National Labor Relations Board v. Blount

• Decision Date: 27 November 1942
• Docket Number: No. 12284.,12284.
• Citation: 131 F.2d 585
• Parties: NATIONAL LABOR RELATIONS BOARD v. BLOUNT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

131 F.2d 585 (1942)

NATIONAL LABOR RELATIONS BOARD v. BLOUNT et al.

No. 12284.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1942.

Rehearing Denied November 27, 1942.

Samuel Richeson, of Potosi, Mo., and Harry O. Smith, of St. Louis, Mo. (Louis H. Breuer, of Rolla, Mo., on the brief), for respondents.

Frank J. Donner, Senior Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Gerhard P. Van Arkel, Asst. Gen. Counsel, and Bonnell Phillips, Atty., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

WOODROUGH, Circuit Judge.

This case comes before the court on petition by the National Labor Relations Board for enforcement of an order issued against respondents pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq. The findings of fact, conclusions of law and order of the Board are reported, 37 N.L. R.B. 662, the gist of them being that:

Respondents own, as tenants in common, and operate, a tract of approximately 640 acres of land known as the Paw Paw Patch, in the vicinity of Richwoods, Washington County, Missouri. The land is managed for respondents by R. A. Blount, himself a respondent, who engages miners and haulers to extract a mineral substance known as barite or tiff from the land and to transport it to points of sale. The production of tiff from respondents' land in 1939 and 1940 approximated 3,800 tons in volume and $24,000 in value for each year. Substantially all of the tiff so produced was sold to purchasers who shipped it to points outside the State of Missouri.

The Board found that the miners who extract tiff from respondents' land, and the haulers who transport it in trucks to various selling points, are employed by, and are the employees of, respondents within the meaning of Section 2(2) and (3) of the Act, and that respondents, through their agent in the operation of their property, R. A. Blount, refused to bargain collectively with International Union of Mine, Mill and Smelter Workers, Local 113, as the exclusive representative of their employees in the appropriate bargaining unit, thereby violating Section 8(1) and (5) of the Act.

Upon the above findings, the Board ordered respondents to cease and desist from their unfair labor practices, to bargain collectively, upon request, with International Union of Mine, Mill and Smelter Workers, Local 113, and to post appropriate notices.

Study of the whole record has convinced the court that the evidentiary findings of the Board include the material incidents proven and are supported by substantial evidence, and the controlling question properly presented for our determination on this petition is whether the facts found by the Board support its conclusion that the miners who mine tiff on respondents' land and those who haul it in their own trucks are employees of the respondents within the intendment of the Act.¹

The respondents contend as to the miners that the legal nature of the relationship between the respondents and the miners is fixed by a Missouri statute enacted in 1877, found in Revised Statutes of Missouri 1929, Sections 13594-13597, Mo.R.S. A. §§ 14784-14787. The statute requires the owner of real estate who permits persons other than his servants, agents or employees to enter upon his land and dig ore therefrom, to keep a printed statement of the terms, conditions and requirements upon which such may be done posted conspicuously and made available to the miner, and in case the owner does not comply with the statutory requirement as to such notification, then the person who has been permitted to and does dig or open a mine on the land shall have the right to continue to work the shaft, mine, prospect or deposit of mineral so dug or opened by him for the term of three years from the date the permit was given him, subject to conditions provided in the statute. One of the conditions is that if the miner shall fail to work or cause to be worked such shaft, mine, quarry, prospect or deposit of mineral for ten days in any month, he shall forfeit all right to work unless the failure was caused by unavoidable circumstances or caused or consented to by the owner. Another condition is that the miner shall pay the owner the agreed royalty for mining, and if no royalty is agreed upon, then the royalty shall be the same as is paid by other miners on the land, or if there are no others then the same as is paid by miners on lands nearest thereto. The miner having paid or tendered the royalty on ore dug by him may call upon the land owner to receive and pay for such ore at a price not exceeding the amount named in the notice required to be posted and if the owner refuses within five days the miner may dispose of the ore to some other person. The final section provides that all ore or mineral dug on the lands of any person in the state is the absolute property of the owner or lessee of such lands.

