Clayton B. Metcalf and C.B. Construction Co., Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1976

223 N.L.R.B. 642 (N.L.R.B. 1976)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clayton B. Metcalf and C.B. Construction Co., Inc.
and United Mine Workers of America , Petitioner.
Case 28-RC-2901
April 5, 1976
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
At issue in this proceeding is the eligiblity of cer-
tain striking employees of Sundance Coal Co. (here-
inafter Sundance), a former owner of certain mining
rights and one of the operators of the mine involved
herein. The Petitioner sought to represent a unit
comprised of all production and maintenance em-
ployees, including truckdrivers, employed by Sun-
dance and the Clayton B. Metcalf Construction Co.,
Inc., (hereinafter Metcalf), the latter being a contrac-
tor formerly engaged by Sundance to perform certain
operations at the mine.
On November 14, 1975, the Regional Director for
Region 28 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding' in which he
found, contrary to the Petitioner's contention, that
Metcalf and Sundance were, at the time of an eco-
nomic stike at the Sundance Mine,' separate and dis-
tinct employers. Accordingly, he found the strikers of
Metcalf to be eligible, and the strikers of Sundance
to be ineligible, to vote in the election.' Thereafter, in
accordance with Section 102.67 of the National La-
bor Relations Board Rules and Regulations, the Peti-
tioner filed a timely request for review of the Region-
al Director's decision on the grounds, inter alia, that
in finding the strikers of Sundance to be ineligible to
vote in the election he departed from officially re-
ported Board precedent. The Employer filed an op-
position to the request for review.
In support of its position that the striking employ-
ees of Sundance are eligible to vote in the election,
t International Union of Operating Engineers, Local No. 953, AFL-CIO.
was permitted to intervene in these proceedings ; Amcoal, Inc., which pur-
chased Sundance's mining rights was permitted to intervene as a party in
interest.
2 On December 5, 1974, the Mine Workers commenced an economic
strike against Sundance and Metcalf involving employees of both compa-
nies.
7 The Regional Director found the following unit to be appropriate for
the purpose of collective bargaining:
All production and maintenance employees employed by the Employer
in connection with its mining operations at and in the vicinity of the
Amcoal Mine, formerly known as the Sundance Mine , southeast of
Gallup, New Mexico, including such employees involved in the hauling
of coal to the rail site, the loading of coal at the rail site . the mainte-
nance of roads leading to and from the mine and the reclamation of the
mine ; excluding all office clerical employees, professional employees.
guards and supervisors as defined in the Act.
Petitioner urged, inter alia, (1) that Metcalf is a suc-
cessor employer to Sundance, and (2) that Sundance
and Metcalf were joint employers of the employees
employed at the mine . The Petitioner also contended
that the Hearing Officer erroneously excluded cer-
tain relevant testimony regarding an agreement be-
tween Amcoal, Inc., and the Navajo Nation requir-
ing Amcoal to locate and give preference in hiring to
former Navajo employees of Sundance.
On December 4, 1975, the Board, by telegraphic
order, granted the request for review and directed
that the election proceed as scheduled ° except it or-
dered that all strikers, including the Sundance strik-
ers, should be permitted to vote subject to challenge
and that all ballots cast in the election be impounded
pending the Board's disposition of the case.'
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, includ-
ing the briefs filed by the Employer and the Peti-
tioner,6 and makes the following findings:
Sundance owned the mining rights to the Sun-
dance Mine, involved herein, which is located near
Gallup, New Mexico, from September 1973 until Oc-
tober 1, 1975. In August 1974, Sundance and Metcalf
entered into an oral agreement whereby Metcalf was
to remove the overburden from the coal deposit at
the mine site .' Under the terms of the agreement,
Metcalf was to be compensated by Sundance on the
basis of an hourly rate for equipment rental, which
included the cost of renting the machinery plus the
personnel necessary to operate it. In addition, Sun-
dance rented fully operated and maintained equip-
ment from Metcalf for purposes other than the re-
moval of overburden. The actual mining, crushing,
and processing of the coal was performed by Sun-
dance personnel and equipment.
