MCCLAY ENERGY, INC.

National Labor Relations Board - Board Decisions

Aug 19, 2016

364 NLRB No. 83 (N.L.R.B. 2016)

364 NLRB No. 83
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.
McClay Energy, Inc. and United Mine Workers of
America, District 17. Case 09–CA–168156
August 19, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and an
amended charge filed by United Mine Workers of Amer-
ica (the Union) on January 22 and April 15, 2016, re-
spectively, the General Counsel issued a complaint on
April 15, 2016, against McClay Energy, Inc. (the Re-
spondent), alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. The Re-
spondent failed to file an answer.
On May 12, 2016, the General Counsel filed a Motion
for Default Judgment with the Board.1 Thereafter, on
May 13, 2016, 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 Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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. In addition, the complaint affirmatively stated
that unless an answer was received by April 29, 2016, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the complaint are true. Fur-
ther, the undisputed allegations in the General Counsel’s
motion disclose that by letter dated May 5, 2016, the
Region advised the Respondent that unless an answer
was filed by May 10, 2016, a motion for default judg-
ment would be filed. The Respondent again failed to file
an answer.2

1 On June 24, 2016, the General Counsel submitted a supplement to
his motion for default judgment with information related to the service
of documents in this case.
2 The motion for default judgment and the supplement to the motion
indicate that the charge and amended charge were served by regular
mail to the address of the Respondent’s registered agent and incorpora-
tor in Kentucky, as that address is listed in the records maintained by
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Gen-
eral 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 June 16, 2015, and
continuing to date, the Respondent has been a corpora-
tion with an office in Auxier, Kentucky, and has been
engaged in the mining of coal at its facility in Hensley,
West Virginia.
During the calendar year ending December 31, 2015,
the Respondent, in conducting its operations, purchased
and received at its Hensley, West Virginia facility goods
valued in excess of $50,000 directly from 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
At all material times, Nathan Bentley has held the po-
sition of the Respondent’s president and has been an
agent of the Respondent within the meaning of Section
2(13) of the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production and
maintenance employees employed by the Respondent
at its Route 7, Hensley, West Virginia, Westchester
Mine facility, but excluding all contract employees, all

the Kentucky Secretary of State. The complaint was served by certified
mail to the address of the Respondent’s registered agent in Kentucky,
and tracking information provided by the U.S. Postal Service shows
that document was unclaimed. In addition, the motion for default
judgment was served by mailing copies by regular mail to the address
of the Respondent’s registered agent in Kentucky and also by electronic
mail to the Respondent. There is no indication that any of the docu-
ments sent to the Respondent by regular mail or electronic mail were
returned.
It is well settled that a respondent’s failure or refusal to accept certi-
fied mail or to provide for receiving appropriate service cannot serve to
defeat the purposes of the Act. See Cray Construction Group, LLC,
341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247,
247 fn. 2 (2003). Further, the failure of the postal service to return
documents served by regular mail indicates actual receipt of those
documents by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649,
650 (1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir.
1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
office clerical employees, and all professional employ-
ees, guards and supervisors as defined in the Act.
Since about September 23, 2015, and at all material
times, the Respondent has recognized the Union as the
exclusive collective-bargaining representative of the unit.
This recognition is embodied in a letter dated September
23, 2015.
About October 13, 2015, the Union, by letter, request-
ed that the Respondent bargain collectively with it as the
exclusive collective-bargaining representative of the unit.
Since about November 30, 2015, the Respondent has
failed and refused to bargain with the Union.
About September 24, 2015, the Respondent ceased op-
erations and laid-off unit employees. The Respondent
engaged in such conduct without prior notice to the Un-
ion and without affording the Union an opportunity to
bargain over the effects of this conduct on unit employ-
ees. The effects of the Respondent’s cessation of opera-
tions and laying off of unit employees relate to wages,
hours, and other terms and conditions of employment of
the unit and are mandatory subjects for the purposes of
collective bargaining.3
Since about October 13, 2015, the Union has request-
ed, in writing, that the Respondent furnish the Union
with the following information: (1) copies of both Feder-
al and State mining permits for McClay Energy’s opera-
tional control of the Westchester Mine; (2) a copy of the
insurance policy or other document confirming that
McClay Energy has Workers Compensation coverage for
the employees at the Westchester Mine; (3) a copy of the
Wage Bond posted with the West Virginia Division of
Labor covering the employees of McClay Energy and the
Westchester Mine; and (4) a roster of all the employees
(along with their contact information, i.e., addresses,
phone numbers, job titles and hire or recall dates) who
are working or who have ever worked for McClay Ener-
gy at Westchester Mine since May 2015.

