The Marfork Five have filed a counterclaim against Marfork for harassment and assault and battery for its abuse of tree-sitters through the constant blaring of multiple air horns and flood lights in close proximity to the defendants. This excessive and unnecessary use of force posed a serious risk of bodily injury to the tree-sitters. Moreover, the noise deployed is believed to be in excess of the threshold for acceptable worksite noise levels articulated by the West Virginia Office of Miners’ Health Safety & Training. (To be sure, violations of this nature are not unusual.) Marfork Coal thus knowingly made the decision to expose not only the tree-sitters, but also its own employees, to unsafe and illicit levels of noise, demonstrating a level of disregard for workers’ safety that is unfortunately far too predictable for Massey subsidiaries. The Motion to Amend the counterclaim to add a claim of assault is currently awaiting judicial approval.
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