Kentucky Prince Coal Corp.

KENTUCKY PRINCE COAL CORPORATION Kentucky Prince Coal Corporation and Kentucky Prince Employees Association, 2 Petitioner. Case 9-RC-12982 December 4, 1980 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MFMBIERS PENE.ILO ANI) TRUF.SDAI.E Upon a petition filed under Section 9(c) of the National Labor Relations Act, as amended, hear- ings were held on July 10, 1979, before Hearing Officer Bruce H. Meizlich, and on September 6, 1979, before Hearing Officer Jane E. Ballenger. Following the hearings and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director for Region 9 transferred this case to the Board for decision. Thereafter, the Em- ployer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case the Board finds: 2. The parties stipulated that the Employer is a Kentucky corporation engaged in the business of mining and processing coal in Perry County, Ken- tucky. During the past 12 months, a representative period, the Employer purchased and received goods and materials valued in excess of $50,000 which were shipped to its Perry County, Ken- tucky, facility directly from different points outside the Commonwealth of Kentucky. We therefore find that the Employer is engaged in commerce within the meaning of the Act. The Employer initially declined to stipulate to the Petitioner's status as a labor organization. In a Memorandum of Understanding dated July 19, 1979, the parties agreed that the Petitioner is a labor organization as defined in Section 2(5) of the Act. We note additionally that the record reveals that the Petitioner has no constitution or bylaws and has never been a party to any collective-bar- gaining agreement. However, the Petitioner was formed in June 1979, shortly before the filing of the petition herein, and the instant case involves the Petitioner's first organizational drive. More- The name of the Employer appears as amended at the hearing 2 Hereinafter referred to as the Petitioner over, it is clear from the record that the Petitioner is an organization "in which employees participate" and exists for the purpose of bargaining collective- ly with the Employer regarding terms and condi- tions of employment. Accordingly, based on the parties stipulation and the facts, we find that the Petitioner meets the definition of labor organization set forth in Sections 2(5) of the Act. 3. A question affecting commerce exists concern- ing the representation of certain employes of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all miners, equipment operators, maintenance employ- ees, coal haulers,3 watchmen, and tipple operators. The Employer takes the position that the coal haul- ers are not employees within the meaning of Sec- tion 2(3) of the Act, but are independent contrac- tors who should be excluded from the unit sought by the Petitioner herein. Additionally, the Employ- er asserts that its two or three watchmen are guards within the meaning of Section 9(b)(3) of the Act and, accordingly, should be excluded from the unit sought. Coal Haulers The Employer uses a pool of coal hauling trucks driven by owner-operators, part-owner operators, and nonowner-operators to transport coal from its three surface minesites to various tipples.4 There are no written contracts between truck owners or drivers, and the Employer apparently keeps no per- sonnel records on the coal haulers. Regardless of who is driving a truck, the Em- ployer pays the owner. All of the truck owners are compensated at the same rate, which is based on the combined factors of the number of tons of coal hauled by their trucks, the type of coal, and the distance it was carried.5 Truck owners are required to repair their own trucks and are responsible for gas, oil, and other maintenance expenses. 6 Some haulers buy fuel from the Employer, the cost of which is deducted from their weekly checks from the Employer. I The Petitioner does not seek to represent any owner of a coal haul- ing truck who does not actually drive the truck. 4 The number of contract haulers utilized by the Employer depends on the amount of coal being mined at any one time. At the time of the second hearing, the Employer was utilizing 14 contract coal hauling trucks. Of these, six were operated by drivers who owned the trucks. two were operated by drivers who were part-owners of the trucks, and six were operated by nonowner-operators. These last trucks were os lned by various trucking companies. s Occasionally, the Employer pays haulers with trucks on an hourly basis to perform discrete tasks such as transferring cal from stockpiles to tipples for processing 6 One truck owner testified that he keeps records of expenses incurred and deducts hem on his tax return as a self-employed taxpayer 253 NLRB No. 70 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unlike the other classifications sought by the Pe- titioner herein, the Employer does not handle haul- ers' workmen's compensation, unemployment com- pensation, or social security, nor does it withhold taxes on their behalf. While the Employer pays 100 percent of the premiums for major medical and dental coverage for the other job classifications sought, it makes no contribution for the haulers. Upon request, a hauler may come under the Em- ployer's group insurance coverage but must pay 100 percent of the premiums himself. Truck owners must also provide liability insurance for their trucks. Further, unlike the other employees sought, haulers receive no vacation or holiday pay. And, while the Employer gives a monthly "tonnage bonus" to the other job classifications based on the number of tons of coal mined that month, haulers receive no such bonus. Although the Employer may not substitute a dif- ferent driver on a truck without the owner's con- sent, truck owners may switch drivers without the Employer's knowledge or consent. One owner tes- tified that he had obtained a substitute driver on a truck for 5 to 6 months and had never informed the Employer. When a truck is driven by a non- owner, the Employer pays the owner in the usual manner by the ton, and the owner, in turn, pays the driver either by