Jewell Smokeless Coal Corp.Download PDFNational Labor Relations Board - Board DecisionsMar 25, 1969175 N.L.R.B. 57 (N.L.R.B. 1969) Copy Citation JEWELL SMOKELESS COAL CORP. Jewell Smokeless Coal Corporation and Ellis Horn and Woodrow Keene , Partners in Horn and Keene Coal Company . Case 5-CA-3903 March 25, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On October 22, 1968, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was, engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. We agree with the Trial Examiner. that the Respondent is a joint employer of the employees of Horn and Keene Coal Company, herein called H&K We also agree that the Respondent discharged these employees in violation of Section 8(a)(3) and (I) of the Act, when it cut off the electric power at the mine operated by H&K, canceled its lease arrangement with H&K, and thereby terminated H&K's- employees because they engaged in union activity. Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, in the manner recommended by the Trial Examiner, with the following modifications. We shall order the Respondent to offer the discharged employees reinstatement to their former or substantially equivalent positions either independently or jointly with H & K, as an employer of these employees, H & K willing We shall also order the Respondent to make whole the 10 dischargees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, from August 21, 1967, on which date they were unable to resume work because of the Respondent's unlawful action of shutting down the mine, until they are offered 57 reinstatement, or if no jobs are available until they are placed on a preferential hiring list by ' the Respondent, in the aforesaid manner ORDER, Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Jewell 'Smokeless Coal Corporation,' Vansant, Buchanan County, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from- (a) Discouraging membership in District 28, United Mine Workers of America, or in any other labor organization of its employees, by causing their discharge or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Make whole Gary Dean Keene, Lewey Albert Keene, Monroe Horn, Kelly Boyd, Millard Ward, Arthur Stilwell, Hoover Horn, Jimmie Keen, Dannie Lynard, and Lewis Van Dyke for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them Any backpay due shall be determined and computed in the manner set forth in this Decision and Order. (b) Offer the above-named employees reinstatement to their former or substantially equivalent positions either independently, or jointly with Horn & Keene Coal Company, as an employer of these employees, that company willing in the event jobs are not available, the Respondent shall place these employees on a preferential hiring list at its coal and coke operations or at the mine operations where it is an employer of employees (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and other benefits due under the terms of this Order. (e) Post at its offices and tipples in Buchanan County, Virginia, copies of the attached notice marked "Appendix."' Copies of said notice on ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words " a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals Enforcing an Order " 175 NLRB No. 12 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forms provided by the Regional Director for Region 5, shall, after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that. WE WILL NOT discourage membership in District 28, United Mine Workers of America, or in any other labor organization of our employees, or of the employees of any of our mine operators, by terminating the operator by procuring any dischrage, or otherwise. Nor will we in any manner interfere with the rights of our employees under the Act. WE WILL make whole the following named individuals for any loss of pay suffered as a result of the discrimination against them: Gary Dean Keene Arthur Stilwell Lewey Albert Keene Hoover Horn Monroe Horn Jimmie Keen Kelly Boyd Dannie Lynard Millard Ward Lewis Van Dyke WE WILL offer the above-named employees reinstatement to their former or substantially equivalent positions either independently or jointly with Horn and Keene Coal Company, as an employer of these employees, that company willing In the event jobs are not available, we shall place these employees on a preferential hiring list at our coati and coke operations or at the mine operations where we are an employer of employees. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees have the right to join or support any labor union, or not to do so. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. JEWELL SMOKELESS COAL CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21202, Telephone 301-962-2822. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner This case was heard at Abingdon, Virginia, on August 20, 1968, pursuant to a complaint issued by the General Counsel of the National Labor Relations Board on June 14, 1968, upon a charge filed on September 18, 1967, by Ellis Horn and Woodrow Keene, partners in Horn and Keene Coal Company, herein called Horn and Keene. I granted the unopposed motion to intervene of District 28, United Mine Workers of America, herein called the Union. The complaint alleges that Respondent -- Jewell Smokeless Coal Corporation violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, herein called the Act, by discharging 10 employees because of their Union membership and activities. The General Counsel and Respondent have filed briefs Upon the entire record, including my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Virginia corporation, is engaged in Buchanan County, Virginia, in the mining and processing of coal and the manufacturing of coke. Its annual interstate purchases and sales each exceed $50,000 I find, as Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) of the Act. ii. