Coal company removed class action too late, judge rules

By John O'Brien | Jun 13, 2013

WHEELING – A class action lawsuit filed against Consolidated Coal Company by a former employee will be heard in state court.

On May 24, U.S. District Judge John Preston Bailey remanded Aaron Birtcher’s lawsuit to Marshall County Circuit Court, where it was first filed on Aug. 9. Birtcher alleges his benefits and wages were not paid in a timely manner.

Consolidated Coal removed the case to federal court on March 29. Bailey ruled it was not filed in time.

The company had argued it was not aware Birtcher’s lawyer - Sandra K. Law of Schrader Byrd & Companion – planned to include union employees in the proposed class until a March 15 motion to compel.

Bailey ruled the company should have been aware of it after a Jan. 11 letter and thus missed the 30-day deadline for removal.

“The Jan. 11, 2013, letter specifically stated that ‘[t]he fact that someone is in the [United Mine Workers of America] and subject to their collective bargaining agreement does not change their right to timely receive a final paycheck,” Bailey wrote..

“The defendant argues that, despite a reference to the United Mine Workers of America and a collective bargaining agreement, this language does not provide ‘unequivocally clear and certain’ notice that the class definition includes union employees.

“However, this court notes that in response to the defendant’s argument that the plaintiff is not similarly-situated to hourly union employees, the January 11, 2013, letter stated that ‘[t]he commonality is termination and not being paid on time – which has nothing to do with the collective bargaining agreement or a salary versus hourly consideration.’”

Birtcher’s lawsuit alleges he was not paid his wages and benefits in full within 72 hours of his discharge from employment in violation of the West Virginia Wage Payment and Collection Act.

Consolidated Coal employs both union and non-union employees, and Birtcher did not belong to UMWA.

UMWA workers are subject to a collective bargaining agreement known as the National Bituminous Coal Wage Agreement.

The March motion to compel said Birtcher planned to serve as representative of a class of union and non-union employees.

The mention of union employees made the lawsuit removable to federal court under the Labor Management Relations Act, Consolidated Coal argued.

Consolidated Coal is represented by Steptoe & Johnson attorneys Larry J. Rector and Julie A. Arbore.

From the West Virginia Record: Reach John O’Brien at

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