haul consists of the haulage by Utah Copper Company from its mine at Bingham to its mills at Arthur and Magna, all in Salt Lake County, Utah, a distance of some seventeen miles, of the ore mined by Utah Copper Company in the latter's mine at Bingham. Utah Copper Company performs this haulage in and by means of its own equipment, its own crews, and over the main line tracks of this carrier under and pursuant to a trackage license for that purpose effective September 1, 1920, pursuant to the terms whereof that haulage has been performed by Utah Copper Company and its predecessors in interest ever since September 1, 1920 with the knowledge and approval of the Interstate Commerce Commission at all times. Said agreement between this carrier and its conductors, brakemen, engine foremen and switchmen effective June 1, 1938 has no application to these claimants or other workers engaged in said ore haul. Said workers engaged in said ore haul are not therein employes of a carrier.

(2) Utah Copper Company is, and since November 3, 1936 has been, a corporation duly created and existing under the laws of the State of Delaware and qualified under the laws of the State of Utah to engage in business. At all times since November 6, 1936, Utah Copper Company has been engaged in the operation of a copper mine in Bingham Canyon and a reduction works near Magna, both being in the West Mountain Mining District in Salt Lake County in the State of Utah. Utah Copper Company is a wholly owned operating subsidiary of Kennecott Copper Corporation, which is a corporation organized and existing under the laws of the State of New York, and Kennecott Copper Corporation is, and at all times from and after the 9th day of November, 1936, has been, the owner of said copper mine and reduction works, and said mine and reduction works at all said times from and after the 9th day of November, 1936 have been operated and maintained by Utah Copper Company as the operating or managerial__agent of Kennecott Copper Corporation. Utah Copper Company and Kennecott Copper Corporation are mining corporations, engaged in the conduct of their said mining operation in Salt Lake County in the State of Utah; neither is, or ever has been, a carrier, common or other, and neither is, or has been, engaged in transportation in commerce, either intrastate or interstate; said mining operation is, and always has been, divorced from any common carrier or other public utility service of any kind.

(3) Bingham and Garfield Railway Company is, and since July 8, 1908 has been, a corporation duly created and existing under and by virtue of the laws of the State of Utah; at all said times Bingham and Garfield Railway Company has been, and is now, a common carrier by railroad, with the usual powers and subject to the usual obligations incident to such calling; and is now, and at all said times has been, the owner of a line of railroad, approximately 17 miles in length, extending from said mine to said reduction works of Utah Copper Company and Kennecott Copper Corporation, and to certain nearby connections with the respective lines of railroad of the Denver & Rio Grande Railway Company, the Union Pacific Railroad Company and the Western Pacific Railway Company. Bingham and Garfield Railway Company is not, and never has been, engaged in the conduct of any mining or reduction operation, and it is, and always has been, a stranger to the mining operation carried on by Utah Copper Company and Kennecott Copper Corporation and their predecessor in interest Utah Copper Company, a New Jersey corporation. Since November 10, 1936, all of the outstanding capital stock of Bingham and Garfield Railway Company has been, and is now, owned by Kennecott Copper Corporation.

(4) Utah Copper Company, a New Jersey corporation, and hereinafter referred to as the "New Jersey Corporation", was organized April 30, 1904, and until November 9, 1936, owned and operated said mine and reduction works and owned all the outstanding capital stock of Bingham and Garfield Railway Company.

(5) Bingham and Garfield Railway Company was organized by the New Jersey corporation July 8, 1908, primarily to provide adequate and

expeditious transportation of the ores from said mine in Bingham Canyon to said reduction works near Magna. Bingham and Garfield Railway Company was organized as a common carrier and at all times since its organization has assumed obligations and performed the duties of a common carrier, but the Bingham and Garfield railroad was at all times a plant facility of the New Jersey corporation to and until November 9, 1936, and thereafter was such plant facility of the successor corporations, including Utah Copper Company, the Delaware corporation, and Kennecott Copper Corporation, and said line of railroad was at all times essential to the conduct of the mining operation and the handling interplant of the New Jersey corporation's ore output and that of its successor corporations.

