Leckie Smokeless Coal Co., et al.

National Labor Relations Board - Board Decisions

Aug 5, 1966

160 N.L.R.B. 329 (N.L.R.B. 1966)

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.