Panther Coal Co., Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1960

128 N.L.R.B. 409 (N.L.R.B. 1960)

PANTHER COAL COMPANY, INC., ETC. 409
Panther Coal Company, Inc., and/or Lee & Blankenship Coal
Co., Lester & Fox Coal Co., Rocky Gap Coal Co., Roberts Coal
Co., E.T . Coal Co.' and United Mine Workers of America, Peti-
tioner. Case No. 5-RC-3058. August 1, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Sidney Smith, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are affirmed.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organization named below claims to represent certain
employees of the Employers.
3. Questions affecting commerce exist concerning the representation
of certain employees of the Employers, within the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act.
4. The parties agree that the unit or units found appropriate should
include generally underground and outside employees working in and
around the mines and the tipple. They disagree, however, as to the
scope of the unit. Petitioner seeks four separate units-one including
the employees of E. T. and Roberts, and one each for Lee & Blanken-
ship, Lester & Fox, and Rocky Gap. Panther contends that a single
overall unit of employees at its mines is alone appropriate. Such a
unit would include not only those employees sought by the Petitioner
but employees at approximately 19 other mines not covered by the
petition? Basically, Panther argues that the separate companies
named in the petition are integral parts of its operations and organiza-
tion, that all the employees involved are its employees, and that, con-
sequently, neither the named companies nor their employees can be
considered separately for unit purposes. There is no recent history
of collective bargaining for the employees sought in the petition.
Panther has a leasehold estate for an area of approximately 4 by
9 miles in western Virginia. In the area it has 24 mining units.
1 Herein referred to respectively as Panther, Lee & Blankenship, Lester & Fox, Rocky
Gap, Roberts , and E.T The name of E.T Coal Co appears as amended at the bearing.
2 Representatives of Lee & Blankenship, Lester & Fox, and Rocky Gap appeared at the
hearing but took no position on the unit . Though separately served with copies of the
petition and notice of the hearing , E T and Roberts Coal Companies were not separately
represented at the hearing . Panther and the Petitioner , in effect, stipulated that those
two companies were in all respects integral parts of Panther, and not to any extent
independent operations.
128 NLRB No. 45.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Panther has entered into oral agreements with certain individuals,
herein called operators,' to conduct the actual mining operations, such
individuals working under various styles such as Rocky Gap Coal
Mining Company and Lee & Blankenship Coal Mining Company,
involved here. The operators engage various employees to work in
and about the mines. The coal is taken from the mines by truck or by
truck and train to cleaning plants. The trucks and cleaning plants
are owned and operated by Panther. The trains are common carriers
and Panther pays all freight charges on the coal moved. After being
cleaned, the coal is sold and shipped to Panther's customers. At all
times until sold the coal belongs to Panther and cannot be sold on the
open market by the operators. The income of the operators is the
difference between their costs of operations and the amount they re-
ceive on a per ton basis from Panther for the coal mined. Panther's
payment to the operators is based on the market price for coal.
Under their agreement with Panther the operators are primarily
responsible for the day-to-day coal mining operations. They employ,
as noted, miners and other necessary employees, determine their rates
of pay and method of pay, and withhold social security and unem-
ployment taxes. Panther can, and has, prevented an operator from
hiring a particular employee and has required that employees be
discharged. It transfers employees from one mine to another, when,
for example, a mine closes for repairs, and the operators have no al-
ternative but to accept the transferees. However, though some of the
mines are no more than half a mile apart, there is among the employees
sought no substantial regular interchange between mines insofar as
the record shows, and such transfers as are made under direction of
Panther appear to involve severance of employment with one op-
erator and rehiring by another under the working conditions prevail-
ing at that time. Panther maintains a hospitalization plan covering
employees at all mines, payments for the protection being made, how-
ever, by the individual employees through their own operators to
Panther. Whenever an operator has for some reason or other failed
to meet his payroll or other financial obligations, Panther has made
the required payments which are, it contends, its own as well as the
operator's obligations.
The operators in carrying out their mining operations must supply
at their own expense certain handtools and other equipment such as
safety lights. All necessary heavy machinery is furnished and owned
by Panther. Similarly, electric power is provided to each operation
at Panther's expense. Also, Panther's engineers and electricians work
from time to time in the different mines at no expense to the operator.
s The following discussion insofar as it deals with the role of the "operators" Is not,
in view of the parties ' agreement noted in footnote 2 above, applicable to ET and
Roberts.
PANTHER COAL COMPANY, INC., ETC. 411
Whether or not a new mine shall be opened or an old one temporarily
.shut down or abandoned, is a decision which Panther alone makes.
