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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 particularly 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 while so engaged, 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 adminis

ters the State Unemployment Compensation Fund, 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, or called, 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 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) Upon notice by the Interstate Commerce Commission, a hearing was held at Ely, Nevada, June 20-21, 1939, before Examiner E. M. Steer for the Commission, in Ex Parte No. 72 (Sub-No. 1), "In the matter of regulations concerning the class of employes and subordinate officials that are to be included within the term 'employe' under the Railway Labor Act," "to determine whether or not the Commission's order then in effect, defining and classifying employes and subordinate officials, should be amended and/or interpreted, pursuant to the 5th paragraph of Section 1 of the Railway Labor Act, as amended June 21, 1934, so as to include the work performed by persons engaged in operating the so-called ore line of the Nevada Consolidated Copper Corporation and/or the Nevada Northern Railway Company.

The facts involved in the Nevada case before the Interstate Commerce Commission were, for our purposes here, substantially the same as the facts here discussed. Nevada Consolidated Copper Corporation was engaged in a like operation between its mines near Ruth, Nevada, and its reduction works at McGill, Nevada, some 22 miles distant. The Examiner for the Interstate Commerce Commission concluded that the ore haul employes there involved were employes of the Nevada Consolidated Copper Corporation and were engaged as such in the latter's private industrial interplant ore haul, and that they were not employes of the Railway Company or engaged in the performance of the latter's work.

The ore haulage here involved is not in fact a carrier service, and the workers therein engaged, therefore, cannot be in the service of a carrier. It is the "continuing authority of the employer" to which the worker must be subject. But in this instance the "employer" is a mining company, not a carrier, and the employment relation is not within the purview of the Railway Labor Act, because only carriers are employers and only the carrier's employes are within the Act's definition.

The Examiner for the Interstate Commerce Commission disposed of that subject in the Nevada case as follows:

“The statute here under consideration is the Railway Labor Act. In order to be a railway employe within the meaning of that Act, a worker must be in the service of a carrier. The ore-line workers are not in the service of the Nevada Northern, because the work they do is the work of the copper company. The Nevada Northern does not transport the ore tonnage, and is without authority to do so. Hence, the ore-line service cannot accurately be termed the work of a railroad employe."

And again,

"The provisions of the Railway Labor Act are of a positive and definite character. The line of demarcation between individuals who are railway employes, and those who are not railway employes, is quite sharp and clear.

To be a railway employe within the meaning of the Railway Labor Act, the worker must be in the service of a carrier. A rail carrier is defined by the Railway Labor Act as a railroad which is subject to the Interstate Commerce Act. The Nevada Northern Railway is a carrier of that type, but the copper company is not.

Inasmuch as the copper company is not a carrier, within the meaning of the Railway Labor Act, the only way the ore-line workers can legally be classified as railway employes is to find that they are in the service of the Nevada Northern. The work these men do is to move trainloads of crude ore in one direction, and trains of empty cars in the other. The ore is hauled by the use of locomotives and cars owned by the copper company, and by workers paid by that company. The ore trains pass over about 22 miles of Nevada Northern track which is used by the copper company under a trackage agreement that was executed about 19 years ago. Under this arrangement, the copper company pays a proportionate share of the taxes, roadway maintenance expense, and other operating expenses which are allocated to the 22 miles of track, and the accounting records pertaining thereto have been approved by this Commission. To hold that the ore-line workers are in the service of the Nevada Northern, it must be found that the movement of the ore trains is railroad transportation service which is performed by that carrier. And it cannot accurately be said, as a matter of fact, or as a matter of law, that the ore tonnage is moved by the Nevada Northern. At no time does this carrier have actual possession or legal possession or custody of the ore tonnage. At no time does it transport, or have authority to transport that tonnage. It follows that the ore-line workers are not in the service of, and are not employes of, the Nevada Northern."

And again,

"Counsel for the participating parties entertain different views concerning the meaning of Section 1, Paragraph 5, of the Railway Labor Act. This paragraph, recited elsewhere herein and not yet construed by the courts, defines the term employe, and it appears from the definition that an individual may be in the service of a rail carrier and still not be an employe within the meaning of the Railway Labor Act. That statute provides three tests by which to identify the workers who are subject to its provisions. First, the individual must be in the service of a carrier. Second, the carrier must have continuing authority to supervise the service which the individual renders. Third, the work which the individual performs must be defined by this Commission as the work of a railroad employe or subordinate official. To be an employe within the meaning of the Railway Labor Act, an individual must pass all three tests. The ore-line workers involved in the instant proceeding are not even employes under the first test, because they are not in the service of a carrier as that term is defined by the Railway Labor Act. Nor are they railway employes within the meaning of the 1938 Fair Labor Standards Act."

None of the mining companies is, or has been, a carrier, and the mining companies cannot be "employers" under the Railway Labor Act. Without repudiating or refuting that argument, the Interstate Commerce Commission subsequently decided that, under the circumstances, it had no jurisdiction in the premises.

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

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 their 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.

(14) 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 service by each respective company." (Exhibit B.) The latter is a contract between the mining company and its employe. And 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.

(15) 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 inter

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