COBALT COAL CORP. MINING, INC.

National Labor Relations Board - Board Decisions

Dec 18, 2018

367 NLRB No. 45 (N.L.R.B. 2018)

367 NLRB No. 45
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cobalt Coal Corp. Mining, Inc. and United Mine
Workers of America, AFL–CIO. Cases 09–CA–
092229, 09–CA–095354, and 09–CA–096073
December 18, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On May 24, 2013, the Board issued a Decision and Or-
der in this proceeding, which is reported at 359 NLRB
No. 123. At the time of the Decision and Order, the com-
position of the National Labor Relations Board included
two persons whose appointments to the Board had been
challenged as constitutionally infirm. On June 26, 2014,
the United States Supreme Court issued its decision in
NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding
that the challenged appointments to the Board were not
valid. On June 22, 2018, the General Counsel filed a mo-
tion seeking to vacate the Board’s May 24, 2013 Decision
and Order, and upon de novo review of the General Coun-
sel’s motion for default judgment, to reissue the Decision
and Order.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we grant the General Counsel’s
motion to vacate the Board’s May 24, 2013 Decision and
Order. We shall now consider de novo the General Coun-
sel’s Motion for Default Judgment.
The General Counsel seeks a default judgment in this
case on the ground that Cobalt Coal Corp. Mining, Inc.
(the Respondent) has failed to file an answer to the order
consolidating cases, consolidated complaint, compliance
specification and notice of hearing (consolidated com-
plaint and compliance specification). Upon a charge and
first and second amended charges filed by United Mine
Workers of America, AFL–CIO (the Union) in Case 09–
CA–092229, on October 29 and December 7, 2012, and
January 29, 2013, respectively; a charge and amended
charge filed in Case 09–CA–095354, on December 20,
2012, and January 29, 2013, respectively; and a charge
filed in Case 09–CA–096073, on January 9, 2013; the
General Counsel issued the consolidated complaint and

1 Although the answer to the compliance specification was not due as
of this March 11 deadline, the Region subsequently provided the Re-
spondent with the required time to file an answer to the compliance spec-
ification, as well as a further extension.
compliance specification, on February 25, 2013, against
the Respondent. The Respondent failed to file an answer.
On April 3, 2013, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on April
4, 2013, the Board issued an order transferring the pro-
ceeding 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 un-
disputed.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is shown.
Similarly, Section 102.56 of the Board’s Rules and Regu-
lations provides that the allegations in a compliance spec-
ification will be taken as true if an answer is not filed
within 21 days from service of the compliance specifica-
tion. In addition, the consolidated complaint and compli-
ance specification affirmatively stated that unless an an-
swer was received by March 11, 2013, the Board may find,
pursuant to a motion for default judgment, that the allega-
tions in the consolidated complaint and compliance spec-
ification are true.1 Further, the undisputed allegations in
the General Counsel’s motion disclose that the Region, by
letter dated March 19, 2013, notified the Respondent that
unless an answer was received by March 25, 2013, a mo-
tion for default judgment would be filed. On March 26,
2013, the Respondent, by its owner and president Michael
Crowder, sent an e-mail letter to the Region stating that it
was insolvent and unable to afford counsel or file an an-
swer. By letter dated March 28, 2013, the Region in-
formed the Respondent that legal counsel was not required
to file an answer, and encouraged the Respondent to file
an answer. The Respondent did not reply to that letter or
file an answer.
Although the Board has shown some leniency toward
respondents who proceed without the benefit of counsel,
the Board has consistently held that pro se status alone
does not establish a good cause explanation for failing to
file an answer. See, e.g., Patrician Assisted Living Facil-
ity, 339 NLRB 1153, 1153 (2003); Sage Professional
Painting Co., 338 NLRB 1068, 1068 (2003). Here, the
Respondent never filed an answer and it offered no good
cause explanation for its failure to do so, despite being re-
minded that its answer was due and told that counsel was
not necessary to file an answer.2
2 The consolidated complaint and compliance specification indicates
that the Respondent ceased operations on November 7, 2012. It is also
well established that a respondent’s cessation of operations does not ex-
cuse it from filing an answer to a complaint or a compliance specifica-
tion. See, e.g., OK Toilet & Towel Supply, Inc., 339 NLRB 1100, 1100–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Accordingly, in the absence of good cause being shown
for the failure to file an answer, we grant the General
Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times since about March 8, 2010, at
which time the Respondent commenced its operations,
and continuing to date, the Respondent has been a corpo-
ration with an office in Premier, West Virginia, and has
been engaged in the mining of coal at its facility in Hens-
ley, West Virginia.
In conducting its operations during the 12-month period
ending November 7, 2012, the Respondent sold and
shipped from its Hensley, West Virginia facility goods
valued in excess of $50,000 directly to Alpha Natural Re-
sources, Inc., which operates a coal preparation plant lo-
cated in the State of West Virginia, and is an enterprise
directly engaged in interstate commerce that shipped
goods valued in excess of $50,000 directly to points lo-
cated outside the State of West Virginia.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(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
At all material times, the following individuals held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the mean-
ing of Section 2(11) of the Act and agents of the Respond-
ent within the meaning of Section 2(13) of the Act:
Daniel Smith - Superintendent
JC Woolridge - Out-by Foreman
Clayton Van Roberts - Mine Foreman
The Respondent engaged in the following conduct:
1. About September 24, 2012, the Respondent, by JC
Woolridge, at its Hensley, West Virginia facility:
(a) By telling an employee that the Respondent knew
what the employees were doing about the Union, created
an impression among the Respondent’s employees that
their union activities were under surveillance by the Re-
spondent.
(b) Interrogated an employee about the employee’s un-
ion activities.
2. About October 15, 2012, the Respondent, by Daniel
Smith, at its Hensley, West Virginia facility:

