Kentucky Prince Coal Corp.

National Labor Relations Board - Board Decisions

Dec 4, 1980

253 N.L.R.B. 559 (N.L.R.B. 1980)

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