Panther Coal Co., Inc.

PANTHER COAL COMPANY, INC., ETC. 409 Panther Coal Company, Inc., and/or Lee & Blankenship Coal Co., Lester & Fox Coal Co., Rocky Gap Coal Co., Roberts Coal Co., E.T. Coal Co.' and United Mine Workers of America, Peti- tioner. Case No. 5-RC-3058. August 1, 1960 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Sidney Smith, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are affirmed. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organization named below claims to represent certain employees of the Employers. 3. Questions affecting commerce exist concerning the representation of certain employees of the Employers, within the meaning of Sec- tions 9(c) (1) and 2(6) and (7) of the Act. 4. The parties agree that the unit or units found appropriate should include generally underground and outside employees working in and around the mines and the tipple. They disagree, however, as to the scope of the unit. Petitioner seeks four separate units-one including the employees of E. T. and Roberts, and one each for Lee & Blanken- ship, Lester & Fox, and Rocky Gap. Panther contends that a single overall unit of employees at its mines is alone appropriate. Such a unit would include not only those employees sought by the Petitioner but employees at approximately 19 other mines not covered by the petition? Basically, Panther argues that the separate companies named in the petition are integral parts of its operations and organiza- tion, that all the employees involved are its employees, and that, con- sequently, neither the named companies nor their employees can be considered separately for unit purposes. There is no recent history of collective bargaining for the employees sought in the petition. Panther has a leasehold estate for an area of approximately 4 by 9 miles in western Virginia. In the area it has 24 mining units. 1 Herein referred to respectively as Panther, Lee & Blankenship, Lester & Fox, Rocky Gap, Roberts , and E.T The name of E.T Coal Co appears as amended at the bearing. 2 Representatives of Lee & Blankenship, Lester & Fox, and Rocky Gap appeared at the hearing but took no position on the unit. Though separately served with copies of the petition and notice of the hearing , E T and Roberts Coal Companies were not separately represented at the hearing . Panther and the Petitioner , in effect, stipulated that those two companies were in all respects integral parts of Panther, and not to any extent independent operations. 128 NLRB No. 45. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Panther has entered into oral agreements with certain individuals, herein called operators,' to conduct the actual mining operations, such individuals working under various styles such as Rocky Gap Coal Mining Company and Lee & Blankenship Coal Mining Company, involved here. The operators engage various employees to work in and about the mines. The coal is taken from the mines by truck or by truck and train to cleaning plants. The trucks and cleaning plants are owned and operated by Panther. The trains are common carriers and Panther pays all freight charges on the coal moved. After being cleaned, the coal is sold and shipped to Panther's customers. At all times until sold the coal belongs to Panther and cannot be sold on the open market by the operators. The income of the operators is the difference between their costs of operations and the amount they re- ceive on a per ton basis from Panther for the coal mined. Panther's payment to the operators is based on the market price for coal. Under their agreement with Panther the operators are primarily responsible for the day-to-day coal mining operations. They employ, as noted, miners and other necessary employees, determine their rates of pay and method of pay, and withhold social security and unem- ployment taxes. Panther can, and has, prevented an operator from hiring a particular employee and has required that employees be discharged. It transfers employees from one mine to another, when, for example, a mine closes for repairs, and the operators have no al- ternative but to accept the transferees. However, though some of the mines are no more than half a mile apart, there is among the employees sought no substantial regular interchange between mines insofar as the record shows, and such transfers as are made under direction of Panther appear to involve severance of employment with one op- erator and rehiring by another under the working conditions prevail- ing at that time. Panther maintains a hospitalization plan covering employees at all mines, payments for the protection being made, how- ever, by the individual employees through their own operators to Panther. Whenever an operator has for some reason or other failed to meet his payroll or other financial obligations, Panther has made the required payments which are, it contends, its own as well as the operator's obligations. The operators in carrying out their mining operations must supply at their own expense certain handtools and other equipment such as safety lights. All necessary heavy machinery is furnished and owned by Panther. Similarly, electric power is provided to each operation at Panther's expense. Also, Panther's engineers and electricians work from time to time in the different mines at no expense to the operator. s The following discussion insofar as it deals with the role of the "operators" Is not, in view of the parties' agreement noted in footnote 2 above, applicable to ET and Roberts. PANTHER