Hiysota Fuel Co., Inc. And Hiysota Fuel Co., Inc., And/Or J.R. Sales, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1987

287 N.L.R.B. 1 (N.L.R.B. 1987)

HIYSOTA FUEL CO 1
Hiysota Fuel Co., Inc ., and Hiysota Fuel Co., Inc.,
Debtor-in-Possession, and Mark Gregg, Trustee
in Bankruptcy and/or J.R. Sales , Inc. and
United Mine Workers of America and its Local
1023. Cases 6-CA-15852, 6-CA-15944, 6-CA-
16206
8 December 1987
ORDER GRANTING MOTION AND
SUBSTITUTING SUPPLEMENTAL
DECISION AND ORDER
BY MEMBERS BABSON , STEPHENS, AND
CRACRAFT
On 31 July 1987 the Board issued a Supplemen-
tal Decision and Order' in which it granted the
General Counsel's motion to strike Respondent
J.R. Sales' answer to paragraphs 1, 2, 3, 4, 6, 7, and
8 of the backpay specification, and granted the
General Counsel's Motion for Summary Judgment.
On 10 August 1987 J.R. Sales (the Respondent)
filed a motion to reconsider the Supplemental De-
cision and Order. The General Counsel filed an op-
position to the Respondent's motion.
The Respondent requests that the Board recon-
sider its Supplemental Decision and Order because
its amended answer, which the Respondent sent to
the Office of the Chief Administrative Law
Judge, 2 was not considered by the Board. In addi-
tion , the Respondent states, inter alia , that the
Board never provided it with specific direction for
filing an answer to a backpay specification, and
that the calculations of the hours worked by Hiy-
sota Fuel employees in the General Counsel's back-
pay specification are grossly inaccurate.
The Board did not have the Respondent's
amended answer before it at the time of the
Board's consideration of its Supplemental Decision
and Order in this case . Because the Board did not
consider the Respondent 's amended answer in its
original determination of this case, it has therefore
decided to grant the Respondent's motion for re-
consideration.
The Board having duly considered the matter,
IT IS ORDERED that Respondent J.R. Sales'
motion is granted.
IT IS FURTHER ORDERED that the attached Sup-
plemental Decision and Order be substituted for
the Supplemental Decision and Order that issued
on 31 July 1987.
' 285 NLRB No 17 (unpublished)
2 The Respondent asserts that it was instructed to forward its amended
answer to the Office of the Chief Administrative Law Judge by Deputy
Chief Administrative Law Judge Davidson We do not pass on the verac-
ity of this assertion
SUPPLEMENTAL DECISION AND
ORDER'
On 24 June 1986 the National Labor Relations
Board issued a Decision and Order2 directing Hiy-
sota Fuel Co., Inc., and Hiysota Fuel Co., Inc.,
Debtor-in-Possession , and Mark Gregg, Trustee in
Bankruptcy and/or J.R. Sales, Inc. (the Respond-
ents), inter alia, to make whole the Respondents'
employees by paying to the United Mine Workers
of America and its Local 1023 benefit trust fund
contributions which were withheld between 2 June
and 8 September 1982 as required by the National
Bituminous Coal Wage Agreement of 1981. On 30
October 1986 the United States Court of Appeals
for the Third Circuit entered its judgment enforc-
ing in full the backpay provisions of the Board's
Order. Because controversies arose over the
amounts due the Union's benefit trust funds under
the terms of the Board's Order, on 2 February 1987
the Regional Director for Region 6 issued and
caused to be served on the parties a backpay speci-
fication and notice of hearing alleging the amount
of backpay due under the Board's Order and noti-
fying the Respondents that they must file a timely
answer complying with the Board's Rules and Reg-
ulations.
On 24 February 1987 Respondent J.R. Sales filed
its answer . Respondents Hiysota Fuel Co., Inc.,
and Hiysota Fuel Co., Inc., Debtor-in-Possession,
and Mark Gregg, Trustee in Bankruptcy, failed to
file an answer . By letter dated 18 February 1987,
Mark Gregg, Trustee in Bankruptcy, acknowl-
edged receipt of the backpay specification and,
inter alia, asserted that the scheduling of additional
hearings to determine the extent of backpay due
was in violation of the automatic stay provisions of
the Bankruptcy Code. By letter dated 6 March
1987, Mark Gregg, Trustee in Bankruptcy, for-
warded to the General Counsel a copy of the
Trustee's proposed order of distribution of the
estate of debtor Hiysota Fuel Co., Inc. On 4 March
1987, by telephone, and on 27 March 1987, by
letter, the General Counsel advised the Trustee in
Bankruptcy of her position that the instant pro-
ceeding was excepted from the automatic stay pro-
visions of the Bankruptcy Code. By letter dated 27
March 1987 the General Counsel again notified the
Trustee in Bankruptcy of the obligation to file an
' On 31 July 1987 the Board issued a Supplemental Decision and
Order in this case . On 10 August 1987 Respondent J R Sales filed a
motion to reconsider the Board's decision and attached a copy of an
amended answer it had previously mailed to the Office of the Chief Ad-
ministrative Law Judge on 14 April 1987 On 24 August 1987 counsel for
the General Counsel filed an opposition to Respondent J R Sales'
motion The Board has this day granted Respondent J R Sales' motion to
reconsider this case
2 280 NLRB 763
287 NLRB No. 1
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
answer to the backpay specification under the
Board's Rules and Regulations and of the effects of
the failure to file an answer, i.e., that the allega-
tions in the specification could be found to be true
and thus the Board could enter an appropriate
order. The General Counsel further advised that
unless a contrary indication was received from the
Trustee in Bankruptcy by 1 April 1987, it would be
assumed that the Trustee in Bankruptcy did not
intend to file an answer in this matter, and the
General Counsel would expeditiously proceed to
liquidate the total amount due from the Respond-
ents.
