Board Games: How The Collapse Of The Senate Has Crippled The NLRB And Damaged Lives

Board Games: How The Collapse Of The Senate Has Crippled The NLRB And Damaged Lives

SMITHERS, W.Va. -- When he was a teenager, Barry Kidd went into the West Virginia coal mines, just like his father, his grandfather and his great-grandfather before him. Kidd started out as a general laborer on the midnight shift at the Cannelton mine near Smithers, W.Va., 30 miles southeast of Charleston, in 1977. Cannelton was something of a family mine back then, and Kidd's own father was still running heavy equipment there when his son was hired and given the telltale red hat of a novice. Like his dad, Kidd brought home good money for hard and dirty work.

With a foot on one of the few blue-collar ladders into West Virginia's middle class, Kidd had hoped to spend a full career at Cannelton before retiring with a pension and health coverage through his union, the United Mine Workers of America (UMWA). For a while there, it all went according to plan.

But in 2004, Cannelton's operator declared bankruptcy, throwing out the contract with the union and selling the mine to Massey Energy. One of the largest coal companies in the country, Massey later became famous for its culpability in the Upper Big Branch mining disaster, in which 29 miners perished at a Massey-owned mine in Montcoal, W.Va., in 2010. When it purchased the Cannelton operation, Massey could boast a workforce that was 97 percent union-free, according to court documents.

The miners all understood the significance of the Massey purchase: Unionized rank-and-file workers would be purged from Cannelton. This seemed all but a certainty, even though the miners already knew the operation and their jobs inside out, and even though, in Kidd's estimation, the Cannelton miners were "the coal minin'-est bunch of sons of bitches you ever seen in your life."

"We knew the mines, and we done everything by the book," said Kidd, now 54. "These guys, they might not be pretty to look at, but you talk about a bunch of coal miners. We did our jobs."

Nine years after the Massey buyout, litigation continues to confirm what Kidd and his former colleagues have contended all along -- that Massey management discriminated against union members when they staffed their new mine. While many non-union supervisors didn't see a break in their employment with the ownership change, most of the more than 200 union members were cut loose and not invited back.

Federal officials ruled last year, for the second time, that 85 miners are owed backpay as well as reinstatement on the job. (Technically speaking, Massey itself no longer exists. A year after the disaster at Upper Big Branch, Massey was sold for $7.1 billion to Virginia-based Alpha Natural Resources, which took on the company's assets as well as debts. A spokesperson for Alpha said the company would not comment for this story, citing ongoing litigation.)

But nearly a decade after the layoffs, the Cannelton miners are still waiting to go back to work. In the meantime, the miners' middle-class lives have been downgraded to something less.

"I don't understand it, how we can keep on going, and the system can keep on beating us," Kidd said. "It's just a shame how the people -- the working class -- can be done like this."

Kidd had been earning about $60,000 a year working in the mine. He now makes roughly $24,000 doing maintenance for the local public school district. (Kidd did, however, earn enough union time for his pension and health coverage.) Along with more than half of his salary, Kidd has lost something less tangible. For four generations, the Kidd men had been coal miners. Barry Kidd will likely retire a janitor.

The travesty of Cannelton has as much to do with the dysfunction of the U.S. Senate as it does with the slow wheels of justice. The miners have the misfortune of having their case before the National Labor Relations Board (NLRB), the 78-year-old, independent agency tasked with enforcing labor law on corporations and unions. Despite its reputation for professionalism, the NLRB has come under withering political attacks from the right during the Obama presidency. Republicans and business groups have accused the board of catering to unions and killing jobs through labor-friendly rulings. Several GOP lawmakers seem intent on rendering the board inoperable.

They may soon get their wish. In January, a panel of judges for the U.S. Court of Appeals for the District of Columbia Circuit ruled that Obama's three recess appointments to the five-member labor board last January violated the Constitution. The complainant in the case, a Pepsi bottling company named Noel Canning, argued that a ruling against it by the board should be thrown out because Obama's appointments were illegitimate and the board therefore didn't have the necessary quorum. The company enjoyed the support, through legal filings, of Senate Minority Leader Mitch McConnell (R-Ky.), House Speaker John Boehner (R-Ohio) and the GOP-allied Chamber of Commerce, the nation's foremost business lobby. Three Republican-appointed judges decided the case.

