Raleigh Boone Trucking

National Labor Relations Board - Board Decisions

Apr 30, 1997

323 N.L.R.B. 102 (N.L.R.B. 1997)

1
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.
Raleigh Boone Trucking, Inc. and United Mine
Workers of America, District 17, AFL–CIO.
Case 9–CA–34055
April 30, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge and amended charge filed by the
Union on July 26 and November 22, 1996, the General
Counsel of the National Labor Relations Board issued
a complaint on December 5, 1996, against Raleigh
Boone Trucking, Inc., the Respondent, alleging that it
has violated Section 8(a)(1) and (5) of the National
Labor Relations Act. Although properly served copies
of the charge, amended charge, and complaint, the Re­
spondent failed to file an answer.
On April 7, 1997, the General Counsel filed a Mo­
tion for Summary Judgment with the Board. On April
9, 1997, 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 undisputed.
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 March 13, 1997,
notified the Respondent and its bankruptcy attorney
that unless an answer were received by March 19,
1997, a Motion for Summary Judgment would be filed.
Although the Respondent is in bankruptcy,1 it is
well established that the institution of bankruptcy pro­
ceedings does not deprive the Board of jurisdiction or
authority to entertain and process an unfair labor prac­
tice case to its final disposition. Phoenix Co., 274
NLRB 995 (1985). Board proceedings fall within the
exception to the automatic stay provisions for proceed-
1 The General Counsel’s motion indicates that the Respondent filed
Chapter 11 Bankruptcy on July 22, 1996, and converted to Chapter
7 Bankruptcy on December 13, 1996.
ings by a governmental unit to enforce its police or
regulatory powers. See id., and cases cited therein.
Accordingly, in the absence of good cause being
shown for the failure to file a timely answer, we grant
the 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 hauling coal in and around
Whitesville, West Virginia. During the 12-month pe­
riod preceding issuance of the complaint, the Respond­
ent, in conducting its business operations, derived
gross revenues in excess of $50,000 for services pro­
vided to Long Branch Energy, a nonretail enterprise
located within the State of West Virginia, which, in
turn, during the same time period, in conducting its
coal mining operations, purchased and received goods
valued in excess of $50,000 at its West Virginia facili­
ties directly from points outside the State of West Vir­
ginia. We find that the Respondent is an employer en-
gaged 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 described in article 1A of the Na­
tional Bituminous Coal Wage Agreement of 1993 con­
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act. Since about April 1, 1994, and at all material
times, the Union has been the designated exclusive
collective-bargaining representative of the unit, and
since then the Union has been recognized as the rep­
resentative by the Respondent. This recognition has
been embodied in successive collective-bargaining
agreements between the Respondent and the United
Mine Workers of America on behalf of its locals and
districts, including the Union, the most recent of which
is effective from May 24, 1996, to August 1, 1998. At
all times since April 1, 1994, based on Section 9(a) of
the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
About May 1996 the Respondent ceased providing
its employees with health insurance and ceased paying
vacation and sick day benefits to its employees. These
subjects relate to wages, hours, and other terms and
conditions of employment of the unit and are manda­
tory subjects for the purposes of collective bargaining.
The Respondent engaged in this conduct without prior
notice to the Union and without affording the Union
an opportunity to bargain with the Respondent with re­
spect to this conduct and the effects of this conduct.
323 NLRB No. 102
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
By the acts and conduct described above, the Re­
spondent has been failing and refusing to bargain col­
lectively with the exclusive collective-bargaining rep­
resentative of its employees and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) 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
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 unilaterally ceasing to pro-
vide health insurance for its unit employees, we shall
order the Respondent to restore the employees’ health
insurance coverage and make the employees whole by
reimbursing them for any expenses ensuing from the
Respondent’s unlawful conduct, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Furthermore, having found that the Respondent vio­
lated Section 8(a)(5) and (1) by unilaterally ceasing to
pay vacation and sick day benefits to the unit employ­
ees, we shall order the Respondent to make the unit
employees whole for any loss of earnings attributable
to its unlawful conduct. Backpay shall be computed in
accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as prescribed in New Horizons for the Re­
tarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Raleigh Boone Trucking, Inc.,
Whitesville, West Virginia, its officers, agents, succes­
sors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain with United Mine
Workers of America, District 17, AFL–CIO as the ex­
clusive representative of the following employees by
unilaterally failing to provide the unit employees with
health insurance or failing to pay them vacation and
sick day benefits:
The employees described in article 1A of the Na­
tional Bituminous Coal Wage Agreement of 1993.
(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 unit employees’ health insurance
coverage and make the employees whole for any ex­
penses or loss of earnings ensuing from the Respond­
ent’s unlawful failure to provide the unit employees
with health insurance coverage and pay them vacation
and sick day benefits, since about May 1996, as set
forth in the remedy section of this decision.
(b) 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.
(c) Within 14 days after service by the Region, post
at its facility in Whitesville, West Virginia, copies of
the attached notice marked ‘‘Appendix.’’2 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 July 26, 1996.
(d) 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. April 30, 1997
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
������������������
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
2 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.’’
RALEIGH BOONE TRUCKING 3
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 or refuse to bargain with United
Mine Workers of America, District 17, AFL–CIO, as
the exclusive representative of the following unit em­
ployees by unilaterally ceasing to provide the unit em­
ployees with health insurance or failing to pay them
vacation and sick day benefits:
The employees described in article 1A of the Na­
tional Bituminous Coal Wage Agreement of 1993.
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 our unit employees’ health insur­
ance coverage and make the employees whole by reim­
bursing them for any expenses ensuing from our un­
lawful cessation of coverage and for any loss of earn­
ings attributable to our unlawful failure to pay them
vacation and sick day benefits, since about May 1996,
as set forth in a decision of the National Labor Rela­
tions Board.
RALEIGH BOONE TRUCKING, INC.