U S Trustee In Bankruptcy (Golden Shamrock Coal Co.)

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 342 (N.L.R.B. 1988)

342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
James Michael Shull, U S Trustee in Bankruptcy
(Golden Shamrock Coal Company ) and United
Mine Workers of America Cases 9-CA-24122
and 29-CA-24456
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed in Case 9-CA-24122 on
March 19 1987 by the Union United Mine Work
ers of America the General Counsel issued a com
plaint on May 5 1987 and an amended complaint
on June 29 1987 against Golden Shamrock Coal
Company the Respondent alleging that it had vio
lated Section 8(a)(1) and (5) of the National Labor
Relations Act On a charge filed in Case 9-CA-
24456 by the Union on July 1 1987 subsequently
amended on July 6 1987 the General Counsel
issued a consolidated second amended complaint
on August 4 1987 Thereafter the General Coun
sel issued a consolidated third amended complaint
on March 8 1988 The Respondent has filed two
answers in this action the first on June 22 and the
second on July 27 1987
On May 2 1988 the General Counsel filed a
Motion for Summary Judgment On May 3 1988
the Board issued an order transferring the proceed
ing 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 delegat
ed its authority in this proceeding to a three
member panel
Ruling on Motion for Summary Judgment
In its Motion for Summary Judgment the Gener
al Counsel contends that the Respondent has failed
to file an answer to the March 8 1988 consolidated
third amended complaint and that under Section
102 20 of the Boards Rules and Regulations the
Board should find the allegations of that complaint
to be true and issue an Order based on such find
ings I
We find summary judgment, as moved is not
proper under the circumstances of this case In so
1 The General Counsel indicates in her memorandum supporting the
motion that by letter dated March 25 1988 confirming a telephone con
versation on March 3 1988 the Respondents trustee in bankruptcy was
informed of the requirement to file an anwer to the consolidated third
amended complaint issued on March 8 1988 and was advised that if an
answer was not filed within 14 days a Motion for Summary Judgment
would be filed The General Counsel further asserts that the Respond
ent s trustee stated in the telephone conversation that he did not intend
to file an answer The basis for the refusal is not revealed in the record
finding we note that the motion filed by the Gen
eral Counsel is based entirely on the consolidated
third amended complaint dated March 8 1988
Neither the General Counsels motion nor its sup
porting papers contain any reference to the earlier
complaints or the answers filed in this action
The record shows that there are a total of four
complaints and two answers The Regional Direc
tor issued an initial complaint in this matter May 5
1987 alleging that the Respondent violated Section
8(a)(1) and (5) of the Act by failing to provide re
quired medical insurance coverage On June 22
1987 the Respondent filed an answer denying most
substantive allegations
The Regional Director then issued on June 29
1987 an amended complaint and order reschedul
ing hearing The sole difference from the previous
complaint is that a debtor in possession under chap
ter 11 of the Federal Bankruptcy Code is named as
the Respondent The Respondent filed a second
answer on July 27 1987 repeating the denials of
the first answer and denying the failure to remit
union dues collected from employees (The later
denial concerned allegations of the charges in Case
9-CA-24456 that had been filed and served after
the first answer but had not been included in the
amended complaint)
The Regional Director issued an order consols
dating cases and a conslidated second amended
complaint on August 4 1987 The sole difference
between this complaint and the amended complaint
is that this complaint adds the allegations regarding
the Respondents failure to remit collected union
dues an allegation that as noted, had already been
denied by the Respondent in its second answer
The Regional Director next issued an order con
solidating cases and a consolidated third amended
complaint2 on March 8 1988 which differed from
the consolidated second amended complaint only in
that it named a trustee in bankruptcy as the re
spondent Thus the Respondent in its second
answer denied all the violations alleged in the con
solidated third amended complaint Specifically
the Respondent has denied allegations that it has
failed to provide medical insurance coverage for its
employees that it has withheld union dues from its
employees and failed to remit such funds to the
Union and that it has committed any unfair labor
practices By those denials the Respondent has
raised litigable issues 3 In ruling as we do we reit
2 The consolidated third amended complaint contains no references to
the original complaint or the answers filed in this action
S There is no indication that the Respondent withdrew its answers at
any time Consequently we are unwilling to construe the Respondents
trustees stated intent to file no answer to the consolidated third amended
complaint as meaning that the Respondent was no longer contesting this
matter
291 NLRB No 49
JAMES MICHAEL SHULL 343
erate that the only differences between the several
complaints is the added charge of withholding
union dues and the Respondents changing status
in bankruptcy 4
In addition we note that the General Counsel s
motion does not indicate why the earlier answers
were insufficient Therefore because the Respond
ent s timely filed answers respond to the substan
tive issues raised by the complaints and in the ab
sence of any explanation that would warrant disre
garding these answers we find it inappropriate to
grant the General Counsels Motion for Summary
Judgment Nottingham Restaurant 243 NLRB 567
(1979) Auburn Die Co 282 NLRB 1044 (1987)
Marko Contractors, 269 NLRB 990 (1984)
ORDER
4 A respondents entrance into bankruptcy either as a debtor in posses
Sion or as a trustee and the distinctions between the latter administrators
in bankruptcy proceedings have no effect on the identity of the respond
ent originally charged in our proceedings with committing unfair labor
practices and hence have no effect in and of themselves on answers al
ready filed on its behalf See Jersey Juniors, Inc 230 NLRB 329 332
(1977) See also Ohio Container Service 277 NLRB 305 306 (1985)
It is ordered that the General Counsels Motion
for Summary Judgment is denied
IT IS FURTHER ORDERED that these proceedings
are remanded to the Regional Director for Region
9 for further appropriate action