1101 (2003); Dong-A Daily North America, 332 NLRB 15, 15–16
(2000); Holt Plastering, Inc., 317 NLRB 451, 451 (1995) (respondent
was not excused from filing an answer to compliance specification, even
(a) By telling an employee that he knew which employ-
ees were the leaders of the Union, created an impression
among its employees that their union activities were under
surveillance by the Respondent.
(b) Interrogated an employee about which employees
signed union authorization cards.
3. About October 25, 2012, the Respondent, by JC
Woolridge, at its Hensley, West Virginia facility, interro-
gated an employee about employees’ involvement in a pe-
tition supporting the Union.
4. About October 25, 2012, the Respondent, by Daniel
Smith, at its Hensley, West Virginia facility, interrogated
an employee about which employees were attempting to
form a union.
5. About November 1, 2012, the Respondent, by Daniel
Smith, at its Hensley, West Virginia facility:
(a) Threatened an employee that the Respondent would
shut down the mine if employees voted in the Union.
(b) Interrogated an employee about whether the em-
ployee signed a union card.
6. About November 7, 2012, the Respondent, by Daniel
Smith, at its Hensley, West Virginia facility:
(a) Interrogated an employee about how the employee
voted in the election.
(b) Interrogated employees about who voted for the Un-
ion during the election.
(c) By telling employees that the Respondent knew
which employees did not vote for the Union, created an
impression among its employees that their union activities
were under surveillance by the Respondent.
(d) Told employees that they were being sent home
prior to the completion of their work shift because the em-
ployees voted in favor of the Union.
7. About November 7, 2012, the Respondent, by Clay-
ton Van Roberts, at its Hensley, West Virginia facility, in-
terrogated an employee about how the employees voted in
the election.
8. Starting about October 22, 2012, the Respondent re-
fused to recall and/or assign work to its employee Johnny
Simms.
9. About November 7, 2012, the Respondent sent home
the following employees prior to the completion of their
work shift:
(i) Eddie Branch
(ii) Bruce Blankenship
(iii) William Mullins
(iv) Fred Coleman
(v) Danny Smith
though the respondent notified the Board it had “ceased operations and
liquidated the plant facilities”).
COBALT COAL CORP. MINING, INC. 3
10. The Respondent engaged in the conduct described
in paragraphs 8 and 9 because the named employees of the
Respondent formed, joined or assisted the Union and en-
gaged in concerted activities, and to discourage employees
from engaging in these activities.
CONCLUSIONS OF LAW
1. By the conduct described in paragraphs 1 through 7,
the Respondent has been interfering with, restraining, and
coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act in violation of Section 8(a)(1)
of the Act.
2. By the conduct described in paragraphs 8 through 10,
the Respondent has been discriminating in regard to the
hire or tenure or terms and conditions of employment of
its employees, thereby discouraging membership in a la-
bor organization in violation of Section 8(a)(3) and (1) of
the Act.
3. The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and (1)
by refusing to recall and/or assign work to an employee
and by sending employees home prior to the completion
of their work shift because the employees formed, joined
or assisted the Union and engaged in concerted activities,
and to discourage employees from engaging in these ac-
tivities, we shall order the Respondent to make whole
Johnny Simms, Bruce Blankenship, Eddie Branch, Fred
Coleman, William Mullins, and Danny Smith for any loss
of earnings and other benefits suffered as a result of its
discrimination against them by paying them the amounts
set forth in the compliance specification, with interest ac-
crued to the date of payment, as prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010), and minus tax withholdings required by Federal
and State laws.3
Additionally, we shall order the Respondent to compen-
sate Simms, Blankenship, Branch, Coleman, Mullins, and
Smith for the adverse tax consequences, if any, of receiv-
ing a lump-sum backpay award and to file a report with
the Regional Director for Region 9 allocating the backpay