(6) Until September 1, 1920, the New Jersey corporation delivered its ore to the Bingham and Garfield Railway Company for shipment by the latter to said reduction works of the New Jersey corporation near Magna, some 17 miles distant from the mine, and said ores were carried by the Railway Company and delivered to said reduction works under the Railway Company's published tariffs and in the course of the Railway Company's performance of its common carrier duties and obligations. The New Jersey corporation and the Railway Company on May 28, 1920 made and entered into a trackage license agreement and said agreement became effective September 1, 1920. The Interstate Commerce Commission and the Public Utilities Commission of Utah instituted proceedings of inquiry and investigation into said trackage license agreement and the propriety thereof and said proceedings resulted in the approval by both Commissions of said trackage license agreement and in the due recognition of the fact that said railroad was a plant facility of the mining company, in the utilization of which, as such plant facility, said trackage license was valid and proper, and the mining company's operations thereunder were free from objection. Said trackage license agreement is now, and has been at all times since September 1, 1920, in full force and effect and was assigned to and accepted by each of the successors of said New Jersey corporation, and pursuant to the provisions thereof Utah Copper Company and Kennecott Copper Corporation and their predecessors in interest have at all said times hauled their ore from said mine to said reduction works and have returned to the mine the empty cars used in said haulage, and on September 1, 1920, the Railway Company ceased to haul said ores or to return said empty cars under the Railway Company's published tariffs or otherwise or at all, and said trackage license agreement, approved by both said Commissions as aforesaid, was knowingly allowed by them to continue in full force and effect, undisturbed to the present time, as an agreement whereby said ore transportation and the incidence thereof were taken from the Railway Company and made the purely private industrial interplant haul of the mining company solely, divorced from any carrier or public aspect whatever.

(7) By said trackage license agreement dated May 28, 1920, and effective September 1, 1920, it was and is provided that all trackage rights and privileges be, and were, granted the mining company "to enable it to continuously transport its said ores from its said mine to its said mills as aforesaid and to return all empty cars and equipment to its said mine"; and that "should the Copper Company at any time during the life of this agreement request the Railway Company to move or transport any of the ores of the Copper Company from its mine to its said mills, the Railway Company will perform this service in accordance with and for the compensation provided in and by its then established rate for such service".

And it was provided by said trackage license agreement that, "Copper Company shall have the right to select and shall select and employ all engine and train crews to man and operate the trains and equipment so used by it in transporting its ores, as aforesaid, over the tracks of the Railway Company. All engine and train crews operating the engines, cars, trains and equipment of the Copper Company shall be the sole employes of Copper Company, compensated for work and labor by it alone".

By said trackage license agreement the mining company expressly assumed all risk of loss or damage to any property owned by it or in its custody or under its control, "or to its employes" suffered or sustained by "the movement over the tracks of the Railway Company of any engine, cars or trains by the Copper Company, or under its supervision or control * * * except that if such loss, damage or injury, as aforesaid, shall be caused by the negligence solely of the employes of the Railway Company, the Railway Company shall be responsible therefor".

Each the Railway Company and the mining company agreed "to save the other harmless from all loss, damage or injury caused by the negligence of its sole employes, and from all liability and claims therefor, and all costs or expenses occasioned thereby"; that "in case of any wreck or collision upon the lines of the Railway Company, between any engines, cars or trains of the parties hereto, the party whose employes are alone at fault, will be solely responsible for, and shall settle, all loss and damage caused thereby, and shall save the other party harmless. In case, however, any such wreck or collision shall occur, and it shall be impossible to determine whose employe or employes are at fault, then each party will bear and pay all the loss, damage or injury which its own property, or property in its custody, or its employes, may have suffered in consequence thereof". And again

that, "The Railway Company shall be solely responsible for any and all loss or damage, either to persons or property, occasioned by the negligence or carelessness of its employes; and likewise the Copper Company shall be solely responsible for all loss or damage to persons or property occasioned by the negligence or carelessness of its sole employes”.

And it was further provided that, "In case for any cause other than the willful act of either of the parties hereto, the Copper Company's transportation of its ores as herein provided shall be interrupted or delayed, then neither of the parties hereto shall have any claim against the other for loss or damage of any name or nature by reason of such interruption or delay". And again that, "In case any of the trains of the Copper Company shall be wrecked, such wreck may be picked up and removed by the Railway Company and the cost of such service shall be borne and paid by the Copper Company".

And after that agreement had carefully provided for the disposition as between the Railway Company and the mining company of all liability to result from their respective operations and the negligence or default of 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 enjoyment shall at all times give way to the requirements 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 Competition 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 utimate 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 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