their respective employes, the basis is provided with all requisite elaboration upon which shall be computed the Railway Company's compensation for the privileges conferred and exercised by the mining company. Careful provision is made for the mining company's contribution to the Railway Company of a fair proportion of the expense "connected with the operation and use of stations and yards, wages of gatemen, towermen, signalmen, switchmen, watchmen, train dispatchers, telegraph operators, station agents and other station and yard employes, and such proportion of superintendency, clerical forces and of general and other expense of maintenance and operation of the Railway Company's entire line of railroad as are properly chargeable to the said transportation lines".

And said contract further provided and provides that the mining company's operation over the Railway Company's lines shall be "in subordination to and subject to the duties and obligations of the Railway Company as a common carrier, and such use and enjoyments of the Railway Company in serving the public and in performing its common carrier duties and obligations", and that "the movement of ore trains and use and enjoyment of such trackage rights and privileges, as hereinbefore granted, shall, in order to prevent any curtailment, impairment or interference with the common carrier duties and obligations of the Railway Company, be subject to the general supervision and direction of the Railway Company, and all ore trains and car movements over the lines of the Railway Company shall be dispatched and carried out under the direction of the Railway Company".

And it was and is further provided that, "Any engine, train or car operated by either of the parties hereto shall be deemed within the meaning hereof to be the engine, trains, or cars of such party, whether owned by it or not".

A copy of said trackage license agreement is hereto appended, identified as Exhibit A, and hereby made a part of this Statement of Facts.

(8) Said trackage license agreement of May 28, 1920, has supplied, and still supplies, the right and privilege by which the mining company has transported, and now transports, its ores from mine to mills over the Railway Company's tracks, and said haulage is, and at all times from and after September 1, 1920, has been, a strictly private industrial interplant haul by mining company in the course of said mining operation, and said trackage license agreement supplies, and at all said times has supplied, the sole basis upon which said haulage has been carried on by the mining company as to compensation paid by the mining company to the Railway Company, the contribution by the mining company to the Railway Company of an equitable proportion of the expense incident to the latter's supervision of the operation of both companies upon the Railway Company's tracks, the definition of liability to result from the negligence or default of the respective employes of the two companies, and in all other respects with painstaking detail and particularity just how and with what limitations the mining company_has exercised and may continue to exercise the privileges upon the Railway Company's tracks covered by that agreement and the license granted thereby.

(9) The New Jersey corporation and each of its successors in interest, including Utah Copper Company, the Delaware corporation, and Kennecott Copper Corporation, made and entered into an agreement in writing with said employes engaged in said interplant ore haul under and pursuant to the provisions of said trackage license agreement, including the claimants herein, wherein said employes, including said claimants, at the time of their hiring, and as a condition of their employment, signed a statement of their understanding that when engaged in said ore haul they occupied the status of mining company's employes only. The mining company does now pay, and at all said times has paid, by mining company's check, directly to each said employes engaged in said interplant industrial ore haul, including the claimants herein, the wages earned by said employes, and said wages so paid by the mining company are being, and have been at all times, accepted as such by those so employed. Prior to September 1, 1920, the effective date

of said trackage license agreement, all ore moved under revenue billing at the Railway Company's published tariff rates and the revenue from that business was accounted for by the Railway Company under Interstate Commerce Commission regulations. After said trackage license agreement, said ore did not move under revenue billings, and with the approval of the Interstate Commerce Commission was not accounted for to the Interstate Commerce Commission authorities; the expense incident thereto became and was an item in the mining company's mining and milling costs simply and a factor in the mining company's operation.

All ore hauled in said interplant operation has been hauled at all times in and by the equipment owned by the mining company, upon which is conspicuously stenciled the name of Utah Copper Company. That equipment is not standard and cannot be used in common carrier service for the reason it would not be accepted in interchange by other railroads. It is especially constructed to meet the mining company's peculiar requirements and is used for that purpose only, and wholly different types of equipment are used by the Railway Company in the course of the latter's operation.

The control of the ore haulage is now and has been at all times in the mining company and it has never been relinquished. Men are employed therein only by the mining company, and increase and reduction in force is now, and always has been, made pursuant to the requirements and direction of the mining company. The place and manner of delivery is that of mining company's selection. The mining company submits reports and makes payment for account of these ore transportation workers to the Federal Social Security Board and to the Industrial Commission of Utah, which administers the State Unemployment Insurance, and the mining company, as to said ore transportation employes, complies with all provisions of the Federal Fair Labor Standards Act of 1938, all of which Acts are applicable to the mining company's industrial employes, but none of them are applicable to railroad employes, excepting only as to the minimum wage provisions of the Federal Fair Labor Standards Act of 1938. Said ore haulage is, and at all times from and after September 1, 1920 has been, the purely private industrial operation of a mining company, interplant and intraplant, devoid of any common carrier or public utility aspect. In the spring of 1934 the Code of Fair Competion under the NIRA covering the copper industry became effective and until the expiration of that Code all persons engaged in the ore haulage were reported to and accepted by the Code authorities as employes of the mining company solely.

