Cussing Coal Miners Face Off Against Murray Energy, With Help From The Feds

Some of the older guys at the Marion County Coal Mine in Metz, West Virginia, have a special greeting when they pass each other underground, one of their co-workers recently testified in court. “Good morning is ‘F--- you,” the colleague said. “It’s, ‘F--- you. F--- no. F--- you.’ ”

Like many workers in stressful and dangerous jobs, coal miners are known for their salty language. Now, a couple of miners at the Marion County Mine are hoping it doesn’t cost them their jobs — and the federal government has their back.

Richard Harrison and Jesse Stolzenfels used to work at the West Virginia mine. In late 2013, Murray Energy Corp., one of the nation’s largest coal companies, took the mine over from a previous owner. Shortly thereafter, the company tried to implement a controversial production-based bonus program.

Workers at the mine, who are represented by the United Mine Workers of America union, voted it down. But the company went ahead and adopted the plan anyway — in violation of its labor contract, according to the union. Murray Energy disagrees and maintains it followed the agreement.

Under the program, workers received bonuses based on the amount of coal they extracted. Many opposed it on safety grounds, including Stolzenfels and Harrison, according to court filings. The latter, in particular, had a history of a speaking out over safety. Meanwhile, the company told miners who disagreed with the plan that they could opt out of it by writing “void” on their checks and returning them.

In February 2015, Harrison and Stolzenfels took this route — but not before adding some profanity-laced flair. Harrison’s check, for $11.58, read, “Void Void Kiss My Ass Bob.” Stolzenfels’ check, for $3.22, read “Void Eat S--- Bob.” The company responded by suspending both of them with “intent to discharge,” citing the employee handbook’s policy against profanity.

Murray Energy CEO Bob Murray told International Business Times he never saw the checks, and that his staff took action on their own.

“My management has enough respect for me and my company and my people that they said, ‘We’re not going to have somebody insulting Mr. Murray like that,’ ” Murray said. “‘We respect him too much, he works too hard for us, too hard for our safety, too hard for keeping our jobs, and they fired ’em.’ ”

An arbitrator sided with the company, upholding the suspensions.

That’s when the miners turned to the courts. And so far, they’ve had better luck there. According to experts, the cases underline the broad speech protections afforded to workers when they’re in engaged in labor or safety disputes — protections they might otherwise be less likely to receive.

“Certainly there are many people who would feel uncomfortable or disapprove of the [workers’] conduct,” said Angela Cornell, director of the labor law clinic at the Cornell University Law School. Ultimately, though, that’s not what matters.

The National Labor Relations Act, the federal bedrock of American labor law, gives workers the right to engage in “protected concerted activity” — to join together with one or more co-workers and speak out over pay and working conditions without facing retaliation. “In this context, workers have more rights than they would otherwise,” Cornell said.

For example, an angry worker who comes into the office and fires off an expletive at his or her boss is unlikely to be protected by the National Labor Relations Act. But if that worker drops an f-bomb or two while she’s complaining with co-workers about say, long hours or unsafe working conditions, her speech is more likely to be protected.

A separate federal law that covers mining safety offers comparable protections.

Last summer, as previously reported by the Huffington Post, an administrative law judge at the Federal Mine Safety and Health Review Commission, the federal court that adjudicates mining safety disputes, ordered the company to temporarily reinstate Richard Harrison. Last December, the same judge ordered Murray Energy to temporarily reinstate Jesse Stolzenfels. The court will soon decide whether Harrison’s suspension amounted to illegal discrimination under federal mine safety laws. It may also follow suit for Stolzenfels.

Meanwhile, the National Labor Relations Board, the nation’s highest labor court, has also taken up the case. The board’s general counsel, which acts as a kind of prosecutor within the agency, has joined forces with lawyers for the workers and the union, arguing the discharges amounted to retaliation against the miners’ work-related complaints. In a December brief that followed a hearing with an NLRB administrative law judge, the board's general counsel called for the permanent reinstatement of both miners and written orders notifying workers at the Marion County Mine of their rights. A decision from the judge is expected soon.

"The claims of Messrs. Harrison and Stolzenfels are completely baseless," Murray Energy spokesman Gary Broadbent said. "Murray American Energy Inc. [the name of the subsidiary that operates the mine] won both cases at arbitration and will win subsequent proceedings on the merits."

Attorneys for the workers and the labor board’s general counsel disagree. The voided checks weren’t just isolated outbursts at the boss, they argued in their post-hearing brief. Instead, the missives were part of a well-established dispute at the mine over the bonus program. And just because a couple of miners used profanity to weigh into the issue doesn’t mean they should lose their rights to engage in work-related protest.

