NLRB Orders Massey Energy to Hire 85 Miners, Recognize Union

The decision requires these and other acts by company and its subsidiary, Mammoth Coal Co., which Massey created to operate a mine it bought in 2004 from an operator in bankruptcy.

The National Labor Relations Board has ruled that Massey Energy Company and a subsidiary, Mammoth Coal Company, unlawfully refused to hire former unionized employees at a coal mine in Kanawha County, W.Va., that Massey bought in 2004 from Horizon Natural Resources Company after the latter company declared bankruptcy. According to the board, Massey then created Mammoth to operate the mine.

Horizon employees had long been represented by the United Mine Workers of America, which informed the new owners that 250 of the experienced Horizon miners were willing to return to work after the sale. A panel of three NLRB members, Brian E. Hayes, Richard F. Griffin Jr., and Sharon Block, agreed Mammoth went out of its way to avoid hiring the former employees to make sure the mine would be non-union. "Indeed, Mammoth's hiring criteria can be best understood as mechanisms to screen out miners with an established connection to the union," the board ruled.

Massey Energy owned the Upper Big Branch mine in West Virginia, where 29 miners died in an explosion in 2010. The following year, Alpha Natural Resources purchased Massey.

Ultimately, 19 former miners were hired, and Mammoth then unlawfully imposed a lower wage structure for all miners, the board found. (The National Labor Relations Act requires the buyer of a union company to recognize and bargain with the union if a majority of the buyer’s new employees came from the former union-represented workforce.)

Two of the members, Griffin and Block, found Massey and Mammoth constitute a single employer based on their integrated operations and lack of arms' length relationship -- which means Massey is jointly liable for any remedies, including back pay. Hayes dissented, writing that this single employer issue was not raised by the NLRB general counsel. “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 wrote.

The decision orders Mammoth and Massey to offer employment to 85 former Horizon employees, pay them for lost earnings, recognize the UMWA and bargain with it on request, to restore the former terms and conditions of employment, and to bargain in good faith with the union about any changes.

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