Source: bloomberglaw.com
Date: November 26, 2021
Author: Ian Kullgren
“As an Alabama coal miners’ strike neared the eight-month mark, a Tuscaloosa County judge took an unusual step: prohibiting union workers from picketing outside properties owned by their employer.
The order was a rare incursion by a local court into a private-sector strike—an activity protected under federal labor law for nearly a century. The United Mine Workers of America, which represents workers at Warrior Met Coal Inc., called the move unconstitutional, saying it violated their federal rights in addition to the First Amendment.
Judge James Roberts Jr. of the Circuit Court of Tuscaloosa County, was not convinced by the union’s arguments. On Nov. 15, he doubled down on a temporary restraining order issued weeks earlier barring picketing outside mines or offices owned by Warrior Met, extending it until Dec. 2.
The temporary restraining order was the latest flash point in what’s already one of the longest miners’ strikes in U.S. history. It was a stark departure from the normal process for settling labor disputes, where parties file federal complaints to the National Labor Relations Board, and it represents a rarely used method on the employer’s part to circumvent the Democratic-controlled NLRB in favor of a friendlier venue, lawyers and legal professors said.
“This is an extraordinarily rare occurrence, to use a state court to stop picketing during a strike,” said Cathy Creighton, a union attorney who directs the Cornell University School of Labor and Industrial Relations satellite branch in Buffalo, N.Y. Creighton said she’s seen it successfully done only three times during her 30-year career.
Making an end-run around the NLRB can be an especially effective method in the South, where anti-union sentiment runs deep. The rate of union membership in Alabama is lower than in most other states, and 70% of voters there approved a “Right-to-Work” constitutional amendment in 2016 that ended required union membership in workplaces covered by a collective bargaining agreement.
Violence on Picket Line
The judge’s initial order, issued Oct. 27, followed violence on the picket lines, where about 1,000 workers have been on strike since April.
Warrior Met Coal released a video in October showing picketers blocking cars carrying replacement workers to company facilities.
In one instance, the video shows workers breaking a window of an SUV and attacking a man as he stepped out of the vehicle. In another, a man, identified by the company as a local union official, smashed the windows of a parked truck with a hammer.
“While the UMWA has portrayed their actions as ‘peaceful protests,’ in recent weeks striking workers have escalated the amount and severity of criminal behavior,” The company said in a statement Oct. 25. “In addition to interfering with the entrance and exit to our facilities, picketers have increased attacks on personal vehicles, property, and uninvolved community members near the company’s property.”
The company’s video was enough to persuade the judge, who prohibited workers from assembling within 300 yards of about a dozen Warrior Met facilities.
United Mine Workers denies the allegations of violence. In an interview, union spokesman Phil Smith said union members have never instigated confrontation but have, at times, responded when Warrior Met officials used force to break their picket lines.
“Any time out members are involved in anything on the picket line, it’s retaliatory,” Smith said.
The union filed a complaint with the NLRB alleging that Warrior Met has refused to bargain in good faith—a violation of federal labor law—but hasn’t received a response, Smith said. The company filed a separate NLRB charge against the union on Oct. 21, records show. The agency hasn’t publicly released the charge.
A Warrior Met spokesman referred Bloomberg Law to the company’s chief legal officer, who didn’t respond to a calls and emails seeking comment.
Union officials said the company’s pursuit of a local court order is little more than legal posturing.
“It’s a tactic. They seek an injunction from a court to restrict any kind of protests,” AFL-CIO President Liz Shuler told Bloomberg Law at a protest in Washington on Nov. 18. “[It’s] trying to shut down freedom of assembly right here in the United States of America.”
Nomad Strikers
The unrest dates to 2015, when Walter Energy, which owned a number of mines in central Alabama, filed for bankruptcy. The company’s assets were acquired by a group of creditors under the Warrior Met banner, according to local news reports. As part of the reorganization plan, workers were forced to accept steep cuts on health care and retirement benefits, including for workers who had already retired, United Mine Workers Secretary-Treasurer Brian Sanson said in an interview.
The union had hoped to restore some of the cuts in the next contract, Sanson said. But negotiations failed to produce results, and workers went on strike when the current contract expired April 1. They’ve been off the job ever since.
“When the contract expired, they absolutely just said no,” he said.
With their picket lines broken, the union has been taking its demonstrations elsewhere. This month, camouflage-clad picketers marched outside the offices of financial firms in New York and Washington that invest in the mine. UMWA President Cecil Roberts was arrested with several others at a Nov. 4 demonstration in New York.
The strike forced Warrior Met to shut down one mine and significantly reduce operations in another, executives said on a Nov. 2 earnings call.
Yet the third quarter of 2021 was still the company’s most profitable for the company since the onset of the pandemic. It raked in $38.4 million over that time compared to a loss of $14.4 million during the same period last year—and that was accomplished despite losing at least $7 million due to the strike.
While workers nationwide enjoy increased leverage amid a national labor shortage and congestion at the ports, it’s a more complicated picture in the coal industry, which struggled early in the pandemic but appears to have rebounded. The positive financial report could deepen the standoff, hardening the union’s demands for a greater share of profits while easing pressure on the company to meet them.
“While we are disappointed that the union continues with the strike, we continue to negotiate in good faith to reach a resolution,” mining company chief executive officer Walter Scheller said on the earnings call.”
