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 thought he was finally close to getting the lifetime medical benefits he would have earned working at the mine in Cannelton, W.Va.
Then a federal court in Washington ruled that three of President 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 others.
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 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, W.Va. 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.
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 D.C. 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.
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.
On March 22, the U.S. Court of Appeals in Richmond, Va., 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.