The Noel Canning ruling has put a hold on the miners' victory last year before the labor board, along with more than 200 other cases. If the D.C. Circuit ruling is upheld, it would undo a year's worth of work by the board, including the Cannelton case, and essentially shut the board down for the time being. An earlier win by the miners, in 2009, was invalidated by a Supreme Court decision that said the board didn't have an appropriate quorum at the time.

The uncertainty has brought a degree of chaos to the board, with scores of companies, from Starbucks to Domino's to Time Warner, now arguing in court that the board's rules, decisions or cases last year are illegitimate. This dysfunction stems from the president's inability to appoint members to the board through the normal Senate confirmation process without a filibuster-proof majority.

Respect for Congress -- whose approval rating is hovering around 15 percent nationally -- appears to have plumbed new depths near the Cannelton mine.

"If I go to work and I don't do my job -- or if I go to work and I stand in the way of other people doing their work -- I'm not there very long. I'm fired," said Charlie Treadway, another laid-off Cannelton miner. "How are senators able to go up there and stand in the way, and not be held accountable for it?"

Senate Majority Leader Harry Reid (D-Nev.) and other Democrats have so far declined opportunities to meaningfully reform Senate rules, which currently allow the minority to freely and easily stand in the way of any legislation, nominees or appointments they find objectionable, even if it means crippling an agency. And as the Cannelton miners have witnessed, a paralyzed system has a way of abetting the deep-pocketed and powerful, leaving average citizens to fend for themselves, at least while they're still alive. Three of the Cannelton miners have died while waiting for their reinstatements.


Even before the president made his recess appointments, GOP lawmakers signalled that they would deny him a functioning labor board if they could. Sen. Lindsey Graham (R-S.C.) was among those calling this relatively obscure federal body "the most out-of-control agency in Washington," panning its decisions in favor of unions.

"Given its recent actions, the NLRB as inoperable could be considered progress," Graham declared in August 2011.

Such a statement from a sitting senator -- that it's better a federal agency be shut down than do things that the senator disagrees with -- might surprise someone unfamiliar with the heated politics of the labor board.

The NLRB was created in the midst of the Great Depression by the National Labor Relations Act, also known as the Wagner Act, the 1935 statute that guaranteed American workers' right to join a union and bargain collectively. As part of Roosevelt's "Second New Deal," the quasi-judicial labor board was established during a time of labor turmoil in the U.S. Roosevelt sold it to the titans of business as one of the buffers between them and full-fledged revolt.

By tradition, the ideological makeup of the board has vacillated in favor of either corporations or unions, depending on whether a Republican or a Democrat occupies the White House and controls board appointments. But for the most part, the board and its regional offices have quietly carried out the mundane and unglamorous mandate of settling labor disputes.

The notion that the board should be neutered, rather than issue rulings that lawmakers don't approve of, is a relatively recent phenomenon and a symptom of Washington's new obstructionism, according to Sen. Tom Harkin (D-Iowa), chair of the Senate Committee on Health, Education, Labor & Pensions.

"It used to be that Republicans said it was fine as long as they controlled it," said the soon-to-retire Harkin, who's closely watched the board during his decades in Washington. "Now they don't want a board at all. They want to do away with [National Labor Relations Act], and that's only enforceable by actions of the board.

"This is quite a disturbing development in our labor-management relations in this country," he added.

Democrats, too, have played a role in holding up board appointments before. Late in the George W. Bush presidency, after a spate of rulings benefiting corporations, Democrats blocked Bush from filling labor board seats when two became vacant. The two-member board, which still handled cases and carried into the Obama presidency, was later deemed insufficient by the Supreme Court. According to the labor board's own history of board membership, presidents on both sides of the aisle have increasingly come to rely on recess appointments simply to keep the board functioning.

As with the Consumer Financial Protection Bureau (CFPB), the new regulator created by the Dodd-Frank financial reform law, blocking nominees to a watchdog agency like the labor board effectively blocks the law itself from being enforced. Obama's recess appointee to the CFPB, Richard Cordray, could also be undone by the appellate ruling against the labor board installments. A clean appointment to the bureau has eluded Cordray for two years, with Republicans explicitly demanding changes to the CFPB's structure before they will consider confirming him or any nominee.

Despite the current calls to halt the NLRB's operations, labor unions still exist, at least for the time being, and spats between unions and companies still need to be resolved.