3 Although the complaint alleges that the Respondent’s cessation of
operations and laying off of unit employees are mandatory subjects of
bargaining, we need not address those allegations because there is no
allegation that the failure to bargain about the decision to cease opera-
tions violates the Act. Instead, the complaint specifically alleges only
that the Respondent violated the Act by failing to give notice and afford
the Union an opportunity to bargain about the effects of that conduct.
The Board has repeatedly found that the effect of such decisions on unit
employees is a mandatory bargaining subject. See Kohler & Sons, Inc.,
355 NLRB 221, 222 fn. 3 (2010); Nick & Bob Partners, 340 NLRB
1196, 1198 fn. 2 (2003). Accordingly, we find that the complaint sup-
ports a cause of action as to the failure to bargain over the effects of the
Respondent’s decision to cease its operations and lay off unit employ-
ees.
Since October 13, 2015, the Respondent has failed to
furnish the Union with the requested information de-
scribed above.
Since about November 6, 2015, the Union has request-
ed, by email, that the Respondent furnish: (1) the infor-
mation it requested on October 13, 2015; (2) a detailed
explanation of the Respondent’s plans (including a time
table) for the resumption of mining operations at the
Westchester Mine; (3) a statement of any business justi-
fication for the cessation of operations; and (4) identities
of all persons who have performed work of any kind at
the mine since cessation of operations and list of work
performed.
Since November 6, 2015, the Respondent has failed to
furnish the Union with the requested information de-
scribed above.
The information requested by the Union on October 13
and November 6, 2015, is necessary for, and relevant to,
the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the Union as the exclusive collective-
bargaining representative of its unit employees in viola-
tion of Section 8(a)(5) and (1) of the Act. The Respond-
ent’s unfair labor practices described above 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, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of its decision to cease
operations at its facility in Hensley, West Virginia, we
shall order the Respondent to bargain with the Union, on
request, about the effects of its decision. As a result of
the Respondent’s unlawful conduct, however, the unit
employees have been denied an opportunity to bargain
through their collective-bargaining representative at a
time when the Respondent might still have been in need
of their services and a measure of balanced bargaining
power existed. Meaningful bargaining cannot be assured
until some measure of economic strength is restored to
the Union. A bargaining order alone, therefore, cannot
serve as an adequate remedy for the unfair labor practices
committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
MCCLAY ENERGY, INC. 3
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Re-
spondent to pay backpay to the unit employees in a man-
ner similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified by Melody
Toyota, 325 NLRB 846 (1998).
Thus, the Respondent shall pay its unit employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects per-
taining to the effects of its decision to cease operations of
its facility on the unit employees; (2) a bona fide impasse
in bargaining; (3) the Union’s failure to request bargain-
ing within 5 business days after receipt of this Decision
and Order, or to commence negotiations within 5 busi-
ness days after receipt of the Respondent’s notice of its
desire to bargain with the Union; or (4) the Union’s sub-
sequent failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which the Respondent ceased operations of
its facility in Hensley, West Virginia, to the time they
secured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner. However, in no
event shall this sum be less than the employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last in the Respondent’s employ. Back-
pay shall be based on earnings which the unit employees
would normally have received during the applicable pe-
riod, less any net interim earnings, and shall be computed
in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest as prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). Additional-
ly, we shall order the Respondent to compensate unit
employees for any adverse tax consequences of receiving
lump-sum backpay awards and to file a report with the
Regional Director for Region 9 allocating backpay to the
appropriate calendar years for each employee, in accord-
ance with AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016).
Having found that the Respondent violated Section
8(a)(5) and (1) by failing and refusing to furnish the Un-
ion with relevant and necessary information requested on
October 13 and November 6, 2015, we shall order the
Respondent to provide the Union with the requested in-
formation.
Finally, in view of the fact that the Respondent’s oper-
ations in Hensley, West Virginia, have ceased, we shall
order the Respondent to mail a copy of the attached no-
tice to the Union and to the last known addresses of its
former unit employees who were employed at any time
since September 24, 2015, in order to inform them of the
outcome of this proceeding.4
ORDER
The National Labor Relations Board orders that the
Respondent, McClay Energy, Inc., Hensley, West Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Failing and refusing to bargain collectively and in
good faith with the United Mine Workers of America,
District 17, as the exclusive collective-bargaining repre-
sentative of employees in the following appropriate unit
with respect to the effects of its decision to cease opera-
tions at its Hensley, West Virginia facility:
All full-time and regular part-time production and
maintenance employees employed by the Respondent
at its Route 7, Hensley, West Virginia, Westchester
Mine facility, but excluding all contract employees, all
office clerical employees, and all professional employ-
ees, guards and supervisors as defined in the Act.
(b) Failing and refusing to provide the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its functions as the exclusive
collective-bargaining representative of the unit.
(c) 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) On request, bargain collectively and in good faith
with the Union concerning the effects of its decision to
cease operations at its Hensley, West Virginia facility,
and reduce to writing and sign any agreement reached as
a result of such bargaining.
(b) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision,
with interest.
(c) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay

