Several retired coal miners are feeling validated this month as a federal judge found merit in their case alleging that CONSOL Energy engaged in a decades-long scheme to rob them of lifetime health benefits for them and their spouses that were promised as a condition of employment.

The coal miners who brought the case all worked at CONSOL Energy mines between 1969 and 2014. Unlike many of their colleagues, they abstained from joining a union to work in the CONSOL mines, largely due to promises made by leaders at CONSOL that if the workers stayed non-union, they would earn higher wages and receive lifetime health benefits that were competitive with those offered by the United Mine Workers of America.

Thousands of miners took CONSOL operators at their word that their benefits would remain as long as they served the company for at least 10 years or worked until they were 55 years old. The promises of lifetime health benefits were repeated time and time again — at human resources fairs, informational workshops for employees, company picnics and more — to workers across different states and different mining operations.

But in 2014, as many of the miners were forced to retire in preceding years due to downsizing at the mines and a sale of some CONSOL properties to Murray Energy, those promises were proven to be false.

Miners — who were told numerous times without question that their health coverage would persist for them and their spouses into retirement — began getting letters saying that coverage was coming to an end.

Allan “A.J.” Jack, a 75-year-old former coal miner who retired in 2009 after spending 18 of his 39 year career underground for CONSOL in Pennsylvania, remembers getting the initial letter in the fall of 2014 telling him the benefits would expire in 2019. Less than a year later, he received another letter from CONSOL, this one saying both he and his wife’s medical, dental and prescription insurance coverage would end on Dec. 31, 2015.

“I was devastated. I mean, you retire and you just know that you’re going to have this,” Jack said in an interview with West Virginia Watch. “Why would anybody tell you time and time again that you were going to have these benefits and then take them away? It really is devastating.”

Jack was initially told of the lifetime health benefits in an orientation in 1991. He was working at another mine in Pennsylvania at the time but — based largely on the promises of lifetime benefits, which were already guaranteed to miners affiliated with the UMWA, and a 401(k), which union miners did not qualify for — decided to leave his job and begin work at the Enlow Fork mine in southwestern Pennsylvania.

Throughout his nearly two decades with CONSOL, not one manager mentioned to him that the company reserved the right to terminate the retiree benefits at any time.

According to the order issued on Sept. 30 by Senior U.S. District Judge John T. Copenhaver Jr., the fact that CONSOL executives repeatedly failed to tell employees working for the company in different states, at different mining operations and in different departments this fact was a clear misrepresentation of benefits and therefore a violation of the company’s fiduciary obligations.

Terry Prater, a 69-year-old who worked for CONSOL for 15 years in Kentucky, unexpectedly retired from his job on Sept. 30, 2014. He showed up to work for his evening shift that day like he usually did. In the middle of his shift, Gerald Kowzan — who worked in human resources for CONSOL — addressed employees, telling them that anyone who retired on or after Oct. 1 would not be receiving their promised lifetime health, dental and prescription insurance benefits. A coworker asked what would happen if they retired before midnight. Kowzan told them if they did, they could get the benefits for five years.

“There were six of us there on the night shift who had put the time in and were of age to retire. So at 11 o’clock, we hollered in the foreman’s radio. We told him to come and get us, we’re retiring,” Prater said. “I got my insurance and kept it for 15 months, then I got the letter that it was going to be taken away. Just like that and it was gone.”

A ‘union-busting scheme’

Sam Petsonk, a labor rights attorney who litigated the CONSOL case along with attorneys from the nonprofit legal advocacy organization Mountain State Justice, said the repeated lies told by CONSOL to its employees were clearly part of an overarching scheme to keep the mines from being unionized.

This was despite attempts at those mines by workers over decades to gain union recognition and join the UMWA.

“Anyone who’s lived in Appalachia over the last 30 years has watched this union-busting scheme unfold. I mean, many miners wanted to organize a union at these operations,” Petsonk said. “I grew up in these communities. I watched the parents of many of my friends choose to work in non-union jobs because of misrepresentations just like this. An entire generation of wealth that our miners thought they had earned is now gone because of these broken promises.”