On 30 March 1987 the General Counsel filed
with the Board a "Motion to Strike Portions of
Answer of Respondent JR. Sales, Inc. to the Back-
pay Specification and to Deem Admitted Portions
of Backpay Specification and Motion for Judgment
on the Pleadings." On 1 April 1987 the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the Gen-
eral Counsel's motion should not be granted. Re-
spondent J.R. Sales filed an amended answer dated
14 April 1987 with the Office of the Chief Admin-
istrative Law Judge in Washington, D.C., and it
was received by that office on 17 April 1987. Re-
spondent J.R. Sales' amended answer was received
by the Board along with its motion to reconsider
on 10 August 1987. The General Counsel filed an
opposition to Respondent J.R. Sales' motion to re-
consider.
On 10 April 1987 the General Counsel filed with
the Board a "Motion for Summary Judgment upon
Backpay Specification and Notice of Hearing." On
14 April 1987 the Board issued a Notice to Show
Cause why the General Counsel's motion should
not be granted. Respondents Hiysota Fuel Co.,
Inc., and Hiysota Fuel Co., Inc., Debtor-in-Posses-
sion, and Mark Gregg, Trustee in Bankruptcy,
have failed to file a response to either Notice to
Show Cause.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record, the Board makes the fol-
lowing
Ruling on Motion to Strike and Motion for
Summary Judgment
Section 102.54 of the Board's Rules and Regula-
tions provides that the allegations in the specifica-
tion may be deemed admitted if an answer is not
filed within 21 days from service of the specifica-
tion. This section also provides that the respondent
"shall specifically admit , deny, or explain each and
every allegation of the specification, unless the re-
spondent is without knowledge, in which case the
respondent shall so state." The specification states
that "[t]o the extent that such answer fails to deny
allegations of the specification in the manner re-
quired under the Board's Rules and Regulations
and the failure to do so is not adequately explained,
such allegations shall be deemed to be admitted to
be true and the Respondent shall be precluded
from introducing any evidence controverting
them."
In its amended answer, Respondent J.R. Sales
admits that UMWA and its Local 1023 were par-
ties to the National Bituminous Coal Wage Agree-
ment of 1981 (NBCWA), but denies that Respond-
ent J.R. Sales was a party to the agreement and,
further, asserts that it "believes that the effective
dates of the NBCWA as set forth by the Regional
Counsel are not correct." Respondent J.R. Sales
maintains that the Board should rely on the lan-
guage of the NBCWA and not the allegations of
the Regional Director in paragraphs 2 and 3 of the
backpay specification because "there seems to be
some discrepancy in the two."
Respondent J.R. Sales denies the allegations in
paragraph 4 of the backpay specification, and that
it employed any bargaining unit employees at any
time material to these cases. Respondent J.R. Sales
states that it believes that the listing of hours
worked is for Hiysota Fuel Co. employees and that
the listing is incorrect. Respondent J.R. Sales as-
serts that it reviewed the payroll records of Hiy-
sota Fuel and sets forth the number of hours that it
believes the Hiysota Fuel employees worked
during the backpay period.3
Respondent J.R. Sales denies the allegations of
paragraph 5 of the backpay specification, and states
that the production figures listed by the Regional
Director represent coal produced by Hiysota Fuel,
but that the "Respondent [J.R. Sales] has not exam-
ined the production records of Hiysota Fuel and
offers no opinion or belief with regard to the accu-
racy of the figures." Respondent J.R. Sales further
denies the allegations of paragraphs 6 and 7 of the
backpay specification and states that it "believes
that the Board Decision calls for the payment of
approximately $5500.00 to the 1974 Pension Trust
and nothing to trusts for employees who were re-
3 Respondent J R Sales believes that the Hiysota Fuel employees
worked the following number of hours during the backpay period
Period Hours Worked
6/2-6/30 668 00
7/1-7/31 1957 25
8/1-8/31 2044 50
9/1-9/7 37600
HIYSOTA FUEL CO.
tired prior to the time that the Hiysota Fuel mine
was opened."
