Utah Copper Co.

In the Matter of UTAH COPPER COMPANY, A CORPORATION, AND KENNE- COTT COPPER CORPORATION, A CORPORATION and INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS, C. I. 0. In the Matter of UTAH COPPER COMPANY, A CORPORATION and THE INDEPENDENT ASSOCIATION OF MINE WORKERS Cases Nos: C-2354, and C-2355, respectively.-Decided February 00, 1943 Jurisdiction : copper mining and milling industry. Unfair Labor Practices Interference, Restraint, and Coercion: supervisory anti-union statements; ques- tioning of union employees individually as to authenticity of signatures on check-off authorizations and rejection of certain authorizations because of their form in contrast to acceptance, without question, of similar check-off authorizations presented by assisted union; refusal to confer with union rep- resentatives concerning members' grievances in contrast with entertainment of grievances presented by representation of minority dominated union. Company-Dominated Unions: formation of Mill Association, as successor to, and in face of Trial Examiner's Report recommending disestablishment of, prede- cessor union in previous proceeding ; hasty recognition and grant of dues check- off pending Board's disposition of union's petition for determination of repre- sentatives;-announcement to employees of recognition and denial of domina- tion of predecessor union in notice of disestablishment of predecessor in pre- tended compliance with Board's order in previous proceeding; participation of supervisors in dominated union's affairs; anti-union and pro-Association statements of supervisors; permitted use of room in company dormitory as office of Association; permitted use of company multigraph by Association- continuance of-recognition of Mine Committee, formed by the respondents in 1919, under bylaws subject to change only with approval of the respondents; supervision and assistance in elections of members ; other assistance-forma- tion of Mine Association by members of Mine Committee; anti-union and pro- Association statements of supervisors ; entertainment of grievances- presented, by minority Association's representatives in contrast with refusal to consider similar grievances presented by union. Remedial Orders : disestablishment of dominated organizations. Practice and Procedure : upon a complaint alleging an employer's domination of a labor organization, the Board considered events which occurred prior to a stipulation for a consent election in which the organization in question ap- peared upon the ballot, when it appeared that the employer continued its un- fair labor practices after the stipulation. 47 N L. R B, No. 99 757 758 DECISIONS OF NATIONAL LABOR RELATION BOARD DECISION AND ORDER On September 29, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceedings; finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and that they take certain affirmative action, as set forth in the copy of the Inter- mediate Report annexed hereto. Thereafter, the respondents, the Mill Association, and the Mine Association filed exceptions to the Inter- mediate Report and the respondents filed a brief in support.of their exceptions. - The Board has considered the rulings made by the Trial, Examiner at the hearing and,finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. Pursuant to notice, a hearing was held before the Board at Wash- ington, D. C., on January 14, 1943, for the purpose of oral argument. The respondents, the Union, the Mill Association, and the Mine Asso ' ciation were represented by counsel and participated in the hearing. The Board has considered the Intermediate Report, the respondent's exceptions and brief, the exceptions of the Mill Association and the Mine Association, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as indicated below. 1. The Trial Examiner has found that E. W. Engelmannj general superintendent of the respondents' mills, admitted that the evidence adduced at a Board hearing in September 1937, upon a petition by the Union for investigation and certification of the representatives of the respondents' mill employees, showed that the Union had beelr designated by a majority of these employees as their bargaining repre- sentative. He has also found that "the evidence taken at the hearing in September 1937 ['showed] the Union's majority." The record dis- closes no such admission by Engelmann and the evidence of the Union's representative stattis presented in the prior representation proceeding was by no means conclusive.' These findings of the Trial Examiner are hereby reversed. 2. The Trial Examiner has found that the respondents' insistence upon determination of the Union's claim to majority representation only after "a formal hearing with its incident delay" shows the respondents' intent "to oppose and resist the Union's attempt to organ- Engelmann is incorrectly referred to as "Englemann" at various points in the Inter- mediate Report. 2 7 N L R . B 928. UTAH COPPER COMPANY, A CORPORATION 759 ize the employees." We do not believe it to be improper per se for an- employer to insist upon the orderly procedure provided by the Act for the determination of a question concerning representation. How- ever, as the Trial Examiner points 'out, the respondents' immediate grant of the Mill Association's request for recognition upon the basis of a check of that organization's membership applications contrasted sharply with their insistence upon a formal Board hearing as a pre- requisite to recognition of the Union. We find', as did the Trial Ex- aminer, that by their disparate treatment of the requests for recogni- tion made by the Mill Association and the Union, the respondents, assisted, and demonstrated their partiality for, the Mill Association. , 3. The Trial Examiner has found that the Regional Director ad-, wised the respondents that the notice which they had posted on June 24, 1938, did not comply with the Board's order in Case No. C-399.3 It does not appear from the record that the Regional Director so advised the respondents, and the finding of the Trial Examiner is hereby reversed. We' agree with the Trial Examiner, however, in find- ing that the notice did not in fact comply with our prior order, and that-the denial in the notice of the respondents' commission of 'the un- fair labor practices previously found by the Board, coupled with the announcement in the notice of the disestablishment of the Mill Committee and of the recognition of the newly formed Mill Associa- tion, served to create the impression among the employees that the respondents favored the Mill Association as they had favored the Mill Committee. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, Utah Copper Company, Salt Lake City, Utah, and Kennecott Copper Corporation, New York City, and their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers, or with the formation or administration of any other labor organiza- tion of their employees, and from contributing financial or other sup- port to Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers, or to any other labor organization of their employees ; (b) Recognizing Employees' General Committee, or The Inde- pendent Association of Mine Workers, or The Independent Association 3 7 N. L R. B. 928. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Mill Workers as the representative of any of their employees-for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other condi- tions of employment; (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist-labor•organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from and completely disestablish Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers as rep- resentatives of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Post immediately in conspicuous places throughout their mine and mills in Bingham Canyon, Arthur, and Magna, Salt Lake County, Utah, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating: (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1, (a), (b), and (c) of this Order ; and (2) that the respondents will take the affirmative action set.forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the, Twenty-second Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith. INTERMEDIATE REPORT Mr. Paul S. Kuelthau, for the Board. Messrs. C. C. Pal sons, William M. McCi ca, and A D Moffatt, of Salt Lake City, Utah; for the respondents. Mr. 0. W. Carlson, of Salt Lake City, Utah, for the Mine and Mill Associations: SPATE\fENT OF THE CASE Upon amended charges duly filed by the International Union of Mine, Mill and Smelter Workers, C. I. 0., and The Independent Association of Mine Workers,' herein called respectively the Union and the Mine Association,' the National 'The case captions are corrected pursuant to the motion to conform the pleadings to the proof which was granted at the hearing. z The Mine Association charged that the Employees General . Committee at the - respond- ents' mine in ,, Bingham , Canyon, Utah , was 'company-dominated ; the Union charged not only that the Employees General Committee at the mine was company -dominated, but also that the Mine Association , and The Independent Association of Mill Workers were company-dominated The cases were consolidated for the purpose of hearing UTAH COPPER COMPANY, A CORPORATION 761 Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-Second Region, Denver, Colorado, issued its amended complaint 11 dated June 1, 1942, against the Utah Copper Company, herein called Utah Copper, and the Kennecott,Cppper Corporation„herein,called-Kennecott,.allegiig,that,Utah Copper and Kennecott, herein collectively called the respondents, had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1) and (2 ) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the amended complaint, as further amended at the hearing, alleged in substance that the respondents: (1) by numerous specified acts extending over the period from 1938 to the date of the amended complaint, dominated, interfered with the formation and administra- tion, and contributed financial and other support.to The Independent Association of Mill Workers, a labor organization of the respondents' employees working at their mills at Magna and Arthur, Utah; (2) by numerous specified acts extending over the period from July 5, 1935, to the date of the amended complaint, domi- nated, interfered with the formation and administration, and contributed finan- cial and other support to the Employees General Committee and the Mine Associa- tion,,,labor orgariizdtions of ther;respondents' employees working at -their mine at Bingham Canyon, Utah; (3) from January 1938 to the date of the amended complaint urged and warned employees to refrain from joining or retaining membership in the Union, and in other ways discouraged membership in that organization, or in any labor organization affiliated with the A. F. of h.; and (4) by these and other acts interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. Copies of the complaint, the amended complaint and the accompanying notice of hearing were duly served upon the respondents. The Independent Association of Mill Workers, herein called the Mill Association, the Mine Association, the Union, and the Employees General'Committee at the respondents' mine, herein called the Mine Committee. The,iespohdents, the Mule Association, and the- Mill Association filed answers to the amended complaint. In their joint answer the respondents denied the commission of unfair labor practices as alleged in the amended complaint In its answer the Mine Association denied the allegations of the amended complaint insofar as they related to the Mine Association, and admitted the allegations pertaining to the domination of the Mine Committee, except that it denied that the respondents had dominated and interfered with the Mire Committee "by discouraging membership in any nationally affiliated labor organization of its employees." The Mill Association in its answer denied the allegations of the amended complaint insofar as they related to_ the Mill Association, and- alleged affirmatively that by its conduct of an election on July 18, 1939, in which the Mill ,Association was permitted to participate and in which that organization received a majority of the votes ciist for collective bargaining, representative, the Board was precluded and estoppel from considering the alleged acts of domination which occurred prior to the date of such election. Pursuant to proper notice, a hearing was held from June 15 to July 1, 1942, at Salt Lake City, Utah, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondents, the Mine Association and the Mill Association were represented by counsel and all partici- pated in the hearing. The.Union and the Mine Committee entered no appear- ances. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on .the issues was afforded all parties. At the beginning of the hearing the respondents moved to strike certain allegations of the amended complaint, or in the alternative moved for a Bill of 762' DE'CJSIONS OF NATIONAL LABOR RELATIONS BOARD Particulars The Mine and Mill Associations demurred to sections of the amended complaint upon the ground that they were indefinite and uncertain -and did not apprise the Associations of the manner in which the respondents 'dominated or interfered with them. The motion to strike was granted, and 'the demurrers were sustained, in part. With respect to those parts of the motion or demurrers not granted or sustained, the undersigned informed the parties that he would entertain a request for additional time in which to meet such allegations in the event of surprise, or if the necessity be shown No such request was made The Mine'Association and the Mill Association each moved for separate hearings. The motions were denied. At the end of the Board's case and at the conclusion of the hearing, counsel for the Mine and Mill Associations moved to dismiss the complaint with reference to each of those organizations. The motions were denied Board's counsel moved without objection to amend the pleadings to conform to the proof at the close of the hearing. The motion was granted At the conclusion of the hearing, counsel for the Mine and Mill -Associations moved for a mistrial upon the ground that certain circulars printed and distributed by the Union would have had some influence on the witnesses who testified, and that this constituted interference with the hearing.' Said counsel knew of no witness who had been so influenced or whose testimony had been affected by the circulars An examination of the circulars reveals nothing which can reasonably be construed as constituting interference with the hearing The motion was denied On the final day of the hearing, the Mill Association offered in evidence minutes of its membership meetings, minutes of meetings with the respondents, and minutes of meetings of its Board of Trustees, and also a digest of such mantes The undersigned reserved ruling thereon, and advised the parties that lie would pass thereon in the Intermediate Report. No objection was raised to this procedure The minutes together with the digest are hereby admitted in evidence as marked. After the close of the hearing'counsel for the respondents requested that the consent-election stipulation under which the Board conducted an election on August 24, 1938, among the respondents' employees be admitted in evidence Counsel for the other parties raised no objection to the offer It is received in evidence as Respondents' Exhibit 15. At the end of the hearing opportunity was afforded all parties to argue the matter orally before the Trial Examiner, but this privilege was waived. All parties were invited to file briefs with the undersigned within 15 days from the close of the hearing Briefs have been received from counsel for the Board, the respondents, the Mill Association and the Mine Association. Upon the entire record of this case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS Kennecott, a New Yoik corporation, with its principal office in New York "City, is engaged with its subsidiaries in the copper mining industry in the United States, Alaska, and Chile ; in the copper fabricating industry in the United States ; and in incidental transportation operations With its subsidiaries it ranks as the second largest copper mining enterprise in the world and the largest in the United States ' Among the properties owned by Kennecott are a• large open-pit copper inine, together with bleaching and precipitating plants and other properties, located in Bingham Canyon, Salt Lake County, Utah, and two mills, known as the The circulais summarized and commented upon the testimony of certain witnesses UTAH COPPER COMPANY, A CORPORATION 763 Arthur and Magna mills, also located in Salt Lake County, approximately 17 miles from the mine. .Utah Copper, a Delaware corporation with an office and place of business in Salt Lake City, Utah, is a wholly-owned and controlled subsidiary of Kennecott. ,It is engaged as agent for Kennecott in the maintenance and operation. of Kennecott's mine at Binghain Canyon, and its Arthur and Magna mills At the mine, Utah Coppei mines ore containing copper and' substantial values in gold. silver and molybdenum The ore so mined is transported by Utah Copper to the Arthur and Magna mills. At the mills the ore is reduced to copper concentrates' which contain, in addition to copper, substantial quantities of precious metals, and to molybdenite concentrates Substantially dll of the molybdenite concen- trates are sold and shipped to customers in states other than the State of Utah without further processing The copper concentrates are delivered by Utah Copper, together with copper precipitates produced at the mine, to the smelter of the American Smelting and Refining Company at Garfield, Utah, for smelting. After the concentrates have been smelted, the metals produced,-in the form of blister copper, are shipped front the smelter to three refineries operated by the the American Smelting and Refining Company in' the States of Maryland, New Jersey and Washington At the refineries, the copper and precious metals, of which blister copper is composed, are separated, purified, and prepared for market Kennecott receives from the said refineries a quantity of each of the iefined metals equivalent in kind and quantity to the metal content of the con- centrates and precipitates delivered to the smelter at Garfield, Utah, by Utah Copper from the Arthur and Magna mills and the Bingham Canyon mine. Ken- necott sells the refined metals in the world markets through its wholly-owned subsidiary, Kennecott Sales Corporation Virtually all of the copper, gold, silver and molybdenite concentrates produced as outlined'above are shipped to points outside the State of Utah. In the course and conduct of the business as outlined the respondents have continuously caused large quantities of materials, equipment and supplies used in such operations to be shipped from points outside the State of Utah to the mine and the mills in the State of Utah. - The respondents concede that their operations occur in interstate commerce, and that they are subject to the jurisdiction of the Board At the time of the hearing the respondents employed approximately 2,300 workers at the mine, and approximately 2,000 workers at the mills It. THE ORGANIZATIONS INVOLVED ' International' Union of Mine, Mill'and Shelter Workers is a labor organization affiliated with the Congress of Industrial Organizations It admits to member- ship employees of the respondents at both the mine and the mills Employees' General Committee is an unaffiliated labor organization composed of employee representatives selected by the employees in the different depart- ments at the respondents' mine. The Independent Association of Mine Workers is an unaffiliated labor organi- zation, admitting to membership employees of the respondents working at the mine The Independent Association of Mill Workers is an unaffiliated labor organi- zation, admitting to membership eiployees of the respondents working at the - mills. r 764 DECISIONS OF NATIONAL LABOR RELATIONIS BOARD III THE UNFAIR LABOR PRACTICES A The formation of the Dull Association; acts of assistance, interference and domination On February 7, 1938, 1'. 