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE RELATIONSHIP BETWEEN RESPONDENT AND HORN AND KEENE Respondent is engaged at Vansant, Virginia, in the processing of coal and coke. In August 1967, Horn and Keene was one of a number of operators mining coal on property owned by or leased to Respondent. The operators are paid a fixed fee for each ton of coal delivered to Respondent's tipples at Vansant and Whitewood, Virginia The operators are required to mine the coal in the manner in which it is engineered by Respondent, which inspects the mines at least once every 2 weeks to see that the removal of coal conforms to the engineering plan and Respondent's production and safety standards. The agreements between Respondent and the operators are oral and terminable at will. A uniform tonnage rate for the same quality of coal is paid, regardless of the difficulty in mining it or the distance it must be hauled. The ownership of the coal remains at all times vested in Respondent. The coal must be delivered to a tipple designated by Respondent and may not be sold to JEWELL SMOKELESS COAL CORP. other purchasers Respondent has on occasion terminated its oral agreements with operators for failure to operate the mines, poor production, and failure to operate safely or in an orderly and prescribed manner In March 1968, the Board issued a Decision and Direction of Election finding from the foregoing facts' that Respondent and the operators were engaged in a "common enterprise under [Respondent's] aegis," that Respondent had "critical control" of the operators' operations, and that Respondent was "at least the joint employer" of the operators' employees Jewell Smokeless Coal Corporation and Subsidiaries, Case 5-RC-6159 (170 NLRB No 52). No additional evidence on the relationship between Respondent and the operators was adduced at the August 20, 1968, hearing in this proceeding affecting the Board's determination in the representation proceeding that Respondent was "at least" the joint employer of the operators' employees i find that Respondent was at all relevant times the joint employer of the Horn and Keene employees involved in this proceeding. Respondent contends that the facts in this case are similar to those in N L R B v Norma Mining Corporation, et al , 206 F.2d 38 (C A 4), where the court held that mine operators were independent contractors and their employees were not the employees of the processor Even assuming that the facts in Norma are essentially the same as the facts here,' the Board's finding in the representation proceeding that Respondent is a joint employer of its operators' employees is binding upon me I therefore reject Respondent's contention based upon Norma that it is not a joint employer of the Horn and Keene employees The General Counsel contends that the testimony adduced in the representation proceeding, as supplemented by the record in this case, warrants a finding that the operators are supervisors for Respondent rather than independent contractors, and therefore that Respondent is the employer of the mine employees.' In view of my "joint employer" finding, it is unnecessary for disposition of this case to determine whether the operators are supervisors or independent contractors 'The transcript of testimony in the representation proceeding was received into evidence as G C Exh 2 'The operators in Norma had written agreements with the processor whereby they prepared their own plans and specifications for the mining of coal, and carried on the mining operation subject to limited inspection by the processor Norma Mining Corporation, 101 NLRB 944, 958 It therefore would seem that the processor in Norma. unlike Respondent, did not exercise "considerable control over the manner and means by which the operators extract the coal " Jewell Smokeless Coal Corporation and Subsidiaries, supra 'The Board ' s findings in the representation proceeding concerning the conditions which prevail with respect to the operators are set out in Appendix B to this Decision The General Counsel adduced evidence that an operator may not turn over his interest in a mine to another operator without the consent of Respondent , that Respondent may insist that an operator buy equipment to increase production , that the operators ' payrolls are keyed to Respondent 's system of paying the operators bi-weekly, that miners take a physical examination at Respondent's expense as a prerequisite to employment , that Respondent has told operators not to hire particular miners with poor safety records , and that operators submit accident reports on routine injuries to Respondent and look to Respondent for assistance in the event of serious accident It further appears that Horn and Keene had an actual capital investment in equipment such as mine locomotives and cars, coal cutters , and drills of about $9,000 and that this equipment was originally financed in part by a loan from Respondent and in part from a bank IV TiIF UM\ 'AIR 1 ABOR PRACTICES A Sequence of Events 59 The Union won a Board election in December 1966 and was certified as the collective-bargaining representative of Respondent's tipple and coke oven employees. Bargaining negotiations began in June 1967,° but did not result in a contract Respondent's "inside" employees struck on Monday, August 14 and established picket lines at the tipples and coke ovens A Union organizer visited the mines during the first week of the strike and asked the employees to support the strike. Several mines, including the Horn and Keene mine, did not operate during the first week of the strike Horn and Keene employed two truckdrivers and eight miners when the strike began Gary and Lewey Keene, sons of partner Woodrow Keene, were the truckdrivers On Monday morning, August 14, Gary Keene loaded his truck at the Horn and Keene mine tipple. His brother Lewey, who had stopped to get gasoline, drove up and told Gary that he had heard at the gas station that the Union had set up a picket line at the Whitewood tipple, where Horn and Keene delivered its coal to Respondent Gary told Lewey to park his truck and go along with him to "see what was going on " At the Whitewood tipple, they found pickets carrying signs with the legend "Please Honor Our Picket Line, This Mine is On Strike, UMWA " Gary asked the pickets if he could dump the "one load of coal" and was told he could do so He dumped the load of coal and he and his brother returned to the Horn and Keene mine. Gary told Woodrow Keene about the picket line and said he was not going to haul coal across it The mine operations stopped about i I a m. when the mine tipple was filled up That afternoon, Woodrow and Gary Keene spoke to some pickets for about 10 minutes On Tuesday, August 15, Gary and Lewey Keene visited the Union's strike headquarters near the entrance to Respondent's main office at Vansant and "stayed down there a few minutes " On Thursday, August 17, Woodrow, Gary, and Lewey Keene, and some Horn and Keene miners signed Union cards at the strike headquarters. By Saturday, August 19, 9 of the 10 Horn and Keene employees had signed up with the Union On that day, Horn and Keene signed a standard Union operating contract That same day, pursuant to complaints presented by B R Thompson president of Respondent, the County Court of Buchanan County issued warrants charging 12 persons, including Woodrow and Gary Keene, with unlawfully picketing Respondent's premises from August 14 through August 18' At a Union meeting on Sunday, August 20, Woodrow Keene announced that Horn and Keene had signed a contract with the Union and would resume work on Monday morning Following the meeting, Woodrow Keene and Ellis Horn went to the mine in order to charge the batteries which powered the mine tow cars and discovered that their electric power had been cut off.' Keene went home and called Orville Estep, Respondent's chief electrician He told Estep the power was off at the mine and Estep said he would check and call him back Estep did not call back that night 'All dates hereinafter are in 1967 unless otherwise noted 'The Keenes did not picket during this period The charges were subsequently dropped by Respondent 'The electric power was still connected on Friday, August 18, when the 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next morning, all the Horn and Keene employees reported to the mine at the usual hour of 7 a m but the electricity was still cut off Gary and Lewey Keene loaded their trucks from the mine tipple and Woodrow Keene told them to "check with the weighman" at the Whitewood tipple. About 45 minutes later, a Keene son reported back that "they" would get in touch with Estep and tell him he was wanted at the Horn and Keene mine Woodrow Keene dismissed the mine employees about 9 a.m , saying that they would work the next day "if we get the power turned on." Keene, Ellis Horn, and employee Monroe Horn got into Keene's pickup truck and drove off to find Estep. They found Estep in the company of Manager Gene Mathis and Engineer Lee Brown Mathis said he had had Estep cut the power off at the mine "for the simple reason that Jewell Smokeless doesn't want you to operate any more for them " On September 26, Respondent directed Horn and Keene to remove their equipment from the mine The next day, Horn and Keene removed their equipment from the mine, except for "permanent installations" such as wiring and timbers, and another operator moved his equipment in. Woodrow Keene, Ellis Horn, and some of their employees began picketing the mine about 2 months later B Analysis and Conclusions The Horn and Keene mine was shut down on Monday, August 14, the first day of the strike. Gary and Lewey Keene, who had decided not to cross the Union's picket line at the Whitewood tipple, visited the Union's strike headquarters on Tuesday, and during the next few days, 9 of the 10 Horn and Keene employees signed cards at the Union's strike headquarters On Saturday, August 19, the day Horn and Keene executed a standard Union contract, Respondent's president, B. R. Thompson, caused warrants of arrest to be issued against Woodrow and Gary Keene for allegedly engaging in unlawful picketing of Respondent's