the load or on a salaried basis. Owners also withhold taxes and provide for social security and workmen's compensation for the driv- ers of their vehicles. The trucks do not bear the Employer's insignia and there are apparently no re- strictions on using the trucks for other companies. Haulers are not subject to the oral work rules re- garding such things as lunch hours and abuse of equipment that other job classifications are subject to, and there is no evidence that any of the haulers have ever been reprimanded for any rule infrac- tions. The Employer does reserve the right to tell drivers where to haul coal and to caution drivers about drunk or reckless driving. A speed limit for coal trucks is posted on company roads and occa- sionally the Employer will pass on to the drivers the neighbors' complaints about speeding on county roads. On one occasion, the police depart- ment of Hazard, Kentucky, told the Employer to lighten loads of coal carried over county roads. Thereafter, the Employer instructed its loadermen to load less coal on the hauling trucks. No evi- dence was presented of any sort of safety inspec- tion of the coal hauling trucks by the Employer. Subject to the Employer's unilateral decision concerning the quantity and destination of coal to be hauled each day, and the time when it will be hauled, the individual hauler sets his own hours. A hauler who does not show up for work is not disci- plined, but there is some indication that repeated unexplained absences of a given truck would lead to its removal from the pool. However, there is no evidence that this has ever occurred. The drivers themselves have come up with a rotation system for more even distribution of coal hauls and the Employer has agreed to the system. Similarly, the drivers have agreed among themselves upon a par- ticular route to be followed without the Employ- er's prior approval. There is little evidence of interchange between coal haulers and other job classifications sought herein, although the Employer does employ other truckdrivers, known as rock drivers. Rock trucks haul exclusively on company property and are en- gaged in shifting rock for reclamation purposes. Rock trucks are maintained by the Employer and it supplies fuel for them. The Employer pays rock drivers on an hourly basis, withholds taxes on their behalf, and provides them with the same benefits afforded nondriver employees. In N.L.R.B. v. United Insurance Company, 390 U.S. 254 (1968), the Supreme Court held that the Board "should apply the common-law agency test . . . in distinguishing an employee from an inde- pendent contractor." 7 Accordingly, the Board finds a relationship to be one of employment when the one for whom the services are performed re- tains the right to control the manner and means by which the desired result is to be accomplished. On the other hand, where control is reserved only as to the result sought, the Board finds the relation- ship is that of an independent contractor.8 In ap- plying this "right-to-control" test, "all of the inci- dents of the relationship must be assessed and weighed with no one factor being decisive." 9 There are a number of features of the relation- ship between the haulers and the Employer here that would tend to point toward an employment relationship. For example, the functions of the coal haulers are essential to the Employer's normal op- erations and there is no evidence that coal haulers are required to have special qualifications or prior experience. Further, at least those haulers who are owner-operators are paid at the same rate and, ap- parently, the Employer unilaterally determines what that rate will be. Additionally, there is no written contract between the haulers and the Em- ployer. Nevertheless, for the reasons set forth below, we find that the factors characteristic of in- dependent contractors outweigh those that would indicate that the haulers are employees. 7 390 U.S. at 256. Air ransit. Inc., 248 NLRB 1302. 1306 (1980). "390 U.S. at 258. Some relevant factors are listed in Restatement of Agency 2d, sec 220 (1958) 560 KENTUCKY PRINCE COAL CORPORATION Significantly, it appears that the primary relation- ship here, as far as the Employer is concerned, is between the Employer and the truck owners rather than that between the Employer and the drivers.'° Thus, as noted previously, the Employer keeps no personnel records on drivers and is not always aware of who is driving a given truck. The Em- ployer provides no benefits to the haulers, makes no social security, unemployment, or workmen's compensation payments, and withholds no taxes on their behalf. In fact, payment by the Employer is made to the truck's owner, regardless of the identi- ty of the driver. Those haulers who are nonowner- operators are paid by the truck owners, and the truck owners, in turn, determine the haulers' pay, withhold taxes, and make social security, unem- ployment, and workmen's compensation payments on their behalf. Although it appears that the Employer unilater- ally determines the rate of payment for hauling, this rate is based on the amount of work done and not the hours worked. The haulers themselves have set up a rotation system and fixed routes to equalize distribution of loads and resultant remu- neration. And the Employer agreed to honor these arrangements but did not compel them. As for the extent to which the haulers are identi- fied with the Employer, neither the hauling trucks nor the drivers' uniforms bear company insignia. Additionally, trucks are not restricted to use on behalf of the Employer. Although the working re- lationship between some of the drivers and the Em- ployer has some degree of permanence, the Em- ployer does not determine who drives the trucks, and the truck owners can and do substitute drivers at will. The Employer does exert minimal oversight con- cerning the speed at which trucks are operated and the extent to which they may be loaded but this concern is often triggered by a complaint received by the Employer from some other source. Howev- er, apart from this and from setting payment rates to the owners, there is no evidence that the Em- ployer can or does exert any control over the terms and conditions of the haulers' work. 2 More- over, there is no evidence that the Employer has 1o Needless to say, only in some instances are the owners also the dris- ers. e' We note that some of the nonowner-operators may be paid by the owners on an hourly basis Additionally, on infrequent occasions, he haulers are asked to perform tasks other than their normal ssork on an hourly basis. 