Nevada Consolidated Copper Corp.

In the Matter of NEVADA CONSOLIDATED COPPER' CORPORATION and INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS In the Matter of SANTA RITA STORE CORPORATION (NO STOCK- HOLDER'S LIABILITY), SUCCESSOR IN INTEREST TO SANTA RITA STORE COMPANY, AND KENNECOTT COPPER CORPORATION and INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS Cases Nos. C-1052 and C-1447.-Decided August ,24, 1940 Jurisdiction : copper mining industry. Unfair Labor Practices Discrimination: refusal to hire former employees because of actual or supposed union membership and activity-refusal to hire new applicants because of relationship to a union member-charges of discrimination as to 32 persons, dismissed. Remedial Orders: reinstatement and back pay awarded. Definitions Persons whose employment with respondent ceased as a result of shut-down of mine due to economic conditions in 1934 no longer retained their status as employees at the time the respondent resumed operations in 1937. Mr. Charles A. Graham, Mr. Newell N. Fowler, and Mr. Paul S. S. Kuelthau, for the Board. Wilson and Woodbury, by Messrs. J. F. Woodbury, and Percy Wilson, of Silver City, N. Mex., Mr. C. C. Parsons, of Salt Lake City, Utah, and Mr. H. M. Fennemore, of Phoenix, Ariz., for the respondents. Mr. Allan Lind, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union of Mine, Mill and Smelter Workers, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado), issued its complaint dated April 21, 1938, against Nevada Consoli- dated Copper Corporation, New York City, herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of 26 N. L. R. B., No. 113. 1182 NEVADA CONSOLIDATED COPPER CORPORATION 1183 Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint alleged, in substance, that since on or about January 1, 1937, -the respondent has refused to reinstate or to give employment to certain specified individuals 1 because they had joined and assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection, thereby discouraging membership in the Union and interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 2, 1938, the respondent filed an answer admitting in part and denying in part the allegations of the complaint concerning its business, denying that the alleged unfair labor practices affect com- merce, and further denying that it had engaged in or was engaging in the alleged unfair labor practices. The respondent also filed a separate motion to dismiss the complaint on jurisdictional grounds. Pursuant to notice, a hearing was held in Silver City, New Mexico, from May 2 through May 6, and on June 13, 1938, before Joseph S. Kiernan, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and partici- pated in the hearing. Officials and members of the Union were present and testified, but otherwise the Union did not participate in the hearing. 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 opening of the hearing counsel for the Board by a written motion moved to amend the complaint and the charge to correct the spelling of certain names and to add to the complaint and the charge the names of 30 other individuals as having been discriminated against by the respondent.2 At the same time Board's counsel orally moved to add to the complaint and the charge the names of eight additional individuals 3 and to strike from the complaint and charge the names of four other individuals.' During the course of the hearing Board's counsel also moved to amend the complaint by adding the names of four other persons.' The Trial Examiner granted such motions. The rulings are hereby affirmed. During the course of the hearing I There were 61 persons named in the original complaint. Their names appear in Appendix A. 2 On April 27, 1938, prior to the time this motion was made, Board 's counsel issued a notice of intention to amend the complaint in this respect. Copies of such notice were duly served upon all parties. A list of such persons is hereinafter included in Appendix A. 3 These individuals are also included in Appendix A. 4 Ben Rodriguez, Francisco Ramirez, Nicolas Ramirez, and Jose Orosco. 5 These individuals are also included in Appendix A. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel for the respondent moved to dismiss the complaint on the grounds set forth in its answer. The Trial Examiner denied the motion. This ruling is hereby affirmed. At the conclusion of the hearing Board's counsel moved that the charge and complaint be amended to conform to the proof. The Trial Examiner granted this .motion and extended the ruling to include the respondent's answer. The ruling is hereby affirmed. On July 11, 28, and August 1, 1938, counsel for the Board and counsel for the respondent entered into several stipulations relating to certain errors in the transcript of the record. These stipulations .care hereby made a part of the record. On November 19, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1) and (3) and. Section 2 (6) and (7) of the Act. He recom- mended that the respondent be required to cease and desist from such practices and to offer reinstatement with back pay to 71 persons found to have been discriminatorily discharged and refused employment. He also recommended that the respondent be required to offer immedi- ate employment to 10 named individuals 6 when work of a kind.which they had previously performed or which they could perform became available. The Trial Examiner recommended further that the com- plaint 'be dismissed as to 20 named individuals.' On December 17, .1938, the respondent's exceptions to the Intermediate Report and the various rulings of the Trial Examiner were docketed. On February 28, 1939, the respondent filed a brief in support of its exceptions. On July 25, 1939, the Board, acting pursuant to Article IT, Section 35, of National Labor Relations Board Rules and Regulations- Series 2, ordered that the record in this proceeding be reopened, and remanded the case to the Regional Director, authorizing him to serve notice of a further hearing for the purpose of introducing evidence relating to certain matters excluded by the Trial Examiner and such other evidence as might be relevant to any of the issues in the case. On October 27, 1939, the Union filed charges against Santa Rita Store Company, herein called the Store Company, and -Kennecott Copper Corporation, herein called Kennecott. On November 1, 1939, the Board ordered that the case arising out of the above charges s Julio Grade, Ray Gumfory, Ramond Horcasitas; Maclovis Huerta, Geronimo Jaurigui, Jesus M. Martinez, Pauline Rodriquez, Pedro Saiz, and Gilbert Saenz. Gregorio Arispe was also included in this group. In another part of the Intermediate Report the Trial Examiner inadvertently dismissed the com- plaint as to Arispe. 7 Refugio Apodaca , O. W. Booth , Encarnacion Dominguez , Lee Goetz , Juan Gonzalez , Isaac Greear, Tony Guerro, Robert Hileman, Charles Johnson, Thomas C. Lottriz, Roy Martin, Jose Orosco, Guillermo Placencio, Francisco Ramirez , Nicolas Ramirez, Teodoro Rios, Ben Rodriguez , Ralph Saenz , and Bailey Winsatt. The Trial Examiner inadvertently included Genaro Grijalva in this group. In another part of the Intermediate Report the Trial Examiner ordered Grijalva reinstated with back pay. NEVADA CONSOLIDATED COPPER CORPORATION 1185 be consolidated with the proceeding against the respondent.8 Upon amended charges duly filed by the Union against Kennecott and Santa Rita Store Corporation, herein called the Store Corporation, successor in interest to the Store Company, the Board on November 21, 1939, by the Regional Director, issued its complaint 'against the Store Corporation and Kennecott alleging that they had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act.' Copies of the complaint and accompanying notices of hearing were duly served upon the Store Corporation, Kennecott, the respondent, and the Union. With respect to the unfair labor practices the complaint alleged, in substance, that Kennecott and its agent, the Store Corporation, refused to reinstate and/or reemploy David B. Saenz, a former em- ployee of the Store Company, during December 1936 and January 1937 because of the membership and activity in the Union of persons related to David B. Saenz. On December 6, 1939, Kennecott and the Store Corporation filed a joint answer admitting in part and denying in part the allegations of the complaint concerning their businesses, denying that the alleged unfair labor practices affected commerce, denying that they had engaged in or were engaging in the alleged unfair labor practices, and further denying the jurisdiction of the Board. On the same day they filed a separate motion to dismiss the complaint. Pursuant to notice, a hearing was held upon the consolidated cases on December 7, 1939, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Board, the Store Corporation, Ken- necott, and the respondent appeared by counsel and participated in the hearing. 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 opening of the hearing counsel for the Board moved to amend the complaint against the respondent to add the names of 19 individuals as having been discriminatorily refused reinstatement or employment by the respondent because of their union membership and activity." This motion was granted by the Trial Examiner. The ruling is hereby affirmed. During the course of the hearing and upon motion of counsel for the Board, the Trial Examiner dismissed the complaint against the respondent, without prejudice, as to 13 e The proceeding against the respondent is designated C-1052 ; that against the Store Company and Kennecott as C-1447. 9 On November 29, 1939, the Board issued a new order of consolidation correcting the caption of the pie- vious order or consolidation to name the Store Corporation rather than the Store Company . For our findings with respect to the relationship between the respondent , the Store Corporation , and Kennecott, see Section I, infra. 10 The names of these individuals are included in Appendix A. 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named individuals." At the close of the hearing the respondent made several different motions to dismiss the complaint as to various individuals. The Trial Examiner denied these motions. We affirm his rulings in so far as they are consistent with the findings, con- clusions, and order' hereinafter set forth. During the course of the hearing the Store Corporation and Ken-' necott moved to dismiss the complaint filed against them. The Trial Examiner reserved ruling on their motion. For the reasons set forth below we shall grant the motion. During the course of both hearings the Trial Examiners made other rulings on motions and on objections to the admission of evidence. The Board has reviewed all of the rulings and finds that no prejudicial errors were committed. The rulings, except as modified herein, are hereby affirmed. On January 4, 1940, the Board issued an order vacating and setting aside the Intermediate Report filed in Case No. C-1052. It further ordered, in accordance with Article II, Section 36 (a), of National Labor Relations Board Rules and Regulations-Series 2, that Case No. C-1447 be transferred to and continued before the Board for action pursuant to Article II, Section 37, of said Rules and Regula- tions. The Board also ordered that no Intermediate Report be issued by the Trial Examiner in the further hearing and that, pursuant to Article II, Section 37 (c), of said Rules and Regulations, Proposed Findings of Fact, Proposed Conclusions of Law, and a Proposed Order be issued in the consolidated cases. It further provided that the parties herein should have the right within twenty (20) days from the receipt of said Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board.12 On February 6, 1940, a stipulation entered into between , counsel for the Board and counsel for the respondent, relating to certain errors in the transcript of the record, was docketed. This stipulation is hereby made a part of the record. On June 29, 1940, the Board issued Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order in this proceed- ing, copies of which were duly served upon all parties. Exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and 11 George Byers, Martin Gallegos, William Greer, C. M. Gumfory, O. M. Gumfory, Florencio Heredia, Robert Hileman , E. C. Hill, Julian Juarigui , Roy Martin , Encarnacion Murillo, Jr ., Raymundo Murillo, and Bailey Winsatt. 12 The Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order stated that: The Board's Rules and Regulations-Series 2, as amended , now in effect, provide that the parties may, as a matter of right, file briefs with the Board , and that they shall have thirty (30) days from the date of the Proposed Findings of Fact, Proposed Conclusions of Law , and Proposed Order within which to file such briefs. NEVADA CONSOLIDATED COPPER CORPORATION . 1187 Proposed Order were filed by the respondent and the Union on July 27, 1940. The respondent also requested . that it be afforded an opportunity for oral argument before the Board. On July 29, 1940, the respondent filed a brief in support of its exceptions. Pursuant to notice, oral argument was had before the Board in Washington, D. C., on August 1, 1940. Counsel for the respondent appeared and participated in the argument. The Board has considered the exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order and, in so far as the exceptions are inconsistent with the Findings, Conclu- sions, and Order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE RESPONDENT, KENNECOTT, AND THE STORE CORPORATION Kennecott, a New York 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; 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.13 The present proceedings are concerned with Kennecott's wholly' owned subsidiaries. Nevada Consolidated Copper Corporation and Santa Rita Store Corporation. The Nevada Consolidated Copper Corporation, a Delaware corporation, operates an open-pit copper mine at Santa Rita, New Mexico, and a mill and smelter at Hurley, New Mexico. Santa Rita Store Corporation, a New Mexico corpo- ration, operates and manages two merchandising stores located at Santa Rita and Hurley, New Mexico. The respondent produces copper ore at the Santa Rita mine. All of the ore so produced is shipped to the respondent's mill at Hurley 13 The annual report of Kennecott to the Securities Exchange Commission for the fiscal year ending December 31, 1936, lists the following subsidiaries, with percentages of voting control : Kennecott Sales Corporation , 100 per cent; Copper Houses , Inc., 100 per cent; Chase Brass & Copper Company, Inc., 100 per cent; The Upson Water Company , 100 per cent ; American Brass & Copper Company, 100 per cent; the Waterville Corporation, 100 per cent ; the A. J. Patton Company, 100 per cent; the Great Brook Manufac- turing Co., 6635 per cent ; the Superior Wire Cloth Company, 6631 per cent ; Hallenbeck-Hungerford Realty Company, 50 per cent; Alaska Development and Mineral Company , 100 per cent; Dikdick Exploration Company, Ltd ., 58.83 per cent; Ray & Gila Valley Railroad Company , 100 per cent ; Nevada Northern Railway Company, 100 per cent; Copper River & Northwestern Railway Co ., 100 per cent ; Alaska Steam- ship Company, 100 per cent ; Gibson Stores Company, 100 per cent; Gallup American Coal Company, 6635 per cent ; Santa Rita Stores Company, 100 per cent; Ray Electric & Telephone Co., 100 per cent; Kennecott Wire and Cable Company, 100 per cent; Garfield Chemical & Manufacturing Company, 50 per cent; Gar- field Water Company, 6635 per cent ; Garfield Improvement Company, 70 per cent; Bingham and Garfield Railway Company, 100 per cent; Utah Copper Company , 100 per cent ; Nevada Consolidated Copper Com- pany, 100 per cent ; Braden Copper Company, 100 per cent; Mines Products Corporation , 100'per;cent; and three foreign subsidiaries, 100 per cent. 1188 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD where it is reduced to two classes of concentrates, to wit: copper concentrates, which are smelted at the smelter at Hurley, and molyb- denite concentrates, which are stored at the Hurley concentrator and shipped directly to purchasers outside of New Mexico." Approxi- mately all of the copper concentrated: at the Hurley mill and. smelter from Santa Rita ore are transported from said mill and smelter in New Mexico, into and through States other than New Mexico and to foreign countries. The value of operating supplies used by the respondent at Santa Rita and Hurley in the conduct of its business from January 1, 1937,__ to March 31., 1938, totaled $2,251,000. Of these' supplies, $661,400 worth, or 29.38 per cent were purchased in the State of New Mexico; while $1,589,600 worth, or 70.62 per cent, were purchased outside New Mexico and shipped to Hurley and Santa Rita. The value of construction supplies purchased for use at Santa Rita and Hurley during the same period totaled $1,779,500. Of these supplies, $119,- 500 worth were purchased in the State of New Mexico, while $1,660,- 000 worth were purchased outside New Mexico and shipped to Hurley and Santa Rita. The respondent estimated that from April 1, 1938, to December 31, 1938, construction supplies valued at $1,150,400 were to be used at the mine, mill, and smelter, and that approximately the same percentage of such supplies would be purchased outside of New Mexico as were purchased outside of New Mexico from January 1, 1937, to March 31, 1938. Santa Rita Store Corporation's annual purchases of supplies and merchandise amounts to approximately $340,000. All of such pur- chases are made outside of New, Mexico and practically all of said supplies and merchandise are sold to employees of the respondent. The officers and directors of the Store Corporation also hold positions with the respondent. We find that the Store Corporation is operated in conjunction with the respondent, and that together they comprise Kennecott's mining enterprise at Santa Rita and Hurley. I. THE ORGANIZATIONS INVOLVED International Union of Mine, Mill and Smelter Workers is a labor organization affiliated with the Congress of Industrial Organizations. Local No. 63 of the Union, herein called Local 63, is a labor organiza- tion which admits to membership employees of the respondent and the Store Corporation at Santa Rita. Local No. 69 of the Union, herein called Local 69, is a labor organization which admits to mem- bership employees of the respondent at Hurley. 11 A small amount of gold and silver is also produced at the respondent 's mine. NEVADA CONSOLIDATED COPPER CORPORATION 1189 III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices 1. Organization of the Union; proceedings by the Union against the respondent Shortly after the National Industrial Recovery Act 15 was enacted on June 16, 1933, the respondent inaugurated an Employee Repre- sentation Plan. R. B. Tempest, general manager of the Chino Mines Division of the respondent, which includes the properties at Santa Rita and Hurley, initiated the Plan and supervised its organi- zation. Employee representatives were elected from five departments of the mine and mill and monthly meetings with the management were held. In the spring of 1934 J. I. Kemp, an employee representative under the Plan, contacted the secretary of the Union, secured applications for membership, and proceeded to organize a local of the Union. He was aided in his organizational campaign by several fellow workers. On March 24, 1934, Local 63 of the Union was chartered.16 By the fall of 1934 a substantial number of employees were members of Local 63. Some time in September recognition of Local. 