1-1. McNally, Trial Examiner for the Board, filed his Intermediate Report in Case No. C-399.' That case involved the same respond- ents as the present case In his Intermediate Report the Trial Examiner found that the respondents had violated the Act by discouraging their employees from joining the Union and by dominating, interfering with and contributing support to the Employees General Committee, herein called the Committee, a labor organi- zation at the respondents' mills.' The Trial Examiner recommended that the Board order the respondents to cease and desist from interfering with the employees' right of self-organization ; to refrain from recognition of the Com- mittee as a representative of the respondents' employees, and to disestablish the Committee as such representative On February 9, 1938, the representatives and officers of the Committee held a meeting at which McNally'' Intermediate Report was discussed at length. At the meeting E. L. Cannon, president, Reed Damron, vice president, and John L Pink, a representative, -were appointed "to visit the Industrial Commission of the State of Utah to obtain information regarding the formation of a union which would be in accordance with the Act. Each representative was instructed to ascertain the desires of the employees in his department regarding the forma- tion of a new organization. A further meeting was held February 11. At this meeting Cannon reported that the Industrial Commission had advised the com- mittee appointed on February 9 that it was unable to supply any information regarding the Act. The representatives who had been instructed to ascertain the desires of the employees, reported a diversity of opinion among the employees ; that some desired the C. I. 0., some desired the A. F. of L. and some desired an unaffiliated organization as bargaining agency. A number of arguments ensued, and as a result, a motion was made and carried that the Committee refrain from talking about other labor organizations The three individuals, Cannon, Dainron and Pink, named to the committee at the meeting on February 9, together with Rich, secretary-of the Committee, con- tinued their efforts to four a new organization Cannon, the chairman of the Committee, testified that he was requested by Pink, department representative of the Committee, to take the lead in forming a new organization. On or about February 22 the four individuals named sought advice from an attorney in Salt Lake City who, in tuin, referred then to O. W. Carlson, present attorney for the two independent associations at the mine and mills. During February and March a series of meetings with Carlson followed at which a constitution was drafted, and it was agreed by this committee that E L Cannon act as president, John L Pink as vice president,-Lester 0 Larson as treasurer, and Fred Rich ,as secretary ofthe new organization... The draft constitution provided that the named individuals should constitute the officers of the organization until the first Thursday in December 1938 The name selected for the organization was "The Independent Association of Mill Workers", and it will be referred to hereinafter as the Mill Association The promoters of the Mill Association originally in- tended to include employees of the respondents' mine in the organization, and 4 The Board upheld the recommendations of McNally In the Matter of Utah Copper Company, etc , 7 N. L. R. B 928. Not to be confused with the Mine Committee , discussed more fully heieniafter. UTAH COPPER COMPANY, A CORPORATION 765 several individuals from the mine, including Russell Anderson, chairman of the Mine Committee, attended the meetings in Carlson's office The application cards first printed designated the organization as "The Independent Association of Mine and Mill Workers". However, this proposal was not carried through, and the Mill Association confined itself in its initial organizing) efforts to the mill employees. The first public meeting of the Mill Association was held in the Cyprus High School at Magna, Utah on March 25, 1938. Handbills were distributed near the mills at Magna and Arthur, announcing the meeting as one at which a plan of labor relations formulated by a group of employees of the Arthur and Magna mills would be considered. Cannon, first introduced by Rich, presided at the meeting which was attended by 400 to 500 people. Attorney Carlson attended and proposed the draft constitution to the meeting. The constitution was discussed and adopted in part. The second public meeting of the Mill Association was held April 25 at the Cyprus High School. Again handbills announcing the meeting were distributed near the mills. The handbills stated that an amendment to the Constitution would be considered. Again Cannon presided over the meeting, which was not so well attended as the first. The first membership meeting was held May 16 also at the Cyprus High School. On May 19 Cannon and Rich on behalf of the Mill Association directed a letter to the respondents in which they stated that the Mill Association represented a majority of the respondents' employees at the mills and requested that the respondents deal with it as bargaining agent of such employees. Upon receipt of the•Mill Association request D D Moffat,'vice president and'general manager of the respondents, instructed Englemann, general superintendent of the Arthur and Magna Mills, to check the signatures on the Mill Association cards, and the number of employees signing such cards to ascertain whether they constituted a majority of the employees. ' On May 23 Englemann and other representatives of the respondents met with Cannon and Rich and checked the signatures of the employees on their time cards. Englemann reported to Moffat, that the check showed that, out of 1,239 employees eligible for membership in the Mill Associa- tion, 672 had signed membership applications. On May 24 Moffat advised Cannon and Rich by letter that the respondents would recognize the Mill Associa- tion as the collective bargaining agent for the employees of the mills, and also that they would grant the Mill Association's request for the check-off of dues and fees.' The respondents have continued to recognize and deal with the Mill Associa- tion as the sole collective bargaining agent of the mill employees since that time. Englemann admitted at the present hearing that he knew the Union had been active at the time when the check was made and recognition granted to the Mill Association, and that the evidence adduced at the Board hearing held the early part of September 1937 showed that the Union had been designated by a majority of the mill employees. He was asked whether the fact, that some of the employees might belong to the Union, and that the Union was active, did not raise some doubt as to whether the check would show a free choice of the employees. He replied that his sole interest was in,carrying out Moffat's order. On May 24 or 25 the respondents posted on the bulletin boards in the mills copies of the Mill Association request for recognition and the respondents' answer granting the request. 9 The Mill Association letter requesting recognition made no request for the check-off of dues and fees. Cannon and Rich testified that the request was 'made orally before May 24. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The treatment accorded the Mill Association recognition, request contrasts sharply with the treatment of a similar request by the Union. On July 1, 1937, Royle, union representative, by telephone requested recognition of the Union as the bargaining agent. Moffat refused. A letter repeating the request went unanswered by the respondents The Union then referred the matter to the Board, and asked that the Board take steps to determine whether it had a majority. The respondents refused to consent to the holding of an election to settle the question, and insisted that the question could be determined only by the holding of a formal healing with its incident delay The hearing of Septem- ber 1937 followed.' The respondents' refusal, without apparent reason, to con- sent to any determination of the Union's request for recognition except through a formal hearing delayed a decision upon that request from July 1, 1937 until June 16, 1938, and- shows a definite intent to oppose and resist the Union's attempt to organize the employees. During the period while the,Union recognition request was thus pigeonholed, the Mill Association recognition request was made. Unlike the Union request, it was not summarily rejected or denied the courtesy of an answer, and it was not only granted, within 3 or 4 clays but notices informing the employees of such grant were immediately posted on the respondents' bulletin boards This was done in the face of the evidence taken at the hearing in September 1937 showing the Union's majority. As noted hereinafter, the grant of recognition was soon followed by the grant of other privileges and concessions. A clearer demonstration of the respondents' partiahty,sn their hasty recognition ,of the Mill Association and their rejection of the Union would be hard to find. On May 27, 1938, Cannon and Rich and the other representatives of the Em- ployees General Committee met with representatives of the respondents The representatives of the respondents announced that the Mill Association had proved a majority and that it had been recognized as the collective bargaining agent of the employees The respondents also announced to the representatives present at the meeting that they no longer recognized the Committee as the representatives of the employees. Public announcement of this fact was not made to the employees generally until June 24, 1938 At a general meeting of the Mill Association held June 7, the officers named in the constitution were elected by acclamation 8 Nominations for trustees were received and the formal election of officers and trustees was ordered held June 8, the following day. Ballots for the election were printed by Rich upon the respondents' mimeograph machine Although the officers had been elected by acclamation a ballot containing their names was printed and distributed to the employees. Of the seven trustees elected on June 8, two had been representatives of the Committee until May 27. On June 25 the respondents granted to the 11Ii11 Association the use of bulletin boards at both mills. Thereafter the respondents constructed special bulletin boards for the use of the Mill-Association. The respondents posted notices upon their own bulletin boards notifying the employees of this privilege granted to the Mill Association and advised the employees to watch such boards for information concerning the Mill Association. Immediately after the Mill Association was granted recognition by the respond- ents, it commenced to handle grievances of the employees. The procedure fol- lowed was similar to that followed by the Committee. In August the respond- 4 The bearing in Case No C-399 was consolidated with Case No. R-273, following not only the Union's filing of charges of unfair labor practices but also of a petition for 'investigation . and certification of representatives 8 Cannon , 'president;' Pink , vice president ; Larson, treasurer; Rich , secietaiy UTA1 COPPER COMPANY, A CORP'ORATION 767 ents granted the representatives of the Mill Association the right to investigate and handle grievances ;at any time during working hours without loss of pay Officers and trustees of the Mill Association testified that during the period be- tween the granting of recognition and the time of the hearing they spent any-, where from 50 to 80 percent of their working time in the handling of grievances The Decision, Order, and Direction, of Election of the Board in Cases Nos. C-399 and R-273 was issued on June 16, 1938.' In, its decision and order the Board ordered the respondents to cease and desist from dominating and interfering with the administration of the Committee, and to disestablish the Committtee as the, bargaining agent of the employees In addition the Board found that a question concerning representation among the respondents' employees had arisen, and directed that an election be held to settle the question at a time when the Board should so direct. _ On June 24, 1938, the respondents posted upon their bulletin boards the fol- lowing notice : NOTICE To the Employes of Utah Copper Company Department of Mills: Complying with an order of the National Labor Relations Board, dated the 16th day of June, 1938, we hereby advise' you that this Company will not contribute financial or other support to any labor organization of its em- ployees, restrain or coerce its employees in the exercise of their right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; nor has this Company at any time engaged in such practice You are further hereby advised that on May 19, 1938, ,when this Company recognized The Independent Association of Mill Workers as the representa- tive of employes for the purposes of collective bargaining, the Employes Gen- eral Committee, Department of Mills, was disestablished. (Original Signed) D. D. MorrAT, Vice President & General Manager. The purpose of the notices required under the Board Order is to inform the employees of their right to self-organization and to dissipate as far as possible the effects of prior unfair labor practices. That the above notice fails to fulfill such purpose is obvious, as the Regional Director informed the respondents By the statement ". . . nor has this Company at any time engaged in such practice" the respondents disregarded the Board's findings, and informed the employees that all of the acts of assistance and domination with respect to the Committee are not in violation of law, contrary to the Board's decision The gratuitous reference to the recognition of the Mill Association emphasizes the respondents' preference for that organization. • On July 1 the mills ceased operations and only a skeleton force was retained. Thereafter, operations were resumed at the Magna mill on August 1, 1938, while the Arthur'mill opened some time later. On August 18, representatives of the respondents, the Union, the Mill Associa- tion and the Board entered into a stipulation providing for the holding of an election to determine a collective bargaining agent. The stipulation provided that the election be held August 24, specified the classes of employees who were B 7 N. L. R B 928 I 768 DECISLONS OF NATIONAL LABOR -RELATIONS BOARD to be eligible to vote, and made provision on the ballot so that the employees could vote for the Union, the Mill Association or neither. Pursuant to the stipulation the election was held on August 24. At the election, out of 970 em- ployees who voted, the Union received 481 votes, the Mill Association 454, and 29 employees voted for neither.19 The Union having received only a plurality of the votes cast, a run-off election was held on September 26, 1938, with opportunity to choose or reject only the Union. Out of the 977 employees who voted at the election, 282 voted for the Union, and 666 voted for no union.11 During July, August and September 1938, the respondents had continued to, deal with the Mill Association as the collective bargaining agent of the mills. On October 1, the Mill Association requested the respondents to continue to recognize it as the exclusive collective bargaining agent. 'To this request the respondents acceded, and' continued to recognize and deal with the Mill Associa- tion as the bargaining agent of the mill employees, in the face of the Mill Associa- tion's failure to obtain a majority at -the August 24th election. On June 5, 1939, the Mill Association filed with the Board's Regional Office in Denver, Colorado, a petition for investigation and certification of representatives. On July 18, 1939, pursuant to agreement entered into on July 13, 1939 between the Union, the Mill Association, the respondents, and the Board, a third election was held. The ballot on this occassion provided that the employees could select the Union, the Mill Association or neither. Of 1348 employees who voted, 784 voted for the Mill Association, 531 for the Union, and 33 for neither. The election agreement provided : The Company [respondents] agrees to recognize as the exclusive repre- sentative of the above described employees for the purpose of collective bar- gaining with it in respect to rates of pay, wages, hours of employment and other conditions of employment whichever labor organization named above receives a majority of the votes cast in said election or in a run-off election as described in paragraph 5 of this agreement. B. Interference, restraint and coercion at the mills On July 25 , 1938 employee'Frank C. Payne joined the Union. Four days later H. E. Wurzbach, chief electrician at the Magna mill , and admittedly a supervisory employee, called Payne into his office . Payne testified that Wurzbach said that A. C Ensign ( then assistant superintendent of the Magna mill ) told him that Payne had signed an application for membership in the Union . Payne admitted that he had., Payne testified that Wurzbach then asked him why he joined the Union, and' what the Union could do that the Mill Association could not do. Wurzbach pointed out that the Union had organized the Garfield Smelter of the A. S. & R. Co., and that its employees were not getting any more pay than the respondents' employees. Wurzbach concluded by saying that he did not want to discourage Payne in his memb'eiiship1in the Union, and Payne said that 'lie had not. At the time of the hearing Payne was no longer a member of the Union. When examined by his counsel Wurzbach 's attention was not specifically directed to the above testimony of Payne. Wurzbach mentioned that he did have a conversa- tion regarding the Union with Payne about the time in question . The undersigned finds that Wurzhach made the statements as outlined above. 10 8 N. L. R. B 968. 