Vanguard Energy Co.

National Labor Relations Board - Board Decisions

May 10, 1979

242 N.L.R.B. 114 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vanguard Energy Company and Lonnie D. Bender.
Case 6 CA 11627
May 10, 1979
DECISION AND ORDER
BY MEMBERS PNEIL.O, MURPHY, AND TRUESDALE
Upon a charge filed on September 18, 1978, by
Lonnie D. Bender, an individual, herein called the
Charging Party, and duly served on Vanguard En-
ergy Company, herein called Respondent, the Gen-
eral Counsel of the National Labor Relations Board.
by the Regional Director for Region 6, issued a com-
plaint and notice of hearing on October 25, 1978,
against Respondent, 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
Relations Act, as amended. Copies of the charge,
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 com-
plaint alleges that Respondent violated Section
8(a)(1) of the Act by laying off employee Lonnie D.
Bender on or about August 19, 1978, and thereafter
refusing to reinstate him, because he engaged in con-
certed activity with other employees for the purpose
of collective bargaining and other mutual aid and
protection. Respondent did not file an answer to the
complaint.
On February 13, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached, based
upon Respondent's failure to file an answer as re-
quired by Section 102.20 of National Labor Relations
Board Rules and Regulations, Series 8, as amended.
Subsequently, on February 22, 1979, the Board issued
an order transferring the proceeding to the Board and
a Notice To Show Cause why the General Counsel's
motion should not be granted. Respondent failed to
file a response to the Notice To Show Cause. Accord-
ingly, the allegations of the Motion for Summary
Judgment stand uncontroverted.
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:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
allegation in the complaint not specifically de-
nied or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted 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 served on Re-
spondent specifically stated that unless an answer to
the complaint was filed within 10 days of service
thereof "all of the allegations in the Complaint shall
be admitted to be true and may be so found by the
Board." According to the uncontroverted allegations
of the Motion for Summary Judgment, Respondent
was further advised orally of its obligation to file an
answer on November 27, 1978, by counsel for the
General Counsel. Respondent was again advised of
this obligation by the General Counsel in a letter De-
cember 1, 1978, and was notified, by letter dated
January 9, 1979, that should no answer be received
by January 15, 1979, a Motion for Summary Judg-
ment would be filed. As noted, Respondent has not at
any time filed an answer to the complaint, nor has it
filed a response to the Notice To Show Cause. Ac-
cordingly, no good cause to the contrary having been
shown, and in accordance with the rule set forth
above, the allegations in the complaint are deemed to
be admitted and are found to be true.' Accordingly,
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 Delaware corporation with offices located in
Elkins, West Virginia, and its principal facility lo-
cated in Pickens, West Virginia. Respondent is engag-
ing in the business of strip mining and in the nonretail
sale of coal. During the 12-month period immediately
preceding the issuance of the complaint, Respondent
purchased for use at its Pickens facility goods and
materials valued in excess of $50,000 directly from
firms or enterprises located outside the State of West
I Jerry C Wilson, Curlis Wilson and Rodney V. Wilson d/b/a Wilson &
Sons, 193 NLRB 350 (1971).
242 NLRB No. 26
114
VANGUARD ENERGY COMPANY
Virginia and sold and shipped goods and materials
valued in excess of $50,000 directly to points located
outside the State of West Virginia.
We find, on the basis of the foregoing, that Respon-
dent 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.
to him of a sum of money equal to the amount he
normally would have earned as wages from the date
of his layoff to the date of Respondent's offer of rein-
statement, less net interim earnings. Backpay is to be
computed in the manner prescribed in F ' 4' Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).2
The Board, upon the basis of the fioregoing facts
and the entire record, makes the following:
11. THE UNFAIR LABOR PRACTICES
On or about August 19, 1978, Respondent, through
its officers, agents, and representatives, laid off an em-
ployee, Lonnie D. Bender, and since that date has
failed and refused to reinstate him, and continues to
fail and refuse to recall him to his former or substan-
tially equivalent position of employment, because he
engaged in concerted activities with other employees
for the purpose of collective bargaining and other
mutual aid and protection.
Accordingly, we find that, by the aforesaid con-
duct, Respondent interfered with, restrained, and co-
erced its employees in the exercise of the rights guar-
anteed them under Section 7 of the Act and that, by
such conduct. Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
III. TE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in and
is engaging in certain unfair labor practices within the
meaning of Section 8(a)(1) of the Act, we shall order
that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having also found that Respondent laid off and
refused to recall Lonnie D. Bender, we shall order
Respondent to offer him immediate and full reinstate-
ment to his former job or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privi-
leges previously enjoyed, and make him whole for
any loss of earnings he may have suffered by payment
CoNCILr SIONS OF LAW'
1. Respondent, Vanguard Energy Company, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act
by laying off and refusing to reinstate employee Lon-
nie D. Bender because he engaged in concerted ac-
tivity with other employees for the purpose of collec-
tive bargaining and other mutual aid and protection.
3. By the acts and conduct described above. Re-
spondent has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed
them in Section 7 of the Act and thereby has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)( I) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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 Rela-
tions Board hereby orders that Respondent, Van-
guard Energy Company, Pickens, West Virginia, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Laying off and refusing to reinstate employees
because they choose to engage in protected concerted
activity for the purpose of collective bargaining and
other mutual aid or protection.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 the Act:
(a) Offer Lonnie D. Bender immediate and full re-
instatement to his former position or, if such position
no longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights and
privileges previously enjoyed, and make him whole
for any loss of earnings suffered by him by paying
2 See. generally. iss PlunthinR & Itfetg C('. 138 NlRB 716 (1962)
115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him a sum of money to be determined in accordance
with the formula set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze and compute the
amount of backpay due under the terms of this Order.
(c) Post at its Pickens, West Virginia, facility cop-
ies of the attached notice marked "Appendix." 3 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 6, in
3 In the event that 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."
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL . NOT lay off and refuse to reinstate
any employees because they engage in concerted
activity for the purpose of collective bargaining
or other mutual aid and protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Lonnie D. Bender immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority and
other rights and privileges previously enjoyed,
and WE WILL make him whole, with interest, for
any loss of pay he may have suffered by reason
of the discrimination against him.
VANGUARD ENERGY COMPANY
116