Clearly, Panther controls to a considerable extent working condi-
tions prevailing at the various operations. It can effectively recom-
mend hiring and discharges, transfer employees, and otherwise affect
the tenure and working conditions of employees. On the other hand
each operator does in fact do most of the hiring and discharging for
its own mine, determines rates and method of pay, and would seem to
be responsible in its own interest for the direct supervision of the
-employees in their day-to-day mining operations. In view of the
control over the working conditions and terms of employment exer-
cised by both Panther and the operators, we find contrary to the posi-
tion of the parties, that at each mining operation both the individual
-operator and Panther are jointly the Employers of the employees
-sought by the Petitioner. Consequently, the unit embracing all its
mines which Panther contends is alone appropriate is in effect a multi-
employer unit 4 However, as there is no established bargaining his-
tory on such a basis, a multiemployer unit clearly is not the only
appropriate unit. Rather, under the circumstances here where each
mining operation is under the immediate control of separate employer-
operators and is basically a separate enterprise conducted by such
operators, we find, despite the presence of the common joint employer,
that units limited to the requested employees at Lee & Blankenship,
Lester & Fox, and Rocky Gap mining operations constitute separate
appropriate units .5
As noted, the parties agree that E.T. and Roberts coal mining com-
panies are integral parts of Panther. The record shows that the min-
ing operations of these two "companies," unlike the situation at any of
the other Panther mines, are not carried out under agreements be-
tween Panther and operators possessing the authority and responsi-
bilities described above, but rather under the immediate control of a
mine foreman or superintendent employed by Panther. Moreover, it
appears from the record that E.T. and Roberts have no separate
identity or corporate existence, and that they are in fact nothing
more than wholly owned and controlled administrative segments of
Panther's operations. Consequently, we find that Panther is the
sole employer of the requested employees at the E.T. and Roberts
mining operations, and is alone responsible for the working conditions
and terms of employment for such employees. Moreover, except for
the truckdrivers discussed below, it does not appear that Panther is
the sole employer of any other employees in the classifications which
the parties have agreed to include in the unit. Under these circum-
stances we find that the requested employees at the E.T. and Roberts
mining operations constitute a single appropriate unit.
* Cf Mace's San Francisco , et al ., 120 NLRB 69
a Macy's San Francisco , supra, at 72
412 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
The parties agreed that truckdrivers should be included in the unit.
As indicated above the truckdrivers haul coal from the mines under
the various operators. However, they appear to be under the exclu-
sive control of Panther who assigns them to the various mining op-
erations as needs require. Though the drivers appear from time to
time on the payrolls of the operators, such payroll practice seems to
be merely a device for allocating the cost of the trucking service
supplied by Panther. Thus, we find that Panther is the sole employer
of the truckdrivers and they shall be included in the Panther-E.T.-
Roberts unit.
- Accordingly, we find that the following employees of the named
employers constitute separate units appropriate for purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act:
(1) All underground and outside employees working in and around
the mines and tipple employed by Panther Coal Company, Inc., and
Lee & Blankenship Coal Co., excluding technical and office employees,
guards, and supervisors as defined in the Act.
(2) All underground and outside employees working in and around
the mines and tipple employed by Panther Coal Company, Inc., and
Lester & Fox Coal Co., excluding technical and office employees,
guards, and supervisors as defined in the Act.
(3) All underground and outside employees working in and around
the mines and tipple employed by Panther Coal Company, Inc., and
Rocky Gap Coal Co., excluding technical and office employees, guards,
and supervisors as defined in the Act.
(4) All underground and outside employees working in and around
the mines and tipple, including truckdrivers, employed by Panther
Coal Company, Inc., at its E.T. Coal Co. and Roberts Coal Co. mining
operations, but excluding technical and office employees, guards, and
supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
Aerosonic Instrument Corp . and Harry V. Miller and Edna
Ludington. Cases Nos. 9-CA-957 and 9-CA-957-1. August 3y
1960
SUPPLEMENTAL DECISION AND ORDER
On November 6, 1956, the National Labor Relations Board issued a
Decision and Order in the above-entitled case,' which order was en-
forced by the United States Court of Appeals for the Sixth Circuit by
a decree entered on December 17, 1957' Thereafter, pursuant to a
3 116 NLRB 1502
2 249 F 2d 959 (C A. 6). We hereby correct the date of the court's decision , which is
inadvertently set forth in the Intermediate Report as December 17, 1959.
128 NLRB No. 53.