12 The Employer does unilaterally determine the time, amount, and destination of coal hauling, but such a determination is primarily con- cerned with the result to be achieved rather than the means Ito achieve it disciplined a driver, or that it reserves the right to do so. '3 Finally, those drivers who own their trucks have a substantial investment in them. They are responsi- ble for their maintenance and fuel, as well as for li- ability insurance. This sort of investment, with its attendant responsibilities, has an entrepreneurial character, not here outweighed by other controls exerted by the Company. The status of these haulers as independent con- tractors is particularly evident when they are com- pared with other classifications sought, particularly the rock truck drivers. Unlike the haulers, the Em- ployer keeps personnel records for these employ- ees, pays their medical and dental insurance premi- ums in full, makes payments for unemployment, workmen's compensation, and social security on their behalf, withholds for their taxes, and subjects them to a variety of work rules. Further, these em- ployes receive a "tonnage bonus" which is not of- fered to the haulers. We note that the haulers' relationship with the Employer here is distinguishable from those in two other recent cases where the Board found employ- ee rather than independent contractor status. The haulers here differ from the taxi drivers in Air Transit. Inc., supra, particularly in their freedom to substitute other drivers and in the lack of past or present rules of conduct or discipline imposed on them by the Employer. Similarly, there is no evi- dence here of the extensive government regulation which introduced many of the elements of employ- ment into the working relationship in Mitchell Bros. Truck Lines, 249 NLRB 476 (1980). Finally, we note that the facts herein are distinguishable from those in Georgia Pacific Corporation, etc., 225 NLRB 866 (1976). In that case, the contract truck- ers found to be employees were subject to greater control by the employer under the relevant gov- ernment regulations and the terms of their written contract with the employer. Compare Georgia Pa- cific Corp., 249 NLRB 1280 (1980). In view of all the foregoing, we find the coal haulers sought by the Petitioner to be independent contractors rather than employees. Accordingly, we shall exclude them from the unit found appro- priate herein.' 4 ia There is some testimony in the record that if a driver repeatedly fails to report for work, he will be removed from the truck pool, hut there is no evidence that any supervisor has been authorized to effect such remioval or that it has ever occurred 14 11 light of our conclusion regarding the haulers' status as independ- elt contractors, we find it unnecessary to address the issue of their com- munity of interest with other employees Member Penello agrees that the coal haulers are independent contrac- tor, In reaching this result, he finds it unnecessary to dishniquish this case from 41r ransir, supra. in hich he dissented from the majority's finding that certain axicab drisvers are not independent contractors 561 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Watchmen The Employer is required by its insurance carri- er, as a condition of coverage of its property, to have watchmen on duty guarding its equipment at any time that its employees are not working. Ac- cordingly, depending on the length of the day shifts, the Employer's watchmen may work up to 14 or 16 hours per shift. The watchmen are re- quired to perform certain nonguard functions such as fueling the equipment, getting mud off the trucks in winter, and pumping water out of pits where too much water has accumulated. These duties, however, only require several hours of the watchman's time, and the majority of their work- day is spent on their primary function, which is guarding the Employer's equipment. The watch- men do not wear uniforms or badges. Although they are not specifically authorized to carry weap- ons, they do carry handguns with the Employer's apparent knowledge and consent. A fence encloses the Employer's facility and normally only the fore- men and watchmen possess keys to the gate. Addi- tionally, watchmen have been provided with C-B equipment to contact outside help if necessary. The record indicates that the watchmen spend a majority of their time performing their primary function of guarding the Employer's equipment. While they do not generally enforce company rules against the Employer's employees because employ- ees are not present during the hours they work, they are charged with protecting the Employer's equipment from all nighttime intruders, presumably including employee intruders. They possess keys to which the other employees do not have access, are supplied with a C-B radio, and are permitted to carry handguns. In view of the above, we conclude that the watchmen are charged with enforcing against employees and other persons rules to pro- tect the property of the Employer within the meaning of Section 9(b)(3) of the Act. According- ly, they must be excluded from the unit found ap- propriate herein. 5 Accordingly, we find that the following unit is appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All miners, equipment operators, maintenance workers, and tipple operators; but excluding all coal haulers, watchmen and guards, office personnel, professional employees and supervi- sors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] See, e.g., Iexas Electric Cooperatives. Inc.. Treating Divisorn 160 NLRB 440. 451 (96hh); 14archmonitors. Inc., 128 NLRB 903 (1960). 562