"It used to be that if you didn't like a law, you'd go to the legislative process and you'd change it, repeal it, modify it," said Fred Feinstein, former general counsel for the NLRB during the Clinton years. "But now, because of political gridlock, you can't do that, apparently. So you attack the agency that's supposed to be enforcing the law. That's raising pretty important and significant questions about the fundamental constitutional principle of due process."

In what ultimately became a GOP campaign issue, the acting general counsel for the labor board, Lafe Solomon, issued a complaint against the Boeing Company in 2011, accusing the aerospace giant of violating labor law when it tried to establish a production line for its 787 Dreamliner plane in South Carolina. According to the complaint, the Boeing move was an act of illegal retaliation against Boeing's unionized workforce in the state of Washington, for having gone on strike in the past.

Republican members of Congress, particularly the South Carolina delegation that included Graham, were apoplectic. Such charges, however, usually get resolved well short of a full board hearing. And the general counsel, who acts as a kind of prosecutor, had evidence that appeared to support the charge. (Boeing CEO Jim McNerney had said publicly that the company was headed to South Carolina in part because of "strikes happening every three to four years in Puget Sound.")

In response to the Boeing complaint, Republicans threatened to defund the labor board and cease its operations, and also blasted the president as a job killer. Nonetheless, the charge against Boeing was ultimately settled, when Boeing and the machinists' union inked a new contract. In fact, the controversial charge against Boeing never even reached the board itself.

"Can you imagine if federal judges were subject to the same kind of intense attacks for making a decision to hear a case, or to accept an appeal?" asked Feinstein, the former general counsel. Of the Boeing fiasco, Feinstein said, "It got resolved how most of the cases get resolved -- it was settled, through a process of negotiations, through the collective bargaining process. ... Politics could have derailed it."

Republicans and business groups were just as infuriated by a rule proposed by the board to require businesses to hang posters spelling out workers' labor rights under the Wagner Act. The posters, which were 11 by 17 inches and could be printed off the NLRB's website, were similar to the placards already hanging in American workplaces spelling out rights related to work safety, equal opportunity, family and medical leave and the minimum wage. It probably says a lot about the state of organized labor that board members felt workers might be unaware they have the right to discuss working conditions amongst themselves and join a union (or not).

Business lobbies sued to block the poster requirement, assailing it as a "punitive" measure and a "gift to organized labor," while Republicans held it up as one more reason to neuter the agency. The rule is currently tied up in litigation.

Wilma Liebman, a labor attorney and longtime board member, presided as the NLRB's chair from 2009 through 2011 as Graham and other Republicans assailed its leftward tilt, including the poster mandate. For Liebman, the board's modern drama epitomizes, better than any other government body, the national discussion on income inequality and class warfare that the 2012 elections engendered.

The irony here is that organized labor has never been so diminished, with a historical low of 6.6 percent of private-sector workers now belonging to unions. In other words, the board's decisions tend to affect an increasingly smaller portion of Americans, while the politics projected onto the board by Congress grow more and more heated, making it difficult, and, soon, perhaps even impossible, for the board to carry out its responsibilities.

"In an odd sense, if there were to be a government agency that would exemplify this divide, you can see that it's the NLRB," Liebman said. "It's the quintessential administrative state created by the New Deal. It literally represents the interests of labor and business -- and income inequality, and class issues, and everything that's wrapped up in what the board does.

"If there were one agency you would pick, on some intellectual level, you can see why it's this one," she said. "This is a statute that was created out of enormous conflict, much of it violent, and it's always been controversial. It's odd now, that organized labor is so reduced and labor law is so ossified, but it's like the opposition won't be happy until the nail is in the coffin."


As FDR and other New Deal architects saw it, the labor board's very mission was to remedy cases like the one at the Cannelton mine as fairly and expeditiously as possible. And not just for the sake of workers unfairly punished for their association with a union. Just as critically, the labor board was to hold bad actors to account and level the playing field for employers who played by the rules.

As court documents and interviews show, Massey showed little interest in re-hiring Cannelton's UMWA miners, even though the company was effectively handed a latchkey operation through bankruptcy and had a ready-and-willing workforce already based in the community. Through its new subsidiary, Mammoth Coal, which was created to operate the Cannelton mine, Massey quickly made job offers to Cannelton's previous, non-union supervisors and managers, but interviews were hard, if not impossible, to come by for rank-and-file miners.