63 as the repre- sentative of all the employees was requested by the Union. This request was refused by Tempest. As a result of this refusal the Union petitioned the `National Labor Relations Board, which existed under the National Industrial Recovery Act, herein called the Old Board, for an election to determine the exclusive bargaining representative of the respondent's employees at Santa Rita and such representative at Hurley. On September 15, 1934, separate elections were held at Santa Rita and Hurley under the auspices of the Los Angeles Regional Labor Board, to determine whether or not the employees of the respondent at Santa Rita and at Hurley wished to be represented by Local 63. At Santa Rita Local 63 won the election by a vote of 215 to 92. At Hurley Local 63 lost by a vote of 129 to 89. Local 63 was thereafter certified by the Old .Board as the legal representative of the Santa Rita employees, but was denied certification as the representative of the Hurley mill employees. On October 9, 1934, the respondent posted a notice announcing an indefinite shut-down of the Santa Rita and Hurley operations. On October 12 Local 63 filed charges with the Old Board alleging that the shut down was a lock-out in violation of Section 7 (a) of the National Industrial Recovery Act and the Code of Fair Competition for the Copper Industry, under which the respondent was then operating. 15 48 Stat. 195. 16 At this time Local 63 included workers at both the Santa Rita mine and the Hurley mill. The Hurley local of the Union, Local 69, was not chartered until September 24, 1934. 323429-42-76 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 18 and again on October 29 the Old Board referred the charges to the Mountain States Regional Labor Board and requested it to assume jurisdiction. A hearing was held before the Regional Labor Board on February 13 and 14, 1935. On March 29, 1935, the Regional Board issued its decision, which reads, in part, as follows: We find from the testimony introduced that the respondents had been operating for more than twelve months at a loss, due to the low price of copper, and that this constituted. the major cause of the closing of their plant at Hurley and Santa Rita. It is possible that the organization and election conducted by com- plainants and the possibility of labor trouble may have been one of the factors considered in arriving at the final decision to close, but it appears that for many months respondents had been gradually reducing the work period and the number of employees and that the proximate cause of the shutdown was a purely economic one. The Regional Labor Board further found that there was no inter- ference, restraint, or coercion exercised by the respondent against the Union and that none of the charges made by the complainants were supported by competent evidence." The Union filed an appeal from the Regional Labor Board's decision with the Old Board at Washing- ton, D. C., but no decision was handed down by the Old Board since the National Industrial Recovery Act was declared unconstitutional on the day the hearing was scheduled. 2. Attitude of the respondent toward the organization of its employees Although the Old Board found that the shut-down of the respond- ent's operations at Santa Rita and Hurley was not motivated pri- marily by the organization of the Union, various occurrences shortly before and after the shut-down indicate that the respondent's atti- tude toward the Union was not one of complete disinterestedness as it claims. The record establishes that the respondent was opposed to the unionization of its employees from a period antedating the shut-down. The efforts of certain supervisory employees to dissuade employees from voting for the Union in the election held in 1934 clearly reveal the respondent's hostility to the Union and Local 63. Some time before the election Roy Grissom, assistant mine super- intendent, asked Felipe Huerta, an employee, why he was such a strong union man. Huerta replied that he and his companions desired better working conditions. Grissom then advised Huerta, "It is better for you to think it over or not vote for the union because 17 The decision of the Regional Labor Board was a divided report, the Director, who acted as Chairman of the Board, dissenting from the opinion. NEVADA CONSOLIDATED COPPER CORPORATION 1191 this camp has been working and operating for 25 years and you have been protected. If the Union is successful the camp will stop for a year and you will lose your work, possibly you will not get it again. It is better for you to take your Union with the Company, put the Superintendent in as president and leave these outsiders out." Grissom also advised Rafael Kirker and Jose Puertos, employees of the respondent, "to be careful and vote the proper way, especially the Mexicans." Shortly before the election, Marcelo Avalos, an employee at Hurley, was told by his foreman, Claude Danley, not to vote in favor of the Union because it was "not agreeable to the Company." Ac- cording to Carlos Elvira, an employee at Hurley, Danley also notified certain Hurley employees "that the union was coming to Hurley . . if we voted for the union the company would close down its work." This testimony was not denied. When Ira Jones Hicks, a Santa Rita employee, placed a union notice on the bulletin board, his foreman, Belford, remarked, "Some more of that stuff you are pulling off. You fellows pay in to those white collared union guys and receive nothing from it and possibly will cause you trouble. later on." On or about September 9, 1934, H. A. Thorne, the mine superin- tendent, asked Simon Sias, a Santa Rita employee, why he was work- ing for the Union. Sias denied working for the Union, but expressed his approval of it. Thorne then attempted to dissuade Sias from remaining a member of the Union by telling him that if he was satisfied with his work, he did not need a union, and that while, gen- erally speaking, the Union was "good," it would not be "good" in the respondent's camp. Evidence of this nature, of which the foregoing is just a sample, particularly when considered in conjunction with the events occurring at the reopening of the mine, which are described below, establishes that the respondent was opposed to unionization of its employees. Since the National Labor Relations Act became effective only on July 5, 1935, none of the foregoing activities constitute violations of that statute. They are important, however, in considering the signif- icance of the respondent's actions since that date." 3. The circumstances surrounding the shut-down In September 1934, the last month in which the respondent oper- ated prior to the shut-down, there were 343 employees at Santa Rita and 245 at Hurley. On October 9 the respondent posted a notice announcing an indefinite shut-down of both mine and mill. By November the respondent had reduced its pay roll to 45 at Santa IS National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261. 1192 DECISIONS OF iVATIOIVAL LABOR RELATIONS BOARD Rita and 70 at Hurley. The entire office force at Santa Rita was discharged, and no attempt was made to keep even a skeleton crew. Assistant superintendents, foremen, subforemen, the purchasing agent, and the chief engineer at the power. plant were all discharged. The term "discharge" was not used on the employment records of those whose, employment was terminated. On the other hand, there was no evidence that the men were told that they would be called back later, as had been customary when individual employees were laid off temporarily. The employees who were let out as a result of the shut-down were given their final time slips and required to turn in their identification checks. Their names were dropped from the pay roll, and their employment records were placed in the dead file along with thousands of other individuals whose employment had been finally terminated. In December 1935 the electric power plant at Hurley was com- pletely shut down, an event which had not previously occurred in the 25-year history of the mine. This necessitated a further reduc- tion in force, 23 additional employees being eliminated. Early in 1936 the Apache water pumping plant, which was the main source of water for Hurley and Santa Rita, was replaced by smaller pumps; the telephone offices at Santa Rita and Hurley were both closed; while the hospital at Santa Rita was boarded up. A general exodus of former employees followed when it became clear that the shut- clown of operations was to be for an indefinite period,. No attempt was made to preserve the former dwelling places of persons who left; no repairs were made; the windows and doors were sealed up with boards; and in many instances all water and light connections were severed. Some of the Mexicans who owned their own homes, located on company property, moved them away voluntarily. At least half of the houses that remained were abandoned to the elements. Both communities took on the appearance of ghost mining towns. It was expected at the time of the shut-down that the mine and mill would be closed for at least 5 years. . The respondent contends that the shut-down terminated the employee-employer relationship existing between the respondent and its employees and that, therefore, the complainants, no longer being employees, are not entitled to the protection of the Act. On the basis of the entire record we find that the individuals whose work ceased with the shut-down of the mine and mill in October 1934 no longer retained their status as employees at the time the respondent resumed operations in January 1937. The loss of their status as employees, however, did not withdraw the protection of the Act from them. A refusal to hire such individuals upon the reopening of the mine, because of their union membership or activity, would NEVADA CONSOLIDATED COPPER CORPORATION 1193 be a violation of Section 8 (1) and (3) of the Act.19 We turn to a consideration of the question of whether or not the respondent, the Store Corporation, and Kennecott refused to hire the individuals named in the complaint, as amended, because of their union member- ship and activity. B. Discrimination with regard to hire 1. Allegations of the complaint The complaint as originally drawn and subsequently amended, alleged that the respondent, by refusing to reinstate or to give employ- ment to 116 named individuals, discriminated against them in regard to their hire and tenure of employment. At the first hearing counsel for the Board moved to dismiss the complaint as to four persons.20 This motion was granted by the Trial Examiner. At the second hearing the Trial Examiner granted a motion of counsel for the Board to dismiss the complaint as to 13 persons.21 Eleven- of the com- plainants did not appear to testify.22 There is.little evidence in the record with respect to these 11 individuals and such evidence as exists is insufficient to sustain the allegations of the complaint. We shall, therefore, dismiss the complaint as to them. There remains for the consideration of the Board the cases of 89 persons claimed to havebeen discriminatorily refused employment by the respondent.23 Of the 89 persons, 68 claim that they were discrim- inatorily denied employment at Santa Rita, while 21 claim that they were discriminated against at Hurley. In addition, the complaint against the Store Corporation and Kennecott alleges that they, and each of them, discriminated in regard to the hire and tenure of employ- ment of David Saenz. Saenz is also named in the complaint against the respondent. The respondent, the Store Corporation, and Kenne- cott deny that they engaged in the alleged unfair labor practices. 19 See National Labor Relations Board v. Waumbec Mills, Inc., 114 F. (2d) 226 (C. C. A. 1), enforcing as modified, in a particular not here relevant, Matter of Waumbec Mills, Inc. and United Textile Workers of America, 15 N. L. R. B. 37; Matter of Milan Shirt Manufacturing Company and Milan Improvement Com- pang and Amalgamated Clothing Workers of America, 22 N. L. R. B., 1143 Cf., however, Phelps Dodge Cor poration v. National Labor Relations Board, 113 F. (2d) 202 (C. C. A. 2) 6 L. R. R. 756, enforcing as modified, Matter of Phelps Dodge Corporation and International Union of Mine, Mill and Smelter Workers, Local. No. 30, 19 N. L. R. B. 547; National Labor Relations Board v. National Casket Co., Inc., 107 F. (2d) 992 (C. C. A. 2). 20 See footnote 4, supra. 11 See footnote 11, supra. 22 Refugio Apodaca, O. W. Booth, Juan Gonzalez, Isaac Greear, Antoni Guenero, Tony Guerro, Thomas Lottriz, Guillermo Placencio, Antonio Quesada, Teodoro Rios, and Ralph Saenz. 23 The name of Orvil Waggoner does not appear in the complaint as amended. However, Waggoner appeared at the hearing as a complainant and testified in his own behalf. Full opportunity to cross-examine him was afforded the respondent. The Trial Examiner considered his case and ordered his reinstatement. A motion to amend the complaint to conform to the proof was granted at the close of the hearing without objection on the part of the respondent. We conclude that the case of Waggoner was fully litigated. We shall therefore consider him as one of the complainants. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Reopening of the mine and mill a. Employment statistics; availability of jobs Before considering the evidence relating to the respondent's reasons for refusing to hire the 89 complainants herein, we shall examine the evidence to determine whether or not there were positions available for the complainants at the respondent's mine and mill at the time they were refused employment. The record shows that due to the advance in the demand for copper, Kennecott issued instructions in October 1936 for the reopening of its mining properties at Santa Rita and Hurley. In November 1936 the respondent began hiring men in preparation for the reopening of the mine and mill. On January 1, 1937, the mine began operations and by February it was producing at half capacity. With the reopening of the mine and mill the respondent proceeded to hire a great many employees. The following tables set forth the number of old and new workers employed by the respondent during the pay-roll periods indicated: Santa Rita Mine 24 February April December 1937 1938 1939 Number of former employees _______________________________________ 107 102 130 Number of new employees ________________________________________ 269 425 606 Total--------------------------------- ------------- 376 527 736 HURLEY MILL February April December 1937 1938 1939 Number of former employees_______________________________________ 74 68 90 Number of new employees __________________________________________ 302 435 656 Total ------------------------------------------------------ 376 503 746 24 The above tables do not include foremen and others in supervisory capacities. In addition to the above pay-roll figures, H. A. Thorne, superin- tendent of the mine, testified that the number of men employed at the mine increased from a minimum of 415 employees in January 1937 to a maximum of 667 in October 1937.25 He further testified that the e was a gradual decline in the number of men employed from -October 1937 to May 1938, and that the maximum number of men employed was 548. In July 1938 pit operations were, suspended entirely. This necessitated a reduction in force, the number of employees being reduced to 162. During the months of August, September, and half 25 These and the following figures apparently include supervisory employees . No figures were given for the Hurley mill by Thorne. NEVADA CONSOLIDATED COPPER CORPORATION 1195 of October 1938, stripping operations alone were carried on in the mine. No ore whatever was being produced during this time and as a consequence the Hurley mill was closed. During these months the respondent had approximately 400 employees at the Santa Rita mine. From October 16, 1938, up to September 1939, a gradual increase in the number of employees was noted. In September 1939, due to the war scare, a great number of employees were added to the pay roll. In November 1939 there were 818 men on the Santa Rita pay roll. The analysis of the pay-roll records and testimony set forth above shows that since January 1937, with the possible exception of the month of July at Santa Rita and the period between July and Octo- ber 16, 1938, at Hurley, there were positions available for all of the 89 complainants, and that the respondent had more than 89 new em- ployees in its employ. There is no question but that the complain- ants could have filled the positions occupied by the new employees. We, therefore, find that, beginning in January 1937 and extending to July 1938, and from October 16, 1938, to December 1939, jobs were available for all of the complainants and that the respondent could have hired them had it so desired.28 b. Change in employment policies at the respondent's mine and mill (1) Rehiring in 1922 as compared with policy in 1937 The shut-down in 1934 was the second general shut-down experi- enced at the respondent's mine and mill.27 The other occurred in 1921 and extended over a period of a year, the mine and mill reopen- ing in April 1922. As to the method of recalling the men, it is per- tinent to compare the practice followed in 1922 with that of 1937. The record shows that in 1922 the following complainants were recalled by the mining company from places outside Santa Rita and Hurley: Angus Gruwell was recalled from Arizona by a letter from the company's employment agent. J. W. Baxter received a wire in Oklahoma from the company requesting him to return to work. 26 The respondent contends, in its exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order, that the above finding "rests upon the erroneous assumption . . . that because such positions might have been available, the 89 former employees were entitled to have them in preference to others." Under ordinary circumstances former employees usually receive preference over new employees. However, the respondent misinterprets the meaning of the above finding. The purpose of the section set forth above is merely to show that there were jobs available for the complainants upon the dates indicated and was not intended to show that the 89 employees were entitled to preference over other applicants for employment. 27 The record reveals that the respondent did not become the owner of the mine and mill until 1933. ,It, therefore, contends that a comparison between the practice of recalling employees at the mine and mill in 1922 and 1937 is unwarranted. However, the record shows that Thorne, who was in charge of hiring in 1937, was employed in the same capacity at the mine and mill in 1922. Furthermore, the respondent offered no evidence to show that the change in corporations resulted in a change in the hiring policy. We, therefore, believe that a comparison of the hiring policies in 1922 and 1937 is pertinent. 