3 As to the Respondent’s claim that it is insolvent, the Respondent’s
financial resources have no bearing on the question of the calculation of
gross backpay due to the discriminatees. What is relevant now is the
amount due, not the Respondent’s ability to pay. See Scotch & Sirloin
award to the appropriate calendar years for each em-
ployee. AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016).
The Respondent shall also be required to remove from
its files any reference to the unlawful refusal to recall
and/or assign work to Simms and the unlawful sending
home of Blankenship, Branch, Coleman, Mullins, and
Smith prior to the completion of their work shift, and to
notify them in writing that this has been done and that the
refusal to recall and/or assign work and sending home
prior to the completion of their work shift will not be used
against them in any way.
Finally, in view of the fact that the Respondent ceased
operations on November 7, 2012, we shall order the Re-
spondent to mail a copy of the attached notice to the Union
and to the last known addresses of its former employees
who were employed at any time since September 24, 2012,
in order to inform them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Cobalt Coal Corp. Mining, Inc., Premier and
Hensley, West Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concerted
activities.
(b) Coercively interrogating employees about their or
their coworkers’ union activities, sympathies, or support.
(c) Threatening employees with closure of the mine if
they select the Union as their collective-bargaining repre-
sentative.
(d) Telling employees that they are being sent home
prior to the completion of their work shift because the em-
ployees selected the Union as their collective-bargaining
representative.
(e) Refusing to recall and/or assign work to employees
because the employees formed, joined, or assisted the Un-
ion, or engaged in protected concerted activities, and to
discourage employees from engaging in these activities.
(f) Sending home employees prior to the completion of
their work shift because the employees formed, joined, or
assisted the Union, or engaged in protected concerted ac-
tivities, and to discourage employees from engaging in
these activities.
Restaurant, 287 NLRB 1318, 1320 (1988). Therefore, the Respondent’s
financial situation is not a basis for denying the General Counsel’s mo-
tion. See E.L.C. Electric, 348 NLRB 301, 302 fn. 6 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(g) In any like or related manner interfering with, re-
straining, 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) Make whole the following employees for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, by paying them the amounts
opposite their names, plus interest accrued to the date of
payment and minus tax withholdings required by Federal
and State laws, as set forth in the remedy section of this
Decision:
Johnny Simms $ 1600
Bruce Blankenship $ 120
Eddie Branch $ 130
Fred Coleman $ 104
William Mullins $ 100
Danny Smith $ 130
TOTAL BACKPAY: $ 2184
(b) Compensate Simms, Blankenship, Branch, Cole-
man, Mullins, and Smith for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 9, within
21 days from the date of this Order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to recall
and/or assign work to Simms and the unlawful sending
home of Blankenship, Branch, Coleman, Mullins, and
Smith prior to the completion of their work shift, and
within 3 days thereafter, notify them in writing that this
has been done and that the refusal to recall and/or assign
work and sending home prior to the completion of their
work shift will not be used against them in any way.
(d) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”4 to the Union and
to all employees who were employed by the Respondent
at any time since September 24, 2012. In addition to phys-
ical mailing of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the National
Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the
responsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. December 18, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) 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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT create the impression among our employ-
ees that your union activities are under surveillance.
WE WILL NOT interrogate you about your or your
coworkers’ union activities, sympathies, or support.
WE WILL NOT threaten you with closure of the mine if
you select the Union as your collective-bargaining repre-
sentative.
WE WILL NOT tell you that you are being sent home prior
to the completion of your work shift because you selected
the Union as your collective-bargaining representative.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
COBALT COAL CORP. MINING, INC. 5
WE WILL NOT refuse to recall and/or assign work to you
because you formed, joined, or assisted the Union, or en-
gaged in protected concerted activities.
WE WILL NOT send you home prior to the completion of
your work shift because you formed, joined, or assisted
the Union, or engaged in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make whole employees Johnny Simms, Bruce
Blankenship, Eddie Branch, Fred Coleman, William Mul-
lins, and Danny Smith for any loss of earnings and other
benefits suffered as a result of our unlawful discrimination
against them, paying them the amounts set forth in the
Board’s Order, plus interest.
WE WILL compensate employees Johnny Simms, Bruce
Blankenship, Eddie Branch, Fred Coleman, William Mul-
lins, and Danny Smith for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and WE
WILL file with the Regional Director for Region 9, within
21 days of the date of the Board’s Order, a report allocat-
ing the backpay awards to the appropriate calendar years
for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
refusal to recall and/or assign work to Johnny Simms and
the unlawful sending home of Bruce Blankenship, Eddie
Branch, Fred Coleman, William Mullins, and Danny
Smith prior to the completion of their work shift, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the refusal to recall and/or as-
sign work and sending them home prior to the completion
of their work shift will not be used against them in any
way.
COBALT COAL CORP. MINING, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/09-CA-092229 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street S.E., Washington, D.C.
20570, or by calling (202) 273-1940.