119 N. L. R. B. 775 UTAH COPPER COMPANY, A CORPORATION 769 Iii July 1939 several days before the election conducted by the Board, C. W. Gager, shift boss 12 and supervisory employee in the fine crushing department c,f the Magna mill, passed out Mill Association buttons to the employees during working hours Alvie Henline, an employee, testified that Gager asked him if he were a member of a union. When Henline informed him that he was not, Gager offered him a button. Henline declined the button saying that he was going to wait and see how the election turned out. According to Henline, Gager then said that Henline might just as well sign up then as he "figured". the Union didn't have a chance. Gager did not recall making the latter statement, but did not deny that he made it, nor that he passed out buttons. Under the circumstances the under- signed credits Henline's testimony, and finds that Gager made the statement and that he distributed Mill Association buttons Several days after the election Gager signed Henline up in the Mill Association during working hours. Henline testified further that 2 or 3 days after the election, Ray Peterson, shift foreman, told him that it was a good thing the Union did not get in, because things would be a lot different. Peterson testified that he did not recall making the statement to Henline Upon cross-examination he was specifically asked whether he denied making the statement, or that he just could not remember saying it He replied that he could'not remember saying it. The undersigned is of the opinion that Henline's testimony is entitled to the greater weight, and finds that Peterson did make the statement attributed to him by Henline. In the early part of 1940, employee Clarence Henline sought a transfer to the electrical department of the Magna mill. At that time lie was a member of the Mill Association, and he prevailed upon President Cannon to intercede with Wurzbach, chief electrician, in his behalf. Failing to receive the transfer through Cannon's efforts he took the matter up with Corfield, the respondents' electrical engineer, and was successful in obtaining the transfer. Thereupon lie relinquished his membership in the Mill Association and joined the Union. A day or two after Henline joined the Union, which was during the early pact of February 1940, Wurzbach called Henline to his office According to Wurzbach, he reprimanded Henline for not remaining on the job, for talking too much, and told him that he (Wurzbach) had heard that Henline was talking C. I. 0 and that Henlcne admitted talking C. I. 0. Wurzbach testified further that he asked Henline why he left the Mill Association; told him that the Mill Associa- tion was partly responsible for his transfer, and asked Henlcne what more the Union could do for him than the Mill Association did. According to Henlcne, Wurzbach concluded the conversation by saying that the men who "kept their mouths shut" and did their work and did not do any talking would be advanced in his department. When first questioned about this last statement Wurzbach answered by saying that lie told all employees that in effect. Later when asked whether in the above conversation he in substance, told Henline that the men who kept their mouths shut about the C I 0, and stopped talking about the C. I. 0. would be advanced, he denied that he had done so. In view of Wurz- bach's admitted statements against the Union, the undersigned does not credit his denial in this instance. The undersigned finds that Wurzbach made the statement attributed to him by Henline, as well as the preceding statements which,he admitted making. Several months later, Wurzbach in the course of ]z (lager testified that he was woikuig boss at the time of the conversation, and that he did not become shift boss until April 1941 However, his work record introduced in evidence shows that he has held his present position without interruption since October 1938, and that no change in his classification took place in April 1941 . The respondents' woik records are entitled to more reliance than Gager's unaided recollection. Moreover, its is clear from Gager's description of his duties at the time of his conversations with Henline that he exercised supervision over the work of other employees at that time 513024-43-vol. 47-49 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another conversation, stated to Henline, "You think you're quite a big shot from the C. I 0 now that you are wearing a button again, I see." 1' On January 30, 1940, Joe Barnes, boiler shop foreman, said to Robert A. Williams, an active member and officer of the Union, "If anybody stops to con- verse with you about anything but plant business, try to discourage them, for anyone found talking in groups is going to be let off. They are especially after you-after all of you." The foregoing testimony of Williams was sub- stantially corroborated by Barnes, except as to the statement that "They are especially after you-after all of you." Barnes denied that he made the latter statement, but testified that he did make it clear to Williams that he was warning all employees under his supervision. Williams made a note of the conversation shortly after it occurred, which would tend to fix the occurrence, whereas Barnes testified from his unaided memory. Under the circumstances the undersigned believes that Williams' testimony is entitled to the greater credence, and finds that Barnes made the statements attributed to him by Williams. In view of Williams' position in the Union and his activity in behalf of that organization, which facts were known to Barnes, it seems clear that Barnes was warning Williams to cease such activity. In the forepart, of October 1940, Harold A. Linke, general construction fore- man at the Arthur plant, called Victor Bohne, an employee in the electrical department to his office during working hours and there had a conversation with him about his membership in the Union. Bohne testified that Linke told him the C. I. O. was communistic, and that he better get out of it and join an organization for his own good. Linke admitted this conversation but said that he told Bohne that some of the members of their mutual fraternal organization objected to Buiuie's activity in an organization which was reported in the public pres- as being radical, Communistic and un-American, inasmuch as he was in the "elective line" of the fraternal organization, and that he (Linke) thought they were justified in taking that position Liuke also testified • that he talked to Bohne in a personal rather than official capacity, inasmuch as they had been friends for a long time.' It cannot be doubted that the logical effect of Linke's talk, accepting his own version, would be to discourage membership in the Union The time and place were ill-chosen for a personal communication Whatever Linke's motivation, the fact remains that he, a high-ranking super- visory employee, made disparaging statements regarding the Union to Bohne, an ordinary employee. With such acts the respondents are chargeable. At the mills, most of the new employees are started to work on the dike, which surrounds the area into which the tailings from the mills are carried by water The work on'the dike is that of common labor and the employees desire to be transferred to the mills where the pay is higher and the work more desirable David Back, an employee hired March 17, 1941 and put to work on the dike, credibly testified and the undersigned finds that in April 1941, Joe Fish,14 assistant foreman on the dike, urged him to join the Mill Association. Back told Fish that he did not desire to join, whereupon Fish advised him that he would have a better chance of transferring to the mill if he signed with the Mill Association. At the hearing, Superintendent Hatch indicated somewhat indefinitely that Fish was not available to testify. 1 "This statement attributed to Wurzbaeb by I3enlinc was denied by Wurzbach The preceding conversation, during which Wurzbach became quite angry according to FIenline's uncontradicted testimony, shows that at that time, as well as in his earlier conversation with Payne, Wurzbach had upheld the Mill Association at the expense of the Union, and the undersigned therefore finds that Wurzbach made the above statement. "Also spelled "Fisch" In the record UTAH COPPER COMPANY, A CORPORATION 771 Back testified further that all of the time while he was out on the dike, from March 17 until April 24, 1941, "Pete" Poulos, foreman in charge of the work on the dike, tried to get the employees to sign up with the Mill Association; that he would call the workmen over and ask them why they did not want to join ; that he kept a list of the employees who did not join the Mill Association, and that only a few of the employees did not join the Mill Association. Poulos testified that he did not recall talking about the Mill Association with Back. He denied that he had talked about the Mill Association with any of the other employees on the dike. Poulos' denial that he talked with other employ ees about the Mill Association was rebutted by John Carlyle Jones. Jones, who went to work on the dike on March 22, 1941, testified that on a number of occasions Poulos told him and other employees that the boys who joined the Mill Association would stand a better chance of getting into the mill. Poulos admitted that he knew of the activity of his timekeepers in signing employees in, the Mill Association ; that some of the employees had asked him where they could join the Mill Asso- ciation, and that he had sent such employees over to his timekeeper to be signed up. He testified that he did not remember having a list of the employees who did _ not join the Mill Association. In view of Poulos' admitted tacit encouragement of the activities of his timekeepers in signing up employees in the Mill Association, together with the fact that lie did not deny either talking with Back or keeping the list, the undersigned is of the opinion and finds that Poulos engaged in the activities described by Back and Jones. Poulos was paid by the Bingham-Garfield Railway Company, and conceivably might be considered as in employee of that company alone. However Kennecott is the parent corporation of that company as it is of Utah Copper, and as a practical matter Poulos in his work on the dike is in charge of work and employees of Utah Copper. The undersigned finds that both respondents in the present case are chargeable with Poulos' activities in behalf of the Mill Association on the dike. The employees who work on the dike assemble at the mill in the morning, and then when the starting whistle blows they are carried out to their work on the dike in a car. Poulos rode along with them in the car George Kirby, an em- ployee who commenced work in March 1941 and who replaced the regular time- keeper on his days off, testified that while he was acting as timekeeper -he distributed Mill Association application cards during working hours as the work- men would- get into the car He stated that he did so because he had observed the regular-timekeeper distribute the cards in that manner, and that he thought it was a part of the timekeeper's job When signed cards were returned to him he placed them in the first-aid box which the timekeepers carried with them on the job and in which the unsigned application blanks were also kept, for the regu- lar timekeeper Poulos denied that he had seen the timekeepers pass out Mill Association cards on the car in the morning, although lie had seen them passed out at noon He admitted that he knew that the application cards were kept in the first-aid box, and that all timekeepers passed such'cards out As noted here- tofore he had sent employees to the timekeepers to be signed up in the Mill Asso- ciation In rebuttal of Poulos' testimony that lie did not know about the distri- bution of application blanks for the Mill Association, the Board called Ben Poulson, an employee hired April 11, 1942. Poulson testified that he enrolled employees in the Mill Association from the time he started; that he passed out application blanks both on the car on the way to the dike, and while the men were working, and that he enrolled as members approximately 200 employees from the time he began working up to the date of the hearing He testified that on one occasion Poulos told him to stop such activity, but that lie heeded the admonition for not longer than a day, if that long It seems improbable to the undersigned' 772 DECISIONS OF NATIONAL-LABOR RELATIONS- BOARD that Poulos should have no knowledge of the distribution of Mill Association cards and solicitation for membership in that organization during working hours, when that activity was so general and so open that Kirby thought it was one of the duties of his job as timekeeper, and Poulson was able to sign up about 200 employees within a period of 2 months. Accordingly the finding is made that Poulos had knowledge of such activity and permitted it to be done. Employee Julian Montoya testified that in the middle of May 1941, A B. Duck- worth, general foreman of the foundry in the Arthur mill, informed him that he had been "handed in" for signing men to join the Union and that it would have to stop or he would lose his job. Montoya stated that he had not engaged in such union activity during working hours, although he had diligently solicited membership in the Union during lunch hours, and after working hours Duck- worth's version of the conversation with Montoya was as follows : "Julian, I have told you enough about your soliciting around here and interfering with the men when they are working. If you don't stay on your own floor and attend to your work, I am going to send you down the hill." Duckworth further testified that on his regular rounds through the foundry he generally caught Montoya in conversation with other employees off the floor where he worked, and that he cautioned him about it several times. He 'testified that Mike Siouris, charge floor shift boss, was the source of his infor- mation that Montoya was soliciting during working hours for the Union and in so doing was interfering with the work of other employees. Siouris was not called to testify, nor was it shown that he was unavailable. Instead the respondent offered the testimony of employee J. L. Kuntz to show the nature of Montoya's solicitation in the charge room. Kuntz testified that in April or May 1941 he and Montoya engaged in a general conversation while Montoya was waiting for some work on the charge floor. According to Kuntz, during the course of the conversation Montoya asked Kuntz if he would consider joining the Union, and Kuntz replied that he did not care to at that time. Kuntz said that Montoya had no cards and that the conversation did not interfere with his work. Although Kuntz admitted that he had talked about the Mill Association, of which he was a member, on the job, he said that he reported his conversation with Montoya to Duckworth in July 1941. Duckworth's testimony about Kuntz's reporting his conversation with Montoya was confused and he contradicted not only Kuntz but himself as well in regard thereto. He first placed his con- versation with Kuntz about a month before the hearing, then when his at- tention was directed to the fact that Montoya had been out of the foundry for several months, he said that Kuntz reported the matter to him shortly before he spoke to Montoya. As noted, Kuntz said he reported the matter to Duckworth several months after Duckworth spoke to Montoya. In addition to the testimony of Duckworth and Kuntz the respondent offered the testimony of employee Henry Carsey to show that Montoya had engaged in membership solicitation during working hours. Carsey testified that Montoya had come into the chipping room where Carsey worked 10 or 12 times, and had engaged the other employees in conversation. He testified both that he had, and had not, overheard Montoya talk about the Union to the other employees. Carsey was hard of hearing, and he stated that there was too much noise in the chipping room to talk very well. Moreover, Carsey testified that he did not report Montoya's visits to the chipping room to any supervisory employees. His testimony that he became a member of the Mill Association only because it represented the lesser of two evils is at variance with his statement that, "I was after them [other employees in the chipping room] all the time in the shop not to join the C I. 0." There y -UTAH -C'OPPER COMPANYi -A CORPORATION 773- was no showing that Montoya's duties did not take him into the chipping room where Carsey worked As opposed -to the confused and contradictory testi- mony of Kuntz, Carsey and Duckworth, the undersigned credits Montoya's testimony and his denial that he had engaged in solicitation of membership during working hours, and finds that Duckworth's statement to Montoya, coupled with his threat of discharge, was caused not by any union activity of Montoya during working hours, but because Montoya was an active and diligent member of the Union. - The treatment of Montoya is at variance with that of Cannon. Employee Frank C. Payne testified without contradiction, that on one occasion during the latter part of June or the first part of July 1938, Cannon talked with a group of 9 or 10 employees including himself for over an hour during working hours, urging the advantages of membership in the Mill Association, and that Cannon's solicitation was observed by Englemann, Duckworth, the master mechanic, and the mill foreman, whose name he did not-know, but whom he had observed directing other foremen. These officials of the respondents did nothing about Cannon's solicitation, but merely walked away. Englemann who was questioned about the occurrence, testified that he did not recall the incident. Cannon, Duckworth and the mill foreman were not called to testify about the occurrence. The undersigned finds that the incident occurred as described by Payne. On May 31, 1941, T W. Muir, a working boss and assistant to Foreman Joe Barnes, with approximately 35 employees under him, told Williams to keep out of the welding department unless he had a job in there. Shortly thereafter L. G Back, another employee, asked Muir about the order to keep'out of the welding department, and according to Williams, Muir replied, "That's the head- quarters of the C I. O. and everyone from Mr. Hatch [superintendent of Arthur plant] down knows it, and its got to be broken up." Williams' testimony was substantially corroborated by Back With reference to this incident Muir testi- fied that, in answer to Back's question he said that Mr. Hatch said the ganging up in the welding department had to stop; that then Muir added, "You fellows all know that is getting to be a regular C. I. O. headquarters." Later however, he contradicted this testimony and said that the C. I O. was not mentioned in the conversation The undersigned credits the corroborated testimony of Wil- liams and Back, as opposed to Muir's contradictory testimony, and finds that Muir made the statement as given by Williams. Williams testified further that the same day Muir told him that Roy Hatch said that `he would hate to see the Union get in