Time Miners' Foe in 'Unfair Labor Practice' Case
Posted on: Saturday, 19 July 2008, 00:00 CDT
By John David
Many might be unaware that a monumental labor case is occurring in the Kanawha Valley. It involves an "unfair labor practice" charge against Massey Energy's Spartan Mining Co. and Mammoth Coal Co. at the operations formerly owned by Horizon Natural Resources Co. called Cannelton Industries and the Dunn Creek and Dock Co. near Montgomery. It was initially filed by the United Mine Workers union in 2005, and the National Labor Relations Board held a 16-day hearing at WVU-Tech in early 2007. Administrative Law Judge Paul Bogas handed down a momentous decision, since appealed, last November.
Bogas ordered Massey to (1) recognize the UMWA as the exclusive representative of the Cannelton employees, (2) bargain with the UMWA concerning conditions of employment, (3) restore pre-existing conditions including wage rates and benefit plans until the parties negotiate a new agreement, (4) rehire 85 former employees in substantially equivalent positions, without loss of seniority or other privileges, discharging if necessary any employees hired in their places, (5) pay reinstated employees back pay and other benefits, and (6) purge from employee records any reference to the refusal to hire these employees.
Sweeping decisions of this magnitude are uncommon in labor relations. Readers might recall the struggle with textile manufacturer J. P. Stevens (portrayed in the movie "Norma Rae," with Sally Field), in which the NLRB found the firm guilty in 121 cases over 17 years and even ruled that, in Georgia, intimidation of workers was so serious that the company was ordered to recognize the Amalgamated Clothing and Textile Workers Union because no fair election could be held.
Today, decisions of this kind are even more rare, as a result of companies purchasing assets in bankruptcy courts, whereby labor contracts are usually permitted to be severed. This was thought to be the case with Horizon's Cannelton operations when a federal bankruptcy judge approved its sale to Massey in 2004. At issue was the obligation to employees "under successorship," which was covered in the unexpired National Bituminous Coal Wage Agreement signed by Horizon, as contrasted to Massey's intent to purchase assets "free and clear of encumbrances and other interests such as the Coal Industry Health Benefit Act of 1992."
What apparently was not fully considered was that responsibility to employees on the successorship issue was not solely limited to a clause in the severed UMWA contract. In the 1987 case of Fall River Dyeing and Finishing Corp., for example, the U.S. Supreme Court noted that, "where a union certified for more than one year has a rebuttable presumption of majority status, that status continues despite changes in employers. Although the new employer is not bound by the substantive provisions of the predecessor's bargaining agreement, it has an obligation to bargain with the union as long as it is in fact a successor of the old employer and the majority of its employees were employed by its predecessor."
A reference to this obligation was made by the federal bankruptcy judge when the Cannelton sale was approved. He noted that if the "operations are sold as going concerns, there is no reason to believe that the miners' employment would suffer any interruption."
To exempt itself from the Fall River precedent, Massey tried a two-prong approach.
First, it sought to prove that Massey was not a successor, claiming that it was only an entity on the stock exchange and that it was not responsible for labor policies of its subsidiaries. Bogas, after extensive testimony, tossed out that argument, noting in essence that a pervasive anti-union culture exists throughout all Massey operations, and that administrators from other units were directly involved in deciding whether to hire back individuals at the former Cannelton operation.
Second, explaining why it didn't hire back a majority of the former employees, all of whom were UMWA members, Massey argued that they were not productive. It hired many less-experienced miners, including numerous trainees or "red hats." In fact, failure to rehire those familiar with the operation created many challenges for Massey, as tons per employee per day dropped from 35 in 2003 under Horizon to 23.4 in 2006 under Massey.
Bogas concluded that union affiliation was a key reason why employees were not rehired. This constituted a clear violation of the National Labor Relations Act, Section 8(a)(3), which declares that it is an unfair labor practice for an employer to discriminate in hiring based on union affiliation.
While the decision by Bogas is significant, it is not final. Massey appealed to the full National Labor Relations Board in Washington, which is currently dominated by conservative appointees and has recently issued a rash of controversial anti-union decisions. However, in a counter-move, the NLRB has sought a federal court injunction to enforce and implement the Bogas decision pending appeal, since an unfair labor practice is involved. Such an order would require immediate temporary compliance by Massey. A decision in this regard is pending.
Regardless, there is the element of time. Three years lapsed after Massey assumed control of Horizon/Cannelton before the decision date of the administrative law judge. More delays are likely as the appeal process continues. In fact, it is not unprecedented for up to 20 years to elapse before final resolution. If the 85 coal miners eventually win outright, only their estates might benefit, since time is not on their side.
(c) 2008 Charleston Gazette, The. Provided by ProQuest Information and Learning. All rights Reserved.
Source: Charleston Gazette, The
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