On December 5, 1974, the Mine Workers made a
request of Sundance and Metcalf, as coemployers,
for recognition as collective-bargaining agent for the
employees employed at the mine site . On that same
The election herein was conducted on December 5, 1975.
5 The Board also ordered that upon completion of the election the Re-
gional Director shall reopen the hearing for the purpose of taking evidence
with respect to the present makeup of the bargaining unit; the agreement
between the Navajo Nation and Amcoal, Inc.; the effect , if any, of that
agreement on the composition of the bargaining unit and the resumption of
operations : the successorship issue; and the effect of the above on the eligi-
bility of the challenged voters. The reopened hearing was conducted on
December 11, 12, and 15, 1975.
6 A brief was also filed by Amcoal, Inc., which was duly considered by
the Board.
7The strip mining operation herein involves several different steps: (I)
overburden is removed to expose the coal veins , (2) coal is extracted, (3)
coal is transported to a site for crushing , (4) processed coal is transported to
railheads and loaded for shipping , (5) stripped land is reclaimed.
223 NLRB No. 113
CLAYTON B. METCALF 643
date, its request being refused, the Mine Workers
commenced an economic strike against Sundance
and Metcalf.8 On December 6, 1974, the instant peti-
tion was filed naming Metcalf and Sundance as
coemployers. At the time of the filing of the petition
herein, Metcalf employed approximately 17 to 19
employees and Sundance employed approximately
15 to 17 employees. As a result of the strike, Sun-
dance closed all operations at the mine on December
25, 1974.
Thereafter, in February 1975, Sundance com-
menced negotiations with Amcoal, Inc., for the sale
of the mine, which was consummated on October 1,
1975.9 After its purchase of the mine , Amcoal sub-
contracted the entire operation of the mine, includ-
ing the removal of the overburden and the actual
mining of the coal, to Metcalf.10 No employees of
Sundance. or Metcalf have been engaged in mining
operations at the mine site since Sundance closed the
mine. The strike has continued to date. Although
Metcalf is presently under contract with Amcoal to
operate the mine, it has not yet commenced such op-
erations but has been limited to preparing machinery
away from the site, to be later used at the mine.
Following the initial hearing on the petition, the
Regional Director found that when the mine was in
operation, Sundance and Metcalf were separate and
distinct employers rather than joint employers as
urged by the Petitioner. He therefore concluded that
the continuing striking Metcalf employees were eligi-
ble to vote in the election but that the former Sun-
dance employees who were striking were not eligible.
Our review of the entire record in this matter, includ-
ing the lengthy record on remand of the case, leads
us to the conclusion that the two companies were
jointly engaged in the operations of the mine up to
the date of the strike and were joint employers of the
employees employed at the mine. Consequently, for
the reasons expressed herein, we find that the striking
Sundance employees were eligible to vote in the elec-
tion and that their impounded ballots should be
opened and counted.
Thus, the record discloses that while Metcalf and
Sundance were engaged in their respective opera-
tions at the mine Sundance's mine manager, Robert
Holmberg, had the day-to-day responsibility for the
overall operations of the mine. Reporting to Holm-
8 It appears from the record that approximately 2 of the Metcalf employ-
ees and approximately 15 of the Sundance employees went out on strike.
9 Amcoal had no employees engaged in work at the mine site and has no
plans to engage in mining operations there.
10 The record discloses that on October 1, 1975, Sundance sold to Am-
coal, Inc., all of its surface mineral rights , rail trackage leases, some stating
mining leases, and approximately one-half of the equipment at the mine.
Sundance has no financial interest in Amcoal and there are no common
corporate officers or common stock ownership between the two companies.
berg was his foreman, Charles Scrivner, as well as
Clayton Metcalf. Reporting to Clayton Metcalf was
his foreman, Wayne Smouse." At the time of the
strike, Sundance employed employees classified as
truckdrivers, machine operators, and laborers. Met-
calf employed truckdrivers, machine operators, and
mechanics. Although Holmberg did not exercise di-
rect supervisory authority over Metcalf's employees,
as mine manager he had managerial authority over
the contractors working at the mine site, including
Metcalf.12 Holmberg determined which areas Metcalf
was to strip and how much stripping was to occur in
accordance with the mining plan for the Sundance
Mine." Holmberg also directed Metcalf to move his
equipment and employees where they were needed to
perform work other than the removal of overburden
from the coal deposit.
