January 2, 1991,
and at all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of the unit and, since that time, has been so recognized
by the Respondent. This recognition has been em-
bodied in the collective-bargaining agreement between
the Respondent and the Union, the Agreement, which
was effective from January 2, 1991, through February
1, 1993.
Since about November 4, 1992,2 the Respondent has
failed to continue in effect the terms and conditions of
the Agreement by failing to remit to the Union union
dues and other union assessments deducted from unit
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We note in this regard that there is no statutory duty to deduct
union dues under a contractual dues-checkoff procedure following
the expiration of the collective-bargaining agreement. See United
States Can Co., 305 NLRB 1127, 1137 (1992), Robbins Door &
Sash Co., 260 NLRB 659 (1982), and Bethlehem Steel Co., 136
NLRB 1500, 1502 (1962).
employees’ paychecks under the terms of the union-
dues checkoff and deduction provisions of the Agree-
ment. Additionally, since November 4, the Respondent
has failed to forward to the Union pension fund
records reflecting the man-hours worked by employees
for the purpose of computing contributions to be cred-
ited to their retirement accounts under the provisions
of the Agreement. The Respondent has also failed,
since about October 4, to continue in effect all the
terms and conditions of the Agreement by failing to
provide appropriate medical insurance and pay the
medical expenses of unit employees. The terms and
conditions of employment described above are manda-
tory subjects of bargaining, and the Respondent en-
gaged in the conduct described above without the
Union’s consent.
CONCLUSIONS OF LAW
1. By unilaterally failing to remit to the Union union
dues and other union assessments deducted from unit
employees’ paychecks under the terms of the Agree-
ment, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
2. By failing to forward to the Union pension fund
records reflecting the man-hours worked by employees
for the purpose of computing contributions to be cred-
ited to their retirement accounts under the provisions
of the Agreement, the Respondent has engaged in un-
fair labor practices within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
3. By failing to continue in effect the terms and con-
ditions of the Agreement by failing to provide appro-
priate medical insurance to unit employees and pay
their medical expenses, the Respondent has engaged in
unfair labor practices 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 action de-
signed to effectuate the policies of the Act.
Specifically, we shall order the Respondent to ad-
here to the collective-bargaining agreement by requir-
ing the Respondent to remit to the Union union dues
and other union assessments deducted from the unit
employees’ paychecks under the terms of the union-
dues checkoff and deduction provisions of the Agree-
ment that it unlawfully failed to remit since about No-
vember 4, 1992,3 with interest computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
We further shall order the Respondent to restore the
status quo ante in effect prior to the unilateral changes
made in the employees’ terms and conditions of em-
ployment. In this regard, we shall order the Respond-
ent to forward to the Union pension fund records re-
flecting man-hours worked by unit employees for the
purpose of computing contributions to be credited to
their retirement accounts under the provisions of the
Agreement and to furnish to the fund the contractually
required records it failed to furnish in the past. We
shall also order the Respondent to provide appropriate
medical insurance and to pay the medical expenses of
the employees in the unit and to make unit employees
whole for any expenses they may have incurred be-
cause of the Respondent’s failure and refusal to do so,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981), with interest as prescribed in New Horizons for
the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Sonya Trucking, Inc. d/b/a Sonya Truck-
ing Company, Dorothy, West Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers
of America, the exclusive collective-bargaining rep-
resentative of the Respondent’s employees in an appro-
priate unit by: unilaterally failing to continue in effect
terms and conditions of the parties’ collective-bargain-
ing agreement by failing to remit to the Union union
dues and other union assessments deducted from unit
employees’ paychecks under the terms of that agree-
ment; failing to forward to the Union pension fund
records reflecting man-hours worked by unit employ-
ees for the purpose of calculating contributions to be
credited to their retirement accounts under the terms of
the parties’ collective-bargaining agreement; and fail-
ing to provide appropriate medical insurance and to
pay the medical expenses of the employees in the unit.
(b) In any like or related manner interfering with,
restraining, 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) Remit to the Union all union dues and other
union assessments that it has failed to remit since No-
vember 4, 1992, with interest, as set forth in the rem-
edy section of this decision.
(b) Forward to the Union pension fund records re-
flecting the man-hours worked by unit employees for
1161SONYA TRUCKING CO.
4 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
National 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.’’
the purpose of calculating the contributions to be cred-
ited to their retirement accounts.
(c) Provide appropriate medical insurance to unit
employees as set forth in the remedy section of this
decision.
(d) Make the unit employees whole for medical ex-
penses they may have incurred as set forth in the rem-
edy section of this decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount due to the
Union and unit members under the terms of this Order.
(f) Post at its facility in Dorothy, West Virginia,
copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Re-
gional 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 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.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Mine
Workers of America, the exclusive collective-bargain-
ing agent of our employees in an appropriate unit, by
unilaterally failing to continue in effect terms and con-
ditions of the collective-bargaining agreement by fail-
ing to remit to the Union union dues and other union
assessments deducted from unit employees’ paychecks
under the terms of the agreement; by failing to forward
to the Union pension fund records reflecting man-
hours worked by unit employees for the purpose of
calculating contributions to be credited to their retire-
ment accounts under the terms of the agreement; and
by failing to provide appropriate medical insurance and
to pay the medical expenses of the employees in the
unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL remit to the Union all union dues and
other union assessments, with interest, that we have
failed to remit from about November 4, 1992.
WE WILL forward to the Union pension fund records
reflecting man-hours worked by unit employees for the
purpose of calculating contributions to be credited to
their retirement accounts that we have failed to for-
ward since about November 4, 1992.
WE WILL provide appropriate medical insurance for
our employees and make the unit employees whole for
any expenses incurred as a result of our failure to pro-
vide appropriate medical insurance, with interest.
SONYA TRUCKING, INC. D/B/A SONYA
TRUCKING COMPANY