Century Aluminum retirees continue fighting in court - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

Century Aluminum retirees continue fighting in court

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Roughly 30 retirees and other supporters gathered Sept. 10 outside Century Aluminum, popping open blue and tan canopies nearly as faded as the shuttered plant's entrance sign across from them. 

The group is no stranger to occupying, protesting and picketing the company's claim that it had a reservation of rights to change, cancel or terminate benefits at any time.

The men, and some women, mostly in their 50s and 60s, pounded signs into the ground as soon as they arrived as swiftly as they later poured cups of coffee, settling in for the day. 

It was a show of support for Ravenswood retiree spokesman Karen Gorrell, the wife of a retiree, who was asked to provide a deposition at the plant. Century has been calling for depositions from retirees as part of the company's discovery process in a civil court case over retiree health benefits that started in 2009. 

"She has got some guts," retiree Luke Dickerson said about Gorrell. "We're lucky to have her."

Speaking up for the spokesman

The biggest question for some 400 people around Ravenswood these days isn't how the season will go for the Red Devils. 

It isn't if or when the Century Aluminum plant might reopen. 

It's how much longer those Century Aluminum retirees, spouses and widows will have to fight with the company to get health insurance.

Century spokesman Mike Dildine gave something of a partial answer this week.

"Restarting the Ravenswood smelter remains a priority for Century," Dildine wrote in an email. "We have no news to report at the present time."

The company's representatives have repeatedly said it is committed to restarting the smelter plant it closed in February 2009. A handful of employees do daily maintenance inside to keep the plant ready for a restart.

The closure cost the region 651 jobs, and the company began notifying its retirees in October 2009 their health insurance would come at a cost starting Jan. 1, 2010. 

Since that time, the retirees have argued to anybody who would listen that their lifetime benefits were negotiated through each union contract, often in exchange for lower wages.

For Gorrell, the word "commitment" doesn't mean much when it comes from Century Aluminum.

Gorrell wore a pink T-shirt Sept. 10 with a photo of Century CEO Mike Bless hugging her during last year's stretch of protesting at the plant, and the words "Century does have blood on our hands, and we don't want anymore! CEO – Mike Bless."

Gorrell's shirt had more words on it, attributed to her conversations with the company's North American Operations Vice President John Hoerner: "Century does want to get this plant open, and we want to get your benefits back. You know me, I'm on your side."

And a third block of words her shirt quoted as being from Century's attorney, Stan Weiner: "I understand you want benefits for a lifetime, and I understand why. I also believe as you do, this is what was promised to you. Before now, Century was not willing to offer anything, but they are now."

Benefits as a bargaining chip

The retirees spent most of their time the past two years in the middle of a special rate hearing the plant pursued with the Public Service Commission of West Virginia.

The West Virginia Legislature passed a bill in 2012 to set up a tax credit and to allow a special power price for energy-intensive, industrial consumers. The bill also took the retirees and their health benefits into consideration, thanks to lobbying on the retirees' part. The agreement was the restart of the Jackson County plant and would reinstate retiree benefits.

Century and Appalachian Power were engaged in a rate case with the PSC from May through October 2012, with several different rate structures proposed to try to find the balance between helping Century weather a tough metals market but relieving AEP and other ratepayers from an unfair burden. 

The company never accepted the PSC's Oct. 4, 2012, final order for a special rate for the plant. In the meantime, Century announced April 29 it had entered into a definitive agreement to acquire all of the assets of the Sebree aluminum smelter in Kentucky.

Throughout the rate negotiations and the lingering $40 million tax credit question of whether the Ravenswood plant would reopen, a drawn-out court case remained open.

Century Aluminum of West Virginia filed a complaint for declaratory judgment Nov. 2, 2009. The retirees then filed a complaint for breach of labor contract and for breach of the Employee Retirement Income Security Act of 1974 plan, demanding a jury trial.

The cases would eventually get combined and assigned to U.S. District Judge John T. Copenhaver Jr.

The case for benefits

The retirees asked for, and were denied, a preliminary injunction. The debate is over the collective bargaining agreements and whether they allow the company to make the changes it did.

During that February 2010 hearing, Century's attorney called the company's actions "very simple," stating that the company announced the changes and met with the union on several occasions, but the company was threatened by legal action, so it requested the declaratory judgment.

The retirees' lawyer argued, "What is a retirement benefit if it doesn't last through retirement?" 

Copenhaver examined collective bargaining agreements starting in the 1980s when he issued his denial of the request for a preliminary injunction in June 2010. The retirees appealed, and in April 2011, even more retirees, from the 2006-10 time period, were added to the case.

In August 2011, the U.S. Court of Appeals for the Fourth Circuit agreed with Copenhaver's decision, but the rest of the questions in the case remained.

Completing the case

An order set a timeline with a trial penciled in for November 2011, but it never happened. 

Century pressed for the case to be dismissed, then both sides told Copenhaver they were working on a settlement agreement. It never appeared, and in December 2012, Copenhaver issued another order, calling for the case to carry on.

"The settlement negotiations anticipated to lead to that document apparently stalled later in the summer, and evaporated entirely in the fall, on dates unknown," Copenhaver wrote. 

He analyzed the situation in the order.

"Century asserts that it is entitled to dismissal inasmuch as the ‘unambiguous language in the applicable documents combined with the legal standard set forth by the Fourth Circuit demonstrate that the retiree health benefits were not vested' and thus subject to reduction or elimination at any time," he wrote.

"In sum, it is one thing to conclude, as this court an the court of appeals have done, that the retirees lack a clear likelihood of success on the merits," his order continued. "It is quite another, based upon the foregoing discussion, to conclude that they have not stated a plausible claim. They have."

His order was for the case to continue and for the evidentiary record to be completed.

Discovery phase

So this case that started back in 2009 is still in the discovery phase, which is considered part of the pre-trial procedure. Retirees who already have provided depositions have a few words to describe their trips through the double doors and to the big, long conference room on the left.

"It's pretty annoying," said retiree Jim Weltner who was at the plant this week to support Gorrell. He gave his own deposition in July. 

"They try to twist everything around," he said. "There was arguing, him pointing out certain sentences, (I had said), asking me, ‘Where does it say you had the benefits?'"

Weltner said his lasted two-and-a-half hours.

Gorrell's husband, Mike Gorrell, spent about an hour and a half giving his deposition Sept. 10, but he was not allowed to be present while Karen Gorrell gave hers, which lasted more than two hours.

He said Century had two lawyers present along with a man who was recording everything, and he had two union lawyers with him in the conference room he had never been in during the 33 years he worked at the plant.

He said Century's lawyers asked him a lot of questions, such as how he knew he had lifetime benefits, who he spoke to, when and where.

"We figured before I retired, as many battles as we had been through with this place over the years, they should have been over with," Mike Gorrell said.

Discovery in the case was extended until Oct. 4.