Wilton-Jellico Coal Co.

yr a In the Matter of A. M. GREENE, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF WILTON-JELLICO COAL COMPANY and UNITED MINE WORKERS OF AMERICA, DISTRICT #19 Case No. R-5019.-Decided April 26, 1943 Messrs. H. C. Gillis and A. M. Greene; for the Company. Mr. James C. Golden, for the Union. Miss Muriel J. Levor, of counsel to the Board. DECISION AND DIRECTION. OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Mine Workers of America, District #19, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of the employees of A. M. Greene, doing business under the firm name and style of Wilton-Jellico Coal Company, herein called the Company, employed at its Wilton Mining Properties, Knox County, Kentucky, herein called the Mines, and its coal screening and loading facilities at Woodbine, Kentucky, herein called the- Tipple, the National Labor Relations Board provided for an appropriate hearing upon due notice before Thomas E. Shroyer, Trial Examiner. Said hearing was held at Williamsburg, Kentucky, on March 15, 1943. The Company and the Union appeared, participated, and,were afforded full' oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rul- ings made at the hearing are free from prejudicial error and are hereby affirmed. The Company filed a brief which the Board has considered. . Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY A. M. Greene,. doing business under the firm name and style of Wilton-Jellico Coal Company, leases all the coal within the North 49 N. L. R. B., No. 20. 146 0 WILTON-JE'LLICO COAL COMPANY 147 Jellico Seam within the lands known as the Wilton Mining Properties, Knox.County, Kentucky, from the Black Star Coal Corporation, called the Black Star Company herein, which sells the coal extracted from the Mines for Greene, retaining a royalty and service charge and re- mitting the remainder to him. The principal coal seam has long since been exhausted and the out-crop coal is now being mined, of which about 70,500 tons was sold during 1942. Approximately 82 percent of the coal extracted is sold to the Louisville and Nashville Railroad, which uses the coal as fuel in connection with its interstate operations. Nearly all the rest of the coal is shipped to points outside the State of Kentucky. The Company operates facilities for loading this coal onto railroad gondolas at Woodbine, Kentucky. It is the persons operating the Mines and the Tipple with whom we are concerned in this proceeding. II. THE ORGANIZATION INVOLVED United Mine Workers of America, District #19, is a labor organi- zation admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The parties stipulated at the hearing that on or about October 30, 1942, the Union informed the Company that it represented a majority of its employees and requested the Company to bargain with it for its Tipple employees and'for all the men engaged in the operation of the Mines, including both haulers and miners. The Company refused to so recognize the Union and claimed the persons engaged in the mining operations and in hauling were not its employees, although it indicated that it was willing to recognize the Union as the representative of the Tipple employees if the Union represented a majority of them. A statement of the Trial Examiner, made at the hearing, indicates that the Union represents a substantial number of employees 1 in the unit hereinafter found appropriate.2' We find that a question affecting commerce has arisen concerning the representation of employees of the Company within the meaning of Section 9 '(c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The principal coal seam of the Mines was worked out, as previously stated, a number of years ago, by the North Jellico Coal Company, and I For reasons appearing in Section IV, below, we find that the miners and haulers are employees within the meaning of the Act. The Trial Examiner reported that the Union submitted 144 check-off orders, all beauung apparently genuine original signatures Ile was unable to make a check against the Company pay roll for the alleged appropriate unit since the'Company did not furnish it complete one however, the Trial Ex;umnei did make a check against a list of the Tipple crew and of persons having certain agreements with the Company, which list contained 30 names Sixteen signatures correspond with names on the list 541647-43-vol 49-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Mines were abandoned by the Black Star Company, the Company's lessor and the present owner of the lands in which the Mines are situ- ated. There remains an unknown quantity of out-crop coal most of which, because it has been discolored by percolating waters, is mar= ketable only for use as engine fuel by_railroads. After the lapse of some years, it appears that the Black Star Company made oral agree- ments with certain working miners, permitting them to extract out- crop coal on the payment of a royalty per ton. Thereafter, the Black Star Company leased the Mines to A. M. Greene in an agreement dated July 24, 1941, which provided that Greene should install suitable de- vices for screening coal and loading it on the railroad cars and grant- ing him the privilege of subleasing any or all parts of the Mines in compliance with the terms of the agreement. After the execution of the lease between Greene and the Black Star Company, the miners continued their labors as before, although a few of them have since sold the equipment they used in their mining oper- ations, tracks, cars, etc., to persons who have continued such operations. Sometime in 1941 the Company erected the Tipple at Woodbine, Ken- tucky, in accordance with the terms of the lease, and since that time it has required the miners to cease selling the coal- extracted and to deliver it. at the Tipple. The Company brought proceedings to enjoin 2 miners from continuing, operations at the Mines because they had sold coal elsewhere. A conciliator persuaded the Company to reinstate the min- ers'in their workings. Thereafter, the Company required the miners to sign contracts which, it appears; contain substantially the same terms as the previous oral agreements. Over 20. such contracts were signed. These contracts with the Company provide that the miner, herein called the Lessee, will operate a mine in a designated portion of the Mines in a workmanlike manner, assume liability for the in- juries and death of himself and any employees he may have in these operations, and deliver all coal mined to the Company, which retains title therein, at the Tipple, for which the Company agrees to pay a specified price per ton. These contracts further provide that the Lessee shall not be an employee nor an agent of the Company, but an inde- pendent contractor over whom the Company shall exercise no control. Those Lessees who are not hold-overs from agreements with the Black Star Company, or their successors, were granted permission by Greene to "make an opening" in a place designated by- Greene. Greene testi- fied that he endeavors