Regarding his relationship with.Holmberg, Clay-
ton Metcalf testified that he was available to perform
"anything that they [Sundance] wanted." In fact, he
testified that approximately 30 percent of his duties
at the mine involved tasks other than the removal of
overburden. The record shows that three of Metcalf's
trucks, comprising a substantial portion of the num-
ber of trucks being used at the mine, were consistent-
ly used to haul coal from the mine to the railheads,
and one of Metcalf's trucks was occasionally used to
haul coal from the pit to the crusher. In addition,
Metcalf's equipment was also used to load coal onto
railroad cars; Metcalf maintained a water truck driv-
er on a regular basis to keep the roads free from dust;
and Metcalf retained one employee to keep the roads
in the pit smooth to facilitate the access of trucks.'"
In addition to the regular utilization of Metcalf's
employees and equipment by Sundance for purposes
other than the removal of overburden, the record
contains further evidence highlighting the degree of
interdependence between the two companies in ac-
complishing the total mining operations. Thus, on
11 The record reflects that Clayton Metcalf or his supervisor , Smouse,
generally exercised immediate supervision over Metcalf employees, while
Holmberg and his foreman supervised Sundance 's employees . However, the
record also shows that the crusher screen and conveyor belt were leased by
Metcalf from the distributor, and operated by Sundance employees . Metcalf
also leased other equipment to Sundance , and assigned some of his equip-
ment and men to Scrivner unless he himself needed it. Metcalf testified that
"Whenever I had stuff rented to them I didn't pay any attention to it, they
supervised the people."
Thus, we cannot agree with our dissenting colleague's conclusion that
Holmberg "did not exercise any supervisory authority over Metcalf's em-
plo,lees."
In addition to Metcalf, other contractors occasionally hauled coal for
Sundance.
13 Sundance's vice president testified that the mining plan regarding strip-
ping and the extraction of coal was based on the need to mine a minimum
of 100,000 tons of coal per year to keep leases with the Santa Fe railroad
valid.
14 The record discloses that Sundance was charged on an hourly basis
whenever Metcalf's equipment and personnel were used for any function
other than the removal of the overburden.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various occasions, presumably on an "as needed" ba-
sis, Metcalf's mechanic performed repairs on
Sundance's equipment, and on at least two occasions
Metcalf's loader was observed removing coal from
the pit. Metcalf also had a loader stationed at the
crusher taking coal and putting it into a feeder. Sun-
dance Foreman Scrivner testified that Sundance uti-
lized Metcalf's employees to assist them in accom-
plishing certain tasks. For example, Metcalf's
employees were utilized when needed to stir up the
coal to enable Sundance's front-end loader to oper-
ate and they would assist Sundance in various other
ways.'5 It appears from the record that at such times
Sundance's supervisors were involved in directing
Metcalf's employees. There is also testimony indicat-
ing that at various times Sundance's employees oper-
ated Metcalf's equipment and Metcalf's employees
operated equipment owned by Sundance.
In view of the foregoing, and considering the reali-
ties of the coal mining industry, it appears clear that
Sundance and Metcalf were jointly involved in the
mining operations at the mine site. The record shows
that in performing the work at the mine site there
was a necessary integration and interdependence of
operations for mining of the coal. Thus, as indicated,
Sundance's mine manager had the day-to-day re-
sponsibility for the overall operation of the mine and
all mining operations were performed in accordance
with Sundance's mining plan. Metcalf's entire opera-
tion in removing the overburden, as well as other
collateral duties performed by it, depended entirely
on Sundance's decisions regarding the site for strip-
ping and the amount of stripping which was to occur.