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. L. Weaver was 'recalled by long distance telephone call by his foreman. . The company sent an agent to Bayard, New Mexico, and asked John Howe to return to work. Ysmael Moreno received a special delivery letter in Los Angeles , California, containing a rail- road ticket so that he might return to Santa Rita and enter the employ of the mining company. In Santa Rita and Hurley the company sent its agent from house to house . informing former employees to return to work. It is undisputed that practically all former employees of the mine and mill who desired employment were able to return to work upon the reopening of the mine and mill in 1922. In 1937 the respondent sent its agents among the remaining residents of Santa Rita and Hurley with a list advising certain former employees to see Thorne if they desired employment . It also recalled certain individuals from places outside Hurley and Santa Rita. However, contrary to the procedure in 1922, none of the complainants were advised to return to work. In order to make sure that certain persons did not obtain employment, Thorne specifically instructed the foremen to send all prospective employees to him and not to the time office as had been the former practice. Thorne, who was in charge of hiring in the mining company in 1922, admitted that he did not make a similar suggestion then. He testified that he did not do so because he wanted to see who was going to work and because there was a situation existing in 1937 that did not exist in 1922. Testifying as to certain former employees, Thorne stated that he refused to employ them for personal reasons. The cases of these individuals are discussed below . As to the remaining complainants who were denied employment , Thorne testified that he refused to hire them under instructions from R . B. Tempest, since deceased,", but then general manager of the respondent . This leads us to an analysis of the instructions issued by Tempest as it is revealed in the record. (2) Tempest's blacklist' Prior to the reopening of the mine , W. S. Boyd, executive vice president of the respondent , conferred with R. B. Tempest , general manager, concerning the hiring policy to be adopted by the respondent when the mine and mill reopened. Boyd testified that it had been reported to him that at the time of the shut-down, or shortly before, there was a feeling of unrest among the men, and as a consequence there was some animosity directed against certain officials of the respondent . He testified that he had also received reports from Tempest that threats of bodily harm had been made against Tempest, his family, and other officials of the respondent. When the question of reemploying the men came. up in 1936, Tempest and Boyd agreed, 29 Tempest died on or about May 7, 1939. NEVADA CONSOLIDATED COPPER CORPORATION 1197 according to Boyd, that there was no reason for hiring men "who, in our judgment, had been authors or sympathizers of any movement of that kind . . . Mr. Tempest did not want to put these men on and I told him he did not have to. We had been shut down and now were starting up again. Let us start up again clean, and I told Mr. Tempest I would not let the decision as to that be broadcast among others, but put it in his hands and his hands alone, lay the decision whether or not, iii. his opinion, any individual man formerly in our employ had had any authorship or been sympathetic with a relation- ship of 'that kind and Mr. Tempest took that on himself . . . He made his decision as to certain particular individuals, told Mr. Thorne, in charge of miring at the mine, and Mr. Hodges, in charge of hiring at the mill, those certain individuals were not eligible for reemploy- ment. Except for those, Mr. Thorne and Mr. Hodges were free to hire who they chose." Boyd -also testified that the "list did not exclude members of the Union, Local 63" from employment at the mine and mill. Boyd's testimony to the effect that Tempest's list did not exclude from employment members of Local 63, as such, is not borne out by the record. Thorne testified, and we find, that in October 1936 he was given a list of former employees and instructed by Tempest not to employ them. This list was not produced at the hearing. In its stead Thorne was shown a membership list of Local 63 and requested to check off the names of those persons who were on Tempest's list. At the first hearing Thorne checked off from memory the names of 114 individuals on the membership list as being on Tempest's list. He also checked off six additional names as to whose appearance on Tempest's list he was in doubt, but as to whom, Thorne testified, he and Tempest had had some discussion. The nature of this discussion is not revealed in the record. At the second hearing Thorne enlarged upon his former testimony and testified that approximately 60 or 70 per cent of the persons whose names were on the membership list of Local 63 were also on Tempest's list. The membership list in question contained 331 names. Thus, according to Thorne's testimony at the second hearing, there were between 198 and 231 members of Local 63 on the proscribed list. Thorne did not name any of these individuals, other than the ones he had named at the first hearing. At the second hearing Thorne also recollected that there were 14 individuals whose names were on Tempest's list, who were not on Local 63's membership list. Thorne deprecated the fact that these individuals were on the list, stating that "all of them had good char- acter. Every one of them that I knew, I was willing to employ. In fact it hurt me that I couldn't employ them." It is significant to 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD note that as to the union members on Tempest's list, Thorne expressed no such concern. The respondent contends , in accordance with the testimony of Boyd, that its inclusion of certain persons on Tempest's list and its resultant refusal to hire them , was dictated by its conclusion that they had participated in, or were in sympathy with, conduct inimical to the welfare of the respondent , and that it was therefore justified in refusing them employment. We turn now to an analysis of this contention. In support of its contention the respondent produced a number of witnesses who testified as to threats and rumors of threats emanating from union quarters during the period immediately preceding the shut-down and shortly thereafter. In brief, there were rumors of threats of bodily harm directed against certain supervisory officials of the respondent ; threats that the union men were going to damage the property of the respondent; and threats that the children of Tempest and grandchildren of Thorne were to be kidnapped. The respondent also considers the speeches of union leaders at union meetings expressing their disapproval of the respondent and its officers, and the approbation of such speeches by the union members, as evi- dence of conduct which justified its refusal to hire the union-leaders and union members. The effect of -the respondent's contention is dissipated by the statements of its counsel and the testimony of its witnesses. At the first hearing, the following colloquy took place between the Trial Examiner and the attorney for the respondent: Q. Was there any violence in connection with the lay-off? A. No actual violence. Q. Was anybody assaulted , any foremen or anybody connected in any official capacity of the , company assaulted at their homes or on the streets by the unionmen? A. Not that I am aware of. Q. Any sabotage in the camp? A. Only the testimony of Thorne that they had more breakage in the last few months than before. Thorne testified that he heard rumors that the union men were destroying company property and were going to wreck the tracks; to verify these rumors he personally went out on the tracks and found switches cocked open ; that this occurred six times in 5 months after the Union came in; and that it had not previously occurred over a 20-year period . On cross-examination Thorne stated that he was not trying to establish that the Union was connected with these acts and that as far as he knew they had no connection whatever with the Union. NEVADA CONSOLIDATED COPPER 'CORPORATION 1199 Juan Serna, a deputy sheriff and watchman for the respondent, testified as to the breaking of windows and the destruction of property in company-owned houses after the shut-down. On cross-examination he admitted that no one was arrested for such acts. There is no showing that this damage was in any way connected with the Union or its members. James K. Blair, in charge of the respondent's watchmen, testified that no property damage -was reported to him and that he was not sure that any property of the respondent was damaged. Fred Stevenson, a non-union employee, made certain charges of sabotage against J. I. Kemp and Ira Hicks, union members. The charges against Kemp had to do with the condition of valves in and around. the compressor where both men worked, Stevenson charging that Kemp left open valves which should have been closed and closed valves which should have been opened; and that their condition was dangerous to the life of the man relieving Kemp. The record shows that Stevenson reported these incidents to his superior, Pearson, but that Kemp was retained by the respondent up to the time of the shut- down. There is no evidence that Pearson ever mentioned the com- plaint to Kemp. Nor is there evidence that the respondent refused Kemp employment upon the reopening of the mine for this reason. Stevenson admitted his hostility toward the Union and also admitted that some personal animosity existed between himself and Kemp. Stevenson also testified that Hicks allowed a gate leading to Steven- son's company-owned house to remain open so that stray animals might wander in the yard and destroy the vegetation therein. Assum- ing that Hicks left Stevenson's gate open, it appears that this action was merely an incident occasioned by a personal squabble between Hicks and Stevenson of which the respondent had no knowledge. In view of the entire circumstances, we are of the opinion that the improper actions of Kemp and Hicks, if any, related by Stevenson, bad nothing to do with the respondent's determination to exclude anyone from its employ upon the reopening of the mine. In view of the evidence set forth above, and the entire record, we conclude that the asserted property damage played no part in the determination of the respondent, to exclude from its employ the union members on Tempest's list. We now turn to a consideradon of the contention that the com- plainants were refused employment because rumors had been preva- lent that they were going to inflict personal injuries upon the respond- ent's officers and members of their families. While there is no evidence of a threat having been made by any complainant to any of the respondent's officers or members of their families, the record is replete with testimony respecting rumors of such threats. The facts 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which stand out from the mass of such testimony are that nobody was injured or harmed, and that no investigation of any such rumors was ever made. Thorne conceded that there were no acts of violence directed against the respondent's officers and that no attempts were made upon either his or Tempest's life. In view of the entire circumstances we are persuaded that the rumoced threats of personal injury or bodily harm directed against the respondent's officers was not the motivating factor behind the compilation of Tempest' s list. This becomes evident when it is remembered that there were no more than 8 or 10 individuals con- nected with such rumors, while several hundred persons were named on the blacklist. The cases of the complainants who were directly connected with 'the rumors are discussed below. The above contentions being without merit, the respondent is reduced to the assertion that the great majority of the complainants were denied employment because they were in sympathy with the remarks, hostile to the respondent, evidenced by testimony that union members applauded the haranguing of union leaders and failed to assert their disapproval of certain provocative statements made.by union speakers at union meetings. Such acts, described by the re- spondent as constituting just grounds for the refusal to hire such complainants, are in essence concerted activities on the part of union members. From an analysis of the evidence set forth above and the entire record we are convinced that the respondent's real objection to the persons on Tempest's list was their participation in activities on behalf of the Union. We are strengthened in this conclusion by the follow- ing testimony of Thorne and the testimony of certain of the Santa Rita complainants. Testifying as to certain former employees on Tempest's list, Thorne stated that he would have denied them employment even if they had not been on Tempest's list because they were lacking in "character." 29 In discussing these individuals Thorne testified that he included "agitation" as an attribute of character and that this agitation began in the summer of 1934 at the time when the Union became most active in the solicitation of members. He also testified that "peacefulness" was a condition to be desired and that former employees who were engaged in agitation prior to the 1934 shut-down were not peaceful, hence, undesirable employees. , On cross-examination Thorne ad- mitted that while ordinarily he could judge an employee's character rather quickly, he had been fooled as to several individuals whom he 2 The following complainants were specifically mentioned by Thorne as lacking character : Antonio Cruz, Joseph Beck , V. H. Crittenden, Joseph Beck , and J . L. Robertson . These individuals are further discussed below. NEVADA CONSOLIDATED COPPER CORPORATION 1201 had refused to hire in 1937. Upon being queried as to when he had learned he had been fooled, Thorne testified as follows: A. When all the ill feeling and antagonism started in the camp, I found out. Q. That is when you acted on the particular man who testified? A. Yes, but I don't think I would have been fooled if the men had been left alone. Whitley and Tutsbery, outside organizers, were making promises they knew they could not fulfill . . . Q., The final proof of character of the men was in following Tutsbery and Whitley in joining an outside organization? A. That had much to do with it. It is clear from the testimony of Thorne that he would have refused to hire certain individuals on Tempest's list because of their con- certed activities on behalf of Local 63. The testimony of the individ- ual Santa Rita complainants regarding their attempts to obtain employment after the reopening of the mine in 1937 further reveals that Tempest's list was designed primarily to prevent the employ- ment of former employees who were members of Local 63 and who had engaged in union activities. Ray Gumfory testified that when he applied for work in January 1937 he was told by Harvey Forsythe, a foreman, "You are wasting your time. There is no work for you, Andy was active in the union." Andy Gumfory was a cousin of the complainant and was, at one time, president of Local 63. He was on Tempest's list. Forsythe, although called..as a witness for the respondent, did not deny the testimony of Gumfory. Elmer Hunter testified that Harold Moses, the pit fore- man, told him in March 1937, "If he had anything to do with the union it would be a cinch that he would never get a job there." Hunter was on Tempest's list and was denied employment. His testimony was not controverted. T. B. Benjamin, a former employee, was approached in 1936 by Neutard, boiler maker foreman., and asked whether he wanted to go back to work. Benjamin replied that he did. Later Neutard came back and said there was nothing to do, that they were not putting on any union men. Benjamin was also on Tempest's list. The respondent contends that evidence showing that it hired a number of union men in 1937 refutes any implication that it dis- criminated against members of Local 63 on Tempest's list.30 The mere fact that the respondent hired union members does not support this contention. The evidence does not show that all union members 30 Evidence introduced by the respondent shows that in February 1937 it had hired at Santa Rita 32 former employees who were members of Local 63 ; and that it had hired 15 members of Local 63 who were not former employees , making a total of 40 union members employed as of that date. At Hurley the re- spondent had hired 18 former employees who were members of Local 69, and 12 members of Local 69 who were not former employees , making a total of 30 union members employed as of February 1937. 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were actually active or that the respondent was aware of the names of all union members . In view of the entire circumstances we are of the opinion that the facts do not support the respondent 's contention. The evidence as to the make -up of the list showing that practically all were union men and that between 198 and 231 members of Local 63 were included on the list ; the testimony of Thorne indicating that the respondent was definitely hostile toward persons who had agitated on behalf of the Union ; the fact that the respondent placed certain persons on Tempest's list because they attended union meetings and did not disapprove the allegedly provocative statements made by the leaders of the Union ; our analysis and rejection of the remaining contentions raised by the respondent in justification of its placement of,certain individuals on the list of persons not to be hired ; together with the testimony of the individual complainants clearly reveals, and we find, that Tempest's list was a blacklist of former Santa Rita employees who had engaged in or were suspected of engaging in concerted activities on behalf of the Union. 3. The refusals to hire at Santa Rita We have found that the respondent established a blacklist of former Santa Rita employees who were active, or were thought to be active, union adherents . Of the 68 Santa Rita complainants , 55 were on Tempest's blacklist. Of the 55 blacklisted complainants, Thorne testified that he would have denied employment to six of such com- plainants even though they had not been blacklisted . 31 The respond- ent further contends that 15 additional persons on Tempest's blacklist were not discriminated against because they failed to apply for employment within a reasonable time after the reopening of the mine.32 The respondent also offers other defenses with respect to three additional individuals .33 The cases of these 24 individuals, concerning whom the respondent raises specific defenses , as well as the 13 individuals who were not on the blacklist will be discussed below.34 a. Individuals who were blacklisted and as to whom no specific defense was raised The respondent offers no specific defense for the refusal. to hire 31 complainants on the blacklist other than those defenses which we 3' These individuals are Kemp, Cruz , Beck , Crittenden , Robertson, and Smith. See Section III B 3 b, infra. 32 These individuals are Horcasitas , Kirker, Dull, Apodaca, Vera, Sias , Wedell, Cooley , Arostique, Huerta, Misquez , Carr, Hobbs , Garcia, and Padron. See Section III B 3 c, infra. 33 These individuals are Lee Goetz , J. L. McCraney, and Jesus Saenz. See Section III B 3 b, infra. 34 The cases of 12 of these individuals are discussed in Sections III B 3 d III B 3 e, infra . The case of David Saenz is discussed in Section III B 6 , infra. NEVADA CONSOLIDATED COPPER CORPORATION 1203 have considered above and found to be without merit." The record shows that these 31 complainants applied for employment shortly before or within a reasonable time after the reopening of the mine and that they were denied employment. At the time such individuals applied for employment the respondent was hiring a large number of new employees whose positions the complainants could have filled. In view of these circumstances and the entire record we find that the respondent, by refusing to hire the persons herein listed in Appendix B, discriminated against them in regard to their hire and tenure of employment, thereby discouraging membership in the Union. b. Individuals who allegedly would have been refused employment even though they were not on the blacklist Thorne testified that he would have refused employment to Joseph Beck, V. H. Crittenden, Antonio Cruz; Joseph Kemp, and J. L. Robert- son, even though they were not on the blacklist, because they were directly connected with the rumors set forth above. As to Kenneth Smith, Jesus Saenz, J. L. McCraney, and Lee Goetz, likewise on the blacklist, Thorne also raised objections which assertedly would have barred them from employment even though they had not been black- listed. We shall proceed to a discussion of these individuals. Joseph I. Kemp was considered by Thorne as a competent employee so far as his work was concerned, but, according to Thorne, he lacked "character" and would not work in harmony with other employees. For these reasons, Thorne testified, he was refused employment. It appears that Kemp was one of the originators of Local 63 and took the initial step in its organization. It was Kemp who contacted the International representative and began the organization of the Union in the spring of 1934. Kemp was elected financial secretary and treasurer of Local 63 and was on the committee representing the Union which saw Tempest relative to recognition. He testified, and we find, that he "was most active" in getting the union charter. We have heretofore noted that Thorne's conception of "character" included such traits as "peacefulness" and excluded such traits as "agitation, following outside organizers, and joining an outside organ- ization." We are convinced by the tenor of Thorne's testimony that what he really objected to was Kemp's union activities. We find that the respondent, by refusing to hire Kemp, discrimi- nated against him in regard to his hire and tenure of employment thereby discouraging membership in the Union. Antonio Cruz was also refused employment, according to Thorne, because he was "constantly agitating and constantly exciting the Mexi- cans." Cruz agitated and excited the Mexicans by securing their par- es These individuals are herein listed in Appendix B. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticipation in the activities of the Union. We, therefore, conclude that Cruz was denied employment by Thorne because of his union activities. We find that the respondent, by refusing to hire Cruz, discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. Joseph Beck. Thorne testified that he believed Beck was of the same character as Cruz and was, therefore, refused employment. According to Thorne, "he was not peaceful and did a lot of agitating," and was also connected up with a great many rumors. For the reasons set forth in the case of Cruz, and on the basis of the entire record, we find that the respondent, by refusing to hire Beck, discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. V. H. Crittenden, admittedly a competent workman, was undesirable according to Thorne, because it was rumored that Crittenden had said that "when the union got in control in Santa Rita all non-union men were going down the canyon, and Captain Thorne would be lead- ing them." Thorne admitted that he made no attempt to confirm the rumor, and we do not find, on the record before us, that Crittenden made such a statement. Moreover, the statement, if made, was in furtherance of the activities of the Union. In view of Thorne's failure to investigate the rumor before passing judgment on Critten- den, and in view of Thorne's attitude towards the Union as disclosed by the entire record, we find that Thorne's refusal to hire Crittenden was motivated by his desire to prevent the Union from obtaining an effective organization in Santa Rita. - We therefore find that Crit- tenden was refused employment because of his union activities. We find that the respondent, by refusing to hire Crittenden, dis- criminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. J. L. Robertson testified that he applied for work by letter in March or April 1937 to his former foreman, Harold Moses, and to the respondent's timekeeper, Joe Hines, but that he received no reply. This testimony was not denied. Thorne testified that even had lie applied in person, he would not have received employment because he was an "undesirable employee, connected up with threats of violence to property and person." As in the case of Crittenden, Thorne admitted that he made no attempt to confirm the rumors concerning Robertson. We do not find that Robertson matle any threats against the respondent's property or personnel. Robertson was one of the officers elected by the Union in August 1935, and was on Tempest's list. In view of the above circumstances, and in the light of the entire record in the case, we find that Robertson was refused employment because of his union membership and activities. NEVADA CONSOLIDATED COPPER CORPORATION 1205 We find that the respondent, by refusing to employ Robertson, discriminated against him in regard to his hire and tenure of employ- ment, thereby discouraging membership in the Union. Kenneth Smith, a member of Local 63, was denied employment, according to Thorne, because he was 'a mediocre workman and "besides during the shut-down he destroyed company property, tore steps off the house and used it for firewood which was unnecessary. If I knew they were that hard up, I would have sent them coal myself." On cross-examination by the Board's attorney, Thorne testified as follows: Q. If you had known he needed fuel so badly, you would have sent him coal? A. Certainly . . . Q. That was the reason he wasn't employed? A. Well, he was just a mediocre employee . . . Q. Which was the main reason . . . A. Both, a little more his ability as a workman. I felt sorry for his family. I always got complaints about him. Q. Those complaints started before the shut-down? A. No. From the tenor of Thorne's testimony, we are convinced that the destruction of company property was not the real reason for the respondent's refusal to hire him. With respect to the charge that Smith was a poor worker, it appears that he had been working off and on for the respondent since 1923. He testified that his work had never been criticized. The respondent introduced no evidence in support of Thorne's assertion that Smith was a mediocre employee. The record shows that lie received two service letters from the respondent. In view of the facts set forth above and the fact that Smith was on Tempest's blacklist, a list which did not contain the names of employees whose only shortcoming was "mediocrity," we find that the respondent, by refusing to hire Kenneth Smith, discriminated against him in regard to his hire and tenure of employment, because of his union membership and activities, 'thereby discouraging mem- bership in the Union. J. L. McCraney was first employed at the respondent's mine in 1923 as a steam shovel fireman. He subsequently received two pro- motions and at the time of the 1934 shut-down was working as a crane operator. He was a member of Local 63, having joined in the spring or summer of 1934, and was on Tempest's blacklist. In March or April 1937, McCraney applied for employment to his former foreman, Harvey Forsythe. According to McCraney, For- 323429-42-77 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sythe told. him, "we are not putting back any of the old men, the union men," and that if he had anything to do with the Union it would not be any use applying to Thorne for employment. McCraney testified that because of this advice he failed to make a personal application to Thorne. Forsythe admitted, that McCraney applied to him for a position but denied the remaining testimony of Mc- Craney. We do not credit his denial. McCraney's testimony is in accord with the undenied testimony of Gumfory, who also quoted Forsythe to the effect that it was useless for union men to apply for, work. Moreover, the statements attributed to Forsythe by Mc- Craney and Gumfory are in accordance with the respondent's gen- eral policy, as disclosed by the entire record, of refusing to hire union men on Tempest's list. We find that Forsythe made the statements attributed to him by McCraney, as recited above. We are of the opinion that McCraney's approach to Forsythe con- stituted an application for employment and that Forsythe's admoni- tion that it was useless for McCraney to apply to Thorne constituted a refusal to hire within the meaning of the Act: We find that the respondent, by refusing to hire McCraney in March or April 1937, 'discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. In the spring of 1938, McCraney applied to Thorne for work but was denied employment. Thorne testified that he refused McCraney employment because he had heard that he was already employed at the Phelps-Dodge mine in Ajo, Arizona. Thorne also testified that it was the policy of the company not to deprive other companies of its employees except in rare cases. On cross-examination Thorne admitted that Frank Gwyn, a driller, Leon Keyes and Bill Blaine, locomotive engineers, and Fay Archie, a shovel engineer, were recalled by the respondent upon the reopening of the mine and mill even though they were working for other companies. The positions of the above- mentioned persons are analagous to the position held by McCraney prior to the 1934 shut-down. The record also shows that Keyes was employed at the Phelps-Dodge mine when he was recalled by the respondent. While McCraney had been working for the respondent up to the time the mine was shut down in 1934, Keyes had not worked for the respondent since 1932, while Blaine and Archie had been laid off or had quit prior to the 1934 shut-down. These facts indicate that McCraney was a more valuable employee than the afore-men- tioned individuals. The fact that McCraney had been promoted twice during his employment with the respondent serves to strengthen our conclusion in this respect. In view of the entire circumstances NEVADA CONSOLIDATED COPPER CORPORATION 1207 we are of the opinion, and so find, that McCraney was refused employ- ment in 1938 because of his union activities and membership. We find that the respondent, by refusing to hire McCraney, dis- criminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. Lee Goetz; a member of Local 63, started working at the respondent's mine in 1923 as a brakeman. He was later promoted to the position of locomotive engineer, which position he held at the time of the 1934 shut-down.. He applied for work in January 1937 but was denied employment. Thorne testified that he did not employ Goetz because he believed that he could obtain a .more efficient employee. The record does not disclose who, if anybody, Thorne obtained to replace, Goetz. In view of the fact that Goetz was on Tempest's blacklist and Thorne could not have employed him in any event, we are of the opinion that Thorne's alleged reason for,refusing to hire Goetz was not the true one, and that in fact he was denied employment because of his union membership and activities. We find that the respondent, by refusing to hire Goetz; discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. Jesus Saenz, a member of Local 63, did not apply for employment upon the reopening of the mine. He testified that he did not do so because his three sons had applied for work and were not hired. Thorne testified that while Saenz was an excellent powderman, he had been discharged twice for being drunk on the job. On the first occasion he was discharged for handling explosives while drunk; the second time he was not handling explosives but fell asleep on the job. Thorne testified that he rehired Saenz on both occasions upon his promise to quit drinking. On the last occasion, according to Thorne, it was mutually agreed that if Saenz became intoxicated again he would be automatically discharged. Thorne testified that he saw Saenz drunk off the job in October 1934. While it appears that the mine was not 'operating in October 1934, Thorne testified that he believed that Saenz, by becoming intoxicated, had automatically discharged himself, and thereby eliminated himself from consideration for employment when the mine reopened in 1937. Thorne also stated that "he could not see where [Saenz] would be safe handling powder." Saenz did not deny the above testimony of Thorne. While the case is somewhat in doubt, we find that Jesus Saenz was refused employment for reasons other than his union membership or activities. 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Blacklisted individuals who allegedly failed to apply for work Julian Horcasitas, Rafael Kirker, Juan Vera,36 and Simon Sias testified that they did not apply for work when the mine resumed operations in 1937 upon being advised by other former employees that it was useless for union men, like themselves, to apply for work. In view of the fact that all of said employees were on Tempest's blacklist, it is clear that they would have been refused employment even though they had applied. The case of Sias is typical of the cases of the other individuals. Sias testified that he was in California at the time of the reopening of the mine and was advised by his relatives in Santa Rita that it was useless for union men to apply for work. At the hearing Thorne admitted that he would not . have hired Sias even though he had applied because of the .fact that he was on Tempest's blacklist. Since Thorne also admitted that he carried out the instructions of Tempest not to employ the persons on the blacklist, we find that Horeasitas, Kirker, and Vera, like Sias, would have been refused employment pursuant to the respondent's policy of blacklisting members of the Union, even though they had made prompt application. Under the circumstances, the. failure of the part of the above- named complainants to apply for work being caused by the respond- ent's unfair labor practices in refusing to hire persons who were union members, and such practices being well known to the complainants, we hold that applications by them were unnecessary to place the respondent in default.37 We find that the respondent discriminated in regard to the hire and tenure of employment of Horeasitas, Kirker, Vera, and Sias because of their union membership and activities, thereby discourag- ing membership in the Union. Charles Wedell. The respondent contends that Wedell failed to apply for employment after resumption of operations in January 1937. The record shows that Wedell, an active member of the Union, applied to Thorne in March or April 1937 and asked him whether it was any use to make an application for employment. Thorne replied that there was nothing for him, but that if he cared to he could make out a written application for employment at the office. Wedell did not make out such a written application for employment. It appears that Wedell was on Tempest's blacklist and that the respondent was hiring new employees on or about the time that *6 Referred to on the respondent's pay roll as Juan Bero. 77 See Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R. B. 1212, aff'd in National Labor Relations Board v. Sunshine Mining Company, a corporation, 110 F (2d) 780 (C. C. A. 9); Matter of Carlisle Lumber Company and Lumber and Sawmill Workers Union, etc., 2 N. L. R. B. 248, aff'd in 94 F. (2d) 138 (C. C. A. 9) and 99 F. (2d) 533 (C. C. A. 9). NEVADA CONSOLIDATED COPPER CORPORATION 1209 Wedell applied to Thorne. We are convinced by the entire record that had he not been on Tempest's blacklist, Wedell would. have been employed by the respondent. We find that the respondent, by refusing to hire Wedell, discrim- inated against him in regard to his hire and tenure of employment because of his union membership and activity, thereby discouraging membership in the Union. T. H. Cooley, a member of Local 63 and on Tempest's blacklist, was last employed by the respondent as a pressure engineer. He applied for employment on or about April 25, 1938, but was not hired. He testified that he did not apply sooner because lie expected the respondent to recall him if it desired his services. He stated that his. employment record indicated to the respondent where he could have been reached upon the resumption of operations in January 1937. Cooley further stated that the fact that other union men were not being hired was a factor in his failure to apply for employment. It appears that the respondent recalled certain former employees whom it had need of, and that Cooley was capable of performing work required by the respondent. We are persuaded by the record that if Cooley had not been blacklisted, he would have been recalled. In any event, the fact that he was on Tempest's blacklist precluded him from successfully applying for employment. We find that by not recalling Cooley upon the reopening of the mine and mill the respondent discriminated against him in regard to his hire and tenure of employment because of his union membership and activities, thereby discouraging membership in the Union. Asa T. Carr, a member of Local 63 and on Tempest's blacklist, applied for employment in February 1937. He was told by Joe Hines, the head timekeeper, that the respondent was not taking any more applications. He also overheard Thorne telling another appli- cant for employment the same thing. Carr testified that because of these two factors, he did not ask Thorne for employment. Thorne testified that he did not know that Carr was looking for a position and stated that Carr made no application for employment to him. Although Hines did not have the authority to hire employees, he was authorized to take applications for employment. His refusal to take Carr's application was in essence a refusal to consider Carr for employment. In any event, due to the fact that Carr was on Tem- pest's list, we are persuaded that his application for employment would have been futile. In the light of the foregoing, the entire record, and the fact that the respondent hired new employees after Carr endeavored to apply for employment, we find that the respondent refused to take Carr's application, which was in effect a refusal to hire him, because of his union membership and activities. 1210 DECISIONS Or NATIONAL LABOR RELATIONS BOARD We find that the respondent, by refusing to employ Carr, discrimi- nated against him in regard to his hire and tenure of employment, thereby discouraging membership in the. Union. . In 'addition to the afore-mentioned individuals, the respondent contends that the complaint as to Joseph Beck, V. H. Crittenden, Frank Dull, Charles Hobbs, Miguel Garcia, Conrado Padron and. J. L. Robertson, all union members named on Tempest's list, should be dismissed on the ground that they failed to apply for employment within a reasonable time after the resumption of operations on January 1, 1937. As we have noted above, Beck, Crittenden, and Robertson were denied employment for reasons other than their alleged failure to apply for work. However, the record shows that all of the above persons applied for employment shortly before or after the resumption of operations in 1937.11 It also appears that at the time they applied, or shortly thereafter, the respondent hired a number of new employees. We, therefore, find this contention of the respondent to be without merit. We find that the respondent, by refusing to hire Hobbs, Garcia, Dull, and Padron, discriminated against them in. regard to their hire and tenure of employment, thereby discouraging membership in the Union. Dionicio Apodaca testified that he failed to apply for employment upon the reopening of the mine because the respondent cancelled a lease covering company-owned property on which his home was situated, in January 1936. The record shows that beginning in December 1934 the respondent proceeded to cancel a number of leases covering company-owned properties on which many former employees had built their dwellings. It appears that these cancellations were legal and 'in accordance with the respondent's plan to build company- owned houses for its employees if, and when, the mine reopened. The record shows that from January 1935 to June 1938 the respondent cancelled the leases of 199 laborers. Of these cancellations 37 were leases of complaining witnesses while the remainder were leases of noncomplainants. The record also shows that 14 of the complainants' leases were not cancelled. We find that the cancellation of Apodaca's lease did not constitute an unfair labor practice. Under the circumstances, we find that the respondent has not discriminated against Apodaca in regard to his hire and tenure of employment. Juan Arostique and Felipe Huerta failed to apply for employment at the respondent's mine until November 1937 and January 29, 1938, respectively. Both testified that they had failed to apply at the ae The record shows that Beck applied on or about March 4, 1937; Crittenden, November 11,'1936; Dull, April 1937; Hobbs, May 15, 1937; Garcia, December 1936; Padron, March 15, 1937; and Robertson, March or April 1937. NEVADA CONSOLIDATED COPPER CORPORATION 1211 respondent's mine upon the resumption of operations in January 1937 because they were working at the Asarco mine, a copper mine belonging to the American Smelting & Refining Company . At the time the above two individuals applied for employment the respondent was reducing its force instead of hiring new employees. Under the circumstances we find that the respondent has not discriminated against Arostique and Huerta in regard to their hire and tenure of employment. Teodoro Misquez was laid off in 1932 and has not worked for the respondent since that date. He left Santa Rita