Jewell Smokeless Coal Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1968

170 N.L.R.B. 392 (N.L.R.B. 1968)

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jewell Smokeless Goal Corporation and Subsidiaries
and United Mine Workers of America, Petitioner.
` Case"5=RC 6159
March 15, 1968
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was-held before Hearing Officer August A.
Denhard, Jr. The Hearing Officer's rulings made at
the hearing are free from prejudicial error and are
hereby affirmed. Following the hearing and, pur-
suant to Section 102.67 of the National Labor
-Relations Board Rules and Regulations and State-
ments of Procedure, Series 8, as amended, this case
was ' transferred, by direction of the Regional
Director for Region 5, to the National Labor-Rela-
tions Board for decision. A brief has been filed"-On
behalf of the Alleged Subsidiaries," and a-"Stipula-
tion" between Jewell Smokeless Coal Corporation
and Subsidiaries' and the Petitioner has been
received.
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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, including the
brief, 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 jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer 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
employees of suppliers engaged in the mining and
hauling of coal on the properties owned by or
leased to Jewell Smokeless 'Coal Corporation in
Buchanan County, Virginia, but excluding all office
clerical employees, guards, and supervisors as
defined in the Act and all employees of Jewell
Smokeless Coal Corporation who are currently
represented.2 -
The Employer and the operators contend that a
single unit is not appropriate because the mine
operators are independent contractors. They argue
that - each mine operation is a separate entity and
that elections should -be held in separate units of
employees of each mine operator. In support of the
requested unit," the Petitioner-,,in effect, contends
that the mine operators are supervisory employees
of Jewell rather than independent contractors. Al-
ternatively, the Petitioner apparently contends that
Jewell, if not the sole employer of these employees,
is at least a joint employer with each individual
operator. As the- record amply- supports Petitioner's
alternative contention of a ' joint employer relation-
ship,_we need not decide whether the record would
also support the single employer theory.
Jewell Smokeless Coal Corporation is engaged in
Vansant, Virginia, in" the processing of coal and
coke. As of September 30, 1967, there were about
22 coal suppliers operating on property owned by
or leased to Jewell; the suppliers mine the coal and
deliver it to Jewell at the latter's plant tipple 3
There is a substantial turnover in the identity of the
operators who mine on Jewell property. The record
reveals that the following conditions prevail with
respect to the operators on the Jewell Corpora-
tion's properties:
Jewell pays a fixed fee on a tonnage basis for coal
delivered to its plant tipple. It provides the en-
gineering of the mines, including the surveying and
mapmaking; the building and maintenance of ac-
cess 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 opera-
tion of mine equipment and, for about 70 percent
of the operators, Jewell carries the workmen's com-
pensation.' 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,
' Those served with notice of the hearing as "Subsidiaries" are as fol-
lows: Horn Branch Coal Company, Northco Coal Company, Horn &
Whited Coal Company, Jeff Coal Company, Leffew Brothers Coal Com-
pany, C. V. H. Coal Company, Horn & Keen Coal Company, Lawson
Brothers Coal Company, Hurley Absher Coal Company, Bulger Ridge Coat
Company, Ward & Honaker Coal Company, Cliff Coal Company, Ball
Brothers Coal Company, White Branch Coal Company, G. W. Wimmer
Coal Company, Peerless Goodman Coal Co., Perry Coal Company, Jay
Short Coal Co., Janice Coal Co., White Coal Co., Jack Ward Coal Co., T.
& E. Coal Co., Mark Allen Coal Co., Doris Coal Co., Northco Mining Co.,
Horn Branch Coal Co., Sue Coal Co., White Burch Mining Co., W. R.
Honaker Coal Co., Sand Hill Coat Co., R. B. Coal Co., Ford Coat Co.,
Liberty Coat Co., Oakwood Red Ash Coal Co. , and Burley Osborne 'Coal
Co. These "Subsidiaries" will be referred to herein as operators or sup-
pliers.
2 Petitioner represents a unit consisting of all employees on the Jewell
payroll, who are engaged in the preparation of coal and the production and
manufacture of coke. There are no employees on the Jewell payroll who
are engaged in the mining of coal or the delivery of same to the Jewell
plant.
