NATIONAL LABOR RELATIONS BOARD v. BLOUNT et al., 131 F.2d 585

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 troven and are supported by substantial -J , the controlling question ¿ted for our determination is whether the facts found support its conclusion that p: ,o mine tiff on respondents’ c7> e who haul it in their own m aployees of the respondents Q endment of the Act. O ¡dents contend as to the mineo egal nature of the relationship respondents and the miners ? a Missouri statute enacted in • in Revised Statutes of Mis40 Sections 13594 — 13597, Mo.R.S. >4-14787.

The statute requires of real estate who permits per- • than his servants, agents or to enter upon his land and dig ore thereirom, 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 it, 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 pursuant to

Section 13594, Mo.R.S.A. § 14784, were subject to that Act. Although, as stated, the respondents rely upon the 1877 mining statute and the foregoing decisions in which employer and employee status was held to exist within the meaning of the Missouri compensation act, they insist that their relation to the miners on their land is different from that -of the Superior Mineral Co., defendant in that controversy.

They contend in effect that they have nothing to do with the mining on their land except as they receive their royalty in respect to the ore product and they stress the agreed fact that in the purchasing of the ore from the Paw Paw Patch, the co-owner, respondent R. A. Blount buys and sells tiff on his own account. But we find no merit in the contentions.

Section 13597 of the Missouri ■statute, Mo.R.S.A. § 14787, relied on provides that “All * * * ore * * * mined * * * upon the lands of any person * * * shall be deemed and held to be the absolute property of the owner or lessee of such lands [with certain exceptions not material here]” and any person who in any manner makes away with ■or conceals any such ore so as to deprive the owner thereof of the same is guilty of grand or petty larceny according to the value.

It is apparent that through the labor ■of the miners on their land the respondents are continuously becoming the owners of ■ore produced by such labor, and we think the Board correctly found that the respondents are not merely landowners but that they operate their property for the purpose of obtaining a money income from the mining and sale of the tiff located there. On the other hand, the miners work on the land in the day to day process of earning a living by labor in respondents’ service. There is a continuing relationship in a going enterprise. The fact that some of the respondents do not personally take

part in the operations is immaterial. It is clear that R. A. Blount acts for all respondents and does whatever is necessary to carry on the business and protect his own and his co-tenants’ interests. The miners are compensated in substantially the same way as are many thousands of others who work on a piece work basis throughout the country. On July 15, 1939, R. A.

Blount promulgated and circulated among respondents’ miners and haulers, the following notice: “Effective on and after August 15, 1939, our price on Barytes mined and hauled from property in Richwoods district will be as follows: “Mining, $3.90 per ton (2,000)#. “Hauling, $1.40 per ton (2,000)#. “Please notify all miners you haul for this change. Clean dry ore. “(

s) R. A. Blount, ' “Agent.” The rates in the notice constituted a reduction below existing rates and though the miners and haulers went on strike against the reduction they ultimately accepted the rates. The theory urged by the respondents that there is an open market for the tiff which the miners produce from the Patch and that the miners are free to sell and do sell the tiff on such markets, is not supported by the facts.

On the contrary, there is substantial evidence supporting the finding of the Board that Blount arranges for the disposition of the tiff and gives the directions for the hauling to the selling points where the miners and haulers receive a portion of the selling price, fixed by Blount as pay for their work. They are paid on a piece work basis indistinguishable from vast numbers of piece work employees.

There was some conflict in the testimony before the Board on the question whether Blount or the miners fixed the compensation to the haulers, but the findings that Blount selects and directs them and arranges for the disposition of the tiff they haul and that they receive their portion of the selling price as pay for their work are sustained by substantial evidence, and it is also clear that the proportion of the price which constitutes their pay is fixed by Blount.