some time in 1935 or 1936 and , so far as the record reveals , left no forwarding address. He did not apply for employment until December 1937 , when lie was told that there was no work available for him. He explained that he failed to apply earlier because he was working on a Government dam at Mimbres, New Mexico. The respondent was not hiring employees at the time Misquez applied for work. We find that Misquez was not discriminatorily refused employment by the respondent. d. Former Santa Rita employees who were not on blacklist Nine of the complainants who had formerly worked for the respond- ent at its Santa Rita mine were not among 'those members of the Union named by Thorne as being on Tempest's blacklist. While it is clear that there were more persons on Tempest 's list than the members of the Union acknowledged by Thorne to have been on the list, there is no clear showing that the following individuals , all of whom were members of the Union, were on the blacklist. We shall inquire into each individual case. Francisco Costales began working for the respondent in February 1923. He worked in various positions until the shut-down in 1934. During his employment his work had never been seriously criticized. He was a member of Local 63, having joined sometime before the shut-down in 1934. On January 15, 1937, he applied to Thorne for work and was told that there were no jobs to be had , but that he would be called when needed. Costales reapplied twice in February. Upon the last occa- sion, Thorne advised him to go to the timekeeper so that he would be listed and stated that he would be called at the first opportunity: Costales did as he was told but was never called by the respondent. It is clear from the record that at the time Costales made his appli- cations for employment , the respondent was hiring new employees. In view of .the facts showing that Costales was a member of the Union; that there were jobs available at the time he applied for re- employment;' and no valid reason was offered for the failure to hire 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Costales; and in view of the record as a whole, we find that Costales was refused employment on January 15, 1937, because of his union affiliation and activities. By refusing Costales employment, the respondent discriminated in regard to his hire and tenure of employ- ment, thereby discouraging membership in the Union. Juan Cordova, a member of Local 63, was first employed at the respondent's mine in 1914. He worked as a pit man and on the steam shovels as an oiler, which position he held at the time of the shut- down in 1934. • Cordova applied for work in November or December of 1936 but was told by Thorne that there was no work available. He also talked to John Hines, the timekeeper, who had him make out an application for employment. Three days later and at least once in January 1937, Cordova made himself available by appearing in front of the time office, but was not recalled. During the time Cordova applied for employment new employees were being hired. The respondent offered no reason for, the non-employment of Cordova. I4r view-of the circumstances showing that Cordova was a member of the Union; that he applied for employment when the respondent was hiring new employees; that the respondent offered no valid reason for refusing to employ him; and in view of the record as a whole, we find that Cordova was refused employment because of his union mem- bership and activities. We find that the respondent has discrimi- nated against Cordova in regard to his hire and tenure of employment, thereby discouraging membership in the Union. John Howe and Orvil Waggoner. Howe was first employed at the respondent's mine in 1913. He held the position of locomotive engi- neer for a period of 21 years. He joined Local 63 in April 1934 and was active in the solicitation of members. Waggoner, a member of Local 63, had been employed at the respondent's mine for 11 years prior to the 1934 shut-down. Both Waggoner and Howe were mem- bers of the Union who had been checked off by Thorne as persons whom he had discussed with Tempest, but as to whose presence on the blacklist Thorne was in doubt. In December 1936 Waggoner asked Thorne whether there was any possibility of obtaining employment. Thorne replied in the negative. Later Waggoner applied for work at the Hurley mill and was told by Hodges' secretary that the fact that he was a member of the Santa Rita union would not help him get a job. Waggoner was never employed by the respondent. On January 17, 1937, Howe applied for work at the respondent's mine but was not hired. In the latter part of January he saw Tem- pest and asked him for work, and was told, "Your age is against you . . . I will look after it and see that you get a job." Tempest failed to live up to his promise. Howe applied again by letter in NEVADA CONSOLIDATED COPPER CORPORATION 1213 February 1937, but received no reply to his letter. In November 1937 he saw Thorne and asked him if Tempest had left any notice for him to return to work. Thorne replied that he had not but he would take the matter up with Tempest. Howe was never employed by the respondent. The respondent contends that Howe was refused employment because of his age. The record does not support this contention. .From Tempest's statement set forth above it appears that he-was apparently willing to hire Howe despite his age. Furthermore, the evidence shows that the respondent retained a number of employees who were over the "industrial age" and that age, in and of itself, was no bar to employment. In view of the entire circumstances we find that the respondent, by refusing to hire Howe and Waggoner, discriminated against them in regard to their hire and tenure of employment, thereby discouraging :membership in the Union. Charles Johnson, a member of Local 63, started working at the respondent's mine in June 1925. He worked intermittently as a brakeman until 1932. From June 1932 until October 20, 1934, he was employed by the respondent as a night watchman. In February 1937 he applied for employment by letter, being employed at the Phelps-Dodge mine in Ajo, Arizona, at the time. He received a reply from Thorne telling him that there was no job available. Thorne admitted receiving Johnson's application, but testified that lie did not employ him because Johnson was employed at the Phelps- Dodge mine. He stated that it was the policy of the respondent not to deprive another company of its workers unless there was a special skill involved. Johnson's work for the respondent prior to the shut- down did not require any special skill. We find that the respondent has not discriminated against Johnson. Rafael Lardisabel joined Local 63 on March 27, 1934. He had been employed by the respondent from 1910 until 1934 as a black- smith. Lardisabel was 77 years old and at the hearing admitted that he was unable to work as a blacksmith because of poor eyesight. , He testified that because of his eyesight he had not applied for his former position. We find that Lardisabel was not discriminatorily denied employ- ment by the respondent. Jesus Martinez, a member of Local 63, entered the employ of the respondent in 1919. He worked steadily until 1932, when the respondent reduced force. Since 1932 he has worked only 11 days for the respondent. He did not apply for work on the reopening of the mine in 1937, explaining that he did not do so because of the fact that his union friends were not able to obtain employment. It was 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not, until January 1938 that he applied for employment and. at that time he. was told that there was no work. It appears that in January 1938 the ' respondent was gradually reducing its force. ,,There is no substantial showing that Martinez would have been refused employment had he applied upon the reopening of the mine in.1937. . We find, therefore, that he was not discriminatorily refused employment by the respondent. Antonio Sierra,, a member, .of Local 63, first started to work for the respondent.in 1918., ;He saw .Thorne.in June 1937 and asked for employment., Thorne,advised him to see Joe Hines, the timekeeper, and put in his application. Sierra testified that he was unable to see Hines and therefore did not apply for work. He did not otherwise try to, obtain employment, stating that other union employees were not given work and he therefore felt that it was useless. On November 17,;1939,Sierra was hired by the-respondent. We find that Sierra was not discriminatorily refused employment-. by the, respondent. Aurielo Chavez, a member of Local 63, commenced working for the respondent in 1924. At the time of the shut-down he was working on the tracks. . On. November 23, 1936, just before the mine reopened he: was called for by the respondent but was not available. Later, on February, 18,:1937, he tried to see Thorne about a position but was unable to, do so. Other than this attempt, Chavez did not apply for employment. On December 17, 1939, he was hired by the respondent. Under these circumstances, we find that Chavez was not discrim- inatorily refused employment by the respondent. e. Refusals to hire. new applicants who were not on blacklist Three of the Santa Rita complainants had never previously been in the employ of the respondent. It is claimed that they were discriminatorily denied employment because their relatives were members of the'Union and prominent in its activities. Raymond Horcasitas was the son of Eustacio Horcasitas, who was a member of Local 63 and on Tempest's blacklist. When Raymond applied for work on November 17, 1936, Thorne asked him who he was. Raymond replied that he was the son of Eustacio. Thorne then told him that there was no chance for employment. On Decem- ber 10, 1936, Raymond applied for work at Hurley but was not given employment.. Other employees, mostly new men, were being hired during the times when Horcasitas applied for employment. The respondent offered no reason for the failure to hire Horcasitas. In. view of the conversation between Horcasitas and Thorne, the showing that there were jobs available when Horcasitas applied for employment, and the fact that no reason was given for refusing him NEVADA CONSOLIDATED COPPER CORPORATION 1215 employment, and in view of the entire record, we find that Horcasitas was denied employment by the respondent because of the membership and activity of his father, Eustacio Horcasitas. We find that the respondent, by refusing to hire Raymond Horca- sitas, discriminated against him in regard to his hire and 'tenure of employment, thereby discouraging membership in the Union.39 Ray Gumfory was the cousin of Andy Gumfory, president of Local 63, and the son of 0. M. Gurnfory, a member of the Local. ` Both Andy and O. M. Gumfory were on Tempest's blacklist. Shortly after the mine reopened, in January 1937, Ray put in his' application for employment with the timekeeper. Thereafter he saw Thorne and again applied for work. Thorne told him that at that time the respondent was not hiring anybody but boilermakers. The record shows that the respondent hired several hundred employees in January. We do not believe that they were all. boilermakers. As we have noted above, when Ray applied for work in. January 1937, Harvey Forsythe, the foreman, told him, "You are wasting your time and money looking for a job. Andy was too active in the Union." This testimony was not denied. We find that the respondent refused to employ Ray Gumfory because of. the union activities and affilia- tion of his relatives. We find that the respondent, by refusing to hire Ray. Gumfory, discriminated against him in regard to his hire and tenure.of employ ment, thereby discouraging membership in the Union.40 Gilbert Saenz had never previously been employed by the respond- ent. He is the son of Jesus Saenz and the brother of Samuel Saenz,. both of whom were members of the Union and on Tempest's list. He applied for employment in December 1936, and was told that there was nothing doing. Several days later Saenz, in reapplying for em- ployment, stood in line with a group of other employees who were waiting to be interviewed by Thorne. While the person in front of Saenz and the person behind him were hired,,Saenz was not given employment. Saenz was given no .explanation. for this refusal. The record does not disclose that the respondent was aware of Saenz's identity at the time he applied for employment. We are of the opinion that record does not support.the.allegations of the complaint with respect to Gilbert Saenz. We therefore find that Saenz was not discriminated against by the respondent. 39 See National Labor Relations Board v. Fashion Piece Dye Works, Inc., 100 F: (2d) 304 (C. C. A. 3) enfor.c- ing Matter of Fashion Piece Dye Works, Inc. and Federation of Silk and Rayon Dyers and Finishers of America, 1 N. L. R. B. 285,6 N. L. R. B. 274; Matter of Mansfield Mills, Inc. and Textile Workers Organiiin y Coininittee, 3. N. L. R. B. 901. 49 Ibid. 1216. DECISIONS OF NATIONAL LABOR RELATIONS BOARD f. Conclusions with respect to the refusal to hire the Santa Rita complainants We have examined the evidence concerning the Santa Rita com- plainants and have found that the respondent discriminated in regard to the hire and tenure of employment of 56 of the complainants. We find that by such discrimination in regard to the hire and te:lure of employment of the individuals mentioned above, the respondent discouraged membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. We find that the respondent has not discriminated against Dionicio Apodaca, Juan Arostique, Felipe Huerta, Teodoro Misquez, Jesus Saenz, Charles Johnson, Rafael Lardisabel, Jesus Martinez, Gilbert Saenz, Antonio Sierra, and Aurielo Chavez, in regard to their hire and tenure of employment within the meaning of Section 8 (3) of the Act. 4. The refusals to hire at Hurley The complaint alleges and the answer denies that the respondent discriminated in regard to the hire and tenure of employment of 21 named individuals formerly employed or seeking employment at the Hurley mill. The testimony of Boyd, executive vice president of the respond- ent, reveals that Hodges, the superintendent at the Hurley mill, was supplied with a copy of Tempest's blacklist. Hodges was noi; called as a witness for the respondent to deny or affirm the testimony of Boyd. We therefore conclude that he was furnished with the black- list. It is also clear from the testimony of individual complainants formerly employed at Hurley that the respondent was practicing the same form of discrimination against union members at Hurley that it practiced at Santa Rita. Carlos Elvira, a former employee at the Hurley mill, testified that in a conversation with his carpenter foreman, Hill, sometime a'ter the reopening of the mill, he was told that Hodges would do nothing for him because he had been a member of the Union. The respondent did not controvert this testimony. On November 8 or 9, 1936, Manuel Martinez, a Hurley mill employee, was told by his former foreman, Early, that Hodges wanted to see him about work. Mar- tinez went to see Hodges and was asked why he joined the Union. Martinez replied that he joined the Union in hopes of getting better working conditions. Hodges then inquired as to what Martinez thought of the Union. To this Martinez replied, "To tell the truth, I don't know if we are in the Union or not . . . but if itr comes back, I am a union man." Hodges then informed him that his services NEVADA CONSOLIDATED COPPER CORPORATION 1217 were not needed. Sometime later Martinez was told by Early that he "talked back to Hodges" and that therefore he was not given a job. Martinez protested and stated that he only told the truth, but that perhaps he made a mistake and he would like to get a job. Early then told him to return to Hodges. Martinez did so and informed Hodges that Early had sent him over for a job. Hodges remarked that he tought Martinez told him he was a union man. Martinez then lied and said, "I don't know what union you are talking about, the company union or any other." Martinez was then employed by the respondent. The testimony of Martinez remained uncontra- dicted on the record. Thomas Zamora testified that he was told by his former foreman, Claude Danley, that the fact that he belonged to the Union probably accounted for his not getting work. This testimony was not controverted by the respondent. We find from the evidence set forth above that the respondent actively engaged in a policy of discrimination against former Hurley employees because of their union membership and activity. We shall now turn to a discussion of the individual cases. Gregorio Arispe, a member of the Local at Santa Rita, applied for work at the Hurley mill in January 1937. He testified that after he was hired, but before he went to work, Hodges asked him where he had come from. Arispe told Hodges that he came from Santa Rita. Hodges then refused to allow him to go to work. No reason was given for this refusal. Sometime later, Arispe applied for work at Santa Rita but was not hired, At the time of his application for employment at both Santa Rita and at Hurley, new men were being hired by the respondent. Hodges' refusal to allow Arispe to work, coming as it did, imme- diately following the disclosure that lie was from Santa Rita, together with the fact that the respondent was discriminating against union members, convinces us, in the absence of any explanation by' the respondent, that Arispe was discharged or denied employment by the respondent because of his membership in the Santa Rita local of the Union. We find that the respondent discriminated in regard to Arispe's hire and tenure of employment, thereby discouraging membership in the Union.41 Primitio Arrey, a member of Local 69, was first employed at the respondent's Hurley mill in 1923. He worked steadily as a general laborer until the 1934 shut-down. His work had never been seriously criticized. 