The board panel – made up of Brian Hayes, Richard Griffin Jr and Sharon Block – agreed that the two refused to hire formerly unionized employees so they could sidestep union obligations following Massey’s purchase of a Kanawha County mine from Horizon Natural.
The mine operated under the Mammoth Coal division, but in its former life, staff had been represented by the United Mine Workers of America.
The union informed the new owner that 250 of the experienced Horizon miners were willing to return to work after the sale.
However, the panel found Massey and Mammoth “went out of its way” to avoid hiring those employees so it could ensure the mine, when re-opened, would be non-union.
Just 19 of the former Horizon workers were brought on to the Mammoth Coal operation and its crew of 219.
Additionally, with the union eliminated, the pair went on to impose lower wage structures for all of its miners.
“Indeed, Mammoth’s hiring criteria can be best understood as mechanisms to screen out miners with an established connection to the union,” the board found.
Under the federal outlines of the National Labor Relations Act, the buyer of a unionized company must recognize a union and bargain with it if the majority of that buyer’s new employees originated with the former union-represented workforce.
Discrimination against union supporters during the hiring process is also a labor law violation.
Griffin and Block said in the decision just released that Massey gave the miners discriminatory treatment because it directly participated in the unlawful conduct.
“Massey made clear to the managers and supervisors making the hiring decisions for Mammoth that Massey would not accept a union in that operation,” the board majority said.
Also, despite arguments, the majority of the group found Massey and Mammoth constituted a single employer because of their integrated operations.
The two also did not meet the classification for an arms-length relationship.
Because of that, Massey was found jointly liable for the case’s ordered remedies, including back pay for those miners impacted by the discrimination.
The NLRB confirmed Hayes did dissent on that point.
He moved to oppose because he found that neither the direct participation issue nor the single employer issue were raised by the agency’s general counsel in the complaint or in administrative law judge arguments when the case was initially heard.
The additional board briefing did not cure that failure, he added.
“In their collective zeal to hold Massey liable – for the obvious reason that it is far more likely than Mammoth to have funds to meet back pay obligations – the acting general counsel and my colleagues have trampled due process,” Hayes said.
The NLRB ordered Mammoth and Massey, which is now owned by Alpha Natural Resources, to offer employment to a group of 85 identified former Horizon employees. They must also be made whole for their lost earnings.
The companies must also recognize the union and bargain with it on request, restoring the former terms and conditions of employment. Finally, all bargaining with the union regarding any changes must be done in good faith.
Alpha purchased Massey and its mines in June 2011. While a spokeman did not immediately respond to an ILN request for comment, the company told the Associated Press over the weekend that it would review the ruling and anticipated an appeal, despite the fact that the incident occurred before it assumed ownership.
The UMWA had much to say on the topic Monday afternoon, calling the NLRB decision a “huge victory”
“They have fought eight long years for justice,” president Cecil Roberts said.
“The real tragedy here is that they had to fight at all, but Don Blankenship and Massey Energy were never very interested in doing the right thing.”
He also noted that the mine’s workers, when it was the Cannelton mine, had been represented by the UMWA since the 1940s.
“We call on management to sit down with us at the earliest possible time to negotiate a collective bargaining agreement to provide the workers with the strong union contract they deserve,” Roberts said.