(10) Said ore haulage was and is of the mining company, not of the Railway Company, and the workers therein engaged, including the claimants herein, were and are employes of the mining company and not of the Railway Company. The facilities employed in the ore haulage were and are those of the mining company, not of the Railway Company. The persons employed were, and are, engaged in the work of the mining company, not the work of the Railway Company, they were, and are, engaged in the discharge of duties imposed by the mining company to facilitate the mining operation, not by the Railway Company to facilitate the railway operation. Not only have those persons so engaged been paid always by the mining company, never by the Railway Company, but their service always has been exacted of them and has been accepted by the mining company, not by the Railway Company, and over their conduct. their hiring and discharge, the ultimate control always has reposed in the mining company, not in the Railway Company. The relationship of employer and employe here involved by every accepted definition is that wherein the mining company only is the employer and all persons engaged in the stated operations, including these claimants, are mining company's employes solely.

(11) By the trackage license agreement dated May 28, 1920. effective September 1, 1920, the operation of the mining companies has been preserved, entirely divorced from the carrier or any other function of the Railway Company. It is the mining operation only that is in issue here. The mining companies always have exercised the necessary and usual supervision in the course of said, their own interplant and intraplant industrial

ore haulage, and over the period from September 1, 1920, to the present time said ore haulage has been and is conducted by the mining companies solely and by means of the mining companies' facilities and employes only.

Mining companies have not operated any equipment or facility or performed any service in connection with the transportation of passengers or property by railroad, or the receipt, delivery, elevation, transfer-in-transit, refrigeration or icing, storage or handling of property transported by railroad within the meaning of the Railway Labor Act; that there is no phase of mining companies' operation that is reasonably directly related, functionally or economically, to the performance of common carrier obligations; that mining companies' operation is wholly separate and distinct from any common carrier operation; that no product is transported other than that owned by the mining companies and therein the transportation of said product is, and has been, but an inter and intraplant transportation conducted by the mining companies in the course of their mining operation and said haulage is not connected with transportation by a carrier. The transportation of mining companies' ore and the switching incidental thereto is wholly inter and intraplant in the unbroken course of the mining and reduction of mining companies' ores conducted by mining companies under a trackage license, the express provision whereof is, and has been. that such haulage should be in and by mining companies' equipment, with mining companies' motive power and with mining companies' crews; that throughout said period from and after September 1, 1920, to the present time, said haulage has been, and is, in mining companies' and not Railway Company's service, and it has been so held by both the Interstate Commerce Commission and the Public Utilities Commission of Utah.

Said trackage license agreement is, and always has been, recognized as lawful and has been determined so to be by the Public Utilities Commission of Utah in its Case No. 466, entitled, "In the Matter of the Investigation of Certain Contracts and Agreements between the Bingham and Garfield Railway Company and Utah Copper Company", decided January 26, 1923, and by the Interstate Commerce Commission in its Case No. 13078, entitled, "In Re Trackage Agreements between the Bingham and Garfield Railway Company and the Utah Copper Company", decided October 3. 1922, 73 I.C.C. Rep. 768, and by said decisions the validity and lawful character of said trackage license agreement is now adjudged for the purposes of the investigation before this Board.

(12) The actual mechanics of employment and discharge of mining company's employes engaged in mining company's ore delivery are follows:

as

At the time of their selection each man is, and has been, advised that he may be assigned to work in either Railway or mining company service, but when engaged in the mining company's service he will be the mining company's employe solely, and be compensated for that service by the mining company only; and likewise, that when engaged in the Railway Company's service he will be the Railway Company's employe solely and will be compensated for that service by the Railway Company only To this the applicant agrees by signing the following statement of his understanding:

"I understand that while I am engaged in Utah Copper oredelivery-department service that I am an employe of the Utah Copper Company, ore-delivery-department, and that while I am engaged in the Bingham and Garfield Railway Service, I am an employe of the Bingham and Garfield Railway Company, and will be paid for my services in each service by each respective company". Provision then is made for the signature of the employe and the statement of his occupation. (Exhibit B). That practice has been in effect since the organization of the mining company's ore delivery department, being the effective date of the trackage license agreement of May 28, 1920. i.e.. September 1, 1920. All of the claimants here involved have signed that statement.

The two employments are so clearly distinct as to forbid the possibility of confusion at any time. Moreover, these employes have been long in service. For the mining company's employment the individual is paid by the mining company's check and for the Railway Company's employment the individual is paid by the Railway Company's check, and such has been the practice consistently from the effective date of the trackage agreement of May 28, 1920. Utah Copper Company trainmen and enginemen turn in thr time slips on the blanks furnished by the Utah Copper Company by which company they have been employed. The conductor records the time employed in Utah Copper Company service. The timekeepers of the Railway Company do not allocate the time between the two companies-the men themselves do this on their daily delay reports.