4' See Matter of Knoxville Publishing Company and American Newspaper Guild, The Knoxville Newspaper Guild, 12 N . L. R. B. 1209. J2 1;8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . in January 1937, upon the reopening of the mill, Arrey applied for work to Hodges, who asked him to make out an application. Arrey complied with this request but did not receive employment. Thereafter Arrey made several other attempts to secure. employment at the Hurley mill but was unable to do so: During the period when Arrey was seeking employment, new employees were being hired by .the respondent. The respondent offered no reason for its failure to employ Arrey. We find that the respondent, by refusing to hire Arrey, d.iscrimi- nated.aga.inst him in regard to his hire and .tenure of employment because of his Union membership and activity, thereby discouraging membership in the Union. Felipe Avalos, a member of Local 69, started working for the respond- ent at its Hurley mill in September 1922 and continued working until. the 1934 .shut-down. He was last employed as an operator of the,screens on the rock crusher. During his employment his work ,was never seriously criticized. In April 1.937 Avalos asked his former foreman, Ben Gray, for employment and was told that Hodges did not want to give him work. The respondent: offered no explanation for its refusal to employ Avalos:: At the time Avalos applied for employment, the respondent was, hiring new employees. We find that the respondent, by refusing to hire Felipe Avalos, discriminated against him in regard to his hire and tenure of employ- ment, because. of his union membership and activity, thereby discou. r- aging membership in the Union. Marcelo Avalos, a trustee of Local 69, was first employed by the respondent at its Hurley mill in 1911. He worked intermittently .from 1911 until the 1921 shut-down. When the respondent resumed .operations in 1922 he was recalled and worked steadily until the 1934 shut-down. During his employment his work was never seriously .criticized. .. In,December 1936 Avalos applied to his former foreman, Ben Gray, for his old position. Gray informed him that he had no authority to hire at that time but when he did Avalos would be one of ' he first to be hired. Upon Avalos' request, Gray promised to see Hodges about his employment. Avalos was not advised of the outcome of this interview. In June 1937 Avalos, by letter, again applied for work, this time 'to Tempest. He received no reply to this request. New employees were being hired at the times Avalos requested employment. The respondent offered nb reason for not employing Avalos. We find that the respondent, by refusing to hire Marcelo Avalos, discriminated against him in regard to his hire and tenure of employ- ment, because of his union membership and activity, thereby dis- couraging membership in the Union. NEVADA CONSOLIDATED COPPER CORPORATION ' '1219 Encarnacion Dominguez, a member of Local 69, worked' inter- mittently at the respondent's Hurley mill until January 14, 1931.' At that time he was discharged for being intoxicated and for failing, to come to work. Dominguez also admitted that he had been discharged on August 31, 1925, for refusing to work overtime during an emergency, and on September 1, 1929, for laying' off without notice.' He was refused employment by the respondent sometime during 1937.' In view of the circumstances set forth above, we find that Dominguez has not been discriminatorily refused employment by the respondent. Carlos Elvira, a member of Local 69, was first employed at -the respondent's mill in 1917. He worked there steadily as a general laborer from November 1925 until the 1934 shut-down. He was never seriously criticized for his work. In January 1937 he applied for work to his former foreman, Hill. Hill told him that although he could speak to Hodges about employ- ment, he probably would not obtain any because he had•been-a mem- ber of the Union. In May 1937 Hill left word at Elvira's home' for him to report for work the next morning. In accordance with these instructions, Elvira reported for work. However, when' he reported', the timekeeper told him to see Hodges before going to work. Elvira attempted to see Hodges but was delayed by his secretary., Hodges did not appear until 11 o'clock that morning, and when he did so he told Elvira that he did not have time to talk to him. On this occiision new employees were being hired at the Hurley mill. The.responden' t offered no reason for the non-employment of Elvira. In view of the entire circumstances, we find that the respondent, by refusing to hire Elvira, discriminated against him in regard 'to his hire and tenure of employment, thereby discouraging membership in the Union. Julio P. Grado, a member of Local 69, worked at the respondent's mill from 1926 until 1933. Grado held the position of president of Local 69 and was active in its affairs. He applied for work in January 1937 and was told by Hodges that everything was filled up. - It appears that at the time Grado applied for work, other men, mostly new employees, were being hired by the respondent. We are ' con- vinced by this fact that at the time Grado applied for work there were vacancies existing which he could have filled. No other reason for its refusal to employ Grado was offered by the respondent. In view of the facts set forth above, we find that the respondent, by refusing to hire Grado, discriminated against him in regard' to' his hire and tenure of employment, thereby discouraging membership in the Union. Maclovio Huerta was not a member of either Local 63 or Local W. He started working in the respondent's Hurley mill in, 1912 and worked 1220 DECISIONS or NATIONAL LABOR. RELATIONS BOARD steadily until 1919. Since that time he has ' not worked for the respondent.' Early in 1937 Huerta asked his former foreman, Woods, for ,i letter of recommendation . Woods asked him if he was a member of the Union, and when Huerta replied that he was not, gave him the re- quested letter of. recommendation . Huerta presented the recom- mendation to Hodges shortly thereafter but was not given employ- ment.' It appears that four or five other men were given employment on that day. There is no showing that the respondent believed that Huerta was a. member of the Union.or that he was active in its affairs . Indeed, the evidence is to the contrary . We find that Huerta was not dis- criminatorily refused employment by the respondent. . :Geronimo Jaurigui, a member of Local ' 69, worked at the respond- ent's Hurley mill from 1912 until 1930. In January 1937 he applied to Hodges for work but was denied employment. • Other men were being hired at the time of his application, most of them being new employees . On or about June 20, 1937 , Jaurigui asked Claude Danley, a foreman, why he had not 'been given work. Danley replied that he had spoken to Hodges about employing him but that ].lodges had said that he could not 'give Jaurigui or his son any work. J,Iurigui then inquired of Danley whether or not this refusal was because of the Union. Danley replied, "he didn't know but he thought so." The respondent offered no other reason for the failure to employ Jaurigui. We find that the respondent , by refusing to hire Geronimo Jaurigui, discriminated against him in regard to his hire and tenure of e:nploy- nient; thereby discouraging membership in the Union. Juan Jaurigui, a member of Local 69, worked at the respondent's mill from 1916 until 1934. He was last employed as a general laborer on the rock crusher . On March 15 , 1937, he applied for work to Danley, his former foreman. Danley told him that he had spoken to Hodges about his working for the respondent and that Hodges had told 'Danley that there would be no work for a while. At the time Jaurigui applied for'work the respondent was still hiring new employ- ees. The respondent offered no other'reason for its refusal to ?mploy Juan Jaurigui.. In view of . Dfinley's explanation for the refusal to hire Juan's father and in view of the entire circumstances set forth above, we find that the respondent , by refusing 'to hire Juan Jaurigui, dis- criminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. 17smael Moreno, a member of Local 69, was first employed at the respondent 's mill in 1929 and worked steadily rintil the 1931 shut- NEVADA CONSOLIDATED COPPER CORPORATION 1221 clown. He was last employed as an oiler in the machine shop. On October 1, 1934, he was elected secretary-treasurer of Local 69 and was otherwise active in its affairs. He applied for work on November 20, 1936, and was allowed to make out an application for employment. Later in the day Hodges told him that there was nothing for him at that time. At least one other employee was hired on that day. Sometime later Moreno's father went to see Ben Gray, Moreno's former foreman, and asked him if he was going to take Moreno back. Gray replied, "No, he cut his neck when he joined the Union." Despite Moreno's application for employment, he was never recalled by the respondent. In view of the circumstances set forth above, we find that the respondent, by refusing to hire Moreno, discriminated against him in. regard to his hire and tenure of employment, thereby discouraging membership in the Union. Paulino Rodriguez worked at the respondent's Hurley mill from 1.91.5 to 1930, when he was laid off due to a reduction in the force. Two months after the mill reopened in 1937 he applied for employ- ment but was given "no satisfaction." Six months later he made another application for employment but was not offered work. It appears that new employees were being hired at the time he made his applications. We find that the respondent has not discriminated in regard to Rodriguez' hire and tenure of employment. Jose Serna, a member of Local 69, started to work at the respond- ent's mill in 1913, and was employed steadily from 1926 until the 1934 shut-down. In December 1936 his foreman, Ben Gray, sent for him to return to work. When Serna responded to the call he was told to go and see Hodges. He did so and was asked by Hodges whether or not he joined the Union in 1934. While the record fails to disclose whether or not Serna replied that he had been a member of the Union, it does show that Hodges refused him employment. At the time new employees were being hired. The respondent offered no explanation for its refusal to hire Serna. - We find that the respondent, by refusing to hire Serna, discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. Thomas Zamora, a member of Local 69, was employed at the respondent's mill from 1929 until the 1934 shut-down. He was last employed as an ash man in the repair shop. During his employment his work was never seriously criticized. On December 15, 1936, he applied for employment to Hodges, who told him that there was no work at the time, but that he should "keep on coming." Several days later Zamora saw his foreman, Danley, who put in an application 323429=42-78 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for him. Later in the day the witness asked Danley why he was not given work. Danley could offer no reason why he was not employed and asked Zamora whether or not he belonged to the Union. , When Zamora replied that he was a member of the Union, Danley told him that that was probably the reason he was not employed. On the day Zamora applied to Danley for work the respondent hired new employees. In view of the entire circumstances, we find that the respondent, by refusing to hire Zamora, discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. Jerry Gonzales, Pedro Herrera, Mariano Placencio, and Pedro Saiz, all members of Local 69, failed to apply for employment at the re- spondent's mill. The record shows that the respondent hired 18 members of Local 69 by February 1, 1937. The record does not reveal any compelling reason for concluding that the above-mentioned individuals would have been denied employment had they applied along with the other 18 union members who were hired. We find that the respondent has not discriminated against Gonzales, Herrera, Placencio; and Saiz with respect to their hire and tenure of employment. Maximo Gomez, Gilly Rodriquez, and Gil Salais, all members of_ Local 69; had been employed by the respondent at its mill for con- siderable periods of time prior to the shut-down in 1934. At the time of the shut-down all three were being maintained on the respondent's pay roll for 6 days a month, working at various odd jobs. The respondent contends that these three employees were maintained on its 1934 pay ioll as charity cases, that it could not use them to any advantage on the reopening of the mill in 1937, and that it therefore, refused them employment. The record supports this contention. At the time of the first hearing Gomez was 70 years old and admitted that he had not applied'for employment in 1937 because of his old age. Rodriguez was over 60 years old in 1937 and died on March 5, 1939. The record does not disclose the age of Salais, but iii; shows that lie died on April 14, 1939. We find that the respondent has not discriminated against Gomez, Rodriguez, and Salais in regard to their hire and tenure of employ- ment. In summation, we find that the respondent discriminated in regard to the hire and tenure of Gregorio Arispe, Primitio Arrey, Felipe Avalos,' Marcelo Avatos, Carlos Elvira, Julio P. Grado, Geronimo Jaurigui; Jaun Jaurigui, Ysmael Moreno, Jose Serna, and Thomas Zamora.. We find that by such discrimination the.respon&,nt has discouraged membership in the Union and has interfered with, re- NEVADA CONSOLIDATED COPPER CORPORATION , 1223 strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the respondent has not discriminated in regard. to the hire and tenure of employment of Encarnacion Dominguez, Jerry Gonzales, Maximo .Gomez, Pedro Herrera; Maclovio Huerta,. Mariano Placencio, Gilly Rodriquez, Paulino Rodriguez, Pedro Saiz, and Gil Salais, within the meaning of Section 8 (3) of the Act, and the allega- tions in the complaint with respect to them will therefore be, dismissed. 6. David Saenz The complaint against Kennecott and the Store Corporation alleges that they and each of them discriminated in regard to the hire and tenure of employment of David Saenz because of the union membership and activities of persons related to said David Saenz. The complaint against the respondent alleges that it refused to give employment to David Saenz for the reason that he joined and, assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining or other mutual aid and pro- tection. . David Saenz had been employed by .the Store Company as a truck driver from September 1933 to October 1934, when the respondent's operations closed down. At the time of the first hearing in this pro- ceeding Saenz was not a member of the Union. He joined Local 63 prior to the second hearing. His brothers, Samuel and Gilbert Saenz, and his father, Jesus Saenz, were members of the Union, and Samuel and Jesus were named on Tempest's list. However, we have already considered the cases of Gilbert Saenz and Jesus Saenz and have found them to be without merit. On.the other hand, Samuel Saenz held the position of recording secretary of Local 63 and was otherwise active in its affairs. On December 15, 1936, David applied to the Store Corporation, .which had succeeded the Store Company, for his former position with the Store Company. C. E. Derbyshire, the store manager, for both the Store Company and the Store Corporation, told him that he could not hire him. The record shows that about 2 weeks before Saenz applied for employment at the store, Derbyshire hired a new truck driver. Derbyshire testified that the new employee had been hired before Saenz applied and that at that time he did not know where David could be located. In January 1937 another truck driver, was, hired by the Store Corporation. Derbyshire explained that this truck driver was hired in preference to Saenz because he had been formerly employed. by the Store Company, had more seniority than Saenz, and had a large family to support. 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are of the opinion that the record does not sustain the allegations of the complaint with respect to David Saenz. We shall therefore order the dismissal of the complaint against the Store Corporation and Kennecott.- With respect to the allegations of the complaint against the r,,spond- ent concerning David Saenz it appears that; following th,, Store Corporation's refusal to hire Saenz, he applied to Thorne for a position at the mine but was not given employment. The record shows that David Saenz was not a member of the Union at the time of his appli- cation at the mine, nor is there any showing that he engaged in any concerted activities with other employees. In view of the entire circumstances, we find that the respondent has not discriminated against David Saenz in regard to his hire and tenure of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the r,.,spond- ent described in Section I above, have a close, intimate, and sub- stantial 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 respondent has engaged in unfair labor practices, we will order it to cease and desist thereform and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the condition which existed prior to the commission of the unfair labor practices. We have found that the respondent has-discriminated in regard to the hire and tenure of employment of Filipe Avalos, Juan Castro, Frank Dull, Antonio Esqueda, Genaro Grijalva, and the individuals named in Appendices C and D, attached hereto. This discrimination took the form of a refusal to hire. Under ordinary circumstances we would order the respondent to offer immediate employment with full hack pay to such persons.41 However, due to certain peculiar cir- cumstances existing-in the present case, we shall make certain excep- tions to our general ruling. As to the requirement that the respondent offer immediate employ- ment to certain individuals, the respondent contends that the Board lacks the power to order the employment of 26 named individuals who, it claims, have obtained other regular and substantially equivalent employment since the discrimination against them. While we. do not 4' Matter of Waumhec Mills , Inc. and United Textile Workers of America , 15 N. L. R. B. 37; Mat ter of Milan Shirt Manufacturing Company and Milan Improvement Company and Amalgamated Clothing Workers of America, 22 N. L. R. B. 1143. NEVADA CONSOLIDATED COPPER CORPORATION 1225 adopt the view that the obtaining of other regular and substantially equivalent employment deprives the Board of power to reinstate individuals who have been discharged or refused employment for union activities and desire reinstatement,43 the employment records of these complainants, since the date of their discrimination, would not in any event justify the application of the rule for which the respondent contends.44 William Horace Hopkins. Since the_;mine reopened in 1937, Hopkins has earned approximately $90 a month working for a lumber company in New Mexico. He had been employed by the respondent prior to the 1934 shut-down as a blacksmith and was earning $4.25 a day. As we have noted above, the operations at the respondent's mine and mill continued quite steadily with the exception of the period between July and October 1938. If Hopkins had not been discriminated against by the respondent and been placed in his former position, it is clear that he would have earned more working for the respondent than he has earned working for the lumber company. Hopkins testified that he desired to be reemployed by the respondent. We find that since the reopening of the mine Hopkins has not obtained substantially equivalent employment. Julian Horcasitas earned approximately $935 between January 1937 and May 1938 as a hospital attendant at Fort Bayard, New Mexico. He was formerly employed by the respondent as a general laborer earning $3.65 a day. Horcasitas expressed a desire to be reemployed by the respondent. We find that Horcasitas has not obtained regular and substantially equivalent employment. Elmer Hunter has been working for the Santa Fe Railroad since August 1936 but testified that his work was not as steady as employ- ment with the respondent would be. He has earned approximately $950 since the mine reopened- in January 1937. Prior to the 1934 shut-down, he was earning $2.85 a day as a locomotive fireman. Hunter expressed a desire to be employed by the respondent. We find that Hunter has not obtained regular and substantiallyequivalent employment. Charles E. Hobbs has earned approximately $700 since he applied for work in May 1937. He testified that while he had a job at the time of. the hearing, it was not as steady as employment with the respond- ent. He expressed a desire to be reemployed. Prior to the 1934 shut-down Hobbs was earning $3.80 a day as a brakeman. We find 43 Matter of Eagle-Picher Mining & Smelting Company, a corporation , and Eagle-Picher Lead Company, a corporation and International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108 and 111, 16 N. L. R. B. 727; Continental Box Co., Inc.,. v. National Labor Relations Board, 113 F. (2d) 93 (C. C. A. 5) enf'g Matter of Continental Box Compa7ay, Inc. and Federal Labor Union No. 21828, 19 N. L. R. B. 860. 11 See Mooresville Cotton Mills v. National Labor Relations Board, 110 F. (2d) 179 (C. C. A. 4), enforcing as modified, pursuant to 97 F. (2d) 959 (C. C. A. 4) and 94 F. (2d) 61 (C. C. A. 4) Matter of Mooresville Cotton Mills and Local No. 1221, United Textile Workers of America, 2 N. L. R. B. 952 and 15 N. L. R. B. 416. 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Hobbs has not obtained regular and substantially equivalent employment. Bautista Perea formerly worked for the respondent as a common laborer earning $2.60 a day. In February 1937 he obtained employ- ment, with the Black Hawk mine and earned $16.80 for the entire month. He continued working for the Black Hawk mine during the month of March and earned $23.35. In May 1937 he obtained em- ployment at the Peru mine and earned $67.50. In June his earnings totaled $70.27. In July Perea transferred back to the Black Hawk mine. He testified that he earned $3 a day, but that his work was not steady. 