to keep these openings about 400 feet apart in order to allow 200 feet on either side for "rooms." Sometimes the entries into the coal out-crop are not kept straight into th'e' mountain' and the Lessees "run together." At such times Greene is called upon to indicate the direction in .which the Lessees should continue their operations so that they will not interfere with each other's activities. WILTON-JELLICO COAL• COMPANY - 149 The Lessees furnish the necessary mining equipment, but Greene fur- nishes the timber for props. The Lessees have arrangements with from one to six persons who work with-them in extracting the coal. , In many cases only one other person, usually a close relative such as a brother or son, works with the Lessee, and he and the Lessee divide the money received from the Company. Another frequent arrangement is for the Lessee to pay 10 cents or 20 cents less per ton than he receives, to those who work with him. The record indicates that all these persons, Lessees, partners, or helpers, are skilled miners and work entirely on their own, the. Lessees exercising no supervision except to indicate where the others should work. As stated above, the Company requires that the coal extracted be delivered to its Tipple, which is located about 4 or 5 miles from the Mines. The coal is hauled there in trucks. Some of the Lessees do, their own hauling; others pay persons who do the hauling for several Lessees. The Union desires a unit composed of all persons engaged in the operation of the Mines, whether or not they have signed agreements, or work for such persons, or are engaged in hauling coal to the Company's Tipple, and the employees at the Tipple. The Company contends that only the Tipple employees, of whom there are eight, are employees of the Company and that the Lessees are independent contractors and not employees within the meaning of the Act. It further contends that the partners or helpers, as well as the haulers, are not its employees. In effect, the Company argues that it has nothing to do with the mining of the coal at the Mines except to receive and sell the coal which' is extracted. However, if these Lessees were "independent' con- tractors," we would have a whole battalion of contractors working for the same employer at his place of business and furnishing him with a personnel without which he could not operate. The Company exercises all the control over the miners and haulers that is required for the pur- pose of its business and the protection of its property interests. The Lessees, other miners, and haulers, constitute a labor force which ex- tracts the coal and conveys it to' the Tipple from whence it is shipped. 'The Board's policy has been to include within the coverage of the Act workers or wage earners whose livelihood depends on a continuing asso- ciation with an enterprise, and we have been guided by the factual ,character of the relationship rather than by the surface arrangements of lessor, lessee, or "independent contract." 3 As the Eighth Circuit said in upholding the Board's findings in a case with very similar facts : a See Matter of The Pai k Floral Company and United Greenhouse and Floral Workers Union No . 510 of the United Cannery, Agricultural , Packing and Allied Woi hers of America, affiliated with the Congress of Industrial Organizations, 19 N. L. It. B. 403 ; Matter of Interstate Granite Corporation and Granite Cutters' International Association of America, Charlotte Branch, 11 N. L. R. B. 1046 ; Matter of The Post -Standard Company and Inter- national Printing Pressmen it Assistants' Union of North America, 34 N. L. It. B. 226; 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent that through the labor of the miners on their land the respondents are continuously becoming the owners of ore pro- duced by such labor, and we think the Board correctly found that the respondents are not merely landowners but that they operate their property for the purpose of obtaining a money income from the mining and sale of the tiff located there. On the other hand, the miners work on the land in the day to day process of earning a living by labor in respondents' service. There is a continuing rela- tionship in a going enterprise . . . The miners are compen- sated in substantially the same way as are many thousands of others who work on a piece work basis throughout the country .4 The Board has frequently held that the employees of persons having agreements with the Company similar to the agreements'of the Lessees herein, are employees; and the Board has held that haulers chosen and paid by the miners are also employees.6 Accordingly, we find that the Lessees, the other miners, and the haulers are employees of the Com- pany within the meaning of Section 2 (2) and (3) of the Act. We find that all production and maintenance employees of the Com- pany, including all persons engaged' in mining coal on its Wilton Mining Properties, Knox County, Kentucky, all those engaged in haul- ing coal therefrom to the Company's loading facilities, and the em- ployees working at the Company's Tipple, Woodbine, Kentucky, ex- cept the foreman,, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. I V. TIIE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation, be resolved by means of an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, Matter of The Connor Lumber & Land Co and International Woodworkers of America„ Local No. 125 (C 1. 0.), 11 N L. It. B 776 See also Wolfe, "Determination of Employer- Employee Relationships in Social Legislation," 41 Col Law Rev. 1015 , and-Lehigh Valley Coal Co v. Yensavage, 218 Fed 547 (C. C. A. 2), cert. denied 235 U. S. 705. 4 Matter of R. A. Blount, Hearst B. Blount, Lonnie Flinn, and Eunice Simpson and International Union of Mine, Mill, and Smelter Workers, Local 113, affiliated with the C. I. O., 37 N. L. R. B. 662, enf'd 131 F. (2d) 585 (C. C. A. 8). i Matter of Veta Mines, Incorporated and Inte>national Union of Mine, Mill and Smelter Workers, 36 N. L. R B 288 ; Matter of S A. Kendall, Jr., H. E Ream, Stanley Ashby, and Lester Yutzy, Stanley, Coal Company, K? ay Coal Company, or whatever name doing busi-, ness, and J. P. Wright and United Mine Workers of America, District #31, -affiliated with the C ' 1. 0, 39 N. L It. B. 1071. Supra, footnote 4. 1 WILTON-JELLICO COAL COMPANY 151 and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as' part of the investigation to ascertain representa- tives for the purposes of collective bargaining with A. M. Greene, doing business under the firm name and style of Wilton-Jellico Coal Com- pany, Wilton and Woodbine, Kentucky, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and super- vision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including any such employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United, States who present themselves in person at the polls; but excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Mine Workers of Amer- ica, District #19, for the purposes of collective bargaining.