because he would hate to see the mill torn down. Muir denied that he had made this statement. To sub- stantiate his denial he said that he had never talked with Hatch, and therefore could not quote him. As noted above, however, by his own admission he did quote Mr. Hatch with reference to the order to keep out of the welding shop, despite the fact that he claimed he had never talked with him. In view of this fact and the contradictory testimony concerning the preceding conversation, the undersigned finds that Muir made the above statement. Kenneth Reid. president of the Union at the mills, testified that on August 8 or 9, 1941, he asked Muir if he could make up a day that he had taken off. Muir asked Foreman Barnes about the matter, and then informed Reid that he did not think he would be permitted to make the day up because his name had appeared in the newspaper in connection with some union activity. Later, how- ever, Muir advised Reid that he would be permitted to make up the lost day. Muir gave practically the same version of the conversations as Reid. He added that he explained to Reid that the reason why it was questionable whether 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could make up the lost clay was that he reported that he was ill on the,day he took off, whereas the newspaper article indicated that be was at some con- vention. In view of the fact that, Reid was not recalled to testify whether he had reported that he was ill on the day he took off, 'and because he was permitted to make the day up, the undersigned finds that Muir's statement was not made for the purpose of discouraging Reid's union activity. - 0. Membership and participations of supervisory employees in the formation and admini stration of the 31itt Association. Below the rank of foreman the respondents have two classes of bosses in the mills. These are shift bosses and working bosses Shift bosses, the respondents admit, are super tisory employees ; working bosses, they contend, are not. In view of the fact that many working bosses were members of and active in the Mill Association a determination of their status is necessary Like shift bosses, working bosses receive 25 cents per day more than the employees with whom they work. Both shift and working bosses have the power to recommend the discharge or discipline of employees Working bosses ordinarily have fewer men under them than shift bosses , and do not lay out the work to the extent that shift bosses do. Working bosses perform manual work , shift bosses do not. Pursuant to 'their classification as supervisory employees the respondents do not pay shift bosses at the rate of time and one-half for work in excess of 40 hours per week ; working bosses are paid for such work at the higher rate's In July 1941 the respondents directed a letter to all of its supervisory employees instructing them regarding the attitude they were to take towards labor organizations These letters were sent to shift bosses but not to working bosses. That the respondents' distinction between shift and working bosses is an arti- ficial one, and that both the respondents ' officials and the employees themselves consider working bosses as supervisory employees is amply demonstrated in the record E. W. Englemann , general superintendent of both mills, in correspond- ence with Moffat referred to shift bosses as working bosses. A. B. Duckworth, general foundry foreman of the Arthur plant, classified Carlson and Siouris, two bosses under him as working bosses . On the respondents' records they are car- ried as shift bosses In November 1941 , Englemani informed the Mill Associa- tion that he would have to investigate the participation of one Snow , a working boss; in the sale i t a bid- for a job, because lie was a supervisory employee. As noted below, Muir, a working boss , had 35 men under him while Gager , a shift boss, had only 3. The duties and functions performed by T. W.,Muir , a working boss, demon- strate that working bosses are supervisory employees . Muir had approximately 35 employees working under him To such employees Muir distributed work, assigned them jobs, and gave them orders and directions. He had the power to recommend the discharge of employees and shared a joint office with Joe Barnes, his foreman . Employees applied to l iii for permission to make up time taken off from work , obeyed his orders without question, and regarded him as Barnes' assistant. In addition to the'testinmony regarding Muir, there is further evidence in,the record that the employees consider working bosses as supervisory employees. ,From its inception in 1938 until October 1940, shift and working bosses had been enrolled as members of the Mill Association . In October 1940 some question 1' The respondents did not show that this classification under the Fair Labor Standards Act had been made by Vie Administrator of that Act , and appaiently it represents the .respondents' interpretation of the requirements of that Act rather than any official de- termination of the status of working bosses 1 UTAH COPPER COMPANY, A CORPORATION i 775 as to the advisability of permitting them to continue as members of the Mill Association was raised because, as President Cannon explained, ". . . we felt that supervisory employees at a union meeting didn't give quite the right atmos- phere for free expression." 18 Because the respondents' higher officials so consider them, because their duties so label them and because the employees so. regard them, the undersigned finds that the working bosses are supervisory employees.14 A partial check of the membership rolls of the Mill Association shows that approximately 17 shift bosses and 21 working bosses were members of the Mill Association while they held such positions. Of the above,38 bosses approximately 27 were members of the Mill Association from its inception in March, April, May and June 1938, and their names were presumably counted in the pay-roll check upon which the respondents accorded the Mill Association recognition About the same number were still members and their Mill Association dues were checked off by the respondents in May 1942 The respondents knew of the membership of the bosses in the Mill Association because their names were submitted to the respondents for the check-off of dues in the Mill Association and such dues were deducted from their checks and turned over tc the Mill Association. The activities of the bosses in the Mill Association were not confined to mem- bership only. C W. Gager, a shift boss, 78 became a department representative for ,the Mill Association in October 1938. As department representative it was part of his duties to investigate and handle grievances of the employees and to attend meetings of the department representatives. In July 1939, about the time of the election conducted by the Board, he distributed during working hours Mill Association buttons and application cards, and solicited employees to join the Mill Association. M S. Bawden, sample foreman at the Magna plant, was elected department representative in October 1938.19 E. L Blair, fine crushing repairs boss, was elected department representative in October 1938. In October 1939, S. H. Beckstead, a working boss with from,7 to 11 men ender him, was nomi- nated for the office of trustee in the Mill Association He was not permitted to run for the office, but he was permitted to participate in the nomination of other candidates, and to remain as a member of the Mill Association. E M. Lambert, assistant chief tabulator, was elected and served as one of the members of the first Board of Trustees of the Mill Association. While vice president of the Mill Association in 1941, W. R. Damron acted as foreman of the foundry in the Arthur plant for a period of 6 or 7 weeks, and while president in 1942 he took the place of his foreman for about 2 weeks. As a general rule he takes the fore- man's place in his absence. Damron since 1938 has spent in excess of 80 percent of his working time in investigating and handling grievances for the Mill Asso- ciation Thus it is apparent that normally Damron spends a material part (in 1941 practically all) of his working time not devoted to Mill Association affairs, as a supervisory employee. D. Activities on behalf of the Mill Association in the respondents' time o lice David Back, John Carlyle Jones and Hugh Harding started to work for the respondents in March 1941 At the time when he is hired each new employee is instructed how to use the time clocks, given 'a time card and instructed how to "At that time a few woilcing bosses were removed" from the membership rolls, but a far greater number of shift and working bosses remained members "See International Association of Machinists v National Labor Relations Boaid, 311 U S. 72. 18 See footnote 12 supra. "The record does not disclose that he served in this capacity 776 DECISIONS OF NATIONAL LABOR 'RELATIONNS. BOARD fill it out, punch it, and where to place it These instructions are given in the time office by one of three men ; J. B. Garn, chief tabulator ; Lambert, assistant chief tabulator ; or R. H. Cushing, addressograph operator. Back, Jones and Harding all testified that someone in the time office gave, them application blanks in the Mill Association when they started to work Jones and Harding identified the man as Lambert, Back said he did not know the man's name All three employees stated that not only they, but the group of five or six new employees with them were given the Mill Association application blanks, and that they were 'told they could fill them out and give them to the dike foreman or timekeeper. Garn and Cushing denied that they had passed out application blanks for the Mill Association. Garn said he had never seen an application for the Mill Association.20 Lambert was not called by the respond- ents to testify. Back testified about receiving the application blank on the Board's case in chief, and Jones and Harding were called to substantiate Back's testimony after Garn and Cushing had testified The respondents did not then call Lambert, nor did they request that they be given that opportunity Lambert was assistant chief tabulator, who directed the work of other employees in the tabulating department. He was at work on March 17, the day when Back and Harding were given their instructions and the 111i11 Association blanks in the time office. The undersigned credits the testimony of Back, Jones, and Harding and-finds that Lambert; a supervisory/ employee, distributed to them and to others application cards for the Mill Association. E. The Mill Association office in the Arthur mill donnitos y President ' Cannon testified that the 111i11 Association rented an office from the respondents in the Arthur mill dormitory , and that the Mill Association had had the office for over a year prior to the hearing. In the office were kept ,the Mill Association typewriter , membership cards and roster, stationery, office supplies and other records . Thomas Marsh, secretary , did Mill Association work there. Marsh, secretary of the Mill Association from August 1,' 1939, to April 1942, was questioned concerning the office after Cannon testified He testified ,that he lived at the Arthur dormitory from February 1931 until July 1941, and that lie maintained a room there for "residential purposes " from July 1041 up until the time of the hearing. He admitted that he lived elsewhere during the latter period. He first testified that he paid the rent during this period, and then admitted that the Mill Association "contributed " to the payment of the rent after July 1941. When asked by his counsel whether the room was really maintained as an office of the Mill Association he replied , "No, not exclusively." From Marsh's demeanor and testimony the undersigned gained the impression that Marsh was more concerned with minimizing the effect of Cannon 's testi- mony about the office than he was in revealing the true facts . The undersigned therefore credits the testimony of Cannon and finds that the respondents rented the Mill Association an office in the Arthur dormitory for over a year prior to the hearing. F. Use of the respondents' "ditto" machines by the Mill Association As had the Committee before it the Mill Association used the respondents' duplicating machines. Fred Rich, who had been secretary of the Committee up until its demise, and who held the office of secretary to the Mill Association from m This is apparent error. Gain participated in the first check of Mill Association applications against the respondents ' payroll in May 1938 At that time he must have seen in the neighborhood of 700 Mill Association applications according to the testimony UTAH COPPER COMPANY, A CORPORATION 777 its inception until August 1939, testified that he used the respondents' duplicating machine for the duplicating of Mill Association notices, letters and ballots. He first said that he had made such use of the respondents' machine only for a short period, but when confronted with exemplars of letters and notices which had been prepared on the machine as late as July 1939, admitted that he had used the machine on Mill Association letters and notices during the entire tenure of his office as secretary. Rich testified that he used the machine with. out the respondents' knowledge, but admitted that such use occurred during working hours, in the basement of the main office at the Magna mill while other people were about. Thomas A. Marsh, who succeeded Rich as secretary of the Mill Association in August 1939, and who remained in office until April 1942, also made similar use of the respondents' machine in the Arthur office during the entire time be held office Marsh testified that he used the machine for 1\Iill Association business only after working hours, that he was given no authority to use the machine for Mill Association business by the respondents, and that he thought the respondents had' no knowledge that he made such use of the machine The machine, however, was located on the first floor of the administration build- ing at the Arthur Mill. Englemann denied knowledge of use of the ditto machine by the Mill Association. However, knowledge of the use of the machines was not denied by Marsh's and Rich's immediate superior, who presumably would be in much closer touch with their work and actions than the general superintendent of the mills. It seems highly improbable to the undersigned that the open,use of the duplicating machines, over a period of more than 4 years, upon letters, notices and ballots receiving a rather extended distribution, was unknown to the respondents, especially in view of the fact that in its prior decision the Board pointed out that the use of the respondents' duplicating machines constituted support of the Committee. The undersigned therefore finds that the respond- ents had knowledge of and permitted the use.of its duplicating machines by the Mill Association. G. The use of the icspondeats ' mailing satstem by the Mill Association Between the Magna and Arthur Malls the respondents maintain a mailing system, whereby letters are transmitted between the mills, and from and to the U. S. Mails. Both Rich and Marsh testified that they made use of the mailing system between the plants to send letters and notices to officers , department representatives and members of the Mill Association from the respondents. However, there is uncontradicted testimony in the record to the effect that any employee is free to make use of the mailing system for personal or other com- munications between the mills , and further testimony that such use of the mail- ing system had been made by employees for such purpose . Under the circum- stances the undersigned finds that the use of the mailing system by the Mill Association does not constitute evidence of illegal assistance to the Mill Asocia- tion, by the respondents H Conclusions aegaadAig domination of Mill Association, and nniteaference, coercion and restraint at the mills The respondents and the Mill Association contended that by signing the consent-election agreement of July 13, 1939, pursuant to which, the election %vas held on July 18, 1939, and by permitting the Mill Association to appear upon the ballot, the Board thereby inipliedly recognized the competency of, the Mill Association to act as collective bargaining agent under the Act, and by such acts was estopped from considering or reviewing any acts of domination or support 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which occurred prior to the date -of the election Objection was raised' to the introduction of evidence relative to company-domination of the Mill Association prior to the election In a number of cases the Board has ruled that it will not consider events offered to prove company-domination of a labor organization which occurred prior to an election conducted by the Board, in which election the name of the allegedly company-donnated oiganization is permitted on the ballot' In the Wickwire Bros case it appears that charges alleging that an association was company-dominated were filed The charges were investigated by the Board, and thereafter a consent election agreement was signed between the respondent, the charging union and the allegedly company-dominated association. The agree- ment was witnessed by the Regional Director of the Board. Between the signing of the agreement and the date of the election coercive statements were made by the respondent's supervisory employees At the Regional Director's request, notices counteracting these statements were posted throughout the plant-. The election was held, with the Association participating. The Association received a majority of the votes cast. Subsequent charges of company-d'bmination of the Association were filed. The Board found that the respondent engaged in no unfair labor practices subsequent to the election The Board, in specifically reject- ing the respondent's contention that it was estopped from proceeding on such charges, held that the policies of the Act would best be effectuated if it did not consider the events which transpired prior to the election as a basis for sustaining the allegations of the complaint with respect to the respondent's domination of and interference with the association That such holding was limited to a situa- tion where the respondent engaged in no unfair labor practices after the election is clearly stated. The'Board there said : If the respondent had engaged in further unfair labor practices after the consent election, we should disregard the consent-election agreement Any such agreement obviously contemplates that-the employer will not engage in any further unfair labor practices If the respondent's conduct after the consent election showed a continuity with its conduct prior thereto, we would consider the whole of the respondent's conduct in determining whether the respondent had engaged in unfair labor practices with regard to the Associa- tion The respondent is not shown to have engaged in further unfair labor practices subsequent to the consent election. The complaint, in so far as it alleges that the respondent dominated and interfered with the formation and administration of the Association and contributed support to it, will be dismissed. In the present case the respondents engaged in unfair labor practices after the consent election of July 18, 1939. Their conduct after the election showed a continuity with their conduct prior thereto The undersigned therefore finds that the policies of the Act will not be best effectuated by refusing to consider the respondents' acts of domination, interference with, and support of the Mill Association which occurred prior to the holding of the consent election 22 The record reveals a plethora of incidents showing the respondents' aid and sup- port of the Mill Association and its opposition to the Union. The keynote struck by Moffat's summary rejection of the Union's request for recognition and his 21 Matter of Wickwire Brothers and Amalgamated Association of Iron, Steel & Tin Workers of North America, etc, 16 N L R B 316; Matter of Hope Webbing and Textile Workers Organizing Committee of the C. 1. 