'He continued working at the Black Hawk mine until December 1937. On December 28 he obtained a position with W'. P. A., which position he held at the time of the hearing in May 1938. He testified that his job at the time of the hearing was not as satis- factory as at the respondent's mine. We find that Perea has not obtained regular and substantially equivalent employment. J. W. Baxter was employed as a locomotive fireman and engineer at the time of the 1934 shut-down and was earning $5.15 it day. Since he applied for work at the respondent's mine on January 15, 1937, he has earned approximately $1,000. Of this amount, he earned $681 working for the Phelps Dodge Mining Company and the re- mainder working for W. P. A. At the time of the hearing he was unemployed and expressed a desire to be reinstated. We find that Baxter has not obtained regular and substantially equivalent em- ployment. Luther W. Weaver was last employed by the respondent as a time checker in the general office and was earning $4.15 a day. Since the mine reopened in 1937 Weaver has earned approximately $755. Of this amount approximately $315 was earned working for W. P. A., and the remainder was earned in private employment. He expressed a desire to be reemployed by the respondent. We find that Weaver has not obtained regular and substantial equivalent employment. T. B. Benjamin was last employed by the respondent as a boiler- maker and was earning $5.10 a day. Since the mine reopened in 1937, he has earned approximately $700 operating his own private wheel shop. He testified that from September 1 to September 18, 1935, he obtained a position at the Imperial Water Works in Hobbs, New Mexico, which was as good as the job he held before the shut-down. However, he testified that while the position was satisfactory, ' the living conditions at Hobbs, New Mexico, were not, due to the fact that there was no place for his family. We find that Benjamin has not obtained regular and substantially equivalent employment. J. L. Benjamin was formerly employed by the respondent as a shovel operator and was being paid at the rate of $7 a day. Since NEVADA CONSOLIDATED COPPER CORPORATION 1227 January 1937 he has earned approximately $1100 working for. the New Mexico State Highway Commission. This job lasted only from January to October 1937. Since then Benjamin has not, been working. He expressed a desire to be reinstated. We find .that Benjamin has not obtained regular and substantially equivalent employment. Juan Castenda was last employed by the respondent as a gauge man on the track, and he was being'paid at the rate of $2.60 a day. Since he applied for employment on February 10, 1937, he has earned approximately $1235. He worked 6 months on W. P. A., receiving' approximately $40 a month. He has also worked intermittently at the Black Hawk mine and the Asarco mine. Castenda expressed a desire to be reemployed by the respondent. We find that he has not obtained regular and substantially equivalent employment. Bonifacio Alvarado was formerly employed by the respondent asa general laborer on the tracks and was being paid at the rate of $2.60 a day. Since January 1937 he has worked 7 months for W. P. A.' and earned $280. He also worked 4 months at the Peru mine and earned $312. He expressed a desire to be reemployed by the respondent. We find that Alvarado has not obtained regular and substantially equivalent employment. Antonio Cruz was last employed by the respondent as a ,powder man and was earning $2.60 a day. Since February 17, 1937, he has earned approximately $295.40 working at the Peru mine. He expressed a desire to be reemployed by the respondent and testified that he had not been able to obtain a job as good as the one he had before the mine .shut down. We find that Cruz has not obtained regular and substan- tially equivalent employment. Felipe-Avalos was last employed by the respondent as a rock crusher operator and was being paid at the rate of $3.15 a day. Since January 1, 1937, he has earned approximately $641.48 working for the Asarco mine and $60 working for W. P. A. He expressed a desire to be reemployed at the Hurley.mill and testified that he has not been able to receive equivalent employment since the shut-down. We find that Avalos has not obtained regular and substantially • equivalent em- ployment. Angus Gruwell was last employed by the respondent as a shovel operator and was being paid at the rate of $7 a day. Since the mine opened up, he has earned $691 selling Watkins products. He ' ex- pressed a desire to be reemployed by the respondent. We find that he has not obtained regular and substantially equivalent employment. Francisco Costales was last employed by the respondent as a general laborer working on the tracks. At that time he was earning $2.60 a day. Since January 1, 1937, he worked at the Peru mine for 5 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months and earned $351. He then obtained employment at the Black Hawk mine for a few days and earned $15. Since then he has earned approximately $85 in private employment and $18 working for W. P. A. Altogether he has earned approximately $469. He expressed a desire to be reemployed with the respondent and testified that he has not been able to obtain as good a position as the one he held ' with the respondent. We find that Costales has not obtained regular and substantially equivalent employment. Juan Candelaria was last employed by the respondent as a general laborer on the track. He was being paid at the rate of $2.60 a day; Since the mine reopened, he has earned $651.55 working for the Asarco mine. He also received employment from W. P. A. and earned $206. He testified that he has not been able to obtain a position as good as the one he had with the respondent. Candelaria expressed a desire to be reemployed by the respondent. We find that he has not obtained regular and substantially equivalent employment. Nicholas Delgado was last employed by the respondent as a general laborer on the rock crusher. He was being paid at the rate of $2.95 a day. Since January 1, 1937, he worked 6 months for the Santa Fe Railroad and earned $397.88. He expressed a desire to be reemployed by the respondent and stated that he has not received a job as good as the one he had with the respondent. We find that Delgado has not obtained regular and substantially equivalent employment. Ysmael Moreno was last employed by the respondent as an oiler and was being paid at the rate of $2.50 a day. Since January 1937 he has earned $1,347.09 working at the Black Hawk mine. He testi- fied that for a while he had a better job at the Black Hawk mine than he held with the respondent. However, he stated that it was merely a temporary job which he maintained in the absence of the person who formerly held the job. Other than this, Moreno testified that he did not receive a job as desirable as the one he had previously held with the respondent. Moreno desires to be reemployed by the respondent. We find that he has not obtained regular and substantially equivalent employment. V. H. Crittenden at the time of the 1934 shut-down was employed as a craner and a shovel operator. He was being paid at the rate of $5.25 a day. Since January 1, 1937, he has been working for the Soil Conservation Service, earning $140 a month for 16 months. He testified that he has not been able to obtain employment equivalent to the job he had prior to the shut-down. He expressed a desire to be reinstated. We find that Crittenden has not obtained regular and substantially equivalent employment. NEVADA CONSOLIDATED COPPER CORPORATION 1229 Ramon Marquez was last employed by the respondent as a boiler- maker and was being paid at the rate of $3.55 a day. Since January 1937 he has earned $575 working for two construction companies and a lumber company. He testified that the jobs be has held since January 1, 1937, were not as good as he held with the respondent. He expressed a desire to be reemployed by the respondent. We find that Marquez has not obtained regular and substantially equivalent employment. Albert H. Walker was last employed by the respondent as a loco- motive engineer and was being paid at the rate of $5.10.a day. Since January 1, 1937, he has averaged $4 a day. He testified that lie has not been able to obtain a job as good as the one he held before the shut-down. He expressed a desire to be reemployed by the respond- ent. We find that Walker has not obtained regular and substantially equivalent employment. Everado Marquez was last employed by the respondent in 1932 as an assayer. Since January 10 he has earned $1,137.89 working at the Peru mine. He expressed a desire to be reemployed at the respondent's mine because it was more healthful work. He testified that the work at the Peru mine was less desirable because of the under- ground gas. He stated that the Santa Rita mine was preferable because it was an open pit mine and above ground. We find that Marquez has not obtained regular and substantially equivalent employment. Eusebio Chavez was last employed in the respondent's machine shop as a blacksmith helper. He was paid at the rate of $3.55 a day. Since January 1, 1937, he has earned $1,400 working at the Peru mine. He expressed a desire to be reemployed by the respondent and testified that he has not been able to obtain a job as good as the one he had before the shut-down. We find that Chavez has not obtained regular and substantially equivalent employment. Encarnacion Murillo was last employed by the respondent as a machine man earning $3.85 a day. Since January 1, 1937, he has earned approximately $500 working in the Peru mine'. He expressed a desire to be reemployed.by the respondent and testified that lie has not received as good a job as the one he had with the respondent prior to the shut-down. We find that Murillo has not obtained regular and substantially equivalent employment. Cipriano Esqueda was last employed by the respondent as a car repairman, being paid at the rate of $3.25 a day. Since January 1, 1937, he has earned approximately $1,144.70 working for the Peru Mining Company: He testified that he prefers his old position with 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the, respondent and that he has not been able to obtain a position as good as the job he held at the time of the shut-down. We find -that Esqueda has not obtained regular and substantially equivalent employment. Charles Williams was .last employed by the respondent as a loco- motive fireman and was being paid at the rate of $3.85 a day. During 1937 he worked at the Vanadium mine. For 2 months. of the year he was being paid at the rate of $3.55 a day and the rest of the time at $4.25 a day. On January 1, 1938, Williams was laid off at'the Vana- dium mine. He testified that the job at the Vanadium mine was not as good as the position he formerly held with the respondent.: Williams expressed a desire to be, reemployed at the respondent's mine. We find that Williams has not obtained regular and substantially equiva- lent employment. We shall order the respondent to offer immediate employment to these 26 individuals. Beginning in 1939 the respondent proceeded to hire a number of the complainants. A list of such complainants, together with the dates upon which they were hired, is set forth in Appendix C, attached hereto. If the respondent had not already hired these individuals, we would order it to offer them employment at the same or sub- stantially equivalent positions which they would have secured, in- cluding any seniority or other rights or privileges they would have acquired, had the respondent not unlawfully discriminated against them. While the record shows that these individuals have been hired- by the respondent, it does not disclose whether they have secured such employment. We shall, therefore, order the respondent to offer immediate employment, under the conditions set forth above, to the individuals named in Appendix C who have not already received such employment. The respondent contends that it should not be compelled to employ Juan Castro, Antonio Esqueda, Genaro Grijalva, and Felipe Avalos because their physical condition is such that they cannot work. This position is predicated upon evidence adduced at the hearing that Cas- tro was afflicted with apoplexy in June 1939; that Esqueda and Avalos were offered employment on September 20 and November 27, 1939, respectively, but were rejected on the ground that they could not pass the physical examination; and that Grijalva was disabled on August 23, 1937, and has been unable to work since that time. Since the respondent's contention is borne out by the record, we shall not order it to offer employment to these individuals. Frank Dull, who was discriminatorily refused employment, testified that he did not desire employment with the respondent, that he pre- ferred to work at the Asarco mine where lie was employed at the time NEVADA CONSOLIDATED COPPER CORPORATION 1231 of the hearing. We shall not order the respondent to offer him employment .41 In accordance with the foregoing, we shall order the respondent to offer to the employees named in Appendix D, attached hereto, imme- diate employment at the same or substantially equivalent positions at which they would have been employed, including any seniority or other rights or privileges they would have acquired had the respondent not unlawfully discriminated against them. We have already indicated that under ordinary circumstances, in. order to remedy the respondent's unfair labor practices, we would order it to make whole the individuals it has discriminatorily refused to hire. The extent of the back pay which the respondent. will be required to pay to the employees discriminated against needs to be determined more precisely. We have found that the respondent discriminated against certain complainants by "blacklisting" them because of their union activities and membership. The record shows that the majority of such com- plainants applied for employment before or within a reasonable time after the reopening of the mine. As to those who failed to apply for employment, we have found that. they did not do so because of the respondent's unfair labor practices in refusing to hire union men. We find that if the respondent had not discriminated against such persons, they would have been employed shortly after the mine re- opened. However, since it is impossible to ascertain the order in which the respondent would have employed such complainants if it had not discriminated against them, we shall fix a date marking the end of a period within which the respondent could have hired all of them. The evidence discloses that by February 1, 1937, the respond- ent had hired 269 new employees at Santa Rita and 302 employees at Hurley. We find that by February 1, 1937, the respondent could have employed all of the blacklisted complainants which it discrim- inatorily refused to hire. Accordingly, back pay for such employees will be computed from February 1, 1937, with certain exceptions to be noted below. As to the persons whom we have found the respondent discrim- inated against but who* were not on the blacklist, the record shows 45 The respondent also contends that Juan Cordova, Ray Gumfory, Julian Horcasitas , Miguel Garcia, Eustacio Horcasitas, and V. H. Crittenden testified that they did not desire employment with the re- spondent . The record reveals that Cordova, when asked at the hearing whether he wanted his job back with the respondent replied, "If it is recognized by the Union, yes." It is clear that this statement was not intended as a refusal to accept employment with the respondent . Indeed, the record shows that Cordova accepted employment with the respondent on November 7, 1939 . With respect to the remaining com- plainants who offered similar qualifications to their acceptance of employment from the respondent, if such employment were offered , it is clear that said complainants merely intended to refuse employment if the respondent continued to discriminate against them because of their union activities and membership. Such qualifications cannot be considered as a refusal to accept employment since the respondent is bound by the Act not to so discriminate. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that all except Juan Jaurigui and Felipe Avalos applied for employ- ment before February 1, 1.937. We shall, therefore, order that back pay be computed as to all of them, except Jaurigui and Avalos, from February 1, 1.937. Jaurigui applied for work on March 15, 1937, while Avalos applied some time in April 1937. We shall, therefore, order that back pay be computed as to them beginning from March 15 and April 30, 1937, respectively. With respect to Lee Goetz and Asa T. Carr, the record shows that the complaint and charges were amended to include these two indi- viduals at the opening of the first hearing. However, neither of them appeared.or testified at the hearing. The Trial Examiner dismissed the complaint as to Goetz but did not mention Carr. At the second hearing, held on December 7, 1939, the names of these two individuals were reinstated to the complaint and charges. Also, on December 7, 1,939, the complaint and charges were amended to include the names of J. L. McCraney and Simon Sias. These four individuals appeared and testified for the first time at the second hearing on December 7, 1939. We have found that the respondent discriminated against them by refusing to hire them. In view of the foregoing facts, we shall order that back pay for Carr, Goetz, McCraney, and Sias be com- puted from the date of their appearance at the second hearing.46 In summary, back pay for the individuals whom the respondent discriminatorily refused to hire will be computed from February 1, 1937, except that in the case of Juan Jaurigui it will be computed from March 15, 1937; in the case of Felipe Avalos from April 30, 1937; and in the cases of Carr, Goetz, McCraney, and Sias from December 7, 1939. Our order for back pay to the complainants found to have been discriminated against will continue, with certain exceptions rioted below, to the date when the respondent offers them employment. As noted above, the respondent hired the complainants named in Appendix C. Back pay for those individuals will cease upon the dates that they were hired, as indicated in Appendix C, except that such of the individuals named in Appendix C as were not hired to the same or substantially equivalent positions to those which they would have secured if the respondent had not discriminated against them shall be made whole for any loss of pay they have suffered since they were hired by reason of the respondent's failure to employ them in such positions. We have found that Juan Castro, Antonio Esqueda, Genaro Gri- jalva, and Felipe Avalos were unable to accept employment with the respondent because of physical disabilities. Castro was. disabled on 18 Cf. Matter of Inland Lime & Stone Company and Quarry Workers International Union of North America, Branch No . 559, 8 N. L. it. B. 944. NEVADA CONSOLIDATED COPPER CORPORATION 1233 June 1, 1939; Esqueda on September 20, 1939; Avalos on November 27, 1939; and Grijalva on August 23, 1937. Our order shall provide that the respondent's liability for back pay to these individuals shall terminate on the dates when their disabilities occurred. We ha ve found that Frank Dull was working at the Asarco mine at the time of the hearing and did not desire reinstatement. The respondent will be required to give back pay to Dull to the date upon which he acquired the position he held at the time of the hearing. We have heretofore indicated the dates from which we shall order the respondent to make whole the employees it has discriminated against, and the dates on which the back pay shall cease running, or if the back pay is still running, the event which will terminate the respondent's liability for it, namely, the offer of employment to the employees in question. In accordance with the foregoing, we will order the respondent to make whole Felipe Avalos, Juan Castro, Frank Dull, Antonio Esqueda, Genaro Grijalva, and each of the persons listed in Appendices C and D for any loss of pay eacl.