CHARLESTON, W.Va. Without court intervention, coal operator Massey Energy Co. will get what it wanted by illegally refusing to rehire union workers at a West Virginia coal mine, a National Labor Relations Board lawyer argued Friday.

The NLRB wants a federal injunction requiring Massey to rehire 85 United Mine Workers members and recognize and negotiate with the union at an eastern Kanawha County mine operated by subsidiary Spartan Mining.

An administrative law judge concluded last November that Massey violated federal labor law by refusing to offer the miners new jobs after buying the mine in 2004. The NLRB is trying to get the administrative law judge's ruling enforced until the labor board addresses his decision.

The 85 miners are getting older, leaving the area for jobs and may be unable to return to work when the labor board reaches a final decision in the case, NLRB lawyer Jonathan Duffey said during closing arguments at a hearing on the injunction request Charleston federal court.

If they're not around, the order requiring Massey to recognize the union will be nullified because the bargaining unit will be made up of people who've never been UMW members, Duffey told U.S. District Judge Joseph Goodwin.

"The union would have no power when it does return," he said. Massey will achieve its illegal aims "through the passage of time."

Spartan lawyer Forrest Roles countered that the NLRB caused much of the harm itself by failing to seek an injunction when it filed the unfair labor complaint in 2006. Moreover, Roles argued that Goodwin must balance the harm suffered by union workers with their nonunion replacements, who he says are better paid and have better working conditions. "The harm would be greater," he said.

Massey, the nation's fourth-largest coal producer by revenue, largely rid itself of the union in the 1980s. Today, about 110, or 2 percent, of the company's 5,400 workers in West Virginia, Virginia and Kentucky are represented by the UMW. All work at one smaller surface mine or six prep plants that handle 28 percent of Massey's coal.

Final briefs in the case are not due for several weeks.