Leckie Smokeless Coal Co., et al.

LECKIE SMOKELESS COAL CO. 329 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101, Telephone 723-2911, Extension 302. Leckie Smokeless Coal Co., et al .1 and United Mine Workers of America, Petitioner. Case 9-I?C-6572. August 5, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer William C. Mittendorf. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Following the hearing and, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, by direc- tion of the Regional Director for Region 9, this case was trans- ferred to the National Labor Relations Board for decision . Briefs have been filed by the Employer and the Petitioner. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Brown and Jenkins]. Upon the entire record in this case, including the briefs filed by the parties, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. The Petitioner seeks to represent a unit of all production and maintenance employees employed in and around the several mines, haulageways, and tipple facilities located on the property owned and controlled by Leckie Smokeless Coal Co., herein referred to as 'Others listed In the petition as "Employers" are as follows Marvin Hunter, d/b/a Browns Creek Coal Company Glen E Coulter, d/b/a Coulter Coal Company , Floyd Daniels, d/b/a Daniels Coal Company , Junior Hill, d/b/a I-Iill Coal Company , W F McClung, Jr d/b/a Katrina Coal Company , Richard Rose, d/b/a Rose Coal Company; Travis Tincher, d/b/a T & T Coal Company, Ben Coal Company, and B & B Coal Company These "Em- ployers" will be referred to herein as operators The latter is o operators ceased opera- tions after the petition was filed and did not appear at the heal mg After the petition was filed, opeiator'Ray E Smith, d/b/a Ray F Smith Coal Company, commenced operations under a contract identical to that of the other operators, and an- other operator, Identified only as the Bostic Coal Company, entered into a continct as a stripper and trucker These two operators Mere not included in the petition or sewed with a notice of the hearing, and they did not appear at the hearing However in view of our disposition hereinbelow, eve find that these operators did not need to be named as parties to this proceeding 160 NLRB No. 31. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer or Leckie, near Rupert, in Greenbrier County, West Virginia, including but not limited to those in and around the follow- ing mines, or mine openings, designated as : a. Leckie Smokeless Coal Company mine b. Ben Coal Company mine c. Browns Creek Coal Company mine d. B & B Coal Company mine e. Coulter Coal Company mine f. Daniels Coal Company mine g. Hill Coal Company mine h. Katrina Coal Company mine i. Rose Coal Company mine j. T & T Coal Company mine The Petitioner contends that all such employees should be included in a single unit as employees of Leckie. It argues, in effect, that the mine operators, other than Leckie, are supervisory employees of Leckie rather than independent contractors. The Employer contends that such a single unit is not appropriate because the mine opera- tors are independent contractors. Assuming the Board finds that the mine operators are independent contractors, the Petitioner contends, in the alternative, that a single unit of all production and mainte- nance employees working on the Leckie mining property is still the appropriate bargaining unit.' It argues, in substance, that the past history of effective collective bargaining on a single-unit basis at the Leckie mines, contrasted with ineffective bargaining on a multiunit basis, supports a single-unit finding. It also points to the frequent turnover in mine operators as a factor to be considered. On the other hand, the Employer contends that each mine operation is a separate entity and that elections should be held in separate units of employ- ees of each mine operator. The Employer owns or controls by lease approximately 42,000 acres of land in Greenbrier County, West Virginia. Since 1947 or 1948, the Employer has entered into written agreements with some 150 operators to conduct mining operations on a portion of this land. At the time of the hearing herein, nine such operators were extract- ing coal from various mines, all of which were being operated under permits issued to the Employer by the State Department of Mines. It appears that most of the mines are old openings from which the operators are recovering coal not extracted in earlier operations.3 In 2It is not entirely clear whether the Petitioner , by its alternative contention , requests a multiemployer unit, or a single unit on some other theory However, in view of our Decision herein, we need not reach or decide the Petitioner 's alternative unit request. 3 At least one operator is working a new mine, and testified that the Employer stripped the face of the coal , I e , exposed the coal from the overburden, to enable the operator to extract the coal LECKIE SMOKELESS COAL CO. 331 addition, the Employer, with personnel directly employed by it, con- ducts similar operations on a much larger scale in separate mines located on these same premises. Except as to the location of the mine, the agreements under which the operators work are identical. The agreements provide that the operators are required to furnish at their own cost and expense all labor, machinery, tools, supplies, and equipment required in the operations.4 They must employ, fix the compensation for, and dis- charge their own employees, pay their wages, make all payroll deduc- tions, and pay all taxes.