The General Counsel submits in the opposition
to the motion of Respondent J.R. Sales to reconsid-
er the Board 's previous Supplemental Decision and
Order that the amended answer filed by Respond-
ent J.R. Sales fails to cure the defects of Respond-
ent J .R. Sales' original answer , and that the Board
should reaffirm its Supplemental Decision and
Order in this matter . The General Counsel submits
that Respondent J.R. Sales in its amended answer
has failed to comply with the specificity require-
ments of Section 102.54(b) and (c) of the Board's
Rules and Regulations, and is attempting to reliti-
gate matters relating to the single employer status
of the Respondents , which matters are res judicata
in this proceeding.
We agree with the General Counsel with respect
to paragraphs 1, 2, 4, 6, and 74 of Respondent J.R.
Sales' amended answer . It is clear that Respondent
J.R. Sales is attempting to relitigate matters relat-
ing to the single employer status of the Respond-
ents which have already been decided by the
Board . As the issue of single employer status has
been determined by the Board, clearly it cannot be
relitigated now in the context of a backpay specifi-
cation hearing . With respect to paragraph 4 of Re-
spondent J.R. Sales' amended answer, because Re-
spondent J.R. Sales has access to the production
records of Hiysota Fuel, its answer to the allega-
tions in paragraph 5 of the backpay specification is
deficient . Furthermore , paragraphs 6 and 7 of Re-
spondent J.R. Sales' amended answer fail to meet
the specificity requirements of Section 102.54(b)
and (c) of the Board 's Rules and Regulations.5 We
therefore grant the General Counsel 's Motion for
Summary Judgment with respect to paragraphs 1,
2, 3, 5, and 7 of the backpay specification, and find
that Respondent J.R. Sales is liable for the backpay
obligations set forth in paragraph 7 of the specifica-
tion.
However, we find that paragraph 3 of Respond-
ent J.R. Sales ' amended answer complies with the
Board 's Rules and Regulations , and, that this Re-
spondent's answer raises an issue in controversy
with respect to the number of hours worked by
Hiysota Fuel employees during the backpay period.
4 There is no par . 5 in Respondent J.R. Sales ' amended answer.
° Sec. 102 .54 of the Board 's Rules and Regulations provides:
[Ilf the respondent disputes either the accuracy of the figures in
the specification or the premises on which they are based , he shall
specifically state the basis for his disagreement , setting forth in detail
his position as to the applicable premises and furnishing the appropri-
ate supporting figures.
3
We therefore deny the General Counsel's Motion
for Summary Judgment with respect to paragraphs
4, 6, and 8 of the backpay specification.
Furthermore , the undisputed allegations in the
General Counsel 's Motion for Summary Judgment
disclose that Respondents Hiysota Fuel Co., Inc.,
and Hiysota Fuel Co ., Inc., Debtor-in-Possession,
and Mark Gregg, Trustee in Bankruptcy, were
aware of their duty to file an answer and knowing-
ly failed to do so . In the absence of good cause
being shown for the failure of Respondents Hiysota
Fuel Co., Inc., and Hiysota Fuel Co., Inc., Debtor-
in-Possession , and Mark Gregg, Trustee in Bank-
ruptcy , to file a timely answer,6 the allegations
contained in paragraphs 1, 2, 3, 5, and 7 of the
backpay specification are deemed to be admitted as
true. Therefore, we grant the General Counsel's
Motion for Summary Judgment with respect to
those paragraphs of the specification.
Accordingly, the Board concludes that the net
backpay contributions due the United Mine Work-
ers of America and its Local 1023 benefit trust
funds under paragraphs 1, 3, 5, and 7 of the back-
pay specification are as stated in paragraph 7 of the
specification, and orders the payment of $18,715.16
by the Respondents to the benefit trust funds. The
Board remands this case for a hearing on the net
backpay contributions due under paragraphs 4, 6,
and 8 of the specification.
ORDER
The National Labor Relations Board orders that
the Respondents, Hiysota Fuel Co., Inc., and Hiy-
sota Fuel Co., Inc., Debtor-in-Possession , and Mark
Gregg, Trustee in Bankruptcy and/or J. R. Sales,
Inc., Ralphton , Pennsylvania , their officers, agents,
successors , and assigns, shall pay United Mine
Workers of America and its Local 1023 benefit
trust funds the amount of $18,715.16 plus any addi-
tional amount computed in the manner prescribed
in Merryweather Optical Co., 240 NLRB 1213
(1979), accrued to the date of payment.
IT IS FURTHER ORDERED that this case be re-
manded for a determination of the amount of back-
pay due under paragraphs 4, 6, and 8 of the back-
pay specification.
° We reject the Respondents ' contention that the determination of
backpay due in the instant proceeding is in violation of the automatic stay
provisions of the Bankruptcy Code, because it is well settled that Board
proceedings fall within the exception to the automatic stay provision for
proceedings by a governmental unit to enforce its police or regulatory
powers. P.J. Hamill Transfer Co., 277 NLRB 462, 463 (1985); Phoenix
Co., 274 NLRB 995 (1985); NLRB Y. Evans Plumbing Co., 639 F.2d 291,
293 (5th Cir. 1981); In re Be! Air Chateau Hospital, 611 F 2d 1248, 1251
(9th Cir. 1979).