The time and deductions of the mining company's employes engaged in mining company's ore delivery are assembled by the Railway Company's office force, and the Railway Company then furnishes mining company's accounting department at mining company's mills a list of the names of mining company's employes and those names are then transcribed by the mining company upon the mining company's payroll forms by means of addressograph plates. The payroll forms are then sent to the Railway Company where the Railway Company's timekeepers indicate thereon the total hours worked by each of mining company's employes, the gross amount of his earnings, his deductions in detail, and the balance due. Mining company's payroll so compiled is then transmitted by the Railway Company to mining company's accounting department at mining company's mills where the paychecks are drawn from the records so furnished, are then signed on mining company's behalf by one of its officials and are thereupon returned to the Railway Company for delivery to the mining company's employes entitled thereto.

(13) It is provided by the trackage agreement of May 28, 1920, that "all engine and train crews operating the engines, cars and trains of the Copper Company (mining company) shall be the sole employes of the Copper Company and compensated for work and labor by it alone". That is an agreement between the mining company and the Railway Company. The contract of employment expressly provides that the employe may be employed part time in each the mining company's work and that of the Railway Company, and that the employe shall "be paid for his services in each respective company". (Exhibit B). The latter is a contract between the mining company and its employes. An this contract of employment between the mining company and its employes consists, and always has consisted, of the signed application addressed to "Utah Copper Company-Ore Delivery Department", (Exhibit C), and the signed statement, of which Exhibit B is a copy.

(14) The men engaged in mining company's ore delivery to man and operate mining company's trains and equipment in transporting mining company's ores over the tracks of the Railway Company between mining company's mine and mills under and pursuant to the trackage license agreement effective September 1, 1920, carry on an operation that pertains to and is of the mining company solely and exclusively, one that pertains to no function of the Railway Company and is not an operation of the Railway Company at all, no more such than would have been the fact had the Railway Company never been organized. This transportation interplant from mining company's mine to its mills of its ores in the course of a continuous mining operation, has not the remotest connection with any common carrier service or any railroad operation within the provisions of the Railway Labor Act.

(15) Mining Company could designate certain of mining company officials to select, hire and discharge all mining company's employes engaged in its ore delivery and deprive any Railway Company official or agent of such authority, and the mining company could authorize its officials to perform certain other supervisory functions now performed by the Railway Company's men for and on behalf of the mining company. By way of illustration, the mining company could employ a road foreman of engines or

a traveling engineer to ride the mining company's locomotives engaged in the mining company's ore haul from mine to mills, to observe the manner in which the enginemen engaged in that work perform their duties, to appraise their efficiency and to recommend them to the mining company's master mechanic for promotion, discipline or discharge by such master mechanic. The mining company's operation has attained such proportions due to the necessities of National defense that the employment of such road foreman of engines has become advisable; the mining company has actually made such an appointment and such road foreman of engines is engaged in the discharge of the duties of that position, reporting always to the mining company's master mechanic, in whom is the power to discipline and discharge these enginemen employed by the mining company in its ore haul from mine to mills pursuant to the trackage license effective September 1, 1920.

The two operations, namely, that of the mining company's ore delivery and that of the Railway Company, could be separated in all detail of operation, definitely divorced, but it is not thought that, by so doing, men employed in the ore delivery of the mining company could be the more clearly mining company's employes. The method employed in the handling of mining company's employes engaged in mining company's ore delivery has been that naturally resulting from the nature of the operation under the circumstances and conditions that pertain to it. Obviously that arrangement has been for the best interests of the men, for it has assured them a greater number of hours of employment. The operations of the two companies are such that unless transfers from one to the other were permitted as dictated by the operations, respectively, the men would find themselves subjected to frequent layoffs, which have been avoided by the co-ordination of the two operations as stated.

(16) "Ore Delivery" is the work of the mining company, not that of the Railway Company, and for more than 18 years it has been so held by both Interstate Commerce Commission and Public Utilities Commission of Utah, and the latter's successor. The Recapture Clause of the Interstate Commerce Act, Section 15(a), went into effect September 1, 1920. On May 28, 1920, to become effective September 1, 1920, the main line trackage agreement was entered into, the purpose of which was frankly stated to be that of so curtailing Railway Company's operations that there would result no railway earnings that would be subject to recapture. The Interstate Commerce Commission and the Public Utilities Commission of Utah instituted proceedings of inquiry and investigation into the trackage license agreement and the propriety thereof, and those proceedings resulted in the approval of that agreement, a result accomplished by recognition of the fact that the railroad was a plant facility of the mining company, in the utilization of which as such plant facility the trackage license was valid and proper and the mining company's operations thereunder free from objection.

73 I.C.C. Reports, 768,

Trackage Arrangements between the Bingham & Garfield Ry. Co. and the Utah Copper Co., I.C.C. Docket No. 13078,

Statement of Fact by Assistant Counsel J. C. Fort, I.C.C. Docket
No. 13078;

138 I.C.C. Reports, 40-44,

Guaranty Settlement with Nevada Northern Railway Company,
I.C.C. Finance Docket No. 681;

138 I.C.C. Reports, 45-50,

Guaranty Status of Bingham & Garfield Railway, I.C.C. Finance
Docket No. 313;