I Jewell also purchases coal from six other suppliers who do not operate
on Jewell properties . Petitioner does not seek to include the employees of
these other suppliers.
i When Jewelovides the electric power or carries the workmen's com-
pensation , deductions are made on a tonnage basis from the price received
by the supplier for coal.
170 NLRB No. 52
JEWELL SMOKELESS COAL CORPORATION 393
Jewell makes inspections of the mines to determine
that the removal of coal conforms to the engineer-
ing plan and is consistent with well-established min-
ing practices. Also Jewell occasionally has meetings
with the suppliers to advise them of changes in min-
ing 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 em-
ployees 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 em-
ployee, and has established no requirements with
respect to who the suppliers may hire. As to in-
terchange among the employees of different opera-
tors 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 opera-
tor'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 of the coal itself
remains vested in the Jewell Corporation. All coal
mined on its properties, pursuant to the terms of
the oral agreements, must be delivered to Jewell's
plant tipple and may not be sold to other
purchasers.' Jewell has had occasion to terminate
these oral agreements for failure to operate the
mines, poor production, and failure to operate
safely or in an orderly and prescribed manner.
The value of each operator's equipment utilized
in the mine operation varies from $35,000 to
$250,000. Jewell may advance money to operators
for the purchase of mining equipment, taking a lien
on the equipment as security. It is not clear from
the record how often this procedure is followed,
nor what the actual capital investment of any in-
dividual operator actually is. Other factors which
bear on whether or not the operators are merely su-
pervisors of Jewell are equally unclear.
Thus, on the basis of the record before us, we are
unable to conclude that the operators are or are not
independent contractors. However, in view of
Jewell's critical control over the suppliers' opera-
tions, the record does establish that Jewell is at
least the joint employer of these employees and
that Jewell and each of the suppliers are engaged in
one common enterprise under the aegis of Jewell.8
Thus, as noted, Jewell provides the engineering of
the mines, and, in order to insure the greatest prac-
ticable recovery of merchantable and mineable
coal, the operators are obliged to mine the coal in
the manner in which it is engineered by Jewell.
Jewell regularly inspects the mines to insure that
the operations meet the Jewell standards. It is obvi-
ous that in this way, Jewell exercises considerable
control over the manner and means by which the
operators extract the coal. The ownership of the
coal, as well as the mines , remains at all times
vested in Jewell. The operators acquire no right to
sell the coal on the open market, but must deliver
the coal to Jewell's tipple at a rate which Jewell
sets, without regard to the operator's mining or
hauling costs. Finally, the entire arrangement
between Jewell and an operator can be terminated
at any time, without notice or cause. Indeed, Jewell
has so terminated agreements when the per-
formance of operators proved unsatisfactory.
Under the circumstances, and considering the in-
dustrial realities of the coal mining industry, the
conclusion is inescapable that Jewell is a necessary
party to meaningful collective bargaining and is, at
the least, "an employer" of the employees sought
by the Petitioner, and that all the employees in-
volved herein share a community of interest. Thus,
the unit determination we make parallels the em-
ployment conditions the parties have established.
In view of the foregoing and the record as a
whole, we find that the following employees con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act: All employees of suppliers engaged in
the mining and hauling of coal on the properties
owned by or leased to Jewell Smokeless Coal Cor-
poration in Buchanan County, Virginia, but exclud-
ing all office clerical employees, guards and super-
' Although Jewell does not carry on its payroll employees who are en-
gaged 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 minesite
" Several operators also have mines in addition to those on Jewell proper-
ties, and there is some interchange among their employees
' With respect to contracts with operators who mine on property not
owned or leased by Jewell, there is no requirement that they sell only to
Jewell As the Jewell general manager testified, "They are free agents and
can do as they please "
s Cf. Checker Cab Company, 141 NLRB 583
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors as defined in the Act and all employees of [Direction of Election9 omitted from publica-
Jewell Smokeless Coal Corporation who are cur- tion.]
rently represented.
9 An election eligibility list, containing the names and addresses of all the Regional Director except in extraordinary circumstances Failure to
eligible voters , must be filed by the Employer with the Regional Director comply with this requirement shall be grounds for'setting aside the election
for Region 5 within 7 days after the date of this Decision and Direction of whenever proper objections are filed Excelsior Underwear Inc., 156 NLRB
Election The Regional Director shall make the list available to all parties 1236
to the election No extension of time to file this list shall be granted by the