Workers Die Awaiting U.S. Justice as Companies Make Limbo

When a federal labor board ruled in September that a West Virginia coal mine had illegally refused to hire union workers, 61-year-old Dave Preast thought his nine-year ordeal was finally coming to an end.

The National Labor Relations Board said the Massey Energy Co. had to offer jobs to Preast and 84 co-workers, pay them back wages from 2004, and recognize the United Mine Workers of America at the Mammoth Coal Company. Preast, whose son has a heart condition that has required several surgeries, believed he was finally close to getting the lifetime medical benefits he would have earned working at the mine in Cannelton, West Virginia.

Then a federal court in Washington ruled that three of President Barack Obama’s appointments to the labor board were “constitutionally invalid,” a decision the administration announced earlier this month it will appeal to the Supreme Court. Resolving the legal issues could mean years of further delay for Preast and hundreds of others who say they are victims of unlawful labor practices.

“I was hoping it would be settled quickly and we could go on with what we had,” Preast said in an interview. “Eight years, nine years have passed. It’s a lifetime for us. Here I’m almost an old man.”

Rulings Appealed

Employers, questioning the validity of Obama’s picks for the labor board, have appealed 97 of its rulings since the Jan. 25 decision, including the decision against Massey. All told, hundreds of orders, decisions and routine actions by the board are now subject to challenge.

The labor board picks were invalid because the Senate wasn’t in recess at the time, a three-judge panel of the U.S. Court of Appeals for the District of Columbia held. To prevent Obama from making appointments after Congress started a holiday break, House and Senate Republicans had refused to formally adjourn. The Senate then held so-called pro-forma sessions.

The Obama administration said on March 12 that it will ask the U.S. Supreme Court to reverse the ruling by the three-judge panel.

Workers at the Mammoth mine are owed about $40 million in back pay and benefits, according to Chuck Donnelly, an attorney with the United Mine Workers of America in Charleston, West Virginia. Even if the Supreme Court sides with the Obama administration, it may take another two years for the Mammoth mine workers to get a final ruling, he said.

“This is just an example of how long it takes to get justice in labor relations these days,” Phil Smith, a spokesman for the UMWA, said in an interview.

2005 Complaint

Three of the workers who were part of the original complaint against Massey in 2005 have since died, Donnelly said.

“Some of them would go back,” Donnelly said in an interview. “Some may not. It’s an aging work force. Its not an easy job.”

Employers are also challenging routine actions of the board, such as issuing subpoenas for information. About 600 orders and decisions issued by the labor board since January 2012 may be challenged, according to Lafe Solomon, acting general counsel for the board. Hundreds of additional decisions made by earlier recess appointees could also be attacked, he said.

“Employers are taking the decision and stretching it beyond really what the DC Circuit ruled on, and using that to try to delay NLRB action in elections and other sorts of cases,” Lynn Rhinehart, general counsel for the AFL-CIO, said in an interview.

Chamber’s Urging

Republicans lawmakers, employers and groups such as the Washington-based U.S. Chamber of Commerce cheered the ruling. Last month, the chamber launched a website to provide information to employers seeking to challenge labor board decisions by board members it says aren’t eligible to serve.

“We loudly warned that shoehorning these nominees in such a controversial method is going to create a cloud of uncertainty,” Sheldon Gilbert, an attorney for the chamber, said in an interview. “There is a huge cloud of uncertainty over whether the NLRB is open for business.”

The court that decided the case in January, brought by Noel Canning Corp., a soda bottling company, has put all appeals on hold until the Supreme Court reaches a decision. Courts in other regions are still hearing appeals.

Other Cases

On March 22, the U.S. Court of Appeals in Richmond, Virginia, heard arguments in two cases brought by employers claiming NLRB decisions against them should be reversed because the board lacked a legally appointed quorum. The U.S. Court of Appeals in Philadelphia on March 19 heard arguments in a similar case brought by a New Jersey nursing home.

The Noel Canning decision is also being used to try and slow the work of the board, delaying remedies such as reinstating workers or scheduling union elections, according to labor advocates and agency officials.

“I don’t want to at this point give an impression that it has totally gummed up the works,” Solomon, acting general counsel for the board, said in an interview. “It has the potential.”

The decision may also be used to undo regulations by the Consumer Financial Protection Bureau, whose director, Richard Cordray, was named at the same time as the three labor board members, Sharon Block, Terrence Flynn and Richard Griffin.

Union Sympathies

Massey took over the mine in September 2004 and laid off union workers, according to Donnelly. In December, when it started rehiring miners, applicants deemed to have union sympathies were rejected, he said.

“We filed applications with them,” Preast said. “They interviewed several of us, or pretended to. If you had any union affiliation or sentiment, you were turned down.”

Massey was purchased by Alpha Natural Resources Inc. in 2011. Ted Pile, a spokesman for Alpha, which is based in Bristol, Virginia, declined to comment on the case.

Initially, the case seemed headed for a speedy resolution. In 2007 an administrative law judge at the labor board found Massey guilty of violations of labor law. A year later, the board obtained an injunction requiring the company to offer interim employment to the miners.

Preast, of Jodie, West Virginia, was among a handful of the original 85 union workers who returned to the mine while the decision was appealed. Then things stalled. Because of a Supreme Court decision in an unrelated case on whether the labor board can act without a quorum, the Mammoth mine case was returned to the board for another decision.

Ruling Upheld

That came on Sept. 29, 2012 when the board upheld the 2007 ruling that Massey had violated federal labor laws, a decision now in limbo as a result of the Noel Canning case. Days before the September ruling, Preast said he was told he would be laid off.

He’s now getting unemployment compensation and looking for work.

“We expected an appeal but didn’t expect this to happen,” Preast said. “Its just a never-ending process, one discouragement after another.”

The case is Noel Canning v. National Labor Relations Board, 12-1115, 12-1153, U.S. Court of Appeals for the District of Columbia (Washington).|

The lead Richmond case is National Labor Relations Board v. Enterprise Leasing Company-Southeast LLC, 12-01514, U.S. Court of Appeals for the Fourth Circuit (Richmond).

The Philadelphia case is NLRB v. New Vista Nursing and Rehabilitation, 12-01936, U.S. Court of Appeals for the Third Circuit (Philadelphia).

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