National Labor Relations Bd. v. Norma Mining Corp.

• Decision Date: 13 July 1953
• Docket Number: No. 6582.,6582.
• Citation: 206 F.2d 38
• Parties: NATIONAL LABOR RELATIONS BOARD v. NORMA MINING CORP. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

206 F.2d 38 (1953)

NATIONAL LABOR RELATIONS BOARD v. NORMA MINING CORP. et al.

No. 6582.

United States Court of Appeals Fourth Circuit.

Argued June 24, 1953.

Decided July 13, 1953.

Owsley Vose, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Rose Mary Filipowicz, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Harold R. Schmidt, Pittsburgh, Pa. (Thomas G. Shufflebarger, Richlands, Va., Jacob M. Murdock, John L. Laubach, Jr., and Rose, Rose & Houston, Pittsburgh, Pa., on the brief), for respondents.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This case is before us upon a petition of the National Labor Relations Board (hereinafter called the Board) for the enforcement of its order against the respondents herein.

The Board's order requires the respondents Norma Mining Corporation (hereinafter called Norma), Alfredton Coal Company (a partnership hereinafter called Alfredton), and Ward Brothers' Coal Company (a partnership, hereinafter called Ward), to cease and desist from discouraging membership in any labor organization by discriminatory practices and from interfering with, restraining, or coercing their employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act (hereinafter called the Act), 29 U.S.C.A. § 151 et seq. Affirmatively, the order requires Norma and Alfredton, jointly and severally, to make Roy Artrip whole for any loss of pay suffered as a result of the discrimination against him; requires Norma and Ward, jointly and severally, to make whole the twelve employees laid off by the closing of the Ward mine, for any loss of pay suffered by them because of the discrimination; requires Norma to offer to lease to Claude E. Mabe the mining property which he formerly operated on the same terms and conditions as prevailed when the lease covering this property was discriminatorily cancelled on June 30, 1951, and to make whole the employees terminated as a result of the cancellation; and directs that the three respondents post appropriate notices.

We first consider the Board's finding that Norma and its lessees, Alfredton, Ward and Mabe, were joint employers of the employees involved in this proceeding and that Norma was responsible under the Act for the activities hereinafter set out, affecting the employees of Alfredton, Ward and Mabe. The Trial Examiner, who saw and heard the witnesses, ruled that Norma and its lessees, Alfredton, Ward and Mabe, were bona fide independent contractors and not co-employers.

A careful study of the record convinces us that the Trial Examiner here was clearly right and that the finding of the Board was not sustained by substantial evidence in the record considered as a whole. We must, accordingly, absolve Norma from responsibility under the Act for those activities affecting the employees of its lessees, and we must decline to enforce those portions of the Board's order imposing sanctions upon Norma.

The Board's finding that Norma was a co-employer of the employees in the leased mines seems to have been based on two factors: (1) the so-called economic relationships between Norma and its lessees, which the Board believed made the parties a single integrated coal business; and (2) the control Norma had a right to exercise, and allegedly did exercise, over the miners in the leased mines by virtue of certain provisions in the licensing agreements. These agreements were in fact and law leases, not makeshift instruments masquerading under a false name.

Norma was a completely separate corporation with eight stockholders, each of whom was a director. Alfredton was a partnership. Ward Brothers was a partnership, and Industrial Constructors was either an individual proprietorship operated by Broom, or a partnership consisting of Broom, Mabe and Jeter, from which Jeter withdrew. In addition to the three mentioned lessees, Norma also had contractual relationships with at least six or seven other entities operating on the same basis. Except for the fact that Mrs. L. McGlothlin (one of the partners in Alfredton) was the wife of Norma's secretary, and G. W. McCall (a Norma stockholder with an one-sixth interest) had some brothers and a son operating M. and W. Coal Company (another of Norma's independent contractors), there was no family connection between Norma and any of the independent contractors.

Norma's principal business was not the mining of coal but the processing and sale of coal delivered to it, primarily by its lessees, with about 17% from producers other than its lessees. The Board stressed certain provisions in these leases which were favorable to Norma. Thus, the price to be paid to the lessees for coal delivered to Norma was dependent upon the price Norma received for the coal. Norma could, upon twenty-four hours' notice, suspend the operations of the lessees if Norma could not sell the coal at a reasonable profit. Norma could terminate the lease upon "violation or breach * * * of any of the convenants." Upon the termination of the lease, all permanent installations (such as tipples, chutes, docks and outbuildings) constructed by the lessee would become the property of Norma. Norma had a limited right to prescribe what seams of coal should be mined by the lessee, and its officials could (and did) inspect the mines to see that its instructions in this respect were carried out.

Now for the other side of the picture. Each lessee assembled its own working force and managed it completely by determining the mode, method and manner of working for each of its employees in the day-to-day mining operations. Each lessee completely controlled the hiring and firing of its employees, together with the rate and method of pay, which varied from time to time and from mine to mine.

Norma had no financial interest in any of its independent contractors, made no loans to any of them, made no payments to any of them other than the contract price for coal purchased, did not advance credit, did not withhold or deduct taxes or assessments of any kind, did not own any of lessees' equipment, and maintained a general separation from their affairs.

There was no joint occupancy of premises or joint use of equipment by Norma and any of the lessees; nor did the employees of Norma work alongside the employees of the lessees. Each leased mine had its own entry.

Such connection as Norma had with the activities of the lessees was entirely consistent with the independent contractor relationship. Only in isolated and non-recurring instances did Norma supply equipment to the lessees, or assist the lessees in securing equipment.

No useful purpose would be served by a discussion and analysis of the cases on this point cited in the briefs. Respondents rely heavily on Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947; United States v. Silk, 331 U.S. 704, 67 S. Ct. 1463, 91 L.Ed. 1757; National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170; National Labor Relations Board v. Bill Daniels, Inc.,...