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Court decision puts NLRB rulings in 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, 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 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.”

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.

“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.

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 workforce. 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 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. In February, 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.

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