premises.' About this time, respondent cut the electric power off at the Horn and Keene mine. Manager Gene Mathis refused to restore the power on Monday, August 21, and told Woodrow Keene, in the presence of Ellis Horn and a mine employee that Respondent did not want Horn and Keene "to operate any more" for it Mathis testified that production had been low at the Horn and Keene mine, that his superiors had advised him 3 or 4 months before the strike that Woodrow Keene "had been guilty of some highly improper activities" in previous employment with Respondent and "was not the type of man we wanted to do business with", and, as it was "standard procedure" to disconnect power from "an idle mine," that he decided to terminate Horn and Keene when the mine stopped operating "for some reason." I do not credit Mathis' explanation for the Horn and Keene termination. The record shows that Respondent had never complained to Horn and Keene about low production and that Horn and Keene production was at its peak just before the strike . Whatever Woodrow Keene's past employment record with Respondent, Respondent accepted him as an operator in December 1965. As the partners had been at the mine 'Thompson , as Respondent's president , was involved in unfair labor practices stemming out of the Union ' s organizing of the tipple and coke oven employees The Board found , inter alto, that Respondent discriminatorily laid off nine employees in 1964 ( 153 NLRB 1460) and that it discriminated against two employees in 1966 ( 163 NLRB No 82) cessation of operations at the Horn and Keene mine coincided with the beginning of the strike on August 14, 1 reject Mathis' testimony to the effect that he did not know that the Horn and Keene mine was "idle" because of the strike. In view of the foregoing, and as Mathis himself conceded that Horn and Keene "probably" would not have been terminated had it continued to deliver coal after the Union established a picket line on August 14, I find that Respondent's termination of the Horn and Keene operation was not motivated by low production, by Woodrow Keene's past employment record with Respondent, or by the failure of Horn and Keene to notify Respondent why it had stopped operating The record establishes that the electric power at the Horn and Keene mine was cut off a day or two after Woodrow Keene, his sons Gary and Lewey Keene, and other Horn and Keene employees signed cards at the Union's strike headquarters on Thursday, August 17 Whether or not Respondent was aware how far union activity had spread among the Horn and Keene employees, President Thompson's swearing out of warrants against Woodrow and Gary Keene on Saturday, August 19, shows he knew' or believed that Gary Keene actively supported the union and that his father not only did not oppose union activity among his employees but was himself a union supporter I find under all the circumstances - including Respondent's history of opposition to unionization of its operations, Respondent's knowledge that the Horn and Keene mine had been idled by the strike, the cutting off of electric power at the mine shortly after Respondent learned of union activity among the Horn and Keene employees, and Respondent's meretricious explanation for this action - that Respondent terminated Horn and Keene, so effecting the discharge of Horn and Keene employees, in order to discourage its operators' employees from supporting the Union As I have found that Respondent is the coemployer of such employees, I conclude that Respondent violated Section 8(a)(3) and (1) of the Act by discharging the Horn and Keene employees on or about August 19, 1967." N.L.R.B v Gibraltar Industries, Inc , 307 F.2d 428 (C.A 4), cert. denied 372 U.S. 911 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3. Respondent violated Section 8(a)(3) and (1) of the Act by discharging the 10 employees named in paragraph VI of the complaint 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. TIIE REMEDY It has been found that Respondent discriminatorily discharged the Horn and Keene employees. As Respondent and not Horn and Keene was responsible for the discrimination against these employees, Horn and Keene cannot be ordered to resume operations. I therefore ' I consider that the Horn and Keene employees were effectively discharged when Respondent cut off the electric power at the mine, as the record shows that Respondent did not intend to permit further operation of the mine by Horn and Keene JEWELL SMOKELESS COAL CORP. shall recommend that Respondent offer to engage Horn and Keene as an operator on the same terms as its other operators. I shall further recommend that Respondent make whole the 10 employees named in paragraph VI of the complaint for any loss of pay they may have suffered by reason of Respondent's discrimination against them from August 21, the day the Horn and Keene employees appeared at the mine to resume work, until Respondent makes a proper offer to Horn and Keene Backpay shall be computed in the manner set forth in F. W Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716. RECOMMENDED ORDER Upon the entire record in this case, it is recommended that Respondent, Jewell Smokeless Coal Corporation, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees or of the employees of its coemployers by causing their discharge