0., Local No 111, 14 N L R B. 55 22 Matter of Houdaille -Hershey Corporation and Houde Engineering Aircraft Corporation and International Union, United Automobile Aircraft and Agricultural Implement Workers of America ( C I. 0.) Case No. C-2185, decided July 22, 1942, - L. R R. -. UTAH COPPER COMPANY, A CORPORATION 779 speedy grant of a like request by the Mill Association, has been followed consist- ently and unwaveringly by other supervisory employees and officials of the respondents. The differeAce in treatment accorded the two organizations is to be explained only by the respondents' preference for the Mill Association. This preference has been translated into numerous unequivocal words and acts of assistance and support. Its effect upon the respondents' employees cannot be doubted By questioning employees about their union affiliation ; by attempting to dis- suade employees from resigning from the Mill Association and from 'joining the , Union; by informing employees that the Union "didn't have a chance" to win a collective bargaining election, and that "it was a good thing" that it did not win such an election ; by reprimanding employees for talking in favor of the Union ; by crediting the promotion of employees to the efforts of the Mill Association; by threatening employees with discharge because of their membership in, or activities on behalf of the Union; and by characterizing the Union as "radical", "Commu- nistic", and "UnAmerican" the respondents have encouraged membership in the Mill Association and discouraged membership in the Union, thereby interfering, in violation of the Act, with their employees' rights to self-organization. The respondents' acts of support and domination of the Mill Association have not been confined to statements alone Fish, Lambert, Poulos and Gager of the respondents' supervisory staff actively solicited membership for the Mill Associa- tion during working hours;) Englemann , Duckworth and -Poulos, admittedly supervisory employees, permitted employees under their supervision t6 campaign for the Mill Association during working hours; the respondents permitted the Mill Association to use its duplicating machines, rented it an office in its Arthur dormitory, gaNe it bulletin boards, permitted supervisory employees and others to spend up to' 80 percent of their working time investigating and handling Mill Association grievances without loss of pay. permitted supervisory employees to become and remain members and officeis of the Mill Association, deducted Mill Association dues and fees from their paychecks and turned the money over to the Mill Association. recognized -the Mill Association as the sole collective bargain- ing agent of its mill employees in the face of a conflicting claim by the Union while such claim was under consideration by the Board, and continued such recognition after the August 1938 election had conclusively revealed that the Mill Association (lid not represent a majority of such employees. The continuity in leadership between the Committee and the Mill Association has been pointed out, as has the fact that the first steps leading to formation of the Mill Association were taken at a meeting of the Committee. To the employees at large the Mill Association must have appeared to be a revision of the Commit- tee, and as such the recipient of the respondents' continued support and favor. In similar situations the Board and the courts have held that the employer must openly disavow his support and domination of the earlier organization prior to the formation of the later organization, in order to deprive the successor of his apparently continued favor, and that there must be a' distinct and apparent line of fracture between the old and the new organizations, in order that the employees have freedom of choice ' In the present case the respondents not only failed at any time to disavow their support and domination of the Committee, but 23 See N. L R B v Newport News Company, 308 U S 241 ; N. L R B v Link-Belt Com- pany, 311 U S 584; Westinghouse Electric ct Manufacturing Company v . N. L. R. B., 112 F (2d) 657 (C C A 2), affirmed (per curiam) 61 S. Ct. 736; N. L. R. B. v. John A. Roebling's Sons Co, 120 F (2d) 289 (C C A 3) ; N L R. B v Rath Packing Co, No. 481, Orig, September 11, 1942, 11 L R R 76 (C C A 8) - 780 DECISIONS OF NATIONAL LABOR RELATIONiS BOARD their every act served to foster the impression that the Mill Association was the beneficiary of their favor and support, as had been the Committee. The respond- ents here neither before nor after the disestablishment of the Committee, dis- avowed their support and domination of the Committee; they gave no notice of the disestablishment of the Committee to the employees until after they had granted recognition to the Mill`Association, and finally, when they did announce the disestablishment of the Committee they gave as reason therefor the grant of recognition to the Mill Association, denying that such disestablishment was because of their illegal domination thereof Against such a background the respondents' support of the Mill Association' assumes more pointed and sharper significance. By all of the foregoing acts the respondents have 'dominated and interfered with the formation and administration of the Mill Association and contributed financial and other support to it, thereby interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. It is to be noted that almost without exception the above act., occurred or were continued after the election conducted by the Board on July 18, 1939. Officials of the respondents testified that the policy of the respondents was one of non-nrterfeteuce with the employees' right to self-organization, and further testified that they had often cautioned the supervisory employees that they were not to interfere with, the employees' right to self-organization or to indicate a preference for one labor organization over another. However, the record shows that such instructions were consistently violated. A somewhat anomalous situa- tion is revealed by the respondents' sending letters to some of its supervisory employees telling them to take no part in labor affairs while at the same time it deducts Mill Association dues from their paychecks and turns the money over to the Mill Association Small wonder that some of their supervisory employees were more impressed by what the respondents did than by what they said, and continued to aid the Mill Association and oppose the Union, or that they believed the respondents' notice of June 1938, wherein they advised them that dominating the Committee was not in violation of the Act. The bewilderment of one of the respondents' supervisory employees at the hearing at being called to account for statements in favor of the Mill Association and against the Union is readily under- standable. The respondents had it in their power to see that their instructions of non-interference were carried out There was no showing that any supervisory employee was ever disciplined for failure to carry out the instructions of non-interference The 'Mill Association contended that even though it might initially-have-received support and assistance from the respondents, during the four years of its existence it freed itself from the effects of such support However, the undersigned rejects this contention, as have the Board and courts on a much stronger showing of militant activity than is here made.' As shown above the acts of support and assistance continued up to the time of the hearing, and at the present time the Mill'Association numbers among its members admittedly supervisory employees of the respondents The Mill Association also pointed to the fact that at the present time it has enrolled a substantial majority of the respondents' employees as members. To this fact no importance can be attached ill view (f numerous acts of aid and assistance, to the Mill Association by the respondents The con- 24 The Mill Association on one occasion took a strike vote, which failed of passage See A L R. B. v. Lint-Belt Company, 311,U ^ S 584; TPestot n Union Telegraph Co v. N L R B, 113 F (2d) 992, 997 (C C. A 2) ; Cot nr.g Glass Works V N L RB -, 118 F. (2d) 625, 629 (C. C. A. 2). - UTAH COPPER COMPANY, A CORPORATION 781 siderable number of the respondents' employees who have not joined the Mill Association have done so in the face of the respondents' clearly expressed prefer- ence for the Mill Association. Counsel for the Board contended that the respondents should be held responsible for the activities of the timekeepers at the mills in their acts of solicitation for the Mill Association irrespective of whether the respondents had actual knowledge of such activity The principal activities of the timekeepers occurred on the dike, and the undersigned has found that these activities in behalf of the Mill Asso- ciation were known to and encouraged by Poulos, the foreman on the dike. In view of the knowledge and encouragement of such activities by the respondents, it is unnecessary to make any determination of the status of the timekeepers Counsel for the Board contended that,the minutes of the various mneeti ngs.of the Mill Association showed that that organization did not enter into genuine collective bargaining with the respondents Counsel for the Mill Association contended that the minutes did show that the Mill Association engaged in genuine collective bargaining. The undersigned, having read and considered such minutes is of the opinion that in and of themselves without supplementing testimony, such minutes are so inconclusive that they do not justify a finding either one way or the other. I Foinmation. organization and donioiation of the Mine Committee The complaint alleged and the respondents denied that the Employees General Committee at the mine, herein called the Mine Committee, was company-domi- nated The Mine Committee was similar in all respects to the Committee at-the mills which the Board ordered disestablished because of company-domination. The Mine Committee was set up in 1919 by Robert C. Gemmell, general manager of the Utah Copper Company At that time he announced to the employees that they were to elect representatives to act as their bargaining agents, and preseiibed certain rules and procedures under which such representatives were to function. The rules and procedures remained in effect from 1919 until November 1923 at which'time with certain additions they were adopted as by-laws by the representa- lives of the Mine Committee They have remained .in effect up to the present time with modification only as to the grouping of employees for the purpose of electing representatives. The Mine Committee by-laws recite that they are "accepted" by the Mine Committee and "approved" by the respondents. The by-laws also provide that if a representative is unable to dispose of a grievance satisfactorily after conferences with the foreman and the superintendent, he shall bring the matter no at the meeting with representatives of the respondents If no satisfactory settlement is reached as a result of the discussion at such a meeting, then 'a special meeting with the respondents' representatives' may be ,called at which additional facts may be presented. The by-laws further provide that the representative having a grievance to bring before the meeting may express his candid opinion on the grievance, and that such opinion shall not be held against him by the respondents, provided the bonds of discretion are not passed. No method of arbitration is provided It is apparent that the function of the Mine Committee is purely advisory, and after debating the merits of -a grievance with the respondents,*its recourse is to call a special meeting and present addi- tional arguments if any.. The only members of the Mme Committee are the representatives elected from the various departments in the mine, the employees at large are not members but are permitted to participate in the election of representatives by virtue of their employment at the mine Nominations for the office of representative are made, not-.by the employees at large but by the representatives in office. Modification of the representation plan under the Mine Committee must be approved by the respondents. .782 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD The Mine Committee holds no general meetings for the employees Consequently the employees are not afforded an opportunity to present a collective expression of opinion on matters affecting their wages, hours, or other conditions of employ- ment. The representatives, about 22 in number, meet twice each month, once by themselves and once with representatives of the respondents For attendance at these meetings the respondents pay the representatives $2.00 per meeting. Minutes of the meetings are taken down and transcribed by the Secretary of Mine Committee, who makes additional copies thereof on the respondents' duplicat- ing machines, furnishes one copy to the respondents and posts others on the respondents' bulletin boards throughout the mine. The respondents provide the main committee with an office in the respondents' main offices at the Mine without cost. Election of representatives for the Mine Committee takes place twice yearly. These elections are conducted by the respondents during working hours at the plant. All ballots and other election paraphernalia are furnished by the respondents. The ballots are courted and the results are tabulated and announced by the respondents. Any employee is entitled to vote for representatives. The Mine Committee collects no dues, nor has it any other source of revenue. On occasion the respondents give the representatives of the Mine Committee outings. In 1941 the respondents transported the representatives to and from the place where' the outing was held and paid them for the time they lost in attendance At the present time the respondents recognize and. deal with the Mine Com- mittee.as the representative of all its mine employees as collective bargaining agent. _ • Just prior to the hearing in the present case the respondents called a special meeting of the Mine Committee representatives to announce it general increase in pay. J Conclusions regarding the Mine Conwa ttee The respondents set up the Mine Committee originally and dictated its rules and procedures. These rules and procedures with modifications accepted by the Mine Association and approved by the respondents- have continued in force until the present time. The inability of the Mine Association to function as a true and free representative of the mine employees under such rules and procedures is clear. Without the consent of the respondents, the rues and procedures cannot be changed. 'Admittedly the respondents are furnishing financial and other support to the Mine Committee at the present time. The formation and administration of the Mine Committee parallel those of the Committee, already found by the Board to be company-dominated. It is found that the respondents have dominated and interfered with the administration of the Mine Committee, and have contributed financial and other support to it; and have thereby interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act. - K. The organuzatioi of the Mine Association The Mine Association had its beginning about the same time as the Mill Association. When Trial Examiner McNally recommended that the Com- mittee at the mills be disestablished many of the employees of the mine thought that the Mine Committee would also be disestablished. Accordingly a number of employees from the mine , including Russell Anderson , William E. Huebner and Joe Doyle, president and respresentatives of the Mine Committee, respec- tively, attended some of the meetings held in Carlson's office in March 1938 UTAH COPPER COMPANTT, A CORPORATION 783 at which the formation of the Mill Association was undertaken. Some of the mine employees, including Huebner and A. E. Williams, also attended one or more of the initial meetings of the Mill Association held in the Cyprus High School. When the plan ' to organize the employees of the mine and the mills into one organization was abandoned, Huebner continued his promotion of an unaffiliated organization among the employees. He made arrangements for a meeting with Evans, an attorney in Bingham, and secured a copy of the Mill Association constitution from Cannon. A series of meetings followed with Evans and employees of the mine in attendance. The constitution of the Mine Association which was practically identical with that of the Mill Association was adopted August 5, 1938. A E Williams was named as president of the Mine Association in the constitution and the names of the other officers were also set out therein. Cards secured from the Mill Association were used as a model for the Mine Association cards. Cannon and other officers and members of the Mill Association attended some of the first meetings of the Mine Association and gave the organizers support and advice. Cannon advised the promoters of the Mine Association that the mine employees could not join with the employees of the mills at the time of the formation of the Mill Association, but he told them to go ahead and form their own organization, and perhaps they could join together later., About the beginning of 1939, the Mine Association lost its active members to one of the railway, Brother- hoods, and it went into a decline. Meetings became infrequent and- finally stopped altogether For over the period of a year no meetings were held. In 1941, about the time when the A. F. of L. unions filed their petitions for.certi- "fication of representatives at the mine, the Mine Association was revised under the lead of Williams. Meetings were again held and shortly before the bearing on the A. F of L. petitions was held, 2,000 copies of the Mine Association constitution were' printed and distributed. New membership cards were printed and members were solicited. During the period while the Mine Association was being revived it sought and received help from the Mill Associa- tion. Officers of the Mine Association attended meetings of the Mill, Association, advised and counseled with them, and Mine Association meetings were attended by members and officers of the Mill Association for the same purpose. The Mill Association appointed a committee headed by Damron which was to help the Mine Association in every way possible Williams appeared on behalf of the Mine Association at the hearing on the A F. of L. petitions held in Salt Lake City in July 1941 In October 1941 the Mine Association requested and was granted the check-off of dues for its members In December 1941, the Mine Association held its first regular election and Williams was elected president In October 1941, the Mine Association also began to issue a newspaper named the "Independent News." Brooks, editor of the Mill Association newspaper "The Spot Light," assisted with the publication of the "Independent News" and most of the articles appearing therein. In January 1942, the Mine Association filed a petition for investigation and certification of representatives with the Board L. Interference, restraint, coercion at the mine In November or October 1939 employee Frank Rino, while waiting for the car to take him up to his place of work, was reading a C I 0 paper Foreman John Steele approached him and asked him what he was reading Rino told him. Steele then turned to bosses Kastelic, Marino, and Pine, who were also waiting for the car, and told them that Rino was a warden in the C. I. 0, that when Rino was hungry he came to Steele for a job, but now that he had a few 784 n DECISIONS OF NATIONAL LABOR RELATIONS BOARD dollars he joined the C. I 0. Steele then asked Reno why lie joined. Rino protested that he did not want anything and that he was not doing Steele any harm.25 A few days later Steele observed Rino wearing a C. I. 0 button . He said to Rino, "I thought you was a company man," and Rino replied that he was Steele then asked Rino why he wore the C. I. O . button and told him that if he would resign from the C . I. O. 30 other employees would do likewise.