Muffley ex rel. N.L.R.B. v. Massey Energy Co.
| Decision Date | 14 April 2008 |
| Docket Number | Civil Action No. 2:08-cv-00073. |
| Parties | Gary W. MUFFLEY, Regional Director of the Ninth Region of the NATIONAL LABOR RELATIONS BOARD, for and on behalf of the National Labor Relations Board, Petitioner, v. MASSEY ENERGY COMPANY, et al., Respondents. |
| Court | U.S. District Court — Southern District of West Virginia |
Carol L. Shore, Donald A. Becher, Jonathan D. Duffey, National Labor Relations Board, Region 9, Cincinnati, OH, Kelly R. Curry, U.S. Attorney's Office, Charleston, WV, for Petitioner.
Albert F. Sebok, Brian J. Moore, Jackson Kelly, Anna M. Dailey, Brace R. Mullett, Forrest H. Roles, Mychal Sommer Schulz, Dinsmore & Shohl, Charles F. Donnelly, Charleston, WV, Jennifer S. Rusie, Richard R. Parker, Ogletree Deakins Nash Smoak & Stewart, Nashville, TN, Grant Crandall, UMWA Headquarters, Fairfax, VA, for Respondents.
Pending before the court are the respondents' Motions to Dismiss Petition for Injunction under Section 10(j) of the National Labor Relations Act [Dockets 26 & 30]. The respondents argue that the petition for an interim injunction should be dismissed on two independent grounds. First, the respondents urge dismissal because the petitioner lacks the legal authority to bring the petition on behalf of the National Labor Relations Board. Second, the respondents argue that injunctive relief is not "just and proper" under § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j).
As for the respondents' first ground for dismissal, I FIND that it has no merit, and I DENY the motion on that ground. As for the second ground for dismissal, I FIND that it is an equitable determination that requires a hearing.
In August 2004, respondent Massey Energy Co. ("Massey") bought a coal mining operation known as Cannelton Industries, Inc., from Horizon Natural Resources Co. ("Horizon") after Horizon filed for bankruptcy. (Pet.'s Mem. Points & Auth. 5 [Docket 2].) Massey purchased this property "free and clear" of the collective bargaining agreement under which the employees at the Cannelton mine had previously worked. (Spartan's Mem. 2 [Docket 27]; Pet.'s Mem. Points & Auth. 6.) Massey operated the mine via its subsidiary, respondent Spartan Mining Co. ("Spartan"), which does business as Mammoth Coal Co. (Pet.'s Mem. Points & Auth. 5.)
After the respondents took control of the mine in September 2004, every former employee that had previously been a part of the "bargaining unit," and represented by the United Mine Workers of America ("UMWA"), lost his or her job. (Id. at 6.) On December 3, 2004, the respondents began hiring at the Cannelton property. (Id. at 7.) According to the petitioner, despite many of the former employees being ready and able to return to work at the mine, only twenty-two of over two hundred former bargaining unit employees were hired by the respondents to work at the Cannelton property. (Id.) Moreover, the petitioner alleges that the respondents did not hire any of the eleven former employees who had previously been union officials or union committee members. (Id.) Finally, the petitioner asserts that since the respondents acquired the Cannelton property in 2004, they have refused to bargain with the UMWA. (Id.)
On June 2, 2005, the UMWA filed a charge with the National Labor Relations Board (the "Board") alleging that the respondents were engaging in unfair labor practices in violation of the National Labor Relations Act ("NLRA"), as amended, 29 U.S.C. §§ 151-69. (Spartan's Mem. 2.) On June 28, 2005, July 22, 2005, and June 22, 2006, the UMWA amended the charge. (Id.) The UMWA asserted that the alleged unfair labor practices began on or about December 6, 2004. (Pet.Ex.1(a)-(d).)
In response to the charge filed by the UMWA, the petitioner filed a complaint against respondent Mammoth on August 8, 2006, pursuant to 29 U.S.C. § 160(b). (Spartan's Mem. 2.) On October 6, 2006, the petitioner amended the complaint to add Massey as a defendant. (Id.) The amended complaint alleged, among other things, that the respondents violated the NLRA by discouraging membership in a labor organization by refusing to hire certain employees of Horizon who previously worked at the Cannelton property and who were members of the UMWA. (Pet. Ex.2(b).) The amended complaint also alleged that the respondents violated the NLRA by failing to recognize and bargain with the UMWA at the Cannelton property. (Pet.Ex.2(b).)