Though they use their own trucks, their continuing occupation in the mining operations under Blount’s control and directions lends support to the Board’s conclusion that they are employees within the meaning of the Act. Oliver Iron Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929; Lehigh Valley Coal Co. v. Yensavage, 2 Cir., 218 F. 547, certiorari denied 235 U.S. 705, 35 S.Ct. 282, 59 L.Ed. 434; Bidwell Coal Co. v. Davidson, 187 Iowa 809, 174 N.W. 592, 8 A.L.R. 1058; Combined Metals Reduction Co. v. Industrial Commission, Utah, 116 P.2d 929; National Ttinnel & Mines Co. v.

Industrial Commission, 99 Utah 39, 102 P.2d 508; Pottorff v. Fidelity Coal Min. Co., 86 Kan. 774, 122 P. 120; Lewis v. Detroit Vitrified Brick Co., 164 Mich. 489, 129 N.W. 726; Arizona-Hercules Copper Co. v. Cren-shaw, 21 Ariz. 15, 184 P. 996; Matter of Veta Mines, 36 N.L.R.B. 288; Matter of Phelps Dodge Corp., 34 N.L.R.B. 846. The respondents contend in effect that the term “employee” used in the Act should be deemed a word of art taken from the common law and should be given the same meaning as servant in the common law decisions relating to master and servant.

Many tort and compensation cases are cited, Missouri having contributed its full share to their great volume. It is contended for the Board that its jurisdiction must be measured by the policy and provisions of the Labor Relations Act and already the list of the Board’s decisions in the matter fills two closely printed pages.

In the abstract there can be no doubt that the federal Act establishes a general and uniform jurisdiction over labor relations in the Board which may not be varied or denied by state statutes or decisions, but the question whether persons are or are not employees must always depend upon the particular facts as they are related to the inquiry in which the question is raised.

There was no division in the Missouri courts deciding that a tiff miner was an employee of the lessee of the ore lands within the intendment of the Compensation Act (Woodruff decisions, supra), but if the action had been at common law for damages resulting from failure of a master to perform some duty owed to a servant, doubtless other considerations would have been deemed relevant. We are not persuaded that the facts found by the Board on substantial evidence are insufficient to sustain its ultimate finding that the miners and haulers engaged in respondents’ business of producing and selling tiff.

Respondents have also attacked the finding of the Board that the respondents through their agent R. A. Blount refused to bargain collectively with the labor union but we think there is no merit in the contentions presented. The respondents have consistently taken the position that no employer and employee relationship exists between them and the miners and haulers they engage to perform the labor and hauling required in the production and disposition of tiff, and on that ground they refused and continue to refuse collective bargaining.

The finding of the Board that such refusal is in violation of Section 8(1) and (5) of the Act is supported by substantial evidence. This court therefore orders enforcement of the order of the Board and that the respondents comply with the terms thereof.

Section 2(3) of the Act defines “employee” as follows: “The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act [chapter] explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse.” Woodruff v.

Superior Mineral Company, 230 Mo.App. 616, 70 S.W.2d 1104, certiorari quashed 337 Mo. 718, 85 S.W. 2d 743; Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 130 S.W.2d 538; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W. 2d 717; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S. W.2d 909; Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918; Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Coul v. George B.

Peek Dry Goods Go., 326 Mo. 870, 32 S.W.2d 758; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008; Garcia v. Vix Ice Cream Co., Mo.App., 147 S.W.2d 141; Horn v. Asphalt Products Corporation, Mo.App., 131 S.W.2d 871; Miller v. St. Louis Realty & Securities Co., Mo.App., 103 S.W.2d 510; Bernat v. Star-Chronicle Publishing Co., Mo.App., 84 S.W.2d 429; Meyer v. Adams, Mo.App., 50 S.W.2d 744; Au-buchon v. Security Construction Co., Mo. App., 291 S.W. 187; Revised Statutes of Missouri 1929, Sections 13593-13596, Sections 14783-14786, R.S.Mo.1939, Mo. R.S.A. § 14783-14786.