West Fork Energy

National Labor Relations Board - Board Decisions

Dec 18, 1991

305 N.L.R.B. 870 (N.L.R.B. 1991)

870
305 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Union filed a second amended charge in Case 11–CA–12749
and a third amended charge in Case 11–CA–12914 on August 9,
1991.
2 We also observe that the amended consolidated complaint’s alle-
gations are substantively unchanged from allegations contained in
the original and consolidated complaints. The only significant change
is that the amended consolidated complaint deletes Harris and adds
P. & A. Coal, Inc. as a respondent. In this regard, because P. & A.
Coal, Inc. and West Fork Energy are alleged to constitute a single
employer, the answers filed by West Fork Energy suffice to preclude
entry of summary judgment against P. & A. Coal, Inc. Caribe
Cleaning Services, 304 NLRB 932 fn. 3 (1991); SFS Painting &
Drywall, 303 NLRB 495 (1991).
West Fork Energy, Inc. and P. & A Coal, Inc. and
International Union, United Mine Workers of
America and its District 28. Cases 11–CA–
12749 and 11–CA–12914
December 18, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by the Union on June 6, 1988,
and amended on July 28, 1988, in Case 11–CA–12749,
the General Counsel of the National Labor Relations
Board issued a complaint on July 21, 1988, against
West Fork Energy, Inc., alleging that it has violated
Section 8(a)(1) and (5) of the National Labor Relations
Act. On August 5, 1988, West Fork Energy filed an
answer to the complaint, admitting in part, and deny-
ing in part, the allegations of the complaint.
Upon a charge filed by the Union on August 26,
1988, and amended on September 27 and October 14,
1988, in Case 11–CA–12914, the General Counsel
issued a consolidated complaint on October 24, 1988,
against West Fork Energy, Inc. and William P. Harris,
personally, alleging that they have violated Section
8(a)(1) and (5). On November 9, 1988, West Fork En-
ergy and William P. Harris filed an answer to the con-
solidated complaint, admitting in part, and denying in
part, the allegations of the consolidated complaint and
stating affirmative defenses.
On March 1, 1989, the Regional Director issued an
order withdrawing the consolidated complaint and con-
ditionally approving the Union’s request to withdraw
the charges based on a non-Board settlement. On April
22, 1991, the Regional Director informed West Fork
Energy that he was revoking the approval of the non-
Board settlement due to West Fork Energy’s failure to
comply with its terms. The Regional Director also ad-
vised West Fork Energy that he was reinstating the
consolidated complaint.
On August 16, 1991, the General Counsel issued an
amended consolidated complaint1 against West Fork
Energy, Inc. and P. & A. Coal, Inc., the Respondents,
alleging that they have violated Section 8(a)(1) and
(5). On August 23, 1991, Respondents filed a motion
to continue the hearing date asserting that William P.
Harris was in the hospital and unable to assist in pre-
paring a defense and that Respondents planned to file
for bankruptcy protection. The Respondents did not
file an answer to the amended consolidated complaint.
On August 28, 1991, the associate chief administrative
law judge issued an order postponing the hearing.
On September 23, 1991, the General Counsel filed
a Motion for Summary Judgment. On October 4, 1991,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondents 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 the Motion for Summary Judgment
In the Motion for Summary Judgment, the General
Counsel contends that Respondents have failed to file
any answer to the amended consolidated complaint and
that under Section 102.20 of the Board’s Rules and
Regulations the Board should find the allegations of
that complaint to be true and should issue an order
based on these findings. However, as the Motion for
Summary Judgment correctly sets forth, an answer was
filed by Respondent West Fork Energy to the original
complaint and the consolidated complaint.
In Chrissy Sportswear, 304 NLRB 988 (1991), the
Board stated that an answer to a complaint is not re-
vived where: (1) the parties subsequently enter into a
settlement agreement; (2) the settlement agreement is
breached; (3) the original complaint allegations are re-
newed in a consolidated complaint; and (4) no timely
answer is filed to the consolidated complaint. See, e.g.,
Orange Data, Inc., 274 NLRB 1018 (1985). Orange
Data, Inc., however, involved an informal Board set-
tlement agreement approved by the Regional Director
under Form NLRB–4775. This form specifically states
that approved settlement agreements withdraw out-
standing complaints and answers.
In this case, a non-Board adjustment settled the mat-
ters which gave rise to the issuance of the consolidated
complaint, and the Region’s withdrawal of the consoli-
dated complaint made no reference to answers pre-
viously filed by Respondent West Fork Energy. Under
these circumstances,2 we find that the answers to the
complaint and consolidated complaint survive the
breached settlement agreement and subsequent unan-
swered amended consolidated complaint. See, e.g.,
Frate Service, 255 NLRB 163 (1981); Nottingham
Restaurant, 243 NLRB 567 (1979); WUSS Radio, 236
NLRB 1529 (1978), which the Board specifically held
871WEST FORK ENERGY
in Orange Data were not overruled. See 274 NLRB at
1019 fn. 4.
Both answers denied the commission of any unfair
labor practices and the second answer asserted affirma-
tive defenses. Having found that these answers sur-
vived the breached settlement agreement and the sub-
sequent unanswered amended consolidated complaint,
we shall deny the General Counsel’s Motion for Sum-
mary Judgment.
ORDER
It is ordered that General Counsel’s Motion for
Summary Judgment is denied.
IT IS FURTHER ORDERED that the above-entitled pro-
ceeding is remanded to the Regional Director for Re-
gion 11 for further appropriate action.