Before beginning to offer the promise that CONSOL employees would have lifetime benefits, the company was a “wall-to-wall” union operation, Petsonk said. The misrepresentations were an attempt to compete with union operations, where workers were guaranteed more protections and legally mandated to receive those lifetime benefits through an act of congress.

“The judge found and agreed that Bobby Brown, the CEO of CONSOL [at the time] directed this scheme to defraud thousands of Appalachian coal miners out of joining the union, out of gaining those benefits,” Petsonk said. “That’s what the judge found, that is a finding of fact in this record.”

And the misrepresentations weren’t the only union-busting activities happening at the CONSOL mines. Other attempts were more direct and explicit — and they worked.

Jack remembers colleagues of his at the Enlow-Bailey mining complex beginning work to unionize around 1992. There were picket lines, walkouts and other traditional unionizing attempts. Jack said they had things thrown at them. Four of his tires were slashed. He and his colleagues were threatened and told that unionizing would lower their wages and mean worse health insurance.

“We retired thinking that way, thinking, ‘man, we did have better pay and we’re going to have all these great retirement benefits,’” Jack said. “Well, in the end we ended up with nothing. They gave us nothing they told us they would and they left us all without.”

Jack said it was clear that the attempts by CONSOL to remain non-union was a scheme because of how widespread the lies were told.

Sitting in a courtroom in 2021, when the case went to trial, he remembers looking around at other former miners he’d never met. Most worked in other states, many in different parts of the coal mining operations. All of them, however, had been fed the same lines about lifetime benefits throughout their careers, and now all of them were going without those promised benefits.

“I’m from Pennsylvania. There were some there from West Virginia, from Kentucky. And I just said to the judge, ‘isn’t it amazing that I never saw any of these people before? That we don’t know each other? But we all were told the same thing by the same people,” Jack recalls. “I mean, what are the odds of that? It was clear that it was planned to tell everybody the same thing and to just renege on the whole thing, right?”

What the case means and what’s next for the affected miners

The case brought to the federal court was not an all around win. Only two of the seven plaintiffs — including Prater — were successful in proving their cases against CONSOL, and those successes were only granted in part. Others were thrown out due to limitations with the claims process, missed deadlines and other technical reasons, as well as not enough clear evidence proving that they individually were misled by the company’s leadership.

Overall, at least 3,000 miners were affected by the misrepresentations and lies from CONSOL operators over decades. Petsonk said that while it’s good that the court saw clear merit in the case and the claims made within it, much work remains to get justice for all the miners. In last month’s order, the judge wrote that the claims would likely need to be decided on a case-by-case basis.

But that’s nearly impossible, Petsonk said.

Now, he and his colleagues are reassessing and moving forward with filing an appeal to last month’s order in the hopes that the case can turn into a class action proceeding for all those affected.

“We’re very grateful to the judge for finding merit in this case [but] we’re going to ask the appeals court to review, to see this as a class action,” Petsonk said.

In the meantime, however, those affected like Prater and Jack will remain in limbo.

While the judge ruled partially in favor of Prater, his benefits won’t kick back in until all appeals are adjudicated. And while the judge agreed that Jack proved his claims against CONSOL, his claim came too late to entitle him to a remedy.

For Jack, who was grateful to the judge for agreeing with his claims, continuing to go without the benefits is having real repercussions in his and his wife’s lives.

Throughout Jack’s last 25 years of employment, he never missed a single day of work. He took pride in what he did and believed those above him who promised his commitment would be worth it.

And coal mining, as well as aging, is hard on the body. Both Prater, Jack and their wives are paying thousands of dollars a year for out-of-pocket medical expenses that they never planned for.

In the years since their promised lifetime benefits were pulled, it’s been difficult for Jack and his wife to enjoy their retirement.

“When you’re working that long, especially for a coal mine, it’s three different shifts, it’s weekends, it’s long hours and a lot of things that you want to do in life, you sort of pull off until you retire,” Jack said. “Hopefully, at that time, your health is good enough to do those things. And so now we want to make plans to maybe travel a little bit, do the things we weren’t able to do when we were younger, but then these medical expenses come up that you never thought you’d have to pay. Those plans you have, you’re putting them aside again, and this time until when?”

This story is republished from West Virginia Watch, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.