The respondents never complied with the statute requiring the posting of notice of the terms, conditions and requirements of mining on their property, and they contend that the statute therefore operated to establish and define a contract between them and the persons whom they permitted to mine on their land in such terms that the miners were independent contractors and not employees.

As to the haulers, respondents contend that they are employees of the miners and not of the landowners.

The Board observed in respect to the miners that the statutes relied on "specifically state that they apply only to miners other than the landowner's `servants, agents or employees' and thus furnish no assistance in determining whether any particular miner is or is not an employee." The Board also considered and commented on the decision of the Missouri courts in Woodruff v. Superior Mineral Co., 230 Mo. App. 616, 70 S.W.2d 1104; State ex rel. Superior Mineral Co. v. Hostetter, 337 Mo. 718, 85 S.W.2d 743, and concluded from the statute and the decisions that the Missouri legislature had indicated that it considered persons such as tiff miners to be employees within the policy of the state compensation act without regard to their common law status. The Board also declared that "in determining whether the tiff miners and haulers are employees of the respondents within the meaning of Section 2(2) and (3) of the Act, we seek to apply the policy and provisions of the Act, and in such inquiry to take into consideration but not to be rigidly bound by common-law or local statutory conceptions."

We are not persuaded that the Missouri statute concerning mining relied on by respondents, or any Missouri decisions related to it², contradict the Board's finding that employment relationship exists within the intendment of the federal Act between respondents and the miners who extract their ore. Woodruff v. Superior Mineral Co., 230 Mo.App. 616, 70 S.W.2d 1104, involved an appeal to the St. Louis Court of Appeals from the judgment of the Circuit Court of Washington County which reversed a workmen's compensation award in favor of a miner injured while working on the land of defendant company, a producer of tiff operating under a lease. The Commission found that Woodruff, the plaintiff, was engaged in the hand mining of tiff on the leased premises of the Superior Mineral Co., and that under Section 3308(a), R.S.Mo.1929, Mo.R.S.A. § 3698(a), the mineral company was an employer and hence liable under the Missouri Workmen's Compensation Act to the plaintiff. Section 3308(a), Mo.R.S.A. § 3698(a), provides as follows:

"Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this Act chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business."

The St. Louis Court of Appeals reinstated the award of the Commission in favor of the plaintiff and rejected the contentions of the mineral company that under Sections 13593 et seq., Mo.R.S.A. § 14783 et seq., the relationship between the defendant and the plaintiff as to the occupancy of the land and the right to mine thereon was that of licensor and licensee, and, as to the right, interest, and property in the ore or mineral dug on the land, that the relationship was that of buyer and seller of a commodity and that there was no testimony to support a finding that the plaintiff was an employee of the defendant. The court, pointing out that "the mining of the ore under the facts in the case seems to us to be a service rendered by the miner to the defendant mining company", held that the miner was engaged in the business of defendant company, which was, therefore, an employer within the meaning of the Compensation Act.

In State ex rel. Superior Mineral Co. v. Hostetter, 337 Mo. 718, 85 S.W.2d 743, the company sought review of the holding in the Woodruff case in the Supreme Court of Missouri. The Supreme Court refused to quash the opinion of the court below but in quashing its writ of certiorari it clearly recognized the liability of the company under Section 3308(a) of the Workmen's Compensation Act, Mo.R.S.A. § 3698 (a), determined by the Court of Appeals. The Supreme Court pointed out that the company was not a mere landowner but was engaged in the "usual business" of producing tiff and that the miner's functions were a part of that "usual business" and that hence liability resulted under Section 3308(a), Mo.R.S.A. § 3698(a). Its holding was that the operator of the mining property from which the ore was mined was an employer within the meaning of the Workmen's Compensation Act of Missouri and that those who were permitted to enter upon his land...