COAL COMPANY, INC., ETC. 411 Whether or not a new mine shall be opened or an old one temporarily .shut down or abandoned, is a decision which Panther alone makes. Clearly, Panther controls to a considerable extent working condi- tions prevailing at the various operations. It can effectively recom- mend hiring and discharges, transfer employees, and otherwise affect the tenure and working conditions of employees. On the other hand each operator does in fact do most of the hiring and discharging for its own mine, determines rates and method of pay, and would seem to be responsible in its own interest for the direct supervision of the -employees in their day-to-day mining operations. In view of the control over the working conditions and terms of employment exer- cised by both Panther and the operators, we find contrary to the posi- tion of the parties, that at each mining operation both the individual -operator and Panther are jointly the Employers of the employees -sought by the Petitioner. Consequently, the unit embracing all its mines which Panther contends is alone appropriate is in effect a multi- employer unit 4 However, as there is no established bargaining his- tory on such a basis, a multiemployer unit clearly is not the only appropriate unit. Rather, under the circumstances here where each mining operation is under the immediate control of separate employer- operators and is basically a separate enterprise conducted by such operators, we find, despite the presence of the common joint employer, that units limited to the requested employees at Lee & Blankenship, Lester & Fox, and Rocky Gap mining operations constitute separate appropriate units .5 As noted, the parties agree that E.T. and Roberts coal mining com- panies are integral parts of Panther. The record shows that the min- ing operations of these two "companies," unlike the situation at any of the other Panther mines, are not carried out under agreements be- tween Panther and operators possessing the authority and responsi- bilities described above, but rather under the immediate control of a mine foreman or superintendent employed by Panther. Moreover, it appears from the record that E.T. and Roberts have no separate identity or corporate existence, and that they are in fact nothing more than wholly owned and controlled administrative segments of Panther's operations. Consequently, we find that Panther is the sole employer of the requested employees at the E.T. and Roberts mining operations, and is alone responsible for the working conditions and terms of employment for such employees. Moreover, except for the truckdrivers discussed below, it does not appear that Panther is the sole employer of any other employees in the classifications which the parties have agreed to include in the unit. Under these circum- stances we find that the requested employees at the E.T. and Roberts mining operations constitute a single appropriate unit. * Cf Mace's San Francisco, et al., 120 NLRB 69 a Macy's San Francisco, supra, at 72 412 DECISIONS Or NATIONAL LABOR RELATIONS BOARD The parties agreed that truckdrivers should be included in the unit. As indicated above the truckdrivers haul coal from the mines under the various operators. However, they appear to be under the exclu- sive control of Panther who assigns them to the various mining op- erations as needs require. Though the drivers appear from time to time on the payrolls of the operators, such payroll practice seems to be merely a device for allocating the cost of the trucking service supplied by Panther. Thus, we find that Panther is the sole employer of the truckdrivers and they shall be included in the Panther-E.T.- Roberts unit. - Accordingly, we find that the following employees of the named employers constitute separate units appropriate for purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: (1) All underground and outside employees working in and around the mines and tipple employed by Panther Coal Company, Inc., and Lee & Blankenship Coal Co., excluding technical and office employees, guards, and supervisors as defined in the Act. (2) All underground and outside employees working in and around the mines and tipple employed by Panther Coal Company, Inc., and Lester & Fox Coal Co., excluding technical and office employees, guards, and supervisors as defined in the Act. (3) All underground and outside employees working in and around the mines and tipple employed by Panther Coal Company, Inc., and Rocky Gap Coal Co., excluding technical and office employees, guards, and supervisors as defined in the Act. (4) All underground and outside employees working in and around the mines and tipple, including truckdrivers, employed by Panther Coal Company, Inc., at its E.T. Coal Co. and Roberts Coal Co. mining operations, but excluding technical and office employees, guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Aerosonic Instrument Corp. and Harry V. Miller and Edna Ludington. Cases Nos. 9-CA-957 and 9-CA-957-1. August 3y 1960 SUPPLEMENTAL DECISION AND ORDER On November 6, 1956, the National Labor Relations Board issued a Decision and Order in the above-entitled case,' which order was en- forced by the United States Court of Appeals for the Sixth Circuit by a decree entered on December 17, 1957' Thereafter, pursuant to a 3 116 NLRB 1502 2 249 F 2d 959 (C A. 6). We hereby correct the date of the court's decision , which is inadvertently set forth in the Intermediate Report as December 17, 1959. 128 NLRB No. 53.