Dandy Mining, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 185 (N.L.R.B. 1998)

1
325 NLRB No. 185
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Dandy Mining, Inc. and Local Union 5921, District
17, United Mine Workers of America. Case 9–
CA–35648
June 30, 1998
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
Upon a charge filed by the Union on January 15,
1998, the Acting General Counsel of the National
Labor Relations Board issued a complaint on April 30,
1998, against Dandy Mining, Inc., the Respondent, al-
leging that it has violated Section 8(a)(1) and (5) of
the National Labor Relations Act. Although properly
served copies of the charge and complaint, the Re-
spondent failed to file an answer.
On June 8, 1998, the Acting General Counsel filed
a Motion for Summary Judgment with the Board. On
June 10, 1998, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated May 20, 1998,
notified the Respondent that unless an answer were re-
ceived by June 1, 1998, a Motion for Summary Judg-
ment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the Acting
General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the mining of coal in Logan
County, West Virginia, near the town of Starit, West
Virginia. During the 12-month period preceding issu-
ance of the complaint, the Respondent, in conducting
its business operations, sold and shipped from its
Logan County, West Virginia facility goods valued in
excess of $50,000 directly to enterprises located within
the State of West Virginia, each of which, in turn, sold
and shipped from their respective West Virginia facili-
ties 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(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
The employees of the Respondent described in arti-
cle IA of the National Bituminous Coal Wage Agree-
ment of 1993 constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act. Since about January 20, 1997,
the Union has been the designated exclusive collective-
bargaining representative of the unit and since then the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in a
collective-bargaining agreement (National Bituminous
Coal Wage Agreement of 1993) between certain coal
operators and the United Mine Workers of America on
behalf of its districts and locals including the Union,
effective from January 20, 1997, through August 1,
1998, to which the Respondent has agreed to be
bound. Since about January 20, 1997, based on Section
9(a) of the Act, the Union has been the exclusive col-
lective-bargaining representative of the unit.
From about October 1, 1997, to April 1, 1998, the
Respondent has failed to continue in effect all of the
terms and conditions of the National Bituminous Coal
Wage Agreement of 1993 by failing to provide appro-
priate medical insurance and to pay the medical ex-
penses of the unit employees. These terms and condi-
tions of employment are mandatory subjects for the
purposes of collective bargaining. The Respondent en-
gaged in this conduct without the Union’s consent.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees within
the meaning of Section 8(d) of the Act, and has there-
by engaged in unfair labor practices affecting com-
merce 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
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.’’
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing, from October 1,
1997, to April 1, 1998, to maintain contractually re-
quired health insurance for its unit employees and to
pay their medical expenses, we shall order the Re-
spondent to restore the employees’ health insurance
coverage and any other contractually required medical
coverage and make the employees whole by reimburs-
ing them for any expenses ensuing from the Respond-
ent’s unlawful conduct, as set forth in Kraft Plumbing
& Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Dandy Mining, Inc., Logan County, West
Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to continue in effect all of the terms and
conditions of the National Bituminous Coal Wage
Agreement of 1993 by failing to provide appropriate
medical insurance and to pay the medical expenses of
the unit employees.
(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) Restore the health insurance coverage and any
other contractually required medical coverage for the
following unit employees:
The employees of the Respondent described in ar-
ticle IA of the National Bituminous Coal Wage
Agreement of 1993.
(b) Make the unit employees whole in the manner
set forth in the remedy section of this decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment 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) Within 14 days after service by the Region, post
at its facility in Logan County, West Virginia, copies
of the attached notice marked ‘‘Appendix.’’1 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since October 1, 1997.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. June 30, 1998
llllllllllllllllll
Wilma B. Liebman, Member
llllllllllllllllll
Peter J. Hurtgen, Member
llllllllllllllllll
J. Robert Brame III, 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to continue in effect all of the
terms and conditions of the National Bituminous Coal
Wage Agreement of 1993 by failing to provide appro-
priate medical insurance and to pay the medical ex-
penses of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL restore the health insurance coverage and
any other contractually required medical coverage for
3DANDY MINING
the following unit employees’ and WE WILL make them
whole, with interest.
All our employees described in article IA of the
National Bituminous Coal Wage Agreement of
1993.
DANDY MINING, INC.