` As described below, Rino was one of the employees called in by General Man- ager Buchman and questioned as to whether he had signed an assignment for C. I 0 dues. Two days later he met Sam Pino, powder boss , on his way to work. Pino told Rino that he should be' ashamed for, not resigning from the C. I. 0.; that 50 men had dropped out and only Rino and another remained-' At the time of the hearing Rino was 'a representative of the Mine Committee Employee Thomas M. Lopez credibly testified and the undersigned finds, that 'sometime in the fall of 1939, Foreman John Steele observed him wearing a C. I. O. button and told him that he had better take it off Lopez removed the button. About the time of the Steele conversation , according to Lopez, Foreman Albert Kastelic questioned him about his membership iii the Union and asked him if he had resigned . Kastelic then added that Steele said 20 or 25 men resigned from the Union . Lopez's testimony about the conversation was corrob- orated by Kastelic . Lopez later resigned from the Union. - In the summer of 1940, Oscar Simonson , a section boss, told employee Irvin Lovelett, a member of the Union, who at that time was working in the track gang, that he (Lovelett ) would still be running a track shifter , which was a better job, if he had not been a C. I. O. organizer. On a number of occasions during 1939 and 1940 Simonson called Lovelett a "Red" and a "rebel." 28 On or about November 15, 1939, Foreman Steele also had a conversation with employee Ignacio Diaz, in which he asked Diaz , "Why did you sign with the C. I. 0 ? Why don 't you send a letter to Watson telling him not to deduct dues'? Save that dollar and a half a month." Diaz told Steele that he wanted to be a member of the organization Steele then said that it was ,not necessary to belong, showed him a list of employees who had dropped out, and warned Diaz that he would be left "holding the bag." He then advised that if Diaz wanted to be in an organization there was the Mine Committee which was good, or the Mine Association which would only cost 50 cents 29 Frank Swain , chief guard at the mine , admitted that in November 1940 he told employee Mike Baros , a member of the Union , whom he described as a strong union man and "quite radical" about it, that he believed the Union was not doing Baros any good, and that he could save the money he paid in dues. He also told Baros' wife that the deduction for union dues was u nnecessary and could be saved. 25 The above finding is based upon the credible testimony of Rino At the time of the hearing, Steele was dead. Kastelic and Pino testified that they did not recall the con- versation, but did not deny that it occurred Marino was not called as a witness 26 As will be noted from the testimony of Lopez and Kastelic discussed hereinafter, Steele ieniarked to others about employees resigning from the C I O. 2i Pino first testified that he did not recall the above conveisation He then testified about, a conversation lie had with Rino, but stated that he could not Place the date of such conversation. Rino on the contrary was definite and specific in his testimony, and it is credited by the undersigned. - 28 The above finding is based upon the testimony of Lovelett, which was corroborated by employee O'Keefe. Simonson admitted that he called Lovelett a "Red," but did not recall making the above statement The undersigned believes Lovelett's corroborated testimony is entitled to the greater weight and credits it. ii This finding is based upon the credible testimony of Diaz r UTAH COPPER COMPANY, A CORPORATION 785 Buchman, according to his and employee John Hunick's testimony, had a conversation with Hunick in May 1941. Hunick was a member of the Inter- national Association of Machinists, A F. of L., an organization which at that time was seeking recognition as collective bargaining agent for certain of the respondents' employees. , Buchman asked Hunick how old lie was, and upon being informed that Hunick was almost ON, he told Hunick that he would soon be able to retire and asked him if the union would pay him a pension. He pointed out that the respondents had paid some of its old employees pensions Shortly after the conversation Hunick resigned from his union. Buchman substantially corroborated Hunick's testimony, but denied that he had any intention of inducing Hunick to resign. He explained that he was merely contrasting the policies of the respondents in'respect to pensions with that of labor organizations in general. The logical effect of such an unfavorable contrast upon a man approaching the end of his laboring life is illustrated by the fact that Hunick resigned from his union, shortly after his conversation with Buchman Employee Irvin Lovelett, a member of the C. I. 0., testified that in June 1941 he had a conversation with Tom Wilson, shovel foreman. Lovelett's testimony, corroborated by Wilson, was that Wilson asked him how long he had been working and then asked him why he was still an extra pitman, stating that he should have been a regular pitman by that time. Lovelett replied that he did not know why he had not been made a regular pitman. Wilson then inquired of L. F. Pett, general mine foreman, if there was any reason why Lovelett was not made a regular pitman. Lovelett and Wilson disagreed as to what Wilson reported to Lovelett following the inquiry of I'ett Lovelett testified that Wilson reported to him that the reason given by Pett for his failure to receive a better job was that he had engaged in some union activity on the "hill," '0 and that Wilson advised him to go and tell Garrity, then assistant mine superintendent, that he did not belong to the Union and see if he could not get a better job that way. Wilson's version was that Lovelett in the subsequent conversation asked him if his membership in the Union had anything to do with his not getting a promotion, and that he said he had never heard of anything like that on the hill On his direct examination Wilson was not asked about advising Lovelett to see Garrity, or what was said in that regard. On cross-examination he admitted that he had advised Lovelett to go see Garrity. If, as Wilson testified, he had told Lovelett that Pett assured him Lovelett's promotion would go through with the rest of them in the proper order, there would be no necessity for advising Lovelett to see Garrity. The undersigned is of the opinion and finds that Wilson advised Lovelett to see Garrity, tell him that he was not a member of the Union, and see if he could not obtain a regular pitman's job in that way The president of the I. B E W of the A. F. of L at the Mine, L. L Stock, testified that in August or September 1941 he asked Mitchell, assistant chief electrician, for a transfer to the repair car and that Mitchell advised him that he could not obtain the transfer because he was considered a radical organizer. In 1936 or 1937 Stock had been president of the C. I 0 Stock's testimony was undenied as the respondents did not call Mitchell to testify concerning the inci- dent. The undersigned finds that Mitchell made the statement as related by Stock. In the last part of September 1941 employee Eli Thomas was transferred from the position of switch tender back to the track gang. Thomas testified that he asked Clarence Bullock, section foreman, why he was being transferred and that Bullock said it was because Barlow, general, track foreman and Bullock's "The respondents' mine in Bingham Canyon is often so designated in the recoi d 513024-43-vol. 47-50 786 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD superior, had seen a button on his hat At the time Thomas was wearing a C. I. 0 button on his hat . Bullock said he did not recall making the statement to Thomas He did not testify as to what he told Thomas at the time of the transfer . Barlow testified that Thomas was transferred for other reasons , but admitted that'he was put back on his job as switchtender after representatives of the Board inves- tigated his case. Under the circumstances the undersigned credits the testimony of Thomas and finds that Bullock made the statement as related by Thomas. In September 1941 Bullock also spoke to employee Harvey Blackett about the unions at the mine . Blackett had been active in both the C I 0 and the A. F. of L . According to Blackett , when he asked Bullock the reason for his transfer from the job of track walker back to the track gang, Bullock replied that as long as the fellows negotiated with different unions , worked with different unions, and tried to get them into the Utah Copper, they would never get anything better The conversation took place in the presence of the whole number 3 gang Bullock denied the statement but gave a version of a conversation he had with Blackett . He testified that he came upon Blackett and four or five other employees standing in a group arguing at a time when there was no room on the dump to -dump waste trains. Blackett's foreman was present and was trying to get the dump clear. According to Bullock , he went up to the men in the group. and said, "Union or no union , we have got to get room here, let's get these trains a moving." Although specifically asked by his counsel whether Blackett men- tioned the union , Bullock stated that was all of the conversation . He also testi- fied that he did not hear what the men were arguing about . He did not recall the names of the other men with Blackett. On cross-examination he contradicted his prior testimony by saying that Blackett did mention that he was talking about the Union The undersigned credits Blackett 's version of the conversation Employee Wallace Wood testified that in the latter part of September 1941, M. R. Marshall , track foreman, told Wood and two other employees that there were too many unions on the hill , that the C. I 0 did not have a chance because the'Mine Association had the majority of the hill, that he could not see how so many unions could possibly work, and that the Mine Association was the union that was doing the most good Marshall substantially corroborated the testimony of Wood. With respect to what was said in the conversation Marshall 'testified as follows, " . . . the remark was made that was quite a lot of fellows joining the C. I. 0 at that time, and I say, well , I couldn 't understand why they'd want to join the C. I. 0, why didn't they join the Independent Union and affiliate with the Independent Union already recognized at the Arthur and Magna Mills, or better still, join the A F. of L and be affiliated with the Brotherhood there on the hill." Whichever version be accepted the coercive nature of the statements is clear. The undersigned finds that Marshall made the statements as outlined by Wood. a In November 1941 all the employees in the number 2 trace gang , about 18 in number, put on C. I . O. buttons during the lunch hour and returned to work wearing them Employee Paul M. Lantz testified that when Simonson, gang boss, saw the buttons he became incensed and told the men, "Take those God damn badges off if you want to live on this hill. Put them in your pocket and leave them there." Then after a pause he added, "You have let some of the older fellows lead you into something you don 't know anything about." According to Lantz, all of the men except himself removed the buttons Lantz's testimony was corroborated by employee Ralph Astorga who was a member of the gang at that time. Simonson denied that he made the above statements He said that he told some of the newer men in the gang who were wearing buttons to watch the other men, and if the older men in the gang took off their buttons for them UTAH COPPER COMPANY, A CORPORATION 787 i to do likewise ' Simonson's milder version of the conversation was corroborated by two employees called by the respondents who followed Simonson on the stand. ,Each testified that while on Simonson's gang he dropped his membership in the C. I O. and joined the Mme Association ; one admitted that he received his Mine Association button from Simonson, and stated that he concluded from Simonson's expressions about unions that Simonson did not like the C I 0 and thought the Mine Association would be a better union for the employees Simonson testi- fied that the older men were in the practice of removing their buttons when any of the gang foremen came along and he gave the new men the advice in an attempt to protect them He was unable to explain why or from what the new men needed protection and he was unable to name any of the men to whom he had given such advice In view of Simonson's inability to exphiin why lie gave such advice and his inability to name the men to whom he gave it, the undersigned credits the testimony of Lantz and Astorga. Astorga testified without contradiction and the undersigned finds, that shortly after Simonson told the C. I. O. men to take off their buttons, some of the employees began to wear Mine Association buttons, and to the wearers of such buttons Simonson said nothing. Lantz testified without contradiction that on another occasion Simonson told him, "If CIO ever gains recognition on the hill, I will quit my job." The undersigned finds that Simonson made the statement. Lantz further testified also without contradiction that during the entire course of his employment with the respondents from July 1940 to March 1942, Simonson warned him and other employees that if the C. I. O. were allowed on the hill the employees would lose their privileges. Employee O'Keefe also testified to Simonson's anti-C. I. O. attitude. While working in Simonson's gang, Lantz observed Boyd Nerdin, trustee of the Mine Association, soliciting the employees to withdraw from the C. I. 0 -and to join the Mine Association during working hours. He testified that Nerdin spent most of his time while running the bulldozer for the number 2 gang from November 1941 to March 1942 doing that and that it went on while Simonson was around. In December 1941, according to Lantz, Simonson asked him how many members he had gained for the C. I. O. Lantz told him two or three. Simonson then replied, "Well, you will have to hurry up. Boyd Nerdni is signing them out faster than you could sign them in," and concluded with the statement that Boyd Nerdin was gaining more ground than the C. I. 0 Simonson testified that he did not think he made the above statements He testified that he did have a somewhat similar conversation ; that Lantz told him that lie just about made his groceries for the past month by signing men up in the C I. 0 , and that his reply was that as long as Lantz had competition-one signing them out and the other signing them in, lie could make a good living Simonson did not deny that he had knowledge of Nerdml's activities in behalf of the Mine.Association in his gang, and he admitted that he had passed out one and maybe more Mine Association buttons. In view of these .facts,.togetlier with'the fact that Simonson did not deny other anti-union statements attributed to him, the undersigned finds that lie had knowledge of Nerdin's activities in behalf of the Mine Association (luring working hours, and did nothing to stop them, also that he made the statements regarding Nerdin's activities as related by Lantz L. G. Ostler, president of the A. F. of L. operating engineers at the mine, testified that on November 24, 1941, J. A. Whitely, assistant general foreman, said to him in the presence of a number of other employees, "Say, Link, when are you going to get out of that union you're in and get into the Independent and help things along around here?" Whitely both denied and said he could not remember making the statement. His memory, however, was demonstrably not very good. