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Published: Wednesday, October 02, 1985
Page: P6A

The UMW's selective strike against A.T. Massey and other coal companies was one year old Tuesday. This date could mark a major turning point, since the legal status of the strike changes after one year. The head of Rawl Sales and Processing, an A.T. Massey affiliate and selective strike target, has told people that he expects to make a profit in October for the first time in a year.

Current labor law states that after one year, those on an economic (contract) strike lose the right to vote if strike-breaking workers or the company call on the National Labor Relations Board to conduct a new representation election. Then the union either gives up voluntarily as happened in Stearns, Ky., or the vote is conducted and the union is promptly decertified. All strike activities at that labor company become illegal for a considerable period of time.

Since most of the selective strikes except at the A.T. Massey affiliates are unquestioned economic strikes, decertification is an immediate possibility for many UMW miners.

Another possibility after one year is that the targeted firm will sell out to another company. This arrangement can be financed by the original firm or can be guaranteed by purchase agreements to market the coal. This legal maneuver creates a "new" corporation that can exempt itself from the labor agreements of the "old" corporation, without changing real ownership and control. From a corporate standpoint, this maneuver is "sanitary," since it avoids a high-profile decertification election.

The A.T. Massey situation is on hold because the UMWA has filed some unfair labor practice charges in an effort to turn the strike against Massey affiliates into an unfair labor practices strike.

Unfair labor practice strikes are not affected by the one-year rule, so decertification elections don't become a factor while unfair labor practices are pending. However, the questions as to whether the Massey strike is an unfair labor practice strike or an economic strike is undecided.

A preliminary finding by the NLRB "investigative arm" sided with the union, but NLRB procedures require a hearing of determination before an administrative law judge. Both sides present their cases at the hearing, and the judge's decision often differs from the preliminary finding by the investigative arm. Over the past few years I have attended a number of hearings. Presently the tendency is to rule against the union position, regardless of preliminary findings by the investigative arm.

The UMWA's case hangs on Massey's refusal to treat all of its affiliates as one corporate entity when bargaining. Since "one entity" bargaining has occurred after the charges were filed, the judge could rule that the remedy has already been obtained and that an unfair labor practice that has been remedied is irrelevant.

The judge could also find equal fault on both sides and throw everything out since Massey affiliates have filed unfair labor practice charges against the union. If the union is unsuccessful in its effort to obtain an unfair labor practice ruling by the judge and exhausts all appeals, the strike automatically becomes an economic strike again, subject to immediate company efforts to decertify the union.

The unfair labor practice and decertification processes are part of a NLRB that constantly reflects changes in federal labor laws, Supreme Court interpretations and the political appointees that determine NLRB rulings. Current labor law and the development of the giant multi-national corporation make it difficult for the selective strike tactic to be used effectively today. The Wagner Act, which was passed in 1935, first gave workers the legal right to organize, to bargain collectively and to strike.

Under the original Wagner Act, workers never lost their voting rights during an economic strike. During the late '30s and early '40s, John L. Lewis sometimes used the selective strike during organizing drives for both the UMWA and other CIO unions in order to use competition among companies to the union's benefit. With the passage of the Taft-Hartley amendments to the Wagner Act in 1947, Lewis changed his tactics, moving to national agreements and national strikes.

Lewis despised the Taft-Hartley Act, calling it "the first ugly, savage thrust of fascism in America," because he foresaw its destructive effect on organized labor. What he foresaw is what is emerging in the present selective strike efforts of the UMWA. Companies, especially those that are part of a diversified multi-national conglomerate like A.T. Massey, can easily hold out for a year. NLRB and courtroom battles can drag on until workers are totally disillusioned, dispersed or even dead. Under these conditions a small group of workers can make a valiant stand at much sacrifice for a year or more, and find it all down the drain.

Any significant UMWA loss could prove to be devastating, not only for the UMWA, but for the majority of West Virginia workers.

It would almost certainly result in a flood of further concessions leading not to more, but to fewer jobs. With the effective demise of the coal-severance tax, decently paid jobs are the basis of the state's infrastructure, social service and education systems.

The situation in West Virginia and eastern Kentucky calls for a quick change in tactics to involve those miners presently working, the unemployed, and workers and unions in other industries that are willing to take united action against continued concessions.

Dr. David, a professor at West Virginia Tech, is one of the Gazette's contributing columnists.

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