>, may have suffered during the period from the dates heretofore indicated as applicable to each individual, to the date of the offer of reinstatement or the date upon which we have heretofore indicated back pay would terminate for certain individuals, less the net earning 47 of each during such' period. The record shows that Eustacio Horcasitas and-Emilio Munoz, two of the complainants whom we have found were discriminatorily refused employment, died on April 20, 1939, and September 10, 1939, respectively. In view of these facts we shall not order the respondent to offer them employment. However, under such circumstances their personal representatives are entitled to a sum of money equal to the amount they would have normally earned as wages from the date of the refusal to hire, February 1, 1937, to the date of their respective deaths, less their net earnings 48 during said period. Accordingly we shall order the respondent to pay over to the personal representatives of Eustacio Horcasitas and Emilio Munoz such amounts.49 47 By "net earnings" is meant earnings less expenses , such as for transportation , room , and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the unlawful discrimination against him and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county , municipal , or other work -relief projects are not considered as earnings , but as provided below in the Order, shall he deducted from the sum due the employee, and the amount thereof shall he paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. It . B. 219, enf d. as modified as to other issues, Republic Steel Corporation v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A. 3), cert . granted as to this issue 309 U. S. 684. 4 8 See footnote 47 supra. 1' See National Labor Relations Board v . Hearst, et at,, 107 F . (2d) 658 (C. C. A. 9), enf'g as mod . Matter of William Randolph Hearst, et at., and American Newspaper Guild, Seattle Chapter, 2 N. L. It . B. 530. . 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter dated August 8, 1940, the respondent submitted a. photo- static copy of a death certificate showing that T. H. Cooley died on April 5, 1940. This certificate is hereby made a part of the record.. In accordance with the procedure outlined in the previous paragraph we shall order that the respondent pay over to the personal rep- resentative of T. H. Cooley a sum of money equal to the amount he would have normally earned as wages from the date of the discrimi- nation against him, February 1, 1937, to the date of his death, April 5, 1940, less his net earnings 60 during said period. al Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Union of Mine, 1\4Iil1 and Smelter Workers, and Locals Nos . 63 and 69 thereof, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Felipe Avalos, Juan Castro, Frank Dull, Antonio Esqueda, Gen.aro Grijalva, Emilio Munoz , Eustacio Horcasitas, and T. H. Cooley, and of the persons listed in Appendices C and D, attached hereto, thereby discouraging membership in the Union , the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The operations of Kennecott and the Store Corporation occur in commerce, within the meaning of Section 2 (6) of the Act. 6. By failing to employ Refugio Apodaca , Juan Arostique, 0. W. Booth, Aurelio Chavez, Juan Gonzalez , Isaac Greear, Antoni Guenero, Tony Guerro, Filipe Huerta, Charles Johnson, Rafael Lardisabel, Thomas Lottriz, Jesus Martinez, Teodoro Misquez , Guillermo Pla- cencio, Antonio Quesada, Teodoro Rios, David Saenz , Gilbert Saenz, Jesus Saenz , Ralph Saenz , Antonio Sierra , Encarnacion 80 See footnote 47, supra. 51 The respondent suggests that, since the death certificate indicates that Cooley suffered from cancer of the stomach for four years and that this ailment was the immediate cause of his death, it would be unlikely that he would have been physically able of holding down any job which required any manual labor since January 1 , 1937. There is no support for this suggestion on the record. However, if such is the fact, the question raised is one of compliance with our order , since our order provides for such contingency by limiting the sum of money to be paid over to the personal representative of Cooley to the amount he would normally have earned as wages had he not been discriminated against. NEVADA CONSOLIDATED COPPER CORPORATION 1235 Dominguez, Maximo Gomez, Jerry Gonzales, Pedro Herrera, Maclo- vio Huerta, Mariano Placencio, Gilly Rodriquez, Paulino Rodriguez, Pedro Saiz, and Gil Salais, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act. . .7. By failing to employ David B. Saenz, the Store Corporation and Kennecott have not engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Nevada Consolidated Copper Corporation, New York City, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union of Mine, Mill and Smelter Workers, Locals Nos. 63 and 69, or in any other labor organization of its employees, by refusing to hire, discharging, or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing 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, and 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to the persons named in.Appendix D immediate employ- ment at the same or substantially equivalent positions at which they would, have been employed, including any seniority or other rights and privileges they would have acquired, had the respondent not unlawfully discriminated against them; (b). Offer immediate employment at the same or substantially equivalent positions at which they would have been employed, includ- ing any seniority or other rights and privileges they would have acquired had the respondent not discriminated against them, to the persons named in Appendix C who have not already received such employment; (c) Make whole the persons listed in Appendix D, with the exception of Asa T. Carr, Lee Goetz, J. L. McCraney, and Simon Sias, for any 1236 DECISIONS OP NATIONAL LABOR RELATIONS BOARD loss of pay. each may have suffered by reason of the respondent's dis- criminatory refusal to employ them by payment to each of them, respectively, of a sum of money equal to that which each would nor- mally have earned as wages during the period from February 1, 1937, to the date employment is offered, less the net earnings b2 of each during said period; deducting, however, from the amount otherwise due to each of them monies received by them during that period for work, performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied funds for said work- relief projects; (d) Make whole Asa T. Carr, Lee Goetz, J. L. McCraney, and Simon Sias for any loss of pay each may have suffered by reason of the respondent's discriminatory refusal to employ them by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from December 7, 1939, to the date employment is offered, less his net earn- ings 53 during said period; deducting, however; from the amount other- wise due to each of them monies received by them during that period for work performed upon Federal, State, comity, municipal, or other work-relief projects; and pay over the amount so deducted. to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied funds for said work-relief projects; (e) Make whole the persons named in Appendix C, with the excep- tion of Juan Jaurigui, for any loss of pay each may have suffered by reason of the respondent's discriminatory refusal to employ them by payment to each of them respectively, of a sum of money equal to that which each would normally have earned as wages during the period from February 1, 1937, to the date each was employed by the respondent, as indicated. in Appendix C, less the net earnings 54 of each during said period; deducting, however, from the amount otherwise due to each of them monies received by them during that period for work performed upon Federal, State, county, municipal, or -other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied funds for said work- relief projects; (f) Make whole Juan Jaurigui for any loss of pay he may have suffered by reason of the respondent's discriminatory refusal to employ him by payment to him of a sum of money equal to that which he 52 See footnote 47, supra. E3 See footnote 47, supra. 54 See footnote 47, supra. NEVADA CONSOLIDATED COPPER CORPORATION 1237 would normally- have earned as wages from March 15, 1937, to September 27, 1939, the date 'he was hired by the respondent, less his net earnings-15 during said period; deducting, however, from the amount otherwise due to him monies received by him during that period for work' performed upon Federal, State, county, municipal, or other. work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State; county, munic ipal, or other government or' governments which supplied funds for said work-relief projects; (g) Make whole the persons named in Appendix C who have not been hired 1by the respondent in the same or substantially equiv- alent positions -to those which they would have secured if the re- spondent had not discriminated against them, for any loss of pay each may'have suffered by reason of the respondent's failure to hire them in such positions, by payment to each of them, respectively, of a sum of 'money equal to that which each would normally have earned as wages if he had been hired in such position, during the period from the ' date each was employed by the respondent, as indicated in Appendix C, to the date when the respondent employs him in such position, less his earnings 56 during such period; (h) Make whole Juan Castro for any loss of pay he may have suffered by reason ' of the respondent's discriminatory refusal to employ him by payment to him of a sum of money equal to that which he would .normally have earned as wages from February 1, 1937, to June' 1, '1939, less his net earnings 57 during said period; deducting, however, from the amount otherwise due to him monies received by him during that period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted 'to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied funds for said work-relief projects; (i) Make whole Antonio Esqueda for any loss of pay he may have suffered by reason of the respondent's discriminatory refusal to employ him by-payment to him of a sum of money equal to that which he would normally have earned as wages during the period from February 1, 1937, to September 20,; 1939, Jess his net earnings 68 during said period; deducting however, from the amount otherwise due him monies received by him during that period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the' amount so deducted to the appropriate fiscal agency of the 05 See footnote 47, supra. 56 See footnote 47, supra. 67 See footnote 47, supra. 58 See footnote 47, supra. 323429-42-79 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federal, State, county, municipal, or other government or governments which supplied funds for said work-relief projects; (j) Make whole Genaro Grijalva for any loss of pay he. may have suffered by reason of the respondent's discriminatory refusal to hire him by payment to him of a sum of money equal to that which he, would normally have earned as wages from February, 1, ,1937, to August 23, 1937, less his net earnings 69 during said period; deducting,, however, from the amount otherwise due to him monies received by" him during that period for work performed upon Federal, State, county, municipal, or other work-relief. projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county,. municipal, or other government or governments which supplied funds for said work-relief projects; (k) Make whole Felipe Avalos for any loss of pay he may have suffered by reason of the respondent's discriminatory refusal to hire him by payment to him of a sum of money equal to that which he would normally have earned as wages from April 30, 1937, to Novem- ber 27, 1939, less his net earnings 60 during said period; deducting, however, from the amount otherwise due to him monies received by him during that period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied funds for said work-relief projects; (1) Pay over to the personal representatives of Eustacio Horcasi- tas, T. H. Cooley, and Emilio Munoz, respectively, a• sum of money equal to the amount each of them would have earned as wages from February 1, 1937, the. date of the respondent's refusal to hire them, to the date of their respective deaths, less their net earnings 81 during such period; deducting, however, from the amounts otherwise due said employees monies received by them during that period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied funds for said work-relief projects; (m) Make whole Frank Dull for any any loss of pay he may, have suffered by reason of the respondent's refusal to hire him by payment to him of a sum of money equal to that which he would normally have earned as wages from February 1, 1937, to the date upon which he secured the employment in which he was engaged at the time of the hearing in this proceeding, less his net earnings 82 during said period; 59 See footnote 47, supra. eo See footnote 47, supra. 61 See footnote 47, supra. 62 See footnote 47, supra. NEVADA CONSOLIDATED COPPER CORPORATION 1239 deducting, however, from the amount otherwise due to him monies received by him during that period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied funds for said work-relief projects; (n) Post immediately in conspicuous places throughout its mine at Santa Rita and its mill and smelter at Hurley, New Mexico, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) ' and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) through (m), inclusive, of this Order; and (3) that the respond- ent's employees are free to become or remain members of the Inter- national Union of Mine, Mill and Smelter Workers, Locals Nos. 63 and 69, and that the respondent will not discriminate against any employee or applicant for employment because of membership or activity in that organization; (o) Notify the Regional Director for the Twenty-second Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended', be, and it hereby is, dismissed in so far as it alleges that the respondent discrimi- nated in regard to the hire and tenure of employment of Refugio Apodaca, Juan Arostique, 0. W. Booth, Aurelio Chavez, Juan Gonzalez, Isaac Greear, Antoni Guenero, Tony Guerro, Filipe.Huerto, Charles Johnson, Rafael Lardisabel, Thomas Lottriz, Jesus Martinez, Teodoro Misquez, Guillermo Placencio, Antonio Quesada, Teodoro Rios, David Saenz, Gilbert Saenz, Jesus Saenz, Ralph Saenz, Antonio Sierra, Encarnacion Dominguez, Maximo Gomez, Jerry Gonzales, Pedro Herrera, Maclovio Huerta, Mariano Placencio, Gilly Rodriguez, Paulino Rodriguez, Pedro Saiz, and Gil Salais. AND IT IS FURTHER ORDERED that the complaint against the Store Corporation and Kennecott be, and it hereby is, dismissed. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX All Persons Named in Original Complaint Alvarado, Bonifacio Arispe, Gregorio Arellano, Emilio Arostegui, Juan Arrey, Primitivo Avalos, Felipe Avalos, Marcelo Beck, Joseph W. Benjamin, J. L. Benjamin, T. B. Candalaria, Juan Castro, Juan Chavez, Eusebio Cordova, Juan Costales, Francisco Crittenden, V. H. Cruz, Antonio Delgado, Nicolas Dominguez, Encarnacion Elvira, Carlos Esqueda, Cipriano Gomez, Maximo Grado, Julio P. Grijalva, Genaro Gruwell, Angus Guenero, Antoni Guerro, Tony Herrera, .Pedro Hicks, Ira J. Hobbs, Charles C. Hopkins, William Horace Horcasitas, Eustacio Horcasitas, Julian Horcasitas, Ramond Howe, John Huerta, Felipe Huerta, Maclovio Hunter, Elmer Jauregui, Geronimo Johnson, Charles Kemp, Joseph I. Kirker, Rafael Lottritz, Thos. C. Moreno, Ysmael Murillo, Encarnacion Munoz, Emilio Perea, Bautista M. Placencio, Guillermo Placencio, Mariano Quesada, Antonio Rodriguez, Paulino Rodriguez, Gilly Saenz, Gilbert Saenz, Jesus Sa;enz, Ralph Serna, Jose Sierra, Antonio Smith, Kenneth Hardie Walker, Albert H. Weaver, L. E. Zamora, Thomas 63 The spelling of many names appearing in the appendices varied in the record. NEVADA CONSOLIDATED COPPER CORPORATION 1241 Persons Added to Original Complaint by Amendment at First Hearing Allen, Earl Lopez; Ignacio Apodaca, Dionicio Macias, Julian Apodaca, Refugio, Marquez, Everardo Baxter, Joseph W. Marquez, Ramon Booth, O. W. Martin, Roy Carr, Asa T. Martinez, Jesus Castenada, Juan Misquez, Teodoro Chavez, Aurelio Orosco, Jose Cooley, T. H.. Padron, Conrado Dull, Frank Ramirez, Francisco Esqueda, Antonio Ramirez, Nicolas Garcia, Miguel Rios, Teodoro Goetz,.Lee Robertson, J. L. Gonzalez, Jerry. Rodiguez, Ben Gonzalez, Jua11 Saenz, David Greear, Isaac Saiz, Pedro Gumfory, Ray Salais, Gil Herrera, Pedro Vera, Juan Hileman, Robert Wedell, Charles W. Jaurigui, Juan Williams, C. H. Lopez, Francisco Winsatt, Bailey Persons Added to Complaint by Amendment at Second Hearing ea Byers, George Jaurigui, Julian (also Carr, Asa T. known as Jauri) Gallegos, Martin Johnson, Charles Goetz, Lee Lardizabal, Rafael Greer, William Martin, Roy Gumfory, C. M. McCraney, J. L. Gumfory, M. O. Murillo, Encarnacion, Jr. Heredia, Florencio Murillo, Raymundo Hileman, Robert Sias, Simon Hill, E. C. Winsatt, Bailey 64 The names of Asa T. Carr, Lee Goetz, Robert,nileman, Roy Martin, Bailey Winsatt, and Charles Johnson appear twice in Appendix A. 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B Complainants on Tempest's Blacklist as to Whom the Respondent Does Not Specifically Raise a Defense Allen, Earl Hicks, Ira Alvarado, Bonifacio Hopkins, William Horace Arellano, Emilio Horcasitas, Eustacio Baxter, Joseph Hunter, Elmer Benjamin, J. L. Lopez, Francisco Benjamin, T. B. Lopez, Ignacio Candalaria, Juan Macias, Julian Castenada, Juan Marquez, Everardo Castro, Juan Marquez, Ramon Chavez, Eusebio Munoz, Emilio Delgado, Nicolas Murillo, Encarnacion Esqueda, Cipriano Perea, Bautista Esqueda, Antonio Walker, Albert H. Grijalva, Genero Weaver, L. B. Gruwell, Angus Williams, Charles Herrera, Pedro APPENDIX C Complainants. Hired 65 Name Hired at Date hired Arellano, Emilio___________ Santa Rita_____________ 9-20-39 Arrey, Primitivo___________ Hurley ----------------- 11-7-39 Avalos, Marcello__________ Hurley ----------------- 11-11-39 Baxter, J. W______________ Santa Rita_____________ 11-7-39 Benjamin, J. L____________ Santa Rita_____________ 9-19-39 Candelaria,Juan ---------- Santa Rita_____________ 11-18-39 Cordova, Juan Santa Rita_____________ 11-7-39 Costales, Francisco -------- Santa Rita------------- 1-23-39 Delgado, Nicolas__________ Santa Rita_____________ 9-21-39 Elvira, Carlos_____________ Hurley_________________ 9-27-39 Esqueda, Cipriano--------- Santa Rita _____________ 9-20-39 Guwell, Angus ------------ Santa Rita_____________ 9-20-39 Herrera, Pedro______ Santa Rita_____________ 10-14-39 Hopkins, Williams Horace-- Santa Rita---------- - -- 11-12-39 Hunter, Elmer W----------- Santa Rita_____________ 11-12-39 Jaurigui,Juan ------------- Hurley ----------------- 9-27-39 Lopez, Francisco---------- Santa Rita_____________ 9-20-39 Perea, Bautista____________ Santa Rita_____________ 11-7-39 Robertson, James I--------- Santa Rita------------- 11-11-39 Serna, Jose_______________ Hurley_________________ 11-10-39 Walker, Albert H__________ Santa Rita_____________ 11-21-39 Wedell, Charles ------------ Santa Rita------------- 11-15-39 -Williams, Charles H------- Santa Rita------------- 11-20-39 Zamora, Thomas__________ Hurley_________________ 11-7-39 65 This list does not include the names of the complainants whose cases we have dismissed. NEVADA CONSOLIDATED COPPER CORPORATION APPENDIX D List of Complainants Allen, Earl Alvarado, Bonifacio Arispe, Gregorio Beck, Joseph Benjamin; T. B. Carr, Asa T. Castenda, Juan Chavez, Eusebio Crittenden, V. H.. Cruz, Antonio Garcia, Miguel Goetz, Lee Grado, Julio Gumfory, Ray Hicks, Ira. Hobbs, Charles Horcasitas, Julian Horcasitas, Ramond To Be Offered Employment Howe, John Jaurigui, Geronimo Kemp, Joseph Kirker, Rafael Lopez, Ignacio Macias, Julian Marquez, Everado Marquez, Ramon McCraney, J. L. Moreno, Ysmael Murillo, Encarnacion Padron, Conrado Sias,' Simon Smith, Kenneth Vera, Juan Waggoner, Orvil Weaver, L. B. 1243