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He testified that he had never received any instructions either written or oral as to how he should act in regard to the employees' union activities Later when his memory was refreshed, lie recalled having received a letter of instructions in that regard from Buchman, and recalled hiiding seen notices containing such instructions posted The undersigned is of the opinion and finds that Ostler's testimony is more credible In November 1941 Buchman accompanied by Garrity, mine 'superintendent, stopped and talked to the number 19 track gang during working hours Employee Wallace Reed Walker testified that Buchman told the gang that they were all free to join the unions they wanted to join, but if the boys were all joining unions there must be something wrong with the respondents, and if there was he would like to know and get it straightened out. Several of the employees enumerated some changes they thought desirable Buchman ignored some of the changes suggested, pointed out that employees of other companies which were organized, such as the underground mines, did not have some of the improvements desired, and then recounted some of the privileges which the respondents extended to the employees Buchman's account of the incident agreed substantially with the above findings. He testified that at the time, lie had just returned to the mine after a trip and on his return he heard rumors of a strike on the hill and other evidences, mentioning as a source of such rumors the loud speaker in Bingham, .which had been installed by the C. I 0. Garrity, mine superintendent, had heard no such rumors as Buchman described. His speech to the gang followed by a few days increased activity on the part of the C. I. 0. at the mine and the sub- mission by that organization of the largest check-off list it had ever turned in. During his testimony he exhibited a ready knowledge of the affiliations of the different employees through the lists submitted by the different organizations for the check-off and mentioned the track gangs and the powder gang as the places where the C. I 0. had the greatest strength Walker testified that before Buchmnan's speech' to the number 19 gang about three-quarters of the 20 to 22 employees in the gang were members of the C. I. 0., but that after his talk all but about 3 resigned from the C. I 0. Walker testified that about a week after Buchman spoke to the number 19 gang, be got on the pay car wearing his C I. 0. button and meet Buchman Buchman asked him a number of questions and finally said, "Well, what's your gripe?" referring to the C. I. 0 button. Walker told Buchman that he had no complaint to make. Buchman did not recall the conversation. Since the tenor of the conversation is the same as that of the conversation with the number 19 gang, which Buchman admitted, the undersigned credits Walker's testimony and finds that the conversation occurred as lie stated. In January 1942 ,employee Ernest Corona who was wearing quite a number of C. I 0 buttons met Buchman on the pay car. Corona testified that Buchman told him that he was pretty young to join the Union. Buchman testified that he told Corona that was pretty young to wear so many buttons. Considering Buchmari's testimony as a whole, the undersigned believes Corona's version the more probable and credits it. In February 1942 employee William M. O'Keefe, an active C I. 0. member, went to Superintendent Garrity's office to see about a transfer. Buchman, who was in the office adjoining, testified that he called in to O'Keefe and asked him what he thought that the C. I 0 could get for the employees that they were not already enjoying. O'Keefe replied that the Union was instrumental in getting the 40-hour week, which resulted in one day at time and a half in the 48-hour week they were then working Buchman testified that he told him that he was not so sure about that, that the 40-hour week was put into effect through legislation and -added, "Utah Copper Company had been working 48 hours while a lot of the or- UTAH COPPER COMPANY, A CORPORATION 789 ganized underground mines ate only working 40 hours " Buchman stated that he also pointed out to O'Keefe the fact that the respondents were paying higher wages than the underground mines and had a better vacation plan. The under- ground mines were organized by the C. I. O. Bert Gill, who worked at the mine and was financial secretary of the Interna- itonal Association of Machinists, A. F. of L, applied to Buchman in February 1942 for one of the respondents' houses. Buchman told him that no houses were available. According to Gill, Buchman then said, "why don't you see Bill Green, see if he has any $10,000, $25,000 houses he'll rent for $25.00 a month " Bachman admitted that he asked Gill why Bill Green of the A. F. of L did not use union funds to build houses for the employees, pointing out that some other unions (lid. In any event, whether Buchman contrasted the practice of Gill's union with that of the respondents in regard to the building of houses,,as Gill testified, or whether he contrasted it with other unions as well, as he testified. it is clear that the respondents did not suffer by the contrast As in the case of Hunick, Buchman pointedly indicated that the employees could expect more from the respondents than they could from their unions. Buchman testified that lie was notified by Moffat on June 14, 1942, that a pay raise would be put in effect on June 16. He called the Aline Committee together to announce the raise and enumerated to them the reasons for the granting of the increase. As one of the factors leading to the granting of the raise, he listed the efforts of the Diill Association He was then asked by respondents' counsel: But your reference to the Independent Association of Mill workers by that did-you have in mind giving them credit, even remotely for the increase; did you mean to assist in their organizational activity? Buchman answered : Yes, sir, I (lid, because they made a very strenuous (sic) for a wage increase, and when the wage scale is announced at one plant, it is uniform for the en- tire plant Some idea of the esteem with which Buchman regarded the Mine Committee, upon the basis of whose recognition lie refused to meet for the handling of griev- ances with other organizations, can be gained from the above incident Although he called the Mine Committee together to announce the increase, and although the Mine Committee had itself requested an increase according to Buchman, Buchman gave credit for the increase to the Mill Association. Bill H. Adkinson was general night power foreman at the mine in May and June 1940. Employee Elden Osborne, a member of the C. I. 0 who had been active in soliciting for ineinbers in 4lie Union was employed in one of the gangs which came under Adkinson's supervision. According to Osborne, Adkinson charged him with organizing for the C I.O during working hours. Osborne denied this and asked Adkinson who had given him such information. Adkinson then became quite angry, Osborne testified, and refused to give the source of his information and finally made an obscene remark about Osborne and the C. I O. At the hear- ing Osborne testified that he had done no organizing during working hours, although lie had signed men up at the mine before working hours. Evankovich, a drilling and blasting foreman, and Osborne's immediate superior, testified that lie had never observed Osborne do any organizing on company time. Adkinson was not called to testify nor was it shown that he was unavailable. Evankovich testified that Tony Lepore complained to him that Osborne was bothering him about the C. I. 0, that he reported this to Adkinson, and Adkinson then repri- manded Osborne. Tony Lepore denied that he had ever complained to Evanko- vich about Osborne, on the contrary, lie testified that Evankovich told him to 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD keep out of the C I. 0 Evankovich did not deny that Adkinson made the indecent remark about Osborne and the C I. O. The undersigned is of the opinion inds that the conversation occurred as related by Osborne, aud,Adkinson and f spoke to Osborne for the purpose of discouraging his activity in behalf of the C.I.O. Dale S Rossiter, gang boss, admitted that in September or October 1941 he stated to employee David R Brown, a member of the C I 0., "Well, Wood-is just another old agitator like yourself." Wood was a member of the C. I O , who prior to that time had been demoted-the Union alleged because of union activity, the respondents because of unsafe operation of machines Wood had been re- instated to his former position after investigation by the Board. Rossiter denied that his remark had any reference to union activity and explained that he only meant that Brown talked with the employees and kept them from their work as Wood did In view of the facts regarding Wood's case, the undersigned finds Rossiter's explanation unconvincing. Brown testified without contradiction and the undersigned finds, that about the time ofWood's demotion, Rossiter remarked to the number 5 gang, which at that time was composed almost entirely of C. I. O. members, that if they kept wearing C. I 0 buttons or soliciting members they too would get in trouble About the same-time,. according to employee William M. O'Keefe, Rossiter stated to him that everyone knew that Wallace Wood was demoted because lie was signing men up in the C I 0 and not because lie could not handle his job Rossiter both denied making the remark and stated that lie did not recall doing so. The undersigned was particularly impressed with O'Keefe's honesty as a witness, and as noted above found some of Rossiter's testimony improbable The undersigned finds that Rossiter made the remark to O'Keefe The respondents' mine superintendent is Harvey L Garrity. Both he and employee Ross Linn testified that Garrity had a conversation regarding the C. I 0 in Februaiy 1942 with Linn and Bob Shore, another employee Linn testi- fied that Garrity came up,to him and Shore while they were at work and asked if they would do anything that would cause them to lose their jobs. They assured him they would not. After Garrity questioned them further about their work, they asked him what the purpose of the questioning was According to Linn, Garrity replied, "Well, you fellows know what I'm talking about, but I'll tell you. It's come to me that you fellows are organizing in the CIO, and you know we don't want any organizing on the hill " Both Linn and Shore denied that they had done any organizing Linn testified further that Garrity evidenced his dis- belief, and repeated, "Now we don't want any organizing on the hill; and we don't like organizers on the hill;" and concluded with the statement that, "You can rest assured that when promotion time cones I will remember your names." Garrity testified that he told Linn and Shore that he did not want any organizing on company time nor on the hill. The latter statement covers the men's own time on,the hill as well as company time, and corroborates Linn's version of the con- versation. Garrity did not deny that he told Linn that the company did not)like organizers on the hill or that he suggested to Linn and Shore that they might lose their jobs Garrity named Foreman Joe Dunn as the source of his informa- tion that Linn and Shore were doing organizing work It may be presumed that activity which evoked a reprimand and threat of discharge from the mine super- intendent would be both flagrant and wide-spread, yet neither Dunn, Garrity's informant, nor any other employee was called to show that Linn and Shore had engaged in organization either during working hours, of during their own time on the hill In its prior decision the Board found that Garrity had manifested an anti-C I. 0 attitude and had advised an employee to remain out of the C I. O. I UTAH COPPER COMPANY, A CORPORATION 791' In view of these facts, the Examiner credits the testimony of Linn, and finds that- Garrity' made the statements attributed to him by Linn' Shortly after Giirrity reprimanded Shore and Linn, Foreman Joe Dunn spoke to.employee O'Keefe about the incident O'Keefe testified without contradiction and the undersigned finds, that Dunn warned O'Keefe about talking about the C. I. 0., and referred to the reprimand given Linn and Shore by Garrity. That Dunn included in his warning O'Keefe's own time on the job in addition to com- pany time, as Garrity had done, is shown by the fact that O'Keefe replied that his lunch time was his own and the respondents could not prevent him from talking about the C. I O. during that time M. The original check-off request of the Union On the 29th of September 1939 the Union submitted to the respondents a request that it deduct from the pay of 121 employees the amount of $2.50 and forward such money to the secretary of the Union. The request was accompanied by a list of, the names of the employees together- with assignments signed by such em- ployees authorizing the deduction from their pay. Several days later all em- ployees who had,.signed the assignments were directed to report to.Buchman's office the next morning before going to work. No explanation was given for such direction. The following morning the employees assembled at Buchman's office and were directed to file through the office where Buchman questioned each man about the assignment. Shortly after the men commenced to file through the office, H A. Davis, International Representative of the Union, appeared at the office, requested and was granted permission to observe the process. He, Max Tassainer, Secretary of the union local, and George Conish, president of the local, remained in the office while the men were questioned The testimony was in conflict as to whether Buchman questioned the men in a stern manner. From the subsequent actions of the men, the undersigned finds that he did. The testi- mony is also conflicting as to whether Buchman merely asked the men whether they had signed the assignments, or whether he asked additional questions as to where tliey signed such cards, and whether they were sure that the signatures were their own. Conish and Tassainer, who were called as witnesses by the re- spondents, testified that he merely asked the men whether they had signed. Buchman- himself testified that lie asked the men additional questions. After the questioning had been completed, the employees who had been questioned gathered around Tassainer and asked him in effect whether they were, discharged. Tassainer told them to go to work. Tassauter testified that he was unable to understand where the employees got the idea that they were discharged because of-what happened in the office. However, within several days after the question- ing in Buchman's office, Tassainer decided to resign as secretary of the local and from the Union as well Before the respondents made the deduction he had authorized, he withdrew the authorization. George. Conish also, resigned front, his office as president of the local and from the Union within less than a month from the time of the questioning in Buchman's office The respondents' treatment of the Union's request for pay roll deduction of dues is to be contrasted with their treatment of the, Mine Association's request. In October 1941 the Mine Association also submitted a request that the respondents deduct its dues from the employees' pay checks. With the request it submitted a number of applications for membership in the Mine Association. Unlike the authorizations submitted by the Union, which specifically authorized the pay- roll deductions requested on their face, the applications for membership in the 792 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD Mine Association made no mention of assignment of wages" Upon receipt of the request for the pay-roll deduction, Buchman instead of calling in the iiidivid- ual signers, called in Williams and asked for the authority of the Mine Associa- tion to request the deductions Williams pointed to a statement on the applica- tions that the signer agreed to abide by the constitution and by-laws of the Mine Association and indicated a provision in the constitution which he supplied authorizing such deduction. Without calling in the individual signers for verifictition the respondents then made the deductions requested. Buchman gave several reasons for this difference in treatment. He said the Union's request was the first he received. However, it was not the first such request disposed of by Moffat, who had received and granted a like request of the Mill Association the year before without personal verification of signa- tures; and Buchman himself testified that before requiring personal verification- of signatures, and on the union assignments, lie conferred with Moffat, and was directed to have the verification made. He also said that when the Mine Associa- tion request was made, since the deductions had already been made for the Union, he was not so-concerned. Some of the names on the list submitted with the union request were mis- spelled, Buchman explained, and some were marked with an "X." He did not explain how this made it necessary to call in every employee who had signed a union assignment, some of whose signatures were legible. In any event, the identity of the employees was not so concealed by the misspelling that Buchman was not able to call them in for questioning. Had the verification been made as it was in the cases of the Mine and Mill Association, it may be presumed that the signatures on the assignments would have been used for purposes of com- parison rather than the names on the list In the case of both the Mine and the Mill Association the applications for membership submitted with the request for pay-roll deduction of dues did not on their face constitute assignments, and did so only when read in conjunction with the constitutions of those organiza- tions. , A careful man might desire to make some inquiry in such case to deter- mine whether the signer knew of the provisions in the constitution and was aware of the fact that he was making an assignment of his wages when he signed an application which on its face merely purported to apply for member- ship, especially in view of the fact that some of the applications submitted were dated in 1938, 3 years before the request was made. Thus, when the Union requested pay-roll deductions, it was ignored as an organization by the respondents who by-passed it and treated with its members individually, when the two Associations made such a request, they were treated as organizations by the respondents who called in and dealt with their officers alone; when the Union requested the deductions, personal verification of author- ity was required ; when the two unaffiliated Associations requested pay-roll deductions, something less than personal verification was sufficient. The under- signed finds Buchman's explanation for the difference in treatment unconvincing and finds that he called the union members in for questioning regarding their assignments of dues for the purpose of intimidating them with regard to their right to self-organization and of discouraging membership in the Union. That this'was the effect of his net is clear, as revealed in the queries of the men as to whether they should "go home." In December 1941 the C. 10. submitted to the respondents a number of appli- cation cards bearing the identical provisions appearing on the application cards of the Mill Association and the Mine Association submitted by those organiza- ii These Mine Association applications merely contained a statement that the signer agreed to abide by the constitution and by-laws of the Mine Association. UTAH COPPER COMPANY, A CORPORATION 793 tions; as the basis of their requests for pay-roll deduction of dues. Upon the basis of such application cards the C. I. 0. requested pay-roll deduction of dues. The respondents did not call in the president of the C. I. O. to ascertain the authority for such deductions as they did in the case of the Mine Association, 'they simply refused to honor the request. By such difference in treatment the respondents reaffirmed their preference for the Mine Association as opposed to the C. I. 0. N. The respondents' treatment of the C I 0, the A. F of L and the Mine Asso- cnation ii4th reference to the liandling of gi ievanees Buchman testified that the respondents' policy , that they would not recognize any union as the bargaining agent until so certified, had been firmly maintained He admitted that the Mine Committee had never been certified as bargaining agent. As noted hereinbefore at the time of the hearing the respondents were meeting and dealing with the Mine Committee as the representative of the mine employees Some of the other organizations at the mines attempted to handle grievances for their members or to -confer with Buchman. On December 23, 1941 , a delegation from the International Union of Operating Engineers, Local 353 , A F of L , waited on Buchman and offered their services in putting into effect a program for purchase of war bonds through payroll deductions Buchman advised the delegation that the respondents had already taken the necessary steps According to employee Hibbard, who was a member of the union delegation , Buchman advised the delegation that they must stay out of the office it they represented a labor organization , but if they had griev- ances they could take them up as individuals Buchman testified that he made the following statement to Hibbard in this regard, "I am always glad to discuss matters with individual employees but as representatives of an unrecognized bargaining agent , I cannot do that" By the above statement it is clear that Buchman advised the delegation that he would not meet with the representatives of any labor organization, but would deal with the members of the organization as individuals A possible construc- tion , however , is that Buchman meant that while he would not meet with such representatives in their official capacity , he would meet with them in their individual capacity i epresent ing other employees That such a construction is unjustified is shown by his treatment of the request to meet and handle grievances presented by members of the C I. 0 On February 9, 1942, the Union wrote Buchman a letter requesting a con- ference for the purpose of discussing methods of increasing the output of copper An furtherance of the war effort. Buchman replied , "We are experiencing no production difficulties and anticipate none." On February 21, 5 members of the C I . 