As a result, Sundance exercised considerable control
over the manner and means by which Metcalf per-
formed its operations. It is also clear that employees
of Metcalf and Sundance worked closely together in
various aspects of the strip mining operation. Em-
ployees of both companies had similar job classifica-
tions, performed many of the same functions, and
worked in close proximity to one another. Moreover,
when necessary, Metcalf's employees assisted Sun-
dance in the performance of tasks relating to the
mining of the coal and shared a community of inter-
est with them. It is, in a sense, consistent with the
integration previously existing that when Amcoal
purchased the mine it proceeded to turn over the en-
tire operation, including that portion formerly per-
formed by Sundance, to Metcalf.
In these circumstances and particularly recogniz-
ing the nature of mining operations, we find that any
15 Scrivner also testified as follows: "Well , we loaded the coal with our
loaders from the mine and then brought it to the crusher . Sometimes Mr.
Metcalfs men helped us with that and helped us with the loading. We
worked closely together all the time as far as I could tell."
meaningful collective bargaining for the employees
at the mine would have required the participation of
both Sundance and Metcalf and we conclude that
Sundance and Metcalf were in fact joint employers
for the purpose of operating the mine.16
Inasmuch as the Sundance employees as well as
the Metcalf employees struck at a time when the
joint employer relationship existed and they contin-
ued to be on strike as of the date of the election,
which was less than 1 year from the commencement
of the economic strike, all of these strikers were
therefore eligible to vote.
Accordingly, we shall remand the case to the Re-
gional Director in order that he may open and count
the ballots " impounded by our order dated Decem-
ber 4, 1975, including the challenged ballots cast by
the strikers of Sundance and Metcalf, pursuant to
our Decision on Review, and take such further action
as he deems necessary in accordance with the
Board's Rules and Regulations.
MEMBER JENKINS, dissenting:
I would affirm the decision of the Regional Direc-
tor finding Sundance and Metcalf to be separate and
distinct employers. Therefore, like the Regional Di-
rector, I would find the economic strikers of Sun-
dance ineligible to vote in the election directed
among employees of Metcalf. The majority predi-
cates its finding that Sundance and Metcalf were
joint employers basically on the fact that they both
participated in the operations of the mine and that
Metcalf's operation in removing the overburden de-
pended on Sundance's decisions. However, the mere
fact that a contractor at a jobsite (as distinguished
from its employees) receives instructions from a gen-
eral contractor does not establish a joint employer
relationship. In fact, the record as a whole over-
whelmingly establishes that Sundance and Metcalf
were separate employers.
During the relevant time , Sundance owned the
mining rights to the Sundance Mine, performed cer-
tain mining operations, and subcontracted other op-
erations to Metcalf and others. The record supports
the Regional Director's finding that Metcalf and
Sundance operated independently as separate auton-
omous enterprises under separate management direc-
tion and control. While it is true that Sundance's
mine manager, Holmberg, was responsible for the
overall operations of the mine and had authority
16 Jewell Smokeless Coal Corporation and Subsidiaries , 170 NLRB 392
( 1968): cf . Norma Mining Corporation , et al., 101 NLRB 944 (1952), enfg.
206 F.2d 38 (C.A. 4, 1953). In view of our finding that Metcalf and Sun-
dance were joint employers of the employees employed at the Sundance
Mine, we find it unnecessary to reach the question of whether Metcalf is a
successor employer to Sundance.
17 In the event the ballots of any of these strikers were also challenged for
other reasons, the Regional Director shall resolve those issues in accordance
with normal Board procedures.
CLAYTON B. METCALF 645
over all the contractors working at the mine site, in-
cluding Metcalf , he did not exercise any supervisory
authority over Metcalf's employees , who received
their instructions from Metcalf 's own supervisors.
Whenever Metcalf equipment and personnel were
used by Sundance for any function other than the
removal of the overburden , Sundance was charged
on an hourly basis . The record establishes that Met-
calf had no financial interest in Sundance.
Of great importance is the clear fact that Sundance
and Metcalf had separate and independent labor re-
lations policies and practices. Furthermore , there was
no transfer of employees between companies and
separate payroll records were maintained.
Based on the above considerations , I conclude that
the Regional Director was correct in determining
that the striking Sundance employees are ineligible to
vote in the election directed among the Metcalf em-
ployees.