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July 13, 1954



Irving R. Segal, J. B. Millard Tyson, Schnader, Harrison, Segal & Lewis, Philadelphia, for appellant.

William L. Hammond, Sp. Deputy Atty. Gen., Frank F. Truscott, Atty. Gen., Harrisburg, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, and Ervin, JJ.

Author: Hirt

[ 176 Pa. Super. Page 70]

HIRT, Judge.

This is an appeal by Lehigh Navigation Coal Company, Incorporated (hereinafter referred to as Lehigh), from an order of the Unemployment Compensation Board of Review, allowing a claim credit as to Andrew J. Yevcak for the week ended June 4, 1952. By stipulation it is agreed that the appeal will decide the claims of 75 other employes of Lehigh for unemployment compensation for the same period.

Lehigh conducts deep mining operations on its extensive properties in the vicinity of Lansford and Tamaqua, Pennsylvania. The claimants, all of whom worked for Lehigh in its deep mines, were members of either Local Union No. 1738 or Local Union No. 1571 of United Mine Workers of America. Lehigh's product for the market, as processed at the breaker, is a mixture of deep mined, with strip mined coal all of which is produced on the above properties. On April 23, 1951, Lehigh entered into a written contract with Winton Coal

[ 176 Pa. Super. Page 71]

Mining Company, Inc., a strip mining contractor (hereinafter referred to as Winton), under which Winton set up a complete stripping plant on Lehigh's property. Winton performed the stripping operations entirely with its own employes and, using its own equipment, was paid the contract price on a unit basis for the strip mined coal delivered. All of Winton's employes were members of Local No. 4004 of the United Mine Workers of America which was an autonomous local separate and distinct from the local unions of the deep mine workers. On or about May 27, 1952, the employes of Winton and a grievance against their employer and to induce a settlement of it favorable to them, they then voted a strike 'holiday' to extend from May 28 to June 3, 1952, inclusive. As a result of the strike the stripping operation was suspended and no stripped coal was produced during that period. When delivery of strip mined coal was interrupted, Lehigh closed its operations in its deep mine operations, at Lansford and Tamaqua, for that reason alone, and laid off the claimants for the duration of the strike. About 30% of the raw coal processed by the Lansford and Tamaqua collieries comes from Lehigh's stripping operations. It costs less to produce strip mined coal and Lehigh suspended operations when the employes of Winton struck because it was economically unprofitable to market deep mined coal unmixed with the cheaper product. During the stripping strike there were continuous negotiations between Lehigh's management and a Mine Committee representing all union members throughout the Panther Valley where Lehigh operates. But all efforts of the committee to persuade the officers of Local 4004 to call off the strike by Winton's employes were unsuccessful.

It is the contention of appellant that claimant's unemployment was due to a labor dispute at the 'factory, establishment or other premises' of Lehigh at which

[ 176 Pa. Super. Page 72]

    he was last employed and that he therefore is ineligible for compensation. The sole question in this appeal therefore is whether the labor dispute between the strip miners and Winton amounted, in law under the circumstances, to a dispute between them and Lehigh which under § 402(d) of the Act of December 5, 1936, P.L.(1937) 2897, as amended 43 P.S. § 802, disqualified claimants from compensation. There was functional integration in the operation of the strip mine with that of the deep mines in the mingling of the products of both for the market. But the labor dispute cannot be extended from the strippings to the place where claimants were employed unless the striking workmen in reality was employes of Lehigh. The ultimate decisive question therefore is whether Winton was an independent contractor.

The question involves a construction of the contract between Lehigh and Winton. By its terms Winton was obliged to furnish complete stripping plant and equipment and appliances as well as all labor supervisors necessary for excavating and removing all rock and overburden to designated dump sites and to excavate and load all coal acceptable to Lehigh 'all in skillful and workmanlike manner to the satisfaction of [Lehigh's] Engineer.' Winton also agreed to erect all necessary buildings and to construct additional roads necessary to the stripping operation. Beginning with April 9, 1951, Winton was obliged to 'employ as many men and shifts in overburden removal consistent with the requirements necessary to furnish an average of 50 mine cars of coal on each day worked by Tamaqua Colliery'; the coal delivered to be 'reasonably free from black ...

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