4 Because the Respondent has ceased operations at its Hensley,
West Virginia facility, we need not address the complaint’s request for
a notice-reading remedy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
awards, and file with the Regional Director for Region 9,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Furnish to the Union in a timely manner the infor-
mation requested by the Union on October 13 and No-
vember 6, 2015.
(f) 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”5 to the Union
and to all unit employees who were employed by the
Respondent at the time that it ceased operations at its
Hensley, West Virginia facility on September 24, 2015.
In addition to the physical mailing of paper notices, no-
tices shall be distributed electronically, such as by email,
posting on an intranet or internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps the Respondent has taken to
comply.
Dated, Washington, D.C. August 19, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member

5 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 Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 Federal labor law and has ordered us to mail 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
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the United Mine Workers of
America, District 17, as the exclusive collective-
bargaining representative of our unit employees set forth
below, with respect to the effects of our decision to cease
operations at our Hensley, West Virginia facility:
All full-time and regular part-time production and
maintenance employees employed by us at our Route
7, Hensley, West Virginia, Westchester Mine facility,
but excluding all contract employees, all office clerical
employees, and all professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT fail and refuse to provide the Union with
requested information that is relevant and necessary to
the Union’s performance of its functions as the exclusive
collective-bargaining representative of the unit.
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, on request, bargain collectively and in good
faith with the Union concerning the effects of our deci-
sion to cease operations at our Henley, West Virginia
facility, and WE WILL reduce to writing and sign any
agreement reached as a result of such bargaining.
WE WILL pay our unit employees their normal wages
for the period set forth in the remedy section of the
Board’s decision, with interest.
WE WILL compensate our affected employees for any
adverse tax consequences, if any, of receiving lump-sum
MCCLAY ENERGY, INC. 5
backpay awards, and WE WILL file with the Regional Di-
rector for Region 9, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay to the ap-
propriate calendar years for each employee.
WE WILL furnish the Union in a timely manner the in-
formation it requested on October 13 and November 6,
2015.
MCCLAY ENERGY, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/09-CA-168156 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street SE, Washington, DC 20570,
or by calling (202) 273–1940.