or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner, interfering with, restraining, or coercing its employees or the employees of its coemployers in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer to engage Horn and Keene Coal Company, on the same terms offered to other operators, to operate the mine which they formerly operated for Respondent or, if that mine can no longer be profitably operated, a comparable mine. (b) Make whole the individuals named in paragraph VI of the complaint for any loss of earnings suffered by reason of the discrimination against them, in the manner set forth in "The Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and other benefits due under the terms of this Recommended Order (d) Post at its offices and tipples in Buchanan County, Virginia, copies of the attached notice marked "Appendix A ""[Board's Appendix substituted for Trial Examiner's.] Copies of said notice on forms provided by the Regional Director for Region 5, shall, after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what 'If this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision a. I Order " steps have been taken to comply herewith i° 61 "If this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for the Fifth Region, in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX B Excerpts from Case 5-RC-6159 Jewell pays a fixed fee on a tonnage basis for coal delivered to its plant tipple. It provides the engineering of the mines, including the surveying and map-making, the building and maintenance of access roadways; the raw lumber for erection, at the operator' s expense , of a mine tipple. In some cases Jewell also provides electric power for the operation of mine equipment and, for about 70 percent of the operators, Jewell carries the workmen's compensation.' The operators are obliged to mine the coal in the manner in which it is engineered by Jewell Regularly, at least once every 2 weeks, Jewell makes inspections of the mines to determine that the removal of coal conforms to the engineering plan and is consistent with well established mining practices Also Jewell occasionally has meetings with the suppliers to advise them of changes in mining laws, safety practices, etc. Although three employees testified that they were hired by the Jewell personnel manager , there is evidence that hiring, firing and direction of employees is done by the operator and, except for those maintained in connection with the payment of workmen's compensation, Jewell keeps no record of an operator's employees' Jewell has never caused the termination of an operating employee, and has established no requirements with respect to who the suppliers may hire. As to interchange among the employees of different operators on the Jewell properties, three employees testified of their transfers from one supplier' s mine to another, one of them was so transferred on two separate occasions" and worked under the same superintendent at all three locations . The operators have separate tax numbers. They withhold taxes, and make all Social Security contributions for their employees. Each operator is registered with the State of Virginia as the operator of the mine for which he has contracted with Jewell, and the operator's mine foreman is separately licensed with the State of Virginia as an employee of the specific operator. There are no written agreements between Jewell and the operators, all such agreements being oral and terminable at will A uniform tonnage rate for the same quality of coal is paid, regardless of the difficulty in mining it or the distance it must be hauled. In all cases the ownership ofithe coal itself remains vested in the Jewell Corporation All coal mined on its properties pursuant to the terms of the oral agreements , must be 'When Jewell provides the electric power or carries the workmen's compensation , deductions are made on a tonnage basis from the price received by the supplier for coal 'Although Jewell does not carry on its payroll employees who are engaged in mining or transporting coal, it does assist operators in the repair of damaged equipment by sending experienced mechanics from the Jewell plant to the mine site 'Several operators also have mines in addition to those on Jewell properties, and there is some interchange among their employees 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD delivered to Jewell's plant tipple and may not be sold to procedure is followed, nor, what the actual capital other purchasers.' Jewell has had occasion to terminate investment of any individual operator actually is Other these oral agreements for failure to operate the mines, factors which bear on whether or not the operators are poor production, and failure to operate safely or in an merely supervisors of Jewell are equally unclear. orderly manner. The value of each operator's equipment utilized in the mine operation varies from $35,000 to $250,000. Jewell 'with respect to contracts with operators who mine on property not may advance money to operators for the purchase of owned or leased by Jewell, there is no requirement that they sell only to mining equipment, taking a lien on the equipment as Jewell As the Jewell general manager testified, "They are free agents and security. It is not clear from the record how often this can do as they please Copy with citationCopy as parenthetical citation