After the buyout, the union informed Massey managers that there were 250 former Cannelton miners hoping to go back to work. (A minority now wanted nothing to do with the mine, given Massey's anti-union reputation.) But Massey officials didn't even let the miners know how they could apply, according to board findings.

Meanwhile, Massey searched far and wide for non-UMWA workers. A freshly laid off Barry Kidd spotted a billboard on the highway inviting experienced miners to apply for jobs. Kidd called the number and it was Massey, he said. With no jobs and plenty of spare time, some former Cannelton workers were vacationing in Myrtle Beach, S.C., a favorite shore spot for West Virginia miners, when they saw a plane fly over the beach dragging a banner, the kind that usually promotes a tiki-bar happy hour or wet t-shirt contest. Instead, the advertisement was soliciting applicants for their old jobs at Cannelton.

Massey managers who were doing the hiring went so far as to create a spreadsheet to track the amount of applicants' "union time" -- how many years they'd logged as UMWA members, which served as an approximation of union loyalty.

"Mammoth's hiring criteria can be best understood as mechanisms to screen out miners with an established connection to the Union," the board noted in its ruling last year. In a rarity for a union-busting case, investigators didn't even have to rely on circumstantial evidence to ferret out discrimination. Managers were straightforward about it under questioning. "Mammoth's managers testified that their anti-union bias tainted their decisions not to hire certain discriminatees," the board wrote. Under labor law, such discrimination is illegal.

In the end, out of 219 miners hired for Massey's new operation, only 19 came from the union, and none of them were union officers or committee members, the labor board found. Many of the new workers seemed to come from outside the area, with no roots in nearby Smithers or other local communities. Several of them had no mining experience whatsoever.

"I put in applications, but it was fruitless," said Dwight Siemiaczko, a miner who'd put in 20 years at Cannelton. "We were more or less blackballed."

For families whose breadwinners worked at Cannelton, Massey's purge has been nothing short of life-altering. Like other pockets of West Virginia still clinging to remnants of the coal industry, the area surrounding the mine doesn't provide much in the way of good-paying jobs. According to census data, median household income in Fayette County, where many of the miners live, is less than $33,000, and an even worse $20,500 in nearby Smithers, the closest city to the mine. A whopping third of Smithers families fall below the poverty line, as do 17 percent of the county's families.

"You had 200 people making anywhere from $50,000 to $100,000 a year, and that was all drawn out of the community," Siemiaczko said. "Families are living on 50 percent or less of what they were previously making. It's like a shotgun blast to the chest."

Siemiaczko had planned on building a new home and enjoying retirement with his wife. "It's ruined me, plain and simple," he said. "Everything I had planned for later in life has just been taken away."

After the labor board ruled in their favor last year, the miners and their families were cautiously hopeful that they might soon see checks for backpay, and that the miners who were physically able might be heading back into the mine. But once the appellate ruling stayed the decision, Chuck Donnelly, a UMWA lawyer based in Charleston, explained how goings-on in Washington had delayed the case into its ninth year.

"They can't beat us on the facts," Donnelly said. Instead, he argued, they beat them on the politics. "And I'm the schmuck who has to go to the local [union] hall and try to explain what Congress or the courts are doing."

The Cannelton case, said Sen. Jay Rockefeller (D-W.Va.), is "a prime example of the need for a strong, functioning NLRB. Those miners, who work hard day in and day out, were deprived of their jobs and the promises made under their contracts."

Among those who've died before the case could be resolved was Charles Hill, who passed away in 2010, at age 63. According to his widow, Heide Hill, Charles spent his remaining years bouncing between service jobs that paid at or near the minimum wage. Heide, now 65, started cleaning houses to help make ends meet. Charles, she said, was bitter to the end that he never won his reinstatement.

"We waited every day for that call," she said.


With the labor board now in limbo, more than 85 companies have challenged the cases against them, some preemptively. In many cases, the challenges are meant to scuttle union elections or undo penalties against the companies for unfair labor practices. As the Wall Street Journal reported, companies are even arguing that 10 of the agency's regional directors are illegitimate, the rationale being that they took their posts under an invalid board.