After sixteen days of evidence and argument before an Administrative Law Judge ("ALJ"), the ALJ issued a Decision and Recommended Order. The ALJ found that "[s]ince December 3, 2004, the Respondents [Massey & Spartan] have violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to hire former employees of Horizon's Cannelton/Dunn operation for positions in the Mammoth bargaining unit." Massey Energy Co., 9 CA 42057, 2007 WL 4179503 (Nov. 21, 2007). In addition, the ALJ found that "[s]ince December 3, 2004, the Respondents have violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union and by unilaterally changing the terms and conditions of employment that had been in effect for bargaining unit employees prior to the transfer of control and ownership of Horizon's Cannelton/Dunn operation to the Respondents." Id.
As a remedy, the ALJ issued a number of recommendations. First, the ALJ recommended that the respondents be ordered to cease and desist from engaging in certain actions. Id. The ALJ also recommended that the respondents be ordered to offer certain individuals employment in the positions for which they would have been hired absent unlawful discrimination. Id. Moreover, the ALJ recommended that the respondents be ordered to recognize and bargain with the UMWA. Id. Finally, the ALJ recommended that the respondents be ordered to rescind any unilateral changes in employment conditions they made. Id. This measure was designed to prevent the respondents "from taking advantage of their wrongdoing to the detriment of the employees and to restore the status quo ante thereby allowing the bargain process to proceed." Id.
On December 19, 2007, the petitioner submitted this case to the Board's Injunction Litigation Branch for authorization to initiate injunction proceedings under § 10(j) of the NLRA, 29 U.S.C. § 160(j). (Pet's Resp. 2 [Docket 40].) The next day, the then four-member Board, anticipating that it would soon have fewer than three members, entered a temporary delegation order. (See Minute of Board Action, Spartan's Mot. Ex. A [Docket 26].) By this order, which became effective on December 28, 2007, the Board delegated to the its General Counsel "full authority on all court litigation matters that would otherwise require Board authorization." (Id.) Specifically, the Board temporarily delegated to the General Counsel "full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j)." (Id.) The Board stated that its delegation was authorized by "Sections 3, 4, 6, and 10 of the National Labor Relations Act." (Id.) At some point on or after December 28, 2007, the Board's membership fell below three. (Spartan's Mem. 3.)
After reviewing the case materials, the Injunction Litigation Branch submitted its recommendation to the General Counsel. (Pet's Resp. 3.) The General Counsel recused himself from evaluating the propriety of a 10(j) injunction. (Id.) Upon the General Counsel's recusal in this matter, the Deputy General Counsel acted in his stead. (Pet.'s Resp. 3.)
On January 22, 2008, the respondents filed exceptions to the ALJ's decision with the Board. (Spartan's Mem. 3.) Acting on behalf of the Board, the Deputy General Counsel authorized the filing of a 10(j) injunction on January 29, 2008.
On January 31, 2008, the petitioner, on behalf of the Board, filed with this court a Petition for Injunction under Section 10(j) of the National Labor Relations Act, as Amended [Docket 1]. Jurisdiction is based on federal question under 28 U.S.C. § 1331 because the petitioner brought this case under 29 U.S.C. 160(j) and because the respondents admittedly transact business in the Southern District of West Virginia. The respondents answered the petition and denied that the court had subjectmatter jurisdiction because, according to the respondents, the petitioner does not have the authority to bring the petition. (See Dockets 28 & 32.) On February 25, 2008, Spartan and Massey separately filed motions to dismiss the petition. In its memorandum in support of its motion, Massey adopted fully Spartan's memorandum. (Massey's Mem. [Docket 31].) Thus, I will treat the two motions as one.
The respondents argue that the petition for a § 10(j) injunction must be dismissed for two reasons. First, the respondents assert that "the Board improperly delegated its statutory power to determine if it should petition the Court for an injunction under Section 10(j) of the Act to the General Counsel and the General Counsel then re-delegated the decision to person(s) on his staff." (Spartan's Mem. 3.) Second, the respondents maintain that "an injunction is not `just and proper' as the Petition itself shows that the Board delayed over three years after commencement of the alleged unfair labor practices and almost 18 months after filing its initial Complaint, before petitioning for injunctive relief." (Id. at 3-4.) I will address the respondent's first argument but will not rule on the second until after I conduct a hearing.
In support of their "improper delegation" argument, the respondents assert that the Board cannot delegate the authority to file a petition for § 10(j) relief....
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