World Services Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1980

247 N.L.R.B. 1432 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
World Services Corporation and/or Peggs Run Coal
Company; and World Services Corporation, Debtor
in Possession and James D. Beachem. Case 6-CA-
12603
February 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on July 27, 1979, by James D.
Beachem, an Individual, herein called Beachem, and
duly served on World Services Corporation and/or
Peggs Run Coal Company; and World Services
Corporation, Debtor in Possession, herein collectively
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 6, issued a complaint and notice of
hearing on November 20, 1979, 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), (3), and (5) 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 administrative law judge
were duly served on the parties to this proceeding.
Thereafter, the attorney representing Respondent in
bankruptcy court sent a letter to the Regional Direc-
tor, dated November 27, 1979. The letter contends
that Respondent is a debtor-in-possession and that
section 362 of the National Bankruptcy Act prohibits
the commencement or continuation of judicial or
administrative process against a debtor for activities
prior to the filing date for relief in bankruptcy court;
here October 31, 1979.
On December 19, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment based on Respondent's failure to
file an answer as required by Section 102.20 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended. Subsequently, on Decem-
ber 31, 1979, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Summa-
ry Judgment should not be granted. On January 8,
1980, Respondent filed a response to the Notice To
Show Cause. Thereafter, on January 16, 1980, counsel
for the General Counsel filed a memorandum in
opposition to Respondent's reply statement to the
Notice To Show Cause.
' On December 12, 1979. Respondent's bankruptcy attorney provided the
Regional Office with the complaint filed in bankruptcy court. By return letter
dated December 13, 1979, the deputy regional attorney expressed the view
247 NLRB No. 201
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 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 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
Respondent specifically stated that unless an answer
was filed to the complaint within 10 days from the
service thereof, "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, according to the
uncontroverted allegations of the Motion for Summa-
ry Judgment, the Acting Regional Attorney, by letter
dated December 7, 1979, informed Respondent of its
obligation to file an answer, which was already past
due, and further informed Respondent that unless an
answer was received immediately, a Motion for
Summary Judgment would be filed. By letter dated
December 10, 1979, an attorney representing Respon-
dent referred the Regional Office to the November 27,
1979, letter from Respondent's bankruptcy attorney
and stated that it did not intend to file any further
response at that time.' No answer to the complaint has
been received to date from Respondent.
In its response to the Notice To Show Cause,
Respondent states that it does not contemplate ap-
pearing in front of the National Labor Relations
Board in the instant matter but, instead, intends to
continue to pursue its claim in bankruptcy court. The
response further contends that the current bankruptcy
code provisions give the bankruptcy court exclusive
that, inasmuch as the bankruptcy proceeding did not stay the Board
prceeding, he intended to file notice for summary judgment.
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WORLD SERVICES CORPORATION
jurisdiction over all controversies affecting the debtor
or the debtor's estate.
As indicated above, Respondent was notified by
letter that its answer to the complaint was overdue
and that a Motion for Summary Judgment would be
filed if no answer was filed immediately. To date,
Respondent has failed to file an answer to the
complaint. The response to the Notice To Show Cause
does not deny the commission of any unfair labor
practices by Respondent, and, therefore, the allega-
tions of the complaint stand uncontroverted. The
response claims that the bankruptcy court has exclu-
sive jurisdiction in this matter, but does not explain
why Respondent failed to contact the Regional Office
concerning an answer or an extension of time for filing
an answer. Accordingly, we find that the response to
the Notice To Show Cause does not constitute good
cause for Respondent's failure to file a timely answer
within the meaning of Section 102.20 of the Board's
Rules and Regulations.2
Therefore, in accordance with the rule set forth
above, no good cause having been shown for the
failure to file a timely answer, the allegations of the
complaint are deemed to be admitted and are so found
by the Board, and the General Counsel's Motion For
Summary Judgment is granted.
On the basis of the entire record, the Board makes
the following:
FINDING OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Pennsylvania corporation with an
office and place of business in Shippingport, Pennsyl-
vania, where it has been engaged in the operation of a
coal preparation plant. During the 12-month period
ending July 1, 1979, Respondent, in the course and
conduct of its operations described above, provided
services valued in excess of $50,000 for other enter-
prises within the Commonwealth of Pennsylvania,
including Ohio Fuel Sales Company. Ohio Fuel Sales
Company, a Pennsylvania corporation with its princi-
pal office in Johnstown, Pennsylvania, is engaged in
the nonretail purchase and sale of coal. During the 12-
month period ending July 1, 1979, Ohio Fuel Sales
Company, in the course and conduct of its operations
described above, purchased and received at its Penn-
sylvania facilities products, goods, and materials
valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged i commerce within the
In this regard. 'ee The7 Monroe Furniture Cornplri. Inc. 231 NLRB 143
t1977). and Evan, Expre-v Comrpany. Inc. and Interconline,,,lal Sv,,ltl 1, Inc..