What’s more: No matter what the employee handbook says, swearing is a regular part of the work environment, lawyers said. “Cussing and the use of profanity is considered the norm in the coal industry and the basic language at the mine,” two of the miners’ attorneys, Tony Oppegard and Rachel Hanna, wrote in their post-hearing brief, arguing the axings amounted to disparate treatment.

“These are the first two guys at the mine who have been fired for swearing,” Oppegard said. “How can you say when people swear they should be discharged and nobody else has been fired?”

At the NLRB hearing last November, witnesses testified about the prevalence of coarse language in the mines, according to a court transcript. Expletives fly regularly in every direction, they said, from managers to the rank-and-file and vice versa.

“It’s not like we work in a day care center or we work at a preschool,” one of the workers, Jason Todd said, according to the transcript. “We’re coal miners and we talk like trash ... I mean, I go home with my family, and it’s all I can do not to cuss there in front of my kids.”

Todd recalled a supervisor chiding him after a co-worker filed a grievance. “I don’t agree with that f------ grievance,” he said the supervisor told him, according to the transcript. “You can file the f------ thing, and take it all the f------ way, because I don’t give a f---.”

Another worker, David Dayton, testified that management and employees regularly used the phrase “kiss my ass” to one another, according to the transcript. Richard Harrison said he remembered the mine’s superintendent call out over the mine’s paging phone system and ask, “Who in the f---’s got my [conveyor] belts off? I want my belts f------ turning on now.”

The coarse language, according to workers, extended all the way up to the company’s CEO — Mr. Bob Murray himself.

After Murray Energy took over the mine in late 2014, Bob Murray laid out his company’s rules in a meeting with workers. “These are my f------ rules, and if you don’t like it, there’s the f------ door,” he said, according to workers who testified before the NLRB.

Bob Murray denies making the statement. He said most workers at his mines like the bonus system and called the discharged miners “scofflaws.”

These meetings have gotten Murray into trouble before. Last November, the Federal Mine Safety and Health Review Commission slapped Murray Energy with a $150,000 fine for interfering with miners’ rights to file confidential safety complaints with federal regulators at five West Virginia sites, including the Marion County Mine. The court also ordered Bob Murray to personally deliver speeches at the mines reminding workers they are allowed to file confidential complaints with the government. The company is appealing the ruling.

“It’s kind of hard for a company to fire people for swearing when the CEO is cussing too,” said Tony Oppegard, who was present at the NLRB hearing where miners testified about profanity.

Legal experts noted that judges from the National Labor Relations Board have sided with workers on dozens of similar cases over profanity. What matters above all is whether employees’ cussing takes place during “protected, concerted activity.”

Cornell University’s Angela Cornell said the angrily worded missives from Harrison and Stolzenfels don’t appear to be isolated or individual incidents. Instead, they seem to be part of a broader workplace dispute — one that involved tense disagreements over workplace safety and the miners’ collective bargaining agreement.

Of course, workers can lose protections if their conduct is especially reckless or egregious — for example, by making a violent threat to a supervisor, or by trying to sabotage their employer’s business. Indeed, that’s precisely what Murray Energy is arguing.

The company maintains the voided checks did not amount to “protected concerted activity” in the first place. But even if they did, the company argued in its post-hearing brief, the miners forfeited their protections by engaging in “indefensible or abusive misconduct.”

The board’s general counsel disagrees. It also noted in its post-hearing brief that employees have used “far more biting and insulting profane language” toward management and not lost their protections. In previous cases, for instance, workers have legally confronted their supervisors with such epithets as “egotistical f-----,” “stupid f------ moron” and “f------ liar.”

Cynthia Estlund, a labor law professor at the New York University School of Law, said the labor board tends to give workers a fair amount of leeway when they express grievances. “It’s not that profanity is protected as such,” she said. But “from the beginning, the board has given employees some breathing room when they’re engaging in protected, concerted activity,” she added.

In the meantime, Harrison and Stolzenfels await a more permanent solution. Although the mining safety court has already reinstated them, they have not yet returned to work. Murray Energy has complied with the judge’s order by offering what’s known as economic reinstatement — giving the miners full pay to stay home. Attorney Tony Oppegard said that’s become an increasingly common practice in coal mines.

“Most companies do not want miners back on the job after they’ve been discharged,” Oppegard said. “They don’t want other miners to know you have rights and when you have rights, you can be vindicated.”

The company disagrees. "This is nonsense and a total concoction," spokesman Gary Broadbent said. "Murray American Energy Inc. deeply values the rights and opinions of its employees."

In response to IBT reaching out to Murray Energy for comment, citing Oppegard's criticism, the company asked the Federal Mine Safety and Health Review Commission to allow Harrison and Stolzenfels to be physically reinstated on the job.

Oppegard said his clients oppose the request because it does not give the miners sufficient guarantee that they won’t be laid off again in the future.