Likely hoping for a quick resolution to the case, the labor board and the Justice Department have declined an option to appeal and by late April plan to ask the Supreme Court to hear the case. Meanwhile, House Republicans have advanced legislation that would forbid the board from performing any actions that require a quorum until the Noel Canning case is resolved.

The board's opponents seem to be creating a convenient catch-22: Until the board's appointments are confirmed, every decision by the board can be challenged, and yet there's little reason to believe board appointees would actually be confirmed.

"This has been a fairly well-run, well-administered agency over the years. Labor and management respected that," said Feinstein, the former general counsel. "These are serious people, good administrators, in a well-run organization. For what it's worth they've gotten themselves right in the middle -- and in my view, there's nothing they did or didn't do that got them there -- in the middle of this contentious issue. They've become part of this very polarized environment. It's now extremely difficult for them to know what to do."

In labor disputes, and especially in unionization efforts, gridlock tends to benefit corporations over workers. For many of the 200-odd cases handled by the board last year, the Noel Canning ruling has put yet another hitch in what's already been a grueling process. Take, for example, a group of Panera Bread bakers trying to unionize in Michigan. They've faced what labor board complaints have painted as an intense anti-union campaign, only to see Noel Canning put their favorable ruling from last year into abeyance.

"I can't tell you how many cases took years, even a decade, to get settled, and by the time it's settled the interest in the union is eroded," said John Price, an international representative for the Bakery, Confectionery, Tobacco Workers and Grain Millers' International Union, which is representing the bakers. "Inasmuch as our members don't like politics, this case is exactly why they need to pay attention and participate."

Unions' dwindling numbers in the U.S. -- now in steady decline for decades -- are usually attributed to economic factors like globalization, the rise of America's union-free service sector, and the shrinking footprint of the country's once-mighty manufacturing base. But, as the case of Cannelton shows, it has quite a bit to do with public policy and labor law, too.

Rep. George Miller (D-Calif.), widely considered a friend to unions, ties the NLRB drama to the political attacks on organized labor in places like Wisconsin, Ohio and Michigan in recent years. "They're investing in chaos," Miller said of lawmakers trying to shut down the board. "There's not a great deal of sophistication to this. The constant hammering of the NLRB is to render it ineffective. I think it's part of a larger war to weaken the unions.... They would prefer people to be low-paid, with no rights, no benefits. That would be their ideal economy."

The miners may have defeated Massey before the board last year, but in a strange way the former coal corporation has already won the larger battle. Even if reinstatement is eventually cleared for some 80 miners, the union has already been effectively stripped from the mine, thanks to the original layoffs and the repeated delays at the labor board. Time, almost as much as political obstructionism, has been Massey's ally.

"As far as the workforce going back, you might have a third of them," Michael Ryan, president of the UMWA local, said of the miners still involved in the case. "All of us, we're all in age now. Everybody's crippled up. We've been battling this for eight years. ... We've got people dying off."

For those who stand to win reinstatement, there remains the question of how badly they want to work in a mine that's no longer union. Charlie Treadway and Dave Preast, two longtime Cannelton miners, were part of a small handful of laid-off workers who went back to work under an injunction after the Massey purchase. As the case was pending before the labor board, they worked under court order.

As former union members, Treadway and Preast felt they had bullseyes on their backs.

Treadway compared the job to "working for a stalker." Preast said he was "always looking over [his] shoulder."

The two men had decades of mining experience between them, but they were assigned the tasks of miners half their age, they said. They were both laid off again last year, ostensibly for economic reasons.

"I guess that's what eats at me more than anything else -- the number of years it's taken for this case to get to where it's at now, and we're still treading water," Treadway said. "There's been several [guys] that have already passed away, and I feel certain there will be more. You'll see less and less of us able to go back to work. In a way, I guess that's a victory for the company, too. They accomplished what they set out to do, which is to get rid of us."

Treadway's unemployment benefits ran out a few months ago. He's wondering what his next move will be. He used to own some farmland that he sold when money got tight after the Massey takeover, and he's thinking about getting into agriculture somehow, maybe raising some animals. At 58, he feels he's too old to start a new career, yet there's no telling how old he'll be when the Cannelton case gets resolved. Like a lot of the miners he once worked with, he can't help but wonder if he'd even pass the physical.

Before You Go

Sen. Jeff Flake (R-Ariz.)

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