232 NLRB h55 (1977)
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 LABOR ORGANIZATION INVOI.VEDI)
United Mine Workers of America. District No. 5,
Local Union No. 1486, herein called the Union, is a
labor organization within the meaning of Section 2(5)
of the Act.
IIl. THE UINFAIR L.ABOR PRACTICES
A. The 8(a)(5) and (1) Violations
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All production and maintenance employees at the
Employer's Peggs Run coal mine located at
Shippingport, Pennsylvania; excluding all office
clerical employees and guards, professional em-
ployees and supervisors as defined in the Act.
On May 31, 1966, the Union was certified as the
exclusive collective-bargaining representative of the
employees in the above-described unit. At all times
since May 31, 1966, the Union, by virtue of Section
9(a) of the Act, has been, and is, the exclusive
representative of the employees in the above-described
unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
Since on or about March 8, 1979, and continuing to
date, certain employees of Respondent represented by
the Union and employed at Respondent's Shipping-
port, Pennsylvania, facility, concertedly ceased work
and engaged in a strike. Since on or about June 29,
1979, and continuing to date, Respondent has failed
and refused to pay accrued vacation benefits due all of
its striking employees, including James D. Beachem,
Robert C. Bollinger, Richard D. Burton, Harry A.
Carson, Robert Lee Carson, Robert Lynn Carson, Asa
V. Lemley, Daniel Logston, Sherman Tressler, Wil-
bert A. Weekley, and Charles B. Wright. Respondent
engaged in the acts and conduct described above
without prior notice to the Union and without having
afforded the Union an opportunity to negotiate and
bargain as the exclusive representative of Respon-
dent's employees with respect to such acts and
conduct.
Accordingly, we find that by the aforesaid conduct
Respondent has failed and refused, and is failing and
refusing, to bargain collectively and in good faith with
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union as the exclusive representative of the
employees in the appropriate unit. By such conduct,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
B. The 8(a)(3) and (1) Violations
As noted above, since on or about June 29, 1979,
and continuing to date, Respondent has failed and
refused to pay accrued vacation benefits due all of its
striking employees, including James D. Beachem,
Robert C. ollinger, Richard D. Burton, Harry A.
Carson, Robert Lee Carson, Robert Lynn Carson, Asa
V. Lemley, Daniel Logston, Sherman Tressler, Wil-
bert A. Weekley, and Charles B. Wright.
Accordingly, we find that, by the aforesaid conduct,
Respondent has discriminated, and is discriminating,
in regard to the hire or tenure or terms and conditions
of employment of its employees, thereby discouraging
membership in the Union. By such conduct, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR L.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) 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.
Such affirmative action shall include that Respon-
dent, upon request, meet and bargain with the Union
as the exclusive representative of its employees, and
that it cease and desist from unilaterally, without
notification to or consultation with the Union, failing
and refusing to pay accrued vacation benefits due all
its striking employees.
We have found that Respondent discriminated
against those employees listed in section III, B, above,
by failing and refusing, since on or about June 29,
1979, and continuing to date, to pay them accrued
vacation benefits. Accordingly, we shall order that
Respondent make whole the employees referred to
above by paying each of them the vacation benefits
withheld, with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).'
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCI.USIONS OF LAW
1. World Services Corporation and/or Peggs Run
Coal Company; and World Services Corporation,
Debtor in Possession, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Mine Workers of America, District No. 5,
Local Union No. 1486, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at the
Employer's Peggs Run coal mine located at Shipping-
port, Pennsylvania; excluding office clerical employ-
ees, guards, professional employees, and supervisors as
defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. At all times material herein, the Union has been
the exclusive representative of all the employees in the
aforesaid appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By failing and refusing, since on or about June 29,
1979, and at all times thereafter, to pay accrued
vacation benefits due all of its striking employees,
without prior notice to the Union and without having
afforded the Union an opportunity to negotiate and
bargain as the exclusive representative of Respon-
dent's employees with respect to such acts and
conduct, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By engaging in the aforesaid conduct, Respon-
dent has discriminated, and is discriminating, in
regard to the hire or tenure or terms and conditions of
employment of its employees, thereby discouraging
membership in a labor organization, and Respondent
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
Sec. generally. JIis Plumhing & Ilealing Co.. 13K NLRB 716 (1962).