0 , describing themselves as employees of the respondents , sent a -letter to Buchman on Union stationery requesting a conference for the purpose of discussing grievances Buchman made no written reply Instead he advised Irvin T Lovelett , one of the signers of the letter, individually as follows, "I will not meet anybody that has organized a union- unless they have the bargaining power, but I will meet the person individually himself that has a grievance" On March 4 , the Union wrote a letter to Moffat outlining their efforts to meet with Buchman , and asked for a conference for the purpose of discussing a pro- gram leading to increased production in the war effort By letter dated March 9, Moffat reiterated Buchman's answers that the respondents were experiencing no production difficulties, and that the respondents would meet and discuss 794 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD grievances with their employees, but would not meet with the Union as repre- sentative of anyone Finally on March 20 the sane 5 members of the Union who had written Buchman on February 21, wrote Buchman another letter requesting a confer- ence for the purpose of discussing grievances The letter recited the fact that they had applied for a confeience on February 21 merely as employees and then with reference to the present request stated : Let's be clear-we are asking to meet you as employees, representing no one but ourselves. We desire to meet with you at 5 p. in. or later on the earliest afternoon convenient to you. Buchman never replied to this request While Buchman and Moffat thus refused to meet and discuss grievances with representatives of the A F of L and the C. I 0 in either their official or indi- vidual capacity, Buchntan's treatment of Williams, president of the Mine Asso- ciation, was quite different Buchman testified that he informed Williams that as a fellow employee he would be glad to hear him, or whomever he brought with him, but not as a representative of the Mine Association He thus invited Williams to do the very thing he refused the representatives of the C. I. O. and the A F. of L. And Williams availed himself of the opportunity On May 24 and 25, 1942, lie caused to be distributed' to the employees at the mine a bulletin purporting to be a letter from himself to the organizing committee of\the Mine Association which contained the following : ,It has been my privilege to settle a number of grievances for our members and it is my sincere wish that I may be allowed to continue to cooperate with members of the Independent Union in improving their working conditions. In the bulletin, Williams also claimed that the Mine Association had settled more grievances to the advantage of its members than any other labor organization in the history of the respondents At the hearing, he admitted this statement was untrue Williams 'testified that on two occasions that he remembered he had represented other employees in the handling of grievances with Buchman. While it may be true, as both Buchman and Williams testified, that Buchman advised Williams that he was meeting with him in his individual capacity on such occasions, this was a privilege denied to representatves of the A. F of L and the C. I. 0., and to the employees at large there was no announcement that Buchman was meeting with Williams, the individual, rather than Williams, the president of the Mine Association. As noted above in the bulletin, Williams advised the employees that Buchman met with him as the president of the Mine Association, contrary to his testimony at the hearing 0 Mine timekeepers Counsel fom the Board contended that the respondents' timekeepers at the mine were in the same category as supervisory employees, and that the respond- ents were therefore responsible for their activities without the showing of knowl- edge of, or acquiescence in, such activities. The record shows that the time- keepers were 13 in number, that they worked out of the mine office ; that their duties consisted of checking the presence of the men on the job,'and reporting that to the, office ; that they had several days of office work during a month ; that they carried communications from the office to the mbn, and from the men to the office ; and that they do not direct or supervise the work of other em- ployees The record contains uncontradicted and credible testimony that they did actively during working hours work for the,Mine Association and against t UTAH COPPER COMPANY, A CORPORATION 795 the C. I. 0 However, the undersigned finds the above facts insufficient to sup- port the contention that the respondents are chargeable with such acts P Conclusions iegaldnig domination of the Mine Association; sliterfetence, restraint, and coercion. . By advising employees that they would be more likely to receive promotions if they resigned from the Union; by questioning'employees about their member- ship in the Union, and holding them up to ridicule because of such membership; by advising employees to resign from the Union; by directing employees to re- move their C I. 0 buttons ; by telling employees that they were demoted because of their membership in the Union, or activities in behalf of the Union; by telling employees that the Union was not doing them any good; by reminding elderly employees of their advanced age, and then advising them that the respondents paid pensions and unions did not; by advising employees that they could not -obtain transfers because of union activity ; by telling employees that they were transferred to less desirable jobs because they wore C. I 0 buttons, or were active in the Union ; by saying that the Union did not have a chance on the bill because the Mine Association had a majority; by telling employees that they ,would lose their privileges if the Union were allowed on the hill; by advising employees to get out of the A F of L and into the Mine Association ; by pointing out to employees unfavorable comparisons between the respondents' wages and working conditions and those of the mines already organized by the Union; by asking members of the Union what advantages the Union could get them that the respondents were not already gibing them ; by asking members of the A. F., of L. why "Bill" Green did not build houses for them when they asked to rent houses owned by the respondents, by making obscene remarks about the Union and its members ; by referring to members of the Union as "agitators"; by threat- ening members of the Union with discharge or loss of promotion if they did not cease their activity in behalt of the Union; by requiring personal verification of wage assignments for the Union in a manner designed to intimidate its mem- bers, and not requiring such verification of wage assignments for the Mine Asso- ciation; by permitting the Mine Association president'to handle grievances with the respondents for its members and denying a like privilege to officers of the A F of L. and the C. I. 0 , by urging employees to join the Mine Association ; by advising the employees that the Mine Association was doing the most good for the employees; by permitting officers and members of the Mine Association to engage in activities in behalf of the Mine Association during working hours and denying this privilege to in of the C. I O. and the A. F of L.; by crediting a raise in pay to the Mill Association, whicli•is closely allied with the Mine Asso- ciation, and by distributing Mine' Association buttons to its employees, the re- spondents have discouraged membership in the C. I. O. and the A. F. of L. By the foregoing acts the respondents have dominated and-interfered with the admin- istration of the Mine Association and contributed financial and other support to it, thereby interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Consideration of the factual situation at the mine as reflected in the record shows that the Mine Committee does not present the live issue at the present time The respondents offered no testimony in support of their denial that the Mine Committee was company-dominated, and the record is noticeably barren of evidence of the respondents' actively urging its-employees to adhere to the Mine Committee. The live issue at the mine so far as the respondents are con- cerned is the Mine Association That is the organization which the respond- ents currently aro supporting by the acts enumerated above The Mine Com,- 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee is at the present time used by the respondents as a stalking horse to fore- stall advances,by the C. I 0 and the A. F. of L., and the respondents more or less perfunctorily go through the motions of recognizing that organization. This is most pointedly demonstrated.by the announcement of the respondents' most recent pay raise. Buchman called together the representatives of the Mine Com- mittee to announce the raise, but to the representatives he credited the raise to the efforts of the Mill Association-which is closely allied with the Mine Asso- ciation. In fact, as far back as October 1941 the Mine Association approved affiliation with the Mill Association, and announced in its paper, "We are going to be affiliated with The Independent Association of Mill Workers." From the acts of support and aid listed above it is apparent that the respondents are grooming the Mine Association to take the place of the Mine Committee, as they groomed the Mill Association to take the place of the Committee, the Mine Com- mittee's counterpart, at the mills. % For a period in'excess of 20 years the respondents have been selecting the labor organization to which their employees shall belong. So far, the employees' only choice has been between an organization which the respondents manifestly and actively oppose, or one which they manifestly and actively support. That is not the free choice envisaged by the Act. The Mine Association has been sup- ported acid aided by the respondents. In order that the policies of the Act may be effectuated, and that the employees may have the free choice which the Act contemplates, it is necessary not only that the respondents cease and desist from their acts of opposition to the Union and the A. F. of L, and from their acts of support and aid to the Mine Association, but that they refrain from recognizing the Mine Association and completely disestablish it as collective bargaining rep- resentative of any of their employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents described in Section I above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several states and, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor prac- tices, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate ,the policies of the Act. It has been found that the respondents dominated and interfered with the formation and administration of the Employees General Committee, The Inde- pendent Association of Mine Workers and The Independent Association of Mill Workers and have contributed financial and other support to these organizations. The undersigned is convinced and finds that these organizations are incapable of serving the respondents' employees as bona fide representatives for the pur- poses of collective bargaining, that the effects and consequences of the repsond- ents' domination of, interference with, and support of these organizations, as well as the continued recognition 32 by the respondents of these organizations as bargaining representatives for the respondents' employees constitute con- 92 The recognition accorded the Mine Association by Buchman in the handling of griev- ances, and the request for the check-off is not the exclusive recognition granted to the Mill Association It is this limited recognition, denied to other organizations at the mine, to which reference is here made. UTAIi COPPER COMPANY A CORPORATION 797 tinning obstacles to the free exercise by the employees of their right to self- organization and to bargain collectively through representatives of their own choosing. Accordingly, the undersigned will recommend that the respondents withdraw all recognition from and completely disestablish the Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers as representatives of any of their employees for the purposes of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of 'employment. The undersigned is convinced and finds that the check-off of dues for The Independent Association of Mine Workers and The Independent Association of Mill Workers by the respondents, from the wages of their employees is a part of the ,respondents' assistance to, and support of, these organizations. Such deductions for the benefit of dominated labor organizations may not, even in those cases in which authorization was given therefor, be regarded as voluntary on the part of the employees affected. In order to restore the status quo in this respect, it shall be recommended that the respondents reimburse their employees for all amounts deducted from their wages as fees and dues for the above named organizations. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the undersigned makes the following: CONCLUSIONS OF LAW. 1. International Union of Mine, Mill and Smelter Workers, C I. 0., Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Hill Workers, are labor organizations within the meaning of Section 2 (5) of the Act. 2 By dominating and interfering with the formation and administration of Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers, and by contributing financial and other support to them, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondents, their agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administration of the Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers, and with the formation or administration of any labor organization of their employees and from con- tributing financial and other support to the Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers and to any other labor organization of their employees; 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Recognizing the Employees' General Committee, The Independent Associa- tion of Mine Workers, and The Independent Association of Mill Workers as representatives of any of their employees for the purposes of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment ; or any other conditions of employment ; (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of'the Act : (a) Withdraw-all recognition from and completely disestablish the Employees' General Committee, The Independent Association of Mine Workers, and The Independent Association of Mill Workers as representatives of any of their employees for the purposes of dealing with the respondents concerning griev- ances, labor disputes, rates of pay, wages, hours of employment, or other con- ditions of employment; (b) Reimburse all of their employees for any and all fees and dues which were checked off by the respondents from the wages of their employees in the manner set forth in the section of this report entitled "The remedy" above ; (c)' Post immediately in conspicuous places throughout their mine and mills in Bingham Canyon, Arthur and Magna, Salt Lake County, Utah, respectively, and maintain for a period of not less than sixty (60) consecutive days from the time of posting notices to their employees stating: (1) that the respondents, will not engage in the conduct from which it is recommended that they cease and desist in paragraph 1 (a), (b) and (c) of these recommendations; (2) that the respondents will take the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations; and that their employees are free to become or remain members of the International Union of Mine, Mill and Smelter Workers, C. I. 0., or any affiliate of the A. F. of L., and that they will not discriminate against any employee because of membership or activity in said labor organizations; (d) File with the Regional Director for the 22nd Region within twenty (20) consecutive clays from the receipt of this Intermediate Report a report in writ- ing setting forth in detail the manner and form in which the respondents have complied with the foregoing- recommendations. It is further recommended that unless on or before twenty (20)' days from the receipt of this Intermediate Report the respondents notify the Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National.Labor Relations Board, Series 2-as, amended-any party may within thirty (30) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said rules and Regulations, file with the Board, Shoreham Building, Washington, D C, an original and four copies of a statement in writing setting forth such exceptions'to the Intermediate Report or to any other part of the record or proceedings (including rulings upon all motions or objections) as he relies upon, together with the original and UTAH COPPER COMPANY) A CORPORATION 799 four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board 'within twenty (20) days after the date of the order transferring the case to the Board. , Dated : September 29, 1942. d FRANK A. MOURITSEN, Trial Examiner. 1 J I