-5 The operators are also required to carry, at their own cost, general comprehensive liability and property dam- age insurance coverage for their operations in such amounts as the Employer may require. The relationship between the Employer and the operators is defined in the agreements as that of owner and inde- pendent contractor. On the other hand, in order to insure the greatest practicable recovery of merchantable and mineable coal, the Employer reserves the right to prepare and furnish to the operators from time to time written plans of mining and projections, which the operators agree to follow. The Employer also furnishes such engineering services as may in its judgment be required to assure maximum recovery of coal and compliance with the obligations of the Employers The operators do not acquire the exclusive right, by the designation of specified areas in the agreements or by the supplying of the aforesaid plans for mining operations, to mine all of the coal in such areas, or to mine to exhaustion the coal in the seam in such areas, but acquire only the right to mine and remove so much of the coal as can be accomplished by the proper conduct of operations in compliance with, and during the life of, the agreements. Although the agree- ments specify that the Employer shall exercise no control over the *However , the evidence discloses that the operators are not required to put up any capital when they commence operations . Leckie testified that the operators may use any "equipment laying around ," whether it belongs to the Employer or some other operator. Indeed, the record shows that the Employer owns most, if not all, of the heavy equip- ment which is used in the mining operations , including the motors , mine cars, tracks, cutting machines , and ventilating machinery . The operators ' investment appeals to be primarily in the less expensive equipment , such as hand drills , pumps , car hoists, and cables. Although the operators may purchase their supplies elsewhere , most supplies are pur- chased from the Employer who debits such purchases against the coal delivered to the tipple. Similar debits are made for equipment repairs at the Employer's machine shop 5 The Employer admits that in rare cases it advances money to the operators over and above sums which it may owe for coal delivered to the tipple . However, it denies that this money is advanced specifically to meet an operator's payroll. 0 These services are furnished to the operators without charge. The Employer's engineers set the spads , which indicate the direction in which the mine will be worked , and are con- sulted before the operators may vary from the spads , or notified immediately thereafter. The engineers go into the mines in case of trouble and may give some directions to opera- tors when necessary to insure maximum recovery of coal. Leckie testified that this engineer- ing work is required by law and by the terms of its lease from the land company. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operators' employees or mining operations, the agreements provide an exception where the Employer considers it necessary for the pro- tection of its property or to enforce conformity to the plans of min- ing and projection which it has supplied. The Employer also reserves the right to keep inspectors at all the mining operations and at the tipple, and to refuse to pay for any coal offered for delivery which, according to the Employer's standards, is not in quality and condi- tion acceptable for preparation and sale. Moreover, the operators may not mine, remove, and deliver coal in excess of amounts estab- lished by the Employer. Title to all coal and the full right of per- centage depletion for tax purposes are reserved to the Employer, and the operators have no right to dispose of the coal to anyone other than to the Employer. The operators are paid a flat rate of $3.30 per net ton for coal delivered to and accepted at the tipple.' However, the operators may purchase rejected coal from the Employer at 50 cents per net ton, as stipulated in the agreements, and are free to dis- pose of such coal at will, so long as they do not hinder or obstruct the Employer's operations. Although the operators have the right to construct and install, at their cost and expense, such structures, facili- ties, or roads as they may consider desirable in their operations, the Employer reserves the right to designate the location on the premises of such facilities. The agreements run for 3 months, with automatic renewals for successive periods of like duration, but either party may terminate the agreement, without cause, upon 30 days' written notice. In addition, the Employer may terminate the agreements for breach or violation of any substantial provision thereof. Also, the agree- ments may be canceled if the operators transfer or assign them with- out the written consent of the Employer. In determining the status of persons alleged to be independent con- tractors, the Board has frequently held that the Act requires appli- cation of the "right of control" test. Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment. On the other hand, where control is reserved only as to the result sought, the relationship is that of an independ- ent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative." Although the evidence discloses several factors which are usually considered to indicate an independent contractor status, the presence of these factors does not alone establish such status. Thus, we do not 7 most of the coal is trucked to the tipple, apparently by arrangements between the operators and independent truckers However , one operator appears to transport his coal to the tipple over the Employer 's tracks and in the Employer 's cars at no additional cost for the use of this equipment 11 E.g, F. H. Snow Canning Company, 156 NLRB 1075. LECKIE SMOKELESS COAL CO. 333 regard as controlling the fact that a written agreement defines the relationship as one of independent contractor; that the operators hire and pay the employees who work the mines and make the usual payroll deductions; or that the operators make independent arrange- inents for the delivery of the coal to the tipple. It is clear that the result to be accomplished through the agree- ments is the production of coal for processing and sale to the Employer's customers. In accomplishing this result, the operators possess few of the traits which are characteristic of independent pro- ducers whose earnings are controlled by self-determined policies, per- sonal investment and expenditure, and market conditions. The oper- ators do not have a proprietary interest in the mines, or in the coal extracted therefrom, and cannot transfer or assign any rights to operate the mines without the written consent of the Employer. They acquire no right to sell the coal on the open market, but must deliver the coal to the Employer's tipple at a rate which is unilaterally deter- mined by the Employer. The operators' opportunities for profit are substantially impaired by the Employer's power to limit production, as well as by the Employer's ownership and control of the heavy equipment without which, it appears, the coal could not be profitably extracted from the mines. While the operators may theoretically increase their profits by the selective purchase of supplies, the rec- ord discloses that most of their supplies are purchased from the Employer. Also, the operators' risk of loss is substantially mini- mized by the engineering services provided by the Employer which are geared to attaining the maximum recovery of coal. By furnish- ing these engineering services and the heavy equipment, the Employer also exercises a measure of control over the manner and means by which the operators extract the coal. In addition, the Employer reserves the right to keep inspectors in the mines and to exercise ultimate control over the operators' employees and mining operations in order to protect its property or to enforce conformity to its plan of mining and projection. Moreover, the agreements are for a short term and may be terminated without cause, thus ending the entire arrangement between the Employer and the operators. In view of the foregoing and the record as a whole, we find that the operators are not independent contractors, but are supervisors of Leckie, and the individuals otherwise employed in the mines are working in the interest of Leckie as a part of its coordinated mining operations in Greenbrier County, West Virginia, and are employees of Leckie.' We therefore find that a question affecting commerce Cf. F. H. Snow Canning Company, supra ; East Coast Trawling & Dock Company, Inc., 153 NLRB 11.54; Witham P. Riggan & Son, Inc, 153 NLRB 1358. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exists concerning the representation of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) of the Act. The unit here requested is comprised of all the Employer 's employ- ees engaged in a coordinated mining operation in an employer- composed grouping of mines all contained in a common and clearly defined area of operations. As such, we find the requested unit appro- priate under accepted principles ,10 notwithstanding the possibility that a smaller unit limited to a single mine or a group of mines might in certain circumstances also be deemed appropriate.h1 4. We find the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All production and maintenance employees working in and around the several mines, haulageways, and tipple facilities located on the property owned and controlled by the Employer, near Rupert, in Greenbrier County, West Virginia, excluding operators, professional, technical , and office employees , guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 12 10 Metropolitan Life Insurance Company, 156 NLRB 1408. 11 Dixie Belle Mills, Inc., 139 NLRB 629; Sav-On Drugs, Inc., 138 NLRB 1032. 12 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 9 within 7 days after the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the- election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper ob- jections are filed. Excelsior Underwear Inc., 156 NLRB 1236. The Procter & Gamble Manufacturing Company and Independ- ent Oil & Chemical Workers, Inc., Formerly Known as The Procter & Gamble Independent Union of Port Ivory, N.Y., Inc., and as The Procter & Gamble Independent Union of Port Ivory, N.Y. Cases 29-CA--YO (formerly 2-CA-9155) and 46 (formerly 2-CA-9814). August 9, 1966 DECISION AND ORDER On October 20, 1965, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that Respondent 160 NLRB No. 36.