1434
WORLD SERVICES CORPORATION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
World Services Corporation and/or Peggs Run Coal
Company; and World Services Corporation, Debtor in
Possession, Shippingport, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to negotiate and bargain with United
Mine Workers of America, District No. 5, Local
Union No. 1486, as the exclusive collective-bargaining
representative of its employees in the appropriate unit,
with regard to its decision to refuse pay, since on or
about June 29, 1979, and at all times thereafter,
accrued vacation benefits due all of its striking
employees. The appropriate unit is:
All production and maintenance employees at the
Employer's Peggs Run coal mine located at
Shippingport, Pennsylvania; excluding all office
clerical employees and guards, professional em-
ployees, and supervisors as defined in the Act.
(b) Failing and refusing to pay accrued vacation
benefits due all of its striking employees because of
their membership in, support of, or activities on behalf
of the above-named labor organization, or any other
labor organization.
(c) 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 which the
Board finds will effectuate the policies of the Act:
(a) Upon request, negotiate and bargain collectively
and in good faith with United Mine Workers of
America, District No. 5, Local Union No. 1486, as the
exclusive representative of the employees in the
aforesaid appropriate unit, with regard to its decision
to refuse paying accrued vacation benefits to all of its
striking employees.
(b) Make whole the following employees for any
losses in accrued vacation benefits which they may
have suffered as a result of the discrimination against
them, plus interest, in the manner and for the period
set forth in the section of this Decision entitled "The
Remedy":
James D. Beachem Asa V. Lemley
Robert C. Bollinger Daniel Logston
Richard D. Burton Sherman Tressler
Harry A. Carson Wilbert A. Weekley
Robert Lee Carson Charles B. Wright
Robert Lynn Carson
(c) 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 the amount of backpay
due under the terms of this Order.
(d) Post at its Shippingport, Pennsylvania, facility,
or any other facility to which it has subsequently
moved, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly
signed by Respondent's representative, shall be posted
by it 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
In the eent that this Order is eiorced b a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
Natiional Lahor Relation, B oard" shll read "'osted Pursuant to a Judgmenl
of the United State, Courl if Appeals Enfircing ain Order of the National
Lahlr Relationls Board
APPENDIX
NOTICE To EMPILOYEES
PosrED BY ORDER OF THE
NATIONAl. LABOR REIATIONS BOARD
An Agency of the United States Government
WE Wll. NOT refuse to negotiate and bargain
with United Mine Workers of America, District
No. 5, Local Union No. 1486, as the exclusive
collective-bargaining representative of our em-
ployees in the appropriate unit, with respect to
our decision to refuse paying accrued vacation
benefits due all of our striking employees. The
appropriate unit is:
All production and maintenance employees
employed by World Services Corporation
and/or Peggs Run Coal Company; and World
Services Corporation, Debtor in Possession, at
our Shippingport, Pennsylvania facility; ex-
cluding all office clerical employees and
guards, professional employees, and supervi-
sors as defined in the Act.
WE WIl l NOT refuse to pay accrued vacation
benefits due our striking employees or otherwise
discriminate against employees because of their
protected concerted activities.
Wt WillI. NOT in any like or related manner
interfere with, restrain, or coerce our employees
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, negotiate and bargain
collectively and in good faith with United Mine
Workers of America, District No. 5, Local Union
No. 1486, as the exclusive collective-bargaining
representative of our employees in the aforesaid
appropriate unit, with regard to our decision to
refuse to pay accrued vacation benefits due our
striking employees.
WE WILL make whole the following employees
for any losses in vacation benefits incurred by
them as a result of our refusal to pay accrued
vacation benefits, together with interest:
James D. Beachem
Robert C. Bollinger
Richard D. Burton
Harry A. Carson
Robert Lee Carson
Robert Lynn Carson
Asa V. Lemley
Daniel Logston
Sherman Tressler
Wilbert A. Weekley
Charles B. Wright
WORLD SERVICES CORPORATION AND/OR
PEGGS RUN COAL COMPANY; AND WORLD
SERVICES CORPORATION, DEBTOR IN
POSSESSION
1436